REPORTS
AND
CASES
Taken
and
Adjudged
in
the
COURT
of
CHANCERY
In
the
REIGN
of
King
CHARLES
II.
Every
contra
Gold
,
20
Car.
2.
fo.
921.
THE
Bill
is
to
be
Relieved
for
two
Legacies
of
1500
l.
apiece
,
which
the
Plaintiff
claims
as
Administratrix
to
her
Daughters
,
Susanna
and
Martha
Every
;
given
and
secured
to
them
by
several
Conveyances
,
and
by
the
last
Will
of
William
Every
their
Grandfather
.
The
Case
is
(
viz.
)
Portions
raised
by
Deed.
That
the
said
William
Every
the
Grandfather
,
in
consideration
of
a
Marriage
between
William
Every
his
Son
and
the
Plaintiff
Martha
,
a
Daughter
of
Sir
John
Pool
,
by
Deed
22
April
,
7
Car.
1.
did
provide
,
That
if
William
his
Son
should
die
without
Issue
male
by
him
on
the
body
of
the
said
Plaintiff
Martha
,
and
should
have
two
Daughters
by
the
Plaintiff
Margaret
,
then
living
;
or
if
the
said
William
should
fail
to
have
issue
Male
which
should
be
living
,
until
the
same
Daughters
should
respectively
attain
18
years
of
Age
,
or
be
married
,
that
then
the
Recoveror
therein
named
should
stand
seised
of
the
Premisses
,
to
the
use
of
the
Recoverors
and
their
Heirs
,
for
the
raising
1500
l.
apiece
for
the
Portions
of
the
said
Daughters
,
and
20
l.
a
piece
per
annum
for
each
of
their
Maintenance
in
the
mean
time
,
to
be
paid
at
their
respective
Ages
of
18
years
or
days
of
Marriage
,
which
should
first
happen
;
and
if
either
of
the
said
Daughters
should
die
before
that
Age
or
Marriage
,
the
Portion
of
her
so
dying
to
be
distributed
to
the
Survivor
;
and
if
all
the
said
Daughters
should
die
,
their
Portions
not
paid
or
payable
,
then
the
same
should
be
paid
to
the
next
Heir
of
William
Every
the
Grandfather
.
That
William
Every
,
the
Son
,
New
Provision
by
a
second
Deed
,
and
a
Will
thereupon
.
had
Issue
by
the
Plaintiff
one
Son
named
William
,
and
two
Daughters
,
the
said
Susan
and
Martha
,
and
by
Deed
of
Bargain
and
Sale
,
and
Release
thereupon
,
both
dated
in
December
,
1651
;
in
which
Release
,
so
much
of
the
Tripartite
Indenture
as
relates
to
the
Daughters
Portions
is
recited
.
William
Every
,
the
Grandfather
,
Conveys
to
Gold
,
Doble
and
Holloway
,
and
their
Heirs
,
Lands
in
Somersetshire
,
to
the
use
of
William
the
Grandfather
for
life
,
and
after
to
Gold
,
Doble
and
Holloway
for
200
years
,
with
other
Remainders
over
upon
Trust
out
of
the
Profits
,
or
by
granting
Leases
or
Estates
to
pay
his
Debts
first
;
and
then
for
raising
to
and
for
the
said
Susan
and
Martha
,
so
much
Mony
as
should
supply
and
advance
their
respective
Portions
,
to
them
severally
thereafter
to
be
given
by
William
the
Grandfather
,
either
ready
Mony
or
otherwise
,
to
be
limited
by
any
act
thereafter
to
be
executed
in
his
life
time
,
or
by
his
last
Will
,
to
the
Sum
of
1500
l.
apiece
,
together
with
20
l.
per
annum
,
until
the
said
1500
l.
apiece
should
be
paid
unto
them
;
the
same
to
be
in
satisfaction
of
all
Moneys
that
they
might
claim
by
force
of
the
said
Indenture
Tripartite
,
with
Proviso
,
That
if
the
said
William
the
Grandfather
should
,
by
Will
or
otherwise
,
appoint
them
1500
l.
apiece
,
or
1500
l.
to
the
survivor
of
them
,
for
their
Portions
with
such
yearly
Maintenance
,
as
aforesaid
,
so
as
the
same
should
be
well
and
truly
paid
unto
them
accordingly
:
Or
,
if
before
such
portions
should
be
paid
,
the
said
William
Every
their
Brother
should
die
without
Issue
Male
,
whereby
the
said
premisses
should
be
charged
for
raising
of
Portions
and
Maintenance
aforesaid
;
that
then
the
Trustees
should
not
levy
the
Portions
by
that
Indenture
limited
,
other
than
what
should
be
paid
in
the
life
time
of
William
Every
their
Brother
.
And
it
is
thereby
declared
,
that
in
case
the
said
Susanna
or
Martha
,
or
either
of
them
,
should
die
before
their
Portions
(
in
and
by
the
said
last
Indenture
to
them
limited
)
should
become
due
and
payable
to
them
,
that
then
the
said
portion
and
portions
of
them
or
either
of
them
so
dying
,
should
not
go
or
be
to
the
survivor
of
them
,
or
to
any
the
Executors
,
Administrators
or
Assigns
of
them
,
or
either
of
them
;
but
should
go
to
whom
the
said
William
the
Grandfather
by
Writing
or
Will
should
appoint
,
and
for
want
thereof
to
his
Executors
or
Administrators
.
And
it
is
further
declared
,
That
the
said
Susan
and
Martha
shall
not
have
any
benefit
,
in
case
that
they
,
or
any
other
for
them
,
should
take
any
advantage
or
benefit
by
means
of
the
said
Indenture
Tripartite
,
or
any
Proviso
therein
contained
.
And
then
,
the
9th
of
March
,
1651
,
William
the
Grandfather
makes
his
Will
,
therein
reciting
▪
that
he
had
by
several
Deeds
,
all
dated
Feb.
21.
Car.
1.
granted
to
Knight
,
Cade
,
Webber
and
Ford
,
certain
Lands
in
the
County
of
Dorset
,
for
terms
of
years
,
determinable
upon
the
death
of
certain
persons
therein
mentioned
,
upon
trust
and
for
the
use
and
benefit
of
such
person
or
persons
to
whom
he
should
by
his
last
Will
give
,
limit
,
or
appoint
the
same
:
And
by
his
Will
,
gave
,
limited
and
appointed
all
the
said
Estates
and
Terms
so
by
him
granted
to
the
said
Knight
,
Cade
,
Webber
and
Ford
,
to
the
Defendants
Gold
and
Doble
,
in
Trust
,
that
the
said
Gold
and
Doble
,
or
the
survivor
of
them
,
or
the
Executors
or
Administrators
of
the
survivor
of
them
,
should
dispose
of
all
the
Rents
and
Profits
of
the
said
Lands
,
or
should
otherwise
sell
,
assign
and
convey
the
said
Estates
and
Terms
,
as
to
them
should
seem
most
convenient
,
towards
the
raising
of
1500
l.
apiece
to
the
said
Susan
and
Martha
:
And
did
thereby
give
and
appoint
to
each
of
the
said
Susan
and
Martha
900
l.
to
be
paid
unto
them
severally
out
of
his
personal
Estate
,
whereof
he
should
die
possessed
,
accounting
therein
all
such
Moneys
which
he
had
or
should
lend
upon
the
Specialties
taken
in
the
Names
of
Gold
and
Doble
,
towards
the
further
raisings
of
their
said
Portions
unto
1500
l.
apiece
,
having
(
as
by
his
Will
is
expressed
,
by
his
Deed
dated
the
last
day
of
December
then
last
past
)
mad
provision
for
advancing
their
said
Portions
to
the
Value
out
of
his
Lands
in
Com'
Somerset
;
which
said
Portions
his
last
Will
and
meaning
was
,
should
be
paid
unto
them
the
said
Susan
and
Martha
severally
,
at
their
respective
Ages
of
21
years
,
or
sooner
,
if
they
should
be
respectively
Married
with
the
Consent
of
the
said
Gold
and
Doble
,
or
the
Survivor
of
them
;
with
a
Proviso
,
That
if
William
Every
his
Grandson
,
should
happen
to
die
without
Issue
Male
of
his
Body
lawfully
begotten
,
before
the
said
respective
Portions
should
become
payable
to
the
said
Susan
and
Martha
,
according
to
the
time
before
limited
,
whereby
the
said
Susan
and
Martha
should
be
Intituled
to
1500
l.
apiece
,
by
virtue
of
the
said
Indenture
Tripartite
,
made
upon
his
deceased
Son's
Marriage
;
then
the
said
Legacies
or
appointments
of
Portions
unto
Susan
and
Martha
thereby
made
should
be
void
,
and
of
his
Will
made
Gold
and
Doble
Executors
.
And
the
Plaintiff
,
as
Administratrix
of
her
said
two
Daughters
,
Susan
and
Martha
,
exhibited
her
Bill
against
Gold
and
Doble
,
Executors
of
William
the
Grandfather
,
and
Webber
the
surviving
Trustee
in
the
Deed
of
the
Lands
in
Somerset
,
and
against
John
Every
,
the
Heir
in
Tail
of
William
the
Grandfather
,
and
seeks
to
be
Relieved
upon
the
Deeds
and
Will
before-mentioned
,
for
the
1500
l.
apiece
,
given
to
Susan
and
Martha
her
Daughters
.
The
Defendants
say
,
That
William
the
Grandfather
died
in
the
life
time
of
William
the
Grandson
,
and
that
the
personal
Estate
of
William
the
Grandfather
came
to
4000
l.
and
that
William
Every
the
Grandson
was
Buried
23
Nov.
1660
,
and
was
about
20
years
old
when
he
was
Buried
;
and
Susan
,
the
Plaintiffs
Daughter
,
was
Buried
25
July
1655
,
and
was
about
18
years
old
when
she
was
Buried
;
and
Martha
the
Plaintiffs
Daughter
was
Buried
4
July
1660
,
and
was
about
20
years
old
when
she
was
Buried
;
and
it
appears
there
was
sufficient
Personal
Estate
to
satisfie
the
several
Portions
demanded
.
Which
Case
the
Master
of
the
Rolls
having
considered
,
and
upon
the
Hearing
before
him
,
Declared
,
That
he
was
satisfied
the
1500
l.
apiece
,
by
the
Deed
and
Will
aforesaid
,
for
Portions
to
Susan
and
Martha
,
Daughters
of
the
Plaintiff
,
was
a
Debt
or
Duty
well
fixed
in
them
by
the
said
Deeds
and
Will
,
and
by
their
Deaths
did
accrue
and
belong
to
the
Plaintiff
their
Mother
,
as
Administratrix
to
them
,
did
Decree
the
same
should
be
paid
accordingly
.
Which
Opinion
and
Decree
the
Defendants
appealed
to
the
Lord
Keeper
,
who
being
assisted
with
Judges
,
and
upon
reading
the
Deeds
and
Will
aforesaid
,
were
all
clear
of
Opinion
,
That
the
Indenture
Tripartite
,
A
Prior
Deed
of
Settlement
barred
by
a
subsequent
Deed
,
and
New
provisions
made
for
Portions
.
of
27
June
7
Car.
1.
is
not
,
as
the
Case
now
stands
,
material
or
conducing
to
the
state
of
the
Case
,
or
to
the
limitation
of
the
Time
for
payment
of
the
Portions
;
for
that
the
same
is
by
Deed
of
Bargain
and
Sale
,
and
Release
thereupon
in
1651.
barred
,
and
a
New
provision
made
for
raising
the
said
Portions
in
such
manner
as
he
should
limit
by
any
act
in
his
life
time
,
or
by
his
last
Will
.
By
which
Deed
the
Survivorship
between
the
two
Daughters
is
barred
,
and
a
provision
made
,
That
if
either
of
them
die
in
the
life
time
of
William
the
Grandson
,
the
Portion
of
her
so
dying
shall
not
go
to
her
Executors
,
but
to
the
Grandson
.
And
William
the
Grandfather
,
having
by
his
Will
of
the
9th
of
March
,
1651.
wherein
he
recites
the
Deed
of
Decemb.
1651.
limited
and
appointed
900
l.
apiece
to
be
paid
to
his
Daughters
severally
out
of
his
personal
Estate
,
towards
the
raising
their
Portions
to
1500
l.
apiece
,
having
(
as
is
recited
)
made
provision
by
his
Deed
dated
the
last
of
December
,
1651
,
for
advancing
their
Portions
to
that
Value
.
And
he
doth
by
his
Will
declare
and
appoint
,
that
such
Portions
should
be
paid
unto
them
the
said
Susan
and
Martha
severally
,
at
the
respective
Ages
of
21
years
,
A
Deed
and
a
Will
construed
as
one
entire
provision
,
or
limitation
,
how
Portions
should
be
raised
.
or
sooner
if
they
should
be
married
;
and
both
of
them
dying
unmarried
before
they
or
either
of
them
attained
the
Age
of
21
,
in
the
life
time
of
William
the
Grandson
:
And
the
said
Deed
of
Decemb.
1651.
relating
to
the
Will
,
and
both
of
them
making
one
entire
provision
and
limitation
of
the
said
Portions
,
how
the
same
shall
be
raised
,
and
what
time
paid
.
His
Lordship
and
the
Judges
were
all
clear
of
Opinion
,
there
was
no
ground
for
the
former
Decree
made
by
the
Master
of
the
Rolls
,
or
pretence
of
Claim
to
either
of
the
said
Portions
of
1500
l.
by
the
Plaintiff
,
as
Administratrix
to
Susan
and
Martha
,
and
discharged
the
Decreed
and
dismist
the
Bill
.
Beauchamp
contra
Silverlock
,
20
Car.
2.
fo.
765.
THat
William
Beauchamp
,
Orphans
Mony
.
the
Plaintiffs
Father
,
being
a
Freeman
and
Citizen
of
London
,
by
his
last
Will
gives
a
Third
part
of
his
Lands
and
Tenements
whatsoever
and
wheresoever
,
to
the
Plaintiff
,
and
appointed
Dorothy
his
wife
Guardian
to
his
Children
,
and
made
her
sole
Executrix
,
and
Richard
Cambden
,
Robert
Cheslyn
,
John
Pace
and
Hogan
Hovell
,
Overseers
;
and
the
said
Dorothy
makes
her
Will
afterwards
,
and
gave
the
greatest
part
of
her
Estate
to
the
Plaintiff
,
and
Willed
her
Brother
Hogan
Hovell
,
and
her
Sister
Margaret
Cheslyn
,
and
the
Survivor
of
them
to
be
Guardian
to
her
Children
,
and
made
the
said
Hogan
Hovell
and
Margaret
Lovell
her
Executors
,
and
died
.
That
by
Articles
of
Agreement
between
Hogan
Hovell
,
Robert
Cheslyn
and
Margaret
his
wife
,
reciting
the
Will
of
Dorothy
Beauchamp
,
whereby
they
agreed
to
administer
the
Estate
to
the
best
benefit
of
the
Children
,
and
exhibit
a
true
Inventory
into
the
Prerogative
Court
,
and
that
they
should
with
the
consent
,
and
not
without
the
consent
and
knowledge
of
each
other
,
use
their
best
endeavours
to
get
in
the
Estate
,
and
not
to
release
any
part
of
it
without
each
others
consent
,
and
that
if
Hogan
Hovell
should
die
and
Margaret
survive
,
then
the
Executors
or
Administrators
of
Hogan
Hovell
to
make
a
true
account
to
Margaret
of
all
the
Estate
which
he
should
receive
of
the
said
Testators
,
and
pay
the
same
to
Margaret
,
or
to
such
person
who
shall
by
the
consent
of
the
said
William
Beauchamp
the
Plaintiff
,
be
chosen
as
Guardian
to
receive
the
fame
,
or
to
such
person
to
whom
by
Right
or
Law
the
same
ought
to
be
paid
,
and
the
same
Agreement
and
Covenant
is
,
if
the
said
Margaret
should
die
and
Hovell
survive
.
That
Robert
Cheslyn
died
,
and
the
said
Margaret
married
the
Defendant
James
Silverlock
.
And
Hogan
Hovell
possest
himself
of
the
greatest
part
of
the
personal
Estate
of
the
Plaintiffs
said
Father
and
Mother
,
and
received
the
profits
of
the
Lands
of
the
said
Margaret
,
receiving
only
Title
as
Executor
.
That
Hogan
Hovell
made
his
Will
and
Mary
his
wife
Executrix
;
and
afterwards
the
Guardianship
of
the
Plaintiff
,
the
Orphan
,
is
at
his
Friend's
Decree
committed
to
Sir
William
Bateman
.
That
the
said
Mary
Hovell
,
the
Executrix
of
Hogan
,
exhibited
an
Account
into
the
Orphans
Court
of
the
Mony
received
by
her
Husband
,
belonging
to
the
Plaintiff
,
out
of
which
Allowances
being
made
,
there
rested
due
to
the
Plaintiff
933
l.
and
that
afterwards
the
Defendant
Silverlock
and
Margaret
his
Wife
,
the
Surviving
Executrix
of
Dorothy
,
did
by
their
Deed
impower
Sir
William
Bateman
,
then
reputed
a
Man
of
great
Estate
,
to
receive
of
Mary
Hovell
,
Executrix
of
Hogan
Hovell
,
who
was
the
other
Executor
of
the
said
Dorothy
,
the
said
933
l.
to
the
use
of
the
Plaintiff
,
and
to
give
a
discharge
for
the
same
;
that
Sir
William
Bateman
received
it
accordingly
,
and
gave
a
Discharge
for
it
in
the
Name
of
Silverlock
and
his
Wife
,
and
gave
Security
after
that
to
the
Court
of
Aldermen
,
to
pay
the
Plaintiff
800
l.
That
Mary
Hovell
died
,
and
made
Executors
.
Executors
paying
in
Orphans
Mony
by
consent
of
Friends
and
Trustees
,
into
the
hands
of
Sir
W.
B.
Guardian
,
who
gave
Security
to
the
Court
of
Aldermen
,
not
to
be
charged
upon
the
Insolvency
of
Sir
W.B.
That
the
Plaintiff
did
several
times
after
he
came
of
Age
,
own
Sir
William
Bateman
to
be
his
Debtor
for
the
933
l.
that
the
Plaintiff
received
of
Sir
William
Bateman
440
l.
and
gave
Acquittances
for
it
;
the
first
was
on
the
4th
of
January
,
1663
,
the
last
on
the
25th
of
July
1666
;
that
the
Plaintiff
came
of
Age
in
Decemb.
1663
,
and
the
said
Sir
William
Bateman
became
Insolvent
at
Christmass
,
1666.
The
Question
touching
the
said
933
l.
claimed
by
the
Plaintiff
,
and
whether
the
same
should
be
charged
on
the
Defendant
Silverlock
,
and
surviving
Executor
of
Dorothy
Beauchamp
,
or
on
the
Defendant
Sir
William
Bateman
,
who
had
given
Security
to
the
Chamber
of
London
,
as
aforesaid
,
for
the
Plaintiffs
use
.
This
Court
as
to
the
Executors
of
Mary
Hovell
,
declared
,
there
was
no
reason
to
charge
him
therewith
;
but
that
they
ought
to
be
discharged
and
dismist
from
being
accountable
for
the
same
.
And
as
to
the
Defendant
Silverlock
,
the
Case
being
as
aforesaid
,
declared
that
there
was
a
clear
Intention
of
all
parties
to
perform
the
parties
aforesaid
,
and
that
the
said
Defendant
Margaret
never
received
any
Estate
during
Hogan
Hovell's
Life
,
and
that
Sir
William
Bateman
being
chosen
by
the
consent
of
the
Friends
of
the
Plaintiffs
,
and
by
the
Order
of
the
Court
of
Orphans
appointed
Guardian
to
the
Plaintiff
,
she
the
said
Margaret
gave
in
an
Account
to
the
Court
,
and
impower'd
Sir
William
Bateman
to
receive
the
Mony
,
who
before
had
given
Security
to
answer
the
same
,
or
the
greatest
part
thereof
;
and
when
the
Plaintiff
came
of
Age
,
he
admitted
and
owned
Sir
William
Bateman
to
be
his
Guardian
,
and
received
several
Sums
of
Mony
from
him
,
and
Sir
William
proved
not
Insolvent
till
three
years
after
;
and
so
there
being
no
default
in
the
said
Defendant
Margaret
,
there
was
no
reason
to
charge
her
the
said
Margaret
with
the
same
,
but
that
she
ought
to
be
dismist
and
discharged
from
the
same
.
But
Sir
William
having
given
Security
to
the
Court
of
Orphans
for
843
l.
part
of
the
said
933
l.
by
him
received
,
by
Order
of
the
Defendant
Margaret
,
and
that
for
the
residue
(
being
90
l.
10
s.
)
there
was
no
Security
given
by
the
said
Sir
William
.
This
Court
Declared
,
That
the
Defendant
Margaret
ought
to
be
charged
with
the
same
,
and
Decreed
accordingly
,
but
not
with
Interest
for
it
.
Windham
contr.
Love
,
20
Car.
2.
fo.
100.
21
Car.
fo.
741.
THe
Bill
is
,
Executory
Devise
.
That
the
Dean
and
Chapter
of
Winchester
,
June
17
Jac.
granted
the
premisses
to
Gilbert
Searle
,
his
Heirs
or
Assigns
,
during
the
Lives
of
the
two
Defendants
,
Barnaby
,
Robert
and
Nicholas
Love
,
Sons
of
Dr.
Nicholas
Love
,
and
to
the
survivor
of
them
in
Trust
for
the
said
Dr.
Love
:
And
the
said
Gilbert
Searle
,
in
July
17
Jac.
demised
the
said
premisses
to
the
said
Dr.
Nicholas
Love
for
99
years
,
if
the
said
Nicholas
,
and
the
Defendants
Barnaby
and
Robert
Love
the
Sons
,
or
any
of
them
should
so
long
live
;
and
the
said
Dr.
Love
:
had
the
Original
Lease
made
by
the
Dean
and
Chapter
,
delivered
to
him
by
the
said
Searle
;
and
afterwards
the
premisses
by
mean
Conveyances
came
to
Nich.
Love
the
Son
,
who
claimed
the
same
absolutely
to
himself
during
the
said
Term
,
and
was
the
reputed
Owner
thereof
.
And
in
the
late
Usurping
Times
,
the
said
Nicholas
the
Son
had
the
premisses
confirmed
to
him
,
and
the
said
Defendants
never
pretended
any
Right
,
possibility
,
or
Executory
Estate
in
the
said
premisses
after
the
death
of
the
said
Nicholas
the
Son
.
And
the
said
Nicholas
the
Son
,
by
Act
of
Parliament
declared
,
forfeited
his
Estate
to
His
Majesty
upon
account
of
Treason
,
and
His
Majesty
granted
the
premisses
to
the
Duke
of
York
and
his
Heirs
,
and
he
18
Car.
2.
granted
the
premisses
,
and
all
the
Writings
,
to
the
Plaintiffs
,
their
Executors
,
Administrators
and
Assigns
,
during
the
residue
of
the
term
.
The
Defendants
insist
,
That
the
said
Dr.
Love
,
the
Plaintiffs
Father
,
by
his
Will
,
15
Car.
1.
did
Devise
the
premisses
to
Dulcibella
his
Wife
for
Life
,
for
so
many
years
of
the
said
99
years
as
should
not
be
spent
in
her
Life
;
and
after
her
death
,
then
to
the
said
Nicholas
Love
,
the
Son
,
for
so
many
years
of
the
said
term
as
he
should
live
;
and
afrer
the
death
of
him
and
the
said
Dulcibella
unto
the
Defendant
Barnabas
,
his
Executors
,
Administrators
and
Assigns
for
all
the
residue
of
the
said
term
,
and
made
the
said
Dulcibella
his
Executrix
,
who
assented
the
said
Will
and
Executory
devise
,
and
she
enjoyed
the
premisses
during
her
life
;
and
after
her
dearh
,
which
was
about
1656
,
the
said
Nicholas
Love
the
Son
entred
,
and
by
virtue
of
the
Will
possessed
the
premisses
for
the
residue
of
the
said
term
as
was
not
spent
,
and
not
by
virtue
of
any
Assignment
,
nor
otherwise
than
the
said
Executory
devise
;
and
if
the
said
Nicholas
did
purchase
the
premisses
of
the
Usurpers
,
the
same
ought
not
to
prejudice
the
Defendant
Barnaby's
Right
and
Interest
in
the
premisses
by
the
said
Executory
devise
,
which
he
claimeth
after
the
death
of
Nicholas
the
Son
,
by
virtue
of
the
said
Will
of
his
Father
,
as
aforesaid
,
and
say
,
That
Nicholas
the
Son
had
no
other
Estate
therein
,
but
in
expectancy
of
the
death
of
Dulcibella
.
This
Court
referred
it
to
be
tryed
at
Law
upon
this
Issue
(
viz.
)
Whether
the
Defendant
Barnaby
,
by
the
Will
of
the
said
Dr.
Love
,
hath
or
shall
have
any
Estate
or
Interest
,
or
possibility
in
the
premisses
,
after
the
death
of
the
said
Nicholas
Love
,
the
Son
,
if
the
term
so
long
continue
.
The
said
Issue
was
tryed
,
Term
is
devised
to
N.
and
if
he
die
without
Issue
,
then
to
B.
this
is
a
void
Devise
to
B.
it
is
too
remote
a
possibility
.
where
a
Special
Verdict
was
found
,
That
Gilbert
Searle
being
possest
of
the
premisses
for
the
Lives
of
Nicholas
,
Robert
,
and
the
Defendant
Barnaby
,
demised
the
premisses
to
Dr.
Nicholas
Love
for
99
years
,
if
either
of
the
Three
live
so
long
;
and
that
the
said
Dr.
afterwards
made
his
Will
,
and
devised
the
premisses
to
Dulcibella
his
Wife
,
for
her
life
,
and
after
to
Nicholas
his
Son
for
his
Life
,
and
if
he
died
without
Issue
,
then
to
the
Defendant
Barnaby
,
and
made
the
said
Dulcibella
Executrix
,
who
assented
to
the
said
Devise
:
That
in
Easter
Term
last
the
Special
Verdict
was
Argued
in
the
Kings-Bench
,
and
upon
great
Debates
Judgment
was
given
for
the
Plaintiff
.
This
Court
Declared
,
That
the
Defendant
hath
no
Right
or
Title
to
the
premisses
;
and
Decreed
the
Plaintiffs
,
their
Heirs
and
Assigns
,
to
enjoy
against
the
Defendant
.
Vide
this
Case
well
debated
at
Common
Law
,
in
Siderfin's
Reports
,
p.
450.
Windham
and
Love
.
Moseley
cont
.
Maynard
,
20
Car.
2.
fo.
999.
&
22
Car.
2.
fo.
274.
THis
Suit
is
,
Bill
to
have
a
Will
decreed
.
to
have
the
Will
of
Sir
Edward
Moseley
Decreed
,
which
upon
a
Trial
hath
been
found
a
good
Will.
This
Court
,
with
the
assistance
of
Judges
declared
.
They
saw
no
Cause
to
decree
the
said
Will
.
This
Cause
also
is
touching
Alteration
of
Possession
.
The
Point
touching
the
Decreeing
of
the
said
Will
Heard
and
Argued
again
.
The
Plaintiff
insisted
,
That
it
is
the
proper
Justice
of
this
Court
,
to
settle
Estates
in
peace
and
quietness
,
and
pressed
to
have
the
Will
decreed
;
especially
,
for
that
no
Purchasor
would
meddle
under
the
Title
of
the
Will
,
and
that
the
Plaintiff
was
by
the
Will
to
raise
10000
l.
to
be
paid
according
to
the
directions
of
the
said
Will
by
a
time
therein
prefixed
,
or
else
he
forfeited
his
Estate
therein
.
But
the
Defendants
insisted
,
It
is
altogether
improper
to
decree
a
Will
in
this
Court
,
especially
to
the
disinheriting
of
a
Feme
Covert
,
and
her
Son
an
Infant
,
and
that
this
Court
had
refused
to
decree
the
fame
in
a
former
Order
with
Judges
.
This
Court
Ordered
a
New
Bill
to
be
brought
.
The
Point
touching
the
Condition
in
the
Will
,
Proofs
in
an
Original
Cause
,
not
allowed
to
be
read
on
a
Bill
of
Review
.
setled
on
a
Bill
of
Review
,
the
Proofs
in
the
Original
Cause
not
allowed
to
be
read
.
Macklow
contra
Wilmot
,
20
Car.
2.
fo.
548.
THe
Plaintiff
would
have
the
Defendant
examined
on
Interrogatories
,
Defendant
not
to
be
Examined
upon
Interrogatories
.
to
discover
Deeds
and
Writings
,
and
to
be
examined
to
other
Matters
.
The
Defendant
insists
,
That
what
the
Plaintiff
now
moves
for
may
be
of
dangerous
consequence
,
being
to
discover
the
Estates
of
Purchasors
,
to
whom
the
said
Defendants
have
sold
most
of
the
Lands
in
question
,
and
it
is
now
long
since
the
Cause
was
heard
,
and
many
Attendances
on
the
Master
,
and
Examinations
before
him
,
and
the
Decree
is
Inrolled
by
the
Plaintiff
;
wherefore
the
Defendant
ought
not
to
be
examined
on
Interrogatories
,
being
to
put
up
the
Order
on
Hearing
,
in
a
Point
,
that
the
Plaintiff
at
the
Hearing
did
not
think
fit
to
move
for
.
This
Court
,
in
regard
the
Examining
of
the
Defendant
on
Interrogatories
,
is
omitted
out
of
the
Decree
,
this
Court
would
not
now
Order
it
.
Dominus
Read
contra
Read
,
20
Car.
2.
fo.
146.
L.B.
THis
Case
is
touching
the
granting
a
Ne
Exeat
Regnum
against
the
Defendant
.
Ne
exeat
Regnum
.
The
Defendanr
insisted
,
that
the
said
Writ
ought
not
to
be
issued
out
,
for
that
the
Affidavit
of
the
Lady
Read
did
not
contain
ground
sufficient
to
warrant
it
.
For
that
the
Writ
is
a
Writ
of
Prerogative
on
behalf
of
the
Crown
;
and
the
reason
of
granting
it
is
,
that
the
party
against
whom
it
is
prayed
intends
to
convey
away
some
considerable
Treasure
out
of
the
Kingdom
,
or
do
some
other
matter
prejudicial
to
the
King
or
his
Government
,
which
the
Affidavit
doth
not
specifie
;
and
if
that
were
,
yet
no
Writ
doth
regularly
lie
in
this
Case
against
a
Lay-man
to
find
Security
,
as
this
Writ
is
,
but
only
against
a
Clergy-man
;
neither
is
the
Writ
Indorsed
,
as
formally
it
ought
to
be
,
Supersedeas
.
and
therefore
ought
to
be
superseded
,
and
several
Cases
were
offered
,
and
Presidents
produced
on
the
behalf
of
the
Defendants
.
But
the
Plaintiff
insisted
,
The
Causes
of
a
Ne
exeat
Regnum
.
that
by
the
Affidavit
of
Sir
John
Read
,
the
Defendant
,
conveying
and
making
over
his
Estate
to
others
,
standing
out
an
Excommunication
and
absconding
his
person
,
and
giving
out
That
he
intends
to
go
beyond
the
Seas
,
the
said
Writ
is
well
warranted
;
and
for
Justification
thereof
several
Cases
and
Presidents
were
urged
;
and
it
appearing
that
the
only
matter
which
carries
any
countenance
or
pretence
of
irregular
issuing
the
Writ
,
that
it
ought
to
be
for
a
Clergy-man
to
find
Security
,
and
not
for
a
Lay-man
,
is
an
Opinion
taken
up
in
a
Posthumous
Work
of
the
Lord
Coke
,
3
Inst.
179.
being
called
his
3d
Institutes
,
contrary
to
the
general
Authorities
,
Presidents
and
Practice
of
granting
Writs
of
Ne
exeat
Regnum
in
former
and
later
Times
,
which
are
usual
against
a
Lay-man
to
find
Security
,
as
well
as
a
Clergy-man
,
or
else
there
can
be
no
Writ
at
all
to
be
found
in
the
Register
against
a
Lay-man
to
find
Security
in
any
case
,
Lay-men
to
find
Security
,
as
well
as
Clergy-men
,
upon
a
Ne
exeat
Regnum
.
or
any
Ne
exeat
Regnum
against
a
Lay
man
;
neither
is
there
in
the
Register
any
such
form
of
Indorsing
the
Writ
,
as
is
suggested
,
but
what
is
inserted
in
the
Register
is
but
a
Note
of
some
Observer
.
So
that
his
Lordship
,
with
the
Judges
,
are
of
Opinion
upon
the
whole
Matter
,
that
there
is
no
ground
to
grant
a
Supersedeas
of
the
said
Writ
of
Ne
exeat
Regnum
,
but
that
the
same
was
well
granted
,
and
ought
to
stand
,
and
Ordered
it
accordingly
.
Dixon
contra
Read
,
20
Car.
2.
fo.
46.
&
561.
THe
Bill
is
,
No
relief
against
a
Bond
entred
into
to
a
Solicitor
,
to
pay
100
l.
when
a
Verdict
should
be
recovered
.
That
the
Plaintiff
being
Sued
by
the
Defendant
Read
in
the
Sheriffs
Court
in
London
,
upon
a
Bond
of
200
l.
for
the
payment
of
100
l.
to
the
said
Defendant
by
the
Plaintiff
,
when
the
said
Defendant
being
a
Solicitor
should
recover
a
Verdict
on
the
behalf
of
one
Thrale
;
upon
which
Bond
,
though
the
Defendant
was
so
far
from
being
instrumental
in
getting
any
such
Verdict
,
that
he
acted
for
Thrale's
Adversary
;
yet
the
Defendant
hath
gotten
a
Verdict
on
the
said
Bond
:
Whereupon
the
Plaintiff
removed
the
Cause
into
the
Mayor's
Court
,
and
from
thence
into
this
Court
by
Certiorari
,
and
the
Plaintiff
(
according
to
proceedings
in
such
cases
)
proved
his
Suggestions
:
Yet
the
Defendant
,
without
a
Procedendo
,
Procedendo
hath
removed
the
Proceedings
back
,
out
of
the
Mayor's
Court
into
the
Sheriffs
Court
,
and
hath
there
taken
out
Execution
,
and
taken
the
Plaintiffs
Bail
thereupon
and
levied
102
l.
This
Cause
was
heard
by
the
Master
of
the
Rolls
,
who
saw
no
cause
in
Equity
to
Relieve
the
Plaintiff
against
the
Penalty
and
Interest
of
the
said
Bond.
This
Cause
came
to
a
Re
hearing
before
the
Lord
Chancellor
,
being
assisted
with
the
Lord
Chief
Justice
Hales
,
who
were
of
Opinion
with
the
Master
of
the
Rolls
,
and
confirmed
his
Decree
.
Smith
contra
Holman
,
20
Car.
2.
fo.
192.
THat
the
Defendant
caused
the
Plaintiffs
Bail
at
Law
to
be
Arrested
soon
after
the
Plaintiff
and
Defendant
had
joyned
in
a
Commission
for
Examining
of
Witnesses
,
which
was
for
the
same
Matter
here
in
question
;
and
also
about
two
days
before
the
Execution
of
the
Commission
,
the
said
Defendant
caused
the
Plaintiff
to
be
Arrested
when
he
was
preparing
for
the
said
Commission
,
so
that
the
Plaintiff
could
not
execute
the
same
.
The
Plaintiff
prays
,
That
the
Defendant
,
for
such
his
Abuse
,
Plaintiff
two
days
before
the
Commission
,
for
Examination
of
Witnesses
,
was
arrested
by
the
Defendant
,
and
in
Execution
;
ordered
to
be
discharged
,
and
the
Defendant
to
pay
Costs
,
and
be
at
the
charge
of
a
New
Commission
.
being
against
the
ancient
Priviledge
of
this
Court
to
Suitors
,
that
are
in
the
management
of
their
Causes
in
this
Court
,
may
stand
Committed
,
and
pay
the
Cost
of
the
last
Commission
,
and
damages
sustained
by
the
said
Arrest
.
The
Defendant
insisted
,
he
was
ignorant
of
such
Priviledge
,
and
that
the
Plaintiff
was
now
in
Execution
.
This
Court
,
in
favour
of
the
Desendant
,
spared
the
Commitment
,
but
ordered
him
to
pay
the
Plaintiff
Costs
of
the
last
Commission
;
as
also
his
costs
and
damages
sustained
by
reason
of
the
Arrest
,
Imprisonment
and
Prosecution
thereon
,
and
referred
it
to
a
Master
of
this
Court
to
Tax
,
and
that
the
Plaintiff
giving
a
new
Judgment
for
the
debt
in
question
,
the
Defendant
shall
at
his
the
Defendants
Charges
,
presently
release
and
discharge
the
said
Plaintiff
out
of
Execution
,
and
the
Defendant
to
be
at
the
charges
of
a
New
Commission
,
and
the
Plaintiff
to
take
an
Injunction
till
Hearing
of
this
Cause
.
Wiseman
contra
Foster
,
20
Car.
2.
fo.
731.
THe
Plaintiffs
Father
,
George
Brigges
,
by
Will
devised
to
the
Plaintiff
Ann
,
500
l.
for
her
Portion
,
which
was
appointed
to
be
paid
to
her
at
the
Age
of
One
and
twenty
years
,
or
day
of
Marriage
,
and
made
the
Defendant
,
Dame
Ann
Foster
,
his
then
Wife
,
and
his
Son
George
,
his
Executors
;
and
by
a
subsequent
Clause
in
his
Will
,
declared
,
That
it
should
be
in
the
power
of
his
Executors
,
to
order
and
dispose
of
the
Plaintiffs
Portion
,
according
to
their
discretion
,
to
the
use
of
the
rest
of
the
Children
,
unless
the
Plaintiff
should
marry
by
the
advice
and
consent
of
the
Defendant
,
Dame
Ann
,
and
others
,
who
were
Overseers
of
his
Will
,
or
the
greater
part
of
them
:
And
the
Defendants
insist
,
That
the
Plaintiff
hath
Married
without
such
consent
,
therefore
ought
to
have
but
250
l.
Whereas
the
Plaintiff
insists
,
That
the
said
Clause
was
intended
only
in
terrorem
and
awe
to
the
Plaintiff
Ann
,
to
induce
her
to
take
heed
how
she
married
,
and
not
that
she
should
lose
any
part
of
her
Portion
,
so
as
she
married
one
who
deserved
the
same
,
which
she
hath
done
with
the
consent
of
the
Major
part
of
the
Overseers
.
The
Defendants
insist
,
Portion
to
be
paid
on
Marriage
,
with
consent
of
,
&c.
Some
consent
,
and
some
not
;
yet
decreed
to
be
paid
.
That
the
Plaintiff
marrying
,
as
aforesaid
,
ought
to
have
but
250
l.
as
by
the
Memorandum
in
the
Will
,
and
the
rest
to
be
distributed
amongst
the
other
Children
of
the
Testator
.
But
the
Plaintiff
insists
,
That
in
this
case
there
was
not
by
the
Will
any
devise
over
to
the
said
other
Children
.
This
Court
,
upon
Reading
the
Proofs
touching
the
approbation
of
the
Major
part
of
the
Overseers
,
and
their
consent
to
the
Plaintiffs
marriage
,
decreed
the
Defendants
to
pay
the
Five
hundred
Pounds
and
Damages
.
Rowley
contra
Lancaster
,
21
Car.
2.
fo.
993.
THat
Matthew
Lancaster
bequeathed
to
John
Creeke
100
l.
thus
,
(
viz.
)
Will
.
50
l.
Devise
of
Mony
to
be
paid
at
a
Day
to
come
.
Devisee
dies
before
the
Day
;
yet
payable
to
his
Administrator
.
in
one
Month
after
the
Expiration
of
his
Apprenticeship
,
and
the
other
50
l.
within
one
whole
year
after
the
Expiration
of
the
said
Apprenticeship
,
and
made
the
Defendant
Executor
:
That
the
Apprenticeship
expired
29
Sept.
1664.
but
John
Creeke
dying
before
the
Legacy
was
paid
,
the
Defendant
refuses
to
pay
it
to
the
Plaintiff
,
the
Administrator
of
the
said
John
Creeke
.
The
Defendant
insists
,
That
he
paid
the
50
l.
due
within
a
Month
after
the
Expiration
of
the
Apprenticeship
,
and
that
the
said
John
Creeke
died
before
the
whole
year
after
the
Expiration
of
his
Apprenticeship
was
expired
,
and
therefore
the
other
50
l.
was
not
due
to
the
Plaintiff
.
This
Court
being
assisted
with
Judges
,
were
clear
of
Opinion
,
That
the
said
Legacy
was
Debitum
in
praesenti
solvend
in
futuro
,
and
decreed
the
said
50
l.
to
be
paid
to
the
Plaintiff
with
damages
.
Fry
contra
Porter
,
21
Car.
2.
fo.
568.
THat
the
Earl
of
Newport
,
Will
.
deceased
,
by
his
Will
devised
to
the
Plaintiff
the
Lady
Ann
,
the
Messuage
called
Newport
House
,
with
the
Appurtenances
,
thus
;
(
viz
)
I
do
give
and
bequeath
unto
the
Lady
Ann
,
Countess
of
Newport
,
my
Dear
Wife
,
all
that
my
House
called
Newport-House
,
and
all
other
my
Tenements
and
Hereditaments
whatsoever
in
Middlesex
,
for
her
Life
;
and
after
her
decease
,
I
do
give
and
bequeath
the
said
House
,
and
all
other
my
Tenements
and
Hereditaments
,
as
aforesaid
,
to
my
Grandchild
the
Lady
Ann
Knowles
,
the
Daughter
of
Nicholas
Earl
of
Banbury
,
by
the
Lady
Isabella
my
late
Daughter
,
and
to
the
Heirs
of
her
Body
lawfully
to
be
begotten
.
Provided
always
,
and
upon
Condition
,
that
my
said
Grandchild
,
the
Lady
Ann
Knowles
,
do
marry
with
the
consent
of
my
said
Wife
,
and
of
Charles
Earl
of
Warwick
,
and
Edward
Earl
of
Manchester
,
or
the
Major
part
of
them
.
And
in
case
the
said
Lady
Ann
Knowles
do
and
shall
marry
without
the
consent
of
my
said
Wife
,
and
the
Major
part
of
my
Trustees
aforesaid
,
or
shall
happen
to
depart
this
Life
without
any
Issue
of
her
Body
;
then
I
will
and
bequeath
all
the
said
premisses
unto
my
Grandson
George
Porter
,
Son
of
my
deceased
Daughter
,
the
Lady
Ann
,
late
Wife
of
Thomas
Porter
Esq
;
and
to
his
Heirs
for
ever
.
The
Bill
is
to
be
Relieved
against
the
Forfeiture
of
the
said
Estate
,
for
not
performing
the
said
Condition
in
the
Will
,
and
Marrying
against
the
consent
of
the
Trustees
and
the
Mother
:
Yet
the
said
Mother
was
told
,
That
the
Plaintiff
was
about
to
marry
,
and
said
nothing
to
the
contrary
;
whereupon
the
Plaintiff
married
and
hath
Issue
.
The
Plaintiff
insisting
,
That
if
any
Error
were
committed
in
Marrying
,
it
was
through
Ignorance
,
and
not
Obstinacy
,
she
the
Plaintiff
being
very
young
,
and
knew
not
of
the
Proviso
or
Condition
in
the
said
Will
;
and
it
would
be
very
unreasonable
to
make
the
happiness
of
the
Plaintiff
to
depend
upon
the
consent
of
Strangers
in
point
of
Marriage
,
to
put
it
into
their
power
to
keep
her
during
her
life
,
either
from
Marrying
,
or
from
her
Estate
,
and
thereby
make
them
Masters
of
her
Affection
or
Fortune
,
and
to
disinherit
her
and
her
Children
.
But
the
Defendant
insists
,
That
the
Reason
of
inserting
the
said
Proviso
into
the
said
Will
was
,
that
the
Plaintiff
the
Lady
Ann
might
be
disposed
of
in
Marriage
without
disparagement
,
and
therefore
that
she
should
marry
with
the
consent
of
the
said
Countess
and
the
two
Earls
,
or
the
Major
part
of
them
;
and
of
that
other
Clause
,
(
viz.
)
That
if
she
married
without
such
Consent
,
then
he
gave
the
said
House
and
Premisses
to
the
said
Defendant
George
Porter
the
Infant
,
and
his
Heirs
for
ever
;
and
that
the
said
Lady
Ann
having
Married
a
person
very
unequal
to
her
Fortune
,
and
without
such
Consent
,
as
aforesaid
,
having
little
or
no
Estate
,
had
made
a
wilful
breach
of
the
said
Proviso
or
Condition
in
the
said
Grandfathers
Will
;
Lands
devised
on
Condition
,
the
Devisee
marry
with
consent
,
and
limitation
over
.
Devisee
marries
without
Consent
;
she
shall
not
be
relieved
,
but
the
Land
decreed
to
the
remainder
Man
.
and
the
said
George
Porter
claims
the
said
House
to
him
and
his
Heirs
,
by
virtue
of
the
said
Condition
and
Limitation
over
to
him
by
the
said
Will
,
the
construction
whereof
is
to
be
made
out
of
the
Will
it self
,
and
not
otherwise
;
and
the
said
Lady
Ann
had
notice
of
the
said
Will
before
marriage
,
there
being
discourse
of
it
by
the
Trustees
to
her
,
and
so
the
Lady
Ann
ought
not
to
be
relieved
against
the
said
Forfeiture
or
Limitation
aforesaid
.
This
Court
,
with
the
Judges
and
on
perusal
of
Presidents
,
are
clear
of
Opinion
and
fully
satisfied
,
That
the
Plaintiff
ought
not
to
be
relieved
against
the
said
Forfeiture
,
and
that
the
same
was
such
as
ought
not
to
be
relieved
in
Equity
,
and
dismist
the
Plaintiffs
Bill
.
Vide
this
Case
in
Mod.
Rep.
p.
300.
with
Councels
and
Judges
Arguments
,
seriatim
.
Shalmer
contra
Tresham
,
21
Car.
2.
fo.
560.
THe
Bill
is
,
to
discover
the
Deeds
of
several
Lands
,
and
whether
they
were
not
made
in
Trust
,
and
whether
the
Debt
demanded
by
the
Plaintiff
,
were
not
mentioned
in
a
Schedule
thereunto
annex'd
.
The
Defendant
pleaded
,
Bill
to
discover
Settlements
in
Trust
.
Plea
,
That
the
Defendant
is
a
Scrivener
,
and
had
taken
Oath
,
not
to
discover
the
Secrets
of
his
Clients
.
Overruled
.
That
he
was
a
Scrivener
by
Profession
,
and
hath
taken
the
accustomed
Oath
that
Scriveners
do
before
they
are
made
Free
in
London
,
whereby
he
is
obliged
not
to
discover
the
Secrets
of
those
persons
business
that
employ
him
in
that
Trade
,
without
their
leave
;
and
that
he
was
employed
by
and
assisted
Sir
John
Langham
in
the
purchasing
of
the
said
Lands
,
and
the
Writings
concerning
the
premisses
he
drew
,
and
hath
the
Keeping
thereof
by
the
said
Sir
Johns
Direction
,
and
so
ought
not
to
discover
the
said
Writings
,
contrary
to
his
Trust
,
nor
any
thing
relating
to
this
Matter
.
This
Court
declared
,
That
the
Oath
of
a
Scrivener
doth
not
oblige
from
a
discovery
,
more
than
the
Oath
of
any
other
Free
man
of
London
:
And
if
it
had
been
in
the
case
of
a
Counsellor
at
Law
,
the
said
Plea
had
been
Insufficient
in
this
case
;
and
Overruled
the
Plea
,
saving
he
is
not
to
Answer
to
whom
he
paid
the
Purchase
Mony
.
Alford
cont
.
Pitt
,
21
Car.
2.
fo.
181.
THe
Plaintiffs
Suit
is
,
Demurrer
.
Remedy
at
Law
.
Award
.
to
have
the
benefit
of
an
Award
.
To
which
the
Defendant
demurred
,
and
says
,
That
the
Plaintiff
ought
to
take
his
Remedy
at
Law
.
This
Court
Overruled
the
Demurrer
.
Langton
&
al'
,
contra
Tracy
&
Astrey
,
21
Car.
2.
fo.
376.
THe
Bill
is
,
to
have
the
several
Debts
due
to
the
Plaintiffs
,
being
Creditors
of
the
Defendant
Roberts
,
paid
.
The
Case
is
,
(
viz.
)
That
Thomas
Roberts
conveyed
the
Mannor
and
Lands
in
question
to
the
Defendant
Tracy
for
payment
thereof
,
Payment
of
Debts
.
and
of
his
other
debts
;
but
before
that
Conveyance
to
Tracy
,
the
Defendant
Nicholas
standing
ingaged
as
Surety
for
the
said
Roberts
for
several
of
the
debts
,
the
said
Roberts
made
the
said
Nicholas
a
Lease
of
the
premisses
for
Sixty
years
at
a
Pepper-Corn
Rent
;
and
such
Lease
being
made
,
and
no
care
taken
for
satisfying
the
debts
,
the
Plaintiffs
Sue
the
said
Roberts
for
their
debts
,
so
to
avoid
such
Prosecution
,
made
the
aforesaid
Conveyance
to
Tracy
in
Fee
,
upon
Special
Trust
to
pay
all
his
debts
;
but
Tracy
combining
with
the
Defendant
Astrey
,
who
had
procured
the
said
Nicholas
to
assign
his
said
Lease
to
him
,
Notice
of
Trust
.
after
Notice
of
the
Trust
,
contrived
a
conveyance
of
the
premisses
from
Tracy
to
him
the
said
Astrey
by
way
of
Bargain
and
Sale
Inrolled
,
so
that
Astrey
pretends
himself
a
Purchasor
of
the
premisses
from
the
said
Thomas
Roberts
,
and
not
under
the
said
Deed
of
Trust
,
or
Lease
and
Assignment
,
and
pretends
the
Trust
is
destroyed
,
the
said
Conveyance
being
not
Inrolled
,
whereas
the
said
Deed
was
well
executed
,
and
the
Trust
accepted
,
by
which
the
said
Deed
cannot
in
Equity
be
made
void
until
payment
of
the
said
debts
.
The
Defendant
Astrey
insists
,
Deed
in
Trust
to
pay
debts
,
tho'
the
Creditors
are
not
Parties
,
and
no
Certainty
of
Debts
therein
appearing
;
yet
good
against
an
after-Purchasor
,
who
had
Notice
of
this
Trust
.
That
the
Deed
to
Tracy
for
the
payment
of
debts
was
a
void
Deed
,
as
against
a
Purchasor
,
there
being
no
Creditor
party
or
privy
thereto
,
nor
any
Schedule
of
Debts
thereunto
annexed
,
and
that
the
said
Conveyance
was
voluntary
,
and
made
only
between
Roberts
and
his
Wife
,
and
Tracy
,
and
the
Creditors
not
parties
thereto
;
and
that
by
the
said
Conveyance
,
Roberts
was
to
have
all
such
Mony
out
of
the
premisses
,
from
time
to
time
,
as
he
thought
fit
for
the
livelyhood
and
subsistence
of
himself
,
his
Wife
and
Family
,
and
that
the
said
Conveyance
to
Tracy
being
voluntary
,
Voluntary
Conveyance
.
and
in
its
nature
but
in
Trust
for
Roberts
,
and
Revokable
by
him
after
the
Conveyance
to
Astrey
;
and
Roberts
having
exhibited
a
Bill
against
Tracy
,
to
set
aside
the
said
Conveyance
,
Tracy
surrendred
the
same
to
Roberts
,
who
Revoked
it
,
and
both
Cancell'd
it
;
and
afterwards
Roberts
and
his
Wife
conveyed
the
premisses
to
Astrey
,
and
levied
a
Fine
thereon
.
But
the
Plaintiff
insists
,
That
after
the
Conveyance
to
Tracy
was
made
,
he
declared
he
would
pay
the
Plaintiffs
debts
,
which
is
proved
by
the
Plaintiff
Sir
John
Knight
.
The
Defendant
insists
,
One
of
the
Plaintiffs
a
Witness
.
Deposition
.
That
Sir
John
Knight
is
interessed
and
intituled
to
some
of
the
debts
in
question
,
and
continued
a
Plaintiff
throughout
the
Cause
,
and
is
not
struck
out
of
the
Bill
,
and
is
but
a
single
Witness
,
and
his
Evidence
denied
by
the
Defendants
Answer
,
and
therefore
his
deposition
ought
not
to
be
read
.
This
Court
declared
,
They
would
see
Presidents
where
a
Conveyance
made
voluntarily
for
payment
of
debts
,
and
no
Creditors
named
or
appearing
in
any
fix'd
certainty
of
the
persons
,
and
with
a
Proviso
for
the
Grantor
to
have
Maintenance
out
of
the
premisses
,
conveyed
for
himself
and
Family
,
without
limitation
of
how
much
;
whether
such
Conveyance
be
Revokable
by
the
Grantor
and
Grantee
.
This
Court
,
with
the
assistance
of
the
Judges
,
were
clear
of
Opinion
,
That
the
Deed
from
Thomas
Roberts
to
Tracy
,
and
the
Trust
thereby
created
,
were
made
and
treated
with
an
honest
Intention
to
pay
the
debts
of
the
said
Thomas
Roberts
,
and
that
the
same
was
not
fraudulent
,
Fraudulent
Deed
,
or
not
.
though
no
certainty
of
the
debts
appear
therein
;
but
the
same
being
made
on
a
Trust
,
which
was
a
good
foundation
,
and
a
just
and
honest
Consideration
,
and
none
of
the
Creditors
complaining
of
any
fraud
,
the
same
ought
to
be
taken
as
a
good
Deed
,
and
the
Defendant
Astrey
coming
in
under
this
Deed
,
and
having
Notice
of
this
Trust
,
and
paying
the
debts
under
it
,
ought
to
receive
no
countenance
in
this
Court
,
but
the
Estate
ought
to
be
charged
with
the
same
,
in
whose
hands
soever
the
same
shall
come
,
and
decreed
the
Deed
of
Purchase
from
the
said
Roberts
to
Astrey
be
set
aside
,
and
Astrey
to
account
for
the
Profits
,
&c.
and
the
Plaintiffs
,
and
all
the
Creditors
,
to
be
paid
their
debts
out
of
the
said
Estate
.
Eyre
contra
Good
&
al'
,
21
Car.
2.
fo.
211.
THe
Bill
is
to
be
relieved
against
a
Bond
of
a
1000
l.
Award
.
penalty
for
the
performance
of
an
Award
,
whereby
possession
and
profits
of
Lands
are
awarded
to
the
Defendant
.
The
Defendant
insists
,
That
there
was
no
surprize
in
the
said
Award
,
but
the
said
Award
was
by
the
direction
of
the
Plaintiffs
Friends
,
and
says
,
it
ought
not
to
be
set
aside
,
which
if
it
was
,
it
would
involve
many
Suits
;
and
insisted
,
That
the
said
Award
is
in
the
nature
of
an
Agreement
,
and
ought
to
be
performed
.
This
Court
taking
Notice
,
Cross
Bills
about
the
setting
aside
or
confirming
an
Award
dismist
,
and
sent
to
Law
.
that
the
Award
in
question
was
not
made
by
the
Order
of
this
Court
,
but
that
it
proceeded
from
the
voluntary
Submission
of
the
parties
;
two
Judges
being
chosen
by
themselves
,
who
declared
their
Opinion
,
That
they
saw
no
cause
to
decree
the
Award
to
be
set
aside
;
nor
on
the
other
side
to
confirm
it
,
or
to
relieve
the
Plaintiff
;
but
ordered
both
Bills
to
be
dismist
,
the
Plaintiff
electing
to
go
to
Law
:
This
was
heard
by
Justice
Tirrel
.
This
Cause
came
to
be
Re-heard
before
the
Lord
Keeper
,
being
assisted
with
Judge
Wild
,
who
confirmed
the
Order
above
.
Hale
contra
Acton
,
21
Car.
2.
fo.
409.
THat
Edward
Eltonhead
by
his
Will
gave
the
Defendant
Mrs.
Gilbourne
1000
l.
to
be
first
paid
after
his
debts
,
besides
a
Share
out
of
the
dividend
of
the
Estate
,
when
as
after
the
making
the
said
Will
,
the
said
Edward
Eltonhead
and
Henry
Gilbourne
,
Father-in-Law
to
the
Defendant
Mary
Gilbourne
,
before
her
Marriage
came
to
an
Agreement
,
for
what
the
said
Mary
should
have
out
of
the
said
Estate
,
and
that
there
should
be
but
1100
l.
and
the
same
was
to
be
in
full
of
what
was
intended
her
thereout
,
and
that
the
said
Edward
Eltonhead
often
so
declared
,
and
in
his
life-time
paid
500
l.
and
after
his
death
his
Executor
paid
100
l.
more
in
pursuance
of
the
said
Agreement
,
Devise
by
Will
,
and
an
Agreement
about
a
Portion
,
not
intended
several
Sums
.
so
as
the
chief
Point
then
controverted
being
,
whether
the
said
Defendant
Mrs.
Gilbourne
ought
to
have
the
1100
l.
Portion
,
and
1000
l.
Legacy
,
mentioned
in
her
Fathers
Will
,
or
that
he
intended
to
give
her
any
more
out
of
his
Estate
than
the
said
1100
l.
The
Master
of
the
Rolls
declared
,
That
the
1100
l.
ought
to
be
in
full
of
what
the
Defendant
Gilbourne
was
,
and
ought
to
have
out
of
the
said
Estate
,
and
decreed
accordingly
.
This
Cause
came
to
be
Re-heard
before
the
Lord
Keeper
Bridgman
,
who
declared
,
He
saw
no
cause
to
alter
the
said
former
Decree
,
and
so
confirmed
it
.
Brabant
contra
Perne
,
21
Car.
2.
fo.
146
,
&
344.
DEpositions
of
Witnesses
under
the
Hand
of
a
Six-Clerk
,
then
in
a
Cause
between
Butt
and
Perne
,
about
Thirty
years
since
,
the
Plaintiff
in
this
Cause
prayed
the
same
might
be
recorded
;
the
Record
of
the
Original
Depositions
in
that
Cause
being
lost
.
But
the
Defendant
Pernes's
Counsel
insisted
,
Copies
of
Depositions
,
not
to
be
recorded
or
exemplified
.
it
would
be
of
dangerous
consequence
and
president
,
to
suffer
Copies
of
Depositions
to
be
Recorded
,
and
used
as
Evidence
in
case
of
Title
of
Land
,
there
being
no
Cause
in
Court
or
parties
to
the
said
former
Suit
,
there
being
since
the
dismission
of
the
said
former
Suit
two
Trials
brought
by
the
said
Butt
concerning
the
said
things
in
question
,
upon
both
which
two
Nonsuits
passed
against
the
said
Butts
Title
,
the
Witnesses
which
were
examined
in
this
Court
being
all
then
living
,
and
two
Verdicts
upon
full
Evidence
on
both
sides
;
and
one
other
Verdict
since
1664.
hath
been
found
for
the
Defendant's
Title
against
the
now
Plaintiffs
Title
,
and
some
of
the
Witnesses
at
the
said
Trial
have
sworn
otherwise
than
is
expressed
in
those
Copies
of
the
Depositions
,
which
the
Plaintiff
would
have
now
recorded
and
exemplified
.
