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^>?

REPORTS OF CASES

ARGUED AND DETERMINED

IN THE

fflGH COURT OF CHANCERY,

&c. &c.

REPORTS OF CASES

ARGUED AND DETERMINED

■

IN THE
AND OF

SOME SPECIAL CASES ADJUDGED

IN THE

Court of W^int!(fi Um^ :

COLLECTED BY

WELLLAJHf PEERE WILLIAMS,

LATE OF gray's INN, ESQ.

PUBLISHED, WITH NOTES, REFERENCES, AND TABLES OF THE NAMES
OF THE CASES, AND OF THE PRINCIPAL MATTERS,

BY HIS soir,
WILLIAM PEERE WILUAMS,

OF THB INNBR TEHPLB, ESQ.

EDITED (tN 1787 AND 1793^ WITH ADDITIONAL REFERENCES TO THE
PROCEEDINGS IN THE COURT ^ AND TO LATER CASES,

By SAMUEL COMPTON COX,

OF Lincoln's inn, esq.

NOW ONE OF THE MASTERS OF THE COURT OF CHANCERY.

THE SIXTH EDITION,

WITH REFERENCES TO THB MODERN CASES,

By JOHN BOSCAWEN MONRO, WILLIAM LOFTUS LOWNDES,

A.ND

JAMES RANDALL,

OF LINCOLN'S INN, BSQRS. BARRISTEKS AT LAW.

IN THREE VOLUMES.
VOL. III.

LONDON:
JOSEPH BUTTERWORTH AND SON, 43, FLEET STREET.

1826.

UBftARY QF THE

££um suYf^m. -m.. umEssifT
JUL 15 1901

London :

Priutcd bjr J. & T. Clarke,
St. John's Sqaare.

THE RIGHT HONOURABLE

ARTHUR ONSXiOW, Esq.

SFEAISBR OF THE HOUSE OF COMMONS,
Akd one ov His MvB^i^rT^s M^bt HoNQuptApLS PuiyT Cquvoil.

I 'HAVE had very little doubt with myself^ to whom I should
address the following Reports. The long fnendship, with which
you honoured the Author of them, and the esteem shewn by
you on all occasions for the Profession, might justly direct
them to you as their Patron. But there remains a still stronger
reason to be offered in excuse for the trouble now given you :
which is, that from a comprehensive knowledge of the whole
ei^boit of our Laws, yon seem to have selected such parts of them
for the object of your particular attention, as are more immedi-*
ately founded on the etamal nd'^ of equity and justice.

In conformity to these rules, you will here find, Sir, the
greatest lawyers our country has produced, laying aside all those
distinctions and refiiiement$, that would, in their opinion,

( vi )

render the science a matter of (a) memory, rather than of
reason andjudgment, and employing the talents they possessed^
in relieving men made unhappy by unforeseen accidents^ and in
detecting frauds so contrived, as to be out of the reach of the
ordinary courts of judicature.

I cannot forbear observing, when I consider to whom I am
applying myself, that all the eminent persons whose decisions
are here contained, were of the utmost credit and influence in
that respectable assembly wherehi you have so remarkably
long, and with such dignity, presided ; that it was there they
laid the foundations of their future greatness, and recommended
themselves to the esteem of all good men, by happily {b)
tempering what were before thought incompatible, the preroga-
tive of the crown, and the liberties of the subject.

It is the renuirk of one of the greatest statesmen and patriots
of all antiquity, that (e) none of a man's illustrious actions,
when in office and authority, are so appropriated to him, as the
laws which he has promoted for the benefit of the community.
As a proof of this, he instances in many of his own countrymen,
who, though highly distinguished on other accounts, would, he

tljinks, have chosen that their general character should be

^^-^— ^~-~"^~~— ~^— ^^— —•^—^•'^-^~— ■ ' 11

(a) See the Lord Cowper*i Argumentt when h« gave judgment in the
cause of J^Teweomen versus Barkham% S Vem. 789., and the Lord TkXbefi
in that of Cook Tersut Arnham^ po$L 886.

(b) Res oliro dissociabtles, Prtncipatum ac Libertatem miscuerunt —
TacU, in vHd JuV JgrieoUR de Imperaiorfhuo JiTerva ei Trqjano,

(c)I£cquid est, quod tam propria did possit actum ejus, qui togatus in
republicft cum potestate iroperioq; versatussit, quamlez? Quare acta
Gracchi ; leges Sctupronie proferentur. Quiere Sylle ; Comelie. Quid ?
Cnei Pompeii tertius consulatus in quibus actis constitit Nempe in Icj^ibus.
Caesare ipso si quereres, quidnam egisset in urbe, et in togft ? leges multas
respouderet se et prsclaras tulisse.— Phi^ppfc* prim\

( Yii )

determined from their merits of this kind. What national
acknowledgments then can sufficiently reward the services of
him who has so carefully watched over our Constitution, and
been constantly engaged in prompting laws for its support and
improvement !

I am.

With the greatest respect, Sir,

Your most obedient humble servant,

WM. PEERE WILLIAMS.

THE

PREFACE

FROM the favourable reception given to the (wo
volumes of Reports that I published some time since^ I
have been encouraged to let this third appear ; the
originals of all which the Author left written in his
own hand; not without a design^ as from several
circumstances may be conjectured^ of their being
made public.

It may be proper to apprise the reader^ that in the
following sheets he will meet with several cases^
prior in point of time, to some that are printed in
the former volumes ; the reason of which is, that the
Author having, through some accident or other,
omitted to give the final determinations of these
cases, it was not judged advisable to insert them,
imperfect as they then were: but the Register's
books having been since searched, all defects of that
kind will be found here supplied.

Sir Edward Coke, in the Preface to his First
Institute, takes notice of its having been a peculiar
felicity attending the judicious writer on whose book
he comments, that he was cotemporary with severtd
famous and expert sages, from whom that work
received great furtherance. And possibly, when
we call to mind those who were the ornaments of the

X PREFACE.

courts^ both of law and equity^ during the time of
our Author's attendance^ (with most of whom he was
known to have had some intimacy;) the Reports
now under consideration may not be thought desti-
tute of the like advantages.

In this volume^ the greatest part of which consists
of cases in equity^ I have taken the liberty to insert
two^ that were adjudged in the courts of common
law^ both of them on subjects of importance^ but
especially the latter ; in which^ besides the argument
offered at the bar^ is contaihed an authentic report of
a resolution delivered by that excellent person^ who
at present presides in the highest court of judicature^
and whose abilities and integrity have rendered us
insensible of the loss of his immediate predecessor.

I must not conclude without adding a word or two
in respect to the cases and observations placed briefly,
by way of note, at the bottom of the page, and which,
as they make that part of the work wherein I have
been chiefly concerned, may most stand in need of
an apology. All I shall say in their behalf is, that
they are, except a very few, which will be. too easily
distinguished to their disadvantage, of the same au-
thority with the text, (being taken from the author's
manuscript) and seem to illustrate the passages to
which they refer. What regard they may deserve,
is entirely submitted to others.

W. P. W.

October 1, 1749.

TABLE

OP THB

NAMES OF THE CASES

TO THB

THIRD VOLUME,

DISPOSED < AS IN THE TWO FORMER.

Wherein alio are distinguislicd by Asterisks [*] those Cases that are for the most Fart taken
fnm the Reporter's Mannscript, and inserted briefly* by way of Note, at the Bottoni of
the Fage.

Page
Adams v. Pierce 1 1

* Addenbroke and Cross 222

* Allen V. Pendleburj 142
Annesley v. Ashharst 282
Anonymous. ♦ 90, ♦ 1 1 1, ♦ 294, 314,

♦ 327, ♦ 379, ♦ 389

283
384
244
282
258
146
145
128

Amham and Cook
AshtoD V. Ashton

* Ashton Vm Carzon
Ashhnrst and Annesley
Atkinson v. Hutchinson

* Attorney-General v. Leigh
Attomey-General v. Rigby
^ Atwood V* Lamprey

* Bacon (Lord) his ordinances
cited, as to the dases in which a
ne exeat regnum ought to be
granted.

Baine and Willing

* Baldwyn v. Bannister

* Bank of England and Morrice

* Bannister and Baldwyn
Banks and Mills
Barley et al' (md Cruse
Barlow v, Bateman

* Barrington (Lord) v. Searl
Bateman and Barlow

* Bellr 9. Commissary Hyde's wife

Page

313

113

252

402

252

397

w A TABLE OF THE NAMES OF THE CASES IN VOLrilL

Page

* Belsh V. Harvey 288
Bendish and Wrotealey 235

* Berkeley and Weston 244

* Berney v. Pitt 293
Bettison v. Farringdon 363
Bewick v Whitfield 267

* Biddle v. Biddle 318, 319
Blue V. Marshall et Ux* 381

* Booth V. Booth 36
Bowyer and Newsome 37

* Bridgwater (Duke oQ v. Sir Fran-

cis Edwards 257

* Bristol (Countess of) v. Hunger- .
ford) where see also an observa-
tion from the Register's book on
that case, as reported by Mr.
Vernon 194

Brown et Ux' v. Elton 202

Brown and Piddock 288

Brunker, Ex parte 812

Buck V. Fawcett 242

Bnrron and Low 262

* Burton v. Lloyd 285

* Cardy and Lloyd 313

* Carlton v» Mortagh 31 5
Carlisle (Earl oQ and Lechmere 211
Carpenter and S pettigue 36 1
Cafteret (Lord) v. Pascall 197
Carter and Evans and Sharpe 375

* Casebum v. English 234
Chambury and Holder 256

* Chappel and Wasteneys 265
Chaplin v. Chaplin 229, 245, 365
Charlton o. Low 328
Chester v. Chester 56

* Chion, Ex parte f 1 87
Clavering v. Westley 402
Clerk and Cowper 155
Cleveland (Dux de) and Osmond 129
Cole V. Gibbons et al' 290
C#le and Gibbs 255
Cook V. Amham 283
Cookson and Duke of Somerset 390

* (hoopers' Company and Wildey 12'8
.* Cosby and Pakeman. 314

* Cotton and Frankland and Lane 394
Cowper v.Qerk 155
Cowper V. Scott et al' 119
Gox (Lady) her Case 339
Cox (Sir Charles) his Cveditore'

case 341

Page

Craddock and Lake 158

^ Crocker and Thompson 315

Croft r. Pyke 180

^ Cross V. Addenbroke 222

Cruse et al* v. Barley and Banson 20

^ Curwyn v» Milner 292

* Curzon and Ashtbn 244

Da Costa v. Da Costa 140

* Darston v. The Earl of Orford 401
Davers (Sir Jermyn) o. Dewes 40
Davis V. Gibbs 26

* Day V. Savage. 17

* De GoUs r. Ward 311
Desbouverie and Pusey 315

* Duncomb v. Hansley 333
Dunn V, Green 9

* D'Evreux and Winter 189

East-India Company and London

Assurance 326

Eeet-India Company and Wych 309

East V. Thombnry 126

* Edwards (Sir Francis) and The

Duke of Bridgwater 257

Edwards and Vick 372

Egerton and Head 280

* Ekins and Green 306
Elton and Brown 202

* English and Casebum 234
Evelyn (Sir John) and Stone-
house 252

Eyre's Case 13

Farringdon et al' and Bettison 363
Fawcett and Buck 242

Ferrers (Earl of) and Nightingale 206
^ Finch V. Earl of Winchelsea 400

* Fleetwood and Gould 251, 252

* Fletcher and Lowther 46
Flower and Tourton 369
Fortescue Aland et al* and Sheldon 104
Foley and Jordan 412
Fowler v. Fowler 353

* Freeman v, Goodland 41 1

A TABLE OF THE NAMES OF THE CASES IN VOL. IIL xiu

359

«90

255

252

186

411

387

134

184

251, 252

Thomas

266

306

40,50

103

^ Fullham V. Jones
Fatso and Godfrey

Calton and Mallack
Gibbons and Cole et al'

_ »

Gibbs 9. Cole
Gibbs and Davis

* Glover and Powell
Grodfrey v. Farzo

^ Goodland and Freeman
Goodchild and Jones
Goodwyn v. Lister
Gordon o. Raynes

* 0ore and Weekes

* Gould V. Fleetwood

* Grafton, (Dake of,) v. Sir

Hanmer

* Green v. Ekins
Green and Dunn

* Grice V. Grice
Grosvenor, Ex parte

* Hales o. Risley
Han V. Hardy
Han and Potter

* Hammond o.'Jones
Hankey and Morrice

* Hanmer and Duke of Grafton

* Hansley and Duncomb
Hardy and Hall
Harris o. Ingledew
Harris v. Pollard

* Harwood and The King

* Harvey and Belsh
Haslewood o. Pope
Head v. Egerton
Heard et Ux' v. Statnford

* Hepder v. Rose 124,

* Hetherington and Sidney 146,
Herbert, (Mr.) his case

* Hickman and Led some
Hicden et al' v. Williamson
H,^gM» and Stadholme
Htnlso^ o. Earl of Warrington
Holder v. Chambury
Itolmeden and Lomax
Hopkins, Ex parte
Hofiey*)i case

P«g«
222

185

Page
Humphreys, (Orlando,) v. Sir WH«

liam Humphreys 840

Humphreys, (Sir William,) v. Or^

lando Humphreys ' 395

* Hungerford and Countess of
Bristol 104

* Huntingdon, (Earl of,) ow Coun-
tess of Huntingdon 310

Hutchinson and Atkinson 25S

Hyde, (Commissary,) his wife and
BeU 36

♦ Jenner c. Tracy 288
Ingledew and Harris 01

♦ Johnson v. Medlicot 130
Johnson v, Ogilby et aP 277
^ Jones and Fullham 222
Jones V. Goodchild 33

♦ Jones and Hamond 318
Jones V, Earl of Strafford et al' 70
Jones V. Thomas 243

♦ Jordan v» Foley 412

♦ Ivy V. Ivy 63

210
187
302
318
146
266
333
187

01
348
118
288
322
280
409
317
147
116
114
132
300

35
256
176
152J

Kerridge and Martin 240

* Kidby and Luther 170

* King, (Sir Peter,) his account of
abjuration 38, SO

* Kingsmill, Ex parte 1 11
King v» King and Ennis 358
King t). Withers 414.
Knight V. Knight 331

Lake v. Craddock et al* 158

^ Lamprey and Atwood 128

^ Lane v. Cotton and Frankland 394

Law V, Law 301

Lechmere v. Earl of Carlisle 21 1

* Ledsoqie 0. Hickman 114

Leigh and The Attorney-General 146

Lewen and Sellon 239

Lew in V. Lew in 15

Lilly V. Osborn 298

Li&ter v. Goodwyn 387

Lomax v. Ilolmeden 176

KIT A TABLE OF THE NAMES OF THE CASES IN VOL; in.

Page
London Assunnce Company v.

East India Company 326

* Llojd V. Lord Say and S^ 170

* Lloyd and Burton 385

* Lloyd «. Cardy 313
Llo>d et al' V. SpiUet 344
Low 9. Barron 262
Low and Chariton 328

* Lowther ©. Fletcher 46

* Luther v. Kidby 170
Lnxton v. Stephens 373
« Lyne v. Wiiiis 352

Mallack v. Galton 352

Marshall et Ux* and Blue 381

Martin v. Kerridge ' 240

Marwood v. Turner 163

Mealani/Wych 310

* Medlicot and Johnson 130
Mills V. Banks 1
Miller v: Miller et aP 356

* Milner and Curwyn 292

* Molineuxt). Powell 268

* Montague, (Duchess of,) and
Rawlinson 264

* Morrice v. the Bank of England 402
Morrice v, Hankey 146
^ Mortagh and Carlton 315

Naish and Tounrille 307

Newsome v. Bowyer 37

Nightingale et aP v. Com. Ferrers. 206
North V. Comit' et Comitiss' de
Strafford 148

* Norton v, Norton 317

* Ntttton and Thurston et De Chair 237

Ogilby and Johnson

* Onslow, (Mr.) his case

* Orford, (Earl of,) and Darston
Osbom and Lilly

Osmond v. Fitzroy et Ducem de
CleTeland

P.
* Packer v. Wyndbam

277

401

298

129

199

* Pakeman v. Cosby

* Parker v. Turner
Paschall and Lord Carteret

* Peach and Weeke^

* Pendlebury and Allen
Pendrel r. Pendrel
Pett and Robinson
Piddock V. Brown
Pierce and Adams

* Pitt and Berney
Pollard and Harris
Pope and Haslewood

* Potter V. Hall

* Powell o. Glover

* Powell and Molineux

* Powes, (Lady,) her case
Pusey o. Desbou?rie
Pyke and Croft

^ Rawlinson 9. Duchess of

tflgue
Raynes and Gordon
Rex V. Bigg
Rex V, Burridge

* Rex'r. Harwood

* Rex r. Raines

* Rex V. Smith

Rigby andThe Attorney»Ci
Risley and Hales
Roberts v. Roberts
Robinso^ v, Pett
Robinson et aP v, Tonge
Rogers r. Rogers

* Rose and Hender

* RoswelPs case
Rowlandson, Ex parte

%\4
ID
197
230
142
27«
240

11
29^
349
32$
70, 39*
^b%
968
97)
3l6

130

Mon-

264
134
419
439
118
337
IM
146
210
66
249
398
193
124, 317
208
405

eperal

^ Savage and Day )7

* Say and Seal, (Lord,) and Lloyd 170
Scott and Cowper 119

* Searle and Lord Barrington 397
Sellon V. Lewen 239
Sharp V. Carter and Erans 374f
Sharpe and Taylor 371
Sheldon o. Mr. J. Fort.escue Aland 1(>4

* Shepherd v. Shepherd 234
Shirley v. Comit' Ferrers 77

* Sidney v. Sidney ^9
Sidney v. Hetherington 146^ 147

A TABLE OF THE NAMES OF THE CASES IN VOL. III. xr

Slanning v. Style 334 1

Smith V. Turner 413

Somerset, (Duke of,) v. Cookson 390
South-Sea Company v. Wjmond-

seU 143

Spenser and Wilson 172

Spettigue v. Carpenter 361

SpiUet and Llojd 344

Stamford and Heard 409

Stephens and Loxton 373

Stonehonse v. Evelyn WZ

Storke v. Storke 51

Strafford, (Earl of,) and Jones 79
Strafford, (Earl and Countess of,)

and North 148

Studholme v. Hodgson 300

Style and Slanning 334

Tanner v. Wise 295

Taylor v» Sharpe 371

Thomas and Jones 243

Thompson's case 195

* Thompson V. Crocker 315
Thombury and East 126

* Thurston et De Chair v. Nutton 237
ToDge et al' and Robinson 398

Toartoo v. Flower
Tonrville v. Naish

* Tracy and Jenner
Turner and Marwood

* Turner and Parker
Turner and Smith

369
307
288
163
10
413

Page
W.

« Walrond and Wheeler 63

* Ward and De Golls 311
Warrington, (Earl of,) and Hodson 36

* Wasteneys v. Chappel 265

* Webb, (Mr. the Conveyancer,)
his opinion as to the limiting
over a remainder in an estate for
lives, after a grant made thereof

to one and the heirs of his body 263

* Weeks V. Gore 184
^ Weekes v. Peach 230
Westley and Clavering 402

* Weston V. Berkeley 244

* Wheeler v. Waldron, where see
an observation on that case from

the record 63

Whitfield and Bewick 267

* Wildey v. The Coopers' Com-
pany 128

Williamson and Higden 132

Willing V. Baine 1 13

* WiUis and Lyne 352
I Wilson ani/ Colton 190

Wilson V. Spenser 172

* Winchelsea, (Earl of,) and Finch

399,400

* Winter v. D'Evreux 189
Wise and Tanner 295^
Withers and King 414
Witter V. Witter 99
Woolcomb 9. Woolcomb 112
Wrottesley v. Bendish 235
Wych r. The East India Ck>mpany 309
Wych V. Meal 310
Wymondsell and The South Sea

Company 143

* Wyndham and Packer 199

yick V. Edwards

372

• Yale, Ex parte

[1]

TERM. S. TRINITATIS, 1724.

MILLS V. BANKS. Case 1.

On the marriage of Mr. Lutterell with Mrs. Mary TVegon- Lord Chan-
wett, in 1680, Mr. Lutterell made a settlement of his estate ; ^^^^ ^^^'
and Mr. Tregonwell, the father of the said Maryy made also o £<, r Ab
a settlement of Ms estate \ and in the Tregonwell settlement 491. pL4.
there was a term raised out of the Tregonwell estate (being S^*uf* ^ ^ *
the manor of Milton-Abbcu, in Dorsetshire) subsequent to raiacdau^h-

_ , ,^ • -i ^ ^^ m . \ m' ten' portions

several estates smee determmed, to the use of trustees for by renu, is-
two hundred years, remainder to the use of the first, &c. son J^"' ^? P'**'
of the marriage in tail-male, remainders over. making leases

for three liyes
at the ancient rent ; or by granting copyholds on fines ; the money to be paid to the daughters
at their age of eighteen or marriage, or as soon after as the same can be raised out of the pre-
mises as aforesaid; the portions, as it seems, may not be raised by sale or mortgage.

The trust of the two hundred years' term was,' to raise
10,000/. for the younger children, sons and daughters of the
marriage, by rents, issues and profits, or by making leases for
one, two, or three lives, or for any number of years deter-
minable on one, two, or three lives, reserving the ancient
rent; or by granting copyholds on fines ; the money to be [ 3 ]
paid to the daughters at their age of eighteen or marriage,
and to the sons at twenty-one, or as soon after as the same
could be rmsed out of the premises, as aforesaid. There
were issue by the marriage one son and two daughters ; the
son died when about twenty years of age; the two daugh-
ters intermarried, the eldest with Sir George Rooky the
youngest with Mr. Harvey ; and he soon after dying, she
married Mr. Ash.

VOL. III. B

Mills

Banks.

2 De Term. 8. Trin. 1724.

In 1706^ the Lord Cowper decreed this 10,000/. to be
raised by sale of the trust term, and to carry interest only
from the time of the decree. Mrs. LuttereU surviving Mr.
lAitterelly married Sir Jacob Banks, by whom she had issue
two sons, and died ; and Sir Jacob Banks and the two in-
fant sons were parties to the decree. After the making of
which decree. Sir George Rook and his Lady being dead, and
having left an in&nt son, and executors in trust, the execu-
tors lent 5000/. to Mr. jish on a mortgage of this trust term
for two hundred years, which mortgage was approved of by a
Master, and the money placed out in pursuance of a decree
that had been made in another cause touching an account of
the estate of Sir George Book*

And now the cause was reheard [A] before the Lord Mac-
clesfield; when it was insisted in support of the decree, that
the same being made by the Lord Cowper, in 1706, (eighteen
years since) and so many things done in the mean time ; as
tke lendii^ of an infant's money, put out by a decree of thh
cotirt with the approbation of the Blaster, and lent by exe-
cutors in ecmfidence of such decree, and, as it were, by the
[ 3 ] &and» of the court, it wouH be very hard to reverse such »
decree ; so that if there were any difference to be fimnd be^
twixt this and the case of Ivy v. Gilbert, that deference,
tiioiq;h but a slender one, ought to be allowed, and the d^
eree to stand. And it was much insisted, that in the prin-
cipal case there was a most apparent diftrenee ; the money
being by tiie deed appointed to be raised and paid at a cer-
tain time (viz^) the portioos for the daughters at their age
of eighteen or marriage ; and though the subsequent words
were, or as soon afterwards as the same can be raised out of
the premises, €u aforesaid; yet this must be still understood
to mean ^l such time as might best answer the intent of a
portion, so as that the daughters might have their money in
a reasonable time to advance them, which could not be done
by the yearly profits ; these being so small, as not to be suf-
ficient to pay the money in twenty years, and would rather
be an annuity than 9l portion.

Besides, the settlement in the case of Ivy v. Gilbert was
made in 1651 ; when the word profits was not taken in a

r A] Note ; The decree of the Lord MaecUifield in the cate of Ivy v. Gilbert,
and which was afiifmed in the House of Lords, (vide vol. 2. 13.) occasioned
this re^hearing.

De Term. S. Trin. 1724. ^

flense so large, as to extend to profits arising by sale : but^ Mills
according to the natural and obvious import of the word, ^'

signifying the annual profits or rent of the land. And thb
was mentioned as one (a) of the reasons for the decree in (a) Vol.3. 20.
tiiat ckBB.

Neither in the case of Ivy v. Gilbert was there any money
put out with the approbation of the court, which was to be
endangered by the determination then made ; moreover, that
was allowed on all hands to have been a hard case, and for
that reason not to be extended : that the lending money on
an estate decreed to be mortgaged or sold was not to be dis-
countenanced; and though it might be objected, that the
words of the trust of this two hundred years^ term being, to [ 4 ]
raise the money by rents and profits, or by leasing for three
lives at the old rent, or by the granting of copyhold on fines;
though it might be objected, that the word profits cannot
here be extended to a mortgage, because the leasing is con-
fined to three lives, and at the old rent ; yet that would be of
no consequence, because in conveyancing it is common to
make use of many unnecessary words ; for instance, to say,
that the portion shall be raised by rents and profits, or by
leasing, mortgaging, or selling; and yet the word selling
Implies all the rest. That in the cases of Butter v. Dun-
comb, (i) Corbet y. Maidwell, (c) and Reresby v. Newlandy{d) (*) Vol.i. 448.
the father or mother of the daughter wa« living, who, it was 655. ^"^ '
to be presumed, would take care of their own child ; and in (^ ^^^' ^.93.
those cases the mortgage or sale desired for the raising of the
portions was a mortgage or sale of a reversion. That if in
answer to the length of time since the decree it should be
alleged, that the said decree was against an infant, to whom
no laches can be imputed, and who, as soon as of age, applied
to be relieved against it ; to this it might be replied, that as
the heir of the Lady Banks was an infant, so was also the
son of Sir George Rook, whose money was lent under the
decree of the court, and with the approbation of the Master,
upon this very term, which my Lord Cowper had decreed to
be sold as aforesaid ; and it is observable, that whenever an
estate is decreed to be mortgaged or sold for the raising of
money, infants concerned therein have not a day given them,
after their attaining their age, to shew cause, neither is their
in&ncy regarded.

Lastly, With regard to the rehearing of this cause, the
same was sdd to be a matter not of right, but merely discre-

De T'erm. S. Trin. 17®*.

Mills tioniuy ; ^'the court might either grant a rehearing, or refuse
^' it ; and on this rehearing might open the decree, or deny bo

'to do. And the diversity usually taken at this time of day is,
^ ^ between profits generally KaA yearly profits, the former ex-
tending to signify the land itself, or the profits which it will
any way yield.

On the other side it was urged, that the principal case was
not to be distinguished from that of Ivy v. Gilbert; that the
10,000/. was to be raised by rents, issues, and profits ; or by
leasing for three lives, or ninety-nine years detertninable on
three lives at the old rent ; or by granting copyholds on fines;
so that, though it should be admitted that the word profits^
if left general and at large, would extend to any profits, as
well those arising by sale or mortgage, as such as should be
produced annually ; yet in the present case there were terms
of explanation, which restrained it to signify only annual
profits ; or else, why was the power of leasing, or granting
copyholds, added ? Nay, even in the way of leasing, the party
was obliged to reserve the ancient rents ; and could he that
was disabled to lease for less than the ancient rent, be ima-
gined to be intrusted with a power to sell ? That supposing
the trust were to raise the money by rents, issues, and pro-
fits, or by selling a moiety of the lands during the term,
could it be thought that, by virtue of the word jfrq/Us, the
trustees might sell ojie half, and also by their express power
to sell, dispose of the other half ; which yet, by the constmc-
tion contended for, they might do, but that this would be
monstrous to the highest degree.

As to what has been objected, that the decree in the case
now re-heard was made eighteen years since, and that money
had been lent on the term decreed to be sold : no precedent
[ 6 ] could be shewn, where matters happening since the decree
were ever allowed to add to the strength or reason thereof ;
neither could arguments of compassion alter the case, which
must be governed by the express words and plain intention of
the trust; though, considering the great portions by which
the daughters of Mrs. Lutterell (now Lady Banks) were
provided for, by her former husband, and also what a charge
this 10,000/. in question, together with the interest thereof,
would bring on the inheritance and on the son and heir of the
Lady Banks, it was most reasonable that her estate should
be eased of this burden as much as possible.
That if the money had been to be raised by leasing or

De Term. S. Trin. 1724. 6

granting copyholds, and not otherwise^ there would be little MfLU

question, but that the trustees, in such case, coidd not. sell ^*

or mortgage ; now here these words were plainly implied ;

these affirmatives manifestly inferred a negative ; and this

was the reason (a) of the decree in the case of Butler v. (a) Vol. 1.452.

Duncomb. So in our law books it is the general doctrine, AffinnatiTe

that affirmative statutes imply a negative. [B] l^^^iJ^^*'

Further : Where the words and intent of a settlement are
plain, it is improper to argue from the inconveniences
arising from such settlement; for the same settlement which
ordered the payment of the portions at eighteen, or as soon
after as the same could be raised by the means aforesaid,
might have ordered the payment thereof at the daughters*
age of forty years ; the same settlement which secured to the
daughters in the priqcipal case a portion of 10,000/. might
have given them but one thousand pounds ; in which case,
had they complained never so much, they copld not have
been relieved ; or it might have provided these portions for [ 7 ]
such of the children of the marriage only as were otherwise
unprovided for, or as should be unprovided for at the death
of the father and mother, as in the case of Corbet and Maid-
well: that the case of Sir WilUn^hby JEckman{b) v. Sir (*)Trin.i7io.
Stephen Anderson was allowed to have been an hard case 655.
upon the daughter; but there the court said, they could no
more relieve her than they could make a new settlement.

Lord Chancellor : The principal case in some things dif-
fers from that of Ivy and Gilbert, but not materially, and in
many respects is not so hard a case as that was. It is very
observable, that here in the settlement of the Tregonwell
estate, the trust of the two hundred years' term is not said to
be for raising portions for daughters, but only the sum of
10,000/. It is only the term in Mr. LutterelVs settlement
that is for raising portions for daughters, and thereby the
portions and maintenance are provided ; so that in the case
in question, none of the arguments drawn from the necessity '
of raising daughters' portions within a reasonable time are
applicable, the money to be rtdsed here being a bounty and
not a portion.

I cannot but think it to have been a due and just resolu-
tion in the case of Butler v. Duncomb, that all trusts of

[B] See a remarkable instance of this cited by the reporter in his argament
in the case of The King v. Burridgey post, 461.

7 De Term. S. TVm. 17M.

MxtLg terms directing the melhodB of raising sooafij imply n mK
^ ^ gsttive^ (Vts J tluit the money should h» leised by the methods
presfirihed, and not otiierwise. [C] I admit the word jpro-
Jlis, if found alone, would include a mortgage or sale : h^t
here the suhsequent clause shews, that th^ehy must be in«
C ^ 1 tended annual profits only, else such subsequent olause for
raising the money by leasing or granting copyholds would
be abaurd. The natural meaning of the word jirqfits is con-
fined to such as are annual, though in this court on particuhir
occasions, and to serve particul^ purposes, the B^n^ thereof
ha» been extended, unless where subsequent words wer^
thought to abridge it : but sttU any one no(t a lawyef would
understand it in the restrained sen§e« In the prin^^al cas^
it is a stretch to constaie it otlierwise, hy ^eaa^on of the sub-
aequ^nt clause of leasing for three lives at racJi; r^t^s^ and of
granting copyholds. It might be as well insistedf that the
trustees might ma)(e a lease for four Hves. or {or years, 4e^
terminable upon the death of fmr lives ; or that they might
make a lease few years, reserving le9S than the old rent, as to
say, th«t under this tru^t they might mal^e a mortgage or
sale of th^ term. And the case has been rightly put, that
supposing the U'ust were to raise the money by rents, issues,,
or profits, or by sale of a moiety of the premises, there
could be no question but that the word profits would not
warrant the trustees to sell the other moiety.
It Is in the du- So that 1 should uot have made this decree, but the same
Coult'whether ^^^uig been made, and this being a re-hearmg, as it is in
or no to ^rant the discretion [P] of the court whether they will grant a
re-hearing, it is equally so whether they will do any thing
thereon.

Moreover, when an infant's money has been lent under a
decree and by the approbatiop^ of a Master } for the Court

[C] See his Lordshjp's opiujon to this purpose, in the case of Ivy v. Gilbert^
vol. 2. 19.

[D] In the case of Mr. On$lowy the present Speaker of the Houie tfC^m*
fiioftf, the Coart, oq the circasusUiQc^s of the case, and thp de^^rse not b^ipg
inroUed, refused to discharge aa order for a rehearinj;, thonj;h at the dislaoce
of about twentj-four years. By Lord King, the last seal after Hilary Term,
1732.(1)

>««■

(1) Vide Buck v Riwcett, post, «42, P. G. U% Haugbfo^ v., W^f/, ^ ^rq.
Dtichesi of Hamilton v. Manhy^ 4 Bro. P. C i52.(x)

(x) Pentland v. SUoketj tt Ba. At Be. 76.

De Term. 8. Tiin. 1724. 8

to make another decree eettfaig aside this eeGurity would be ^'^^
to make the Court fight against itaelf and act incoBnusteotly ; Bamxb*
all which readers it more proper to apj^y to a ^superior TheCourtwiU
Court. Again^ as the Court never gives any iHd agamst a ^^ without
purchaser or mortgagee without notice, this is a stronger asideaweurity
case ; for though here is notice of the settlementp here is also jJ^^J^J ^
notice that the Court has declared and decreed that the term approved of by
thereby raised^ and the trusts declared conceming the i^une, ^^r^M^cn
empower the trustees to sell tibe premises for nusing the L ^
money for the daughter of Mrs. Lutterelli and a power to
sell iffiplies a power to mortgage, which is a conditioAal sale.
Wherefore, if the defendant Bonks^ the heir-at-law of
Mrs. JLuiiereUf (afterwards Lady Banks) would have the
opinion of this Court in the case, and is for settiiq; aside
these securities, on which the money of Sir Ckatgt Jtooky
now behmging to his in£euit son, is placed ; it seems neces-
sary for him to bring an original biU. However, I will re-
serve liberty for Mr. Banks to apply to the Court, that so
he may have time to advise with his counsel what method it
may be proper for hun to pursue in this case, which is indeed
a very extraordinary onc.[E}

[E] It appears from the Register^ bookj that on the llth of June^ 1795,
Imre was a petition to have badL the deposit, the parties having amicably ended
tiie flHitter*

DUMfN t;. GREEN. Case^

A ccyrrHOLDBR in tall accepted a grant from the lord of the Lord Chan-
manor of the freehold and fee-simple to him and his heirs, cellor Mac
wd died hidebted by bond wheieia the heirs were bound ; <^^«n>^>»>
and on a bill bronght by life bond-crecEtor for satisfaction oat i^^^ i? teU.
of the assets left by the obligor 3 the question was, whether ^IflffS?^
the premises were assets by descent, and liaUe.to the bond } tkt cop^oki

•The Lord Chanccilor, «fter tfane taken to consider of it, ^e^^p^^^!^^
thus delivered his opinion. thouffhen-

Unless it be expressly fnmd tint tiie custom of the manor extinct.
aMowB of entails, then this is a fee conditional, and plainly [ *10 ]
merged by the grant of the freehold in fee : but supposing
the custom of the BMUior the$ wairant entails, yet the copy-
hold is extmguished ; because in the eye of the law, thai is

De Term. S. Trm. 173*.

Dunn but an estate at will^ and must be merged by tbe grant of
p ^' the freehold. The premises by such grant are severed from
the manor ; consequently, the custom of the manor cannot
corroborate the legal estate at wilL The copyholder cannot
hold of himself ; and the copyhold, though entailed, is swal-
lowed up [F] in the greater estate of th6 freehold ; and as the
tenant, after such time as he took the grant, did not himself
continue a copyholder, so his pon, on the descent of the
freehold, is likewise no copyholder, which may be said frt>m
son to son ad infinitum. Moreover, if the entail of the co-
pyhold be not extinguished, it will be ^ perpetuity ^ since the
only proper way of (1) barring the entail of a copyhold,' is

[F] See 2 Chan. Rep. 174. and 1 Vern. 393, 458, Parker y. Turner, where
the Lord Chancellor Jefferys delivered the like opinion In the like case. Qucere
autem, If u4. be a copyholder in tail, remainder to B. in fee, and A. takes a
grant of the freehold from the lord to him and his heirs, and dies without issue ;
is not £., in whom there was once a vested remainder in fee of the copyhold
premises, entitled to the same ?

(1) It has been since determined that
where the custom does not prescribe
any particular mode of barring the en-
tail of a copyhold, a surrender (although
only to the use of the will) will be suffi-
cient for that purpose without a custom.
Carr v. Singer, 2 Vez. 603. Moore v.
Moore, 2 Vez. 596. But a custom to
bar by surrender may be concurrent
with a custom to bar by recovery.
Everall v. Smalley, 1 Wils. 26, and 2
Stra. 1197. S. C. Doe v. Truby, 2 Bla.
Rep. 944. (x) With respect' to the
quaere made in the note above, it seems
that the remainder-man could have no
equity against the tenant in tail, (who
had pooer to bar the remainder by one
mode or the other) upon the principle
of Cann v. Cann, 1 Vern. 480.(^) So
in Blake v. Blake, before the Cowvt
of Exchequer, July 18th 1786, Robert
Blake the elder devised a lease for three
lives holden of the Bishop of Bath and
Wells, in trust for his so^n Robert
Blake the younger and the heirs male

of his body, and in case he should die
without issue, Tor the plaintiff (his other
son) in like manner. Robert Blake the
son surrendered the old lease, and took
a new lease for three lives, to him and
his heirs, all which was done without
the concurrence of the trustees under
the will. Robert Blake the son died
without issue, having by will disposed
of the said lease. The bill was filed to
have the benefit of the new lease, insist-
ing, that the surrender of the old lease
and the taking of the new one were
not sufficient to bar the limitation to the
plaintiff under the father's will, and that
those claiming under Robert the son
ought to be declared trustees of the new
lease for the plaintiff. — But the 0>urt
was of opinion, that Robert the son
being tenant in tail, a Court of Equity
could not have called upon him to have
declared such a trust in his lifetime,
and that there was no stronger equity
against his representatives; and dis-
missed the bill. («)

70.

(«) Doe V. Oisingbrooke, 2 Bing.

(y) So Challoner v. Murhall, 2 Ves.
Jun. 524. Fletcher v. Toilet, 5 Ves. 3.
(z) 1 Cox. 266. Blake v^ Luxton,

Coop. 178. S. C. 6 T. R. 289, and
S. C. stated in Campbell v. Sandys, 1
Set). & Lef. 294, and see Lloyd v«
Johnes,9 Y'es.OS.

De Term. 8. Trin. 1724. 10

by recovery in the Lord's Court j but after such severance as Dunic
IB the present case, no recovery can be suffered in the Lord's ^•

Court.

Another point in this case was, that the obligor in the ^JLeif ^
bond (the salis&ction whereof was sought by this* suit) had Ms hein by a
in his life time made a mortgage of some lands of which he o^^l^^g
was seised in fee, for more than the value ; and the mortgagcfe iome laada
offering the lands in sale, the purchaser would not proceed, Beliedin fee
unless the heir of the mortgagor (who was also heir of the ^^ ^^ ^}^
obligor) would join in the conveyance, and the heir had 200/. heir bu 2001.
of the mortgage money for joining; whereupon the question iaV^e°of
was, whether this 300/. was assets? Sf a^^if' *

Lord Chancellor : This is not assets, having been paid to not to be
buy oflF the obstinacy of the heir, and not for the value of his ***r*'i. • -1 •
equity, which was worth nothing. v

ADAMS V. PEIRCE. Case 3.

Onb AddfMy possessed of some leasehold and other personal Lord Chan-
estate, had a son and two daughters; and by his will gave to cellor Mac-
the value of about 2000/. a-piece to his two daughters, and ciespield.
devised several leasehold estates to his son; and^ if. his son
should die within age, then the premises devised to his son
to go to his daughters. The residue of his estate the testator
bequeathed to his daughters, and made his brother the plain-
tiff executor.

The eldest daughter married the defendant, Dr. Peircey
who before marriage settled a ground rent of 99/. per annum
on his intended wife and her issue in strict settlement, and
also settled 1000/. part of the wife's portion.

The second daughter married a freeman of London; and
before the marriage the executor, with the consent of the
intended husband, assigned over good part of the portion to [ 12 ]
trustees for her separate use, and to be at her separate dis-
posal.

Both the daughters and also the son were infants ; and the
son having by assent of the executor entered on the lease-
hold premises, died during his infancy, whereby a consider-
able personal estate (to the amount of about AOQOL) came to
the two daughters*

1% De Term. 8. Trin. 1724.

▲pins The plaintiff^ the executor ia trast, brought this bill to

p ^ paaa his own accounts; and that the two husbands, in con-

*"^^^ sideration of the increase of their wives' portions^ might

nake additional settlements i especially the citizen, who out

of hia own estate had made no settlement before.

Lord ChanoeUort The executor is here plaintifl^ and not

the husbands i if the latter had asked any aid in equity, the

Court would have refused granting it but on each terms as

ahould appear reasonable*

^Vkmatsna But the executor havii^ assented to the legacy of the leaser

d^T^edtoV. ^^ estates to the son, this is an assent likewise to the

^fr^» v^ devise (a) over to the daughters, who have thereby gained a

and tha axe* "* Iqgal int^wst in such leasehold estates, which I cannot take

to 1^ dirUie ^^ them> noT divest them of iHuit ia abeady vested in them
to A., thiaii a by act of law.

goodaaaent to

the deriae orer. (a) Off, Exec, Oct Ed. 234«

If money be Indeed, with regard to such part of the estate as consists
infant dangh- in money, the executor being but a trustee thereof for the
riM^tiT "cOTirt ^^^> ^® Court can choose whether they will let the hus-
may leftiaa bands have the money without making a * suitable settle-
hu^u^ to the D^ci** ^poi^ ^^^ wives j but the defendant, Dr. Peirce, hav-

. ing made a setdement before maniage, and being a person

aidtable let- eminent in his profession as a dergjrman, and possessed of
^ r ^« 1 s 1 P*^^ preferments in the church, let him take the money due

•• -• tohiswife.

^^lOTgh, If the Ako as to t&e other husband; he Imng a linen-draper in

amaU» and the CemhHlf a man of great deaHngs, and in a thrtvtng way; the

f mman of Provision whieh his wife will be entitled to by the cnstom ot

London, the London is a good provision ; and the money coming to the

London is a husbands, ex^ttsive of the leasehold estates riready vested in

atiitable pro- them by the executor's having assented to the legacy, being

but inconsiderable, it is not worth whOe to settle that.

Therefore let the executor account with the husbands, and

have bis costs to this time, reserving all subsequent costs. (1)

fl) Vide Jacobson v. WiUiamty ante, 1 vol. 458. MUner v. Colmer^
ante, 1 voL 382. BorM v. Brander, ante^ 3 vol. 639.

De Term* S. Trin, 1730. 19

EYm'9 CASE, Tmi^. I79d. Om 4.

BY marriage artldM money wae )aU out on aecurittes^ and ^^^"^ iSmam
agreed to be invested in land, and settled on the fansband for "^*" Kmc-
Kfe, remainder to the wife for life« remainder to the first, &c« ^ ^' ^^ Ab.

42 pi. 4

aon of the marriage in tail naale^ remainder to the right ^^ir«i uimrUm^
of the hnsband. The huabaad ai^ wife died, Jiving only ylStcdtoA^
one son, who being come of age petitioned the Lord Chan- chase; and to
cellor, that in regard if the lands were purchased, he would, j^SS'nMnSn-
aa the only issue, be intitled to the purchased premises, dertoA.infee.
remainder to himself in fee, as heir to his father; and since wife nor isaue'
a fine only would enable him to dispose of the premises, ^ ^^^^^^
which fine might be levied as well in vacation as in term : poae of the
for these reasons the petitioner applied for an order, that tiedlyertibe
the * money should be paid to him, agreeably to what had <»vrt wUl not
been done by the Lord Parker in the case of (a) Short v. nejtobepaid
fFoodf and in many others of the like nature ; for that it ^ ^'<^^m^
would be a vain thing for the court to enforce the making of not, if there
a settlement, which, as soon as made, might immediately be ^7or ^Umie i
defeated. Otherwise, had there been a remainder to a third l>nt lee tho
person, as in such case the settlement could not be defeated [ *14 1
without a recovery, and the same not being to be suffered but (a) VoL 1. 471.
in term, (before which the tenant in tail might die) therefore
the court has been tender of taking away such chance from
the remainderman.

Lord Chancellor : I cannot see why I should not have the
like regard for the issue in tail, as for the remainderman: it
is possible the son (the petitioner) in this case, before he can
light on a purchase, and settle it, may die, leaving issue; and
this is a chance of which I would not deprive such issue. Also
here may be a wife whom I may hinder of her dower. And
though Mr. Solicitor General Talbot pressed this matter with
some earnestness for the petitioner, the Lord Chancellor de-
clared he could not do it, until he should be better satisfied
from precedents [G].

[6] Afterwards, in the case of Mr. Onslow (cited in that of MiUs v. Banksy
ant* 8.) the Lord King declared his perseverance in opinion as to this point, ob-
serving, that the levying of a fine is a thing of time, there being several offices to
pass; and the writ of covenant is to be under the great seal. All which im-
pediments, not being to be removed in an instant, the tenant in tail may by
them be prevented from perfecting a fine, though never so much intended by

De Term.S. Tnn. 1736.

blm. Bat yet after all, the present practice conforms (1) to the Lord Parker's
opinion: naj, if a feme covert is interested in the money articled to be laid out
in land and settled, her coming into court, and consenting, will be (2) sufficient
to dispose of such her interest. As to the objection made by the Lord King in
the principal case, that by this means a wife might be hindered of her dower ; if
the party applying for the money were raai^ried, it would, without doubt, be ex-
pected that his wife should appear in court, and give her consent thereto.

. (1) Tide Benson ▼• Benson, ante,
1 vol. 131. Short T. Wood, ante, 1 yoL
471. Edwards t. Countess of Warwick,
ante, 3 toL 173. Trafford v. Boehm,

3 Atk. 447. Cunningham v. Moodyy
1 Vez. 176.

(2) Cunningham v. Moody, 1 Vez.
176. Oldham y. Hughes, ^hi^Ab:^

De Term. 8. MchaeH$, 1727.

DS [ 16 ]

TERM. S. MICHAELIS, 1737

Dame Susannah Lewin^ a Lunatic^ ^

Widow of Sir William Lewin> Plaintiff; Case s.

deceased J by her Committee j Lord Chan-

cellor Kino,

George Lewin^ Esq ; Defendant.

Sir William Lewin, a freeman of London, left a wife [a Sel.Ca.i]iCha.
lunatic] and no issue^ and left his cousin^ George Lewiny |^^ ^^ ^|^
his executor. The question was^ whether in case a freeman 159. pi. 6.
before marriage makes a settlement of part of his personal London before
estate upon his intended wife, this bars her of her customary ni«ri*g« «*-
part? And at the hearing, the late Lords Commissioners sent of hisperwiial
it to the lord mayor and aldermen to certify what the custom ^^^^^^
of London was in this case. On the 29th of March, 1726, the wife, to take
court of lord mayor and aldermen having heard counsel on death, without
both sides, certified, that they did not find there was any S®???*"^*!!
custom of the said city, by which a woman, who before her her cnstoimuy
marriage with a freeman thereof accepts of a settlement upon ^Mher^^Bnch
her of part of her husband's personal estate, to take efiect customary
^ter her husband's death in case she shsdl survive him, (with- ^^ ^5 1
out taking notice of the custom of London) is or is not barred
of a customary part of his personal estate; and therefore they
submitted the same to the determination of the court.

The question sent to the court of aldermen to be deter-
mined being thus returned to the court of chancery, the Lord
Chancellor King ordered the return to be quashed for uncer-
tainty; and that the lord mayor and aldermen should certify
a direct answer to the question, affirmative or negative. On
the 1 1th of Jlpril last tihe court of lord mayor and aldermen
certified, that having inspected some further precedents, which
Aey were not apprized of before, they did find, that if a wo-
man before her marriage with a freeman of London acceptsof

16 De Term. A Michuelit, 1787.

Lewin a settleineiit upon her, to take effect after her husband's

V* death in case she survives him, of part of his personal

Lewin. estate, (without taking notice of liie custom of London) she

is thereby barred of her customary part of his personal estate.

}j ^ rtMcitot And nov^ it was objected, that this return ought not to be

of London be received, because not signed by the recorder; and that it was

m«^ lithe reasonable, inhere properties of so great value, as those which

bar ore temu. the citizens of London possess, are to be determined, that tiie

returns should be with the most precise and exact certainty.

Now one might be prevailed on to say by paroly what the same

person would not venture to give under his hand.

To which it was answered, that in the precedents in Rastal
143. and in Cro. Car. 361. 7%e King v. Sagshaw, both
[ 17 3 which are certificates of the mayor and aldermen, the [A] re-
corder makes this return ore tenuSy et non aliter; and so like-
wise is the opinion in Salk. 192. the mayor of Thetfor^s case,
where Holt Chief Justice says, that at common law no officer
(tf) llffid. 2. teas bound to sign a return ; and the statute of (a) York obliges
^ ' a sheriff^ to do it, but does not extend to mayorsy coroners y or

other officers.

Lord Chancellor t The recorder is not bound to sign this re-
turn, but did formerly come td the bar in person, and pro-
nounce it ore tenuSy and the mayor or recorder is not within
the statute of York: so that the return is well enough. The
reason 6f the custom in the present case seems to be, for
that the wife does not here trust to the custom of the city of
London for her provision. Whereupon the Lord Chancellor
declared, that the wife was in this case barred of her custom-
ary part.

The precedents produced on this occasion (and the first a
very remarkable one in respect of its consequences) were as
follow :

Lib. de antiquis legibus, 30 H. 3. Anno 1246, de dotibus
mulierum London/ Eodem anno die lunaB prox' prius hoke-
day [B] adjudicaJC fuit in Guildhalty quod mulier certd et spe--
cificatd dote dotatUy non potest nee debet amplius habere de

[A] Bat note; if the certificate be fahe, an action lies against the mtiyor and
aldermen, and not against the rteorder; for it is their certificate by the recorder.
Hob* 87. Day v« Savage.

[B] The first of August: Hoketidey Hockday or Hootide (cscdes) diem ob-
servatom tradont in memoriam omnium Danorum ea die clanculd el simul, in
Anglii ubi turn dominabiratur, 4 nmlieribus ferd oeeisorem. Vide Spehnatfs
Glossary, Yerbe Moedtg^fet JtmU Etynriegitam AnglicaDsm*

/fo Term. 8. MkkaeUs, VlVl. 17

eniaUUvhisiddefmtHjpuimctrU^ Liwntf

anignaf nisi de vobmMe vM mt. Hoc antem eontmgebat ^
per Margaretam relictam JohaimiB Vyd senioris^ qiUB petebat r ^g^^^
in hvBtmgB London' tertiam partem calaUomm dicii Tiri iui
per mniltinioda brevia domini regis.

yfW Vyd el Nicb' Bolt vie' eodem aano die lunsa priua ;
ad vineida sancti Petri^accessitHenricaadeBaye juatieiariua
domiiio r^ emiasua^ apud sanctnm Martin* Magntmi^ ad
aiadiend' recorckim qaod dat' fuit per querimoniam Margaretia
Vyel^ die lunsB priua hokeday ann^ precedent]^ nciat ki hoe
rotido prenotator. De quo judicio dicta Margaretaeonqnetfta >
iuit dosniao regi, et iayenerat pkgios ad proband' illti^ ease
fUsmn nnde qiier^. Ibidem coram majore et eivibiie peflecto
illo recordo, ac mnrerala bmlbas domini regig, qu» dicta
Margareta impetiyerat, lectis et anditiS) dixit jmticiarfais :
'' Ego non dica qaod jndicivm istod sit iaianm, sed debflia
^ est processus iU'^ cum nvdla fit mentio in Rcordo Isto de
<< Bummonitione adversariorum dictse Margarets^ et cum Jo-
^^ hannes Vyel vir illius fedt testamentum, non pertinebat ad
^ vestram curiam, tale placitum terminare/' Gives responde-
runty mm fuit necesse ad lUos snmmonend' qui bona defuncti
liabuerint^ cum ipst semper prompti fuer' efferent' se stare ad
rectum diets Margarets^ in curia inostra, et tandem potuimus
illud placitum terminare per assensum dictar' partium nihil
cafammiaatium, et petentium fcHre ecclesiasticum, et sicut do-
minus rex nobis per breve sunm iUud terminare precepit»
Tandem^ multis altercationibus inter justiciar' et cires fiictis,
dixit justiciariusy quod ostenderet ilia omnia domino regi et
condlio suo, et sic recesserunt* Postea, ac solummodo de
causa ilia [C], cepit dominus rex civitatem in manu sua, et
commisit earn per breve suum Will'o de Haverille et Edr'o de [ 19 3
Westm' ad custodiend* salv' in vigil' sci' Bartholomfiei ; unde
major et dves accesserunt ad regem apud Woodstock, osten^
dentes ei quod nihil deliquerant,^ et non potuerunt gratiam
gus impetrare. Quare, in adventu eorum apud London, pre-
^ctuB Will'us de Haverille cepit sacram' de cleric' et de uni-
versis servientibus qui pertinebant ad vicecomites^ ut essent
attendeat' ei, maj(»e et vicecom' balliva sua sic amotis*
Postea^ in die dominica ante festum sancte Mariae receperunt
major et vicecom' in manibus suis per licentiam regpM, et dies

[C3 In the margin of this entry (here is a note, obsenring it to have been usual
Ibr. thai unhappy prince to seise dis litaertissof Om city into hts hands.

1ft

De Term. 8. MickadU, 1727.

Lewin datus est ad respondend' de prasdicto judido coram irq;e

^* et baronibiiB suis in crastino tianslatioiiis sci' Edr'i apud

Lewih- ^^^^,

8^A Oct. .1688. Bohert Handcockj a freeman of London>
died, and an inventory was exhibited of his estate, one moiety
whereof, which otherwise would have belonged to his widow,
was by the custom to be divided amongst his four unadvanced
children ; for that the testator did covenant before his marriage
to leave his wife 1000/. which is made a debt in the inven-

FromtlieCom- to^s &nd allowed out of his whole estate.

BwnSeijcantV 9^^ April^ \7\9. An inventory was taken of the estate of

7%oi?ias Cookj a freeman of Lcndan^ and a moiety of the said
estate divided among the children ; for that the widow was
provided for by articles of agreement before marriage.

2\8t Nov. 1721, An inventory was taken of the estate of
John SUmeyy and the widow's part thereof was by the custom
divided amongst the orphans, the widow being provided for
\by the settlement [D] .

[D] It is to be observed, that qaestions teaching the castom of London will,
for the future, happen less frequently than heretofore ; it being enacted by 1 1
Geo. 1. aq^. 18. << That it shall be lawful for all persons who, after the Ist of
<^ June 1726, shall become free of the city of London, and for all who at that.
^^ time shall be unmarried, and not havejssue by any former marriage, to dispose-
** of their personal estate." Sect 17.

^^ But if any person who sha|l be free of the city hath agreed or shall agree
^^ by writing, in consideration of marriage or otherwise, that his personal estate
^^ shall be distributed according to the custom of the city ; or in case any person
<< so free shall die intestate, his personal estate shall be subject to the castom."
Sect. 18.

Case 6*

CRUSE ET AL\ v. BARLEY AND BANSON.

Sir Joseph William Banson seised in fee of some freehold and also of
some copyhold lands, which he had surrendered to the use of
his will, and being very much indebted by mortgages, bonds,
and simple contract, and having a wife and five children,
(viz.) Christopher y Eriihy Elizabeth^ Maryy ajidT Cecil; by
will dated the l/th of January 1/24, devised all his freehold
Md'thrcT ' «^d copyhold lands to the defendant Barley and his heirs, in
d*T^^hii"*^ trust to sell the same for the best price he could get, and in

lands to be lold to pay his debts ; and as to tbe monies arising by sale after debts paid, he gives
200/. thereout to his eldest son A. at twenty-one, tbe residue to his four younger childrea
equally. A«the eldest dies before tweaty-one, this 200/. shall go to the heir of the testator.

Jektll,

Master of

the Rolls.

2 Eq. Ca. Ab.
543. pi. 15.
One has two

De Term. & Michatlis, 1727.

the first place to pay off all incumbrances upon the premises ^
and also ail his just debts. He deyised also his personal estate
to the same trustee^ in trust to sell to the best advantage^ and
after the testator's debt^ paid, to apply the money arising by
sale of the personal estate, and also the money to be produced
by sale of the real estate, amongst his five children, in manner
thereinafter mentioned, {viz.) to the testator's eldest son
Chrisiopher BanMon^ 200/. which the testator gave him at his
^e of twenty -one; aU the rest and residue thereof to and
amongst his four younger children Erithy Elizabeth, Mary,
and Cecily share and share alike, at their respective ages of
twenty -one, or days of marriage, which should first happen ;
and if any of his four younger children should die before such
age, or marriage, his or her share to go to the survivors.
Tlie testator gave an repress legacy to the said defendant
JBarley, whom he also left sole executor and died. Barley
the exeeutor renounced, and the widow of the testator took
out administration with the will annexed, Christopher Bon-
bon died under twenty-one, without having been ever married.
The debts of the testator were considerable, and the estate
small ; and the bill was brought by the creditors against Cecily
the only surviving son and heir at law of the testator, to prove
the will in equity, and to have a decree for sale of the estate.

Hereupon the only question was, what should become of
the 200/. given by the will to Christopher at his age of twenty-
one ? tt was admitted on all sides, and also by tl^ court, that
this 200/. did never vest in Christopher, it being by the will
given to him tU his age of twenty-one, and not (a) payable
at his age of twenty-one ; so that the age was annexed to the
gtft^ and not (1) to the time of payment ; consequently, it was
not an interest transmissible to the executor or administrator
of the said Christopher.

But then the Master qf the Molls ineHned to think, that it
wonld not go to the younger children ; because only the residue
of the money arising by sale is given to tliem, which seemed
to have excluded the 200/. legacy, so that his present opinion
was, that this 200/. belonged to the heir.

Agadnst wMch it was objected, Jlrst, that by thii^ will all
was made personal estate, and no real estate left to descend;
and therefore in the bequeathing part it is said, that as to the
money to be produced by the sale, Sfc. the testator disposes

Cause
Barley*

[21 ]

(«)ride2Vent
342. Clobery's
case, Swinb.
311.314.
Off. Exec. cap.
19. p. 347.
1 Lev. 277.
Dyer 59 b.
Salk. 415.

(1) Tide Duke of Chandis v. Talboty ante, VoL II. 612.

YOL. Ill,

De Term, S. Mchaelis, 1727.

Cruse

Barley.

[•22]

thereof in manner thereinafter mentioned^ {viz.) 200/. to his
eldest son * Christopher at his age of twenty-one. It is true,"
where an estate is devised to be sold to pay debts, if there be
a surplus, it shall go to the testator's heir at law : forasmuch
as when the debts are paid, the trust is satisfied, and the mo-
tive of the testator for sale of the estate at an end ; and the
heir if he pleases, on laying down the money for the debts/
may take the estate himself : so that in all those cases there
is a resulting trust for the heir. But in the principal case
the surplus of the money arising by sale of the lands, and
also of the personal estate, is by express words given to the
younger children, who in this respect are the hueredes facti;
and the 200/. shall rather fall into the residuuniy and belong
to all the younger children as hceredes facti, than to the only
surviving son. Secondly, For that if Christopher the eldest
son and legatee of this 200/. had died in the life of the testa-
tor, there could have been no doubt but that this had been a
lapsed legacy, and would have fallen into the residuum ; now
in the present case, in regard Christopher the legatee died
before his age of twenty-one, and consequently before the
legacy ever vested in him, it was as if it had been a lapsed
legacy, and within the same reason. Thirdly, Because if
this 200/. should belong and descend to the heir, it would, in
case he should die before the receipt of the money, descend
to his heir, which would give the money a descendible quality
like land. ;

The Master of the Rolls ordered precedents to be looked
into, saying, he would consider of it ; and at length declared
his opinion, that the 200/. should be construed as land, and
descend to the heir; for that it was the same (1) as if so

(1) The several cases on this subject
seem to depend upon this question,
whether the testator meant to give to
the produce of the real estate the qua-
lity of personalty to all intents, or only
80 far as respected the particular pur^
poses of the will : for unless the testator
has sufficiently declared his intention,
not only that the realty shall be con-
verted into personalty for the purposes
of the will, but farther that the produce
of the real estate shall be taken as per-
sonalty^, whether such purposes take
elTect or not, so much of the real estate,
or the produce thereof, as is not effectu-

ally disposed of bj the will at the time
of the testator's death, (whether from
the silence or the inefficacy of the will
itself, or from subsequent lapse,) will
result to the heir. Randall v. Bookey,
Pre. Cha. 1^2. Emblyn v. Freeman,
Pre. Cha. 641. Cruse v. Barley, sup.
Stonehouse v. Evelyn, post. 252. Ar*
nold v. Chapman, 1 Vez. 108. Digby
V. Legard,hefoTe Lord Bathurst, Tirin.
Term, 1774, where E. B, devised her
real and personal estate to trustees, in
trust, to sell, to pay debts and legacies,
and to pay the residue to five persons
to be equally divided between them,

De Term. S. Mchadis, 1727.

much land as was of the value of 200/. was not directed to Cruse
be sold, but suffered to descend. Wherefore the Register was ^ ^'
directed to enter the decree accordingly (1).

share and share alike ; ooe of the resi-
daary legatees died in the lifetime of
the testatrix ; the court at the hearing,
and afterwards upon a rehearing, held
that this was a resulting trast, as to the
share in the real estate of the residuary
legatee who died in the testatrix's life-
time, for the benefit of the heir at law.
Reg. Lib. A. 1773. fol.495. and 1774,
fol. 325. — Akeroid v. Smithson^ before
Lord Thurlow^MarchAih^ 1780. Chrts-
topher HokUworth by will gave several
pecuniary legacies, and then devised all
his real and personal estate to trustees
in trost to sell the same and to convert
the same and e verypart thereof into ready
nioaey, and out of the produce to pay his
debts and the abovementioned legacies,
and to pay the surplus, (if any) unto
the said several legatees in proportion to
their respective legacies. Two of the
legatees died in the lifetime of the tes-
tator : Lord Chancellor approved of the
case of Digby v. Legardy and declared
that the shares in the real estate of the
two residuary legatees who died in the
testator's lifetime, resulted to the heir
at law. Reg. Lib. A. 1779. fol. 668.
and 1 Bro. C. C. 503. S. C. Robinson
▼. Taylor^ 2 Bro. C. C. 589. Spink v.
Levoisj S Bro. C. C. 355.(a?) The only
case which appears inconsistent ivith
these decisions, is that of Ogle v. Cooky

cited 1 Bro. C. C. 501 .(^) In the cases of
Mallabar v. Mallabar, Ca. temp. Tal.
79, and Durour v. Motteux, 1 Vez. 320,
the question was between the heir at law
and the residuary legatee of the per-
sonal estate, (and not the next ofkin^)
and in those cases the court was of opi-
nion, that upon the construction of the
will the real estate was converted into
personalty for all the purposes of the
will including the residuary bequest :(z)
these cases consequently do not decide
the questibn, which would have arisen,
if there had been no residuary disposi-
tion, or if such residuary disposition
had been confined to what was per-
sonalty at the testator's death. — But
notwithstanding that such interest re-
sults to the heir, as being a part of the
produce of the real estate undisposed
of, it may yet he personal estate of the
heir^ and pass as such by a residuary
bequest. Hewitt v. Wright, 1 Bro.
C. C. 90.(tD) Another branch of cases
are those in which the question has
arisen between the real and personal
representatives of devisees under wills
of the nature abovementioned. Vide
Scudamore v. Scudamore, Pre. Cha.
543. Flanagan v. Flanagan, (cited)
1 Bro. C. C. 513. Fletcher v. Ash--
burner, 1 Bro. C. C. 497.(r)

(1) Reg. Lib. A, 1727. fol. 227.

(jr) Yates v. Compton, ante, 2 vol.
308. Chitty v. Parker, 2 Ves. J. 271.
Rwley V. Waterworth, 7 Ves. 425.
WilUams V. Coade, 10 Ves. 500. Ash-^
by V. Palmer, 1 Mer. 296. Smith v.
Claxton, 4 Mad. 484. Walker v. Main,
1 J. and W. 1. Jones v. Mitchell, 1
S. and S. 290. Tregonwell v. Syden-
ham, 3 Dow. 203.

(y) But in Collins v. Wakeman, 2
Ves. J. 686. the Lord Chancellor says,
with reference to the case of Ogle v.
Cook, that he has had the Register's
bodL examined, and it does not stand

in contradiction to the other cases*
(a) Kennell v. Abbott, 4 Ves. 802.

Sheddpn v. Goodrich, 8 Ves. 481.

Brown V. Bigg, 7 Ves. 279. Ripley v.

Waterworth, ub. sup. Wilson v. Mqjor,

11 Ves. 205. Wright v. Wright, 16

Ves. 188. Kellett v. Kellett, 1 Ba. and

Be. 533. Smith v. Claxton, ub. sup.

Jones V. Mitchell, ub. sup.

(w) Wright V. Wright, ub. sup.

Ashby V. Palmer, ub. sup. Smith v.

Claxton, ub. sup.

(jo) See Edwards v. Warwick, ante.

2 vol. 175.

n Be Term. S. HilarU, 1729.

TERM. S. HILARII, 1789.

HORSEY'S CASE.

Case ,7.

Lord Chan-
cellor King. ^^ ^^ j^^^ ^^^^ partners in trade, became bankrupts, and
llo?'pl.%. the joint creditors took out a commission of bankruptcy
v^' 'h 2M^' against them, and the separate creditors of Jl. and B. took
Qaapointcq^i- o^t separate commissions against them respectively. And
tw"pMtnw8^* now the sqpar^ie creditors, though they had sued out sepa-
bankrnpts, the rate commissions, yet petitioned the Lord Chancellor to be
Jp?!l!^^on!^" Emitted upon the joint commission to come in as creditor^
jji^have iSken ,^0 prove tl^e^r debts ; i^isting, that unless they should
eommiMions, prove tiheir 4ebt8 on the joint commission, they could not
liberty to^me Ojppose ^^ Rowing this certificate ; and yet, if A. and B.^
in to oppoj^ the bankrupts, should have their certificates allowed, though
tfie^e^^. 00 ^i^ich joint commission, this would discharge all their

debts, as well separate as joint ; and that it would be a most
unreasonable thing for creditors to be bound by that cert^-
pate wl^ch they had no opportunity of opposing : whereas^
[ ^ ] though they should be suffered to come in as eredttor? te
prove their debts, in order to oppose the allowance of the
certificate, it ncdght still be another question how far they
should be entitled to a satisfaction on the joint commission :
(«) J"- **» and they dted the case of one Steven8,{a) where a petition

of this kind was granted.

On the other side the principal case was sfdd to diffisr from
that of Stevens; because here the separate creditors had
tfifcen ou;t separate coipmiss^ons, which had Qot bee^ f^ope ii^
the case cited, and by their taddng out such commifieions,
had elected to bave their satisfaction out of the separate
estate and effects of each bankrupt; and though it were so
that the persons of the bankrupts BhouU be dischasgeid by
the aUowance of their certifioEite on the joint comnuAsion^
(as it was most reasonaUje they should when they had given
up an they had in the wor]l(},) yet their effects would oo)L jb^e

De Term. & m. 1739, »|

discharged thereby^ but the legal property thereof would be Horvet's
vested and continue vested in the assignees.- ^^^*

Lord Chancellor : — ^It seems that the separate debts will ^JJj^nwB Ire
b^ [A] discharged by the allowance of the certificate on the bankrupu, and
joint commission; and if 80> what remedy * can there then tion b^uken**
be for them ? It is plain that the joint eflfects of A. and B. °"* **v SL
partners^ are liable to tiie debts or banikruptcy of one of the obuin an at-
partners, as to a moiety of these effects : as if uf . and B, are certmcate^thS
jointenants of a term for years, and J, S. has a judgmentt will barn weU
against A. only, yet a moiety of the term may be taken in M^thf^^^t
execution on such judgment* But I am not as yet resolved cwditora.
what to* do in the principal case, which must be adjourned L ^^U'
over, in order to see precedents and what diseotions hay-e
been given in like cases. After which his Lordship (a) or- Onajointwrn*
dered, tiiat the separate creditors should be at liberty to joint ovditon'
oppose the allowance of the certificate: and with regard to "• ^f^ ^^^

** "I- 1 1' 1 coma in on the

their satisfaction/ that the partnership creditors should be partnanhip e^
preferred out of the partnership stock before the separate tbere'romlin a
cre<Utors ; but that, if after all the partnership creditors werfe ^^^' ^^
paid, there should be a surplus, then the separate creditors creditonareui
to come in for a satisfaction thereout, viz. the creditors of ^® •d°»'*^-

i_ ^ i? . . i. 1. t /iv (w)22dApHl|

each out of a moiety of such surplus.(l) I729i>

[A] So on the other hand if there be two partnera, and' one of them becomes
a bankrapt, and on a separate commKssioti' beingi sudd oat against him, his certi-
ficate IB allowed ; this does not odI'^ discharge the bankrupt of what he owed
separately^ but also of what he owed Jointlify and on the partnership account:
because bj the act of parliament, the bankrapt', upon- making a full discovery
and obtaining his certificate?, is to be discharged of all his debts. Now the
debts he owes jointlj with another, are eqnidly hift^ debts as what he owes on his
separate account ;' consequently, he is to be discharged of both his joint and se-
parate debts. And so it has been determined by the Judges of 'B« R. By the ^
Lord Chancellor Parker^ ex parte Yalh^ 3 Jw/jr, mi\{x) /^ U <^f

i«h<«riMa»iAlliM[KKMUih.

(1) Vide Ex parte Cook, ante 2 ^l. Simpsons^ 1 Adc. 138. Ex parte Row

£00. and Mos. 80. S. C. Wiekes t. landson, 'post. 405. Monkey y.Garrattj

Strahan, 2 Stra. 1157. TwissY. Mas- 3 Bro. C. a 4d7.Cy)
sey^ 1 Atk. 67, Sfo. In the matter of

(jr) By the 6 Geo< 4» c. 16. s* 6% dend until the separate- creditors are

joint creditors may prove under sepa* paid in full.

rate commissions for the purpose of (y} See the order in Bankruptcy of

voting in the choice of asidgnees, and March Sth, 1794^ 3 Cooke's B. L. 284.

asseating to or dissoiting bam the cer- and Taylor y* Fields, 4 Yes. 396. 15

iif^fite,, but ate not toreceife a divi-- Yes. 5l59.

26 tidary Vacation, 1729.

HENRY DAVIS v. HENRY GIBBS, Administrator of

Elizabeth Gibbs.

p In Domo Proceram, Hilary Vacation j 1729.

CiuibfaJ.^.' Thb Lady Boreman, being seised of lands in Kent, and
34,35. Fitsgib. possessed of a mortgage for years of the manor of Cran-
One wised of t^oke in JEssex, and of an extended interest upon a statute
Undi in fee in of the manor of Bow Brickhill in Bucks, by her Trill dated

^, and posseff- ^ .

ed of a term for the 20th of March 1C99, in a former clause thereof devised
rUmf ^ his ^ ^^^ manors, messuages, lands, tenements, hereditaments^
lands, tene- and real estate whatsoever in Kent, Essex, Bucks, Bedford'
estate in ^. and shire, or elsewhere within the kingdom of England, of
Ws^^^rt?^ which she was any way seised or entitled* to, unto her ne-
wiii not pass phew Henry Davis the appellant, and to her niece Eliza-
d!Siy™(h1^" beth (the wife of the respondent Gibbs) for their Kves
be another equally, share and share alike ; and after their decease, then
will which dis- the testatrix devised her said real estate to the right heirs of
PCT»ndestote ^^'' ^^^ nephew Henry Davis (the appellant) and of her

said niece Elizabeth Gibbs, equally in equal parts, to hold
to them and their heirs, as tenants in common.

Afterwards, by a latter clause, the testatrix, after several
legacies, gave all the rest, residue, and remainder of her per-
sonal estate, plate, gold, Sfc. and all her mortgages, bonds,
specialties and credits, whatsoever they should consist of,
after her debts and legacies paid, unto her said nephew
Henry Davis and her sedd niece Elizabeth Gibbs, equally
. [ 27 ] . to be dirided between them; and made her nephew and
niece executors, and died. Elizabeth Gibbs died without
^ issue, and her husband the respondent Henry Gibbs was
her administrator, and her brother the said Henry Davis
her heir at law. The testatrix, the Lady Boreman, was
seised in fee of lands in Kent, but had only a chattel inte-
rest in Cranbroke in Essex, and in Bow Brickhill in Bucks.
The question was, whether by this devise Henry Davis,
as brother and heir of his sister Elizabeth Gibbs, was enti-
tled to the said Elizabeth* s moiety of the chattel interests in
the lands in Essex and Bucks, by way of executory devise
(as supposed to be devised to the said Elizabeth Gibbs for
her life, remainder to her heirs,) or whcthei the said moiety.

Hilary, Vacation, 1729. 27

after the death of the said Elizabeth, should go to her hus- Datis
band as her administrator ? And it was decreed (a) by the ^'

Lord Chancellor King, that the same belonged to the re- ^'^'

spondent the husband^ as administrator to his wife^ and not ^^^ ^ '
to her brother the appellant, as heir at law.

On this appeal the first question that was made was, whe*
ther these chattel interests were included in the former de-
vising clause of the will ?

And it was objected, that they passed by the devise of all
the manors, lands, hereditaments and -real estate, which the
testatrix was any way seised of or entitled to, in Kent, Essex,
and Bedfordshire ; for that a term for years is a chattel real
and an estate, and may pass in a will as a real estate. Be-
sides, a will does not require technical or particular terms,
being sitpppsed to be made when the testator is in extremis
et inops cansilii ; and therefore, though the words are never
so improper, yet if the party's meaning can from thence be
picked out, it will be su£Gicient ; and such meaning and in- [ ^ ]
tent will take place, however inaccurately expressed..

That this case waa still the stronger, in that the testatrix
had given all her manors, lands and hereditaments in Kent,
.Essex and Bucks, and she had no fse-umple lands in
Essex and Bucks, nor any other lands therein, but these
chattel interests ; and therefore, as where one. who has no
lands in fee, but is posses&ed of a term for years, devises
all his lands to ji. and his heirs^ the term for years shall
pass :{b) So in the present case, the testatrix having no lands (6) See the
in- Essex and Sticks, but only these terms for years, or •n^c, ante, ^
chattel interests, the same should pass ; and the rather, ^ ^^^- ^^^*
because the fee-simple lands in Kent would not satisfy tl^
devise of the lands in Essex and Bucks y so that it was the
same as if the devises had been several, viz. as if the testa-
trix had devised all her lands in Kent to her nephew and
niece for their lives^ equally, remainder to their heirs. Item,
She devised all her lands in Essex and Bucks to her said
nephew and niece for their lives equally ; and after their
deaths, to their several heirs.

On the other side it was said, that these two several
clauses in the will comprised the several estates of the
testatrix ; one the real, and the other the personal estate ;
that a lease for years could not be called a real estate, as it
goes to executors, and is liable to debts by simple contract;
and the same being personal estate, it would be hard to make

Datis it pass by the testatrix's detise of lier real estate^ eipeoiaSy
p^' where there » a different clause in the will relating to the

dispositicHi of the personal estate, and which by express
words has bequeathed all the testatrix's mortgages and cre-
[ ^^ ] dits ; and when the testatrix had no other mortgage but thai
now in question, and the extendjed interest upon the statute
being a debi, (as is also the niortgage,) these must pass by
the devise of all mortgages and credits : that thk is one
entire clause, by which the testatrix devised all her manors^
lands, tenements, and hereditaments in Kent, Essex, and
Bucks, and is satisfied by passing the fee-simple m Kent;
and if it were an objection that the devise of the lands in
Bucks and Essex would be void, should it not be construed
to pass the leasehold lands in those counties ; 1^ the same
reason the devise (si aU the mortgages would be vdd, if that
did not carry the mortgage of Cranbroke in Esses.

And of this opinion was the liOrd Chancellor upon the
hearing befofe his Lordship.(l)
S^a tSTfo?* As to the other point, it was objected by the counsel for
yeafs deriMd it the aj^Uant, that supposing the chattel interests to be com-
remainder to' prised in the first devising clause, it would follow, that where
the heirs of ^., Q^g possessed of a term for years devises the same to ^. for

It seems this ^ "

•hall, on A.'n life, renuundcr to his heirs, this is an executory devise, and
CT^to^.^nd* *b« 8*°^ as if the devise were to ji. for life, remamdw to
not to his heir, auch person as shall be the heir ef ^., and will operate by

way of deseriptio persenee. It was admitted, if I were to
devise lands of inheritance to A. for life, remainder to his
heirs, or the heirs of his body; these are w^rds of fimitation,
. and ^/s heir, or heic of his body shall take by descent : but
in ihe case of a term for years it is imposnMe the heir
should take by descent; nevertheless a term may h^ proper
words be limited to A. for life, remamder to the heirs of the
body, or to the heir general of A., after ^/s death; in which
case A. shall in the mean time take the profits of the pre-
mises for his life.
[ 30 ] That as this was agreeable to the reason of the thmg, so

there was the greatest authority for it, even Ae authority of
that House; for which was cited the case of Peaeoci v.
295.^ ^*™' *^' *S5poon€r,(a) where one was possessed rf a term for years,

(1) Vide Jddis v» Clement^ ante, Vol* II. p. 44&(«)

(;k) And see Woodhomc v. Merediihy 1 Men 457.

Haary Vacatim, 17!». SO

and en his son's marriage as^;ned orer tbe term In trast for Dayis
his son and his then intended wife for their Hres^ and after- ^'

waarda in tniat for tbe heirs of the body of the son's wife by
the son. The son had issne three daughters^ and died ; and
the wife baring administered to her husband^ married again^
and with her second husband assigned over the term. In
tins case the determination of the Lord Chancellor Jefferyn
was, that, the trust of the whcfe term vested in the wife, and
must go to her executors or administrators : but ttis decree
was reversed by the Lords Commissioners, and such decree
ai reversal afhmeftin the House o/Z/ords. That conform-
able to this last determination was the decree in the case of
Dqffbrfte v. Goodman et oT (b) made by the Lord Sommers, (&} 2 Veni.362.
who declared, he thought himself bound by the authority of
the case of Peacock v. Spooner, and that it wouM be of
dangerous consequence to* vary from a case so soltomly ad-
judged, and render the rule of property wholly uncertain
and precarious, since, at that rate none would know how to
give an opinion.

To which it was answered, that where a devise of a term
ftF years is to ji. for life, remainder after udf/s death to the
heirs of A. both by the reason of the thing, also agreeably
to the precedents in point, this remainder ought to go to the
executors of ji. and not to the heir at lieiw. That it wouM
be moist piran, if one should deviise a term for- years to j1.
and Ms heirs, this must, after A.% dSeath, go* to his exe- [ ^1 ]
cutor, and not to his heir. So if the dbvise were to A,^ and
slUsr his death to his heirs ; that it must be the same if the
devise were to- A. far life, and after the death of A. then to
the heirs of A. The reason U, for that the Ijeiw says, whelre
a temk for yesrs is given to any one, it shaH, after the deatii
of the grantee, goto his executors, and not to his heir ^ and
where the limitation is made to the heUr, this is thwartihg
and contending with the law^ and therefotle void. And
though it shotdd be adhliieted that where a term is' devised
to ^ for life, and after hifr deatfe to tte heir of the bocfy of
A, (in the singularauniAer) suchdbviise would be good, and
take eAReot by way of dtseripHo personar^ as in Archer^s
caM(a)'«; yet^when the litaiitatibn is ih tfie plund number, (a) l Co. 66 b.
and not so much as to the heirs of the body but to the heirs
of Ai in generalf (so remote as that tte -person who may be
bar* cannot possibly be witjiin the view of any one) should
tiiis be construed a good limitation^ it could no way be

31 Hilary Vacatian, 1729.

^^^'* barred by grant, or fine sur concesgit; for if good, it must

P^' be supported by way of executory devise*

As to the authority of Peacock and Spooner, the same
was allowed to be good, it having been looked upon as a
hardship for a woman with an after-taken husband to bar
that provi^n which was made on the first marriage for the
issue thereof; and therefore it was held that such a provision
made by the husband, though out of a term for years, was

(b) See 1 ToL within the equity of the statute(&} of 11 Hen. 7., and that
134 and 370. ^^ ^jf^ coxxlii not in such case bar the issue, (t. e. where

the limitation of the trust of the term is to the husband and
wife for their lives, remainder to the heirs of the body of
the wife by the husband,) and yet even this opinion pre-
[ 32 ] vailed with difficulty, and by a pretty strained construction,
a refined reason to help a compassionate case, insomuch that
if that very case were put of voluntary settlement made after
marriage, the same would hardly come veithin that resolu-
tion ; and a devise is but a voluntary conveyance, though
the most favoured of the kind. Or, if the limitation of the
trust of the term or the devise had been to the husband for
life, remainder to the wife for life, remainder to the heirs of
the body of the husband and xotfe, here the construction
would have been different, which was the case of Webb v.

precedents and on time taken to consider of it* Where a
term was assigned to trustees in trust for the husband for
life, remainder to the wife for life, remainder in trust for the
heirs of their two bodies, and the husband made an assign-
ment of the term ; this was decreed to be good, and to bar
the heirs of the body of the husband and wife, and that the
whole trust of the term, subject to the wife's estate, vested
in the husband. And this being the last precedent, and in-
finitely stronger than the principal case, it would be dan-
gerous to vary therefrom, especially since here the term is
devised to A, for life, remainder to his heirs at large, who
might be remote, never known, seen, or heard of by the
tenant for life, nor by the testator, and consequently who
could not be supposed to be within his view or contempla-
tion ; and such a devise was never attempted to be made
good.

In the last place, the counsel for the respondent strongly
insisted on the very great delays that had been made use of
by the appellant in this case ; and that though the cause had

Hilary Vacation, 1729. 32

been four timea heard in Chancery, yet this last point had Datis
not been started till now. Wherefore it was prayed that the n ,-'—
termer decree should be affirmed, and the appeal dismissed ; [ 33 ]
which was accordingly done, with 200/. costs. (1)
I was of counsel with the respondent.

(1) Vide Wehb^. fVebby ante, VoL I. p. 134,

JONES V. GOODCHILD.

Case 0«

A MOTHER of a bastard child by her will gave all her per- i^^d Chan-
sonal estate to the child, and made JB. and C. her executors, cellor Kino.
in order to take care of her child and to do it justice. The 2 Eq. Ca. Ab.
mother died ; and within a short time after the bastard died ]25! pi. le!
intestate, without wife or issue. One of the executors OoehaWnga
brought this bill against the .nother of her that was the •^nonaicl^
mother of the bastard, and who had in her hands the portion ***«'«>«•"«-

, ' * cntor in trost

Delongmg to the bastard, praying an account of the same. for the bastard,

wbo dies intes-
tate, and without wife or issue. The executor brings a bill against one wbo has part of his
personal estate in his hands. The defendant demurs, because the Attorney Geneni and the
administrator of the bastard are not parties ; demurrer disallowed, for that the executor has
the legal title, and consequently may sue for the estate.

The defendant, the mother of the bastard's mother, de- A bastard dies
murred for want of proper parties ; in regard the adminis- out wife or is-*
trator of the bastard, and likewise the Attorney General in JJentlticd^a"^
right of the Crown, ought to have been brought before the the ordinary of
Court: for that it was plain the Crown was entitled to the[B] adSIS5S!tSn
personal estate of a bastard dying intestate without wife or ^ the patentee
issue, consequently without any relation; and since the King the Crowe.
might give the personal estate of such bastard to any other
person, and the course being for the ordinary to grant ad- [ 34 J

[B] The reporter has subjoined the following query. A church lease for
three lives is granted to a bastard and his heirs, who dies without issue and in-
testate : what shall become of this lease ? — shall it go to the administrator of the
bastard, or to the Crown ? or does the limitation to the heirs make any differ-
ence ? or is it ceuus omissus out of the act of frauds and perjuries, and so re-
mains liable to occupancy at common law ? or, lastly, is the lessor entitled, the
lease being determined ; for that the premises being granted to the lessee and
his heirs during three lives, and the lessee being dead without heir, the lessor
may re-enter, in the same manner as where a grant is to a man and the heirs of
his body for three lives, (in which case the heirs of the body take as special
occupants,) remainder over, and the grantee dies without issue during the three
lives ; the remainderman sludi take. See post, Low v. Burron, 302.

S4 Haary Vaeation, tl^.

Jones ministration to 8ach(a) patentee of the Crown ; the defend^
• ^* ant would be liable to account over again to such patentee

' for the personal estate of the bastard^ and by that means be
Mannings. ' put to double expense and vexation.

^*PP- Lard Chancellor .—The executor of the bastard's mother

is legally entitled to the personal estate of his testatrix ; and
though this may be in trust for the bastardy yet aB the exe-
cutor has the legal title^ he can give a good discharge to the
defendant, therefore over-rule the demurrer.

Note. In the like case an executor, though a bare trustee^
and though there be a residuary legatee, is entitled to sue
for the personal estate in equity as well as law, unless the
oeskii que irwt will oppose it.

HODSON (of the Six Clerks' Office) t;. EARL OF WAIU

RINGTON.
Case 10»

Lord Chan- At the hearing of this cause it appeared liiat the defendant
cellor King, j^j^^j examined a witness to prove a deed executed by him t»
2Eq. Ca» Ab. j^ brother, to whom he was adminiBtratop, and claimed* to
The defend- *be a creditor by judgment, which judgment was said to be
sroyeTa deed, discharged by the deed so proved in the cause, the said deed
•o^refera to it being alleged to- amount to a release; in consequence whereof
ti<m;t]ie plain- there wQuld be assets to pay the debt due fipom the intestate
i^1[ thS'defelSr ^ ^^ plaintiflfe. And now^ the question was, whether the
ant to produce plaintiff could compel the defendant to produce thia deed ?

the deed at the

heaiingy the refsfence thereto aot making it part of the deposition.

[ *S5 ] It was urged for the plaintiff that he might ; for the de*

fiendant having proved it, and the witness having referred
thereto by bis deposition, the same was now become part of
the deposition itself, and in the possession of the Court ^ and
as the plaintiff could read any part of the disposition taken
for the defendant, by the same reason he might insist on
having the deed produced ; and that the Master of the Rolls
had made many orders to the like purpose.

To which it was answered, it was true the Master of the
Rolls had made many such orders, but then it was aa true,
that whenever these came before the Lord CAoHceUor,, they

mUay VacaiioA, 1729. 35

were as constantly set aside ; that a deed was not part of the Hodson

deposition unless mentioned therein in hcec verba; and that, _, ^* ^

as to the deed the defendant had proved, it remained at his Wjirring-

election whether he would make use of it or not ; that ac- ton.

cordingly it was so ruled in the case of Calmady v. Cal^

moAf^ where the Court would not oblige the defendant to [ 36 ]

produce a deed which he had proveid.

- The Lord Chancellor held this to be the course of the

Court, and therefore would make no order for the defend*

ant's producing the deed.(l)

In the same case it also appeared that the plaintiff had I^^ju^^ent
recovered judgment in tiie petty bag ; after which the de- "» t*« petty
fendant brought a bill, and had stopped the plaintiff two or heU^BtJnped
three years by an injunction : so that the plaintiff in the ^ •" iajunc-
judgment could not regularly sue out execution without a The yetr and
scire facias. Wherefore it was moved, that the plaintiff at p2JS?tL»trfi
law mighty imder ^ese circiunstances, sue out executioa hindered by de
without a scire facias, and not suffer by the act of the cumot Biie4rai

Court. MccttdoawWi.

out ft sisL fil. '

Sedper -Cur ;— I cannot alter the course of the Court,
but mu^t take caie to preserve it ; and it being above a year
and a day after the judgment, let the plaintiff sue out his
scire facias.[C] (x)

^C] Q. Whether in thU case <he pldintiff Hcdtom eadii not faave taken out
ezecntioii, loid cooltipved k by Vieeoomfss non misif brevfiy agrefeaUj to what
was said by the Court of JB. JR. in the case of Booth and Booths Salk. 39^

(1) yid(^ Daofirs v. Daoersy 9Ute, % vol. 410*

(si) This has nnce Jieea aUei^ed; s^e 2 Williams's Saundars, 72 c (5th ed.)
MicheU V* Cue^ 2 Burr. 660. ; and note to Underhill v. Devereux.

37 De Term. S. Trin. 1729

TERM. S. TRINITATIS, 1729.

11. NEWSOME V. BOWYER.

iMd Chan* ^ HOSBAND (one Dawson) wa8 attainted of felony for ras-
2 Eo Ca. Ab ^°^ ^"^ altenng a bank bill, and afterwards pardoned, upon

270. pL 28. condition he should within months transport himself

^,„^ WM u^ ^^^ ^' ^^ Majesty's dominions of Great Britain and /re-
taiotcd of fclcH /am/, and continue in exile during his life. After the par-
ed on condition don, upon the death of the wife's father, (who was a free-
^^^^^f*^^ man of London) a share of the orphanage part came to the
tenrards the wife of the person attdnted ; and it was admitted, that the
eotiUeTto^ orphanage part coming to the wife after the pardon of the
some penonai husband, and after such time as he had transported himself,
pluin to a free- was not forfeited. But then it was objected, that the same
SSr^fiSSii"' <^™"*S to ^^ wife after the pardon of the husband, did be-
caute decreed long to the husband, who by the pardon was become capable
t'^^'Jl, oftaldng.

a feme lole. On the other side it was insisted, that this was just as if

the husband had been banished by act of parliament, or had

[ 58 ] abjured the realm ; like the case of Judge Belknap, or that

of Thomas de Waylandy 1 Inst. 133., where it is said that

the wife of one banished for life may sue as a feme sole : the

same of the wife of one who has abjured the realm, it being

a civil death ; and that this was to be compared to abjura-v

tion, which is a voluntary act of the party, and in which

case the law formerly was, that one who had committed

felony and fled to a church or sanctuary, provided he should

voluntarily abjure the realm, was not punishable with death.

And the case in 2 Vem. 104., Countess of Portland v.

(a) See alio Prodgers was cited, where it is determined that the wife of

Deariyifbttch. ^ husband banished for life may make a will, and act in all

o( Maxarine. things as a feme sole.(a) [A]

[A] A feme covert, having a separate estate, may in a coart of equity be sued

De Term. S. Trin. 1729. 38

The Lord Chancellor seemed to hesitate somewhat in his Nevsome
opinion^ but expressed an inclination to assist the wife ; ne- ^'

vertheless he thought this was no banishment, which can-
not be but by act of {b) parliament ; neither could it, as he (&) i inst 133.
apprehended, be resembled to abjuration. [B] However his
Lordship ordered it to come on again, and the matter to be [ 39 ]
stated in a petition by way of ca8e.[C]

as a feme sole, and proceeded against without her husband (x) ; for in respect of
her separate estate, she is looked upon as a feme sole, 2 Vem, 614. (^) And
ID a court of equity (though nqt in law) baron and feme are considered as two
different persons ; and therefore a wife by her prochein amy may sue her own
hasband, Precedents in Ckancerif^ 24. 2 Vem. 403., and in the case of BeU y.
Commissary Hyde^s fVife^ upon affidavit that she had a separate estate, a sub-
poena served upon her to appear and answer for such time as her husband was
gone to Holland^ and in the Queen's service, was by the Lord Keeper Har^
courts after advising with Sir John Trevor, Master of the Rolls, ruled good ;
and the wife in that case prayed, and had time to answer. Last Seal after IliL
Term, 1711.

[B] As so little occurs in the modem books concerning abjuration, it is pre-
sumed the following account of it will not be unacceptable to the reader : —

By the ancient common law of England, if a man committed any felony, ex-
cepting sacrilege, and fled to a parish church, he might within forty days before
the coroner confess the felony, and take an oath to abjure the kingdom for ever;
and if he thus confessed and took the oath, he was thereby attainted of the
felony, and then he had forty days from the coming of the coroner to provide
and prepare for his voyage ; and the coroner assigned to him such a port as he
chose for his departure out of the kingdom ; and if he did not go straightway
oat of the kingdom, or being gone out, did return without licence, he had judg-
ment to be hanged, except he was a clerk, and then he had his clergy. This
practice was what the law called abjuration ; and being by sieveral regulations
(in the time of Hen, 8.) in effect taken away, the revival thereof was by the
35 Eliz, cap. 1« sect, 2. thought to be a wholesome severity, fit to be inflicted on
the Protestant Dissenters of those times ; but the Toleration act, (1 fV. Sf M*
Stat, 1 cap. 18. sect. 4.) does expressly, and by name, exempt the Protestant'
Dissenters from the penalties of the 35 Eiiz* See Sir Peter King's speech iu'
maintenance of the second article of impeachment at Dr. SackevereWs trial,
State Trials, Vol. V. p. 693.

[C] It appears from the Register's book^ that on the 18th of March 1729-30,
the sui^ of £599. 17 s. 7d. was ordered to be laid out on government securities'
with the approbation of the* Master ; and that the interest and produce thereof,
and likewise the arrears of the dividends on 500/. S. S. annuities, .and the future
dividends should be paid to the wife for her maintenance, until further order of
the Court ; and that afterwards the wife, on the husband's dying, married
again ; and on the petition of the second husband and wife, heard 20th Oct,
1731, it was ordered, that the trustees in the freeman's will should transfer the
500/. S, S. annuities, and also pay the J^599. I7s. 7d. and the dividends, to the
second husband.

(x) And where 'relief is sought also served, Jones v. Harris^ 9 Yes.

against the separate estate of the wife, 488.

service of process on the husband alone (t/) See Powell v. Hankeify ante^

it not sufficient^ but the wife must be 2 vol. 85.

98 .BHary Vacation, ]7d».

Datis it pass by ibe testatrix's derise of her real estate^ eqpecuAy
Q^^ where there is a cHfferent clause in the will relating to the
dispontion of the personal estate^ and which by express
words has bequeathed all the testatrix's mortgages and ere-
L ^^ J dits; and when the testatrix had no other mortgage but that
now in question^ and the extendi interest upon the statute
being a debiy (as is also the mortgage^) these muM pass by
the devise of all mortgages and credits : that this is one
entire clause^ by which the testatrix devised all her manors,
lands, tenements, and hereditaments in Kent, Esses, and
BucUs^ and is satisfied by passing the fee-simple in Kent;
and if it were an objection that the devise of the lands in
Sucks and JEssej^ would be void, should it not be construed
to pass the leasehold lands in those counties ; by the same
reason the devise ot all the mortgages would be void, if that
did not carry the mortgage of Cranbroke in Esses.

And of this opinion was the lx>rd Chancellor upon the
hearuig befiwe his LordBhip.(l)
^a tSTfo^ As to the other point, it was objected by the counsel for
ycirfsdevijedit the appellant, that supposing the chattel interests to be com-

to^. for life, • \ • .-» n ^ X • • 1 - ,,--

remainder to pnsed m the first devismg clause, it would follow, that witere
u le^c'i^tMi'*' ^"® possessed of a term for years devkes the same to -rf. for
ahau, on ^/s life, remainder to his heirs, this is an executory devise, and
cxwiito?,1ln" *« same as if the devise were to A. for life, remamder to
not to his heir, mch person as shall he the heir of ^., and will operate by

way of descriptio persona. It was admitted, if I were to
devise lands of inheritance to A^ for life, remahtder to his
heirs, or the heirs of his body 5 these are words of limitation,
and A:^ heir, or heu: of his body shall take by descent : but
in the case of a term for yea/r» it is impossible the heir
should take by descent j nevertheless a term may by proper
ioordshe limited to A. for life, remainder to the heirs of the
body, or to the heir general of A., after A.'s death ; in which
case A. shall in the mean time take the profits of the pre-
mises for his life.

[ SO ] That as this was agreeable to the reason of the thing, so

there was the greatest authority for it, even Ae authority of

that House; for which was cited the case of Peacock v.

W2Vem.43, Spomery{a) where one was possessed rf a term for yeare,

■

(1) Vide Jddis v- Clement^ ante, Vol. II. p. 44(Ji(«)

wmmammmmmmSSSSSOSSSSSSSSSSSSSSSSSm

(j:) And see Woodhome v. Mersdithy I Mer. 457.

Haary Vacation, 1789. 30

and en his son's marriage ass^ed orer tbe term In trust for Datis
his son and his then intended wife for their Mres. and after- _, ^*

G XBBS

WMds in trust for the heirs of the body of tite son's wife by
the son. The son had issue three daughters^ and died ; and
the wife faaTing administered to her husband^ married again^
and with her seeond husband assigned over the term. In
this case the determination of the Lord Chancdlor Jefferys
was, that the tnist of the whole term vested in the wife, and
must go to her executors or administrators : but tiiis decree
was reversed by the Lords Commissioners, and such decree
<rf reversal afirmettm the House of Lords. That conform-
able to this last determination was the decree in the case of
Iksffbme v. Goodman ei oT (b) made by the Lord Sommers, W 2 Veni.362.
who declared* he thought himself bound by tile authority of
the case of Peacock v. f^ooner, and that it woidd be of
dangerous consequence to vary from a case so soltomly^ ad-
judged. Mid render the rule of property wholly uncertain
and precarious, since at fhat rate none would know how to
give an opinion.

To which it was answered, that where- a devise of & term
for years is to u^. for ISe, remainder after ^/s death to the
heirs of jt. both by the reason of the thing, also agreeably
to the precedents in point, this remainder ought to go to the
executors of ji. and not to tihe heir at lieiw. That it would
be moist pbun, if one should devise a term for years to ^.
and his heirs, this must, after ^/s <foath> go- to- his exe- [ 31 ]
cuter, and not to his heir. So if the dbvise were to ji., and
dtber his death- to his heirs ; that it must be the same if the
devise were to- A. for life, and' after the death of ji. then to
the heirs of jf. The reason is^ for that l!he Vbsw says, where
a teni» for years is ^ven to any one, it shaH, after the deadi
of the grantee, go- to his executors, and- not to his heir ; and
where the Smitation is made to the heilr, this is thwartibg
and contending with^ the law, and therefor void. And
though it should- be aAliillied that where a term is' devised
to ^ for life, and^ after hii» de^A to tte heii* oFthe body of
A. (in the singularaui^er) such-dfevdise widuld be good, and
take elfect by way of deseripHo persoruey as in Archer^s
«»e(a)'^; yet when the liboitation is in the plural number, (a) i Co. 66 b.
and not so much as to the heirs of the body but to the heirs
of Ak in general, (so remote as that tiie person miio may be
heir- cannot possibly be within the view of anyone) should
tills be construed a good limitation^ it could no way be

1^ . De Term. S. Trin. 1780.

Dateas legacy by bis codidl to one wbo afterwarda died ia Mb (the
*• testator's) life-time; which yet would not Wndet it from

Dewes. ^.^g jjjjjj ^.^g bequest of the tesiduum : that it would be
hard to maintain, that the testator, the Lord Dover, who
had made a will, and talcen so much caws in his ^positions,
Dtight to be construed to die intestate, aa to any part of his

personal estate. • _ ^

But the Lord Chancellor waa of opinion, that these goods
end furniture in Cheevefy house, and the surplus of the plate
beyond the 8000 ounces, were undisposed of by the will, and
should go to the next of kin according to the statute of dia-
tributibn ; that it was phiin the testator did not intend they
[ 43 ] »houM pass by the will, bat reserved them to be disposed of
by a subsequent codlcQ j and If it were admitted, tiiat the
Lotd Dover did not intend to dispose of them by the wiU, hw
Lady as residuary legatee couM not thereby be entitled to
them t because the devise of the surplus, as penned, was very
etrong against her^ giving her the residue of the personal
estate not thereby otherwise disposed of or reserved to be
^sposedofby^ihecodidl. Now the goods in question were
reserved to be disposed of by the codkal, imd Aerrfore could
not paas by flie devise of tiie residuum by the will.(l)

Seeondfy, It was contended on behalf of Mr. FoUees the
orfy surviving executor that he was entitled to these things
«s ekecutor ; for that, thoi^h there was an express Iq^acy to
ImA, there was the like also to the next of kin j and then the
«KeCHt6r) Of tntk, bas a genend right at law to tf 4Sie tes-
tator's p«reonal estate not given from him by the wffl.
menanexe- Stdftiir Vwr. Mr. fWftcs the executor haviiqf an express
cntor bu an iegacy <>f 300/. given him for his trouble, and the rest of tiie
tof^^'' ^pendOfA estate being disposed of, or at least mtended to be
^ P^ dk^MMed of by the codidl, Mr. FcrfAe* is plainly to be consi-
nextofkinlua 4ered %ut fis Ml executor in trust. (S)

also an ezprcfs

legacy yet the tut^tOM Aall go according to the statute of distribntion; ecpecially if the anr-

plui waa intended to Ik dtafOMd of.

• •

(1) In Jtte^^'Greheral ▼• Johm* (2) So, 4ndrefiD ▼. Clark, 9, Ves.

$toney Amb. 577. the paKicuIar words 162* caoir^AUorney^Generaiy.Hook'^
of the will prevented the lapsed lega- er, ante, % toI. 338. Et vide Far-
cies from falling into tihe re8idae.(jc) rtn^on v. Knightletf, ante, 1 vol. 544.

(«) BUmi ^« Lmby 3 Jnc. k W. M9.

De Term. & Trin. 173Q. 4S

Timi it vaa uisieted, that the wife of the Lord JOaver, Davsm
though a Papiat, was capable <^ taking a leaaehoU estate by ^*
deiiae ; for whkh purpose the statute of the 11 and 12 W. 3. *^*^""'
c. 4. 8. 4. was mentioned, whetthj it is provided, ^' that
*^ from and after the 29th of September, 170D, if any person [ 44 ]
'^ educated in the Popish religion, or professing the same,
*' shall not, Tiithin six: months alter he or they shall attain
<« tibe age of eighteen, take the oaths of all^^nce and sn-
^* premacy, and conform, &c." as by the act is required,
^< every sudi person shall, in respect of him or herself only,
^ and not to or in reject of any of his or her heirs or pos-
'' terity, be disabled, or made ina^id>le to inlierit or take by
^< descent, devise, or limitation, in possession, reversion or
** remainder, any lands, tenements, or hereditaments, &c
^^ And that during the life of such person, and until he or
^ she shall take the oaths, and conform, &c. the next of his
^^ or her kindred, which shall be a Protestant, sha^ have and
^' enjoy the said lands, tenements, and hereditaments, without
*' facing accountable for the profits by him or her received
^ during such enjoyment, but in case of any wilful waste
^' coMimitted on the said lands, &c. by such '^>erBons so en-
^ joying, the party disabled, his her or their executors or
^ administrators, shall recover treble damages for tihe same
f^ against the person committing the same, his or her exe*
^' cutors or administrators, by action of debt/'

How as to this ; the Lady Dover being above the age of
ei^teen years and six months at the time of passing the act,
and at the deatji of her husband, the testator, the Lord Dover,
ahe was said to be perfectly out of the said clause, because it
was impossible for her to take the oaths, and conform pur*
anant thereto, she being shove the age of eighteen and eight
months before the act was made ; and it was represented, as
not 19cely to be of any mischievou3 consequence to construe
the lAdy Dover out at the act, as being ei^teen years and
■eif^ sionths <Ad when the same passed ; forasmuch as there
are very few aow living, and shortly will be none living, who
were of that age at the time of the passing the act, (viz.) in
1700. And widx regard to the following words, which are
pvt ai tixe same paragmjdi, ^ that from and after the 10th [ 45 ]
'^ day of April y 1700, every Papist, or person nuddng profes*
<< .aion of the Popish religion, shall be disabled, and is -hereby
'^ made incapiUe %o purchase, either in his or her name, or in ..

]>2

45 De Term. & Trin. 1790.

Datebs '^ the name ot anjr other person or persons^ to his or her dse^
^* '* or in trust for him or her, any manors, lands, profits out di

'^ land, tenements, rents, terms or hereditaments in Engkmd
^^ or TFaleSy &c. And all and singular estates, terms, and
'^ any other interests or profits whatsoever out of the land,
^' from and after the said 10th of Aprils to be made suffered
^* or done to or for the use or behoof of any such person or
" persons, or upon any trust or confidence mediately or im-
** mediately, to or for the benefit or relief of any such person
*^ or persons shall be utterly void, and of none effect to all
" intents, constructions, and purposes whatsoever." With
respect to this clause it was argued, that though the words
may seem general, and to take in all Papists of what age
soever, yet they disable such as take by purchase only ; and
the word devise being left out of this part of the clause, and
inserted in the former part, shews it to have been- the intent
of the act, that this latter should not extend to a devise, but
to a purchase only, where the party Papist contracts for an
estate, which by this clause he is disabled to do : and taking
the latter clause to extend to a devise as well as the former,
the act is inconsistent ; for that by the latter part of the
paragraph no person whatsoever that is a Papist, though of
any age, can take ; whereas by the former part an inlknt
under the age of eighteen and a half may take, if such infant
shall duly conform.
[ 46 ] To which the Lord Chancellor replied, that if this were

noftSe r"' ^^ iniegra, it would be indeed very questionable, but that
freehold or the point had been settled in the case of Roper saxd'Sad^
totrby wiU," ^^fff^ii^) ^° ^he House of Lords, after so solemn a debate, as
becansetoking ought to render it conclusive to all the courts at fTesimin^
ing by pur- *^^i that accordingly several subsequent resolutions (a) had
the wlnS? ^^ ^^^ °^^® pursuant thereto, and therefore to recede from
words of the this would create great confusion and uncertainty, the con-
ijTw^a. c. 4. sequence o{ which was, that the word puT^Ao^e must, accord-
* P»pw**» diB- ing to the above resolution, be understood of taking an estate
by purchase, hy purchase ; and he who takes by devise does in construe-
yl^mll^^ tion of law take by purchase. And the words terms for
presaiy men- years being particularly mentioned in this clause, and the
taoDed^in the j^^^^j. ^^^^^ thereof being express, that all such estates

(a) Vide HiU r. FUMn, ante, 2 toU 6.

(1) 1 Bro. P. a 450. fi Mod. 167, 181. 10 Mod. 9SQ.

De Term. S. Trin. 1790. 46

tennB and [A] interests so made^ shall be void ; his Lord- Dateu
ship was of opinion, that the Lady Dovevy being a Papist, ^*

was not capable of taking these leasehold estates by virtue of
her husband the Lord Dover* s will ; observing withal, that
the case of Roper and Radcliffe was very strong, even much
stronger than the present; in regard that was not of a devise
of land, or of a trust of land, to a Papist; but a devise only
that the land should be sold for payment of debts and lega-
cies, and the surplus paid to a Papist ; which was notwith-
standing resolved to be a profit out of land ; and as the de-*
visee of the surplus might in equity, on paying the debts^
&c. elect to take the land, ai|d prevent the sale, therefore it [ 47 ]
was held to be within the act.

Whereupon it was urged, that supposing the devise of
these leasehold estates to the Lady Dover was void, she
being a Papist; then the consequence ^ would be, that they
must go according to the statute of distribution, which gives
the wife half, where there are no children, as in the present
case.

But here it was insisted by the other side, that as the wife^
being a Papist, could not take by a will^ so neither could she
be entitled by the statute of distribution, which is a will
made by the Legislature for such as have made none for
themselves ; and it would be putting it in the power of the
Papist to elude the act by saying, " I know I cannot give my
^^ leasehold estate to my wife or child that are Papists ; but I
" will die intestate, at least as to such leasehold estate i*
and then the act of Parliament will give it to them, though
they be Papists. Besides, there are remarkable words in the
act made to prevent the growth of Popery, in the clause
aforesaid, which says, *' that all estates, terms, or interests
*^ made done or suffered^ to or to the use of a Papist, shall
'^ be void.'' Now dying intestate is suffering the estate, for
want of a will, to go to a Papist. Also the intent of the act
was^ that the Papists should not be capable of taking any
interest in leasehold or freehold estates, whereby they might
be enabled to prejudice the government ; and whether such
Papist has the estate either through the gift of the ancestor
by his making a will, or by his dying intestate, it will be

[A] For this reason it has been determined, that where a judgment was given
to a Papist, he could not extend the land ; for that woald give him an interest ia
the land ; and it is the same thing, where the judgment is given in trust for a
Papist By Lord Parkery Lowlher v. Fletcher^ HiL 1719.

47 ifc TWw. IS. Trin. ItSO-

BlTEks eqadlly within the nuschief btended to be t>Tevexited by the
^ ^* act] and though this might seetn an hardship, it tTiis no tnDre

still than what the act designed, (viz.) to pat hardshipii
upon Papists, iii order to their conformity.
[ 48 ] On the contrary it was argued, that though the act did

intend to put hardships on Papists, yet it was only such
hardships as the words and plain meaning thereof necessarily
imported ; that whether a F^plst was disabled to tate by the
statute of distributioh, was a question nerer yet determined $
that the term [B] suffered, oH which so much stress had beeii
laid, was plainly thrown into the act to a word of cdulte^
and applicable to siich conveyances as should thereafter be
made to the use of, or in trust for, a Papist, hy fjD&y ofeoftk^
mtm recoveify; but that supposing the word suffered was to
be taken in the largest extent, then a descent Would be Within
the clause^ and so no lands could descend to a Papist of above
the age of eighteen years and six mohths ; for when lands
come by descent to an heir, it is what the ancestor suffer^ to
happen for want of a will : that by such construction all the
freehold and leasehold estates that should ever come io
Ripists would be effectually disposed of; the former, to tiie
lord by Way of escheat, and the latter to the Crown, for Wtoul
c^ to owner. Lastly, that this Was a jpenal law> and hot to
be extended by any liberal construction.
A Papist^ tf ijyrd Chancellor : 1 do riot know that this poitafc wto ever

above eighteen . , j ^ _ ^*^

and a half, u m judgment : but I am of opinion that a Papist may take

uSSSJ^Unda ^*Wn the statute of distribution. I must recur to the dte-

hjr dercent ; abling ckuse in the latter end of the statute of the 1 1 and 12

ai^ takV*a* W. 3. made to prevent the growth of Popery, Which s^ys^

K'Srtutat? ** *^** ^^ Papist shall purchase any manors, latids, or terms,

ofdiftribution. ^' &c." Now a purchase must be by the act of the party in

[ ^^ J the way of grant or conveyance, or at least by a will ; but in

the case of 6ne dying intestate, it is the oc^ of the taw; \C] it

is the Legislature that gives these distributory shares to the

iMdow and next of kin ; it is a succession ab intestatd to a

personal estaite, similar to a descent of land, where ah heir,

though a Papist, (ai^ here) if above the age of eighteen and

sTx months, may inherit. Beside^, the intent of the statute

of distribiition was, that the administrator should sell all the

[B] TUi expression, and indeed the whole paragraph, is tdmost'wof^ for wdrd
frbiti 1 Jh6. 1. c. 4. s. 6*

' IC] By the same reason it shonld Seem, that a Papist is capable of taking «s
tenant bj the curtesyyor in dowen

De Term. S. Ttin. 1730. 49

personal estate of the intestate^ turn it into money, and dis^ DiTisf
tribute it; now it would be inconsistent, that the Papist v*
should have a share of the money l^/l^ by the intestate, but D^wbs.
not of the money raised by the administrator out of the in-
testate's estates.

In the next place it was admitted on sll sides^ and decreed,
that as to all personal things, and in particular the goods and
furniture at Cheevefy^ and the surplus of the plate above the
5000 ounces, the Lady Dover the widow was entitled to a
moiety thereof by the statute of distribution.

The hst question was, whether the i^rsoaal estate whkh
the Lord Dover had left undisposed of by his will, should be
distributed per stirpes, or per capita f The Lord Dover
having left only nephews and nieces, {viz.) one nephew by
his brother, and three nephews and two nieces by a sister.-—
Whereupon it was objected, that were this the case of
grand-nephews, and grand-nieces that were next of kin,
they should take [D] per capita; because the statute says, [ M ]
^' there shall be no representation among collaterals after
^ brother and sisters' children :"(x) but among nephews and
nieces, (as here) there may be representation by the express
words of the statute.

But here Lord Chancellor interrupted the counsel, and if one dies ia-
said, that all these nephews and nieces of the intestate were ^ifiJ^^^.
equally of kin to him, and took as such, and not by repre- tbcr or sister,

S^%&9 a^9^vWHA|K ^^9

▼ersl brother's and sister's children, (viz,) one nephew by a brother, and three nephews and
tmo nieces by a sister ; these shaH take per capUa, and not per $H^pet, 'because all eqnally of

[D] It may in this case be not improper totajke notice, that where a personthns

h entitled to a distributory share, dies within a year after the intestate ; in such

.^^ tase, though by the statute no distribotion is to be made within a year, yet the

. share «f the deceased person will be an interest vested, trmsnissilile to his exe*

^^ <^* \ciitors «r admiiiislnitors : lor in ikis ieme the statote makes a wHl for flie in»

Cw testate ; and it is as if a legacy was bequei^bed payable a year hence, which

>V would plainly be an interest vested presently. Nay, where one died without

^^ wife or issue and intestate, leaving a father, who also died before takiBg est ad*

^>j ntDistration, or altering the property ef the estate ; though in that case there

was only 4me who could claim as next ef km, and so, literally and strictly

speaking,, there could be no distribution ; yet by the statute, the right to the

intestate^s personal estate vested in the father, and consequently belonged to hie

executors or administrators, imd not to the next of kin to the first hitestate, who

in auoh case happened to be a different person, -Griee v. Ghice by the Lord

Cawper^ HiL 1708. And note ; Mr. Vernon upon this occasion told the le*

porter, it had been twen^ times determined in equity, that where there is only

erne person entitled to take the personal estate of the intestate, as next of kin, the

statute vests Abe rigltf in fthat person, making him as a legatee of the piuty de-

wm.

(or) Vide Peti's Case, anfte, 1 ipL U.

Sa De Term. S. Trin. 1730.

Daters Bentation ; consequently^ they must take per capita, and not
V* per stirpes. SecuSj had any one brother or sister been living

at the Lord Dover's death : that this point had been deter-
mined by the Lord Sommers upon great deliberation in the
(a) Pre. Cha. case of (a) Walsh and Walsh ; and subsequent cases having
been resolved agreeably thereto^ it was fit that matter should
how be at rest. (1)

(1) Vide Llydy. Tench, ^ Vez. 595. Durant v. Prestwood, I Aik. 4 54,
913. Bowers t* Littleuood^Bate, 1 vol. Stanley ▼. Stanley, 1 Atk. 455. ^

[ 51 ] STORK E V. STORKE, et e contra.

Case 13*
Lord Chan- ^^^^^ Storkb, a considerable merchant at Rumsey in
cellor King. Hampshire^ had three daughters^ Mary, Elizabeth, and
A praBbyterian ^nn Storke ; James Storke was a strict presbyterian^ and
w° t d* *h!* hxtA up all his children and family that way ; he had three
ten bred up brothers^ Samuel, Thomas, and Abraham, who were also
had three bro- presbyterians. The said James Storke having survived his
thert prwby- wife, made his will, and appointed his three brothers, and
bis will, ap- One Andrews (who was a clergyman of the church of Eng^
KoScra wttd ^^^^9 *"^^ ^^* wife's brother) executors thereof, and guardians
aiao a clergy- to his three infant children. The testator in his life-time
chardiof Eng- ^^^^ ^ eldest daughter, who was sixteen years of age, to his
^'"if-*^"^*""* brother Samuel Storke, a merchant in London, to be edu-
fantdaaghterty catcd, and soon after died. Upon his decease, Andrews,
iMsenttiU^d- ^^® ®^ ^^ guardians, living neAr the testator in Hampshire,
eat daughter got into his custody the two daughters that were at their
brother^^the f&^her's house at his death, and placed them at a boarding-
clergyman school in Hampshire, where they were bred up in the way
other daugh- of the church of England, After which he. procured a bill
custody' and ^ ^^ brought in the names of the three infant daughters,
places them at against the four executors and guardians, for an account of
school whm ^^^ testator's personal estate, the greatest part whereof was
theyjrtrthred j^ the hands of the three Storkes, the testator's own
the church of brothers, and prajring, that the court would give directions

England; and

brought his bill to have the eldest daughter placed out with the other daughters ( the three
brothers that were presbyterians brought their bill to hare the two daughters deliyered to
them, offering parol endence that the testator directed and declared he would have his children

brothers that were presbyterians brought their bill to hare the two daughters delivered to
them, offering parol endence that the testator directed and declared he would hay
bred up presbyterians; the court declared no proof out of the wUl ought to be ad
cast of a deyise of a guardianship, any more than in the case of a deisise of land.

D« T«rm. 8. Trin. 1730.

Storks

Storke*

[62]

for the education of the three faifant daughters in the way
and principles of the church of England. On the other hand,
the three brothers brought their bill to have the two
daughters deUvered to them.

The Lard Chancellor decreed an account of the personal
estate ; and in r^ard the three brothers of the testator, the
Storkes, had no way misbehaved themselves, but had acted
in every thing for the good and benefit of the infant's estate ;
all parties were ordered to have their costs out of the said
estate. But though there were proofs in the cause, of direc*
tions having been given by the testator, that his children
should be brought up in his own forin of religion, and as
presbyterians ; yet the same not being expressed in his will^
his Lordship declared, he-would not go out of the will, nor
hear any parol proof touching the. testator's intentidns how
his infant daughters should be educated as to their religion ;
saying, that parol proof ought no more to be admitted in the
case (1} of the devise of a guardianshxpj than in the case of
a devise of land. ' However, with respect to the eldest
daughter, she being above the age of sixteen years, and in
London^ at the house of the testator's brother Samuel Storke^
one of the guardians ; it was ordered that she should be sent
for immediately into court, which being accordingly done,
and she being there asked where she desired to be ; on her
expressing a desire to continue with her uncle Samuel
Starke J his lordship declared she should oontinue there if she
pleased.

As to the other two daughters ; though it was pressed that
the three guardians and those, the testator's own brothers,
did desire to have these children delivered to them, and that
the court had a power so to do, since by the guardians dis*
agreeing, the care and guardianship of the infants devolved
to the court ; [£] and though this was represented to have
^ been the intention and earnest desire of the testator, who
could not believe that the single guardian, the clergyman,
would have opposed the other three ^ and notwithstanding it
was insbted, that in the case of so great a majority, the
court would order the two daughters to be delivered over to

[E] Sec the case of The Duke of Beaufort v. Berty^ voL 1. p. 70S. and that
of Darcy v. Lord HoldemesSy cited there in the note.

[5Sl

■*••

(1) Sed vide Anon. 2 Vex. 56.

S3 De Tkrm. 8. Trm. IISO.

Storks fhe three guardians^ to be educated as they should think
g ^' proper> especially in r^^d, since the act of («) toleration^

(a) 1 w &*M ^^ ^ ^^ unlawful to breed them preabyteriand : and the in-
ten. 1. c. 18. * tention of the testator in all lawful things ought to take
place : yet the liord Chancellor would do no more than di-
rect the Blaster to inquire, whether the school in Hampshire,
at whidi the two younger children were placed by the
guardian^ the deigyman, was a good and proper sdiool tx
their educatioa $ giving liberty to all pnrtiee to apply to the
court as there should be occasion. (1)

M^avMMMH^Hvw^iMb

(1) Reg. Lib. A. 1729, foL 474.

Case 14j CAPTAIN STRUDWICKE'S Case.

Sir Joseph Tab defttdant^ Captain Simdwicke^ having been cmnmitted
JEKTLL, to NewguU, as the county gaol, for debt^ and having been

the Rolls. ^^ ^ ^® spiritual court at the promotimi <rf his wife
Mot. 365. cmud aduUerU ei saviHte^ in which court there was a ses-
bMnftpriMMr ^^^'^^ ^^ div(»ee, d mensa et ihoro, and a condettmatioQ m
inNewgaufor costS| for non-payment wh^eof, he being excommunicated,
removed to the ^^^ having since procured himself to be removed by haieat
Fleet, i» ex- corpus into the Fleet prison : the prosecutor in the spiritual

GommQiii* ••

cated; the oouH applied to the cuTsitor to make out a writ of exconvmu-
^^^' ^'^^^ cifptetMio, dii«cted to the fFarden cf * the Fleet, to
direct the cur- cfattge the defendant iS^/rtaft&icArtf therewith. But the cursitor,
out a writ of apprehendii^ that it wus the constant course to make out
toth"""ari^* this writ of eroe>mi»iimtit»lo c«^pt«i&

of the fleet ; Other person, refused to make out the same directed to the
TOyt^dkSrt- vxwlen of the Fleet ; wherefore, as the directing the writ to
edtothesheriif, the sheriff woidd be to no purpose, forasmuch as he oauld
a non mTiii- not go into the Fket prison to execute it^ so that here would
tS*«tu'S?B ^ * fi«l«re of justice, unless the writ might be durected to
R. may gruit ' the wasdM of the Fleet : for this reason^ application was
pnMin?thCTr ^^^ made to the court of Chancery, for an order to the
op ^h«q;e hJte curskor to make ^ut the writ as desired ; insisting, that this
comm' cap*. Ought the rather to be done, because the defendant, while he
{ *M ] remained 4k prisoner in New^Ue, the county gaol, mij^
have been there charged by the sher^; whereas having by

Db Tmtl. 8. Trm. 1790. M

owb artifice remored hiihself td the Fleets he had now gtlitTD-
ende&Yburbd to tiiide the juitice of the court. That the eta* wickeN
tate of the &th of EKz. dtp. 2A. (thereby the Writ of ejrcom- ^^*
maimaio capiendo that Vas before xetimmUe in cdiaacery is
made returnable in the King's Bendi) incntioite^ throoghout
the aeVeral parts of it^ tbe ^kr^ dt other vjffkef to whom
jtfcA wrH thdtt be directed, &r to wkom the eseMion thereof
shtM appertain $ Which Words impfy, that the writ map be
directed to other officere as well as the sheriff: atod it ii
plain, that in some cases it cannot be directed to the sheriff^
as where the sheriff is the person excommunicated ; on which
occasion it must be directed lo the coroner : and by the
same reason, in the present case the writ might (it was said)
be directed to the warden of the Fleet, botii to prevent a
failure of justice, and that the party should not take advan-
tage oT his own artifice in removih^ hiniself ftota Newgate
to the f^tn

llie Master of the Rolls, before whom tUs tiaatt^r wai& t-M^
moved, asked wfaether^there was any precedent of a writ of The court of
excommuniciM capiendo being directed to the wanfcn of ^p^^j^^^
the Fteet f lb which it wae answered, that odne tould be meoto lo tho
found; but that the court of Chaiicery had often directed fimIT^^^
tiMur etaa^ments t» the warden of the Fleet %o take the
prisoneiiB in the Fleet prison. (^}

Upon which hit Honour, having taken time to contider td Wni of ek-
it^ on the day of motions next after the term dedared his \ vitcotiA^iel
opihion, that tie court of Chancery could not order the cat" J^*^ ^
sitor to direct this writ to the warden of tiie Fle^, the same sheriff u a
bei^g a viscountiel writ ; and though the words x>f the sta^- ^^'^""c*^^
tate of Elizabeth in several parts thereof mentton the sheriff ^ted, it muftt
or other officer, this might be meant of baHi0 of Mbertie^ thev^roner.
or the coroner. Who in all cases is the proper officer to exe-
cute process where the sheriff it a party. Or otherwise inca-
pacitated : tiiat in the county palatine of Dufhani, the writs In the comjr
are dfanected to the chancellor of Durham, OTdering him to K^a/writ«
oommand the sheriff : that in lAiis case there need be no faShire «« <dh«ct«dto
of justice, because the wnt might be directed to tne ^nmK, of DuriMiii,
on irtioise returning a non est inventus into the King's ^J^JjJ*]^
Bench, that court might grant an habeas eorfms to btitg up the shetf.
the prisdner, and there charge him with an e»eommtgnk4Uo
capiendo > bat Isbat lAie court oiF Chancety'a granting attadi-

^oseaasassBiK^eBaasessssami
Xx) Jnon.Moselej^ SOI;

55 De Term. & Trin. I730:

Strud- ments to the warden of the Fleet was not a parallel case^

WICKERS because those attachments are not returnable in the King's

. „ . ' Bench, but in Chancery : whereas all writs of excammunicaio

A.1I wnti of

excomm' cap' capiendo must be returnable in the King's Bench. Where-

turnable ki^ fore, there being no precedent of such writ being ever di-

B.R. rected to the warden of the Fleet, nor any likelihood of a

failure of justice for want of it, his Honour refused to order

the cursitor to make out this writ directed to the warden of

the Fleet*

[ 5« ] CHESTER V. CHESTER.

Case 15.

Lord Chan- ^^^ JoBN Chbstbr had two sons, William, afterwards

cellorKiNG. fFilliam Chester, and John, now Sir John Chester; Sir

Lend C J. John Chester the father, on the marriage of his eldest son

Lo Tc'b ^^^^^9 settled lands of 800/. per annum, part in posses-

Rftnolds! ^^^ '^^ P^"^ ^ reversion after his own death, on the said

Mr. Justice William for life, remainder as to part thereof to the wife of

'Price. , William for life, remainder to the first, £fc. son of the mar-

330** \9 ^* ™8® ^ **^ male, remainder to trustees for 600 years to
Iltsgib. 150. raise portions for the daughters of the marriage, {viz.) 4000/.
wnW. and C. <>™oi^grBt all the daughters, remainder to the said William
and on the and the heirs male of his body by any wife, remainder to Sir
A. set^B put John Chester the father in fee. Afterwards Sir John Chester
B iS^toU^d" ^® ^**®^ settled other lands of near 1000/. per annum, on
A. being seised his younger son, now Sir John Chester, for life, remainder
wYtnXonS to his first, Sfc. son in tail male successively ; and being
these lands, beiscd in fee of lands in possession of about 400/. per annum,
lands in pos- u^ Littleton, Marston, and Milbrooke, by his will devised
"^^^^''fn'h' ^ ^^ lands, tenements and hereditaments in these three
« 4aAds and towns of Littleton, Marston and Milbrooke. or elsewhere.
€f Jenu not '•^ *y him formerly settled, or thereby by him otherwise dis^,
<l y'^'fT^** posed of, to trustees for the term of 100 years, upon the
■* tied or dis- trusts therein mentioned, remainder to his said younger son
tiiHTi^kln ^^^^ Chester in fee. The trust of the term of 100 years
in fee will was, to raise money out of the yearly rents and profits of
P**"' the premises comprized in the said term, to pay the testa^

tor's debts and legacies, in aid of his personal est^. The
testator died, leaving an eldest son William, afterwards Sir
William Chester, and a younger ^n John, now Sir John

T)e T$rm.S. Tnn. mi

Ckegter. About a year after the death of the testator^ Sir
WiUiam Chester died leaving six daughters^ (the now pkdn-
faBs) and leaving no issue male.

The question before the court was^ whether this remote
reversion expectant upon the several estates created by the
said settlement on the testator's son fFilliamj should be
construed to have passed by this will ? If it did^ then it
would belong to the defendant Sir John Chester ; if not^ the
same would descend to the six daughters of Sir /Filliam
Chester, as heirs at law of Sir John the father^ and Sir fTil^
Ham his eldest son. And now this case was argued before
the Lord Chancellor^ the Lord Chief Justice Raymondy the
Lord Chief Baron Reynolds, and Mr. Justice Price, whom
the Lord Chancellor called to his assistance.

