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S n5 • 








ILorD CbanceHor ^Dom 









fLotH C&ancellor 6IDon; 






By clement TUDWAY SWANSTON, Esq. 
OF Lincoln's inn, barrister at law. 



1818, 1819.— 58, 59 GEO. III. 


. . V 








Lord Eldon, Lord High Chancellor, 

Sir Thomas Plumer, Master of the Bolls. 

Sir John Leach, Vice-chancellor. 

Sir Samuel Shepherd, Attomey-General. 

Sir Robert Gifford, Sclicitor^General. 





^BBIS V. Winter 

Abdy, Ash v. 
Acland v. Atwell 
Adair, Potts v. 
Adye v. Feuiileteau 
Alder v. Fouracre 
Angerstein v. Clarke 

" V. White 

Ash V. Abdy 
Ashwell, SesT v. 
Attorney-General v» 


of Coventry 



of Fowey 


Gaunt 148 







Attorney-General v. Lord 




Backhouse v. Mohun 434 
Baker, Thornborough v. 628 

Bamfield, Blad v. 604 

, Cook V. 607 

Barnes v. Saxby 232 

Barrit v. Barrit 395 

Bateson, Newman v. 689 

Bayley v. Edwards 703 

Beak v. Beak 627 

Bealing, Neale v. 304 

Bickerton, Ryder v. 80 

Biou, James v. . 234 

Birch, ex parte 98 

, Wadman v. 230 

Bird V. Littlehales 299 

Bishop, Coke v. 401 







Blackburn v, Jepson 


Clavering, Brummell v. 


Blad's Case 


Clindon, Stokes v. 


— V. Bamfield 


Coke V. Bishop 


Bland, Witham v. i 

276, 277 

Coles, East India Com- 

Bolton V. Bolton 


pany V. 


Boughton V. Pierrepoint 


Colhoun, Francklyn v. 


Boulcott, Duckworth v. 


Collet V. Butler 


Bowreman, Pym v. 


Collins, Crawshay v. 


Bowyer, Cikrre v. 


Comber, Child v. 


Bradwell v. Gatchpole 


Cook V. Bamfield 


Brnindling, Newmarch v. 


V. Fountain 


Brandon v. Brandon 


Coroner of Salop, in re 


Broughton, Martyn i). 


Cosserat v* Tollett 


Brown, Elliott v. 


Coulston V. Gardiner 


Brummell v. Clavering 


Coventry's Case 


Buckinghamshire, Earl 


Cowper, Bishop of Here- 


w, Hobart 


ford V. 


Btlllock u. Bullock 


Craufurd, Palmer v. 


Burgh V. Frauds 


Crawshay v. Collin3 


Burroughs v. Oakley 


Crofts V. Oldfield 


Butler, Collet v. 


Crosley v. Clare 


Cfadell V. Smith 

Curre v. Bowyer 




Qlermarthen, Marquis 


Dean and Chapter of Saint 

V. Hawson 


Paul's, Herring v. 


Ciitey V. Stafford 


Dee, Parker v. 


, Rex V. 


Delabere v, Norwood 


Carr, HoUis v. 


Denew v. Stock 


Cart V. Hodgkin 


Doran v. Wiltshire 


Catchpole, Bradwell v. 


Drewry v. Thacker 


Cavendish, Gabbett i;. 


Duckworth v. Boulcott 


Chadwin, ex parte 


Chandler, Gascoyhe v. 



Child V. Comber 



Clare, Crossley v. 


East India Company v. Cole 


Clark, Angerstein v. 


CJarkson, Morris v. 


ton V. 






Edwards, Bayley t;. 70S 

Elliott 17. Browp 489 

England, Bank oi^ Mor- 

rice V. 573 

Faulkner, Morse v. 
Fearris, Wright v. 
Feuilleteau, Adye v. 
Fountain, Cook v. 
Fouracre, Alder v. 
Fowey, Mayor of, Attorney- 
General V. 
Francis, Burgfa v. 







Gabbett v. Cavendish 
Gardiner, Coulston v. 
Gascoyne v. Chandler 
Gaunt, Attorney-General xh 
Gee, Paget ». 
Grordon v. Gordon 
Goring v. Goring 
Grant, Jewon v. 
Grayson, Roveray v. 
Green v. Sparrow 
Gregor v. Kemp 
Guardians of the Poor, The, 

Jones V. 
Gwinnet, Shepherd v. 


Hack V. Tuck 
Halked v. Marke 
Hamblyn v. Ley 
Harcourt v. Ramsbottoin 
Vol. hi. 




Harley, Lord, Lord Pel- 
ham V. 291 
Hawkey, Mayne v. 93 
Hawson, Marquess of Caer- 

marthen v. 294 

Hereford, Bishop of, v* 

Cowper 158 

Herring v. The Dean and 

Chapter of St. Paul's 492 
Hobart, Earl of Bucking- 
hamshire V. . 186 
Hodgkin, Cart v. 160 
Holies V. Carr 6S8 

». Hutchinson WS 

Hook 17. Kinnear 417 

Hopkinson o. Leach 98 

Howard o. Okeover 421 

Hudson, Peyto v. 363 

Hutchinson, HoUis v. 6M 

James v. Biou 934 

Jepson, Blackburn v. 132 

Jermyn, ex parte 131 

Jewon o. Grant 659 

Jones V. The Guardians of 
the Poor 203 


Kemp, Gregor v. 404 

Kmder, Kouth v. 144 

Kinnear, Hook v. . 417 

Kinnoul, Earl of, v. Money 202 
Kynaston v. The East India 
Company ^ 247 


Land, Sealy tb S68 

Launderfield, Attorney Ge- 
neral t;. 416 
Lawley v, Walden 113 
Leach, Hopkinson v. 98 
Lennard, Wilmot v. 6^2 
Leiringston, Vandebeiide v. 625 
Lincoln, Earlf Woodward v. 626 
Lide, White v. 342 
Idttlehales, Bird v. 299 
Liverpool, Earl of, Princess 

of Wales V. 567 

London, City oi^ t;. Thomson 265 


Mackintosh v. (^plvie 365 

Marke, Halked v. 444 

Martyn v. Broughton 232 

Matthews v. Paul 328 

Maynard v. Mosely 651* 653 
Mayne v. Hawkey 93 

Medwin v. Landham 685 

Mohun, Backhouse v* 434 

Mon^, Earl of Kinnoul v. 202 
Marrice v* The Bank of 

England 573 

Morris v. Clarkson 558 

Morse v. Faulkner 429 

Mordmer v. West 228 

Mosely, Maynard v. 651. 653 
Munyard v. New 119 

Newcastle, Duchess o^ Lord 

Newman v. Bateson 689 

■ ■, Thorn v. 603 

Newmarch v. Brandling 99 

Nicol V. Stockdale 687 

Norwich, Bishop of. Silver v. 1 1 2 
Norwood, Delabere v. 144 

Nower, Pigott v. 534 

Nurse v, Ycrworth 608 


Keale v. Bealing 
New, Munyard v. 



Oakley, Burroughs v, 
Ogilvie, Mackintosh v. 
Okeover, Howard v. 
Oldfield, Crofts v. 




Paget V. Gee 694 

Palmer v. Crawford 482 

r. Vaughan 173 

Parker v. Dee 529 

Partridge, ex parte 392 

— — ^ Whitehouse v. 365 

Paul, Matthews v. 328 

Pelham, Lord, v. Lord Har- 
ley 291 

<;. Duchess of 
Newcastle 284. 289, 290. 293 
Pei^nbroke v, Thorpe 437 

Peterborough, Bishop of. 

White V. J 09 

Peyto V. Hudson 363 

Pierson v. Robinson 139 

Pierrepoint, Boughton x;. 550 
Pigott V. Nower 534 

Pinheiro v. Porter 362 






306. 308 

306. 308 

Porter, Pinbeiro v. 
Potts V. Adairs 
Prickett, ex parte 
Pym f . Bowreman 


Railton v. Woolrick 

Ray i;. 

Rex V, Carew 
Ridley, Rowley v. 
Robinson, Pierson v. 
Routh V. Kinder 
Roveray v. Grayson 
Rowley v. Ridley 
Ryder v. Bickerton 


Salop, Coroner of, in re 181 

Sandham, Medwin v. 685 

SaviUe v. Tancred 141 

Saxby, Barnes v. 232 

Shepherd v, Gwinnet 151 
Silver v. The Bishop of 

Norwich 112 

Slingsby's Case 1 78 

Smith, Cadell v. . 308 

Sparrow, Green ». 408 

Spiller V. Spiller 556 

Squirrell v. Squirrell 250 

StaflTord, Carey v. 427 
Stamford, Lord, Attorney 

General v. 249 

Stock, Denew v. 662 

Stockdale, Nicol v. 687 

Stokes V. Clindon 1 50 

V. Verrier 634 

Symonds, Walker v. 1 

Tabor v. Tabor 
Tancred, Saville v. 
Thacker, Drewry v, 
Thomson, City of London 
Thorn v, Newman 
Thomborough v. Baker 
Thorpe, Pembroke v. 
Tollett, Cosserat v. 
Tonson v. Walker 
Trotter, Wheeler v. 
Tuck, Hack v. 




Vandebende v. Levingston 625 
Vaughan, Palmer v. 173 

Verrierr Stokes v. 634 


Wadman v. Birch 
Walden, Lawley ». 
Wales, Princess olj r. Earl 

of Liverpool 
Walker v. Symonds 

, Tonson »• 

Webb V. Webb 
Webster w. Webster 
Welham, Younger v. 
West, Mortimer i\ 
Wheeler v. Trotter 
White, Anon. v. 
r. The Bishop 




Whitehouse v. Partridge 365 
Wilkinson v. Wilkinson 515 



i;. Lisle 



Willis V. Parkinson 23S 

Wiimot V. Lennard 682 

Wiltshire, Doran v. 699 

Winchester, Bishop of, v. 

Wolgar 49S 

Windus, ex parte 96 

Winter, Abbis v, 578 

Witham r. Bland 276, 277 

Wolgar, Bishop of Win- 
chester V. 493 

Woodward v. Earl Lincoln 626 
Woolrick, Railton v. 247 

Wright V. Fearris 681 

Younger v. Welham 
Yerworth, Nurse v. 


I • 







Commenping in the Sittings before 

58 Geo. III. 1818. 

The Rev. ADAM JOHN WALKER and LOVE- 1818. 
DAY his Wife, late LOVEDAY WHITMORE, ^^^7^^,. 
^instcr, WILLIAM ROBERTS, since deceased, I6.'i8,'2i'.2j. 
and JOHN SANDERSON, Plaintiffs; jJ^Xia 

Juli/ 6. 

WILLIAM SYMONDS, since deceased, JOHN 
WHITMORE, (by Original Bill,) Defendants. 

DAY his Wife, and JOHN SANDERSON, 


JOHN LILLY, (by Bill of Revivor,) Dbfendants. 

Vol. III. B THE 



A d«ed of Tf^HE bill filed in Juty^ 1802, and amended in April j 

compromise A 1304 stated, that by indeiiture^ dated the 17th of 
executed by a 7 7 ^ y 

cestuimie trust, January^ 1780, made between Isaac Donnithoyiie, of the 
w^Lntatira ^^^ P^^ ' Nic/iolas Doimithmme, Thoims Griffith, and 
and creditors William Symonds, one of the Defendants, of the second 
trustee guilty P^"^ 5 J^^^ JVhitmore, and Johanna his wife, another 
of a breach of of the Defendants, of the third part ; reciting that 
ed, and co- John Whitmore by his bond, dated the 26th of June, 

trustMs de- j ^^g became bound to Isaac Donnithmiie in the penal 

clared renion* 

fible. sum of 12,000/., conditioned for payment of 6000/. at a 

day then long past; and that there was then due for 
principal and interest thereon 7912/. 125.; and that 
Isaac Uonnithorne being desirous of making some pro- 
vision for his daughter, Johanna Whitmore, had agreed 
to assign the bond, with the sum of 7900/., principal and 
interest due thereon, to Nicholas Doniiithome, Thomas 
Griffith, and William Symonds, upon the trusts therein 
mentioned: It was witnessed, that Isaac Donnithorne, 
in consideration of natural love and affection towards his 
daughter, and in order to make some provision for her 
and her children, and for other considerations therein 
mentioned, assigned unto Nicholas Donnithorne^ Thomas 
Griffith, and William Symonds, and the survivors, their 
executors, administrators, or assigns^^the bond, and the 
sum of 7900/. thereon due, upon trust, with all con- 
venient expedition to call in the sum due upon the 
bond, and as soon as it could be received, to lay out the 
same upon mortgage of freehold lands, or upon go- 
vernment or other securities, in the names of the 
trustees ; and during the lives of John Whitmore and 
Johanna his wife, and the life of the survivor, upon 
trust, to pay the yearly interest, dividends, and produce 
thereoi^ or such part thereof as the trustees should in 
their discretion think fit^ to or for the use oiJohn Whit^ 



fiX&r'e ftfid JohaHna bis vdMBil and £h6 siWIvor,' ffifl til ijfjj, 
the iise of their child ot children^ in sucK sha]^s,' aftS ^ 
at suth times^ as thej shoiild think fit i afid itftir tii^ 
death of Mn Whitmore and Johdhna hij ^ile; tb jitf$^ 
tbfe said 79007. to and anionj; all ^d ivefy thfe child tt^ 
cUOdrdi of Jb^n WhiMare and J^okdrM His wife^ ^aHi 
and share dike, if more ihan one, afi3 if btif bne,^ {b 
so^h only chOd, at his or her attaihiri^ the t^ iX 
twodty^one years, or day of marriage. 

iTie bill further stated, that Isaac boHklthorki dM 
soon after the date of the indenture, and thitt the tf U^te^ 
accepted the trusts; and in execilitioti thereof, ijl the ye^ 
178S, called in, and received firom John ^Vhittndrii tif^ 
sum df 7900/., which was secured, not oMy on the boiid 
of John Whitmoirej but also on sdine moHgage or other 
real secnHiy ; and John tVJiitmore^ In order to increase 
th^e ttiist monies to ah ^ven sum of s6dO/., when 6e pfua 
th^ 79b6I^. to file trustees advanced to tfiem' a furaier 
s\M &f \06h tipon tfa^ same trusts as the 79007. ; Umi 
JihH WfUhhore and Johanna his wife had but one child^ 
thife ][>l£3ntiff, L&veddy tVaUcevy who, at the date of the in- 
d^ti^e, was an infant of very tender years, and resided 
i^-ltfi Johankd Whitnidrei her mother, who lived apafi 

* I ' 

fi^ he^ hiisbtod, arid to whom the trustees paid three- 
foiittli^ hi the inteifd^st 6f the trust-sum, paying the other 
one-fourth to John Whitvfiore. 

TKe Dili further stated, that the Plaintiff Loveday 
jfmier ati^ained the age of twenty years in Decern^ 
ber, lidS; and having separated herself u:om ner mother, 
and not having any separate provision, and having un- 
der3febd[ ihhi she would become entitled, at the death of 
her &uier and mother, to a considerable sum of money, 
ana that she was entitled to some provision for her 
mlffit^bifii^' in (be in&n ^e, but beipg ignorant of 

B S the 



the amount and particulars thereof, she, on or about the 
2Sd oi December J 1795, wrote a separate letter to each 
of the trustees, to inform them of her situation, and to 
request that some provision should be made for her sup- 
port, whereupon the trustees thought proper to allow 
her 100/. a-year out of the income of the trust property. 
That in June^ 1 799, the Plaintiffs Adam John Walke?- and 
Looeday Walker intermamed; and previous to their 
marriage, an indenture of setdement was executed, 
dated the 11th of Jitne, 1799, between Loveday of the 
first part, and Walker of the second part, and the 
Plainti£& William Roberts and John Sanderson (as 
trustees) of the third part; whereby, after reciting 
that Loveday^ after her father and mother's decease, 
would become entided to a legacy, or porUon of 8000/., 
given by the will of her late grandfather to Nicholas 
Donnithome, William Symonds, and Thomas Griffith^ in 
trust for her benefit, it was witnessed, that in con- 
sideration of the intended marriage, Loveday^ with the 
consent of Walker^ covenanted with William Roberts 
and John Sanderson that the sum of 2000/., part 
of the sum of 8000/., should, from and after the 
decease of her &ther and mother, be paid to Walker^ 
and that the sum of 6000/., the residue thereof, 
should be paid to William Roberts and John San^ 
dersofi, or otherwise setded upon the trusts therein 

The bill further stated, that Nicholas Donnithome died 
on the 26th ofSeptember^ 1796, and by his will appointed 
his son, Isaac, who had assumed the name of Harris^ his 
executor, who proved the will, and possessed himself of 
the personal estate of his late father, and became his legal 
personal representative. That Joh7i Whitmore died in 
December, 1799", upon which event Loveday Walker ap- 
plied to William Symonds and Thomas Griffith^ as the 



•urviving trustees, named in the indentnre of Januanft 
1 780, and they consented to make an additional allow- 
ance of 50/. per annumy part of the interest of the 
trust-money, which had, in the life-time of John JVhiU 
more J been paid to him. That Thomas Griffith died in 
October^ 1800, having ^pointed the Defendant John 
Lilly his executor, who proved his will, and had pos- 
sessed assets to pay the debts of the testator : and that 
Walker J and L/yveday his vrife, being desirous that the 
sum of 8000/. should be invested in the public funds, 
or on real security, or otherwise properly secured 
for their benefit, according to the trusts of the in- 
denture o( January y 1780, had called on the Plaintiffs 
Roberts and Sanderson^ as trustees under their marriage 
settlement, to concur with them in having the same so 
invested or secured; and all the Plaintiffs had therefore 
applied to WiUiam Symonds^ since deceased, as the 
surviving trustee in the indenture, to invest the sum of 
8000/. on some public or real security, upon the trusts 
of the said several indentures. 


The bill charged, that after the trust-money had been 
paid by John Whitmore to the trustees, it was by them 
invested in a mortgage security ; but in 1790, the mort- 
gagee, or the purchaser of the mortgaged estates, gave six 
months' notice to the trustees of his intention to pay off 
the mortgage-money, and it was accordingly, in or 
about that year, paid to them, or to one of them, by the 
direction, or with the consent and concurrence, of the 
rest, and they all joined in the receipt for the same ; 
but although they had six months' notice that such 
trust-money was to be paid, they took no steps to pro- 
cure any other real or effectual security on which to 
invest it. That after the money was so received by the 
tmstees, they ought to have invested it in the public 

B S ftmdsy 


iglS. funds, or on some real secuv|fv ; but in^t^^l f^ f^iflS 
ijS?^C^ so, tney preferred the interest of Jpiti jVhi^^re ^nd 
»«iK*" i'is wifc, to tiiaf ^f fhe plainflflf \^>)i)f%i/ fr«^;fp.- 
and foj fhf sake o^ pitpciiriijg soj]ie pnifij[ ^^_((j^]^ 
of jnteij^j |)sy,9P{l ^^'\\ f^^ BKI?!''^ 'HBlJfi ff"^*^^ Wx^ 
vi^ded, or for some ofher improper cai^iie, toql^ }i8li9^ 
themselves to invest flie money in bills ty: npt^s o^ J^e 
Sp5j /firf/a Company : An4 that the trji^t igoi|ey ^;ag g^- 
i^rds, ty agreianent bptween tfie trustees, C^jletl jji fpd 
received by Ni^Iiofas DonnitAoj-iic, Tkomas ^jji^, (iiijl 
imuiam Si/monds, but th^j; did not prpyide any s^ijurjfy 
or morlingc, or endeavour jx) practjrp a(iy $uc|i, (f\\ 
rhich fo invest it; but received, or i^p^Wpsed N'chc^s 
Honnithomc U\ receive it, and jollied ((( ^g^ f?FP}W fi*" 
acquittantje loi- iL lo Joffn Wik^orcj anc} ajtei; fjij jQjg^* 
money wp received, it never was l^i(^ ou| 91; j{)y^(^, 
nttroruing to tiiedii;ei;tjonsof,tJ|9tru5^-<}eed; but T^mas 

_ iM Mid iVlUuiw ^monthf insfejid of {{jvestjpg it ^ 
reat or government security, as they ought to h^.ve ^i^^> 
consented and agreed to lend, or to {je^iQit Nic^ol^ 
Donnithome to retain it in his hands, by way of a loan 
01; ot|)efwise, unfij the Jim? of hjs death : foi; the pay- 
fp^git -t)!" ^liic}(, witji interest, he, ^veral ipont))? (tQfif 
he h^d been ^ pcrmi|.ted (o receive it, g^v^ tp 
Thomas frrt^t/f an(| fiWiqm ^/nwnds, y\iQ cpf|- 
E^n^ to accept t^e same, a boptl, or othec per- 
^onii| sejijurity. And tlie bijl charged, t|iat Thomas 
fSri^lk «nd William ^mpn{b, and ^ichoias JSontit- 
t^or^c, by ^yjng so neglected tu Jay out and invest 
tjie trusf-money, in a prpjret' nianner, and fVtUiam S//- 
m^s and y/ipmas Griffilh^ by having so consented to 
lepd, or Rerqiit l^icholas ZJiotfnitiomc to hold and re- 
tain it, wei;e a|| guilty of a breach of trust j by 
reason of w])icb they, and tlicjr estates, ought to bis 
seyerolly charged witb) °' answerable for tlie trust- 


money, or such part thereof as had been, or might be 
lost, by such breach of trust. 

The bill also charged, that Looeday WaUcet^ at the 
time she attained twenty-one, was, and long after re- 
mained, ignorant of the trust-deed, and of the contents 
thereof^ and of the exact nature of her interest therdn* 
and in what manner such interest was derived to her, and 
in what manner the money ought to have been invested: 
and that Qone of the trustees ever distinctly explained to 
her the same, as they ought to have done ; but on the 
contrary, for a long time concealed the same from, or 
kept her in ignorance thereof; and it was not until many 
applications had been made to them, and until a consi- 
derable time had elapsed, that she was able, at last, at 
different times, to obtain some information of the trust- 
deed, by short and imperfect extracts therefrom : and 
thatf or a long time after she attained twenty-one, she 
supposed that her interest in the trust-money was de« 
vi^ to her by some will of her grandfather, Iscutc 
Doaniihomej and was wholly ignorant of the existence 
of 'the tru^t-deed; and as evidence thereof the bill 
charged, that in Jamiary^ 1796, about six months aft^r 
she attained twenty-one, being desirous to be correctly 
informed as to the state and amount of her fortune, sh^ 
wrote to fFiUiam Symonds as follows, ^^ I am at present 
in a great degree ignorant, with regard to my grandfi^ 
ther's wilL I apprehend you have a copy of it, and I 
cannot conceive any impropriety in my requesting to 
see it" But William Symonds never gave any answer 
to sych application, although he then had in his posses*- 
sion the original trust-deed, or a full and correct copy 
thereof; and Loveday Walker having afterwards, through 
the medium of her friends, again applied to William 
Symonds, he furnished only some short extracts of the 
tm^t-deedy and declared that the trust-deed itself w«i 

B 4 in 




in the possession of Nicholas Donniikome^ her uncle, to 
whom he accordingly referred her ; and that sometime 
in the spring of the year 1796, having been advised by 
Nicholas Donnithome^ her uncle, to make a will, for the 
purpose of disposing of her fortune, in case of her 
death, and having some inclination so to do, but being 
sdll ignorant of the particulars of her fortune, she, in 
consequence thereof, and of William Symonds having so' 
referred her to Nicholas Donnithome, wrote a letter to 
Nicholas Donnithome^ dated the 8th of May^ 1796, to 
the following effect : — ^^ The will you recommend, and 
which I have thus long delayed making, I would wish 
to be done before I leave this neighbourhood, where I 
have a friend able and disposed to assist. The paper 
in your possession which gives me this right, and of 
which I had extracts sent, while I was with Mr. Sy- 
mondSj I would therefore be obliged to you to enclose 
. me as ^rly as you can. A professional gentleman, who 
saw those extracts, says, that the complete paper would 
be more satisfactory, and that this original is the proper 
authority to proceed upon." To which Nicholas Don- 
nithome wrote an answer to the following effect : — 
** Since I received your letter this morning, I have been 
ransacking my shattered memory, to bring to mind the 
paper you mentioned, as being in my possession. It is 
all in vain ; I have not the most distant recollection of it. 
If there is such a paper, and Mr. Symonds furnished you 
}with extracts, it must still rest with him ; but what it 
can be, I cannot conjecture. Your right is derived from 
my father's will, the probate of which (I believe) is in 
Cormoall »• and this, I apprehend, must be the complete 
paper, the original,* the proper authority, as you call it. 
As the will was proved at Hereford^ your friend may 
easily procure a copy, or such extracts as may answer 
the purpose. If I can recoUect any other paper, or 
.matter, I will write again. Let me know what your 




friend says, as nothing on my part shall be wanted.** 
That Nicholas Donnithome never gave Lc/oeday Walker 
any further information, or shewed her the original deed, 
or gave her any copy thereof; but after various applica- 
tions bad been made by means of her friends, she at 
length procured from William Symonds a copy of die 
trust-deed, but without any information of the state of 
the trust-property, or how it had been applied, or on 
what securi^ it was standing: and that having after- 
wards understood that the trust-monies were in the 
bands of Nicholas Dormithomej and that at his death 
be had left his afiSurs much involved, and that Isaac 
Harris had, by entering into various money engage- 
ments for his &ther, become also much embarrassed, 
she, on the 19th oi December^ 1796, wrote the following 
letter to William Symonds and Thomas Griffith : '^ The 
present state of the frmds is so advantageous for pui^ 
chasin^ that I think (if you have no objection) no time 
should be lost in investing the money you have in trust 
in government security. An addition to our income is 
an object by no means inconsiderable; and thou(|^ I 
have no opportunity of consulting my mother, yet I 
think it must be what she wishes. I hope, sir, you and 
Mr. Griffith will converse on this subject, and socm 
&vour me with your, opinions. I trust you will see no 
objection to comply with this request, unless it be the 
reluctance you may feel to call on my cousin, (meaning 
Isaac Harris) at a time when I greatly fear, from 
report, that his aflbirs are very much deranged. I 
should gready lament putdng him to any inconvenience; 
yet I cannot think it a sufficient reason for neglecting 
to dispose of the money to such advantage as the presen 
time offars; nor do I think I can, with justice to our- 
selves, neglect taking any step for an addition, which I 
understand a different disposal of the money would pro- 
duce." In answer to which, she received from William 




IS18. Sjfnumds and Thomas Griffith thp following letter, dated 
December 24th, 1 796 : ^^ In reply, madam, to your 
^your of the 19th instant, we can have no (Ejection of 
ins^^ting the money in the funds^ agreeable to your 
Bribes ; but we apprehend it yniX not be convenient to 
Mr. IsaoQ Dannithome (meaning haac Harris) to ad^ 
vance the sum at this juncture., Mr. and Mrs. Wiit-' 
SHore met uf last Saturday respecting the business ; and 
our jqint sentiments thereon were transmitted to Mr. 
Hardyj the solicitor, who was informed of your inten- 
tion of being in town ; therefore we referred him to you 
on 'the same occasion, and presume by this time you 
hf^ either seen or heard from him.n 

The bill charged, that no forther notice was taken to 
Ikcweday Walker of her apfdication to have the trust- 
mojiiea ealle4 in and invested ; nor did she see Mc 
Hardff^ who ^^as an attorney employed by the cre- 
ditors of Nicholas Donnithome to act for their inte* 
sest; nor did she see the paper, nor hear any thing 
of t^e joint sentiments of William S^/monds and ^omas 
Gr^hj and of her father and mother, in the letter 
mentioned to have been transmitted to "hir* Hardy, until 
the 11th of Fe^ruary^ 1797, when she was on a visit at 
Setcham in Sutry, at the house of Mx.Skerson^ whose 
wife was the daughter of Nicholas Donnithome^ ^d 
gister of I^aac Harris, and cousin of Loveday Walker $ 
bat on the morning of that day, she was informed that 
a Mr. flarcb/f accompanied by another person, would 
be at Eetcham that day to dinner, at the house of Mr. 
§herson; and she was wholly ignorant of the pur^ 
pose of their coming, save only as she understood they 
were bringing some papers with them from Hereford. 
That, in the afiemoon of the 11th of Fcbrrmry, 1797, 
lAx^Hardyy accompanied by another person, whom 
l43foeday Walker since understood to be a considerable 



creditor of Nicholas Bomutiome and lutac Hatris, aod )9)l' 
who wa^ one of the trustees under some trust-deed w^»,SL 
relatiog to their a&irSf arrived at the bousp of Mr. f^. 

Siersom ai Fetchqm ; and at a late hour in the eyenuigy ^sw^PSh 
after dinner' was over, Mr. Hard^ and such other per* 
•0D9 made spm^ statements ^r represetitatioiis to ber 
of tbe embarrassed state of the a&irs of her uude 
Nidudas DonnWiomff ai)d of ber cousin Isaac Harris, 
and the distress pf the family, an4 of some arrangeipen|t 
Ibradjusting their agiurs; and i^presented and assured 
i^j that att the creditDrs would be ultimatdj paid ; that 
the property was pieffectly safe; and tha( th^ puipoae 
c£ anraagement was to enabli^ Isaac Harris prqyide tb^ 
jfAomsj for satisfying the d^ms of the creditors* tgr 
means tbe best adaf»ted to effect that qid, with least inr 
convenience and^ loss to him and tbe family of ^iakolas 
SannUUme : and tbey then, for the first time, pro- 
doced to her some written paper, wbic^ (bey rq^cer 
senf^ to contain the joint concurrence of l¥tlfia0 
i^iiaods ' and Thanu^ Grffitij and of J^n WUh 
more and Johanna his wife (ber ^ther and motber)» 
in the aqtangement (wfeid^ • was the same referred 
to by WiUiam Symonds in his letter), and their entire 
approbation thereof; but of the expediency and pro- 
pAetj of tike pidisure thereby recommended, she ^ was 
not then «idBciehtly ii^formed to have a proper judg- 
ment: and she, having been then called on for her cob- 
sent and approbation, and having no proper person to 
consult with and advise her what to do, in circumst^c^ 
so tiew and embarrassing, gave credit to \h^ represent- 
ationiEi made to h^r, respecting the ultimate security of. the 
property ; and under the influence of the advice and opi- 
htoA of ber friends William Symonds and Thomas Grif- 
JUk^ who^ as it appeared to her by the sai4 writing, 
i«oomiDended a compliance with the prqiosed arrange* 




•181 8. ment, was induced to express her willingness to 
yiff^lT^ concur in what was so approved ; and thereupon Mr. 
V. Hardy produced a voluminous draft of a deed, and 

read over a part only, which occupied about three 
hours in the reading, and which she did not under- 
stand ; after which, being asked if she approved of it, 
she answered, that she did not understand matters of 
that nature, but took it for granted that what was so 
proposed for her approbation was right ; and, as the 
night was then far advanced, she was desired to con- 
sider of what she had heard until the next morning ; 
and, being again, the next morning, asked for her con- 
sent, expressed her willingness to concur in what she 
understood could be no prejudice to her own interest, 
and would be a great accommodation and relief to the 
fiunily, to which she was so nearly related, and under 
whose roof she then was. That she was then desired to 
sign some paper or instrument, which she accordingly 
did ; and was told, it would be a satisfactory thing for 
William Symonds and Thomas Griffith to be informed by 
herself of her having consented to the arrangement; in 
compliance with which request she accordingly wrote to 
them a letter to some such effect 

The bill further charged, that Hardy^ having thus 
effected the object of his journey to Fetcham^ namely, to 
obtain the consent and signature oi Lomeday Walker y for 
which purpose he was desired by William Symonds to 
apply to her, returned to London j and took with him all 
the deeds, papers, and writings he had brought, without 
leaving with her any copy or abstract thereof, or any 
memorandum of what the same consisted, and of what 
she had been so induced to do. That Loveday Walker 
never signed or executed any other paper, autho* 
rity, or consent as to the trust-monies, and that 




she was ignorant of matters of business, and of the 
nature and effect of the deed of arrangement or com- 
promise, and of the act she was called upon to perform, 
when she signed the authority and gave her consent or 
approbation. That such authority and consent were 
obtained by surprize, circumvention, and contrivance; 
and that the procuring such consent and signature 
was designed by William Symonds and Thomas Grif- 
JUh as a means of protecting themselves, who were 
also creditors on their separate account of Nicholas 
Donnithome^ firom the consequences of the breach of 
trust which they had incurred, or apprehended, 
by their having lent, or permitted Nicholas Donni-, 
thomej their co-trustee, to retain, the trust-monies 
without su£Scient security, and was a fraud on her ; that 
on the 12th of Aprily 1797, Mr. Hardy sent to her the 
engrossment of a deed, accompanied with a letter 
containing (among other things) as follows : — ^^ Mr. 
Hardy is very sorry he is so circumstanced he can- 
not wait on TAxss Whitmore with the deed for her sig- 
nature. The instrument which Miss Whitmore signed 
at Fetcham was an authority from Mr. and Mrs. Whit" 
more to the trustees (Messrs. Symonds and Griffith) to 
execute the deed of trust ; and, had not Mr. and Mrs. 
Whitmore executed in the country, he (M.v. Hardy) 
would not have deemed Miss Whitmor^s signature ne- 
cessary ; but, as they have executed, her executing will 
make it, for form's sake, more regular. The deed is the 
same as the draft which Miss Whitmore has already 
perused at Fetcham^ except the alterations which he 
mentioned. The bearer shall wait till Miss Whitmore 
or her friends have perused the draft and deed; and 
Mr. Hardy regrets that he cannot leave either, as he 
takes them into the county oi Cornwall to-morrow morn- 
ing. Mr. Hardj/s derk will deliver to Miss Whitmore 
a check for SdU on acoount of. the interest money, the 




1818. lifci Slim having b6tn pWd tb het fatter and mother j 
and the arrests 6f tot^feSt will vety soon be paid/' 
That L&oedaj) Walkif- having infomidd her friends of 
whli< im p^^^ M Fd^fUiml ^ #^11 & ^ eouldf recbt- 
Ie6t ^r t^Mn th& i^al&i^V ft1nd th^y hafl«f^ cautiM^d h^ 
agaiftet sighing §tfjy dg^d^ or flS^ mpSXS&O^ h%t ^tly- 
p^tt^, #ithotit beBfrg pfopktlj fifdVteea » td th^f riktifrg 
and effe<:t of sufch pA)ptersi sh'6 M not s?gtf riftd e*- 
ettte the ind^h'ftire ; but by tHf^e letterflT f«Jttested M¥i 
HqM^ to leave a draft or Cdpy of Afe' de^d wWi fc^,^ so tA 
to alfeiNl h'e^ ah oppoirttfnity df reading ftiild Cdnsftfef irf^ 
it^* tfihfd taking th^ &dvic^ 6f h^ fifigfi'ds^ th^eohV kM ^5^ 
a C6py of the paper she sfgnfed Si Fmhhrtli iM a 65py df 
the " Reasons," (as th^y Wer^ calk^) ^hi<9i m^&a?« iJ^- 
mt[)ne& and Thortim Griffith had esM^d td b^ #fHteffi a^ 
prq^ared by Mr. FtiUclwes (^ att6Mey ^ftipIbydQ by flfM 
at Hereford)^ to which they, by fha letter* df ffie «© ^ 
December J 1196; referred her, as cdntaffiffig tfi&if j5h» 
seMftiehts on the aVrangeineiit ; ahd Mt. HtSrdyl after k 
se^ftTate ap^fic^tion to him 6n hit pM Rft H cdpy UtekeR 
of such r6^pe6tIVe pa](y6rs, furhished her #ith' ^em,' 5»fi§ 
by 6ne, a§ ttey wer6 res|)edfi^eiy 6affed fixr/ fi^d ^e^ 
after having retid dtid cohsid'eifed th^^ fifad dohshilt^ 
her friends thereon, discovered, ^d ^k^ HdViS^^ A'^f 
th^ deed Was such ais she Ou^t hot to e±ils6(iti 
or accede to, as b^ihg greedy itijtttiohs fo^ her, ^d 
such a^ no person haVitfg itij fqjard foi* Ktf ihffte* 
ccftM advise^ and she dierefote dedSnM to etH^ 
cttte it. Th6 bm thferefore insSstW fli'at^ hei^ cdfts^ftf/ 
or concurrence aftd authority,- v^ere friAir8ul«itlj^ ^B^ 
tainted; anid not bindiing; dttit least d)hi th^ dtipf 
nM to have the eil^dt of disch^i'gihg die ttti^^' &d 
th^ respective estates, from BabiBty ih t^^ rf thf * 
trust-ntonies; but that the trtfstee^, dnd ^aKfeiil^ 
S^bhdi and GHffilh^ IMMg bkeii gdO^ ffi the ^i ii^' 




for the consequences, and bound to make g6od the trust* 

The bill prayed, that the consent of Loveday Wolke^ 
to the deed, and her signature to the writing eicpressive 
of such consent, might be declared to have been im- 
properly obtained, and to be fraudulent and void; and 
that it might be declared that William Symonds (deceased) 
and Thomas Griffith^ and Nicholas Doniiiihomej ought^ 
upon receipt of the said sum of 8000^. trust-money^ to 
have invested the same on real or government security ; 
and by lending the trust-money to Nicholas Doftni" 
ihamCf one of the trustees thereof, upon his personid 
security, or permitting him to retain the sam^ in lH 
hands, were guihy of a breach of trust, and becdttfe 
personally liable to answer for, and make good, thci 
aame, and all loss that had arisen therefrom, (»r beetf 
occasioned thereby ; and that WUUam Symonds (deceased) 
and the respective estates of Thomas Griffith and Niched 
las Donnithomey might be charged with the amount of 
such trust-money accordingly; and that WiUiim ^ 
numdSf and John Lilli/j and Isaac Harris^ out of the 
estates of their respective testators, or some, or one of 
them, might be decreed to pay the said 8000/. into 
the Bank of Englandj in the name of the accountant^ 
general; and that, when paid in, it might be lidd oM 
on real securities, or invested in capital stoc^k, under 
the directions of the court, as to the interests and 
dividends thereof during the life o( Johanna Whitmore^ 
up<ni the trusts of the indenture of the 17th oijamutryi 
1780, or such of the trusts as remained to be performed^ 
and as to the capital of the trust-monies, and all othe^ 
the interests and dividends thereof^ after the death of 
Johanna Whitmorcj upon the trusts of the settlement of 
the 11 di of June, 1799, so that the trust-monies might 
be properly secured for the beMfit of the Flaintifi 







Adam John Walker and Loveday Walker his wife, and 
the issue of dieir marriage, according to their re- 
spective rights and interests ; and that the interest and 
dividends might, during the life of Johanna Whitmore, 
be paid to Laoeday Walke?', or to Adam John Walker 
in her right, in such shares and proportions as the 
same had theretofore been paid, or as the court should 
direct ; and, if Ltllj/ and Hairis should not respectively 
admit assets of tlieir respective testators, that the usual 
accounts might be taken. 

William Stpnonds and John Lillys by their joint answer, 
filed on the 7th of May^ 1803, stated that in or about 
Juncy 1772, John Whitmore (deceased) intermarried 
with Johanna Whitmoi^e (then Johanna DonnithomCf 
daughter of Isaac Donnithome deceased) ; and that 
upon the treaty for tlie marriage, Isaac Donnithome 
agreed to advance the sum of 6000/. as the portion of 
his daughter, in consideration of an adequate settlement 
to be made upon her, and the issue of the marriage ; 
and that he advanced 6000/. to John Whitmojre^ ac* 
cordingly; and for securing the same with interest, 
John Whitmore gave his bond, but no settlement was 
then, nor until the time thereinafter mentioned, ex- 
ecuted in pursuance of the agreement; and, denying 
that any real security was ever given by John Whitmore 
for the sum of 6000/., or any other security except the 
bond, they stated that in or about the month of Janu^ 
ary, 1780, John Whitmoi-e being greatly reduced in his 
concerns, and unable to make any settlement, according 
to the terms of the agreement, and there being an ar- 
rear of 1900/. interest, Isaac Donnithome determined 
to make a settlement of the principal and interest due 
in respect of the bond, and accordingly the indenture of 
the 17th of January^ 1780, was executed ; in which was 
coQtaixied a declaration or proviso, that the trustees 




should be accountable for their own acts and de&ults 
only, and not for any loss or miscarriage by any se* 
curity of the trust-money, in case the same h^>pened 
without their wilful de&ult or neglect, nor for more 
than what should be actuaUy received by them, or 
their order respectively; the answer admitted that 
Nicholas DonnitAome, Thomas Griffiihj and William 
SynondSf accepted the trusts of the indenture; tliat 
Isaac Dcnnithome died in June^ 1782, liaving by his 
will devised freehold and leasehold estates in Cam- 
wallj of considerable value, comprising lucrative tin 
mines, to Nicholas Donnithome his son, for life, with 
remainder to his son Isaac Hanis, (tlien Isaac Don^ 
fdthome) in fee simple ; that Nicholas Donnithome^ 
upon the death of the testator, entered on the devised 
estates, and continued in possession till his death; 
being a merchant in London of very considerable credit 
and reputation: That in I78S9 the principal and in- 
terest due on the bond were paid by John Whitmore^ 
and the amount, 7900/., was lent by him with the ap* 
probation of the trustees to one Pritchard^ on the 
security of a mortgage of certain real estates, which, in 
1790, were sold to John Ket/sall, who thereupon gave 
notice to the trustees of his intention to pay off the 
principal and interest due on the mortgage, at the 
end of six months ; that in consequence of such notice, 
WiUiam Symonds made application to different solicitors 
of eminence in Hereford^ and caused diligent inquiry 
to be made for some landed security whereon to invest 
the money; but no opportunity occurred of so invest- 
ing it, and neither he, nor Thomas Griffith^ were at that 
Ume able to find any such security; and the sum of 
7900/. with the tlien arrear of interest, was afterwards 
paid in London by Keysall to Nicholas Donnithome, 
pursuant to the notice; that, as the interest of thai 
Vol. III. C sum 





sdm formed the principal part of the income of John 
Whitmore and Johanna his wife, and would have been 
much diminished by investing the money in the public 
funds, (which did not then produce an interest of 
4 per cent.) it was agreed by the trustees, that it 
should be invested in bills or notes of the Easi India 
Company, payable in two years, which then produced 
an interest of 5 per cent., and it was accordingly so 
invested by Nicholas Donnithome^ with the approbation 
of his co-trustees ; and the interest of the bills from time 
to time paid to John Whitmore and Johanna his wife, 
(who then lived separate from each other) in the pro* 
portions in the bill mentioned. 

The answer stated that in the month of 1 795, 

the principal sum of 7900/. due on the bills was paid in 
pursuance of a public notice, and was received in Lon^ 
dan by Nicholas Donnithome^ who having informed Jo^ 
kanna Whitmore that he had received that sum, and that 
intelligence having been communicated by her to William 
Sjymonds and Thomas GriffUhj Symonds, in or about the 
month of May 1795, wrote a letter to Nicholas Dornii^ 
thome, stating it to be the joint and earnest request of 
Qtiffith and himself, that the whole of the 7900/. should^ 
as soon as convenient, be invested in the public funds, 
£n the names of the three trustees ; that Nicholas Don* 
nithome soon afterwards proposed to Johanna Whitmore, 
on behalf of himself and his son Isaac Harris, to join 
in securing the trust-money, by a mortgage of their 
estates in Cornwall^ and requested her to consult 
Symonds and Griffith as to the propriety of acceding to 
such proposal; and Johanna Whitmore being desirous 
th&t the proposal should be accepted, and it appearing 
to Symonds and Griffith, that the estates in Comtmll, 
would be a very ample security, they expressed their 


The answer further stated, that NicftoUis Ikmnithame 
not hanBgi in pursuance of his engagement, tent to hb 
co^trostees a mOTtgage for securing the trust^mooey) 
Wmhm 4ymofit2t made seTfiial a[i|^iCHtioBs to him on 

C 2 the 



ocmsent to Johanna Whitmorej who thereupon wrott W,% 
to Nicholas Donniihomej informing him of sjtcb tamr ^[:!!^ 
setiti and requiring that the mortgage i^uld be>tt* pt 

eetited wkh all possible despatch^ and that, for thb 
aeemitj of the money, Until a mortgage coUld b6 coitb^ 
jdeted^ A joint bond should be givea; that in Mjjf 
1795, Nicholas Donnithome transmitted to S^mohdg 
and Gr^h the joint bond of himself and Isaac Harfh 
for 8000^ (being the principal sum of 79002. together, 
with 100/., part of the interest arising therefiroui^ 
added fay the desire^ or with the consent of John 
WhUmore and Johanna his wife) ; add he at the sUttie 
time assured Symonds and Griffith that he Would vevjr 
shortly send them a joint mortage of the Comitk 
estate^ for securing the principal and interest of the 
trust money* 

The answer admitted that Join Whitmore and JohamtM 
his wife had but one diUd, hofoeday^ who, at the time of 
ezeeoting the s^ement, was an infent of tender jreail^ 
and resided with Johanna Whitmore her mother^ idib 
dieQ lived apart from her husband; that subsequent 
tq s^ch separation the truiitees allowed one-foujrtfa part 
of the interest of the trust money to John Whitmorei 
md the remaining three-fourths to his Wife ; and that 
laoedajf attained twenty-one in December 1795, and 
4ien separated herself from her mother, and soon aftor 
she attained that i^ made an application to the trua- 
tees for an allowance for her support, in consequence 
of whieh they allowed her lOiU. per anmm out of tbe 



1818. the subject, and wrote to him several letters, earnestly 
requesting him, in the name of himself and Griffith^ 
r. either immediately to invest the money in the pub- 

SncomMu jj^ ftmds, or to give them landed security for it; 
That Nicholas Donnithome died on the 20th of Sep^ 
tember, 1796, during the course of such applications, « 
without having executed a mortgage, leaving Isaac 
HarriSf his eldest son and heir at law, who thereupon 
became ' entitled, under the will of his grandfather 
Isaac Donniihomej to the estates in Cornwall at a 
yearly rent of 1500^., and also to considerable copy- 
hold and leasehold estates ; and that Nicholas Donni- 
thome died intestate, and Isaac Harris took out admini- 
stration to his personal estate : That in the beginning 
of NovembeTy 1796, William Symonds wrote to Isaac 
HarriSy and requested him to invest the sum of 
8000/. in the public funds, without further delay ; but 
about the 19th of that month Symonds received a letter 
firom Messrs. Wadeson and Hardy (the solicitors of 
Harris) informing him that the a£&irs of Nicholas Don* 
nitharne appeared, on investigation, to be in a very em- 
barrassed state, and that a meeting of his creditors was 
intended to be held in Londonj in order to determine 
what steps ought to be taken for obtaining payment of 
their debts, which meeting Messrs. Wadeson and Hardy 
requested Symonds and Griffith^ (as bond creditors of 
Nicholas Donnithome) to attend: That by reason of 
the distance firom their place of residence to London^ it 
was impossible for them to attend ; but William Sy^ 
monds shordy afterwards received a letter fi*om Mr. 
Hardyy informing him that the meeting had taken 
place, and it appearing that the bond and simple con- 
tract debts of Nicholas Donnithome amounted to S0,000/. 
and that the immediate sale of his real and personal 
estate would, from the nature of the property, be at- 
tended with oonsideroJt^le loss, whereas by continuing 




the same in the hands of trustees, an ample fund would 
be provided for the discharge of his debts by instal- 
ments, a proposal for creadng a trust for the benefit of 
the creditors had been submitted to them on the part of 
Isaac Harris^ to which the greater part of them were 
disposed to accede, and that a trust deed was accord- 
ingly prepared to carry the proposal into effect; to 
which Mr. Hardy^ on the part of Isaac Harris and 
the creditors, requested the concurrence of Sifmonds 
and QriffUh ; that the proposal of Isaac Harris (to which 
the letter referred) was at the same time transmitted to 
Synumds and Griffith for their consideration, and was to 
the effect following : — » 


^ That .all the freehold, copyhold, and leasehold 
estates and other chattel interests of Nicholas Doimi' 
thome deceased, and Isaac Donniihomej situate in or 
near Lad^lanef Londorij in Cornwall^ and at Crcydon / 
and all outstanding debts owing to Nicholas Dotinim 
ihome^ and also, all mining and fiurming stocks and 
utensils belonging to him, should be respectirely con- 
veyed and assigned to Richard Walpole, William CurHsj 
and Thomas Woody of Londorij upon the following trusts ; 
that the premises in or near Lad^anej and the freehold 
estates of Genoam, in ConvwaUy and the leasehold pre- 
mises^ in that county, demised by letters patent of 
the 3d of Auguslj 1762, should be sold at such time as 
the trustees should think fit, if they should think a 
sale necessary, and the monies arising yearly to be ap- 
plied, first in payment of the principal money and in- 
terest due upon a certain mortgage of the Cornish 
estates, and other charges thereon, specified in the pro- 
posal; and the ultimate surplus (if any) to be applied 
in manner thereinafter directed, in respect to the general 
fund ; but if the same should not be sufficient for the 
discharge of the mortgage debt, then the deficiency to 

C 3 be 



Iil6. be discharged out of such general fundi AnA uAttt a 
0aie» the t^its and profits of the mortgaged estates 
v^ thbiAd be implied first in payment of the interest of the 

incMgageS) and the surplus of the rents and profits 
te reducticm of the principal monies j and (hat the 
IcMiiiehold premises at Crrydon should be Immediatdy 


aoldy iHth ^uch part of the ftrming and mining stdck 
mid ttteiisils m OonvwaU^ as the trustees should think fit, 
ted tbe outstan<Kng debts immediately got in, and the 
laohies applied as part of the general fund, in maimer 
tiierrinafter directed; and that the mines should be 
'malted, and the stamping mills and othei* businesses 
in Cornwall^ carried on by the trusteies, exc^t such 
part as they might judge it expedient to dispose of, 
ted ^Bt the produce thereof, and Ae toll-tin, ' and the 
Milts, and |)rafits of the other parts of the ODraii^ 
^StidlbeB^ should be iweived by the trustees, i^fho should 
dl^iNdijslit pay the expenses of the trust ; and should also 
iMt poi^er to raise by mortgage^ such furtheir sums 
te might be niicessary for that purpose, or for insurit^g 
1^ life or !iyes upbn which ahy of thu leases might de- 
pe^f iMd for renewing any of the leases ; and Aat siib- 
|ebt to the Expenses aforesaid, the residue of the monies 
ilrising as aforesaid, should be applied, first in payment 
of the interest of a sum due on mortgage therein m^i- 
tioned, and dien of the interest of the specialty debts, 
and then in payment to the house of Richard Walpde 
and company, of certain sums, which they were under 
engagement to pay ; and after the several payments afore^ 
Sttd, to pay the yearly sum of SOOL to Isaac Donnithome^ 
during the continuance of the trusts, if he should so long 
ttre unmatried ; but vti case of his marrying during the 
pending of the trust, then the same annuity was to be 
continued to his executors, &c. until the trust should 
be determined; and also to pay SOOl. a year to Anma 
BafinHhome^ Uie widow of Ni(^olas JDormfthome^ duiteg 



the oondiuiance of the trust, if she should so long lime, I81S. 
and in case of her death, then the SOO/. a year to be 
ocmtinaed to her three daughters, Sophia^ Catherinej and 
Jjooeday Donnithomey in equal shares, during the ooifr- 
tinuance of the trusts, subject to a proportionate are- 
duction in case of the death of any of the daughters; 
and afterwards in payment of the interest of a sum of 
1400^, due to James Donnithome^ and then in payment 
of the other specialty debts, and that subject to Ik 
several payments aforesaid, the accruing intere^ of ibt 
spedalty debts should be discharged, and that the dear 
surplus of such monies should be applied in discharge of 
jthe said sum of 1400/., by certain yearly payments to 
Jame^ Donniihome^ his executors, &c., and in the next 
place, in discharge of the specialty ddi^ts, and also of 
the simple ccmtract debts, by an equal pound-rate; and 
after full paymetit and discharge of the debts, that du 
trust estate should be conveyed to Isaac Donnithome^ 
and so much of the personal estate as should not have 
be^ diq)osed of for the purposes aforesaid, should be 
assigned to the widow and children of Nicholas Don$d* 
ihome^ according to their respective interests thereio, 
under the statute of distribution ; and that in case all 
the debts should not be paid within the space of twelve 
years, the trustees should have power to raise by sale or 
mortgage, so much money as should be necessary finr 
the full discharge of the debts remaining unpaid; That 
in consideration of the iimd to be provided for payment 
of the debts, and the additional securi^ for the dia» 
charge thereof, contributed by Isaac Donnithamey the 
creditors executing the deeds of trust, should release all 
claims and demands on Nicholas Donnithome and Isaac 
Darmithome, and their respective estates." 

The answer further stated, that William Synumds and 

C * Thomas 




Thomas Griffith having some objections to the proposal, 
which they afterwards stated to Lovedat/y and not chus- 
ing to execute the trust-deed, without the direction and 
authority of the persons interested in the debt, submitted 
•the proposal and terms of trust, together with their ob- 
jections, to WhUmore and his wife, then resident at 
Hereford^ and they liaving considered of the same, an 
instrument, or power of attorney, was prepared and 
signed by Whitmore and his wife, whereby, after reciting 
the indenture of settlement, and that the trust*money, 
after it had been paid by Keysally was invested in East 
India bills, payable in two years after date, and that 
the bills were received on account of himself, and his 
trustees, by Nicholas Donnithome, who, in breach of 
his trust, converted the principal sum to his own use, 
and that Thofnas Griffith and WiUiam^ Symonds had ob- 
tained a joint and several bond from Nicholas Donnp- 
thomc and Isaac Donnithome^ for securing the debt; 
and afl«r reciting the intended deed of trust for the pay- 
ment of the creditors of Nicholas Dormithome^ and that 
John Whitmore t^ad Johanna his wife^ and Laoedat/y their 
daughter, were the only persons beneficially interested 
in the tnist^money, and that the mode provided by the 
deed of trust, appeared to them that which was most 
eligible, and would best conduce to the discharge of tlie 
debts of Nicholas Donnithome and Isaac Donnithome; 
It was witnessed that, for the reason , and consider- 
ations aforesaid, John Whitmore and Johanna his wife, 
and Lofoedajfy did authorize and direct Thomas Griffith 
and William Symonds to execute, the indenture of 
.release and assignment, as creditors in respect of the 
bond, and to receive the dividends, or share of tlie pro- 
duce of the trust estates, according to the stipulations of 
the indenture, in satisfaction of the principal and in- 
terest due upon the bond) and they thereby confirmed 




all that Griffith and Symonds should lawfully do, or 
cause to be done, in pursuance of the said authori^ and 
direction, (a) 

The answer then stated, that at the time of these trans- 


(a) The power of attorney 
recited the indenture of the 
17th of Juncy 1780; and 
that the sum of 7900/f. was, 
some time afler the exe- 
cution of the indenture, paid 
by John Whitmore to the 
trustees, and by them in- 
vested upon a mortgage of 
certain estates, and was paid 
off and discharged by John 
KeysaU, purchaser of the said 
estates, to the trustees, who 
thereupon, or soon afterwards, 
Invested the same upon cer- 
tain promissory notes drawn 
by or on the behalf of the 
United Company of Mer- 
chants trading to the Ecut 
Indiesy payable two years 
after the date thereof or 
thereabouts, which were re- 
ceived by Nicholas Donni- 
^homey on account of himself 
and his co-trustees, but who 
in breach of his said trust 
converted the said principal 
sum of money to his own use ; 
and Thomas Griffith and 
William Symonds have since 
obtained a joint and several 
bond from Nicholas Donni- 
thomcy and Isaac Donni' 
thomff his son, for securing 

the same: and that there 
was then due from the estate 
of Nicholas Donnithome to 
Griffith and Symonds^ as such 
trustees as aforesaid, the said 
principal sum of 7900/. to- 
gether with an arrear of 
interest for the same; and 
Nicholas Donnithome was 
at the time of his decease 
indebted to several other 
persons by specialty and 
simple contract to a very 
large amount, to the payment 
of a part of which debts his 
son Isaac Donnithome was 
also liable, in consequence of 
his having joined in the secu- 
rities for the same : and that 
by certain indentures of lease 
and release, and assignment, 
bearing date respectively on 
or about the and 

days of January last past, 
made, &c. (describing the 
deed of trust afterwards ex- 
ecuted) all the real and 
personal estate of Nicholas 
Donnithome^ and also Isaac 
Donnithome^ therein describ- 
ed, were conveyed to Walpole^ 
Curtis, and Wood, their ex- 
ecutors, &c. upon trust by 
the several ways and means 



actions, Jj&oeday was on a visit at FetcJiam^ near Londxm^ 
and being fully informed of the state of the trust-property, 


therein mentioned, to raise 
money for> and to apply the 
same in payment and discharge 
of the severa) specialty and 
simple contract debts of Ni- 
fhoias Donnithome and Isaac 
Donnithome^ jointly or se- 
parately, in the order and 
course therein mentioned : 
and that Loveday Whitmore 
haid attained her age of twenty- 
onjp yearsy and thereby be- 
came intitled to a vested 
interest in the said sum of 
7900^. subject to the life 
interest of her father and 
mother therein ; wherefore 
John Whitmore and Joannahis 
wife, and Lovedai/ Whitmore 
their daughter, were then 
the only persons beneficially 
interested in the trust money ; 
and inasmuch as the mode 
provided by the last recited 
indenture appeared to them 
that which was most eligible 
and would best conduce to the 
discharge of the several debts 
of Nicholas Donnithome and 
Isaac Donnithome^ John 
Whitmore and Johanna his 
wife, and Loveday Whitmore^ 
had therefore agreed to em- 
power Griffith and Symonds, 
as such trustees as aforesaid. 

to concur with the other cre- 
ditors of Nicholas Donni' 
thorne in acceding to the 
deed of trust, and accept- 
ing the terms therein propos-, 
ed : and it was witnessed, that 
for the reasons and consider- 
ations aforesaid, and fpr di- 
vers other reasons and con- 
siderations them thcreuntp 
moving ; John Whitmore and 
Joanna his wife, and Lonie* 
day Whitmore^ authorized, 
empowered and directed 
Griffith and Symonds^ pv 
the survivor of them, or tbf 
executors, &c. to sign, seal, 
and execute the indenture 
of release and assignment of 
the day of January la^f; 

past, as creditors for the said 
sum of 7900/. and all interest 
due for the same up to 
the date of the indenture, 
and thenceforth to accrue 
or become due in respect 
thereof, and from time to 
time to receive the propor- 
tionate dividend or share of 
the produce of the trust es- 
tates, when the same should, 
according to the stipulation 
and direction contained in the 
indenture, become due and 
payable, towards satisfaction 




Wrotis a letter to S^/mondSf dated the 19th of D^ 
€mfber^ 1796 {a\ to which a joint answer was sent by 
fhfmondi and Qriffiihy dated the 24th of the same 
liimlh(A); and that Symonds and Griffkhj having 
drawn up certain observations to be submitted to 
Lmxd(^i toge^er with the necessary papers relatbg 
U^ the tTMsacdons, transmitted the same, with the 
pcMHrer of attorney, executed by JVhitmore and his wife, 
to Mk Hardi/y (the solicitor o( Isaac Harris^) with a 
feqoest that he would deliver them to Levedai/, at the 
9Bt6e time with the papers relating to the intended trust ; 
tke ebserratiiHis being to the eilbct following: "Mn 
attd Mi^ Whihnere being the persons interested in the 
s^ven Adusand pine hundred pounds, it is obvious, that 
lAalever pfoppsal they concur in accepting, their trus- 
teed, Messrs. Griffith and Symonds^ may safely adopt, 
but ^vHhout their consent, (and particularly without 
Mist Whitmor^s^ to whom the money appears to belong, 
sulgeet to her &ther and mother's life interest,) the 
trustees will incur a great risk, in acceding to any pro- 
posal, however equitable and advisable it may be in their 
tmn opinions. It has been intimated to the trustees, by 
a gentleman, who professes to act as the friend of Miss 
Wkitvun-e^ that they ought to use every possible means 
ta get in the money, without regard to family considera- 
tbns, and to place it in the funds, by which means it 
would produce more than five pounds per cent. : the trus- 


o^ ^e principal money and Gr\ffUh and Symonds, s^d 

interest; and Whitmore and the survivor of them, &c« 

his wife, and Loveday Whit- should lawfully do or cause 

imorcy ratified and confirmed, to be done in the premises 

and promised and agreed to by virtue or in pursuance of 

mtify and confirm whatsoever the power. 

(4) Ff*r anic^ p,. 9. 

(^) r^if imtfp P* \o* 






tees for their own pait think such measures by no 
means advisable, in the present state of things, as being 
likely to produce great loss and inconvenience, and they 
would prefer J;he proposed trust, with some alterations^ 
as more likely to secure the interest of the Whitmore &r- 
mily ; but it seems doubt&l, whether they have any right 
to think upon this subject. If they adopt such measures 
as that family (and Miss Whitmore in particular) may 
call for, however ruinous to the interests of all parties^ 
they will stand acquitted as trustees, nor can they be 
blamed for the consequences, their advice to the con- 
trary not being followed ; but if they accept an arrange^ 
ment, contrary to the wishes of the family, they may 
then be considered as the persons who gave credit, and 
become liable personally to pay the money and take the 
security upon themselves ; no difficulty wiU arise with 
Mr. and Mrs. Whitmorej and Miss Whitmore will do 
well to consider that when the 7900/. was paid up by 
Mr. KeysaUj (purchaser of the estates upon which it 
then stood as a mortgage,) the funds were at a very 
high price, and would not have paid near four per cent. ; 
it was also then very difficult to get a good mortgage, 
and if such security could have been obtained, it would 
have been very unhandsome to call up the money, in a 
time of such difficulty to procure it ; not to mention, that 
a mortgagor may have found it impossible to pay it in; 
many persons whose property is invested upon mortgages 
feel the difficulty of getting it in to place it in the funds, 
and are obliged to submit to let it remain upon the pre- 
sent securities. Having premised these reasons for obtain- 
ing Miss Whitmxyr^s consent, ^v. Hardy will see the 
necessity of applying to her, and supposing it to be ob- 
tained, the trustees desire the following observations to 
be made upon the trust-deed, submitted to their con- 
sideration ; they continue to think the allowance of 800/. 
a-year too considerable in this case^ added to the other 




funds for the support of tlie Donnithome family, and 
that 500/. a-year, divided as they think proper, would 
be enough to enable them, by living together, and acting 
with proper economy, to enjoy every comfort of life : 
perhaps it may be thought right to allow 300/. of thb to 
Mr. Isaac Donnithornej and the rest for Mrs. Donni' 
ihamej and in addition to the portion of the young 
ladies ; they think the continuance of 500/. a-year to the 
executors, administrators, and assigns of Mr. Isaac Dori' 
nithomcy still more inadmissible : his death, it is to be 
hoped, is an event not to be reckoned upon, in favour of 
the trust ; but should it happen, where can be the good 
sense of empowering him to leave 500/. a-year to whom 
he pleases, which was intended only for his personal sup- 
port ? They think the discretionary increase of Mr. /. 
Dormiihom^s allowance, improper and unnecessary, and 
that more particularly, if he is to have an allowance of 
500/. a-year ; it may be right to observe, that every in- 
crease of these allowances will not only retard the execu- 
tion of a very complicated trust, but in the end be de- 
trimental to himself, as every shilling his trustees pay 
off, will operate with the power of compound interest in 
his &vour; they consider the specialty creditors in a 
worse situation than the simple contract creditors, the 
trustees having a discretionary power to pay off such of 
the latter as they think proper, and then they must pay 
all the creditors pro rata ; the arrangement, it was ex- 
pected, would have been to pay interest to the specialty 
creditors first, and then to the simple conti^act creditors; 
it seems to be inconvenient to compel the trustees to pay 
the debts pro rata ; if the trust goes on well, some per- 
sons may have no objection to wait for their money, 
while others may be much distressed for want of it; 
perhaps there should be. a power to the trustees to give 
a preference to the specialty creditors, with consent at 
least of a meeting of those creditors : the power of two 




of the trustees to act without the third, seems improper^ 
imless it be restricted to the case of one of them being 
absent more than a certain time from London : in case 
of a difference of opinion between them, the one who 
dbsents may be right, and a meeting of specialty cre- 
ditors should be called to turn the scale. If Miss ^As^ 
more should, however, approve of the deed in its pre- 
sent form, and should disapprove of the observations of 
her trustees, they will again consult Mr. and Mrs. 
Whitmore^ and the family being unanimous, the trus- 
tees will be satisfied with having given their opinion^ 
leaving it to the parties interested to determine for them- 

The answer further stated, that Mr* Hardy^ aecoQk** 
panied by William Curtis, (now Sir William Curtis^ 
Bart) one of the trustees named in the indenture df 
assignment, about the llth oi Fehruary^ 1797, caUed 
upon Laoeday at Fetcham, and fully explained to her the 
embarrassment of Isauc Harrises affairs, and the ar* 
rangement which had been formed for vesting his pro- 
perty in trustees, to be applied in payment of his debtS) 
together with the nature and particulars of the trust 
created for that purpose ; and that they, at the same 
time, produced to her the writing containing the ob- 
servations, together with a draft of the trust-deed, which 
they fully explained, and offered to give her any further 
information which she might desire ; and they also pro- 
duced to her the power of attorney signed by her father 
and mother ; and she, having fully considered the several 
papers, and appearing perfectly to understand the nar 
ture of the trust, expressed herself to be entirely satis- 
fied therewith, and on the following day executed the 
power of attorney in the presence of Curtis and Hardy^ 
to whom she delivered the same ; and, in the course 
of two or three days after, wrote to William 1^ 



monds the following letter, dated the 14th of Februarys 

^* In consequence of your last letter, I have IcHig been 
expectuig to hear from Mr. Hardy \ on Saturday hit and 
Mr. Curtis came to Fetcham^ and brought with them the 
paper already signed by my father and mother : it has my 
entire approbation, and I have added my name to it* 
With regard to your observation on the proposed allow- 
ance of my cousin and aunt, I cannot quite agree with 
yon : my cousin's case is certainly a very bad one, and I 
think, considering the great sacrifice he makes, of what 
he might have reserved entirely to himself 500/. is not 
much more than what he might reasonably expect:—- 
it is most probable the &mily may be separated in a very 
few years, and my aunt, I think, ought not to have less 
than SQQl. which is mentioned by Mr. Hardy. I think 
the regular increase of Isaacs income by no means ne- 
cessary, unless he were to marry, and then it wiQ be 
with the consent of his friends, as the debts decrease,, to 
make an addition to his income, if he should wish it. 
Were he deprived of the power of disposing of the 500/. 
in case of his death, it would be an insuperable bar to 
his marrying. To a wife or children I thi nk it should 
be continued, but if he should die unmarri ed, with him 
it should cease : I have said as much to Mr. Hardy; and 
I trust, upon further consideration, you will have the 
same opinion. I shall always be happy in assenting to 
what you and Mr. Griffith propose^ to whom I beg my 
compliments and respects. 

" P. S. I have taken the liberty of inclosing a few lines, 
which I shall be obliged to you to convey to him." 

The answer further stated, that, in pursuance of the 
authority contained in the power of attorney, and after 





having received the last-mendoned letter^ Symonds and 
Griffith^ as creditors by virtue of the bond, duly exe- 
cuted the trust-deed. 

Tliat deed, dated the 21st o( March ^ one thousand 
seven hundred and ninety-seven, between Isaac Donni- 
ihomcy described as the eldest son and heir at law of A//- 
cliolas Donnithomej and also a devisee and legatee named 
in the will of the Reverend Isaac Donnithmtie^ and ad- 
ministrator of the eflfects oi Nicholas Donnithonie, of the 
first part ; the Honourable RicJmrd JValpole^ William 
Curtis^ and Thomas Wood, three of the principal creditors 
of Nicholas Donnithoj-nej Richard Waljpole, and Wil^ 
Uam Cmiisy being also creditors of Isaac Donnithorncy 
as well as trustees nominated on the pait of their other 
creditors for the purposes thereinafter mentioned, of the 
second part ; and the several other persons who, by them- 
selves or their respective partners, agents, or attomies 
lawfully authorised, had sealed and delivered the deed, 
or a duplicate thereof, also creditors either of Nicholas 
Donnithome and Isaac Donnithome joindy, or one of 
them separately, of the third part ; after reciting various 
leases, and letters patent from the crown, by way of de- 
mise of divers stamping mills, tolls of tin, and other 
hereditaments in Cornwall^ London, and elsewhere ; and 
a devise of certain estates by Isaac Donnithome, the 
grandfather, to Nicholas Donnithome for life, subject to 
certain legacies, with remainder to Iscuic Donnithome 
in fee, and the descent of certain other estates on Isaac 
Donnithome, as heir to his father Nic/iotds Donni-- 
thome; and that Nicholas Donnithome had been engaged 
in certain tin mines, and had become indebted to various 
persons; and that the immediate sale and disposition 
of the real and personal estate of Nicholas Donnithome 
would, as to the greater part, from its nature, be at- 



tended with a considerable loss, whereas by working, 1818. 
and continuing it, an ample fund would be pro- * ' "^ 
vided for the discharge of those debts by instalments, «. 

without occasioning such injury to the property as 
would result from an immediate sale, and therefore 
Isaac Donnithome lately submitted a proposal to the 
creditors of himself and his late father, to the effect 
expressed in the proposals, and in the declaration of 
the trusts of the deed ; witnessed, that Isaac Donni'^ 
ihome conveyed freehold and leasehold estates speci- 
fied, and certain tin-mines, farming stock, and chat- 
tels, and all his otlier chattels, as administrator of his 
father, to Walpole, Curtis, ^d Wood, and their heirs, 
&c. upon trust, to sell .part of the premises, except 
certain ttn*mines, which they were to carry on, and pay, 
first, certain mortgages, and the legatees of Isaac Don^ 
nithome the grandfather, and such debts as from their 
nature required immediate payment ; then 500/. per 
annum to Isaac Donnithome during his life, and other 
annual sums to different members of the family ; next, 
keep down the interest of the specialty debts ; and after- 
wards satisfy all specialty and simple contract debts ; 
and convey the surplus to Isaac Donnithome, or his re- 

The deed contained a clause, that in pursuance of 
the agreement of the parties of the second and third 
parts, and in consideration of the provision thereby 
made for the discharge of the several debts, and of the 
covenants tod agreements on the pait of Isaac Donni" 
theme, the trustees, and all other the creditors oi Nicholas 
Donnithome and Iscuic Donnithorne, for themselves seve- 
rally and respectively, and for their several and respec- 
tive executors, accepted of the deed of conveyance and. 
assignment in fiill satisfitction of all the debts, and sums 

Vol. III. D of 





of money set opposite to their respective signatures, and 
all other claims and demands whatsoever, on Nicholas 
Donnittiorne and Isaac Donnithome^ jointly or separ- 
ately, in respect of their joint trade, and all actions, &c. ; 
and they severally and respectively released, and dis- 
charged Isaac Donnithmme, his heirs, &c. from all the 
debts, set opposite to their respective signatures, and 
from all other debts, sums of money, claims and de- 
mands whatsoever, then due to them, or any of them, 
&c. and from all actions and suits, which the creditors 
might have, &c. against Nicholas Donnithome's estate, 
or Isaac Donnithome^ or either of them, &c. ; provided 
that the release, or any other clause therein contained, 
ahould not extend, or be deemed to extend, to release, 
discharge, or in any degree affect, any debt then due 
to any of the creditors separately from Nicholas Don- 
nithome or his estate, or Isacu: Donnithottie^ in con- 
junction with any other person or persons; but that 
every such debt should, as against such other persons, 
be and remain subsisting, and unreleased. 

The answer then stated, that by that deed, executed 
by the direction and under the authority of Ixroeday 
Walker y Sj/monds and Griffith relinquished all claim in 
respect of the bond, as a separate debt of Isaac Harris^ 
who was then perfectly solvent, and capable in time of 
paying the debt, and whose responsibility had since been 
greatly increased by a considerable real and personal 
property, acquired by him, in right of his wife, in con- 
sequence of which he assumed the name of Harris; that 
they believed the executing the deed was, under all 
the circumstances, the most adviseable measure for the 
creditors of Nicholas Donnithome and Isaac Harris, 
and the best calculated for obtaining payment of their 
debts; and that the iimd provided by that arrange- 



ment for the satisfaction of the debts was a solvent fiind^ 
and would ultimately be sufficient for that purpose ; but 
they insisted that Symondsj and the estate of Griffith^ 
ought not to be made responsible, in case of a deficlenef 
of the fund; although they would be perfectly ready to 
submit to such responsibility, in case they could be pot 
in possession of the persona] security of Isaac HarriSf 
relinquished by them under the authority of Loceday 
Walker. The Defendants submitted that the sum of 
7900/. after it was received from the trustees, was 
duly invested on real security, by being lent on mort- 
gage as aforesaid, and that the receipt for the sum paid 
by Keysatt was signed by Nicholas Donnithome^ Thomas 
Griffith^ and WiUiam Symands (deceased), but the money 
wa^ received by Nicholas Donnithome only ; and they 
daiied that they and Thomas Qriffith (deceased) ever 
consented, or agreed to lend the sum to Nicholas Don^ 
nUhome^ (except on real security,) or that they (except 
as aforesaid,) permitted him to retain it by way of loan^ 
upon personal security ; and they stated, that Nicholas 
Donnithome received it from Mr. Keysallf and also the 
produce of the East India bills, voluntarily and without 
direction or authority, from WiUiam Symonds (deceased,) 
or Thomas Qriffith^ who were, during the whole of 
the transactions, resident at Hereford; and after the 
trust-money was received by the payment of the East 
India bilk, Thomas Griffith and WiUiam Symonds 
(deceased) used their utmost endeavours and made 
the most urgent application to Nicholas Bonnithomef 
durilig his life-time, and after his death to Isaac Harris^ 
at first to procure the trust-money to be invested in 
government security, and afterwards to obtain a mort- 
gage upon the Cornish estate ; and they persevered in 
sudi endeavours until they were authorised by Loveday 
WaJker and her &ther and mother, to execute the trast- 

D 2 deed; 





deed; that if she was, at the time when she attained 
the age of 21 years, ignorant of the settlement made 
by her grandfather, or of the trust-money secured 
thereby, and her interest therein, and the various par- 
ticulars relating thereto, which they did not admit, 
she did not long continue in ignorance thereof; and 
they denied that JVm. &/monds (deceased) or Thomas 
Griffith^ did in any manner conceal or withhold the set- 
tlement from her knowledge, or keep her in ignorance 
thereof; or that she was under any diiRculty in obtain- 
ing information respecting it ; but they said that, on the 
contrary, they were at all times desirous of giving her 
every information in their power, and of answering, in 
the most unequivocal and satisfactory manner, every 
inquiry made by her relative to the same ; and WiUiam 
Symonds (deceased) did in part answer all such inquiries, 
and explain to her the nature and valuation of the trust- 
property, when called upon by her, or on her behalf 
for that purpose ; and neither he, nor Thomas GriffUhj 
ever gave her any reason to believe, that her interest in 
the trust-money was derived under the will. 

WiUiam SymondSj since deceased, admitted that Love^ 
day Walker i some time in January^ 1796, sent to him 
the letter, in the bill mentioned; but he not having the 
possession of the will of her grand&ther, or any know- 
ledge of the particulars thereof, and having no concern 
in the trusts thereby created, did not return any answer 
to such letter, and at the time of receiving it, he had 
no reason to believe, and did not believe that it had any 
reference to the property of which he was a trustee ; 
lie admitted that, after receiving the letter, he was ap- 
plied to by Adam John WaUcer, who desired, on behalf 
of Loveday^ to examine the settlement or trust-deed ; 
and that the Defendant informed Walker^ that he had 




not then the deed, or any copy in his possession, bat 
that it was in the possession of Thomas Griffith^ to whom 
he referred Walkers that, shortly afterwards, Walker re- 
peated his application to the Defendant, who, having ia 
the mean time procured the settlement from Griffiih^ 
produced it to Walker ^ who carefully examined it, and 
either took extracts, or the Defendant took extracts 
therefrom, as he desired, and delivered them to him^ 
and he was at liberty to take a copy of the deed^ 
or the Defendant would wiUingly have fiimished him 
with a copy in case he had desired it ; but he f^peared 
to be perfectly siatisfied with the extracts, and with tho 
information which he then received. 


The Defendant did not recollect, whether he then in- 
formed Walker of the situation of the trust-property, or 
in whose hands it then was, and under what circum^ 
stances, and upon what security, or whether or not any 
inquiry was then made on that subject ; but he never 
declined, or reftised, to give such information, and would 
have willingly fiimished it in case any inquiry had beea 
made on the subject ; and he denied that any application 
was ever made to him, by, or on the behalf, of Ijonxday 
Walker^ for a sight or perusal of the settlement, or for any 
information respecting it, except as aforesaid ; and he de- 
nied that he ever informed her, or any person on her behalf 
that the deed or settlement was in the custody or power 
ot Nicholas Dbnnithome ; and he believed that he, in con- 
sequence of the first application made to him on her be- 
half, fiimished Adam John Walker with a copy of the 
settlement ; and that Loveday must have been perfectly 
acquainted with the situation of the trust-property, long 
before she wrote the letter of the 19th of December j 
1796; that, in case Looeday had persisted in her in- 
tention of calling in the sum of 8000/., and had re- 

D 3 quested 


ijpested the Defendant and Thomas Griffith so to 
4.o> they would by no ineans have executed the trust* 
deed, but would immediately have instituted some legal 
proceedings against Isaac Harris^ to enforce the pay- 
laopt of the bond. 

Tn^ Defendant, W> Symondsy since deceased, further 
said, that in case Curtis and Hardy made any representa- 
tions or assurances, of the nature alluded to in the bill, 
which he did hot admit, they must have been under- 
atopd as making them, in their individual characters, 
and not as authorised by Thomas Griffithf and the De- 
fendant, or as speaking their sentiments; and th^^ 
Curtis and Hardy were not authorised to act, and did 
not appear in the transactions as agents of t^^ De- 
fendant aad Thomas Grfffith, except in delivering to 
Lov^day the writing, containing their joint observations 
qn the inteqded trust. 

Tjbe Defendants denied, that Ixweday Walker was, 
at the time wlien she signed the instrument, incpmpe- 
^nt to form a correct judgment of the nature and effect 
of the arrangement, or of the propriety of the act, or, 
that her consent or approbation and signature were ob- 
tained bv surprise, circumvention, and contrivance, or 
under ftJse, or improper representations, inasmuch as 
she was, at the time, well acquainted with the situation 
of the property, and appeared, by her letter of the 14th 
of February^ 1797, to have been well acquainted with 
the nature of the intended arrangement, and to have 
fully considered, and deliberately approved it. The De- 
fendants denied, that the Defendant, WiUiam Symonds, 
deceased, and Thomas Griffiths had any design in the 
transaction of obtaining her signature to the instru- 
ment as a means of protecting themselves from the 



consequence of any breach of trust, or that they consi- 
dered themselves as having been guilty of any breach of 
trust, or in danger of being made responsible, in conse^ 
quence of the trust-money having remained in the hands 
of Nicholas Donnithome. They stated, that JLoveday 
WaUcer did not communicate to Thomas Griffith^ and 
WiUiam Symonds, deceased, her change of opinion as to 
the propriety of acceding to the proposed arrangement, 
nor had they any knowledge or suspicion thereof at the 
time when they executed the trust-deed, or until a con- 
siderable time afterwards. 




By their answer to the amended bill, William Symonds^ 
since deceased, and John Lilly stated, that they believed 
that the interest of all parties concerned in tlie trust- 
fund was best consulted, under the circumstances of the 
times, by investing the money in East India bills, until 
an eligible landed security could be procured for it ; 
that, at the time when the trust-money was so invested 
by Nicholas Donnithome, no landed security could be 
procured, and, by reason of the very high price of the 
public funds, there was a considerable danger, in case 
of a fall in the price (which in &ct took place within a 
very few years aflerwards,) that the capital of the trust- 
money might be greatly diminished. 

The Defendant, Isaac Harris^ by his answer insisted 
on the benefit of the trust-deed, and that, under the 
circumstances, Loveday Walker was not to be considered 
as a creditor on the personal estate of Nicholas Donni^ 
thome, nor entitled to any account of it, and that Har-' 
ris was not in any manner liable out of or in respect of 
the personal estate of Nicholas Donnithome to make 
good the trust-monies. 

D ♦ 








The cause having been heard before the Master of the 
Rolls, on the 4th, 5th, and 6th of 3fay, 1807j the fol' 
lowing judgment was given : 

The Master of the Rolls, {a) 

The bill prays that the signature of the Plaintiff Lave- 
day to the power of attorney, may be declared to have 
been fraudulendy obtained and void : this is introduc- 
tory to the rest of the relief prayed ; the former must 
be made out to entitle the Plaintifis to the latter. The 
foundation of the Plaintiff's case is, that her consent was 
improperly obtained. The objection is, that it would 
be impossible to replace the parties in the situation in 
which they were when the deed was executed ; it would 
not, however, therefore follow, if the signature to the 
power of attorney had been fraudulendy c^tained, that 
it should not be declared void. It is true, that the 
parties would have had a very different judgment to 
exercise respecting Mr. Nicholas Donnithome from that 
which they would have now to exercise; they might 
have assented to some deed ; they probably would not 
have assented to such a deed as has been executed ; and 
though this does not preclude the Plaintiffs from all re- 
lief, it throws the onus very strongly on them, to shew 
that the trustees were entirely blameable, and that there 
was an improper practice in obtaining die deed. 

The questions are first, whether the trustees prac- 
tised any imposition on her ? second, whether they with- 
held from her any facts which it was essential she 
should have known ? 

It is hardly alleged that any imposition was actually 

(a) From a note read on the argument of the exceptions to the 
Master's report, 



practised on her. The trustees were at a distance, the 
observations transmitted by them held out mere induce- 
ments, but not so as improperly to influence her judg- 





2dly, Information is said to have been withheld from 
her. Did they withhold any information she desired to 
have, or refuse to communicate what she required ? 

It is said that, in January ^ 1796, she desired to be in- 
formed of the contents of her grandfather's will, and 
that she did not receive that information. The trustee 
says he did not understand that she meant what respect- 
ed the trust. If she had been ignorant of the contents 
of the deed of trust under which she was entitled when 
she executed the power of attorney, it might have been 
material ; but the power of attorney recites the deed of 
trust. There b no other instance of her requiring in- 
formation that she did not receive. 

It comes therefore merely to a question, whether the 
trustees ought spontaneously to have put her in posses- 
sion of information which she had not respecting the 
trust? — What are the transactions? The money had 
been properly laid out; it had been paid in without any 
act of the trustees ; the trustees did no act to call in the 
money or change its situation ; they were obliged to re- 
ceive it ; so far they were blameless. It came to Domii- 
thom^s hands, and the trustees were not to blame in 
letting it come to his hands ; but they might have after- 
wards made themselves responsible, by merely not doing 
what was incumbent on them ; by permitting the money 
to remain a considerable time in the hands of their co- 
trustee, they might, without any positive act on their 
part, have made themselves liable ; that will depend on 
the decree and extent of their laches in sufiering the 



1818» money to remain in the hands of the trustee. Br ice v. 

^ " Stokes (a) proceeds upon the doctrine that a trustee 

o. may become liable by knowing that his co-trustee had 

9y^^V9^f the money, and leaving it there. They being authorized 
to put the money out on mortgage, it would be rather 
hard to say that they were guilty of laches by giving 
Dpnnithome a little time to find a mortgage, taking his 
bond in the mean time. What passed in the interval 
between to the death of Donnithorne^ does not at all ap- 
pear. If it were necessary to decide the point, an inquiry 
before the Master must be directed. In December^ 1795| 
the money came again into Doimithome's hands, and the 
trustees being informed by Mrs. IVhitmore^ ^pply ^y letter 
' to have it invested : it appears that Miss Whitmore then, 
and not before, knew what the trust-property was. It 
4Qes not appear that she knew any thing of the pro- 
posed arrangement, but on the 19th December ^ she 
writes to say, that the money then in Do7inithorne's 
hands ought to be laid out in government security. She 
knew it was in his hands, that it was not properly there, 
and that she had a right to have it laid out on govern- 
ment security. When the proposal of Mr. Donnitkorne 
was communicated to her, she proceeded to consider it, 
with this knowledge of the trustees having before left it 
where it ought not to be. Tlie power of attorney re- 
cited, that Donnithome had been guilty of a breach of 
trust. It recited too, that which was not true, namely, 
that all the trustees had received the money ; they had 
no intention therefore to gloss over the transaction. It 
does not appear that she thought she had a claim against 
the surviving trustees, or that they were liable for a 
breach of trust. Without any direct communication 
from the trustees, she is left with this knowledge to ex- 
ercise her own discretion. The persons who commu- 

(a) 11 Vcs. 319. 




nicated with her are fair and honourable men : she saw 1818. 
the obsenrations of the trustees, and it appears that she Wajj^ii 
tally understood the transactions : this appears clearij ^ o. 
from her letter of 16th February^ three days after be 
had executed the power of attorney. 

If the trustees had known that they were personaDy 
ttiswerable to the Plaintiff horoeday^ I should have said 
Aat they ought to have communicated their knowledge 
to her, but it does not appear that they had the least 
suspicion that they could be personally answerable. 
Mr. Hdr^ \A Ms letter to them, does not represent 
them to be in any danger; he considers them by Mr. 
Dcnniihom^s bond, as being perfectly secure ; but they 
dlMineil ftoceditig to the proposal without the approba- 
ticMl <^ the WkiimoreSi and thought they would be in- 
curring a risk by not having that approbation. If the 
VlBiotiS Lotoeday had been advised as to what her situa- 
tion really was, she must have been told that it was 
very doubtful whether the trustees were personally an- 
tmertkke\ and I have no reason tb presume that, if she 
iMid been so advised, she would have resorted to the 
trustees, which would have made it necessary for them 
to enforee all the remedies they had against Kickolas 

I should have required a very strong case against the 
trustees, when I cannot place them again in the situa- 
tion in which they would have been if she had refused 
her consent. It is not immaterial in such a case, that 
after the trust-deed she receives the interest under the 
deed from the trustees of Donnithome. The acting 
under the deed, brings her assent to the deed, down to 
the time of her marriage. In Brice and Stokes^ the party 
was held to have precluded himself from relief because 








he had received interest from one of the trustees. There 
is no difiPerence between the receipt of interest from 
Brice, and the PlaintiflPs receipt of her allowance out of 
the trust-fund. Traffbrd v. Boekm. («) 

The receiving interest under the arrangement which 
proceeded on the breach of trust, and was the only com- 
pensation to be received for it, is at least as strong as 
receiving interest from one of the trustees. Smith v. 
French, (b) 

Can I say under all these circumstances that her con« 
sent was fraudulently obtained ? 

Bill dismissed without costs, as to all the Defendants, 
except Johanna Whitmore^ whose costs were to be paid 
by the Plaintiffi. 

The cause was heard before the Lord Chancellor on 
the 17th, 18th, 19th, and 25th of June, 1811, Isaac 
HarriSj and Johanna Whitmorej not appearing ; and on 
the 24th of August, 1812, his Lordship pronounced the 
following decree : — 

That the order of dismission made on the hearing of 
the cause be reversed, and that it be referred to Mr. 
Thomson, one, &c. to inquire and report in whose hands 
the trust-money, mentioned in the pleadings, had been 
since the year 1782 ; and when the same should appear 
to have been placed out upon any security or securities, 
to report on what security or securities the same was 

(a) 3 Ath. 444. 

(b) 2 Atk. 843. 




placed out ; and it was ordered, that the Master should 
state specially and particularly the nature of such se- 
curity or securities, when the same were not govern- 
ment or real securities, and also report in whose cus- 
tody, possession, order, or disposal, the instruments of 
security were from time to time ; and that the Master 
should also inquire and report what were the acts of 
each of the trustees respectively, as to the receipt and 
placing out of the trust-money from time to time, and 
the possession of the securities for the same; and it 
was ordered that such inquiry should be made, not only 
as to the acts of the trustees respectively, but as to the 
Gcmsent, permission, or privity, of each of the trustees 
respectively, to any act of the others, or other of 
them ; and that the Master should inquire and report 
whether the trust-money was at any time, and for what 
time, in the hands of any of the trustees without secu- 
rity, and whether the same was so with the consent, 
privity, or permission of the others, or other of them ; 
and in case, upon such inquiries, it should appear to the 
Master, that the Defendant, William Symonds, deceased, 
or Thomas Griffith, by any act, neglect, or default, 
committed any breach of trust, in respect of which 
they, or either of them, were or was answerable, per- 
sonally, for the trust-money, or any part thereof, that 
the Master should state in what such breach of trust 
took place ; and it was ordered that the Master should 
inquire and report whether the Plaintiff Laveday, pre- 
vious to her executing the power of attorney in the 
pleadings menUoned, had any knowledge or notice, that, 
by reason of such breach of trust, they, or either of 
them, were or was so answerable ; and it was ordered 
that the Master should state all special circumstances; 
and for the better discovery of the matters, the parties 
were to be examined upon interrogatories, &c. and his 
Lordship reserved the consideration of costs, and of all 








1818. farther directions, until after the Master should have 
w"^LiEii ™*^^ ^*s report; and any of the parties were to be at 
V. liberty to apply to the Court as they should be advised. 

R^. Lib. J3. 1811, foL 1211.' 

The master's report certified, that in Junef 1772, Mkn 
Whitmore^ the father of Lofoeday Walker, intermarried 
with Johanna^ daughter of Isaac Donnithome, upon 
which marriage Isaac Donnithome paid to John fViiU 
more 6000/. as the mamage portion of Johanna, in con- 
sideration whereof, John Whitmorc agreed to make an 
adequate settlement on her and her issue; and, as a 
security for effecting it, executed a bond to Isaac Don-^ 
nithonie for re-payment of the sum of 6000/.J with in- 
terest; that, on the 17th of January, 1780, no settle- 
ment having been made pursuant to the agreement 
Isaac Donnithome, by indenture of that date, assigned 
the bond, and 7900/. (the principal and interest due 
thereon) to Nicholas Donnithome, Thomas Griffith, and 
William ih^monds, (all since deceased,) upon trust that 
they should call in the money due upon the bond, and 
place it out upon a mortgage or mortgages of freehold 
lands, or upon government or other securities, in the 
names of themselves, their executors, &c. and pay the 
interest and produce to or to the use of John Whitmore 
and Johanna his wife, and their children, for their main- 
tenance and education, in such shares and proportions 
as the trustees should think fit, and after the death of 
John Whitmore, and Johanna his wife, upon further 
trust, to pay the 7900/. to and among their children, 
if more than one, and if but one, then to such only 
t;hild, on his or her attaining the age of twenty-one 
years, or day of marriage ; and in the indenture was 
contained a proviso, that the trustees should be answer- 
able for their own acts and defaults only, and that they 
dioold not be accountable for any loss or misearriage^ 




by any security or securities of the trust^money, in case 
the same happened without their wilful neglect or de- 
fault, and that they should not be accountable for any 
more money than what should be actually received by 
them or their order respectively : that in 1783 the 7900/. 
were paid by John Whitmore, in discharge of the bond, 
and invested by, and in the joint names of Nicholas Don-- 
niihomej Thomas Griffith, and William Symonds, deceased, 
as trustees under the indenture of settlement, on a mort- 
gage of a real estate in the county of Hertford, and the 
trustees received the interest of such mortgage as it be- 
came due, and paid one-fourth part thereof to John 
Whitmorej and the remaining three-fourth parts to 
Jchanna Whitmore, (who lived apart from her husband) 
for the separate use of herself and the Plaintiff, Loveday^ 
yiho was the only child of the marriage ; that in Janun 
aryj 1790, the mortgaged estate was purchased by, and 
conveyed (subject to the mortgage) to John Keysall, who 
thereupon gave to all the trustees six months* notice of 
intention to pay off the mortgage, which notice expired 
in August, 1790, and was enlarged to the 2d of October 
following when a reconveyance of the mortgaged estate 
was executed by all the trustees to KeysaU, but the mort- 
gage money was not paid off till the 12th January, 1 791, 
when Keysall paid it at his banking-house in London, 
to Nicholas Dotmithonie, with the privity and consent of 
his co-trustees, and Nicholas Donnithorne signed a re- 
ceipt which had been previously signed by his co-trus- 
tees, Thomas Griffith and WiUiam Symonds, deceased, 
and indorsed on the deed of reconveyance. 


The Master found by the affidavit of Benjamin 
Fallowes, deceased, of the city of Horford, sworn 
on the 11th day of Ju7ie, 1813, that soon after notice 
was given by Keysall to pay off tlie mortgage, William 








Symonds informed the deponent of such notice, and 
on behalf of himself and Thomas Griffith^ directed 
and requested the deponent to inquire for a good 
mortgage or real security, by the time it was to be 
paid ofi, pursuant to the notice; that a great deal of 
money was offered to the deponent about that time 
on landed securities, and that it was then, in the 
deponent's opinion, and as far as his experience ex- 
tended, very difficult in that part of the country, and 
as he believed generally in other paits of England^ to 
procure eligible real securities for money; and many 
persons in that part of the country were content to ac- 
cept of more scanty securities than were desirable, or. 
usually thought sufficient, under the circumstances, to 
prevent their money from lying dead, and to avoid 
placing it in the funds ; and that money might easily 
have been procured, to the best of his recollection, to a 
very large amount at that time at 4/. per cent interest, on 
such securities in that part of the country ; that he did 
not recollect whether Thomas Griffith personally did or 
did not ever speak or apply to him, about procuring a 
security upon that occasion, but that he considered 
William Symonds to have acted therein with the con- 
currence of Thomas Griffith^ and that the Deponent was 
not able himself to procure an eligible real security for 
the money, although he made all the inquiries, and used 
all the endeavours in his power so to do ; and he had 
every reason to believe, that Wm. Symonds and Thomas 
Griffith endeavoured, and most sincerely wished to pro- 
cure a proper r^al security for the money, and could not 
' succeed therein. 

The Master further found that Nicholas Donnithome 
wrote the following letter to William Symonds, dated 
the 31st o{ January, 1791 : " Dear Sir, I was eveiy 




day last vreek in expectation of receiving a line from: 18I8. 
yon, but a letter from my daughter yesterday surprised 
me much ; from my note-book the following is almost 
an exact copy of what I wrote you a fortnight ago. In Symonus* 
consequence of the letter I received from you a long 
time since, I have waited with impatience for Mr. Fal- 
UmeSy but all in vain. My friends and I have been 
constantly making inquiries for a mortgage for Mr. Whit- 
mor^% money, but we have never had a prospect of more 
than 4/. jper cent, and even that without any security 
for the punctual payment of the interest. As to the 
fimds, there has not been a probability of late of obtain- 
ing more than S| per cent, which would have been sad 
starving work. As I am now receiving in bills on the 
East India Company, dated at two years, to the amount 
of about 90,000/. I called on Mr. KeysaU, and we 
were both of opinion that it would be best to lay out the 
money in those bills, especially as the interest is 4t^per 
cent, (paid down) ; and, in case of a proper mortgage . 
offering, they may at any time be turned into cash at a 
week's notice. Mrs. J^.'s money was 7900/. ; but as I had 
not bills to the exact sum, we took 100/. from the in* 
terest, and discounted 8000/. bills. The interest for two 
years, less nine days, amounted to 711/.; but then you 
must deduct 100/. added to her capital, so that the in- 
terest received is 611/. ; half of this sum I will lay out 
in the best manner I can for her, and for the other part 
she must draw ou me from time to time, as she may 
have occasion. The 8000/. bills are to remain in Mr. 
Ket/salPs hands till tne mortgage is properly assigned ; 
and (with your consent) they may afterwards be con- • 
tinned with him for Mrs. fVhitmor^s use. Mr. Keysall 
told me, his notice ended [I think] the 2d of October ^ 
and that I must not expect him to pay interest after that 
day, to which time I suppose he has settled with you. 
Pray, are not the trustees of Mr. Powell liable to some 
Vol. III. E part 


181 8* part of the loss which Mrs. Whitmore has sustained? 
Mr. Keysall said he should write to you last week. -^The 
above was the substance of what I wrote you on the 
17th. As my mother expresses great anxiety, please to 
acquaint her with the. accident which has happened. 
Mrs. D. and I sent three letters to the office the same 
day. Two miscarried, the other went safe; which 
makesr the matter still more unaccountable. Please to 
tell me if you have heard from Mr. Keysall^ as he was 
very desirous to have the assignment made with all 

The Master found, from the several affidavits and 
letters aforesaid, and from the answer of William Sy~ 
mondsj that after the receipt of the trust^money from 
Keysallj it was not placed out upon any mortgage of 
freehold lands, or in the government ftmds, on ac- 
count of the difficulty of procuring an eligible mort- 
gage, and the low rate of interest from the government 
fimds, and that the trust-money, amounting (with the 
addition of 100/. from the interest) to 8000/., was 
possessed or retained by Nicholas Dormithome for the 
purpose of being applied in the discounting of cer- 
tain bills of exchange, drawn by him upon and accepted 
by the East India Company, payable at two years after 
date, agreeably to the proposals contained in his letter 
to WilUam Symonds; and that Nicholas Donnithame 
retained the sum of 8000/. accordingly, with the con- 
sent, permission, or privity of TTiomas Griffith and 
William Symondsj his co-trustees; but the Master 
•did not find, from any evidence laid before him, or 
otherwise (except as it might be inferred from the 
letter of Nicholas Ddnnithome^ dated the 81st tla- 
nuatyf 1791) that Nicholas Donnithome ever actually 
laid out the trust^money, or any part thereof, in 
discounting the bills of exchange on die East India 




Company, or upon any other security whatever; and 
iherefbre he was unable to state in whose custody, 
possession, order, or disposal the instruments of se- 
curity for the trust^money were from time to time, or 
what were the acts of the trustees respecdyely, or 
die consent, permission, or privity of each of them 
to any act of the others or other of them, as to the pos- 
sessicm of such securities. The Master also found, that 
Nicholas Donnithome continued in the absolute posses- 
sion, controul, or management of the trust-money, and 
the securities, if any, on which it was placed, without 
any interference of Thomas Griffith and William Sy» 
mondSf his co-trustees, or either of them, except as to 
the receipt and payment of the interest by Nicho* 
las Donnithome^ at the rate of 4^ per cent., to the 
parties entitled thereto under the settlement ; and that 
no inquiry appeared to have been made by Thomas 
Griffith and William Symonds, or either of them, touch- 
ing the Inlls of exchange on the East India Company, 
7the deposit ihJTL any safe custody, or the L 
cdpt of the trust-money when the bills became payable, 
7the investment th«eof in any security, from the 
month of January y 1791, (when it was paid by Key^ 
sail to Nidkolas Donnithome) until the 2dd ilfoy, 1 795, 
when William Symonds^ on the behalf of himself and 
TTiomas Griffith^ wrote the following letter to Nicho^ 
las Donnithome : — " D^r Sir, Mrs. Whitmore was so 
kind as to communicate the contents of your letter re- 
lating to our trust — I had yesterday the pleasure of 
dining with Mr. Griffith j when we had some conversation 
respecting our trust, and it was our joint opinion that 
the most beneficial step that could be taken is to 
invest the sum in th^ funds, which, from the present 
price, will produce nearly 51. per cent.,, with the prospect 
of an increase of the principal ; therefore, Mr. Griffith 

E 2 hath 







hath requested me to signify our earnest wish and desire 
that you will, as soon as you can conveniently, invest the 
whole sum in the funds, in the names of the three trustees* 

The Master further found, that, in consequence of 
the last-mentioned letter, Nicholas Donnithome^ either 
directly^ or through John Whitmore, (his brother-in- 
law,) requested William Symonds and Thomas Griffith 
to permit the trust-money to remain in his hands, 
and proposed to give a mortgage for it upon some 
estates in Cornwall^ of which he and his son, Isaac 
Harris^ were seized, and, in the mean time, to give the 
joint bond of himself and his son for the money, until 
such mortgage could be efiected ; that William Sy^ 
mondSf on behalf of himself and Thomas GrrffUh^ wrote 
the following letter to Nicholas Donnithome : — ^^ Dear 
Sir, this morning I had an opportunity of seeing Mr. 
Crriffith, when we called on Mr. Whitmore, who com- 
municated the contents of your last letter, from which 
we find it very much your wish for the trust-money to 
remain in your hands : therefore it is by no means our 
intention to subject you to any inconvenience ; and, as 
you are prevented from going into Cornwall so soon as 
you proposed, he requested me to express our joint desire 
that a bond may be prepared immediately for the whole 
sunv including your brother and son in it, who, you 
mentioned, would readily comply in the business, which 
would afibid you time for adjusting the proposed secu- 
rity. You may transmit tlie bond to Mr. Griffith or 
me, which is most agreeable." To which Nicholas Don- 
nithome wrote the following answer: — "London, 1st 
July, 1 795. Dear Sir, my son being absent for a few 
days, it was not in my power to pay immediate atten- 
tion to your letter. Enclosed you have the bond signed 
by myself and Isaac. How you came to name my bro- 
ther I cannot imagine. We are very friendly when we 

10 meet ; 



meet; but I am sorry to say, ever since my father^s 18-18. 
death, we have not been upon such terms as would jus- 
tify my making the request you mentioned. I shall now v. 
very shortly finish my account for the season at the Symonds. 
In^a House, and then I shall prepare for my journey 
into Camwallj &c'' The Master found, that the bond 
alluded to in the last-mentioned letter was executed 
by Nicholas Donnithome and Isaac Harris^ dated the 
19th of June, 1795, to William Symonds and Thomas 
Griffith therein described as two of the trustees under 
the will of Isaac Donnithome^ then deceased, in the penal 
sum of 16,000/., conditioned for payment of 8000/. and 
interest, on the 29Ui December^ 1795 ; and that Nicholas 
Donnithome transmitted this bond in his letter of the first 
July, 1795, to William Symotids; which bond appeared 
to have been the first and only security ever given for 
the trust-money, since the same had been paid by KeysaU 
in January, 179L 

The Master also found, that Looeday Walker attained 
the age of twenty-one years on the 21st of July, 1795, 
whereby she became entitled to a vested interest in the 
trust-money, to her own absolute use, after the death of 
her father and mother, who were entitled with her to 
the interest thereof, during their lives, under the trusts 
of the settlement ; and that on the 2\st of June, 1796, 
William Symonds, on behalf of himself and Thomas 
Griffith, wrote the following letter to Nicholas Donni^ 
thome : — " Dear Sir, as you have not favoured Mr. 
Griffith or me with a line respecting the further secu- ^ 
rity of Mrs. Whitmor^s money, makes me conclude 
you have some intention of seeing this quarter, and 
bringing it with you. From a late conversation with 
Mr. Griffith, he seems much dissatisfied relating to it, 
and hath requested me to signify his sentiments there* 
on ; that it is his urgent wish, that it mtglu be im- 

£ 3 mediately 


1818. mediately invested in the funds. I hope and trust that 
you will comply with his wishes, or, if more agreeably 
to youy to transmit without delay landed security, &c." 
The Master found that it did not appear, from any evi- 
dence laid before him, that any other correspondence 
passed between the trustees respecting the trust-money, 
or the proposed mortgage, prior to the 26th oi September j 
1796, when Nicholas Donnithome died, without having 
executed such mortgage, or repaid any part of the trust- 
money; and the Master was of opinion, that William 
Symonds and Thomas Griffith did commit a breach of 
trust, in respect of which they were answerable personally 
for the trust-money; and that such breach of trust con- 
sisted in their having permitted the trust-money to re- 
main in the possession, or under the absolute controul and 
management of Nicholas Donnithome^ without any se- 
curity, from January , 1791, to Jiib/f 1795, and in their 
having aflerwards permitted the trust-money to remain 
in the hands of Nicholas Donnithome, from July, 1795, 
to the 26th of September, 1 796, the time of his death, 
upon the joint bond of himself and Iscuic Harris. And 
the Master did not find that Loveday Walker, pre- 
vious to her executing the power of attorney, had any 
knowledge or notice, that, by reason of such breach of 
trust, William Symonds and Thomas Griffith, or either 
of them, were or was so answerable. 

To the report was annexed a monthly statement of 
the prices for sale of bank three per cefU. consols, in tlie 
years 1790—1795. 

William Symonds (deceased) and JohnLdUy took three 
exceptions to the report ; the first, that the Master had 
certified that he was of opinion that William Symonds 
and Thomas Griffith did commit a breach of trust, in 
respect of which they were personaUy answerable for 
the trust^moneyi and that such breiJbh of trust consisted 

9 in 


in their having pennitted the trust-money to remain in 1818. 
the possession) or under the absolute controul and 
managwnent of Nicholas Donnithomey without any se- 
curity, firom Januan/y 1791, to Jufyy 1795, and in their 
having afterwards permitted the trust-money to re- 
main in the hands of Nicholas Donnithome from Jufy^ 
1795, to the time of his death, upon the joint bond 
<^ himself and Isaac Harris^ whereas the Master 
ought to have certified that William Symonds and Thomas 
Gr^ffiih did not commit sudi breach of trust, inas* 
much as the trust-money at first came into the hands 
of Nicholas Donnithome^ and afterwards remained 
in his possession, or under hb absolute controul or 
management, without the knowledge^ cmisent, or pti« 
▼ity of the Defendants, inasmuch as the bond was 
accepted by them only as a security in the mean time, 
and until some real or other sufficient security could bef 
obtained : The second, that the Master had certified that 
he did not find that Lcweday Walker^ previous to her 
executing the power of attorney, had any knowledge or 
notice that by reason of such breach of trust, William 
Sifmonds and Thomas Griffith^ or either of them, were or 
was answerable personally for the trust-money, or any 
part thereof; whereas the Master ought to have certi- 
fied, that Loroedajf Walker had, previous to the time afore- 
said, sufficient knowledge or notice of all the facts firom 
which it was or might be inferred that William Sy^ 
numds and Thomas Griffith^ or either of them, were 
or was so answerable: The last, that the Master 
had not stated all the special circumstances of the 
case, from which it might be inferred either that 
William Symonds and Thomas Griffith were not so 
answerable, or that Looeday Walker had such know- 
ledge or notice as aforesaid, and particularly had 
not set forth her letters of the 8th of May^ 1796| 
and the 19th of December^ l796 ; and also that the 

£ 4 Master 






Master did not state, that previously to her execut- 
ing the power of attorney, she was attended by the 
solicitor for Isaac Harris, who, in the presence of 
Sir WiUiam Curtis^ a personal friend of her and her 
&mily, read to her the trustp-deed in the pleadings 
mentioned, and fully explained to her its provisions, so 
far as it affected her own interest, and that she was not 
called upon to sign, and did not in fact sign the power 
of attorney, imtil the day following that upon which the 
trust-deed was so read and explained to her ; and also 
that the Master had not in like manner set forth her let- 
ter of the 14th February, 1797, and had not stated that 
Nicholas Donnithome (the co*trustee of the Defendants) 
was brother to the Defendant Johanna Whitmore, and 
uncle to Laoeday, and a merchant of great eminen<^ 
residing in London, and as such constantly applied to 
and corresponded with by Johanna Whitmore, and by 
Lofoeday after she came of age, on all matters of busi- 
ness, and especially on all matters connected with the 
trust property ; and that WiUiam Symonds and TTiomas 
Griffith (deceased) were then in advanced life, residing in 
the country, at a considerable distance from London^ 
which they seldom or never visited, and wholly unac- 
quainted with the general habits of business; and that it 
did not appear that they withheld from, or neglected to 
give to, Ixroeday any information in their power respecting 
the state of the trust property. 

In Jafiuaiy, 1816, the Defendant WiUiam Symonds 
died, and the suit was revived a^pinst his executors, 
WiUiam Symonds and Thomas Cook. 

April s. 8.11. The cause was now heard on exceptions, and for fur- 

^^•^®- ther directions. 



1^ Samud Romilfyj Mr. Bell^ Mr. Treslooe^.md Mr. .1818. 
Meriude, for the Defendant, in support of the excep- 
tions, (a) 

Tie object of the bill is to rescind a transaction to 
•which the Plaintiff Mrs. WaUcer^ was a party, with fiill 
knowledge of all the drcmnstances, and, consequently, 
to charge the trustees with a breach of trust, when, by 
the effect of that transaction at this distant period, they 
can never be restored to the rights and remedies which 
they previously possessed. The facts were all known to 
the Plaintiff; the l^gal consequence, that the trustees 
were responsible to her for a breach of trust, could not 
be communicated to her by them ; they knew it not 
themselves. Whatever loss occurs is the effect, not of 
taking the bond of Nicholas Donnithomej which was 
confessedly a breach of trust, but of relinquishing it, 
as one term of that arrangement which the Plaintiff 
expressly sanctioned. 

They dted Brice v. Stokes (i), Joy v. Campbell (c), 
Don^ V. Blake {d\ Bacon v. Bacon (e\ Balchen v. 
ScoU (/), Trajffbrd v. Boehm (g). Smith y. French. (A) 

Mr. Hart^ Mr. Agatj Mr. Roupel^ and Mr. CoUinson^ 
for the Plaintiffi, supported the report for reasons stated 
in the judgment. 

During the argument, the following remarks were 
made by 

{a) The detailed statement of (c) 1 Sch. 4* Lef. 528. 

the cas^ which was thought ne- (d) ft Sch. ^ Lef, 251. 

caawrj fiiDy to explain the eflfect {e) 5 Va. 351. 

of the jud^ent and decree, may (/) 5 Va, 678. 

dispense with a more particular (g) 5 Atk, 440. 

rqx>rt of the argument. {h) 2 Atk. 345. 

(b) 11 Vei.3l9. ^ 





7%e Lord Chancellor. 

The investment of the trust*money in East India bills, 
as stated in the power of attorney, is no breach of trust ; 
but as stated in the report, it is. The representation of 
the report is, that two of the trustees permitted their co- 
trustee to draw bills on the East India Company, pay- 
able not to them, but to him ; and it is extremely diffi- 
cult to maintain that that is not a breach of trust, if done 
with their consent, as in effect placing the amoxmt under 
his controuL The money is then received by him, and 
converted to his own use ; it might be^ that neither the 
receipt nor the conversion by him was a breach of trust 
in him : but whether studiously, or from whatever mo- 
tive, the power of attorney recites a breach of trust in 
him, making no mention of a breach of trust by them. 

Duty of triM* 
tees to obtain 
of the disposi- 
tion of the 
trust fund. 

It is the duly of trustees to afford to their cestui 
que trust accurate information of the disposition of the 
trustriund ; all the information of which they are, or 
ought to be, in possession : a trustee may involve himself 
in serious difficulty, by want of the information which it 
was his duly to obtain. 

The questions are, first, whether the power of attor- 
ney accurately stated all the facts; next, supposing 
diat it did so state them, and that there was no other 
instrument, whether the trustee and the cestui que trust 
were bound to know the law ; but the latter question 
cannot arise unless the trustee and the cestui que trust 
were on equal terms. The representation contained in the 
power of attorney must be considered, recollecting the 
reference toFaUawes^ the attorney of the trustees, to fill up 
the blanks, which he did, asther^resentationof those 
whose attorney he was. Tliat instrument is studiously 
prepared to express that there had been no breach of 



trust till the money came into the hands of Nicholas 
Donnithome s but I never saw a case in which there was 
a plainer breach of trust by the act of the trustees, 
in placing the money under the controul of their co- 



Till her marriage, the Plmntiff, Mrs. Walker^ had no 
proper^ sufficient to enable her to institute a suit, de- 
pending entirely on the discretion of the trustees. 

Hie LoRn Chancellor. 

This case, which comes before me on excq)tions to 
the Master's report, has been argued as if on fiurth^ 
directions; and it is extremely difficult, regard being 
had to the nature of the excepdpns, to discuss the 
matter in any other way. The duty which I mean 
now to discharge is to state what occurs to me cm 
the case, considered as a case heard on farther direc* 
tions. I do not see how it is possible to support the 
exceptions. The comprehensive view which I have 
taken of the case, and a reference to my own notes, 
render it proper to say, that if the parties desire to 
address me, by one counsel on each side, I shall be 
ready to hear them. 

The bill is filed to charge the representatives of cer- 
tain trustees with the consequences of a breach of trust, 
and to render them responsible for a sum of about 
80002. I take notice at the earliest moment, that whe- 
ther the trust-money was 7900/. or 8000/., a circum- 
stance immaterial in many respects, may be material in 
this respect, that the person who was cestui que trust of 
the monqr seems not verjr accurately informed whether it 


Apfm Sl« 


1818. was one sum or the other, or whether it was derived 

*^ - under a settlement or a will. 