This
Court
would
not
allow
the
said
Copies
of
the
Depositions
to
be
recorded
or
exemplified
,
but
they
being
before
Ordered
so
to
be
by
the
Master
of
the
Rolls
,
it
is
Ordered
they
shall
be
vacated
and
made
void
and
cancelled
,
and
taken
off
the
File
.
Alexander
contra
Alexander
,
21
Car.
2
:
fo.
324.
THe
Suit
is
,
Assets
.
to
discover
the
Estate
of
Richard
Alexander
deceased
,
which
is
come
to
the
Defendants
hands
,
to
satisfy
a
debt
of
300
l.
due
to
the
Plaintiff
from
the
said
Richard
Alexander
.
The
Defendant
insisted
that
the
Plaintiff
ought
not
to
have
Relief
in
this
Court
,
in
regard
the
Assets
in
the
Defendants
hands
were
legal
Assets
,
and
nothing
appeared
,
but
that
the
Plaintiff
had
her
proper
remedy
at
Law
,
having
not
proved
any
thing
more
to
be
in
the
Defendants
hands
than
was
confessed
in
the
Defendant's
Answer
.
But
the
Plaintiff
insisted
,
Bill
to
discover
Affets
.
That
this
Court
hath
directed
Accounts
in
cases
of
this
nature
to
avoid
circuity
of
Action
,
and
further
charge
and
trouble
of
Suits
;
and
that
this
Court
being
possest
of
the
Cause
,
and
the
parties
at
Issue
on
Proofs
,
the
same
was
as
proper
for
this
Court
,
as
at
Common
Law
.
This
Court
ordered
Presidents
to
be
searched
,
where
this
Court
hath
directed
Accounts
and
given
Relief
in
this
Case
,
and
the
Cause
coming
to
be
heard
on
the
Presidents
and
Merits
thereof
;
and
the
Plaintiffs
insisted
,
that
there
is
sufficient
Assets
of
the
said
Richard
Alexander
come
to
the
Defendants
hands
,
to
satisfie
the
Plaintiffs
debt
with
Overplus
.
This
Court
decreed
the
Defendant
,
to
come
to
an
Account
for
the
Estate
of
one
Blackhall
,
unadministred
.
Yate
contra
Hooke
,
21
Car.
2.
fo.
939.
THat
John
Hele
,
on
the
23d
Dec.
1654.
Mortgage
by
demise
and
re-demise
.
for
2000
l.
mortgaged
Longs
Court
and
other
Lands
to
Jasper
Edwards
,
his
Executors
,
Administrators
and
Assigns
for
99
years
,
and
the
said
Edwards
on
the
25th
of
Dec.
1654.
re-demised
the
same
to
the
said
John
Hele
for
98
years
at
a
Pepper
Corn
Rent
,
on
Condition
,
That
if
the
said
John
Hele
,
his
Heirs
,
Executors
,
Administrators
and
Assigns
,
did
not
pay
to
the
said
Jasper
Edwards
,
his
Executors
,
Administrators
and
Assigns
2150
l.
at
a
certain
day
therein
mentioned
,
that
then
the
said
Re-demise
to
be
void
,
and
Covenanted
for
him
,
his
Heirs
,
Executors
and
Administrators
,
to
pay
the
same
accordingly
;
and
in
Hillary
Term
1654.
the
said
John
Hele
acknowledged
a
Judgment
of
4000
l.
to
the
said
Jasper
Edwards
,
for
the
performance
of
the
Covenants
in
the
said
Demise
and
Re-demise
;
and
after
,
in
1656.
the
said
John
Hele
for
500
l.
mortgaged
the
said
premisses
to
Joseph
Jackson
,
his
Executors
,
Administrators
and
Assigns
,
reciting
the
said
Mortgage
to
Jasper
Edwards
,
to
have
and
to
hold
the
said
premisses
to
the
said
Joseph
Jackson
,
his
Executors
,
Administrators
and
Assigns
,
for
the
residue
of
the
said
term
demised
to
the
said
Jasper
Edwards
,
and
to
hold
the
Reversion
to
the
said
Joseph
Jackson
,
his
Heirs
and
Assigns
,
for
the
use
of
the
said
Joseph
Jackson
,
his
Heirs
and
Assigns
for
ever
,
on
Condition
,
That
if
the
said
John
Hele
,
his
Executors
,
&c.
paid
to
the
said
Jackson
,
his
Executors
,
&c.
515
l.
in
June
next
following
,
then
the
said
Deed
of
Mortgage
to
be
void
,
and
the
said
John
Hele
to
Re-enter
,
as
in
his
former
Estate
;
and
the
said
John
Hele
Covenanted
with
the
said
Jackson
,
his
Heirs
,
&c.
to
pay
the
said
515
l.
and
for
further
confirmation
,
granted
to
the
said
Jackson
all
his
Equity
of
Redemption
;
and
afterwards
the
said
Edwards
and
Hele
for
2000
l.
paid
by
Jackson
to
the
said
Edwards
,
the
said
Edwards
and
Hele
assigned
the
said
premisses
to
Jackson
,
with
Condition
or
Proviso
,
That
if
the
said
Hele
,
his
Heirs
or
Executors
,
should
pay
to
the
said
Jackson
,
his
Executors
,
&c.
2060
l.
then
the
said
demise
from
Hele
to
Edwards
to
be
void
;
and
afterwards
in
1657.
Edwards
assigned
the
said
Judgment
of
4000
l.
to
the
said
Jackson
,
his
Executors
,
&c.
and
the
said
Hele
in
1660.
died
,
leaving
the
said
Defendant
Sir
Thomas
Hooke
his
Nephew
and
Heir
.
And
the
said
Jackson
having
made
his
Will
,
and
devised
to
his
Daughter
Sarah
,
Wife
of
the
Defendant
Alford
2000
l.
and
to
the
said
Joseph
Jackson
his
Son
2000
l.
with
his
Lands
,
Tenements
,
&c.
and
to
the
Heirs
of
his
Body
;
and
for
want
of
Issue
,
then
the
one
half
of
his
Lands
so
given
to
his
Daughter
Ann
Yate
,
and
the
other
half
to
his
Daughter
Earle
,
and
the
Issue
of
their
Bodies
equally
;
and
that
in
case
his
personal
Estate
fell
short
,
then
every
Legatee
to
abate
in
proportion
to
make
it
up
the
one
half
,
and
the
other
half
his
Son
Joseph
should
make
good
out
of
what
he
had
bequeathed
to
him
,
and
made
the
Defendants
Yate
,
Earle
and
Aldworth
Executors
;
and
if
his
Estate
should
amount
to
more
than
he
had
bestowed
,
then
that
the
said
Joseph
and
Sarah
should
have
the
one
half
of
it
,
and
his
Son
Yate
and
his
Wife
,
and
his
Son
Earle
and
his
Wife
,
and
what
Child
he
should
have
living
at
his
decease
,
the
other
half
:
Afterwards
the
said
Joseph
Jackson
,
having
in
his
Account
accompted
the
said
Mortgage
Mony
as
part
of
his
personal
Estate
in
1661
,
died
,
leaving
the
said
Joseph
Jackson
his
Heir
;
that
no
Entry
had
been
made
either
by
the
Testator
in
his
life
time
,
or
by
the
said
Joseph
his
Son
and
Heir
,
upon
the
said
mortgaged
premisses
;
but
the
said
John
Hele
and
Sir
Thomas
Hooke
had
received
all
the
Rents
and
Profits
.
So
as
the
Question
was
,
Whether
the
said
Mortgage
Moneys
are
due
and
payable
to
the
Heir
or
Executor
of
the
said
Testator
Joseph
Jackson
.
This
Court
upon
reading
the
said
Deeds
and
Will
,
Mortgage-Mony
payable
to
the
Executor
,
and
not
to
the
Heir
,
by
several
good
circumstances
in
the
Conveyances
.
conceived
that
there
was
no
question
in
the
Case
,
but
that
the
said
several
Sums
of
2000
l.
and
500
l.
being
the
Mortgage-mony
,
ought
to
go
not
to
the
Heir
,
but
to
the
Executors
,
and
to
be
accounted
part
of
the
Testators
personal
Estate
,
he
having
by
his
Will
given
his
real
Estate
by
Name
to
his
Heir
,
besides
his
Portion
of
2000
l.
and
one
4th
part
of
the
Overplus
of
his
personal
Estate
,
the
rather
,
for
that
it
was
not
in
the
power
of
the
Heir
to
discharge
the
Judgment
or
the
Mortgage
,
and
the
Moneys
by
the
several
Provisoes
being
made
payable
to
the
Executor
,
and
not
to
the
Heir
;
and
the
Original
Mortgage
being
but
for
years
,
though
altered
by
Act
in
Law
,
and
the
Testator
having
by
Will
charged
the
Lands
devised
to
his
Heir
to
supply
the
deficiency
,
if
the
personal
Estate
should
not
be
sufficient
:
Whereas
,
if
he
had
not
taken
the
Mortgages
to
be
part
of
his
personal
Estate
,
he
would
have
supplied
the
same
out
of
the
Mortgages
;
and
decreed
Sir
Thomas
Hooke
to
Redeem
,
and
he
pay
the
Plaintiffs
,
the
Executors
,
the
Mortgage-Mony
with
Interest
.
Tolson
contra
Lamplugh
,
21
Car.
2.
fo.
786.
THe
Plaintiff
prays
liberty
to
make
use
of
Depositions
taken
in
a
former
Cause
,
wherein
Henry
Tolson
,
Depositions
taken
in
a
former
Cause
made
use
of
.
the
Plaintiffs
late
Father
deceased
,
was
Plaintiff
against
Abraham
Molline
and
his
Wife
,
and
Mr.
Winstanley
,
Defendants
.
The
Defendant
Lamplugh
insisted
,
That
there
is
no
colour
or
ground
for
the
using
the
said
Depositions
taken
in
the
Cause
,
wherein
the
said
Henry
Tolson
was
Plaintiff
at
the
Trial
,
directed
those
Depositions
,
being
taken
in
a
Cause
whereto
neither
of
the
Defendants
,
the
Lamplugh's
,
are
parties
;
and
there
is
more
difference
of
the
Title
between
the
Defendants
the
Lamplugh's
,
and
Mr.
Moline
and
Winstanley
,
than
between
the
said
Lamplugh
and
the
Plaintiff
Tolson
.
The
Plaintiff
Tolson
insisted
,
That
the
Defendants
the
Lamplugh's
claimed
and
derived
their
Title
under
Mr.
Moline
and
his
Wife
,
and
Winstanley
,
and
so
the
said
Depositions
ought
to
be
used
at
the
Trial
,
which
the
Defendant
denied
.
This
Court
declared
,
That
the
Depositions
in
the
said
former
Cause
,
ought
to
be
used
against
the
now
Defendants
the
Lamplugh's
,
unless
they
claim
under
the
said
former
Defendants
;
but
if
they
do
,
then
the
said
former
Depositions
ought
to
be
admitted
as
Evidence
against
them
.
Hunton
contra
Davies
,
22
Car.
2.
fo.
386.
THE
Bill
is
for
500
l.
Remainder
of
2900
l.
which
Mr.
Hugh
Ordley
was
to
pay
for
the
purchase
of
Land
to
the
Plaintiffs
Father
,
which
500
l.
was
decreed
to
be
paid
to
one
Castle
in
1637.
for
the
use
of
the
Plaintiff
,
which
500
l.
and
Interest
comes
to
1184
l.
and
to
have
the
Defendants
the
purchasors
of
the
Land
to
pay
it
.
To
which
Bill
the
Defendants
,
Bill
for
Remainder
of
purchase-Mony
.
Defendant
pleads
it
is
33
years
since
,
and
never
any
Suit
for
it
,
but
the
Land
enjoyed
,
and
former
parties
concerned
dead
;
per
Cur
'
a
good
Plea
.
the
Executors
of
Ordley
,
pleaded
,
That
Mr.
Ordley
lived
in
London
till
1662.
and
the
Plaintiff
might
have
had
remedy
against
him
,
and
it
being
a
debt
33
years
since
,
and
no
Suit
commenced
against
Ordely
in
his
life
time
,
nor
any
till
now
,
and
the
Lands
enjoyed
by
others
now
,
and
the
Defendants
the
Executors
have
nothing
to
shew
for
the
payment
and
Case
,
and
all
former
parties
concerned
therein
being
dead
,
and
therefore
after
all
this
time
the
Defendants
hope
this
Court
will
not
suppose
that
the
said
Mony
is
unpaid
,
or
that
the
Defendants
ought
to
be
charged
therewith
,
and
the
Defendants
being
Executors
and
Strangerr
to
all
the
Matters
aforesaid
.
This
Court
held
the
Plea
and
Demurrer
good
.
Malpas
contra
Vernon
,
22
Car.
2.
fo.
360.
A
Bill
of
Review
,
Bill
of
Review
.
to
Reverse
a
Decree
,
whereby
the
Plaintiff
is
decreed
to
pay
more
Mony
than
by
his
Agreement
on
his
Purchase
he
was
to
pay
.
This
Court
declared
,
That
without
a
special
Agreement
at
the
time
of
the
purchase
,
for
payment
of
the
debt
claimed
by
the
Defendant
,
the
Plaintiff
ought
not
to
be
oblig'd
by
the
Decree
to
pay
the
Defendants
,
no
such
Agreement
appearing
by
the
Decree
,
or
any
Proof
offered
at
the
Hearing
.
The
Defendant
insisted
,
That
by
the
Proofs
there
is
an
Agreement
proved
,
whereby
the
Defendant
,
amongst
other
Creditors
was
to
be
satisfied
his
debt
.
Now
the
Point
being
,
No
new
Proofs
admitted
upon
a
Bill
of
Review
,
upon
a
second
Agreement
.
whether
any
special
Agreement
was
made
for
the
purpose
aforesaid
,
and
the
Court
had
declared
no
new
Proofs
could
be
admitted
in
the
Cause
this
Court
Ordered
by
consent
.
That
the
Cause
be
heard
on
the
said
point
of
Agreement
on
the
old
Proofs
,
and
no
other
.
Comes
Castle-Haven
contra
Vnderhill
,
22
Car.
2.
fo.
106.
THis
is
a
Bill
of
Review
,
Bill
of
Review
.
to
Reverse
a
Decree
in
12
Car.
1.
wherein
the
now
Defendant
was
Plaintiff
against
the
Lady
Vice
Countess
of
St.
Albons
,
his
Wife
and
others
,
Defendants
:
The
points
of
Error
were
,
That
the
Decree
was
grounded
on
a
Bill
exhibited
by
the
now
Defendant
against
the
said
Lady
St.
Albons
,
his
then
Wife
,
and
was
made
by
Consent
,
without
any
Judicial
Hearing
,
whereby
a
Settlement
and
disposition
of
the
said
Ladies
Lands
,
whereof
she
had
an
Estate
in
Fee
,
was
made
without
any
Fine
or
Recovery
levied
or
suffered
,
or
any
other
legal
Act
done
,
to
bar
and
bind
her
or
her
Inheritance
,
which
the
said
Plaintiff
conceives
could
not
be
done
,
the
said
Lady
being
a
Feme
Covert
,
and
could
not
in
Law
or
Equity
consent
,
nor
could
her
Trustees
by
her
consent
charge
the
Inheritance
,
wherein
they
had
no
legal
Assurance
.
The
now
Defendants
insist
,
That
2
Car.
1.
the
said
Lady
St.
Albons
,
after
her
Intermarriage
with
the
now
Defendant
,
did
settle
300
l.
per
Annum
,
and
several
Recoveries
were
suffered
,
whereby
the
same
would
have
come
to
the
Defendant
after
the
said
Ladies
death
,
as
an
Estate
in
Fee
,
the
said
Lady
dying
without
Issue
.
That
afterwards
the
said
Lady
and
the
Defendant
came
to
another
Agreement
,
viz.
That
the
Defendant
should
have
400
l.
per
Annum
out
of
the
said
Ladies
Estate
,
to
him
and
his
Assigns
for
life
,
and
in
consideration
thereof
the
said
Defendant
agreed
to
quit
and
debar
himself
of
and
from
all
claim
and
interest
to
any
of
the
rest
of
the
said
Ladies
Estate
,
real
or
personal
,
during
their
joynt
Lives
,
or
after
her
death
;
and
in
case
of
failure
of
payment
,
or
the
said
Ladies
death
,
the
Defendant
was
to
enter
into
all
the
Estate
for
Satisfaction
;
which
said
400
l.
per
Annum
was
setled
by
Deed
Tripartite
,
14
Car.
1.
and
the
said
Agreement
and
Settlement
was
confirmed
by
a
Decree
17
Car.
1.
by
the
consent
of
all
parties
,
and
that
the
said
Lady
by
Will
gave
away
from
this
Defendant
all
her
Lands
and
personal
Estate
,
which
the
Defendant
had
given
her
power
to
do
,
and
she
died
,
and
for
Non-payment
of
the
said
400
l.
per
Annum
the
Defendant
entred
upon
the
Lands
,
liable
to
the
payment
thereof
,
and
the
Defendant
hopes
the
said
Decree
shall
not
be
Reversed
.
The
Plaintiff
insists
,
That
the
Title
in
Law
in
the
Ladies
Estate
was
in
Trustees
before
her
Marriage
with
the
Defendant
,
and
so
agreed
to
be
continued
without
his
intermedling
therewith
,
he
bringing
no
Additional
Estate
to
the
said
Lady
,
and
that
there
was
no
Fine
levied
to
the
Trustees
,
or
otherwise
,
of
her
Estate
of
Inheritance
,
Revocation
of
Uses
.
and
that
the
Uses
upon
the
Recoveries
were
with
power
of
Revocation
in
the
Lady
alone
,
and
that
pursuant
to
such
power
by
Deed
,
14
Car.
1.
she
Revoked
the
same
,
and
setled
the
same
in
Trust
for
such
persons
and
their
Heirs
,
as
she
by
her
Will
should
appoint
,
and
that
the
said
Tripartite
Indenture
and
Decree
did
not
discharge
the
Trust
,
nor
take
notice
of
the
Recoveries
,
and
that
the
said
Lady
in
1659.
did
appoint
,
that
her
Trustees
upon
the
said
Recoveries
shall
convey
part
of
her
Land
to
the
Plaintiff
Solmes's
Father
,
and
the
Plaintiff
Terrell
,
and
the
rest
to
her
Heir
at
Law
;
and
that
in
1650.
the
said
Land
came
first
to
be
charged
,
which
was
after
the
Ladies
death
,
and
presently
after
there
appeared
Infancies
,
which
was
the
reason
the
said
Decree
was
not
sooner
impeach'd
.
This
Court
being
assisted
with
the
Judges
,
Bill
of
Review
dismist
,
for
that
its
a
long
time
since
the
Decree
was
made
,
and
the
Plaintiffs
rested
under
it
without
any
Complaint
.
taking
into
Consideration
the
length
of
Time
since
the
Decree
was
made
,
and
how
long
they
were
resting
under
it
without
any
Complaint
,
and
that
the
Heirs
have
a
benefit
by
the
Ladies
separate
power
of
disposing
,
who
disposed
accordingly
by
her
Will
.
This
Court
,
with
the
Judges
,
declared
and
are
of
Opinion
,
that
the
said
Decree
,
grounded
on
the
Tripartite
Indenture
14
Car.
1.
was
and
is
a
good
Decree
,
and
ought
to
be
performed
;
and
dismissed
the
Bill
of
Review
.
White
cont.
Ewens
&
al'
,
22
Car.
2.
fo.
(
237.
)
THis
is
upon
an
Appeal
from
a
Decree
,
Appeal
from
a
Decree
.
the
Case
being
,
That
Dame
Ann
Brett
,
Relict
of
Sir
Alex.
Brett
,
having
a
Joynture
in
the
Manors
and
Lands
of
Whitstanton
,
and
Alexander
her
Son
having
on
the
Marriage
with
Elizabeth
the
Daughter
of
Sir
William
Kirkham
,
agreed
to
settle
250
l.
per
Annum
Joynture
on
the
said
Elizabeth
;
but
being
disabled
to
do
it
,
by
reason
of
Dame
Anns
Joynture
,
he
being
seised
only
of
120
l.
per
Annum
in
Whitland
,
and
the
Reversion
of
Yarkcombe
,
the
said
Alexander
agreed
with
the
said
Dame
Ann
,
That
his
Heirs
,
Executors
,
or
Administrators
,
should
pay
yearly
after
his
death
,
to
Sir
Humfry
Lind
and
George
Brett
250
l.
per
Annum
during
the
said
Dame
Anns
life
,
if
the
said
Elizabeth
should
so
long
live
;
and
thereupon
the
said
Dame
Ann
Joyned
with
the
said
Alexander
in
a
Grant
of
a
Rent-charge
of
250
l.
per
Annum
out
of
Whitstanton
for
the
Joyture
of
Elizabeth
and
Alexander
,
12
Jac.
1.
demised
Whitland
and
Tarkcombe
to
Lind
and
Brett
the
said
Trustees
for
an
hundred
years
,
to
commence
immediately
after
such
time
as
the
Heirs
,
Executors
or
Administrators
of
Alexander
should
fail
to
pay
the
said
250
l.
per
Annum
to
the
said
Trustees
during
the
life
of
the
said
Elizabeth
.
That
15
Jac.
1.
the
said
Alexander
died
,
and
there
being
a
failure
of
payment
of
the
250
l.
by
the
Children
,
Executors
,
&c.
of
the
said
Alexander
,
to
the
said
Elizabeth
,
or
to
the
Trustees
,
for
the
use
of
the
said
Dame
Ann
,
the
said
Dame
Ann
paid
the
same
out
of
Whitstanton
,
and
thereby
the
said
Lease
of
100
years
of
Whitlands
and
Yarkcombe
did
commence
;
and
thereupon
she
entred
,
and
received
the
Profits
of
Whitlands
,
and
the
said
Dame
Ann
paid
the
250
l.
during
the
life
of
the
said
Elizabeth
.
That
the
said
Alexander
leaving
three
Children
,
viz.
Robert
,
Mary
and
Ann
wholly
unprovided
for
,
and
by
Agreement
the
said
Dame
Ann
was
to
pay
80
l.
per
Annum
for
the
said
Childrens
Maintenance
,
from
the
death
of
the
said
Elizabeth
their
Mother
;
and
that
the
said
Dame
Ann
and
her
Trustees
should
assign
the
said
Lease
of
100
years
to
the
said
Children
,
when
at
Age.
That
17
Jac.
1.
the
said
Lease
was
assigned
to
the
Children
,
to
commence
from
1636.
that
the
said
Dame
Ann
paid
the
said
80
l.
per
Annum
maintenance
,
which
with
1750
l.
she
had
paid
to
the
said
Elizabeth
,
amounting
to
more
than
the
Value
of
the
said
Lease
of
Whitlands
,
whereof
she
received
the
Profits
,
till
about
1636.
the
said
Mary
one
of
the
Children
being
dead
,
and
that
the
Defendant
Ewens
having
married
Ann
the
other
Daughter
,
they
and
the
said
Robert
Brett
the
Son
held
the
said
premisses
as
Joynt-tenants
by
virtue
of
the
said
Lease
;
but
the
said
Robert
Brett
receiving
more
of
the
Profits
than
his
share
,
the
Defendant
Ewens
and
his
Wife
sued
out
a
Writ
of
Partition
in
1654.
Partition
.
a
Moiety
was
delivered
to
the
Defendant
Ewens
,
and
Judgment
given
,
that
the
same
should
be
held
in
severalty
;
and
the
Defendant
Ewens
,
12
Car.
2.
for
132
l.
Fine
,
and
20
l.
per
Annum
,
demised
part
thereof
to
the
Defendant
Nurse
,
who
assigned
to
the
Defendant
Rutland
.
That
the
Plaintiff
White
insisting
,
That
Robert
Brett
acknowledged
a
Judgment
to
Richard
White
in
1644.
extended
the
Defendants
Moiety
,
and
brought
an
Ejectment
,
and
got
a
Verdict
by
surprize
since
which
the
Defendant
brought
an
Action
,
and
obtained
a
Verdict
,
whereupon
the
Plaintiff
exhibited
this
Bill
,
and
hath
stayed
the
Defendants
by
an
Injunction
.
To
have
an
account
of
the
Profits
received
,
and
a
Lease
12
Jac.
1.
being
20
years
since
,
is
contrary
to
the
Limitations
and
Rules
both
at
Law
and
Equity
.
The
Plaintiff
insists
,
He
is
now
in
the
place
of
the
said
Robert
,
but
in
a
better
condition
,
his
said
Judgment
under
which
he
claims
being
long
since
Extended
in
the
life
time
of
the
said
Richard
White
and
Robert
Brett
,
and
before
any
Action
brought
,
and
if
the
said
Lease
be
satisfied
,
the
same
ought
to
be
set
aside
:
And
to
take
off
the
length
of
Time
insists
,
That
by
a
Decree
made
in
the
Court
of
Wards
in
1640.
the
Defendants
were
to
account
with
the
said
Robert
Brett
,
and
the
Plaintiffs
Father
Richard
White
really
lent
the
said
Mony
for
which
the
Judgment
was
got
:
and
in
1646.
on
Extent
,
had
a
Moiety
of
Whitlands
delivered
,
and
that
notwithstanding
the
Lease
to
the
three
Children
,
the
Lady
Ann
had
possession
of
Whitlands
till
1637.
The
Defendants
insist
,
That
the
Lady
Ann
paid
1750
l.
and
80
l.
per
Annum
,
during
the
Minority
of
the
Children
,
which
is
more
than
the
Value
,
so
look'd
on
her self
an
absolute
Owner
,
and
disposed
of
the
said
Lease
,
whereof
the
said
Robert
had
a
Moiety
,
Lease
to
commence
after
failure
of
payment
.
and
that
this
differs
from
ordinary
Mortgages
,
the
Lease
being
to
commence
after
failure
of
Payment
by
the
Heirs
,
Executors
or
Administrators
of
the
said
Alexander
,
and
there
was
no
Proviso
therein
,
and
that
the
said
Lady
Ann
in
all
probability
hath
paid
many
Hundreds
of
Pounds
,
and
Elizabeth
might
have
lived
many
years
longer
;
and
tho'
the
Lady
Ann
had
paid
treble
the
value
,
yet
she
must
have
been
contented
with
her
Security
,
and
the
said
Robert
Brett
did
not
think
the
same
worth
Redeeming
;
and
tho'
the
Reversion
in
Fee
was
Extended
in
1646
;
yet
the
said
Robert
Brett
and
the
Defendant
Ewens
continued
possession
till
Judgment
on
the
Writ
of
Partition
,
and
from
thence
till
1662.
which
was
20
years
after
the
Plaintiffs
Judgment
,
and
the
Lady
Ann
was
to
continue
possession
till
the
Children
attained
21
years
of
Age
,
which
was
in
1636.
when
the
said
demise
to
them
made
did
commence
.
This
Court
being
assisted
with
the
Judges
,
were
of
Opinion
and
declared
themselves
fully
satisfied
,
That
the
Plaintiff
ought
not
to
have
any
Relief
against
the
Defendants
,
but
that
the
Bill
ought
to
be
dismissed
,
for
that
his
Lordship
doth
take
a
difference
betwixt
the
Lease
which
is
to
commence
after
failure
of
Payment
,
and
a
Mortgage
with
a
Condition
subsequent
,
Difference
betwixt
a
Lease
which
is
to
commence
after
failure
of
Payment
,
and
a
Mortgage
with
a
Condition
subsequent
.
and
the
rather
in
this
case
,
for
that
the
breach
was
in
the
failure
of
payment
of
250
l.
per
Annum
,
which
the
said
Lady
was
thereby
obliged
to
pay
for
a
young
Life
,
and
so
might
have
been
paid
for
many
years
,
and
if
it
had
been
paid
in
the
Casualty
for
20
years
,
the
Heirs
would
never
have
redeemed
it
,
and
therefore
no
Reason
why
the
Plaintiff
should
take
advantage
thereof
;
and
also
the
Agreemant
before
mentioned
,
between
the
said
Dame
Ann
and
Kirkham
weighed
much
in
this
Court
,
to
which
Agreement
Robert
the
Heir
,
by
his
Enjoying
of
the
premisses
so
assigned
,
together
with
the
Defendant
Ewens
and
his
Wife
,
after
he
came
of
Age
,
consented
,
and
there
was
no
disturbance
during
the
Tenancy
in
Common
as
to
the
Right
,
but
to
as
perception
of
Profits
only
,
and
the
Heir
permitting
the
Defendant
Ewens
and
his
Wife
to
have
Judgment
on
the
Writ
of
Partition
was
a
Consent
of
the
whole
,
Redemption
after
a
long
time
.
and
in
this
Consent
it
is
not
the
Heir
,
but
a
Stranger
who
seeks
to
redeem
,
and
no
man
that
puts
himself
after
so
long
a
time
into
a
condition
to
redeem
,
Plaintiff
not
relieved
upon
a
Judgment
entred
into
60
years
ago
,
and
no
Consideration
proved
.
shall
have
any
Relief
here
;
and
it
is
the
stronger
against
the
Plaintiff
,
that
no
Consideration
is
proved
for
the
said
Judgment
,
which
was
entred
into
so
long
since
as
the
Year
1640
,
and
after
60
years
,
this
Court
will
not
relieve
the
Plaintiff
,
but
dismiss
the
Bill
.
Boulter
contra
Chester
&
al'
,
22
Car.
2.
fo.
60.
THe
Question
being
,
Bail
.
Whether
the
Plaintiff
Boulter
,
who
was
a
Surety
for
one
Ree
,
should
pay
any
more
than
the
Sum
of
40
l.
for
which
he
was
Bail
for
the
Appearance
of
one
Roger
Ree
at
the
Defendants
Suit
,
the
Ac
etiam
Bill
being
only
for
40
l.
whenas
the
Defendant
demands
55
l.
for
a
years
Rent
for
the
premisses
,
and
10
l.
damages
for
want
of
Repair
of
the
premisses
,
besides
Costs
,
and
would
fix
the
same
on
the
Plaintiffs
the
Bail
;
but
the
main
Question
being
,
Whether
the
Bail
ought
to
answer
or
pay
any
more
than
what
was
exprest
in
the
Writ
,
which
is
40
l.
Bail
to
answer
no
more
than
what
is
exprest
in
the
Ac
etiam
Bill
.
or
whether
he
ought
to
answer
or
pay
what
might
have
been
recovered
,
in
case
the
said
Ree
,
for
whom
the
Plaintiff
was
Bail
,
had
appeared
and
defended
the
Action
.
This
Court
conceived
,
that
the
Desendant
Stretton
ought
to
have
no
more
than
what
was
expressed
in
the
Writ
and
Ac
etiam
Bill
,
for
which
the
Plaintiff
was
only
bail
,
but
his
Costs
in
the
same
already
taxed
at
Law
and
by
the
Master
,
and
ordered
the
same
accordingly
.
Floyer
contra
Hedgingham
,
21
Car.
2.
fo.
809.
THat
no
Copyholder
ought
to
be
admitted
to
any
Copyhold
Estate
by
Letter
of
Attorney
,
Copyholder
,
not
to
be
admitted
by
Letter
of
Attorney
.
for
that
he
ought
to
do
Fealty
at
the
time
of
his
admittance
,
which
cannot
be
done
by
an
Attorney
;
but
ought
to
be
done
in
person
,
by
reason
that
no
man
can
swear
by
Attorney
.
Hunt
contra
Jones
,
22
Car.
2.
THe
Bill
is
,
That
the
Defendant
Jones
,
who
is
the
surviving
Trustee
may
assign
and
convey
all
his
Interest
and
Estate
in
Brockley
in
Com
Worcester
to
the
Plaintiff
,
Limitation
of
a
Lease
.
the
said
.
Plaintiff
Intituling
her self
thereto
as
Administratrix
to
Edward
Palmer
;
the
Plaintiff
setting
forth
by
the
Bill
,
That
Edmund
,
late
Bishop
of
Worcester
,
did
by
two
Indentures
of
30
&
31
Eliz.
demise
the
premisses
to
the
late
Queen
and
her
Assignee
,
during
the
several
Terms
and
Rent
therein
expressed
,
that
the
several
Estates
,
Terms
and
Interests
being
come
and
vested
in
the
said
Edward
Palmer
for
the
Remainder
thereof
;
he
the
said
Palmer
by
Deedin
1652
,
in
Consideration
of
a
Marriage
then
to
be
had
between
him
and
the
Plaintiff
Mary
,
assigns
the
said
premisses
unto
Giles
Palmer
and
the
Defendant
Jones
,
and
their
Executors
,
for
the
residue
of
the
said
Terms
upon
Trust
to
permit
Elizabeth
Palmer
,
Mother
of
the
said
Edward
,
to
enjoy
the
said
premisses
for
life
,
and
then
to
the
said
Edward
for
his
life
,
and
after
their
Lives
,
then
to
the
Plaintiff
Mary
for
her
life
,
and
after
their
deceases
,
then
to
heirs
Males
of
the
Body
of
the
said
Edward
Palmer
and
the
Plaintiff
Mary
,
and
for
default
of
such
Issue
,
then
upon
Trust
for
the
right
Heirs
of
the
said
Edward
,
to
their
own
use
,
benefit
,
and
dispose
,
as
by
the
said
Deed
,
&c.
That
the
said
Edward
and
Elizabeth
Palmer
being
dead
,
Letters
of
Administration
were
granted
to
the
Plaintiff
Mary
,
by
virtue
whereof
she
is
well
Intituled
to
the
said
premisses
,
and
to
the
trust
and
benefit
thereof
for
the
Remainders
of
the
said
Terms
to
come
,
and
that
the
Defendant
Jones
,
as
the
surviving
Trustee
,
ought
to
assign
to
the
Plaintiff
,
and
the
Plaintiff
insists
,
that
all
the
Remainders
after
her
death
are
void
in
Law
and
Equity
.
The
Defendant
Jones
insists
,
That
the
Trust
extends
to
the
Child
or
Children
of
the
said
Edward
Palmer
,
and
the
Defendant
Elizabeth
Palmer
,
an
Infant
,
being
his
Daughter
she
may
question
him
for
the
same
,
in
case
he
should
Assign
as
aforesaid
,
and
prays
the
Court
will
take
care
for
the
Infants
.
But
the
Plaintiff
insisting
.
That
both
in
the
cases
of
Executors
and
Administrators
the
Point
hath
been
frequently
Adjudged
,
Limitation
of
a
Term
in
Trust
for
heirs
Males
,
&c.
void
in
Law
.
and
the
Limitation
to
the
heirs
Male
,
or
heir
General
,
being
a
void
Limitation
in
Law
,
where
there
is
no
Executor
,
the
Trust
shall
come
to
the
Administrator
.
This
Court
declared
,
And
the
benefit
of
the
Trust
belongs
to
the
Executor
or
Administrator
.
That
both
in
Law
and
Equity
the
benefit
of
the
Trust
in
such
case
doth
belong
to
the
Executor
or
Administrator
;
but
the
Plaintiff
Hunt
having
married
the
said
Plaintiff
Mary
,
and
claiming
in
right
of
her
who
is
Administratrx
to
her
former
Husband
Edward
Palmer
,
the
Court
thought
it
hard
,
that
by
virtue
of
the
said
Administration
she
should
carry
away
the
Estate
to
her
second
Husband
,
and
thereby
strip
the
Infant
thereof
,
from
whose
Father
the
Estate
first
moved
,
and
it
not
appearing
that
the
Ecclesiastical
Court
,
when
they
granted
the
Administration
,
took
any
Consideration
for
a
distribution
to
be
made
for
a
provision
for
her
,
this
Court
would
consider
of
the
Case
,
and
also
of
the
Limitation
and
Consideration
of
the
said
Deed
,
and
deliver
their
Opinion
.
This
Court
being
assisted
with
the
Judges
,
it
appearing
that
the
Interest
and
Estate
of
the
Terms
and
the
Trust
and
Benefit
thereof
,
is
by
the
death
of
the
said
Edward
Palmer
and
his
Mother
,
come
to
the
Plaintiff
Mary
for
her
life
,
and
there
being
but
30
years
of
the
said
Term
to
come
,
and
in
regard
the
Ecclesiastical
Court
cannot
make
a
distribution
of
the
remainder
of
the
Terms
,
not
knowing
but
that
the
said
Mary
may
live
till
the
Expiration
thereof
.
This
Court
directed
the
Defendant
Jones
to
assign
and
transfer
the
premisses
and
all
his
Interest
therein
,
The
Trustee
decreed
to
assign
to
the
Admistratrix
.
&c.
in
the
said
Terms
to
the
Plaintiff
,
or
such
as
they
should
appoint
.
Darrell
contra
Whitchot
,
20
Car.
2.
fo.
516.
THe
Plaintiff
had
a
Trust
in
a
Lease
of
a
Coal
Farm
by
Patent
from
the
late
King
,
Trust
.
which
Lease
was
afterwards
renewed
by
the
King
,
and
other
Trustees
named
therein
,
and
the
Defendant
being
one
of
the
Trustees
,
insists
,
he
was
a
joynt
Patentee
for
the
valuable
Consideration
of
500
l.
But
the
Plaintiff
insists
,
The
Defendant
comes
in
as
the
Plaintiffs
Trustee
,
and
not
to
be
subject
to
the
same
Trust
in
the
New
Lease
,
as
he
was
under
the
Old
Lease
.
But
the
Defendant
insists
,
The
New
Patent
was
to
the
New
Trustees
for
Service
done
by
them
to
this
King
,
and
this
Defendants
500
l.
and
this
Defendant
was
not
Trustee
for
the
Plaintiff
,
but
was
in
for
his
own
use
,
which
Patent
this
Defendant
had
pleaded
,
and
was
allowed
.
Yet
the
Plaintiff
insisted
,
An
Old
Trust
continned
upon
a
new
Lease
or
Patent
.
No
Tenant
Right
against
the
King
.
There
was
a
continued
Trust
,
and
the
Defendant
and
the
King
declared
,
he
had
a
respect
for
the
Old
Tenants
,
and
the
Defendant
coming
in
under
the
Tenants
Interests
,
ought
to
be
in
Trust
for
the
Plaintiffs
,
and
that
tho'
there
be
no
Tenant
Right
against
the
King
;
yet
the
King
did
consider
the
Tenants
,
and
that
this
Case
is
but
the
same
with
that
where
a
Mortgage
or
Trustee
renews
a
Church
Lease
,
Mortgagee
,
or
Trustee
,
renewing
a
Church-Lease
,
the
Cestuy
que
Trust
relieved
.
Bill
dismist
.
in
which
Cases
this
Court
had
given
Relief
.
This
Court
with
the
Judges
declared
their
Opinion
,
That
there
was
no
ground
at
all
to
Relieve
the
Plaintiff
,
and
so
dismissed
his
Bill
.
Episcopus
Sarum
contra
Nosworthy
,
23
Car.
2.
fo.
720.
THis
Case
is
touching
a
Rent
of
67
l.
per
Annum
reserved
on
a
Lease
of
Lands
made
by
John
late
Bishop
of
Exon
to
the
Defendant
,
Arrears
of
Rent
.
and
the
Plaintiff
by
his
Bill
says
,
the
Defendant
never
paid
the
said
Rent
to
the
Plaintiff
,
nor
any
part
thereof
during
all
the
time
he
was
Bishop
of
Exon
,
which
was
for
6
years
,
whereby
a
great
Arrear
is
incurr'd
and
due
to
the
Plaintiff
from
the
Defendant
,
for
which
the
Plaintiff
seeks
Relief
.
The
Defendant
insists
,
That
he
directly
tendered
the
said
Rent
to
the
Bishop
,
while
he
was
Bishop
of
Exon
,
but
he
refused
the
same
,
having
an
intention
to
impeach
the
said
Defendants
Estate
;
and
now
the
Plaintiff
is
Translated
to
another
See
,
and
so
he
ought
not
in
Law
or
Equity
to
demand
the
said
Arrears
,
but
ought
to
be
debarred
from
receiving
the
same
by
his
refusal
,
as
aforesaid
.
His
Lordship
was
clear
of
Opinion
,
that
by
Law
the
Plaintiff
could
not
recover
the
said
Arrears
,
but
how
far
the
Plaintiff
was
relievable
in
Equity
was
the
question
,
and
his
Lordship
ordered
Presidents
to
be
produced
,
where
there
hath
been
a
Just
duty
,
but
no
Legal
remedy
,
and
ordered
a
Case
to
be
stated
.
It
appearing
that
the
Plaintiff
,
Upon
refusal
to
accept
of
Rent
,
no
Relief
in
Law
or
Equity
for
the
Arrears
.
while
he
was
Bishop
of
Exon
,
would
not
accept
the
said
Rent
,
his
Lordship
,
with
Judges
assisting
him
,
were
clear
of
Opinion
,
That
there
was
no
ground
in
Equity
to
give
the
Plaintiff
any
Relief
,
and
dismist
the
Bill
.
Barthrop
contra
West
,
23
Car.
2.
fo.
744.
THe
Plaintiffs
Suit
is
to
have
the
benefit
and
equity
of
Redemption
of
Leases
mortgaged
,
Assets
.
and
other
Trust
Estates
,
made
liable
for
the
payment
of
his
debt
,
being
on
Judgment
for
2000
l.
and
to
have
a
voluntary
Deed
of
Trust
set
aside
,
as
against
the
Plaintiff
.
This
Court
decreed
the
Plaintiff
to
have
the
Equity
of
Redemption
to
be
liable
,
Equity
of
Redemption
.
Assets
.
and
as
Assets
to
satisfie
his
said
debt
of
2000
l.
and
set
aside
the
said
voluntary
deed
of
Trust
,
and
all
Trust
Estate
and
Surplus
thereof
after
preceding
debts
paid
,
to
be
Assets
in
Equity
for
the
payment
of
the
Plaintiff
:
Hooker
contra
Arthur
,
23
Car.
2.
fo.
523.
THe
Defendant
having
recovered
damages
for
breach
of
a
Covenant
in
a
Lease
,
at
Law
,
but
the
Plaintiff
insists
,
That
there
is
not
so
much
damages
due
,
as
the
Defendant
hath
sworn
in
his
Answer
,
therefore
the
Plaintiff
hopes
this
Court
will
reimburse
him
what
is
overpaid
to
the
Defendant
.
This
Court
declared
they
would
not
try
nor
ascertain
the
damages
in
this
Cour
,
The
Court
of
Chancery
will
not
try
or
ascertain
damages
recovered
at
Law
.
but
ordered
the
parties
to
Law
on
the
Covenant
.
Domina
Kemp
contra
Kemp
,
23
Car.
2.
This
is
on
a
Case
stated
,
(
viz.
)
THat
upon
Articles
of
Agreement
between
Sir
Robert
Kemp
and
Thomas
Steward
,
Devise
.
the
Plaintiffs
Father
upon
the
Marriage
of
Sir
Robert
with
the
Plaintiff
;
it
was
agreed
500
l.
Marriage
portion
,
should
be
paid
unto
Sir
Robert
or
his
Executors
,
and
in
consideration
thereof
,
the
said
Sir
Robert
should
settle
a
Joynture
of
200
l.
per
Annum
on
the
Plaintiff
his
wife
,
and
if
the
said
Sir
Robert
should
dye
before
such
Joynture
settled
,
then
he
was
to
have
Lands
chargeable
with
the
Plaintiff
Dower
,
which
should
fully
recompence
the
200
l.
and
that
Sir
Robert
by
his
last
Will
devised
to
the
Plaintiff
,
a
Rent-charge
of
200
l.
for
her
life
,
to
be
issued
out
of
the
Mannor
of
Spenishall
and
Lands
thereto
belonging
,
and
of
certain
Farms
called
Lininlts
and
Mortimore
,
and
Ravels
,
and
the
Frywoods
,
in
full
satisfaction
of
the
said
Articles
,
and
all
Dower
claimable
by
the
Plaintiff
,
and
also
devised
the
said
Farms
unto
the
Defendant
Mary
his
Grandchild
;
To
have
and
to
hold
immediately
after
the
death
of
the
Plaintiff
his
Wife
,
and
by
a
subsequent
Clause
in
the
Will
,
he
devised
all
the
Lands
(
not
therein
before
disposed
of
)
to
the
Defendant
Thomas
Kemp
,
the
Father
for
life
,
Remainder
to
Thomas
his
Son
for
life
,
with
remainder
over
;
and
also
gave
the
Plaintiff
his
Coach
,
Horses
,
Plate
and
Jewels
,
&c.
and
one
Third
part
of
his
clear
Personal
Estate
:
And
the
Plaintiff
conceived
,
that
she
ought
by
the
Will
to
have
both
the
Rent-charge
and
the
Farms
for
her
life
by
the
aforesaid
devise
,
200
l.
Rent-charge
devised
in
lieu
of
Joynture
,
and
by
the
same
Will
an
implicit
Devise
of
the
Lands
to
her
.
Decreed
she
shall
have
only
the
200
l.
per
Annum
.
viz.
where
the
same
are
devised
to
the
Defendant
Mary
,
To
have
and
to
hold
after
the
Plaintiffs
death
,
so
to
have
the
same
by
the
said
implicit
Devise
,
without
Extinguishment
of
the
said
Rent
charge
is
the
Plaintiffs
suit
.
This
Court
declared
,
they
saw
no
Cause
to
decree
both
the
Rent
charge
,
of
200
l.
per
Annum
,
and
the
Farms
aforesaid
,
to
the
Plaintiff
,
but
the
Rent
charge
of
200
l.
per
Annum
to
the
Plaintiff
only
.
Boucher
contra
Antram
,
23
Car.
2.
fo.
(
97.
)
THe
Bill
is
,
Will
.
That
Alice
Lowman
the
Plaintiff
Katherines
late
Mother
,
did
in
Decemb.
1669.
by
Will
give
and
dispose
unto
the
Plaintiff
Katherine
a
Legacy
of
160
l.
and
made
the
Plaintiff
,
who
married
another
of
the
Daughters
,
Executor
.
The
Defendant
insists
,
That
the
Testatrix
made
her
Will
in
these
words
,
viz.
Item
,
I
give
unto
my
Daughter
Katherine
Boucher
the
sum
of
160
l.
for
her
to
have
the
use
of
it
during
her
life
,
and
her
Child
or
Children
to
have
it
after
her
decease
;
but
if
she
happens
to
dye
,
leaving
no
Child
surviving
her
,
I
Will
that
the
said
160
l.
shall
be
to
and
for
the
sole
benefit
and
use
of
my
Daughter
Elizabeth
Antram
and
her
Children
,
which
Elizabeth
is
the
Defendants
Wife
,
and
the
Defendant
is
willing
to
pay
the
said
160
l.
to
the
Plaintiffs
,
or
either
of
them
,
he
being
secured
against
the
title
and
claim
of
the
surviving
Child
or
Children
of
the
Plaintiff
Katherine
,
and
if
she
should
die
leaving
no
Child
or
Children
behind
her
,
then
against
the
Title
of
said
Elizabeth
and
her
Children
.
This
Court
decreed
the
Defendant
to
pay
unto
the
Plaintiff
160
l.
with
full
Interest
;
Personal
Estate
devised
to
one
for
life
,
and
after
to
her
Children
;
and
if
they
have
no
Issue
,
the
Remainder
over
,
is
a
void
Devise
as
to
the
Remainder
.
but
as
to
the
Clause
on
the
Will
which
directs
,
That
for
want
of
Issue
by
the
Plaintiff
Katherine
,
the
said
160
l.
after
her
decease
shall
be
to
and
for
the
benefit
and
behoof
of
the
Defendants
Wife
and
her
Children
.
His
Lordship
declared
,
it
being
a
Personalty
,
is
in
the
nature
of
a
Perpetuity
and
so
a
void
devise
,
and
therefore
the
Defendant
,
nor
his
Wife
and
Children
,
ought
to
have
any
benefit
thereby
,
but
be
debarred
from
the
same
,
and
that
the
said
160
l.
ought
to
be
absolutely
vested
in
,
and
come
unto
the
Child
or
Children
of
the
Plaintiff
Katherine
,
and
decreed
the
same
accordingly
.
Chambers
contra
Greenhill
,
24
Car.
2.
fo.
288.
A
Bill
of
Review
brought
by
the
Plaintiff
,
Bill
of
Review
,
because
the
Plaintiff
can
now
prove
a
Tender
and
Refusal
,
which
he
could
not
prove
before
,
dismist
.
to
Reverse
the
Decree
in
this
Cause
,
the
Plaintiff
would
now
Examine
to
a
matter
of
Tender
and
Refusal
,
which
he
could
not
prove
before
the
Hearing
,
but
since
the
Decree
signed
and
inrolled
he
can
prove
it
.
The
Court
ordered
Presidents
to
be
searched
,
which
being
produced
by
the
Plaintiff
,
his
Lordship
declared
the
said
Presidents
seemed
of
no
weight
to
the
Plaintiffs
purpose
,
and
dismissed
the
Bill
of
Review
.
Croster
contra
Wister
,
24
Car.
2.
fo.
688.
THe
Defendant
insists
,
Bill
of
Reviver
.
The
Plaintiff
ought
not
to
have
brought
a
Bill
of
Reviver
in
this
Case
,
but
to
have
taken
out
a
Subpoena
in
the
nature
of
a
Scire
facias
to
revive
the
Decree
,
the
same
being
signed
and
inrolled
in
the
life
time
of
the
Plaintiffs
Testator
;
therefore
the
Defendant
demurs
to
the
said
Bill
.
The
Plaintiff
insists
,
It
is
at
the
Plaintiffs
election
to
revive
the
said
Decree
inrolled
,
and
to
have
Execution
thereof
by
Bill
or
Subpoena
in
the
nature
of
a
Scire
fac
'
:
And
as
this
Case
is
,
the
whole
Proceedings
could
not
be
revived
by
Subpaena
,
Revivor
by
Bill
,
or
by
Scire
fac
'
,
when
proper
.
in
regard
several
Proceedings
have
been
relating
to
Costs
since
the
Decree
,
which
proceedings
can
be
only
revived
by
Bill
,
and
therefore
the
most
proper
course
was
,
to
revive
all
things
by
Bill
.
This
Court
held
the
said
Bill
to
be
well
brought
,
and
held
the
Demurrer
insufficient
.
Stoell
contra
Botelar
,
24
Car.
2.
fo.
390.
THat
a
Writ
of
Supplicavit
of
the
Peace
,
Supplicavit
of
the
Peace
on
Petition
,
and
not
on
Motion
nor
any
Indorsement
on
the
back
thereof
;
yet
good
.
issued
against
Sir
Oliver
Botelar
,
upon
a
Petition
and
Articles
exhibited
by
the
said
Stoell
.
The
Defendant
insists
,
The
said
Writ
issuing
on
Petition
,
and
not
on
a
Motion
in
Court
,
nor
any
Indorsement
made
on
the
back
of
the
Writ
,
as
by
the
form
of
the
Statute
is
required
,
and
but
three
of
the
said
Articles
are
sworn
to
by
the
Articulate
,
so
it
is
irregular
.
This
Court
on
reading
Presidents
,
notwithstanding
the
Objections
aforesaid
of
Botelar
,
was
fully
satisfied
,
that
the
Supplicavit
was
well
granted
and
warranted
.
Monnins
contra
Dom'
Monnins
,
24
Car.
2.
fo.
85.
(
178.
)
BILL
is
to
have
the
Defendant
to
discover
,
Demurrer
to
a
Bill
for
discovery
,
whether
the
Defendant
be
married
or
not
,
good
;
for
that
if
she
be
married
it
would
be
a
forfeiture
of
her
Estate
,
and
the
Bill
dismist
.
whether
she
be
married
since
the
death
of
Sir
Edmond
Monnins
her
late
Husband
:
The
Defendant
demurred
,
for
that
in
case
she
was
married
since
the
death
of
her
said
Husband
,
the
same
amounts
to
a
forfeiture
of
her
Estate
and
Interest
in
several
goods
and
things
,
devised
to
her
by
the
Will
of
her
said
Husband
,
to
be
held
and
enjoyed
by
her
during
such
time
as
she
should
continue
her
Widowhood
,
and
so
ought
not
to
discover
as
aforesaid
.
This
Court
held
the
Demurrer
good
,
unless
the
Plaintiff
produced
Presidents
,
which
the
Plaintiff
could
not
;
so
the
Bill
was
dismissed
with
Costs
.
Warren
contra
Johnson
,
24
Car.
2.
fo.
543.
THat
Mary
Warren
,
Mony
in
Trust
for
the
Children
of
I.
S.
it
shall
be
for
the
benefit
only
of
the
Children
that
he
then
had
,
and
not
born
afterward
.
the
Plaintiffs
Grandmother
,
put
60
l.
into
the
Defendants
hands
in
trust
,
for
the
benefit
of
the
Children
of
Mark
Warren
her
Son
,
who
at
that
time
had
but
three
Children
,
whereof
the
Plaintiff
was
one
;
but
now
hath
six
Children
.
This
Court
is
of
Opinion
,
That
the
said
60
l.
belonged
only
to
the
Children
of
the
said
Mark
Warren
,
which
he
had
by
his
then
Wife
at
the
time
when
the
said
Mony
was
given
,
and
decreed
the
same
accordingly
.
Wallop
contra
Dominam
Hewett
,
24
Car.
2.
fo.
218.
THe
Plaintiffs
Henry
and
John
Wallop
seek
Relief
for
400
l.
Legacies
given
by
a
Will
and
a
Codicil
,
and
are
distinct
not
one
and
the
same
.
viz.
200
l.
apiece
Legacy
,
given
them
by
the
Will
and
Codicil
of
the
Lady
Crofts
.
The
Case
is
,
That
the
Lady
Crofts
by
her
Will
gave
the
Plaintiffs
100
l.
apiece
,
and
afterwards
by
a
Codicil
annexed
to
her
Will
gave
the
Plaintiffs
100
l.
apiece
.
The
Question
is
,
Whether
the
said
Legacies
so
given
be
one
and
the
same
,
or
distinct
and
several
Legacies
,
or
what
her
Intention
was
in
reference
to
the
same
,
and
desire
the
Judgment
of
the
Court
therein
.
This
Court
,
with
the
Judges
,
on
Reading
the
said
Will
and
Codicil
were
of
Opinion
,
and
satisfied
,
That
the
said
Legacies
in
the
said
Will
and
Codicil
mentioned
are
not
one
and
the
same
,
but
distinct
and
several
Legacies
of
200
l.
and
decreed
the
Defendants
to
pay
the
said
Plaintiffs
400
l.
Thorne
contra
Newman
,
24
Car.
2.
fo.
(
371.
)
&
24
Car.
2.
fo.
8.
THat
Nicholas
Burnell
,
Deed
of
Revocation
.
Father
of
the
Defendant
Margaret
Newman
being
seised
of
the
premisses
in
1652.
demised
the
same
to
Elizabeth
Stone
for
99
years
at
a
Pepper-Corn
,
with
a
Proviso
to
be
void
on
payment
of
590
l.
and
the
said
Elizabeth
died
and
made
Elizabeth
Wheat
her
Executrix
,
and
Thomas
Baker
marrying
the
Defendant
Margaret
Newman
in
November
1657.
Elizabeth
Wheat
and
the
said
Nicholas
Burnell
Assigning
the
premisses
to
Thomas
Baker
,
and
the
said
Baker
for
500
l.
borrowed
of
the
Plaintiff
,
Assigned
to
one
Minterne
in
Trust
for
the
Plaintiff
in
1659
,
and
Baker
failing
in
payment
contracted
with
the
Plaintiff
for
770
l.
more
,
that
he
would
give
his
Interest
in
the
premisses
absolutely
,
without
any
power
of
redemption
,
and
Baker
and
Minterne
did
joyn
accordingly
in
1660.
And
the
Plaintiff
insists
,
That
the
Defendant
claims
the
premisses
by
a
Deed
dated
the
19th
of
August
1659.
whereby
it
is
pretended
,
That
by
Indenture
made
between
the
said
Old
Burnell
of
the
one
part
,
and
Thomas
Lewis
and
Bartholomew
Pickering
of
the
other
part
,
the
said
Burnell
in
Consideration
of
the
Natural
love
and
affection
to
the
said
Margaret
,
and
for
the
setling
and
confirming
of
the
premisses
for
the
uses
therein
,
and
for
5
s.
Covenanted
to
stand
seized
of
the
premisses
to
himself
for
life
,
Remainder
to
the
Defendant
Margaret
for
life
,
then
to
the
Wife
of
the
said
Thomas
Baker
,
Remainder
to
the
Heirs
of
her
Body
,
with
Remainders
over
,
and
the
said
Burnell
dying
in
1659.
the
premisses
then
vested
in
Margaret
,
and
that
Baker
in
her
Right
became
seised
of
the
Freehold
thereof
,
and
that
thereby
the
Remainder
of
the
said
term
of
99
years
was
drowned
,
Term
drowning
in
a
Freehold
.
and
so
the
Assignment
to
Minterne
,
and
the
Assignment
by
Baker
and
Minterne
to
the
Plaintiff
was
void
,
and
so
the
Plaintiff
a
purchaser
for
1300
l.
like
to
be
defeated
.
And
the
Plaintiff
further
insists
,
That
if
the
said
Deed
were
ever
sealed
,
it
is
with
a
Proviso
of
Revocation
,
to
be
void
on
payment
or
tender
of
12
d.
to
Lewis
or
Pickering
,
or
either
of
them
in
the
Middle-Temple-Hall
,
and
that
Burnell
did
tender
12
d.
to
Lewis
with
intention
to
make
void
the
said
Deed
,
and
declared
so
to
Lewis
,
that
she
did
revoke
the
said
Deed
,
and
pulled
the
Seal
off
from
it
,
and
that
a
Memorandum
was
Indorsed
on
the
backside
of
the
Deed
,
That
there
was
22
Octob.
1659.
12
d.
tendered
to
Lewis
to
revoke
the
said
Deed
;
but
the
Defendants
pretend
,
because
the
12
d.
was
not
tendered
in
the
Middle-Temple-Hall
,
therefore
the
Revocation
was
not
legal
,
and
so
the
said
Deed
still
in
force
,
and
the
Plaintiffs
Estate
drowned
.
The
Defendants
admit
the
Case
to
be
as
aforesaid
,
but
insist
,
That
the
said
Deed
19
Aug.
1659.
was
intended
for
a
Settlement
on
the
Defendant
Margaret
,
for
a
provision
for
her
after
the
death
of
the
said
Baker
her
Husband
,
he
having
not
made
any
Joynture
,
and
that
the
said
Defendants
claim
the
premisses
by
the
said
Deed
,
whereby
immediately
upon
the
death
of
Burnell
,
the
Freehold
of
the
Premisses
vested
in
Baker
in
right
of
the
said
Margaret
his
Wife
,
and
so
the
Plaintiffs
Estate
was
drowned
,
and
that
Baker
was
not
by
intention
of
the
said
Deed
,
to
sell
away
the
premisses
for
any
longer
time
than
his
own
life
without
the
said
Margarets
Consent
,
and
Joyning
with
him
in
a
Fine
thereof
.
And
the
Defendants
further
insist
,
That
the
12
d.
ought
to
have
been
tendred
in
the
Middle-Temple
Hall
,
else
the
Deed
must
be
in
force
;
and
if
any
Memorandum
or
Declaration
were
made
,
as
aforesaid
,
the
same
was
done
out
of
design
only
,
to
have
the
said
Baker
make
the
said
Margaret
a
Joynture
.
But
the
Plaintiff
insists
,
That
he
ought
to
hold
the
said
premisses
for
the
residue
of
the
said
term
for
99
years
against
the
said
Deed.
This
Court
was
satisfied
,
That
the
Plaintiff
ought
in
Equity
to
enjoy
the
premisses
against
the
Defendants
,
Voluntary
Deed
set
aside
against
a
purchaser
.
and
that
the
said
Deed
ought
to
be
set
aside
,
as
against
the
Plaintiff
;
but
the
Defendants
are
to
redeem
.