And by those who argued for the plaint^s, the heirs at
^sm, it was insisted^ that according to the words of the will,
according to the intention, and the several circumstances
manifesting such intention, it could not be reasonably
though^ that the testator meant to pass this remote rever-
tton in fee by his will 5 that as the plaintiffs were heirs at
law, they were to be favoured, and not to be disinherited by
doubtAil words, especially as they were not endeavouring by
this suit to strip the honour ; since the better half of the
estate had been settled, by Sir John Chester the father, upon
llie defendant his younger son, in his lifetime, in possession
and reversion : but that the daughters of Sir WiUiam would
not be provided for according to their quality, if they had
only 4000/. among six of them, and the additional lands,
whkh they were entitled to firom their father Sir WiUiam,
were but of small value : that the question was not, whether
Sir John Chester had it in his power to devise this reversion
in fee*; for it was plain he had : but whether in this case, it
was his intention to pass it ; and here it was said to appear
plainly not to have been his intention ; for that if he had
really intended to devise this reversion in fee, he would have
mentioned it, as he had done other lands of less value. He
had devised all his lands in the three towns of Littleton,
Marston, and 3Iilbrooke; and why not in the other towns,
where the lands were of greater value ? That it was true, in
tins devising clause the testator had added the word else^
where, (the devise being of all his lands, tenements, and
hereditaments in these three towns, and elsewhere;) but
Itat thin loose general expression! when the testator had b^

CHSBTm

CHfisnm.

[58]

^^9

S,7Vw;;7».

CamsR.

[69]

for^ descended to poiticmlan, should never tdce in laadk'of
greater ysliie thm Uie psitieiilsrs before ej^ressly men-
tioned; for which wa^ cited the case qf fFytm^nd lAitleiam^
1 Fern. 3. and 2 f^l. 36}. where the aame ease is reported
by the name of Sir Thvmoi I^Utktcn's case, and is as fcAowa:
'A man devised to JT. S* and his heirs all his lands in JSsn-
Ughskire, MoiUgmwrysMre and FimiMny or elsewhere
within the damMim ef Wales; and the testator was seised
in fee^ and in possession, of lands in odier counties within
the dominion of fFales, that were in mortgage to him, and
these mortgaged lands were of greater value than the other
lands; whereupon it was declai;^ to be the then Lord Chan-
cellor's opinion, and decreed, that after the testator in that
case had descended to particulars, th^e word elnwhere, which
is like an et eeetera, and comes in curremt^ cmknno, should
not comprehend lands of greater v^ue than those whicU bad
been partiisuiaiiy mentioned.

But that, taking the word ekewhere in the most extensive
ajgntficatifln, yet tiiat was restrai&ed by the subse^pient word^
sio^ by him farmo'fy settled, or oihfirwise disposed af; and
then die dgmai^ would run thus : ^^ 1 deviise all my lands and
^^ berpditements in IMtletfm^ MarsUm and MUkrooke, and
^^ elsewhere, not by me formerly settled.'' Now these words
formerkf settiedmnat be restrictive, sad be intended to pi»-
vent some lands from passing by tibe will, which^ were it not
fixr this clause, would have been inchided therein ; and eoo-
sequeotf y wifl pievent the passing fd this reversion in fef9.
For surely^ if the testator, or any one living, were asked*
niiether the lands in Sir fFilUam Chester's sefctlemeojk ^eie
not settled, the testator and all mankind must imswer in the
^afirmative ; they were settled on Sir fFUMam Chester's mar^
riage, and if so, were not to pass by IJiis will ; for oftisf tkfi
lan(ds not Iciriaexly settled by the testator were to pass by
this will^ and though the reversion in/ee was not settled, yet
tiBiJmtds were, and therefore must not pass.

That suppose the words of the devise wens, '' I devSae aU
^ «iy lands, excepting the iands settled;'' this had been the
samensif aU tbeiands mentioned in thesettleoaentaBAdeon
dhe manriage ttf Sir WUUam had been particularixed in this
-eoEoeption; and if so, thene liad been no eolonr to think that
Ike lands ^acceptjPid should pass. And for this was cited, as
aa eoqwess authority, the caseef J9^ 7^ Mpfy^SIMLSSS.
Also, tf the testator had^Maed|A Us h^ids Mttfaf on Us

D$ Term. 8.

17$0.

ion /PiHtam on his marriage, this would cevtalbly bare
{lassed the reversion of the lands thus settled 5 and it would
be very strange^ that the devise of the land noi settled, and
the devise e| the lands settled, should receive the same
construction^ though they seem to be diametrically oppo-
site*

That the inducement and occasion of the testator's maicing
this devise was a plain indication of his meanii^, and shewed
he did not intend to pass the land settled on his son fFUlmm;
for the devise of aU these lands was, to trustees for IQOyeara^
in tn/Bt, out of tiie annual profits to pay his (the testator's)
debts, remainder to the present Sir John Cheeier in fee.
Now, nothing could be intended to be comprised in this re-
asinder in fee to die present Sir John Chester, but what
was comprehended in the term of 100 year% and thmi eouM
not leasoniAly be supposed to include the lands comprised
in the beforementioned tenn (rf 600 years; berides, all these
lands in Sir fFiUiam Chester's settlement were Iknited to
Sir WUlimn in tail male general j namely, in defanlt of sons
of that marriage, to him and the heire maleof his body ; and
it was not reasonable to make tte reversion in fee a fund to
pay debts, which was not so much as assets for that purpose,

Fuither: The trast is to pay debts out of the amwmlrenfe
snd profits, so that the estate is not to be sold, but only the
annual pvoits to be applied : but surely the estate seized on
Ae first and other sons of Sir Wtltiam, whose lady was every
year deKvered of a diitd, tffl within a year of the death of
the testiltor Sir John Chester, could not afford a yeesAy
profit towards smking the ddM:. That as to tiie ease of
Strode r. Lwfy Rassel, 2 f%m. @L (and which it was ap-
prdiended might be objected) where one derised all his
lands and hereditaments out of settkment to his nephew
Strode, he taking upon himself the name of Litton ; there
the condition of tridng upon himself the name, shewed,
he was to continue the family, and therefore to have the
fiunily estate, and consequently the reversion in fee of what
was settled. Again, what further distinguished the prin-
cipal case from tibat of Strode v. Ladjf Russd, and the seve-
ral other caaee in the books of that nature, was, diat in the
principal case there was an estate-tail in being in a third
person, and not in the testator, by which means the reversion
in fee not being assets was of no value in the estimation of
bM^ and theesf ore ought not to pass by the general words.

CntTsa
Chestbb.

[BO

De Term. S. Trin. 1730.

Chbstee
Chestee*

One deriws all
hu lands in A.
B. and C. apd
elsewhere.
The testator
has lands in A.
B. and C. and
lands of mnch
^eater value
in another
county ; the
lands in the
other county
shall pass by
the word
*• elsewhere/'

of all the testator's lands and hereditanients not otherwise

settled.

Lastly^ It was observed^ that a field called Berry Field,
wherein were the conduit and water-pipes which supplied
the capital messuage with water, (and which capital mes-
suage was settled on the marriage of the eldest son fFilliam
Chester) had hj this will of Sir John Chester been devised
to the eldest son William and his heirs; from whence it was
said to be natural to infer, that the fee-simple of the capital
messuage and the fee-simple of the field were not intended
to be parted ; consequently that the reversion in fee of the
former was not intended to be disposed of from the heir at
law to the present Sir John Chester.

But the Lord Chancellor and the Judges assistants were
all clearly of opinion against the plaintifiGi. They admitted
that the heir is the universal representative of his ancestor,
and by doubtful words ought not to be disinherited : but said
the question here was, whether these words were doubtful 7
They thought not; that the word elsewhere was the same as
if the testator had said, he devised all his lands in the three
towns particularly mentioned, or in any other place what^
soever; and that there was no reason to reject so plain,
proper, and intelligible a word in a will as this, which pro-
bably was inserted to avoid the prolixity of naming the
several other towns in which the premisses lay, it being a
great estate, and difficult, at the time of making the will,
and when the testator might be supposed to have been inops
consilii, and without his Mrritings, to particularize all the
towns. That the word elsewhere was therefore the most
significant sensible and comprehensive word that could be
used for that purpose, equivalent to the naming of them ;
and it would be of the most dangerous consequence, under
pretence of construing this will, and assisting the testator's
intentions, to reject a word so material to be made use o^
both for the sake of brevity and security. (1)

(1) So Rooke V. Rookey Pre. Cha.
202. & 2 Vem. 461. S.C. Kingsman
V. Kingsman^ 2 Vem. 560. Ridout v.
Pmuy 3 Atk. 486. Freeman v. Duke

of Chandos, Coj/rp. S60, Z63. Atkyns
V. Atkyns^ Cowp. 808.(x) Vide tamen
Strong V. Teatt^ 2 Burr. 912, and 5
Bro. P. C. 496. S. C. iy)

{x) S. C. 1 Black. Rep. 200. Fletcher
T.S'iniloii,2T.R.656. Sheffield y.MuU
gravcy 5 T. R. 571. Roe v. Readcj
8 T. R. 118. Doe v. Meakin^ 1 East.
456« Goodright v. Dowmhirsj 2 Boi .

& Pul. 600. Doe V. fVeatherby^ 11
East. 322. Attorney General v. Vigor^
8 Yes. 256.
(y) Goodtitle v; Milesy d Eait 404.

Z)« Term. S. Trin. 1730.

That as to the case of Sir TAomas Littleton^ cited on the Cuesteb
•other side from Tern, aiid Vent, the question there princi- -, "*
pally depended on the premises in controversy being a mort- ^

g^ge. Now an estate^ though mortgaged, continues still to
be the estate of the mortgagor^ subject to the payment of the
pledge which is upon it ; and the mortgagee's right is only
to the money due upon the land, not to the land itself; for
which reason, till the mortgage is foreclosed, it is not pro-
perly the mortgagee's land, or to pass as such, by the devise
of ail his landsy{u) if the testator has other lands to satisfy
the words of the will 5 and in the report of this case in F'en-'
tris^ it is said, there were some other circumstances which
shewed the testator did not intend to pass the mortgaged
premises, and therefore the force of that authority is out of
the case. That if the devise had been of all the testator's
lands and hereditaments, (without spying more) and then
bad limited the premises to the trustees for' one hundred
yewrsj remainder to Sir John Chester in fee, this had been
good ; the words lands aind hereditaments would have passed
the reversion in fee in the lands ; and the words not other-
wise by me settled could have excepted only thai estate in
the lands which was otherwise before settled : whereas it is
plain that the reversion in fee was not settled and therefore
would pass by the will; {v) the land can no further be said
to be settled, than the estates therein are exhausted: but the
reversion in fee of this land not being settled, the land, as to
such reversion, is not settled; so that the same lands in Thesamelands
several respects* may be said to be settled and unsettled, ™rcttiedand
(viz.) with regard to all the estates exhausted, and of which unsettled ;

. ^ ("*«.) nettled

particular estates are limited, the l^d^ as to these estates, as far as the
may well be said to be settled : though, in respect of the S^itef^nd,"
reversion in fee, it may properly be said the tend is not set- unsettled as to
tied, {w) That it was material, that this reversion in fee r ♦(53'] '
which remains unsettled^ is part of the old estate ; so that if xbe reyenion
the person making this settlement was seised in fee as heir i*J [j?® "il*'^.
on the part of the mother, he shall still be seised of this re- tate ; and if
version as of his old estate, and as heir of the mother's side, \^^ u^a^^ ^

as before. In like manner, if the lands were before Gavel- heir of the mo-
ther, the.faif^Q
■haU desc^id to the heir on the mother's side; so if it was borough Englbh, or Gavelkind, it
ihaU descend accordingly. .

(«) Thompson v. Grant^ 4 Mad. C C. 337.
438. (2p; Biand t. Bland^ 2 Cox 349.

(©) Glover v. Spendlove^ 4 Bro.

VOL. III. B *

De Term. S. Trm. 1730.

Chester kmd, or Borough English^ this reversion, as part of the old
p ^' estate, shall descend in Gavelkind and Borough English as

before : wherefore, with regard to this reversion, the land is
with strict propriety said to be unsettled, and the owner
seised thereof as part of his old estate, his old property and
dominion. Besides, nothing can be said to be settled, but
what the party who made the settlement has not a power
over ; whereas the reversion in fee continues in the power of
him from whom the estate first moved, and therefore csgnnot
be said to be settled.

The Lord Chief Baron observed, that he looked upon the
case of [E] Wheeler v. fValdron, to have been the first case
of this nature^ which had been adjudged, and is in Alletis
Beports, 28. Next came the case of Lidcot v. fPtllows,
which though adjudged otherwise in the reign of King./am^«
tlie Second, and about the same time with that of Ifyfy v.
[ 64 ] Ifylj/ ; yet afterwards, in the reign of King William, error
was brought of the judgment in the case of Lidcoi v. Wil^
JotoSy and £he judgment reversed. See Cartheiv 50. 3 JMotL
229.J also, 2 Fhtt. 286. So that the case of Hyly v. Hylff
may \tell be said not to be law, it being adjudged the same
way, and about the same time, with that of Lidcot and Wil-
lotos ; and as the judgment of the latter was reversed upon
error, so also would the former have been, had error been
brought thereof ; and that, agreeable to tlie ceise of Lidcot
and WiHowSy was that of Cook v. Gerrard, 1 Lev. 212. (x)
And the court laid great stress on the case of Strode v. Lady
Bussell, which was affirmed in the House of Lords, and as
strong as the principal case, being a devise of all the tes-
tator's land out of settlement ; which words were determined
to pass the reversion in fee of the lands in settlement ; ob-
serving, that this resolution bound them down in the prin-
cipal case ; and that the case of a son inheriting the honour
must be as strong as that of a sister's son, who in the above-
mentioned case was the devisee of Sir William Litton.
And as to what had been inferred from Sir John Chester

[E] The reporter here remarks, that in the case of Joy ▼. Joy, heard at the
Rolls, Trinity, 1731, this case of Wheeler v. Waldran being cited, his Honour
sent for the record ; from whence it appeared to have been found by the special
verdict, that, unless the reversion in fee passed by the will, there would not be
sufficient to pay the testator's debts; which reason is not taken notice of ia
the book.

(x) S. C. 1 Saunders 180.

De Term. S. Trin. 1730.

tLe testator's having devised Berry Field to William Chester
and his heirs^ (^^0 that the said field and the capital mes-
suage were intended to go together^ and not to be parted ;
the court took notice, this was but a slight circumstance,
and that if there was any strength in it, then the field should
have been devised to the same uses and to the same estates,
as the capital messuage was limited by the settlement made
on the said TFilliam Chester^s marriage. Whereupon the
decree was in favour of Sir John Chester the defendant, by
the unanimous opinion of the Lord Chancellor, Lord Chief
Justice, Lord Chief Baron, and Mr. Justice Price, (1)

Chester

Chester.

(1) Reg. Lib. & 1729. foL dOO.

BARLOW V. BATEMAN.

. ^^^'^^^'caleK,

L65 J
Mr. Barlow, of ffales, gave an additional legacy of 1000/. Sir Joseph
to his daughter, upon condition that she married a man who -^/^^^^^
bore the name and arms of Barlow; and in case the daughter ^^^^ Rolls,
married one who should not bear the name and arms of Devise of a le-
Sarlow, then the testator devised the 1000/. to the plain- ff^^y to a feme

. * ' on condition

ti£ (1) The daughter married the defendant, whose name sbe marrv a
wBBBeUeman; but about three weeks before the marriage he na*|^e*of Bar-
called himself Barlow; and it was said, that it was usual to low. a. takes
have an act of Parliament to take a new name, which had not nam" of Ear-
been done in the principal case. Besides, it was the inten- }P^* ^^^ ^^®
tion of the testator, that the person who should marry his him; this is a

performance
of tbe condition, and equity will not decree the hutband to retun that name.

(1) ^' Item, I give and bequeath to
^^mj kinswoman, Mari^ Barlowj the
^ sum of 1000/. to be paid her at her
^^ age of 21 years or marriage, which
^^ shall first happen. Item, in case the
'^ said Mary Barlow shall marry with
^^ any person of the surname of Barlow^
^^theu I give her the farther sum of
^ 1000/. to be paid her on the day of
^ such her marriage with a Barlow afore*
'^ said ; but if the said Mary Barlow shall
^^ die unmarried, or shall marry a per-

^^ son not bearing the surname of Bor/otv,
^^ then I give the said last mentioned
<< sum of 1000/. unto Charles Barlow.'*
The defendant Robert Bateman by his
answer admitted, that on the occasion of
his marriage jand not before^ he assumed
and took upon him the name of Barlow;
that his father's name was Bateman; and
that he assumed and took upon him the
name of Barlow, in order to entitle him
to the said sum of 1000/. devised to the
said Mary upon the condition aforesaid.

65 De Term. S. Trin. 17S0.

Barlow daughter, and be entitled to this additional legacy, should be
^* one of his family, and have originally borne that name;

whereas the defendant was of a fkmily much inferior, and
would, in all probability, as soon as he should have received
the legacy, take again his true name of Baieman; wherefore
the plantifF claimed the 1000/.

Master of the Rolls. The plaintiff would entitle himself to
this legacy as a devise over, on a supposition that the
daughter has forfeited it : but I am of opinion, that the con-
dition is complied with, by the defendant's taking the name
AodenUy o{ Barlow. Surnames are not of very great antiquity; for
caUcd by^^cir ^ ancient times the appellations of persons were by their
Christian Christian names, and the places of their habitation; as
the places of Thotnos of Dahy (viz,) the place where he lived. I am
tl^ir births^ satisfied the usage of passing acts of Parliament for the
&c. One may taking upon One a surname is but modem; and that any

and without ^^^ "^7 ^^^ upon him what surname, and as many sur-
an act of Par- names as he pleases, without an act of Parliament.* Where-
change his upon, though the plaintiff's counsel desired the court would
name, and take direct, that the defendant should ever afker retain the mir-

a new one.rx) ' , «. u ^

[ *QQ J name of Barlowy from an ap^rehenbion thaCt Be would, when
he should have received the legacy^ resume his old naixie
oiBatcman; yet his Honour Vefused to make any such
"decree.(l)

(1) Bat upon appeal to the House HonoaHs decree viba reversed. 4 Bro.
of Lords on the 2d of Aprils 1735, his P. C. \ 94.Cy)

^^■^^^^^^^^^

{x) So Doe V. Yates^ 5 B. & A. 544. Leigh v. Leighs 1 5 Yc^. 91K. H\at^kins
Of) Pyot V. Pyoty 1 Ves. Sen. 335. v. Luscombey 4 Swan. 375.

De Term. S. Trin. 1780. 46

Jfdin Roberto, Esq. and Catharine^ > _,, . ^._

hb Wife, . \ PJ""tiff8. C«e 17.

David Roberts^ Esq. the Son of the > _. ^ ,
Plaintiff Robert 5 Defendant.

Thr bill wae to be relieved against an underhand bondj Sir Joseph*
d^ted the 1 st of Februmy, 1728, gained by the defendant) ij^^^^\
David Roberts the son, from the plaintiff hid father, in the ^^ Rolls,
penalty of 2000/. for the payment of 1000/. within fourteen a. treats for
days after the date of the bond. ti^c marriage

The equity was> that the bond was obtained by the de- in the settie-
fenda^t the son from the plaintiff John Roberts the father, °n°|h°ere*u
in fraud of an agreement made on the marriage of the plain- a power fc-
tiff John Roberts the father with the other pla^tiff Catherine father, to join-
his second wife, and without the privity of her or any of her ^»'* *°y ^^^^^

, * ' * whom he

lelations. should many^

The plaintiff JbA» Roberts's first wife, who was the de- ""^^I'iJIIs^,

* ■ ' annum, paymg

fendant's mother, was a considerable heiress, and died leaving looo/. to the
several childre;n by the plaintiff. The defendant David "her treating
Roberts * was the second son ; for whom the plaintiff his ?^out marry-

, ^ ing a second

father bou^t a commission of lieutenancy m a company of wife, the son

dragoons ; after which the eldest son dying, the defendant Jhe^^on?

David Roberts the son intermarried with the sister of Mr. wife's rela-

Meller, late one of the Masters of the Court of Chancery, tJuTiooo^ an?

who had a portion of 4000/, and (inter aVJ the plaintiff the b^ftlkcra "^*

iather, who was tenant by the curtesy of all his wife's .estate, private bond

jomed in settling a good part of this estate on his son the Kc pay?'''^

defendant David Roberts in possession, and on his wife mcntofthis

Metier J the residue of the estate was limited to will not set' ^

John Roberts the father for yfe, remainder to David Roberts f "^f S^'"

bond, because

the ^on, with a power rciserved to John Roberts the father to it would be
aettle 2001. per ammm, (part of the premises limited to him ihc'fim i^r-
for life) upon any wife whi^h tbe plaintiff Roberts the father nage, which
ifehould marry, be the said Roberts the father paying, or se- time^ i? to^be
curing, to t^le good liking of the defendant Roberts the son, P»^«ferred.
1000/. L ^^ J

The power in the settlepient was penned in a strict man-
;ner, by way oi cpodition precedent, (viz.) a proviso, that in
case the plaintiff Jfobert^ tihe father should pay to the de-

DeTerm. 8. Trin. 1730.

Roberts
Roberts.

[68]

fendant Roberts the son, or to his good liking secure to the
said Roberts the son^ 1000/. it should be lawful for Roberts
the fether to limit to any wife that he should marry lands of
the value of 200/. per annum. There was also a power for
the defendant Roberts the son to limit lands of 400/. per
annum to any wife that the son should thereafter marry.

Afterwards the plaintiff Roberts the father entered into a
treaty of marriage with the plaintiff Catharine Barker j the
sister of George Barker of Chisunckj Esq. who had 3000/.
portion ; and thereupon the plaintiff Roberts the father pro-
posed to settle these premises of 200/. per annumj upon the
said Catharine his intended wife ; bat then it appearing, that
the plaintiff Roberts the father was to pay 1000/. to his son
David Roberts J upon his (the father's) making this jointure;
and that the payment thereof would very much straighten
the plaintiff Roberts the father ; unless this 1000/. was re-
leased, the said plaintiff Catherine and her relations would
not consent to the marriage.

Upon which the plaintiff Roberts the father applying to his
son, and informing him where the marriage treaty stuck,
(namely, at the father's paying this 1000/. to the son) and
that it could not proceed, unless the son would release the
same ; the defendant Roberts the son did agree to release
this 1000/., in consequence whereof he wrote several letters
to Roberts the father, intimating that he would release the
1000/. But it did not appear, that the son*8 wife, or any of
her relations, were consenting to such release. However, the
plaintiff the father introduced his son into Mr. Barker's com-
pany, on which occasion the son expressed himself pleased
with the intended match ; but not long after, the defendant
Roberts the son began to recede from his promise, and in-
sisted with his father, that if he the son released this 1000/.
to the father, then the father should give him, the son, a
bond for the payment thereof within a short time after the
father's marriage ; to which the fether, being very much set
upon this second marriage, did at length consent, (viz,) to
give a bond to the son for the pajrment of the 1000/. upon
the son's giving a release to the father : and the bond which
the father was to give to the son, was, to pay the 1000/. to
the son within a fortnight alter the father's marriage. But
this agreement for the father's giving the said bond to the
son, was without the privity of the said Catherine Barker
the intended wife, or any of her relations.

De Term. S. Trin. \7cQ.

Roberts.

. Thereup on a release was prepared for this purpose^ which Roberts
Roberts the son did execute, and the father privately gave
his bond for the payment of 1000/. to his son; but the re-
lease of the son not being thought effectual by the friends of
the said Catherine Barker^ another lease was prepared for
him to execute, which accordingly Roberts the son did exe-
cute for this 1000/. but a day or two before the marriage ;
and the father did about the same time^ or soon after, execute
a new bond to the son ; but this bond as the former, was given
by Roberts the father without the privity of Catherine his
intended wife, or any of her relations.

The marriage between Roberts the father and. the said
Catherine took e^ect, and the portion of 3000/. was paid.
Afterwards the defendant Roberts the son sued his father on
this bond for 1000/. upon which the father Roberts brought
a bill in equity against his son, and on motion before the
Master of the Rolls, had an injunction on the merits : and
now between the seals after Trinity Term, the cause came
on to be heard at the Rolls. When

On behalf of the plaintiffs it was insisted, that it was plain
this bond for the 1000/. in question, was obtained from the
plaintiff Roberts the father without the privity of the plaintiff
Catherine the wife, or any of her relations ; that it seemed'
as plain, that neither Catherine the wife, nor any of her rela-
tions, would have consented to the match, had they known
of this underhand bond being given by the flointiSMoberts
the father to the defendant his son ; which appeared still
more evidently by the great caution made use of by the
plaintiff Catherine and her relations. In excepting to the first
release executed by the defendant Roberts, as not sufficient
and effectual ; and in insisting upoa another release which
was thought more effectual, and had been executed by the
defendant Roberts the son 3 that whenever any of these un-
derhand agreements on marriage came in judgment, the
court constantly declared an abhorrence of them, as being in
fraud of the marriage, and generally tending to make the
marriage unhappy; and that every thing which had, or
seemed likely to have, those effects, ought highly to be dis-
couraged.

That for this reason equity is careful that the open and
public contract made upon the marriage should take place,
and will not suffer that to be infringed by any clandestine
and private agreement whatever ; nay, so odious in a court

[70]

De Term. S. Trin. 1730.

RoBtHTS

Roberts.

[71]

of equity are all secret and underhand dealings^ as to entitle
to relief even the husband himself, though party to the fraud
and consenting to the agreement : but in the principal case,
the bond given by the husband for the payment of the money,
did in consequence affe<^t the wife. 1000/. was a consider-
able sum of money, for which when the husband should be
called upon, he must be disabled thereby from maintaining
his wife, at least in so comfortable a manner as otherwise he
might, and probably would have done, and therefore it was
proper the wife should be, as here she was, a co-plaintiff, in
order to contest and set aside the bond.

IThat it was true, the bond in question was only for lOOO/.
but it might have been for 10,000/.; and if the present bond
for 1000/. were allowed to be good, by the same reason a
bond for 10,000/. had been good also, which must utterly
have incapacitated the plaintiff Roberts from maintaining his
wife, who must in such case have gone back to, and been a
clog upon, her relations, although she had brought so consi*
derable a portion as 3000/.

It was admitted to be in proof, that the plaintiff Roberts
the {ather did in all outward appearance execute this bond
freely. But this was not at all material ; for still it was a
clandestine bond, given without the privity of the wife or her
relations ; and would, as was before observed, if discovered,
in all probability have prevented the marriage.

That innumerable precedents might be alleged, where the
husband not only was pensive in consenting to the underhand
agreement, but had also been active in encouraging it ; and
yet had been relieved against his own act, fraud, and con-
trivance ; which doubtless was done in favour to the wife,
and to the end her husband might not thereby be disabled
from the better maintaining her, who in the present case
was not pretended to have known any thing of the bond, but
to have been entirely innocent, and free from the least im-
putation of fraud.

And as to the jointure made upon the wife in this case, it
%vas said to be a hard bargain, being but a jointure of 200/.
per annum, for 3000/. portion : whereas it is usual to settle
100/. per annum for every 1000/.; and this 200/. per annum
lay at a great distance, in Wales, without any the least pro-
vision for the children of the marriage.

That with regard to the father's power reserved to him to*
make a jointure, it was observable, he was made to pay

De Term. 8. Trin. 173a;

72f.

1000/. for It, for a power to limit only an estate for life, and
this in reversion too, after another life : so that if Roberts
the father should happen to survive his wife, it would have
been paid for nothing ; that it was at the rate of five years'
purchase, which was holding him to rigorous terms, especially
when at the same time the son was intrusted with a power of
making double that jointure being allowed to make a join^
ture of 400/. per annum, without paying one farthmg for it.
It was admitted this was a bond given by the fether to the
son, not by the son to the father j so that the usual argument
of its havmg been given by compulsion or coercion might
seem not applicable in this case : but still the fraud was not
the less upon the plaintiff Catheriney who was entirely inno-
cent, and kept in ignorance of it. The wife was equally a
sufferer, and her relations imposed on to as great a degree as
If she had been the wife of the son, not of the father. And
as to authorities, they were very strong, as in 1 Fern. 348,
Bedman's case j so 1 Fern. 475. Gale v. Zdndo 3 in whicb
cases the wife as well as the husband was particeps criminis,
and yet relieved. The same in [A] Ihirton v. Benson, 2
Fern. 764. Wherefore it was prayed, that as the court for-
merly ordered an injunction till the hearing, so they would
now grant a perpetual injunction.

On the other side it was urged, that in the principal case
the pl^ntiff Roberts the father was not only party to what
was here called the fraud, in giving this underhand bond for
the payment of the 1000/. but that, upon the defendant
Roberts the son's marriage, when he reserved to himself a
power to make a jointure of 200/. to any wife whom he
should thereafter marry, he himself made a private agree-
ment with his son, that the latter should release this 1000/.
to him ; and the very bill sets forth, that the son the de-
fendant Roberts, at the time when he made his marriage
settlement, did declare before several persons, that he would
not insist upon such claim, nor expect payment of the lOOOf.
So that all that could be alleged in &vour of the second
wife of the plaintiff Roberts the father, might Hke^se be said
on behalf of the wife of the defendant Roberts the son ; and if
it should be insisted to be injurious to the plaintiff Catherine,
t)ie second wife of the father that iSiis private agreement
should take place 3 it must be allowed to be no less prejudicial
to the wife of the son, that the private underhand agreement

BoiiuiTt

V.
RoBSBTSb-

[73J

{A] See vol. 1. 408. where there is a note ceftHTing to tWs case.

Be Tern. S, Tnn. 1730.

Roberts
Roberts.

[74]

for the releasing, or not insisting on the payment of the 1000/^
on the father's making a jointure on the second wife^ should
hold good; and it was plain that the agreement on the mar-
riage of the SOD, that the father^ if he settled a jointure on a
second wife, should pay 1000/. was made on a valuable consi-
deration, and with a view to prevent the father's marrying
again. Then if the plaintiff Roberts the father, had not an
undoubted equity on his side^ and the law should be in favour
of the defendant Roberts the son, (as clearly it was, the bond
being good at law,) the son's bond must prevail.

That as it appeared from the son's settlement, that this
provision was made at the instance of the first wife's friends,
that, if the father married again, he should, on his makhig a
jointure on a second wife, pay 1000/. to the son ; the second
wife or her friends ought to have applied to the relations and
trustees under the first settlement^ and to have given them
notice of this intended release of the 1000/. they being in
some measure, in equity, interested therein.

[Here the court proposed it to the plaintiff's counsel, whe-
ther they had known or could cite any precedent of an under-
hand agreement to give a bond on a marriage being set aside,
which when done, would be injurious to a former agreement
made upon a valuable consideration.

To which it was answered, that whatever agreement or
promise the son might make to the father of his not insisting
to be paid this 1000/. on the father's second marriage, yet it
did not*appear that the father ever required a bond or cove-
nant from the son to oblige him to it; and as to any verbal
agreement to ^hat purpose, supposing there were any such,
the son must know it would not be binding; and it would be
hard that this agreement for the father's giving a bond to
pay this 1000/. to the son (which w^ plainly an underhand
bond) should be binding to the prejudice of the father's se-
cond wife, who brought a good portion, and was at least her-
self innocent of any fraud, whatever imputation of that kind
might lie on the husband.]

Master of the Rolls : It is most true that equity does abhor
all underhand agreements (1.) in cases of marriage ; and per-

(1) So Anmdel v. TretnlHan^ 1
Chan. Rep. 47. Drury v. Hookcy 1
Vero. 412. Smith v* Bruningj 2 Vern.
392. Stribblehillv. Drett^i Vern. 440.
Smith V. Aykwell^ 3 Atk. 566. Cole v.
Gibion^ 1 Ves. 503. which are cases of

direct marriage brocage ; and in the
case o{ Shirley v. Martin ^ in the Exche-
quer, on 14th Nov. 1779, the court
was of opinion, that contracts of this
nature being avoided on reasons of
public inconvenience, would not ad*

Da Term, 9. Trin. 1130.

faaps, this may be the only instance in equity^ where a person,
though particeps criminiSy shall yet be allowed to avoid his
own acts. Marriages ought to be encouraged^ to which end
the open and public agreements on marriage treaties should
be supported and made good. It is not usual in cases of this
nature for the wife to be made a co-plaintiff with the hus-
band, in order to avoid the agreement, but the husband has
been relieved on a bill brought by him alone. And therefore
} do not think that the wife's joining in this bill at all alters
the case. Neither does it make any difference, that the^/Aer
seeks here to be relieved against the bond. No evidence has
been given of his having made use of his paternal authority,
and the father is as much at liberty to marry again as the son.
But what I take to be material is, that whatever arguments
can be made use of in favour of the plaintiff Catherine, the
father's secojid wife, or of her husband, to prove that the
father ought to be discharged of the bond for payment of the
1000/., the very same arguments may be urged on behalf of
the son and his wife, to prove that it ought to be paid. Thus
supposing it to be an hardship upon the father's second
wife, that her husband should be forced to pay this 1000/. in

ROBCRTS

V.
ROBEKTS.

[75 J

mil of subseqaent coDfinnation bj the
partj.(x) So, any private agreement
or treaty iDfringing the open and pubKc
agreement or marriage, is considered as
fraadulent. Peyton v. Bladwellj 1 Vem.
240. Redman v. Redman^ 1 Vem. 348.
Gale V. Lindoy 1 Vern. 475. Lamlee v.
IJanmany 2 Vem. 499. Keat t. Allen^
2 Vem. 588. Webber v. Farmer ^ 2
Bro. P. C. 88. Morrfton v. Arbuthnotj
1 Bro. C. C. 548. note. Pitcaime
V. Ogboume^ 2 Ves. 375. In Neville ▼.
Wilkinson^ before Lord Thurlowy in
November 1782, his lordship said he
would not lay it down as a rale, that
fraud in cases of this nature must be
upon an article expressly contracted
for^ but any representation misleading
the parties contracting on the subject
of the contract, was within the prin-
ciple of the other cases, and his lord-

ship relieved by injunction against a
bond entered into by the plaintiff to
tlie defendant before the plaintiff's
treaty of marriage, the defendant hay-
ing by the plaintiff's desire, upon the
occasion of such treaty, misrepresented
to the wife's father the amount of the
plaintiff's debtSj and particularly con-
cealed from him the bond in question ;
and this relief was given, although it
did not appear that there was any ac-
tual stipulation on the part of the wife's
father, in respect of the amount of the
plaintiff's debts. 1 Bro. C. C. 543.
S. C. — Vide etiam Key v. Bradshawy
2 Vern. 102. Duke of Hamilton v.
Lord Mohun, ante, 1 vol. 1 1 8. Wood"
house V- Shepleyy ^Xik, 535. Blanchet
V. Foster, 2 Ves. 264. Montejiori v.
Montefiori, 1 Bla. Rep. 303. Jackson
V. Duchaircy 3 T. R. 551.(^)

(x) See this case stated in I Ba. and
Be. 358.

(y) Scott V. Scott, 1 Cox 366. £«-
parte Gardner, 1 1 Ves. 40. Palmer v.
Neave, 11 Ves. 165. It is a rale in
cases of frauds on marriage that ri-

though the husband were a party to
such fraud, yet his interest is not to be
affected where there is a wife or child
who would also be affected, Thompson
V, Harrison, 1 Cox 344.

De Tern. S. Trin. 1730

RoscETs breach of the public aad open agreement made by the ^n^
^ ^' ifi it not equally an hardship upon the son's wife, and as

mudi a violation of the open and fair agreement made on her
marriage, that the 1000/. should not be jg^aid upon th^ father's
making a second jointure 7 The consequence of which will
be, that ai the agreement on the son's marriage was ihejlrsi,
h ought to have the prefinrence. Qui prior 0st in temporey
potior est injure*

Further: On the &ce of the bill it is alleged, that the son
on his marriage, and when his &Uier i^reed to pay the 1000/.
on his making a jointure to a second wife, engaged not to in-
sist on, or eiq^ect the payment thereof; which shews it was
intended as a fraud upon the son's wife, or her relations ; and
the fieuther's agreeing to pay the IO0O/» op such contingency.
Blight be some* inducement to the son's vnf% and her relations
to come into the match. But if this had not been ^hsised
in the bill, it still appears on the raeritp, that the defendant
Roberta the son and his wife are purchasers of the JQOO/. in
[ 76 J case of the fsther's marrying again and oiaking such jointune,
as he has done. Wherefore, since the payment U this lOOO/,
by Roberts the father, may as much coatriibute to the .com-
fortable subsistence of Roberts the son aad his wife, as ilie
non-payment of it may conduce to the comfortable living of
the father, and his wife; and as by means of this bond, Ro-
berts the son has the law on his side, I think the bond must
be pidd; and the only relief I can give the^Aer is, to award
a perpetual injunction, upon payment of principal, interest
and costs (I).

In this case the Master of the Rolls observed, that the
practice of the court, in relieving against all marriage-bro-
cage bonds, plainly shewed it to be their opbion, tliat every
cot) tract relating to marriage, oi^bt to be free and x)pen$ and
(a) Ca. in Pari, he took notice, that in the case of (a) Potter v. Keen^ where
Law V. Lav Acre was a bond to pay money for procuring a marriage, the
poit 391. JLoid Sotnmers decreed in favour of the bond, (ronceiving, that
as die procunog a marriage was a good consideratbn at lav^
for an assfimpsit, so, provided the bond were in a reasonable
sum, the same nugfat be a good consideration for a bond in
equity. But that the Lords, with great justice, reversed the
JjoitA JSommers* s decree, for tiiat it would be of dangerous
consequenoe to allow of any such bonds, as tending to intro-
duce many tn^rorident marriages.

(1) Reg. Lib. B. d72a,/oJ, 324.

Dc Term. S. Mhhaelis, IISO. 77

TERM. S. MICHAELIS, 1730.

SHIRLEY ET AL'. t;, EARL FERRERS. q^ ^g^

HoBftBT late Earl Ferrers was fleised in fee (among many Lord Chan-
other efitates) of lands in Ireland of SOOO/. per ammm : and cellor King.
bavitig veveral sons by his first wife^ {viz.) fFashtngtony &c. m<m.389.
nmd ttho having aevei^ sons by his second wife, {SHenUy the dercd tobt^-
present Countess dowager Ferrers,) the said Earl Robert by JSw eLe*
a settlement had limited these premisses in Ireland^ to his where the
«ott8 by his last lady, the Coimtess SOma. Upon the death S*ift^'"^"
of Earl Robert, the earldom descending to tfmhingion fiaitl ^^y '^ ^^^
Ferrers J his lordship ^ckdmed title to the premisses in Ir^ the^witaeL^
iand, by virtue of a prior settlement made thereof by Bad JJ!fo'f***T**
-fttAert in May, 1663, whereby %he premisses w«re limited to importance ;
himself for Ufe, remainder to his son iTtiskmgtm if<lr «fe» llit^V^
remainder to his first, &^ s6b in lidl buie, Tetwahider to ^^t mred to
evety dther 'son of Earl Robert in tail nale ^uccesdvely, r^ firm.
mainders over. And it being inslgtftd mi by the was lof the
fleeoiid BMrriagc, that -this wasaioi^ped deedf antsoiemaa { raj
directed to try the «anie« Bail Washington died without
issue male, and £he earldom descended to the defendants
This suspected deed of May 1683, had been bitmgbt%tfate
the Master by Earl fFaskington $ 4nd the younger sons by
the second uutolage and their l^^ts, having r inspected it in
^the MaMer's hands, one Jahn Shirley, bom m JMeosd, and
to whom Earl Washington had Shewn several ftvoiM, came
to the Master to see the deed, and made an affidavit, that
in December 1720, the deponent himself, by order of Earl
Washington, transcribed this supposed deed from another
copy in parchment ; and that, at that time, there was no

Db Term. S. Mickaelis, 1730.

Shialet

Karl
Ferrers*

[79]

seal, or name subscribed, nor any witnesses to it ; whereas,
now it appeared, that this very deed had a seal put to it, and
Earl Robert's name and title subscribed to it, and three wit-
nesses' names indorsed, though those witnesses' names were
almost rubbed out.

The sons by a second marrii^e thereupon brought a sup-
plemental bill setting forth this matter, with John Shirley*s
affidavit annexed ; and praying that they might be at liberty
to examine this witness, in order to have his testimony per-
petuated. And now it was moved, that the plaintiffs might
examine this witness, de bene esse^ the defendant having
prayed a commission to answer.

On the other hand this was opposed on behalf of the
Earl, by reason there was not the common affidavit, that the
witness was old, or infirm, or in any danger of dying : and
it was said to be against the constant course to grant such
motion, but upon very full affidavits of the witness's not
only being old, but also infirm, and in danger of dying.

But the Lord Chancellor, (after this had been twice
moved) on affidavit made, that no other person was privy to
this matter, as the plaintiffs knew or believed, did order that
the plaintiffs should be at liberty to examine this witness
Shirley de bene esses in regard he, as well as all others|,
might die, and. by that means the plaintiffs might be de-
prived of his testimony ; and for that this matter lay in the
privity of this witness (1) only, and was of great importance;
but that if he were then living, the plaintiffs should produce
him at the trial. (2)

Afterwards, on the trial of the issue, at the bar of the
King's Bench, Hilary, 1730, the deed was found to be
forged, upon the evidence given by. this witness, {z)

(1) So, Pearson v. Ward, in Cha.
Feb. 28, l7S6.(x) Brydges v. Hatch,
in Cha. Jan. 19, 1788. (^)

(2) Vide Phil^s v. Carew, ante,
1 vol. 117.

(x) 2 Dick. 048. 1 Cox, 177.
(y) 1 Cox 423. Hankin v. Middle-
ditch, 2 Bro. C. C. 641. Cholmondeley

v. Oxford, 4 Bro. C. C. 157.

(z) See Dursley v. Fitzhardinge, 6
Yes. 254.

De Term. S. Michaelk, 1730. ^9

JONES V. EARL OF STRAFFORD, ET AL\ Case 10.

Thb plaintiflf, as administrator during the minority of four i^rd Chan-
infant children, of the goods and chattels of one Bromelly cellor King.
who died intestate, brought his bill to recover a debt by ^^'^ ^^*®^
bond for 2000/. dated so long since as 1685, and a debt by Rj^ymond;
note for 800/. dated so long since as 1686, both pretended to 2 Eq. Ca. Ab.
have been given by Sir Henry Johnson, knight. The bill 25a. pi. 11.
alleged, that Sir Henry Johnson by his will had subjected
his lands to pay his debts, and was brought by the plwitiff
against the defendant the Earl of Strqffhrd, as administrator,
with the will annexed of Sir Henry Johnson, (on the exe-
cntor's renouncing) and against his heir at law and devisee ;
and it appeared by the bill, that one of the said four infants,
being the eldest, and a daughter, was married to J. N. who
was of age, and a co-plaintiff, and who sued as one of age,
and not by his prochein amy or guardian.

The defendant the Ead of Strafford, as to that part of the
bill which sought to recover the 2000/. of the money due on
the said bond, or the money due on the said note from the [ 80 ]
said Sir Henry Johnson, or the defendant as his adminis-
trator, or which sought any relief in relation thereto, or any
cUscovery in order to such relief, demurred; for that it ap-
peared on the face of the bill, and of the plaintiff's own
shewing, that as the plaintiff's title was only as adminis-
trator of Bromell, so the administration was determined by
the infant daughter's having married an husband who was of
age ; also, as to such part of the bill as sought to recover the
800/. or money due on the note pretended to have been given
in 1686, the said defendant /i/^flk/ed the statute of Limitations,
and shewed, that the debt was barred by the statute ; and
that six years and upwards had incurred, long before the
sdd Sir Henry Johnson had made his will, whereby he
charged his lands with the payment of his debts,
• Moreover, as to that part of the bill by which the pUdntiff
sought to recover the money due on the bond, the defendant
pleaded ; that the plaintiff had brought an action of debt on
the bond, in the court of Exchequer against the defendant^

W De Term. S. MichaeUs, 1730.

JoKcs ^iriio had pleaded solvit ad diem, and that the said action
^^ ^ was still depending : and to some immaterial part of the bill,
Strafford. ^^^ defendant put in a short answer. These pleas, ti^ther
with the demurrer, coming on to be argued, the Lord Chan-
cellor called the Lord Chief Justice Raymond to his assist-
ance.
A defendant And it was objected to the demurrer, which was said to be

cannot demur • *» • i ^ i.

and plead, «r ui effeet to the whole bill, that the same was oTcr-ruled by
•Mfw to^the *® pJ^Bj and «!«> by the answer; and that this was the
•ame part of a proper conclusion of all demurrers, (viz.) to demand judg-
pieal i^^* ^^^^ ^ ^^ courts that the defendant ought not to answer to
rulei the de- what the deuurrer extends to : now the demurrer extending

innrrer.fx) »• - i . ^ i» •

[ 81 1 ^ ^^7 relief, as to the bond or note, or any discovery in
relation thereto, and the defendant afterwards pleading the
statute of limitations as to the note, and the action at law,as
to the bond ; these pleas (it was said) overruled the demurrer:
for the plaintiff joight reply to the pleas, and thereupon exa-
mme wltoessesp and hear the cause ; so that the pleas were
(m) Vol. 2. 464. as an iDSwer, and sworn as an (a) answer. And upon time
granted to aoaver, the defendant may plead ; wherefore it
must be iaeoiisistent for a man to say, *' I demur, and there-
^^ fore ought not to answer," and yet at the same time to
answer ; consequently, a defendant cannot plead and demur
to the same part of the bill ; and as answering to the same
thkig overrules a plea, so iL fortiori pleading or answering to
the aanne thing overrules a demurrer.

And oi this opiniiHi were the court, (viz.) that the pleas

ovemded the demwnrer. But still it appearing that the in-

fimt daught^ was married to one that was of i^ ; if thereby

the administration was determined, the court said they would

«ot pioceed in a suit, where it was evident the plaintiff

flWmed lader an administratftcm which was at an end.

^J^[^^ IVlffl^qpon liMT the demurrer it was insisted, that the ques-

gfBrteddnriiy tiMi WIS no moK fthau tUs : an administration was granted

fc!!f£SiV?^^ of the personal estete of an intestate during the minmty of

^iribMi^L '^ ^"^^"^ ^^^ ^ ^1^>A (b^iog adaught^) had married an
a daoghter, liUBlmid who was of age, whether this determined the admi-

bndlwfaoi^ nistnKtian ? now, the only reason of granting such admini*
age i the ad- stration during the minority of the infants, was^ because none
b not deter- ^ ^ parties interested were capa}>le of administering, on

(4c) Dormer v. Fartescue, 2 Atk. 90. Tidd ▼. Ciarcy t Dick. 71«. JU
383. Savage v. Smalebreokey 1 V«ni. kinson v. Hmw^y 1 Cox 300

De Term. S. Michadis, 1 730. 0i

acooiint of their tender age : but when one of these had mar- J0NC9
ried a husband that was of age^ there was then a party in- .r< ^'|«f
tereated) who was enable of administering ; by which means*^ Stkafforix
as the reason of granting the administration ceased, so must [ 82 ]
the administration also. Cessanie causdj cessat effectus.
That the husband was not only a person capable of adminis-
tering, but the proper person to manage, at least his wife's
share of the personal estate, which seemed aU of it to be now
veisted in him ; but most certainly he had a power of dis-
posing of it: so that the administrator durante tninori cetate
Iia^ no longer the property, nor any right to the possession
thereof. And why should his administration continue, when
there was nothing left for him to administer ? That it might
be thought sufficient for the defendant to shew, that the said
adfninistration was determined, without pointing out to whom
administration should now be granted. However, it wais
conceived, that as the married daughter's sKare of the per-
sonal estate belonged to her husband, so he should have ad-
ministration granted to him of such share ; and that a dif-
ferent administration might be granted to another person
during the minority of the other three infiants, ocf usum ei
cofnmodum of these three infants.

Neither was it material, that this husband who- had mar-
ried the infant daughter was before the court,' and a party to
the bill : for if the administration was determined, then the
plaintiff's right to sue as administrator during minority, &c.
was at an end : of which the court would take notice, and
npt suffer a suit to proceed, where there was no representa-
tion of the personal estate in question, no representatives of
the infants to whom tl^ese securities now in controversy (if
subsisting) did belong: that it was very true, there, were
three children of the ii^testate that were infants under the age
of seventeen, besides the daughter who was married ; but
that would not help the case ; because where an administra- [ 83 ]
tion is granted during the minority of four ii^^ants,. if one of
the infants comes of age, thist does determine the adminis-
tration, 5 Co. JBrudenefs case, I Leon. 7^* agreed by the '
counsel on each side; nay, the case is there put further,
(viz.) that if administration be granted during the minority
of foujr infants, and one of the infants dks, this determines
the administration, in regard it cannot be said there are four
in£^ts, when one of them is dead. Lastly/ thaX Prince's
case, in 5 Co. 29.. was very strong in favour of the deniurrer, -

VOL. III. F •

9S De Term. 8. MichaeUij 1730.

Jowm where there beii^ iin infimt executrix under fleventeen^ ad«»
P ^ nmiisrtration was granted to «/. S.^ during her nunority ; and
fiTEAProBnii the adminifitrator during minority sold a term f(nr years ; ad-
jud^d 8ueh adminialFalinr cefidd noi s^ the term ; and fnr-
tfa^, that the admntstnitkiii determined on Ae executrix's
mairying, if it appeared that the hueband woe of age. So
that one of tiie points then judiekUhf befisre the court, was;
whether Ae adminisCration during liie minority, &c. was not
at an end by the executrix's marrying ^ and it was heU^ that
the marriage of the infant executrix to a man of age^ was a
determination thereof; and the reason g^ven is^ for that the
execntiix had taken a husband, who (as the book says) might
administer as exeentor. Whidi same resolution is men-
tioned and aDovred in OodoipMn^s Orphan* s Legacy 231,
and in 8winbume2i6i and in those books it is said, that
where an infant ^executrix takes a husband, who is of age, it
is the same thing as if die herself were of age. And in I
Vent.^ 103. the same is cited for law by that learned Judge
Mr. Justice Thoisden. So that from the reason of the thing,
and from the authorities which were conceived to be in
point, the adnnnistration durante nUnari iBtaie, and conse-
quently the plaintiff's title to sue, was said to be determined;
[ 84 ] and surdy, in the case of so stale a demand, the plaintiff
ought to be heU-strictly to erery thing, though but matter
of form.

As to the next point, which ^vfas upon the plea of the sta-
tute of limitations with regard to the pretended note for 800f.
from Sir Henry Johnson to the plaintiff's intestate Bromell^
and which was dated so long ago as the 90th of 3fay, 1606,
(abore forty-four years since,) it was admitted, that Sir
One owes a Henry Johnson did by his wDl subject his real estate to the
contr^t^ lix payment of his debts ; yet the six years, and many years
^he* S**Ui ^^<^ *^^ period, having incurred after Sir Henry's having
debt Is tarred; given the said note, and before his making his said will, this
^Sot^v^^ which was a dffbt by simple contract, was said to be barred
charges his by the Statute^ and to have become as no debt, and conse-
payment of all qucfitly neither revived uor uded by Sir Henry'imll; and
his debts, and f]^^^ there was a most manifest difference between this and

dies ; It seems i « y :>

this debt is the casc lately in the House of Lords, in which the Lord
'^^^ Strafford, the now defendant, was appellant against one

Blakeway. It is true, the said Blakeway was a simple con-
tract creditor of Sir Henry Johnson by a sttde note : but it
(a) Vol. 2.373, was suggested in {a) that bill, and made part of the printed

De Term. 8. MichaeUs, 1730, 84

case, that the aaid Sir Henry, within fire yeani before the Joku

makinir of his will, and his death, had paid to the said Blake^ ^^l ^
-i^.j , 1. . Earl of

w€y part of the monies due on the note then m question, Sxrafford*

which was insisted upon as an acknowledgment of the said
debt^ and has alone been adjudged to revive a debt, and to be
evidence of a new promise to pay it. Wherefore (if the alle-
gations were true) that debt was in fact subsisting at the
time of making Sir Henry Johnson's will for payment of his
debts, and consequently must be within the trust notbarrable
by the statute of limitations, though after never so great a
length of time ; which is carrying the statute far enough in
all conscience : but in the present case the debt by simple [ ^^ 1
contract was completely barred by the statute of limitations
before the making of Sir Henry Johnson's will ; consequently,
it was then no debt, neiUier had there been any manner of ex-
cuse offered, whereby to alleviate and take off the objection
of this great length of time. And if it should be contended,
that the statute of limitations only bars the remedy for the
recovery of the debt ; but that the debt in equity and con-
science remains still \ the answer is, that the statute of limit-
ations holds on a presumption that the debt in this great
length of time has been paid and satisfied; but that the party
is by death deprived of his evidence proving the same, which
he could not keep alive ; or by the mislaying of the receipt,
release, or other voucher of payment ; and if the Parliament
in this great length of time presumes a debt to be paid, why
shoold not the courts in fPesiminster^HaU make the like pre-
sumption ? That there is no such thing in law as a right
remediless ; wherever there is a right, the law giving a remedy,
SaUc, 21, 415. Besides, as the remedy, suit, or action in the
present case was admitted to be barred by the statute of
limitations, this made the case as strong, as if the party cre-
ditor, to whom the det^t by simple contract was due, had,
after the six years incurred, whereby the debt was barred,
released to the debtor all actions and suits, both at law and
in equity, which would certainly have barred the debt ; nor
is it credible, if^ after the giving of such a release, the debtor
had made such a will as Sir Henry Johnson had done in the
present case, whereby he had charged his real estate with the
payment of his debts, that the said debt by note would have
been thereby revived.

That it would be a thing of the most mischievous conse- [ B6 ]
quence Imagiiiable, to conMrue the testator's wiU io auch n

86 De Term, 8. Michaelis, 1730.

Jones sense ; and would prove an invitation to creditors of tli0

''• longest standing) after ever so great a length of time (espe-

Straffor ^^^y ^ s^c^ creditors happened to be poor and necessitous)

' to bring in their stale and satisfied debts, in order to a double

payment ; and the present case was still the harder, it not

being the case of an executor, who might be presumed to

have been acquainted with the testator and his affairs^ but of

an administrator, who by his answer had sworn himself an

utter stranger to all of them.

Then, as to the other plea, {viz.) to that part of the bill
which sought satisfaction of the bond out of the real and
personal assets of the testator Sir Henry Johnson^ the de-
fendant had pleaded, that the plaintiff the administrator had
brought an action of debt on this bond in the court of Ex-
chequer, to which action the defendant had pleaded solvit
ad diem ; and that the said action is still depending. Now,
as this was a fair issue tendered on the point of payment,
and to which the matter must at length one time or other
come, if the plaintiff would be so hardy as to venture it, why
should not the court stop here, and prevent further charge
on both sides, by ordering the parties to go to trial upon
such issue ? And if the plea of solvit ad diem were true,
then the debt being once paid, the plaintiff could be entitled
to no discovery of assets or relief; neither could it be any
objection, that the defendant had pleaded doubly in the
action brought in the Exchequer, {viz.) a special plenh ad-
ministravit also, by setting up several debts, ultra qute the
defendant had not assets : for if this were true, the court
could not take any notice of it, in regard they cannot take
notice of any thing but what is contained in the plea ; nor
^ 87 ] could the plaintiff in the principal case be prejudiced thereby,
i^ce he might amend his bill, and charge this plea by the
amended bill, praying a discovery whether these pretended
debts were real and just debts, or not.

With regard to the first point, the Lord ChanceUor and
Jj&rd Chief Justice were pf opinion, that the administration
taken by the plaintiff to Bromell, during the minority of the
four children, donee aliquis eorum should attain to twenty-
one, did not determine on one of these children marrying a
man of full age ; for that the husband of such child had no
right to administer, because not of kin to the intestate ; and
^ when the eldest daughter arrived to twenty-one^ though she
should be married^ yet administration must be granted to her^

De Tern. S. Mkhaelis, 1730, 81^

ftud ROt to her husband. That upon the reason of the thing Jones
the administration must continue, there being no other per- ^ ^' ^
son capable of administering ; neither was the wife's share §^^^^,0^^^
of the personal estate by the marriage become vested in the
husband, for there might be debts which must be satisfied
before it could be known whether the wife had any and what
right thereto : and after that, it could be but a chose en action^
which would not vest absolutely in the (a) husband by the (a) Post, 197.
marriage ; that as to the special administration quoad the y, PaBchall.
wife's share to be granted to the husband, it was plainly im-
practicable ; since it must be a fourth part in specie of all
the personal estate, which might consist of several entire
things, such as horses, cows, and sheep ; and then the hus-
band must have a fourth of every horse^ cow, &c. of the in-
testate; and by the same reason, all bond and simple con*-
tract debts must, as to a fourth part of them, be vested in
the husband, which would render it impossible to put them
in suit, because the husband could not sue for a fourth part [ 88 ]
of them only ; and their lordships strongly inclined against
the opinion reported by the Lord Coke in Princess case,
which says, that where an infant executrix is under seven- vniere an iii«
teen, and an administration is granted ; if such infant execu- ^°^ ^underiT
trix marries an husband of age, the administration is deter- aidmmistntioii
mined : this opinion their lordships strongly inclined agcdnst, Ihe^^ant'"'
the same not being taken notice of in other cotemporary re- marries an
ports, as in 2 ^nd. 132. Cro. Eliz. 71B, 719. and 3 LetK age; this does
278. in all which books Prince's case is reported ; and it is J^^* ^^^^
remarkable, that the author of the book intituled The OfRee tration,byth0
of ExecuUrrs^ p. 213. mentioning this opinimi, a little chancellor*
marvels thereat, considerme (as he observes) " that these andRAYMowo,

,. ., . t . 1 . . , ^ , , , C.J. contrary

tnmgs are numaged m the spiritual court, and by that law, to the opinion
•* [the canon] which intermeddles not with the husband in iJemM^i'iiaTe
" the wife's case, and since by that law, and not our com- ^f«n cxtraju-
** mo» law, comes in this limitation of seventeen years. He ^t taken no-
" adds, that he has seen that case otherwise reported in this ^^^^ ^^^^ ^'

. ' , '^ temporary re-

pomt. porters.

Besides, that part of the case was at least an extrajudicial
opinion not necessary to be determined, the principal ques-
tion being only whether such a special administrator could
assign over a term for years which belonged to the testator ?
And resolved he could not, which certainly is good law..
However, taking the above-mentioned point in Princp's case
to be law, yet it differed, they said^ from the case now be-

88 De Term. 8. Michadis, ITSO.

Jokes fore the court ; for where an administration determines by
^- tiie marriage of an infeint executrix to one of age^ in the
Strafforh. '""'^® manner as if the executrix herself were of age, there
is then a certain known person to administer, (to wit) the
feme infant^ (the husband being incapable of proving the
[ 89 ] will) and it is the case but of one minor; whereas in the
principal case it could not be known who was to be the ad-
ministrator, or whether there was any other more proper for
that office than the person already appointed dtiring the
minority; for the husband being not entitled to have the
administration granted to him, it was in the discretion of the
ordinary to grant it to whom he pleased, this sort of admi-
So if admlnis- nistration (a) not being within the statute ; and they further
iration be held. Contrary to one of the resolutions above-mentioned in

granteci during ' ^

tbeminorityof Brudenel's case, that if administration should be eranted
uiYone^ies ; during the nunority of four infants, one of whom should die
this don't de- before he comes to aee ; this would not determine the ad-

temune the • • • o *

administni- ministration ; for the living infants would not be of age, and
to^Sic oSn^ the other dying during his infiancy, and not being in essey
in5Co. Brude- would be as out of the case.

(a) ?Vent2i9. Secondly j Touching the plea of the statute of limitations,
perHale^C.j. where the testator, after six years incurred, makes his will,
and charges his lands with the payment of his dd>t8 ; the
court observed, it had been held that sach will revives [A]
the debt, in regard the same, though the six years are
passed, continues still to be a debt in conscience ; and a de-
fendant may, if he pleases, waive the benefit oi the statute.
However, it having in a former cause of the Lord Strqffbrd*8y
brought before the House of Lords on a like point, been
[ 90 ] ordered, that the plea should stand for an answer ; the like
order was made in the principal case. (1) And,

In relation to the third point ; the Lord Clianeellor and

[A] QuarCj If a man were to dcTise his personal estate in trust to pay his
debts, whether would this, as creating a trust, revive a debt barred by the sta-
tute ; or would not such devise be merely void, as saying no more than the law
of course says, (viz.) that a man's personal estates shall pay his debU ? And if
the testator should say that his personal estate shall not be liable to pay his debts,
or that his book debts shall be paid thereout before his bonds, such will would be
plainly void.

(1) Reg, Lib. A. 1730. fol. 515. But 373) : but as to this point vide Anon.

no farther proceedings appear to have 1 Salk. 154. Gojlon v. Milly 2 Vem.

been bad either in this cause or in ^toite- 141. Andrews v. Brown. Pre. Cha.

way V. Eari of Strafford, (ante, 2 vol. 385. Faughan v. ffiry, Mos. W5.

i)e Term. 8, MkhaeUs, 1790.

were dear^ that the plea ought to oe over-
ruled, as being, in effect, only a plea of another action de-
pending in) another court for the same thing; and that
therefore the plaintiff ought to make his election p3] in
what court he would sue, which election no plaintiff is bound
to make, until the defendant has answered. («)

thiiif, he iHll be nit to make bif eleetloo in «9iich conrtlie will proceed ; but
erer make sacli election till the defendant lias answered.

Joins

Eurlof
Strafford*

Where the
plaintiff Buea
both at law
and in equity
for the lame
need not liow-

[B] The order for making an ekcilon recites onlj, that the plaintiff prose*
cates the defendant at law and in equity for one and the same matter, bo that
the defendant is doubly vexed ; wherefore it provides that the plaintiff, his clerk
in court and attorney at law, hsTing n<*ice of the order, d^ within eight days
after such notice make his election in which court he wiU proceed ; and if he
elects to proceed in this court (the Chancery) then the proceedings at law aae
by that order to be stayed by injunction. But if the plaintiff sh^ll elect to pro-
ceed at law, or in detank of such election by the time aforesaid, his bill is to be
dismissed with costs. And note ; if one inkes a tpediU election to proceed at
law, as to part, and in equity as to other part ; with recard to what the plaintiff
In equity elects to proceed at law, his bill ought to be dismissed with costs. By
Sir Joieph Jekyily Master of the Rolls, Michaelmas 17^5. Ananjftmu.^^)

JLegatUck ▼• Cowne^ Mos. 391. Lacon
y« 3 Atk« 107. TVumon t.

Fentan^ Cowp. M8. Oughterhnjf t«
Earl of Paw^Sj Amb. 231. («)

(x) A devise of real estate for pay-
ment of debts, does not let in a debt
upon which the statute had operated
before the testator's death. Burke v.
Jonesy 2 Y. and B. 275. EjHeeuUrs
of Fergus v. Gorey 1 Sch. and Lef.
107. ISs parte Dewdnejfj and Ex
parte Seamany 15 Yes. 497.

(^> The motioii to put a plaintiff to
his election, is one of course. Anon.
1 Yes. J. 91. ; and upon plaintiff's
moving to dbcharge that order, a refer-
ence is made to the itisster to inquire
whether the suits are for the same
matter. Bullen v. Butcher^ 2 Dick.
558. BovdY* Heinzelmany 1 Y. and B.
381. Mouteiey v. Basnety in note to
Boyd V. Hemzeiman : but where it is
not denied that the suits are for the
same matter, Young v. Lucasy 1 Y.
and B. 383. note (a). Hogue v.
Cmiisy I J. mid W. 449 ; or where

there b no difficulty in deoidiiig thstt
qaestion if disputed^ the court wiU
decide without the reference. Mills v.
FVy, li Yes. 277. Coop. l&T. 3 Y.
aad B. 9« The order to elect stays
ali proceedings at law and in equity,
unless the court makes a special order
to the contrary. BarkervMumaresguCy

2 Atk. 119. Hogue v. Curtis y ub. sup.
Carwick v. Youngy 2 Swan. 239. Elec-
tion will be ordered between proceed-
ings here and in a foreign court.
Pieters v. l%ompsori, CJoop. 294.

(s) And it is irregular to obtain the
order to elect, until the time for filing
exceptions has expired. Browne v.
PoyntZy 3 Mad. 24. ; and see Coupland
V. Bradocky 6 Mad. 14. ; and a plea is
not an answer lor the purpose of patting
a plaintiff to election. Fisher v. Meey

3 Mer. 45. Faughan v. tVehky Mos.
210. Jnon. Mos. 304.

91 De Term. S. Hilarii, 1730.

i>K

TERM. S. HILARII, 1730.

Case 20. HARRIS v. INGLEDEW.

Sir Joseph This bill was brought by the simple contract creditors of

Jektll, JFilliarh Ingledew^ to compel a sale of the real estate of the

th^Il'^lk^ swd William Ingledew, for payment of his debts, he having

2 Ea c Ab ^^^ ^ ^^^ ^ ^^^® cffcct : '* As to all my woridly estate, " my

f 4. pi. 26. 233. '' debts being first satisfied, I devise the same as followB«"

3!'462. plfis!** Then he proceeded to demise part of his estate, being free-

768. pi. 6. hold, to his brother in fee, to whom also he bequeathed a term

as to all my ' for years. Other part being copyhold, he devised to ji. in

^'^^d' toT^' fee, other part of his freehold to jB., and the remaining part

ing first paid, to C in fee ; after which he died without issue, leaving his

th^reiustate brother John Ingledetv his heir, who having, on the testator's

is liable to the death, entered on the freehold lands devised to him, and aliio

thing'being On the copyhold premises, as not having been surrendered to

d^te il^Jdd! ^^ ^®® ^^ ^^® ^^^' ™^^^ ^^ ^^' whereby he devised aU his
estate real and personal to his wife, and died leaving a son.

r 92 1 The widow of John Ingledetv the brother, and her son^

being the nephew and heir of the first testator, joined in a
sale of several of these lands to several persons, for valuable
considerations ; and the simple contract creditors now bring-
ing their bill against the several devisees of the premises, and
also against the purchasers, in order that the several lands
might be sold for the satisfaction of their demands, the will
was proved, but John Ingledew, the nephew and heir of the
first testator, was not made a defendant to the bill,
in a devise of ^P^" which it was insisted, that the heur at law ought to
lands to pay be a party, it being ever done in like cases ; that the bill
creditorsbring being for a salc, if the heir was before the court, the evidence
* T*a Mie **thc ^ ^^® ^^ would be perpetuated ; but in case he should not
heir is gene- be a party, a decree for sale of the estate would be vain : for

rally to be

made a party. Sccus, in case of a trust created by deed to pay debts.

De Term. 6. HU. l7S0. 93

M ode ulrould buy^ at least he would not give half the valii^ Harris
for it : whereas, should the heir be a defendant, this will ^ ^'
charging the lands with payment of the debts, the heir
would be decreed to join ; that the general practice in cases
where h will of land is proved, is, to declare the will well
proved ; that is, well proved against the heir ; for it cannot
be said to be proved against any one else. Atid suppose these
lands should be sold by the devisees, pursuant to the decree,
and afterwards the heir should sue for the estate, and re-
cover $ here would be a ptirchaser under a decree, evicted
notwithstanding, for want of the plaintiff's having made the
heir a party : iand yet the court ought not to su£fer any thing
to happen to the prejudice of those, who are to be purchasers
tinder its decrees.

To which it was answered, that the descent was broke by [9Sl
the devise, and the estate being devised away from the heir
at law, he was no more interested therein than any stranger;
that in ca^e lands are by a deed conveyed to trustees to s€fll>
and afterwards the grantor dies, unless the heir is to have • • %
the surplus, he need not be a party to the bill for compelling
a 3ale«

Master of the RolU. This seems a material objection ;
for since the sale of the estate must afiEect all the devisees in
proportion, and as the estate would not, Without the heir
being a party to the decree, sell for near the value, this might
be a wrong to all the devisees, and occasion more of their
lands to be sold than would perhaps be otherwise necessary.
With regard to what has been urged, that where lands are Where a Utt
conveyed by deed to trustees to sell, the heir, unless entitled pro^?^i^
to the surplus, need not be a party to a bill that prays a sale; "^» *|^ ■"*•

it must be observed^ that the proof of a will is attended with t«(pr mtttbe
more solemnity than that of a rfeed; the former being sup- f,J^cJi?o?
posed to be made when the testator is in extremis^ and there- a deed of trust
fore in equity it is necessary to prove the sanity^ which is all ^J^^ ^f ddMK
presumed in the case of the latter: also a deed may be The court ne-
proved viva voce at tiie healing ; but no such order can be ^1^2" *
made for proving a will (or) 5 the reason is, because here proredrira
more is to be proved than barely the execution ; for instance, hearing, as
you must prove, that there were three witnesses^ and. that thcydoadeed.
these subscribed their names in the presence of the testator;

(x) Eade y.Lingood, 1 Atk. 303. Lake v. Skinner^ 1 Jac« & W. 15.
Turner v. Burleighj 17 Ves. 354.

9a Be Term. 8. HU 1790.

Habkis wUdi holds etill stroiiger in tiie pieaent caae, wheie two
^ wiUs are to be proved; oamely^ the will of the first testator

ImLioBw. ffifii^j^ Ingleda^y and afterwards that of John Ihgledew.

But after all^ considering that JFilUam IngJedew, the fin^
[ 94 ] testator, had been dead ever since December ^ 1719, and that
the freehold lands had been quietly enjpyed under the wiily
his Honour did decree a sale without the heir bdng n
party (y) ; but said, he would stop passing the decree, in
case the defendant's counsel should be able to shew, wher^
in the like instance, the court ever refused to make a decree
without making the heir a party.

Secondly J In this case, erne of the defendants having pur-
chased a term for years, and also part of the firedicdd estate
that had belonged to the testator William IngledfiWj he
pleaded, that he was a purdiaser for a full and valuable con-
uderation, (shewing the sum, and that it was to the fidl
value of the estates) but omitted in his plea to deny notice(s)
of the wiU of William Ingledew.
A defendant in And for the plea it was argued, that the plaintiff having
luipieaof a j^oUed to the plea, he had admitted it to begood; butjoined

porchase for a *^ , * / . . 4. ^_ • ^^ • j j 1. j

Taiuabkconsi- issue thcreon, msisting it was not true m tact; maeeo, naa
Sd^°no"S he set it down to be argued, it would then have beenagood
if the plaintiff' exception thereto, that the defendant had not deoded wlice :
Sf^fnLf butsince the plaintiff had not thought fit so to do, but h«l
^^ ^hb'^^ replied to the plea, all that was incumbent on the deiendant
chase; anditia was, to prove what he had pleaded ; wfaid^ if he shonUl be
KloSSSff able to do, the biU, as against him, must be dismissed witk
provea notice 5 costs. Besides, otherwise the defendant might be tridsed by
l^tttir! oAi the plaintiff, who having found, that the defendant had made
dM not*^* , a slip in his plea, might decline arguing it, and reply to it.
down the plea In which case the defendant would be without remedy; for
i^^^f^ he could do no more than prove his plea; whereas, if su<A
k^nld hare pi^^ had been set down to be argued, on its being ovemd^d,
nded!^^ the defendant might stiU have helped himself, by putting aH

his defence in his answer.

On the contrary it was said, that when every one sees here

is a lease for years, which of course is liable to pay debts by
' simple contract, and to which a purchaser cannot possaily

have any title but by the wiD, it was to be presumed the

court would hwdly shut their eyes, but p^mit the hoaesfc

(y) Anon. 1 Ves. Jan. «. Graham (s) See post, 244, n. (F).
V, Graham^ 1 Ves. Jun. 276.

De Term. S. Hil. V7SO. 95

cieditors to fbllow the assets wherever they csn find them. Hmmbxu
Also this would be a prejudice to the devisees c^ the real ^«

estate^ should the term not be implied to the payment of ^'°^'^'^*
debts, because more of the lands ^yiaed must be sold than
otherwise need be.

Master of the Bolls. The constant course is, in case a
plea be replied to, that the defendant need only prove his
plea : and here it is the plaintiffs own CEUilt, for he had it
in his election to have set it down to be argued. Wherefore,
if the defendant proves what he has pleaded, the bill is to be
dismissed, as against him, with costs. But with rq;ard to
ike objection, that the devisees of the land will suffsr by this,
in that more of their lands must now be sold, this will not
prevent the devisees, or any of them, from bringing their
bill to compel an application of this lease, in the first place,
to the payment of tiieir debts, as being part of the personal

Thirdly y It was contended, that the real estate of the tes-
tator, WiiUam Ingledew, was not by his will charged with
the payment of debts; for though it was said, that as to the
testate's worldly estate, his debts being first satisfied, he
devised the same, &c. though the testator did say his debts
should be first satisfied, yet he did not say hia debts should [ 96 ]
be charged on his land, or real estate.

But the Master of the Rolls thought it to be very dear,
that in this case no land, nor any part of the testator's worldly
estate, was devised until after his debts paid, consequently
that the land was charged ; for which he cited 1 Fern. 45.
Newman v. Johnson, 2 Fern. 768. Trott v. Femon; and
he thought it would have been sufficient, though the word
first had been omitted. (1)

(1) See also Bawdier v. Smithy Pre. Kingy post, 36«. Ilatton v. NichoUy

Cha. 264. Beachcroft v. Beachcrofly Ca. tamp. Tal. 110. EnrlofGodolphin

2 Vera. 690. Daoi$ v. Gardiner^ &nte, v. Penneck, 2 Vez. 271. Thomas v.

2 vol. 190. Legh v. Earl of War- Britnelly 2 Vez. 313.(s)
ringiony 4 Bro. P. C. 90. King v.

(a) Kighilev v. Kighiley^ 2 Vea. lag also devisees, it creates no charg^ on.

Jan. 328. W/Ahhm v- CW/y, 3 V^s^ the real estate. Brydges v. Landen^

545. King V. Demson^ 1 V. & & 274. cited in WilUoms v. Lhitty, ub. sup.

Noel V. Weston^ 2 V. & B. 269. CUf- KeeUng v. Brown^ 5 Ves. 359. FmeU

Jtrdv. Lewisy 6 Mad. 83. But if tbe v. Robims, 7 Ves. 209. Sanderson v.

direction for payment of debts is con* fVharton, 8 Price ($80.
fined to payment by executors^ not be-

9« De Term. S. HU. 17S0.

Harris Fourthly ^ It was argued that admitting the freehold of th«

^ testator to be charged with paymept of debts, yet the copy-

* hold which was not surrendered to the use of the will, was

chains all liU not chaigcd, that not being in law devisable ; and though it

wkh bM?^ta ^^ heen surrendered to the use of the will, yet even in sucb

and dies seised case it would have passed by the surrender, not by the will ;

copyhold es^'' ^^^ which reason a copyhold will pass, though by a will thafc

tales, which h^g not three witnesses to it. So if I were to devise all mr

he particularly , _

disposes of by real estate, though a copyhold may, in some sense, be deemed

^p^old^^ a real estate, as it descends to the heir, and does not go to

though not executors, yet the copyhold would not pass in that case,

the use o7the because the intent of such will must be to devise an estate,

wui,shaaiyet that is in its nature devisable.

be applied to

the payment of However, the Master of the Rolls was of opinion, that in
pam ¥Kththe ^^^ principal case the copyhold, as well as freehold, was well
fireehold. charged with the debts; since all* the copyhold of the tes-
tator was by express words devised either to the heirs, or to
those that were not his heirs. So that it appears the tes-
tator took the copyhold to be part of his wordly estate, all
which is by the will charged with the payment of his debts*
[ 97 ] And it had been sufficient, if the testator had only said, " I
^^ charge my copyhold land with the payment of my debts ;"
in which case equity would have supplied the want of a sur-
render. [A]

Fifthly J Belt then it was insisted for the defendant^ that
gpranting the copyhold lands were made liable by the will to^
the payment of debts, yet that ought not to be,.tiU all the
freehold lands had- been first applied; for they ought not to
come in pari passu with the freehold lands, because these are
devisable at li^w, which the others are not ; and equity must
first intervene, and supply the want of a surrender, before
copyhold lands can be liable, whereas a freehold is devisable
and chargeable by the testator by the will only.

To which it was answered, that as this wiU was penned^
the freehold was not devised, but only charged with the debts^
which amounted to no more than an equitable charge, as to

[A] This the reporter admits to be so : but observes^ if it were bat an equi-
table Charge, and the legal estate of the copyhold had descended to the heir,
that would have made it necessary that the heir should be a party, because other-
wise the legal estate of the copyhold could not be conveyed to a purchaser. Bat
if it had appeared, (which he thinks did not) that the heir at law had since the
testator's death conveyed away all the copyhold estate^ then indeed, the grantee
of the heir being capable of confe/ing to the purchaser, it might not be necessary
to make the heir a party. ,

De Term. 8. Mil. 1730.

the freehold as well as cc^yhold; and the copyhold being
mentioned in the will, it was the intention of the testator,
that they should be charged equally and in proportion.

Though for the defendant it was replied, that let a copy-
hold be neyer so expressly devised, yet, unless it be for pay-
ment of debts, a charity, or by way of provision for a wife,(l)
or children, (which cases did not any way concern the pre-
sent) equity will not supply the want of a surrender. That
this is never done in favour of a devisee 5 consequently, there
eould be no reason to expect it in favour of the devisees of
the freehold estates in the principal case, since it did not as
yet appear, but that these estates, if all sold, would be suffi-
cient to discharge the debts; and therefoi^ the copyhold
ought not to be charged pari passu. Quod nota»

Notwithstanding which, his Honor inclined, that the copy-
hold fihould be charged {2) with the debts pari passu with
the freehold, by reason the former were as expressly devised
by the wiU as the latter, and all the testator's worldly estate
wato subjected to the payment of his debts. But since it did
not as yet appear, that the personal estate would not be suffi-
cient to pay the debts, this point, whether the copyhold
should contribute pari passu, Sfc. was reserved tiU after the
account taken. But,

Habris

Ingledew.

[98]

O) Vide WaUs v. BuUas^ ante, I

voL eo.

(2) Bat this part of the case of HoT'
rts V. Ingledew is not now received as
the law of the Courts of Equity, which
supply the want of a surrender of a
copyhold estate in favour of creditors,
so far only as may appear necessary
f»r the payment of die debts ; and, con-
sequently, while any freehold estate
remains applicable to that purpose, the
want of the surrender of the copyhold
shall not be supplied, notwithstanding
the express intention of the testator to
charge the copyhold rateably with, or

in preference to, the freehold. Drake
V. Robinson^ ante, 1 vol. 443. Hask'
wood V. Pope^ post, 322. MdUabar v.
Mallabar, Ca. temp. Tal. 78. Coombes
V. Gibson^ 1 Bro. C. C. 273. Hel^
iierv. Tarrant, Ca. temp. Tal. 3d edit.
288. (note), (x) But this is to be un-
derstood of the legal estate only, for an
equitable estate of copyhold will pass
by such devise wUhout surrender. Car
V. ElUson^ 3 Atk. 73. TiMiell v. Page^
Barnard. 9. Allen v. Foulton, 1 Vez.
121. Macnamara v. Jones ^ 1 Bro. C.
C- 481. (jf)

(jt) Lindopp V. Eborallj 3 Bro. C. C.
188. Groacock v. Smithj 2 Cox 397.
Milboume v. Milboumej 1 Cox 247.
Judd yr. Pratt, 13 Ves. 168. 16 Ves.
394. Kidney v. Coussmaker, 12 Ves.
136.

(jf) But now by stat. 55 Geo. 3.

c. 192. copyhold estates yrill pass by
devise or appointment without a sur-
render to the use of the will, in all
cases where they would have passed
by devise or appointment with such
surrender.

96 De Term. 8. HU. 1730.

HAmmis Sixihfy, Hereupcm, on behalf of the creditors, it was repre^

^ seated to be hard, that these should be obliged to wait until

the acooont was taken^ and until the Master should have
mfSS^wH^ certified how much would be the proportion that each de-
>gf^|^j°y visee or each purchaser was to contribute towards their
vMspnttoA. BatJsfaciion. For that the creditors ou^t to be at liberty to
tolL&c!^^ come upon any part of the freehold estate; after which the

otdStancuk- several devisees or pnrdiaaers might iq[iportion the chai^

imiof^e amongst themselves; and as to the freehold that had been

Sr!!ff4^^ ^^ ^® creditora were wiUing to take the mon^ from the

ceftiflcd wfafti heir or devisees, who had sold, and so give the purchasers

b, iSI^Mdk ^^ tumble. '

deitee uu> *Cur^: That will mdeed make the matter more easy^ but
iviuiftlieMas- yet till the account shall have been taken, and it be known
S^ftf^^tfl ^*"^* *^® proportion is that each devisee is to pay, the credi-
wOi ezhanst tors must wait notwithstanding; for they must not be left
cftete, thtn ^ liberty to take the whole from some of the devisees, and
^^''mSS ^^ P*''* '^^^*™ others; which would be oppressive. And if
■guBst anj the whole estate of any of the devisees be not HaUe, then the
fo t^flwl^e. "^^^^^ purchase money, for which any port of the premisses
r «09 1 "^^^ ^^9 ^^ i^ot be liable. But if it shall be reported by
the Master, that the whole of the freehcdd lands will be in-
sufficient for payment of the debts, then the creditDiB may
proceed against any one devisee for the whc^, in case I
should be of opinion, that the copyhold ought not to be
charged pari passu : but if I shall continue to think as I do
at present, in such case, the creditors must wait until the
proportion is settled, what the owner of each is to contribute,
aa well with regard to the copyhold as the freehold. [B]

£B] In this case the Master of the Rolls did not alter his opinioii) it appear-
ing by the Register's book, that the wiU of the testator Wiikam Ingledew was
declared to be well proved, and that the freehold and copyhc^d esUtes partico-
lariy devised by his will were liable to the payment of his debts port pas$u*
March 10, 173a(l) •

(1) Reg. Lib. A. 1730. fol. 246.— to the prindple of Noys v. MordaunU

In the argument of HeUier v. Tarrant^ 2 Vera. 581. Streatfield v. Streatfield,

nb. sap. the case of Harris v. Ingledew Ca. temp. Talb. 176, &c) but it does

was treated as a case, in which the heir not appear by the pleadings, or by the

^ ^^ ^^ bound to make good the words of the decree, that the case was

sorrender of the copyhold by hb elec- pat upon that ground.
tuMi to take under the will (according

HOaty Vaeatwn, 1730. ' 90

WITTER V. WITTER. Case 41.

Hilary VacaUon, 17S0. ^S^r^l

RoBBRT WiTTBA^ poBsessed of a term for ninety-nine years, An executor in
of lands in the county of Cheater, if three lives, or any of StV? a teiSi
them shoold so long live, held *bf the late Earl lUvers, made ^or 99 ^rean,
^. his executor, and by his Trill devised the term to his in- on three u?ef ,

&nt nephew^ John fFUier, and died, his own life beii^ one ^^^^'^^
of the three Uvea. The executor applied < to the Earl JRivets new but for
to renew, by adding a third life; and there was some slight i^^^^^.
proof tiist tiie Earl had refpsed to make my more leases for pi^es with th«
years of hia tenements in lease, but had changed them to changes the
lives, in order to^make votes in choosing members of par- ^^.^^n^
lianmit^ when he was in the administration. So that in the infuit'i dyin^
present case tiie ezccntor of Mobert fFUier the lessee took rntesuae';^
a new lease, in the name of a trustee, to him and his heirs f^'^^^^
for Arcto lives, (m.) that of the infant, and the two old nistrator» and
Uteft ; andUus was in trust for the fai&nt and his heirs. h^.^'^

The in£snt died above the age ef fourteen .and under r ^iqq 1
tvrenty-one, unmarried and intestate: whereupon the ques-
tion was, who shodld be entitled to this lease, his heir or
administrator ?

It was insisted, that the administrator of the infant was Tmateeeaif
entitled 5 and that it should not be m the breast of any exe- ^^^j^Jf*^
cutor or trustee to alter the nature of the trust estate, any estate by tom-
more than it was in the election of a [C] guardian to change jJIfe'h^^or a
the personal estate by investing it in lands : since this would JeaactoryeMi
be to give an absolute power of disposing of and altering the bbid, and •
right and property at the lease to one who was but a baare ««▼«"••
trustee; that if the court had been applied to for leave to do
this, they would never have granted it without a provision,
that in case the infant should die during his infancy, the pur-
chase should Hot turn to the prejudice of the repr^efttatives
of his personal estate : also, that this would be injurious to [' lOl 1
the infant himself^ who, if it had continued^ as originally it

• • •

[C] See for this purpose the case' of Ten^ T. Terry, Snd Raggei^ Pre. in
Chan. 273. . i

101

.Hilory Vacation, 1730.

Witter
Witter,

was, a lease for years, might have dei4sed it at fourteen [D] ;
whereas being turned into a freehold descendible, it could
not be devised by him until his age of twenty- one.

On the other side it was represented as likely to prove
very detrimental to an infant, if, in a case where the lord
would not renew but for lives, the executor should not be
enabled to comply with this ; because the other two lives
might drop during the infant's life ; and* the case would be
the same if there were but one life in beiog ; and then the
infant, instead of being deprived of the power of devising (as
had been objected) might have no estate to devise ; that the
putting the infant's life into' the lease must be for the benefit
of the infant, and of him only 5 and as to what had been
mentioned of turning an infant's personal into a r^ estate,
that seemed to be a thing not necessary, but the renewal of
the lease was a matter of absolute necessity.

Licrd Chancellor. This renewed lease, though for fives,
shall follow the nattire of the original one, and go to the
executors or administrators of the infant, as that should have
done. If the fact had been (which has not been fully proved)
that the Lord Rivers would not have made any other than
a descendible lease for three lives, this might and ought (1)
to have /been declared in trust for the benefit of the execu-
tors and administrators of the infant, if he should die during
his infancy. Now, though this trust be not declared, yet it

[D] In the case of the Earl of Wmchebea v. Norclffey I Yem. 403. 435.
this observation appears to have been first made bj Serjeant (afterwards lord
commissioner) RawUnsony and to have great stress laid upon it bj the Lord
Chancellor Jefferys.

A lease re-
newed by a
gaardian for
an infant's be-
nefit shall
follow the na-
ture of the ori-
ginal lease.

(1) Tide Moion v. Day, Pre. Cha.
319. Pierson v. Shore^ 1 Atk. 480.
and in general a guardian or trustee
shall not alter the nature of the infant's
property, so as to change the right of
SQCcession to it in case of the infant's
death, unless by some act manifestly for

the advantage of the infant at the time.
Rook V. fVarthj 1 Vez. 461. Tullit v.
TulUt, Amb. 370. InwoodY. Twyne^
Amb. 417.(«) Vernon v. Vemony cited
in Ex parte Bromfieldy 3 Bro. C. C.
613. (y)

(«) S. C. a Eden 148.

Cy) S. C. 1 Ves. Jun. 463. Oxenden
V. VompUm^ 4 Bro. C. C. 234. 2 Yes.
Jon. 69. Nor so as to affect the power
of the infant over his property even
daring his infimcy. Ware v. Polhilly

U Ves. 257. Ex parte Phittq^iy 19
Ves. 118. See also Athburton v. Aih*
burton, 6 Yes. 6. fVebb v. Shaftesbury ^
6 Mad. 100. Langley y. Sneyd^ 1 Sim.
& St 46.

Hilary Vacation, 1730./ 102

is in equity implied, since the renewed lease, though for Witter

lives, comes in the place and stead of the original lease ^*

which was for years. In consequence of which his Lordship .^ ^^ ^

declared, that the same should be liable to a distribution ac-* autre vie is

cording to the statute, saying, that though the spiritual f"equuj^ *

court cannot intermeddle with a freehold to distribute [E] it, though not in
yet it doth not follow but that this court may enforce such a court,
distribution, (2)

f E] See Salk. 464. Oldham r. Pickerings and the note at the end of the case
of Duke of Devon v. Atkins j vol. % 382.; but more particularly the statute of 14
Geo. 2. whereby an estate pur autre vie heins; undevised, or in part applied to
the payment of debts according to the statute of frauds, shall be distributed in the
same manner as personal estate.

(2) Reg. Lib. B. 1730. foK 213. by the name of tVitier t. Cotq).

VOL, III,

10» Ah T«r»t. Pas(fh)i, nil

TERM. PASCH^, 1731

Caae 22. EX PARTE SIR RICHARD GROSVENOR.

Lord Chan- Sift R'ichArd Grosvsnor, Upon iBling articles in Chanceiy,

cellor Kino, obtained a supplicavit against Mrs. , who being taken

On?uSr^n "P^° ^® writ, was carried to Newgate^ where she had con-

a tnppllcaTit, tinned near thirteen months. And now it was moved that

in pruon a she might be discharged, insisting, that it was the course of

^^"^ebMh *"*' ^^ King's Bench, if a supplicavit be granted against any one,

threatening, and the party taken lipon it continues in prison for a year and

diKharg^ a day, without any fresh threatening or misbehaviour having

been offered by or on behalf of the party agunst whom the

supplicavit was granted ; that he ought to be discharged,

and that it was so in the case of comn^tments for any breach

of the peace.

ZfOrd Chancellor. Nothing can be more oppressive than
an indefinite imprisonment ; and it seems a reasonable prac-
tice in the King's Bench, if nothing has been offered either
by threatemng or other misbehaviour, within a year and a
[ 104 ] day after the taking up of the party, by him or on his behalf.
Notice of mo- that he ought to be discharged. Accordingly the court was
one ^113-^^ ™^^^^ ^ ^*^® granted the motion in the principal case : but
lowed to act the notice of motion being given by A. B. the solicitor for
TOt^^Ju*^'* the woman that was committed, and he not being a solicitor
admitted in chancery, the court would not look upon this as
notice; and the party undertaking to give another notice
against the first day of the term, the motion was put off till
then, at which time the said Mrs, ' moved it again,

and it was ordered that she should be discharged upon enter-
ing into a recognizance before a Master in 100/. with two
sureties in 50/. each, to keep the peace ; and the Master was
directed to be easy and not strict as to the abilities of the

Dm Term. Pa$elue. 1731. IM

MrBtieB, the court having: regard to her kmg impriaon- SirRioRAhD
uenL (1) Grootenor

— ■ ■ ■ ■— ■— — i— — ^— ^

(1) Vide Baynum v. Baynumy Amb. 63. Ex parte Kingj Amb. 240, 333.(«)

(jt) And see Ckmerinfs C9$ey ante, % yoI. 902.

FRANCIS SHELDON, ESQ. v. MR. JUSTICE Case 23.

FORTESCUE ALAND ET AL*.

A BILL was brought by the administrator of Sir WUliam Lord Chan-
Darmer^ Bart, a lunatic, against the administrator of Mi. cellor Kino.
Justice JDomiar, to have an account of the personal estate, l^'^h^^'
and of the rents and profits of the real estate of the lunatic, 281. pi. a!
received in his life-time by Mr. Justice jDonner, who was the ^ed^h^cpro-
4;onimittee of the lunatic's estate ; shewing, that Sir WUliam fits of the lu-
JDormer was seised in fee of divers numors and lands in the ^ Vhe'com-
couhties of Bucks and Gloucester, of 500/. per annum, and "^^^« ^^ ***•

mftintcnanco

tpossessed of a considerable personal estate, and in 1602, be- of hu person.
came, and was by inquisition found, a lunatic ; and that the ^^ mT«i-
custody of his estate was gpranted to Mr. Justice Dormer, ministrator
and that of his person * to Sir Robert Jenkmson. The bill {^^^ Mcount
was also to be relieved against, and to set aside, several or- 2^ ^^^ pF^

fits ; the dc-

ders of the Court of Chancery, whereby it was ordered, that fendont th«
Mr. Justice Dormer should be allowed the rents and profits S^^S'tSs
of the lunatic's estate for the maintenance of the lunatic's order of court
person, and the care and management of bis estate. To anceof thcT'
^hich purpose the bill set forth, that after the inquisition f^f^^f^^^.
ibund, to the end the court might judge what was a proper teoance ; tho
allowance for the maintenance of the lunatic, it was directed^ ^^tMid fc^an
that the Master should look into the value of the estate and answer: but
the incumbrances thereon : that, pursuant to such order, the clai^^they^*
Master made a report of the yearly value of the estate, and ^??^^ ?o' •

* • . relieve in BQCh

the charge of the physicians attending the lunatic, and the case without
-disbursements of Mr Justice Dormer relating to the estate ; <^'' ^^*
and this account was signed by Mr. Sheldon, who married ^ ^

the sister and next presumptive heir of the lunatic; that
thereupon the Lord Sommers, by order of the IGlh of June,
16999 with the consent of the said Mr, Sheldon, ordered*

106 De Term. Pascha, 1731 .

Shecdon that the profits of the lunatic's estate should be allowed to
^ ^* Mr. Justice Dormer^ for tlie maintenance of the lunatic, and

K ORTESCUE

Alakd. ^^ ^'^^ ^^^ management of his estate^ deducting only 200/.
per annum thereout for the paying off incumbrances upon
the estate, and which in fact have since been paid off; that
the last order had been continued or revived upon every
demise of the crown, and by the succeeding Lord Chancellor
or Lord Keeper of the Great Seal for the time being. And
the bill further shewed, that Mr. Justice Dormery and the
lunatic's sister Susannah^ the wife of Sheldon^ seven days
before the making of the above-mentioned order by the Lord
Sonimers, (viz.) on the 9th d^y of June, 16^9, did enter into
articles, whereby Sheldon covenanted for himself, his wife^
and his children bom, or to be born, that they would be aid-
[ 106 ] ing to the Judge, who should have the Buckhlkghamskhre
estate allowed to him for the maintenance of the lunatic, and
be permitted to take up his bond, which he had given to ac-
count. And Mr. Justice Dormer covenanted, that he would
be aiding and assisting to Sheldon and his wife, who were to
have the Gloucestershire estate of the lunatic without account^
save only that out of the profits thereof a debt of 550/. on the
Gloucestershire estate should be paid off.

The defendant, Mr. Justice Fortescue, and his Lady pleaded,
that King William and Queen Mary^ by virtue of their un-
doubted prerogative, by their royal sign manual directed to
Sir John Sommersj Knight, then Lord Keeper of the great
seal of England, reciting, that the care of idiots and lunatics
doth of right belong to the Crown, did grant to the said Sir
John Sommers full power and authority, without any further
warrant, to give order and direction for preparing of grants
for the custody or commitment of the estates or persons of
lunatics or idiots, according to the rules of law, and the use
and practice in like cases,, as he should judge meet. They
then pleaded, that Sir JFilliam Dormer was by inquisition
found a lunatic, and the inquisition returned into the petty
bag ; and they pleaded the several orders under the several
Lord Chancellors and Lord Keepers for the time being, upon
every demise of the Crown, whereby the custody of the estate
of the lunatic was committed to Mr. Justice Dormer ; and
the orders whereby the Master was to take an account of the
estate of the lunatic and of its incumbrances, and the
Master's report thereupon ; and in particular, tiie order of
the l€th of June, 16^, made by the Lord Sommers by thie

De Term. PmcIub, 1731. lOT

content of Mr. Sheldon^ that 200/. pet annum Out of the Sheldon
estate should be applied towards the payment of the incum- v.

brances affecting the lunatic's estate, the residue to be al- Fortescue
lowed towards the maintenance of the lunatic and the ma-
nagement of his estate ; and likewise the several orders made
by the great seal, upon every demise of the Crown, for re-
viving of the said order of the 16th of June^ 1699, and the
grants made under the royal sign manual, upon every demise
of the (Jllrown, to the then Lord Chancellor or Lord Keeper,
authorising them respectively to make grants and orders for
the custody of the persons and estates of lunatics, and to act
therein as they should think fit. All which grants under the
royal sign manual, together with the report, and the said
successive orders, the defendants pleaded in bar of such part
of the bill, as sought to compel the defendants to account for
the rents and profits of the lunatic's estate, or to discharge
the said orders.

For the plea it was insisted, that this was a peculiar Juris-
diction of the gi^at seal, granted under the royal sign manual,
and in virtue of the prerogative of the Crown ; that these
orders were made by the Lord Chancellors or Lord Keepers
for the time being, not as Chancellors or Keepers, but by au-
thority of the sign manual, and under this particular power .
and jurisdiction, and so not impeachable by bill to the Lord
Chancellor as Lord Chancellor ; besides, that were it in the
ease of any order made by the Lord Chancellor as Lord
Chancellor, nothing could be more incongruous, than to
bring an original bill to set aside an order made by the court;
tiiat the present bill was the less to be countenanced, in that
there had been so many orders made by every succeeding
Lord Chancellor or Lord Keeper, upon every demise of the
Crown ; so that this order of the 16th of Juncy 1699, had
obtsuned the sanction of many eminent and learned men,
who had been successively in that great office ; that in the
case of orders made in relation to lunatics, the Lords them-
selves will not hear any appeal, but the same mu^t be made ]^o _p^ ^^
to the KincF in council ; of which there was a recent PA] in- 'rom an order

^ ^ L J of the Lord

ChanceUor, touching lunatics, to the House of Lords, hut only to the King in council. See
the note at the bottom.

[A] The following extract has been taken from the Lords' journals^ ^^ Di€
^^ Mariisy 14 Feb. 1726. The house (according to order) proceeded to take
^' into consideratiou the petition and appeal of WUUam Pittj esq. and Samuel
^^ Piity merchant, complaining of two orders made bj the Lord Chaacellor, the

108 De Teim. PMchm, 1731.

Sheldow Btance ; that whese tiie commitment of a lunatic is gianted^
^^ the coiut does not so much regard die benefit of his admi-

j^jj^j^ nistrator^ aa the well-being and comfort of the lunatic himself
so £sr as> his estate will allow^ with a view that sudi lunatia
may liYe as easily as his unfortunate condition will admit o^
agoeeably to his circumstances.

In answer to which it was, alleged^ that the hill was
brought to set aside tiiese orders, for the fraud and colhisioa
by which they had been obtained; that this fraud and
cdlusion sufficiently appeared by the articles entered into by

[ 109 ] Mr. Justice Dormer, and Mr. Sheldon, but seven days be-
fore obtaining the order ; which articles were concealed frona
the court, and appeared plainly to have been for sharing and
dividing the lunatic's estate ; and that it was a most extras
ov^ary thing to give up Mr. Justice Dormer* s bond for ac«
counting : that not only an interlocutory order, but a decree
itself, if gained by (1) collusion might be, and frequently had
been, set aside even on a petition, by the same reason that
judgments in courts of law when obtained unduly, and by
coUusicnij were every day set aside on motion ; that the oA*
Ittsion of granting (in the present case) the custody of the

^^ 23d of December and 25th of January last, jEranCing the custody of the person
*' of Samuel Pitt, a laoatic, the appellant's uncle, as in the appeal is mentioned ;
^^ and praying, that the said orders may be reversed. And the said appeal
^' being read by the clerk, notice was taken to the hoose, that the custody of
^' idiots and lunatics was in the power of the king, who might delegate the same to
^' such person as he should think fit. Whereupon the Lord Chancellor produced
^' a paper writing under his majesty's royal sign manual, intrusting his lordship
^' with the care and commitment of the custody of idiots and lunatics, and of
'^ their persons and estates ; and the same being read by the clerk, it was
^^ moved, that the before-mentioned appeal of the said William Pitt, and Samuel
^^ Pitt might be received ; and after long debate, and reading the statute of the
^^ 17th of king Edward the Second, De prerogatrvA regis of idiots, ct^* 9 and
'^ 10, the questiMi being put, whether this appeal shatl be received ? it was
^^ resolved in the negative."

Ashley Cowper, Cler* Parliamentor'.

In consequence of the above resolution, an appeal wns brought before the
king in council, where, after some debate touching the jurisdictioo, the matter of
the appeal was beard and determined, May 15, 1728.(2)

(1) Vide Richmond v. Tayleur, (^) So, Rochfort v. Earl of Ely, 6
ante, 1 vol. 737. Lloyd v. Mansell, Bro. P. C« 329. (x)
aate^ 2 vol! 73.

(«J Oxtnden v. Lord Comptou, 2 Yes. Jon. 72.

]feT9f>u ot the lunatic to Sir Robert Jqfikimon W2^ ^n^enU^l^ ^vi^uoif
f vident^ it being at the same time well known {a)y an^ what ^ ^
pust b^e admitted^ t^at ^e luaatic was in fact never in th^ ^ JiLAVD.
cuf^dy of any oUier pert^on than of Ajlr. Justice -D^^'^'^^i («) VoH;3$4.
that a bill for lui account as well lay agaiqst the committee
of an estate of i^ lunatic as against the assignees of the estate
of a bankrupt ; that the present bill was the more proper^
because^ till the death of the lunatic, no person ha^ a right
to any part of the lunatic's estate, nor was consequently en-
titled to bring such bill ; that the subsequent orders made for
committing the lunatic's estate to Mr. Justice Dormer, sub-
ject to account, and his giving security accordingly, wene a
tacit waiver of ^y former order by which he might apprehend
hixnself to be a committee without account; nay, that a
gn|nt by the great seal of the custody of the estate of a lu-
natic [not an idiot] without account, would be void in itself:
po if such grant were made to the use of the grantee, ^uamdiu
the lunatic should continue a lunatic, this were void; Moor A.
Franceses case, and Hob. 215 ; for it is contrary to the trust
which the law reposes in the Crown ; and in all such cases
the King is taken to be deceived in his grant; that in the [ ^10]
case of a lunatic, (qui gaudet lucidis intervallisj the law
does not despair, but takes notice of a possibility at least, if
not a probability, of his recovery ; and therefore provides that
against such time of his recovery, whenever it shall fall out,
pn ^count shall be rendered to him, and restitution made of
his estate,: else the law itself would be almost barbarous^
and add affliction to affliction; that suppose the lunatic
himself had recovered, and bro^ght a bill for an account, he
must have had it ; and surely his administrator has the very
aame right.

Lord Chancellor. I do not see any fraud in Mr. Justice
I)ormejr*8 having obtained this order of the 16th of June,
1609, or that the court was surprised in it : there appears to
have been an order of court to refer it to the Master to see,
what was the lunatic's estate, and how incumbered ; pursuant
io which a report was made : neither have I been able to
discover any fraud in Mr. Justice Dormer* 9 having got up
ills bond. Then supposing this to be so, where such order
has been made for the allowance of the profits of the estate
of the lunatic towards his maintenance, and this so often re-
newed by the Lord Chancellor and Lord Keeper for the time
iNlRg; Inr which it is rpapqnable to 0uppose the eominitt«^
to have been induced to take the less cms of th» l«eou|itp i

1 10 be Term. Pascha, 1731 .

Sheldok it would be extremely hard, unlesitf some great Arand were

V RT* niade to appear, to. oblige, such committee, and much more

Aland. ^^^ executors or administrators, to account or refund. I

The Kin^s tidmit the King or the great seal cannot grant a Junatic's

St?c'8^Ltote ^^^^ without account: but as the Lord Chancellor may

without ac- make what allowance he pleases for the maintenance of the

.a 9 4

bntthckingor lu^^atic; 80,. supposing the estate to be ♦600/. per annum, or
lord chancellor 1000/. (and in the case of a baronet, as the present case is.)

mayallowsttch ^i_ V, „ ^ , , . . /'

a yearly main- the court may allow as great a salary as the income of the
natteaa^-*^"" estate amounts to; in some cases, where the income is very
mounts to the narrow, the whole may be little enough,
ti^unatic's^ Now this being a difference in form only, that the allow-
estate. jm^e of the whole profits (in express terms) is not good, but

L ^^^ J the allowance of such a yearly salary as amounts to the
whole yearly profits, is good; it is not reasonable such a
mistake in form should subject the committee or his repre-
sentative to account for or refund what has been received
under the commitment. Mr. Justice Domier does not seem
to have waived the benefit of these orders for his allowance
on account of maintenance, by having accepted the subse-
quent orders for the commitment of the lunatic's estate, on
his submitting to give security to account, or by having ac-
A decree gwn- tually entered into such security j because this is necessarily
may be set , incident to such committeeships. I admit even a decree,
aside by peti- much more an interlocutory order, if gained by collusion,
a judgment at may be set aside on a petition \ H Jbrfioriy may the same be

a*fortiorirmay ^^^ ^^^^^ ^7 ^^^' '^^ principal case seems to be very hard on
such decree be the defendant's side: but let the plea stand for an answer

set aside by • , , , -.. , ^ _«,-, . .

bill. Without liberty to except. [B] {z}

[B] It appears from the Register's book, that on motion it was alleged, that
the matters in difference were compromised ; it was therefore prayed, that the
plaintiff's bill might stand dismissed without costs, which, on hearing counsel
for the defendant, who consented thereto, was ordered accordingly, Feb. 27,
1732.

The custody of a lunatic may be granted to a feme covert, though she be not
9ui juris, bat under the power of her husband. By the Lord Parkery Ex parte
^[mgsmill, Michaelmas, 1720.

Oit«4hroagh a great age being deprived of his memory, and become almost
non compoSHHentis, was admitted to answer by his guardian ( y), in regard the
demand in question was but small : but had the value been considerable, the re-
gular wif iiad been to have taken out a commission of lunacy, and have gotten a
committee assigned. By the Lord Talbot, Michaelmas, 1733. Anonymus.

{y) See Milford, 82. in 3d Edition. 14 Ves. 172.
Levinz v. Cavcrly, Tree, in Cha.^ 229. (z) See more of this case, 'antey 1
1 £q. Ca. Ab. 281. IVilson v. Grace, vol. 262*

De Term.Pascha, 1731.

112

WOOLCOMB V. WOOLCOMB.

Case^.

Onb devised to his wife all his household goods* and other Lord Chan-
goods^ plate and stock within doors and without, and be- cellor King.
queathed the residue of his personal estate to t/. S, The f J^- F,^^'
question was, whether the testator s ready money, cash, and Derise of all
bonds, should pass to the wife by these words ? iwdB^aS^^*

It was contended, that the devise of all the testator's other goods,
goods should carry all his personal estate^ omnia bona being ^e residue of
words of the largest extent and signification, with regard to ™I-??*®^. '

personals. the ready

To which it was answered, that if the devise of all the tes- ^^^^
tator's goods were to be taken in so large a sense, it would p«m b^ the ^
then frustrate and make void the bequest of the residuum, ^^ then^*
which would not be allowed; that it seemed reasonable the tecjuest of the

. , - residue would

words other goods should be understood to signify things of beroid.
the like nature with household goods, to the end the whole
will might have its effect ; and consequently, that the tes-
tator's ready money, cash, and bonds, should not in this case,
pass by the word goods, but should go to die residuary le-
gatee ; and of this opinion was the Lord Chancellor. (1)

(1) The devise was of ** all the far-
^ nitare of bis parsooage-house, and
'^ all his plate, household goods, and
" other goods (except books and pa-
^^ pers) and all his stock within doors
'^ and without, and all his corn, wood,
^'and other goods belonging to his

** parsonage-house" to the wife.— 5he
claimed the money, and bonds which
were found in the parsonage^house at
the time of the testator's death — but
the Lord Chancellor was of opinion
that they did not pass by such devise.
Reg. Lib. B. 1730. fol. 254.(x)

(x) See Heam$ v. fVigginton, 6 Mad. 119.

III Dl« TVrm. & TViii. |7^l

C^,5. TPRM. S. TRINITATIS, 1731

WII4UNG V. BAINE.

Lord Cli^ii« ^. by his vQl dsviaed SXXy. a-piece to his duldien^ papUr
cellof JCxi^Of 2t their respective ages of twenty-one ; and if any of dieni
2 R^clf Ab. ^^ before their age of twenty-ooe, then the I^ncy giies
545. ^.n. to the peiaon so dying, to go to the sunriving childrea.
OM^^'alt- He devised the residue of his personal estate to jI.^ B^ and
'^Sm toUi ^*^ O'^^ litaKt of his children) and leaving made them exe-

chUdren pay- Cntors, died*

tf »7 oVul!^ One of the chfldnn died in the testator's life-time, and
^ before 21, after the testator's death one of the executors and residuaiy
nejgiTeii to )^(atees died. Upon this two questions arose, ./Erfl, whether
Urn todyiac, ^^ legacy of the child that died in the life of the testator

lO go OTer to ** *

the nirriTiiig should go to the surviving children, or should be a lapsed
^^b^ten legacy, and sink into the surplus ? Secmifyy whether when
^S^J^^ one of *the executors and residuary l^atees died, his sjore
thoi^ tiiiaia^ of the residuum belonged tohis executor, or to the surviving
e^}^- lesidpary kgatees ?

dyiag nader As to the first it was objected to be the constant rule,
v^^ea that if ^e legatee dies in the life of the testator, this Iq^acy
!rT:!t,!^ lapses, which took in the present case; for here the child,
cUdieB. the Iqpitee, died in the lifetime of the testator : that it was
[ *114 ] true, there was a devise over of the legacy, in case any of
the children should die before their age of twenty-one: but
such clause could not take place in the present case, because
there can be no legacy, unless the lq;atee survives the tes-
tator, the win not speaking till then; wherefore this must
only be intended, where the legatee survives the testator, so
that the l^acy vests in him, and then he diea belbfe his age
of twenty-one.

Jh Term. S. Trm. 1731. IH

Qd ibe otfier aide it vn^ p|d4 mi resolved by tlie c0Uft| Wi^uwi
that the ruk «i t]rae> that wbere the kigatee dleti m the Ulb of ^ ^
the testator^ his Ugtey kHpaes^ (i. # .) it hqma m to the k^ «^w<t
gatee so dying : but that in this case the liegacy vas well
given over to the survi\ring qhildren^ foj( which 9 Vfm. WJ.
MHUft T« WomeUt waa pited, where there wa^ a devise of %
legacy of 1500/. to A, payable at his age of twenty-one, and
if A. died before, then to JB. On A,*% dying in the Ufetime
of the testator, though this was never a legacy with respect
to A^ but lapsed as to him, by his dying in the life of the
teatator, stUl it was held to be well devised over^ So. |n the
case in 2 Vevn. 611. of [A] Ledawne v. Hickman. In like
maAn^, if land were devised to A. and if A. should die
before twenty-one, then to J7. on^.'s dying in the life pf £ ^5 ]
the testator, and before twenty-one^ thi« woi)14 be a good
devise over of the land to JB.(l)

With respect to the second point, it was contended, that One derlMt
it being the case of a legaey, and merely out of a personal J^^ J^Su''
estate, the construction of the spiritual court ought to pre- «*^te ^ ^
vail : now that does not allow of survivorship ; but takes care ton ;^tlib°ii a
that the benefit of the devise shall be equal, as was intended |^^'^^*'
by the testator ; which intention seemed here to have been ^eath of one
ia part complied with, by the executors having divided J^^^rfa?*
amonint themselves what had been already received. And ^^ ^ ^

CMC of ft le*

Sir Thomas Jonet, 130. Bastard v. Slukeley, also 1 Chan, gacy, •• of »
Cases, 238. Cos v. QuantQck, were cited for this puipose. f^^^'

But it was held by the court, that there might be a joint
legacy, as well as a joint grant; and that, as the executor-;
ship survived, there was the same reason, why the devise of
the residuum should do so too; that the case in 1 Chan. Cases^
is mentioned in the book to have been dissatisfactory to the
bar, and to have been reversed on a rehearing ; a^d the case
cited afterwards in the same book, from 2 RolL Ahr^ 301 . is
plainly against law; that a will coming into fFestminstff'*
hail to be construed, ought to be determined accojiding to .

[A3 la the ease x>f Ledsome v. Hickmrnn, which was much the same with the
priacipal case, according to our authpr's report of it, the Lord Copeper, hoth on
the demurrer, and afterwards on the hearing of the cause, was clearly of opinion,
that the devise did not take effect to the two surviving daughters, ^s a remainder
or a devise over, but as an original devise, on the contingency of one of the de*
visees dying within age ; and that, agreeably to what Lord King declared in the
above reported c^se of Wilting v# Bainfiy this would bs^ been goo^, had it been
in the case of a devise of land.

(1) Vide Perkins v. Mickkthwaiie^ ante, 1 vol. 374.

115

DeTerm.S. Tnn. 1731.

Willing the rules of the common law. Wherefore it was decreed [B]^
f • that the survivinfi: devisees of the residuum should have the

benefit of such surplus, except as to what had been received
and divided. (I)

[B] See the caseof JFeMer V. Webster ^ y o\. % ZA7.: but more particularly
that of Cray v. fVillisy vol. % 629. and Sir Joseph JekylVs argument on this
point.

(1) The Master was to certify what
part of the testator's personal estate was
divided to Ann Bayne^ (the deceased
executor) and the other residuary le-
gatees in the lifetime of the said Ann
Bayne^ and her executors were to re-
tain what was allotted to her on such
division; and if the other three resi-
duary legatees had not or did not re-

tain their proportions thereof, then they
were to be made equal with the said
Ann Bayne out of the said residuary
estate before the same was further di-
vided— and thp remainder was to be
equally divided amongst the three sur-
viving residuary legatees. Reg. Lib. B,
1730. fol. 388.

[116]
Case 26.

MR. HERBERT'S Case;

222. pi. 7.
756. pi. 13.
Marrying an
infant ward of
the court is a
contempt,
though the
parties con-

Sir Joseph Me. Herbert was an infant of about eighteen years of age,
M ^7^% ^^^ seised of an estate of 1200/. per annum ; and in a cause
the Rolls, depending in this courts the guardianship of the infant was

2Eq.Ca.Ab. comnutted to the custody of Sir Thomas Clarges, as his
guardian appointed by the court. Mr. Herbert^ the infant,
was sent to the university of Oxford; from whence coming
to town upon some occasion^ he was drawn in to marry a
common servant maid, older than himself, and of no fortune.
One Philips, a parson, married them ; and he had several

cemediniuch i^Ij^q]^ licences under the seal of the proper officer, which

marnagc had tr r j

no notice, that were used to be filled up by the said Philips; and one fPil"
award*of the ^^^^^9 ^ho pretended to be a counsellor at law, took upon
court. • him to be guardian to the infant, and to consent to his mar-

rying this servant midd. Wherefore, being ordered to attend
his Honour the Master of the Rolls, it was insisted, by way
of excuse, by the parson and PTilliams, that they did not
know Mr. Herbert was a ward of the court, and not knowing
it, could not be guilty of a contempt of the court. And with
regard to the filling up the blank licences, this was endea-
voured to be justified by alleging it to be the common prac-
tice. The matter having been for some time debated, was

Z)e Term. 8. Trin. 1731. 116

adjourned over for further consideration. Afterwards, on Hcrbirt's
this day (a) the parties again attending, it was urged, that Case,
there had been several cases, where it did appear, that those (^^ July 21.
who had drawn in infant wards of the court to marry, and
had been instrumental in bringing about such matches,
although they did not know that the infants were in ward-
ship to the court, had yet been held guilty of a contempt,
as in the case of Mr. JV^Uis [CJ who married the< daughter [ 117 ]
and heir of Sir Edward HanneSy where the parson that
married them, and other assistants in the marriage, were
committed, and lay long in custody. So in the late case of
Mr. CcBsar of Hertfordshire^ who married Mrs. Longy a
ward of the court, where Mrs. Cromer and her daughter,
the contrivers of the, match, were examined on interroga-
tories and committed, though it did not appear that in either
of these cases the parties were apprised of the lady's being a
ward of the court ; and as to the blank licences, though this
was admitted to be an usual practice, yet the same (it was
said) ought highly to be discountenanced, as tending to pro-
mote unsuitable matches.

Master of the Rolls. With regard to what is alleged by
way of excuse, that the parson and the pretended guardian
had no notice of the infant's being a ward of the court ; it Acts of tbe
is to be observed, that the commitment of the wardship to commitment
Sir TTiomas Clarges was an act of the court, and in a cause ^^^^^^^^'^v*

^ ® ^ and m a cauM

then dependmg, of which every one at his peril is concerned depending, to
to take notice, in the same manner as of a lis pendens* Sure- ^^^ ofhj^'
ly it may be as well presumed every one is apprised of the «y«>7 o^e at
proceedings of this court, as that all executors should be
presumed to take notice of all judgments even {b) in the in- (*) O^- E*-
ferior courts of law, and therefore are not to pay bonds before
such judgments^ but at their peril. In the case of a writ of
ravishment of ward brought by any subject, it is no excuse
for the defendant to say, he did not know the party was a
ward of the plaintiff's : and if this be so in a private case,
a fortiori will it hold, where the public justice of the court
b concerned. Besides, where the marriage of an infant is
encouraged without the concurrence of his real guardians or
relations, the consequences of such mairiage ought to be at

[C] See this case cited by the* Master of the Rolk^ in the case of Mr.
Justice Eyre and the Countess of Shaftesbury, 2 vol. 112. where it is ofo-
senred, that Mrs. Ilannes was not taken (as here) from a guardian assigned
bj the court.

116

Ih Teiin. 8. THn. 1731.

Hi£RB£RT*l the [D] peril of all those that are instrumental ^therein. If
Cttse. actual notice of the infant's being a ward of the court were
necessary^ then these offences would be continually practised
with impunity : for it would be an easy matter to put othetr
people not really privy to the acts of the court (in commit^
ing the guardianship of the infant) to transact and bring
about the marriage ; for which reason^ if the cirtumstancea
of the marriage are suspicious (as in the present case they
Imquestionably are, where one acts as guardian of the ixi£Eint
teho never appears to have known him before, and acts too
Hot for the benefit, but to the prejudice and probably to Hie
ruin, of the infant) in such case (I say) all the parties to the
transaction ought to be severely censured for example Bake^
and to deter others from the like offences, (x)

And as to the blank licences for marrying; his Honour
said it was a very ill practice, and that it seemed to Mm such
a licence was void ; that at the time of its being sealed by
the officer it was plainly so, being with blanks ; and if void
when the seal was put to it, the same could not be afterwards
made good by the parson's filling up the blanks with names;
for then it would be the licence of the parson, and not of the
ordinary.

[D] One, not a freeman of London^ married a city orphan ; and 1;hough it did
not appear the party had any notice of his wife's being a city orphan, yet it was
held, such person was punishable by the court of orphans; for every one is
obliged at his peril to inform himself concerning the person whom he marries ^
ahd here nobody is obliged to give notice, consequently the party must at hi*
perU take notice. 2 Lev. 32. 1 Feni. 178. The King v. Harwood.

A parson ob-
tains blank
licences for
marnring, un-
der tne seal of
the proper offi-
cer, and after-
wards fills
tbem up; these
are roid not-
withstanding.

(«) NithoUon V. Squire J 16 Yes.
259. A marriage in fact is sufficient to
ground the contempt, Salles v. Savig^
non^ 6 Ves. 572. Bathurst v. Murray ^
8 Ves. 74. The endeavour to marry is
a contempt, Warier v. Yorkey 19 Ves.

451. Marriage of a ward of court is
punishable by indictment for a conspi-
racy, Milleit V. Rowse^ 7 Ves. 419.
Ball V. Couitsy 1 V. ft B. 292. Wad^
V. Brougkton^ 3 V. & B. 172.

Db 1>nh S. H&ttrii, I7Jl. 11^

TERM. S. HILARII, 1731. ' - /■

•a *

COWPEfe ». SCOTT JfcT AL'. Cue ST.

Hi^ttT BsbkL^ a freeioan of London^ had oiie son and sik Sir Josc^a
(daughtefs^ four of whom were married in his life-time, and JekVlx,
advanced by portions. Henry Bedel inade his irih dated ^**^|2^
August 17, 1727, and thereby (havibg disposed Of his per- p^yj^ofiju,^
sonal estate, and likewise of "part of his teal estate, to and to trastees in
amongst his children) devised several freehold lands and ^^^^ g™*^
tenements to certain trustees and their heirs, upon trust that y^^^ After tl»
they should, within six years after his decease, ruse fod ttLth^ to'r«Ue
pay out of the rents alid profits of the premises 1500/. J^^JJ^^^^iJ^^
a-piece to his two youngest daughters 3 and also out of the terA. A. diet
rents and promts of the said premises pay interest at the rate Z^JJjl ^^
of AL per cent, per annum, for the said 1500/. a-pi6ce, untH i&oo'* •^ go
the same should be paid, for and towards their maintenance niitntor, hen
and education. Mhry, the youngest daughter but one, mto- ^^5^^*1*5"
ried very improvidently to Essen, one of the defendants, and mited when,
died within the six years without issue ; and h6r husbdnd Sulfate tU^e
insisted to have tHe 1500/. and interest pidd to him as her '^^^^^ which,

, *. . ^ ^ *^ itshiiUbe

administrator. raised.

Against which it was objected, that this 1500/. being pay- r i^ a
able within six years, could not be demanded until the six
years were expired ; that it was the same as if it had been
said at the end of six years, and being a charge upon a real
estate, it ought now to sink therein. Neither was the case
alt^i^d by the daughter's having married within the sik
^ars; especially since the husband had made no settlement,
aAd was so unsuitable a match for her. For which was cited
^ Fhm. 6I7. Carter v. Bletso, Where a man seised iA fee
devided lands to his eldest son in fee, with directions, that
litB ddest Bon ihouM pay out of the lands to the testator^
daughter Mary, 980/. at heri^ of twentjr^one^ with 4/.'/ier

120 De Term. 8. HU. 1731.

CowPER cent per annum, for maintenance in the mean time. Mary
^ ^' married, and died before twenty-one, hereupon the husband,

as administrator to his wife, brought a bill for the 200/. but
decreed, that the husband had no right thereto, because by
the will there was only a direction to the son to pay the 200/.
to the daughter at her attaining twenty-one, until which age
nothing vested,

Sedper Cur. The payment of this 1500/. b not appointed
to be at the end of six years, but to be made out of the rents
and profits within six years, t. e. the trustees are to pay it
within that compass of time, if it can be raised out of the
rents and profits. So that here is no precise appointment
when it is to be paid, but the rix years are mentioned as the
(«] So, Wilson (q\ ultimate time for that purpose : in the mean while it is to

«k spencer^ ^., , .xi t /i\

poit, 172. be paid as much sooner as it can. In the great case of \b)
M^cuJ^ed* ^^h^ V. Evelyn, lately determined, it was the unanimous
wiib portions, opinion of the court, I mean of the Lord Chancellor, the
appointed for ^^d Raymond, and myself, that if a portion be to be raised
^^ to^Uw * out of rents and profits^ and no time mentioned for the pay-
poitions Teste ment, it is payable presently, and becomes an interest vested;
nyv^^^Ii^. consequently, it will go to executors, &c. So, long before, in
[ \i\ ] the case of Earl (c) Bivers v. The Earl of Derby, it was de-
(c) 2 Vera. 72. ^reed, that where a portion was given to a daughter, and no
time limited for the payment thereof; on the daughter's
dying before marriage or twenty-one (viz. at her age of
seventeen) it was a vested interest in such daughter: where-
fore, this being a rule (1) so settled, his Honour would not
suflTer it to be further debated. But with regard to the in-
terest of the 1500/. that being desii^ed for the maintenance
of the wife, and she being dead, it was ordered there should
be no interest paid from the death of the wife.
I d«rlse 100/. The next question upon the will was, the testator had
CJ^'Xriid Ms appointed that the trustees should, out of the rents and pro-
wirs for ibelr fl^-g ^f hja estate, raise and pay unto his only son, Henry
livM * m. Bedel, and Dorothy his wife, over and above what he had
J^'tlTth^Jlfe ^^^^^^ K^ven them, 100/, per annum, during their respective
Cr th« sunport Uves, 60/, per annum of which 100/. per annum, should be
her d[!?fhuri pwd to the son's wife for the better support of herself and
m^x^m^'^^n. dawgl^ter 5 the remaining 40/. per annum, to go to the tes-
The son dies/ tator's Said SOU ; the son died in the testator's life-time.
hlVe^hVwhoio Whereupon it was now insisted, that the son's widow

100/. per ann,

(1) Vido Duke qfChando$ v. Talboi^ ante, 2 toI. 013. note.

De Term. S. HU. 1731- Wl

should have but 60/. per annunif and not the 100/. per annum, Cowper
for that the latter clause of the will imported a distribution ^ ^*

Scott

how the 100/. per annum was to be paid : namely^ 60/. to

the wife, and 40/. to the husband, just as if the devise of the [ 122 3

100/. had been to the son and his wife for their lives, haben-

dum 60/. per annum, part thereof to the wife, the remaining

40/. per annum to the son. Or, as if the testator had devised

100/. per annum to his son and his wife for their lives, that

is to say, in manner following : 60/. per annum to the wife,

and the remaining 40/. to the son ; which latter words were

therefore explanatory of the former, like the case where a

devise is to ^. and his heirs, hajbendum to A, and the heirs

of his body. There the latter words (a) explain what heirs (a)lln»t.21.b.

are meant. And it was observed, that the 60/. per annum

given to the wife was not made payable to her during the

coverture, or during the joint lives of her and her husband ;

but generally, and so must be intended for her life, as any

general devise or grant must be taken to be for the life of (&) (t) i init. 42,

the devisee or grantee.

Sedper Cur, Though this clause be unskilfully penned,
yet it is plain and express, that the testator's son and his
wife should have an annuity of 100/. per annum for their
respective lives ; and such express devise is not to be con-
trolled by words that are doubtful, and barely capable of an-
other construction. The testator may well be intended to
have meant, that during the coverture, 60/. out of the 100/.
per annum, should be allowed for the mdntenance of the
wife and her daughter ; and not that the daughter's main-
tenance should remain a clog on the wife during her life, if
she should happen to survive her husband, and when pro-
bably her daughter would have had another provision fallen [ 123 ]
to her on the death of her father, as in fact she had.

Another question was, whether Ann, the youngest daugh- A freeman of
ter, who was married to one Mr. Searle, might not claim wU? charts**
her 1500/. given her by the will out of the real estate, and i&oo/. on hit

real eatate for

also her orphanage part ? his daughter,

, For which purpose it was urged, that as the real estate of J°J 'Jjof ol't
the freeman was quite out of the custom, so the orphan ofhiipenonal
xQight claim that, or any derivative charge or interest there- JJ^u-^ter
out, over and above her orphanage part. And therefore, if ??J^**^**J®

the re«] esUte (as that is not within the custom) and also clium her orphanage part t hut the
court, b legard the testator had disposed of all his real and personal estate amonr his children^
and iotended an equal dWision, would nut suffer the child to disappoint her father's wiUt hut
compelled her to abide entirely by tht will, or by the emtoou

^OL. Ill, H

1«S De Term. S. Mil. 1781.

CowpER ^ freeman advances a child by a real estate, and dies ; this »
^' not to be taken as any advancement, but such child shall
liave his full orphanage part besides. Nay, the tnming the
personal into real estate, though with a declaration at the
(«}Babbiiistoii same time that it is done purely with a (a) view to evade the
▼oL iTwor^' custom, will yet be effectual for that end ; that this was still
stronger as to the lands of inheritance devised afterwards in
tihis will to the daughter in tail, all which she might well cUdm,
and also her orphanage part ; for it could not be called a
breaking into the custom, to claim that with which the
custom had nothing to do ; and if the youngest daughter
might have these and likewise her orphanage part, her
share of the latter would come to mucb more than the
shares of her elder sisters who had received advancements
from their father on their respective marriages, which the
youngest had not.

Sed per Cur. It appears upon this will, that the testator
[ IM ] intended to make equal provisions for all his children, espe-
cially in case his son should die without issue male, which
has happened in his life-time i be gave an estate in land to
'each daughter; he moreover gave to his son, and also to his
'six daughters, a seventh part to each of his personal estate,
intending thereby an equat division of all his estate amongst
his children. Wherefore, if any of the children shall go
about to disappoint such intention, and prevent that equality
which the will designed, such child shall be excluded Ifrom
taking any benefit by the will, as well with respect to the
real, as the personal estate ; and not be allowed to elect what
be likes best by the will, and entitle himself to the rest by
the custom, but must abide by the will only, or by the Cus-
tom only : and the difference is, where the will makes a dis-
position of the [A] whole estate, both real and personal of
the testator amongst his children ; and when it gives land

[A] If the freemm gives a legacy to his child, and disposes of his whole per-
sonal estate, the child shall not have both the legacy and the orphanage part,
even though the legacy does not exceed the dead man^s part : secus, if the legacy
be given expressly out of the testamentary part. Hender v. Roie^ at the Rolls,
Jui^ 4, 1718, and Frederick v. Frederick^ vol. 1. 722. But in no- case shall the
child be obliged to make his election, till after the account taken. Hender Vm
Jtose^ ubi sopra. (x)

(c) See note to JPtfa^ w» Ihihau* ante, 2 vol. ^IQ, and the cases collectsd
«ne, post^ 321. And fee JDe^ V. ^r^, wiiote(«).