StmoHm. j Jjj^^ Y)een furnished with a copy of the judgment of 

the Master of the Rolls (a), and I have also read the 
decree embodying that judgment in the form and lan- 
guage of the Court I observe that the record states, 
that when die cause was heard before the Master of the 
RoUs, no documents were read except three letters ; no 
part of a correspondence most material to be consider- 
ed. I do not differ from the principles which the Mas- 
ter of the Rolls adopts in his judgment. 

In proceeding to consider the fiu:ts, I am first bound 
to say, that i^ when this cause was heard before me, 
I was wrong in directing a reference to the Master 
to make the inquiries which the decree specifies, stiU 
the cause is in sudi a state that I am bound to con- 
skder myself right ; if wrongs the course of proceeding 
was by rehearing or appeal. I will add, however, that 
looking again at the record, and the evidence which was 
read to me on the hearing, (I see by the decree that all 
the correspondence and other documents were read,) 
looking at the pleadings, and recollecting the principles 
on which the Court must act^ that it proceeds secundum 
all^ata et probata^ not permitting a new case, I think 
that the record not only justifies but requires the relief • 
which I gave. 

The Master of the Rolls observes, that the founda^- 
tion of the Plaintiff's case is, that the consent of Lctoeday 
Walker was improperly obtained; that the objection is, 
that it would be impossible to replace the parties in the 
situation in whidi ihey were. when the deed was exe- 
cuted ; but that it would not therefore follow, if the 

(a) AnUff4iO. 



deed had been i0ipn^>erly obtained^ that the Plaintiffi 1818. 
were precluded from relief. This observation applies 
to the effect of the transaction of the trustees, in signing 
the deed of arrangement with the representatives of 
Niddas DonnUhome under the authority, if thqr had 
the authority, of the Vlsm^ Laoedmf. If there is any 
proof of the day on which the deed was executed, it has 
escaped me. (a) The day is extremely material, for 
supposing the power of attorney exposed to fewer ob- 
jections than I think, still it was in its nature I'evocable ; 
and the circumstances before the 1 1th of February^ when 
Hardy attended Loveday Walker^ must be recollected. 
The observation of the Master of the Rolls, that the 
objection that the Defendants are placed in a different 
situation, would not prevent relief^ I understand thus, 
and I agree in it; that though the cestui que trust has 
done an act which places the trustee in a different siti^ 
ation with rc^rd to relief against third persons, yet if 
the circumstances are such that the act may be consider- 
ed as the trustees' own act, rather than the act of the 
cestui que trusty it will not bar relieC 

The Master of the Rolls adds, the trustees ^^ would 
probably not have assented to such a deed as has been 
executed/' The accuracy of that pnqx>sition remains 
to be proved* 

I agree with the Master of the Rolls, that there is 
no pretence for a charge of fraud ; because whatever 
ground there may be in any case, I say not that in the 
present case there is any ground, to suspect imposition, 
it ought not to be imputed unless clearly proved* But 
whether there wascommunication from the trustees to the 
Plaintiff Loveday; whether any personal influence was at- 

(a) It was stated from the bar been executed on the Wednesday 
that the deed appeared to have preceding the 9th ot Aprils 1797. 





tempted to be used for inducing ber to accede to the pro- 
posed arrangements, are questions tbat cannot be deter- 
mined withoutadverting tothetransactions in which /£zr^ 
was engaged ; and I take the liber^ of observing that it 
was impossible for the Master of the Rolls to attain a satis- 
factory conclusion on so little evidence as was before him« 

The next proposition adopted by the Master of the 
Rolls is, that there was no concealment Concealment 
is of difierent natures ; an intentional concealment, and 
an actual concealment where there may be an obli- 
gation not to conceal, even if disclosure is not required. 
But the view in which it appears to me that this case 
must be examined is this ; and the questions which it 
raises are, first, whether a trustee is not bound to com- 
municate &cts which he knows relative to the disposi- 
tion of the trust-money ; next, whether, supposing he 
is not bound, yet in the circumstances of this case^ 
Hardy and Fattaaoes are not to be considered as agents 
of the trustees, and also, as their agents, takixig on them- 
selves to make representations and give information; 
whether they have not said to the cestui que trusty we 
state to you certain circumstances ; you know nothing 
of many other circumstances which we might have 
communicated; you act on that information, and we are 
now entitled to say, you shall require no farther inform- 
ation firom us. 

The principles on which the liability of trustees must 
be decided cannot be mistaken ; though it appears firom 
a book for whidi the profession is this day indebted to 
Mr. Edetij that Lord Northitigtan held doctrines diflfer- 
ent firom those on which we have been accustomed to 
proceed. The judgment in Harden v. Parsons (a) is, 

(a) 1 EdtUi 145. 



in moE€ respects than one^ a curious document in tha 18l8. 
histoiy of trusts as administered by this court Lord ""- "^ 
Nortiingion says, ^^ the lending trustHmoney on a note v, 

is not a breach of trust, without other circumstances S^^o)<^* 
erassa n^UgentuB. That is plain from the case of 
Rfder v. Bickerstonj where a sum of money was left to 
be placed out on security, with the best interest that 
could be got. The executor had lent it on a note with- 
out interest. Did the Court say that it was a clear 
breach of trust to lend it on a personal security ? no." 
The &ct is, that the Court said, yes ; declaring that the 
trustee having placed out the money neither at interest 
nor on security, had committed a direct breach of trust 
in both respects, {a) Lord Northifigtan proceeds to 
state a most material circumstance in the case; a ** deli- 
berate, uniform, and steady confirmation." The editor The inveit- 
of this valuable work has taken the trouble to subjoin a monejoaper- 

great variety of cases, all of which contradict the doc- •^"•l ••^^ 
7. ,, ^ . . , ..Ma bresch of 

trme that mvestmg trust-money on personal secunty is tnuL 

not a breach of trust, {b) 

Without going through all the cases, it is obvious, 
that j^rniia Jacie there is this distinction between execu- 
tors and trustees ; that one executor can, and one trus- 
tee cannot, give a discharge: and it may frequently 
happen, as in Brice v. Sttd^s (r) it actually happened, 

(a) I lSdenfl49.n. See Ryder retf in some measure shall be 

▼. BickcrionyposLp. 80. n. Adjfe v. paid, while it is in his hands, and 

FeidUeieau^ pat, p. 84. n . if be let it out to such men as are 

(h) The doctrine of Lord Not' trusted and esteemed by others 

tkhigtonj though now clearly to bemen ofworth and alulity, 

ofcr-roled, seems to have been if any loss happen, he shall not 

authorised by some early deci- bear the loss Uiereof. Per Lord 

dons. ** If a roan be trusted with Keeper in Cane. S5 Jan. 1657^ in 

money as executor or otherwise Sir Edward HaU^t and the Lady 

for diildren's portions, thou^ Car*% case. MS. 

no interest be reserved, yet inte- (c) 11 Vet. 919. 



1818. not okily that one trustee cannot give a discbarge, but 
that the instrument of trust provides that there shall be 
no discharge without an act in which all the trustees 
join. Executors seem formerly to have been charged 
on much stricter principles, if they joined unnecessarily, 
thou^ without taking the controul of the money; that 
rule is now altered: whether the alteration b whole- 
Lialnlity of some may be a question. It may be laid down now, 

executors ^ ^ Brice v. Stokes, that thouirh one executor has 
joining ma ^ ^ ^ ^ 

receipt. joined in a receipt, yet whether he is liable shall depend 

on hU acting. The former was a simple rule, that 
joining shall be considered as acting ; but in the cases 
since the rule that joining alone does not impose re- 
sponsibility, scarcely two Judges agree. 

CcMhuqiutnut Jt is established by all the cases, that if the cestui que 

concumnff or .•.•#• 

acquiescing in ^^^^ joins with the trustees in that which is a breach of 

a bmch of trust, knowing the circumstances, such a cestui que trust 

titled to relief, can never complain of such a breach of trust. I go 

further, and agree that either concurrence in the act, or 

acquiescence without original concurrence, will release 

su^ect to in- ^^ trustees : but that is only a eeneral rule, and the 

quiry into the . , , 

orcumstances Court must inquire into the circumstances which induced 

which induced concurrence or acquiescence ; recollectinir in the con- 
concurrence , , * , , P 

or acquies- duct of that inquiry, how important it is on the one 

hand, to secure the property of the cestui que trust; and 
on the other, not to deter men from undertaking trusts, 
from the performance of which they seldom obtain either 
satisfaction or gratitude. 

In this case, the effect of the whole correspondence is 
very different from the effect of that part of it which was 
read to the Master of the Rolls ; and it becomes neces- 
sary, therefore, minutely to consider the whole. In 
December^ 1795^ Lofveday wrote a letter to the trustees, 





requesting information and a provision; the trustees 1818. 
allowed her 100/. jper annum. She afterwards wrote to w ^ 
inquire the effect of her grandfather's will. The mate- v. 

riali^ of that circumstance, though much affected by 
what passed afterwards, consists in this ; that the bond 
executed by Nicholas and Isaac Donnithame, is not ex- 
ecuted to the trustees under the will : it is executed to 
Griffith and Symonds as trustees, but in fact they were 
not trustees under the will. It becomes material, recol- 
lecting Hordes letters, to know whether they had any 
claim under the will. 

In September^ 1790, WiUiam. Symonds writes to Key^ 
sally acknowledging the receipt of a sum on account of 
the interest of the mortgage, and stating that Fallawes 
had provided a security for the principal, which would 
be ready before KeysaiFs notice expired. In examining 
the evidence to show the activity of the trustees, and of 
FalloweSf who was their agent, to provide a proper se- 
curity for the trust-money, I have not found that Fair 
lawes has given any explanation of this circumstance, or 
even mentioned it. 

Between Janua;^, 1791, and Jlfflry, 1795, I find no 
correspondence proved in the cause ; no communication 
when the bills were paid in 1793 ; no inquiry what had 
become of the money, till the 23d of May^ 1795. 

When this cause was reheard, following what the 
Master of the Rolls intimated he should have thought 
right if he had given a different judgment, I directed 
an inquiry relative to the period between 1791 and 
1795. The case comes back witli a report stating 
a clear breach of trust in leaving the trust-fund in 
the situation represented, from 1791 to 1793, and 

Vol. hi. F from 


1818. from 179S to 1795. The report states that the mo^ 
-^' ' ' ney was laid out, with the consent of the trustees, in 
o. India bills, payable to Nicholas Donnithame; a palpable 

• breach of trust, by placing the fund under his controu], 
secured by little more than a promissory note payable to 
himself. It was probable that in 1793 he would receive 
the money, and it would be lodged in his hands ; and I 
repeat, that although the Court in directing an inquiry, 
will proceed as favourably as it can to trustees who 
have laid out the money on security from which they 
cannot with activity recover it, yet no judge can say 
that they are not guilty of a breach of trust, if they suffer 
it to lie out on such a security during so long a time. 
Here is a distinct breach of trust ; and I lay the more 
stress on it because it has been represented in argument 
that the chief breach was the laying out the money on 

The V\»mt\S Ixweday^ who appears to have had no- 
thing beyond her expectations under this settlement, who 
was living separate from her father and mother, them- 
selves separated, was so little informed of her rights, 
that she knew not whether she was entitled under a will 
or under a settlement 

Whether the letters which passed between Nicholas 
Donfiithcme and his co-trustees relative to the invest^ 
ment of the fund were communicated to the cestui que 
trust J appears not ; I therefore take it for granted that 
they were not communicated. Between Jtdy^ 1795, and 
June^ 1796, I do not find any transaction, though the 
bond was payable at Christmas^ 1795, except three 

Receipt after receipt by the Plaintiff Lcneday of her 

* annual 



anmial allowance is in evidence: but will any one con- 
tend that this sort of receipt, while she yet knew nothing 
<^the breach of trust, can amount to acquiescence? 

It appears that in Naoember^ 1796, his co-trustees 
were pressing for security irom Nicholas Donnithome^ 
and giving the strongest evidence, that from regard 
either to the situation of their cestui que trusty or to thdt 
own, they thought themselves bound to use exertions in 
ig this monqr from him. 




Hardy, in his letters, assumed to represent to the 
Plaintiff Zionfc&ty, that it was of no consequence whether 
she cJMCuted the deed of composition ; and while it has 
been gravely contended before me^ that he supplied her 
vrith ample information concerning the trustrmoney, k 
if)pears that long after that time he was himself seeking 
information, as knowing nothing of it ; and in every 
letter he holds out the expectation of punctual payment 
of interest. 

In November^ 1796, the matter stood thus: The trus*- 
tees had been guilty of a breach of trust, in permitting 
the money to remain on bills payable to Nicholas Donni-' 
ihome alone, and in leaving the state of the funds un- 
ascertained for five years ; they had the bond of Nicholas 
Donnithome^ who was dead, which affected his assets as a 
specialty debt ; whether they had a judgment no one 
knows; they had also a claim on Isaac Donnithome, in 
his own right and as his father's executor. I knew 
enough of Mr. Hardy to be satisfied that he must have 
been aware that without tlie signature of the Plaintiff 
Lo/oeday, no deed executed by the trustees could have 
discharged Iscuic Donnithome from a demand on behalf 
of the Whiimore family; that her consent was necessary 
to discharge the trustees, and that without it, Isaac 

F 2 Don- 



Donnithome^ as the representative of a deceased trustee, 
could never be discharged. 

There is another observation, material towards as- 
certaining whether the Plaintiff Lcweday understood 
her situation. The trust^eed relates to a person en- 
gaged in great commercial concerns in London: and I 
find in it a proviso usual in such deeds, that no one 
who has signed it shall thereby be taken to dischai^ 
any person but the parties to that deed ; now, if the 
Plaintiff Loveday had been informed that Griffith^ St/^ 
fnondsj and Isaac Donnithome were liable, and asked 
whether she chose to release them by signing the deed, 
more especially when pressed bjr Fallowesy representing 
that all the creditors thought it for their satisfaction, iis 
it to be supposed that she would have placed hei^elf in 
the situation of releasing other persons, when no other 
creditor executed any such release? 

It appears that in December^ 1796, she knew that the 
money was in the hands of Nicholas Donnithome; but 
whether she knew that it was there by breach of trust 
is a different question. The letter of the trustees, dated 
the 24fth of December^ in reply to her inquiries, merely 
refers her to Hardy, and then he is tlieir agent for the 
purpose of making representations. 

In a very material letter of the 20th oi Januaty, 1 797, 
to SymondSf Hardy, whom they had made their agent 
for the purpose of communication to the Plaintiff Love- 
day^ applies through them to Fallcnoes for information 
of the circumstances under which the money came into 
the hands of Nicholas Donnithome, the most important 
subject of that communication. 

I admit that if these transactions had been fairly re- 



cited in the power of attorney, there would be no ques- 1818. 

tion in this case ; having regard that the protection of w^Lna 

the Court to infents is continued after they have attained v. 

21 J until they have acquired all the information which 

might have been had in adult years. Protecaon in 

respect of in- 

fancv conti- 



nued after 

his Utmost endeavours to prevail on the Plaintiff ZrODei&ry proper inform- 
to execute the deed. t^"^ 

We come now to the acts of Hardy in the performance 
of his mission. It appears that on the 11th oi February^ 
17979 Hardy attended the Y\&\xii\^ Laoeday^ then Miss 
Whitmore^ with the draft of the ti*ust-deed, and a paper of 
observations, written, as I understand, by Mr. FaUaaoes; 
and it becomes material to attend to the whole of that 
piq[>er, as supplying very strong observations in favour of 
the Plaintiff, and, it is but justice to add, as laying the 
foundation, so for as concerns the allowances to be made 
to the Donnithome family, of the most effectual point of 
defence in the present case. This is the representation 
of the trustees, drawn by FaUaweSy and delivered by 
Hardy^ who must have known that it was the interest 
of the trustees to conclude this arrangement, otherwise 
they acted at the risk of making a communication which 
would not be complete, and where the Plaintiff would 
not have acceded to the arrangement if the communica- 
tion had been complete. It is, I admit, very unfor- 
tunate that trustees acting without a supposition of 
liability, are afterwards made liable; but it would be 
impossible to maintain this proposition, that, because 
trustees are not aware that they have committed a breach 
of trust, they are not responsible. It is said, that Miss 
Wkitmore did not apply to them to know what they had 
done ; my answer is, that, without waiting for an applica- 
tion, they made, to her an imperfect representation. 

F 3 They 







They take on themselves by their agents to make a 
representation, not being required so to do ; and that 
representation is not adequate to the circumstances of 
the case. There had been much correspondence with 
Mr. and Mrs. Whitmore^ not one syllable of which was 
communicated to Miss Whitmore. 

If there were a clear statement of a breach of trust 
on this power of attorney, I was wropg in directing an 

To a certain extent, DarniHhom^s fiunUy have had 
the benefit of this arranganent; they have had the 
benefit of a trust-deed executed otherwise than it 
^ould have been executed, if Miss fVhitmore had 
considered only her own interest. It is immaterial 
whether the instrument was written or engrossed in 
the country; but it was drawn by Fattowes^ because 
Hardy had not sufficient information to know how to 
draw iU 

The recitals in the power of attorney are such as, in all 
human probability, for I can carry it no &rther, FallBweSy 
9t the desire of Hardyj had thought proper to insert re- 
lative to the manner in which the money had been di^ 
posed of. It has been in^ted here that Miss Whitmore 
must have known that which I am sure Hardy himself 
would say he knew not 

I stop not to inquire, whether the investment of the 
money in East India bills was a breach of trust ; but it 
is clear, that this power of attorney states a different 
breach of trust;, stating nothing of the bills being 
payable to Nicholas Donnithome only, or, when the 
money was received^ it proceeds to state that he^ ^^ in 
breach of his tnist,'^ applied the mooey to his own use. 

I should 



I should be glad to know whether this is information 
which would have communicated to the most expe- 
rienced man in this court the circumstances of the case; 
or, whether any one could hesitate to conclude, that the 
statement purported that there was no breach of trusti 
until the receipt of the money by Nicholas Dormitkome, 
omitting the period iixHn 1793 to 1795 ? 


It was necessary to recite the bond ; and I do not 
mean to say that the mention of the bond would not 
satisfy the ordinary notion of reciting it; but the ma- 
teriali^ of the recital consists in this, that it refers the 
bond to the indenture of settlement, while the bond 
states the money to be due to the obligees as trustees 
under the grand£ither's will. It is impossible not ju- 
didally to infer the purpose of FaUowes in drawing this 
instrument, and I will add, of Hardy^ if he permitted 
himself to give instructions for preparing it, without 
fiurther infiHination. I cannot doubt whether Miss 
Whitmore understood her claims ; it is clear that Ctartis 
did not understand the deed. 

The Master of the Rolls seems to have thought, that 
the only breach of trust was taking the bond ; that was 
a breadi of trust; but he says, and I think rightly, that 
if he had not found other grounds for dismissing the 
bill, inquiry would have been necessary. I agree with 
the Master of the Rolls, that inquiry might, on the 
principles of this court, have discharged the trustees in 
given circumstances irom breach of trust If, without 
previous participation, they, in June, 1795, had found 
that they, being implicated in no breach of trust till that 
time, had a co^trustee who had been guilty of a shameful 
violation of his duty, and immediately exerted them- 
selves to obtain from him a mortgage, which v/as their 
object at that time, and used their utmost efforts, instead of 

F 4 filing 







filing a bill in this court against him, which, perhaps^ 
might have destroyed his means of giving security, I should 
have hesitated long before I charged them, if inquiry 
had satisfied me that for a simple contract debt due to 
them they had taken a bond and a mortgage, instead of 
instituting a suit, with the rational hope that by means 
of the bond and the mortgage they should obtain pay- 
ment from their co-trustee; in such circumstances, I 
should readily agree with the Master of the Rolls. But 
when they take no steps on the arrival of the period at 
which the bond becomes payable, and choose to commu- 
nicate to the cestui que trust that they have takeaa bond, 
but not what is the effect of it, that is not a communication 
which can entitle them, in this stage of the cause, to in- 
sist on circumstances of which, if inquiry had been di- 
rected, they might possibly have availed themselves for 
their protection. 

This young lady, who had sought information from 
her trustees, what were her interests under her grand- 
father's will, was so little acquainted with he; rights as 
to suppose that she claimed as legatee under a will, while 
her real title was as a purchaser under a settlement In 
the house of Mr. Shermi^ nearly connected with Isaac 
Donniihome^ pressed both by her father and mother, 
with whom it appears that communications had been 
made; having no other property, for so the trustees 
state ; with an offer of 502. when she is solicited to exe- 
cute this instrument, and a promise that the arrears of 
interest shall be punctually paid afier the execution; 
compelled, on not executing, to leave the house of 
Shersofiy and because she would not act under the sug- 
gestion of her father, become the object of his bitter 
reproach ; in such circumstances, I desire to know whe- 
ther, but for the allowances, any question could be made 
in this case? 



- Where the troslee and cestui que trust are equally in- li918.' 
formed, or the cestui que trust requires no information, 
desiring to speak most guardedly, I think that the doc- 
trine of this court would not protect the trustee; but 
siqiposing that it would, as in Brice ▼. Stokes^ that case 
is not applicable to this. I cannot allow to these trus- 
tees the b^iefit of the observation, that information was 
not required ; they volunteered to give information, and 
gave it in a way which was calculated to induce the 
cestui que trust to believe that it was all that was to be 
given. The Master of the Rolls has recorded his 
opinion, that if any fraud or surprise was practised, the 
execution of the power of attorney would not have 
barred relie£ He who^ undertaking to give inform- Imperfect ia-^ 
adon, {^ves but half information, in the doctrine of this equivalent to 
court, conceals. The authority being in its nature re- concealment, 
vocable, the mere signification of a purpose not to be 
bound by it was sufficient. The receipt of interest is 
not binding^ imless it can be shown that she was pre- 
viously apprised of all the circumstances. The trustees 
have had the opportunity of explaining the case before 
die Master, and have proved nothing ; on the contrary^ 
the report brings forward a case of breach of trust, such 
as was not thought before, and such as authorises me to 
say that she knew not how the money was disposed of 
after it was received in 179S. Pajrments were made to 
her at the time, for the purpose of procuring her to exe- 
cute what would be useful to Isaac Dormithome^ under 
the pretence that it would be useful to her, placing be- 
fore her ey^ money which she was to receive in case 
she signed the instrument ; she at that time having no- 
thing for her support except what she could acquire 
through all the difficulties which encumber a cestui que 
trust, to whom the trustees have not done their duty. 






This is a case of great importance to trustees in gene^ 
ral, and illustrates the necessity of attending to every 
word in transactions of this nature. It is one of the 
cases which conyince me at a mature period of my ju^ 
dicial life, that it is impossible to comprehend such 
questions without minute examination of every ^fiict, and 
reiference to all the documents. 

The PlaintiflT Loveda^ Walker is entitled to relief and 
the trustees must stand in her place under the deed. 

4prtf t5. Mr. Hart proposed, that the decree should declare 

the trustees personally liable for the trust-money; 
leaving them to proceed for their indemnity against the 
estate of Nicholas Donrdthome. 

Sax Samuel Bomilfy objected, that it was unprecedented 
to allow a cestui que trust seeking compensation for a' 
breach of trust to select two of the trustees, and pro* 
secute no claim against the third ; and that the Defend- 
ants could effectuate their equity only by means of the 

iMoy S6. The Lord Chancellor. 

The result of the case is, that the Plaintiff Ixfoeday 
Walker has a demand against both the Defendants fi^r 
the amount due; and that they must take their remedy 
against those who made the composition, to recover il 
as their own debt. The question is, whether this is not 
to be considered as a case of concert between Isaac 
Harris and the two trustees : the consequence of which 
is, that they must arrange with each other as they can, 



iMking up to the Plaintiff the amount. The ccMnpoai- 1818. 
tion cannot be rescinded, unless the Plaintiff files a bill 
against all the parties to that deed ; and the single qoes^ 
tion now is, whether in all the circumstances of this 
case, and having regard to general principles, the 
Plaintiff was at Ubar^ to abandon her remedy under 
the trust-deed, and charge the surviving trustees per- 
sonaUy ? 

The Lord Chancellor. jtM^ lo. 

When three trustees are involved in one conmum R^tofa£«i^ 
breach oi Xxs^t, ^ cestui que tnM suffering from that J^^^^^. 
breach, and proving that the transaction w^s neither ately against 
authorised nor adopted by him, may proceed against implicated in 

either or all of the trustees. The present case com- a joint breach 

prises this peculiarity, that Isaac Harrisy bdng the son 

and representative oi a deceased trustee, by deed dedi- 
cates all his own fortune and the assets of his frtfaer^ to 
the payment of debts, including the trust-fund ; and by 
the form of the arrangement, he becomes the debtor of 
the co-trustees, and they become his creditors ; if with 
the approbation properly obtained of the Plaintiff Ziooe- 
day fValterj she has no reason to complain. Her d^ 
mand against the assets of the deceased, it i^pears to 
me, might be forced under the trust-deed, but then all 
persona interested in it must be parties to the suit. 
The real question is, whether on this record in its pre- 
sent st^le, supposing the Court right in declaring the 
two surviving trustees guilty of a breach c{ trust with 
the deceased trustee, the Plaintiff is not entitled to 
i4)9ndon all benefit of the trust-deed, and charge the 
survivors with breach of trust, and also the repre- 
sentative of the deceased ; to say that the assets have^ 
without her concurrence, been placed in such a state 



1818J that she is not bound to pursue them, but may leave the^ 

^ '~ ' '^ sunrivors to indemnify themselves thence ? If she abides 

V. by the trust-deed, she must abandon her claim against' 

Symonds. ^g survivors. 

June IS. The Lord Chancellor. 

I have again read the papers, and the view which I take 
of the case is this. 

The first question is, with reference to the exceptions, 
whether there was a breach of trust? It clearly appears 
to me that there was; and the result is, that Nicholas 
Donnithome and the other two trustees were responsible 
for the consequences of that breach of trust. The de- 
fence of those who represent the co-trustees was founded 
in this, that the Plaintiff Mrs. Walker had given to 
them authority, by the power of attorney, to conclude 
the compromise with Isaac Harris^ the representative 
of Nicholas Donnithome^ and that she must be consi- 
dered in their persons as a creditor, not on the assets of 
Nicholas Donnithome^ but on the funds provided by the 
trustrdeed, to which, as it was insisted, she was a par^. 
On the former occasion I reviewed the whole evidence 
and correspondence for the purpose of stating the grounds 
of my opinion, that she could not be considered as a 
party to that instrument, so as to exclude her from a de- 
mand against the trustees; and I particularly adverted 
to the circumstance, that the other parties to that deed 
saved their rights against third persons. It is necessary 
for me to point out to those whose duty it may be to 
review my judgment, that I arrived at this conclusion 
after an examination of all the circumstances of the 




The principal difficulty was to do justice among the 
trustees and their representatives. Nicholas Donnithomey 
if the trust-deed had not been executed, was first liable : 
but the consequence of that was no more than this, that 
Mrs. Walker would be bound to place the other trustees 
in her situation, that they might have every remedy 
which she might have had against him. The difficulty 
arises from this, that the trust-deed has made all the 
property of Donniihome a trust-fund for the creditors 
executing that deed, and has therefore taken the prpr 
perty out of the situation in which it would otherwise 
have stood as his real or personal assets. But if Mrs. 
Walker is compelled, in consequence of the execution 
of that deed, to pursue his assets under all the difficul- 
ties which that deed has interposed, by which, in the 
circumstances of the case, she is not bound to abide, 
the question is, whether she is not entitled to an equity 
of this kind, to say to the surviving trustees that the 
bond of Nicholas Donniihome is discharged as a bond, 
not by her act but by theirs, and to require them to 
replace the trust-fund, leaving them to seek justice 
through the means provided by this deed ? The Court 
is justified in holding, that they would have no reason 
to complain, having constantly stated that, holding the 
bond for Mrs. Walker^ they were consulting her inte- 
rests, and doing the best that could be done for her in 
executing the trust-deed. 




A dedaradon must be inserted in the decree, that all 
demands which the Plaintiff Mrs. Walker may possess 
under the trust-deed, or against the assets o( Nicholas 
Donnithomcy as assets, the surviving trustees will be 
entitled to enforce for their own benefit. 








Liability of 

l%e Lord Chancellor. 

Either the bill must be dismissed as agaiitst Harriij 
or some mode must be prorided of proceeding between 
the Defendants. 

The assets of Nicholas Donnithame must be consi- 
dered as assets, and as subjects of the trust-deed ; in 
thb suit, they cannot be treated as subjects of the triBl- 
deed, because the trustees are not before the Court; nor 
as assefe, because under the trust-deed, they are the sifb>> 
jects of that deed. It appears to me, that the ranedly t6 
which the Plaintiff Mrs. Walker is entitled, is to chatPgt 
die two Defendants personally, leaving them to proceed 
over for their indemnity; baft thai they cannot do ill 
this suit, {a) 


In this case the Defendant 
was a co-executor with James 
Mayhem in trust, and co-de- 
visee with him of certain 
lands, in trust, by sale to 
raise money to discharge a 
mortgage, and the lands 
mortgaged descended to the 
Plaintiff as heir. The mort- 
gage term was assigned after 
to Maykeo). Catchpole join- 
ed with Mayhett) in a con- 
veyance of the lands devised 
to them to sell, and in a re- 
ceipt for the purchase money, 
hot never received one penny 
for it. Maykeu) had enough 
in his hands to discharge the 
mortgage, but, however, as- 
signed it over for the princi- 

pal term, without notice of 
the trust for clearing it, and 
that assignee assigned to tet^ 
other with notice, Ma y i eim 
had appeared to the bill^ but 
never answered, nor could be 
found to be served with pro- 
cess, which was carried dli 
against him to a coramiflrioh 
of rebellion ; and it was said 
he was broke. He not being 
served to hear judgment, 
there could be no decree 
against him, but the process 
of contempt having beeii 
carried od to the end of tiie 
line, (less would not have 
done,) the other Defendant 
could not object for want of 
parties, for otherwise there 




Tlie decree ordered^'that the exceptions be oyer-ruled 

as insofScient, and that the sum of 5/« deposited with 

the register, &c. be paid to the Plaintiffi; and his 






might be a failure of justice. 
And now upon hearing the 

Loan Kexper decreed the 
Defendant Catchpole tx> make 
tati^action for the breach of 
trust in his co-trustee, run- 
ning away with the purchase 
money, diough objected that 
he joined in the sale merely 
£br conformity, and^ever in- 
termeddled fiurther. 

Sir J.JekyU cited a late 
case at the Rolls, where one 
who was trustee for a woman 
and her children did, with 
the woman's consent, assign 
his trust ;o another who was 
guilty of a breach of trust, 
and the first trustee decreed 
to make satisfaction, because 
trustees cannot divest them- 
selves of their trust at their 
pleasure. And another before 
Lord SomerSf where one trus- 
tee received the whole trust- 
raoney,and both were charged. 

Another part of the bill 
was against the assignee of 
the mortgage, to have the 
Plaintiff's inheritance dis- 
charged of it, Maykeio hav- 
ing had sufficient in his hands 
to pay It off while the mort- 
gage was in him, the mort- 

gagor not having joined in 
an assignment from May^ 
kew to </. S.f nor from </. S» 
to the Defendant ; and it 
was insisted, and agreed to 
by Vernon of the other side, 
that if any person will take 
an assignment of a mortgage 
in whidi the mortgagor doth 
not join, he must at his peril 
inquire what is due upon it, 
and if all or part of the prin- 
cipal hath been before paid 
off by the mortgagor, or dis- 
charged by perception of 
profits, the assignee, though 
he comes in without notice, 
cannot set it up again against 
the mortgagor ; and that for 
that reason, where the roort* 
gagor doth not join in the 
assignment, it is the constant 
course to take a covenant 
from the mortgagee, who 
assigns, that the mortgage 
is in force, and unsatis- 
fied, &c.; and that in this 
case Maykeuo having money R^tof at* 
eno ugh in his hands to satisfy ^S'^^ of 
the mortgage, and which by ^^S^ 
the trust was to be applied gagor. 
to that purpose, it ought to 
be considered as applied, as 
against the mortgagee. 
But Vernon insisted that 








Lordship declared, that the late Defendant William 
Symonds^ and Thomas Griffith^ vere proved to have com- 
mitted a breach of trust, iq respect of which they were 


an assignee was not obliged 
to take notice of such a col- 
lateral satisfaction ; and there 
having been some length of 
time, and several assign- 

Lord Keeper would not 
look upon the mortgage as 
satisfied; though it was ob- 
jected that though the first 
under Maykevo came in with- 
out notice, yet his assignee 
came in with notice. 

But Vernon replied, that if 
you would affect a purchaser 
at third or fourth hand with 

notice, you must affect every 
one under whom he claims, 
and it is not sufficient to prove 
notice in him only, or in the 
second or third ; for if it 
were, a purchaser without 
notice, might be brought into 
an impossibility of selling, by 
giving notice to those who 
intended to purchase of him. 
[From Mr. Cox's notes. — 
The date of this case is not 
stated ; but the names of the 
counsel ascertain the period 
within which it must have 

In Chancerv. 9th Dec. 1743. 

charged with 
breach of trust, 
for not putting 
out money at 
on the best 
security, ac- 
cording to the 
trust in adeed. 
Money lent on 
a promissory 
note is not 
put out on a 

The bill was brought to 
have a satisfaction for 800/. 
which had been deposited in 
the Defendant's hands, as a 
trustee, to be laid out on the 
best security that could be 
got, and which the Defendant 
had lent to one Mr. Ryder^ 
the Plaintiff's uncle, who af- 
terwards became bankrupt, on 
his promissory note. 

Lord Chancellor.— 
If this Defendant has acted 
fairly, it is a hard case, but 
the rules of this court must 
be observed ; and it is better 
that one man should suffer an 
inconvenience, than that the 
general rule should be broken; 
Two questions; first, whe- 
ther Defendant has been 
guilty of a breach of trust ? 

(a) 9 Eden, 149. n. ante. 




answanable personally for the trust-money in question ; 
and tfaaty under all the circumstances of the case, the 
Plaintiff Xocedoy Walker ought not to be con^klered as 





Second, whether there is 
any thing oh his part to ex- 
COK that breach of trust ; or 
to indemnify him as to the 
plamtiff or her son? 

As to the first, it is now 
pbun, that he is guilty of a 
breach of trust; andabreach 
of trust may arise not only 
from a fraud in the trustee, 
but firoin his gross negligence ; 
in both which cases he is 
liable to make satisfaction in 

. Here has been the grossest 
negligence. 80(tf. out on a 
mortgage, which this trustee 
was to receive, and place out 
at interest on the best secu* 
Tity that could be got for the 

neither placed it out on se- 
curity, nor at interest, but 
has laid it out on a bare pro- 
misery note, payable on de- 
mand, value received, with- 
out any interest. So there 
appears a direct breach of 
trust in two respects ; first, it 
was to have produced interest 
during the life of the husband 
and wife ; and in the next 
place, it was to have been on 
the best security that could 

A promissory note is evi- 
dence of a debt ; but it can- 
not be considered as a secu- 
rity for money ; for it should 
have been on some such se- 
curity as binds land, or some- 

same, with the approbation of thing, to be answerable for it. 

the husband, wife, and sur- 
vivor; afterwards there is a 
clause in the articles that de- 
fendant should not be liable 
to any bad debts, arising 
feom any insufficient security 
that should be so taken, nor 
fiir more than should come 
to his hands. 

- It is plain that 800/. came 
to his hands ; so that the next 
question is, whether he has 
pursued the trust? 'It is so 
tat from that, that he has 
Vol. III. 

Next as to the approbation 
of the husband or wife ; but 
I shall lay no weight on this, 
as to the breach of trust, for 
their power of approbation or 
consent was only to collect 
what kind of security, and if 
this had been a security, their 
consent might have been suf- 
ficient to have indemnified 

Another consideration is^ 
as to part of the 800/. there 
b a clause in the articles, that 
r if 

Trustee not 
protected by 
of the cethd 
que trutt^ not 
duly informed. 



18 IS. 



having relinquished or barred herself fiK)m the right 
to consider them as being so answerable for thie said 
breach of trusty or as having bound hersdf to acc^ 


if the husband should have a 
mind to make use of any of 
•the money in ti'adoy and 
should procure his wife's con* 
sent, the trustee should be 
indemnified for paying it to 

There was a deed prepared^ 
in pursuance of this power, 
for 300^, but never executed, 
nor was any part of the mo- 
ney paid, so that is entirely 
out of the case, as to the 
breach of trust. 

This trustee has taken up- 
on him to act in the trust, and 
has received the money. It 
is said it will be a very hard 
case on trustees. As to that, 
there would be some weight 
in it, if trustees were forced 
to apply to this court in the 
case of small sums. But that 
can hold only where there 
are but small deviations in 
the act of the trustees from 
their powers ; and that is not 
this case ; so that, supposing 
a breach of trust. 

The next consideration is, 
whether the trustee may be 
excused from making a satis- 
faction to the PlaintiiSs or the 

As to the in&nts, there is 

no pretence to say that the 
defendant shall be excused; 
for after the marriage it was 
not in the power of the hus* 
band or wibfe to do any thing 
to prejudice them* 

So all that remains is^ who* 
ther the Plaintiff has done any 
thing to defend the tmstee 
against being liable to. makd 
satisfaction to her during her 
life ? And as to that, I aih of 
opinion she has done nothing* 

The power of the wift 
must arise out of the artides, 
for after the marriage she had 
no power to prejudice her* 
self. The power is that ahe 
and her husband must give 
their consent to the placing 
out the money on security i 
Therefore she could not give 
her consent to the placing 
out the money on no seeunljr 

There is another point, 
where it is said that there 
may be a case in which a 
married woman maynot hanre 
power to act within the terms 
of a trust created before mar- 
riage, and yet if she draw in 
a trustee to do any 
against her benefit, 
so concerned, shall not afler<i 




rodi provision onIy» in respect of the trust^moneji 
as die or Wnu Sf/numds and Thomas GriffUh were or 
m^t be entitled to under the trusts of the inden- 



wards be admitted to take 
adrancage of it against the 
trustee; which I believe is so : 
iMt in all diese cases it must 
be where the persons so to be 
afceted might hare been full j 
infSMmed of die state of the 
ease. So that the question 
iS) whether the PlaindiF ap- 
pears to hare been full j in- 
terned of the state of die 

There is no evidence be** 
fiw me of any transaction 
dnt *ha was privy to, ante- 
cedent to the lending of the 
MHiey. I am spealdng as to 
her being fully informed. All 
the evidence arises after the 
BMNiey was lent. The evi- 
dence arising out of the re- 
cital of the deed of March, 
ITSTy amounts to nothing ; 
te it is a false recital ; recit- 
ing that the money had been 
paid by the mortgagees, and 
placed out on a security; and 
next iWwtipton swears that 
she saidy as the money was 
placed out at interest in her 
unde's hands, she would be 
content to lose it. This was 
a kind declaration ; but the 


question is, whether it shews 
that she was acquainted with 
the transaction ? It was fur- 
ther proved that she said the 
money would be getting 
something for her and her 
children ; whence it appears 
she mistook the matter, as 
the note did not carry in- 
terest. Another dechuation 
of hers was, that she was to 
have 5 per cent, for it ; but it 
was plain it would not bring 
her any thing, for no interest 
could be recovered but from 
the time of making the de- 

Bo that it appears she 
was imposed on, thinking it 
was placed out at interest on 

When the Defendant's 
part of the case comes to be 
considered, I am far from 
charging him with a fraud ; 
but it would be dangerous. 
In genera], that a trustee 
should be excused for placing 
out money in the hands of 
persons with whom he has 
great dealings in trade, where 
that same money may pos- 
sibly come round to his own 
2 hands, 





lures of lease and release of the 24fth and 25th days 

of Mcachj 17979 but that, under such circumstanced^ 

either the Plaintiff ifOt^(/ay Walker, under the true con- 

hands, to pay his own debt, 
in method of negociation. I 
do not impute this to the 
Defendant ; but in general it 
might be a dangerous thing : 
therefore I cannot by. any 
means allow his excuise. 

Decree the Defendant to 
make satisfaction for the prin- 
cipal sum of 80(tf. and interest, 
after the rate of 4 per cenU^ 
from the death of the Plbiti* 
tiff's husband. 

I cannot, for the sake of 
the precedent, make any 
other decree in this case. 

There was evidence that 
Mr. Ryder^ into whose hands 
the money was placed, was 
at ' that time in very good 

circumstances, to the ap- 
pearance of the world; that 
the Defendant was but in 
slender circumstances, and 
that the Plaintiff and her 
husband were glad to have 
it in Mr. Ryder^s hands, 
thinking it a better security; 
and it further appeared, that 
the Phnntiff and her husband 
were needy, and wanted it to 
be at interest, and that, the 
Defendant had endeavoured 
to lay it out in a purchase of 
lands, but the Plaintiff's bus* 
band did not like the put* 

Reg. Lib. B. niS.fol.l5^ 
From Mr. Short. — Lord Col^ 
Chester's MSiS. 

In Chanc£AY. 1st May^ 1788, 


An executor 
lending money 
ot* his testator, 
upon bond, 
shall be per- 
sonally an- 

Exception to the Master s 
regort,that the sum of 1000/., 
whidi had been lent by the 
executor, on bond, out of the 
assets in his hands, and the 

security for which had failed^ 
had not been allowed him by 
the Master in his accounts. 

Testator died in the isknid 
of St. Christopher^ where he 

(fl) 2 Cox, 24. 




saruction of the said indentures, remained entided to 
cbaige fViUiam S^/monds and TTumtas GriffUh p^raon- 
ally^or, if she was not so entitled under such oon-i 




left a very large personal 
estate, consisting of money 
lent on mortgages, and on 
bonds, leaving Plaintiffs, the 
infimtSy his residuary lega- 

. It had been usual with the 
testator to lend very large 
sums of money on personal 
•ecurities in the island, and 
the Defendant, the executor, 
who resided at ;S^. ChrUto- 
phcrSf continued the money 
upon the same securides, and 
as he received in the same, 
lent it again upon bonds, at 
U> per cent*, the lawful in- 
terest of the island ; he by 
this meaos benefited the es- 
Ute about 4 or 5000/. The 
1000/. in question was lent 
by the executor to a person 
of whose solvency no doubt 
could be entertained at the 
time; afterwards, however, he 

The executor's conduct 
bad been exceedingly ho- 
nourable in every respect, 
and all the parties in the 
cause, who. were adults, con- 
sented to his being discharged 
in his account of thb 1000/. ; 
and the children and resi- 
duary legatees of the tes- 

tator, who were infants, did- 
not oppose it. 

Hardinge and Graham ar-^ 
gued for the excepdqn, that 
an executor might be con-^ 
sidered in two capacides,* 
1st. merely aa an executor 
paying debts and distributing 
the assets ; and^ ddly, as hav- 
ing money standing in his. 
name for a considerable time 
to satisfy legacies that do 
not immediately arise, in 
which capacity he may more: 
properly be considered as a 
trustee than as an executor ; 
that when acting in the former 
capacity, the executor was 
entitled, for his own use, to 
any temporary profits which 
might be made of the money 
in his hands, and therefore 
was accountable for any loss 
which might happen. This 
is the opinion of Lord Hard^ 
xioieke, in Adams y. Gale,, 
2 Atk, 106., whose words are ; 
*' An executor may make use 
of money which is perpetu- 
ally coming in by asse.ta of 
the testator, and turn it to 
his own advantage ; and it ia 
not improper for an executor, 
to do it upon his own ac- 
count, where he is a respect- 
3 able 

swerable, if 
prove defect- 
ive, thoogh 
in the habit of 
lending money 
on sudi secu- 
rity; and shall 
not be indeni^ 
nified from the 
profits made 
by other trans* 
acdons of die 
same nature. 







stniction, she was not bound to take the benefit of 
such provisions^ and relinquish her demands against 
them personally on account of such breach of trust. 


able man and ready to an- 
swer legacies and debts when 
called upon." And the same 
doctrine was laid down in 
Brcmfidfv. Wythertejf, Prtc. 
Chan. 505.> where it is said 
that if the executor is solvent, 
he shall have the profits made 
of the money to his benefit, 
because he ran the risk; 
secus of an executor insolvent 
at the time, because he runs 
no risk. When acting in the 
second capacity, the execu- 
tor is to be considered as a 
trustee, and as such is entitled 
to the favour of the court, 
where the strict rule of law 
would be against him ; in this 
capacity he is entitled to no 
profits made of the assets, 
and therefore ought not to 
be personally liable for the 
loss. If a trustee (and the 
executor quoad hoc is a 
trustee) keeps the trust pro- 
perty as he would keep his 
own, or as the court has evi- 
dence the person for whom 
he is trustee would have kept 
it, he shall be indemnified. 
Motley V. Morley^ 2 Chan. 
Ca.2. t Jones v. Lewis, 2 Ves. 
240. In the present case the 
executor not only employed 

the money as he would have 
employed it had it been his 
own, but he employed it in a 
manner the most beneficial 
that was possible for the re 
siduary legatees, the ittfimts, 
and by which he has gained 
for them a very considerable 
sum. He was obliged to lend 
the money upon personal se- 
curity, or he must have trans- 
mitted it to England, where 
it would have produced much 
less, upon any securities, be- 
cause the island afforded no 
other securities but personal 
ones; the executor, too, in 
this case, employed the mo* 
ney in the very same way in 
which the testator had him- 
self employed it, and as he 
certainly would have em- 
ployed it, had he been living. 
In Prec. Chan. 40., Oibbs ▼. 
Herring, testator employed 
a person to place out money 
for him at interest, and died* 
leaving a sum in his hands to 
be so laid out ; the executor 
desires him to place it out at 
interest; he does, and the 
security fails; the executor 
was held to be liable, tfar- 
den V. Parsons, before Lord 
Northington {a), was a case 

(a) Cited firom a MS. note of Mr. Siaifulei/. 1 Eden, 145. 
ante, p. 62, 63. - 





And Us Lordship declared^ that WiUiam Skfmonds and 
Tkomas Grifflihj having made diemaelvesy by having 
exeoated the said indenture of release^ and other aetiy 



in point. There the executor 
lent money iqMm the note of 
of a man of whose solvency 
there was not at the time the 
least reason to doubt; after- 
wards he fSoQedy and Lord 
Norihington held that the 
executor should not be lia- 
ble, and said it was sufficient 
if he dealt with the property 
as he did with his own ; but 
that if there had been crcusa 
ne^igentia, that indeed would 
have been diffisrent, and would 
have amounted to a breach 
of trust ; and the other cases 
died were Churchill v. i/oi- 
Kw, 1 P. W. 241., 5fl/*. 218., 
and Cox v. lyAranda^ Vin. 

Lord LoughbofWigh.'^It is 
quite a settled point that an 
infant's money cannot be laid 
out on personal security (a) ; 
and the Court will never give 
their sanction to that when 
done, which at the time they 
would not have suffered to 
have been done. In some of 
the reports a confused notion 
prevails that an executor or 
trustee is not answerable for 
the loss, where he would be 
answerable for the profits, 
but I take that to be quite 

erroneous, and that it haa 
been long established in this 
court, that in these cases 
every thing shall be taken 
against the executor ; if any 
profits are made, he must ac- 
count for them ; if any loss 
happens, he must bear it; and 
it does not alter the case that 
the executor has improved 
the estate by lending money 
on personal security ; for the 
Court will not consider the 
whole account of his dealings 
together, but must consider 
every single transaction by 
itself. The executor has be* 
haved very honourably; and 
I do not doubt that when the 
infants come of age, they wilf 
think themselves bound in 
honour to make up this loss 
to him, but the Court cannot 
do it. The distinction taken 
Prec* Chan. 505., is a very ab- 
surd one, and I thought had 
been long exploded. The 
exception must be over-ruled. 
Hardinge. — Does your 
Lordship decide upon the 
ground of its being infants' 
money ? 

Lord Loughborough. — Up- 
on the ground of its being 
trust money. The circum- 

(a) Terrif v. Terry , Gild. £q. Rep. 10. 

G 4 






creditors of the Defendant Isaac Harris^ as in the sttd 
hideiitiire of release is mentioned, and the Plaintiff jLoww 
dajf Walker not having been bonnd to accept the boiefit 
of their. demands, as such creditors, the Plaintiffi were 
entided to have such payment made out o^ and sudk- 
account directed, as thereinafter was ordered and di^ 
rected, as to, the assets of William Sk/monds and Tko^ 
mas Griffith respectively, without compiling an «o* 
count to be taken of the assets oS Nicholas Dennithome^ 
deceased, which appear to be included in the trusts <^ 
the said indenture of release^ or enforcing in the «aid 
suit any demand which by the Plainti£fs, or on their, 
behalf, could be enforced under the trusts of that inden-* 
ture ; but with such liberty reserved to the respective 
representatives of William Synumds and Thomas Qrif" 
Jith as thereinafter provided. And it was ordered that it 
be referred to the Master to take an account of what rie<* 
mained due to the Plaintifis for principal and interest 
of the trust-money in question; and that the Defendaftita 
William Symonds and Thomas Cooke j out of the assets of 
the late Defendant WiUiam Symonds, deceased, afad 
the Defendant John Lilfy^ out of the assets 6( Thomas 

Griffithj pay what the Master should find to remain due 
for principal and interest on taking the said account, into 
the bank, with the privity of the accountant-general, 

stance of their being infants 
only affects the case, in as 
much as it is impossible there 
can be any circumstances of 
conduct in them which can 
authorize the executory as 
there might have been had 
they been adults. 

Hotham B.— Anotlier rea* 
son why the Court always 

disapproves of lending money 
on personal security is, that 
it is a species of gaming, by 
which great interest is gained, 
and which the Court will not 

The exception over-ruled. 

From Mr. Romilfy.'-^Lord 
Cotckeders MSS. 



And his I^ordship declared, that. In case after having 
satisfied what they, were liable to -pay under the direo*. 
tions therein before contained, the Defendants William 
Sjfmonds and Thanuis Cooke and John IMly^ as such 
representatives respectively as aforesaid, or any re- 
presentative ciSymonds or Griffith respectively, should 
be advised to make any claim or demand against the 
assets of Nicholas Donnithomey deceased, or against the 
trust-premises or the trustees, in the said indenture of 
rdease contained and named, or against the Defendant 
baac Harrisj which it should be necessary, or they 
thoold be advised, to make in the names of the Plaintiffi, 
or any of them, they were to be at liber^ to use the 
names of the Plamti&, or any of them, in any snch pro- 
ceedings, they giving to the Plaintifi a proper and su& 
fident indemni^ agsunst the costs and expenses of all 
such proceedings. And it was ordered, that such in- 
demnity be settled by the Master, if the parties differ 
about the same. And it was ordered that it be referred 
to the Master to tax.the costs of the Plaintifis, and that 
soch costs, when taxed, be paid by the Defendants, 
the executors, out of the assets of their respective testators. 


to be there, placed to die credit of the cause, ''the 1S18. 
Ptaintiff's aooount;*? subject to the further order of the 
Court; aod die Pkiatiffi were to be at liberty to make 
such application to the Court touching the same as 
diqr should be. advised. And, in case the Defendants 
VWiam Skfmorub aaad Thomas. Cooie should not admit 
asKtsof FFUliamS^^mondSfdeoeaaeif sufficient for .die 
purpose afofeiaid, then they were Ito come to an a^xount 
befiro the JA^e^ for his personal estate come to their 
orr^tfajsr of tb^ hands,* &c. ; and unless the Defendant 
JMm XJlfyf should admit assets of T^mas GrfffUhSf it 
WW orderedf that the Master do take, an account of his. 
personal estate^ come to the hands of John LSfyj hia 
executm*, &c. 




And it rWss ordened that the Plahitifi' InU, as agBinie 
the Defendant Harris^ be dismifised, withoat coits be* 
twiasn die Plaintifi and him f bat such diimiiHMil waa to 
be without prgudioe to any such proceedings as afiBK»» 
said for the benefit of the tepresentatives of the other 
deceased trosteess either in their own names, or diosd of 
tbePhdnti£E^ or any of them, thereafter to be taken, m» 
lative to the matters in question. And, for die bett^ 
taking of the said accounts, the pardes were to produce 
bdKnre die Master, upon oath, all books, Stc And the 
Master was to be at liberty to make a separtflte vqiort 
or scfianite reports^ of any of the matters aforesaid.' 
And his Lordship reserved the consideration of all 
fiirdier direcdcms, until after the Master should haye 
made his report ; and any of the parties were to be at 
liberty to apply to die Court as there should be oeca- 
sioiL'* Reg. Lib. B. IS17. foL 1977. 

Jufy 13. 16. 

under an or- 
der of refer- 
ence in a 
cauie» having 
declined to 
proceed, the 
suit may be 
prosecuted as 
if no reference 
had been 


T^Y an order of 1st of Marcky 1817, on consent, aU 
matters in difference between the parties were referred 
to the award of three arbitrators, and it was ordered that 
no bill should be filed, nor any action commenced by 
either of the parties against the other touching any of 
the matters refisrred, except for the purpose of en- 
forcings if necessary, the award to be made ; and any of 
the parties were to be at liberty to apply to the Court 
as they should be advised. 

The arbitrators having declined proceeding^ and the 
Court baviiig refused to order them to proceed (a), the 

(a) Ante, v.L p. 40. 



VUmtUim the 4di of Mn^ 1916, obttiaad $l rcferanoe 18IS. 
to llieMMCer to lake oertftin accountf, end on the Mtfi 
of «Ami^ on Older os die Defendant CkdUns^ to pffodnoe 
befim the Meater ail bookiy &c« in hie poasesnon iebil>* 
iog to the ecoounts^ Oritfni now moved to discharge the 
leHor otder witk ootts. 

The SoUcUor Qeneral and Mx.BeameSj for the motion. 

The order of reftranoe is a virtual diamisaion of the 
hill; although the arbitiators decline to make an awaid^ 
the cause ia no loi^^ in courtf The t^rma of the ra- 
faeooe a:re abaolutey not in the usual form, omditional 
en the event of an award made* The concluding 
itaervation of liberty to apply^ is a clause of CQuia^ 
and may re&r to at^lications for compelling the arbi^ 
tratora to proceed* or for enforcing their award. Wjoodf-^ 
bridge Y. HiUm {a\ Dkk v. MOligan {f>), PrUey. WU- 
Uams. {c) 

It is truei that after the first order of reference was 
anffiered to expire^ a second order of reference was 
made^ with the consent of the Defendant Collins j but 
after the Court had transferred its jurisdiction to the 
arbitrators, no consent could restore it. PonmaUy, 
Khtg. {(J) Had the reference not failed, it is not pre- 
tended that the parties could have proceeded here ; the 
forum of the question was changed. 

Sir Samuel Romilfyf Mr. Hartf and Mr. James Ste^ 
fheuj against the motion. 

(a) 1 Bri). C. C. S98. 8 Dick. (c) 3 Bro, C C. 165. I Fes. 

S40. JUD. 565. 

(6)4 Bro. C. C. 117. 536. ((Q 6 fVf . 10 
3 Veu juo. 83. 



181 a 



' The dicta ched in siipport of this novd niotibn» firom 
CBies in which an. award was actually made^ hawf nolafH 
plication to a case in which the reference to arbitnttkiD 
has become ineffictuid* The Court divests its^ of 
jttriadicdon only when the question caax be decided by 
the arbitrators. The reservation of liberty to apply 
supposes a cause depending. 

The Lord Chancellor. 

I take it to be undeniable^ notwithstanding what was 
said in Dick v. Mittiganj that according to all the oM 
cases, an award was sutigect to exceptions; the nevr 
cases have restored the subject to a rule of coranoii 
senses that if on a reference of all matters in dispute die 
arbitrators proceed, there is an end of the matter : but 
the question is, whether, if the arbitrators do not pro*^ 
ceed, if^ for example, one dies, the cause is so. out of 
court, that the parties cannot apply to prosecute it ? I 
always understood that the reserved liber^ to apply ex* 
tended both ways ; authorizing, if an award was mad^ 
proceedii^ on the award ; and if the arbitrators did not 
proceed, an application as if the reference had not beea 

July 16 The Lord Chancellor. 

The motion must be refiised, and the cause 
ceed as if no reference had been made. 

rill prb- 

His Lordship doth not think fit to make any ord^ 
upon the motion, but doth order, ^ that the said Defend- 
ant do pay th^ c6sts of this application/ R^. Lib. A. 
1817, fol. ue^.r 



ROBERT MAYNE, - * Pbintiffi 

Jufy 14. 



•A MOTION was made oii behalf of the Defendant A derk ia 
'^ fFfl^, that Mr. j;2&wfc^, one of the sworn cleifa, ^Sh^ 
nigbtbe ordered forthwith either to produce to the six- ^ oonttnue 
derk the oflSce-Gopyofthe bill alleged by him tohave been ofacauteiin- 
BHMte in Bnsier term, 1816, m ordor Uiat the same might ^[i^!,JS5* 
bemarked, or that he might be ordered forthwith to deli- to produce aa 
ter Qt^ to the said six-clerk the original record of the ^^tto",)^ 
noiaiied bQl ffled in this catise ; and that Mr. J. G. S. narked. 
m^ht be at liberty to act as the clerk in court for 
WaUf in the ffatnre conduct of the cause, and to' file ^ 
Ilia further answer to the exceptions, and also to the 
aoMnded biD. • * 


The affidavit of ffhit stated, that having no personal 
interest in the cause, and being a par^ merely as the 
i^gent or consignee of Henokey^ he had, at Hawkers re- 
qaest, allowed his answer to be prepared, and his de- 
fimce to be conducted, by J. R^ the friend and soli- 
citor of Hawkey, under an assurance that he should not 
be reapcmsible for any expense incurred; that those 
terms were understood by J. A, who admitted that he 
was employed by Hawkey alone, and that Watt was not 
ftsponaible to him ; that in Hoy, J. R. informed Watt\ 
diat in consequence- of the death of Hawkey, hie could 
aot continue so to conduct Watfs defence, but that 
Wait must supply money for carrying on the suit; that 
Wait having- then employed his own solicitor R. 6. B^ 
J. IL refused to part with any papers, or give any in- 
formation until his bill was paid ; and in Jurie delivered 
a bill amounting to ?S/. 



1818. The affidavit of A G. A, filed in sopport oTtlie no- 

dMf aCatedy that having been employed by the Defeni^ 
ant JVati to put in his answer to the exoeptiou aUonned 
to his fenner answer, and also his answer to the ameod* 
ed billy die deponent applied to J. 22. for the reqpBtfle 
informationt who declined to give any infinrmatioiif or to 
part with any papers^ unless he was paid his lull of costs 
for what he had before done ; that an attachment hftviog 
issued against JVatt for not putting in his answer^ the 
deponent prevailed upon the Plaintiff's solicitor to allow 
time for the answer to be prepared^ and to fiumish the 
d^x>nent with a copy of the amended bill, and of the 
exceptions; that he afterwards prepared the fivrlher 
answer of Wattf which was sworn on the 22d of M^ 
laatf and also paid the costs of the attachment and of 
the exceptions^ to the Plaintiff's clerk in court; .thai 
some considerable time after the answer was swam^ be was 
informed by the agent for Mr. J. G. &, the Deponents 
clerk in court, that the six-clerk bad refused to file. the 
same^ because the office-copy of the amended bill bad 
not been marked or paid for^ although in the bill .gf 
costs lately delivered to fVaU by J. A the sum of 
7L 19^, lOd. was charged fiy an office copy of the amend" 
ed lull in Easier term, 1816 ; that be afterwards attend^- 
ed with the agent of Mr. J. G.S^at J.BJ» seat in the Sixr 
Clerks' office, and requested Jl A to get the office*copy 
(which he aUe^ged had been made) maiked by the six- 
derl^ in order that the answer might be filed; and. Um 
dqponent subsequently offbred to pay for the oflSce-oopy, 
if J0 B. would produce and get the same markedf whi^ 
he positively refused to do; that deponent bad ifeoii 
informed by the agent of Mr. J. G. S.9 which infonpatuMi 
he believed to be true, that <7. JS. detained the origin^ 
record of the amended bill, allying that he had a lien 
thereon for the amount of a Ull of costs which he claim- 
ed to be due to him firom Watt. 

20 Sir 


9a Snumml Bomilfyf finr tbe motioii. 

Befere a Defeodant is allowed to file an answer, lie 
■MsC take an dfioe-copy of the bill ; and tlie six-clerk 
has no means of knowing whether the copy produced 
has been takc^ except by the mark. 


IS! 8. 

Mr« Hart^ against the motion. 

The Lonn Chancellor. 

My opinion is, that Mr. J. Eadd^ must do what 
dils mothm Quires* If a clerk in court, or sotldtor, 
having engaged in the conduct of a caose, think$ pn^)er 
afterwards to refuse to proceed without pajrment, he 
cannot stop the cause; he may reasonably decline to 
act without payment, and if the dient omits to pay, he 
cannot be compeUed to part with papers ; but he must 
lot dday the progress of the suit. The refusal of the 
laiicitof or dark in court to proceed authorises the 
dient to employ another solicitor or cleik in court ; and 
di6ugh the former solicitor or clerk in court cannot be 
ooospdled to part with papers, he must produce them 
ibr aU purposes in the cause, (a) 

^ Hit Lordship doth order, Hiat «f. H., one of the 
sworn derks of this court, do forthwith produce to the 
siz-derk the office-copy of the bill all^;ed by him to 
hare been made in this cause in Easter term, 1816, in 
Older that the same may be marked ; and it is ordered 
diat cX 6» & be at liberty to act as tbe derk in court 
% the Defendant J. Watty in the future conduct of this 

AugHti 7 

(ft) See Commerelir. Poynton, ante, toI. i. p. 1. 





cause, and to file his fiirtber answer to the exoeptioiis 
allowed in this cause, and also to the said amended bill.'' 

B^.Lib. B. 1817. fi>l.i556. (a) 

(a) On inquiry at the office 
of the Six Clerks, the editor 
has been favoured with the 
following information of the 
course of proceeding. An office- 
copy of the bill being taken by 
theDefendant's clerk in court, 
is produced to the Defendant's 
six-clerky for the purpose of 
receiving his signature (a), 
and being then marked with 
the official stamp, becomes 
an authority for the clerk in 
couft taking the copy, to file 

the answer of the Defendant 
for whom the copy was taken- 
A peer defendant being 
served with a copy of the 
bill, is allowed to file an an- 
swer without taking another 

The following note of a 
case (shortly reported, 2 Ami. 
4*89.) on the jurisdiction of 
courts over their officen, is 
extracted from Lord Col^ 
Chester % MSS. 

ExcHBQUBR Trinity Term^ i794<. 

Power of the 
Court of Ex- 
chequer to re- 
move fiom 
the Remem- 
who have not 
served a clerk- 

In. the matter c£ Windm 
and Richy side clerks in the 
King's Remembrancer's of- 
fice, Richards moved, on be- 
half of Messrs. JVindus and 
Riehf that die name of John 
George Donne might be 
erased from the roll kept in 
the office, nrhereby the se- 
niority of the clerks in court 
is ascertained. 

This motion was supported 
by affidavits, that John George 
Donne was sirticled to David 
Burton Fou>ler, Esq. prior to 

Ma^f 17S7f one of the swofnr 
clerks in the said offiieOf bunt 
had never attended there titl 
2Sd May, 17d4, although his 
name bad been entered upon 
the roll at the time of his be- 
ing articled, and still - ri^' 
mained there; that Windsu 
was articled to another, of "the 
sworn clerks in May^ ^7^1* 
and Rich to another in Afo- 
vember, 1787, from which re- 
spective times they had re- 
gularly attended and siervidx 
that the said «/• (7. Donnt 

(a) Orders in Chancery, ed. Beames, 1S6. Aitonu^y General v. 
MUward, 1 Cox, 457. 




was, during the whole, or the to the contrary was known or 
greatest part of the said time, ever intimated to David Bur* 
at school, and at the time of Um Fovoler or Donne* 


his ryune being entered on 
the roll, was only of the age 
of nine years, being an age 
much earlier than usual for 
bringing clerks into the of- 

Two precedents were cited 
in the course of the argument 
of names being erased from 
the roll; one of Mr. Ord^ 
whose name had been post- 
poned for non-attendance, by 

Besides the impropriety of the authority of the Deputy 

such clerkship being allowed Remembrancer, and without 

to stand good, it was insisted controversy; and another of 

also that such a priority in the Mr. Woody whose name had 

roll, might and would pro- been erased, he having left 

bably prejudice Windus and the office for many years, and 

lUch in the office at some fu- 
ture period. 

Abbett contrk, shewed for 
cause, that by other affidaviu 
it appeared, that Windus and 
Mich knew, during the whole 
time, that the name of Donne 
atood before theirs, although 
thej forbore for seven years 
to complain of it ; that at any 
time, if required, Donne was 
ready and would have left 
school to give personal ser- 
^'ce in the office ; that during 
the whole time he transcribed 
the king's process (which is 
part of the articled clerks* 
duty), by an avowed agent in 
the office, with the express 
knowledge and acquiescence 
of Windus and Rich^ and 
thai the said Dawd Burton 
Fonder had dispensed with 
his service for the purpose 
of promoting his education ; 
snd that no rule pr precedent 

Vol. III. H 

returned to it at a great in- 
terval of time. 

The Court was clearly of 
opinion, first, that it had ju- 
risdiction to interfere in re- 
gulating the duties and con- 
duct of all these clerks, al- 
though appointed by the* 
King's Remembrancer, and 
promoted at his discration; 
secondly, that no articled 
clerk should have his name on 
the roll who did not bona Jide 
serve under his indentures. 

And, accordingly, the Court 
ordered the name of /. G.< 
Donne (not to be postponed, 
but) to be wholly erased fVom 
the rolls. See Dorrington\ 
case, Hardr. 1 30. and the me- 
morandum relative to the of- 
fices of chief prothonotary of 
the Common Pleas, and coro- 
ner and attorney of the King's 
Bench. . Dyer, 150 b. 


July 25. Expa^ie BIRCH in the Matter of ADD Y, a Lunatic 

^1?^L^^ T^HIS petition prayed a sale of some copyhold lands 

a lunatic are the. property of the luo^ic^ under the statute, 

not authorised ao r* a i^^f 
liyrtat43G.3. 43 G«^. 8. c, 75. 


Mr. Barber^ in support of the petition, insisted, that 
though freehold and leasehold estates only are mentioned 
in the clause authorising a sale, yet the subsequent ex- 
press authority to make surrender of the copyhold, 
estates of lunatics, denotes the intention of the legisla- 
ture to include them. 

The Lord Chancellor. 

Tlie power of sale is confined in terms to freehold and 
leasehold estates; copyholds are not mentioned as sub*, 
jects of sale. I have no authority to make such an. 

Petition refused, (a) - 

(a) The slat. 59 Geo, 5. c.80. estates hdd by ancieat demesa». 
s. 2. extends the power of sale to or copy of court roll. 


TheBlatta:'! A MOTION w^8 made, that the Defendants might^^ 

SJ^rtlrf^H ^»^«» ft>ur days, deposit in the Master's office aU.. 

notion for an books, &c. in their custody or power relative to the ao-* 
fbrprodaction counts directed to be taken; or in default, that the 
^ bmn^ serjeant-at-arms might apprehend them. 


dateontheday 1^. 

ofthetBotioa. ^^^* 


Mr. Heaid^ in support of .the motioii, relied' on the H^lV. 
Master's certtfioata^ that the Defaidant bad not pro- ^!^^ 
dnoed the books at the time fixed by a fdrmer oikler. t. , 

7%? Lord Chancellor inquired the dkte of thi^ 
certificate; and being informed that it bore date on dile 
92d Jufy^ refiised the order ; observii^ th^ a certificate 
to support a motion for commitment must bear date on 
the day of the motion ; otherwise non constat^ that the 
party has not, since the certificate and before the motion^ 
obeyed, and protected himself from the ordbr^ (a) 

(a) S6 CarleioH T. Simik^ 14 Va. 180. 

J^Jjf^O. SI. 


TN September, 1809, certain collieries ai'Dunningkmi Ti^hue^- 

Bast and West Bnmton, FamUm, Widtoper^ Morley ing agreed to* 

/KB, and Wheetslade, in the county of Northumberland, gj^^^f^/ 

were demised for twenty-one years to Richard Cof^ DeUrfabouring 

rington and others, who, in February y 1810, assigned cencetomea 

their interest therein to John de Ponihieu. right of way 

enjoyed by the 
former, and 

The prtoiises called Fawdon, were situate about fire ^^^^?^ 
miles and a hdf from the river Tyne ; the intarmediale lieiy. badng 
grounds proceeding in a direction from Fawdon to the JJ^^^ j 
river, were respectively called Coxlodge, Gosforth, Jjong> lees the tame 
Bentm, Benton, and WaXUend ; and before the date of ffi^^Sm 

the assignment, William Chapman and his partners, of year^and 

aiierwards by 

from the first lessees become possessed of the first coHieiy, and the ri^t of wan 

aq injuncdon was granted to riestrain him from remoymg the ma t e ri ally and 

4Mbl)oySn|{*tTO ^ntf, 

W^ carrying 


^.mS- ^ carrying on the business of coal workers under the firm 
Niwiuiai ^^ ^^ owners or lessees of Kenton and Coxlodge colli- 
*• eries, had sunk a coal pit, called the Jubilee pit, in the 

Coxlodge grounds, at the distance of about S50 yards 
from the Fawdon grounds, in a direction towards the 
2^11^, and by virtue of way^leaves^ or leases, from the 
owners of the intermediate grounds before mentioned, 
had constructed a waggon- way from the Jubilee pit to 
the JSfne. 


By an indenture of the SOth o( Aprils 1811, b^tweeii 
«7. BraruUingf owner of Coxlodge^ Gosfbrth^ and hong 
Benton grounds, and de PonthieUj reciting that Brand- 
Ung was seised and possessed of divers lands, situate at 
Coxlodge, Gosforth, and Lor^ Benton, and that the lessees 
and owners of Kenton and Coxlodge colleries were then 
in the occupation of a certain waggon-way over part of 
the lands, as lessees under him. Brandling for himself, 
his heirs, executors, and administrators, covenanted 
with de Ponthieuj his executors, administrators,' and 
assigns, that it should be lawful for de Ponthieu, his ex- 
ecutors, &c. at any time within twenty-one years from 
the 22d o{ November then last, to make and place a 
waggon-way and side-way from the lands and grounds 
of Fawdon through the grounds of Coxlodge, to com- 
municate with the waggon-way of the lessees and owners 
of Kenton and Coxlodge collieries at or near the Jubilee 
pit, according to a line laid down in a plan indorsed on 
the indenture, and by no other line, for the purpose of 
conveying the coals to be won and wrought out of the 
grounds of Fawdon, and out of a specified part of the 
grounds of West Brunton, and also of conveying timber, 
iron, &C. and all other things, to and from the colliery 
9X Fawdon I and that it should be lawful iot de Ponthieu, 
his executors, &c« during the term of twenty-one years, ' 
to have fiill and firee liberty of ingrtss, igress, regress, 



tray-leave^ and passage, along the waggon-way of the 1§MI« 
lessees or owners of Kenton and Caxlodge collieries, 
through the grounds of Brandling at Coxlodge, Qosfbrthj 
and Lohg BenUm^ for the purpose of leading and con- 
veying all coal to be wrought and won out of the 
grounds of Fwaodon and out of the specified grounds 
of West Brunicny and all timber, iron, &c., and all 
other things necessary for carrying on the ccdlieries; 
and also that it should be lawful for de Ponthieu^ 
his executors, &c. during the term of twenty-one years,' 
to make and lay a waggon-way and side-way from the 
grounds of Fanodon through the grounds of Caxlodge^ 
and there to communicate with the first-mentioned wag- 
gon-way, according to the line also laid down upon a 
plan indorsed on the indenture, for the purpose of con- 
veying the coal to be won and wrought out of the 
grounds of East Bruntony Dimnington^ and Morley HUl^ 
West Wideopeny and a specified part of West Brunton^ 
and also for the purpose of conveying timber, iron, &c. 
to and from the last-mentioned collieries; and that 
it should be lawful for de Ponthieu^ his executors, &c. 
during the term of twen^-one years, to have full and free 
liber^ of ingress, 8tc. along the waggon-way intended 
to be laid as aforesaid, and also along the present wag- 
gon-way of the owners or lessees of Kenton and Coxlodge 
collieries^ through the said grounds of Brandlingf at 
Coxlodge, Gosforthj and Long Benton, for the purpose 
of leading and conveying the coal to be wrought and 
won out of the grounds at East Brunton, Dunnington^ 
Morley HiUy West Wideopen, and the specified part of 
West Brunton, and also all timber, iron, &c. and all other 
things necessary for carrying on the collieries. 

The indenture contained a covenant by de Ponthieu 
to pay a fixed rent for the several way-leaves, and a 
imther contingent rent, proportioned to the quantity of 

Us coal 


I91lf. ooal ooiiTiqr^. And it was agreed, that in case de 
^ ^^j;^^ Ponthiah his exiecutors, &c. should be desirous to quit 
V, the VAy«l)BaYe6 at the end of any one year of the 

"m^IUVf^ntf* ^^jfm ^ t3¥enty-one years, .and should give to Brandlings 
his heirs or 93^gns, twelve months previous notice in 
writing, he or they should be at liberty to quit the wag- 
gon-ways at the expiration of such notice; from which 
time the respective rents, and the term of twenty-one 
years should cease, on the ground over which the same 
passed being restored to a proper state of cultivation : 
and it was agreed, that a regular lease should be en- 
tered into of the way-leaves, in which should be inserted 
all covenants, clauses, and agreements in the indenture 
contained, and all other usual covenants and agreement^^ 
contained in colliery way-leave leases, and thereby not 
provided for, which were consistent with the terms and 
stipulations therein contained* 

By an indenture of the 10th of <7f^, 1811, Job Btd^ 
man granted to de PotUhieu^ his executors, &c. for twen-- 
ty^on^ years from the 1st of Men/ then last, right of 
passage and way-leave along the waggon-way and side* 
way laid by the owners or lessees of* Kenton and Cor- 
lodge collieries, upon the grounds, of Bulman^ within the 
townships and precincts of Coxlodge, for the purpose of 
conveying coal and other things to the J)/fie from the 
premises comprised in the indenture of Sepiember, 1809 ; 
and also power, in case the owners and lessees of Kenton 
and Coxlodge ccJlieries should determine their interest in 
the way, to lay another waggon and side-way on the 
same scite. 

By an indenture of the 15th of Jtdy, 1811, WiUiam 
Brtmn made a like grant to de Ponthieu of a right of 
way4eave along the way enjoyed by the owners and les- 
sees ii^Ka^an and Cod^dge oolUepes, through his lands 


CASES IN CHANdfiR^. *i^ 

in the tdtihsships of Long Benton arid Little Benton^ for 
twenty-oiie years from ttte 12th oil May last I^JeWma^ch 

By tiro other indentures of the 22d d(3vne^ lis 11, 
and the ^Sth of September^ 1812, C. tV. Brigge and the 
Dean and ChapteV of ihirkam respectively granted to 
de Ponthieu a way-leave, and power to make and use a 
waggon-i^ky, &c* from the premises comprised in the 
indenture of September ^ 1869, to Ae Tyne^ through theit 
respectivfe groudds in Long Benton and WaUsend^ for 
twenty-dhfe years. 

In Jimej 1811, Mcssi^. 2&M?ttJs7ey, TindeJl^ and Co.y 
who had become the bwners or lesslees of Kenton and 
Coxlodge collieries, agreed to grant to de Pdnthieu way- 
leave over the waggon-way made by JV. Chapman and his 
partners, fromthee7«i/fe(?pitto thie Tytie^ at a rent ascer- 
tained by award ; but no regular grant was executed. 

De Pofiihieu having opened a coal-pit, called the New 
Winning pit, in the Fa'wdon grounds, placed a new 
waggon-way over the Pawcton arid Coxlodge grounds, to 
communi^cate with the Kentoii and Coxlodge waggon-way 
near the Jubilee pit, arid alsp ovek* part of the WaUsend 
grounds to the TynCj and thus became possessed of a 
waggon-way from the New Winning pit to the Tyne^ 
and continued to wdtk pool, and use the way, until his 
death in Awil^ 1813. 

In May^ 1814, the personal representatives otdePon^ 
thicu sold his interest in the collieries to John l^eomarch 
for 45,0d0Z. 

In March^ 1817, Messrs. Knomley, Tt7ideU, arid t!o; 
assigned their inter^t in the Kenton and Coxlodge colli- 
eries, including the materials of the waggon-way con-' 

H 4 structed 



1818. structed by fV. Chapman and his partners, to Brand* 
' ■ ' *• ' lings and on the 5th o{ November^ 1817, Brandling sent 


V. a written notice to Newmarchj that the owners of the 

"^*""**' Coxlodge colliery had agreed for a new waggon-way, 
and as soon as the new line was prepared, intended re- 
moving the materials from the old waggon-road* 

The bill, filed by Newmarch and his partners, and the 
personal representatives of de PonthieUj against Brand* 
ling and his partners, insisted that de Panthieu and the 
Plaintiff having paid the reserved rent, and performed 
the covenants contained in the indenture of the 30th of 
April, 1811, and Brandling having granted or agreed to 
grant to de Ponthieu, his executors, &c* way-leave and 
passage along the Kenton and Coxlodge waggon-way, 
through his grounds at Coxlodge^ Gos/brth^ and Lang 
Bentonj for the term of twenty-oneyears, and having after- 
waras become the sole owner, and being then one of the 
owners, of the waggon- way, was not either by himself or 
in concert with the other Defendants, entitled during the 
continuance of the term to destroy or take away the 
materials of the waggon-vray upon his grounds, and 
thereby deprive the Plaintifis, as the executors and 
assigns of de Pontkieu, of the benefit of the agreements 
contained in the indenture of the 30th April, 1811. 

The bill stated, that the Plaintiff on receiving the 
notice, took measures for making a new waggon-way 
from the Fawdon grounds to the Tyne, in a du*ection 
different from that of the Kenton and Coxlodge waggon- 
way ; and on the 22d o( Nooernber, 1817, gave notice to 
Brandling, that they intended to quit on the 22d of 
November, 1818, the waggon«way and way-leave agreed 
to be gtanted to them over the grounds of Brandling : 
but insisted, that until the determination of the term of 
years by that notice, they were entitled to the benefit of 




the Bgreement; the Plaintiffi not having any outlet for 1818. 
the coal obtained by them from the Fawdan colliery, Niwjiaiich 
except the way granted to them, until the new way was o. 

completed, which could not be efiected before November^ 

In reply to a pretence that Brandling only granted to 

de Ponthieu way-leave and passage along the Kenton 

and Coxlodge waggon-way for so long time as the 

owners or lessees of the Kenton and Coxlodge colliery 

should not be minded to remove the same, or the 

matierials thereof, the bill charged, that by virtue of 

some agreement subsisting between Brandling and the 

owners or lessees of the Kenton and Coxlodge colliery, 

Brandling was empowered to sign the indenture of the 

30tk of Aprilj 1811, and had sufficient authority to 

grant to de PontAieu, his executors, &c. such way-leave 

and right of passage alcmg the waggon-way, as by the 

indenture is agreed to be granted during the term of 

twen^-one years. 

The billy also charging, that under the circumstances^ 
the Plaintifis were entitled to way-leave and passage 
along the Kenton and Coxlodge waggon-way, as tenants 
from year to year, that is to say, from the Slst Decem- 
ber in each year to the Slst December in the following 
year^ and that the Defendants were not entitled to de- 
termine such tenanc}', or to deprive the Plaintiffs of the 
use of the waggon-way any otherwise than as before 
mentioned ; prayed, that the Plaintiffs might be declared 
entitled to the benefit of the several agreements contain^ 
ed in the indenture of the SOth Aprils 181 1, and of the 
agreement between KnaajsUy^ Tindell^ and Co. and de 
Ponthieuj until the22d o( November^ 1818, the Plaintiffi 
offering to perform the agreement on their parts until 
such time ; and that in the mean time the Defendants 






might be restrained by injunction from conveying awdy 
or removing the materials of the Kenton and Coxlodge 
waggon-way, and from destroying or injuring the sam^ 
so as to deprive the Plaintiffs of the use thereof. 

The allegations of the bill being supported by aflS- 
davit, the Plaintiffs moved for an injunction. The affi- 
davits filed in opposition to the motion, stated, that in 
cases where owners or lessees of collieries had made and 
laid, under a grant or license from the owners of thcJ 
soil for that purpose, a waggon-way, for the purpose 
of leading the coal of their collieries, and the owiier^ 
or lessees of any other colliery were desirous of usin^ 
such way for the conveyance of coal, an application 
was made by the latter to the former for permission 
so to do ; and it was tlie usage and practice to grant 
such permission, on the person to whom the same was 
granted paying a certain sum, or an awarded sum per 
ton per mile for the coal led over such waggon-way ; and 
that such permission was always understood (unless it 
should be otherwise stipulated, of which stipulation tlie 
deponents recollected no instance) to be optional as to 
its duration on both sides; and that while the persons 
obtaining such permission were at liberty at any time to' 
discontinue the use of the way, and in consequence to 
cease to pay or make any compensation, the persons 
granting the permission were also at liberty to withdra'^ 
such permission, and to prevent the leading coal ov^r 
the way laid by and belonging to them at their pleasure^' 
and without giving any notice of their intention. The' 
affidavits fiirther stated, that the notice of November, 1817f 
was sent as matter of courtesy only, and not under a 
notion that the Defendants were bound to give notice of 
their intention to remove their waggon-way. 


Sir Samuel Eamilfy and Mr. BkkersUiJh in support of WttL 
the motion. 

Mr. Bdl against the motion. 

The Jx>RD Chancellor. 

An ag^reement by the lessees of the KetUou and Coi> 
lodge GollierieB, to allow -to the occupiers of the collieries 
of the Plaindffi the use of the waggon-ways enjoyed by 
them, would be effectual so far only as their interest ex- 
teodcd, but could not amount to an absolute grant with- 
out the concurrence of all the owners; for the right 
which they possessed was a licence to carry their own 
coaly not that of others. Such an agreement, I thinks 
uugbt be determined at any time, on the option of either 
party. But the Defendant Brandling then executes the 
deed of jfyrUj 1811, a most improvident deed, granting 
alicepce to use this identical way. Suppose that Brand- 

ling bad not come into possession of the Kenton and . 
Caglodge collieries, and that after that agreement the 
lessees of those collieries had removed the materials of 
the waggon-way, I think that they were at liberty so to 
act. But Brandling afterwards becomes owner in pos- 
session of the soil, and the question is, whether a court 
of equi^ will permit him to defeat his own covenant? 
The deed is improvident on the part of de Ponikieu also, 
who covenants absolutely for payment of rent, though 
the lessees were entitled to remove the materials. Had 
diey exercised their power of removal, no complaint 
ooald have been made against Brandling ; but the ques- 
tion is) whether, if he grants a right of way for a term 
of years, and afterwards acquires a power to render that 
grant effectual, he or those claiming under him can be 
pmnltted to defeat it ? 

fB^PfWW— '«HMai*«PM>«*«^i 








Jitfy 50. 

The Lord Chancellor. 

The claim of the Plaintifis to the interposition of this 
Court is rested on two grounds. First, th^t the owners 
of the Fawden colliery are to be considered as tenants in 
common with the owners of the Kenton and Coxlodge 
collieries, of the way-leaves in question, subject to de- 
termination on six months' notice. On examination of 
the different instruments, it appears to me that' thej 
could not establish any equity on that ground. 

But there is another ground on which they are en*' 
tided to say that the materials of this waggon-way shall 
not be removed before the 22d of November; an equity 
arising on the deed by which BrandUng demised a right 
of passage along this identical way. By that instrument^ 
Brandling having power to grant a right of passage to 
be exercised not only on any waggon-way which might 
be laid across that property, but on that identical wag-* 
gon-way, covenanted that de Ponfhteu, and those rq)re^\ 
senting him, should have a right of passage over that 
identical way ; and it appears to me, that neither he nor 
those claiming under him, can be competent to interrupt 
that way in contradiction to his own deed ; as against 
him and others, the Plaintiffs have an equity to atfffi 
you shall not defeat this grant by the premature removal 
of the niaterials, and deprive us of that identical way to 
which this deed entitles us. 

I am of opmion, that the Plaintiff are entided to an 
injunction against the removal of the materials before the 
22d of November, (a) 

Specific per> 
formaDce of 
an agreement 
become ute- 


The bill was for a specific 
.performance of an agreement 
by which the Defendant was 


to take a lease of a way- 
leave over thePlaintiflTs close, 
at the yearly rent of ICtf., for 




the UM of a colliery which 
the Defendant intended to 
take; and was likewise to 
emplej the PlaintiflTs son in 
the colliery during the term, 
and allow him 201, per annum 
darmg the first seven years, 
and 9(ML the second: at the 
dote of the articles the De- 
fendant obliged himself to the 
performance under a penalty. 
After the execution of them, 
some other colliers took a 
leaae of other lands, which, 
as well as the Plaintifi^'s, lay 
between the colliery and the 
riTer, and so rendered the 
Plaintiff's, way-leave useless 
to the Defendant; and the 
Defendant could not obtain 
a lease of the colliery, and thei)e< 



the lease that he was to take 1818. 
being for the use of the col- Vn^s^^ 
liery, though there was no NawMAa'ca 
fraud proved in the Plaintiff BmiMvaia, 
hindering the Defendant from 
taking the other way-leaves or 
the colliery, 

Yet my Lord would not 
decree a specific perform- 
ance, but directed only a 
quantum damnificavU by the 
Defendant's not taking the 
lease ; and that part that re- 
lated to the employing the 
son he totally rejected, there 
being no colliery to employ 
him in. — Lord Cokhester^u 
MSS. in a collection en- 
titled as containing cases 
from Easter 1706 to Michael- 
moi 1718. 


^rWE bill stated, that the Defendant John Ambrose^ be- 

ing rector of the parish of Blisnootihj in the diocese 

of Peterborough J in 1805, agreed with the Plaintiff for the 

isle to him of an annuity of 100/. during the life of 

Ambrose^ secured on the rectory, at the price of 700/. ; 

sod by indenture of the 29th oi August j 1805, Ambrose 

granted to the Plaintiff an annuity of 1 00/. charged upon 

the rectory, {a) parsonage-house, &c. during the life of 


(a) The stat. 13 Eia. c. 20., than rents reserved upon leases to 
declaring Toid ** all chargings of be made according to the meaning 
bieoeficef with cure, with any pen- of the act,'* together with the 
wm or with any profit out of the ** explanations, additions, and aU 
isnie to be yielded or taken, other terations thereof, made by i eve- ' 


Jufy so. 
Aug. 18. 

A third in- 
on a rectory 
havina ob- 
tainea a le- 
quettmtion, a 
receiver was 
lippointed at 
tne instance 
of the second 


1B1& Andnvsii with covenants for permitting entry and dis- 
tress on the rectory^ in case the anntiity should be in ar- 
rear; and demised the rectory to JV.Boss for ninety-nine 
^IliiMiio^ years, if Ambrose should so long live, in trust, in case the 
• mmoBn annuity should be in arrear, out of the tithes and profits 

of the rectory, or by sale or mortgage, to raise such 
sums as should be sufficient to satisfy the arrears ; and 
after reciting an indenture of the 27th of ilf^, ISOS, 
whereby Ambrose granted to Joseph Jacob an annuity of 
110/. charged upon the rectory, and secured by a de->' 
mise of the rectory for six^ years, and appointed Jlfo^ios 
, Deane receiver of the tithes and profits of the rectory^ 
in trust, to secure the annuity, Ambrose confirmed the 
appointment of Deane as receiver, and Deane agreed to 
apply the surplus of the tithes and profits of the rectory^ 
after satisfaction of the annuity of 110/. and certain 
other deductions in payment of the Plaintiff's annuity, 


The bill further stated, that a memorial of the an- 
nuity was enrolled, and that the annuity had remained 
unpaid since the 29th of Afay, 1810; ihsit Deane Axed 
without having acted as receiver; that in February^ 
1814, Ambrose took the benefit of the stat. 54? G. S. 
c. 28. for the relief of certain insolvent debtors, and the 
Plaintiff had been appointed assignee of his estate and 

ral statutes in the 14, lis, and repealed. It seems therefore 

45/* of EUzabethf was repealed that so much of the stat. 13 BUm, 

by stat. 43 Geo, 3, c, S4. «. 10. ; c, 20. as relates to the charging 

but by stat. 57 Geo, 5, c, 99. s. 1., of benefices, and the provisions 

so much of the acts ofEiizabeth, in stat. 14 Elk, c. 11. «. 15. con* 

" as relates to spiritual persons cerning bonds, contracts, pro* 

holding of farms, and to leases mises, and covenants, for per« 

of benefices and livings, and to mitting any person to enjoy any 

buying and selling, and to resi- benefice with cure, or to take 

dence of spiritual persons on the profits thereof, remain in 

their benefices," ,and also the force, 
statute of 45 Geo. 5. c, S4., are 



eSectef of idiich an assignment had been made ; that by 18t8l 
^easoa of prior incumbrances afiecting the rectory, and JJ^ 
ittrpardcokir of an outstanding term created by thQ in- «i, 

d^tare of. the 27th of May, 1S05| and then vested ip pjjSJIJSn 
i^ Defendant, Bobert Coddringtouj the Plaintiff was 
unable to proceed at law to enforce his remedies against 
the reptory ; and that the Defendant, Stephen Eaton, 
wfB ill possession of the rectory under a sequestration 
granted to him by the Bishop o( Peterborough* 

The bill proceeded to state an assignment of Jacob's 
annuity to Bobert Coddrington in July^ 1807^ and subse- 
^ent grants of annuities by Ambrose ; and particularly a 
pretence of the Defendants, Stephen Eaton and William 
JoknsoHi that by an indenture of die 27th oijuty, 1809, 
Anbro$e^ in consideration of 3000/., granted an annuity 
of 41 7/«9 during his life, to Eaton, and demised the rec- 
tory for 99 years to Johnson, in trust, to secure the pay- 
ment ; and a pretence of the Defendant, Augustus Man-' 
fiing% that Ambrose was indebted to him in the sum of 
4807/» upon a judgment ; and charged that the sums of 
3000/. and 4807/. were never paid to Ambrose, and that 
the grant of the annuity and the judgment were merely 
odburable transactions to enable Ambrose to retain pos- 
session of the rectory, and to exclude the Plaintiff and 
other creditors, and that with that view Eaton and Man* 
ning, on the 26th of June, and the 14th of November, 
1811, respectively, procured sequestrations of the rectory 
to be granted to them by the Bishop of Peterborough; 
and by virtue of such sequestrations, they, or one of 
them, had entered into possession of the rectory, and 
had received the tithes and profits to a considerable 
amount ; and though they had notice of the Plaintiff's 
annuity as a charge upon the rectory, had advanced 
various sums to Ambrose out of their receipts* 

The bill prayed an account of the arrears of the 



1818. ^ PlaintifF's annuity, and that the future payments might 
be secured out of the tithes and profits of the rectoryf 
a reference to the Master to take an account of the in- 
Psnuo- curabrances affecting the rectory, and to ascertain their 
Boooa. priorities, and what was due upon them respectively ; 
an account of all sums received by the Defendants^ 
Eaton and Marmingf or either of them. Sec, from the 
tithes and profits of the rectory, and application of the 
amount, after deducting the sums expended by them in 
the salaries of curates and all other just allowances, in 
payment of what was due to the Plaintiff and the other 
creditors of Ambrose, according to their priorities ; and 
if it should appear that Eaton and Mnnningy or either of 
them, had advanced any sum to Ambrose out of the 
tithes, &C., after notice of the Plaintiff's annuity, that 
they might be charged therewith ; and that the Plaintiff 
might be let into possession of the rectory, or that a re- * 
ceiver might be appointed with the usual powers ; and 
an injunction to the Bishop of Peterborough from grant- 
ing, and to the other Defendants from taking out or 
proceeding in, any sequestrations against the rectory, or 
collecting or receiving the tithes or profits thereof. 

Jtify so. The allegations of the bill having been supported by 

affidavit, on this day a motion was made on behalf of 
the Plaintiff^, for a receiver, and an injunction. 

Mr. Hart and Mr. Seton, in support of the 
referred to Errington v. Howard (a), and Silver v. the 
Bishop of Norwich, {b) 

(a) Antb, 485. 


AMg, 1816. (*) SILVER V. The RISHOP of NORWICH. 

AnodTcriD* The bill stated, that pre- defendants, being possessed 

Ofotoof^ vious to December, 1809, of certain rectories, and a 
rectoi'^ under ^^'sfus Beevor, one of the vicarage in the diocese of 




Sir Samud Bamilfy and Mr. Barber against the mo- 1818. 


Norwich, contracted with the 
Plaintiff Silver, for an annuity 
for his life, to be charged on 
the rectories and vicarage; 
and accordingly, by inden- 
ture dated December % 1809, 
Amgiuhu Beevor bargained 
and sold to Siher an an- 
nuity of S4S/. during the life 
of Auguihu Beevor, charged 
opon the rectories and vicar- 
ige ; and the indenture con- 
tained a covenant on the part 
of Beevor, in case the an- 
woLtj should be in arrear, to 
permit distress and entry by 
Woeri and Beevor demis- 
ed to the PhuDtiff Sparkes, 
the rectories and vicarage 
for 99 years, if Augustus 
Beevor should so long ]ive» 
io trust, in case the annuity 
should be in arrear, by de- 
mise, sale, or mortgage, to 
raise the arrears. 
' The bill stated a similar in- 
denture for securing an an- 
nuity of SOO;. to the Plaintiff 
RoUe^oH, Both annuities 
were secured by warrant of 
attorney, and both were in 
arrear ; and, on the 15th 
Mai/, 1812, Silver and Rol- 
lesion (having severally en- 
tered up judgments, &c) ob- 
VoL^ III. I 

tained sequestration against sequestration, 
the rectorie. and yiaurage. SSSSST 

On the 12th November, against enforo- 
1812, JametjBfcvor procured ing sequestra* 
sequestration to be actually ^^'^ 
granted to him by the Bishop 
of Norwich, and bad ever 
since been, and then was, 
in the receipt of the profits 
under it. 

In October, 1811, Augustus 
Beevor took the benefit of an 
insolvent debtors* act, under 
which Silver was appointed 
his assignee. 

The bill charged* that the 
debt upon which James Bec" 
vor had obtained sequestra- 
tion was collusive ; that he * 
was a trustee for Augustus 
Beevor, i9iih notice ; and fraud, 
&c.; and, afler stating the 
claims of several other De- 
fendants, who had sequestra- 
tions against the livings, and 
annuities charged on them, 
which they pretended were 
prior, and charging that they 
were not; the bill pray- 
ed an account of the ar- 
rears of the annuities; that 
the arrears and future pay- 
ments might be paid out of 
the profits of the living; that 
the sequestrations of James 







The Bishop of 


The Lord Chancellor. 

I remember, that in the case of Silver v. the Bishop of 
Norwichf I had occasion to consider the authorities re- 

Beevor^ and those of the 
other Defendants, might be 
declared fraudulent, and an 
account be taken of what 
James Beevorand the Bishop 
had received under them, to 
be paid over for the benefit 
of the parties interested there- 
in; a reference to ascertain 
the priorities of the annuities; 
that Silver might be let into* 
possession; a receiver, and 
an injunction. 

After the answers had been 
filed, the Plainti£& moved for 
a receiver of the rents and 
profits of the rectories and 
vicarage; and an injunction to 
« restrain the Bishop o£ Norwich 
and James Beevor from col- 
lecting the rents, &c., and to 
restrain otherDefendants from 
putting in force the seques- 
trations which they had ob- 

Mr. Hart and Mr. Seton in 
support of the motion. 

Sir Samuel Romilly and 
Mr. Barber opposed the mo- 
tion, on the ground that the 
Court had no jurisdiction to 
interfere with a possession 
under a sequestration by ap- 
pointing a receiver. 

The Lord Chakcsllor. 

The legal estate is not in 


the sequestrator. The tnii« 
tee of the Plaintifi^ under the 
demise of the term by which 
the annuity is secured, might 
bring ejectment, and in that 
recover the glebe and the 
tithes. It is said the legal 
estate is in one ScoU^ under a 
demise of a prior dat^, to 
secure a previous annuity, 
and that ScoU will not con- 
sent to the receiver. But, I 
apprehend, the Court will 
not allow a prior incum* 
brancer to object to the 
Court's appointing a receiver 
by any thing short of a per- 
sonal assertion of his lepX 
right, and a taking possession 

In the course of the loAg 
vacation of 1816, the follow- 
ing written judgment was 
sent to the parties. 

The Lord Chancellor. 

I should have sent this 
case to town sooner, if, upon 
reading the pleadings atten- 
tively, I had not found more 
difficulty than what occurred 
to me upon the mention of 
the case in Court. 

The objection to SSvef^n 
annuity, founded in what is 
stated (in the answer) as to 




latiTe to thb question ; but my present recollecticm is 

not suffidently precise to enable me to pronounce judg- "v^bitb 

ment» v, 

I The Bbhop of 

The Aoudfl* 

tiie memorial {a)f makes it ne* 
ecaarjy on this motion for 
a recdver, to consider the 
case as founded only in the 
dsim of RoUeHon for his an- 
Boi^. With respect to any 
daim which RoUeston can 
bnre under his sequestration 
of the 15th Mai^, 1812, the 
pleadbgs deny that seques- 
tration, [b) 

I cannot^ in the question 
about appointing a receiver^ 
aoir enter into the considera- 
tion what may be fit to be 
done if he obtains a ralid se- 
qoettration hereafter. If he 
his now no .Talid sequestra- 
tion, 1 do not see what right 
he has to an account now 
under a sequestration, even 
if he should have that right 
when he has obtained a valid 

But perhaps this case will 
be found not to depend upon 
the rights connected with se- 
questratiouyor sequestrations, 
merely. Rollesion*% annuity is 
secured by a term of ninety- 
nine years, created in Decem- 

ber I809i <^od he seems, by 
the persons in whom that 
term is vested, to have a 
right to proceed by law to 
take possession against all 
subsequent judgment credi-^ 
tors, having obtained seques- 
tration; and therefore against 
James jBefvor's judgment, un« 
less there are prior outstand-^ 
ing legal estates, that would 
bar his title in ejectment. 
If he has such a right, and 
can proceed at law, he is not 
entitled to have a receiver in 
equity. The bill has indeed 
stated as pretences, that there 
are prior annuities of 1805 
and 1807i without statingi 
whether the grants are of 
such a nature as would bar 
the Plaintiff's proceeding in 
ejectment under the demise, 
for it does not state these 
prior grants with much par- 
ticularity as to the effect of 
them ; but whatever they are, 
the bill, instead of admitting 
their existence, and stating 
that existence to be a bar to 
the Plaintiff's proceeding at 

(a) That it hsd not been duly lUhed. Legassicke v. The Bithop 

enrolled. ofExeter^ 1 Crompton^ 559.; see 

(&) It was said to be invalid TkUCs Practice, 1004. n. 

at not having been duly pub- 

I 2 law, 



1818. The Lord Chancellor. 

Wbitb Where a creditor of a clergyman seeks to obtain pajp* 

The BbfaoD of "^^^^ ^^ ^^ ^^^ ^7 judgment and sequestration, h^ i% 



Aug. 18. 

law, expressly charges that 
there are no such annuities, 
and that the suggestion that 
there are such is mere pre- 
tence* The answer indeed 
of Augustus Beevor or James 
BeevoTf after asserting that 
James*B judgment is not co- 
lourable or in trust,represents 
his judgment for 10,000/. to 
be for securing 1S88/. debt, 
and what he pays as surety 
for ScoU'b annuity, which is 
prior to the Plaintiffs, and 
for various sums which James 
had paid for Augustus* 

But this part of the answer 
does not so state the securi- 
ties for Scott^B annuity, as to 
enable any judgment to be 
framed, whether there is an 
estate created for securing 
Scotfs annuity, such as would 
defeat the proceedings in 
ejectment, under the ninety- 
nine years' term, created by 
the demise in the deed of 
December 1809 ; and if that 
proceeding can be sustained, 
and it does not appear upon 
these pleadings that it cannot 
be sustained, I apprehend a 
receiver cannot be appointed. 
It is also true that it does not 
appear one way or the other 
by the answers, whether 

James Beevor has a right to 
make use of his judgment as 
against the Plaintiff RoUesUm 
and his demise for nine^* 
nine years, with respect to 
the sums which he has paid 
for At^ustus Beevor beyond 
his pajrment of Scotfu m^ 
nuity. But James has sworn 
to a large sum of monqr 
being yet due to him, and I 
apprehend the Plaintiff oin» 
not be entitled to a receiver^ 
unless he can show by the 
record, that if he is entitlad 
as a prior judgment creditor 
having a right to a sobw* 
quent valid sequestration, (the 
present sequestration ofRoi* 
leston being denied to b^. v»- 
lid) the demand is 
respect of which James 
vor is entitled to make we 
of his sequestration, or un* 
less he can show from the 
record, that whatever be die 
claim of James Beenor^ satiS" 
fied or unsatisfied, the PlaiiH 
tiff has a right to the posses- 
sion, by virtue of his demise 
for ninety-nine years prior to 
James Beevor^B title, but tliat 
by virtue of some prior legal 
estate, which would prevent 
his availing himself of the 
ninety-nine years' term, he 

. cannot 



b the contemplation of this Court, in the same state as 
any other creditor who has taken out execution ; and, a 

cannot make use of it at law, 
md therefore is obliged to 
come into equity; and it 
to me that upon the 
state of the record it 
muwi be shown that this is 
suficiently manifest for the 
poqpose <^ this motion. I am 
therefore upon the whole 
afraid that the case, as it 
upon the record, does 
admit enough for the ap- 
of a receiver^ and 
that more admissions must be 
obtained by compelliug fur- 
ther answer. I have, how- 
efer, slated the grounds upon 
wUdi I think I cannot grant 
the antion» that either party 
■ay oftr to me their obserr- 
atimis upon what I have 
stated; being apprehensiTe 
Aat the justice of the case 
is more with the PiaintifF as 
IS hariBg a reoeirer appoint- 
ed, than it perhaps can be 
ihown to be upon the state 
of the. present record. From 
Mr. MerhaU's MSS. 

A receiver was afterwards 

His Lordship doth order, 
that it be referred to Sir 
Jokn^ Simeon^ baronet, one, 
&&, to appoint a proper per* 
son to be receiver of the 

rents, tithes, issues, and pro- 
fits of the rectories and vi- 
carage in the pleadings of 
this cause mentioned, and to 
allow him a reasonable salary 
for his care and pains therein, 
such person so to be appoint- 
ed first giving security, &c* ; 
and the tenants of the said 
estates are to attorn and 
pay their respective rents in 
arrear, and growing rents, to 
such receiver, who is to be at 
liberty to let and set the said 
estates from time to time, 
with the approbation of the 
said Master, as there shall be 
occasion ; and it is ordered, 
that the said Master do in- 
quire what annuities and in- 
cumbrances there are affect- 
ing the said estates, and he 
is to state their priorities; 
and it is ordered, that the 
person, so to be appointed 
receiver, do keep down the 
said annuities and the interest 
of the said incumbrances, ac. 
cording to their priorities; 
and it is ordered, that he do 
pay the balance that shall be 
reported due from him, from 
time to time, into the bank, 
&c.; and in the meantime it is 
ordered, that the Defendants, 
the Bishop of Norunch and 
James Bcevor, be restrained, 

3 by 




The Buhop of 



1818. creditor, having taken out execution^ cannot hold pnH 
perty against an estate created prior to his debt. I^ by 
ekgitf one creditor is in possession of one moiety, and 
J^tbmS. aJtt^^t'^er creditor of another moiety, that is good against 
novQu. the debtor ; but if there is an antecedent estate, by Tir- 
tue of which an ejectment may be brought, it does not 
appear that against that estate the creditors can hold. 
Here the Plaintiff could not succeed in an ejectment 
because there is a prior estate which may be set iq> 
figainst him; but though a second incumbrancer, jret 
being prior to the creditor who has taken out seques- 
tration, it appears to me that he is entitled to a 

18th August^ 1818.— << This Court doth order, that 
the Defendants be restrained from collecting or receiving 
the tithes, issues, and .profits of the rectories, in the 
pleadings mentioned ; and it is ordered, that it be re* 
ferred to Mr. Courtenay, one^ &c^ to appoint a proper 
person to collect, get in, and receive the said titheSf 
issues, and profits, &c. ; and it is ordered, that the said 
Master do take an account of the incumbrances affiscting 
the said rectories, and ascertain their respective priori- 
ties ; and it is ordered, that the receiver do, out of what 
he shall so receive, pay and keep down what is or may 
become due and payable for, or in respect of such in- 
cumbrances, according to their respective priorities; and 
he is to be allowed what he shall pay in respect thereof 
in passing his accounts before the said Master, and fiyr 

bythe injunction of thisCourt, from putting in force the le- 

from commencing or prose- questration obtained by them 

cuting any proceedings in re- in the pleadings of this cause 

spectofthe matters in the bill mentioned, until the farther 

mentioned ; and it is ordered, order of this Court* — R%« 

that the Defendanto Miles Lib. B. 1815. fol. 17SS — • 

BeeooTf WiUiam Unthank, and 1 735. 
Mary BeevoTf be restrained 



the better taking tbe said aoooonts, &€." — Reg. Lib. B. 1818. 
1817, ibLl6«9.(«) ^"^^ 

(a) See concerniiig lequestr*- Jlerificuu, agabst a clergyman ; j|,^ Bishop of 

tkm of ecdetiastical property, and returns that he had granted PiTsaBO- 

Oaidmgiom t. IFt%, miiey roL n. such sequestration, but that A. aoaoR. 

p. 174i9 ^^ ^ references ; to and B.^ tenants of the land, re- 

vfatch nmy be added Berunck v. fused to pay the rent accordipg 

Swa n im ^ Bunb, I9S. n. 1 Wood^ to it: upon a motion for an at- 

195. tGwUi.SSJ. T^ Bishop of tachment against A. and J9., it 

X^uwhkv.BMcUer, S Gwill. 610. was objected, that there was 

neJMopofLondauy.NiekoUSf no affidavit that A. wad B. re- 

Bmik. 141. SGwiU. 648. and fused to pay ; but the Court.held 

JRUUardi. Beckford, 1 Haggard, the return of the bishop, who, 

807» in this case, is in nature of the 

^ Poick 10 Ann. B.B. Co- sherifi; sufficient." — From Sir 

yniTET'i Cavl, — The bishop demeni Wearf^i MSS. 
granti a sequestration upon a 



July 21, 

MUNYARD V. NEW. isis). 

3far»l IT. 
nnHE will ci James Danidj dated in Jpril^ 1812, was Construction 
•*• in tlie following words: " Whereas my good and ^u'l^cxcclih 
fiddifiil senrant, Ann GUofAierj has been kind, and done tors not benefi- 
a modier^s part towards my daughter from her cradle, ^ 
and I patting great confidence in her future care and 
attention to and for my daughter's happiness, and for 
AoBe reasons Ido order and direct, that all the rents and 
I»ofits arising from all and every part of my estates or 
effects shall be paid into the hands of my fiuthfol friend 
Ann Glayshievy together with all the interest of any mo« 
ngy in the public fimds, and that her receipt shall be a 
fiill discharge for all monies received by her; and I 
order and direct, that she may recover and receive all 
money that may be owing to me, and that it may be 
paid into her hands ; and after paying my just debts, 

I 4 and 


ldl&. and funeral expenses, the money to be applied as Sol* 
lows : First, I give and bequeath unto my &ithfiir.^<ifii 
Glayshier the sum of 200/. per annum for and during her 
natural life, together with the use of all my household 
furniture^ for her use, not subject to the debts or cob- 
troul of any future husband ; and I do order and direct, 
that the interest of all the other monies arising fix>m my 
estate and effects shall be applied as my executort 
shall direct, for the comfort of my daughter, as may be 
thought proper, subject to the direction and advice of 
my fiuthful friend Ann Glayshier j and that no part of the 
money shall be subject to the debts or controul of vvf 
daughter's present or any future husband; and I do 
order and direct, that, in case my son-in-law, Joseph 
Munyardj treats my daughter with kindness, and per- 
mits her, and that she does stay as long as she {leases 
with any of her friends or relations, and that in case my 
daughter shall, from any cause or infirmity of mind, or 
illness, be put under the care of her friends, and that 
it shall be the wish of my daughter to remain with her 
friends, that her husband shall not take her away, 01* 
compel her to live with him, in case she does not like it, 
and that her husband, Josqph Munyardj «igns a deied 
drawn up for that purpose, and that my daughter is not 
compelled to live with his mother, or any other part of bb 
family; and on my daughter's husband OMSipIying widi 
these terms, then, and in that case, after the decease cfmy 
daughter and jinn GUijf shier, the whole of all my houses 
and lands shall go to my daughter's husband, Joseph* 
Munyardj his son, Joseph Daniel Munyard; and, afler hi» 
son's decease, to be subject to the will of my son -in-law,' 
Joseph Munyard, his heirs or assigns for ever ; and in* 
case my daughter's husband does not comply with these' 
terms, then, and in that case, I leave it to the full power 
of my executors to dispose of all my property to and 

9 amongst 



amongii my own rdatioiis as they think proper, after 1818. 
the decease of my daughter; and should X leave any ^ * 
maaej in the public funds, then I order and direct, that 
one half diall go and be subject to the same conditions^. 
fD the use and benefit the same as the other proper^ for 
die benefit of my daughter, and, after her decease, to go 
to Joufih Mmmford and his aon; the other half of the 
fimded prcqiertjrvto be dispoaed of by my executors as 
they may judge right; in case of the decease of my son-* 
in-law, Joseph Mwiyardj then I do order and direct the 
whefe of my property besides Ann GlajfAw^% part^ shall 
g0;aiid be applied for the whole benefit and support of 
my daughter, Sarah Ann Mumfordj and lier son." 

The testator appointed Afm GUyshUrj Qeorge Nfm, 
mad Ckariette Na$hf his executors and executrix. 

On the ^7th of Augud^ 1812, the testator executed a 
codicil ; which, after referring to his will, as in the pos^ 
session ofF.J.Baoobothamj proceeded thus : <* Whereas, 
in and by my said will, I have ^ven and devised my 
leal and personal property, and to the persons, and in 
the nuomer therein expressed, the whole particulars of 
which I do not reocdlect, and I have therein nominated 
sad appobted Qeorge Neao^ with other persons, as trus- 
tees and executors; now, I do, by this codicil, which 
I Arect to be added to and taken as part of my said- 
wSI, nominate and appoint my said firiend JFhmcfV Jbna- 
than Bawboiham to be a trustee and executor of my said 
will, jointly with and in addition to the said G^n-ge 
NfmuMid the other persons therein named ; and in case 
of any inaccuracy or insufficiency as to the disposition 
of all or any part of my real or personal property, I do 
horeby give^ devise, direct, limit, and appoint, all my 
real and personal, of every description, in Oreat Bri^ 
tem, or elsewhere belonging to me, or over wfaicb I 



have any power cf appointment or dispositioiif unto tbe 
said F. J. Bomboikamf jointly with the said Geor^ Nem 
and the other persons therein named as trustees or exe- 
cutors in my said will, and to their heirs, executors, ad- 
ministrators, and assigns, upon trust for the several 
persons, and to be disposed of in the manner expressed 
concerning the same,, in and by my said will, which I 
do hereby ratify and confirm, in all respects not herel^ 
varied or altered/' 

The testator died on the 2dth of Auptsiy ISIS, pos- 
sessed of some leasehold and cop^bold estates and^aio- 
ney in the funds. 

. The bill filed by Sarah Jnn Mumford^ his only dsM^ 
stated that George Nea zmSi Asm Gkgfshier proved iho 
will, and that the latter had retained to her use the tea- 
tator^s househdid fiumiture^ without havii^ signed an 

The bill charged, that the general devise and bequest 
to all the executors in trust, contained in the oodicily 
revoked the special direction in the will, with r^ 
the receipt oiAmn GUyshier alone; and, that by the true 
construction of the whole of the will and. codicil Xogf^. 
ther, the executors took the whole of the property not 
q3ecifically bequeathed in trust for the Plaintiff fi>r.iiec 
life, or during her coverture, with a future contingent 
benefit to her, in case she should survive her husband ; 
and that although the executors and trustees might b» 
empowered to exercise a discretion as to the mode of sp-. 
plying the same for the Plaintiff's comfort, still the. 
whole income of the testator^s property, after paying 
Ann Glca/shier^s annuity, miist be so, applied, or if iioC» 
that whatever the executors should not think proper ta 
be applied for the Plaintiff's. comfort and. benefit during. 



Ymat oivertUT B, ought to be accounted for by them^ and 1818. 
laid out 88 part of the testator's general estate, for the 
benefit of those entitled to the residue. 