The
Bill
being
to
set
aside
a
pretended
voluntary
Conveyance
set
on
foot
by
the
Defendant
,
Conveyance
with
power
of
Revocation
on
payment
of
12
d.
at
such
a
place
,
12
d.
was
tendered
at
another
place
,
with
express
declaration
to
revoke
the
Deed.
which
Deed
is
with
power
of
Revocation
upon
the
tender
of
12
d.
and
the
12
d.
was
tendered
accordingly
with
intent
to
revoke
the
said
Deed
,
and
the
said
Deed
is
accordingly
Cancelled
;
but
the
Defendants
,
in
respect
the
12
d.
was
not
tendered
at
the
place
appointed
,
set
the
said
Deed
up
at
Common
Law
,
and
upon
a
Trial
at
Law
,
without
any
defence
made
by
the
Plaintiff
,
the
Defendants
were
Nonsuited
,
and
the
Plaintiff
being
a
purchaser
of
the
premisses
,
first
by
Mortgage
for
500
l.
and
afterwards
by
absolute
Assignment
for
770
l.
more
.
The
Lord
Keeper
,
upon
reading
the
said
Cancelled
Deed
,
saw
no
cause
to
alter
the
Master
of
the
Rolls
his
Decree
aforesaid
,
but
ordered
the
same
to
stand
Confirmed
.
Comes
Sterling
contra
Levingston
,
24
Car.
2.
fo.
113.
&
432.
THat
Sir
Peter
Vanlore
the
Elder
being
seised
in
Fee
of
the
Lands
,
by
Deed
Covenanted
to
stand
seised
thereof
to
several
uses
,
under
which
all
parties
to
the
Suit
claim
several
parts
of
the
premisses
;
and
here
being
a
Proviso
in
the
said
Deed
,
That
if
young
Sir
Peter
Vanlore
,
or
the
Issue
(
whose
Issues
and
Heir
the
now
Plaintiffs
are
)
should
attempt
to
impeach
the
said
Settlement
,
that
then
the
uses
to
him
and
them
limited
by
the
said
Deed
should
be
void
,
and
that
by
the
death
of
several
persons
,
several
parts
of
the
premisses
were
accrued
to
the
said
Plaintiffs
,
but
that
by
reason
of
the
said
Proviso
and
several
Ambiguities
in
the
said
Deed
,
it
was
doubtful
to
what
parts
the
Plaintiffs
,
Settlement
with
Proviso
not
to
attempt
the
impeachment
of
it
.
Court
dirccted
a
Trial
at
Law
,
and
that
the
Trial
should
be
no
forfeiture
.
the
Heirs
general
,
were
intitled
unto
,
so
to
be
protected
against
the
said
Proviso
,
and
to
have
the
partition
of
the
Lands
is
the
Bill
.
His
Lordship
declared
,
it
was
most
fit
that
a
Trial
at
Law
be
had
touching
the
Plaintiffs
Right
and
Title
,
and
that
such
Action
to
be
brought
shall
not
be
taken
or
construed
a
breach
of
the
Proviso
aforesaid
,
or
forfeiture
of
the
Plaintiffs
Right
and
Title
to
the
premisses
.
Smith
contra
Sallett
,
24
Car.
2.
fo.
382.
THe
Bill
is
to
have
an
Issue
directed
by
this
Court
,
to
try
whether
the
Fines
of
the
Copyholders
,
due
to
the
Lord
of
the
Mannor
,
were
certain
or
arbitrary
.
The
Defendant
insisted
,
Fines
of
Copyholder
,
whether
certain
or
arbitrary
;
it
having
been
tried
at
Law
,
the
Court
would
not
relieve
the
Plaintiff
,
other
than
for
the
preservation
of
Witnesses
.
That
there
had
been
several
Trials
already
,
and
Verdicts
have
passed
for
a
Fine
certain
,
and
particularly
,
one
in
Ejectment
before
Mr.
Justice
Windham
,
and
another
before
the
Lord
Chief
Justice
Hales
upon
a
Special
Issue
,
directed
out
of
the
Exchequer
,
Whether
the
Fines
were
certain
at
8
d.
an
Acre
,
and
8
d.
a
Cottage
,
or
not
?
And
a
Verdict
passed
on
both
Trials
for
a
Fine
certain
.
This
Court
declared
,
They
could
not
relieve
the
Plaintiff
in
Equity
,
other
than
for
the
preservation
of
Testimony
,
and
dismissed
the
Plaintiffs
Bill
.
Lewis
contra
Lewis
&
al'
,
24
Car.
2.
fo.
664.
This
is
on
a
Case
stated
,
viz.
THat
the
Lord
St.
Will
.
John
and
his
Trustees
demised
a
Lease
on
the
premisses
for
99
years
,
unto
the
Defendant
Turner
,
if
the
Plaintiff
Alice
,
then
Wife
of
Dr.
William
Lewis
,
and
Theodore
Lewis
Son
of
the
said
Dr.
Lewis
,
and
one
Feilder
,
or
either
of
them
should
so
long
live
.
That
this
Lease
was
made
at
the
nomination
of
,
and
in
Trust
for
the
said
Dr.
Lewis
:
That
after
in
July
1666.
the
Doctor
made
his
Will
,
and
as
to
the
premisses
devised
them
to
the
said
Alice
for
life
,
and
after
her
death
then
to
the
said
Theodore
Lewis
,
to
be
disposed
of
as
the
said
Doctor
shall
appoint
them
by
his
Will
in
writing
or
Deed
,
and
of
his
Will
made
the
said
Alice
his
Executrix
:
That
in
March
1667.
by
a
Declaration
in
writing
,
to
which
the
said
Doctor
and
the
Defendant
Turner
are
parties
,
and
executed
by
them
both
,
the
Trust
of
the
premisses
was
thus
declared
,
viz.
for
the
said
Doctor
for
life
,
afterwards
for
such
person
or
persons
as
the
said
Doctor
by
his
Will
or
Deed
should
appoint
,
and
in
default
then
for
the
Executors
or
Administrators
of
the
said
Doctor
:
That
in
July
1667.
the
Doctor
died
without
making
any
other
Will
or
Deed
,
or
other
Appointmen
,
for
the
disposing
of
the
premisses
:
That
Alice
,
by
virtue
of
the
said
Will
and
Deed
,
entred
and
possessed
the
premisses
:
That
it
appears
also
in
the
Case
,
Parol
Declaration
of
ones
Intent
,
not
good
against
a
Declaration
in
writing
.
some
Proof
was
offered
touching
a
Parol
Declaration
of
the
said
Dr.
Lewis
his
Intention
,
that
the
Son
Theodore
should
have
the
benefit
of
the
said
Lease
;
but
that
being
by
Parol
against
a
Declaration
in
writing
,
the
Court
conceived
it
not
material
in
the
Case
;
and
that
it
is
also
in
the
Case
,
that
the
said
Theodore
claimeth
so
much
of
the
term
as
should
be
behind
at
the
death
of
the
said
Alice
,
and
that
the
said
Alice
claims
the
whole
term
,
as
Executrix
to
the
said
Dr.
Lewis
.
The
Court
at
the
first
Hearing
was
assisted
with
the
Mr.
Justice
Atkyns
,
Trust
of
a
term
devised
to
J.S.
and
then
to
J.
D.
to
be
disposed
of
as
the
Testator
should
appoint
by
his
Will
or
Writing
.
He
makes
a
Writing
,
and
declares
it
to
himself
for
life
,
and
after
to
such
persons
as
he
should
by
Will
or
Deed
appoint
,
and
for
default
of
that
,
to
his
Executors
,
and
made
no
other
Will
or
Deed
,
the
Executor
shall
have
it
.
who
inclined
to
be
of
Opinion
for
the
said
Theodore
,
and
that
the
said
Defendant
Turner
,
the
Trustee
,
ought
to
execute
the
Trust
for
him
:
But
his
Lordship
differing
in
Opinion
,
and
having
since
advised
upon
the
Case
with
Mr.
Justice
Windham
,
and
several
other
of
the
Judges
,
who
were
all
clear
of
Opinion
,
That
according
to
the
Declaration
in
writing
,
the
Plaintiff
Alice
,
the
Executrix
,
is
well
intituled
to
the
benefit
of
the
said
Lease
.
This
Court
therefore
doth
decree
,
That
Turner
the
Trustee
do
execute
the
trust
,
and
convey
and
assign
the
said
Lease
,
and
the
remainder
of
the
term
therein
,
to
the
Plaintiff
Alice
or
whom
she
shall
appoint
.
Lance
contra
Norman
,
24
Car.
2.
fo.
233.
THe
Plaintiff
Lance
his
Suit
is
,
Recognizance
.
that
the
day
before
the
Marriage
of
the
Plaintiff
and
his
Wife
,
the
said
Plaintiffs
Wife
was
perswaded
to
enter
into
a
Recognizance
of
2000
l.
without
defezance
to
the
Defendant
Norman
,
being
the
Plaintiffs
Wives
Brother
,
to
which
the
Plaintiff
was
not
privy
or
consented
,
which
Recognizance
the
Plaintiff
seeks
to
have
set
aside
and
vacated
.
The
Defendant
Norman
insists
,
That
the
Plaintiff
was
Suiter
to
his
Sister
designing
to
gain
her
Estate
,
but
she
not
likely
to
have
Children
,
intended
the
said
Defendant
Norman
part
of
her
Estate
;
and
upon
that
account
gave
the
said
Recognizance
,
and
at
that
time
the
said
Norman
was
in
the
Country
,
and
no
ways
knowing
of
it
,
nor
had
contrivance
in
it
,
but
the
said
Plaintiff
proving
unkind
to
his
Wife
,
and
turned
her
out
of
doors
,
and
parted
with
her
,
not
making
any
provision
for
her
;
This
Defendant
hath
put
the
same
in
Suit
.
The
Plaintiff
insisted
,
that
his
said
Wife
voluntarily
absented
from
him
,
and
took
and
conveyed
awaygreat
part
of
his
Estate
,
and
hath
acted
as
a
most
insolent
and
undutiful
Wife
,
and
entred
into
the
said
Recognizance
without
his
privity
.
This
Court
being
assisted
with
the
Judges
was
satisfied
,
that
the
said
Recognizance
was
entred
into
the
very
day
before
Marriage
without
defezance
or
the
Plaintiffs
privity
,
whereby
to
defraud
the
Plaintiff
,
and
one
witness
only
deposed
the
Plaintiffs
consent
to
the
drawing
the
said
Recognizance
,
who
hath
an
Assignment
of
the
same
to
himself
.
The
Court
decreed
the
said
Recognizance
to
be
set
a
side
,
A
Recognizance
entred
into
by
the
Wife
the
day
before
Marriage
,
set
a
side
and
a
perpetual
injunction
.
and
vacated
on
the
Record
thereof
,
and
a
perpetual
injunction
is
granted
against
it
,
and
this
Court
proposed
on
the
said
Plaintiffs
Wives
returning
back
all
the
Estate
which
she
took
and
conveyed
away
,
that
the
Plaintiff
do
allow
her
20
l.
per
Annum
,
which
was
consented
to
by
the
Plaintiff
,
for
her
separate
maintainance
.
Howard
&
Vxor
contra
Hooker
,
2
Car.
2.
fo.
587.
BIll
is
to
set
aside
a
Deed
made
by
the
Plaintiff
Eliz.
in
Feb.
1666.
Frandulent
Deed.
before
her
Marriage
with
the
Plaintiff
Sir
Philip
Howard
,
and
that
the
Plaintiff
Sir
Philip
,
in
right
of
his
said
Wife
might
have
all
her
benefit
and
interest
in
or
to
the
Estate
of
Sir
John
Baker
her
former
Husband
,
and
receive
the
Rents
and
profits
of
the
premisses
.
The
Case
being
,
that
Sir
John
Baker
the
Father
being
seized
in
Fee
of
Lands
by
two
Deeds
Tripartite
of
Lease
and
Release
made
between
himself
of
the
one
part
,
Sir
Robert
Newton
deceased
of
the
second
,
and
Sir
John
Baker
the
Son
and
Dame
Eliz.
the
Plaintiff
,
and
sole
Daughter
of
Sir
Robert
Newton
of
the
third
part
,
in
consideration
of
a
Marriage
between
the
Plaintiff
Dame
Eliz.
and
Sir
John
Baker
the
Son
,
and
4000
l.
portion
,
conveyed
the
same
to
Sir
Robert
Newton
and
his
Heirs
,
part
of
which
Lands
were
for
the
said
Dame
Eliz.
Joynture
;
and
Sir
John
Baker
the
Father
,
and
Dame
Mary
his
Wife
being
dead
,
Sir
John
the
Son
sold
part
of
the
premisses
for
payment
of
debts
,
part
whereof
was
the
Joynture
of
Dame
Eliz.
and
in
consideration
of
the
said
Dame
Elizabeth
joyning
in
such
sale
,
and
parting
with
her
Joynture
,
Sir
John
her
Husband
in
lieu
thereof
,
and
of
1500
l.
to
be
paid
to
Dame
Elizabeth
for
a
Joynture
house
,
limitted
the
premisses
unsold
to
the
said
Dame
Elizabeth
and
the
Defendants
for
400
years
upon
Trust
,
by
Sale
thereof
to
pay
the
said
Dame
Elizabeth
the
said
1500
l.
and
also
the
Rents
and
profits
of
the
whole
until
Sale
,
and
the
residue
of
the
said
premisses
remaining
unsold
to
Dame
Elizabeth
during
her
life
,
and
after
to
wait
on
the
Inheritance
.
And
in
1658
the
Inheritance
was
conveyed
to
Sir
Robert
Newton
and
his
Heirs
,
and
he
by
Will
devised
the
same
to
the
said
Dame
Elizabeth
for
life
,
Remainder
to
the
first
Son
of
the
Plaintiff
Sir
Philip
and
Dame
Elizabeth
;
so
the
Plaintiff
being
intituled
to
the
1500
l.
and
the
term
of
400
years
after
the
Trusts
performed
,
and
so
ought
in
right
of
the
said
Dame
Elizabeth
his
Lady
,
to
continue
in
the
possession
of
the
premisses
,
and
receive
the
Rents
and
profits
thereof
,
which
the
Defendants
refused
to
do
,
pretending
the
term
of
400
years
is
limited
to
them
upon
other
Trusts
,
and
in
particular
that
the
Plaintiff
Dame
Elizabeth
before
her
Marriage
to
the
Plaintiff
Sir
Philip
,
by
her
Deed
of
the
9th
of
February
1666
,
Assigned
to
the
Defendants
all
monies
then
due
,
or
to
be
payable
to
her
by
vertue
of
the
Deed
in
Trust
for
her
benefit
,
and
to
be
at
her
disposing
during
the
Joynt
lives
of
her
and
the
said
Sir
Philip
,
whether
she
Married
or
continued
Sole
,
and
that
she
should
have
power
by
writing
under
her
Hand
and
Seal
to
dispose
thereof
,
for
the
benefit
of
her
Daughter
by
her
former
Husband
,
and
that
she
hath
disposed
thereof
accordingly
,
which
said
Deed
the
Plaintiff
insists
is
fraudulent
or
with
power
of
revocation
,
and
never
mentioned
to
Sir
Phillip
,
and
that
Sir
Philip
after
his
Marriage
setled
500
l.
per
Annum
,
on
the
said
Dame
Elizabeth
for
a
Joynture
,
which
he
would
not
have
done
,
if
he
had
known
or
understood
the
said
Dame
Elizabeth
had
made
such
Deed
or
disposition
as
aforesaid
of
her
former
Husbands
Estate
;
and
since
their
Marriage
she
desired
leave
of
Sir
Philip
that
she
might
receive
the
Rents
and
profits
of
the
said
Lands
of
her
former
Husband
without
mentioning
the
said
Deed
,
and
therefore
the
same
ought
to
be
set
aside
.
The
Defendants
do
insist
,
the
said
Dame
Elizabeth
before
her
Marriage
with
the
said
Philip
did
declare
to
him
that
who
ever
did
Marry
her
should
have
no
benefit
of
any
Estate
that
she
had
by
her
former
Husband
,
and
that
Sir
Philip
did
agree
to
bar
himself
thereof
,
and
take
no
benefit
thereby
,
A
Widow
makes
a
Deed
of
her
former
Husband
Estate
and
marries
,
the
second
Husband
not
privy
to
it
;
the
Deed
set
aside
,
and
the
second
Husband
to
enjoy
the
Estate
.
and
that
Sir
Robert
Newton
looking
upon
the
Estate
as
setled
on
his
Grand-children
as
aforesaid
,
and
had
given
his
personal
Estate
and
700
l.
per
Annum
to
the
Plaintiffs
and
their
Sons
,
and
the
said
Sir
Robert
Newton
never
pretended
right
to
the
said
Estate
,
or
intermedled
therewith
,
that
there
is
no
reason
to
set
a
side
the
said
Deed
of
the
9th
of
Feb.
aforesaid
.
This
Court
being
assisted
with
the
Judges
on
reading
the
said
Deed
,
it
not
appearing
unto
this
Court
that
the
said
Sir
Philip
had
any
notice
of
the
said
Deed
9th
of
Feb.
1666.
till
after
the
death
of
the
said
Sir
Robert
Newton
,
which
was
several
years
after
the
Marriage
,
nor
was
privy
or
consented
to
the
making
of
any
such
Deed
;
but
haveing
intimation
that
Dame
Elizabeth
intended
to
dispose
of
her
interest
in
her
former
Husbands
Estate
,
from
such
Husband
as
she
should
Marry
,
broka
off
the
treaty
of
Marriage
,
which
was
afterwards
brought
on
again
by
some
Friends
of
the
said
Dame
Elizabeth
,
and
that
the
said
Sir
Philip
was
induced
to
Marry
the
said
Dame
Elizabeth
,
upon
the
hopes
and
confidence
of
having
the
interest
she
had
in
the
Estate
of
the
said
Sir
John
Baker
her
former
Husband
,
without
which
he
would
never
have
married
her
,
and
that
the
said
Sir
Philip
never
knew
of
the
said
Deed
of
the
9th
of
Feb.
1666
,
but
the
same
was
a
fraud
upon
Sir
Phillip
,
and
that
therefore
no
use
ought
to
be
made
thereof
and
decreed
the
said
Deed
of
the
9th
of
Feb.
1666
,
be
absolutely
set
aside
,
and
no
use
to
be
made
thereof
against
the
said
Sir
Philip
,
or
any
claiming
under
him
.
Poter
contra
Habbert
,
24
Car.
2.
fo.
591.
THis
Bill
is
to
have
a
redemption
of
a
Mortgage
made
in
1636
,
Mortgage
.
by
the
Plaintiffes
Father
,
to
one
Abraham
Dawes
for
5000
l.
and
for
non-payment
of
the
Mortgage
mony
,
Sir
Thomas
Dawes
Son
and
Heir
of
the
said
Abraham
Dawes
,
entred
in
1641
,
and
he
and
his
Assigns
have
ever
since
taken
the
profits
.
And
the
Defendant
insists
,
that
the
said
Thomas
Dawes
in
49
conveyed
the
mortgaged
premisses
,
to
Hugh
Hubbert
the
Defendants
Father
for
7000
l.
and
that
in
1641
,
when
Sir
Thomas
Dawes
entred
there
was
5000
l.
due
on
the
Mortgage
besides
interest
,
so
he
would
be
charged
without
350
l.
per
Annum
,
for
mean
profits
since
that
time
,
and
would
have
6
l.
per
Cent.
Interest
for
the
7000
l.
from
the
time
it
appearing
on
the
conveyance
.
This
Cause
being
first
heard
by
Judge
Ransford
,
who
ordered
the
Plaintiffs
to
redeem
,
Computation
of
interest
monies
according
to
the
Statute
in
force
.
and
the
account
for
the
Interest
of
the
500
l.
to
begin
from
1636
,
the
time
of
lending
the
mony
,
and
from
that
to
1642
Interest
to
be
paid
according
to
Acts
then
in
force
,
and
from
42
to
46
Interest
at
8
l.
and
4
l.
per
Cent.
The
Cause
being
heard
again
by
the
Lord
Keeper
Bridgeman
,
assisted
with
Judge
Tyrrle
,
Morton
and
Wild
,
who
ordered
the
Plaintiff
to
pay
interest
for
for
the
5000
l.
to
1641
at
8
l.
per
Cent.
and
from
41
to
49
,
the
certain
profits
of
the
Mortgaged
premisses
to
go
in
discharge
of
the
interst
till
that
time
,
and
that
if
the
remaining
interest
with
the
5000
l.
should
in
49
amount
to
7000
l.
then
the
Plaintiff
to
pay
Interest
for
7000
l.
else
only
for
so
much
as
the
principal
and
Interest
,
according
to
the
Statutes
in
force
.
This
Cause
was
again
Reheard
by
the
Lord
Chancellor
Shaftsbury
,
assisted
with
Judge
Vaughan
,
and
Judge
Ransford
.
The
Defendant
insisted
,
that
setting
of
the
interest
against
the
certain
profits
from
41
to
49
as
aforesaid
,
was
a
great
advantage
to
the
Plaintiff
,
and
that
after
so
long
a
time
the
Plaintiff
ought
not
to
be
permitted
to
redeem
.
This
Court
nevertheless
was
satisfied
,
That
the
Plaintiff
ought
to
redeem
,
and
the
Matters
now
in
Controversie
being
,
Whether
the
certain
Profits
of
the
premisses
shall
go
against
the
Interest
from
41
to
49
,
or
not
;
and
whether
the
Plaintiff
shall
pay
Interest
for
any
more
than
the
50000
l.
first
lent
,
or
not
;
and
what
Interest
he
shall
pay
at
least
during
the
hard
times
of
War
.
This
Court
on
hearing
Presidents
was
clear
of
Opinion
,
The
certain
Profits
of
the
premisses
,
set
against
the
Interest
.
That
the
Setting
the
certain
Profits
of
the
premisses
against
the
Interest
from
41
to
49
,
ought
to
be
discharged
,
and
decreed
the
same
accordingly
.
And
touching
that
Point
,
for
what
Monies
the
Plaintiff
shall
pay
Interest
,
either
for
the
5000
l.
only
,
or
any
greater
Sum.
This
Court
with
the
Judges
were
of
Opinion
,
That
the
Plaintiff
ought
not
to
pay
Interest
for
any
greater
Sum
,
than
only
for
the
5000
l.
the
Original
Mortgages
:
This
Court
declaring
,
there
is
no
Reason
to
give
Interest
upon
Interest
,
Interest
upon
Interest
.
and
that
the
now
Defendant
ought
not
to
be
in
any
better
condition
than
Sir
Abraham
Dawes
the
first
Mortgagee
.
Crisp
contra
Bluck
,
25
Car.
2.
fo.
357.
THis
Case
comes
to
be
heard
upon
a
Bill
of
Review
,
Bill
of
Review
.
and
an
Appeal
from
a
Decree
made
by
the
Lord
Chancellor
Shaftsbury
;
the
Plaintiffs
Original
Bill
being
to
be
relieved
against
a
Bond
of
1600
l.
penalty
for
payment
of
1000
l.
and
Interest
,
entred
by
the
Plaintiffs
Father
,
the
Testator
and
others
,
to
William
Bluck
the
younger
in
1642.
The
Defendant
commenced
Suit
on
the
said
Bond
in
1662.
Bond
and
Judgment
after
upon
it
,
and
the
Principal
and
Interest
far
surmounted
the
Penalty
when
Judgment
was
entred
;
how
payment
of
Monies
shall
be
applied
in
such
case
.
and
had
Judgment
thereupon
against
the
Plaintiffs
Father
only
,
and
the
Principal
and
Interest
due
on
the
said
Bond
far
surmounting
the
Penalty
when
Judgment
was
obtained
,
and
the
Defendant
being
20
years
kept
out
of
his
Mony
,
but
having
received
several
Sums
in
part
since
the
Action
at
Law
brought
,
it
was
decreed
,
That
whatever
Monies
were
received
before
the
Judgment
actually
entred
,
should
be
taken
in
discharge
of
the
Interest
of
the
said
1000
l.
Original
debt
,
and
that
the
Defendant
should
be
satisfied
after
the
Judgment
entred
,
the
whole
Mony
thereupon
recovered
with
damages
from
the
time
the
Judgment
was
actually
entred
,
deducting
what
he
had
received
since
the
actual
entry
of
the
Judgment
,
and
allowing
his
Costs
at
Law
,
and
moderate
Costs
in
this
Court
:
And
it
was
found
,
that
the
Judgment
was
not
actually
entred
till
the
Vacation
after
Michaelmass
Term
1662.
and
so
only
250
l.
paid
in
November
1662.
Whether
Mony
paid
shall
be
applied
to
discharge
Interest
of
the
Original
debt
,
or
towards
satisfaction
Recovered
by
Judgment
on
the
same
Bond.
Judgment
,
when
said
to
be
entred
.
was
accounted
Interest
of
the
Original
debt
,
and
not
towards
the
Mony
recovered
by
the
Judgment
,
and
the
Account
was
so
setled
and
decreed
,
and
the
Mony
paid
accordingly
.
Yet
for
Reversal
of
the
said
Decree
,
the
now
Plaintiff
for
Error
assigns
,
that
the
same
tends
to
the
invalidating
of
the
Course
of
the
Court
of
Kings
Bench
,
it
being
by
the
Decree
admitted
,
that
the
said
Judgment
was
entred
in
the
Vacation
after
Michaelmass
Term
1662.
and
not
before
Whereas
it
is
evident
by
the
Records
of
the
Kings-Bench
,
the
said
Judgment
was
entred
on
Record
in
Michaelmass
Term
1662.
and
by
construction
of
Law
is
supposed
and
presumed
to
be
Recorded
the
first
day
of
that
Term
,
against
which
Record
no
Evidence
or
Averment
ought
to
be
admitted
,
and
all
Monies
paid
after
the
first
day
of
that
Term
,
ought
in
Equity
to
be
applied
towards
satisfaction
of
the
Judgment
,
and
so
the
250
l.
paid
in
November
1662.
in
part
of
a
debt
in
question
ought
not
to
go
to
satisfie
the
Interest
,
but
in
part
to
discharge
the
Principal
.
The
Lord
Chancellor
Shaftsbury
was
of
Opinion
,
If
entred
before
the
Effoin-day
of
the
subsequent
Term
,
ought
to
be
accounted
a
Judgment
of
the
preceding
Term.
That
no
Notice
could
be
taken
of
any
actual
entry
of
any
Judgment
at
Law
but
that
every
Jugment
whensoever
entred
,
if
before
the
Essoin
day
of
the
subsequent
Term
ought
to
be
accounted
a
Judgment
of
the
first
day
of
the
Term
before
,
and
allowed
and
held
the
said
Error
to
be
good
,
and
decreed
the
250
l.
paid
in
Nov.
1662.
should
go
and
be
applied
as
part
of
satisfaction
of
the
1600
l.
and
damages
due
on
the
Judgment
,
and
what
other
Monies
were
paid
by
any
other
of
the
Obligors
,
their
Heirs
,
Executors
,
Administrators
or
Assigns
,
since
the
20th
of
October
1662.
if
not
paid
on
other
account
,
shall
be
applied
in
further
satisfaction
of
the
said
Judgment
,
first
to
discharge
the
Interest
,
and
then
to
sink
the
Principal
,
and
as
to
so
much
did
reverse
the
said
Decree
,
and
the
Defendant
appealed
from
this
said
Decree
to
the
Lord
Keeper
Finch
,
and
insisted
,
That
by
his
Answer
to
the
Original
Bill
,
said
,
when
the
250
l.
was
paid
,
the
Judgment
was
not
entred
,
and
presently
after
Hearing
the
Original
Cause
,
the
late
Lord
Keeper
Bridgman
calling
to
his
Assistance
the
Master
of
the
Rolls
,
who
declared
,
That
the
Defendant
should
not
account
for
any
Mony
,
as
received
on
the
Judgment
,
until
the
said
Judgment
(
which
was
his
Security
)
was
really
and
actually
entred
,
if
the
Plaintiff
insisted
as
before
,
which
was
Over-ruled
;
and
the
Plaintiff
then
brought
a
Bill
of
Review
;
to
which
the
Defendant
pleaded
and
demurred
,
and
thereupon
the
Lord
Bridgman
declared
the
Decree
to
be
Just
,
as
to
the
250
l.
and
the
Decree
made
by
the
Lord
Shaftsbury
is
to
unravel
the
Account
setled
,
and
to
charge
the
Defendant
with
4000
l.
when
by
the
Original
Bill
or
Bills
of
Review
,
they
do
not
charge
him
with
above
the
Penalty
of
the
said
Judgment
.
This
Court
now
declared
,
That
the
Examination
of
the
time
of
the
actual
Entry
of
the
Judgment
in
this
Case
,
Examination
of
the
actual
entry
of
a
Judgment
at
Law
,
only
intended
to
inform
the
Court
,
and
not
to
impeach
the
Judgment
.
did
not
impeach
the
Judgment
,
but
only
to
guide
the
Conscience
of
the
Court
in
the
application
of
the
payment
of
the
Mony
,
and
therefore
(
as
this
Case
is
)
the
whole
Mony
having
been
decreed
and
setled
as
aforesaid
,
the
Examination
of
the
time
of
the
actual
Entry
of
the
said
Judgment
,
tended
not
to
the
invalidating
thereof
,
but
only
to
inform
the
Court
,
when
and
how
it
came
to
be
Recorded
,
Examination
of
Originals
filed
,
is
to
be
in
the
Courts
at
Law
.
which
in
Cases
of
Originals
filed
,
to
prevent
the
Statutes
of
Limitation
,
and
other
Cases
of
like
nature
,
are
usually
Examined
in
the
Courts
at
Law
,
the
Court
saw
no
cause
to
relieve
the
Plaintiffs
on
their
Bill
of
Review
,
and
dismissed
their
Bill
of
Review
.
Dethick
contra
Banks
,
25
Car.
2.
fo.
143.
A
Free-man
of
London
did
assign
over
an
Adventure
to
the
Defendant
his
Son
,
A
Free-man
of
London
disposeth
an
Adventure
to
his
Son
.
No
breach
of
the
Custom
,
as
to
the
Wives
third
part
.
against
which
the
Plaintiff
complains
,
and
insists
,
It
is
contrary
to
the
Custom
of
London
,
and
tends
to
defeat
the
Plaintiff
his
Wife
of
a
full
third
part
of
the
personal
Estate
:
This
Court
with
the
Judges
held
the
disposition
to
be
good
,
and
could
not
relieve
the
Plaintiff
.
Harmer
contra
Brooke
,
25
Car.
2.
fo.
648.
THe
Bill
is
to
have
an
Execution
of
a
Marriage
Agreement
;
Bill
to
perform
a
Marriage
Agreement
.
the
Plaintiff
Harmer
,
with
the
encouragement
of
Thomas
Hamling
,
was
to
marry
the
Plaintiff
Elizabeth
,
the
only
Daughter
and
Heir
of
the
said
Thomas
Hamling
(
the
Plaintiff
Harmer
being
a
man
of
a
great
Trade
)
and
in
Consideration
thereof
the
said
Thomas
Hamling
was
to
pay
the
Plaintiff
Harmer
500
l.
at
Christmass
following
,
and
to
settle
on
the
Plaintiff
and
his
Heirs
a
House
in
Sussex
,
and
at
his
death
to
give
to
the
Plaintiff
Elizabeth
his
Daughter
all
his
Estate
real
and
personal
,
except
400
l.
which
he
intended
to
the
Defendant
his
Brothers
Son
,
whereupon
the
Plaintiff
Harmer
married
the
said
Elizabeth
;
but
now
the
said
Thomas
Hamling
,
the
Plaintiffs
Father
refuses
to
perform
his
Agreement
and
Promise
aforesaid
,
the
Plaintiff
marrying
without
his
consent
and
liking
,
as
is
pretended
,
and
died
without
performance
thereof
,
and
made
a
Will
,
and
the
Defendant
his
Executor
,
which
Will
the
Plaintiff
insists
was
voluntary
,
and
ought
in
Equity
to
be
set
aside
,
the
Plaintiff
being
disinherited
thereby
,
and
to
have
the
said
Marriage
Agreement
performed
,
is
the
Plaintiffs
Bill
.
The
Defendant
insists
,
That
the
said
Marriage
was
had
by
surprize
,
and
without
the
Consent
of
the
said
Thomas
the
Father
,
and
that
he
did
never
approve
of
it
,
but
when
told
of
it
was
in
great
Passion
,
and
said
his
Daughter
was
undone
,
and
then
made
his
Will
in
these
words
,
viz.
I
give
and
bequeath
unto
Elizabeth
my
only
Daughter
,
lately
married
against
my
consent
and
good
liking
,
to
Francis
Harmer
the
Sum
of
20
l.
over
and
above
the
Sum
of
500
l.
which
I
intend
to
pay
her
my self
in
full
for
her
Portion
;
and
the
said
Thomas
the
Father
being
afterwards
moved
to
alter
his
said
Will
,
declared
he
would
not
alter
the
same
,
and
that
he
would
not
be
a
President
to
disobedient
Children
,
and
the
Defendant
claims
the
said
Estate
real
and
personal
by
virtue
of
the
said
Will
.
This
Court
ordered
it
to
be
Tried
at
Law
,
Whether
Thomas
the
Father
did
agree
to
give
the
Plaintiff
Francis
Harmer
with
the
said
Elizabeth
,
any
other
or
further
Estate
real
or
personal
at
any
time
,
over
and
besides
the
said
500
l.
That
a
Verdict
passed
for
the
Plaintiff
,
And
after
a
Trial
at
Law
,
the
Marriage
Agreement
decreed
to
be
made
good
.
That
Thomas
the
Father
did
agree
to
give
the
Plaintiff
Francis
Harmer
,
with
the
said
Elizabeth
,
a
further
Estate
real
and
personal
besides
the
500
l.
This
Court
was
satisfied
there
was
such
a
Marriage
Agreement
,
and
that
the
same
ought
to
be
made
good
,
and
decreed
accordingly
.
Tregonwell
contra
Lawrence
,
25
Car.
2.
fo.
582.
THe
Bill
is
,
An
Injunction
to
restrain
Ploughing
or
Burn-beating
of
Pasture
.
to
restrain
the
Defendant
(
being
Tenant
for
life
)
from
ploughing
up
,
or
converting
into
Tillage
Pasture
Ground
,
to
the
damage
of
the
Plaintiffs
inheritance
.
The
Defendant
insisted
,
That
the
said
Land
was
very
full
of
Bushes
and
Fuz
,
and
that
the
Ploughing
and
Burn-beating
was
an
improvement
of
it
.
The
Plaintiff
insisted
,
That
the
Lands
are
Sheeps-strete
or
Sheeps-slight
,
the
surface
or
soyl
being
so
thin
,
that
if
the
same
be
ploughed
up
two
years
together
,
the
Lands
will
yield
no
profit
in
many
years
after
.
This
Court
on
reading
an
Order
20th
Febr.
25
Car.
2.
and
a
Certificate
of
Referrees
,
doth
decree
,
That
a
perpetual
Injunction
be
awarded
,
to
restrain
the
Defendant
from
Ploughing
up
or
Burn-beating
of
the
said
Lands
above
two
years
.
Sutton
&
Vxor
ejus
contra
Jewke
,
25
Car.
2.
fo.
178.
THat
1500
l.
Sum
left
for
a
Portion
.
But
if
she
marry
without
consent
,
then
a
part
to
be
to
another
.
was
to
be
put
out
at
Interest
for
the
use
and
benefit
of
the
Plaintiff
Ann
,
and
then
the
said
1500
l.
and
the
proceed
thereof
to
be
paid
her
at
her
Age
of
21
,
or
Marriage
;
but
if
the
Plaintiff
Ann
should
Marry
without
the
Consent
of
the
Defendant
Jewke
and
his
Wife
,
being
her
Father
and
Mother
,
or
one
of
them
,
or
the
Survivor
of
them
,
then
500
l.
part
of
the
said
1500
l.
to
be
paid
to
such
person
as
the
Defendant
Jewke
his
Wife
,
by
Writing
under
her
Hand
,
and
without
her
Husband
should
appoint
.
That
the
said
Defendant
Jewke
his
Wife
died
in
1668.
without
making
any
Appointment
,
so
that
the
Plaintiff
Ann
is
thereupon
become
intituled
to
the
whole
1500
l.
and
the
proceed
thereof
:
That
the
Plaintiff
Ann
married
in
1671.
and
this
Suit
is
to
be
relieved
for
the
1500
l.
and
Interest
.
The
Defendant
Jewke
insists
,
That
Mary
his
Wife
died
in
70.
but
before
her
death
in
1669.
by
Deed
Parol
directed
,
that
in
case
the
Plaintiff
Ann
married
without
the
Consent
of
her
the
said
Mary
,
or
the
Defendant
Jewke
her
Husband
,
then
500
l.
part
of
the
said
1500
l.
to
be
paid
to
her
and
the
Defendant
,
or
the
Survivor
of
them
,
and
that
the
said
Deed
was
made
upon
mature
deliberation
,
to
keep
the
said
Plaintiff
in
due
Obedience
,
and
that
the
Plaintiff
Sutton
having
in
a
clandestine
manner
married
with
the
Plaintiff
Ann
without
the
Defendant
Jewke
his
privity
or
consent
,
and
after
he
had
forbidden
his
Daughter
to
marry
with
him
on
the
forfeiture
of
his
Blessing
,
or
what
otherwise
she
might
expect
from
him
the
said
Defendant
Jewke
by
means
thereof
,
and
by
being
Administrator
to
his
late
Wife
,
became
intituled
to
500
l.
part
of
the
said
1500
l.
So
the
Chief
point
now
controverted
is
,
Whether
the
Plaintiff
Ann.
be
intituled
to
the
whole
1500
l.
or
whether
she
had
not
forfeited
500
l.
thereof
by
her
marriage
without
her
Fathers
consent
and
privity
,
and
contrary
to
his
direction
and
advice
.
His
Lordship
was
fully
satisfied
,
500
l.
Decreed
to
be
defalked
out
of
1500
l.
because
of
Marriage
against
Consent
.
That
the
Plaintiffs
said
Marriage
was
without
the
Defendants
privity
and
against
his
consent
,
and
that
therefore
the
Plaintiff
Ann
cannot
have
the
said
500
l.
But
decreed
the
Defendant
to
have
the
same
with
Interest
from
the
Plaintiffs
Marriage
.
Wall
contra
Buckley
,
26
Car.
2.
fo.
178.
THat
the
Plaintiffs
Father
,
Guardian
takes
Bond
in
his
own
Name
,
for
Arrears
of
Rent
,
by
this
the
Guardian
hath
made
it
his
own
Debt
as
his
Guardian
,
takes
Bond
for
100
l.
Arrears
of
Rent
due
from
the
Tenants
,
and
takes
it
in
his
own
Name
.
This
Court
is
of
Opinion
,
That
the
Plaintiffs
Father
hath
by
that
means
made
it
his
own
debt
.
Stickland
contra
Garnet
&
al
,
26
Car.
2.
fo.
340.
THe
Bill
is
for
a
Legacy
of
20
l.
Bill
for
a
Legacy
.
given
to
the
Plaintiffs
late
Husband
,
by
the
Will
of
George
Coker
Deceased
,
to
be
raised
and
paid
upon
the
Sale
of
Customary
Lands
,
mentioned
in
the
said
Will
;
which
said
Lands
,
are
by
the
Will
,
Devised
by
the
said
Coker
,
to
Jennet
his
Wife
for
her
Life
,
with
remainder
over
to
the
said
Defendants
in
Trust
,
that
after
the
Death
of
Jennet
the
said
Trustees
,
should
Sell
the
same
,
and
with
the
Money
thereby
Raised
,
to
pay
the
Legacies
in
the
Will
,
and
the
Trustees
to
be
Accountable
over
for
the
Surplus
to
other
Persons
;
and
the
said
John
Stickland
the
Legatee
Dying
before
the
said
Jennet
,
and
before
the
time
the
said
Lands
,
out
of
which
the
said
Legacy
was
to
be
Raised
,
were
appointed
to
be
Sold.
The
Defendants
Crave
Judgment
of
the
Court
,
Legatee
dyes
before
the
time
of
payment
of
the
Legacy
,
yet
payable
to
his
next
of
Kin.
whether
the
said
Legacy
of
20
l.
was
due
to
the
Plaintiff
,
or
Determined
by
the
Death
of
the
said
John
Stickland
.
This
Court
was
of
Opinion
,
that
the
20
l.
did
notwithstanding
the
Death
of
the
said
John
Stickland
,
continue
payable
to
the
Plaintiff
.
Brond
contra
Gipps
.
26
Car.
2.
fo.
763.
THis
Court
declared
,
Lands
Decreed
to
be
Sold
,
to
supply
the
Personal
Estate
.
that
the
Plaintiffs
Legacies
ought
to
be
paid
out
of
the
whole
Estate
of
the
Testator
,
viz.
out
of
the
Personal
Estate
,
so
far
as
that
will
extend
;
and
if
that
will
not
satisfie
the
same
,
then
the
Testators
Mannors
and
Lands
undivided
and
unsold
,
shall
in
the
next
place
come
in
Aid
of
the
Personal
Estate
for
Satisfaction
thereof
;
and
if
that
be
not
sufficient
,
then
the
whole
Mannors
,
Lands
and
Tenements
,
though
Sold
and
Divided
,
shall
notwithstanding
such
Sale
and
Division
,
come
in
supply
thereof
in
proportion
to
be
Refunded
,
and
paid
by
the
Person
or
Persons
,
in
whose
Hands
soever
the
same
shall
be
found
.
Bowyer
&
al'
contra
Bird
,
26
Car.
2.
fo.
769.
THe
Suit
is
to
have
an
Account
of
a
Legacy
of
500
l.
given
by
George
Dale
,
Father
of
the
Plaintiff
Ann
,
to
George
his
Son
also
Deceased
,
to
whom
the
Plaintiff
Ann
was
Administatrix
,
and
to
have
an
Account
of
the
Residuary
Estate
of
George
the
Father
,
after
his
Debts
and
Legacies
paid
,
the
Bill
Charging
,
that
George
the
Father
,
made
his
Will
in
Writing
,
and
thereof
his
Son
Thurston
Dale
,
and
one
Dakin
Executors
;
and
upon
Publishing
of
his
Will
,
Declared
Dakin
only
to
be
Executor
in
Trust
for
his
Children
,
and
to
take
no
Benefit
thereby
;
but
the
Estate
to
go
to
the
Children
,
and
Dyed
,
leaving
the
Plaintiff
Ann
,
and
three
Sons
,
viz.
the
said
Thurston
,
George
and
Robert
Dale
all
Deceased
,
and
that
Thurston
made
the
said
Dakins
his
Sole
Executor
,
and
the
Plaintiff
Ann
is
the
only
Surviving
Child
of
the
said
George
Dale
the
Father
,
and
claims
the
said
500
l.
and
the
Residuary
Estate
.
This
Court
(
it
appearing
by
the
said
Will
,
Estate
Decreed
to
the
Residuary
Legatee
,
and
not
to
the
Administrator
.
that
the
said
Thurston
,
who
was
Named
Executor
without
any
Trust
,
was
Residuary
Legatee
of
the
said
George
Dale
his
Father
,
who
had
given
by
the
said
Will
,
considerable
Legacies
to
every
one
of
his
Children
)
was
fully
satisfied
,
the
Plaintiffs
were
not
intitled
to
the
said
500
l.
nor
the
Residuary
Estate
;
but
that
the
said
Thurston
as
Residuary
Legatee
,
was
well
intituled
to
the
Residue
of
the
said
Estate
,
and
that
the
said
Trust
in
Dakins
ought
to
be
Construed
,
as
is
most
Consistent
with
the
Will
in
Writing
,
and
Dismist
the
Plaintiffs
Bill
.
Dom.
Leech
contra
Leech
,
26
Car.
2.
fo.
369.
THis
Court
declared
,
A
Deed
tho'
Cancelled
,
yet
good
,
and
the
Estate
shall
not
be
Divested
out
of
the
Trustees
.
tho'
the
Deed
appeared
Cancelled
,
yet
it
was
a
good
Deed
,
and
that
the
Cancelling
thereof
,
did
not
Devest
the
Estate
of
the
Trustees
therein
named
,
and
that
the
Trust
thereby
Created
,
ought
to
be
performed
.
Feake
contra
Brandsby
,
26
Car.
2.
fo.
74.
THat
William
Crowe
by
Will
,
Bill
for
a
Legacy
.
Devised
to
every
one
of
his
Servants
,
living
with
him
at
the
time
of
his
Death
,
10
l.
a
piece
,
and
that
the
Plaintiff
was
Servant
to
the
Testator
at
his
Death
,
so
the
Plaintiffs
Suit
is
for
the
10
l.
Legacy
.
The
Defendant
insists
,
that
the
Plaintiff
was
not
Servant
to
the
said
Crowe
at
his
Death
,
or
lived
with
him
as
a
Servant
;
but
the
Plaintiff
at
the
Testators
Death
,
and
long
before
and
after
,
was
the
Servant
of
Mary
Brandsby
,
the
Testators
Mother
.
This
Court
was
Satisfied
,
Who
shall
be
said
to
be
a
Servant
living
with
the
Testator
at
his
Decease
.
that
the
Plaintiff
was
a
Servant
to
the
Testator
,
and
intrusted
in
his
House-keeping
,
and
imployed
in
washing
his
Linnen
,
and
Tended
him
in
his
Sickness
;
and
therefore
Decreed
the
Defendant
the
Executor
,
to
pay
the
Plaintiff
her
10
l.
Legacy
.
Winchcombe
contra
Winchcomb
,
26
Car.
2.
fo.
654.
THat
in
Michaelmas
Term
2
Car.
1.
John
Carter
obtained
a
Judgment
against
John
Winchcomb
,
the
Defendants
Grandfather
,
of
400
l.
upon
two
several
Bonds
,
both
Dated
17
June
1623.
for
the
payment
of
a
100
l.
each
Bond
,
one
payable
the
1st
.
of
May
then
next
,
and
the
other
the
1st
.
of
May
1625.
That
the
said
Carter
,
made
Humfrey
Coles
his
Executor
,
and
Dyed
,
and
the
said
Humfrey
Coles
Dyed
,
and
his
Son
John
Coles
took
Administration
De
bonis
non
of
the
said
John
Carter
,
who
produced
the
Bond
payable
the
1st
.
of
May
,
1625.
whole
and
uncancelled
,
and
thereupon
insisted
to
be
a
Creditor
for
the
said
400
l.
on
the
said
Judgment
.
But
the
Defendant
Winchcomb
produced
one
of
the
said
Bonds
Cancelled
,
Judgment
upon
Bonds
of
long
standing
ordered
to
be
paid
.
and
insisted
,
that
the
same
was
satisfied
,
for
that
Humfrey
Coles
12
Car.
1.
had
an
Elegit
returned
,
and
Lands
delivered
by
the
Sheriff
,
which
being
near
40
years
since
the
same
,
would
not
have
slept
so
long
,
had
not
the
said
Debt
been
satisfied
,
one
Bond
being
Cancelled
.
And
the
said
Coles
insisted
,
that
the
said
Carter
was
kept
out
by
prior
Incumbrances
,
and
that
he
Exhibited
a
Bill
against
John
Winchcomb
the
Father
,
to
discover
the
same
,
who
by
Answer
,
acknowledged
the
said
Debt
.
This
Court
declared
,
that
the
said
Debt
of
400
l.
and
Costs
ought
to
be
paid
,
and
Ordered
the
same
accordingly
,
and
that
the
same
be
paid
by
Phillip
Innelt
Esq
;
who
purchased
the
premises
liable
thereto
.
Hodkin
contra
Blackman
&
al'
,
26
Car.
2.
fo.
773.
THe
Bill
is
to
discover
the
Estate
of
the
Intestate
,
Maurice
Blackman
,
which
came
to
the
Hands
of
Elizabeth
his
Relict
,
and
to
make
the
same
liable
to
the
satisfaction
of
a
Debt
of
300
l.
lent
to
the
said
Intestate
,
for
Security
whereof
,
the
said
Intestate
gave
a
Penal
Security
of
1000
l.
The
Defendant
Elizabeth
the
Administratrix
of
the
said
Intestate
,
insists
,
Agreement
to
Settle
100
l.
in
Money
,
Goods
,
or
Lands
upon
Marriage
for
500
l.
Portion
200
l.
of
the
said
500
l.
not
paid
.
she
hath
no
Assets
to
Satisfie
the
Plaintiffs
Demands
,
for
that
in
1665.
the
Intestate
Blackman
,
her
late
Husband
(
before
Marriage
with
her
)
and
her
Father
Doctor
Argoll
came
to
this
Agreement
,
viz.
that
her
said
Father
,
should
give
with
her
in
Marriage
to
the
said
Blackman
500
l.
and
in
consideration
thereof
,
and
of
such
Marriage
,
the
said
Blackman
should
enter
into
one
Obligation
to
the
said
Doctor
Argoll
,
of
3000
l.
Bond
of
3000
l.
to
perform
the
said
Agreement
,
and
Judgment
thereupon
pleaded
in
Bar
of
other
Debts
and
Goods
.
penalty
,
Conditioned
for
the
Setling
of
1500
l.
upon
the
said
Defendant
Elizabeth
,
and
her
Heirs
,
in
Monies
,
Lands
,
or
otherwise
within
one
Month
after
the
Marriage
;
that
accordingly
the
said
Blackman
in
August
1665.
entred
into
such
Bond
,
and
the
said
Marriage
was
had
,
and
the
said
Blackman
received
300
l.
of
the
Portion
,
and
the
remaining
200
l.
was
in
the
Hands
of
the
Defendants
Serjant
Brampston
;
that
the
said
Blackman
never
made
such
Provision
for
the
said
Defendant
Elizabeth
,
and
her
Children
,
as
by
the
Condition
of
the
said
Bond
he
was
to
do
,
and
the
Defendant
Mary
,
after
the
Death
of
Doctor
Argoll
her
Father
,
whose
Executrrix
she
is
,
finding
the
said
3000
l.
uncancelled
,
and
the
Condition
thereof
not
performed
,
did
in
August
before
the
time
of
putting
the
Defendant
Elizabeth's
Answer
,
commence
an
Action
of
Debt
against
the
said
Defendant
Elizabeth
,
as
Admininistratrrix
to
Blackman
,
her
late
Husband
,
and
recovered
a
Judgment
thereon
,
for
3000
l.
Debt
upon
the
Bond.
But
the
Plaintiff
insists
,
that
the
remaining
200
l.
in
Serjant
Brampstons
Hands
,
which
is
part
of
the
said
Elizabeth's
Portion
,
ought
to
be
applyed
to
Satisfie
the
Plaintiffs
Debt
,
as
far
as
the
same
will
go
,
and
what
the
same
falls
short
of
,
the
rest
of
the
Estate
ought
to
supply
.
This
Court
declared
,
they
saw
no
colour
of
Cause
,
to
give
the
said
Plaintiff
any
Relief
against
the
said
3000
l.
Bond
and
Judgment
thereon
had
,
other
than
against
the
Penalty
,
and
therefore
the
said
Defendant
ought
to
be
first
satisfied
her
said
1500
l.
out
of
the
Personal
Estate
of
the
said
Blackman
,
and
Decreed
the
same
accordingly
.
Mosely
contra
Mosely
,
27
Car.
2.
fo.
521.
THe
Defendant
claims
several
things
devised
to
her
in
specie
by
the
Will
of
Sir
Edward
Mosely
,
Clause
in
a
Will
that
if
any
Legatee
should
hinder
or
oppose
the
Execution
of
the
Will
,
then
such
person
should
lose
the
Legacy
bequeathed
.
A
Suit
for
the
Legacy
no
forfeiture
.
and
the
Plaintiff
would
bar
her
claim
and
right
for
the
whole
by
a
particular
Clause
in
the
Will
,
viz.
That
if
any
Legatee
should
hinder
or
oppose
the
Execution
of
his
Will
,
then
such
person
should
lose
the
Legacy
bequeathed
.
This
Court
as
to
the
Clause
of
Forfeiture
in
the
Will
,
which
the
Plaintiff
would
have
the
benefit
of
,
by
reason
of
the
Defendants
contesting
and
opposing
of
the
Execution
of
it
,
declared
its
Opinion
to
be
,
That
no
advantage
ought
to
be
taken
thereof
,
but
that
the
Defendant
ought
to
have
her
specifick
Legacies
,
bequeathed
by
the
Will
.
The
Court
also
declared
their
Opinion
,
of
the
Rent
demanded
by
the
Defendant
of
880
l.
that
notwithstanding
the
Defendants
opposition
of
the
Will
,
the
said
Rent
was
not
forfeited
or
suspended
,
nor
ought
in
equity
to
be
so
deemed
,
and
ordered
the
Defendants
demand
thereof
to
stand
good
,
and
be
allowed
as
a
good
demand
.
Plummer
contra
Stamford
,
27
Car.
2.
fo.
74.
THat
Edward
Stamford
entred
into
a
Recognizance
of
800
l.
An
Ancient
Recognizance
not
set
aside
to
let
in
a
Mortgage
.
to
John
Stamford
his
Brother
,
in
22
Car.
the
Plaintiff
having
a
Mortgage
on
Edward
Stamfords
Estate
,
and
in
respect
of
the
Antiquity
of
the
said
Recognizance
would
have
it
set
aside
,
presuming
the
mony
to
be
satisfied
,
that
the
Plaintiff
may
come
in
with
his
Mortgage
:
This
Court
would
not
relive
the
Plaintiff
against
the
Recognizance
.
Twiford
contra
Warcup
,
27
Car.
2.
fo.
749.
THe
Plaintiff
and
Defendant
entred
into
Articles
for
Purchase
of
the
Lands
in
question
,
Articles
.
Conveyance
.
by
which
Articles
the
Plaintiff
Covenanted
.
That
the
said
Lands
did
fully
and
compleatly
contain
the
quantities
of
Acres
in
a
particular
to
the
said
Articles
annexed
,
and
in
pursuance
of
the
said
Articles
and
particular
a
Conveyance
was
Executed
to
the
Defendant
.
Now
the
Defendant
insists
,
That
the
Plaintiff
hath
not
performed
the
Covenant
in
the
said
Articles
,
for
that
the
Lands
are
short
of
what
the
particular
mentions
them
to
be
;
and
insists
,
they
ought
to
be
made
good
by
the
Plaintiff
.
This
Court
on
reading
the
Articles
particular
and
Conveyance
,
declared
,
that
altho'
the
Covenant
in
the
Articles
were
,
that
the
Lands
did
full
and
compleatly
contain
the
quantities
in
the
Schedule
,
yet
in
that
Schedule
,
and
likewise
in
the
Conveyance
,
it
is
mentioned
to
contain
so
many
Acres
by
Estimation
,
and
if
there
were
4
or
5
Acres
more
,
the
Plaintiff
cannot
have
them
back
again
;
so
on
the
other
side
if
less
,
the
Defendant
must
take
it
according
to
the
Conveyance
,
and
that
the
Articles
being
only
a
security
for
a
Conveyance
,
and
the
Defendant
having
afterwards
taken
a
Conveyance
,
No
resorting
back
to
a
defect
in
Articles
after
a
Conveyance
thereupon
executed
.
the
Defendant
shall
not
resort
to
the
Articles
,
or
to
any
particular
,
or
to
any
Averment
or
Communication
after
the
Conveyances
Executed
,
which
ought
not
to
be
admitted
against
the
Deed
;
and
therefore
,
saw
no
Cause
to
make
any
allowance
for
defect
of
Acres
.
Newton
contra
Langham
,
27
Car.
2.
fo.
563.
THe
Plaintiff
having
an
Adventure
of
1700
l.
Adventure
in
the
East-India
Company
Mortgaged
redeemable
.
in
the
East-India
Company
,
Mortgaged
the
same
15
years
since
to
Sir
William
Vincent
,
who
died
and
made
the
Defendant
Executor
,
who
hath
possessed
the
said
1700
l.
Adventure
,
and
refuse
to
reassign
the
same
to
the
Plaintiff
,
the
mony
being
paid
for
which
it
was
a
Security
.
The
Defendant
insists
,
That
the
said
Adventure
is
not
redeemable
,
it
being
contingent
and
hazardous
and
cost
much
mony
to
insure
,
and
14
years
since
it
was
assigned
from
Hand
to
Hand
by
a
Decre
,
for
the
Assignment
to
the
Defendants
Testatrix
.
This
Court
declared
,
That
notwithstanding
the
hazard
and
contingency
of
the
said
Adventure
Mortgaged
,
and
the
length
of
time
since
the
Mortgage
,
the
Plaintiff
ought
to
be
admitted
,
to
a
Redemption
of
the
said
Adventure
.
Sowton
contra
Cutler
and
Clerke
,
27
Car.
2.
fo.
676.
THe
Bill
is
to
call
the
Defendant
Cutler
to
an
account
for
Wares
delivered
him
,
and
Monies
paid
to
and
for
him
amounting
to
3000
l.
Foreign
Attachment
.
and
to
be
releived
against
an
Attachment
in
the
Lord
Mayors
Court
by
the
Defendant
Clerke
,
whereby
he
Attached
2000
l.
in
the
Plaintiffs
hands
,
supposing
the
Plaintiff
to
be
so
much
indebted
to
the
Defendant
Cutler
,
and
that
Cutler
is
indebted
to
Clerke
in
a
a
greater
Sum
:
So
the
Plaintiff
Exhibited
an
English
Bill
in
the
Mayors
Court
for
Relief
therein
,
upon
which
Bill
the
Plaintiff
could
not
proceed
,
his
Witnesses
living
out
of
the
Jurisdictions
of
that
Court
;
so
the
Plaintiff
prays
a
Certiorari
,
to
remove
the
said
Proceedings
into
this
Court
.
The
Defendant
Clerke
hath
pleaded
,
Custom
of
London
.
That
by
the
Custom
of
the
City
of
London
,
any
Creditor
in
the
Name
of
any
other
person
may
make
an
Attachment
of
his
own
Mony
in
the
hands
of
his
Debtor
,
it
not
being
material
whether
such
Creditor
be
really
indebted
to
the
person
so
Attaching
.
And
the
said
Clerke
further
pleaded
,
That
the
said
English
Bill
was
to
the
same
effect
with
this
Bill
,
and
is
not
dismist
,
and
demurred
to
that
part
,
which
prays
a
Certiorari
to
remove
the
said
Proceedings
on
the
Attachment
and
English
Bill
,
for
that
it
is
not
practicable
to
remove
Records
out
of
a
Latin
Court
to
an
English
Court
,
which
cannot
hold
the
Plea
thereof
,
nor
for
the
Plaintiff
to
remove
his
own
Bill
by
Certiorari
.
This
Court
held
the
said
Plea
to
be
Insufficient
,
No
Certiorari
allowed
to
remove
Proceedings
by
English
Bill
,
in
the
Lord
Mayors
Court
,
into
Chancery
.
and
Over-ruled
the
same
;
and
the
Defendant
Clerke
to
answer
that
part
of
the
Bill
:
But
as
to
that
part
of
the
Bill
which
requires
the
Certiorari
,
held
the
Demurrer
to
be
good
,
and
ordered
a
Procedendo
to
the
Lord
Mayor
,
&c.
that
they
may
proceed
upon
the
same
Attachment
;
but
at
the
same
time
an
Injunction
to
Issue
,
to
stay
the
Defendants
proceedings
on
the
said
Attachment
in
question
.
Newport
contra
Kinaston
,
27
Car.
2.
fo.
517.