Bif Term. 9: minSl. IH

ind ;K>me share of tl^ testamentary part to a dnld^ who, in Gowp^m

such case, may lay claim thereto, without crossing the rest of g^J^^

the will. But wherever the child's claim by the custom

tends to frustrate aud defeat the intention of the father, in all

such cases he shall not be suffered to take any part by the

will, either of the real or personal estate, if at the same time

he would avail himself of the custom.

The last point of the case was, the testator Bedel had de- a.» btnog le-
vised all his personal estate in sevenths (viz.) * one seventh mrfteg^lmlae-
to each child ; after which his son, being the eldest child, cutor in trusty
died in the testator's life-time, and then the testator died, by each child one
which means the son's seventh became distributable accord- "e^enth of hi«

personal es-

iog to the statute, the executors being declared by the will tete; one of
to be but trustees ; and four of the testator's daughters being ^es^^^iife-
married, and having been advanced by their father in his Ufe- time, and one
time, it wias therefore contended, that this seventh, which Tiring children
TOs the son's share, becoming distributable according to the ^JJ^^^^^e
statute, tjie four sisters, who bad been adva^oed by their father in his
fatJier in bm life-time, ought to bring their portions into [^b c^d'sHu
hotchpot; for if the children are within the statute .as take his fuU
to one clause, they must be within it as to every clause seventh part

theR»f. withouttnng-

, mg what he

Sed Guria contra. Tliough this seventh part devised to the had before
son, did, by his dying in his &ther's life-time>for necessit/^ hcoch^t.^^^
sake become distributable according to the statute, yet I tal^e [ *IU ]
this not to be in strictness within the same ; because here jls
an executor^ and therefore the testator cannot be said to have
died intiestate; though it is true the execute being but a
trustee, is, by an equitable construction^ and by means of an
accident that has happened since the making of the will, a
trustee far the next of kin according to the ^l^ute. How-
ever, this is (as I said) merely through necessity, and because
no one elae can take : but as to children who were advanced
in their father's life-time, bringing such their advancements
iato hotchpot, that is to be only in the case of a total intestacy ,
or where the whole persoQd estate, not where part only,
and that perhaps but a very small part, (as here) becomes
distributable ; neither would it be reasonable for the children
so to do. And it is observable, that Mr. Lutwychcy who was
of counsel with the deceased daughter's husband, and whose
dimt's inteoest it was, to have the advancements of the four [ ISO }
""yrrifni dsnghteKa brought into hotchpot, gave up the point,

1S6 De Term. S. Hil. 1731.

CowPER saying, it had been so adjudged in Sir George fFheder's

^ ^' case. (1)
Scott. ^ '

(1) Sir George Wheeler'i case is case is to be fonnd in Reg. Lib. A. 1731.
reported in Mos. ^88, 301. by the name fol. 300, by the name of Cowper t.
of Wheeler t. Sheer. The principal Morsan, (jf)

(S) Walton ▼. Walton, 14 Ves. 318.

Case M- EAST ET MABIA UX' v. THORNBURY.

Sir JosEKi Thr bill was to recover the arrears of the interest of a leg^
Jektll, of 900/. after the principal legacy paid, and a receipt gi?eii
th**R "llfi ^^^ ^^^ same. The case was thus : one Thomas Thor^Jntry
2 Ea C Ab ^^^ ^^ ^^^ ^^ ^ ^^^ niece Mary Thomburyj now the wife
567. pi. 18. of the plaintiff East^ a legacy of 300/. payable a year after
▼md forale- ^^ death, and made his brother Hujmas Thomburyy and
gscy. ihoQf h his nephew the defendant Tlfomas Thcmbury^ then an in-
ffivta in full ^t, cxccutors. Thoimhuryy the elder executor, died, aod
j!nd^thV*^*X ^® defendant the younger, being but nine years old, admi-
pal legacy nistration with the will annexed was granted during his
^*^* minority.

The plaintiff Mary marrying the other plaintiff JSow /, they
demanded the legacy of the defendant, who desired them to
let it continue in his hands for about two years longer, and
paid interest for the first year after the marriage, taking the
plaintifTs receipt for the same, as for a yearns interest due on
the 13th oi jtprilj 1722, (being a year after the marriage)
and afterwards another year's interest growing due, the de-
fendant paid that year's interest and the whole principal,
taking a receipt firom the plaintiff for 15/. being a year's in-
terest due for the legacy of 300/. to the 13th of Aprily 17^3,
at which time the plaintiff gave the defendant a receipt for
300/. left to the plaintiff Mary by her said uncle's wilL

After seven years' acquiescence, the plaintiff demanded of

the defendant the interest for the said 300/. legacy firom the

£ 127 ] end of the year after the testator's death, which happened in

1707, insisting by the bill, that the plaintiff by mbtake took

Be Term. 8. Hit. 1731 . 127

the Baid legacy to have been made payable by the will at the East
marriage of the plaintiff Marys whereas it now appeared ^*

thereby to have been payable a year after the testator's death. burt.

For the defendant it was urged, that there was no pretence
of fraud on his part, no concealing of the will which gave
the legacy, no misinformation by the defendant that the.
legacy was not payable imtil the marriage ; that the will had
been proved in the spiritual court, where the plaintiff was at
liberty, when he pleased, to see it; and as this legacy was
part of the wife's portion, and the plaintiff a barrister at law^
it must be presumed he had seen it ; that the receipts ap-
peared to have been drawn by the plaintiff himself, who
delivered them to one who brought the money from the de-
fendant, in the defendant's absence ; that interest was pretty
much in the breast of the court, and might be waived by the
plaintiff, if he pleased. And it was compared to the case of
a note ^ven for a certain sum, which carries interest from
the demand, though not expressed in the note, and for which
the jury every day give interest : but if the person to whom
such note is given will accept of the money without interest,
it would be very strange to bring a bill in equity, or action
at law, for the interest only ; and yet that were a stronger
case, bdng the case of interest for a debt due, which ought
to be more &voured than interest for a legacy, which is a
bounty.

Also it was said to be like the case, where a tenant having
a right to deduct for the land-tax, does not however deduct,
but pays his full rent; under which circumstances, a bill
will [B] not lie in this court to recover back the tax, which
ought to have been before allowed ; for the tenant might, if

[B] So held by the Lord Hareouriy in the case of Wildey v. The Cooper$*
Company J Michaelmasy 1713, where the bill was bronght by a tenant to be re-
lieved oat of the arrears of rent for the taxes the tenant had actually paid, on
acconnt of rent reserved to a charity that appeared to be exempted from taxes ;
and the bill was dismissed with costs. But more particularly in the case of
Atwood Y. Lamprey^ heard at the Rolls, before Sir Joseph Jekyll^ Michaelmas^
1719, where the case was, one in 1683, in satisfaction of a widow's dower,
mortgaged land on condition to pay her ioU per annum ; whereupon the court
held, that this being an annual payment secured by land, should answer taxes in
propertion as the land paid ; but refused to make the annuitant refund in respect
of the payments she had received tax free, and for which the party paying had
omitted to deduct (jp)

(«) So Currie v. Gooldy 3 Mad. 163. Denby v. Moore^ 1 B. & A. 123.

BURY.

128 De Term. S. HU. 1731.

Eitt be pleased Mridve deducting the taix, and m> ndght th6 plaintiff
^ ^* waive the benefit of the interest of his legacy.

Sedper Cut*. It is plain^ interest for the legacy waa due t
there is a certain time appointed by the will which gives it^
(viz.J that it should be paid within a year after the testator'^
death. And as the plaindff had a clear right tiieteto, so hv
iias done nothing, for ought appears, to waive such fight.
The defendant himself admits the interest has! not been ^d,
which, it is to be presumed, was occasioned by the plaintiff '9
having apprehended, that it vras not due tiH after the plaintiff
Mdry^s marriage ; wherefore, a% the interest is due, and ad«>
mitted by the plaintiff Hot to have been paid, aud was not
intended to be waived, decree the defendant to pay the arreai^
of interest from the year after the testator's death, with eotfta
of suit.

a^'S'<< ^ ^<^. Jf^l

Da Term. S. MiekuU^, 1781. 139

TERM. S. MICHAELIS, 1731

OSMOND V. FITZROY AND DUKE OF CLEVE- Cw 88.

LAND, ET E CONTRA.

Thb X>ulce and Duchess of Cleveland, being about to send Sir Joseph >
the Lord Southampton, their eldest son, to travel beyond sea, «^^^^^*
employed Osmond, who was plaintiff in the original bill, and ^j^^ Rolls,
defendant in the cross bill, as a servant to attend upon the 2 eo. Ca. Ab.
young Lord, then an infant of about seventeen, and (as by the I86. pi. 8.
answer of Osmond it was admitted) to prevent his being tm- tmstohu heir
posed upon. Afterwards, on the Lord Southampton's return- "P*^^'; *^
bg from abroad, Osmond was continued in this service, and,, the caie of a
when his Lordship was about twenty-seven years of age, pre- JlSr^mesof
vailed on him to enter into a bond for the payment of 1000/. age > the ser-
tp him the said Osmond. The bond was prepared by Osmond,, bond from the
and kept secret from the Duke and Duchess. TTiere were J^"*"* T^^^

* bond IS se-

also some proofs of the weak capacity of the young Lord, and creted from
thai at that time he was unable to raise money to pay off the |^* h^S-^J"*
bond. The original bill was to recover the money on the not where-
bond, which was alleged * to be mislaid, and the cross bill ^e hood ^^
was to be relieved against the bond. eqnity will set

_, ^, , , aside the bond

For the defendant in the cross cause it was argued, that if as obtained by.
one who is at law allowed to be compos mentis, and conse- treach'of trust.
quently presumed to know what he does, intending to make [ *130 ]
a gift or benevolence, voluntarily enters into a bond without
any fraud in the obtaining it ; though on the obligor's death
it may be void against creditors, yet it will be good agiunst
the obligor, and no ground for relief in equity : that in the
present case here was no evidence of a want of care, much
less of fraud, in Osmond, who was hired only to take care of
the young Lord while an infant and during his travels, which
trust was therefore now determined.

Sedper Cur\ Where a weak man ^ves a bond, if thers be
no fraud or breach of trust in the obtaining it, equity will not

130

De Term. S. Michaelis, 1T31.

Bet aside the bond only for the [A] weakness of the obligor,
if he be compos mentis; neither will this court (1) measure
the size of people's understandings or capacities, there being
no such thing as an equitable incapacity, where there is a
legal capacity. But if a bond be insisted to have been given
for a consideration, where it appears there was none, or not
near so much as is pretended ; equity will relieve against it.
In the principal case there appears to have been a trust re-
posed by the parents in a servant to take care of an heir, and
prevent his being imposed upon ; and * the servant, instead
of acting agreeably to his trust, himself imposes upon him.
As to what is objected, that the trust was only to take care
of the young Lord whilst an infant or during his travels ; the
trust continued so long as the servant remained in the ser-
vice ; and it is remarkable, that during his infancy^ the law
took care of this young Lord, who for that reason did not
want so much the care of another : but when he was out of
the protection of the law by being of age, then he stood most
in need of the care of the servant. A breach of trust is of
itself evidence of fraud, nay, of the greatest fraud : because
a man, however careful otherwise, is apt to be off his guard
when dealing with one in whom he reposes a confidence.
The young Lord, by giving his bond for a sum which he was
unable to raise, subjected himself to a gaol, and 1000/. was
an exorbitant gift, for one who had no means of paying it.

[A] The having been in drink is not any reason to relieve a raan against any
deed or agreement gained from him when in those circumstances ; ibr this were
to encourage drunkenness: secus, if through the management or contrivance of
him who gained the deed, &c. the party from whom such deed has been gained,
was drawn in to drink. By Sir Joseph Jekyll^ at the Rolls, Johnson v. MedHcottj
May^% 1734. (y)

Osmond

FiTZROY.

A weak man
ffives a bond ;
if it be attend-
ed with no
fraud or breach
oftru8t,eqQity
will not set
aside the bond,
only for the
weakneas of
the obligor, if
he be compos ■
mentis. Equity
will not mea-
sure people's
understand-
ings or capa-
cities. No
such thinir as
an equitable
non compoSy
if compos at
law.

(1) But in Gnffin v. Deveuille^ No-
vember 16, 1781, the Lord Chancellor
observed, that in almost every case upon
this subject a principal ingredient was
a degree of weakness short of legal tn-
capacity ; and that in this very case of

Osmond v. Fitzrotf^ no relief probably
would have been given, if the court
had not considered Lord Southampton
as more liable to imposition, than the
generality of mankind, (x)

{y) Cory v. Cory^ 1 Vez. Sen. 19.
Cooke V. Clay worth J 18 Ves. 12.

(x) But see the report of this case
of Griffin V. Deveuille, in 3 Wood-
deson's Lect. A pp. 18^ and 1 Mad. Cha.
234. from which it appears, that weak-

ness of mind alone would not have been
a sufficient ground for setting aside the
bond in the principal case. And see Ben'
nett V. Fade, 2 Atk. 324. Aylward v.
Kearney^ 2 Ba. & Be. 463.

Be Term. 8. Michaelis, 1731.

131

llie secreting the bond from the parents is also a further Osmovd
evidence of fraud ; and young heirs^ even when of age, are ^ ^'
under the care of a court of equity. Wherefore this case^
though a new one^ yet comes within the rules (1) that have trhen ofage

• ^ are under the

ctfe of a court of equity, and tben want it most, the law taking care of them^mi that time.

(1) Besides the cases of actual fraud
upon a contracting party, as where there
has been suppressio veri or suggestio
faiiiy (vide Broderick v. Broderickj
ante, 1 vol. 339), or where advantage has
heen taken of weakness of mind (vide
ClarksonY. Hanway^ ante, 2 vol. ^03,)
or of necessity, as in Bosanquei v.
Dashwoodj Ca. temp. Tal. 38. Proof
V. Hines^ Ca. temp. Tal. 111. Thorn-
Ml V. Evans^ 2 Atk. 330. Heaih-
cote V. Pmgnoriy 3 Bro. C. C. 167.
Homes v. Wyatt^ 3 Bro. C. C.
156, (o) or surprize, as in Evans v.
Llewellyn f 2 Bro. C. C. .150. (p) there
are other cases in which courts of
equity will relieve against unequal con-
tmcts, (though executed) on principles
oipubUc policy J arising either from the
subject matter of the contract, or the
relative situations of the contracting
parties. Of the first kind (which are
also in some degree coosidei'ed vl% frauds
upon third persons) are the cases of
marriage brocage (vide Hall v. Potter^
Shower's Pari. Ca. 76. Roberts v. Ro-
berts^ ante, 66), of sales of offices (vide
Law V. Law J post, 391), of underhand
agreements upon marriage (vide Turton
V. Benson^ ante, 1 vol. 496. Roberts
V. Roberts, ante, 66. note 1.), or upon

composition with creditors (vide Mid-
dleton V. Lord Onslow^ ante, 1 vol.
768.) ; and the court has expressed
doubts how far transactions of this na-
ture admit of subsequent confirmation.
Walmsley v. Booths 2 Atk. 30. Cole
V. Gibson^ 1 Vez. 507. Shirley v. Mar-
tinj (q) in Exchequer, November the
14M, 1779. Kennett v. Greenwollersj
in Cha. July the 7/A, 1793.(r) Of the
second kind are transactions between
guardian and ward (vide Duke of Ha-
milton V. LordMohuny ante, 1 vol.118.),
or persons between whom a similiar con*
fidence has existed, as in Osmond v.
Fitzroy^ sup. Cole v. Gibson, 1 Vez.
503. Gr^n v. DeveuOle, in Cha.
November the 16/A, 1781, (where the
plaintiflP having lived for some time be«
fore he came of age with his sister and
her husband, the court set aside securi*
ties obtained by the husband from the
plaintiff upon his attaining his age of
31, considering the husband as much
answerable to a court of equity as a
guardian) (s) ; or between pjirent and
child, GUsson v.'Okeden, 2 Atk. 358.
and 3 Bro. P. C. 560. Cocking v.
Pratty 1 Vez. 400. Hawes v. Wyatt,
3 Bro. C. C. 156(0; or between
attorney and client. '. Proof v. Hinesy

(o) S. C. 2 Cox 363. Crowe v. Bal-
lard, 3 Bro. C. C. 117, 1 Ves. Jun. 230.
Evans v. Cheshire^ Belt's Sup. to Vez.
300. Pickett v. Loggon^ 14 Ves. 31 5.
Gubbhts V. Creeds 3 Sch. & Lef. 314.
Wait V. Grave, 3 Sch. & Lef. 493.
Roche V. O'Bnen^ 1 Ba. & Be. 330.
Strachan v. Brander, 1 Eden. 303.
Wood V. Abrey^ 3 Mad. 417.

(p) Purt^U V. M^Namara, 14 Ves.
91. Smyth v. Smyth^ 3 Mad. 75.

(9) See statement of this case in
Roche V. O^Brieny 1 Ba. k Be. 358.

(r) Cockshott v. Bennett, 3 T. R.
765. Crowe v. Ballard, 3 Bro. C. C.
117. S. C. 1 Ves. Jun. 315, and 3 Cox
353. Morse v. Royal, 13 Ves. 373.-'
Roche V. O'Brien^ 1 Ba. & Be. 330.
Dunbar v. Tredenniek, 3 Ba. ic Be.'
304.

(*) S. C. 3 Woodd. Lect Ap. 16.
Purcell V. M^Namara, ub. sup.

(0 Palmer v. Wheeler^ 3 Ba. &
Be. 18. Tweddell v. Tweddell, 1
Turn. 1.

•fvA,

131

Ik Term. & Mickaelk, 1731.

Oucoim been observed In equity ; and seeing the defBndant Oimatid

„ ^* ia hb answer to the cross bill sets forth that the bond in

xTzaoT. q^^iJQQ jg mislaidy I decvee fains to release the bond. [B] {x)

[B"] On die ttd otAmCy I7M, this csnse was reheard by the Lord Chan*
o&r TalM^ when the decree at the Rolb was affirmed, and the 5L deposit
cndered to be paid to his Grace the Dnke of Cleveland.

Ca. temp. Tal. 111. WalmtUj^ ▼.
Bootky % AOl. U. Oldham v. Hamdy
% Ves. %5% WeUe$ ▼. mUkUm^ in
the House of Lords, 1785. (ii) Leigh
v» tVilUam$j in the Exchequer, No^
vember the 17/A, 1790. Kennei t.
GreemvoRerty in Cha* July the 7(hy
1793. Newman ▼• Pqsff^ey in Cha.
Mich. 1793 (v) ; or between a steward
or agent and his {^riDcipal, Cra^ v.
Mimsfieli^ I Yes. 381. Gwitide v.

hhemoody l.Brs. C. C. 558* Fq9
¥. Mackreih^ % Bio. C. C. 400.(9)
Crowe ¥. BMlhrd^ 3 Bre. C. C.
117(«); bargains with hein appa*
rent, &c. for their expectations (lids
TtoUleton ▼. 6r^&,ante, 1 ▼<4.310),
or with sailors for their priae meaey,
Baldwin ▼. RocJ^fard^ I Wils« 93S[<
Tsry^ur y. Rocijordj % Ves, MU
Ifov T. rVeldWy 2 Ves. 516. (y)

(m) 1 Cox 113. 4 Tom. P. C. t45.

(cr) 3 Ves. Jnn. 109. Gihion ▼.
Jsjres, 6 Ves. 366. Harris y« TVe-
menheerey 15 Yes. 34. IFbod ▼•
JDoofiet, 18 Ves. 130. Moniesqmeu
Y. Sandysj ib. 303. Strachmn ▼.
Brander^ ub. snp. Lewee ▼. Morgany

5 Price 43.

(«) S. C. 3 Cox 330.

(«) S. C. 1 Ves. Jun. 330. PwrceU
¥. M'Namara^ ub. snp. Huguenin ▼.
Basekyy 14 Ves. 373. /farn# v. Tre-
menheere, nb. snp. H^al/ ▼. Grove^
nb. sap. MedHcot ▼. 0*Donnely 1 Ba.

6 Be. 156. Dawson ▼. Masse^y 1 Ba.
& Be. 31 9. Dunbar y. Tredennicky 3
Ba. ft Be. 304. Se/fe^ ▼• Rhoades,
3S. &S.41.

(^) To these cases maj be added
the established role respecting trustees
where purchasing from themselres, as
stated bj the Master of the Rolls (Lord
Alvanlej). <^ That any trustee purchas*
lag the truit property, is liable to hare
the purchase set aside, if in any reason-
able time" {Gregory ?. Gregory y Coop.

301. Chakner ▼• Brudky, Ij. fl^ W.
59.) ^the cestttt que trust chooses to
say he is not satisfied with it" Cwnjh
bell ▼. IValkery 5 Ves. 680. Fox ▼.
Mackreihj ub. snp. Whicheote t.
Laurence^ 3 Ves. 740. Ex parts
Reynolds^ 5 Ves. 707. Ex parte
Hughes^ 6 Ves. 617. Ex parte Laeey^
6 Ves. 635. Lister v. Lister, 6 Ves.
631. Ex parte Jamesy 8 Ves. 337.
Downes v. Grazehrooky 3 Mer. S07.
FF%o/lon T. Toeiitf, 5 Mad. 64. M'NtiU
▼. CahiUy 3 Bligh 360. Chalmer t.
Bradleyy ub. sup. A trastee however
may buy from the cestui que trust, pro-
vided there is a distinct and clear osii<-
tract between them, and no advaoUge
taken by him of his character of trustee.
Coles Y. Trecothicky 9 Ves. 334. Ran^
(to// v.JSrrmglon, 10 Ves. 433. Morse
Y. Roy of y 13 Ves. 355. Sanderson t.
Walkery 13 Ves. 601. Downes v.
(7rase5rpoil,ub.sup. Naylorr.fVinchy
1 S. & S. 565.

(«) See Nantes y. Corroeky 9 Yes.
183.

De Tefjn. 8. MkhMeUt, VTSU ISS

,t^^'

HIGDEN ET AL* v. WILLIAMSON.

Case SO.

Bankrnptf.

Cause by Comeni, Sir Joseph

Jektll^
"■"■"" Master of

^. seised in fee of a copyhold estate^ surrendered the pre* ^^ Rolls,

mises to the use of his will^ and afterwards devised them to §9^.^.^^

his daughter for life, then to trustees to be sold^ and the li4.pl. 8.

money arising by the sale to be divided amongst suoh of his interes^^

daughter's children^ as should be living at the time cS her S^|!P^^^-^*

death. The testator died, and the daughter had issue (among aMignabie by

others,) a son^ who was a trader ; and becoming a bankrupt^ j^i^^f^inSlfr-

the coounissioners assigned over all the bankrupt's estate. ^^."^^^^

The bankrupt got his certificate allowed, and then his A«striiaUbe

mother died. Jf"^*! v

deato ; A. oaa
On a bill brought by the assignees for the bankrupt's iraiieB.wlio

shoi^ Of the money arising by the sale, it ^tas objected, that b^^^,^ta

no manner of right to this contingent interest was vested at ^^ certiScita

the time of the assignment made by the commissioners, any which A. diet 1

moie than a right to lands can be said to vest in an heir ^?T^i

, *^ flpent iniefeic ifl

apparent during the life of his ancestor; and the case of uable to tho
Jacohton v. Williams was cited, where it was held by the foSJl^i^S'ia
Lord Cawper, that the possibility of a right belonging to a ^^\^? |? *^
bankrupt was not assignable. time might

But his Honour, upon debate, decreed (1) for the plaintiffs, j"*^ wieascd
distinguishing the principal case from that of Jacobson v.
fFilUams {a) ; for there the husband, the bankrupt, could (a)Vol.l.38S.
not have come at his wife's portion by the aid of equity^
without making some provision for her; and it was not rea* L ^'^ 3
sonable the assignees, who stood but in his place, and
derived their claim from him, should be more favoured.
Also the Master of the Rolls said^ he laid his finger, and
chiefly grounded his opinion, on the words of the statute of
13 EKx. cap. 7* ^^cL 2. which enacts, ** that the commis-
'^ sioners shall be empowered to assign over all that the
** bankrupt might depart withal." Now here the son might.

(1) Reg. Lib. A. 1731. fol. 188. by tht nam* of Higden v. fVatkinton.

133 Dc Term: 8. MkhadU, 173L

HiGDEN in hia motlier's lifetime^ have released this contmgent inte*

^' rest; so that the commissioners^ by virtue of that act/are

' enabled to assign it, and consequently their assignees must

be well entitled.

Lord Chan« Note; in Michaelmas 1732, this cause came on by way of

cellor King. ^^^^^ ^{^^ ^jj^ j^^j Chancellor King, who affirmed (1) the

decree at the Rolls, partly for the reason before given, {viz.)
because the bankrupt himself might have departed with this
contingent interest; also, for that the act of 21 Jac. 1. cep.
19. sect, 1. declares, tl&t the statutes relating to bankrupts
shall in all things be largely and beneficially expounded for
the relief of creditors : and further, because the statutes for
discharging J[>ankrupts on certificates never intended to en-
title the bankrupt to any estate by virtue of any claim ante-
rior (as his Lordship expressed it) to his btokruptcy, as the
title in question clearly was ; besides, the word possibility is
in all the [C] latter statutes touching bankrupts. (2)

[C] See the 5 Geo, % cap, 30. the words of which are, ^^ all such effects, of
^^ which the party was possessed or interested in, or whereby he hath, or may ex-
^^ pect, any profit, possibility of profit, benefit or advantage whatsoe?er.''(x)

(1) Reg. Lib. A. 1732. fol. 64. 1 vol. 382. Jewton v. Mauliony 2 Atk.

(2) Vide Jacobion v. WtlUams, ante, 420.Cy)

(«) See 6 Ceo. 4. c. 16* s. 63. (y) And see Moth v. Fromsy Ambler 304.

DeTerm. PmcJus, 173t.

1S4

TERM. PASCHiE, 1732

John Gordon^ Administrator of Bar-
bara his late Wife.

Henry Raynes, Doctor of Laws^ el-
dest Son and Heir of Sir Richard.
Raynes^ Knt.

I Plaintiff;

Defendant.

The bill was^ to compel the raising of the sum of 6000/.
for the portion of Barbara the plaintiff's late wife, and the
only daughter and issue of the defendant Doctor Rajfries, by
Elizabeth his late deceased wife ; and to raise it out of a
reversionary term of 1000 years, expectant on the defendant
Doctor Haynes's death.

*Upon the marriage of the defendant, Doctor RayneSy with
Elizabeth Fleydelt, by indentures of lease and release, dated
the 13th and 14th of October 1704, in consideration of that
marriage, and of 5000/. portion. Sir Richard Raynes the
father conveyed divers lands in Surrey, &c. to trustees and
their heirs, to the use of the defendant, Doctor Raynes, for
his life sans waste, remainder to trustees during his life, to
support contingent remainders, remainder to the use of Eli-
zabeth his intended yni% for her life, for her jointure, re-
mainder to the first, 8fc* son of the marriage in tail male
successively, remainder to trustees for 1000 years, remainder
to Doctor Raynes in tail male general, remainder to Sir
Richard Raynes in fee.

The trust of the 1000 years term was declared to be, that
in case there should be no son of the marriage bom in the
husband's lifetime, or. after his death; or if there should be
a son, and that son should die before twenty-one, and withr

Case 31.

Lord Chan«

cellor Kino.

Lord C. J.

Raymond,

Master of

the RoHs.

Term of 1000
yean to Mcure
dMi|hten'
portions pay-
able at fiz-
teen; prorlao,
if no daughter
at the time of
failure of issue
male, the por-
tion to sink.
There is a
daughter, who
attains to riz*
teen, and maj^
ries without
consent, and
no son by the
marriage: but
the daughter
dies in the life-
time of the
father and mo-
ther, and con-
sequently
while there
might be a
son ; the por«
tion sinks.

[ •"* ]

iS6

Be Tend. Pa^chm, Vi9&.

GORDOK

Ratnes.

[136]

out issue, and there should be one or more daughters bom in
the lifetime of the husband^ or after his death; then that
the trustees should by sale, demise, or mortgage, or by rents
and profitd in the mean time, in case such term should hare
taken effect in possession, raise the sum of 6000/. portion for
the daughter of the marriage, if but one, and to be divided
amongst them, if more than one, payable at their age of six*
teen, if either the husband or wife should be then dead: but
if both should be at that time living, then within six calendar
months after the death of either the husband or wife, with
interest for the same from the death of Doctor Saynes and
Elizabeth his wife, or either of them ; and in case any of the
daughters should die before the portion became payable, her
share to go to the survivors.

Proviso, that if the next person in remainder should pay
the portions to the daughter or daughters; or, if at the time
of such failure of issue male of the said Doctor Raynes (the
husband) by Elizabetli his wife, to be begotten as aforesind,
there should happen to be no such daughter of their bodies
begotten, nor any such daughter to be afterwards born alive;
or there bcSng such, all of them should happen to die before
iheir respective ages of sixteen, then, and in any of the said
cases, the term to attend the inheritance.

The marriage took effect, and there was no son thereby,
and but one daughter, who attained her age of sixteen in the
lifetime of her father and mother, and widiout their consent
intermarried with the plaintiff, Mr. Gordon, who never made
any settlement on her. The daughter died in the lifetimie of
both father and mother, within four months after the mar-
riage, and without issue.

In order to the determination of this case, the Lord Chan*
cellor called to his assistance the Lord Chief Justice Rag^
mand and the Master of the Rolls. When,

For the plaintiff it was insisted, that his having marned
the daughter without the consent of her parents, as also his
never having made any settlement on her, together with her
having died within four months after the marriage without
issue : all these circumstances made no manner of alteration
in the right to the portion ; for that, supposing the plaintiff
to have married with the parents' consent, to have made a
settlement on his wife, and to have had issue by her living ;
if in these, or any of these cases, he had been entitled to the
€000/. poction^ he must even now have the very MWie 4ght

ik Term. Pa»eka, ItH. 1ST

fbefeto, wMdi depended oh tbe woirdsxif tiife fleCtiemeiit inad* Goasoa

before marriage, and could not be varied by any subseqaent n. ^,-g

acddent, quod curia amcessH: that at the age of rixteen (bo >

often mentioned in tbe settlement) the right to the portion

vestiedin'the daughter, although tbe same Was not raisable tSl

within six months after the death of the father or moAer, or

one of fhem ; tmd fliey compared It to the caseaf BuUer v.

BmtcomA, (tx) where a tenn of 500 years was limited, upon (a} Vol.L44e.

fidhtre of issue male of the marriage, lor mising -portioiis far

daughters, payable at twenty-^me or marriage, which vhould

first Imppen ; and the trtlstees were to loise the portions by

sale or mortgage, when the term should commence ; and

there itwns t^reed, that the r^ht to the portion vested on

the daughter's attaining twenty-one, her fiithor being dead,

so that ^here could be no son, and was an interest transr

tnissible tolier executors: but that the portion could ndt be

raised nntU the mother died, in regard tiiat until then the

term was not to commence.

Tliat the clause of the trust of the tenn declaring, that in
case there were several daughters, if any of them should die
before the portion should be payable, her share should go to
the survivor, impGed, that if there had not been tlMt deda-
ration, it would have vested in such daughter so dying as
aforesaid; and since no provision was made in case of tibere
being but one daughter, it seemed natural to infier, that the
right to the portion vested in such daughter, Ako, as the
moiher brought SOOD/. portion into the fiunUy, it weraM be
hard Aat the daughter should marry «Dd beentided to no
portion.

On the other side it was said, and so resolved by the court,
that in the case of Butler v. Duncwrtb, the portion was held [ ^^^ ]
to be vested in all events at the daughter's attaining her age
of twenty-one, though not raisable till the commencement of
the term ; whereas in the principal case it was not to vest
uiiHl six months after the death of either the husband or wife,
and the daughter happened to die in the lifetime of both.
That this portion being to arise out of land, and the daughter Portion m-
dying before it became payable, the same sunk into the land, ^^4^ ^ ^^
agreed>ly to the settled distinction between a portion secured ^^JS^J^
iMit<of a personal estate, and one chai^d on laod^ which rule Uon becomes

pAVftUe • it
nnkt into this land. So if a legacy be given out of land to J. S. payable at ^1, and J. S. diet
before 81; the legacy sinlu. Secua la both csaee^^wlttre the legacy or portion iasiveB out of
Apcraoaeleatate,

138

De Term. Paacka, i73Si:

[139]

GoBDON holds also with regard to legacies, [A] {viz.) if a legacy be
P *'* given out of a personal estate to J. S. payable at his age of

twenty-one, and he dies before twenty^one, yet the legacy
shall go to his executors. On the contrary where a legacy
is given out of a real estate payable at twenty-one, and the
legatee dies before that age, the legacy sinks.

With respect to the clause of the trust of the term dedar-
ingf that in case there should be several daughters, and any
of them should die before their portions became payable, in
such case their pordons should go to the survivors ; this was
said to be a distinct clause, to take place only where there
shoidd be several daughters, and could not any way a£kct or
extend to the case where there was but one daughter ; con-
sequently it was nothing to the purpose : but if any use was
to be made therpof, it might as well be inferred from thence,
that as, where there should be several daughters, and one
should die before her portion became payable, her executors
or administrators were to be excluded : so where there was
but one daughter, and she should happen to die before her
portion became payable, neither should her representatives
have any right thereto; that the proviso made it still plainer
that the portion was to sink, this being, that if at the time
of failure of issue^ male of the swd marriage, there should
happen to be no daughter of the marriage, then the 1000
years' term should be in trust to attend the inheritance : now
no daughter of the marriage was living at the time of fiEulure
of issue male, and there was then a failure of issue male,
when it became impossible there should be issue male, which
was not while both husband and wife were living ; nay, if
the husband had died first, there would have been still a possi-
bility of issue male, with which the wife might have been
privement enseint : but when the wife died without issue,
then and not before, there might be said to be a failure of
issue male : that it could not be said, that at the death of
the daughter, (though there was then no son) there was a
failure of issue male; for a son might be bom afterwards ;
so if such son had died, living both the father and mother.

[A] This distinction with regard to legacies, was agreed to and settled by
the Master of the Rolls in the case of Whiddon v. Oxenham, 7 July 1731 (x>;
and as to portions, see Jennings v. Looksy 2 vol. 276. and the Duke of Ckando§
V. Taiboty 610.

(«} % Eq. Ca. Ab. 546. pi. 34,

De Term: Pascha, 1762. ^139

&> thaty b common sense and reason, the fulure of issue Gordon
•male must be on the death of the wife without a son, which p ^^^^
4d this case had since happened.

Lastly, That although it might seem hard the daughter
iihould marry and have no portion, notwithstanding her
mother had brought 5000/. into the funily ; yet it must, on
the other hand, be allowe'd to have been yery reasonable, to
leave the right to the daughter's portion in suspence and
contingency during the joint lives of the father and mother,
to the intent she might be in some measure kept in a de-
pendence upon them, and under no temptation to marry im-
providently, which was the very reason g^ven in the case (6) [ 140 ]
t^ Sit fFilhrnghfy* Hkhnanv. Sir Siephen Anderson. Also, (a)2Ven»
that in the case of portbns secured by marriage settlements,
(regularly speaking) the court in the construction ought, not
,to omit, or add any words thereto, for this would be not to
construe, but make a settlement, espedally where the settle-
ment would bear a reasonable construction, as in the present
case it plainly would. Wherefore, on iht first speaking to
the case, this bill for the portion was dismissed with great
clearness^ by the unanimous opinion of the Lord Chancellor,
the Lord Chief Justice Raymond^ and the Master of the
Rolls : but without co8t^(l) .

(1) Reg. Lib. A. 1731. foL SCL

DA COSTA V. DA COSTA, Case 32.

Thjs plaintiffii were the two infent children of Jmeph Da ^^^^ JJ^'
CoMta FiUa Beat, who lately died possessed of an estate ^^ « Eo Ca Ab '
150.000/. which by his will he gave equally between the de- 453. pi. 9.
fendaat his widow, and his two infimt children, and made his ^ ^^^r left a
widow one of his executors. After the testator's death, a MUte to'two
hill was exhibited in chancery in the name of the two in&nt *"*"* *J^**'
children by Joseph Mendes Da Costa, who was their rela- made his wife
tSon, as their prochrin amy, to have an account and discovery ^'^"^■^ ^

bill . „

of the pesBonal estate of the plaintiffs the infants' father, broaght in tbe
To which bill the defendant was subpoenaed to appear and by a'raii^M!!*

answer. ■• procbein

amy. to caU
tKoMfdwrfoaaaeeoaot. Oaafldaritof leftndotber rdatloin^tbaltUfnitlii the infiuit'i
■Mvis oat of pl^ne, aad^BiM tfrnr tbe lafSufa nod, llill eo^K mMM tt lo « MmUt, wbo
tevortfaif the Miier tQjbe 90# thv Mit WM itqrel.

'MO Be Tamu Rmclut, VTSt.

Bi4 CostA W&erenpon weveiO. ot tiie lelaftkm of tim mtuitM by tfe

Da Cwjl '^^^'^ "^^^ txigetliier witk seme o£ theBr ielati«ui by tike

mother's side^ nearer than flue /trocAajn ovy, mads anafir

f 141 ] davit timt due care waa taken €i the mfiiniBy and of tficir es-

Caie, with which llicy wcve well latiafied ; and tiuife thejr bfr

lieved t^ia- soM; w«a exhibited rather oat of at pique than anj

veal G^nena for the in&nta' benefit^ there being a anit koA-

tuted in the spiriteial court hj tiie procheiH.ataj^'s son agma^

the ia&at'a mother, upon anatriage oontract allfgad toha»

heen made bjr her with hinu

The Master of the BdUs on a petition (1) ordered Aak it
fdumld be wferred to a Master to certify, whether this wok
wtm brought for the benefit of the infimts flie plaiutifs^ sad
whether it was proper the aame should be proatcuted er
not. (;r)*— The defendant to procure the report within s
month. Ptamraant to which the Master made hie report,
elating the fiict aa ahorc, iind that he did not conccsre thb
aidt, ap now bfoyght, waa for the benefit of the infimta, or
f rqser to be prosecuted > but that he thought, if a prc^ei
bill were bvooght by a proper frothem awjf^ with n ml in-
- tention to seeuoe the estate of tlie infimts^ it ought be for
their benefit that su^ a suit aliould be prosecuted.
The agents for the defendant peiceiTing ftlie oinnian of tht

XfznBvCF, sBOCk u uvfF* cfiu KIT vD^ A&jiuuw iimnvr UT onVvOVF' Vff v^

thein amjf^ for an aocowit of the infants' estate, in order
that it might be improved; and now moved the Lord
Chancellor, tlmt the former bill in the infants' name might

(«) SeeTuraer be dismissed, and the prochein amy named therein, (a) pay

foi. 297. ' the costs, (y) .
[ XAfi ] jLord Chancellor : The report of the Master not being ez-

oej^ted to^ must b^ taken to be [B] traew And ainoe aueh

TB} A Master bj his report certified, that tbe defendant bad snbmhted io
deliver ptrt of the phte io question to tbo pbuatlff, to which the deiradaat
eaceptedy iosiitiag that he had m»de na such subaiisMQ. (0 Reaelved tfiat,.^

'* ■■ ■' m 9 p

(1) E« Lib. A. 1731. foU ^7%.

(x) As to the power of the proehein Cox f 85. Aman. 4 Mad. 491. BueU^

qm» to obtain this reference, see th^ v. Buckiany % Dick. 794. Pearc^ f*

jndgveni in Taner v. Ivie^ 2 Yez. sen. Pearce, 9 Yes. 548. Morgan r.

4d6., and contra, Jbit^s v. PoweUy % Crumpton^ Banb. 339.

Mer. 141. (0 As to the admission of a fasihj

(^) As te %.pto0k^ am^ of ^i^ igt apartj before the ^falter, aea (#ofd$«Hi

ftat (aia§ liahfe. to asii% ma TaRc» a. . nestf s O rdbr^ Oek ^ \ QMh BaMftH^a
Afe^ ub. sap. WhsUokmr v. MarUtry 1 ' Or*Ma kt Gha^ SMi

^ Term. Paaehas, 178^. 1^

•

report certifies, that it is not proper this suit should be pro-
secuted, not being for the infants' benefit, I shall not suffer
any further proceedings upon it, at least as yet. But seeing
the Master reports, that a suit may be brought for the bene-
fit of the infants (2) ; and it does not at present appear whe-
ther the last bill comes within that description ; all I shall do
will be, to prevent the parties firom proceeding in both bills,
which would be vexatious. Wherefore let all proceedings
stay on the first bill, in disfavour of which the Master has
reported.

means of the report, the proof lay on the defendaat, whose affidavit at least was
necessary to falsify what had been certified; for, though there is no reason that
the Master's report should be arbitrary and conclasi?e upon any one ; yet it
shall be presumed, primi facie, to be true ; and turn it on the other side to shew
the contrary. By the Lord Parker^ the seal before Easter term, 1720, Allen
V. PenfUehury.

(«) Upon such a reference, the of the suit, or any other cir^n^stRiice
Master nay point out any improve- for the infant*' beue|itt ^f^/fcROfl v.
ment that m||^nt b^ made in the form SulUvan^ i Men 43.

.t -2i

us Dt Term. &. MichaelU, 17S2.

4^i^^ TERM. S MICHAELIS, 1732.

Otfe SS. SOUTH SEA COMPANY v'. WYMONDSELL.

Lord Chan-
cellor KiHo. 'Thb South'Sea company brought a bill against the defendant
7/^1 % ^01 ^^ ^ contract made by the defendant with Mr. Surman^ the
pi.' 7. The tu- deputy cashier of the company^ in the year 1720| touching
tteM'^no"^^!!^' 20,000/. Sauth'sea stock ; suggesting several frauds, and
where the bill shewing, that by the (a) statute against the SoutU-sea di-
fhi^Tbat rectors all the estate, goods, and effects, of the said Surman
b^w^^b^ were vested in the company for the benefit of the proprietors,
the bill, that The defendant pleaded the statute of limitations, and that, if
J^^^j^lJII^JI^^ any such contract was made by the defendant with Surman^
within lis it was made above six years before the filing of the bill, and
thebiU m denied the matters of fraud.

filed.

(a) 7 Geo. 1. c. 27. In the cue of the Sooth-eea compeoy, in whom the estatee of the Inte
oirecton are Tested by act of parliament ; where the etatnte of limitationB might hare been
pleaded against Ute late directon> it is pleadable agiinst the company, who stand bat in anch
directors' place.

It was insisted, that the plainti£b claiming by the act of

[ 144 ] parliament, thai was a matter of record, and the demand in

question to be taken as a debt on record, consequently not

barrable by the statute of limitations : and it was compared

((] West 2.C. to an action for tithes on the statute of Edward the Sixth,

n.^^i Rich. 3. ^ of debt on an (A) escape, 3fc.

So whnt. But the Lord Chancellor held this to be clearly otherwise ;

Jj2Jj!U*Sf the *^' ^^^ ^^ Sauth'Sea company could not be in a better case
eiTecu of a than Sumum was, against whom, as the defendant WymanA-^

bankmpt

claims undar the act of pailiament ; jret as the statate of limitations might bs pleaded against

the^baiikr^pCi by tfteiitos«nBoa It is pleadabU against mch aa^nae.

JD« Term. 8. Mickadis, l7Si.. 144

%ell might have pleaded the statute, so might he also do South*iba
against the company, who stood but in Surman's place; ^^^^^^'^
like the case of an assignee under a commission of bank- Wymoms*
ruptcy, who^ though he claims Under the acts concerning iyu*.
bankrupts, and also by virtue of the assignment, which is
under the great seal ; yet, as he stands only in the place of
the bankrupt against whom the statute of limitations is
pleadable, so is he (the assignee) liable to be barred thereby.

It was then objected^ that this bill was to be relieved
against a fraud, and therefore not within the statute of
limitations ; fraud being a secret transaction, and probably
not discovered within six years: and for this the Lord
fParringtofi'9 case was cited, where it was held in this
court, and affirmed in the House of Lords, that a bill to be
rdieved against. a fraud, was not within the statute of
limitations, {x)

On the contrary it was said, if the fraud was known and
discovered above six years before exhibiting the bill ; this,
though a fraud, woidd be barred by the statute of limita^^
tions ; and that even in the case of the Lord Warrington^
the statute was pleaded : whereupon the plaintiff, the Lord
fFbarringtony was advised to, and accordingly did, amend his [ 149 y
bill, by charging, that he did discover this fraud within six
years before exhibiting his bill. After which the Lord
fPlarringion had a decree, and that decree was affirmed by
the Lords, (as Mr. Mead, who was of counsel in that cause,
informed the court ;) wherefore it was insisted, that in the
present case it ought to be charged in the bill, that the
fraud was discovered within the six years, if the fact
were so.

And of this opinion was the Lord Chancellor {y) : but'
here being a charge of great frauds, and some circum-
stances thereof not fully denied, the defendant waa ordered
to answer the bill, with liberty for the pbuntiflb to except,
and the benefit of the statute of limitations to-be saved to
the defendant.

(«) Booth V. tVarrington, 1 Bro. Browne, 3 Bro. C. C. dST.
P. C. 445. And see Bieknell ▼• (y) See Hoxtend^n v. Annesky, 2,
Goughy S Atk. 55S. Dehrame v. Sch. and Let 034.

l*i be term. S. Michaetii, 17$d,

LoS'c^- ATTORNEY-GENERAL v. RIGBY.

cellor Kino.

2 Eq. Ca. Ab. Onb seiaed in fee of divers manors and lands in the coimtjr
One seiMd in ^^ Lancaster, granted a rent charge thereout of 20/. per
feeofamanory omttim for a charity^ towards the support of several poor old
^fee ourof ™G^ j cmd afterwards the founder of this charity granted the
it, as a charity, manors^ luids^ Sfc. that were charged with the 20/. per
of aeyerai poor t6tnum to J. S. and his heirs, and died. The question was,
aAenrardT^ wh(j shduld faave the nomination of these poor men that were
grants the ma^ to paftafce of the charity : whether the grantee of the land,
ZT^L"" «nd fab heiTB, or the hei/Jf the grantor <rf the charity ?
mination of After debate it was decreed, that the heir of the grantor

the poor ppf- , , ** ,

sons belongs should have the nomination, and that, the same being inci-
the'^Mtor^* dent to the founder (1) and his heirs, or to those whom he
and does not dk<>uld appoint, When the lands * were granted away, the
mKoor, ^ -rekit^ch^rge, a thing independent and collateral, did not pass
[ * 146 ] therewith like « r^nt-service, which is incident to the rever-
sion ; T^ereas this being a rent-charge, and in fee, had no re-
version. [A] But forasmuch as the grmtees and owners of the
land had for upwards of sixty years enjoyed the nomination
bf the {Person's, who htid partaken of the charity ; the court
allowed to them all the payments they had made to any of
the poor, though nominated by themsdvee^ and would net
disturb aiiy thing that had been already done. (2)

[A] A man fdnnds a charity for alms-ltotise% : th6 foond^r and his \idn hav^
a right of Domnrttion bf these alms-people ; but may forfeit it by a cotrrfpt Or
improper nomiaation of such as are not fit objects of the charity, or by making
no nomioatioif at all ; but this neglect of nomination must be after such lime, as
the founder, &c., have had notice of the vacancy ; and without proof of siich
notice, it is noTaii'lt ^y the Lon'd Parker, Ammetf-Oenertdx. heigh, Trmii^,
1721. («)

(1) Eden v. Fogter, ante, % f d. 3^. 108. ( ^)
Attome^'^General v. Price, 3 Atk. (2) Reg. Lib. A. 1732. fol. 46.

(«) See thts'cdde Its stated in AUar^ {y) Attom9$f'6tfteriU v. BawUbeey
heyJSreneTal v. BtmUbety 2 Ves. jun. ub. sup. .
380.

MkTerm. & Mickadb, I7SR MA

MORRICE V. HANKEY. *^ *^-

Lord Chan-
Thji question was, touching the breach of an mjunction [B]. c«>lo' Kxkg.
The defendant in ibis court bronght an action against the ^^the words
pliuntiffj as executor of Humphrey Morricef esq. The de- l"^^^
fendant at law * brought a bill ; and after the defendant in this Ltendedofan
court had delivered a declaration^ upon such defendant's JjJSttfewMdi
pragring time to answer, the plaintiff got an ii^unction. The Judioium in-
plaintiff at hiw proceeded ther^i and on j)Une administravii ^^IJ^dof aV
pkaded^ took judgment de boms testaioris cum acciderint; ?vj^^^y*»

tilt <kfaidant be is ezecntkNi^ »nd pleads pleme admisistrayit, joid th^'plwtUP at law enten
Jadgment de bonU testatoris cum acciderint, he may proceed to a ncire fkclas to enqiiire of

I BMninffof tbe idJoBCUoB i«, tM thodelBBdsiit

iti, and enter jttdgttcot thsrettpOA $ fortibe
may proceed Bo.£ar, as tlut nothing ihall r^mitin. hntlo Uke out ezecntion, after |he tii)Q«G»
tion Is diwolTed. [ *147 ]

[Bj The words of such ii^anction are, that all proceedings shall stay ; UcebU
autem for the defendant in equity, (who is plahitiir at kw) piaeUum ad com'
maaum legem poituiarey et ad iriaiioHem tnde ptpeedere^ eipre defeetu pladH^,
judicium mirare; execuHo vero vigor e prmseniium retardaiur. After serriee
of an injunction of this kind, the defendant at law put in a frivolous plea to an
action of debt on a bond, which the plaintiff demurred to, and having gotten it*
Biad6 a conciUwny after argument, obtained, judgweiit. Also upoa another bond^
after the injanctivn served on the deCeadsMt sod his ifttoroey, they delivered a
declaration. It was objected, first, with .regard to the judgment, that this was a
breach of the injunction ; for that in one case on^, (viz») pro defedu phtdiip
was the plaintiff at liberty to enter judgment, and here was no want of a plea.
Also, that the delivering a declaration in the other action was a manifest con«
tempt, as had been often dietermined. With respect to the first, the Lord Chan-
cellor strongly inclined to think this no contempt, since a frivolous plea is as no
plea; and that, as th^ plaintiff at law might, by the express terms of^e
injunction, proceed to try an issue on the fact, by the. same reason he mighi,
proceed to try an issue in law, which when the court had determined, and fauid .
the plea ill, is, upon the matter, no plea. And ia relation to the second poia^
his lordship thought that, had there not been some resolutions to the contnuryy
the delivery of the declaration was no breach of the injunction, since by tlie j^vJi
terms thereof the plahitiff is at tiberty to -proceed to trial, and thedeUvety^ kc.
h an iitddent, without which thera can be no trial. Ey the L^rd Farkeff '
SMney v^ Heihringlon^ TrinMgy I719^(«)

(a) The pmctiee atpiMent ia «i^ other ca^es tl^ writ, not the dedart-

dentood t» be that the delivecyof tiop, is the coimmencemeK^t of the ac-

a dedaratioD, is a breach of the ia-. tion. See no^ in 2 Williams's Saun»

jpnotiHi. .fiiii!l»Ar T. Pfiora^n, 10 Yes. ders, 1 c Tidd's practice, 4)3, 147,

45S. Bullen TLOve^ 16 Ves. 141% 150.; and in BuUen y.Ov^yj the act

Mills V. Cobb^j 1 Men S. It may be which the court held to be a breach,

remarked, however, that the action iir waa ibb*^ the filin§ or delivery of &d»-

the last of these cases was an eject- claration, but one whid> wtglil hmn.OBh
ment, where the declaration is the com- dangered the liberty of the party.
Bseiicementof'^the actioa; whereu in

Dt Term. 3. Mchadig, i73i.

MORRICE

Hanket.

[148]

A scire facias
11 not in nature
of a new ac-
tion, bat a
continuation
of tba old one.

after which he took out a scire facias in order to-ah inquiijf^
of asBets.

Whereupon It was moved that this waa a breach of the
injunction^ heing a proceeding after judgment; whereas
the injunction only gave leave to enter judgment ; that the
zcvre facias was in nature of a new action on the judgnietit^
which ought not to have been brought without leave of ih€
court.

But by the Lord Chancellor. Not having heard any pre-
cedent cited in this case, I am therefore to be guided by the
reason of the things and to prevent a delay of justice. It is
admitted^ that after an interlocutory judgment (as by de-
fault, or on demurrer,) the plaintiiF may go on to ascertain
his damages. Now the meaning of the rule in the present
case is, that, notwithstan^g the injunction, tiie plaintiff at
law should be at liberty to proceed to an efifectual judgment ;
all that the court intends to stop being the execution, {x)
But the plaintiff at law is nevertheless allowed to proceed so
far, as that he may be at liberty eo imsianie that the usjunc*
tion shall be dissolved, to take out execution ;' neither is the
scire facias like a new action upon the jud^gment, but a con-
tinuation only of the old one (y) on the same record with
thatj and in nature of a proceeding after an interlocutory
judgment, to a final one. Wherefore the court ruled, that
th^ bringing this scire facias was no breach of the injjunc-
tion. {z)

(xy Id the Exchequer, an injunction
to stay proceedtns^s at law extends to
all step# ID a cause, (*xcept proceeding to
trial whefea plaiatrff is in a eondition to
join issue in an vssuable term in a country
cause. See Fowl. Exch. Pr. 3d. Ed. 918.

(Sf) bright t. Nuttj 1 T. R. 388.
Tidd's Practice, 1099.

(z) In Franco v. Franco^ 2 Cox
430., where an injnnction had been ob-
tained to restraiu proceedings at law
upon an award^ which, before serrisft
of the injonctiob, had been made a rub
of court in K. B. Lend Rosslyn held,^
that the obtaining a rule to shew cause
why an attachment s)iould not issn^ for

non-performance of the award wa^ m0
breach of the injunction ; and that the
rule might have been made absolute for
attachment without breach, so as the at-
tachment was not executed. In Chaplin
▼• Cooper^ 1 V. and B. 16., an obligor
in a joint and several bond had obtain^
ed an injunction in a suit to which his
co-obligor was not a partj ; execution,
was afterwards taken out upon a joint
judgment by the defendant in equitj ;
and notice of the iojunction was given
to the sheriff, with directions to take
co-obligor only, and not the plaintiff in
equity ; and this was held not to bo a
breach of the injunctSon.

!•

m Tetfh: & Michadu, 1782. 148

JJORTH V. EARL AND COONTESS Op STRAFFORD. Cwe 3tf.

Lord Chair-'

TriB pbdnliff North*% &ther was lord of the manor of 2>« in cellor Kino*
SuffhUcy of which Sir Hemy Johmon hdd several parcels of L^^ ^?'
topyhold by several quit-rents, and had been admitted to the bill u bronsbt
vB^tiA ; and Sir Henry dying, these copyholds descended to ^^^^
his daughter and heir, the Countess of Strafford^ Where- yerafinefors
bpon Mr. Draycoitj the Lord StrqfbntB agtent, wrote a ^^^^e^nt'^*
letter to the agent of Mr. North the father, (lo^^d of the ^^^ ^
manor) desiring Mr. North would admit the Countess to Admitted by
these copyholds. Accordingly Mr. Narih, adnutted the ^^"Sii'S-
Countess by ohe Mr. Bawdrey, (who was also agent for Mr. tendi the at-
North) her attorney, as tenant to the copyhold premisses, authority to^
for Which several fines were set, amounting to 40/. mkuScc • ^h

Sometime after this, Mr. North, the then lord of the defendant an-
taianor died, having the plaintiff Mr. North, his son and *^^^
heir, and also executor, who brought this *bill against the mnrt aa to r«-
Earl and Countess of Strafford, to recover the fine set upon mamr held
the admittance, and lilcewise to be paid the quit-rents tliat s**^
were in arrear in the plaintiff's father's life-time, as also [ * ^40 ]
those that had incurred since his death. The bill further
charged, that the lands out of which the quit-rents iimied
were not known, being by great length of time, and by the
tenants having enjoyed those promiscuously with other
lands, obscured with respect to the boundaries ; but that the
defendants had in their custody or power some writing or
paper manifesting the said boundaries | also that the de-
fendant the Lord Strqffbrd, did now deny, that he gave any
authority to his agent Mr. Draycott, or to Mr. Ba/mdrey,
that his Countess should be admitted by Mr. Bowdany as
her attorney.

The defendants,' the Earl and Countess of Strafford, as to
that part of the bill which sought to compel them to pay
the arrears of the quit- rent, or which sought any relief
touching the same, demurred, for that the plaintiff had his
remedy at law for these arrears of quit-rent^ either by dis-
tress or action of debt, on the statute of H. 8. The de-
fendants did likewise put in another separate demurrer, as
to such part of the bill as sought to compel them to pay the
copyhold fine, or which prayed any relief touching the same.

141 De Term. & WchadU, 17%

North Against tHe demurrer it was urged^ that the phuntiff's

^* remedy was proper in equity, by way of commiasion to set

Strafford. ^^^ ^^ boundaries of the copyholds, which were expressly

L6rd brIiiM ■ ctiarged by the bSl to have bem obscured through length dt

bOiagAiiiit time, and by Sir Henry Johnson* a^ having enjoyed those

wvcraqidt^ eopyfaolds promiscuoudy, * with Other lands ; and that the

£t ihefii^ plaintiff could hot have aoy remedy by distress and avowry,

oat of which wtthout particularizing the very lands out of which each

SniA^^rm- '^"^^ issuedj and that it had been settled to be a good

■oa ofihe eqiut{v«' and a sufficient reason for suinc in thb court for a

ses&aofthe quit^rent of small value ; that this objection was strengthened

l^'^ennfe ^^ ^® Mawer of the Earl hhnself, setting forth, that he did

is cuppoMd to not know the particular lands that were copyhold, which

o^'lulnda, U ^bsmAr it neotesary a commission should go. So that, if this

S^^juihlw ^c^^'i^'^' \ifAdf the plaintiff would appear to have a plain

aiifw«n as to dut^ due to him, and yet would be destitute of all remedy

4iiinm«B to^ whereby to recover it. Also with respect to the admittance}

reU«f.s tii»de«- if thiD lovd should sue for the fine, the defendants might

q!^)^*^^ insist they never consented to such admittance ; and in case

[ * 150 1 ^^ pbuntiff were to sue for the forfeiture, on account of the

defendants not having come in to be admitted, should the

eourt^^roUs be produced^ the lord would hardly firom them be

encouraged to pfoceed against the defendants for a fcMrfeitoie

in not coming in to be admitted.

But notwithstanding this olljection, the court allowed the
demurrer. The liord Chancellor said, he had not known
Ihia case before <^ a demurrer as to relief, (jt) That had
there been no demurrer, the oourt on &e hearing would
have ^relieved : but htf e the defendant had not demurred as
to any diseovery, but as to relief oidy. So that^ upon
aUonring the demurrer, the plaintiff was at liberty, if ha
should think'Ihe defen^mt had. not answered the whole bill,
to except SB to Any pan.; or might amend his bill, and en-
force the defendant to discover his lady's admittance ; that
the plaintiff might proceed, and make proclamations toobiige
the defendant's lady to come in and be admitted, and had at
law a better remedy for his copyhold foie and arrears of

(«) This form wssadopted in Barker 11 Vss. 600. FUisr.Skattj 17 Ves.

V. Dade J 6 yes. aSl. H^gkm v. ftl6. Wiliiam v. Siemartf, 3 Mer.

Longden, 8 Ves. 2. and Todd v. Gee^ 602. Aitorney-General v. Brawn, 1

17 Yes. 273. : but the modern practice Swan. 294. Roberts v. Clayton^ 3 Anrt.

istodemwrfeti€tMy.lBakery.MeSi»hy 716.
10 Ves. 644. tf^dm v. ^SSAiqpMisoflt,

tye term. A. Mi6kadi», ITSd. ISl

qttit-i^ty than this coutt oottld give Mm ; fot he ridl^ht dto« ff MM .
tfaiii, 6r bring debt, for the arrears of quit-rent due to him^ -^' .
hft ttttttbty and distrain for the azrears of ^t«rei^ incttMd Straffoed.
ninee bid fttber's death. (1) ,

And with regard to the fine; be said^ either ib^ CounMM
bad been admitted^ or she had not. If sb6 had^ the t>lidllliff
might bfifig ail action of debt, or an tndkbiiaim OBswmpHi^
kt ibe fine, provided it wtm a reasonable fine» as ^e aup-^
posed it to be. If tbte d^ndant had not been admitted) the
plaintiff might cause proclamation to be made, and on a
Aefault after three proclamations, might seize the copyh<dd
aa forfeited. For which reason his Lordship allowed ttre
deAiurrer, it being only as to relief. (2)

Note: With respect to the copyhold fine, the plaintiff
tnight bring hfs action at law for it ; and need not, aa k
Bhocdd seem, in his declaration set forth the paiticnlitfs of
the land held of him by the defendants by copy €lt coort*
roB ; only, timt tbe defendant's Wifelield ceitidn hmds within
Ids YhanoT, &c. Bnt as to the qnit rents, it^ seems the
plaintiff mnst either in his action or avowry shew the par-
ticular lands; and in case the -defendants in their anferwer
set forth^ that they do not know where liiese lands lie, or
Irhat tliey aire, the plainliff i6 entitJed to a commissioh 16
set them out, and then the plaintiff being entitled to ihh
relief, qucerty whether the drfendant's demurrer aa to a//
fdief, begood?(8)

- -^ .... . — .. ■». ^. ^,... »^.. K^M^j^^^

(l) Vidt Hoider-^.ChamburgyfOtSt^ BrcK P.C. 199. '^Bn$^ "w. Baidw^j

356. lAtk.598. Dmke^\L9ed$y.P<meUy

W Reg. Lib. Bw 1733. fol. 19. 1 Vez. 171. Duke qf Leeds v. Cor-

(3) Vide Cockt yjFoley, 1 Vern. 369. poration of Nei» lladHory 4 Bro. C. C.

Muke of BtidgwUtet v. Edwards y 4 3^, fil8.

Ex parte HOPKINS. ^^^^^^^^ Case 37.

Hopkins, of JLofufefs,
fpreat real and person

Lord Chan-

takes hii niec6

ba*Mft iMtt^'SMteliiiM Mr iCkM, iM4i«h liftVi[Url«ft%«r M,M(Kr. 7f%e vitecntor continncf
to keep the niece in the hoaie where he and the testator liyed. The fislher «f the child peti-
tionsy that she ifaay he dielivered to Hiao. The child (bt'die age of 13) appears in court, and
M^r e&aiBii»d deuics «be is under aov fatce. The court-is iff OplnioiH thatfthe goardianship
of the child does hy -the law of nature belong to the father, but Uiat the right thereto is not to
be ^MWftttlhea Without ii bill ; tbitthe fMlMr «nMy take hlh diim ^nt a«t%y 'force, nor in her
gotng^o,^^ NtomiDg from^'coart ;^lid fhat -the fathternayttt dll reMotabta Cimes hare acCff^
to has child.

IM D$ Term. S. MichadU, 17Sf .

Bxpote bat bad a brother, the petitioner, and otiier rektions of big
HoPKun* ,,„Q^ ujg brother Hopkins, tiie petitioner, had tiuet
dangfatera, all which Mr. Hopkbu the testator received mto
bis honae in London, and by his will {inter alia) gave to his
aid three nieces, daughters of his brother Hopkins; to the
eldest, being now about the age of thirteen, lO/XXM., to the
second, about the age of ten, 80001*, and to the third, now
about the age of eight years, OOOOf., to be severally paid
them at thdr several ages of twenty-one or marriage, pro-
vided the marriage, if under twenty-one, should be with the
consent bf his executors; and in case of such marriage with-
out such omsent, then these legacies to go over respectively.
The executors of the will were Sir Richard Hopkins, Mr.
Budge, and (me Mr. Hopldns, cousin to the testator. Mr.
Hopkins, one of the executors, inhabited in the house in
London, where the testator died, and the testator's three
nieces continued there.

The brother of the testator exhibited a petition to the
Lord ChanceUor, setting forth, that those three girls being
his children, he consequentiy had a right to the guardian-
ship of them, and praying, that they might be delivered
over to him. The question was, whether the court could do
this in so summary a way as on a petition only, and without
abiU?
[ lAI ] It was objected, that matters of guardianship were of the

same nature with those of lunacy, wherein the Lord Chan-
cellor does, upon a petition only, dispose of and commit the
custody to such persons as he thinks proper; and in tiie like
suDunary way might determine the right of guardianship,
espedally in so plain a case as the present was ; indeed, in
doubtful cases, it is probable the court would order the party
claiming the guardianship to bring a bill ; that the applica-
tion now made was the more reasonable, as an affidavit
would be produced, proving that Mr. Hopkins, against whom
this petition was exhibited, had been often seen to kiss the
said testator's eldest niece, and to go into her chamber; and
that there was reason to suspect him of some intentions to
Inveigle her affections in order to a marriage.

On the other side Mr. Hopkins, against whom this com-
plaint was made, owned he had firequentiy saluted the testsr
tor's eldest niece, as being his relation, and whom he ap-
prehended to have been in some measure under his care,
bemg in the same house, and placed there by the testatpc :
but that, whenever he saluted the eldest, he also saluted tise

De Term. S. Michadis, 17S3. 15S

two youngest, who being of Buch tender years, it could not Kx parte

be suspected he had any ill intentions : that the will of the »<>'***'»•

testator had sufficiently guarded the young ladies against

any improvident matches, by having devised over their por*

tions, in case any of them should marry under twenty-one,

without the consent of the executors. He moreover swore,

that he had no undue design in saluting the testator's nieces,

or any of them. Also Sir Richard Hopkins and Mr. BudgCf

two of the executors, being then in court, declared, they

bad often beard the testator say, he never intended his nieces

should be educated by their fiither and mother, since they

would^ as his expression was, team nothing there tut low r i^ ]

Ufe.

Lord Chancellor : The fiither is entitled to the custody of
his own children during their infancy, not only as guardian
by nurture, but by nature ; and it cannot be conceived that,
because another thinks fit to give a legacy^ though never so
great, to my daughters, therefore I am by that means to be
deprived of a right which naturally belongs to me, that of
being their guardian. But notwithstanding this declaration,
yet I am of opinion, and do not see any precedent (a) to the
contrary, that I cannot in so sununary a way as on a petition,
and without a bill, deliver over the bodies of these infanta to
their fttjier, any more than I could, on a bare petition, order
a trustee to deliver over possession of the trust estate to the
cestui yue trusty who must in that case bring his bill, and so
must the petitioner do here. There are legal remedies for the
recovery of a ward, {viz.) a writ of [A] ravishment of ward,
hondne rq^legiando, and habeas corpus.

In the mean time the fiither having thus an undoubted
right to the guardianship of his own children, if he can any

(a) See nevertheless the case of Mr. Justice E^e and the Countess of Skitftes^
Aiipf, and the Precedents there cited, S vol. 118.

[A] Sed quarcy Whether this writ will lie, unless the defendant ift the action
takes away the ward ? and as to a homine replegiando and habeas corpus (which
last especially seems calculated only for the liberty of the subject;) if the parties
brought up thereon will acquaint the court, that they are under no force, the
court will let them go back to the places from whence they came ; or, if they ap-
pear to be under restraint, will set them at liberty, but not deliver them into the
custody of another, nor in a proceeding of that nature, determine private rights,
as the right of guardianship evidently is ; for then the parties would be concluded
fivm any appeal or writ of error thereon. Possibly, in an action de ejectione cus"
lodMr, the very right of guardianship might properly come in question ; and thus,
to the best of the editor's remembrance, it was determined in the case of The King
J.SmUk^ ia fi. R. Trin. 7 and 9 Geo. 2.

15A De Term. S. Michadis, 1758.

Ibi paft« way gain them, he is at liberty so to do, provided no breach of
Ho?ftiii4« the paace be nuide in such fui attempt : but the children must
not be taken away by him in returning from, any more tbaa
Qoming to, this court; and it will be a contempt in any per-
son offering so to do.

And his Lordship asked the eldest daughter then in court,
whether she was under any force, and where she wopk}
rather be? who replied, she was not under any force; and
that, though she had all imaginable duty for her father sod
mother, yet her uncle the testator having been so kind to her
by his will, she thought herself under an obligation to con^
tinve where he intended she should, and that she thouj^ it
to be his intention she should continue in the house where
he himself had placed her. Whereupon the Lord Chan-
ceUor dismissed the petitiop ; but directed IVIr. Hopkins^ who
had the young ladies in his custody, to permit their father
w4 motlier, at all seasonable times, to have access to and
aee their cUldren.

^•«^^®- COWPER t;. CLERK.

Lord Chan-
cellor Kino. Tn£ bill w^ to be relieved against an e^ce^siv^ fyx'S, m-
2Eq.C^Ab. posed by the defendant Sir jP'homas Clerk^ knt. upon J4f,
AsilDgiecopy- SpenccT Cowpcr^ (late Mr. Justice Cawper,) tpr 9 water-

ISte^'i? °^^ ^^ ^^°® ^^ ^^ ^^ ^^ Thonrn Clerk' 6 manior of
eqni^ for an Bfickendon, in Hertfordshiref by copy of court-rpU.
became this ia The case was thus : A poiller was ^eised in fee of ^ igill
ft iT"^^^ and a small parcel of land within the manor of Brickenfton»
to aroid mni- held *by copy of court-roll of the said manor, the stream of

^m/ wwftl ^^^ ^^ ^^ ^7 '^'^ ^^ ^® 1^^^ belonging to the late
eopyhoiden Mrs. CuUen*s seat and estate at MmrHngfard-Bury, in Hari"
h^li^^^ JMbhir€; and banks were erected by Ih^ said miller in the

TmV?nr thiT ^^^^ ^^ ^ ^^^ ^^- ^^^^ (then an infant) by the con-
Ig ffceii^, sent; oi her gi^di^. Hrur CuHm coming of age, sold ber
[ *146 ] sea4 and estate at Hertingford-Bmy to Speneer Cmoper,
esq. ; who threatening to pull down these banks which Were
in hia laAd, and which would in a great me^^re destrpy the
will; the miUer and Mr. Justice Cawper came to an agnee'-
mea^k, that the miller should convey the mill, and a ettudl
parcel of land thereunto adjoimi^, untp Hr. Juitifi^ Cwf^

in fee^ wlio wm to procure a liQenoe Ifom the lorA of the Cav*«»
manar to letw tl|e copyhold mili wd premiBsen^ that beftve rv^L|.
were let at a lew fenti to the miller for ninety -&ioe yearv^ at
8M. jMrr miMftH* Accordingly, the miller nirrendexed the
cepyhotd wSl and pvemiMses to the twe of Mr, Juatioe
GewffMtr aod hia heirs, who being thereunto admitted* did, hy
virtoc^ of a licmce from the defendant, Sur Thmui9 Ckrk^
demise the copyhold premiaaes to the miller for ninety-ittM
years, at 20/. per annum rent. But at present the improved
▼aloe of the said mill, land, house, and bam built thereon,
was about 60/. per (fnnum,

Tl^e fines to be paid on descent mi alienation of tl^so
copyholds were uncertain ; and the defendant Sir Thomas
CUrk set a fine on Mr. Justice CQwper*9 admittance to tM
copyhold in question, of 120/. which he rafuaed to pay> io^-
sitting that it was unreasonable^ and that it oi^ht to be ac-
cording to the value of 30/. per annum, it having been so let
with Sir Jiunnas Clerk* b privity (as was/ said, but not
proved,) when he gave a licence to let it for ninety-nine
years ; indeed after the ninety-nine years should be expired, [ 157 ]
the improved value might ttten be the measure of the fine.
It was further urged, that the value of the mill was increased
by the banks set up on Mr. Justice Cotoper^s land, which he

might pull dpwp at pkamre ; and theiofora the benefit
arising to the mill, in consequence of so precarious an ad-
vantage, ought not to enhance the fine.

On the other side it was said, that the banks having been
erected on Mr, Justice Cowper*^ land, by the consent of ij^p
infEuit's guardian : and, in consideration of the qiuet enjoys
meot of these banks, great sums of money having been ex*-
pended thereon, and the estate^ with theae bankp %h»u,
erected, having been purchased by Mr. Justico Qnoper, it
waa not in his power to pvdl them down ; that the ma^tsr
complained of (via.) the unreasonableness of the fine, waa
properly determinable at law, not in this court, Moreoverj
all the equitable circumstances of the bill> ia respect of the
fine set on Mr- Justice Cowper in his life^time, and Ukewiao
with regard to that demanded of the heir since hi4 ^^
seemed fuUy answered by the proo^*
. The Lord Chancellor waa of qpinionb that a bill cpuld 0<4
be brought by a single copyholder to be relieved qgmipt a»
excessive fine } b regard the fine insiated to be f»L«es8iva
ottglt io' be tried by a'jury, before wkon all tlit dapMU

IM D% Term. 8. MickiutUs, 1733.

CowPEA tions in the present case, touching the unreaBonaUeDeii
"*'' thereof would be proper evidence ; though his Lordship ad-

Clebk. j^^^^ that a bill might lie in order to settle a general fine
to be paid by all the copyhold tenants of a manor, to prevent
a multiplicity (1) of suits ; and that with this diversity were

_^ _ ^ the cases cited for the plaintiff, from the first Chancery Be*

dietonir.^k- ports Svo. (a) to be understood. Whereupon the plaintiff's

soDfl And 90a « rf^

Fopham v. bill was dismissed with costs. (2)

LviCMter.

(1) Vide Dlrneyv.Aofterff on, BuDb. Atk. 282. Bauverie v. Prenike^ 1
41. Baker v. Rogers^ Sel. Ca. in Cha. Bro. C. C. 200. (x)
74. Ma^or of Yerk v. Pilkington, 1 (2) Reg. Lib. A. 1732. fol. 117.

(a) See 1 Cha.

(«) Lord Tenham v. Herbert^ 2 Middlesex JVaterworki^ 1 J. and W.

Atk. 483. fVake v. Cony en j 2 Cox 300. Corporation of Maiden v. Coaiet^

360. S. C. 1 Eden 331. DiUy v. Doig^ 4 Mad. 447. ', and see Holder v. Cham-

2 Ve«. Jan. 486. Hanson v. Gardiner, burvy post. 267. n. I.
7 Vcs. 310. IVeale and the West

[158]

Case 39. ^^^^ ^' CRADDOCK, ET AL\

Lord Chan- ^ ^^ Appeal from a Decree at the BoUs^

cellor King.

Rye penons ^°* *^*®® '^^^^ *^^® • Great part of the lands in West Thorock^
purchMed in Essex ^ having been overflowed by the river Thames near
lerd from the Dogenham, and the land-owners not thinking it worth their
commisiionen while to pay thc assessments made on them by the com-

ofeewen, and . . * I , , , , ^

the purchase missioners of sewers ; the conunissioners decreed the lands to
p^t^^uu" ^ forfeited, and conveyed them to three trustees in trust to
lnfce;butthejr sell, and raise money for the draining of these overflowed
ratcably to the l^nds. The defendant Craddock*% father, the plaintiff Lake,
SSkfc^ and three others, (five in all) havuig entered into an under-
with an inteat taking to drain the level, or overflowed lands of We^
lereT^after ThoTockj the trustees for the sale, by the consent and direc-
of^theiTdri^- ^^^^ ^' ^^ commissioners of sewers, did, by deed indented
they were held ^^d inrolled, dated the 8th of February 1095, in considera-
te wiJr^^n **®^ ^' ^^^'- P*^^ to **^« commissioners by the five pur-

•quUy and though one of these fire undertakort deiertcd (he paitaenUp ibr tWrtv jm^ T^
io waa lot la afteafKda, im4 oa ftet teraa. ^ ^

' De Term. 8. MichaelU, 1792. 158

chasers, convejr this kvel to the defendant Craddock*^ father, Laks
the plaintiff Z*ake, the three others and their heirs ; upon ^ ^*
which several sums of money were expended m carrymg on
the undertaking; and in 1699| the defendant Craddock's
father pbid his last contribution, which^ with what he had /

advanced before, came in all to 1025/. Afterwards, it seem-
ing to be an enterprize, which would prore very expensive,
and there being some uncertainty as to the success of it, the
defendant Craddock'u father wholly deserted it, and never *

more concerned himself therewith.

Thp four other undertakers were advised, that some neigh*
bouriibg lands would be of aervlce to their design : upon
which, in jiprii, 1708, they purchased the manor of Parret- [ 159 ]
^Aalls in XTesi TAwock, of the Lady Smith, for 2550/.; and
in February following, purchased the moiety of the rectory
and tithes of fFesi TAorock, for 1400/. of Sir Charles
Tyrrel ; which two purchases were thought useful in the
undertaking, and were made in the names of the four under-
takers, omitting Craddock ; nor did it appear that he was
ever consulted therein, or desired to contribute to the pur-
chase. Crtuldock the father died, leaving the defendant
Craddock the son his heir and executor. The plaintiff. Sir
Bibye Lake, one of the original partners, brought thb bill
against the rest of the partners, or their representatives, for
an account and division of the partnership estate. And on
the first coming on of the cause at the Rolls^ his Honor re-
ferred it to the Master to state a case between the parties,
for the judgment of the court. And the Master having made
his report^ the cause was thereupon heard, when the prin-
cipal (or rather the only) question was, whether these five
purchasers, having made this purchase jointly, so as to
become in law jointenants, the same should survive in
equity ?

The Master of the Rolls, on debate, (a) decreed, that the (a) Tiia. I72r«
survivorship should not take place; for that the payment (1)
of money created a trust for the parties advancing the '
same ; and an undertaking upon the hazard of profit or loss

■ ■ . . - ■■■■■■..,. ^ , ■

(1 ) Vide Rigden v. VaUier, 3 Atk. Pawlet, 1 Atk. 467. and 3 Afk. 55. S. C.
731. and 2 Vez. 258. S. C. Parindge v. Hall v. Digbtfi 4 Bro- P. C. 224. (x)

{x) Lyiier w, Poll&Hd^ 1 Ves. Jun. n. (5)» AveUng v. Kn^e^ 10 Yes.
411. ' Jaekum v* Jachim^ 9 Yes. 597* 441.

VOL. III. K

l&d Be Term. 8. mckaeUs, 173£.

Lake was In the nature of merdumdislag, when ihe jun aceru-
^ ^^ ceruK (b) is never allowed ; that, supposing one of the partnert

(b) I Inst 182* ^"^ ^^ ^"* ^* whole money, aind had happened to die first,

1 Vera. 217. according to the contrary construction, he must have lost all,

2 U7.188,228. ^hich would have been most unjust. Wherefore it was decreed,

that these five purchasers were tenants in common, not only
[ 160 ] g^iQ i\^^ ig^^i lands, which weire first purchased, but also with
respect to the lands bought aftierwards by the four uhder-
* takers, of the Lady Smiih, and Sir Charles Ti^rreU ; but that

the defendant Craddock ought not to have the benefit of this
tenancy in common, unless he would pay so much money as
would make up what had been already advanced by his
father, equal to what had been contributed by each of the
other partners, together with interest for the same, from the
respective times thait Craddoek the father ought to have
made those payments; and on the defendant Craddock'n
paying the same, then all the said lands to be divided into
five parts, the defendant Craddock to have one fifth ; but, on
default of payment, the defendant Craddock to be exduded,
and the lands to be divided and distributed into four parts
among the four other partners.

From this decree the defendant Craddock appealed to the
Lord Chancellor, insisting, that he ought either to receive
back the 1025/. which it was admitted his father expended
in this undertaking, or to be allowed to come in for a share
of the level only, and not to be bound to contribute tovrards
the two purchases made by the four other imdertakers, of the
Lady Smith and Sir Charles Tyrrell; that the four other
undertakers had chosen to make these two purchases in
their own names only, by which they seemed to have ex-
cluded Craddock from all concern therein, and of which, had
it proved never so beneficial, he would have had no means of
forcing them to admit him to a share ; and therefore, now it
had turned out a losing bargain, there could be no reason to
compel him to bear a prc^rtion of the loss. Besides, there
was nothing in the articles empowering the partners, or the
major part of them, to buy landsj and by the same reason
- thai they would oblige Craddock to pay his share towards
[ 161 ] these purchases, they might, if they had fancied buying half
the country, have compelled him to contribute to that also;
that it was difficult to conceive how the uplands thus pur-
chased, mudi less the tithes, could be of any use in the un-
dertaking; though as to the charge of diaining thb level.

Da Tern. S. Mtchaelis, 1732. 161

CRADDOClt.

exclusive of the two purcbaseB, the defendant Craddock was Laks
willing to advance hin proportion. ^_ ^i

It was moreover pretended^ that the decree wlus unreason-
ably on. account of its having directed^ that the defendant
Cradd0ek^ in order .to be admitted ' to one«-fifth, should pay
not Only his proportion of these two purchases^but also of
the interest .of the purchase money^ from the time that hU
&ther ought to have made these payments ; whereas the di-^
rection ought to have been^ that an account should be taken
of the profits of these two {turchaaes^ whiph profits mig|bt
have an;M>^n:t^d to as mt^(;h as the interept, ,of : if not to qidte
80 much^ yet that the defendant Craddock ought to pay no
more towards such intereist, timn the deficiency of the quati-
turn of the profits would come 'to. ...

To which it was answered by Mr. Solicitor Talboi; that
as the defendant Craddock' s father and himself had for so
long a time (near thirty years) relinquished and abandoned
the partnership ; and in regard the defendant Craddock had
no manner of right thereto, but through the indulgence of a
court of equity, (it being by law a jointenancy, and as such
bebnging to the survivors ;) it was a favourable decree to
let him in upon any terms, and surely the terms now offered
him must appear reasonable, (viz.) Uiat he should, upon his
contributing to all the expenses that had been contracted and
incurred by reason of any purchases, or otherwise in the
prosecution of the undertaking, be admitted to one-fifth of
the partnership ; that had the defendant Craddock brought [ l^^^ }
his bill for the benefit of such undertaking, he could not
have hoped to succeed on any other conditions 3 that it was
still stronger against him, in that he now seemed to decline
meddling with the undertaking; so that here was rather
great favour shewn him, than any hardship imposed ; that
he was not absolutely, and at all events, bound by this de-
cree to pay his proportion towards the new purchases, but
had it in his election, whether he would do it or no ; that as
to the interest which was required of him, previous to his
being admitted into the partnership, it was reasonable he
should pay it for his default in not having contributed his
share of the principal before, which, if he had done, he would
not have been charged with the interest ; and this was some
disadvantage to the other four partners, who had been de-
prived of their arrear of interest for near thirty-five years j
that in truth the design of the defendant Craddock appeared

163 De Term. S. Micliaelis, 1732.

Lake to be to delay matters, and to defer the bringing in of bis
^* money and interest, till such time as this long accomit of the

profits should be taken, which would require many years ;
and that, if the defendant's share of the profits of these two
purchases should exceed his proportion of interest, the sur-
plus, on the making up of the accounts, must be paid him.
For which reasons the decree of the Master of the Rolls
was [B] affirmed.

[B] Nov. 1733, under the name of Lake \. Gibson ei afj(if) and the 10/.
'deposited with the Register, ordered to be divided between the plaintiflf and the
other defendants^ who were foar of the proprietors of the marsh lands in the
.pleadings mentioned*

O) 1 Eq. Ca. Ab. 390. PK 3.

De:Term. 8. HU. 1732. 168

TERM. S. HILARIL 1733.

SIR SAMUEL MARWOOD; BART., v. CHOLMLEY Case 40,'

TURNER, ESa

Sir Hbnrv Marwood^ Baronet, seised in tail male^ witk Lord Chan-
lemainder to himself ki fee, of a considerable real estate in cellor King.
Yorkshire, and also seised of an estate for three lives of the ^^'9^,^^'

40sr* pl« lo*

manor of Stonton, in Yorkshire, held of the Archbishop of 775. pi. 22^,23.
York, and granted by the ArchbislK^ to Sir Henry bmA his ^J"JemiSn^
heirs, for three lives, made his wiU dated the 7th of June, der to himself
1711 9 whereby taking notice, that lus nephew the plaintiff hitUndtto
(now Sir Samuel Marwood) would be entitled to the baronet* J« s.,«id then

"^ suffers a reco-

ship, in case he survived his father, and the testator hi» uncle, rery to the use

the testator did by his said will devise a considerable part of ^^^^1^

his freehold estate to his nephew, 4;he plaintiff, for his life, without issue

remainder to trustees to support contingent remainders, with anrocatimi

remainder to the first, &c. son of the plaintiff in tail male •**!»« wiU.

successively, remainder over : and devised his said leasehold

estate to two trustees, and their heirs, during the three livesf [ 164 }.

expressing an ardent desire, that the trustees would> take

care, from* time to time, to renew the lease, and use-tiieb

utmost endeavours to preserve the estate to the heb» male of

the feunily, as long as the honour of baronetsh^> should con**

tinue therein, and made the defendant, CholmUy Turner,

executor. Sir Henry had no issue male, b«t the plaintiff

was his nephew, (viz.) his next brother's eldest son ; and

the heir at law of Sir Henry, was his* grand-daughter Jane,

being the daughter of his. only deceased son, and married to

the defendant, Cholmley Turner.

After the making ctf the will. Sir Henry Marwood did by
lease and release convey the estate of which he was seised in
tail male, &c. to the trustees and their heirs, to the use of
them and their heirs, in order to make them tenants to the

104 De Term. S. HU. I7SS.

Marwood precipe for soffisring a common recoyery; irliich common
^ ^* ' recovery is, in the beginning of the deed, sud to be for the
docking and barring of all estates tdl and remainders, and
for vesting the fee-simple of the premises in Sir Henry and
his heirs. And the recovery is by this deed declared to be,
ta the use of him and his heirs, after which a recovery wu
accordingly suffered, in which Sir Henry was vouched. The
testator also, after the making of the will, surrendered his
lease for lives, and took a new lease of the Archbishop of
York, to him and his heira fbr three lives, and put in lus
grandson, Cholmley Turner, as one of the lives j the deeds
abd r^eo^ery t^ra e9:ecuted and suffiered in 1718 ; 'SirHemy
Manoood died the 28th of OetobeTy 1725.

Upon the back of the will these words were written (and
as supi^ised). by. the testator's own hand; tkbis^w^mUt
aftenranU these words weve written; Imi not hmt lomr
tended to be*

[ 105 ] In the sjmitQal court, by reason of these words, but noi
nouTso inUndedto be^ tibe will was set aside,snd adnuqistia-
tion ' granted; geoetalLy to Henry Pierce, a daughter's son of
Sit ' Henry JUiarwqod; though this (it was aaid) was .done
without mucLoppoaitbn from the defendant Cholmley Tw^
n^y the txeeutor tiiiereof ; but whose interest it was to coo-
test the wiH, as to the real estate.

With respect to the freehold (estate; the conunoo recovery,
and the deed by which the premises were conveyed to.tnis-
tees and their heirs, declaring the use of the recovery to Sir
Hefkry Jfarwood, saad his heirs; these being all suhsftquent
to the will, and inconsistent therewith, as declanng the pre«
niises' should.go to his heir at law^ and not to his devisee ;^ it
seefned to be not much opposed, but that the sanae were a
revocation. Besides a conunon recovery, as it is a solemn
conversance upon record, and stronger .than a fboffinent, must
needs be a revocation; the recovery being sufEered.by the
tenant in tail, plainly gains an absolute fee' derived osi of
that estate«'tail, and which fee was never deviled ; conse-
quently it must be even stronger than the case, where a man
having lands, devises them, and aftei'wardB makeaafeoff--
ment of them, though to the use of himself and his . heirs,
and though this use be the old' use> and the old estate, yet
according to the several cases in 1 BoU's Abr. 614,
title Devisee revoked, this is a revocation; and the case in
3 Levinx 106, Iheter v. Disier, was dted as in the very

De Term. S. HU. ItSi. 165

point j of which opinion was also tlie Lord Chanc0l<f Maawood
lor.(l) ••

With regard to the other point ; it being written on the r i^^
back of the will, this is my toillj btU not now so intended to Aieategrant*
be; and the spiritual court having construed this to be a ^^einTf^
revocation of the wiU, and thereupon granted f^ministrntion^ three Ures^is
as if Sir jETemy Jtfani^oocf had died intestate : the Lord Chan- Ld though i^
cxSioff primdfaciey inclined to think that this estate put autre £^^V**f ^^
vie was, since the statute of frauds, ^to be taken as personal made ikbie to
estate : from whence it would follow, that the will being set ^L iT^y M^b
aside in Doctors* Commons^ the whoile disposition of the. per«» debt» m bind
sonal estate thereby was void; and conse^guently that the will, inhere the spi-
as to this leasehold estate, fell to the ground, especially as a j^^'^^^^'^^
lease pur autre vie is now made liable to pay debts. dispoting rin-

To which it was answered (and the court at length allow^ rachMUte as
of the answer) that the lease being granted to Sir Henry and n^oked; th]»
his heirs for three lives, this was a freehold descendible, and not affect the
a.real estate; and though by the statute of frauds it.ismadqi J^twrne*"*
liable to debts, yet it is only to debts by specialty wherein
the heir is bound, and consequently to such debts only a8;i|
fee-simple estate is made, liable to. (2) Then this beipg a
real estate, what would be a revocation of a will as to a per-
sonal estate is no revocation thereof in rq^ard to this y and
such ai| indorsement only, especially since it did not appeal^

(1) Parsons v. Freeman^ 3 Atk. P. C. 486. S. C. Roe v. Griffithj 4
741. (jt) and 1 Wils. 90H. S. C. Darley Burr. 1052. AmaU v. Arnold^ 1 Bro.
V. Darleyj 3 Wils* 6. and 7 Bro. P. C. C. C. 401. («)

177* Sparrow v. Hardcastle^ 3 Atk. (3) Vide Duke tf Devon v. Atkmsy
803.(y) £t vide Martin v. Strachan^ ante, 2 vol. 381.
1 Wils. 2. 66. 2 Stra. 1179. and 4 Bro. .

(«) And see Lord Loughboroagh's v. Darley^ 1 Dick. 307rS. C. Amb. 655.

statement of this case in Brydges v. .Mnoilys y» Akoekj 5 Ves. 648. 7 Yes.

Duchess of Chandosj 2 Yes. Jan. 431* 658. Harmood v. Oglander^ 6 Yes.

iy) S. C. Amb. 1U. 1 Dick. 256. 108. 8 Yes. 106. Attomey^General

(«) Doe V. Delnoty 2 N. R^ 401. v. Vigor^ 8 Yes. 281. Reid v. Shet"

Doe V. Llandsffj ib. 503. Shove v» gpldy 10 Yes. 370. Charman v. Char-

Pincke^ 5 T. R. 124, 310. Brydges many 14 Yes. 580. Vomer y.Jeffery^

^•Ducheis of Chandosy ub. sup. Tern- 16 Yes. 519. 2 Swan. 268. 3 B. &

pie V. Duchess ofChandoSj 3 Yes. 685. A. 462. Elton v. Harrifony 2 Swan.

fViUUsms V. Owens,^ Yes. Jan. 595. 276 n. Jacifcton v. Hur/bc^, 2 Eden. 203.>

Cave V. Hoffordy 2.Ye8. Jan. 604, n. Bennett v. The Eari of TankerviUey

8. C. 3 Yes. 650. sub. nom. GoodtUle 1 9 Yes. 170. Rowling v^ Burgis, 2 Y.

V. Otwayy 1 Bos. k, Pal. 576, and 7 hB. 382. Ward v. Moore^ 4 Mad.

T. R« 399. DingweU v. Askew, 1 368. As to the effect of a subseqaent

Cox 427. Hawes v. WyaUj 2 Cox mortgage, aee Rider ▼• Wager^ ante^ 2

263. S. C. 3 Bro. C. C. 156. DarUy vol. 334.

16« . DeTerm. S. Ha. \73i.

Marwood whose handwritinf; these latter words were, [but not now ^
^ ^' intended to be] could be no revocation.
One seised of '^^^ ^^^ remaining question of difficulty wan, whether Sir
A lease for Henry MarttoocTs surrendering the old lease, and taking K
itlui/sfter^ new One to him and his heirs for three lives, subsequent to
wsrds renews; the will, was a nevocatbn of the will ?
arerocation * And it Was insisted for the plaitttiff, that this was no re-
of the wilt vocation : for that it would Weigh with the court, what ardent
t ^^' i desires the testator had expressed in his will, that his trus-
tees, to whom this lease was devised, should use their utmost
endeavours to continue the lease in the male line, as long as
there were any to inherit the honour ; that as to the surrender
of the cid lease, this being only to take a better and more
beneficial estate, was all intended for the advantage of the
devisee, to give him a larger, a more extensive interest than
he had before, and to increase the bounty that water before
designed him; now to make such an intended act of kind-
ness a destruction of the will wotild be to invert, in the
highest degree, the meaning of the testator ; that the renewal
of a lease was only a grafting upon the old. stock, which must
be of the same nature with that stock, a continuation of the
same estate, with some little addition to it ; that this wai^
demonstrated by the common case, where a trustee of a tease
for lives, when all the lives but one are expired, renews for
the old life and two new ones, and the old life dies ; here,
though the trustee renews the lease out of his own pocket,
and though the lease had been quite at an end, if he had not
renewed ; yet this renewed lease shall be taken to be subject
to the same trusts as the old lease was, and a continuation of
the same estate ; that a considerable part of the revenues of
the kingdom consists of leases either from the church, or col-
leges, or lords of manors, especially in the West : and that
it is very usual to make provisions for younger children out
of these leases, which commonly require a renewal every seven
years, or upon the dropping of a life ; and if one so seised or
possessed, having made his wUl, and thereby provided for a
younger child or children, should soon afterwards renew the
[ 168 ] lease, but forget to republish his will (which might often hap-
pen) if the child should be thereby left unprovided for, smch
a construction might create the greatest inconveniences;
that no judgment at law, nor one decree in equity, had been
cited, whereby it had been determined, that the bare renewal
of a lease was a revocation, of a will.

Determ. S: Mil I7S«. 168

In 9 Fern. 209. Al/ord v. Al/ard, Hil. 1690, one devised Maawood
ti lease to his daughter, and afterwards renewed the lease by — ^'
changing the life, subsequent to which he annexed a codicil
to his will, though without taking notice of the lease in such
codicil. In this case, according to the book, it was left a
question, whether the renewal of the lease was a revocation,
or not, of the wiU, and the point is not there determined ;
but upon looking further into the case, and searching th6
Register's book, it appears to have been ruled by the' court,'
that the codicil being annexed to the will, was a republica-
tion of the win, if the renewal of the lease had been a re- ^
vocation.

Also in the case of Adean v. Templar y heard at the Rolls; ^•^•x^fj Jj^
the 15th of June^ 1722. A man had five sons, and by his cawofAieaae
will gave a college lease to his second son, and having made ^^ ^^**^
a suitable provision by his will for all his other sons, be-
queathed the surplus of his estate among all his five children,
after which the testator renewed the college lease, and the
eldest son brought his bill, as one of the residuary legatees,
for his share of this college lease, supposing the devise of it
to the second son to be revoked by the subsequjent renewing
thereof; and this being at that time solemnly debated, the
Master of the Rolls held it a case of vefy great consequence,
and that it might prove very inconvenient and an hardship,
to construe that to be a revocation of the bequest, which in [ ^^^ ]
all probability- was intended for the benefit of the legatee ;
his Honour therefore ordered the Master to state the matter
specially, and reserved costs ; whereupon the eldest son was
well advised, and proceeded no further in this cause, but
permitted the second son [A] to enjoy the lease devised to
him, notwithstanding the pretended revocation by the re-
newal ; so that the authorities were rather for the plaintiff
than against him.

But it was further urged, that if this renewal of the lease ^
was a revocation in law, yet it would not be so in equity, but
the^renewed lease would be subject to a trust for the devisee;
that accordingly, if a man devises lands in fee to AL, and af-

|]A3 This appears to have been the case of a lease for years, which, noiwith«
staDding the doubt the court of B. A. seems to have beien in, in the case oi Bonier
V. Cooky Salk. 237. whether it would pass by a will, made before the pnrchasing
thereof, has been since clearly held to pass by such will. , See the opinion of the
Lord Maccletfieldj in the case of IVind v. Jekyll^i Albane^ vol. 1. 675. where
his Lordship also held, that no freehold estate can pass by such will, and why.

169 Be Term. S. Htl. 1788.

MiAiroos terwatdt makes a mortnire tliereof in fee : tfak mortnge in

^' fee, though a revocation of the . will in law, yet ii none in

URKEE. ^q^^|.y^ \^^^ ^g right of redemption shall still pass by the

will : for that the conveyance by way of mortgage was only
for a particular end, C^*J ^ borrow money upon the estate,
and to make a pledge for that purpose. So in the present
case, the surrender of the old lease is in order only to procure
|i new one, though such new lease [B] is taken to the lessee
[ 170 3 ^u^d 1^ hem for the three lives. So if one that haa articled
ia)2VenU»79. to buy lands (a) should afterwards devise these lands, and
GreenhiU. ' t^^^ ^^ person that has contracted to sell the lands to him
should convey the same pursuant to the articles ; this is no
revocation in equity, but the equitable right, which the tes-
tator has to the Is^id articled to be purchased, shall pass by
the will, and the testator's heir at law be a trustee for the
devisee.

By all whiph cases it was sud sufficientiy to appear, that
a will may be revoked at law, and yet be subsisting in equity;
BO that tidting it ip the present case, that the renewal of the

lease was a revocation at law/ the same would not however

^ . I • ' . . . t

[BJ A. and B. tcfaabHrita comttMm ^f Umds In fee. A, by will dated 35tb of
January^ 1710, devised hia moiety iu.f(Q^'; afterwards .^. andJB. aiade ^paftitkHi
by deed, dated Iftth of Ma^y 1722, and fine, declaring the use, as to one moiety
in severalty, to Af in fee ; and as to the other moiety in severalty to B. in fee ; on
its being sent by the* hot& ChattQellor Kthg to the Judges of the King's Bendi to
give their opinion, whether -tiiis was a revocation of Uie will) it appears by the
Register's book, that the court, (onr.) Lord Ra^mondy Chief Jujs^ce; Page$
Probyny and Lee^ Justices ; certified,

^* That they were all of opinion, that the will of the said A. was not revoked by
^^ the deed and the firie lifvied in pursuance thereof; and that the said AJs share
*^ of the landa cointained in the d^d^ and the fine levied tfaereoa^ did pass by the
<^ will of the said Aa** with which the Lord Chaneellor concurred, and ordered
that the several trusts in the said will of A. should be established* Luther v.
Kidbyy April 9, 17^. (ir)(l) But if A. devises land and levies a fine, and the
caption and deed of OfeS are before the win, bat the writ of covenant is retnraable
afi^r the will, this seems a revocation ; because a fine operatfM as such from the
return of the writ of covenant, and not from the caption. See Salk* 341* LU^d
V. The Lord Say and Sele. And yet this is a hard case, since by the captloa
the party conusor does all his part, and the rest is only the act of the clerk or his
attorney, without any particular instmctions from the party.

(1) And so, Swijt v. Roberts , 3 Burr. 1490.

(x) See the comments on Luther v. 6 Yes. 219., and InMaundreltr.Maun*
Kidbyj in Goodtitte v. Otway, 1 Bos. drelly 10 Ves. %56y 964.
h Put. 585., in Harmood v. Oglandery

'« ' •%

Ik Term. S. UH. 1751

xipeimteluiBiieh in equity; and thallldswiuifrtillt^ Uamwood

in tbat the testfttor by hb wiU had directed^ that the trus- ^
tees' renewal of the lease should be a means made use of to
eonUnne and preaerre the estate in thefiunily.

Bat it 'Was insisted on the other side^ and so held and de»
creed by the Lo^ Chancellor, that this renewal of the lease
for three lives was a revocation of the will as to this parti* [ 171 ]
cular ; for by the surrender of the old lease, the testator had
put all out of him, had divested liimself of the whole interest ;
so that, there being nothing left for the devise to work upon,
the will must fall, and the new purchase being of a freehold
descendible, could not pass by a will made before such pur-
chase. But his Lordship wondered, tha^ this case, which
must have often happened, had not been before deter«

mmea,)[l)
There was left one other point in the case, which was tiiis f A. covenaau

SirJBmry Marfvo&d, in 1663) upon his marriage with Do- ^Ige uTuv
fotfjr the daughter of ^Uan BeUmgkam, was to hav€ 8800/, ^* ^JJ^
portion with hi^ wife, and to lay out that sum in the purchase of land, and to
of laiid, to be settled on Sir Henry and his wife, and the ^^'^^^
hefarsmale of his body by her, remainder in tail male to ttie nudacler toB^
pfauntiSTa fitther. It appelMd, that Sir Henry did lay out the manor of
the 3000/. in the purchase of an estate called j/icomb/m 3Qoo?\Jd**
Yorkshire, and afterwards- suffered a common recovery never leuicis
thereof, havuig never made a settlement of it on the phuntiff 'ir ^^j^TJ^^
fftther in tail male, eitpeetaot on his own death without issue ^en-^of^ «•

» t ^ .* ■' « .• thecorcnani

male by Doro%. was k lien o»r

And the court held without difficulty, that when the -A- S^JS^^^
comb estate was parehased, and dechured to be the land, mxieredefit
which was to be appropriated and settled for the 9000/. por- lien^aiidhin
tion I then, and from - Aat time, there was a lien upon the ®* ®' frtj^
hnd, and the plaintiflTs father became entitled m equity to a covenant, ^ad
remainder in tail male therein, expectant on the death of Sir ^J^^JT'
Henry without issue male by hb lady; and that, when Sir
Henry aftetwards suffeted a recovery of the premises, such

ri) Abney v. MiUer^ % AtlLl il97. ; v. Lydtard^ 3 Atk. 109. Rudgtone v.

and 8o In chatteV leases if gpecifically Anderson^ 3 Vez. 418. Hone v. Med'

beqocsthed, Abney v. Miller^ ub. sap. crafty 1 Bro.C.C.961. Coppin v. Fer»

Carte v. Carte^ 3 A^k. 174. SiirUng nyhaugh^ 8 Bro. C. C. 891. (x)

9SSB

(x) Jamet v. Dean, 11 Ves. 383, Ion, 10 Ves. 197* Cokgraver.Mtmbyj
388. and 15 Ves 330. Slaiier v. No- 6 Mad. 73.

m De Term. S. HiinSi.

Mahwood )r^covery barred the trusts : and that it had latdy been ao^

''' lemnly detennined by this court, that a recovery would bar

T'lrT 1 * ^^^' ^y^ Whereupon the plaintiflF's biU was dismissed in

^ toio, but mthout costs, the Lord Chancellor thinking it a

very hard case.

Of) Phil^s V. Bfydgesy 3 Yes. 128.

Case 41. WILSON v. SPENCER.

Lord Chan- John Spkncbr, by his will dated the SIst of March, 1729^
cellor King, devised, that all his just debts and pecuniary legacies should
2 Eq. Ca. Ab. be paid by his executor out of his personal estate, as far ad
One IfhiM ^® same would extend, and in default of that fund, by and
^* ^w** ®"* ®^ ^^ **^ estate ; for which purpose he willed, that lus
debts and le- executor, within twelve monifts after his decease, should levy

^d^ * hb^ ^ ^^^ '^^ ^^^ ^^ ^^^ personal estate, not otherwise specifically
executor out devised, and in default of siich fund and in aid thereof, by and
eltateffftbat ^^^ ^^ bb real estate, or by mortgage or sale of such part
sbaii |>« >ttffi- thereof, as might be sufficient, the full and just sum of 1000/.
not, then that which Said sum of 1000/. he did thereby give and bequeath
wUhin twelv ^ ^® youugcr SOU, Edward Spencer, to be paid him by his
months after executor immediately after the same should be raised aa
sbaU^u'or aforesaid. And the testator did thereby charge all his real
mortga^ so estate with the ssdd sum of 1000/. for the purpose aforesaid,
na\ esute, as and to answer the same in all events, in case the said testa-
ctent for that ^^'^ personal estate should prove deficient.

purpose, and (int' aV] gires a legacy of 1000/. to J. S. who dies within a year, and the personal
estate is not sufficient ; this is a vested legacy, and shall be paid to the executor of the legatee,
though charged upon land ; for the words, within twelve months, denote the ultimate time, but
the executory may pay the legacy%ooner.

The personal estate was not sufficient to raise this 1000/. }
and Edward Spencer, the legatee, died within the year, fviz.J
eight months after the death of the testator. Whereupon the
executor of Edward Spencer, the legatee, bringing a bill for
[ ^7| ] the 1000/. the question was, whether the personal estate
being deficient, and Edward Spencer, the l^atee, dying
within the year, this 1000/. legacy should not be deemed a
lapsed legacy, wd sink in the land, for the benefit of the
heir at law ?

De Tertfi. S. HU. 1732. 173

Against the payment of the legacy it was urged^ to have Wilsoh
been the constant rule of equity, ever since the case of Paulei ^ ^'
V. Paulei (o), that if a legatee of a legacy charged upon land ^ % e^ i y '
dies before the legacy becomes payable, the land or real 204,321.
estate shall not be loaded for the benefit of an executor or
administrator, but the legacy shall sink in the land in favour
of the heir; that in the principal case the legacy was no
charge upon the land, until the end of twelve months; no bill
could be brought for the raising of it before that time ; and
to call it a vested legacy would be beg^ug the question, since
a legacy given out of a real estate is not vested, until it be-
comes payable, and in case of the legatee's death before that
time, shaU never be paid, but^sink in the land ; and as to what
might be objected, that this legacy was not made payable at
a certain determinate future day, (viz.) at the end of twelve
months, but only tpithin twelve months; so that the executor
was at liberty to pay it as soon as he pleased after the tes-
tator's death, but must not defer payment longer than that
time : to this it might be answered, that the law, in this case,
had appointed a time for payment, (ms.J the end of .the
twelve months after the testator's death ; and that the legacy
could not be said to be due, till the ultimate part of that
time, was come ; like the case, where one seised in fee leases
for years, rendering rent at Lady day and dUchaelmasji if
the lessor dies on MkhaelmaS'dmfyjet^ the rent not being [ 174 ]
due until the end of that day, (viz.J not before [C] twelve
o'clock at night, on the lessor's dying before that time,, it
shall go to the heir, and not to the executor ; that the words
wU/dn twelve months are the same as, at or before the end of
twelve months, and surely the 1000/L could not be said to be
due or payable, until the end of the twelve months ; so t^t
the legatee dying before, the land, is discharged. And for
this purpose were cited the cases, in 2 Pern. 416, of Yates, v.
FetHplace. 2 Fern. 617, Carter v. Bktsoy Duke of Chamhs,
Y. 21albot,{a) and that of ^hiddon (1) v. Oxenham^ 7th of (a) Vol.2.610.
Jiilsf, 1731, at the Rolls.

The Lord Chancellor admitted, that in all the former cases,
wherein a portion was secured out of . land payable to- a

[C] If the lessor lives till sun-set, it becomes due to him, according to the
Be of Southern v. Bellasts, vol. 1. 178, 179, in the note.

(1) 2 Eq. Ca. Ab. 546. pi. 34.

m De TewL S. HU. \7Si.

Witsoif daughter at eighteen^ or marriage, and the daughter died
*• before that age, or marriage ; it was highly reaacmabk the
land Bhould be eased of the charge, when the oqly motive
and inducement for making the same was at an end and de-
termined, by the daughter's dying under eighteen or unnar-*
ried; and consequently before she. had any ooeaaion for a
portion ; but that in the present case the legacies were all
vested by the first words of the will, whereby the testator
devised, that all his kf;acies aboahl be paid by his execnftOTs
out of the personal estate, if.aufficient, or else - out of lus
land; and that the subsequent direction, that they. should be
paid within twelve 'm<)aths after the testator's decease, was
saying no more than a couvt x>f equity would say without
these words, mere siB;idusage,.aad therefore could mak^ no
[ 175 ] alteration. His Lordship took notice of a case stronger to
this purpose, than' any ^ that -had been , cited, .wMch is in
W ^^^ 2 Fern. 424; Jackim r^ Farrant,{a) where a man by his
will devised SOOI. povtion to his dMighter, to be paid by his
executor, at her age of twentjMme, out of ,his personal estate^
and the rents and prefits of h|s lands ; and if not raised b](
that. time, that his executor should stand seised of the.land^
and take the rents thereof, untU.the 5002. should be rtdsed
and paid^ The daughter 'married at eighteen, and died before
twenty-one. WhereiqMm it w«s objected, thist the portina
> should sink, bectfusec tbe/daoghter died before twenty'fbnei

Of that, if it was to be' raised^ still it should' be 6t\fif thfe
rents and profits, and not by a -salci Bat it wils deciteed,' that
the portion should be raised together with the interest and
costs, and by ii sialetto, wherein the^defeiidant, the heir^ waa
forthwith'^to j6in';'aiid>this,>althOttgh the bicuQibranctts wercr
so great, tbatlto wlikde inheritaatte^'would pvodx^ce little mart
than the SODl.^* Wherefore dtiwas decreed din! the prindpal
esse, that the legooyidioald be«aiaed wiih interest 4om thfa
end>of the" yeiir^ and viba land 4Mng devised to jt4 for life
'J. >; only^remahidsr tb MJin fce>$ ' the court would ndt direct thd
legacy to be raised (1) out of the annual pro&tily for that'
might whoUy dtfeatfthe^estate^for life ; but that the tenant
for life shovdd- oidy >keep' »dowtt the interest, and that* the*
1000/. should be raised by a sale of so much as would be suf-
«"i - a- fioieBt to pay the-^same with t interest and costs. <2)

(1 ) Vide Manaion v. Manatonp ante, (2) Reg. Lib. B. 1733. IbL S17.
!tvoL334.

DeTerm.S.Ha.nSi. 175

- Note. The Master of the Rolls was present in' cottit, wheii Wilson

this cause was heard i and^ on bemg spoke to by the Lord ^-

Chancellory declared himself of the same opinion. (1) rsNCEs.

(I) Vide Duke of Chandot ▼• Talbot^ ante, 2 toI. 612. and Cowper ▼• Scoit^
ante, 119.

^/^f

,S^3>

Qa-

LOMAX V. HOLMEDEN. r ire ]

Case 42.
Ma. LoHAX, late of St. jilbans, in Hertfordshire, the plains sir Joseph

tiff's grandfather, by his will devised all his lands and tene- Jektll,
ments to a trustee, (one Mr. Graves Norton) and his heirs, ^^^^^
to the use of the testator's wife for her life, she paying 2 eo c aIk
SOO/. per asmum to his the testator's scm. Go/eft Lomax, until 365. pi. 22.
his age of fiwrty years ; and in case the wife should die before £^5en "J
the m6 Caleb should attain t» the said age of forty y^rs, then tUmyioiisiiaU
to fai^ (the testator's) daughters, and to their heirs, they pay^ of forty tcSb*
ing bnto the said Caleb 2001. per anmm, until his age of ^opimr br ti>«t
forty yea^ : the testator hoping that his son Cakb would by will hare seen
that time have lived to see lite folly. After which the tes^ ]^^ d^'befo^
tator devised the premises t6 his son Caleb for life, remainder ^?^; ^^« ^^
to trustees and their heirs diiifing the Mfe of Caleb, in trust danghten
lb support the contingent remainders, and from and after the 2*jJ[^i^iB^
death of Caleb then to the use of the first son at Caleb, and shall attain '
the heirs male of his body, with i^mainder to the second, sTdlMlberoro
third, fourth, and fifth sons of CMeAsueeessively, remainders ^^^i A-'saa-

' '• '; » ; tatcceaaea.

over. ^ . . . g^j^,^ jf ij^

The testator died, thie wife also died. Caleb married, and ^J^Ta foid to
had a son (the plaintiff) l>ut died before his age of forty pay dabu or
years. And tiie bill being (inter aPJ for an account of tiie ^ch auwot
profits of the premises from the death of ^.CofeA^, tiie plaiottiff^s ^ l^h!^
father, the question was, whether lUs^ estate devised by the attainad Ua
will to tiie testator's daughters, until his son Cateb should STwMch^
attain to the age of forty years, should subsist, now Cdkb i^^SJ!^.
was dead, until such time as he- should, had he lived, have taken for
attuned to his age of forty ; or whether it determmed by the " ^^'\
death ot Ca/«& before he arrived to that period ? ^ ^

It ivas argued'for the defendants, the daughters of the tes-
tator, that this devise diet createf an absolute titie and interest
tmtO' them, until im(^ time ' aa their brotiier should have

177 Be Tenn. S: HU. 1732.

I -

LoMAx attained his age of forty yeara, had he lived so long : and for
„ ^* this were cited 2 f%ni. 35* GosUy v. Giffordy but more par-
ticularly Lqim 58. and 3 Co. 19. Baraston^s case.

But the Master of the Rolls^ after time taken to consider
of it^ and having mentioned and distinguished upon the cases
that had been cited^ decreed, that this estate, devised to the
testator's daughters and their heirs, until his son should come
to the age of forty years, did determine on his dying under
that age \ and that, agreeably to all common sense and rea-
son, the term and interest thus devised must cease, when it
became impossible for Ccdeb to arrive at that age. For,
taking it literally, that the daughters should enjoy the land
until CdUb should attain to his age of forty, this would'be to
make them hold it for ever : in regard Calebs when he died
before forty, could never afterwards attain to that age ; that
it is very true, where such an estate' or interest, as in the
principal case, is created for a particular purpose, as for a
fund, suppose, for payment of debts, (which was the case of
Boraston, 3 Co.J there, since the son might h^^pen to die
the next day^ or soon after the testator, it would be very
hard that such an event, occasioned purely by the act of God,
should defeat the fund provided on purpose for the benefit of
creditors : and therefore in aid of the honest intention of the
party, who may be suj^posed to have computed the time
wherein the profits of his estate would be sufficient for that
' [ 178 •] end, in such case the judges, by a liberal interpretation, have
construed the devisor to have meant, that the devisee or exe-
cutor should have the land for so long time as the son, if he
had lived, should have arrived at the age mentioned : but
that in all cases where no such intention appears, the estate
or interest would absolutely determine by the death of the
party under, the age specified in the wilL That such con-
struction seemed the more just in die present case, as the
reason appeared why the testator created this interest by his
will^ until his son should attain to his age of forty years^
namely, in order to guard the estate against the ill-conduct
and extravagancy of his son, the will saying, the testator
" hoped by that time his son would have seen his folly:"
but his son. dying before that time, the testator's estate could
not afterwards suffer, through any folly or extravagance of
the said Caleb. Agun, the will having given the estate^
from and after the .death of Caleb, to his [the said Celebes]
.fouji there could be no reason assigned wliy such son shpold

De Term. S. HU. 1732.

178

be kept oat of the estate until his iather should, had he livedi Lomax
have attained to forty; for by such construction the son ^*

would be punished, not for any fault of his own, but only for i«><KDEir«
the extravagance of his father : and it cannot reasonably be
mtended, that the testator meant to disinherit his heir at law^
without any o£Eence committed by him. (s)

Another question in the case was, that the devise was to
the first son of the testator's son Caleb, and the heirs male of
his body, with remainder to the use of the second, third,
fourth, and fifth sons of Caleb successively, without saying
far what estate, (the words * of inheritance being by mistake
omitted) and there was a son of Caleb bom before, but such
first son died very young, after which tliis son, the phdntiff,
was bom*

woids tantamomit. A. hai two sons, the former of whom dies in bis life-time ;
ilukli have nn estate tail, being the first son at his father's deaths Qtuere.

And the court held, that this son, the phdntiff, being the
first son (y) at his father's death, was entitled to take an
estate tail. For which was cited the case of TVqffbrd v.
Mktm, [E] 2 Vem. 660. However, this point, as it seems,
could not now come in question ; for that the plaintiff would^
in all events, be entitled to the premises for his life, (1)

[£] Quasre autem. For the reason of that case seems rather against this con^
structioD, which is, at least, better warranted by the case of Chadwick v. DoUman,
in the same book, fol. 528.

DeTise to mv
BonA. forlife,
remainder to
his first son in
tail male, re-
mainder to
his second,
third, fourth,
and fifth sons
successively,
without saying
for what es-
tate, or any
the second son

[ ♦179 ]

(1) Reg. Lib. B. 1732. fol. 184. It
was afterwards decided by Lord Hard'
wkke, that the plaintiff took an estate

tail as first son of Calebs 1 Vex. 200.
Et vide Evans v. Astky^ 3 Bnrr. 1570.
(z).

(«) Man^ld v. Mansfieldj 8 Yin. (if) West y. The Lord Primate of
Ab. 201. PI. 13. S. C. 1 Eq. Ca. Ab. Ireland^ 3 Bro. C C. 148.
195. PL 4* («) S. C. 1 Black. Rep. 499.

TOL. HI.

180 De Term. Poicka:, n«5.

A'^

TERM. PASCHiE, 173S.

Case 4S. CROFT v. PYKE.

;Lord Chan- A bill, was brought by Gtace the widow of Francit Croft,
cellor KiwG. j^^ ^j^^ recovery of the sum of 1000/. secured by a bond

n ^u f^ All-

397/ pi. 1*2. entered into by the said JFVonm Crofi on his marriage with
462« pL 16. the said GracCy unto her trustee, for securing 1000/. to the
said Grace, in case she shoidd survive her then intended
husband.

Francis Croft was partner with Sir Francis Forbes in the

trade of a cotton merchlmt. The stock was 4000/. of which

each had a moiety, (viz.) 2000/. It appeared that after Uie

marriage, the said Fronds'' Croft took out of the partnership

stock more than the sum of 2000/. which was his share.

' After which Croft died, leaving his partner Sir Fi'onds

ForbeSf and JTiomas Archer, Esq. executors, in trust for his

wife and only child. On the death of Croft, Sir Francis his

partner, intermeddled with his personal estatCi and buried

[ 181 ] the said Croft; and there was a debt due from the said Croft

to the said Sir Francis by bond for 300/. ; but Sir Fronds

died before he had proved the will of his testator Croft , and

left the defendant Pyke executor. Thomas Archer renounced.

Afterwards Grace Croft the widow died, and left her fiither

Thomas Brampston executor, in trust for her child, whom

she made residuary legatee. The child brought the present

bill, in nature of a biU of revivor, for the recovery of this

1000/. as belonging to him under his mother's will.

The child's grandfather, Thomas Brampston, who was

' executor in trust of the mother's will, was examined as a

witness in the cause, to prove there was a fraud committed

by Sir Francis Forbes, in representing the said Firands

Croft to have been his partner in a moiety of the said 4000/.

stock : whereas at that time he was partner only for a third;

and afterwards was to have been admitted as a partner for a

y<f Tern. Pmcfus, 1733. 481

moiety^ upon his the said Croft^s paying to the said Sir Cftpir
Francis IOOO/.5 part of his said wife's portion. p ^*

And it was insisted, that this Thomas Brampsion was no ^ ^^^
good witness, because he was executor, and though but exe- is a gm>d wit-
cutor in trust for the infant plaintiff, and notwithstanding his ^^^^^^^
evidence did not tend to increase the assets for his own be- ^^^ not an
nefit, but for the benefit of the infant; yet an executor can- tmst, as he is
not be said to be a disinterested person, being suable for the ined*lw^a»di-
debt, and liable to pay costs; and consequently differing ton, and to
ftom the case of a common trustee, (1) for which reason the "^'^^ ^"
Lord Chancellor would not admit him to be heard as a wit-
ness. [But note ; the said Thomas Brampsion should have [ 183 ]
renounced the executorship^ and have let another, take out
administration with the will annexed, upon which he might
faaye been a witness.]

The next question was, with regard to the manner of ac« A. and B. an
counting, and touching the allowances on the account; it (i|!^^ ".dres
being urged, that the bond given by the said Crofts in trust *J^"?^^,oaa?
for his wifcy was a debt by specialty, and given on a valuable a. dies, the
consideration, namely, that of marriage and a marriage Jdmfnfstonr
portion; whereas the embezzlement of the stock by Croft if the wife ^
could be only a debt by simple contract. out of th/se-

On the other side it was said, if the plaintiff desired, satis- P;^^ ?^^^

#.--,,,. . -, „ of A. on there

laction of the bond m question out of the .separate estate of heing effects,
the said Croft the husband; he must mdeed in that respect ^l^^J""
be preferred to any simple contract creditors: but if satis- before other
faction .was sought out of the partnership stock, all the part- i/there is no
nership debts must be first paid. And in the present case, J?te 'a^^
the fact being (as was alleged) that the. said Croft^ the bus- wife' would
band, had taken out of the stock 20Q0/. and upwards, he had ^on^fttif^
no stock left. And there could be no colour of reason, partnership ef-
that Crq/'/'s debt being by bond, or even had it been by thepartnership
judgment, should be pwd out of Sir Francis Forbes* % moiety ^^^ "?°** ^
of the stock; and for this was cited 2 J^%ryi. 293, 706. {a) (i,)Voi.2.500.
that the copartnership debts (A) are to be first paid out of |2*^ ^^"^^

{h) Ante 35. Hbrsey's case, and post 405. Rx parte Rowlandfon.

(1) Vide Goii v. Tracyy^Mska^ Lvol. . ParAjer,2 Vez. 219. Fotherhy v. Pate^
290. Man v. ¥Fard^ 2 Atk. 229. Ma- 3 Atk. 604. Goodtitle v. fVeiford^
bmik T. Mdcalfa, 3 Atk. 95. Dixon v. Pong. 140. («)

(x) Belkw V. BMisely 1 Ba. and Be. 96. Mulvaey v. DiHon^ i Ba. and Be,
409. Hunt V. Bcachy & Mad. 358.

% Z ...

18« Be Term. Pascha, IISS.

Ctprr the partnership stock, (in case one of the partners becomei
p^^^ bankrupt) and afterwards the separate debts.
[ 183 *] ^^^ ^^ ^^ opinion was the Lord Chancellor, who de-
creed, that it should go to an account, to see what the
testator Firancis Croft, the partner, ovred to the (1) part-
nership;, and after those debts were paid, if there should re-
main any surplus in his share of the stock, then that to be
liable to answer the bond due from Croft to the trustee of
the wife.

debted bj'one ^TAtf^, It appearing that Firancis Croft, the deceased
bond to B. and partner, was indebted to Sir Francis Forbes in one bond of
Sndto a tod 2^'' '^ ^'^^^ insisted that, as Sir Francis had the power of
leavefl B. and retaining that bond out of the assets, so the same beinff in

J.S. ezecu* i_. i. j . i • , ^^

ton. B. inter- bis nands. It amounted to a retainer, and consequently that

S^goodTlSd ^®°^ ought to be allowed in the account before the bond

dies before claimed by the plaintiff. (2)

Woieuy 1*0 which it was answered; that notwithstanding Sir

election made Fronds Forbes was appointed one of the executors of the

to retMn ; Qu.

Whether, as B. sidd Froncls Croft, yet he never proved the will, and djring

"^l^Z. ^^f^«^ P^<>»>^*«> ^^«ld ^^* "'^^ especiaHy as he had never
floods in hia signified any election, that he would retain for the said

hands, his exe- i^^^j
cntors have DOno.

not the same Though it was replied by the other side, that since an exe-
cutor may assign, release, and do every thing but declare
before probate, even as to the courts of law ; there was the
same reason for his being able to retain before probate ; and
though in the principal case he had not expressly declared
whether he would retain or not ; yet it was plain he had goods
of his testator's in his hands, had intermeddled therewith^
[ 184 ] and out of part thereof had buried the testator, and after

(e) Salk. 307. Buch intermeddling (c) could not have renounced the exe-
cutorship. But the counsel for the defendant, the executor

(1) Weti V. S*w, 1 Vex. 242, (2) See the observation made wi thU

456. (^) Smith v. ue Sylva^ Cowp. part of the case b j Bum^/, J. in Jtjfoi/

471. Gots ^.Dufrssnoy^ Cooke's Bank, v- KolU^ 1 Atk. 173. («)
Law, 497.(iv)

{y) S. C. by name of Skip v. Har- 78- Exports Kingy 17 Ves. 115.S. C-

nood, 2 Swau. 586. 1 Rose 212. Ex parte Reidf 2 Rose

(it) S. C. 2 Eq. Ab. 110. pi. 5. and 84.

see Taylor v. Fields, 4 Yes. 396. 15 (z) S. C. 1 Yes. Sen. 348«
Ym.659. Barker y.GoQdair,ll Yts.

De Term. Pascha, 1733. 184

of Sir Firancis Forbes^ widving this point of the 300/. bond, Ckovt v.
the court gave no opinion touching 'the same. [B] Ptke.

[B] A. lent money on bond to B.y who djing intestate, C. took oat administra*
tion to him ; after which C. dying, A. took oat administration de bonis »ofi, Sfc.
to JB.; and it was determined, (ititer aP) that A. might oat of the assets of B. re-
tain for soch bond debt contracted before he took oat administration ; and though
A. happened to die before he had made any election in what particular effects he
woald have the property altered ; yet the court said, it must be presumed he
would elect to have his own debt paid first ; and this being presumed, there would
remain no difficalty as to altering the property ; for as the executors of A. were to
account for the assets of B., they must on the account deduct the amount of the
money lent by A. to B. fVeeks v. Gore^ at the Rolls, Michi 1720. /<fi^^.'^. ^9^.

18li DeTerm. S. Trfn. \7S9.

TERM. S. TBtlNITATIS, 1733.

Caae44. GODFREY v. FURZO.

Lord Chan- A mbrchant beyond sea^ (viz.) at Bilboa in Spain, sent
cellor King, ^qq^q f^^ thence to JB. a merchant in London, for the use

If I tend goods ,^ ,, ..„ -n ^ i rm «

to B. from be- 01 B^j and drew bills on B. for the money. The goods ar-
J2? ofB.^Md "^®^ ** London, which JB. received, but did not pay the
before these bills, and died insolvent. Upon which the merchant beyond
forB^^s m- B^^ brought a bill against the executor of the merchant m
** t^** ' *^*°" ^^^^9 praying that these goods might be accounted for to
goods agam: him, and insisting, that he had a lien on them, until paid;
goods toa^c- *^^ *^^* ^^ would be extremely unreasonable, that his goods,
tor to dispose while unpaid for, should be liable to satisfy other people's
•adhr^^' demands. And the case of one Clare was cited, as lately
^^T-^th^*^" ^®^^^^^ "^y *^® ^^^ Chancellor, where a merchant beyond
goods are not sea consigned goods to a merchant in London, to the mer-
debts of such chant in London^ s own use, and drew bills on the merchant
I'An^^pt. in London, who, having received the goods, became a bank-
rupt; yet it was held, that these goods, which were not paid
for, should not be liable to the creditors of the bankrupt.
[ 188 ] On the other hand the Attorney-General urged, that on
A tradesman deUvery of the goods to the master of the ship beyond sea,
^er of^a' ^ ^ Order to be sent to England, the property immediately
tradesmaain became vested in the merchant in London, who was to run

the countrvy

■ends goo^ to the risk of the voyage ; and Mr. Willes compared it to the
dtocs^noTap?^ c^® of * tradesman in London, by order of a tradesman in
point or name the country, sending goods to the latter; in which case,
afterwards the though the country trader does not appoint or name the
ri^^^Mo?" ^*™®'* ^^^ afterwards embezzles the goods, the trader in
the trader in ' the country must Stand to the loss, {to) as had been deter-
*^sto7to n^i^ttcd by the Lord Chief Justice Eyre at Shrewsbury as-

must

the loss. sizes.

(w) Daue$ ▼. PecAr, 8 T. lU 330. Button v. Solomonsony 3 Bos. and P» 582.

D9 Term. 8. Trin. 17S3.

186

Lord ChaneeUor, Were the law to be ethermeie in the GoDnin
instance that has been mentioned, it would create the utmost _ ***
difficulty in dealing, ji fortiarij where a trader in London
sends goods to a trader in the country, who receiver them, and
does not pay for them, the property must in that case vest in
the trader in the country. As for the case of Clare, I do not
well enough remember aUi the particulars of it ; but probably
there were circmnstancea of compassion therein, which
might weigh with the court. When a merchant beyond sea
consigns goods to a merchant in Zfondon, on account of the
latter, and draws bills on him for such goods ; though the
money is not paid, yet the property of the goods vests in the
merchant in Xondem, who is credited for them, and conse-
quently they are (I) liable to his debts. But where a mer-
chant beyond sea consigns goods to a factor in Landony who
receives them, the fsictor in this case b^ing only a servant or
agent for the merchant beyond sea, can have no property in
such goods (y ) ; neither w31 they be affected by (2) his bank-
ruptcy : and thb Lord Chancellor said, he had discoursed
with merchants about the matter, wh6 held this to be the
practice amongst them ; and therefore in the principal case
the court denied granting an injunction to stay the executora
of the merchant in Xoficbit, from disposing of the goods. [A]

[A] A trader iu London having money of /. S, (who resided in Holland) in
his hands, bought South-iea stock, as factor for J. S. and took the stock in his
own name, but entered it in his account book, as bought for J. S. after which the
trader became bankrupt. Determined, that the trust stock was not liable to the
bankruptcy. By the Lord Parker, who said it would lessen the credit of the
nation to make such a construction. Ex parte Ckion, Trinity, 1731.