The UIl prayed, that the trusts of the wiU might be car* 
lied into execution for the benefit of the Plaintiff and all 
persons interested; the usual account of the testator's per* 
sonal estate^ and of his copyhold and leasehold Estates ; 
and that it might be ascertained of what particulars the 
dear residue might consist ; and that the Plaintiff might 
be declared entitled to the whole interest or income of 
siidi lettduary estate, to her separate use for her life^ or 
dming her coverture, with such foture contingent in- 
terest absolutely as thereinbefore mentioned ; or that 
the ri^t and interest of the Plaintiff, and the several 
parties nug^t be ascertained and declared ; and that di« 
rectioDs might be given for renewing any of the testa^ 
tor^a copyhold and leasdidd estates which might require 
renewal; and to that end, if George Neto and Ann Qky^ 
Aier should not be held to have in them, as acting exe- 
cuton, sufficient estate and interest in the copyhold 
eilBtea, without the joining of the executors and trustees 
named in the will, then that such other executors and 
trustees might join, or assign and convey their interest 
Aefein respectively, to the acting trustees and execu- 
tors; and that, if necessary, a receiver might be ap- 
le copyhold estates, with the usual directions. 

Ann GUyshier^ by her answer, claimed the annuity of 
SOCML, and submitted whether she and the other exe- 
entors were entitled, {or their own benefit, to a moiety 
of the testator's property in the public funds; and 
whether she was entitled to receive, during the life of the 
Plaintiff the rents and profits of the testator's copyhold 
and leasehold estates, and the interest or annual pro- 
duce of the dear residue of his personal estate other 
than his household furniture, and thereout to retam and 



1818. pay to herself the annuity of 200Lf and to apply the re* 

IJ'- ' ' mainder according to the directions of the will; or 

p. whether she was only entitled to be paid during hor life 

^" the annuity of 200/. ; and in that case, out of what fiind. 

: The case, on fivther directions, was argued by Mr. 
TroweTf Mr. O. Wilson^ Mr. iEIayf , and Mr. IVedooef 
for different Plaintiffi ; Ut. BM and Ut. ShadwM, fx 
the Defendant J^^€W ; Mr. JVethereU und "Mr. BoigMl, for 
Bawboikam ; and Mr. Heald and Mr. Cooper^ for Jtin 

Hie following authorities were cited : Bra. Abr. De* 
tnm pL 89. Anon. Moor^ 61. Bobmson t. Dusgate (a). 
Hales V. Margenm {b\ TamUnson y. Dighton {e\ Nan* 
noek V. Horton{d^ Maskefyner. Maskefyne(e\ Time* 
well T. Perkim{f\ GoodtUle v. OiW(a/{g% GMe r. 
Bawuey (A), Paice y. The ArchUAop qfCanUrbwy. (t) 

The Master of the Rolls. 

In the construction of a wiU so strangely framed, om* 
siddrable difficulties are inevitable. The principal ques^ 
tian i% whether the testator did not Imtend'to giVe ons 
moietjr of his fonded property to his executors ? The 
subordinate quesdon, who fill the character of executoi^ 
— *tho^ only who have proved, or those also who haive 
not pmved, and in #hat proportions they take?-* will 
not arise till the previous question is decided. 

It is feir to contemplate the situation of the testator 
and his femily, as some guide to his intention. Having 
copyhold, leasehdld, funded, and other personal proptr^t 

(«) 9 r<mi. isi. {f)tAUu\Qii. 

(d) S KM.8SS. (g) S WUb. 6. 

(o) 1 p. W, 149. (ky U Fes. 4^JSea.99A. 

(lO 7 r«f.591. (i) 14 r«f.564. 




md only 0Da childs a daof^toy pecuUfurly yequking hi$ 161$. 
I»otectioii| and marked out as the object of his carc^ aiid 
xDanJed to a hiishBiid with whom tlvere liad boea 
diipa|es» and havis^ one son of the liiarjriage^ withral 
a»7 miseoiiditct oq her parl^ and die stiU appearing ta 
l^ the prindpal otgect of his bounty : to aappose that the 
tfiotator meant to bestow one half of his property oa 
9lraqger% not on any suhstitiirted objeet, having a prior 
abunit but merely to give it from his daughter and grand- 
iWy ia a condosion which the Court would not adopts 
mileis the words of the will peremptorily require it, 

. Tb^ will (whid^ is written by his own hand) tnanU 
fbata an inlentiim to embrace the whole of the tester 
tof^a propertyy real and peraonal^ eaiinressly inieludi^g 
interest arising from the fundpb which is to be pi^d 
into the hands of Jmh QU^$hiet% m object of his 
boonty, but principally with reference to the chief oLjepI 
of bounty, his daughter; and, as a means of conducting 
it to her, she is to retain to hesKlf 2QQLper anmim for 
hor Wk% not subject to tbe debts or controul of her hus* 
band ; and a qpiestion has arisen, whether tbe househdd 
fiimitore was given absqiutely to her« or only die use 
f)f it during life? I am of opinion, that it was the tes- 
tator's intention to give to her the use for 1^ only ; that 
gift is expressly connected with the septence that gives 
to her an annuity for life : both the subjects thus united 
are evidently intended to be given for tbe same period* 
Pursuing the general question, all the interest of money 
in the fluids, and all the rents of the lapds are giv^ to 
Ann Glojfskip'^ subject to this annui^ of 2002. ; and the 
testator then directs, that the interest of all his other 
monies should be applied as his executors direct for the 
comfort of his daughter. This is a disposition of interest 
only, not of cfq;>itsL The interest of every part of his pro- 
perty, after satisfying the annuity of 200L, is devoted to 



1818. the comfort of his daughter; bat that dause, uitdobbtedly, * 
extends to give to her the interest only, not the carfm 
of the estate* Tli^i, leaving foi^ a time the dispositimi 
in &voar of his daughter, the testator proceeds to the 
case to which he had anxiously adverted, hoping to hi- 
duce the husband to treat his daughter with kindnew. 
The deed to which the will refers appears, by the Ma»« 
ter's report, to have been prepared in 1810, though noC 
executed till after the date of the will in 1812 ; but the 
testator by the will invites the husband to execute Ab 
deed, making the execution a condition of the benefits 
conferred on him, and thus imposing an obligation to 
treat his wife in the manner prescribed. In case of com- 
pliance with those terms, the real property, but no part 
of the personalty, is devised, after the decease of the wift^ 
to the husband and grandson, to be at the absolute disposal 
of the former, after the death of the latter. That is tha 
first alternative^ compliance. 

The testator then adverts to the alternative of noiH 
compliance, (a) The first observation cm this dawe 
rekites to the words, ^* all my property f terms large 
enough to comprehend every thing of which he was pes* 
sessed; but the question is, whetiier he did not mean 
all his $aid property, all that which he had just given in 
the event of compliance, namely, houses and lands ; de^ 
signing^ in case of a compliance, a gift to his son-in-law; 
in case of non-compliance, an absolute power of disposal 
by his executors among his femily, after the decease of 
the daughter, who was to enjoy the rents of the hmdy 
and the interest of the fimded property. Then, assum- 
ing that the testator is pursuing the same alternative 
the event of non-compliance of the husband, having d^* 
clared what was to become of the lands in that event, 
that they were to be distributed by his executors iunoiig 

{a) See the claiue, mUe^ p. ISO. 



hie relatioD8» was the son-in-law to be left destitute? 1818. 
What was to become of the funded property ? To that 
be next proceeds. The clause is, indeed, subject to 
oooaideraUe difficulty and confusion; the testator is 
entan^ed by a multiplicity of words, but the question is, 
whedier the. Court cannot discern his intention ? Whe- 
tlier it is not iqpparent, that he is now making a dis- 
poaifion>with regard to the funded properQr, in the event 
in wfaidi he had preykmsly disposed of the landed 

Designing his will to cerate in terrorem on his son- 
in-law, if he did not treat his daughter according to die 
tenns of the deed, the testator directs that he shall for- 
feit all the landed property, and that his executors shall 
diqposeof it; and as to the funded property, instead'of 
having the whole, tiie son-in-law and grandson shall 
have only a moiety. • It might be reasonable that his 
granddiild, the son of his only daughter, and the fiir- 
ther of that son, should not be totally destitute^ but 
that a reduced provision should be made for them; the 
odier moiety is left to the disposal <^his executors. The 
same power that the testator thon^t fit in the first in- 
stance to give to his executors over the landed property, 
as a punishment for the non-compliance of the son, he 
here extends to the funded property. 

The difficulty of this part of the case arises fir<»n his 
having embarrassed his meaning with the words, ^ sub- 
ject to die same conditions, to the use and benefit as the 
other property for the benefit of my daughter ;'* wofds 
which certainly create a considerable obscurity; but the 
main otgect of this clause seems to be^ not to mA& a 
new diqxMDtion in fiivour of the daughter, but to pro- 
vide that one moiety of the funded property should be- 
long to the son and grandson, and the other moiety be 



1818. at the diqxMal of bis executors. This ooqstnsotitaii ap- 
peals best to reooDcile the whde wiU^ and exeoHtfla.tbe 
testator's natural intentioa of providing for bis dau^tsr, 
and securing protection toher^ with an eventual power 
to die executors in case of non-compliance; regulating 
the disposition of both species c£ property, aftcar . tbe 
death of the daughter. It would be most unnatmil thit 
the ill usage or neglect of the husband, which rendered 
her a more just object of attention, should dq>rive her 
of a provision during her life. The misconduct iof the 
husband ought not, and could not be intended, to 
operate in abrogating the bounty bestowed cm die dai^h- 
ter. The words here introduced, <^ given for the b^ 
nefit of my daughter^" are evidently terms of rderenoe^ 
not otsL new bequest; for they cannot be understood as 
a bequest of capital : after the death of the daughter this 
was to go to. the son and grandson, but would operate 
to give to the daughter the interest. When on <me ooai^ 
st)ruction the effiact of the second part of the will» r^ap 
live to the same subject and the same object^ would be 
to reduce the gift in the former part, contrary (o evefy 
l^babiUty of intent, to the prejudice of the principal 
aki|ect of the t^tatoi^s bounty, the Court must indioe tp 
a diffecent construcdon. 

Tbe concluding clause, ^^ the whole of piy property,** 
&c. (a), may be fairly understood to express his inten- 
don, if tbe stm-in-law was removed, to give die whole 
to the daughter. Supposing that the son had died 
dimng die daughter's life, notwithstanding the interm^ 
diate clauses, under the last clause the daughter would 
take the whole* What then would have become of that 
which is supposed to be a substantive independent gift 
.of one moie^ to the executors? In the event of the 

(a) Anie, p. lau 



son's deatfi in her life, the whole devolves to tlie 1818. 

dailgfater. That manifests the testator^s intention, that his jJeunTT^ 

daaghter shoald take the whole, unless in certain events ^ v. 

II ^ J New. 

larly mentioned. 

The best construction, though not unattended with 
difficulties, is, that it was the testator^s purpose to give 
the whole to his daughter for her life, to give the houses 
and lands to the husband, and to provide for an event 
not improbable, non-compliance with the terms of the 
deed. Nothing short of imperative words could com- 
pel the Court to declare thai it was the intention of the 
testator to deprive his daughter of the funded property^ 
fer the benefit of his four executors, one of whom had 
beoi an olgect of his bountjr to the extent of 200/. per 
annmiL The general and loose form of the gifl to the 
executors, denotes a gift to strangers, only in the event 
of the misconduct of a prior legatee. 

This construction renders it unnecessary to consider 
the subordinate (juestions. 

** ICs Honour doth declare, that the Defendant, Ann 
GkttfAierj is entitled to the use of the testator's furni- 
ture fi>r life^ and doth order that an inventory be made 
therec^ sigtied by her and the other Defendants, the 
executors ; and it is ordered, that two parts be made 
thereof and it is ordered, that one part be deposited 
with the Master; and his Honour doth declare^ that she 
is also entitled to a life-annui^ of 200/. charged on the 
real and personal estate ; andsubject thereto, doth also de- 
dare^ that the Plaintiff, Sarah Ann Munydrd^ is entitled 
for her separate use, to the interest and dividends of the 
testator's personal estate and funded property, and to 
the rents and profits of his real estate, for her life ; and 

Vol.111. K doth 




doth declare^ that the said Defendant, Joseph Muny&rd^ 
having executed the deed, and in other respects con- 
formed to the directions contained in the testator's wifly 
has entitled hunself to such eventtral beh^t lb and out 
of the testator's estate, as in the testator's will mention- 
^ ; and upon the death of the PIamti£^ he, or anj 
other person interested in the estate of the testator, are 
to be at liberty to make such application to the Court in 
regard thereto, as they shall be advised ; and his Honour 
doth declare, that the Defehdants, the ejcecutord of th^ 
testator, take no beneficiJEd interest, as such executorsi 
imder the said testator's ^Vl\.** Reg. Lib. B. 1818, Jfbl. 

J«/jf u. Exparte PRICKETT, in the matter of the Duchess of 

NORFOLK, a lunatic. 

ment of the 
cocts of 
granting a 
lease of a lu- 
natic's estate, 
between the 
estate and the 

nPHIS petition, presented by one of the receivers ap- 
pointed in the lunacy, prayed the confirmation of 
the Master's report, that it would be for the benefit of 
the estate of the lunatic that a lease should be grtoted to 
E, Stonej of two farms described, on the terms specified, 
and a reference to approve a lease, and taxation 6f - IKe 
costs of the petitioner, and the next of kin, and coniiifdt- 
tees of the estate of the lunatic, relating to the prbpldStil 
for and granting the lease, to be p&id by the petition^, 
and allowed in passing his accounts. 

Mr. ifortCfi^ for the petition; Mr. BeUy for the dftb- 
mittee of the estate; Mr. Wetherel^ for the next oifldb. 

The LoitD Chancrlloh. 

The usage in lunacy is, that the committee pap tiie 




W!pm\9m of the inqutryi and the lessee of the lease*—* 
Take the order in those terms, (a) 

The order durected the Master to tax the petitioner, 
and jfehe committees of the lunatic's estate, and the next 
of kin of the lunatic, their costs and expenses incurred 
about the proposal for granting the lease, and of the ap- 



{a) In Chancery. 24th May, 1788. 

Exparte JERMYN. 

Petition in Lunacy. 

. Upon reference to the solicitor, that this was a very 
Master to inquire whether old lunacy, and that this lease 
it would be for the benefit of had been from time to time 

renewed in the name of the 
committee, but whether the 
lease subdistiDg at the time 
of the lunacy was made to 
the lunatic himself, he was 
not able to inform the Court* 
His Lordship said, if the 
lease was at the time of the 
lunacy made to some other 
person in trust for the luna- 
tic, he sliould contini^e it so, 
as in that case he should not 
change the estate ; but if the 
lease was in the lunatic him- 
self, and only taken out of 
him by the act of the Court, 
the new lease ought to be 
made to the lunatic himself, 
and not to his committee. 
And his Lordship directed 
an inquiry as to this fact. — - 
From Mr. Cox's Notes* 

die lunatic's estate to renew 
a tease holden under a col- 
lage, and the Master having 
faperted it to he bepefip^al tp 
frocure such renewal, the 
present petition prayed that 
the report might be confirm- 
ed, and that the committee 
4ight 1»e at Hbetty to sur- 
render the old lease, and that 
« one m^t be granted 
by the college to the com- 
mittee for the usual term. 

the Lord Chancellor 
had some doubt whether the 
oew lease.ought not to be in the 
HMme^ef the lunatic, and not 
of jhis committee ; and asked 
whether this lease at the time 
of the lunacy was in the lu- 
natic himself, or in any other 
person in trust for him? To 
which it was answered by the 

A lease re- 
newed for the 
benefit of the 
ought to be 
tsk^n in the 

liw^ ¥it 
tiBoeof dieltt* 
otc^, hotif 
originally in 
tnwt for tlie 
lunatic, then 
to the com- 

K 2 






plication, and relating thereto; and those costs whent 
taxed, were to be paid by the petitioner out of the rents 
and profits of the lunatic's estate, and allowed in passing 
his accounts ; but the costs and expenses of the lease 
And counterpart were to be borne by the petitioner, (a) 

(a) It was understood that those costs should be paid hy the 




Feb. II. 

March 11.13. 


A modas of 
one penny in 
lieu of the tithe 
of hay of e? eiy 
mhafitant or 
occupier of 8 
bouse, and 
land at, or 
belonging to, 
or usMor en- 
joyed with, any 
bouse, is in- 
valid. The de- 
cree of the 
Master of the 
Rolls on the 
other modu- 
ses affirmed. 
clearly invalid 
as laid, the 
question of 
law is decided 
without di- 
recting an 
issue on the 
question of 


^T^HE decree pronounced at the hearing of this cause 
"^ before the Master of the Rolls (a), on the Sd of 
August 1810, dismissed the bill, so fiir as it sought aa 
account of the dthes of wheat, rye, barley, oats, peas» 
and beans; and directed a reference to the Master 
to take an account of all the other titheable matters 
and thmgs demanded by the bill, which the Defend- 
ants Thomas Jepsonj &C had, since the 25th day of 
December, 1804, had or taken upon or from off the 
several fiurms or lands occupied by them respectively, 
in the several townships in die pleadings mentioned, 
(except gardens, orchards, eggs, geese, hay, colts, pig8» 
honey, wax, and wood burnt in their houses ;) and an 
account of all Easter offerings, oblations, obventions, 
mortuaries, and other dues and ^payments which had 
become due from the Defendants respectively, to the 
Plaintiff William Joule^ since the said 25th day of D^ 
cembevj 1804; with the usual directions for taking the 

The decree then ordered the Plaintifis and the several 

(tf) 17 Vei. 473. 




Defendants to proceed to a trial at law at the Spring 
a88UBes to be holden for the county of Lancaster j in the 
year 1812, upon the several following issues : 1. Whe» 
tlier by ancient custom, used and approved within the 
said parish of Manchester^ from time whereof the me- 
mory of man is not to the contrary, hitherto there has 
been and now is due and payable at Easter in each 
year, or so soon after as lawfully demanded, by each 
and every inhabitant or occupier of a house situate in 
the several townships, precincts, and hamlets, in the 
parish of Manchester aforesaid, that is to say, Beswick, 
&&9 and in all the other townships, precincts, or ham* 
lets, in the said parish of Manchester^ or any or either 
of them ; and having any garden at or belonging to, or 
used and enjoyed with any house, and situate in the 
several townships, precincts, or hamlets aforesaid, or 
any or either of them, to or for the use of the rector or 
rectors for the time being of the said parish of MancheS" 
terj his or their lessee or lessees, farmer or &rmers, for 
every such garden so occupied by every such person, 
the sum of one half-penny, for and in lieu and in full 
satisfiurdon of the tithes of all the titheable matters and 
things yearly arising, growing, renewing, and increasing, 
and had and taken in and from every such garden. 





2. Whether by ancient custom, &C hitherto there 
has been and now is due and payable at Easter in each 
year, or so soon after as lawfully demanded, by and 
each and every inhabitant and occupier of a house situ- 
ate in the several townships, precincts, and handets, in 
the parish of Manchester^ &c having any orchard at or 
belonging to, or used or enjoyed with any house, and 
situate in the several townships, precincts, or hamlets 
aforesaid, or any or either of them, to or for the use of 
the rector, &c., for every such orchard so occupied by 
every such person, the sum of one penny, for and in 

K 3 lieu 





1818. lieu and in full satisfaction of the tidies of all the tithe- 
BLACRBuny ^^^^ matters and things yearly arising, growing renew- 
ing) and increasing, and had and taken in and from 
every such orchard. 

3. Whether by ancient custom, &c. hitherto there 
has been and now is due and payable at Easter in each 
year, or so soon after as lawfully demanded, by eadi 
and every inhabitant or occupier of a house situate ia 
the several townships, precincts, and hamlets, in the 
parish of Manchester^ &c«, to or (or the use of the rector, 
&c., for all hens kept by any such person on such iaud^ the 
sum of one half-penny, in lieu and full satisfaction of die 
tithes of the eggs or young respectively, of all audi hens. 

4. Whether by ancient custom, &c. hitherto there 
has been and now is due and payable at Easter in each 
year, or as soon after as lawfully demanded, by eeoh 
and every inhabitant or occupier of a house situate in 
the several townships, precincts, or hamlets, in die 
parish of Manchester^ &c. and having any land at or be- 
longing to, or used or enjoyed with any house, and situ- 
ate in the several townships, precincts, or hamlets afore- 
said, or any or either of them, to or for the use of the 
rector, &c., for all geese kept by every such person 
on such land, the sum of twopence, in lieu and full sa* 
tis&ction of die tithes of the eggs and young respeat^ 
ively, of all such geese. 

5. Whether by ancient custom, 8cc. hitherto there 
has been and now is due and payable at Easter in each 
year, or so soon after as lawfully demanded, by each aiid 
every inhabitant or occupier of a house situate in die 
several townships, precincts, and hamlets, in the parisli 
of Manchester^ &c. aforesaid, that is to say, Biswick, ftc: 
and in all the other townships, precincts, or haittlM, in the 

14 said 



laid parish of MaTickestcTy &c. (save and except as to the 1818. 
tithe of hay of some parcels of land situate in the town- ulaolwilu 
ships of Manchester^ in the answer of the Defendants men- v, 

tipned,) or any or either of them, and having any land at 
%r belmging to, or used or enjoyed with any house, and 
situate in the sever^ toi^nships, precincts, or hamlets 
af9|:;^aid| or any or either of them, and producing 
titl^eal^le matters and things to or for the use of the 
refCtor^ &&, the sum of one penny, fpr and in lieu and 
m fujl ^ffitis&Qtipn of the tithes of all hay of every such 
l^l^l^faitaiKt or occupier having any such laud as afore- 
sfidy prodiicinghay,whet]^rsuch quantity* be moreorless. 

6. Whether by ancient custom, &c. hitherto there has 
\^eea and now is due and payable at Easier in each 
year^ or so soon after as lawfully deinaanded, by each 
aod ^very inhabitant or occupier of a house situate in 
tbe several townships, precincts, or.hamlets in the parish 
oSManchesUrf &c. and having any land at or belonging 
to^ or used or enjoyed with any house, and situate in 
the several townships, precincts, or hamlets aforesaid, 
or any or either of them, to or for the use of the rector, 
&C., for every colt fallen in such lands, the sum of four 
pence, in lieu and in fiill satis&ction of the tithes of 
eveiy such colt. 

7* Whether by ancient custom, &c. hitherto there 
}|as been and now is due and payable at Easier in eacli 
yiear^ or so soon after as lawfully demanded, by eac)i 
^4 ^^ inl^^bitant or occupier of a house situate in 
the several townships, precincts, and bfimlets in the pa- 
rish of Manchester aforesaid, and having any land a^ or 
belonging to, or used or enjoyed with any house, and 
situate in the several townships, precincts, or hamlets 
aforesaid, or any or either of them, to or for the use of 
the rector, &c., for every farrow of pigs faiTowed on such 

K 4 land, 






land, the sum of three-pence, for and in lieu and in fell 
satisfaction of the tithes of every such farrow of pigs. 

And it was directed that the Defendants in this cause be 
Plaintifis at law, and the Plaintiffs in this cause be De^ 
fendants at law, who were forthwith to name an attorney, 
accept a declaration, appear, and plead to issue ; and it 
was referred to the Master to settle the issues in case the 
parties differed about the same. And it was ordered, that 
all deeds) books, papers, and writings in the custody or 
power of any of the parties, be produced and lefl with 
the Master upon oath, as the Master should direct; 
and that the depositions of such of the witnesses exa- 
mined in this cause as should be dead or unable to 
travel at the time of the trial, be produced, and read in 
evidence at the trial of the issues (saypg just excep- 
tions); and it was ordered that all the leases, tithe- 
books, and other documents which were produced, and 
given in evidence on the bearing of the cause, or before 
the commissioners named in the commission for the ex*^ 
amination of witnesses, be also produced on the trial of 
the several issues at law. And his Honour reserved 
the consideration of the costs of the dismissal of the bill 
so far as it respects the demand of the tithes of com and 
grain, and also of the rest of the costs of the suit^ and 
of the trial of the issues, and of all further directions 
until afier the Master should have made his report, and 
the trial of the issues should have been had ; and any oi 
the parties were to be at liberty to apply to the Court as 
as there shall be occasion. — Reg. Lib. A. 1809* 
fol. 1383— 1387. 

From this decree both the Plaintiffs and the De* 
fendaiits appealed, {a) The Plaintiffs appealed from so 

(a) 3 Vcs. ^ Beam. 959. 




much of the decree as directed issues with respect to the 1818. 
tithe of hay, of gardens, of orchards, of hens, of geese, ^~ " ^ 
of colts, and of pigs; and as reserved the consideration of «. 

t^ costs of the dismissal of the bill, so &r as it respected 
the demand of the tithes of com and grain, and of the 
Test of the costs of the suit. 

The Defendants appealed from so mudi of the decree 
as directed an account of the tithes of milk and calves, 
and agistment of cows not milked, and of the tithes of 
potatoes or other small praedial tithable matters; and 
insisted that issues ought to have been directed to try 
the moduses of Hd. for each cow producing a calf 
within the year, in lieu of the tithes of the calf and milk 
of every such cow ; and of l^ for each cow called a far- 
row or barren cow, in lieu of the tithes of milk of such 
cow, if milked, and of the keep or feed of every such 
cow, if not milked; and of Id. and 2d. for the small 
pnedial tithes of lands cultivated by the plough, and 
called the plough and half plough. 

The cause now coming to be heard on appeal, tlie 
ipefendants objected a want of parties. 

Sir Samuel BcmUly for the Defendants. 

The bill 'is filed by the warden and all the fellows of 
Christ College^ Ma^ichestert since the hearinj^ two fel- 
lows have died, and two new fellows have been elected 
m their place ; for the same reason which rendered it 
necessary to have all the original fellows parties, the new 
fellows must be parties : at present no one sustains their 
interest ; the fellows being Plaintiffii in their individual 
characters, not as members of the corporation, the de- 
ceased are not represented by the survivors. Among 







other reasons, the new fellows are necessary parties io 
respect to costs, which the Cpurt has reserved. The 
corporation is not a party to the suit ; and if the D^ 
fendants are eventually entitled to costs, they must lie 
recovered by attachment against the individuals, not by 
sequestration against the corporation. The cause is 
entitled not the Corporation of Manchester^ but Blackburn 
and others, against Jepson; and the petition of i^peal 
is presented i^ider that title in the names of three living 
persons and twp dead* 

Mr. Bell and Mr. 4gttr for the Plaintiffi. 

It is opt necessary tj^yt all the members of the oor* 
poration should be pftrties. The decree declares that 
the Plaintiff Jaule^ not the i;K>rporation, is «ntilled Io 
(he tithes. 

A suit by a 
does not be- 
come defective 
on the death 
of some of the 
otherwise of a 
suit by the 
members in 
their indivi- 
dual charac- 

Right of Pe- 
fendants un- 
der a decree 
costs, to a 
continued re- 
of all the ori- 
ginal PlaintifFky 
(though not 
necessary par- 
ties^, as a se- 
curity for 

The Lord Chakcellor. 

The question must be decided after an examination 
of the form of the decree: — if the PlaintiflEs sue as a 
corporation, there is no defect of parties ; if they sue as 
individuals, the objection must prevail If it was ori- 
ginally necessary to make the warden and fellows parties 
to this suit, or if, though not from necessity, they have 
been parties from the beginning, and there is, by the 
decree, a reservation of costs, the Defendants are clearly 
entitled to the same security for costs, which was ten- 
dered to them in the institution of the suit ; and that, 
notwithstanding that the Plaintiff Joufe alone is dedaeed 
entitled to the tithes. 

The LfORD Chancellor. 

A very material fiict is^ that the Defendants^ subse- 



qoendy to the appeal presented by the Plaintifib) them- 1818. 

selves presented an appeal {a), entitled in the same 

manner, and petitioned that their appeal might be heard 

at tbe same time with the Plaintiffs'. Is not that a waiver 

of the objection for want of partly ? Proceed with the '^pril 7, 


Six Samuel BomiOy. 

Tbe Defendants* petition of appeal could not be other- 
wise entitled ; thqr could not appeal in any other cause. 
If a suit has become defective by the death of parties, 
wrhich renders necessary a bill of revivor or supplement, 
that olgection cannot be waived. 

The LoHD Chancellob. 

Is not the feet of your petition evidence that you Objec^oni for 
consider the information, however informal, as the ties removed 
information of the warden and fellows ? (6) S^tf ^^ 

(a) 2 Ves. Sf Beam. 359. 
(i) The followiog cases on 
objections for want of par- 

ties, are extracted iromMSS. 
in the possession of the 

Trin. 16 Geo. 2. 1742. 
Anok. in Chancbrt. 

per Lord Hardtoiokgy cessary to make such con- ^J^« ^ * 

Chancellor, that where a bill veyance must be made par- ^^^^ * ^^"^ 

k broug^ for a partition, a ties, and brought before the 

eoaveyanoemust be decreed. Court. Mr. Case's MSS. 
and dierefore all parties ne- 

In Ch ANCERY. — Trin. 21 & 22 Geo. 2. 1 748. 
PIERSON V. ROBINSON, executor of Foster. 

Upon an account made up tain of a ship, and Foster One of two 
between the Plaintiff, as cap- and Barclay, the two part- ^^^^^^y. 






The counsel then proceeding to argue the case oi^ 
appeal, a question arose which side should begin ? 


iog assigned 
his share to 
the other, the 
former is a ne- 
cessary party 
to a bill by a 
creditor of 
both against 
the rqiresen* 
tatiresof the 

owners thereof, it was agreed 
that Foster and Barclay were 
indebted to the captain in 
60^., and that the diip was 
liable thereto. Foster after- 
wards buys Barclay's share 
in the ship, and dies. 

And abill was now brought 
against the executor of Fos* 
ter only, for a discovery of 
assets, and for a satisfaction 
thereout of the said debt; 
and the bill suggested the 
death of Barclay before Fos- 
ter, but it was not proved 
that Barclay was dead, and 
the Defendant answered that 
he did not know whether he 
was or not. 

The question was, whe- 
ther this debt is recoverable 
against the executor of Fos* 
ter only, or whether Barclay 
or his representative ought 
not to have been made par- 
ties ? And it was argued by 
the Attomey-Greneral for the 
Plaintiff, and by tht Soli- 
citor-General for the De- 

The Load Chancellor. 

Considering this as a per- 
sonal debt, whether Barclay 

is now living, or whether he 
died before Foster ^ (though 
at law the demand survives,) 
I am of opinion, that Barclay 
or his representative ought 
to be mado parties, because 
these are proper parties in 
account, especially ws be- 
tween the part-owners them- 
selves, and they may per- 
haps shew in the account a 
satisfaction of part of the 
debt. As to the ship itsdf» 
no remedy lies here m rewh 
the admiralty only having Jit* 
risdiction as against that; 
and there is no reason for 
charging the executor of 
Foster in respect of the ndue, 
because non constat what is 
become of the ship ? Be- 
sides, this bill is not adapted 
to such a demand, it being 
only for satisfaction out of die 
asseU. The Court* diere- 
fore, can only decree for a 
moiety, or order the oanse 
to stand over, with liberty to 
add parties, and the PlaiBlir 
to pay the costs of the day. 

And the cause was ad- 
journed for him to make his 
declaration. MSS. 




The Loud Chancellor. 1818. 

The original appeal, and the cross-appeal together, Blackburk 
tiring the whole case before the Court; and it cannot 
be rjg^t that the appeals should be heard as if they were 



In Ch ANCXRT. — 21 & 22 Geo. 2. 1748. 

BSL for the ddivery of a 
of plate and jewels, 
ftmuoi originaUy in 1675» 
^ Ifr. SavSle by one RaiOf 
and lea by SaviOe in the 
mitody of Tancred^ with 
wliooi SofMe lodged, and 
who always acted as his 
agent ; and it appearing by 
the Defendant's answer, that 
indie chest there b abox of 
jewds, entitled, ** a particu- 
lar of jewels belonging to the 
Duke ofDevonshirei* and that 
tins the Defendant informed 
the Plaintiff of before the 
bringing his bill, it was ob- 
jected by Mr. Br&wn for the 
Defendant, that the repre- 
lentatiTes pf the Duke (now 
deoeased). ought to be made 
parties, that the Defendant 
nay be safe in delivering up 
tte jewels to the proper 

But the Lord Chancellor 

deariy overruled the olijec- 
tion, because, as these goods 
appear to have been left with 
jfancr^forsafe custody only, 
he is obliged to restore them 
to the person depositing 
them, and the title of the 
Duke's representative (if any) 
will remain the same against 
the person to whom they are 
delivered. If Tancred was 
a pawnee only, he b com- 
pellable to deliver them up 
to the pawnor, not only here, 
but also in an action of trover 
or detinue. 

Decreed, therefore, (itUer 
alia\ that the chest and every 
thing in it be delivered to 
the Plaintiff, but without 
costs on either side, because 
the paper written as above, 
though it be no defence, yet 
b some excuse to the De- 
fendant for refusing to de- 
liver the jewels. MSS. 

entitlea to a 
part of them 
are not neoei- 
saiy parties. 

(a) 1 Fes. 101. 





appeals in separate causes. Which side is entitM to 
begin, depends much on the question, Which has ifiost 
to complain of in the decree from which they appaid? 


When on a 
bill for an in- 
junction in an 
ejectment at 
Plaintiflf*s te- 
Yiinit ongbt to 

Trin. l^Geo.2. 

The bill was by the owner 
oflands, for an injunction to 
stay the I>efbDdant's proceed- 
ings at law, upon an eject- 
ment against the Flaintiff's 

Demurrer, that the tenant 
was not made a party to the 
biUyandthe demurrer allowed; 
but the Lord Chancellor said 

if the Plaintiff had been made 
a Defendant at law, as he 
m%ht have be^iit h^ liiauld 
not have thought it neceiMiy 
to have made the tena«4..a 
par^ to his bill, notwithslQaiid^ 
ing his being a Co-defend 
ant; but as he is d^ only Dte^ 
fendant at law, he must h€ ^ 
party here. Mr. Ca«tf'« M88. 

LineMs^Inn^HaU^ ISih January^ 178S. 

Whether a 
demurrer for 
want of par- 
ties should be 
to the whole 
bill.— Qturr^. 

The bill was brought by 
the East India Company for 
an injunction to restrain the 
Defendant^ Cola^ (among 
others^) from proceeding at 
law on a bond given to him 
by the DefendMits, Herbert^ 
CokSfand Palmeryin the name 
of the said Company. The 
bill stated several transac- 
tions by the Defendant, Her- 
bertf in conjunction with 
and Kirkham, both 
since dead, acting together 
as servants of the said Com- 
pany, on a particular expe- 
dition, and afterwards trans- 

actions by the said De- 
fendant, Herbert^ acting with 
the Defendants, Coles find 
Palmer^ in the same cafiar 
city, and required a disco- 
very of all those traqsactioas, 
and relief in respect of all of 
them, leaving a blank for the 
names of the representatives 
of and Kirkhamj and 

prayed the injunction on the 
ground that the bond was 
given to X^oks for a privatie 
debt of Herbert and Palmer, 
and that they were indebted 
on other accounts to the 
Company in a larger sum 




The rector complains that he has not received his tithe ; 
that the Defendants have insisted on moduses which 
are not valid, and have attempted to prove the fact of 






than the amount of the bond. 
The Defendanti Coles, demur- 
red to the whole of the bill 
for want of parties, Ibr that 
it appeared by die bill that 
the representatives of 
tad Kirkham were necessary 
parties, and yet they wet^ 
not before the Court. 

When the demurrer came 
on to be argued, the coun- 
^ for the Defendant assign- 
ed ore tenuis as another cause 
of demurrer, that the bill 
was multifarious; and it was 
agreed to be regula!r in point 
of form, to assign such new 
cause without its being en- 
tered on the record (a), and 
that it was not necessary to 
specify the parts of the bill 
in which it was multifari- 
ous. It was agreed on both 
sides that there were some 
parts of the bill to which a 
demurrer would hold for 
irbnt of parties ; but it was 
insisted by the counsel for the 
Plaintiff, that a decree might 
be made as to part of die 
transactions against Herbert, 
Cokif and Palmer, without 
involving the representatives 
of and Kirkham J and 

that the demurrer would not 
hold as to those parts. It 
was insisted by the coun- 
sel for the Defendants, that 
die demurrer was good as to 
the whole, inasmuch as it 
sufficiendy appeared by the 
bill, that the titinsacdons in- 
volved and Kirkham, 
and that the Plaind£& thought 
so by requiring discovery and 
relief against the representa* 
tives, and leaving a blank for 
their names ; or if a separate 
decree could be made s^nait 
Herbert, Coles, and Palmer, 
then that the bill was muhi- 
farious. They also contended 
that there could not be a 
pardal demurrer for want of 
pardes, but that a demurrer 
of that nature must extend 
to the whole bill. 

January 16. The Lord 
Chancellor was inclined to 
think that there could not be 
a partial demufrer for want 
of parties, and that, there- 
fore, a demurrer to the whole 
bill Was pi'oper, and had di- 
rected the register to allow 
the demurrer ; but upon Mr. 
Mitford^B mendoning some 
cases wherein such partial 

(a) Ante, vol.'L p.28S. 







modus, when the pleadings raise no question on which 
the proof can be admitted : on die other hand, the De- 

prior to a mort- 
gage, need 
not be made 
parties to a suit 
by the mort- 
gagee against 
uie mortgagor 
for a sale, but 
the estate 
must be sold 
subject to 
the annuities. 

demurrers had been allowed, 
Finchf lis., Atvsood v. //ato- 
kins; Finch 4/,, AsUey^nFouti" 
taincp 2 Cha. Cas. 197v Pres- 
tendens v. Decrees ; the Lord 
Chancellor ordered it to stand 
over to the next day of de- 

murrers; but the PlaintiflP'a 
counsel thought it would 
answer better their client's 
purposes to amend their bill» 
and pay the costs of the de« 
murrer. Mr. Coxa's MSS. 

At the Rolls, 22d June^ 1786. 

This was a bill brought by 
a mortgagee against a mort- 
gagor, praying a sale of the 
mortgaged estate. Two of 
the Defendants had annuities 
charged upon the estate, 
which were prior in point of 
date to the Plaintiff's mort- 

The Master of the Rolls 
said, that it was quite unne- 
cessary to bring the annui- 
tants before the Court, and, 
therefore, notwithstanding 
they appeared at the hearing, 
and consented to a sale of 
the estate, he dismissed the 
bill as to them, with costs, 

and said that the estate musl 
be sold subject to their ao- 
nuitiesn If the annuities had 
been subsequent to the mort- 
gage, in this case it might 
have been proper to Lave 
made the annuitants Defend- 
^ants, because the Plaintiff 
then could have compelled 
them to join in a sale of the 
mortgaged estate; but even 
in that case they would not 
have been necessary parties. 
Selvoyn and MUfinrd for 
Plaintiff. Brown for De- 
fendant. — From Mr. Romil^ 
/ys Notes. Lord Cokhe$Ur*% 

ROUTH V. KINDER and Others. 
Rolls, February 14th, 1789. 

Parties to bill Bill by A. on behalf of estates conveyed in trust to 

by creditors himself and other creditors, pay debts, for account of 

tMs for Mle! again*^ ^' *"^ ^'^ trustees of produce of sales and pay- 

9 ment 



fendants have appealed on the question of agistment 
only. If the interest of the suitor, which must never be 






raent of their debts ; B.*6 re- 
presentatives by their answer 
allege^ that not only C. but 
also D. were trustees, and 
that D. acted in the trust, 
although they do not know 
whether he received any part 
of the produce. Defendant^, 
objected for want of parties. 
Ken^ouy M. R. held D» to 
be an unnecessary party; 
and ArdeUf M. R. in the 
same cause, held the same ; 
and did not direct any inquiry 

before the Master upon this 
matter; sed qu. — for at 
the bar the general opinion 
was, that Z).'s representatives 
ought to have been parties ; 
nor could one creditor suing 
waive on behalf of absent 
parties, in joint interest with 
himself, the benefit or possi- 
ble benefit of any part of. the 
trust fund. — See Coxvslad 
V. Celi/f Prec. in Cha* 83. 
1 Eq. Ca. Ab. 73. Lord 
Colchester's MSS. 

In the Exchequer. Nov. 17th, 1790. 
ROVERAY and Another v. GRAYSON and Another. 

This was a motion to dis- 
solve an injunction on the 
cooling in of the answer. 

Burton and Daniel shewed 

The Plainti& were bail for 
one of the Defendants, sued 
at law by the Defendant 
Groyfofi, who, having got 
a verdict, was proceeding 
against them; and the bill 
set forth, that Grayson had 
pretended to have laid out 
various sums for the Defend- 
ant at law, Kulnhahzy which 
in fact he had never paid; 
that goods had been remitted 
to him to be sold, which he 

Vol. III. L 

had disposed of at an un- 
dervalue, collusively, and 
that most of them had been 
bought in on his own ac- 
count ; and it prayed an ac- 
count of all the mercantile 
transactions between Grai^' 
son and the Defendant at 
law, KuhihaltZy and that what 
appeared to be due from 
Grayson^ might be set off 
against the verdict obtained 
at law, and that the Defend- 
ant Grayson might ^e re- 
strained fromproceedinguntil 
the account was taken ; also, 
that the goods remitted by 
the Defendant at law toGroy- 


Injunction ob- 
tained by bail 
a^inst a cre- 
ditor aflcr a 
verdict dis- 
solved, the 
debtor, though 
a Defendant, 
not being 
within the ju- 







sacrificed to the convenience of the Court, requires 
it, the appeiJs may be heard as appeals in distinct 

causes ; 

soriy and in his hands, might 
be sold, and the produce 
applied in discharge of the 

Eyre^ Chief Baron, in the 
outset, asked Burton how he 
could make out any right in 
the Plaintifis to come here, 
without having the principal 
actually before the Court? 
He was a Defendant, but 
charged to be out of the ju- 
risdiction of the Court. What 
relief can bail be entitled 
to ? They have undertaken 
specially to produce the De- 
fendant, or pay the debt. 

Burtdn mentioned the case 
of co-obligors who were only 

But per Eyre, Chief Baron 
— Even they can not call 
on the obligee, if the prin- 
cipal obligor is not brouglit 
before the Court. The De- 
fendant at law must be made 
an effective party, either as 
Co-plaintiff or as Defendant 
actually before the Court and 
appearing. For here roust 
be a double account, you 
must at least have all the ne- 
cessary parties here. If you 
had your account, it could 



not bind the Defendant at 
law. He might come in af- 
terwards, and call upon the 
creditors to account upon the 
same grounds. If, indeed, 
you could fix collusion be- 
tween the principal creditor, 
it might be otherwise; but 
standing as it does, nakedly, 
I do not see how you can 
proceed. And so the order 
must be absolute for dissolv- 
ing the injunction. 

This being mentioned again yb 

Burton and Daniel at- 
tempted to shew that there 
were facts to fix a strong sus- 
picion of collusion on die 
Defendants. And the latter 
cited I Vern. 87. Israd ▼. 
Narboume^ to shew that the 
Court would give time to add 
parties, and grant an injifnc- 
tion in the mean time. 

EyrCf Chief Baron, ex- 
pressed his surprise at this 
being mentioned again ; and 
said, he thought the Court 
had, when the matter came 
on last,expressed their opinion 
as to a total want of equity 
in the Plaintiffs, standing in 
the situation in which they 




causes ; otherwise, I tliink that the party whose appeal 
rqiresents him to be most aggrieved by the decree 
should begin. 


stood at present. To grant 
an injunction in this case 
would be to put bail in a bet- 
ter situation than their prin- 
cipal could be in ; for had the 
principal lain by and suffered 
judgment to go against him 
at law, the Court would 
never have granted him an 
injunction on his coming here 
in that stage of the business. 

And as to the present Plain- 
tiffs, they are not at all dam- 
nified until they have paid 
the money — very different 
is the case in Vernon y for 
there the bail were principal, 
(it being a bond to the she- 
riff,) here they are only con- 
cerned collaterally. — Injunc- 
tion dissolved. — Lord Col- 
Chester's MSS. 





In Chancery. Nov. 13th, 1790. 

Objection for want of par- 
ties, because all the obligors 
in a bond were not before the 

It was stated in the bill, 
and admitted by the answer, 
that one obligor was out of 
the jurisdiction, and another 
was insolvent. 

In Madockg v. Jachon, 3 
AiL406.f Lord Hardvnche 
mys, that in equity all the 
obl^pors in a bond must be 
f&rtiea ; but Lord King held 
Nherwisein CoUins s.Griffithy 

Lord Chakcbllor. 

If you will sue in equity upon 

a joint and several bond, you 
must make all the obligors 
parties, to avoid circuity of 
suit ; but if one of the per- 
sons living (which is a stronger 
case than that of a dead per- 
son) be admitted to be insol- 
vent, surely it ought to be an 
answer to an objection for 
want of parties. 

I almost incline to say. that 
even in the case of a living 
party upon an admission of 
his being insolvent, he need 
not be brought before the 
Court; because if that fact 
be agreed upon, there can be 
no danger of circuity of suit 

To a bill 
against an 
obligor in a 
joint and se- 
veral bond, 
an insolvent 
need not be a 

L 2 








It was agreed that the appeals should be heard 
together, and that the counsel for die Plauitifis should 


where there can be no objec- 
tion to contribute to the de- 

The Chancellor recognized 
the case of Madocks v. Jack' 
sofif and seemed inclined to 
overrule the objection ; but it 
appearing that a mortgage 
had been made as a collateral 

security, and that some of the 
parties to it, who had been in 
possession of the niortgaged 
estate, were not before the 
Court, it stood over on that 

See Sir Daniel O'CarolTa 
casey Amb. 6 1 • — Lord Cotches" 
ters MSS. (2) 

(2) See Cockbttm v. Thompson^ 16 Vet, 396. Haywood^. Cheyy 
6 Madd. IIJ. 

In Chancery. Nov. 26th, 1790. 

The heir of a 
private found- 
er, who has . 
appointed no 
vi8itor,nDust be 
made a party 
to an intorm- 
ation for re- 
gulating a 
charity; but 
the Court, in 
favour of cha- 
rities, will di- 
rect an inouiry 
for the heir. 

This was an information at 
the relation of the inhabitants 
of a parish in Staffordshire ^ to 
Lave a school-master dismiss- 
ed for improper demeanour, 
and to have the charity re- 

Richard Cross of Baggiti' 
ton, in the county of Stafford^ 
by will in 1699, devised lands 
to A.f then minister of Fox- 
attt in the county of Stafford^ 
and his successors for the 
time being, and to B.y then mi- 
nister of Harmstall RidxoarCf 
in the same county, and his 
successors for the time being, 

in trust out of the rents and 
profits to erect a free school- 
house in K.J. Bromlet/f in the 
county of Stafford, provided 
the lord of the manor should 
grant a conveuient piece of 
ground for that purpose ; and 
that when the school-house 
was erected, they should ap« 
ply the rents and profits for 
the maintenance of a school- 
master to teach poor chil« 

Lioydy for the information, 
cited 1 Ves. 72., Attomey^Ge^ 
neral v. Smart, to '"'"ow that 
in the case of a privu.e cha- 

I3 rity 



Mr. Agar and Mr . Bell, for the Plaintifl; 1818. 

Olgected to the moduses as uncertab ; and subject to blackbvbm 



April II. 14. 

rity the Court will not dis- 
miss the information for want 
of form, but regulate the cha- 
rity as well as it can. The 
heir of the founder was want- 
ing in the case of Netvpori 
school, yet the Court direct- 
ed an inquiry for the heir, 
and did not order the cause 
to stand over for making him 
a party. 

So here the devise is to 
A. and B. and their succes- 
sors, ministers of two parishes, 
to employ rents for mainte- 
nance of a school-master, but 
no power to appoint one; 
and the rule is, that when the 
king founds, his successors 
are visitors. 2 P. W. 325., 
Eden v. Foster. But if a pri- 
vate man founds, his heir is 
visitor, unless the founder 
makes another man and his 
heirs visitors. 3 P. W. 145., 
Attomey-General v. Rigby. 

The heir of the grantor, 
therefore, shall nominate, and 
not the grantee's heir. 

Therefore here these mi- 
nisters had no authority, and 
the Court must find the heir 
who had authority to appoint 
a school-master ; and the le- 
gal estate descended to the 
heu: at law of this testator, 

the clergymen having no 
estate beyond their own lives 
by this will. 2 P. W. 125.. 
Attorney -General v. Ruper, 
The clergymen being only 
corporations for taking as 
parsons, and not generally for 
other purposes ; the rents and 
profits, therefore, belong to 
the heir, in trust for the 

Mit/ordy for the Defendant 
Gaunif contended that the 
testator having devised to the 
rector of Y. and his succes- 
sors for the time being, in 
trust to pay, the estate is 
vested in these successive 
rectors ; and they are the per- 
sons to regulate the cliarity, 
though accountable to the 
Court. The rector is not 
only a corporation to take 
lands for the benefit of his 
church, but also for charitable 
purposes. Duke*s Char. Uses, 
139. So in other cases, as 
JPfi/tooofiTs case, 4* Co. e^. The 
Chamberlain of London may 
take, &c. ; and therefore this 
estate vested in the two rec- 
tors, as tenants in common ; 
and they were to nominate, 
because they being to pay, 
and no other person having 
power to nominate, unless 
L 3 they 





They cited Took v. Ledgard {a\ Travis v. Oxton (6), 

Franklyn v. The Master, S^x. of St. Cross, {c) 


(a) 1 A'f^. 612. cit. 2 Gii;i//. of Whitehead v. jTrartV, 7 J&ro. 

588. P, C. ed. jTowi/. 49. 

{b) 3 Wood^ 523. 3 G««//.1066. (c) jPtmA. 78. 
1 Anstr, 508. n., under the name 

they nominate, there is no 
one to whom payment can be 
made. The heir of the donor 
ought not to have nomina- 
tion ; but if a necessary party, 
and not before the Court, yet 
the Court will not direct any 
inquiry ex necessitate. For 
in 1 Ves. 80., Attomey-Gene- 
ral V. Wycliffcy Lord Hard' 
•voiche refused it, the inform- 
ation not appearing to him 
to be proper. 2 Fes. 327., At' 
torney^General v. Middleton. 
The Solicitor-General, in 
reply, cited S Atk. 19S.y At' 
tomey'General v. Pricey to 
show that Latin and Greek 

are not the charity intend- 
ed to be dispensed in these 
schools to poor children, and 
therefore this charity wanted 

The Lord Chancellor. 

The heir at law should have 
been a party ; but I will not 
dismiss this information if I 
can get the heir before the 
Master by inquiry. 

Let the Master receive a 
scheme for the school, ac- 
cording to the nature and 
circumstances of the place 
where it is to be kept. —Lord 
Colchester A MSS. 

At the Rolls, 3d December^ 1790. 

To a bill of 
against the 
the mortgagor 
of another 
estate, as a 
rity, is a neces- 
sai^ party. 

The case was of a princi- 
pal mortgagor, and another 
mortgagor of an estate as a 
collateral security. 

His Honor determined, 
that a bill of foreclosure 
against the principal only 
could not he sustained, with- 

out making the other mort- 
gagor a party ; ]>ecau8e the 
other mortgagor has a right 
to redeem and be present at 
the account, to prevent the 
burthen ultimately faliing on 
his own estate, or at least 
falling upoa it to a larger 




Sir Samuel Bantilb/y Mr. Hart^ and Mr. WitUhropy for 
the Defendants, cited BenneU v. Bead (a). Let/son v. 
J^arsons {b) (remarking that the statement of the modus 

(«) 4 Gwill, l«72. 8 Afutr. (^) 18 Ves. 175. 
322. n. 



amount than the first estate want of parties. — Lord Col* 
might he sufficient to satisfy. Chester s MSS. 
Ordered to stand over for 

In Chancery. Mardi 12th, 1791. 

SHEPHERD and Others on behalf of themselves and 
Others, creditors of JOHN ROBERTS, Sen., and JOHN 
ROBERTS, Jun. - - - Plaintiffi; 

ARDSON, and MATTHEW PAUL, - DefendanU. 

Bill filed by Plaintiffs, who 
were creditors of the two 
Roberts^ who, in November^ 
1779f assigned certain pre- 
mises to Gminnetf in trust for 
all their creditors, and also 
entered into a joint bond and 
warrant of attorney to him, 
upon which judgment was 
immediately entered up. 

RobetU hadf prior to en- 
tering up the judgment, made 
a mortgage of his estate to 
Richardson, and at a date 
subsequent to the judgment, 
made a second mortgage to 

The bill was filed praying, 

that Gmnnet might be de- 
creed to account for what he 
had received under the deed 
of trust, and that Plaintiffii 
might be at liberty to redeem 
Richardson^ and that Paul» 
mortgage might be postponed 
to the judgment. 

Lord Chancellor dismissed 
the bill with costs against 
Fault as an imnecessary par- 
ty, the judgment having a 
legal priority; and he de- 
creed Gwinnet to account, 
and to put the judgment in 
force as far as it was availaUe 
at law. — Lord CokhesUrs 

4r is 

Judgment cr^- 
ditor prior to 
a mortgage, 
need not make 
the fubse- 
quent mort- 
gagee party in 
order to post- 
pone him 







is not correct) and no entry of the decree can be found in 
the Registrai''s book), Thomson v. Holt (c), PhiUips v. 
Symes (d), Manchester College v. Andrew {e\ Atkyns v. 
Ijord WiUofughhy de Brooke {f\ Williamson v. Lord 
Lonsdale {g\ Gills v. Horrex (A), Boscawen v. Ro^ 
bats (/), Scott V. Fenwick {k\ Brincklaw v. Edmunds (0> 
Gardiner v. Coo: (m), Vernon v. Waller, (n) 

In the course of the argument, the following remarks 
were made by 

The cases of 
Travii v. Ox" 
ton and Ben^ 
nelt V. Read 
and recon- 

The Lord Chancellor. 

In Bennett v. Read the modus was laid in persons 
resident and occupying, that is, inhabitants and occu- . 
piers ; here it is in the disjunctive, inhabitants or occu- 
piers; and for some purposes a person may be con- 
sidered as occupier of a house which he does not inhabit. 
The doctrine of Travis v. Oxton^ if different from that of 
Bennett w.Readyiiiow^ the latter is the more recent deci- 
sion, must prevail, since it has the autliorityof the House 
of Lords. I do not, however, consider the cases as con- 
tradictory. In the former case, I think that the intention 
of the House of Lords was to direct an issue on the 
question, not whether the modus was good, but whether 
that payment, whether good as a modus or bad, had 
been made in lieu of tithe of hay, in order to determine 
the first point in the case of a vicar — his title to satis- 
faction for tithe of hay; and they then seem to have, 
dealt with the case as if it had been admitted that the 

(c) 2Gunll.61l. 

(d) Bunb. 171. 2 Wood^ 228. 
\e) 2 Wood, 488. 

(/) 2 Anstt\397. 4 GwiU,H\2, 
Ig) 5 Pricey 25. 
(A) 5GwUL861, 

(i) 5 Gwill. 946. 3 Wood, 174. 

(k) ZGwUl.\2S0, 

(/) Bunb. 307. 2 Gw'dl. 711. 

(w) 2 Wood, 473. 

(it) 1 Wood, 300. 



payment was made in lieu of tithe of hay: and that 
amounting to proof of the vicar's title to satisfaction for 
tithe of hay, and the modus being bad, it followed that 
he was entitled to tithe of hay in kind. The decision in 
Bennett v. Bead seems to have proceeded on the ground, 
that every inhabitant was bound to pay a satisfiu^tion for 
tithe of hay. 

It will be necessary to consider, also, the mode of 
combining the present fellows of the college; and I 
apprehend that that must be done by a consent to be 
bound by the proceedings in this cause — a consent 
under the college seal, and by the individual new fel- 
lows; and that agreement may be recited in the order 
now to be made. 




7^ Lord Chancellor, {a) 

This was a suit instituted by the warden and fel- 
lows of Manchester collie ; and the Defendants, after 
stating the particular premises which have been in their 
occupation and possession, insist that by ancient custom 
used and approved within the parish of Manchester ^ from 
time whereof the memory of man is not to the con- 
trary, hitherto there hath been due and now is payable 
at Easter in each year, or as soon after as lawfully de- 
manded, by each and every inhabitant or occupier of a 
house situate in the several townships, precincts, or 
hamlets in the parish of Manchester^ — (I take it for 
granted, but I wish to be informed whether I am correct, 
that in the record itself the expression is *^ inhabitant or 
occupier," and not *^ inhabitant occupier;" because a man 
may be an inhabitant occupier, but he may also be an oo- 


F^. 1 1. 

(a) Ex relalione. 







cupier widiout being an inhabitant : an occupier of land 
need not be an inhabitant, nor need an inhabitant of a 
house be an occupier of land (a),) — and having any 
garden, orchard, or land at or belonging to, or used or 
enjoyed with any house, and situate in the several 
townships^ precincts, or hamlets aforesaid, or any or 
either of them, and producing the several titheaUe 
matters or things next after mentioned respectively, or 
any of them, to or for the use of the rector or rectors 
for the thne being of the said parish, his or their lessee^ 
farmer or farmers, the several sums follonving. So 
that the description of persons entitled, if any persons 
are entitled, to avail themselves of this modus, is an in-* 
habitant or occupier of a house situated in some of these 
townships, having any garden, orchard, or land at or 
belonging to, or used or enjoyed with any house, and 
situate in these several townships, and producing the 
several titheable matters and things next after men- 
tioned. The description is " inhabitant or occnpier,'* in 
the alternative; but, whether he is inhabitant or oo- 
ciqiier, he is to have a garden, orchard, or land : whick 
word ^^ land'' will include any quantity of land ; birt it k 
to be at or belonging to, or used or enjoyed with the 
house, and situate in the several townships and pre- 
cincts, 8kc. I do not find that in the subsequent part of 
the {deodings, tlie Defendants have inserted any avei^ 
ment that their land, gardens, or orchards were at or 
belonging to, or used or enjoyed with, their respective 
houses, I do not find any averment of the sort. Then 
they states for every such garden so occupied by every 
such person, a sum of one halfpenny, to be payaUe for 
and in lieu and full satis&ction of the tithes ; and thej go 

(a) On examination of the record the expression was found to be, 
inhabitant or occupier/' 

til rough 


through all the several modoses, every one of them a&> 181 8. 
fected by the descripdon, such as is stated, of the per* 
SODS who chtim the benefit of them. Having so done^ 
they insist tliey are intitled to the benefit of all these 
imoduaes, and a vast deal of evidence has been gone inte^ 
The principal and most material question I appr^oid 
to be with respect to the tithes of hay : and they say, 
that such persons so described are liable to pay one 
penny for and in lieu and in full satis&ction of the 
tithes of all hay of every such inhabitant or occupier 
having any such land as aforesaid producing hay, 
whether such quanti^ was more or less, save and except 
as to some closes which are particularly described as 
excepted doses. The way they allege their right to pay 
thb penny in lieu of the tithes of hay is obviously this, 
that they are to pay only a penny, whether they have a 
thousand acres, or whether they have only one acre ; 
bat with this qualification, that the land upon which 
the hay is to be produced is to be land used and enjoyed 
with the house ; not stating whether the land of which 
they themselves are in possession is land used and en- 
joyed with the house, and much less, stating that it had 
been anciently used and enjoyed with the house. 

His Lordship then read the judgment of the Master 
of the Rolls on the original hearing, and proceeded 

Yon observe that this direction, is, to try the &ct 
l>efbTe the law is ascertained ; but if the modus Is laid 
*ti such a way that it can have no validity in law, 
the question will be, whether the Court ought not in 
the first instance to decide against the modus, because 
It is not a legal modus, even if the feet would support 
a modus that was legal? The Master of the Rolls 







States his opinion, that the modus for gardens and 
orchards is well laid, notwithstanding they are not re- 
presented to be ancient gardens and orchards ; overrul- 
ing the objection that the modus was laid to be in sa- 
tis&ction of the tithes of all titheable matters and thmgs 
yearly arising. There appears to me to be a stronger 
objection than that which he overrules, viz. that the 
Defendants claim this modus to be in satisfaction not 
only of the tithes that are mentioned, but of all other 
tithes, or some of them. 

The Lord Chancellor then referred to Let/son v. Par* 
sons (a) ; to the judgment of the present Master of the 
Rolls in Buske v. Ijewis (&), (expressing doubt whether 
the Master of the Rolls had been correctly informed 
of the manner in which the modus in this case is laid^ 
which differs materially from the modus in Travis 
v. Oxton) ; and to the judgment of the Chief Baron in 
fViUiamson \. Juord Lonsdale; and concluded by ex- 
pressing his opinion, that the decision in the last case 
was ruled entirely by Travis y. Oxton; and OiBtBenndt 
v. Beadj if not distinguishable from Travis v. Oxton^ 
though later, cannot prevail against it, in opposition to 
the authority of the House of Lords. 

Umrck 11. 

The Lord Chancellor, {a) 

I hold the hay modus bad, on principle, and on the au- 
thority of Scott v. Fenwicky Travis v. Oxton, Williamson 
V. Lord Lonsdale, and Buske v. Ijewis ; and I think the 
present case distinguishable from the case of Bennett 
V. Read in this respect, that if the owner there had 
parted with the land and retained the house, he was 

(a) 18 Ves. 175. [b) 3 Jac.^ Walk. 

(c) Ex rekUume. 



liable to pay, which is not the case here. Whether that 
distinction is or is not solid and substantial, it is suffi- 
cient that the cases are disUnguishable. This case must 
be decided upon different principles. 




The Lord Chancellor, {a) 

I have examined all the moduses in this case, and I 
see no ground for varying the decree of the Master of 
the Rolls, exc^t as to the hay modus. That modus is 
tiad ; the remainder of the case has been properly dis- 
posed of. 

March 15. 

Mr. Agar insisted, that the Plaintiff was intitled to 
both the deposits, and that the Defendants should be 
ordered to pay the costs of their appeal. He cited Lord 
Limghboroij^h*s order of the 7th of Feb. 1 794. (&) 

The Lord Chancellor, {c) 

The decree will direct an account of the tithes for the 
time past, and the representatives of the late warden 
will receive what accrued during his life. On the ques- 
tk>n of costs, it is a very material fact that the tithes now 
claimed were never before paid; all the predecessors of 
the Plaintiffs have been content with a sum now stated 
to be 15,000/. a year, less than they claim. The 
omission of demand in all times past, encourages the 
honest belief that tithes are not due. It happens, I be- 
lieve very oflen, the law being that mere non-payment 
of tithes is no defence against payment, that non-pay- 

March 15. 

(a) Ex relatione, (r) Ex relatione, 

(b) Orderi in Chancery, ed. Beanies, 458. 







nient takes place from year to year and century to Gen«> 
tury, till the evidence of the legal right of non-payment 
is lost. It must be also recollected^ that the Plain- 
tiffs have failed in every point of their appeal, except 
the article of hay. 

On the question of the modus of hay, though I have 
little or no doubt that I am right, yet I cannot forget 
that Sir William Grant was of opinion, tliat the &ct of 
the modus ought to be tried before its validity was de- 
cided. With all deference to tliat great judge, (bappy 
shall I be, if my memory is as much respected as his,) 
it appeared to me, that to try the fact of the modus was 
to begin at the wrong point, if the law is that the facts 
when found will not constitute a valid modus. Whether 
the modus would be valid, is a question depending much 
on the audiorities of Travis r. Oxtarij and Bennett v. 
Bead: cases in which, though I have satisfied my own 
mind that they are substantially different, yet Sir WU^ 
Ham Grant expressed himself unable to discover a pre^ 
cise distinction, {a) On this modus, therefore, the De- 
fendants had solid ground for resisting payment of the 

I shall give no costs of the appeal ; the general costs 
of the cause ere reserved, and the Plaintiffs are entifthMl 
to both deposits. I^ before the answer was filed, I had 
read all the cases which have been cited, I thiidL that I 
could have laid a better modus, {b) 

{a) 17 Vet, 476., and see 5 Price^ ZB, 

Modus al- 

(b) In the Exchequer. Pasch. 5 Geo. 2. 


The PlaintilF, as rector of for titlie hay and potatoes in 
Whitechurchy brought his bill kind, and for the agistment of 

(l) Rqiortcd on another point, Bunb* 293. 






March 1. 

rilHE bill stated, that in 1812, the Plaintiff being A purchaser 

seised in fee-simple of certain lands situate in the titled to tT 

parish of Offley^ and also under an act of parliament for inrntigation 

en- dor's title, 
. notwithstand- 

barren cattle. Against the 
claim of tithe hay, a modus 
was pleaded in bar, (viz.) 
that within the parish of 
WhUeckurch there were seve- 
ral townships, and tliat the 
occupiers of each township, 
time out of mind, had paid 
certain sums of money in lieu 
of tithe hay, which sums were 
collected by the respective 
constables, and then the whole, 
which amounted to I5s. ^id., 
was by some of them paid 
over to the rectors as a mo- 
dus for the whole parish. Ei/re 
Scijt. pro quer. objected to 
the modus, that as it was laid 
that the occupiers of each 
township have paid the cer- 

inc possession 
taEen, acts of 

thought, the rector could have o.^n«»hip in- 
^^ J . ^ ,. . . cident to pos- 

no remedy against a division session and 

or township. preparation of 

Reynolds, Chief Baron, oh- » conveyance, 
served, that, according to this 
modus, the rector was only 
concerned with each ville in 
general, and in the same man. 
ner must have his remedy 
against each; which Carter 
B. said was no more than what 
was done every day in case of 
chief rents: but afterwards, 
it appeared by the proofs that 
it was usual for the rectors to 
deliver schedules to each con« 
stable to collect by ; and by 
some of them it appeared how 
much each inhabitant ought, 
and was used to pay, towards 

tain sums, if any occupier of the sum. On this the Chief 

land in a township has not Baron observed, that in sudi 

paid his share towards making case the rector's remedy 

up the sum belonging to that seemed to be against each 

township, it will be a variance; particular landholder, for his 

and it appears that several of share. — Ordered to stand over 

the lands have never been till next term, the Baron go- 

rated. Besides, to make any 
modus good, it is necessary to 
show how the rector may re- 
cover the satisfaction ; for, he 

ing to tlie House of Lords. 
Note. Noneof thePlaintifi**s 
proof was read, and but about 
half of the Defendant's. 








enclosing lands in the parish, and a deed of exchange made 
in pursuance of the directions of the act, seised in Tee-sim- 
ple of certain allotments or enclosures of common field in 


Trin. 6 Geo. 2. 

The proofs in the cause 
being read, and observations 
made thereon by the counsel, 
Reynolds^ Chief Baron, said, 
wherever a fact is litigated, 
and the law resulting from it 
is ' dubious, we will always 
have the fact determined be- 
fore we judge of the law 
arising from it. This modus 
seems to extend no further 
than the townships, and the 
rest to be an historical ac- 
count how it is raised, and 
that the several proportions 
have been collected among 
the occupiers. There is no 
reason why this modus, as 
alleged, should not be good, 
for it has all the requisites of 
a good modus. This must be 
the case where there is a mo- 
dus for a great quantity of 
land, which after is disposed 
of intodifierenthands; though 

the remedy becomes more in- 
tricate, yet the rectors must 
have it against all those who 
have the land. 

But several facts appear* 
ing doubtful to the Court, 
the principal of which was, 
whether all occupiers of 
the lands in each township 
had contributed to the sum 
to be raised by the respeetive 
townships, an issue at law 
was directed to try the mo- 
dus. — Per tot* Curiam, 

N. B. — Mr. Bunbury said, 
when this matter was before 
the Court several years ago, 
it was adjudged against the 
Defendants, because the mo- 
dus was laid to be payable 
by the owners and occupiers, 
which was held to be uncer- 
tain, because an owner is very 
different from an occupier.— 
Sir Clement fVear^s MSS. 

CART V. HODGKIN and Others. 
In Chancery. May 20. 21 Geo. 2. 1748. 

Modus of 5#. Bill by the administrator 
payable an- de bonis non of William Cart, 
^Sy^d '«^^ ^Ctor of Stony Stanton, 

in com. Leicester ^ for an ac- 
count and satisfaction .of 
tithe bay^ and the small tithes 




the parish, offered the premises for sale hy public auc- 
tion, on the l^th oi June^ 1812, under ponditions that 
the purchaser should pay a deposit of 20 per cent, and 





of the said rectory, due to 
him from 1722, when Cart 
first became rector, to 1735, 
when he died. The Delend- 
ants in their answer, as to 
the small tithes, set out, 
<* that there is a modus or 
composition of 5«m which, 
from time out of mind, has 
been paid out of every yard 
land in the said parish of S., 
in lieu of tithes, and that it 
ougHt to be received yearly 
and every year as a modus ;" 
and further alleged, that 
Cart^ the rector, received it 
for one year from the De- 
fendants, '* the occupiers of 
some of the yard lands, and 
the other occupiers and farm- 
ers of the said other yard 
lands ;" and that Dr. Geary, 
his predecessor, received it 
" from the occupiers and 
farmers of the said yard 

It was objected by Mr. 
IVUbraham and others, to this 
modus, 1. That though it 
be not now necessary (as it 
was formerly ) to lay a mo- 
dus as payable on such a par- 
ticular day, yet it must be 

laid to be paid annually, (in 
which case it will be under- 
stood to be payable on the 
first day of the year), and 
this is not alleged in the pre- 
sent case. 2. It is not stated 
by whom the modus ought to 
be pifid, which should be 
shewn, that the person may 
be known against whom the 
action must be brought. A 
modus (generally) is payable 
by the occupier, but not al- 
ways ; for sometimes it is paid 
by the lord (Cro. £/. 599.)^ 
and sometimes by the occu- 
pier only of part. S« This is 
staled to be a modus, or com- 
position (in the disjunctive), 
which is very inaccurate, 
these being of a different na- 
ture ; for a composition is 
fluctuating, but a modus not 
so. And in the ^ate case of 
Hardcastle and Slater ^ whece 
a modus was laid to be paid 
by the owners and occupiers, 
it was held ill, these being 
di£rer.ent. (a) 

On the other side, it was 
argued by ^v. Murray (So- 
licitor-General,) that there 
is a great difference between 

land, if valid* 
— ■RefMPeieii- 
tativet of a 
rector not 
permitted to 
enforce pay- 
ment of tithes 
whidi the rec- 
tor never de- 

{a) According to the printed reports of this case, 3 Atk. 845., 
AmbAl^ S Owiil. 784., the mpdus was allowed. 

Vol. III. M bring- 





sign an agreement for payment of the remainder of tlie 
purchase-money on or before the 31st day of August, 
1 8 1 2, on having a good title ; and that if any delay should 


bringing bills for establishing 
a modus, and where a bill is 
brought for subtraction of 
tithes and a modus is set up 
by way of defence: in this 
last case, though it be set out 
informally, yet if it 'appears 
sufficiently in evidence, this 
will bar the Plaintiff; and it 
has been lately held, that in 
a bill for tithes, if it appears 
by the Plaintiff's own evi- 
dence that there is a modus, 
he cannot have a decree. 
Nowhere, it must be admitted, 
the modus is inaccurately 
stated ; but yet it sufficiently 
appears, taking the whole to- 
gether, that this is a modus, 
and that it is payable yearly 
by the occupiers and farmers. 
And Mr. Solicitor said, that 
where a modus was laid to be 
payable by '* the owners and 
occupiers,'* it had been lately 
held sufficient; which the 
Court seemed to admit. 
The Lord Chancellor. 
There are cases (perhaps) in 
another court, where modus- 
es have been overturned for 
niceties; but the question here 
is, whether it be laid suffici- 
ently in substance ? As to the 
difference mentioned at the 

bar, between bills brought for 
a modus, and the setting them 
up by way of defence, in both 
cases the modus must be laid 
with sufficient certainty, other- 
wise the Court will not enter 
into proof; and this is the rule 
both of this Court and the 
Exchequer. Indeed, where 
the Plaintiff sues for tithes,, 
and shews, in his own proof, 
there has been a modus, this 
wiil bar him ; though (per- 
haps) it would not be suffici- 
ent, if proved by the Defend- 
ant. There have been cases 
of this nature; and on the 
same foundation, it has been 
held by Lord Chief Justice 
Holtj that where in ejectment 
the Plaintiff proves a deed he 
shall be nonsuited, though 
such proof by the Defendant 
is not sufficient ; and there are 
many other cases of this kind. 
Now, in the present case, I 
am of opinion, that the modus 
is stated to a common intents 
and therefore to a sufficient 
certainty. There is no ground 
for the objection, that here is 
no time of payment alleged. 
It would be attended with 
great inconvenience to make 
it necessary to show a parti- 


arise in completing the purchase beyond thai time, the 
purchaser should pay interest at 5 per cent, on the re- 
jnainder of the purchase money, from that day; that 





cular day on which a modus 
is payable. If it was alleged 
^o be payable yearly, this 
anciently was held sufficient, 
And io it is at this day. Here, 
after stating the modus, it is 
«aid that it ought to be re- 
ceived yearly, and every year, 
as a modus ; which is all one 
in substance, as if it had been 
alleged in the beginning to 
fce paid yearly. This is suffi- 
cient, though it be somewhat 
inaccurate, but the same ex- 
actness is not required in 
answers in this Court and in 
she Exchequer as in pleading. 
As to the Sd objection, it is 
ahown in the subsequent parts 
af the answer, that Cart and 
^eari§ have accepted the mo- 
4dus from the occupiers and 
farmers, which must be ad- 
xnitted to be the same per- 
aons, and therefore this ex- 
ception is not material. And 
as to the last, a modus, or cora- 
|>08ition payable from time 
immemorial, must mean the 
aame thing. 

The objections being all 

overruled, the Defendants 

proceeded to their proofs. 

And the deposition of one 

XortoHf a parishioner of StO' 


ney Stanton y was produced to 
prove the modus for the yard- 
land; and it was urged for 
the Defendants, that as it does 
not appear the whole parish 
is divided into yard-lands, a 
parishioner may well be ad- 
mitted to prove it, unless it 
be shown, on the other side, 
that he has a yard-land. 

But by Lord Chancellor; 
his deposition cannot be read, 
because this modus may pos- 
sibly be in satisfaction of all 
the lesser tithes of the pa- 
rish ; and he said he had a 
note of a case where it was 
determined by all the Judges 
in England, in the time of 
Ld. Chief Just. Parker, that 
where a modus is in ques- 
tion, no inhabitant of the 
parish can be examined ge- 
nerally, unless he be a lodger, 
or one receiving alms of the 
parish, but he must not be a 
person who can claim any 
thing under the custom. 

It appeared by the evidence 
produced, that as to the tithe 
hay, the parsons of the pa- 
rish had for a long time en- 
joyed several pieces of land 
in lieu thereof, and it was not 
proved that Mr. Cart ever 
2 demanded 





the Defendant became the purchaser of lot 2, consisting 
of a wood called Stubbock's Woody with an allotment of 
arable land, and an inclosnre, at the price of 1800/., and 
of lot 3, consisting of an allotment of arable land, and 
two small enclosures, at the price of 430/. ; and paid a 
deposit, and signed an agreenient to complete the pur- 
chase according to the conditions of sale; that shortly 
after the date of the agi*eement, an abstract of the 
Plaintiff's title was sent to the solicitor of the Defendant, 
who objected that the Plaintiff had no right to dispose of 
the allotments till an award had been executed by the 


demanded such tithe. It 
also appeared, that great part 
of the lands in the parish 
which was formerly grass, 
was now turned into clover. 
As to the modus of 5^. there 
was variety of proof. 

The Lord Chancellor said, 
that there was no ground for 
the bill so far as it relates to 
the tithe hav, as it appears 
that the rectors have enjoyed 
land in lieu thereof. And it 
makes no difference that the 
lands in the parish are turned 
to clover, for it has been de- 
termined, that where there is 
a modus, or real composition, 
for the tithe of hay, and the 
ground is broke up and turned 
into a new culture (as clover, 
&c.), yet the modus or com- 
position remains the same; 
each side being to take its 
chance, as it sometimes may 
be for the benefit of the par- 
ion and sometimes of the 

farmer ; and the contrary 
would occasion much uncer- 
tainty. It is also very material 
that this bill is brought afler 
a very great length of time, 
and after an acquiescence 
by the incumbent, during 
his whole life. It would 
be of great inconvenience 
to suffer personal representa- 
tives to bring bills for such 
tithes as the rector himself 
never demanded; I never re- 
member such a case, and will 
not make a precedent. This 
is a circumstance of great 
weight. This part of the bill, 
therefore, ought to be dis- 
missed with costs. The mo- 
dus of 5s. must be sent to 
trial, on account of the variety 
of the proofs ; and it is pro- 
per to reserve the consider- 
ation of costs, as to this part 
of the bill, till the issue be 
tried; and he decreed ac* 
cordingly. — MSS. 


commissioners, but no other objection was suggested} 
and the commissioners hud long since executed their 
award, from which no appeal had been made. 

The bill prayed specific performance of the agree- 

The Defendant, by his answer, insisted that he was 
not bound to pay the residue of the purchase moneyi 
iuasmuch as divers objections existed to the Plaintiff's 
title to the premises, which, as the Defendant was 
advised, rendered the Plaintiff incompetent to make a 
good title, and to execute a proper conveyance; and 
among other diings, that it did not appear that the 
award had been long since executed, no copy or ex- 
tract thereof having ever been furnished to the Defend- 
ant or his solicitor, although applications had been 
made for that purpose; and that if the award bad 
been in fact executed by the commissioners, yet it 
had not been inroUed in pursuance of the act 41 Geo.S, 
c 109. 






The answer also stated other objections to the tide, 
under certain deeds of exchange ; and submitted to per- 
form die agreement on having a good title. 

The bill was afterwards amended by the insertion of 
allegations, that the Defendant took possession of the 
premises in Augiisi^ 1812, and had since cut three falls 
of underwood ; that after the receipt of the abstract by 
the Defendant's solicitor, a correspondence ensued be- 
tween the solicitors of both parties, and in November^ 

1814, the Defendant's solicitor transmitted to the soli- 


citors of the Plaintiff, a draft of a conveyance of the 
premises, approved on the part of the Defendant; 
and that the cutting underwood, and other acts. of 

M 8 owner**' 


1819* ownership, amounted to an acceptance of the Plaintiff's 



At tlie hearing the counsel for the Defendant, object- 
ed to the production of the letters of his solicitor, offered 
on the part of the Plaintiff, as evidence that the De- 
fendant had accepted the title. It was insisted that, in 
order to be distinctly put in issue, they should have been 
set forth at length in the bill, as in The Margravitie of 
Anspach v. Noel {a); and it was said that in SeUy v. 
SeJhy (ft), Sir William Grant refused to receive in evi- 
dence letters not charged in the bill. 

The Master of the Rolls over-ruled the objection. 

Copies of letters written by tlie solicitors of the 
Plaintiff to the solicitor of the Defendant, were offered 
in evidence, but rejected by the court, notice not having 
been given to produce the originals. 

Mr. Trawefj Mr. ShadivcU, and Mr. Swafiston^ for the 

By taking possession, and exercising acts of owner- 
ship, the Defendant has accepted the estate, and is no 
longer entitled to an inquiry whether the Plaintiff can 
make a good title. Fleetwood v. Greefi (c), The Mar' 
graviTic of Anspach v. Noel (rf), Fordyce v. Ford, {e) 
The conclusion from the correspondence is, that the 
Defendant had waved that inquiry. The Lord Chan-* 
cellor ordered the Defendant to pay the purchase mo- 
jnoney into court. (/) 

(fl) 1 Madd, 310. ' (<r) 4 Bro, C, L\ 495. 

{b) 3 Mcr. 2. (/) Burroughs \. Oakley flAIer, 52 , 

[e) IS Km. 594. 376. n. 

\d) 1 Madd, 310. 




Mr. Hm% Mr. St^den^ and Mn Bose^ for the De- 

Possession was taken under the contract, with the 
assent of the Plaintiff: the acts of ownership alleged, 
consist only of three falls of underwood in a due course 
of husbandry. Nothing less than unequivocal acts of 
ownership, as in the cases cited, or want of good faith, 
will deprive a purchaser of his right to an investigation 
of the title. Payment of money into court was conse- 
quent on taking possession. Jenkins v. Hiles (a), Fildes 
V. Hooker (ft), Dixon v. Astley. (c) 




The Master of the Rolls. 

This case is attended by some circumstailces, which 
distinguish it from any other that has ever come before 
the Court. The bill, as originally filed, was a common 
bill for specific performance. At that period, though 
recently after the correspondence on which the principal 
stress has now been laid, it did not occur to those who 
framed the pleadings to represent the Plaintiff's as one 
of the excepted cases, in which the vendor is released 
from the obligation of proving his title ; an ordinary 
equi^ which the Court is particularly careful to enforce, 
on the plain principle that a plaintiff seeking to compel 
a purchaser to accept an estate, is bound to submit his 
tide to such a scrutiny as satisfies the court, that the 
defendant may safely part with his money. The order 
of the Lord Chancellor in this case, for payment of the 
purchase money into court, was undoubtedly not intended 
to preclude the investigation of title ; it was at that time 
stated, that the investigation was proceeding, and nothing 
was suggested to exempt this suit from the ordinary 

{a) 6 Vet. 646* 

{b) 9 Mer. 494. (c) 1 Mcr. 153. 

M 4 Course. 




v» ■ 


course. The Plaintiff then amended his bill, alleging 
circumstances now insisted on, possession taken, acts of 
ownership by felling underwood, and a correspondence, 
but not seeming to state that correspondence as proof 
that the title had been waived. 

In proceeding to consider the effect of the evidence, 
a court of equity called on to enforce specific perform- 
ance of an agreement for the conveyance of an estate to 
one party, and payment of the purchase money to the 
other, must feel anxiety to protect the purchaser, and 
give to him reasonable security for his title ; not com- 
pelling him to take a title without knowing whether it 
is good or bad. The vendor, if his title is good, suffers 
only the temporary inconvenience of delay; but the 
vendee, if it is bad, may sustain a severe loss. The 
inclination of the Court therefore is in favour of the 
vendee; and a vendor claiming to be excepted from 
the general rule, is required clearly to establish a case 
of exception. What circumstances has this Plaintiff 
proved to warrant the Court in considering the present 
as an excepted case ? 

The decisions in FUetmood v. Green (a), and the 
other cases cited, are founded not so much in a rule of 
equity, limiting a time within which objections must be 
taken, and visiting delay with punishment, as on a con* 
elusion of fact, the Court being satisfied that the pur* 
chaser intended to waive, and has actually waived, hifi 
tight of examining the title. When the Court is con- 
vinced that that is the just conclusion from the facts 
of the case, then, and then only, is it authorized in de^ 
nying to the purchaser his ordinary equitable right. 
The question therefore is one of fact; what is sufficient 
to authorize that denial ? 



Possession taken by the Defendant, hns been properly 
insisted on as a very important fact: and, undoubtedly, 
it becomes a purchaser to be careful in what circum- 
stances be Uikes possession ; but whatever weight may 
belong to that fact in ordinary cases as evidence of 
'waver of title, in this case certainly no such inference 
can be deduced. 

Possession was taken of part of the lands at Michael- 
mas^ 1812, and of the remainder at the end of that year 
under a contract which is silent on the subject of pos- 
session, and under which possession so taken is pre- 
mature ; the vendee being bound to pay interest on the 
purchase money from the 3 1st of August^ 1812; a pro- 
vision vrbich seems to denote that the parties contem- 
plated delay. Two lots of recently inclosed land are 
sold for considerable sums, and it being an express. term 
of the contract that the purchase money should not be 
paid without a good title shown, and possible that delay 
might occur, in August^ 1812, possession is taken ; in what 
circumstances, the Court is not apprized ; but it must be 
presumed to have been taken with the concurrence of the 
vendor ; there is no proof that it was contrary to his 
wishes, or accompanied by nn obligation on the vendee 
to wave any right. That the vendee did not, by taking 
possession wave the investigation of the title, is clear ; 
more than a year after that event the parties were nego- 
tiating on the subject of title ; what revived the investi- 
gation if then waved? In 1813 an abstract, and a far^* 
ther abstract were delivered, for what puipose if the 
question of title had been abandoned ? It must be con- 
cluded therefore, that possession was* prematurely takeii 
with the consent of both parties, but without an inten- 
tion of waving the investigation of the title. 


J 70 






The same principle applies to the acts of ownership ; 
for what could be the purpose or advantage of taking 
possession, except to act as owner ? The evidence on 
the part of the Defendant seems not to have carried the 
case farther than the evidence on the part of the Plain* 
tiff; the act insisted on is cutting underwood. Had 
I known the nature of the evidence offered by tlie De- 
fendant, namely, evidence of the judicious exercise of 
acts of ownership, I should have doubted whether it 
was admissible ; but as an explanation of the acts in- 
sisted on by the plaintiff, I thought that I ought not to 
reject it. Whether included or excluded, the acts of 
the Defendant seem no more than the proper acts of a 
person entrusted with possession, bound to take care of 
the estate, and not to leave the crops uncut and waste ; 
acts of preservation, not of destruction. The conclu- 
sion depends on that distinction. A fall of underwood 
which must be cut by the person in possession at the 
regular season, is no more than gathering a crop of com 
or hay. In the absence of proof that the fall was im- 
proper or contrary to custom, it is only an annual c^rop 
which a tenant for life would enjoy as one of the 
ordinary fruits incident to the possession, and of which 
it could not be intended that the party in possession 
was not to have the benefit The delivery of a farther 
abstract after a fall of underwood, is quite inconsistent 
with the supposition, that by that act the purchaser had 
made the estate his own, and precluded himself from an 
examination of the title. 

The case finally resolves itself into the correspon- 
dence; the strongest of all the facts alleged, because it 
is open to the observation, that the parties are engaged 
in an act, which, in the ordinary course of business, is 
posterior to the investigation of title. It is not till afler 
the title has been examined, that a draft of the convey- 

^ ance 



ance comes to be prepared. The preparation of the 
conyeyance in this case is an important fact, as amount- 
ing to evidence that the parties had arrived at a stage of 
proceeding subsequent to the question of title, and must 
be supposed, therefore, to have removed or abandoned 
all objections. But I cannot satisfy myself that that fact 
•lone, in the circumstances of this case, is suflicient to 
exclude the common equity. The Plaintiff had given 
no strong proof of desire of despatch ; for entering into 
the contract in Juney 1812, he has not delivered a far- 
ther abstract till November, 1813, and that imperfect 
and insufficient. If the difficulties attending the title 
had been removed, what occasioned the delay? The 
booness proceeds slowly in 1814, without any urgency 
on the part of the vendor, to determine whether the pur- 
chaser meant to proceed with the examination of the 
title, or was satisfied. 




The difficulty in this case, which distinguishes it from 
every other, is, that after possession taken, and acts of 
ownership, the investigation of title proceeds, and the 
question is, whether the delay in the investigation affords 
proof that it was abandoned ? In the many instances 
that have occurred of culpable delay, perhaps for the 
purpose of retaining the purchase money, delay has not 
precluded an examination of the title, That conclusion 
requires not mere delay, but delay accompanied by acts 
which afford evidence of an intention to wave the ex- 
amination. So much stress cannot be laid on a corres- 
pondence, in which we have only the letters on one 
side, letters of a country attorney, without knowing the 
answers, as to satisfy the Court that the Defendant in- 
tended to wave the question of title. They contain no 
express, nor am I convinced that they amount to an 
implied, waver, (a) 

(a) The Master of the Rolls, here reed and commented on the letters. 

• In 







In the Margravine of Anspach v. Noel {a\ the acts of 
the Defendant amounted to evidence of waver, because 
they were such as without waver, would not have been 
performed. The solicitation of time for payment of the 
purchase money was an extremely strong act of that 
nature; the solicitation, as an indulgence, of delay, 
which if the question of title remained open, was matter 
of right. That application, together with acts of owner- 
ship, warranted the conclusion that the purchaser had 
waved the examination of title. 

In Fleetwood v. Green (i), after a lapse of three or 
four years, no objection had been taken. Neither of 
those cases is para}lel to the present. Here an objectiim 
had been taken, such as caused considerable delay in 
the delivery of the abstract; and the discussion of the 
title follows the acts, which are the strongest evidence 
of waver. The Court would not, under all the circum- 
stances, be warranted in adopting so strong a measure 
as to deprive the Defendant of the common equity of an 
investigation of tide.. The money being in court, that 
investigation cannot be proposed for delay. 

** His Honour doth order that it be referred to Mr. 
Cox^ one, &c. to inquire whether the Plaintiff can make 
a good title to the said estate agi*eed to be sold to the 
Defendant; and in case the said Master shall be of 
opinion that the Plaintiff can make a good title, it is 
ordered that he do inquire when it appeared by the ab- 
stracts delivered by the plaintiff that he could make a 
good title, and at what time ; and for the better disco- 
very," &c. Reg. Lib. A. 1818. fol. 941. 

(a) 1 Madd.SXO 

(b) 15 Vei. 59^. 




TT AUGHAN^ clerk of the peace of the city of West- 
minster^ assigned certain estates, and the profits of 
the office of clerk of the peace, to trustees upon trust to isis. 

pay his debts. The bill having: been filed to compel -^ *^' 

lu .• f-u . r L • I. ™ • The profits of 

the execution or the trusts oi the assignment; the rlam- the office of 

tiff now moved for the appointment of a receiver. ^^^^^ of the 

^'^ peace being 

^r r-r t ^r ' r ^ aWgned fof 

Mr. Hart and Mr. Simpkinson for the motion — payment of 

stated, that Vamrhan had forbidden the trustees to make ^retUtow, a 
^ ^ receiver was 

farther payments. appointed, 

pending the 

Mr. Shadwell against the motion. ^Idhy rf the 

The Defendant will not oppose the appointment of a ■•"P""*"^ 
receiver of the rents of the estates, but submits the ques- 
tion, whether tlie profits of the office of clerk of the 
peace, (which do not exceed \60L per anniim^) are as- 
signable? The assignment is void, by the statute of 
5 and 6 Ed. 6. c. 16. prohibiting the sale of offices which 
" shall in anywise touch or concern the administration 
or execution of justice;" and by the principle of the 
decisions against the alienation of the half-pay of mili- 
tary officers, {a) 

Mr. Hart in reply — 

The cases cited are not applicable to an office which 
may be executed by deputy; but a doubt on the va- 
lidity of the assignment is a tsufficient reason for securing 
the property until a decision ; as in Sir Watkin Lewes v. 
Smith. If the Defendant consents that the deputy shall 
pay the fees into court, verifying the amount by oath, 
the Plaintiff will not press for a receiver. 

The Lord Chancellor. 

Take the order for a receiver, substituting, if the 
parties agree in the arrangement, payment into court of 

(a) Davit v. The Dvke of Marlborough^ ante, v. i. p. 74. 








the fees by the deputy ; without prejudice to the question 
whether tlie profits are assignable? (a) 


In Cur, Cane, Trin. 10 Geo, 2. 

Bill for nie- 
ciflc perform* 
ance of an 
agreement to 
grant a daoii" 
offieeof regis- 
ter of a con* 
tiatory court 
charge of mia- 
hehaviour is 
sufficient to 
introduce eri- 
ticnUr acts. 

The defendant, Trotter, 
being entitled, by patent from 
the bishop of Durham, to the 
office of register of the Con- 
sistory Court o^ Durham, with 
all iecA &c. for his life, to be 
exercised by himself or his 
sufficient deputy, did by deed- 
poll, dated 30th August, 1731, 
appoint the Plaintiff to be his 
deputy for three years, in 
case both the parties should 
so long live ; but by articles 
of agreement, dated 6th Sept. 
1731, the fees of office were 
ascertained, and the method 
and times of accounting pre- 
scribed; and it was also 
agreed that the Plaintiff 
should have one-third of the 
profits for the trouble of 
executing the office. The 
Plaintiff took possession of 
the office immediately, by 
virtue of the deputation, and 
afterwards the parties came 
to a new agreement in writ- 
ing, dated 6th December, 
1731, reciting the former de- 
putation for three years, and 
thereby the Defendant grant- 
ed, promised, and agreed, 
that the Plaintiff should have 

a further deputation for four 
years, so soon as tlie three 
years should be expired; and 
the Plaintiff likewise agreed 
to accept the deputation, and 
to execute the office upon the 
same terms that were expres- 
sed in the articles, dated 6th 
September, 1731 . The three 
years being expired, this bill 
was brought to have a 8pe<ap- 
fied performance of the agree- 
ment with regard to the four 
years, to commence after the 
three years. 

For the Plaintiff it was ar* 
gued, that the consideration 
of this agreement was ju8t» 
and not in the least affected 
by the 5 & 6 Ed. 6. c. 16.» and 
that the deputation was not 
to be for such a time as that 
it could go to any one else 
besides the Plaintiff, for it 
was to end with the life of 
either of the parties. The 
difference was taken to be» 
where the deputy is to pay a 
sum in gross, and where out 
of the profits of the office ; 
for in the former case it is in 
the nature of a sale, because 
in all events the deputy is 




bound to pay it. Godolphin 
y. Tudor, 3 Keb. 717., 2 SalL 
468.; and there can be no 
inconvenience to the public 
by making a deputation for 
four years, for he must have 
it under the same terms with 
regard to any misbehaviour 
in the office, as if he was 
only a deputy at will. Sut- 
ton, Marshall of the King's 
Bench neglected to attend 
his office for two terms toge- 
ther, so the Court appointed 
another; and it was there 
held a lease of the office 
might be good. Then it was 
insisted, that as the principal 
might dispose of the profits of 
his office, or make a grant of 
them for the satisfaction of 
debts, so far as his right in 
the office itself extends, and 
as there could be no incon- 
venience to the public, in 
this case the Plaintiff was 
entitled to a specific perform- 
ance of the agreement ; and 
the case of Sir Henry Slings- 
ly (a), warden of the Mint 
was cited, where it was ar- 
gued, that he could not be 
turned out of his office with- 
out an inquisition found 
against him ; but my Lord 
Chancellor Finch held, that 
the king was not obliged to 
accept o^ his service, but 
luight direct the duty to be 
done by another, though he 
could not deprive him of 

the salary ; whence it was 
inferred, that iu this case, 
though the Defendant might 
in strictness of law refuse to 
make the Plaintiff his deputy, 
or might revoke it at any 
time, considering it as a bare 
power only, yet that he could 
not defeat the Plaintiff of the 
interest or profit he was to 
have from the place. Co. 
Litt. 233. a. b. 

For the Defendant it was 
said, that every deputy is. 
from the nature of the thing, 
removeable, HoA. 13. ; and 
the reason why the office of 
undersherifF is revocable, is 
for the public interest, and 
for the indemnity of the 
sheriff, which are both applic- 
able to the present case, 
therefore the Court ought 
not to interpose, but leave 
the Plaintiff to his remedy at 
law if he had any. Then it 
was urged, that though the 
Court might in this case de- 
cree a specific performance 
of the agreement, yet that 
upon considering the whole 
together, the Plaintiff was 
not entitled to the aid and 
assistance of this Court, be- 
cause the Plaintiff had not 
accounted for divers fees 
which he had received by 
virtue of the deputation, and 
that he had taken several 
fees which were not due or 
expressed in the list of fees 


(fl) Pott, p. 176. 







annexed to the agreement, 
dated 6th September^ 1731, 
and had concealed several 
instruments and writings be- 
longing to the office, and so 
he had forfeited all the equity 
he might otherwise have had. 
The Defendant being about 
to read his proofs as to those 
misbehaviours, &c. alleged in 
such general terms by his an- 
swer, it was objected on the 
part of the Plaintiff, that the 
charges were too general, 
and that the Plaintiff could 
not tell what proof to make 
against them, unless he must 
examine to every particular 
fee he had received during 
the time of his executing the 
office^ and also as to every 
instrument that hath come to 
his hands, which would be 
unreasonable and expensive ; 
therefore the Defendant 
should have pointed the par- 
ticular facts in his answer, 
whereby the Plaintiff might 
be enabled to know how to 
clear himself by his proof. 
2 Danv. 24>4. A> leases to B, 
for years* B* covenants to 
leave the premises in repair ; 
Breach may be assigned that 
he did not leave in repair: 
but if the Defendant pleads 
he did leave them in repair, 
the Plaintiff by his replication 
must shew particularly what 
part was out of repair, that 
the Defendant may give a 
particular answer to it. Hart' 
cock V. Field f Cro, Jac. 171. ; 

and it was said the reasoa 
would hold equally strong in 
equity as in law; and that 
though an indictment for bar- 
ratry might be general, yet 
the prosecutor is always 
obliged to give a list upon 
oath to the Defendant of the 
particular matters that are 
intended to be proved against 
him, HawL P. C. 2 B. 227. 
For the Defendant it was 
said, if this exception should 
prevail, whenever a Defendant 
alleged fraud in his answer, 
or tnat any person was non 
compos, he could be admitted 
to prove no other facts but 
what were particularly set 
forth in the answer, because 
it may there with equal rea- 
son be objected, that the 
Plaintiff would not know what 
to controvert, or what proof 
to make. And the case of 
Sidney v. Sidnei/, 3 P. Wm 
269. was mentioned) where a 
bill was filed for a specific 
performance of marriage ar- 
ticles, and the Defendant in 
his answer, declared his wife 
had greatly misbehaved her- 
self towards him ; at the hear- 
ing of the cause, the Defend- 
ant would have proved, that 
the Plaintiff had been guilty 
of adultery, but he was not 
admitted to make that proof, 
there being a great variety of 
misbehaviour that a wife majT 
be guilty of towards her hus- 
band, and so the charge waa 
too general ; but it was then 




agreed, if it had been said 
generally, that she had been 
guilty of adultery, he might 
have been permitted to prove 
any particular acts of adul- 
tery, though not alleged in 
the answer. 

Taliot, Lard Chancellor. 
The question is, whether these 
matters are sufficiently put in 
issue or not ; for it is certain 
they might have been more 
precisely so, by enumerat- 
ing the particular facts ; yet 
as they are not intended to 
charge the Plaintiff with any 
particularsums received more 
than are accounted for, but 
to show a general misbehavi- 
our of the Plaintiff in this of- 
fice, so that a court of equity 
should not help him, I think 
for this purpose they are suf- 
fidently put in issue. Here 
the Defendant does not rest 
bk saying the Plaintiff has 
broken the articles generally, 
but says under such and such 
a bead, which are general 
heads on which the Defend- 
ant intends to rest his case. 
In the case of Sidney v. 
Sdne^f the words were so 
uncertain, that it was impos- 
lible to imagine what kind of 
aiisbehaviours they might be, 
tad there the Court would 
Qot let him prove adultery, 
because it was not rightly put 
ia issue ; but if it had been 
laid she had been guilty of 
adultery, then she would have 
had a sufficient opportunity 
Vol. III. ! 

of defending herself, even as 
to particular adulteries. In 
criminal matters, it is not 
only necessary that tlie na- 
ture should be set out, but 
generally that the single fact 
should be specified, by which 
the party may be enabled to 
defend himself in a matter 
which is final against him. 
But here, if the Plaintiff 
thinks he can give further 
light in tlie affair, or the Court 
has any doubts about it, there 
may be directions given for a 
further inquiry. 

Then the Defendant began 
to read his proofs, but the 
Chancellor proposing that a 
Master should examine whe- 
ther the Plaintiff had acpount- 
ed for all the fees he had re- 
ceived, &c. the parties agreed 
to it. At last the whole dis- 
pute was referred to arbitra- 

This cause came before the 
Chancellor by way of appeal 
from the Rolls, where it was 
determined, that the allega- 
tions in the Defendant's an- 
swer were too general to put 
the particular misbehaviours in 
issue; and also, that this was 
in its own nature a case im- 
proper for the court to decree 
a specific performance, be- 
cause the law has allowed 
every principal a power to 
revoke his deputation at any 
time. — Sir Clement Wearg\ 


' Palmee 











Jult/ 18. 

32 Car, S. 


Prerogative of 
letters patent, 
to suspend a 
public officer, 
though the 
office is 
granted for . 
fife. After 
suspension the 
officer is en- 
titled to re- 
cdve the sa- 
lary, but not 
to exercise the 
functions, of 
the office. 

The following note of preceding, is extracted fbour 
Slingsb^*B case, cited in the Lord Nottingfiam*B MSS. 


Mr. Slingsbj^f the Master 
of the Minty had been ex- 
amined before the Lords Com- 
missioners of the Treasury 
touching several misdemean- 
ors, and upon their report, 
and hearing of him at council 
table, was ordered to be sus- 
pended from his place, and 
the patent of suspension com- 
ing to be sealed, he put in a 
caveat, and insisted by his 
counsel, that he had in no 
sort misdemeaned himself, nor 
could be removed from his 
freehold without an inquisi- 
tion, finding a forfeiture, or a 
scire Jacias ; nor could he be 
suspended, his salary arising 
by the profits, and he having 
also casual profits that arise 
by the exercise of his place, 
as 18^. for every pound 
weight of silver that is coined, 
and 7s* for every pound 
weight of gold, besides houses 
and other privileges; and cited 
1 Inst. 233. a, b. 18. E. 4. 9. 
Bra. Grants^ 103. 

To which it was answered, 
that it was fit to distinguish in 
this case, between that which 
was truly and properly Mr. 
Stingshys office as Master of 
the Mint, and that which was 
a collateral contract by in- 
detiture between him and the 
king. To his office, stnctly 
and properly, there belonged 

nothing but a mere salary, 
which must and ought to be 
continued to him notwith- 
standing his suspension, but 
his service in that office the 
king was not obliged to use 
unless he pleased ; and trgo^ 
might well enough discharge 
him the exercise of it, paying 
him his salary ; for herein the 
king did no more than any 
common person might do. 
The profits and perquisites 
which he claims at 18<f. and 
7<. in the pound, arise only 
by the contract between 
him and the king, upon 
which contract he is fbund to 
be greatly indebted to the 
moneyers and others, andthb 
contract is not for life ; or if 
it were, the king is not obli||>- 
ed to continue in that con- 
tract, and trust with die for-' 
ther receipt of money, him 
who is already found so IM- 
ty; and whereof the conse- 
quence begins already to a^ 
pear, so far that the mint is 
like to stand still ; and as to 
the patent of his office, direc- 
tions are given for a toift 

I said the first part of the 
debate, whether Mr. Slingsby 
have deserved to be suspend- 
ed, is not at all before me; 
but the latter point, whether 
he may be suspended, though 




he deserve it neversomucb, is 
that which I am to consider ; 
and yet the very debate of 
the first point supposes and 
admits the latter : and I ob- 
servedy that since his Ma- 
jesty's happy restoration, 
there were several precedents 
of officers for life, who had 
been suspended. The earl of 
Newport was suspended from 
being Master of the Ord- 
nance, and the exercise of 
that place granted to Sir WU- 
Uam Compion; the Earl of 
Angksijf was suspended from 
being Treasurer of the Navy, 
snd the exercise of that place 
granted unto Sir Thomas Os' 
honif and Sir Thomas Little- 
ton; and to the first patent 
the Earl of Clarefidon put the 
leal, to the second the Lord 
Bridgman* Since these, there 
was likewise a suspension of 
the Lord Onger from being 
Vice-treasurer o£ Ireland,and 
the exercise of that employ- 
ment is now in the Lord 
Sandagh; and this patent of 
suspension was sealed by the 
£arl of Shajlsbury. So that 
Mr. Slingshy must have more 
favour than these other lords 
liave had, and I must be 
^iser than all my predeces- 
sors, if I refuse to seal this 
patent of suspension, which 
the council talile have order- 
ed to pass ; nor do I do this 
Vecause I am so required, but 
because I think the law allows 

it ; for it is expressly within 
the difference of all the books, 
it being an office without any 
profits but the mere salary, 
which must be contifiu- 
ed ; and it were strange to 
deny the king that liberty 
which every subject hath, 
to refuse the service of any 
man whom he doth not like. 
For in a stronger case than 
this, viz. in the case of an 
office of inheritance^ the case 
of the constable of England^ 
it hath been resolved by all 
the judges of England^ that 
the king may refuse the ser- 
vice of the officer; and yet 
there are profits incident to 
that office, as the books say, 
SH.S. 11 El. 
Dtfer, 285; and in Mark 
Steward's case, who was ser- 
jeant-at-arms during life, and 
had a licence from the queen, 
by parole, to absent himself, 
the chief reason why that li- 
cence was held to be good 
was, as the book says, be- 
cause it was in a manner a 
refusal of his services for the 
time, and it is in the pleasure 
of the queen, whether she will 
accept his service or no, Co* 
L 9. 99. a. quod nota, for there 
are fees and profits which arise 
by the exercise of that office. 
And now if Mr. Slingshy be 
still resolved to dispute, and 
neither these precedents, nor 
yet a former precedent in 
King James'% time> where a 






predecessor of his own,' who 
was likewise master of the 
Mint, and was suspended by 
order of council, can satisfy 
him, I know no better way 
for the king to assert his 

power of suspending, and to 
try his right so to do, than by 
seeding this patent, and leav- 
ing Mr. Slingsby to his re- 
medy at law. Lord NotHng^ 
hanis MSS. 

Trinity, 1711. 

Where an of- 
or profit u in 
tniic, the acts 
of a majority 
of the cettui 
aue trusU may 
Dind the rest. 

There being four ceshti que 
tnuis of the office of the re- 
gister of the Prerogative 
Court; the trustees covenant- 
ed not to appoint any under 
officer, &c. without the direc- 
tion of the cestui que trusts ; 
but afterwards the defendant 
Norris was made assistant 
without the privity of three 
of the cestui que trusts, but 
with the consent of the fourth. 

Norris was enjoined not to 
act any longer; but as he 
came in without notice of the 
covenant, he was to have his 
costs against the Plaintiff, and 
the Plaintiff to have them 
over against WeUiam who put 
Norris in. 

Peer WiUiams, said the 
four cestui que trusts made 
but one assignee of the of- 
fice, and that therefore they 
ought all to agree in nomin- 
ating, or else nobody could 
be nominated ; and the rather 
because the place was within 
the statute, and therefore 
could, not be sold, or the 
nomination any profit ; but in 
cases of profit, he allowed a 
majority should bind. 

Lord Keeper. Shall three 
lose their right because m 
fourth will not agree? A ma- 
jority is sufficient. — - From 
Mr. Cox*8 notes. — Lord Col* 
che8ter*B MSS. 








Commencing in the Sittings liefore 

58 Geo. III. 1818. 

In re the Cmona- of SALOP. *J^^** , 

^ ^pril ftS. 

^DWARD SEAGERy one of the coroners for the Order that a 

county of Salop, having died, a petition was pre- J^ij^f^^^i*^ 

seated by some freeholders of that county, praying an election of an 

order to the cursitor to issue a writ for the election of a Joroner for 

coroner in his place, and also of an additional cormier ^® county of 

for Haks Ovoen. The allegations of the petition appear F^^edings 

in die orders annexed. ®? ^^^ ^^^ 

of acoroner. 

Sir Samuel Romilly in support of the petition. 

The. statute JVestm. 1. c. 10., requires that " suffi- 
cient m^' shall l)e chosen coroners, but no statute 
Vol. III. O limits 

for the elec- 
tion of a luc- 
cesior. • 


1818. limits their number. In 1787 Lord Thurlaw^ on an 

^_*~" ' application from the freeholders of Staffordshire^ there 

Coroner of being then only two coroners for that county, ordered 

Salop. writs for the election of two additional coroners. 

The Lord Chancellor. 

The usual course is (I know not that it is necessary) 
to issue the writ for election of a coroner, on a repre- 
sentation made by the magistrates at the quarter ses- 

The following orders were made. 

Tuesday the 26th day of May, in the 58th year of 
the reign of His Majesty King George the Third, and 
in the year of our Lord 1818. 

Upon reading the petition of several of the freeholders 
of the county of Salop, praying my order that the cur- 
sitor for the said county do make and issue forth His 
Majesty's writ de Coronatore Eligendo, for the election 
of a new coroner, in the room and stead of Edmund 
Seager, late of Cleobtny Mortimer, in the said county of 
Salop, gendeman, deceased, one of the coroners for the 
said county ; an affidavit of Joseph Milnes Bloxham, of 
the borough of Hales Owen, in the said county, sur- 
geon, of the death of the said Edmund Seager, and an 
undertaking of George Hinchcliffe, of Hales Owen afore- 
said, gentleman, one of the attomies of His Majesty's 
Courts of King's Bench and Common Pleas at Wed'' 
minster, (filed with the receiver of the fines,) that six 
days' notice of the time and place to be appointed, for 
the said election, shall be publicly given in all the mar- 
ket towns of the said county of Salop, before the day of 
the execution of the said writ ; let the cursitor for the 
county of Salcp make and. issue forth His Majesty's 

* writ 


writ ie Coronatore EUgendo^ for the election of a new 1818. 
coroner in the room of the said Edmund Seager^ ^ " - ~* 

J J JLfl TC tiM 

decea^iecL Coroner of 

ELDON, C. ^^'• 

Tuesday, the 26th day of May^ &c« 

Whereas several of the freeholders of the county of 
Salop J on behalf of themselves and other freeholders 
of the said county, have presented their petition to me, 
stating, among other things, that within the said county 
there is a certain insulated part, situate within the parish 
of Hales Owen^ which contains many thousands of in- 
hahitants and considerable collieries and ironworks, in 
which are freqnent accidents, which said parish of Hales 
Omen is about twenty miles distant from any other part 
of the said county, and that the attendance of a coro- 
ner who has usually resided in such other part of the 
said county, and at a place thirty-five miles distant 
fiom Hales Oinm, has been attended with very great 
inconvenience, trouble, and expense; that there have 
hitherto been only four coroners acting in the said 
GCHiDty, but that were a fifth appointed to act within 
such insulated part, it would be a considerable saving to 
the county in general, and to the parish of Hales Owen 
in particular, in the expenses attendant thereon, and 
that the business would be more speedily and efiectually 
done ; that in case the appointment of the fifth coroner 
should be approved of, and a writ should issue for 
such election, they were of opinion that the residence 
of such fifth coroner should be in the said parish of 
Hales Owen ; and that the business of the county, inde- 
pendent of that part of it which lies within the parish 
of Hales Owen^ is fiiUy as much as four coroners can 
possibly attend to : Now therefore, on reading the said 
petition, the approbation of the justices signified at 
the general quarter sessions of the peace held for the 

O 2 said 




In re the 

Coroner of 


said county, of such application for appointing a coro- 
ner for Hales Oaoen, and an undertaking of John Philpoif 
of the Inner Temple, gentleman, one of the attoroies 
of His Majesty's Court of King's Bench at Westminster^ 
(filed with the receiver of the fines,) that due notice 
shall be publicly ^ven in all the market towns within 
the said county of Salqpy of the time and place to be 
appointed for the execution of His Majesty's writ de 
Coronatore EUgendo^ for the choosing a new coroner 
for Hales Owen in the said county, six days at least be- 
fore the execution of the same ; let the cursitor for the 
said county of Salop make and issue forth His Majesty's 
writ de Coronatore Eligendoj for choosing a coroner for 
the parish of Hales Owen^ within the said coun^ of 

ELDON, C. (fl) 

{a) Anon. S Atk, 184. 58 Geo, 5. c. 95. 

May SI. S5. 

after two 
orders for 
time, hairing 
filed an answer 
which was 
found in part 
Illegible, a mo- 
tion that it 
might be taken 
off the file, 
resisted on an 
affidavit that 
it was legible 
when sworn, 
was refused. 


of FOWEY. 

TN this case, after two orders for time, an answer had 
-*- been filed by the defendants, but on attempting to 
take a copy, it was foimd in various parts illegible. The 
plaintiff now moved that the answer might be taken off 
the file. 

Sir Samuel Bomilly for the motion. 

An illegible answer, of which no copy can be taken, 
is in effect no answer. The only question is, whether 
the defendants are not under the necessity of obtaining 
a third order for time. They cannot be in a better 
situation than if no answer had been filed. 

Mr. /for/ 


Mr. Hart against the motion. 1818. 

The defendants are willing to pay the costs of filing j^^ Attorney 
a new answer ; but they deprecate an order by the terms General 
of which thr.y consent that the serjeant at arms shall go The Major of 
against them, (a) The affidavit of their solicitor proves Po^^- 
that the answer must have become illegible since it was 

Sir Samuel Bomilly in reply. 

The solicitor states only that he examined Uie answer 
before it was sworn by one of the defendants in London^ 
not after its return from Cornwall. 

The Lord Chancellor. 

If the answer was filed in a legible state, no blame 
attaches to the defendants. I find on inspection, that 
all the schedules, and nine-tenths of the body of the 
answer, are legible. An affidavit must be filed, describ- 
ing the state of the parts now illegible, when last 

An affidavit having been filed, stating Uiat the answer Ma^ 25. 
was legible when sworn, the Lord Chancellor refused 
the motion. 

(a) Orders in Chancery^ cd. Beames, 455. 




ROBERT, Earl of Buckinghamshire^ (since deceased,) 
ALBINIA9 Countess Dowager of Buckinghamshire^ 



Buckinghamshire^ Defendant. 