THe
Point
in
difference
arising
upon
the
Will
of
the
Lady
Katherine
Leveson
,
Legacy
.
the
Question
being
,
Whether
500
l.
mentioned
in
her
Will
be
thereby
devised
to
Mrs.
Katherine
Newport
,
or
Mrs.
Snead
,
who
were
both
her
Grand-daughters
,
it
being
thus
exprest
in
the
said
Will
,
viz.
To
my
Kinswoman
the
Lady
Diana
Newport
,
Wife
to
my
Lord
Newport
,
I
bequeath
my
Diamond
Pendants
which
cost
400
l.
and
to
her
Daughter
Mrs.
Katherine
Newport
my
God-daughter
,
a
Jewel
set
with
Diamonds
,
wishing
her
all
happiness
,
and
500
l.
to
my
God
daughter
Mrs.
Katherine
Snead
,
I
give
and
bequeath
a
Diamond
Bodkin
and
an
Emrod
Border
;
I
also
give
her
as
a
Token
of
my
Love
to
her self
,
a
power
to
alter
or
add
to
her
said
Will
,
and
by
a
Codicil
annexed
to
her
Will
,
and
made
part
thereof
:
And
after
a
Legacy
given
to
Mr.
Richard
Newport
of
400
l.
in
Gold
,
it
follows
thus
;
viz.
Also
I
give
unto
his
Sister
Mrs.
Katherine
Newport
my
God-daughter
500
l.
in
Silver
:
And
after
two
other
Legacies
intervening
it
is
thus
exprest
;
viz.
Also
I
give
unto
my
God
daughter
Katherine
Snead
100
l.
more
than
I
have
given
her
in
my
Will
;
by
which
said
Will
and
Codicil
the
said
Mrs.
Katherine
Newport
doth
conceive
,
that
there
is
two
500
l.
Upon
the
Construction
of
the
Words
of
a
Will
,
two
500
Pounds
Legacies
to
one
person
decreed
.
devised
unto
her
,
500
l.
by
her
Will
,
and
500
l.
in
Silver
by
the
Codicil
,
and
the
Executors
scruple
to
pay
the
same
,
for
that
the
said
Mrs.
Katherine
Snead
doth
claim
the
said
500
l.
given
by
the
Will
to
belong
unto
her
,
so
that
Mrs.
Katherine
Newport
seeks
to
have
the
two
500
ls.
by
the
Will
and
Codicil
.
But
Mrs.
Snead
insists
,
That
the
500
l.
given
by
the
Will
,
as
aforesaid
,
belongs
to
her
,
and
is
so
intended
,
and
not
to
Mrs.
Newport
,
by
the
most
Grammatical
and
reasonable
Construction
of
the
Will
and
Codicil
.
This
Court
upon
Reading
of
the
said
Will
,
was
fully
satisfied
both
by
Construction
of
the
said
Will
,
and
by
the
Intention
of
the
said
Lady
Leveson
,
that
both
the
500
l.
given
by
the
said
Will
,
and
the
500
l.
given
by
the
Codicil
,
were
given
and
do
belong
to
the
said
Mrs.
Newport
,
and
decreed
the
said
Executors
to
pay
her
the
1000
l.
accordingly
.
Wyrall
contra
Hall
,
27
Car.
2.
fo.
516.
THe
Testator
made
his
Will
,
A
good
Will
,
though
no
Executor
named
.
but
named
no
Executor
.
This
Court
declared
the
Will
to
be
a
good
Will.
Price
contra
Evans
,
27
Car.
2.
fo.
460.
THe
Plaintiffs
Title
is
under
an
Occupant
:
Title
under
an
Occupant
demurred
to
and
allowed
.
The
Defendant
demurred
.
This
Court
allowed
the
Demurrer
;
for
that
a
Title
under
an
Occupant
this
Court
will
not
Countenance
nor
give
any
Relief
thereof
.
Lambert
contra
Greene
,
27
Car.
2.
fo.
122.
THe
Defendant
Cicily
Greene
demandeth
an
Allowance
for
a
Third
part
of
a
Tenement
and
Ground
,
for
the
Remainder
of
a
Term
of
99
years
.
The
Case
is
thus
;
viz.
For
80
l.
the
same
were
Assigned
in
1655.
Lease
,
not
a
customary
Chattel
.
to
Henry
Hall
for
Remainder
of
a
Term
of
99
years
in
Trust
,
for
the
Defendants
Testator
William
Greene
,
and
the
Remainder
Expectant
,
upon
the
said
Term
conveyed
to
the
said
Testator
and
his
Heirs
;
which
Demand
is
submitted
to
the
Judgment
of
this
Court
.
This
Court
declared
,
That
the
said
Lease
was
not
a
Customary
Chattel
,
and
would
not
allow
the
Defendant's
Demands
.
Lucking
contra
Rushworth
,
28
Car.
2.
fo.
801.
THat
John
Pincheon
deceased
,
After
a
Statute
acknowledged
,
and
a
Mortgage
,
the
Conisors
Trustees
renew
the
Leases
in
their
own
Names
yet
Decreed
liable
to
the
Statute
.
borrowed
of
the
Plaintiffs
Father
4000
l.
for
which
he
mortgaged
Freehold
and
Copy-hold
Lands
,
and
also
for
farther
Security
entred
into
a
Statute
;
but
the
Terms
in
the
Leases
being
expired
,
the
Defendants
as
Trustees
have
renewed
the
said
Leases
with
the
Colledge
in
their
own
Names
,
in
Trust
for
the
Children
of
Pincheon
,
and
so
deny
the
same
are
liable
to
the
Plaintiffs
debt
.
This
Court
was
satisfied
,
the
Plaintiffs
debt
being
secured
by
Statute
,
as
well
as
by
Mortgage
ought
to
be
satisfied
out
of
all
the
Estate
of
the
said
Pincheon
in
Law
or
Equity
,
and
that
the
Renewals
of
the
said
Leases
in
the
Names
of
the
Trustees
,
ought
not
to
shelter
or
protect
the
Estate
against
the
Plaintiffs
debt
;
for
that
though
the
Plaintiffs
Mortgage
did
bind
but
a
particular
part
of
the
Estate
;
yet
the
Statute
did
bind
the
whole
Estate
,
and
the
Statute
binding
the
whole
Estate
in
its
own
nature
,
though
no
mention
were
made
of
subjecting
the
same
by
the
Will
to
the
said
debt
;
nevertheless
that
debt
ought
to
be
made
good
out
of
the
said
Pincheons
Estate
whatever
,
and
decreed
accordingly
.
Ramsden
contra
Farmer
&
al'
,
28
Car.
2.
fo.
516.
THat
Simon
Carill
was
seised
in
Fee
of
Lands
,
Lands
conveyed
to
Trustees
for
payment
of
Debt
.
conveyed
the
same
to
Trustees
to
sell
and
dispose
thereof
for
performance
of
his
Will
,
who
by
his
Will
devised
the
said
premisses
to
the
said
Trustees
and
their
Heirs
,
to
pay
his
debts
,
and
made
Elizabeth
his
Wife
his
Executrix
,
who
afterwards
married
Mr.
Barnes
;
and
the
said
Trustees
,
with
the
consent
of
the
said
Elizabeth
,
conveyed
the
premisses
to
Sir
John
Carill
and
others
in
Trust
in
the
said
Will
,
Trust
assigned
.
and
the
said
Barnes
after
died
,
and
the
said
Elizabeth
married
one
Machell
,
and
by
Deed
22
Car.
1.
the
said
Trustees
,
Carill
,
&c.
with
Elizabeth
,
conveyed
the
said
premisses
to
the
said
Machell
and
his
Heirs
;
and
in
1646.
the
said
Machell
with
the
like
consent
conveyed
to
Duncombe
,
Heath
and
Baldwin
,
and
their
Heirs
in
Trust
,
that
they
after
the
said
Simons
Debts
and
Legacies
paid
,
should
convey
to
the
said
Elizabeth
and
her
Heirs
,
or
to
such
as
she
by
Deed
or
Will
appoint
:
That
the
said
Elizabeth
raised
Monies
and
paid
the
said
Simons
Debts
and
Legacies
,
and
performed
the
said
Will
;
and
after
the
said
Machell's
death
,
Elizabeth
by
Will
1650.
devised
all
the
said
premisses
to
her
Son
John
Carill
for
life
,
and
after
his
decease
to
the
first
Son
of
the
Body
of
the
said
Son
lawfully
begotten
or
to
be
begotten
,
and
to
his
Heirs
.
And
if
her
said
Son
should
not
have
a
Son
,
but
one
or
more
Daughters
,
then
she
devised
the
premisses
to
the
first
Daughter
of
the
Body
of
her
said
Son
,
and
to
her
Heirs
:
That
the
said
John
Carill
in
the
said
Elizabeths
life
time
had
a
Son
,
whose
Name
was
John
,
who
died
in
her
life
time
,
and
soon
after
Elizabeth
died
,
and
her
said
Son
John
Carill
survived
her
,
and
never
had
any
other
Son
after
Elizabeth
Machells
death
;
and
the
said
John
Carill
died
,
and
left
the
Plaintiff
Lettice
his
eldest
Daughter
,
and
the
Defendant
Elizabeth
his
second
Daughter
,
and
the
Defendant
Margaret
his
third
Daughter
;
and
the
said
Lettice
the
Plaintiff
claims
the
premisses
as
eldest
Daughter
.
But
the
Defendants
,
Elizabeth
and
Margaret
,
insist
.
They
ought
to
have
their
equal
parts
with
the
Plaintiff
Lettice
in
the
premisses
,
and
that
the
said
Simon
had
not
power
to
make
such
Settlement
or
Will
,
but
say
,
he
was
only
seised
for
life
of
the
premisses
,
and
that
Elizabeth
Machell
joyned
in
the
Settlement
at
her
Son
John
Carill's
Marriage
;
and
if
there
were
such
a
Will
of
the
said
Elizabeth
Machell
,
yet
the
said
John
Carill
had
a
Son
named
John
Carill
,
Construction
of
the
words
of
a
Will
.
who
was
Born
after
the
death
of
the
said
Elizabeth
Machell
,
and
lived
some
time
after
her
death
without
Issue
,
and
by
the
words
of
the
Will
,
the
Trust
is
determined
.
This
Court
not
being
satisfied
,
as
to
the
Birth
and
death
of
the
said
John
Carill
,
directed
a
Tryal
on
this
Issue
,
whether
John
Carill
,
Grandson
of
Elizabeth
Machell
,
dyed
during
the
Life
of
the
said
Elizabeth
Machell
,
or
after
her
decease
.
That
upon
a
Tryal
on
the
said
Issue
,
it
was
found
,
that
the
said
John
Carill
the
Grandson
,
outlived
the
said
Elizabeth
,
Trusts
determined
.
and
therefore
the
Defendants
insist
,
that
the
Trust
limited
by
the
Will
of
the
said
Elizabeth
Machell
,
is
fully
determined
.
This
Court
declared
,
they
saw
no
cause
to
relieve
the
Plaintiffs
Bill
in
this
matter
,
and
so
dismist
the
Bill
accordingly
.
Salter
contra
Shadling
,
28
Car.
2.
fo.
66.
THat
Bryan
late
Lord
Bishop
of
Winton
being
possest
of
the
Mannor
of
Pottern
by
Lease
from
the
Bishop
of
Salisbury
,
Will
.
(
made
to
Sir
Richard
Chaworth
,
in
Trust
for
the
said
late
Bishop
of
Winton
)
by
his
Will
Devised
200
l.
per
Annum
should
be
paid
out
of
the
profits
of
the
said
Lease
,
to
William
Salter
,
the
Plaintiffs
late
Husband
his
Nephew
,
during
his
Life
;
and
that
the
Estate
in
Law
in
the
said
Lease
,
should
continue
in
Sir
Richard
Chaworth
,
during
his
Life
,
and
the
Surplusage
of
the
profits
,
he
Devised
to
the
said
William
Salter
,
to
whom
he
also
Devised
the
Lease
after
Sir
Richard
Chaworths
death
,
and
made
Sir
Richard
Chaworth
and
others
Executors
,
who
consented
to
the
said
Devise
,
and
about
16
Car.
2.
William
Salter
made
his
Will
,
and
as
to
his
Interest
in
Pottern
,
he
devised
the
same
to
Trustees
,
that
they
should
permit
the
Plaintiff
to
receive
the
profits
during
her
Widdow-hood
,
on
Condition
she
renewed
the
Term
to
21
years
,
Construction
upon
the
words
of
a
Will
.
once
in
seven
years
,
and
if
the
Plaintiff
should
Marry
or
dye
,
then
he
declared
the
profits
of
the
Premises
,
to
go
to
his
two
Daughters
,
Ann
and
Susanna
,
and
the
Survivor
of
them
and
their
Heirs
,
and
after
their
Deaths
,
without
Heirs
of
their
Bodies
,
then
to
his
right
Heirs
,
and
Devised
all
the
rest
of
his
Personal
Estate
should
be
to
his
Executors
and
Trustees
,
for
the
benefit
of
his
said
Daughters
,
and
made
the
Plaintiff
and
the
said
Trustees
Executors
.
That
the
said
two
Daughters
are
since
dead
intestate
,
and
the
Plaintiff
being
their
Administrator
,
is
Intituled
to
the
whole
Term
and
Trust
of
the
said
Lease
of
Pottern
,
as
Administrator
to
her
said
two
Daughters
,
according
to
the
said
William
Salters
Will
,
and
the
true
Exposition
thereof
,
the
same
being
devised
in
manner
as
aforesaid
.
The
defendant
Charles
Cleaver
the
Infant
,
being
Eldest
Son
and
Heir
of
Dame
Briana
Cleaver
deceased
,
who
was
one
of
the
Sisters
and
Coheirs
of
the
said
William
Salter
,
and
the
Defendant
Stradlings
Wife
being
his
Sister
and
Coheir
,
insist
,
that
according
to
William
Salters
Will
,
and
for
that
no
present
interest
in
Pottern
was
Devised
to
his
two
Daughters
,
but
only
Contingent
possibility
of
Interest
,
in
case
the
said
Plaintiff
should
Marry
or
dye
,
neither
of
which
having
since
hapned
,
and
the
said
Daughters
being
since
dead
,
the
Interest
and
Term
in
Pottern
ought
to
come
to
them
,
as
Heirs
to
the
said
William
Salter
,
and
not
to
the
Plaintiff
,
as
Administratrix
to
her
two
Daughters
,
the
rather
,
for
that
they
consented
to
a
decree
for
Sale
of
Lands
,
which
would
have
come
to
them
as
Heirs
at
Law
,
to
preserve
Pottern
from
Sale
,
for
the
payment
of
William
Salters
debts
.
This
Court
declared
,
that
according
to
William
Salters
Will
,
and
the
disposition
therein
made
of
Pottern
,
the
whole
Interest
of
the
said
Term
and
Trust
therein
,
was
well
passed
in
the
Plaintiff
,
and
that
the
Heirs
of
Salter
,
can
have
nothing
to
do
therewith
,
nor
have
any
Interest
therein
,
and
Decreed
the
Plaintiff
to
enjoy
the
same
against
the
Defendants
.
Still
contra
Lynn
&
al'
,
28
Car.
2.
fo.
195.
Bill
is
to
be
relieved
for
123.
Acres
of
Land
.
THat
Philip
Jacobson
Deceased
,
Settlement
.
being
possest
of
a
Capital
Messuage
or
Tenement
,
and
Lands
by
Lease
from
the
Crown
,
Dat.
13
Car.
1.
for
the
Term
of
60
years
.
Did
by
Deed
in
1639.
in
consideration
of
a
Marriage
with
Elizabeth
his
then
Wife
;
and
for
that
she
had
parted
with
her
Interest
in
Goods
,
Consideration
.
&c.
which
by
Agreement
,
she
had
the
Disposition
of
for
her
own
use
,
and
other
Consideration
herein
mentioned
,
did
Assign
over
the
said
Premisses
and
all
his
Term
therein
,
Lease
Assigned
in
Trust
for
a
Joynture
,
and
after
for
Children
.
to
Rumbald
,
Jacobson
,
and
Abrah.
Beard
on
Trust
,
that
the
said
Eliz.
should
have
the
profits
during
Life
,
and
after
to
James
,
Paul
,
Jane
and
Mary
,
her
Children
,
or
such
of
them
as
the
said
Elizabeth
should
appoint
by
her
Will
,
and
for
want
of
such
Appointment
to
the
said
James
,
Paul
,
Jane
and
Mary
,
or
so
many
of
them
as
should
be
living
at
her
decease
,
share
and
share
alike
;
and
after
Elizabeth
dyed
,
Paul
the
Son
being
dead
in
her
Lifetime
.
Afterwards
by
deed
in
1643.
in
consideration
of
a
Marriage
between
the
said
Philip
Jacobson
,
and
Frances
Earnely
,
and
for
a
Joynture
for
the
said
Frances
,
and
for
Provision
for
such
Children
,
as
he
should
have
by
her
,
the
said
Philip
Jacobson
,
and
James
his
Son
,
Assigned
over
the
said
Premisses
,
for
the
remainder
of
the
said
Term
of
60
years
,
and
all
his
Goods
and
Houshold
stuff
unto
William
,
Daniel
,
and
Alexander
Staples
,
their
Executors
,
&c.
on
Trust
,
Trust
.
to
permit
the
said
Frances
and
Philip
,
and
such
Children
as
they
should
have
between
them
,
to
receive
the
profits
during
the
said
Term
and
after
the
decease
of
him
and
his
said
Wife
without
Issue
,
then
on
Trust
,
as
to
part
to
suffer
the
Executors
of
the
said
Frances
,
and
as
to
the
residue
,
the
said
James
Jacobson
his
Executors
,
&c.
to
receive
the
profits
during
the
Term
afterwards
by
deed
in
1646.
Reciting
all
Assignments
and
Indentures
aforesaid
,
he
the
said
Philip
Jacobson
Assigned
over
the
said
Premisses
,
and
his
Term
therein
,
to
Alexander
Staples
,
and
Jeffery
Daniel
their
Executors
,
&c.
on
Trust
,
as
to
the
said
Frances
Jacobson
,
for
the
Premisses
limited
to
her
by
her
first
Joynture
;
and
as
to
several
other
parcels
of
Land
named
,
as
in
the
said
Deed
is
recited
,
which
said
last
premisses
,
contain
132
Acres
,
which
are
in
Trust
for
the
said
James
Jacobson
,
from
the
death
of
his
Father
,
during
the
residue
of
the
Term
;
and
in
case
the
said
James
should
remain
unmarryed
,
or
being
Marryed
,
and
should
dye
without
Issue
,
and
his
Wife
being
a
Widow
,
then
the
Rents
and
Profits
thereof
to
remain
,
and
be
to
his
younger
Brother
and
Sister
,
Lelease
of
Trusts
.
and
afterwards
James
and
Thomas
Earneley
,
Son
in
Law
of
the
said
Philip
,
having
Marryed
Jane
,
one
of
the
Daughters
of
the
said
Philip
,
did
22
Car.
1.
Release
to
Staples
and
Daniel
,
and
to
the
said
Phillip
,
and
Joanna
Jacobson
,
vid.
Executrix
of
Rombold
Jacobson
,
who
Survived
Beard
,
all
and
all
manner
of
Trusts
and
demands
whatsoever
,
and
Suits
in
Law
or
Equity
,
which
they
or
either
of
them
,
their
Executors
,
&c.
had
from
the
beginning
of
the
World
unto
the
date
thereof
,
in
all
the
Lands
and
Tenements
,
with
the
Appurtenances
then
,
or
theretofore
in
the
tenure
of
Philip
Jacobson
aforesaid
,
in
the
County
of
Wilts
,
and
by
another
Release
in
Jan.
1647.
the
said
James
and
Thomas
Earneley
,
Released
unto
the
said
Philip
Jacobson
,
and
Joanna
Jacobson
,
all
manner
of
Trusts
and
demands
whatsoever
,
in
all
Lands
in
the
County
of
Wilts
,
as
in
the
former
Release
,
and
afterwards
by
deed
in
1653.
reciting
,
that
there
was
a
Marriage
then
shortly
to
be
had
,
between
the
said
James
Jacobson
,
Son
and
Heir
of
Philip
Jacobson
,
and
one
Margaret
Still
,
the
said
Philip
did
Assign
over
unto
John
Still
,
and
Nicholas
Still
,
their
Executor
,
&c.
the
said
123
Acres
,
for
the
Residue
of
the
Term
,
to
the
use
of
James
and
Margaret
,
for
their
Lives
;
and
after
their
Deceases
,
to
the
right
Heirs
of
the
said
James
,
begotten
of
Margaret
,
and
if
Margaret
should
Survive
James
,
and
have
no
Child
by
him
,
and
he
dye
before
the
end
of
the
Term
,
then
she
should
have
power
to
sell
51
Acres
of
the
premisses
,
and
the
Residue
to
the
Executors
of
Philip
;
and
if
Margaret
dye
in
the
life-time
of
James
not
having
any
Issue
of
her
Body
by
him
begotten
then
living
,
then
to
the
use
of
the
said
James
Jacobson
,
his
Executors
,
Administrators
and
Assigns
,
for
the
residue
of
the
Term
,
which
Marriage
took
effect
,
and
Margaret
dyed
without
Issue
in
the
Lifetime
of
James
,
after
whose
Decease
,
the
said
James
being
in
possession
by
Deed
,
in
1661.
for
400
l.
Mortgaged
the
123
Acres
to
Elizabeth
Brinley
,
and
yet
enjoyed
the
123
Acres
,
till
he
dyed
,
and
the
said
Elizabeth
Assigned
over
the
said
Mortgage
,
which
now
by
mean
Assignments
,
is
come
to
the
Plaintiff
,
and
James
is
dead
without
Issue
or
Brother
,
and
the
Defendants
Zenobia
,
Frances
and
Rachell
,
do
him
Survive
.
This
Court
was
fully
satisfied
,
that
the
Deed
in
1653.
Voluntary
conveyance
.
by
which
the
said
James
derived
his
Title
,
and
afterwards
made
the
said
Mortgage
,
under
which
the
Plaintiff
claims
,
Remainder
after
a
Limitation
of
a
Term
,
to
an
Issue
Male
void
in
Law
.
was
a
good
Conveyance
,
and
well
executed
in
James
,
and
that
the
Conveyance
in
1646.
was
a
voluntary
Conveyance
,
and
the
Estate
thereby
claimed
by
the
Defendants
created
,
being
an
Estate
in
remainder
,
after
a
Limitation
of
a
Term
for
years
,
to
an
issue
in
Tail
,
was
void
in
Law
,
and
Decreed
the
Plaintiff
to
the
possession
of
the
123
Acres
,
or
the
Mony
due
on
the
Mortgage
,
and
to
enjoy
against
all
the
Defendants
,
and
Decreed
that
the
Plaintiff
and
Defendant
Hopkins
,
who
is
Administrator
of
the
Mortgager
James
Jacobson
,
to
come
to
an
account
.
Oliver
contra
Leman
&
al'
,
29
Car
:
2.
fo.
102.
A
Trial
at
Law
,
is
directed
to
the
Plaintiff
to
try
his
Right
to
a
Reversion
of
Lands
,
after
the
Death
of
the
Defendant
Wainwright
,
so
the
Plaintiffs
desire
what
time
they
think
fit
to
try
the
same
;
A
Tryal
at
Law
directed
to
be
within
a
precise
time
.
but
the
Defendant
insists
,
that
the
Plaintiff
ought
to
be
confined
to
a
convenient
time
,
which
was
prayed
might
be
the
Rule
in
this
Case
,
and
that
the
Defendant
might
not
be
kept
in
suspence
,
and
to
wait
on
the
Plaintiffs
Convenience
,
when
he
shall
think
fit
to
try
the
same
.
This
Court
ordered
it
to
be
Tryed
in
Easter
Term
next
,
or
the
Issue
be
taken
,
pro
confesso
.
Stawell
contra
Austin
,
29
Car.
2.
fo.
579.
THat
George
Stawell
Father
of
Vrsula
and
Elizabeth
Stawell
being
seized
in
Fee
of
Lands
,
Construction
of
a
Will
.
by
Deed
and
Recovery
thereon
,
setled
all
the
said
Lands
on
the
Defendant
Sir
John
and
Robert
Austin
and
their
Heirs
,
to
the
said
George
for
Life
;
remainder
for
such
Estates
and
Charges
,
as
he
by
Will
or
other
writing
should
appoint
,
remainder
to
the
Heirs
Males
of
his
Body
,
with
remainders
over
,
and
by
Will
persueant
to
the
power
reserved
by
the
said
Deed
,
devised
the
premisses
setled
by
the
said
Deed
to
the
said
Defendant
for
99
years
after
his
death
,
upon
Trust
,
in
Case
he
left
no
Son
,
or
such
as
should
die
before
21
without
Heirs
,
Males
,
and
should
leave
one
or
more
Daughters
,
for
raising
of
12000
l.
if
but
one
Daughter
,
for
such
Daughter
,
and
if
two
or
more
Daughters
,
then
20000
l.
to
be
raised
for
their
portions
,
to
be
equally
divided
between
them
,
and
to
be
due
and
payable
at
their
respective
Ages
of
21
years
,
or
days
of
Marriage
,
and
the
said
George
died
leaving
no
Son
,
and
having
only
three
Daughters
,
viz.
Vrsula
,
Elizabeth
,
and
one
Ann
Stawell
,
who
died
since
her
Father
,
and
that
the
said
Testator
George
his
Relict
married
the
Defendant
Seymore
,
and
she
on
the
death
of
her
Daughter
Ann
,
took
the
Administration
of
her
Estate
,
and
also
soon
after
died
,
leaving
the
portion
of
the
said
Ann
in
the
said
20000
l.
Un
administrated
,
and
Administration
of
the
said
Anns
Estate
was
granted
to
the
said
Vrsula
,
and
Elizabeth
her
Sister
,
who
are
intituled
to
the
said
Anns
personal
Estate
,
and
that
the
said
20000
l.
ought
to
be
raised
by
the
said
Trustees
,
out
of
the
Lands
setled
as
aforesaid
;
but
the
Defendants
the
Trustees
insist
,
That
by
the
words
of
the
Will
it
is
dubious
,
whether
the
whole
20000
l.
ought
to
be
raised
,
or
any
more
than
12000
l.
When
Land
to
be
charged
with
portion
,
or
not
,
upon
the
words
of
the
Will
.
the
said
Ann
being
dead
unmarried
,
and
before
21.
And
the
Defendant
the
Heir
insisted
,
That
as
the
Case
is
,
the
portions
of
the
said
Ann
,
ought
not
to
be
charged
on
the
said
Lands
,
so
the
only
Question
before
the
Court
being
,
whether
the
Trustees
shall
raise
12000
l.
or
20000
l.
for
the
said
Plaintiffs
Vrsula
and
Elizabeth
.
It
appearing
plainly
to
this
Court
,
that
by
the
words
of
the
said
Will
,
that
if
the
said
Testator
George
had
two
Daughters
,
or
more
Daughter
,
then
20000
l.
should
be
raised
.
This
Court
is
of
Opinion
,
and
declared
,
that
the
Lands
ought
to
be
charged
with
the
20000
l.
and
the
payment
thereof
to
the
Plaintiffs
Vrsula
and
Elizabeth
.
Lawrence
contra
Berny
,
29
Car.
2.
fo.
156.
THis
Case
is
on
a
Bill
of
Review
:
Bill
of
Review
.
This
Court
declared
,
they
would
not
make
Error
by
construction
;
and
where
a
Decree
is
capable
of
being
executed
,
by
the
ordinary
Process
and
Forms
of
the
Court
,
and
where
things
come
to
be
in
such
a
State
and
Condition
after
a
Decree
made
,
that
it
requires
an
original
Bill
,
and
a
second
Decree
upon
that
,
before
the
first
Decree
can
be
executed
;
In
the
first
Case
,
whatever
the
inniqity
of
the
first
Decree
may
be
;
yet
,
till
it
be
reversed
,
the
Court
is
bound
to
assist
it
with
the
utmost
process
the
course
of
the
Court
will
bear
,
for
in
all
this
,
the
Conscience
of
the
present
Judge
is
not
concerned
,
because
it
is
not
his
Act
,
but
rather
his
sufferance
,
that
the
Act
of
his
Predecessor
should
have
its
due
effect
by
ordinary
Forms
:
But
where
the
common
Process
of
the
Court
will
not
serve
,
but
a
new
Bill
and
a
new
Decree
is
become
nenessary
to
have
the
Execution
of
a
former
Decree
,
is
in
its
self
unjust
;
there
this
Court
desired
to
be
excused
,
in
making
in
its
own
Act
,
to
build
upon
such
ill
Foundations
,
and
charging
his
own
Conscience
with
promoting
an
apparent
injustice
;
and
to
this
condition
hath
the
Plaintiff
Lawrence
brought
himself
,
for
he
forbore
to
apply
himself
to
this
Court
to
support
him
,
as
one
that
claimed
under
the
Decree
in
1650
,
or
to
pray
an
Injunction
,
to
stop
Berneys
proceeding
at
Law
,
but
stay'd
till
Berney
had
recovered
the
Land
by
a
Tryal
at
Bar
,
Where
no
ordinary
Process
upon
the
first
Decree
will
serve
,
but
there
must
be
a
new
Bill
,
to
pray
Execution
of
the
first
Decree
by
a
second
Decree
.
and
been
put
into
Possession
by
the
Sheriff
;
and
now
no
ordinary
Process
upon
the
first
Decree
will
serve
,
but
he
is
drawn
to
a
new
Bill
,
to
pray
Execution
of
the
first
Decree
,
by
a
second
Deree
,
and
this
obligeth
the
Court
to
examin
the
grounds
of
the
first
Decree
,
before
they
make
the
same
Decree
again
.
And
this
Court
was
not
of
this
Opinion
alone
,
but
it
was
also
the
Opinion
of
others
that
were
before
him
,
who
had
made
several
Presidents
in
like
Cases
,
and
would
not
enter
further
into
Arguments
of
the
Errors
.
Lawrences
Bill
was
an
original
Bill
,
to
Execute
two
Decrees
in
1650
,
and
1651
,
and
the
Defendant
Berney
now
also
Plaintiff
,
it
being
cross
Causes
brought
his
Bill
of
Review
,
to
Reverse
the
said
Decree
,
&c.
as
Unjust
and
Erroncous
,
That
the
first
Decree
by
the
Lord
Coventry
,
in
30
Car.
1.
decreed
a
Sale
of
the
premisses
for
a
performance
of
the
Trust
,
that
in
1650
a
Decree
was
made
to
frustrate
the
Lord
Coventry's
Decree
.
Priske
contra
Palmer
,
29
Car.
2.
fo.
323.
THis
Court
was
satisfied
the
Plaintiff
had
a
quiet
enjoyment
for
a
long
time
,
and
declared
,
Want
of
a
surrender
Aided
.
That
notwithstanding
a
Surrender
is
wanting
,
yet
the
Plaintiffs
Title
ought
to
be
supplied
in
Equity
,
and
decreed
the
Plaintiff
to
enjoy
the
premisses
,
and
the
perpetual
Injunction
to
stay
all
proceedings
at
Law
.
Woolstenholm
contra
Swetnam
,
29
Car.
2.
fo.
146.
THat
Thomas
Swetnam
deceased
,
Settlement
.
being
possessed
of
a
Personal
Estate
,
and
making
provision
for
his
Grand-Children
,
being
the
Children
of
Thomas
his
eldest
Son
,
being
five
in
number
,
whereof
Peter
Swetnam
was
one
,
did
by
Deed
authorize
the
Defendant
William
Swetnam
,
who
was
his
second
Son
,
and
the
Defendant
Thomas
Swetnam
,
who
was
his
Grandchild
,
to
receive
32
l.
Rent
,
which
was
an
Arrear
of
16
l.
per
Annum
Annuity
of
Foster's
Farm
,
in
Trust
,
to
be
divided
amongst
his
said
five
Grandchildren
at
the
Age
of
21
;
and
the
said
Thomas
the
Grandfather
by
some
other
Deed
charged
his
whole
Lands
on
a
Settlement
thereof
on
the
Defendant
Thomas
,
with
the
payment
of
1000
l.
equally
amongst
his
said
five
Grandchildren
,
whereof
the
said
Peter
was
one
,
and
in
further
kindness
to
the
said
Peter
,
in
1657.
by
Will
gave
him
100
l.
to
be
paid
out
of
the
Personal
Estate
,
and
made
the
Defendant
William
his
Executor
;
and
the
said
Peters
Father
,
to
increase
his
Fortune
,
put
out
several
Sums
of
Mony
in
the
said
William's
Name
,
and
deposited
other
Mony
in
the
said
Defendants
hands
,
for
the
said
Peters
use
,
and
by
his
Will
surther
gave
to
Peter
30
l.
and
Peter
married
the
Plaintiff
Martha
,
and
by
his
Will
devised
all
his
Estate
to
the
said
Martha
,
whereby
the
Plaintiff
is
intituled
to
the
said
Devisee
,
and
to
the
said
Peters
shate
in
the
1000
l.
so
to
be
relieved
for
the
Sum
,
is
the
Bill
.
The
Defendant
William
insists
,
That
Thomas
,
the
Father
of
Peter
,
died
possessed
of
a
Personal
Estate
of
266
l.
and
the
Defendant
as
his
Executor
possest
it
,
1000
l.
to
be
raised
and
divided
amongst
five
Children
,
one
dies
before
distribution
the
Survivors
shall
have
his
share
,
and
not
the
Devisee
of
him
that
is
dead
.
and
paid
his
debts
,
being
100
l.
and
says
,
that
the
1000
l.
was
given
to
be
divided
as
afore
said
,
and
as
the
Defendant
William
should
think
fit
,
and
that
Peter
dying
before
any
distribution
was
made
to
him
thereof
,
the
Defendant
William
ought
not
to
distribute
the
same
amongst
the
other
four
,
and
no
part
of
it
ought
to
come
to
the
Plaintiff
.
This
Court
declared
,
That
no
part
of
the
1000
l.
doth
belong
to
the
Plaintiff
in
Right
of
the
said
Peter
,
or
otherwise
,
and
dismist
the
Bill
.
Nance
contra
Coke
,
29
Car.
2.
fo.
64.
THe
Plaintiff
seeks
Redemption
of
a
Mortgage
made
the
17th
of
Jac.
1.
Release
pleaded
against
the
Redemption
of
a
Mortgage
,
and
allowed
.
the
Defendant
pleaded
a
Release
of
the
Mortgagors
Interest
in
Anno
1620.
This
Court
after
so
long
time
and
such
Release
,
could
not
admit
the
Plaintiff
to
Redeem
,
though
the
premisses
were
Mortgaged
for
376
l.
and
worth
now
to
be
sold
1500
l.
Burgrave
contra
Whitwick
&
al'
,
29
Car.
2.
fo.
173.
THat
George
Whitwick
deceased
,
Will
.
having
Issue
George
his
only
Son
,
and
Elizabeth
,
and
Martha
the
Wife
of
the
Defendant
Curtis
,
by
Will
bequeathed
to
the
said
Elizabeth
600
l.
to
be
paid
unto
her
as
therein
after
is
expressed
,
and
to
the
said
Martha
600
l.
in
like
manner
,
and
gave
the
residue
of
his
Personal
Estate
to
the
said
George
his
Son
,
to
be
employed
as
should
be
afterwards
expressed
in
his
Will
,
and
also
gave
to
his
said
Son
and
his
Heirs
all
Lands
whatsoever
,
and
Willed
,
That
if
either
of
his
said
Children
should
dye
in
their
Minority
,
that
the
surviving
should
be
Heirs
to
the
deceased
in
equal
portions
;
but
if
all
should
die
without
Issue
,
then
he
gave
his
Lands
to
George
the
Son
of
Humfrey
Whitwick
,
with
Remainders
over
,
and
ordered
the
said
Portions
in
convenient
time
to
be
laid
out
in
Lands
for
his
said
Children
,
and
till
Lands
purchased
the
Executors
to
retain
the
Mony
so
long
as
the
Overseers
should
see
good
,
at
5
l.
per
Cent.
and
made
the
Defendant
Humfrey
Whitwick
Executor
.
That
George
the
Son
died
Intestate
under
Age
unmarried
,
that
no
Land
hath
been
purchased
by
the
Executor
:
That
Martha
attained
21.
and
received
her
Portion
,
and
also
the
Moiety
of
the
residue
of
the
Personal
Estate
bequeathed
to
George
the
Son
,
but
refuses
to
pay
Elizabeth
her
600
l.
and
Moiety
of
the
said
residue
of
the
Personal
Estate
,
she
being
yet
a
Minor
under
21.
yet
she
is
married
to
the
other
Plaintiff
Burgrave
,
who
can
give
a
Discharge
.
The
Defendant
insiststs
,
According
to
the
meaning
of
the
Will
he
ought
not
to
pay
Elizabeth
till
the
Age
of
21
years
,
for
in
case
she
die
before
,
the
said
Martha
ought
to
have
the
other
Moiety
of
the
residue
of
the
Personal
Estate
,
and
he
is
advised
there
is
a
possibility
of
Survivorship
of
the
Plaintiff
Elizabeths
Portion
,
and
Moiety
of
the
residuary
of
the
Personal
Estate
,
and
that
if
he
should
pay
it
to
the
said
Elizabeth
,
and
she
should
die
before
21
,
the
Defendant
Martha
may
compel
him
to
pay
it
again
.
But
the
Plaintiff
insists
,
That
the
Moiety
of
the
residuary
Personal
Estate
devised
to
the
said
George
not
being
laid
out
in
Lands
,
falls
to
the
Plaintiff
within
the
words
of
that
Clause
in
the
Will
,
that
gives
the
residue
by
equal
portions
to
the
surviving
,
and
so
no
further
Survivorship
intended
.
This
Court
was
of
Opinion
,
Residuary
part
of
the
Personal
Estate
not
subject
to
any
contingency
of
Survivorship
,
but
the
Interest
presently
vested
.
and
declared
the
residuary
part
of
the
Personal
Estate
is
not
subject
to
any
contingency
of
Survivorship
,
but
that
the
Interest
of
that
presently
vested
in
the
Plaintiff
,
upon
the
death
of
the
said
George
the
Son
,
and
ordered
the
Defendant
,
the
Executor
,
to
pay
one
Moiety
of
the
residuary
Personal
Estate
;
and
in
case
Elizabeth
die
before
21
,
then
the
600
l.
to
be
paid
to
Martha
,
which
in
the
mean
time
is
to
be
kept
in
the
Defendants
hands
.
Morgan
contra
Scudamore
,
29
Car.
2.
fo.
658.
THe
Plaintiffs
being
Customary
Tenants
of
the
Mannor
,
Renewing
Copies
upon
reasonable
Fines
.
in
which
Mannor
the
Tenants
hold
Estates
,
by
Copy
to
them
and
their
Heirs
,
by
the
words
(
Sibi
&
Suis
)
for
99
years
yielding
a
Rent
,
paying
a
Herriot
,
and
doing
of
Suit
and
Service
,
&c.
And
by
the
Custom
of
the
said
Mannor
,
the
Lords
upon
Expiration
of
every
Estate
,
ought
to
renew
upon
reasonable
Fines
,
and
which
said
Estates
,
by
the
Custom
of
the
Mannour
,
do
descend
from
Heir
to
Heir
,
and
their
Estates
to
be
renewed
for
reasonable
Fines
,
they
being
expired
,
which
the
Lords
of
the
Mannor
refuse
,
demanding
more
than
the
Fee
for
a
Fine
,
whereas
two
years
value
,
was
as
much
as
ever
was
,
or
ought
to
be
given
or
demanded
.
The
Defendant
,
the
Lord
of
the
said
Mannor
insists
,
that
there
was
such
a
Custom
to
renew
for
99
years
,
but
the
Fines
always
at
the
will
of
the
Lord
,
and
such
as
the
Plaintiffs
could
agree
with
him
,
for
there
being
no
benefit
to
come
to
the
Lord
during
the
99
years
,
so
the
question
is
,
whether
the
Lord
shall
be
at
liberty
,
to
set
what
Fine
he
please
,
or
be
restreined
therein
by
this
Court
,
it
appearing
,
that
the
Fines
are
Arbitrary
.
The
Plaintiffs
insist
,
that
though
the
Fines
are
Arbitrary
,
yet
the
same
are
by
Law
supposed
to
be
reasonable
,
and
that
in
some
Cases
,
the
Law
had
adjudged
above
two
years
value
,
to
be
an
unreasonable
Fine
,
and
the
Defendant
had
demanded
10
and
12
years
value
for
a
Fine
,
which
is
very
extravagant
,
and
the
will
of
the
Lord
in
this
Case
ought
to
be
limited
.
The
Defendant
insists
,
that
the
Plaintiffs
Estates
,
and
Terms
for
99
years
,
expired
many
years
before
the
Bill
Exhibited
,
some
of
them
30
,
and
others
11
or
12
years
since
,
in
the
life-time
of
the
Defendants
Father
,
and
some
of
the
Plaintiffs
Estates
have
been
granted
to
others
,
and
Fines
levied
thereon
,
and
that
the
Tenants
of
the
said
Mannor
,
do
not
during
the
99
years
pay
any
Fines
upon
death
or
alteration
,
so
nothing
is
due
to
the
Lord
for
99
years
together
,
so
that
the
Defendant
insists
nine
or
ten
years
purchase
is
a
reasonable
Custom
.
This
Court
declared
,
The
Lord
of
a
Mannor
limited
to
two
years
value
,
for
a
Fine
.
the
will
of
the
Lord
ought
to
be
limited
,
and
that
the
Plaintiffs
onpayment
of
two
years
value
,
shall
be
admitted
to
their
said
Estates
,
and
hold
the
same
against
the
Defendant
,
and
all
claiming
under
him
,
and
that
the
Plaintiffs
shall
renew
such
Estates
within
one
year
after
the
Expiration
of
their
Term
,
in
case
they
be
of
Age
,
Tenants
Decree
to
renew
within
one
year
after
the
Leases
expired
.
or
within
the
four
Seas
at
such
time
,
or
otherwise
within
one
year
after
such
respective
Tenant
shall
attain
the
Age
of
21
,
or
return
from
beyond
the
Seas
,
or
else
such
Tenant
shall
be
for
ever
foreclosed
of
any
help
or
benefit
,
and
and
then
the
Lord
is
at
liberty
to
dispose
thereof
.
Warwick
contra
Cutler
,
30
Car.
2.
fo.
285.
THe
Testator
deviseth
Lands
to
be
held
by
his
Executors
,
Will
.
Lands
devised
to
be
held
by
Executors
,
till
his
Son
attain
22
years
,
Son
dyes
before
22
Executors
decreed
to
hold
the
Lands
till
the
said
22
years
.
till
the
Testators
Son
attained
22
years
of
Age
,
for
maintenance
of
the
Executrix
,
and
her
Children
,
that
the
said
Testators
Son
dyed
before
22
years
of
Age.
This
Court
decreed
the
Executrix
to
hold
the
Lands
against
the
next
Heir
,
until
the
said
Sons
Age
of
22
years
,
as
if
the
said
Son
had
lived
to
22
years
,
and
the
Plaintiffs
debt
on
Bond
,
to
be
paid
by
the
next
Heir
,
or
the
reversion
to
lye
liable
,
and
charged
therewith
.
Jolly
contra
Wills
,
30
Car.
2.
fo.
523.
THat
Roger
Garland
,
Elder
Brother
,
Will
.
Devise
of
Goods
to
J.
S.
for
11
years
,
the
remainder
over
J.S.
decreed
to
deliver
the
Goods
after
the
11
years
.
by
Will
,
did
give
unto
John
Wills
,
the
Defendants
late
Husband
,
the
use
of
all
and
singular
the
Goods
,
Plate
,
&c.
whatsoever
then
in
his
House
,
for
Term
of
11
years
from
his
death
,
and
after
the
11
years
expired
,
he
gave
the
same
to
his
two
Nephews
,
Robert
and
Roger
Garland
,
and
to
his
Niece
Elizabeth
the
Plaintiff
,
to
be
equally
divided
amongst
them
,
and
after
the
11
years
,
the
said
Wills
was
to
deliver
them
to
the
Plaintiff
.
The
Defendant
Wills
insists
,
that
by
the
bequest
of
the
said
Goods
for
the
11
years
,
she
and
her
Husband
to
whom
she
is
Executrix
,
are
well
intituled
to
the
property
of
them
,
and
that
the
Devisour
is
void
in
Law
and
Equity
.
This
Court
decreed
the
Defendants
Will
,
to
deliver
the
goods
to
the
Plaintiffs
,
to
be
divided
according
to
the
Will
,
the
said
11
years
being
expired
.
German
contra
Dom
Colston
,
30
Car.
2.
fo.
741.
THis
Court
decreed
,
Legatees
to
refund
to
make
up
Assets
.
that
in
case
hereafter
any
Debt
of
Sir
Joseph
Colston
,
should
be
discovered
and
recovered
against
his
Executors
the
Legatees
of
Sir
Joseph
Colston
are
to
refund
in
proportion
,
what
they
have
received
for
,
or
towards
their
Legacies
,
to
make
up
Assets
for
satisfaction
thereof
.
Cotton
contra
Cotton
,
30
Car.
2.
fo.
71.
&
282.
THat
Nicholas
Cotton
being
seized
in
Fee
of
Copyhold
,
Devise
.
and
Free
hold
Lands
in
Middlesex
and
Surry
,
of
500
l.
per
Annum
,
in
1676.
dyed
without
Issue
,
wherebythe
same
descended
to
the
Plaintiff
,
as
Couzen
and
Heir
to
the
said
Nicholas
,
but
the
Defendant
Katherine
Cotton
,
pretends
that
the
said
Nicholas
Cotton
made
his
Will
in
Writing
,
25
years
since
,
viz.
in
1650.
having
first
surrendred
the
said
Copyhold
Land
to
the
use
of
his
Will
,
and
bequeathed
the
same
to
the
said
Defendant
,
Mrs.
Katherine
Cotton
his
Relict
,
and
her
Heirs
;
but
if
such
Will
were
,
the
said
Nicholas
purchased
some
Lands
since
,
which
descended
to
the
Plaintiff
,
and
that
the
said
Nicholas
a
little
before
his
death
,
contracted
with
Sir
Thomas
Lee
and
his
Trustees
,
for
certain
Copyhold
,
and
other
Lands
in
Sunbury
,
and
was
to
pay
1110
for
the
same
,
and
paid
most
of
the
Mony
in
his
Life-time
,
and
had
possession
.
The
Defendant
Mrs.
Cotton
insists
,
that
Nicholas
Cotton
her
late
Husband
,
deposited
in
the
Hands
of
the
said
Sir
Thomas
Lee
,
or
his
Trustees
600
l.
designing
to
purchase
the
said
Land
in
Sunbury
;
but
her
said
Husband
Cotton
,
was
to
have
interest
for
the
said
Mony
,
and
he
only
rented
the
said
Sunbury
Lands
,
and
not
purchased
them
,
because
a
good
Title
could
not
appear
,
but
insist
,
that
after
the
death
of
her
Husband
,
she
purchased
the
premisses
,
and
paid
320
l
more
then
the
600
l.
paid
into
the
said
Sir
Thomas
Lee's
Hands
,
and
that
her
Husband
by
the
said
Will
,
devised
to
her
all
his
Real
and
Personal
Estate
,
and
made
her
Executrix
.
This
Cause
being
now
heard
by
Mr.
Articles
for
a
purchase
,
and
600
l.
paid
(
but
interest
was
paid
for
it
till
the
Conveyance
executed
)
contractor
dyes
before
any
conveyance
,
the
600
l.
was
part
of
his
personal
Estate
.
Justice
Windham
,
who
on
reading
the
Articles
between
the
said
Nicholas
Cotton
,
and
the
said
Sir
Thomas
Lee
,
whereby
the
said
Nicholas
Contracted
with
him
for
the
purchase
of
his
Free
and
Copyhold
Lands
in
Sunbury
,
in
Fee
simple
for
920
l.
is
of
Opinion
,
that
the
said
Nicholas
dyed
before
any
Conveyance
made
by
the
said
Sir
Thomas
Lee
of
the
said
premisses
to
the
said
Nicholas
,
and
the
said
Sir
Thomas
paying
Interest
for
the
said
600
l.
and
the
said
Nicholas
paying
Rent
for
the
said
premises
,
the
said
600
l.
at
the
death
of
the
said
Nicholas
,
was
part
of
his
personal
Estate
,
and
as
to
that
600
l.
could
not
relieve
the
Plaintiff
,
but
difmist
the
Bill
.
And
as
to
the
Morgage
made
to
Perkins
by
the
said
Nicholas
,
and
the
Defendant
his
Relict
,
it
appearing
that
part
of
the
Morgaged
Lands
was
before
that
Morgage
made
,
Equity
of
redemption
to
whom
belongeth
.
setled
on
the
said
Nicholas
;
and
Katherine
in
Joynture
,
or
otherwise
,
so
as
the
same
came
to
her
as
Survivor
,
this
Court
is
of
Opinion
,
that
the
Equity
of
Redemption
,
belongs
to
her
as
survivor
,
and
not
to
the
Plaintiff
.
But
as
for
the
other
part
of
the
Mortgaged
premisses
,
and
other
matters
in
the
Plaintiffs
Bill
,
for
which
he
seeks
relief
as
Heir
.
The
question
being
,
whether
any
republication
were
of
the
said
Nicholas
his
Will
,
Republication
of
a
Will
.
and
whether
the
same
Lands
do
belong
to
the
Plaintiff
as
Heir
,
or
to
the
Defendant
Katherine
as
Devisee
by
force
of
the
said
Will
.
This
Court
referred
that
point
to
a
Tryal
at
Law
upon
this
Issue
,
whether
the
said
Nichelas
Cotton
,
did
by
his
said
Will
,
devise
the
said
Lands
in
Shepperton
in
the
Defendants
answer
mentioned
to
be
purchased
by
the
said
Nicholas
Cotton
of
one
Rowsell
in
Fee
in
1659.
to
the
said
Katherine
,
or
not
.
A
Tryal
at
Law
having
been
had
upon
the
point
aforesaid
,
a
Special
Verdict
was
by
the
Lord
Chief
Justice
North's
direction
sound
,
Lands
decreed
to
the
Devisee
.
and
on
a
Solemn
Argument
before
all
the
Judges
of
the
Common
Pleas
,
they
unanimously
gave
Judgment
for
the
Defendant
,
that
the
Lands
in
question
,
did
belong
to
the
Defendant
Katherine
,
as
Devisee
by
the
said
Will
.
This
Court
confirmed
the
Judges
Opinion
.
Civil
contra
Rich
,
30
Car.
2.
fo.
338.
THat
Sir
Edwin
Rich
made
his
Will
,
whereby
he
after
some
Legacies
gives
and
Bequeaths
all
the
residue
of
his
Estate
both
real
and
personal
,
to
Sir
Charles
Rich
his
Heirs
and
Assigns
for
ever
,
and
maks
him
Executor
of
his
Will
,
and
in
his
Will
says
,
he
left
his
Estate
as
aforesaid
,
in
Trust
with
him
,
wherewith
to
reward
his
Children
and
Grand-children
according
to
their
demerit
.
This
Court
declared
,
A
general
Trust
in
a
Will
for
Children
,
and
not
a
fixed
Trust
to
create
a
certainty
of
right
.
That
as
to
Sir
Edwins
Estate
taking
the
words
of
the
Will
of
the
said
Sir
Edwin
as
they
were
,
they
could
amount
to
no
more
than
a
general
Trust
in
Sir
Charles
,
to
reward
such
of
his
Children
,
and
Grand
children
as
they
should
demerit
,
and
as
Sir
Charles
should
think
fit
,
and
not
an
absolute
fixed
Trust
,
to
create
a
certainty
of
right
or
in
terest
as
to
any
certain
Proportion
,
in
any
of
the
Children
or
Grand
children
,
much
less
in
the
Plaintiff
Civil
Rich
,
who
demands
the
greatest
part
of
the
Estate
,
and
that
it
was
in
the
Grandfathers
power
,
to
give
the
said
Estate
,
or
what
Proportions
thereof
as
he
pleased
,
to
any
of
his
Children
or
Grand-children
,
but
whatever
of
the
real
Estate
of
Sir
Edwin
was
disposed
,
or
setled
by
the
said
Sir
Charles
by
act
Executed
in
his
Life
time
,
or
was
devised
,
or
given
by
the
Will
of
the
said
Sir
Charles
,
the
Plaintiff
not
to
be
releived
,
but
dismist
the
Bill
.
Boeve
contra
Skipwith
,
30
Car.
2.
fo.
140.
THe
Bill
is
a
Suplemental
Bill
,
A
Supplemental
Bill
,
for
a
further
discovery
.
to
have
a
further
discovery
from
the
Defendant
by
way
of
Evidence
,
for
the
better
clearing
the
Matters
depending
on
the
Account
,
which
the
Defendant
hath
not
answered
in
the
former
Cause
.
The
Plaintiff
pleaded
the
former
Bill
,
to
which
the
Defendant
answered
,
and
the
Cause
heard
,
and
the
Account
directed
.
This
Court
ordered
the
Defendant
to
answer
to
all
Matters
in
this
Bill
,
not
answered
to
in
the
former
Cause
,
but
the
Plaintiff
not
to
reply
,
nor
to
proceed
further
.
Dom.
Grey
&
al'
contra
Colvile
,
&
al'
30
Car.
2.
fo.
397.
THe
Plaintiff
the
Lady
Greys
Bill
is
to
be
relieved
for
a
debt
of
1500
l.
and
Interest
on
Bond
,
Lands
purchased
in
Trust
decreed
Assets
to
to
pay
Judgment
.
wherein
John
Colvile
did
bind
himself
and
his
Heirs
,
to
repay
the
same
unto
the
Plaintiff
her
Executors
and
Assigns
,
that
the
same
might
be
paid
out
of
the
Lands
,
which
were
purchased
by
the
said
John
Colvile
with
his
own
proper
Mony
,
in
the
names
of
himself
and
the
Defendants
Wife
,
to
hold
to
them
two
for
their
lives
,
and
then
to
the
Heirs
of
Colvile
,
and
the
rest
were
purchased
in
the
names
of
the
said
Defendants
Morriss
and
Saunders
in
Trust
for
the
said
John
Colvile
and
his
Heirs
;
That
soon
after
and
before
the
1500
l.
was
paid
,
the
said
John
Colvile
died
,
and
the
right
and
equity
of
the
premisses
,
during
the
life
of
the
said
Defendants
Wife
is
in
Josia
Colvile
,
and
the
Reversion
in
Fee
after
the
death
of
the
said
Wife
,
will
descend
to
the
said
Defendant
Josia
Colvile
,
as
Son
and
Heir
of
the
said
John
Colvile
,
and
the
profits
are
received
by
him
or
for
his
use
;
that
the
said
John
Colvile
dying
intestate
,
Administration
is
granted
to
Dorothy
his
Relict
,
who
pleads
she
hath
no
personal
Estate
,
whereupon
the
Lady
Grey
commenced
a
Sute
at
Law
,
by
filing
an
Original
for
her
said
debt
against
the
Defendant
Josia
as
Son
and
Heir
of
the
said
John
Colvile
,
and
hath
got
Judgment
thereon
to
have
satisfaction
for
the
said
debt
,
out
of
the
Reversion
of
the
Lands
of
John
,
which
descended
in
Fee
to
the
said
Defendant
Josia
Colvile
,
and
ought
to
have
satisfaction
accordingly
,
but
the
said
Defendant
Josia
pretendeth
he
hath
nothing
by
descent
in
present
,
but
the
Reversion
of
the
Lands
purchased
in
the
names
of
John
Colvile
and
his
Wife
,
after
the
death
of
his
Wife
,
whereas
he
and
the
other
two
Defendants
were
only
Trustees
for
John
Colvile
and
his
Heirs
,
and
their
Trust
being
now
come
to
the
Defendant
Josia
,
they
are
liable
as
Assets
in
equity
for
satisfaction
of
the
Plaintiffs
debts
,
and
the
Plaintiff
ought
to
be
let
into
the
immediate
Possession
,
and
the
said
Josia
also
insists
,
That
the
premisses
are
incumbred
by
a
former
Judgment
of
one
Lease
for
800
l.
and
the
Plaintiffs
Creditors
,
and
other
the
Creditors
in
their
Suit
,
seeking
relief
against
the
same
Defendants
,
upon
the
same
Trust
and
Equity
,
and
to
have
their
debts
paid
out
of
the
said
Lands
,
they
insisting
they
are
Creditors
by
Judgment
,
grounded
on
Original
of
the
same
day
and
date
with
the
said
Lady
Grey
,
and
ought
to
be
satisfied
in
equal
degree
and
time
.
The
Plaintiffs
Creed
and
the
other
Creditors
insist
,
Judgments
to
Attach
Lands
according
to
priority
of
Originals
.
That
they
for
so
much
as
the
Estate
in
Law
of
Wise
is
in
the
Heir
,
that
their
Judgments
ought
to
Attach
the
Lands
according
to
priority
of
Originals
,
and
tho'
the
said
Leke
have
obtained
a
Decree
,
prior
to
the
Creditors
in
these
Suits
,
yet
the
same
is
to
be
subject
to
the
direction
of
this
Court
,
and
ought
not
to
take
place
,
but
according
to
the
Date
of
their
Originals
.
This
Court
(
it
being
admitted
by
all
that
the
Original
on
which
the
said
Lekes
Judgment
is
grounded
,
is
prior
to
all
the
other
Creditors
Originals
,
and
that
the
Plaintiff
the
Lady
Grey
,
and
Creeds
Originals
are
next
in
priority
,
and
bear
the
same
date
one
with
another
,
and
ought
next
to
be
satisfied
with
other
Judgments
,
who
Originally
bear
the
same
date
)
declared
,
that
the
Estate
purchased
in
the
Names
of
the
Defendants
Wise
as
aforesaid
,
was
a
Trust
for
life
,
attending
the
Reversion
,
and
so
liable
to
make
the
several
Plaintiffs
Satisfaction
for
their
Debts
,
and
should
be
enjoyed
by
the
Plaintiffs
,
against
the
said
Wise
and
Josiah
Colvile
the
Heir
,
and
the
Court
decreed
,
that
if
the
Estate
of
Wise
as
aforesaid
were
not
sufficient
,
then
the
said
Reversionary
Lands
,
purchased
in
the
Names
of
the
said
Morris
and
Sanders
,
after
the
death
of
Sir
John
Tufton
,
who
hath
an
Estate
for
life
in
the
said
Lands
,
should
go
towards
Satisfaction
of
the
said
Debts
.
Carr
contra
Bedford
,
30
Car.
2.
fo.
64.
THe
Bill
being
,
Will
.
that
Edmund
Arnold
having
no
Child
,
by
his
Will
,
whereof
,
he
made
the
Defendant
Bedford
Executor
,
gave
several
Legacies
to
several
persons
and
uses
,
and
gave
all
the
rest
and
residue
of
his
Moneys
and
Personal
Estate
after
Debts
paid
,
to
and
amongst
his
Kindred
,
according
to
their
most
need
,
to
be
distributed
amongst
them
by
his
Executors
,
saving
such
Legacies
as
should
by
his
Will
,
or
any
Codicil
further
dispose
of
,
and
the
Testator
afterwards
by
Codicil
gave
other
Legacies
,
and
desired
that
a
care
and
regard
should
be
had
to
the
Plaintiff
,
John
Buncher
.
The
Defendant
the
Executor
insists
,
that
he
not
knowing
to
what
degroe
of
Kindred
the
bequest
of
the
said
residue
ought
to
extend
,
he
had
annexed
two
Schedules
of
Remorest
Kindred
,
and
is
advised
until
their
several
Claims
,
were
examined
and
setled
by
this
Court
,
he
could
not
safely
make
a
distribution
.