[187]

(1) Vide Snee v. Prescot, 1 Atk.
345. D'Aquila v. Lambert, Amb. 399.
Litkbarrom v. Mason, « T. R. 63,
and 1 H. Black. 357, {x) and the
several cases there cited. Kinloch v.

Crai|r>3T.R.119,783.

(2) Ex parte Duma$, 3 Vez. BM.
1 Atk. 339. S. C. Maee v. CadeU,
Cowp. 233. Et vide Copeman v. Gdl^
lant, ante, 1 vol. 314.(«)

(x) 5 T. R. 367, 683., and 6 East
30, n. (a).

(^) Newiome v. Thornton, 6 East
17. Ex parte Pease, 19 Ves. 44.

(s) Zinek v. Walker, 3 Black. Rep.
1154. hasiallY. SmUhers, 12 Ves.
119. BoUon T. Pullery 1 Bos. & Pul.

539. Giles v. Perkins, 9 East 13.
Taylor V. Plumer, 3 M. JSc S. 563. 3
Rose 457. Ex parte Pease, 19 Yes.
35. 1 Rose 333. Ex parte Peyronj
2 Rose 366. Ex parte Aiken, 3 Mad.
193. Ex parte Smith, Buck. 355.
Thompson v. Giles, 2 B. & C. 432.

3 If jf.y. iT/r-*^. r/r.

187 Z)< Tcrffi. S. 7Vm. 17S3.

C»» 45. HALL V. HARDY.

' Sir Joseph Uj»on a bill brought to compel the defendant to make a spe-

Master of ^^^ performance of an awards the case was thus : the plaintiif

the Rolls, and defendant were brother and sister^ between whom theie

3 Eq. Ca. Ab. was a dispute touching the fee-simple of a small parcel of

Bai Ues to ^^ under their father's will \ and the plaintiif and defendant

compel a spe- entered into sL bond in the penalty of 200/. to stand to tlie

anceofim * award of arbitrators touching this matter. The arbitratore

yr*M*** S»" ^*^® *"* award, that the plaintiff should pay 10/. to the de-

wherethepar- fendant at Buch a day, and 90/. to the defendant at another

hat reccired^ ^^7 5 ^^ *^** thereupon the defendant should procure his

the money in wife to join with him in a fine and deed of uses, and thereby

whereof he^B convey the premises to the plaintiff and her heirs. He

MtSTJSdfor P^*^^'^ P^^ **^® defendant the 10/. which the defendant

accepted upon the day on which it was awarded to be paid;

afterwards the plaintiff tendered the remaining 30/. on the

day on which that was awarded to be paid, and the defendant

was willing to take the money, but would not execute the

[ 188 ] £Qe and deed of uses. Wherefore the plaintiff brought this

. bill to compel the defendant to a specific performance of the

award.

Upon opening the cause, the Master of the Rolls said, he
thought this a strange bUI; for which he knew no precedent,
and that the plaintiff must sue his bond.

Whereupon I urged, that the plaintiff had actually pud
the 10/. according to the award, and the defendant accepted
it, and thereby undertaken to perform the award ; that if this
suit were not to be allowed, the plaintiff would have no re-
medy to get back the money paid by her to the defendant ;
that in 2 Vera. 24, Norton v. Mascall,{x) the court decreed
a specific performance of an award, though in that case it
was not executed, and in strictness of law void.

To which his Honour replied, that because the award was
not good in law, therefore in the case cited there might be
reason to decree a specific performance. However, the court
desiring to know what the counsel for the defendant had to

(x) S. C. d Cba. Rep. 157. 3d Edit. v. Bishop^ 1 Cha. Rep. 75. and see
Scoii r. Wrajfy 1 Cha. Rep. 45. Bishop Wood v. Griffithj 1 Swan. 54.

D« Term. 8. TVm. 17SS.

188

[189]

taj, as to die defendant's haying accepted part of the money; Haia
k was insiated on his behalf to be sufficient^ that there was •• ^*
(unless in very particular circumstances), no instance of a bill
hemg brought for a specific performance of an award. Be-
sides, that this was an unreasonable award, (^*0 that the
husband should procure his wife to join with him in a fine^
wUch it might not be in hia power to do ; and therefore the
court would not oblige him to it. Also the wife's joining
ou^t to be free, and not by the compulsion of her husband ;
tfai^ the plaintiff had a plain, proper and natural remedy,
which was, to sue the bond, whereon the penalty would be
recovered ; and even as to the money which had been paid,
if the defendant would not perform the award by procuring
his wife to join with him in a fine, the plaintiff might recover
it back, as received to the plaintiff's use.

Matter of the Molls. There have been a hundred prece- Wlien the
dents, where, if the husband for a valuable consideration ^21^ m-
covenants, that the wife shall join with him in a fine, the lideratioii co-
court has decreed [B] the husband to do it, for that he has ^^e ihail
undertaken it, and must lie by it, if he does not perform it. i^ ^e*. ^i
The money paid in pursuance of the award cannot be said to court wiU en-
have been pwd by the plaintiff to the use of the plaintiff her- foj^mi?^
self; and Uie precedent in Mr. Femon shews, that this court nch corenaat.
has decreed a specific performance of an award, which is
more especially reasonable in the present case, where the
plaintiff has paid, and the defendant accepted, part of the
money awarded ; for by this acceptance the defendant has

{B"] Because tn all these cases it is to be presmnedj that the husband, where
he covenants, that his wife shall levy a fine, has first gained her consent for that
purpose. So said b j the Master of the Rolls, in the case of Winter v. D^Evreusy
Trinity J 1723 ; and that the interest in such covenant has been taken to be an
iaheritance descending to the heir of the covenantee. Bat, after all, if it can be
made appear to have been impossible for the hasband to procure the concurrence
of his wife, (as suppose there are differences between them) surely the court would
iH»t decree an impossibility, especially where the husband offers to return all the
money, with Interest and costs, and to answer all the damages, (x)

(») This point has been much dis-
cussed. Barrington v. Hame^ % Eq. Ca.
Ab. 17. PI. 7. Sedguick v. Hargrove^
% Vex. Sen. 67. Withen v. Pinchard^
cited 7 Yes. 475. and Morris v. Stc
phensonj 7 Ves. 474. are cases where
the husband has been decreed to pro-
cure the wiCe to join ; and Ortread v.

Roundy 4 Yin. Ab. 903. PI. 4. Emerg
V. fVasey 5 Yes. 846, and S. C on ap-
peal, 8 Yes. 505. are cases where a
decree to that effect has been refused.
And the dicta in more recent cases sup-
port those decisions, Davis v Jones^ 1
N. R. 367. Howei v. George^ 1 Mad.
6. itfarlm V. MiicAe/^ « J. & W. 425.

tm M^efm. & Tm^^VldSi

HaMti

UioA amhrCabM t& peilbrmthr awiffd; (as coMeiited to^ it^ and
\ff\ : iBiflieltlasoiimagroeaieiitforavaltMU^

Olei jftoney yaii'hltti.' Wher«foi<ei take a decree for the de^

fendant'a ferfomMide' <)f tb^ awards ^pwa Ae payment of Hie

tealAie ol the* money ttiv«a>ded^ and 1^ 4iim pay ooats^ it beiof

a 4efebM ajgiainat eoisMleMe to take'thd money awarded, aod

yvtreftne to perform Ua part of iihe 'award. '

[ 190 ] Note. Tbef^ decreea- may not 4iafre' been «flciaI^'bedN»P

Durmnce be- awa»da are commotily td^^ay money $ in 'Whiob caeert abiB>

tollylSSS^, in ecfadty to 'compia a pctfomutoee ia impro^: but whase

udtodo any' fiie award is to do anything in apeeie^ as to ooufeyanreatati^

ten?; wdwhy &Or in'tnich^eaaej if the defendant hns accepted the mosey

^^^bi^x^ a;«Mrded him in MitiisfhkctiGta of tike conveyance, it is U^y

only to compel rcflBOHabley that he «hoidd make the conveyance ; the rather,

Sr^Se^S.*^ for that if the phuntffl had ^ued^ the bond- at tow, the de-

fendaat would^have been relievabte by-bill in equity agamst

the penahf of the - bond, ii^ a '^uanfutH dammfidaius. So

that aucha deoro^, 4bu» in the principal citse, prevents a soft

in equity. -(l)

i*<

(1) Reg.]Lib. A. 1732. fol. 554.

Case 4(# COLTON v. WILSON ET AL'.

Lwd-^Clkfln^- Thb defendant, Mr; Wtison, was a counsel of note at Leeds
Geitori£im»; in' Tarkshire^ and had articled to purchase an estate in York-

«a?' MO^^' '**''^^ ^^ '^^^^ The^articles were dated the 20th of Fe-

Oat articlee' hruanfy 1724, and tiiis biU was to compel him to complete

•ad^L^e ^^ purchase, and pay his purchase money.

istmder a will The case was thus : This was part of the estate of Henry

eqaity egainst TujfloT^ who had no issue, but had two brothers, Qeoifge and

U^Mm^lJI^ -Hifgr* Taylor; the said Henry Ibyhr had mortgaged the

eqaity wiu premises for a considerable sum, amounting to near as much

ponSiair^o ^ ^^® purchase money, and owing other debts, he made his

2^ tMr will, dated the 20th of February, 1/22, thereby devising all

his real estate to his youngest brother, Hugh Ihylnr, and

his brother-in-law, (one Rereshy) and their heirs, in trust to

sdil, and-pay hia debts «id legacies | and what remained after

debts and legacies, was to go, by the will, to the testator's

De Term. 8. Trin* 173S.

191

next broCber and %eir, GSorge Tifylor", wha waft beyiond iea, Coltoit
m the service of the JBasi India- Com^psa^. Soon after the ^- .
testttor died.' Hugh Tcfybrj the-testator'fl yoangeet brother,
and oneof the tnnteea in the will, alone covenanted by arti-
cles dated as above, wfth the^ defendant ff^oit, to sell part
of the tmst estate to the defehdaht ^&c9r for 47p(V., and to
convey the same to ff^lson at his request, vdio covenanted
to jay interest for the purdiase money from Lady-dmf tttetk
next; The creditors of' the testator, Henry Hn^lat, bring
their biO against the defendant, Wtban, to compel him to*
complete his purchase, and to pay his purchase money, to
the end they might be satisfied their debts.

The defendant tmion said, he believed Henry Tayhr, the
testator, did duly execute his will, and devise the premises
to be 8old> and-adnfitted the artllcles, and that he was ready
ta proceed in his purchase, all proper parities Joining. The
will was proved in this court 1» be' duly executed : but the
hefar who was beyond sea, in the East India company^s ser^
vice, though made a party^efendant, yet had not appeared
to, or answered, the bfll ; and the deCindant WtUony though
be was at first willing to purchase the premises; and had en-
tered on good part thereof; jret other part of this estate, on
winch he had not entered,' being much out of repair, the te-
nants racked, and the rents likely to fid, he was now de-
sirous of being diiichai^d 6*601 Iiis purchase.

And it was on his behalf Insisted, that this being in the
case of a vritt not proved ib equity against the heir, it was a'
defectihre title (x) ; that none of the witnesses, that had been
examined for the will, could be read against the heir, who in
this case was probaUy adversary, and offended by the will }
or else it might be reasonably presumed, that he would,
though beyond sea, have been prevailed on to put in his an- [ 103 ]
swer to the bill : but that the heir might watch for an op-
portanity tiH the witnesses to the will should be dead, when
he would contest the will ) and though the defendant had
said in his answer, that he was willing to proceed in the
purchase, yet it was upon terms, that all proper parties >
should join, one of which proper parties was iheheir at Jaw ;
and tiiat .it would be^ a difficulty on the court to compel an

(«) Se^ Sugden^s Vend, and Parch. 308. 6th ed. Morrison v. JmoUL 19
Ves. 573. ^

192

De Term. S.

1793.

CoLTON unwilling purchaser to accept. of a porcliaseji if there were
-^ ^' any colour of objection to the title.(l)

* Lord ChancdloT : It is very proper that a will disposing of

l»roper to loods should be proved in equity, especially in the case of a

jjuids in^ ^^ modem will. But I cannot say this is absolutely necessary

cqaity^yetthe to make out the title, any more than it would be to prove a

•SSe^nl^ deed in equity^, by which the estate is seUled from the heir

«^*">n% «B7 . at law, after die ancestor's death. The will preyenta and

to prove a breaks the descent to the heir, as much as a deed, and the

deedineqmt;^. jj^nds of the witnesses to the will may be as well proved aa

those to a deed ; and it is the better, if in the indorsement to

the will it is mentioned, that the will is attested by three wit*

nesses, who subscribed their names in the presence of the

testator.

Now, as it would be no objection to a title, if a modem
deed, on which the title depended, was not proved in equity^
why should it be so in the case of a will, where the same ap-
pears to be duly attested by three witnesses, whose names
are mentioned to have been subscribed in the presence of the
testator ? But in the' present case it appears the defendant,
who articled for the purchase, knew at that time that the
[ 193 3 heir was beyond sea, and still accepted the title, without inr
sisting that the heir should join, or that the wiU should be
proved against the heir. Also the defendmt admits by his
answer, that the wiU was duly executed ; and, by entering
upon great part of the estate, has himself executed the pur-
chase; for which reason let him pay the rest of the purchase
money, with interest, according to the articles, and at the
same time let the trustees and mortgagees join in proper
conveyances to the defendant the purchaser. (2)

It seems im this case to have been a great help to the title.

(1) So, Marlow v. Smithy ante, 2 vol.
201. Shi^lmd V. Smithy 1 Bro. C. C.
75. Cooper v. Denne* 1 Yes. jun.
566.(y)

(3) Reg. Lib. A. 173^ fol. 574. by

the name of Colion v. Rousb^f so de-
creed on a rehearing^ the former de-
cree having discharged Wibon froM
his purchase.

^) S. C. 4 Bro. C. C. 80. Mitchell
V. Neaiy 3 Vez. Sen. 679. Sheffield v.
Lord Mulgraeey 2 Yes. Jun. 536.
Crewe v. Dtcken^ 4 Yes. 97. Rose v.
Ca//ancf, 5 Yes. 186. RoakeY.Kiddj
5 Yes. 647. Vancouver v. Blia^ 11
Yes. 465. Lowe$ v. Lushj 14 Yes.
547. Sirq>^Adfi V. iSco//, 16 Yes. 273.

Wheate v. Hall^ 17 Yes. 80. Shper
V. Fuh, 3 Y. & B. 145. Eyton v.
Diekeny 4 Price, 303. Hartleg v*
Smithy Buck. 368. JervoUe v. Duke of
Northumberland^ 1 J. & W. 568.
Marshall v. Bou^eldy 3 Mad. 17$.
Sed vide Bisooe v. Perkim^ 1 Y. fc B.
493.

JDe Term. & Trin. 17S3. 19S

that the mortgage made by the testator^ and prior to the will, Coltoit
was for the greatest part of the purchase money^ which must w^'
be kept on foot for the protection of the title, .

.... i&f

ROGERS V. ROGERS. • Cue 47.

Onb made his wQl^ and thereby gave 5/. to his brother, Lord Chan-
(vho was his heir at law) and made and cqnstituted his dearly cellor Kino.
iehvedm/e his sole heiress and executrix of all his lands, |||'^^^^^
and real and personal estate, to sell and dispose thereof at Ca. temp. Til.
her pleasure, and to pay his debts and legacies. The ques- 2 Eq. Ca. Ab. •
tion was, whether the wife was a trustee for the heir at law, ^' p'*^^* .

' ' One makes bis

as to the surplus of the real estate, after the payment of the wife bis sole
testator's debts and legacies ? ^JriSTof

an hSs feal and persoeal estate, to sell and dispose tbereof at ber pleasure, to nay bis debts
and legacies, and gives bis brotber (wbo was bis ne^Et of kin and beir) 5/., tbe win bas tbe re-
eidne to berown Qse, and not as a trostee.

After great debate by counsel on both sides, the Lord
Chancellor decreed, that the testator's wife was entitled to .
the premises devised, for her own benefit, and that there was
no resulting trust to the heir at law of the testator (x) ; that
the case of North r. Cromptqpf 1 Chan. Hep. 196. was in [ 194 ]
point ; that the devise that the wife should be sole heiress of
the real estate, did in every respect place her in the (a) stead (a) Nor. 48.
of the heir, and not as a trustee for him; that it was the sty/308*.
plainer, by reason of tbe language of tenderness and affection,
his dearly beloved wife, which must intend to her something
beneficial, and not what would be a trouble only. And what
made it still stronger was, that the heir was not forgot, but
had a legacy of 51. left him.(l)

Memorandum : On the other side was. cited the case of the
Countess of Bristol v. Hungerford, 2 Vem. 645. where one
devised his real estate to be sold for the payment of his .
debts ; and the surplus, if any, to be deemed personal estate^
and to go to his executors, to whom he gave 20/. a-piece.
Decreed the surplus a trust for the heirs at law. But the

(1) Reg. Lib. B. 173^ fol. 330.

(«) urn V. Bishop ^ Londony 1 Atk. 618. ITa/ifow v. fFaUon, 14 Yes.
3tt«

194 JOe Term. S. TVm. 17^.

Rooou tiDurt. thought this a [C] Btiange 4eteniiiBation, andto ga

^ ^* mttoh too far.
Bo«B&s.

[C] This may well be thought a strange determination ; and the rather, for
that Mr. Femon says, it was affirmed in parliament. The case is differently re-
ported in the book intltled Prececfeit^f in Chancery^ fp. 81 J where it is said,
the surplas was decreed a trust In the executors, subject to distribution. And
this is warranted by the Register's book. The decree appears to bear date
3 Jufyj 1697, and to have been made by Sir John Trevor, the [then] Master of
the Roils. The words whereof are as Mow : <^ And as to the surplus of the
<^ said estate, after the debts and legacies paid, his Honour, having been at^
" tended with the will, and having considered thereof, declared, that the said
** testator having by his said will given to each of his executors 100/. a-piecc,(jf)
« there is a resulting trust in them for the benefit of the representatives of the
« said testator; and that the defendants Mrs. Rq)pington and Mrs. MeredUkj
<'who were co-heirs and representatives of the said testator, Sir WilMam
*^ Basset J were well entitled thereto ; and doth therefore order and decree, that
" the residue and surplus of Sir William Bassefs estote, his debts and legacies
** being paid as aforesaid, be equally distributed between them/' It further ap-
pears by a subsequent order of the 18th of November, 1708, in the abofe-men-
tioned cause, that this part of the decree was affirmed in parliament, for it re-
cites, that the decree of the 3d of July had been signed and enrolled, and that
the judgpoeut creditors appealed to the lords, in parliament, who on the ^6th of
February, 1703, adjudged, (2) that the decree, so &r as it had been executed,
should not be set aside or opened : but that, as to the money remainiug undi-
vided pursuant to the decree, the appellants were to be let into a satisfaction of
their debts, according to the priority of their several securities. — After which
the order proceeds to give some directions in regard to the creditors. It is en-
vious to perceive that the sane, persons being heirs and likewise next of km,
(though they took only in the latter capacity) occasioned this mistake in Mr.
Femon^s Report of the case.

(2) 1 Bro. P. C. 66.
Cy) See Petit v. Smith, ante, 1 vol. 7.

Case 48. THOMPSON'S Case.

Lord Chan- This cwise being at isso^, a conuiii88i<H» "ww ^rrattted la

ceUorKiNG. examine witneasea at Algiers, in -<<^'ra, where (among

2 Eq. Ct. Ab, 0ti«i») two vfitnesses were eaotmiiied for the plaintiff. But

419. pi. 12. it fdl.but. tiiat before the execution of the conmuBsion, the

A commisBioii .

i2fiiBg.flpamed plaintiff died^ but .neither the commiBsioners nor witnesses
!rt "es^'^t ^^ a°y ^*^<^^ ^f ^^ plaintiff's death. , And one of the wit-
Aigien, the nesses thus examined was dead, the other was living. The

W uhleb, la atrietaeis; tiieivit abaled, bat the wittieMee i»«re ezkautted there beftre nolioe
of the plmtiff 's death ^ the examination held regular, thongh one of the witnesses was yet IftlPS*

De . Term. S. Trm. I7«l %H

^at)ff4hi» dying beferr-the <Kmmti<w»of:i<iy «innii«iinii^ ITiicMMMNrti
k^wat toBiated, 1;hiit tlM««oit was thereby 4ibatedy the tactcur ^^^^
ti6n of4he'omnndMi<m*fot' that^resMm irrogul^^ apdihat iiic
deposition ttheidd' be ^eiiiqMreesed^' ai^d there beiiig some
doabtabout.ihe>iacty the oourt )tifemd it to>the^aster (Mx^
Ligktkmtn) to'state thelgct, «i4ib Ui opitiion' thereon.

The Master ^Mated the fact tobe as mbQve ; • tegethcrsrith
his opinion^ that the dqponttons were leggiarly taken, it
being beHnteniotiee given to tlM cotnmiaaiftnsBi^.or i«i)iM9fe«f
that the plaintiff was dead; and that diis being 4n a-csforl^of
equity, and done to satisfy the conscience of the court ; the
depositions of the witnesses, where neither the witnesses nor
the commissioners had notice of the death of the plaintiff,
might reasonably be of as great weight, as if the plaintiff had [ 190 ]
been really then living : otherwise great delay and expense
might ensue to the suitor ; and as to the witness that died
after examination, if his depositions were to be suppressed^
the plaintiff, by the act of God, would be quite deprived of
the benefit of his testimony; and the Master grounded his
opinion onihe.ca8e otSitJlandoiph Cr$u>if.4Se€rge Fmwm, -
esq.; (a) where, upon a commission to examine witnesses^ hi)Cro,Cv,
some of the witnesses were examiiied after the demise of the | vem. 400.
Crown, but before the commissioners had notke 'thereof, and Barchv.BiUy*
the commissioners surceased their examination after « such
notice ; and the Lord Keeper [Coventry] the Justices Jene^j
Teherton^ and Crook, with Mr. Baron J)en/um,'h!elA the
examination regular ; and the Judges further held; thai the ^J^^iJJJin a
said exammation being befitire* notice of the demise of < the commiMion
Crown, the witnesses might be indicted for peijmyif they ^^o^f'the"
swore false; in regard what the oommissioners did was crown^butbe-
legal, and no inconvenience could result from allowing^ this thereof, lUbie
evidence ; whereas if it were to be adjudged otherwise, many ^^"^1^
trials, verdicts and attainders, where the proeeedings were theyiwear
^fter tiie King'lB demise, but before notice thereof, would be ^^■^'
inregulte, which would be very mischievous.

Whereupon, after hearing couns^ on both sides, the Lord
Chancellor said, the Master's report was a very judicious one,
and held the depositions to be regularly taken.

Then k vros insisted by the Attorney-General, that the
deposition of* the witoess tibat was living, and who might be
examined over agam, might be suppressed.

But his Lordship said, he would make no^ffisrence; and [ ^^ J
that, though in strictaess there was an abHlement by the

197 Dt Term. & TVm. 17SS.

THomoH'f death of the plaintifl^ and no audi cause m esse, as that in
Case. which the mtneaaea had been examined ; yet it being in a
court of equity, and where the comnusaionerB and witnesses
had no notice of the plaintiff's death, it could not in reason
or justice, affect the validity of the depositions, which were
therefore allowed to stand m tato, as well mth rq^ard to the
witness now living, as to the witness that was dead.(4r)

(«) And see Todu 99. where depo- ing an abatement by marriage of a fe-
sitions were ordered to be published, mde plaintiff. So Smeiair v. Jamsiy 1
notwithstanding they were taken dor- Dick. 277.

C^4g. LORD CARTERET v. PASCHAL.

Loid Chan. Upon the marriage of Sir llamas BromsaU with Mary
cellor Kufo. CaUng, articles were entered into, dated the 7th (^ October,
wfjuS^c *^^ whereby Sir Thomas Bramsall covenanted to settle
' £00/. a year on his then intended wife Mary for her Ufe,
juccm4s]f her jointure.
Si} tc\ / L^J ^fi ^^ Thomas BromsaU, soon after the marriage, died; and

dame Jfory, his widow, brought her bill in equity, to recover
her 5001. per annum, and the arrears and future payments.
And whereas the Lady BromsaU had agreed to buy in a
n^rtgage on part of the real estate of Sir Thomas BromseU,
comprised in these articles; on the 5th oi March, septimo
Annee, it was decreed by the Lord Chancellor Cowper, that
the possession of certain lands mentioned in the decree,
part of the real estate of Sir Thomas BromsaU, and which
was liable to a mortgage before made thereof, should be
forthwith delivered to the Lady BromsaU; and that Xb»
tenants thereof should pay their arrears of rents and tatxsxe
rents to her^ and that she should enjoy the same, until she
[ IM ] ahoold be rrimbnrsed what she should have paid towards the
mortgage on the estate, with interest, and likewise all arrears
of her annuity or yearly rent of SOOL with costs, and the
Blaster to see what the same should amount to.

Lady BromsaU married Doctor Herbert; whereupon the
suit bdng revived, the Master reported 4527'. l&s. 7d. to be
doe for the arreara of this rent at Latfy-iky, I7M; ^"^

De Term. S. Trin. 1733. 198

report was confirmed. By indenture dated the 9th of June, Lord Car-
1729, Dr. Herbert assigned the said arrears of 4527/. 155. 7^. tebet
and all subsequent arrears^ together with all benefit of the Paschal
said decree^ and the proceedings thereupon, to the Lord
Carteret and Sir Clement Cotterell^ and also demised the
said annuity or yearly rent of 500/. unto them the said
Lord Carteret i and Sir Clement Cotterell, for ninety years, if
Doctor Herbert and Lady Bromsall his wife should so long
live; and by deed poll dated the 12th of the said June, 1729,
it was declared, that the said assignment was intended to
vest the property of the said debt in the said trustees, in
trust, that after the Lady BromsalVs death, and not before,
they should pay 500/. due from Doctor Herbert and his said
wife, to Sir Thomas Cross, Baronet; and afterwards should
pay 3900/., to the Lady Granville, in full of all demands
due to her, and in trust to pay the residue to such per-
sons, and in such manner, as he by his deed or will should
appoint.

In October, 17^9, Doctor Herbert died : afterwards Lady
Bromsall, surviving her said husband, died on the 2d of
Jpnl, 1730.

Under this assignment and deed of trust made by Doctor
Herbert, Sir Thomas Cross claimed his debt of 500/. upon a
bond due from Doctor Herbert^ Lady Granville also claimed
the 3900/., by way of debt due from the said Doctor Her^ C 1^0 ]
bert.

And the assignment being voluntary as to the surplus, the
question was, whether the administratrix of Dociov Herbert,
who was the defendant Susannah Herbert, or the administra-
trix of Lady Bromsall, who was the defendant Elizabeth
Paschal, was entitled to this surplus I

And first it was admitted on all sides, that if a man in his A man pot-
own right be entitled to a bond, or other chose en action, he ^"^^ ^^^ *c .
may assign it without any consideration : but here, it was ^^^* '^^
said, was a cAo^e en ac/io;i,' which the husband had only in mayautgnit»
right of his vnfe : in which case he had no (a) absolute title tl»o»»^J»i*>-

O^ '^ ^ ' out a COQBl-

to it, bat only a right to endeavour to reduce it into posses- deration,
sion, if he could, during the joint-lives of him and his wife : jonea'v. Earl
which^ if he should not be able to do, the same would ®^ Strafford.
remain, as it was originally in the wife ; for which the case
in 2 Fern. 401. of Burnet v. Kinaston was cited, and relied
upon as in point ; the court also appearing to be of the sams
opinion. '**■

VOL. Ill, M

199 De Term. 8. Trin. 1733^

TERFT ' ^fyf '^ ^^ agreed, that where the baron is thus eatitied

9. to a chose en acHoUy [D] as he may release or forfeit it, bo if

Paschal, he should assign it for a valuable consideration, (as bad un-

•e»Bed ST doubtedly been done in the principal case, in respect to Sir

choBc en ac- ThwMu Cross and Lady Granville.) it would be good.

tion m right of / »/ o

his wife, may assign it for a vahiable conddevation. Secoa, as it seems, if there be no cob-
sideration.

[ 200 ] Sdly, It was also admitted, that in the principal case there
was a diversity betwixt the arrears of rent that accrued
during the coverture, and such as had grown due before the
coverture ; and that, as the profits of the wife's land would
belong to the husband during the coverture, so the rent
issuing out of the land during that time, and which was
payable by the ter-tenant in respect of the profits, might
belong to the husband; for which reason, the authorities
say, that the husband may alone avow for rent iucorred

ass! ^''"' ^^' ^^^^ring the coverture.(A)

But with regard to the decree obtained for these arrears
by the husband and wife, it was insisted, that this did not
any way alter the case, for that the decree was but in
nature of a judgment; and if there should be a joint judg-
ment obtained by the husband and wife, and the husband in
his lifetime, without any consideration, should assign it,
this would not prevent the judgment (nor by the same reason
a decree) from surviving to the wife, if the husband should
die first, as he did in this case ; and that consequently the
administratrix of the Lady Bromsall was entitled.

If the wife has The Lord Chancellor took time till the next day to con-

Md^lfSTSi'. ®^^^^ ®f ^*^ ^^^^ ^® declared it to be his opinion, that not

tended upon Only Sir Thomas Cross and Lady Granville^ (in trust for

htisbimd may ^hom this assignment was made) as they were just creditors,

assign it with- and for a valuable consideration, were entitled to the benefit

out a eonsi- '

deration ; so if a judgment be given in trust for a feme sole, who marries, and by consent
of her trustees is in possession of the land extended, the husband may assign over the ex-
tended interest ; and by the same reason, if the feme has a decree to hold and enjoy lands
until a debt due to her is paid, and she is in possession of the land under this decree, sod
marries ; the husband may assign it without any consideration ; for it is in nature of an
extent.

fD} It is to be observed, that in all cases where a husband makes a settlement
of BIS own estate on his wife, in consideration of her fortune ; the wife's portion,
though consisting of choses en action, and though there be no particular agree-
ment for that purpose, is looked on as purchased by him, and will go to his exe-
cutors. Precedents in Chancery, 63, Cleland y. Cleland, and 2 Fern. 501.
Blots and Martin ▼. Ladtf Hereford. The same point appears to have been de-
termined by the Lord Cowper in the case of p€u:ker v. Wyndhanty Mich. 1715,

according to the author's Report of tbat case. Pre. Cha. 412.

De Term. S. Trin. 1733. 200

of such assignment : but that also considering how this case Lord Car-
was ^circumstanced^ even the voluntary assignment of the tebet
surplus of the arrears by Doctor Herbert altered the pro- p .gcHAL.
perty^ and would entitle his administratrix thereto in pre- r ^^oi 1
ference to the administratrix of the Lady Bromsall; for
that the decree said, the Lady Bromsall should hold and
enjoy the premisses until paid, and that the tenants should
attorn to her. Now it was admitted, that under this decree
Doctor Herbert and his lady were in possession until the
Doctor's death ; the consequence of which was, that this
was an equitable extent, and to be taken as it would be, were
it a l^;al extent ; in which case it would be very plain, that
the husband alone might have assigned the extended inte-
rest, as in the present case he had done ; that suppose a
judgment be given to ^. in trust for a feme sole, who mar-
ried; and the cognizee of the judgment in trust for the wife,
9nd the wife thereupon, by the consent of such trustee, is in
possession of the land extended ; surely the husband in such
case might alone assign over this extended interest, as he
might the trust of a term to which bis wife is entitled;
according to a solemn resolution of this court, and which
was afiBimed in the House of Lords in (a) Sir Edward («) i Vera. 7.
rumer s case. Tuder v, Sa-

mynep Pre. Cluu 419. Packer v. Wyndham.

Wherefore his Lordship was of opinion, first, that Sir Tho^
mas Crass should be paid the money due on his bond ; next,
that the IjsAy Granville was entitled to her 3900/., and that the
surplus of the arrears did belong to the administratrix of
Doctor Herbert, and not to the administratrix of his wife the
lauij Bromsall. {!) {x)

This decree was afterwards affirmed in the House of
Lords. (2)

(1) Vide Squib v. fVsfnn, ante, 1 (2) 4 Bro. P. C. 168.
vol. 378.

(«) And see Mitford v. Mit/ordy 9 Ves. 87, 08. and Bosvil v. Brander,
sate, 1 vol. 458.

t 20» Dt Term. 8. Miehatlis, 1733.

f * ...

TERM. S. MICHAELIS, 1733.

Ca»e SO. BROWN ET UX' v. ELTON.

Lord Chan- On an Appeal from a Decree at the Rolh*

cellor Kino. «.^«^

2Eq. Ca. Ab. ^^^ John Broton married a young gentlewoman, who had a
u^'h^A^' A ^^P^y ^f 400/. left her, payable at her marriage. Sir John
wife sue for a BrowH demanded the legacy, but the executor refused to pay
^x^wiK'-'^x^ ^^» unless some settlement or provision were made for the
court wUi not lady: but on those terms offered to pay the legacy. Sir
payment olr it, John refused to make any settlement, (nor as yet had he
u° d"**^**"*" made any) and with his wife brought this bill for the re-
some settle- covery of the legacy,
mcnt on the r^he ^^^^ j^^j^^g g^^ ^eard at the Rolls, it was there or-

d^ed, that the plaintiff, Sir John^ should make his proposals
before the Master, and should also pay the costs of the suit,
in regard it appeared that the defendant, the executor, as
well before the bill was brought, as also by his answer, offered

r 203 1 ^ P^y ^^'^ ^^S^cyy ^^ ^^^ John's consenting to make, the
settlement on his lady.

And now, on Sir John*s appealing from this decree to the
Lord Chancellor, it was insisted by the Attorney-General and
Mr. tFiUeSj that this being a legacy given out of a personal
estate only, the plaintiff and his wife might have sued for the
same in the spiritual court, and recovered it, without being
tied down to any terms of making a settlement ; and mea-
sures of justice ought^ as much as possible, to be uniform and

Dc Term. 8. Michadis, 1733. 203

tonsistent in all courts | that as this was a mere personalty, Brovn
which the husband might release, (a) the imposing terms p ^'
upon him was taking from him the benefit of the law. Be- / x c^ th '
Bides, 400/. was a small sum to require a settlement for ; and next cue pi«-
there have been instances (i) where equity has refused to fjw§jj,ng».
compel the laying out very small portions ; that since the Kerce^ ute,
executor had admitted assets, he was rather to be looked on
as a debtor for this 400/. than as a trustee ^ and supposing it
to be the case of a common debt, it must seem a pretty
strange defence made by a debtor, when sued by his creditor,
to say, ^*I will not pay your debt, because you have not made
** a jointure or settlement on your wife/'

In answer to which it was urged for the defendant, that
those who would have equity, ought to do equity ; that where
the husband could recover the wife's portion at law, equity
would not interpose, so as to compel a settlement or provi-
sion for the wife : but where the husband comes here to be
assisted in recovering his wife's portion, this court may give
their assistance on what terms they shall think reasonable, [ 304 ]
and nothing can be more reasonable than that care should
be taken to make a proper provision for the wife, and
the issue of the marriage ; that agreeable to this has been
the constant practice, as in 2 Vem. 494. Lady OxendevCs
case, where itds said by the Lord Keeper [Wtight^ that a
court of equity will oblige a husband, who comes there for
his wife's portion, to make a settlement upon her by way of
jointure^ or to secure a maintenance to her, in case she sur-
vives. So in 2 Vem. 626. Lupton et JJx* v. Tempest ei oT,
a diversity is taken by the Lord Cowper, between a husband
and wife's coming into equity, to demand an execution of
the trust of a real estate, (in which case the court will make
no terms with the husband, forasmuch as when the wife has
recovered the estate, she may keep it ;) and where a husband
sues there for a personal demand, in right of his wife ; be-
cause, as this latter, when recovered, will belong to the hus-
band, therefore this court may insist upon terms, as being in
diminution of his right. Also the case of Jacobson v. fTil-
tiams (a) was cited, where the husband was a bankrupt, and ^^^ vol. L 382.
entitled to a legacy given to his wife dum sola, and the as-
signees under the commission sued for this legacy ; where-
upon the Lord Cowper, and after him the Lord Macclesfield^
denied relief, until 'some provision was made thereout for the
wife ; f<>r that the assignees under the commission could bs

De^ Term. 8. MichaeUs, 173S.

[«05]

Brown in no better condition than the husbandy'tfae bankrupt him*
^* self ; and he would not liave been entitled thereto without

LTON. providing for lus wife. So in the case of Dod ▼• HaU, ob
the last day of petitions before the present Lord Chancellor,
the husband was not allowed to have his wife's portion^ with**
out first making his proposals before a Master^ in order to a
settlement or provision for her.

Neither was it material, what the spiritual court woul4
have done, had the husband and wife applied there for the le^
gacy ;. smce, as this was the constant practice of this court,
and a reasonable one too, there could be no colour to make a
different rule here from what had been observed in like cases:
and though the sum was but 400/., still it was something, and
might serve to supply the wife with the bare necessaries of
life ; that the defendant, the executor, could not be consi-
dered as a mere stranger, for he was related to the wife, and
consequently under a double obligation, both as her relatioB
and trustee, (every executor being a trastee for the .perform-
ance of the wiU) to see her provided for in the most benefidal
manner.

JLord Chancellor : I found it to be the practice at my com-*
ing into this court, to enforce the husband, before he recovem
by the aid (1) of equity his wife's portion, to make a settle^
ment ; and as such practice has so long obtained, I shall nqt^
at this time, take upon me to alter it ; although it seems to
(i<) SeeMnner break in upon the legal (a) title, which the husband has to
his wife's personal estate; and this method, however in-
tended originally as a cautionary piovi&iion in favour of the
wife, has sometimes proved inconvenient, but yet custom
and long usage have sufficientiy established it ; nevertheless
I will reverse that part of the decree below, which orders the

V. Colmer,
2 vol. 642.

(1) Vide Harrison Y. Buckle, 1 Stra.
239. Milner v. Colmer, ante, 2 vol.
639. Adam$ v. Pierce, ante, 11. Jetp-
Mon V. MouUon, 3 Atk. 420. Attorney^

General v. Whorwoody 1 Vez. 538.
Jacobson v. Williams^ ante, 1 vol. 389.

(If)

iy) Where the wife has only a life
interest, the court will not compel a
settlement by the husband, unless in
case of his insolvency or desertion of
his wife, or other extreme misconduct;
nor will they, except for the above rea-
sons, deprive him of the interest of his
wife's fortune, although he refuse to

make a settlement. Bond v. Simmoney
3 Atk. 20. SkechY. Tkorington, 2yes.
len. 560. Like v. Beretford, 3 Yes*
511. Macaulay v. Philips, 4 Yes. 15.
fVnght V. Marlay, 1 1 Yes. 12. Ather^
ton V. Nowell, 1 Cox 220. EllioU v.
Cordelly 5 Mad. 150.

De Term. S. MiohaeUs, 173S. 3(96

plafaitMf, Sir John Brawn^ to pay costs to the defendant ; for Brown
I wiU not condemn a man to pay costs for insisting upon a ^*
right, which the law gives him : so let there be no costs [A] r ^qq \
on either side : but as the plaintiff, Sir John Brown, now One ouglii not
affers to make a settlement upon his wife, that settlement Jj^^^^]^ ^^
must be made at hia own charge. costs in thU

court, for in-
sisting on a right which the law gires him.

[A] Sed qwBi* the equity of this part of the decree, whereby the executor
was to pay costs out of his own pocket, (that being the consequence of ord^ing
no costs on either side) for a conduct which the court itself has ever approved
of. (jp)

^ssssssssssm,
{x) Taylor v. Glanville, 3 Mad. 175.

NIGHTINGALE AND OTHERS v. EARL FERRERS. Case 51.

RoBBRT, late Baron (afterwards Earl) Ferrers, was seised Sir Josefs
for his life only of his family estate, with remainder to his Jektll,
first, &c. son in tail male successively. The Lord Ferrers Jr^p'^,?^
had several sons, the first of whom, named Robert, was an
infant of about seventeen ; and a very advantageous match tenant foV^Ufe,
bein? airreed upon betwixt the said eldest son and the only wmaindcr to

J , ^ p _ . __ - ^ . - J the son u tail,

daughter of Sir Humphrey Ferrers, articles were entered with remain-
into dated 26th of September, 1688, and the Lord, Ferrer* ^n^JYni^*
and his eldest son Robert were parties to and sealed the said fant, and on
articles, whereby the Lord Ferrers covenanted, that he and Sw/propoISf'
his said eldest son should within a year after the son should ^°' *^® ■<*°'"

mamatfey th6

come of age, by fine or recovery, or such other good convey- father and in-
ances or assurances as the young lady's counsel should advise, fn'J^^ri,^'*
convey and settle the bulk of the family estate, as to all the articles, and
premises (except the manors of Asttvell and Falcott) to the covenanto^° ^
use of the Lord Ferrers for life : and as to the manors of ***»* within a

year after the

Astwell and Falcott, from the time of the fine and recovery son's coming
suffered, and as to the rest of the premises from the death of {Je^^and wn
the Lord Ferrers, to the use of the said Robert* Shirley for will }oin in a
life, remainder to his first, &c. son in tail male successively^, very^f the^^
remainder to the use of his younicer brothers for their lives '»™Jy «»^^

^ ° to dirers uses.

Jbe inftat son seals the deed, and Mthin a year after he comes to age, Joine with his fathev
in a fine and recovery; the infftot son's sealinf of these articles not suficient to declare the
run of the fine and recovery. [ * 207 }

907

De Term. 8. Michadis, 1733.

Nightin-
gale

9.
Earl

Febrers.

[ 208 ]

The deed of ta
iofant only
voidable*

fluccessively, remainder to their firsts &c. son in tail mak
successively, with a power to the Lord Ferrers, the father, to
revoke all the uses except those limited to his eldest son, and
his then intended wife, and their issue male.

The marriage took effect, and the infant eldest son, having
thus during his infancy sealed this deed together with his
father, afterevards came of age, and pursuant to the covenant
within the year after coming of age, (viz,) in Michaelmas
term then next following, joined with his father in levying a
fine and suffering a recovery : but there was no deed, after
the most diligent search, to be found, for leading the uses of
this fine and recovery. Afterwards the Lord Ferrers re-
voked the uses of all the premises limited to his younger
sons and their issue, except as to the manors of Astwell and
Falcott. Robert Shirley the eldest son soon after died, as
did also his said wife, leaving issue only one daughter, since
married to the present Earl of Northampton. And the late
Earl Ferrers, and also the sons that were elder than the pre-
sent Earl Ferrers, (who had been found a lunatic) were dead
without issue male.

This matter was formerly stirred before the Lord King,
who was of opinion, that the said articles could be intended
as preparatory only to something further, and would not of
themselves amount to a declaration of the uses. But now
coming on again before his Honour,

On behalf of the present Earl Ferrers it was objected, that
these articles, that were executed by the Lord Ferrers, the
father, and his infant son, were sufficient to declare the
uses of the fine and recovery.

First, For that an infant's deed is not void, but only void-
able : for which reason an infant cannot plead non est factum
to his deed, as a feme covert may.

Secondly, Because when the infant in the principal case
sealed the deed, though there was no covenant from him to
levy the fine, and suffer the recovery and declare the uses
thereof, (these covenants being only his father's;) yet the
in&nt son's sealing and executing the deed had this efiect,
(viz J to shew his consent to the deed, and consequently his
agreement that the fine and recovery should enure to the
uses of the deed. And supposing that, after this declaration
of the uses by the father, the son had said no more in the
deed than that he consented and agreed that the fine and
recovery should be to these uses ; this would have been suf*

Ih Term. 8. MichaeUs, 1733. 208

ficient to have declared the uses, and surely thus much was NiasTiK-
implied by the infant son's having executed the deed. GAhit,

Thirdly f That a very slight thing, and words though very -g^^
improper, will yet serve to declare the uses of a fine or reco- Ferrers.
very, which require no set form of words for that purpose. No precise
but only enough to shew the intent of the parties. Now here J^iSte^
was sufficient evidence of such intent : and though this was declare the
done by an infant ; yet when the infant came of age, and had, and recoreiTy
within the exact time limited by the articles, levied a fine Jj-g^t °f ^
and suffered a recovery; as his execution of the deed before meaning of the
shewed his original intention to be, that the fine, &c. should P*"***'PP*"*"
be to those uses : so his joining with his father in the fine
and recovery, as soon as he came of age, manifested a con- [' d09 ]
tinuance of such intention. And as a proof that an infant's
deed is not void, but voidable only, the common case wna
mentioned of an infant's making a lease, reserving a rent, this
lease is liable to be avoided ; but if the infant comes of age,
and accepts the rent, such acceptance affirms the lease, and
makes the same unavoidable.

Fourthly, The infant son's continuing in possession of the
manors of Astwell and Falcoity after he came of age, to which
manors he could have no title during his father's life, but
under the articles and deed of uses of this recovery, was said
to be a sufficient assent to the articles.

Fifthly, Suppose the son had been an mfant as well at the
time of the recovery, as when the articles were executed, diis
had been good, and the recovery unavoidable after he 'came
of age ; and it surely could not make the case worse, that
the son was of age when he suffered this recovery.

Farther : That the infant's suffering a recovery in com-
pliance with the father's covenant, was stronger than a matter
in pais ; as in the case before put of an infant's accepting of
rent after he came of age, upon a lease made during his
infancy.

Master of the Rolls. Though slight words will declare the
use of a fine, &c. yet here are no words at all used by the in-
fant son, who did, it is true, join with his father in executing
the articles ; but it was the Lord Ferrers, the father only, who
covenanted, that he and his son would levy the fine and suffer
the recovery to these uses. The most then that can be made
of this case is, that here is a fine and recovery by the father
and son, the one tenant for life, the other a remainder num [ 310 ]
in tail ; and the uses are declared by the father, the tenant for

ftIO

t>e Term. 6. Michaels, 173^.

NieHTiK* Hfe only, which can no way affect the uses of the remaincler
**^^* in tail. Neither can it be reasonable to interpret the son's
{^'fl sealing a deed (so blind and uncertain in its nature) to derest

Ferrers, such in£Eint son of the inheritance of this great estate, and to
make him but tenant for life thereof; The case put of an
in&nt's affirming a lease for years made during his infancy,
by acceptance of the rent after he comes of age, is not simi^
lar; because there the rent is in lieu of the profits. of the
land ; whereas in the principal case no rent was reserved,
nor any inheritance given to the son in return for the inhe-
ritance ot this great estate which the other side would con-*
strue him out of. (1) Besides, this is a stale point, given up
by EaiV Washington f the present Earl's ddcr brother, who
gave the Earl and Countess of Narihampttm 15,000/. to
join in a fine and recovery, to re-settle the whole fiunily
estate, which accordingly has been done in a sdiemn manner,
and some provision (diough a small one) has been made for
the unfortunate present Earl the lunatic. Wherefore the
Master of the Rolls, agreeable to the opinion of the Lord
King, disallowed and over-ruled this claim, as likely to put
the lunatic Earl to an unprofitable expense and an unsuc-
cessful suit. [B]

[B] Sir Peter Temple tenant for life, remainder to his son Richard Temple
for life, remainder to his first, &c. son in tail. Sir PeCer Temple by indenture
tr^artite (between Sir Peter of the first part, Richard of the second part, and
J, S, of the third' part) covenanted to levj a fine of the premises : but Richard
the son did not join in any covenant in the deed, nor in the fine, bat sealed the
deed. And bj Hale^ Chief Justice. This can be no surrender, in regard the
remainderman cannot surrender', but only release to the tenant for life. And the
bare sealing the deed by Richard the son will neither surrender nor release his
estate ; consequently, the contingent remainder to the first, &c. son is preserved,
there being a right of freehold subsisting in Richard the sou, for the supporting
of this right Hales v. Risley^ 3 Keb. 326, 759, 818.

(1) Sed vide Cannel v. Buckle^ afite, 2 toI. 244. as to the contracts of infants
in consideration of marriage.

D* Teiin. S. Michadia. ITSa. SU

Edmund Lechmere, Esq. N^hew

and Heir of the late Lord Lech-S* Plaintiff. Case 53.

mere, J

Charfes Earl of Carlisle, Eliza- x
beth Lady Lechmere, Widow f^jj^g^^^^^^^
and Adounistratriix: of the Lord!
Lechmere^ et al*^ J

T'ii» bill was bxyMight by the nephev and heir of the late Sir Joscvh

Lord Leehnwrty to compel a apeoific performance of mar- Jektll,
.^ .. 1^^ Master of •

^^^^^^^^^^ ^ ' theRoll8.

Upon the mitf nage of Nicholas late Lord Lechmere^ with q^ ^^^^ .j,^

the Lady Elizabeth Hmoardj one of the daughters of the de- 80.
feodant tiie £arl of Carlisle, articles were entered into, dated 3iTpi. 4^2. 258.
30fch of ^pril, 1719, whereby, recHmg the said intended fj'^^^^^^f^l'
Biarriage, the Earl of Cdrlisle covenanted to pay the Lord Money agreed
Lechmere eoOOL as the portion of his said daughter, and the ,^iarfi*Lhrif
liprd Lechmere coTenanted for himself and his heirs, with be taken as
eertmn trustees, wiliiin a year after his marriage, to lay out the hdr. ^nd
the said 6000/* and 24,000/. of his own money, in the pur- "o ^Jiffercncc

, ' * where the mo*

ohase of freehold lands and tenements in fee simple, in pos- ney thus
^essiOB in the South part of Great Bntam, with the consent JSJout and
of the Earl of Carlisle and the Lord Morpeth, their executors Mttied » de-
and administrators ; the lands when purchased to be setded' Cands ortma-
to the use of the Lord Lechmere for life sans waste, remain- ff <^»»*nf ^*J«re

... it remains in

der to trustees and their heirs during his life to support con- the hands of
tingent remainders, and after the Lord Lechmere* s death, in {Jr :*^thc°*""
trust to pay 800/. per annum, clear of all charges,* (except a|nreemcnt
parliamentary taxes) to the defendant the Lady Elizabeth both case*,
Howard, his then intended wife, for her jointure, and after *°^ m*Wng it
the determination of these respective estates, remainder to r %^i^ 1
the first, &c. son of the marriage in tail male, remainder to
trustees for 500 years, to raise portions for daughters of the
marriage, remainder to the Lord Lechmere in fee. The 500
years' term to be void if no daughter ; and until the purchase
made^ the interest to be paid to th^ s^eral parties that would

212 De Term. S. HfichaeUs, 1733.

Lechmseb have been entitled to the rents and profits of the knd when

'^* purchased^ at the rate of 5/. per cent.
cSlmle. '^^ marriage took effect, and the Lord Car&fc paid 4000/.
part of the portion to the Lord JLechmere, and gave his bond
for the remaining 2000/. which had also been since paid to
the defendant the Lady Lechmere.

The Lord Lechmere was seised of some landb in fee at the
time of the marriage of about 300/. per annum, and after his
marriage purchased some estates in fee of about 500/. per an-
num, and some estates for lives, and other reversionary estates
in fee, expectant on lives, and contracted for the purchase of
some estates in fee in possession, and on the 18th of June,
Vjij, died intestate, without issue, and without having made
a settlement of any estate. None of the purchases or
contracts were made by the Iiord Lechmere with the con-
sent of the trustees. Mr. Lechmere, his Lordship's nephew
and heir, brought this bill to have a specific performance of
the articles, and the 30,000/. laid out as therein is agreed,
and to have interest at the rate of 5/. per cent, in the mean
time.

The defendants in their answer insisted; that the Lord
[ ^13 ] Lechmere intended only a provision for the lady and the
issue of the marriage : and the plaintiff claiming under the
limitation of the remainder in fee to the right heirs of the
Lord Lechmere, the articles as to him were voluntary, and
therefore ought not to be carried into execution in his favour^
to the prejudice of the widow and next of kin ; that the
whole real estate of the Lord Lechmere, or at least so much
as was purchased or contracted for after the marriage, should
be subject to the lady's jointure of 800/. per annum, and
that the whole 30,000/., with the rest of the personal estate^
should be distributed according to the statute.

Upon this case Sir Joseph Jekyll, Master of the RoUs^
after deliberation, thus delivered his opinion.

The question upon these articles is, whether the heir at
law be entitled to have this 30,000/. taken out of the per-
sonal estate and invested, pursuant to the articles; or, in
other words, whether the same be to be taken as land ? and
I hold that it must, for these reasons : —

Fir$t, For that the Lord Lechmere was compellable in
equity to lay out this 30,000/., and settle it agreeably to the
articles.

Secondly, Because the Lord Lechmere living after the year

D* Term, S. MehaOU, 173S. 213

within which time the purchaae was to be made and settled^ LicaiiEas
had broken his covenant. - *'• -

Tftirdfy, For that in consequence thereof, the trustees Ca..,.,,.
might have brought their bill, and have compelled his Lord-
ship in hb lifetime to make such purchase and settlement.

Fourthly f For that the trustees not commencing their suit
in equity, or at law, shall^not prejudice any person entitled
to have this settlement made. And,

Fifthly, In regard the land descended, and which was r ^^4 1
under the value of what the Lord Lechmere was bound to
settle, shall not be taken for or towards a satisfaction of the
lands articled to be settled.

With respect to the^4r^, it is most plam, and according
to the express words of the articles, that the Lord Lechmere
was bound to lay out the sum of 30,000/. in the purchase of
freehold lands in fee simple, and to settle them pursuant to
the articles, and this within a year after the date of the arti*
cles: this seems so evident, that nothing will be attempted
to be said against it.

2dlyj It seems almost equally clear, that the Lord Lech^
mere's not having made this purchase and settlement within
a year was a breach of his covenant. It has indeed been ob-
jected, that something was to be done previously by the
trustees, (viz) that they were to consent : but my opinion
is, that the trustees were not to do the first act : the Lord
Lechmere ought to have proposed his purchase and settle*
ment, upon which the trustees were to have signified their
agreement or disagreement thereto ; whereas in the present
case it is not pretended his Lordship made one single step •
towards this settlement ; consequently, he had broken hb
covenant.

3dly, The covenant being thus broken by the Lord Lech-
mere, the trustees might either have brought an action at law
on the covenant, or a bill in equity, to have compelled a
specific performance thereof. The wife's fortune had been
advanced, (viz.) 4000/. in money, and 2000/. secured by
bond ; so that the trustees had plainly this power : but it is [ 215 1
probable they thought all was safe, and.that the Lord Lech--
mere was well able (as indeed he was) to make a purchase ;
and that, in the mean time, it would be more beneficial to
him to receive the interest of the money, than the profits of
the land. Now if the trustees had, after the expiration of
the year, filed their bill for an execution of these articles, a

Wi& Da Term, & hSckadu, 1738.

IiBOMflne ctmrtof eqiat9rw«mld, and musl^luKre decreed a peii^
''• And taking thia to be so,

Cabusi^s. "^^9 "^^ forbearanoe oC the trostoes in not doing what
A trastee for- ^^ ^^^ ^^^ ^^'^ ^ ^^® done, shall in no sort prejudice the
beariog todo cestwf fia€ ttmsta, (jr) since at that rate it would be in the
office to do, po>w«r of tfttstees^ eifther bgr ibing, or delaying to do, their
ju^°thc*^. duty, to aflEoct the right of other persons ; which can never
toy que tnut ; be maintained. Wherefore the rule in all such cases is^ that
wouldbehi ' "^^^ CQght to have been done, shall be taken a^ done; and a
the power of a nde 80 powerful it is, as to alter the very nature of things ;
feet the right to make money land, and on the contrary, to turn land into
c^eetayque money; thus money articled to be laid out in land, shall be
Whatever, for 4ihc9i as land, and descend to the heir ; and on the other
a vaiaabie con- faflnd, land affteed to be sold, shall be considered aa peraonal

•ideratiOD, is ' j^ , r ^

coreoanted to estate. 1 oalk. 154.

be done, shall

in equity be looked on as done : thus, money agreed to be laid out in land, shall be taken as

land, et e conreNCk

Indeed it has been objected, that there is a difibrence be-
twixt money being deposited in the hands of trustees to be
invested, and where there is no such deposit, but a man co-
venants (as here) to lay out so much money in land, and to
settle it.
Ile9p\ But as to this, there is no manner of difference in
[ 216 ] reason ; tot the nature of the thing is changed by the agree*
hands of the ^^'^^i ^^ which it is the business of a court of equity to cn-
irife's trustees, forcc an execution. In the case of Kettleby v. jtttvood^
Se husband's ^ IP^em. 298, it was agreed by marriage articles, that the wife
^"^^•»^ccnr«- having 1500/. portion, the husband should add 500/. more to
laid out in it ; and that the whole should be deposited in trustees' hands,
Si^on'air*" ^"^*^ * convenient purchase could be found out for investing
husband for the Same in land, which, when purchased, should be settled
to^the wife for ^" ^^ husband and vidfe for their lives, with remainder to
^^^thT^"*" ^^^^ faztj &c. son in tail, remainder to their daughters in
aon. remainder tail, remainder to the riffht heirs of the husband. Before the
Sr^SC: »-di» of «.. p.rcwV h„.l»nd a«l, fe.rt,g -^ by
der in fee to his said wife a daughter, who died about a month old. The
They hare is- ^^^ administered to the husband and daughter; and tiie

sue a daugh-
ter, the husband dies, soon after which the daughter dies, before the purchase made, and thea
the info dies ; the money shall, as land, go to the heir of the husband.

(x) Sed vide Wych v. The East v. jLorJ>^raii^«%, 3Sch.aadLef. 629.
India Company^ post. 309. Havenden Pentland ?. Stoltes^ 9 Ba* and fie. 74*

Dm Term. A Mickaelh, V13S. tl^

Mr of ihe hiiflbasid brought hb billio h«e the monejr laid LscimBU
out in the purchase of hmd to be BCttkd on the wife Cor life ovijy v^ ^
remainder to the plaintiiF in fee } and though the then (m) Qj^jh^^x. *
Lord Keeper [North] refused to make a decree for that pur- (ii}iVm.aa94
pose, and dtaauaaed the bOl, but without coats, yet the party
did not think fit to rest there, but jrefaeard the oanse befioce
the Lord Chancellor Jefffereys (b) who decreed £or the ihehr, (^}l Veni«471.. *
hol<Hng that the moni^y was bound by the articles, aovd
should be Cor the benefit of the heir, as the land would hoire
gone if purchased. This case is in point, and the determi-
nation often allowed to be right; wherein it.iaobservuble,
that but part of the money^ {viz.) that erf the wife, was in
trustees' hands, the husband not having ddpoaitei the 500/.
which he wtts to advance ; and yet no difierence was taken
with regard to the two sums : also, there was a failure of
issue of the marriage, (aa here) and the dispute betwixt the
wife, the administratrix of the husband, and tiie collateral
heir, who was as much a volunteer as the rem«nderman in
the principal case, and equally out of the consideration of the
articles; notwithstanding which the decree was as above,
taking the money to be as land, as well with regard to the
collateral lieir, as to the issue of tke.marriage. So in 2 Fern. [ 217 ]
101, LoMty y. Fairchild, money by marriage articles was to Moneyarttcied
be laid out in land, and settled on the husband and wife, and ^ lafd^Xi^
their issue, remainder to the heirs of the wife, the wife died l^nd, and set-
in the life-time of the husband ; and decreed Cor the heir of A8iaiid,though
the wife against her administrator j the money being ssud io d^!/*^*tvlj*
be bound by the articles, agreeably to the resolntioii in the issue,
above cited case of Kettleby v. Atwood; though no money
appeared to have been deposited ; and an execution of the
agreement was asked by the collateral heir at law, who could
not be within the immediate view and prospect of the articles.
And indeed this is no more than what even courts of law
have come into ; for which reason, when money by a mar-
riage agreement is articled to be invested in land, that money
b held not to be assets for payments of debts, according to
the case of ,Lawrence v. Beverley^ cited in Kettleby v. At- Monef sr-
wood; where money secured by a mortgage, to which an rUgetobe'h^
executor was legally entitled, yet, being articled to be laid ^S^'^tSSd' k
cot in land, and settled on the issue of the marriage, it was notassettmn
by HetU Chief Justice, on a special verdict^ adjudged to be *^ ^^'
bound ba^ the articles.

817 D€ TertA. Si Micfuithg, 1733.

LscHmas The case of Knight ▼. Atkvuj 2 Fern. 20. is still stronger

^J" to this purpose : upon marriage articles, 1500/. was the wife's

CAmLisLE. P^'^o^ ^ which the husband was to add 1500/. ; the whole

MoncT mvt of ^^^X)'* ^ ^ invested in land, and settled on the husband for

which is the life, remainder to the wife for her jointure, remainder to the

other pert the heirs of thcuT two bodies, stoppmg short there, and not ez-

wiCe'e, ie 00 pressing where the estate should iro afterwards. The hus-

aunrrufetobe ^ ^ d

Ittd oot in band * died without issue ; upon which his collateral heir
tied oni^r^ brought his bill to have the money laid out in a purchase of
hodiHidfor land to be settled on the wife for life, remainder to the
to tiie wife for phdntiff in fee, as heir at law of the husband. The objection
I^; J*™^**^*' was, that it was reasonable the remainder in fee should go to

to the bein of ^

their two bo- the right heirs of the survivor, and consequently that the

wfffgff^ftfar- ^^^ having survived, was entitled, or at least, that she had a

ther ; the heir good claim to her own 1500/., or the land to be purchased

yi»«ii faa^e the therewith ; but for the heir of the husband it was answered,

whole. ^^ |^]||3 jxmat be taken as if the bill had been brought in the

^^° J lifetime of the husband and wife, when the court would have

decreed the remainder in fee to the husband. Accordingly,

the Lord Jeffereys decreed the whole money to the heir of the

husband, on a presumption that it was so intended. Here

then the heir of the husband was allowed to go away with

the fee, though no money had been deposited in the hands

of trustees, though the heir was out of the consideration of

the articles, and though there was no express limitation to

the heirs of the husband ; which I take to have been a right

decree.

Where money '^ ^ Vern. 22/. Symofis V. Rutter, there is this case : it

if on marriage was agreed by marriage articles, that 500/. of the wife's por-

in a purchase, tion should be lodged with Sir Francis Child and fFilliam

and setUed to Pain, to be placed out at interest, until it could be invested

the common . ' * i .1. 1 i_ 1 •

uiee in a mar- in a purchase, with the consent of the wife and her then in-
me^,'addloff tended husband, in houses, or lands of inheritance, to be
the clause^that settled on the husband and wife for their lives, remainder
■hall be made to the heirs of their two bodies, remainder • to the
Iftttt of th^**" ^®^^ ^f -*^® body of the wife, remainder to the wife's
husband and brother in fee; the 500/. was deposited in the hands of
nodireiSty,^ trustees, and * before any purchase made, the wife died with-
thoughnocon- out issue, and the husband having afterwards received the
to any pur- interest during his life, died ; upon which the wife's brother
duf^'oie^ife ^^^S^^ ^^ ^^U for this money, by virtue of the renudnder in

of the husband and wife i for still the money shaU be taken as land. [ * 219 ]

De Term. & Michadis, 1733. 919

fee limited to him, as brother and heir of the wife, and also LccKmai
as having administration to her de bonis non* administered by v u* r
the husband, who survived the wife. Trevor, Bawlinson, CARLZSLi.
and Huichins, were at that time Lords Commissioners of the
great seal,, the two former of whom held, that the 500/. being
to be looked on as money, and not as land, belonged to the
defendant as administrator of the husband: that it was not
in all events to be laid out in a purchase, but only by
consent of the husband and wife, who, it did not appear,
had ever consented; and if it had been invested, and a
settlement made, the liusband, as tenant in tail, might have
barred it by a recovery. On the contrary, Hutchins con-
ceived that this 500/. being money agreed to be laid out in
land, was to be taken as land : that it was plain, after the
death either of the husband or of the wife, it was to be
looked upon as land, and the purchase might have been made
during the life of the survivor : that by the articles the sur-
vivor was entitled to the interest only during his life, and
until the purchase made ; and, having no issue, he could be
but tenant in tail after possibility of issue extinct ; that, to
him, this case seemed to be governed by the rule that had
been taken in the several cases of Whiiwiek (1) v. Jemiyn,
or Lawrence (2) v. Beverley, and Ketileby v. Aiwood; and
must not^ upon the same circumstances, be deemed personal

estate, which in other cases had been looked on as land, and

gone as real estate.

In this last case, I observe, it was admitted, that if there
had not been the clause in the articles, that the purchase [ 230 ]
should be made with the consent of the husband and wife, it
must have been taken as land : now such clause makes no
manner of difference ; for, upon a convenient purchase being
proposed, the court would have taken on themselves to judge
thereof; and, without some reasonable objection made, would
have ordered the money to be laid oat in. it, so that such
clause seems to have been immaterial in the marriage articles,
and as if omitted, and the c^nnion of Hutchim to have been
well grounded.

But against this there has be^i objected the case of
Chichester v. Bidkerstqf, 2 Fern. 295. Where, upon Sir
John dhichester^ s marrying the daughter of Sir Charles
Bickerstqff^, Sir Charles articled to pay 1500/. as part of his

^mmmmm^i^tmt^

< i> 9 y«Bi. «8. {%)9jL(^.\i*\.

VOL. III. If

880 De Term. 8. MichadU, \7S3.

daugbter's portion^ which, together with 1500/. more to be
^ ^* advanced by Sir John Chichester, was, within three years

CAausLB. '^^^ ^^ marriage, to be invested in land, and settkd
on Sir John Chichester for life, remainder to his m-
tended wife for life, remainder to their first, &c. son in
iul male, remainder to the daughters in tail, remainder to
the right heirs of Sir «7oAn the husband. Within a year
after the marriage, . Sir John and his lady both fell id of the
small-pox ; the wife, died first, and three days after Sir John
died without issue, having made his will, and appointed his
sister, Frances Chichester, his residuary legatee. Sir Arthur
Chichester, the brother and heir, brought his bill, claiming
the money thus agreed to be laid out in land, the remainder
in fee whereof, in case of fiiilure of issue of the marriage, was
to go to the heir of the deceased husband. Sed per curiam j
this money which would have been land, as to the issue of
the marriage, yet, now the husband and the wife are dead
without issue, is turned into money again, and under the
power of the husband to dispose of as he pleased. It should
[ ^1 J have gone to his administrator, had there been no will; d
* fortiori will it, in the. present case, go to his residuary legatee.
Now, wkh respect to this case, it is remarkable, that the
wife died within three years after the marriage, during which
period the purchase was to be made ; so that the time was not
come within which the money was to be laid out, and till then
it continued money ; or, possibly, the court had some evidence
to induce them to believe Sir John Chichester looked on the
money as personal estate : and if this does not distinguish it
firom the other cases, I doubt, in opposition to so many de-
crees, the resolution here ^ven would hardly be maintainable.
Moaeraitided Afterwards came the case of Ungen v. Sowray, (a) in
in \^^ ^^^» leported in the Book, caUed The Abridgment of Cases
MtUedonhuB- in Equity, 175, where 700/. of the husband's money, and
and imae» ra^ 700/. of the wife's money, was, on a marriage, articled to be
tothTlr ^adT ^^ ^^* ^ h^d, and settled on the husband for life, re-
wUlpmbythe mainder to the wife for life, reminder to the first, &c. son
«rt!^»^Uiou!gh "* ^^ m^e, remsdnder to the daughters in tail, remainder to
the moi^ wu the heirs of the husband. The husband devised all his per-
sonal estate to his wife, and all his real estate to the plaintifl^
and died without issue. Whereupon it was decreed, that the
money articled to be laid out in land was as land and codd

(a) See dso Precedents in Chan. 400, and vol. 1. 179. In which last book
the case is more, felly repoKed, and agreeably to tbe Registei^s book.

Be Term. & Michadis, 1733. 221

not pass by the devise of the [C] personal^ but belonged to Lechmbhb
the plaintiff * as devisee of the real estate. And this decree, _ ^'
first made by the Lord Harcourt, in 171 1> was affirmed in Carljsl^.
1715, by the Lord Cowper. [ *222 ]

Stin later than this case, was that of Edwards v« (a) The (a) 2 vol. 171.
Countess of Warwick^ decreed in chancery, and affirmed in
the House of Ix>rds, where money was articled to be laid out
in land and settled on the husband and wife, and the issue of
the marriage, remainder to the heirs of the husband. There
was issue, but such issue died without issue before the money
was laid out ; and decreed, that the money was to be looked
upon as land, and should go to the heir. Neither is the ob- Erery cettuy
jection, that the plaintiff is a volunteer, of any weight ; for th!^/™oiun- "
this is the case of a trust; and every cestuy que trusty whe- teerornot,w
ther a volunteer or not, or be the limitation imder which he beneat of the
claims, with or without a consideration, is entitled to the *'"*'•. u"^f,**

' ' , reason that the

aid of a court of equity, in order to avail himself of the trustee should

benefit of the trust. There can be no reason, that the trus- J^*^^ ^^ **'

tee should retain to his own use the trust money or estate,

with respect to which he is barely an instrument, in breach

of the confidence reposed in him. Any voluntary bond is Any roluntiiry

good against an executor or administrator, unless some ere- againsTuie

ditor be thereby deprived of his debt. Indeed, if the bond "ccutor,

% thoui^h to be

be merely voluntary, a real debt, though by simple contract postponed to a
only, shall have the preference : but if there be no debt at all, J^JJ^dcM
then a bond, however voluntary, must be paid by an executor.
Besides, in some cases, this court may be under a necessity . [ 223 ]
of determining questions between volunteers, I mean, be-
tween persons Uiat are really such, with regard to those
from whom they claim; as where the heir comes to have his
real estate disencumbered, by applying the personal estate in
exoneration thereof, there the objection of being a volunteer
is strong against the plaintiff^ and yet the court of equity
must determine the point.

[C] It is observable, that the husband might have devised this 1400/. (sub-
ject to his wife's estate for life) either as real or personal estate, according as he
should have signified his intention. Thas, if he had in his will described it as
so much money agreed to be laid out in land, this would have been sufficient to
have made it pass as personal estate, and by a will not attested by three wit*
nesses ; bat without such a particular interposition of the testator, manifesting
his intention, it remained as land, and consequently belonged to the devisee, or
representative of the real, not of the personal estate. Determined in the cases of
Cross V. Addenbroke^ Hilary^ 1719. Fulkam f. Jones ^ Mick. 1720, both by the
Lord Parker. But more particularly in the case of Edwards v. The Couniesr
ofWarwicky vol. 2, 171.

tSS De Term. S. Mickaelis, 1733.

Lechmerb In 2 Fern. 322. Holt v. Holt^ the father of •/. S. articled
^* with a carpenter to pay him 1000/. for the building of an

Carlisle. ^^"^ upon his land, and the carpenter articled with the fa-
ther to build the house. The father died intestate before the
tide8 with a^ house was begun to be built^ and the land on which the house
^*^?^i?«. was to be buUt descended to the son and heir. Held, that

pay him 1000/. ,

to build an the son might compel the widow and administratrix of the
wtate ^thc '* husband, who owned the ground on which, &c, to lay out the
carpenter 1000/. in building the house, although the son, who sought,
build it. A. ^^^ was allowed to take the benefit of this covenant, did not
dies ; the heir entitle himself thereto by any manner of consideration.

of A. shall ' '

compel the buUding of the house, and the executor pay for it.

Articles on So, in Femon v. Femon (a), decreed first by the Lord
w^l^mo- ^^^Sy ^^^ aflBrmed in the House of Lords. A, covenanted on
ney is agreed his marriage to lay out 7000/. in land, and settle it on him-
in land, and self for life, remainder to his wife for life, remainder to the
?Sw *'*^*" first, &c. son of the marriage in tail male, remainder to the
male of the heirs male of the body of ^., remainder to A.'s brother for
theTu^and's ^^^^^ remainder to his first, &c. son. Now, though this re-
brother, shall, mainder seemed merely voluntary, and out of all the consi-
dies without derations of the marriage settlement, and though A. (as was
MdlwWn' *^^® ^^^ urged) had the land been settled * by him in his
only daugh- life-time, might have barred the brother by a common reco-

formed '^U- ^^T' 7^^f ^" ^''^ leaving only daughters, equity compelled a
vour of the specific performance of the covenant.(l)

brother,

though they were voluntary, and though the husband might have barred such remainder.

(a) vol. 2. 594.

r *224 1

^ "* There remains then only the last point, which is, whether

the lands which descended from the Lord I/€chmere to his

heir at law, shall be taken for or towards a satisfaction of

the covenant, as to this remainder limited to his own right

heirs.

A. covenants And here it is objected, that the Lord Lechmere covenants

Md^hb hdrs, ^®^ himself and his heirs, to lay out 26,000/. in the pur-

that he wUl chase of lands, and to settle the same on himself and wife,

lands, and set- ^'^^ fiv^X,, &c. SOU, and for portions for daughters, remainder

tu ^e same to his own right heirs. So that in this case the heir is

on nimseli for , , . i i • i

life, remainder debtor, as bound m the covenant, and yet claims as a ere-
Se^ remltn^' dijtor under the covenant, which is inconsistent, {viz.) for

der (o his first, &c. son, remainder to himself in fee ; equity will compel the executor to lay
out the moDey» though the heir is both debtor and creditor.

(1) Et vide OMgood ?• Strode^ ante, 2 vol. 245.

Be Term. 8. MichaeUs, 1733. 3M

same person to be both debtor and creditor; and as far Lschmsbs

as the heir has real assets, the assets are at home already. „ ^\ «
1 >. i_ 1 * Earl of

and cannot be sued for. . Cahlisib.

Besp\ So, if a man articles for a purchase, and binds him-
self, bis heirs, executors, &c. he may as well be called, in
that case, covenantor and covenantee, as in the present ; and
yet, in respect of the different rights that are in >|iim, the
heir may compel the executor to complete the purchase for
him. Though, to speak properly, the heir at law cannot be
considered as a creditor any more than as a purchaser
under his ancestor; but as heir, he is the representative of
his ancestor, so as to be entitled to all the real estate,
which the ancestor died seised of; and, on the other hand,
liable to answer all the burdens to which such real estate is
subject.

Then, with regard to the lands left to descend, Ist, It is [ 225 ]
plain the covenant does not relate to the lands which were
his Lordship's at the time of entering into the articles, the
words being future^ (viz.) that he would purchase lands.
2dly, The purchase of the leasehold estates for lives, or re-
versions expectant on estates for lives, are nothing to the
purpose, since the lands to be bought are expressly men-
tioned to be lands of inheritance and in fee-simple, whereas
these could not answer the intent of the articles. Indeed, itistheintoB'^
what ought to govern in all these cases of implied satis- ty which^^*^
faction, is the intention of the parties. Now, in the princi- in*^c8thcijre-
pal case, the intention of the party does not plainly appear, vaient a satis-
that his estate which he permitted to descend, and which did '««i<»>«'~«-
not amount to the value of what he articled to purchase,
should be for or towards a satisfaction, consequently this
would be to disinherit an heir by an implication not ne-
cessary, contrary to the known maxim of law.

As to the case of Wilcox v. fTilcox, 2 Fern. 658. where a father's per-
a man upon his marri^e covenanted to purchase lands of to descend in
200/. per annum, and to settle them on himself for life, re- fj*** *^ J°"* f ^^

' ' ^ ^ ' ^ tne same valae

mainder to his wife for life, for her jointure, remainder to his with lands
first, &c. son In tail male, remainder to his daughters in tail; be wtUedin^
and the father purchased lands of 200/. per annum^ after tail; this is*
which be made no settlement, but permitted them to de-
scend; whereupon this was decreed to be a satisfaction of the
covenant : here the father made a purchase fully sufficient to
answer the 200/. per annum. The book takes notice, that

225 De Term. S. Mkhaelis, 1733-

Lechmere the lands wer^ worth 200/. per annum^ which imports that
p ^' ^ they were just of that value ; and this plainly shews^ that
Carlisle. ^^ lands were bought with an intention to satisfy the cove-
[ 226 ] nant^ and the eldest son could not complain^ or object, when
he had his 200/. per annum from his father, that it was an-
other estate than what was covenanted to be settled upon
him, {viz.) that it was a fee-simple instead of an intail ; for
which cause this seems to have been a reasonable decree.
And, by the way, if the eldest son had aliened the fee, and
died without issue, I do not think the second son could hare
recovered under these articles ; for if it had been an estate-
tail, he might have barred it by a recovery [D] : whereas in
the present case the Lord Lechmere has not permitted lands
to descend to his heir to the value of what he cutided to
purchase, and lands of less value shall never be looked upon
A matter of as an equivalent. The lands to be purchased according to
not be taken' the Covenant are to be to the amount of 30,000/.; and as the
*fwi''f^'*f° ^^^^ purchased before the marriage, together with the
greater value, leasehold and reversions purchased afterwards, are not to be
taken as part of the lands to be bought and settled : so the
rest of the purchases which he made are of very inconsi-
derable value, and it cannot be presumed his Lordship in-
tended they should be so construed.
Land, though In the case of Goodfellow v. Burchei, 2 Fern. 298. a man,
er vdue leftto ^^ ^^ marriage of his daughter, gave a bond to her husband
a daughter, no fQ^ part of the portion, after which by his will he gave her
a portion. land of much greater value, and yet this was held to be no
satisfaction, [E] although there were not assets to pay debts,
which is a strong case. And there it is laid down as a rule,
[ 227 ] that where a legacy has been decreed to go in satisfaction of
a debt, it must have, been grounded upon some evidence, or
at least upon a strong presumption that the testator did so
intend it : but in the present case there is no such evidence,
nor any room for such a presumption.

In the case of Cuthbert v. Peacock^ 1 Salk. 155. it was

[D] But qwere^ If the eldest son had died, (as he might have done) before
the then next term, so that he could not have suffered a recovery, whether then
the next son ought to be barred of his chance.

[E] However this might be determined on another principle, (vizJ) that
money and land being of a quite different nature, the one shall never be taken as
a satisfaction for the other. See many cases to this purpose, but particularly the
case of ChapUn v. Chaplin^ determined Paschcey 1734, by the Lord Talboty
post. 347.

De Term. 8. Mchaelis, 1733: . 227

insisted on as a rule, that where a debtor gives a legacy Lechmsrs.
greater than his debt, it shall be intended a satisfaction, be- p ]J* «
cause the testator must be presumed to be just before he is r^jtusj^g
bountiful. But the Lord Cotcper said, it might as well be
presumed that a debtor, where there are assets, intends to be
both just and bountiful. So in Cranmer's case, Salk. 508. it
was decreed by the Lord Harcouri, that a legacy, though it
exceeded the debt, could not be intended as a satisfaction
thereof; and indeed it may be presumed, that if the testator
intended to pay or satisfy a debt, he would certainly have
taken notice of it.

So that upon the whole matter; I decree that this 30,000/.
thus agreed to be laid out in land, shall be taken as land ; that
the land permitted to descend to the heir shall not be deemed
to be in^ or towards, satisfaction of the debt ; consequently,
that the administratrix must invest this 30,000/. in a pur-
chase, and settle it pursuant to the articles. But though these P'^^^ ^ *
have provided that 5/. per cent, shall be paid until a purchase cenc was di-
made; yet it appearing to me that the money has been flowed °^ it
placed in the government funds, which have yielded but 4/. appearing that
per cent,, I think I may with reason and equity moderate the beeiTpiaced in
interest, and peduce it to 4/. per cent, in reirard the adminis- *^* gojera.

. , , * . ™*°' funds,

tratnx has made no more of it. which yielded

bat 41, the
court reduced the interest to it. per cent»

Note ; On an appeal to the Lord Talbot, Paschce, 1735, [ 228 ]
after long debate, his Honour's decree was so far affirmed, as 30,000/. is co-
that the 30,000/. articled to be laid out in land was by his laid out in
Lordship held to be as land ; who moreover agreed, that no **'*^» ^^ ™®"
difference had ever been made, between the cases where the be laid out al-
money was deposited in the hands of a third person to be o^^LrchMe**
laid out, and where it was resting in the hands of the cove- ^»«t if laid out
nantor : but with respect to the freehold lands purchased in jt is snfiicient;
fee simple, in possession, after the covenant, though with but *°^ ^^tor^ar
part of the 30,000/. and left to descend, these were by the having pur-
Lord Chancellor ordered to go as a satisfaction pro tanto ; fan^^^M^h
for that it could not be intended the Lord Lechmere was are left to de-
obliged to lay out all the money together ; nay, it might be wm bca iltis-
doubtftil, whether one entire purchase coidd be met with for ^^^ P"*-
just that sum ; and though his Lordship had covenanted to
lay out the 30,000/. in land, yet he had not covenanted to
lay it out in one purchase, or at one time : but if it was in-

De Term. S. MichaeUs, 1733.

Tested at several times, it would satisfy the covenant,
?• ^^ ^ much as if laid out all together. (1)

(1) Reg. Lib. B. 1734.fol.487. So, Davy$ ▼. Howard, 5 Bro. P. C. 552.
Demcom ▼. SmUk, 3Atk. 323. AUome^* Sawden ▼. Sowden, at the Rolls. Feb, 3,
Gemerai t. Whorwoodj 1 Ves. 540. 1785 ( v). Reg. Lib. B. 1784. fol. 171.

r^) 1 Cox 165. S. C. 1 Bro. C. C. Widmore, ante, 1 vol. 324., and Gartk^
MS. See alto the note to Blandy r. $hore t. ChaUe, 10 Ves. I.

De Term. 8. HiUarii, 1733. «29

TERM. S. HILLARII, 1733.

CHAPLIN t;. CHAPLIN. Case 5S.

Lord

fat this long cause^ among many others^ were the following xalbot.
questiona : — ^The Lady Hanby, the grandmother of Porter 2 Eq. Ca. Ab.
CAopJtit, being seised in fee^ conveyed divers lands to the use 384. pi. 10, IL
and intent that certidn trustees in the deed named should re- cestuy que
ccive and enjoy a rent-chaige of 30/. per annum to them and *^J?2 ^ ^
their heurs, with power to distrain for the said rent, and to
enter and hold the land on non-payment for forty days ; and
then the said rent was to be to the use of Porter Chaplin in
tail male, remainder to the use of the same persons that had
the land in fee. Porter Chaplin, to whom this estate tail was
lunited in the rent, died, leaving issue Sir John Chaplin,
who inter<-married with the plaintiff the Lady Chaplin, and
afterwards died without issue male. Whereupon one ques-
tion was, whether the plaintiff, the Lady Chaplin, was dow-
able of ^is rent of which her husband died seised in tail
male?

And the court held, that supposing this were a rent created [ 330 ]
de novo, the remainder in fee whereof was extinguished by a ^^ » «ntde

' ^ ^ noFO be grant-

limitation of it to those that had the land, such rent being ed in tall,

determined by the death of the husband tenant in tail, and remidnder^^
having no longer any existence, the wife cannot be endowed oFcr, and te-
of that which is not in being : but that it is otherwise where ukea wife and
tenant in tail of land marries and dies without issue, whereby ^**eT\'h^^
that estate-talL is determined ; for the wife in that case shall shaU not be
be endowed notwithstanding, because the land is in being, causeOie'thioff
though the estate tail therein is determined, and the dower is out of which
in some respects a continuance of the estate tail. So if a rent arise, is not
in esse be granted to A^ in tail^ remainder to B.m fee, and ^ ^"V*

2S0 Dt Term. S. HU. 1733.

Chaplin A. marries and dies without, issue, the wife shall be endowed;

v» or if a rent de novo be granted to ^. in tail, remainder to B.

SwiM^rfthe ^^ ^^^ (which has been [A] adjudged a good remainder) and

rent were 2t. marries and dies without issue ; his wife ahall be en-

Sr«rde" **"• dowed.

over. Moreover, the court conceived^ that if such a rent de novo,

oihft rent^mni- ^^ granted in tail without any remainder over, and the tenant

eddenoTo in tail suifers a recovery thereof ; this recovery, though it

remidnder*^ will tum the estate tail into a fee, yet the same will pass but

over lufferB a^ a determinable fee, which must end on the death of the tenant

wUi not [MAS in tail without issue, for the grantor never agreed to charge

only rdctcr"* ^^ ^^ ^^^ further with the rent, and it would be a wrong

minable fee. to the tertenant to burthen his estate with the rent for any

longer time. See 2 Luiw. 1226. (1)

[ 231 ] But it was afterwards disclosed to the court, that the legd

estate of the rent in fee was in trustees, in trust for Porter

Chaplin in tail male ; and that on his dying, the trust of this

estate- tail descended to his only son Sir John Chaplin in taU,

the husband of the plaintiff the Lady Chaplin^ who (inter

aV) brought her bill for her dower of this rent ; and then

the case was no more, than whether the wife of a cestuy que

trust in tail should be endowed ?

Whereupon for the plaintiff were cited, first, the case of
Sweetapple v. Bindon, 2 Vem. 536. where a woman be-
queathed money to be laid out in land, to be settled to the
use of her daughter and her children, and if she died mtbout
issue, to go over. The daughter married the plaintiff, by
whom she had issue : but she and the issue being both dead,
and 'the money not laid out; on a bill brought by the hus-
band, the Lord Cowper decreed the money to be considered
as land, and the plaintiff to be tenant by the curtesy.

Secondly, Otway v. Hudson, 2 Fern. 583. where tenant in

tail of a trust of a copyhold estate, having desired the lord to

admit him, and being refused, and having brought a bill

agunst the trustees to have a surrender made him of the l^al

estate, died. In that case, though the husband was never

seised of the legal estate of the copyhold, yet the widow was

decreed her free bench.

[A] For, though the objection is, that there can be no remainder of tb»t

whereof there is no reversion ; yet the intent of the party gives the rent de novo

first a being for the whole, and then the lesser estates are carved out of it Bj

Holt, Chief Justice, Salk. 577. fVeeks v. Peach.

(1) Harg. Co. Litt. 341. a. note 4. 298. a. note ^

D4 Term. 8. HU. 17S3. 831

Thtrdhfi The case of Fletcher v. RMmmty as cited in Cffipuir
Precedenis in Chancery, 250. where •/. S. falling into some p ^*
trouble for having counterfeited a warrant, conveyed his land
to bis younger son, in trust only to secure it against a for-
feiture ; and afterwards being freed from trouble, conveyed
the premises to his eldest son, and died. The eldest son
died, leaving a widow and no issue, whereupon his widow [ 23S ]
being non-suited at law, brought her bill in equity, and had
a decree for her thirds.

Fourthly, That nothing was more known, than that a
dowresB shall have the benefit of a trust term attendant on
the inheritance against an heir, as appeared from the cases
of The Lady Dudley v. The Lord Dudley, Precedents in
Chancery, 24\. HigfordY.HigfoTd,Pasch€B,VJ\\. Abridge
meat of Cases in Equity, 219. and more particularly from
that of (a) fFray v. Williams. (a) i Vol. 137.

Lastly, It was said to have been agreed and settled, that a
man should be tenant by curtesy of a trust ; and it would not
be pretended that there were less stronger reasons « to be
urged in favour of a dowress.

But after much debate and consideration, the Lord Chan-
cellor was of opinion against the plaintiff in this point ; ob-
serving, ^«/, as to the case of Sweet apple v. Bindon, that it
might be right to allow an husband to be tenant by the cur-
tesy of money to be laid out in land, since money agreed to
be laid out in land is as laud in equity ', where every thing
directed by a will, or agreed by articles to be done, is looked
upon as done. [B]

Secondly, That in the case of Otway v. Hudson, the de-
cree was not made upon a general rule, that every widow of r ^33 1
a cestuy que trust has a right to dower ; but upon the great
and obstinate delay of the trustee, who refused to convey,
and stood out in a bill in this court requiring him so to do.

TTiirdly, That the case cited from Precedents in Chan^
eery, 250, seemed a strange case, and a most extraordinary
trust ; for if the father, the cestuy que trust, should have come
for a performance of that trust, he could never have reco-

[B] This will serve to warrant the resolution of the Master of the Rolls in the
case of Banks v. Sutton, vol. 2. 700. For however that learned argument may
be considered, as tending to proTe in general, that a woman ought to be endowed
of a trust ; jet, in that particular case, the legal estate was by the will of the
donor directed to be conveyed to the cestuy que trust at his age of twenty-one y-
and he living to that age, according to the principle above mentioned, his widow
was well entitled to dower.

Be Term. 8. Hit 1739.

YCfcd; bnt Uie aoa shoold bave held the land dischttged, H
being a firandnlent tnut, made to protect the estate agunst
a forfieitiire. This, probably, was a short note of the case for
the private- use of some gentleman, and can be of service to
no other.

Fourthhf^ That the case of a trust term set up m o^mi-
tion to dower, was nothing like the present ; for there the
judgment is, that the pluntiff in dower shall recover, but
that ces$et execuHo during the term; and if the trusts of such
term are satisfied, and at an end, the term ought not to sub-
sist in equity to stop a favourite right at law, as dower is,
whereas in the case of a trust, there is no judgment at bw,
that the wife shall recover her dower ; for the husband had
no legal estate, nor consequently any thing of which the wife
18 dowable. And in the case of a purchaser, nay, even with
notice, the court would not relieve a dowress against a trust
(«)E^Cft.Ab. term that stood in her way. (a)

S5.' Ca.iB His Lordship took notice, that by the preamble of the sta-

'l^^* ^ tute of uses.(i) it is recited, that by means of these uses the

(h) 27 Hen. 8. % ^_ \

clo. wife was defeated of her dower; by which it appears, that

[ ^^ ] the wife of cesiuy que use was not dowaUe at common law;

and if so, then, as at common law an use was the same as a

trust is now, it follows, that the wife can no more be endowed

of a trust now, than at common law, and before the statute,

she could be endowed of an use; so that here was the opinion

of the whole parliament in the pcHut ; that it had been the

common practice of conveyancers, agreeable hereto, to place

the legal estate in trustees on purpose to prevent dower;

wherefore it would be of the most dangerous consequence to

tities, and throw things into confusion, contrary to former

opinions, and the advice of so many eminent and learned

men, to let in the claim of dower upon trust estates ; that he

Hasfaua may took it to be settied, that the husband should be tenant by

tib/^^^i^ the [C] curtesy of a trust, though the wife could not have

atnirt; though dowcT thereof; for which diversity, as be could see no rea-

havcdovcr ^'^^y ^ neither should he have made it; but since it had

^^^*^^ prevailed, he would not alter it; that there did not appear

to be so much as one single case, where abstracting firom all

other circumstances, it had been determined there should be

dower of a trust. (1) For which reason, his Lordship dis-

[C] So determined by his Lordship in the case of CoMefmm v. Engltth^ about
this time oa an appeal from the Rolls. 1 Ait. 603.

(1) Vide Bank$ v. SuHoHj ante, 2 voL 700.

De Term. S. HU. 1733. 2S4

missed the bill as to such part of it as claimed dower of the Chaplik
trust of this rent. [D] ^ ^*

Another point in this cause was. that Porter Chaplin made _ » ' uu
a mortgage for years, and then intailed the estate mortgaged of lands mort-
on himself, and the heirs male of his body, rebiainder to his 5o5nd'toke«p
brother Thomcis Chaplin^ in * tail male, and died, leaving down the in-
issue one infant son, who suffered the interest tp incur on the nant for life is.
mortgage for several years, and died just before he came of " [ *235 3
age, leaving a personal estate. Whereupon it was objected,
that the executors of the infant son, seeing their testator
took the rents and profits of this estate, ought to keep down
the interest, the rather, for that he never had it in his power
to bar the remainder by a recovery.

Lord Chancellor. There is no precedent of a tenant in tail
being obliged to keep down the interest on a mortgage : a
tenant for life is, without doubt, compellable to do it ; but as
a tenant in tail has an estate, which may last for ever, and
the remainder over is not assets, nor regarded in law ; and as
such tenant in tail has a power over the estate, to commit
any waste or spoil thereon, a court of equity has never en-
joined him to keep down the interest. (2) Wherefore his
Lordship refused to make any order upon the executors of
the tenant in tail, to pay any arrears of interest, though it
appeared there was near twenty years' interest due, and
though in this case, the tenant in tail died during his infancy,
and consequently before it was in his power to have barred
the remainder by a recovery.

[D] Afterwards, in the case of Shepherd v< Sh^herd, heard in Marchj
1735-6, before the Lord Talbot^ the same point coining in question, the Attorney-
General and Mr. Fazakerly^ who were of counsel with the widow, apprehended
It to have been so clearly settled by the above resolution, that they both declined
speaking to it

(2) Vide Ameihury , v- Brown, 1 Vez. 477.(«)
(«) Ware v. Polhilty 11 Ves. ^57. Burget y. Mattbeyy 1 Turn. 167.

«»5 De Term. S. Hil. 1733.

WROTTESLEY v. BENDISH,

On exceptions to the Master^s reports
Case 54.

Lord Chan* Sir Hugh Wrottesley by his marriage settlement secured
cellor to his daughters that he should have by his lady^ in case of
ALBOT. ^^ ^^^^ 8000/. among them, payable at their ages of twenty-

517. pi. 16. ' one, or days of marriage, which should first happen, pro-
[ 236 ] vided, if any of his daughters should, after his d^eath, marry
under her age of twenty-one, and without the consent of her
mother, that then such daughter should forfeit her portion,
which should go over to the other daughters. The father
died, leaving no son, and four daughters.

The defendant Bendish married one of the daughters, and
(as was pretended) without the consent of the mother ;
whereupon the other daughters brought their bill against
the defendant, the married daughter, and her husband, and
thereby among other things they asked the married daughter
whether she married with her mother's consent ?

The defendants did not demur to that part of the bill, but
submitted to answer; and the husband answered even to
some circumstances of the marriage, as that he took it
he was encouraged by the mother in his addresses to the
daughter, and that the mother knew of it ; but the daugh-
ter, his wife, did not answer to the point, whether she did
not marry without her mother's consent : upon which, ex-
ceptions being taken to her answer, the same was reported
insufficient; and now exceptions were taken to the Master's
report, which coming on to be argued.

It was objected that the wife was not bound to answer ; —
for if she did^ yet her answer could not be read against the
husband, nor could she be a witness against him ; wherefore
it was a vain thing to insist upon her answering, when such
answer could not be made use of, after it should be pat in,
being no more to be regarded than the answer of an infant.
Besides, the wife is supposed to be sub poiestate viriy and
not to answer freely.

[ 337 ] To which it was replied, that the same argument might be

De Term. S. Hil. 1733. 237

nade use of against a feme covert's answering any bill, when Wrottes-
made a co-defendant with her husband, which is contrary to ^^^
all rules of practice ; and therefore this objection ought not ]^^^^^^^
to preyail. Moreover, the wife might survive her husband,
in which case her answer might be read against i erself ; and
that this case differed from that of an infant's answering ;
where, it is true, the answer cannot be read against such Aninfant'san-
infant, (and yet it has been sometimes ordered that an infent ^i^en^evl-
should answer, notwithstanding: his infancy.) but the true dence against
reason why the infant a answer is not to be read against him is cot the in-
is, because in reality it is [E] not the answer of the infant, JlJi''ic°*^rd-
but of the guardian, who is swom^ and not the infant ; and ian's, and the
the infant may know nothing of the contents of the answer SJJonMind not
put In tor him by his guardian, or may be of those tender ^^ infant,
years as not to be able to judge of it.

Z^ord Chancellor : I do not now give any opinion whether [ 238 ]
the answer may be read against the wife, when disoovert, or BaronanAfinire
not; but as in all times heretofore the wife, as weU as the ^{x^^^%^^
husband, has been compelled to answer, I would not take must answer,
upon myself to overthrow what has been the constant prac- cannot"" reS

tice. (v) against the

^^' husband, but

may (possibly) be read agunst her, if she surrive.

[E] An infant's answer by his guardian is not evidence against him, because
the infant is not sworn, and it is only for making proper parties. Carthew 79.(«)
And where an infant is defendant, the service of the subpcsna to hear judgment
must be on the guardian, and not on the infant. See vol. 2. 643. Taylor v.
Aittood. But where a defendant puts in an answer to a bill brought by an in-
fant, who does not reply to it, in such case, it seems the answer must be taken
to be true, in regard the defendant, for want of a replication, is deprived of an
opportunity of examining witnesses to prove his answer : and he ought not to
suffer for such omission in the plaintiff. So ruled at the Rolls, with some warmth^
by Sir Joseph Jekyll in the case of Thurston and Dechair^ an infant^ v. NuUon
Sf Ux, Trinity 1733, in which the reporter was of counsel with the plaintiff,
and much opposed the reading of the answer ; for that the plaintiff being an in-
fant, could admit nothing ; and it might be very mischievous, if by reason of the
neglect of the plaintiff, the infant's guardian or prochein amy^ in not putting in
a replication to the answer, such answer should be read, and admitted to be
tme, though never so detrimental to the Infant's inheritance. Idea qiuere. (1)

(1) £t vide contra Legardy. Sheffield^ 2 Atk. 377.

(«) Savage v. Carroll^ 1 Ba. & Be. Ves. 274.

553 ; and exceptions will not lie to an (y) But the wife shall not be cora-

in&nf 8 answer, S^rifc/otcAr V. Par^'^er, pelled to answer a mere bill of disco-

Bonb. 338. Copeland v. Wheehsr^ 4 Very^ Barron v. Grillard, 3 V. & B.

Bro. C. C. 256. Lucas v. Luces^ 13 165.

238

De Term. S. HU. 1733.

Wrotteb-

LET

Benbish.

(a) Salk. 550;
1 Vem. 60y
109, llO.(s)

Bntintliiscaae
the feme not
bound to an-
fwer the bill
■ubjecUng her
to a foifeitorey
though the
husband had
submitted to
answer.

Tlien it was objected, that this answer of the wife tended
t6 make her liable to a forfeiture^ which in (a) no case woald
be assisted in a court of equity ; that bad the defendants,
instead of answering, put in a demurrer, it must have been
allowed ; and it would be very hard to make this mistake so
extremely penal to them.

ZfOrd Chancellor : I should have made no question, if the
defendants had demurred, of allovring (1) the demurrer ; but
they having submitted to answer, and the husband having
answered as to his marriage, that the wife's mother knew of
the courtship, and having fully answered the bill, and the
present exception being to the wife's answer only, I am
somewhat doubtful how to determine. But at lengthy con*
sideling that this bill was to entitle the plaintiflb to a for-
feiture, which word forfeiture was the very word used in the
deed ; and since the wife was in danger of having that forced
from her by the compulsion of a court of equity, which
might occasion the loss of the whole provision made for her;
and all this in the case of a forfeiture, so little favoured in
this court, against which, (2) in many cases, relief is ^ven,
unless where there is a devise over, (as in the present case ;)
and it being a condition which, by the ecclesiastical courts,
is held void in all cases, the rule being there, that (£) mari-
tagium debet esse liberum: under these circumstances his
Lordship said he could not reconcile himself to the compel-
ling a wife to confess that by which she might forfeit all she
had in the world ; and that, though the defendants had not
demurred, as they should have done, yet, the case beiog now

(1) Vide Cftatificey v. Tahourden^ (t) Vide Pe^/on v. Bury^ ante, 2
3 Atk. 392. Chancey v. Fenhouletj vol. 626.
2 Vez. 265. (^)

[239]

(ft) Vol. 2. 528,
531.

(«) Williams v. Farrington, 3 Bro.
C. C. 39. S. C. 2 Cox. 202. Park-
hurst V. Lowteriy 1 Mer. 401. Besides
the case of forfeiture above mentioned,
there are other grounds upon which a
defendant may by answer protect him-
self from making a full answer, namely,
that he might criminate himself, Baker
V. MelUsh, 11 Ves. 73. Rowe v. Teed,
15 Ves. 378. Mant v. Scott j 3 Price
493. Curzoit v. De la Zouch^ 1 Swan.
192. Leonard yr. Leonard, 1 Ba« & Be.
323» That he is a purchaser for a va*

luable consideration without notice,
Jerrard v. Saunders, 2 Ves. Jun. 454.
Rowe v. Teed, ub. sup. Leonard '^^
Leonard, nb. sup., sed fide Ovey t.
Leighton, 2 S. & S. 234. That the
discovery sought is immaterial to the
matter of the suit, jigar v. The Re^
gents Canal Comp. Coop. 212. ; and,
as was holden in Stratjbrd v. Hegan,
2 B9U & Be. 164., that the knowledgi
was acquired in a privileged cfaaitoter.
Of) Lord Uxbridge v. StOoebmdf
1 Ves. Sea. B6.

De Term. 8. HU. 1733.

239

My before him^ it seemed not agreeable to the rules of
equity to make the defendants suffer so much for the mis-
take of their . counsel* Whereupon the exception to the
Master's report was allowed, and the answer held to be suf-
ficient. (3)

Wbottm-

LET

v.
Bendish.

(3) Bat, generally ^ a defendant mast
answer fully, or object to the discovery
hjpka or demurrer^ Cookson v. £//f-
#011, 2 Bro. C. C. 252. Cariwright v.
Hatefyy 3 Bro. C. C. 238, and 1 Ves.

Jan. 292. Shepherd y» Roberts^ 3 Bro.
C. C. 239. Hall y. Noyes, 3 Bro. C. C.
483. Selby v. <Stf%, 4 Bro. C C.
ll.(«)

(«) Jacobs V. Goodman, 2 Cox 282.
Jerrard ▼• Saunders, ub. sup. Marquis
of Donegal t. Stewart, 3 Yes. 446.
Phelips v. Coney, 4 Ves. 107. TViy-
for ▼• Milner, 11 Ves. 41. Bolder v.
▼. Irord Huntingfield, 11 Ves. 283.
Faulder v. Auarl, 1 1 Ves. 296. Shaw
T. Ching, 1 1 Ves. 303. jRove y. Tee</,
ub. sup. Somerville y.Mackay, 16 Ves.
387. if^ar v. Me Regenfs Canal Comp.
ub. sap. Leonard v. Leonard, ub. sup.
Mazarredo t. Maitland, 3 Mad. 70.

V. Harrison, 4 Mad. 262.# T^of^^tf

y. Macaulay, 5 Mad. 231.; but the
practice in the Court of Exchequer dif-

fers from that established in Chancery
by the above CASes, for in that Coart
the answer of a defendant may be sap-
ported against exceptions if the matter
of exception would have been good
ground of demurrer, or might have
been made avaiUble by plea. Richard^
son V. Hulbert, 1 Anst 65. Selby v.
Selby, 4 Bro. C. C. 11. The reason of
this difference is, that exceptions are in
the Exchequer brought before the Court
itself in the first instance, instead of
being referred to a Master. Rowe ▼•
Teed, ub. sup. Agar v. The Regenfs
Canal Comp* ub. sup.

SELLON V. LEWEN. ^ ,,

Case 55.

Thjb plidntiff brought his bill against JB., who pleaded to the Lord
whole bill ; and the court, on arguing the plea, saved the Chancellor

I AT SOT

benefit thereof, ordering that it should stand for an answer ; '

but it was not said, one way or other, whether the plaintiff 75. pi. 31.
should have liberty to except. ^LuTurfhT*

whole bUl;aDdy
on urgmag the plea, it was ordered to atand for an answer, without aayxng one way or other,
whether the plaintiff might except ; the plaintiff cannot except, for that the court, in saying
that the plea ahaU stand for an answer, must be intended to have meant a sufficieilt answer ;
an inanfficient answer being as none.

After this, the plaintiff put in exceptions to the answer,
supposing the plea to be now as an answer ; and that the
court, in saying it should stand for an answer, must have
intended a common answer. But the defendant moved to
discharge the exceptions, as irregular, insisting that tho

vox,. III, o

8S9 Dt Tern. & HH. nSS.

6eu*tHl pbdatiff can in no such caire eaocept to the aikswer, tiidtSB

Lewen **"" " ^""P^^ ^^'^^ givm faito so to do J or linksB, (as in
sotte oaaea) it is Baid^ aa to such part cf it, as ia nat matter
of accomtt.

[ 240 ] On the other side it was objected, that of course HnA pkia-

t^has liberty to 'except, unless where the tjourt docs by
0[pt6BB words tkke it from him } ftnd that in the present cose
it would be ft great hardship on the plaintiff, !f he might not
liave the benefit of a discovery from the defendant.

The Lord Chancellor, doubting as to the practice, ordered
precedents to be looked into, and that the register should
satisfy the court what had been the course in such cases, and
tiiat it should hk moved agaiuv

Accordingly this matter "mis moved the first day of next
term, when, on producing precedents^ the Lord Chaneellor
held, that when the court orders that the plea shall stand for
an answer^ without saying more, it must be intended (1) a
6Ufflcient answer, an insufficient answer being as no answer.
Wherefore this being taken to be a sufficient answer, and no
express liberty to except, tlie Ordter to refer the eKdepticms,
and the exceptions themselves, were discharged. (2)
I » — — — — - — ~

(1) Coke V. Wilcock^y Mos» 74. (2) Out with liberty for the plaintiff
Maitland v. Wilson^ 3 Atk. 815. to re-nrguc the plea. Reg. Lib. B. 1733.

fol. 130.

Q^^ 55. MARTIN t^. KERRIDGE.

Lord Martin had recovered a decree for 1300/. against the de-
Chancellor fendant Kerridge; and had sued out an attachment, relum-
V *9A\ \ ^^^ ^^ term, against him, and on nofi est inventus re-
In Chancery tumed> took out an attachment against him, returnable next
nbt 6aly the term. On which * attachment the defendant being taken,
defendant but turned himself over to the Fleet; and the next day (being
aiw hk Unds the first seal after Hilary tettn) upon a certiflbate of the

ana nods, are ^ i* < ^i , * • . i •■

lWd« to a Be* warden of the Fleet, that he was a prisoner there, the matter

questration :

but DO seauestration lies tiU the time for the return of the attachment ia out, on which the

body was taken, (jr)

attaBBBsaaaaBBfittSBBttsaB

(x) After the retam of cepi corpus qaestratian iBiue^« Miies ▼. Lingkami

to an attachment for want of appear- 7 Yes. 230t Holm€ v. Cardvmllj 3

ance, a messenger must go before se- Mad. 114.

iklTem.s.Ma.n^. leli

V^^ h^in moved, the Lord ChandeOo^ ^aia^M k ^qties- Ma^r-Hn
tttUM^ "aAd IMfi order #aa ^^Wn utK and the s^uestration ^ ^'

jlk^xt dctel ! M^red the tomt t6 &^:&t^ge 'tiie order for

tbi JMJijfiesftatibn, for «iat the altachment on which the de-

ftAdaftl wlMi taken into custody was itot k^turhalble until the

hext Wfin, all which time the defendant had to pay the

money ; and it is a iriost transcendent poWer exercised by

ttte iidtit of chancery, beyond what the cbnJikLon law allows,

that the plidntiff in this court shall take the body, and while

VHA is in e&ecutibn, iieixe the land also ; but that still this

inAst be^ when the ^defendant lies obstinately in prison, and

)l^frdA hifi estate thei^ without paying any dF his debts, under

iAAtlBL drcumstances it might be i^asonable the plaintiff

shottM have a sequestration ; whereas ih the present case it

dli hot appeal* before the return of the wril^ whether the de-

ibndaiit trould 'Or would nbt pay the money, and he had that

tim6 'tto ifedeetti hife person,

Ldrd i)hancettor. Until the retuTu 6f the writ-, it is quite
lihdetttdn Vrhettier the defendant will pay the teoney or no j
and though it may be Heasohabte, where the court finds that thata seques-
a pri^oAei: obstinately corttinues fn pK^(*, thert spending [^'^^''cjj^'*^*
hb c^ihkte which ^hoiild go towards satisfaction of his debts, one taken into
though it teay, ! say, in that case be but just to let his ere- pro^w of ^
iSiJOtn have such festatie 5 yet this practice ^ith regard to the chancery, con-
sequestration, as it ifl in its nature somewhat extraordinary, son without
©light h<yt to b^ letterided ; for whicii reai8on, On debate of J^JJ^s^ ^^
the itaatter and hearing counsel on both rides, the order for r 242 ]
the te^^efitifation was discharged, (a)

f tf) See 1 Chto-. Csi. ^1. Hifde v. PetU^ bf the rl!te HclA progress of sequestra-

BUCK ». FAWGETT. Case 57.

Upon a bill brought in equity, the plaintiff and defendant Lord
entered into an agreement, which was signed by the parties Chancellor
or their clerks in court, and afterwards by consent made an .

"^ An agreement

was signed by the ]>artie8, and by consent made an order of conrt, to submit t^ such decree as
the court should make^ and neither party to bring an appeal ; yet the cause allowed to be
reheard.

243 De Term. S. Hil 1733.

Buck order of court, '^ That both parties would submit to such de^
V ^\ '^ ^^^^ ^ ^^^ court should make in this cause, provided it
<' should be on the merits, and not on any mistake in the
'' pleadings ; and that neither party should bring an appeal."
The cause was heard, and a decree /made. Whereupon the
party against whom the decree was, petitioned for a rehear-
ing, which being signed by counsel, a rehearing was ordered
by the Lord Kingj who made the decree.

And this day a motion was made to discharge the order
for a rehearing, seeing the party petitioning for it had en-
tered into an order by consent to submit to the decree, and
not to appeal ; that though an appeal is a matter of right, yet
H is equally a matter of right, that the party should have it
in his power to give up such liberty of appealing, and, if he
thinks fit, to debar himself thereof; that as he might release
errors at law, so. might he also release errors in equity. Nay,
it was the usual terms for an injunction, that the party should
bring no writ of error; that it was as reasonable one should
bind himself frokn rehearing, as from appealing ; that this was
[ 243 ] in effect submitting to an arbitration, and that the award of
the arbitrators should be final and binding ; add was more
particularly proper in the principal case, where the decree
was to sell a mortgaged estate, which, by the delay of rehear-
ing, might happen to be eaten up with interest; and the
agreement being the voluntary act of the parties, ought to be
binding.

Ixn'd Chancellor. This order is of a very singular nature ;
insomuch that had the agreement been disclosed to the court,
I hardly believe such order would have been made. Until a
decree is signed and enrolled, all matters are open ; and if
there be any error in the decree, it is fitting the court should
have an opportunity of amending it*; which is still more rea-
sonable in the principal case, as my predecessor, who heard
the cause, has ordered a rehearing, and thereby shewn he
was not satisfied with the decree. Let the order stand for a
rehearing, (or)

(«) Bomker v. Hunter^ 2 Dick. 611.

De Term. S. HU. 1733,

243

JONES V. THOMAS.

Case 58.

In a plea of a purchase^ the defendant, in his denial of notice. Lord
denied that at the time of making his purchase, and paying ChaDcellor
his purchase money, he had any notice of the plaintiff's ^^ '

..., Q ^ In a plea of a

title. Sec. purchase It Isa

The Attorney General objected, that this was not a good ""jjof "*tf^
denial of notice, for it might be, he had notice given him to la^, that at
before, though he had no notice at the very time of the jnir- Jj* JSreluIae
chase; and in such case, the defendant might forget the no- he had no no-
tice, and would not be liable to a conviction of peijury, if it uyingt or at
should appear he had notice only before. Besides, the usual J»y ti»« '^
way of pleading is, that the defendant had no notice at, or [ 244 ]
any time before, the making of the purchase.

Lord Chancellor. Notice before, is notice at the time of
the purchase, and the party will in such case, on its being
made app^ that he had notice before, be liable to be con-
victed of peijury. Wherefore the plea is well enough, not-
withstanding this exception. [F]

[F] In allcaies of a plea of a purchase, or marriage settlement, notice must
be denied, though not charged by the bill ; and it may be sufficient to deny it
either br the plea or answer, notwithstanding the objection that it ought to be
in the plea, since all the defendant has to do is, to prove his plea ; for the de-
fendant is not to prove (1) a negative, viz* that he had no notice. However, it
seems best to deny notice both In the plea and answer. By the Lord Parker,
Aston ▼. Curzon, HiL 1719 : the same point determined by the Lord King, in
the case of Weston v. Berkeley, 17 July, 1729<(2)

(1) As to negative pleas, vide New*
man y. WalUs, 3 Bro. C. C. 143. Hall
V. Noyes, 3 Bro. C C. 480.(«)

(2) Et vide Meadows v* Duchess of

Kingston, Mitt Plead. 3d ed. 223.
Daoie v. Chester, ibid. Hoare y.
Parker, ibid.(^)

. (x) Negative pleas are now held to
be good, Plummer v. May, 1 Vez.
Sen. 426. Gunn v. Prior, 2 Dick. 657.
S. C. 1 Cox 197. Jones v. Davis, 16
Veg, 262. HUchins v. Lander^ Coop.
34. Drew ?. Drew, 2 V. & B. 159*
Chamberlain v. Agar, 2 V. & B. 259.
Evans v. Harris, 9, V. & B. 361. Ar-
miiage t. JVadsworth, 1 Mad. 189.
Barker t. Ray, 5 Mad. 64. Sanders
T. King J 0 Mad. 61. Yorks v. Fry, 6
Mad. 05. Earl of Strathmore v.

Countess of Strathmore, 2 J. & W.
541. Hook V. Dorman, 1 S. & S. 227.
Warrington v. Mothersiil, 7 Price
666. Thring v. Edgar, 2 S. & S.
274.

(y) S. C. 1 Cox 224. Coke v. WiU
cocks, Mos. 73. Pope v. Bish, 1 Anst.
59. Edmundson v. Hartley, 1 Anst.
97. Bayley v. Adams, 6 Ves. 586;
Evans v. Harris, nb. sup. Cork v.
Wikocky 5 Mad. 328.

4I& nnf 1)nta^ /»4WoA«, 1 73^.

TERM. PASCHiG,

C^ia. GHAPUN V. CHAf«N.

[See. a fr^ncA ^ f Au Cincie*, anjte, i}29.}

Lord PoRTBR Chapljn^ on his iparria^ with ^im Shf^i^w^f ^f

Chancellor lease q^d rdeaa^ dat^4 ^^ 13th, a^d litix of /u^ IJOZ^t

Talbot, settled his estate ia Lincoffishire^ to lihe 1199 q{ hfm^U for

220?"pK6.^^* ^if®> remainder as to part to ^ vife fpx Ufe> i;ei^#wft^| t(3t

650. pi. 32. the first, &c. son of the marriage in tail male, remain4.er to

liieQi a usrm, trustees for 5Q0 yea^ in tFU3t^ that if the sfgid, JPqnter

JSiittr^^^' f^^oplin ^hoqld haY^ i;io issne m^ by tj\e m^rri^i^ or

poftiooa»(yb.) should have issue nude that should die withcHi;! issue laale

a^pro^^that before their age of twenty-one ; then Ae trustees should raise

^*d«?o**''^*u ^^fi^^* ^^^ ^® daughters of the maraage^ payable? at
should give or eighteen or majrripge. In whjch said settlei^ent^ l^eve was &
UXoJmH^ proviso, that if Porier Chaplin should, by deed or w^J^, g;ive
his said dangh- or bequeath ai^ty sunv of i]pM[>ney to hi^s dimghte^ wbijoh
be a'aatisiac- should be actuiUly p^4 to them }, th^B suoh money, iS equal,
^n. The im- ghould be a satis&ction, if not equal, that it^shonldgo
land to the towards satisfaction of their portions ; unless the said Porter
thi» vaiu7of Chaplin should by deed or wiH declare the contrary; with
10,000/. thh remainder to himself it^ fee.

so MtlUfiCr

^. Subsequent tq the marriage, th^ said Por^ Cl^p^

*^M ] charged the said tern of 500 years with additional portions

of 10,000/. to daughters, if no soq ; but subject to the same

trusts and proviso^ as thje former portions wece si^<;ured to. hiiS^

sa^id daugbtecsp

AfteFwards' Jointer Cha^^Km having Aree deaighterd «pd
one infant son by this marriage, did by hi$ voU, un l^iB, 4^^

He Term. P«cA<f> 1731.

S4e

rise lands of 20QI« par ontitim to hia unde Sir George Gsijnuv

TharoU ia fee, in trust far his tbfee daughters wd their ^ ^"^

heira equally^ leavii^ it entirely tot hia add traatee to aeH

aind dispose of the pf emiaes^ or otherwise to order or manage

th& saoie^ aa he shouVi think moat for the bene&t uad adr

vantage of hia said tkree daughters^ to whom. bQ gave a la^

gacjr of 1 900/. together with the i;e8idiie of hm peraonal

estates Porter Chaplin dbd, leaving issue tibia infant aen

and tiieae three daughters. The son married^ and died about

the age of twenty yeara^ leavings his wife jrrJramsni «finas(^

which proved a daughter, so that he died wiihomt iaaue male^

whereby the daughters became entitled to this 20fi00t

ehai^d upon the land. Soon after the death of Porter

Cia^m^ there was a decree fbr tiie sale of the lands demed

bx the payment of the teakator'a debts and legaiuea.

It wan admitted, that the l^cy of IQQOI. and the auiplw
eC the personal estate, whenever it was paid to Ibe tkiee
daughters, shield go towards satiafiaction of the 10>Q0Q<p,
»ad )€^O0M. portiona so seccned to them aa aforesaid ; but
it was uaoreovor avgued that the 3D0r. j»ar tmnum in land
dav^ftd to SJr Ckarge Thorabt, in trust for the said three
dai^ilers> aa it was money's worthy and might the very next
day after the tastator's death be turned inlo money, waa
wkihip tbe meamn|p q£ the psoviso, which intended only thai
tbQ dMi^Uber s abould bo advanced with portions among them
amounting to 20,000/.; and that this was the stronger, sknoo
the di^eree obtmed lor the safe of tfaa laopid, wheoeby the
samA wna> at least ift equity, turned into n»mey.

l^uHi Ckmaelhr. This, pmviao seema to be little mem
4ba» w4i»tk is implied > for when on. a monsiagc^ a portion is
fiscwed- to ft child out of land^ and the parent i^ves the dhiltl
a portion [in money] equal to what is so secured, it sbaU; iejt
implication be a satisfaction ; and if not equal, yet a satis-
faction pro tanto. But here the father has limited himself^
and ascertained the satisfaction, {viz.) that it shall be money,
money CKtuully paid; and when the same man, that haa
restrained the satis£Eu;tion to money, gives land in trust for
his daughters ; this can no more be said to be money, than Money and
money can be termed land, (a) which is a/tent generis, and JfJue^ai^rent

channel^ and therefore the one not to be taken in satififaction for the other.

[«47]

(a) See particalarlj the case of Eastwood v. Vinckf % Vol. 616. the opinion
of the Master of the Rolls express to this purpose.

247

De Term. Paschxe, 1734.

CHiPuir goes in qtrite a different channel : for instance, the money
^ ^' would go to the daughters' husbands, but the land to their
heirs. Suppose there had not been any such proviso in the
settlement, then the land given to or in trust for the daugh-
ters, would have been no satisfaction ; and if so, the proviso
makes still stronger against such construction, in that it ex-
pressly confines the satisfaction to money, and particularly
declares what shall be a satisfiiction, which implies a n^a*
tive, {viz.) that nothing else shall. So if the testator had
bequeathed a term of years, or some goods to his daughters,
these should not have gone towards satisfiEUiiion of the
[ 248 ] 20,000/. Neither indll the decree for the sale alter the case;
for if this be to be looked upon as a satisfaction, it must have
been so at the time of the death of the testator, or not at all.
Now, at that time, this being land devised, could not have
been so taken ; and if the trustee, who by the wUl is di-
rected to act in every thing for the benefit and advantage of
the daughters, should, by turning the land into money, make
that a satisfaction which otherwise .would not have been so,
such a proceeding in a trustee would be acting the very
reverse of what the testator directs, and a manifest breach
of trust. Besides, the coming into such an interpretation of
wills would create the greatest confusion, by {^ving a
latitude and power to a Judge to make a new will, and
would introduce the utmost uncertunty in the construction
thereof.

Wherefore the Lord Chancellor with great clearness de-
termined, that the land devised by Porter Chaplin, in trust
for the daughters, should not be construed to go towards sa-
tisfaction of the 10,000/. and 10,000/. portions, or either of
them, secured to the said daughters by either of the settle-
ments.

De Term. PascJuB, 1734, S4©

ROBINSON V. PETT.

Case 00.

On 091 Appeal from a Decree at the Rolls. , ^

■ Chancellor

Talbot.
Thb queBtion was> whether an executor that had renounced, 2 Eq.Ca. Ab.

but had yet been assisting in the trust, according to the 4^« pi* ^0*

request of the testator, should have any additional considera- '^^^^ ^

tion, when he had an express legacy for such his assistance ? executor or

trnstee for hb
Ume and trouble, especUliy wbere tbere is an express legacy for bis mdns, &c. neitber wiU
it alter tbe case, tbat tbe executor renounces, and yet is assisting to tbe executorsbip ; nor
even tbougb it appears, that the executor has deserved more, and benefited the trusty to the
prejudice of his own lUTairs.

Robert Pett, a considerable draper and mercer at AspalU
stonehamy in Suffblky made his will in' October^ I7IO,
whereby he devised the, surplus of his real and personal
estate to his grandchildren, and appointed the defendant
Petty who had been first his servant, and afterwards his
journeyman, together with one Larkiriy executors, giving to
each of his executors 100/. for their trouble about the exe-
cution of their trust, and directing, that if the defendant
Larkin should refuse the executorship, he should lose his
legacy ; but if the defendant Pett should refuse to take on
him the executorship, yet that he should have this 100/,
paid him, provided he would be aiding and assisting in the
management and execution of the trust. Larkin only
proved the will, and the defendant Pett renounced the exe*
cutorship.

On a bill brought by the plaintiffs, the grandchildren^
against the executors, for an account of the personal estate,
the defendant Pett was allowed bis 100/. legacy : but he
likewise insisted to have 400/. more for his extraordinary
pains, trouble, and expense of time in and about the affidrs of [ 350 ]
the testator, particularly for having made up some very in-
tricate accounts, and got in some desperate debts ; and there
was some proof, that the defendant Pett had greatly benefited
the testator's estate, and prejudiced his own, (he himself
being a mercer) and that he had neglected his own trade,
and lost some customers^ while he was looking alter the
concerns of his testator.

tlQ D4 Tern. P^ch0, \7H.

Robinson This cause was first heard before the Master of the RoUs^
^' Sir Joseph Jekylly who declared it to be a role so settled, that
^^^' a trustee, or executor in trust, should not have any allow-
ance for his care and trouble, unless there were some parti-
cular words in the wiU (1) fo^ that puvpose, that he could
not break into it ; and that there was the less occasion to do
BO in the present case, as the testator had here given the de -
fendant an express legacy of 100/. for his care and trouble ;
so that the testator himself had set an estimate and value
upoA it of lOCK, wUbch. wiAe. (be, def^udwt 1^ accepted^ tb^
QQurt cQi^d not incr^q^e..

FrQ«n tbU 4i^cxe9 tl?^i:e wa» aa appeal to. ih^ X^xjli, Omxr
oeUor* before whom it; w^s^ ijw>lted by the AtAocn^ m^ Sqk
licitor-General, (who had bgth tjigned tbe petitiop, of apj^eal)
ttis^t tbe de^Badaut P^M bstviog Kaouneed th^ e^ecutcrthip^
0 and the other executor only having proved thQ will) the de.-^
fQudaut Pett wa» asi a st^rangev^j^ i^^ qi i;eg9f4 b^ upp^nced
t^ b^ve don^ tbef^ €|liu^epjt. sej^vi^^s t<^ ^ e^t^, m mM«bt
tjfqi bi& Q^^ pcej|udic^ he w^ ^ijbl^ to % §Hm^Hm m^f «<^
iu tjtie mf^^ H^aii^ei? <^ if b^^ ba4 not b«ea an Qsecutpr:^ sa
tbait this, wa^ out of tbe coi^moii qqa^, mi tQ b^ ^iwidff^di
1^ if tibe defendant had been employed i» tht natuie oS %

[ 251 ] ^gjJlijpr, ^c^ for whiqb rea^cm it was priLye4» ^bat the Ma^tMr

mi^bt be directed to have regard to, ^d. ^^itk^ apnif^ i^Uow-*

anqe. ioM, tbe greal ti;ouhl9 an4 s^c«49s{||lr p«ijna takc^ l^y th^

4efendwt, in rela,tiQii. tQ th^ ^ffairi^ of tbQ t«a^^]%

X^ord CkcmceUofs It is aa egtabUsbed riUc^ [A] (2) that a,

[A] An execalor iq trust, whabad d» Wgacy, aad where the execqtio* eftlie.
trust was likel}» tf^ he atteodedt nfittb ^^rouble) sit fivst vefus^j,. b«t aflerwaidtPi
agreed with the residuarj^ legatees, ii} c^sidevatioa of IQO' gUiQi'MS]^ to. act ia the
executorship, and he dying before the execution of the trust was completed, his
executors brought a bill to be allowed these 100 guineas out of the trust money
in their hands^ iaftstiiig, tb^ttbo re^iidmijn legatees might ^ well aiak»a con-
tract with the executor touching tb^ surj^lM^ (whi^b was thek aw» pva^ert^) ai^
the testator himself; and that no harip coujd thereby happen U^ the trust estate.
But the court said, aH bargains of this kind ought to be discouraged 9 4S tending
to eat up the t^naa/^i and Keve the executor had died before he had finished the

■^^gg^^l M^^'lli 'in '11^ wi'mywj *i*mt <■■ »»ii

(1) Vide EUmP^ V, Aire^y ) Ym, (9) Sv^ Sr€aiierg0od m. H^rrisom^

115. Mos.l28.(dP>

(x) Burden y. Burden^ 1 Y* apd 1^ qoHunission upon bis paymeots% Chei*

170. lfar«Aa//v. /fo/ibzp0y, 2Swao. thorn v. Lord Audlejf, 4 Ves. 7%;

432. Brocksopp v. Barnes^ 5 Mad. otherwise if he has a legacy. Fteeman

90. : but an eioQcutM ia Indian no le« v.. EuirUey 3 Mwr. 34*
gacy being given to him, is entitled to

]^ Tern. Ptt^ci^^ n^*. tSd

trustee^ executor, or administrator, shall have no allowance Robinsox

for his care and trouble : the reason of which seems to be. ^ ^'

Pett
for that on these pretences, if allowed, the trust estate might

be loaded, and rendered of little value. Besides, the great
difficulty there might be in settling and adjusting the quantum
of'such allowance, espedallj;^ a» ene mai>^» ti»e may be more
valuable than that of another f and there can be no hardship ^y^^^ |^^
in this respect upon any trustee, who may choose whether he air^.twote^cqn-
MflU ajC(?^pt. tih^ tim^,, qr rifft. The 4^endmt^^ rwqiV\«Wg IcSI^a^w!^^
tjhe, ^e(BuWTs]% ift npt, i^^terirt, beca^t^ \k^ i^ ptift ^tV (l> lfc» jj^rty to'Lcepi
V(?rty^ wJiei^Te^ Ve^ p\WI«Jii Uh «kQc^pt, ^f 1^^ e:y,ecut^ml^ : of the exepu-
Qtjienwe, if bp* th^ wecijiUw )i94 wwiu^4 «r>A *« W- Iw^^o A^*!
^wgr- Iwl. ^be«e^po^l. gr^Md a4«|iiwtR&^P*. Mi tf. tto nounce ^
v^fo tQ n^e wy da^f ence„ i(. tit^i^ h^ a«i Wt. pwptip^* by ^aSi; Sc
e3?^ci*M t^ g;^t then^vea wt of t)ii» rrfe^t ^M* I tfkj^ ^ y2S d^c^ft!^
1^ ^ rf^Bpo^le ^ni^^ 9pA tp have loQg p^V/«4l^*. ftftt. fUf -r the dvUhm^
ii^i i^V th^ pres^ c^e, tbe.^eqti*tor hw byhfei^ e^^., S|Xt'^>,^
pr^iisly #!ec^d wihat, sfej^nid b? ^, (^f^n^anV^ WQQiPp«C0 nuncJation;
foi; his trouble, 19 casp^ <rf hi3 refi^stog^ tlnfe€««Qmet$hip,(t^) thou^oni^ijy
tfc^t t^ stijl e^QuL^. bj^ve U^ IW ^ega^^ tP wWWi.1 o«ft pe;^Jp^^/'«
ii^«i, n^ ^di^lqo.. J^QVeveiji it bwg a kwd «aM^ kk th© 9iee s^. 3*21,
defendant take back the deposit. (2) ^Lordte*

affairs of the trust : wherefore the plahitifif's demand was. disallowed. Gould Tk
Fk^twQ^d^ Mich. 1799, at the Rolk. And it seems to be owing to th^ jealous j,
nWi^ % <i9mi of equily ei)(erta,kis oi an ^x^eonAoir on Icuatee, thaii if thej^ com-
poi^qc} dieb.t.3 OT. iQortf a^ea, aq4 bno^ t^henk in fp^ les$ tlvw isf 4uci thereon, they
shall not take the benefit of it themselves, but pib^r credito/s, 94^, legatees shall
have the advantage of it, and for want of them, the benefit shall ^o to the party
Mibo is etttitted ^0. Ihe. surplus y whaMas, if od» who %^ fbr himself, and is not
ift tV®: cJ^EComstai^f of an e^i^ecvAor or tfi|stee^ Iwys. ip i|. OKMrtga^e ft>r less than is
4ue, or for less^han it is i^orth, he shall be allowed 9)i tb^t is 4iMe thereon. See jy^
Sali.' 155. Thus in the case of Baldzcin y. J^flfii^ter^ Ivea^d at the Rolls, *
AuoAtfv, 171% The ease was, a mortgagor in fee died, and the mortgagee^'
bought in the mortgagor's wife's right of dawea^ Decreed,, that tike heir of the ^<»^'^'^^y
inprt^agor, ou ^is. bringing a bill to, redeem shpuUt hi^v« th^ benefit thereof, on ^f/^
thi? principle,, that the mortgagee is but a trustee fpr the n^ortg^gor after his ''^♦^-^^♦^^.•-•-^
money paid. So in the case of Foweltv. Glover^ Mich, 1721, at the ^<^^^h ^^f^^ju^^
W)hero.a guqjndian componaded debts, decreed it should be for the benefit of the^. ^ li^"

(1) So, 4rmld'9. Blen^oxpe^ at the p^ars, the IVf aster of ther^'OH^ db^cted
Hqtls, Jan. 31,, 17^8. (v) Et vide generally,^ th^t aUpqirtiea^ should have
The King y. Simpson^ 9 mirr* 140^. just allowances ; and 09 appeal by the de*

(2) Reg. Lib. B. 1732. fol. 322., fendani Petty this decree was affirmed,
a^4 Xl^^% i^ ^99fi ^i m^cik M. apn bptibapartLcvkir^ranaoien is not stated.

ipaMBgaaui ■ m auu luii^
(if'XlCtox42«.