June 27. 29. 

Acharge not npHE Master's report in this cause, dated the Ist of 
extinguished ■ . 

for the benefit Aprils 1815, stated that Sir Cecil Wray^ by his will 

though satis-' dated the 21st of January^ 1735, devised his seat at 

fiedbythe Branston, with all his fee-simple estate there^ and all 

tenant in tail, ,. • r*- . * . . o • 1 

with the in- ^is messuages m Hetghtngton^ &c. m that comity, to 

tendpn of ex- ^^ hms of his own body begotten or to be begotten^ 
under the * with remainder to Mrs. Ann Casey^ his natural and 

erroneous sup- put^j daughter, for life, without impeachment of wastes 

ne was tenant remainder to John Selwyn and Thomas Farrington, tni9- 

eetunpe. ^^^^ ^^ support contingent remainders, remainder to 

Selwyn and Farrington, their executors, &c. for the 
term of 500 years, upon trust, to raise 6000/. for the 
younger child or children of Ann Casey, beside an eldest 
son, equally at the age of twenty-one years or day of 
marriage, remainder to the first and other sons of .^^m 
Casey, in tail general, with remainder to her first and 
other daughters in tail general, with dirers ulterior 
remainders; that Sir Cecil Wray d\eA in 17S6 without 
lawful issue, whereupon Ann Casey entered into posses- 
sion of the devised estates, and afterwards intermarried 
with Lord Vere Bertie ; that by an indenture dated the 
14th of May, 1757, being the settlement, or articles pro- 
viding for a settlement, on the marriage of Albinia 



Bertie^ the eldest daughter of Ann Casey, with the 1818. 
Honoarable George Hobart, afterwards Earl of Btick" p^l f 
inghamskirej between George Hobart of the 1st part; Buckingham- 
Lord Vere Bertie and Ann Lady Bertie his wife, and ^ ^^ 
Albinia Bertie, then an in&nt of the age of eighteen Hqbaat; 
years, of the 2d part; Edward Woodcock the elder and 
Edward Woodcock the younger of the 3d part; Elizabeth, 
then Countess Dowager of Bucks, of the 4th part; Lord 
Robert Bertie and John Bristaw, of the 5th part ; and 
John, Earl of Buckinghamsfiire, and Robert Weston 
of the 6th part ; reciting that Lord Fere Bertie and 
Lady Ann his wife had issue Albinia Bertie and Louisa 
Bertie, and no other issue. Lord Vere Bertie and Lady 
JfM and Albinia Bertie covenanted with Edward Wood' 
cock the elder and Edward Woodcock the younger, that 
in case the marriage should take effect, and Albinia 
Bertie should attain the age of twenty-one years, they 
would within six months after that time convey the man- 
don-honse of Branston, and all other estates in the 
county of Lincoln devised by the will of Sir Cecil Wrcof^ 
to the use of Lord Vere Bertie and Ann Lady Bertie 
and the survivor for life, remainder to the use of trus- 
tees to preserve contingent remainders, remainder to the 
use of the first and every other son and sons of Ann 
Ladj Bertie in tail male, remainder to George Hobart 
fi>r life without impeachment of waste, remainder to pre- 
serve contingent remainders, remainder to the use ofAlbi'^ 
nia Bertie for life, remainder to preserve contingent re- 
mainders, remainder to the use of two or more trustees 
to be named, their executors, &c. for 600 years, upon 
Crost, in aid of a term of 500 years thereinbefore agreed 
lo be limited in other estates devised by the will of Sir 
Bkkard EUys in favor of George Hobart, for raising 
10,000/. for the younger children of George Hobart and 
Albinia Bertie^ remainder to the use of the second, third, 
and every the son of George Hobart on the body of the said 

O 4 Albinia 







AUrinia Bertie lawfully to be begotten (other than 
son as should be heir male of the body of Qeorge 
Hobart for the time being) in tail male, with divem 
remainders, and the oltiroate remainder to the use of 
Lord Robert Bertie and his heirs. 

The master also found that no settlement was made 
of the estates devised by Sir Cecil Wray^ during the liyea 
of Lord Vere Bertie and Ann Lady Bertie^ but that 
after her death (she having survived her husband) in 
1778, by indentures of lease and release, bearing date 
the 2Srd and 24th days of Aprilj 1779, and made be* 
tweai George Hobart and Albinia his wife of the first 
part, Elborough Woodcock of the second part, l^owuu 
Barnard of the third part, Lord Robert Bertie and Ed' 
ward Woodcock of the fourth part, and Henry Hobart of 
the fifth part, and by a recovery su£Pered in pursuance 
thereof the estates devised by the will of Sir Cecil fVray^ 
were settled to the use of George Hobart for life, re- 
mainder to the use of Lord Robert Bertie and Edward 
Woodcock, to preserve contingent remainders, remainder 
to the use of Albinia the wife of George Hobart, for 
life, with the like limitation to, the same trustees to pre- 
serve contingent remainders, with remainder to the use 
of Henry Hobart and Elborough Woodcock, their exe- 
cutors, &c« for 600 years, as auxiliary to, and for raising 
such sum or sums as they should tliink proper towards 
payment of the said sum of 10,000/. intended to be 
provided by the trusts of the term of 500 years^ 
limited in the estates of Sir Cecil Wray, by the arti- 
cles of the 14th of May, 1757, for the portions of 
the younger children of George Hobart and Albinia his 
wife, remainder to the use of the second, third, and every 
other the son of George Hobart, on the body of Albmia 
his wife begotten, (except such as should be heir male of 
the body of George Hobart for the time being), with 



cKvers remainders over; the uses and trusts so limited 1818. 
and declared being conformable to the covenants in the ^ i^ 
indenture of the Hth of May^ 1757, except as to the Buckivgbam* 
interests directed in fitvor of Lord Vere Bertie and Ann "1** 
Lady Bertie, and her issue male ; Lord Vere Bertie and H«BAaT« 
Lady Ann being then dead without issue male. 

The master also found that Lord Vere Bertie had, 
with the fortune of his wife Lady Ann, purchased other 
estates in Branston, which were known by the descripo 
tkm of the purchased or partition estates, to which 
during his life it was conceived that he had, under die 
purchase, become entitled for an absolute and dispos- 
able interest; and that by the indenture of the 14th of 
Jtfary^ 1757, the same had been demised by him to John 
tiien Earl of Buckinghamshire, and Bobert Weston for 
400 yearsj for securing additional portions to the 
younger children of George Hobart and Albinia, to the 
miount of 7000/., but that upon the death of Lord 
yiere Bertie, it was discovered that the purchased estates 
^r the beneficif^l interest therein, according to the pur- 
port of a bond or agreement, which had been entered 
into by him upon his marriage with Ann Lady Bertie, 
vespectiug the investment of her fortune in land, would 
upon her death become vested in her two daughters 
ABnnia Hobart^ and Ann Louisa, as tenants in common 
in tail general ; and accordingly upon the decease of 
Ann Lady Bertie, by indentures of lease and release, 
Clearing date the 81st of May, and 1st of June, 1780, 
the release being made between George Hobart and 
Albinia his wife of the first part, Augustine Greenland of 
the second part, Elborough Woodcock of the third part, 
Joiii Earl of Buckinghamshire and Bobert Weston of the 
fourth part, and Brononlow Duke of Aneaster and Keste^ 
ven of the fifth part, and a recovery in pursuance thereof^ 
the undivided moiety of Albinia Hobart^ in the purchased 



' 1818* estates, was settled to the use of John Earl of Bucking*^ 
*^_ j^ - ^ hamshire and Robert Weston^ their executors, &c. fiir 

Buckingham* 600 years, upon the same trusts for raising 7000^ for 
^^^ the additional portions of the younger children of 
HoBABT. George Hobart and Albinia his wife, as were declared 
by the indenture of the 14th of May^ 1757, with req>ect 
to the term of 400 years ; and it was agreed that the 
term of 600 years should not affect the term of 400 
years, but should be considered to be only in aid ther^o^ 
and subject to the term, the moiety was limited to the 
use of the Duke of Ancaster and Lord Robert Bertie^ 
(the executors of Liord Vere Bertie) their executors, &c 
for 1000 years, upon trust by mortgage or sale to raise 
4,200^., and 4000/., due from George Hobart to the estate 
of Lord Vere Bertie and Ann Lady Bertie^ and subject 
thereto, to the use of Elborough Woodcock^ in trust for 
George Hobart and his heirs. 

The master farther found that in 1781 a partition of 
the purchased estates was effected by certain indentures 
bearing date the 13th and 14th of September, 1781, and 
certain fines levied in pursuance thereof, and Albinia 
Hobarfs divided moiety thereof was settled to the uses 
declared of her undivided moiety, by the indenture of 
the 1st of June, 1780; that George Hobart and Albinim 
his wife had issue, George Vere Hobart their second soiiy 
who by virtue of the indenture of the 14th of Ma^ 
1757, and the settlement in pursuance thereof by the 
indentures of the 2Srd and 24th days of Aprilj 1779^* 
and the recovery then suffered, became entitled to the 
estates devised by the will of Sir Cecil Wray, (called file 
Wray estates) as tenant in tail in remainder expectant 
upon the several deceases of George Hobart and Albinia 
his wife ; that by virtue of an indenture of bargain and 
sale duly enr611ed,^ bearing date the ISth of Jim^* 
17879' and made between George Hobart and Albinia 



wife of the first port, George Vere Hclbart of the 1818. 
second part, Elborougk Woodcock of the third part, and ^ C ' TI 
Thomas Woodcock of the fourth part, and of a recovery Bvckinoham^ 
in porsoance thereof the fVrcn/ estates were settled to '^'^ 
the use of sach person or persons and for such estate Hobabt. 
as George Hobart and Alhtnia his wife, and George Vere 
Hobart^ should, by any deed executed in the presence of 
two witnesses and enrolled in Chancery, appoint, and 
in defiuilt, to the use of such person, &c. as the estates 
then stood conveyed by the indenture of the 24th of 
April 1779 ; that by an indenture of appointment bear- 
ing date the 9th of Februaryy 1790, made between 
George Hobart and Albinia his wife, and George Vere 
Hobart of the one part, and Elborougk Woodcock of the 
other part, duly executed by them in the presence of 
two witnesses, but not enrolled in Chancery, the Wrmf 
estates were appointed to the use o{ Elborougk Woodcock 
bis heirs and assigns, upon such trusts as George Hobart 
and Albinia his wife, and George Vere Hobart^ should 
by any deeds executed in the presence of two witnesses 
iqipoint; that by indentures of lease and release and 
appointment, bearing date the 9th and 10th days of 
February, ]790, the release and appointment being 
xnade between George Hobart and Albinia his wife, and 
,^lboroisgk Woodcock of the first part, George Vere Ho^ 
hart of the second part, Charles Stuart and Ann Louisa 
liis wife, and John Elarl of Btde and Thomas CouttSf 
(trustees named in the marriage settlement of Stuart 
and his vrife,) of the third part, BrawhUm Duke of An^ 
master of the fourth part, William Birch and Elborougk 
Woodcock of the fifth part, and C G. Hudson of the 
tixth part, reciting that the indenture of the 9th of 
Eebruary had been enrolled in Chancery, and that in 
1786, George Hobart^ together with Robert Hobart his 
eldest son, executed mortgages of certain manors, &c« 
fcrraerly the estate of Sir Bichard EUys^ . for securing 



16 }8. seyernl sums, ainounting in the whole to 50,0002^ the 
Earl of "manors, &c, beiqg also subject to an annuity of 50OJL9 
Buckingham- granted by George Hobari and Albinia his wife, during 
^^^^ their lives and the life of the survivor, and that at the 
HoBAUTt time of making the mortgages, it was intended to re- 
purchase the annuity, and 3,500/^ part of 50,000^, were 
deposited in the hands of Birch for that purpose ; and 
In the mean time to indemnify the mortgagees and 
jilbinia Hobart^ in case she should happen to survive 
her husband, against the annuity, and subject to such 
indemnity in trust for George Hobart his executon^ 
&c. ; and farther reciting that it having been found iiiH 
practicable to repurchase the annuity, the 3,500/. had 
been laid out in India bonds, and that George Hobart 
being desirous of paying off 4,200/., part of the 8,300/19 
due to the Duke of Aticaslery as surviving executor of 
LfOnl Vere Bertie and Jnn Lady Bertie, and to borrow 
300/., Birch had agreed to advance the 3,500/., and 
C. G. Hudson had agreed to advance 1000/., to make 
up the 4,500/.; and that George Vere Hobart bed 
agreed to join with George Hobart and Albinia his wifi^ 
in appointing the Wrai/ estates comprised in the indeivr 
tures of 13th Jtmef HS?, and 9th February^ 1790, as a 
farther security for the 4,500/., upon condition that the 
equity of redemption of the premises thereuoafter 
granted, should be limited to Geotge Vere Hobart ia 
fee, subject to the estate for life of George Hobart s tlie 
several parts of the estates purchased by Lord Vert 
Bertie^ and allotted in sevei*alty to George Hobart aad 
Albinia his wife, were released and assured to the 
of William Birch and Elborough Woodcock^ their 
and assigns, subject to the terms of 400 years and 600 
years, and to the sum of 7000/., to be raised under the 
trusts of those terms, and subject to the term of 1000 
years, and to the sum of 4000/. remaining to be raised 
lender the trusts of that term^ and subject to a proviae 



ibut upon payment by George Hobart and George Fere 181 8» 
HoUari- or dther of them, or the heirs or assigns of ^^^^ 
George Vere Hobart^ to Birch and Elborough Woodcock^ Bockin&hak* 
thttr execators, Slc^ upon the trusts thereinafter men- ^^ 

ticmed, of the 8,500/., and to Hudson his executors, &c. Hobakt^ 
of 1000/.9 the premises should be reconveyed to George 
Hobart for life, and after his decease to the use of 
George Vere Hobart in fee ; and for better securing the 
repayment of the 8,500/. and 1000/., Elborough Wood- 
cocif George Hobart^ and Albinia his wife, and George 
Fere Hobart^ conveyed the Wray estates to Birch and 
Woodcock in fee, subject to a proviso, that on payment 
of the 8,500/. and 1000/., the last mentioned premises 
should be reconveyed to the use of such person, &c. as 
Qwrge Hobart and Albinia his wife^ and George Fere 
Hobart should by deed attested by two witnesses ap- 
point, and in default of appointment, to the use of 
George Hobart for life, remainder to the use o{ Albinia 
Hobart for life, remainder to the use of George Fere 
Hobart in fee ; and the indenture contained covenants 
by George Hobart and George Fere Hobart^ for pay- 
ment of the 8,500/. and 1000/. 

The Master farther found, that by a deed-poll, under 
the hands and seals of George Hobart and Albinia hia 
xriSd, and George Fere Hobarij dated the 5th of 
JCanuaryy 1791, and attested by two witnesses, reciting 
that the Wray estates, subject to the payment of 6000/. 
to Asm Louisa the wife of Charles Stuart^ and to the 
last mortgage, were setded to the uses declared in the 
last inidaiture, and that George Hobart was about to 
borrow 14,468/^ 8 per cent, bank annuities then stand- 
ing in the names of John Earl of Buckinghamshire and 
Babert Weston as trustees, to pay the interest \o George 
Hobart for his life, and afler his decease in trust as to 
the capital, for the younger children of George Hobart 



181B. by Albinia his wife, except George Vere Hobartf fte 
^ - y" ^ same having been purchased with the 10,000/. provided 
BocnNGHAx- for the portions of the younger children ; and the produoe 
^'^ of the bank annuities, which was computed at 1 l,560ty 
HoBART. was to be applied in payment of 4,250/. remaining doe 
from George Hobart to the trustees for Sir Charles Stuart^ 
and then of 6000/. to Ann Louisa Stuart^ and the rest- 
due to George Hobart ; it was agreed between George 
Hobart and Albinia his wife, and George Vere Hobarif 
that the 1 1,560/., or such sum as should arise by the 
sale of 14,463/. 3 per cent, bank annuities, should be 
secured, 6000/. primarily on the Wray estates, and col* 
laterally upon that part of the estates purchased by 
Lord Vere Bertie^ which had been limited in severalty 
to George Hobart and Albinia his wife, and the renudn- 
ing 5,560/., primarily upon the purchased, and colkte* 
rally upon ihe H^ray estates. — ^That by another deed 
dated the 16th of August, 1791, under the hands of 
George Hobart and Albinia his wife, and attested by 
two witnesses, reciting that a security was prepared and 
would be speedily executed to John Earl of Buddn^ 
hamshire and Robert Weston, fi>r the money to afbe 
from the 14,463/. 75. stock, in which to avoid ob* 
jections on the part of the trustees, the whole was 
secured as well on the purchased as on the Wrmf 
estates, it was declared, that as between the parties 
to the deed and their son George Vere Hobart, the 
security was to be considered as given conformaUy 
to the agreement for charging 6000/. primarily on 
the Wray estates, and •collaterally only on the par- 
chased estates, and the residue primarily on the pur- 
chased, and collaterally on the Wray estates ; that by 
indentures of lease and release and appointment bearing 
date the 16th and 17th oi August, 1791, the release and 
iqppointment being made between George Hobart and 
Albinia his wife, of the first part ; George Vere Hobart 
«f ihe second part; Charles Stuart and Ann Louisa his 


wife, and John Ear! of Bute and Thomas Coutts of the 1818. 
third part ; Brcnmlam Duke of Ancaster and Kesteven *^ £^i / 
of the fourth part; W. Birch.aud Elborough Woodcock of Buckinobak*. 
the 5th part; C G. Hudson of the sixth part; John Earl **^ 
of Buckinghamshire andiZ. Weston of the seventh part; and Hobaet. 
Cqnrade CouUhurst of the eighth part; in consideration 
of 40002.9 part of 12,710/., (the value of the 14,46S/. Is. 
stock,) paid to the Duke of Ancaster^ in satisfaction of 
that snm remaining due to him under the trusts of the 
term of 1000 years, and in consideration of 6000^, 
other part of the 12,710;., to John Earl of Bute and 
Thomas Coutts paid in satisfaction of the 6000/. pro- 
vided by the will of Sir Cecil Wray for the portion of 
Annljouisa Stuart^ as the only younger child of Ann 
Lady Bertie^ and all interest thereon, and in consider- 
adoa of the remaining 2,710/. paid to George Hobart 
and George Vere Hobart ; George Hobart and George 
Vere Hobart conveyed to John Earl of Buckinghamr- 
shire and R. Weston in fee, the part of the purchased 
estates allotted in severalty to George Hobart and Albinia 
his vrife, subject to the terms of 400 years and 600 
years, to the 7000/. to be raised under the trusts thereof, 
and also subject to a proviso, upon payment of the 
12,710/. and interest, for reconveyance to George 
Hobart for life, remainder to George Vere Hobart in 
fee, subject to the terms of 400 years and 600 year^, 
and the sum of 7000/- : and for farther securing the re* 
payment of the 12,710/., George Hobart and Albinia his 
wife, and George VereHobart^ appointed to the Earl of 
JBuckinghanishire and 22. Weston, in fee, all the Wra^ 
estates, subject to a proviso, upon repayment, for re- 
conveyance to such persons as George Hobart and 
.AUfinia his wife, and George Vere Hobart, by any deeds 
attested by two witnesses, should appoint, and for want 
of appointment to George Hobart for life, remainder to 
Albinia Hobart for life, remainder to the use of George 



1818. Vere Hobart in fee; and the indenture contained core* 
B^ J f nants by George Hobart and George Ve>'e Hobart for 
fiffCKiNOHAM- payment of the 12,710/. 


Hobart. The Master then found tliat George Vere HobaH 

being thus entitled in fee simple to the equity of redemp* 
tion of tlie purchased estates, subject to the life estate 
of his father George, and also believing himself to be 
in like manner entitled in fee simple to the equity of 
redemption of the Wray estates, subject to the life 
estates of his father and mother, by his will dated tlie 
12th of June, 1802, devised his reversionary interest in 
the Branston estate to his wife Janet M^Leod Hobart ton 
her life, if she should 30 long continue unmarried, r^ 
mainder to Robert Earl of Buckinghamshire^ then Bobert 
Lord Hobart and John Sullivan in fee, on trust to seU^ 
(with an option of purchasing to his eldest son living al 
the death of his wife,) and stand possessed of the potv 
chase-money upon trust for all his children living at his 
death, except an eldest or only son, equally, with betiefil 
of survivorship in the event of the death of any sons 
under 21, or any daughters under that age and unmar* 
ried ; that George Vere Hobart soon afterwards died^ 
leaving hb wife, (who shortly died) and George Bobert 
Hobart his eldest son and heir, and five younger 

The Master farther found that George late Earl of 
Buckinghamshire having died, leaving Albinia Countess 
Dowager of Buckinghamshire, and George Robert Hd^ 
bart having attained 21, and having declined to par* 
chase, Robert Earl of Buckinghamshire and John SuUioan 
contracted to sell the estates ; and on investigating the 
title of the testator George Vere Hobart, it being die* 
covered that the indenture of appomtment of the 9th of 
Februatyj 1790, had not been enrolled in the Court of 



Chancery,' tlie present suit was institiitci] in order (o 18 IS. 
have that defect supplied; that in the mean time it was v \'e 
agreed between Robert Earl of Buckinghamshire and Buckingiiam- 
«M« SuUivany and George Robert Hobart^ upon whom, ^^^^ 
in case of failure of the i4)pointment of the 9th of Hobart. 
February^ 1790, the remamder in tail in the Wray estates, 
after the life estate of Albinia Countess Dowager of 
Buckinghamshire^ descended, that George Rabat Holyart 
should concur with them and the Countess Albinia in 
making a good title to the purchasers, without prejudice 
to his rights as to the purchase-money of the JVray 
estates, in case the defect of enrolment should not be 
supplied; and accordingly by an indenture of the 19th 
oi Naoemba'j 1810, and certain recoveries suffered ni 
pursuance tliereof, the Wray estates were settled to the 
use of such persons as the Countess Albinia and George 
Robert Hobart should by deed appoint, and in default of 
appointnient to the use of the Countess for life, by way of 
restoration and confirmation of her estate for life there- 
in, remainder to the use of George Robert Hobart in 
fee; and the Countess and George Robat Hobart had 
concurred in executing the contracts for the sale of the 
Wray estates, and Rolyert Earl of Btickinghams/iire and 
John Stdlivan had executed the contracts for the sale of 
the purchased estates, and out of the purchase-money 
bad paid the 12,710/. to the executor of the late John 
Earl of Bttckinghamshire^ tiie surviving trustee, and tlu; 


sums of 3500/. and 1000/. to the parties entitled, and 
having kept separate accounts of the application of the 
purchase-monies, had charged, the Wray estates with 
6000/*, part of tlie 12,710/. 

The Master also found that tlie 12,710/. arose from 
an investment in stock of the 10,000/. raised out of the 
estates of Sir R. EUys, and received by John Earl of 
Buckinghamshire and Robert Weston aft trustees for the 

Vol. III. P younger 


1818. younger children of George Hobart and Albinia his 

^ „ \ "- ^ wife ; and that the sum of 60002. was paid out of the 
Earl of . '^ 

BucxiKGHAM- 12,710/. in satisfaction and discharge of the 6000L 
SHIRE provided by the will of Sir Cecil Wray^ and a recript for 
Hobart. the same was endorsed on the release of the 17th of 
August^ 1791, but he did not find that the same or any 
of the securities for the same were then any otkerwiae 
released, or that the said charge on the Wray estates, or 
the securities for the same, were extinguished, releasedy 
assigned, or otherwise dealt with, except as aforesaidy 
and except that after the contracts of sale, the term of 
500 years was assigned, and that the Countess ABnmOj 
after the decease of George last Earl of Buckingham* 
shire, paid the interest of the 12,710/. as tenant for life 
in possession of the Wray estates ; and by an indenture 
dated the 16th oi Januaryy 1811, the trustee of the 
term of 500 years assigned it, subject to the mor^pages 
of the 9th and 10th of February^ 1790, and 16th and 
17th of August^ 1791, in trust for the Countess ^/^mue, 
George Robert Hobart^ Robert Earl of Buckingham^ 
shircj and John Sullivan^ their heirs, &c. in trust to attend 
the inheritance. 

The Plaintiffs insisted that the 6000/. having been 
originally charged on the Wray estates, they ought still 
to be considered as charged therewith, savmg the eflfect 
of the sale and conveyance to the purchasers, and that 
sum ought to be paid out of the money arising firom 
the sale of the Wray estates in exoneration of the puT» 
chased estates. 

The cause now came on for fiirther directions. 

Mr. Belly and Mr. Wetherel^ for the Plaintiffs, cited 
Jones V. Morgan, {a) 

(a) 1 Bro. C. C. t06. 



Sir Samuel BomUhfj and Mr. Benyon^ for the De- 1818. 
fendants. i^\ * / 

Earl of 
All the parties intended to extinguish the charge, Bcckinguam* 

and it is in fiict extingubhed. The transaction was cer- ^"^^ 

tainly founded in mistake ; George Vere Hobart acted on Hobaet. 

the erroneoos supposition that he was tenant in fee, and 

had he known his title as tenant in tail, would probably 

have taken care to maintain the charge. — But the 

ijnestion is^ Whether on such conjectural reasoning, 

(he Comt can interfere to do that which the parties 


Hie reply was stopped by 

The Lord Chancellor. 

On the hearing of this canse it appeared to me impos- 
sible to determine whether those who represent the per- 
sons by whom die 6000Z. were paid were entitled to main- 
tain that that sum should in equity be a charge on the 
Wray estates, without knowing accurately how the secu- 
rities haive been dealt with, and every particular of the 
transactions. The case now comes before the Court 
from the Master, on a long and complicated detail of 
Gicts, the effect of wfaicii, Iiowever, may be stated in 
few words. 

The question does not depend much on the doctrine 
rdative to tenants for life or in tail |)aying off incum- 
brances. The rules of the Court in those cases are 
wdl under9tood% If a tenant for life pays off a charge Effect of 
wfi Ae estate, prima fade he is entitled to that charge ^^a ""^W^^ * 
for his own benefit, with the qualification of having no tenant for life) 
interest during his life; if a tenant in tail, or in fee |^^ ^'^'"^"' '»« 
simple, pays off a charge, that payment is prima facie 
piesumed to be made in fevor of the estate ; but the 
presumption may be rebutted by evidence as by call- 

P 2 ing 


1818. ing for an assignment, or by a declaration. In The 
Earl of Countess of Shrewsbury v. Jlie Earl of Shrewsbury^ (a) 

Buckingham- it was held that if a tenant in tail without power of suf- 

^^ fering a recovery, who was considered in Uiis Court as a 

HoBAET. tenant for life, paid off a charge, his dealing did not 

Tenant in uil ^^^^^ ^^ presumption which results from payment by a 

withontpower ^e^ant of the inheritance, 
of suffenng a 
recovery, con- 

MuitTas'te- In this case, the original settlement charged on the 
nant for life. Wray estates, which the Countess Albinia became en- 
titled to, a sum of 6000/., secured by a term' of 500 
years. In the course of dealing with these estates, a , 
recovery was suffered by Albinia and her husband, and 
the estates were limited to certain uses to be declared by 
a deed enrolled in Chancery in execution of a power, 
and in default of appointment, to the old uses ; the exe- 
cution of the power being defective, in consequence of 
an omission to enrol the deed, the estates remained in 
Albinia^ and eventually came to her second son as 
tenant in tail. Under the effect of this imperfect exe- 
cution of the power, all parties conceived him to be 
tenant in fee, and there ^was a scheme for paying off* 
the 6000/. and other sums, by borrowing an amount 
of stock which produced 12,710/.; and it being sup- 
posed that George Vere Hobart was tenant in fee of the 
estate of which he was only tenant in tail, a mortgage 
was made of this estate and of some other estates, of 
which he was tenant in fee, for 12,710/., and of that 
sum 6000/. were applied in payment of the portion 
charged, and a receipt was given; but the term re- 
mained in no way dealt with, and has not yet been 
assigned to any one. The sales are without prejudice to 
the question. 

{a) 5 Bro, a C. 130. 1 Vei. Jun, 227. See Ware v. PolMU^ 
11 Ves, 257. Bedmgton v. Redington, 1 Bail 4* Beat. 131. 



ir we are to advert to cases on the intention of tenants ] 8 1 8. 
in tail paying off charges, tho answer to applying that p^Vf 
doctrine to this case is, tlmt the party never con- Buckingham- 
ceived himself to be tenant in tail ; believing that he **"J**^ 
was tenant in fee, his meaning unquestionably was to Uobart. 
pay off this sum of 6000/., and so that it should no 
longer be a charge on the estate, but at the same time, 
by virtue of his interest as tenant in fee, to create a 
charge on the other estates for 12,710/., pajrt of which 
bad been applied in payment of the 6000/. 

George Vcrc Hobart died in ignorance that the mort- 
lE^agees had a bad title, and with a conviction that the 
estates were discharged of the 6000/. ; at least I think 
^at it must be so taken : it now appears that the title 
of the mortgagees was bad. Suppose that the question 
had arisen with them. They dealt for a security for Right of oiort- 
12,710/L, not taking an assignment of the- term, but f,eS^t ofll'^ 
omitting to take it on the ground that that term would term aucnd- 
fee attendant on the inheritance in fee; it could not be heritance*^ 
so attendant on the fee in them, because they had not though the 
the fee ; but that term being attendant on the estate tail . assigned, nor 
which was in their mortirairor, and not barred by reco- ^^® mherit- 

. ^^^ '^ ance con- 

very, and it being the intent that the term should be at- veyedtothcm 

teiidaot on the inheritance, and tliat the inheritance 

should be in them, it could not have been maintained in 

a court of equity that they should not have the benefit 

of the term, because it could not be actually attendant 

on the inheritance in them ; as purchasers they would 

have a right to say otherwise. 

If George Vere Hobart had paid off the mortgage in 
his life- time, and taken an assignment, he would then 
have stood in the same situation as the mortg^igees, and 
would have been entitled to object to his issue in tail 
that they should not have the benefit of this sum, unless 

P 3 thev 







they allowed the term to attend the inheritance. His 
assets paid the charge. 

It appears to me that this case is not one in which the 
intention of the parties must be taken to have been to 
maintain the charge^ but to destroy it^ but it must 
finally be determined, that if the whole of the eetate 
cannot be enjoyed according to the whole of the inteii*- 
tion, the term, which has never yet been assignedf shall 
be considered as subsisting to secure the 6000/. I am 
of opinion that the parties are entitled to have the teim 
so considered. 

*' His Lordship doth declare that the Plaintiff Bob^ 

£ari of Buckinghamshire^ deceased^ and John StJliamf 

as devisees in trust under the will of George Vere Hd" 

bartj are entitled to have the 6000/.^ remainder of Ike 

mortgage for 12,7102. in the pleadings mentioned^ and 

interest, raised out of the fVrc^ estates ; and it is oc^ 

dered, that it be referred to the said Master to take an 

account of what is due to the trustees for principal and 

interest in req)ect of the said 6000/. ; and it i^peariofip 

by the said Master's report, bearing date the Ist day of 

June, 1815, that the JVray estates have been sold, and 

the money arising therefrom has been paid to the Plain^ 

tiff Robert Earl of Buckinghamshire^ since decciaodj 

and John Sullivan^ it is ordered, that what the MaaCv 

shall find due in respect of the said 60002. and iutfertat^ 

be paid to such of the Plaintif& as are the younger ohiU 

dren of the said George Vere Hobart ; and for tfie bel^ 

ter taking the accounts, &c. And his Lordship doth 

not think fit to give costs ob ather side.'' Reg. LIU A. 

1817, fol. 22«.(c) 






. In 1740, ConstanHa Earnlc estates in Wilts and Herefardf 

isdi^nd^sist ^^ seized in fee of freehold worth about 800/. per annum, 
March, 1767. in 



JONES V. the GUARDIANS of the POOR of the 
Parishes of Montgomery and Poolj and the Parishes, 
Cbapelries, and Townships united therewith in tlie 
Counties of Montgomay and Salop. 

T) Y statute 32 Geo. 3. ۥ 96* eertain parishes, cha- June so. 

pdries, and townships were united and incorporated h»?iiJh!aiiced 

into one district for the purposes of the act; and all money to a 

persons inhabiting any of the parishes, &c and being established for 

assessed to the relief of the poor, and seised or pos- ^^^ mainte- 

^ '- nance of the 

of freehold or copyhold lands or tenements of poor of a ccr- 

the yearly value of 20/., or of any lands or tenements ^P ^*K^ 
, , ^ , were held en- 

'^rithin the parishes, &c. of the yearly value of 10/., or titled to com- 
of a personal estate to the amount of 500/., mcnt of nita^ 

• :• .v'i.;v.;;rl 

"Were incorporated by the name of the guardians of the sufficient, after 
poor of the parishes, &c. with power to sue, &c. and of the poor, to 
lidld lands, tenements, and chattels, &c. and to convey I?7 f^ ^^ 
or rdease^ &a such lands, &c. rest of their 

The ^«*^ 

in possession* and of other securing 200/. a-year pin- A woman, 

^sstates in reversion, (expect- money, remainder to Lord ^^"^ entitled 

^nt on the death of her mo- and Lady Duplin for their Iq possession, 

tiwr Constantia Eamkf who joint lives ; and in case the ana to others 

wmrived her,) of about 1200/. lady survived, then to her for |JJ,X?ec«isc 

^-year; subject to and charge- life; remainder, as to the ofhermother^ 

sBble with sundry debts and estates in reversion, to trus- settled them 

legacies of her fether. 12th tees for 500 years, which ^^^^^ 

«/tfff«, 1741, Miss Earnkf in never took effect ; remainder to trustees for 

prospect of a marriage with to the first and other sons of 99 jean to 

the Earl of Kinnoul, then Lord and Lady DupUn, in f!!"!!^^"^ 

' , J r ^ money, re- 

Xx>rd Duplin, covenanted tail male, remainder to such mainder to 

and agreed to settle all her uses, and subject to such herself and 

estates both in possession charges as Lady Duplin husband"for 

and reversion, to the use should, notwithstanding her their jc^t 

of trustees for 99 years, for coverture, by any deed direct l'«vw; and ia 

PM caie she 

4 or 







The Parishes 

off MONTOO- 

MKRY, &e. 

The act prescribed a mode of election of directors, 
any five of whom were eiirpowered to purchase lands or 
buildings for specified purposes, and to contract for and 
purchase provisions and materials (or maintaining and 


bhoiild sur- 
vive, remain- 
cler to her for 
life; with 
remainder as 
to the estates 
in reversion, t6 
tlic first and 
other sons of 
the marriage 
in tail male, 
remainder to 
tHich uses as 
she, notwith- 
standing co- 
:ihould ap- 
point, and in 
default of 
remainder to 
her in fee; 
with remain- 
der, as. to the 
estates in pos- 
session, after 
her death, to 
such persons 
as she should 
appoint, with 
J ike remain- 
dor in default 
of appoint- 
ment; and by 
the marriage 
articles it was 
agreed, that if 
the husband 
would have 
been entitled 
to be tenant 
by the curtesy, 
in case of 
no settlement, 
he should en- 
joy the lands 

or a{)point, and for want 
thereof, remainder to Lady 
Duplin^ her heirs and assigns; 
and as to the lands in posses- 
sion, after Lady Duplin s 
death, to the use of such 
person or persons, and sub- 
ject to such charges, as she 
should appoint ; with the like 
remainder in fee to her own 
lieirs in default of appoint- 
ment. And it was by the 
marriage articles agreed, that 
in case Lord Duplin should 
be or would have been enti- 
tled to be tenant by the 
curtesy of all, or any part 
of the estates, in case of no 
settlement, then that he 
should ehjoy such lands for 
his life, as if no articles or 
settlement had been made, 
and that the estates should 
ahev his death follow the uses 
limited as above. 

The marriage was had, and 
Lord Duplin earned his cur- 
tesy estate ; but the child died 
very young. Lady Duplin 
having, previous to her mar- 
riage, treated about the loan 
of 2500/. to pay her father's 
debtS; and some of her own, 
completed the mortgage in 

Juli/y 1741, (soon after tha 
marriage, ) wherein Lord Du- 
plin joined, and covenanted 
to pay the mortgage money» 
which was secured on the 
estates, both in possession and 
reversion. In 174'6, they 
raised the further sum of 
4500/., secured likewise on 
both estates. In 1752, an 
arrear of the interest having 
accrued on both sums, 
amounting to 1000/., the 
mortgagees assigned, and 
Lord and Lady Duplin con- 
firmed both estates to new 
mortgagees, for securing 
§000/. and interest. 

20th June, 1753, Lady Du- 
plin made her will, and charg- 
ed her estates in reversioa 
with the payment of certain 
debts of her mother, and of 
sundry legacies given by her 
own will, and directed that 
they should be a lien and in- 
cumbrance on those estates, 
and be raised and paid by 
sale or mortgage, as soon as 
might be after her mother's 
death ; and she devised the 
said estates in IViils and 
Herefordshire, subjected by 
her as aforesaid, to her hus- 




employing the poor; and declaretl that it should be law- 
ful for the directors, or any five of them, for and in the 
name of the cori>oration of guardians of the poor, from 
time to time to borrow and take up at interest any sums 





The Purishcs 

MEEY, &C. 

(>ttnd Lord KinnotU for life, 
witli power to make leases ; 
2Uid aflcr his decease she dc- 
vieed the same estates, so 
subjected and charged by her 
418 aforesaid, together with 
certain other estates in Wilts 
and Herefordshire, ** subject 
to such incumbrances as the 
^:imc are now subject to/' to 
Mr. Washbourn and others, 
i'oT their lives, and the sur- 
vivor of them ; then she 
devised all the said estates 
which' were her late father's, 
as well those jointured as 
otherwise, " subject to such 
incumbrances as tlie same are 
nonr subject to," and all her 
estates, &c. unto the Defend- 
tni James Mone^ and his heirs 
for ever. 

Lady Duplin died ^th 
June, 1753, without issue, 
and witliout revoking her 
will. This bill was soon after- 
wards brought by Lord Du- 
pliiiy in order to have the 
estate sold to satisfy the in- 
cumbrances, and that a value 
might be set on his life estate, 
and that he might have a con- 
trihution from the persons in 
remainder of the reversionary 
estates, for the interest paid 

in Lady Duplin^ lifetime, 
and since her decease, and 
before the death of Lady 
Duplin}^ mother. The De- 
fendants insisted that the 
mortgagees remaining satis- 
fied with the security, the 
estate ought not to be sold, 
and that the sum of 8000/« 
being advanced during the 
coverture, ought to be consi- 
dered as the debt of Lord 
Duplin himself, and that he 
ought to keep down the inte* 
rest of the same. 

At the hearing the Plain- 
tiff's counsel relinquished the 
prayer of sale, and prayed 
that Lord Duplin might re- 
deem the mortgagees, and 
that the Court should declare 
the estate to be liable to the 
debt of 8000/., the money 
being advanced for the use 
of Lady Duplin herself, and 
that the Defendant might 
contribute towards the inte- 

Mr. Yorkc, Solicitor Gene- 
ral. — The question is, whe- 
ther this is not a debt to be 
charged upon the estate, and 
whether therefore the Plain- 
tiff as tenant for life, is not 
intitled to redeem ? and tlie 


as if no settle- 
ment had been 
made. The 
husband be- 
came entitkMl 
to*be tenant 
by the cur- 
tesy; after the 
marriage, a 
sum oiiSQOl. 
for paying 
debts of die 
wife due prior 
to the mar- 
riage, was 
raised by 
mortgage of 
the estates, 
the husband 
joining and 
for payment 
of the mort- 
gage money; 
and a further 
sum of 450d/. 
was raised on 
a like security; 
and afterwards 
a sum of 1000^. 
for paying in- 
terest on the 
former sums : 
the wife died 
without issue 
surviving her, 
having by her 
will devised 
the estates to 
her husband 
for life, with a 
limitation of 
them ader 
his decease, 
** subject to 
such incum- 
braiiccb as 






The Parishes 

M BAY, &C. 

of money not exceeding in the whole the sum of 1 S^OOOily 
in sudi shares or amounts of not less than 100/. each, 
as should be judged most convenient, and therewith to 
pay the expenses of obtaining and passing the act, and 


they were then 
subject to :" 
on a bill by 
the husbeiul, 
an inquiry was 
directed into 
cation of the 
nionev raised, 
band was heid 
from so nrach 
as was am^ied 
to the wife's 
use, except 
that as tenant 
for life be 
ought to keep 
down the iiip> 
terest; but 
the will of the 
wife was con- 
strued not to 
charge the 
estates with 
in exoneration 
of the hus- 

ground on which the Defend- 
ant must argue this, it much 
too large ; for the Court has 
never yet said that a wife 
cannot make a gift to her 
husband. This Court has 
never yet broken in upon the 
rule of law, that wherever a 
feme covert levies a fine, and 
declares the uses tliereof, she 
may give a benefit and inte* 
rest in the estate to her hus- 
band. Lord Huntingdon's 
case, (a) A sum of money 
was borrowed on Lady Hun- 
tingdon'a estate for my lord's 
use ; Lord Huntingdon after- 
wards took an assignment of 
the mortgage in trust for 
himself, and devised the same 
to his second wife : upon an 
appeal the lords decreed that 
the mortgage should be as- 
signed to the heirs of the first 
Lady Huntingdon. This ap- 
peared on the deed itself to 
be borrowed to buy Lord 
Huntingdon a plaoe. So in 
the case of Tate v. Austin, [b) 
But in the present case, it is 
a gift from the wife to the 
husband; nothing appears on 
the face of the deed to shew 

the money was raised for the 
benefit of the husband. Id 
the case of Bagot v. Ough" 
ton(c)f it appears there waa 
a covenant from the husband 
to pay the mortgage money, 
yet his personal estate was 
held not to be liable to pay 
the same, because it was not 
his debt. In the present case^ 
this is the proper debt of the 
wife; the treaty for the mort- 
gage was before the marriage, 
and the application of the 
money raised was in dis« 
charge of debts of Lady Dw 
plin*s father ; and all that 
lias been raised since the first 
mortgage,, has been applied 
in discharging her debts. But 
in case this would not avail 
the Plaintiff in order to make 
this, to be considered as Lady 
Duplin'B debt, and for which 
the estate will be liable, yet 
it plainly appears to be the 
intention of Lady Duplin^ to 
make her estate chargeable 
with this incumbrance in the 
hands of the remainder man, 
-for she devises it to him sub- 
ject to such incumbrances, as 
it was then charged with. 

(a) 3 Vgrn. 437. 

(b) I P, W. 964. 

(r) 1 P. W, 547. 

Mr. Harleyy 



mich interest of the mans irom time to time borrowed, 
as sboiikl become duo daring the three yean next after 
the first oourt or meeting, and also the expenses wbidi 
should be incurred in or be incident to the purchasing, 


Mr. Harieyf for the Plain* 
ti£ The questions are, 1 .Whe- 
ther Lord 7>ir)9&ii is to be con- 
sidered as principal debtor, > 
and the land only as a colla* 
tersi security ? 2. Whether 
Lord DupUn is a creditor for 
the interest paid ? As to the 
firrt» th& case differs from 
Poeock T. Lee (a), for here 
die money was raised not for 
the use of the Plaintiff; but to 
pay the debts of Lady Dtc- 
jsfiff. And though the mort- 
gage was executed after the 
TioBTtiagej yet it was in con- 
sequence of an agreement 
before ; and though the Plain- 
tiff covenanted to pay the 
moneyythat can be of noweight, 
for no person else could core- 
nant ; and in the case ofBagoi 
Y. Otigkttm, it was held that 
the land was liable^ and the 
corenant only a collateral 
security, ^ly^ Whether the 
Phiintiff is entitled to a con- 
tribution out of the estate in 
rerersion towards payment of 
interest ? The estate in re- 
version as well as that in pos- 
session, was in the contem- 
plation of the parties at the 

time of lending the money. 
Nothing further was intend- 
ed, only that the estate in 
possession should be the pri- 
mary fund ; and when tlie 
words of Lady Duplin e will 
come to be considered, there 
can be little doubt ; for when 
she devises the remainder of 
her estate, she makes use of 
the most general and com- 
prehensi?e words. No intent 
appears in the will to throw 
the burthen upon the estate in 
possession only ; and then the 
inquiry will be, whether the 
estate in reversion should not 
contribute to the payment of 
the interest ? In the case of 
Carter v. Bamardiston (6), 
one seised in fee of the ma- 
nors of A. and B., mortgaged 

A. for 4000/. ; and by will 
charged all his real estate for 
pa3rment of his debts, and de- 
vised A. to C. and B. to D., 
and died; the devisee o£ A* 
shall compel the devisee of 

B, to contribute to the pay- 
ment of the mortgage on A, : 
Heveningham v. Hevening* 
ham (c), where two estates 
are subject to the raising a 




The Pkrishet 

MBST, Ac. 

(«) 2 yem. eo<. 

a) I P. W. 505. 

(r) 'J Vem. 5SS. 






The Paribhct( 

M£BY, &C. 

conveying or hiring the said lands, tenements, goods 
and chattels, the erecting and furnishing a house or 
houses of industry, and first setting the poor to work 
therein, and such other costs and expenses as ought, in 


In what case 
a mortgagee is 
entitled to a 

What relief 
may be grant- 
ed under the 

portion for a daughter, by a 
term of 100 years, after the 
decease of two several lives, 
and the life on one estate falls, 
andcT. S., to whom the estate 
comes, pays the portion, and 
afterwards the life on the other 
estate falls, J. S. shall have 
contribution. So that upon the 
reason of these cases. Lord 
Duplin the Plaintiff ought to 
have contribution out of the 
estate in reversion, now fall- 
ing into possession by the 
decease of Lady Duplins 

Lord Chancellor Hard- 
xjoicke. Some parts of tliis 
case are extremely clear. 
As to the prayer of a sale, 
that is certainly improper: 
the tenant for life of an estate 
subject to a mortgage is not 
entitled to pray such relief, 
though the mortgagee him- 
self might be, if he thought 
it a scanty security ; but the 
tenant for life is bound to 
keep down the interest. The 
clear equity is to have a re- 
demption, and stand in the 
place of the mortgagee ; and 
I think the plaintiff may 
pray anything consistent with 
the nature of his case, under 

the prayer of general re- 

I differ entirely from the 
Plaintiff^s counsel, who say it 
is incumbent on the Defen- 
dant to shew that the money 
was borrowed for the benefit 
of the husband ; for the 
general rule is, that where a 
husband borrows money on 
the security of the wife's es- 
tate, as the money is under 
his power, it is supposed to 
come to his use; and this 
turns the proof on him to 
shew the contrary. This 
Court prima Jacic considers 
it as a pledge for the hus- 
band's debts : and his estate 
shall first be applied to exone- 
rate it, unless a special case ap- 
pears. A distinction is made, 
which appears in the case 
of Bagot V. Oughton, where 
a wife had joined with her 
husband by way of mortgage, 
to raise money on her estate, 
and there was a prior mort- 
gage on such lands, and the 
husband has joined in the as- 
signment, and covenanted to 
l)ay the money, the land there 
shall be liable, and not the 
husband. But though this is 
the general rule, that tlie hus- 

that nxM 
the secui 
his wife*] 
estate is 
plied to 

is bound 

But that 
may bei 



the opinion of the directors, or any five of them, to l)e 
discharged and defrayed thereout ; and also to convey 
and assign over by writing, under the common seal of 
the corporation, and the hands of some five of the 



The Parishes 

MRRY, &C. 


1 evi- band shall be liable, yet it is 

e, that jjyj ^j^ equity, and therefore 

nplied in it may be rebutted by another 
equity, which may be set up 
by parol proof. It has been 
insisted that' this money was 
paid and applied in discharge 
of Lady Duplin s debts ; but 
the proof goes only to 2500/., 
and therefore I think that it 
will be proper to send this to 
the Master to be further in- 
quired into, and let it come 
back on his report. 

Mr. Attorney General Sir 
Robert Henley^ insisting to 
have his Lordship's opinion, 
whether Lady Duplin* % will 
had not made the estate 
liable to this mortgage, and 
discharged her husband; that 
point only was directed to be 
spoken to. The words of 
the will on which the doubt 
arose, were in the devise of 
the remainder to W. and 
A. for life, remainder in fee 
to the ' Defendant Moneys 
subject to the incumbrances 
the estates are now charged 

Lord Chancellor Hard- 
toicke gave his opinion upon 
this part of the case. If 
Lady Duplin has by her will 

charged this estate with this 
incumbrance, then there will 
be no occasion to direct the 
inquiry before the Master; 
and though Lord Duplin did 
deserve all the bounty that 
could be shewn a very affec- 
tionate husband, yet I must 
make such a construction as 
is agreeable to law. The 
question is, whether Lady 
Dupliny by devising this es- 
tate to her heirs at law, with 
particular interests, subject 
tQ such incumbrances as they 
are now charged with, has 
thrown the burthen of these 
incumbrances upon the estate? 
And upon the best consider- 
ation I can give this matter, 
I do not think the words 
can have that operation ; and 
if I was to be of that opinion, - 
I think it would be of very 
dangerous consequence. 

Lady Duplin had two es- 
tates, one in possession, the 
other in reversion. Both 
these estates were subject to 
the mortgage: her intention 
by her will was, first, a just 
one, to pay her own debts; 
next, a generous one, to dis- 
charge such debts as were 
due from her mother^ at her 







MBKY, &C. 

directorsy to the respectire persons adrancing or lending 
the said monies, all and every the houses, lands, ten^ 
ments, &c. of or belonging to the corporation, and also 
all or any part of the poor rates and assessments to be 


own death, and to give several 
legacies; and these she 
charges on the estate in re* 
verston : then she devises the 
estate in reversion to Lord 
Duplin for life, subject as 
aforesaid ; that is, to her own 
debts, to her mother's ddbts, 
and to her legacies; and after 
the decease of Lord Duplin^ 
she gave the said estate to 
W. for life, then to the De- 
fendant ikfofuy tn fee. This 
was a devise of the remainder 
of the reversionary estate; 
and then she devises the re* 
matnder of the estates in pos* 
session to the same person, 
subject to such incumbrances 
as they are then charged 
widi* The question is, there- 
fore, whether these words 
are such as the law would 
have supplied, and therefore 
nugatory; or whether they 
are intended to discharge 
Lord DmpliH of what he 
otherwise woidd have been 
liable to ? I think the for. 
mer is the right eoostructioo. 
Can any stronger words be 
made \iie of by a drawer of a 
win to express that the in- 
cmnbrances ^ould remain in 
the same stale, and that no 


alteration was intended in 
the nature of them? And 
where the real estate is by 
will made liable to the debts, 
shall not an heir at law or an 
lutretjadus have the benefit 
of the personal estate to ex* 
onerate the real? Suppoae 
a mortgagee should take a 
bond of a third person, as a 
further security, and tiie 
mortgagor was to devise die 
land subject to the incum* 
brances, would this dischaijge 
the bond? 

But I go further hi lUs 
case, and I think the drawier 
of the will had a view to 
make a difierence between 
the diarge by will, and the 
charge of the mortgage. He 
was afraid it would liswe 
made both the estates aob^ 
Ject to the same charge as 
the estate in possession 
before ; and the intention 
to make the estate in rever* 
sion chargeable, with what 
was imposed by the wiil^ and 
also the mortgage incnn^ 
brance, but to subject die 
estate' in possession only to 
the mortgage : and therefiNRS 
I am of <qpinion, that thePlaiB* 
tiff Lord jDapA'aisstiUliaUe 




coUeoted within the pariihes, &c as a secnriCy (or the 
xepayment of the principal sums so borrowed with 

The act then directed that the conveyance and assign- 
ments should be in the form of a deed-poll, by which 


to this debt, subject to such 
mqdry as is before men- 

The Master reported that 
250(tf. were applied for Lady 
Dtqdin's use, or in payment 
of her father's debts, and that 
the remaining 4500^., except 
about 2MLf were received by 
Lord DtqsKHf and applied to 
his own use. Though the 
report was not confirmed, the 
ffadndff declined to bring on 
the cause in that manner, be- 
cause Lord Harthoici^B di- 
rections seemed to bear to- 
wards charging him with part 
of the 80001., and therefore 
die cause came on by way of 
rdiearing; but Lord Cavu 
deHf C. objected to the me- 
thod, and on saying he should 
not Aink himsdf bound by 
the former decree if he were 
ot a contrary opinion, the 
parties consented that the re- 
port should be read as if con- 
firmed, and that the cause 
might come on for further 

Mr. Attorney General de 
Grey for the Plaintiff. The 

dispute here is between the 
devisees and the heirs at law, 
whether these estates are not 
to be considered as estates of 
the wife charged with the 
husband's debts, and that 
consequently his assets ought 
to exonerate the mortgaged 
premises ? The first point is 
to consider the incumbrance 
on the general principle, in- 
dependent of the will: 2d. on 
the construction of the will, 
explanatory of the lady^s 

The general rule is, that 
wherever the wife's estate is 
pledged for the husband's 
debts, h» covenant shall bind 
his own assets, he becomes 
the principal debtor, and the 
wife's estate the security. 
The exceptions to the rule 
are, when it appears that the 
husband did not receive the 
money; so it is when the es- 
tate comes mortgaged to his 
hands, and he assigns, thotigh 
he gives a bond, and cove- 
nants to pay the money : here 
the ride is reversed, he is 
only the surety, and the es- 
tate the real debtor ; and this 



The Pariihss 

MIRY, Ac. 




1818. the corporation of guardians for the poor of the 
parishes, &c. by virtue of the act, &c. conveyed and 
assigned to A. B. the houses and hereditaments be- 
ofA^^NToo^ longing to the corporation; and the poor rates or 
MRRY, &c. assess- 


The Parishes 

is settled in Bagot v. Ougli- 
ion (a). Thus the leading 
principle governs in respect 
to an entire disposition of the 
mortgage money ; but wlicre 
the application is of a mixed 
nature, the Court will not 
weigh it minutely, nor split 
the consideration money ; 
agreeable to Lewis v. Nan- 
gle {b)y which was stated as 
follows, from Mr. Attorney 
General's note book; Mar- 
garet Lhyd being seised of 
an estate in fee previous to 
her intermarriage with Nan- 
gle the Defendant, by arti- 
cles covenanted to settle the 
estate on the husband for 
life, and afterwards on the 
issue of the marriage, with 
remainder to herself and her 
heirs, and there was a clause 
by which the husband and 
wife jointly were empowered 
to revoke those uses^ and to 
resettle the estate: they did 
afterwards accordingly re- 
voke the uses, and mort- 
gaged the estate for a sum of 
money, part of which was to 
enable the husband to carry 
on his trade, and to pay hi? 

(fl) 1 >. W. 347. 

debts, which he was unable 
to pay, he being very poor 
at the time of the marriage ; 
and the other part to pay her 
debts, and he covenanted to 
repay the mortgage money : 
and subject to tlie mortgage, 
they resettled the estate on 
their children, with remainder 
to her and her heirs; and the 
bill was brought to have the 
estate discharged of the mort- 
gage money, by the Defen- 
dant. In that case Lord 
Hardwicke would not deter- 
mine the matter upon any 
general principle, but was of 
opinion that Naiigle was 
obliged to keep down the in- 
terest of the money, and that 
the estate should pay the prin- 
cipal. But in that case the hus- 
band had given up a power of 
committing waste. It is ma- 
terial here, that the wife join- 
ed in mortgaging, and that 
part of the money was appli- 
ed to her use, and in pay- 
ment of her mother's debts ; 
and there is no instance that 
in such case the husband 
shall disincumber. 

2d. As to the point of 

{b) Anib, 150. I Cor, 240. 




assessments to be raised and collected within the 
parishes, &c. with all powers and authorities for en- 
tering into and upon the houses, &c. and for receiv- 
ing the rents, &c. and also for collecting and raising 



The Parishes 

MBAT, &C. 

mmtentiony she charges her 

^3State in reversion with debts 

suid legacies; the estates in 

jpossession are devised subject 

such incumbrances as the 

are now subject to : she 

'^rould have said discharged, 

xf she had meant to charge 

lord KinnouPs own estate 

or his assets* 

Mr. Yorke on the same 
_ side. This is a question of 
construction on the will, whe- 
ther Lady Duplin intended 
that the whole 8000J^. should 
1>e satisfied out of her own 
estate? For the previous 
question as to the original in- 
tention at the time of the 
loans, will lead to the second 
<if construction, and if Lady 
Duplin agreed that her es- 
tates should originally be lia- 
ble, it will corroborate her 
will. The heir of the wife, he 
allowed, would be a creditor 
on the assets of the husband; 
and his real assets shall ex- 
onerate, where the wife has 
no part of the money paid to 
her use, or in discharge of 
her debts; but it is otherwise 
when applied for the benefit 
of both ; as in Lexvis v. Nanglcf 
decreed by Lord Hardwicke 
Vol. IIL 

in 1752, if the wife is entitled 
to a jointure, and levies a 
fine to let in a charge on that 
estate, the husband shall 
make a satisfaction. Equity 
will not suffer her tenderness 
for him to prejudice her. So, 
if she does any act to charge 
her own estate, whether set- 
tled or not, the husband shall 
exonerate. The first pre- 
sumption is that she does it 
for his benefit ; but this may 
be repelled by facts. Tate 
V. Austin^ Lord Huntingdon's 
case, and Pocock v. Lee. Yet 
the law is otherwise, as in the 
present case, where the hus- 
band is a purchaser of the 
incumbrances, by giving up 
his rights; he departs with 
his estate of freehold so long 
as the mortgage subsists ; he 
has given a consideration for 
the several loans, and they 
are to be considered as one 
entire transaction ; and though 
in such case, he must pay the 
whole in law, yet he will be 
relieved in equity. 

2d. How does it stand on 
the will ? Lady Duplin has 
reserved no equity, there is 
no rule of this Court against 
the husband, and shall this 
Q Court 



1818. the poor rates and assessments, to hold to A. B., his 

^ ^ ' executors, administrators, and assigns, for his and their 

0. own use, until the sum of /• and interest should 

The Parishes be repaid. 

<>f MONTOO- 


Court interpret the words; 
** subject to such incum- 
brance as the same are now 
subject to," to be expressio 
eorum qtue tacite insunt ? Do 
they not import that the de- 
visees shall take without any 
equity or demand against thfi 
husband? That every de- 
visee shall take cum onercy not 
only with regard to mort- 
gagesy but also the husband ? 

Mr. Ord on the same sidev 
The Lady here is to be con- 
sidered ^t juris ; she mort- 
gages in pursuance of a 
power; the articles were 
never carried into execution; 
the legal estate remained in 
her all along ; and, therefore, 
the personal coveuant of the 
husband ought not to be call- 
ed in aid of this estate. EvC" 
lyn V. Evelyn (a.) 

Wedderburn for the De- 
fendants, observed that the 
Plaintiff has brought this re- 
hearing afler an acquiescence 
of ten years under the spirit 
of Lord Hardwkkeh decree ; 
that the established principle 
is, that whosoever receives 
the benefit shall be the prin- 

cipal debtor, and liable to 
discharge the incumbrance; 
Lord Huntingdon'^ case : the 
reversal of that decree in the 
house of lords, laid the foun* 
dation of Tate v. Austin* 
With respect to the original 
security for 2500/., Lord Dtc* 
plin did no more than the 
Court would have compelled 
him to do ; that is, to mort* 
gage or sell part of the estate 
for payment of debts, to 
which th6se estates were 
subjected* In regard to the 
will she has shown no favour 
to Lord Duplin. He took' 
the same estate under the 
articles; and if she had ior 
tended to serve Lord Duplin^ 
she would have said so, at 
she has done with respect €0 
her mother's debts. There 
is nothing to show that she 
meant to subject the estates 
in possession, otherwise thaa 
the rules of law and equity 
subject them ; she had no 
benefit from the loan, it did 
not increase their income, aa 
in Lord Huntingdon's caset 
and thus the general principle, ' 
the authorities of the Courts 

(a) 2 P. W, 659. 




The act then prescribed the form of transferring the 
securities; and directed- copies or abstracts of the con- 
veyances, assignments, and transfer, to be entered by 
the clerk of the corporation in a book kept for that pur- 



The Parishes 

of MoNTGO- 
M£RY, &C. 

and the circumstances of the 
case, support the decree. 

Mr. Maddax on tlie same 
tide. The presumption is 
when money is borrowed by 
husband and wife on the 
wife's estate, that it is for the 
husband's use till proof is 
made to the contrary. Where 
the wife has the estate settled 
to her separate use, the rule 
isr stronger, that she only 
lends her estate to the hus- 
band, and it shall be his debt. 
To take the case out of this 
general rule, there must be 
evidence of an agreement 
between them. In the case 
of Lewis V. Nangle, there 
was the strongest implied 
contract, and evidence of 
agreement. The husband was 
necessitous, assigned over 
all for his benefit ; he had a 
joint power of revocation of 
the uses, and had nothing of 
his own to pay, or wherewith 
to exonerate her estates. 
There is no shadow of such 
evidence of agreement in the 
present case, or that the lady's 
estate should be charged with 
second and thhrd mortgages. 

But so far as they are liable, 
the two estates must be liable 
proportionably. The will 
only makes a difference as to 
the reversionary estates. It 
was necessary to give him a 
life estate therein, as he 
could not be tonantby the cur- 
tesy thereof. He cited Serle 
V. St. Eloy (a), which was the 
case of a devise of mortgaged 
and other lands subject to the 
incumbrances upon them, yet^ 
the devisees took them' dis- 
charged ; but this arose from 
a particular devise of lands 
for payment of debts, which 
shall mean all debts. 

The Attorney General re- 
plied. The cases cited for 
the Plaintiff were designed 
to show that the Court will 
vary the general rule upon 
small alterations. The ques- 
tion of intention upon the will 
is the true one. By the will 
she means to give Lord Dm- 
plin a certain income for hia 
life ; she knows not the equity 
of this Court, that the wife' 
and her estate are only a 
surety," and the husband's 
estate bound. The remain- 

(/i) 2 P. ir. 386. 

Q '2 







The Parishes 


pose, before any one claiming thereby should be entitled 
to receive the principal and interest. 

The act then empowered the directors or any five of 
them, for paying the principal and interest of money 


der men are volunteers, and 
it becomes a question whe- 
ther they have any right to 
have the debt out of Lord 
DupUn*a estate ? In case of 
pin-money, where many years 
arc in arrear, the husband's 
estate shall be liable only to 
one year; the rest shall be 
supposed a gift to the hus- 
band. The rents of the 
estate in possession were not 
sufficient to pay the interest 
of the 8000/. after paying lady 
Duplin^s pin-money; the in- 
tention is express and equal 
as to the whole 80001.^ and if 
the estate is to be the pri- 
mary fund as to legacies, it 
must be so as to debts. What 
construction shall we put 
upon the words, ^' subject to 
such incumbrances as the 
same are now subject to?" 
Do they mean subject as it 
was before in regard to the 
creditors, or as it now stands 
between my husband and me ? 
The sense put upon them by 
the other side gives no mean- 
ing or operation to the words. 
There* is not the least indica- 
tion of intention to charge his 
estates, or that her own 
should be a securitv as to the 

4500/., and the principal 
debtor as to the 2500/. In 
Serle v. St. Eloy^ there was 
not only a devise for pay- 
ment of debts, but the rents 
were to accumulate for the 
infant ; and it is a contradic- 
tion to say that part of it 
shall be taken away to pay 
the interest. 

Lord Camden^ C. This, in 
my opinion, is a clear case. 
The Earl of Kinnoul files the 
bill, and his principal view of 
relief, is to have the estates 
sold or mortgaged, and his 
part of the incumbrances dis- 
charged by such sale or mort- 
gage; for the relief is of 
course as to the debts of the 
mother. The 2500/. were 
manifestly borrowed to pay 
the debts of Lady Duplin's 
father. It is as manifest in 
point of fact, that the large 
sum of 4500/., except about 
200/., was applied by Lord 
Duplin to his own use. This 
brings us to the 1000/. for 
interest of both sums, which 
requires a mixed consider- 
ation. Lady Duplin devises 
her estate in possession to 
Lord Duplin for life, and ex- 
pressly charges it with her 




borrowed, and the expenses of maintaining the poor, 
and the other purposes of the act, to fix and charge 
upon the respective parishes, &c. such sums as should 
l>e needful from time to time, to be raised and paid by 





The Parishes 

XSBYy &c. 






mother's debts. The estate 
in reversion she likewise de- 
vised to him for life, subject 
to such incumbrances, 'as it 
was then subject to ; and 
onder these special circum- 
stances it has been contend- 
ed that equity will discharge 
him, as an exception out of 
the general rule. 

The principle iswell known, 
and old as the Court itself; 
that when husband and wife 
raise money out of the wife's 
estates, with the reversion to 
one or to the other, this Court 
inquires into the uses, consi- 
ders them as two persons, and, 
if I may use the expression, 
dissolves the marriage, pioad 
the transaction. Though the 
husband covenants to pay the 
money, and gives bond, yet 
the application determines 
who is the principal, who is 
the surety. This is the case 
of principal and surety at 
common law, the principal is 
first obliged to pay, and the 
surety only in default; in 
equity the surety comes in 
aid of the principal debtor. 
The cases of Lord Huntings 
don, Tate v. Austin, Pocock 
V. Lee, are all in point. 


It has been said, that where 
the husband has one part, and 
tlie wife another, the Court 
will not look too nicely into 
it, nor separate the debt. 
But no case has been cited 
to prove this point, except 
Lewis V. Nangle, which is so 
particular a case, that it can- 
not serve as a precedent ; nor 
is it an authority to govern 
in any other case, unless the 
circumstances are very like 
it. There the estate was 
settled, with a joint power of 
revocation ; the power was 
jointly executed, and the 
estate re-settled, subject to 
1300/. incumbrance, which 
they took up, and applied 
partly in payment of the 
wife's debts, and partly to 
establish the husband in trade, 
who was in necessitous cir- 
cumstances. Lord Hard" 
tvicke made two points, but de- 
clared that he meant not to 
lay down any general doc- 
trine as a positive rule. The 
first was as to the mixed sum; 
but upon the second, he de- 
termined upon the particular 
circumstances of the case. 
The equity is very nice, but 
it seems to me to be just. 
3 The 






The Parishes 
of Moi^soo- 


and out of the places respectively, as their quotas, accord- 
ing to the proportion stated in tlie act, and to issue war- 
rants to the churchwardens, &c. for payment of such 
sums to the treasurer ; and provided means for levying 


The money was not borrowed 
to pay the husband's debts, 
but to enable him to live, and 
he IS besides a purchaser of 
that very loan from the Joint 
power of revocation. 

My opinion having gone so 
far, I can see no reason why 
the Master shall not inquire 
into the application of the 
money. It would destroy the 
fundamental rule of this Court, 
to say who shall be principal 
and who the surety. As to 
the 1000/. interest, I do not 
see any reason that Lord Kin* 
noul should pay off the inte- 
rest of his lady's money, any 
more than the principal. He 
is bound indeed to pay the 
whole as to the mortgagees ; 
the interest would have been 
decreed to them in this Court, 
yet the husband would have 
credit for it, in an account 
here between him and his 


Thus stands the matter 
upon the articles; and now 
the next question is, whether 
the will has made any alter- 
ation? There a)re no words in 
the will, but only those, ** sub- 
ject to such incumbrances 
as the same are now subject 

to/' which can by any possibi- 
lity make the estate liable to 
the whole 8000/. These 
words import no intention as 
to the equity between the 
husband and wife, but only 
as to the mortgagees ; they 
must mean, subject to every 
incumbrance that the wife 
was liable to pay. But if I 
think with Lord Kinnoul and 
his counsel, I must say that 
Lady Kinnoul intended to 
pay the whole 8000/. upon 
the estate in possession, and 
that, subject to his life estate; 
and why should she intend to 
charge the estate in posses- 
sion, and not that in rever- 
sion ? It is expressio eorum 
qua tacite insunt, for the same 
words, " subject, &c." afe im- 
plied as to the estate in re- 
version. Mr. Yorke has laid 
great stress on the word, 
now, to charge the estate 
with the whole 8000/. ; and 
so do I, in support of my de* 
cree. For if the estate is to 
be otherwise charged oc 
affected, than it was at the 
time of making the will, it 
must totally alter it from its 
then situation. 
I am therefore upon the 




the money from the inhabitants of the parishes, &c and 
declared that the parishioners and inhabitants of the 
townships should be answerable for the sums so to be 
raised on them, and not paid by their respective church- 



The Parishes 

UEBY, &G. 

whole just as clear as Lord 
Hardmicke was> that the will 
makes no* alteration ; the 
prayer of the bill was to 
have the estate sold; but 
Lord Hardtoicke said that 
was improper^ inasmuch as a 
tenant for life of a mortgaged 
estate cannot ask to have the 
estate sold, but may redeem 
and put himself in the place 
of the mortgagee. I must 
therefore dismiss the rehear- 
ing, and confirm Lord Hard' 
wek^% decree, and as the 
Defendant, Colonel Money^ is 
desirous to redeem, let it be 
referred to the Master to in- 
quire how much of the 1000/. 
was applied to pay the inte- 
rest of 2500/., Lady Bu- 
plin*B part, and how much the 
interest of 4500/., the Plain- 
tiff's part. And let the De- 
fendants, the mortgagees, con- 
vey, on having six months' 
notice, after the Master has 
made his report, and being 
paid off; and with respect to 
that part of the case relative 
to the estates in jointure to 
Lady Duplin's mother, as 
directions have been already 
given in another cause, fT//- 


lianuon v. Earl of Kinnotdy 
the Court makes no order, 
but leaves the parties to 
apply; the mortgagees must 
have their costs decreed 
agreeably to the Master's 
report; as to the sums lent 
on mortgage, the estate of 
Lady Duplin is the prin- 
cipal debtor for the sum of 
27S3/. I9s. Sd., and Lord 
Kinnoul discharged thcre- 
fi'om; and for the sum of 
4266/. Os. 4tdy Lord Kin- 
noul is the principal debtor, 
and the lady's estate dis- 
charged therefrom. There- 
fore let each party redeem 
his respective share of the 
8000/., and the Defendant 
having offered to raise his 
part of the principal, inte- 
rest, and costs, in default of 
payment of the mortgage 
money, let the plaintiff's bill 
so far as it relates to this 
mortgage, be dismissed with 
costs; and reserve for future 
consideration how far these 
costs, or any, ought to be 
paid as between the parties ; 
and Lord Kinnoul must in 
the mean time as to the 
mortgagees, keep down the 
4 interest 



181 8. wardens, &c. and should be compellable to pay the same 

, ' upon re-assessment, and such rates, or assessments, or 

V. re-assessments, should be assessed, levied, and recovered, 

of MoNTGo- ®>^ ^^^ of such persons, and in such manner, as money 

MEKY, ^. assessed 

March 26. 

interest of the whole, but he 
shall be considered as a ftce- 
ditor for his wife's part of 
such interest, though he is, 
tenant for life, subject to the 

Lord Camden having doubt- 
ed whether he had determined 
rightly as to the psatter of in- 
terest, ordered the cause to 
be brought on again to day, 
when he said as Lady Duplin 
was the principal debtor for 
the sum of 2500/. raised by 
mortgage, he thought at 6rst, 
that she ought likewise to be 
answerable for the interest, 
but as Lord Kinnoul was 
tenant for life of the estate, 
and as such had received the 
rents, which were to pay the 
interest, he ought to pay the 
whole interest himself, for 
then he became the principal 
debtor for it; and therefore 
decreed that Lord Kinnoul 
should pay the whole 1000/. 
raised for interest. -^Mr. Hoi- 
lidat/'s MSS. (a) 

2l8t Marh, 1767-—" His 
Lordship upon the said Mas- 

ter's report, doth declare that 
the sum of 2733/. 195. Sd., 
part of the principal sum of 
8000/. advanced on the mort- 
gage of the estates in ques- 
tion, was applied to pay the 
debts and legacies which 
Lady Duplin was obliged to 
pay, and that therefore she 
ought to be considered as 
principal debtor for that sum ; 
and the Plaintiff, the Earl of 
Kinnoulf discharged there- 
from as against her heirs, 
save only tliat, as tenant for 
life, he ought to keep down 
the interest thereof; and that 
the sum of 5266/. 05. ^p 
other part of the said princi- 
pal sum of 8000/*, appears to 
have been received by the 
Plaintiff, the Earl ofKinnoulf 
only, and converted to his 
use; and that therefore he 
ought to be deemed the prin- 
cipal debtor for that sum, and 
also for the remaining sum of 
1000/., which was borrowed 
in order to pay the interest 
in arrear due for the said 
two former sums; and the 
Plaintiff the Earl of Kinnoul, 

(a) See Junes v. Jackson, 16 Ves. 556, I BUgh, 104. 



assessed for the relfef of the poor, was by the laws then 1818. 
in being to be assessed, &c. j v a 


It was also enacted (a), that as soon after the expir- of montoo- 
ation of 10 years from the first court to be holden for umki,Scc. 
putting the act into execution, as the expenses directed 
to be defrayed out of the rates or assessments (exclusive 
of any principal money borrowed) should be reduced 
to two parts in three of the average annual expenditure 
for seven years preceding JEo^/er, 1791, the directors, 
with the consent of the guardians, should appropriate 
an annual sum, not less than lOO/L, nor more than 300/., 
out of the rates, at interest, or in the purchase of stock, 
and lay out the interest, as an accumulating fund, until 
a sum should be produced sufficient to discharge the 
whole money borrowed. 

By Stat. 36 6. 3. c. 38. the directors were empowered 
to raise a further sum not exceeding 7000/. by annuity, 
and it was enacted, that all mortgages and grants of 
annnity, should be distinguished in the margin by a 
numerical progressive figure, and that when tlie direc- 
tors should think proper to pay any part of the money 
borrowed, they should setde by lot, or in such other 


(«) Section 19. 

being desirous that the estates cree; it is fiuther ordered, 

in mortgage should be re- that it be referred to the said 

deemedy and the Defendant, Master to take an account of 

Mr. Money, consenting to the principal and interest due 

raise and pay so much of to the Defendants, the mort- 

the principal, interest, and gagees> on theiap mortgage/* 

costs of the mortgagee, as he &c. — Reg. Lib. A. 1766 

ought to advance according fol. 368. 
to the directions of this de- 


1818. manner as should be consented to in writing by the 

^ " persons to whom the money should be due, which debt 

V. should be paid, and after notice of time and place of 

of ^^^^^ payment, no interest should accrue. 

MIKTi Sec 

Under the first act, David Pisgh, J. Turner^ John 
Pt^hy and Robert Griffiihs^ bankers at Poo/, advanced 
2,000/, to the corporation of guardians of the poor, 
who executed to them a mortgage, according to the 
provisions of the act 

The bill, filed on the 28 th November, 1816, by the 
assignees of Robert GriffUhs, the surviving partner in 
the banking*house, claiming to be entitled to the 2000& 
and interest as a charge upon the estate of the corpor- 
ation, alleged that the corporation purchased certain 
lands, and erected a house of industry thereon, and 
other buildings, and were seized and possessed of real 
and personal estate of great value, and had, by virtue of 
the act, been enabled to collect sums sufficient to pay 
the mortgage; and that Griffiths and his partners, pre-: 
vious to Michaelmas day 1815, gave the corporation 
notice to pay the mortgage ; and prayed an account and 
* payment of what was due on the mortgage, and that 
the defendants might, if necessary, be ordered to levy 
by proper rates, a sufficient sum to answer the mortgage 
debt, and all other mortgages and incumbrances afiect> 
ing the premises, and that the whole, or a competent 
part, of the estate and efiects of the corporation, might, 
if necessary, be sold for those purposes ; and that a 
receiver might be appointed, to set, let, and manage, 
all the real estate belonging to the defendants, and to 
receive the/ents and profits thereof, and to collect all 
sums due or to become due to the defendants by means 
of assessments or otherwise; and that all monies so re- 

3 ceived 



ceived and collected, might be applied towards payment 1818. 

of the demands of the plaintiffij conformably to the acts 

of parliament. «. 



The answer stated, that in consequence of the great KBar, te. 
expense incurred in the maintenance of the poor, the 
defendants had not been able to form any accumulation 
of money^ but were in debt 880/. Us.; that the only 
provision in the acts of parliament enabling the defend- 
ants to raise money for paying any sums borrowed, was 
the nineteenth section of the first act; (a) that the 
average annual expenditure of the seven years pre* 
vious to Easter 1791, amounted to 8,039/. 165. Ofd.; 
and the annual expenditure since the act considerably 
exceeded that sum, and in the year ending on the 30th 
of Jimey 18179 amounted to 8,1782. 145. 4d; that the 
defendants had been therefore unable to raise fimds 
sufficient for the payment of the money borrowed on 
mortgage, which amounted to 11,9002.; the event in 
which alone they are authorised to nuse money for that 
purpose, (namely the reduction of the annual expenditure 
to two-thirds of the average amount, previous to Easter^ 
1791,) never having taken place; but that they had 
directed 100/. per annum to be raised beyond their 
necessary expenditure, for the purpose 'of paying off 
the sums borrowed; and had applied 200/. in payment 
by lot ; the acts having directed that there should be no 
priority among the creditors. 

The defendants, allying that the estate and effects of 
the corporation were not sufficient to sadsfy all the 
mortgages, and that they had no power to sell for that 
purpose, submitted whether they were bouiyl or autho- 

(a) AnUf p. S05. 






The Parishes 

MS&Ty &C. 


rised tx> make any rates or assessments under the acts, 
or by sale of their estate to raise money for paying the 
debts ; and insisted that as the mortgage was granted, 
and the money secured thereby lent, under the first act 
of parliament, with full knowledge of the only means 
provided thereby for repayment, the plaintiff were not 
entitled to the relief prayed by their bill. 

The Plaintiffs having given notice of a motion for 
appointment of a receiver, to set, let, and manage all 
the real estate belonging to the defendants, and to re- 
ceive the rents and profits thereof, and to collect all 
sums of money due or to become due to the defendants, 
by means of assessments or otherwise, it was arranged 
that the caus^ should be heard at the same time with 
the motion. 

Sir Samuel JEUmiUy^ Mr.. Belly and Mr. Oweuj for the 
Flaintifis, insisted that the mortgagees were entitled to 
require the directors to levy sums sufficient for the pay- 
ment of the principal and interest of the debts. 

Mr. Homey and Mr. TempUy for the Defendants, 
contended that the directors were not authorised to 
raise sums not necessary for the maintenance of the 
poor ; and that the mortgagees must wait the gradual 
repayment provided by the acts. 

The Lord Chancellor. 

The object of the two acts on which the question 
arises, was to incorporate into one district, certain 
parishes and townships, for purposes which could not 
be accomplished without considerable expenditure, and 
it was necessary therefore to provide a mode in which 
funds should be raised. The first material clause is 

20 the 



the Slst section of the former act {a); and on reading 
that dause the question cannot fail to occur, how the 
difierent subjects of property which it enumerates, the 
houses and lands of the corporation, and the rates and 
assessments to be collected, can consistently with their 
nature and destination, be made a security for the re* 
payment of money borrowed. Recollecting that the 
purpose of the act was to construct buildings in which 
the poor were to reside, and levy rates by which they 
were to be supported, on a clause which contemplates 
the assignment of such subjects as a security for the 
repayment of principal and interest, the Court must 
put such a construction as is consistent both with the 
design of employing and maintaining the poor, and 
also with the security of those who have lent money, 
and who by the express terms of the clause, are to have 
security for the repayment of interest as well as of prin- 
cipal; and I agree that such must be the effect of the 
assignment whatever are its terms ; it clearly intended 
by some mode of dealing with the subjects assigned, to 
work out payment of principal and interest. 




The Parishes 


The clause by which the trustees are empowered to 
levy money from the parishes according to certain pro- 
portions, is material, because it may be worth consider- 
ation, whether the word ^^ empowered" does not give a 
construction to the words '^ all powers and authorities,'' 
in the' instrument of assignment. Whether the pay- 
ment of sums borrowed was not one of the purposes for 
which money was to be levied, is not left to conjecture; 
three purposes are specified; payment of interest, main- 
tenance of the poor, and repayment of principal; the 
other purposes are left to be inferred from general 
words. The plan was to determine the quota of each 

(a) Ante, p. 204. 







The Parishes 


parish by the proportion of its contribution in preceding 
years, but the aggregate to be r&ised was not limited to 
the amount raised in those years, but must be measured 
and ascertained by the purposes to which it was to be 
applied, including the repayment of the principal of 
money borrowed. 

In giving an opinion on the construction of this act^ 
] am dealing with a pure question of law. The 35th sec^- 
tion (a) directs that the assessments shall be levied and 
recovered in the same manner as money assessed for the 
relief of the poor; if, therefore, 1 were now to order the 
directors to levy money for payment not only of sums 
required in the maintenance of the poor, but of the 
principal of debts which the mortgagees desire to have 
discharged, or to appoint a receiver, and declare thai 
the money might be levied in the same manner as sums 
assessed for the relief of the poor, 1 should make that 
declaration at the hazard of what would be decided when 
the question was litigated in a court of law. 

The 19th section of this ill-drawn act (6) rather sup- 
ports than opposes the construction, that the directors 
have power to levy money for payment of principal. 
That clause was founded on the expectation of the cor* 
poration becoming rich ; and speaks not only of a redue* 
tion of the rates within 10 years, but of payment of prin- 
cipal within that period. The question is, whether the 
payment of principal was one of the expenses directed 
to be defrayed out of the rates ? I answer that ques- 
tion by reading the words in the parenthesis, ^^ exclu^ 
sive of the payment of any principal money borrowed.": 

There is great difficulty in the construction of the 
act, but that must be relieved by considering its policy 

(c) Ante, p. 205. (b) Ante, p. 205. 



and all its purposes. It is necessary to consider its 1818. 
policy; because if it deprives t)ie poor of the benefit of Jonbs 

the statutes otElizabelh, and the ordinary law, we must ^* . . 

The K ATisnet 
not put such a construction on it, as defeats all its pur- of Mosnroo- 

poses, and takes from the poor the bread which it meant mbbt^c. 
to give. Then, the purpose of the act first in import- The policy of 
ance, being the maintenance of the poor, and next the If^e^n^its 
securing to the creditor the principal as well as interest constructioa 
of his debt, and the act being probably founded on a 
supposition that principal would never be demanded 
except where it could be easily paid, and therefore 
framed in a way which presents great difficulties in dis- 
cussion, the question is, whether the parishes have not 
placed themselves in tliis situation, that they undertake 
to raise from time to tim3 such sums as are suflScient 
for the support of the poor, and the payment of interest, 
(in every clause mentioning interest, the act mentions 
also payment of principal), and having no fear that the 
principal will be demanded, they pledge themselves to 
raise money for that also, entertaining no doubt of 
being able to relieve themselves from any difficulty. 

My opinion is, that if a mortgagee calls for his money, 
and by consent of the other mortgagees, or by arrange- 
ment made under the second act for payment of prin- 
cipal, other creditors do not insist on equality, and all 
absence of priority} and if the corporation does not find 
other means of repayment, they must make assessments, 
which must be adequate, fii'st to the maintenance of the 
poor, next to the payment of interest to all the creditors, 
and lastly, to the payment of principal to the particular 
creditor who demands it. They have involved them- 
selves in thb difficulty, firom a confidence that the case 
would never arise. 

I shall certainly not object to a case for taking the 
opinion of the Court of King^s Bench, before whom all 



1818. cases relative to the support of the poor must come^ oil 

the question whether the directors are authorised to 

levy rates for the payment of the principal of debts ; 
The Parishes jj^^ g^^j^ -^ opinion. 

of MONTGO- •' ^ 

MSBY, &C« 

I will not say whether I shall appoint a receiver : this 
intimation of my opinion will probably produce an 

Juljf 1. 7. MORTIMER V. WEST, {a) 

Exceptions to fTHHE answer of the defendant, on a reference to the 
potmence master having been reported impertinent, the 

^*f*®*]^ .1. Plaintiff on the ISth of June, obtained an order for the 
takenafterthe ... , ^ n ^ 

impertinent master to expunge the impertmence; the Defendant 

S^a^ imff- ^^^^ ^^^ exceptions to the master's report, and on the 
ed, nor with- 20th of Jtm^, obtained an order for setting them down. 
oUdCT *5Sle Tl^® I^laintiff now moved that the order of the 20th of 
the order to June might be discharged for irregularity, and that the 
muns in force, master might be directed to expunge forthwith the im- 

A report of pertinence in the Defendant's answer, pursuant to the 

impdnnence , ^ ^ i n •■' 

having been order of the 1 3th of June. 

obtained by 

surprise, the 

master was Sir Samuel RomiUyj and Mr. Joseph Martin^ in sup- 

:SS.m^ port of the motion, 
ing under the 

order to ex- Admitting that under the authority of Noraoay v. 

punge, until ^ ^ j cr 

the exceptions Ronoe (A), exceptions may be taken to a report of impep- 
annied!'* tinence, after an order for expunging the impertinent 

matter, that order must first be discharged; to allow 
exceptions to the report, while an order to expunge 

(a) Reported on another pointy antc^ v. i. p. 558. {b) 1 Mer, 195. 



remains ill force, involves the existence of two incon- 1818. 

sistent orders ; one for reviewing the report, and another J^ . j-^ 

for carrying it into execution. v. 

Mr. Belt^ against the motion. 

It appears from the registrar's book, that in Norm t^ 
V. Bavoe^ the exceptions were set down for argument, 
while the order to expunge remained in force. 

The Lord Chancellor. 

In Noncay v. Baa^^ my opinion was, that notwith- 
standing the order to expunge, the Defendant might 
except; but there is this singularity, after expunction 
it is too late to except ; and when an order to expunge 
has been obtained, the Plaintiff may expunge imme- 


The Lord Chancellor. 

I have seen the r^strar's book; and I think that the Jm^ 4. 
order in Norway v. ^Rcnce was wrong in this respect, 
that it leaves the order for the Master to expunge the 
impertinent matter undischarged, and yet supports ex- 
ceptions to his report, {a) I have consulted the Mas- 
ters; and the notion which they entertain is, that the 
court ought in some way to dispose of tlie order to ex- 

(a) February 5rd, 1816. The and the order is as follows : ** His 
tntry recites an order of the Lordship doth order, that the De- 
list cif Aprils 1815, referring the fendant /. Rawe be at liberty to 
aaswer for impertinence; the file exceptions to the report of 
Blaster's report of the 7th of Mr.CVi}np6W/,one,&c.; and it is 
December ^ 1815, that the answer ordered, that the same be set 
was impertinent; and an order down before his Lordship."—-Rq;. 
of the 9th of December^ 1815, Lib. B. 1615, fol. 304. 
for expunging the impertinence; 

. Vol. III. R punge, 






punge, either by directing the Master to act on it^ or by 
discharging it before exceptions to the report can be 
filed. I rather think the better way will be to discharge 
the order. 

July 7. The LoBD Chancellor. 

For settling the practice of the Court I wish it to be 
understood, that after a report of impertinence, and an 
order to expunge the impertinent matter, exceptions 
may be taken to the report; but an application must be 
made to the Court for suspending or discharging the 
order to expunge, {a)' 


(a) In Crangert. October SOtb, 1792. 

ExQfptimM to 
a report of im- 
cannot be 
taken, nor be 
set down for 
a&ran order 

. Order of I9th May to refer 
Defendant's answer for im- 
pertinence ; report of imper- 
tinence dated 16th July; se- 
cond order to expunge dated 
ndijuly; impertinent matter 
in fact expunged on the 2Sd. 
Exceptions were afterwards 
taken to the report, and an 
order for setting down the 
exceptions to be argued was 
^ated on the 27th July. 

It was moved on the part 
of the Plaintiff to set aside 
tUs order for setting down 
the exceptions for irregula- 
rity; by reason that it was 
obtained after the matter re- 

ported impertinent was actu- 
ally expunged. 

And on the part of the 
Plaintiff it was insisted, that 
the Defendants had slipped 
their opportunity of except:^ 
ing, which they ought to hare 
done, if at all, before th^ 
order to expung^. 

Mitford, for the Defend- 
ants. The practice. m thesQ 
cases is calculated to prevent 
delay. Therefore the Mastei 
delivers out his report to the 
party applying for the reftr* 
ence, and the second order to 
expunge is made on motion 
of course. This, though a wise 




" Tbe Defendants afterwards moved, that tlie Master 
might be directed to abstain from acting under tbe order 
of the ISth of Junej until after the exceptions taken by 



practice in general, yet car* 
tainly goe^ far to prevent the 
other side from having an 
opportunity to except. Here 
it may be doubted whether 
the Plaintiff has proceeded 
properly to expunge, though 
he has obtained the order re- 
gularly; for there ought to 
be warrants on the adverse 
party to attend the expung- 
ing, to see that the record is 
altered according to the re- 
port. It is therefore certainly 
necessary to serve these war- 
rants, for they are in fact the 
only notice to the otlier party 
gf which he can avail himself 
in order to except to the re- 
port in time. Until the re- 
port is signed, no exceptions 
can be taken ; and therefore 
it is very material that these 
warrants should be really 
served, for otherwise it would 
be almost impossible for the 
party to take the exceptions 
in the time which by the 
course of the Court he is al- 

Tbe Lord Commissioner 
£yre 'thought the order for 
setting down the exceptions 

was clearly irregular, and 
that no notice was necessary 
to be given of the expung- 
ing ; but the party who wishes 
to except must watch his op- 
portunity, when the report is 
signed. If there is really any 
material injustice done to the 
Defendants by this report of 
the Master, the application 
must be to set aside the order 
for expunging upon the par- 
ticular circumstances ; but 
while the order for expunge 
ing stands, this order fcur 
setting down the exceptions 
miist be irregular. There- 
fore it must be set aside with 


costs. — Mr. Cox*s notes. From 
Lord Colcheiter'B MSS. 

** Their Lordships do order, 
that the said order of the 
27th day of Jufy last be dis- 
charged for irregularity, and 
that the exceptions be struck 
out of the paper; and it is 
further ordered, that the sum 
of 5/. deposited with the fer 
gister on filing the said ex- 
ceptions be returned to the 
Defendants.**— Reg. Lib. B. 
1791, fol.54.S. 

R 2 






the Defendants should be disposed of; and it appearing 
by affidavit that the Master's report had been obtained 
by surprise, on the 7th of November ^ 1818, an order to 
that effect was made. 


in Ohamcerv. June 2l8t, 1792. 


noi refer an 
answer for 
after replica- 
tion, or an 
to speed the 
But he nwy 
refer for scan- 
dal at any 

A motron was made to dis- 
charge, fonr irregularity, an 
order for referring an answer 
for scandal and impertinence. 
The irregularity complained 
of was, that the order had 
been obtained after an order 
to speed the cause, though 
the repKcation was not actu- 
ally iiled. The case of Ken* 
vaorthy v. Allen^ 1 Bro. Cha. 
Rep. 400., was cited to show 
that the Court would make 
such a reference in any stage 
of the cause. 

But the fx)rds Commis- 
sioners said, that after re- 
plication they would not refer 
for impertinence, though they 
would at any time for scan- 
dal; and that the order t« 
speed the cause was tanta- 
mount to a replication filed. 

The order was therefore 
discharged, so far as it re- 
ferred the answer for imper- 
tinence. — From Mr. Cojt's 
notes, Lord Cokhester*B MSS. 

In the Exchequer. March 2d, 1793. 


The Master's 

rraoit on a 
rderence for 
needs no con- 
firmation; and 
the mil is not 

The Plaintiff filed his bill place, to have tlie report con- 
praying an injunction ; the firmed. 
Defendant referred the bill for Per Cur. It wants no con- 
impertinence, but the Plaintiff firmation. 
obtained the report of the He then prayed for an in- 
Master in his favour. j unction. 

Kidd moved in the first Per Cur. It ought to issue* 

(fl) 1 Harrison, Chanc. 190, 



WILLIS V. PARKINSON. July 37, «8. 

THE decree in this case having directed the issuing No ttlMtnitial 
a commission for ascertaining the boundaries of the |^ jg^^^^ ^ |^ 

prebendal lands demised by the Plaintiff to the Defend- ^^f^ on 

, tii^i*im- motion, with- 

ant (a), a motion was now made on behalf or the Flain- out cooicbl 

tiff, that the decree might be extended to copyhold as 

well as freehold lands. 

Mr. BligAf in support of the motion* 

The Lord Chancellor. 

If the motion is not opposed, take the order. One pro<*- 
oeeding is a consequence of the other. A direction to 
ascertain the boundaries of the freehold lands is useless 
without ascertaining the boundaries of the copyhold. 

Mr. Heald^ for the Defendant, opposed the alteration J^fy tt^ 
of the decree. 

(ja) S Mer, 507. aule^ voL i. p. 9. 

The motion to refer for ira- Eyre Chief Baroir, and entitles tb^ 

pertinence is a dilatory of it« Thomson B. The injunction Pl^nttff to 

self; and an injunction might is, till answer or further order, !|^^g^|^' 

have been granted upon which pre-supposes that the answer his 

that, (a) answer is not in. Being now becaa^fiiMU. 

Richards^ for theDefendant, in, you cannot have such an . 

shewed for cause against this order : 
that the answer was actually Order refused, 
in ; and as no injunction had From M.. Le Mesurier% 

issued, none could now issue. note8,LordCofcAe«/tfr8MSS. 

And of that opinion was the 

(a) Contra, Netde v. WetAeton, Mucnaniara i.KinderUff, 1 fVfo/. 
1 Bro. e. C. 574. 1 CiMr, 104. Ex. Prac, J76. 

R 3 Thc^ 









March 17. 


May A. 

An order dis- 
missiDg a bill 
for want of 
obtained after 
an injunction 
had been 
granted re- 
straining tbe 
from proceed- 
ing in an ac- 
tion at law, on 
the Pimntiff's 
undertaking to 
give judgment 
to be dealt 
with as the 
t^ourt should 
direct, and 
not to brin^ 
any writ of 
error; was 

The Lord Chancellor. 

The question is, whether the direction solicited is so 
strictly consequential on the direction already given, that 
the Court can make the alteration without oonsait? I 
am of opinion that it is not. It is a principle, that mi 
motion no alteration can be made in a decree without 
consent, except in matter of mere clerical form; the 
Court cqnnot introduce a substantial addition. 

Motion refused, (a) 


I^HE bill, filed on the 25th of November^ 1817, stated 
indentures of mortgage dated the 20th and 21st of 
December^ 1754, by which WiUiam Brcmie and Sarak 
his wife conveyed to Joseph Biou in fee, a moiety of the 
manor of NetherhaJl, and other estates in the county of 
Suffolk^ for securing the repayment of SOO/. ; and that 
Browne and his wife executed to Joseph Biou a subse- 
quent mortgage of the entirety of some part of the pre- 
mises, for securing the &rther sum of 400/. 

The bill also stated, that before or in the year 1781, 
Setoell Mansell was seised of the equity of redemption of 
the premises, subject to the two mortgages to Biouj 
which were the first charges thereon, and to subsequent 
incumbi*ances ; and being In possession of the rents and 
profits of the premises, by indentures dated the 30th and 
51st of Jidt/f 1781, conveyed them to AbelJenkinSy in 
trust to pay the sums of SOO/. and 400/. with interest at 
the rate of 5 per centum per annum, although interest 
was reserved on one of the mortgages at the rate of 
4 per cent, only ; that Abel Jenkins paid all interest in 

(c) Brackenbury Vj Jiratkcnbury, S Jac, 4^ WM. JSl. 

17 - * arrear 


•rrear to the tiine of his death, the mortgagees not re* ISlBn 
quiriilg pajment of the principal ; and by his will dated 
the 27th oljtmey 1802, devised all bis real estates to the 
Plaintiffi Gkarles James and David Owen^ his executors^, 
and died leaving the Plaintiff Abel Jenkins his heir. 

The bill farther stating that the mortgaged premises 
had become vested in Susannah Biou^ who was entitled ta 
the principal of the mortgage money, and had received 
interest from the Plaintiffs at the rate of 5 per cent. tO; 
Jidy^ 1816; prayed a reconveyance of the mortgaged 
premises, on payment of what was due for principal and> 
interest, and an injunction against entering on the Plam- 
titb* tenants, or giving notices to them, or otherwise pre- 
venting them from paying their rents to the Plaintiffs, 
and against bringing an ejectment. 

On the 5th of December^ 18*1 7, the Plaintiffs moved, ^ 
that upon payment into court by them of 300/. and 
¥X>L^ the principal due on the mortgages, and' 
50L 12s. 9d. for interest to the 20th of that month, 
an injunction might be issued against the Defendant in. 
the terms of the prayer of the bill. — The Lord Chan- 
cdbr directed the motion to stand over until the time 
for answering had expired. 

The Defendant, by her answer, claiming as heiress at 
law and administratrix of Joseph BioUy who died intes- 
tate in 1760, and admitting the first mortgage for 300/., 
denied that Browne and his wife executed a second 
mortgage for 4002. ; stated that in Jidt/j 1 759, George 
Keightkjfy by the direction of Mathems SeweUy mortgaged 
the other moiety of the premises to A. Maseres for 400/. ; 
and in Joitttai^, 1775, that mortgage was purchased by the 
Defendant from KetghtUy, in whom it had become vested. 

The answer further stated, that KeighUey paid the 
interest on the mortgages as the solicitor of SeaseU and 

R 4 steward* 


1618. ^ ' steward of the estates, in which capacities be was sac** 
ceeded bj Abel Jenkinsj deceased, who continued the 
payment of interest till his death in 1802 ; and iroaa diat 
time the Plaintiffs Charles James and Abel Jenkins acted 
as stewards of the estates, and paid the interest ; that 
in 1816 the Defendant having applied to Jenkins for an 
account of the rents of the estates, Jenkins gave notice 
to the Plaintiffs that he intended to pajr the principal of 
her mortgage, and a correspondence ensued, Jenkins 
claiming to be entitled to redeem by virtue of convey- 
ances executed by Sewl Mansel to Jenkins^ father iir 
trust to sell. The cdnveyances, as he alleged, directed 
payment of the purchase money in discharge of incum- 
brances, and reserved the surplus to Mansel ; upon the 
death of Mansel intestate, his father obtained letters 
of administration, and assigned his interest in hb son's 
property to the father of Jenkins ; and in 1783 the 
Mansel &mily claiming the property, Serjeant HillgELve 
an opinion that Seaoel Mansel at his death had only 
an equitable interest in the surplus of the money to be 
raised by sale of the estate, which, as a chattel interest^, 
passed to his administrator. 

The answer stated, that the title of Seaoel Mansel to 
the equity of redemption of the estates had never been 
made out; that the indentures of the year 1781 were 
studiously concealed, and had not been acted on ; and 
s^mitted that the Plaintiffs ought to set out and esta- 
blish their right to redeem the estate^ and that the heirs 
or other representatives of the respective mortgpgor$ 
ought to be parties to the suit ; and insisted on tlie De- 
fendant's right to the possession of the estate, until 
redeenied by some person entitled to redemption. 

The Defendant havhig commenced actions of eject- 
ment' against tlie tenants of the premises, the Plaiiid&' 
motion for an injunction Was renewed. 



The Lord Chancellor. 1818. 

It is extremely clear that a mortgagee may retain pos- 

session of the estate until he is paid 9 and that no one 
has a right to make a tender of the money due, except 
the party entitled to the equity of redemption ; against •^««»«^ ^^^ 
all other persons the estate is the property of the mort- mortgagee, 
gagee. A party coming to redeem a mortgaged estate, "gain^ «M ex* 
must prove, at his own costs, that he is the individual tiesentitMto 
entitled to the equity of redemption. The opinion of ^ ^"'5^ ^^ 
Serjeant HiU, whom I know to have been during many 
years the best lawyer in the kingdom, has little applica- 
tion to the question now before the Court* 

TTie Lord Chancellor. January S7. 

A mortgagee may retain the mortgaged estate against 
every one who cannot show a title to compel redemption. 
The mortgages which the bill seeks to redeem are not 
the mortgages held by the Defendant. It must be 
assumed that the parties making the conveyance in 1 78 1, 
are the parties entitled to the equity of redemption, and 
I doubt whether in 1782 Jenkins could have compelled 
die mortgagees to permit him to redeem, and whether 
his trust is not much more special. The bill and the 
correspondence of the Plaintiffs r^resent the beneficial 
interest to be in different persons. 

I perfectly agree with Seijeant HiWs opinion ; that 
the utmost interest in Sewel Mansel was a pecuniary, and 
not a teal interest. By their correspondence the Plain- 
tiffs erroneously represent the interest to be in him and 
another person. Were a decree now made, ought the 
reconveyance to be absolute, or subject to redemption ? 

On the 17th of March^ 1818, the Lord Chancellor 
ordered, that upon the Plaintiffs* undertaking to give 




1818. judgment in the actions against the tenants to be diah 
with as the Court should think fit, and not to bring any 
writ of error, the Defendant should not proceed with 
them until the farther order of the Court.— -Reg. Lib. A.' 
1817, fol. 6S4. 

On the 11th of November, 1818, the Defendant^ by 
motion of course, obtained an order for dismissing tha 
bill for want of prosecution. •— Reg. Lib. A. 18 18^ 
foL 6. 

1819. On this day the Plainti£& moved to discharge die or* 

Jammy 19. der for dismission. 

- » 

Mr. Hart, and Mr. Bateler, in support of the mo- 
tion, .y 

After the order of March, 1818, for an injunction^, 
the bill could not be dismissed by motion of course. 
That order was decretal, and necessarily retained the 
cause for the purpose of determining how the judgmcpl 
given by the Plainti£& under the direction of the Court 
should be dealt with. By means of that order, the 
Defendant obtained judgment at an earlier period thai% 
that at which it could have been obtained in the ordi-' 
nary course of proceeding at law ; and this Court will not 
allow itself to be deprived by a motion of course, of that ^ 
jurisdiction to control the use to be made of a judgmeill^ 
which was expressly, reserved by the order under which, 
it was given. 

Sir Arthur Piggott, Mr. Wetherdl, and Mr. Wak^fidd^ 
against the motion* 

No excuse has been offered for the Plaindfi' delay^ 
of which no advantage was taken^ until £ve months after* 



the time when, by the course of the Court, the bill 1819* 
might be dismissed without notice. 

By Lord Bacoris order, if the Plaintiff discontinue 
prosecution, after all the Defendants have answered, 
by the space of one whole term, the cause is to be dis- 
missed of course, without any motion, {a) Since the^ 
statute of Amie (&), durected that, on dismission t>f a 
bin ibr want of prosecution, the Plaintiff should pay 
full costs, the Court has indulged the Plaintiff till the 
end of the third term, and that is now become the course 
of the Court in this matter, {c) If during three terms 
the Plaintiff has taken no proceeding in the cause, his 
bin is. su'bject to be dismissed by motion of course with- 
out notice. The authority on which the order is ob- 
tained is the certificate of the six clerk that no proceed- 
ing has taken place. The AUomey^General ▼. Finch, {d) 
Nothing, therefore, which comes not within his cogniz- 
ance is a proceeding; otherwise it would be necessary 
to produce, in addition to his certificate, an affidavit 
negativing the exbtence of interlocutory orders. 

The Lord Chancellor. 

Supposing that by consent an order had been made 
that the biU should not be dismissed, the six clerk would 
have no knowledge of that order. 

Argument against the motion resumed. . 

In such a case the Court would treat the application 
to the six clerk as a firaud. 

The Lord Chancellor. 

The Court would dismiss the bin on production of 
the SIX clerk's certificate ; but would the next day dis- 

ifl) OnUn tfi Chancery^ ed. (c) Pract. Reg, 37S. 
Beames, 11. (d) i Vet. ^ Beames, 568. 

{b) 4 AimCf c. 16. t.85* 



1819. charge the order of dismission, when informed of the 
7' ' " order by consent. 

JaM£8 ^ 


Biou. Argument against the motion resumed. 

In Degtaves v. Lane (a), your Lordship restored the 
old rule, which dispenses with notice of the motion to dis- 
miss. In Naylar v. Taylor {b\ and in Day ▼. Snee {c)f 
it was expressly decided that an injunction constitutes 
no objection to the motion. 

The only objection to a motion of this kind is some 
proceeding within the time limited ; and no act is a pro- 
ceeding which does not advance the cause to a hearing. 
Amendments and exceptions are proceedings, because 
they tend to prepare the record for the judgment of the 
Court. An order for an injunction before decree is 
interlocutory merely, and not decretal ; the injunction 
preserves the property until the decree, but consti- 
tutes no part of the relief to be then given. The Plain- 
tiffs might have dismissed their bill by consent; and 
an omission to proceed during a period which by the 
rules of the Court renders the bill subject to be dis- 
missed, is an implied consent to its dismissal. 

The PlaintifTs have suiTcred no prejudice by the terms 
of the order ; the Defendant might before this time have 
obtained judgment; and the action being commenced 
by special original, no writ of error could be brought. 

The Lord Chancellor. 

The merits of this case are not now in question ; and 
on the present application I must assume that the order 
of Marcky 1818, was properly made, although I ac- 
knowledge my mind b not free from doubt on that point. 

(fl) 15 Ve$. Ml. (c) 3 F«. ^ Bcamesy 170. 

{by 16 Vei. 127. 



The Plaintiff by their bill insist on a right to restrain 1819. 
the Defendant, who claims as mortgagee for two differ- 
ent sumsy one of which passed to her by assignment, 
from taking possession of the mortgaged premises by 
means of her legal right. On the argument of the 
former order, I was of opinion that unless other 
parties were brought before the Court, the Plaindffi had 
not a right to redeem. It appeared to me that the ' 
Defendant as mortgagee was in this situation, that she 
might refuse to convey the mortgaged premises to any 
one who was to become by that conveyance mortgagee 
or assignee of the mortgagee, (because no mortgagee 
can be compelled to place another person in his stead 
at mortgagee,) and might retain possession and refuse 
to Teoonvey^ unless the persons entitled came to demand 
possession and reconveyance. It was never disputed that 
the Defendant is a mere mortgagee. The mortgage and Right of a 
costs are tendered to her; but she refdses to accept ^^^Sou^ 
them, and insists on holding possession against all who uon or the 
cannot show a title to the equity of redemption, (a) . Un- ^i^b«l 


(a) LomaxY. Bird, I Vern, 182. v. Pomfret, cited and approved, 
Bkkley v. Dorrington, and Monk Barnard, 52, 

In Chancery. December 20th9 1793. 
PYM V. BOWREMAN and Otliers ; 



^^•j>fll Upon a rehearing before the Defendant Stoddard had though the 

JSSf"' Lord Lwghborough, the case filed his bill in 1779, claiming ^\^^^^;;„, 

t tide appeared to be, that Bonore^ to be heir at law of the first contradicted. 

°^ man had filed his bill in 1778 mortgagor, and in titled as 

p^ to redeem a mortgage made such to the equity of re- 

1 not by Nicholas Stoddard, Boxore- demption, but afterwards dis- 

''^^^d fffg^*^ ancestor j to Piym; that claimed ; that the Defendant 


less all account against her was waved, she was endUed 
to hold possession till the account had been taken. 



Pym claimed to hold the pre- 
mises discharged of the equity 
of redemption, but that the 
Defendant Pym's ancestor 
hady by an answer filed in 
the Court of Exchequer in 
1772, admitted himself to be a 
mere mortgagee ; that Botore' 
man filed a bill of revivor and 
supplement, and amended it 
in 1789; that Pym in 1790 
filed his bill, as seised in fee 
of the premises, for delivery 
of the title-deeds. 

These causes came on to 
be heard on the 27th Novetn- 
bert 1792 ; and B&osreman in- 
sisted that he had, by very 
full and sufficient evidence, 
proved himself to be heir at 
law of Nicholas Stoddard, 
the mortgagor, unless some 
nearer heir appeared; and 
that it was not suggested in 
the causes, that any such 
nearer heir had appeared, or 
was in existence; and that 
he had also by very sufficient 
evidence proved negatively 
that there could be no such 
nearer heir; and no evidence 
was entered into by the De- 
fendant to disprove Bowrcr 
man's tide as heir. 

The Lords Commissioners 
had thereupon ordered the 
parties to proceed to a trial 

at law upon the following 
' issue : whetherBotoreman was 
the heir at law of tlie said 
Nicholas Stoddard deceased, 
reserving costs, and further 

Against this order, Bontre* 
man presented a petition of 
rehearing, signed by his coun- 
sel, the Attomey-Oenenl 
Scott^ Solicitor-Greneral Mii^ 
ford, MuMatufieldf BxxiMr* 

The reasons alleged in the 
petition for rehearing were : 

That the petitioner did> at 
the hearing of these causca» 
produce good and sufficient 
evidence to prove that the 
petitioner was such heir, 
which was not opposed by 
any evidence given on the 
part of the said John Pym ; 
that it appears bjrthe answer 
of the said John Pym put in to 
the petitioner's bill, that he 
had no right or title whatso- 
ever to the mortgaged pre- 
mises, inasmuch as the only 
right or title pretended by 
him by his said answer there- 
to was derived fl^om Ge&rgs 
Pym deceased, upon suppo- 
sition that tlie said George 
Pym had obtained a release 
of the equity of redemption 
of the mortgaged premises^ 



In Marchj 1818, the Court made the order on which 
•the Phiintiflb on this oocasicm have relief ; and it if ad- 
.mitted that, although that order had not been made, 


and had levied a fine thereof 
in Hilartf Term 1770; where- 
at it appeared by the answer 
of the said George Pym put 
jo to the petitioner's bill in 
the Court of Exchequer^ and 
sworn by the said George P^^ 
in November, 1772, that tb<; 
Mid George Pym admitted 
that .he had then no right, 
title, or interest, in the mort- 
gaged premises, except by 
virtue of the said indenture 
of demise, and by way of 
mortage for 100 years, and 
did not pretend to have ob- 
tained any release of the 
equity of redemption thereof, 
or to have gained in any man- 
ner any freehold interest 
therein ; and submitted to be 
redeemed upon payment of 
|>rincipal, interest, and costs ; 
BO that the said Defendant 
John Pjjfm had no right or 
title to contest the petition- 
er's title as heir at law of the 
said Nicholas Stoddard de- 
ceased, which title was not 
contested by the executors of 
the said George Pym : 

That the eridence of the 
petitioner being tlie heir at 
law of the said Nicholas Stod- 
ddrd^ was such that the Court 
might have decided upon 

such evidence consistently 
with its rules and established 
practice, and none of the 
other parties in these causes 
had alleged himself to be the 
heir at law of the said Nicholas 
Stoddard in opposition to the 
petitioner : 

And it not being even sug- 
gested that any other person, 
not a party, now sets up any 
tide in such character to ^e 
mortgaged premises, or any 
right to redeem the mort- 
gage, the said John Pym who 
is in possession merely in con- 
sequence of the possession 
obtained by the said George 
Pym as a mortgagee for such 
term of 100 years as afore- 
said, had no right to call 
upon the Court to compel 
the petitioner to establish his 
title at law to the equity of 
redemption of the mortgaged 
premises, before the peti- 
tioner shall be at liberty to 
redeem the said mortgaged 
premises ; such a redemption 
by the petitioner not being 
in the least prejudicial to the 
pretensions of any future 
claimant, should any ever 
appear to dispute the peti- 
tioner's title as such heir at 
law as aforesaid : 





a mere injunc- 
tion will not 
prevent dis- 
mission of the 
bill for want of 

y motion of 
course, ap* 

the Defendant could not have moved to dismiss tlie bill 
for want of prosecution until June. The precedents which 
have been cited, and which were established by mysd^ 
I am anxious to follow to the utmost extent to which 
principle will authorise me ; namely, that after an in- 
junction has been obtained, if the Plaintiff takes no step 
duriug three terms, the Defendant may dismiss the bill 
for want of prosecution, by motion of course ; although 
there is an order staying execution, or trial, or even 
sometimes the commencement of an action. In those 

That considering the re- 
spective situations and inte- 
rests of the petitioner and the 
said «/• Pym^ the evidence 
given by the petitioner to 
prove himself the heir at law 
of the said Nicholas Stod- 
dard was amply sufficient; 
and that even upon much less 
proof than he has actually 
given, he ought to have been 
permitted to redeem the mort- 
gaged premises, without the 
trouble and expense of a trial 
at law, and the delay conse- 
quential thereon, more espe- 
cially as the said John Pym 
had not attempted by any 
evidence whatsoever to con- 
tradict the evidence adduced 
by the petitioner, or even 
pretended that any person 
was or claimed to be the heir 
of the said Nicholas Stoddard; 
so that the said John Pym by 
insisting upon an issue to try 
whether the petitioner was 
the heir as aforesaid, could 

only mean to put the peti- 
tioner to considerable ^ex- 
pense, and to delay the peti- 
tioner in obtaining possession 
of the mortgaged premises, 
the rents already received 
from the mortgaged premises 
exceeding by 1000/. and up- 
wards the principal and inte- 
rest due on the said mortgage; 
and the said John Pym being, 
as the petitioner apprehend- 
ed, utterly unable to pay th^ 
petitioner the costs of the 
trial of such issue, and the 
surplus rents due to the peti- 
tioner, and therefore mean- 
ing only to harass the peti- 
tioner, and to compel him to 
enter into some compromise to 
avoid the expense of such trial. 
Lord Loughborough was of 
opinion with the petitioner, 
and accordingly reversed the 
decree of the commissionen, 
and proceeded to decree a 
t-edemption. — FromLord Cot* 
chetter*s MSS. . 