This
Court
taking
into
consideration
,
Devise
after
Debts
and
Legacies
paid
,
the
Residue
(
amongst
his
Kindred
,
according
to
their
most
need
)
this
to
be
extended
according
to
the
Act
for
better
Settlement
of
Intestates
Estates
.
to
what
degree
of
Kindred
the
Testator's
bequest
of
the
residue
of
his
Personal
Estate
to
his
Kindred
of
most
need
could
extend
,
that
the
Act
of
Parliament
for
better
setling
Intestates
Estates
,
was
the
best
Rule
that
could
be
observed
,
as
to
the
Limiting
the
extent
of
the
word
Kindred
,
and
that
it
should
extend
only
to
the
Testators
Sister
,
Ann
Carr
,
and
her
Children
,
and
to
the
Testators
Nephews
and
Nieces
now
living
,
and
that
no
Kindred
out
of
the
degree
of
a
Brother
or
Sister
to
the
Testator
,
or
a
Child
of
such
Brother
or
Sister
,
ought
to
come
in
or
have
any
share
of
the
said
Residue
,
and
that
amongst
those
that
are
to
come
into
the
Distribution
,
the
Executor
ought
chiefly
to
consider
those
that
have
most
need
,
that
so
they
that
have
more
need
,
may
have
more
than
they
that
have
less
,
and
decreed
the
same
accordingly
:
and
as
to
the
said
John
Buncher
,
who
was
his
Sisters
Son
,
and
so
to
have
share
,
and
was
particularly
recommended
to
the
Executor
,
who
the
Court
declared
had
a
power
to
give
some
more
than
other
,
this
Court
ordered
the
Executor
to
give
him
somewhat
considerably
out
of
the
Residue
of
the
said
Estate
,
and
the
Executor
to
distribute
the
remainder
to
such
of
the
Kindred
,
as
are
to
come
into
the
Distribution
,
as
shall
appear
to
the
said
Executor
to
have
most
need
,
and
in
such
manner
and
proportion
,
as
he
shall
think
fit
,
and
Sir
Samuel
Clark
,
one
of
the
Masters
of
this
Court
,
is
to
see
right
done
in
this
Case
,
Distribution
.
and
the
Bill
wherein
the
Plaintiffs
which
are
beyond
the
degrees
of
Nephews
of
the
said
Testator
,
is
to
stand
dismist
.
Bourne
contra
Tynt
,
30
Car.
2.
fo.
636.
THe
Case
is
,
Will
.
that
Roger
Brown
the
Plaintiffs
Brother
,
by
his
Will
in
1671.
devised
to
Executors
in
Trust
,
all
Lands
as
before
that
time
were
Mortgaged
to
him
,
and
all
Money
due
thereupon
,
that
they
should
lay
out
so
much
of
his
Personal
Estate
,
as
remained
after
Debts
and
Legacies
paid
in
a
purchase
of
Lands
of
Inheritance
,
to
be
setled
on
the
first
Son
of
his
Body
,
and
the
Heirs
Males
of
the
Body
of
such
first
Son
,
and
so
to
all
Sons
in
Tail
Male
,
and
for
want
of
such
Issue
on
the
Plaintiff
for
life
,
remainder
to
the
Plaintiffs
eldest
Son
in
Tail
,
remainders
over
to
the
Plaintiffs
Children
in
Tail
,
and
by
his
Will
declared
and
devised
,
that
in
case
the
Child
his
said
Wife
was
then
big
withal
,
should
be
a
Daughter
,
then
he
gave
to
her
1000
l.
to
be
paid
to
her
at
21
or
6
Months
after
Marriage
,
and
in
case
,
she
Marryed
with
consent
of
the
Trustees
,
then
the
said
Portion
to
be
3000
l.
and
it
was
provided
by
the
said
Will
,
that
the
Trustees
out
of
the
Interest
of
the
said
3000
l.
should
pay
for
the
Maintenance
of
the
said
Child
,
80
l.
per
Annum
,
and
it
was
also
provided
,
that
in
case
such
Daughter
should
dye
before
such
Marriage
or
Age
of
21
then
her
Portion
and
Mony
so
devised
to
her
,
should
go
,
and
be
for
the
use
and
benefit
of
such
Person
or
Persons
as
should
at
any
time
enjoy
his
Lands
of
Inheritance
according
to
the
Will
;
and
thereby
declared
the
same
Money
to
be
laid
out
in
a
Purchase
of
Lands
,
to
be
setled
as
aforesaid
,
and
also
declared
,
that
the
rest
of
the
Personal
Estate
not
given
or
disposed
of
by
his
Will
,
should
all
be
bestowed
in
Lands
of
Inheritance
,
and
setled
as
aforesaid
;
and
the
said
Roger
Burne
,
dyed
without
Issue
Male
of
his
Body
and
about
three
Months
after
the
said
Defendant
Florence
his
only
Daughter
was
Born
,
and
the
Trustees
have
not
pursuant
to
the
Will
,
laid
out
the
Personal
Estate
in
Lands
,
so
that
the
Plaintiff
ought
to
have
the
Interest
of
such
Money
,
as
should
have
been
laid
out
in
Lands
.
The
question
in
this
case
being
,
whether
the
3000
l.
and
the
Interest
thereof
over
and
above
the
80
l.
per
Annum
Maintenance
of
the
Defendant
Florence
,
should
be
paid
to
the
Defendant
,
or
to
the
Plaintiff
,
who
claims
the
same
by
virtue
of
the
Will
,
in
case
the
said
Defendant
Florence
had
not
happened
to
be
Born
,
the
Will
being
made
before
she
was
Born
,
and
the
Plaintiff
claiming
the
3000
l.
and
Interest
over
and
above
the
said
80
l.
per
Annum
,
in
Case
she
should
dye
,
or
not
be
Marryed
,
or
incapacitated
to
dispose
thereof
.
The
Defendant
insists
,
that
the
Plaintiff
having
a
very
considerable
Estate
from
the
Testator
by
the
said
Will
,
which
would
have
descended
to
the
Defendant
Florence
,
in
case
she
had
been
born
and
living
at
the
time
of
the
Death
of
her
said
Father
,
and
that
the
Plaintiff
cannot
have
any
pretence
to
the
interest
of
the
said
3000
l.
as
aforesaid
,
for
that
there
is
not
any
Clause
or
Direction
in
the
Will
touching
the
same
.
Portion
and
Interest
devised
upon
a
contingency
of
dying
or
Marriage
decreed
to
be
paid
into
Court
for
the
benefit
of
the
Heir
according
to
the
Will
,
in
case
of
the
Devisees
death
.
This
Court
declared
the
3000
l.
and
Interest
over
and
above
the
said
80
l.
per
Annum
,
belongs
to
the
Plaintiff
,
in
case
the
said
Florence
dye
before
she
receive
the
same
by
the
said
Will
,
and
Decreed
that
the
Interest
of
the
3000
l.
be
paid
into
Court
,
and
not
to
be
taken
out
,
without
good
Security
,
given
by
the
said
Helena
,
to
make
good
the
Benefit
thereof
to
the
Plaintiff
,
in
case
the
said
Florence
dye
before
21
years
,
or
Marryed
as
aforesaid
,
as
the
Will
directs
.
Elvard
contra
Warren
&
al'
,
31
Car.
2.
fo.
350.
THe
Defendant
being
in
Contempt
for
disobeying
a
Decree
,
Prisoner
by
Habeas
Corpus
brought
from
Bristol
and
turned
over
to
the
Fleet
,
for
that
he
was
in
contempt
.
and
being
a
Prisoner
in
Bristol
,
a
Habeas
Corpus
cum
causis
,
was
ordered
to
bring
him
to
the
Bar
of
this
Court
,
who
was
brought
up
,
and
turned
over
to
the
Fleet
,
who
is
there
a
Prisoner
,
and
refuses
to
obey
the
said
Decree
.
The
Court
ordered
a
Sequestration
against
his
Real
and
Personal
Estate
.
Warner
contra
Borsley
,
31
Car.
2.
fo.
629.
THe
question
being
,
Devise
.
whether
a
Devise
of
the
Plaintiffs
Father
by
his
Will
of
his
Personal
Estate
,
and
Debts
to
the
Plaintiff
in
remainder
after
the
death
of
his
Mother
,
and
the
Devise
thereof
to
her
in
the
first
place
,
she
being
Executrix
to
the
said
1st
.
Testator
,
and
the
Defendant
her
Executor
,
were
good
or
not
.
The
Plaintiff
insisted
,
That
the
Devise
of
the
personal
Estate
by
the
Will
of
the
Testator
to
his
Wife
,
was
an
absolute
Devise
to
her
by
operation
of
Law
and
was
vested
in
her
,
and
so
consequently
in
the
Defendant
,
who
is
Executor
of
the
said
Alice
,
by
virtue
of
the
said
Executor
,
and
the
Devise
or
Limitation
over
to
the
Plaintiff
after
the
death
of
his
said
Mother
,
who
was
Executrix
of
the
first
Testator
,
was
absolutely
void
in
Law
,
and
the
said
Defendant
as
Executor
to
the
Plaintiffs
said
Mother
,
is
well
intituled
to
the
said
personal
Estate
,
devised
by
the
Testators
said
Will
.
The
Plaintiff
insisted
,
That
the
Devise
to
the
Plaintiff
in
Remainder
,
after
death
of
his
Mother
was
a
good
Devise
,
and
ought
to
be
countenanced
,
the
rather
in
regard
such
Devise
in
the
life
time
of
the
said
Testator
and
Testatrix
was
consented
,
and
agreed
to
by
the
Relict
and
Executrix
,
and
so
decreed
at
the
former
hearing
.
This
Court
declared
,
Devise
of
a
Personal
Estate
in
Remainder
after
the
death
of
J.S.
is
a
void
Devise
and
Vests
wholy
in
J.S.
she
being
Executrix
.
That
the
Devise
of
the
personal
Estate
to
the
Plaintiff
in
Remainder
was
a
void
Devise
,
and
the
said
Estate
to
the
Testator
immediately
thereupon
did
Attach
and
vest
in
the
said
Alice
,
his
Relict
and
Executrix
,
and
the
Defendant
as
her
Executor
,
was
,
and
is
well
intituled
thereto
,
and
decreed
accordingly
.
Bredhust
contra
Richardson
,
31
Car.
2
fo.
695.
THat
Samuel
Russell
by
his
Will
,
gave
to
his
three
Daughters
,
Sarah
,
Christian
and
Elizabeth
540
l.
to
be
divided
amongst
them
,
viz.
For
each
of
them
in
particular
180
l.
but
if
any
one
or
two
of
them
,
540
l.
To
be
divided
amongst
three
Daughters
,
and
if
one
or
two
dyes
without
Issue
the
Daughters
to
Inherit
each
other
,
one
Marries
the
Plaintiff
and
dyes
,
Sans
Issue
,
the
Plaintiff
is
intituled
to
the
180
l.
as
Administrator
to
his
Wife
.
should
dye
without
leaving
a
Child
,
that
the
Daughters
should
Inherit
one
anothers
Goods
,
Monies
,
Lands
and
Chattels
,
which
the
deceased
should
leave
behind
them
,
and
that
the
Plaintiff
intermarried
with
the
said
Elizabeth
,
and
that
she
died
without
leaving
a
Child
,
before
payment
of
the
said
180
l.
The
Plaintiff
insists
,
That
he
as
Administrator
to
the
said
Elizabeh
his
Wife
,
is
intituled
to
the
said
180
l.
and
her
share
of
the
said
Goods
.
The
Defendant
insists
,
That
by
the
words
and
true
intent
of
the
Testator
and
the
said
Will
,
the
same
doth
not
belong
to
the
Plaintiff
,
but
came
or
in
Equity
belongs
to
the
Defendants
,
as
Surviving
Sisters
.
This
Court
declared
,
the
Plaintiff
is
well
intituled
to
the
said
180
l.
and
decreed
accordingly
.
Turner
contra
Turner
,
31
Car.
2.
fo.
102.
THat
the
Plaintiffs
Father
lent
to
Ayloff
700
l.
and
200
l.
at
another
time
,
for
which
Ayloff
Mortgaged
Lands
to
the
Plaintiffs
Father
and
his
Heirs
,
with
proviso
,
that
on
payment
of
600
l.
to
the
said
Plaintiff
Father
or
Heirs
,
then
the
premisses
to
be
reconveyed
to
Ayloff
;
that
the
Plaintiff
is
Executor
to
his
Father
and
Brothers
,
and
so
claims
the
Mortgages
,
as
vesting
in
the
Executors
of
his
Father
,
and
not
in
his
Heirs
.
The
Defendant
being
the
Son
and
Heir
of
the
Plaintiffs
eldest
Brother
deceased
,
and
Grandson
and
Heir
to
the
said
Plaintiff's
Father
,
insists
,
That
the
Plaintiff
and
Defendant
,
and
others
who
claimed
several
shares
,
and
parts
of
the
Plaintiffs
Fathers
personal
Estate
agreed
to
a
Division
thereof
amongst
themselves
,
and
a
Division
was
made
,
and
Releases
given
of
each
ones
demands
in
Law
or
Equity
to
the
said
Estate
,
and
the
Plaintiff
in
particular
released
,
and
the
said
Ayloff's
Mortgage
with
the
Mony
due
thereon
with
other
things
,
was
set
out
and
allotted
to
the
Defendant
by
consent
of
all
the
parties
,
and
received
by
the
Defendant
in
part
of
his
share
,
and
the
Plaintiff
accounted
to
the
Defendant
for
the
profits
of
the
said
Ayloffs
Mortgaged
premisses
received
by
him
,
and
afterwards
in
1664
,
the
Defendant
had
a
Decree
for
the
Mortgage
Mony
against
Ayloffs
Executor
,
and
received
the
same
,
to
which
proceedings
the
Plaintiff
was
privy
,
and
the
Defendant
says
it
is
unreasonable
,
that
the
Plaintiff
should
now
make
a
demand
to
the
said
Mortgage
,
to
unsetle
matters
so
setled
by
his
own
consent
;
but
the
Plaintiff
insists
,
he
looked
on
the
premisses
at
that
time
to
come
to
the
Defendant
as
Heir
,
and
knew
not
his
own
Titile
thereto
,
and
the
shares
set
out
came
but
to
250
l.
apiece
,
and
Ayloffs
Mortgage
was
worth
800
l.
This
Court
is
of
Opinion
,
The
Heir
is
decreed
to
have
a
right
to
a
Mortgage
in
Fee
and
not
the
Executor
.
that
the
Plaintiff
ought
to
be
relieved
,
and
had
an
undoubted
Right
to
the
said
Mortgaged
premisses
,
and
decreed
the
Defendant
to
repay
all
the
Mony
received
by
him
thereon
to
the
Plaintiff
.
Bois
contra
Marsh
,
31
Car.
2.
Land
Legatees
,
and
Mony
Legatees
decreed
to
abate
in
proportion
notwithstanding
an
Agreement
to
the
contrary
.
fo.
441.
THis
Court
declared
,
That
all
the
Legatees
both
Land
Legatees
and
,
Mony
Legatees
ought
to
abate
in
propotion
,
notwithstanding
the
Agreement
to
the
contrary
,
and
that
the
said
Agreement
be
set
aside
.
Audley
contra
Dom'
Audley
,
31
Car.
2.
fo.
848.
THe
Bill
is
to
set
aside
a
Lease
made
by
Sir
Henry
Audley
the
Plaintiffs
Father
,
Power
to
make
Leases
,
if
well
pursued
.
to
the
Defendants
,
as
Trustees
for
the
Defendant
the
Lady
Audley
for
99
years
,
if
Henry
,
Francis
and
Ann
Audley
,
Children
of
Sir
Henry
by
the
Defendant
the
Lady
Audley
should
so
long
live
,
paying
yearly
so
much
Rent
as
amounts
to
two
parts
in
three
of
the
yearly
Value
of
the
said
Houses
,
according
to
the
best
improved
Value
.
But
the
Plaintiff
insists
,
The
said
Lease
is
not
made
pursuant
to
the
power
reserved
to
the
said
Henry
by
a
Deed
of
Settlement
made
by
one
Packington
in
4
Car.
1.
in
Consideration
of
a
Marriage
between
the
said
Sir
Henry
and
Ann
,
one
of
the
said
Packingtons
Daughters
and
Coheirs
;
by
which
it
was
declared
,
That
the
benefit
of
such
power
in
the
said
Sir
Henry
to
make
Leases
,
was
to
be
for
the
younger
Children
of
the
said
Sir
Henry
by
the
said
Ann
his
first
Wife
,
and
the
said
Lease
was
not
well
gained
from
Sir
Henry
.
The
Defendant
insisted
,
it
was
made
pursuant
to
the
power
,
which
was
,
That
Sir
Henry
should
have
power
to
make
Leases
,
for
a
provision
of
any
thing
he
should
have
,
or
otherwise
as
he
should
direct
.
Which
Matter
was
referred
to
the
Lord
Chief
Justice
Hales
,
who
declared
the
power
good
,
and
that
Sir
Henry
had
pursued
that
power
.
The
Plaintiff
insisted
,
That
the
Rent
reserved
is
altogether
uncertain
and
lies
only
in
Averment
,
and
that
if
the
Value
averred
by
the
Plaintiff
should
in
the
least
be
disproved
,
the
Plaintiff
would
be
Nonsuited
in
any
Action
:
And
so
insisted
,
That
it
was
proper
for
this
Court
to
fix
and
establish
that
for
a
standing
Rent
,
which
can
be
made
out
to
have
been
two
parts
of
the
best
improved
Value
at
the
time
of
making
the
said
Lease
,
and
that
the
Rent
so
to
be
ascertained
,
the
Defendant
might
Covenant
for
constant
payment
thereof
.
This
Court
,
on
perusal
of
the
said
Lease
and
power
,
and
of
the
Lord
Hales
Opinion
,
declared
the
said
Lease
to
be
good
and
sufficient
,
and
that
unless
proof
be
made
of
a
greater
value
than
the
Sum
of
290
l.
Two
parts
in
three
of
the
improved
value
reserved
as
a
Rent
by
a
power
,
the
constant
payment
of
such
a
Sum
at
the
time
of
making
the
said
Lease
,
decreed
to
be
paid
whether
the
premisses
rise
or
fall
.
which
hath
been
constantly
paid
by
the
Defendant
the
Lady
Audley
,
and
accepted
of
by
the
Plaintiff
,
that
the
said
Sum
must
be
taken
as
two
parts
of
the
full
value
of
the
premisses
at
the
time
of
making
the
said
Lease
,
which
,
or
the
greater
Value
,
if
so
proved
,
is
to
continue
to
be
paid
,
whether
the
said
premisses
rise
or
fall
in
Value
;
and
decreed
accordingly
.
Hethersell
contra
Hales
,
31
Car.
2.
fo.
845.
THe
Question
in
the
Case
is
touching
2500
l.
200
l.
allowed
a
Trustee
for
Charges
and
Expences
in
managing
a
Trust
.
demanded
by
the
Defendant
,
for
his
Charges
and
Expences
in
managing
the
Trust
in
question
,
which
began
in
1668.
and
continued
till
this
Defendants
Answer
was
put
in
,
in
which
time
the
Defendant
received
20000
l.
and
paid
the
same
all
away
to
the
Creditors
,
and
the
Plaintiff
had
not
surcharged
the
Defendant
6
d.
This
Court
took
till
this
day
to
consider
what
was
fit
to
be
allowed
in
a
matter
of
this
nature
,
and
having
considered
that
the
Defendant
was
a
Friend
to
the
Family
,
and
undertook
the
Trust
at
their
great
Importunity
,
he
having
a
considerable
Estate
when
he
undertook
the
Trust
,
and
considering
the
charges
of
Surveying
the
whole
Estate
,
setting
and
letting
the
same
,
looking
after
Tenants
,
adjusting
their
Accounts
,
calling
in
their
Rents
,
returning
Monies
to
Creditors
,
and
treating
with
and
stating
their
Debts
,
and
procuring
and
agreeing
with
Purchasors
,
and
for
Law
charges
,
and
for
keeping
Servants
and
Horses
,
and
employing
others
in
Journeys
to
London
and
elsewhere
,
and
his
Care
there
(
lying
from
home
a
long
time
)
was
of
Opinion
,
That
the
Defendant
might
well
deserve
the
whole
2500
l.
yet
doth
allow
but
2000
l.
which
the
said
Defendant
is
to
have
.
Ray
&
Vx
ejus
contra
Stanhope
,
31
Car.
2.
fo.
809.
THe
Bill
is
,
That
Sir
Edward
Stanhope
,
Trust
.
the
Plaintiff
Elizabeths
Grandfather
by
Deed
demised
Lands
to
Trustees
for
ten
years
after
the
said
Edwards
death
,
upon
Trust
,
that
they
should
out
of
the
Profits
pay
to
the
Plaintiff
Elizabeth
for
her
Maintenance
20
l.
per
annum
until
her
Age
of
21.
and
should
further
pay
to
the
Plaintiff
Elizabeth
at
her
Age
of
21.
if
she
so
long
keep
unmarried
,
1000
Marks
for
her
Portion
:
That
the
said
Sir
Edward
died
,
leaving
Issue
Edward
Stanhope
the
Plaintiff
Elizabeths
Father
his
Son
and
Heir
,
she
being
then
12
years
of
Age
:
That
after
Sir
Edwards
death
the
Trustees
did
not
intermeddle
,
but
left
all
to
the
management
of
the
said
Plaintiffs
Father
,
who
received
all
the
Profits
,
and
on
that
Consideration
,
Edward
Stanhope
the
Plaintiffs
Father
demised
to
Trustees
the
said
premisses
,
the
Reversion
of
which
he
was
seized
in
Fee
expectant
upon
the
said
Term
of
10
years
,
and
other
Lands
,
whereof
he
was
Seized
in
Fee
,
to
hold
for
20
years
upon
Trust
,
to
pay
the
Plaintiff
Elizabeth
20
l.
per
Annum
,
until
her
Marriage
,
and
500
l.
after
her
Marriage
,
in
such
manner
as
in
the
said
Deed
for
20
years
is
expressed
,
and
the
same
was
said
to
be
made
in
consideration
of
the
Preferment
the
said
Sir
Edward
intended
for
the
Plaintiff
Elizabeth
his
Grandchild
,
that
the
Plaintiff
received
the
profits
of
the
premisses
,
in
the
said
former
Lease
,
during
the
10
years
,
and
profits
of
the
Premisses
in
the
said
latter
Lease
,
so
long
as
he
lived
,
and
maintained
the
Plaintiff
,
and
in
1658.
the
Plaintiff
Elizabeths
Father
dyed
without
Issue
Male
;
but
in
his
life
after
the
said
Lease
for
20
years
,
setled
the
premisses
with
other
Lands
of
500
l.
per
Annum
,
upon
the
Defendant
his
Brother
,
without
any
consideration
,
save
natural
Affection
,
and
the
Defendant
hath
since
received
the
profits
that
the
Plaintiff
Elizabeth
was
unmarryed
at
her
Fathers
Death
,
and
was
his
only
Child
,
and
about
nineteen
years
before
the
Bill
exhibited
,
she
Marryed
George
Stanhope
who
dyed
,
and
about
7
years
since
she
Marryed
the
Plaintiff
Ray
,
so
to
have
Satisfaction
of
the
20
l.
per
annum
from
her
Fathers
Death
,
to
the
time
of
her
Marriage
with
George
Stanhope
,
and
the
500
l.
and
Interest
from
her
said
Marriage
;
but
the
Defendant
refuseth
to
pay
the
same
,
pretending
the
said
several
Terms
are
expired
,
and
that
the
Lands
of
60
l.
per
Annum
,
descended
upon
the
Plaintiff
Elizabeth
,
by
her
Fathers
permission
,
in
Satisfaction
of
the
said
Money
;
but
the
Plaintiff
insists
,
the
Lands
descended
to
her
from
her
Father
,
were
charged
with
500
l.
which
she
hath
paid
,
and
she
had
no
other
provision
made
for
her
out
of
her
Fathers
Estate
,
and
that
the
Defendant
had
an
Estate
of
500
l.
per
Annum
come
to
him
by
a
voluntary
Settlement
from
the
Plaintiffs
Father
.
The
Defendant
insisted
,
that
if
the
Plaintiff
Eliz.
Father
did
make
such
demise
for
20
years
,
he
had
no
power
so
to
do
,
being
but
Tenant
for
life
,
by
a
Settlement
made
by
the
said
Sir
Edward
,
and
so
the
Defendant
not
liable
to
pay
the
Moneys
,
and
the
Defendant
claims
the
Lands
and
Premisses
by
vertue
of
a
Fine
and
Settlement
made
by
the
said
Edward
Stanhope
the
Plaintiffs
Father
,
wherein
the
Defendant
and
his
Brother
George
Stanhope
joyned
,
and
though
the
said
Defendant
is
the
Heir
Male
of
this
Family
,
yet
he
receives
little
there
out
of
the
said
Estate
,
the
same
being
charged
with
86
l.
per
An.
and
the
Plaintiff
hath
not
only
enjoyed
the
said
62
l.
per
ann
.
charged
only
with
500
l.
but
also
as
Administrator
to
her
said
Father
,
received
out
of
his
Personal
Estate
600
l.
and
if
she
should
have
the
500
l.
in
question
also
,
she
would
have
a
greater
share
out
of
the
Estate
,
Arrears
of
Annuity
decreed
to
be
paid
,
and
also
a
portion
of
500
l.
upon
the
Defendants
owning
it
in
a
Letter
.
than
the
Defendant
.
This
Court
,
upon
reading
a
Letter
from
the
Defendant
,
wherein
he
owns
the
500
l.
to
be
due
to
the
Plaintiff
Elizabeth
,
on
her
Marriage
,
and
20
l.
per
Annum
in
the
mean
time
,
or
to
that
effect
,
declared
the
Defendant
ought
to
pay
the
Arrears
of
the
said
20
l.
per
Annum
,
from
the
death
of
the
Plaintiffs
Father
,
to
her
Marriage
with
her
first
Husband
,
and
also
the
500
l.
with
the
Interest
thereof
,
from
the
time
it
was
raised
out
of
the
profits
,
and
decreed
the
same
accordingly
.
Dom.
Blois
&
al'
contra
Blois
&
al'
31
Car.
2.
fo.
723.
THe
Bill
of
the
Plaintiff
,
Will
.
Dame
Jane
Blois
,
and
of
Jane
her
Daughter
,
by
Sir
William
Bloys
,
is
(
viz.
)
that
the
said
Sir
William
Blois
,
Father
of
the
said
Jane
the
Infant
,
being
Seized
of
Lands
by
his
Will
,
gave
all
his
Real
and
Personal
Estate
to
the
Defendant
Dame
Elizabeth
,
to
the
Plaintiff
Dame
Jane
,
and
to
the
Defendant
Mary
Brook
,
and
Abigal
Hodges
,
provided
that
his
Son
Charles
Blois
,
should
have
300
l.
per
Annum
,
thereof
,
and
all
his
Goods
should
be
equally
divided
amongst
his
4
Children
,
as
soon
as
the
said
Charles
should
by
a
Match
,
raise
9000
l.
to
be
paid
to
his
Sisters
,
and
made
the
four
Children
Executors
,
and
dyed
,
whereby
the
Plaintiff
Dame
Jane
,
and
the
rest
of
the
Executors
,
were
Intituled
to
all
the
Real
and
Personal
Estate
,
to
them
and
their
Heirs
as
joynt
Tenants
,
in
Trust
nevertheless
for
the
said
Elizabeth
and
Mary
,
and
the
Infant
Plaintiff
,
until
the
Sum
of
9000
l.
should
be
raised
and
paid
unto
them
,
and
secured
unto
them
by
the
Defendant
Charles
,
the
only
Son
and
Heir
of
the
said
Sir
William
.
The
Defendants
,
Charles
,
Elizabeth
,
Mary
Brook
,
and
Abigal
Hodges
insist
,
that
Sir
William
in
his
Life
time
,
upon
his
second
Marriage
with
the
said
Plaintiff
Dame
Jane
,
(
the
Defendants
Charles
,
Elizabeth
,
and
Mary
Brooke
,
being
the
Issue
of
the
said
Sir
William
,
by
a
former
Venter
)
by
deed
setled
a
great
part
of
his
Estate
in
Trust
for
the
said
Dame
Jane
as
her
Joynture
,
wherein
provision
was
made
whereby
the
said
Plaintiff
Jane
his
Daughter
was
to
have
3000
l.
out
of
his
Estate
for
her
Portion
,
and
that
Sir
William
declared
,
he
intended
her
no
more
,
and
that
the
Defendants
Elizabeth
,
and
Mary
,
Sisters
of
the
whole
Blood
to
the
Defendant
Charles
,
should
have
their
Portions
out
of
his
Estate
,
made
equal
with
the
portion
provided
for
the
Plaintiff
Jane
the
Infant
,
as
aforesaid
,
and
that
the
9000
l.
to
be
raised
by
the
Defendant
Charles
,
was
for
all
his
Sisters
Portions
,
including
the
said
Plaintiff
Jane
,
the
Infant
,
but
over
and
above
the
said
3000
l.
provided
for
her
by
the
said
Settlement
,
and
hope
this
Court
will
not
think
it
reasonable
,
that
the
Estate
of
the
Defendant
Charles
shall
be
charged
with
the
payment
of
6000
l.
for
the
Plaintiff
Janes
portion
,
which
Sir
William
never
intended
to
be
above
3000
l.
and
insists
,
that
the
Plaintiff
Jane
being
Sister
by
the
second
Venter
,
ought
not
to
have
two
3000
l.
and
they
but
one
3000
l.
who
are
Sisters
of
the
whole
Blood
,
to
the
said
Charles
,
and
insist
,
that
the
said
Will
was
only
in
affirmation
of
the
said
Settlement
,
and
that
the
said
Sir
William
had
no
great
Fortune
with
the
said
Dame
Jane
.
The
Plaintiff
Dame
Jane
,
and
Jane
her
Daughter
,
insist
,
that
by
the
said
Settlement
on
Marriage
with
Dame
Jane
to
Sir
William
,
there
was
a
provision
for
Issue
Males
;
and
if
more
,
then
a
provision
for
3000
l.
for
Issue
Females
,
by
which
the
Plaintiff
Jane
the
Daughter
claims
3000
l.
And
then
Sir
William
by
his
Will
,
devising
9000
l.
to
be
raised
out
of
his
Lands
for
his
Daughters
Portions
(
viz.
)
3000
l.
apiece
,
not
excluding
the
said
Jane
,
she
is
as
much
thereby
intituled
to
a
third
part
of
the
Estate
devised
,
as
her
Sisters
are
to
3000
l.
apiece
;
and
there
was
a
good
Reason
for
such
double
Portion
for
Jane
the
Daughter
,
in
respect
the
said
Dame
Jane
did
bring
to
Sir
William
500
l.
per
Annum
Joynture
and
1000
l.
in
Mony
,
and
although
Dame
Jane
had
before
her
Marriage
a
separate
Maintenance
of
250
l.
a
year
out
of
the
said
500
l.
per
Annum
,
yet
it
was
paid
to
,
and
received
for
the
use
of
the
said
Sir
William
,
and
Sir
William
often
declared
,
it
should
be
made
up
to
her
Child
or
Children
.
This
Court
on
reading
the
Marriage
Settlement
and
Will
,
Upon
the
Construction
of
a
Marriage
Settlement
and
Will
,
only
one
Portion
decreed
of
3000
l.
and
not
6000
l.
by
which
it
appeared
that
the
said
Will
did
operate
as
well
upon
those
Lands
in
possession
,
as
those
in
Reversion
,
declared
there
was
no
proof
of
any
Intention
of
Sir
William
the
Father
to
make
a
double
Portion
for
Jane
his
Daughter
by
a
second
Venter
,
and
therefore
the
Plaintiff
Jane
the
Daughter
ought
to
have
but
one
3000
l.
but
that
she
ought
to
have
it
in
the
first
place
,
whether
the
Lands
in
present
possession
devised
,
and
the
said
Reversion
,
which
are
liable
to
the
said
Will
,
be
sufficient
or
not
to
raise
the
whole
9000
l.
(
viz.
)
3000
l.
to
the
Plaintiff
Jane
,
and
6000
l.
to
the
Defendant
by
the
first
Venter
,
and
decreed
accordingly
.
Stewkley
contra
Henley
,
31
Car.
2.
fo.
567.
THat
Sir
John
Trott
deceased
,
Will
.
being
seised
in
Fee
of
a
Rent
charge
of
200
l.
per
Annum
,
but
subject
to
a
Redemption
on
payment
of
3400
l.
by
his
Will
in
1670.
devised
the
said
Rent
to
Trustees
and
their
Heirs
,
and
all
benefit
thereof
on
Trust
,
that
they
should
suffer
Katherine
his
Daughter
(
then
the
Plaintiffs
Wife
,
and
since
deceased
)
her
Heirs
and
Assigns
,
to
receive
the
same
to
her
and
their
own
proper
use
:
That
shortly
after
the
Grantor
of
the
said
Rent
charge
redeemed
the
Rent-charge
by
payment
of
the
3400
l.
to
the
Plaintiff
Stewkley
and
his
said
Wife
Dame
Katherine
,
whereupon
they
came
to
an
Agreement
by
Deed
touching
the
said
3400
l.
(
viz.
)
as
to
1400
l.
thereof
should
be
paid
to
the
Plaintiff
,
he
conveying
Lands
to
Trustees
to
answer
the
Interest
of
the
said
1400
l.
to
the
said
Dame
Katherine
his
Wife
,
in
such
manner
as
the
said
Rent-charge
was
payable
by
her
Fathers
Will
,
and
with
further
power
of
Appointment
in
Dame
Katherine
,
to
direct
the
payment
of
any
part
of
the
said
1400
l.
by
her
Deed
or
Will
,
or
other
Writing
under
her
Hand
and
Seal
,
to
the
Plaintiff
or
Children
of
the
Plaintiff
and
the
said
Dame
Katherine
;
and
as
to
the
remaining
2000
l.
it
was
agreed
it
should
be
put
out
at
Interest
,
which
Interest
and
such
part
of
the
Principal
as
the
said
Dame
Katherine
should
by
Writing
under
her
Hand
and
Seal
,
was
to
be
paid
by
the
Trustees
as
he
should
appoint
,
and
for
want
of
such
Appointment
,
or
as
to
so
much
as
should
not
be
appointed
,
in
case
she
did
not
survive
the
Plaintiff
her
Husband
,
then
to
her
Heirs
and
Assigns
in
such
manner
as
the
said
Rent-charge
of
200
l.
per
Annum
was
demised
to
her
as
aforesaid
,
which
2000
l.
was
put
out
accordingly
:
That
about
1679.
Dame
Katherine
died
without
making
any
demise
or
appointment
at
all
,
she
knowing
the
Defendant
Charles
Stewkley
her
Son
was
well
provided
for
;
so
to
have
the
said
3400
l.
out
of
the
Trustees
hands
is
the
Plaintiffs
Suit
.
The
Plaintiff
insisting
,
A
Rent-charge
in
Fee
(
subject
to
Redemption
)
devised
,
the
Mortgage-Mony
is
paid
.
Decreed
,
the
Administrator
to
have
it
,
and
not
the
Heir
.
That
the
said
3400
l.
was
a
Personal
Estate
,
or
a
Chose
en
Action
,
belonging
to
the
said
Dame
Katherine
,
and
so
belongs
to
the
Plaintiff
as
her
Administrator
:
But
the
Defendant
,
the
Trustees
and
the
Heir
insist
,
That
the
said
Mony
belongs
to
the
Heir
,
the
said
Dame
Katherine
making
no
Appointment
thereof
.
This
Court
declared
,
That
the
Matter
in
demand
was
originally
a
Mortgage
,
and
if
it
had
not
been
Redeemed
in
the
Ladies
life
time
,
it
would
have
gone
to
her
Administrator
,
and
the
Lady
having
made
no
Appointment
other
than
the
said
Deed
as
to
the
1400
l.
and
having
only
appointed
,
that
the
2000
l.
should
go
as
the
Rent
charge
of
200
l.
per
Annum
by
Sir
John
Trotts
Will
should
have
gone
,
which
being
once
a
Personal
Chattel
and
not
descendible
,
the
operation
of
Law
could
not
be
controlled
,
but
that
it
ought
(
being
a
Personal
Estate
)
to
go
according
to
the
course
of
Law
to
the
Plaintiff
,
he
being
Administrator
,
the
rather
for
that
the
Heir
is
amply
provided
for
,
otherwise
his
Lordship
declaring
,
that
the
Lady
Stewkley
not
having
made
an
Appointment
it
ought
to
be
taken
for
her
Intention
,
that
the
Plaintiff
should
have
the
Mony
,
and
therefore
decreed
the
Defendants
,
the
Trustees
,
to
convey
to
the
Plaintiff
and
deliver
to
him
1400
l.
and
the
Securities
for
the
2000
l.
Green
contra
Rooke
,
31
Car.
2.
fo.
351.
THat
Lawrence
Rooke
,
Devise
.
Father
to
the
Defendant
Heyman
Rooke
and
to
the
Plaintiff
Mary
,
being
seised
in
Fee
or
Fee-tail
,
or
other
Estate
of
Lands
,
by
Deed
of
the
26th
of
August
1650.
granted
the
premisses
to
Edward
Scot
and
others
for
80
years
,
if
he
so
long
lived
,
and
afterwards
conveyed
the
sameon
the
27th
of
the
same
Month
unto
Sir
Henry
Heyman
and
Peter
Heyman
,
and
their
Heirs
,
for
the
term
of
his
life
,
and
by
Deed
the
20th
of
October
then
next
following
,
and
by
a
Recovery
in
pursuance
thereof
the
said
premisses
were
setled
on
the
said
Sir
Henry
and
Peter
Heyman
and
their
Heirs
,
for
the
life
of
the
said
Lawrence
,
Remainder
as
to
part
to
the
use
of
Barbary
,
Wife
of
the
said
Lawrence
for
her
life
,
for
a
Joynture
,
and
after
as
to
part
to
the
said
Sir
Henry
and
Peter
Heyman
for
99
years
in
Trust
,
to
raise
1000
l.
for
the
portion
of
the
eldest
Daughter
of
the
said
Lawrence
,
and
then
to
the
use
of
the
first
Son
of
the
said
Lawrence
in
Tail
Male
,
with
the
Remainder
over
:
That
the
said
Lawrence
and
Barbara
are
dead
,
and
the
Defendant
Heyman
Rooke
is
his
first
Son
,
and
the
Plaintiff
Mary
is
his
eldest
Daughter
,
and
the
Portion
of
1000
l.
is
due
to
her
,
and
the
same
being
unpaid
,
Peter
Heyman
the
surviving
Trustee
assigned
the
term
of
99
years
to
the
Plaintiff
Greene
,
to
enable
him
to
raise
the
Mony
;
and
the
Defendant
Heyman
Rooke
hath
mortgaged
the
same
premisses
to
the
other
Defendants
;
so
the
Question
is
,
Who
hath
the
right
or
equity
of
Redemption
,
and
the
Bill
is
also
to
have
the
Plaintiff
Maries
Portion
paid
,
or
the
equity
of
Redemption
foreclosed
.
The
Defendant
Heyman
Rooke
by
Plea
insisted
,
That
George
Rooke
his
Grandfather
by
Will
in
1647.
devised
the
premisses
unto
Lawrence
Rooke
his
eldest
Son
,
and
Father
to
the
Defendant
Heyman
Rooke
for
life
only
,
Remainder
to
the
first
,
second
,
third
and
fourth
Sons
of
the
said
Lawrence
in
Tail
,
Remainder
to
John
Browne
and
others
for
their
lives
in
Trust
,
for
the
better
securing
and
preservation
of
the
several
Remainders
limited
unto
the
several
Sons
of
the
said
Lawrence
Rooke
with
Remainders
over
:
That
the
said
George
Rooke
died
without
revoking
or
altering
the
said
uses
limited
in
his
Will
,
and
so
Lawrence
Rooke
could
not
by
the
said
Deeds
or
Recovery
bar
or
cut
off
the
Remainder
limited
in
and
by
the
said
Will
,
in
regard
the
said
Browne
,
and
the
other
Trustees
,
for
preserving
of
the
contingent
Remainders
were
living
since
1650.
in
which
year
the
term
of
99
years
was
created
.
This
Court
declared
,
Devise
to
Father
for
life
,
Remainder
to
the
first
Son
,
&c.
Remainder
to
Trustees
for
99
years
to
support
the
Remainders
,
it
s
a
good
term
to
support
the
Remainders
,
notwithstanding
the
same
is
limited
and
inserted
after
the
limitation
to
the
first
Son
(
it
being
in
the
case
of
a
Will
.
)
That
the
term
limited
to
the
Trustees
in
the
Will
for
their
Lives
,
for
the
preservation
of
the
contingent
Remainders
to
the
several
Sons
of
the
said
Lawrence
Rooke
was
a
good
Term
,
and
a
State
to
support
the
said
contingent
Remainders
,
notwithstanding
the
same
is
limited
to
the
said
Trustees
,
and
inserted
in
the
said
Will
,
after
the
limitation
to
the
first
and
other
Sons
of
Lawrence
Rooke
in
Tail
Male
,
for
the
same
being
in
the
Will
,
and
the
intent
of
the
Testator
plainly
appearing
so
in
the
Will
,
they
held
the
said
Plea
and
Demurrer
to
be
good
,
and
so
dismist
the
Plaintiffs
Bill
.
Trethervy
contra
Hoblin
,
26
Car.
2.
fo.
114.
THe
Plaintiff
being
a
Purchaser
of
the
premisses
,
Bill
to
discover
a
Title
.
calls
the
Defendant
to
discover
his
Title
,
who
insists
on
a
long
Lease
of
a
1000
years
,
which
was
found
by
Verdict
for
the
Defendant
.
And
the
Defendant
insists
for
Cost
,
Costs
.
for
that
the
Plaintiffs
Suit
in
this
Court
was
causlesly
and
vexatiously
brought
by
the
Plaintiff
.
The
Plaintiff
insists
,
〈◊〉
That
he
being
not
able
to
try
the
validity
of
the
said
Lease
at
Law
,
during
the
life
of
Oliver
one
of
the
Defendant
.
This
Court
is
satisfied
,
Suit
for
discovery
,
and
to
preserve
Testimonies
and
the
Plaintiff
to
pay
no
Costs
.
that
the
Plaintiff
had
good
ground
to
bring
this
Suit
for
a
discovery
and
relief
,
and
to
preserve
the
testimony
of
his
Witnesses
,
it
falling
out
to
be
a
severe
Case
upon
the
Plaintiff
,
so
no
reason
for
the
Plaintiff
to
pay
any
Cost
either
at
Law
,
or
in
this
Court
.
Boughton
contra
Butter
,
32
Car.
2.
fo.
379.
THis
Cause
was
referred
to
Sergeant
Rainsford
,
to
certifie
touching
the
Inclosure
,
whether
advantagious
,
and
whether
the
Parties
had
consented
thereunto
,
who
had
drawn
up
a
Certificate
,
Certificate
ordered
to
to
be
filed
,
though
not
delivered
in
the
life
of
the
Certifier
.
all
written
with
his
own
Hand
,
but
he
dying
before
he
had
declared
the
same
.
It
was
prayed
by
the
Plaintiff
,
that
the
said
Certificate
might
be
filed
,
and
taken
to
be
authentick
,
as
if
he
had
delivered
the
same
to
either
party
.
The
Defendant
insisted
,
That
the
said
Certificate
had
no
date
,
and
that
the
Sergeant
never
intended
to
deliver
the
same
.
This
Court
Ordered
the
said
Certificate
to
be
filed
,
notwithstanding
the
Objections
made
thereto
by
the
Defendant
.
Tucker
contra
Searle
,
31
Car.
2.
fo.
423.
THat
John
Bassano
,
the
Plaintiff
Frances
Father
,
by
deed
,
20
July
1640.
Marriage
Settlement
.
in
consideration
of
a
Marriage
between
him
and
Elizabeth
,
the
Plaintiff
Frances
Mother
,
and
a
Marriage
Portion
,
Covenanted
to
stand
seized
of
Lands
to
the
use
of
the
said
John
and
Elizabeth
,
for
their
lives
,
and
after
to
the
first
Son
of
the
said
John
and
Elizabeth
,
and
so
to
the
second
third
and
other
Sons
,
and
the
Heirs
of
their
Bodies
,
remainder
to
the
right
Heirs
of
the
said
John
Bassano
the
Elder
for
ever
,
on
Condition
and
Limitation
,
that
if
the
said
John
Bassano
,
should
have
Issue
Female
,
and
not
Issue
Male
by
Elizabeth
,
then
his
Right
Heirs
to
pay
the
first
and
second
Daughters
of
the
said
John
by
the
said
Elizabeth
300
l.
a
piece
,
to
be
chargeable
on
the
said
Lands
,
and
if
more
than
two
Daghters
,
then
the
said
Lands
for
the
full
value
of
them
to
be
sold
,
should
equally
be
divided
amongst
such
Daughters
;
that
the
said
Bassano
had
no
Issue
Male
by
Elizabeth
,
but
had
Issue
Female
(
viz.
)
Elizabeth
their
Eldest
Daughter
,
the
Plaintiff
Frances
their
Second
,
and
another
Elizabeth
their
youngest
,
that
Elizabeth
the
Eldest
died
in
the
life
of
her
Father
and
Mother
,
and
that
at
the
death
of
John
the
Father
,
there
being
only
the
Plaintiff
Frances
living
,
but
the
said
Elizabeth
the
Mother
being
ensient
with
Elizabeth
the
youngest
Daughter
of
the
said
John
Bassano
,
by
Will
(
John
Bassano
taking
notice
of
the
aforesaid
deed
)
provides
,
that
in
case
Elizabeth
his
Wife
were
with
Child
of
a
Son
,
then
his
Executors
to
pay
to
the
Plaintiff
Frances
300
l.
but
if
a
Daughter
,
then
he
had
otherwise
provided
for
the
Plaintiff
Frances
,
and
such
Daughter
by
deed
,
and
shortly
after
dyed
,
leaving
John
Bassano
,
his
Son
and
Heir
by
a
former
Venter
,
and
shortly
after
the
said
Elizabeth
the
youngest
Daughter
was
Born
,
and
died
in
a
Month
after
,
and
in
1666.
Elizabeth
the
Mother
dyed
,
leaving
the
Plaintiff
Frances
,
whereupon
John
Bassano
the
younger
,
took
the
Plaintiff
Frances
in
Guardianship
,
and
having
the
said
Will
and
Deed
in
his
Custody
,
pretended
to
her
,
she
had
but
300
l.
Portion
left
her
by
her
Father
.
That
in
1669.
the
Plaintiff
Tucker
and
the
Plaintiff
Frances
inter-married
,
and
John
Bassano
still
concealed
the
said
Will
and
Deed
;
that
the
Plaintiff
Tucker
,
and
John
Bassano
the
younger
agreed
,
that
the
300
l.
left
to
the
Plaintiff
Frances
by
her
Father
,
should
be
laid
out
on
Security
or
Purchase
,
for
the
benefit
of
the
Plaintiff
Frances
for
life
,
in
case
she
survived
the
Plaintiff
Tucker
,
and
accordingly
the
Plaintiff
Tucker
Sealed
a
Deed
10th
of
December
1669.
whereby
the
Plaintiff
released
the
said
300
l.
to
the
said
Bassano
the
younger
,
upon
Trust
,
and
the
said
Bassano
Covenants
with
the
Plaintiff
,
that
he
his
Executors
or
Administrators
,
should
either
continue
the
said
300
l.
in
his
or
their
Hands
at
Interest
,
or
lay
out
and
dispose
of
the
same
upon
Security
or
Purchase
,
and
permit
the
Plaintiff
Tucker
during
his
life
,
and
the
Plaintiff
Frances
during
her
life
,
to
receive
the
Interest
and
Benefit
thereof
,
and
to
the
Plaintiff
Tucker
and
his
Heirs
,
Executors
,
&c.
That
in
1671.
Bassano
the
younger
died
,
and
made
the
Defendant
Searle
his
Executor
,
and
the
said
Searle
refused
to
pay
the
said
300
l.
pretending
the
want
of
Assets
.
And
the
Plaintiff
Tucker
insists
,
to
have
the
said
300
l
and
interest
to
be
chargeable
out
of
the
Walthamstow
Lands
,
in
regard
the
said
Lands
were
originally
charged
therewith
;
but
the
Defendant
the
Executor
says
,
the
said
Lands
are
sold
by
him
to
one
Woots
,
and
the
Plaintiff
Tucker
insists
,
that
such
Sale
was
without
notice
of
the
Plaintiffs
Title
,
and
charge
of
the
said
300
l.
on
the
said
Lands
,
and
that
Woots
had
Collateral
Security
to
secure
him
against
the
Plaintiff
,
wherefore
in
regard
the
said
Lands
were
Originally
charged
with
300
l.
and
the
Plaintiffs
were
drawn
in
,
to
accept
of
the
said
Covenant
,
which
is
but
a
personal
Security
by
the
contrivance
of
Bassano
the
younger
,
who
kept
the
Plaintiff
ignorant
of
the
said
Deed
and
Will
,
for
that
the
Plaintiffs
Release
is
only
upon
Trust
for
payment
of
the
said
300
l.
the
Plaintiffs
do
insist
,
that
in
equity
the
said
Lands
ought
still
to
be
chargeable
with
the
said
300
l.
and
interest
,
and
ought
not
to
rely
on
the
said
Covenant
.
The
Defendant
Searle
insists
,
that
Bassano
Junior
by
his
Will
devised
the
Walthamstow
Lands
to
be
Sold
for
payment
of
his
Debts
and
Legacies
,
which
was
Sold
to
Woots
as
aforesaid
,
for
1260
l.
and
gave
him
Collateral
Security
,
by
Bond
of
1500
l.
to
secure
him
against
the
Plaintiffs
demands
,
and
that
the
whole
Personal
Estate
of
the
said
Bassano
Junior
,
by
Sale
of
Lands
and
otherwise
,
fell
short
to
pay
the
Plaintiffs
demands
,
the
said
Searle
the
Executor
,
having
paid
Debts
of
a
higher
nature
,
and
say
that
the
Plaintiff
cannot
have
their
whole
demands
,
but
must
come
in
proportion
with
other
Creditors
.
And
the
Defendant
insists
,
That
the
Walthamstow
Lands
,
ought
not
to
be
charged
with
the
said
300
l.
for
that
on
a
Bill
in
this
Court
,
exhibited
by
the
Plaintiff
against
Bassano
Senior
,
whereby
the
Portions
of
the
two
Elizabeths
Sisters
of
the
Plaintiff
Frances
,
were
demanded
to
be
chargeable
on
Walthamstow
Lands
,
and
alledged
,
that
Bassano
Junior
,
had
secured
the
300
l.
being
the
Plaintiff
Frances
Portion
,
by
the
said
deed
of
Covenant
,
and
prayed
to
have
the
said
two
Elizabeth's
Portions
,
or
the
value
of
the
Lands
,
deducting
the
300
l.
secured
to
the
Plaintiff
Frances
;
and
in
October
25.
Car.
2.
it
was
decreed
,
that
the
Plaintiff
should
have
the
300
l.
which
belonged
to
the
youngest
Elizabeth
,
and
the
said
Lands
to
be
chargeable
therewith
.
But
the
Court
then
declared
,
they
could
not
decree
the
300
l.
claimed
by
the
said
Plaintiff
Frances
in
her
own
right
,
but
that
she
must
rely
on
the
said
Deed
of
Covenant
,
Defect
in
a
Bill
.
for
that
they
did
not
complain
thereof
by
their
Bill
:
And
the
Defendant
insists
,
that
the
said
decree
being
Signed
and
Inrolled
,
the
said
300
l.
ought
not
to
be
charged
on
the
said
Lands
,
but
that
they
ought
to
rely
on
the
said
deed
of
Covenant
,
they
having
thereby
released
the
said
Lands
.
That
the
Defendant
Searles
cross
Bill
,
is
for
relief
against
a
Bond
of
600
l.
on
which
he
is
Sued
at
Law
,
and
for
Equity
did
insist
,
Cross
Bill
for
Creditors
,
to
take
their
proportionable
shares
,
but
the
debts
having
been
paid
to
them
and
releases
given
dismist
.
That
he
was
Sued
here
by
the
Plaintiff
Tucker
and
his
Wife
,
for
the
300
l.
aforesaid
,
and
that
there
was
a
decree
against
him
in
this
Court
,
at
the
Suit
of
one
Whitton
,
one
of
the
Defendants
to
that
Bill
for
700
l.
so
that
if
the
Plaintiff
Tucker
,
and
other
Creditors
should
recover
their
demands
,
there
will
not
be
Assets
,
and
therefore
prayed
,
that
the
Plaintiff
Tucker
and
Callwall
,
might
take
their
proportionable
shares
of
what
Assets
was
left
,
but
the
Plaintiff
Tucker
insisted
,
that
the
said
300
l.
was
originally
charged
on
Walthamstow
Lands
by
the
said
Marriage
Settlement
,
and
was
not
discharged
by
the
said
Covenant
or
Release
.
The
said
other
Creditors
,
Callwall
,
&c.
insists
,
That
they
have
a
Verdict
against
Searle
the
Executor
,
for
the
Money
due
on
the
said
Bond
,
upon
Evidence
of
Assets
in
Hands
,
and
had
taken
him
in
Execution
,
and
he
had
paid
the
said
Money
thereon
,
and
the
said
Creditors
had
released
the
said
debts
,
and
therefore
ought
not
to
be
farther
troubled
for
the
same
.
This
Court
declared
,
Lands
originally
charged
with
the
payment
of
Portion
,
and
a
release
and
covenant
in
Trust
doth
not
discharge
the
same
.
the
said
Walthamstow
Lands
were
originally
charged
with
the
Plaintiffs
300
l.
and
that
the
said
deed
of
Release
and
Covenant
being
made
only
in
Trust
for
payment
of
the
said
Money
,
and
when
the
Plaintiffs
were
not
told
of
the
said
Deed
and
Will
,
did
not
discharge
the
same
,
but
the
said
Lands
ought
to
make
it
good
without
damages
,
although
there
were
not
Assets
in
the
Executors
Hands
,
in
regard
the
said
Lands
were
sold
under
notice
of
the
Plaintiffs
demands
;
and
further
declared
,
he
could
not
relieve
the
said
Searle
,
as
against
the
said
Callwall
,
for
that
he
by
Coertion
of
Law
had
paid
the
Money
recovered
against
him
,
and
the
said
Callwall
had
released
the
same
to
him
,
and
dismist
Searles
Bill
.
Annand
contra
Honywood
,
32
Car.
2.
fo.
430.
THe
Bill
is
to
have
a
discovery
of
the
Estate
of
Bennony
Honywood
.
The
Custom
of
London
for
Orphanage
part
.
the
Plaintiff
Sarahs
Father
,
whereby
the
Plaintiff
Annand
in
right
of
his
Wife
,
might
have
an
equal
divident
thereof
according
to
the
Custom
of
Lond.
on
the
said
Bennony
Honywood
,
being
a
Freeman
of
the
said
City
,
who
having
only
two
Children
,
the
Plaintiff
Sarah
by
his
first
Wife
,
and
the
Defendant
John
by
his
second
Wife
,
he
married
the
Plaintiff
Sarah
to
one
Brown
in
1657
,
and
gave
her
but
a
small
matter
at
present
,
saying
,
That
when
he
died
she
should
come
in
for
a
customary
part
of
his
Estate
,
and
9
years
after
the
said
Marriage
,
made
his
Will
in
1660.
and
thereby
devised
all
his
Personal
Estate
,
to
be
divided
into
three
equal
parts
,
according
to
the
Custom
of
London
(
viz.
)
one
to
his
Wife
,
and
another
between
the
Plaintiff
Sarah
,
and
the
Defendant
her
half
Brother
,
and
thereby
declared
,
that
what
the
Plaintiff
Sarah
had
in
Marriage
with
the
said
Brown
,
should
be
accounted
as
part
of
her
share
of
that
third
part
,
and
out
of
the
other
third
part
,
which
he
had
power
in
himself
to
dispose
of
,
and
thereby
declared
to
be
only
reserved
to
himself
,
he
appointed
his
Executor
,
which
was
his
Wife
and
the
now
Defendant
,
to
pay
to
the
Plaintiff
Sarah
for
her
support
for
her
life
,
and
to
be
in
no
part
of
her
Husband
Browns
Estate
,
and
30
l.
per
Annum
,
and
300
l.
in
Money
.
That
the
Plaintiff
Sarahs
Husband
died
in
1670
,
and
she
in
1672.
with
the
Testators
consent
,
Married
the
Plaintiff
Annand
,
and
in
1678.
the
Testator
died
,
and
the
Testators
Wife
died
before
,
so
the
Plaintiff
became
intituled
to
a
full
Childs
part
and
share
of
the
Personal
Estate
,
being
10000
l.
The
Defendant
insists
,
That
the
Testator
did
on
the
Plaintiff
Sarahs
first
Marriage
,
give
her
a
considerable
Marriage
portion
in
present
,
and
promised
to
leave
her
200
l.
more
at
his
death
,
which
was
to
be
her
full
advancement
,
and
did
not
intend
she
should
come
in
for
her
customary
share
;
and
insists
,
That
in
1675.
the
Testator
made
his
last
Will
,
and
thereby
gave
the
Plaintiff
Sarah
a
Legacy
,
and
Legacies
to
her
Children
,
reciting
,
That
he
had
already
advanced
her
at
her
first
Marriage
,
and
that
he
had
then
promised
to
leave
her
200
l.
more
at
his
death
,
and
that
the
Legacies
were
given
to
the
Plaintiff
Sarah
,
in
full
of
all
such
share
and
claim
,
as
she
might
after
his
death
have
right
to
,
or
claim
in
any
of
his
Estate
,
by
virtue
of
the
Custom
of
London
,
or
otherwise
;
and
insists
,
That
the
Plaintiff
by
the
said
Advancement
on
her
first
Marriage
,
her
Father
the
Testator
,
having
not
declared
his
Will
or
other
Writing
under
his
Hand
,
that
she
was
not
fully
Advanced
,
but
declared
the
contrary
by
the
last
Will
,
she
is
thereby
barred
and
excluded
,
by
the
Custom
of
London
,
from
any
other
claim
out
of
his
Estate
,
then
what
is
bequeathed
by
the
last
Will
,
being
500
l.
which
the
Defendant
will
pay
,
she
giving
a
general
Release
,
which
said
last
Will
,
provides
she
shall
do
.
The
Plaintiffs
Councel
insists
,
That
the
said
Declaration
in
the
Will
of
1666.
was
the
Testators
first
Declaration
of
his
intent
,
upon
the
marriage
of
the
said
Sarah
,
and
that
it
was
,
being
still
under
his
Hand
in
writing
,
as
sufficient
,
and
vallid
,
as
if
it
had
been
any
other
writing
,
and
that
it
was
produced
not
as
a
Will
,
but
as
an
Evidence
,
and
is
still
a
writing
under
the
Testators
Hand
,
declaring
,
That
his
first
Wives
Daughter
the
Plaintiff
Sarah
,
was
by
him
but
partly
Advanced
,
and
that
she
was
by
the
Custom
of
London
,
to
have
an
equal
Childs
part
of
his
Personal
Estate
,
with
his
second
Wives
Son
,
and
then
,
that
he
could
never
by
a
Subsequent
Will
,
oblige
her
to
500
l.