I •

252 De Term. PoBcha, 1734;

Case 61. _ STONEHOUSE, ESQ, et Ux' v. SIR JOHN

Sir Joseph EVELYN.

•Jektll,

Master of

i^^c^Ab* '^^^ ^^y ff^yche, seised in fee of a rent-cliarge of 38/. 16*.
567. pi. 19. ' per attnum, by her will devised this rent-charge to Hunruu
wntcSS * Daftow, Esq. (late Lord Chief Baron of the Exchequer in
to be sold to Irelandj) and his heirs, intrust to pay several sums to seve-
Mol2^/to »1 annuitants for their lives, and after their death to pay
SM/^Mdif the 300/. to the plwntiffs, 300/. toi?., and 200/. to C; and if the
■houid sell for Said rent-charge should sell for 1000/.^ then the testatrix
talSw ' \e^ ^^^^ ^^^^ ^^^ ^^^ making her will) gave the further legacy
further imcy of 100/. to B. and * 100/. to C All the annuitants were
^^cw"" dead, the last of whom died the 24ih of March, 1732; and
sells for Aove the Lord Chief Baron Dalton, the trustee, was dead, having
than 1000/., left an infant son and heir. The plaintiffs brought this bill
th^SM "ihil *® compel a sale of the rent-charge, and to be paid then: 300/.

belong to the and interest.

• • ^^

■idting truBt. Upon opening the pleadings, the Master of the Rolls
[ *353 ] started this question : suppose the rent-charge should sell
for above 800/. and less than 1000/., which, probably, may
be the case, — ^who will be entitled to the surplus beyond
800/. ? To which it was answered by the counsel, that in
the case supposed, as the heir was disinherited, and the other
legatees had no pretence to claim more than the legacies, the
monies produced by the sale, which would exceed 800/. and
fall short of 1000/., ought to be distributed in proportidn to
the legatees A and C.

Cur' : Nothing appears to be sud in the will to that pur-

* . pose ; so that to admit such construction, would be to make

a new will. Wherefore, as to all the monies arising from the

estate devised to be sold, and not disposed of by the tes-

(a) See Cruse tatrix, there must be a resulting trust for the (a) heir; con-

«^Btfley,ante, seouently, if the rent-charge be sold for above 800/. and

under 1000/., all the monies exceeding the 800/. must be paid

to the heir at law.

In the next place it was insisted, that whereas these le-
a) See Max- gacies were given out of a fond that yielded an (&) annual
J^^wet- profit, namely, thia rent-charge, the legacies ought to cany

26. ' *

De Term. Pa$chte, 1734.

853

bterest from the death of the mrviviog annuitant, who died Stohxroosk
on the 24th of March, 1732. „ "•

Cur^ : The legacies ought to carry mterest from that time : r ^54 ]
but then it must be only in proportion to what the rent- a legacy out
charge brings in, not more ; and if there be a surplus beyond ^ * ^''u^
the interest, that must go to the heir at law. And wiUi re- cany interest,
gard to the heir at law of the trustee, who is an infiuit, he
being but a bare trustee, is to convey according to the late
statute of 7 -^nne, cap. 29. (1)

Lastly, in proving this will (it being, a will disposing of a
real estate) the proof was full, that the three subscribing wit-
nesses did subscribe their names in the presence of the tes- where the tea-
tatrix : but one of them said, he did not see the testatrix {^ ^^^
sign, but that she owned, at the same time the witnessjes the witDcsses,.
subscribed, that the name signed to the will was her own JheVi^Un'Se
handwriting ; which his Honour held, without all doubt, to teBUtor's pro-
be sufficient, (x) And I, having the same day occasion to isgood,thouf(h
speak with Mr. Justice Fortescue Aland, mentioned this, to .!5* j!^"^^.

* ^ ^ ^ nesset did not

him, who said, it was the common practice, and that he had see the tesu-
twice or thrice ruled it so upon evidence on the circuit ; and ^\\\^
that it is~ sufficient, if one of the three subscribing witnesses {y)
swears the testator acknowledged the signing to be his own
handwriting. And it is remarkable, that the statute of frauds
does not say, the testator shall sign his will in the presence
of three witnesses, but requires these three things : — First ,
That the will should be in writing; 2c//y, That it should be
signed by the testator ; and, 3c^/y, That it should be sub*
scribed by three witnesses in the presence of the testator. (2)

(1) Reg. Lib. B. 1733. foL 168.
(2) Vide Longford y. Eyre^ ante, 1 toI. 741.

(x) ElUi V. Smithy 1 Yes. Juq. 11.
Ad^ y. Grixy 8 Yes. 504. Westbeech
V. Kennedy, 1 Y. & B. 362.

( jf) At law, a will may be read on
proof by one witness, on the supposi-
tion that there are two others, who
conld be allowed to give the same tes-
timony : Holiffait v. Dowsing^ 2 Stra.
1264.: bnt equity requires all the three

witnesses to be examined ; Ogler.Cooky
1 Vez. Sen. 177. Townsend v. Ivei,
1 Wils. 216. Booth y. Alundell, 19
Yes. 494. S. C. Coop. 1 36. Wood v.
Stone, 8 Price 613.; except in cas^s of
insanity, or absence abroad, Lord Car"
rington v. Payne, 5 Yes. 411. Bemeit
y. Taylor, 9 Yes. 381. Bootle v.
Blundell, 19 Yes. 505.

IS!i

A« YVHh. Pa'Bchit, 17*1.

GIBdS V. C6LE.

J% S\ bad a patent granted to iiiiii by <^6 Crown^ for the
Bok printing and celling a book of architeetunei intituled,
Gibbs's Designs. Upon filing tbe bill^ the plaintiff the pa-
tentee of this Yiew book^ obtained an injunction against die
defendant^ who bcKl printed Uie m,me$ and on coming in of

tkumok^f'k ^^^^^^^^9 ^^ being moved to dis^lve the injunction, af-
M%f«i^efitt6ii, fidavite were allowed (IJ to be read^ in order to sufbort the

b)r Meht, ^ stnall variatioii of the inveaiion will not entitle another to break in npon theft-
ttirt. ^ Tn tlic dase of'a grant of the 8ol6 ^ritatin^ of a book to t^e auth6r, whd tkkte whoK
^MgfK^taa frotai vliodMr took, thh aei nmteH^i f9r it may be neetoaafy to inthtdoee friiak
h tteW.

C£ie M.

lx>rd

Chancellor

Talbot.

2 Eq. Ca. Ab.
14. pi. 2.

Affidavits al-
lowed to be
read fur the

<1) tbeg% Lib. A. 171)3. fol. ^38.
And ift C'oiiflfeirti b/ ^rtAhmore V«
Boweij before Sir !>» £vf^en, Master
of the Roils, sitting for the Lord Chan-
cellor on the llthof «/u/^, \fs6y(x) a
motion to dissblvle ah hi juticlH>n tt^ stay
waste was made WtiA^t ftihiilai' dr(:ttiti^
stances ; his Hotfaar had directed the
motion to stand of.er, that precedents
might be foudd, where the coart had
permitted affidavits to be read in sd im-
port of the inJHnotioQ iffeir aniwet; tfnd
on this daj the counsel for the plaintiff
mentioned Gibbs ▼. Cole^ sup. Ryder
V. Benthamf Aug, 1750. AUomeif'

General V. Benthahiy July 1^55, in
an Whith \hk »aAi6 thing ftfid biea
done* His Ht>nbaf* sasid he thovght,
as well on the precedents, as on the
reason of the thing, that the proceeding
Wall t^fbpct': btkt &s it BO hiatertldiy c6a-
coi'ne'd th« practice vt th^ ^un^ lie
would flt>t decide the point witheat
consulting the Lord Chancellor. Af-
terwards the defendant consented that
the affidavits should be read*, attd tfatey
we^ read accordingly. Elt vrde /moct
y. Humpage^ 3 Bro. C. G. 468.) jftnd
i Ves. Jun. 427. S. C. (y)

(x) 1 Cox 263. S. C. 2 Dick. 673.
and 2 Bro. C. C. 90.

< jr) Th^ ifttithority of Isoaei V. Hum-
pttge hflb be^n d\6Aied ih latet cks^s,
Mhnwdh t. Gdrdifi^j 7 Ves. 3tf8.
BtHtelep t. Brymtr^ 0 VeS. 35S.

^fithe v. Stnythe^ \ ^wan. iai. k\'
fidattt^ ar^ only tead id opposiliott to

ab ahs\l^r id pfdVte thb fath df Wrate
cf mlMMttkiigemedt. ^^iTef to prtiVtfe the
plaintiff's title ; Pncmgtofi v. I'citrib-
mgianj 1 Dick. 101. Berkeley ▼•
Brymery ub. sup* Norway ▼. Aotv^,
10 Ves. 144. Lawson t. Morgan^
1 Price 303. Morpheit v. Jones^ 1 9
Ves. 350. Hodgson y. Dean, 2 S. &

S. 223.; and affidavits filed after an-
swer, cannot be used to obtain an in-
junction, but ofaly to §up^tt ond ob-
tained befdre answer: ^o)hfttirti1k x.
Buckler^ 3 Anst. tbH. iM^soH v.
Mbfgaiiy ub. stl|^. Smythe V. I^^he,
tib. SU{). Je]greryg V. S/hfjfA, IJ. & W.
298. Glaskington V. 7^n><it/s9, 1 S.
ft S. iS4. : bbt they tt&y be ttead td
support fActj Ul)dg)?d in the btll^ knd
nbt admitt^ or dienied by the ahswer;
Taggart y. Hewlett^ 1 Mer. 409. Mor-
gan y. Goode, 3 Mer. 10. Jefferys y.
Smithy ub. sup. ; and where affidavits
have been filed in support of a motion
which stands over, and an answer is

Ih TVrfHi JPMckm, i^3^ nS

ctue to tM party) ^0ei« the iajimtttioA 14 kf^ difB^fod) ^aatl ^V
tbe book allowed to be di«peni^ Mid wld liy tte defittidut.
And in tkii cais it Waa held by the c^ult, tiiAl a email
TaHatiDn of \M kiir^Mioh would tadt entitle thtt defendant to
break in upon the patent^ in itgah^ fit AA Mte^ any gfant
of h patent fbr the like ptirpoM nftil^ht be haatratedv So,
diough in thie book, the ioie printltig xt^iefteef wee granted
by patent to the plaiAtiil^ Mme whole pamgtaplie appeared
lo be taken out of fomer autfaon; this was thought ndt
mailecial ; for it might be neeeeeary, hi beder to the intni^
dnoing of What ie neWi Wberefottt the iAjnadtion wtui con^ '
dniked«

pet in b^f6r« tt H agalti bi'dnghi tM^ wfM^ t J. ft W. 591. Glasiihgton fi
sach affidavits ma/ be readi Merpheti Thwmiei^ ub* tup.
T. Jone$^ ub. sup. Goodman v. Wkit^

HOLDBR ^ CHAMBURY4 [ 256 ]

Case 63.
Tab plaintiff Hoidtty lord of the ikianor df Batkampiam^ in Lord
SommeiskirfSy brtragfat this bill againet the deftodatit, foir Chancellor
tiie arfenm df a quit-rent of 7^ P^ trnt^M^ due i» him ai ^ E^cTli,
lord of the manor $ and another paJrt of his bill wml to hbld 4 163. pi. 25.
laf ge down belonging to hie mbnot, discharged itf the claim ^^^^^^
of common, which the defendant had upon the said dowdi ^ recover a
The plaintiff did not shew any difficulty which hindered mt, ^?it
him from recovering the quit-rent at law, but said, thi^ his f^^],^^*^
right thereto would appear by the wrttidgs in the defendant's piaintar tes
cufltodv ^ ^"^^t **

Tlie defendant by his aasWer said, he did not believe the ia#.
rent was due, but was willing to give it Up> ahd pay it and
the arrrarB, if he might quietly enjoy his common ; repre-
fi^ntiag withal, that he was but a poor tenant of the mattorj
and eould not bear the expense of a suit for the quit-rent^
which in a small time Would ciime to much nfore thbn the
inheritance of th6 rent w&s worth ; that he had ofibred to
shew all his deeds, and refer it to any two indifierent per-
sons : but that the plaintiff had threatened to ruin him, and
to spend 500/. for that purpose.

267 De Term. Paschoii 17S4.

Chamburt.

By the plaintiff's proofs it appeared plainly^ that this 7'»

per annum quit-rent was due^ and had been regularly paid,

till 1718^ and that it was payable aiLady-day and Michael-

mas in respect of the defendant's lands held of the manor;

and no difficulty appeared by the plaintiff's bill, as to the

describing or abutting the land.

Lord of a mar Lwd Chancellor. The bill, with respect to the plaintiff's

bUla^S£rt\ holding his down discharged of the defendant's claim of

**So"' be?^^ common thereon, is improper; for by the same reason the

longing to the plaintiff may bring a separate bill against every tenant of his

^iJ^^ o"\]iQ manor who shall set up the like claim. (1) As to such other.

tenant't claim p^j^ of the bill as would recoFcr the quit-rent ; there may

common ^ be indeed a case so circumstanced, as to make a bill of that

thmto ; tltii j^j| p^^per, as where the lands out of which it is claimed

an improper & & '

bill. But a are wholly uncertain, (2) and where the days, on which the
rent may ^^' same is payable, are also uncertain : but then these things
proper in lome ought to be hud in the bill, else a lord may be very vexatious
■tancet add to a tenant, and make him spend in his own necessary de-
what. fence more than three times the value of the rent. Here it

is hard for the defendant, when he does not know the plain-
tiff's title to the quit-rent, to admit his inheritance to be for
ever liable thereto. The. bill appears to be merely for vexa-
tion : for the plaintiff might have had a plain and easy way
to.have recovered the quit^rent without this expensive me-
thod, (viz.) by a distress ; and it is proved he has harassed,
the defendant with frequent distresses, and would not, after,
the defendant had replevied, proceed to an avowry. How-
ever, I do not see it will be for the defendant's benefit to
dismiss the bill as to this quit^rent; forthen the plaintiff will,
immediately sue for it at law.
r 258 1 Wherefore, since it appears here that the quit-rent, has.
In a poor been paid to Michaelmas, 17 18, let the Register, not the
ezpente, and Master, compute the arrears of the quit^rent from Michaelmas,
toirclw°ih^ ^^718, to this time; and let the plaintiTs right to the rent

court will refer it to the Regiiter, instead of a Master^ to compnto the interest, or arrears of rent.

( 1 ) Vide Disney v. Robertson, Buob. 148. Duke of Bridgewater v. Edwards y
41. Mayor of Boston V. Jackson^ Bunb. 4 Bro. P. C. 139. Bouverie t. Pren*
101. Mayor of York v. Pilkington, 1 tice, 1 Bro. C. C. 200. Duke of Leeds
Atk. 282. Lord Teynham v. Herbert, v. Powell, 1 Vez. 171. Duke of Leeds
2 Atk. 483. Bouverie v« Prentice, 1 v. Corporation of New Radnor^ 2 Bro.
Bro. C. C. 200.(x) C. C. 338, 518.

(2) North V. Earl of Strafford, ante,

(«) And leo Cowper v. Clerk, ante, 167. n. 1#

De Term. Pascha, 1734. S58

be established, but without costs. The bill to be dismissed HoLDEft
with costs as to all the residue. (3) v-

(3) Reg. Lib. A. 1733, fol. 394.

ATKINSON V. HUTCfflNSON. Case 64.

Edward Baxtsr, possessed of a tenn for forty years held Lord
of the church of Carlisle, by his will dated the 12th of Sep' Chancelloip
tember, 17312, devised the premises to trustees^ in trust to Talbot.
apply the rents and profits to keep the premises in repair^ 294^' \%2^*
and to renew as often as there should be occasion; and then Deriaeof «
m trust to pay the overplus thereof to the testator's wife i^r^,aJS
Sarah for her life, if she should so long continue a widow, ^ such child*
and after her death, or second marriage, to the use of such tesutor shaU
children as the testator should leave at the time of his death, d^Ih^^^d if
equally amongst them; and in case any of his said children aiihiachUdrea
should die without leaving any issue, the share of him or her living iuue,
so dying to go to the survivor or survivors of them ; and in ^^ ^.J'
case all his said children should die without leaving any issue^ die without
then to the use of John Hutchinson. The testator made his JS'^TiSgat
daughter Mary sole executrix, and died, leaving one daugh- the time of
ter, who afterwards died without leaving issue at her death ; tbu a^odde*
and whether the devise over to the s^d John Hutchinson was ^^ ^^^ ^ ^
good, was the question ?

Mr. Figmey insisted, that the same was void ; and that^
though this was the devise of a trust, yet it must be con- [ 2^9 ]
strued as a legal estate, and as it stood originally in the will^
without being assisted or made good by any subsequent acci-
dent ; that it might be laid down as a rule, that where the
words of a will, in the case of a real estate, are sufficient to
give an estate-tail, there the same words, when applied to a
term for years, will convey the entire interest in such term :
now here could be no doubt but that, had the testator been
seised of land» in fee, instead of the term, and devised them
in this manner ; the first devisee [the daughter] would have
been tenant in tail ; and this was the stronger, for that the
first devise, after the death or second marriage of the tes*
tator's wife, is to juch children as the testator should leave

TOL. Ill, P

IB9 toe Term. Pascka, \7S^.

Atkiksqn at the time a/ Ms death, which word» were afterward

„ ^' dropped : and from whence could proceed that ehatij^ of th^

fiON. • testator's expression^ but from a change of his intenfion ?

Besides^ here was a posstbiHty upon a possibility, under

^hich Mr. Hutchinson, the last devisee over, claimed; and

therefore it could not be good.

The devise t>f Z^ord ChonceUoT. I admit the devise of a trust must have

ft trust to be the same construction as that of a lejral estate, and that acci-

constmed m •

the same man- dents subsequent to the making of the will, shall not any

alend estate ^^^7^ aflfect such construction : and further, that though the

and not to be intention of the testator is greatly to be regarded, yet tkis

aeqtwnt acd-' ^^ intention must ever be consistent with the rules of law.

denti. Sut then the rule which has been insisted on, that whatever

words of a will in t^e case of a freehold will ofeate an entaily

the same^ when made use of with respect to a term, will pass

the absolute interest in such term : this rule (I say) seems to

Whan tbe be laid down in too great a latitude. So far indeed may be

words of a de- agreed, that where the words of a will, when used with re-
vise of a lease- ^ ' '

bold would gard to a * freehold, give an express estate-tail, there the

m«M esti^ same words applied to a term wiU pass the whole interest in

tail itt the case guch term : as if a term for years be devised to jf, and the

th^e a devise hws of his body, remainder to JB., in such case the remaindei^

®^«""^^"^** is void. So if the devise of a term were to A. for lifer, re-

▼oid ; secus, maindcr to the heirs of his body, remainder over to JB., such

the fo^« dl^ remainder to S. would be vwd, causd qud supra.
rise wonid»in But in the principal case, the words of thd will would, if

frMhoid»make ^^cd with respect to a freehold or real estate, pass an entail

an estate-tail only by construction and implication ; and that these should

only by im™

plication. carry the absolute interest in the term is no necessary con-
[ *260 ] sequence. Where words are capable of a two^fold construc-
tion even in the case of a deed, (and much more of a will) it
is just and reasonable that such construction should be re^
ceived as tends to make it good ; and in the principal case,
the devise of the term to the testator's children, and if they
should die without leaving any issue, then to Hutchinson,
may easily and naturally be understood to signify, if they die
without leaving any issue at the time of their death ; my,
much more naturally than in the other case, (viz.) if there
should be a fiiilure of issue of them a httndred years hence.
The reason given in the case of Target v. Crount, reporfeed in

(a) Vol. 1.432. the Abridgment of Cases in Equity, 193. (a) hi very atioi^
in support of this devise over, whi^ in efifed; was ; one pas*-
sessed of a term for years, devised it to his son ^i if the

He Term. Paacka, nSk. 269

tem; shcMild 80 long contiiiae and no longer^ and «fter his Atkinson

death to auch of hia issue as he should devise it to^ and if ^. ^'

flbotild dia mthout iaaue, then to hia (the teatator'a son) JS* ^^^^ "

J. died without isaae, and without making any disposition
of the term; and the question being whether £. the younger
son was entitled,^ it was decreed in hia favour; for that the [ 261 ]
woida nfying wUhmU issue have a two-fold meaning : the
one to signify a dying without issue at the time of one^s
deafly the other a dying without issue, whenever such issue
fails; and though, where lands of inheritance are devised to
ji^ and if he die without issue, then to il*y an estate tail will
pass to Ji. by implication, in order to comprehend the issue
to all succeeding generations ; yet in the case of a term for
years which cannot possibly descend to issue, there is no ne-
cessity to make such a construction ;. for .whidi reason, the
mo^t 'Obvious and natund sense shall there take phice, and
the devisor be presumed to have meant, if A. the first devisee
die without issue living at his death ; consequently, the dying
without issue being confined to a life, makes the limitation
over good, by way of executory devise, (a) So the case of (a] Vol. 1.663.
FoHh ▼• CAifnnan seems to be in point, where one possessed
of a term for years, devised it to ji. for life, and if A* died
leaving no issue, then to J9. It is true, the Master of the
Rolls (Sir Joseph Jekyll) was of opinion and decreed, that
thedeviae over to B* was voad| but on an appeal^ the Lord
Chancellor Parker held it good, for that there can be no
difference between the words without having issue, (which is
construed to mean (b) issue at his death) and leaving no (b) See vol. l.
issue* Farther what made it infinitely stronger, was, that the j^f^hoUg 9.
fact happened to be (though this was not observed by the Hooper and
counsel in that casie) that the testator had a real and lease- Eiu^^^i
hold estate, and devis^ all {c) his estate, aa well freehold as («} VoL 1. 667.
goods mid chattels, to A., and if ji. died leaving no issue^
then to S»; and there the same words in the same will were -
construed to make the several devises good, and to give the [ 2^2 ]
first devisee an estate-tail in the freehold, and but an estate
during his life in the leasehold.

Wherefore in the principal case the intention of the tes-
tator being plain, that if ^ died, and left no issue, the devise
over ahoold take effect, the Lord Chancellor, in compliance
with such intention, and also agreeably to the precedents in
pointy decreed in flavour of the devisee over, viz. that the
worda^ if the first devisee died without leavmg any issue,

862

De Term. Pasclue, 17&I.

Atkinson 0. must be intended to mean, without leaving issue at Ui
HuTCHiN- death. (1)

SON.

(1) Reg. Lib. A* 17S3. fol. 703.
Vide Nicholls ▼• Hooper^ ante, 1 toL
108. Target ▼. Gauni^ ante, 1 vol.
432. Pinbury v. Elkin, ante, 1 vol.
563. Forth v. Chapman^ ante, 1 vol.
663. Pleydell ▼. PleydeU^ ante, 1 vol.
748. Maddox v. Staines^ ante, 2 vol.
421. Balguy V. Hamilton^ Mos. 186.
Attome^'General v. J7a//, Kel. 13.
Sabbarton v. Sabbarton^ Ca. temp. Tal.
65 & 245. Beauclerk v. Dormer^ 2
Atk. 308. SaZ/ern v. Saltern, 2 Atk.
376. Sheffield v. JLord Orrery, 3
Atk. 287. Trqffbrd v. BoeAm, 3 Atk.
440. Lampley v. Blower, 3 Atk. 306.
Chamberlain v. Jacob, Amb. 72. JSor/
o/* Stafford v. Buckley, 2 Yez. 181.

£xtf/ V. Wallace, 2 Vez. 120, 318.
Sheppard ?. Lesaingham, Amb. 122.
Bodens v. Watson, Amb. 398, 478.
JTei/y V. Fowler, 6 Bro. P. C. 309.
£rrey V. Montagu, 6 Bro. P. C. 429.
Ear/ 0/ Chatham i. Tothill, 6 Bro.
Pi C. 460. Attomey^General v. ifin^
1 Bro. C. C. 170. Bi|r^e v. Bensley,
1 Bro. C. C. 187. W^c^er v. Mitjbrd,
1 Harg. Law Tracts, 513. Glover v.
Strpthoff, 2 Bro. C. C. 33. Doe t.
iyc/e, 1 T. R. 593. Goodtitle v. Pe^-
cTerii, 2 T. R. 720. JSTntir^t v. £/iitf, 2
Bro. C. C. 670. Porter v. Bradley,
3 T. R. 143. Hockley v. Mambey, 3
Bro. C. C. 82, and 1 Ves. Jon. 143.
S. C. (x)

(«) Bodens v. Lord Galway, 2 Eden
297. Daintry v. Daintry, 6 T . R. 307.
Wilkinson v. 5ou/A, 7 T. R. 555. Aoe
V. Jeffery, ib. 589. Doe v. Cooke, 7
East 299. Everest v. ffe//, 1 Yes. Jun.
286. Chandleu i. Price, 3 Ves. 99. S. C.
13 Yes. 479 n. Rawlins v. Goldfrap,
5 Yes. 440. Ex parte Sterne, 6 Yes.
169. Crooke v. De Fandes, 9 Yes.
197. DoeAfn v. Clarke, 9 Yes. 680.
Tenny v. jf|rar, 12 East. 253. Barlow
V. &i//er, 17 Yes. 479. Dansey v.
Griffiths, 4 M. & S. 6 1 . Bonn v. Pen*
11^, 1 Mer. 20. S. C. 19 Yes. 646.
Stratford v. Powell, 1 Ba. & Be. 1.
Xjfofi V. MUcheU, 1 Mad. 467. ToMt//
V. Pitt, ib. 488. Murthwaite v. Bur*-
ftoref, 2 Brod. & B. 623. Murthwaite
V. Jenkinson, 2 B. & C. 358. S. C. 3
B. & C. 191. And see 2 Saund. 388.

n. 9. The result of these cases ap-
pears to be, that whether the subject
is real or personal estate, unless there
are expressions or circumstances firom
which it can be collected that these
words, die without issue, are used in a
more confined sense, they are to have
their legal signification, viz. death with-
out issue generally ; Barlow v. SaUer,
ub. sup.; that in the case of a devise of
real estate the words without leaving
issue bear the same sense as without
issue; Dansey i. Griffiths, vh. sup.; bat
that in the case of a bequest of peraonal
estate those words are construed, with-
out leaving issue living at the death of
the party, to the failure of whose issue
the words relate, Crooke v. De Fandesy
9 Yes. 204.

lO/

v^'

Case 66.

LOW V. BURRON.

Lord »j«jjjj IjJji y^2^ for 3^ account of the rents and profits of divers
Talbot, i^^^suages and lands in Warrington, in Lancashire, on this

2Eq.Ca. Ab.394,pl. 1. An estate pnr autre vie may be limited to A. ia tail, remidDder to B^ for

ial(

tlus is only a description, who shall tske as special occupants during the life of ecslu i|Qe

De Term. Pascha, 1734. ' 9fi2

cttie : John Casscnf seised of an estate for three fives in the Low
premises^ by his will dated the«12th of January, 1684, de- ^'

vised them to his daughter Mary MolUneux for life, remin-
der to her issue male, and for want of such, remsdnder to
one Low J under whom the plaintiff claimed. Mary Mollu
nmxy by lease and release conveyed the premises, in consi-
deration of her marriage with Edward JSurron, to the use of
herself and her intended husband, and the heirs of their
bodies, remainder to the heirs of her husband Burron. In
I7O6 JIfafy died without issue; and the plaintiff, claiming
under the person in remainder, now brought this bill for an
account of the rents and profits.

The questions were, first. One having an estate for three
lives, and devising it to A. in tail, remainder to J?., whe-
ther this remainder was good? Secondly, supposing it to be [ 263 ]
good^ whether ji. by such lease and release could bar it ?

As to the first, it was said, and so agreed by the court,
that the limitation of an estate pur autre vie to jf. and the
helra of his body, makes no estate tail in ^. 3 for all estates
tail are estates of inheritance, to which dower is incident,
and must be within the statute De Donis ; whereas, in this
kind of estate, which is no inheritance, there can be no
dower, neither is it within the statute, but a descen^ble [B]
freehold only.

Also the Lord Chancellor held plainly, that this was a [C]

[K] For which reason it has been determined, that where a lease for three lives
has been granted to a man and his heirs, and such grantee died, leaving an infant
heir, the parol shoald not demnr. By the Lord Talbot^ in another branch of
the cause of ChapUn t. ChapUn^ 18th July^ 1735. Vide post. 368.

[C^ The objection against this remainder being good is, — for that when the
lessee had deTised the premises in tail he then had nothing left in him but a
possibility, which he could not devise or limit over ; as if a man were seised in
fee-simple, and at common law had granted |ands to one and the heirs of his
body, this was a conditional fee ; and forasmuch as the donor had only a possi-
bility of reverter, he could not limit it over. Now, if at common law an estate
in fee could not be limited over after an estate given to one and the heirs of his
body, much less shoald an estate for three lives be limited over after sach a
failure of issue. And as to the notion that in this kind of limitation the heirs of
the body of A. tak^ only as special occupants, and that a man may name as many
special occupants as he pleases ; by the same reason it may be argued that this
estate for lives may be limited to A, and his heirs ; and if A, die without heirs,
then to B, and his heirs, which certainly would be a void limitation to B, ; and
in presumption of law, the continuance of the issue of a man's body may be for
ever. From whence it should seem that dfter the lessee for three Uves has
granted or devised the premises to A. and the heirs of his bod j, he (the lessee,)
has nothing but a possibility, which he cannot grant or limit over. Note. This
appears fiom the Reporter's IMS. to have been the opinion of Mr. Webb^ an

063 Be Term. pMchas, 17^.

Low good (1) remainder to JB. on AJ% doith nvjtboiQt hseat, ft be«

^' ing no more than a(a) description wibo ^bould take l» special

occupants during the lives of these three cetHti fUB Viet. As

r«) See Chi ^ ^ grantor had said^ ^' instead of a wsadcsiag right ef[D]

Un «. Chaplin, ^^ general occupancy, I do appoint^ that after the death of

post. d6S. <( ^^ ^g grantee, they who shall happen to be heirs of the

*^ body of A. shall be ^^ecial occupants of the premises ;

*' and if there shall be no issue of the body of ^:theift JB*
*^ and his heirs shall be the special oceiqpflats thererf." And
that here can be no danger of a perpetuity ; for all. Aese
estates will determine on the exfiratimi of the three lures*
[ S65 ] So, if instead of three, there had been twenty Ufcs^ aU
spending at the same time^ all tbecandles lighted «p at once,
it would have been good ; for, in effect, it is only for mae

eminent oonyeyancer, hte of the Ifmer Temple, fimrever^ the law is Mtded
as above.

[D] It is observable, that at law there could be no genenA occupant of a rent:
as if r bad granted a rent to A. for the life of B., and A. had ditrd, liTing JB., the
rent would have detemioed. %RolL Ahr. 150. Stdk, 189. But there might
have been a special occupant of a rent As if I had gmated a rent to A* and
his heirs for the life of B., and A, had died, liTing B. and leuviag an heir f such
heir would have been a special occupant. Yet, if a man had granted a rent te A-f
his executors and assigns, during the life of B., and afterwards the grantee had
died, leaTing an executor, hot no assignee, the esecotor should uot have had tiie
rent, in regard it being a freehold, the same could not descend to an eaacaSsr,
JIfo. 664. 2 RoU. Abr. n%. 3 Car. Sir Richard BuUer ei al' v. Chtvertany
agreed and admitted by Jones Justice et Cur*j and bj the counsel on both sides,
that the rent is extinct ; though there seems to hate been no •sound reason for
this distinction. But as to rents granted pur autre vicy the statute of bauds
and perjuries has made an alteration; for by that statute, any estate ptar,aiUre
vie is made deTisable, and if not devised away, shall be assets in the.hiunds of the
heir, if limited to that heir ; if not limited to the heir, it shall go to the execu-
tors or administrators of the grantee, and be assets in their hands. So that, if
since that statute a rent he granted to A. for the life of JB., and A. die, liriog JS.,
jI.'s executors or administrators shall have it during the life of B., for the statute
is not only made to prevent the iuCouTenieuce of scrambling for estates, and get-
ting the first possession after the death of the grantee, but likewise for preserving
and continuing the estate during the life of the cestui que vie ; and it is reason-
able, since the grantee might by deed have disposed of the rent during the life
of the ce^lin que vte, that, though by his dying without having made any such
disposition, in nicety of law this estate would b^ve detennined ; yet, by the sta-
tute, that interest which passed fipom the grantor ought to be preserved, and shaB
go to the executors or administrators of the giantee during the life of the ouiui
que vie. And the statute in this case does not enlarge but only preserves, . the
estate of the grantee. By the Lord Keeper Harcouriy in the case of Rawimeom
V. The Duchess qf Montague et oT^ 4th December^ 1710, though this wafjiet
the principal point.

(1) Fimh 1. ZWctef> % Vera* 184*

De Term. Pascka, 17M. 265

BURROM.

file^ ffiz. that which shall happen ta be the sumiror. For Low
whkfa reason it were very improper to call this an estate tail,
since at that rate it would not be liable to a forfeiture^ ^^ r ^ 6 Co 3f
punishable for waste^ the contrary whereof is true, (a) 2 RoU. Abr. *

2rffy, The Lord Chancellor said, that though by a lease, ^^' ^ '"'•^•
or by a lease and release, ^. might bar the heirs of his body, tbm lirei U
as in some respect elaiminir under him, yet he inclined to U^j^d to A.
ihmk ji. coma not bar the remainder over to B., who was* of hSs body,
in the nature of a purchaser, and would be no way subject to J;" y "ewe^or
the incumbrsnces of jf. any more than if the estate jptir autre by ^'^ '^
vie had been limited to ji. for life, remainder to J5. for life ; w the heinof
in which case plainly ji. could not bar JB. especially by this w*. bo^yt ■•
conveyance of lease and release, which never transfers more him, bnt can-
than may lawfully pass : whereas the conveying away or J^ ^ ^q^
barring the remainder limited to J5. (admitting it to have tamen.
been a good remainder) is doing a wrong to B., and depriving
him of an estate which was before lawfully vested in him.
Nay, indeed, it seemed to him as if no act which ji. could
do would be capable of barring this limitation over to B.,
in regard there could be no common recovery sufiered
thereof, it being only an estate for lives ; and his Lordship
«aid, that this (as he remembered) was determined in the
case of Sir Hardolph fFasteneys (l) in the House of Lords, [ 266]
upon an appeal from this court. [£]

[E] The following case has been taken from the Register's Book : —
The late Earl of Arlington devised, inf aPy a leasehold estate, being the
manor of Toiten-hall^ alias Tottenham Court^ in Middlesex^ and held for three
lives of the cathedral church of St. Paul, London, to the Dochess of Grafton,
his only issue, for life, remainder to the Duke ofGrqflony for life, remainder to
the first and every other son of the Duke by the Duchess in tail male, remainder
to the heirs female of the Duke by the Duchess in tail, remainder to the right
heirs of the Duchess. Afterwards, in 1686, the said lease was renewed agree-
ably to the above limitations. The Duke of Grafton died, and his son, the pre-

(1) Woitne^i V. Chappell, 1 Bro. cial occupant. Bakery. Barley j2Vem,

P. C. 457. But it seems now, that any 225. Norton v. Frecker, 1 Atk. 524.

alienation by the (quasi) tenant in tail Forster v. Porster, 2 Atk. 259. Sal-

will be sufficient to bar the remainder- tern y. Saltern,^ Atk. 376. Williams y.

man, although, if no such act be done, JeArj^/, 2 Vez. 681. Blake y. Blake, (x)
the remainderman will still take as spe-

^ («) 1 Cox 266. Blake v. Luxton, 6 ▼. Mannockj 2 Eden 350. Dillon y.

T.R. 280. Coop. 178. lSch.&Lef. 204. Dillon, 1 Ba. & Be. 95; and in the

Ex parte Sterne, 6 Ves. 156. Ripley above cases it is decided that a disposi-

V. fVaierworihj 7 Ves. 425. Campbell tion by will does not bar the remainden^
V. SandjfSj 1 Sdi. h Lef. 288. Grej^

866 De Term. Pascha, 1734.

I<ow But notwithstanding all this, yet, it appearing that the

Q ^' right of the plaintiff, and of those under whom he claimed,

^ ' had accrued so long since as the year 1/05, now near thirty

statateof li- years ago, during all which time tiie * defendant's possession

Sffpi^ed^' had been unmolested, and the statute of limitations being

wliere B.'i pleaded, (though it was urged, that the plaintiff had not the

^ve 30 yean 1^^® "1 his possession, and that the defendant in his plea

unce, though had set forth, that the lease had been renewed : and though

the case may , ,

be 10 circnm- it was moreover insbted, that however the plaintiff might be
thepUOnUff*' disabled from bringing an ejectment, he might yet bring a
notwithsund- bill in equity;) the Lord Chancellor declared, he would
no^ bring an g^nt no relief in the case of so stale a demand, and therefore
ejectment, allowed the plea. ( 1 )

ini^^ht bring r \ /

« bill in equity, yet the court will not as^t a stale demand' against a long and qniet poisei

rion. [ ♦ 267 ]

sent Duke, broagbt his bill, praying that the leasehold premises (some of the
lives whereby the same were held being dropped) might be renewed and settled
on the Duchess for life, remainder to the plaintiff the Duke, and his heirs; for
that otherwise it would t^d to a perpetuity. The Lord Eusion, (the Duke's
eldest son,) was then an infant of seven years of age ; and the cause being heard
the 2d of August 1722, the court conceiTed that they could not do it till a fine
sur concesserunt had been levied by the plaintiff, the Duke of Grafton^ and the
defendant Sir Thomas Hanmer^ (who had married the Duchess,) and the Duchess
of Grqflon ; and the matter was referred to a Master ; and it coming on afler^
wards, 21st December 1722, on the report, by which it appeared that a fine had
been levied, and that the Master had settled a lease and release, being an assign-
ment of the lease of 1686 to new trustees, thereupon the Lord Chancellor Mac*
clesjield ordered that the said lease and release should be executed, and that the
new lease should be to these new trustees, in trust for the Duchess for life, re-
mainder to the plaintiff the Duke, and his heirs, during the lives in the lease.
Duke of Grqflon v. Hanmer, And indeed it seems reasonable, that the first
tenant in tail (improperly so called) should be allowed to bar the limitations over ;
for though the original estate be only for three lives, yet, it being the interest of
both landlord and tenant that the leases should be renewed, and it being the doc-
trine of the Court of Chancery that all such new leases are subject to the old
trusts, the estate might by this means continue for ever, without any possibility
of being barred. See also Baker v. Bailey^ 2 Vem. 225.

(1) Reg. Lib. B. 1733. fol. 334.

Be Term. Paaclue, 1734/ 267

BEWICK t;. WHITFIELD.(l)*^ ^ ^ ^^ - "^^^^w.

\See a Branch of this Cause, Vol. 2. 240.]

A. WAS tenant for life^ renudnder to J5. in taU, as to one Lord
moiety, remainder as to the otiier moiety to C. an infiuit in ^"»ceUor
tail, remainder oyer. There was timber upon the premises a. tenant for

life, remainder
to B. in tally as to one moiety, remidnder to C. an infant in tail> as to the otlier mcnetj, re-
mainder over : there is timber on Uie premises greatly decaying ; B. the remainderman, brings
a bill, praying, that the decaying timber might be cut down, sold, and the money divided be*
tvixt hiffl and the infant; and the tenant for life in^ts to have part of the money; tenant
for life mnst hare sufficient left for repairs, &c, and an allowance for all damage done to bSin
on the ground ; but to have no allowance for the timber, which, when severed by accident, or
by a trespasser, belongs to the first owner of the inheritance. Decayinj^ timber, if for orna-
ment or safety, not to be cut down« Also where an infent is interested m the inheritance, no
timber can be cut down, but by the approbation of the Afaster : and the infent's moiety of the
money to be put out for his benefit.

(1) The estates, upon which the tates for his life, and the plaintiff ito-
timber in question in this cause grew, bert Bewick the son was become en-
were settled to the use of the grantor titled to an estate tail in remainder ex-
for life, and (after several prior limita- pectant on the determination of that
tions) to the use of Robert Bemck for estate for life, and that the said Joseph
bis life, remainder to trustees to pre- Bewick and Ber^famin Bewick were
serve contingent remainders, remain- dead : the bill proceeded to state there
der to his first and other sons in tail, were great quantities of oak, ash, and
with like remainder to Joseph, Cat* other timber trees growing on the said
verly, and Bet^amin Bewick, and premises, the greatest part whereof
their first and other sons, remainder to were so very old, that they were going
Jane Bewick and Barbara Ramsay, very much to decay, and, if permitted
(sisters of the grantor) and the heirs of to stand, would grow every year of
their bodies, remainder to the right much less value, and if cut down^
heirs of the grantor. The bill in this would be of considerable advantage to
cause was filed by Robert Bewick the the persons entitled to the inheritance
tenant for Ufe^ and Robert Bewick his of the said premises ; that the plaintiff
infant son. The defendants were, Robert Bewick the son was an infant
Utrick Whitfield, and Philadelphia of only three years old, and therefore
his wife, and the said Calverly Be- could give no directions for cutting
wick : but it does not appear by Reg* such timber ; that the defendants in-
Lib, what interests Whitjield and his sisted, that by a decree made in two
wife had in the premises. After stating former causes in this court, dated the
the settlement, and the determination of 8th of October, 1724, the plaintiffs
the several estates prior to the estate were restrained from committing waste
for life of Robert Bewick the father, upon the said premises, whereas that
and that the plaintiff Robert Bewick decree ought not to be objected to the
the father was become seised of the es- plaintiffs, bv reason that the greatest

Di Term. PmcIub, 17^.

Bewick

WmmsLD*

[«»]

i^^^

greatly decaying; whereupon B. the remaindennan brought
a bill, prayings that the timber that was decaying might be
cut down, and that the plaintiff the remainderman in tail, to-
gether with the other remainderman, the infant, might have
the money arirfng by the sale of this timber. On the other
hand, the tenant for life insisted to have some share of this
money.

ZfOrd Chancellor. The timber, while standing, is part of
the inheritance [F] ; but whenever it is severed, either by the
act of God, as by tempest, or by a trespasser and by wrong,
it belongs to him who has the first estate of inheritance,
whether in fee or in tail, who may bring trover for it; and
this was so decreed upon occasion of the great windfiill of
timber on -the Ctwendish ^8tate.(l)

yj»^ [F] A. tsnsnt ibr yearB, venainder to JB. for life, remaiiider to C in fee ; A.
h (Mng waste; B^ though he cannot bring waste, as not having Che in-
heritance, jet he is entitled to an injuactioii. See 1 Roll. Abr. Roswelts case,
377.(x) Bat if the waste be of a trivial natare^ and a fortiori^ if it be meUoraU
iag waste, as by building oa the prendaes, (see 1 Inst 53.) the court will not ia-
join ; nor if the reversioner or remainderman in fee be not made a party, wha
possibly may approve of the waste. By the Lord Kmg^ MoUkuux v. Bowell^
Poickmj 1730.

part'of the said timber trees were going
to detay, and would grow worse every
^ear ; and the bill therefore prayed
that the pkintiff Robert Bewick the
ftiher might be empowered to cut
down and sell such timber trees as were
decaying or at their fall growth and
lit 1o be cut, far the beneJU of the
plaint^ Robert the htfimi, and so
from time to time as there should be
occasion fhr the beneJU of the said m-
^^ni#^-The defendants WhUJield and
his wife by their answer admitted many
of the trees to be in a state of decay:
Imt insisted that some of them had
been planted for ornament ; and they
hoped the court would take care as
well of their interest in the premises,
as of such money as should arise from
the sale of the timb^ which die plaintiff
tiw fother should be authorised to cut
and sell. The defendant Caherijf Be*
:k said that there were several tim-

ber trees on tiie said premises at
full growth, and others going to decay,
and apprehended that it would be for
the benefit of every one interested la
the premises to have such, as were de-
cayed, or going to decay, cat down ;
and he was willing that the same should
be cut down and sold by the direction
of the court, pro?ided the money
arising thereby should be secured, and
put out at interest for the benefit ci the
persons, who should be cntitied to the
inheritance of the said premises. — So
that it appears from the pleadings, that
the tenant for life, so fiu* from daiming
any share of the UMiney, was oo*|ilaintiir
with the infant tenant in tail in a bin
praying to have the money secured f^r
the ben^ of the infant.

(1) But yet where the tenant for
life Ims also in himself the next ezisteiit
estate of inheritance, subject to iateiw
mediate contingent remainders, he shall

De Term. Pascha, 1734.

d68

Ufy,^ Ai to the tenant for lift, lie tmght'not to h«fm tn^
diare of theoiooey: iurising by the eole of Uiili timber ;(jt) 4nit
amcehe lias a right tOt what may be Miflicieiit for repdrs and
botes, Ga»> mmt »be talien to l^e eooagh upon the estate
for that purpoee^i and vfaatoref' damage is done to Ae te-
nant for life on tiie premisea byhim hdid for life, Ae same
oagiit to be^made good to him.

3dfy, With tegwtd to the timber fdtaiidy decaying, it <s for
the -benefit of the persons entitled to the inheritance, that it
should be cut down, otherwise it would become of ho vahie ;

not iake advantage of his own wroqg
in catting down timber, but the coni;^
^ will preserve it for the benefit bf the
^ //{^^°^i°gcot remainder-men. WiUiam$
^ ^ V. Duke of Bolton J Feb. 24, 1784. The
ff3 Dake was tenant for life with contin-
gent remainders to his first and othe/
sons, remainder to Mrs. Orde for life,
remainder to her first and other sona,
with other coottngeot remainders over,
(with estate^ to trustees to preserve all
the contingent remainders) remainder
to the Duke in fee. — Mrs. Orde had a
son bonr, who died in a few days after
his birth. All the contingent remain-
ders being yet in expectancy, the Duke
cut down timber. Mrs. Orde had after-
wards another son, who was a defendant
in the cause. On the question, to
whom this timber should halang, 4he
Lord Chancellor was of opintoo, that
as it was not competent for the Duke
to cut down timber in respect of his
life . estate, he should not taks advan-
tage of his'own wrong — ^that the tim-
ber, although by severance become per-
sonalty, was yet bound, as far as it

could be^ to the nsei of the realty-*
that the administrator of Mrs. Ord^§
jrst son was certainly not eatUled, the
child being dead at the time-of the tim-
ber cut — ^neither could her ae^ad son
claim it, for althou^^h ha had a ^vsited
estate of inheritance, yet such estate
was liable to be divested by the Dnke^s
having a son. His Lordship therefore
thought nobody at present entitled, bat
directed the Duke to pay Into caoft
to the credit of the cause, the snnfi of
2943/. lOd. for which the timber had
been sold, and ordered that the Master
should enquire into and ascertain the
timet at which the said sum or any part
thereof was received by the defendant
the Duke, and should compute interest
thereon from such times respectively,
-and that the Duke should pay into
court in like manner what should be
fband to be the amount of such interest,
and that auch principal and interest
should be laid otft, subject 4a further
order with liberty for any person in-
terested to apply. Reg. Lib. 1783. fol.
326.Cy)

(y) 1 Cox 72. Powlett v. Duchess
of Boiian^ 3 Ves. 374. So Perroi v.
Perroiy ub. sup. Lee v. Alston^ 1 Ves.
Jan. 78. S. C. 3 Bro. C. C. 37. Dare
V. Hopkins f 2 Cox 110. The Marquis
of Lansdowne v. The Marchioness of
Lansdowne^ 1 Mad. 140. As to what
estates^ tylber -than of tnfaerkaaoe, en-
title the tenants h|o cut timber, or to
have it when cut, see WHliams v. Wit'
liamsy 15 Ves. 410. S. C. 13 East. 209.

Wickham v. Wickham^ Coop. 288. S. C.
10 Ves. 410. Dwois v. Duke ofMarU
boroughj 2 Swan. 144. SkeUon i.Skel^
iouy 2 Swan. 170 n. Jbrahall v. Bubb^
2 Swan. 172 a. 8. C. Fiaen^^dS^aqd 2
Show. 60.

(?) But now the ptt>duce4ff the tim-
^ber Is kid out, and Ae Interest paid
to the tenant fojr life| ff^kham v.
Wickhamy ub. sup.

968

De Term. PaseluB^ 1734.

BswicK but this shall be done with the approbation of the Masto ;

^' and trees though decaying, if for the defence and dieUcr of

Whitfield. ^^ house, or for omament,(l) shall not be cut down. B.

that is the tenant in tail, (and of age) of one moiety is to

have a moiety of the dear money subject to such deducdons

as aforesaid; the other moiety belonging to the infant, must

[ 269 ] be put out, for the benefit of the kfant, on government or

real securities, to be approved of by the Ma8ter.(2)

(1) Vide Chamberkdn ▼. Dummery
1 Bro. C. C. 166. and 3 Bro. C. C.
549.(19)

(2) The decree directs the Master
^ to enqaire what timber there is stand-
^^ ing on the said estates, that is in a de-
^' cajing coDditioii,(0 which is neither
^^ a shelter 6r ornament to the seat, and
'^ that such decaying timber as the
^^ Master shall direct shall be cut down
^^ from off the said estate, and sold by
*^ such persons as he shall appoint for
^^ that purpose, and out of the money
^^ arising by the sale of such timber the
f^ costs of all parties to this suit (to be

^< taxed by the said Master) are to be
<< first paid, and the residue of the said
<< money is to be put out at interest on
^^ Gofemment or other security, in the
" names of trustees to be approved of
<< by the said Master for the benefit of
<< the said plaintiff Robert Bewick the
<< infant, to be paid him when he comes
<( of age, and the trustees are to dedare
<< the trust of the said money, and all
" parties are at liberty to apply to this
^^ court from time to time, as there
^^ shall be occasion, for further direc-
"tions." Reg. Lib. A. 1733. fol.
512.

(o) S. C.3 Dick. 600. Lord Tarn- y. Delapole^ 17 Yes. 150. Smythei.

ttorih ▼. Lord Ferrers^ 6 Ves. 419. Smythe, 2 Swan. 251. S. C. Wils. 426.

WilUams v. M^Namara, 8 Ves. 70* CoJ^n ▼. Cojiit, Jacob. 70.
Day V. Merrtfy 16 Yes. 375. Delapole (0 So Hussey t. Husse^y 5 Mad. 44.

Case 67.

Elizabeth Sidney^ • , • • .
The Hon. Jocelyn Sidney, Esq.

Plaintiff.
Defendant.

On an j^ppealfrom a Decree at the Rolls,

Lord M|is. Sidney, the plaintiff, brought her bill against the de-
Chancellor fendant her husband, to have a specific performance of her
2 Ri^Ca°Ab °^*"™8® articles, dated the 17th of October, 1716, whereby

29. pi. 37 Wbere the wife sues the huBband for a specific ^rformaiice of her marriage-articles,
and that he may settle each aud such lands on her for her jointure; it is no bar to her demand,
that she has elopcMi irith an adulterer; much less if this be not by the husband put in inoe '»
the eause*

2^ a/'- J. C^JJ^o ■
A ^^^

De Term. Poachy, 17S4. 269

fhe defendant^ fhe hasband^ covenanted, that within eight Sidnet
months after the plaintiff Elizabeth should come to age, he ^ ^*
would convey his estate in Glamorganshire to trustees, to
the use of himself for life, remainder to the use of trustees
to support contingent remainders, remainder to the use of
his mte for her life for her jointure, remainder to their sons
successively in tail male, remainder to the daughters in tail,
remamder to himself in fee. Also the plaintiff JS/ooie/A,
the wife, wi(h the consent of her guardians, covenanted, that
she should, within eight months after she should come to
age, convey her estate in the same county, being about 350/.
per ami. (but well stocked with timber) to the use and in-
tent, that there should be paid thereout to the plaintiff
Elizabeth, IQOL per ann: for her separate use during the
coverture, 100/. per annum to her mother, and 50/. per
annum to the plaintiff's sister, till she should come to age ;
and then she to have lOOOi. and that her estate thus charged
should be conveyed to the use of the defendant for life, [ ^0 ]
remainder to the use of the plaintiff, his wife, for life,
remainder to the use of the first, &c. son in tail • male,
remainder to the daughters in tail, remwider to her right
hdrs. The timber upon her estate to be applied to pay off a
mortgage of 5000/. on the defendant the husband's estate,
and the surplus of the money arising by the sale of the tim-
ber to go to raise portions for younger children. So that
the bill was, to compel the defendant tiie husband to perform
his part of the articles, and that he might account for the
timber he had cut down from off the wife's estate.

The defendant by his answer set forth, that the plaintiff
the wife had wUhdraton herself /iram her husband; that she
had lived separately, and very much misbehaved herse\f.

The proofs were very strong, that the wife, the plaintiff,
had had criminal conversation with another man : but in the
depositions there being some evidence that the husband was
also guilty of the like offence, so that the wife might recri-
minate ; the Master of the Rolls decreed a performance of
the articles, from which decree the defendant now appealed
to the Lord Chancellor.

And it was insisted on behalf of the husband, that, con-
flidefiagthe incumbrances and annuities on the wife's estate,
the husband was a very litUe guner therefrom ; the wife in
a court of equity appeared with but an ill grace, as endea*
vouring to compd a performance cf her husband's agree- ...

De Term. Pauehm, 17S4F.

JBMtj twhtm abe heraelf had broken her own mfthMge coif^

^- tract in the: moat. snored aad ttoderi part of it; that
wKcv. regard to.artidei^ if the^ourt find» nqr bconvenienoe will

[ VI ] leaiilt from compeUing a pcrfomianoe theieof, thejr>wiU not
deevee that these ^honU he specifioally exeonted^ but leate
the .pait]9 to hia reundy At biw $ that, ini the present
the deci0um^ an^eaecution of these, articles might
a dieifdMfiaenof.a kirfnl heir, and settle the estate upon
anch. issue as, though bom in wndtack^ mij^ .yet really and
in fiMst/be.illqcitimate. .For suppose! that ULtUaoasey after
the separation^ there had been a son bonij woidd this court
hayedeoneed^i settlement to ha^e been, made whereby snel^
son.shouUi have been intiiledi? tAnd yet. thia. would plainly
have, been: the. consequsnee, since snch son. being bora in
wedlod^ must have taken by. virtne of Ae settkn\eat;*tbaft
indeed^whereAseparatioiii.has been io pursuance of n di«-
Toree^ the courta at law wiU.presume.that the hnsbsaad and
wife hateUved sepacately in obedienoe to the sentence : bnt
in the case of a voluntary separation only, the fanabnnd'a
access to the wife .shall be taken, for granted^^and a child
bom shall be eonstrued legitimate^ andrno evidence admitted
to the contrary } according to the distinotion in. 1 Salk^ 123«
at the same timeit may be notorious to every one that such
child was. not begotten by the hnsband; that in theprinoi^
pal case it was in proof, that the piainttfF ^ elc^ from the
deCeodaot her husband, and went away with one Jamm
Jienkins, to a cottage about three miles from whei« her hu»-:
band lived, since which there had been no pretenoe. of any
irccMMJliation, so that this was a bar of dowen 1 Insi^ 32.
1 MoU. Ahr. 680. And if in a court of law, the wife be-
having in this Bumner, would not be helped to her dower,
which is supposed to be her bread and subaisteooe, tdiy
should equity assist snch a woman so as to cause any arti-^
des to be p€9:{brmed in her fiivour, which is a matter always
left to the discretion of the court? That the wife in the
present case had her remedy at law upon an action of cove-

£ Vl% ] nant to be brought in the name of the trustees:, but it
might well be doubted, whether he had any remedy agunst
the wife» in.lr^gsvd at the 4ime of the marriagle she was an
in£uit,.and [G] her covenant with the trusteesy would hardly
bind her at law.

[G] And yet it feesn, that where a feme infant seised iniee covenants with
the consent of her (uardiansy . in.consldetatioaof 4 aettleiaettty lo convey bar in*

It iraa admitfedi had. there been an a^m^ jakrtm: VMi» Sumxw
upon the wtfe^ ao as to have. ¥iQ0to<l.. a fixe4 legal. ^(wte in ^
her, that ' oould not have been forfeited by the wife'a eloper
meat I but vhcra the matter Jefitedonly i^n artid€ii9> ^nd
the wife had do ranedjr but by brwging a HU bf tbe«pp-i *
cific pcfffomanee thereof 9 here a eaurti f4.^i9»fji mght^ wi$l^
the -gieateat reaaon. and justice . rafaeQi to: ]fii$A * 9k , helpipg
hand; niight well deny that aaeiitaMe whieh m a,caee.of
conuBon astidtee, and in a fair and. boneatr cause,. they ftre
rea^ to affSrad the partiea : that it had. uideiQd hfW^a) saiAs (') ^^ N<7«
that> adnlteny • is no bar of dower ^ and probfibly wit ia not»
where the hoflband and wife contiBiie:to.eohaUti but ,i|o
boohs say, that- where the wife elopes with, naoth^r.iyiaB ia
adidtary, (as in: the present ease) this isnota bav of dowen
And surely, if it be a bar to a recovery nt. law> it is atflea^t
eqoidty ^reasonable it should be so, with reqve^et to.wy.aid
8ou^.in»eqaity;apon articles .for the wile's provision,. .

Furlber s it was said tO:be vaterial ^ that* an sueh case pf
elopement of tiie wife, nothing oouU restore ;the^wifa to her
dower, but the reconciliation of the httsband.) that it waa
not sufficient^ so as ta intitle her to her doweri that she [ 373 J
could. lecriminale, or say, her husband was guilty of the like
offenee, for nothng could avail her as to this^ but the (a)
forgiveness of die injured husband* Very observable also«ia
the differenofe winch the law nudses, where this offence of
adultery is conmitted by the husband^ and. where by the
wife. In the former eas^ where the husband goes away,
from the Wife, and Uvea with another woman in adultery,
this is no bar to the husband's being tenant by the curte9y :.
but on the wife's leaving her husband, and eloping with , an
adidterer, she thereby forfeits her dower. Hie reason of
which may be, for that the consequence of such crime in the
wife b worse to the husband's feaoily, by making the child-,
ren which she may have by the adulterer inheritable to the
husband's estate, to the prejudice of the next heir : whereas
the husband's childr^a begotten on another woman are inca-
pable of bringing that mischief on a femily^.or injuring jthe

heritanee ts her husband ; if thit be done in oonsideralion of ,a eampetent settle-
nwDt) equity will execute the agreement^ though no action would lie at law to
recover damages. See vol. 2. 244. Cannel v. Buckle*

(a) See Dyer 106. Lady Pozeys^s case, where a reconciliation by the has*
band, after the wife's going away with the aduMerer, is specially pleaded^ and
the plea allowed.

«7S De Term. Paschcd, 173*.

SioKET next legiilmate heir; that all this was greatly aggravated m
^ ^' the principal case^ by reason of the near alliance which Mr.
Sidney had to a peerage^ to an ancient illustrioas peerage,
attended with a suitable estate^ being only brother and pre*
sumptive heir to the Earl of X^cester, at present a bachelor ;
80 that, as it was apprehended, the matter of recrinunatkniy
though the principal ground of his Honor's decree, was not
sufficient to warrant the same.

ObfecL But it has been objected below, that the husband
has not by his answer put this matter of adultery in issue, it
being only said, that the wife had withdrawn herself from
her husband, lived separately, and very much misbehaved
[ 374 ] herself : all which she might do, and not be guilty of adul-
tery, since there may be several acts of misbehaviour in a
vnfe besides that of adultery.

JResp. The wife could not but be sensible of what nature
her misbehaviour was j this must be best known to herself:
and it was the kindness and tenderness which the husband
had for the character of his vnfe, not to suffer these great
stains upon her reputation to be registered upon record, to
the perpetual infamy of herself and fEunily; and therefor
before he should go so for, the husband might well hope his
vnfe would repent of her fault, and put a stop to this so un*
seasonable a suit ; and it is a sad excuse made on behalf of
the virife, to say the husband, who had just reason to charge
her in the plainest and most distinct terms with this infa-
mous crime of adultery, has in tenderness to her forborne to
do so, and now she wiU take advantage of it ; thus with
equal art and ingratitude turning the kindness that has been
shewn her against him who shewed it.

2d ObfeeL But supposing this crime to have been ever so
sufficiently set forth, yet this^court cannot judge of adultery,
or in any sort puhish it, which is proper only for the spiritual
court.

Resp. Where things of this nature are incidentally mixed
with others, the courts of law (and much more of equity)
may take notice of them : thus the courts of law, where .the
wife's elopement vrith the adulterer is pleaded in bar of
dower, must try such plea : and as they may do it in that
case, what should hinder this court from doing the like in
.[ 275 ]. the present ? So the trial of a marriage, which is as much
of a spiritual cognisance as any thing can be, is determinable
at law, where it comes incidentally in question.

De Term. Pascha, 1734.

37S

3«f Obftct. If the defendant insists upon this^ that the Sidnet
plaintiff^ the wife^ ought not to have aid upon these articles > q ^'
then on the other hand he himself is not to expect any aid or
assistsmce ih respect thereof.-

Hesp. All this may be admitted; and Mr. Sidney, the
husband, will be in a better condition without the articles,
than with them ; thus, independent of the articles, he will be
entitled to the rents and profits, and wiU h^ve a power to sell
all the timber from ofF his wife's estate to his own use.

Lastly, It was observed that the husband was not plaintiff
in this cause, but the wife, and where she has thought fit to
apply in a cause of turpitude, as a court of equity has fre-
quently been resembled to a fountain distributing its relief
through .pure and clear streams, so it was hoped that this
being a cause of a contrary nature, and consisting of several
proofs of turpitude, therefore, the court would not afford the
plaintiff the least favour or assistance whatever.

Zford Chancellor. What has been asserted of a child be- in the cue of
gotten and bom during the time of the voluntary separation mcn««^et *
of the husband and wife, (viz,) that no evidence shall be ad- *J»o>^o» ^"^^
mitted to prove the illegitimacy of such child, is now held to Beparately^^aod
be otherwise. For if a * jury find the husband had no ac- chiir^^tMsUa
cess, (jr) such child will be a bastard, according to the de- bastard, for
termination in the case of Pendrel v. PetidreL [H] As in intenSTobcdi-
the present case, at the hearing of the cause the defendant ^'^ff has been

1 . . - 1 1 .11 1 1 . t paid to the

has msisted upon what n^ight have been very penal to the sentence dar«
plamtiff his wife, (viz.) the forfeiture of her dower, the 3^4^/?^^*'
crime for which she might have incurred such a penalty, case of a yo-
ought to be plainly laid to her charge, specified and put in ratioiPaThUd
issue, (1) that she may know what to rest her defence upon: j**;®™, thb U

Secas, where the jury find the husband has had no access to his wife. If the party charges his
adversary with any thing criminal, it ought to be shewn with great plainness and certainty.
Articles to settle lauds in jointure are in nature of an actual jointure, which is not forfeited by
an elopement, like dower. f *276 J

[H] Heard before the Lord Talbot^ February 5, 1733, where the husband
and wife by consent lived separately, and a child being born, an issue was directed
to try whether the child was a bastard, and it was found a bastard, 2 Stra. 925.
And so indeed (however it happened to be overlooked by the defendant's coan-
sel) it is said at the bottom of the case cited from Salkeld / wherefore this point
h now settled for law.

(1) iVaikyns v. fVaikyns, 2 Atk. 97. Clarke v. Periam, 2 Atk. 337. (y)

fa?) See Goodrighi v. Saul^ 4 T. R.
356. Rex 1. Luffej S East. 19Z. Head
y. Head, 1 S. & S. 150. 1 Turner 138.
Banbury Peerage cagey 1 S. & S. 153.

VOL. iii«

(y) Clarke v. Turlon, 11 Ves. 240.
TVillan v. fTillan, 19 Ves. 600. Blake
V. Marnellj 2 Ba. & Be.47« iVheeUr
V. Trotter y 3 Swan. 176 n.

Vt6

De Tern. PkaekiS, 1791

i( '^

SimtET wliereas here her accusatioii is only genmd and nbeeitian^
^« amounting to little elae than that she has withdrawn herttlf
from her husband^ lived separately from, him^ and very much
misbehaved herself: nothing of which implies, that the pbun-
tiff has been guilty of adultery, much less that she has eloped
from him, and gone away with an adulterer, which alone
would bar her of her dower, supposing this were purely a
question of dower. But the articles being, that the husband
shall settle such and such lands in cerUdnty on his wife the
plaintiff, for her jointure, this is pretty much in the nature of
an actual and vested jointure ; in regard what is coyenanted
for a good consideration to be done is considered in equity
in most respects as done ; consequentiy, this is a jointure^
and not forfeitable either by adultery or an elopement. (1)
The reason of the difference why a wife, In case of an elope-
ment with an adulterer, forfeits her dower, and yet the hus-
band leaving his wife, and living with another woman, does
not forfeit his tenancy by the curtesy, is, because the statute
of West 3. cap. 34. does by express words, under these * m^
tefy, as a wUe cumstances, create a forfeiture of dower : but there is no act
doim by^ inflicting, in the other case, the forfeiture of a tenancy by
elopeineBt^&c. the curtesy.

[♦277 1 • -J

*'' J As to the recrimination appearing in the proofs^ this does

not seem to me so much to affect the case. Indeed, with re-
gard to the evidence of the crime in the wife, there seems to
be sufficient to convince any third person that she is not in*
nocent : but the same not being put in issue in the cause, I
cannot judge of it. Affirm the decree, and let the husband
perform his marriage articles, and account for the timber
which he has cut on the wife's estate contrary to the articles.
The costs to go out of the estate. (2)

Whyabof-
band does not
forfeit bis te-
nancy by the
cnrteiy OK
leaving his
wife, and Hy-
ing in adul

% (1 ) In Biouni V. JVinier^ and Winter
V. Blount^ July 19, 1781, the original
bill was filed by trastees in marriage
articles and the children of the mar-
riage, against the husband and wife,
Snd the cross bill was filed by the hus-
band agdnst the wife and children —
the original bill prayed a performance
of the articles, and the husband by his
answer to the original bill and by the
crpss bill resisted the performance so

far as the articles made a provisioD for
the wife, alleging and proving in the
cross cause, that she lifed separate from
him in adultery. The conrt was of
opinion that this was not a reason for
non-performance of the articles as to
the wife, and made a decree accordingly
in the original cause, and dismissed tbe
cross bill without costs. Reg. Lib. A.
1780. foL 550. (z)
(2) Reg. Lib. B. 1733. foL 211.

(z) BaU V. Montgomery^ 4 Bro«
C. C. 339. S. C. 2 Ves. Jun. 19L
Seagrave v. Seagrave^ 13 Yes. 439.

J^ee t. Leis^ 1 Dick, 321. Bvchanam
V. Buchananj 1 Ba, ft Be. 203.

^ tr

/ Ji^'

Xte Taw, Pfl»cA<P, 17S4. 271

JOHNSON V, 0GIL9Y et al'. Case 6&

Tfls bill waa for a specific perfonnaooe of an agseement) on , Lord
thiB caii^ : Mairgaret Quirteo and the plaintiff Boberi Jobn^ Chancellor
sony having some differences as to four freehold houses in * Talbot.
SUveT'Streety Lamdon; upon compromising those^ differences, \^^^^^ *
it was agreed between tbem^ that the said Margaret Qumeo An attorney*
and JRcbert Johntan should join in a fine and recovery, nvhich ^^ ^f y^
should be^ aa to two of the houses, to the use of Margaret ^^^^^^ ^^
Qidnw and her heirs, and as to the other two houses^ to the mites to my
use of the plaintiff, Robert Johnson, and his heirs ; which p{||^ntiff ; this
fine and recovery were accordingly levied and suffered. beiog ^ne by

After this Margaret Quineo pretended she was then a of\be cUen^
fen»e covert, and married to the defendant Ogilfy ; where- *^« ^^^
upon * Robert Johnson brought a bill against Ogilby and his only the client,
wife, to discover whether she was married, when she levied ^J^ey Sd
the fine, and suffered the recovery, and to be relieved against no authority
the fiwid. To which bill the defendants, Ogilby and his to make this
wife, put in their answer insisting on her being then a feme engagement.
covert, and that she was not bound by such fine and re- L ' J
covery. Thereupon the plaintiff Johnson preferred a biU of
indictment against the defendant Margaret for a cheat, and
for the fraud in levying a fine, and suflbring a recovery, at
the court of common pleas, as a feme sole, when at the same
time she was under coverture.

The indictment being found, upon not guilty pleaded, was
brought to a trial: but just before the trial was to have
come on, the parties came to an agreement, that the plaintiff
should assign over his right to the premises, and the defend-
ant pay the plaintiff 580/. and one Mr. Heaton^ who was the
defendant's attorney on this indictment alone, signed the
agreement, for and on the behalf of his clients, Ogilby and
his wife ; Johnson also, signed the agreement, which was
left in the hands of one Mr. Callard, a third person; and the
defendant Margaret wa^ hereupon acquitted for want of
liroaecution.

Afterwards the money not being paid, the plaintiff John^
son brought his bill against Ogilby and his wife, and Mr.
Heaton the attorney; and it was insisted, that Heaton, by
signing this agreement^ was become personally liable, and

S78

J)e Term. Pascka, 1734.

Johnson

Ogilbt.

had taken^ apon himself, as a surety for his client, to pay the
money ; that as an attorney could (it must be admitted) un-
dertake for his client, so here he had done it.

JLord Chancellor. The difference is^ .where the party thus
undertaking for and on the behalf of his client, has an au-
thority so to do, and where he has not. If such undertaker
has no authority, then it is a fraud, and the undertaker ought
himself to be liable (x) : but where there is such an autho-
rity given, (as here there was to the attorney) this is only
Biokenorfec- acting for another, like the case of a factor or* broker acting
for tiwir prin- for their principals, who were never held to be liable in their
Weu'^^'**' own capacities ; in which his Lordship being very clear, the
owncapwiiics. bill as to this point was dismissed, against Heaian the at-
torney, with costs.
Aluniaeqaity Then the Lord Chancellor started anodier point, (vis.)
cMpdti^^- that this was a criminal prosecution; and the agreement be-
fonnaneeofaii inor to Stifle a criminal prosecution, ( v) was therefore not to

agreement to ° * ^ \^i

pej meney in be executed in equity.

consideimtion

of iMTing stifled a prosecution for felonj ; secns, if to stop a prosecution at law for a Iraiid.

To which I answered, that it was true, in the case of a
prosecution for felony, an agreement to stifle such a prose-
cution was not lawful ; but where the indictment was for a
fraud, and the party wronged by the fraud came to an agree-
ment to be satisfied for such injury, (as in conscience be
ought to be) this was lawful, matters of fraud being cogntz-
W Vol.2. 156, 3i,ie and reUevable as well in equity (a) as at law : wherefore
this objection was no further insisted on.(l)

(1) All that appears by the Reg. B.
is this : '^ That the cause coining on to
^ be heard, &c. his Lordship declared,
^^ that the agreement in the bill men-
^ tioned is such as ought not to be
^^ carried into execution by this court,
^ and that the defendant Heai<m is

^^ noways bound thereby or affected
*' therewith ; and the plaintiff not now
^' praying a foreclosare, the bill was ta
^' be dismissed against the defendant
^^ Heatan with costs, and against the
'' other defendants without costs." Reg.
Lib. A. 1733. fol. 337.

(«) So where a solicitor opened bid-
dings in the name of an imaginary per-
son, he was ordered to stand as best
bidder at the price at which he opened

the biddings, Molesw&rik t. CJptV,
1 Dick. ^9.
(^) CoUms ▼. Blaniemy 2Wils. 347.

W^- ^ie Term. Pascha, 1734. ^ ts6

HEAD V. EGERTON.

Case 69.

Tab bill was to foreclose the defendant's equity of redemp- Lord
tion to the mortgaged premises^ and to compel the defend- Chancellor
aot to discover the title deeds relating thereto^ and to deliver *' ^^■®''*
up the said title deeds to the plaintiff^ insisting, that they asabsequent
belonged to him, as owner of the land. For which purpose ".°r*^"J^* .
the bill set forth, that one Spencer made a mortgage of the who hu pot- '
lands to the plaintiff, and that the plamtiff having a great JJ^^dlLIdsl^e
confidence in the said Spencer^ and the mortgage being exe- firstmortgaRee
cuted in lAmdon, and Spencer pretending his title deeds peiadeliTeiy
were in the country, the plaintiff lent his mortgage money ^'^^^^!
to Spencer, taking Spencer's word that he would deliver to out paying Mm
him the title deeds 5 and afterwards the said Spencer bor- Jjon^^'**^^'
rowed 2O00/. of the defendant, Doctor Egertan, on a mort-
gage of the same lands, at the same time producing and
delivering to the defendant Egerton all his title deeds,
which were perused by the defendant Egerton* s counsel, and
thereupon the title approved.

The plaintiff bringing such bill as above, the defendant
pleaded to that part of the bill which prayed a discovery and
delivery up of the title deeds ; and by his plea insisted that
Spencer made a mortgage to him of the same lands, and that
the title deeds were delivered to him by the said Spencer, in
order to support his title to the mortgage ; that he had no
notice of the prior mortgage to the plaintiff; and being thus
a mortgagee without notice, a court of equity ought not to
assist the plaintiff and take the title deeds from the defend-
ant, without ordering him to be paid his mortgage money.

Lord Chancellor. It is hard enough upon the defendant [ 281 ]
that he has lent his money upon lands subject to a prior Thefiretmort-
mortgage : but he having had no notice thereof, I wUl not thTmoii^gor
add to his hardship by taking away from him the title deeds, ^ ^^^ dg** and
unless the plaintiff will pay him his money, especially in a the mortgagor
case where the plaintiff has himself been in some measure jju^'mort-
accessory in drav^ing in the defendant to lend his money, by g^fs^* t^e pre-
permitting Spencer, the mortgagor, to keep the title deeds cond moA-**^'
in his possession, tiie delivery of which the plaintiff ought to P*'5*{-^^''^^
have insisted on when he took the mortgage. (1) deeds; the first

mortgagee is
acccuory to the drawing in of the second.

(1) It seems necessary to make out against the first mortgagee, in order to
a case of /i^aud or gro$s negligence postpone him to a second mortgagee in

De Term. Paschte, nS4^

jncMy iwhtm abe heradf' had brakm her own mfthMge coif^

^* tract ia the: moat. snored aad. tftnderi part of it; that
iBiwv* j^g^ to^artieleiv if theoourt findfr.aay bconveDieooe will

[ VI ] leault from compeUing a pofonnanoe thereof, the]r>wiU not
deevee that these ^honU he specifioally exeooted^ but kate
the ^part]9 to his renndy At biw; that. in. the present
the deoMhaf^ an>eKectttiQn of these, articlea might
adieifdbttffieen(of.a kirfolheir, and settle the estate upon
anch. issue ae, thon|^ bora in wedlock^ might .yet really and
in frctibe.illqcitimate. For suppose: that in. this ease, after
the separation, .there had been a son bom, would this court
hare deoneed^i settlement to Iumto been, made whereby snch
son.shouUi have been in^itledi tAnd yet this .would plainly
have^ been: the consequenee, since snch son. bcdng bora in
wedlock, must have taken by. virtne of Ae settknvent$.that
indeed J where A separatioiii . has been- in pursuance of n dir
Toreop . the courts at law will.presume. that the hnsbsaad and
wife hareUved separately ia obedienoe to the sentence : but
ui the case of a voluntary sepamtion only, the fauabond'a
access to the wife shall be taken for granted^>and a child
bom shall be eonstrued legitimate, andtno evidence admitted
to the contrary I according to the distinction • in. 1 Salt. 123«
at the same timeit may be notorious to.every one that snoh
child was. not begotten by the hnsband; that in the-prinoi^
pal case it was in prooi^ that the piainttfF ^ .el<^ from the
defendant her husband, and went away with one Jotnes
JimkinSf to a cottage about three miles from wheins her huar^
band lived, since which there had been no pretence, of anjr
recQaGiliatk>n, so that this was a bar of dower« 1 Inati, 32.
1 Bolt. Abr. 680. And if in a court of law, the wife be-
having in this mannec, would not be helped to her dower^
which is supposed to be her bread, and subsistence, ^y
should equity assist snch a woman so as to cause any aiti-'
cks to be pa:{brmed in her favour, which is a matter always
left to the discretion of the court? That the wife in the
present case had her remedy at law upon an action of cove*

£ 272 ] nant to be brought in the name of the trustees:, but it
might well be doubted, whether he had any. remedy agamst
the wife, in. Ir^gsrd at the ittme of the marriagie she wm an
in£snt,.and [G] her covenant with the trusteesy would hardly-
bind her at law.

[6] And yet it seeiBs, that where a feme infant seised inYee covenants with
the consent of her guardianiy . in.consldetatioaof a setUeiaenty l^ convey bar in«

It w» wbnitfed^ had. there been an aclui^ jakltWQ: vmi» Siraxv
upon the wtfe^. ao as to have* ^^rted.a fixe4> legal. ^twte in ^
her, thot • oould not haverbeoQ forfeited by the wife's elopQ>r
meat| but vfacrathe matterivontedonlyiiypnartic^^ and
the wife had do remedy but by biu^^nga hiU for the «p0-> '
cific pcfffommee thereof 9 here a oMrti.^.eq^iity, ixiight^ with
the gieateet reaaen. and justice rafaaQ/ to: ^^ - a . helpipg
hand; might well deny that aseiataooe whieh io a.case of
coHUBon avtidee, and ia a ftir and. honeat^ cause, they are
rea^ to afford the parties: that it had. indeed, biw^a) saidi MSetNoj.
thai: adnhexy • is no bar of dower ^ and probably wit is noty
where the hosband and wife contiaue. to.eohaUt.; but .i|o
boohs say, that- where the wife elopea withi aaoth/^rtman in
adnltsry, (as in: the present ease) this is not a bav.of dow^r«
And surely, if it be a bar to a recovery at> law> it is atdeaat
eqoidly reasonable it should be so, with mq»eet to wy.fud
sought in» eqoitf . apon arUdes .for the wile's provision, .

Furlhert it was said to, be awiterial ^ that* an such case pf
elopensmtof tiie wife^ nothing oould restoie.the wifato her
dower, but the reconciliation of the httsbaad.) that it was
not sufficient^ so as ta intitle her /to her dower> that she [ ^3 J
could, lecrifliinale, or say, her husband, was. guilty of the like
offenee, for ^ nothing could avail her as to this^ but the (a)
fcigiveiiess of die injured husband. Very observable also ,ia
the differenofe which the law nudses, where this oflfenee of
adoUery^ is conumtted by the husband^ and • wheie by the
wife. In the former eas^ where the husband goes away,
from the wife, and Uvea with another woman in adultery,
this ia no bar to the husband's being tenant by the curte9y :.
but on the wife's leaving her husband, and eloping with . an
adidterer, she thereby forfeita her dower, llie reaaou of
which may be, for that the consequence of such crime in the
wife ia worse to the husband's feaoily, by making the child-
ren which she may have by the adidterer inheritable to the
husband's estate, to the prejudice of the next heir : whereas
the husband's chUdr^a begotten on another woman are inca-;
pable of bringing that nuschief on a family^.or injuring the

ta her husband ; if thit be done in oonsideralioa of .a eampetent settle-
menty equity wtU execute the agreement^ thoagh no action wonld Ue at law to
recover damages. See vol. 2. 244. Cannel v. Buckle.

(a) See Dyer 106. Lady Powtfs^a ease, where a reconciliatfon by the hof*
baad, after the wife's going away with tfaeadaMsrer, is specially pleaded^ and
the plea allowed.

S8J De Term. S. Trin. 1734.

COOK V. ARNHAM.

^ ^. On an appeal from the decree at the Rolk.

Lord Onb seised in fee of some copyhold lands^ devised the same

Chancellor f^^ j^jg grandson that was his heir at law, viz, (the testator's

^ . nri ^ deceased eldest son's son) for his life, remainder to the first

CA.temp.Talb. '

35. and every other son of the grandson in tail male, successively,

ais^pU 24^^' remainder to the daughters of his grandson in tail, remain-
If a copyhold der to the testator's second son in fee ; and by the same will
younger child, devised some other lands to his said second son, and died,
^^^^^rretk' -^thout having surrendered the copyhold premises to the use

of the will, of his will.

though by the

same will there be other proyision made for the child, yet such copyhold being part of the pro-

yiaion, the court will make it good, unless in a case where the eldest son and heir is totallr

disinherited ; for the father is Judge of what is a proper provision for his child ; and thoof^h

the derise be of a copyhold to a second son, after the death of the eldest without issue, equity

will supply the want of a surrender.

The grandson, the heir at law, surrendered the copyhold to
the use of his will, and having devised them to his mother
and her heirs, died without issue. The mother disposed of
[ 284 ] the same copyhold premises from the second son, and died
about fifteen years after the grandson. Whereupon the se-
cond son brought his bill in equity, suggesting that bis
father, who devised to him these copyhold premises in re-
mainder as aforesaid, intended them as part of his provision;
and that, as equity woidd supply the want of a surrender in
such case, therefore, he prayed that the person to whom his
mother had disposed of the same, might surrender them to
the use of him (the plaintiff) in fee.

This cause was about a year since heard at the Rolls, be-
fore Sir Joseph Jekyll^ when it was objected that by tbe
same will there was some other provision made for the plain-
tiff, which was sufficient for his maintenance, and that tbe
court would not, (as was conceived) supply the want of a
surrender of a copyhold, but in a case where that was tbe
only provision ; aleo, for that this devise to the plaintiff was
too remote, it being after an estate-tail.

The Master of the Rolls held clearly as to the first point,
that tbe father was the only judge what was a proper provi-

Dt Tern. S. Trin. 17S4. «8*

ftion for any of his children ; and that> if he did not leave . Cook
his eldest son quite destitute^ though he had given a suffi- ^'

cient advancement to the second son, exclusive of the copy-
hold, yet as the copyhold was intended to be part of the.
provision for such son, the court ought to supply the want
of a surrender in his favour. But with regard to the other
objection, his Honour conceived this was too remote a de-
vise to the plaintiff to be looked upon as a provision, the
same being a devise to him after the death of the grandson
without issue male or female, which could not reasonably be
thought a provision, as in all probability it would not hap-
pen until after the plaintiff's death ; that no money could
be raised for him by a sale of so distant a remainder : also, [ 285 ]
for that the suit was commenced after so great a length of
time since the grandson's death. Wherefore his Honour
dismissed the bill.

From this decree at the Rolls, the plcuntiff, the second son,
appealed to the Lord Chancellor, before whom the matter
Was fully debated by counsel on both sides. And with re-
spect to the first point, his Lordship concurred in opinion
with the Master of the Rolls, namely, that it was not mate-
rial that by tins will the copyhold was not the sole provision
made for the second son the plaintiff, the father only being
the judge of what was a proper advancement for his child,
according to the cases of Keith v. Town$€nd, Scdk. 187«
Burtan [A] v. Floyd, decreed first by Sir John Trevor at
the Rolls, in Trinity 1712, and affirmed by the Lord Har-
court, in Michaelmas 1713, and Strudwick v. Strudmck, by
the Lord Macclesfieldy Paschie, 1720. And it would create
the greatest uncertainty imaginable, if the court should on
these occasions enter minutely into the consideration of the

[A] It appears from the Register's book, that in this case of Burton (1) and
Lhjfd, the bill was brought {inter a/') to supply the deficiency of a surrender
left in the hands of a customary tenant, and not presented at the next court.
The uses of the surrender were, to the testator*s eldest son Andrew Burton
and the heirs male of his body, and for want of such issue, to the plaintiff Cor^
neliui Burtottj the secondson, aud the heirs mule of his body, remainder over ;
so that, as in the principal case, the plaintiff claimed a remainder expectant on
an estate-tail ; and was also, as appears by the pleadings, otherwise provided for
by the said testator. The cause was heard before his Honor, 3 July, 1712, who
decreed for the plaintiff ;^and on the 14th of November, 1713, that decree was on
an appeal affirmed by the Lord Chancellor. (2)
*' — — — -

(l)6Vin. 56. pi. 20.

(2) And again ou an appeal to the Lords, 1 Bro. P. C« 544.

t9& Be Term. & Trin. 1734.

Coo& fuanium of the proi»iftioD given by the parent : that m dl
. ^' CBsefl of this kind what comes from the parent is looked
apon as a debt by DAIaue^ and may be resembled to « copy-
hold being devised for payment of debts, where the want of
[ ^6 ] a surrender is ever supplied ; that the case might have been
otherwise, had the heir at law been totsdly disinherited. (1)

But with relatk)ti to the other point, (vu.) whether eqoity
should supply the want of a surrender in this case of acopy«
hold given to the {di^tiff^ the second son, after the grand-
son's death without issue, hi0 Lordship differed in opioion
from the Master of the Rolls ; for that^ taking it for gtanted
(as it must be) that equity wUl supply the want of a surrender
in the case of a devise of a copyhold to a younger child, he
was unwilling, he said, to tnake any new unnecessary or re*
fined distinctions, which would be to render the profession
of the law a matter (a) of memory rather than of reason and
judgment. That M far was plain: the devise of the
copyhold in the present ease to the younger son, Uiough re-
mote, yet might be for his benefit and advancement. Every
limitation allowed by the law to be. made is of some value,
else it would be absurd to allow it. Suppose the father, in
limiting the devise now in question, had added, that the
same was intended for the provision of the devisee, would it
be reasonable for the person who was to judge of and ex-
pound the will, to say, it was not for the provision of the
devisee, when the testator himself had said the contrary.

Now, though these words, for his provision^ are n6t ex-
pressed in the will; yet they seem implied ; et expressio
eorum ques tacith insunt nihil operatur. Suppose the devise
to the younger son had been qf/er one life, there would then
have been no doubt about supplying the want of a surrender.
Suppose it had been after two, three, or four lives, where
[ 287 ] must we have fixed our bounds ? Suppose all the rest of the
testator's estate had been settled, so that he had had no
other part left at liberty, but such a remainder after one or
two lives, or after a death without issue ; and he had devised
this remainder or reversion^ as an advancement to his younger
son, otherwise unprovided for, and afterwards this remainder,
remote as it had been, should fall into possession, as in the

(a) See the Lord Comperes argament, when he gave judgment in the case of
Newcomen v. Barkham^ % Vern. 733.

(1) Vide WatU v. BtOka^ ante, 1 vol. 60.

De Term. S. Trin. 1734.

pMsent eBM ; surely the cMmrt woM han^ stippHed die want Coox
of a miireader ; that what seemed tb have created a ^ffievilty ^*

m fliefte caaea mm, an uivwlkHiignefla to lAke Irem the hrir *^^^*'
an estate vested in hka by act cf kiir : 1)ut if aueh defect
would be supplied^ wh^re the whrie - estate of the copyhold
is given awi^ in poseession from the eldest to tfa^ youngest
SSD, will not eqnitjr do this d/bfftofi, when but party when a
remote reversion only is disposed of irom the heir^ and he
consequently less prejudiced ? Besides, here^ on the grand-
son's dying without issue, the plauitijff, the second son, be-
came heir to the testator; so that no heir would be disin-
herited by supplying the want of this siurrender. That as to
the objection of the length of time winch had incurred be-
tween the death of the grandson without issue, and the
brining of the bill, it had been offered by way of excuse,
that the plaintiff had spent a good deal of time in inqniving
into and searching the const leUs, in eidsf t» And out a siur- j^^|, of tio*
render to the use of the will ; and though this was but a which i^ nKt
slight exoose, yet the length of time was Bot above fourteen ^nt^s^noc
years, which, as h would not bar an ejectment, so neither •>» « ^^ ^
could it bar a bill in equity, (a) [B] (2) i^ol. 270.

[33 On a demurrer to a bill to redeem a stale mortgage, where the mortgagee
appeared hj the bill to have been in possession above twenty years ; the court
held the defendant need not plead the length of time, bnt might demur ; and
that no redemption should be allowed in snch case, unless there was an excuse
bj reason of imprisonment, infancy, or coverture, or bj having been beyond sea;
anB not by having absconded, which is an avoiding or retarding of justice : that
there did not seem to be any certain time when the length of possession of the
mortgagee should bar the mortgagor's right of redemption ; but as twenty years
would bar an entry or ejectment, abstracted from the excuses above mentioned,
there was the same reason for allowing it to bar a redemption, (z?) (1) And the

(1) 5tfd^rtMFrtf, Whether this can be Beckford v. Ciose, cited in Earl of

takenadvantageof by way of i/emurrer. Deloraine v. Browfij 3 Bro. C. C.

Vide Frazer v. Afoorj Bunb. 54. 644. In Edicll v. Buchanan^ in Cha.

^ggas V. Pickereliy 3 Atk. 225. 11th Marchy 1793, Lord Chancellor

(w) It is now decided that 20 years'
possession by a mortgagee will, primA
Jfadcy bar a riglit of redenpthm. Bon^
ncy V. Ridgardy 1 Cox 149. WhUing
v. JVhitey 2 Cox 290.; and Coop. 1.
Hardy v. Reeves^ 4 Ves. 46(5. Barron
V. Martin^ 19 Yes. 331., and Coop.
191. HodleY. Healeyy 1 V. and B.
^36« Hovenden v. Lord Aiine^le^y 2
Sch. and Lef« 636. Cholmondeley v.

Clinionj 2 J. and W. 179. and 191.
Harrison v. HoUinsy 1 S. and S. 471. :
but the pocsessiott of the mortgagee
must have been of the whole estate,
and not of a part only. Rakestraw v.
Brewery Mos. 189. Sel. Ca. in Cha.
55. Burke v. Lymehy 3 Ba. and Be.
431. Blake v. Foster y 2 Ba. and Be«
573. Sed vide Lake r. Tkomaty 3
Ves. 22. ; and if the mortgagee.

888

De Term. 8. Trin. 1734.

Cook Wherefore his Lordship decreed, that the want of a but*

^' render of the copyhold to the use of this will ought to be

^"^ * supplied ; and that the defendant who claimed the premisses
under the mother should, at the plaintiff's charge, surrender
them to the use of the plaintiff and his heirs. (1)

demurrer was allowed, Jenner ▼. Tracy^ Pascha^ 1731, by the Lord King*
The same role was agreed in the case of Belch ▼• Harvey, idichaelmas, 1730, (jf)
by the Lord Talbot^ who likewise declared it to be his opiaioD, (though that
case was afterwards compromised) that whereas this court had not in general
thought proper to exceed twenty years where there was no disability, in imita-
tion of the first clause of the statute of limitations ; so after the disability re-
moved, the time fixed for prosecuting in the proviso (which is ten years) ought
in like manner to be observed.

expressed much doubt on this ques- rents and profits only from the time of
tion : but the demurrer in that case Jiling the bill, Reg. Lib. A. 1733. fol.
was over-ruled on another ground. («) 480. 2 Eq. Ca. Ab. 335. pi. M.(s)
(1) But directed the account of

do years treats his estate as a mortgage,
or admits it to be only a mortgage, re-
demption will be decreed, Whiting y.
White, ub. sup. Lake v. Thomas,
ub. sup. Hardy v. Reeves, ub. sup.
Hansard t. Hardy, 18 Yes. 455.
Hodle y. Healey, ub. sup. Hovenden ▼•
LordAnnesley, ub. sup. Reeks v. Pos"
tlethwaite. Coop. 161. Price y. Cop'
ner, 1 S. and S. 347. In a Welsh
mortgage, time is no bar to redemption,
unless the party has held oyer 20 years
aft^r the debt fully paid. Fenvoick y.
Reed, 1 Mer. 125. It seems somewhat
doubtful, whether a mortgage can be
made available against a mortgagor who
has been in possession, without ac«

knowledgment or claim for 20 years.
Leman y. Newnham, 1 Vex* Sen. 5K
Tcplis y. Baker, 2 Cox 118. BlewiU
V. Thomas, 2 Yes. Jun. 669. Christo^
phers y. Sparke, 2 J. and W. 234.

(ar) 4 Bro. C. C. 254. ; and 2 Ves.
Jun. 83. Upon the authority of the
later cases, it seems that a demurrer
woi|ld hold. Hardy v. Reeves, 4 Yes.
479. Foster v. Hodgson, 19 Yes. 180.
Hodle y. Healey, ub. sup. Hovenden
y. Lord Annesley, ub. sup.

{y) Sugd. Yend. 5th Ed. App. 22.

(«) Kidney y. Coussmaker, 12 Yes.
1 58. ; and see Bennett v. Whiteheady
ante, 2 vol. 644.

Case 72.

PIDDOCK V. BROWN. ET AL*.

Lord Onb who was made a defendant in equity was examined as.

Ghancellor ^ witness, saving Just exceptions. And it was objected to

2 Eq. Ca. Ab. the reading of his depositions, that though there could be no

397. pi. 13. decree against him, yet his answer being falsified in many

law, that where to a suit there are never so many defendants if the plaintiff cannot ^to
eridence against a defendant j be may be called as a witness for a co-defendant i and so it la
la equity*

D< Twm. 8. Trim. 1734.

1!83

tmrta of it, he nught be liable to a prosecution for perjury, Pxddock
and consequently not so indifferent with respect to the event ^*

of the cause as a witness should be ; and that this defendant
had been very active in the interest of other defendants in
the cause.

Lord Chancellor. It is a good rule at law, that when the
plaintiff has made many persons defendants, and the prin- [ 389 ]
cipal defendant calls one of the co-defendants to be a wit-
ness : if the plaintiff cannot give some (a) material evidence («} i Skin. 673.
against him, he is allowed to be a good witness, else it would
be in the power of the plaintiff to take off all the defendant's
witnesses by naming them defendants in the action ; and in
the present case I do not see how the plaintiff has any
equity against this defendant. Therefore let his depositions
be read. (1)

Secondly, It was declared by the Lord Chancellor, that A bond or
upon producing a bond or mortgage, this primd facie is a ^^^^ie «
eood evidence of a debt : but that wherever there are mani- good evidence

? • i* i> 1 • « 1 1. o • 1 i_ 1-j. of a debt: but

fest signs of fraud m the obligee, &c. m such case he ougnt in case fraud
to be put to the proof of actual payment (y) ; and though he •gJJJJ^' ^
may happen thereby to lose some part of the money really due ought to prove
to him, for want of being able to make sufficient proof ; this is ^^^^ ^'^"
but a just punishment of him for the fraud which he plainly
appears to have been guilty of, and will be a proper dis-
couragement to others from committing the like. (2)

Thirdly y An account being directed, and that all parties Tlie defendant
should be examined on interrogatories, and it appearing that manf an^to be
the plaintiff who brouirht this bill to be relieved airainst a se- examined on
curity into which he was drawn without any valuable consi- Hes; the Mas-
deration, was a weak man, and easy to be prevailed upon to ^^^^i^J^^^^

defendant's examination, leftt he should unwarily admit something against himself that was
not true.

(1) Barret f. Gore, 3 Atk. 401.
Nightingale v. Dodd, Amb. 583. (x)
(9) The bill was filed to impeach

some bonds, as obtaiued from the
plaintiff by fraud and imposition. Reg.
Lib.

(x) It is a motion of course to exa-
mine a co-defendant as a witness, saving
jost exceptions apon an allegation that
he has no interest, Lee v. Atkinson^ 2
Cox 413, which allegation is construed
.to mean no interest in the matters to
.which it is proposed to examine him.
Murray v. Shadwell, 2 V. and B. 405.
'Yet if) when the motion is made, the

court perceives an interest, it will not
make the ord^r. Anon. 18 Yes. 517.
Nor is it a motion of course after a de*
cree. Francklyn v. Colquhoun, 16 Yes*
218.

(y) Wharton v. May, 5 Yes. 27,
Vaughan v. Lloyd, cited, 5 Yes. 48. ;
and see Osmond v. Fitzroy, ante, 139*

JDeTem. 8. THn. WSfe

Bbowh^

FiBBOf « wf wd admit in his exaipinatioiii any tiling that ww 01^10%
^ how much soevec to his prejudice : it was therefore prayed,
that the court would so order it, aa that no such advantage
abould be taken of these dixnunstances.
Whereupon the court directed, that in case the defendant
[ 290 ] exhibited ultersogatories against the plainti£^ the Master
should take care to examine the plaintiff in person, and
tiiereby see that no advantage should be taken of his weak-
ness« (1)

>p^— rr-i**—— ^-— — »— <— »^m II n-^^i^pin^i^^i— ^-i^— *— ^^^■^■■^^— ^

(1) Reg. Lib. B. 1733. fbl. 489.

Zf 4.-. J. c 'V

/p.

Cms 79. COLS «, GEWONS ET AL', AND MARTIN v,

COLE ET AL'.

On « ReJuarmgfivm a Decree of the Lord ChmwtUm' SJng,

■■ t

Lord Andrew Mackean^ of London^ mercer, had a wife Caiha"
Chancellor riney and no issue^ and a nephew Martin^ who was plaintiff
Talbot. \^ ^^ cross cause. Andrew Mackean made a will, giving
rivThimfb^'" thereby, inter al\ a legacy of 500/. payable to his nephew
his nude, in MartiUj if he should survive the testator's wife Catharine j
MT^re thT^^ who, by the will, was to have the interest of this 500/. inter
te«utor'Bwife, aVy for her life, as also the principal, in case she should sur-
to be paid by ' vive the testator*s nephew Martin. Soon after which the
but^SaTtfAc *^^**^^ ^^^- 'T*^® testator's nephew Martin was a young
teatotor't wife man of about twenty-four years of age, but had led an extra*
foiSTA-andiLc vagan* life, and had been for some time in Newgate. Mrs.
legacy become Mockean^ the testator's widow, was about sixty-four years
case' tbe reft old; but as to her state of health, there was variety of

of the money pviiIptipp

tobepaia eviaence.

within a year then next. A. does rarrive the testator'^ wife, and knowa tha legacy was beeome
due to him, and being fuUy apprtaed of the whole fact, confirms the bargain : he ahaU be
boond thereby,

Martin, had oflbred to sell this, contingent legacy of 600C
which was payable to him, in case he should survive his
aunt Mackean^ to several persons^ and amongst otber9> to his

De Term^ 8. Tri$t, 173fi 290

.[ «»i ]

«dttt MuokeaMj but thty refesed to buy it. At leiigtb^ at: hit Coi.k
Aerire, Cofe^ the plaintiJEF in the orifj^l cause, and defendant p ^ ^
in the cross cause, entered into an agreement iraA Martin
lt>r the purchase of this contingent l^;acy. Gt^ie was to give
for this 500/. legacy, 100/. to be paid by 5/. per amsam^ at
every Chrlstmasy with a proviso, that if Martin shook! sur«
vive his annt Machean^ then what shonldr remain due of the
100/. should be pidd him within a year after her death ; but
if the said Martin should die in the llfeF-time of the widow
Mackeany in such case the bL per amtiun, to continue pay-
able yearly as aforesaid, until the 100/., or what should remain
due tiiereof, should be fiilly paid to the executors, adminis* ^

trators, or assigns, of the said Martin.

Martin went beyond sea; and hearing that his aunt
Mackean was dead, returned to England; but before his
return, and after his aunt's deaths the plaintiff Cole brought
his bill in this court a^^nst the executors of the testator,
Mn Mackeanj to compel them to pay tiie 500/, legacy to
him, as assignee thereof f rom JUor/tft ; and the executors*
controverted the payment, it having been assigned over by
Martin to the plaintiff Cofe, so much under the value.

Upon Martin's returning Xx^Lendon from beyond sea, he
came to the plaintiff Cole'i house, telling him, he was in<-
formed his aunt Mackean was dead, and that now the legacy
of 500/., which was before contingent, was become absolute ;
but that he the said Martin was fully satisfied with what he
had done ; and tlmt, if he had not sold the legacy to the
plaintiff Cofe, he should have disposed of it to some other
person for a less price ; and being told by the plaintiff Cohj
that he was at law with the executors of the testator, Andreto
Mackean, for the recovery of the said legacy, (they having
controverted the payment thereof to him) he (Martin)
blamed the executors for refusing to pay the legacy, saying,
he would speak to them about it, and that he was willing to [ 292 }
do any thing further to confirm the assignment, which he had
before made of the said legacy to the plaintiff Cole.

Whereupon, some short time afterwards, a deed of con-
firmation of the former assignment was prepared by the plain-
tiff ColCy and read over to Martin. At the same time the
bill brought by the plaintiff Cole for the legacy against the
executors, and their answer to the bill controverting the pay-
ment thereof, was read to Martin, who, being fully apprised
bt eveiy thinj^, did execute a deed of conftrmation of the

fsaii

De Term. 8. Trm. 1734.

^*4

[MS]

Cols fonner asaignment to Cole. Afterwards Martin brought tlik
^ ^' bill against Cole to be relieved against the assignment, and

deed of confirmation. Upon a full hearing whereof, it was
at first decreed by the Lord Sing, and afterwards upon a
rehearing that decree a£&rmed by the Lord Talbot , that there
bemg no fraud in obtuning the first assignment, which was
at a subsequent time so deliberately confirmed, therefore the
plaintiff Martin ought to be bound thereby.

It was objected, that here was a necessitous man selling
this 500/. legacy for what was not near the value^ for less
than 100/., nay, for the interest only of 100/., payable for
twenty years tcMjether ; and several cases were cited out of
Mr. VtmxnCz JReports, as also [C] some of a later date, where
reversions were bought of heirs on contingencies to be void,
if the heir should die in the lifi&-time of the ancestor, all
which purchases were set aside by this court; that as the
original bargain was unreasonable, and fraud manifestly ap-
peared on the fiice of it, so this fraud, with which it at first
began, accompanied it throughout, and was sufficient to spoil
the whole transaction. Quod ab initio non valet, iractu
temporis non convalescet.

But the Lord Talbot observed, that all those cases of heirs
were immaterial to this point ; for that the policy of the na-
tion to prevent what was a growing mischief to ancient fami-
lies, that of seducing an heir apparent frt)m a dependence on
his ancestor who probably would have supported him, and,
by feeding his extravagancies, tempting him in his bther's
life-time, to sell the reversion of that estate, which was set-
tled upon him ; forasmuch as this tended to the manifest
ruin of families ; therefore the policy of the nation thought
fit (though it at first prevailed with some [D] difficulty) to

[C] Earl of Jrglass v. Muschampe, 1 Fern. 7 5. NottY Hilly 1 Fern. 167.
Earl of Jrglass ▼. Piitj 1 Fern. 239. Bemy v. P/7/, 2 Fern. 14. See also
the case of Taisleion v. Griffith^ vol. 1. 310. siuce which was that of Curwifn v.
Milner, heard 19th of June, 1731, before the Lord King^ where aa heir of about
twenty-seven years of age, and who had a commission in the Guards, borrowed
dOOiL on condition to pay 1000/. if he surviv€*d his father and father-in-law ; bat
if he died before his father or father-in-law, then the lender to lose the 500L
The heir survived his father and father-in-law, and was relieved, thoagh after he
had paid the money, it being for fear of an execution.

[D] It appears from the Register's book, that in the case of Bemy v. Piiiy
where the defendant had supplied an heir ii^ his father's life-time with the two
several sums of 1000/. and 1000/., on condirton to have 2500/. for each, if the
heir survived his father, else the principal to ba lost ; and obtained two jodg-
ments from the platoltif of 6000/i a-piece defeaxanced for the payment oflbe Mid

UnieMontble
bamins made
witK tnhdrin
bis&ther't
life-tiiiie, re-
Ikred against,
and wbj.

J^ Term. S. Trm. 1734. fSS

put a stop to 80 mischievouB a pnctiee^ by setting aside all Cots
tfa^se bargaina with young hciifa, (1) for reversions ; but that ^*
in the principal case here was no heir concerned ; and as it r ^q^ V
was in the power of Martin, when he was returned from be-
yond sea, informed of his aunt's death^ and that the legacy
of 600/. was become absolute, to confirm this first assign-
ment, so he had done it.

His Iiordship admitted, that had all depended on the first •
assignment, he would have set it aside, as being an unrea-
sonable advantage made of a necessitous man; but feeing the
said Martin was afterwards fuUy apprised of (2) everything, A fobiequent
had the executor's answer read to him, and yet chose to exe- confirming •&
cute a deed of confirmation (y) of his former assignment : bj'**?^"^^
and since not the least fraud or surprize had appeared on the the pari^u
part of the defendant, it was, he said, too much, ior any court ^^Jl^^g^
to set all this aside. [E] (3) and «»der ao

"■ •'^ ' fraud nor sur*

prise, shiU make the bai^n good*

2500/. for each ; the Lord Nottingham on the first hearing (9 Feb. 33 Car. %}
granted relief only agaiDst the penalties ; but on a rehearing before the Lord
Jeffereyty (97 Jan. 2 Jm. 8.) though the plaintiff had been constrained, in obe*
djence to the decree, to pay the defendant 5390/. yet the fonner decree was dis^
charged, and the plaintiff ordered to be restored to the money paid ultra the
3000/. originally lent^ and the interest for the same, with interest from the time
the defendant had received it.

[£] The following anonymous case appears in another part of the reporter's
manuscript to have been determined during the first time of the Lord Cozcper^s
haying the great seal, and it seems very applicable to the case above reported*

A man was caught in bed with another*s wife; and the husband who caught
him, having a sword in his hand, was about to kill the man, who was naked, and
in the power of the husband. But upon the man's desiring the husband not to
take that advantage of him, and saying, that he would mike him reparation ;
thereupon they went into another room, where the man gave the husband a note
for 100/. payable at a certain time. After which, the money growing due, the
husband came for payment ; and the man excusing payment, gave his bond for the
money,- and afterwards brought his bill to be relieved* The Lord Camper de-

(1) VideTwUletonY.Qr{ffltkjttat»j Crowe v. Ballardy 3 Bro. C. C 117.
1 voL 310. and 1 Yes. Jun. 315. S. C. (a?)

(2) The party must be fully apprised (3) The decree was affirmed, but
of his right to be relieved against the the deposit returned to Martin. Reg.

origiiial tmasaetion. Cole v. Gibson^ Lib. A. 1733. fol. 456. Vide Earl of

1 Vex. 503' Earl of Chesterfield v. Chesterfields. Janssen^l Aik.dOl. and

Jantsen^ 1 Atk. 301, and 3 Vez. 125. 2 Vez. 125. S. C.
S. C. TagUmr v. Hochfbrty 2 Vez. 281 .

(x) S. C. ^ Cox 253, 'Roche v. (^) As to the effect of confirmation,

{fBrieUy 1 Ba. & Be. 330. Dunbar v. vide Osmond v. Fit%rojf^ ante| 131. n.

7r^ilramclr, 2 Ba. fc &e. 304r (1).

VOI«. Ill* B

S94 De Term. S. Trin, 1734.

eland, that if the matter had rested on the note, which was gained b j a mad
armedy from one naked, and hj duress, though it happened to be given in satis-
faction for the greatest injarj, (in which case, however, the utinost remedy the
law would hare given had been damages to be ascertained by a jury) he should
hate made no difficulty of granting relief; but when afterwards the plaintiff
had coolly, and without any pretence of fear or duress, entered into a bond to
the hnsband, he had thereby himself ascertained the damages, aud ought not to
be relieved.

C^ 74 TANNER v. WISE.

Rehearing from

C ^^* ]

L^d Thb testator's will was in this manner : In the name of God,
Chancellor jimen. As to all my temporal estate with which it has
Talbot? pleased God to bless me, I dispose of the same as follows : I
C^temp- T.L ^.^ ^^^^ ^^ ^^Y)U be paid; after which he disposed of
2 Eq. Ca. Ab. several pecmiiary and other personal legacies, gave 4s. per
SI worf.' [I week to a rektion for her life ; then came these words : « AH
devise aU my a ^^ ygst of my estate, goods, and chattels whatsoever, real
uZftte tL^ ^' and personal, I give to my beloved wife, whom I make my
•» t^^^^ a executrix." The testator died possessed of leases for
Sel^ V*' years, and seised of lands of inheritance in fee-simple.
^Z\^T The biU was brought by the heir at law of the testator,
wheie It is' suggesting, that the testator's widow had all the wntings
^TSflhe and tide deeds relating to the inheritance of the lands of which
r«./ of my real i-j^g testator died seised; and that those writings belonged
T^resihe^ to the heir, who was entitled to the knds. The defendant,
ISfaSdr" ""^ the widow, by her answer insisted, that aU the real estate

of the testator was by the said will devised to her in fee-

simple*

This cause was brought to a hearing before the Lord
Chancellor King, who decreed, that as the phiintiff was the
testator's heir at law, all deeds and writings rekting to any

[ M6 ]

part of the testator's estate should be brought before the
Master for the plaintiff, the heir at law, to have the (1) in-

(1) Vide Earl of St^olh v. Howard, ante, « vol. 177. BeOison v. Farrint
don, post. 303.

De Term. 8. Trin. 1734,

296

BpeAn thereof^ who should be at liberty to bring an eject- Tanner
meot ; and that the defendant who claimed under the will ^-
should not give in evidence any dormant term or incum-
brance. •

Afterwards the plaintiff, the heir at law, had a rehearing
on a petition, and objected, that here were no lands of in-
heritance by express words devised by the will; nor did it
appear, that the testator intended to pass any part of his
real estate ; that the words all my temporal estate might be
satisfied by being construed to dispose of the testator's per-
sonal estate only, particularly his leases for years, which were
in their nature temporary, and would wear out in time. And
since it was at least doubtful, whether the testator intended
hereby to pass his real estate ; by doubtful words an heir was
not to be disinherited. Besides, this case relating to a title
of land and depending entirely upon the words of a will, was
more proper to be determined in equity, than by a judge and
jury at nisi prius.

Lard Chancellor. I think thb decree is right ; and that it
was sufficient to direct, that the writings sliould be produced
before the Master, and no dormant incumbrance given in
evidence against the plaintiff. Though it seems but a slight But a slight
equity for an heir to say, he wants writings, when his title bebat law to
as heir stands in need of no writings, unless he claims ^JV^ttiniS''
under some deed of intail concealed by the widow or exe- unless he

Mif ^. claims under

<^tOf • tome deed of

intail concealed from him by the defendant.

It is true, where a title depends upon the words of a will Where a title

,-- , ,- depends on

only, I do not see but this court may determine it, as weU as the words of a
a judge and jury. * Notwithstanding which, if either party p^^rii'd'e"
has a mind to go to law, with the directions that have been terminable in
given by the decree, I will not hinder them: but if both jg^M^fury
parties are desirous to have my opinion touching the title, »' n"^ ?""■•
I am ready to give it. Upon which the counsel on both [ *207 ]
sides declaring, that they should willingly acquiesce to
the judgment of the court, his Lordship delivered his
opinion, that a fee passed by this will to the widow of the
testator.

first. For that though it had been objected, that the
words temporal, estate did more properly refer to personal
estate, and especially to leases for years, (which, compara*
tively speaking, are but of short continuance) and not to an
estate of inheritance, which is permanent, and may last for

1m Du Tem. 8. Tiin. n»k.

4L]#

Tanner ever| yet here tiila expreagion Beemed to hK9% been

^* use of in the will in oontradistinction only to the te&tator'B

eternal concerns, which every man^ at the time of making his

will, is naturally supposed to have in view; so that ttte

words temporal estate signify the same as worldly estate, or

M 2 Vein. all that a man has in the world {a), and consequently take

' in both real and personal estate.

In the next place where the testator had sud, that as to
all his temporal estate he disposed of tiie same as fidlowed ;
and, after having given several legacies, proceeded to devise
tiie rest and residue of his estate, goods, and chattels, real
and personal; these words, rest and residue, are words of
relation, and must refer to some estate before mentioned in
the will, if any such there were. Now, in this case,, there
was an estate mentioped before by the testator, (t^.) his
temporal estate, which brought it to signify the same, as if

[ 208 ] the testator had said, ^< I devise the rest and residue of all
my temporal estate,'' which, without the word hmrs, would
have sufSced to pass all his real estate. (1)

Wherefore the LordiChancellor with great clearness de-
creed, that all the real eslate did well pass by this wHl to the
testator's wife and her heirs.

(1) Vide Barry v. Bdgeworihy ante, 2 vol* 523.

Case 75. LILLY v. OSBORN.

Sir Joseph Qnb purchased a copyhold, and took a surrender of it to the
M^^^ V ^^ himself for life, remainder to the use of his wife for
the RoUff. lifo/ remainder to the use of trustees for twenty*one years^ to
2 Eq. Ca. Ab. raise 80{. for his daughter, remainder to the use of himself
One no/hi in fee. At the time of this purchase, the purchaser was no
debt, nor then trader, nor owed any debts ; but afterwards he engaged in
maket^Vo- trade, contracted debts, and about sixteen years afiteF be*
innta^ setUe- came a bankrupt. Whereupon i| ooQUoissiop was. taken out
chBd, and af- agaiu^ him ; and his wife dying^ the commissipiiers essiflped
Mlmetli'tn^er ^^^ ^^ copyhold premises^ which the asiigneas sold to tbe
and a bank- defendant^ allowing him to detain in his hands, the flttf* io

rapt ; thia let-

tlemf nt not Itabk to the bankrnpley. '

De Term. 8. Trm. 1734.

298

order to answer it to whomsoever it should be adjudged due.
And the only question was, whether this was within the
clause in die statute of 1 Jiac 1. cap. 15. sect. 5. where it is
said, ^^ that if any person which hereafter is or shall be a
^' baidirupt, shall convey, or procure, or cause to be conveyed
^ to any of his children, any lands or tenements, goods or
^ chattela,(jr) exc^t the same be purchased, conveyed, or
^^ transferred, for or upon marriage of any of his or her
^^ children, or some valuable consideration ; it shall be in the
'' power of the commissioners to dispose of the same, aa
*' if the bankrupt had been actually seised or possessed
« thereof."

And it was objected, that this came exactly within the
words, being a provision for a child, and merely voluntary,
without any consideradon, as aga&ist creditors. To which
opinion at first incUned the Master of the Rolls.

B«t afterwards, upon citing the case of Crt^p v. Prati^
Cro. Car. 549^ where it appeared that the person supposed
to be a bankrupt had settled a copyhold estate on himself,
his wife and his son, and the heirs of his sob ; and the per-
son at that time not being in debt, but a dear man, not then
so much as a trader, and the settlement being two years be-
fore he was ccmcemed in trade, and six years before any act
of banlcjnqptcy committed by him : in. that case, the court of
J3. R. {viz.) three judges against Berkeley, held it not with-
ia the act. Accordingly in the principal case, considering
the party was not so much as a trader when he made the
settlement, the Master of the Rolls was clear, that the said
settlement was not liable to the baidmiptcy.(l)

Lilly

V.
OSBORN.

[«««]

(1) But if the party be a trader at
the time of the purchase, &c« it seems
that his sohency will not protect the

transaction from the operation of the
statute. Fryer v. Ftoody 1 Bro. C. C.
l«O.Cy)

(«) Money is not within the statute, (^) Walker v. Burrotoi^ 1 Atk. 03.
Ex parte Shorland^ 7 Yes. 88. fen- Glauter v. Hewer^ S Vts. 200 & 304.
smgtan v. Chantkr^ 9 M. A( S. 10.

300 De Term. 8. Trin. 1734.

Case 76. STUDHOLME v. HODGSON et al'.

Ch^u Thb bill was to have the benefit of a contingent devise of ft

Talbot. P^^^^^^ estate secured to the plaintiff^ and for an account of

Testator de* ^^^ same. Michael Studholmey being possessed of several

vised a term long exchequer annuities^ granted by parliament for nincty-

a]l his personal nine years^ to the value of 250/. j^er annum j and having an

Sfimt *and " illegitimate daughter, the defendant Mary^ married to his

A. died during kinsman Cuthbert Hodgson, another defendant, and having

and'hismother ^^ lawful issue, and having a nephew, a brother's son, (viz,)

w^thou ^'^ ^^^ plaintiff William Studholmey made his will dated 26 July,

other child, 171 1? thereby devising to Michael Hodgson^ the son of the

dted tofiir^' defendant Hodgson and Mary his wife, all his exchequer an-

liis infancy, nuities for the residue of his term therein ; with directional

moufer wu ' ^^^ ^ ^^® proceed thereof from time to time Bhould be

*^^?°»> "»d placed out at interest, and out of such interest that Michael

child ; yet the Hodgson, the defendant's son, should be maintained and

the d«^ce ^' educated till his age of twenty-one, at which time all the

over, by di- proceed and profits thereof,'^ and the principal money so

count andTdU- p'^ced out, together with the interest thereof, should be paid

coreryofthe to the said Michael the son: but in case the said Michael

der to' secure should die before twenty-one, then the testator devised, that

It, in case the all the annuities riven to the said MichaeL should ?o to his

contingency ^ ' o

should happen, mother Mary Hodgson, and to such other child or children
as she should thereafter have, share and share alike ; and
for want thereof, to her executors, administrators, and as-
signs. He gave several leasehold houses in St. James's to
the defendant Mary Procter for her life, remamder to Michael
Hodgson, the infant son, if he lived to twenty-one ; other-
[ 301 ] wise to such other children as the said Mary Hodgson
should have, equally ; and for want of such children, then to
the said Mary his mother, her executors and administrators;
and the said testator did thereby, give a moiety of his plate to
the said Michael Hodgson the infant, and the other moiety,
together with the rest of his goods at his house at St James's,
to the defendant Mary Procter* As to his house in Dover,
he devised the same to the said Michael Hodgson the in-
fant and his heirs, and gave all the rest of his real and per-
sonal estate to the said Michael Hodgson, his heirs, execu-
tors, administrators and assigns for ever, making the said
Mary Procter executrix.

D€ Term. & Trin. 1734; ?01

20th of September VJlh^ the testator made a codicil, Studholmb
thereby giving to the defendants Cuthbert Hodgsoti and ^'

Mary his wife 50/. per annunij for their lives, and the life
of the survivor of them, to be issuing out of the said exche-
quer annuities* Also he gave them the said house in Dover
for their lives and the life of the survivor, and 50/. per
annum, out of the said exchequer annuities to the said JUarjf
Procter his executrix for her life; and reciting, that he had
by his will ^ven to the said Michael Hodgson all his ex*
chequer annuities, in case he should live to twenty-one, and
if he died before, then to his mother Mary; and also that
he had given to the said Michael Hodgson several leasehold
houses in St. Jameses, if he attained twenty-one, if not to
such other children as the said Mary Hodgson should have ;
and for want v( such, then to the said Mary, her executors,
&c. and had also given to the said Michael Hodgson and his
heirs his house at Dover, one moiety of his plate, and the [ 302 ]
residue of his real and personal estate : the testator by his
said codicil declared, that in case Michael Hodgson the son
should die before twenty-one, and tiie said Mary his mother
should die without any other children or child by the said
Cuthbert Hodgson her husband, then all the legacies and
bequests of the said annuities, houses, lands, and premises,
should go, be paid, descend, and come to the testator's ne-
phew the plaintiff fFilliam Studholme, his heirs and assigns
for ever : soon after which the testator died.

The infent son Michael Hodgson died within a few days
before his age of twenty-one ; and Mary his mother being
forty years of age, and her husband above fifty, and having
no child, the plaintiff Studholme, the devisee over, brought
his bill for an account of the said testator's personal estate,
and to have the same secured and set apart, to the end that
in case the contingency of the death of the defendant Mary
Hodgson without children should haj^en, the plaintiff might
receive the same according to the directions of the said will;
and that in the mean time the money arising from the rents
and profits of the said personal estate might be placed out
on securities, in order to wait the event of the said contin-
gency; and that all the writings relating to the real' and
leasehold estate might be brought before the Master.

For the defendants it was said, \st, that as to the lease-
hold, the exchequer annuities, and other personal estates,
the bill II as not proper ; since the plidntiff at that time bad

308 De Term. S. Trin. 1734-

Studholme not the least pretence of right, and possibly might never
^ ^' have any; nay, that it was rather to be presumed he never

would; the presumption of law being, that no one wiU die
foiihaut issue, for which reason it supposes an estate tail may
last for ever; and, therefore, if an estate should be given to
ji. and his heirs as long as B. shall have any issue of his
body, this would be a fee-simple in ji. That suppose some
[ 303 ] years hence (or very soon, as it might happen,) the defendant
Cuthberi Hodgson, by Maty his wife, should have issue,
what should become of these costs which the parties the de-
fendants will have been then unnecessarily put to? and
1 Fern. 105, SackviU v. Ayhvorth, was cited, where a bill
was brought in a lunatic's lifetime, by his devisee, to prove
his will, and to perpetuate the testimony thereof: but it was
determined, that the bill would not lie, because such devisee,
in the life of the testator, had neither jW in re nor ad rem,
had not at that time, and possibly never might have, any
sort of right; also the lunatic, the testator^ might recover
from his lunacy and make another vrill ; both which reasons
were applicable to the present case, and made agunst this
bill : for the plaintiff here had neither jt/^ in re nor ad rem,
ahd by possibility never might have any. Agun, as the
lunatic in the case cited might recover, so the devisee for
life in the principal case might have issue ; and as that bill
was, for the reasons that have been mentioned, held impro*
per^ so (it veas conceived) the present bill, on the like con-
siderations, would be deemed improper also.
WhereabiU is But by the Lord Chancellor. As to what has been ob-

DFOUffht to M- m

cure and hare jected conc^iiing the costs, these ought clearly to be paid

S^^ntSjnf ***** ^' ^^ •^"^ ^ ^^^ testator, who by his wUl has occa-

interest de- sioned the difficulties, (jr) Here is a possibility at least of a

coBta BhaU be right's coming to this contingent devisee, and it is reasonable

Swto onl*^* that all rights, such as they are, whether vested or contin-

iestator, who S^B^ should be preserved. On the death of Mary Hodgson

^^\^^ the mother, it wiU be determmed, whether tiiis right will

difficulty. ever vest or not, which has been adjudged not too remote a

distance of time. H the defendants were not to be called to

[ 304 ] UL account in their lifetime, they might waste and embezzle

every thing ; and tiiat estate which at present may be easily

accounted for, in process of time, (viz,) at the death of the

-. J*^«** ^^^Jf^ ^- ^^'' ^ ^~- ^- C- 340. Peflrson v. Peanon, 1 Sdu fr
47. Barrington v* Ttisfram, t Yes. J^ef. 1% n, .

De Term. S. THit. 1784. S04

defendant Meay Sodgson, may be impossible to be dis'- BTusROLiit
corered; by which means the devisee over may be deprived ^ ^^
ot his right, and the intentions of the testator defeated ; and
though there may be these inconveniencies on the one side)
I^ for my part, am aUe to foresee none on the other. In the
case of Staines (a) v. Maiiox^ (where the bill was for secur- («) Vol.2.42l«
ing a like contingent right) the Mastier of the Rolls made a
decree of this natare, which was affirmed by the Lord Chan-
cellor Kingy and his Lordship's decree affirmed in parlia-
ment.

The second question was, whether the devise over of the Oim deriiei a
exchequer annuities and leasehold houses, and more espe- toA.,Mii?!lL
cially of a moiety of the plate and residue of the personal ^^^^J^^
estate, was good ? B.; this if a

And it was objected, that in the case of a devise of a chat- SJ^pJStSJch*
tel real or personal to one, and if he die without issue^ the conuigcncy.
remainder over, such remainder must be admitted to be i

void ; and in the present case the devise over was, ^ if Mary
'^ the infant's mother shoidd die without any other children
'^ or child by the said Cuthbert Aodgsan ;** which words
child and %$8U€ are synonymous^ every child being an issue^
aad every issue a child. Moreover, the last devise by thA
codicil being in case Mary the mother should happen to die
without any other children or child, then to the plaintiff
Studholme and his heirs $ no estate ought to pass by those
words, but what can descend to hebs, especially since the
testator had some fee-simple estate, (viz,) the house at
Dover y which would satisfy the devise, without carrying the £ 305 J
personal estate ; that indeed, as to the exchequer annuities
and leasdiold houses, they, bring expressly devised, must
pass by the codicil to the plaintiff, in case the devise over
were good.

Sedper Cur. There can be no doubt bat that the devise
over to the plaintiff, in easel Mary the mothet should die
without any other child by her husband, is good (1) upon
that contingency ; and then, as to the question, how much
shall be comprehended therein, it is observable, that not only
the exchequer annuities and leasehold are expressly devised^
but all the premises ; and the intention of the codicil was, in
case Michael the infant son should die before twenty-one^

«•»■

i^wa»-i«i<«»^

(1) Hughes V. Saifery ante, 1 voL 534.

805 De Term. 8. Trin. 17M.

Studholms &e. that then the testator's nephew^ the plaintiff SiuMiolm^^
V' should be put in the place of the said Michael.

* The last point was, touching the intermediate interest of
the residue. And here it was insisted, that the same be-
longed to Mary the mother by a necessary implication, and
it was compared to the devise of a freehold estate to the tes-
tator's heir at law after the death of J. S. in which case it
was manifest the heir at law could not have it sooner; con-
sequently, J* S, would in the mean time be entitled to the
premises for his life. Faugh. 259. Gardiner y. Sheldon.