<< His 

<< His Lordship doth order, mortgage in the pleadings 

that the order on hearing mentioned, and to tax the 

of these causes dated the Defendants the executors of 

27th day o( November ^ 1792, George Pym deceased, their 

be reversed and be as follows, costs of that suit; and his 

(that is to say) ; it is ordered Lordship doth declare, that 

Oat the Plaintiff's biU in the the Plaintiff JVUHam BtAore- 

tet-mentioned cause do stand man is entitled to redeem the 

ditmissed. out of this Court said mortgage, and to have a 

with costs to be taxed, &c. ; conveyance made to him of 

and in the last-mentioned the mortgaged premises;'' 

cause his Lordship doth order with directions for taking an 

and decree, that it be referred account of the rents and pro- 

to the said Master to fits. — Reg. Lib. B. 179S, 


cases, on {Production of the six clerk's certificate, or on 1819. 

an assertion to which the Court gives credit that the 

certificate will be made, the bill is dismissed, and of 

course the injunction ends. The question is, whether 

the principle of those cases rules the present ? I add 

ooly, that to what is called courtesy the Court can pay 

no attention; and that whatever may have been the 

(HBCtice of the clerks in court, notice of such a motion 

is not necessary. Forty years' experience authorises me 

to say, that these courtesies occasion more delay than 

any other transaction in the Court 

I agree that on the motion to dismiss the bill, the 
Court looks no farther than the certificate of the six 
derk ; but if any transaction between the parties ren- 
ders that motion inconsistent with justice, the Court 
will that transaction, on an application to dis- 
diarge the order* The certificate, therefore, is not 
ocmdusive on the question whether the order shall 
remain ; and the point to be decided here is, whether 
the principle of those excepted cases in which the Court 


account of what is due for fol. 215—^15. 
principal and interest on the 
Vol. IIL S 



181^. looks beyond .^be certificate, comprehends the present 


It has been said that the Defendant gained no advan* 
tage by the order oi March^ 1818; I think she gained 
much. Without this order she could not have obtained 
a judgment, on which the Plaintiffs could not have 
brought a writ of error, nor could she have moved to 
to dismiss the bill until June ; whereas on the first day 
of the term ^isuing the order, if judgment had not been 
given according to its terms, she might have moved to 
dissolve the injunction ; and an injunction is the object 
6{ the bill. The order amounts to this, that the Plain- 
tiffs, giving judgment, shall have the benefit of all equit- 
able considerations ; and the Defendant, obtaining judg- 
ment, shall not receive the fruits of it until thb Court 
has decided whether she is entitled to them. This Court 
therefore assumes the right of controling the judgment 
at law. 

Principle of 
tho«e aeci« 

Since March, 1818, this case has been placed in cir- 
cumstances quite different from those in which the Court 
commonly acts ; from that time it was competent to the 
Defendant, stating that judgment had not been given 
as ordered, to obtain the dissolution of the injunction* 
Call the order interlocutory or not, it is a rule of Court 
which alters the situation of the parties in respect to 
the right to dismiss the bill for want of prosecution. The 
principle of the cases cited in support of this motion, is 
not applicable here ; that principle is, that a party who 
has obtained an injunction shall not delay the cause 
further than if he had not obtained it; but if the 
order for the injunction affords other advantages, 
OS an undertaking not to bring a writ of error, or 
an early opportunity of applying to the Court, v it 



seems that to such a case the ordinary rule can not 1819. 
be extended, (a) 

The Lord Chancellor stated, that oil reconsideration A&y 4. 
he retained the opinion which he had expressed, that 
the bill could not be ^iffffiigmf on motion without no-^ 
tioe ; and intimatgd that he would consider the terms 
whidi should be imposed on discharging the order of 
Naoember. 1818. 

4 Mcttff 1819. *< His Lordship doth order, that the 
order made in this case, dated the 11th day of Novem^ 
far, 1818, be discharged; and it is ordered, that the 
defendant S. Biou do restore the possession of the pre- 
mises in the pleadings mentioned to the Plaintiff Abel 
Jenkins^ undertaking to deal with such possession as the 
Court shall hereafter order ; and it is ordered, that the 
said Defendant do retain the rents and profits she. has 
received, without prejudice to either side.'' Reg. Lib. 
A. 1819, fol. 1800. (&) 

(a) See in addition to the coses ▼. The South London Waierworkt 
cited. Earl of Warwick v. Duke Company, S Mer. 61. 
of Bedford, 1 Cox, 111. Hannam 

(i) In Chancery. December 17th, 179K 


order The Defendant having put Shuter this day moved, that 
^ m his answer to this bill, the the order to refer the answer. 
gf^ Plmntlff In May, 1791, ob- might be discharged, and that 
se not tamed an order to refer the the bill might be dismissed 
^ . answer for impertinence, but for want of prosecution. 
Mq^ had never taken out any war- Cooke for the Plaintiff con- 
to a rant before the Master, or tended that the Defendant 
?" ^ proceeded under the order. was not entitled either to 
"* ' S 2 ' have 




March 27. 
May 4. 

Owners and 
occupiers of 
houses in 
London^ sub- 
ject to tithe; 
Defendants in 
a suit by the 
ordered to 
permit wit- 
nesses to in- 
spect them 
preparatory to 
on interroga- 
tories, for 
proving their 


rpHE bill, filed in Trinity ierm^ 1809, and amended 
under an order oi February^ 1811, stated, that the 
Plaintifif was, and ever since the month of May^ 1804ff 
had been seised of or entitled unto, and in the pos^ 
session of, the rectory impropriate of Saint Botclph 
voithout AldgaiCj part whereof is situate within the city 
of London or the liberties thereof, and other part in the 
suburbs of the city, and within the county of Middlesex : 
and was then, and ever since the year 1804, had been 
entitled to, and ought to have received, all the tithes, 
rates for tithes, sums and customary payments, or other 
duties, in lieu of tithes, which hod become due and pay-, 


want of prose- 
cution, and the 
needs not pro- 
ceed to obtain 
the Master's 
report in his 

have the order discharged or 
the bill dismissed ; that the 
regular way for the Defend- 
ant to have got rid of the 
order, would have been by 
taking out warrants himself, 
and procuring the Master's 
Report that the answer was 
not impertinent; as in the 
case of eKceptions, where the 
Defendant might proceed 
upon the reference to get 
the answer reported suffi- 
cient; and that the Defend- 
ant was not intitled to have 
the bill dismissed, because 
an answer referred for imper- 
tinence was not considered as 
any answer, and a Defendant 
who had not answered would 
not be intitled to move to dis- 

miss a bill for want of pro- 
secution; and he offered to 
proceed immediately before 
the Master upon the refer- 

But the Lord Chancellor 
said that the Plaintiff had 
abandoned the order by not 
proceeding under it, and he 
discharged the order, and 
would have dismissed the bill» 
but Cooke undertook to speed 
the cause. — From Mr. Cooke^ 
—Lord Colchester's MSS- 

17th December, 1791.— 
'< Upon motion, &c. it wav 
alleged that the Plaintiff hav- 
ing exhibited his bill in this 
Court against the Defendant, 
he put in his answer thereto 
on the SSth day of t/nire, 1790, 



able from the citizens and inhabitants, for the time 
being, of that part of the parish which lies within the 
city of London or the liberties of the same, for their 


as by the six clerks certifi- 
cate appears, after which the 
Plaintiff not having proceed- 
ed further in the cause, the 
Defendant gave notice that 
he should move to dismiss 
the Plaintiff's bill for want of 
prosecution, whereupon the 
Plaintiff applied for and ob- 
tained an order bearing date 
the 31st day of May last, 
whereby it was ordered that 
it should be referred to Mr. 
Pophaniy one, &c. to look into 
the Plaintiff's bill, and the 
Defendant's answer, and cer- 
tify whether the Defendant's 
answer was impertinent or 
not, but the Plaintiff has not 
since proceeded under the 
said order of reference or in 
this cause; it was therefore 
prayed that the said order of 
the 31st day of May last may 

be discharged, and the Plain- 
tiff's bill may stand dismissed 
out of this Court for want of 
prosecution, with costs to be 
taxed, &c. whereupon and 
upon hearing, &c. it is order- 
ed that the said order bear- 
ing date the 3l8t day of May 
last be discharged, and that 
the Plaintiff do go to commis- 
sion this vacation, give rules 
to pass publication in this 
term, and procure the cause 
to be set down for hearing in 
Easter Term next, or in de- 
fault thereof it is ordered that 
the Plaintiff's bill do stand 
dismissed out of this Court 
with costs, for want of prose- 
cution, without farther mo- 
tion ; and it is hereby re* 
ferred to Mr. Pepys^ one, &c. 
to tax the said costs." — Reg. 
Lib. B. 1791. fol. 32. 

In Chancery. January 23d, 1792« 




Bod by 



After the answer in this 
cause had come in, the Plain- 
tifis remained three terms 
without any proceeding, and 
then obtained an order to 
amend their information, and 
having remained some time 

without amending it, the De- 
fendants moved that the order 
to amend might be dischaig- 
ed, and the bill dismissed for 
want of prosecution. The 
PIahitifi& then undertook to 
amend within a limited time, 
3 but 




The East 
India Com- 






The East 
Imdia Cou- 


respective houses, shops, warehouses, cellars, and sta^ 
bles, situate within that part of the parish which lies 
within the city or the liberties thereof: and the bill 
then stated the decree, bearing date the 2Srd day of 
Februaryj 1545, made by Thomas^ then Archbishop of 
CarUerburyi and others therein named, in pursuance of 
the act of the 37th year ot Henry VIII. c. 12. 

The bill further stated, that by virtue of that act and 
decree, the Plaintiff became entitled to receive all 

missed, it is 
•uffident to 
amend by ex- 
another De- 
though imma- 
teriiuto the 
Defendant at 
whose in- 
stance the 
order was 

After sub- 
poena to re- 
join, a bill may 
be (Bsmissed 
for want of 

but not having done it, an 
order was made on the De- 
fendant's application on the 
6th December last, that the 
Plaintifis should amend the 
information before the last 
seal after Michaelmas Term 
or the information be dis- 
missed. The Plaintifis then 
amended the information, 
merely by striking out the 
names of two Defendants, 
and obtained an order to dis- 
miss the information as to 
them with costs. 

Pemberton now moved, for 
the other Defendants, that 
the information might be dis- 
missed; and he contended 
that the Plaintiff had not 

complied with the last order ; 
that they had made no mate- 
rial amendment, none that 
related to the present De- 
fendants, and therefore that 
the information ought to be 

The Plaintifis did not iqp- 
pear, but an affidavit of ser- 
vice of notice of the motion 
on them was read. 

The Lord Chancellor. 

The conduct of the Plain- 
tifis is very vexatious, but yet 
they have literally complied 
with the order, and therefore 
the information cannot now 
be dismissed. Motion re- 
fused. .» From Lord ColcheS'* 
ter's MSS. 

In Chancery. January 16th, 1794. 

Abbott moved to dismiss for 
want of prosecution, after sub- 
poena to rejoin. The regis- 
trar doubted, but 3 Atk. 558. 
being cited for the motion, it 


was ordered by the Lord 
Chancellor. — From Lord Col* 
Chester B MSS. — Reg. Lib. 
B. 1793. fol. 114. 




monies due and payable for and in respect of the tithesi 
oblations, and dues, arising and payable by the inha- 
bitants and occupiers of houses, warehouses, wharfi, 
and quays, within that part of the parish of St. Boidph 
jUdgate^ which is situate in the city of London or the 
liberties thereof at and after the rates expressed and 
directed to be paid in the decree, (that is to say) for 
every ten shillings rent by the year of all houses, shops, 
warehouses, cellars, and stables, within the rectory or 
parish. Is. 4^., and for every 20s. rent by the year of 
all houses, shops, && within such parish, 2s. 9d. ; sub^ 
ject to certain abatements in th^ decree specified. 




The East 
Ikdia Com- 


The bill further stated, that the Defendants had, ever 
since the month of 3£zy, 1804, been, and then were, in 
the possession and occupation of several messiiages or 
dwelling houses, warehouses, cellars, wharfs, quays, edi- 
fices, and buildings^ situate within that part of the parish 
ofSLBoiolph AldgatCi which lies in the city of London 
or the liberties thereof, at and under certain yearly or 
other rents and reservations, or otherwise; and that 
certain yearly or other rents or reservations, in the 
nature of rents, had been or were formerly or thereto- 
fore, or at some times, paid Qr reserved, or made pay- 
able, for or in respect of the houses or warehouses, &c. 
or some or one of them, or of some other houses or 
buildings, which formerly or theretofore were erected 
and stood upon the scite, or upon the same pieces or 
parcds of land or ground, on which the houses, ware- 
houses, &&, then in the possession, holding, or occupa- 
tion of the Defendants, had been since erected and then 
stood, or had been made, and therefore the tithes, or 
yearly payments in the nature of tithes, were during the 
time they were in such occupation and possession, and 
then were, payable by them, for or in respect of the said 
messuages or dwelling houses, warehouses, &c. m man- 

S 4 ner 







India Com* 


ner and after the rate directed by the decreet accordbaf^ 
and in proportion to the rents respectively then paid 
by the Defendants or payments made by them, in tht 
nature or in lieu of rent, during the time last mentioned* 
to the Plaintiff, as the rector or impropriator of die 
parish : and that the sums of money payable for or ill 
respect of the tithes or dues, for or in respect of tfaa 
houses, &c. in the occupation or possession of the Der 
fendants, or any part thereof, had not, since the mootk 
of Mm/j 1804, been paid to the Plaintiff or to any othef 
person, by his order or for his use^ and that there was 
then a considerable sum of money owing to him on thaj^ 
account, from the Defendants. 

The bill, charging that the tithes ware payable, and 
that the amount of the several sums to be paid by the 
Defendants for the tithes, or in the nature thereof, ought 
to be calculated and computed after the rate^ and in the 
manner directed by the decree, according to the present 
pr improved or last known rent or rents, or value of th% 
houses, &c* and other buildings; prayed, that an ai> 
count might be taken of the several sums of money duo 
to the Plainti£^ for the tithes, rates for tithes, sums or 
customary payments, or other duties in lieu of tithes, on 
account of the messuages, &c held and occupied by 
the Defendants, within such part of the rectory oi 
parish, as aforesaid, or the titheable places thereof in 
each year since the month of Mca/f 1804 ; and that th« 
Defendants might pay to the Plaintiff the money which 
should be found due from them on the taking soeh 
account, the Plaintiff waiving all penalties and tof^ 
feitures, &c» 

By their answer, the Defendants admitted, that thef 
had, evar since the year 1804, occupied, and did tlien 
occupji^and were the owners of several stacks of ware- 

26. houses. 


bouseB^ and three dwelliog-houses tor their warehouse^ 
kee{)6ni and servants^ situate in and near Gravel Lanef 
PeUieoat Lane^ Hamm AUey^ and Cutlef^s Sifteif and 
aba certain warehouses then or formerly called Parken'i ^^^^!^ 
Gardens Warehouses^ situate in Haydon Square^ near famt. 
another alley or place also called Harrow AUejf / and 
that they were then, and ever since the year 1804, had 
been the occupiers of certain warehouses called BumbaWs 
WardumseSj situate also in Haydon Square* And they 
stated, that they believed that the whole of the ware* 
booses and dwdling-houses, therein mentioned to be 
situate in or near Gravel Lane^ PeUieoat Lane^ and the 
first mentioned Harrow Alley and Ctdlei^s Street, and a 
small proportion of the warehouses called Parker's Gar^ 
dem Warehouses, aild a part of the warehouses called 
BumbalTs Warehouses, respectively, are in that part of 
the parish of St. Botolph which is within the city, and 
that the residue of the warehouses, called Parker's Gar" 
dens Warehouses^ and BumbalPs Warehouses req)ectivdyf 
are situate in the parish of IVmity, Minories, in the 
connty of Middlesex. And they further stated, that all 
the warehouses and dwelling-houses, before menti<Mied 
lo be situate in and near Gravel Lane, Petticoat Lane^ 
the first-mentioned Harram Alley and Cutler's Street, 
and the warehouses called Parker's Gardens Warehouses, 
were built by the Defendants^ and that they having 
built, and being themsdves the owners of the last-men* 
tioned warehouses and dwelling-houses, they did not 
then, nor ever did hold the same, or any part thereof^ 
under any yearly or other rent, or for any consideration 
in the nature or in lieu of rent, and that no yearly or 
other rent had, at any time, been paid for the said ware- 
houses, dwelling-houses, or ground, though they appre- 
hended and believed that ccfrtain dwdling-house% or 
some edifices or buildings, did formei^y stand upon 



1819. the sattf or upon the same pieces or parcels of land 
* ' - ' ^ or ground, on which the said wardiouses and dwelling- 

A.TNA8T0N 111 ^ti 

9. houses had been since erected, and then stood, and that 

ImdiI^Cw- ^^^^ yearly or other rents or payments in the nature of 
FAMT. rents, were reserved and made payable, for or in respect 
of such dwelling-houses, or other edifices and buildings, 
or the ground on which^ the same stood, but that the 
Defendants were unable to set forth what such rents or 
payments were, or whether they were paid or not : and 
that all such part of the warehouses, called BumbalTs 
Warehouses^ as are situate within that part of the rectory 
or parish of St. Botolphy which is within the city of LoiP* 
douj or the liberties thereof was then held by the De- 
fendants, under a lease for a term of years then unex- 
pired, at the yearly rent of six pounds, payable and 
regularly paid to the Honourable John Olmius. 
I ..... 

The cause, was heard at the Rolls, on the 2d of March^ 
1818, when his Honor declared. that the Plaindfi* was 
entitled to tithes, after the rate of 25. 9d* in the pound, 
upon the annual value of all the messuages, warehouses, 
and other premises, held or occupied by the Defendants 
^within the parish of St. Botdph without Aldgate^ in the 
cit|r of London^ except the premises called BumbalTs 
Warehouses; and ordered a reference to the Master 
to ascertain the value of the premises except as afore- 
said, and to take an account of what was due to the 
Pliundfi* for tithes, at the rate aforesaid: and it was 
ordered, that the Master should also take an account 
of what, was due to the Plaintiff for tithes of the pre- 
mises called BumbalCs Warehouses^ . at the like rate of 
2s.9d.m the pound, upon the reserved rent of 6L per 
anmaoy without prejudice to the question, whether the 
Plaintiff was entitled to 25. 9d.. in the pound, on the 
value of the last-mentioned premises. 




in Naoember^ I8I89 interrogatoriesy on the behalf of 
the Plaintifl^ were carried into the office of the Master, 
for the examination of the Plaintiff's witnesses; and 
thuee sorveyors, James Bmion^ William Mountague, and 
Joseph Kajf^ were examined on his behalf. 

In December following, at the instance of the De- 
fendants, publication was enlarged for three weeks from 
the 9th of that month, and within that period the De- 
fendants examined four witnesses. The time for passing 
publication elapsed ; but the depositions not having been 
published, publication was again enlarged, at the in* 
stance of the Plaintiff. 

On the sixth of February^ 1819, the Plaintiff having 
moved, before the Vice-Chancellor, that Joseph Sills 
and William Smith might be at liberty to inspect the 
several warehouses and premises, mentioned in the 
pleadings, in the occupation of the Defendants, situate 
in Graoel Lane^ PeUicoat Zjane^ Harrow JUey^ ddlei^s 
Street, and Parkef^s Gardens, respectively, preparatory 
to their bdng examined as witnesses on the part of the 
Pbdntiff ; the Vice-Chancellor ordered a reference to the 
Master to inquire and state to the Court, whether an in- 
spection of the several warehouses and premises, men- 
tioned in the pleadings to be in the occupation of the 
Defendants in Gravel Lane, Petticoat Lane, Harrow 
AUey, Cutler^ s Street, and Parket^s Gardens, respectively, 
by the said Joseph Sills and William Smith, preparatory 
to their being examined as witnesses, upon interrogato- 
ries carried into the Master's office by the Plaintiff, in 
pursuance of the decree, was necessary for the Master 
to form his conclusion upon the matters referred to 




The East 
India CoMr 






The East 
India 'CoM- 



From this order the Defeodants aiq)ealed to the Lord 

Pending the appeal, by his report^ dated the 24th day 
of March^ 1819, the Master certified that he was of opi« 
nion, that an inspection of the several warehouses and 
premises, mentioned in the order of reference, by the 
said Joseph Sills and Robert Smithy preparatory to their 
being examined as witnesses, upon the interrogatories 
^dubited by the Plaintiff before him for the examin* 
ation of witnesses, in respect of the matters referred to 
him by the decree, was necessary for him to form a 
satisfitctory conclusion upon the matters so referred to 

On the 7th of Aprils 1819, the Vice-Chancellor con* 
firmed the Master's report, and ordered that the De- 
fendants should permit Joseph Sills and Robert Smith 
to inspect the several warehouses and premises in the 
occupation of the Defendants, in Gravel Lane^ Petti' 
coat Lane J Harrow AUey^ Cutlet's Street, and Parker's 
Gardens^ respectively, preparatory to their being ex- 
amined as witnesses upon interrogatories carried into the 
Master's office by the Plaintiff. — Reg. Lib. A. 1818. 
foL 822. 

From this order also the Defendants appealed to the 
Liord Chancellor. 

3fareAs7. The Solicitor General^ Sir Arthur Piggott^ and 
Mr. Wyatty in support of the appeal* 

The order for inspection is unprecedented, unautho- 
rized by practice or principle. The Court has no juris-^ 
diction to compel the owners of houses to open them for 



the admission of adverse witnesses, undertaking to fot- 1819* 

nish evidence asainst them on the question of their ^ ^ "^ ' 

value. Parties may be themselves examined on inter* «. 

rogatories; but their freehold is protected from the ^^^n'* 
entry of strangers. The order can be supported only pamy* 
on the principle that the Court is competent to com* 
pel the Easi India Company to open their doors ; every 
house subject to the same claim of tithe must be subject 
to the same inspection. If the parties acted on such 
an order, and the Easi India Company brought an 
action for a trespass, how could the Defendants protect 
themselves by an order of this Court? What prece- 
dent is there of such a defence? The instances in 
which the legislature has, for the purposes of revenue, 
compelled inspection of houses, afford no proof of a 
like power in this Court. 

If the proprietor of a mine, in working underground, 
has worked into the mine of his neighbour, and taken 
ore not belonging to him, inspection may be ordered ; 
but the Court then acts at the instance of the owner 
of the mine invaded and of the ore taken. A 
tithe-owner is undoubtedly entitied to enter on the 
land subject to tithe for the purpose of seeing the tithe 
set out, and carrying it away, but the analogy of that 
right cannot authorize the Plaintiff in deputing stran- 
gers to entbr and inspect the Defendants' freehold. On 
the principle of this order every tithe-owner may file a 
bill, not according to the established practice for dis- 
covery, but for inspection. 

The right of inspection cannot be omsequent on the 
title created by the act of parliament; on such a suppo- 
sition it would be needless to insert in any revenue law 
a clause authorising inspection ; the right would follow 



1819. the imposition of a tax: but the l^blature has never 

^^ sanctioned that reasoning; or supposed that a right of 

V. entry into dwelling-houses could be assumed from mere 

IkoiI Co*m- constructive inference^ without express enactment. 


The practice of view in a trilal at law is no authority 
for this order ; the view is made by the jury, and undor 
the authority of a statute, {a) 

The order is unnecessazy; the value of the b «nd tny 
may be ascertained by external view. The Easi InMa 
Company resist the claim of compulsory inspection; but 
in fact their warehouses are frequently opened for public 
sales,; and during the last long vacation inspection W86 

Mr. WethereUj and Mr. Palmer^ in support of the 

Upon principle, thb Court possesses jurisdiction to 
pronounce an order which is necessary for administer- 
ing the justice of the case. Every tithe-owner is entided 
to enter on the grounds of the occupier, for ascertaining 
that the tithe b properly set out. Suppose that the agent 
of a merchant employed to purchase jewels, at a oonunis- 
sion of 5 per cenUy consigns to his employer diamonds 
which he represents to be worth 150,000/.; while the 
merchant values them at 70,000/., and refuses to pay 
commission on the larger sum; if the agent files a bill 
for an account of his commission, will not this Court 
compel production and inspection of the jewels, in order 
to enable the Master to ascertain their value ? Upon 
the same principle pictures may be inspected. Tlie 

(a) Stt pott, ^ 2^2, n, 



principte is, that wherever m respect of the proper^ 1819« 
of one individual, a right accrues to another which kymaitoii 
cannot be measured without inspection of the subject v. 

of property, the Court is competent to oompd the pro- ^^ ^^ 
prietor to permit that inspection, as indispensable to vamt. 
the purposes of justice. Such inspection is no inva- 
sion of the Jus proprietaHSf but a legal consequence 
of the obligation affecting the properQr and the pro« 
prietor. Suppo^ng an agent employed to value timber 
at a commission, and the timber felled, and a dispute 
arisen on what amount commission is to be computed ; 
ipottld the Court permit the owner of the timber to re- 
Qiove it, till he had afforded an opportunity of inspection 
for ascertaining its value ? 

The Court has assumed jurisdiction to direct the spe- 
cific-execution of a work in which tlie public are inte- 
rested; as in the Birmingham canal, case, the parties 
were directed to raise a bank to a given height, (a) If 
a doubt arose whether that order had been obeyed, 
would the Court be incompetent to compel inspection ? 
On a dispute between landlord and tenant, whether 
waste had been committed, or repairs performed, ques- 
tions on the &ct or the extent of waste or repair, might 
render necessary inspection of the house in the posses- 
sion of the tenant. Why is a house or a warehouse 
more privileged from inspection than jewels, paintings, 
or mines? 

The statute of 4 Ann, c. 16. s. 8., for securing in all 
cases where it may be requisite, a view by a competent 

(a) In the Birmingham Canal tory, are in effect mandatory^ may 

Company ^,Lloydf\^Vei.5\S.}Xi^ bo found in Robinson v. Lord 

injunction was refused ; but in- Byron, I Bro. C. C. 588. Lane v. 

stances of the injunctions alluded Kewdigate^ 10 Vcm, 199. 
to, which though in form prohibi- 



1819. part of the juron, was rendered necessary by the mat 
of that jurisdictioa inpersonatttj in courts of law, wbi<^ 
V. "^ is the characteristic of this Court; and by means of 
bfofA^M-i "^^^^ **• cMrders are enfiarced. 



JTie Lord Chancellor. 

Whether be- Has the Court in any other case directed a prelinun 
^eC^^ nary incjuiry before the Master, whether inspection is 
would direct necessary ? It may be very difficult for the Master to 
inquiry"by the ^spose of such a reference. It is, indeed, a protection 
Master, on against needless inspection ; but supposing several wit^ 
of intpection, nesses who had made inspection, to have beai examined^ 
^^'^^^* how can the Master, if publication has not passed^: 

know whether inspection by other witnesses is or is not 


In a case not precisely the same in specie with others, 
the Court is cautious of introducing into its practice^ 
what is an entire novelty, and may be productive of 
great expense, namely a reference to the Master to in- 
quire whether inspection is necessary.. On an applica^ 
tion for a commission to examine witnesses in foreign: 
countries, the Master receives testimony, and judges of 
the necessiQr of issuing a commission ; but is there any- 
precedent in the analogous cases of mines, &c. of direct 
ing a reference to the Master on the necessity of inspect 
ti<m? If the Master reported inspection unnecessaryji^ 
the parties might except to his report, and the question 
would return to the Court. 

Recollecting that the reference to the Master was^ 
in this instance^ directed after decree, I think it right. 

Argument in support of the orders resumed. 



The daily practice of the Court, its whole jurisdiction 1819. 

in issuing injunctions, and writs of ne exeat regno, im- kyna«w 

poses more important restraints on die civil rights of the «. 

subject, than an order of inspection. The authority of i^oi^ q^h. 

this Court, zealously disputed in the time of Lord EUe^ '^nt* 
meref has been established more than a century and a 
half, (a) 

Though novel in circumstances, the case is not novel 
in principle. The purpose of inspection is to inform 
the conscience of the Court, and witnesses appointed by 
it are entitled to be consid^^ as its officers. In a 
former suit in the Exchequer between the same partiest 
the surveyors examined on opposite sides, in their 
estimate of value, differed, and to the amount of 200(tf. 
per annum. 

At the close of the argument, the following observa- 
tions were made by 

The Lord Chancellor. 

On the question what this Court will do, if it has juris- 
diction, I entertain no doubt ; the order must compel 
tbeJBos^ India Company to permit inspection; and if 
such an order were made, the Court, I apprehend, needs 
not trouble itself to consider the consequences of an ac- 
tion at law, because no action would be allowed. 

For reasons which I may mention hereafter, I am of 
opinion that the statutes relative to revenue have not 
much application to this question ; the real question is 
this; whetiier, when the legislature has declared, by this 
act of S7 Henry WW. c. 12., that the owners or occu- 
piers shall pay 2$. 9d, on the rent, if they receive rent, 

(a) Vide ante, vol.ii. p. 82. q. 

Vol. UI. T aad 


' ISld. and if hot, on the value, and shall consider what urould 

Lr ^ ' be the rent as the value, it has not as it were made a con- 
Kynastom '^ 

v. tract between the parties, that that act of parliament 

ImjmI Com- ^^^^ "^ carried into execution between them ; and whe- 
YANT. ther this Cdurt has jurisdiction to see that it is carried 
into execution as a private contract ? If there had been a 
private contract betw^n the rector and the parishioners, 
that for avoiding litigation, the rector should take one- 
tenth of the rent, if the land were let, and if not let, one- 
tenth of the value, the question would have arisen, whe- 
ther the Court would compel the land-owner to permit 
witnesses to enter on the lands for the purpose of inform- 
ing the conscience of the Court, what was its value? 

The right to view diamonds or trees in the cases sug- 
gested, is an implied right ; and so is the right to enter 
the mine of another; the foundation is that necessity 
requires that entry; there is certainly fraud, but the 
ground is necessity. 

The cases of view are not analogous ; the view is made 
by die jury ; and that practice existed, I believe, at comtnon 
law {a\ and was not introduced but regulated by statiMd; 
but is no authority for an order to permit inspection by 
third persons for the purpose of giving evidence against 
the proprietor. No precedent is produced of an oirdcr 
upon a party, to permit inspection for the purpose of 
giving evidence ; and the question is, whether the Court 
ivill make such an order in every ca^e in which collateral 
evidence is less isatisfactory than inspection ? 

(a) A view by the jury ia cer- terim terrain illam videant, Gltm" 

tain actions, was a practice of the vUlc^ l.xilL c.l4. Bracion,Lvr. 

common law. The writ direcUng c. 19. Fleta^ L if. c. 9., and maby 

the sheriff to summon recognitors other passages. On the right <^ 

for trying an assize of mart d^an- view, as at present exercised, see 

cutor, contained a clause, et i»- 1 Burr. 25i. et teq» 



7%e Lord Chancellor. 1819. 

He question is, whether the Vice Chancellor was KrvAvtmi 
tight in taking a step which leads to giving liberty, if ,-. *! 
the Master should think it necessary, to the Plaintiff to Ikoia Con- 
appoint persons to examine the warehouses. On the ^^^ * 
Master^s report the propriety of the order cannot be April 6. 
questioned. It may be right that the terms of the order 
should be altered, directing not that witnesses shall be 
at liberty, but that the East India Company shall give 
them liberty, to inspect ; and then comes the question 
whether this Court has authority to make an order on 
the Defendant to give such libert|r ? * 

I have found no case in point, but on principle I 
think that the Court has authority. It has been ad* 
mitted on all sides, that where houses and warehouses 
in Ijandon have never been let, tithes are to be paid 
according to the rent which they are worth to be let at; 
some of the old cases say that there is no authority in 
the statute for charging those houses at all, but it was 
admitted at the bar that the point is now decided ; and 
I must take it that if a person has property of the 
various descriptions enumerated not let, the dthe-owner, 
whedier lay or ecclesiastical, is entitled to 25. 9cL in the 
pound, not on the rent, for there is none, but on the 
value ; that is, the value at which it might be let 

Under that act this Court has undoubted jurisdiction 
to entertain the suit ; that point, though formerly ques- 
tioned (a), is now settled by many decisions, (b) Having 

(a) The doubt was founded on a (b) K^/naston v. MiUer, 3 GwiU, 

coDstnictionofthedecreey(s.l9.) 903. t Dick, 773. Canom of SL 

inoorponited into the statute Pamtt y. Crickett^ 3 Vttjmt. 565. 

37H.8. C.1S.9 asconfierringexdu- Warden, 4rc.qfSi.PmittY,Morrit, 

shrejurisdiction on the Mayor of 9 Fet, ISS. AtUrobut v. The Eatt 

T 2 jurisdiction, 






The East 
India Com- 


Inttancet of 
order to per- 
mit inipectiony 

and entr}\ 

jurisdiction, the Court must in course direct an account 
of tithes, by directing an account of what is the value of 
the premises to be let; and the question is, whether 
in such a 'Case, the Court must not have the means of 
ascertaining^ by the inspection of witnesses, the nature of 
the .premises, in order to ascertain th^ir value ; and whe- 
ther the law meant to leave it thus, that the Defendants 
were to state in their answer their opinion, and to send 
their own surveyor to give his opinion of the value, but 
on the other hand, the Plaintiff was to be in such cir- 
cumstances that he could examine no witnesses who 
knew with precision the value of the premises? It is 
obvious that the capacity of warehouses of equal external 
dimensions, for holding goods, might be greater or less, 
and that the rent would be higher or lower, according 
to the capacity and accommodation of a warehouse. It 
h admitted that^where a man Jias a right to receive a 
certain sum in the pound on the value of trees, the 
,Court has ordered inspection of the trees; so in the 
case of a commission on diamonds, inspection would be 
ordered of the diamonds. I remember a case, where on 
a suggestion that a machine used by the Defendant 
was an infringement of a patent, the Court ordered the 
Defendant to allow an entry into his premises for the 
purpose of ascertaining by inspection whether the ma- 
chine was an infringement, {a) So in the instance of 
partition of a house, the tenant having a right to the 
exclusive possession of it during a term, on a bill for 
partition the Court would order an entry, for the pur- 
.pose of determining in what manner the house cotlld be 
divided, or what must be paid for owelty of partition. 

India Company^ 13 Vet, 9., iDow, Term, IS 16,8uch an orderappean 

'464. Wardeuj 4^. of St. Pautt v. to have been made, (Mr. Meri- 

KeUle, 8 Fet. 4r Beam. 1. vale's MSS.) but no entry of it 

(a) In Brown v. Moore^ JtUary occurs in the Registrar's Book. 




But it is said that in these cases the parties had an 
interest in the property, or an interest under a contract; 
I say that this parliamentary contract is on the same 
ground) because every person claiming under it has an. 
interest in the premises ; and if without this proceeding 
the Court must miscarry, and cannot attain the justice 
of the case without inspection, my opinion is, that on 
principle, it has authority to order inspection, taking 
care to impose as little inconvenience as possible, on 
those on whom the order is made. 


Ktmastok. • 

The East 
In»ia Cbii* 

Cases relative to the production of deeds and papers, 
are not applicable, because there is a particular right to 
call for the production of those deeds; but on these 
general principles the Court must make the order, {a) 

May 4. — << His Lordship doth order that the said: 
orders dated respectively the 6 th day of February^ 1819, 
and the 7th Aayoi Aprils 18 J9, be affirmed." — Reg. 
Lib. A. 1818. fol. 944.(6) 

(a) Sec Earl of MaccUtfield v. Davu^ 3 Vet. 4* Beam, 10. 







•nd their 

(b) Mich. 10 Geo. — In the Exchequer^ 
CITY of LONDON v. THOMSON, et h con. 

The original bill in this 
case was brought for some 
duties claimed by prescrip- 
tion on the exportation of 
com. The Defendant denied 
the right; and now moved for 
an order to inspect the city 
books and their bye-laws con- 
cerning this duty, and parti- 


cularly entries in the cocket 
office. . 

It was objected that the mo- 
tion is irregular, for that though 
It is allowed between private 
persons and the South Sea Com" 
pany, yet it ought not here, 
for that would be to make the 
city produce evidence against 
3 them- 




Fthruaiy 15. 

The farther 
answer of a 
being sworn at 
the house of a 
Master, and 
filed in the six 
clerk's office, 
on the evening 
of the day on 
which the 
Master had 
reported a 
former answer 
insufficient, an 
order obtain- 
ed at the sit- 
ting of the 
Court on the 
next morning 
for an injunc- 
tion, is irre- 
gular; secut, if 
tne answer had 
not been filed 
on the day on 
which it was 


^HE Master having, on the 4th of August^ ISIT^ re- 
ported the Defendant's answer insu£Scient, on 
that day, the Defendant at the house of the Master 
swore to his farther answer, which, on the evening 
of the same day, was taken by the agent of the six 
derk, who attended at the Master's house for that pur- 
pose, and filed, by being deposited in th^ usual manner, 
in the study of the six clerk. At the sitting of the 
Court on the 5th of August^ the Plaintiff obtained an 
order for the common injunction on the Master's report 
of the insufficiency of the first answer; and that order 
was drawn up and an injunction issued, although the 
Defendant's solicitor, on the 6th of August informed the 
solicitor of the Plaintiff, that the &rther answer had 
been filed before the order was obtuned. 


A motion was made on behalf of the Plaintiff to di»« 
charge the order of the 5th of August for irregularity* 


themselves ; and the city here 
are in nature of a private per- 
son. Besides no particular 
bye-law, &c. is specified ; so 
that the search would be infi- 

In the cases between 
lord and tenant of a manor, 
where the tenant bbjs the 
land 18 not part of the 
manor, he shall not be inti- 
tled to inspect the Court 
Rolls, for he has barred him- 
self by denying the land to be 
Within the manor. 

Chief Baron, There is 
nothing extraordinary in this 
motion. In the case of a 
lord of a manor and his 
tenants it is constantly allow- 
ed, and the corporation being 
concerned in interest makes 
no difierence, any more tiian 
where the lord of a manor is 
concerned in interest, and the 
dispute is with a tenant. Il 
is always allowed. 

Cur. of the same opi- 
nion. Rule accordingly.-— 
Mr. Coxe's MSS. 




The £icts stated appeared by the six derk's certificate, IN 8* 
and the affidavits of the Defendant's solicitor, and one Domwobth, 

of the sworn clerks in the six clerk's ofiice. 



In the ExcHEQUXR. Ma^ 2l8t, 1791. 






Coole moved that the De- 
fendant should not be com- 
pelled to produce all the 
bpoka of account and papers, 
belonging to his late father, 
before the deputy remem- 
bianoer » pursuant to an order 
im this Courty he having offisr- 
ed and being ready to pro- 
duce them to the PlaintitiTs 
solicitor^ or any agent of his 

He had an affidavit of the 
Defendant, that he had pro- 
daced all such books and 
papers, as were here in his 
custody or power, and that 
as to those in Dublin^ they 
wore of consequence to the 
business carried on there. 

Scottf Solicitor General 
coaira^ — <^jected that the 
order in this case was made 
upon consent, and so that the 
Defendant was not now at 
liberty to move for any alter- 
ation in it. 

E^Cf Chief Baron, said 
jtfaat he remembered there 
was. a great deal of discus- 
sion at the time, and he 
rather thought that he him- 


self diirected what the order 
should be; but that it was 
understood that when the 
decree came to be enforced, 
the parties should be beard 
as to any point that should 

He thought thai what 
ought to be done was, that 
the Defendant should deliver 
a schedule iq>on oath of 'all 
the papers which are in 
DubUth and that the Plain- 
tifiP should have copies of all 
such as he pleased. Hts 
only doubt was at whose ex- 
pense this should be done, 
as it was for the Defendant's 
acconunodation ; but it was 
uncertain whether. the Plain- 
tifiP would want any copies. 

Cooke said there are large 
chests of papers, your Lord- 
ships would not expect that 
we should examine them all 
in order to schedule them. 

Ei^re, Chief Baron. It is 
no more than you must have 
done if the papers had been 
here. You must do it. 
Ordered accordingly. From 
A/. Le Mesuriertt notes. 
4 In 



1818.' Mr. Bell, and Mr. Wingjeldf in support of the mo- 




Sir Samuel Eomilli/, and Mr. Hati, against the mo- 


In the Exchequer. June 12th, 1793. 

intitled to the 
production of 
iiiapi» rentals, 
cession of and 
belonging to 
* mnty which 
elucidate the 
Tight of the 

^Mo^r moved that the De- 
fendant might produce and 
leave in the hands of his 
clerk in court for the usual 
purposes, certain maps, ter- 
riers, rentals, plans, and par- 
ticulars mentioned in the no- 
tice, and admitted by the 
Defendant by his answer to 
be in his custody. He waived 
so much of his notice of mo- 
tion as respected copies of 
public instruments in the De- 
fendant's custody. 

The Plaintiff had tiled his 
bill as vicar of Hixton, and 
intitled as such tt) glebe by 
endowment, stating that the 
Defendant was in possession 
of some of the glebe; and that 
by confusion of boundaries 
the Plaintiff was unable to 
distrain, drc. and praying a 

The Defendant admitted 
the title of the vicar to the 
glebei and his own possession 

of certain parcels of the glebe, 
which he conceived to be 
situated in such and sucli^ 
places as appeared by a map, 
rental, or particular of his 
estate in Hixtouy and also by 
a sketch or plan. 

Abbott stated theprinciple, 
that equity will give any party 
a discovery from the adverse 
party of all matters useful to 
the prosecution of his suit, or 
to his defence, Mitf. 154. 
&c. And Bowman v. Lygon^ 
MSS. Exchequer, 1792; At- 
torney General v. Corporation 
of Pool, 2d seal before Afi- 
chaelmas Term, 1790, which 
was as follows : an inform* 
ation at the relation of per- 
sons claiming a right to elect 
a curate, and charging the 
Defendants to have papers in 
their hands respecting that 
right; Motion for Plaintiff 
was, that the Defendants 
might leave in the hands of 

{a) 1 Amir. 250. 





The Lord Chancellor. 1818. 

When an answer is sworn in town, the parties in the i>ucxwoeth 
usual course swear to it at the public office of the Mas- 
ters, and the confidential person in the office carries the 
answer to the six clerk's office ; if the public office of 
the Masters is closed, the parties go to a Master*s house, 
and swear to the answer there ; and the Master keeps^ 
the answer, and delivers it himself to the six clerk. If 
the parties, not choosing to attend at the public office. 

their clerk in Courts the 
papers admitted by them in 
their answer to be in their 
possession; and ordered ac- 
cordingly, though the papers 
were corporation deeds. 

Burton and Alexander ^ con- 
trOf insisted that a Plaintiff 
could not look into a De- 
fendant's title before hearing, 
and cited 2 P. W. 410. Sir 
James Davers*B case ; and that 
the Plaintiff had no right at 
all events to look into the 
whole rental of the Defend- 
ant, and none to have copies 
of public instruments. * 

The Court said the case 
in Peere WiUiams was a 
motion to look into evi- 
dence in the cause before 
hearing, and was a different 
motion; that this was of 
course; That as to copies 
of public instruments, cer- 
tainly the Plaintiff could 
not have a production of 
them from the Defendant; 
That as to the maps and 

rentals, the Plaintiff had a 
right to see the whole, ac- 
cording to the description 
given by the Defendant in 
his own answer, and perhaps 
the chief assistance might 
arise from seeing the rest of 
the plan besides what was 
pointed out by the answer. 

Also Thomson B. added, 
that this discovery might be 
useful in two ways ; Ist, if the 
Plaintiff on inspection wa» 
satisfied, he might come to 
the Court for delivery of pos- 
session, even without a com- 
mission; or 2dly, upon the 
commission this previous as- 
sistance would better enable 
the Plaintiff to supply and 
conduct his evidence before 
the commissioners. 

The order was for an in- 
spection of these maps, &c. 
in the hands of Defendant's 
solicitor, with liberty to take 
copies of the whole. — Lord 
Cokhester's MSS. 





1818« wait till that is closed, go to the Master's house, and (he 
-^^^ ^ answer is brouebt to the six clerk's oflSce the next 
momingi the answer cannot be considered as filed on 
the day on which it is sworn at the Master's house. 

Here the agent of the six clerk attended with the 
parties at the Master's house, and the answer was filed 
on the same day on which it was swcnrn. The order for 
an injunction must be discharged* 

The order of the 5th of August^ 18 1 7, was discharged, 
and the injunction set aside with costs. — Reg. Lib. 
A. 1817. foL 1297. 



Fairway 18. 

July 14. 

A testator 
having be- 
queathed an- 
nuities issuing 
out of a lease- 
hold estate, to 
some annuit- 
«ants for life, 
to some during 
the continu- 
ance of the 
fund, and to 
oUiers indefi- 
nitely, with a 
general provi- 
sion for an in- 
crease or dimi- 
nution of the 
annuities, in 
proportion to 
the increased 
or diminished 
income of the 
estate; and a 
particular pro- 
vision that, on 
the death of 


11 Y his will dated the 30th of Aprils 1769, Thoms^ 
BeUs bequeathed a leasehold tenement in HoxUm 
Town^ to his wife Janej for so many yeara of the. 
term which he had therein unexpired at the time 
of his decease as she should live, and after her de- 
cease, to his son John Betts^ his executors, &c. for 
the remainder of the term unexpired at the death 
of his wife, provided he should leave any law&l issue 
at his death ; but if his said son should die without 
issue, the testator bequeathed the same to his daughter 
Jane^ her executors, &c. for the remainder of the teria 
unexpired at the death of his son without issue, pro- 
vided she should leave any lawful issue at her death ; 
but in case she should die without issue, the testates 
bequeathed the same to his daughter Elizabeth^ in like 
manner ; and in case she should die without issue, then 
to John Rogers for all the residue of the term. The 



testator bequeathed all bis leas^old estates in HoxUm 1618. 
Market and Old Street Boadj to his two daughters^ 
to be equally divided between tJbeiBt share and share 
alike; but if cithes shovU die witboHt issue^ to the sup> 

yvua\ and if both died without issu^ to his son. JoAii.. some of the 

annuitants for 
life, their por- 

After the decease of the testator*, and of his widow,, tiom should 

_,_...._ .,, n he paid to the 

JokH JBettSf nLJSprUf ITSS^ assigned by way of mort- mrviyors; the 

gage all his interest in the premises ia* HoMon Town, ^""^^^^ 

to FtancU Carter the elder, who had married the testa- nitely are pay- 

tor'a daughter Jane / he entered and continued in pos- ^e^oonS^ 

session during the remainder of the life of John Betts^ <^>^^ of the 

who died in 1 785 intestate and without issue, and with- amount of 

out having redeemed the premises. On his death, P"^^^^*'?^ 
Carter the elder and Jane his wife, entered into of annuitants 

the possession or receipt ef the rente <^ one moiely, and ^J^-°?L 
on the death of MlizabetA Betts unmarried, of the other particular pro- 
moiety* of the premises in Hartan Market and Old S^to S?«£ 
Street Boad^ vivors, but 

Jime Carter afterwards died, leaving Francis Carter 
tk^ eldtf , her husband, and Francis Carter the younger, 
aad Jame Carter^ her only children. Francis Carter the 
elder obtained letters of administration of her personal 
estate, ttad continued in the receipt of the rents of all 
the jMremises until his decease. By his will dated the 
38th €£ Aprils 1798, he gave to his son Francis Carter^ 
and B* Waters^ and J. B. Tuckj all his estate and effects 
of eveiy kind, both leasehold and copyhold, in trust, 
after payment of his debts and funeral and testamentary 
expenses, to lay out the surplus at interest, and out of 
the interest and the rents and profits of his leasehold 
and oc^ybold estates, to pay to his son Francis CarteTf. 
his executors, &c. the yearly sum of 20/., so long as the 
rents and profits of his estate should produce annually 
the sum of 175/., and so in proportion with the other 


forms iMurt of 
the residue. 


1818.' devisees, according to the annual amount of the estate f*^ 
and he also directed his trustees, out of the rents ^ 
and profits aforesaid, to-pay to his daughter Jane Carter' 
the yearly sum of SO/, quarterly during her life; and* 
to* payinto the hands of Mary Hack otherwbe Carter^' 
the yearly sum of 1 10/., until her son W. F. Hach^ other^ 
wise Carter^ should attain 21, in case he should so long 
live, and after he should have attained that age, to pay* 
to Mary Hack the yearly sum of 90/. only, until her 
daughter Louisa should attain 21, if she should so long 
live, and inmiediately after that event, to pay to Mary 
Hack the yearly sum of 70/. only, until her daughter* 
ilfana should attain 21 ; and immediately after that event 
to pay to ilfa;^ Haek the yearly sum of 50/. during her* 
life; and as soon as W. F, Hack, otherwise Cdrier^ 
attained 21, the trustees were to pay to him 20/. yearly, 
with like directions for the payment of an' annual sum' 
of 20/. each to Louisa and Maria Hacky for their sepft-^ 
rate use; and the testator directed his trustees to pay* 
to his sister Ann Thompson^ the yearly sum of 15/. during 
her life; and he declared that if the interest, rents, &c« 
of his estate and e£Pects should not be sufficient topay^ 
the several yearly sums thereby given, every one of \m> 
devisees, except ilfart/ Hack^ should abate proportion-^ 
ately out of their several sums according to such defi-' 
ciency ; and if the same should produce more than sa£- 
ficient to pay the annual sums, they should be increased 
proportionately ; and that in case of the death of any of 
his children, Francis Carter, Jane Carter , W. F. Hack,' 
Louisa Hack J and Maria Hack, under 21, the part of 
such child or children should be divided among the sur- 
vivors ; and he bequeathed his household furniture to his^ 
wife for life, and after her death, to his son and daughter 
Francis and Jane ; and appointed Waters and Tuck exe- 



Fratmis Carter died in December^ 1800, and his spn .1818. 
IPrancis Carter^ the younger, in 1809, having appointed 
Mary Tuck sole executrix of his will ; after her death, 
in 1810, J.B. Tuck became administrator of Francis 
Carter^ the younger, during the minority of the children 
Hilary Hack, 

The bill filed by W. F. Hack, otherwise Carter, David 
Tait and Z/misa his wife, late Louisa Hack, and Maria 
Hack, prayed that the riglits and interests of the Plain- 
tiffi under the will oS Francis Carter, the elder, in respect 
of their several annuities, might be ascertained and de- 

The Defendants, Jane Carter in her own right, and 
Tuck as administrator of Francis Carter, the younger, « 
insisted that the annuities given to the Plaintiff were 
payable only during their lives, and claimed the resi- 
duary estate as next of kin of the testator. 

Mr. Bell, and Mr. Parker, for the Plaintifis. 

Mr. Healdj Mr. SkadweU, and Mr. Tead, for the De- 

.The Master of the Rolls. 

The express words of the will are decisive of this 
•question. The testator has given some annuities ex- 
pressly during the life of the annuitant, odiers expressly 
during the continuance of the fund ; and a third class 
indefinitely ; the Court cannot introduce into the latter 
gifts, terms of qualification which the testator has not 
inserted. The conclusion is, that when the testator 
meant that the annuity should be paid only during the 



IMS. 1% of the anniiitnt, lie lias so declared ; and tkat wliere 
he hag not so declared, such was not his meamiq;. 

A motion was made, on behalf of the Defendant Jofir 
JtUjf 14. CarteTj that the minutes of the decree might be icaried 
by the insertion of a declaration, that, the next of kin 
of the testator Francis Carter^ the elder, were entitled 
to the proportion of his property applicable to the pay- 
ment of annuities for life, as those annuities became ex- 
tinct by the death of the annuitants. 

Mr. BeUy and Mr. Parker j for the Plaintiffiu 

Mr, Hart J Mr. Heald^ and Mr. Shadwell^ for the De-> 

Tke Masti^r tf the Rolls. 

The provision in the will for the proportionate in** 
crease or diminution of the annuities, refers exclusively 
to the increase or diminution of interest and rents of his 
property, not to the reduction of the amount charged 
on that property, by the death of annuitants for life. 
The testator has expressly declared, that on the death 
of some of the annuitants, their proportions shall be 
paid to the survivors^ die inference is, that his inten- 
tion was different in the case of the annuitaote for whose 
death no such provision is made. In the event that has 
oceumed, the death ofMarj/ Hackj a portion of the fond 
is undisposed of; and falls therefore into the residue. 
The variation proposed must be made. 

^* His Honor doth declare^ that Frandt Carter^ the 
elder, iu right of his wife^ became absolutely entitled to 
the leasehold estate in Hoxton Town, Hoxton Market 



Place^ and Gld Street Boadi and doth dechre that die 1818. 
said Francis Carter, the younger, W. F. Hack, otherwise 
Carter, Louisa the wife of the Plaintiff 2>ai;td Tait, and 
Maria Hack, otherwise Carter, are entitled to the several 
yearly sums of 20/. each, absolutely, so long as the in- 
terest of the testator Francis Carter, the elder, in the 
leasehold property continues ; and that the Defendant 
Jane Carter is entitled to the yearly sum of SO/., and the 
Defendant Ann Tfiompson to the yearly sum of 15/., for 
and during the term of their natural lives; and that 
Mary Hack, widow, deceased, in the will of the said 
Francis Carter, the elder, and the pleadings of this cause 
mentioned, was also entitled under the will of the said 
testator, to the yearly sum of 50/. during the term of her 
natural life, and upon her decease, such last-mentioned 
annuity has fallen into and now forms part of the resi- 
duary estate of the said testator, and that the annuities 
so given to the said Jane Carter and Ann Thompson, as 
Aforesaid, will also, upon their respective deceases, fall 
Into and 'form part of such residuary estate; all which 
befine mentioned yearly sums, amounting together to 
175/., being to be issuing out of the rents and profits of 
the said leasehold property, are to be increased or dimi- 
nished rateably as such rents exceed or fiill short of the 
said annual sum of 175/.; such several annuitants 
being entitled, under the will of the said Francis Carter, 
the elder, to have the whole of the rents and profits of 
the said leasehold premises distributed among them in 
'SQch pl^oportions as aforesaid: and that the said Jane 
€ktrter, as one of the next of kin of the said testator 
Francis Carter, the elder, and J. B. Tuck, as the per- 
sonal representative of the siud Francis Carter, the 
younger, who was the other next of kin of the said 
Francis Carter, the elder, are equally entitled to the re- 
sidlie of the estate of the said Fra$uis Carter, the elder; 
and doth order that it be* referred to Mr. Campbell, one, 
&c., to tax all parties their costs of this suit; and it is 



ordered that such costs when taxed, be paid out of the 
personal estate of the said testator Francis Carter j the 
elden" — Reg. Lib. A. 1817. fol. 1548— 155a 




A sequestra- tf^N the 2d of Mny^ 1818, an order was made in the 
issued for non- ^^ former causes, directing the Defendant William 

payment of Cclhouru on or before the 1st of July then next, to pay 
moneyiDto . ^ ,. *. , t i* 

court, anindi- into court to the credit of those causes, ^^ the account of 

IfciSaaof^a^ monies belonging to the personal estate of the late De- 
sum elided fendant John Parson^ deceased," the sum of 9900/. 1 45. U. 
agMost wlhom ^iiig the balance repotted due from him, by the Master's 

Sc sequestra- separate report dated the 5th of August^ 1 8 1 6, in respect 

tioQ issued* 

audbyastran- of sums received or retained, and not accounted for by 

mvwaserder- jjj^ ^ trustee for John Parson. 

ed to pay that » ^ «, _ 

fluminto Lolh&im 


(a) The following cases on from MSS. in the possession 

sequestration are extracted of the editor. 


13th November. 25 Car. 2. 1675. 

Scquj"*"^** I allowed a sequestration decreed to account, and on 

byavoluntafy ^^ proceed against the heir, that account owed SOOOL 

coDTeyance, for a personal duty decreed The cross bill in 1665 de- 

^^j^!!!ll!^' t^gainst the father, because manded the land according 

amnst the he did not claim as heir, but to the settlement. The con« 

hdr for a per- by conveyance pendente lite, veyance to the heir was 

^ ^^^m '^^ ^"^ ^^^ ^^ ^" ^^^^ ^^ voluntary, and in 1 666 ; which 

the father. 1664, demanded deeds taken I looked on as a practice to 

away by which he had con- defeat the decree. — Lord 

veyed an estate to Bland f Nottingham's MSS. 

on that bill the father was 

11th Decent 



Colhaim not having obeyed the order, and being be- 
yond the jurisdiction of the Court, the solicitors of Lua/ 
Groome, the widow and sole acting executrix of John 






1 1th December. 26 Car. 2. 1674. 





A sequestration o^WithanCs 
estate had long been fenced 
off by a conveyance pendente 
iiUf viz. a conveyance in 1666» 
whereas the bill was filed in 
1664. When this would pot 
do, they resorted to former 
settlements, upon which there 
was this case. Anno 1653, a 
feofiinent was made to the 
use of George Witham for 
life, remainder in tail unto 
Henry Witham^ (the now 
sequestered person,) with 
power of revocation, but no 
new power oflimitation reserv- 
ed ; afterwards, anno 1 668, the 
first settlement was revoked, 
and new uses were limited 
again to Henry. Mr. Bland*B 
counsel urged that the first 
settlement was well revoked 
by the second, but the uses 
of the second were not well 
limited, for want of a new 
power of limitation reserved, 
and by consequence, the fees 
descended from George to 
Henry without any settle- 

ment, and might well be 
sequestered in the hands of 
the heir for a duty decreed 
against the father, who had 
been also sequestered, and 
now the sequestration conti- 
nued; and of this opinion 
they had several great coun- 
sel upon advice. 

I said, the opinions of coun- 
sel were great or less accord- 
ing to the reasons. 1 thought 
Henry Witham to be well in 
by the second settlement ; fof 
when the second settlement 
had executed the power of 
revocation in the first, a 
power of new limitation by 
the second settlement must 
need be incident, though it 
was not reserved ; first, be- 
cause the revocation of the 
first conveyance extended 
only to the uses limited in it, 
but could not extend to the 
common law estate, which 
passed by the first, for that 
is irrevocable, ergOy a power 
to limit new uses upon it 

Vol. III. 

(a) Rep. temp, Finch^ 1 26. 





r&l 9. Parson^ caused an attachment, and all the intermediate 
y'^^^^^""^ processes of contempt to a sequestration, to be issued 



against him, and also commenced an action against him 


must remain to the feoffor 
without reservation, or his 
estate is lost; secondly, 
though no man can have a 
power of revocation unless 
he reserves it, no man can 
want a power of limitation 
unless he excludes himself 
from it; thirdly, when a 

power of revocation is re* 
served to a stranger, he has 
no power of limitation unless 
reserved ; secus ubi the feoffor 
'himself has the power to 
revoke. — Vide Winstanley*% 
case, (a) So I discharged the 
sequestration. — Lord No$* 
tingham*» MSS. 


3d June. 28 Car. 2. 1676. 

* . . A Iceacy was devised in 

Lands, when , , /. /» , , 

bound from 1627, and the profit* of land 

the institution during the minority of a 
wh?nTt^^ daughter and heir, and until 
bound till se- she came to 21, charged with 
questration. ;• . these profits were received 

and applied till 13, and at 16, 
the daughter and heir mar- 
ried one CrqflSf the Plain- 
tiff^s father, against whom a 
decree was had that the laud 
should continue to be charge- 
able, whicii decree is vigor- 
ously prosecuted by Oldfield 
the Defendant, who is intitled 
to the unsatisfied legacy; 
but the persons truly grieved 
by this proseciKion are Brook 
and Foder^ two purchasers of 
part of the land, and another 
who was devisee of the other 
part of the laud; and these 
make use of the Plaintiff's 

name to bring a bill of review 
to reverse this decree, from 
which they could not other- 
wise free themselves. When 
they appeared and were ex* 
amined, the error assigned 
was, tliat the land was not 
liable after the daughter came 
to 21 , yet the decree had con- 
tinued the clmrge upon it. 
The Defendant, who demur- 
red upon this bill, said that 
he had no intent to charge 
the land but only from the 
marriage till 21, and not after ^ 
and urged that be who broke 
the trust was liable in his per- 
son to make good all thai- 
might have been received 
until 21 ; it is true the land 
was not directly liable, but. 
yet a decree against him or 
his. heir, while the land wa» 

(a) CH. 2 AV*/tf,270. 3 Kehle, 7. 




in the Court of the Lord Mayor of London, and accord- 
ing to the custom of the city, attached a debt due to him 
in the hands of Daniel Henry Bucker, esquire, of Mine* 





in his hands, binds the land ; 
and a purchaser since the de- 
cree will be also bound. To 
which the Plaintiff said that 
primafacie every decree binds 
the person only, and the land 
itself whereof the profits were 
in demand is not bound till 
sequestration ; whereof the 
ccmsequence is that death 
before sequestration dis- 
charges the land, and if the 
Defendant devise before se- 
questration and die, the de- 
visee will be freed. 

I said, where the lands or 
the profits of the lands, which 
is all one, are directly in de- 

mand, the title is bound from 
the bill exhibited, and every 
^urchoBer pendente lite comes 
in at his peril ; but where an 
account of profits is prayed 
by w^y of execution of a 
trust, there the person only 
is charged for breach of trust 
in not applying the profits, 
and the land is not charged 
but while in his hands, nor 
then neither till sequestra- 
tion ; so purchasers and devi- 
sees before sequestration are 
free: but overrule the de- 
murrer, and after answer the 
Court may consider further. 
— Lord Nottingham's MSS. 






10th February. S3 Car. 2. 1680-81. 

After a decree against the 
fother, and a report of 500/. 
due confirmed, and just be- 
fore a sequestration awarded, 
the father conveys 7000/. of 
land to his son, which was his 
whole estate, without reserv- 
ing any maintenance to him- 
self, or any visible trust ap* 
pearing. The considerations 

expressed were these: 1. To able consider- 
enable the son to make a ation, or ^oii4 

jointure to a wife who brought *^^' 
1700/. portion, and was mar- 
ried 10 months after ; 2. To 
pay the father's debts, viz. 
800/. on a mortgage, and 800/. 
more in other debts. 

This conveyance the son 
pleaded in bar of the seques- 

(a) 2 Ca. in Cha. 4 J. See 1 Ves. I8S. 

U 2 




1819. itig Lane. On the 1 2th of Deccniher^ 1818, Mr. Rucker^ 

^- " ^ having: pleaded to the attachment nil debet* filed a bill of 

FrANCKLYN , ^1 1 -n- 

V. interpleader against Frederick Pinnej/, Charles Pitmey^ 

CoLHouN. Thomas 

tration, and if the son be 
either a purchaser or come 
involuntarily and bond^fide, 
the plea is good. Against the 
considerations of this deed it 
was urged: 1. The marriage 
settlement is but a pretence, 
for the deed was only be- 
tween father and son, the 
wife's friends no parties ; also 
this conveyance not neces- 
sary to enable the son to make 
a jointure, for the father being 
seized in fee could have done 
it without this; and beside, 
the settlement is strange, and 
very suspicious, for the father 
strips himself of all, and gives 
the son the portion too. 
2. The payment of debts is 
but a pretence neither, for 
the 800/. upon the mortgage 
needed no other provision, 
and the other 800/. were 
voluntary debts created for 
this purpose. 

At last the defence is made 
barefaced, and the Defendant 
retreats to this poiat;. that 
the sequestration binds not 
the land till laid on, at least 
not till the order made, and 
it is lawful to prevent a se- 
questration by a conveyance 
made for that purpose, before 

the date of Uie order ; as at 
common law a man may make 
a conveyance to prevent an 
outlawry : and this point 
strikes home indeed; ergo^ 
it is fit to settle this point 
once for all, without making 
use of any shifls or evasions^ 
or straining the case to make 
a presumptive fraud or result- 
ing trust, though there be 
ground enough for that too* 

I will ergo, at this time, 
for learning's sake, and for 
use, enlarge myself a little 
upon tlie nature of seques- 
trations in chancery. The 
judges of the common law 
have been so very unwilling 
to support any proceedings 
in equity, that they have 
come to very strange resolu- 
tions. 41 EL B, R. Brograve 
V. Watts, Cro. 651. a seques- 
tration of goods awarded by 
the Court of Requests, ad- 
judged no bar in detinue; 
Af. 5 Car, B. R. BUI v. Heber^ 
adjudged on argument, no bar 
in trover. Noy. 20. Jdc* B, R. 
Elwai/t*s case, upon an in- 
dictment of murder for kill^ 
ing a sequestrator^ the Court 
inclined that he was no such 
l^gal officer, that it should be 




Thomas GroomCj ^nALauyhis wife, and JViUiam CoUiotm, 1819. 
praying that the Defendants might interplead and settle p ^ * 
their claims in respect of the debt, and that the Plaintiff 



malice implied to kill him; 
which was a bloody opinion, 
but the prisoner durst not 
trust to that opinion, but sued 
out his pardon. Note at that 
time Bishop Lincoln was Gus- 

This is not the first time 
that the judges have endea- 
voured, by several resolu- 
tions, to depress the chan- 
cery, and yet, afler judges 
have been ashamed of those 
resolutions. II EA. 8. He 
who has notice of a trust, and 
then procures a release from 
the trustee, cannot be ques- 
tioned in equity; cujus con* 
irarium verum est. 22 E. 4. 6. 
I RoU. 374. He that pays a 
statute or a bond without an 
acquittance, shall have no re- 
lief in equity if he be sued 
again. What can be more 
absurd ? Tr. 1 1 Jac. SheUet/ 
V. ShiOe, Sir F. Moor (a), it 
was held that a suit in equity 
was no breach of a covenant 
not to sue, because the law 
takes no notice of a suit in 
equity ; but 22 Car. 2. Scac. 
in Lord Saint Alban\ case, 

Mich. 1670. Hale, chief ba- 
ron, justly denied this case. 

12 Jac. B. R. Glascock v. 
jRoto/y, 1 Roll. SI ^. {b) there 
ought to be no relief in equity, 
against an entry for a condi- 
tion broken ; visum teneatis ? 

13 Jae. B. R. Fynn v. Smiih, 
1 RM. 376. ((f) If one joint 
tenant takes all the profits, 
there is no relief in equity. 
Durus sermo. 13 Jac. B. R. 
Powell V. Harris, 1 Roll. 
376. {d) No account can 
be required of executors in 
equity; against all experi- 
ence. 14 Jac. B. Ra Bromage 
V. Jenningy 1 Roll. 380. {e) 
where damages may be reco- 
vered in an action upon the 
case, there shall be no relief 
in equity to compel the per- 
formance in specie. 3 Car. 
Bm R. Miller and Reamess 
case, there shall be no relief 
in equity, when the bond is 
lost, 1 Roll. 375. These ex- 
travagant opinions no man 
will own, no more than the 
exploded opinion that to sue 
in chancery afler judgment is 
a pnemunire. 

(a) Selby v. Chute, Moor, 859. (c) 1 Roil. Rep, 538. 

\b) 1 Roll. RepA20. 2 Bulstr. (d) 1 RoU. Rep. 263. 

148. (e) 1 Roll, Rep, 554. 398. 

U 3 A% 






might be at liberty to bring the sum of 1877^ 6s. 6d. 
the amount of the debt, into court, for the benefit of the 
parties entitled ; and an injunction. On the 4th ofFebru- 


As the judges did of them- 
selves reform these opimonsi 
when they saw the inconve- 
nience of them, and how little 
they prevailed against the 
Chancery, so they have since 
begun to relent even in the 
matter of sequestration. TV. 
17 Car. 1. C. B. Serjeant 
BacoH, moved for a prohibi- 
tion to the Court of Requests 
for granting a sequestration 
against the lands, and be- 
cause the sequestration was 
of other lands than those 
which were in demand, the 
prohibition was granted, 
March Rep. 99. pi. 171. This 
admits that of the thing in 
demand a sequestration may 
be, and goes as far as ever my 
Lord Bacon* 8 rules went (a), 
per Banks, chief justice; and 
this is warranted by the rea- 
son of law ; for every court 
baron may have a levarifacias, 
only there it is renewed from 
time to time, whereas a se- 
questration is a continuing 
levari, and it were hard to 
deny the Chancery the power 

of a court baron. So that 
by this time, it is become a 
settled point, that sequestra- 
tions may be, and of the thing 
not in demand, viz. of land 
for a personal duty, nay of a 
copyhold too (b), and this 
without doubt is much an- 
cienter than the precedents ; 
for the records of the pro- 
ceedings in equity have not 
been so carefully kept. The 
eldest precedent in chancery 
of a sequestration, is about 
41 Eliz. (c) but in the county 
palatine of Chester, there are 
precedents as ancient as 
1 Mar. And, indeed, no 
Court of Equity can subsist 
without this process, nor is it 
any great severity to find out 
a way to make men pay their 
debts effectually. 

In the next place, it must 
be observed that sequestra- 
tion is not like any process at 
common law, nor is it awarded 
in imitation of any of those 
processes. 1. For first, it is 
not like a levarijacias, which 
ceases by the death of the 

to sequf 

of leqne 

(a) Orders in Chancery, ed. 
Beames, p.l5.ei seq. 

(b) See The Marquess ofCaer* 
marthen v. Hawson, poti, p. 294. 

(c) Tothill mentions a case of 
KnighUtf v. Graunt, 51 Eliz. 
TrantacHaiu, 175. 




anfy 1819) the solicitoi's of Mrs. Groome received a no- 
tice from the solicitors of Mr. Riicker, that he intended 
to proceed no farther with the bill of interpleader, but 





party. 2. It is not like the 
outlawry, where the profits 
are seized for the contempt, 
but do not necessarily go in 
satisfaction of the debt. 3. It 
is not like an execution upon 
the statute Westminster 2. 
or an extent ; for though an 
injunction for the possession 
be like a liberate^ yet it covers 
the whole, and reaches copy- 
hold landsy which no extent 
does. So that it is a special 
remedy, warranted by the 
course of the Court, and stands 
only upon its own rules. 

It remains ergOy to consider 
the bounds and limits of it ; 
and first, we may be sure 
that this being the process of 
a Court of Equity, is never to 
issue out against the rules of 
good conscience. E^go^ a 
purchaser for a valuable con- 
sideration, before the seques- 
tration, is free ; for though a 
decree, as to some purposes, 
be equal with a judgment, yet 
it is never so till a sequestra- 
tion awarded, for till then 
neither lands nor goods are 
bound. So is he free who 
comes in voluntarily and bond 

Jide; for the very same reason, 
afler a sequestration laid on 
against the father, if he dies 
and the lands descend to the 
issue in tail, the sequestra- 
tion is discharged ; so ruled, 
6th Julyy 1673. Earl Athol 
v. Comit. Derby, (a) But 
whether it continues against 
the fee simple lands was not 
then debated. It has been 
said that there is as much 
reason to continue a seques- 
tration against the heir in fee. Effect of se- 
08 to put the party to a new f^\^'Z 
sequestration after revivor; heir, 
but I conceive that the se- 
questration does not continue 
until the suit revived, against 
the heir, and also against the 
executor, who may have as- 
sets ; no, not though the sou 
came in and was examined 
in his father's lifetime, and 
set out his title by convey- 
ance; for after his father's 
death a new title accrues to 
him as heir ; but after revivor 
the sequestration will bind 
him as much as it did in his 
father's lifetime. And this 
was one of the points in Blmid 
and Withams case, (b) 

{a) \ Cha. 283. 2 Lev, Marqueu of CaermarUum v. Haw- 

71. «o/t, post, p. 294. 
{b) Ante, p. £77. See Tlie 

U 4 The 






to defend the acUon brought in the Lord Mayor's Court ; 
and on the 12th of February j 1819, obtained a writ of 
sequestration) to sequester the goods and effects of 


The only difficulty is the 
point in question, how far a 
Yoluntary conveyance to the 
heir, on purpose to prevent 
and avoid a sequestration ap- 
proaching, shall take place ? 
And this ought to be no dif- 
ficulty neither, for reason and 
authority are against it* l.No 
such conveyance can be bond 
Jide, which is made with an 
intent to avoid a just debt. 
2. It tends to make all pro- 
ceedings here illusory. 3. It 
teaches an art of cheating ; 
for a man may borrow money 
to buy lands, and being sued 
in Chancery for the money, 
Jhe may after a decree, make 
a voluntary conveyance to 
the heir, and defeat the re- 
medy. Bland and Witham*s 
•case is an authority in 
point (a) ; for 4th March^ 

1672, it was debated before 
the Earl Shaftsbury^ chan- 
cellor, whether the seques- 
tration could be continued 
against the son after revivor ? 
But 13th November y 1673, I 
did allow the sequestration to 
proceed. Afterwards WUham 
departed from the title he had 
made pendente lite, and set 
up a former settlement in 
1653 ; upon which, 11th De- 
cember, 1673, I delivered my 
opinion against him. He de- 
sired a case to be made, but 
never argued it. 17th May^ 
29 Car. 2. Langley v. Bredon^ 
decree for 400/., sequestra- 
tion awarded; the Defendant 
pleaded a voluntary convey- 
ance before the sequestration 
awarded ; yet ordered to an- 
swer. — Lord Nottingham's 

JLord PELH AM v. Duchess of NEWCASTLE, (b) 

A Defendant 
ordered to de- 
liver a copy of 
a deed« and 
refer to it in 
tier answer as 
% true copy. 

The Master reported the 
answer insufficient, for not 
setting forth the deed that 
declares the uses of the fines 
and recoveries that were le- 

(a) Anie, p. 877. Bird v. Little- 
hales f post, p. 297. Hamblyn v. 
LcCf post, p. 299. 

vied and suffered by the Duke 
and Duchess of the Netocastie 
estate ; and upon the general 
exception to the report. 

(b) The circumstances of the 
case appear in the report, 5 Bro. 
P. C. 460. 





W. Colhoun, for non-payment of the money ordered to 
be paid in by him, which, on the following day they f^^jicklyk 
served on Bucker, with a written notice that they, as two 



Sir Thomas Ptnois^ for the 
Duchess, insisted, as the De- 
fendant did by her answer 
insist, on the very same mat- 
ter in bar ef the discovery of 
this deed that had been be- 
fore pleaded and overruled ; 
with this further, that the in- 
tention for the preserving the 
estate in the name of Caven- 
dish was continued to the 
making the deed, and a clause 
in the deed that provided for 
It was set forth in the answer; 
that what was prayed by the 
bill to have the deeds set 
forth fit hac verba, was worse 
than delivering it over to the 
Plaintiff, for that would dis- 
cover it to all the world ; that 
the Duchess had an estate for 
life limited to her by that 
deed, and that the Duke hav- 
ing agreed, in consideration 
of her joining in that settle- 
ment, that her estate for life 
should be protected from the 
incumbrances which amount- 
•ed to 80,000^., and affected 
that estate, she was a pur- 
chaser of the benefit of those 
incumbrances; and that those 
incumbrances being recited 

in the deed, the discovery 
might endanger her estate for 
life ; that the Plaintiff was not 
intitled to that discovery, 
being an infant and not capa- 
ble of confirming her estate 
for life, and not having prov- 
ed the will and established 
the title at law. On the 
last head he cited the case of 
Dr. Hamilton and Mr. Fleet- 
xnood ; that Hamilton claim- 
ing under the remainder man 
in fee, and the estate tail 
being spent to all but one 
person, who was under an in- 
capacity, the doctor brought 
an ejectment, and after he 
had proceeded so far as that 
he got a special verdict, he 
brought his bill for discovery 
of deeds and writings, and to 
stay waste ; that upon excep- 
tions to a report of the insufii- 
ciency of FleetxvoocTs answer, 
the Court would not oblige 
Fleetwood to answer, because 
the doctor had not affirmed 
his title at law. (a) He cited 
likewise Whitcombe's case(d); 
which was, a man led two 
daughters by a first wife, and 
the second wife ensient with 

fa) 8 Km. Ab. 538 (6) WhUcombe v. WhiUmnbe, Free, in Cha. 280. 

a son, 






of the commissioners named in the writ, sequestered the 
sum of 1877/. 6s. 6d.f admitted to be due from him to 
Colhotm^ and all arrears of interest, and required pay- 

a son, who lived a year, and 
the uncle as heir to him, 
brought an ejectment, but 
was nonsuited bj terms being 
«et up by the daughters ; he 
then brought his bill for a dis- 
covery of deeds, and particu- 
larly of the leases of the 
estate, to enable him to prove 
a possession in the infant ; and 
upon exceptions to a report 
of the insufficiency of the an- 
swer for not setting them 
forth, the report was over- 
ruled : and at hearing, Lord 
Ccwper would not compel the 
Defendant to discover, and 
declared that this Court would 
not in all cases help a person 
to deeds that he hath a right 
to at law ; that it would not 
help a first purchaser against 
a second without notice, nor 
where there is a very hard 
bargain made between two, 
will it help the person that 
would take an advantage of 
it to enable him to do so 
at law; and that the present 
case was much stronger than 
coming here for a discovery 
before the hearing. 

Note Whitcombe's case was 
said to have been a case of 
^reat compassion, and to 
have been compounded at 


last. And Lord Keeper 
seemed' to think that decree 

Hooper insisted that the 
Duchess was a purchaser, and 
that the Duke was not en- 
titled to production without 
confirmation ; and that in ^e 
case of Sir Coplestone Bun* 
fieldj a jointress subsequent to 
a marriage was not compelled 
to discover.; nor in the case of 
Rook V. Rook J where the deed 
comprised both the jointune 
and other lands. 

Cheshire. A right to dis« 
covery is not substantive bat 
dependent on a right at law, 
which the Plaintiffs ought 
to establish first, and they 
had room enough to try the 
validity of the will without 
discovery of the deed. 

Williams put the case, that 
where conies are tithable by 
custom, and a bill is brought 
to discover the quantities and 
value; if the Defendant de- 
nies the custom, he will not be 
obliged to set forth the quan- 
tities, &c. 

Lord Keeper. That is' 
matter of •'Account. In this 
case you say there are incum- 
brances ; how shall the Plain- 
tifi* be able to try his right ? 




ment of the same. The writ of sequestration, and a 
similar notice, were afterwards served on Frederick Finn 
ney and Charles Pinney. On the 2d of Marck, 1819, 
the bill of interpleader was dismissed on the motion of 
the Plaintiff. 





Cheshire. The Court may 
direct an issue, devisavit vel 

Peat. We are a purchaser, 
though not of our estate for 
life, which is part of an old 
estate; yet of the incum- 
brances* Lord Pelham hath 
no right* We have denied the 
will and his title, and it must 
be taken now on our answer ; 
and your lordship will not on 
a feigned suggestion oblige us 
to make any discovery. Our 
plea was overruled because 
the matter was not then fully 
discovered to the Court ; it is 
now, having disclosed in our 
answer the clause in the deed 
that relates to that matter. 
If the words that direct the 
taking the name of Caven- 
dish be not found enough to 
make either a condition or 
limitation, there is the greater 
reason that it should enure 
as a trust; continuing an 
estate in a name and family 
had been regarded in all 
ages ; that was the reason of 
making the statute. 

Dr. Denis 0*lVilliams. If 
a plea is overruled for any 

mistake, the Plaintiff may 
insist on the same matter by 
way of answer. 

Sir J. Jehyllf said (inter 
alia) that it could not be a 
trust, there being no obliga- 
tion on the Duchess to take 
the name, and therefore no 
trustee made by the deed, 
nor cestui que trust. 

Attorney General. The 
Duchess's fears of the in- 
cumbrances are grouodless, 
she admitting by her answer 
that they were all assigned in 
trust for the Duke before the 
deed of settlement, and that 
there was a proviso in that 
deed that they should be 
assigned to protect the seve- 
ral limitations of that deed ; 
which agreement, Hofvoe said, 
was as effectual in equity 
as if they had been actually 
assigned pursuant to the pro- 

Vernon. Two dilatories 
were never to be allowed by 
the printed rules of the Court ; 
and therefore a man cannot 
plead twice or demur twice, 
nor where a pica in bar is 
overruled, can he insist upon 







The debt from Bucker to Colhoun arose on a bond 
dated the 14th of February ^ 1778, and executed by 
James Campbell and three other persons, resident at 


the same thing by way of an- 
swer, unless it be overruled for 
informality only, and not for 
the matter, (which it was here.) 
It is true they have thrown 
in some additional circum- 
stances ; but if that contriv 
ance would avail they might 
do so fit infinitum* What 
was said by the Court be- 
fore on their plea, viz. if 
there were such a trust, &c. 
the discovery would not hurt 
them, and if there were not, 
tlie concealing the deed were 
a manifest injury to the Plain- 
tilF, and tliat without a disco- 
very of the deed, it could not 
be brought before the Court 
in judgment, whether there 
was or not, was unanswer* 
able; and the Plaintiff did 
not claim paramount the 
Duchess; and sought only 
a discovery of her own act. 
He never heard it said that 
a purchaser was not com- 
pellable to disclose his own 
title, nor that advantage 
might not be taken of any 
clause in the purchase deed. 
Cooper. It was not pos- 
sible for the Plaintiff to go 
to law witliout a discovery of 
the deed, not even u[>on the 

issue devisavit vel nan ; for if 
it was not in the Duke, he 
could not devise it, and that 
was the only deed that 
brought the estate unto him. 
Howe. The apprehension 
of danger of any strangers 
taking advantage of the 
discovery that was pray- 
ed, was expelled in Lord 
Crave7i*B case ; and if there 
was any real danger of letting 
in any incumbrances of other 
persons by it, it ought to 
be particularly insisted on 
by answer; there was no 
occasion here for confirming 
the Duchess^ estate for life, 
she not being a purchaser of 
It, and it being created by the 
same deed under which the 
Plaintifis claim, and the Duke 
having confirmed it by his 
will, which is much more 
effectual than a bare offer to 

Lord Keeper. The Duchess 
is said to be a purchaser, and 
therefore not compellable to 
discover. She is no pur- 
chaser of any limitation in the 
deed ; those limitations are 
rather the considerations of 
her purchase of the benefit of 
the incumbrances; there is 




Tobago^ for securing to Colhoun 2874-/. U. 5d. sterlings 1819. 
with interest at 8 per cent, from the 2d of April, 1778 r- « ' ' ' 
Jiucker being the executor of «7. Campbell, the surviving 




no reason of her being pur- 
oliaser of them, for her not 
discovering the uses of the 
deed, which is another thing ; 
^lie bill doth not seek a dis- 
covery of the incumbrances^ 
bat of a deed in which they 
3Jre recited only : your fears 
of those are imaginary. Let 
lier set it forth in hac verba. 
He afterwards proposed to 
both sides, and they consent- 
ed, that instead of that, she 
should deliver a copy of it, 
and refer to it in her answer 
as a true copy. 

Note. That nothing was 
insisted on by way of answer 

in bar of a discovery, but 
what had been before plead-- 
ed and overruled, or allega- 
tions taken out of the deed 
itself; if they had been 
pleaded, the plea would not 
have been proved without 
producing the deed, whicb^ 
when produced, the Plaintiff 
might take advantage of. It 
seemed therefore vain to 
allege that, in bar of a dis- 
covery, which could not be 
proved without giving the dis- 
covery objected against. — 
From Mr. Cox*s notes. Lord 
Colchester s MSS- 

Lord PELHAM v. Duchess of NEWCASTLE. 

Wed \i^ 

The sequestrators having 
Ifdup^^ entered into Poxvis House, 
(to which Lady Henrietta 
Holies made title as heir,) 
and sequestered all the goods, 
drc. there belonging to the 
Duchess, they were forcibly 
turned out of possession ; and 
upon affidavit of it, Grand- 
man, the Duchess's solicitor, 
who directed it, was com- 
nitted, and an injunction 
awarded to restore the se- 
questrators to the possession ; 

but before they were actually 
restored, the Lady Henrietta 
moved the Court, that it 
might be referred to a 
Master to inquire what goods 
that were sequestered be- 
longed to her, and what to 
the Duchess; and that money 
in Sir Francis Child's handsi 
which had likewise been se- 
questered, might be discharg- 
ed, upon a suggestion, that 
though Sir Francis had given 
notes payable to the Duchess 







obligor, judgment had been obtained against him for 
payment from the assets of Campbell. The amount due 
for principal and interest on the 19th of Pebruofyy 1819, 


No examin- 
ation pro in/tf- 
reue tuo^ be- 
fore the se- 
have made a 

A sum of mo- 
ney in the 
bands of the 
banker of a 
party agfunst 
whom a se- 
had issued, 
Proceeding for 
the interest of 
a third person. 
Power of se- 
questrators to 
open boxes. 

or order, it was really the 
money of the Lady Hen- 
rietta; but both parti of the 
motion were denied as irre- 
gular, the first being too early 
before the sequestrators were 
restored, and for the last, it 
was not proper for the Court 
to determine the property of 
the money upon affidavit. 

It was then moved that 
Lady Henrietta might come 
in and be examined as to the 

money pro interesse ; but that 
was denied too, because the 
sequestrators had not made 
any return; till they have, it 
cannot appear to the Court 
what is sequestered: after 
their return, any one who 
claims a title to the thing se- 
questered, may move to have 
the same, and be examined 
pro interesse. — FromMr. Cox*a 
notes, Lord Colckester'sMSSm 

Lord PELHAM v. Duchess of NEWCASTLE. 

Lady Henrietta HoUes moV' 
ing that she might be admitted 
by guardian, to be examined 
pro interesse suoy touching the 
money in Sir Francis ChilcTs 
hands, and other things se- 
questered, upon process 
against the Duchess, she was 
directed to put her sugges- 
tions into an order, and to 
specify what she claimed title 
tOy and how, and that Sir 
Francis Child should give the 
Plaintiff a copy Of the ac- 
count on which the balance 
in his hands that was seques- 
tered arose, to the end that 
the Plaintiff might the better 

know how to form proper in** 

Serjeant Hooper, for the 
young lady, said, that if a 
sheriff executed an execution 
upon goods that did not be- 
long to the Defendant, the 
party grieved might have hia 
action; but in case of seques- 
tration, all the recompence a 
person could have, whose 
goods were wrongfully se- 
questered, was barely a resti- 
tution on proof of his right. 

ZA)rd Chancellor, as against 
the Duchessy allowed the se- 
questrators to open boxes 
and rooms that were locked, 




was eompnted at 5494/. 5s. 3d. The Defendants IV^ 
derick Pinney and Charles Pirma/f claimed te be enti- 
tled to the debty under an assignment from Calhoun to 





if the keys were denied them ; special order of the Court. — 

to schedule the goods in them, From Mr. Cox's notes, Lord 

but to remove nothing from Colchester^» MSS. 
Poms house without the 

Lord PELHAM v. Lord HARLEY. 

Mr. Aislabi/f one of the 
commissioners of sequestra- 
tioDy being likewise an attor* 
nej and agent for Lord PeZ- 
' kam^ made use of the seques- 
tration and injunction upon 
it, in many instances to 
compel the tenants of the 
Duchess's jointure, and the 
Cavendish estate, and of the 
other estates of the late Duke 
of Newcastle^ to attorn and 
pay their rents to Lord PeU 
ham*s use ; and in several 
places did the same thing by 
threats, or remitting them the 
land tax> or allowing for re- 
pairs, where neither were al« 
lowed by their leases, and 
^ving them notes to indem- 
nify them, and receipts in full. 
Lord Chancellor^ upon the 
petition of Lord and Lady 
Harley^ complaining [inter 
idia) of this exceeding great 
abuse of power in Mr. Aislabi/f 
declared that the sequestra- 
tion ought not to be laid on 

any estate but the Duchess's ; 
and that though the Duchesa 
had possessed herself of the 
rest, her possession must be' 
taken to be in right of, and 
the possession of, her infant 
daughter; that Mt. Aislaby 
having gained possession for 
the Plaintiff by the methods 
before mentioned, was a great 
abuse of the process of the 
Court; for which reason he 
directed that he should shew 
cause the last Thursday in 
term why he should not stand 
committed, and pay Lord 
Harley his costs; that the 
sequestration should be dis- 
charged, as to all the lands 
except the Duchess's join- 
ture, and the Cavendish estate,, 
in which the tenants should 
attorn to the sequestrators, 
and in the other re-attom to 
Lord Hariey ; that the profits 
received by the sequestrators 
or for Lord Pelham's use, 
should be brought before a 







their father John Pinney ; the validity of which was dis* 
puted by Mr. and Mrs. Groome. 

A motion was now made on behalf of Mr. and 
Mrs. Groome, that Mr. Rucker might be ordered to pay 


Master, and those that arose 
from the other estates be paid 
over to Lord Harley, subject 
to the order of the Court. 
The possession of Newcastle 
house, which was never se- 
questered, he directed to be 
delivered to Lord Harley^ 
and the goods to be removed, 
unless Lord Pelham agreed 
to their being delivered over 
to Lord Harley on his giving 
security ; and by consent of 
both sides to save expense, 
directed the sequestrators to 
be discharged out of the 
three great houses of WeU 
hecky Nottingham Castlcy and 
Boscover, and one person to 
be placed in each, by the ap- 
pointment of the Master, to 
take care of the goods seques- 
tered. The evidence-room 
in Welbeck, was by consent 
to be locked up without in- 
spection, and a key delivered 
to each party. 

Serjeant Pratt, and Sir 
Peter King, for Lord Harley, 
cited the case of one Riddle- 
stony in B. R.y who, upon an 
erroneous judgment in eject- 

ment, took out an hob. Jac-^ 
possessioneniy and extended it 
as to part, and for the rest 
only shewed it to the tenants,^ 
and by that means obliged 
them to attorn : the judgment 
being set aside, the Court 
awarded restitution of what 
he had got under the hab.fac^ 
possessionem ; he restored 
those lands where the writ 
had been executed only, pre- 
tending that the tenants at^ 
torned voluntarily in the rest; 
but the Court compelled him 
to make an entire restitution^ 
and committed him for his 

Serjeant Pratt said that 
in all cases where the process 
of the Court was misused to 
obtain another end than that 
for which it issued, though 
that end were otherwise ia 
itself lawful, it was a contempt 
of the Court, and the course 
of tlie law always put things 
again in statu quo; and he 
instanced in the case where 
a man makes use of the pro- 
cess of the Court at West^ 
minstety to bring a man 




into the bank on or before the 14th of May, the siim of 1819. 
5494/. 5s. 3d. 




withia the process of an iDPe- 
rior Court or jurisdiction, 

that he may serve him with 

process of that inferior Court. 
— From Mr. Cox's notes. 
Lord Colchester^a MSS. 

Lord PELHAM v. Duchess of NEWCASTLE. 





sorts, the 


Afler a sequestration had persons privy to the Duchess's 

issued against the Defendant having lefl the deeds there,) 

bj order of the House of was seen in the house and in 

Lords, for not complying that closet, afler he was told 

with the order of the Court, 
by which she was directed to 
set forth the deed of 1693, 
in hose verba, or deliver an 
attested copy of it, and refer 
to that in the answer. The 
sequestrators were forcibly 

by the Duchess where the 
deeds were left, and before 
the public search in the pre- 
sence of the Master. At that 
search no deeds could be 
found, nor were they afler'- 
wards. The Duchess dis* 

turned out of possession of closed this matter by a fur- 
Powis House, and the day ther answer, and set forth 

before they were to be re- 
stored to the possession of it, 
the Duchess lefl the two 
deeds ofJantiari/, 1693, in a 

three abstracts of them, which 
she insisted was all she could 
do. She afterwards submitted 
to be examined upon oath. 

cupboard in her closet, of which she was, and denied her 
which she made an entry in being privy to their being re- 

her pocket book, and some 
time after applied by petition 
for leave to search tlie House, 
which was granted, but to be 
in the presence of the Master 
and the Plaintiff. The soli- 
citor Dummor, (who with au- 
ditor Harly were the only 
Vol. m. 

moved, or knowing what was 
become of them. 

DummeTf and several 
others, were examined in 
open court, but no light 
could be got from them. 
The Court, upon examination, 
was of opinion that they were 
X taken 






The affidavit filed in support of the motioR stated* in 
addition to the preceding facts, that the proceedings in 
attachment could not try the question of property in the 
debt, which being due from Rucker as executor only, he 


taken away by somebody with 
a design to serve the Duchess ; 
but however afterwards, upon 
the Duchess producing the 
abstracts, and submitting to 
be bound by them, and bring- 
ing before a Master a settle- 
ment made by her of the 
CavetuUsJi estate to different 
uses, after the order for 
sequestration, she having 
done all now in her power 
to obey the order for setting 
forth the deed, though, when 
it was pronounced and for 
a long time, she had had 
the deeds in her custody. 

the Court discharged the 
sequestration upon her pay- 
ing costs, and making a pro- 
missory affidavit to produce 
and discover the deeds, if 
ever she should discover any 
thiDg of them. 

Lord Chancellor seemed to 
say . that he could not have 
discharged the sequestration, 
if the counsel for Lord P^ 
ham had not closed with the 
Duchess's offer to be examin- 
ed upon oath, and so put the 
matter into a different method 
of inquiry. — Lord Colches^ 
ter'a MSS. 

In Scacc. Mich. 4 Geo. ^. 

Whether a 
tion after de- 
cree, it de- 
by the death 
of the De- 
fendant; and 
, copvhold 
lands are sub- 
ject to seques- 
I tration,Qii<rrr. 

The Marquess of CAERMARTHEN, executor of the 
Duke of LEEDS, his grandfather, and WHITEHEAD, 
Plaintiffs, V. RICHARD HAWSON, Defendant. 

The Plaintiff's bill set forUi 
a sequestration against the 
Defendant's father, Rd. Haxv' 
soHy for 136/. Is. ifj^d.f on 
23d January y 1702. The 
commissioners returned that 
they had sequestered, to the 
use of the Duke, a messuage, 
orchard, and garden, in Kirby 

Moor^ of which WhiUhtadwZB 
then in possession, and of 
which Rd. Hawson was then 
seized in fee, or for a long 
terra of years ; and thereupon 
an order was made, 23d April, 
1733, that the tenant should 
pay to the Duke, or to whom 
he should appoint, the grow- 



could not be arrested for h, and by the custom of I/m-- 
don it could not be made the subject of attachment. 

Mr. Hart J for the motion. 





ing rents. The tenant being 
served with the order attorn- 
ed, and on the 20th June^ 
I7OS9 the Duke assigned the 
premises to Whiteheady to 
hold till the decree perforn- 
edy with a letter of attorney 
to act as the sequestrators 
might have done, and receive 
the rents. Hanson nei- 
ther paid the Duke or the 
Plaintiff, Whitehead^ nor had 
made any satisfaction, and 
died 1719, intestate and in- 
solvent, the Defendant being 
his son and heir, who pretend- 
ing the land to be copyhold, 
got admitted, and threatened 
to bring ejectments; so the 
Plainti^ pray a revivor of the 
sequestration and proceeding, 
and an injunction to quiet 
Whitehead's possession. 

Philip Ward's argument. — 
The first question is, whetlier 
copyhold lands are sequestra- 
ble ? It is laid down per Lord 
Nottingham, Chancellor, in 

Coulston V. Gardiner^ HiU, 
S2 and S3 Car. 2. 2 Chan. 
CateSf 76. (a) that copyholds 
may be sequestered ; it is true 
they are not extendible at 
common law, or by the stat. 
West. 2. c 18. ; but that is no 
reason why a Court of Equity 
may not do it, which has j9o- 
testatem extraordinariam et 
absobitam. Courts of Equity 
have always had power over 
copyholds, as by the year- 
books appears ; for they can 
compel lords to admit their 

2d. It was long doubted 
whether a Court of Equity 
could sequester after a de- 
cree. The first that was 
granted was in Lord Coven- 
irys time, Sir Thomas Read's 
case, (b) Since that time there 
have been innumerable in- 
stances in Chancery ; Hide v. 
Petty 1666, afiirmed in parlia- 


<4i) Ante, p. S79. (c) 1 Co. in Cha. 91. 185. 

(6) iVbrfJ^, life of Lord Keeper S Fr^m. 1S5. 168. The first 

GuUfordy V. ii. p. 75. decree wsi revened by the 

X 2 Lord^ 



1819. There is no other course of proceeding by which thd 

Franckly J^^^^ °^ ^he case can be administered. The Court 
finding property belonging to the Defendant in the 



In curia scacc. in the case of great consideration, 1 4!thJune, 
Guavas v. Fountain (a), it was 16879 and has ever since been 
granted afler a decree upon used without hesitation. 


Lords, but the directions accom- 
panying the reversal, in effect re- 
serve the benefit of the seques- 
tration to the Plaintiff; if he 
should eventually obtain a final 

SSth November, 1667. "Upon 
hearing of counsel on both parts 
this day at the bar of this house, 
upon the petition of Henry Petit, 
administrator of Thomas Free- 
man, late of London, merchant, 
deceased, against Laurence Hyde, 
complaining of the hard measure 
he the said petitioner hath, by a 
decree made in the Court of 
Chancery, in the year 1661, for 
S93i» 7t, Sd., alleged to be due to 
the said Laurance Hyde, upon 
an account for brimstone, which 
decree is grounded upon a cer- 
tificate of three referees, videli' 
cet, Mr. Reames, Mr. Elcock, and 
Mr. Micoe, all of the said Lau^- 
ranee Hyd^s own naming ; it 
appearing to this Court upon 
the opening of the said cause, 
that whereas at the first, this 
matter in question being mer- 
chants* accounts, it was referred 
by the Court of Chancery, with 
the .consent of both parties, to 

four persons, videlicet, Mr. Row* 
land Elcock, Mr. William Reames, 
Mr. Nicholas Skynner, and Mn 
Daniel Fairfax, or any three of 
them, to hear and finally deter- 
termine the matters in difference 
between the said parties ; but if 
they the said referees could not 
determine the same, then to cer- 
tify to the Court of Chancery 
how they found the same, who 
certifying two and two apart, the 
Court of Chancery could ground 
no order thereon ; and, therefore, 
in appointing a fifth referee, 
named Mr. JMicoe, a person for- 
merly excepted against by the 
petitioner Petit; whereupon it 
being in the power of any three 
to certify, the two referees for- 
merly named by the Defendant, 
Laurance Hyde and Mr. Micoe, 
certified, without any of the pe> 
titioner Pettifs referees joining 
with them ; upon which certifi- 
cate the decree complained of 
was grounded; whereupon the 
estate of the petitioner Pettit, 
as well copyhold as freehold, was 
sequestered, and Laurance Hyde 
put into possession thereof, and 
he committed prisoner to the 




hands of a third person, is competent to order payment 
into the bank ; parties claiming an interest in it, may, 
as in the instance of sequestration of property in posses- 
sion, be examined before the Master pro interesse suo. 
The Court will not require that a bill should be filed ; 
the question may be as well determined under this 





The doubt at the time with 
the Court was on a sequestra- 
tion after a decree, for that 

they said was in the nature of 
an execution, and that at 
common law was not leviable 

Fleet, for not obeying the said 

Upon due consideration had 
of the premises, it is ordered, 
declared, and adjudged by the 
lords spiritual and temporal, in 
parliament assembled, that the 
said decree be reversed and made 
void, and the same is hereby re- 
versed and made void ; and that 
the said Henry Pettit be released 
and discharged of his imprison- 
ment; and the said sequestration 
for not obeying the said decree, 
be taken off and discharged, and 
Henry Pettit put into such pos- 
session thereof as he was in be- 
fore the said sequestration; for 
that the cause of the said com- 
plaint and grievance of the pe- 
titioner did arise from nominat- 
ing the said Mr. Micoe to be a 
referee : and it is hereby further 
ordered, declared, and adjudged, 
that the said cause and proceed- 
ings thereupon, and possession of 
the land of Henry Prf/t/,' shall 
stand in statu quo, and as they 
were before the order of noniin* 
ation of the said Mr. Miivc to 


be a referee; and the Lord 
Keeper of the Great Seal is 
hereby authorised and required 
to proceed in the said cause 
accordingly: and it is hereby 
further ordered and decreed, 
that in case, upon the determin- 
ation of the said cause, a decree 
shall be made on the behalf of 
the said Laurance Hyde^ that the 
lands and estate of the said p^ 
titioner which have been seques- 
tered, shall be liable for satisfac- 
tion thereof, as they should have 
been in case the said decree 
hereby reversed had stood, and 
the sequestration had continued: 
and as to the rest of the peti- 
tioner's complaint, their lord- 
ships do not think fit to proceed 
thereupon, the petitioner having 
a remedy in an ordinary course 
of law, if there shall appear 
cause of relief." — (Lords' Jour- 
nals, xiii. 147.) 

{a) This suit appears to be con- 
nected with the great case of Cook 
V. Fountain^ a note of which will 
be inserted in the appendix to the 
present volume. 
3 tilt 






order. Simmonds v. Lord Kinnard{a\ Opie ▼. Max- 
well, {b) 

(a) 4 Fet, 735. (b) Cit. 4 Fet. 74t. 


till ^^. 2. c. 18. ; and, there- 
fore> though frequent seques- 
trations had been before, yet 
none after a decree; but 
since then it has been the 
constant practice of both 
courts, for otherwise their 
proceedings would be illu- 
sory, if they could not exe- 
cute them. 

The second question is, 
whether the sequestration de-* 
termined by the death of the 
Plaintiff or Defendant ? No 
reason why it should in either 
case, but suppose it should, 
surely it may be revired. 
As to the first I can find no 
precedent one way or the 

As to the second, in 1682, 
per Lord Nottingham^ in the 
case ofBurdet v. Rockby^ a se- 
questration in pursuance of a 
decree, though for a personal 
duty, shall not determine by 
the death of the Defendant. 
1 Vem. 58. Indeed, Norths 
when he was keeper, on a de- 
murrer denied to revive so as 
^ to affect the wife's dower. 
1. Vem. 118., and would not 
declare his opinion whether 
]]e would revive against the 
heir.; and in 1 Vem. 166* Pas- 
chaj 1688, he seemed to be 

of opinion it was not revivable 
against the heir, and would 
see precedents ; so the point 
was not determined. But it 
seems reasonable in this case, 
there should be an injunc- 
tion, and the Court would do 
well to consider and settle the 
point, which may be as well 
done here as elsewhere, with 
less expense and as much au- 

This Ward moved the 
22d February^ and the Court 
granted an injunction as to 
the freehold lands, and gave 
the Defendants leave to pro- 
ceed in ejectment as to the 
copyhold; saying they would 
reserve the determination of 
this point, whether a seques- 
tration may be revived against 
the heir of copyhold lands to 
the hearing of the cause. 
The difficulties that the Court 
was under at this time were, 
1st, they did not know how 
they could put the sequestra- 
tors in possession, f. e, oblige 
the lord to admit them ; 
2dly, if they could, yet they 
could not deprive the lord of 
his fine by descent, heriots, 
&c. on the death of the 

N. B. It seems by tlie in- 




Sir Arthur Piggott and Mr. Blake j Mr. Heald and 1819. 

Mr. Buck^ against the motion. - ^'^ 

If CoLHOvy. 

junction the sequestration as determined by the death of 
to the freehold land was not the Defendant.— *MSS. 


26th February, 1743. (a) 




9e» after 

But bj 


In this case Lord Chan- 
cellor Hardwicke said, that 
although it was new to him 
and the register, whether a 
writ of injunction should fol* 
low a sequestration, and after 
that a writ of assistance, yet 
upon looking into his manu* 
scripts he found a precedent 
of such a thing, and was now 
contented that a writ of assist- 
ance should go; that where 
the possession of land has 
been in the Defendant at the 
time of the decree, and after- 
wards has been changed, and 
possession delivered to a third 
person, in order to avoid or 
frustrate the decree, though 
for a personal demand, yet 
the Court will enforce its 
sequestration, and oblige the 
person in possession to come 
before the Court, and be ex- 
amined pro intereue sua; 
such fraudulent conveyances 

have been made, and if the- 
sequestration was to be 
checked by that, it would 
be an execution of no effect. 
His Lordship made a dis- 
tinction, that if a bill was 
brought for land, and the 
party sells it before decree 
for a valuable consideration^ 
and afterwards Uiere is a de- 
cree for the Plaintiff for the 
same land, the sequestration 
will overreach the purchase, 
though for valuable consider- 
ation,becauseitwasmade upon 
a lis pendens; much more will 
such purchase be overturned 
if made after the decree pro- 
nounced : but if a bill is only 
for a personal demand, and 
the Defendant sells his land 
for valuable consideration 
during the suit, or even after 
the decree pronounced, it will 
be out of the reach of a se- 
questration; but if such pur^ 


CoulsUftt V. Gmrdinerf OHie^jp, S79. 
X 4 







If a sequestration can be made effectual against a 
chose in action^ a point much doubted, it must be by the 
course pursued in Simmonds v. Lord Kintiard^ a bill of 


chase was with intent to avoid 
the decree for the personal 
demand, the sequestration 
shall defeat it. Here is an 
affidavit that this purchase, 
though afler decree, was for 
money; and, therefore, let 
the writ of assistance go 
without charging the posses- 
sion till the purchaser comes 
before the Court to be ex- 
amined pro interesse suo ; 
then it will be seen whether 
the purchase was for money 
and bond fide. MS. 

The bill prayed the per- 
formance of an agreement 
by the Defendant, the mort- 
gagor, to pay to the Plaintiff, 
the assignee of the mortgagee, 
a sum of 340/. for an assign- 
ment of the mortgage ; the 
decree directed that the De- 
fendant should pay 340/. and 
interest, and that the Plaintiff 
should execute a general re- 
lease, and assign the mort- 
gage to the Defendant. 
10th March, 1742. — Reg. 

Lib. 1741. fol. 317. 

A sequestration having 
been issued for non-perform- 
ance of the decree, and the 
Defendant refusing to deliver 
possession of the house mort- 
gaged to the sequestrators, 

on the 18th of February, 
1743, it was ordered, << that 
an injunction do issue against 
the Defendant, J. Littlehales, 
to enjoin the said Defendant 
to cause possession of the 
said house and the premises 
thereunto belonging to be 
delivered to the said seques- 
trators." — Reg. Lib. A. 1742. 
fol. 177. 

26th February, 1743. On 
motion for a writ of assist- 
ance, it being alleged by the 
counsel for the Defendant, 
that he had assigned the 
house and goods there for a 
valuable consideration by 
deed of the 8th of December, 
1 742, to Mr. Hughes, it was 
ordered that Hughes should 
come in to be examined pro 
interesse suoy unless he showed 
cause to the contrary on the 
next seal, and the Defendant 
was within two days to give 
to the Plaintiff notice of the 
place of abode of Hughes.-^ 
Reg. Lib. A. 1742. fol. 187. 

19th March, 1743. On 
affidavit that Hughes could 
not be found to be served 
with the last order, a writ of 
assistance was ordered. -— 
Reg. Lib. A. 1743. fol. 235. 



discoyery. The Court will not decide the conflicting 
claims of strangers on affidavits ; and direct payment into 
ooUrt of the money which they claim, in suits to which 





HAMBLYN v. LEY. {a) 

18th October, 1743. 









In this cause on the 6th Jult/y 
17S8, the plaintifFobtained an 
mrder for the Defendant Le^f 
to pay the sum of 300/. into 
the bank : on the 13th ofjulj/ 
following, Ley being seized of 
itn estate in Devonshire^ by 
lease and release dated the 
•aid ] Sth Jtt/y, reciting that 
the premises were in mort- 
gage for the term of 1000 
years, in consideration of a 
bond given for 600/. tconveyed 
the equity of redemption to 
Rosdae, his nephew, in fee. 
No previous treaty appeared; 
wad.Rosduef by virtue of this 
c^onveyance, entered, receiv- 
ed rent, and paid the interest 
of the mortgage and land 
tax, but refused to pay the 
•poor rates, under pretence 
'that he was not yet in pos- 
aession. On the bond no in- 
terest or principal appeared 
to have been paid ; nor did it 
iq[>pear how the bond was 
conditioned, on what terms 
payable, or any thing in re- 

gard to it, save that it was 
proved that a bond was given. 
On the 9th of December 
following, after the obtaining 
of the first order, and before 
the obtaining the second, 
the Defendant Lei/ being pos- 
sessed of a mortgage term of 
900 years, under an assign- 
ment of some other lands in 
the same county, at a place 
called Svoincomby in consider- 
ation that he stood indebted 
in 1728 to his two sisters, 
Joan and Mary Ley, in the 
sum of 220/., and in consider- 
ation of their undertaking to 
discharge another debt of 
180/. due on bond in 1729, 
and another of 40/. by bond 
in the same year, assigned 
the said mortgage term to 
his sisters; by virtue of which 
they entered, and took up the 
two bonds of 180/. and 40/., 
the first of which they paid 
off, and for the other they 
gave a new bond of their 

{•) 1 IHek. 9<. cit. 4 Fes, 747. Sec Couhton v. Gardiner, a/Ue,p.279. 







they are not parties. The sequestration issues for pajr^ 
ment of a personal debt of Calhoun ; the sum sought td 
be sequestered, is claimed by him as executO|^ to hid 


On the 6th of AprU, 1739, 
a sequestration issued, by 
virtue of which both the 
estates conveyed as above 
were sequestered. Rosdue and 
Joan and Mary Ley came 
in to be examined before the 
vdbaXxx ^0 intereue luo i and 
on the Master's report, excep- 
tions were taken by the Plain- 
tiff, and the first question was, 
whether this conveyance to 
Rosdue could be considered 
as made bond fide^ and for a 
valuable consideration; se- 
condly, whether the convey- 
ance to the examinants, Joan 
and Mary^ was to be' consi- 
dered as fraudulent ? 

And in respect to the first, 
the Lord Chancellor clearly 
held that it was not a hondjide 
sale, as there appeared no 
treaty in the case, no consi- 
deration but a bond, which it 
is odd a man in such dis- 
tressed circumstances as the 
Defendant appears to have 
been in, should part with this 
estate for, as the mortgagee 
was not in possession. Had 
the money been advanced by 
Rosdue by way of mortgage, 
it would not have defeated 
the sequestration, if the col* 

lusion appeared so stroiig aa 
to shew the fraudulent intent 
of Ley, as it is admitted it 
does. The present purchaser 
as his nephew, in point or 
evidence and conscience, is 
equally afiected thereby, since 
in another law such an one ir 
reckoned as conjunct and 
privy to all transactions. 

As to his payment of inte- 
rest of the mortgages and 
taxes, no weight can be laid 
on that, because, supposing 
him to be only a trustee, ft 
was natural to do as much. 
A strong circumstance is, that 
he refused to pay the poor 
rates, under pretence of not 
being in possession, at a time 
when he had in fact the con* 
veyance made to him, and 
had entered into possession. 
Upon the whole he is to be 
considered in no other light 
than that of a trustee; and 
as to the objection that be 
may be liable on account of 
his bond, he may be relieved 
as to that in this court ; and 
what he may have paid for 
interest and taxes, he must 
be allowed again. 

As to the second question, 
it is, whether the commit. 




fiither. A chose in action cannot be taken in execution 
at law, except under an extent at the suit of the crown ; 
and there the sheriff is not authorised to levy the debt 





Bionera have a right to pre- 
sent possession under the 
sequestration against the ex* 
amioantSt/oait and Mary Ley f 
It is not made part of the 
exception to the report, that 
the debt of 22(tf. is in any- 
wise exceptionable; but I 
must inquire into this in the 
same manner on the report, 
as on a bill brought by a 
subsequent purchaser; and, 
therefore, as the parties were 
at liberty to proceed on the 
report without any excep- 
tions, so they may offer any 
proof of this sort now if they 
please. But it is certain, 
that any person foreseeing a 
judgment at common law, or 
a sequestration in this court, 
may give a preference. 