Legacy
in
full
,
of
all
that
is
due
to
her
by
the
Custom
of
London
,
without
her
consent
,
and
the
words
of
the
last
Will
,
by
forbidding
the
Plaintiff
Sarah
to
Sue
for
the
Customary
part
of
his
Estate
,
or
upon
the
account
of
not
being
fully
Advanced
,
do
strongly
imply
the
intent
at
the
marriage
was
,
that
what
his
said
Daughter
had
in
marriage
,
was
but
part
of
her
Advancement
.
The
Defendants
insist
,
That
by
the
Custom
of
London
,
a
Declaration
to
let
in
a
Child
for
a
Customary
part
,
ought
to
be
by
the
Testators
last
Will
,
or
by
some
other
writing
under
Hand
,
remaining
in
force
,
and
unrevoked
,
and
that
it
ought
to
be
an
express
Declaration
,
which
the
Will
in
1666.
is
not
,
and
the
Testator
declared
by
his
last
Will
,
that
the
Plaintiff
Sarah
was
already
Advanced
upon
her
first
marriage
,
and
that
the
Testator
promising
,
to
leave
her
200
l.
more
at
his
death
,
implies
,
that
it
was
agreed
,
that
she
should
have
no
more
,
and
the
Will
in
1666.
is
Revoked
and
Cancelled
,
and
the
Testators
hand
remains
only
to
the
middle-most
sheet
thereof
.
This
Court
declared
,
they
would
be
Certified
by
the
Recorder
of
London
,
whether
a
Declaration
by
a
Will
Revoked
,
be
such
a
Declaration
in
writing
,
to
let
a
Child
have
a
Customary
part
of
her
Fathers
Estate
.
The
Lord
Mayor
and
Aldermen
,
By
the
Custom
of
London
,
a
Declaration
made
by
a
Freeman
by
writing
tho'
such
writing
were
made
for
his
last
Will
,
and
Revoked
,
is
such
a
Declaration
as
will
let
in
his
Child
to
have
a
Customary
part
of
his
Personal
Estate
.
by
the
Recorder
,
Certified
this
Court
,
That
by
the
Custom
of
the
said
City
,
a
Declaration
made
by
a
Citizen
and
Freeman
of
the
said
City
by
writing
,
with
his
Name
or
Mark
,
Subscribed
thereto
,
though
such
writing
were
made
for
his
last
Will
and
Testament
,
and
the
same
afterwards
by
him
Revoked
,
is
such
a
Declaration
as
will
let
in
a
Child
of
such
a
Freeman
to
have
his
or
her
Customary
part
of
his
or
her
Fathers
Personal
Estate
.
The
Defendant
insists
,
That
the
Lord
Mayor
,
&c.
were
Surprized
in
making
the
Certificate
,
they
conceiving
themselves
streightned
in
the
words
and
directions
of
the
Order
;
for
that
although
the
Will
of
1666.
had
never
been
revoked
,
yet
the
same
had
never
been
a
sufficient
Declaration
,
according
to
the
Custom
,
to
let
in
the
Plaintiff
to
have
a
Customary
part
,
and
they
by
the
Order
being
restrained
to
certifie
,
whether
a
revoked
Will
were
a
good
Declaration
;
they
did
apprehend
they
were
to
take
it
,
That
the
Testator
had
by
his
Will
of
66.
made
a
sufficient
Declaration
,
according
to
the
Custom
,
to
let
in
the
Plaintiff
,
which
he
hath
not
done
;
for
the
Custom
of
London
in
this
case
is
.
That
the
Sum
certain
that
any
Child
had
in
part
of
such
Advancement
,
ought
to
be
expressed
in
such
Writing
or
Declaration
,
or
else
the
same
is
not
of
any
avail
;
and
produced
Presidents
for
that
purpose
,
that
the
same
ought
to
be
mentioned
to
the
end
,
that
in
case
such
Child
should
be
admitted
to
such
Customary
part
it
may
be
known
what
the
Sum
is
,
to
the
end
it
may
be
brought
into
Hotch-potch
with
the
rest
of
the
Estate
to
the
Testator
.
Whereto
the
Plaintiff
insisted
,
That
the
Custom
of
a
Sum
certain
to
be
mentioned
appeared
only
by
a
By-Law
called
Judd's
Law
,
in
5
Ed.
6.
the
which
is
no
estabiished
Law
in
the
City
to
bind
the
Right
of
any
,
and
there
is
a
great
difference
in
the
By
Laws
in
the
City
,
which
ought
to
respect
their
Government
,
and
not
bind
the
Right
of
any
person
which
is
governed
by
the
general
Custom
of
the
City
,
and
which
is
paramount
to
any
of
their
By-laws
,
and
by
the
Custom
the
Right
of
a
Freemans
Child
is
as
much
preserved
to
him
as
any
mans
Right
by
the
Common
Law
of
the
Kingdom
,
besides
the
naming
of
the
Sum
,
is
no
more
than
in
order
to
the
setling
the
Accounts
of
the
said
Estate
,
which
may
be
done
before
a
Master
in
this
Court
.
This
Coutt
upon
Reading
several
Presidents
on
both
sides
,
declared
,
That
the
said
Certificate
was
conclusive
,
and
that
the
Plaintiff
must
be
let
in
for
a
Customary
part
of
her
Fathers
Personal
Estate
,
and
decreed
the
same
accordingly
.
The
Defendant
was
ordered
to
Account
for
all
the
Personal
Estate
of
Bennony
Honywood
,
Fo.
598.
and
the
Plaintiff
thereout
to
have
her
Customary
part
,
her
Marriage
Portion
being
brought
into
Hotch
potch
with
the
rest
of
the
Personal
Estate
,
and
the
Plaintiff
to
discover
the
said
Portion
on
Oath
,
and
the
Defendant
to
do
the
like
as
to
what
provision
he
had
.
The
Defendant
insists
,
What
provision
he
had
was
Mony
deposited
by
his
said
Father
in
the
hands
of
Mr.
Colvile
and
others
,
to
purchase
Lands
or
Houses
in
or
near
London
,
in
pursuance
of
Articles
between
the
Defendants
said
Father
and
the
Defendants
Wives
Father
,
which
were
made
before
the
Marriage
of
the
Defendants
,
which
Lands
and
Houses
so
to
be
purchased
is
by
the
said
Articles
covenanted
to
be
setled
on
the
Defendant
and
his
Wife
for
life
,
and
for
her
Joynture
Remainder
in
Tail
,
and
was
in
consideration
of
the
Defendants
wives
Portion
,
and
Houses
were
purchased
therewith
in
Bennony's
life
,
and
the
Defendant
is
his
Son
and
Heir
.
And
the
Defendant
insists
,
What
Mony
is
deposited
by
the
Father
to
purchase
Lands
in
pursuance
of
Marriage
Articles
,
is
to
be
taken
as
Real
,
and
not
as
a
Personal
Estate
,
and
shall
not
be
brought
into
Hotch-potch
.
That
what
was
so
deposited
as
aforesaid
,
is
to
be
taken
as
if
the
Defendants
Father
himself
had
purchased
Lands
and
setled
the
same
to
the
uses
aforefaid
,
and
ought
not
to
be
accounted
a
personal
Estate
of
the
Defendants
Father
,
but
as
Land
.
This
Court
declared
what
was
deposited
by
the
Defendants
Father
to
purchase
Lands
in
pursuance
of
the
said
Articles
,
is
to
be
taken
as
Lands
,
and
not
as
personal
Estate
of
the
Defendants
said
Father
;
and
also
declared
what
was
deposited
as
aforesaid
,
shall
not
be
brought
into
Hotch-potch
,
but
the
Defendant
is
to
discover
what
he
had
from
his
Father
upon
his
said
Marriage
.
Prigg
contra
Clay
,
32
Car.
2.
fo.
198.
THat
John
Clay
by
his
Will
devised
100
l.
Will
.
to
the
Plaintiff
Philip
Prigg
Jun.
and
Deborah
Prigg
his
Sister
,
in
manner
(
viz.
)
50
l.
to
the
said
Philip
at
his
Age
of
21
years
,
on
day
of
Marriage
,
which
should
first
happen
by
the
Defendants
his
Executors
,
and
in
the
mean
time
the
whole
100
l.
to
be
secured
and
improved
by
his
Executors
for
their
use
;
and
in
case
either
the
said
Philip
or
Deborah
should
die
before
payment
of
their
Legacies
,
the
Survivor
to
enjoy
the
whole
100
l.
and
if
both
die
before
payment
of
their
said
Legacies
,
then
the
Testator
decreed
the
whole
100
l.
to
his
Sister
the
Plaintiff
Elinor
their
Mother
,
besides
100
l.
to
her
to
be
paid
within
6
Months
after
his
death
.
That
the
said
Deborah
Prigg
died
unmarried
and
before
21
,
and
before
she
had
received
the
50
l.
Legacy
,
so
that
the
whole
100
l.
became
due
to
the
Plaintiff
Philip
Junior
.
The
Defendants
insists
,
That
Deborah
died
before
the
Testator
,
and
her
Legacy
of
50
l.
became
void
.
This
Court
was
sully
satisfied
,
Legacies
of
50
l.
apiece
given
to
two
,
and
if
either
die
before
21
,
the
Survivor
to
have
all
.
One
dies
before
the
Testator
,
yet
the
Survivor
decreed
to
have
all
.
though
Deborah
died
before
the
Testator
;
yet
the
said
Devise
of
50
l.
to
her
did
not
become
void
,
and
being
devised
over
to
her
Brother
Philip
the
surviving
Legatee
,
it
belonged
to
him
,
according
to
the
devise
in
the
Will
,
the
rather
for
that
it
being
a
contingent
Remainder
,
and
might
vest
after
the
death
of
the
Testator
so
long
as
there
was
a
Survivor
it
did
not
belong
to
the
Executors
,
and
for
that
the
Testator
,
who
lived
for
some
time
afterwards
,
did
not
alter
the
devise
thereof
by
his
Will
,
nor
otherwise
dispose
thereof
in
Writing
,
and
decreed
the
Defendants
to
pay
the
Plaintiff
the
two
50
Pounds
:
This
Order
was
confirmed
by
the
Lord
Keeper
.
Sanders
contra
Earle
,
32
Car.
2.
fo.
102.
THat
the
Plaintiffs
late
Husband
Daniel
Earle
,
Will
.
or
some
in
Trust
for
him
,
was
at
his
death
seised
in
Fee
,
and
also
intituled
to
the
Trust
of
a
long
Term
of
the
Mannor
upon
a
Sore
and
Lands
in
Com'
Nottingham
,
which
said
long
Term
was
in
being
and
subject
to
be
disposed
as
she
should
appoint
,
so
that
he
had
full
power
to
settle
,
devise
or
charge
the
same
by
his
Will
,
and
the
said
Daniel
in
consideration
of
a
Marriage
with
the
Plaintiff
and
2000
l.
Portion
,
he
in
1676.
by
Will
devised
to
the
Plaintiff
,
besides
a
Joynture
of
1200
l.
and
if
she
were
with
Child
of
a
Son
,
he
gave
all
his
Lands
and
Tenements
to
such
Son
in
Tail
;
but
for
default
of
such
,
he
gave
them
to
the
Defendants
his
Brother
and
their
Heirs
,
and
if
he
had
a
Daughter
,
he
devised
to
such
Daughter
500
l.
to
be
paid
when
she
attained
her
Age
of
Sixteen
,
and
the
same
to
be
secured
out
of
his
Lands
aforesaid
,
and
made
his
said
Brothers
Executors
:
That
the
Plaintiff
had
no
Son
,
but
a
Daughter
,
who
lived
some
time
and
is
since
dead
,
and
the
Plaintiff
is
her
Administratrix
,
whereby
she
is
intituled
to
her
500
l.
presently
.
The
Defendant
insists
,
That
the
Plaintiffs
said
Husband
devised
to
the
Plaintiff
1200
l.
and
devised
to
her
all
her
Plate
,
Jewels
and
Goods
,
and
Stock
in
and
about
the
House
at
Normanton
,
and
made
the
Plaintiff
Executrix
till
the
last
day
of
August
after
the
Will
,
and
if
she
(
who
was
then
with
Child
)
had
a
Son
by
that
time
,
then
she
to
continue
Executrix
,
otherwise
the
Defendants
to
be
joynt
Executors
,
and
made
such
devise
to
the
Daughter
,
and
the
rest
of
his
personal
Estate
he
devised
to
his
Executrix
or
Executors
:
That
the
Plaintiff
Margaret
having
but
a
Daughter
,
the
Defendants
proved
the
Will
,
and
are
intituled
to
the
Legacies
therein
to
them
devised
,
and
the
refidue
of
the
personal
Estate
;
and
insists
,
That
if
the
Plaintiff
,
as
Administratrix
to
her
Daughter
,
be
intituled
to
the
500
l.
yet
she
is
not
to
receive
it
till
such
time
as
it
is
payable
to
the
Child
,
if
it
had
not
died
;
neither
is
the
Plaintiff
intituled
to
any
of
the
ready
Mony
in
the
House
of
Normanton
,
which
was
407
l.
by
any
general
Words
in
the
Will.
But
the
Plaintiffs
insist
,
That
by
the
general
Words
in
the
Will
,
[
I
devise
all
my
Goods
,
Chattels
and
Housholdstuff
in
and
about
my
House
at
Normanton
]
will
carry
the
said
407
l.
to
the
Wife
as
a
particular
Legacy
,
and
it
ought
not
to
be
brought
into
the
Account
of
the
personal
Estate
.
This
Court
declared
,
By
the
general
words
in
a
Will
,
[
I
devise
all
my
Goods
,
Chattels
and
Houshold-stuff
in
and
about
my
House
,
to
,
&c.
]
470
l.
ready
Monies
in
the
House
shall
not
pass
to
the
Devisee
,
she
having
had
a
particular
Legacy
of
1200
l.
devised
to
her
by
the
said
Will
.
That
as
to
the
407
l.
though
the
Words
were
general
,
yet
considering
the
Intention
of
the
Testator
,
who
by
his
said
Will
having
before
given
to
the
Plaintiff
Margaret
a
Legacy
of
1200
l.
if
that
he
had
intended
to
have
given
her
407
l.
over
and
above
the
1200
l.
he
might
in
the
same
place
of
the
Will
have
given
her
1600
l.
as
well
as
1200
l.
and
therefore
conceived
that
the
Plaintiff
ought
not
to
have
the
407
l.
but
this
same
ought
to
come
in
to
the
Account
of
the
Personal
Estate
,
and
decreed
the
same
accordingly
;
and
as
to
the
500
l.
claimed
by
the
Plaintiff
,
as
Administratrix
to
her
said
Daughter
,
whether
the
same
ought
to
be
paid
presently
or
not
,
till
such
time
as
the
said
Daughter
might
have
come
to
the
Age
of
16
years
,
if
she
had
lived
,
being
the
next
Question
.
This
Court
declared
and
decreed
,
Legacy
to
be
paid
at
16
years
of
Age.
Legatee
dies
before
;
her
Administratrix
shall
not
receive
it
till
the
16
years
end
.
That
the
same
shall
not
be
paid
until
such
time
as
the
said
Daughter
might
have
attained
her
Age
of
16
years
,
if
she
had
lived
,
but
the
same
to
stand
charged
on
the
Estate
,
subject
to
the
Sum
by
the
Will
unto
that
time
,
and
then
the
Sum
to
be
paid
to
the
Plaintiff
,
her
Executors
,
Administrators
,
or
Assigns
,
by
the
Defendants
,
their
Heirs
and
Assigns
.
Elvard
contra
Warren
,
32
Car.
2.
fo.
255.
THe
Plaintiff
having
a
Sequestation
against
the
Defendants
real
and
personal
Estate
for
non-payment
of
536
l.
Sequestration
.
decreed
to
the
Plaintiff
,
the
Plaintiff
prayed
the
same
might
be
paid
him
out
of
the
Defendants
Estate
,
so
far
as
it
will
extend
,
and
out
of
the
Security
given
by
the
Defendant
for
abiding
the
Order
on
Hearing
,
and
also
prayed
,
for
that
some
part
of
the
Defendants
Estate
now
under
Sequestration
is
a
contingent
Term
,
which
will
determine
upon
the
death
of
one
person
,
whereby
the
Plaintiff
may
lose
his
said
Debt
:
That
the
Commissioners
of
the
Sequestration
may
be
impowered
to
sell
the
said
Estate
;
and
prayed
also
,
in
regard
the
Defendants
Estate
is
not
sufficient
to
satisfie
the
Plaintiffs
said
demand
,
that
a
Recognizance
given
by
the
Defendant
,
to
abide
the
Decree
may
be
produced
and
inrolled
.
This
Court
Ordered
the
said
536
l.
Interest
and
Costs
to
be
paid
by
the
said
Defendant
,
The
Mony
decreed
to
be
paid
out
of
the
Sequestred
Estate
,
and
the
Commissioners
have
power
to
sell
the
Term
,
to
raise
the
same
.
or
out
of
the
Sequestred
premisses
,
or
the
Security
before-mentioned
,
and
that
the
Commissioners
of
the
Sequestration
do
sell
such
of
the
sequestred
premisses
as
are
held
for
any
term
for
the
best
price
,
and
the
Mony
thereby
raised
to
pay
the
Plaintiff
,
towards
satisfaction
of
his
demands
.
The
Question
is
,
Whether
the
Defendant
being
charged
in
Prison
in
Bristol
with
a
Decree
of
this
Court
;
can
be
discharged
without
satisfying
the
Decree
,
it
being
insisted
on
,
that
a
Decree
in
this
Court
is
not
a
Judgment
to
detain
the
Defendant
.
This
Court
declared
,
A
Decree
in
Chancery
as
effectual
to
charge
the
person
,
as
an
Execution
at
Law
.
That
a
Decree
in
this
Court
is
as
effectual
to
charge
the
person
of
the
Defendant
,
as
an
Execution
at
Law
;
and
the
Defendant
being
charged
with
the
Decree
,
the
Court
declared
,
if
the
Warden
of
the
Fleet
let
him
go
it
should
be
at
his
peril
.
Glenham
contra
Statvile
,
32
Car.
2.
fo.
755.
THese
being
cross
Causes
,
Bill
of
Revivor
dismist
.
the
Defendant
Charles
Statvile
exhibited
his
Bill
to
be
relieved
against
the
Plaintiff
and
his
Wife
touching
a
Rent
charge
,
for
which
the
Plaintiff
and
his
Wife
by
their
Bill
claims
;
and
the
Defendant
Judith
Statvile
exhibited
her
Bill
against
the
Distresses
,
pretending
the
Lands
out
of
which
the
Annuity
issues
is
her
Joynture
:
Which
Causes
being
heard
,
a
Trial
at
Law
was
directed
to
try
,
whether
the
Arrears
of
the
Annuity
was
paid
;
upon
Trial
the
Plaintiff
obtained
a
Verdict
for
475
l.
and
the
Causes
coming
again
to
be
heard
,
it
was
decreed
,
that
the
Defendants
should
pay
the
475
l.
with
Interest
and
Costs
,
which
Costs
were
afterwards
taxed
to
226
l.
and
that
Report
confirmed
,
and
a
Writ
of
Execution
of
the
said
Decree
and
Report
left
at
the
Defendants
House
,
and
Mony
demanded
,
and
for
Non
payment
an
Attachment
issued
against
the
Defendant
Charles
Statvile
,
who
appeared
and
was
examined
,
and
certified
,
not
in
Contempt
,
but
upon
Arguing
the
Exceptions
to
the
Certificate
;
the
Defendant
was
ordered
to
pay
the
475
l.
and
the
said
Costs
,
except
100
l.
thereof
which
was
remitted
:
But
the
Defendant
did
not
pay
the
Mony
,
and
the
Plaintiffs
Wife
being
since
dead
,
he
hath
Administration
,
and
is
intituled
to
the
Monies
:
But
the
Defendants
refuse
to
pay
the
same
,
insisting
,
That
the
said
Decree
and
Proceedings
are
abated
,
so
that
the
Plaintiff
now
by
his
Bill
seeks
relief
in
the
premisses
,
and
that
a
Subpoena
ad
Revivend
Respondend
,
or
such
other
Process
as
the
Matter
should
require
,
might
be
awarded
.
The
Defendant
by
Demurrer
insists
,
That
in
case
the
Plaintiffs
Bill
shall
be
taken
for
an
Original
Bill
,
then
it
contains
no
Equity
,
he
having
remedy
at
Law
,
and
that
the
Plaintiff
was
a
Defendant
in
former
Suits
,
No
Defendant
in
case
of
Abatement
before
the
Decree
signed
,
can
revive
.
and
by
the
course
of
the
Court
no
Defendant
,
or
any
that
represents
him
,
in
case
of
an
Abatement
before
the
Decree
or
Final
Judgment
be
signed
and
inrolled
,
can
or
ought
to
revive
;
and
the
Bill
does
not
say
,
that
any
Decree
or
Final
Judgment
is
signed
and
inrolled
,
and
it
is
contrary
to
the
Rules
of
the
Court
,
to
make
a
Decree
against
the
Plaintiff
upon
his
own
Bill
,
and
it
would
be
meerly
vexatious
if
the
Plaintiff
should
revive
his
former
Proceedings
,
which
if
revived
the
now
Plaintiff
can
have
no
Final
Judgment
,
contrary
to
the
Prayer
of
his
Answer
to
the
Original
Bill
,
which
was
,
that
he
might
be
dismissed
,
No
Revivor
for
Costs
,
there
being
no
Decree
inrolled
.
and
the
Plaintiffs
demands
by
the
New
Bill
are
chiefly
for
Costs
of
Suits
,
which
are
extinguished
by
the
death
of
the
Plaintiffs
Wife
,
and
if
he
were
intituled
to
a
Bill
of
Revivor
he
could
not
revive
for
Costs
,
there
being
no
Decree
inrolled
.
This
Court
allowed
the
Defendants
Demurrer
,
and
dismist
the
Plaintiffs
Bill
of
Revivor
.
Raymond
contra
Paroch
.
Buttolphs
Aldgate
in
Com.
Midd.
32
Car.
2.
fo.
517.
THe
Plaintiff
being
one
of
the
Kings
Waiters
in
the
Port
of
London
,
Priviledge
.
and
yet
used
the
Trade
of
a
Common
Brewer
,
and
executed
his
said
place
by
a
Deputy
:
The
Defendants
insist
,
He
is
not
to
be
exempted
from
bearing
the
Office
of
Overseer
of
the
poor
in
the
Parish
.
The
Plaintiff
insists
,
That
the
Kings
Officers
who
serve
his
Majesty
in
Relation
to
his
Revenue
,
ought
to
be
exempted
from
Parish
Offices
,
though
they
executed
their
places
by
Deputy
,
and
use
an
other
Trade
,
they
being
still
liable
to
answer
any
misdemeaner
committed
by
their
Deputies
,
and
if
their
Deputies
should
be
absent
at
any
time
,
they
are
bound
to
execute
the
same
themselves
,
which
often
falls
out
,
and
Presidents
of
this
Nature
,
have
often
been
found
,
and
hopes
this
Court
will
not
take
away
any
the
priviledges
such
Officers
ought
to
enjoy
in
right
of
their
Offices
,
and
that
a
Supersedeas
of
priviledge
be
allowed
the
Plaintiff
,
and
his
Writ
of
priviledge
stand
.
The
Defendants
insist
,
That
the
Plaintiff
driving
a
Trade
of
a
Common
Brewer
,
and
getting
Money
in
the
Parish
,
he
ought
to
bear
the
Offices
of
the
Parish
,
notwithstanding
his
said
Office
,
and
if
any
Priviledge
were
due
,
it
ought
to
be
granted
by
the
Court
of
Exchequer
,
and
not
by
this
Court
.
This
Court
declared
,
The
Kings
Officer
priviledge
from
Parish
Offices
,
tho'
he
drive
a
Trade
in
the
Parish
.
That
the
Kings
Officers
ought
to
have
the
benefit
of
their
priviledge
,
and
the
execution
thereof
by
a
Deputy
,
nor
his
dealing
in
another
Trade
,
should
not
in
any
sort
be
prejudicial
to
him
,
he
being
to
answer
for
any
neglect
or
misdemeanour
committed
by
his
Deputy
,
for
that
it
is
not
reasonable
that
the
Kings
Servants
or
Officers
,
should
have
nothing
else
to
subsist
on
,
Such
priviledge
grantable
out
of
Chancery
,
as
well
as
Exchequer
.
but
their
immediate
Services
or
Places
under
his
Majesty
,
and
take
no
other
imployment
on
them
;
and
although
a
priviledge
of
that
nature
be
grantable
in
the
Exchequer
,
a
Writ
of
priviledge
under
the
great
Seal
was
,
and
ought
to
be
taken
in
all
respects
as
effectual
,
and
therefore
allowed
the
Plaintiff
his
priviledge
.
Dominus
Bruce
contra
Gape
,
32
Car.
2.
fo.
723.
THe
question
in
this
case
is
,
Deed.
Will
.
Revocation
.
whether
the
Mannour
of
Mudghill
,
is
within
the
devise
of
the
Duke
of
Somerset
by
his
Will
in
August
,
1657.
of
the
Residue
of
the
Estate
unsold
,
for
the
benefit
of
his
three
Daughters
,
and
the
Lady
Bruce
his
Grand-Child
,
or
whether
it
belongs
to
the
Lady
Bruce
only
,
as
Heir
at
Law
,
and
whether
the
same
be
liable
,
and
comprehended
in
the
Trust
,
together
with
other
Manours
and
Lands
,
to
Satisfie
the
19100
l.
Debts
only
,
or
is
subject
with
the
other
Lands
in
the
said
Deed
and
Will
for
Satisfaction
of
all
the
debts
of
the
said
Duke
William
.
The
Case
is
(
viz.
)
that
the
Plaintiff
the
Lady
Elizabeth
,
Wife
of
the
Lord
Bruce
,
is
Grand
child
and
Heir
of
William
late
Duke
of
Somerset
,
and
Sister
and
next
Heir
of
William
also
late
Duke
of
Somerset
,
who
was
the
only
Son
of
Henry
Lord
Beauchamp
,
the
Eldest
Son
of
William
Duke
of
Somerset
the
Grandfather
,
which
said
Duke
William
the
Grandfather
,
did
by
deed
the
13
Nov.
1652.
Convey
to
the
Lord
Seymour
,
Sir
Olando
Bridgman
,
&c.
and
their
Heirs
,
the
Mannour
and
Lands
in
Trust
for
payment
of
Moneys
to
the
Lord
John
Seymour
,
and
the
Lady
Jane
Seymour
:
Then
upon
further
Trust
to
pay
Debts
,
amounting
to
19100
l.
and
after
in
Trust
for
raising
10000
l.
for
the
Lord
John
Seymour
,
and
6000
l.
for
the
Lady
Jane
Seymour
,
and
Trustees
to
account
yearly
to
the
right
and
next
Heir
of
the
said
Duke
,
with
a
power
of
Revocation
in
the
said
deed
,
as
to
all
but
the
said
19100
l.
debts
;
and
that
the
said
Duke
William
19th
of
April
1654.
as
to
a
further
provision
for
the
payment
of
the
Debts
by
deed
,
conveyed
to
the
Earl
of
Winchelsea
,
and
the
Defendant
Gape
and
others
,
and
their
Heirs
,
the
Lands
in
Wilts
and
Somerset
,
(
worth
30000
l.
and
sufficient
to
pay
all
his
Debts
)
to
himself
for
life
,
and
after
for
payment
of
Annuities
,
and
after
his
death
,
then
to
the
use
of
the
last
Trustees
and
their
Heirs
,
upon
special
Trust
,
that
they
should
lease
out
the
premisses
,
and
with
the
Mony
thereby
raised
,
and
otherwise
with
the
profits
,
pay
all
such
Debts
for
which
the
Plaintiff
stood
ingaged
for
the
said
Duke
,
and
that
the
overplus
of
the
said
Mony
and
Profits
to
be
paid
,
and
the
Lands
unsold
,
to
be
conveyed
to
the
right
Heirs
of
the
said
Duke
,
wherein
was
a
power
reserved
in
the
said
Duke
by
deed
or
Will
,
to
revoke
the
said
Uses
or
Trust
:
That
the
said
Duke
by
deed
,
the
20
of
April
1654.
reciting
that
the
Lord
Beauchamp
the
Eldest
Son
,
died
since
the
deed
of
the
13
of
November
1652.
and
had
left
only
one
Son
,
and
the
Plaintiff
Lady
Bruce
,
and
that
the
Lady
Bruce
was
left
unprovided
for
,
and
reciting
the
deed
of
the
19
of
April
1654.
made
an
Additional
provision
for
the
payment
of
his
debts
,
which
made
the
Lands
the
deed
of
1652.
of
a
greater
value
than
would
satisfie
the
said
Trust
,
and
therefore
appointed
the
last
Trustees
in
the
deed
of
1652.
should
out
of
the
Money
to
be
raised
by
Sail
of
those
Land
,
and
the
profits
thereof
pay
the
Plaintiff
Elizabeth
,
Lady
Bruce
100
l.
per
Annum
,
till
her
Age
of
17
,
and
after
300
l.
per
Annum
,
and
then
after
the
debts
in
the
deed
of
1652.
and
Portions
to
the
Lord
John
,
and
Lady
Jane
Seymour
,
then
to
pay
Elizabeth
the
the
Lady
Bruce
6000
l.
portion
also
,
with
power
of
Revocation
.
That
afterwards
the
said
Duke
by
Will
,
15
of
August
1657.
having
as
aforesaid
,
secured
the
said
19100
l.
debts
,
devised
to
his
Son
,
the
Lord
John
Seymour
,
and
the
Heirs
Males
of
his
Body
,
the
said
Mannour
of
Mudghill
,
and
because
the
Lady
Ann
Beauchamp
his
Sister
in
Law
,
had
the
same
as
part
of
her
Joynture
,
and
the
same
was
Leased
out
for
the
life
of
Pleydall
,
his
Will
was
,
that
till
the
same
fell
in
possessision
to
the
Lord
Seymour
,
the
Trustees
in
the
deed
of
1652.
should
pay
him
maintenance
,
and
they
to
convey
to
him
,
when
they
thought
fit
,
and
by
the
said
Will
,
taking
notice
of
the
deed
in
1652.
and
of
the
19
of
April
1654.
and
also
of
his
power
of
Revocation
,
appointed
and
declared
the
Trusts
in
those
deeds
for
his
Grandson
.
William
Lord
Beauchamp
,
and
the
Plaintiff
the
Lady
Elizabeth
Bruce
,
or
for
the
benefit
of
his
Right
Heirs
,
should
cease
,
and
the
same
was
thereby
revoked
,
and
appointed
the
Trustees
in
those
deeds
,
to
convey
the
said
premisses
to
the
Lady
Frances
his
Wife
,
and
the
Earl
of
South-hampton
,
and
the
Earl
of
Winchelsey
,
and
Sir
Orlando
Bridgman
,
and
the
said
Gape
and
others
,
and
their
Heirs
upon
Trust
,
as
to
Mudghill
,
as
he
before
had
declared
,
and
as
to
the
rest
of
the
Mannours
and
Lands
on
Trust
,
for
payment
of
all
such
debts
in
the
said
Indentures
to
be
paid
,
and
unpaid
at
his
death
,
and
for
freeing
his
personal
Estate
,
and
Executors
from
the
payment
thereof
,
and
of
the
Trust
in
the
Deed
of
1652
,
for
the
Lady
Jane
Seymour
,
and
after
these
Trusts
performed
,
all
the
Lands
unsold
and
the
Reversion
thereof
be
disposed
by
the
Lady
Dutchess
of
Sommerset
his
Wife
,
and
the
Trustees
by
his
Will
and
their
Heirs
for
21
years
,
from
his
death
to
such
as
the
said
Lady
Dutchess
should
appoint
,
and
in
default
of
such
appointment
,
for
the
raising
such
sums
of
Mony
for
the
Plaintiff
Elizabeth's
portion
and
maintenance
,
as
the
Deed
of
the
20
of
April
1654
appoints
or
in
default
of
such
appointment
by
the
Dutchess
,
to
go
to
such
Person
to
whom
the
Trust
of
the
Inheritance
of
the
premisses
,
after
the
21
years
is
limited
by
the
Will
,
and
the
conveyance
so
to
be
made
to
the
said
Dutchess
,
and
the
other
person
named
in
his
Will
,
should
be
upon
further
Trust
,
that
the
said
Dutchess
and
the
other
person
should
stand
seized
of
the
said
Lands
unsold
,
and
the
Reversion
of
such
part
thereof
,
as
should
be
leased
out
for
lives
or
years
in
Trust
for
William
Lord
Beauchamp
,
and
the
Heirs
Males
of
his
Body
,
and
for
want
of
such
Issue
forthe
benefit
of
John
Lord
Seymour
for
life
,
and
after
for
the
benefit
;
of
the
first
,
and
every
other
Son
of
his
Body
,
and
the
Heirs
Males
of
their
Bodies
respectively
,
and
for
default
of
such
Issue
for
the
benefit
of
all
his
Daughters
,
and
the
Plaintiff
the
Lady
Elizabeth
Bruce
his
Grandchild
,
and
all
the
Daughters
of
John
Lord
Seymour
and
their
Heirs
,
equally
as
Tenants
in
common
,
and
not
as
Joynt
Tenants
,
which
Will
the
said
Duke
in
1660
ratified
by
new
publishing
thereof
,
and
all
the
Trustees
in
the
deed
of
1652
being
dead
,
except
Sir
Orlando
Bridgman
and
Gape
,
and
the
interest
in
Law
being
in
them
by
Survivor
ship
,
Sir
Orlando
Bridgman
knowing
the
debts
in
the
deed
of
1652
to
be
paid
,
conveyed
all
the
Lands
therein
mentioned
to
the
said
Dutchess
of
Sommerset
.
That
in
1671
,
the
said
William
Lord
Beauchamp
Duke
of
Sommerset
died
without
Issue
,
whose
Heir
the
Plaintiff
the
Lady
Bruce
is
,
and
after
the
Lord
John
Seymour
became
Duke
of
Sommerset
and
died
without
Issue
,
by
whose
death
the
Plaintiff
the
Lady
Bruce
is
intituled
as
Heir
to
Duke
William
her
Grandfather
,
to
the
reversion
in
fee
of
Mudghill
,
Duke
John
being
only
Tenant
in
Tail
thereof
,
and
ought
to
injoy
the
same
,
it
not
being
liable
to
pay
any
debts
,
but
is
discharged
thereof
by
her
Grandfathers
Will
,
and
not
disposed
from
her
by
any
Act
,
the
19100
l.
being
all
paid
.
So
that
the
questions
now
before
the
Court
were
,
whether
the
reversion
of
Mudghill
expectant
upon
Pleydalls
Estate
for
life
,
as
well
as
the
residue
of
the
Estate
be
liable
to
all
the
debts
,
which
Duke
William
owed
at
his
death
,
or
only
to
the
19100
l.
debts
.
And
secondly
,
Whether
the
reversion
of
Mudghill
,
as
well
as
the
residue
of
the
Estate
,
after
satisfaction
of
all
the
debts
of
Duke
William
,
ought
to
be
for
the
benefit
of
all
Duke
Williams
Daughters
,
and
the
Plaintiff
Lady
Bruce
and
their
Heirs
equally
,
or
the
said
reversion
to
go
intirely
to
the
said
Lady
Bruce
,
as
right
Heir
to
Duke
William
.
As
to
the
first
question
,
the
Defendant
insisted
the
said
Reversion
,
as
well
as
the
other
Estate
is
liable
to
all
the
debts
,
for
that
by
the
deed
of
1652.
Mudghill
was
conveyed
for
raising
of
Money
for
the
payment
of
19100
l.
debts
,
and
all
other
debts
that
he
should
owe
at
the
time
of
his
death
,
in
which
deed
it
is
provided
,
that
after
the
said
debts
be
paid
,
he
might
by
any
deed
,
or
his
last
Will
,
Revoke
all
or
any
of
the
said
Trusts
,
other
than
as
concerning
the
19100.
debts
,
yet
made
no
Revocation
,
other
than
by
his
last
Will
,
and
therein
he
Revoked
,
only
those
Trusts
that
were
for
the
benefit
of
the
Lord
Beauchamp
,
or
the
Lady
Elizabeth
Seymour
or
his
own
right
Heirs
,
and
by
the
said
deed
,
the
Legal
Estate
in
Mudghill
,
is
setled
in
the
Trustees
and
their
Heirs
,
and
the
Duke
had
no
power
to
Revoke
the
uses
or
Estates
,
till
after
the
19100
l.
was
paid
,
and
the
said
Duke
directing
his
Trustees
to
convey
Mudghill
to
his
Son
John
,
he
did
thereby
dispose
of
an
equitable
interest
,
only
of
the
reversion
of
Mudghill
,
and
the
19100
l.
was
not
paid
in
the
said
Dukes
life-time
,
but
great
part
remains
unpaid
,
and
he
hath
contracted
several
new
debts
,
since
the
20th
of
April
1654.
which
the
Defendant
since
paid
upon
the
Securities
of
the
said
Lands
,
and
Mudghill
is
one
of
the
Mannours
conveyed
by
the
deed
of
1652.
for
the
payment
of
19100
l.
and
all
other
the
debts
he
should
owe
at
the
time
of
his
death
;
and
altho'
the
same
be
directed
by
the
last
Will
of
the
said
Duke
,
to
be
setled
upon
the
Lord
John
Seymour
,
and
his
Heirs
Males
,
yet
the
said
Duke
by
deed
of
1652.
had
no
power
to
revoke
the
same
for
the
payment
of
his
debts
,
or
if
he
had
,
he
did
not
revoke
the
same
by
the
said
Will
;
but
left
Mudghill
and
other
the
premisses
subject
to
the
payment
of
his
debts
;
and
the
Trustees
understanding
such
to
be
the
Dukes
intention
,
never
setled
Mudghill
on
the
said
Lord
John
Seymour
,
who
being
lately
dead
without
Issue
,
the
same
is
subjected
to
the
payment
of
the
said
Duke
Williams
debts
,
and
when
debts
are
satisfied
,
the
overplus
of
the
Moneys
,
and
the
said
Mudghill
,
and
all
other
the
premisses
ought
to
be
divided
,
according
to
the
intent
of
the
said
Dukes
Will
,
and
by
the
said
Dukes
death
,
and
the
Releases
of
the
said
Trustees
,
the
interest
in
Law
became
vested
in
Sir
Orlando
Bridgman
,
and
he
conveyed
Mudghill
,
&c.
unto
the
said
Dutchess
,
and
the
said
Gape
and
other
the
Trustees
and
their
Heirs
,
that
they
might
therewith
pay
the
said
debts
;
and
though
there
be
sufficient
besides
Mudghill
to
pay
all
the
debts
,
yet
by
the
Will
upon
which
this
question
doth
arise
,
that
thereby
the
Trust
for
the
Right
Heirs
of
the
said
Duke
,
are
revoked
in
express
Terms
,
so
that
by
any
deed
preceding
the
said
Will
,
the
Plaintiff
the
Lady
Bruce
cannot
claim
any
advantage
as
Heir
,
the
rather
,
for
that
by
the
Will
it
doth
appear
,
that
Duke
William
had
an
equal
regard
to
his
own
Daughter
,
and
the
Plaintiff
the
Lady
Bruce
his
Grandchild
and
Heir
,
and
it
cannot
be
presumed
,
that
he
would
more
concern
himself
for
the
Welfare
of
a
Grand-daughter
,
than
his
own
Daughters
,
nor
was
the
said
Reversion
of
Mudghill
,
disposed
to
the
Plaintiff
by
any
words
in
the
Will
,
though
he
did
by
express
words
in
his
Will
,
Revoke
all
Trusts
,
for
the
benefit
of
his
Heirs
in
Mudghill
,
as
well
as
the
other
Lands
,
and
made
other
particular
provisions
further
,
which
shews
,
he
did
not
intend
that
for
her
,
for
if
he
had
,
he
would
not
have
Revoked
the
former
Trusts
,
as
to
that
by
which
she
would
have
been
intituled
as
Heir
,
especially
,
when
he
hath
devised
all
the
Surplus
of
his
Estate
,
which
involves
Mudghill
as
well
as
the
rest
,
amongst
his
own
three
Daughters
,
and
her
equally
,
nor
doth
it
any where
appear
,
that
Mudghill
is
in
any
sort
exempted
from
Satisfaction
of
the
Creditors
,
nor
could
it
so
be
by
the
said
deed
made
by
Sir
Olando
Bridgman
,
who
best
knew
the
intention
of
all
Parties
in
this
matter
.
But
the
Plaintiffs
insisted
,
That
the
said
Duke
could
not
intend
Mudghill
should
be
conveyed
to
the
uses
declared
in
the
Will
,
for
that
the
same
is
to
be
conveyed
to
the
said
Lord
John
,
and
the
Heirs
Males
of
his
Body
,
which
is
an
Estate
of
Inheritance
,
and
he
had
power
by
a
common
Recovery
to
have
bound
the
remainder
,
and
the
reversion
after
the
Estate
tale
is
not
Assets
in
Law
;
and
therefore
cannot
be
conceived
for
the
payment
of
his
debts
,
and
the
rather
,
for
that
he
recites
deeds
in
1652.
and
April
1654.
and
directs
the
Trustees
therein
,
to
convey
all
his
Lands
and
Mannours
in
those
deeds
,
to
his
Dutchess
and
others
,
as
to
the
Mannour
of
Mudghill
,
as
before
he
declared
by
his
Will
;
and
as
to
all
the
rest
of
the
Mannours
,
he
declared
for
the
payment
of
his
Debts
,
so
that
(
all
the
rest
)
excludes
the
Mannours
of
Mudghill
,
and
upon
the
whole
Will
it
doth
appear
,
the
Duke
intended
no
Reversion
should
pass
,
but
Reversions
after
Estates
for
life
or
years
,
and
therefore
this
Reversion
of
Mudghill
,
which
is
after
an
Estate
Tail
,
doth
not
pass
,
and
if
it
had
been
intended
to
pass
,
he
would
have
limited
it
to
the
said
Lord
John
for
life
,
without
remainder
to
his
first
or
other
Sons
in
Tail
,
for
he
had
before
given
him
a
better
Estate
in
Mudghill
to
him
and
the
Heirs
of
his
Body
,
and
the
Trustees
were
not
to
settle
Mudghill
accordingly
,
until
the
same
fell
in
possession
,
the
same
being
yet
for
Pleydalls
life
.
This
Court
on
reading
the
several
Deeds
and
Will
,
declared
,
That
although
the
Lord
John
,
might
possibly
have
an
Estate
Tail
in
him
,
and
doct
it
;
but
he
not
doing
it
,
this
Court
can
take
no
notice
of
it
,
though
probably
he
did
forbear
to
do
it
,
because
Duke
William
had
Signified
his
desire
,
Reversion
after
an
Estate
in
Tail
subject
to
Trusts
for
payment
of
debts
.
that
he
should
not
have
an
Estate
executed
to
him
,
till
it
should
fall
in
possession
,
and
not
before
,
except
the
Trustees
pleased
:
But
the
case
must
be
taken
,
as
it
doth
appear
before
the
Court
,
that
is
,
Mudghill
was
once
liable
to
the
payment
of
the
Debts
of
Duke
William
,
and
tho'
't
is
pretended
that
the
Will
hath
taken
out
Mudghill
,
yet
the
said
Will
doth
only
take
out
an
Estate
Tail
,
but
the
Revesion
thereof
,
when
the
same
falls
in
possession
,
is
subject
to
the
same
Trust
,
and
goes
in
company
with
the
other
Reversions
,
and
the
same
is
legally
conveyed
,
and
doth
pass
in
the
general
words
,
and
therefore
this
Court
is
of
Opinion
,
that
the
Reversion
of
Mudghill
,
is
part
of
the
unrevoked
Estate
,
and
that
the
Lord
Bridgman
did
well
,
when
he
made
the
said
Conveyance
to
the
Lady
Dutchess
,
and
that
when
the
19100.
l.
and
the
said
other
debts
are
paid
,
to
which
Mudghill
is
as
well
liable
,
as
the
other
Mannours
and
Lands
,
then
the
Trustees
ought
to
convey
all
the
premisses
in
Fourths
,
and
decreed
accordingly
.
Maddocks
contra
Wren
,
32
Car.
2.
fo.
22.
THe
question
in
this
Cause
is
,
Mortgage
Account
.
with
what
profits
the
Defendant
Wren
shall
be
charged
in
ease
of
the
Plaintiff
,
who
claims
the
premisses
in
question
,
by
virtue
of
a
second
Mortgage
,
and
is
admitted
to
a
Redemption
,
on
payment
of
what
shall
appear
due
to
the
Defendant
Wren
,
who
hath
the
prior
Mortgage
?
The
Plaintiff
insists
,
That
the
said
Mortgage
being
of
a
Lease
,
and
the
Defendant
Wren
having
possession
by
Attornment
of
Tenants
,
he
ought
to
have
received
the
profits
,
whereby
his
Mortgage
would
have
been
fully
satisfied
,
yet
he
permitted
the
other
Plaintiff
Dorothy
,
Wife
of
the
Plaintiff
Maddox
the
Mortgager
,
to
receive
the
same
;
and
therefore
the
said
Wren
ought
to
be
charged
,
whereby
the
Plaintiff
may
be
let
in
to
have
Satisfaction
of
his
Debt
.
This
Court
declared
,
The
prior
Mortgagee
upon
Redemption
by
the
second
Mortgagee
,
shall
be
charged
with
the
profits
,
by
whom
soever
Received
after
the
Second
Mortgage
.
That
the
Defendant
Wren
ought
to
be
charged
with
the
Rent
,
whether
received
by
the
Wife
or
any
other
Person
,
after
the
Plaintiffs
second
Mortgage
made
,
but
all
received
by
her
,
before
the
said
second
Mortgage
,
he
ought
not
to
be
charged
.
Coles
contra
Hancock
,
32
Car.
2.
fo.
112.
THat
Benjamin
Coles
the
11th
of
June
,
Revocation
of
a
Will
.
1678.
made
his
Will
in
writing
,
and
thereby
gave
to
and
amongst
his
then
Children
,
naming
them
,
(
viz.
)
Benjamin
,
Samuel
,
Mary
and
Hannah
,
Portions
,
and
appointed
his
Real
Estate
to
be
Sold
,
and
added
to
his
Personal
Estate
,
and
made
Elizabeth
his
Wife
his
Executrix
,
and
the
Testator
being
a
Melancholy
Person
,
and
fearing
he
might
forfeit
his
Estate
,
by
making
himself
away
,
to
prevent
a
forfeiture
,
by
deed
the
14
of
June
1678.
made
over
all
his
Personal
Estate
to
Trustees
,
first
to
pay
his
debts
,
then
to
pay
some
Legacies
,
and
all
the
rest
of
his
Estate
to
be
divided
amongst
the
aforesaid
four
Children
,
That
the
Testator
afterwards
died
a
natural
death
;
but
before
his
death
,
had
another
Child
,
(
viz.
)
Sarah
,
who
is
not
provided
for
,
either
by
the
said
Will
or
Deed.
The
question
is
,
whether
the
said
Will
be
Revoked
by
the
said
Deed
of
Trust
,
that
if
it
be
Revoked
,
then
the
said
Sarah
insists
,
to
have
her
share
of
her
Fathers
Estate
,
and
that
he
ought
to
be
looked
upon
,
as
dying
Intestate
,
and
at
least
the
Personal
Estate
ought
to
be
distributed
by
the
Act
for
distributing
Intestates
Estates
,
and
the
deed
ought
not
to
stand
in
her
way
,
for
that
great
part
of
the
Estate
,
did
consist
in
debts
,
which
were
made
after
the
said
deed
,
and
did
not
pass
to
,
or
was
vested
in
the
said
Trustees
,
and
that
it
is
against
Natural
Right
and
Conscience
,
that
her
Father
leaving
a
considerable
Estate
,
she
should
have
nothing
of
it
.
This
Court
on
reading
the
said
Deed
and
Will
,
is
of
opinion
,
A
Deed
of
Trust
,
no
Revocation
of
a
Will
that
the
said
deed
of
Trust
,
is
no
Revocation
of
the
said
Will
,
being
not
made
with
intent
to
revoke
the
same
,
but
only
to
prevent
the
forfeiture
,
in
a
case
which
never
hapned
,
and
Decreed
the
same
to
be
set
aside
,
and
the
Personal
Estate
to
be
distributed
according
to
the
Will
,
and
the
remainder
to
be
divided
amongst
the
four
Children
,
Benjamin
,
Samuel
,
Mary
and
Hannah
,
Estate
Devised
to
be
sold
for
increase
of
his
Childrens
Portions
,
and
a
Child
is
born
since
the
Will
,
that
Child
shall
have
a
share
.
the
same
being
given
to
them
by
Name
,
and
as
to
the
Real
Estate
,
it
being
ordered
by
the
Testator
,
to
be
added
to
his
Personal
,
for
increase
of
all
his
Childrens
Portions
,
and
the
said
Sarah
being
born
before
he
died
,
the
same
to
be
Sold
and
divided
amongst
the
five
Children
,
(
viz.
)
Benjamin
,
Samuel
,
Mary
,
Hannah
,
and
Sarah
equally
.
Sale
contra
Freeland
,
32
Car.
2.
fo.
272.
THat
Thomas
Freeland
the
Defendants
great
Grandfather
,
Will
.
Settlement
.
Revocation
.
being
Seized
of
the
premisses
,
did
by
his
Will
in
writing
,
devise
the
same
to
Nicholas
his
Son
for
life
only
,
and
afterwards
to
his
Grandson
John
,
late
Husband
of
the
Defendant
Frances
,
and
Father
of
the
Defendant
John
,
and
his
Heirs
for
ever
,
That
the
said
Thomas
and
Nicholas
being
dead
,
John
the
Grandson
entred
,
and
for
300
l.
Mortgaged
the
premisses
to
the
Plaintiff
,
and
not
long
after
the
said
John
,
on
confidence
of
the
power
he
had
to
dispose
of
the
premisses
,
made
his
Will
,
and
the
Defendant
Frances
Executrix
,
and
devised
the
premisses
to
be
Sold
,
for
payment
of
his
Debts
.
But
the
Defendant
insists
,
That
the
said
Thomas
the
great
Grandfather
,
had
no
power
to
dispose
of
the
same
premisses
,
and
if
he
had
,
he
did
not
pursue
it
regularly
,
for
that
he
had
made
a
Settlement
of
the
premisses
in
1651.
upon
one
Henry
Weston
,
and
his
Heirs
,
to
the
use
of
him
the
said
Thomas
for
life
,
and
after
to
Nicholas
his
Son
for
life
,
and
after
to
the
use
of
the
said
John
his
Grandson
,
and
the
Heirs
of
his
Body
,
with
remainder
over
,
and
that
the
Defendant
John
the
Grandson
,
by
virtue
of
the
said
deed
as
Heir
in
Tail
,
claims
the
premisses
,
whereas
(
if
any
such
deed
were
)
it
was
with
a
power
of
Revocation
by
any
Writing
or
Will
in
writing
,
to
be
executed
in
the
presence
of
three
Witnesses
,
and
was
revoked
by
his
making
his
said
Will
,
in
the
presence
of
three
Witnesses
,
though
one
of
them
then
present
,
did
not
subscribe
the
same
,
That
the
said
John
the
Grandson
,
had
the
full
power
of
the
Estate
,
and
the
grant
made
to
the
Plaintiff
,
ought
to
be
supported
in
Equity
,
being
for
valuable
consideration
,
though
the
power
was
not
litterally
pursued
in
the
Circumstances
of
three
Witnesses
,
the
intent
of
the
Person
appearing
,
as
sufficiently
by
two
Witnesses
,
as
if
there
were
three
,
and
submit
to
the
Judgment
of
this
Court
.
The
Plaintiff
farther
insisting
,
That
the
said
Thomas
the
great
Grandfather
,
takes
notice
in
the
preamble
of
his
Will
,
of
the
power
by
him
reserved
upon
the
said
Settlement
,
to
make
any
alteration
thereof
during
his
life
;
and
then
by
the
said
Will
deviseth
the
premisses
to
the
said
John
his
Grandson
in
Fee
,
and
he
Mortgages
to
the
Plaintiff
,
and
there
is
no
Colour
,
but
the
Defendants
ought
to
redeem
,
or
be
foreclosed
.
This
Court
(
it
appearing
that
there
was
more
than
two
Witnesses
present
at
the
publishing
the
Will
,
A
Settlement
with
power
of
revocation
by
Will
in
writing
,
executed
in
the
presence
of
three
witnesses
,
but
one
of
them
did
not
Subscribe
his
Name
,
yet
Decreed
a
sufficient
Revocation
.
though
two
only
Subscribed
their
Names
thereto
,
and
upon
hearing
the
words
of
the
power
,
and
also
the
Will
of
the
said
Thomas
Read
)
declared
,
that
as
this
case
was
Circumstanced
,
there
ought
to
be
a
Redemption
or
a
foreclosure
,
and
that
the
Will
although
but
two
Witnesses
to
it
,
did
sufficiently
revoke
the
said
deed
of
Intail
.
Rose
contra
Tillier
,
33
Car.
2.
fo.
435.
THat
William
Tillier
deceased
,
Copyhold
Surrendred
on
Condition
to
pay
200
l.
to
Katherine
,
at
21
years
of
Age
and
if
she
die
before
21
without
Heirs
of
her
Body
,
then
to
the
Surrendree
.
Katherine
dies
before
21
,
leaving
a
Son
,
Decreed
the
200
l.
to
be
paid
to
the
Son
,
and
the
Lands
to
stand
charged
therewith
.
14
Car.
2.
Surrendred
Copyhold
Lands
of
Inheritance
,
to
the
use
of
the
Defendant
J.
Tillier
his
Heirs
and
Assigns
for
ever
,
upon
condition
,
that
the
Defendant
should
pay
,
or
cause
to
be
paid
to
Katherine
Tillier
,
the
Daughter
of
the
said
William
Tillier
200
l.
when
she
should
accomplish
the
Age
of
21
and
if
the
said
Katherine
should
die
before
21
,
without
Heirs
of
her
Body
,
then
the
said
200
l.
to
be
for
the
use
of
the
said
Defendant
;
but
if
default
should
be
made
by
the
said
Defendant
,
then
the
said
Copyhold
Lands
should
be
to
the
use
of
the
said
Catherine
,
her
Heirs
and
Assigns
,
and
the
said
Surrender
to
be
void
;
and
the
said
Willian
Tillier
after
the
said
Surrender
,
and
before
he
died
,
by
writing
appointed
the
said
Defendant
not
only
to
pay
the
said
200
l.
to
the
said
Katherine
,
but
also
6
l.
per
Cent.
till
such
time
as
the
same
became
due
:
That
the
Plaintiff
married
the
said
Katherine
,
and
had
by
her
one
Son
named
George
;
that
after
Katherine
died
,
and
then
George
and
the
Plaintiff
took
Administration
to
them
both
,
whereby
he
is
intituled
to
the
said
200
l.
with
damages
.
The
Defendant
insists
,
That
Katherine
died
before
the
Age
of
21
,
and
so
he
is
not
liable
to
pay
the
said
200
l.
or
to
give
any
Account
of
the
Lands
or
Profits
in
the
Surrender
.
This
Court
decreed
the
Defendant
to
pay
the
Plaintiff
the
said
200
l.
and
that
the
said
Lands
so
surrendred
stand
charged
therewith
.
Thompson
contra
Atfield
,
33
Car.
2.
fo.
412.
THe
Bill
is
to
discover
a
purchase
Deed
of
Frogpoole
,
Marriage
Settlement
.
purchased
by
Henry
Atfield
,
the
Plaintiffs
Great
Grandfather
,
to
him
and
his
Heirs
,
and
that
William
Thompson
the
Plaintiffs
Grandfather
,
married
Mary
the
eldest
Daughter
of
the
said
Henry
Atfield
,
who
declared
that
he
had
made
the
purchase
aforesaid
,
for
the
benefit
of
the
said
William
and
Mary
his
Wife
,
and
for
the
Heirs
of
the
said
Mary
,
and
that
he
would
settle
the
same
accordingly
,
but
the
said
Henry
Atfield
dying
before
any
such
Deed
was
executed
;
yet
the
said
William
and
Mary
were
in
possession
long
before
the
death
of
the
said
Henry
,
and
paid
no
Rent
,
and
the
said
Henry
leaving
a
Son
at
his
death
,
(
viz
)
John
Atfield
the
Defendants
Father
,
who
having
a
great
affection
for
Anthony
Thompson
the
Plaintiffs
Father
,
who
was
the
Son
and
only
Child
of
the
said
William
and
Mary
his
Aunt
,
a
Match
was
proposed
between
the
said
Anthony
and
Elizabeth
Smith
the
Plaintiffs
Father
and
Mother
,
which
took
effect
;
but
before
and
in
consideration
of
the
said
Marriage
the
said
John
Atfield
the
Defendants
Father
setled
the
said
premisses
on
the
said
Anthony
the
Plaintiffs
Father
and
his
Heirs
for
ever
,
and
the
said
Anth.
had
by
the
said
Elizabeth
the
Plaintiff
his
eldest
Son
and
Heir
.
But
the
Defendants
pretend
the
said
Deed
is
defective
in
Law
,
to
have
which
Deed
made
good
,
and
supply
the
defect
thereof
by
Equity
by
the
Defendant
,
according
to
the
intent
of
the
original
Settlement
made
by
John
Atfeild
,
the
Defendants
Father
,
is
the
Bill
.
The
Defendant
insists
,
There
could
be
no
such
Marriage
Agreement
for
setling
the
premisses
as
aforesaid
,
for
that
Mary
sued
her
Mother
and
had
her
portion
out
of
the
personal
Estate
,
and
though
the
Defendants
Father
might
intend
to
give
the
Plaintiffs
Father
the
premisses
,
and
sealed
a
Deed
for
that
purpose
;
yet
he
altered
his
Mind
and
never
perfected
it
,
and
there
was
no
Consideration
for
his
so
doing
.
And
the
Defendant
insists
,
He
ought
to
enjoy
the
premisses
,
for
that
by
the
Plaintiffs
own
shewing
his
Title
is
defective
,
and
therefore
ought
not
to
receive
any
countenance
in
a
Court
of
Equity
against
the
Defendant
,
who
is
Heir
at
Law
to
his
Father
and
Grandfather
,
and
comes
in
and
ought
to
have
the
Aid
of
the
Court
to
protect
his
Title
.
But
the
Plaintiffs
Council
insisted
,
That
the
Defendants
detaining
of
the
said
Deed
is
a
Fraud
,
and
the
Consideration
of
making
the
said
Deed
is
valuable
,
Defect
of
Livery
and
Seisin
aided
in
Chancery
.
and
there
is
no
defect
therein
,
but
want
of
Livery
and
Seizin
,
which
defect
this
Court
hath
often
supplied
,
when
no
Fraud
appears
in
gaining
the
Deed.
This
Court
(
the
said
Deed
appearing
to
be
fairly
executed
by
the
Defendants
Father
,
and
that
there
was
no
defect
therein
save
only
the
form
of
Livery
and
Seizin
,
and
made
on
such
valuable
Consideration
as
Marriage
)
decreed
the
Defendant
to
execute
Livery
and
Seizin
in
the
said
Deed
,
and
make
farther
assurance
of
the
said
premisses
to
the
Plaintiff
and
his
Heirs
,
and
the
Plaintiff
is
decreed
to
enjoy
the
same
against
the
Defendant
.
Barker
contra
Hill
,
33
Car.
2.
fo
278.