Sedper Cur. In the case cited the testator had declared
his intention, that the heir at law should not have it sooner;
and there the freehold could not be kept in abeyance, but
must vest in somebody ; whereas in the present case, there is
no such rule* with regard to personal estates, which may
remain in suspence. Wherefore the profits of the residue
[ 300 ] bo^ the death of Michael^ till the contingency happens, (y)
are to accumulate and be added t» the capital ; and if no
child of the defendant Mary by her husband Cuthbert, then
to go to the plaintiff. (2) [F]

[F] Thomas Green^ Esq. possessed of a large personal estate, and having a
daughter by a first wife, and a daughter by a second wife, and having no son,
bequeathed his personal estate (subject to the payment of seferal legacies) to his
daughter by his second wife, and if she should happen to die before her age of
twenty-one, or marriage, and his daughter by his first wife should have one or
more sons, he bequeathed his said personal estate unto such son as should first
attain his age 6f twenty-one ; and in case his said daughter by his first wife should
have no son that should attain the age of twenty-one, then he gave his said per-
sonal estate to J. S. The daughter by the second wife died under her age of
twenty-one, and unmarried ; the daughter by the first wife had a son, daring
whose infancy, and on whose behalf, a bill was brought (inter aP) to have the
produce of the personal estate placed out at interest, and improved for the plain-
tiff's benefit. Upon hearing the cause it was insisted, that either the plaintiff,
the infant himself, or his mother, were entitled to the intermediate profits : but
the court, agreeably to the Lord TalboVs opinion and decree in the above-men-
tioned case, did declare, that all the interest, income and profits that had arisen
or should arise from the said estate, from the death of the testator's daughter by
his second wife, ought from time to time to be accumulated, added to, and go
along with the surplus ; and that in case the plaintiff should die before his age of

(2) But the interest of the residue his personal estate. Reg. Lib. 6. 1735.
accrued in the life-time of Michael fol. 480. Vide NichoUs v. 0$bom^
Hodgson was declared to be part of ante, 2 vol. 419.

(y) See Taylor v. Johnson^ ante, 2 vol. 500 n. (1). Thellusson v. fVoodfordy
4 Ves. 330.

De Term. & Trin. 1734: 30&

twpnty-ooe, the interest and income, together with the turplus, ought to go and
belong to such person and persons as should be entitled thereto, according to the
directions and contingencies mentioned in the testator's will. Green Y. Ekinty
heard before the Lord Hardwickey December 69 1743. 2 Atk. 473.

TOURVILLE V. NAISH. Case 77.

A. PURCHASED an estate, and having paid down part of the Lord
purchase money, gave bond for the residue. The plaintiff Chancellor
had an equitable lien on the purchased premises, of which
the defendant alleged he had no notice at the time of making poTrhases an
his purchase, but was apprised thereof before payment of the ^^^' J*^
money due on the bond. And it was contended, that this bond to pay
notice was not material, since the giving the bond was as ]^l ^^j;
payment ; and the purchaser, after he had given his bond for i^otice of an
payment of the purchase money, is bound in all events to cumbrancebe-
proceed, and cannot plead at law that there is an equitable ^^^^^^^
incumbrance on his purchased premises. thongb after

Lord Chancellor. If the person who has a lien in equity on gi^cient.
the premises, gives notice before actual payment of the pur-
chase money,(l) it is sufficient; and though the purchaser
has no remedy at law against the payment of the residue,
for which be gave his bond, yet he would be entitled to relief
in equity, on bringing his bill, and shewing, that though he
has given his bond for payment of the residue of his purchase
m6ney, yet, now he has notice of an incumbrance, under
which circumstances the court would stop payment of the
money due on the bond. This the Lord Chancellor declared,
though in the principal case there was proof of a notice pre-
cedent to the purchase, by a letter read to the purchaser,
mentioning the equitable lien on the premises. r 3og j

Also in this case there were two executors that were Where tbe
moreover residuary legatees ; and one of them, for a valuable isoiSya'clkoio
consideration, assigned over part of his residuary share to •J '^ u° v*

tssignment be without notice ; yet as no legal estate passes, qui prior eat in temporeypoUor est
injure.

(1) So, Story v. Lord Windsor ^ 2 of the conveyance, though the purchase-
Atk. 630. Hardingham v. Nichoils, 3 money be actually paid. Wigg v*
Atk. 304.(x) Or before the execution tVigg^ 1 Atk. 384.

(«) Maundrell ▼. Maundrelly 10 Yes. 271. TayUfr v. Bakery 5 Price 300.

308 D€ Tenn. & Trin. 1734.

Toui^YiixE «71 N., after wliich for a ralnable conaidenKdon likewise^ he

^ asaigned over hia whole reaiduarjr share to the other executor

^^^^* . atid reaidoary legatee^ who (aa it waa aaid) had no notice of

the former asaignment.

If there betwo Whereupon it waa inaiated^ that thia legacy of the surplus

wh? ueldM ^^^ A ^^^ ^ actiony good only in equity^ and not at law ;

residuary le- in which caac the assignment that waa (a) prior in time must

one of them, take place, consequently, the assignment made to •/• N.

^«mS^' would prevail.

aiugiit pert of hie residaam to A., and afterwards, for a TaliiaUe conrideration, assigns Us
whole residnnm to the other eoieentor { if both are hot ehoees en aetioD» the firtt assignitfat
must take place. (a) See ?ol. 2, 496. Bsace v. Duchess of Marlborough.

To which it waa anawered, that though a lq;acy be a chose
en action^ yet, when it ia aaaigned to an executor, (aa the
hat aasignment waa) he, having a remedy at law, ia in a dif-
ferent aituation firom a third person.

liord Chancellor. I do not see any difference ; for the
thing aasigned ia stall but a chose en action, which the exe-
cutor himself cannot come at^ unless by action or auit, either
in law or equity.

It seems, if it had been a mortgage made to the testator,
and aaaigned by one of the executors to the other, the latter
[ 309] might have entered ; but in the principal case the aaaignment
waa but of 12002. due upon all the mortgages made to the
testator from A. B. the father, and A* B. the aon, which
not being recoverable otherwiae than by a suit in equity, waa

clearly a chose en action.{l)

— ^_^^____^^_^,^— _^ ■■■■■ ^ - >

(1) Reg. Lib. B. 1738. foL 461. by the name of TousvUle v. S^ebmrn*

^(ise 78- WYCH v. EAST INDIA COMPANY.

Lord The l&ast India company were bound by contract to make
ChaaceUor an allowance of two rupees per cent, to the plaintiff's intes-
* tate, for which the plaintiff, the administrator de bonis non.
adm^^^r^ of hls father, brought a bill. The intestate, with idiom the
u hiS^r ^^ company made the contract, was then beyond sea, and there
negiecto tosne died, leaving an infant son of tender years. Upon the death
years; t^ ^^ ^^ intestate, administration was granted to A. until the

•tatvia of Umitilless shaU bkad Use iBfant.

Dt Term. 8. Trin. I7M. '909

laid son should come to twenty-one^ ad umm et commodum Wtch
of the in&nt^ who at that time was about — — — years of ^

age. The administrator in trust for the infant never com- Company.
menced any suit on this contract ; but the son within six
yean after his attaining twenty-one, brought this bill against
the company, who pleaded the statute of limitations, (viz.J
that the cause of action did accrue above six years before the
suit conmienced.

Whereupon it was argued, that as the time did not run
agaaast the father, with whom the contract was made, be-
cause he was beyond sea, and died there ; so after the death
ot the &ther the son was an infimti and ought not to be
barred or prejndiced fay the neglect or ddEiult of bis trustee,
the admijustrator during his minority.

Lard Chancellor. The administrator during the in&ocy of [ SIO ]
the plaintiff had a rij^t to sue ; and though the ceUuy qim
lrt«f< waa an infant, yet he must be [6] bound by the tmslee'a
not sving in time; for I cannot take away the benefit of the a corpontion
statute of limitations from the company, who are in no de- ^^^^It^
fault, and are entitled to take advantage thereof as well as sutute of u-
pnvate -pmnan&i smce ^heir witnesses may die, or theu well as any
vouchers be k)st. And as to the trust, that is only between privatepenon.
the administrator and the infant, and does not affect the
covqiany. So where there is an executes in trust for an-
other, and the executor neglects (y) to bring his action
within the ^time prescribed by the statute, the ccstuy que
trusty or residuary legatee, will be barred; therefore, allaw
the plea. (1)

[6] In the case of The Earl ?. The Countenn of HufOingthnj Hii, 1719, the
Lord Chancellor Parker was of opinion, but did not then detennine the point,
that a fine and five years non-claim should, in fiivour of a purchaser, bar a trust
term, though the ^eeiujf que trust was an infknt(«)

(1) Reg. Lib. B. 1733. fol. 448.

(x) Secus if the purchaser had notice Sch. k Let 0M. Fenttand v. Stokes^

of the trust, Kennedy v. Dalyy 1 Sch. 2 Ba. & Be. 74. Sed vide Lechhtere v.

& Lef. 370. Earl of CarUiky ante, 31 5.

(y) Hovenden v. Lord Annesley^ 2

Y^ ^M ^2''1y\. J^« ^«rni. a Trm. 1734.

Case 79. WYCH v. MEAL.

Lord In a bill brought by the plaintiff against the 'EmsI India

Chancellor company^ one of the officers of the company was made a

Talbot, defendant, in order to discover some entries and orders m

rsTpi. a; The ^^ books of the company.

secretary and book-keeper of the East-India Company were made defendants to a hill for t
discovery of some entries and orders of the compuiy; the defendants demurred, for that they
might be examined as witnesses ; also because their answer cannot be read against the com-
pany; the demurrer oTcr-mledy lest there should be a failure of justice, in regard the com«
|MUiy are not liable to a prosecution for perjury, though their answer be nerer so false,

t SI 1 ] The defendant demurred, shewing for cause that it was

not so much as pretended by the bill, that he was any way
interested in the matter in question ; and that his answer, if
it were to be put in, could not be read against the company;
as the answer of one defendant [H] cannot be made use of
against the other; that the plaintiff, if he pleased, might
examine the defendant as a witness ; that by the same rea-
son, the plaintiff might make the servant of any private per-
son a defendant ; and that it was plain the plaintiff could
have no decree against the defendant, the officer of the com-
pany. [I]

Lord C/ioncellor. This is a thing of consequence, which
I do not remember to have been ever judicially determined;
1>ut so far is plain, that the plaintiff is entitled to, and ought
to have, a discovery of the matters charged in the bill. It

[H] One reason, amongst others, why the answer of one defendant cannot be
made use of against another, seems to be, because, if that were allowed, I might
make a friend co-defendant, who might put in an answer in my favour, and the
other defendant would have no opportunity of cross-examining to it. (u)

[I] It is a general rule, that no one need be made a party against whom, if
brought to a hearing, the plaintiff can have no decr^ (x) : thus a residuary
legatee need not be made a party ; and for the same reason, in a bill brought by
the creditors of a bankrupt against the assignees under the commission, the
bankrupt himself need not be made a party. By the Master of the Rolls, De
GoUt V. IVard^ HiL 1733. Though with regard to making the bankrupt a
party, it seems formerly to have been held otherwise. See 2 Vem, 32. And
however the rule laid down by the Master of the Rolls may hold in general, yet
the determination of the Lord Talbot, on the particular circumstances of the
case above reported, appears to have been founded on great reason and justice.

(ii) Morse v. Ro^alj 12 Ves. 361. S. C. stated, 2 Ves. J. 643. Lloyds.
(x) fVhiiworth v. Dootr , 1 V. & B. Lander^ 5 Mad. 383. Smith v. &io9,
545. Griffin v. Archer^ 3 Anst. 478. 3 Mad. 10.

Dd term. S. Trin. 1784.

ts a different case where a priyate person and where a com-
pany are defendants ; for llie latter can answer no otherwise
than under their common seal; and though they answer
never so fidj^ely^ still there is no remedy agidnst them for
perjury. It has been an usual thing for a plaintifiF, in order
to have a discovery, to niake the secretary, book-keeper, or
any other officers of a company, defendants, who have not
demurred, but answered ; whereas, if this demurrer should
be allowed, the officers of companies are never likely to an<-
swer again ; and though the plaintiff be entitled to a dis-
covery, he would never be able to get one, consequently,
there would be a failure of justice.

Besides, notwithstanding the answer of the defendaat the
officer cannot be read against the company, yet it may be of
use to direct the plaintiff how to draw and pen his interro-
gatories, towards obtaining a better discovery ; and since no
instance is produced, where such demurrer has-been allowed,
and it may be very mischievous and injurious to the subject,
by allowing thereof, to deprive them of that discovery, to
which in common justice they are entitled ; and as on the
^ther hand no manner of inconvenience can ensue from
obliging (1) such officers of a company to answer ; therdbre,
overrule the demurrer. (2)

Wtch
Meal.

(1) And so the practice has con- Bro. G* C. 469. Cy)
tinned, vide Moodamay v. Morton^ 1 (2) Reg. Lib. B. 173S. fol. 467*

(jf) FenUn v. Hughes, 7 Ves. 288. Margravine o/Anspach, 16 Yes. 159.
Bummer v. The Corporation^ Chip^ GibboM v. The Waterloo Bridge Corn*
penhamy 14 Ves. 245. Le Texier v. pany^ b Price 491.

^^•-^♦••-♦t.

^r./f. ie^*r»^ -^ fs.

Case 80.

EX PARTE BRUNKER.

Tarn Master of the Rolls, upon a petition ex parte, granted ^^^
a ne exeat regno against J. 8. (against whom the plaintiff ^iu^BOT?'^
Brunker had recovered a verdict at the sittings after this f^ ^^^ of ne
last term) upon strong affidavits, that the said «/. S. between ^^ r«8i>o

' * . ^ ' OUffht DO^ to

be ffnmted without a bul first file

filed*

81S De Term. S. Trin. 1734.

Es pifte tfak and ABchaelmas term th^i next, (before which tfaoe the

Brum KKR. piaiatiff could have no judgment) threatened to go beyond

sea; and this writ was granted, though no bill had been

filed, upon a precedent produced of the Lord Cowper's in

1709.
[ 313 ] And now, on motion to supersede this writ, and dischargt
the defendant, who had been taken into custody by virtae
thereof, it waa urged in support of the order at the Bolk,
that the writ of ne exeat regno was in the raster, and at
common law, and though originally a state writ, yet now was
made use of in aid of the subjects, to help them to their just
debts ; and being a writ at coounon law, it stood in no need
of the authority or interposition of this court.

Lord Chancellor. In all my experience I never knew this
writ of ne eseat regno granted, or taken out, without a [K]
bill in equity first filed. It is true, it was originally a state
writ, but for some time (though not very [X/] long) it has
been made use of in aid of the subjects, for the helping them
to justice ; but still, as cus^>m has allowed this latter use to
^ be made of it, it ought to go no further than can be war-

ranted by usage, which always has been to have a bill firrt
filed. The precedent cited in the Lord Cowpet^f^ time was
but a single one, and passed sub sikntio. Neither does it
appear, that any use was made of that writ, or that the paity
[ 314 ] defendant was ever taken upon it ^ so that thb alone is not
suffident to overturn what has been the constant settled
practice; and there is the greater reason that this writ
should be taken out and granted with caution, as it deprives
the subjects of their liberty : neither ought it to be made use
Nor where the of, where the demand is entirely at law : for there the plain-

demand u en- '

tirely At law, in regard there the plaintiff has hail.

[K] Yet see the case of Llo^d v. Card^j Precedents in Chan. 171. where a
ne exeat regno was granted on affidavits, by the Master of the Rolls (Sir John
Trevor^) in the absence of the Lord Keeper Wright^ thoagh there was no hill
in coart whereon to ground the writ ; which report of the case is warranted by
the Register's Book.

[L] Towards the latter end of the reign of King James the First, this writ
was thought proper to be granted, not only in respect of attempts prejudicial to
the King and state^ (in which caw the Lord Chancellor granted it on applica-
tin hm any of the principal secretaries, without canse shewing^ of upon sack
infonBatfen as his Lordship should think of weight) but also in the case of ia-
tosiopeTt in trade, great bankrupts in whose estates many subjects migbt be
intevested, in dneb, and other eases that did eoneem multitudes of ^ King''
iulyects. See the Lord Bacon's Ordinances^ No. 89.

De Term. S. Trin. 1734. 314

tiff has [Ml bail: and he ought not to have double bail, both Ei parte
Ht law and in equity. (1)
Whereupon the writ was superseded, and the defendant

dbcharged out of custody. (2)

[M] So held by the Lord King, in the case of Pakeman v. Cosbt/, where,
because the plaintiff had brought his action against the defendant, and had bail,
the writ was discharged. Last seal after Hilary term, 1730.

(1) So, Anon. 2 Atk. 210. (x) (2) Reg. Lib. A. 1733. fol.457.

(x) Ex parte Buncombe, 2 Dick. M^ Entire, 11 Ves. 54. Blaydes v.

S03. Crosley v. Marriott, 2 Dick. Calvert, 2 J. & W. 211. and see

609. Though in a case of account a Doners case, ante, 1 vol. 263. as to this

plaintiff is entitled to the writ, Jones writ generally.
▼. Sampsony 8 Yes. 593. Hannay v.

ANONYMOUS. Case 81.

A MOTION was made by the Attorney-General to discharge Lo^d

an order of the Master of the Rolls, for filing an original Chancellor

nunc pro tunc to make good a judgment, after a writ of Talbot.
error brouffht. The court win

^ not order the

filing an original to make good a jadgment on error broaght, without some excuse for not
filing one before ; though a slender excuse may be sufficient.

On the other side it was ui^d, that a court of law, and
much more of equity, ought to favour any thing that tended
to support a judgment, which must be supposed to have been
obtained for a just demand ; and therefore at law, if there is
any mistake in a writ of error to reverse a judgment, let the
mistake be never so trivial, yet, it being to reverse a judg-
ment, the conrt will not amend it. [N]

{]N] The statute of 8 H> 6. for the amendment of records is exclusive of a
writ of error, that going more in reversal than in affirmance of a judgment ; and
the intent of the act was, to support original judgments, and to avoid writs of
error. Carth, 368, 520. But there is a further reason to be given, why a writ
of error is in no case amendable, because it is the commission to the court, and
the court cannot amend their own commission. See Salkeld 49, Thompson v.
Crocker. - It may be likewise obserfed, as material to this purpsgii^ that, after
in nullo est erratum pleaded, the plaintiff in error cannot have a certiorari ex
debito jus^iw; and as it is discretionary in the court, they will award it in
order to amrm, but never to reverse, a judgment, or make error. Salk, 269.
Carlton v. Mortagh*

VOL. III« s

S15 De nrm. & Trin. 1734

Asioirr- Lord Chancellor. Thougk a flight excuse migfat b» Idffi-
M out. ^^Q^ ^ indace me to make an order for leave to the plaintiff
to file an original nunc pro tunc^ stiU some exease there
ought to be ; otherwise no person will file an ori^mal, until
{«) Se« foL 1. he shall have been forced (a) to it by a writ of error; and
*^^- this will be in a manner to give awa^ the small revenue of

the Crown upon original writs, which the King's courts
ought not to do. And thereupon his Lordship discharged
the Master of the Rolls's order for filing the said original;
the consequence of which was, that the judgment was re-
versed upon a writ of error. (1)

(1) Vide JPengree v. Jomn, 2 Bro. C. C. 141.

Caie 83. PUSEY v. SIR £DWARD DESBOUVRIE.

^J^^

Lord Sir Edward Desbouvrie was a freeman of London^ and pos-
Chancellor g^g^ Qf |^ ygpy great personal estate. He had a wife, with
» En r Ab ^^^™ ^^ ^^ compounded as to her customary part ; and
2J0. pi. 24, * had a son, (the defendant) to whom he had given very con«
^33> siderable sums of money, in order to enable him to trade.
He had also one daughter.
yj [ 3^^ ] The father made his will, giving {inter aV) to his daughter
Where • 10,000/., upon condition that she should release her orphan-
freemin of Agc part, together with all her claim or right to his personal
ccpteof afc a- ®^^*® ^7 virtue of the custom of the city of Londony or
cy of 10,000/. otherwise, and made his son executor, his daughter being
i^her'iSo re- ^^^t the age of twenty-three years.

commended it

to her to release her ni^ht to her orphanage part, which she does release accordingly ; if tbe
orphanage part he much 'more thin her legacy, though she were told she might elect which she
pleased ; yet, if she did not know she had a right first to enquire into the Taloe of the penooal
estate, and the quantum of her orphanage part, before she made her election ; Uiis is so mate-
rial, Uiat it may aroid her release.

After the father's death it was agreed between the daugh-
ter and her brother, that she should accept of her legacy of
10,000/. and upon the terms whereon it was given her by
her father's will, that is, she to release all her right by vir^
tue of the custom, &c. which release was accordingly pre-
pared, and before she executed it her brother informed her
that she had it in her election to have an account of her
father's personal estate and to claim her orphanage part, and
her uncle was then present. But the daughter at that time

De Term. 8. Trin. 1734. 316

dechted she wotdd accept of the legacy left her by her Puset
father, that being a sufficient provision for any young wo- t\ ^' ^
man ; and thereupon she executed the release^ being then ^^^^
about twenty-four years old^ and the brother paid to her the
10,000/. and interest. • The daughter afterwards married one
Mr. Pusey, an attorney at law, who brought a bill to set
aside this release, charging that the personal estate of which
the father died possessed was much above 100,000/., the
daughter's share of which by the custom would amount to
upwards of 40,000/.; that the mother having been com-
pounded with for her customary part, the freeman's personal
estate was to be distributed as if there was no wife, con- r 317 ]
sequently the dead man^s part was one moiety, and the
children's part the other; and that the brother, the defendant
Sir Edward Desbouvrie^ had been advanced in his father's
lifetime by his father at different times, with several [O]
great sums of money, the whole whereof would amount to a
fiiU advancement of the son : so that the plaintiff Pusey, in
right of the daughter his wife, was entitled to a moiety of
her father, the freeman's personal estate.

The defendant, the brother, pleaded this release.

Against which, on behalf of the plaintiff at first it was
argued, that as the bill was brought to set aside this release, *' '^

the defendant ought not to be admitted to plead it in bar, >

the rule being non potest adduci esceptio ejusdem rei cujus
petifur dissolution - But the Lord Chancellor here interrupted
the counsel, saying, this was every day's practice ; and that ,

otherwise no release or award could be pleaded to a bill that
was brought to set aside the same. (2;)

Then it was urged, that no computation or account had as
yet been taken of the father's personal estate, and that it

[O] With regard to the advancement of a child, it has been determined that
small inconsiderable sums occasionally given to a child cannot be deemed an
advancement, or part thereof. Thus, maintenance money, or an allowance made .
by a freeman to his son at the University, or in travelling, &c. is not to be taken
as any part of his advancement, this being only his education ; and it would
create charge and uncertainty to enquire minutely into such matters. So, pat-
ting out a child apprentice is no part of his advancement, for it is only procuring jf
the Master to keep him for seven years instead of the parent. Hender v. RosCj ^5^^^ ^
at the Rolb, Trin. 1718. But the father's buying an oj£ce for the son, though ^^/
but at will, as a gentleman pensioner's place, or a commission in the army, these
are advancements pro tanto. Norton v. Norton^ Mich* 1693^ by the Lords •
Commissioners^ RawHnson mi HiUckinSm

(0 See Loyd v. Mansell^ aute, 2 vol. 74*

318 toe Term. 8. Trin, 1734,

Pdsey brother with 30^000/., or that she knew what her righ^M i
^* that she was not apprised that, by reason of her mothet'd

TBiE. ' bemg compounded with, the children's share, instead of a
third, was a moiety ; or that her brother the defendant, be-
ing fully advanced by his father in his lifetime, this was a
bar to him of his orphanage part ; and though at law it was
said ignorantia juris non excusat, yet if any one should take
advantage of another's mistake in the law, even without any
fraudulent suggestion or practice made use of by him, it
would be against conscience so to do. And they put this case :
If a man dc- Suppose ^. should devise lands to J5. and his heirs, and B.

Yises landa in ** ...

feetoB.who should die in the life of the testator, and then the testator

of^tUVrtlto! ^^^®» ^^' ^^^^*^ *^® testator's heir, not knowing that by
and the teste- law the devise to J5. is void, (by JS.'s dyinff in the life of the

tnr'a Yiaii* talc ' ^ • j o

ing it that tlie testator) should for a trifle release his right to a valuable
,^*^ir,?' ®;" estate, to the heir at law of such devisee : surely such rc-

entltledy for a ' ^ i

trifling consi- lease would not stand good. [P] And as it was out of tne

vlya Lnd am- f^i^^^^'s power by devise or otherwise, to debar any of his

firms the estate children of that share which they are entitled to by virtue of

willrcUe^.^ ^^^ custom [Q]; so here it was somewhat hard in the father

to induce his daughter by any words in his will to give away

and release what she had an undoubted right to; and adinit-

[ 319 ] ting there was no direct fraud or misrepresentation, here

nek r^Brod*- ^^'^^^ howcver, (fl) suppressio veriy though not suggestio falsi;

rick, ivol. 239. could not be imagined the daughter intended to present her

[P] See the case of Broderick v. Broderick^ vol. i. 23D., where a devisee
under ;i will defectively executed represented the will as dulj executed, and
for a small sum gained a release from the heir ; the court set aside the release.

[Q] It has been much questioned, whether a freeman's will can any waj
operate on the orphanage part. Formerly it seems to have heen held, that a
freeman had a power to appoint by will, that if any of his children should die
within age, then such child's part should go to the surviving child or children.
1 Lev. 3^7. Hammond v. Jonesy ruled by Kelynge^ Chief Justice, at nisi
priusy and said by fVylde^ recorder of London^ to have been so adjudged in
Chancery. But latterly it has been admitted to be otherwise. See the case of
Jesson V. Essington^ Precedents in Chancery, 207. In the case of Biddle v.
Biddhy heard before the Lord Par Arer, HiL 1718, a freeman having a wife
and one child, inter aP devised the orphanage part to the child, and in case of
the child's death before twenty-one, then to go over to the testator's father ; and
it was held that this devise over was void, for that the father had nothing to do
with the child's orphanage part, which came to him by the custom, not from
the father ; and were such devise over to be good, it would be a prejudice to
the child, who (in case there were bat one child) might devise over such part
at fourteen, which would take effect were the child to die before twenty-one ;
or if he should die intestate and unmarried, it would go all to the mother as his
next of kin, and not according to the father's wiU ; or if the child should marry,
and die within age, leaving issue, the widow and issue would be destitute, were
such will to be good.

De Term. S. Trin. 1734. 3M

And in* this case, since it would not be pretended that thie
daughter could have meant to give away 30,000/. to her bro-
ther, though he had asked for it, therefore this release ought
not to be made use of in a court of equity to bar the daugh-
ter of that right which she did not know she herself had, and
much less intended to give away.

On the other side, it was said to deserve consideration,
that the father did by his will give this legacy of 10,000/. to
his daughter, upon condition that she should release aU her
right by the custom ; and though it could not be said here
was a positive injunction on the daughter to do so, yet in all
probability it was intended as a recommendation by the
father, who might think 10^000/. a reasonable and honour-
able provision for the daughter, as she herself declared she
thought it was, when she gave this release ; and the father
might be desirous that his son, who was to support his name^ .
should have the rest of his estate : that the daughter might
reasonably have a great regard for the intentions of her de-
ceased faUier, (for which she was highly to be commended,)
and might thereby be induced to comply with such inten-
tion, at the same time that she knew in strict justice there [ 320 ]
was more due to her by virtue of the custom.

That however it was plain the brother had acted in this
case without the least appearance of fraud, when he told her,
before she executed the release, that she might if she pleased
call him to account for the whole personal estate of her
father, and have her orphanage part thereof : that this being
the solemn act and deed of the party, executed by her freely
and without any sort of compulsion or misrepresentation, and
in compliance with her own father's will : and since, if the
daughter was not informed of the custom of London^ it was
her own fault, and not her brother's y £or these reasons it
was said the deed of release ought, not to be set aside.

Lord Chancellor. — I do not see that any manner of fraud
has been made use of in this case, but slill it seems hard, a
young woman should suffer for her ignorance of the law, ^
or of the custom of the city of London; or that the other
side should take advantage of such ignorance. I remember
well, that in this very case where the wife has been com-
pounded with as to her customary part, not only the counsel
have differed, but the court themselves have varied, in their
determinations. It has, for instance, been held and deter-
mined by the court, that if the husband, a freeman of Lon--

S20 Dc Term. S. TWVi. 1734:

PusEY cton, has compounded with the wife before the marriage aft

-. *• to her customary part, this being the husband's own pur-

yj^i^ chase^ he ought to have as well his wife's customary part as

Freeman of ^^^ ^^^ • ^ut now a different resolution seems to have pre-

Londoa com- vailed. VIZ. that where the wife is compounded with before

EDaDOB with
is wife for her marriage, *^it should be taken as if there was no wife, and

bSo^SS^ consequently the testator shall have one half, and the children
riagc ; it shall the Other, (a) And if the court themselves have not, till very
no wife; and lately, agreed in what shares or proportions these customary
*hai?h'^*''^ parts shall go, the daughter, surely, might be well ignorant
halfof theper- of her right, and ought not to suffer, or give others any ad-
Wsoirapower" vantage, by such her ignorance. Neither can it be inferred
the children with suflScient certainty what the father recommends in this
r *32i 1 ^^^^ ' ^^ leather seems to leave it to his daughter's option,
(a)VideBlun- ^^^^^ to cUum her Customary part, or release her right
den V, Barker, iJbercto and accept the legacy.

It is truej it appears, the son the defendant did inform the
daughter, that she was bound, either to waive the legacy
given by the father, or to release her right by the custom ;
and so far she might know, that it was in her power to accept
In Whatman- either the legacy, or orphanage part : but I hardly think she
leasing ought knew shc was entitled to have an account taken of the per-
^tw ri^hTw ^^^ estAte of her father, and first to know what her orphan-
as to be bound age part did amount to ; and that, when she should be fully
ysuc re c. ^ppj-jg^j ^f this,(j?) then, and not tiU then, she was to make
her election, which very much alters the case ; for probably
she would not have elected to accept her legacy, had she
known, or been informed, what her orphanage part amounted
unto, before she waived it, and accepted the legacy.

It would give light into this cause, to know what might be
the value of the father's personal estate at his death, and (if
the parties think fit) what was the value thereof, when the
will was made ; because it has been said to have been in-
creased by the father between the time of making his wiU and
[ 322 ] ^is death ; and also to know, what the son has received in
his father's life-time from his father for or towards his ad%
vancement.

(x) A party is always entitled to a Whistler v. fVebstety 2 Ves. Jan. 971.

clear knowledge of the funds between Kidney v. Coussmaker^ 12 Ves. 152.

which he is to elect, before he is put to Chalmers v. Storil, 2 V. & B. 226.

his election. Hender v. Rose^ ante, Salkeldy.Fernony 1 Eden, 64. Dilion

124 n. (A). Buiricke v. Broadhurst, v. Parker^ 1 Swan. 359, and n. (a)

1 Ves. Jun. 172. JVake v. IVake, 1 381. Stratford v. Powell^ 1 Ba. «c

Yes. Jan. 330. S. C. 3 Bro. C. C. 255. Be. 23.

De Term. S. THn. 17S4. MS

Tlierefore let the plea stand for an answer, sa^ng the bcr- Puiet

nefit thereof until the hearing ; and let the defendant the son |^ ^*

ftOBwer, not as to particulars, (for that I do not expect) but ^i^^^^ "
by way of computation in gross, as to thesie points. [R]

[R] It appears from the Register's book, that on the 8th of May , 1735, upon
the defendant's motion it was alleged, that the suit was agreed between the par-
ties; it was therefore prayed, that the plaintiffs bill might be dismissed without
tosts; which, on consent of the plaintiff's counsel, was ordered accordingly.

^i^^i

J^4

HASLEWOOD v. POPE. Caie M.

In this cause the following points were decreed by the Lord « .

Chancellor : — Chancellor

First, If one devises all his lands, tenements, and here- Talbot*
ditaments in DalCy and the testator is seised in fee of a manor ^ Eq- ?^o ^*
in Dale, such manor, being an hereditament in Da/e, would 259.pl! 15*.
pass by this wiU; though perhaps it might be a doubt, if a ^nd^tT
man has lands, and also a manor in Dale, of which the lands my lancis and
are not parcel, whether by the devise of all his lands in Dak, in pai^, i^
his manor vnll pass. J»^ » »"S?'

* in Dale ; the

manor, as it is an hereditament in Dale, will pass : but if I hare the manor in Dale and also
land there, not parcel of the manor, it is a question, whether the manor will psss hy devise of
al^my lands.

Secondly, If a man devises all his lands, tenements, and hold and i»]^
hereditaments in Dale, in trust to pay his debts and legacies, ^^^ l«ncis in
and the testator has some freehold and * some copyhold lands, vise^jai^y ^
there, only the freehold lands shall pass ; for his will must be L?"^ andhcre-

, * ditaments in

intended of such lands and tenements as are devisable in Dale to pay
their nature. Secus, if the testator had surrendered his ^J^my'free-
copyhold lands to the use of his will, because this shews he hoioshaUpsss^
did intend to devise his copyhold.(l) But even in the first fident; secus,
case, if the fireehold were not su£Bicient to pay his debts, ^ij^^^^"
when the testator devises all his lands in trust to pay his copyhol^dto
debts, it seems, rather than the debts should go unpaid, that ^\i\^ ^^
the copyhold shall in equity pass.(2) [ *323 ]

Thirdly, If a man devises his huids to trustees to pay all ^J^^S^te

in trust to pay sll his debts ; the bond oreditors recorer part of their debts out of the oenonal
estate ; the simple contract debts shsU be equally paid out of the real estate with the bond
debts, and the liond creditors shall bare nothing thereout, until the simple contract creditors
shall have receii^ as much from the same, as shall mske them equal in payment with tlie
bond creditors.

( 1 ) Goodwjfti.:f. QoodtByUf 1 V (iz. aM. (2) Vide Harrii v. lngted€Wf ante, &6.

323 tie Term. S. Trin. 1734.

Haslei^ood his debts^ and dies indebted by specialty and simple contract^
p ^' and the bond creditors recover part of their debts out of the

personal estate, and afterwards they apply to be paid the rest
of their bond debts out of the real estate devised for that pur-
pose ; in this case, as the testator intended all his creditors
should be equally paid their debts, the bond creditors shall
not come in upon the land, until the simple contract creditors
have received so much thereout, as to malLe them equal, and
upon the level with the bond creditors, in respect of what
they received out of the personal estate. And this the Lord
Chancellor said was what the Master of the Rolls had very
al^^ii^"^^' rightly (a) decreed on great consideration. (1)
On a deviM of Fourthly , Where one gives a specific, or even a pecuniary
debt«, a fe^- ^^S^Yi ^^^ dcviscs lands to pay his debts ; *^ if a simple con-
tee, whether tract creditor comes upon the personal estate, and exhausts

■pecific or pe» , ,

cuniaiy, shaU it SO fEUT, as to break in upon the specific or pecuniary legacy,
the^andrJf"^ these kgatees shall stand in the place of the creditors to
the simple receive their satisfaction out of the fund raised by the tes-
d?tor«*exhiiu8t ^^^ ^^T the payment of their debts. (2) But,
the personal Fifthly y Where a man dies indebted by bond, and leaves
[ *324 1 ^ personal estate, and devises lands to t/. S. in fee, and gives
If one owes specific legacies, and the creditor by bond comes on the per-
and devises bis 8onal estate to be paid his bond ; the specific legatees shall
in°fe* ^ "d ^' "^* stand in the place of the bond creditor, to charge the land
leaves a speci- devised, because the devisee of the land (i) is as much a spe-
dies^^nd thlf ^^^^ devisee as the legatee of a specific legacy.

bond creditor comes upon the specific legacy for payment of his debt ; the specific legatee ahall
not sUnd in the place of the bond creditor, to charge the land, and why. (b) Clifton o. Burt,
vol. 1. 678.

One devises all Lastly , (and which was the principal point) One be>
^tate to^his q^catl^ed all his personal estate to his daughter, then an
daughter, and infant of about seventeen, making her executrix, and devised
tate to trustees ^ ^^ lands, tenements, and hereditaments in Dale^ to trus-
In trust to pay tees, in trust to pay his debts and leiracies, and gave the sur-

debts, Ac. re- -'_,.,-* % *.,.,/ i • j i

mainder tohis plus of his lands, after pajrment of his debts, to his daughter
mf^^,.r i« tea» remainder over.(3)

over: the personal estate shall in the first place be all applied to pay the debts.

(1) Vide Car v. Countess of Burling' ^^ that they out of the rents and profits
ton, ante, 1 vol. 228. <^ or by lease mortgage or sale thereof*

(2) Vide C^/ofi v.fitir/, ante, 1 vol. '^or such part thereof as they should
678« <c think fit, should raise so much money

(3) The testator devised all his lands^ ^" as would discharge all the debts he
&c. in the counties of IV, and M. to ** should owe at his death, and interest
trustees and their heirs, ^' upon trust '^for the same, and apply the same ia

De Term. S. Trm. 1734. S34

Hereupon it was inaifited, that the daughter ahould have Haslxwoo^
the personal estate exempt from the debts^ and that the land p ^' '
which the testator devised to pay his debts should be first
applied to that purpose ; for which was cited The Abridge
ment of Cases in Equity y 2J\y Adams v. Meyrkkj a strong
case ; and likewise a case decreed at the Rolls, 20th Nov. [ 395 ]
1722, Bradnox v. Oratwick, where a man chaiged his lands
with the payment of his debts, and gave some specific lega-
cies, together with the rest of his personal estate, to his bro»
ther ; in which case, forasmuch as the specific legacies would
be exempt from the debts, as betwixt the devisee of the land
and the specific legatee ; so the court declared, they could
not sever the specific legacies from the rest of the personal
estate; and since the testator equally intended, that the
residuary legatee should have the rest of his personal estate,
as the specific legacies, therefore all the personal estate was
hel4 to be exempt from the debts.

Xorcf Chancellor, The personal estate is the (a) natural Ezpreaswordg^
fiind for payment of debts, and which as against creditors, 2^|^t,1^
unless they please, the testator cannot exempt ; but against reqidrite to
the devisee of his land he may, by appropriating his land as a penoiuaesuirt
fund for payment of his debts ; but even in that case, ac- o7dibtof "**"*
cording to the general rule, there ought to be express words (a) Seeknigltt
to exempt the personal estate from the debts, or at least ^st.'Ssa!
words very plainly (2) shewing this to have been the inten-

^^soch precedency as they shoald think ^^her sole executrix.^ Reg. Lib.

^^ fit, and after payment of his debts, (9) So French r. Chichester^ 1 Bfo«

^^that they should stand seised of such P. C. 102. Fereyet v. Robertson^

^'part of the said premises as shoald Banb.S02. Earl of Inchiquin v. Lord

^^ remain unsold to and for such person 0'Bryeii,(o) 1 Wils. 82. and Amb. 33.

^< and persons as should be entitled to S. C. Samwell v. fVake, 1 Bro. C. C.

^' his other settled estates, and if any 144. Duke of Ancaster ▼. Moyery 1

^' money remained after payment of the Bro. C. C. 454.(^) But in Bampfield

^^ debts, the same shoald be paid to l^is v. Wyndham^ Pre. Cha. 101. fVaine"

^^ daughter, or such other person as wright v. Bendlowesj 2 Vem. 718. &

^^ should be entitled to his said other Amb. 581. S.C. Stt^lefon r.Colville^

^ estates ; and he gave all his personal Ca. temp. Talb. 202. fVhaley v. Coxy

^ estate to his said daughter, and made 2 Eq. Ca. Ab. 549. Walker y. Jack'

(w) S.C. by name of Ear/ o//ficAf- fVaison v. Brickwoody 0 Ves. 447.

911m Y. French, 1 Cox 1. Tower v. Lord Rous, 18 Ves. 132.

(«) So Gray y.Minnethorpey 3 Ves. Aldridge v. Lord Wallscourty 1 Ba. &

103. Brummell v. Protheroe, 3 Ves. Be. 312. Dolman v. Weston, 1 Dick.

111. Taa y. Lord Northwicky 4 Yes. 26. M^Cleland v. Shaw, 2 Sch. &

816. Hartley v. Hurley 5 Ves. 540. Lef. 538.
Brydges v. PhilUpsy 0 Ves. 567.

^S Be Term. S. Trin 17Sf.

UAMLmwoon Hon of ilM testetor. Here the testator givea hbpenoiial
p ^* estate to his executors^ which is no more than the law does,
and is like giving the teal estate to the hdr^ which is void.
But what I duefly ground my opinion upon is, that here
the eame person is devisee of the personal^ and also devisee
of the surplus of the real estate in tail ; and I cannot ttink
it was the intention of the testator to exempt his personal
estate from his debts, for no other reason, but tiiat his
daughter might dispose thereof by her will under her age
of twenty-one, on purpose to leave the real estate of the
testator, and which was settled on herself in tail, the more
encumbered. (1)

ffon, 2 Atk. GM. Anderton v. Cooke tion of the testator appeared sufficiently

and Kyntuton v. Kynasion^ (cited) 1 clear to the court, to exempt the per-

Bro. C. C. 45C, 457. Holiday v. Boo- sonal estate.(2r)

man^ (cited) 1 Bro. C. C. 145. Webb (1) Reg. Lib. A. 1733. fol. 610.
V. Jone8y{y} 2 Bro. C. C« 60, the inten-

Cy) S.C. 1 Cox 245. . V. Blundell, 1 Mer. 193. Gittins r.

(z) Burton Y.KnowJtony 3 Yes. 107. Steele^ 1 Swan. U. Greene v. Greene^
Hancox v. JMfey^ 1 1 Yes. 179. Booile 4 Mad. 148.

Case 84. LONPON ASSaRANCE v. EAST-INDIA COMPANY.

l^^^ Tub SoUoitor-Qeneral moved to discharge a demurrer to

ChanceUor part of the plaintiff's bill, endeavouring to shew it was a

Tai^bot. frivolous demurrer'; and that, though it was but to a small

si^L^ ^^' P^^ ^^y ^^ ^^ ^^^* ^^^ notwithstanding the answer to the
If a demnrrer rest of the bill was most apparently insufficient; yet this de-
tha^iuntirs i^urrer, until argued, would ston.the plaintiffs fiom putting

bUlyandaa jfl any exceptions to the defendants' insufficient answer;
insufficie&taiH V t . i ,

flwer to the that no more was desired, than to have leave to put in ex-
tSpUditS* ceptions to the answer to the other part of the bill, other-
QMioot except^, wise the plaintiffs might be delayed from getting an answer
nrarrer u ar- '^^ ^ demurrer shoidd be argued.

V^^ Lord Chancellor. Were this res integral I can see no rea-

son why, where the defendant demurs to part only of the
plaintiff's bill, this should stay the plaintiff's putting in ex-
ceptions to the defendant's answer, as beiog msufficieiit, to

De Term. & TVm. 1734. §26

another distinct part of the same bill. Indeed, if there was Londok
any colour to doubt how far the demurrer extends, it might Assuraitce
be reasonable^ that the Master should not take upon himself g^^^ India
to determine the question, or to proceed upon the exceptions Company*
to the answer. However, seeing the course of the court is
otherwise, {y) I will not alter it ; especially in this case,
where it appears, the plaintiff has delayed himself by obtain-
ing four several orders to amend hi^ own bill ; and it not being
pretended that there is any irregularity in putting in the de-
murrer; if there be the least doubt touching the validity of |^ 327 ]
the demurrer, the pl^ntiff ought to set it down to be argued,
and not come to have it discharged upon a motion, or to go
into the merits. [S]

[S] Bat if to a bill the defendant answers as to matter of discovery, and pleads
only as to relief, the plaintiff may except to any matter of diaoovery before the
plea argued ; for that plainly no matter of discovery is covered by the plea* So
ruled by the Master of the Rolls on a motion to discharge the exceptions ; and
Mr. Vernon^ who was for the motion, did afterwards admit the coarse of the
court to be so, 14th of December^ 1719. Note also, the Lord Parker some time
before raled in the same manner, (s)

(^) A plaintiff may except before a (z) So Pigot v. StdcCy 2 Dick. 496.

plea or demarrer is argued : but by so Sidney v. Perryy 2 Dick. 602. See

doing, he admits its validity. Mitf. 3d however Baker v. PrUchard^ 9 Atlu

Ed. 256. : confirmed by Eldortj Lord 390. ; and Darnell v. Reyny^ 1 Venu

Chancellor, in Boyd v. Mills, 13 Ves. .344.
S5.

Z^t^.^.C^J/4!^S'-

328 /)e Term, S. MkhaeUs, 17^:

Case 86. TERM. S. MICHAELIS, 1734.

j^^ Charlton et al'. Creditors of Sa-^ p. . ™
Chancellor muel Low, deceased^ 5 *

Susannah Low^ Sister and Admi-^
nistratrix of the said Samuel Low^
and others^ being a Mortgagee^ ^Defendants,
and a Judgment Creditor of the
said Samuel Low^

2Eq.Ca.Ab. Hbnrt Low^ the father of Samuel, purchased a term of

463.' pi. 20*. ^^^ years in the lands in question^ and ag^^ed to give a full

470. pi. 6. consideration for the inheritance ; whereupon the vendor

ofa term for Covenanted to procure a conveyance to be made thereof to the

1000 years, vendee and his heirs.

articles to pur-
chase the inheritance^ and hj will gires 3000/. to his daughter, and makes his son executor,
and dies } tiie son assigns the term in tmst to attend the inheritance, of which he takes a
conreyance in his own name. Afterwards the son acknowledges a judgment to A., and mort-
gages the same lands to B., and dies insolrent ; A* shall first be paid his judgment, then B.
shall be paid his mortgage, and then the daughter (being administratrix to her brother) i»
entitled to her legacy of 30001. in preference to the simple contract creditors.

[ 320 ] Henry Low, the father^ died before the conveyance made^
having by his will given to his daughter, the defendant
Susannah, a legacy of 3000/., and left Samuel, his eldest son^.
executor. Samuel, the executor and heir, assigned the term
in trust to attend the inheritance intended to be by him pur-
chased, and afterwards took a conveyance of the inheritance
to himself. Subsequent to this, Samuel confessed a judg-
ment to one of the defendants, and made a mortgage of the
inheritance to. another of the defendants, without taking any
notice, or making any assignment of the old term of 100O>
years, and died insolvent.

De Term. 8. Michadis, 1734. 329

The question was, whether Susannah, the legatee of the Charlton
SOOO/., and who was the administratrix of Samuel Low her J^*
brother, was entitled to a satisfaction for her 3000/. out of
this term of 1000 years, in preference to the other incum-
brancers ; and to have it considered as equitable assets of
liow the'&ther, notwithstanding the assignment made by the
son in trust to attend the inheritance. Or, whether the judg-
ment creditor and mortgagee should have the benefit of this
term, as connected with the inheritance by the assignment
that had been made thereof, to attend the same ?

It was insisted for Susannah the legatee, that the assign-
ment by the son, though it passed the legal interest, so as to
prevent its remaining assets at law, yet it did not take away
the right of the legatee, who had a prior demand thereon,
and was at liberty to follow those assets in equity, unless
aliened for a valuable consideration, and without notice ; that
if Samuel had purchased the inheritance without having as-
signed the term, such term would not have been merged, be-
cause he would have had it in {a) autre droit j and this as- [ 330 ]
signment being only in trust for himself, should have the
same consideration as if it had continued in the father.'

Lord Chancellor. It is observable, that the testator Henry
Low the father had in effect purchased the inheritance, (2)
and the son obtained a conveyance of the inheritance, in
conformity only to the father's intentions. The term, by this
assignment made of it by Samuel the son, is become not
assets at law ; for which reason the legatee cannot pursue it
specifically, but must have her satisfoction, as for a devas^
tavity out of the executor's assets ; for, as this case stands,
the legal interest of the term being in trust for the mortgagor
at the time when the mortgage of the inheritance was made,
it was so far a fraud upon the mortgagee, as it was concealed
fflom him ) and the trustees of this term of 1000 years, which
was assigned to attend this inheritance, became trustees for
the mortgagee of the inheritance. Nay a term assigned in ^^™***^^*

Gotor in trust to attend the inheritance, shaU in equity follow all the estates created out of
it, and all incumbrances sub8i8tin|f upon it. But the term being by this metos become not
assets at law, the executor who assigned the same is liable to the creditors for a devastayit.

(a) Sapposing it to merge, it would occasion a devastavit. 8 Co. 136. 1 Inst.
264. b. 338. b.

(x) By this the term in which he had equitable estate. Ckpel r. Girdler^ 9
the legal estate became attendant upon Yes. 509.
the iRheritance in which he had an

890 De Term. S. MichadU, 113^.

Cbabiaoii trust to attend the inheritance wiU^ in equity^ follow all (1)
^' the estates created thereout, and aU the incumbrances mA*

^^^ sisting upon such inheritance ; and is so connected with it^
that equity will not suffer it to be severed to the detriment
of a bona fide purchaser j who shall have the benefit of all
interests which the mortgagor had at the time the mortgage
was. made, unless against an intermediate purchaser without
notice.

Therefore the judgment-creditor of the mortgagor must be
first satisfied, according to the priority of liens affecting the
real estate ; in the next place the mortgagee. And as the

[ 331 ] estate is to be sold for the satisfaction of creditors, though
the ^ister, who is administratrix of her brother Samuel^
claims a debt but by simple contract, on account of the
devastavit; yet having a right, as administratrix, to retain
against all creditors in equal degree, she shall consequently
retain her debt prior to all the simple contract creditors of
her brother, (2)

(1) WilUmghby v. fVilloughbi/, 1 T. R. 763.(^)
(d) Reg. Lib. A. 1734. fol. 293.

(^) S. C Amb. 282. MaundrellT. 269. Ex parte Knott, 11 Yes. 018.
MaundreUy 7 Ves, 577. 10 Ves. 259, Shine v. Gough, 1 Ba. and Be. 445.

Ann Knight, Widow of Jacob Knight^> p. . .^
Case 86. deceased, 5

Lord Jdm Knight, Esq. eldest Son of said) p. |. ,
Chancellor Jacob Knight, and others, > Defendants.

Talbot.
2Bqu C«. Ab. Thb bill was brought by the plaintiff, the widow of the said
A.^c<^eB«its Jat^oh Knight^ against the defendant John Knight^ as eldest
for himaeif son and heir of the said Jacob Knight, in order to compel*
thatajoiDtm him to rebuild and finish the pMntiff's jointure-house, and
mSTtothe'*" ^ ^^'^ satisfaction for the damage which she had sustained

met in the lettlement. The jointrew bringfl a bOl agaiiut the heir for a performance. The de*
liendant demurs, for that the executor ought to be a party; resolved, that though at law the
creditormay sue the heir only, where the heir is expressly bound ; yet as the personal eatate
ia the natural fund to pay all debts, and as the executor may make it appear tlMt he has per-
frnmed the ooTcaaati the executor niiBt be made a party la equily.

Be Term. S. Mkhaelis, 1734. 331

for want of the use thereof; and set forth, that upon th« Kniqhi^
marriage of the plaintiff, by a eetUement bearing date the ^*

10th of February 1710, Jacob Knight, the defendant's

&ther, settled the cfq>ital messuage in ; — together with

lands of 400/. per annum, in the county of Gloucester, to the
use of himself for life without waste^ renudnder to the
use of his wife for life, renudnder to the use of the
first, &c. son of the marriage in tail male successively,
with remainders over : that by the said settlement the de-
fendant's father Jacob Knight covenanted for himself and [ 833 ]
his heirs, with his said wife's trustees, that the capital mes-
suage and premisses should remain to the uses in the settle-
ment, without any act done, or to be done, by the said
Jacob Knight to the contrary : that the said Jcusob Knight,
the defendant's father, did some time afterwards pull down
great part of the said capital messuage ; and that he had issue
by the plaintiff the defendant his eldest son ; and that he after-
wards died, leaving real assets of great value to descend to hia
son the defendant : and that the plaintiff after her husband's "
death, the said capital messuage not being inhabitable, was
forced to hire another house for her habitation, and there-
fore brought this bill to compel the defendant to rebiuld or
repair the said capital messuage ; and likewise that she (the
plaintiff) might be recompensed in damages for what she had
suffered by being forced to hire another liouse in lieu of her
jointure-house.

As to such part of the bill as prayed that he should re-
build or repair so much of the said capital messuage as his
father had pulled down as aforesaid ; or which sought to be
repaired in damages for want of the use thereof; and in re-
spect of the plaintiff's being forced to hire another house in
its stead : the defendant demurred, and for cause shewed,
that there was no executor or administrator of the plaintiff's
late husband brought before the court by the bill, or made a
party thereto.

Upon the demurrer's coming on to be ai^ed before the
Lord Chancellor, it was objected, that at law, in the case of
any demand where the heir is expressly bound, the creditor
has an election to sue the heir alone, or the executors or ad-
ministrators of the debtor ; and if it be so at law, the same
rule might well be allowed to prevail in this court. Which f 333 ]
ought not to put the creditors upon tKe^ difficulty of hunting

333 JDe Term. 8. Mckaelis, 1734.

Knight after personal assets, not recoverable, in all probability,
^' without charge and expense of time ; and therefore, ag th^
heir was liable alone to answer this debt at law, so he ought
to be in equity, and might reimburse himself as well as he
could, by suing the executors or administrators of the debtor
in order thereto.

Sed Curia contra. It is true that at law the creditors may
sue the heir only, where he is expressly bound, but equity is
otherwise ; on the contrary, in equity, the creditors may sue
both the heir and the executor, which they cannot do at
law; so that the rules of law and equity are different. The
natural fund for the payment of debts is the personal estate,
and this ought to go in ease of the land. It does not appear
in the principal case, but that the executor or administrator
[A] may have made satis&ction to the plaintiff for the breach
of this covenant, which the executor, &c. might have dis-
closed to the court, had he been party to the bill.
[ 334 ] Now the court of eqidty in all cases delights to do com-

Tbe conrt of plete justice, and not by halves : as, first, to decree the heir
to do'com?*'^ ^ perform this covenant, and then to put the heir upon ano-

plete justice and not by hdret : as to make a decree against the heir, and to leave another
anil for him against the executor.

[A] In a bill brought by a mortgagee agaiust the heir of a mortgagor to
foreclose, it was objected, that the executor of the mortgagor ought to be a paity,
because it did uot appear but that he might have paid the debt. But bj the
Master of the Rolls, (in the ^sence of the Lord Chancellor,) aod Goldsborough
the Register, there is no necessity (1) for making the execator of the mortgagor
a party ; because the bill being only to foreclose the equity, the plaintiff need
only make him a party that has the equity, (viz.) the heir, and the coarse is so.
Neither is the plaintiff the mortgagee any ways bound to intermeddle with the
personal estate, or to run into an account thereof; and if the heir would have
the benefit of any payment made by the mortgagor or his execator, he must
prove it. Duncombe ▼. Hanslei/^ Pascha^ 1720. So note the diversity between
the case aboye reported of Knight ▼. Knight^ and this last ; for there the bill
was to recover satisfaction in damages for want of repairs, &c. and the personal
estate is the natnral fund for that purpose : but here the bill was not to recover
the debt, but only to bar the equity of redemption.

(1) Fell V. Browne, 2 Bro. C. C. 279. («)

(s) So though the mortgage is only Daniel ▼. Skipwithy 2 Bro. C. C. 155.

for a term of years. Bradshaw v. M'Donough v. Shewbridge, 2 Ba. and

Outranty 13 Ves. 234. But if the biU Be. 663. Christophers v. Sparke, 2 J.

be for a sale, the personal representa- and W. 229.
titre of the mortgagor must be a party.

D€ Term. S. Michadis, 1734. . - 334

ther bill agtdnst the executor to reimburse himself out of the Kxioirr
personal assets, which for aught appears to the contrary, Kkioht.
may be more than sufficient to answer the covenant ; pnd
where the executor and heir are both brought before the
court, complete justice may be done, by decreieing the exe-
cutor to perform this covenant as far as the personal assets
will extend ; the rest to be made good by the heir out of the
real assets. And here appears no difficulty or inconvenience
in bringing the executor before the court. On the contrary
it woul^ prevent a multiplicity of suits, which a court of
equity (a) ought to do, wherefore allow, the demurrer. (1) (a) Ante is;.

(1) Piunket V. Pensan, 2 Atk. 51. (y)

(^) And see Humphreyi v. Humphrcyty po8t| 349<

Case 87.

SLANNING ET AL' v. .STYLE j ET E CONTRA.

JLord
Robert Style had a wife by whom he had no issue ; and Chancellor
had three sisters, {viz,) the plaintiff Elizabeth, wife of the « f c Ab
pluntiff Slanningj the plaintiff AnUy wife of the plaintiff 65. pi. id. 156.
Pelling, and the plaintiff Hannah Style, spinster. This g^.^iM^pi.^ii.
Robert Style made his will in March 1732 ; and being seised One by will
in fee of some real estate, particularly a farm of 200/. per Sl^hoid
annum, (which he kept in his own hands) and possessed of ^o^» "* JP*.
a very plentiful personal estate, devised to his wife oO/. per household.
annum for her life, charged on his real estate,' and devised ^^"{jJ^J^aje,
.also to his wife an annuity of 40/. per annum for the life of and otiier
her mother, charged upon the residue of his personal estate, ^l^^ ^ t^
payable quarterly. The testator bequeathed to his wife his p*»»^ *!«* '^«

./ i, , ., .,1. ,1 •/• clock, if not

Silver coffee-pot, and silver tea-pot, with divers other specific fixed to the
•pieces of plate, to hold to her for life, and after her decease ^^^^t^^n^t
the same to go to his god-son Robert Style, He also by his the gunsor pis-
will gave the defendant his wife his tea-table, tea-kettle, and JJig\n "tdingt
all his pewter, brass, linen, and woollen, with all his household or shooting
goods and implements of household whatsoever in or about his r •335 n

(«) See Pratt v. Jackson^ ante, 2 to!. 303.

VOL. III. T

30<J^C^^^^

S3Q Ik Term. S. MichaeHa, llH.

St4A»in)io dtKllidg-liQiiBe, to be at hep dfaposal. All his stoek of com,
^* fuid the resMue of his pereonal estate^ he glive to his said
three aiaters, equally to be divided betwixt them^ and made
Ihem executora*

The three sistera and tiieir ha&bands brought their biB
against the widow for dxveie goods of the teetator detained
by her, wliieh were not giren her by the said will ; and the
widow preferred her hill for goods detained by the execoton,
and which (a9 was alleged) she was entitled to by the
wiU.

An^^ fisat? thb defendant the wido^ daimed the malt and
hops in the houoe, likewise all the beer and ale therein, to-
gether with the guns^ pistols, and the clock ; insisting that
these were intended by the bequest of the household goods
and implements of household, that they were goods in the
house, and necessary for the maintenance of the family.

Zford Chancellor. These things which are victuals, and

whose use is in their consumption, cannot in their common

natural sense be taken to be household goods, and pass

under that denomination ; therefore, they do not belong to

the widpw, but ought to be delivered over by ber to the

executors the residuary legatees ; neither will the guns and

pistols that were in the house, if used in riding; or shooting

of game, pass to the widow by the words household goods ^

though these may in some sense be said to be for the de-

[ 330 ] fence of the house ; but. the clock in the house, if not fixed

Whevetheuse thereto, shall be included within these words household

giv^to one goods. Moreover the widow, as to the things the use where^

for Ui^ the of ig criven her for Kfe, must sign an inventory expressing

'forii4mM«t these things to be in her custody, as given to her for life

tcwy "ewwl ^^ V» ^^ ^^^^ afterwards they are to be delivered, and remain

ji^i tM 1x9 14 to the use and benefit of the godson Robert Style.

entitM tp

f bftie things for hia life, aod that afterwarda they belong to the person in remainder. See veL !•

case.1.

The next question, was, touching the annuity of 40i. per
annum, given by this will to the widow for her mother's
life, charged upon the residue of the p^*sonal estate -, and
here, forasmuch as the personal estate was liable to be m a
short time wasted, (possibly by the husbands of the wives to
whom the testator gave the residue) and the widow by that
means to be deprived of the benefit of this annuity, which
the testator Intended should be duly secured, and paid to her
quarterly for her maintenance in aU events ; therefore it was

De .Term. S. MckaeUs, I7»k SS6

iosisted^ lint the busbaodB of the mvtB aboidd giVefiooie SuiinruNf
seeuritjrfer the payment of. tlie mne. ^^

Agviast whidh it was aaid, that there was no reason the
czeoatois, whom the testato: thought fit to intmst without
patting termB oa them, shonld be compdled to gire toy se^
eiiiitjr to the widows bat that, as he had h&Ay idtmsted
them^ she should do so too^ especially in this case^ where it
did not Bfp^BX, that tiiey or their husbands had committed
any manner of embezzlement or coliversion of the goods.

Lard Chancellor^ Generally speakings where the testates Jom mJrte^
thinks fit to repose a trusty in snch case^ ontil ^ some breach quire, that tbe
of that trast be shewn^ or at least a tendency [B] thereto^ gire security*
the court will cbntimie to intrust the same hand, withoat [' ib not usual
caning fdraay other seeurky, than what the testator has re^ '^'^^""^t,
qnircd (y) : but here the testator hnnself has charged the re- ^"Jbcwfour-
sidue of his personal estate with this annnity^ whidi^ he but where one
plainly intended should be duty and qmrterly paid^ and as t^e residuYo?
this estate appears to consist of some bonds or seeurtties. let ^'^ persoimi

**^ ' ' estate with

such part thereof be brought before Ae Master^ as may be 40/. pet annum
efficient to preserve this annoity of 40/. per anmm &v the ^^J'qo^j^

widow. terly, the exe-

cutor was or-
dered to bring before the Master snfflcient io bonds and secitrities to be set aptrt to secure this
•Miaty. [ *S37 ]

Another thing insisted upon on behalf of the defendant An husband
the widow was, that the testator allowed his first wife to dis- l^^^^

Hage^ allows tbe wife $>r her separate use, to make profit of ril butter^ eggs, pigs, poultry,
and lhut« beyoad what is used in tbe fiunily; ou( of which the wife saves 100/. which the
husband borrows, and dies; the court ^)^11 allow this agreement, to encoura^^e the wife's
frugality ; and the wife shall come in a creditor for this lOOA, especially tbcxe being no defect
of aasatfl to pay d^bts.

[B] See vol. 2. 163. Batten v. Earnley. And yet we find, that the spiritual
comrt has somethnes refused to grant tbe probate of a will to an e^ecator, wbo
has been repated a person of vn sabBtanoe, and ahsconded for debt, until he
sfaoold gi?e secaritj lor a due administration of tbe assets ; under pretence, that
the legacies, which were considerable,^ were in danger of being lost : and, that
thej might as well reject an executor, where he declines giving such security, as
where he refuses to take the oath of due administratioii, whkh is the common
practice* But the court of King's Bench has in snph case enforced the granting
of the probate by a peremptory mandamus. From the author's manuscript Im-
port of the case of The King v. Raynes. See also Salk. 299. S. C.

iy) Tayhr ▼• Allen^ 2 Atk. 213. man, ib. 143 n. Scott ▼• Becker^ 4

Anon* 12 Ves. 4. Middleton v. Dods^ Price 346. Langley t. Haake^ 5

mell^ 13 Ves. 260. Honard v. Pa- Mad;4€.
peroy 1 Mad. 142. Gladden v.^/one-

337 D$ Term. S. Michaelis, 173^.

' Slamhinci pose and make profit of all such butter, eggs, poultry, pigi/
^ ^* fruit, and other trivial matters arising £rom the said farm,,

(over and besides what was used in the family) for her own
separate use, calling it her pin- money ; and upon the death
of the first wife, and until the testator married the defendant
Style^ the tes&tor's sister the defendant Felling kept his
house, and had the same allowance, which was also con-
tinued to the defendant the widow, after her marriage, by
way o{ pin-money ; and it was proved in the cause, that her
[ 338 ] husband, whenever any person came to buy any fowls,
pigs, &c. would say, he had nothing to do with those thingd,
which were his wife's; and that he also confessed, that
having been making a purchase of about 1000/. value, and
wanting some money, he had been obliged to borrow 100/.
of his wife to make up the purchase-money ; therefore now
the jvidow claimed to be paid this 100/.

To which it was answered, that here was no deed touching
this agreement, nor any writing whatsoever, whereby to raise
a separate property in a feme covert, which was what the
law did not favour; that it was no more than a connivance
or permission, that the wife should take these things, and
continue to enjoy them during his (the husband's) pleasure,
which pleasure was determined by his death ; besides, this
i^reement being after marriage, was but a voluntary one, for
which a court of eqtdty usually leaves the party to take his
remedy at law ; and that, in truth, the husband's borrowing
this 100/. of his wife, was no more than borrowing his own
money.

But the Lord ChlEtncellor decreed, that the widow, the de-
fendant, was well entitled to come in for this 100/. as a cre-
4 ditor before the Master ; observing, that the courts of equity

have taken notice of and allowed feme coverts to have sepa-
rate interests by their husband's agreement (x) : and this
100/. being the wife's savings, and here being evidence that
the husband agreed thereto, it seemed but a reasonable en-
couragement to the wife's frugality, and such agreement
would be of little avail, were it to determine by the husband's
death; that it was the strongest proof of the husband's
consent, that the wife should have a separate property in

(x) Walter v. Hodge^ 2 Swan. 105. vol. 125. and Bennei v. Davi$j ante, 2
and see Harvey v. Harvey, ante, 1 vol.318»

Dt Term. S. Michaeli$, 1734. 339.

the money aridng by these savings, in that he had applied Slakmino
to her, and prevailed with her to lend him this sum ; in - ^^
which case he did not lay claim to it as his own^ but sub- r 33Q \
mitted to borrow it as her money.

Wherefore, and especially as here was no creditor of the
husband to contend with, it was ordered^ that the wife
should be allowed to come in for this 100/. as a creditor be-
fure the Master ; and the court cited the case of Calmady So ^^^^^
V. Calmatfyf where there was the like agreement made be- greed, that
twixt the husband and wife, that Upon every renewal of ^^^^^
a lease by the husband, two guineas should be paid by neas of every
the tenant to the wife, and this was allowed to be her sepa- ^|^ ^ leaM*
rate money. 7»*^ *!^ ^"r

' band, beyond

the fine irhich the hoibaiid rcceired ; thif waa alloired to bo the wife's separaU mooef .

The LADY COX's Case, Caae 88.

Sir Cbarles Cox, a brewer in Sauikwarkf having a wife Sir Joscptf
that lived for some time separate from him, made his ad- Jekyll,
dresses to a young woman in order to marry her, who at fu^^p '1?,
length, against the approbation of her friends, consented to
marry him. Accordingly they were married ; but the young i82?pi. 6-
woman had no manner of notice that Sir Charles Cox had ^^i^h ^^•

A. having a

any former wife then living. wife whoUred

leparate from
him, afterwards courted and married another woman, who knew nothing of the former wife's
being alire : but it being discorered to the second wife, that the former was alive, A. in order
to prevail with the second wife to stay with him, some years afterwards gave a bond to a trus-
tee of the second wife, to leave her 1000/. at his death, and died, not leaving assets to pay his
simple contract debts ; if this bond had been given immediately on the discovery, and they
had parted thereupon, it had been good ; but being ^ven in trust for the second wife, after
iQch time as she knew the first wife was living, and to induce her to continue with A.; this was
worse than a voluntary bond, and decreed to be postponed to all the simple contract debts.

Some time after the marriage, it was discovered, that Sir
Charles had another wife then living, which gave great
trouble and uneasiness to this second wife ; but she having [ ^^ 1
disobliged her friends by the marriage, and Sir Charles tell-
ing her, that his first wife was in years, very infirm, and not
likely to live, and that in case he should survive such first
wife, he would marry her : this lady was prevailed upon to
continue to cohabit with Sir Charles ; and about five or six
years afterwards. Sir Charles gave a bond to a trustee of the
second wife, to leave her 1000/. at his death ; and Sir Charles

UO Be Term. S MichaeUs, VIS*.

liady Cox's tdoa dkcr dyfaig, die iJlaintSff, the hdy, bfouglit her bOi for

C><®* this 1000/.$ and there happemng to be a deficiency of atset»

to pay the simple contract ddits, the qoeetion now was,

whether this 1000/. thus seemed by bond shoold take pbce

tf the shB]^ contract ddits ?

It was insisted for the pliunti£^ that she was an innocent
yOnng lady^ greatly injured by Sir Charlei Cbtar, ^o pre-
tending to be a single man^ and having made his addieiees
as such^ had drawn her m to marry him withoot the least
notice or suspicion that he was a manied man ; that aB the
compassion iinaginid>le was due to a lady thus betrayed, who
might have maintained an action at law for this injury; in
which case, supposing the 1000/. in question had been giren
by the jury for damages, it had been but just ; and if so, it
was surely no less just in the husband to give her a bond for
the like sum.

The Master of the RoHs took time to consider of the case,
and at length gave judgment, that this bond should be post-
poned to all the simple contract debts owing by Sir Charles
Ifiuclibond Car. His Honour admitted, that if the bond had been given
tciiketc^ond upon the first discovery that Sir Charles was married to a

eompcncetor ^^^^'^^^^ ^^ ^^^^ Kvin& *nd by way of recompence for that
theinjviy *ii\)ury, and ther^ujion Sir Charles and this gentlewoman
t^uponsbe ^^ parted, this bad been a just bond, and for a meritorious
^ ^ A.; it consideration j but that in the present case the bond was not
good bond, given until five or six years after there had been a discovery
before m/^ of the former marriage, which niade it reasonable to think it
•iaiple con- was given by Sir Charles to this lady, rather to induce her
T^^i^^l'l ^ continue to live with him, than upon any other motive ;
In which case the bond would be worse than a roluotary
one ; for then it would be given for a wicked consideration,
that of her living in adultery with Sir Charles ; and this un-
fortunate lady, whatever the consequence had been, ought to
have left Sir CharUe, after slie bad fully discovered he had a
former wifi( living; that if such bond had been given to a
. Iswfol wife after marriage, this had been a voluntary bond,
(a) Ante, 222. and (a) void against creditors ; much more, when given to
one iHio was no wife, and upon such an ilUdt conndera-
tlon. (1)

■^«'i»V«>W«#iri

^ - --— — — — - — ^ — ^-^ ^ -^ —

(1) Reg. Lib- 1734. feL 115, hj the t vol. 4S2. fValkerv. Perkins^ SBsrr.
me of North v. Cox. Et vide Afar- 1568. PneH v. Parrot^ 2 Vex. 160.
ehionen of Annandale y. Harris y ante,

name

/^*< J r lit/ * z f.

D% TVrift. .$. Ukhltdu, 1734. ^\

THE CASE OF THE CREDITORS OF SIR Caw 89.

CHARLES COX. (1)

Amothbb part of this case was reserved for the further con- ^'/ 3o%wb
sideratioii of the court, and was as follows : Master of

Sir] CAor/es Cox possessed of a term for years made a mort- tlie Rolls*
gage thereof, and died possessed of the equity of redemption 2 Eq. Ca. Ab.
of the said mortgage, and leaving greater debts due from him 4^ pi' 21)22.
at his death than his estate would extend to pay. Where- 469. pi. 21, 22-

• Okie P0B86tt€u

upon the question was, whether this mere equity of redemp- of atetm for
tlou was * only equitable assets, and distributable equally ^*"*'^^
pro rata, among all the creditors, without regard to the de- dles> learinflr
gree or quality of their debts; or whether it should be applied boW^Md* ^
in a cpurse of administration ; in which last case the bond ■?"« ^T ■*■*"
creditors would swallow up all the assets, without leaving the eqnitf of
any thing for flie simple contract creditors. ^SuTi!"

•ets, azid sball be liable to all tbe debta equallir.

And his Honour, after time taken to consider of it, deli- [ *342 ]
vered his opinion with solenmity: that this equity of re-
demption was equitable assets only, the mortgage being for-
feited at law, a^ the whple estate thereby vested in the
mortgagee ; and it being now become precarious and doubt-
ful, whether it would prove worth redeeming ; also, for that
the quantum of the money due on the mortgage was uncer-
tain, forasmuch as, when the executors of the mortgagor
should be admitted to redeem, they must pay costs, which in
equity are considerable; so that it cannot now be known
what the surplus money on the redemption would amount to
upon the itccount taken. Wherefore this right of redemption
being barely an equitable interest, it was reasonable to con-
strue it equitable assets, and consequenUy distributable
amongst all the creditors pro rata, Mdthout having respect to
the degree or quality of their debts ; all debts being in a con-
scientious regard equal, and equality the highest equity; ac- («) seel Vera,
cordingly it was (a) so decreed. But, S>rt^hcfnmi'

(1) The tide of the cause was, 5]p^- as it appears bj the Register's book,

cer Vrf Caxj Reg. Lib. B. 1734. fol. 113. that Biffin was the matdeii name of Sir

and was probably the same xiauAe as Ckwlefi seeond wife.
Spetuer v. Biffiuy cited in 2 Atk. 291.

342 De Term. S/Michaelis, 1734.

The Case of Secondly^ The court declared^ that where a bond is due to
\ ^ f S '" -^'9 ^^^ taken in the name of B. in trust for -rf., and jd. dies ;
€. Cox. ^^^^ must be paid (1) in a course of administration ; for in
But where a such case there can hardly be any dispute touching the
to B. io u^st qwmtum of the debt^ seeing the * principal, interest, and also
for A. who dies; the costs, must be psud to the obligee in the bond ; whereas
on the bond in the Other case, the costs must be paid by the party coming
shall be paid in ^ redeem. For the same reason, if a term for years be

a course of ad- ^ . .

ministration ; taken in the name of £., in trust for A,^ this, on the death
term foVycara ^^ -^' *^® cestuy que trusty will be legal assets ; for here the
to B. in trust right to the thing is plain ; and if the trustee contests it, he
T *343 ] must,/?nma/acte, do it on the peril of paying costs.
If a bill be Thirdly y The court apprehended, that if a simple contract

Smpfe con-* Creditor, on behalf of himself and the rest of the creditors,
tract creditor, were to bring a bill and obtain a decree, that he and the rest
himself and of the creditors should come in before the Master, and be
the rest of the ^^XA. all their debts : and that an advertisement be put in the

creditors of * ' * . ,

J. S. to be paid Gazette for that purpose : here any bond creditor coming in

and\here^i*8 a ^° *^^ ^^^^ ^^ ^^ decree should be paid only pro rata with
decree, that the simple contract creditors ; for his coming in implies a
and the rest Submission to the decree. And this was thought io be clear.

ofthecredi- Qnt

tors shall come ^

before the Master and prove their debts ; bond creditors coming in under the decree shall bt

paid no more than a proportion with the pimple contract creditors.

Fourthly y' The court inclined to hold further, that if such

bond creditor would lie by, having notice of the decree, and

advertisement in the Gazette, (notwithstanding every one is

Also, if a bond in many cases obliged to take notice of a lis pendens) and

until the eze- ^^^^ s^ch lying by, should bring his action at law against

*^"^'iai*th "^ the executor or administrator of the obligor ; though at law

assets under the latter may not be able to defend himself, yet his Honour

•haiUirMcms^ thought that in this case an equity would arise in favour of

be bound to such executor or administrator, and of the simple contract

with the Sim- Creditors, to compel the bond creditor to come in and accept

cred^tow**^* of a proportion of his debt rateably with the simple contract

[ 344 ] creditors. (2) But however strongly his Honour inclined to

be of this opinion, he said, it was no part of his judgment.

Nevertheless he declared, he should always do his utmost to

extend the rule of distributing equitable assets equally

amongst all creditors. See 2 Vem. 435. Shephard v. Kent.

— — — ^^— ■■-1..^. _ :.

( 1 ) Wilson v. Fielding^ 2 Vera. 763. Morrice v. Bank of England^ Ca. temp.

(2) As to the third and fourth points . Tal. 217.
U has been since settled othenrise, vide

De Term. S. Michaelis, 1734.

This resolution was communicated to me by the Master of Case of the

the Rolls himself, Jan. 17, 1734.(1) ^f^^'Ii'^" ""^

Sir C. Cox.

(I) At the hearing of the caases of
North V. Coxy and Spencer ▼. Coxj in
Mich. 1734, it was ordered, (amougst
other things) that in taking th6 accounts
thereby directed, the Master slioald dis-
tinguish which were legal and which
were eqaitable assets of Sir Charles
Cox ; and that such as were legal assets
should be applied in a course of admi-
nistration, and such as were equitable
should be applied pari passu in paying
the testator's debts not satisfied out of
the legal assets, but such of the creditors
as should receive any satisfaction out of
the legal assets, were not to receire any
thing towards satisfaction of the re-
mainder of their debts out of the equi-
table assets, until all the other creditors
of the said testator (except Hinton^ and
his wife, who was the second wife of
Sir Charles CoXy as above-mentioned)
should out of the equitable assets receive
towards satisfaction of their respective
debts so much as would make them up
equal in proportion to their respective
debts, with the creditors who had re-
ceived out of the legal assets ; and the
consideration of costs was reserved.

Reg. Lib. B. 1734. fol. 113. No far-
ther order (except the confirmation of a
separate report) appears to have been
made in these causes until HiL Term^
1740. when the Master's general re-
port -was confirmed. Reg. Lib. B.
1740. (bl. 125, 134. Upon looking into
the Master's report it appearSy that the
only two creditors being in equal degree^
theMaster declined to distinguish which
were legal, and which were equitable
assets. So that the point was not in fact
determined. Hartxsell v. Chittersy
Amb. 308. rests wholly on the supposed
authority of this ca8e.(d7)* On the other
hand it has been decided that chattels^
whether real or personal, mortgaged or
pledged by the testator, and redeemed
by the executor, shall be assets ai law
in the hands of the executor, for so much
as they are worth beyond the sum paid
for their redemption, though recoverable
only in equity. Hawkins v. Lawesy 1
Leo. 155. Harcourt v. Wrenham^ or
Norwood V. fVraymanj Moore 858. 1
Roll. Rep. 56. 1 Brownl.76. 1 Roll.
Ab. 020. Alexander v. Lady Graham^
1 Leo. 225.

(x) See also in Sharpe v. Earl of Bay ley, J. cites those cases as authority;

Scarborough^ 4 Vei. 541. the Solicitor- though as the equity of redemption in

General (Mifford's) remarks upon the Clay v. Willis was of a freehold estate,

principal case, and Hariwellv. Chitters. the point as to leasehold estates did not

But in Clay v. Willis^ 1 B. & C. 372. come in question.

m De Tern. & Mkhaelig. 1734.

CobW. LOYD ET UX' ET AL' v. SPILLET ET AL'.

Lord John Stamp^ uncle of the two plsdntiSs tbe feme coverts,
Cbaucellor seised in fee of a considerable real, and possessed of a great

c!^b P^^^^ ^^^ ^'^^^^ ^^ ^^ ^^^^ ^^ ^^^ ^^ March, 1721,

24i?Vi.*30. ' and thereby devised all his real and personal estate to the

Ad Hs«fdl ^^^J'^^* Spillei, and another trustee, (since dead) their

hb Md and heirs, executors, and administrators, in trust to pay !£/« jper

t^ u^tees!^^ attaim a^piece, to the plaintiffs his two sisters, (the wives of

Aeb hetisttdd the Other plaintiflb) for their lives, and after some pecuniaiy

trust to ^7 legacies thereby given, then in trust, as to the surplus, /or

to^Uid^^ ^Ao«ep0r«ofM thai arecomnUmly called Dksenting Ministers^

(ifft Ids two particularly 36/. per annum^ to the dissenting minister at

SSrH^and ^^^gf ^ Berks, the like annuity to the dissenting mhustef

after several at JFareham, the like * to him at fTeymouth, in Dorsetshire;

M^m in and gave 300/. a-piece to the defendant the trustee, and the

dii*^ Unami- ^*^*^ trustee deceased, and 30/. per tmnum to each, idiile

nisters at they took care in executing the trust.

Reading, Ae.

and givoa dOOJL Ittadcs to his trustees, ^terwards the testator hy two deeds of a sabseqoent
date conveys sH Us leal estate^ and makes a gift of his j^rsonal estate to the use of the same
tnistees and their heirs, d^c. proviso both deeds to be void, on his tender of 10«. to them.
There was also a proviso in tne will, that if the sisters dispated the will, they should forfeit
their annuities. Testator, after he had executed the deeds, stHl kept the same in his own cus-
tody. The trustees relase payipg the sisters their annuities, who thereupon bring their bill,
insisting that the deed liad revoked the will ; and that there was a resulting trust for them as
heirs at law ; or at least that they (the sisters) were entitled to their 15/. per annum annnities.
The defendant insisted on the jdatntifls having forfeited their annuities ; decreed that the an-
nuides should be paid to the two sisters the plaintiffs, but the surplus to go to the dissenting
ministers.

[ *346 ] Afterwards by a deed of a subsequent date to the will, tbe
testator conveyed all his real estate unto and to the use of
the said trustees and their heirs, with a proviso to be voidj
on tender of 10^. And by another deed of the same date he
granted all his personal estate to the same trustees, to be
void also on tender pf the like Sum of 10$. both which said
deeds the testator kept in his own custody, and soon after
died.

The trustees for some time paid the 15/. a-piece, to each

of the testator's sisters ; but afterwards refused to continue

^ the payment thereof, and did likewise refuse to pay any of

the dissenting ministers ; but received the rents and profits

of the premises to their own use.

The two sisters and their husbands brought this bill in
equity against the surviving trustee, insisting that the deed

fh Term. S. Mchaelis, 1734. ^46

of coaveyance of the i^ eetato^ and the deed of gittoi the Lotb

personal estate beipg Bobseqaeat to the wiU^> did plainljp ^ ^'

revoke such' wUl ; and the-csoaveyaiiee and deed being volnn*

tary, without any consideration, and the defendant being

intended to be but a tcustee^ a resulting trust must arise for

ths plainti£b the heirs at lawj vduch was said to be still

much the stronger, in that the plaintifie having inquired by

the bitt^ whether the testator Stamp intended the prenufies

should be to the use of the defendant^ or that the defendant

and the other trustee deceased should receive the profits for

their own benefit; the defendant in his answer had said, he

could not tell whether the sidd Stamp, the testator^ did or [ 340 }

did not so intend : and the phufltiffs having prayed by their

bUl, that if the eoifft should be of opinion they were not in*-

titled to a resulting trust in the whole estate ; that in such

case they might at least be decreed their arrears of that small

annuity of 15/. per annum a-piece : the defendant in his

answer thereto had insisted on there' being a clause in the

will, that if the testator's heir at law should dispute the will,

then they should forfeit their annuities ; and submitted it to •

the court, whether the plaintifiGs had not by prosecuting this

their suit forfeited their said annuities.

The Lord Chancellor declared, he very much disliked the
defence that had been made in controverting the payment of
these small annuities of 15/. per annum a-piece to die wives
of the plaintiffs, and insisting that they were forfeited by
this their biU (z) ; and observed, that the testator plainly in-
tended the annuities of 15/. per annum a-piece, to the plain-
tiffs his sisters and coheirs ; and that the surplus of his estate
should go to these dissenting ministers; that the defendant's
own answer made it appear evidently that he was designed
to be but a bare trustee ; and the rather, for that a liberal
legacy of 300/. and likewise the 20/. per annum salary were
allowed to the defendant; that the subsequent conveyance
of the land, and deed of gift of the goods, were not de-
signed to prejudice the charity for the dissenting ministers, whero a sub-
but to strensiiien it ; and it was a further argument of the wqucntcon- .

, , ° ° veyancedoes

intention of the testator, that the defendant should not have not reroke a
the premises to his own use, inasmuch as, after the deeds of *
the land and goods were executed, still they were kept in the
custody of the testator ; so that as the deeds were intended

(«) See fVebb v. Webb, aate, 1 vol. 130.

S46 th Term. S. Mekaelu, 1 734.

LoTD only by way of trust in the trustees^ it was more reasonabb

^ ^- to est^lish this trust on the foot of the will.

r S47 1* ^^^ ^^^ regard to the annuities ; his Lordship decreed,

A trustee mis- ^^^^ ^^^ arrears and growing payments thereof belonged to

mu"^^^' the plwntifEB, who were entitled also to their costs; and

to pay cosu though it was prayed, that these costs might come out of the

pocket, anT" estate, (which the defendant urged would be the same bene-

not out of the fit to the plaintiffs) yet the court denied it, as tending to

lessen the charity, and said, the defendant the trustee had

made so ill a defence, as not to have deserved the least favour

by this decree. (1)

(1) Bill dismissed as to every thing Atk. 148. Et vide AdUngton v. Canny

but the payment of the annuities, Reg. 3 Atk. 141. Jttomey-General i.

Lib. B. 1734. fol. 74. Affirmed on a Cock^ 2 Vez. t73. (jf)
rehearing before Lord Hardwickcy 2

iy) Edwards v. Pike^ 1 Eden. 267. Boion Y.Siaiham, 1 Eden. 508. 1 Cox
16. Muckleston v. Brown, 6 Yes. 52.

D€ r#rm, & HU. 17S4. 548

TERM. S. HILARIL 1734.

HARRIS V. POLLARD KT AL\ Case gi.

Upon a bill of revivor, one of the defendants by his answer Sir Joseph
insisted, that the plaintiif was not entitled to revive ; but this Jektli.,
being insisted on by the answer only, and not by way of ^**p "^ii
plea or demurrer, upon my moving at the Rolls that pro-
ceeding^B might stand revived, hb Honour granted the mo- 2. pi. 4.^
tion, having at the same time spoken with the register R.*^^'* ^
touching the practice. Though I apprehended that the prac- ant's time for
ticc of reviving proceedings was only upon the defendant's ^^Sccourt
time for answering being out, or upon the defendant's will order pro-
answering and not opposing the revivor. However, his rerived^ So
Honour, when he granted my motion, said, the plaintiff ought Jj^^fnt^y his
to shew he had a good title to revive ; otherwise at the hear- answer insists
ing of the cause he might happen to take nothing by the suit. J]5r*is^noi «-'

tiUed to lerire; for this ought to be ^ewn either by pies or demurrer; but if in such case it
sppears at tha hearing that the plaintiff had no title to rerire, he cannot hare a decree.

ORLANDO HUMPHREYS, ESQ. AND HELLEN HIS [ 349 ]
WIFE V. SIR WILLIAM HUMPHREYS, BART. Case n.

The bill was brought by the plaintiff Orlando Humphreys, Lord

and Helkn his wife, against his father. Sir William Hum- Chancellor
pAreys, Bart, for an account of the personal estate of Colonel ^^bot.

Lancashire, deceased. iro^^i^**'

172. pi. 3. Parties. In a bill for an account of the persons! estate of J. S.» though the person
who has a right to administer to J. S. bt a party, yet this if not sufficient, without adminit*
tmtlon ActnaUy takca ont. ^ X^'

PHRET8.

3*9 De Term. 8. Hai734.

Humphreys Colonel Lancashire by his will gave lO^OOO/. to his wife

^* Hellen^ also 10,000/. to his daughter and only child HeUen,

and after some other legacies, disposed of the surplus of his

personal estate in manner following : one third to his wife,

the* remaining two-thirds to his daughter, and made his wife

and his brother Zroncashire, executors of his will, and

died.

The defendant, Sir fPtlKam Humphrejf^y married the
widow of Colonel Lancashire, and some time after the plain-
ti£F Orlando Humphreys married Hellen his only daughter;
upon which intermarriage the defendant. Sir William, nuide
an ample settlement upon his son the plaintiff, Orlando
Humphreys, and Hellen bis wife; but afterwards the plain-
tiff falling out with his father, brought this bill against him
for an account of the personal estate of Colonel Lancashire :
at the time of brining which bill, Hellen the widow of
Colonel Lancashire, and afterwards the wife of the defend-
ant Sir JFilHam, was dead, and the brother of Colonel Lan^
cashire was dead also; so that there was no executor or
f 350 } administrator of Colonel Lancashire, party to the MH ; for
which reason the defendant demurred to such part of tiie
biD as demanded an account of the personal estate of Colonel
Lancashire; which demurrer coming on to be argued before
die Lord Chancellor,

It was insisted, that the plaintiff Hellen, wife of thepfain-
tiff Orlando Humphreys, as she had a righi to administer ta
her father, Colonel Lancashire, and vel regard, though aay
other person should by surprize get administration to him^
yet such person would be a trustee only for the plaintiff
Hellen the daughter ; and as the plaintiff Hellen the daugh-
ter, who had the only right to the administration, was a
' plaintiff before the court ; this was sufficient, and the court
might order that the plaintiff Hellen should forthwith take
out administration to her father.

Lord Chancellor. There can be no account taken of the
personal estaite of ColcHiel Lancashire, without making his
executor or administrator a party to the bill ; for aught ap-
pears to the contrary, there may be debts due from Colonel
Lancashire, which may take up great part of the assets ; and
therefore the administrator of the colonel must be made a
party, (s) else no proper account can be taken ; and if any

« ^^ -

(s) Plunket Y. Penton^ 2 Atk. 61. Conway r. Stroud^ Fsuutu I8& Law^*
T. Farlisy 2 Mad. 101.

De Term. 8. Hii 1734. 950

account should in fact be taken, it may be all overhaled Humphrxts
again, when such administration shall be taken out. There- o.

fore [A] allow the demurrer. (1) Hum-

Afterwards, to help this defect^ the pUdntiff Hellen, the r^^^i'i
wife of the plainti£F Orlando HutnphreySj took out letters of The bin
administration to her &ther, and charged the same by way of ^^^5fam«iid-
ametidment to the bQl, having obtained an order for such ment, mi^t(en
atnenement* ^j^ ^^ Ajip-

To which amended bill the defendant pleaded as to that of Ui9bai7ii3

thereioce luro*

part thereof, which prayed an aecomit (^ the pereonal eiltate per for a9u»-
of Colonel Lancashire, that the taking administration was jJSTh^h *
subsequent in time to the original bill, and therefore !t ought this v«»
to be charged by way of a supplemental, not an amended ^uw^t xha
bill ; and the rather, forasmuch as every amendment, though ^*j??^*l?^*'"
made after filing the original bill, is fixed to, and becomes ttMAsvehsftt*
part thereof ; so that the bill was filed by an administratrix, ^"JJ^Sjy^^J^
as such J and yet would appear to be filed before the admi- ^^f]^^^*"'^
uistration taken out, and consequently before the right to amcndeA UU.
sue commenced.

But the Lord Chancellor with great clearness (and not
without some warmth in respect of the delay) over-ruled (2}
the plea, observing, that the mere right to have an account
of the personal estate was in the plaintiff Hellen the daugh-
ter, as she was the next of kin to her father Colonel Lanca-
shire; and it was sufiicient, that she had now taken out let-
ters of administration, which, when granted, related to the Where an exe-

* ^ 1 t / 1 • / J, 1 1 cutor, before

tmie of the death of the mtestate, like the case where an probate^ files

executor, before his proving the will, brings a bill, yet his J^*^
subsequent proving the will makes such bill a good one, proves the
though the probate be after the filing thereof. * Wherefore iJ^Sr^^^
his Lordship resented this plea as an afiected delay, and held ^^™!^^^
that the taking out letters of administration might be charged r ♦352 ]
dther hy way of supplement or amendment. (9)

[A] See the case of Ckland v. CMandj Precedents in Chancery 64. where
an objection of this kind was over-ruled, and the making the wife a party, who
had possessed herself of her husband's personal estate, and disposed of it, and
who appeared to be the person by law entitled to admiaistration, though she
denied by her answer that she had taken administration, was held sufficient.

(1) Reg. Lib. A. 1733. fol. 40^ (3) Sed vide contra Bronn v. ^i^.

(2) Reg. Lib. A. 1734. fol. 210. cfen, 1 Atk. 291.0^)

Of) Pilkington V. JVignall, 2 Mad. Sed vide Knight v. Matthews. 1 Mad.
240. Uihame v. Baker^ 2 Mad. 379. bW.

3b% Dt Term. 8. HU. 1734.

Cue 9S. MALLACK v. GALTON.

I «

Lord If a feme before her marriage, or the ancestors of a feme^

ChaDcellor mortgage lands, and the equity of redemption theveof comes

lALBOT. ^ ^ f^^^ covert; upon a Bill brought by the mortgagee

Kdemptioa^of ^ foreclose^ the feme is liable to be absolutely foreclosed,

a mortgage though during the coverture, and shall have no day given to

feme covert^ her, or her heirs, to redeem after the coverture shalji be de-

Str'it" termined.(l)

band a bill is broagbt to foreclose ; tbe feme covert sball be foreclosed absoIutel79 and thall
have no time to shew cause after the death of her husband.

la a fore- Also, in case of a decree of foreclosure acrainst an infant,

closure agunst i_ v t •

an infant, though such infant shall have six months time after he com^s

InfTOtVi^six ^^ **® ^ ®^®^ cm»e agamst the decree ; yet he is not,
months after when he comes of age, to ravel into the account; nor is he
agcp to shew ®^ much as entitled to redeem the mortgage by paying what
cause, Ac. yet is reported due, but is only entitled to shew an error in the

be cannot _ *

ravel into the decree. Both these points were clearly laid down by the
S^rwdeem, ^^^ Chancellor, as agreeable to the constant practice. [B]

but only shew an error in the decree.

[B] In the case of Lf/ne v. Willis^ heard at the Rolls, 13th of May j 1750,
this was admitted by the coansel on both sides, and also by the court, to be tbe
settled practice. (j()

(1) To a bill by the widow to set had joined with her husband in a so r*

aside a decree of foreclosure and to be render of the copyhold estate in qaes-

let into redemption, the mortgagee tion, which was settled upon her in

pleaded the proceedings and decree in jointure, and had been foreclosed. And

the former caase, by which it appeared, the plea was aUowed. Reg. Lib. B.

that the present plaintiff, while covertcy 1734. fol. 189.(2;)

(«) Burke V. CroMcy 1 Ba. & Be. {y) So Bishop of Winckeiier v«
503. Beavorj 3 Ves. 317. WUUamton v.

Gordofiy 19 Ves, 114.

De Term. Pascha, 1735. y ^

353

TERM. PASCHiE, 1735.

FOWLER V. FOWLER. Case 94.

Thb defendant's deceased husband^ in consideration of a Lord

marriage then intended^ and afterwards solemnized, and of a Chancellor
considerable portion brought by the defendant, settled 100/. Talbot.

per annum in trust, for her separate, use for pin-money; two 15^'] J; ^ '

years' arrears whereof became due, aad then the husband 355. pi. 22.

made his will; wherein, expressing great affection, for his Husband on %

wife, he gave her a legacy of 500/. After the making of the tied 100/. per

will another year's arrear incurred, and then the husband moiu^m trust

died. The question was, whether the 500/. legacy, being for h" wife,

more than was due for pin-money, should be deemed a satis- rate use^which

faction for the said arrears ? '. ^^T^^"!''

rear, and then
the huiband by will gxveB tbe wife a legacy of 500/. After which there is a further arrear of
the f ift-money, and then the husband dies ; this legacy being greater than the debt, decreed,
eren in the case of the wife, to be a satisfaction of the arrears of pin-money due before the
making of the will.

Flrsi, The Lord Chancellor admitted it to have been the [ 354 ]
general practice, where there is a debt due from the testator
to a third person, and the legacy given to such person is as
much or more than the debt, to hold such legacy a satisfac-
tion of the debt ; and this being established as a rule, (not-
withstanding were it a new point, he should hardly have
come into it,) and it had with great reason been urged in
opposition to the maxim, that a man ought to be just before
he is bountiful, that where there are assets, the testator may
with as much reason be construed (a) both just and bountiful, (^} Salk. 155.
yet it must be of very lU consequence to unsettie or alter it ;
because at that rate no counsel would know how to advise
his client. t

Secondly f Though in some cases parol evidence had been paroi evidence
allowed, in order to shew that the testator designed to give J^g^^'Jfg^n*

tcntion not to be admitted.

VOL. nu V

364 De Term. Pascka, 1735.

Fowler such legacy, exclusive of the debt ; yet his Lordship sidd his
„ ^* opinion was, not to admit such evidence j for then the wit-
nesses, and not the testator, would make the will. (2)

Thirdly, Admitting this to have obtained as a general rule,
it was next to be considered, his Lordship said, whether a
wife ought to be excepted out of such general rule. Now it
was true, there had been, on some occasions, and in some
particular cases, a distinction made in favour of a wife^ so as
to prefer her to any other legatee, as in those of Thelhichm
(a) 1 Vol. 114. of Beaufort v. The Lady Grarmlle, in the (a) House of
(6)2Vem.675. Lords, and (ft) Ball v. Smithy by the Lord Harcourt, where
the wife, being executrix, and having an express legacy, was
also held entitled to the undisposed surplus ; yet even with
[ 355 ] regard to this the court had varied in their determinations.
However, since no precedent had been alleged in favour of
the wife, as to.the point in question, he thought that the
legacy given to her being greater than the debt, it ought
to be construed a satisfaction of such debt, and that there
was no reason to except the wife out of the general rule.
But that.

Fourthly, The legacy could not be pretended to be a satis-
faction of a debt incurred after the date of the will, and which
at that time might possibly never become due. (1)
Wbere pin- Fifthly, Where pin-money is secured to the wife, and it

cured to the appears that the husband notwithstanding provides the wife
h^^b *d^fi^ with clothes and other necessaries, this, during such time as
her ill clothes the wife is SO provided for by the husband, will be a (c) bar
^ "tiS^'a to any demand for her arrears of pin-money.

bar as to any arrears of pin-money incurred during such time, (c) See Vol. 2. 84. Powell v.
Hankey.

(1) Vide Chauneey^g case, ante, 1 vol. 409. Thomas ▼. Bennet, ante, 2 vol. 343.

1^'

(s) But see Wallace v. Pomfiret, 11 Yes. 542; and the cases in the note to
Rachjield v. Cardesty ante, 2 vol. 18S.

Be ferm. S. Trin. 1735. 35$

/^l^f

TERM. S. TRINITATIS, 1735.

MILLER v. MILLER ET AL'. Case 05.

Ons having a wife and a son that was his only child^ two Sir Joseph
days before his death made bis will, giving thereby to his ]vr^V^%
wife 1501. per imnumy in long exchequer annuities, during the Rolls,
her widowhood. After which the same day he made a 2 £q. Ca. Ab.
codicil^ by which he gave to his said wife a further exchequer ^^' p|* ^*
annuity and 600/. in money, to be paid her immediately Oneharingby
after his death. Subsequent to this, and about an hour be- ^j^ ^fe^ool^
foie his death, the testator having called to his servant to ^^ moaeT, on
reach him his pocket-book, took thereout two bank notes for ordered hit
300*. each, and another note for 100/. (not being a cash Jf^^^^hta*"
note, 0r payable to bearer,) all which notes he ordered his wife, then pre-
servant to deliver to his wife (then present) adding, that he TO°«,*^ay^bie
had not done enough for her. But the wife for some time to bearer, a-
declined taking these, having, as she said, enough already, eoOL, raying,
and for that it would injure their son, who * was the re- ^'^l^^doot

J ' X done enough

siduary legatee in the will. Nevertheless, at length she was for hu tnfe;
prevailed on by her husband to accept of the two bank ditfonaiVand *
notes, and also the other note. After which the testator by "^^^ n^ be
word of mouth gave her his coach and a pair of his coach- payment of the
horses, bidding three witnesses then present take notice of ^'(hrtcsu?^
it, and that he was in his senses, who accordingly made a tor's lifetime.
memoraiidum thereof in writing. L ^ '

On a bill brought in the name of the infant son by his '
prochein amy, against the widow and the executors, for an
accAVint of t)ie t^statpr's personal estate, it was insisted on
behalf of the plaintiff, that since by the codicil a legacy of
600/. was given to the wife, payable immediately after the
testator's death, the delivery of these two bank notes
amounting to just the sum of 600/., was. a payment of such

857

Dc Term. S. Trin. 1735.

Miller

IT.

Miller.

In ercry do-
natio causa
mortis, deli*
Tciy must be
made by the
party in his
last sickness ;
and it may be

legacy in the testator's lifetime; and with regard to the
other note for 100/. which was not pajrable to bearer, that
was merely a chose en action^ and consequently could not
pass by a delivery thereof. Also as to the coach and horses,
these were not delivered in the testator's lifetime, for which
reason the widow could have no claim to them.

Master of the Rolls. The gift of the 600/. contained in

the bank notes (z) wa^ a donatio causa mortis, which

operates as sucti though made to a wife, for it is in nature of

a legacy, but need not be proved (a) in the spiritual court as

part of the testator's will. Neither are gifts of this kind

^naturc^of a^ good, unless made by the party in his last sickness.(l) And

legacy, but though in the principal case the sum be the same with the

proved with 600/. money legacy ^iven by the codicil, yet the manner of

??s*^*' 1 6^^8 these notes, together with the expressions * then

441. Lawson made use of by the husband, declaring that he had not

^'r^0^l -| sufiB^iently provided for his wife, manifestly shew them to

have been designed as additional. On the other hand the

wife, by declining at first to accept of them^'apt^ears to

have been no craving woniah.

There cannot B^t then as to thfe note for 100/. which was merely a chose

beagiftofa . , ^ ^.-, . i . < #. i

bond or chose cfi action, and must still be sued m the name of the exe-
wa*of donatio ^^*^™> ^^^ cannot take effect as a donatio causa mortis, in
causa mortis, as much as no property therein (2) could pass by the deli<-

Neither can . ^

any thing operate as such without baring been delivered in the testator's lifetime by him or

order.(/)

(1) Sed Tide Bracton, lib. % c. U.
Jones v. Selby^ Pre. Cha. 300. Ward
v. Turner^ 2 Vez. 439.(^)

(2) In Lawson v. Laxcson^ ante, 1
vol. 441, it was determined that a bill
drawn by the testator upon his banker
in favour of his wife, and delivered hy
the testator apon his death-bed to the

wife, operated as an appointment of so
much money to the wife, to take effect
after the husband's death. But the
court in that case relied upon so many
particular circumstances, that it does
not seem to have afforded any general
principle.(x) Vide 2 Vez. 441. In
Snelgrave v. Bailey , 3 Atk. 214,

(z) Shanley v. Harvey, 2 Eden.
126.

iy) S. C. 1 Dick. 170. Blount v.
Burrow, 4 Bro. C. C. 72. S. C. 1 Ves.
Jun. 546. Walter v. Hodge, 2 Swan.
100.

(x) And accordingly in Tate v.
Hilbert, 2 Ves. Jun. 120. 4 Bro.
C. C. 286. I^rd Loughborough, though
he approved the judgment in Lawson

y. Lawson upon the circumstances,
held generally, that a promissory note
made by the testator, or a cheque
drawn by him on his banker, could not
be the subject of a donatio mortis
causa,

(0 So Bunn y. Markham, 7 Taont.
224. 2 Marsh. 532. Irons y. Small'
piece, 2 B. & A. 552.

De Term. S. Trin. 1735.

358

vfery ; much less can the widow be entitled to the coach and Millkr
horses, of which there was no (o) delivery in the testator's ^ ^'
lifetime. (3)

(a) AdmittiDg the coach and horses not to pass to the widow by way of
donatio causa mortisj — why could she not be entitled to them as by a nuncu-
pative will ?

Lord Hardmcke held, that the de-
livery of a bond amounted to a gift
(causa mortis) of the debt(t0) ; which
case was afterwards cousidered by his
Lordship in Ward v. Turner, 2 Vez.
442, and distiuguished from the case of
a note. Quare, Whether the delivery
of a mortgage deed will amount to a
gift of the money due on the security ?
vide Richards t. Stfms, cited 2 Vez.

436. Hassell v. Tt/nte, Amb. 318.(i>)
In Ward v. Turner, ub. sup. Lord
Ilardwicke (after a full consideration
of the nature of these gifts, and the
delivery requisite to give them effect,)
determined, that the delivery of re-
ceipts for S. S. Annuities did not
amount to a gift of the annuities them-
selves

(3) Reg. Lib. B. 1734. fol. 535.

(») Gardner y. Parker, 3 Mad.
184.

{v) It is now decided, that delivery
of a mortgage deed will not take effect
as a donatio mortis causa, even though
the mortgage wa» accompanied by a
bond. Duffield v. Elwes, 1 S. & S.
243 ; but in Hurst v. Beach, 5 Mad.

351, where the delivery of the mort-
gage and bond were to the obligor and
mortgagor himself, the court directed
an issue, to try whether they were de-
livered for the purpose of releasing the
debt, if the mortgagee died of her thea
illness.

KING V. KING AND ENNIS.

Case 96.

On an Appeal from a Decree at the Rolls.

Tub bill was, that a mortgage made by the testator of a Lord
copyhold devised to his nephew, might be discharged out of Chancellor
the personal estate of the testator, and if that not sufficient, albot.
out of the rest of the real estate. 2 Eq. Ca.'Ab.

234. pi. 21.
2S5. pi. 5. An equity of redemption of a copyhold may be dcvUed without being surrendered
to the use of the wiU.

The testator Thomas King, seised in fee of some freehold £^«>7 mort-
gage, though
no corenant or bond to pay the money, impUes a loan, and every loan impliei a debt ; there*
Ibre an heir of a mortgagor shall compel an application of the personal estate to pay off ■»>
mortgage^ notwithstanding there was do covenant, &c. from the mortgagor.

S58 i)c Term. & TVm. I7S5.

King lands, and also of some copj^old lands in Hntkhey in JA^
Knio ^^^y had mortgaged the copyhold for 550/. to the defendant

Fmmsy who was admitted upon the said mortgage.
[ 35g ] The testator made his will dated the first of Juhfy 1^30,

whereby reciting that he had surrendered the copyhold to
the use of his will, he devised the copyhold premises to his
nephew the j^ntiff and his heirs'; and after all his debts
paid, he devised all the rest and residue of his estate res^
and personal to his son the defendant Thomoi King and his
heirs, leaving his said son executor.

The plaintiff the nqihew brought his bill against the tes-
tator's son and .the mortgagee, setting forth, that there waff
a bond for the payment of the mortgage money, which the
mortgagee by his answer confessed, (and note, this bond was
one'ruSdIf- admitted at the hearing at the Rolls) and the words of the
ter debts paid, wiU being, '' that after all the testator's debts paid, the rest
ihc dcbtoott^ ** and residue of all his real and personal estate diould go to
?> ^^- . '* his son ;" this was said to import, that (o) till all the debts
V. Ingiedeir, Were paid, nothing was devised to such son ; or that, when
ante, 91. ^^ debts should be paid, then and then only he should be

entitled to the residue of the testator'a real and personal es-*
tate. Whereupon his Honour decreed, that first the per-
sonal estate should go to pay off thi» mortgage debt, and af-
terwards the real estate devised to the son, and then the
rent& and profits of the real estate that had been received by
the son since the fether's death.

And now upon an appeal by the defendant the son, he did
not bring the mortgagee to hearing, and it was neither
proved that the testator had surrendered the copyhold to the
use of his will, nor that there was any bond or covenant for
the payment of the money ; consequently, it was objected,
1^^, That the copyhold was not well devised by the will.
[ 360 ] And, 2e{/y, That tins was no debt \ and in the case of the
South'Sea loans, it had been solenmly determined, that the
borrowers were not [personally] liable to pay the money
. borrowed ; and that in the case now under consideration, a
very great iiardship was endeavoured to be thrown upon an
only son, who, wefre he to pay this mortgage debt, would be
left destitute ; wherefore the H^hland 'was not to be f&Vdtolcfl
ia equity.

To which it was answered, and so ruled by the c6urt,'^t
'where a copyholder has mortgaged his cdpyliolSl 'riSlid the

De Term. S. Trin. 1735. 360

moftgagee is admitted^ (x) as in the present case^ the mort- Kivo
gagor not having the legal estate of the copyhold in him^ baa ^^

no estate that ^e can surrender, and therefore may (a) devise
the copyhold premises without any surrender.

As to the second pointy the court was of opinion, that
every mortgage implies a loan, and every loan implies a
debt; and that though there were no covenant nor bond, yet
the personal estate of the borrower of course remains liable
to pay off the mortgage ; and for this was cited a decree of
the Lord Harcourty in the case of the mortgage of a ship,
where the ship was taken at sea, and there was no covenant
for payment of the money ; and though the ship could not
properly be said to be in nature of a pawn or depositunif
since the mortgagor had sailed with the same to sea ; never-
theless the executors of the mortgagor were decreed to pay
the money for which the ship was mortgaged. Which case
the Lord Chancellor said he well remembered^ and that it
was so in the case of fFelsh {b) mortgages, where no day (a)Vo1.1.291«
certain ♦i? appointed for the payment, but the matter left at ^ foi^J^^e
large ; and that with regard to what had been said of the advanced on
SoutA-sea loans, it had been always taken, that the com- ^he stock,
pany gave ^credit to the stock only that was pledged, and without in-
took no notice of, nor made the least enquiry after, the tfae ability of
ability or circumstances of the borrower, but depended en- *^* borrower,
tirely upon the stock. L ^^ J

Wherefore the decree of the Rolls was afSrmed upon these
two points, (viz.) that one may devise an equity of redemp-
tion of a mortgage of a copyhold, without having surrendered
it to the use of the will ; and also, that every mortgage im-
plies a debt, for which the mortgagor's personal estate is

(a) The same point was determined (inter aP) in the case of Strudwicke
V. Strudwicke^ by the Lord Chancellor Parker^ PaschcB 1720. (1)

(1) So, Greenhill v. Greenhilly a Atk. 73. Allen v. Poulion^ 1 Vez.

Vem. 680. Maceu v. Shurmery 1 Atk. 121. Macnamara v. Jonety I Bro. C-

390. TujffhellY.Pagey^ Atk. 37. and C. 481.Cy)
Barnard. 0. S. C. Car v. Ellison^ 3

(«) Secus where the mortgagee is not wright v. Elwelly 1 Mad. 627.; and

admitted. Doe v. JVrooty 5 East. 132. see Harrit v. Ingledewy ante, 08.

Kenebelj. Scraftony 8 Ves, 30. n. (y) as to the effect of the stot. 55 Gr

Of) Smith V. Triggsy 1 Str. 487. 3. c. 192.
Doe V. Vemony 7 East. 8. fVainC'

361 De Term. S. Trin. 1735.

Kino liable, although there be no bond (1) or corenant for the

)rtgag<

(1) Vide Howel ▼. Price, ante, 1 Hancock^ 2 Atk. 424. MarcMonest of
Tol. 294. Tweedale v. Earl qfCoventr^y 1 Bro.

(2) Reg. Lib. A. 1733. fol. 528. and C. C. 240. Philips t. Philips, 2 Bro,
1734. fol. 450. Et vide Serle v St. C. C. 273. Ashley v. Earl of Tanker-^
Elo^y ante, 2 vol. 386. Galton t. villcy 3 Bro. C. C. 545.

Case 97. SPETTIGUE v. CARPENTER.

Lord
Uiancellor q^ ^ j^-jj ^^ ^^^ ^^j ^^ ^^ award, the case was : There were

s c 1 D* k ^^^1^ stated accounts between the plaintiff and defendant,
66. 2 Eq. Ca. whereby considerable sums were due from the defendant to
After an award ^^^ plaintiff J but the arbitrator, without regard to any of these
made, it is too stated accounts, made up an account in his own way, brings
the submission '^g 1^ ^^^ plaintiff indebted to the defendant 25/., and award-
so as u> make jjj« ^jjg former to assifini over to the latter a mortcase which

It good withm o , f _ . _ ° T^ ,

the act of 9 & he had on the other s estate, upon which mutual releases
low. 3, cap. were to be given.

[ *362 ] The plaintiff, understanding what award the arbitrator was
A party sub- about to make, sent a messenger about two or three days be-

i^ard d ^' ^d ^°™ ^^^ *™^ ^^^ making the award * was expired, to let the
the arbitrator arbitrator know, that the plaintiff desired him to defer making
l^h^^^^ ^*s award, until he should talk with him about his demands,
until he should to support the Stated accounts, and know what objections
to something were made against them. However, the arbitrator would
which the arbi- j^q^ defer makiuff the award. The submission was confirmed

trator took to * *' i

be against him; by an Order of the court of chancery : but such confirmation

WM^^^^^^^^^ ^'^ «/*«• tl^e award was made.

OT three days For the defendant it was insisted, that this submission
for making the being confirmed by an order of the court, pursuant to the
yrt*heTu^*i statute of the 9th and 10th of fT. 3. cap. 15. it could not be
not being com- Set aside, but for corruption, or some other undue means ;
award^as* ^ ^^^ ^^^^ ^" point of time the party was confined to make his

hcldiU.

De Term. S. Trin. 1735

complaint even as to that^ before the end of the next term
after the award was made.

The Lord Chancellor called for the act, and having read it^
took notice, Ist, that it is thereby provided, that where the
submission is confirmed by rule of court, the award that
shaH be made shall be conclusive to both parties, and the
performance of it enforced by process of contempt of the
court; so that within this act the confirmation must be
prior to the making of the award, (y) 2dfyf That with re-
gard to the time within which the complaint was to be
made, it was in this case impossible for the party to apply
within a term after the award made, because the submission
was not confirmed by an order of this court, until the end
of the next term after making the award, (x) 3dfy, That
with respect to the reasons allowed by the act for setting
aside the award, they are corruption^ or other undue
means, (w) Now it was acting unduly to proceed in making
the award, when the plaintiff had desired to be heard against
the arbitrators determining in contradiction to so many
stated accounts.

And though it was answered, that this was within two or
three days before the time for making the award expired,
and with an intent that no award should be made ; and
though it did not appear, that the plaintiff was ready to be
heard within the time ; yet, forasmuch as here seemed to be
just ground for the plaintiff to desire to be heard, and in re-
gard it would be difficult to' assign a reason for rejecting so
many stated accounts, so lately allowed and passed between

SprrTious
Carpemter.

[363]

(j^) The practice of the courts is
not in conformity to this opinion. See
jilardes v. Campbell^ 1 Barnard, in K.
B. 15^. Chicote V. Lequesne, % Vez.
Sen. 315. Pownall r. King^ 6 Ves.
10. Feiherstane t. Cooper^ 9 Ves. fi7.
Smith V. Symesj 5 Madd. 74.

(«) With respect to the time limited
by the statute, which is a bar only to
an application to set aside the award,
and cannot be insisted upon in support
of an application to enforce it, see
Zachary v. Shepherd^ 2 T. R. 781.
FcdUy T. Goddardy 7 T. R. 73.

Lowndes v. Lowndesj 1 East. 276.
Davis V. Getty ^ 1 S. and S. 413.
Dawson v. Sadlery 1 S. and S. 540*
Auriol V. Smithy 1 Turn. 121.

(2v) Anderson v. Coxeter^ 1 Str. 301.
But the legality of an award may be
questioned on other groands appearing
on the face of the award, at any time
when the adverse party attempts to
enforce it by attachment or otherwise.
Holland v. Brookes^ 6 T. R. 161.
Pedley v. Goddardy Lowndes v.
Lowndes^ Auriol v. Smithy Dawson.
v. Sadlery nb. sup.

/•

De Term. S. Trin. 1735.

Sprrrrcmc bofih the submitting parties, the court set aside the awarcl

^ ^' with costs. (1)

CARPiorrER.

(1) Reg. Lib. & 1734. fol. 492.

Case 98. SIR EDWARD BETTJSON v. ALBINIA FAKRINGDON

, , and ^er two Sisters.

Lord

Chancellor

Talbot. Still Edwmd BHtiMH^ dece^ae4» Wi^ (enf^t m^ tidl qf ^ poi|-

The plaintiff aidorable iQ^tftte in Kmty r^inain^e^ in tail U> the pJaintiflF'^
^J^^^^*^ t^er^ remainder tp Sir J^dward Betthqn, dec^^ised, in ^cyer^
mainder io tui Sir jEdword JS^t/jUon 4id by lefiae ap4 relciaa^, ;nal|:e f tenant
tenant in uU'i to Ate pru^o^y aod Suffer a convpQon recovery^ declanqg tb^
Im? and^"^ uses to hioiself and Us heirs : after whicb^ on his dying io-
the heir male testate and without issue, the defendants, his three sisteif.
The detod^' entered on the premises ; and now on .the death of /the
•°<« ^"Lf*' plaintiff's fatiiier, the present Sir Edward BetUson brovi^
general of the ^ bill to discover what title the defendants had, who by.tl)eir
JSybytheb**' answer shewed, that their brother, the late S.ir Aboard
auflwer shew- BettUonj did eai^ecute the said lease fpid release, and al^o.suf*-
brother, the' &f^d this recoFery to the use of lUmself in fee, ref^^rpng \f>
tenant in tail, the deeds in their custody.

suffered a re- "

coTery, declaring the oie-to hiBMclf in fee, and nfer to the deeds in their cnstodr ; the conct
ordered, before the hearing, the defendants to leare with their clerk in court the deeds making
the tenant to the pracipe, and leading the uses of the recovery.

[ 364 ] The plaintiff on motion, without notice,, obtained an order
from the Master of the Rolls, that the defendants should
.prodmce, and leAve. with their clerk in court, the lease and re-
lease. Upon which I moved the Lord Chancellor to dis-
charge such order, for that as the defendants were sistem
wd heirs at law to Sir Edward Bettison lately deceased, and
also heirs to Su Edward BettUon, the first ancestor, and
cbdmed under a common assurance, the court would not
assist (1) the plaintiff in picking holes in their title, nor
Qpn^p^l themj i^t least not before the hearii\g, to produce
their >deeds ; that both partis were volunteers, in which

(1) -Buden y. DorCy 2 Yes. 44d.

De Term. 3. Trbu 1785.

ease it wvb^ not usoal for the coiurt to mtetpoM^ br give the B wittoik
least «Bswtaace to eith^. ^

Lard Ckaneeiior^ Though both parties are Tohmteen^ ^^o^^
yet it is of some weighty that the (o) honour of liie family is
descended on the plaintiff; and as at die hearing (s) you ad- (a) See VoL 3.
mit the court woidd do what has l)een desired^ mo it is for ^^^*
die beneit of all parties, that It should be done before the
heari^ ; for if the deed be a proper one to make a tenant to
the pTiBcipe, the pluntiff will go no further, which will put
an end to the suit. And the defendants, by referniig to the
deeds in their answer, have made them (b) part iSkerealL
Wherefore I think the order that has been made at the
Rolls a reasonable one, and Will not set it aside, (y)

(6) Quare. Whether the bare referring to a deed, without letting it forth in
hac verba will make it part of the answer 2 And see ant' Zb. the case of Hodsan
▼. the Earl of Warrington.

(s) See Lad^ Shqftesbury ▼• Arrono-
smiihj 4 Yes. 66. where Lord Longh-
horough, ChuiiesUor, conjectares Uiat
the words ^^ at the heariog," otisan «t
the trial.

(tf) A plaintiff is entitled to the
prodnction of a deed which sustains
his title : but he has no right to Ihe

production of a deed which is not con*
nected with his title, snd which gives
title to the defendant. Sampson v.
Sweitenhamy 6 Madd. 16. Ladif
Shaftesbury v. Arrowsmith^ ub. sup.
Aston V. Lord Exeter^ 6 Ves. 288*
Hfflton V. Morgam^ 6 Yes. 293.
Atlf^m V. Wr^Hy 14 ¥es. 211.

CHAPLIN V. CHAPLIN.

[ S(J6 j
Case 99*

PoifTBii Chapun, on his marring with 'Jitm his wifc^
settled u eonsidelraMe estate of inheritanee on Umaelf for

Lord
Chancellor
Talbot.
life, renuaoder us to part on his wife for a j<nnture, remainder ^^ baa a ion

Us to'tfae whole upon -the first «nd every other «oq of ttie and three

nuria^ in^taol-nale. With remainders over. Pcff^er Chaplin {. ^s^dof

had one son and Ibree daughters, and being seised^ soote J^^^^^^

feesiiBple lands, and :partienlarl7 of an estate of about <30/. others in taO,

per nnnumy not indiided m the settlement, aid Ebei^nse ^^^^^^

rfitpleltete tolibaaasbtef«^aad'dieale|iTti«r«nU»elittdiw fiia fvidow takea Ihe

profita of both estates as guardian to her children ; and in a biU brought by the son mid
Alixg^httffi'iigaHtst'the mother for anaccmiftt of the 'personal ^late and of tWrenta and profits
of thereal estate, the moHiir «weac8, thai she hafe paid hoed debt* doe from the tesUtor out
of the Ititailed estates, and afterwards dies insolreDt. As the answer cannot he read apinst
Ae'Sa«^-hteM, 4md IhA^e is'Ho ^th^r^eMlfnee, and^Ailce the«|f«ardknonglit to have paid the
hoiida cKdy out of the fee^umple esuto; pavmeat jhall be intended to hm been made onlf
dnt of the lund^ which ought to hate borne it.

365

De Term. S. Trm. 17Sft

Chapun.

CHAFLIlf.

[ 366 ]

seised of a leasehold estate for three lives, did by hb WiH
devise all his fee-simple lands (except the lands of about 9(W.
per annum) to his three daughters in fee, and gave several
specific legacies^ without making any disposition of the lands
of about 30/. per annum, or of the leasehold estate for three
livesj and died indebted by bond in the sum of 3000/. and
upwards, and leaving debts by simple contract to very near
the amount of his personal estate^ and leaving all his childiea
infiints.

His widow entered as guardian to her son, and also to her
three daughters, upon their several estates, and in her answer
to a biU brought by her infant children to have an account
of the real and personal estate of her late husband Porter.
Chaplin, she swore, that she, during the infancy of her son
and daughters, received the rents and profits of the estate
settled on the son, and of the fee-simple estate, that was de-
vised to the daughters, and that out of the rents and profits
of the son's settled estate, she paid the bond debts. After-
wards the mother died insolvent.

Lord Chancellor. The answer of the mother cannot be
read against the daughters, who do not claim under her -, it
can only be read against herself and her representatives ; and
since it is not read to charge her, but to charge her daugh-
ters, it cannot be read at all.

But then it being insisted, that the bonds being paid out
of the settled estate belonging to the son, the mother's ad-
ministrator should stand in the place of the bond creditors,
and be entitied to recover the money agauist the fee-simple
estate devised by the testator, the obligor in these bonds, to
his three daughters, and consequentiy, by the statute of
fraudulent devises, liable to the payment of the bond debts.

lAnrd Chancellor. The answer of the mother not being to
be read against the daughters, and there being no other evi-
dence, I will presume^ that the mother applied the rents and
profits of the daughters' estate towards the payment of these
bonds, as far as the same would extend; for this is what in
justice she ought to have done^ in as much as the rents, &c.
of the lands devised by the obligor were liable to the bonds
in the devisees' hands, and the rents of the lands settled on
the son were not liable : this I will rather presume^ than that
the mother did what she ought not to have done^ in applying
tiie rents, &c. of the son's estate, that was settied, towards
the discharge of these bond debts, to which it was not liable*

De Term. S. Trin.MSB. Ml

And his Lordship declared it was not material, whether she Chapliit
did in fact apply these rents, &c. of the daughters' estate to^ ^ ^* .
wards the bonds ; for still these rents, &c. when received by
the mother, shall be taken to reimburse her what she had
paid out of the son's settled estate. to the bond creditors;
for this money was at home, when received by the mother,
and must go towards reimbursing her, and sinking her de-
mands arising by her having paid the bond debts. It was One dies in-
further held by the Lord Chancellor, that the lands per- bond^^pd
mitted to descend to the son, the heir at law, must be liable »c»fd »^®
to the bonds in the first place [A], before the lands devised part of which*
to the daughters, and before the specific legacies. j s^mdo^cr

part he permits to descend to his heir; the lands descended sliall in the first place be linble to
pay the bonds.

In the next place, there arose a question, whether, as the
leasehold estate made to the father for three lives came to the
son on the death of the father, the parol should not demur
during the infancy of the son ?

Whereupon his Lordship held, that in the case of lands in [ 368 ]
fee descending on an infant, the parol shall demur (2) in

[A] The reporter here adds the following note : the reason why, where a man
dies indebted by bond, and devises some lands to J. S. and leaves other lands to
descend to the heir at law, not mentioning them in his will, the lahds descending
to the heir shall be first applied to pay the bond debts, is, beCaase the applying
the lands devised to J. S. to pay the bond debts, would disappoint the will^
which equity will not permit, if it can be avoided ; whereas it no way disap-
points the will to say, that the lands not mentioned should be in the £rs't place
liable to pay the debts. But it seems it would be otherwise, if the testator bad
devised the lands, though to his heir at law ; for* though such devise were void,
(as to the purpose of making the heir take otherwise than by descent) yet it
shews the testator's intent, that the heir should have this land ; and therefore (I
take it) the devised lands to /. S, and the other lands devised to the heir at law
shall in this last case contribute in proportion to pay the bond debts. Also, for
the above-mentioned reason, (I should think) the lands permitted to descend to
the heir at law, and not mentioned in the will, shall be applied to pay the bond
debts before a specific legacy, lest otherwise the testator's intention should IM
disappointed. (1)

(1) Vide Howell Y. Price, ante, 1 (2) Vide Creed y. ColvilHj 1 Vem.

▼ol. 204, note. Longv. Short, ante, 173. Davison v. Goddardj Gilb. 66.

1 vol. 403. Clifton v. Burt, ante, 1 Scarthy. Cotton, Ca. temp. Talb. 198.

YoL 678. O'Neal v. Mead, ante, 1 Uvedaleir. Vvedale, 3 Atk. il7.(x)
Tol. 6»S.

(«) Sweet V. Partridge, 1 Cox 433. Plaskett v. Beeby, 4 East 485. The

9 Dick. 696. The parol will not de- words of the judgment in Powell Vr

mur where the suit is against an infant Robins^ 7 Ves. 209. may seem opposed

devisee under \he 3 W. fe M. c. 14. to this case ; but there the iniknt de-

966 De Term. S. Trm. 173S.

CsAvsm equity w well as at bw ; b^eMias ao iirf«^ k e^fUfiUy uic^
^^ pabk of defbuiiog himBelf ift one coiirl as ^i Ijbe othior i t^
tk£ equitiiUe aaaetd m^ be of ae great irakiA aa tbc l^igali
^ir^toA. I^ where 8k leaae is mafibs to a vaan aad his heii^^ durij^ig
•^d his iMin thcee Uvea, the h^igr doea not talo hj [B] ^eaeant^ hnt j^ 9
A. 4ie8; his ' Special oeeupant, and auch special occ^paoagr was not VfiUf$
t!d^ b^d^^ to pay debta^ until the statute of frauds made i;t asf^j a«4
•oMtt, to M to thougfa it be eaHed a desoe&dible freehold^ it m not nnUy fl^
or toMkedia ^CBcettt^ being QO laore thaa if tiiQve had been a (o) d<M^0na*
p»|^^i||<^» laoQ of any olber peraoo by name to eigc^ the ^atajte for thr«a
sp«M<M^ H?a8» after the death of tb» (Mbor^ inU^ qf tbe hi^ «!

» » J*^- (3)

thftWMBtlkMMbiaMtocendiagwiMiittEuit, Ihe par9l fhovld lMl«a dmiyirv»d ia.9qfiH^.a|
well a« at law. (a) Ante 263. Low v. Barron.

An allowance iMtly, In tibe principal case, the three daughters hftd two
^ma^to n aeraral sums <rf 10^000/. lefk themj to take effect on their
guard]umiu|i £^11^1^ p^^ ChapOn's dying without issue male that should

what the in- attain the age of twenty-one^ charged on several terms for
and wTto^' yeaca commencing on that contingency } but the daughters
i^atG^ia had otherwise very little to subsist on ; and the mother had
a very plentiful Jointure of about 1000/. per annum, o\it of
which, for several years, the daughters were maintained i and
on tlie son's dying without issue male before twenty--one, the
daughters became entitled to the additional sums above-men-
tioned ; whereupon, after the mother's death, on an account
.[ M9 3 (tahen of her ass^, her administrator demanded a liberal al*
lowance for the maintenance of those daughters, who were
now so plentifiilly provided for.

Sui by th€ Lcfd Chancellor. The allowance to be made

,iO\ the mother ;fbr maintenance must have regard to what the

daughters were entitled to at the death of their fiither ; and,

until jthe contingency fell in, shall not exceed the income o^

< jE^chitheir (paginal portions.

^B] For the same reason, where a disseisor makes a lease io a man and his
heirs, dario^g the life of J. S. and the lessee dies, lifipg J. 5., this shall not take
«ray the entry of the disseisee. 1 Jn$t' 439.