Note, the sequestrators had 
been in possession ever since 
AprU^ 1739» and were so at 
this time ; therefore the re- 
gister was directed to search 
into former orders, given by 
the Court, on reports of the 
Master upon examination of 
the parties pro interesse suo, 
where the sequestrators have 
been in possession. On the 
morrow, the register pro- 
duced two, but neither much 

to the purpose. The direction 
was in the present case as 
follows; therefore, upon the 
Master's report, let it be 're- 
ferred to the Master, to take 
an account of what has been 
paid by Rosdue for interest 
to the mortgagee, and also for 
taxes and repairs ; and to in- 
quire whether he received any 
rents and profits from the pre- 
mises; and ifit shall be found 
that he did, then let what 
he so paid for interest, taxes, 
and repairs, be allowed there- 
out, as far as the same will 
extend; but if the Master 
shall find that he received 
none, or not sufficient to an« 
swer what he so paid for inte- 
rest, &c., then let the com- 
missioners named in the com- 
mission of sequestration re- 
imburse the said Rosdue the 
balance of what shall be found 
to be paid by Rosdue^ out of 
the first profits which shall be 
received by them ; and as to 
the premises mentioned in the 
second exception, comprised 
in the conveyance to Mary 
and Joan Ley^ let the seques- 
trators deliver the possession 
of it to the two sisters, who 
claimed it before the Master, 







found by the jury, but the inquisition is returned to the 
Court of Exchequer, and a scire facias^ or an immediate 
extent is issued against the party indebted to the debtor 


and let the commissioners 
come to an account for the 
rents, &c. of the said estate, 
since the time of their pos* 
session, and pay the balance 
over to the examinants </oan 
and Mary Ley (a) ; and let 
the Plaintiff be at liberty to 
apply to tlie Court touching 
the surplus over and above 
what is justly due on the deed 
of trust mentioned in the 
Master's report. — Reg. Lib. 
A. 1742, fol. 722. 

Note, it appeared, from 
the case of Fossett v. Fother- 
gill{b)y 26th December, 1705, 
where Lord Cowper declared 
the commissioners of seques- 

tration might redeem a mort- 
gage, that this assignment by 
way of security to the two 
sisters, was redeemable by the 
sequestrators ; but had it been 
directed that the exceptant 
should be at liberty to apply 
to the Court, touching the 
redemption of the premises 
conveyed by way of security 
to the two sisters, the sisters 
would not have been able to 
have disposed of the said term 
by way of sale or mortgage ; 
which was agreed, and there- 
fore directed as above. The 
Chancellor would not divide 
the deposit, but let the Plain- 
tiff take it.— MS. 

Under a se- 
for non-pay- 
ment of 
money, the 
may, on a 
motion with 
notice, (not 
on a motion 
of course,) be 
empowered to 
let real estate. 

19th January f 1744. 

A motion of course was 
made for sequestrators to set 
and let. 

The Lord Chancellor. 

I cannot allow this without 
notice to the other side ; for 
though it is a motion of course 
to obtain liberty for a re- 

ceiver to set and let, and now 
most orders are drawn up 
with such express power in 
them, yet the reason of both 
of them is, that he is appoint- 
ed by the Court for the 
management of the estate; 
but sequestrators have but 

a) Walker v. BeUy 2 Madd. 21. {b) Cit. 4 Ves. 747. 

(c) Sec Ray v. — posi, p. .30(5. 




of the crown, (a) In like manner here a bill must be 
filed. The bill of interpleader is dismissed, and no 
order can be made in that suit. ' 

(a) West on Extents, 171. 





precarious or temporary 
powers to levy a debt, and 
the sequestration may be 
taken off to-morrow, or so 
800Q as the demand is dis- 
charged. — MSS. 
. •* Upon opening, &c. it 
was alleged that a commission 
of sequestration having issued 
in this cause, against the De- 
fendant Ann Bealingy who 
was the administrator of 
Richard Sealing^ deceased, 
for non-payment of the sum 
of 235/. Is. Ud. to the Plain- 
tiff, directed to H. B. &c., 
empowering three or two of 
them to sequester the rents 
and profits of the real estate, 
and also the goods and chat- 
^Is and personal estate of the 
said Ann Bealingy until she 
paid the said Plaintiff the 
said 235/. l^. lid, cleared 
her contempt, and the Court 
made other order to the con- 
trary ; that by virtue of the 
said writ, the said sequestra- 
tors have entered upon and 
are in receipt of the rents 

and profits of the real estate 
of the said Ann Bealing, 
which consists of divers mes- 
suages or tenements in or 
near Nexn Street^ Covent Gar* 
den; that some of the tenants 
of the estate in question have 
quitted possession, and others 
have given notice of quitting 
upon the expiration of their 
leases, unless they can come 
to a new agreement ; that in 
regard the sequestrators can- 
not let the said estate with- 
out an order for that pur- 
pose, it was therefore prayed 
that the said sequestrators, 
three or two of them, may be 
at liberty to set and let the 
said estate as there shall be 
occasion, with the approba- 
tion of Mr. Kynaston^ one, 
6cc., which, upon hearing of 
Mr. Green of counsel for Mr. 
H. Tn the mortgagee, and 
upon reading an affidavit of 
notice of this motion, is or- 
dered accordingly, 23d AfflrcA, 
1744.."— Reg. Lib. B. 1744. 
fol. 214.(a) 

(a) So Harvey v. Harvey, 3 Rep. in CJta. 49. 







The Lord Chancellor. 

I lay out of the question the bill of interpleader ; and 
it is quite immaterial whether the proceeding by attach- 



7th Juli/y 1784? 

Sequestrators Mr. Selwun moved that the 
on fMtHc firo> 

ceu will not sequestrators upon mesne pro- 
be ordered to cess might be ordered to make 
make leases, leasesof the premises of which 

they were in possession. 
But the Lord Chancellor 

refused it> and said there 
never was an order for se* 
questrators to let and set as 
receivers. — From Mr. Ro» 
miUj/s notes, Lord Cokhts* 
ter'u MSS. 


ISth Januarif 9 1784. 

A sequestra- 
tion to compel 
answer, may 
be executedt 
but no order 
will be made 
for the tenants 
to attorn till 
the commis- 
sion is re- 

Bill for discovery. Defend- 
ant appeared, but did not put 
in any answer ; Plaintiff went 
on with process of contempt 
till he obtained a sequestra- 
tion. Mitford then (ISth No' 
vemhery 1783,) moved, as a 
motion of course, that the 
tenants of the estate might 
attorn to the sequestrators, 
which the Court granted; but 
when the register was to 
draw up the order, he object- 
ed to it as irregular, under a 
notion that a sequestration to 
compel an answer could not 

be executed, but that the 
Plaintiff must go on with his 
process of contempt, and take 
the bill pro confesso* 

Mitford moved it again this 
day. Lord Chancellor took 
till the next day to consider 
of it. 

Lord Chancellor. — I do not 
see any foundation either in 
the reason of the thing, or in 
the history of the Court, for 
supposing that a sequestra- 
tion to compel an appear- 
ance or answer should not be 
executed. If it were not, the 

(a) See Ntale v. Bealtng^ ante, p. 504. 

(b) f Dick, est. 4 Vet. 738—740. 




ment could, or could not, be enforced. As, during the 
suit of interpleader, if Mr. Bucker bad paid tbe money 
into court, which he ought to have done, and bad sug- 




justice of the Court would be 
in many cases disappointed. 
The bill, it is said, might be 
taken pro coTifesso; but where 
« bill is filed only for a dis- 
covery, as in the present case, 
it is no advantage to take the 
bill pro confesso* So in a bill 
for an account, where the 
decree to be obtained is a 
decree ad eomputanduntf the 
Plaintiff having it in his power 
to take a bill pro confessoj 
u no reason why a seques- 
tration should not be exe« 

Neither does it appear to 
me, in the history of this 
court, or of the exchequer, it 
has ever been looked upon as 
impossible that a sequestra- 
tion on mesne process should 
be carried into execution. In 
Desbroto v. Commie^ which is 
reported Bunb. 272. and 
1 Bam, 212., but best by 
Bunbury^ who was counsel 
in it, it appears that seques- 
tration on mesne process may 
be executed. Upon this first 
point, therefore, I am of opi- 
nion that a sequestration, 
though it issue upon mesne 
process, is capable of being 

This brings me to the 
second question, namely, how 
it shall be executed ? It has 
been compared to the case of 
a receiver appointed by the 
Court ; and upon that idea a 
motion has been made for the 
tenants to attorn, which is a 
special motion; and notice 
ought to have been given to the 
tenants. But there is great dif- 
ference between a sequestra- 
tion, which is a writ of pro- 
cess, and an order for a re- 
ceiver, which is an order of 
the Court. TothiUf 13 El. 

Upon the whole, I think 
the motion cannot be grant- 
ed, as being premature ; the 
commission should have been 
returned before the motion 
was made. The proper course, 
I should think, would be, after 
the commission was returned, 
to give the tenants notice to 
pay. However, the present 
motion cannot be granted till 
the return appears to the 
Court upon record. 

Note, the other cases upon 

sequestrations which were 

cited, are Maynard v. Pom* 

fret^ 3 Atk. 468. Hawkins v. 

Crook, 3 Atk. 594. Butler v. 







gested that it was claimed by more than one party within 
the jurisdiction. of the Court, and also by a person resi- 
dent in a British colony, the Court would not have parted 


Rashfield, 3 Atk. 740. Davis — From Mr. Romillt/a notes. 
V. Davis, 2 Atk. 23. ; see IVil- Lord Colchester's MSS. 
cocks V. WUcocks^ AmbL 421. 

9th December, 1785. 

Order for leave 
to exhibit in- 
to falsify exa- 
mination, pro 
intereue iuo, 
obtained by 
motion of 

Before the Lord Chan- 

An order having been ob- 
tained for the examination of 
certain persons before the 
Master pro interesse suo, it 

was now moved for leave to 
exhibit interrogatories before 
the Master to falsify their ex* 
amination ; and it was so or- 
dered without notice as of 
course. — Mr. Cox's MSS. 

CADELL v. smith. (6) 
6th August, 1791. 

upon a decre- 
tal order, 
have the same 
power to sell 
as on a final 

The case was, an order 
made upon the Defendant 
(on reading his answer) to re- 
place stock ; process of con- 
tempt to sequestration, and 
the sequestrators seized. A 
motion was made to empower 
them to sell. 

The Chancellor at the third 
seal doubted whether this 
could be done, upon what he 
considered as an interlocutory 

But at the fourth seal, 

Richards produced a prece- 
dent, and the Chancellor 
agreed the practice to be, 
that sequestrators on an in- 
terlocutory order had equal 
power to sell ^ upon a final 
decree. — Lord Colchester^M 

On the 19th of November^ 
1670, the House of Lordft 
ordered a reference to thd 
committee of privileges, *• 16 

{a) See Attorney General v. TTIe Mayor of Coventry, post, p.81 1. 
(6) 5 ^10. C.C.36t. 

7 consider 



with the fund until it had secured Backer as well from 
the colonial claim, as from the claims here; so, if seques- 
ttatorSf by bill or otherwise bring the money into 
court, it will be detained until the Court is satisfied that 
the par^ by whom it has been paid cannot be compelled 
to pay it elsewhere. 

The true question is, whether this chose in action, con- 
sidering it either as the whole sum due from Colhoun, or 
only so much as exceeds what is due to Pitmey, can be 





Fund in conrt 
detained, until 
the party by 
whom it has 
been paid is 
asainst all con- 
flicting claims 
to it. 

consider of the proceedings 
in the Court of Chancery, 
upon sequestration of estates^ 
and what law there is to war- 
rant such proceedings, and 
to make report thereof unto 
the House." Lords* Journals, 
xii. S68. On the 18th of 
March following, the Earl of 
Berlt reported that the com- 
mittee had receired some 
precedents of sequestrations 
of estates by the Court of 
Chancery since the 32d year 
of Qpeen Elizabeth^ from the 
registers of that court: <<that 
their lordships had heard the 
judges upon the said prece- 
dents, and received their opi- 
nion thereupon, which is as 
follows: The opinion of the 
judges after mentioned, vidc' 
^^fn^ by ^^y ^e lord chief justio*: of 
the Common Pleas, Justice 
Tirrdy Baron Turner^ Justice 
Archer^ Justice Raynsford, 
Justice Moretorif Justice 
Vol. III. 

Wifld, Baron Littleton^ Baron* 
Wyndhanty in obsenrance of 
the order of their lordships, 
delivered in writing by the 
said chief justice, with con- 
sent of the said other judges. 
They know no positive law 
by statute or otherwise, nor 
any judgment by any court 
of lawy which doth warrant 
the proceeding by sequestra- 
tion of real and personal 
estates for disobeying de- 
crees made in Chancery upon 
process of subpoena; and they 
find, by the opinion of some 
judges in several times in the 
ancient law reports, that there 
was no other remedy for dis* 
obeying such decrees but 
imprisonment of the persons' 
disobeying for the contempt ; 
but they find no full resolu- 
tion by any court of law of 
that point. They conceive 
the Court of Chancery, and 
proceedings therein upon 
Y equitable 






taken by this sequestration ; or whether there must not 
be some proceeduig in aid of the sequestration ? Speak- 
ing with the caution which befits one of a process so 
unusual, I have supposed it to be clear, that where 
there is tangible property, the Court will allow the 
sequestrators to lay their hands on it, whatever claims 
third persons may have, and will compel them to come 
in pro interesse suo; but a chose in action cannot be so 
taken ; and the question arises, how are the rights of 
third persons to be decided ? It is generally done by 

equitable matters, to be very 
ancient ; and that it belongs 
not to the judges in the 
King's courts of law, to de- 
termine whether any decrees 
made in Chancery in mat- 
ters of equity, or the proceed- 
ing in equity in execution of 
such decrees, be unjust, un- 
less such decrees and pro- 
ceedings be contrary to the 
statutes or common law. They 
know not, nor have time to 
examine, what precedents 
may be found concerning all 
the ancient course and cus- 
tom of proceeding in the 
Chancery in matters of 
equity ; but are of opinion, 
that the precedents since 
32d of Elizabeth, delivered 
to them by their lordships to 
consider of, be of so late 
times, that, without other au- 
thority, they alone are not 
sufficient to prove a custom 


of sequestering real and per- 
sonal estates for disobeying 
the decrees of that court." 
— Id. 463. 

On the 23d of Marchj the 
House ordered that the far- 
ther debate of the report of 
the committee should be re- 
sumed on the 30th inst. ; ** at 
which time the judges are to 
be heard to explain the 0[m- 
nion delivered by them to die 
committee for privileges con- 
cerning this business.*' «- Id. 

7th April. Upon consider* 
ation of the report, the com- 
mittee were ordered to con- 
sider further of this business^ 
and the debate had there- 
upon, and report their opi- 
nions what is 6t to be done 
thereupon unto the house. •— > 
Id. 481. 

No account has been found 
of any farther proceedings. 

order ; 



order (a) ; whether it can be done in a case in which 
the third person does not appear, may be another ques- 

Before I decide this case, I will refer to Simmonds v. 
Lord Kifmards in the meantime Sucker must not part 
with the money. 




An order was afterwards made for payment of the 
money into court 

(a) In Chancery. Anon. Jtdy 2dy 1747 « 


"wt . Where a party's personal 
g estate is taken in sequestra- 
yin tioDy and a third person claims 
^^ property in part thereof, the 
^ Master cannot inquire into 

the matter of property, ex- 
cept by an order, (on motion) 
for examining parties and wit- 
nesses on interrogatories.-— 



Mr. CoUmgs had been ex- 
amined before the Master pro 
^Q. nUeresset and by his examin- 
tS aUon made a title to the thing 
^* in question; instead of reply- 
ing, the Plaintifis brought the 
matter before the Court, upon 
the exception to the report; 
and it was insisted for Col" 
£ng$, and ruled, that they 
were concluded by the ex- 

amination, not baring replied 
to it, (as they ought to have 
done, and put him upon the 
proof of it,) as much as if 
they had set down a cause 
upon bill and answer. The 
rule seems to be the same in 
all examinations before a 
Master. — From Mr. Cox's 

(a) I P. W. 306. 

(6) See Bowleg v. Ridley ^ ante, p. JOS. 

Y 2 




June 17. 21. 1 JY a settlement dated 23d October^ 1787| made pre- 
Undwa^nar- viouslyto the marriage of Abraham Brandon and 

riage settle- Abigail Brandon^ (both of the Jewish religion,) recitinjf 
^tote^the ^"^^J^S other things, that Abigail Brandon was, under 
wifewasvested the will of her late mother, entitled to a considerable 
upon trust' to P^^ ^^ ^^1* estate and effects, she assigned the same to 

assign 1000/. Jacob Israel Brandon^ Gabriel Israel Brandon » Raphael 
stock to the ' ' ^ « 

husband, and Brandon^ and Daniel Brandon^ upon trust after the 

wifTshouId solemnization of the marriage, to assign and transfer 
dtie during the 1 000/. 3 per Cait consolidated Bank Annuitiesy for her 
band withour '^^^rriage portion to Abraham Brandon^ and to inve^ 
issue, to trans- the remainder in government securities in their names^ 
of the remain- ^^^ to i^exmxl Abraham Brandon to receive the dividends 

\^wi ?^ A ^^^ ^^ ^^^"^^ ^'^^ ^^ ^'°^ ^"^ Abigail Brandotij and after 

the other to her decease, in case Abraham Brandon should survive 

*^d°^"irV ^^^^ ®"^ ihQTe should be issue of the marriage, in trust 

kio of the wife for the children of the marriage in manner therein men- . 

share^^and tioned ; and in case there should be no issue of the mar- 

the husband riage, in trust to transfer one moiety of the trust stock to 

that if the Abraham BrandoUy surviving her as aforesaid, and to 

wife ^oul^ transfer the other moiety unto the nearest and next of 

time without kin of Abigail Brandon, in equal shares among thenu 

leaving issue 'pi^^ settlement then provided that every other sum of 

to survive her i . t . 

30 davs, he money to which Abigail Brandon then was or should 

Xec month" ^^"^® entitled, should be paid to the trustees upon the * 
after her de- same trusts as the other settled property ; and it con* 
500^ stock to ^ned a covenant on the part of Abraham Brandon, thai 
the trustees, in case Abigail Brandon should die after the marriage^ 
use and pro- i" his life time, without leaving issue to survive her* 

perty of ner 3Q days, Abraham Brandon should within three months 
nearest and ^ t 1 r ^ ^ 

next of kin; after her decease, transfer and pay over 500/. 3 per Cent* 

on the death consolidated Batik Annuities, to the trustees, for the sote 



use and property of the nearest and next of kin of /iW- 1819. 

gail Brandon. "" i-,^N,./ 



The sum to which Abigail Brandon became enlided ^'^^^"o^^- 
under her mother's will, amounted to 2000/. 3 per Cent, of the wife 
amsolidaled Bank Annuities^ . which was transferred by duringhcr"* 
the executors to the trustees of the settlement, who after husband's life, 
the marriage paid 1000/. Consols., part of it, to Abraham was declared 

Brandwiy and retained the remainder in their names ®"^'*®^ *? ,• 
1 ^ , , ^ moiety of the 

upon the trusts of the settlement. In Jidj/, 1 793, Abra-^ trust fund in 

ham Brandon became bankrupt. T^hew^and 

nieces; and 

Sometime after the marriage, a legacy of 1000/. was havingbccome 
bequeathed to Abigail Brandon^ by an uncle, Jacob bwkrupt be- 
Israel Brandon^ and paid by his executors to the trus- of the wife, 
tees, and m vested by them in the purchase of stock upon ^ ""S!^* 

the trusts of the settlement. his moie^ of 

the trust nind, 
without de- 
AbigaU Brandon died in Februari/y 1805, without ducdon of the 

issuer leaving her husband, and Jacob Da Fonseca Bran- J^e'^f h^ 

doUf the Plaintiff, her only brother, surviving her ; she covenant, 

also left several nepbews and nieces, the children of two create a debt 

deceased sisters. proveable 

under bis 


The bill was filed by Jacob Da Fonseca Brandon^ 
against these nephews and nieces, die trustees of the 
settlement, tlie executors of Jacob Israel Brandon^ and 
the assignees of Abraham, stating that according to the 
Jewish law, he was the sole, next, and nearest of kin to 
Abigail Brandon, and claiming in that character to be 
intitled to one moiety of the funds included in the settle- 
ments, and also to the sum of 500/. covenanted ta be 
paid by Abraham Brandon in the event of bis wife dying 
without issue ; the biU prayed that the latter sum might 
be retained out of Abraham Brandon b moiety of the 
trust fund. 

Y S All 






All the parties to the settlement were Jews. The 
Plain tifF produced the evidence of some Babbi, that by 
the Jewish law, on the death of a Jew without issue, 
leaving a brother and the children of deceased sisters, 
the whole of his personal property devolves upon the 
brother, as the next of kin. (a) 

Sir Arthur Piggott, and Mr. SideboUom^ for the Plain- 


The phrase *^ next of kin'' is a definite description, 
denoting the first degree of consanguinity ; to compre- 
hend within it unequal d^ees, would be to confound 
propinquity and representation. The description, 
known to the law long before the statute of distribu- 
tions, occurs in stat. 21 H. 8. c. 5. 5.S., and under the 
provision of that clause, directing the ordinary to grant 
probate to the widow or next of kin of the deceased^ 
representation is not admitted, but die grand&ther is 
entitled after brothers, and in preference to uncles or 
nephews, Blackborough v. Davis, (b) Before the statute 
of distribution (c) no doubt could have been entertained 
on the effect of a gift to the next of kin ; that statute in- 
troduced the title by representation, but neither that nor 
tlie supplemental statute, 1 Jac. 2. c, 1 7., vary the im- 
port of those terms. The decision in JVorthington v. 
Statham {d\ is conclusive in the present case ; the words 
in equal degree, neither extending nor restricting the 
description, next of kin. 

(a) Franks v. Martin, I Eden. Maynt, 684. 1 Sa/A. 58, *25i. 


(6) 12 Mod. 615. 1 P. W, 4r. 
^Uf. temp, UoUy 45« 1 Lord 

Com, 96. 108. 

(c) 22 & 25 Car. 2. c. 10. 

(d) Reported as an anonyinousr 
casc^ 1 Madd, 36. 




The Court resorts to the statute of distribution for 
a construction of general terms of relationship, only 
where the terms are so indefinite, that without that con« 
strucdon the gift would be void ; Thomas v. Hole (a), 
Whithome v. Harris (i), Edger v. Salisbury (c\ Brttnsden 
V. Woolredge {d\ Isaac v. Defner (e), Green v. How- 
ard (/) 



The single authority in support of die Defendant's 
claim, is Phillips v. Garth, {g) But the assertion of 
Justice BuUer^ that the stat 1 Jac. 2. c. 17., has given a 
new sense to the terms next of kin, is manifestly erro- 
neous ; the design of the clause in which those terms 
occur(A), was merely to restrict the remedies provided by 
the former stat. 22 & 23 Car. 2. c, 10., to the persons 
entitled to distribution under that statute, and the terms 
are employed as descriptive of those persons, though not 
strictly next of kin ; the widow of an intestate is, within 
rthe exception of that clause, entitled to distribution ; and 
it is settled that she is not one of her husband's next of 
kin, Garrick \. Lord Camden (i)y Bailey \. Wright, (k) 
The case of Phillips v. Garthj terminated by compro- 
mise; and the doctrine there expressed cannot be 
maintained. Marsh v. Marsh (/), the observations of 
Lord Eldon, in Garrick v. Lord Camden (m), and Smith 
V. Campbell (n) ; a strong authority for the present Plain- 

The express intention of the parties to the settlement, 
was distribution in equal shares ; that intention w&I be 

(a) Ca. temp. Talb, 251. 
(4) 2 Ves. 52t. 

(c) Amb. 70. 

(d) Amb, 507. 

(tf) Amb, 595. 17 Fw. 375. n. 
(/) 1 Bro. C. C. 31. 
(g) 5 Bro. r.C. 64. 

(A) 3, 6. 

(i) 14 r«. 312. 

(k) 1 8 Vci, 49. Ante, v. i. p. 59. 

(/) 1 Bro. C, C. S95. 

(m) 1 4 Vet. 385. 

(n) Coop. 275. 

Y 4 frustrated 


1819. frustrated by the application of the doctrine of repre- 
V^ " '^ sentation, a doctrine not found in the Pentateuch. 


On the second question, the sum of 500/. which the 
husband covenanted to transfer, ought to be retained 
out of his share : had he not become bankrupt, the Court 
would not have compelled the trustees to assign, nor> 
suffered him to possess the fund, without performing his 
covenant. He is a purchaser, and one of the considerations 
is his covenant ; the wife, therefore, as a vendor, is ehti- 
tied to a lien for enforcing that covenant. His assignees 
take his interest, subject to all equities affecting him, and 
subject therefore to this equitable right to satisfaction 
for the non-performance of his obligation, whether in 
the form of lien, or set off, or mutual credit ; a present 
debt payable injuturo may be the subject of set ofl^ 
Jeffs v. Wood (a), Atkinson v. Elliott (i), Ex parte 
Boyle, (c) 

Mr. Shadwellj for the trustees. 

Mr. WethereUj and Mr. Wyatty for the nephews and 
nieces of Abigail Brandon. 


The question must be decided by the law of this 
country, not l^y the Jewish law. The parties were do- 
miciled in England, the contract was made, and the 
property is situated here. The case, therefore, presents 
no conflictus legum ; the lex domicilii j the lex loci cou'- 
tractuSf and the lex loci rei sita, are all the same. The 
law of England is the only law in question. Brodie v. 
Barry (d\ and many other cases. 

(«) s P. W. us. <^c) Coo&c, B. L, sua, 

(*) 7 T. R. 37S id) 1 Ves. ^ Beamcs, 127. 




In the law of England^ the terms next of kin are a 1819. 
technical description of a class ascertained by the sta^ «' " "^ 
tutes of distribution ; the class of civil, as distinguished v. 

from natural kindred, Phillips ▼• Garth. The decision 
in IVorihington v. Statham^ which is supported by Wim* 
Ues V. Pitcher {a\ proceeded solely on the words, ^^ in 
equal degree," which exclude the doctrine of represent- 

Mr. Healdj and Mr. Teed^ for the assignees of Abra^ 
ham Brandon. 

The assignees are entitled to a moiety of the trust 
fimd, and no deduction or proof can be made in respect 
of the bankrupts' covenant. His right to a moiety 
vested immediately on die death of Abigail Brandon : 
his obligation was contingent, and could not become 
absolute until three months after that event. 

The Master of the Rolls. 

On the first question, whether the Plaintifi^ the only 
brother of Abigail Brandon^ is entitled exclusively, or 
whether the nephews and nieces have a right to partici- 
pate, I see no reason for suspending my opinion. The 
terms of the settlement on which the question arises, 
are^ ^^ nearest and next of kin." They occur twice, 
and in the first passage they are followed by the words, 
^^ in equal shares among them." Those words, however, 
afford no assistance in resolving the difficulty, since 
either mode of construction is consistent with a plurality 
of claimants. The question is, whether the property 
belongs to the persons who are next of kin, according 
to the rule and measure established by the statutes of 

(a) 13 Ves. 455. 







distribution, or to those who are next of kin, according 
to a more strict and natural sense ? 

To consider the questicm without reference to autho- 
rities. In the construction of deeds, the first object is. 
to ascertain the meaning of the parties ; and if the words 
are explicit, they must prevail. The words ^^ nearest 
and next of kin," are perfectly exempt from ambiguity, 
and in their general sense unquestionably denote the per- 
sons nearest in proximity of consanguinity. The pre- 
sent contest is between the brother who undoubtedly 
answers that description, and persons a degree more 
remote; audit is to be inquired w;hether the contest ex- 
tends the import of the words next of kin ? Were this 
a new case, the words are sufficiently explicit to decide 
it; the person who without ambiguity answers the de- 
scription, ought not to be excluded by persons not 
within the terms. 

The argument for the nephews and nieces is, that 
though not natural next f kin, they are admitted in 
that character under the statute of distribution. But 
no evidence exists that the paities intended to refer to 
the statute. The statute clearly adverts to two classes, 
next of kin in equal degree, and next of kin by right 
of representation ; not confounding, but expressly distin- 
guishing them. It is true that the phrase next of kin has 
long acquired a technical sense ; and that on a reference 
to the Master to inquire who are the next of kin of an 
individual deceased, it is unnecessary to add a direction 
for including those who claim by representation ; and if 
the import of words has been fixed by a technical rule, 
that rule should not be infringed. The question there- 
fore is, have the authorities established a rule on this 
subject ? 



The case of PhiUijfs v. Garth (o), is direcdy in point; 1819. 
and if that case had been followed, I should have been J ^^^^J 
unwilling to contradict it. But it appears that the doc- v. 

trine of Justice Btdler was not approved by Lord TTitir- *aw'>^- 
krtVf and the case ended in a compromise* In Garrick 
V. Lord Camden {h\ the present Lord Chancellor de- 
clared that he had always entertained doubts on the 
doctrine there expressed ; and in Smith v. Campbell {c\ 
the late Master of the Rolls, putting tlie very case now 
before the Court, adds, that he should have decided in 
favour of the brother. That opinion was uttered after a 
review of all the authorities, and affords the third in- 
stance of a judicial disapprobation of the doctrine of 
Justice Btdler. 

In many cases indeed, the Court has construed the The word 
word ** relations," in a will by reference to the statute construedby 

of distribution ; as in Thomas v. Hole ld\ Green v. reference to 

the statute of 
Howard (tf), Widmore v. Woodrqffe {f\ Whithome v. distrilmtioo. 

Harris {g\ Isaac v. Defrier (A) ; and in Edge v. Salis^ 

bwy{i)f the words ** nearest relations," received the 

same construction. But it has been properly observed, 

that this rule of construction is founded in convenience 

(a) 3 Bro. C. C, 64. Roach v. Hammond, Pree, m Cha, 

(^) 14 Fes, 385. 401. Attorney General \. Buck" 

(c) Coop, 275. land, cited Amd, 71. 1 Vcs. 231. 

(d) Ca. Temp, Talb. 251. Harding v. Glyn, 1 Alk. 469. 

(e) 1 Bro, C. C. 31. Bennett v. Honeywood, Amb, 708. 
{/) Amb, 636. Supple ▼. Lowson, Amb, 789. 
[g) 2 Vet, 527. Rayner y, Mowbray, 3 Bro, C,C. 
(A) Amb. 595, 17 K«. 373. n. 254. Stamp \, Cooke, 1 Cox,234. 
(t) Amb, 70. See in addition Masters v. Hooper, 4 Bro, C. C, 

to the casei cited, Carr v. Bed' 207. Hands ?. Hands, I T, R, 

ford, 2 Rep, in Cha, 77. Gr^th 437. n. Devisme v. MelUsh, 5 Fes. 

V. Jones, 3 kep, in Cha, 179. 529. Mahon v. Savage, i Schoales 

2 Freem, 9^, Jones v. Bealc, ^ Lefr, 111. Popey, WhUcombe, 

2 Fern. 381. Anon, I P, W, 327, 3 ilfm 6S9. 

alone ; 







alone; the Court being compelled to reduce words, in 
their natural sense indefinite, to some practical meaning* 


The following case is imperfectly reported, Amb. 397* 


la Chancery. 8th— 10th Aprily 1761. 

Under a de- 
vise to the de- 
scendants of 
F. L, in a cer- 
tain district, 
and great 

Edward Inccy by his will 
dated in 1754» devised bis 
estate at Chilton Parky in 
BuckinghatmhireyWorth about 
2501. per annuniy to A. for life, 
and then to B. for life, and 
after their several deceases, 
he gave and devised the said 
' estate to the descendants of 
his uncle, Francis Inccy now 
living in or about Seven OakSf 
in Kenty or hereafter living 
any where else, to be sold, and 
the money equally between 
them, share and share alike; 
and in anotlier part of his will, 
among other pecuniary lega- 
cies, he bequeathed 4000/. to 
be equally divided among the 
descendants of his uncle, 
Francis Ince, &c., exactly 
as in the former bequest. It 
appeared by proof in the 
cause, that the testator had 
desired one Mr. Burroughs^ 
a clergyman, to go into KenU 
and inquire what relations 
the testator had there, the 
testator having kept up little 
or no correspondence witli 

them ; and that Mr» B* drew 
out a pedigree of all the de- 
scendants from the testator's 
uncle, Francis Ince, who were 
living at the time he made the 
inquiry, and that such pedi- 
gree was in the testator's cut- 
tody at his death. It appear- 
ed, likewise, that at the time 
of makmg the will, there was 
one of the three daughters of 
the said Francis Ince Kidiig, 
who was the only person then 
living of the first line, but 
that she died before the tes- 
tator ; that there were several 
children of her, and of each 
of her sisters living at that 
time, who were grandchildren 
of Francis Ince, and formed 
the second line; that there 
were several of those children 
who at that time had children^ 
which were the great grand- 
children of the said Francis 
Inccy and formed the third 
line ; as many of' whom as 
were living, when Mr. B» 
made his inquiry and drew 
out the pedigree, were named 



The word ** family" lias for the same reason received 
the like construction (a), and with a like exception of the 
husband and wife, and therefore not precisely conform- 
able to the provisions of the statute. 

(a) Cruwys v. Colman^ 9 Vet, 519. 




in it, but one of such great 
grandchildren happened to 
be bom after drawing out the 
pedigree, but before the date 
of the will ; that there was one 
great great grandchild who 
stood upon the fourth line, 
but that she was born after 
the date of the will, though 
before the death of the tes- 
tator, and before his signing 
two codicils which were 
written in his own hand, and 
dachMred to be part of his will, 
and were made only to in- 
crease some l^acies be had 
given by his will. 

The bill was brought by the 
third line, the great grand- 
children of Francis Ince^ 
against the executors and 
trustees, and against the 
second line, the grand- 
children, and the fourth Iine» 
the great great grandchild, 
insisting that the Plainti£& 
were entitled as descendants 
of Francis Inccy living at the 
time of making the testator 
Edward Ince^B will, equally 
with the grandchildren of the 
second line; and insisting 

that the great great grand- 
child was entitled to no 
share, as she was not born 
till after the date of the will. 
The Defendants set up dif- 
ferent claims in exclusion of 
each other, but all the grand- 
children agreed in this, that 
neither the Plaintifli, the great 
grandchildren, nor Defend- 
ant, the great great grand- 
child, were entitled to any 
part. The Defendant, the 
great great grandchild, in- 
sisted that she was entitled 
as descendant of Francis 
Inccy living at the death of 
the testator, though not born 
at the time of making the 
will; and it was urged that 
the codicil, which was exe- 
cuted after her birth, being 
declared to be a part of the 
will, tills amounted to a re- 
publication of the will, and 
so she was at that time a de- 
scendant of Francis Inccp 
then living. It appeared that 
some of the Plaintiffii lived 
15 miles from Seven Oaks^ 
others 10, and tliat all the 
rest lived in the town of 









o ^Oafe« 5^. A at too 

X£ the 


'^ or about^- ^^ ^^e 

ao^ ^^'S 'tup 











«- 'Sl^^y 






it tVie gf 

el* «^*r- ioto 


\et *' 


ic»tio» ^^aa»t» •* 




oC tbl» 

lodepet^^r^ ^^^e H^^ 



** *Ietstoo4 |^^>.efore. 


«*^'" \\« evidence' v*" 


stood to ^-^ desceoj*^ 
4- a«* AWided 






gift to ^^ nearest surviving relations,*' in favour of bro- 
thers and sisters, to the exclusion of nephews and nieces. 
The words of the present instrument are at least equally 






tween them, Simul et Semel^ 
and not separately, there it 
comprehends all. Consider 
it, first, if it had been descend- 
ants generally, second, as it is, 
in the present case, to de- 
scendants living in or about 
Seven Oaks. 

1st, There is a wide differ- 
ence between the word '' rela- 
tions," which h genus general* 
istimumf and comprehends 
ancestors; secondly, descend- 
ants ; and thirdly, collaterals ; 
mad the word ** descendants," 
whichindudes only thesecond 
.and the third ; and, therefore, 
in the cases cited, where the 
courts have restrained it to 
the next of kin, or those who 
would be entitled under the 
statute of distributions, it has 
been where it was to relations 
generally, which is a term of 
such unbounded latitude, that 
the courts have been obliged 
to introduce this rule in order 
to effectuate the bequest, 
which would otherwise be 
void, as it would be impossi- 
ble to find out all a man's re- 
lations; and, therefore, the 
rule being introduced from 

necessity, ut res magis wileat 
guampereatf it applies to none 
but like cases ; therefore, 
where the word relations has 
been qualified by restraining 
it to particular objects, as my 
poor relations, it has extend- 
ed to all that were poor, 
though they stood in different 

The word descendants, is 
itself restrictive enough to 
prevent the inconvenience 
which the general term rela- 
tions might occasion. The de- 
scendants of a man may in 
most cases be easily traced ; 
but here it is descendants 
living at a particular place, 
which is still more restrained, 
and cannot leave the execu- 
tor in any doubt, or put him 
under any difficulty to trace 
them. The cases cited, Coun- 
den V. Clarke (a), and Chap" 
man's case (b), and the doc- 
trine in Co. Lit. 10 b. are all 
governed by the same prin- 
ciple, that where the devise 
of land is to a man's heirs or 
family, &c. there it shall go 
to the heir, because otherwise 
void for uncertainty ; but if it 

(a) Hob. 39. 

ih) J^r,S3Z. 







The case of 
PhiiSps Y. 
Gmrih^ over- 

definite. Thq same conclusion is supported by WinMes 
V. Pitcher (a), and Worthington v. Statham. (i) 

On the first question,.! am therefore of opinion, that 
the words of the settlement are too explicit and definite 
to require or admit for their construction reference to 
the statute, and that the weight of authority is against 
the doctrine of Phillips v. Garth. The Plainti£P is there- 
fore exclusively entitled to a moiety of the trust fund. 

The second question I shall not decide without fiir« 
ther consideration, and reference to authorities. 

yWy 14. The Master of the Rolls. 

On the first question in this case,! retain the opinion 
which I have expressed, that the Plaintiff is exclusively 
entitled under die words ^' nearest an^ next of kin."^ 
The quesdon here arises not on an intestacy, but on die 
construction of a deed ; even in a case of intestacy the sta- 
tute of distribution would afford a rule, since it has beon 
expressly enacted that that statute shall not extend to the 

(a) 18 Vet.^Zl. 

{b) 1 Madd. 36. 

had fieen to the nearest rela- 
tions equally to be divided, a 
brother and sister, I should 
think, they being in equal 
degree, would both take. 

As to the objection that 
this construction will split the 
estate into so many shares, 
that they will be frittered to 
almost nothing, that can have 
no weight, as the testator does 
not iq[>pear to have had a pre- 
lection for any particular 

persons. Besides firom what 
appears of the circumstances 
of the family, the shares will 
be very considerable to per- 
sons in their low situations. 

As to the fourth line, the 
great great grandchild, she 
appears to have bc^en bon( 
out of due time; therefore 
decree to the second and 
third line in equal 17tl| 
shares. — AfSS. . 


estates of femes covert (a) ; and in the division of this 
property of a feme covert, the Court therefore could 
not resort to the statute as a guide. 

The next question which involves more difficulty, iS) 
whether the trustees, or the Plaintiff as their ceslui que 
trusty are entitled to deduct die sum of 500/. stock due 
from Abraham Brandon under his covenant, from his 
moiety of the trust fund ? 

In the event of Abigail Brandon^ death during the 
life of her husband without issue, which occurred in 
February^ 1815, the settlement directs the trustees to 
transfer a moiety of the trust fund to Abraham Brandon g 
and he, having received 1000/. on the marriage, cove- 
nanted on the same event of the death of Abigail Bran* 
don in the circumstances mentioned, to transfer to the 
same trustees 500/. stock, in trust for her next of kin. 
Abraham Brandon having become bankrupt in 1 793, his 
assignees now claim his moiety of the trust fund ; while 
on the other hand, the Plaintiff and the trustees insist 
that they are entitled to deduct from that moiety the sum 
of 500/. stock, either on the principle of mutual debt and 
credit, or of lien, or as having an equitable right to pre- 
vent his assignees receiving all that was due to him under 
ihe setdement, undl they have paid all which, by the 
aame deed, became due from him. • 

The interest of the bankrupt in the property was at 
the dme of the bankruptcy contingent, and not reduced 
to certainty until 22 years after that event, by the death 
of his wife ; but that contingent interest, such as it was, 
and all the bankrupts right and possibility, was on the 
bankruptcy transferred to his assignees; they became 






(a) 29 Car. 2. c.3. 4. tS. 

Vou III. 






eventually entitled to it as their absolute property, and 
the trustees became trustees for them. The fund thus 
acquired was derived, not from the next of kin o( Abigail 
Brandon^ but from herself, as a part of her estate pur- 
chased by the marriage. On the other hand, the debt 
claimed by the trustees is due solely on the personal 
covenant of Abraham Brandon^ and in no other manoet 
secured. It was, therefore, on his part, substantially tt 
contract with his wife be&re marriage, in consideratioa 
of the marriage and the property derived under it, to 
pay the sum of 500/. stock in a specified event. 

The first question is, whether the debt created by thia 
covenant, was provable under the commission against 
Abraham Brandon ? Clearly not. The debt had no 
existence at the date of the bankruptcy; it was tbts 
matter of contingency whether any debt would ever 
arise. Is it then a debt which can be set off under th* 
statute (a) ? I am of opinion, that it is not. In order 
to be within tlie operation of that statute, the debt mml 
not be contingent ; it must be a debt subsisting at tbe 
time of the bankruptcy. Here no debt existed imtil 
more than 20 years after that event. This is not a 
of mutual debt and credit; here is no credit in any 
of that term, nor any mutual debt between the 
parties. The trust fund, a moiety of which was giv«ti 
to the husband, moved from the wife ; there is no moCiMl 
debt or credit with her; but her nominee or nextof kin^ 
who made no advance and entered into no contract, was 
eventually to become entided to the sum in question. - 

Is there then any equity for charging this debt apon 
the fund? I think not. No one is liable to pay this 
debt but the bankrupt. It is his debt, arising since his 

(«) S Geo, 2. r. JO. i. J«. 



bankruptcy, and not provable under his commission. 
There is no ground for charging his debt on a fund be^ 
longing to others. The trust fund is vested in his assig- 
nees, and they are not, by any statute or equity, subject 
to the payment of this sum. 

If there is any injustice in the case, it arises from the 
omission in the settlement to create a lien on the fund 
fi>r this contingent debt, but no lien can be here raised 
by implication, nor is there any equity for charging the 
property of others with the debt of the bankrupt. To 
set off one against the other, would be to confound dis- 
tinct rights. 

For these reasons I am of opinion that the claims 
cannot be blended. The sum due from Abiaham Bran* 
don^ can neither be proved under his commission, nor 
deducted fn»n the sum due to his assignees under the 






** His honor doth declare that the Plaintiff, as the 
sole next of kin of Abigail Brandon^ deceased, is, under 
the settlement and will above mentioned, entitled to one 
moiety of the said several fiinds, and the accumulation^ 
thereof since the decease of the said Abigail Brandon^ 
uitil the transfer; and that the Defendant, Abraham 
Brandon^ having become entitled in like manner to the 
other moiety thereof, the Defendants his assignees are 
entitled to such moiety ; and it is ordered that it be re- 
ferred to Mr. Stephen one, &c. to tax, as between soli* 
citor and client, all parties their costs of this suit," Sec 
~Rqr, Lib. B. 1818. fol. 2052-2054.. 

Z 2 




July 3. 4. 88. 

Under a will 
directing the 
transfer of 
stock among 
ail the chil- 
dren of the 
daughter, ex- 
cept an eldest 
son ; a second 
son having 
become the 
eldest living 
by the death 
of his elder 
brother, who 
survived the 
testatrix, is 
not entitled 
to a share, 
althoush an 
estate limited 
to his elder 
brother, did 
not descend 
to him. 


^ISTN MATTHEWS, by her will, dated the Slst 
Jtdy, 1801, among other things gave to trustees, 
all the bank stock of which she should be possessed at 
the time of her decease, in trust to pay. the dividends 
to the separate use of her daughter Mary, the wife of 
John Paid Paul, for her life ; and after her decease, to 
John Paul Paid for his life; and after his decease, 
^^ upon trust that they, the said trustees, do, and shall 
assign and transfer all such stock unto, and among all 
and every the children of my said daughter, if more 
than one (except an eldest son) equally, share and share 
alike; and if but one, then the whole to such one or 
only child ; the same to be vested interests and trans- 
ferrable at their, his, or her ages or age of twenty-one 
years ; and in the mean time, and uqtil such children or 
child shall attain such age, from time to time to invest 
and improve their respective share or shares of the 
dividends of such stock for such children or child's 
future benefit and advantage; and in case any such 
children or child shall die under the said age, leaving 
any children or child lawfully begotten, then the shares 
or share of every such child so dying to go unto or 
among such their, his, or her children in like manner 
as above mentioned ; otherwise to go to the survivors 
or survivor of the children of my said daughter, and to 
be transferable in like manner as their original share 
thereof; and in case my said daughter shall leave no 
children or child at her decease, or leaving such, they 
shall all die under the -said age of twenty-one years 
without children as aforesaid, then upon trust that they, 
the said trustees do, and shall assign and transfer all 

14 such 



such stock unto such person and persons, and for such 1819. 
uses, &c. as she, ray said daughter, (notwithstanding any 
coverture) by any deed, &a shall give, direct, limit, or 
appoint the same ; and in default of such gift, direction, 
&C. then in trust to assign and transfer the same unto 
my aforesaid nephew, Walter MatthevoSf his executors, 
&a for his and their own use" 

The testatrix then gave to the same trustees, all the 
share and interest she should have at the time of her 
decease in the 5 per cent, hank annuities, 1797, (com- 
monly called Loyalty,) and in the imperial terminable 
annuities ; ^* In trust to stand possessed of all such an- 
nuities, and to receive the dividends or interest thereof 
from time to time as the same shall become due and 
payable ; and thereupon to lay out and invest the same 
in the purchase of 5 per cent, annuities, 1797, or such 
other stocks or funds as they shall think fit, being 
government security, in their names, and so in like 
manner from time to time, to lay out and invest all the 
dividends or interests to be received thereon ; so as all 
such stocks or funds do thereby accumulate until the 
expiration of the term for payment of the imperial an- 
nuities ; and thereupon to assign and transfer all such 
stocks or funds, as well original as accumulated, unto 
and among all and every the children of my said daugh- 
ter, if more than one, (except an eldest son,) equally, 
share and share alike; and if but one, then the whole 
to such one or only child, the same to be vested interests 
and transferable, and the dividends or interest thereof 
applied at such time or times, and in such mamier, and 
with the like power of appointment by my said daughter, 
as is hereinbefore mentioned and directed of and con- 
cerning the bank stock hereinbefore given in trust for 
the benefit of the children of my said daughter; and in 
defiiult of my said daughter making any such gift, di- 

Z 3 rection, 


1819« rection, limitation, or appointment thereof in trust to 
assign and transfer the same unto my said nepheWy 
Walter Matthews^ his executors, &c. to and for his, and 
their own use." 

The testatrix made three codicils to her will, by the 
second of which, dated the 9th of March, 1802, she 
devised to the same trustees, the fee simple of certain 
estates upon trust, for the separate use of her daughter 
Mary Paid, for her life ; and after her Vlecease, ** upon 
trust to stand possessed, as well of the said estate and 
premises, as also of the rents and profits thereof in the 
meantime, to and for the use, benefit, and behoof of 
Walter Matthews Paid, second son of my said daughter 
Mary Paul, his heirs and assigns for ever, and to con- 
vey the same to him upon his attaining the age of 
twenty-one years; but if my said grandson, Walter 
Matthews Paid, should happen to die before he attains 
the said age, then my said trustees are also to stand 
possessed thereof, in trust to, and for all and every other 
the children of my said daughter who shall live to attain 
the age of twenty-one years, if more than one, (except 
an eldest son,) their heirs and assigns, share and share 
alike, as tenants in common, and not as joint-tenants • 
and if there should be but one child, then in trust for 
such one only child, his or her heirs and assigns for 
ever, and to convey the same to them, him, or heir 
accordingly; aJad in case my said daughter should leave 
no children or child living at her decease, or leaving 
such, they should all die under the said age of twenty- 
one years, then upon this further trust, and it shall be 
lawful for my said daughter, notwithstanding her cover- 
ture, by any deed or writing, &c. or by her last will, &c. 
to give the same estate or any part thereof, unto sudi 
person, &c. ; and in default of such gift, &c. to stand 



posseised thereof for the sole use and benefit of uoy said 1819« 

dauirfater, her heirs and assiims for ever. ^, - *' 

^^ ^ Matthews 


By the third codicil, dated SOth June^ 1 804*, reciting ^^^^ 
that, since the making of her will, she had become pos- 
sessed of a share in the 5 per cent, bank annuities, com- 
monly called Navy annuities, the testatrix bequeathed 
to the same trustees the share which she then had in 
the said 5 per cent, annuities, and such other share a« 
she should have in them at the time of her decease^ 
upon the same trusts as were declared in her will of 
the Bper cent, bank annuities, called Loyalty, and the 
Imperial terminable annuities. 

The testatrix died in December^ 1805, being possessed 
of 7000/. bank stock, 500/. imperial annuities, and 4300/. 
5 per cenL navy annuities, but not of any stock in the 
Sper cent, bank annuities, 1 797. 

J(An Paul Paulj and Mary his wife, survived the 

.testatrix, and had at the time of her death two sons and 

. -i 

three daughters living, Mary Paul, John Patdj Walter 
Matthews Paulf Ann Paul, and Harriot Paul. John 
Paul the eldest son died in October 1817, having at- 
tained the age of twenty-one years. Walter Matthem 
Pau2 attained that age in February 1818. Mary Pati^ 
who was the eldest child, had also attained that age^ and 
was married to M. B. Napier, and by a settlement made 
subsequent to her marriage, her interest in the funds 
bequeathed by the testatrix was assigned to trustees 
upon certain trusts for the benefit of herself and her 
husband, and their children. 

The trustees, under the will, from time to time in- 
vested the dividends which became due upon the imperial 
annuities in the purchase of Sper cent, annuities, and 

Z 4 the 


1819. the time for the payment of the imperial annuities 
having arrived ia 1819, a bill was filed by them against 
JValier Matthews Paul^ Mr. and Mrs. Napier^ their 
children, and the trustees of their settlement, and Ann 
Paul and Harriot Paul^ for the purpose of having the 
rights in the several funds ascertained. 

. John Paulj the eldest son, was tenant in tail of a con- 
siderable estate, which, on his death, did not descend 
to his brother Walter Matthews Pau/^ but was devised 
by him, after suffering a recovery, to his father. . 

Mr. Agar and Mr. Eose for the Defendant W^ M* 

The Defendant is not an eldest, but by the death 
of his elder brother has become an only, son. In 
construing the words elder and younger, the Court has 
proceeded on the principle, that all are to be considered 
as younger children except tlie son who actually takes 
the family estate and becomes the head of the &mily. 
Duke v. Doidge (a), Lm^d Teynham v. Webb. (J) It is for 
this reason that an eldest daughter is permitted to take 
BA a younger child, Beale v. Beale (c), Heneage v. Him^ 
loke. {d) A younger son can incur no forfeiture of 


his rights in that character under a settlement, by 
the mere death of an elder brother, unless the 
estate, the title to which alone excluded the elder fii*om 
the benefits conferred on the other children, descends 
to the younger son. Nor is even the rule so limited 
applicable to provisions made by any one not a parent 
or in loco parentis^ Hall v. Hewer, (e) The bequest 
here is by a grandmotlier in the life of the father.. 

(«) 2 Fe*. 203. (d) 2 Atk, 456. 

(i) /rf.lSS. (r) Amb,20Z, 10 Vet \74. 




The shares to which the children were entitled have 
vested at the death of the testatrix, the time of payment 
not being annexed to the substance of the gift. Monk'" 
heme V. Holme, (a) At least they must have vested 
when the eldest daughter attained twentyrone in the 
lifetime of John Paul. The share of Walter Matthews 
Paid was therefore vested in him prior to the death of 
his brother, and could not by that event be devested. 
Graham v. Lord Londonderry {b\ Driver v. Frank, {c) 
In Trqffbrd v. Ashton {d\ a second son was allowed to 
take, although not born till after the death of the 


Mr. Wilbrahamj Mr. Harty and Mr. fVilliams, for the 
other Defendants. 

Most of the former cases have applied to persons 
who, at the time of executing the will, were not in esse, 
and who therefore could only be described generally. 
Here all the children were alive at the time the te&- 
tatrix made her will, and if she had meant to exclude 
the eldest son John in particular, she would have named 
him as she has named Walter in the codicil, or have 
called him the eldest son. She has, on the contrary, 
used the expression, ^^ an eldest son ;" i. e. any eldest 
son, or the son who at the time of distribution shall be 
eldest. It is a description which, till that time, is un- 
certain and fluctuating. 

When the elder brother died, the time of division 
was not arrived, and Walter was then under age ; his 
share therefore could not have been vested, and when 
he attained twenty-one he was the eldest. But the time 
of vesting is not very material ; for the principle is, that 
he who claims as younger son, must sustain that cha- 

(«) 1 Bro. C. C. 299. 

(6) Cited s Fct. 191^. 

(c) 3 M.4rS. 25. 

id) 2VcrH.9eo. 






racter when he applies for payment. In Ijord Tvfnn 
ham V. Wehh^ Lord Hardwicke^s attention was called to 
the time of vesting ; he would not say it did not vest, 
but took the middle course of considering a condition of 
continuing a younger son to be annexed to the gift. 
The same rule was acted on in Ckadwick v. Doieman (tf) 
and Savage v. Carroll, {b) 

The Master of the Rolls. 

The cases where this rule has been adopted have 
arisen on gifts by parents, or persons in loco pareniis* 
In general, the estate passing to the eldest son has 
been in the power of the persons making the pro- 
vision for the younger children, and the same instru- 
ment has comprised the estate and the provision. Has 
the rule ever been applied to portions given by a stranger, 
who merely contemplated the chance of property de- 
scending to the eldest son, as representative of the 
family ? 

Argument for the Defendants resumed. 

It is difficult to define exacdy what is meant by stand- 
ing in hco parentis. In Teynham v. Welb^ the appoint- 
nient was made by a grandmother, and Lord Hardwicke 
said he should construe it as if it had been in a mar- 
riage settlement. 

The cases of Godfrey v. Davis {c\ Lady Lincoln v. 
Pelhant {d\ B&wles v. Bmles {e\ Radcliffe v. Buckley {f\ 
Cook V. Arnham ( g\ are authorities in favour of the 
younger children. 

(a) 2 Vcm. 528. 

(b) 1 Bailor Beat. 26 5. 
(e) 6 Ves. 43. 

{i) 10 regies. 

(O 10 Vet. 177. 
(/) /(/.1 95. 
Ig) 3 jP. W. 285. 



Mr. Whitmark for the trustees. 


The Mast£r of the Rolls. 

The questions in this case arise on the claim made 
by the Defendant Walter Matthews Patdy to a fourth- 
part of the funds, which pass by the will, insisting that 
though he is now become the only son, and may there- 
fore be said to be the eldest, yet that as he was at the 
date of the will, and at the death of the testatrix, the 
second son, he is entitled to a share as a younger child. 
On the other side, it is contended that he is excluded, 
by the fact of having become, whatever he might once 
have been, the eldest son. 

The fund which the Court is now required to distri- 
bute consists of the Imperial Annuities, and the 5 per 
cent. Stock, belonging to the testatrix ; the latter dis- 
posed of by the codicil; the former by the will. They 
are to be transferred at the expiration of the term for 
payment of the Imperial Annuities, which occurred in 
Jlfoylast; and by the express declaration of ^ the wiD, 
the fund was then to be transferred to all the children of 
Mary Paul, except an eldest son. There is therefore 
an express exclusion of any person sustaining the cha- 
ractffc of an eldest son ; and the trustees are forbid to 
assign any part to him. It is observable that the dis- 
tribution of the property is to be effected at a future 
time ; part at the death of the survivor of the father and 
mother, and part at the termination of the annuities, 
about eighteen years from the date of the will. There 
is thus a prospective direction to divide the property 
among the children, with an express exclusion of an 
eldest son. 





1819. ^ The only fact then requisite to be ascertained for the 

true construction of the will, is the period at whicii the 
phrase ^' an eldest son" is to be applied to tliis family 
— a phrase capable of a change in its application by 
circumstances ; and the individuals to take or to be ex- 
cluded being identified, not by name, but by character. 
The persons to take are the children of tiie daughter ; 
the person to be excluded, is he who bears the character 
of an eldest son. The single question, at what period 
is that character to be ascertained ? 

For that purpose three difierent times may be pro- 
posed; the date of the will, the death of the testa- 
trix, and the time when the fund is directed to be 
distributed. Without adverting to the numerous cases 
that have been cited, all which I have read, a few clear 
principles deducible from them will enable the Court 
to resolve this case; the fact being indisputable that 
Walter Matthews Paul, though now the eldest son, was 
not always such. 

First, on principle, is the phrase to be applied only 
to the person who was eldest son at the date of the 
will? If so, it was personal to that individual. The 
testatrix was conversant with the state of the &mily ; in 
one codicil, she makes a gift to Walter Matthews Paul 
nominatiniy as the second son, and must have known* 
therefore, that he had an elder brother living; i^ber 
intention was for any reason to exclude that elder bro- 
ther John personally, there was no difficulty in identify- 
ing him by name ; far from that, the testatrix has not 
even used the words ^' the eldest son," which might 
have been more descriptive of an individual then in her 
view, but purposely adopts an expression of indeter- 
minate meaning, ^* an eldest son.'' The expression is 
several times repeated, and seems anxiously to mark an 



intention to exclude, not a particular individual, but 1819* 
any individual who sustains a particular character. In 
the same manner, she describes the children of her 
daughter, not by name, but by character ; their father 
and mother being then living, and the distribution of 
the fund being postponed till after their death in one 
case, and till the expiration of eighteen years in the 
other, it was impossible that she could fail to advert to 
a variety of events which might change the number of 
the children, and the relation of younger and elder 
among them. The anxious adoption of this indefinite 
expression, ^^ an eldest son," shews that she referred, 
not to an individual, but to a character, and to any one 
who sustains it. It is impossible, therefore, to say that 
the words are not in their nature future, or that she 
meant to confine the terms of exclusion to the eldest 
son at the date of the will. In the same codicil, which 
describes Walter Matthews Paul as the second son, she 
disposes of the property in case of his dying before 
twenty-one, to the children of her daughter, except an 
eldest son ; this disposition expressly refers to the event 
of bis death ; and it is evident therefore that the testatrix 
contemplated a future state of circumstances, and did 
not limit her expressions to the present state of the 
family. On no principle can the terms be confined to 
the date of the wiU. The fund being distributable at a 
future time, on general reasoning, every child coming 
into«existence before the period of distribution would 
be entitled ; to that period, and not to the date of the 
will, must be applied the words entitling those who 
take ; to the same period must be applied the terms of 
exclusion. Both classes of expressions refer to foture 

The second period proposed is the death of the tes^ 
tatrix; and it is contended, on the part of the Defendant 



JIB19^ Walier Matthews Paul, that at that time the property vest- 
ed in interest, though not in enjoyment, in all the children 
except the eldest son ; and that Walter Matthews Paulf 
not being then the eldest son, was not excluded, but 
his share vested, and was not subject to be devested. 
This question depends on the construction of the words 
in the latter clause, declaring that the interests given to 
the children shall be vested interests, and transferable 
at twenty-one. One construction proposed is to dis- 
tinguish the clause which declares the interests vested, 
from that which directs that they shall be transferable. 
The other construction considers them as one sentence. 
It is necessary to examine the context, for determining 
whether the age of twenty-one years is to be applied to 
both the antecedent parts, or only to the transfer. It 
has been said, it was the intention of the testatrix that 
all the children should take vested interests at her 
d^th, and that the shares of any dying after that event 
were transmissible to their representatives ; but such a 
construction is directly contradictory to that clause of 
the will which directs that the shares of children dying 
under twenty-one, shall go to their children, if they 
have any, if not, to the survivors. The shares then 
could not be vested in the children, since in the event 
of death before a certain period, they are expressly 
given to others. There is a farther direction, that if the 
daughter shall die leaving no child, or all the chUdreti 
shall die under twenty-one without children, the stock 
shall be transferred according to the appointment of the 
daughter. It is impossible to declare the shares vested^ 
without negativing these clauses of the will which dis* 
pose of them as not vested, expressly providing for 
every possible case. It has been argued that the shares 
must be considered vested, because it would otherwise 
have been unnecessary to insert these clauses of ulterior 
dtion, which were designed to prevent a child from 

15 making 


making a testamentary gift before twenty-one, which 1819. 
would have disappointed the intention of the testatrix ; 
but such a disposition was equally necessary in the 
event of there being no gift. The evident object is to 
preserve the shares of any who might die entire to 
tktir children or to the survivors. The clauses are 
consistent with the supposition that the jshares were ndl 
veifeedf but wholly inconsistent with the opposite coa- 
struction. It is clear from the immediate words, and 
from the context, that the shares could not vest till one^ 
at least, of the children, attained twenty-one. 

Tliese considerations dispose of the question as to 
the second period. What, indeed, should induce the 
testatrix to select the time of her death for determining 
who was to be excluded as an elder son ? None were to 
take at that time. Her purpose was, for some reason^ 
to exclude the person who sustained the character of 
eldest SOD, from participating in her bounty. The 
peri<id of distribution, therefore, must be that to which 
the exclusion refers. The Court cannot indulge in 
conjectures what her reason might have been ; the pm^ 
bability is, that the eldest son was otherwise provided 
fisr; but I think it unnecessary to consider that point. 
Whatever her reason was, it applied generally to ex- 
dnde an eldest son from the division ; and the period 
fer ascertaining the individual who sustained that char 
racter, was the pa*iod of that distribution from the 
benefit of which it was a cause of exclusion. In aU 
cases of legacies, payable to a class of persons at a 
future period, the constant rule has been, that all per^ 
Jons coming into esse and answering the description at 
the period of distribution, shall take ; and the same rule 
must be applied to persons excluded. There cannot be 
one time for ascertaining the class of those who are to 
take, and another for ascertaining the character which 



1819. excludes. This rule of referring to the future period of 
distribution being established by a long series of au- 
thorities, the Court must adopt that period, and not 
alter the state of the will, or the death of the testatrix, 
unless expressly appointed as the time of distribution. 
In the present case, the period is fixed beyond doubt, 
the trustees are directed to suffer the funds to accu- 
mulate until the termination of the imperial annuities ; 
that time arrived in May 1819 ; and that is the period 
to be regarded for ascertaining the individuals excluded: 
there is no doubt that Walter Matthews Paul then sus- 
tained the character of an eldest son ; and if the trustees 
were now to assign any part to him, they would act in 
direct contradiction to the terms of the will. 

It is not necessary to refer to former cases; some of 
which have proceeded much further than this ; a3 Chad^ 
wick V. Doleman{a\ an excessively strong case; for 
there, though an appointment had been in favour of an 
individual by name, that individual having become an 
eldest son was excluded ; the lord keeper declaring that 
the appointment was upon a tacit or implied condition of 
not becoming the eldest son. The same doctrine of a 
tacit condition has been recognized in Savage v. CarrM{h\ 
Lord Teynham v. Wehh (c), Hall v. Hewer (rf). Lady 
Lincoln v. Pelham{e), and Bowles v. Bowles. {/) If, there- 
fore, the shares had vested, the vesting would have been 
sub modo only, subject to be devested, and under the 
condition of not becoming an eldest son. 

On both principles, then, I think that Walter Matthew^s 
Paul is excluded from a share; first, on the general 

(fl) 2 Vem. 528. (rf) Amb, 205. 

{b) 1 Ball 4r Beat. 265. (e) 10 Ves. 1 66. 

(c) 2 Vet. 19S. (/)/(/. 177, 



ground, first, that the testatrix looked forward, to a future 1819. 

period, for the classes of those who were to take or to 

be excluded, and that, at that period, this Defendant 

sustains the character which excludes, and could not 

be adjnitted without contradicting the will; secondly, 

because, even had the words been more favourable for 

the argument that he takes a vested interest, yet that a 

tacit condition was annexed to the gift devesting it, in 

die event of the character of exclusion devolving on one 

m whom it had vested. 

Cases of hardship may be put both ways. Un« 
doabtedly on this construction, a younger son becoming 
cider, may be excluded from the provision made for 
yoiAiger children without being otherwise provided for. 
On the other hand, he might, as elder son, take the 
principal estate, and as younger, share the portions of 
Us sisters. But, without considering imaginary cases, 
the Court must proceed on general principles. The 
present is one of the strongest cases that has occurred 
Bgmnst the claim of the second son ; the use of the in« 
diefiiiite ftrticle necessarily refers the description to a 
lutate period. 

Declare that the Defendant, Walter Matthews Paid, 
is not entitled to any part of the 7000/. bank stock, and 
43002. 5 per cent, navy annuities, and the 5 per cetit. 
annuities purchased with the produce of the imperial 

Vol. hi. A a 



July 8. 15. 


Jti/j^8. 11. 15. 

fn L^^n^ npHE facts of this case appear in the report of the 
the validity of -*■ application to the Vice- Chancellor for a new triaL 
Two new ^ Madd. 214. The motion having been refused by his 

trials haying honour, was renewed before the Lord Chancellor, 
been ordered 

for misdirec- 

tioD, and the j^^. WeihereU, Mr. A. Moore, Mr. Heald, and Mr. 

▼erdict on the ' 

third trial, as DamtesweU, in support of the motion. 

in the two 

former, being Evidence of reputation of the boundaries of the fank 

the Defend- ought not to have been rejected. — The question to be 
ant, the ^in- decided is, whether by approvement or annexation of 
ed to pay the P^urt of the common, the boundaries of the farm have 

costs of the jjQ^ 1,^,1 enlarged ? and amounts to the question, what 

apphcations . « o ^ i 

in equity, (ex- were the boundaries of the common ? On that question 

die^i^st'aDDli- r^P^^^on is evidence. fVebb v. Petts (a), Stransham v^ 

cation to the CuUington (i), Congley v. Hall (c). Weeks v. Sparke (rf). 
Lord Chancel- 
lor,) and the 

costs of the The lease of 1703 ouirht not to have been received in 

last trial at 

law. evidence. A modus cannot be proved by evidence of a 

real composition. Ward v. Shepherd, j^e) 

The Loud Chancellor. 

The lease appears to prove nothing on the question 
of boundaries ; the engagement is to pay what is due 
for the lands demised, or some part thereof, and' affords 
no proof for what lands the sum paid is due. Nothing 
in that lease authorises the conclusion that any one acre 
is tithe free. 

(fl) Hoy. 44. See 2 Ro, Abr, (c) 2Roile, 1 95. 
186. pi. 5. (rf) I M.4rS. 679. 

(5) Cro. EL 228. (<?) 3 PH. 608. 



Argument for the motion resumed. IB 19. 

In the judge's charge the documentary evidence was 
not sufficiently insisted on* There is no case of a ^rm 
modus for part of a farm. 

Mr. TraoDevj Mr. Gasdee, and Mr. Tinney against 
the motion. 

The principle of tliis application is opposed by nume- 
rous authorities: BuUers N. P. 195. Ctarkson v. Wood-^ 
house {a), Stanley v. White {b\ StocfeweUy. Terry {c\ Reed 
▼. Jackson {d)y Richards y.Eoajis {e\ O Connor v. Cook {f)y 
Manly ▼. Curtis {g)y Bullen v. Michel {h)y Hardcastle v. 
Slater (2), Chapman v. Smith {k\ Atkins v. Lord WiU- 
loughby de Broke (/), Drake » v. Smith (jn\ Clothier v. 
Chapman (n). 

The authority cited of Webb v. Petts has no analogy 
to the present casQ. The question there arose on 
an application for a prohibition to the fxclesiastical 
Court under the statute 2&3£(f.6^ r.lS. 5.14; pro- 
ceedings in which the Courts, considering the penal- 
ties imposed on failure of proof, found it necessary to 
be satisfied with slender evidence of the suggestion, 
that deprived the* Ecclesiastical Court of jurisdiction. 
Anon, (o), Austin v. Pigot (/?). 

The LfORD Chancellor. 

The point now to be decided is, whether the question 

(a) 5 T, R. 418 n, (t) Amb.4l. 5Alk. 845. 

(b) 14 East, 35«. (k) 2 fVi. 506. 515. 

(c) 1 Ves.llS. (/) 2Anstr.S97. 

(d) 1 Easiy5S5. (m) S Pri.569. Dan. 104. 
(r) 1 yes,59. (n) l4Eaa^55l n. 
If) 8 Fes. 535. (o) Noy. 28. 
(g) 1 Pri. 225. (p) Cro. El. 736. 

. (h) 2Pri. 399. 424. 

A a 9 on 


1819. on the liability of this farm has been so satisfactorily in- 
vestigated on the trial of the issue directed by this 
Court, that the bill should be dismissed on payment of 
the sum of 4/., leaving the parties to a future contest, if 
the incumbent thinks fit to file a new bill, or whether, 
regard being had to the manner of the trial, the Court 
should require a farther discussion of the question ? 

The Plaintiff seeks to recover tithes in kind from a 
farm called Wootton Farm, containing 763 acres, and 
situate in the parishes of Wootton, Whippingham, and 
Arreton : the defence alleged is a farm modus of 41. 
payable annually at Michaelmas, covering that part of 
the farm (consisting of 632 acres,) which is situate in 
the parish of Wootton ; the rest of the farm pays tithes 
in kind : the subject in question is the validity of the 

I recollect no case in which parties have succeeded in 

establishing a modus, in lieu of all tithes, for part of a 

A farm modus farm ; but on principle I think that no solid objection 

farm nilv be ^^ ^ offered to such a modus. It was perfectly com- 

▼alid. petent for those whose contract would sustain a modus 

to contract in that form, before the reign of Richard the 
First; this farm being situated in three parishes, the 
tithe-owner of one parish might contract for a payment 
in lieu of tithes, of so much of the farm as lies in that 
parish, although the tithe owner of the other parish 
might not concur. Though new in specie, therefore, 
the question is not so new in principle as to raise an 
objection to the issue directed. 

This modus is stated as a farm modus. — Courts of 
equity undoubtedly have a right to decide in the first 
instance, if they think proper, the question of fact as 
well as the question of law; but a long course of deci- 



sion has established it as matter of sound judicial dis- 1819. 
cretion to send the question of a farm modus to a jury ; 
and that is the constant course. Considering the dif- 
ference between the question of a farm modus, and the 
simple question, what was the value of money, or any 
particular article, at the time when legal memoi'y com- 
mences, there is evidently more discretion in sending to 
trial by jury the question of a farm modus than any other 
modus ; but while is is clear, as I think, that though 
evidence is improperly received or rejected, the Court 
will not, for that reason alone, direct a new trial ; yet Reason for di- 
I am of opinion that it abstains from directing a new "^^^"8 » "«^ 
trial qT questions of this kind, only where it is satisfied 
that the question has been so dealt with, that if the evi- 
dence rejected had been received, or the evidence re- 
ceived had been rejected, and the verdict had been dif- 
ferent, the court would have been dissatisfied witli the 
trial: but the Court, when it establishes as a rule of 
sound judicial discretion, that these questions shall be 
sent to trial by jury, instead of being tried by its own 
authority, is bound to see that the jury has satisfactorily 
tried them. 

It is the habit of this Court, in ordering an issue, to 
direct, that, if the substance of the issue is found, but 
with some special circumstances which may be material 
in measuring the extent of relief to be given on further 
directions, that matter should be indorsed on the postea. 
The Vice-Chancellor has, with great propriety, inserted 
such a direction, in this instance, and the judge on the 
trial seems to have comprehended the purpose of it. 

In order to determine whether the past trial is, in this 
case, satisfactory, it becomes necessary to state, with 
some particularity, what evidence has been received and 
what rejected. 

A a J Tht 


The testimony of Robert Knight shows, that a fiurm 
of 400. acres paid 60/. a year for tithes, while 632 
acres, part of Wootton farm, paid only 4/. ; he states^ 
that that sum was paid as a composition, meaning, with- 
out doubt, a real composition. The evidence thus fiur 
establishes the &ct, that no one ever heard of payment 
of tithes in kind for these premises; and that in 1785,* 
in 1801, and in 1806, the incumbent of the parish gave 
receipts for the sum of 4/. as a modus ; and there is evi- 
dence, therefore, of payment of a modus, in round num- 
bers, during forty years. 

In this stage of the evidence is produced a counterpart 
of a lease dated in 1703 ; and the judge's report states, 
that notwithstanding an objection taken, he admitted it 
as evidence of reputation, but of reputation of what, he 
has not stated. That lease, an instrument executed be- 
tween the owner of the land and his tenant, contains a 
covenant by the landlord to pay taxes, &c. ** except 
the yearly composition, modus, or pension of 4/. per 
annum to the minister of WoottonJ^ The question on 
this instrument, if properly admitted in evidence, is, 
whether its effect has been duly brought before the jury ; 
and if improperly admitted, whether the jury gave more 
weight to it than they ought to have given ? 

In Bnlkr v. Michel {a) the House of Lords clearly 
approved the opinion of the majority of the judges in 
the Court of Exchequer, that an occupier of lands sued 
for tithes, cannot insist upon a pecuniary payment as a 
modus, and at the same time a real composition, which 
are widely different: — a modus may, perhaps, originate 
in a real composition, but must be proved to have ex- 
isted from the time of legal memory ; a real composition 

(ji) 2Pn,oOD. 



may have been made within that time^ by an agreement 1819. 
with the parson, under the sanction of the ordinaiy, 
before the restraining statute, (a) The Courts have 
held| that a Defendant insisting on a real composition, 
must produce evidence of the actual existence of the deed 
at some time, and that it is not sufficient to show non- 
payment merely as evidence of the loss of such a deed; 
allowing such evidence, every real composition might be 
turned into a modus, {b) Recollecting that doctrine, it 
remains to consider, in reference to this instrument, Distinction 
whether, consistently with it, the payment could be jusMdwro- 
nothing but a modus, or wl)pther it might not be a real podtion real, 
composition or a pension. 

If this instrument was properly admitted in evidenccy 
but proper observations were not made on it to the 
jury, or if it was improperly admitted in evidence, and 
must. have had great weight Mrith the jury, in either 
view there is reason for a new trial ; and it may, there- 
fore, not be necessary to express an opinion on the pro^ 
priety or impropriety of its admission. I should have 
thought it my duty to state it to the jury, even if the 
weakest of all evidence; it was extremely material to 
know the opinion of the owner of the estate and the 
tenant, on this paynlent ; and the lease acquires great 
force from the subsequent receipts of the rector. It 
ought, therefore, to have been particularly presented to 
the attention of the jury, in its strength or weakness, 
first, by itself, and afterwards in connection with the 
other instruments. It might have been properly ob- 
served, that the instrument determines nothing on the 
nature of the payment, whether a modus, a composi- 
tion real, or pension; but leaves diose points in total 

(a) isEUz.e.lo. Puli. 172. and the autboriticB 

(b) Knigki V. HaUey, 2Bot. 4- there dted. 

A a 4 In 


1819. In the view which I take of the case, it b not my duty 

to express an opinion on the effect of receiving the en* 
dence of reputation : there are cases in which it^ 
rial to know the particular nature of the evidence;— for 
instance, when it is conceded that evidence of reputation 
would be admissible to prove the boundaries of a com- 
roon, may not the boundaries of a farm be proioedy not 
immediately by reputation, but by approximation ; that 
18, proving by reputation the boundaries of the com-' 
mon, which coincide with the boundaries of the &rm ? 
Suppose a parochial modus extending over, not th^ 
whole of a parish, but the whole with the exception gf 
fiirm A ; then in order to ascertain what is covered by 
the modus, evidence by reputation is given of what con- 
stitutes A., not directly, but indirectly, by showing what 
constitutes B., to which such evidence is applicable. 
But I lay this out of consideration, and should not de- 
cide the general question without requesting the judge 
to state the particular evidence. 

There are two grounds on which I think that the 
parties cannot complain, if the court, before it gives br-* 
ther directions, requires a new investigation. I should 
wish that some communication may be made by thi 
counsel engaged on both sides here, of the doctrines 
established in this court and the Exchequer relative to 
tithes and real compositions ; and I have often endea* 
voured to impress the expediency, when issues are di« 
rected by this court, of employing in consultation som# 
counsel who had been concerned in the case here. 

The ground on which I proceed in directing a new 
trial is this, that I think that with respect to the ques-* 
tion, whether this payment has been made as a modust 
the case has not been satisfactorily tried, and that 
unless we are to say that all this documentary evidence 


is hereafter to be repudiated in all other oourtSi suffi- 1819. 
cient has not been said on it to lead the jury to a right \^ ' ' 
conclusion. «. 

. The directions given on the hearing of the case^ ffor 
the trial of the issue, were, in my opinion, quite righ^ 
not merely considering this as a question of farm modus, 
but because, having regard to the pleadings, no other 
issue could, as I think, have been directed. Looking at 
the leasee I could not have refused to the occupier the 
benefit of a trial whether this was a modus ; that in- 
strument would have induced much doubt in my mind, 
whether the payment was a modus, a pension, or a 
composition ; but I could not have granted an issue to 
try whether it was a composition; it would have been 
absurd to direct an issue whether this was a composi- 
tion real, because, if the parties could not produce evi- 
dence to support a composition real they must hfiv^ 
friled, though on other grounds entitled to 8uccee4« 
Nothing appears to induce me to think that this was a 
pension, much less, that a pension and a composition 
are nearly synonymous, which the jury seems to have 
been told. A pension is widely different both from a com- 
position real and from a modus : the parson of a parish 
may be entitled to a pension from lands, to the tithe of 
which he never had a claim. A pension, that is, a 
charge^ may be due for lands tithe free, and cannot he 
treated as a payment in respect of tithes. In many 
cases, within my own experience, when parties have 
claimed exemption by composition real, the courts b'ave^ 
for the reason before-mentioned, rejected evidence of a 

The trial has failed for this reason: it is impossible Katoreofa 
not to see that the judge considered the lease as P®""^"- 



conclusive evidence that the payment was a modus. 
The judge calls the attention of the jury to that instru- 
ment, as giving to this payment the character of pen- 
sion, or modus, or real composition ; but he tells them 
that a composition is a temporary agreement, and that 
a pulsion: and composition are the same thing. The 
jury ought to have been told, that in the lease of 1703 
the payment is called a modus, pension, or composition ; 
a receipt in 1785 describes it as a modus, but in 1703 
the parties have shown that they know not whether it is 
a modus, a composition, or a pension. Recollecting then 
this uncertainty, that a composition real requires peculiar 
evidence, and that although enough may not appear to 
sustain the payment as a composition, yet if the parties 
were dealing with each other as if it were a composi- 
tion, it cannot be a modus, and if dealing as for a 
modus it cannot be a pension } the jury should have 
been instructed that they were to determine the charac- 
ter of this payment, which is subject to so much uncer- 

The documentary evidence is certainly inconsistent, 
and admits many reasonable objections to the credit of 
each instrument; but the practice of our courts, for 
many centuries, has been absurd, if, by reason of such . 
inconsistency, these documents are not to obtain much 
more credit than was allowed to them on this trial. 

This case has not been tried, and I think it better to 
exclude the possibility of filing another bill, by direct- 
ing a new trial, reserving the costs of the former. 

For the following note of the further proceedings in 
thb cause the editor is indebted to Mr. JValket'. 



Upon the second trial which took place at the Witi" 1820. 

Chester summer assizes, before Wood B., a verdict was again ^J-!- '-' 

found for the Defendant, (the Plaintiff at law). In ad- v, 

dition to the evidence on the former trial, a receipt was T^nfj 

produced, dated in 1783, in which the rector, Mr. Wal- j^/yg. ii*. 15. 
tofij acknowledged the payment of the 4/. without calling 
it a modus. 

Mr. Weiherell and Mr. A. MoorCj now moved for a 
new trial (a), on the ground of misdirection of the judge 
as to the nature and weight of the evidence. The ob- 
jections were, first, that he had stated to the jury, that 
the ancient documentary evidence was entitled to little 
or no weight, and that more stress had been laid on the 
modem evidence than was fairly due to it; that the 
attention of the jury ought to have been directed, not 
only more particularly to the gejieral character of the 
ancient evidence, but also to tlie combined efiect of it, 
which in this case, from its uniformity for a period unu- 
sually long, was almost decisive in favour of the rector. 
Secondly, that he had treated the words, yearly compo- 
sition, in the lease of 1 703, as meaning real composition, 
and that the possibility of their meaning a temporary one, 
and the doubts which that construction must necessarily 
raise, as to the nature of the payment, were never pre- 
sented to the mind of the jury. Thirdly, that no ob- 
servation had been made on the omission of the word 
modus in the receipt of 1783; and, fourthly, that the 

^•i* ^ — ■ , ■ _^ 

^ (a) The Plaintiff was also of the issue could be ques* 

I desirous that the form of the tioned only on an appeal 

0- issue should be changed, but from the decree by which it 

* * . the Lord Chancellor was of was directed. A petition of 

opinion that no order to that appeal was accordingly pre- 

effect could be made on a sented, and heard at the same 

motion for a new trial ; and time with the motion. 

that the propriety of the form 



1820* • Bjomney March cases (a), which were mentioned by the 
White j^^^g^ ^ ^^ j">7> ought not to have been alluded to. 


Mr. Trorjoerj Mr. Gaselee^ and Mr. Tinney opposed 
the motion; and^ contended that the judge, in substance, 
had stated that the ancient documents (to which he had 
adverted in detail, although it must be admitted by 
every one that little reliance could be placed on them) 
were clearly evidence ; but, secondly, that they were not 
conclusive evidence, and that the jury were to give such 
weight to them as they might think proper. The only 
thing, it was argued, strictly to be inferred from the 
lease was, that the payment was a permanent one, and 
as it could not be a pension, the question, whether it 
was a real composition or a modus, being uncertain, 
was properly left to the jury : the names in the lease 
w^re inserted as words of course, and, as evidence, were 
therefore not of much importance, and the observations 
which were made by this court on the motion for the 
second trial were brought before the jury by the De- 
fendant's counsel. 

The Lord Chancellor. 

I shall not- again enter into a statement of the reasons 
which induced me to grant a new trial in this cause, 
afler the issue was tried before Mr.. Justice Park^ par- 
ticularly as other points were then raised, which were not 
entered into upon the second trial. The only question 
now, as I understand, is, whether this payment of 4/. is a 
modus? The evidence represents that word to have 
been occasionally used, when the payment was made; but 
the first receipt produced for the sum in question \^ dated 
in 1785; that receipt ascertains 4/. to be the amount 
paid, but there is no expression in it which ascertains 

(fl) t Fes, 506. 



the nature of the payment. In 1785 there is a receipt 1820. 
which not only mentions the sum of 4/., but mentions 
it as being a modus. It has been argued, that the 
learned judge who tried this issue ought to have re- 
marked to the jury, that the receipt of 1783 did not Juiyis. 
contain the word modus. It does appear to me that 
if I had tried the cause, I should have mentioned that 
fiurt, but I should have accompanied it with this observ- 
ation, that if there was any hesitation in giving the name 
of modus to this payment in 1783, it had been over- 
come in 1785, as that name is given to it in the re- 
ceipts of that and subsequent years. But the circum- 
stance which it appears to me ought to have been par- 
ticularly called to the attention of the jury is, the names 
by which this payment is designated in 1703. It ap- 
pears that the patronage of the living and the ownership 
of the estate had long continued in the same family ; 
and a lease dated in 1 703 is produced, by which the 
land-owner lets the farm to a farmer, who undertakes to 
pay^ ail out-goings, except the yearly composition, mo- 
dus, or pension of 4*/. per annum to the minister of 
Wootton. The learned judge, in his summing up, 
speaks not only of real, but also of yearly compositions; 
the former subject he treats as it should be treated. This 
issue being to ascertain whether it was a modus or not, the 
&ct of its being a real composition would be fatal to 
tbe PlaintifTs case ; but the judge seems to say, that it 
is incumbent on the Defendant to have proved that; 
this could hardly be expected from him, as, if it were 
afterwards set up as a real composition he would en- 
deavour to establish the contrary ; perhaps, however, no 
observation of much importance in &vour of the Plain- 
tiff could have been made on this point, except that it 
might have been a real composition, regard being had to 
the uncertainty whether it was a modus or not The 
judge, on the other hand, speaks of a temporary 

composition ; 


1820. composition ; but then he treats it, as it seems to me^ 
without sufficiently distinguishing between that which is 
a composition, in the exclusive sense of the word, and 
a modus : the fair way of putting it would have been to 
have given an opinion as to the meaning of the words 
in the deed ; the jury should have been told whether 
the judge thought yearly composition and modus meant 
the same or different things ; if in legal constnictkm 
they meant the same, that would be favourable to the 
PlaintifPs case ; but if yearly composition meant, as it 
generally does, a temporary composition, as contrardis- 
tinguished from a modus, that would be strong evidence 
that this payment was not a modus, or, at least, that the 
land-owner, in 1 703, could not undertake to say whidi 
it was. If such were the meaning of the word, it ought 
also to have been observed to the jury, that before 1703 
there was no receipt in the possession of the landowner 
describing, it as a modus, and from that time to 1785 
there is no such receipt in the possession of the fiimily ; 
and the fair way then of putting it to the jury would 
have been to have said, if you should have been of 
opinion, if this bad been tried in 1 785, that this pay- 
ment was not a modus, the question you will now have 
to determine is, whether the transactions subsequent to 
1785 so bear down all the observations that can be 
made on the antecedent evidence, that you can take 
upon yourselves to say, that that which has been deno- 
minated a modus since 1785, was and ought to have 
been so denominated before. 

With respect to the written documents which were 
produced, I am ready to admit, tliat that species of evi- 
dence is open to very strong observations on the othepr 
side, but I cannot agree that no observation is to be 
made for it The value of such documents is to be 
estimated by the particular circumstances of each case 



in which they are produced. With respect to the tax- 1820. 
ation, the inquisition, and so on, the parties were inter- o^" ~^ 
ested in representing the property to be taxed at as low v. 

a rate as could be believed ; but the question is^ Lim.k. 
whether they could venture, and that for a series of 
years, to put it at a rate so far remote from what was 
the real value, as they have done, if this 4/. is a valid 
modus* And I cannot help thinking, I speak with 
deference, that it is not right to state to a jury some 
very remarkable instances in which former juries have 
found a modus valid, without stating those in which 
other juries have not ventured to go the same length 
as those who have pronounced the verdict in the one or 
two cases referred to. Upon these grounds, provided 
the Plaintiff, in this suit, will undertake to give the occu- 
pier no further trouble should this verdict be against 
him, I think that a new trial ought to be granted. 

. The Plaintiff, Richard Walton White^ by his counsel, 
undertaking that if, upon a new trial of the said issue, 
the jury should find a verdict against him, he should be 
finally concluded by such verdict, as to the matters in 
question in these causes, it was ordered that the parties 
should proceed to a new trial of the said issue, at the 
next Winchester assizes; and it was ordered, that the 
Defendant, S. M. Phillips^ should be the Plaintiff at 
law, and the Plaintiff R. W. White, should be the De- 
fendant at law ; and if any of the witnesses, examined 
upon the former trials, should be proved to the satisfaction 
of the Court, at the time of such new trial, to be dead, 
or in such a state of health as not to be capable of at- 
tending, then the judge's notes of the testimony of such 
witnesses were to be read at the said new trial; and 
the costs of the foilner trial were reserved, until after 
the new trial ; and either of the parties was to be at 



liberty to read the depositioris taken in the cause, at the 
trial of the issue, in case it should '' appear to thig satis- 
faction of the court, that such witnesses, or dther of 
them, were dead, or in such a state of health as not to' 
be capable of attending. 

A new trial accordingly took place before Graham B., 
at the following Winchester Summer assizes, when a 
verdict was returned, for the third time, in favour of the 
Defendant, Susan March PhiUips^ the Plaintiff at law. 

16th Afigustj 1821. << His lordship doth order, that 
the Plaintiff's bill do stand dismissed out of this court ; 
and it is ordered that the Plaintiff do pay unto the De- 
fendant, Stisan March Phillips^ the costs of these suits, 
including the costs of a motion for a new trial, before* 
the Vice-Chancellor, and also the several applications 
made by the Plaintiff to the Lord Chancellor, except 
the costs of the first application for a new trial before 
the Lord Chancellor; and also the costs of the last triak 
at Uw : such costs to be taxed by the said master, Sir 
John SimeoHy bart, to whom these causes stand re- 
ferred. And it ordered that the petition of appeal 
lodged by the Plaintiff against the decree, do stand dis- 
missed, and that, the sum of ten pounds, deposited with 
diie register, on setting down the cause to be heard on 
the said petition of appeal, be paid to the Defendants.'* 
Beg. Lib. B. IS21. fol. 277. 








Ck>mmencing in the Sittings before 

5S Geo. III. 1818. 


^j^ILLIAM GILESy a Defendant in this cause, having The christian 
been erroneously named Edward Giles in the title ofSlcDelSlid- 
of the interrogatories exhibited for the examination of ants having 
witnesses on behalf of the Defendant Edward Bonxyer^ \^ ^he title to 

the Vice-Chancellor, on the 13th of J?//v 1818, ordered intcrroffato. 

nes and depo* 
that the Defendant Bcnxyer might be at liberty to alter sitions, an 

the christian name of the Defendant Giles, in the title of ^'^?" y"* _ 

made tor cor» 

the interrogatories, from Edward to William. Reg, recting that 

Lib.A.1817.fol.lS92. '{SjlhT 


It afterwards appearing that the error extended to 

the title of the depositions which had been taken under 

Voi^ III. B b a com« 


1818. a commission then in execution for the examinatiim of 
witnesses, a motion was made on behalf of the Defendant 
Bonxyer^ that he might be permitted to alter the christian 
name of the Defendant Gile$ in the titles of the different 
sets of original and cross interrogatories exhibited for 
the examination of witnesses on the part of the Defendant 
Baayevy and also in the title or titles of the depositionfi 
if any, taken thereon. 

Mr. Mascall for the motion. 

Mr. Agavy against the motion, objected, that after the 
alteration, peijury could not be assigned oxx th^ dc|K>« 
sitions ; and cited JVhite v. Taylor, {a) 

The Lord Chancellob. 

The witnessess must be all re-swom after the dtle <^ 

rihe interrogatories has been rectified, and the Defendant 

Bcmfer must pay all the costs. It is a point of nicety; 

but I ^ill go the utmost length, consistent with the 

.safety of the proceedings, to relieve a mere mistake. 

The following order was made : " His Lordship doth 
'Order that the commissioners named in the commission 
for the examination of witnesses issued in this cause, bt 
at liberty to alter the christian name of the said De> 
fendant Giles from Edward to William^ in the titles of 
the several sets of original and cross interrogatories, ex* 
hibited under the said commission; and also that the 
examiner be at liberty to make the same alteration in* 
the title or titles to the interrogatories filed in this cause 
in his office, in which the said Defendant is namejS, 
Edward Giles ; and it is ordered that the said conmuf- 

(a) S Vem. 435. 1 Eq. Ca, Ab. 50. pi. 7. 


flooen, and the said examiner respectively, be also at 1818. 
liberty, in the depositions already taken upon such re- 
flective interrogatories, to alter the name of Edward 
Qiles to that of William Giles^ and afterwards to re-swear 
flodi of the respective witnesses who have been examined 
on the present interrogatories, as are willing to be re* 
sworn to the truth of the depositions so altered ; and it 
is ordered that the said commissioners and examiner do 
certify to this court, which of the several witnesses have 
been so re-sworn to the truth of the req)ective deposi- 
tions so altered ; and it is ordered, that the said De- 
fendant Edward Bowyer do, previous to such alteration 
being made as aforesaid, pay unto the said Plaintiff the 
costs and reasonable charges which have been incurred 
by him with respect to the examination of witnesses on 
the said interrogatories, and also the expenses of making 
•acb alteration as aforesaid, together with the costs of 
this application ; such costs and charges to be taxed, &c. ; 
and it is ordered, that the order obtained in this cause, 
dated the 13th day of July instant, be discharged." 
Beg. Lib. A«. 1817, fol. 1608. 


'^^N the ]3th of May 1817, the Plaintiff obtained the An order ob« 
^^ common injunction for want of answer. Reg. Lib* ^ceptions to 

A. 1816. fol. 956. the answer 

allowed, for 
entering nunc 

On the 5th of August 1817, the following order was P^^ tunc, an 
made for dissolving the injunction : " Whereas by an solve an in- 
order dated the 19th day of JWy 1817, it was ordered ftg'j^j^",^^ 

of cause 
thewn to the contrary, is not irregular; nor is the Plaintiff entitled to continue or 
Itflve the injunction. 

Bb 2 that 


1818. that the injunction granted in this cause, until answer 

„ ^ and other oi«der to the contrary, should be dissolved^ 

Harcourt ... 

V. unless the plaintiff, his clerk in court having notice 

Ramsbottom. thereof, should on the 28th dayof Jw/j/ 1817, shew unto 

the Court good cause to the contrary, which time for 
shewing cause stood enlarged to this day ; now upon 
motion this day made unto this Court, by Sir Samuel 
Bjomilly and Mr. JRoupel of counsel for the Defendant, it 
was alleged that due notice had been given of the said 
order, as by affidavit appears, and no cause having been 
shewn to the contrary thereof, during the sitting of the 
Court, it is, at the rising thereof, ordered that the in- 
junction do stand absolutely dissolved/' Reg. Lib. A. 
1817. fol. 2127. 

On the 24th of November 1817, it was ordered, that 
the Defendant's clerk in Court do accept tlie exceptions 
to the sufficiency of the Defendant's answer, as if the 
same had come in in time. Reg. Lib. A. 1817. fol. 31. 

On the 20th of December 1817, the usual reference of 
the answer and exceptions was made to the Master, to 
certify whether the answer was sufficient. Reg. Lib. A. 
1817. fol. 320. 

On the 22d of July 1818, on the motion of Mr. 
Soupely of counsel for the Defendants, it was ordered, 
that the order made in this cause, on the 5th day of 
August 1817, which has been drawn up, but omitted to 
be entered within the time limited by the rules of this 
Court, be entered nunc pro tuncj and thereof notice is 
to be given forthwith. Reg. Lib. A. 1817. fol. 1639. 

After the 5th o( August 1817, fifty-six exceptions were 
taken to the answer of the Defendants ; on the 30th of 
June 1818, the Master certified that he had allowed 



thirty of the exceptions ; and on the 1 1 th of Juh/f an order 1818. 
-was obtained for leave to amend the bill, and that the 
Defendants might answer the amendments and the ex- v. 

captions at the same time. Rambottom. 


A motion. was now made, on behalf of the Plaintifl^ ^^' i*- 
to discharge the order of the 22d of July 1818, and 
to continue or revive the injunction. 

Mr. Bellj Mr. Montagu^ and Mr. Phillimore in sup- 
port of the motion. 

Exceptions to the answer having been filed and al- 
lowed, if the order dissolving the injunction were now 
entered, it would contain a false allegation ; namely, that 
no cause is shewn against dissolving the injunction, 
while exceptions to the answer are pending. The 
Plaintiff may shew exceptions for cause after failing on 
the merits, as he may shew cause on the merits after ex- 
oqptions over-ruled. Gilb. For. Bom. 97. An order not 
entered and served is a nullity. 

Sir Samuel Bomilly against the motion. 

At the time appointed for shewing cause against dis- 
solving the injunction, cause was shewn, but not suffi- 
cient, and insufficient cause being considered as no 
cause, the order according to the usual form contains a 
recital to that effect. By the established practice, the 
Plaintiff is put to his election to show exceptions or 
merits against dissolving the injunction ; and failing on 
the merits, he cannot afterwards shew exceptions. In 
this instance, the time for shewing cause is enlarged, 
which amounts to a waiver of shewing exceptions. The 
mere omission to enter the order when it was made, is 
no ground for discharging it ; aftej* the time within which 
the registrar enters an order without the direction of 

Bb 3 the 



1818. the Court is elapsed, an order may be obtained fin* Uial 

t^ ' "^ purpose by motion of course, and is clearly not irre- 

V. gular. 


The Lord Chancellor. 

This is a case of great consequence to the practice of 
the Court. 

After under* 
taking to shew 
cause on the 
merits against 
dissoMng an 
cannot be 
shewn for 

An answer having been filed, the Defendant moves to 
dissolve the injunction which had been obtained for 
want of answer, on the allegation that he has put in a 
sufficient answer: when the time comes for shewing 
cause against dissolving the injunction, it is for the 
Plaintiff to decide whether he will give credit to thai 
allegation. If not, he must shew exceptions for cause ; 
and he has no other course, except an undertaking to 
shew cause on the merits at the next seal. If he makes 
that undertaking, I apprehend that he has no right 
afterwards] to shew exceptions for cause (a) ; and, if he 
fisdls on the merits, the injunction is dissolved. 

I will 

The First Seal afler Michadmas^ 12 Geo. 2. 1738. 

After enlarge- 
ment of the 
time for shew- 
ing cause 
against dis- 
solving an in* 
junction, the 
Plaintiff can- 
not shew ex- 
ceptions for 

It was moved in this case 
to enlarge the day for shew- 
ing cause why the injunction 
should not be dissolved upon 
the coming in of the Defend- 
ant's answer ; to which Lord 
Hardxvicke (Chancellor) said, 
** You must then take the 
answer as it is, and you can- 
not come after and shew ex- 
ceptions for cause;" upon 
which the Plain tiff's counsel 

urged, that the Defendants 
were in contempt for not 
answering in time, and had 
not cleared their contempt 
by paying the costs, and 
therefore produced the at- 
tachment, and moved upon 
that ; but it was held that the 
Defendants might clear their 
contempt in court, by paying 
the costs there, which they 
offering to do by their solici- 



' I will not say, that where a plaintiff has failed on 
inerita^ there may not, on the answer to exceptions, 
Afterwards appear a case in which he may be entitled to 
an injunction on the merits; but then he must come to 
reriv^ the injunction, shewing that the answer to the 
exceptions has established a case, which, if he had had 
it before, would have entitle him to an injunction. 


tor, this was overruled. It 
WM then said for the Piain- 
tffi, that they had the whole 
day to shew cause, and they 
would prepare exceptions, 
which it was agreed they 
might do, but they agreeing 
afterwards to take the answer 
a^ it IS, the day for shewing 

cause was enlarged to the 
third seal.— Mr. Coxes MSS. 
7th Nov. 1788, common in- 
junction for want of answer* 
— Reg. Lib. B. 1738, fol. 56. 
The register has been ex- 
amined without success for 
a subsequent entry in this 



Whether an 
dissolved on 
merits can be 
revived on 
merits dis- 
closed in the 
answer to 


12th March, 27 Geo. 2. 













^ The bill in this case was 
for an injunction, &c., and 
the Defendant not having 
answered in time, the' com- 
mon injunction went upon 
an attachment, and the an- 
swer being come in, the usual 
order was made to dissolve 
the injunction, unless cause, 
and tbereupon the Plaintiff 
having taken exceptions .to 
the answer, the exceptions 

were shewn as cause against 
dissolving the injunction, but 
according to the course of 
the court, the order was for 
the Plaintiff to procure a re- 
port of the answer, being in^ 
sufficient in four days, or 
otherwise the injunction to 
be dissolved without further 
motion (b) ; and the Master 
being attended upon the an- 
swer, he reported it to be 

(«) 2 Madd. 355. n. (6) Reg. Lib. B. 1753, foL 179. 

Bb 4 








I will, therefore, not undertake to pronounce an opi- 
nion that the answer to exceptions may not supply a 
case of merits ; but the Court is extremely anxious to 
oblige the Plaintiff to rest at once on exceptions or 
merits; if he were permitted to vacillate, such hardship 
would ensue,, as this Court cannot allow. 

Unless I mention the case again the injunction may 
be considered as dissolved. 

A^.u. The Lord Chancellor intimated that he retained the 

opinion which he had expressed, and that the order pro- 
nounced on the 28th of July might be given out. 

sufficient, and thereupon the 
Defendant took out execu- 
tion upon his judgment at 
law, and the Plaintiff, to 
prevent its being executed 
upon his goods, paid the 
money into the hands of 
the sheriff, and moved the 
Court of Chancery at the 
next seal after upon the 
merits of the case, that the 
injunction might be revived 
and continued to the hear- 
ing, and that the money paid 
into the hands of the sheriff 
might be returned to the 

Plaintiff. But the Lord Chan- 
cellor said, he never knew 
the Court revive such an 
injunction after execution 
executed; and that as the 
Plaintiff had relied upon the 
answers being insufficient, 
which were found otherwise, 
he was too late now to move 
upon the merits ; and there* 
fore refused to make any 
order ; but said, the Plaintiff 
might, if he thought proper, 
proceed in his cause to get a 
decree. — Mr. Coxes MSS. 



PRICE, and EDWARD FISHER, Defendants. (a) 

^^N the 2d of July 1818, an application for an in- An injanctioii 
^"^ junction was made to the Vice-Chancellor, sup- ^^nt'SiYiM 
ported by an affidavit of the plaintiff, William WhUe-- been grantM 

housCf in substance as follows. ^ancellor 

upon terms of 
paying the money in question into a bankine-bouse within a month, the Lord Chan- 
cellor, on the motion of the Defendant, and evidence of threats of the Plaintiff to 
leave the kingdom, refused a writ of ne exeat regno, but ordered that the injunction 
should be dissolved, unless the money was paid within three days ; and intunated a 
doubt of the jurisdiction of the Court to enjoin against an extent. 



10th March 1747. 

editor Tlu8 was a motion to dig- moved to discharge the or* 

^^^ charge a writ of ne exeat der, upon a supposition that 

iJBi^m^ regno. The Plaintiffs were he had a right to profceed by 

, hav- assignees of a bankrupt, the arrestment. 

^'P^'*^ Defendant a creditor, who, The Lord Chancellor. 

[ned before bankruptcy, had made The Defendant had not ob« 

rthe arrestments in Scotland on tained sentence before thd 

•""P*^ debts due to the bankrupt bankruptcy ; it is then Iik<) a 

e^ljj from persons there, and on subsequent foreign attach- 

ett affidavit of his getting the meat by the custom of Lon* 

^^ l&oney into his hands, the don. Would this Court suf- 

Umdto ^t was ordered. He now fer a creditor to obtain pri- 

I dne to the bankrupt's estate there, to an amount much beyond his own 
, mm, upon evidence of his intention to quit the kingdom, restrained by 
of M e^peat regno, 

(a) Dick. 119. aT.R. 193. n. 



1^ IS. In May 1 8 1 1 , the Plaintiff, who carried on the business 

S.^ ^ "" of nail and ironmoncrers at West Bromwich. in the county 

WhITEHODSE . . . r 1 

of Stqffbrdy in co-partnership, obtained from the com- 


ority by such an attachment 
6nly, ^ if no sentence was 
pronounced before the bank- 
ruptcy ? Certainly not. The 
true way is for the Defendant 
to give security, if the Court 
of Session will not regard 
the right of the assignees. I 
cannot grant an injunction or 
prohibition to the Court of 
Session, but I will certainly 
restrain the party. I will not 
permit a creditor here to gain 
such a priority, to pass by the 
commission of bankruptcy, 
go into Scotland or Holland^ 
where arrestments are suffer- 
ed, and arrest debts there, &c. 
to obtain a preference, and 
evade the laws of bankruptcy 
here. That is the nature of 
the present case. The De- 
fendant endeavours to pro- 
cure an entire satisfaction by 
another law over effects there. 
If I discharged the writ, he 
might go out of the kingdom, 
and evade all account here. 
If the Defendant were not 
going abroad I would do no- 
thing; but as he is, I shall 
not discharge this writ with- 
tat security to abide the 
event of the cause. — MS. 

The facts of the case on 
which the writ was issued^ 


appear from the entry of the 
order for that purpose in the 
Register, 2Hh February 1747« 
<^ Upon consideration thift 
day had by the right honour- 
able the Lord High Chancel- 
lor, &c. of the humble peti« 
tion of the Plaintifl&, shewing 
that a commission of bank- 
rupt issued against John 
Aberdeen, late of Londofh 
merchant, bearing date the 
29th day of September 1746, 
and he was thereupon found 
a bankrupt, and the Plaintifb 
(together with one Jeremiah 
Cape, since deceased,) were 
chosen assignees of his estate 
and effects; that the said bank- 
rupt, before his bankruptcy, 
having dealt considerably into 
Scotland, there was due to 
him in that country at the 
time of issuing the said com- 
mission, upwards of 700^«, for 
the better recovering and 
getting in the same, the 
Plaintiffs, together with the 
said «/. C, granted their 
power of attorney to a mer- 
chant in Scotland^ that on 
their agent's applying to thpe 
several debtors in that coun- 
try for payment of the debts 
due from them to the bank- 
nipt*s estat^i they severally 




missionecs appointed by statute 51 G. S. c. 15., a loan 4818k 

of exchequer bills to the amount of 5000/., of which '- - ' *. 

ram they, in pursuance <^ a previous agreement, ad> n 

vanced »*»"»•* 

iafbrmed htm that they would 
leadily pay, but that the De- 
teodantf Thomas Ogiiviey a 
iMrchant, residing in Lon- 
4omf pretending to be a large 
creditor of the said bankrupt^ 
tw|d Kent dawn orders to his 
agent in Scotland^ to arrest in 
the hands of the debtors all 
the debts due to the said 
J. Aberdeen the bankrupt, in 
Scotland^ which he had ac- 
cordingly done, and that they 
Could not pay till those ar- 
restments were removed; that 
the Plainti& have lately re- 
ceived information from their 
said agent in Scotland^ that 
the said Defendant, T. OgiU 
mCf had proceeded on the 
said arrestments in the courts 
6i justice in that country, 
and although the Plaintifi 
by their agent had made a 
defence, and insisted on the 
said commission of bank- 
ruptcy and assignment, yet 
tite said Defendant, T. Ogil- 
viCf so far prevailed as to 
obtain decreets or sentences 
for the payment to him of the 
money so arrested, and some 
df them had already been 
oMiged to pay their debts to 
the said Defendant, Ogilvie'B 
agent, and the others of them 

would soon be obliged to do 
the same, although there ap- 
pears to the Plaintifis to be 
due to the said Defendant, 
T. OgUvie, only 31/. ^. 9d. 
from the bankrupt ; that the 
said Defendant, OgUw^ who 
has resided some 3rears in 
London, and traded as a mer- 
chant there, is now fitting 
out a ship to go on a voyage 
to Guinea and the IVett In* 
dies, and intends very soon 
to proceed in her himself, 
whereby the Plaintiff will be 
prevented from recovering 
the monies the said Defend- 
ant's agent has already re- 
ceived on the said arrest- 
ments in Scotland, and the 
other monies which the said 
Defendant's said agent will 
receive on that account, as 
by affidavit appeared ; that 
the said Aberdeen s creditors 
will, by such contrivances, 
be defeated of a very great 
part of the said bankrupt's 
estate, which, they hope, 
ought to go and be divided 
proportionably among the 
creditors who have or shall 
come in, in due time, and 
prove their debts under the 
said commission ; . that the 
Plaintifb have filed their bill 




1818. vanced 1400/. to the Defendant, Partridge^ and con*« 

•I-^ " " formably to the provisions of the act, the Piaintiffii 

V. executed their joint and several bond to his majesty^ 

against the said Defendant, 
T. Ogilvie^ as by the six 
clerks' certificate appears ; it 
is ordered that a writ of ne 
exeat regno do issue against 
the said Defendant, T. OgU- 
vf>, until he shall fully an- 
swer the Plainti£P's bill, or 

this Court make further or- 
der to the contrary ; and the 
same is to be marked for the 
sum of SOO/., and to that end 
the said writ is to be indorsed 
in words at length, and not 
in figures." — Reg* Lib. B. 
1747. fol. 167. 

At the Rolls, 10th January 1792. 

A writ o£ne 
exeat regno 
was granted 
Id respect of 
a debt for 
which the 
made himself 
liable, on the 
account, but 
which he had 
not yet paid. 

The Defendant was an Eng» 
lUh merchant established at 
Malaga; the Plainti£P acted as 
his agent and correspondent 
in England for several years, 
and was, by agreement, al- 
lowed a commission on all 
the orders he procured to be 
sent to the Defendant from 
England. In the course of 
these dealings between the 
Plaintiff and Defendant, the 
Plaintiff, by the Defendant's 
direction, chartered a ship 
for the Defendant, on a voy- 
age from London to Malaga^ 
and thence to Bremen, In 
the charter-party which the 
Plaintiff executed, he was 
stated to be the agent of the 
Defendant. After the voy- 
age had been performed, the 
owner of the ship brought an 
action of covenant against 

the Plaintiff, upon the charter- 
party, and recovered a ver- 
dict for 800/., which was 
200/. less than he had at first 
demanded, and the Plaintiff 
being unable immediately to 
pay the 800/., an agreement 
was entered into between the 
owner of the ship and the 
Plaintiff, that he should pay 
the 800/. by instalments of 
50/. a year, without interest, 
and that the judgment should 
stand as a security for pay- 
ment of the instalment. The 
Plaintiff had not yet paid any 
of the instalments, but the 
Defendant coming to Eng" 
landy and being about shortly 
to return to Malaga, the 
Plaintiff filed his bill for an 
account of all dealings and 
transactions between them, 
and prayed; that in taking 



his heirs, and saccessors, in the sum of 10,000/., con* 1818. 


ditioned for the payment of 5000/. by instalments, and 
Partridge, together with J. Roundj JV. H. EastureUj and " " \. 
J. Hatchhfi as the sureties of the Piainti£&, in like man* PA»Tan>*»* 
ner became jointly and severally bound to his majesty, 
his heirs, and successors, as sureties for the Plaintiiis, 
for the due payment of the loan of 5000Z.; Partridge be- 
coming bound in the penal sum of 4000/. as surety for 
£000/,, and the other parties respectively, in the sum 
of^SOOO/., as sureties for the three several sums of 
1000/. each. 

The Plaintiffs paid the first two instalments on the 
bond, amounting to 2500/. with interest to the 12th of 
July 1812, and under the statute 52 G.S. c. 137. the 
time for the repayment of the remaining instalments 

the account he might be al- ne exeat regnOf and directed 

lowed 791/. 5<.6(/., in respect it to be indorsed with the 

of the said bond so entered sum of 791/. 5s. 6d. 

into by him ; and that the Aflter his Honor had made 

Defendant might be restrain- the order, he stopped it in 

ed by a writ of ne exeat regno the hands of the register, and 

from gobg out of the king- afler some days directed him 

dom. to deliver it out. — From Mr. 

Upon an ex parte petition RomiUys notes. Lord Ccl^ 

to Sir R, P. Arden, Master Chester's MSS. 

of the Rolls, supported by an 10th January 1792. *^ His 

affidavit, stating all the above Honor doth order, that a writ 

facts, and that the Defend- of ne exeat regno do issue 

ant was indebted to the Plain- against the said Defendant, 

tiff in SO/., upon the balance until he shall fully answer the 

of accounts, independently of Plaintiff's bill, and this Court 

what was due in respect of make other order to the con« 

the bond entered into by him, trary; and it is further or- 

and in 791/. 5s. 6^., in respect dered that such writ be marked 

of the bond, in manner be- in the sum of 791/. 5s. 6d. in 

fore mentioned ; His Honor, words at length, and not in 

after much consideration, figures." Reg. Lib. B. 1792, 

made an order for a writ of fol. S6» 







As <o^ 



.„.-.* tfft «»° Price 












the °^^' 



^* •«« d*« 















^ 95001-' ^J^ba^a^*^^ ; ,occss 

liss^o^'"" .^ V):J 


t).e ^^"^Txt -^^^ 







levied frpm the estate and effects of Partridge^ togedier 19184 
\yith thexoats of the levy, and other costs amounting in: ^ ^" ^^^Zm 
the whole, with the sum of 621/. 17^. 8d to 7^1. ISs. 10d,f ^ 

and the whple of the d^ due to the commissionery. *'**'WlftW 
in respect of the said loan was thus satisfied and 
paid. The Plaintifis insisted that, in such payments 
Partridge had paid and satisfied only that portion of tbe^ 
loan which it was incumbent on him to pay, or as in the 
nature of a principal, and ui exoneration of the Plaintiffs, 
inasmuch as the sum of 1400/., part of the said loai^, 
had been actually advanced to Partridge immediately 
after it was obtained, and he was, at the date of the. 
bankruptcy, indebted to the estate of the Plaintifis ii| 
the sum of 1844/. Ss. 2d., being ^Ik amount considerably 
exceeding the sum obtained from him by the commis^ 
8|onexf under the levy ; and that the debt from P<ir'>, 
fridge to the Plainti& was part of their estate and 
effects, within the meaning and operation of the order 
obtained by Holden, 

* 'The Plaintiffs having obtained their certificate, and 
recommenced business on their separate accounts. Par- 
tridge demanded from them the repayment of the sum 
of 749/. 35. I0d.y and threatened to obtain from the 
commissioners their warrant or process of extent for th^ 
recovery thereof, under the provision in the act (a), 
giving to sureties the benefit of the process of extent 
agahist the principal debtor or obligor for recovering 
the sums paid by them; the Plaintiffs insisting that 
Partridge was not a surety within the meaning of the 
act, but that on the contrary, that portion of the loan 
which he received and had not accounted for, would 
have been assets applicable to the payment of the order 
obtained by Holden. 

(«0 51 6eo.l, c,15. *,4S. 