THe
Plaintiff
having
Contracted
with
the
Defendants
Father
for
the
purchase
of
a
Copyhold
Estate
,
Upon
a
Contract
for
Copy-hold
Estate
,
and
purchase
Mony
paid
,
the
Bargainor
dies
before
Surrender
,
his
Heir
decreed
to
surrender
.
the
Plaintiff
paid
the
purchase
Mony
,
and
the
Defendants
Father
agreed
to
surrender
the
premisses
at
next
Court
,
and
said
,
He
had
made
a
Surrender
lately
to
the
use
of
his
Will
,
which
would
enure
to
the
benefit
of
any
Purchaser
;
but
before
next
Court
day
,
and
any
Surrender
made
,
the
Defendants
Father
died
,
so
the
Bill
is
to
have
the
Defendant
his
Son
and
Heir
to
confirm
the
Plaintiffs
purchase
by
Surrender
,
or
otherwise
,
as
this
Court
shall
direct
.
This
Court
decreed
the
Defendant
,
when
he
came
of
Age
to
surrender
effectually
the
premisses
to
the
Plaintiff
,
and
the
Lord
of
the
Mannor
presently
to
admit
the
Plaintiff
Tenant
to
the
premisses
.
Bonnington
contra
Walthall
,
33
Car.
2.
fo.
37.
THe
Defendant
Walthall
claims
an
Annuity
of
100
l.
per
An.
Annuity
.
and
Interest
out
of
the
Estate
in
question
ever
since
August
1642.
with
Interest
,
by
virtue
of
a
Deed
of
that
date
made
by
himself
to
Mr.
Serjeant
Willmot
and
others
,
whereby
it
is
appointed
,
that
the
Trustees
in
the
said
Deed
should
dispose
of
the
Monies
by
them
raised
by
profits
and
sale
of
the
premisses
,
for
payment
to
the
said
Defendant
and
his
Assigns
,
during
his
life
and
the
life
of
Peter
Bonnington
,
the
yearly
Sum
of
100
l.
and
the
said
demand
of
the
said
100
l.
per
Annum
and
Interest
being
a
Matter
of
great
value
and
moment
in
the
Cause
,
it
is
referred
to
the
Judgment
of
the
Court
,
whether
all
or
how
long
the
said
100
l.
per
Annum
shall
or
ought
to
be
allowed
in
this
point
,
as
also
the
original
Cause
which
was
heard
19
Nov.
1679.
coming
now
to
be
heard
again
.
The
Plaintiff
insisted
,
That
the
100
l.
per
Annum
,
if
it
was
created
,
the
same
determined
by
the
death
of
Peter
Bonnington
.
But
the
Defendant
Walthall
insists
,
to
have
Allowance
for
the
said
Annuity
of
100
l.
and
Interest
for
the
same
.
for
40
years
past
;
whereas
the
Plaintiff
insists
,
That
the
100
l.
per
Annum
never
was
nor
ought
to
be
allowed
to
the
Defendant
,
for
that
the
Deed
of
August
1642.
under
which
the
Defendant
claims
the
said
100
l.
per
Annum
,
the
same
was
to
be
paid
in
the
first
place
before
debts
,
and
there
being
a
debt
due
to
one
Chambers
,
which
the
said
Defendant
brought
in
,
against
which
debt
if
the
said
Annuity
had
been
real
,
the
Defendant
would
have
opposed
the
payment
of
his
said
100
l.
per
Annum
,
being
to
be
paid
in
the
first
place
,
and
the
Defendant
not
demanding
the
said
Annuity
in
40
years
,
and
suffering
debts
to
be
paid
before
it
,
it
ought
to
be
adjudged
a
Trust
for
Peter
Bonnington
,
and
the
rather
for
that
no
Consideration
appears
for
such
Annuity
.
The
Defendant
insists
,
That
the
Plaintiff
admits
it
a
Trust
,
and
seeks
Relief
only
for
the
Surplus
after
Trusts
satisfied
and
determined
,
and
this
Trust
being
Continuing
the
same
with
Arrears
and
Interest
,
ought
to
be
paid
to
the
said
Walthall
.
This
Court
on
reading
the
said
Deed
,
Annuity
not
being
demanded
in
40
years
time
,
conceived
to
be
a
Trust
.
saw
no
Consideration
for
granting
the
said
Annuity
,
and
it
never
being
demanded
,
this
Court
conceived
it
was
a
Trust
for
Bonnington
,
and
would
not
charge
the
Estate
therewith
,
and
decreed
the
Estate
to
be
discharged
thereof
.
Ring
contra
Hele
,
33
Car.
2.
fo.
270.
THe
Plaintiffs
Rings
Bill
is
for
the
Writings
and
Estate
of
Sir
Henry
Hele
,
which
he
claims
by
virtue
of
an
Agreement
made
by
the
said
Sir
Henry
and
him
,
wherein
it
was
agreed
,
that
the
said
Sir
Henry
should
settle
his
Lands
in
Wigborough
,
and
Bridges
in
Com'
Sommerset
on
himself
for
life
,
after
to
the
Heirs
of
his
Body
,
with
power
to
make
his
Wife
a
Joynture
of
Wigborough
,
and
to
grant
Estates
thereout
for
three
lives
,
with
a
Remainder
to
the
Plaintiff
Ring
and
the
Heirs
of
his
Body
if
he
Survived
;
and
Sir
Henry
died
without
Issue
,
with
Remainder
to
Sir
Henry's
right
Heirs
,
with
power
to
Sir
Henry
to
sell
Pooles
Tenement
,
part
of
the
premisses
,
and
Sir
Henry
was
forthwith
to
suffer
a
Recovery
to
dock
the
Intail
of
the
premisses
,
Consideration
.
and
in
consideration
thereof
,
the
Plaintiff
Ring
was
to
settle
his
Estate
in
Dorset
and
Sommerset
,
to
the
use
of
himself
in
Tail
,
with
Remainder
in
Tail
to
Sir
Henry
Hele
,
with
Remainder
in
Fee
to
the
Plaintiff
,
and
that
if
either
party
leave
Issue
,
to
be
at
liberty
to
make
new
dispositions
as
he
pleased
:
That
Sir
Henry
imployed
one
Chubb
and
Patten
,
to
assist
the
Plaintiff
Ring
in
Surveying
Sir
Henry's
Estate
,
and
after
both
the
Plaintiff
Ring
and
Sir
Henry
went
to
Counsel
,
who
advised
a
Deed
of
bargain
and
sale
of
the
said
Estate
,
from
Sir
Henry
to
the
Plaintiff
Ring
,
which
was
executed
between
the
said
Sir
Henry
and
the
Plaintiff
Ring
,
and
Inrolled
,
and
bears
date
the
26
of
March
1673
,
That
before
the
said
Recovery
,
the
Plaintiff
Ring
prepared
another
Deed
dated
the
6th
of
May
following
,
to
lead
the
uses
thereof
according
to
the
said
Agreements
,
and
a
draught
of
a
Settlement
of
the
Plaintiff
Rings
Estate
on
Sir
Henry
,
both
which
being
perused
and
approved
by
Sir
Henry
,
were
also
executed
,
and
the
Deed
to
lead
the
uses
of
the
Recovery
recited
the
said
Agreement
and
Inrolled
Deed
to
make
the
Defendant
Tenant
to
the
Precipe
,
and
Sir
Henry
declared
,
the
said
Recovery
to
be
to
the
uses
in
the
said
Agreement
,
and
the
Plaintiff
Ring
by
his
said
Deed
Covenants
with
the
said
Sir
Henry
,
to
stand
seized
of
the
Parsonage
,
and
other
Lands
in
Yeovel
in
Com'
Somerset
,
and
also
in
Com'
Dorset
being
all
the
Estate
he
was
then
seized
of
in
Fee
in
the
said
Counties
,
and
settles
them
to
the
uses
in
the
said
Agreement
,
Agreement
.
That
the
said
Sir
Henry
declared
himself
well
satisfied
with
what
he
had
done
,
and
paid
the
charges
of
the
Writings
:
That
the
Plaintiff
Ring
two
years
after
had
Issue
Male
,
and
Sir
Henry
after
married
and
died
without
Issue
,
and
without
making
any
Joynture
,
or
suffering
any
other
Recovery
,
and
doing
any
other
act
but
selling
the
Inheritance
of
one
Farm
,
so
the
premisses
came
to
the
Plaintiff
Ring
who
entred
,
but
the
Defendant
Hele
the
only
Son
of
Richard
Hele
,
who
was
Uncle
of
the
said
Sir
Henry
,
wrought
on
Sir
Henry
to
make
a
Will
,
and
to
Devise
the
Estate
to
the
Defendant
Hele
and
his
Heirs
,
which
Devise
the
said
Sir
Henry
would
not
make
.
The
Defendant
insists
,
That
the
Settlements
on
the
Plaintiff
Ring
were
Forged
,
and
that
the
said
Ring
never
made
any
Settlement
of
his
Estate
on
the
said
Sir
Henry
,
or
if
he
did
,
that
nothing
passed
thereby
but
only
by
way
of
Covenant
to
stand
seised
,
and
that
if
the
Plaintiff
Ring
hath
got
any
such
Deed
to
lead
the
uses
of
the
said
Recovery
,
he
got
it
by
Fraud
,
and
that
if
there
was
such
a
Deed
of
May
1673
,
which
was
after
the
Recovery
to
declare
the
uses
thereof
,
it
would
not
alter
that
of
the
26
of
March
,
for
that
the
Plaintiff
is
a
Stranger
in
Blood
to
the
said
Sir
Henry
,
and
it
doth
not
appear
,
that
any
Inrolment
or
due
Execution
was
made
of
the
Plaintiffs
Rings
Settlement
,
so
that
the
pretended
Deeds
on
both
sides
are
void
,
and
not
to
be
supported
in
a
Court
of
Equity
;
but
the
Plaintiff
Ring
may
bring
an
Action
at
Law
where
it
is
proper
to
be
tryed
,
and
where
the
Defendant
having
a
good
Title
under
the
Will
of
Sir
Henry
,
will
make
his
defence
.
The
Plaintiff
insisted
,
That
the
Defendant
objected
two
matters
against
the
Plaintiff
Rings
demands
,
(
viz.
)
Forgery
and
Fraud
,
and
if
he
will
insist
on
the
Fraud
,
he
must
admit
the
Deeds
to
be
executed
,
and
the
Defendant
admitting
de
bene
esse
,
the
Deeds
to
be
executed
,
and
to
insist
only
on
the
Fraud
and
Circumvention
.
This
Court
inspecting
the
said
Deeds
declared
,
there
was
great
suspition
of
the
reality
of
the
said
Deeds
,
but
taking
into
consideration
the
inequality
of
the
said
Estates
in
the
value
,
though
not
material
in
this
case
,
yet
it
was
a
strong
presumption
,
that
the
said
Sir
Henry
Hele
did
not
knowingly
leap
into
such
a
bargain
,
and
then
the
inequality
of
assurances
is
as
bad
,
the
said
Sir
Henry
Heles
Settlement
on
Ring
being
a
legal
Estate
,
Consideration
.
and
mentioned
to
be
in
consideration
,
that
Ring
had
made
a
good
Settlement
of
his
Estate
which
he
had
not
,
the
same
being
void
in
Law
,
and
not
to
be
made
good
by
Equity
,
and
the
subsequent
inconsistent
.
Acts
of
offering
the
Estate
to
be
sold
,
and
Rings
negotiating
the
affair
were
above
all
the
rest
bad
and
apparent
Badges
of
Fraud
and
Circumvention
in
Ring
,
Badges
of
Fraud
.
in
obtaining
the
said
Deeds
from
the
said
Sir
Henry
Hele
,
and
it
is
remarkable
in
the
Case
,
that
Sir
Henry
by
his
Will
,
devised
his
Estate
to
the
Defendant
Hele
a
little
before
his
death
.
This
Court
therefore
dismissed
the
matter
of
Rings
Bill
,
but
upon
Heles
Bill
decreed
the
Agreement
of
April
,
and
the
two
Deeds
of
May
1673
,
obtained
by
the
said
Ring
from
Sir
Henry
,
be
for
ever
hereafter
damned
and
set
aside
,
and
Ring
to
reassure
to
the
Defendant
Hele
,
and
a
perpetual
Injunction
,
not
only
to
stay
all
Suits
at
Law
touching
the
premisses
,
but
also
for
quieting
the
said
Hele
in
the
Posession
.
Com'
Craven
&
al'
contra
Knight
&
al'
34
Car.
2.
fo.
732.
THe
Bill
is
that
the
Defendant
Geo
:
Bankrupts
as
to
partners
.
Widdows
being
indebted
to
the
Plaintiffs
,
became
bound
to
them
in
several
Bonds
,
and
the
said
Widdows
and
the
Defendant
Berman
,
for
several
years
past
were
Copartners
,
and
Widdows
by
Articles
of
Copartnership
,
was
intituled
to
two
thirds
of
the
whole
Stock
,
and
the
Defendant
Berman
to
one
third
:
That
the
said
Widdows
and
Berman
the
25
of
August
last
became
Bankrupts
,
and
a
Commission
of
Bankrupsy
awarded
against
them
,
the
Commissioners
of
Bankrupts
assigned
all
the
Estate
of
the
said
Bankrupts
,
to
the
Defendant
Wright
and
others
,
and
refuse
to
let
the
Plaintiffs
Creditors
of
Bankrupts
to
come
in
,
and
intend
to
divide
the
said
Estate
amongst
the
Joynt
Creditors
of
Bankrupts
,
by
reason
whereof
the
Plaintiffs
debts
will
be
utterly
lost
.
The
Defendants
insist
,
Joynt
debts
to
be
paid
out
of
the
Joynt
Stock
.
it
was
agreed
by
Indenture
of
Copartnership
,
that
all
such
debts
as
should
be
owing
on
the
joynt
account
,
should
be
paid
out
of
the
Joynt
Stocks
,
and
at
the
end
of
the
Partnership
each
Copartner
take
and
receive
to
his
own
use
,
his
share
of
Joynt
Stock
,
and
the
Joynt
Stock
and
Trade
should
not
be
charged
with
the
private
or
particular
debts
of
either
of
the
said
Partners
;
but
that
each
should
pay
their
private
debts
out
of
their
particular
Estate
,
not
included
in
the
said
Joynt
Stock
,
that
if
both
the
said
Partners
should
be
living
at
the
end
of
the
first
three
years
of
the
six
years
,
that
the
said
Berman
should
come
in
Joynt-Partner
accordingly
,
and
during
the
Joynt
Trade
,
the
said
Copartners
became
Joyntly
indebted
to
the
other
Defendants
Wright
,
&c.
in
6000
l.
and
that
Widdows
became
indebted
to
the
Plaintiff
as
aforesaid
,
without
the
consent
of
Berman
,
and
the
Moneys
due
on
the
said
Bonds
was
not
brought
into
the
account
of
that
Joynt
Stock
,
and
the
said
Widdows
was
only
a
Surety
,
and
received
none
of
the
Moneys
;
and
the
Defendants
insist
,
that
the
Joynt
Creditors
ought
to
be
first
paid
out
of
the
Estate
in
Partnership
,
and
that
the
Commissioners
have
no
power
to
grant
the
Joynt
Estate
to
pay
the
Plaintiffs
,
they
being
separate
Creditors
of
Widdows
,
and
if
a
Surplus
of
the
Joynt
Estate
after
the
Joynt
Creditors
be
paid
,
then
the
Plaintiffs
can
have
but
a
Joynt
Moiety
of
such
Surplus
towards
their
Satisfaction
,
the
said
Bermans
Moiety
being
not
liable
to
pay
the
said
Widdows
separate
debts
,
and
the
debts
then
claimed
,
were
the
proper
debts
of
the
said
Widdows
,
and
that
after
all
the
Joynt
debts
are
paid
,
there
will
be
an
Overplus
,
so
that
thereby
the
said
Berman
will
be
discharged
,
and
have
Money
paid
to
him
;
but
if
the
Plaintiffs
and
other
separate
Creditors
of
Widdows
be
admitted
to
the
Joynt
Estate
,
there
will
not
be
sufficient
to
pay
the
Joynt
Creditors
,
so
thereby
not
only
Bermans
Estate
will
be
applyed
to
pay
Widdows
debts
,
Separate
Creditors
.
but
will
be
liable
to
the
Joynt
Creditors
;
That
there
can
be
no
division
of
the
Joynt
Estate
,
whereby
to
charge
any
part
thereof
with
the
private
debts
of
either
party
,
and
till
the
Joynt
debts
are
paid
,
and
till
division
be
made
of
the
Surplus
,
both
parties
are
alike
interessed
,
and
every
part
of
the
said
Joynt
Estate
;
that
the
Commissioners
have
no
power
by
the
Commission
,
to
Administer
an
Oath
to
the
Plaintiffs
,
for
proof
of
their
debts
,
they
claiming
debts
from
the
said
Widdows
only
,
and
the
Commission
is
against
Widdows
and
Berman
Joyntly
,
and
not
severally
,
and
therefore
cannot
admit
of
the
Plaintiffs
Creditors
.
This
Court
declared
,
That
the
Estate
belonging
to
the
Joynt
Trade
,
as
also
the
debts
due
from
the
same
,
ought
to
be
divided
into
Moieties
,
and
that
each
Moiety
of
the
Estate
ought
to
be
charged
in
the
first
place
,
with
a
Moiety
of
the
said
Joint
debts
,
and
if
there
be
enough
to
pay
all
the
debts
belonging
to
the
Joynt
Trade
,
with
an
Overplus
,
then
such
Overplus
ought
to
be
applied
to
pay
particular
debts
of
each
Partner
;
but
if
sufficient
shall
not
appear
to
pay
all
the
Joynt
debts
,
and
if
either
of
the
Partners
shall
pay
more
than
a
Moiety
of
the
Joynt
debts
,
then
such
Partner
is
to
come
in
before
the
said
Commissioners
,
and
be
admitted
as
a
Creditor
for
what
he
shall
so
pay
over
and
above
his
Moiety
,
and
decreed
accordingly
.
Charles
Howard
contra
le
Duke
de
Norfolk
&
al'
,
34
Car.
2.
fo.
722.
THe
Plaintiff
by
his
Bill
seeks
to
have
Execution
of
a
Trust
of
a
Term
of
200
years
of
the
Barony
of
Grostock
,
The
Case
was
this
.
The
Earl
of
Arundel
(
the
Duke
of
Norfolks
Father
)
by
Lease
and
Release
,
Perpetuities
,
or
Entailing
a
Term
for
years
with
Remainders
over
.
Anno
1647.
setled
the
Barony
of
G.
and
other
Lands
to
himself
for
life
,
then
to
the
Countess
Elizabeth
his
Wife
for
life
,
and
after
her
decease
,
there
is
a
Term
limited
to
the
Lord
Dorchester
,
and
other
Trustees
for
200
years
,
under
a
Trust
to
be
declared
in
a
deed
of
the
same
date
,
with
the
Release
;
and
the
Limitation
of
the
Inheritance
,
after
the
Term
of
200
years
,
is
first
to
Henry
Howard
,
now
Duke
of
Norfolk
,
and
the
Heirs
Males
of
his
Body
,
then
to
Mr.
Charles
Howard
,
the
now
Plaintiff
(
Brother
of
the
said
Henry
)
and
so
to
all
his
Brothers
Successively
in
Tail
Male
remainder
over
.
Then
by
the
said
other
Deed
,
the
Earl
declares
the
Trust
of
the
Term
of
200
years
,
and
that
deed
in
the
reciting
part
declares
,
that
it
was
intended
the
said
Term
should
attend
the
Inheritance
and
the
profits
should
go
to
such
persons
,
and
in
such
manner
as
was
therein
after
limited
(
viz.
)
to
Henry
Howard
now
Duke
of
Norfolk
,
and
the
Heirs
Males
of
his
Body
,
so
long
as
Lord
Thomas
,
Lord
Maltrevers
Eldest
Son
of
the
said
Earl
of
Arundell
or
any
Issue
Male
of
his
Body
should
be
living
;
but
in
case
he
should
die
without
Issue
Male
in
the
life-time
of
Henry
Howard
,
not
leaving
his
Wife
enseint
with
a
Son
,
or
in
case
after
the
death
of
Thomas
,
without
Issue
Male
,
the
Honour
of
the
Earldom
of
Arundel
should
descend
to
Henry
Howard
,
then
Henry
Howard
and
his
Heirs
to
be
excluded
of
the
Trust
,
and
then
it
should
be
to
(
Charles
the
Plaintiff
)
and
the
Heirs
Males
of
his
Body
,
remainder
in
like
manner
to
other
Brothers
.
After
this
,
the
Contingency
doth
happen
,
for
Thomas
Duke
of
Norfolk
dies
without
Issue
,
and
the
Earldom
of
Arundel
,
as
well
as
the
Dukedom
of
Norfolk
,
descended
to
Henry
now
Duke
of
Norfolk
,
by
Thomas
his
death
without
Issue
,
presently
upon
this
,
the
Marquess
of
Dorchester
the
Surviving
Trustee
,
Assigns
the
Term
to
one
Marriott
,
he
Assigns
it
to
the
now
Duke
of
Norfolk
,
and
the
Duke
suffers
a
Recovery
,
to
the
use
of
him
and
his
Heirs
,
and
the
Plaintiffs
Bill
is
to
have
execution
of
the
Trust
of
this
Term
,
to
the
use
of
himself
and
his
Heirs
Males
of
his
Body
.
The
Defendants
insist
,
That
by
the
Assignment
by
Marriott
,
to
my
Lord
Duke
Henry
,
the
Term
was
Surrendred
,
and
quite
gone
,
that
the
Common
Recovery
which
barred
the
remainders
,
which
the
other
Brothers
had
,
would
also
be
a
Bar
to
the
Trust
of
this
Term
,
and
that
the
trust
of
a
Term
to
Henry
and
the
Heirs
Males
of
his
Body
,
until
by
the
death
of
Thomas
without
Issue
,
the
Earldom
should
descend
upon
him
,
and
after
that
,
to
Charles
and
the
Heirs
Males
of
his
Body
,
was
a
void
Limitation
of
the
remainder
to
Charles
.
The
Plaintiff
insists
,
Though
the
Term
by
the
Survivor
is
gone
,
and
Merged
in
the
Inheritance
,
yet
the
Trust
of
that
Term
remains
in
Equity
;
That
this
is
not
a
Term
that
attends
the
Inheritance
,
but
it
s
a
Term
in
gross
,
and
so
not
barred
by
the
Recovery
,
and
that
the
Limitation
of
the
remainder
in
Contingency
,
is
good
in
Law
,
and
Relief
ought
to
be
had
in
this
Court
.
The
Lord
Chancellor
Nottingham
(
the
Case
being
of
great
Consequence
)
calls
the
Judges
to
his
Assistance
,
(
viz.
)
the
Lord
Chief
Justice
Pemberton
,
the
Lord
Chief
Justice
North
,
and
the
Lord
Chief
Baron
Mountague
,
and
they
made
one
single
point
in
the
case
.
Whether
this
Contingent
Trust
of
a
Term
limited
to
the
Plaintiff
Charles
,
and
the
Heirs
of
his
Body
,
upon
the
dying
of
Thomas
without
Issue
Male
,
whereby
the
Honour
did
descend
to
Henry
,
be
good
in
point
of
Creation
and
Limitation
;
for
as
for
the
Recovery
,
if
this
be
not
a
good
Limitation
in
point
of
Creation
,
the
Recovery
will
do
nothing
,
so
that
supposeth
it
to
go
along
with
the
Inheritance
,
and
if
this
take
effect
,
then
it
will
suffer
no
prejudice
by
the
Recovery
:
And
as
for
the
Assignment
by
Marriott
to
the
Duke
,
if
this
Court
decree
it
for
the
Plaintiff
,
then
it
is
a
Breach
of
Trust
,
and
then
he
must
answer
for
it
,
and
so
must
the
Duke
,
for
it
is
a
Surrender
to
a
person
,
who
had
notice
of
the
Trust
:
If
for
the
Defendant
,
then
it
is
of
no
weight
.
So
that
the
whole
rests
upon
the
first
single
point
(
viz.
)
whether
it
be
a
good
Limitation
upon
the
Contingency
to
Charles
,
or
as
they
call
it
,
Springing
Trust
.
a
springing
Trust
.
And
the
said
three
Judges
were
all
of
Opinion
,
that
it
was
a
void
Limitation
,
and
that
it
ought
to
be
Decreed
for
the
Defendant
.
They
said
,
Term
in
gross
,
and
a
Term
attending
the
Inheritance
the
difference
there
is
great
difference
as
to
the
Limitation
of
Terms
that
are
in
gross
,
and
Terms
that
attend
the
Inheritance
,
as
to
Terms
in
Gross
,
they
are
not
capable
of
Limitation
to
one
,
after
the
death
of
another
,
without
Issue
;
but
in
Termsattendant
upon
an
Inheritance
,
there
may
be
such
a
Limitation
,
if
the
Inheritance
be
so
limited
,
and
not
else
:
Now
the
Term
is
capable
of
a
Limitation
to
Henry
,
and
the
Heirs
Males
of
his
Body
,
and
for
want
of
such
Issue
to
Charles
,
and
the
Heirs
Males
of
his
Body
;
because
it
hath
an
Inheritance
to
support
it
:
But
now
to
put
another
limitation
upon
it
,
that
upon
the
dying
of
Thomas
without
Issue
,
whereby
the
Earldom
shall
descend
,
this
shall
go
over
to
Charles
,
that
cannot
be
,
for
it
hath
no
Freehold
to
support
it
,
and
so
it
s
a
Term
in
gross
;
further
,
there
cannot
by
the
Rules
of
Law
or
Equity
,
be
a
Remainder
for
years
,
of
a
Term
limited
after
an
Estate
Tail
,
neither
directly
,
nor
upon
Contingency
;
as
in
Burges's
Case
,
but
the
Law
will
allow
a
remainder
directly
upon
an
Estate
for
life
;
so
likewise
upon
a
Contingency
,
if
that
were
to
happen
during
the
Continuance
of
the
particular
Estate
:
But
this
case
is
a
step
further
,
and
not
to
be
allowed
;
they
relied
chiefly
upon
Child
and
Bayles
Case
,
which
was
put
thus
by
Chief
Baron
Mountague
,
a
Devise
by
A.
of
a
Term
to
William
his
Eldest
Son
,
and
his
Assigns
,
and
if
he
die
without
Issue
,
then
to
Thomas
his
youngest
Son
.
It
was
Judged
in
the
Exchequer
Chamber
,
to
be
a
void
remainder
,
because
thereby
a
perpetuity
would
ensue
,
though
it
was
argued
in
that
case
,
that
it
was
given
upon
a
Contingency
to
the
younger
Son
,
which
would
soon
be
Determined
,
and
end
in
a
short
time
.
Chief
Baron
Mountague
put
this
for
Law
,
a
Term
may
be
limited
to
one
,
and
the
Heirs
Males
of
his
Body
,
upon
a
Contingency
to
happen
first
with
Limitation
over
,
if
that
Contingency
do
not
happen
,
it
is
a
good
Limitation
,
as
if
a
Term
be
limited
to
the
Wife
for
Life
,
and
then
to
the
Eldest
Son
,
if
he
over-live
his
Mother
,
and
the
Heirs
Males
of
his
Body
,
the
remainder
over
to
a
younger
Son
,
if
the
Eldest
Son
dye
in
the
life
of
the
Mother
,
the
Limitation
to
the
second
Son
may
be
good
,
but
if
there
be
an
Instant
Estate
Tail
created
of
a
Term
,
tho
there
be
a
Contingency
as
to
the
expectation
of
him
in
remainder
,
yet
this
is
such
a
Total
Disposition
of
a
Term
,
as
after
which
,
no
Limitation
of
a
Term
can
be
;
and
so
the
Judges
were
of
Opinion
,
that
the
Plaintiff
had
no
Right
to
the
Term
,
but
the
decree
ought
to
be
for
the
Defendant
.
The
Lord
Chancellor
Nottingham
differed
from
the
Judges
,
and
Decreed
for
the
Plaintiff
.
He
put
some
steps
or
Preliminaries
,
which
he
agreed
with
them
,
and
which
were
clear
.
1.
That
the
Term
in
question
,
though
it
were
attendant
on
the
Inheritance
at
first
,
yet
upon
the
hapning
of
the
Contingency
,
it
s
become
a
Term
in
gross
.
2.
That
the
Trust
of
a
Term
in
gross
,
can
be
limited
no
otherwise
in
Equity
,
than
the
Estate
of
a
Term
in
gross
can
be
limited
in
Law
.
3.
The
legal
Estate
of
a
Term
for
years
,
whether
it
be
a
long
or
a
short
Term
,
cannot
be
limited
to
any
Man
in
Tail
,
with
the
remainder
over
to
another
after
his
death
without
Issue
,
this
is
a
direct
perpetuity
.
4.
If
a
Term
be
limited
to
a
Man
and
his
Issue
,
and
if
that
Issue
die
without
Issue
,
the
remainder
over
,
the
Issue
of
that
Issue
takes
no
Estate
,
and
yet
because
the
remainder
over
cannot
take
place
till
the
Issue
of
that
Issue
fail
,
that
remainder
is
void
too
.
Reeves
Case
.
5.
If
a
Term
be
limited
to
a
Man
for
his
life
,
and
after
to
his
First
,
Second
,
and
Third
Son
in
Tail
Successively
,
and
for
default
of
such
Issue
the
remainder
over
,
though
the
Contingency
never
happen
,
yet
the
remainder
is
void
,
though
there
were
never
a
Son
born
to
him
;
that
looks
like
a
perpetuity
,
Sir
William
Buckhursts
Case
.
6.
One
Case
more
,
and
that
is
Burgesss
Case
;
A
Term
is
limited
to
one
for
life
,
with
Contingent
remainders
to
his
Sons
in
Tail
,
with
remainder
over
to
his
Daughter
,
though
he
had
no
Son
,
yet
because
it
was
foreign
and
distant
,
to
expect
a
remainder
after
the
death
of
a
Son
,
to
be
born
without
Issue
,
that
having
a
prospect
of
a
perpetuity
,
was
adjudged
void
.
7.
If
a
Term
be
Devised
,
or
Trust
of
a
Term
limited
to
one
for
life
,
with
twenty
remainders
for
life
Successively
,
and
all
the
Persons
in
Esse
at
the
time
of
such
limitation
,
these
are
all
good
remainders
.
8.
A
Term
is
Devised
to
one
for
18.
years
,
after
to
C.
his
Eldest
Son
for
life
,
and
then
to
the
Eldest
Issue
Male
of
C.
for
life
,
though
C.
had
not
any
Issue
Male
at
the
time
of
the
Devise
,
or
death
of
the
Devisor
,
but
before
the
death
of
C.
it
s
good
,
being
a
Contingency
that
would
speedily
be
worn
out
.
Cotton
and
Heaths
Case
;
for
there
may
be
a
Possibility
upon
a
Possibility
,
and
a
Contingency
upon
a
Contingency
,
and
in
truth
every
Executory
devise
is
so
;
and
therefore
the
contrary
Rule
given
by
Lord
Popham
,
in
the
Rector
of
Chedingtons
Case
,
is
not
Reason
.
These
things
were
agreed
by
all
.
But
the
Point
is
:
The
Trust
of
a
term
for
200
years
is
limited
to
Henry
in
Tail
,
provided
if
Thomas
die
without
Issue
in
the
life
of
Henry
,
so
that
the
Earldom
shall
descend
upon
Henry
,
then
to
go
to
Charles
in
Tail
,
and
whether
this
be
a
Limitation
to
Charles
in
Tail
is
the
Question
.
My
Lord
Chancellor
conceived
it
a
good
Limitation
as
a
springing
Trust
,
to
arise
upon
a
Contingency
,
and
which
is
not
of
a
remote
or
long
Consideration
.
As
for
the
Legal
Reasons
of
this
Opinion
,
they
were
these
:
1.
Many
Men
have
no
Estates
,
but
what
consist
in
Leases
for
years
.
Now
it
would
be
absurd
to
say
,
That
he
who
has
no
other
Estate
than
what
consists
in
Leases
for
years
,
should
be
uncapable
to
provide
for
the
Contingencies
of
his
own
Family
,
though
they
are
directly
in
his
immediate
prospect
,
he
shall
not
make
provisions
for
Wife
and
Children
upon
Marriage
.
2.
It
was
the
Opinion
of
the
Lord
Chief
Justice
Pemberton
,
That
had
it
been
thus
Penned
it
had
been
good
.
If
Thomas
die
without
Issue
Male
,
living
Henry
,
so
that
the
Earldom
descend
upon
Henry
,
then
the
200
years
limited
to
him
and
his
Issue
shall
cease
;
but
then
a
new
Term
of
200
years
shall
arise
and
be
limited
to
the
same
Trustees
,
for
the
benefit
of
Charles
in
Tail
.
Now
what
difference
is
there
,
why
a
man
may
not
raise
a
new
springing
Trust
upon
the
same
Term
,
as
well
as
a
new
springing
Term
upon
the
same
Trust
?
It
is
true
,
in
6
Ed.
6.
in
the
time
of
Lord
Chancellor
Rich
all
the
Judges
delivered
their
Opinion
;
If
a
Term
of
years
be
devised
to
one
,
provided
if
Devisee
die
,
living
I.
S.
then
to
go
to
I.
S.
is
absolutely
void
.
But
in
19
Eliz.
Dier
fo.
277
,
328.
it
was
held
by
the
Judges
to
be
a
good
Remainder
,
Executory
Remainder
.
and
that
was
the
first
time
that
an
Executory
Remainder
of
a
Term
was
held
to
be
good
.
As
for
Child
and
Bayles
Case
,
the
Case
is
truly
Reported
by
Crook
;
A
Term
of
70
years
is
devised
to
Dorothy
for
life
,
then
to
William
and
his
Assigns
all
the
rest
of
the
Term
,
provided
that
if
William
die
without
Issue
living
at
the
time
of
his
death
,
then
to
Thomas
,
which
is
in
effect
the
present
Case
;
but
there
was
more
in
it
;
William
had
the
whole
Term
to
him
and
his
Assigns
.
Dorothy
was
Executrix
,
and
granted
the
Lease
to
William
:
And
the
Record
goes
further
,
After
the
death
of
Thomas
without
Issue
,
it
was
to
go
the
Daughter
,
which
was
a
plain
affectation
of
a
Perpetuity
;
but
however
this
Case
is
contradicted
by
other
Resolutions
.
Cotton
and
Heath
before
cited
,
and
Wood
and
Sanders
in
this
Court
,
which
was
this
,
a
long
Lease
is
limited
and
declared
thus
:
To
the
Father
for
60
years
,
if
he
lived
so
long
,
then
to
the
Mother
for
60
years
if
she
lived
so
long
,
then
to
John
and
his
Executors
if
he
survived
his
Father
and
Mother
,
and
if
he
died
in
their
life
time
,
having
Issue
,
then
to
his
Issue
;
but
if
he
die
without
Issue
,
living
the
Father
or
Mother
,
then
the
Remainder
to
Edward
in
Tail
;
John
died
without
Issue
in
the
life
time
of
the
Father
and
Mother
:
It
was
Resolved
by
Lord
Keeper
Bridgman
,
assisted
by
two
Judges
.
That
the
Remainder
to
Edward
was
good
:
The
whole
Term
had
vested
in
John
,
if
he
had
survived
;
yet
the
Contingency
never
hapning
,
and
so
wearing
out
in
the
compass
of
two
Lives
in
being
,
the
Remainder
over
to
Edward
might
well
be
limited
upon
it
.
Object
.
Where
will
you
stop
,
if
not
at
Child
and
Bayles
Case
?
Resp.
Every
where
,
where
there
is
apparent
danger
of
a
Perpetuity
;
but
so
is
not
this
Case
.
The
Equitable
Reasons
were
:
1.
It
was
Prudence
in
the
Earl
to
take
care
,
that
when
the
Honour
descended
upon
Henry
,
a
little
better
support
should
be
given
to
Charles
,
who
was
the
next
Man
,
and
trod
upon
the
Heels
of
the
Inheritance
.
2.
It
was
very
probable
and
almost
morally
certain
that
Thomas
would
die
without
Issue
,
he
being
not
of
a
good
state
of
Body
or
Mind
,
and
while
such
they
were
circumspect
that
he
should
not
Marry
.
3.
It
s
an
hard
thing
for
a
Son
to
tell
his
Father
,
That
the
provision
he
has
made
for
his
younger
Brothers
is
void
in
Law
:
But
it
is
much
harder
for
him
to
tell
him
so
in
Chancery
,
for
there
no
Conveyance
is
ever
to
be
set
aside
,
where
it
can
be
supported
by
a
reasonable
Construction
.
The
Law
doth
in
many
Cases
allow
of
a
future
Contingent
Estate
to
be
Limited
,
where
it
will
not
allow
a
present
Remainder
to
be
Limited
:
A
man
hath
an
Estate
Limited
to
him
his
Heirs
and
Assigns
(
this
is
a
Fee-simple
;
)
but
if
he
die
without
Issue
,
living
I.S.
or
in
such
a
short
time
to
I.
D.
this
is
good
.
Though
it
be
impossible
to
limit
a
Remainder
of
a
Fee
upon
a
Fee
,
yet
it
s
not
impossible
to
limit
a
Contingent
Fee
upon
a
Fee
.
Pell
and
Brownes
Case
,
If
a
Lease
comes
to
be
limited
in
Tail
,
the
Law
allows
not
a
present
Remainder
to
be
limited
thereupon
;
yet
it
will
allow
a
future
Estate
arising
upon
a
Contingency
only
,
and
that
to
wear
out
in
a
short
time
.
The
Limitation
in
Wood
and
Sanders
Case
is
after
an
express
Entail
,
and
yet
Adjudged
good
,
because
it
was
a
Remainder
upon
a
Contingency
that
was
to
happen
during
two
Lives
,
which
was
but
a
short
Contingency
,
and
the
Law
might
very
well
expect
the
hapning
of
it
:
But
our
Case
is
stronger
,
because
it
is
only
during
one
life
.
It
was
decreed
the
Plaintiff
should
enjoy
this
Barony
for
the
residue
of
the
Term
,
and
the
Defendants
to
make
him
a
Conveyance
accordingly
,
and
to
account
with
the
Plaintiff
for
the
Profits
received
since
the
death
of
Duke
Thomas
,
and
which
they
or
any
of
them
might
have
received
without
wilful
default
.
The
Duke
of
Norfolk
exhibited
a
Bill
of
Review
in
Chancery
,
to
which
Charles
Howard
put
in
a
Plea
and
Demurrer
,
which
was
Argued
before
Lord
Keeper
North
,
and
he
Over-ruled
the
said
Plea
and
Demurrer
,
and
Reverst
the
Lord
Chancellors
Decree
.
But
afterwards
this
Decree
was
Reverst
in
Parliament
,
and
the
first
Decree
affirmed
in
behalf
of
Charles
Howard
.
Turner
contra
Crane
,
34
Car.
2.
fo.
668.
THat
Robert
Newell
and
his
Wife
,
Copyhold
Mortgage
.
for
220
l.
paid
by
the
Plaintiffs
Wife
Susan
,
then
a
Widow
,
did
Surrender
the
Copyhold
Premisses
to
the
use
of
the
said
Susan
and
her
Heirs
,
on
condition
that
the
said
Robert
Newell
and
his
Wife
's
paying
to
the
said
Susan
,
her
Executors
and
Assigns
230
l.
in
March
next
,
after
,
then
the
Mortgage
to
be
void
,
and
the
Mony
not
being
paid
,
the
said
Susan
was
admitted
to
the
premisses
,
and
afterwards
Marryed
the
Plaintiff
,
and
they
received
the
profits
of
the
premisses
;
and
afterwards
Susan
died
Intestate
,
no
ways
indebted
,
leaving
Susan
her
Daughter
by
the
Plaintiff
,
her
Heir
an
Infant
,
and
the
said
Susan
the
Infant
was
admitted
by
the
Plaintiff
her
Guardian
,
Admittance
of
Guardian
.
as
Heir
to
Susan
the
Mother
,
who
received
the
profits
,
and
died
,
leaving
the
Defendant
Jane
Crane
her
Aunt
as
Heir
,
and
she
was
admitted
,
and
the
Plaintiff
on
Susan
the
Daughters
death
,
took
Administration
of
Susan
the
Mothers
Estate
,
and
claims
the
Mortgaged
Lands
,
insisting
,
That
though
the
Defendant
Jane
was
Heir
to
Susan
the
Daughter
,
who
was
Heir
to
Susan
the
Mother
,
yet
the
premisses
being
a
Mortgage
,
belonged
to
him
as
Administrator
to
Susan
the
Mother
.
This
Court
would
consider
of
this
Case
,
and
of
Cases
of
Mortgages
in
Fee
,
where
no
Covenant
is
made
for
the
payment
of
the
Mortgage-Mony
to
the
Executor
or
Administrator
,
and
no
debts
owing
by
the
Mortgagee
,
whether
the
Heir
or
Administrator
of
the
Mortgagee
shall
have
the
Lands
.
This
Court
upon
reading
Presidents
declared
,
The
Heir
of
the
Mortgagee
in
Fee
(
there
being
no
debts
owing
)
shall
have
the
Redemption
Mony
,
and
I
not
the
Administrator
.
That
he
was
fully
satisfied
that
the
Plaintiff
as
Administrator
to
the
said
Susan
ought
not
to
have
the
mortgaged
premisses
from
the
Defendant
Jane
Crane
,
the
Heir
of
the
Heir
of
the
said
Mortgagee
,
but
the
said
Jane
ought
to
enjoy
the
same
,
and
dismist
the
Plaintiffs
Bill
.
Dowse
contra
Percivall
,
34
Car.
2.
fo.
186.
THe
Plaintiffs
Father
,
John
Dowse
,
Lessee
purchased
the
Inheritance
in
Trustees
Names
,
and
dies
Intestate
:
This
Lease
shall
attend
the
Inheritance
.
took
a
Lease
of
the
City
,
and
afterwards
purchased
the
Inheritance
in
Trustees
Names
,
for
him
and
his
Heirs
,
and
the
said
Dowse
died
Intestate
,
the
Defendant
his
Wife
(
as
Administratrix
)
claims
this
Lease
to
belong
to
his
personal
Estate
.
This
Court
decreed
it
,
to
attend
the
Inheritance
.
Magistr'
,
&c.
Vniversit'
Colleg
'
in
Oxon
'
contra
Foxcroft
,
34
Car.
2.
fo.
522.
THe
Bill
is
to
Revive
a
former
Decree
,
made
against
the
Defendants
Father
,
whereby
the
said
Defendants
Father
was
decreed
to
pay
the
Plaintiff
2000
l.
and
Interest
.
To
which
the
Defendant
demurs
,
A
Decree
and
Sequestration
against
one
,
who
dies
,
this
shall
not
be
Revived
against
his
Heir
or
Real
Estate
,
though
it
were
for
Mony
payable
on
the
behalf
of
a
Charity
.
for
that
the
said
Defendants
Father
against
whom
the
said
Decree
and
a
Sequestration
is
had
is
dead
,
whereupon
the
Sequestration
being
granted
purely
for
his
Contempt
of
a
Decree
,
which
was
for
a
personal
duty
only
,
and
determined
by
his
death
,
and
therefore
ought
not
to
be
Revived
against
the
Defendant
his
Heirs
,
nor
is
his
Real
Estate
in
the
hands
of
his
Heir
chargeable
with
the
Personal
duty
,
or
Decree
for
a
Personal
duty
.
The
Plaintiff
insisted
,
This
is
a
Case
of
Extremity
,
being
on
the
behalf
of
a
Charity
,
and
the
Defendant
endeavours
to
deprive
the
Plaintiff
of
2000
l.
given
for
the
purchasing
a
100
l.
per
Annum
,
for
Maintenance
of
two
Fellows
of
a
Colledge
.
His
Lordship
declared
,
That
the
Decree
being
for
a
personal
Duty
,
ought
not
to
be
revived
against
the
Defendant
as
Heir
,
and
allowed
the
Demurrer
,
and
dismist
the
Bill
.
Domina
Dacres
contra
Chute
,
34
Car.
2.
fo.
861.
THe
matter
controverted
is
touching
Costs
,
Costs
.
the
Plaintiff
had
a
Decree
against
the
Defendants
Father
deceased
,
and
that
the
Plaintiff
should
have
her
Costs
of
that
Suit
,
and
the
said
Cost
being
taxed
,
they
became
part
of
that
Decree
,
as
much
as
if
they
had
been
named
in
the
Decree
in
certainty
.
The
Defendant
insisted
,
That
upon
the
first
hearing
Costs
were
only
reserved
till
after
Report
,
and
upon
hearing
Exceptions
to
that
Report
,
nothing
was
said
touching
Costs
,
but
in
the
Order
of
confirming
the
last
Report
in
that
Cause
,
Costs
are
directed
to
be
taxed
,
but
the
Defendants
Father
by
name
was
to
pay
them
,
and
by
the
Decree
as
it
is
inrolled
,
the
Reversion
of
the
Lands
in
question
,
was
directed
to
stand
charged
with
the
Debts
and
Damages
,
but
not
with
the
Costs
,
and
the
Costs
were
given
as
a
personal
thing
,
and
died
with
the
Defendants
said
Father
,
and
cannot
affect
the
said
Estate
which
was
the
Grandfathers
,
and
the
Plaintiff
could
not
have
revived
her
Suit
for
the
Costs
alone
.
This
Court
declared
,
A
Suit
cannot
be
revived
for
Costs
alone
where
no
duty
is
decreed
.
That
tho'
it
may
be
true
,
that
a
Suit
cannot
be
revived
for
Costs
alone
,
where
there
is
no
duty
decreed
,
because
it
is
the
Latches
of
the
party
,
not
to
get
them
taxed
where
there
is
nothing
else
in
demand
:
Yet
when
there
is
a
duty
decreed
,
and
Costs
awarded
by
the
same
Decree
,
which
is
signed
and
inrolled
in
the
life
of
the
party
,
it
would
be
unreasonable
,
that
by
the
Defendants
delaying
the
Account
the
Costs
should
be
lost
,
which
could
not
properly
be
taxed
till
the
final
Decree
,
and
when
the
charge
of
Suit
is
at
an
end
:
And
this
Court
further
declared
,
That
the
Costs
when
taxed
may
be
recovered
out
of
the
Assets
,
as
in
the
Case
of
Heirs
and
Executors
at
the
Common
Law
,
and
this
Court
looks
upon
the
wording
of
the
Decree
in
that
manner
,
to
proceed
from
the
difference
between
the
Debt
and
Costs
,
the
Debt
not
being
chargable
upon
the
person
at
all
,
and
the
Costs
chargable
upon
the
person
as
well
as
the
Assets
,
and
it
were
unjust
to
expound
the
Decree
,
by
charging
the
person
to
discharge
the
Assets
from
payment
of
Costs
,
to
which
they
are
naturally
chargable
,
unless
they
have
been
paid
by
the
Defendants
Father
.
This
Court
therefore
thought
fit
,
Costs
from
their
time
of
being
Taxed
to
carry
Interest
,
and
shall
charge
and
be
recovered
out
of
the
Assets
.
that
the
Costs
from
the
time
that
they
were
taxed
should
carry
Interest
,
and
charge
the
Assets
by
discent
,
and
ordered
the
Account
to
be
taken
by
the
Master
accordingly
.
Windham
contra
Jennings
,
34
Car.
2.
fo.
776.
THat
Sir
George
Crook
Mortgaged
Lands
in
28
Car.
2.
Mortgage
for
2000
l.
before
which
time
the
Mortgagor
borrowed
of
him
that
was
after
the
Mortgagee
300
l.
which
was
agreed
to
be
secured
by
the
said
Morgage
,
both
sums
must
be
paid
upon
the
Redemption
.
to
the
Defendant
for
2000
l.
and
died
,
and
the
Plaintiff
being
his
Heir
prays
a
Redemption
.
But
the
Defendant
insists
,
That
the
said
Sir
George
Crook
before
the
Mortgage
borrowed
of
the
Defendant
300
l.
on
Bond
,
(
viz.
)
in
1672
,
and
the
Defendant
insists
,
it
was
agreed
to
be
secured
also
by
the
said
Mortgage
,
but
the
Plaintiff
is
not
willing
to
pay
that
;
only
will
redeem
the
Mortgage
.
This
Court
decreed
,
the
Plaintiff
to
pay
to
the
Defendant
both
the
2000
l.
and
the
300
l.
and
then
the
Plaintiff
to
redeem
.
Noell
&
al'
contra
Robinson
,
34
Car.
2.
fo.
168
&
178.
THe
Case
being
(
viz.
)
That
Sir
Martin
Noel
deceased
Father
of
the
Plaintiff
,
Bill
to
answer
to
Devisees
.
being
seised
,
in
Fee
of
a
moyety
of
a
Plantation
in
the
Barbados
,
called
Horn
hall
with
the
appurtenances
,
and
being
legally
intituled
by
the
Laws
and
Customs
of
the
said
Island
,
to
dispose
thereof
,
by
his
Will
in
writing
,
devised
the
same
unto
the
Plaintiffs
Nathaniel
,
Grace
,
Elizabeth
and
one
Theodorus
Noell
,
and
Sir
Martin
by
his
Will
appointed
the
Defendant
Robinson
to
supply
the
said
Plantation
with
all
necessaries
during
the
Minorities
of
the
Plaintiffs
,
and
to
receive
the
profits
in
trust
for
the
Plaintiffs
,
and
for
his
care
therein
gives
him
an
allowance
and
made
his
Son
Martin
Noell
and
Theodorus
Noell
deceased
,
and
the
Defendant
Robinson
his
Executors
,
and
the
Defendant
Robinson
proved
the
Will
,
and
took
on
him
the
Execution
thereof
,
and
management
of
the
Plantation
,
and
assented
to
the
Legacy
and
Bequests
of
the
Plaintiffs
,
and
in
performance
of
such
Trust
and
Assent
leased
the
premisses
to
one
John
Worsam
for
20
years
,
at
20000
l.
weight
of
Sugars
Rent
per
Annum
,
in
the
Trust
for
the
Plaintiffs
the
Devisees
,
and
since
have
conveyed
away
the
same
to
one
Falkner
and
others
to
defeat
the
Plaintiffs
,
so
the
Bill
is
to
call
the
Defendant
Robinson
and
Falkner
to
Account
for
the
profits
of
the
premisses
,
and
to
convey
their
Interest
to
the
Plaintiffs
.
The
Defendants
insists
,
That
by
the
Custom
of
the
said
Island
of
Barbado's
,
where
the
said
premisses
are
,
the
said
Sir
Martin
had
not
power
to
make
such
Devise
of
the
premisses
to
the
Plaintiffs
,
he
being
then
much
indebted
to
several
persons
,
and
the
said
Defendant
Robinson
had
paid
several
debts
for
him
;
and
insists
,
Thar
the
said
Lease
made
to
Worsam
,
was
done
without
due
consideration
,
and
not
with
any
intent
thereby
to
assent
to
the
Legacy
to
the
Plaintiffs
,
and
deprive
the
Creditors
of
their
just
debts
,
or
in
any
sort
to
exempt
the
Estate
there
from
,
nor
had
no
reason
so
to
do
,
he
being
bound
with
the
Testator
,
in
several
Securities
to
several
persons
in
several
sums
of
Mony
,
and
imployed
all
the
profits
he
received
,
as
also
500
and
odd
pounds
for
Worsams
Lease
,
for
the
payment
of
Sir
Martins
debts
,
amounting
to
30000
l.
and
so
the
Testators
Estate
ought
to
pay
debts
,
and
not
to
be
subject
to
his
Will
,
and
the
said
Defendant
believing
the
premisses
to
be
as
Lands
of
Inheritance
,
made
the
said
Lease
to
Worsam
a
Creditor
of
Sir
Martins
,
but
is
since
advised
it
is
a
Chattel
,
and
lyable
to
the
payment
of
his
debts
.
But
the
Plaintiffs
insisted
,
That
by
the
said
Lease
to
Worsam
,
and
reservation
of
the
Rent
thereon
to
himself
in
Trust
for
the
Plaintiffs
,
he
had
placed
the
Estate
in
such
manner
,
that
the
same
could
never
by
any
subsequent
Act
come
into
the
Administration
of
the
Estate
of
Sir
Martin
,
What
Act
amounts
to
an
Assent
of
a
Legacy
.
and
that
every
Act
of
the
Defendant
Robinson
was
a
plain
Assent
to
the
Legacy
to
the
Plaintiffs
,
and
it
is
plain
,
the
premisses
were
devisable
,
and
so
the
Plaintiffs
Title
plain
and
undoubted
,
and
the
Plaintiffs
ought
to
have
a
Decree
against
the
Defendant
,
to
Account
to
them
for
the
said
Estate
,
and
ought
to
have
the
benefit
of
the
said
Lease
.
The
Defendant
further
insisted
,
That
by
such
imprudent
Act
as
aforesaid
,
he
ought
not
to
be
Devested
of
the
Estate
,
but
it
ought
to
go
to
pay
Sir
Martins
debts
.
This
Court
declared
,
That
by
the
said
Clause
in
the
Lease
to
Worsam
,
the
Defendant
had
Assented
to
the
Plaintiffs
Legacies
,
given
them
by
the
Will
of
their
Father
,
and
that
the
Devise
by
the
Will
was
a
good
Devise
,
Devise
of
a
Plantation
in
Barbados
.
and
that
the
premisses
did
well
pass
thereby
;
and
that
the
said
Act
of
the
Defendant
Robinson
being
voluntary
,
had
put
the
Estate
out
of
the
power
of
the
Creditors
of
Sir
Martin
,
or
out
of
the
power
of
any
Administrator
,
de
bonis
non
of
him
,
Decree
the
Plaintiffs
to
have
the
benefit
,
and
the
Defendants
to
assign
.
and
decreed
the
Plaintiffs
to
have
the
benefit
of
the
premisses
,
and
of
the
Lease
to
Worsam
,
and
the
Defendants
to
Assign
their
Interests
to
the
Plaintiffs
accordingly
.
But
the
said
Defendant
desiring
a
re-hearing
of
the
Cause
,
which
was
on
the
20th
of
Nov.
1682.
when
the
Defendant
insisted
,
That
the
said
Lease
could
not
be
an
Assent
,
for
that
the
Defendant
Robinson
then
claimed
the
premisses
,
not
as
Executor
,
or
otherwise
than
only
as
Trustee
for
the
Devisees
,
whose
Inheritance
he
then
took
the
same
to
be
,
and
not
as
personal
Estate
,
upon
which
and
other
grounds
the
Defendant
insists
,
the
said
Rent
and
Reversion
of
the
premisses
,
expectant
on
the
Determination
of
the
Lease
was
,
and
ought
to
be
of
the
Testators
personal
Estate
,
and
to
go
in
the
ordinary
course
of
Administration
,
and
to
an
Administrator
de
bonis
non
,
and
be
lyable
to
debts
.
His
Lordship
notwithstanding
what
was
now
urged
by
the
Defendant
declared
,
Decree
by
Finch
.
he
saw
no
cause
to
alter
the
former
Decree
,
but
confirmed
the
same
.
This
Decree
reversed
by
the
Lord
Keeper
North
,
The
Decree
reversed
by
North.
and
in
1683
,
fo.
168.
he
heard
this
Cause
upon
the
whole
merits
,
and
ordered
an
Account
.
And
in
1686
,
Finch
,
his
Decree
confined
by
Jefferys
.
The
Lord
Chancellor
Jefferys
reheard
this
Cause
upon
the
Merits
,
and
confirmed
my
Lord
Chancellor
Finch's
Decree
,
and
discharged
my
Lord
North's
Decree
.
Benson
contra
Bellasis
,
34
Car.
2.
fo.
848.
THis
Cause
having
received
a
hearing
before
the
Lord
Chancellor
Nottingham
,
11
July
.
33
Car.
2.
who
made
a
Decree
for
excluding
the
Defendant
Dame
Dorothy
,
Administratrix
of
Robert
Benson
the
Plaintiffs
Father
,
from
having
any
part
of
his
personal
Estate
,
and
the
said
Cause
being
heard
10
July
,
35
Car.
2.
before
the
Lord
Keeper
North
,
who
decreed
the
said
Defendant
Dame
Dorothy
,
to
retain
to
her
own
use
one
third
part
of
the
said
personal
Estate
of
the
said
Robert
Benson
,
and
the
said
Cause
being
again
reheard
this
day
by
the
Lord
Chancellor
Jefferys
.
The
Case
being
,
that
the
said
Robert
Benson
on
his
Marriage
with
the
Defendant
Dame
Dorothy
,
for
the
setling
of
a
Joynture
on
the
said
Dorothy
,
in
full
of
all
Joyntures
,
Dowers
and
Thirds
,
which
she
might
claim
out
of
his
real
and
personal
Estate
,
conveyed
Lands
to
the
use
of
himself
for
life
,
and
after
to
the
said
Dorothy
for
life
in
full
of
all
Joynturs
,
&c.
as
is
aforesaid
,
with
this
Proviso
,
Settlement
on
Marriage
That
if
the
said
Dorothy
,
should
after
the
death
of
the
said
Robert
Benson
,
have
or
claim
to
have
,
or
should
recover
any
other
part
of
the
Lands
or
Tenements
,
or
any
part
of
the
personal
Estate
of
the
said
Robert
,
by
the
Custom
of
the
Province
of
York
,
or
by
any
other
means
whatever
,
other
than
what
the
said
Robert
Benson
should
give
,
Bequeath
or
Settle
upon
or
to
her
;
That
then
the
Feoffees
therein
named
should
be
seised
,
of
all
the
premisses
setled
in
use
upon
the
said
Dorothy
,
to
the
use
of
Sir
Henry
Thompson
and
Mr.
Grayham
,
their
Executors
,
Administrators
and
Assigns
for
60
years
,
to
commence
from
the
death
of
the
said
Robert
,
if
the
said
Dorothy
should
so
long
live
;
Upon
Special
Trust
,
that
the
said
Thomson
and
Grayham
should
receive
the
profits
of
the
premisses
limited
in
the
Joynture
,
and
they
should
dispose
thereof
to
such
persons
and
their
uses
,
as
should
be
damnified
by
the
said
Dorothys
perception
,
of
the
profits
of
any
other
Lands
of
the
said
Robert
,
or
the
taking
or
recovery
of
any
part
of
the
personal
Estate
,
other
than
what
should
be
given
or
bequeathed
until
the
respective
values
of
the
Profits
,
or
values
of
such
Personal
Estate
should
be
fully
satisfied
,
and
the
residue
of
the
said
Profits
to
remain
to
the
said
Dorothy
.
That
the
said
Robert
dying
intestate
,
and
the
said
Dorothy
Administring
at
York
,
and
in
the
Prerogative
Court
of
Canterbury
,
as
Guardian
to
the
Plaintiff
Robert
,
possessed
the
Real
and
Personal
Estate
,
prerends
a
Right
to
some
part
of
the
Personal
Estate
by
the
said
Administration
,
notwithstanding
the
said
Marriage
agreement
.
The
Lord
Chancellor
Nottingham
declared
,
the
said
Dorothy
was
bound
by
the
said
Marriage
Agreement
,
Marriage
Agreement
provided
,
if
the
Wise
claim
any
of
the
personal
Estate
by
the
Custom
of
the
Province
of
York
,
then
the
Estate
to
other
use
.
Decreed
,
she
is
bound
by
the
said
Settlement
,
and
ought
not
to
claim
any
part
of
the
personal
Estate
;
by
Finch
.
and
the
Administration
ought
to
have
been
granted
to
her
,
and
that
however
,
the
same
ought
not
any
ways
to
avail
her
,
for
that
it
would
be
contrary
to
the
said
Settlement
and
Agreement
,
and
that
the
said
Dorothy
ought
not
to
claim
any
part
of
the
Real
Estate
,
other
than
what
was
Setled
on
her
by
the
said
deed
,
or
any
of
the
Personal
Estate
,
and
decreed
accordingly
.