(^^^^■^^■^P— — — ^— I 11 II <mi,mmmm^im

'X3)mg.Xib. A^tUM. JSdU M3<liy the joavie ef.Ctft^^yn^v. AgMoms^

visee was also heir at law. See Lech" charged with payment of legacies, the

fasfv r.'Brasiery t J. & W.<900. as to parol shall not demur as to the legacies,

the pasardemarriBg in raits uader- the nor coBseqaently as to debts. SiotM

4r Q.it. sess. % c. 74. Wheie-estates v. VmUmeon^ 3 Cox 386.
devised to an 4a(!uit hair «t- Uw

De Term. S. Trin. I7SS.

MARGARET AND ANN TOURTON i^. FLOWER Cbmb WO.

ET AL\

Job's Claud Tourton^ a great baidt^ at Parity Made him Lord
will, and thereby gave aeveral legacieB, and m«de Me 7%tfb« ChanceUor
son, a Firench Protestant, residuary legatee, and one Mtam ^ »^ ^ ak
numd, an adyocate of the parliament at ParUy executor, and 78. t^- ^l
died.

The testator had two brothers, who Were both dead ; btit
each of them left a son, who were (or at least aUegtod thejr
were) next of kin to the testator Thurtan/ and these tw«
nephews commenced a process at Pairis, to set asiile tfaia
win, 'pending which suit both the nephews died ; ansd their
mothers, the now pkantlflb, took out letters of administi»»
tioDi to their respective deceased stms out of the tpiriki»I
court at Paris, tod then proceeded in their suit to act uMm
the win of Taurt&n. Whereupon a sentence was obtaiMd
to set aside that pbrt of the will, by which the residiftmi
deyised to this 71h^bisan, by reason (as was said) that he^
a Protestaiit. The sentence at Pdm tdso ordsrad, that
Tlieluson should accotifit fo!r so mudb of the tesets as he had
received to the iiow phintifii^, aad d^Uver up tb them all [^70]
secaiitiesyboeks, and writings, relating to the pMMtti «elale
of Ibutton the testator. Hammond the€xecut6r diedf tod
one Pansier took^out letters of 'aidmhiiatratito ktiiie jlne^
rogative court of Canierimy, iiHtiivtlm^will «f TaoPtam, Urn
banker, annexed.

And now the .plaintiffs, the nwthers,- brought their bill
against the defendants Fhwer UtidPanrisr the^administmtor
wUh the will annexed, she^^^teg, that-««vai0d bonds, mrm^
g&ges, and securities, belohglng to Tourtan the banker, were
taken ki the name of the defendant Flowmr, for which the
defendants ought to a^oooM.

The defendtot Fhfjber 'demufi^cd, flicite being no repre-
sentative of the testator Tourtcn before the court ; for though
Pansier, the administrator with the will annexed, was made
a defendant, yet it did not appear but that Hammond the
executor had made a will, and left an executory in which
case the administration granted by the Archbishop of Can-
terbury to Pansier would be void.

370

De Term. S. Trm. 17S5.

TouEToir ' But by the Lard C/umcellor.. Here being an adminiiitn'
— *** tion taken out of the Archbishop's court, I will look upoa
oJtZ'Z] the same to be good.

adminiBtrator of J. S. without ihewing, that J. S. died intestate ; yet an administration tskea
out of the Archbishop's court shall be intended to be a good administration.

Then it was said for the defendant, that admitting the de-
murrer to be ill, for that there was a representative of the
testator Iburton before the court, still thore wanted proper
parties ; because there ought to be administration taken oat
by the plaintifiEs, the mothers, to their sons. Now, though
the mothers had obtained letters of administration in the spi-
ritual ^coiirt at Paris, yet this was nothing to the purpose, as
tidlen noticeof it could not be taken notice of in our courts ; and though, it

Administra-
tion ffrantcd
Inarordgn
court (as at
Psris) not

in our courts.
[ *371 ]

was true, this was not the demurrer upon record, yet the
defendant was at liberty to demur at the bar ore tenus.

Lord Chancellor. The defendant may demur at the bar
ore tenm (2) ; and this demurrer, for want of the plaintiffi
having taken out a good administration to their sons, is a

Onci may de-
mur anew at
the bar ore
tenus; but

being aUowed, Sufficient cause, for without it the plaintiffs can havie no
hecaniMthaTe right, and our court? can take no notice of what is done m
the spiritual court beyond sea : therefore the demurrer must
be allowed, but without costs; because the demurrer on re-
cord was an ill one, and the plaintifib not to blame to argue
it ; but then neither ought the plaintiffs to have costs, the
bill appearing to be ill, and to want parties, forasmuch as
I>roper administrators to the sons are not before the court.

Note. What is said in 1 Fern. 78j JDurdant v. Rednumj
that costs ought to be paid for a new demurrer insisted on at
the bar ore tenus is not now the practice, (y)

(s) Bat it must be to that io which
he has demurred on the record. Pitts
v. Shorty 17 Yes. 215. And he can-
not demur by parol when he has put in
a plea only. Durdant v. Redman, 1
Vem. 78. Hook v. Dorman, 1 S. and

Cy) Broder^ v. Phillips, in note to

Durdant v. Redman, ub. sop. Wood
V. Thompson, 3 Dick. 510. Cawthom
V. Chalie, cited in Beames on Costs,
224 n. (26) : but see Attomey-Generai
V. Brown, 1 Swan. 288, where Lord
Chancellor Eldon says, the defendant
availing himself of a demarrer ore tenas
must pay the costs of that on the record.

De Term, 8, Trin. 1785. 371

TAYLOR V. SHARP. Case 101.

In this case it was laid down as a rule by the Lord Chan- Lord
cellor, that if a decree be obtained, and that decree enrolled. Chancellor

Tat nn'P

80 that the cause cannot be reheard upon petition; the party
grieved can in no case set aside this decree^ or obtain relief 177? pi.^19. *
against it by an original bill; for then the decrees of the if a decree be
court would * be opposite and contrary the one to the other^ enroll^ 'so
which would breed the utmost confusion. Wherefore the that the cause
only remedy in such case is by bill of review^ which must be heaid ; then
either for error appearing upon the face of the decree, or upon *^*J* bu°°b5^"
some new matter, as a release, receipt, &c. proved to have bUl of review,
been discovered since ; for unless this relief were confined to on error ap-
such new matter, it might be made use of as a method for a pcaring onthe
vexatious person to be oppressive to the other side, and for decree, or on
the cause never to be at rest. (1) mSter^as a

release, or a receipt discovered since.

[ ♦STS ]

(1) Tide Standish r. Radietfy^ Aik. ley v. Birkhead, 3 Atk. 809., and 2
177. Gould V. Tancredy 2 Atk. 533. Vei. 571. S. C. («)
Narris v. Le Neve^ 3 Atk. 27. Wort"

(z) Anon. Freem. 31. Lord PortS" ley^ 16 Ves. 348. Pern/ v. Phelps,

mouth V. Lord Effingham^ 1 Vez. Sen. 17 Ves. 173. O'Brien v. Connor^ 2

430. Worge v. Bradley, 2 Dick. 570. Ba. & Be. 146. Manaton v. Moks-

Wilson T. Webby 2 Cox, 3. Willan v. worthy 1 Eden, 25.
Willan^ 16 Ves. 86. Young v. Keigh-

VICK V. EDViTARDS. Case 102.

^. DEVISED lands to J5. and C, and the survivor of them. Lord
and the heirs of such survivor in trust to sell. The estate Chancellor
was decreed to be sold; and it being referred to the Master Talbot.
to see, whether the parties could make a good title, the Mas- \n^'^^!^^'
ter reported that the parties could not make a good title. Lands are de-
there being no fee-sunple in the trustees, for that the re- B**nf t^;"*^

liein of the suiriror in titist to sell ; thongh the inheritance be in abeyance, yet the trustees by
ji fine may make a good title by estoppel

VOL. III. X

37* De Tecfik. 8. Tiin. tlSS.

VicK mainder in fee could only be vested in the survivor^ and it
Edwards. ^^ uncertain which of the two trustees would be the sur-
vivor.

Whereupon^ exceptions being taken to the Master's report,

the Lord Chancellor held^ (1) that the trustees joining in a

fine o^the premises would pass a good title to the purchaser

by esti^pet (a) ; that here the fee was in abeyance, and as,

(*) Bradstock whef^ the ektest (A) son of tenant in tall levies a fine, and

Cro. Carlui, Mwvives his father^ Aough he afterwards dies without issue,

*^ - yel this will paiss a good title, as long as the tenant in tail

^ •* has issue, and thereby conclude the youngest son, who must

derive his descent from the eldest, notwithstanding the latter

al the time of the fine levied had- nothing. So in the principal

case it was certain one of these two trustees must be the

sttrvivoi^ and' entitled toi tbis- fhture interest ; consequently,

bis heirs ch^ooing' under- him woidd* be estopped, by reason

of the fine levb^ by their ancestor, to say partes Jinis nihil

Mbueruniy although he t^t levied die fine had* at that time

no right or title to the contingent fee. (2)

And it being said by the counsel, that the heir of the de-
visor would join in the conveyance to the purchaser; his
Liovdship replied, thiM^ the haic's joining would supply the
want of pvoving the will, but tliat in every other respect it
would be void. And the nAt day his Lordship cited the
case of fFeak v, Eawer^ m Fotk^fen*s Reports^ 54, where
a fine was. adjudged to pass an estate not vested, by way of
estoppel,' and to convey the interest of such ^estate which
accrued by the. contingency happening afterwaj;4».(*).

(a) Quwre^ If any thing could operate by way of estoppel in this case, because
an interest passed ? See 1 Inst. 45. a. 47. b.

■ ■ - ■ '

(1 ) Reg. Lib. B. 1734. fol. 4^4. note 1% Frame's Cont. Rem. 4th Edit.

IV Vide Harg. Co. Litt 191. a. 1 vol. 5^.

(z) Helps V. Hereford, 2^ B. & A. 242.

D« T«fih. S. TVm. 1739. 373

iAJXtaSi t. STEPHENS. C«se 103.

Thb plaintiff was the eldest son and heir of J, S., and claimed Lord
as issue in tiul under a settlement. The defendant entitled Chancellor

TaLiBOT

himself under the tenant in tail, and shelved that the tenant *

in tail had suffered a recovery. The plaintiff brought a bill 241. pi. 31.
for a discovery of the writings and of the deed of settlement^ An hrfrat law
and the defendant insisted that the entail was cut off by a fendant, and

T>pr*nvprv insists on his

recovery. title; he shall

Imre his costn, though it goes against him; but if an heir at law be plaintiff, and mirt:arries in
his suit, he shaU not have costs ; but, on his suit appearing to be gproundless, shall pay costs.

The cause being heard, it was decreed that the writings [ 374 J
sbouM be brought before a Master, and the bill retained for a
twelve-month ; and in the mean time the plaintiff to try his
title in an ejectment. Accordingly the plaintiff brought an
ejectment, when a verdict was found for the diefendant.

And the matter coming on upon the equity reserved touch-»
rag costs ; on the behalf of the plaintiff it was objected, that
lie was an heir at law, and appeared now to be a disinherited!
beir ; that he had a probable cause of suit ; and it was enough
fbr him to lose his estate, without being punished with costs *
into^ tile bargain, which would be qffRcHonem (xfflicto addere.

Loffd Chancellor. When an heir is made a defendant to a'
biH: brought to prove a will, there he shall have his costs (a) ;
but in tiie present case he is plaintiff, and comes here for the
aid of the court, and to be famished with the deed of settle-
nxent,' which aid he has had j and at length it appears that
thtis his appfication to the court was groundless, fbr that his
til!Ie is barred by the common recovery of his ancestor,
-which prima fade is to be presumed regular, and there is no*
fault in the defendant, nor any reason he should lose his costs.
Oh the contrary the plaintiff, in contesting the common re-
do^ery suffered by his ancestor, appears to have been in the
wrong, and ought to pay the costs of the suit. (2)

(a) Even though he cross^eTcamines the plaintiff^s witnesses, and refuses to
r^iWase his right ; otherwise, if he examines witnesses of his own. S^ vol. 2. 285.
Sidulph ▼, Bnlulph.

■ n ' !i I ■ ' ■*— ■

^z} Sealyf. BroanionyS Bro. CO. 316. Blinkehome v. Feast, 1 Dick.
314. Raskley v.Mastersy I Yeff.Jmi. 153, and see Shales v. Barringtan,
V}6. White V. WiUon, 13 Yes. 90, ante, 1 vol. 48%
Fan^Mm V FHzgerald^ I Seh. & Lefi

375 ^ De Term. S. Trin. 1735

Case 104. MARGARET SHARP v. RICHARD CARTER AND

WILLIAM EVANS.

Lord Onb William. Jennings was seised in fee of the manor of
Ta**^^ ^' 7>/mer'* Court y in Oxfordshire; and having no issue nor wife
Defendant not ^^^^ ^^^^"Sj ^^^ having a sister, the plaintiff, that was his
bound to an- heir at law, (but whom he never corresponded with, nor
tends to accuse ^l^^^^^^ any kindness to, having frequently declared he would
him of main- leave his estate to his wife's son, one John Evans^ with whom

teoanccy or of . -, ,,^ iii <i<i ^.-i. %

bnyinff pre- m his ufe he had entrusted the management of his estate and

iHiMn £f su- co°c®'^'^j to whom he had given the keys of his closet where
tateof32H.8. all his Writings were); this fTiUiam Jennings made his will
dated the 5th of November, 1731, whereby he devised the
premises to the said John Evans in fee. But the plaintiff
set up another will made subsequent to the former, and
bearing date the 18th of January, 1731-2, whereby the said
testator Jennings devised the premises to his sister the
plaintiff Margaret Sharp in fee. There were some circum-
stances by which it appeared, that the plaintiff Margaret
' Sharp did herself seem to mistrust the will under which she
claimed. But at length she brought an ejectment, which
being tried at the assizes at Oxon, she there recovered a ver-
dict. Also some part of the premises being in lease, and the
leases in the possession of the defendant Evans, who claimed
under the first will, the testator's sister Sharp brought her
bill in this court against the said John Evans, shewing that
the leases then subsisting of good part of the premises did
hinder the plaintiff's proceeding in the ejectment, and
praying that the matter might be tried by an issue, devisavit
vel non,
f 376 ] The court directed the said issue to be tried at the bar of
J3. a. by a special jury, which accordingly was tried, and a
verdict found for the plaintiff the testator's sister.

Whereupon a decree was made, that the plaintiff should
hold and enjoy the premises ; and that the defendant Evans
should deliver up all the deeds and writings to her. The
title deeds were demanded of the defendant EvofiSy and he
for not delivering them imprisoned in the Fleet, where he
died. And now the plaintiff Margaret Sharp the sister,
brought a bill against the defendant Carter and fFilKam

De Term. S.' Tfin. 1735.

876

Evans, the son and heir of the said John Evans, setting
forth these recoveries of the two verdicts j that the defendant
Evans's father died in prison in contempt, without having
delivered up the title deeds ; and that the defendant Carter
had got several of these deeds in his possession, pretending
to have made a contract with the said John Evans, (the de-
visee by the first will) for the purchase of the real estate late
of the said fFilliam Jennings, and to have advanced some
money on that account ; and the bill charged, that if the de-
fendant Carter did make any such contract, it was after he
had jiotice of the will under which the plaintiff claimed; and
that such money wals advanced by the defendant Carter on
account of suits, and to carry them on.

As to such part of the bill as prayed a discovery of any
and what monies paid or advanced by the defendant Carter
to Evans, on account of the suits in the bill mentioned, or
for carrying on the same ; it appearing that the defendant
Carter was not a party to the said suit in the bill so charged
to have been carried on: the defendant Carter demurred
thereto 5 for that the praying of such discovery had a tend-
ency to charge the defendant with maintenance. Also, as
to such other part of the bill, which sought to discover any
contract or agreement made or supposed to be made between
the defendant and the said Evans, for the defendant Carter's
becoming a purchaser of any part of the real estate in the
bill mentioned to have been late the estate of the said fFil-
Ham Jennings; the defendant pleaded the statute of 32 ff.
8. cap. 9. sect. 2. made against selling or contracting to sell
any pretensed (L e. controverted) rights or titles, " whereby
*' the person bargaining, giving, or selling, their antecessors,
^ or they by whom they claim, must have been in possession
" of the same, ot of the reversion or remainder thereof, or
" have taken the rents or profits thereof, by the space of one
whole year next before the said bargain, &c. made ; upon
pain that he that shall make any such bargain, sale, cove-
nant, promise, or grant, shall forfeit the whole value of the
lands, &c. so bargained, &c. and that the buyers and takers
thereof knowing the same, shall forfeit also the value of the
^ said lands, &c. so by him bought and taken as aforesaid,
'^ one moiety to the king, the other to the informer." And
in regard that, if any such contract or agreement had been
made betwixt Evans and the defendant Carter, for his be-
coming a purchaser of the premises, it was made after that

Sharp

Carter.

[377]

377 De Term. S. Ttin. 1735.

j^HARp JE/v€m$ was p^t out of posaessioQ by order of iliifi oouit^ aod

^ ^* a recejiver appointed for the same ; the defendant pleaded the

^^^^' aaid statute of 32 H. &, and that the plaintiff 's eeekiBg ameh

idiacovery did tend to subject the said defendant to the bay-

feiture of the value of the land in the bill charged to haire

been contractisd fori and the defendant disclaimed any right

[ 378 ] to the prenuses oljierwise than by a mortgage that he bad

thereouj and disclaimed any right to the title deeds | and by

his answer said^ he had delivered back all the said deeds to

the mortgagor Evans^ from whom he received l^e Moie.

Also^ the defendant by his answer ssdd^ that at first he lent

100/. to the said Evans on his bond only, and that he afters

wards lent another 100/. to the said Evans^ and took the aidd

Evans's mortgage of the said manor for his security.

It was said for the defendant Carter, that the bUl as to lam»
being only for die title deeds, and he having sworn that he
had delivered all of them back to Evans the mortgagor, f rem
whom he had received them ; the rest of the charge of the
bill could not be relevant; but now appeared to be thrown
in only to satisfy the plaintiff's, curiosity, or to subject the
defendant to further trouble on some criminal prosecution 4
and that the advancing of money towards oarryii^g on a anil
to which the defendant was no party, must be mainteoanoe,
unless where the person so advancing, &c. be the huabaad^
father, or guardian, and so on that account allowed to dis-
burse the money ; and that if this were but doubtful, the
court ought not to compel an answer.

On the other side it was urged, that the advancing moneyy

unless the party advancing was to have part -of the thinjf J:e-^

covered, is not maintenance.

teregted*intiie ^^^^ Chancellor. Unless every advancing of money to*

premises (as a wards canying on a suit for a third person be maintenance,

Z'^^e be {^^ch 1 think is not) then the defendant Carter cannot in

no party to the the present case be guilty thereof; because he appears to be

pend money in & party interested (a) *by virtue of the mortgage so made to

SfiTiithoat* ^^ ^ aforesaid ; and though he be no party to the suit, yet

being gniityof as he claims a mortgage on the estate, he may lay out money

C^^SeeMkrar. ^^ supporting the title: wherefore this not being main-*

^^* tenance, the demurrer is ill*

[ *379 ] Q^^ ^^^ p]^ ^ ^g statute of 32 H. 8« against contracting.

for pretense^, i.^* contcoverted rights, seems to be good«(2)«—

S9B0E3B^f(9WfV

De Term^S. Trin. 17S5. STO

Not that I think the appointing a receiver is, in every case, Sharp
a turning the party out of possession. For instance, where ^ ^*
an infant is entitied, in such case there can be no colour to The tJJSSl
say, tliat the appointing a receiver (which is truly and pro- *»» * receiver
pcrly the hand of the [C] court) puts the infant out of pos- !iL« taraing
session. But where there is an adversary suit, and two per- *^* P*^^ ?^^
Bons (as in the present case, the pkintiff Sharp and Evans,) as where a re-
are contending for the right, and the plaintiflF Sharp brings ^^"^
her bin against JEvans, in order to recover the possession; infant's e»utc,
and Sharp having on the first verdict obtained by her pro- Se'rewil^i
cured a receiver to be appointed, ^nd such receiver having i»w«»«on is
been, on the last verdict that was recovered At the bar of the of t£e infant
King's Bench, ordered to surrender up the possession to the ^Lti°ng^r *^'
plaintiff Sharp : I cannot in this case call the possession of receiyer in an
the reoehm the possessioii 0f the defendant Evans s but ra- H? wh?reSl*'
ther the possession of the plaintiff Sharp, who appears to jl*ctmenrhai
have the right to the premises. Neither can I say, or *hold. rccoyered a
that the defendant Evans was the person in possession for a thclweiJer'T
y«ar next before * the defendant Carter's contracting for the po««wiob
purchase of the estate j and since it may be puttii^ a diffi- Sfpossession
eiihy on the defendimt Cor^ to compei Mm to answer t6 ^^^Sto^'it!
thift part^ the bill, I do therefore allow tke plea of thfe sta^ [ 3^ j^
tttle of S2 H. 8. J^gtiiM the cohtractini^ for pit^t^d. (or
€5i»tttatoverted) rights or titles. (1)

[C J For this reason the court will proceed to put a rejceiver in possession in a
summary way; and will order the tcfnants to attorn to him, and grant him a writ
of assistance, withmit first awarding an injunction for the possession, which in
other cases is the usual process. 4th of Oct. 1718, by the Lord Pnrker.

— • • •

(1) Reg. Lib. B. 1734. fol. 392.

381 De Term. & Michadis, 17S5.

^ ^. ^^ ^;7

wf"

TERM. S. MICHAELIS, 1735.

Case 105. BLUE v. MARSHALL £T UX'.

On the DefendanVi Exception to the Moiter't Report after

Hearing.

Lord The plsdntiff was the widow of James Blue, who by his will
Chancellor gave a legacy of 200/. to trustees, in trust for the testator's
Talbot, ^jg f^^ j^^^. jjj^^ ^ ^ afterwards for his daughter the defend-
464?'pL^3. ' ^^^9 -^^ Marshall^ tor her life, and afterwards to her children
2r?^ aLIS*" ^^ plaintifib. The bill was brought to compel the defendant
anezecatoror Marshall, and his wife, (who, on the executor's renouncing^
^^ndingoT ^^ ^^^^ administration to her father with the will annexed)
releasing a to pay this 200/. into the hands of the trustees, to the intent
swer foMhe^* ^^^ plaintiff, the widow, might have the interest for her life.
Mme ; yet, if ^q defendant insistefl upon want of assets.

tbis appears to

have been for * On the hearing of the cause the decree was, that the de-
the tmieB^^ fendants should account for such part of the personal estate
ute^it is an of the testator Blue^ as came to the defendants' hands, or to

excuse

r »3g2 1 their use. The Master reported, that the testator Blue was
possessed of' a term for sixty years in a messuage and lands
at Bethnal Green in Middlesex, which the testator had let
to one Dallotv, for thirty years, at 100/. per annum, which
lease was decreed, among other things, to be sold for the
payment of the testator's legacies ; and that at the time of
the death of the testator there was 125/. due for one year
and one quarter's rent of the said messuage and lands ; that
after the testator's death there was 100/. more due for a
year's rent ; and that the said Dallow the tenant soon after
became insolvent, and unable to pay the said arrrears of rent,
being 225/.; upon which the defendant Marshall, and his

De Term. S. Michadis, 1735. 383

wife, without confiulting the plaintiff, releABed to the said Blue
DalloWf not only the said arrears of rent amounting to 225/., Mab^'halu
but also gave him 20/. out of his [Marskalt*8] own pocket,
upon condition that the tenant should forthwith quit the
possession of the said messuage, which accordingly he did ;
and thereupon the leasehold premises were sold for the pur-
poses in the decree. But the Master charged the defendant
with the said arrears of rent of 225/., it being the voluntary
act of the defendant to release them ; but allowed the de-
fendant the 20/. which he had pud out of his own pocket.
Upon which the defendant excepted to that part of the
Master's report.

And for the phuntiff it was objected, that whenever an
executor, administrator, guardian, or trustee, will of his own
accord release a debt, this being his voluntary act, he shall
answer for it; and the rather in the present case, for that [ 383 ]
the defendant, who made the release, ought to have first
asked the plaintiff for her consent to the making of the re«
lease; or, in case of obstinacy in her, to have applied to the
court for their directions in the matter; and though it might
be true, that the tenant was at that time insolvent, yet here-
after he might become solvent, and able to pay the rent ;
whereas, in case the tenant should ever become capable of
paying the rent, this release, would extinguish it ; and as to
the gaining of the possession, that was of no great value,
there being a proviso in the lease for the landlord's re-entry
in case of non-payment of the rent ; so that the tenant's
giving up the possession was no more, than what the land-
lord could recover by law, without the consent of the te-
nant.

Lord Chancellor contra. The defendants are decreed to
account for all the personal estate that came to their hands,
or to their use ; but these arrears of rent were neither re-
ceived by them, nor did they come to their use ; and the te-
nant becoming insolvent, the estate has not suffered by this
release, in regard, if the arrears of rent had not been released,
the defendant could never have gotten them, when the te-
nant was unable to pay them ; and if the testator's estate
has not suffered on account of this release, there is no reason
it should gain thereby.. The defendant seems to have done
nothing but what was prudent. A vexatious tenant may put
his landlord to great . trouble and delay by a wrongful de-
tainer of the possession, and by damaging the estate in the

38S De Term. 8. MiokadU, 1735.

JB»0s mean time ; and may force the' I&ndtord to ^ectments, wril»
^ ^ of error, and biUa in equity, by means of which he may loae

not only his accruing rent> but his costs of suit ; so tfait
this release seems to be for the benefit of the testatcnr's
estate.
[ 384 1 Neither willl make a difference between the 2(M. allowed
by the defendant, and the release of the arrears of reftt; for
both were but one entire consideration for the tenant's ^t>
ting the possession ; and by the same reason that .the de-
fendant has been allowed the one, he ought to be allowed
the other. It is moreover a strong presumptive aigoment,
that the defendant has acted fidrly, and according to what he
thought was for the advantage of the estate; abce the
other defendant, his wife, is to have the benefit of the 200/.
(now sued for) after the widow's death, for the advancement
of her and her children^ and consequently is a sufferer by the
tenant's becpming insolvent, as well .as the widow.

Therefore allow the exception, And let not the defieadaat
be charged with these arrears of lent.

<^^^

(^'1 1

;^3

Cuie 106. ASHTON v. ASHTON.

On an Appeal from the Decree at the Molls.

Lord Thb case was thus : The testator had no more than 5360/«

Chancellor South^sea annuity stock, but by his will bequeathed the sum

C Jtem"°™ ^^ GOOO/, South-sea annuity stock to trustees, fai trust to

152. * sell and invest in land to be settled on his nephew, the

658?'pK28^''* plwntiff for life, remainder over; and until the purchase

One devises should be made^ the nephew to have the interest or dividend

eooo^'soiith- ^ ^^ South-sea annuity stock for his life. The question

j^**^*^d A ^''*** whether the rest of the testator's personal ♦ estate,

testator has which was very considerable, should be liable to make it up

more^tSi' Ae ^WK)/., or whether no more passed by the will thaji the stock

5360/. sbaU pass ; and the rest of the testator's personal estate not be obliged to make it np
60001. But it myMb^olhimfe,il.UiaMtalwaadnojiockalalL

[ ♦385 ]

De Term. 8. MichmJikr USB. 385

wbiqb Ite^toitotQr «ft3 poMM»e4 of at the lime of n»U]|g AM«m

The Abater of i)ii» RoUs hs^ decreed, ihet BosMMre pMMd '^^
by die will tiifiii (be 5360/^ JS(mtk-m$ aomiity stosl^ lifbkh
Ihe teetaAcHT was fmae^sed ef . And new ihe ivuae coxaing
m :befere tifte I^ord ChaneeUpr upon ftnuiveal,— *

It was ergpwMl f»r tbe plaintiff, that Ijbe defideocy ouj^ to
be nadf iip'out <if tbbe reet of the tertatoor's penonal eatate ;
tor Ibat bere was plainly a mietaVe io the testnlor, who jii-
tmded Hbe £uU lefaey of 6000/.; titatthis was a^-aiiecificie-
giaey, which in law Is faygured, and allowed a prefbsoDoe
before others ; that if the teerMor had at that time no stkiok
«l all, the whole legacy must .ha^e been «ade goicNl out of
Am «iat of the pevsoniri estate ; mid jttiere aeemedrto.be stiU
more reason to sui^y the email ^efimency; and it waa
compared by Mr. Fazakerly to the case in 2 X«on. of a
man's devising his land in such a place^ where he happened
to have no land, but had tithes and it was held, that the
tithes should pass.

But .the Lord Chancellor Affirmed the decree at the Kolls, .fipccifieiags-
observing, /Irst, that though specific legacies have in some Sw^^cto
respects the advantage of those that are pecuniary, so as to th<?y bare the
be paid in iotOy and not in average, on a deficiency of assets; in others they
yet, in other respects, they are fflstingiiished to their (a) dis- JS^n^'^
advantage from pecuniary legacies; as suppose Ihey shall iiecwwy
have been lost or aliened by the testator in Ub lifetisne, they (ofscerd. i.
must Aen fcii m ioto. 540. iltat«i

* Secondly y That where one devises a debt due to him, where the
after which the debtor, uncalled upon, pays in the debt to tcsutor de-
the testator in his lifetime; this would certainly be no ^'diifterwtfds
ademption of the legacy ; here being no act done by the tes- '^^'^/''j^**'
tator himself, but by the debtor, who might oblige the other in, in neither
to receive his money ; and that so indeed he thought it S^ption^or
would be, where the testator himself should call for the debt, thcJtegaoy,
seeing this might be, done from an apprehension of such debt *- ^

being in danger, and with a design to secure it, and being
personal estate, and not diminished by remaining in the tes-
tator's coffer, instead of the hands of the debtor, it may well
pass by the will. (1)

But that, thirdly y In the principal case it did not appear

(I) Vide Earl of Tkomond v. Earl of Suffolky ante, 1 vol. 465. Rider v.
Wager y ante, 2 ?^ .330.

^386

De Term. S/ Michaelis, llSo.

ASHTON
ASHTON.

One huno
land in A. bat
baa titbea
tbere, and dc«
▼iaea all bis
land in A.; tbe
titbes, as tbey
are issuing out
of tbe land,
and part of tbe
profits tbereof)
aball pass.
(a) See Day v.

the testator ever had more than the 5360f. South-sea an-
nuity stock ; and regularly speakings without some plain
words manifesting an intention to that purpose^ no property
shall pass^ but what the testator was himself possessed of;
that it is more natural to suppose a man intends to give
what he has than what he has not ; that in the cdse cited
from Leonards JReports, the tithes were held to pass, as
these are issuing out of the land^ and are part of the profits
thereof; but principally, because the testator having no
lands there, the (a) whole must otherwise have been re-
jected; and so possibly in the principal case, had the
testator, when he made his will, &c. had no stock at all, the
whole might have been to be made good out of the rest of
the personal estate; whereas the stock he was then possessed
of does in some measure satisfy the will.(l)

Trig, vol. 1. 286.

(1) Reg. Lib. A. 1734. fol. 151.
1735. fol. 112. Et vide Hinton v.
Pinke, ante, 1 vol. 540, Partridge
V. Partridge, Ca. temp. Talb. 226.
Purse V. Snaplifiy 1 Atk. 414. Jef-
freyi v. Jeffrey s, 3 Atk. 120. Avelyn

V. Ward, 1 Vez. 424. Sleech v. Tho-
rington, 2 Vez. 562. Drinkwater v.
Falconer, 2 Vez. 623. Bishop of
Peterborough v. Mortlock, 1 Bro.
C. C. 565. Jshbiimer v. MacgmrCf
2 Bro. C. C. 108(2)

(2) In Wilson v. Brownsmith, 9
Ves. 1 80. the Master of the Rolls says
the principal case has been overruled :
but in Simmons v. Vallance, 4 Bro.

C. C. 348. it is npheld upon the direc-
tion to the trustees to sell the stock
and invest the proceeds in land ; and
see Mann v. Copland, 2 Madid. 223.

Case 107. GOODWYN v. LISTER.

[ 387 ]
Lord Thomas Goodwyn, the plaintiff's father, entered into ar-

Oiancellor tides with Thomas Poole, dated the l/th of March, 1729,

Talbot, j^j. ^^ purchase of a tenement called Hardings-MiUwood,

by which Poole covenanted for himself and his heirs to

convey the said tenement before the 21 st of March then next

ensuing ; and in consideration thereof, Goodwyn covenanted

to coDTey^ to pay 705/., the purchase money.

extends ooly

to plain and ezpreM triuts, not to such bb are implied, or construcuVe only.

2 Eq. Ca. Ab.
521.pl. 7.
The statute
enabling in-
fant trostees

De Term, 8. Michadis, 1735.

S8T,

Poote died in the December following^ before any convey-
ance was made in pursuance of the articles: upon whose
death the premises in question descended to Hannah the'
wife of Thomas Lister, and Elizabeth, the wife of JFilliam
Ford, (twa of the daughters of the said PooUt) and to Ri-
chard Bagnalj an infant, the eldest son of Mary BagnaU
the third daughter of the said Poole. Goodwyn the con-
tracting purchaser died ; and the plaintiff, as his eldest son,
and heir at law, brought this bill to have the estate conveyed'
according to the directions of his father's will, upon payment
of the piurchase-money by the executors therein named. .To
this bill amicable answers were put in, submitting to the di-
rection at the court.

The only question was, whether the two daughters of
Thomas Poole, and Richard Bagnal, the heir at law of the
third daughter, were trustees within the act of 7 Annas, cap.
19. intituled, '^ An act to enable infants, who were seised or
'^ possessed of estates in fee in trust, or by way of mortgage,
^^ to make conveyances of such estates ;" for if they were
within that statute, then they might be decreed to convey,
though Richard Bagnal vtbm an infant : but if the articles did
not raise a trust within that statute, in such case the plaintiff
could only have a decree, that the two married daughters,
who were of age, should convey immediately what was
vested in them by descent; and that he should hold the
share of the infant till he came of age, with liberty for the
inCftnt then to shew cause, why he should not convey such
share according to the articles. '

Lord Chancellor, There can be no doubt with regard to
express trusts by deed, but that an infant, being a mere
trustee, may be ordered to convey ; and there is no incon-
venience in directing an infant to part with an estate, which
is of no benefit to him. But the present question is, whether
this, being a trust onfy by construction of equity, be within
the act ; and here I incline strongly to the negative. Indeed,
with regard to its being a trust, there can be no doubt but
that it is so ; for whenever one nian enters into articles for
the sale of an estate, and agrees to convey it to another, in
consideration of a sum of money engaged to be paid by that
other person i from the time the articles ought to be per-
formed, the one becomes entitled to the estate, and the other
a creditor for the purchase-money ; and so there can be no
difiBculty in decreeing a performance of the articles. But I

GoonwTH

Lister.

[ 388 ]

9H( D^Term. SL MkchadiM, VIdi.

Gomffnt eflmit tUnlt cottitnictire ttaat* tcr bave beta iKtbrn the
^ *' t4ew of tkn. atot of paiMEMtncaity which does not latiat pro*

ttakxi Ibr xahokt^ to conirey in pnrauance of the dDCieeBof
tiriB court, btfl onfy giv^ power to make erdeii in a> Burn-*
mwy way> in- eades that are origmaDy plam^ and vneontxo-
verted by tlir partieav

Whetefone, this eascr seeming to his Lordship to be left to
the common hm, as thai stood before the making of the act,
[ 389 ] it was decreed^ that Hbe two daughters should contvy imme-
dialely^ $n<) that a day should be gnren for the inftuit B^md
to shew eauae within six months after he shonid conss of age,
wiA' libevtjr to the- plaintiff to apply to the court, in case any
precedents could be founds where such constmcti^e trusts
had bee& held ta^ he within Aat statate. See voL 2. 549.
JE»' parte Vernon. [A]

[A] A. owed dsvcial debte, aftd by his wUt deviBed lands in fee Uif an infant,
charged with all hia debts and legacies : the personal estate was greatly defi-
cient; and the chief end of the bill was, that the infant might be enabted to sell
so much of the real estate, as would suffice ibr the payment of the debts and le-
gacies. It was aduitted the. intknt cduld-not (as yet) be: said to be a bare trus-
tee for the creditors) &o« siane he had the sarpkiJs (the greatestpart of the estate)
to his own use: bat it was insisted, that when the Master should have ascer-
tained the debts, set out' what were the proper lands to be sold, and what would'
be sufficient for the paymeirt? of the' debts^ and legacies, then the inftnl as to
these lands would be a bare truniiee; and at this act was remedial, and made to
supply what waa before: a defect in the law, it was but reasonable to enlarge it
by the most favourable construction.

Cur*: It is very true, this is a remedial law : but still the principal: case is not
within it, in regaid Hie sise: only extends to cases wheite the iniluit is a bare trus-
tee originally, and at the death of the testator, not where he is made such by
several subsequent acts done by a Master, in< setting forth what debts and lega-
cies there are, how far the personal estate is deficient, and what part of the land
is fit to be sold; which peport will^ consist of several matters, which the infant,
when of age, may be advised' to controvert;; and therefore this will not render
the infant a trustee for these lauds witliio the act. For which reason the court
refused to make a decree, that the infant should join in the sale, but directed
the Master to take an account of the debts and legacies, and of the personal
estate, and what defkieifcy thefe was therein, as ateo what part of the real estate
was fittest to be soldi; the infant to< convey when of age. Unless he should shew
cause to the contrary within six months after he should come of age. At the
Roils, Anonymom^ Trinity Vacation^ 1730 {z)

See 4 Geo. i. ccpx It). wHereby idiots, lunatics^ &rc. or their committees, ^y
the direction oft thn Lonli Chauueltoiv umy assign iHrer tlheir trusts or mortgageS|

Ma*te«fla^MrtM«tiakMta.^pMMMMft'

(«) See Atiomeji'-GeneralY. Pom^ 310^ Ex parte Tutin^ 3 V. & B. 149.

frety 2 Cox, 22t. Ex parte Bellamy^ Ex parte Carter^ 5 Mad. 81. And

2 Cox, 4«. ^ -r. Jfamkoclt. 17* the case* cited* Ex parte ^^trmn^ ante,

Tea. 383. Ea^purtk Bsdiiumif.\lpisaf. 2:v«lL.d40itt%

B& rem. 8. MkhaeHs, 17%. 3S9^

•att be ordered to mdtie stttk ootHreyances*, in like m^amet na trustees or nort-
fS^^H of wm memorj. (p)

fjF) Uodor iFiis statute a trastee c. I0» supra, andls^Teraf other statutes

cettU not. lie ordered to coorey, unless in pari maiinimf renden a comnission

he had been foand a huatic under a unaecessarj. The lunatic must be with-

comqiission. Ex parte Gillanty^ Yes. out interest, and have no duty to per-

JoB. 587. Bwt the 6 6. 4. c. 74. which form. Ex parte Tutin, nb. sup. Ex

consolidates, this statute, the 7 Anne, parte C'urrte^ Ij. & W. 642.

DUBCE OF SOMERSET v. COOKSON. Case 108.

[ 300 ]
Thb< Dake of Somerset y as lord of the manor of Corhridge, Lord
in Iforehumberlandy (part of the estate of the Piercys late S|l^^"®'
Earls of Northumberland) was entitled to an old altar-piece ^pja c Ab
made of silver, remarkable for a Greek inscription and dedi- i64. vl 28.
cation to JBkrcules, His Grace became entitled to it as ^^peiAc^©-
treasure troye within* his said manor. This altar-piece had livery of an
been sold by one who had got the possession of it, to the de- other curiouty
fendant, a eoldsmith at Newcastle^ but who had notice of the hi specie.
Duke's chtfm thereto. The Duke brought a bill in equity to
compel the delivery of this altar-piece in specie^ undefaced.
The defendant demurred. as to pant, of the bill, for that the
plaintiff had his remedy at law, by an action of trover or efe-
Untte^ and ougbtnet to bring' hi^ bilt in equity ; that it W9»
tmie, for writings saivouring ofthe' realty a bill would lie, but
not fbr any tiling (I) merely personal; any more than it
would for a* horse, or a cow. So> a bill' might lie for an
beir-Joom; as in the case of Puaeyr. Pusejfj 1 Verru 273;
And' though in /rover the plaintiff could have only damages,
yet iii>datfn«o> the thing' itself, if it can be f&und, is to be
recovered; and if such bills as the present were to be
allowed^ half the actions of trover woidd be turned intorbillB
in chancery.

^^OT^i^-vww— «i^

■■!■■'

(1) Vide Cud v. Rutter^ ante, 1 voj. 570. Colt v. Nettervilk^ ante, 2 vol. S04.(zy

(zXFelU y. Read, 3 V^B. 70. Lloyd v. Lowther, 13- Ves. Q5. Earl of
V. Loaring, 6 Ves. 777. Nutbrown Macgle^eld v. Davis^ 3 V. & B. 18.

TkKnmton

390

De Term. S. Michaelis, 1735,

Doke of
Somerset

V,
COOKSON.

[391 J

On the other side It was urged, that the thing here sued*
for, was matter of curiosity and antiquity ; and though at
law only the intrinsic value is to be recovered, yet it would
be very hard that one who comes by such a piece of anti-
quity by wrong, or it may be as a trespasser, should have it
in his power to keep the thing, paying only the intrinsic
value of it : which is like a trespasser's forcing the right
owner to part with a curiosity, or matter of antiquity, or
ornament, nolens volens. Besides, the bill is to prevent the
defendant from defacing the altar-piece, which is one way of
depreciating it ; and the defacing may be with an intention
that it may not be known, by taking out, or erasing some of
the marks and figures of it ; and though the answer had de-
nied the defacing of the altar-piece, yet such answer could
not help the demurrer ; that in itself nothing can be more
reasonable than thaC the man who by wrong detains my pro-
perty, should be compelled to restore it to me again in
specie ; and the law being defective in this particular, such
defect is properly supplied in equity.

Wherefore it was prayed that the demurrer might be over-
ruled, and it was over ruled accordingly.

Case 109.

>V^'

LAW V. LAW.

Lord A.y by the interest which he had with the commissioners of
Chancellor excise, procured for his brother B. a supervisor's place in
^*^'ih ^^^ office J and in consideration thereof, -B. gave a bond for
140. ^^ the payment of 10/. per annum to A. by half-yearly pay-
is?*^ MO^^* ments, as long as B. should continue in the office. B. died,
A. by hU in- having foT some years omitted the payment of this annual
wMuionera ^"™ ^^ ^^''^ whereupon A. sued the bond agauist the widow
of excise geu and executrix of B, who at law pleaded a sham plea of pay-
that branch of Dient, and now brought this bill to be relieved against the

the ifeyenuc bond

forB., who in °^°°*

consideration thereof (pves a bond to A. to pay him 10/. per annam as long as B. eajoya the

place ; equity wiU reliere against the bond.

[ 392 ] For the defendant it was objected, that the bond was ad-
mitted to be good at law by the plaintiff's not being advised
to plead the statute of 5 & 6 £dw. 6. against the sale of.
offices ; neither truly in this case could the act be pleaded,.

tie Term. & Jffkkatlis, llSH. 302

Ming mad6 Ibhg before the excise becfttdi^ a brancli of the I'Air
fev^tme ; that the laW being with the defendant, it would be jj\
fmi tb talke the benefit tb^cfof from hitti, especially when
hewttirhbt pla!fitffrin equity, {Aayed no M of this court,
HM had beeti giSttif of no fraud ; that though the bond in
ddeMion had on a (a) form^ oiccaBioti beta called a place- W Op • m?-

•Li''«.« . « ... .-t» *■, **on for an in-

umUge hatiai and represenfted as equally mischievotis with a junctioo which

riftrft^-btbcage bond, yet it could with no teasop or justice ^^^^

Itet^sMtbled to a uiarriA^e-brocage bdntf, ^hich had indeed J^. 1733.

1A l^i^, in the caste of PMer v. Aa//, [B] (though aftto

^f«tt lifi^io^ and difference id opihiofi) been condemned

in equity, with a riew to obviate a growing mischief, occa-

fUbMt by serVaiits an4 dther mean p^tsdnir talking these

htmtti tot j»rc«urh)f^ marria^s info great families, which

iMdut!^ very uneqtial matched, to the unspeakable un^asi^

li^fMs ixM dfiict^fttfoft dt friend^ oft account of such alliances :

itheMMl th(i pi^ent case could be attended with no such in-

tfibt^irtencies ; ft^ if the otf 6er who gare the bond should

be thek^&by induced t6 act corruptly, ot be guflty of extoif-

tt6W, he wo^ld be ptoiishabk in another man'net, by indict-

ttteilt f6t such corruption or extortion, and if found guilty, [ 3QS ]

WDuM forfeit ids place : that it could be n6 objection that

the Wh6l6 fifalary or profits belonging io an office ought to be

Itcerreii by him that executed it, for this was frequently

otherwise, and yet tolerated both in law and equity. Nay^

in some of the greatest offices of the courts in JF^tminster-

hali^ the deputy who executed the office had commoaly but

a' scanty allowance, the greatest part of the profits going to

the prrAcipal, who underweiU none of the trouble.

But by the Lord Chancellor. Bonds and engagemients of
thi« nature are highly to be discouraged. Merit, induistry,
ah* fidelity, ought to recdhimend persons to th6se places,
and not interest with the commissioners, who, it is to be
presumed, had they known from what motive the plaintiff at
Uw ap^ied to them on behalf of hiii brother. Would hiave re-
jicted him. The offlctr's givihg' money to a friend of the
com'xnissiontos for his interest is altogether as bad as giving
momy, or a bond for money, to the coVtimifisiimerB them-
tdvev, whibh wn*)iri*tftdly would hate been relf^hfed against.

t^J This Was a bond tor assisting in proftioting a marriage, which after^ardl
took effect. The cause was heard first before Sir John Tretor^ Master of the
Rolls, who relieved against the bond ; afterwards the Lord Sommert reversed
the decree at the Rolls, but the Lor^s reversed the decree of reversal. Casei
inT^i.76. SWafeoth« cJse 6f Roberts v. Roberts^ mip, 76.

vol.. iiz» Y

393 De Term. S. MichaeHs, 1735.

liAw It is a fraud on the public, and would open a door for the
J ^* sale of offices relating to the revenue. The takmg away

from the officer what the commissioners and the trearory
think to be but a reasonable reward for his care and trouUe,
and an encouragement to his fideK^^ must needs be of the
most pernicious consequence, and induce him to make it up
by some unlawful means, such as corruption and extortion.
And though the excise was no part of the revenue at the
time of making the statute of 5 and 6 Edw. 6., yet there
may be good ground to construe it within the [C] reason and
£ 394 ] mischief of that kw, which is rather a remedial than a penal
one.

But supposing it to be a good bond at law, so are all
marriage-brocage bonds ; which yet are jusUy condeamed
in equity, as. introductive of infinite nuschief ; and thdr
iiaving been much litigated and contested fortifies the opi-
nion that prevailed at last ; for it shews what was the sense
of the supreme court of judicature, after the inconveniencies
of such bonds had been fiiUy weighed and experienced.
. Wherefore since engagements of this kind are like to oc-
casion corruption and extortion in offices, by having the
profits of places separated from the places themselves, let
the bond be delivered up, and a perpetual injunction awarded
thereon ; and though this be a new ease Let <the defendant
pay costs. (1)

£C] It is no new thing, but usaal, that an interest raised by a sal)seqaent sta-
tute should be under thesame remedy and advantage as an interest existing before.
Thus, at common law, no acceptance of a collateral reeompence could bar a wife
of her dower. But the statute of 27 //. 8. made a jointure to be a bar, which at
that time extended only to a jointure made bj act executed in the husband^s
life-time. Afterwards the 32 //.*S. enabling a man to devise his lands, it was
held, that if a roan were to de? ise lands to his wife in satisfiiction of her dower,
and she should accept them, this would be a bar within 27 H. 8., 4 Co. 4. a. b,
because it is within the same equity and reason ; and the diversity is in the
manner only, not in the thing. So Exchequer Bills, though created and nide
valuable by a statute subsequent to that of 12 Car. 2. cap. 35, for erecting the
post-office, yet are portable within the intent of the said act of 12 Car. 2. ; tod,
on a letter in which such bills were inclosed being lost out of the office, the Post-
masters were held chargeable. From the Lord Ch. Just. HoU^s argument in the
case of Lane v. Cotton and Franklandj in the Reporter's manuscript. See also
Suik. 17. And it is observable, that though the other three Judges of B. R*
differing in opinion with the Chief Justice, judgment was given in that case for
the defendants, yet on a writ of error being brought in the Exchequer-chamber,
the defendants are said to have made satisfaction to the plaintiff, which put an
end to all further proceedings.

' ' ... — . - - ■_^^— ^^— ^"^

(I) Rpg. I^ib. B. 1735. fol. 8(5. Et vide BeUamy v. Burrowy Ca, temp.

De Term. 8. MichaeUs, 1735. 394

Tftl. 07. Purdy ▼. Siacify 5 Bum Amb. 439. (^) Garforih ▼• Fear4m,

2698. Harrington v. Du Chatel^ 1 1 H. Bl. 327. Portoii v. Thompson^ 1

Bro. C. C. 134. (z) Debenham r. Oxy H. Bl. 322. («)
1 Vex. 276. Mmrie v. jtf< CuUocky

(<) S. C. 2 Dick. 581. 89. Thomson ▼. Thomson, 7 Yes. 470.

(^) S. C. 2 Eden, 190. Osborne ▼. WUliams, 18 Ves. 379.;

(x) Hartwell v. Hartweli, 4 Yes. and see Richardson v. MelUshy 2 Bing.

811. Blaelford ▼. Preston^ 8 T. R. 229.

[ 396 ]

SIR WILLIAM HUMPHREYS V. his Son ORLANDO Case 110.

HUMPHREYS. Lord

Chancellor

Me. Humphreys had brought a bill against his father Sir albot.
William Humphreys to recover divers sums of money from ai^iniu^rto
the father, and ianttr aV a bond of 20,000/. entered into in 'ccoTcr diT^ers
1704, for the payment of 10,000/. and interest at the end of count, and aUo

k\>^ VMM* 10,0001. on a

*^ y^^- sUle bond of

above tweDty jean standing. The defendant demnn at to what related to tlie bond, for that
the plaintiff might sue at law. The demurrer being allowed, the obligee in the bond sues the
bond at law and gets a verdict, after which the defendant brings his bill to be reliered against
the bond, as haHng been satisfied ; the court ordered an injunction, for that there was reason
to grant relief in equity, though the defendant had demurred to the bill brought on the bond.

The defendant demurred as to that part of the bill that
prayed relief on the bond, or to recover the money due
thereon ; for that the plaintiff had a rem^y for the same at
law ; the bond appearing to be in his custody, and taken in
his own name. This demurrer was argued and allowed.
Afterwards the son, Mr. Humphreys^ brought an action at
law on this bond ; and on svhnt ad diem pleaded, obtained a
verdict, {viz.) that the money secured by the bond was not
paid.

Upon this Sir William brought his bill, setting forth, that
this bond for iO,O0O/. was entered into without any consi-
deration, and intended only to be in force until some settle-
ment should be made on Mr. Humphreys by his father, who,
upon his son's marriage in VJdfJj had given him 10,000/.,
and' covenanted to give him 10,000/. more ; and that a pur-
chase in Essex of 1000/. per annum had been settled on the

3^ De Term. S. MiekaeKs, 1735.

RtmrttREYs son in posseBsion ; also that the bond was afterwilnls tiirown

^^ aside amongst useless and neglected papers as a thing of no

PHRBTs. ^ue, <^d had been satisfied by stocks of the father that had

[ 396 ] been transferred to the son^ or to his order^ specifying the

particulars*

Mr. Hun^hfejf^, to such part of the biU as prayed relief
agdnst the bond^ pleaded the verdict and the former de-
murrer put in by Sir William and allowed. And it was
argued^ that this was properly triable at law ; and after that
the court, and even Sir William^ had declared themselves of
that opinion : and the defendant having accordingly been at
law and recovered there, the father. Sir William^ must not
now be admitted to say it is proper in equity, and not at
law ; for that would be going backward and forward, and
dealing ill with the court ; and was (as Mr. Strange ob-
served) a departure, which is no more to be etidarect • in
equity, than it is at law.
AlteratleA Upon a motion for an injunction to stay proceedings on
m be no mo- the bottd, the court said, tiiat $Act a ^lea put in, there can be
jMction^tiu*' ^ n^<>^n for aa injunction, (t) But at the instanoe of tfcfc
the ple*'is ar- plaiutifiF, it W8B ordered thAt the plea should come ofA th«
^^^ nestt day to be atgued Among, the e:fcce|iCio99| with I^iev^

that if the plea should be over-ruled, then the plaintiff Sb
PFUliofn Humphrey f might move at the sium time fbr all
iiqunction.

Accordingly the plea comiilg On to be ftfgued, skftbf' hear-
ing counsel, the Lord Chancellor declared, that this bond
being a stale one, of about thirty years' stahifing, and the
money due thereon not havingf been demand^ for very
many years, and the suit on the bond on the son's pM
being improper in equity. Sir A^lliam H^mphteyi might
reasonably expect primd facie to have met witili succtes at
law, it being a rule, that after twenty years and no interest
paid during that time, a bond sh&ll be presumed to be sat£^
fied (y) imless something app^ans [D] to answer that length of

[D] The prodacing a receipt fok* interest within twenty years, indoned ob a
bond by the obligee, (though the time when such receipt was written and si|;ned
did not appear otherwise than bj the indorsement itself) has been held suflScieDt
to take off the presumption of payment. See the case of The LoHi Batrkit^

(s) Nor after a demurrer filed^ Ctw- Ce»ue9^ 4 Burr. 19M. OsmM «
iini V. SmUh^ 13 Ves. 164. Legh. 1 T. R* ^0.

iy) Jntrn. 6 Mod. ^. Winchebea " '

Be Term. S. Jtfic&ze^^ 173&. m

Ume } 80 that the plaintiff Sir William Humphreys b^ reason HiiwpnMirt

to insist by way of demurrer, that this was proper at law \ where ^*

if it had gone for him, it had cut eyery thing short, and mad^ phbets.

an end of the demand : but though this matter be now found

against the obligor, it is nevertheless hard to say, that he

shall be barred of any equity he may have against the bond.

As suppose the same were really intended only to secure a

provbion for the son, until a settlement should be madci

which settlement has accordingly been made i or suppose the

bond has in fact been satiafi^d by a transfer of the father's

stocks, or «ny other way, surely ^ere oan be no doubt but

that the obligor, under these circumstances, ought to be re-p

lieved$ consequently, it is no bar to say to the father, '' yoa

^' alleged this bond was properly triable at law, which has

'^ been so done, and therefore you can have no relief Ib

^' equity/' Now if this be so, then the answer wh^ch should

support the plea being general, and not answering the par-

ticuii^r charges in the bill, the plea wUl be insufficient, a|i4

must be over-ruled ; and the plaintiff having by the order

liberty to apply for the injunction, it is a motion of course,

and must be granted. But this controversy being between

an aged father and an only son, was, the court said, fit to be

agreed; and thereupon it was recommended to Mr.

Attama/'General on the one side, and Mr. Vemey on the

other, to endeavour to compromise (he difference, and end the

matter amicably.

ir. Searhj in Pariisnient, Ptb. 1730, upon a writ of error from tiie Exchequer
Chamber. 3 Bro. P. C. fSb. («)

M St C« S Sir. 896, 2 Lord Raym. servations in Glynn v. The Bank of
1370. 1 and see l^ri Hardwicke's ob- England^ % Ves. Sen. 43.

[ 398 ]
ROBINSON ET AL' v. TONGE, DUNN, ET AL\ g^ ^ jj.

Upon the Master's spectQl Report, ^-^^^ .

, Chancellor

N Talbot.

A BILL was bronght by the creditors of Tonge against the 2 Eq. G«. Ab«
defendant Ihmn^ who w^ his administrator, and against 454! pi', it^

398

De Term. S: Mkhaelis, \lSb.

Robinson otbers^ for the recovery of debts due to the pbdntiflb
rp J^' on bond from the intestate. And on hearing the cause,

the court made the usual decree fur the defendant to ac-
count, and the Master to be at liberty to state any thing
specially.

The Master stated, that Tonge the intestate died indebted
by some judgments that were recovered against him in his
lifetime ^ and his death happening in the vacation, several
of his creditors, who had warrants of attorney for judgments,
entered their judgments which related to the first day of the
preceding term, and consequently to the intestate's lifetime;
though in fact such judgments were not signed till after the
intestate's death ; and likewise, that the intestate died in-
debted to several by bond ; and that the defendant Dunn
having been bound as surety only for the intestate in some
bonds and judgments, took out administration to him, being
advised, that he might thereby pay o£F those debts for which
he himself was bound, as surety for the intestate: that
Dunn the administrator paid off two judgments entered in
the intestate's lifetime, amounting to 300/., and paid off
some judgments entered in the vacation following after the
intestate's death, but which by relation {ut supra) had a re-
trospect to the first day of the term which was in the intes-
tate's lifetime, though not actually signed till after hiD
death ; and that the said administrator paid some debts by
bond, and disbursed and advanced so much money, as to
have over-paid 100/. beyond what he had received ; and that
there were no more personal assets left, nor any real assets,
but an advowson in fee, which .)iad descended to the heir,
and which on an appeal to the House of Lords, had been ad-
judged to be assets to pay debts, where the heir was bound,
and which advowson had been since by order of the court
sold, and the money paid into the bank.

On this case thus stated the Lord Chancellor gave his
opinion :

I^rsty That as to the judgments recovered against the in-
testate, and entered in his lifetime, they must undoubtedly be
preferred. Also,

Secondly, That with regard to the judgments on warrants

of attorney entered after the intestate's death, as these related

ladnnento ^ *^ ^^^ ^^Y **' *^® term, when the intestate was alive, the

■hul not bind landi, but from tbo ligninp, tbis relates only to pnrcbases, and tberefoie, at |^
twcencrediton, a judgment entered in the vacation relatei to the firit day of the precedii«
term.

[ 399 ]

Wbert by the
statute of
frauds it is
sAid, that
jadnnents

De Term. S MichaeUs, 1735. 399

same were good judgments from that tiine(s) ; for tbe.sta* Robinsoi^
tttte of frauds^ which enacts^ that no judgment shall bind ^*

land^ but from the signing, concerns only purchasers, and
not creditors [E]; so that as to creditors this remains as it
was at common law. But, .

Thirdly, The question was, what remedy the adminis'- [ 400 ]
trator should have, with respect to the money which he bad
paid out of his pocket beyond the personal assets ? And
here it was represented to be very hard, if he should lose
any part of that ; for which reason it was said, that as to the
judgments, and more especially those that had been obtained
in the intestate's lifetime, and which the administrator had
paid, he ought to stand in their place ; and as these judg-
ment creditors might have come on the real assets for their
whole debts, so should the administrator that paid them.

Lwd Chancellor. As to the judgments which the admi- ^yZ^J^^^^
nistrator has paid, both those which were entered in the tes- judgments and
tator*s lifetime, and also those entered in the vacation after diet io^u^ute.'
his death, so far he has duly administered : but when he ?*" *^""'fv^

^ ^ trator pays the

went further, and paid bonds beyond the assets, he must judgments and
stand in the place of those bonds, and there being no per- b^"ds!^and*
Bonal assets, must be content to come in pro rata only with pays more than

•^ ^ the personal

estate comes to; what the administrator paid on the judgments mustl)e allowed him : but as
to what he paid on the bonds, he must come in pro rata with other bond creditors out of tbt
real assets.

[E] The late Earl of JVinchekea died seised of some lands In fee, and consi--
derabi J indebted by judgment and simple contract ; and after die death of the
said Earl, and before the essoin day of the next following term, many of the
judgment creditors delivered Jfert factoids to the sheriff, and took the goods and
famitare in execution ; whereupon the simple contract creditors petitioned, (for
it did not come before the court upon a bill) that the judgment creditors might
be paid out of the land ; or at least, that as to so much as the judgment cre»
ditors had, by taking it from the personal estate, exhausted the same, they (the
simple contract creditors) might stand in their place, and be paid out of the
land.

Sedper cur'. Tkii^ rule of equity is very just, but not applicable ta*the pre-
sent case : here, the judgment creditors having lodged their writs of execution
with the sheriff in the same vacation that the party died, it relates to the teste of
the writ, as to all but purchasers ; and consequently, by relation, the personal estate
of which the simple contract creditors would avail themselves, as being in the
possession of the Earl at his death, was not so, being evicted from htin in his
lifetime by the execution ; and therefore the simple contract creditors' seem to
be without remedy, as to such of the assets as have been seized by these execu*
tions. Finch v. The Earl of WinchelseOy Hil. Vacation^ 1719. by the Lord
Parker. Sed queer e.

it) Hee^y V. P arris ^ 6 T. R. 308. Waghorne Tv Langmead^ 1 B. & P.
Bragner v. Langmeadj 7 T. R. 20. 67U

400 De Tetm. B. AKchadi$, I7d3.

BoBXNsojv the other bond crecBtoKs^ for A satiafaotiw ont of the xnoiUqr
^' arising by sale of the advonraop^ which i^ real Msotv.

[ 401 '] ^^^ ^^^^ ^^ ^^^ objected by the SolidtornGeneid, that
the advowson was not liable to the dem9|id9 on the uite»-
tate*8 estate ; for that at common law no real estate couM
be extended^ and that an advowson is not extendible on an

cfisT^'^'^* efe^^V; that the statute (a) only made tnedieiutan terra
liable to an extent ; also that nothing can If e extended on an

(6) 3 Cro. 359. fltgxtj but what the jury mzs put an estimate on the ilA

by Anderson. , i^i i.i i <■

Ch. J. yearly value thereof; now no yearly value can be put upon

an advowson^ much less upon the moiety of an advowson ;

and if the case in 1 Inst. ^4. h. be law, that an advowson

in fee is assets, yet it may not be extendible on an elegit.

An adFowson JLord Chancellor. It seems hard, to maintain that things

an^rr lineal incorporeal, or lying in grant, are not extendible cm an

"BccmS*^ (_•• elegit. However, the que^tion here i3, not whether an ad-

teodibie on an vowson be extendible, but whether it be assets, which has

^^^' already received a determination in the House (I) of Lords ;

and indeed as it may be sold, and comes to the heir by de*

scent, it is reasonable it should be assets.

Memcarantbim. In this case it was inMsted, that the admi-
nistrator could not pi^ a bond debt alter a bill in equity
brought against him by another bond creditor and notjfis^
the said bill being in nature of an action at law ; in wb|c|)
case such administrator would not be permitted to pay a
bopd creditor without leaving giyen him ju4gxncDt ; whid|
the court seemed without dificulty to allow. [F]

[F] NevertbeleM ihU poiqt ^Qf f not sppewr to lisve l^wn fully settled ^
lately. Id ^he c^se of Oaniqn v. Tke Earl ofOrford^ llif. 17Ql,(^) vher»4?
and fi* were both creditor! bj $pepiaUj of j. $. ifrho died, f^nc^ le^ ap e^^Qiitori
agaifiat whom ji, broaght a bill ip equity for a discoT^ ry ot t^&^^py apd tp be paia
his debt, aqd peading such suit, the executor vojuntartij, and if itbottt si^it, p|ti4
B.'s debt : upon an account decreed on ^.'s bill against the executor, the la/Utflt
craved i|n allowance of this payro^pt ; an^ ft ^a? decmfi by the Lprd l^e^per
(Pri'ir^') that thQ executpr ^h^uld not have ao allowance tl)tM:eof^ ^^'ng| U^
beforp paypieat made, a bill in equity ivas brought by -4^ of whic)^ the exex^^f^
had notify ; and a bill in eqnilj jp equivaleot to au i^ctiop at law, pending which
action an executor cannot n)ake ^ voluntary pfijment qf any d^bt. Fpam thi^
decree an appeal was afterwards brought iq the House of Lords, iifhere tbe d<?r
oree was reversed ; aud the rctasou on which th^ jLords prinpipally gronoded,

(1) 8Bit>. P. G. 55«.

■i>*p»

(^) Brec. in Ch. 188. and see and tVaring v. Dauversy fmi€) 1 Tol.
MaUb^ V. RusMcUj 2 S. & S. 337. 3SS.

Be Term. 8, Miehadk, 1735.

401

Iheir decree of reTereal was, for that as the debts were of equal degree, and
since a decree of the court of Chancery cannot be pleaded at law to an action
brought against an executor upon another debt of equal nature ; therefore, such
executor might justify the payment of another debt of equal nature ; even pend-
ing a bill in equity, ^ro^i a note comnuuiicated to the reporter by ^r» Dodfij
(afterwards Lord Chief Baron of the Exchequer) who was of counsel on the ap»
peal. It is however now become the established doctrine, that a decree qf the
court of Chancery is equal to a judgment in a court of law(j7); and where an
«iecutrix of ji, who was greajtly indebted to diTers persons in debts of dlf-
f^t^nt naliiie;, being aued'jn Chancery by some of tb#n|} uppeared and answered
immediately, admitting their demands, (some pf the plaiiitiflb being her own
daughters) and other of the creditors sued the executrix at law, where the decreo
not being pleadable, they obtained judgments ; yet the decree of the court of
Cbanosry, being for a jnat debt, and having a real priority in point of tin^e, q<^
by fiction and relation to the first day of term, was preferred in th^ order of pftj^
ment to the j^ttdgments, and th« executrix protected and indepinified in paying ^
due obedience to such decree, and all proceedings against her at law stayed bj
injunction. Morncey. The Bank of England,(vD) Decreed first at the (lolfit
by Sir Jo^tph Jekyll^ in Augusij 1736, which was affinned by the Lonl 7\i/^
in Naoembery 1736, and his Lordship's deciee a£Glrppied \fx Parliament In itfsif*
1737.(1) ^ ■ ^f

i nim nii»|H

(1) Ca. temp. Talb. 217. and 4 Bro. P. C. ?87.

(x) Se^ BUgh Y. The Earl of
JDamiey, ante, z vol. 691.

{») In thi^ caae a bill for an iiyuQCp
tjoii WB$ filed by th^ execolrix aga^ist
the creditor suing at laWj and so in
Martin Y. Martin^ 1 Vez. Sen. til.
DougUu y. Cia^y 1 Dick. 303. Ken-
jroo «. WorthingtQny 9 Dick. 668^
Brooke V- ReffnokUy 1 Bro. C. Q,
18?. Gpaie v. Fr^er^ 9 Bro. C. C.

33. and 12 Cox, 201.': but an injunction
to restrain a creditor suing at taw can
npw b« obtained on fofiUm u» ithe si^it
wh^r/?JQ the decree t^ ftqoopnt has
been made; Paxton v. Douglas^ 8
Vcs. 6TO. Perrv v. Pkel^Sy 10 Ves.

34. Jsckion y. Le^y IJ. & W. i23L;
^lipflgh ^h^ <^Tt lyrill squire the ex^f-
c^tor to P99ke a statement on o^th of
the amount of assets in his hands.
Paxtan v. Douglas, ub. sup. €r4^)in
¥. Loify Sfwikamptomy 18 Ves. 449.

And the iojunctioa c^n be obtained bf
either plaintiff or defendant in eqoitf i
Dyer Y. Kearsiey, % M^. 483. n. apa
see Cfarke v. TV Mf^l of Ormon^i^
Ja£ob, 19^.; and if, after notioe of ilm
decree, a creditor proceeds at law, he
will not be allowed his costs at law
subsequent to Boiio^, nor the cof ts q{
pppUci^tioii for ipjunctiQU. Curre y«
Bovmyery 3 Mad, 456. But a court of
equity will not enjoin a creditor from
proceeding at law, where the executor
h^ pi«»d^ 9xmh a pW M may entitle
the creditor tp a judgment de bonis
propriis. Terrewesi v. Feaiherbyj
« Mer. 480. Ciarke v. The Earl of
Qrmondey ub. sop.; and see as to such
p)eas, Fiehfen v. FieMffty 1 S. & S.
%55. Lord V. Wormleighlony Jacob,
148. and note to Hancocke v. Proady
I Saund. 336.

40i De Term. S. Michaelis, 1735.

Case 112. CEAVERING v. WESTLEY ET AL'.

Sir Joseph Thb plaintiff seised in fee of a coal-mine^ made a lease

Jekyll, thereof for twenty-one years (reserving a rent) to A, who

th**^lk ^^clared a trust of this lease^ (viz.) that he was a trustee,

2 Eq Ca. Ab ^ ^ ^^ ^^^ mine^ for five several persons^ to each of them

224. pK 9.. one fifth. .

minTto A.^ *The five partners entered upon, worked the mine, and took

reseniog a the benefit of it : but some time after, the lessee becoming

leMM,declarct insolvent, and the mine unprofitable, it was flung up and

tee'foi^fiJl"** abandoned by the several partners ; upon which the lessor

persons, to brought his bill against the lessee and the several partners in

^ five part- Order to compel them to pay the rent in arrear, and also the

DCTs enter accruing rent ; insisting, that though the lease was made to

and take the a trustee, yet it being declared by him to be in trust for these

mUe^i^iclT *®^^"J persons, as tenants in common, it was the same thing

afterwards as if it had been made to them originaUy, or as if the lessee

profiubk, and ^^ assigned it to them ; in either of which cases the cestwf

wlrlnt^th"" ^^ ^!^t«/* would have been liable for the rent, and to the

cestny que Covenants in the lease, until such lime as they shoidd have

uSie, bn\ for '"'"g'^e^ i* ^ver. Besides, as these cestuy que trusts^ while

the time dor- it continued a beneficial lease, were to have the profits, so on

tMk the pro-^ ^^ Other hand it was reasonable they should abide by the

^p'^ _ 1 ^^^ ^^ ^^' ^^*' *^^^^^ commodum, sentire debet et anus.

^ -* But by the Master of the Rolls. The action at law lies

against tiie lessee only, by the landlord, who giving credit

entirely to such lessee, is debarred of his remedy against any

other. And there seems to be still less reason to charge the

cestuy que trusts for the future accruing rents, since, as these

are no otherwise chargeable than as assignees, they are at

liberty, by assigning over their lease, to get rid of it, and

thereby to determine that privity of estate, in respect of

which only (1) it can be pretended that they are liable.

Wherefore, seeing in the principal case the lessor has no

remedy at law against any but his lessee, upon the credit of

whom, and of whose covenants, he has let the mine ; and

(1) Chancellor v. Poole^ Doug. 765.(2)

aaBsssssBsssBassoBsmessmt
(«) Buckland v. Hallj 8 Ves. 95. Staines v. Morris j 1 V. & & H-

De Term. 8. Michaelis, 1735. 403

since he has made choice of him as the person liable for his Clatekino
rent^ I think^ as against the cestuy que trusts, the bill ought „ ^*
to be (1) dismissed. Sed [G] qutei^; for it seems, that r 4Q4 -1*
whilst the cestuy que trusts received the profits, they should
be liable to the rent, though not afterwards.

[G] In the Trinity Term following this cause came by appeal before the Lord
Talbot^ who decreed one Reedj the lessee (who made default) to pay to the
plaintiff the contribution monies he had received from each of the cestuy que trusts
towards working and carrying on the coal mine; and if that should prove not
sufficient, the cestuy que trusts that were living, and the representatives of such
as were dead, and who were all before the court, to contribute each one fifth
towards satisfying the plaintiff the arrears of rent that had incurred during the
time they had concerned themselves in taking the profits. The plaintiff to have
back the lOL depo8it.(t)

(1) Reg. Lib. A. 1735. fol. 136. << plaintiff; and in case the defendant

(2) The decree on the appeal was, ^^ Reed had not sufficient for that pur-
^^ that it should be referred to the Mas- ^^ pose, the said defendants respec«
^' ter to take an account of what was ^' tively (the representatives out of as-
'^ due to the plaintiff for rent and other- ^^ sets only) were to pay to the plaintiff
^' wise on the foot of the lease and the ^^ one fifth part of what shall be so found
'^ corenants therein contained, and the '^ due, or so much thereof as, together
^^same was to be paid to him by the "with their respective shares of the"
" defendant Reed (the lessee) : but in ^^ money in the hands of Reedj would
'^ case the defendant Reed should not '^ make up such fifth, and what should
'^ pay the same at such time and place ^^ thereafter become due from the de*
" as the Master should appoint, it was ^^ fendant Reed to the plaintiff, upon
" ordered and decreed, that the Master '^ the said lease and covenant was to be
^ should take an account between the " paid to the plaintiff by the defendant
^ several defendants on the foot of the " Reed; or in default thereof the said
^^ articles (by which Reed declared the ^' defendants respectively were to pay
'^ trust for the five partners) to the end " one fifth part thereof or so much
^^ it might appear whether the defendant "thereof as together with their shares
" Reed had sufficient of the money of <*of the money in the hands of the de-^
^< the said defendants, and the deceased ^^ fendant Reed would make up such
«^ partners respectively, remaiqing in " fifth." Reg. Lib. A. 1735. foL 596.
<^ his hands to answer their shares of by the name of Clavering v. Reed.
"what should be found due to the

40&

^'^rz. ^^^ ^^

TERM. S. HILARII, 1735,

Cfse ua. EX PARTE ROWLANPSON.

'Lord Thb case was, John Crosfield and Jamet Bwket^ trere part'
^ixto'*"^ Ben m tmde, aod bound jointly and severally in their joint and
2 Eq. Ca. Ab. sevend bond to the petitioner Mowlantbon. S!7th of October,
u A 'ai^'B ^73^ & joint commission was awarded against Crosfield and
v»b««a4iii Sirket, who were found bankrupts, and their estate and
ai^Mvmdiy^ effects made over to assignees, in trust for their oreditors.
t* J. fl., he Afterwards a separate commismon was sued out against eacl|
we (ban Joint* of the partners, and each upon tbi^ 4X>ipmi8iiion was alw
&"7^i' found a bankrupt.

them jointly, he eannot «ue Ihem Bererelly, for the pendency of one toH may be pleaded is
»h»^m»nt of Ihe othtr : by thn atme renaon, if A. md B., joint ttaden* bocQnefaniiknipt,^d
th«re are joint ajid separate commlasiooa taken out againat them, and A* and B. before tba
bai^unptcy, become jointly and aererally bound to J. S., J. S. may choose nndcr wliich cQmr
miaaioft he will come^ trat shall not come under both.

Hie petitiwer proysd his debt under all tlivee commitsknui

and Tcoeived a dividend under the joint oommifigion of

shillingB in the pound ; and having also applied to the com-
l^ 406 ] midsioners under each of the separate conunissiona, to be let
into his dividend under such separate commission, and heaig
liy them refused^ in regard of his having received the same
wider the joint commission^ he no^ applied to the Lord
Chancellor to be admitted to receive his dividend under the
separate^ as well as under the joint commissions.

The Lord Chancellor at first inclined to think^ that the
petitioner being a joint and a separate creditor^ ought to be
at liberty to come m under each of the commissions^ provided
he received but a single satis&ction ; but the next day his
Lordship held^ that as at law, [A] when A. and JB. are'bound
jointly and severally to J. S. if J". S. sues ji. and jB. severally^
he cannot sue them jointly, and on the contrary, if he sues

[A3 If three are bound jointly and severally, the obligee cannot sue two of
them jointly, for this is suing them neither jointly nor severaiiy. RolL Aln"* 14^

De Term. $. Hit. llSh. 405

them jointly^ be cannot wltt them severdly^ bttt th« Me attioil Ex ptitte
tnay be pleaded in abatement of the other : so, by the tttuMfe B^^w^awi*.
reason^ the petitionef in the present ease ought tb be piit Ul
Ms election^ mider which of the tw6 commifiiions he would
come ; and that he should not be permitted to come mid^l^
both; for th^n he would have received more than hSis tthlkre ;
but bis Lor&hip said he would hear counsel^ if they HAd aa^
Mhg to object agaiiiM this order.

WhereupiMi it was now ofil^red^ that it W»3 tnike, if alt W
two men are bound johitly and s^V^rtflly in a bond to «/. it^
the obli|^ee may either sue the bond jointly against bdtl^ ot
severally against each^ at his dectibn ; but on his sUing tfifem
Jobttly and severally at the sftme tinted the p^nd^nty Of diM
Mdt may be pI6ad^ bi abatement to the 6tihef ; but the
Mi66n of thfd is^ Ibr th^t if the obliged nueft the obl^on
Jdihfly, BXti recovehi judgment, the plahitlff in iiu'ch 6aM« M I 4fft 1
M liberty tOr tdte as well the joint aa the sfepar^t^ effiiictt ^
eikdi of Vkt obBg^ri in execution. NoW^ iii siicli de^y YiA
etttt have M more than alf the eflKects of each j condequently^
dtifitig Mch joiut suit it wotild be fruitless^ and ittdt^d vMa^
tious, to bHtig a separate aetioil against each' of the obli^m ;
but th&t notihfng could be ihfhred from hehee ^iMt a \tM
61ffei^tor*s iJsMn^ imder each of these commissions the titfnoirt
Vantage siHowed Kiih by IftW ; and that the bankhrptby of
flus debtor -oiight not to hmder him of duoh ad^^aiVtagi;, d6r afl
he did nbt recei^ a double satis&ctloir.

For which purpose t^ case was cited, as det^rridned by-ffiti
Lord ISng^ Sept. 6; 1732, Where a joint cbmmifeiWii' issuferf
V. Sidiner, JoHes^ and Prestlarid, Who wert partners' Sntf
joint- traders ; and one Hke Fdnghan proved a AiVk of 39$lfc
under the commission^ and received a dividend bf 4dr. iii thii
pound.

Afterwards Mee P^HUghitn, having Mewise ^ separate! bbiktf
from Si&iner, for the same debt, sued oUt a teptitviii tbih-'
mission f6r it agaJiist Stainety and petitioned that the Com-'
missfoners ahd assignees under the joint commission miight
deliver up the separate effects of Stainery in order that the
petitioner might receive a further satis&ctidn towtoNls hlff
debt out of Statner'i separate e^tt. Oh &e dther hand
the joint creditors* petitioned, that the separate commhisibtt
might be stlperseded, forasmuch as Jtufe PUughM on whose
petition the sepatute cotmnission had issued^ had b^en al-

407 Be Term. S. HU. 1735.

Ex parte lowed for the same debt under the joint commisaiony ftns.)
AowiiAKD- 4^^ Ijj ^g pound. But it was ordered^ that the assignees
under the joint commission should deliver up the separate
efFects of Stamer^ to the end they might be applied to pay
the separate bond.
[ 406 ] . And it was insisted, that this was a case in point; for
here Rice Vaughan was a joint creditor of all the partners,
and also a separate creditor of one, and had proved his debt,
and taken his dividend imder the joint commission; not-
>nthstanding which he was allowed relief as a separate cre-
ditor for the same debt.
If two Joint- But the Lord Chancellor observed this difference between
partnerahip the cases : in that which had been cited, there was a single
"^ the MTtaen ^^^ giv^n as a collateral security for the same debt, by one
l^Tetabondu of the partners only : but in the principal case, the bond
cmi^^^tiT^ upon which the petitioner would seek relief under the sc-
iB«Btorthi8 parate >conmiis8ion was not only for the same debt, but
loint debt may gi^^n by both the parties ; and the plea in abatement would
A *D»tMr-^^ ^^^ ^^exL proper, had the bond been sued at the same time
ship cr^itor, both as a joint and several bond, which cannot be« where

wb^ sue Ae ^^^ ^® ^^^Y * separate bond. Then takmg this to be the
^D^ p^<n ^7 rule at law, that a joint and several bond cannot be sued at
traders. one and the same time, both jointly and severally, but that

the obligee must make his election ; so it ought to be (he
said) in the principal case. And this would best answer the
general end of the statutes concerning bankrupts, which
provide, that all debts shall be paid equally, as in conscience
they are all equal; that it is upon this foundation, that debts
of a partnership have been ordered to be first pidd out of the
(«) Vide Hor- partnership effects (a), and that afterwards the joint creditors,
tSeST* when the separate creditors are satisfied, may come in upon
the separate effects, but not before ; and so vice versdy the
separate creditors are to come first on the separate effects of
the partners, and if these not sufficient, then on the joint ef-
fects, after the partnership creditors are paid.
[ 409 ] And therefore, that there might be an equality in the prin-
cipal case, his Lordship ordered, that the petitioner should
make his election, whether he would come in for a satis&c-
tion out of the partnership, or the separate effects, but not
out of both at the same time ; however, his having recdved
his dividend out of the joint effects, on the joint comnussion,
whilst this matter was in suspence, was not to bind him ;

De Term. S, Ha. 1735. 409

and provided he brought that back again, he might come in Ex parte
for a satis&ction out of the separate efifecti ; and he to have Ro V"k»-
A month's time to make his election. (1)

(1) Ex parte Bandy 1 Atk. 98. Ex parte B lankenhagen jCaoke^t Bank. Law,
104. («)

(O Ex parte Bentky\ 2 Cox, 218. 10 Ves. 107. Ex parte //ay, 16 Veg.
Ex parte Bevan^ 9 Ves. 323., and 4. Ex parte Liddelf ftKoae^ Si^

HEARD £T UX' v. STAMFORD. Case 114.

Lord
A FBMB sok was indebted to her sister in 50/. by note j she Chancellor
married, and brought a personal estate to the value of 700/. ^^^or.
.to her husband, with whom she lived about a year and a 173. "''^-
quarter, and then died j the creditor by note never recovered 2Eq. Ca^Ab.
judgment against the husband and wife, and the debt, re- a woman in-
nuuned unpaid. The husband, on the wife's death, admi- ^JJ^^lJ^j
nistered to the wife. The sister married, and with her hus- and brings a
band brought a bill against the defendant, and finding that bniband, and'
the chosen en action, of which the wife died possessed, were ^* ^^^
not sufficient to pay the 50/. debt, which the wife owed tbim tbe creditor
sola; it was prayed that the defendant the husband, for so hd^tothe
much as he had received out of the clear personal estate of Taiueof what
the wife upon his marriage, should be made liable to answer with the wife,
the plaintiff's demand.

And it was insisted to be but common reason and justice,
that as the wife was the owner of a visible estate, upon the [ 410 ]
credit of which the plaintiff might have intrusted her ; so he
that had such estate should pay the debt, which he might
well afford to do ; that it would be a case full of hardship, if
a feme sole, who in ready money, goods, jewels, terms for
years, &c. might be worth 10,000/., and might owe 1000/., if
such woman should afterwards marry, and die, that on her
death, her husband should fo away with the 10,000/. and'
not be obliged to pay one farthing of his wife's debt ; this
would prove of the most pernicious consequence to the cre-
ditors ; whereas, on the other hand, the husband could have
no reason to complain of being liable to answer their d^*

4VD m tdm. ». mtim.

S Jm) *** *® «faitH<rr of a book, intituled iTie Office cf Eretutari^
(a book well esteemed) cbap. I7. touching a fetit eomfert's
being execotrlx, takes notice of this case as a very hard one,
and indeed irteomnieildil it ito propief f6r th^' conkidehitidn of
a court of equity ; that accordingly the court has granted re-
lief under such circumstanceift, as appears from the Chancery
SeportSy 29S. FVteintin v. Gaodhafny wher^ a fb&6 dum dda
bought goods, but did not pay for them, and aften^ards
married, and died, having brought a good porUon, which
came to the hands of her husband, who, on the creditors
filing a bill against him, {o be paid for the goods, demurred.
The Lord Chancellor Nottingham over-ruled the demurrer,
saying with some earnestness, that he would alter the law in
that point. So In the cade* of Powell v. Sell, Abridgment
of Cases in Equity , 00. pi. 7. Precedents in Chancery y 256.
it was deerei^d, that the t^ wh6 had conrtracted dbtJrC6 Aah
Sot6f Veitig dead, {he husMitttf should account tar what hh
hdoi received with her, and shouM be s6 ^ liable to lUk
d^bts ; and tUtte Mr. Piemen td said to huve infdrmed iSk
court, that he had often known it so held. It was tdorebver
t 411 } insisted, that otib precedeht relieving a ereditoTj i^as moM
to be rtg^rded ffian three to the cbiatrary.

jLord Chimcillor. U is extremely clear, that by la\^ the
Im^and is liable to the tiife's d^bts only during the cover-
thte, unless the creditor recovers judgment against him iii
the Wife's lifetime ; and 1 do not see how any thing lefes than
ati act of parliament can alter the law. Tlie wife's chos^ eh
attian are assets, and tHII be liable t but these, it seems, ari
not sufficient in the principal case to ansti^ the deamnd«
Ifa the case of Vreeman r. Goodhamy there was i^ome reason
ftft tihe court to be provoked, when the goods ttiemgeWA
ctetitnued, after the death of tfie wif<§, in the hand^ of thii
iAdlband, who notwithstanding refused to p^y for tAeifti. It
ik tkity it appears the then Lord Chancellor over-ruled ^e
dlitnurrer : but vAat was done afterwards, what decree his
Lordship made, whether the caube was ever heard, or wfii-
ther the bill was not dismissed, rfbes [B^ not appear, ifeittfe^

[B] Upon searching th<i Register's bDok it appears, that in the case of Free*
man v. Goodlund et e c&hf (not Goodhant) the defendant had married the tes^
tator's widow, Who hsA bdil|hC goodi of th^ teMiifof s eiecstors ; CHat •flfek'iKS
widow's death) ikte ex^ealora' briflging their biH (Mer' a/*) to be salisfed M
these goods, the defendant demurred, which demurrer was on the ISth oi Decern^
bery 1676, over-ruled by the Lord Chancellor : that afterwards on the hearing

De Term. 8. HU. 1735. 412

in the case of Powell y. Bell, is any notice taken what estate Heard

the wife had in her own rurht, and what as administratrix to ^ ^'
, - i_ i_ J Stamford.

her former husband.

If I relieve against the husband beqause he had sufficient So on the other
with his wife wherewith to satisfy the demand in question ; wominindcbt-
by the same reason, where a feme indebted dum sola after- «d dum sola,
wards marries, bringing no fortune to her husband, and judg- brings no por-
ment is recovered against the husband, after which the wife J^|,i^J'*'
dies, by the same reason (I say) I ought to grant relief to against whom
the husband against such judgment, which yet is not in my i^co^red for
power; consequently, there can be no ground for a court of *?*^'' ^*^'*jj"^
equity to interpose in the present case. If the law as it now dies, equity
stands be thought inconvenient, it will be a good reason for JJ^Je'thVhns-
the Legislature to alter it : but till that is done, what is law band against
at present must take place. * ^" ^^°

The next morning the case of The Earl of Thomond v.
Earl of Suffolk, (a) was cited to have been adjudged by the W Vol. 1.470.
Lord Macclesfield, wherein this was one of the very points
in question ; and the Lord Macclesfield, for much the same
reasons as had been given by the Lord Talbot, denied to re-
lieve a creditor of the wife dum sola, agsdnstthe husband who
survived^ and on the marriage had sufficient personal estate
wherewith to answer her debts. Whereupon the Lord Chan-
cellor took notice, that although the matter now in question
was inconsiderable in value, yet the case itself was of great
consequence ; for which reason, if the coimael for the plaintiff
were dissatisfied, he would, he said, hear them again to it.
But the above mentioned case of the Earl of Thomond being
insisted on as in the very point, the counsel acquiesced, and
did not stir the matter again, (b) 2L?H.lt^

been determined by the Lord King in the case of Jordan v. Foley^.TriA, 11.6. 1.

of the cause the 3d of December, 1678, the defendant insisted that his wife had
a property in these goods at the marriage, which were part of her portion : bat
nevertheless to avoid farther trouble, and in case an assignment of some leoae-
bold estates mentioned in the cause were made to him, (though he was not liable
by law so to do) yet by his counsel he offered to pay for the goods, whereupon
the decretal order runs thus : — ^^ That the defendant Goodkmd do pay to the
^' said executors the sam of 350/. reported due to them on account of the said
" goods, according to hit offer aforesaid:* So that this being a decree in con-
seqaence of the defendant's offer, here appears to be no express determination in
the point ; however, it is very probable that the defendant perceiving which
way. the opinion of the court inclined on arguing the demarrer, was indaced to
make the abo? e mentioned offer.

VOL. HI.

413 De Term. S. Htl. 1735.

Case lis. SMITH w. TURNER.

Lord This cause leas heard ; and there appearing to the couit some

ChaDcellor reason to suspect that the defendant had a deed m his cus-

' tody, it was orderod that he should be examined on interro-

205. pi. 2. ' gatories touching the deed. Accordingly he was examined,

AAe/the de- ^^^ denied his having the deed, and all the circumstaDces

fendant \ua relating thereto.

been examined

on interrogatoriet, and publication paued, the plaintiff ought not to hafia a cammiaiea to
examine witnenca in order to falaify the defendant's examination ; this tending to anltipiy
causes, and make them endless.

The Master certified notwithstanding, that he thought it
reasonable the plaintiff who prayed a conunission to examine
witnesses, in order to falsify the defendant's exanunation,
should have one. And now on motion for such commission,
and after hearing counsel on both sides.

The Lord Chancellor ordered, that the phuntiff should not
have such commission : for at this rate three or four causes
might spring out of one ; and though there could be no
mischief in examining the party himself, yet the exanuning
witnesses after publication passed, especially where it may
relate to the matter in issue, is against the rule of the court,
and may be greatly inconvenient, and make causes endless.

r 414 ] KING V. WITHERS.

CiiBe 116.

/f ^ 0 ^ ^" ^^^ ^^^^ Procenim.]

Lord The bill was brought for the Tecovcry of a legacy of 3,50(V.
?1lbo?' given by the will of Charles Withers, the father, to Hen-
1 tq. Ca. Ab. ^^^^ Maria his daughter. The case was ; Charles ffithers,

his body then living, or which afterwards should be bom, then his daughter to have st htf
age of 21, or marriage, which should first happen, 3,500/. orer and above the sud 2,&0<M.9 ^
ih «ase Hhe contingency of the son's so dyins: shiU not hanpen before the daughter's age of fit

ih «ase Hhe contingency of the son's so dying shiU not happen ^^. „ „ .

or marriage, then «he to receire the said additional sum whenever it shall happen. f^^Y:
which the testator entails his real estate, subject to the above mentioned <fharge, on the o^
of his body, remainder to his brother in fee. The testator dies, the daughter mamei, w*
issoe, and haying attained 21, dies. Her husband administers to her ; afler which the tei»'
tor's son dies without issue male; the 3,500/. shaU not sink, but on the personal esUtepronof
deficient, shall be raised for the benefit of the daughter's administrator.

D€ Term. S. HU. 1735. 414

the bther, had a wife named Daroiky, and one only son Kina
Charles fFiihers, and one only daughter Henrietta Maria, ^'

afterwards married to die phiintiff Dr. King^

Charlte fFithers, the &ther^ was seised of a real estate oif ^

900/. per annumy and possessed of a great personal estate^
and by his will dated 3 June 169/9 ^^7 executed, gave to
hii dat^hter Henrietta Maria, 2,500L at her age of twenty-
one, or marriage, which should first happen, declaring his
btention and meaning to be, Uiat if his son Charles Withers
should die without issue male of his body then living, or
which afterwards should be bom, then his said daughter
should have and receive at her age of twenty-one, or mar-
riage, which should first happen, 3,500/. over and above the
said 2,600/. After which he intailed his real estate on the
heirs of his body, with remainder to his brother Andrew
Withers in fee<; and directed, that in case the said contin-
gency of his sdn's dying without issue male should not hap- [ 415 ]
pen before his daughter's age of twenty-one, or marriage,
then she should receive and be paid the said 3,500/. when-
ever it might after happen, and made his wife Dorothy, his
brother Andrew Withers, and one John White, executors,
dedaring fturther, that his land before mentioned in his will
should be liable and chargeable with the payment of this
3,500/. whenever it might become due and payable.

In August 1697, Charles Withers the testator died.
Charles Withers the son intermarried with Frances Wavell,
by whom he had issue three daughters, the defendants. The
plaintiff Dr. King married Henrietta Maria, the only daugh-
ter of the testator Withers the father, and had issue Charles
Ki$ig, now living. Henrietta Maria, the wife of the plain-
tiff Dr. King^ died, having attained twenty-one. and the
plaintiff Dr. King administered to her. CharUs Withers
the son died, without issue male, leaving his said three
daughters. Dorothy Withers likewise died ; and the personal
estate being deficient, the plaintiff Dr. King brought his bill
to recover this addition^ portion of 3,600/. tod interest.

1 1th of July, 1735, the Lord Chancellor Talbot declared,
that the said 3,500/. was and is a subsisting charge on the
testator's real estate ; and decreed an account of the personal
estate*, and of the rents and profits of the real estate devised
by the testator Charles Withers, for the payment of his
debU and legades ; and that this 3,500/. should carry in-

415 De Term. 8. HU. 1735.

King terest from the death of Charles Wtthen the son, together
,.. ^' with costs of suit.

From this decree the defendants applied to the Lords ; and
insisted, \^r«/^ that the additional portion of 3^500/. was
[ 410 ] given to the testator's daughter Henrietta MariOy upon two
contingencies, {viz*) upon Charles fFithers the son's dying
without issue male living at Jiis death^ and upon her the said
Henrietta Maria's attaining her age of twenty-one, and that
both these contingencies ought to have happened in the life-
time of the said Henrietta Maria^ otherwise the conditbnal
legacy could not vest in her so as to be transmissible to her
.administrator as a charge on the real estate, and to be rused
thereout in prejudice to the appellants, the coheirs at law,
{a) See Paw- but ought to sink in the inheritance, agreeably to those (a)
2 Vent! 366?^* many determinations in the courts of equity, where in the
1 Vera. 204, case of portions given to younger children, payable out of
lands at a future time, before which time such children have
happened to die, it has been held, that the portions did not
vest, nor were ndsable for the benefit of the executors or
administrators of such children, but ought to sink for the
benefit of the heir or remainder-man.

Secondly y It was observed, that this additional portion of
3,500/. was not made payable to the executors or administra-
tors of the said Hetirietta Maria, the late wife of the pbun-
tiff Dr. King ; which shewed, according to them, that it was
the testator's intention, that the said sum should not be paid
to her executors or administrators out of his real estate,
which he had intailed on his fiimUy, i^r go to a stranger
who had before received a portion of 2,500/. with the daugh-
ter, and who had made no additional settlement on her, in
recompenoe for such additional portion : and though it might
be objected, that possibilities or contingent interests go of
course to executors or administ^rators, even though the lega-
tees die befoie the happening of the contingencies ; yet this
[ 417 ] was said to hold only where the contingent interest vase^
out of a personal, not out of a real estate.

On the other side it was answered, that it appeared to
have been the intention of the testator to make a provision
for his only daughter, not barely, by giving her a portico of
2,500/. to be paid at her age of twenty-one, but aLw an ad-
ditional legacy of 3,500/. .payable, on a. contingency of his
only son's dying without issue male then living, which had
happened.

De Term. 8. HU. 17S5. 417

That the testator's daughter Henrietta JMaria^s dying in K4M6
her brother's life- time could not be any objection to her ™ ^'««c
havings the additional legacy of S^SOO/. since it was particu-
larly directed by the will^ that though the contingency should
not happen before her attaining tiie age of twenty-one^ or
marriage^ yet such additional legacy should be paid whenever
the contingency should afterwards happen, without annexing
any restriction thereto or adding the circumstance of the
daughter's being then alive. And in another part of the wiU
the testator expressly declared his intention to be, that the
lands and premises thereby devised to his sou Charles, with
remainder in fee to his brother Andrew^ should be liable to
and chargeable with the payment of the said 3,500/. when-
ever it might happen to become due and payable, which shews
the strongest intention imaginable in the testator, that the
said 3,500/. should be a charge on his real estate, on the
death of his son Charles, without issue male, whenever such
event might happen, whether the testator's daughter Hen-
rietta were at that time living or not ; that these clauses
seemed inserted on that purpose and with a particular view
to prevent the question that had now been started ; for, being
tdcsen together, it was hardly possible for the testator to have
expressed himself in more explicit and decisive terms ; that [ 418 ]
the case of Jackson v. Farrant, Precedents in Chancery,
109, and 2 Fern. 424. was determined agreeably hereto;
lastly, that the principal case differed entirely frolii that of
Poulet v. Poulet, where the daughter dying about the age of
nine years, had consequently no occasion for a portion;
whereas here the daughter lived to be married, and left a
child, and this additional provision might justly be presumed
to have contributed somewhat to the advancement of her in
marriage.

For which reasons it was prayed that the decree might be
affirmed, and it was affirmed accordingly with costs, 16
March, 1735.(1)

(1) Vide Duke ofChandos v. Talbot, ante, 2 vol. 612.

419 De Term. S. MchaeUs, 1717.

TERM. S. MICHAELIS^ 1717.

DOMINUS REX v. JOHANN' BIGG.

Arguments before all the Judges at Serjeants' Inn^ tn Fleet

Street.

1 stn. 18. This was a special verdict found at the Old BoUej/^ where
mon j^ice*" ^® prisoner, John Biggy was indicted for rasing out an in*
ukeBootare- dorsement of 90/. made on a bank bill for 100/. whidi is
on thr?iiside ™<^6 felony without clergy, by a late act of the 8th and 9th

ofabanknote, of fF. 3. chap. 19. PoT. 36.

out called an '^

indorsement ; this held to be rasing an indonement within 8th and Stb of W. 3. cap. lS.nct.
36.) and to be felony withont cleigy.

The indictment set fortb> that on the 19th day of Febnh
aryy 1714, and long before, one Joehua Adams was es*
trusted and employed by the goremor and company of the
bank of England^ to sign bank notes for the said compsBjy
[ 420 ] for the payment of money by them payable : that afterwards
the same day and year, the said Joshua Adama^ being so en-
trusted and empowered by the said company, did makes
certain bank note under his own hand, and signed by him-
self on behalf of the company, dated the 19th of Februarpf
1714, by which note the said Joshua Adams, on behalf of
the said company of the bank of England, did promise to
pay to Mr. James White, or bearer, one hundred pounds on
demand : that afterwards on the 22d of February, 1714, on
behalf of the said company of the bank of England, the sum
of ninety pounds, part of the said sum of one hundred pounds
in the said note mentioned, was paid to the bearer of the

De Term. & Michaelis, 1717. 4flO

said note ; and that thereupon^ on behalf of the said coin-> Rkx
pany^ guoddam scripium Anglice an indorsement on the said ^ ^'
note was duly made and written, specifying, that 90/. was paid
the same 22d of February y 1714 : that the prisoner, John
^^gi endeavotmng 'to make an unlawful gain to hinuelfy
and to defraud the company of the bank of England, ofgreai
sums cf money; after the payment of the sdd 90/., and after
the said indorsement made upon the said note, (viz.) on the
iirst of March in the same year, feloniously erasit that in-
dorbement upon the said note, contra pacem dommi regisy ei
cmUraformam statui in hoc casu nuper edit* etprovis\

Upon JBigg the prisoner's pleading not guilty to this in-
ActmeBt, the jury found a special verdict, {viz.)

They founds that the said Joshua j^datns, on the said 19th
of Februavy, 1714, was entrusted and employed by the
governor and company of the bank of England, but not
under their common seal, to sign for the company bank
notes toe the payment of money payable by the company :
that the said Joshua Adams, being so entrusted and em-
pkyed aa aforesaid, on the 19th of February, 1714> did
make the note in writing mentioned in the indictment, [ 491 }
signed under the said Joshua Adams* own hand on behalf
of the said company; by which note the said Joshua
Adams, on behalf oi the said company,, promised to pay to
Mr. James White, or bearer, on demand^ the sun^ of one
hundred pounds; that oa the said 22d day of February,
1714, on behalf of the said, company, the said 90/., parcel of
the said sunt of one hundred pounds in the said note con-
tained^ was paid to the bearer of the said note ; and that on
the said payment, an and across the tvriting of the said note,^
the words and figures following, (viz.) 22d of February,
1714, pmd ninety pounds, were in due manner, on behalf of
the said company, written with red ink, upim the face and
inside of the said note ; that the said John Bigg, on the first
of March, in the said year, after the payment of the said
90/, and the inscription thereof on the said note^ by a certain
liquor to tb^ jury unknown put by the said John £igg, upon
the W0rd# and figures so written upon the said note, with
^ mk as aforesaid, the same words and figures totatiier ex-^
punxit et delevit.

Also the jury found, that at the time of making the act of
parUameot, intituled) an act for making good the deficiency
of several funds therein, mentioned, and for enlarging the

481 De Term. S. Michadis, 1717.

Rex capital stock of the bank of Englaifid, and always afterwards,
„^' to the 28th of November^ 1096, the way only used for in-

dorsuig of bank notes was, by writing on the backside of the
said notes with black ink ; but that afterwards on the 28th
of Nov. 1096, and firom thenceforth to this time, the way
that was only used was, to write all the payments of any
part of the money pud on these notes, upon and across the
writing of the said notes, ivith red ink, in manner and form
as is above mentioned to be written on the said note ; and
that such inscriptions, from the said 28th of November,
[ 4^2 ] 1606, hitherto have been, and are commonly called indorse-
ments ; and if upon this whole matter the court shall be of
opinion, that the prisoner is guilty of the felony chaiged
upon him in the indictment, then they find him guilty; if
the court shall be of the contrary opinion, then not guilty.

My Lords,

I am of counsel with the prisoner, who, 1 must admit, has
been guilty of a very great misdemeanor or offence : but the
question now before your Lordships is, whether the fact, as
found by this special verdict, be felony ?

I shall beg leave to speak to tiie case upon these several
points ;

First, Whether this Joshua Adams appears to have been
well empowered on behalf of the company of the bank of
England to sign notes for the payment of money by the
bank ? And I humbly take it^ that on this special verdict,
but more particularly the negative words of it, I mean as it
is found, that there was no authority under the common
seal; it appears Adams was not well empowered to sign
this note on behalf of the company ; and therefore, that in
strictness it is not, as to this purpose, a bank note, and con-
sequently that it is no felony to rase it, or to rase an in-
dorsement made upon it.

Secondly, Whether this receipt of the 90/., part of the
100/. mentioned in the note, (the receipt being written on
the inside and face of the note) can be said to be an uicforse-
ment within the act ? And I humbly hold it cannot be said
to be an indorsement ; and, consequently, that the prisoner
cannot be guilty of rasing an indorsement on a bank note.
[ 423 ] TInrdly, Whether the prisoner's taking out this receipt

by applying to it a liquor unknown to the jury, can be
called a rasing of this indorsement? And I must b^

De Term. S. MtchaeUt, 1717. 423

leave to hold, that it cannot be called ^a lasing of this in- Rex
dorsemoBt; ®'

Fourthly. Whether the indictment be good, it being for * '

rasing the inscription, AngKce^ the indorsement, on the
back of the bill ? Andthis I take not to be good.

Fifthly y Whether the rerdict, as found, be sufficient, it
not being found, that the prisoner rased out this indorsement
for the sake of lucre, or with an intent to defraud or cheat
the company of the bank of England ? And I take it that
the verdict, as found, is not sufficient, as to that matter.

As to the first question, whether Joshua Adams was well \
empowered by the Bank to sign this note, the Company of
the Bank of Mngland are a corporation aggr^;ate, a body
politic, subsisting only by fiction and supposition of law,
which is invisible, and can act or speak only by its common
seal ; so that the common seal is the hand and mouth of
such a corporation.

Formerly it was held, that a corporation aggregate could
not dotBKy thing without deed, 13 H. 8. 12. Afterwards, it
is true, for conveniency's sake, it was allowed to act in ordi- *
nary matters without deed, as to retain a servant, cook, or
butler. Plow. 91. b. 2 Sound. 305. ; or to appoint a bdliff to A corporation
take a distress, 3 Lev. 107* But in case of any thing of con- Southing of
sequence, or the employing any one to act on their behalf in ^^"^^"^"^i
a matter which is not an ordinary service, a corporation *ag- an ordinal^
gregate cannot do that without deed. This is the very dis-. ouTdSar*^"
tinotion taken in Horn and Ivy*s case, reported in 1 Fent. [ *424 ]
47* 1 Mod. 18. 2 Keb. &67. where, in trespass for taking:
away a ship and suls, the defendant justified under the
Canary patent, whereby the King granted to the company
the sole trade to the Ckmary Islands ; and further granted,
that if any should without their licence trade thither, their
ship and goods sent thither should be forfeited to the com-
pany. Tlien the plea set forth, that the plaintiff with his
ship and suls did sail to the Canary Islands, and trade there,
without licence from the company; whereupon the defendant
did^eize the ship and sails on behalf of the company, as for-
feited. And on demurrer to this plea two .points were held ;
First, That the letters patent could not create a forfeiture. Cannot wUh-
Secondly, That the company could not without deed empower ^^^^ ^ ^j^
any tiiird person to seize goods, for their use, as forfeited ; P^° '^ ^j^
for (say the books) the seizing of goods for the use of a'^cor-^ SSmm for- ^"
poration is an extraordinary, and not a common service. ^^^^

4U Da Term. & McbaeUs, 1717.

Rex Noir this shews a carporatio0 can no more give an antbo*

^' rity, as to personal things^ without their common seal, than
as to any real estate ; and if the seizizif of goods for the nee
of a corporation, as foricttedto them, be an extraordinary
service, and sncb a poirer as cannot be gtv^n without deed^
though this be a power for the benefit of a corporation,
namely, to put them in posaesttott of goods, which before
they had a right to, and vrilatiBg only to personal g^oi^ and
to no real estate ^ if sudi an anthority (I say) cannot be given
without deed; afbriietfi, the Bsak «f j&^jrfam''^ empowering
one to set their nasse to a psoBMssory aote cannot be done
withflttt deed ; thi» being aa cxtcaoidHnry trust or employ^
meiit, such a one ndeed as^if abased, wqr in an hour's lime
endanger tiie rain ef the ccmpsny that gives this SMtboiily.
[ 425 ] For if an agent of the b«nk be, under their conwpso^ sealf.
empowered to set tiieir names to psomisaory notes, and fiwch
agent should, without any consideration or value received^^
sign a promissory note in the companjr^s name for &ve or
ten thousand pounds, I do not see but thai this would bindy
and at the seme time go near to ruin the company.

Thezeibre surely this ia a trust, net of a lig^t nature^, but of
the highest cencera and consequence to the conapany % and ii
in any case whatever an authority given by a eovpocatioift
ought to be undn their ooesmoa seal, without aU doubt this
authority given by the company to sign promissory notes
ought to be so.

It is plain a corporation aggregate cannot without deed
make or enter into any eontract ; and by the like reason th^
cannot without deed empower another to do that act, which
they themselnres cannot do but under these circumstances.
A corporatioQ aggregate cannot without deed bund themselves
to pay money; and for ib» saoie reason, they cannot without
deed authorise another to chairge themselves with the pay*-
fora**ndv' ^^^^ ^ ^^Y DDioney. It is evident a corporation cannot
broken. without their common seal empower their servant or agent

to enter, on their behalf, for a condition broken, though ia
the case of an estate of never so small a value, and though
this be for the benefit of the corporation, and cannot possibly
enure to their prejudice^ 1 MqL Ahr. 514. Damper v. Syinms;
much less can a corporation empower another without their
conunon seal to sign promissory notes in their name, whereby
. to ehaige themselves, it may be, with amUlion of money.

De Term. 8. Mi^kadU, 1717. 486

I shall only mention one instance more of what a coipovtr Eex
lion cannot do without a deed^ and that is, it cannot without ^'
a deed make an attornment to a grant of a reversion ; as if i^^, ^vw
lands be granted to a corporation aggregate^ whether for make an at-
years, or for the life of •/. i8., and the grantor being seised in
fee of the reversion^ grants it over to a third pexBon ; the cor-
poration, who have die particular estate, cannot attorn with-
oat deed ; and in pleading atitle to such a grant of a rever-
sioDy the deed of this corporation^ purporting such attorn-
ment^ must be pleaded with a pro/ert hie in cur' 0 Co. 38*
Bellamy^s case*

Here then is a very strong case : An attornment is but a Thoogh the
slight matter, being no more than a bare consent to the les* thing of very
sor^s grant; it passes no interest from the party attormng> q^^^®"**^
but the grantee is in by the grantor solely* It is favoured
in law, as tending to the perfection of a grant; and there-
fore cannot be upon a condition subsequent, for in such case
the attornment would be good, and the condition void and
rejected. The making an attornment is no more than what
the tenant is compellable to do, upon a proper conveyance ;
as that of a fine, upon a qtdd juris clamat brought against
the tenant. An attornment has, in our days, by the whole
Legislature been thought so trivial a thing, that by a late (a) («) 4 fts
act of parliament it is wholly taken away, as an useless in- *
cumbrance npon conveyancing. And if a corporation cannot
do so slight a thing, as to make an attornment without deed,
much less can they without deed do an act of that conse-
quence, as to empower another to set their name to promis-
sory notes for the payment of ever so great a sum of money.

But it will be objected ; if the authorising Adams to sign L "^^^ J
notes in the name and on the behalf of the Bank of EngUmd
ought to be under the common seal, then for want thereof,
according to this way of arguing, all the notes and bills given
by Adams on behalf of the Bank are void.

Htsp'. This is no consequence ; for in an action brought
against the Bank upon a bill or note signed by Adams, when it
shall be proved that Adams is an agent entrusted by the Bank,
and has been used to rign bills and notes, which from time
to time have been duly paid and answered by the Bank ; this
tt evidence, and will carry with it the highest presumption,
that Adanis waa lawfully authorised so to do, and conse-
quently authoriiMd under the common seal ; and at the same
time it may be impossible for a third person, that sues this

487

De Term. S. Michaelis, 1717.

Rex
Bigg.

[428]
mieUier writ-
ing a receipt
with red ink
acroM and
upon the face
and inside of
a note, can be
called an in-
donement ?
(a) Cap. 20.
sect. 36,

The meaning
of the word
" indone-
*« mcnt."

bill or note^ to produce such authority under the common seal
of the Bank ; and it would be unreasonable in the court to
put him upon it, in regard the same does not belong to him;
yet upon such evidence it shall be presumed, that Adams
was well authorised under the common seal to sign such bills
and notes, and consequently they mil be good : but in the
principal case there is no room left for sudi presumption, it
being expressly found by the verdict, that Adams was not
authorised under the common seal of the Bank to sign such
notes. So that this objection is of no force.

But if this point should be against me, and it should be
thought by your Lordships that the Bank without their
common seal could authorise Adams to sign notes in their
name, (though it be a matter of such very great moment, as,
if abused, may ruin the company) but admitting this to be
against me.

The second question is, whether this receipt for 90/.
written with red ink across and upon' the fietce and inside of
this bank note of one hundred pounds can be said to be an
indorsement ; for the statute of* (a) 8 and 9 W. 3. makes it
felony '^either to forge or coimterfeit a sealed bank bill or
'^ bank note, or to alter or rase an indorsement on any bank
'^ bill or bank note/' The present indictment is on the latter
branch ; therefore, if the receipt for 90/. written on the face
of this bank bill be not an indorsement, then the ofience is
not within the act of parliament.

This receipt written on the face of the note is not an b-
dorsement : the word Uidorsement is a legal word, for which
there is a proper (at least a law) Latin word, (viz.J indorsa-
mentum, as murdrum is the law Ixitin word for murder.
The meaning of the word appears from its derivation from
in and dorsum^ and signifies what is written on the back of
the deed or instrument. It is taken notice of in the Therms
of the Lawy CaweWs Interpreter ^ and Blunt^s Dictionary ;
and is frequently applied to a condition of a bond, in ancient
times commonly written in parchment ; and the condition is
commonly written on the back of the bond, and called an
indorsement. And this being the plain signification of the
word in the common use of it, manifestly implied from its
derivation, how then can it signify any thing written on ti^
face and inside, and not on the backside of the note ^

It is true, the verdict finds, that some time since the
making of this penal statute, it was usual for the bank to

De Term. 8. MichaeU$, 1717. 498

\mte the receipt for any part of the money paid upon the R«z
face and across the note with red ink ; and that this receipt^ ^*
though written on the face and inside of the bill^ is, since the r 4^9 ']
act, commonly called an indorsement*

But surely this cannot be material ; for by the jury's find-
ing that this writing the receipt with red ink across and on
the face of the note is commonly called an indorsement, by
this (I say) it is implied, that it is not always called so, nay,
that sometimes it is called otherwise. The word commonly
is uncertain : if it has been three or four times called so, it
may be said to be commonly called so, and yet it may much
oftener be called otherwise. Besides, as it is a proper legal
word, the true and legal import thereof cannot be altered,
varied, and made to signify the direct contrary ; and. all this
by some people's making an improper use of it. This would
be to make an indorsement, which is always written on the
backside of a note or writing, to signify the rery reverse,
(viz.) what is written on the foreside : it would be to give
such a latitude to the fimcy of people, who may scmietimes
misname any thing, as to take away all manner of certainty.

But what renders this objection the stronger is, for that
the verdict finds, tfiat at the time of making this act of par-
liament, and for some time afterwards, the only way x>f writ-
ing receipts on the bank's paying o£F part of the note, was,
by writing the receipt on the back of the note, which at that
time, fscirj at the making of the act was called an indorse-
ment and tins was indeed properly and justly so called ; and
writing receipts on the face or across the bank note was not
then practised; consequently the statute, in making the
rasing an indorsement felony, must intend such an indorse-
ment as was used at the time when the act was made, that
is, such as was written on the back of the bank note, and [ 430 3
could never mean a writing on the face or across the note,
which was not then practised, and could not have been fore-
seen, without the spirit of prophecy. And if , the bank have
found out a new way of writing receipts, they must apply
for a new act of parliament that shall extend to such their
new invention.

Again : this writing of a receipt across and upon the JGace
of the bank note being a new method, and not practised
w^feB. the act was made, I would put the case, that the re-
ceipt on xux. face of the bill, which the prisoner is indicted
for rasing, had been the Jirmi vemipt that war ever written

4db Ik Term. A hRchadis. 1717.

Rek in that manner^ would thiii have been an indoraement within
^* the act of pariiamenty and would it have been felony to

have, raaed the receipt thus written on the face of the bill ?
Surely not.

Then I would go further; and aak, if the piisoner had
ivfled the second^ third, or Cwirth receipt that had been
written in tins matter, would this have been an indorsement
within the act ? I do not see how it could. When then
woold the rasing of such receipt written on the &ce of such
bank notes first begin to be a felony ? This would be pretty
hard to determine*

Further, if this penal law did not originally, and at the
time of making it, comprehend a receq>t written on the face
of a bank bill, under the word indorsemeniy (as it is plain it
did not) shall such law in process of time grow stroi^;er and
more comprehensive than it viras at first ? Shall such a con-
struction be put upon it as thereby to make that felony some
years after the enacting of the law, which, at the time when
[ 431 ] it was enacted, was not so ? This would indeed be a strange
eonatruotion, by a liberal interpretation to enlarge a penal
law, contrary to the rule which says, t ^ shall be taken strictly ^
and must tend to make constructive felonies as odious as
eonstrsteHoe (a) treasons.
J^J**»«« If it should be objected, that to rase a receipt written by

Uwi haw not the bank on the £Eice of the note is equally mischievous, as
bTi^^^uu^ ^ ™°^ ^ indoraement on the back thereof, and therefore
conitruction. equally within the ac^$ this argument will not be allowed,
with regard to any law that is penal, much less in the case oi
one that is capital, such not being to be enlarged by parity
of reason, or extended by any equitable construction.

The statute of 25 JSd. 3. makes (or rather dedares) it to
be hi|^ treason to counterfeit the great seal ; and in 3 Insi*
16, 17* these cases are cited on that branch of the act : Ftrsi,
It a man takes off the great seal from one patent^ and fixes it
to another writing purporting to be another grant of the
king, this is held to be no {b) counterfeiting of the great
seal.
Secondlj/j If one having a grant by letters patent of the

(«) See the 13 & 14 Car. «. cap. 29. for reversing the attainder of the Earl
of Strafford.

(A) Held otherwise in the Year Book of 2 //. 4. and in Stamford P^ Cor.^
But the Lord Ch. Just. Coke oondemas that opinion, and witl* *iim conoOT tbe
Lord Ch, Juit, jffalc. Mist. PL Cor. aroL ^ isi.

De Term. S. Michaelk, 1717. 431

manor of Date frDin the Cr&wn, rases oat the fnanor of IM(f, iicK
and inserts tiie manor of Sttk, which is a greater manor, and J^'
Hkewtse belonging to the Crown ; this is also held to be no
coanterfeiting of the great seal.

Thirdfyy There is a case reported of an extraordinary eon^
trivance of one Leake, a chaBcery dtA. Thia Leake being [ 432 ]
about to take a grant from the €rowa, joined together tm>
thin skins of parcfanient of a proper size for letters patent ;
and glued them so close together, that they appeared to be
as one stdn ; and a tnie patent for aome incoiiaidendble grant
was written upon the outward skin, and lids patent wm
sealed. Afterwards the party having ungloed the two skins
took off the uppermost skin, and tiien wrote a more vmhiable
grant upon the innermost skin, and set up this tidel

Now, tiiough til these three cases were equally mischievmui
with the actual oounteifeiting the great seal ; though they
w»e all the most remarkable abuses of the great seal ima-
ginable; yet it was adjudged that none of the above meor-
tioned facts amonated to a counterfeiting of the great seaL
So cautious have the judges ever been of enlarging penal,
much more sanguinary laws, by equity; and diis too in
times when parlian«!^ being less frequent, there were
fewer opportunities of redresmng the laflings and slips in
one law, by applying for another.

So that, I humbly take it, the prisoner's rasing a receipt
written on the &oe of tiie biU oannost be said to be rasing an
bdorsenent. But if tiiis point should be also agiinst me.

The next question is, admitting this receipt written with wiiefiMrtik*
red mk across and upon the face of the biU to be an indorae- cc^^H^ ViT
ment ; whether the prisoner's taking out this indorsement ^f T'^^^
by putting upon it a certain liquor to the jury unknown be en beoited
a rating of such indorsement ; for so the indictment acpressly ^S?"*^ **
sayB, (viz.J that the prisoner erosi/, 4rc. / and I iqipcehend
adB cannot be called rasing.

Rasing of a deed or writing is scraping out by some knife, [ 433 ]
or other instrument : thus, radere nomen (a) signifies to
scrape out a name. Suppose the prisoner, instead of pouring
this liquor (which was lemon juice) upon the receipt, had
poured ink, surely that could not have been caDed raaing
^ut the receipt ; it would have been blotting, but not rasing
it o\A ; and if putting out the words by ink. had not been

<«) JureUut CnUa consul^ ientenUam ragahUj namen Pitonie jvdendnm
fattii ceniuit. Vide Tacit. Anuai. Ub. s.

433 Me Term. S. Michaelis, 1717.

Rex rasing, then no more can the putting out the words by any
^* other liquor be so called. Tliis taking, out the words by

lemon juice may be said to be an expunging or altering of
the bank bill, which last is within the words of the statute.
But the prosecutor has not upon tjhat clause thought fit to
indict us. We are. indicted only for rasing this indorse-
ment; whereas we insist, that the putting or taking out of
the receipt by pouring a liquor thereupon, cannot be called
a rasing out such receipt.

In the next place, we say the indictment is naught, as it
must be intended to be an indictment for rasing the inscrip-
Jum on a bank note.

The statute of 8 & 9 fFilL 3. par. 36. makes either of
these two &cts felony, (videlicet) Jirsty forging or counter-
feiting a bank biU or note; 2cUy, rasing or altering an in-
dorsement on a bank bill or note. So that the indictment
is to be intended on the latter branch, that is, for rasing an
indorsement; whereas it is laid for rasing an ittscriptum,
,Anglic^ an indorsement ; and here this Anglic^ is void (a) ;
for the word inscriptum does not properly signify an indorse-
[ 434 ] ment, but a superscription ; indorsamentum might do, or
there is a proper word in the dictionary derived from the
Oreek, (viz.) opisthographum. But if this point should be
against me, then

It is to be considered whether the verdict be sufficient,
since it does not find that the prisoner did this for the sake
of lucrej or with intent to deceive or defraud the Bank.
Whethor finim The reciting part or preamble of the clause of the act,
S^thTSSo? ^l^ich makes this felony, takes notice (i) that " whereas di-
parUament it « yers frauds and cheats had been put upon the Governor
imirite, that it ^^ ^^d Company of the Bank of JSngland, by the altering,
Aa?!? *^i5S? ^^ forging, and counterfeiting of the bank bills and bank notes,
proaecuted for ^' and by rasing and altering indorsements thereupon ; be
2SkS"S, has '' it therefore enacted, that this be declared and adjudged
done it with an « felony, without benefit of clergy."

intent to make ^ ®^

unlawful gain to himself, and to defraud the bank. (&) See Sect. 36.

Now, as the recital or preamble of an act of parliament is

key for opening the, meaning and intent of the act; so it

seems plain by this introduction or preamble, that no rasu'S

(a) If there be a proper known Latin word to express a thin^ oy, node-
scnpUoD, though with an AngUcb. wtU be sufficient. Sty. Si »• ^^oyd v. itfoTj^w",
Ff/o. 68.

De Term. S, Michaelis, 1717, 434

or altering a bank-note can be felony, unless it be done to Rex
deceive or defraud the Bank. The preamble recites the mis- _ ^*
chief^ and it is the business of the enacting part to cure that
mischief.

Suppose then a man, by way of experiment, should pub- Otherwise it
Ucly, nay, at the Bank, and in the very view of the Go- tol^'pe^n'*
vernors and Directors thereof, make an alteration *or rasure do>n» i* '^^^

. . . . f 1 1 cently and by

in a bank-note, or an indorsement of such note : suppose he way of ezperi-
should, in such public manner as I have mentioned, commit ^^^^
the very fact of which the prisoner is found guilty, videlicet, t ^*^ '
by putting a certain liquor upon an indorsement of a bank-
note, take out the indorsement, and make no manner of use
of it afterwards, but at the same time deliver it up to the
Bank^-^would this be felony ? Give me leave to say, there
is no colour for it : actus nonfacit reum, nisi mens sit Tea,

Wherefore, taking this not to be felony, then, for aught
appears by the verdict, this might be the very case, all the
whole verdict might be true. The prisoner might, by put-*
ting a liquor upon the indorsement written on the bank-note,
have, taken out the indorsement ; and yet this might have
been done innocently, and without any intent to defraud the
Bank. It is consequently absolutely necessary it should have
been found by the jury that what was done by the prisoner
was done with design to defraud the Bank.

It is remarkable that, in the late indictment against Daw-
son, this was expressly found ; and I presume the counsel
who perused the indictment thought it necessary in the pre-
sent case, because it is inserted in the indictment that the
prisoner did this to make an unlawful gain to himself, and
to defraud the Bank of great sums of money.

I cannot but observe to your Lordships that, after the
trial and the verdict found, this omission in the verdict being
discovered, the counsel on the other side so far thought it to
be material, that when we had once attended your Lordships^
and had^ as was then thought, settled the whole special ver-
dict, the other side (I say) gave us a new summons in order [ 435 ]
to have this inserted in the verdict; but your Lordships
with great justice said, it could not be done without the find-
ing of the jury. Indeed, at the first sight, I was not appre««
hensive this defect was so material, as on a second view,
occasioned by the mistrust of the King's counsel, I now find
it to be. And therefore, since the whole verdict n^y be
true, and yet the facts found to have been done by the pri-

VOL. Ill, 2 A

436 tk Term. S. Michaelis, 1717.

Rex goner might have been doiie innocently and witliout any iii-
n^' tention to defraud the Bank ; for this reason the verdict, as

found, seems defective, and not to make the prisoner guilty
of felony.

Thus have I gone through what I intended to trouble your
Lordships with on this occasion : I would add, that your Lord-
ships have now before you a case, wherein the life of a man
is concerned ; and if all these points are not plainly for us,
(as we hope that at least some of them are) but if any of
tiiem should be but doubtful, you will even then conclude
infavorem vitne.

Your Lordships are in the case of a penal law, penal even
to life, and therefore not to be taken strictly, or aided by
any intendment or equitable construction whatsoever.

Yoar Lordships are in a Case depending on the construc-
tion of a new act of parliament at best but doubtfully penned;
and the gentlemen in the direction at the Bank may, if there
shall be occasion, easily obtain an act for the ex^nation 0f
it, in these times of frequent sessions of parliament.
[ 437 ] Your Lordships are hi a case, where, if you should be rf
, opinion that this fact, as now found, should not be felony,
yet the prisoner will not have escaped without punishment,
having already suffered a year and a half's close imprison-
ment, and that in Newgate, And therefore, upon the whole
matter, —

If Joshua Adams was not well empowered, as this verdict
is found, to sign notes for the payment of money for the
Bank, he having no aiithority under their common seal for
that purpose, as "we take it he was not, this being tm au-
thority and trust of the highest nature that can possibly con-
cern the Bank :

Or if this receipt for ninety pounds, part of the sum of
one hundred pounds, written across and on the face of the
bank-note, be not an indorsement, (as we take it not to be,
being the very reverse cf the meaning, sense, common use,
and derivation, of the word :)

Or if taking out the words of the l-eceipt upon the bank-
fiOtfe by putting this liquor upon it be not rasing or scrap-
Ihg out the words, as in common sense and parlance it cm-
not be so taken : —

If the indictment be ill only fbr rasing the inscriptum on
the bank-note, without saying the indorsement .•—

Or if it be necessary that the verdict should find that

D0 Tem^ S. MichaeUfi, 1717. 4^

this fsEict was done with a view to lucre^ and to defraud the Rex
Bank, as surely it is by reason of the preamble of the act n ^'
which recites that the frauds and cheats which have been
put upon the Bank were the inducement and occasion of *
making the act ; and all the facts found by this verdict may [ 438 ]
possibly have been done innocently, and by way of experi-
ment ; for which reason it ought to have been found as laid
in the indictment, that the prisoner did this with an intent
to defraud the Bank : if any one of these points be with me,
(as I humbly take it they all are,) then I hope your Lord-
ships will be of opinion that this lia^t, as found by the verdict,
is not felony, and in consequence of it, that the prisoner
shall be discharged. [A]

[A] In this case the Jadges differed in opinion : bat the majority of them
beU it tp be felony. H0wever the .pris«oej|r was transported^ and not executed.

2a2

439 De Term. S. Mickaelis, nSS.

TERM. S. MICHAELIS, 1735,

DOMINUS REX v. THOMAM BURRIDGE.

[In Banco Regis.]

The Reporter's argument for the Prosecutor*

LordH^RD- This comes before the court on a special verdict found
wicKE,C. J. before Mr. Justice Page, at an assizes held at Tauntanj for
Page. Sir *^® county of Somerset, April 2, in the seventh year of his
Edmund present Majesty, upon an indictment of the prisoner at the
Probtn, bar, Thomas Burridge, for aiding and assisting one WHliwn
SirWiLLiAM Palmer, convicted of felony, to escape out of prison. The
tiemu " indictment of this Thomas Burridge sets forth, that at the
One conricted general quarter-sessions of the peace held at the city of fFells
^benefiuJ?" in and for the county of Somerset, on the 1 1th of January^ in
clergy, and the fifth year of his present Majesty, before Thomas Carew,
be°traDsportcd ^^9- *°^ Others his Majesty's justices of the peace, * one
forse^nyean, William Palmer was in due form of law convicted of steal-
ion till actual ing and taking away an ewe-sheep, of the value of six shil-
and wMce*"'' '^S^J ^^ *^® goods and chattels of a person unknown ; for
pursuant to the which felony fFilliam Palmer was by the said court adjudged
if astnnger" ^ ^^ transported for the space of seven years, according to
988Ut such fc- the fonn of the statute; and was by the said court committed

' Ion convicty ■ ^ «•

\>eing in cus- to the custody of Edward Cheney , the then keeper of his
wSrSf tolSr Majesty's gaol of Ivekhester in the said county, there to re-
portation, to main until he should be transported according to the said

escape out of s. ^

prison, (pro- sentence.

Tided it be

«uch an assistance as in law amonnts to a receiving, harbouring, or comforting, such felon ;) tlie
person assisting is accessory to the felony after the fact : but then, in the indictment for this
last oifence it must be charged that the offender had notice of the other felony or oonnctioB.