18 18* The assignees were willing, if necessary, that ike 

Writeh UBS ™®^^^ received by Partridge and remaining in his 
«. hands, should be applied in payment of the order, and 

AaTAiDos. Ij^j given notice to him, that in his account with them 
as their agent, they v^ere ready to allow to him the sums 
paid under the extent against the debt due to the Plain- 
tiffs' estate. 

The affidavit further stated, that Partridge was on 
other accounts indebted to the estate of the Plaintifls, 
and had, since the bankruptcy, received various sums 
as the agent of the assignees, to an amount exceeding 
the sum of 749/. S^. lOd,; that the Plaintiffs were esta- 
blished in business, and rising in credit, and any pro- 
ceedings under the suit or process of extent, or in the 
nature of that process on the part of Partridge, would 
produce their immediate and irreparable ruin. 

' Mr. Rose in support of the motion. 

The Vice-Chancellor made the following order : ^* It 
was therefore prayed that the said Defendant, J. Par-^ 
tridge, might be restrained by injunction from applying 
for, or obtaining, any extent, or writ, warrant, or process 
of, or in the nature of, an extent, in respect of his said 
alleged debt or demand against the said Plaintiffi, 
and from enforcing or executing any extent, or any writ, 
warrant, or process of, or in the nature of, an extent, or 
other legal proceedings against the said Plaintiffs, or 
from in any manner molesting them, either as to their 
persons or property in respect of his said alleged de- 
mand ; which, upon hearing the said affidavit, and the 
six clerks' certificate, is ordered accordingly, until 
answer or further order." Reg. Lib. B. 1817* foL 121 7. 

On the 7th o( August 1818, a motion was made before 
^e Vice-chancellor, to dissolve the injunction. The 



motion was supported by an affidavit of the Defendant 1818. 
Partridgej stating, that he executed the bonds at the re- ^^^^^^^ 
quest, and solely for the accommodation of the Plain- v, 

tiffi; that in January 1813, 749/. 135- \0d. being due to P^^*^^"" 
the commissioners, an extent was issued against Par- 
tridgef under which 1156/. 125. ^d. were levied by the 
sheriff from his goods; and 120/. 195. being paid by the 
sheriff for rent and taxes due from Partridge^ the re* 
maining 1035/. 135. 4>id. were retained by him; and 
after deducting his costs and charges attending the exe- 
cution of the writ, he paid 749/. 135. 10(2. to the account 
of the commissioners ; and Partridge denied, that it was 
ever agreed that he should have, or that he ever in efiect 
had, one-fourth, or any part of the loan. 

The Vice-Chancellor refused to dissolve the injunction 
until Partridge had answered the bill, but ordered that 
the plaintiffs should be at liberty to pay the sum of 
621/. 175. 8(2. into the banking-house of Messrs. ChUds 
and Co., in the joint names of J. B. and J. A., solicitors 
for the Plaintifis, and the Defendant Partridge; and 
thereupon it was ordered that the injunction should be 
condnued until hearing or farther order; and in cas& 
the 621/. 175. Sd. should not be so paid in, within a 
month, that the injunction should be dissolved; and in; 
Oftse it should be paid in, the Defendant Partridge^ on 
putting in his answer, should be at liberty to apply to. 
dissolve the injunction. 

The Vice-Chancellor's Court being closed for the Aug.i^^ 
vacation, a motion was now made before the Lord Chan- 
cellor, on behalf of the Defendant Partridge^ for a writ 
of ne exeat regno against the Plaintiff William Whitehouse^ 
or that the order of the 2d of Jtdy might be discharged, 
and the injunction dissolved. 

Vol. III. C c In 



1818. In support of the motion, was read an affidavit of tbe 

WfliTEHausE ^^^^^^^P^^^^^^i stating, that the sum of 62 1/. 1 75. 8d. 
K had not yet been paid in, and that fViUiam Whitdumse^ 

whom the affidavit represented as the only one of tbe 
Plaintiffs of ability to pay that sum, or any part of it, 
had formed a fraudulent scheme for evading the pay* 
znent, and intended to dispose of his property and quit 
the kingdom ; and some declarations and acts indieadng 
that intention were specified. 

Sir Samuel Bomilly and Mr. Phillimore for the motioii. 

The injunction having restrained the Defendant's 

proceedings at law, the solvent Plaintiff intends to take 

advantage of that delay to go abroad with the money of 

the Defendant in his hands. The facts detailed in the 

affidavit evince that intention. A Defendant in such 

-circumstances, may obtain a writ of ne exeat regno 

without filing a bill. The Plainti£& are not entitled to 

.the injunction. An extent is certainly a summary 

^proceeding, but it is not the practice of the Court 

of Chancery to grant an injunction in every case of 


The Lord Chancellor. 

The Defendant represents himself to have paid 7001. 
BS surety for the amount of exchequer bills advaoced to 
the plaintiffs, and to be therefore entitled to the crown 
process for compelling repayment ; and the bill seeks to 
restrain those proceedings. Assuming that an injunction 
might be granted, still, according to the rules and prac- 
tice of the Court, its interposition must be governed by 
the circumstances of the case. The Vice-Chancellor 
thinking that the money ought to be paid into courts 
allowed for that purpose a month, which, if there is no 
apprehension of the party going abroad, is a reasonable 
time; but if there is an affidavit of declarations and 



threats that he will go abroad, I should pay no regard 1818. 

to an a£Bdavit denyinff that intention. Evidence of a J. ^ ■ - ' 

■^ ° . Whitebousb 

threat is that on which the Court acts, notwithstanding i;. 

denial (a) ; and reasonably ; because one who designs to *^^^™^*» 

leave the kingdom for the purpose of defrauding his The Court 

creditors, will not scruple to deny that design. dence'cfkh 

teution to go 

If the Court, having granted time for payment of out re^ird to 
money, is satisfied before the time arrives that the ^^^"^^ 
party is going abroad to prevent payment of the moneyt 
it will undoubtedly interpose ; whether by issuing a writ 
of tie exeat regnoy or by dissolving the injunction, unless 
immediate payment is made, may be a question^ 

An objection to the motion for dissolving the in* 
junction is, that it asks a reversal of the Vice-ChaiH 
cellor's order ; and an objection to the application for a 
writ of ne exeat regno is, that the sum of money which 
it seeks to secure, though due, is not yet payable ; but After an iii- 

if between the date of an order for an injunction, and j*^cd^^ •"** 

. o ' \ order for pay- 

payment of money mto court at a future tune, and the meat of mo- 
arrival of that time, there is a substantial threat that the ^^ futoe*"^ 
party who ought to pay will go abroad, the practice of time» o^ a ^ 
the Court is to order him to pay the money instanter^ or alMoad^tSo 

to dissolve the injunction. Court orden 

instant pay- 
ment or the 

In this case there certainly should be no injunction ™J>Deyjor dw- 
without securing the money. ' junction. 

Let notice of motion be given, « 

Notice having been given, the motion was now re« '^<V* ^'^^ 

Mr. PhiUimore for the motion. 

(a) Ammck v. Barklay, 8 Va. 594. Janci v. Akfhtm^ 16 Vei, 470. 

C c 2 Mr. 


1818. Mr. Wetherel and Mr. Rosej against the motion, cited 

--1~ "^ Etches V. Lance [a) and Jbn^5 v. Alephsin. (i) 

Pabtbidgb. jt^^ Lord Chancellor. 

The question is, whether, an order having been made 
for an injunction and payment of money into court 
within a month, there is reason to believe that the party 
intends to take advantage of that order for the purpose 
of defeating it? 

Whether an I recollect no instance of injunction against an extent ; 
i^^i^d" ^^^ "^"^ without entering into that general question, I should 
against pro- have felt a great diflSculty in issuing this injunction, un- 
an extent. ^^^^ the money had been secured. The crown has the 
Q^^^' ^ process of extent against all debtors, and happens not 
not^subl^ *to ^ ^® bound by that equity which binds every other cre^ 
the eqfiity of ditor to make use of his securities for those who are 
curities for secondarily liable to pay, against those who are liable 

to pay, ajgainst 

marilv^^ble '^^ present case discovers the inconvenience which 

must ensue if one department of the Court before which 
motions are heard rises, while the other continues to sit* 
I cannot re-hear the case. 

I must take this to be a decision of the Vice-Chan- 
cellor, that an injunction may be issued against an ex- 
tent, and that it was fit that the money should hi this 
instance be brought into court ; it must be understood, 

(a) 7 Vet. 417. tion; but the surety, after satis- 

{b) 1 6 Vet, 470. faction of the debt of the crown, 

(c) The Attorney-General v. becomes entitled to the crown 

Besbi/f Hardr, 378., the eighth process against the principaL 

chapter of ikr<9^a CAar/a having Anon, Savile, 50, pi. 7S. 7^e 

received a restrictiva construe- King v. Bennett, L Wightw. 1. 




therefore, that in his opinion there was at least so much 1818. 
doubt on the question of principal and surety that the ^ ^^ ^^ 
money ought to be secured, and that the undertaking ^^ 

of the assignees to allow a set-off if any thing should be PABTKroGE. 
eventually found due, was not sufficient to dispense with 
that security. An order is therefore made for payment 
of the money ; and the single question now is, whether I 
shall interfere, when the party at whose instance the 
order was made is so dealing with it as to defeat it ? 

I have no hesitation in saying that if I had granted 
this injunction, I should have ordered payment of the 
money into court. I apprehend that it was part of the 
system under which these loans were obtained, that per- 
sons becoming sureties, if the crown did not choose to 
employ the prompt remedies provided by the acts of 
parliament, should themselves be entitled to resort to 

When the application was made for a writ of ne exeat 
regnOf I was much struck by the difficulties which pre- 
sented themselves. The writ can be issued only on an 
equitable debt, with the single exception, I think, of a 
balance of account, on which an action may be main- 
tained (a); and it can be issued only on an equitable In general, 
debt then due ^nd payable. I recollect a scandalous gjpgat regno 

instance of advanta(?e taken of that rule ; a creditor ^ ^ issued 

. only for an 

having given time to his debtor from the 1st of January equitable debt 

to the 1st of July, in the last week in June the debtor ^J^aUy W 

thought proper to attempt to leave the kingdom ; and 

on great consideration this court decided that it could 

not grant the writ, {b) If, therefore, the Vice-Chancellor 

(a) And of arrears of alimony (b) See 6 Vet. 284., 7 Fes. 
decreed, Dawson v. Dawson^ 174., 14 ^^f. 361. 
7 Fes, 1 73., and many other cases. 

C c S has 


1818. has thought proper to render the debt no longer de- 

W^TBHoubJE ^*°^^^'® ^^ l^w until there should be disobedience to 
V. his order, and that order renders it not demandable in 

equity before the end of a month, there would be great 
difficulty in extending this high prerogative writ, which 
has been already extended far enough, to embrace this 

I shall, therefore, consider the application as made 
not for a writ of ne exeat regnoy but for an order that 
the money which was to have been paid within a month, 
may be secured by earlier payment, or that the in- 
junction may be dissolved. On the present occasion I 
must take the order of the Vice-Chancellor to be right, 
for I am not now called on to re-hear it. 

It is obvious that there is a degree of inconvenience 
very unintentionally introduced by the circumstance of 
both courts not continuing their sittings. The business 
of these departments of the court cannot be carried on, 
unless an opportunity is afforded to the suitors of con- 
veniently stating to each the difficulties that occur in 
the execution of its orders ; and there ought there- 
fore to be some reasonable interval between the last 
day of the sittings, and the departure of the person 
holding them. I cannot attempt to set right the order 
of the Vice-Chancellor, but must consider it to be 
correct ; recollecting, however, that it is an order which 
assumes that this court may grant an injunction against 
an individual whom the legislature has authorised to sue 
out an extent, by giving to him that remedy which the 
crown itself would have had, and, in the first instance, 
would have taken, against persons who as among them- 
selves should be considered as primarily liable; and 90 
iar I may venture to say it is a very delicate question 
whether an injunction should be issued. Assuming the 



propriety of the Vice-Chancellor's order for an in- 1818. 
junction and payment of the money into court at the ^^ jj^ \^ 
time specified, the question is, whether the subsequent v. 

idMavit satisfies me that the PlaintiflS; should not now ^^***'">*«' 
be allowed for that payment a time so long as that 
gmnted, and, as I must take it, properly granted, in the 
first instance ? 

The Court ought to feel no inclination to extend the ^plication 
application of the high prerogative writ of ne exeat ^egeS^gno 
regno; I think that it has been granted on grounds not to be ex* 
which ought not to be enlarged by subsequent decisions. 
If men will not take from their debtors security enabling 
them to proceed at law, they must abide by the con* 

I am cleariy of opinion that the present circumstances 
of this case require more prompt payment Let the in- 
junction be dissolved, unless the money is paid into the 
banking-house on the 20th of this month ; and if not 
being then paid, it is afterwards raised by virtue of the 
extent, I think that it becomes me to show so much re- 
spect for the order of the Vice-Chancellor as to direct 
that it shall in that case also be secured. 

^' His Lordship doth order that the Plaintiffs, on of 
before the 20th nay of August instant, pay the sum of 
621/. 175. Bd. mto the banking-house of Messrs. Cktlds 
and Co., Temple Bar, London, to the joint account of 
J. B. and «7. A., &c. ; and in default of the plaindfis pay- 
ing the said sum of 621/. 17^. Sd. into the said banking- 
house as aforesaid by the time aforesaid, it is ordered 
that the injunction granted in this cause to restrain the 
Defendant J. Partridge from applying for or obtaining 
any extent, &c., be dissolved without farther motion ; and 
the defendant J. Partridge is in that case to be at 

C c 4 liberty 







liberty to proceed under the extent for the said siim of 
621/. 175. Sd., or for so much thereof as shall not have 
previously been so paid into the said banking-house; 
and it is ordered that the Defendant J, Partridge -forth- 
with pay what he shall recover under such extent into 
the said banking-house, to the said joint account of 
J. B. and J. A." Reg. Lib. B. 181 7. fol. 1620. 

^ug, 1. 

Aug. 18. 

A testator 
having direct- 
ed his trustees 

Ejc parte CHAD WIN, in re CHAD WIN. 

jyiLLIAM ROE, by his will dated the 11th of 
January 1804, and duly executed to pass real 
and executors, estates, after directing that all his just debts, and fwieral 

Aiccr sale Oi 

his estates, ^nd testamentary expenses, should be paid out of his real 

to stand DOS- ^^^ personal estate, devised and bequeathed to George 
sessecl or toe ».iii* 

money arising Chadwin^ his brother-in-law, and Thomas Dakin^ all bis 

up^'tt'usL ^' real and personal estate to tliem, their heirs, &c, upon 

in the first 
place, to in- 
vest 400/. in 
trust for his 
wife for life in 
bar of dower, 
and afler her 
death for 
W.C; and 
upon farther 
trust, out of 

trust to sell, with a direction that their receipts should 
be sufficient discharges ; and upon farther trust, and he 
directed his trustees in^he first place, to place out at in- 
terest the sum of 400/., on mortgage or government 
security, the interest to be paid to the testator's widow 
half-yearly during her life, in bar of dower ; and imme- 
diately afler her decease he bequeathed the said sum to 

the residue of his nephew William Chadwin; and upon farther trust, out 
the money, to 
invest 400/. in 

trust for J. R, for life, and af^er his death for his children ; and upon farther trust 
to pay other sums to persons named ; and having bequeathed the residue of his 
estate to W, C, ; and the only acting executor having made no investment on the 
trusts of the will, but having paid interest on the two sums of 400/. to the respective 
legatees, and applied the assets to his own use, and afterwards become bankrupt ; it 
was held, that by that dealing the two l^tees had waived whatever priority the 
will might have given to them; and the dividends payable on the whole sum proved 
under the commission against the executor in respect of the testator's estate, was 
divided among the pecuniary legatees and the residuary legatee, in the proportioa 
of the amount of their legacies, and of the reudue, as it was computed at the death 
of the testator, with interest on each. 




of the residue of the money to arise from the sale of his 
estate and effects, to discharge all his debts, funeral and 
testamentary expenses, and the expenses of the trust, 
and subject thereto, on trust to place out at interest the 
fiulber sum of 400/. upon mortgage or government 
security ; the annual interest to be paid to his brother 
Jclm Roe during his life, and immediately after his de- 
cease, the said sum to be called in and divided among 
the children of John Roe equally; and on farther trust 
out of the residue of the money to arise from the sale, 
to pay to each of the testator's nephews 100/^ and to 
each of his nieces 50/., when they should attain twenty- 
one; and the residue of his estate he gave to his nephew 
WiUiam Chadwin^ and appointed George Chadwin and 
Thomoi Dakin executors. 


Eg parte 




Dakin having renounced probate, the will was proved 
in March 1804, by George Chadwin^ who sold the 
testator^s estates, and paid his debts and funeral and 
testamentary expenses ; and instead of investing the re- 
sidue according to the trusts of the will, employed it in 
trade, and in the purchase of a real estate for his own 
benefit Interest on the sum of 400/. was paid to the 
testator's widow to the 25th oi March 1812, and interest 
on the like sum was paid to the testator's brother John 
Bee to the same time; and two of the testator's nieces 
received the legacies bequeathed to them. 

In July 1811, a commission of bankrupt was issued 
against George Chadwin the executor. 

Soon after the bankruptcy, WiUiam Chadwin^ the 
nephew and residuary legatee of the testator, presented 
a petition, on which an order, dated the 15th oijIprU 
181S, was made, directing a reference to the commis- 
sioners to take an account of the assets of the testator 



1818. possessed by the bankrupt, and how lie had applied 
^_" -JV a»d disposed thereoT, and what remained due firom him 
Csr^HMmr^ on aocount tfaerec^ at the time of the bankruptcy, and 
qJ^^IL^ the petitioner was to be at liberty to prove sQoh sum as 
dKNild be £Mind due upon the account directed; and it 
WAS ordered that the assignees should pay the respective 
dividends which diould be dedared npon the amount 
of such proof^ (the amount of such respective dividends 
so to be paid from time to time, to be verified by affi- 
davit,) into the Bank, with the privity of the Accountant- 
Oeneral of the Court of Chancery, in trust in this matter, 
to be plaoed to the account of the personal estate of the 
testator, subject to farther order; with liberty for the 
petitioaer and ail other parties interested under the said 
testator's will, to apply as they should be advised ; and 
it was ordered that the costs of the application should 
be paid to the petitioner. 

By virtue of this order the petitioner proved a debt 
of S185/. 5s. ll^L under the commission ; and two din** 
dends thereon, amounting to 1313/. 18^. 7d»y were paid 
into the Bank. 

William Cbadmn then presented ismotber petiUon^ 
stating that the testator's widow and her second husband 
had assigned to him her interest in the sum of 4fOO/.; 
that the testator's brother John Roe was still living, 
having four children, three of whom were infants; that 
.Tliomas Roe^ another brother of the testator, was also 
living, having one child, an infant ; that the petitioner 
was the eldest son of Elizabeth Chadwith the sister of 
the testator, who had five other children, the testator 
having no other brother »or sister; and that the pe- 
titioner had thus become entitled to the present in- 
terest in the whole of the legacy of 400/., and also to 
the legacy of lOO/i as one of the testator's nqihews, and 




to all the residue of the testator's estate after payment of 
his debts and legacies ; and submitting that the legacy 
of 400/* was by the will a primary charge on the pro- 
duce of the sale of the testator's estates, and that the 
petitioner was entitled to be paid the same in full^ out 
of the sum of 1313/. 185. 7d. 


The petition prayed, a declaration that the petitioner 
was entitled to be paid the legacy of 400/., with interest, 
from the 25th of March 1812, in full, and payment 
tlieneof, out of the sum of 131 S/. 185. 7d.f and an oooount 
of what was due to hun for principal and interest, and 
paymeot of the residue of that sum among the petitioner 
and the other legatees, according to their several priori- 
tieSf in part satisfaction of their legacies ; or, if the Lord 
Cbaneeilor should be of opinion that the petitioner was 
act entitled to be paid the sum of 4O0I. ia full, then that 
an account might be taken of the dear amount of the tes* 
tator's estate at the time of his death, and of the amount 
of the dear residue that would have remained of that 
estate, after paying all his debts, funeral and testament- 
ary expenses and legacies, if the same had in feet been 
paid, and that the several legacies given by the will, and 
tbe amount of the said residue, might be ordered to 
abate proportionally ; and that the sum of 131 S/. 185. 7ff* 
aaj^t be apportioned among the petitioner and the se- 
veral other legatees, in proportion to the amount of their 
several legacies, and of the said residue. 

The Master, on another petition by the same pe« 
titioner, having report^ that all the debts of the testator 
were paid, in March 1817 WiUiam Chadwin presented 
a farther petition, praying the confirmation of that re- 
port, and that the original petition might be &rtfaer 



1818. The case was argued by Sir Samuel BomUb/ aiid 

*- - ^' Mr. Stephen^ Mr. Homcj and Mr. i?05^. 


• _ 

C^iLDwni '^® ^^^^ ^^^ were, Di/ose v. ij^05tf (a), Fonnereau v. 

^— Poyntz (i), and Humphreys v. Humphreys, (c) 


1818. 2%^ Lord Chancellor. 

This petition prays payment, not out of the testator's 
estatCf but out of dividends declared on the amount due 
to the testator's estate from the party who has become 
bankrupt, and claims a proportionate abatement among 
the pecuniary legatees and the residuary legatee. 

The first part of this petition, which prays that the 
legacy of 4002., the entire mterest in which the petitioner 
has acquired by assignment from the testator's widow, 
may be paid in full, preferably to all the other l^^acies,^ 
is founded on the passage in the will, directing the trus- 
tees, ^^ in the first place," to invest that sum ; and on 
the expressions wliich precede the subsequent bequests, 
^^ upon further trust, out of the residue of the money," 
to pay debts and funeral and testamentary expenses, 
and ^^ subject thereto and on trust," to invest other 
sums ; and it was insisted in the argument, that these 
expressions manifest an anxiety in the testator, that the 
sum to be invested for the benefit of his wife should 
have priority even over the payment of his debts. Each 
l^acy in succession is given out of the residue ; which, 
it has been properly contended, means what remains 
after the prior application of the fund* 

Under the ulterior bequests in&nts are interested^ 

(a) 1 P. W. 505. (5) 1 Bro. C. C. 47S. (c) S Cox, 184. 




Bnd a considerable question arises how &r their rights 
can be bound by an order on a petition in the bank- 
ruptcy of the executor ; such an arrangement may be 
beneficial to them, but it appears to me that it can hardly 
be said that the Court can so bind them. The question, 
whether by reason of the deficiency of the estate^ not 
only the pecuniary legatees should abate among them- 
selves, but a computation should be made of what would 
be coming to the residuary legatee^ and he should be 
considered on the footing of a pecuniary legatee to that 
amount, and an abatement be made among them all, 
is extremely difficult, and ought to be made the sub- 
ject of a bill, did not the small amount of the fund 
render it adviseable to obtain a decision in this way, 
rather than to institute a suit^ which would absorb the 


Bm parU 

, If there had been assets for payment of all the legacies 
no question could have arisen; the residuary legatee 
could not in that character have objected to the pay- 
ment of the antecedent legacies, but must have been 
content with whatever might happen to be the residue, 
and while there was sufficient to satisfy the pecuniary 
legacies, there would have been no reason for discussing 
tfadbr priorities. 

A question might have arisen involving no consider- 
ation of the consequences of the deoastavU which has 
been committed. Supposing the testator's estate insuf- 
ficient to satisfy all the legacies, the question would then 
have been, the funds left by the testator not being ade- 
quate to pay all that he intended to be paid, did he in- 
tend that the first mentioned sum of 400/. should be 
paid in priority to all the rest, and each of the succes- 
sive legacies in priority to those which follow it? But 
the case which I have supposed diffisrs entirely firom 


m re 


1^1% the present^ assuming an estate unaffected by devastavit^ 
-.7^ ^ aiid to be distributed according to the effect of the 
Chadwin^ testator's will ; whereas, in the events that have occurred, 
the executor instead of applying himself to the due ad- 
ministration of the testator's estate, paying the legacies 
according to their priorities, if there were priorities, and 
making proper investments, paid interest to the testator's 
widow, and to one of his brothers : and that sort of 
transaction introduces another question not touched by 
any prior decision, whether the legatees have not so 
dealt with this executor in regard to their respective 
l^acies, as to have made him their debtor for each 
respectively; and whether the proper proof under the 
commission would not have been, not one entire proofs 
but subdivided proof for the respective legacies ? 

Assuming that in this case the latter ingredient is 
not to be regarded, the Court is to consider what the 
law is where, there being both pecuniary legatees without 
priorities among themselves, and a residuary legatee^ 
and by reason of the devastavit of the executor, the 
estate having become insufficient to pay all the pecuniary 
legacies, the residuary legatee insists that the estate at 
the death of the testator being sufficient, and there then 
being a residue of 2000/. or 3000/., he is entitled to 
rank as a legatee of that sum, and to represent that 
the executor being a debtor to the aggregate body of 
lii^()ees, he is to be considered a creditor for the 
i^idue ? 

In the first case cited, Dyose v* Dyose {a\ Lord 
Cawper in the instance of deficiency by a devastavit^ 
held that he was bound to consider the residuary legatee 
EST entitled to something, if the state of the assets at the 

(•) 1 P. W. 50S. 



detth of the testator left a residue ; aod that the wreck 
of the estate which could be recovered after the de" 
vastavU^ waa diTisible not among the pecuniary l^atees 
aloDc^ but among all the l^atees according to the pro* 
portion of their legacies, and allowing the residuary 
kjgatee to claim as a legatee of the amount of the residue 
m it stood at the death of the testator. 



JSr farU 

m re 

That case came under the consideration of Lord 
TJnurUm in Fonnereau y. Poyniz (a), where the prindpal 
qnestioB related to the admissibility of parol eridence ; 
md adverting to the argument which had been deduced 
from Lord Competes decision, Lord Thurlam declared 
that he could not agree to the law of that case, and de- 
precated the doctrine, that whenever a testator gives a 
residue he is to be understood as intending to leave a 

In Humphreys v. Hun^kreys (b) Lord Thurlaw did 
not content himself with expressing dbapprobation of 
the doctrine in Dyase v. Dyose, but seems to me to have 
decided against it; for in that case the residue had been 
dirainiriied, not by the act of the executor after the death 
of the testator, but by the act of the testator alone; and 
Lord JTiurlam remarks, that if the inference there at- 
teflq)ted to be drawn from Lord Ccfwper^s decree were 
ODrrect, the inquiry into the state of the assets should 
have referred to the date of the will, and not to the death 
of the testator. 

Lwd Thurlaw may, therefore, be considered as hav- 
ing condemned the decision in Dyose v. Dyose (c) ; and 

(a) 1 Bro, C.C 473., seep. 478. ation of that case has been ap« 
(&)2Car,l84. proved by Sir WWam Orani^ 

(i^ L(»4r^«i;^ofn^a«oncUauu Pa§gv.LeafingweU^l9^Vi9^Am, 





S^ parte 


in re 

if there were no question in the present case but this, 
whether the residuary legatee can come in competition 
with the pecuniary legatees, Lord Thurlaa/s authority 
would be opposed to the claim of the residuary legatee. 

A case in which after the death of the testator, the 
executor deals with the property as he thinks fit^ there 
being no accession to tiiat dealing on the part of those 
for whom he is trustee, is widely different from the pre- 
sent case, in which those who might every day have made 
demands on the executor, have dealt with him as a person 
having in his hands so much of their money, and have 
from time to time received from him interest on various 
sums to which they are respectively entitied. Socfa^ 
transactions give rise to a question which requires much 
consideration, whether the legatees have not tberdby 
made the executor severally their debtor. If the testa- 
tor's widow, whom the petitioner by her assignment re- 
presents, had require^ the executor in the first place to 
separate the 400/. from the bulk of the assets, and in- 
vest it in a mortgage, and that course had been adopted, 
no question could have arisen between the first legatee 
and the rest, on the effect of the devastavit Instead of 
that, the executor is permitted by the widow and the 
other legatees, to retain the legacies, paying interest for 
them ; and the question then arises, whether, supposing 
Lord Thtarlono right, these supervening circumstances in 
the conduct of the respective legatees vary the case, and 
lay a ground for the doctrine of Dyose v. Dyose^ not on 
die reasoning there suggested, but on the principle that 
the widow and the adult legatee having received interest 
on their legacies, and the residuary legatee having 
been entiUed to receive the fruits of his legacy, if there 
were any, a mixed case exists, which renders it rea* 
sonable to declare that this sum of 1 300/. shall be di- 
vided among the legatees, as the SOOO/. would have 



been divisible if the executor were solvent? Whether 
it is not most just to hold that there is an end of the 
will as to priorities, and that arrangements having been 
made by all the legatees, the fund in the hands of the 
executors is applicable for the benefit of all according to 
-those arrangements, as they may be considered to have 
rendered the executor the debtor of each of the legatees 
separately ? 



Ji^x parte 

til re 

After anxious and frequent consideration, I know no 
better view of this case. If the parties are content with 
it, I venture to say that it is for the benefit of the in* 
fimts that it should be so considered ; but if the parties 
are not content, I ought not to be satisfied, feeling that 
this js as difficult a case as I ever had to deal with ; 
and I must put them to file a bill. 

Mr. CuUen {Amicus Curue) observed, that the proof 
i^resented the testator's estate, and that the total was 
angmented by the amount to which the residuary 
legatee was entitled. 

The Lord Chancellor. 

I am of opinion that the residuary legatee ought to 
be considered a creditor for the amount of residue at 
the death of the testator. This view of the case admits 
him on a principle different from that adopted in Dyose 
V. Dyose, and excludes him from priority in respect of 
the 400/. 

The following order was made : 

I do order that it be referred to Master Stephen^ the 
master to whom this matter has already been referred, 
to ascertain the amount of the clear residue that would 
have remained of the testator's real and personal estate^ 

Vol. III. D d after 




jKr parte 

in re 
Chad WIN. 

after paying all his debts, funeral and testamentary ex* 
penses, and legacies, if the san>e had in fact been paid ^ 
and I do declare that the several legacies given in and 
by the said testator's will, or such of them as have not 
been paid, and the amount of the said residue, ought 
to abate proportionally; and I do order, that the 
said Master do apportion the residue of the sum of 
1313/. 1 85. Id. now standing in the books of the Go- 
vernor and Company of the Bank o(Eng!and^ in the name 
of the Accountant-General of the Court of Chancery, to 
the credit of this matter, tl\e account of the personal 
estate of the testator Jfm. Roe^ after payment of the 
costs hereinafter directed to be taxed, among the pe- 
titioners Wm. Chadwin^ Thos. Itoe, John Hoe an in&nt, 
George Roe an infant, and Ami Roe an infant, childreiv 
of the testator's brother, John Roe ; and between Eliza^ 
heth Roe an infant, daughter of the testator's brother, 
Thos. Roe ,- and between George Chadwin^ Elias Chad- 
mn^ and Betty Chadwifi^ three of the children of the 
testator's sister, Elizabeth Chadwin^ according and in 
proportion to the amount of their said several legacies 
and interest, including the aforesaid legacy of 4*00/., 
the interest whereof is given for the said testator's 
widow, and aftenvards assigned to the petitioner Wnu 
Chadwin as aforesaid, and of the residue and interest of 
the testator's estate and effects ; and that what the said 
Master shall certify to be the proportion of the petitioner, 
Wm. Chad'wiii^ be paid to him ; and let what the Master 
shall certify to be the proportion in respect of the in- 
terest of the legacy of 400/., given to the testator^s 
brother, John Roe^ for life, be paid to him ; and let the 
proportion of the principal thereof be carried over .to 
an account, to be called the account of the said John 
Roe and his children, and be laid out in the purchase of 
Bank Sjper cent, annuities, and the dividends paid to the 
said John Roe during his life, witli liberty to apply 



upon the death of the said John Hoe ; and let the pro- 181 8. 
portion of each of them, the said Wm. Chadwin^ Tfios. S " ' 

* , jBjr parte 

JRoe^ Elias Chadwin, and Betty Chadwin, be paid to them Chaowin, 
respectively by the said Accountant-General, out of the q^^^i^ 
residue of the said sum of 1313/. 18^. 7^.9 after payment 
of the costs hereinafter directed to be taxed : and I do 
order that what the said Master shall certify to be the 
proportion of each of them, the said John Roe^ George 
Hoey Ann Soe^ and Elizabeth Boe, the infants, of the 
residue of the said sum of 1313/. ISs. Id. as aforesaid, 
be carried over by the said Accountant-General to their 
respective accounts ; and let the same, when so carried 
over, be laid out in the purchase of Bank Sper cent. 
annuities ; and I do order that it be referred to the said 
Master to tax, as between solicitor and client, the peti- 
tioner's costs which were directed to be paid to him by 
the order of the 15th day of April 1813, in his said 
petition mentioned, and also the petitioner's costs of and 
relating to this matter, and incident thereto; and let the 
said Master, in like manner, tax the costs of the other 
legatees, of and relating to this matter, and incident 
thereto ; and let such costs, when so taxed and ascer- 
tained, be paid by the Accountant-General, out ot tne 
said sum of 1313/. 185. Id, to the solicitors for the re- 
spective parties, that is to say, &c.; and for the pur- 
poses aforesaid, the said Accountant-General is to draw 
upon the Bank, &c. with liberty for the several parties 
to apply to me in this matter as they shall be advised ; 
and this, my order, is to be drawn up and entered with 
the register of the Court of Chancery.-^Orders in Bank- 
ruptcy, U7. fol.236— 242. 

Dd 2 



Aug. 17. Ex parte SOUTH, in the matter of ROW. 

A trader hav- QEORGE ALDEBSON and Thomas Aldenon, being 
creator an creditors of Jane Sow for goods sold and delivered 

executo" of ^ ^^^ amount of 528/., and Jane Row being a creditor 
her debtor to of the estate of John Fishy deceased, for work done prin- 
to^he cre^ cipally with the materials sold to her by G. and T. Alder^ 
ditor, and the gon^ she, in order to satisf}^ part of her debt, gave to 
ing received them her draft on F. Klein^ Esq., the acting executor 
StoiSit*"'* of Fish, in the form following: « 417/. 65. Sunbury, 
until the assets 5th August 1813. Please pay Messrs. G. and 71 Alder-^ 

should enable^ *^ °^ order, 417/. 65. as part of the amount due to me 
him to pay for plumber's work done for the late John Fish, Esq. -— 

tract debts^ To F, Klein, Esq., Lower Tooting, SunyJ' 

and the trader 

having be» 

come bank- The draft was immediately presented to Klein by the 

nipt before solicitors of G. and T. Alderson, but Klein not being 
payment, the ' ^ ^ 

creditor was prepared with assets to discharge the simple contract 
entitled to ^ebts of the testator, could not accept it payable at any 
receive the certain period, but retained it to be paid when there 
order from the ^^^Id be funds of the testator applicable to the payment 

executor, not. of debts of that class. 


a subseouent 

anrestofthe j^ consequence of the delay in the payment of the 

draft, G. and T. Alderson afterwards arrested Jane Bam 
for the amount of their debt. 

On the 17th o( November 1814, a commission of bank<- 
rupt was issued against Jane Row, and on the 17th of 
December 1814, Thoinas Alderson proved a debt of 
530/. IS5. 6d. under the commission; stating in his 
deposition that he held the draft as a security; and 
Thos. Alderson and James South were elected assignees. 



Klein having declined to pay the draft without the 1818. 
Chancellor's order, the Vice-Chancellor, on the petition ^ ^ ' 
of G. and T. AldersoUj ordered that the sum of 417/. Ss., South, 
the money due from Klein on account of the estate of "* ^® niatter 
Fisky might I)e paid to or on account of G. and T. Alder- Row. 
ion^ their proof of debt being reduced pro tanio. (a) 

Jamez Souths the other assignee, being dissatisfied with 
this order, presented a petition of rehearing, insisting 
di8t the 417/. 6s, ought to be paid to the assignees as 
part of the general estate oiJane RaiD* 

The case having been argued before the commence- 
taent of the present year, the Lord Chancellor now 
gpive judgment 

. The Lord Chancixlob. 

It has been decided in bankruptcy, that if a creditor 

pves an order on his debtor to pay a sum in discharge 

of his debt, and that order is shown to the debtor, it 

binds him ; on the other hand this doctrine has been 

brought into doubt, by some decisions in the courts of 

law, who require that the party receiving the order 

should in some way enter into a contract, {b) That has An assignment 

of a debt 


been the course of their decisions, but is certainly not ^^^ ^^ 

the doctrme of this Court. «>«• it« Talidity 

in equity, a 
contract with 

In this case the executor of the debtor, instead of re- ^^^ debtor, 
turning the draft to the persons who presented it, re- 
tains it, with a declaration that he cannot tlien accept 
it payable at any particular time, but that it shall be 
paid whenever the state of the testator's assets enables 

(a) £x parte Aldenon, 1 ff. BL S59. Legh v. Legh^ 
1 Madd. 55. iB.^P. 447; T^Oock v. -Hflr- 

{b) See Israel v. Douglat, ris, 5 T.R, ISO. 

D d 3 him 


181 8- him to pay simple contract debts, and that in the mean 
J! ^ ^ time he will hold it as a charge. I am of opinion that 
South, the Vice-Chancellor was right in considering this not 
in e^matter ^ ^^ absolute, but as a conditional acceptance of the 
Row. order ; for this document, though not in the form of a 
bill of exchange, is rather an order for payment of 
money than any thing else ; and I think that the act of 
the executor in holding the order until the assets 
should enable him to make payment, is such an acknow- 
ledgment as takes this case out of the decisions in the 
Court of King's Bench, supposing them such as I have 

Then it is said that the Aldersons waived the benefit 
of their security. After full consideration, I think that 
the Vice-Chancellor was right also on this point. This 
draft was given ^ a security ; the executor retained it in 
his hands as a charge on the assets, but could not apply 
the assets in payment until they were in a state to be 
properly so applicable ; whether they would ever be so 
applicable was a question; in all events the time was not 
yet arrived ; and the debt, therefore, could not be con- 
sidered as in any way discharged, nor the other remedies 
of the creditors affected, except that if they resorted to 
those remedies, the executor would be liable to pay to 
them so much only as remained unsatisfied. The arrest 
itself was no waiver : had it been accompanied by an 
agreement to make no farther demand on the assets, the 
effect might be difierent ; but if it proceeded no farther 
than arrest, and there was no other consideration, I 
think that would not be sufficient. 

The order of the Vice-Chancellor is therefore right 
Petition dismissed, «— Orders in Bankruptcy, 147« 
fol. 227. 228. 



BARRITT V. BARRITT. ifov. 6, 7. 

^THHE first order for time to answer obtained by the Attachments 
Defendants having expired on the 23d of Augtisf, want of an- 
on the 27th of that month the Plaintiff's clerk in court swer, after in- 
timation that 
sent to the Defendant's clerk in court a note intimating they, would be 

that he had peremptory orders to attach at the first ^^'f ^ ^^ '^® 

^ r J ^ next private 

private seal. On the following day the Defendant's seal, and no- 
solicitor left a note with the clerk in court of the Plaintiff, ^j^^ pr^^ted 
purporting that they would obtain an order for farther for an order 
time ; and on the 29th of August, a petition for three tj„,g ^^ aside 

weeks farther time was presented to the Master of the for irregu- 
•n n 1 • /• . . 1 T^i • larity, due 

Kolls, and notice oi its presentment given to the Flam- diligence hav- 

tiff 's solicitors. The petition was answered and returned I°8 been used 

^ to obtain the 

on the 3d of September^ and an order was bespoken from order, but 

the registrar's office, and after applications on the 7th no^commu^^^^^ 

and 8th, which were not successful by reason of the cation having 

absence *from town of one of the officers, was obtained circumstances 

on the 15th of September, and having been entered on which occa- 
the next day, was served on the Plaintiff's solicitors. 

On the 5th of September, attachments for want of 
answer were issued against the Defendants, and exe- 
cuted on the 12th. 

A motion was now made that the attachments might 
be set aside for irregularity, and that the Plaintiff's so- 
licitor might be ordered to pay the costs« 

Mr. Hart for the motion. 

Sir Arthur Piggott and Mr. Spence against the motion. 

D d 4 The 


1818. The Lord Chancellor. 

Barbitt The first order for time having expired, the Defend-* 

Babaitt^ ^^^ became subject to an attachment; but it is clear, 
that, according to the established practice, if an attach- 
ment is not issued before a second order for time has 
been obtained, it is too late to complain of that contempt, 
vhich may be said to have existed between the expir- 
ation of the first order and the date of the second. I go 
farther, and say, that if the Plaintiff, from courtesy, de- 
clines to issue an attachment, intimates to the Defend- 
ant that an attachment will be issued unless he obtains 
another order, he puts it on the Defendant to take mea- 
sures for obtaining the order, and cannot complain un- 
less he fails to obtain it in due time. 

These remarks dispose of the question of irregularity. 

On the question of costs, much will depend on the bona 

Jides with which the parties acted, in insisting that due 

diligence had not been used for obtaining a farther 


K09. 7v The Lord Chancellor. 

The Plaintiff having filed a bill for relief, the Defend-* 
ant obtained an order for time, which expired on the 
23d of Augustj and on that day, according to my under- 
standing of the practice, it was competent for the Plain- 
tiff to obtain an attachment against him for want of an 
answer. Without in all respects condemning what is 
called the courtesy of the Court, I cannot help thinkuig, 
that it sometimes occasions more expense than it saves. 
According to this courtesy a paper was handed to the 
Defendant, mtimating that an attachment would be sealed 
against him at the next private seal : on the opening of this 
case it was represented that the notice contained the words 

'^ unless 



«* unless an order is obtained for farther time;" that re- 
presentation is found to be erroneous ; but I consider 
the error immaterial^ because a notice of this kind is 
neither more nor less than an intimation that an attach- 
ment will be issued if the parties can issue it, which means, 
unless in the interval an order is obtained ; ibr after an 
order the attachment cannot be issued. The conse- 
quence is, that the person giving this notice must be 
understood as intimating his intention not to issue an 
attachment if an order is obtained for time ; and, there- 
fore, that he will not apply for it if due diligence is used 
to obtain the order. 

IB 18. 

On the 28th of August notice was given to the Plain- 
tiff's clerk in court that the Defendant would obtain an 
order for farther time ; on the following day a petition 
for three weeks farther time was presented to the Master 
of the Rolls, and there can be no doubt that, on that 
petition, the order, which was matter of right, would be 
obtained ; on the same day, the Plaintiff's clerk in court 
was informed that the petition had been presented ; on 
the 5th of September attachments were issued. The 
Plaintiff, therefore, obtained the attachments after he 
had received notice of a petition on which, of course, 
an order would be obtained that would prevent their 
being issued ; and if they had been executed forthwith, 
without doubt the Court would have set them aside as 
issued against good faith. 

I think that the question of costs depends almost en- 
tirely on this view of the case ; whether, after the answer 
of the Master of the Rolls to the petition had been ob- 
tained, on the dd of September^ it was incuml)ent on the 
person who obtained it to give intimation to the Plain- 
tiff's derk in court, that he bad done what on the 29th 
q{ August he had promised to do; or whether, on the 








other hand, it was the duty of the PlaintifTs agent to 
make uiquiry. Before the attachments were executed 
the Plaintiff waited from the 29th of August to the 16th 
of September, without a word of intimation what had 
been done. If one party, therefore, was too hasty in 
issuing the attachments, the other failed in not informing 
him of the circumstances which occasioned delay in oI>- 
taining an order, without a due application for which the 
attachments might be properly issued. The attachments 
must be set aside for irregularity, but without costs. 


His Lordship doth order that the said attachments 
be set aside for irregularity." Reg. Lib. A. 1818. 
fol. 306. 


Ex parte PARTRIDGE and Others. 

Order direct- 
ing taxation 
Ota Bolicitor'f 
bill for busi- 
ness done in 
the court of 
great session! 
the Court not 
assuming ju- 
risdiction for 
that purpose 

/^N the 21st of March 1817, the Master of the Rolls 
^^^ ordered (in the ordinary form of a reference for 
taxation), " that it should be referred to Mr. CampbeUj 
one, &c, to tax the bill of Charles Bromi, of Cardiff, in 
the county of Glamorgan, gentleman, attorney at law, 
and one of the solicitors of this court ; and in order 
thereto the said parties were to produce before the said 
Master, upon oath, all books, papers, writings, and 
vouchers in their custody or power, relating thereto, or 
any of the items or charges therein, and were to be ex- 
amined upon interrogatories, as the said Master should 
direct, who was to make unto both sides all just allow- 
ances; and the said parties were, according to their 
submission, to pay to Charles Brown what should be 
reported due to them on such taxation ; and thereupon, 
or in case it should appear that the said Charles Braam 



was overpaid, he was to deliver up to the said parties, 1818. 
upon oath, all books, papers, writings, and vouchers in ^TC^ 
his custody or power, belonging to the said parties, and Partridob. 
was to refund such overplus ; and it was ordered, that 
all proceedings at law against the said parties, touching 
the said bill of fees and disbursements, should be staid, 
until after the said Master should have made his report." 

On the 7th dijune 1817, a motion was made before 
the Lord Chancellor, to discharge the order of the 
Master of the Rolls. The facts of the case, and the ar- 
gument on the application, appear in Mr. Merival^s 
report, (a) 

On this day the case was again mentioned by Mr. 
Blake for the solicitor. 

77ie Lord Chancellor. 

This Court does not tax the bill of a solicitor for 
business done in the court of great sessions ; but if the 
solicitor, having possession of papers which this Court 
orders him tq deliver up, is entitled to a lien on those 
papers for business done in the court of great sessions, 
taxation is then directed, as incidental to the jurisdiction 
for compelling delivery of the papers. That distinction 
reconciles the cases. 

The order must be discharged. 

Order discharged. Reg. Lib. B. 1818. fol. 266. 

(a) 3 Men 50a 





June 2 J« 

July 1. 8. 

Nov. 9, 10. 15. 

Jan. 18. 
Teh. 27. 
June 29. 
July 27. 
^ti^. 16. 

1821, Jtfii^26. 


npHE bill, filed on the 28th of J;7n7 1809, stated, 
that Colonel Harry Gordon^ late of the island of 
Grenada^ being seised of some plantations in that island, 
and in America^ some of which were charged with a 
mortgage for S550L and interest, by his will, dated the 
1st of April 1776, devised all his said plantations to 
his son Peter Gordon^ since deceased, and his heirs male, 
and gave to each of his three sons, namely, the Plaintiff 
An agreement ^^^ Gordon^ his second son Adam Gordon^ the De- 
betweentwo fendant James Gordon^ and his daughter Hannahj 

younger of certain pecuniary legacies ; and if Peter Gordon should 

whom dis- 
puted the legitimacy of the elder, for a division of the family estates, resdnded 
after a lapse of nineteen years; the legitimacy of the elder being established on the 
trial of an issue directed, and the younger brother having been apprized at the 
time of the agreement of a private ceremony of marriage which had passed between 
their parents, wid not havmg communicated that fact to the elder, and not pos^ 
sesdng a l^al power, on the supposition of the elder brother's illegitimacy, to 
secure to him w benefits stipulatea in the agreement. 


(a) Cited 2 Bligh, 348. The following cases, on the con- 
struction and performance of agreements, are extracted 
from MSS. in the possession of the £ditor. 


Pasch. 1634. 

A ^ft of a Mr. Andrew Gray^ a l^nch- 

rooiety of the ^^ ^^ ^^^ j^^^^ Temple, hav- 
donors goods, ... ,, . 

to be enjoyed '"g ^^^ daughters, and having 

after hb concluded a marriage for the 

death, affects ^^^^^^ ^^^^ j^ j^ 

those only of '» 

which he was ^^y <>■ all nis goods and 

then pos- household stuff*; and the 

•^•*®"* other moiety to his other 

daughter, to have them after 

his death. Those only pass 
which are in specie at the 
time of the gift; and if any 
of them be lost, decayed, or 
changed, and others bought, 
and brought in their place, 
they do not pass in law or 
equity. — MS. 




die without heirs male, be gave his estates, so charged, 
to his younger sons and their heirs male successively, 
the dder claiming before the younger, with ulterior 

remainders ; 



2Sd November. 29 Car. 2. 1677. 



The Defendant having 
been long since arrested for 
J pj^ 1000/. at the suit of J. 5., 
■od the Plaintiff was so kind to 
epro- iiiin as to lay down the mo- 
ney for him ; whereupon, in 
requital of this kindness, the 
Defendant entered into arti- 
cles with the Plaintiff to set- 
tle upon him all his real and 
personal estate, which he 
had or should have, except 
8000/. (i) Upon these arti- 
cles a suit was commenced 
in Chancery in the year 1664, 
and a decree made for the 
Defendant to settle all he 
then had, which was per- 
formed ; since that an attempt 
was made before me to have 
a new decree against the De- 
fendant to settle new acqui- 
sitions made by him; but I 
did not think a court of con- 
science obliged to execute 
such a strange agreement 
any farther than it had been 
carried already, since it tend- 
ed to the discouragement of 

all honest industry; so the 
suit failed. Now this bill 
was exhibited in aid of the 
former decree in 1664; for it 
did not demand any estate^ 
accrued since, but to have a 
farther conveyance of that 
estate which was then in 
being, but undiscovered, and 
Is now proved, and insisted 
upon some old forfeited 
mortgages then unknown, and 
for this the Plaintiff prevail- 
ed ; but because forfeited 
mortgages in fee simple are, 
when redeemed, part of the 
personal estate, ergo the de- 
cree was with a proviso, that 
if the Defendant's personal 
estate was not worth 3000/. 
at the time of his death, ac- 
cording to the exception in 
the articles, then these for- 
feited mortgages, now to be 
conveyed, should be subject 
to make it up. — Lord Not' 
tinghams MSS. — Reg. Lib. 
A. 1677, fol. 105. 

{a) See Prehhle v. Boghursi, effect from the death of the De- 
ttnte,yr.\, p. 509. fendant. — Reg. Lib. A. 1677, 

(b) The settlement wss to take fol. 105. 







remaindera; and charged his estates with an annuity 
of 300^ to his wife Hannah^ and appointed her, and 
bis nephew James Gordon^ since deceased, executrix and 



Whether let- 
ten referring 
to other let- 
ters which 
have been 
but not con- 
taining in 
certain terms 
of agreement, 
can he made 
ittion of a q>e- 
cific perform- 

On a man*iage between a 
son of the Defendant and a 
granddaughter of the Plain- 
tiff, the Plaintiff settles lands 
to the use of the son of the 
Defendant, the intended hus- 
band, for life, remainder to 
the wife for life, remainder 
ta the issue of their two 
bodies in tail, remainder to 
the husband in fee. Imme- 
diately after marriage, the 
husband dies without issue, 
and devises all his reversion- 
ary interest to his father the 

The Plaintiff exhibited his 
bill to compel the Defendant 
to make a settlement on his 
son's widow, pursuant to an 
agreement on his part, or else 
to reconvey the reversionary 
interest devised to him by 
his son. 

The evidence of the agree- 
ment was a letter written by 
the father, in which were 
words to this effect : 

** All that I have promised 
I will make good;*' and af- 
ter, ^* all that I have is for 
him and his," f. e. the son. 
This letter was written in 
answer to one from the son 

to the father, which was sup* 

The contents and occasion 
of the son's letter were to 
acquaint his father that hi^ 
proposals would not be ac- 
cepted till they could hear 
from him. 

It was insisted that the 
words of the father's letter 
referred to proposals which 
he had given the son autho- 
rity to make, and which the 
son's letter would probably 
have disclosed, and that being 
suppressed by the Defend- 
ant, ought to be taken most 
strongly against him; and 
that the words ^' all that I 
have," included both real and 
personal, ** to him and his,'* 
his wife and children. 

It was said by ifoto, that 
if the Court should be 
against the Plaintiff as to 
making a settlement, the 
Defendant ought to reconvey 
the estate devised to him, 
the consideration, vfz. the 
settlement on the husband's 
side, not being executed ; as 
in case lands are sold and 
conveyed, and the purchase 
money never paid, Chancery 



executor. By a codicil dated the 7th of December 1 782, 
reciting that he had two children by Margaret CfHara^ 
and that she was then pregnant, and expressing his de* 


will compel the vendee to re- 

To this it was answered, 
that the settlement made by 
the Plaintiff mentioned no 
consideration of any other 
settlement to be made by the 
Defendant, nor any other 
consideration at all but mar- 
riagCy which was executed, 
and, therefore, no reason for 
a reconve^'ance. 

The Lord Keeper told 
the Defendant's counsel they 
need not labour that point. 

As to the other, the De- 
fendant's counsel admitted it 
to be a case of great compas- 
sion, but not within tlie 
power of the Court to re- 
lieve: they agreed that the 
bare memorandum of an 
agreement put in writing and 
subscribed, was not within 
the statute of frauds, pro- 
vided it be of a thing in cer- 
tain, but that this was utterly 
uncertain of itself, and not 
capable of being reduced to 
a certainty, there being no 
evidence of the proposals to 
which it referred ; and as to 
the suppressing a letter, they 
thought it very different from 
suppressing a deed, and hard 
that a man should suffer for 

not keeping all his letters by 

Vernon cited two cases 
where the Court compelled 
the execution of proposals 
made by letters : in one, the 
father said he would give his 
daughter 3000/. ; in the other 
case, the father said he would 
not give his daughter above 
1500/. ; but distinguished this 
case from both, because in 
them there is a sum certain 
named, but not in this. 

Lee cited likewise several 
cases of great compassion 
where Chancery could give 
no relief. The case of the 
present Earl of Ztnco/n, which 
was thus: the last Earl of 
Lincoluy by several succes- 
sive wills, gave his estate to 
the present, to whom the 
honour was to descend, but 
after the date of the last of 
those wills, he settled his 
estate in consideration of an 
intended marriage ; now, 
though that marriage never 
took effect, nor consequently 
the settlement, yet, this being 
in law a revocation of the 
will. Chancery would not re- 

Another case was this: 
trustees^ out of the profits of 






sire that his two natural children should be provided 
for, the testator bequeathed his whole estates, both real 
and personal, to six persons (including Margaret (yHara\ 


the trust lands, purchased 
other lands ; and though the 
proof was very full that they 
purchased those very lands 
with the same money they 
had received from the trust 
landsy yet Chancery would 
not make the purchased lands 
liable to the trust, money hav- 
ing, as it was said, no ear- 

The. like case of a miller 
at Uxbridge, who had hid 
SOOl* in a hole in a wall ; the 
person that found it pur- 
chased lands with it, and 
died, leaving no assets ; the 

Court could not decree those 
lands to the miller. 

ThehoRD Keeper* — I will 
go as far as I can for the 
Plaintiff. Let the Plaintiff 
search for precedents where 
Chancery has decreed recon^ 
veyances, and the Defendant 
attend me, that I may see 
what he will propose. 

Aflerwards, the Defend- 
ant agreed to settle all tlie 
estate he had to the widow 
of his son for life, and so the 
matter was compounded.—* 
From Mr. Cox*n notes, Lord 
Colchester s MSS. 


In Chancery. 29th January 1722. 

A disposition 
in fraud of a 
covenant in 
marriage ar- 
ticles, to give 
a fourth part 
of the cove- 
nantor's real 
and personal 
estate at the 
time of his 
death, re- 

Joan Kempf mother of 
the Defendant, on the mar- 
riage of her eldest son, John 
Kemp, with Mary, late wife 
of the present Plaintiff, among 
other things, in consideration 
of the marriage, covenanted 
by her last will, or otherwise, 
to givCy grant, or devise to 
John Kemp, his executors 
or administrators, one full 
fourth part of all the real and 
personal estate she should be 

seised of or entitled to at the 
time of her death. The mar- 
riage took effect, but after- 
wards John Kemp and his 
daughter, the only issue of 
that marriage, both falling 
iato a very bad state of health, 
the mother often declared 
her apprehensions that nei- 
ther her son nor his child 
would long survive her, and 
therefore appeared much dis- 
satisfied at the covenant en- 



named as executors of his codicil, for the purpose of 
paying the legacies and annuities given by the will and 





tared into, because so large 
a portion of the estate was 
likely to go into the hands of 
strangers. Three days be- 
fore her death, she sent for 
a friend of hcrs^ told him 
that she had 1000/. in bags 
lying at Mr. Hcarle's, a 
banker hard by, and directed 
him to draw up an instru- 
ment or authority in writing, 
whereby she empowered him 
to give two of the bags, con- 
taining 200/., to one of her 
daughters; two other bags, 
containing 200/. more, to an- 
other of her daughters ; and 
the remaining 600/. to Hawes 
and Pearce, whom, she told 
him, she had made trustees 
in her will ; and the 600/. 
were to be in trust for seve- 
ral of her grandchildren. 
Accordingly, an instrument 
in writing was prepared for 
the purposes aforesaid ; and 
at the same time slie signed 
an order to Mr. Ilearle to 
pay the said sums to Hawes 
and Pearce for the use of the 
children. Hearle delivered 
the money to Pearce in 100/. 
bags, which Pearce sealed up, 
and wrote upon them, " for 
Mrs. Hand, Mrs. TomkinSf 
Mrs. N. Kemp,'* (the three 
Vol, ni. E 

daughters,) and then left 
them in the hands of Hearle^ 
to be delivered when called 
for. Three days after this 
transaction Joan Kemp died ; 
and in a short time John 
Kempj the son, died, and by 
his will devised to his wife 
all his goods and chattels, 
real and personal estate what- 
soever, and made her exe- 
cutrix. His daughter died, 
and Mari/t the widow, mar- 
ried the Plaintiff, and died. 

The Plaintiff, as adminis- 
trator of Mart/, and adminis- 
trator de bonis non o^ John 
Kemp, filed a bill against 
A^. Kemp, to have an account 
of the estate of Joan Kemp, 
and to have the full fourth 
part of her estate, and that 
the 1000/. disposed of as 
above might be charged upon 
the remaining three parts of 
the estate ; insisting that the 
disposition was in fraud of 
the articles, that it was made 
in her last sickness, and but 
just three days before she 
died; that it was at best a 
donatio causd mortis, and 
would have been alterable by 
a will made after, or in case 
she herself had recovered ; 
that if this was so, it was like 
e the 







The bill fiirtlier stated, that the testator died on the 
7th of August 1787, leaving his widow, and his children 
named in his will surviving, and that his widow and 


the will of a freeman of Lo7i' 
don, which never had been 
allowed to defeat the cus- 
tomary shares of his widow 
or children after his death. 

On the other side it was 
argued, that there could be 
no pretence that Joan Kempy 
notwithstanding these arti- 
cles, was not at liberty in her 
lifetime to have disposed of 
her personal estate as she 
thought fit ; that she might 
have invested it in a pur- 
chase, or might have lived 
upon the principal ; and if 
she had thought fit to spend 
and give it all away in her 
lifetime, the Plaintiff must 
have been content, and could 
have had no remedy ; that 
this was not a donatio caicsd 
mortis, but a donatio inter 
vivos ; that the donation was 
followed by an actual deli- 
very in her lifetime, and 
could never after have been 
recalled or revoked if she had 
recovered ; that though 600/. 
of the money were given to 
the same persons whom she 
had named trustees in her 
will, yet that was only a de- 
scription of the trustees she 
intended to take care of it 
for her grandchildren, and 

did not make it any part of 
her will, or in any sort de- 
pendent upon her will, and 
therefore the Plaintiff had no 
colour to impeach or call it 
in question. 

The Lord Chancellor was 
of opinion, that the dispo- 
sition was in fraud of the 
articles. He agreed, that 
notwithstanding the articles, 
Mrs. Kemp was not restrained 
from disposing of her estate 
any way in her lifetime, and 
had a full power over it, but 
with this single exception, 
(viz,) she was restrained from 
making a distribution on pur* 
pose to defeat the covenant, 
which it is here fully proved 
she did ; for she was unwil- 
ling her estate should go to 
strangers ; and the disposi- 
tion is a plain fraud ; it was 
the intent of the articles 
that it should be for stran- 
gers, for it is to him, his ex- 
ecutors, &c. ; therefore, if he 
should think proper to make 
his wife executrix, as he did, 
it was designed for her bene- 
fit. But supposing this dis- 
position had not been with 
this avowed design to evade 
the articles, yet he should 
have thought it, as it is cir- 




Magaret (yHara proved his will and codicil ; that some 
time after his death it was discovered tliat the testator 
had made another will, bearing date on board the 





cumstanced, a donatio mortis 
causdy and not good ; for 
otherwise articles of this na- 
ture will signify nothing, if 
they are thus eluded by a 
disposition a day or two be- 
fore death ; and in this case 
she puts the greatest part of 
the money into the hands of 
the trustees named in her 
last will, so that it seems to 
have the air of a will. The 
Plaintiff, therefore, must have 
the full fourth part of the 
estate after debts paid ; but 
this disposition is good to 
affect the remaining three 
parts of her estate, and must 
be satisfied out of it to the 
several Defendants. — MS. 

" Whereupon, and upon 
long debate of the matter, 
&c., His Lordship declared, 
that although he was of opi- 
nion that the said Joan Kemp 
was not restrained, in her 
life-time, from disposing her 
estate, or doing any thing 
which was not professedly in 
breach of the said articles 
made on the marriage of the 
said John Kemp^ her son, yet 
it manifestly appearing that 
the said Joan Kemp's dis- 
posing the 1000^. in the 
pleadings mentioned was not 


bondjlde, but purposely done 
that the articles might not 
take place, it was a fraud, 
and ought not to stand against 
the Plaintiff Gregfor; and doth 
therefore order and decree 
that the Defendants, the exe- 
cutors of the saidJba/t Kemp, 
and the other Defendants to 
the Plaintiff Gregorys bill, do 
come to an account with the 
said Plaintiff, before Mr. Ed' 
wards, one, &c., for what of 
the said Joan Kemp's estate 
came to their, or either of 
their hands, &c. ; and the said 
Master is also to take an ac- 
count of the debts of the said 
Joan Kemp which remained 
unsatisfied at the time of her 
death, and is to make an 
allowance thereof to the said 
Defendants, the executors, 
out of the estate of the said 
testatrix, and is also to make 
them all just allowances ; and 
for the better taking the ac- 
count. Sec; and what upon 
taking the said account shall 
appear to be personal estate 
of the said Joan Kemp, after 
her debts satisfied, and all 
other just allowances made 
to the said Defendants, the 
executors, as aforesaid, it is 
ordered and decreed that the 
e 2 said 







Grenada packet, on her passage from Grenada to London, 
the 5 til of August 1787, and thereby declared that his 
son Peier Gordon should be his sole heir, and appointed 


said Defendants, the exe- 
cutors, do pay one-fourth 
part thereof to the Plaintiff 
Gregor, with interest for the 
same, to be computed by the 
said Master from the end of 
tlie year after the death of 
the said testatrix ; and do 
likewise, out of the three re- 
maining fourths of the said 
Joan's estate, pay unto the 
Plaintiff, Gregory 250/., being 
fourth part of the 1000/. so 
disposed by the said Joan 
in fraud of the said articles ; 
and do likewise pay interest 
for the said 250/. from a year 

after the death of the said tes- 
tatrix Joan Kemp ; but as to 
the other Defendants to whom 
the said 1000/. were given by 
the said c/ban Kcmpy His Lord- 
ship doth order that the mat- 
ter of the Plaintiff Gregory 
bill do stand dismissed out of 
this Court, with costs, to be 
taxed, &c. ; but such costs 
are to be repaid by the De- 
fendants, the executors, who 
are also to pay the Plaintiff's 
own costs so to be taxed," 
&c. Reg. Lib. A. 1722. fol. 


In Chancery. 25th October 1725. 

Kent for a 
colliery com- 
mencing the 
first quarter 
day after a 
certain quan- 
tity of coal 
had been dug, 
ordered to be 
paid from the 
quarter day 
prior to which 
that quantity 
woula have 
been dug, but 
for the fraudu- 
lent delay of 
the lessee. 

The Plaintiff, in the year 
1721, leased to the Defend- 
ant some coal mines, reserv- 
ing a rent of GOOLper annum, 
the first quarter's rent to be 
paid at the next feast afler 
the lessee should have digged 
1000 stacks of coal ; the 
lessee covenanted that he 
would dig or cause to be 
digged the said 1000 stacks 
of coal without delay, and 
in a reasonable time ; and it 

was further covenanted be- 
tween the parties that the 
Defendant might, upon six 
months' notice, determine and 
quit the said lease, paying all 
the rents due, and perform- 
ing all the covenants con- 
tained in the lease. The les- 
see entered, and in 1723 gave 
six months' notice, according 
to the agreement, whereby he 
insisted that the lease was de- 
termined at Chrutmas 1723* 




him, together with Benjamin Boddington and Thos* 
Boddington^ oi London^ his nephew James Gordon^ and 
James Gof'don the son of his nephew, executors; and 






The Plaintiff preferred his 
bil], and set forth that the 
Defendant after entering into 
the lands at Christmas 1721, 
wrought in the mines ; and 
having digged the 1000 stacks 
of coal about a week before 
quarter-day, wanting only a 
small quantity, employed his 
workmen in other works, tell- 
ing some of them that he was 
not such a fool as to pay a 
quarter's rent for a few days' 
work; by which means the 
1000 stacks of coal were not 
digged till after Ladi^-Day^ 
whereas they might have been 
digged before, had not the 
Defendant himself prevented 
it ; and insisted that the first 
quarter's rent therefore ought 
to have been paid upon Lady- 
Day 1721 : and prayed that 
the Defendant might be ob- 
liged specifically to perform 
his covenants, and continue 
the lease for the twenty-one 
years; for not having per- 
formed his covenants, he in- 
sisted he could not determine 
it ; for that the power to de- 
termine by notice was con- 
ditional, viz, on paying the 
rent and performing the co- 
venants, by one of which he 
was obliged to dig the pits in 


a workman-like manner, and 
to level the pits with the gin- 
pit, {viz, the pit where the 
engine is to carry away the 
water,) which he had not 
done, whereby the pits were 
overflowed with water, and 
become of no service to the 

It was said for the Plaintiff 
that the Plaintiff's application 
was very proper in this Court, 
for the Defendant had made 
use of fraud and contrivance 
to prevent the commence- 
ment of the rent, and that 
he was entitled to insist on a 
specific performance of the 
Defendant's covenant, and 
continuance of the lease ; for 
though there might be an 
action of law for breach of 
covenants, if he had not per- 
formed them, yet it is more 
just and reasonable in a court 
of equity to oblige the De- 
fendant specifically to per- 
form his covenants, than to 
drive the Plaintiff to an action 
of law to recover damages 
only for the breach of them. 

For the Defendant it was 
said, that the bill ought to be 
dismissed, because the Plain- 
tiff, if injured, might have his 
remedy at law; for if the 
e S Defend- 






bequeathed 2000/. to the plaintiff, and to each of his 
children, James, Adam, and Hannah, to be paid by Peter 
Gordon within two years after the testator's death, with in- 
terest ; and declared Peter Gordon his residuary legatee. 


Defendant had prevented the 
digging the 1000 stacks of 
coal by design, an action of 
covenant would lie against 
him at common law, since 
he covenanted that he would 
dig them without delay, &c. 
And as to the second point, 
if he has not performed his 
covenants, he cannot deter- 
mine the lease; and then it 
still continues without the as- 
sistance of this Court ; if he 
has performed them, he may 
determine it : and this is a 
proper fact for a jury to de- 
cide, and not for this Court. 
Kiiig^ Lord Chancellor, 
agreed that, as to the second 
point, it is proper to be tried at 
law, and in an action of debt ; 
for if the Defendant has not 
performed his covenants, he 
cannot then determine the 
lease, and if that is still subsist- 
ing, which is a fact for a jury 
to try, an action lies for the 
rent. But as to the first point, 
though he might indeed have 
remedy by an action of cove- 
nant, upon the collateral co- 
venant to dig the coal with- 
out delay, &c., yet here 
was fraud in preventing the 
digging before the quarter- 

day, in order that the rent 
might not commence so soon; 
and this fraud requires the 
interposition of the Court. 
Decree, therefore, the De- 
fendant must pay the first 
quarter's rent due at Lady^ 
Day 1721, and account and 
pay the rent to Christmas 
1723, till which time he al- 
lows the lease continued ; and 
the Plaintiff to have the costs 
against the Defendant so far 
as be has prevailed; and as 
to the other point, whether 
the lease is determined or 
no, it is properly cognizable 
at common law, and the bill 
must be dismissed as to that, 
and the Defendant, as to that 
matter, so far must have his 
costs. — MSS. 

The following is the entry 
in the register relative to the 
question noticed in the pre- 
ceding report : 

" Upon debate, &c., His 
Lordship declared, that the 
said George Sparrow fraudu- 
lently delayed the getting the 
1000 stacks of coal till after 
the quarter day, on purpose 
to keep off the commence- 
ment of the rent ; and doth, 
therefore, think fit to order 




The bill then stated, that Peter Gordon died in Octo-' 
her 1787 without issue and intestate, and upon his death 
the Plaintiff, who was thereby become heir at law of his 


and decree that the Defend- 
ant Sparrow do pay to the 
Plaintiff Green the first quar- 
ter's rent for the said col- 
liery works, as due at Ladj/- 

Day 1721 ; and do continue 
to pay the rent for the same 
from Lady 'Day 1721 to 
Christmas 1723," &c.— Reg. 
Lib. A. 1725. fol. 120—124. 




SEAR t;. ASHWELL. (a) 
In Chancery. March 1739. 

Ivor of 




of the 




red by 


The Lord Chancellor. 

The first question is in re- 
spect of two demands made by 
two persons under two bonds 
given to each of them for 
40/., payable after the death 
of the testator's mother ; and 
as to them, I am of opinion, 
that the legacy of 60/. a 
piece given to them in the 
will was in satisfaction of 
those two bonds, the legacies 
being greater than the bond 
debts, and made payable at 
the same time. The next ques- 
tion is as to the claim by the 
testator's younger children by 
his first wife, under the settle- 
ment 26 JV5rMary 1720, which 
has been destroyed, but a 
draft thereof has been pro- 
puced and admitted by the 
Defendant's answer, which I 
make no doubt is a reason- 

able settlement. Dimmock 
devised his estate to Atkins^ 
the testator, and his wife, and 
their heirs ; jitkins, after his 
wife's death, intending to 
marry again, made a settle- 
ment to trustees for 500 
years, in nature of a mort- 
gage, with condition that if 
his heirs or executors paid 
300/. to Reileard his eldest 
son, 200/. a piece to John, 
his younger son, and Mary, 
his daughter, then the term 
to cease. Atkins afterwards 
married Elizabeth, now his 
widow ; the Defendant then 
sent for the former settle- 
ment and burned it, and a 
copy thereof is produced and 
proved ; and the question is, 
whether younger children are 
entitled to the benefit of the 
settlement ? and I am of opi- 

(a) Vide Bolton v. Bolton, pott, p. 414. 

£ e 4 








father, proved his father's will in America^ and began 
to receive the rents of his estates; but very shortly 
afterwards the Defendant, James Gordon^ claimed the 


nion they are entitled, and that 
the settlement will be good 
against the testator, and all 
claiming under him ; for it 
was plainly a provision for 
younger children from whose 
mother or \xiic\e Atkins had the 
estate, and younger children 
are to many purposes con- 
sidered as purchasers ; and 
being an absolute settlement, 
Atkins had no power to re- 
voke it. It was admitted for 
the Defendant that if the set- 
tlement was now in being, 
they would at all events be 
intitled to the benefit of it, 
but that being always kept 
in testator's own custody, 
and never delivered to the 
trustees, and he having de- 
stroyed it, it should not now 
be set up again ; and for this 
purpose the case of Naldred 
V. Gillam [a) has been cited, 
but I think that was different ; 
there was a mere voluntary 
settlement in every respect, 
not only as to creditors, be- 
ing a settlement by an aunt 
for the benefit of her nephew, 
which never was disclosed, 
but kept always in her pos- 

session, and made for a per- 
son for whom she was not 
obliged to provide ; some 
body broke open her scru- 
toire, and the nephew clan- 
destinely took a copy, and 
she aflerwards destroyed the 
settlement ; this Court would 
not suffer the copy to be set 
up, because it would not 
have it set up for any body 
else, not even in favour of an 
heir at law, but the person 
claiming under it, must take 
his chance, whether it should 
appear fraudulent or not. 
The present case is different, 
being a settlement for chil- 
dren otherwise unprovided for, 
and, therefore, as such they 
are entitled to set up this 

The question then is, how 
far they are entitled to have 
the benefit of it? And I 
think they are entitled as 
against all those claiming 
under the bill, but not against 
the specialty creditors; for 
being voluntary it will be con- 
sidered as fraudulent against 
them, upon the statute of 
Elizabeth [b) ; for though in 

(n) \P,W.5n, 

{h) 15 Eliz.c.S, 




estates, alleging that he was the real heir at law of 
the testator, by reason that both Peter Gordon and 
the Plaintiff were illegitimate, and not born after the 




some cases voluntary settle- 
ments have been held good, 
where there appear any badges 
of fraud, and a settlement is 
to commence after the death 
of the person who makes it, 
(as in the present case,) it 
has been always held such 
in a court at law; and if 
at law the creditors would 
be entitled against the set- 
tlement, there is no colour 
why in equity they should 
not be entitled : but this is 
only as to the bond cre- 
ditors; those by simple con- 
tract cannot prevail against 
the settlement, because that 
was a prior charge upon the 
estate in favour of children, 
and against those, siinple 
contract creditors will not 
be preferred, though they 
would against legatees. In- 
deed, even that was formerly 
otherwise; where debts and 
legacies were charged upon 
the estate, it has been de- 
creed that they should be 
paid pari passu ; but now 
it is settled that creditors 
always must take place. 

The next question is as to the 
residue of the personal estate, 
and I should be inclined to 
think that it ought to be 

taken as a specific legacy, 
exempt from debts, in case 
the real estate was sufficient, 
which in this case it is not. 
The real estate is devised to 
trustees to sell the same for 
payment of all his debts, and 
for the maintenance of chil- 
dren to twenty-one, or day of 
marriage; and then the residue 
of the land to his eldest son ; 
then he gives out of the per- 
sonal estate several specific le- 
gacies ; and then says, '' Item, 
I give all the rest and residue 
of my money and personal 
estate unbequeathed to my 
wife ;*' and makes her execu- 
trix. Now where a personal 
estate is given as a residue, 
it is generally held to be 
liable notwithstanding, in the 
first place for the payment 
of debts ; it must be some- 
thing very particular to make 
it otherwise, and I think 
that particularity does occur 
here ; because the real estate 
is bet'ore charged for pay- 
ment of all his debts, and the 
residue of the personal estate 
unbequeathed is given to the 
wife ; which shews the residue 
of the personal estate in that 
case was meant as a specific 
legacy, and the real estate 







testator and his wife were married; and he repre- 
sented to the Plaintiff that he was provided with 
evidence to prove the Plaintiff's illegitimacy ; and the 


(in case it was sufficient) is 
charged therewith ; and so it 
has been determined (a) ; and 
the only doubt remaining is as 
to the wife's being made like- 
wise executrix ; but I believe 
the cases cited at the bar 
were likewise where the resi- 

duary legatee was made exe- 
cutor, as in the case, so that 
circumstance is not material. 
But the real estate here not 
being sufficient, I think the 
creditors must come upon 
the personal estate. — MSS. 
Reg, Lib. B. 1739. fol. 437. 

(a) 2 Vern. 7 IS. 

In Chancery. 5th December 1739. 

A voluntary 
deed executed 
in favor of 
children, with- 
out a power 
of revocation, 
18 not revoked 
by a subse- 
quent will. 

A. settles his estate on him- 
self for life, remainder to his 
wife for life, remainder to his 
first and other sons, in tail, 
and in default of such issue 
male, limits a term of 500 
years to trustees, to raise 
2000/. a piece to his daugh- 
ters, remainder to his own 
right heirs. 

A. having no children but 
daughters, and having the 
remainder to his own right 
heirs, executed a deed, by 
which (after reciting that 
he had promised to give 
to a gentleman, who had 
married one of his daugh- 
ters, 3000/.* and his estate. 

but that he had altered hid 
mind) he charged his estate 
with 4000/. a piece for all 
his children, and gave some 
other legacies; and bound 
himself and his heirs, &c., in 
the sum of 25)000/. to his 
children, their executors, &c., 
if all his estate was not 
equally divided among them. 

A. afterwards by his will 
disposed of his estate in a 
very diJQFerent manner from 
the last deed; and the bill 
was brought against the de- 
visees and trustees of the 
will, and to have the deed 
carried into execution. 

The question was, whether 

(a) Vide Sear v^ Athweli, ante, p. 4 J 2. Worrall v. Jacoby 5 Mer* 256. 



Plaintiff, in consequence of such assertions, and having 
seen a certificate of a public solemnization of a marriage 
between his father and mother subsequent to his birth, 




the will was a revocation of 
the deed ? 

The Lord Chancellor. 

As this is a deed formally 
executed in the life-time of 
A*9 and a voluntary settlement 
without a power of revoca- 
tion, it will not be subject to 
a revocation by the will ; for, 
if it was, there would be no 
difference between a deed 
with a power of revocation, 
and one without it. 

The case of Naldred v. 
GUlam{a) is where an old 
woman executed a voluntary 
settlement of her estate, which 
she always kept by her, in 
favour of her nephew; a 
copy of this was surrepti- 
tiously got by the nephew's 
father ; the old woman changed 
her mind and made a different 
disposition by will ; and after 
her death, a bill was brought 
to set up the copy against 
the will, and the Master of 
the Rolls decreed the copy 
to be good, because the ori- 
ginal was lost. But on an 
appeal to Lord Macclesfield^ 
the decree was reversed ; for 
as it was only a voluntary 
settlement and kept always 

by the party, it must be pre- 
sumed she intended to have a 
power over it ; and he refused 
to shew any kindness to a 
copy gained so fraudulently, 
or to a voluntary settlement 
under such circumstances ; 
and decreed in favour of the 
will, because of the attendant 

As this deed is a provision 
for children, there is a kind of 
consideration for it, and it 
ought to take place of all other 
voluntary settlements, and, 
therefore, of the will, but not 
of debts or other settlements 
for a valuable consideration. 

The Defendant's counsel 
urged that the 2000/. a piece 
secured to the daughters by 
the settlement were to be in- 
cluded, and make up a part 
of the 4000/., and, therefore, 
what was not given to the 
daughters by the deed, was 
well devised by the will. 

But the Lord Chancellor 
said, that A. must think that 
the 4000/. a piece to his five 
daughters would exhaust his 
whole estate, and lest it should, 
he bound himself in the 
25,000/., if all his estate 

(fl) 1 P. W. 577. 







and previous to that of the Defendant, James Gordon, 
was induced to believe his alleged illegitimacy; and 
under that impression, and in order to end the differences 
subsisting between him and James Gordon^ who threat- 
ened legally to assert his claim, and solely under that 
persuasion, and without any consideration, articles of 
agreement were executed by the Plaintiff and the De- 

should not be equally divided 
amongst his daughters. 

Decree, account of the 
personal estate, and after 
payment of debts, &c., let 
the surplus be equally divided 

among the five daughters, 
the Plaintiffs, and also the 
real estate be divided amongst 
them as tenant in common.-— 
From Mr. Short, Lord Col' 
Chester 8 MSS. 


In Chancery. Mich. 17 Geo.2. 1743. 

An agreement 
between trus- 
tees of a cha- 
rity and the 
next of kin of 
a testator for 
division of 
property, sub- 
ject to a be^ 
^uest for cha- 
ntable pur- 

f>oses, estab- 
ished, after a 
report from 
the Master 
that it was 
beneficial to 
the charity. 

A. by will devised all his 
estate, both real and personal, 
to the hospitals of St. Bar' 
tholometo, &c. ; and it being 
a question whether this de- 
vise was within the late sta- 
tute of mortmain, the go- 
vernors of the hospitals, &c., 
and the next of kin came to 
an agreement that all the 
estates both real and personal 
should be sold, and the pro- 
duce divided into four parts, 
one of which was to be for 
the next of kin, and the other 
three to be paid to the use 
of the corporations. The 
leasehold was 400/. a year, 
and the personal 4,500/. after 
debts paid. This agreement 

came now to be established 
in Chancery ; but it not ap- 
pearing what proportion the 
leasehold and personal estate 
bore to the realy the Court 
was unwilling to decree, till 
the Master should report 
whether this agreement was 
for the benefit of the charity ; 
for, by the Lord Chancellor, 
it appears to be a proposal 
only, and no agreement; if 
the latter, I should think the 
agreement of so great a cor- 
poration of great weight with 
me ; but these corporations 
are only trustees for the seve- 
ral charities, and cannot alien 
the lands or estates given 
to those uses, and these es- 



fendant, James Gordon^ dated the 31st of March 1790, 
whereby, after reciting a mortgage of the estates of the 
testator to Boddington and Betiesworth for 5559/., and 






tates are distinct from those 
which they are seised of as 
mayors, &c., of London, (a) 

The agreement was after- 
wards established by a de* 

Note. — In this case the 
Attorney General argued, 
that as corporations could 
not be seised to an use at 

law, no more could they be 
trustees, but should have the 
lands to their own use, di- 
vested and freed from the 
trust. 1 Co. 122. a. Chud" 
leiorh*a case. But the Chan- 
celior would not let him go 
on; nothing being clearer 
than that corporations can be 


ance de- 
creed at 
the in- 
penon en- 
titled to 
the bene- 
fit of an 
to it. 

The two Defendants were 
tenants in common of certain 
lands ; the Defendant Kinnear 
had taken a lease from Sir 
John Philips of his undivided 
moiety at a certain rent, but 
the rent being in arrear, the 
Defendant Kinnear entered 
into an agreement with Sir 
John Philips, by which he 
bound himself to execute to 
the Plaintiff such lease of the 
premises as Sir John Philips 

and the Plaintiff should agree 
upon, and that all the rent 
should be paid to Sir John 
until the arrears that were 
due to him from Kinnear 
should be discharged, but 
the Plaintiff was no party to 
the articles. Accordingly Sir 
John Philips agreed with the 
Plaintiff that he should have 
the premises at 30/. a year, 
and executed a lease to him 
of his part at 15/. a year ; but 

(a) Upon debate, &c., his 
X«ordship doth think fit, and so 
order and decree, that it be re- 
ferred to Mr. Ho/fordf one, &c., 
to examine whether it is for the 
benefit of the charities mentioned 
in the will of the said John 
Aldred, that the proposal and 
agreement stated in the inform- 

ation, and submitted to by the 
answers of the said Defendants, 
Smith and South, be carried into 
execution ; and the said Master 
is to state the whole matter, how 
he finds the same, to the Court, 
whereupon this Court will give 
further directions. -* fieg, lab. A. 






the wills and codicil of the testator, and the death of 
him and of Peter Gordon^ it was agreed that the Plaintiff 
should continue in possession of the estates in Grenada^ 


the Defendant Kinnear re- 
fusing to execute any lease of 
his part, the Plaintiff brought 
this bill for a specific exe- 
cution of the agreement. 

Mr. Wilbraham objected, 
for the Defendant, that this 
Court never decrees a specific 
execution of an agreement, 
but at the instance of the 
party with whom the con- 
tract is made; consequently 
that this bill ought to have 
been brought by Sir John 
Philips^ not by the Plaintiff. 

The Lord Chancellor. 

I think the Plaintiff is the 
proper person to bring this 
bill, because I must take it 
that Sir John Philips con- 
tracted not only in behalf of 
himself, but also of the Plain- 
tiff; for the agreement is that 
he should join him in making 
a lease to the Plaintiff; and 

it is certain that if one person 
enters into an agreement with 
another for the benefit of a 
third person, such third per- 
son may come into a court of 
equity and compel a specific 
performance; and there are 
many instances where stew- 
ards have made agreements, 
and yet the masters, for whose 
benefit they were made, have 
come into this Court, and ob- 
tained decrees. Indeed if Sir 
John Philips had made an 
unreasonable agreement with 
the Plaintiff, that would have 
been a proper defence; but 
he has not : therefore I must 
decree that the Defendant 
execute a lease of his moiety 
to the Plaintiff upon the like 
terms as the lease executed 
by Sir John Philips to him 
of his moiety. — MS. 


31st October 1755. 

Injanction to 
restrain pro- 
ceedings in 
the Ecclesias- 
tical Court to 
set aside a 
will, contrary 
to agreement. 

The bill in this case was to 
set aside a deed suggested to 
have been obtained by the 
Defendant from the Plain- 
tiff's wife before the marriage, 
by misrepresentation^ impo- 

sition, and surprise; and it 
was also that a paper writing, 
purporting to be the will of 
the Plaintiff and Defendant's 
father, should be carried into 
execution so far as it went, 




and should, in consideration thereof, pay out of the 
profits the cultivation and management thereof, and 
the Interest of the 5559/., and should also pay to 





and that the Defendant, the 
administrator of the father, 
widi this paper writing an- 
nexed, should account for, 
and make distribution of, the 
personal estate of the father 
left undisposed of by this 
writing. By the deed at- 
tempted to be set aside, it 
was agreed between the Plain- 
tiff and Defendant, that the 
Defendant should take out 
administration to the father 
with this paper writing an- 
nexed, and it was agreed that 
the Defendant should pay to 
the Plaintiff certain sums of 
money therein mentioned, in 
discharge and satisfaction of 
all her right and interest in 
the father's estate. The De- 
fendant, by his answer, de- 
nied that the deed was ob- 
tained by any imposition or 
surprise, or that the Plaintiff 
was prevailed upon to exe- 
cute the same by any per- 
suasion or misrepresentation ; 
and swore that during the 
treaty between him and the 
Plaintiff previous to the exe- 
cution of the deed, he gave 
her the best information he 
was able concerning the es- 
tate and condition of the 
afiairs, and circumstances of 

the father at his death, and 
particularly concerning the 
nature, amount, and value of 
his personal estate; and In- 
sisted on the deed in bar to 
the Plaintiff's demands, and 
that he was not now account- 
able to the Plaintiff for such 
personal estate. 

Exceptions were taken to 
the answer, for that the De- 
fendant had not set forth the 
particulars of the personal 
estate of the father ; and it 
being referred to a Master, 
he reported the answer suffi- 
cient, in regard he thought 
the Defendant not account- 
able for the personal estate 
till the validity of the deed 
was determined ; and ex- 
ceptions being taken to the 
Master's report, the Lord 
Chancellor was of the same 
opinion, and confirmed the 
report : but upon arguing the 
exceptions, the Lord Chan- 
cellor seemed to think that 
the paper writing which was 
taken for a will, ought not to 
have been considered as such, 
nor ought to have been an- 
nexed as a testamentary sche- 
dule to the letters of admi- 
nistration. It was only the 
incipitur of a will of the 







Messrs. Boddington and Betlcswojih lOiO/., then due 
from the Defendant, James Gordon^ to them, and to 
James Gordon or his assigns an annuity of 400/. for five 


father's own hand-writing, in 
which some legacies were 
given, particularly to the wife, 
and it began, I give and be- 
queath, &c., but had no con- 
clusion, date, or signing, nor 
was any executor named in it. 
Upon this, it being for the 
oenefit of the PiaintifFs that 
this paper writing should be 
set aside as a will, they took 
the advice of several civilians 
upon it, who all concurring 
in opinion that the paper 
writing ought not to be con- 
sidered as a will, or to have 
been annexed as a testa- 
mentary schedule to the 
letters of administration, a 
suit was commenced in the 
Ecclesiastical Court by the 
Plaintiff against the Defend- 
ant to bring in the letters of 
administration, praying that 
the same might be vacated, 
and that letters of adminis- 
tration without such testa- 
mentary schedule might be 
granted, as upon a total in- 
testacy. This suit in the 
Ecclesiastical Court to set 
aside the will being incon- 
sistent with the suit in this 
Court, the bill praying that 
it might be established and 
carried into execution so far 

as it went, and the Defend- 
ant's answer being replied 
to, the PiaintifFs moved for 
leave to withdraw the repli- 
cation, and amend the bill, 
to make it agreeable to the 
case as it then stood; but 
some witnesses having been 
examined, the Lord Chan- 
cellor said the replication 
could not, by the practice of 
the Court, be then with- 
drawn (a), but that the Plain- 
tiffs, if they had mistaken their 
case, must dismiss the bill 
with costs, and prefer a new 
bill. After this, the Defend- 
ant brought a cross bill to 
establish the deed of agree- 
ment, and suggesting that it 
was part thereof that this 
paper writing should be per- 
formed as the will of the 
father so far as it went, and 
that letters of administration, 
with this paper writing an- 
nexed as a testamentary sche- 
dule, should be taken out by 
the Defendants, it was there- 
fore prayed that the Defend- 
ants thereto, who were PJain- 
titfs in the original bill, might 
be restrained by injunction 
from proceeding in the Eccle- 
siastical Court to set aside 
this paper writing as a will ; 









(a) Anon, Bam, SS2. 




' yearsy and in case James Gordon should be living at the 
end of five years, an annuity of SOO/. during Jame$ 
Gordoris life; and it was also agreed that at the ex- 




and now, before any answer 
was put in to the cross bill, 
tfuch injunction was moved 
for, on affidavit that the pro- 
ceedings above were depend- 
ingin theEcclesiastical Court ; 
iuid the Lord Chancellor was 
of opinion that the Defend- 
ants to the cross bill having 
Hgreed that this paper writing 
idiould be established as a 
will, they ought not in con- 
sdence to be permitted, at 
least for the present, to con- 
trovert this matter in the 
Ecclesiastical Court; nor at 
•U, if finally at the hearing 

of the cause the agreement 
should be established which 
went to the question at the 
hearing ; and therefore grant- 
ed the injunction. 

IJoie. — There was a case 
of this kind of Sheffield v. 
Duchess of Buckingham in 
this Court in Michaelmas term 
17S99 wherein the present 
Chancellor decreed a perpe- 
tual injunction against the 
Duchess to restrain her from 
questioning the validity of the 
will of the Duke her hus- 
band, (a) — From Mr. Coxe's 


Lincoln's Inn Hall. 14th January 1778. 

Lord Chancellor Bathurst. 



The Plaintiff was occupier and his own agent Baxter 
of a farm, and desirous of upon the subject; and in a 
purchasing a contiguous farm letter to Baxter^ Okeover 

belonging to the Defendant} 
Mr. Oheoverj of Okeover; 
Camper^ the Plaintiff's agent, 
applied to Baxter^ the De- 
• ^ fendants' agent for this pur- 
jli^ pose. There was a corres- 
e pondence between Okeover 

wrote, " If Coxvper will give 
2000 guineas, he shall have 
the estate." Mr. Bax/er wrote 
upon this to Mr. Coivpery but 
added, << As I apprehend the 
estate is worth more, I must 
write again to Mr. Okeover.** 


Vot. IIL 

(a) ] Atk. 62B. 







piration of ten years the Plaintiff should pay to the 
Defendant James Gordon 4500/.) and in the mean time 
secure the same in manner therein mentioned. 


Mr. Coxoper, in answer, wrote 
to Baxter, " That between 
gentlemen, the agreement 
ought to stand." 

The bill was filed stating 
this case, and insisting upon 
the correspondence as an 
agreement in writing for sale 
of the estate at 2000 guineas, 
and praying a discovery of 
the names and places of 
abode of all persons who had 
any interest in the estate, and 
that the Defendant Okeover 
might deliver an abstract of 
the title, and that the agree- 
ment might be performed. 

To this bill the Defend- 
ants Okeover and Baxter de- 
murred. They set forth the 
statute of frauds, and insisted 
that it appeared by the bill, 
that neither Okeover nor any 
person authorised by him 
signed any agreement in 
writing for sale of the estate 
to the Plaintiff. 

The Solicitor-General, Wed- 
derbume, for the demurrer. 
A defence by way of de- 
murrer to a bill of this nature 
is certainly new. The sta- 
tute of frauds is usually in- 
sisted upon by way of plea. 

But as to the form, there can 
be no objection ; for whatever 
is good by way of plea, must 
be good as a demurrer, if 
the facts appear sufficiently 
by the bill. He cited Bi// v. 
Sir Arthur Lake in the Com- 
mon Pleas (fl), Plummer v. 
Mai/ (b)f and Jenner v. Tra* 
cey (c), which was the case of 
a demurrer to a bill to re- 
deem, where it appeared by 
the bill that the mortgage 
had been in possession above 
twenty years. 

Mr. Madocks, for the Plain- 
tiff, insisted that the demurrer 
was a speaking demurrer; that 
it alleged a fact, the statute 
of frauds. The bill is against 
the Defendants for the spe* 
cific performance of an agree- 
ment which the Plaintiff col- 
lects from written evidence. 
Whether this is, or is not an 
agreement to be carried into 
execution, is a question to 
be determined at the hearing 
of the cause. The question 
will then be upon the letters, 
whether what has passed 
amounts to a contract not- 
withstanding the statute of 
frauds; this depends on a 

(a) Hetley,l58, (b) I Ves.^26. 

(c) 3 P. FT.SSr. n. B. 


Cases in chancery. 


The bill further stated that, in pursuance of the agree- 
ment, the Plaintiff paid to James Gordon the annuity 
xmtljanuary 1808, and 500/. part of the 4500/., and 




number of circumstances, 
and it is therefore improper 
to determine the matter upon 
a demurrer. 

Solicitor-General in reply. 

The argument for the de- 
murrer is, we admit the letters 
were written as stated in the 
bill, but we contend that they 
do not amount to an agree- 
ment in writing ; and this is a 
matter which may well be 
determined on a demurrer. 
There must be a written 
agreement of one party to 
sell, and of the other party 
to buy. It may be by letter. 

But in the present case, take 
every part of the bill to be 
true, yet there is no contract. 
As to the objection, that this 
is a speaking demurrer be- 
cause it alleges the statute 
of frauds, it is clearly not so. 
The statute of frauds is not 
alleged as a fact ; it is the law 
of the land. 

The Chancellor overruled 
the demurrer, thinking the 
letters imported so much as 
intitled the Plaintiff to an 
answer. — From Mr. AfiV- 
Jbrd*s Notes. Lord Coldies* 
ters MSS. 

In Chancery. 1723. 

To a bill 
for specific 
toce, a 
plea that 
there was 
no agree- 
ment io 
was over- 

The Defendant was pos- 
sessed, for the remainder of 
a lease for forty years from 
the Dean of Si. Paul*s 
(whereof about two years 
only were to come), of a very 
considerable estate, consist- 
ing in houses and land at 
Shadxvell, and she was like- 
wise seised and possessed of 
the market, and profits of the 
market there, which were no 
part of the Dean's lease. The 
Plaintiff came to an agree- 


ment with her for the pur- 
chase of her tenant right in 
the Dean's lease, in order to 
renew with the Dean, and 
likewise of her right and in- 
terest in the market, for 750/., 
but this agreement was not 
in writing ; but the Plaintiff, 
in order to his being better 
recommended to treat with 
the Dean for a new lease, 
desired the Defendant to give 
him a letter to the Dean for 
that purpose ; and thereupon 
f 2 the 






interest on the remainder; and also paid the debt of 
104tOL to Boddington and Betiesworths that the mort- 
gage debt of 55591. was afterwards paid by Messrs* 


the Plaintiff wrote the letter, 
which the Defendant signed, 
directed to Dr. Godolphin to 
this purpose. *^ Sir, I having 
agreed with Sir Casar Child 
for the purdiase of all my 
right and interest in the 
lease which I hold of you for 
the remainder of the term, 
desire you will please to ad- 
mit him to treat with you, 
which will oblige your humble 
servant, Fra. Comber" Upon 
this the Plaintiff went to Dr. 
Godolphiriy gave him the 
letter, and agreed with him 
for 15,200/. for a new lease 
for forty years, on a surrender 
to be made to him of the old 
lease; and the Dean there- 
upon wrote to Mr. Gilbert, 
his agent, acquainting him 
with the agreement he had 
made with the Plaintiff, and 
forbidding him to treat with 
any other person. In the 
mean time a draft was pre- 
pared for the defendant's as- 
signment of the residue of 
her lease to the Haintiff, and 
being left with the Defend- 
ant's counsel, several al- 
terations were made in it 
by him ; and at length the 
terms and draft were settled 
by counsel on both sides. 

and the Plaintiff ^ve 15 
guineas to counsel on that 
occasion; but the Defend- 
ant insisted upon having 250& 
more, in the whole lOOOL^ 
before she would assign her 
interest to the Plaintiff; 
which he was forced to com- 
ply with, and this was one 
of the alterations made la 
the draft. After which, both 
the Dean and the Defendant 
being inforn>ed that their in- 
terest in the premises waa 
much more valuable, refused 
to perform their agreement 
with the Plaintil^ who had 
provided his money for that 
purpose ; upon which the 
Plaintiff brought two several 
bills, one against the Dean, and 
the other against the present 
Defendant, who both pleaded 
the statute of frauds and per- 
juries, and that there was no 
agreement in writing ; but the 
Dean's plea was overruled 
upon the letter he had sent 
to Mr. GUbert his agent, 
wherein he had taken notice 
of the agreement particularly^ 
and how much he was to have 
for the new lease ; and as to 
the Defendant's plea, that 
was ordered to stand for an 
answer with liberty to except, 



Lang, Tktririf and Co., of I/mdoriy who had in con- 
sequence a considerable claim on the estates, for se- 
curing the amount of which the Plaintiff conveyed 


and the benefit of it saved to 
dit hearing; both these being 
heard by the Master of the 
Rolb in the absence of the 

The Defendant being dis- 
Mtiafied, petitioned for a re-ar« 
gomg of her plea, which now 
caiae on before the Chancel- 
lor. The principal objection 
wai, that this letter not men- 
tioDiDgaDy of the terms of the 
agreement, would make way 
for all that peijury which the 
atatate intended to remedy; 
that one might swear the 
agreement was for one thing, 
another for another thing; 
one that it was for so much 
money, another for less ; and 
here it was plain the first 
agreement, whatever it was, 
was raised from 750/.tolOOO^.; 
and the draft of the ingross- 
ment of the conveyance could 
be no ways binding upon the 
parties to execute ; that -the 
agreement was not mutual, 
and if the Plaintiff had re- 
fused to have performed, the 
Defendant could have had no 
remedy to have compelled 
him to it ; that this letter was 
written by the I^aintiff him- 
aelff and though the Defend- 
ant signed it, yet it was only 


as a letter of recommendation 
to introduce him to treat with 
the Dean ; that this 750/. was 
to be paid for the interest in 
the market which the Dean 
had nothing to do with, as 
wel] as for the remainder of 
the Dean's lease, and no notice 
was taken or any distinction 
made in the letter concerning 
it ; that the Plaintiff being at 
liberty to except, would cer- 
tainly except to the plea, till 
they had an answer whether 
there was such agreement or 
not; and if the Defendant 
should be forced to own it, 
the Court might decree a 
performance of it, and so the 
benefit of the statute be 
wholly taken away from the 

On the other side it was 
argued, that letters written to 
third persons, and not to the 
party himself, had been fre- 
quently held to be a sufficient 
writing to take the case out of 
the statute ; that if the terms of 
an agreement had been cer- 
tainly expressed, that would 
have been the same as the 
agreement itself, and there 
would be no difference be- 
tween an agreement and a me- 
morandum] of an agreement; 
f 3 that 






them to Messrs. Arnold and Co. of Grenadoj in trust 
for sale, if the Plaintiff should make default in re- 
ducing the mortgage debt ; and that the produce of the 


that its being written by the 
Plaintiff was nothing to the 
purpose, since the Defendant 
had signed it ; and the drafls 
being settled by counsel on 
both sides, 15 guineas paid 
upon that occasion, and the 
purchase money provided by 
the Plaintiff, were as much 
an execution of it on his part, 
as where a man agrees by 
parol to let a lease, and suffers 
a lessee to go and build, and 
then refuses to make the 
lease. This Court has fre- 
quently assisted in that case. 
The Lord Chancellor. This 
is barely a plea of the statute 
of frauds and perjuries, with- 
out any denial of the agree- 
ment : if, indeed, the plea 
had been as to so much as 
sought any discovery of an 
agreement, that there was 
nothing reduced into writing, 
and then the answer had de- 
nied the agreement, this had 
been directly a plea within 
the statute; but here it is 
plain there was an agreement^ 
and the plea only goes to the 
not being compelled to an 
execution or a performance, 
being not reduced into writ- 
ing, without any denial of 
the agreement. The primary 

intention of the act, and the 
principal object which the 
parliament had in view, was, 
that no action at law should 
be brought upon an agree- 
ment not reduced into writ- 
ing, because they could not 
suffer or give way to the 
variety of evidence which 
might be given at law in that 
case; and where an action 
will not lie at law, it is rea- 
sonable no bill should be al« 
lowed in this Court : but this 
is not a general rule ; as in 
case where the agreement is 
performed in part, on a con- 
tract for a building lease by 
parol, though the agreement 
is denied, yet this Court hath, 
admitted parol evidence to 
prove it on the head of fraud ; 
yet there the building does 
not in the least shew what 
the terms of agreement were, 
and therefore it lies as much 
open to fraud as the present 
case : but where there is any 
fraud this Court interposes ; 
and is it not strange to say, I 
will not put it in issue, whe- 
ther any agreement or not, 
but whether signed or in 
writing or not ? But here is 
a note in writings owning that 
she had agreed, and there- 
^ fore 



estates becoming insufficient to discharge the mortgage 
debt, tlie mortgagees, in March 1808, entered into pos- 
session of the estates. 





fore no colour to say that 
there was no agreement ; but 
if by her answer she should 
deny that there was any 
agreement, it will then be 
proper to consider whether 
the Plaintiff shidl be admitted 
to give evidence of it; and 
here the fees paid to the 
counsel, the drawing of the 
drafts, and ingrossing them, 
and the Plaintiff providing his 
purchase-money, are as much 
an execution of it on his 
part, as the laying out money 
on the buildings was in the 
other case ; and the circum- 
fltances of his agreement with 
the Dean, are in consequence 
a proof of his agreement with 
the Defendant, which if she 
owns, where is the danger of 
perjury? Indeed, a note or 
memorandum of an agree- 
ment must mention the sub- 
stance of the agreement in 
short, otherwise no action 

can be brought upon it at 
law ; but where there is fraud 
this Court may interpose, 
though the agreement is not 
reduced to such a certainty ; 
and it is proper for the Court 
to look into it. 

The Chancellor therefore 
confirmed the order made by 
the Master of the Rolls ; and 
said, though the Defendant 
could have no remedy perhaps 
against the Plaintiff on this 
agreement, for want of his 
having signed some writing or 
memorandum, that was not 
material; for the act does 
not say, unless both parties, 
or unless mutually signed, and 
therefore an action lies against 
the party who has signed. — 
From Lord Colchester % MSS. 

The bill was dismissed on 
the hearing, 14th December 
1724. Reg. Lib. A. 1724. 
fol. 56. 

In the Exchequer. HU. 12 Geo. 1. 1725. 


I. The Plaintiff was the De- annum, which was proved in 
^ fondant's servant at 505. per the cause to be paid, and 

5 of 

lot the property of the grantor, established against him, as an agreement 
ly lands of equal value. 

^ F f 4 during 





The bill proceeded to state, that upon the death of 
the Plaintiff's father, the Plaintiff became entitled to 
certain estates in America, to which tlie Defendant James 


daring her service the De- 
fendant procured a deed to 
be drawn by an attorney, 
whereby lands of 22/. per 
annum were settled for life, 
with usual covenants to re- 
pair, and for quiet enjoyment, 
with a reservation of a pepper 
com rent; and there was a 
receipt endorsed for Ss. as 
the consideration money, but 
blanks were left for the names 
of the parties. 

The Defendant afterwards 
filled up the blanks with his 
own name, as the grantor, 
and the Plaintiff's name as 
the grantee ; but it appeared 
after all tobeafiction,andthat 
there were no such lands as 
were described in the deed ; 
and it was proved in the 
cause, that when the Plantiff 
came to demand where the 
lands were, the Defendant 
laughed at her, and said they 
were in nubibus ; whereupon 
the Plaintiff brought her bill 
to be relieved, and to compel 
the Defendant to convey lands 
for the same estate, and to 
the same value. 

For the Defendant it was 
urged, that it appearing that 
the Plaintiff was a mere vo- 

lunteer, she ought not tp 
have the aid of a court of 
equity; that she did not come 
to be relieved against a fraud, 
by which he was deprived of 
any thing, but to force the 
Defendant to give her what 
he never intended. That it 
was turpis causa^ and not to 
be favoured in equity. 

Some proofs were then 
read to shew a criminal con- 
versation between the Plain- 
tiff and the Defendant, but 
not fully. 

Curia of opinion that 
the Plaintiff ought to have 
relief; and that it should go 
to the deputy to see a good 
conveyance made to the Plain- 
tiff of Defendant's lands to 
the same value, and to take 
an account of the rents and 
profits from the date of this 
fraudulent deed, as if such 
lands had been really con- 
veyed by it ; Sindper 

Gilbert yChier Baron. This 
is not within the case of 
volunteers, for here is no- 
thing at all given, and, there- 
fore, no remedy can be at 
law; but in the case of a 
volunteer where something is 
conveyed, damages may be 




Gordon abo laid daim on the ground of the FlaintifPs 
illegitimacy, and the Plaintiff under that impression was 
prevailed upon to. enter into another agreement; and 



recovered^ at law, on the 
covenants, and, thereforej 
equity will not interpose. 

Halcp Baron. If the con- 
sideration did arise, ex turpi 
eauiUpyet it is good in equity, 
where there is no creditor, 
te»; and courts of equity, in 

su^ch cases, will decree; per* 
formancey and that as a pur 
nishment for the party ; and . 
the man in this case is more 
criminal, for it must be • sup* 
posed the solicitation first; 
came from him* Brom Mr. 
Caxe'M MSS. 

In the ExcHEQUuu 27th April 1798« 



i Thomoi GyleM on the 4th 
^ of October 1 770 died a bache- 
lor intestate, seised in fee of 
two several copyhold estates 
in OreiU Coxtoell and Little 
Cotnoellf and leaving two ne- 
phews, Thomas Robinson BXkd 
^ WSUam Robinson (children 
of his sister) and also William 
Robinson (who was a common 
soldier), the son of Richard 
Robinson^ the second nephew 
of the intestate, and brother of 
the said Thomas Robinson 
and William Robinson^ who 
died in his uncle's life-time. 

Thomas Robinson, the el- 
dest nephew, and the heir at 
law of the intestate, having 
gone to reside in Ireland, 

upwards of forty years be- 
fore the death of his uncle, 
and Richard being then dead, 
William^ the third nephew, 
took out administration to 
his uncle, and also entered 
into possession of the c(^y- 
hold premises. 

In April \n% William 
the soldier, having then lately 
arrived in England^ went to 
Great Coswell, accompanied 
by his uncle William, and 
claimed title to the copy** 
hold estates, alleging that he 
had been lately in Ireland, 
where he had been assured 
of the death of his uncle 
Thomas about two years be- 
fore, without issue ; and Wil- 

(«) Shortly reported 1 Anstr, 1 1 





articles for that purpose were executed between the 
Plaintiff and the Defendant James Gordon, dated the 
10th of February 1805, whereby, afler reciting that the 


lianif the uncle, alleged the 
same thing, and gave up the 
possession of the copyhold 
premises to William^ the 
soldier, as heir at law of the 

WUliam, the soldier, de- 
clared his intention to sell 
the premises immediately, 
and sent for the'stewardof the 
manor, who lived thirty miles 
off, to take his admission, and 
his surrender to the purchaser. 
When the steward came, 
William^ the soldier, sent for 
two or three persons to a 
public house at Coxwellf and 
about nine o'clock in the 
evening put up the premises 
to auction; Richard Morse 
and another person bade for 
them, and at the third bidding 
Richard Morse was declared 
the purchaser. 

Richard Morse was accord- 
ingly admitted to part of the 
copyhold premises, and the 
other part was (by his di- 
rection) surrendered to the 
use of WiUiam Morse^ his 
son ; Richard Morse paid the 
purchase money to WiUiam^ 
the soldier, and the court 
fees. He afterwards laid out 
a considerable sum of money 

in repairing the premises, and 
died in 1785. 

It afterwards appeared that 
Thomas Robinson^ the uncle, 
in fact, survived the intestate, 
and was living at the time of 
the sale to Morse, so that 
JVUliamy the soldier, had not 
then any title, whatever, to 
the premises.- But Thomas 
Robinson afterwards, viz., in 
1778, died without issue ; and 
upon his death the premises 
descended upon William^ the 
soldier. No act was done 
by William, the soldier, afler 
the death of his uncle Tho' 
mas to confirm the surrender 
or sale to the Morses; and 
William, the soldier, died in 
1781, leaving John Faulkner^ 
Mary Shade, Hannah Ward, 
and Ann Robinson, his heirs 
at law. 

In Easter 1788, actions of 
ejectment were brought by 
John Faulkner, James Shade, 
and Mary his wife, Samuel 
Ward and Hannah his wife, 
and Ann Robinson, against 
Ann Morse, who claimed her 
free bench in the part surren- 
dered to Richard Morse and 
William Morse, to recover 
possession of these premises,on 




testator was possessed of or entitled to certain lands and 
tenements in Pennsylvania^ and also to about 5000 acres 
of land in Vermont j it was agreed that if the Plaintiff 



the ground that nothing passed 
by the surrender of William^ 
the soldier^ and that the 
copyhold premises, there- 
fore, descended on the lessors 
of the Plaintiff, as his heirs at 

A case was reserved for 
the opinion of the Court of 
King's Bench, and afler great 
consideration, judgment was 
given for the lessors of the 
Plaintiff, (a) 

Ann Morse and JViliiam 
Morse then filed the present 
bill against Faulkner , Shade, 
and wife. Ward and wife, and 
Ann Robinsony praying that 
they might be decreed to 
make a surrender to the 
Plaintif& respectively of the 
several parts of the copyhold' 
premises which were sur- 
retidered to Richard Morse 
and WiUiam Morse bv Wil- 
liam Robinson, the soldier, 
and that they might be 
quieted in the possession 
thereof, and that the defend- 
ants might be restrained by 
injunction from proceeding 
to extension upon the judg- 
ment in ejectment. 

Partridge and Cox for the 

Plaintifi. It is now settled 
by the judgment of the Court 
of King's Bench, that the 
Plaintiffs have not a legal 
title to the premises in ques- 
tion. They, therefore, come 
to a court of equity in the 
character of fair purchasers 
for a valuable consideration^ 
to have that legal title made 
good to them by the heirs at 
law of the vendor. This is 
the common case of a pur- 
chaser coming to have an 
agreement specifically per- 
formed, or a defective con- 
veyance supplied; and it is a 
species of relief which courts 
of equity are in the constant 
habit of giving, either against 
the vendor himself, or any 
claiming as heir or volunteer 
under him, whether the agree- 
ment for the sale remains 
wholly unexecuted, or is de- 
fectively executed, and whe- 
ther the vendor had good 
title to the premises at the 
time of the sale, or whether 
such title accrued to him 
afterwards ; and although the 
case at law turned upon the 
difference between freehold 
and copyhold premises, yet^ 

(a) GoodHOe v. Moru, 5 T, B. 36S. 





sbcHitd recover possession c£ the estates, be should seU 
them, and give notice thereof to James Gordon^ and pay 
to him one-fourth of the money produced by the sale; 


it is evident) that no distinc- 
tion of that sort can arise 
hese, for the claim of the 
Flaintiffi is to have a good 
legal title made to them by 
all necessary means; and in- 
deed most of the cases on 
defisctive conveyances arose 
on copyholds* In Wkeman 
v. Roper (a) the Defendant 
was only presumptive heir to 
his, brother, and agreed to 
settle certain lands to the 
uses. of the marriage within 
one month af^er his brother's 
death; there the objection 
waa taken that» at the time 
of this agreement, the De- 
fendant had no mterest what- 
ever in the lands; but as they 
afterwards descended upon 
him, he was decreed to per- 
form his agreement. InBar* 
ken V. HiU(b) the heir of the 
vendor was decreed to sur- 
render the copyhold premises 
to a purchaser^ So in Paite- 
son V* Thon^soH (c) the heir 
of the mortgagor was decreed 
to .surrender the copyholds 
to the mortgagee. In Martin 
V. Seamore (d) the bill was by 

(a) I Rep.m Cba. B4. 
\b) t J2^.tf»C%a.ll5. 
(c) Bep, temp. Ihieh^Sli^ 

mortgagee of copyhold^ the 
surrender having been de- 
fective ; and it was particu- 
larly argued in that case, 
that as the Plaintiff would 
have been clearly entitled to 
relief upon a bare agreement, 
he ought not to be in a worse 
place by having a surrender 
though defective. In Clayton 
V. The Duke of Newcastle (e) 
the heir sold in the life-time 
of the ancestor, and received 
the money, and when the 
land descended upon him he 
was decreed to convey ; which 
case seems very like the pre- 
sent. In Taylor v. Wheeler (J) 
a surrender of copyhold by 
way of mortgage, not pre- 
sented within due time, was 
made good in favour of the 
mortgagee, against the as- 
signees under a commissioii: 
of bankrupt against the mort- 
gagor. That the Court will 
decree the performance of an 
agreement, although the ven- 
dor has no title until after the 
agreement, appears, by the 
constant form of the reference 
to the Master in all cases of 

(d) Cha. 17a 
\e) a Co. in Cha. 112. 
if) 2 Vem. 5«4. 



and alsoy within twenty-four months after the same 
should be recovered, the fiurther sum of 6Sl. 



specific performance^ viz., 
to inquire whether the ven- 
dor can make a good title to 
the premises, not whether he 
could at the time of the 
agreement make such title. 
This was settled upon great 
consideration in the case of 
Langjbrdv. Pitt (a); and the 
Master of the Rolls there men- 
tioned a remarkable case of 
Lord Stourton v. Sir T. Meersy 
where an act of parliament 
was necessary to make good 
the title, and yet the Court ul- 
timately executed the agree- 

Lord Chief Baron. I have 
great doubts about the equity 
upon which the bill proceeds, 
and if I found it necessary in 
this case to lay down any 
-'^general rule upon the sub- 
ject, I should think the case 
deserved great consideration. 
It is true that when a man 
having a good title agrees to 
sell to another, this Court 
considers such an agreement 
as a lien upon the land, and 
will upon that ground decree 
the heir, or any volunteer 
under the vendor, to make 
good such agreement. It is 
also true that when a man not 

having a title at the time, 
agrees to sell, and afterwards 
such title accrues to him, the 
Court binds the conscience 
of the vendor himself, and 
compels him to make good 
the title at any future period, 
when he can ; which was the 
case of Clayton v. Duke of 
Newcastle. But in this case 
the surrenderor not having 
any title whatever to the pre- 
mises, at the time of the sur« 
render, his agreement would 
not raise a lien upon die 
land; and although the pre- 
sent Plaintiffs might have 
been relieved if they had 
filed their bill against him in 
his life-time, that is after his 
title had accrued, yet it does 
not follow that therefore they 
can be relieved against his 
heirs* Neither the land it- 
self, or the conscience of the 
present Defendants, is bound 
by this act of William the 
surrenderor; and I am not 
aware that on a bill filed for a 
specific performance against 
the heir of a person who sold 
without having any title at 
the time of the bargain, the 
Court has referred it to the 
Master to inquire whether 

(a) 8 P. W.6^. Wymi. Morgtm^ 7 PMiflOt. 