[•440] 2

De Term. 8. Michaelis, 1735. 449

And that afterwards^ to wity on the 13th of Oct. in the H^x
isixth year of the reign of his present Majesty, the prisoner ^ ^
Thofnas Burridge, at Jvelchesier aforesaid, did wilfully and
feloniously aid and assist the said William Palmer to escape
out of the said gaol, by means whereof the said William Pal-
fner then and there did escape out of the said gaol, against
the peace of our lord the King, bis crown and dignity ^
which indictment the said justices did by their own proper
hands afterwards at the gaol- delivery for the said county, on
the 31 st day of July, in the seventh year of the reign of his
present Majesty, before the Lord Chief Baron Reynolds and
Mr. Baron Thompsofi, then justices of gaol-delivery for the
said county, held at Wells before the said justices last abovfs
named^ deliver into court ; whereupon at that same gaol-
delivery, the sheriff of the said county of Somerset was com-
manded by the said justices, that he should not forbear by
reason of any liberty within his bailiwick, but that he should
take the said Thomas Burridge to answer unto our said lord
the king touching and concerning the premises. And now,
that is to say at the general delivery of the gaol of our
said lord the king, of his said county of Somerset, of the
prisoners therein, being held at the castle of Taunton, in
and for the said county, on 7\tesday the 2d of jlpril, in the r 441 1
seventh year aforesaid of the reign of our said lord the king,
before Mr. Justice Page and Mr. Justice Lee, the said 7%o-
mas Burridge, under the custody of Thomas Wellman, Esq^
sheriff of the said county, under whose custody the said Tho-
mas Burridge was before committed for the cause aforesaid,
being brought to the bar by the sidd sheriff, was arraigned,
and pleaded Not guilty, and put himself upon the country ;
and a jury being impannelled, they find a special verdict ;
that is to say,—-

The jury find the indictment of William Palmer for the
felonious stealing of the sheep; and that he was convicted of
that felony, and that he prayed the benefit of tiie statute in
that case, which was allowed him ; and that he thereupon
was sentenced to be transported for seven years, which in-
dictment, conviction, and sentence, the jury find in hcec verba.
They further find, that William Palmer was by the said jus-
tices, at the said general sessions of the peace^, committed to
the custody of the said Edward Cheney, in the indictment
mentioned, the then keeper of the said gaol at Ivelchester, in
the said county ; and that afterwards, and before the 13th

441

De Term. & Michaelis, 1735.

[ 442 ]

1^6 casein
short

XaTBy 14 G. 2.
this is made
felony without
benefit of
clergy.

W Sect. 4.

[44;i ]

day of Otioh&iA the; said sixtli year at ibe king, &e said
Bdktatd Chentl^, the gaolci* of the said gaol, died ; ^i^ fbdtlhtf
6aid fFilliam Painter retnamed in the said gaol m Uie euB-
tody of John ProcttfTj then being sheriff of the said cmaity,
alid not in the custody of any person or perscms whotsde^er
(C^cfntractillg for the transpbrtation of the said fFUlkm
Palmer.

And the jufy furthet' find, that no coiltmct ttfM made with
the sold sheri^, or with any other person whatsoet^r^ for the
transportation of the said William Palmer for the sud
felony, pursuant to the ftct in that case provided.

The JHry ftnther find, that the now prisonei* Thimos Bur-
fidge on the said 13th of Ocfoi^rin the said sixth year of die
r^ign of the King, then beiiig a prtsonei* in the said ^Mi ftt
Ivelchester aforesaid, itoid in the custody of the said ^oAn
Proctor then being sheriff of the said county, did wilfillly aid
Itnd assist the said frUlidm Palmer;, so ijeing in custody tts
aforesaid, to make his escape out of the said gaol ; alidtrte-
ther upon the whole matter the now prisoner be |tiilty of
ifelony, the jul*y leave it to the court.

The case is in short no more than this : one WilHm
Palmer \vas convicted of sheep-stealing, which is ftkiny (a)
within benefit of clergy. Upon his conviction, he prayed the
benefit of the statute in that case provided, (by which toast
be meant the late statute of the 5th of Queen Anne, ekap. 6.
which allows the benefit of clergy without (6) reading) which
was accordingly granted him. Upon this there is judgment
given against him, that he should be tlransported for seren
years ; and before any contract made by any person with the
sheriff, or any other, for the transportation of the said Wil"-
liam Palfner, he is assisted by the pri&oner at the bar to es-
cape out of prison. And the question is, whether this fftl-
liam Palmer at the tiine of his escaping was a felon ; or
whether the felony of Wiltiam Palmer was pardoned, cither
by the statute Of 1 8 Eliz. chap. 7. which takes away purga-
tion, or by the 5th of Anne, chap. 6. which allows the bene^t
of clergy without reading 5 or whether any Wotds of the sta-
tute of 4 Geo. 1. (c) or othet statute which empowert the
Judge to ofder transportation in cases of clergyable felcMiles,
whether (I say) any words in this or any other statute extend
to pardon thid PTiiliam Palmer h^fote his ttansportation add
seMce beyoild sea for seven years ? For it must be admitted,
that if tniihm Palmer was by any of these acts pardoned

De Term. S. Miclia^s, 1735, 443*

for the felony at the time of his escape, then he not being at Rex
that time a felon, it could not be felony in the prisoner at the ^*

bar to. assist him to escape. But I take it, that notwith-
standing any of these acts of parliament, fVilliam Palmer
was and continued a felon at the time of his escape ; and
consequently that it was felony in the prisoner to assist him
in order thereto.

The statute which I would beg leave first to take notice of, in casci within
though not the first in time, is that of the 5th of Queen Anne^ clergy the sta-
ehap. 6., and it is the last clause of it. This statute recites, J"^**^^ ^^»^"
that ^' forasmuch as when any person was convicted of any readini^, and
" felony within the benefit of clergy, upon his prayer to have the^^y shall
" the benefit thereof allowed him. it had been used to admi- ^«; p«ni»hcd as
^^ nister a book to him, to try whether he could read as a
*^ clerk, which by experience had been found to be of no use :
^' therefore it is enacted, that if any person be convicted of a
" felony within the benefit of clergy, and shall pray to have
" the benefit of this act, he shall not be required to read ;
^^ but without any reading shall be allowed, taken, and re-
'^ puted to be, and punished, as a clerk convict, which shall
<^ be as e&iectual to all intents and purposes, and be as ad-
*^ vantageous to him, as if he had read as a clerk."

So that now, without the uitervention of the ordinary,
(who never was more than a [A] minister attending the [ 444 ]
court, and had no part of the judicial power) the offender is The ordinary
to have the benefit of clergy wiUiout his reading at all. But . judge^^^t »
it cannot be insisted upon, that there are any words in this a minitteronly
statute of the 5th of Queen Anne^ which amount to a pardon anceof clei^.
of the offender ; the statute sa} s, he shall not be put to readj
but shall be taken to be as a clerk convict ; ' but at the same
time is so far from pardoning the offender, that it says the
very reverse, by providing that he shall be punished, and that
too as a clerk convict.

[A] Upon a writ of error of a judgment upon an indictment of sheep-steaKng,
(as in the principal case above) amongst many other exceptions, one was, that in
the entry of the allowance of clergy, no mention was made of the ordinary, {viz,)
quod liber tradUur defendenti per ordinar' &c. sed non aUocat\ For, by Holi^
Chief Justice, no mention was ever made of the ordinary for this purpose. Only
formerly it was said, tradiiur ordinario^ when the usage was, to delifer the
clerk to the ordinary for purgatibn. And in the time of Edward Fourth, <9
£tftv. 4. 98. A. il EdxD. 4. 21. 6.) it was adjudged, that the ordinary is not a
judge of reading, but only an officer ministerial to the court ; and upon tb/.*i
jg^round the allowance of clergy by the ordinary was never entered. Skone^s cast*,
JUL 6 GtiL'B. R. from the Reporter's manuscript. See also the Lord Ilale*^
Jlist. PL Cor. vol. 9. JM, 380, 381.

444

DeTerm. S. Michaelis, 1735.

Rex

V,
BuRRIDGE.

What is meant
by a clerk con-
vict; and

how fiucli mono
is to be pu-
nished by 18
Eliz.
(a) Sect. 2.

[ 445 ]

From what
time an of-
fender con*
^cted of a
clergyable fe-
lony, and be*
ing idlowed kis

But then it may be asked, what is meant here by a cleik
convict, and how is such a one to be punished ?

Now, by the words a clerk convict is intended any person
in orders, or capable of being in orders, that is convicted by
the verdict of a jury, or by his own confession, of a felony
within benefit of clergy ; and such a clerk convict was this
William Palmer. And

As to the next question, how such a one convicted of a
felony within the benefit of clergy was to be punished ? The
statute of 18 Eliz, chap. 7* {o) gives a plain direction, '^ that
^^ the offender, after clergy allowed, shall not be delivered
^' over to the ordinary to make purgation, but shall be burnt
^' in the hand, and after burning, he shall be delivered forth-
'^ with out of prison ;" which latter words have been taken
to amount to a constructive statute pardon. So that, I thinks
two things are to be considered :

Flrst^ From what time a felon convicted of a clergyable
felony is entitled to the benefit of the statute pardon of 18
Eliz. ; whether from the allowance of clergy, or from the
burning in the hand ?

Secondly y What alterations are made as to this point by
the statute of 4 Geo. I. which leaves it to the discretion of
the Judge to order the offender to be transported, instead of
being burnt in the hand : or, with respect to the present
case, whether JVilliam Palmer j having been convicted of
felony within the benefit of clergy, and having been ordered
by the Judge that tried him to be transported, is entitled to
the benefit of the statute pardon, either by 18 Eliz.^ ot by
4 Geo: 1., before he has been transported?

And I take it that he is not : which point, if I shall be able
to maintain, from thence it will follow, that Palmer con-
tinued to be a felon at the time when the prisoner assisted
him to escape ; and if Palmer was then a felon, it must be
felony in the prisoner at the bar to assist his escape; and
further, as I apprehend, that it does not alter the case, that
no one had contracted to transport this Palmer, who was
thus under sentence of transportation, and was assisted to
escape.

With regard to the first point ; the time from whence an
offender convicted of a cler^^yable felony, and being aUowed
his clergy, and burnt in the hand, shall be deemed to be en-
titled to this statute pardon ; that depends entirely upon

clergy, ahaU be deemed to be entitled to the statute pardon.

De Term. S. MichaeUs, 1735. 446

the statute of 18 JEKz. cap. 7-9 &nd on the construction that Rex
has been made thereupon ; for which reason I would pre-» ^'

yiously take notice, Jirst^ of the words of that act, and the
occasion of making it ;'and, 2dly, how the words came to be
construed to amount to a pardon, when they do not express
any such thing.

As to the statute of 18 Eliz. cap. 7* the title of that part
of it which relates to the present question, is, an order for
the delivery of clerks convict without purgation. The pre-
amble, so far as concerns this point, says, ^* that for the
*^ avoiding of the sundry perjuries, and other abuses in or
'^ about the puigation of clerks convict delivered to the or-
^^ dinaries, be it enacted that all persons that at any time
'' thereafter shall be allowed and admitted to have the bene-
^ fit or privilege of their clergy shall not be thereupon deli-
'' vered to the ordinary, as had been accustomed ; but after
^' such clergy allowed, and burning in the hand, according
'' to the statute in that behalf provided,'' (which must be
meant of the statute of 4 H. 7« cap. 13. that having first in-
flicted burning in the hand) ^^ the offenders shall be forth-
^^ with enlarged and delivered out of prison, by the justices
"before whom such clergy shall be granted: (a) provided («) Sccu3i.
^^ that the justices before whom such allowance of clergy
^' shall be had shall and may, for the further correction of
" such persons to whom clergy shall be allowed, detain
" them in prison for such convenient time as they in their
^^ discretions shall think convenient, so as the same do not
^' exceed one year's imprisonment ; with a further pro-
^ vi8o,(i) that one admitted to his clergy shall nevertheless (&) Sect. 5.
*' be answerable for other felonies.*'

As this and divers other statutes take notice of the allow- [ 447 ] *
ance of clergy, (or to speak more properly, the benefit of T^e original of
^^^SYy) it may not be amiss here to observe, what the Lord clergy.
Hobart (288) says of the original of this privilege, {viz.)
that the benefit of clergy was a refuge provided by common
law in favour of a literate offender; but that it took its
original from the great regard shewn to the church ; and al-
though at first only clerks in orders were allowed such privi-
lege, yet afterwards this law, in favour of learning in general,
was extended to all persons capable of taking orders. But
as to the occasion of the statute of 18 Eliz. it appears from
Ihe preamble thereof, already taken notice^of, to have been

447 f De Term. 8. Mchaelis, 1735.

Rkx made to avoid the aandry peijtfries, and otilier abosee com-
^' xnitted in making purgation. The manner of theae trials be«

fore the ordinary is set down in Stamford J38. Hob. 289.
PuU. de Pace Regis 217- more fully than in any other
books, and appears to have been thus :
And the man- First, the party tried was himself to make oath of his io*
triarbifore Bocency ; next, there was to be the oath of his twelve com-
the ordinary, purgators, who were to swear, that they believed him m-
nocent ; then the witnesses for the party tried were to give
their evidence ; after which, the jury were to brii^ in their
verdict; and if the verdict was /or the prisoner, the ordinary
pronounced him innoc^it. This solemn form and interven-
tion of the several persons concerned in these proceedings,
with the several oaths that were made on the occasion, did
and the ill create great variety of perjuries, and (which generally are
thiuaJumd" their companions) subornations of peijury.
tUem. It is the Lord HobarVs remark, (291) that the witfiesses

[ 448 ] in this sort of mock trials, and likewise the compurgators^
who were upon their oaths de credulilate^ as also the jur^t
ail had their share in these perjuries. His Lordship further
observes, that the Judge himself was not quite clear: he
might have brought in one more for a share, {viz.) the party
tried, who, tliough he had been before convicted on the
clearest evidence, and though never so conscious of his own
guilt, yet still was to swear he was innocent. But however,
by this kind of mock trial of purgation, notwithstanding it
The adran- "^^ accompanied with so much wickedness, if the party was
**^d^to th^' ^^^^^ "^ guilty, he received these advantages : he was re-
party, in case Stored to his credit and to his liberty, to his capacity of pur-
fae^as found <^l^^sing goods and chattels, and of taking and receiving the
Not guilty. rents «nd profits of his own estate from thenceforth to
accrue ; and from that time was to be taken to be perfectly
innocent. Neverliieless, such purgation had no retroqpecty
so as to restore to the party any of his goods and chattels, or
the r^nts and profits of his lands that were before vested in
the Crown, as forfeitexl on the former conviction by the
verdict. 5 C9. 1 10. Foxley's case.

But as the parties thus tried before the ordinary upon
their puliation were generally acquitted ; therefore, where
a felcm tried in the temporal coiuls was not only found
guilty, but that guik appeared to be aggimvated with some
heinous drcumstaaees, in such case the tempoial eooit^

De Term. 8. Michaelis, 1*735. WS

W^ld not tmrt the ^fdiffarjr with the trial of the tender, Hn
but delivered orer the cleA contict absque purgaHtmefbd* ^'

enda: under which ciftumstanccs the clerk cofltvict coald ,^

. Whatwerethe

not make purgation, but was to continue in prison during conseqnences
his Kfe ; all which time he was tocapable of purchasing any ^^^f^^^^^
personal estate, or <rf retaining to himself any of the rent« convict to the
and profits Of his real estate, unless the King should be qne^'^a.''
pleased to pardon him. And yet this was not without its in- ^^^^ facicnda.
Conveniences ; for it was looked on as severe (and with [ ^® J
some reason too) for the temporal courts, almost in anydwe^
to send the clerk convict to the ordinary absque purgatione
facienday when it was to be attended with the consequences
above mentioned: wherefore, generally speaking, clerks
convict were delivered over by the temporal courts to the
ordinary. Without taking from him the liberty of making
purgation ; and as these perjuries (and the evil consequences
of them, subornation and corruption,) usually attended
such purgations ; as these mock trials took their rise from
factious tenets, tending to exempt the clergy from the secu-
lar courts ; as this was a remnant of the Popish power, and
an usurpation on the common law,* it seemed high time to
abolish so vain and wicked a ceremony.

For which reason this statute of 18 EK%: quite takes away Pufgatioa
purgation j and enacts^ " that after the oflbnder is allowed {jf'lJljf TJS ^
his ** clergy, he shall not be thereupon delivered to his ordi- Ae offender
" nary (as had been accustomed) ; but after he has been al- continued in
" lowed his clergy and been burnt in the hand, he shall be pri«on foran/
*' forthwith enlarged and delivered out of prison by the jus- ceedioirftrear,
^ tices that allowed him his clergy, with a proviso, that the JJiJo^ricd^m
^^ Judge may, if he in discretion shall think fit, continue the thinks fit
** offender in prison." The meaning of which last clause
was, that whereas before the making of this law, it was in
the power of the. Judge to deliver over the ofibnder to the
ordinary absque purgatione y in consequence of which he was
to continue in prison during his life, unless pardoned ; this
Was thought too severe ; and instead thereof, the Judge who
tries the prisoner^ if he finds that he deserves some further
panbbment, may still detain him in prison for any longer
time not exceeding a year.

The second point to be considered is, how Aese words in [ ^^ ]
«ie statute of 18 El%%. which enacts, that the offender after SSS*rf/^f%*
his being allowed his dergy^ and being burnt in the hand, £i«s> ^Uch

ozpreas no-
thing of pardon, came to be construed as such.

450 DeTerm. S. MichaelU, 1735.

SOSRIDOB.

Rex ahall be forthwith enlarged and delivered out of prison ;
how these words (I say) which express nothing of a pardooi
have yet been constraed to amount to one.

Now that was for the following reasons : as the statute of
18 JEli%» had taken away this proceeding b^ore the ordinary,
and by consequence deprived the offender of the opportunity
of making purgation : so it was reasonable to put the offender
in the same condition as he woidd have been in if he had
performed that purgation which the act of parliament dis-
abled him from doing.

Hard indeed it would have been, if after the offender had
undergone the punishment of being burnt in the hand, and
had been discharged of his imprisonment, his incapacity
should still continue of purchasing or taking any goodSi
chattels, or personal estate, either by his own labour and io-
dustry^ or the bounty of his friends. This would be for the
parliament to set a man at liberty, and yet at the same time
to disable him from making any proper use of that liberty;
BO that, to avoid such an imputation of hardship, it was very
reasonable for the Judges to construe the words of this act
in the sense they have done ; and, where the act says, the
offender after his being burnt in the hand shall be discharged
out of prison, to interpret it to mean, that he shall be dis-
charged from any further punishment ; 'and that these words
shall be taken as a periphrasis or description of a pardon.
Besides, the proviso in the act which says, that the clerk ad-
mitted to his clergy shall be answerable for other felonies,
[ 451 ] implies strongly, that he is never to be questioned again for
this, taking the same to be pardoned by the act. See Hob.
291.

It remains then to see, when this pardon is to commence
and take effect, and from what \ime the offender is to have
the benefit thereof. And here the statute itself is express [
for it says, after clergy allowed and burning in the hand, the
^offender shall be discharged out of prison^

It has indeed been contended on the other side, that the
I>uming in the hand is not any part of the punishment, but
tonly a mark of infamy, to notify to the court that the of-
fender has already had his clergy, and is to have it no more;
and for this is cited 5 Co. 50. Biggin's case, and Hob. 294.
from whence it has been inferred, that if the burning in the
iiand be no part, of the punishment, it is not material thst
the prisoner should undergo it.

De Term. S. MchaeUs, 1735:

B^it, ^th submission, I shall endeavour to prove, that Rex

burning in the hand is part of the punishment. At common .^ ^*

law this punishment was not known, having (as is observed » i • i^

above) been first instituted by 4 H. 7* cap, 13, Afterwards hand when ^

hylOSfll IF. 3. cap. 23. sect. 6. it was changed into bum- ^^^f^^^ ^

ing in the cheek ; and finally, by 6 jinn, cap, 6. sect, 2., re^ hu clergy,

changed into burning in the hand. It must be admitted, the hiinirhat^a»-

Lord Coke says, that burning in the hand is no part of the J^Jt^J^? ^^*

pimishment ; and that this holds even in the case of an ap- the contrarv,

peal of murder where the appellee is found guilty of man- jj,ffj^g®[ „

slaughter, (viz.) that even there, though it be the suit of the appears from

party, the King can pardon the burning in the hand ; and ^porten,'a7

from hence it is collected, that after clergy allowed, supposing «iao ^ro? i*^'

, , * , i. .1 . 1 \ fi authontiet.

burning m the hand to be no part of the judgment, then no

part of the punishment being behind, or remaining to be [ 453 ]

undergone, therefore the offender immediately after clergy

had is entitled t4) the benefit of the statute pardon ; so that

in the principal case Palmer no longer remained a felon, and

consequently that it vras no felony to assist him in his escape.

And yet, with all due deference to so great an authority, I
must beg leave to insist, that this case, as reported by the
Lord Cokej is not authentic, which in a great measiure ap-
pears from the contemporary reports of the same case, which
represent it in a quite diiferent manner, as does also a later
report. Besides which it is observable, that the very reasons
given by the Lord Coke, for that resolution, make against, or
seem at least to weaken, the force thereof.

This case of Biggins is reported in two other books, both
of great weight, Serjeant Moore, and Mr. Justice Crook ; and '

both theif reports of it are different from, nay, contradict the
report of it in the fifth Coke. In Moore 571. it is reported
by the name of Stroughborough v. Biggon ; and appears to
have been an appeal brought-by the wife for the murder of
her husband, wherein the appellee was found guilty of man-
slaughter only. I will mention the words of the book, only
turning the law French \vito English.

The question was, whether the general pardon could par-
don the burning in the hand, (which must be meant the
Queen's general pardon, for the next words are whether the
Queen could pardon the burning in the hand,) and, says the
book, it was agreed the Queen could not pardon it ; and that
the pardon could not operate thereon, because it was the
vck of the party. And so (continues the book) it is like

453 Dt Term* S. MichatU$, I'JS^.

Rbl tbe COM of coipaiiil ptuiiriixnrat op t^ «tot4ite of forgery or

*- feriury, (^) wherry if ib» party grieved wsm by original or

(m)b]BJ^\ ^^^ Queea cwoot pAidoo it. B«t it m old^erwise where

■. li. the prooeedingft ajre ia tb(^ StiurXhamb^i f<N: thei:i^ the pro«

aeeiitima a)« at th€ «^ of the Queeii, l^eixsupon tlie ap«

pdlee cofupounded the pro$eiMitioD for forty marks.

The otfcfi: refiort of the aaoie ca»^ i» in Cr/». £/t& £32,
€i&y by the omoe of SJutckborough fiod Biggins^ wheve^ io
aa fippeiU of nurder^ the appeliee ww found entity of vcamr
sbnghter. And la Cro, Eli*. 632, where the case appeao
to hare Iheen first spoke to^ H ki said, the court ruled, that
the appeal being the «uit of party^ the buruiiig \a the haa4
could aot be pardoned; and the question being atirred a^gain
in Cfo, Elish €82. the court M^ere divided, Popbam Chief
Justieei and C^tocA . Juiattice, hcAdiag, that the Queen could
not pardon the burning pf the hand, aa this was at the suit
of Ae party, and they eompared it to an^a^rtion on the sta*
tute of fergerjr : but G^iwdy and Fenmr Justices maintained
the eoatiary, (though it iom not appear by the book that
theae gpsaFC any season for their opinioo. However upon this,
the book aayi^ (that the appellee vas advised not to run tibe
risk of the judgnent, but to buy off the appeal, and to givr
the f^pettant^ l^ wldow^ forty maiks to discontinue her a{k
pealf whidi ^was accoidiRgly done.

So that upon the whole, instead of this case being adjudged
agreeably to X^ogrd Coke*^ report, for that Ae King could par*
don the burning of the hand in the appeal, it appears by the
two contemporary reports, that the caae was never adjudged,
but compounded ; and that the f^pellee was advised by his
own counsel^ not to abide the event of the judgment but to
buy off (the appeal*.
[ 454 ] And now I would consider the reasons given l^ the Lord
CStMbe, for what is reported by him to have been the judgment
in JBiggen's case, which instead of supporting, do very much
weaken, that authority. The reasons given by the book are,
first, for that the burning in the hand is no part of the
pumishment.

But as to this, surely burning in the hand is part of the
punishment, not only in respect of the pain by buroiogi
which is no slight one, provided the judgment be impartially
executed, (as must be suf^osed ;) but on account of its beiiv
a lasting brand of in&my which the party is to carry about
him to his grave. It ji; so iar from bejbg op jpait ^ ^

toe Term. 8. mehaeUa, 1735. 45*

BVRMBOE.

puBisfamentj that k is all the corporal paaishaieiit he is to Rftz
undergo in this case. ^ ^*

The other reason given by tiie Lord Cehe, in his leport of
this case^ is still less maintainable, namely, that it ia no part
of the Judgment : whereas, plainly it is the very judgment^
and is so entered on the record in these words, idea const-
deraium est quod [the offender] in nuum sud Usvd cauteri-
zehiTy according to what is taken notice of in Mr. Justice
Raymond'^ Reportiy 309. EUzubeih Celitr's ease, where the
reporter observes, that the precedents in Rasiail am «o.
Afid the same book likewise says, that Biggen'^ case was
compounded, as I have mentioned before, and never ad*
jvdged; The Lord Coke also at the latter end of faia last
reason admits, that if this burning in the hand were part of
the judgment, then the Crown could not pardon it, it being
at the suit of the party ; and if so, then this appearing to be
the very judgment, the authority of the case is plainly given
up by him.

It is true, in the case of Searie v. WiUiamsy Hoi, 291. [ 455 ]
the Lord Hobart says, that after the benefit of clergy allowed
to the offender, the statute, though without burning in the
hand, operates as a pardon. And I cannot but admit that in
the case then before the court, this was righdy said, because
it was 1%e case of a clergyman in orders who was the of*
fender ; and a clergyman has the privy ege of not being bwmt
in the hand ; for the statute of 18 Eliz. does not require
those to be burnt in the hand who are by law privileged and
exempted therefrom, as clergymen are. And though after-
wards the Lord Hobart says, that where a felon has his
clergy, and ought to be burnt in the hand, yet it is not es-
dential, but that a man may have the benefit of the statute
notwithstanding he be not burnt in the hand, as where the
King pardons the burning, it is equally beneficial to the of^^
fender as if he had been burnt ; and that in such case, wiih->
out being burnt in the hand, the offender is entitled to the
benefit of a statute pardon ; though I say the Lord Hobart
asserts this, and his assertion be admitted to be law j yet
what I am concerned to maintain, and which seems not to be
denied by the Lord Hobart ^ is, that wherever the offender is
not exempted from being burnt in the hand, either by being
a clergyman in orders, or a peer of the realm, or by being
pardcmed; in such case the offender nmst be .burnt in the

455 De Term. S. Michaelis, 1735.

Rex hand before he is entitled by the 18 Eliz. to the benefit of
^* the statute pardon.

And indeed this seems plainly implied in the last two Imes
of the case of Searle v. fTilliams, in Hobari, which are,
'^ that where the statute says after burning, this imports
'* where burning ought to be ; otherwise, says the book, the
[ 450 ] ^^ statute would do no good to clerks, in whose favour it was
" chiefly intended."

The next case cited against me was out of the Lord Hak*s
Pleas of the Crown, 24D. cap. Clergy, where that learned
author, in reckoning up the effects and advantages of being
allowed the benefit of clergy, says, that in ancient times the
consequence of allowing clergy was the delivering over the
offender to the ordinary, either to make purgation, or absque
purgatume, as the case might require : but, says the book,
by this statute of 18 Eliz. the offender shall now only be
burnt in the hand ; which has (namely, which burning in the
hand has) these effects : \st. It enables the judge to deliver
the offender out of prison. 2{//y, It gives him a capacity to
purchase and to retain the profits of his lands. 3<%, It re-
stores him to his credit. And for this he cites Hob. Searle
V. Williams.

Now, to what words must all these effects and advantages
refer 2 Why plainly to the last antecedent ; and that is, to the
burning in the hand; after which (viz. then or on this con-
dition precedent) accrue to him all these advantages.

But if any doubt should still remain with regard to the
construction of the books of these two eminent judges in the
law, (as 1 hope there does not,) I shall only mentioi^ one case
more on this subject, which is that of the Earl of Warwick,
upon his trial by his peers in the House of Lords, for the
murder of Mr. Coote. This trial was on the 28th of March,
1699 ; and though the case is not to be found reported in
any law book, yet it appears at large in a very useful book,
[ 457 ] which I shall mention for no other purpose but to direct to
the finding it in the journal of the House of Lords, and they
will be allowed to be of the greatest authority ; I mean the
Collection of State Trials, vol. 5. 167. in the trial of the
Earl of Warwick, where the arguments of the counsel and
the resolutions of the judges are related at large.

Upon that trial a question arose touching the competency
of a witness, who was called on the behalf of the Earl of

De Term. 8. Michaelis, 1736. 467

JTofwick; it was one Frenchy who had been convicted of Rex
manslaughter, and allowed his clergy, but had not been _ ^*
burnt in the hand. It appeared however in the case, that the instance of a
King had an intention to pardon the burning in the hand, a very aoiemn
privy seal having been granted for that purpose ; but it not that one con-
havmg passed the great seal, the King's pardon was out of JJ^^^^
the case ; and the only question was, (and which resolves our allowed his .
present question) whether one convicted of manslaughter, burnt in the
and who had been allowed the benefit of clergy, but had not hand, nor pap-

. , . 1 , t J -x ^ doncd M to

been burnt m the hand, was a good witness t the burning,

The then Attorney and Solicitor-General (a) contended, "^^l^^
that he ought not to be admitted as a witness, in regard he credit,
stood convicted of felony, whereby his credit was tainted, muTreTor'
and that credit could not be restored, unless he had been ;°^ ?*' ^^^^

Hawlet*

burnt in the hand, which would then h$ive amounted to a
statute pardon by 18 J5/tx., or unless the witness had been
pardoned the burning in the hand.

On the other hand the lords heard Sir Thomas Powis as
of counsel with the noble lord, the prisoner then at the bar ;
and it appears, that in the arguments on both sides, the case [ 458 ]
of Searle and fFilliams, from the Lord Hobari*s report, and
also the Lord Hale's Pleas of the Croum^ were cited with
the greatest advantage. It was strongly urged on behalf of
the prisoner, that the allowance of clergy alone restored the
party produced for a witness to his credit, and to all his ca*
pacities ; and it was a plausible argument made use of by
Sir Thomas Powis, that, after the party convicted of man-
slaughter had been allowed his clergy, it was a very unrea«
sonable objection against him as a witness, that he had not
that mark of infamy impressed upon his hand ; and to say
he could not be a witness in a court of justice, because he
had not been branded as a felon.

After hearing counsel on both sides, the lords jdesired the
opinion of the judges, that were then attending on that
solemn occasion; and the Lord Chief Justice TVe&y, with
his usual clearness and accuracy, delivered his opinion against
the admitting this witness, declaring, that a person con-
victed of felony is tainted as to his credit, and cannot be
restored thereto, or admitted as a witness, until he is par-
doned : that it is true, the 11th of JESliz. does operate as a
statute pardon ; but the words of that act being, that the
offender, after the allowance of his clergy, and burning in
the hand, shall be enlarged out of prison, these words make

VOL. III. 2 B

438 D9 Term. Sj MichaeH9, 173^.

ftux two tilings previouriy requisite to t^e pardon^ (viz.) ftc al-

B^* IdWance oi clergy, and tmhiing in the hahd ^ both which are

therefore conditions precedent : so thaft the person produced
a& a witness for the Lord W^arwick^ though he had been
allotired liis clergy ; yet, ncrt; liaving been burnt in the hand,
nor pardoned the burning, he remained convicted of felony,
and consequently no good witness : with that opiinoh the
f 459 ] rest of the judges then present concurring, the person offered
to be produced as a witness for the Earl of Wartrick ite
disallowed, and he gave no evidence.

Havmg produced this great authority, I nec^ not insist
that burning in the hand is part of the punishment ; but may
i^m hence infer, that ih the case of a layman, (he burning
iti the band, or the pardon of that btiming, is one of the con-
ditions required by the Idth of JB/ts. before that ad can
operate as a pardon ; and I think 1 may fi'om hence also con-
clude, that it is now a settled point, settled in the highest
court of justice, that, althotigh the offender has had the
allowance of his clergy, yet if he has not been burnt in fte
hand, and by that means tindergone the punishment pre-
scribe by that statute, he is ndt errtitled to the patrdon given
thereby, but continues a felon.
In what cMes This Icalds me to the stattite of 4 Oeo. 1. cap. 11. which
4 Geo. 1. c. 11. enacts, ** (a) that where any person shall be convicted of any
burafn^hTthe ^' ®^^^® within the benefit of clergy, it shall be lawfiil for
band, snbsti- ''the couft before whom such person is convicted, or any

j^^tt"n for ^ ^^^ ^^^ ^^^ ^ ^^ ^^^ P^^ce with the Kke authority,
w^jnyea". *' if they think fit, instead of ordering the dffendcr to be
latter it to be " bumt in the band or whipt, to order him to be sent to his
wajTf^ndS^ " Majesty's plantations in America for the space of seven
tion precedent *' years, and to transfer und make over such offender by order
pardoi^ kJiikc ^^ ^^ ***® court, to the usc of such persons or their assigns,
manner as the ^f ^o shall coiltract for the performance of such transporta-

former was by ,- ^, .- - ^ _ _ , -

iSEiix. •*tion,'for such term of seven years; and when such of-

Sect! 2 ^ ftnders shall be tnftisported, and shall have (i) served their
*' respective times for whieh they -shall be transported,
^' (which in the present case is for seven years) such ser-
*' vice shall have the effisdt of a pardon to all intents and
^' pui^oses, as for that crime for which such olftnders shall
[ 460 ] *^ he transported, and shall have so served as afonesaid."

So that, by the express words of the statote, tins trans-
portatio'n is to be instead of burning in the hand ,• and as by
fhte l8th of Mt. the oifltender, though he be allowed Ws

Be Term. S. Mickaelis, 1735. 460

deigy, y«t is not entitled to the benefit of tbe statute Rex
fardon, until lie has undergooe the punidiment of burning ^ ^*
in the hand^ which is the punishment prescribed by that
statute.; so the punxahment ol transportation^ which is in
lieu of burning in the hand^ where the judge who tries the
ofiender thinks fit to order it, must also be undeigone before
the ofifender can be entitled to the benefit of the statute par-
don in the present case. Or, as in the one case on the 18th
of £/js. the offender's suflfering the punishment of burning
in the hand is made a condition precedent to that statute
pardon ; in like manner, upon this act of 4 Geo. 1 . the of-
fender's having undergone the punishment of tcan^Knrtation
must also precede the pardon given thereby.

To this however it has been objected^ that the words in
the statute of 4 Oeo. 1. are only in the affirmative, without
being followed by any negative words.

Mesp\ But surely this is such an affirmative, as plainly
in^plies a negative. An aot of parliament, in saying an
offender shall be pardoned, or shall have the benefit of his
pardon, from and after such a time, must necessarily be in-
tended to mean, that the offender shall not have his pardon
until that time. I take the rule to be, that wherever an act
of parliament is introductory of a new law, (as this of 4 Geo.
1. plainly is, in introducing a punishment hardly known be*^
fore among us, that of transportation,) words in the affirma-
tive imply a negative, which may be nuule appear by innu- [ 461 1
merable instances. But as this is a large .fiel4, and m'^ht
seem tedious, I shall mention but one.

The statute of 27 ^- 8. of uses enacts, that the cestuy que in acts of Par-
n»e shall have thie same estate in the land, as be had before dadngVneT
in the use. Soon after the making of which statute, this l^w, words
case happened, and is reported in Plotvdenj 111, Amy impiyanega-
Toumshentfs case, and 1 Inst. 348. b. tenant in tail made a ^'^^*
.feoffment in fee to the use of his eldest son, then an infant,
and his heirs, and died; whereupon the right of the entail
descended to the infant son, who was the cestuy que use;
yet the infant son was held not to be remitted, though no
folly could be imputed to the son, when he accepted the
feoffinent, he being then an infant, and though a remitter be
a thing favoured in law, as it is a restitutbn of an pld right :
.but tbe reason it seems was, because the statute says, the
.possessim shall be executed in such manner, plight, and

2b2

461 ' De term. S. MichaeUs, 1733.

Rex fcTtn^ as the use was before limited {a); and though these
^' words be only in the affirmative, they necessarily (&) im^y

a negatiye. See Hob. 298.
Etpecially to Further : If in any case such affirmative words in an act of
»^w.* P»Wic parliament oiight to receive that construction ; here we have
{a) The feoff- the very case^ in order to prevent a great and manifest in-
tibe'ui^t^ convenience which would otherwise happen. It would be a
by parchaae : very great inconvenience, should there be a chasm, or interval
remiucd.^e'* °^ time, in which one convicted of a felony, for which he fa
would be in by ordered to be transported, mis^ht be aided or assisted by an-

descent. ^i_^ *..^ 11 »

(ft) Vide ante Other to escape out of prison without such other person s
Bi^k^^*' •• incurring the guilt of felony : but if Palmer ♦should, in the
[ *46d ] principal case, be construed to have the benefit of the sta-
tute pardon before he is transported, merely by being allowed
his clergy; then from the time of such allowance, and before
Kis transportation, he would become no felon, and conse-
quently it would be no felony in the gaoler, or any third
, person, to suffer or assist him to escape ; which would be a

great inconvenience arising from the construction of a statute
against the express words and apparent intention thereof.

But suppose, for argument's sake, this statute of 4 Geo. I.
would bear two constructions : if by one of these a public
inconvenience would arise, and, on the contrary, the other
interpretation would be productive of no inconvenience at
all, there could surely be no doubt which of these two ought
to take place. Besides, construing this statute in the sense
which the other side contend for, namely, by making it
amount to a pardon, either from the time of the allowance of
clergy, or of pronouncing the sentence of transportation,
would render useless the whole clause, which enacts, that
after the offender has been transported, and shall have served
beyond sea for so long a time as the sentence orders, (which
in our case is for seven years ;) such transportation and ser-
vice shall entitle the offender to a pardon : aH which clause
must be rejected, and of no manner of signification, if the
words are to operate as a pardon, before the transportation
and seven years' service, which would be for the expositors
of the law to strike a clause out of the statute book, at the
same time that an useful construction may be made of it To
this I may add, that if Palmer is to be deemed pardoned be-
fore such time as he is actually transported, how can he be
afterwards transported ? How can a man be punished for a

De Term. S. Michaelis, 1735. 463

crime, which before the punishment was pardoned ? What Rex
can be more absurd than to say, an offender is first to be ^'

pardoned, and afterwards pimished ?

There is indeed a subsequent statute of 6 Geo. 1. cap. 23. Principal ease
sect. 6. making it felony without benefit of clergy to rescue g^^. ^n-
an offender condemned to be transported, out of the hands of f «nuDg reacii-

iiur fieloDs con*

those who had contracted to transport him. The occasion of demned to
which clause was probably to obviate a doubt, which other- Jj^^h?^"***
wise might have arisen, whether the custody of the con- hands of the
tractor was a lawful prison, and within the statute de fran^ contrwtoii.
geniibus prisonam ; or it might have been added, the more
effSsctually to deter all persons from attempting a rescue, by
subjecting those who should make such rescue, to the guilt
of felony without benefit of clergy, even though the crime for
which the person rescued was in custody was within benefit
of clergy. But the matter now in question is in no sort
dependent upon, or relative to that clause; there having
been no contract ever made with any person for transporting
of Burridge the prisoner at the bar.

Wherefore, as this statute of 4 Geo. 1., empowering the
Judges to order transportation for seven years in all cases of
felonies within the benefit of clergy, places transportation in
the stead of burning in the hand ; as the offender's undergo-
ing the punishment of burning was a condition precedent to
the statute pardon ; as this construction is agreeable to tiie
express words, to tiie plain intent and meaning of the act,
and would prevent that mischief, which would otherwise
ensue, were there to be an interval of time wherein one
might, ^tb a kind of impunity, assist or voluntarily suffer to
escape a prisoner condemned to be transported for felony :
for these reasons, I take it. Palmer, though his crime was
within the benefit of clergy, yet he being to be transported
for seven years was, and still continued a felon ; and being [ 464 ]
such, it was felony in Burridge, the prisoner at the bar, to
avsist him to escape ; and that it cannot be material^ whether ^
there was any contract, or not, for the transportation of Pal-
fner, it being felony at common law to assist a felon to escape.

And- this being the only doubt which stuck with the court
at the trial of the prisoner at the bar, if that doubt be at
length resolved, (which I have here, endeavoured to do) I
hope the court will. now pronounce that sentence of trans-
portation against the prisoner, which would have been donq
at the trial, had this doubt been out of the case.

4«* De Term. S. MichaeUs, 1736.

Rex Bat^ it is true, the ingenuity of the cfmnsel for the pri-

g ^' doner has started other oBfections, some to the form of the

indictment, as being insufficient; and some to the specit)

verdict, as being imperfect : to which I shall endeaYOor to

give an answer.

The omission jhe first exception to th^ indietifient waa, that the fact is

of vi ct Hrmn _ , i % m • .

in iodictments not charged to have been done vt ei anms.

matter oT ^^^ ^ inserting these words in indictments is only matter

form, cured by of form J SO now, by the statute ot3JIt,8. cap. 8., the omis-

qiuei^. 8ion of them la helped.

The next objection was, that it does not appear by the
special verdict, that when Burridgey the prisoner at the bnr,
assisted Palmer to escape out of prison. Palmer was then in
custody for felony.

But this seems to be sufficiently evident : the jury find,
that Palmer was indicted before the justices of peaice of the
county of Somerset for feloniously stealing an ewe sheep;
[ 465 ] that Joint Procter y the then sheriff of that county in whose
custody this Palmer is shewn to have then been, et causa
prcedieta, (that is, for the said felony,) brought the prisraier
to the bar bdTore the said justices to be tried; that he
pleaded not guilty; that he was foKind guilty; that he
prayed the benefit of the statute in that case made and pro*
vided; that thereupon the justicea pronounced upon him
sentence of transportation for seven years ; that in conse-
quence thereof the justices committed Palmer to the custody
of Edward Cheney y the then keeper of Ivelchester gaol, in
the said county ; that the said Edward Cheney the keeper of
the said gaol died ; that this Palmer remsuned iu custody of
the said John Procter y the then sheriff of the said county \
and that Burridge (the prisoner at the bar being then a pri-
soner in the said gaol, and in custody of the said sherifi^,) did
wilfully aid and assist the said Palmer, so being in custody
as aforesaid, to escape out of prison.

Now these words, thtU Burridge, the prisoner at the far,
did assist Painter, so being in custody as a/oresaidy must ne-
cessarily be intended, so being in custody for felony as afoie*
said ; for it does appear by the verdict, that he tras be-
fore in custody for felony ; and on the other hand it does mi
appear, that he was ever in custody ; and the court will not
(indeed it cannot well) intend, that this Palmer was in
custody for any other cause than that mentioned in Uie spe*
cial verdict.

Another objeetion wa3> that it !» aot fomA by the specia) Rci^
reidict that Burridgey the prkiQivsr at the b^r, knew fFillitm ^ ^*
Putmer was committed for felonjr, or hsvl been convicted of *'^*^'***'
fekuy^ at the time when he assisted Paim^ to escape^

To which it may be answered, that a^ PaHmfir had been L ^^^ J
conricted of feh>ny, at the quarter-sessiona of tbe peace heW j^re^"o" tUw-
for the same county of Somerset^ all of that comity ^re pr^^ ed for felony,
sumed to have notice of it ; otherwise, bad the conviction Banuf conoty»
been in another county ; and it is the stronger in this case^ ^^^^ °^^ ^
for tliat Palmer and Burridge were in the same prison. cessary to the

In HaWs Pleas of ike Crown, 318^ it is sai4, that if one is Icluriloace'
tried and attainted of felony in the county of A.^ the law pre* of sbch out-
sumes notice thereof in the same county : wherefore, if anor ^^^'
ther person receives and harbours him in the said county,
this makes the receiver accessary; ^ecus, if the attainder
were in another county. And Stan\fordf 41. £• puts the case
further ; if one be outlawed for felony in the county of A.
(which is less notorious than a conviction upon a trial) and
attainted thereon, if any person receives and harbours him^
this makes the receiver accessary to the felony, upon a pre-
sumption that all people in the same county are privy to
what is done in their own county, and to a matter of record
there ; but that otherwise it is of an outlawry in another
county, though a matter of record,

I must admit, that the words of the Lord Itale^ just after
mentioning the same case, {page 218.) shew his own opinioi^
to be contrary ; for his expression is, videtur cognitio requu
dia in utroque casu, whether the outlawry be in the same
or in another county [B] ; and indeed this so far lessens [ 467 }
the authority of these cases, that I would not rest this point
here.

But what I insist upon is, that Burridge^ the prisoner at wbereone it
the bar, was doinir an unlawful act, when he assisted the ennnd in an

T^. , . . 1 «^- t • i- . nnlawfm act,

Kmg 8 prisoner m. the King s prison to escape out of it, he must abide
whereby the course of justice was obstructed; and that fo/*|j?the^*'

coniequences of i^uch act, though they could not be foreseen. But it seeq^s this will not
extend to inyolre a man in felony, unless there were origii^ally some felonious intent.

[B] In the Lord Hale^s History of the Pleas of the Crown, published by
Emlyn^ vol. 1. 323. his Lordship is very particular in expressing his dislike of
the opinion in Stamford; and observes, that it oftentimes lies as little in the
way of many persons to know who are eonficted or attainted of felony orr
treason, as whether a man be guilty of it. And again, page 6^2, it seems neces-
sary to make an accessary after, that there be notice, although the felon were
attaint in the same county ;'for presumption shall not make men criminal, wbt^jn^
the punishment is capitaL See also the Lord Hardwicke^s argoraent, |mt%

467

De Term. 8. Miekadis, 1735.

[ 468 J

Rex , being engaged in such unlawful act, he must abide by, and
— *** be answerable for all the consequences; and if a prisoner

committed for felony escapes out of prison, by means of that
unlawful assistance ; this is felony in the person assisting.
Neither will it be material that the person assisting the
escape did not know that the prisoner who escaped by means
of his assistance was in custody for felony, for it is all at
the peril of him \dio engages in such unlawful act.

In the several cases where an undesigned death of a man
ensues upon a person's doing any act, the difference is, if
the act which the man was doing, and in consequence of
which the death happens, be a lawful act, then the crime is
only chancemedly, or a death per infortunium : but if the
act be unlawful, this is manslaughter or murder. Hak*s PL
Co. 31 . And there this further distinction is taken : Suppose
I am doing an unlawful act, if it be with a felonious intent,
and dedth ensues; then it is murder: whereas if I do an
unlawful act without a felonious intent, and death follows
upon it, in such case it is but manslaughter. 3 Inst 56.

In Hale*s PL Co. 56. A. throws a stone at B. which
glances and kills C, this is only manslaughter, by reason
there was no malicious or felomous intent : but still, says the
book, it is not a death per infortunium, in regard ji. was
doing an unlawful act in flinging a stone at another man.
The like difference is in Key 1. 1 17* in 3 Inst. 56. If ^., in-
tending to steal a deer in the park of J?., shoots at a deer,
and by a glance of an arrow kills a boy that lay hid in a
bush ; though A. who shot at the deer knew nothing of the
boy's lying in the bush, yet this is murder. And in the same
book it is said by the Lord Coke, if a man shoots at a cock
or a hen in another man's yard, and by mischance kills a
man, this is murder, because the act was unlawful.

There is indeed a remark made on this last case, in that of
the King and Plummer, in Key I. Rep. 116. where the Lord
Chief Justice Holt says, that to make it murder where one
shooting at an hen in another's yard, kills a man, there
must be a felonious intent to steal the hen (a) ; else, accord-
ing to the Lord Holt, the case is not maintainable, nor war-
ihetti^ of' "* ^suited by the books cited in the margin. However, so fer
Coke and will be admitted (which is all I contend for) that if J. shoots
diaAgasing ^' ^^^^^ ^^^ ^^ another man's yard, (which must be an unlawful
^^•^g^ act, as it is against law to destroy another's property,) if

State 'MUa^ vol. 6. 222.

(a) See thie
Mine distine-
tion taken hf

De Term. S. MkhaeUs, 1735. 468

death ensues thereupon, it is [at least] manslaughter. To Rsx
apply then these authorities to the present case :— *- ^'

It was an unlawful act in Burridge, the prisoner at the r ^^g n
bar^ to assist his fellow-prisoner Palmer to escape out of
prison^ as it would be in the cases I have cited, to fling a
stone at another, or to shoot at a deer in another's park, or
at an hen in another's yard ; and as in all these cases the
killing of a person, though undesignedly, yet being in con-
sequence of unlawful acts which the parties were doing,
would make the same felony or manslaughter, (and this not-
withstanding he that shot at the deer or hen should know
nothing of the boy's lying in the bush, or of the man's being
in the way :) so, in the principal case, the escape of Palmer
out of prison who was in custody for felony, being the con-
sequence of Burridge's unlawful assistance, makes it felony
in BurridgCy even though it should be supposed that he
[Burridge] did not know his fellow-prisoner Palmer, whom
he assisted to escape, was in custody for felony.

I would only mention one case more upon this head,
which seems admost in point, and as great an authority as
can well be produced, being at an assembly of all the Judges
of England, and containing the resolution of ten of the
Judges seriatim. I mean BensteiuFs case in Cro, Car, 583.
{16 Car. 1.) which case was many years afterwards cited
and allowed to be law, at an assembly also of all the then
Judges of England, except the Chief Justice of the Common
Pleas, that jplace being at that time vacant by the promotion
of the Lord Chief Justice Bridgman, to be Keeper of the
Great Seal ; this is in KeyL 77* Limerick's case, where the
opinion of the Judges was in these words : — '^ that the break- Breaklnff of «
" ing of a prison wherein traitors are in durance, and causing prij^wrein
'^ them to escape, is treason, * though the parties did not dunuice, and
" know that any traitors were there. Also to break a prison S "wlfpc'ir
" whereby felons escape, this is felony, though the prison- treason,
'^breaker doth not know them to be in prison for such paniesdidnoc
^* oflfence." »"®'' »°y *n^-

1 • • « • « 1 tort were

it IS true, m this case, thus solemnly resolved, there was a there,
breaking of a prison supposed, which is not in the principal [ *470 ]
case. But that makes no difference with regard to this ob-
jection of the scienth", whether the party assisting, &c. knew
that the prisoner whom he assisted was in custody for felony,
or not. It might have been the fiict on which that resolution
in BensteaSs case is grounded, (and it does not appear that

400 B€ Tern. a. mha^Hf, 1735^

Rkx the breakers ei tke priaoa kinew tl^ ewtrary) that al tbf
^ time when the pvison was brokQ, there might i^ no priscmen

there but for debt ; and if acr» tb^ breaking of th^ pi^son M
neither been treaaoR nor fekmy by reaaen of the statute d$
/rwigeniibus ptisonam, 1 Ed% 2. sM. 2, Nevertheless,
though the breakera of the priaon might really know nothiag
of any trattora or fekvia being then in privon, yet thi$, ac-
cording to that Holemn determiiiaAion, waa no excuae to
them, aof prevented their incurring the crime of felony,
where by that means felona eac^ped^ nor even of the crime
of treason^ where traitora thus escaped.

And if thia be so^ by th^ aame reason the ignorance of
Bunidgef the prisoner at the b<tr, that his fellow-prisoner
Pdbmer was in cuatody for felony, can be no excuse to him;
for in each of these caaes^ it aeems, the offenders were domg
an unlawful act ; and they must abide by aU the consequences
of it^ even consequences that rendered them guilty of the
highest crimen and subjected them to the greatest punish*
ment known to our law, that for high treason.
[ 471 ] And now I come to the last objecticdQ, which (as I observed)

seemed to stick with the court, namely, that Burridgty the
pris€mer at the bar, is not indicted for breaking the prison,
nor for rescuing his fellow-prisoner Palmes but for assist-
ing him to escape, which is said to be no more, than being
accessary after the fact to the felony of sheep-stealing, which
Palmer was convicted of; and If so, the indictment is, said
to be wrong; for that Burridge ought to be indicted as ac-
cessary after the fact to Palmer*s felony, and not as a prin-
cipal felon.

But I apprehend, ^«^, that Burridge, in assisting Palmer^
who was in custody for felony to escape, was himself guilty
of felony, as a principal, and not an accessary only. In the
next place, supposing that point to be against me, and that
Burridge be no more than an accessary after the fact, for
having assisted Palmer, in custody for felony, to escape out
of prison ; yet still, I think, the indictment is good, in re-
gard Burridge is indicted for aiding and assisting his fellow-
prisoner Palmer, then convicted of felony, to escape out of
prison ; and if such aiding and assisting does make Burridge
accessary, then he is indicted as such, and there is no need
of mentioning the word accessary in the indictment.

First, I take it, that Burridge' s assisting Palmer, then in
custody for felony, to escape out of prison, was felony in

JBufTM^, who thinreby 1mi»xm a priiuapd wdnotan Kkx

accessary cmly ; and tbai th;i actsistUig cf « felaa to escape ^*

onit of priaoQ wheii in the baads of justice and in custody of ^^^^^^^
the law, is (aa I inaf <ftU it) a ^bst^Miive felooy.

In 27iM^ 569. H 19 said> that all prisow are the King's [ 473 ]
prisons ; and though divers lerda of liberties and others may
have the custody thereof, yet still they are the King's prisons,
and as they are for the public good, absolutely necessary in
order to keep malefactXMnl bft safe custody i&ntil their trial,
amd if coiiTicted, until they receive their punishment ; there-^
fere it is said, inieresi ftifubli€€B qu9d emreeres sint in iuio.
Where a man for any capital offifence is covnnitted to prison^
he is presumed to be in mlvd as well aa arei4 cuaiotHd; and
it is upon this preamnptioii of his beings safe in custody, that
his friends are permitted by hsw to comfort hina, and to sup^
ply him wiA money, &c. when in prisoti. But to do ibia
before imprisonment is ao far unlawful, as to render even hia
nearest relations (his wife only excepted) accessary after the
fect.in case of felooy, and pcbdpals in, ease of treason where
there are no accessaries. So great regard has been shewn OriginaUy and
for the safety of these prisons, that originally and at comaion ul^^braoHnff
law, if a prisoner bndce prison, though he was imprisoned prison, thuuj^b
only for a debt or trespass, and not for felony, yet it was 8Jned^oni7"or
felony for such prisimer to break prison. Puli. de Pace • ^^^^ **^ ^•"
347. b. 2 Itut. ulri supra. {^': bot Uiis

I must admit that the statute Dc frangentOms prismmn, ttij^iututcof
taken notice of above, alters the law in that respect, by pro- l Bd. 2. Bt. 3.
riding that a prisoner who breaks prison shall not incur the
guilt of felony, unless he be committed for felony; and in
Bttch case his breaking prison is by that statute declared to
be felony. There indeed, the prisoner breaking prison,
though never convicted of. the crime for which he was com-
mitted, yet may be tried for the felony in breaking the pri-
son, the very breaking of the prison of itself amounting to
felony. Wherein, by the way, it is observable, that by the
letter of this statute^ only the prisoner breaking prison is r ^^3 j
mentioned; and yet, the better to obviate the mischief in-
tended to be remedied, the act, though a penal one, is by
an equitable construction el^tended to a stranger breaking
the prison ; and therefore in Puli. de Pace, 147. b. PL 2, it
is said, if a stranger breaks prison where one is committed
for felony, this is fdcmy ; for at common law it was as much
a felony in a third persoii to break prison, aa in'the prisoner

473 De Term. 8. Mickaelis, 1735.

Rex himBelf ; and if a stranger breaks the prison in order to help
^ ^' a.prisoner committed for felony to escape^ who does escape

If sin accordingly, this is felony, not only in the stranger that

breaks pHK>ii» broke the prison, but also in the prisoner that esa^ by
i^n^JJSS^ means of this breach, as he consents to the breach of the
mitted for fe- prison by taking advantage of it.

lony etcapety

It is feUouy, oot only in the stranger but in tbe prisoner also.

I admit indeed that in the principal case here is no breach
of prison ; but still, the assisting of the prisoner to eso^
out of prison, by what means soever it is effected, is alike
mischievous, and an equal obstruction to the course of jus-
tice : nevertheless, forasmuch as the law in the case of a
breach of a prison, depends upon the words of the act ie
frangentibus puisanamj I would choose to resemble the pre-
sent case of assisting a felon to escf^e out of prison to that
of rescuing a felon, both these being offiences at common
law.

The Lord HdUj PL Cor. 116, says, that to rescue a per-
son under an arrest for felony, is felony ; and, that in like
manner, the rescuing a person under an arrest for treaaon,
is treason : and if this be so, d pari, or rather d foriioriy to
assist a man that is in prison for felony to escape out of pri-
son is felony ; and to assist one imprisoned for treason to
[ 474 ] escape, must be treason. The law says that the person as-
sisting one in prison for felony to escape, contracts the same
guilt upon himself as the prisoner that was assisted to escape
out of prison was committed for ; so that, to deter all per-
sons from being any way instrumental in the escapes of these
capital offenders, with a great exactness of justice, the law
communicates the crime of the offender to the person assist-
ing him to escape.

Now I conceive that this assisting of a felon to esci^ out

of prison renders the assistant a principal felon, and not an

Rescuing a accessdry only to the felon escaping. In Stamford PL Cor.

te°f^*** 43 b. and Pulton de Pace, 144. PL 20. there is this case,

makes the res- which seems material to the principal one : if one does rescue

cuer a pnnci- • .1

pal felon, not & nian arrested or committed for felony, he is a principal
an^accessaiy felon, and not an accessary only j and (according to tbeac
authors) the reason is, for that this is a new felony of itself,
^ though depending on the former.

It seems plain, that where the Ixird Hahy in PL Cor. 116.
says that the rescuing a felon under an arrest for felony is

De Term. & Mtckadis, 17S5. 474

felony, by the words under an arrest is meant a prison i Rex '
for every arrest is an imprisonment; Hale PL Cor. 107* ^ ^'
And if the rescue of a. felon when in prison makes the
rescuer a principal felon^ and guilty of a firesh and distinct
felony ; then by the same reason a person assisting one in
custody for felony to escape out of prison is himself a prin-
cipal ^stinct felon, and not an accessary only.

Besides, in this case Burridge, the prisoner at the bar, is
so far from being an accessary, that he himself is capable of
having an accessary : as if ^. had hired Burridge to assist
Palmery then in custody for felony, to escape out of prison,
and accordingly Burridge had assisted him for that purpose ;
then ^. would have been the accessary in hiring Burridge
to assist Palmer the felon to escape, and Burridge the pri- [ 475 ]
soner, by whose assistance Palmer had escaped, would have
been the principal : but if Burridge were in this case but an
accessary himself, as is contended on the other side, (which •
must be meant of an accessary after the fact, for it cannot
be pretended that he is an accessary before the fact,) I say,
if Burridge himself he but an accessary, then he cannot have
an accessary, for there cannot be an accessary to an access-
sary after the fact. \

But here I am sensible it may be objected that there may
be an accessary to an accessary in the case of a felony ; and
80 is Hale, PL Cor. 219. Stamford, 43 b. Pult. 144.
PL 19.

To which I answer, that must be with this diffisrence : that ^*" "•! ^
there may be an accessary to an accessary be/ore the fact, to an accei-
but there cannot be an accessary to an accessary after the JJJ^ butmrt*
fact ; and this is the distinction taken in Jenk. Cent' 29. cap. to an accci-
56.; as for instance, if ^. advise and procure B. to murder C, ^^
A, by this is accessary before the fact; and though but ac-
cessary, yet if D. receives and conceals him from justice,
D. hereby becomes an accessary, though only to an acces-
sary.

To carry this case a little further : suppose B. that com-
nutted the murder is afterwards received and concealed from
justice by Jl S., who thereby becomes accessary after the
fact, and then J. N. receives and conceals from justice this
J. S., the accessary ; this would not make J. N. the re-
ceiver oi the accessary after the fact, . to be himself an acces-
sary : the reason of which is, for that the crime of the acces- An acceuarr

before the fict
I^Htj of a much greater crime thati an ttcceteary after the &ct.

4196 Be Term. & MidiaeUB, inS.

^^'^^ MTf %^foHre ttie 6u^ is audi geeiiter and 4if ft deeper dye tiun

BittmiMm *** ** the 4BccwMwry after tiie &ot, the accessary befon the

r A7A 1 * ^^ '^ ^ ^^ murder or •ther felony) advises and inches

^ -^ the 'Otber fMMm to comnit the ciime; andJieinglhefint

waver, is Sa a great measiue giiilty hfanself tbereoC; wfaems

4ie accessary a^er the fact may be, and often is, perfecdj

innocent of the dime, knows iiottong of it untH committed ;

only, after U is over receives the person lliat did the fact;

4n wfaioh case common compassion, good-natnre, and hs-

4nafidty, mi^y be, in some meaauce, advocates for sadi an

4rffender, so as to mitigate his crime.

fist what can be said in favour of tlie accessary before fte

fact, who in oool blood advises and sets on another to oom-

Mtoi^cSi! «it murder or other fclony? The act of parliament (a) with

ries before the -gvoat jostice takes away clergy from the accessary befoie the

iKuonf rX ^'^ ^^^ ^^^ 11^ '^ke it arway from the accessary after tke

bcry in any jfa^t.

dwelling-

house, or in ornesr the Mghimy, tir the borninff any dwelling^houae, or ban hariaf con in

it. See4&5Pb.&M. <bsp.4..«..l.

Again, — Aa Btanidge, the peisoner at She bar, was in the

4Brae;hoa8e, and feUow-prisoner with Ptdmer, and is found

by the verdict actually to have assisted Pohner in his escape

tmt of prison, Mufridge must be intended to have btoi pre-

issn/rwith falmer^ while he was assis&g him to eso^:

No case where jo^ I. do not know a single. case in the Jaw n^here, if one -be

and assisting present and assisting in the commission of a crime, the per-

^AotoUv^ «m present rihall tbc only an accessary. Cases there are,

is held onlyian .Where Okie wbo is absent at the time of committing the crime

^]2|^^*|^^^ " wiay yet in law be deemed a principal, as in flour's ^ase, 4

whaisabteiit .<2o. 44, 45. HoIe's JPL Cor. 216. 3 ImL 138. One laid

at the limeiM . . , . ^ . • ^t j

committins ipoison With an mtent to poison another .person, and "ffu

beVl^d^ -absent when that other person took the poison, and m»

r ^jj -1 ckiDed ; there the person Isying the poison was princ^sl in

tfie murder : but lam at a loss for an instance, where aoy

one present and assisting was only held accessary to the

ielony« If one be present at the killingof a man, and comes

tkere&r that ^purpose, but does no act, being.only ready to

assist in the lulling, this makes him a principal, Haii^s fl*

Car. 215, 21fi. PuU. 142. a. PL 4. And if being present,

-and only ready to aid, will make one a principal, surely this

case is 'Stronger, where JSurridge was .not only ready to aid,

but actually did aid. and assist.

But suppose for argument's sake, that Burridge was not

De term. ^. MidkatHs, i7SS. 4Tr

a piincipail Mon ; iJhat he %«s no «H)«e ttan an «crcefigar^ 4k> itex
Palfner, t^o was in piison *convidtdl df felony for ^steidiiig «^*'
a sheep ; and that S^turridge wafi uecesflaty to fala:! «fter tbe ^^^^^^
fact, in assistmg liiin to escaipe ^ut of fnMh ; yet utiU 4^
indictment agaim(t BurrU^e is right, «)d weH umjaatiiiied
hy the special verdict : he h indicted for haitri&g'lddeid and
assiM^ed Tdlmery convicted of felony to -escape out fof fti-
son ; and the special verdid; finds this pmt of Kbe &ot to i»e
so"; consequently, if aiding and 'asdiefthig isk H^n to ^escape
out 6i prison does amotfntto tnake OAe^Msoessary) then is
Burridge both indicted and found guilty as sucAi ; and tkeve in an indict-
is not any necessity of inserting iSbe woid aecessam in the ™«ntof one
indictmelit, 'the same being no teomii'eal wora, no term of cessary, no
art, like the urord hurglark^ for tnlrglary, prodiiorik filr T^lhc w^"
treason, or rapuH for aYape : it may wttli 'eqttal ^reasotti /bean- acceuary.
sisted that the word prhttipatia a tedhnioal term, and lli^
where the faCt is that one is principal in a murder or bdiOr
felony, he must be indicted ab a 'principal, as that mite
present case Burridge, the prisoner at the bsr, ougi^ to "he
named or inditMred as accessary ; bat this is not so, neilbelr
are there any precedents to warrant it.

In iVeinaWs PL Co. *S88. thelre ^s an indSdment against [ 478 ]
one Stone for Tcbbing one Plumpfon on thefa^way, aftd
taking Trotn Him 30/.; and the satme tedtctment is against
Edward Ivy, for that the said Ivy, before the. said robbery,'
did incite, abet, and procure the said SUme to commit the
said robbery, and that after tbe said robbery committed^ jand
alter the said Ivy knew thilt the said Stmie had conmiitted
the said robbery, he {Ivy) did fekmioasly receive, entertain,
and comfort him. Stone and Ivy were found guilty upon
this indictment, and were attainted, andafterwards pardoned ;
and though it appears that Ivy, the accessary, brought error
to reverse thisf attainder, and assigned errors ; and though' it
also appears by the indictment and verdict, that Ivy was
accessary both before and after committing the robbety^;
still the word accessary is not so much as once mentioned
in the indictment, nor is this assigned as one of the errors,
as most certainly it would have been, if it bad' been thought
to have been an error. This I take to be as ^strong a pre-
cedent as well can be of this nature.

There is another precedent in the umt 'book, (38) The
King V. Mingrose, where it appears, one ims presoit and
assisted in the fekmy^ whkh in law undcea •« principal; and

478 De Term. S. Mkkadia, 1736.

Rxx yet as in the fonner precedent the word accessary ^ 8o here the
BvERinoE. ^^^ principal, was not mentioned in the indictment. So in
Seijeant Hawkinses PI. Co. 2d Part, 315. it is said, not to
seem necessary in any indictment or appeal against any one
as accessary before the &ct, to set forth the special manner
by which he abetted, &c. but only to charge generally, that
the. prisoner /e/ontce abettavit, inciiavii, et procuratrit, S^c.
agreeably to which, and in the like general words, it is said
in our indictment, that the prisoner at the bar fehnice did
[ 479 ] aid and assist Palmer who was convicted of felony to escape
out of prison.

From whence I would infer, that if it were admitted, that
in this case Burridge, the prisoner at the bar, were no more
than an accessary after the faj;t to Palmer, by having as-
sisted him to escape out of prison when in custody for
felony ; yet the indictment is good ; and that it is sufEicient
for it to charge the fact; and if aiding and assisting a fe-
lon to escape out of prison makes one an accessary, then
Burridge is indicted and convicted as such, and there
is no need of mentioning the word accessaryia the indict-
ment.

There is only one thing more remains, which, though it
does not now immediately, and directly relate to the case,
yet since it may in the event happen to have reference
thereto, should the other side prevail in bringing off the pri-
soner, by reason of any insufficiency in this indictment; and
as the court was pleased to stir this point, and to mention
it to the bar, with an intention (I presume) that it should
be spoke to, I shall therefore endeavour to do so in a very
few words.

The point is this ; suppose for argument's sake, that this
indictment of Burridge, the prisoner at the bar, is in any
respect insufficient, that he ought tp have been indicted
as accessary after the fact, and by the word accessary; or,
to have been indicted for a rescous, instead of aiding and
abetting: suppose, (1 say) that for « this or any other in
sufficiency in the indictment, Burridge should have the
opinion of the court in his favour, what would the conse-
quence of it be?
And I take it to be very plain, to be a settled point of
[ 480 J ]^^^ f^^i ^]|Q prisoner would be liable to be indicted and
tried over again; and then probably the like evidence
whereon he was convicted before will convict him again :

De Term. 8. mchaeUs, 1735. 480

*•

for thougli the rnle be, thai a man^s Kfe ahall not be put in Rax
jeopardy twice for the same crime, yet thii* holds, and is ^P* n ^*
plicable only^ where the indictment upon which the prisoner
is toed is a sujkieni indictment; for admitting that to be Whererer one

, -t ^ escapes by

losofirient, or to contain any mistake, by reason whereof means of an
tfcc prisoner escapes, in such cases aU the books agree, the JJJjJ^^^Jj"'
prisoner is not legitimo nwdo ticquieiaius ; and then, in the his life was
eye of the law, his life was not in jeopardy. The court ex f^^X^""
qficio ought, for the benefit of the prisoner, to take notice ^ M^^^^^^^
of the mistake ; and therefore in these cases the prisoner
may be again indicted, though for the same offence. Many
cases pro^e this: but Fimx*s case, mentioned before, is
very fidi and express to the purpose. It was thus : Fixux
was indicted for murdering one Richard Ridley by poison-
iog him> persuading him to take a certidn drink mixed with
a poison called eantharides, in order to make him have a
chfld by his wife. The jury found a special verdict, (viz.)
that Ridley was poisoned by this poison; but that Vaux, the
party indicted for this murder, was not present when Ridley
took the poison. But it appeared to the court, that the in-
dictment was insnfficienl, it not being alleged with sufficient
certainty, that the party murdered took the poison, there-
fore the court gave judgment for Vaux the party indicted,
quod eat rine die.

Whereupon Vaux was indicted a second time for the
same murder and the poisoning of this Ridley ^ to which he
pleaded, that he was auter/oits indicted, tried and acquitted
of this murder, and pleaded over not guilty to the murder.
Bat it being evident, that the former indictment was de-
fective, in not having chained with sufficient certainty, that
Ridley, the person poisoned, did receive and drink this [ 481 ]
poison ; the court determined, that Faux might again be in-
dicted for the same fact for the reasons above mentioned;
and upon this new indictmentfTiu^ was agsdn tried, convicted,
and actually hanged. So that according to this express re-
solution, if the indictment agiunst Burridge be insufficient
(as I hope it is not) he may be indicted over again for the
same oflfence ; and if it were so that he ought not to be
indicted as a principal felon, but as an accessary only ; even
in that case it is determined in Keyl. Rep. 26. that if a man
be in^cted as a principal felon and acquitted, still he may be
indicted again as accessary after the fact, but cannot be in-
Acted as accessary before the fact, becauae with regard to

VOL, III, 2 c

481

Be Term. S. MUhaelU, 1735.

Rxz

BUERJDOE.

1482]

Resolution of
th« court.

an accessary before the fact, who advises and procares the
doing of it ; this is as his fact : but in the principal case, it
is plain that Burridge was not accessary before tiie fact tcr
Palmer^s felony in stealing the sheep, but only accessary
after the fact. It is equally plain, that if this indictment
ought to have been against Burridge for a rescue, and if he
should evade, for that reason, the present prosecution, (for
which there seems no colour) still he would be liable to be
indicted anew for that rescue, it being a different offence
from what is charged in this indictment, and consequently
not pleadable in bar. From all which it must be evident,
how little it will avail Burridge to get off upon an insuf-
ficiency in this indictment, seeing he plainly will neverthe-
less be liable to be indicted over again.

To sum up all in a word or two : I hope it now appears,
that Palmer, when he was assisted by Burridge to escape
out of prison, (the said Palmer being under sentenl^eof
transportation for seven years) was then a felon, and con-
tinued such until his transportation and service for seven
years ; that there are no words in the 4 Geo. L, or any other
statute, entitling Palmer to a statute pardon, until he has
undergone this transportation and service for seven years:
that this is grounded on the reason of the thing, on the au-
thorities I have cited, and upon the express words of the act
of 4 Geo. L; and that in consequence thereof, if Palmer wdiSj
and continued a felon, when Burridge assisted him to
escape ^ this was felony in Burridge to give such assistance.
As to the several. exceptions to the indictment, I hope i
have answered them all ; and have likewise shewn, of what
small avail it will be to the prisoner, should any of these ex-
ceptions succeed; since the consequence of such success
would be only a fresh indictment for a crime notorious to
all the country ; and of which the same evidence which was
given before would again convict the prisoner: so that it
would only delay this transportation beyond sea for seven
years, which the sooner it is begun, will be the sooner
ended. But what I humbly insist on is, that the point upon
the special verdict is plainly with the Crown ; that the in-
dictment is sufficient notwithstanding any of the exceptions;
and therefore pray judgment for the King, that the prisoner
at the bar may be ordered to be transported for seven years,
according to the sta^tute of 4 Geo. 1.

On the sixth of February, 1734, the Lord Hardwicke

De Term. S. Michaelis. 1736. 48*

Lord Chief Justice of the King's Bench, delivered the reso- Rex
lotion of the court in these words. p ^'

In the argument of this case many objections have been
made by the counsel for the* prisoner, which going princi-
pally to the indictment, ought first to be considered ; for if
the indictment doth not contain a sufficient charge, the ver-
dict cannot supply it. Those objections may be reduced to, TheobjectioM
and considered under, two questions. Firsts what crime of two question!,
felony is charged upon the prisoner Thomas Burridge by [ 483 ]
this indictment ? Secondly, Whether it be well charged,
80 that the court can give judgment upon it against the
prisoner ?

As to the first question, one may conjecture, and it is but First general
conjecture, that this indictment was framed and intended to ^"®**"*'^
be grounded upon the statute of 6 Geo. 1. cap. 23. sect. 5.
which makes it felony without benefit of clergy to aid or as-
sist felons convict to make their escape out of the custody
of such persons to whom they have been delivered in order
to be transported : but it is so plain that the fact laid is not
brought within the material provisions of that law, that it
was expressly admitted by the counsel for the king not to be
maintainable on this foot.

However, it has been insisted, that wilfully aiding and
assisting a felon convict, adjudged to be transported, and
committed to gaol, there to remain till he shall be trans-
ported, to escape out of such gaol, is by law felony 3 and it
has been put two ways, Firsty As a new principal felony,
substantive and distinct from the felony of William Palmer ,
the felon convict, who lay under the judgment of transporta-
tion ; or, Secondly y As accessary to Palmer'^ felony after the
fact.

Firsty It has been endeavoured to prove this offence to be
a new principal felony distinct from Palmer's crime, as a
breach of the prison, and letting a felon therein go at large ;
or as a rescue of a person arrested and in custody for felony^
[both] which were felony at common law.

But there is no colour to support this indictment as for an [ 484 ]
offence of breakimr the prison, because no breach of it is l«ian]nd«ct-

, . ® r y ^ ^ mentforanof-

iaid, which according to all the books is m that case ne- fence of break-
cessary. All that is s^d here is, that the prisoner assisted "eccswury to'
Palmer to escape, by means whereof he did escape, which i*y "\ actual
might be either with the consent of the gaoler, or by going
out of. the prison, the doors being op^n ; neither of which

3c2

iH Dn Term. S. Mkhaelis, 1735*

Rex would be a principal felony in the prisoner. So is Stanford
.^ ^' 31 a. 2 Inst. 589, 592. in my Lord Coke's commentary m

the statute Dejrangentibus prisonam^ and Hide's PI. Co. 108.

in all which cases it is agreed^ that an actual breaking miuft

be alleged*
In indictment We are also.of opinioi^ that there is no better ground to
for a rescue of gupport this indictment as for a rescue of Palmer^ I believe

apnsoner, the ^'^ * . i . i . • j

wordrescussit, no man eyer saw* either m authonty^ practice, or preeeaeati

MtthScnt to *? indictment for a rescue without the word rescusmt; aod

it, most be certainly that must, be charged^ or something equiyaknt to

wu forcible/ it) to shew that it was forcible, and against the will of tke

th^wSu^Tth ®®^' ^^® ^^ *^® prisoner in his custody. So is JD^€f

k^^. "" ^ 164. b. West's Precedents^ Tit. Indicttvimt, sect. 176, 181.

But) notwithstanding any thing charged in this indictment, it

might be a voluntary escape 1^ eoaseat of the gaoler, as I

said before, and consequently na rescue.

But to this it was said, that to assist a feloft to escape out
of prison, in any manner or sbtpe^ is eqiia% roischjeyom,
and tending to obstruct the justice of the kingdom ; and tk
rule is, interest reipubliem ut fsnriceres sint in tut^*
[ 485 ] This is very true ; but the inference drawn from it is not
right ; for this will not warrant us. to invent or create new
felonies; we must take them as the law of the land has made
them; and if that is defective, it belongs to the Legislature
whose proper power it is Jus dare^ and not to the judig>M
whose office is only^W dicere, to supply that d^ect.

Seamdhfy The other method taken to prove the oftoce
charged in this indictment to be felony, was by shewing that
the prisoner at the bar, by assisting .Po/m^ to escape, be-
came accessary to Palmer's felony after the fact.
One may be an And we are all of opinion, that a man may become an.ac-

accessary to a

felonyafterthe cessary to a felony after the fact, by assisting a felon coovict,
in?a felon"'" ^^Sf "^ custody under a sentence of transportation, to es-
convict, being cape out of prisou ; provided it be such an assistance as doth
der sentence^' in law amount to a receiving, harbouring, or comforting such

oftransporta- felon.

ontofprisoiL Indeed, before the statute of I Ann^, sess, 2. cap. 9. if
the principal was convicted, only of a clergyable felony, and
had, his clei^ allowed; or stood mute, or peremptorily
chidlenged above the number of twenty jurors, the accessary
could not be arraigned ; by this means accessaries to very
flagrant crimes frequently avoided all manner of punishment,
and therefore the act provides, that in all those cases it shall

Be Term. & Michadu, 1735. 485

be lawfal to proceed against any abccessaty, either before or Rex
after the fiact^ in the same manner as if such principal felon ^'

had been attainted thereof^ notwithstanding any sudi prin-
cipal felon shall be admitted to the benefit of his clergy^
pardotied, or otherwise delivered before the attainder.

Hie great objection to this^ aikd whidi has been much la- [ 486 ]
boured by the counsel for the prisoner, is, that at the time of
this fact committed, Painter was no felon, and consequently
there could be no accessary where there was no principal ;
for that the allowance of the benefit of the statute, and sen-
tence of transportation given thereupon, do, without more,
in judgment of law, amount to a pardon.

This objection opened the way to a very wide field of ar«
gament concerning the effect of the aUowance of clergy,
trithout actual burning in the hand, before the statute of 4
Geo. I. cap. IL for transportation of felons; and what
alteration has been made by that statute in the law upon this
head.

I shall not spend the time of the court by entering into a
detail of this matter, as it stood before the statute of 4 Gteo*
I. because it will not directly lead to the judgment to be
given in the present case ; but I shall choose to refer you to
three cases, in Which, being taken together, you will find all
the history and learning of the law on this topic fully stated
by mfinitely abler hands ; by my Lord Hobari, in the case of
Searl v. Williams^ p. 288. by my Lord CMef Justice Holiy
in the case of the appeal between Armstrong and lAsh pub-
lished at the end of Kelynge 93. and by my Lord Chief Jus-
tice Trehfy with admirable clearness, in the trial of the Earl
of fFarwick for the murder of Mr. Cootej in the fourth volume
6f the Sta^e Trials, p. 383. The subject has been so much
exhausted by these eminent sages of the law, that, without
repeating their reasoning, I shall only make use of the con-
clusion from them in answer to this objection, and that is, r 4^7 1
that by the true construction as well as the words of the sta- „ , ,,,.
tute of 18 Eliz. cap. 7. which takes away delivery to the or- actual burning
dinary and puliation, buming in the hand, as well as the J^ ^cIUb the
allowance of clergy, was necessary to the prisoner's dis- allowance of
charge firom the felony, and to constitute the statute- pardon cewSry^dir
(as it has been called) in all cases where by law buminir in charge the pri-

' "^ . ° ioner from the

felony; and
therefore, if before 4 Oeo. 1. c. 11. an offender after clei^gy allowed, had escaped before he had
been burnt ia the hand, be would have continued a felon, and a stranger by unlawfully receU^
mg him, Slc. might have bceome accesMfy to his felony after the lact.

487 De Term. S. Michaelis, 1735.

Rex the hand ought actually to take place. Therefore^ before the
1^ ^' act of 4 Geo. I. if an offender, after clergy allowed, had es-

caped before he had been burnt in the hand, I hold clearly
that he would still have remained a felon convict ; and a
stranger, by unlawfully receiving or comforting him, might
have become accessary to his felony after the fact. This
most plainly appears by the resolution of the Judges delivered
by my Lord Chief Justice Treby, in my Lord fFarwuk's
case which I have mentioned.

But to this doctrine some objections were made, drawn
from the very cases which I have mentioned. And, first, it
was objected, that in the case of Scarl and fFilliamSj my
Lord Hobart and the whole court of Common Pleas held,
that Searl was entitled to the full effect of his statute -pardon,
though he only had clergy allowed, and was not burnt in the
hand.

To this I answer : This resolution was very right, because
he was clerk in holy orders, who by the statute is exempted
from being burnt in the baud ; and therefore it doth not con-
tradict my rule, to which you observe I added this limitation,
in all causes where by law burning in the hand ought actuaUy
to take place. Agreeably to this my Lord Hobarty just at
the end of the case, hath these words : where the statute
[ 488 ] says J after burning in the hand according to the statute in
that behalf y " it imports where burning ought to be.''

2d Object. That the King may pardon the burning ; and
yet the offender shall, in that case, have the full benefit of
the discharge.

Answ. This likewise is within the construction of the sta-
tute, and the rule I laid down ; for, the pardon interposing,
it is not a case, where by law burning in the hand ought to
take place.

'6d Object. That admitting burning to be in some degree
necessary to the discharge by the statute, yet it is not to be
understood of actual burning, but only of the judgment quod
cauterizetur ; and the judgment of transportation, which
had been given against Palmer in this case, is at least equal
to that.

Answ. But, as no authority or judicial opinion was cited
for this, so there is no grouud for it. It is contrary to the
words of the statute of 18 Eliz, which says, after clergy al*
lowed and burning in the handy not after beingadjudgeity or
ordered to be burnt in the hand. It is contrary to the opi-

Dm Term. & Micliadis, 17S5. 488

liion of the Judges in the Earl of Warwick* s case, and con- R^x
tmry to the form of pleading auterfoits convict of man" ^ ^'
slaughter to an appeal of murder ; for there the appellee doth
not only set forth the judgment of allowance of clergy, et
quod in heva sua manu cauterizetur, but goes on and shews
the execution of it by burning. So is the plea in the case of
Armstrong and Lislcy Kelynge 93.

4ih Object, But firom the report of this case of Armstrong
and Lisle, a further objection was taken; for there it is
allowed by my Lord Chief Justice Holt, that, if a man be [ 480 ]
convicted of manslaughter, and prays the benefit of his
^CTg7i i^d the court respite it upon a curia advisari vult,
and remand him to gaol, he may plead it in bar to an ap-
peal ; and yet in such a case there can have been no bum^
ingy nor so much as ?k judgment for burning.

Anew, This is certainly law, and warranted by the case Where by the
of Bwgh V. Holcroft in 4 Co. 45, 46. : but it doth in no wise oftKu??!
impugn my rule ; for it depends upon a particular reason, pntoaer con-
which has no relation to the general question, and which is slaughter has'
expressly given ni the report, {viz.) that the delay or doubt noopportunity
of the court shall never turn to the pr^udice of the party » bis clergy, or
My Lord Chief Justice Holt goes further ; and admits, that l^^nd^if^'lind
if a man should be convicted of manslaughter, and the court the court
should not call him to judgment, whereby he would not have no record of
the opportunity of demanding his clergy, which he is not to jj '.„^***'; ^?^!"
have without a demand ; or at least if he had demanded it, and shewn spe-
and the court should make no record of it, yet he might not *turn to\ho
plead it, -shewing the special matter j because it is the delay prejudice of
and default of the court, which shall not occasion a detri-
ment to the prisoner. But none of these cases pr«ve any
thing agiunst the general rule ; and it is obvious to observe,
that they might as well be produced to prove, that the
prayer of clergy, or allowance of clergy, is not necessary to
the discharge by the statute, as that burning in the ha9id is
not so.

. Thus the law being clear, that burning in the hand was Alterations
necessary before the making of the act of 4 Geo. 1. for ^ utfj^ trans-
transportation of felons, let us now inquire what alteration [ 490 ]
has been introduced by this new statute. Upon this the ^e'lons'^'where.
question is in short, whether it has put the judgment of bythejndg<
transportation in the place of actual burning in the hand or ^^rutton^witb

regard to per-
sons conTicted of clergyable felonies is plainly and clearly put only in the place of the judg-
ncBt for burning in the hand^ not in the place of actual burning.

490 De Term. S. MiekaeUs, 1735.

Bbz only in the place of the judgment far burning in the lumd?
2 ^ If it has put the judgment of transportation in the place of

actual burning in the hand, then the objection is right| that
Palmer was discharged, and became no felon ; if it has put
it only in the place of the judgment far burning in the hand^
then the objection is ill-founded^ and Palmer remained a
felon convict not pardoned.

Now the words and intention of the statute are as plain as
any composition or piece of writing can possibly be, that the
judgment of transportation is put only in the place of the
judgment for burning in the hand; and the actual trans^
portation and service in the plantations is put in the place of
the actual burning. The very first clause in the statute is,
'* that the court, instead of ordering (that is, adjudging) aoy
*' such offenders to be biumt in the hand, may order and ^
'^ rect that such offenders shall be sent, as soon as comre-
'^ niently may be, to some of his majesty's colonies and
'* plantations in America, for the space of seren years ; and
<' that the court before whom they were convicted, or any
^^ subsequent court held at the same place with like anthih
'^ rity as the former, shall have power to convey, transfer,
^^ and make over such offenders, by ord^ of court, to the «se
'' of any person or persons who shall contract for the per-
'' formance of such transportation, to him or them, and his
'^ and their assigns, for such term of seven years/'

One would have thouj^t this had been plain enough : bat
the Legislature, in order to declare their own meaning, and
put it beyond all doubt, have added a subsequent clause,
'[ 491 ] whereby it is enacted, ^^ that where any such offenders shall
'^ be transported, and shall have served their respective terms
'' according to the order of any such court as aforesaid, such
'' services shall have the effect of a pardon to all intents and
'* purposes, as for that crime or crimes for which they were
'^ so transported, and shall have so served as aforesaid." I
will forbear to comment upon this clause, because I qapoot
make it clearer : one may turn and shew a very plain thing
in different lights, but it is impossible to make it more plain.

But to this an objection was made by the prisoner*s coon-
sel, that, it being only an affirmative clause, without any
negative words, cannot take away any discharge such felon
ordered to be transported would have been otititled unto
without it; and that he is absolutely discharged by the pre-

oedent dftOBd in this act, wliich takes away the bummg m An
the hand. « *••

To uribich I answer, thalt^ though I admiit that a new «f- , .
finnative law, wi^thottt negative words, AtaA not in many and under
cases repeal or take ^way the force of a former few subsist- ]J[^nc«"anaf-
ing before that was iiliBCfe, «nd independent ofk ; yet an af- Anu^eUm,
firmative clause in an act of parliament may expliun and re* ^y^

strain odier clauses in tiie same act of parliament : the whole ^^ "'^^
act must be construed togetiier and entire, and when tiie fimeqfafbf
Legislature have declared their own sense, and given their *^^^^*
own exposition at what time the intended discharge or par-
don shall take effect, it is not in the power of the Judges to
make It take effect sooner, and render this clause wholly nu-
gatory.

But what is the discharge enacted by the former clause,
and bow is the burning in the hand taken away? Is it taisen
awqr ttkoItt/«i^, or only mk modo f Most clearly only mb [ 492 }
modo. Another thing is substituted in the place of it^ tfi-
iUai of bring onferstf to be burnt in Ihe hand, the ofiender
»haU be ordered to be transported to some of his majesty^s
plantations for seven years ; but that judgment must be car-
ried into execution, as the judgment in lieu of which It
comes was to ha:re been before ; and if it had stood merely
upon the force of this first clause, I should have thought
the oonstructfcn would have been just the same.

So much of the debate at the bar turned upon this poin^
tiiat I have thought fit to say thus much, in order to settle
the law upon it, and to prevent any misapprehension tiiat
might arise from the judgment the court is about to give in
this cause, as if any doubt remained, whether a man might
assist a felon convict, lying in gaol under sentence of trans-
portation, to break prison, or rescue him, or receive or har-
bour him, without incurring the guilt of felony. Such a
notion going abroad might greatly weaken the security for
the custody of such felons.

But, after all, the judgment of the court will fall under the Second g^ne-
second general qucBtion, which is, whether the ofience be "l<l»«»^»'
well charged in tiiis indictment, so as that the court can give
judgment iqpon it against the prisoner ?

I have already shewn, that this incQctment cannot be sup-
ported as for a felony in breaking the prison, or resetting
i^dmer; therefore, nothing remains but to consider, whether

49i De Term. 8. Micluidu, 1735«

Rxz it has raflhdently charged thU Uut cffence nf an aeceaay to
V* Palmer'^ felony after the Curt.

\A^'\ ^^ we are all of opinion it has not; and that it is mate*

rially defective in many things necessary to an indictment

against such an accessary.
Is all tadict^ Fittt^ It is not charged that the prisoner at the bar knew
"""tofSd"** that Palmer was guilty, or convicted of felony : this is an
Mccwnjaftcr essential ingredient in all indictments against a person who
cc^w br^* becomes an accessary after the fact, by receiving, harbonr-
bomiiw» &«. a i^g^ q^ comforting a felon. So is BracUmy lib, 3. De Co-
cemuyto rona, cap. 13. sect. I Sf 2. Slamf. 41 b. 3 InsL 138.
^^Ei^t ^^* -P'- Cto. 218. Co. Eni. S6, 57. SasL 43 b. 47 a.
knew the prin- SO^&Sib.Ma. This general rule has not been disputed : but
g!Sufor con- Bome distinctions have been taken to excuse the want of it in
V^ ^^the ^^ indictment ; as, first, that it appears here that Burridge
vmisdon of was a fellow-prisoner in the same gaol with Palmer ^ and
^I^^^S^^ therefore it must be presumed he had notice of Palmei'%
not to be felony or conviction.

lidpedbytlie '

Sndioff of the rerdict ; capedaUy if the reidict does not find the &ct of notice, but oaly what

if CTioence thereof.

• - •

An9w. But this appears by the special verdict only, and
not by the indictment : and, as I said at firsts the verdict
cannot supply a material defect in the charge ; neither, if the
question was upon the verdict, should I think it sufficient ;
because it is not the fact of notice^ but only evidence of it;
So in the case of the King and Plummer^ Kelynge II L it
is hud down by my Lord Chief Justice Holt^ that the jury
might well have found that the fuzee in that case was dis*
charged against the King's officers : but since they have not
found that matter, we are, says he, confined to what they
have found positively, and are not to judge the law upon the
evidence of a fact, but upon the fact as it is found. Thus
[ 404 ] also was the resolution of the court in the late case of The
King and HugginSy Mich. 4 Geo. 2. B. A.

Secondly J Another distinction made was, that it appears
by the indictment that Palmer was convicted by verdict in
the game county in which the ofience of the accessary is
charged to have been committed y and the law presumes notice
to all in the same county, but not in a foreign county. For
this Fitzherbert, tit. Corone PL 377- Stan\fn 41. A, and
HaWs P. C. 218. were cited.

Answer. The note in Fitzh. is mentioned to be in Hilary

€1

De term. S. Miehadi^, 1735; 494

Term, 12 Ed. 2.: but I cannot find any such case or opinion Bjex
in Maynard^B Year Book of that term ; besides, it is a very ^'

loose note, and scarcely intelligible. > Nota, That if

a man is indicted of a rescue of a person outlawed in the
same county, he shall lose life and member; otherwise, if in
*^ another county." Nothing is here said of notice; and,
taken generally, the passage is certainly not law : but sup-
pose this to be loosely said in one or two books, yet it is a
harsh doctrine, and I cannot find any judgment founded upon
it. Nay, it is strange, how such a distinction could be made
at common law upon the point of knotoledge in the accessary;
because, before the statute of 2 & 3 Edw. 6. c. 24. was
made, any person, who in one county received a felon that
had committed a felony in another county, could not be
punished at all for want of trial, and consequently the suffi-
ciency of notice could at that time never come in question
in such a case.

And therefore my Lord HctU, though he sets it down as
the opinion of some others, yet gives his own opinion to the
contrary. The whole paragraph runs thus: — "Every re-
" ceipt to make an accessary must be, knowing him to be [ ^^^ ]
** such : but if a man be attaint of felony in the county of -rf.
^^ the law presumes notice thereof in the same county ;
" therefore the receipt of him in the same county seems ac-
" cessary ; contra, if in another county. Vtdetur cognitio
^ requisita in utroqtie."' And I take these latter words to
be his (a) own sentiment. I have seen a manuscript note of («) See the
a very learned Judge upon this passage in Hak's P. C. in Scribed ^m
the following words : — ^^ Mes semble que tiel legal notice 2*, ^J? .

rci >»•• %/•• .., • £f » N »*'•* ■ History

*' n est sufficient a f aire un criminal, coment sott sufficient a of the Com-
** rendre luy responsible in matter civil : coment est doubt in Jbe^Crown
^ ceo : issint il n'est accessary sans actual notice." See also inserted by
Dalton, (last edit.) 530. Stamf. 96. the^Re^rter'i

Mr. Lambard, in his Justice of Peace, hath this passage, jj^ment^anf
j». 293. '^ There is some opinion, that a man shall be an
" accessary for receiving a felon attainted, (especially in the
^ same county) though he know not of. the attainder at all ;
*^ for every man, say they, is bound to take knowledge of a
*^ matter of record, at least in the same, though not in a
** foreign county. But Bractoft very reasonably requires a
^' right and direct knowledge in the parties to make them
*^ accessary, as well in the one case as the other ; for albeit a

49&

^t Tern. S. A^badi», 1796.

3D.
B1IRRIOO&

[49C]
In an indict-
ment against
one as acces-
sary after tbe
fact to a fe-
lony by receiv-
ing, 6lc, the
principal, who
was outlawed,
or attainted in
thesamecoun-
ty, it ought to
appear, that
the party re-
ceinng, &e«
did it sciens
or scienter;
otherwise it
will not
amount to an
absohite legal
presumption,
so as toex-
cuis such
>n«

In criminal
casesi though
the county be
in iha margin^
yet tbe place
where the fact
is supposed, to
• be done must
in the indict-
ment be laid to
be in com'
pradict';
otherwise in
civil cases.

[ ♦ 497 1

^' tenotAf and especially the pronunciiitioii of an onttawry, be
'^ 30 BotorioHs, that every man mof easily come to know the
V same, yet were it an over greai e^remiiy that each man
^^ riiould, upon the perU of hie own l^fkf inform himself and
^ take understanding oS it."

This reasoning of Mr. Lafnbatd appears to be yery judi^
cions ; and upon the whole of this point we all think, that
the true way of understanding these books is^ that an oat-
fatwry or attainder in a particular county may^ as the case
maiy happen to be circumstanced, be some cadence to a jury
pf notice to an accessary in the saiae county; but that it can-
not, mth any reason or justice^ create an absolute legal fre--
eumptien of notice^ so as to excuse the not charging the &et
to be done adene or eeienier in the indictment, as it is here.

fiesides, if this could be so, the fact charged in this indict-
ment to be done by tbe pnsOner, is, in strictness, not charged
to be done in the county of Somerset, where the oonmtion
was : it* is laid, that after tbe judgment of tranq^rtation
Palmer was conunitted to the custody of the keeper of his
Mojesty^s gaol at Jhelehester, in the said county, tiiere to
remain until he should be transported ; and that afiberwards,
to wit, on sueh a day, Thomas JBurridge, at Ivelcheeter
afanaaidy (without saying in the said county) wHfully and
feloniously aided and assisted him to escape out oi the
said gaol.

Now it is not laid, that this fact of aiding and aasietmg
was done with force, nor that Burridge was preseM ai the
escape; and therefore the aid and assistance might be aflforded
in a different county, and we cannot take notice that the
whole township or vill of Ivelchester is in the county of
Somerset y i Sid. 345, Parker v. Ladd, in eusumpsit, Salop
was in the* margin, and the declaration set fortb the promise
to be made apud Salop, without saying /7r^ic#*, or in cam'
pnedict', which the court held to be well enough in a declar-
ation, and that the form in the Common Pleas is always ao,
but declared that it would clearly be ill in criminal cases,
Paschee, 12 fF. 3. B. R. Rex y. Fossett, it was held that in
an indictment, if the county is in the margin, and the place
where the fiu!t is supposed to have been committed is not
said to be in com* preed', it is ill, but that it would be good
in a declaration.
> TMrdfyy Another excq>tion was, that it is not alleged that

i)# Term, ik Mickaelh, 17S& 491

Balmer was in pmsoafor the aanmjabmjf wherorf he was ^ Rfex
eonTioted^ or for amy ftitmy, ai. tike* time the prisoner at the ^'

bar asfiisled bniLto make nifreBcape.

The aoewer gitreato this was, thatuttheBpeciBlveBdict it
is fouad that the priaoner did wilfdUy aid andiasBiat flKBiam
Palmer^se being'imcusi0djiias< a^£iaidj to escape out ofUw
said gaol.

But, ae I said before^ the findings <d the jfbry will net aM
tite- mdictmeut^ andi therefore this ilB no answer; aadweall
think that for thie onuseinn the charge is; nncevtaan'^ fovM
may be tnie> that^ kt Jimuaryf Ptdm^ wa» conunittedrupon
the jttdgBMnt of tiansportation^ and' in OMsierfollDwing* (ae
it is hem laid) the prisoner at the bar mi|^ assist him' tfii
eseqpe^ and yet he mi^iA have been legally^ ^eharged^ mat
again committed' fiv< another' mattery aaintrespaas^fto; iw
the meaQ time. In Dyep-164. ift; wbiek'Ic mentioned befove|:
it is laidithat the o0):er cepiP'et amitmnt. the piisoneir^ e^

dMi^ j^MONfjfn^ the defendants' ^mnre emtbdR p/nsdM fdo^
nkh eepenmi' el resouiMr^.

Another esception was. taken to this indictunaiti for waartr [ 498 ]
of .being litdivt ett armi^

The answer to which was^ that it is aided by the staMe ofi QMmwhethcr
91 H.9^c.Sji but tho cases iqpoo thia ace so vaaons^and ^^^^^^^
disagree sa mnch^ whether the want of ni et armUy ot oaly ovXyot ^
of the words, viz. gladik^ baculis^ et cuUelhB, which was* the u^!^^^^'
ancient form, are aided by that statute; and it is a point ofissh ^^^^^ -
great consequence, that we think it more proper to decline' 37,H*8^cS.,.
^ving asi opinion upon it, till a.caee^hall happen wherein it: ^jfj^^^
shall be necessary to be determined ; for kt present we are» tkipiMawBs*
of opinion, that, upon the other exceptions before mentioned^
tke indictment is insufficient in law, aod jndgmmt cannot be
^ven upon it against the prisoner.

This, being the opinion of the court, gives rise to a subse-
quent consideration, what judgment ought to be given for the
prisoner, whether to discharge him of this^ indictment, or to
quash it ? And we are all agreed that juc^pnent ought ta be
^ven to discharge the prisoner from this indictment.

I can find bat one case wherein it was done otherwiiie, and
that was The King v. Keiies, HiL 8 fF. 3. B. R. 5 Mod.
287. Skin. 0616. At the gaol delivery for the county of
1V\U$y Mr. Keite$ was indicted of murder at common law^

498 De Term.S. MichaeUs, 1735.

Rex and also on the statute of stabbing, for killing his semnt;
^' and a special verdict was found, which being removed into

this court, the question was, whether the fact amounted to
murder, or only manslaughter ? After two argument?, the
court thought the special verdict was so uncertain and imper-
fect, that no judgment could be given upon it; and a doobt
seems to have arisen, whether a venire facias de nom coold
[ 490 J be awarded in a capital case. To avoid this question, my
Lord Chief Justice Holt himself on the last day of the tenn
took several exceptions to both the indictments, for which a
rule was made that they should be quashed. I have caused
a search to be made^ and no judgment is entered on the
record ; but I have found the rule in the office book, and the
prisoner was bailed to appear at the next assizes. This paased
on the last day of the term ; and I do not find by my mana-
script report of the case, which was taken by a very learned
hand, that any opposition was made by either side to the
quashing of the indictment. The ground the court vent
upon seems to have been that KeUes was certainly found
guilty of felony in killing a man : but what kind of felony it
Was, whether murder, or an aggravated manslaughter, was
uncertain; and therefore it was fit to be left open. to some
method of re*examination.
Wheratbe in- But the present case differs maUriaUy ; for as this in-
Dotwdlcbu^- dictment has not well charged a felony, so the special verdict
ed ■***®"y» has not certainly found any upon the facts therein stated;
T^ict cer- and therefore it is totally uncertain whether the prisoner at

liy ui^n the ^^ ^^^ ^ Polity of any felony at all, or only of a misde-

fiicfB therein meanor. Suppose the prisoner had demurred to this indict-

consequently nient, and the king's attorney had joined in demurrer, and
**h*th"*^S^ the matter of law had been argued, the judgment given

piiMner be thereupon must have been a judgment of acquittal. So, I

Sony at aU"'^ apprehend it would have been, if the jury had found a gene-

or only of a ral verdict that he was guilty, and afterw^irds the judgment

or where in ' ^^ heevi arrested for defects in the indictment. And the

anch case the like reason does in justice hold here.

prisoner de- ''

giren mast be a judgment of acquittal : but this wiU be no -bar to another indictment con-
atitnting a different offence.

[ 500 ] From hence no inconvenience can arise; for this judgment

can only go to the fact here charged : but will be no bar to

I'r

D« Term, S. MichaeUs, 1735. 500

a new indictment containing a fact so described, and charged Rbx
with sach circumstances as to constitute a different offence. _ ^^
Therefore upon the whole matter judgment must be entered
for the prisoner, and he must be discharged from this indict-
ment.

Note ; at the prayer of the king's counsel, the' return to
the habeas corpus was read, whereby it appeared that the
prisoner stood likewise charged with a commitment by a
justice of peace to Ivelchester gaol for a misdemeanor ; of
which he had confessed himself guilty before the justice ; he
was therefore remanded back to Neufgaie, to be there kept
in safe custody until he should be from thence discharged by
due course of law. After which the prisoner was indicted
anew at the next assises held for the county of Somerset;
and being convicted on such indictment, was transported for
seven years.

The indictment on which the prisoner: was tried a second-
dme, being settled by advice of counsiel, was as follows : —

#
THE jurors for our sovereign lord the * *^

omerse %re. j^jjjg^ upon their oath present, that hereto-
fore, that is to say, at the general quarter . sessions of the
peace of our sovereign lord the king, held at fFelb, in and
for the county of Somerset, upon Tuesday, {to wit) the
eleventh day of January, in the fifth year of the reign of our
sovereign lord George the second, by the. grace of God, of
Great Britain, France, and Ireland, king, defender of the
fiiith, and so forth, and in the year of our Lord one thousand
seven hundred and thirty-one, before Thcfmas Carew, Esq., [ 501 ]
James Strode, Esq., Thoma^s Coward, Esq., Richard Comes,
Bsq., William Long, Esq^ Joseph Brown, Esq., fFilliam
Ckurchey, Esq., William Jones, Esq., Thomas Palmer, Esq.,
Adam Martin, Esq., Philip Sydenham, Esq., and others
their fellows, justices assigned to keep the peace of our said
lord the king in the county aforesaid, and also to hear and
determine divers felonies, trespasses, and other misdemeanors
committed in the same county, and so forth, by the oath of
TItomas Cooke, Gabriel Pyleqffe, Henry .Guy, William
Counsel, John Linthom, Henry Cosens, Thomas Sampson,
Thomas Perry, Edward Cqx, Thomas Palmare, Henry
ff^oolford, John. West, James Moore, Israel Gliston, William
f^ear, Henry Fisher, Bichard Bagg, Joseph Bernard,

SOI D^ Term. S. Mchadi$, 1735.

Bit: Mbdmtd Ennmh^^ Thamm DmAmm^ WiUkm Setwt^, vA

^ ^ Jmhn Baihj gentlemen^ good and lawful men of the cooBty

atfbresaid, inqMtneUed, swom> and chaiged to uu|mre for our
said lord die khig, for the boijr of the county aforesaid, it
was presented^ that fFilliam Palmer y of Overstowey, in the
oounty of Somerseiy labourer^ on the twelfth day of November ,
in tiie ilftii year of tibe reign of our soTcreiga lord Qeorgetht
aecondy by the grace of Grod, of Oreai Briiainj Frarwey and
trebmd^ kifig' defender of the fidth, and so forth, with force
and anofiy and so forth, at Overaioioey aforesaid, one ewe
Aeep of the- yalue of six shUlingsy of the goods and diattels
of a person unknown, then and there bemg fonnd^ then and
Ibere fdonionsly did steal, take and car^ away, agaonst die
peaee of our now said lord the king, hia ctowb and digoitjr,
ttsd so foidi*

And the jurors aforesaid, now sworn here upon tiieir said
dadi firdio^ pfesent, that at the same generai qnarterwaesaions
of the peace of our said lord the king, held at fFeUsy in and
for the said county of Samerseiy upon Tuesday the eleventh
[ 60S ] day of Januanff in the fifth year aforesaid, the aforesaid
MHUiemi Palmer^ waa duly tried and convkted of the felony
adboee mentismd, chaipd i^pon him as aforesaid; and tint
it was then and there adjudged by the same court, diaft the
said fFUHam Aifawr should be transported for the space of
iievtn years, according to the form of the statutes, as by the
lecQid Ifhereof and proceedings remaininj^ aimoiigst the fe-
corda of the general quarterosessions of the peace of the ssid
donnty of Somereety at WeUsy in the county aforesaid, it
doth more fully appear*

Aiid the jnrors aforesaid, now^ sworn here, upon their sud
oath further say, that the aforesaid William Pahnery being
so* as aforesaid tried and conTicted of the said felony, wav
t^en and there (to wit) at the same general quarteivsesskios
of the peace of our said lord the king, hdd at fFellsy in and
for the county aforesaid, upon Tuegdmf the said elcTentfa day
fAJwmmnfy in th(K fifth year aforesaid, conunitted l^the
same court to his majesty's gaol at Ipelcheeier, in the ooonty
afaresidd^ upon and in execution of the sdd judgment for the
f(dony aforesidd.

And the jurors aforesud, now sworn here, upon ihdr said
cnth forther present, that Thomas Burridge, late of Chardj
in Hm county of Somerset, tailor, being a prisoner in kii

De Term. 8. Michadis, 1735. 602

majesty's gaol at Ivelchester aforesaid, in the county afore- Rkx
said, on the thirteenth day of October, in the sixth year of ^ ^'
the reign of oar said sovereign lord king George the Second,
and well knowing that the aforesaid William Palmer, then
also a prisoner in the said gaol, had been convicted of and
committed to the said gaol,, in execution of and for the felony
aforesaid, and did then and there remain so convicted arid
commuted upon and in execution of the said judgment for
the said felony as aforesaid, afterwards, that is to say, on
the same thirteenth day of October, in the sixth year of his [ 503 ]
said majesty's reign aforesaid, with force and arms at Ivel-
Chester aforesaid, in the county aforesaid, did wilfully and
feloniously rescue the said William Palmer, then and there
being in the said gaol so convicted and committed upon and
in execution of the said judgment for the said felony as
aforesaid, from and out of the said gaol, so that he the said
William Palmer did make his escape out of the said gaol,
and then and there did wilfully and feloniously aid and as-
sist the said fFilliam Palmer, then and there being in the
said gaol so convicted and committed upon and in execution
of the sud judgment for the sidd felony as aforesaid, in
making his escape out of the said gaol ; and that the said
fFilliam Palmer, by the aid and assistance of him the said
Thomas Burridge, did then and there make his escape from
and out of the said gaol, and go at large, to wit, at IveU
Chester aforesaid, in the county aforesaid.

And the jurors aforesaid, now sworn here, upon their said
oath further say, that the said Thomas Burridge, being a .
prisoner in his majesty's said gaol at Ivelchester aforesaid,
in the county aforesaid, on the said thirteenth day of
October, in the said sixth year of the reign of his scdd ma-
jesty our sovereign lord king George the Second as afore-
said, afterwards, that is to say, on the same thirteenth day
of October, in the sixth year of his said majesty's reign
aforesaid, with force and arms at Ivelchester aforesaid, in [ 504 ]
the county aforesaid, did wilfully and feloniously break the
said gaol, and rescue the said fFilliam Palmer, then and
there being in the said gaol so convicted and committed
upon and in execution of the said judgment, for the said
felony as aforesaid, from and out of die said gaol, so that he
the said fFilliam Palmer did make his escape out of the
said gaol, and then and there did wilfully and feloniously

VOL. III. 2 D

504 De Term. 8. Michaelis, 1735.

Rex aid and assist the said ff^tliam Palmer, then and there
g ** being in the said gaol^ so convicted and committed upon
and in execution of the said judgment^ for the said felony
as aforesaid, in making his escape out of the said gaol, and
that the said fFilliam Palmer, by the aid and assistance of
him the said Thomas Burridge, did then and there niake
his escape from and out of the said gaol, and go at la^,
to wit, at Ivekhesier aforesaid, in the county aforesaid,
against the peace of our said lord the king, his crown
and dignity.

TABLE

THE PRINCIPAL MATTERS

CONTAINED

IN THE THREE VOLUMES.

Snch of tho Contents as hare the Letter (N) added at the End^ re£er to the Notes, which are,
for the most part, taken from the Reporter's Manuscript^ and were nerer before printed.
{Original Editw'a Note to the Table in tAe Third FoltttHe,)

• A.

ABATEMENT, REVIVOR.

Wrese a bill wants proper parties^ it
is in the power of the court to dis-
miss the bill without prejudice, or to
give leave to amend on payment of
costs. 1. 428

On a bill brought by a bankrupt against
the defendant his supposed debtor
for an account, the assignees under
the commission were charged in a
proper manner, but the prayer of

• process was only against the defend-
ant ; a good plea in abatement that
the assignees were not made parties.

I. 593

A commission being granted to examine
witnesses at Algiers^ the plaintiff
died, by which, in strictness, the suit
abated, but the witnesses were ex-
amined there before notice of the
plaintiff's death; the examination

held regular, though one of the wit-
nesses was yet living. III. 195

See tit. Examination.

If the defendant's time for answering
be out, the court will order proceed-
ings to be revived. So though the
defendant by his answer insists that
the plaintiff is not entitled to revive ;
for this ought to be shewn either by
plea or demurrer : but if in such case
it appears at the hearing, that the
plaintiff had no title to revive, he
cannot have a decree. III. 348

See Akswea, Plsa and Demurrer.

ABEYANCE.

The reason why an estate is said to be
in abeyance. I. 516

In case of a will, where the remainder
is devised in contingency, the rever-
sion in fee is not in abeyance in the
mean while, but descends to the heir.

ibid.

Though the freehold of lands cannot be
2d 2

506

A TABLE OF THE PRINCIPAL MATTERS.

kept in abeyance, bat mast vest in | If after a decree to accoiint an executor

somebodj, yet there is no such rale|
witb regard to personal estates^ which
may remain in saspence, and wait till
a contingency happens. III. 305
Lands are devised to A. and B., and
the heirs of the sanrivor, in trust to
Bell; though the inheritance be in
abeyance, yet the tmstees by a fine
may make a good title by estoppel.

III. 372

ABJURATION.

The nature and consequences of abju-
ration by the ancient common law.
Protestant dissenters made liable
thereto, by 35 Eliz. cap. 1. fee/. 2.;
but exempted from them by the
toleration act, or 1 #F. ft M. tU 1.
cap. 18. IIL 38, 30 (N)

ACCESSARY.

There may be an accessary to an ac-
cessary before the fact, but not to an
accessary after the iact. III. 475

See more under title Principal and

Accessary.

ACCIDENTS.

See Casualties.

ACCOUNT.

Where an executor has an express lega-
cy, the Court of Chancery looks upon
him but as a trustee ; atid will make
him account for the surplus, though
the spiritual court has no such pow-
er. I. 7
Captain of a ship dies leaving money on
board, intended to be improved in
trade, the mate becomes captain, and
improves the money, he is liable to
account for the profits and not for the
interest only. I. 140
In an account both parties are actors.

1.263
And may revive. I. 743

A. is a goldsmith, alid there is mutual
credit betwixt A, and B., and A» be-
comes a bankrupt, only the balance
shall be liable to the bankruptcy;
neither is it material whether the mu-
tual credit be by open account, or
mutual stated debts. " I. 325

or administrator does not revive within
six years, this is not within the its*
tute of limitations. I. 742

Where the child of a freeman of London
is to make his election whether he
will' abide by the will or by the cus-
tom, he is not obliged to elect until
after the account taken. III. 124(N)

In a decree of foreclosure against an in-
fant, though the infant has six months
after he comes of age to shew caosc,
&c. yet he cannot ravel into the ac-
count, nor even redeem, but only
shew an error in the decree* III. 352

Account of ProJUs from whai tmej
where fivm the Title accruing^ and
where fi'om the fiUng the Bill onlt/.

Where one is in possession of lands be-
longing to an infant, if the infint
when of age makes out his tide, he
shall recover the profits in equity
from the first accruing of his title,
and not from the filing of his bill
only. II. 645

So the defendant shall account for the
profits from the time the plaintiff's
title accrued, and not from the filing
the l)ill only, if the defendant has
concealed the deeds and writinics
making out the pfauntiiT's title* 11.645

ACTION OR SUIT.

Debt against the sheriff for an escape of
one in execution, on an outlawry after
judgment, may be brought either in
the tarn quam or at the suit of the
party only. I. 687

A scire facias is not in nature of a new
action, but a continuation only of the
old one. III. 148

Where the plaintiff has first brought
his action at law against the defend-
ant, and has bail, the Court of Chan-
cery will not grant a ne exeat regnum.

III. 314 (N)

ACTION, CHOSE EN.
See AssioNMEKT, Ba&on ahd Fsmi*

ADEMPTION OF A LEGACY.
See Legacy.

A TABLE OP THE PRINCIPAL MATTERS.

507

ADMINISTRATION AND AD-
MINISTRATOR.

An administrator since the statute of
Edw. 3. and before that of Car. 2.
had all the power of an executor, and
consequently was not compellable to
make distribution amongst the next of
kin, but the latter of these statutes
directs a distribution. I. 8, 49

One dies intestate leaving an aunt and
a grandmother, the latter is nearer of
kin than the aunt^ and entitled to ad-
ministration. 1. 41

Administration committed, though con-
trary to the statute of H. 8., is not
void, but voidable. I. 43

An administration granted by the arch-
deacon or ordinary, where there are
b<ma notabiUa in divers dioceses, is
merely void. I, 767

A bastard dies intestate without wife or
issue, and leaving a personal estate;
the kiDg is entitl^^ and the ordinary
of course grants administration to the
patentee of the crown. III. 33

A church lease for three lives is granted
to a bastard and his heirs, who dies
without issue, and intestate; what
shall become of this lease ?

III. 33, 34 (N)

An administration is granted during the
minority of four infant children, one
of whom being a daughter,, marries
an husband who is of age f the admi-
nistration is not determined. III. 81

So where an infiint executrix being un-
der seventeen, administration is grant-
ed, and the infant marries an husband
of age : this does not determine the
administration, by the opinion of the
Lord King^ Chancellor, and Aoy-
montL Ch. J. contrary to the opinion
10 5 Co* ^9. which seems to have been
extrajudicial, and is not taken notice
of by contemporary reporters. III. 88

So if administration be granted during
the minority of four infants, and one
dies ; this does not determine the ad-
ministration, contrary to the opinion
in 5 Co. BrudenelTt case. III. 80

In a bill for an account of the personal
estate of J. 5., though the person who
has a right to administer to X 5. be a .
party, yet this is not sufficient with- I

out administration actually taken out.

in. 349

One sues as administrator to J. S. with-
out shewing that J. S. died intestate;
yet an administration taken out of the
Archbishop's court shall be intended
to be a good administration. II L 370

Administration granted in a foreign
court (as in Portr) not taken notice
of in our courts. III. 371

A. owes money by several judgments
and bonds, and dies intestate; his
administrator pays the judgments and
some of the bonds, and pays more
than the personal estate amounts to ;
what the administrator paid on the
judgments must be allowed him:
but as to what he paid on the bonds,
he must come in pro ratd with 'the
other bond creditors. III. 400

And see title Executor and Admi9Is-

TBATOR.

ADVANCEMENT.

jL having seven children, makes an- ex-
ecutor in trust, and devises to each
child one 7th of his personal estate ;
one of the children dies in A.*s life-
time, and one of the six surviving
children has been advanced by the
father in his lifetime ; yet this child
shall take his full share of the 7th
part, without bringing what he had
before received into hotchpot.

III. 124
The father is the only judge of what is
a proper advancement for his child.

III. 285
Inconsiderable sums occasionally given
to a child not to be deemed an ad-
vancement, or any part thereof. Thus
maintenance money, or an allowance
made by a freeman to his son at the
university, is not to be taken as any
part of the child's advancement; nor
putting out a child apprentice: but
the father buying an office for his son,
though but at will, as a gentleman
pensioner's place, or a commission in
the army, these are advancements
pro tanto. III. 317 (N)

Vide Resulting trusty Sfc. under title
Trust, also title London^Custom cl&

Jf08

A TABLE OF THE PRINCIPAL MATTERS.

ADULTERY.

Where the wife sues the husband for a
specific performance of her marriage
articles, and that he may settle such
and such lands npon her in jointure,
it is no bar to her demand, that she
has doped with an adulterer; much
less if this be not by the husband put
in issue in the cause. III. 269

An instance where the reconciliation by
the husband after the wife's going
away with the adulterer was specially
pleaded, and the plea allowed.

III. 273 (N)

Why a husband does not forfeit his te-
nancy by the curtesy on leaving his
wife, and living in adultery, as a
wife forfeits her dower by elopement,
&c ^ III. 276

ADVOWSON.

An advowson descending to an heir is
real assets, and (as it seems) extend-
ible in an Elegit. III. 401

See pRESENTATIOir.

AFFIDAVIT OR OATH.

Bill will not lie to perpetuate testimony,
&c. before trial, unless affidavit be
made of the witnesses being infirm
and unable to travel. I. 117

A peer of the realm is to put in his an-
swer upon honour, but his answer
to interrogatories and examination as
a witness must be upon oath. 1. 146

Where in an inferior court I am sued
for a matter out of the jurisdiction, if
in vacation time, a prohibition may
be had in chancery, on affidavit that
the matter is oat of the jurisdiction :
but no affidavit is necessary where on
the face of the declaration the matter
appears to be out of the jurisdiction.

I. 476

Where a master reports any thing as
admitted, by either of ' the parties,
which report is afterwards excepted
to ; the report must, prim&facie^ be
taken to be true, and requires at
least an affidavit to falsify it.

in. 142 (N)

Affidavits allowed t6 be read for a pa*
tentee of a new invention, upon a
motion to dissolve an injunction, on
coming in of the answer. III. 266

A precedent of a ne exeat regnum being
granted on affidavits, though there
was no bill in court whereon to ground
the writ III. 313 (N)

AGE.
See Infant, Parol Demub.

AGREEMENT.

On casualties happening between the
articles for a purchase and the sealing
of the conveyance, who shall bear the
loss. I. 61

One articling to leave his wife 10001.
within three months after his death^
cannot be enforced in equity to a-
mend the security. 1. 107, 460

Where money is agreed to be laid out
in land, the party, who would have
the sole interest in the land when
bought, may (if of age) have the mo-
ney paid to him. 1. 130

But a person entitled only to an estate
tall in the land shall not have the
money, because of the remainder-
man's chance. 1.471

One settles lands on marriage on him-
self and wife, and first son, &c. and
makes over bankers assignments on
the same trusts, and if the annuities
are redeemed, the money to be in-
vested in land, and settled to the same
uses; these annuities shall go to the
heir, and not to the executor. I. 205

One agrees lor a valuable consideration
to convey lands to J. &, and after-
wards confesses a judgment to J. N.y
if the consideration money paid by
J. S. be any-ways adequate to the
value of the land, it binds the land
in equity, and shall defeat the judg-
ment; iecusy of a mortgage, or if the
consideration were not adequate.

I. 577

One agrees before marriage to settle
certain lands on his wife for life, and
afterwards devises these lands for pay*
ment of his debts, the covenant is a
specific lien on the lands ; tecus^ had
it been only an agreement to settlf so

A TABLE OF THE PRINCIPAjL MATTERS.

S0»

much per anfitifn, withoat mention-
ing any lands in cel'tatn. I. 429

A bill in equity will not He for a spe-
cific performance of an agreement to
transfer 5(>tf/A-fea stock ; fect^r^where
the thing contracted for may be par-
ticularly commodious to the party.

I. h^Q

Vide infra, where an agreement ii to be
performed in specie, and where not.

One for a valuable consideration con-
tracts to become a freeman of liion-
donj but dies before he has taken it
up ; his personal estate shall be divid-
ed as if he had been a freeman, but
his children not to be city orphans.

I. ^10
A. articles to buy land, and pays part

of the purchase money, afterwards he
enters into several orders of court
to pay the residtie by such a day, or
in de&ult thereof to give up the arti-
cles, and lose what he had before
paid ; court will relieve, though these
articles have not been complied with.

II. 66
Money covenanted to be laid out in

land shall descend as land : but he
that would be entitled to the fee of
the land when purchased, may dis-
pose of it by a will, though not at-
tested by three witnesses ; also a parol
direction for the payment of it seems
to be good : so if money is ordered
or devised to be hud out in land and
settled, to the use of A. in tail, re-
mainder to himself in fee, equity will
order the money to A. Secusy if the
remainder thereof be limited to a third
person; also, though by a voluntary
contract money is agreed to be laid
out in land, the court will execute
such agreement in favour of the heir.

II. 171

Two article, that whatever J. & shall
leave to either of them shall be equally
divided betwixt both; such agree-
ment good, and shall be carried into
execation by this court*; also if after
this one of them contrives that J. S,
shall leave part of his estate to a third
person, in trust for him, this is within
the articles. II. 183

It is against natural justice that any one

shonld pay for a bargain which he
cannot have ; as if 1 article to buy a
house, and the house is burnt down
before the day of payment, 1 am iM>t
bound to pay the money. II. 230

The plaintiff's bouse being so near the
church that the ringing of the five
o'clock bell in the morning disturbed
her ; the plaintiff came to an agree-
ment HI writing with the churchwar-
dens and inhabitants at a vestry, that
she would erect a cupola and clock at
the church, in consideration of which
the bell was not to be rung in the
morning ; this a good agreement, and
decreed to be binding in equity.1 1.266

Where one articles to sell an estate, and
brings a bill for an execution of the
agreement, though at the time of the
agreement he cannot make a title to
the purchaser, it is sufficient if he is
able to do so when the decree or re-
port is made. II. 630

See tide Lokdoit.

One articles to buy land, and the title
18 under a will not proved in equity
against the heir ; yet in some cases
equity will compel the purchaser to
accept the title. III. 180

Money agreed to be laid out in land
shall be taken as land, and go to the
heir; and no difference where the
money thus agreed to be laid out and
settled, is deposited itk the hands of
trustees, and where it remains in the
hands of the covenantor; the agree-
ment binding in both cases^ and mak-
. ing it as land. III. 211

Whatever for a valuable consideration
is covenanted to be done shall, in
equity, be looked on as done : thus
money agreed to be laid out in land
shall be tdcen as land ; eti converso.

III. 215

A*^t fother articles with a carpenter to
pay him lOOOL to build a house on
his estate ; the carpenter covenants to
build it, A, dies ; the heir of A. shall
compel the building of the house, and
the executor to pay for it III. 223

Though by a deed 5L per cent per ann.
was agreed to be allowed, yet it ap-
pearing that the money lia4 been

A TABLE OF THE PRINCIPAL MATTERS.

' placed in the gfoteroment fands,
which yielded bat 4/. per cent^ the
coart reduced the interest to 4/. per
cent II L 327

MyOOOL IB covenanted to be laid out
in land ; the money need not be laid
out altogether upon one purchase, but
if laid out at several times it is suffi-
cient; and if the covenantor dies,
having after the covenant purchased
some lands wliich are left to descend,
this will be a satisfaction pro iemto.

III. 228

An agreement was signed by the parties,
and by consent made an order of
court, to submit to such decree as the
court should make, and neither party
to bring his appeal : yet the cause was
allowed to be reheard. III. 242

An executor in trust, who had no lega-
cy, and where the execution of the
trust was likely to be attended with
trouble, at first refused, but after-
wards agreed with the residuary le-
gatees, in consideration of 100 gui-
neas^ to act in the executorship, and
he dying before the execution of the
trust was completed, his executors
brought a bill to be allowed these
100 guineas out of the trust money in
their hands { the court disallowed the
demand. III. 251, 262 (N)

An attorney, on behalf of his client the
defendant, promises to pay bOOL to
the plaintiff; this being done by the
authority of the client, the attorney
is not liable, but only the client.
' Secuiy if the attorney had no autho-
rity from his client to make this en-
gagement in. 277

Brokers or factors, who act [or agree]
for their principals, not liable in their
own capacities. Ill* 279

A trust estate was decreed to be sold
for the payment of debts and legacies,
and to be sold to the best purchaser.
A» articles to buy the estate of the
trustees^ and brings a bill to compel
them to perform the contract. The
trustees by their answer disclose the
matter ; the court will make no new
decree, but leave th« former decree
to be pursued. IIL 282

Agreement paroli Statute o/FrandM
and Perjuriei.

An agreement made by the husband be-
fore marriage, without writing, that
the wife's estate should be all of it
enjoyed by her to her separate use, is
within the statute of frauds. L 618

One alters a draught with his own hand,
this is not a signing to take it out of
the stotute of frauds, though the seller
afterwards executes the conveyance
and (the estate being in Middlesex)
causes it to be registered. L770

A letter from a father to his daughter,
by which he agrees to give her 3000/.
portion, and this not shewn to the
man who afterwards marries her, does
not take the promise out of the statute
of frauds. II. 65

The Judges equally divided on this
question, whether a contract for stock
be within the statute of frauds, which
mentions goods, wares, and merchan-
dices, so as to require the contract to
be in writing, or earnest money to be
paid. II. 308

Agreement underhand.

The father covenants to settle an estate
on the marriage of his son, who pri«
vately agrees to pay so much out of
it to the father; the heir being in
such case under the awe of his parent,
and supposed not to act freely, eqoity
will relieve against this private agree-
ment. 1. 121

A son on his marriage is to have 3000iL
portion with his wife, and privately
and without notice to his parents,
who treated for the marriage, gives a
bond to the wife's father to pay back
1000/. of the portion seven years
afterwards ; this bond void in equity,
and will not be made better by being
assigned to creditors. 1. 496

If on the consent of a wife and her
trustees, and in order to a composi-
tion with the husband's creditors, the
court orders part of the trust-money
to be paid to the creditors, they con-
senting to discharge him of the debts;
any private notes, &c taken by any
of the creditors for part of their debts,

A TABLE OF THE PRINCIPAL MATTERS.

Bit

bejond their share with the rest of
the creditors, will be set aside.

I. 768

See more ander title Marriage brocage

bonds*

Underhand Agreement y in what Case
the Court refused to set one aside*

A* treated for the marriage of his son ;
aod in the settlement on the son, there
was ap ower reserved to the faUier to
jointure any wife whom he should
marry, in %QOL per annum^ paying
10001. to the son. The father treat-
ing abont marrying a second wife,
the son agreed with the second wife's
relations to release the 1000/L, and
did release it; but took a private
bond from the father for the payment
of this 1000^ Equity would not set
aside this bond, because it would be
injurious to the first marriage, which
being prior in time was to be pre-
ferred. IIL 66

Agreement when to be performed in
specie, and when not.

By a settlement A. is made tenant for
life, remainder to the heirs of his body
by his wife, and in the same deed A.
covenants not to suffer a recovery,
but that the lands shall be enjoyed
according to those limitations ; after-
wards A> suffers a recovery and de-
vises these lands ; on a bill brought
for a specific performance of the co-
venant, it was decreed that the lands
def ised were not affected, though the
covenant was good to bind the assets ;
and such covenant being at first ac-
cepted, equity ought not to vary or
alter it. L 107

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Full text of "Reports of cases argued and determined in the High Court of Chancery, and of some special cases adjudged in the Court of King's Bench [1695-1735]"

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