The bill then stated that the Plaintiff had recently 
discovered that a private marriage between his father 
^nd mother took place in America^ long previous 


the vendor had any title to 
the premises at the time of 
his death. 

But really I do not think it 
necessary to go into the ge- 
neral question upon this oc- 
casion. This is not the sort 
of sale that it becomes this 
Court to take notice of. A 
common soldier goes down to 
a country ale-house^ and late 
at night calls together two 

or three people, and offers to 
sell his estate ; and then two 
persons bid for it, and the 
affair is all over. The trans- 
action is not serious enough 
for this Court to interfere in ; 
and the parties must take 
their course at law. 

The bill was dismissed with- 
out costs. — From Mr. Cox's 
notes. Lord CokhesteruMSS. 

BACKHOUSE v. MOHUN, CROSBY, Sen. and Jun., and 


Pasch. 10 Geo. 2. 1736. In Chancery. 

Specific peN ^^ ^^ have a specific per- 
formance of a formance of an agreement 
contract not ^^^^ between the Plaintiff 

signed by the 
party enforc« 

and Mohun, for the purchase 
of an estate of Mohuiis, The 
Plaintiff and he had treated 
about it, and written several 
letters relating thereto. The 
last letter from Mohun was in 
1731, who said therein that 
the Plaintiff had offered a cer- 
tain sum which Mohun ac- 
cepted. But it did not ap- 
pear whether the Plaintiff had 
done any thing to bind him- 
self, for the Defendants pro- 
duced none of the letters; 
but one Harmon swore that 

subsequently to the agreement 
between the Plaintiff and 
Mohuny he had proposed 
himself as a purchaser of this 
estate, and that he was in 
company with Crosby ^ senior, 
and the Plaintiff was sent for, 
and they entered into a con- 
ference concerning the estate, 
and the Plaintiff answered in 
the negative, but said not 
what words were used ; that 
the Plaintiff said he would not 
go to law, but would rather 
write to Mohun before he en- 
tered into any controversy 
about it ; a letter was accord- 
ingly senty but not produced. 




to the bi^th of Peter Gordon ; and charging that the 
Defendants, James Gordon and R. B. Fisher^ and 
S, Bourlce^ (to whom James Gordon had assigned some 


Harrison adcnowledged he 
had a previous discourse with 
Crosby f senior, about the af- 
fair; which Crosby y as it clearly 
seemed, was the real pur- 

Far the Defendants it was 
insisted that there was no 
reason they should be bound 
hy Mohun*B letters, when non 
constat the Plaintiff was bound 
on the other side. But, se- 
condly, supposing they were 
x>riginally bound, yet the 
Haintiff had waved the agree- 
ment ; and that may be done 
hy parol, Goman v. Salis' 
bury (a), for it is only to re- 
hut an equity. 

Lord Hardmckcf Chan- 
cellor. The first question is, 
whether there is any agree- 
ment in writing between the 
plaintiff and Mohun^ for as it 
relates to lands and tene- 
ments, it must be in writing ; 
and I think it sufficiently ap- 
pears so, and that it is a com- 
plete absolute agreement to 
bind the Defendant Mohun. 
Many cases have occurred 
where agreements for lands 
appearing in writing under 
the hand of the party who 

was to be bound by it (which 
are the words of the statute 
of frauds), notwithstanding 
there was no writing of the 
other part, have been carried 
into execution ; and I have 
known the objection often 
taken of its not appearing on 
the side of the purchaser, and 
as often overruled. Effect of want 
may be taken as an ingre- JX'^ 
dient to add weight to other taddi^ to 
objections. Besides here were fo'ce a con* 
letters from the Plaintiff to ^"^^ 
MohuHf which he does not 
think fit to produce, and the 
Plaintiff cannot. Therefore I 
think Mohuns letter is suffi- 
cient evidence of an agree- 
ment in writing. 

Secondly, the question is^ 
whether any act has been 
done on the part of the Plain- 
tiff Backhouse to release or 
wave the agreement? The 
defence insisted on is of a 
tender nature, and to be re- 
ceived by a court of equity 
with great caution ; for even 
the agreement to depart from 
a former agreement, is . as 
much an agreement concern- 
ing lands and tenements as 
the first ; and therefore, taking 

(a) 1 rm».a40. 



'portion of his interest under tlie agreemeiits with i&e 
PhindfiP,) had lately commenced an action ih the Court 
of Session in Scotland against the Plainti£^ for the re- 
mainder of the sum of 4500/.; that the PlaintifTs father 
-and motha: were privately married in America^ by a 
chaplain of the army, and that it was merely in conse* 
quence of a wish expressed by the friends of the Plain- 
tiff's mother that they were afterwards publicly married ; 


When parol 
or implied 
defence in a 
suit for q;>eci« 
fie perfonn- 

it originally^ and abstracted 
Irom circumstances, ought as 
tniich to be in Writing, and is 
^aally within the statute of 
frauds : but, notwithstanding 
that, if it clearly appears that 
a Plaintiff in a court of equity 
insisting on such an agree- 
ment contained in letters, has 
by acts done, waved it, and 
thereby drawn in another to 
purchase, and complete his 
purchase^ in such case it 
would be a good defence to 
be insisted on by the second 
purchaser, shewing that he 
proceeded hondfide^ and con- 
sequently would rebut ahjr 
equity of the first purchaser. 
But I think there is not dliffi- 
dent evidence of such matter ; 
it chiefly depends on the testi- 
isiony of Harrison, who makes 
an extraordinary figure in the 
cause, aad admits a previous 
cbnsultation between him and 
Crosby f senior, who seems the 
effectual purchaser; eind diat 
objection, though I refused it 
as to his competency^ yet 

goes to his credit, fle says 
a letter was. to be written to 
Mokun to prevent contro- 
versy. What occasion watt 
there for that, if the Plaintiff 
had given up his purchase? 
The letter was written by the 
Plaintiff; if it had been pro- 
duced, what he and Crosbtff 
senior, said, might have ap- 
peared. But the letter from 
Mohun is produced, and im- 
ports directly the reverse of 
what Harrison supposes. 

Decreed that the Plaintiff 
should have the benefit of his 
purchase. MS. 

6th May 17S6.— " His 
Lordship doth declare thai 
the Plaintiff is entitled to the 
benefit of his agreement for 
the purchase of the estate at 
the sum of S15/*, and to have 
it carried into execution ; and 
doth therefore think fit, and 
so order and declare that the 
agreement be performed, &c.** 
— Reg. Lib. A. 17S6. fbl. 627, 



and that' in the register of the church of Christ Chaxh 
aod iS^. Peter's in Philadelphia^ the Plaintiff's baptism 
is. registered thus, ^^ Harry Gordon^ son of Captain 


Hil. 13 Geo. 2. 29th March 1740. 

Lord Hardwickef Chancel- 
lor, gave his opinion on the 
foUowing case: This bill is 
brought fpr two purposes, 
fnt, for a division of lease- 
hold lands, held by the De- 
•&Ddant from the late Earl of 
Pembroke^ the Plaintiff's &- 
mer, from freehold and copy- 
hcdd of the Plaintiff, the 
boundaries of which were 
confounded by unity of pos- 
session; and for a specific 
performance of an agreement 
&r buildmg a house with the 
appurtenances in ; 

Of, secondly, to have a per- 
fiprmance of a subsequent 
agreement for the exchange 
of certain freehold lands of 
the Defendant, on which he 
has built a house, with other 
equal quantity of lands of 

the Plaintiff. As to the divi- 
sion and setting out of the 
lands, there is no dispute, 
but that the lands should be 
properly set out on both 
sides ; but the great point is^ 
as to the Courts decreeing a 
performance of either of the 
agreements. The bill is in 
the disjunctive, and prays 
that either the Defendant 
may be decreed to perform 
his agreement for exchange; 
or if not compellable to do 
that by the stnct rules of 
law, that then he may be 
compelled to build a new 
house on Plaintiff's leasehold 
lands. On this two questions 
have been made ; first, whe- 
ther any agreement whatever, 
either for building a new 
house, or for making an ex- 




(a) The proposition, that a 
ipedfic performance may be de- 
creed of a covenant to build, 
is supported by Ho/t v. Holt, 
9 Fern. 522.; Allen v. Harding, 
S Eq. Ab, 17.; City of London r. 
Kath, 3 Atk. 515,, 1 Ves, 12.; 
Rook V. Worth, 1 Ves.46U; 
Motelctf V. Virgin, 5 Vcs. 184. ; 

Vol. III. G 

and opposed by Errington v. 
Aynetfy, 2 Bra, C, C, 343. ; Lu- 
cas V. Commerford, 3 Bro, C. C. 
166., 1 K«. jun. 235.,\Mcr, 265.; 
toid Flint v.Brand(m,S Fes. 159.; 
and sec Rayner v. Stone, 2 Eden , 
128. ; Whistler v. Mainwaring, 
3 Wooddeson, leot. 465. n.; Hi/l, 
v.Bareiatf, 16 Fes, ^05, 

g change, 




Hwrry Gordon and Hannah his wife» bom the 4tk of 
October 1761 ;" prayed that the agreements might be 
declared void, and be delivered up to be canceUed ; an 


change, has been sufficiently 
proved; second, if it is, 
whether either of those agree- 
ments b such, as in the cir- 
cumstances of the case, a 
court of equity will carry 
into execution? The first 
depends on the proofs in the 
cause; and I will consider 
them, first, as to the pulling 
down the old house and 
building the new, and, next, 
as to Uie subsequent agree- 
ment of exchange. 

As to the first, the proof 
stands thus : it is proved by 
Mr. Jeromt steward to the 
Earl of Pembroke^ that in 
1731 a proposal was made to 
take a lease of a farm called 
Moses* farm, then lately pur- 
chased in Foulston and JV^it" 
siottf where the late Earl had 
another estate lately purcha- 
sed, and Mr. Thorpe a free- 
hold estate. It appears the 
agreement about taking ilfo- 
ses* farm, was on 16th August 
1731 9 on which there were 
an old house and malt-house, 
&c,f very much out of repair, 
for which it was proved the 
Defendant was allowed SOL 
for repairs ; for notwithstand- 
ing another colour has been 
endeavoured to be given to 

it, it is clear it was for the 
repair of Moses* farm. The 
lease is dated 86th August 
1731, and executed by the 
late Earl the 13th December 
following ; the counterpart 
was laid by not executed till 
the 8d October 1782. Be- 
tween the execution of the 
lease and the counterpart, 
this proposal was made by 
Thorpe for pulling down the 
house in Moses* &rm, and 
new building it; and he de- 
sired Gore to write to the 
Earl about it, and the reason 
he gave was, he would hold 
another fbr his habitation on 
Foulston fkrm. Gore desired 
him to give a plan of the 
house he intended to build ; 
the Defendant replied to be 
sure he would not build a 
worse than was thereon al- 
ready ; which amounted to an 
agreement to build as good a 
houseas that on Moses' fiurm • 
and upon that agreement, and 
no other, the Defendant was 
to pull down the tenement on 
Moses* farm. In October 
1732 the Defendant began to 
pull down the house ; and ii 
is sworn and admitted, that 
the building cost lOOOk and 
upwards, and that he used 
' the 


ncoomitf and repayment by James Gordon^ of the toms 
paid by the Plaintiff under the agreement; and an 


the old materials. That is 
the proof on the part of the 

. The Defendant in his an- 
Mrer would- represent that 
Iha proposal for pulling down 
Ibe house was at the time 
efthe lease, and he agreed 
that he would make other 
iterations on FtmUton farm ; 
httt there is no proof of this : 
en die other hand it is con- 
indicted by all the witnesseSy 
and by GorCf who is witness 
to the proposaiy who swears 
ui supra g it is contradicted 
dso by the fact, which I take 
to be clearly established, that 
the 80i<. were allowed for re* 
pairs of Moses* tenement; 
fiir it is then absurd that 
there should be a proposal 
at that time for pulling it 
down, which the Defendant 
insists upon in his answer. 

It is said for the Defendant, 
ia respect of the first agree« 
meat, that it is proved only 
by one witness (Oofe) against 
the Defendant's answer, and 
by the rule of this Court that 
is not sufficient evidence to 
ground a decree on ; and the 
rule is certainly so ; but it is 
carried too far in this case : 
for supposing the Defendant's 


answer to be a full denial, 
yet it is supported by more 
than one witness; for it is cor- 
roborated by circumstances 
proved by other witnesses; 
so that it amonnta to mbre 
than proof by one witness, 
and would be sufficient to 
found a decree on. But 
there is no occasion to resort 
to that argument, because 
the Plauitiff's charge is not 
denied by the Defendant* 
The Plauktiff says he promised 
to build him as good a house ; 
and the Defendant only de- 
nies that he did, at the time, 
when he desired Gore to 
apply for leave to puU down 
Moses* tenement, or at any 
other time, propose that he 
would build or set up in the 
stead or place of the old 
house, on some part of the 
Earl's estate, a better and 
more coounodious house for 
his habitation, and he insists 
that he made no other pro- 
posal than at the time of the 
lease, and that was only to 
make other improvements on 
the FouUton farm. This is 
no denial of the agreement ; 
it may be of circumstances in 
the bill, but not of the equity 
of it ; for the proof is, he pro- 
g 2 mised 







. The Defendant James Gordoti by his answer, daim- 
ing to be the eldest legitimate son of Colonel Gordon, 
stated that in 1785, Colonel Gordon^ when at Ports- 

raised not to. build a worse 
house; which may be, though 
he did not promise to build a 
better. Therefore the first 
agreement is fully proved, 
and not at all contradicted, 
nor clearly denied by the an- 

The proof as to the second 
agreement for the exchange 
is, the testimony of Mr. Gore^ 
who is the only witness ; and 
as to the particulars of that 
agreement he swears that 
about tlie latter end of 1732, 
the new house was begun to 
be built, and soon afler, as 
they were about the found- 
ation, the deponent was riding 
by and saw it was building on. 
a different place than that 
agreed upon ; upon which he 
inquired whether it was upon 
the- Defendant's freehold or 
the Plaintiff's leasehold es- 
tate ; and was informed that it 
was uncertain, and hard to 
distinguish the Defendant's 
freehold lands from the De- 
fendant's leaseholds, which 
he held under Lord Pembroke^ 
but that it was generally be- 
lieved to be on part of .the 
Defendant's freehold ; the De- 
fendant answered, he did not 
know which it was, but that 


if it proved so, he would ex- 
change the ground on which 
the house was building for 
other equal quantity of land 
on Moses* farm ; by which* 
Gore apprehended the Earl 
was to have the fee of the 
Defendant's lands, and the 
Defendant the fee of the- 
EarFs. Gore made further 
inquiries, but could get no. 
better information as to the 
boundaries of the land ; he, 
therefore, told the Defendant: 
it would be better to make, 
an exchange, and the De-. 
fendant told him that as he 
had before promised he would- 
make the exchange at any 
time; and so the deponent told 
the Earl. The Defendant 
swears that he and Gore 
appointed Mr. Day to make 
the admeasurement of the 
ground, and met the 9th of 
February 17S5, a long time 
afler the new house was be-. 
gun to be built, which was 
at the latter end of 1732*. 
One Spire made the admea- 
surement, and said it would 
be better to take in about 
six luggs, and the Defendant 
said, he would look out a 
piece of ground to . be ex- 
changed for the six luggr, 



moiUhj previous to a voyage to Grauida^ wrote, with his 
own hand, an instrument, being a will or ditifc of a wilh 
containing, among others, the fiidlowing clauses : <^ First, 
; to 



and bid Spire take it in. This 
fact is supported by Spire^ 
who gives an account of a 
subsequent admeasurement, 
and that Mr. Grant was de- 
sired to join with the Plaintiff 
in the admeasurement ; and 
that he asked Spire why the 
lands were to' be measured, 
and asked the Defendant 
whether he had articled for 
the exchange of the lands ? 
" No," said Thorpe, " but his 
word was as good.'* ' And this 
proof on behalf of the Plaintiff 
is not contradicted. 

The second question is, 
whether one or other of these 
agreements is such as a 
court of equity vrill carry 
into execution ? And I am 
of opinion here is not a suffi- 
cient ground to decree < a 
performance of the agreement 
of the exchange. There are 
indeed very strong circum- 
stances in the case to induce 
a private conviction ; but all 
sorts of proofs which induce 
private conviction are not 
such as will found a decree 
in this Court. One dbjection 
is, that it is not in writing, 
but only a parol agreement 
about land and tenements, 
and so void by the stati^te - of 
•: I Gg 

frauds. I answer, such agree- 
ments are not void, but may 
be taken out of the statute 
according to the rule of this 
Court, by having been in part 
performed ; for in such case 
this Court will decree a total 
performance : but I see no 
ground to say there has bc6n 
a partial performance ; for as 
to the admeasurements, I do 
not look upon that as a per- 
formance of any part, of the 
agreement ; and so here is no 
certain proof as to any part 
of the agreement whereon to 
found a decree. Gore is un- 
certain as to the time when 
this, agreement for the ex- 
change was made, for no 
time is -mentioned; he only 
says, that soon after rthe fii^t 
agreement he < was riding by 
when the foundation of the 
house was laying ; but he does 
not say when he first con- 
ferred with the Defendant 
about this exchange. It is 
plain the agreement was not 
concluded on the first propo- 
sal ; for he inquired first about 
the boundaries of the free- 
hold and leasdiold lands. ; and 
when the proposal or conclu- 
sion .was, is quite uncertain ; 
and that: is a circumstance 
3 the 






to my children by my wife Hannah^ whom I marrieci 
before the birth of my tUrd son called James /* iind^ 
^ seeing by the marriage of my said wife Hannah she 


Ae more material, for this 
reason; had it appeared 
tlie agreement for the ex- 
change was made during the 
coarse of the building, or be« 
fore the house was built, or 
near built, then the Plaintiff's 
letting him go on might be 
taken as the conrideration, 
and so part of the perform- 
ance of the agreement as to 
the exchange, because the 
Plaintiff might hwr^ applied 
for an injunction in this 
Coort to stop the buildings 
npon suggesting it to be upon 
Us lands ; but the time of the 
agreement not being fixed, 
it might be after th^ new 
house was entirely built. The 
Sjgreement is likewise uncer- 
tain as to the tenlis of it. 
The woi^ds of the depositfOB 
are, that he apprehended Ite 
Defendant was to convey the 
foe to the FlaiutSF, and the 
temn of ninety-nine jreats, and 
the Plaintiff wai to couTcy 
the fee simple of other grounds 
to the Defendant; this was 
but his apprehension, and 
though it was reasonable, yet 
it is too general to found a 
decree of this Court ; for It is 
uncertain What part of the 
huMb of ei^r was to be ex- 

changed, or at iriiat ridue, 
whether ralue for value, or 
whether any allowance to be 
made; and for a court of 
equity to make dl these in- 
ferences is going further than 
ever this Court 1 believe has 
yet done. It does not ap- 
pear when my Lord Pemhr<Ae 
came into this agreement for 
exchange, or when Gore ac* 
quainted my Lord with it ; 
for Gore does not say whe-^ 
tfaer he had any authority 
from the Earl, or whether 
my Lord ever agreed to it; 
in which case he would not 
be bound by it ; nor was 
there ever any thing done in 
execution of the agreement; 
for the admeasurement was 
never completed. For on 
the Sch of February 17S5 it 
was proposed that six higgs 
should be taken In and al- 
lowed, and then Grani was 
to make the final admeasnre- 
mentB. But then he putthb 
thought into the DefeHdanfs 
head, and so the admeosoro- 
ment was never completed; 
though if this adnHflasurement 
had been completed^ I shouM 
not ^ink it such a peitial 
perfonnance of the i^ee^ 
Meat, IM e%iiUd bi( Iwide 


not a par- 
tial per- 
of an 






becomef entitled to a third interest of the value and 
price of the money arising from the sale of my estates 
above mentioned, my will is, that the said third be ap« 



the foundation of a decree; 
for it was only a step towards 
the perfonnaDce. Here ought 
to have been a parting wiUi 
the interest in some measure, 
otherwise the Court cannot 
decree a performance. No 
stress, therefore, can be laid 
upon this, but to corroborate 
the proof that there was such 
an agreement. 

Thus it stands as to the 
exchange; but I think the 
agreement for building the 
house ought to be carried 
into execution. One objec- 
tion is, that it would be very 
hard to oblige the Defendant 
to build up a new house by 
applying to this Courtr when 
the Plaintiff might have his 
Maaedy at law, and recover 
dwnages lor the breach of 
the agreement^ and that ^ 
ooort of e^^ wiH not do- 
cvee a specific perfimnance 
which will be atteaaded with 
great hardships. But as to 
aendiBg him to law, diat will 
banoremedy at all, this not agreement in writing, 
which is necessary, because 
an agreement to build on 
land, and therefore rehiting 
to land ; nor will the partial 
performance help him there, 
because that is a rule in the 


consideration only of this 
Court. Here is no hardship 
in this case of which the 
Court will take notice. There 
are some cases indeed where 
if the Court was to decree a 
specific performance, it would 
produce the ruin of the De- 
fendant, where a jury would 
not give the Plaintiff I2d. 
damages. In such case a 
court of equity will not de- 
cree a perfonnance. But 
this cannot be called a hard- 
ship, because it will put the 
Defendant to an expense, 
for it is merely through his 
own default, and this Court 
only compels him to perform 
his own agreement which he 
has entered into for valuable 
consideration; and it would 
be su&riag him to take ad- 
vantage of his own wrong, if 
be were not con^Ued* Nor 
will fbe statute of frauds be 
any objection as to this agree- 
ment, because it is plainly in 
part carried into execution 
by the Defendant; and the 
Plaintiff has done every thing 
on his part, by giving the 
old materials which are said 
to be worth 6001^ and the 
Defendantjias, therefore, had 
the bei^t ci his agreement ; 
and the Plaintiff done every 
g 4 thing 







plied in the purchase of stock in the S per cents* as 
above ordered, and the interest and yearly profits accru- 
ing from the said stock to be paid to my said trustees 


thing on his part; and then 
the rule is, that if an agree- 
ment, though not in writing, 
is partly carried into execu- 
tion, this Court will not suffer 
that party to take the benefit 
of the statute; but he is 
bound in conscience and in 
this Court to perform the 
whole : and the intent of the 
statute is answered in this 
case» because the inconveni- 
ence which it intended to 

remedy, as to perjury, is 
taken away where there is a 
performance in part. 

Upon the whole there must 
be a decree for division of 
the lands, and a building of 
the new house, and the Plain- 
tiff must have his costs as 
hitherto. I h^ve not seen a 
clearer case where costs ought 
to be paid, and reserve the 
subsequent costs. MS. 

December 1742. 

An agreement Naihaniel Halhed(£9thet to 

confirmed, the Plaintiff ), being a banker, 
notimpeached . , r u* j i.^ 

without clear na&m^d one of his daughters 

proof of im- to the Defendant Marke, who 
poutiOD. ^g3 ijgQ brg^ 2L banker, and 

' gave with her 5002., but pro- 
mised, as the Defendant said, 
for it did not appear in proof, 
to make her as good a for- 
tune as any of the rest of his 
daughters. One of them being 
afterwards married, received 
1000/. portion. The Defend- 
ant says that Nathaniel HaU 
hed afterwards gave him 500/. 
more ; and on the marriage of 
the third daughter he gave a 
bond to pay with her 1000/. 

after his death, having paid 
1000/. in hand ; so that the 
Defendant Marke said he was 
entitled to 1000/. on the death 
of Nathaniel Halhed. It ^• 
peared thatbetweenthe father 
and son-in-law business had 
been transacted, by verbal 
agreements only, of great 

Serjeant DamM was in- 
debted to Nathaniel Halhed 
in 9000/., and he had two 
copyhold houses to dispose 
of. Nathaniel Halhed had 
agreed (as the Plaintiff al- 
leged) with the lord of the 
manor to purchase no more 




for the behoof of my said wife Hannah during her life; 
and my will is, that the said principal money of a third 
part of the price of the sale of my said estates be divided 



within that manor, under Ihe 
penalty of paying a large 
fine; and therefore Marke 
was to purchase these two 
houses, in his own name, 
from Seijeant Darnell^ in 
trust for Hoiked; but there 
was no proof of such in- 
tention. In 1722 Marke pur- 
chased the two houses from 
Serjeant Darnell for lOOM., 
and paid the money, and pro- 
duced in court a receipt from 
Nathaniel Hoiked to the De- 
fendant, (ReceiTcd from Jokn 
Marke the sum of 10002. on 
account oiJokn Darnell,) and 
was admitted into them im- 
mediately. Natkanid Hoiked 
let one of the houses to Mrs. 
' Se^mell for 302. a year rent, 
the other AforJSr^ lived in ; and 
the Defimdant produced two 
receipts which were mention- 
ed to be for rents, which 
were given by Natkanid Hal^ 
ked to Marke ; and Hoiked 
paid the taxes of both houses ; 
but Marke alleged that Hoi- 
ked agreed verbally to pur- 
chase one of these houses 
from him for 5002., but that 
Marke should continue to live 
in it, paying him the 302. in- 
terest for the 5002., as long as 
he lived, which he said was 

the rent mentioned in the 
receipts. Natkaniel Hoiked 
afterwards laid out 16002. in 
re-building the house where 
Marke lived, which Marke 
accounted for by saying 
10002. of that 16002. were 
the 10002. which Marke was 
entitled to after Natkanid 
Halked's death, as the addi- 
tional portion ; and that they 
agreed that Hoiked might lay 
out that sum on the house, 
and that Marine should allow 
him 402. per annum interest 
for it, until HMed*B death, 
at which time Marke'B right 
to it commenced ; and he said 
that when he perceived Hal^ 
ked exceeded that sum, be 
told him that he did not pro- 
pose to expend more upon 
it, and Hoiked answered that 
he should be charged with 
the 10002. only. 

On the 5th of February 
1728, Hoiked made his will, 
and devised these houses to 
the Defendant Marke, pajrihg 
12002. to his executor, the 
Plaintiff; and it appeared' he 
had said when ' he was re- 
building the house, that he 
was doing it for his son Mr. 
Morkef and he surrendered 
two sBudl parcels of copy* 



atdle deaAiof flij said wifeAimiBg all mj^ildren, by 
her my tsid nib^ kgiliBsta and iBapdmate^ aooocdk^ 
to the above described proportioiis." 


hold land to Mr.Marke,¥rhich 
lay €<mtiguou8 and conve- 
aieiit to his house. Mr. Hal' 
hed died sonie time after- 
wards» and the Piaintift hia 
son and executor^ having a 
meeting with Mr. Marker told 
him if he was a rogue he 
might have cheated him of 
both the houses ; and agreed 
that oa account of Mr. 
Marke'9 surrendering the 
house caUed Tkt House ^ 
ike 6a<«» being one of thenit 
to the Plaiaiifl^ and for other 
valuable 'considerations^ 9» 
Mr. jllinnic . said, sach as 
secvicesr &e^ the Plaintiff 
Aottld rekasa ta^Mr. Mmrke 
the 19M. Aftar this agaee- 
meatf in 1782, a deed 
of release, (a^nch recited, 
a4sreai Mm. Mmte^ ftc, 
waa adanlted iato the . said 
copyhold, &C., ia trust fee 
iJMtiMmielHalked, yet, newer- 
Ibeless^ subject to certain 
agreements and terms be« 
tMreen the said NoAamd 
Halhed and the said Marker 
and also in consideratioa of 
9& the said Mm'Mm right 
oader die eustom of Lornhnt 
and the surrender of the 
house afiMsesaid,) w» eiBe- 
cnted by ifaaElaialiCtodie 

Defendant of all demands, 
&c. The Plaintiff being at 
this time ignorant of the De^ 
fendant's being only a trustee 
for his father, brought his bill 
to set aside this release, and 
to have the 120OL, with the 
interest of it from the. death 
of his fiither, paid to biaa* 

The questions madebythe 
counsel were two : Jmt, whe^ 
thar Marie appeared to be a 
purchaser in his own ufjbit of 
in trust for Nathaniel Halkedf 
and, saaoadly , though he wasp 
whether this release ahoidd be 
set aside? AadC&ttirmen^ 
tioned the. case af Skmdard 
w. Metcaif, to prove that if a 
party does aa act, though ia» 
dueed to it hy fraud, yet if 
he. ■ afterwards ooafinaa that 
act, the subaefMaaconficas* 
atian mwlcesit valid aadgaodt 
He cited also the case af 
€Ua «• MmAh^ wUah waa 
the first case d a t a im iaed by 
LiMd Tafiatr wheve a peraos 
whajust came ftom sea want 
to seek refuge at a'rdatioo's 
house, and was kept without 
dothes to his back mitil he 
madeasolemaaskaseaf his 
ticket for five or six pounds 
a year, and m sue maaths 
afterwards ho oonfinMd' that 

release ; 



Hie Ddeodant aIbo statedf timt 1m widenlood and 
Mieved, and iiad no doidA to be aUe to proves thai 
Colonel Gmrian and his wife had been married at WH^ 



; and Lord Talioi re» 
Afeed to relieve^ though the 
fan act was fttMidulent, be» 
casK ef the subsequent con- 

• Lofd Hardtoickct CbanceU 
lee. This bai is to set aside 
an agreement, and a rdease 
fMmded on that agreement, 
mt die head of fraud ttid hn- 
peaition in obtaining it ; and 
la -tSL eases of tlie kind the 
fmad and imposition must 
b^ ande out to the Court 
by proof; and it does not 
appear there was any aetual 
ftttid or imposition by either 
df'tbe parties to this agrees 
BMnt and release f for they 
«k»e both of fWU age and 
of transacting. 80 
all the fraud and impo- 
sMen le iaspeach this fiMt 
ttrast arise from the dreonK 
stances of the thing kseK 
llienext eeosideratioa, there- 
favi n whether there is any 
Amid apparent on the cir^ 
comatances of it? and both 
iNMid and imposition may be 
aa^well proved fVom the cir- 
enmstances as by dh^ct proof. 
WHit is alleged for the 
Haintiff is, first, that die 
Biefendant set up a tMe in 
bhaseif in these two hoiisssi 

whereas in trOth he was a 
trustee only ; and in the next 
placei that he made his pre^ 
tence of a claim under the 
custom <i€ London a consider^ 
atioa for thb reteoM, when in 
foet the portion he get was 
for move than he eoidd hare 
un d e r the custom. To be 
sure there is a great obscu- 
rity in this easO) and that 
arises naturally ilrom the near 
relation between the parties 
to it. Then taking it with 
such grains of allowaaee as 
amy be expected irom a 
transaction between persons 
so closely related, let us oon-< 

VSfVt, upon the head of 
imposition, it is insisted that 
the estate » to be oensidered 
in trust only, and l^at it is 
proired by ihe ceiease, iMA 
it is said amounts tan declar- 
ation ef the trast; but it ts 
by no means olear to me^ 
that this purchase was erigiap 
ally in trust for Naihauid 
HMetL It appears that 
Seijeant Duties^ was indebted 
le Hulhedf aad that this pur« 
chase money was paid to 
HMed by the Defendant on 
account of SMjeantDenaetf; 
aad n veeeipt was taken by 








mington in America^ in May 1763, which was after the 
birth of the PlaintifT, and before the' birth of the De- 
fendant ; and that the Defendant did not know or believe 


the Defendant for it. Now 
on what account was that re- 
ceipt, unless to discharge so 
much of Serjeant Dameirs 
debt, by the Defendant's pay- 
ing the purchase money to 
Halhed? Thus it stood on 
the original transaction, and 
if it rested on that I should 
not think this a trust. But 
on the whole evidence I am 
of opinion there was some 
trOst between the parties, 
though not on the original 
purdiase ; for Mr. Halhed 
took upon him to build one 
of these houses, and it is 
proved, on both sides, that 
he declared he built it for the 
Defendant ; and he said it 
was on consideration that he 
should pay interest for the 
1000/. during his life. It 
is true the receipts given to 
Marke were for rent ; but I 
lay little weight on that, be- 
ing a very common mistake 
to call interest, &c., rent in 
receipts. I believe Nathaniel 
Halhed intended that both 
the houses should come to 
Marke after his death ; and 
afterwards when he comes to 
make his will he devises them 
to him, charged with the sum 
of 1200/.; and I believe the 

original of Mr. Markers re- 
sentment, and saying if he 
was a rogue he might have 
kept both houses, proceeded 
from his thinking they were 
charged with too miich, and 
that that brought on his 
agreement to release, &c.^ ' 

Thus the case stands, and 
the doubts of it have arisen 
from this mutual confidence 
between the parties; for taking 
it either way there appears to 
be some : either if Marke 
purchased and laid out lOOOf* 
in trust for Halhed^ or if 
Halhed laid out 1600^ on 
the house, there was a con- 
fidence in Marke; but the 
greater probability seems to 
be tliat Marke purchased 
with his own money and for 
himself, and that the trust 
arose after on laying out 
1600/. on the house. • 

Consider it next on the other 
parts of the case. Nathaniel 

Halhed makes his will, and 
after giving legaeies to his 
children, says if they refuse 
to release their right under 
the custom of London^ that 
it should be void ; and after 
his death this release was 
executed. Then conside 

that this claim undet the cus- 


it to be true, though lately asserted by the Plaintiff, 
that a private marriage was celebrated between Colonel 
Gordon and his wife, in America^ sometime before the 
birth of Peter Gordon and the Plaintiff, that is to say, 
so long ago as the year 1755. 



torn was a plain demand 
against the Plaintiff. When I 
say a plain demand, I do 
not mean one whereby any 
benefit may arise, but a right 
to have an account taken; 
and on the whole complexion 
of the case, it looks as if the 
Ddendant's wife had a less 
fortune than the rest of her 
nsters ; and it appears that 
the Plaintiff had a very large 
estate lefl him ; and whether 
the account would turn out 
to the Defendant's advantage 
or no,, the expense of the 
inquiry might be an induce- 
ment to him to execute this 
release, and therefore it is 
not to be laid aside. 

Then this will bring the 
case to the agreement in 
1730, and the release in 1732 ; 
and though it was suggested 
that the agreement was im- 
mediately after the Plaintiff^s 
father's death, and as if it 
was obtained by surprise, 
yet the release was on no 
circumstances of surprize, 
and I think it puts all suppo- 
sition of surprize in the 
first agreement out of the 
case. Suppose the Plaintiff 

had been at first amused with 
what the Defendant said, had 
he not opportunity enough 
to recover his surprise in 
above a year's time? Also 
this very release recited the 
will o£ Nathaniel Halhedy and 
the trust as it is there set 
forth ; and though the words 
are that he was admitted 
tenant, &c., in trust for, &c., 
yet I take that to be no more 
than the words of the scri- 
viner which are usually thrown 
in. It was objected that the 
release goes farther than the 
agreement ; for the agreement 
did not mention a word of 
the Defendant's claim under 
the custom of London ; but 
the agreement has the words 
o.ther valuable considerations, 
which takes off all the re- 
pugnancy, and it seems to 
me it might have been ex- 
tremely reasonable in the 
Plaintiff to have acted thus ; 
and if so, where there is no 
actual proof of imposition 
can the Court set aside these 
two solemn acts ? Dismiss 
the bill with costs. MS. 

Reg. Lib. A. 1742. fol. 



181G. On the part trf* the Plaintiff, Betgamin Waif Efqnlra^ 

V;"" - '•^ ' deposed* that while he lived in Amerka he knew Hanmk 


o. GordoHy then Hatm&h Meredith^ for many years ; that 

OoBBOK. j,^ ^ aboot 1760, bang about to dqiart from America 
for Itahf^ he went to the house of his father for the pui^ 
pose of taking leave of his family and friends, and on 
that occasion he inquired of his brother, who was much 
attfiehed to Hannah Meredith^ where she theli was, and 
wtt^ mfermed by htm that she was then in Philadelphia^ 
atid iMrri^ or about to be married to a Mr. Gvrdon g 
and the deponent was inclined to tbfadt, as fiur » his 
reoolIecdoQ Mssled him, that bis brother then told him 
that ffmmah Meredith was married to a British oflfeev 
aX the name of Gt^rdpn / th^ about eighteen of twentj^ 
years after die deponent left America^ Colodd Qaritol^ 
and Hahnah hb wile were introduced to him in Loniaalf 
where they had lately arrived, as man and wifi^ and 
remained in habits of intimacy with the dq)onent until 
they left London \ that they had several diildren wiA 
them, one of utrbieh^ he believed, was the Plahid£f; afad 
the deponent afld his wife, and a respectable qdaker, 
received Colonel and Hannah Gordon as man and wi^' 
and their children as le^timate children ; and none of 
the children was in any manner treated as Ukgilimate; 
that the dqxinent had never, till lately, heard that any 
of them wef 6 considered as ill^itimate ; and that neither 
himself nor his wife would have had any acquaintance 
with Colonel and Hannah GordoUf if they had not been 
fully persuaded that they were married, and that all 
their children where legitimate ; and that the deponentfs 
wife, a native of Philaddphia^ frequently stated that 
Gokmel Gordon aiid Harmah Gordon (when Hannah 
Meredith) vrere much respected in America, 

Other witnesses testified the reception of Colond and 



Hannah Ocrdon as husband and wife, and of all their 1816. 
children as l^itimate, Goidom 

The reverend Dr. Hogg deposed, that he became pre* 
ceptor to Colonel Qordon*s &mily in 177S or 1774, and 
was confidentially acquainted with Colonel Gordon from 
that time ; that Colonel and Hannah Gordon hefpn to 
ediabit together as husband and wife in 1756 or 1757, 
as the deponent had reason to believe from having beard 
so from the mother of Colonel Gordon^ and others of 
the fiunily ; that he believed them to have been married 
before die birth of their eldest son, and had nosuspidon 
of any of the children being ill^dmate; that Hfimmh 
Gordon was a woman of the strictest vurtoe, deeply im* 
pvessed with religious principles ; that Colonel Chrdon 
on different occasions informed the deponent that be 
kad been privately married to his wife before the hitA of 
Peier Gordon / and that the reason of the privacy of the 
■uurriage was his fear of his brother. Judge Gordon^ on 
whom he then had considerable dependence,^ dnd who 
kad reeommended to him to marry otherwise ; that Co* 
lend Gordon died in England^ immediately after landii^ 
fiom the JVesi Indies^ when the deponent accompanied 
James Gordon to London with a view to assist at the 
iimeral, but it was over before their arrival; and on that 
ooesMon the deponent was present wben James Gordon 
opened the trunks of Colond Gordon, James Gordon 
having the keys in his possession, and no persons bektg 
present but him and the deponent; that the deponent 
proposed that more persons should be called in to witness 
the opening of the trunks, but James Gordon said it was 
unnecessary; that the trunk which contained Colonel 
Gordon's papers appeared to have been previously 
opened, the ropes bemg loosdy tied about it, and with- 
out a seal ; that James Gordon took out^ among other 
papers, and shewed to the deponent, a paper appearing 




1816. to have been a will of Colonel Gordon (but the sub- 
^ J~' "^^ scription was torn off), dated in 1776, and containing a 
V. general destination of his property, first to his eldest 

Gordon. ^^^ Peter Gordon^ and then to his other sons in succes- 
sion, burdened with bequests to his wife Hannah Gordon 
and to their younger children ; that James Gordon then, 
for the first time, mentioned that his brothers Peter and 
Harry were illegitimate, that he had a title to his 
father's West India property, and was determined to 
take possession of it ; that the deponent, then for the 
first time, mentioned to James Gordon the circumstance 
of his father's private marriage, which the deponent told 
him would be a bar to his claim, to which James Gordon 
replied the private marriage was of no consequence as 
.the succession would be regulated by the public declar- 
ation of marriage ; that as the deponent never entered 
into private matters with his pupils, he had never before 
thought it proper to mention the private marriage to 
James Gordon^ nor did he mention it at all to the Plaintifi^ 
conceiving that tlie agreement made in 1790 had ended 
all disputes between them ; tliat the Plaintiff at the time 
of his father's death was in the East Indies^ where he 
had been about twelve -years, and he returned to this 
country only in 1789. 

Miss Gordon^ the sister of the Plaintifi^ and oi James 
Gordon^ deposed, that she had been told by her mother 
that her parents began to live togetlier as husband and 
wife just after the defeat o( G&tiextX Braddocky in 1755, 
or 1756; and that she never entertained any doubt of 
the legitimacy of all her brothers, or heard her father 
mention any private or public marriage between him 
and his wife, or any discussion on the subject; tliat 
on the return of James Gordon to Scotland (where his 
mother and the deponent then resided), about three 
weeks after his father's death, he asked his mother for 




leave to see her papers^ and having obtained access to* 
theniy destroyed several, much against her will, and 
took others away with him ; and the deponent saw him 
bum several: that in 1808, James Gordon threatening 
to take out a warrant against the Plaintiff, the deponent 
asked her mother how she could have had children 
before marriage ? To which her mother answered, that 
she had not had children before marriage, for that she 
had been privately married before she had any, but 
that James Gordon had told her that the private marriage 
was of no avail ; that her mother also on this occasion 
tdd her that she had been privately married by a military, 
ch^lain; that there were present Dr. ^£2a/r, an army 
physician, Mr. Edwards^ her brother-in-law, and Miss 
Peakej and that she was so married in her own house in 
Tldrd Street J in Philadelphia ; that at the time of thb 
communication her mother did not know of any diflfer- 
ence between the Plaintiff and James Gordon^ it having 
been puiposely kept secret from her; tliat her mother told 
her that the marriage was private lest it might displease 
Judge Gordon^ the brother of her husband ; and that 
she had informed James Gordon of her private marriage 
after his return from London^ i£nd that he had desired 
her, and made her promise, not to mention it to any 
one^ as it was not a legal marriage ; that after learning 
the present dispute, and that the marriage was legal, 
she frequently said that had she known it to be legal 
she would have disclosed it long before, and on her 
death-bed, in 1811, she declared the Plaintiff to be 
her eldest lawful son. 





General Adam Gordon^ brother of the Plaintiff and 
James Gordon, deposed, that the first intimation he had 
of any doubt or question on the legitimacy of the Plain- 
tiff, was in 1788, when the deponent was with his regi- 
ment in Grenada, and James Gordon arrived there to 

Vol, III. H h possess 


1816. possess himself of his father's estate, of which the depo- 

""^ - "^' ' nent was in possession, on behalf of the Pidntiff ; that Joffies 

V, Gordon then claimed the estate as lawful heir, insbting 

GoEDON. ^^^ ^.jjg Plaintiff was illegitimate ; but the deponent 

fused to part with the estate until the Plaintiff should 
come from the EaU Indies^ and told James Gordon that 
he knew their father and mother were privately married 
before the public marriage, and that such marriage was 
good in the eyes of God and man ; tliat James Gordon 
made a proposal to the deponent that they should sell 
the property under his mani^ment, and divide the pro- 
ceeds between them, as the PlainUff had the estate in 
Scoilandf and must have made money in the £05^ Indies^ 
but the deponent rejected the proposal with indignation ; 
that James Gordoti shortly after returned to England^ 
and the deponent continued in the management of the 
estate until 1791, when the Plaintiff arrived in Grenada; 
that the deponent then saw die Plaintiff for the first 
time during eighteen years, and neVer informed him of 
the private marriage of their father and mother, under- 
standing that matters had been amicably settled between 
him and James Gordon ; that the Plaintiff's mother told 
the deponent that after the death of Colonel Gordon^ 
James Gordon had taken from her several papers whidi 
she considered of consequence, and she complained 
much of his having done so, and said she was sure he 
meant to make some bad use of them. 

On the part of the Defendant, Harriet Dunlop de- 
posed, that her mother was in some way related to 
G>lonel Gordon^ and that she had frequently heard her 
mother say that Hannah Gordon had a child or children 
by Colonel Gordon before their marriage. 

Another witness deposed, that in the acUon com- 
menced in Scotland by James Gordon against the Plain- 



tifl^ the counsel of the Plaintiff alleged that no marriage 181 6. 
had been celebrated between the father and mother of \^ ' * 
the parties, but that their marriage had been constituted ^ v. 
by their living as man and wife, and being Aabite and 
repute 9o; and it was not till the 26th of March 1809, 
that an allegation was made of a private marriage be- 
tween them in 1 755. 

The following letter from Mrs. Gordon to the Plaintifl^ 
dated the 30th of January 1789, was read in evidence, 
on his behalf: '* My Dear HUrty^ I am happy that 
James and you understand one another by this time; 
you distress me much to think I am not to be made ac- 
quainted with all that regards you and him, as I am the 
only survivor whom you have to blame; and could I 
atone with my life for it; and you are the innocent 
victim* 1 am afraid James has lost sight of all affection, 
or what can make him agreeable to an honourable man. 
God forgive him ; and, my dear Harry, I hope you will 
forgive me for entailing slavery upon you and yours. 
I may say, with Eoe, * Curse me not, my son.' I must 
inj, I erred not from the rules of honour in what I did, 
nor deviated from the path of virtue. Had I no child 
but James, I would publish to the world my life, and I 
am confident I shall be excused ; but he has none, and 
none shall I ask of him ; he has done his worst. May 
GoA forgive him ! Take care of your health, for from 
you my support is to come, and your dear sister. We 
think James has dealt hardly with us. You cannot think 
we are happy when you wish to keep a thing tliat con- 
cerns you from me ; that would distress me. I am well 
acquainted with sorrow, I can submit to all; let me 
only partake with you, and that will be my greatest 
comfort I have not a secret that your sister does not 
know, and would you wish she should keep yours from 
me? That hurts me, my dear Harry i^ 

H h 2 At 







At the hearing of the cause before Sir William Grants 
Master of the Rolls, on the 17th of December 1816, his 
Honor observed, that in the agreement between the 
Plaintiff and Defendant it was stated, that the PlainUflf 
was bom before the actual marriage of his father witli 
his mother, and that he entered into the agreement with 
the belief of his illegitimacy ; but that it appeared, by 
the testimony of General Gordon and Dr. Hoggy that 
the Defendant was acquainted with a private marriage 
of his father and mother before the birth of the Plain- 
tiff, and there was no proof that the Defendant, at the 
time of making the agreement, communicated that cir« 
cumstance to the Plaintiff; the Defendant thus taking 
advantage of his own knowledge of it, and of the Plaintiff*& 
ignorance, {a) - « 

17th December 1816. ^^ His Honor doth order, that 
the parties do proceed to trial at law in his majesQr's 
Court of Common Pleas, at the sittings after next TW * 
nity term, on the following issue, viz. Whether the Plain* 
tiff is the legitimate son of Colonel Harry Gordon in 
the pleadings mentioned ; and the Plaintiff in this court 
is to be the Plaintiff at law, and the Defendant in this 
court is to be Defendant at law, who is forthwith to 
name an attorney, accept a declaration, appear and plead 
to issue ; and it is ordered, that it b^ referred to Mr. 
pampbeUf one, &c., to settle the issue in case the parties 
dififer; ^d his Honor doth reserve the consideration of 
all farther directions, and of the costs of this suit, until 
after the trial of such issu^ ; and either of the parties is 
to be at liberty to apply to this court, as there shall be 
occasion.'* — Reg. Lib. A. 1 8 1 7. fol. 387. . 

The preceding order was, on a rehearing, affirmed by 
the Master of the Rolls; and it was ordered, that the 

(a) ExrelalUme. 

■ * 



issae should be tried at the sittings after the next term. 
11th December 1817.— Reg. Lib. A. 1817. fol. 402. 


An order having been pronounced, that the deposition 
of Mrs. Gordon should be read at the trial (a), on the 
27th February 1818 the issue was tried, and the jury re- 
turned a verdict in fiivor of the PlaintifTs legitimacy. 

An application on behalf of the Defendant was made to 
the Master of the Rolls for a new trial, and refused. 
The following cases were cited ; Standen v. Edwards {b)j 
The Warden and Minor Canons qfSt.PaiiTs v. Morris, (c), 
Pemberton v. Pemberton (rf), Dalrymple v. Dalrymple. {e) 





July I. 8. 

The case coming on for farther directions, was argued 
by Mr. fVingJeldj Mr. Heald, and Ur. Perkins, for the -^^- ^' *<>• ^*- 
Plainti£^ and by Mr. Hart, Mr. RotipeU, and Mr. Rose, 
for the Defendant. The substance of the arguments 
appears in the farther proceedings. 

. Tke Lord Chancellor. 

During my long indisposition I have considered this' 
case with much attention, and I have informed myself 
fully of the view which the late Master of the Rolls took 
when he directed that it should be sent to an issue. 
Unquestionably he looked no further than this, I speak 


Jan. 18. 

(a) Ante,\o\.u 166. 

(b) 1 Kef.jun. 133. 
(cO 9 Ves.lSS. 

(d) 13 Ves. 290. 
(c) Reported by Dr. Dodson, 
and 2 Hogg, 54. 

Hh 3 








fromhis own authority, that ifthe jury upon the issue found 
for the illegitimacy of the PlaintifF, there was an end of 
the case ; but he had not considered what was to be the 
e£Fect of a verdict of legitimacy. 

It appears that Colonel Harry Gordon died m the 
year 1787, seised of an estate in the island of Grenada^ 
and having a claim also upon certain property situated 
in the United States of America^ but which claim had 
not at that time been matured into a title. On his 
death a dispute arose in his family, which of his sons 
was the eldest legitimate son; the present Plaintiff 
Mr. Harry Gordon^ was his second son, legitimate or 
illegitimate ; and he had an elder son of the name of 
Peter. The deceased Colonel Harry Gordon had made 
several wills, but by his last will he left the whole 
of his property, real and personal, subject to certain le- 
gacies, to his son Peter, constituting him generally his 
heir and executor. It is insisted by Mr. James Gordon, 
the present Defendant and third son of Colonel Harry 
Gordon, that his father and mother were not married at 
the time when Peter Gordon was bom, or at the time 
when Harry Gordon, the present Plainti£P, was bom ; 
and that, consequently, James was the eldest Intimate 
son. If such was the case, Peter, who became entitled 
to the property under the will of his father, being on 
that supposition illegitimate, and having died intestate^ 
and without children, neither of his brothers could be 
his heir, but the tide to the estates would become vested 
in the crown. It happened, however, that at the time 
oiPctet^s death, some gentlemen well known in die city, 
of die name of Boddington, had a mortgage upon the 
Grenada estate ; and a question therefore would arise 
whether the legal estate being in the mortgagees, the 
equity of redemption of which Peter Gordon died seized 
would escheat to the crown, or whether the mortgagees 

20 would 



would be entitled to hold the property agaidst the 18 19. 
crown, the family of the Gordons, and all the rest of the q^ '' 
world? It appears that, under the circumstances, the _ •. 
mortgagees very liberally agreed not to take advantage 
of their legal right, in case they had a legal right against 
the family ; but that if the claim of the crown should 
not prevail, they would hold the property for those who 
were entitled to redeem it. 

The first agreement could not have taken place with- 
out great investigation of the state of the family and the 
situation of the proper^. It happens, however, that the 
persons engaged in preparing that agreemait, and who 
must have been instructed on all these teicts, have not 
been examined. 

Jt is represented, that on that occasion, James Gordon^ 
the third son, assuming to be the eldest legitimate son, 
insisted that the marriage between his &ther and mo- 
ther took place after the birth of Harry and Pder^ 
whom, consequently, he stated to be illegitimate; and 
that he was the representative of the &mily. Now, even 
on that statement, James Gordon could have only a claim 
of fiivor upon either the crown or the mortgagees of the 
Grenada estate, to be preferred to an illegitimate son ; 
although as this was a Scottish family, domiciled in 
America, the law of Scotland, by which children bom 
before marriage become legitimate when marriage after- 
wards takes place between their parents, may, per- 
haps, have produced some question. If Peter was the 
heir of the fSunily, the Pluntiff was entitled to the 
Grenada estate, and if he gives up that estate, it must 
be for some valuable consideration; but if it is supposed 
that Peter was illegitimate, the title to the Grenada 
estate, after the death of Petei-, was not in James Gor- 

Hh 4f da^, 


1819. douy but in the crown, or in the mortgagees; it did not 

^ " depend on James to give Harry a tide to that estate 

V. but on the mortgagees or the crown* I am at a loss, 

uoBDON. therefore, to conceive what consideration passed from 

James Gordon at the time of the agreement respecting 

that estate* 


It appears, that about the year 1788, General 
Adam Gordon was in possession of the Grenada estate^ 
as the agent of Peter ; and he states in his evidence^ 
which I have examined with great attention, that 
JameSf in the year 1788, came to the island of Grenada 
previously to the agreement of 1790, and insisted that 
James was entitled to the possession of the estate, and 
desired that General Gordon would give it up to him. 
This request on the part of James^ grounded upon hb 
assertion of the illegidmacy of Peier and Harry^ was 
received with great indignation by General Gordon^ who 
expressed his opinion of that request, and of the indivi- 
dual who made it, in terms which there is no occasion to 
repeat; and General Gordon then told James Gordon^ 
that there had been a private marriage between his 
father and mother previous to the birth of Peter, and, 
consequently, previous to the birth of Harry, and that 
such private marriage was a good marriage, notwith- 
standing there had been a subsequent public marriage ; 
the first marriage ceremony having been privately per- 
formed in order to keep the circumstance a secret from 
Judge Gordon, who had other views for Mr. Harry 
Gordorfs establishment In conclusion. General Gordon 
declared that he held the estate in trust for Harry, and 
that he would not give up the possession. 


I advert particularly to this conversation in the year 
1788, on account of the subsequent agreement with 
respect to the American property, which did not take 



place until the year 1805 f seventeen years after the 1819. 
period at which, as General Gordon states in his depo- Gordon 
siton, he being in possession of the Grenada estate as «• 

agent of Peierj treated the younger brother m the man- 
ner that has been described ; and yet General Gordon 
8tatC3B that he never informed his principal of the trans- 
action, nor ever mentioned this conversation, which 
occurred in the year 1788, until the other agreement 
with respect to the American property had taken place 
in the year 1805. This is certainly a very extraordinary 
circumstance; it amounts almost to an improbability. 
There is, besides, among the papers in this case, a deed 
executed in 1788, to which General Gordon is himself a 
par^, and in which he mortgages thirteen negroes to 
Messrs. Boddingtonj and the equi^ of redemption is 
expressly reserved to the Intimate or illegitimate 
children of Colonel Gordon; an acknowledgment, as it 
seems, by General Gordon^ that there were children 
of both classes, le^timate and illegitimate. 

The present bill is filed in the year 1809, four years 
after the agreement relative to the American property, 
and twenty-one years after the agreement relative to the 
'Grenada estate; and the whole efEsct of the bill, as I col- 
lect, is this : after adverting to the mortgage on the Grenada 
estate^ the bill states in ipsissismis verbis^ the register of 
the birth of Harry Gordon, in which he is called the 
son of Captain Harry Gordon, and of Hannah Gordon^ 
described as his wife; and not containing one word of 
spoliation of papers, it proceeds to state, that the Plain- 
tiff being led to believe, but without saying by whom, 
that he was not the Intimate son of his father, and 
being confirmed in that belief by the assertion of James. 
Gordon, executed the deed of the year 1790 ; and that he 
had no knowledge of the private marriage until after the 
agreement in 1805. 



1819. In the course of this case the publication of the de* 

\^ ' ■- positions de bene esse of the mother, Mrs. Gordon, who 
V. was still alive, was at first refused, and that queftkm 

(7011DOK. coming again before tlie Master of the Rolls, his honor 
permitted the publication; and on appeal I approved 
that decision ; and I then expressed my opinion that if 
the Plaintiff chose to have the examination read, ia 
other words, if he chose to have his mother examined 
as a witness, it would be extremely difficult both on the 
trial of the issue, and at the hearing of the cause^ to 
receive the evidence of witnesses who spoke to the de- 
clarations made by the mother : for although it is dear 
that on questions of pedigree, if a parent is dead, evi- 
dence may be given of his declarations on the subject of 
the pedigree, and witnesses may be called to prove these 
declarations, yet it would be difficult to find any case 
in which witnesses were permitted to prove such declare 
ations when the parent in question was livings and was 
personally examined. I therefore wish to know how &r 
those witnesses were heard upon the trial of the issue^ 
as to the declaration of a woman who was herself a wit- 

In the view of the case which I now take, much of 
that evidence which went before the jury must neces* 
sarily be considered upon the hearing for further direo- 
tions ; and it must be considered with strict attention to 
the law of the Court, which says, that a man shall not 
be at liberty to prove upon a trial any thing he may 
think fit; that he is at liberty to prove only that which 
is put in issue. Now here is a great deal said about 
spoliadon of papers, of which not a word is to be found 
in the bill or in the answer. 

Supposing the question cleared firom the difficulty about 
evidence, I have Sir William Giants authority to say^ 



that bis view of the case in directiog the issue, went no 
further than this, that if the illegitimacy was found, there 
was an end of the matter ; but he bad not considered 
what was to happen, in the other event, if the legitimacy 
was found. The case will now come to be discussed on 
two points; first, supposing all imposition out of the 
question, whether it is a case in which, upon the principles 
that guide the conduct of a court of equity, relief can 
be granted ? and, secondly, whether, if there are any 
passages in the several depositions imputing imposition, 
there are in the bill any allegations, or in the answer 
any admissions, of imposition as a ground for relief? 




Of the cases which have been quoted, Stapilton v. 
StapiU<m{a)j and Cann v. Cann{b)y there is no neces- 
sity for me to say more, than that they fully establish a 

principle of which I can have no doubt, that where Family aaree- 
* , • • 1 ments without 

family agreements have been fairly entered into, without fraud estab- 

oonceahnent or imposition upon either side, with no ^^^^j^"^^ 

suppression of what is true, or suggestion of what is mistidLe. 

fidse^ then, although the parties may have greatly mis* 

imderstood their situation, and mistaken their rights, a 

court of equity will not disturb the quiet, which is the 

consequence of that agreem^oit; but when the transaction 

\bb been unfiiir, and founded upon fidsehood and nus- 

representation, a court of equity would have a very 

great di£Sculty in permitting such a contract to bind the. 


In the present case it is for the Court to consider, 
first, whether the pleadings have sufficiently put in issue, 
the fiict of imposition? and, secondly, if they have^ 
in what the imposition consists? I suppose the most 
prominent mode of putting the fact of imposition is this: 

(a) 1 Alk. 2. 

(Jf) 1 p. W. 723. 



1819. that James Qordon knew that there had been a marriage 
GoRDov dejacto ; not that he knew the marriage was a legal mar- 
V, riage, but that a ceremony of marriage, whether valid or 

not, had been performed previous to the public marriage, 
and previous to the birth of Harry : that James Gordon 
was aware of this fact, and knew that Harry was not aware 
of it, and kept from him the knowledge of thatiacU It was 
his duty to communicate the &ct of the private marriage ; 
and if Harry knowing it, had decided for himself that the 
ceremony was not valid, and treating it as not a marriage 
dejure, had chosen to enter into the contract, there would 
have been no ground for the suggestion of imposition, 
unless on evidence of spoliation of papers, of which I 
find no allegation. 

When this case came before me at Westminster the 
point of spoliation of papers was adverted to; and it was 
said, that the evidence produced upon the issue afforded 
strong grounds for an inference contrary to the verdict' 
on the question of the legitimacy. I lay all this en- 
tirely out of the question ; but still I cannot think that 
the case has been argued to the bottom. I am dearljr 
of opinion, that Mr. James Gordon has no right, at the 
present time, to argue from circumstances that Harry 
Gordon is illegitimate ; on that subject he is concluded 
by the verdict : but he has certainly a right to say, of 
any particular circumstances, that they, at the time of 
the contract, induced him to believe that Harry was not. 
Intimate ; and the question would then be, whether this 
is not a case of mistake into ivhich all parties might ho- 
nestly fall ? Before the Court declares a contract like this 
void, it ought to be fully satisfied that the contract was 
entered into under circumstances of wil^l concealment. 


I have thus explained my view of the case ; and be- 


fore I pronounce a final decision I should wish to have 1819. 
it argued again by one counsel on each side, \j ' ■" 



Mr. Heald^ for the Plaintiff, requested that the cause peb. S7. 
might be heard on an early day. 

The Lord Chancellor. 

When this case came before me upon the verdict, it 
was opened on the principle that the Plaintiff having 
established his legitimacy, was entided to the relief 
prayed ; but the order directing the issue has not pro- 
vided for the event of a verdict of legitimacy, but pro- 
ceeded solely on the principle that an opposite verdict 
would have been fatil to the Plaintiff's claim. I ob- 
serve with surprise that, on the trial, not only the 
deposition of the mother was read, but witnesses were 
admitted to prove her declarations. Such a proceeding On a ^ettion 
is certainly irregular; when she was a witness in the ^j^JJ^J^^n- 
cause no evidence of her declaration should have been not be re- 
received from other witnesses. It is singular that such prove the de- 

a practice should have occurred, after the elaborate clarationsof 

B rd&tivc 
discussions on the law of evidence applicable to de- whose depo- 

clarations of pedigree, in the case of the Berkeley peer- **''*^° " '®®*^ 


The cause was again argued. June t9. 

Mr. HeaU for the Plaintiff. 

In all the cases of family agreement which have been 
the subject of judicial decision except one^ the contract- 
ing parties had among them a good title ; if the claim of 

(a) 4 Cam/)&. 401. 








one was bad, by necessary consequence the claim of the 
other was good. Here, if Peter and Harry Gordon were 
illegitimate, the estate was the property of the mort- 
gagees or of the crown, not of James Gordon. The agree* 
ment, therefore, which the Plaintiff now impeaches was 
without consideration. Harry Gordon sacrificed a part 
of his rights, in consideration of the title which James 
represented himself to have and to give ; but it is clear 
that he had no title. He cannot be permitted to allege, 
that the agreement was founded on the probability that 
he might become the grantee of the crown. 

The Lord Chancellor. 

Before the act of parliament introduced by Lord 
Bcdesdale (a), the crown could make no grants of estates 
escheated beyond leases for short terms of years or 
during lives (b) ; that act has enabled the crown to be 
more liberal. It may, however, be found, on examin- 
ation, that the statute of Anne is not applicable to lands 
out of the kingdom, {c) 

Argument for the Plaintiff resumed. 

The conclusion is, that the agreement was voluntary, 
and this case is within the principle of those decisions in 
which agreements founded in misrepresentation, whether 
wilful or innocent, have been rescinded. 

The Lord Chancellor. 

If the Defendant, James Gordon^ when he entered 
into the agreement knew that there had been a private 

(a) 59 & 40 G. 5. c. SS. f. IS. &C. within the kingdom of Eng- 

{b) \ Afin,iL\,c,T. Z^G.S, landf dominion of WaUi, or 

c. 75. town of Bermck'VpoH'Tweed^ or 

(c) The words are, ** manors, any of them.'* 




l^;al marriage between his &ther and mother, it would 
require little time to dispose of this case ;| if he knew 
that there had been a ceremony of marriage, without 
knowing whether it amounted to a legal marriage, and 
omitted to communicate that fact to his brother, and 
enable him to decide for himself the effect of the ce- 
remony in law, the consequence to James Gordon might 
be serious ; but does the bill contain any charge even 
that James Gordon knew the fact of marriage ? If not, 
a question will arise, whether evidence to that effect can 
be admitted at all ; and if admitted, whether James Gor- 
don is to be concluded by evidence which he has had no 
opportunity of answering. 




My opinion is, that if James Gordon^ prior to tlie 
agreement, knew that there had been a private ceremony 
of marriage, and conscientiously believing that it was 
not a legal marriage, omitted to communicate the fact to 
his brother, the Plaintiff would be entided to relief; on 
the principle that, though &mily agreements are to be 
supported, where there is no fraud or mistake on either 
side^ or none to which the other party is accessary, yet 
where there is mistake, though innocent, and the other 
party is accessary to it, this court will interpose* 

Argument for the Plaintiff resumed. 

The bill contains no distinct allegation that the De- 
fendant was apprised of the ceremony, but the statement 
in the answer, that the Defendant had been informed 
that neither Peter nor Hairy were legitimate, is sufl5- 
dent to introduce the evidence. But the objection is 
too late; the evidence was received on the original 
hearing, and cannot now be rejected, when the cause 
is heard for farther directions. 

Family agree- 
ments not 
supported if 
founded in 
the mistake of 
either partr, 
to which the 
opposite party 
is accessary. 








Mr. Hart for tbe Defendant. 

The fact that the deed was voluntary, affords no rea- 
son for rescinding it. The evidence manifests the ex- 
istence of mutual doubts of the Plaintiff's legitimacy ; 
and a compromise of rights originating in such doubts* 
is the very transaction which courts of equity support,' 
in order to preserve the peace of families. On the sup- 
posed right of the crown it may be sufficient to refer to 
Burgess v. Wheate. [a) 

In the course of the argument the following cases 
were cited : Stockley v. Siockley (i), Stapilton v. Siapil^ 
ton (c), Cann v. Cann {d), Pullen v. Ready {e\ Cory v. 
Cory (y), Lansdawn v. Lansdcmm {g)j Bingham v. Bing^^ 
ham (A), Dunnage v. White. (/) 

The Lord Chancellor. 

I have never known a case in which it was more the 
duty of the Judge to make a covenant with himself not 
to suffer his feelings to influence his judgment 

It is obvious that the Plaintiff, if not l^itimate^ has 
no title to relief; the trial of the issue has decided, and 
I think properly, that the Plaintiff is legitimate ; un- 
fortunately it seems to have been taken for granted, when 
the issue was directed, that after a verdict of legitimacy 
no dispute could arise touching the relief to be decreed; 
but, in fact, the question sdll remains, whether, admit- 
ting the Plaintiff to be Intimate, the agreement was 
concluded under circumstances which entitle him to 

(a) 1 Black. 125. 1 Ed€n^ 177. 
ib) 1 Kef. 4- Bea. 23. 
(c) 1 Aik. 2. 
Id) 1 P. W. 725. 
[e) 2 Atk. 587. 

(/) 1 Veg. 19. 
Ig) Mot, 564. 
(A) 1 Ves. 1 2G. 
(f) Ante, vol. h 157. 




relief? I cannot avoid thinking that it would have been 
more prudent first to consider the effect of a verdict of 
Intimacy, lest the expense and time of the trial should 
be wasted. The case, however, has taken another 
course, and I am now to decide whether, after this ver- 
dict, and on these pleadings and this evidence, the 
Plaintiff is entitled to relief* 


Withholding my judgment on the effect of the evi- 
dence which has been read for the first time on this 
hearing for farther directions — I mean the mortgage 
deed, reserving the equity of redemption to Colonel- 
Gordon and his children, legitimate and illegitimate, and 
some letters, I will proceed to observe on the rest of the 
evidence, and to point out in some degree what, as I 
conceive, must be the principles of decision. 

The bill is filed by Harry Gordon^ who must now be 
taken to be the eldest living Intimate son of Colonel 
Gordon^ stating that his fiither died in 1787, seised of 
estates in Grenada^ and claiming estates in America^ hav- 
ing by his will devised his real estates to his son Peter 
and hii heirs for ever. Peter was the elder brother, legiti- 
nsate or illegitimate, t)f Harry Gordon ; and Harry being 
fiwDd l^itimate, Peter must be taken to be legitimate 


alao; but while it could be asserted that Harry was 
illegitimate, it followed of necessity that Peter was ille- 
gitimate; and on the Defendant's shewing, therefore^ 
this must be taken to be a case in which the father of 
aeveral children, some legitimate and some illegitimate, 
has given an estate in fee to one of the latter class, who 
died intestate ; and in which, by reason of his death, 
estates in the island of Grenada^ sutgect to a mortgage 
in fee, are so circumstanced, if the law there is, as I 
believe it to be, the same as the law in- England^ that 
ndtber the Plaintiff nor the Defendant, James Gordon^ 
Vol. III. I i have 






have any title to them ; because if tlie doctrine of escheat 
applied to those estates, the title was in the crown ; if 
on the principles adopted in Burgess v. Whcate^ the 
mortgagee might refuse to be redeemed by any one, 
neither the plaintiff nor James Gordon could disturb his 
enjoyment ; the right being on one supposition in the 
crown, and on the other in the mortgagee. The crown 
was dealt with as is usual in these cases ; that is, con- 
siderable care was taken that its oi&cers should know 
nothing on the subject ; the mortgagees appear to have 
acted in a manner highly creditable to them, and having 
a probable title themselves, consented to dispose of the 
estate according to the agreement entered into by the 
tnembers of the family. 

A famzly 
concluded in 
honest error 
is binding. 

Not if either 
parties has 
been misled 
by the con- 
cealment of 
material in* 

It has been contended, on tlie behalf of tlie plaintifiv 
that this case is distinguishable from Cann v. Canriy and 
pdier authorities of that class ; and in general certainly 
the circumstances are such as have been represented ; 
namely, a dispute about the title to an estate, which 
clearly belongs to one of the disputants, unless it belongs 
to the other : as where between two brothers, supposed 
to be both legitimate, or one legitimate and the other 
illegitin^ate, a compromise is effected, on the supposition 
of the illegitimacy of one who was found afterwards to 
be legitimate, the Court holding this to be a family 
agreemept, would not disturb it, provided that there 
was honest dealing on both sides, and each withheld 
the communication of no circumstance proper for the 
consideration of the other ; though one had been dealing 
for his birdi-right, under an erroneous notion that he 
>vas illegitimate, he would be bound« But in every 
case it has been said, and it would be monstrous to hoU 
otherwise, that if what one knows has been oonoealed 
from the other, who has been misled by tliat concdd-* 
ment, the Court would not sanction the agreement 

14 It 


It is said that this case differs from those to which I 1819. 

have alluded in this respect, that here, on the hypothesis q^ 

of illegitimacy, which was the foundation of the agree- v, 

ment, neither party was entitled. I doubt much whether o*»o»- 

that distinction is material, and I think the fair way of 

puttinfi: the case on that point is this : both parties had A family 


agreed to set out of question the title of the crown, niay bind the 

the adverse title of the morti^ajorees was waived in favour Parties though 

^ ^ neither of 

of both, and both consented that, for the purpose of the them had a 
arrangement, the estate should be considered as belong- the property 
ing to them ; and I am of opinion, therefore, that if the ia question. 
dealing is honest, this case is within the principle of 
those decisions. But a difficulty arises here, partly from 
the manner in which the case is necessarily and properly 
pleaded, partly from the nature of the case as collected 
from what appears on the pleadings, contrasted with 
what in every way of estimating the due weight of the 
observations made, might have appeared there, if the 
parties thought proper. 

The Plaintiff represents that in 1788, he returned 
from the East Indies^ in consequence of his father's 
death ; that on his arrival here he was taught to believe 
that his father had been only once legally married, sub- 
sequently to the Plaintiff's birth, and must be understood 
to state that' he was not apprized of the fact of that 
private marriage, which is now to be considered as valid. 
The case on this point has more of complexity, because 
it appears that the parties looked to the law of Scotland, 
and may have confounded the law arising from Scottish 
and English domicit. In this state of ignorance, the 
Plaintiff concludes an agreement with James Gordon^ in 
1790) and afterwards in 1805. The bill also contains 
an all^ation, in singular terms, that the defendant now 
knows the private marriage; not that he knew it at the 
time <rf the contract 

I i 2 The 


1819. The answer of James Gordon may be read in two 

\, ^ ways; he denies his belief that tliere was a private mar* 

t>. riage, and if he honestly believed, when he swore to his 

answer, supposing him to have known the private cere- 
mony, that that ceremony did not constitute a marriage^ 
his answer is strictly true; but then it is no answer to 
the case on which the plaintiff insists ; and if it is a &ir 
observation on the one hand, that the plaintiff might 
have charged much more in his bill, on the other hand 
it is obvious that James Gordon might have made an 
answer, which, if it truly stated all the circumstances of 
the case as he knew them, might have put an end to the 

£vi(lence not Of the evidence, I 1^ out of die question the cir- 
admitted ^ , . , , . r 

of facts not al- cumstances to which more witnesses than one speak, 1 

l^d in the mean the conduct oi James Gordon with regard to family 
pleadings. . . . 

papers, on the news of his father's death arriving m 

Scotland : the pleadings contain no allegation on the 
subject, and I must dierefore know notliing of it. But sup- 
posing James Gordoti to know, that though tliere had been 
a ceremony of marriage, the marriage was not valid, if 
he knew the fact of die ceremony and took on himself to 
determine its validity, and dealt with his elder legitimate 
brother without disclosing that fact, knowing that he 
was not oUierwise apprised of it, he was wrong; when he 
entered into a contract with his elder brother as the heir 
at law of their father, while if that ceremony constituted 
a valid marriage he could not be heir, it was his duty, 
as an honest man, to state tlie fact of tliat ceremony, and 
his opinion that it was not valid. If the plaintiff so in- 
formed had tliought proper to enter for himself into the 
consideration whether tliat ceremony did or not consti- 
tute a legal marriage, and had then dealt with James 
Gordon^ this case would have been brought precisely 
within those decisions, in which tb^ Court has refused 




to disturb family agreements. But here occurs a painful 
part of the case. Dr. Hogg positively swears, under 
circumstances indeed difficult to be accounted for, but 
which can never justify me in saying that he is perjured, 
that he communicated to James Gordon the fact which 
be had learned from his father, the private ceremony of 
marriage. The defendant requires me to believe tliat 
tl)is clerg3'man, the tutor of tlie family, has solemnly 
deposed to a falseliood, so infamous as this statement,, 
if false, must be. But the deposition is supported by the 
evidence of General Adam Gordon. It is difficult, indeed 
to understand, why neidier Dr. Hogg nor General Gor- 
don communicated these declarations to the plaintiff : but 
that difficulty will not authorize me in discrediting testi- 
mony, than which, if false, more profligate was neven 





It roust be considered, therefore, as establislied, that 
before the agreement of 1790, James Gordo?i knew that 
there was a rumour at least of a private marriage ; and 
I have no hesitation in saying, that whether there had 
been a private marriage or not, yet if James Gordon 
withheld from the plaintiflf'the information which he had: 
received from Dr. Hogg and General Gordon^ this bar- 
gain if speedily questioned, could not have stood in this- ments require 

Court. In contracts of this sort, full and complete comn»»nica. 

tion of all ma- 
communication of all material circumstances is what the terial circum« 

Court must insist on. stances. 

The fact of a private marriage is furdier established by 
the evidence of Mrs. Gordon and her daughter ; and the 
difficulty of understanding the delay of Dr. Hogg and 
General Gordon^ in communicating to the plaintiff cir- 
cumstances so material, is not sufficient to discredit 
their testimony. The reason which they assign is, that 
the brotlicrs having settled their differences by tlie agree-* 

I i 3 ment 






mentof 1790, the witnesses were anxious not to disturb 
the harmony of the family. It is remarkable also that 
General Gordon is party to tlie deed of mortgage, re- 
serving the equity of redemption to the children Intimate 
or illegitimate of Colonel Gordon; he was aware, there* 
fore, that some difficulty attended the question of legiti- 
macy ; the mortgagees reasonably required the deed to 
he so framed, that the question sliould not embarrass 
them. But much more is necessary before this evidence 
can be rejected. 

The pleadings on the part of the plaintiff seem not so 
ample as they might have been, with reference to so 
singular a case ; but it must be considered, whether tbe 
allegations of the defence have not opened a case within 
the statement of the bill, however general ; and it must 
be recollected, that it was competent to the Defendant^ 
by a cross bill to obtain from the Plaintiff an answer 
supplying all the defects of the record. 

The case will finally turn on thb point : at the time 
of the agreement, did James Gordon know that there 
had been a private ceremony of marriage, whether he 
thought it valid or not ? If he did not know that there 
had been a private ceremony, had such a statement been 
made to him ? Although he might not believe that state* 
ment, still he was bound to communicate it to his brother* 
If it can be shown that the Plaintiff had the same 
knowledge, the case will take another turn ; but regard 
being had to the nature of the answer, and the fact 
that no cross bill has been filed, the probability is, that 
James Gordon knew, or had reason to believe, that there 
had been a private marriage, and that the Plaintiff 
possessed no such knowledge ; and then the parties did 
not meet on equal terms. In that view, taking the case^ 
as I wish to take it,, as a case of mere nofi-disclosure» 



the Court, even at this late hour, will give relief. Bat 
if the Plaintiff had a knowledge of the fact, and exercised 
his own judgment on the legal effect of it, tliis case will 
be one of that class in wliich the Court, seeing that 
there has been full disclosure on all sides, and that the 
parties have thought proper by agreement and com- 
promise to settle what each shall hereafter claim, sup- 
ports the contract, though proceeding on mistake. If 
in this case, therefore, the Court refuses relief, the 
refusal will be grounded on the fact, that all parties 
acted in knowledge ; if it grants relief, its intei'position 
will suppose proof, that some material circumstance 
known to one party was not communicated to the 




The following cases were cited on the admissibility of 
depositions beyond the allegations in the bill. Ward v. 
TAe Duke of Buckingham. (/?) Tennant v. Stubbing, (i) 
Clarke v. Twion, (c) 

July 27. 

The Lord Chancellor. 

The agreements which the bill in this case seeks to 
rescind were entered into, it must be admitted, after con- 
siderable deliberation on the subject. The chief diffi- 
culties of the case arise, unless I mistake its nature, 
from the infirmity of the pleadings on each side. 

At the date of the agreement of 1790, recollecting 
that if Harry Gordon was illegitimate, Peter Gordon^ as 
the elder brother, was necessarily illegitimate also, and 


(a) 3 Bro, p. C. ed, Tovtl, 581. (h) 5 Antir, 640. 644. (c) 1 1 Vcs. 240. 

I i 4 that 


1819. that by reason of his illegitimacy and intestsicy, Janies 

*^ ' ' " Gordon could have no title to the estates, it is not easy, 

V. from any allegation in the bill or answer, to understand 

uosfiON. ^^ views of the parties ; but the arrangement seems to 

be explained by the conduct of the mortgagees, wha 

kindly agreed to consider themselves as trustees for the 

family ; and it is evident that the parties dealt with a 

knowledge that the crown might have a claim in the 

property, for the contract provides for the event of the 

crown establishing its claim. 

This was originally c^ned at the bar as a case in 
which the Plaintiff having, by the event of the issu^ 
established his legitimacy, notliing remained but to de* 
cree the relief which the bill prays; but in my opinion, 
although it is impossible that the Plaintiff should suc- 
ceed if illegitimate, his mere legitimacy will not entitle 
him to success, and for this reason : I apprehend that 
if on the death of an individual seised in fee of an estate^ 
a dispute arises who is his heir, and there is room for 
rational doubt as to that fact, and the parties deal with 
each other openly and fairly, investigating the subject 
for themselves, and each communicating to the other all 
that he knows, and all the information which be has 
received on tlie question, and at length adopt a reso- 
lution to distribute the property, under the notion that 
the eldest claimant is illegitimate, although it afterwards 
Family ar- appears that he is legitimate, the Court will not dis- 
not disturbed *"^^ * femily arrangement of that kind, merely because 

although the fact is eventually found different from the supposition 

founded in . . 

mistake. <>^ which it was founded. I put the case of full and 

free disclosure, and where the transaction proceeds on a 

compromise, with reference to which no want of good 

faith on either side can be sugge&ted. 



On the quei^tion of legitimacy the verdict is de- 1819. 
cisive, and I am bound to consider the Plaintiff as the oordok 
legitimate son of Colonel Gordon ; and the question now v. 

isy whether attending to the allegata 4' probata in this 
case, these agreements are to be impeached, and to 
what extent, and on what terms ? 

' I lay out of the case the question of consideration ; 
and I think myself justified by the authority of Cann v. 
Cann and other decisions, in holding, that if a dispute 
arises relative to the legitimacy of children, and tlie 
members of the family, to maintain their character in 
the world, arrange their rights among themselves, if the 
matter is fully before them, their agreement will not be 
disturbed, because it is founded on a supposition, which 
imputes the character of Intimacy to the illegitimate, or 
illegitimacy to the legitimate ; but then there must not Family ar- 
only be good feith and honest intention, but full dis- oot supported 
dosure ; and without full disclosure honest intention is J'j^i^^J,^ 
not sufficient. 

My view of this case, and I have not arrived at it 
without reluctance, is, that James Gordon knew that 
there had been some ceremony, which is called a private 
marriage. I cannot doubt that fact without imputing 
to several witnesses the most in&mous perjury. I find 
no evidence that, at the time when the Pliuntiff entered 
into the agreement of 1 790, he was apprized of that 
ceremony ; and I say that if James Gordon^ knowing 
that &ct, of which the Plaintiff was ignorant, dealt with 
him witliout disclosing it, whether the omission of dis^ 
closure originated in design, or in honest opinion of the 
invalidity of the ceremony, and of a want of obligation 
on his part to make the communication, the agreement 
cannot be sanctioned by tlic Court. 





1819. If Janus Gordon had informed the f laintiff of the 

^^-^ fact of the private ceremony, and afforded him the op- 

GORDOSr . \, , . ,. ■ , . .1 11 

9. portunity of decidmg, by his own judgment, whether 

GoBooN. ^^^ ceremony constituted a marriage, and the Plaintiff 
had consented to impute to himself the character of 
illegitimacy, when by the verdict it appears that the 
character of legitimacy belonged to him, I think, omitting 
at present the question of consideration, that the Court 
could not have interfered with the agreement. 

It is not uninstructive to observe tlie different effixt 
of the same evidence on different minds ; the letters 
which have been read in proof that the Plaintiff acted 
with great deliberation, and knew the fact of the private 
ceremony, appear to me strong evidence that he never 
had that knowledge. 

Many views of this case it is di£Scult to reacfa^ 
considering the penury of allegation in the bill ; butf 
after an attentive consideration of the bill, tlie answer, 
and the evidence, it appears to me that these agree- 
ments must be rescinded; on what terms is another 
question. If the deeds are declared void, the other 
parts of the arrangement must also be set aside. 

I think that the Defendant is entided to have a de- 
claration inserted in the decree of the ground on which 
I proceed in holding the deeds void. Such declarations 
on the record are always useful, enabling the parties 
to deal with them as they think right. 

1821. The decree, stating that the cause npw stood for 

judgment, and reciting the pleadings, and tliat the 
parties proceeded to a trial of the issue o» the 
27th February 1818, when the jury found that tlie 




Plaintiff was and is the legitimate son of Colonel Hany 1 821. 
Gordon^ proceeds thus : — " His Lordship doth declare q^^don 
that it is established by the verdict found in this matter ^ t>. 
that the Plaintiff is the legitimate son of his father; and 
His I#ordship doth declare that Peter Gordon^ his elder 
brother, must also have been legitimate, and, conse- 
quently, that the Defendant James Gordon was not the 
heir at law of Harry Gordon the elder, nor of the said 
Peter Gordon; and farther, that it appears that if Peter 
Gordon was not legitimate, yet if having survived 
Harry Gordon the elder, he became entitled in fise, in 
law or equity, to the estates in question, by virtue of his 
&ther's will, mentioned, in the agreement of 179(^ to 
bear date the 5th day of August 1787, the Defendant 
James Gordon could not be entided at his £ither*s deaths 
or at the death of Peter Gordon f to the estates oi Harry 
Gordon the father, as his heir at law, or have any well* 
founded claims to the said estates, as such heir at law; 
that nevertheless the agreement of 1790 purports to be 
made between the Plaintiff JZarry Gordon and the De- 
fendant James Gordon, claiming to be the heir at law of 
the testator iifar73/ Gordon the elder, and as such making 
certain claims upon the estates therein mentioned, over 
and besides the provisions made for him by the will and 
codicil of ] 776, 1 782, and 1 787> recited in the said agree- 
ment of 1790, and which will and codicil are thereby by 
the said Plaintiff and Defeodant admitted to have been 
made by the said Harry Gordon the elder ; that it further 
appears, from the recitals of the said agreement of 1790, 
that if Peter Gordon had been illegitijDate^ and Harry 
Gordon the younger also illegitimate, and if the estates 
were vested in Peter Gordon by virtue of the said will of 
1787, the said James Gordon could not, as heir at law of 
his father, or otherwise, by his contract, or by any other 
his act, authorise or give title to Hairy the younger to 
enter upon the said estates, or empower him effectually 



1821. to require the mortgagees mentioned in the said agree- 
Gordon ni^^ to re-convey to him the said Harry Gordon the 
V' yomiger, upon payment of what was due to them, or vest 

in the said Harry Gordon the younger any interest ia 
the said estates, save the said James Gordon^s interest as 
a legatee ; that it also appears that the other - agree- 
ment of the 4tli day of Febniary 1 805, as well as the 
said agreement of 1790, was made between the parties 
thereto in consequence of the supposed illegitimacy of 
the Plaintiff negatived by the before-mentioned verdict ; 
and that the Defendant, if the PlaintiiF was illegitimate^ 
had no tide to the .lands in America^ nor any right, for 
his own behoof, to hinder the Plaintiff from obtaining 
possession thereof^ subject to the charges thereon, in 
case such lands, under the grant thereof, were vested in 
his father, and passed by his father's will to Peter Gor^ 
don ; and His Lordship doth declare, that if the Pldntiff 
could not be relieved against the said agreements on the 
mere ground of mistake respecting his legitimacy,' on 
the ground that the said agreements were entered into 
in consequence of mistake and misapprehension re- 
specting such legitimacy, yet that the Plaintiff is entitled 
to |)e relieved against the same, as having been also 
entered into under a misapprehension and misunder- 
standing that the said James Gordon the Defendant liad 
such right and interest in the said estate, as would enable 
him effectually to give and assure to the Plaintiff those 
benefits and interests which, for the considerations men- 
tioned in the said agreements, are contracted or agreed to 
be given and assured to him by the said James Gordon : 
and inasmuch also as it is established, by the evidence in 
the cause, that, prior to the entering into the said agree- 
ment, the Defendant James Gordon had been informed 
and knew, that a ceremony of marriage had previously 
taken place between his father and mother before the 
birth of the Plaintifi^ (being the marriage which, by tii^ 



aforesaid verdict) has been established as a valid mar« 1821. 
riage,) and the said agreement having been entered into gobdom 
with such previous information on his pnrt, and without v* 

such information being imparted to the Plaintiff, who 
might, if the said Jatnes Gordon had communicated to 
him th;!t information, have been able by due inquiry to 
prove his legitimacy, as he has since proved the same, 
afler he had discovered that such ceremony had pre- 
viously taken place ; His Lordship doth therefore de- 
clare the agreements in the pleadings mentioned, bearing 
date the 3 1st day of March 1790, and the 4th day of 
Febrtiati/f 1805, to be void, and doth order and direct . 
that the same be delivered up to be cancelled ; and it is 
further ordered that it be referred to Mr. Dawdeswelly to 
whom this cause stands referred, to take an account of 
all sums of money paid by t\ie Plaintiff to the said De- 
fendant James Gordon^ or to any other person or persons 
by his order or for his use, in respect of the annuity 
mentioned in the agreement bearing date the 31st day 
6i March 1790, and of the sums of 4,600/. and interest, 
and 1040/. in the said agreement also mentioned; and 
it is ordered that the said Master do compute interest on 
the respective sums paid by the Plaintiff to the Defendant 
James Gordon^ from the respective times of paying the 
same; and for the better taking the said account, &c. ; 
and it is ordered, that what the said Master shall find to 
be the amount of such sums and interest be paid into 
the Bank with the privity of the Accountant-General of 
this court, on the credit of this cause, subject to the 
further order of this court ; and His Lordship doth re- 
serve the consideration of costs, &c. ; and this is to be 
without prejudice to any claims which the Defendant 
James Gordon may have or can establish against the 
Plaintiff, in respect of the estate or effects oi Harry Gor^ 
don the elder deceased, or Peter Gordon deceased, or 
either of them, in any suit or proceedings which he 



1821. may be advised to institute against him, and other proper 

*- ' and necessary parties." — llec.Lib. A. 1820. fol. 1984. 
Gordon ^ ^ ° 




Jidif 2, J. 16. 

Under a be- TAMES CRAUFURD^ Esq. being possessed of con- 
tm foHn- siderable personal property in this country, where he 
vestment in resided, and in Hdland^ and having made a will dated 
life annuities, Slst of December 1806, relating to his Dutch property, 
to be paid to which he directed, after payment of his debts, to be re- 
life, the an- mitted to England^ afterwards on the 3lsl oi January 

UdSTrfi]!'" ^^^^» "^^® another will, by which he confirmed the 
lately to the former, and directed that the balance should be paid to 
ed * ^din ' ^^ executors in England, and should go into the mass of 
consec^uence his effects here. By this will, after bequeathing certain 
of C. to attend l^acies and annuities to his wife, he gave to the defeii*> 

at the public jants John Craufurd and Coutts Trotter, the sum of SOOOt 
office, no u- . •^ ' . i . 

vestment hav* in trust, to be by them employed in purchasing ia their 

dSkl^hb Itfe^ names, upon the life of his brother George Craufurd, an 
and an annuity annuity in the government life annuities of the value of 
tator paid to ^0002., to be by them received and paid to him in equal 
C, and which shares every six months during his life, upon condi- 
directed to be tion of his renouncing in writing within eight days after 
S°^**^^" receiving the notification of the testator's death, all 
tors should be demands and claims whatsoever upon the testator's 
5S mv«t^^ estate^ or upon any property of which he might die 
ment, having possessed, failing which, the present disposition in his 

ufieii contiiiu— 

ed beyond that favour to be null and void; and after bequeathing some 

Ume until C's other l^mcies and annuities, he fiirther left, out of 

decease, toe - , 

payments of his remaining property, to John Craufurd and Coutts 

^ f^^^Lr. trotter, the sum of 2000/., in trust, to be by them em- 
are to be con- ' * </ 

ndered at payments on accoimt of the sum to be invested, and the representativies of 

C. are entitled to receive that ftum with interest, after deduction of those payments. 



ployed in purchasing in their names, and on the life of 1819. 
bis brother George Craufurd, an annuity of the govern- 
ment life annuities of the value of the said 2000/., 
to be received and paid by them to George Craujurd^ 
in equal shares every six months ; John Craufurd and 
Cotitts Trotter being thereby authorized, if they thought 
it necessary, and for the advantage of George Craufurd^ 
to dispose of the said 2000/. for his benefit, and 
with his consent, in any other manner which might 
appear to them most eligible ; the whole upon condition 
only of his renouncing in writing, within eight days after 
receiving the notification of the testator's death, all de- 
mands and claims whatever on his estate, or upon any 
prc^erty of which he might die possessed, failing 
which, this disposition, as well as the preceding one 
pf SOOO/., to be null and void; it being also under- 
stood that this sum of 2000/. should not be called for in 
any way before the expiration of one year after his 
death. The testator appointed John Craufurd and 
Cautts Trotter^ and Robert Elliott and Maty Craufurd^ 
the testator's wife, executors and executrix of his wilL 
John Craufurd alone proved the will ; the other execu- 
tors and the executirix having renounced probate, and 
CauUs Trotter also having renounced the trusts. 

During his life the testator had allowed bis brother, 
George Craufurd^ who resided in HoUandj an annuity of 
3200 guilders, being in value about SOO/. sterling. 
On the 9th of Webrnarjf 1816, a few days before his 
death, he wrote the following letter to Messrs. terrier 
and Co., his agents at Rotterdam. ^^J have hereby to re- 
quest and authorize you to continue to pay to my brother, 
Mr. George Cratffurdj for my account, the sum of S200 
guilders per annum^ in equal quarterly payments, in the 
^vent of my deftth, till such time as my executors shall 
have arranged my affidrs, should they require some time 


Palme K 


1819. for that purpose; and this letter will be your authority 

with them, which will be confirmed to them by me; 

V, and you will observe that your Mr. Feirier will have 

funds of mine, out of which the said payments to my 

brother will be found." 

After the testator's death a paper was discovered of his 
handwriting, without date, in the following words : 

** In order to provide for my brother's subsistence 
upon my death, before my executors may be enabled to 
make the necessary arrangements, I shall authorize 
Messrs. Ferrier and Co. to continue to advance to him 
the same sum of 3200 guilders per annumy which he now 
receives, and that so long after my death till my exe- 
cutors shall declare themselves ready to carry into 
effect the clause contained in my will respecting my 
brother ; and I shall further authorize Messrs. Ferrier 
and Co. to pay themselves for such advances out of the 
money due to me by Mr. Alexander Ferrier ; provided 
always, that before making any payments afler my death, 
my brother comply with the stipulation concerning him 
contained in my will, which compliance or noncompliance 
will be communicated to Mr. Ferrier. By this manner 
of preventing my brother from sufiering any inconve- 
nience by my death, my executors will be the better en- 
abled to make arrangements with the other legatees ; and 
they are reminded that there are three years^ namely, 
1813, 1814 and 1815, of profits on the mmes still to 
account for." Neither this paper nor the letter to Messrs. 
Ferrier were proved as testamentary. 

In February 1816, the testator died ; and George Crau^ 
Jurd^ (within the time prescribed by the will,) duly re- 
nounced all demands upon the testator's estate. The 
executor John CraufurduX different times during the first 



year after the testator's death, paid to George Craufw^dj 1819. 
1820/. on account of the legacy of 2000/., and was pre- palmer 
pared to invest the legacy of 3000/. , according to the direc- t>. 

tions of the will ; but George Craujvrd being prevented by 
ill health and other obstacles from coming to England, to 
present himself at the government annuity office, where his 
personal appearance was necessary previous to the pur- 
chase of an annuity, the 3000/. were in consequence 
never invested. In the meantime Messrs. Ferrier and 
Co. continued to pay to George Craufurd the annuity of 
S200 guilders, till his death in February 1819, the pay- 
ments amounting in the whole to about 1050/. 

The suit was instituted by the executors of George 
Craufurd to obtain payment of the 3000/., and of die 
remainder of the 2000/. 

Mr. Heald and Mr. fVinthrop for the Plaintiffs. 

On the performance of the condition annexed to the 
gift of these sums, they became separated from the 
rest of the testator's estate. The bequest is absolute, 
and the will only directs in what manner the sums were 
to be applied for the benefit of the legatee ; but if the 
annuity had been purchased, he might have sold it, or he 
might have had the sums paid to him instead of their 
being invested; Bayley v. Bishop (a), Barnes v. Honxiey. (i) 
The right to the sums vested in him from the time of 
the testator's death. There is nothing in the letter to 
the Ferriers, or in the paper of instructions to the exe- 
cutors, that can restore this property to the testator's 
estate. The provision made by them was only to con- 
tinue till the purchase of the annuity, and was not to 
defeat it. Geoige Craufurd might, notwithstanding these 
documents, at anytime bave called for the investment of 

(a) 9 Vti. C. (*) 3 rr#. 305. 

Vol.111. Kk thq 






the 3000/. But, strictly speaking, they are of a testa* 
mentary nature, and not having been proved as such, 
cannot be read in evidence. 

Mr. Hart and Mr. West for the Defendants. 

The letter and paper of instructions the Plaintiff have 
made part of their bill, and they cannot now object to 
their being used in evidence; if it were necessary the 
Court would allow the cause to stand over to afford time 
for proving them. They are evidence of the testator^s 
intention and serve to explain the will. 

An intention is avowed both in them and in the will, 
that this sum (by contradistinction to the 2000/., which 
might be laid out in any way that tlie trustee and legatee 
thought proper) should not be enjoyed except in the 
shape of an annuity as a personal provision; and the 
Court cannot apply it to a purpose different from what 
the testator intended. The trustees were ready with the 
sum, and the noninvestment of it arose merely from the 
neglect of the intended annuitant ; can his representa- 
tives be allow^ to derive benefit from his default? George 
Crmifi^rd actually received during his life considerable 
sums more than he would have had if the annuity hod 
been purchased. Thus he was in a better situation than 
the testator intended, and his estate cannot now be entitled 
to the capital sum in Edition. 

The Master of the Rolls. 

With respect to the legacy of 2000/., provision had 
l)een made by the testator, that it should be invested in 
the purchase of an annuity, or paid to his brother George 
Crait/iird, at his election. Part of it, at his desire was 
applied in a manner settled between him and the exe- 


cutors. There remains due a sum of about lSOl>, and 1819. 
to that his representatives are unquestionably entided. Vauwl 

The legacy of 3000/. is differently circumstanced. As C*^^'^^^ 
to that the executors had no option ; they were expressly 
directed to invest that sum in the purchase of a govern- 
ment life annuity^ which they were to pay half yearly 
to George Crau/urcL It is admitted in the pleadings^ 
that the noninvestment of that sum m the mode pre- 
scribed was occasioned by the inability of George Crau* 
Jurdi who was then residing in Hcilandy to come to 
England and present himself in person at the proper 
office. Instead of this, the intermediate payments di- 
rected by the testator in the letter to the FerrierSf such 
as he had been accustomed to make during his life, were 
contbued after his death, to the amount in all of about 
1050/. George Craufurd died without the SOOOL having 
been invested in the purchase of any annui^. The bill 
is filed by his representatives, insisting that they are en- 
titled to that sum, destined for George Craufurdy afler 
Reduction of the sums received. 

First, to consider the question independently of these 
documents, the letter to the Ferriers^ and the instruc- 
tions. The cases of Bayley v. Bishop (a), Yates v. 
Compion {b) J and Barnes Y,Eowley{c)f havis established, 
that where money is bequeathed to be invested in the 
purchase of an annuity for the life of the legatee, and 
the legatee dies before it is laid out, or even, as in Bat/' 
ley V. Bishop^ before the fund is available, as during the 
life of the person afler whose death the investment is 
to be made, yet still it is a vested legacy from the death 
of the testator; and that the legatee for whose benefit it 

{a) 9 Vet. 6. {h) 9 P. W. 308. (c) 5 Vet. 3U5. 

Kk 2 was 








was intended, having survived the testator, may elect 
either to take the sum, or have it laid out in an annuity. 
It would follow that in the present case the represent- 
atives of George Cratifurd are intitled to this sum which 
was destined for him. 

The only novelty in the case arises from these two 
documents, the letter and the instructions in the life of 
the testator, and the conduct of the parties since his 
decease, under this temporary provision made by the 
testator ; and the question is, whether it can be con- 
sidered that the legacy which had once vested on the 
death of the testator, was given up, by the accept" 
ance of a substitute, or whether the inability of the le- 
gatee to attend in this country for the purpose of the 
investment, shall take this case out of the general prin- 
ciple ? The letter and^the instructions were intended to 
have only a temporary eiFect, to make a provision, till 
the executors should be ready to invest; it is admitted 
that they were ready, and that the investment was de- 
layed by the circumstances of the legatee ; but although 
for his benefit and for his convenience, the other pro- 
vision was continued, this cannot operate to divest the 
legacy. If he had been living could he not have now 
claimed to have the annuity purchased ? The only effect, 
therefore, of these transactions is to reduce the amount 
of the legacy. 

The question is, in what manner the reduction shall 
take place ? The legatee cannot receive both the inter- 
mediate annuity of 200/. a-year, and the legacy also. 

I think that it must be considered ia'the same manner 


as if he had elected to take the 3000/. in money. As 
he had a vested interest in this sum from the time of the 
testator's death, the Plaintiffs are entitled to it, together 




with the interest from the expiration of a year after that 
event, and they must deduct the amount of the payment 
made to George Craufurd in his life time. 





EDWARD ALDER, Plaintiff. isis. 


^T^HE bill stated an agreement between the Plaintiff A deceased 

and his late partner R, YeOj whose executors were fng contracted 

the defendants Fouracre and Mackay^ for obtaining from jjjj^*^ ^^^ 

lease of premises to be employed in the partnership trade, the Court refused to re- 
strain the landlord from granting a lease to his representatives, but restrained the 
representatives from disposing of the lease when granted, except for partnership 
purposes, and with the assent of the surviving partner. 


In Chancery, 25th July^ 1791. 













Motion by representatives 
of a deceased partner, to re- 
strain the surviving partner 
from bringing ejectment, upon 
his title as surviving lessee of 
the partnership premises. 

The case was, a lease to two 
persons partners in a farm ; 
one partner dying, the other 
agreed to the division of stock 
with the representatives of his 
deceased partner, but insisted 

on holding the lease by sur- 

The Chancellor thought 
by the joint tenancy the lease 
would survive ; yet if turned 
by agreement into a partner- 
ship, it would not survive. 
The law is clear. The only 
question is of fact, whether 
there be such an agreement ? 
Also if the purchase was by 
two with the money of both, 

(fl) 1 Kern. 217. 
Kk 3 







the Earl of Mount Edgecttmbe a lease of certain pre- 
mises, to be employed in their partnership trade, and an 
agreement between Yeo and the agent of the Earl for 


there would be no survivor- 

The Solicitor General cited, 
Bunb. 34*2. to sliew it was 
otherwise in case of a lease^ 
though purchased by two. 

The Lord Chancellor* I 
must think the lease was ac- 
cessary to the trade in which 
the parties were embarked. 
Injunction granted. —- From 
Lord Colchester*^ MSS. 

Injunction ordered against 
farther proceedings at law 
against the Plaintiffs in the 
action brought against them 
now depending, and also from 
commencing any other action 
at law against the Plaintiff 
touching the matter in ques* 
tion in this cause, until hear- 
ing or farther order. Reg* 
Lib. A. 1791, fol. 475. 


In Chancery, 19th May, 1791. 

Injunction to 
restrain sur- 
viving partners 
from using the 
name of a do- 
ceased partner 
in the firm of 
the trade, re- 

Mitford moved on the part 
of the Plaintiff, John Webster, 
an executor o^ James Webster, 
for an injunction to restrain 
the Defendants David Web' 
ster and James Wedderburn, 
the two other executors of 
James Webster, from using 
the name of the testator in 
the trade carried on by them 
in partnership. 

The ground upon which this 
motion was made, was that 
the Defendants used the name 
of the testator in the trade, for 
the purpose of subjecting his 
estate to the consequence of 

the trade, under a pretended 
agreement made by the testa- 
tor in his life time. 

Lord Chancellor, It is im* 
possible that using the testa- 
tor's name in the trade, can 
subject his name to the trade 

Mitford. If it has not that 
effect it must be a fraud upon 
the public. 

LordChancellor. The fraud 
upon the public is no ground 
for the Plaintiff's coming into 
this Court. — Motion refused. 
From Mr. RomUley^ notes. 
Lord Colchester'% MSS. 



granting a lease: that the Plaintiff and Yeo entered 1818. 
into the premises with the consent of the Earl's agent, 
and expended large sums in building thereon : that the 
Plaintiff had lately discovered that Yeo had made the 
agreement in his own name alone : that since the death 
of YeOj tlie Plaintiff, as surviving partner, had expended 
1200/. on the premises ; and that Fouracre and Mackay 
had lately applied to the Earl for a lease of the premises 
in their own names, and intended to dispose thereof as 
the separate estate of Yeo. 

The bill prayed that the Earl of Mount Edgecumbc 
might be restrained from granting, and Fouracre and 
MacJcay from applying for or accepting, any lease of 
the premises. 

Mr. Joseph Martin^ oii certificate of bill filed and 
affidavit, now moved for an injunction. 

The Lord Chancellor. 

What equity is there for compelling the Earl of 
Mount Edgecumbe to take another lessee ? The contract 
was made with the deceased alone, and unless there is 
evidence that the Earl knew that it was made on behalf 
of himself and his partner, that partner has no equity 
against the Earl. Possession might be given to boti), 
but the contract was with one alone ; unless a contract 
with both parties is established. Lord Mount Edgeaimbe 
cannot be compelled to grant a lease to the survivor. 

By altering the frame of the bill, tlie executors may 
be restrained from disposing of the lease, if the Earl 
grants one, except for partnership puq)oses; but no 
injunction can be obtained sgainst the Earl. 

K k * The 





The bill was afterwards amended by the iusertion of 
a prayer, that Fouracre and Mackay might be restrained 
from assigning or parting with or any way affecting the 
lease of the said ground, or their interest therein, when 
such lease shall be granted to them, pursuant to the 
agreement, except for the benefit of the co-partnership, 
and for co-partnership purposes, with the consent of 
the Plaintiff; and an injunction was granted. 

^' Whereupon, &c.. His Lordship doth order that an 
injunction be awarded to restrain the Defendants, Fouracre 
and Mackay^ from assigning, making over, or parting 
with, or in any manner affecting, the lease of the ground 
in the Plaintiff's bill mentioned, or their interest therein, 
when the lease shall be granted to them pursuant to the 
agreement in the pleadings mentioned, except for the 
benefit of the partnership, and for co-partnership 
purposes, and with the Plaintiff's assent," until answer 
or farther order. Rep. Lib. A. 1817, fol. 1732. 


June 14. 17. 

FIELD, Plaintiffs ; 


The DEAN and CHAPTER of the Cathedral Church 
of St. PAUL, in London^ Defendants, (a) 

nnHE bill stated an indenture of lease, dated the 24th 
of Jtdy^ 1813, between the Defendants of the one 

Chapter not 
being entitled 
to fell timber 

on the Dean- part, and the Plaintiff Catherine Lorwfield of the other 
ery lands, ex- 

cept for the purpose of repairs, a lease granted hy them of certain ** woods, ^Tes, 
hedge-rows, and springs," was construed not to include the right of felling timber, 
and a bill by the lessee for an account of timber felled during the lease by the les* 
Aors, was dismissed with costs. 




partj by which as well in consideration that Catherine 
LKmfieUt^ had surrendered to the Defendants a former 
lease, dated the 5th of August 1806, from them to her 




The Dean and 
Chapter of 

(a) Bishop of WINCHESTER v. WOLGAR. (b) 

Die Jovisy 25 Juniiy Termino Trinitatisy Anno Regni. Car. 
Reg. quintoy 1629. Rich. Episcapus Wintony Quer. 
William Wolgar. A.AnvUley Def. 









For as much as this Court 
was this present day informed 
by Mr. Brotoney being of the 
FlaintifF's counsel, that the 
Plaintiff being seized in his 
demesne as of fee in the right 
of bis church, ofand in the ma- 
nor of Havanty in the county 
of Soitthamptony whereof the 
Defendant claimeth an estate, 
without impeachmentof waste, 
under a demise made unto 
Sir Richard Cottony Knight, 
in the time of King Edtoard 
the Sixthy without any con- 
sideration appearing in the 
lease, except the rent reserv- 
ed, by reason whereof the 
Defendant being assignee of 
the said tenement doth com- 
mit great waste, and spoil, 
and threateneth to cut down 
the woods and timber trees 
growing upon the said manor, 
wherewith it is replenished, 
from the doing whereof the 

several Lessors of the said 
manor have been restrained 
by an order made by his 
Majesty's Privy Council, re- 
gard being had of the com- 
mon weal, and the commodi- 
ousness of the said timber for 
the maintenance of the ship- 
ping ; in consideration where- 
of, and for that the said 
waste, if the Lord Bishop Waiteb^a 
himself should commit any bishop the 
excessive waste or spoil of J^^WtiL 
woods, the same ought to be 
prohibited and restrained by 
the law ; it is thereupon or- 
dered, that the Defendant be 
enjoined from felling any 
more trees until he can give 
good satisfaction to the Court 
for doing thereof; and an in- 
junction to that purpose is 
awarded against him and his 
workmen inhabiting the same. 
Reg. Lib. A. 1628. fol. 1140. 

(6) AntCy Vol.]i. p. 171. a. 

3d Nw. 






The Dean and 

Chapter of 

St. Paul. 

of the woods, groves, hedge-rows, and springs there- 
inafter demised, to the intent that the said lease might be 
cancelled, and also in consideration of the yearly rent, 


3d November, 5 Car. 1629. 

Whereas by an order of 
the 25th of June last, for the 
reasons therein set forth, it 
was ordered that the De- 
fendant should be injoined 
from felling any more trees, 
mitil he could give good 
satisfaction to tliis Court for 
the doing thereof, and an in- 
junction was to that purpose 
awarded against him and his 
workmen, inhibiting the same; 
Upon opening of the matter 
this present day unto this 
Court by Mr. Serjeant Bram- 
stony being of the Defendant's 
Counsel, and upon reading 
of the said order, as also of 
a letter from the Lords of 
the Council, directed to the 
High Sheriff of the County 
of Southampton; it was al- 
leged that the lease by and 
under which the Defendant 
claimeth was mad^ in the 
time of King Edward the 
Sixth, and confirmed by the 
Dean and Chapter, and is 
dispunishable of waste, and 
the Defendant claimeth as a 
purchaser for great and valu- 
able consideration ; it is there- 
fore thought fit and so or- 
dered by this Court, that if 

Mr. Browney being of counsel 
with the Plaintiff, and who 
moved the former order, hav- 
ing notice thereof shall pot 
on Saturday next shew to 
this Court good cause to the 
contrary, then his Lordship 
doth dissolve the said in- 
junction, without further mo- 
tion. Reg. Lib, A. 1629. fol. 

8th Dec. 5 Car. 1629. Upon 
opening of the matter 
this present day unto the 
Riglit Honourable the Lord 
Keeper, by Mr. Serjeant 
Daveiiporty being of the 
Plaintiff's counsel, and upon 
the shewing forth of an or- 
der of the 3d of November 
last, by which the Plaintiff 
was to shew cause on Satur- 
day then next following, or 
else the injunction should be 
dissolved, and of other orders 
whereby further time was 
given to the Plaintiff to shew 
his cause ; it was moved in 
regard as was alleged, the 
said Defendant hath already 
felled one hundred and fifly 
of the timber trees, and the 
matter is very difficult upon 
point of law, whether the 
Defendant upon the clause 




covenants, and agreements thereinafter referred and con- 
tained on the tenant's or lessee's part, and for other good 
and valuable causes and considerations, the Defendants 



demised The Dean and 
aemisea (Chapter of 

St. Pahl. 

in the lease, without im- 
peachment of waste may cut 
down trees and make spoil 
at his pleasure in this case ; 
it is ordered that the two 
Lord Chief Justices shall be 
attended, who are intreated 
together with Mr. Justice 
Huiton, and Mr. Justice 
JVhiielocke, to take the mat- 
ter into their consideration, 
and certify their opinion what 
they think fit to be done in 
such case, and then his 
Lordship will give further 
order ; and in the mean time 
the aforesaid injunction is to 
continue and stand in force. 
Reg. Lib. A. 1629. fol.215. 
7th June, 16S0. Upon open- 
tag of the matter this present 
day unto this Court by Mr. 
Brampston being of the De- 
fendant's counsel, and upon 
reading of a former order of 
the 7th of December last, and 
showing forth of an affidavit 
by which it appears that the 
houses belonging to the manor 
in question are most of them 
down, and that part which is 
standing is much decayed 
and not habitable, and unless 
a speedy course be taken for 
the reparations they will all 

fall down, and therefore i