But
the
Defendant
Dorothy
insisted
,
Reversed
by
North.
That
the
Lord
Keeper
North
had
adjudged
one
third
of
the
Personal
Estate
,
to
belong
to
the
Defendant
,
by
virtue
of
the
said
Administration
,
and
was
an
accrewing
Right
,
not
barred
by
the
Marriage
Agreement
.
The
Lord
Chancellor
Jefferies
,
Confirmed
by
Jeffreys
.
on
reading
the
said
Marriage
Settlement
,
and
the
said
two
former
Orders
,
declared
,
That
the
said
Order
for
the
Excluding
of
the
said
Defendant
Dorothy
from
having
any
part
of
the
Personal
Estate
,
was
a
just
Order
,
and
ought
to
stand
and
be
pursued
and
that
the
said
Order
of
the
Lord
Keeper
Norths
before
mentioned
,
ought
to
be
set
aside
,
and
Decreed
accordingly
.
Stapleton
contra
Dom.
Sherwood
,
34
Car.
2.
fo.
732.
THat
Sir
Phillip
Stapleton
the
Plain
tiffs
Father
,
Bill
for
Distribution
of
the
personal
Estate
.
on
his
Marriage
with
his
first
Wife
,
Setled
the
Mannor
of
Warter
in
the
County
of
York
,
whereby
he
made
himself
but
Tenant
for
life
,
the
Inheritance
vesting
in
the
Plaintiff
his
Eldest
Son
;
and
Sir
Phillip
had
Issue
by
his
first
Wife
,
the
Plaintiff
his
Eldest
Son
,
Robert
his
Second
Son
,
and
Mary
who
Marryed
the
other
Plaintiff
,
the
Lord
Merrion
.
That
Sir
Phillip
in
1647.
by
Will
devised
to
his
said
Son
Robert
,
a
Rent
charge
of
40
l.
per
Annum
,
to
be
issuing
out
of
the
said
Mannour
,
and
afterwards
the
said
Robert
died
,
and
the
Defendant
Dorothy
his
Relict
,
Administred
to
the
said
Roberts
Personal
Estate
,
so
the
Plaintiffs
Bill
is
to
have
Distribution
of
his
Personal
Estate
.
The
Defendant
Dorothy
insisted
,
That
she
as
Widow
of
her
said
late
Husband
Robert
,
by
the
Custom
of
York
,
is
Entituled
to
a
Moiety
of
the
said
Personal
Estate
,
and
by
the
late
Act
for
setling
Intestates
Estates
,
the
said
Defendant
is
Intituled
to
the
other
Moiety
,
and
insisted
,
That
Sir
Phillip
having
Issue
by
several
Venters
which
are
yet
alive
,
or
their
Representatives
,
they
are
equally
intituled
with
the
Plaintiff
Stapleton
.
This
Court
declared
a
Distribution
of
the
said
Personal
Estate
,
according
to
Law
,
to
be
made
amongst
the
Plaintiff
Stapleton
,
and
the
Child
of
the
Lord
Merrion
,
as
also
the
Brothers
and
Sisters
of
the
said
Robert
,
as
well
as
those
of
the
half-Blood
,
as
those
of
the
whole
Blood
,
and
their
respective
Lineal
Representatives
,
who
are
to
be
called
into
the
account
.
And
as
to
the
point
,
whether
the
Lord
Merrion
and
his
Child
,
have
the
Right
to
his
Wives
share
of
the
Estate
,
a
Case
is
to
be
made
.
That
the
Master
to
whom
the
account
of
the
Intestates
Personal
Estate
was
referred
,
36
Car.
2.
fo.
375.
hath
allowed
to
the
Defendant
Dorothy
the
Administratrix
,
a
Moiety
of
the
said
Estate
of
the
said
Intestates
dying
without
Issue
,
and
hath
Distributed
the
other
Moiety
,
amongst
the
Intestates
Kindred
,
Brothers
and
Sisters
.
Whereas
by
the
Custom
of
the
Province
of
York
,
she
is
not
only
to
have
a
clear
Moiety
of
the
Personal
Estate
of
her
said
Husband
so
dying
without
Issue
after
Debts
,
&c.
but
by
the
late
Statute
for
setling
Intestates
Estates
,
she
is
to
have
a
Moiety
of
the
other
Moiety
.
The
Plaintiff
insists
,
That
there
was
no
Colour
for
the
Defendant
to
have
a
Moiety
of
the
remaining
Moiety
,
the
said
Statute
leaving
the
Custom
as
it
was
,
without
Addition
,
Diminution
or
Inlargement
;
but
the
Widow
was
to
have
only
a
Moiety
,
and
the
other
Moiety
to
be
Distributed
amongst
the
next
of
Kin.
This
Court
for
the
further
satisfaction
,
The
Custom
of
the
Province
of
York
Certified
by
the
Arch-Bishop
.
ordered
the
Lord
Arch-Bishop
of
the
Province
of
York
to
testifie
,
when
a
man
dies
Intestate
within
that
Province
,
without
Issue
after
his
Debts
,
&c.
paid
,
how
the
Residue
is
to
be
Distributed
by
the
Custom
of
the
Province
.
The
Bishop
certified
,
That
in
such
Cases
as
aforesaid
,
the
Widow
of
the
Intestate
by
the
Custom
of
the
Province
,
had
usually
allotted
to
her
,
one
Moiety
of
the
clear
Personal
Estate
,
and
the
other
Moiety
hath
been
Distributed
amongst
the
next
of
Kin
to
the
Intestate
;
and
that
had
been
the
constant
practice
of
the
Ecclesiastical
Courts
at
York
.
The
Plaintiff
insisted
,
That
the
Custom
of
that
Province
is
excepted
out
of
the
Act
of
Parliament
,
and
if
it
were
within
the
Act
,
it
ought
to
have
the
more
favourable
construction
on
their
part
,
because
it
was
made
in
favour
of
them
,
and
not
of
the
Widow
and
Administratrix
,
who
before
the
said
Act
,
usually
went
away
with
the
whole
Estate
,
unless
more
particular
instances
prevented
.
This
Court
declared
,
The
Widow
by
the
Custom
of
the
Province
of
York
,
shall
have
the
Moiety
,
but
not
another
Moiety
by
the
Act
of
Settlement
of
Intestates
Estates
.
They
could
not
expound
the
Act
,
to
give
the
Defendant
more
than
a
Moiety
,
that
being
the
proportion
allotted
to
her
by
the
Custom
,
and
also
by
the
Act
,
if
it
had
not
been
a
Case
within
the
Custom
;
which
Custom
is
confirmed
,
because
it
appoints
the
same
kind
of
Distribution
with
the
Act
,
and
it
would
be
a
strein
to
give
her
more
than
a
Moiety
,
part
by
the
Custom
,
and
part
by
the
Act
,
and
refers
to
the
Masters
Report
made
in
this
Cause
.
Coventry
contra
Hall
,
34
Car.
2.
fo.
330.
THat
Sir
Thomas
Thynn
,
Bill
for
mean
profits
.
Father
both
of
Sir
Henry
Frenderick
Thynn
,
and
Sir
James
Thynn
,
conveyed
on
Sir
Henry
Frenderick
,
and
his
Heirs
Males
of
his
Body
,
expectant
after
the
decease
of
him
the
said
Sir
Thomas
,
the
Mannour
of
Hempsford
and
other
Lands
,
and
soon
after
dyed
,
and
the
said
Sir
Henry
Frederick
possessed
the
said
premisses
,
but
Sir
James
Thynn
,
pretending
the
said
Conveyance
was
Defective
,
Sir
Henry
Frederick
in
Oct.
1650.
obtained
a
decree
,
that
the
said
Sir
Henry
Frederick
,
and
the
Heirs
of
his
Body
,
should
enjoy
the
said
premisses
against
the
said
Sir
James
Thynn
and
his
Heirs
,
according
to
the
intent
of
the
said
Settlement
.
That
Sir
James
Thynn
insisting
,
That
Sir
Thomas
was
but
Tenant
for
life
,
and
not
Seized
in
Fee
of
the
premisses
,
having
suffered
Recoveries
,
so
that
the
Freehold
was
in
the
said
Sir
James
,
or
some
other
for
his
use
,
by
virtue
whereof
,
he
received
the
profits
,
which
Sir
Henry
Frederick
ought
to
have
received
:
That
Sir
Henry
not
being
able
to
recover
the
said
mean
profits
at
Law
,
by
reason
of
the
defect
in
the
said
Conveyance
,
which
is
now
supplyed
and
setled
by
the
said
decree
,
and
Act
of
Parliament
,
so
that
the
said
Sir
Henry
hath
the
right
to
the
said
profits
and
writings
.
So
the
Bill
is
to
be
relieved
for
the
same
,
and
to
have
an
account
thereof
.
The
Defendant
insisted
,
That
there
ought
to
be
no
account
of
the
mean
profits
,
the
demand
thereof
being
very
old
,
and
is
grounded
on
a
decree
in
a
former
Cause
,
whereby
a
defect
in
a
Conveyance
,
under
which
the
Plaintiff
claims
was
supplyed
,
and
there
is
no
provision
in
the
said
decree
for
mean
profits
,
though
the
Bill
originally
was
such
as
this
Court
might
have
decreed
mean
profits
,
and
when
the
Decree
was
made
,
it
was
not
granted
nor
any
farther
relief
than
only
possession
,
and
the
possession
hath
been
so
unconstantly
in
any
one
person
,
that
it
is
very
difficult
,
especially
after
so
long
time
against
an
Executor
,
that
is
no
way
privy
to
the
accounts
of
the
Testator
.
The
Plaintiff
insisted
,
That
though
the
demand
on
the
decree
is
Antient
,
and
a
prosecution
hath
been
for
the
same
ever
since
,
and
the
Right
being
determined
,
the
Plaintiff
ought
to
have
an
account
of
the
mean
profits
,
as
the
Consequences
of
that
Right
,
though
the
Original
Bill
might
pray
an
account
,
and
the
decree
be
silent
as
to
that
point
.
This
Court
declared
,
That
considering
this
case
,
as
if
there
were
no
Act
of
Parliament
,
the
Plaintiff
hath
a
right
to
demand
an
account
upon
an
equity
that
ariseth
on
the
Marriage
Agreement
,
and
Settlement
made
in
pursuance
thereof
,
notwithstanding
the
length
of
time
,
for
that
the
Plaintiff
or
their
Testator
,
could
not
come
sooner
,
than
when
the
Title
was
cleared
;
Mean
profits
Decreed
,
tho'
a
long
time
since
.
and
the
Objection
raised
from
the
shortness
of
the
former
decree
,
is
not
material
to
prejudice
the
Plaintiffs
demand
,
for
that
there
could
not
then
be
any
decree
for
profits
,
the
said
Sir
James
pretending
Title
as
Tenant
in
Tail
,
Account
for
the
mean
profits
,
from
the
time
the
right
accrewed
.
and
that
Sir
Thomas
was
but
Tenant
for
life
,
so
now
the
Right
being
cleared
,
the
Plaintiff
ought
to
have
an
account
of
the
mean
profits
,
from
the
time
the
Right
accrewed
,
and
decreed
accordingly
.
The
Defendant
Appealing
from
the
said
Decree
made
by
the
Lord
Chancellor
Finch
,
to
the
Lord
Keeper
North
,
the
Case
was
heard
ab
integro
,
and
the
Lord
Keeper
on
hearing
the
decree
in
1650.
and
the
decree
of
the
Lord
Finch
read
,
declared
,
that
there
was
nothing
in
the
case
,
but
the
loss
of
time
,
and
though
the
Decree
in
1650.
The
mean
profits
,
tho'
omitted
in
a
former
decree
,
decreed
now
.
was
silent
as
to
the
mean
profits
,
yet
the
same
ought
to
be
no
Objection
to
the
Right
,
and
though
it
was
omitted
by
the
Decree
in
1650.
yet
it
ought
in
Justice
to
have
been
decreed
for
the
mean
profits
,
as
well
as
for
the
right
of
the
Title
,
it
being
an
accessary
to
the
decree
,
and
it
ought
to
be
judged
nunc
pro
tunc
,
there
being
no
Bar
against
it
,
and
confirmed
the
Decree
made
by
the
Lord
Finch
.
Girling
contra
Dom'
Lowther
&
al'
,
34
Car.
2.
fo.
148.
THat
Sir
Thomas
Leigh
deceased
,
late
Father
of
the
Defendants
John
Thomas
and
Woolley
Leigh
,
became
indebted
to
Edmond
Girling
deceased
,
in
several
Sums
of
mony
by
Bonds
,
and
the
said
Girling
became
bound
for
the
said
Sir
Thomas
,
for
several
great
Sums
of
mony
,
against
which
Securities
Sir
Thomas
gave
the
said
Girling
Counterbonds
;
and
in
Hillary
Term
28
Car.
2.
Sir
Thomas
gave
a
Judgment
of
1000
l.
to
the
said
Girling
,
for
the
payment
of
530
l.
and
in
Aug.
1669.
Sir
Thomas
made
his
last
Will
in
writing
,
and
thereby
devised
to
the
Defendants
Sir
John
Lowther
,
John
Currance
and
Edward
Badby
Executors
of
his
said
Will
,
several
Lands
Lands
and
Tenements
for
the
payment
of
his
debts
,
and
to
be
by
them
sold
for
that
purpose
:
That
the
Swan
Inn
in
St.
Martins
Lane
being
sold
,
there
ariseth
a
Question
touching
the
Mony
raised
by
such
Sale
,
whether
it
were
well
applied
or
not
.
The
Case
being
(
viz.
)
That
Sir
Thomas
Leigh
,
upon
his
Marriage
with
Hannah
Relfe
,
Daughter
of
Anthony
Relfe
,
whilst
he
was
under
Age
by
Articles
previous
to
the
said
Marriage
with
the
said
Hannah
agreed
to
settle
on
himself
,
and
the
said
Hanuah
his
intended
Wife
,
and
such
as
they
should
have
between
them
Lands
of
700
l.
and
in
Consideration
thereof
,
the
said
Anthony
Relfe
was
to
settle
,
and
did
settle
upon
the
said
Thomas
and
his
Heirs
Lands
of
200
l.
per
Annum
,
whereupon
Sir
Thomas
Leigh
,
July
1661.
makes
a
Settlement
upon
himself
,
and
the
said
Hannah
his
intended
Wife
,
and
their
first
,
second
and
other
Sons
in
Tail
,
his
Mannor
of
Addington
,
and
other
Lands
in
Addington
,
and
several
Lands
in
Com'
Surrey
and
Keut
:
That
afterwards
in
May
1665.
Sir
Thomas
Leigh
mortgaged
to
Mr.
Peck
,
for
2000
l.
several
Lands
in
Middlesex
and
Norfolk
,
and
afterwards
in
December
1665.
those
Lands
and
the
moiety
of
the
Swan
Inn
in
St.
Martins
and
the
Reversion
thereof
were
granted
to
Trustees
upon
several
Trusts
,
which
by
Deed
15
June
1668.
appears
to
be
performed
and
satisfied
and
thereupon
on
the
same
15
June
1668.
the
said
premisses
were
mortgaged
to
Sir
John
Lowther
for
2500
l.
which
2500
l.
was
raised
and
paid
to
Sir
John
Lowther
out
of
the
profits
and
by
sale
of
the
said
Swan
Inn
,
which
was
formerly
by
voluntary
Conveyance
dated
and
setled
by
the
said
Sir
Thomas
Leigh
upon
the
two
Defendants
Thomas
and
Woolley
Leigh
for
Natural
love
and
affection
:
Voluntary
Settlement
.
That
Sir
John
Lowther
in
April
1679.
assigned
the
said
Mortgage
by
conveying
to
one
Burton
and
others
,
the
Mannor
of
Thorpe
in
Surrey
and
Shoelands
,
and
other
premisses
in
Trust
for
the
payment
of
such
of
the
debts
of
Sir
Thomas
Leigh
as
should
any
ways
incumber
,
or
disturb
the
Purchaser
of
the
Swan
Inn
,
which
said
Lands
are
sufficient
to
pay
the
Plaintiffs
debts
,
and
the
Testators
Ingagement
,
being
1331
l.
which
debt
is
to
be
paid
the
Plaintiff
by
Decree
of
this
Court
.
The
Defendants
the
Leighs
insist
,
That
the
Mony
raised
by
the
sale
of
the
Swan
Inn
,
although
paid
to
redeem
the
other
Estate
in
mortgage
to
Sir
John
Lowther
,
ought
not
to
be
applied
,
so
that
the
Land
ought
to
be
discharged
of
the
Mortgage-mony
,
or
of
what
was
paid
to
redeem
the
same
,
but
the
said
Lands
ought
still
to
be
a
Security
for
the
said
Mony
to
the
use
of
the
younger
Children
,
for
whose
benefit
the
said
Swan
Inn
was
setled
;
and
although
the
said
Settlement
was
voluntary
,
yet
the
same
being
a
provision
for
younger
Children
ought
not
to
be
adjudged
fraudulent
as
to
a
subsequent
Judgment
(
which
the
Paintiffs
is
)
or
however
not
as
to
a
subsequent
voluntary
Devise
of
their
Father
,
under
which
only
the
Creditors
by
Bond
come
in
,
and
therefore
as
to
them
the
said
mortgaged
Lands
ought
to
be
charged
with
the
said
Mony
,
raised
by
the
sale
of
the
said
Swan
Inn
,
with
Interest
,
since
it
was
paid
to
redeem
the
said
Estate
,
precedent
to
any
benefit
any
Creditor
by
Bond
can
have
out
of
the
said
Lands
.
This
Court
declared
,
Voluntary
Conveyance
(
though
a
provision
for
younger
Children
)
not
to
prevent
satisfaction
of
subsequent
Judgments
.
That
the
said
voluntary
Conveyance
ought
not
to
stand
in
the
way
to
prevent
satisfaction
of
a
subsequent
Judgment
for
good
Considerations
,
and
that
the
Monies
due
on
the
Plaintiffs
Judgment
,
and
the
Monies
raised
by
sale
of
the
Swan
Inn
,
was
well
applied
to
discharge
the
Mortgage
on
the
other
Estate
whereby
the
mony
due
on
the
Judgment
with
Interest
may
be
the
more
speedily
raised
by
sale
thereof
,
and
the
mony
raised
by
sale
of
the
said
Inn
after
the
Judgment
satisfied
with
Interest
ought
to
stand
secur'd
for
the
benefit
of
the
younger
Children
,
Mony
applied
to
take
off
Mortgages
,
satisfie
Judgments
,
and
after
to
pay
Bond-Creditors
.
and
be
raised
by
sale
of
the
said
Estate
,
and
by
Rents
and
Profits
in
the
mean
time
precedent
to
the
other
Creditors
not
on
Judgment
,
and
after
the
said
Judgment
and
provision
for
the
younger
Children
satisfied
,
the
residue
to
be
applied
to
the
other
Creditors
,
and
decreed
accordingly
.
Comes
Arglas
contra
Henry
Muschamp
,
35
Car.
2.
fo.
524.
THat
Thomas
,
Relief
against
over-reaching
Bargains
.
first
Earl
of
Arglas
,
the
now
Plaintiffs
Father
,
and
William
Earl
of
Arglas
the
Plaintiffs
Brother
,
were
seised
in
Fee
of
the
premisses
in
question
,
and
made
divers
Settlements
thereof
,
by
which
in
case
of
failure
of
Issue
Male
of
the
said
William
,
the
said
Estate
should
come
to
the
Plaintiff
and
the
Heirs
Males
of
his
Body
:
That
Thomas
the
Plaintiffs
Father
died
,
leaving
Issue
Male
only
Earl
William
and
the
Plaintiff
,
and
Earl
William
is
dead
leaving
Issue
Male
only
the
last
Earl
Thomas
the
Plaintiffs
Nephew
;
and
the
said
last
Earl
Thomas
upon
his
marriage
with
his
now
Wife
levied
a
Fine
,
and
suffered
a
Recovery
,
but
not
with
intent
to
defear
the
Remainder
to
the
Plaintiff
,
but
only
to
settle
a
Joynture
,
and
several
Deeds
were
executed
leading
the
Uses
,
by
which
there
was
a
Remainder
in
Fee
reserved
for
the
Plaintiff
,
for
want
of
Issue
Male
of
the
last
Earl
Thomas
;
and
the
said
last
Earl
Thomas
,
to
the
intent
the
Reversion
of
the
premisses
should
come
to
the
Plaintiff
and
the
Heirs
Males
of
his
Body
,
did
for
300
l.
convey
the
said
premisses
to
the
use
of
the
last
Earl
Thomas
for
life
,
and
in
case
of
failure
of
Issue
male
of
his
Body
to
the
Plaintiff
and
the
Heirs
males
of
his
Body
,
with
Remainders
over
:
That
Earl
Thomas
,
the
Plaintiffs
Nephew
,
coming
over
into
England
,
and
getting
acquaintance
with
the
Defendant
Muschampe
,
and
being
in
want
of
Mony
the
said
Muschampe
lent
him
100
l.
and
for
Security
he
prest
the
said
Earl
to
make
it
out
of
his
Estate
in
Ireland
,
and
the
said
Defendant
having
the
drawing
the
Security
,
brought
the
said
Earl
some
Writings
ready
to
be
executed
,
of
which
the
said
Earl
had
no
Copies
or
Counterparts
,
neither
did
he
give
time
to
peruse
the
same
,
and
the
said
Earl
relying
on
the
Defendants
Integrity
,
Sealed
the
same
,
believing
the
said
Security
to
be
void
on
payment
of
the
said
100
l.
as
the
Defendant
affirmed
it
should
;
but
the
said
Deeds
being
made
to
settle
on
the
Defendant
a
Rent
charge
of
300
l.
per
Ann.
to
his
own
use
,
which
being
done
by
Fraud
,
there
ought
to
arise
a
Trust
which
ought
to
go
and
be
enjoyed
by
the
Plaintiff
according
to
the
aforesaid
Settlement
made
on
the
Plaintiff
,
and
the
Plaintiff
is
willing
to
pay
the
Defendant
whatsoever
Sum
of
Mony
he
hath
really
lent
or
paid
to
the
said
last
Earl
Thomas
with
Interest
.
The
Defendant
insists
,
That
the
said
last
Earl
Thomas
by
Deed
in
1675.
for
300
l.
per
Annum
,
and
other
Considerations
,
granted
to
the
Defendant
a
Rent-charge
of
300
l.
per
Annum
,
without
any
deduction
to
be
issuing
out
of
the
Estate
in
Ireland
,
to
be
held
by
the
Defendant
and
his
Heirs
,
and
to
commence
at
such
of
the
Feasts
as
should
first
happen
after
the
death
of
the
said
last
Earl
of
Arglas
,
without
Issue
male
,
with
power
to
distrain
,
and
a
Proviso
,
That
if
the
said
last
Earl
should
during
his
life
time
have
,
or
at
his
death
leave
Issue
male
which
do
attain
to
the
Age
of
21
,
then
the
said
Grant
to
be
void
,
and
of
the
said
300
l.
there
was
at
one
entire
payment
180
l.
paid
to
the
said
last
Earl
,
and
the
Defendant
hath
a
Receipt
for
the
said
300
l.
and
says
,
the
Deed
was
fairly
executed
and
made
without
any
fraud
or
practice
;
and
insists
,
That
the
said
Grant
of
a
Rent-charge
was
on
a
Contingency
so
uncertain
,
that
300
l.
was
a
sufficient
Consideration
for
the
said
Grant
,
which
300
l.
was
paid
thus
(
viz.
)
100
l.
after
the
Agreement
,
and
before
the
Conveyance
of
the
said
Rent
charge
,
and
184
l.
to
the
said
Earl
the
same
day
the
Conveyance
was
executed
,
and
the
said
Mony
was
paid
as
Purchase-mony
,
and
not
as
Mony
lent
,
and
the
said
Earl
approved
of
the
said
Conveyance
,
though
he
had
no
Copy
,
and
after
the
said
Defendants
purchase
of
the
Rent-charge
;
and
since
the
exhibiting
of
this
Bill
,
the
said
Earl
Thomas
hath
given
the
Defendant
a
general
Release
under
Hand
and
Seal
,
wherein
is
declared
,
that
the
Bill
is
exhibited
against
the
Defendant
contrary
to
the
said
Earls
direction
,
and
disallowed
all
further
proceedings
thereon
against
the
Defendant
.
This
Court
upon
reading
the
said
deeds
,
and
several
presidents
in
this
Court
,
as
well
in
the
Reigns
of
Queen
Elizabeth
,
King
James
,
King
Charles
the
first
,
as
in
his
now
Majesties
Reign
,
where
relief
hath
been
given
against
Over
reaching
Bargains
and
Contracts
made
by
young
Heirs
,
and
taking
into
consideration
the
Circumstances
of
this
Case
,
it
appeared
to
him
,
That
Thomas
Earl
of
Arglas
,
at
the
time
of
this
bargain
,
was
very
young
,
and
of
an
easie
nature
,
and
had
forsaken
his
Wife
and
Friends
,
and
came
to
London
,
where
he
lived
in
Riot
and
Debauchery
,
and
for
the
supply
of
his
Expences
therein
,
was
this
bargain
made
,
wherein
it
doth
not
appear
,
he
took
the
Advice
of
any
Friends
or
Councel
,
but
relyed
wholy
on
the
Defendant
:
That
the
consideration
of
this
grant
is
very
small
,
being
but
one
years
purchase
for
a
Rent-charge
in
Fee-simple
,
which
is
now
hapned
in
possession
,
and
the
over-value
be
it
never
so
great
,
is
not
of
it self
sufficient
ground
to
set
aside
a
bargain
,
Fraud
or
not
.
or
whereupon
this
Court
can
presume
fraud
:
Yet
it
is
a
great
evidence
of
fraud
,
where
there
are
other
Circumstances
concurring
,
as
there
is
in
this
Case
.
And
whereas
the
Defendant
insisted
,
that
the
Contingency
of
the
death
of
a
young
Man
without
Issue
Male
was
so
great
,
that
it
cannot
be
esteemed
an
over-value
,
such
a
Reversion
not
being
worth
one
years
purchase
.
His
Lordship
declared
,
He
looked
upon
it
as
an
Artifice
of
the
Defendant
,
for
it
was
easie
to
perswade
the
Earl
Thomas
,
who
could
not
judge
of
his
own
defects
,
that
the
Defendant
had
the
worst
of
the
Bargain
.
Whereas
it
is
not
likely
the
Defendant
would
have
made
it
,
but
that
he
thought
Earl
Thomas
would
in
a
short
time
destroy
himself
by
his
Vitious
and
Debauched
course
of
life
,
and
his
Lordship
was
of
Opinion
,
the
Defendant
had
Circumvented
the
Earl
Thomas
in
this
bargain
,
and
concluded
upon
the
whole
matter
,
that
the
Plaintiff
ought
to
be
relieved
in
this
Court
,
A
proper
Bargain
(
tho'
over-reaching
)
especially
upon
a
Contingency
relieveable
,
but
not
to
the
damage
of
the
bargaince
.
and
the
Release
made
by
Earl
Tho.
without
any
consent
after
the
Settlement
made
upon
the
Plaintiff
,
ought
to
be
no
Bar
thereunto
,
but
in
as
much
as
his
Lordship
found
by
the
presidents
,
that
in
such
cases
,
This
Court
doth
not
turn
any
loss
upon
the
Defendant
,
but
only
correct
the
Excess
and
Extravagancy
of
such
bargain
;
Therefore
his
Lordship
thought
fit
,
the
300
l.
should
be
restored
to
the
Defendant
,
with
consideration
for
the
same
,
at
6
l.
per
Cent.
and
on
payment
thereof
,
the
Defendant
to
convey
the
said
Rent-charge
of
300
l.
per
Annum
,
and
all
his
Title
,
Interest
and
Demand
in
the
premisses
to
the
Plaintiff
,
and
granted
a
perpetual
Injunction
,
not
only
to
stay
all
proceedings
at
Law
,
but
for
quieting
the
Plaintiff
,
his
Heirs
,
&c.
in
the
possession
of
the
premisses
.
Langton
contra
North
&
al'
,
35
Car.
2.
fo.
95.
THat
Sir
Robert
Gouning
Deceased
,
Marriage
Settlement
.
being
Seized
of
Lands
,
and
a
great
Personal
Estate
,
upon
a
Marriage
to
be
had
between
him
and
the
Defendant
Dame
Ann
,
Daughter
of
Sir
Robert
Cann
,
Articles
of
Agreement
were
executed
,
and
in
pursuance
of
the
Articles
,
a
Settlement
of
part
of
the
premisses
was
made
upon
the
Defendant
Dame
Ann
,
for
her
Joynture
,
and
in
the
said
Settlement
,
there
was
a
Covenant
on
the
said
Sir
Robert
Gounings
part
,
to
lay
out
as
much
Mony
in
the
Purchase
of
Lands
,
as
would
amount
to
110
l.
per
Annum
,
to
be
setled
on
the
said
Dame
Ann
for
her
life
,
remainder
to
the
Heirs
of
the
said
Sir
Robert
Gouning
,
which
was
intended
to
be
an
Inlargement
of
his
Real
Estate
,
and
to
be
for
the
benefit
of
his
Heir
,
but
the
said
Defendant
Dame
Ann
refuseth
since
the
death
of
Sir
Robert
Gouning
her
Husband
,
to
whom
she
is
Administratrix
,
to
execute
the
said
Covenant
in
Specie
,
by
Purchasing
of
Lands
of
110
l.
per
Annum
,
to
be
setled
according
to
the
Covenant
as
aforesaid
,
and
which
ought
to
come
to
the
Plaintiffs
as
Coheirs
of
the
said
Sir
Robert
Gouning
.
The
Defendants
insisting
,
Covenant
to
settle
Lands
of
120
l
per
Annum
to
the
said
Remainder
to
the
Heirs
of
the
Husband
,
Wife
Administratrix
refuseth
the
Bill
was
dismist
.
that
the
said
Covenant
was
made
in
favour
of
the
said
Dame
Ann
only
,
and
not
for
the
Plaintiffs
the
Heirs
benefit
,
and
the
Defendant
also
as
Administratrix
,
claims
Title
to
the
Mortgaged
Lands
at
Siston
,
insisting
,
that
the
same
are
a
Chattel
Lease
for
a
long
Term
of
years
,
which
by
Assignment
,
came
to
Mary
Gouning
,
Sister
of
the
said
Sir
Robert
,
and
that
she
afterwards
procured
a
Release
of
the
Equity
of
Redemption
for
950
l.
including
therein
the
Mony
due
upon
the
said
Mortgage
,
and
that
she
purchased
the
Reversion
in
Fee
thereof
,
in
the
name
of
her
Brother
Sir
Robert
,
which
she
did
on
purpose
to
keep
the
Lease
distinct
and
separate
,
and
that
it
ought
not
to
go
to
the
Heir
,
but
to
the
Administratrix
.
But
the
Plaintiff
insists
,
That
the
said
Lease
ought
to
attend
the
Inheritance
,
which
Mary
Gouning
,
to
whom
the
Plaintiffs
are
Heirs
,
bought
in
for
that
purpose
,
in
the
name
of
the
said
Sir
Robert
her
Brother
,
and
that
the
same
ought
to
come
to
the
Plaintiffs
,
as
other
the
Real
Estate
of
the
said
Sir
Roberts
.
This
Court
declared
,
Lease
to
attend
the
Inheritance
.
as
to
the
Lands
at
Siston
,
it
was
an
Inheritance
,
and
ought
to
go
to
the
Heirs
at
Law
,
and
decreed
accordingly
.
And
as
touching
the
Covenant
for
Purchasing
Lands
of
110
l.
per
Annum
,
this
Court
dismist
the
Bill
.
Eyre
contra
Hastings
,
35
Car.
2.
fo.
590.
THat
Henry
Eyre
deceased
,
Relief
upon
a
Mortgage
.
the
Plaintiffs
Brother
,
being
seized
of
Lands
,
22
Car.
2.
Mortgaged
the
same
for
200
l.
to
Giles
Eyre
the
Plaintiffs
Son
,
and
the
said
Henry
Eyre
,
Covenanted
to
pay
the
Mortgage
money
,
and
gave
Bond
for
performance
of
the
Covenants
,
and
the
said
Henry
dying
without
Issue
,
and
Intestate
the
premisses
descended
on
the
Plaintiff
as
Brother
and
Heir
,
and
Administration
was
granted
to
Dorothy
his
Relict
,
who
paid
the
Mortgage
money
and
Interest
then
due
to
the
said
Giles
Eyre
,
the
Mortgagee
in
relief
of
the
Plaintiff
,
who
ought
to
enjoy
the
premisses
discharged
of
the
Mortgage
money
,
and
the
said
Dorothy
made
her
Will
,
and
the
Defendant
Ralph
Hastings
Senior
her
Executor
,
hath
got
the
Mortgaged
premisses
Assigned
to
him
,
and
insists
,
He
ought
to
hold
the
same
till
the
200
l.
and
interest
be
paid
him
by
the
Plaintiff
.
That
the
Defendant
Ralph
Junior
,
an
Infant
,
claims
the
premisses
by
the
Will
of
the
said
Dorothy
,
who
devised
the
same
to
him
.
To
be
relieved
against
them
,
and
the
Plaintiff
to
have
the
Inheritance
of
the
premisses
,
discharged
from
the
payment
of
the
Mortgage
money
and
Interest
,
and
the
Bond
delivered
up
,
is
the
Bill
.
The
Defendant
Hastings
Senior
insists
,
Whether
Mortgage
Money
be
paid
by
the
Administrator
,
in
relief
of
the
Heir
.
That
the
said
Dorothy
paid
the
said
Mortgage
money
and
interest
;
but
not
in
relief
of
,
or
for
the
benefit
of
the
Plaintiff
,
and
thereupon
the
premisses
were
Assigned
to
the
said
Hastings
Senior
,
in
Trust
for
the
said
Dorothy
,
who
had
an
equitable
Right
to
all
her
Husbands
Estate
,
and
Dorothy
devised
the
said
premisses
to
Hastings
Junior
her
Godson
.
The
Master
of
the
Rolls
decreed
the
Plaintiff
to
enjoy
the
premisses
against
the
Defendant
.
This
Cause
was
Re-heard
by
the
Lord
Keeper
,
and
this
Defendant
the
Infant
,
insists
,
That
he
is
much
prejudiced
by
the
Decree
;
for
that
thereby
he
is
stript
of
the
Estate
in
question
,
devised
to
him
by
the
said
Dorothy's
Will
,
without
payment
of
the
money
and
interest
,
there
being
no
Covenant
in
the
said
Mortgage
Deed
,
for
payment
of
the
money
and
interest
,
or
any
Bond
;
but
the
Plaintiffs
Counsel
insisted
,
That
Dorothy
paid
the
Mortgage
money
,
and
interest
for
the
Plaintiffs
benefit
.
The
Defendant
insisted
,
that
Dorothy
declared
the
Mortgage
money
and
interest
was
paid
in
relief
of
the
Heir
at
Law
.
This
Court
declared
,
If
there
be
no
Covenant
in
the
Mortgage
Deed
for
payment
of
the
Money
,
the
Administrator
is
not
obliged
to
discharge
it
.
That
in
Case
there
was
not
any
Covenant
in
the
Deed
,
for
payment
of
the
Mortgage
money
and
Interest
,
the
said
Dorothy
the
Administratrix
,
was
not
obliged
to
discharge
the
same
.
Massingberd
contra
Ash
,
35
Car.
2.
fo.
466.
THis
Court
ordered
a
Case
to
be
Stated
in
this
Cause
,
Executory
Devises
.
upon
the
Deed
(
only
)
by
way
of
Executory
Devise
,
to
bring
the
question
arising
into
Determination
,
as
if
in
a
Will
,
and
in
such
method
as
if
the
Trust
and
Limitations
in
the
deed
,
had
been
Limited
and
Created
by
the
Will
;
upon
which
Case
,
the
Judges
of
the
Common
Pleas
were
to
Certifie
their
Opinions
,
Whether
the
Remainder
of
a
Residuary
Estate
of
the
two
Leases
or
Terms
in
question
limited
to
the
Plaintiff
,
were
a
good
Devise
or
Limitation
or
not
,
and
the
said
Judges
were
also
to
be
attended
with
another
Case
made
upon
both
Deed
and
Will
,
and
they
are
to
Certifie
what
the
Law
is
,
in
Case
of
Executory
Devise
,
as
also
what
is
fit
to
be
Decreed
in
Equity
.
The
Case
on
the
Deed
only
by
way
of
Executory
Devise
is
,
(
viz.
)
Two
several
Terms
,
one
for
500
and
the
other
for
99
years
by
Will
,
dated
the
1st
.
of
November
1679.
and
devised
in
these
words
,
(
viz.
)
That
Sir
Henry
Massingberd
and
his
Assigns
,
shall
take
the
Rents
,
Issues
and
Profits
,
for
and
during
the
Term
of
his
life
.
And
that
after
his
Decease
,
Elizabeth
his
Wife
should
receive
the
Rents
,
Issues
and
Profits
during
her
life
.
And
after
the
Decease
of
the
said
Sir
Henry
and
Elizabeth
,
the
Eldest
Son
of
the
said
Sir
Henry
,
begotten
upon
the
Body
of
the
said
Elizabeth
,
shall
take
the
Profits
of
the
said
Lands
till
Age
,
and
then
to
have
the
whole
Term
to
him
,
his
Executors
and
Administrators
.
And
if
such
Eldest
Son
happen
to
dye
before
he
comes
of
Age
,
then
the
second
Son
of
their
two
Bodies
,
shall
take
the
profits
of
the
said
premisses
,
till
he
come
of
Age
,
and
then
to
have
the
whole
Term.
And
if
such
second
Son
die
before
he
comes
of
Age
,
then
the
third
Son
to
have
and
receive
as
aforesaid
,
and
if
such
Son
die
before
he
likewise
comes
of
Age
,
then
the
fourth
Son
to
have
and
receive
as
aforesaid
.
And
in
Case
of
no
Issue
Male
between
Sir
Henry
and
Elizabeth
living
at
the
time
of
the
death
of
the
Survivor
of
them
,
who
shall
live
to
their
Age
;
and
that
there
shall
be
one
or
more
Daughter
or
Daughters
of
the
said
Sir
Henry
and
Elizabeth
,
that
then
the
said
Daughter
or
Daughters
,
their
Executors
and
Administrators
,
to
have
and
take
their
several
equal
shares
and
proportions
of
the
said
Rents
,
Issues
and
Profits
,
for
and
during
the
said
Terms
.
Unless
William
Massingberd
the
new
Plaintiff
,
should
within
six
Months
after
the
death
of
the
Survivor
of
them
the
said
Sir
Henry
and
Elizabeth
,
pay
such
Daughter
or
Daughters
,
or
secure
the
several
Sums
following
(
viz.
)
if
but
one
Daughter
1000
l.
and
if
more
,
then
to
every
one
of
the
rest
500
l.
a
piece
,
and
after
the
same
paid
or
secured
,
in
case
there
shall
be
no
such
Son
or
Daughter
living
at
the
time
of
the
death
of
the
Survivor
,
of
the
said
Sir
Henry
and
Elizabeth
,
or
which
should
live
to
attain
his
or
her
Age
,
then
the
Residue
of
the
said
Terms
,
to
go
and
to
be
to
Sir
William
Massingberd
the
now
Plaintiff
,
his
Executor
and
Administrators
.
Sir
Henry
Massingberd
dies
in
Sept.
1680.
leaving
his
Wife
Elizabeth
Ensient
of
a
Son
after
born
and
named
Henry
,
who
died
within
six
Weeks
after
.
Sir
Henry
and
Elizabeth
had
no
other
Issue
,
which
Elizabeth
is
now
the
Defendant
.
Quere
,
Who
is
eldest
Son
of
Sir
Henry
.
Whether
the
said
Devise
to
William
Massingberd
,
the
now
Plaintiff
be
good
.
The
Case
upon
both
Deed
and
Will.
That
Sir
Henry
Massingberd
being
possed
of
two
several
Terms
,
Deed
of
Trust
and
Will.
one
for
500
and
the
other
for
99
years
by
the
Indenture
,
2
Nov.
1679
,
made
an
Assignment
thereof
to
Trustees
upon
Trust
.
To
permit
and
suffer
him
the
said
Sir
Henry
and
his
Assigns
,
to
receive
the
rent
and
profits
during
his
life
,
and
after
his
death
to
permit
the
Defendant
Elizabeth
,
then
Elizabeth
Rayner
his
intended
Wife
to
receive
the
Rents
and
profits
during
her
life
,
then
upon
Trust
to
assign
the
residue
of
the
said
Terms
to
such
person
or
persons
,
and
for
such
Estates
and
Terms
,
and
in
such
manner
as
the
said
Sir
Henry
should
by
Will
,
in
writing
nominate
,
limit
and
appoint
,
give
,
devise
or
dispose
thereof
,
or
any
part
thereof
,
and
in
case
the
said
Sir
Henry
should
die
Intestate
,
or
should
not
by
his
Will
,
nominate
,
limit
,
appoint
,
give
,
devise
,
or
dispose
of
the
same
and
every
part
thereof
;
that
then
the
Trustees
should
permit
the
eldest
Son
of
the
Body
of
the
said
Sir
Henry
,
on
the
Body
of
the
said
Elizabeth
,
to
receive
the
Rents
,
Issues
and
profits
of
the
premisses
undisposed
of
by
the
Will
of
the
said
Sir
Henry
,
till
he
should
attain
his
Age
,
and
should
then
assign
to
him
,
his
Executors
and
Administrators
,
the
residue
of
the
said
Terms
;
and
in
case
the
eldest
Son
should
die
before
Age
,
then
the
Trustees
should
permit
the
second
Son
to
receive
the
Rents
and
profits
,
with
the
like
Trust
to
Assign
to
him
at
his
Age
,
and
so
to
the
3d
and
4th
Son
in
like
manner
.
And
in
case
of
no
Issue
male
between
them
,
at
the
time
of
the
death
of
the
Survivor
of
them
,
the
said
Sir
Henry
and
Elizabeth
,
which
should
live
to
attain
their
respective
Ages
,
and
that
there
should
be
one
or
more
Daughter
or
Daughters
between
them
,
that
then
the
Trustees
should
permit
the
said
Daughter
and
Daughters
,
her
and
their
Executor
and
Administrators
,
to
take
their
several
equal
shares
,
and
proportions
of
the
said
Rents
,
Issues
and
profits
,
not
devised
or
disposed
of
the
Will
of
the
said
Sir
Henry
,
for
and
during
the
said
Terms
,
unless
William
Massingberd
the
now
Plaintiff
,
the
eldest
Son
and
Heir
of
the
said
Sir
Henry
by
a
former
Venter
,
should
within
six
Months
after
the
death
of
the
Survivor
of
them
,
the
said
Henry
and
Elizabeth
pay
unto
such
Daughter
or
Daughters
,
or
secure
to
the
good
liking
of
the
Trustees
,
the
several
Portions
therein
mentioned
for
the
said
Daughter
or
Daughters
,
and
after
the
said
Portions
paid
or
secured
;
or
in
case
there
should
be
neither
Son
nor
Daughter
living
,
at
the
time
of
the
death
of
the
Survivor
of
them
,
the
said
Sir
Henry
and
Elizabeth
,
or
that
should
live
to
their
respective
Age
,
that
then
the
Trustees
should
assign
the
residue
of
the
said
Terms
,
to
the
said
William
Massingberd
,
his
Executors
and
Administrators
.
Then
there
is
a
power
of
Revocation
in
the
said
Sir
Henry
by
Deed
or
Will
,
to
revoke
and
make
void
this
present
Deed
,
and
the
Estate
,
and
Estates
,
Trust
and
Trusts
of
the
premisses
,
or
any
part
thereof
.
After
this
,
Sir
Henry
made
his
Will
in
writing
,
and
the
Defendant
Elizabeth
his
Lady
Executrix
,
Residuary
Legatee
.
and
Residuary
Legatee
,
and
devised
in
these
words
,
(
viz.
)
I
do
hereby
give
unto
her
all
my
Estate
,
which
I
have
by
Deed
setled
upon
her
,
according
to
the
true
meaning
and
intent
of
the
said
Settlement
:
And
also
I
give
her
all
those
other
Lands
hereby
,
hereafter
Setled
upon
her
,
according
to
my
true
intent
of
my
Settlement
thereof
for
her
life
,
or
on
my
Issue
by
her
;
And
I
do
also
give
her
all
my
Estate
,
concerning
my
interest
in
the
Colledge
Leases
from
John
Rutter
of
Canterbury
,
and
also
all
my
Goods
and
Chattels
,
not
hereby
otherwise
disposed
of
,
I
will
that
all
the
Coppyholds
any
ways
appertaining
to
Paston
,
be
taken
to
the
use
of
my
Ececutrix
,
and
also
the
Bishops
Lease
when
need
is
,
that
it
be
renewed
also
to
her
use
,
and
also
the
Lease
for
500
years
of
Paston
all
at
her
charge
,
according
to
the
true
intent
of
my
Settlements
upon
her
,
which
I
hope
my
Son
William
will
endeavour
,
as
before
the
Almightly
,
to
make
good
unto
her
and
hers
;
and
if
either
I
have
no
Issue
by
her
,
or
that
they
or
their
Issue
all
die
,
so
that
the
succession
be
expired
;
Then
after
my
Wives
decease
,
I
hereby
give
(
upon
my
Sons
wilful
neglect
or
refusal
of
his
duty
herein
,
and
not
otherwise
;
)
all
my
said
Lands
not
setled
on
him
by
his
Marriage
;
to
all
the
Daughters
of
my
Daughters
Sanderson
and
Stoughton
,
to
be
divided
among
them
.
Yet
always
provided
,
that
if
my
said
Son
neither
neglect
,
nor
refuse
any
reasonable
duty
herin
;
Then
my
Will
is
,
that
after
my
Wives
decease
,
and
that
all
her
Issue
by
me
be
either
dead
,
or
have
their
Portions
paid
them
as
is
provided
,
That
then
all
my
said
Lands
setled
on
her
for
life
,
whether
Copy
hold
,
Lease
hold
or
Freehold
,
with
all
the
rest
unsetled
shall
discend
,
and
be
to
him
and
his
Heirs
for
ever
.
Sir
Henry
Massingberd
left
no
Issue
living
by
that
Wife
,
but
left
his
said
Wife
Ensient
of
a
Son
born
alive
,
and
named
Henry
,
but
he
died
about
six
Weeks
after
,
to
whom
the
Lady
is
Administratrix
.
The
Judges
Opinion
upon
both
these
Cases
.
WE
have
heard
the
Case
of
Massingberd
and
Ash
,
Remainders
of
a
Term
successively
in
a
Deed
of
Trust
,
being
limited
and
confined
to
fall
within
21
years
are
good
,
and
no
Perpetuities
.
referred
to
us
,
Argued
by
Council
on
both
sides
,
both
upon
the
Deed
of
Trust
and
upon
the
Will
,
and
are
all
of
Opinion
,
That
the
whole
weight
of
the
Case
rests
upon
the
Deed
of
Trust
,
and
that
the
Will
,
though
it
have
some
Clauses
in
it
,
which
if
they
were
substantive
of
themselves
would
alter
the
case
;
yet
as
it
is
penned
,
and
the
Clauses
all
bound
up
with
relation
to
the
Deed
of
Trust
it
does
not
:
And
we
are
likewise
of
Opinion
,
That
all
the
Remainders
and
Contingencies
in
the
Deed
of
Trust
,
being
limited
and
confined
to
fall
within
the
compass
of
21
years
are
good
,
and
that
therefore
the
remainder
of
the
Term
ought
to
be
decreed
to
the
Plaintiff
Sir
William
Massingberd
.
Febr.
17.
1684.
-
Thomas
Jones
.
-
Creswell
Levings
.
-
J.
Charlton
.
-
T.
Street
.
The
Lord
Keeper
declared
himself
of
the
same
Opinion
with
the
Judges
,
That
the
Remainder
of
the
said
Terms
after
the
death
of
the
said
Dame
Elizabeth
were
good
Remainders
in
Law
,
and
that
the
Plaintiff
Sir
William
ought
to
enjoy
the
premisses
for
the
remainder
of
the
said
Terms
accordingly
,
and
decreed
the
same
.
Nodes
contra
Batle
,
35
Car.
2.
fo.
106.
THe
Bill
is
,
That
the
Defendant
may
redeem
,
or
be
fore
closed
,
and
the
Defendant
being
served
with
a
Subpoena
refuseth
to
appear
,
and
sits
out
all
process
of
Contempt
to
a
Serjeant
at
Arms
retorned
,
and
cannot
be
apprehended
.
The
Plaintiff
prays
,
the
Bill
may
be
taken
pro
Confesso
.
This
Court
declared
,
In
regard
the
Defendant
hath
not
appeared
,
The
Bill
not
to
be
taken
pro
Confesso
,
if
the
Defendant
hath
not
appear'd
,
but
a
Sequestration
shall
issue
out
against
him
.
this
Court
could
not
decree
the
Bill
pro
Confesso
,
but
ordered
a
Sequestration
against
his
real
and
personal
Estate
,
until
he
cleared
his
Contempt
.
Moor
contra
Hart
,
35
Car.
2.
fo.
60.
THat
a
Treaty
of
Marriage
was
had
between
the
Plaintiff
and
Ann
his
Wife
,
Marriage
Agreement
.
the
Defendants
Daughter
,
who
promised
to
give
with
her
4000
l.
but
when
the
Defendant
perceived
them
to
be
mutually
ingaged
,
began
to
recede
from
his
Promise
,
which
the
Plaintiff
finding
,
a
Letter
was
wrote
to
the
Defendant
by
a
Friend
of
the
Plaintiffs
,
desiring
him
to
be
plain
,
and
ascertain
what
Portion
he
would
give
the
Plaintiff
with
his
Daughter
,
and
then
the
Defendant
agreed
to
give
1500
l.
down
,
and
500
l.
more
at
his
death
,
if
she
should
have
Issue
,
and
both
Sums
to
be
charged
on
his
Estate
at
Creaton
and
Wapingham
,
which
Agreement
was
in
Writing
,
and
signed
by
the
Defendant
,
and
he
did
in
Answer
to
the
said
former
Letter
express
and
declare
as
much
under
his
Hand
,
and
thereupon
the
Marriage
took
effect
.
But
the
Defendant
pretended
,
he
never
made
any
such
Agreement
,
and
that
the
Plaintiff
married
his
Daughter
without
his
Consent
,
but
confesseth
he
received
a
Letter
from
one
Reeve
,
a
Friend
of
the
Plaintiffs
,
wherein
he
desired
the
Defendant
to
be
clear
,
and
say
what
he
would
lay
down
upon
the
Nail
in
marriage
with
his
Daughter
to
the
Plaintiff
,
and
what
he
would
secure
to
be
paid
at
his
death
;
and
that
he
sent
a
Letter
to
Reeve
in
Answer
,
wherein
he
acknowledg'd
the
Plaintiffs
deserts
exceeded
his
ability
,
and
with
all
plainness
acquainted
him
,
he
would
give
her
1500
l.
in
present
out
of
his
Estate
at
Creaton
,
and
500
l.
more
at
his
death
,
if
she
should
have
Issue
then
living
;
but
that
afterwards
Mr.
Reeves
sent
a
Letter
in
Answer
to
that
,
whereby
the
Treaty
and
Proposals
are
absolutely
waved
,
and
the
Defendant
never
further
Treated
;
but
the
Marriage
was
had
without
his
Consent
,
and
without
any
Agreement
in
Writing
or
Settlement
,
and
therefore
he
insists
upon
the
Act
,
for
prevention
of
Frauds
and
Perjuries
.
To
which
the
Plaintiff
insists
,
The
last
Letter
sent
by
Reeve
was
no
manner
of
the
Treaty
or
Proposal
in
the
former
Letters
in
Jan.
1680.
This
Court
,
Letters
under
ones
Hand
,
shall
amount
to
a
good
Agreement
within
the
Statute
of
Frauds
and
Perjuries
.
on
reading
the
several
Letters
sent
by
Reeve
to
the
Defendant
,
in
the
behalf
of
the
Plaintiff
,
and
the
Defendants
Answer
thereunto
,
This
Court
is
fully
satisfied
,
the
Plaintiff
upon
his
Marriage
became
well
intituled
to
the
1500
l.
agreed
by
the
Defendant
under
his
own
Hand
,
to
be
paid
to
the
Plaintiff
as
his
Wives
Portion
,
out
of
his
Estate
at
Creaton
;
and
decreed
accordingly
.
Bradbury
contra
Ducem
Bucks
,
36
Car.
2.
fo.
401.
THis
Court
did
declare
,
Interest
upon
Interest
,
decreed
.
That
the
Plaintiffs
ought
to
have
Interest
for
their
Interest
Mony
from
time
to
time
,
when
it
is
a
stated
Sum.
Dom'
Pawlet
contra
Dom'
Pawlet
,
36
Car.
2.
fo.
516.
This
is
upon
a
Case
stated
,
viz.
THat
John
,
Trust
for
payment
of
Debts
,
Maintenance
of
younger
Children
,
and
raising
Portions
.
late
Lord
Pawlet
,
on
Marriage
with
the
Plaintiff
the
Lady
Susanna
his
second
Wife
,
and
of
her
Portion
,
setled
a
Joynture
of
1000
l.
per
Annum
on
her
,
and
afterwards
having
3
Children
,
(
viz.
)
the
Defendant
the
now
Lord
Pawlet
,
and
Susanna
,
and
Vere
Pawlet
,
by
Deed
conveyed
Lands
to
Trustees
,
and
their
Heirs
,
(
viz.
)
to
the
use
of
the
said
Lord
Pawlet
for
life
,
charged
with
Portions
for
his
Daughters
,
by
the
Lady
Essex
Pawlet
his
former
Wife
,
and
after
the
death
of
the
said
Lord
Pawlet
,
to
the
use
of
Francis
Pawlet
and
others
,
for
500
years
on
Trust
,
that
they
should
after
the
commencement
of
the
500
years
,
out
of
the
Profits
,
or
by
Leases
,
or
other
lawful
ways
out
of
the
premisses
,
allow
the
now
Defendant
Maintenance
,
and
also
sufficient
to
pay
all
the
late
Lord
Pawlets
debts
,
and
maintenance
for
the
younger
Children
;
and
after
that
to
raise
Mony
to
pay
the
younger
Childrens
Portions
in
such
manner
and
time
as
the
said
Lord
Pawlet
should
by
any
Writing
or
last
Will
appoint
,
and
in
default
of
such
limitation
or
appointment
,
the
Trustees
to
raise
4000
l.
a
piece
for
every
younger
Son
,
and
4000
l.
a
piece
for
every
Daughter
of
the
said
Lord
Pawlet
by
the
Lady
Sasanna
,
to
be
paid
at
their
Ages
or
day
of
Marriages
,
if
such
Portions
could
conveniently
be
raised
,
and
if
not
,
then
so
soon
after
as
the
same
could
be
;
with
this
further
.
That
every
younger
Son
and
Daughter
should
have
Maintenance
till
Portions
paid
;
and
after
all
the
said
Sums
raised
,
the
Remainder
of
the
500
years
,
to
be
surrendred
to
whom
the
immediate
Reversion
belonged
,
which
is
now
the
Defendant
.
That
the
late
Lord
Pawlet
by
Will
in
1677.
(
and
published
at
the
same
time
when
the
said
Deed
was
executed
)
gave
to
his
said
two
Daughters
Susanna
and
Vere
Pawlet
4000
l.
for
their
respective
Portions
,
to
be
paid
them
as
the
said
Deed
directed
,
and
made
the
said
Francis
Pawlet
,
and
the
other
Trustees
,
Executors
.
Will
pursuant
to
a
Settlement
,
for
raising
Portion
.
That
Vere
Pawlet
,
one
of
the
said
Daughters
died
,
and
the
Plaintiff
her
Mother
took
Administration
to
her
Estate
,
and
thereby
intitles
her self
to
the
said
Portions
of
4000
l.
appointed
to
be
paid
to
the
said
Vere
at
her
Age
or
day
of
Marriage
.
And
the
Question
now
being
,
Whether
the
Plaintiff
by
virtue
of
such
Administration
,
is
intituled
to
the
Portion
of
her
said
Daughter
Vere
,
who
died
before
her
Age
or
day
of
Marriage
,
and
the
Trustees
should
be
compelled
to
raise
the
same
out
of
the
Trust
of
the
Term
of
500
years
,
which
was
granted
out
of
the
Defendant
,
the
now
Lord
Pawlet
,
the
Infants
Inheritance
.
This
Court
upon
perusal
of
Presidents
declared
,
Difference
between
a
Legacy
and
a
Trust
.
they
did
not
find
any
of
the
Presidents
that
came
up
to
this
Case
,
and
conceived
there
was
a
great
difference
between
a
Legacy
and
a
Trust
,
for
that
a
Trust
is
expounded
according
to
the
intent
of
the
party
,
but
a
Legacy
is
governed
by
the
Rules
of
Common
Law
,
and
an
Executor
who
is
to
have
the
residue
in
one
case
,
is
not
of
so
great
regard
as
the
Heir
,
who
is
to
have
the
residue
in
the
other
:
Settlement
for
the
raysing
of
4000
l.
Portion
to
two
Daughters
,
to
be
paid
at
Age
or
day
of
Marriage
,
one
dye
before
,
her
Portion
shall
not
go
to
her
Administrator
,
but
the
Heir
shall
take
profits
.
That
this
case
is
of
general
concern
to
all
Families
,
for
it
was
grown
a
thing
of
course
,
to
charge
the
younger
Childrens
Portions
upon
the
Heirs
Estate
,
which
would
not
have
been
charged
,
but
for
these
occasions
of
providing
for
Children
.
And
in
this
case
,
the
time
of
payment
never
hapning
,
but
becoming
impossible
by
the
death
of
the
Child
before
the
Portion
was
payable
,
the
Plaintiff
has
no
right
to
demand
it
:
And
it
were
hard
for
this
Court
to
make
a
Strain
against
the
Heir
,
where
the
consideration
failes
,
for
which
the
Portion
was
given
,
(
viz.
)
the
advancement
of
the
Children
;
and
altho'
there
were
a
Will
in
the
case
,
yet
it
refers
to
the
Deed
,
and
was
made
at
the
same
time
,
so
that
it
does
not
at
all
alter
the
consideration
of
the
Case
,
and
it
would
be
hard
to
decree
the
payment
presently
,
for
that
were
to
wrong
the
Heir
,
who
is
to
have
the
proceed
of
the
Mony
beyond
the
maintainance
until
the
time
of
payment
;
This
Court
saw
no
ground
to
take
it
from
the
Heir
at
Law
,
to
give
it
to
an
Administrator
,
who
might
have
been
a
Stranger
,
and
so
dismist
the
Plaintiffs
Bill
.
The
Presidents
used
in
this
Cause
for
the
Administrators
were
,
Rowley
contra
Lancaster
,
Brown
contra
Bruen
,
Clobery
contra
Lampen
.
The
President
for
the
Heir
,
Gold
contra
Emery
,
This
Cause
was
heard
in
Parliament
,
and
the
dismission
confirmed
.
Woodhall
contra
Benson
,
&
al'
36
Car.
2.
fo.
314.
THat
John
Wirley
deceased
,
Settlement
,
Will
.
being
possessed
of
divers
Mannors
and
Lands
for
320
years
,
that
the
said
Term
came
to
the
Defendants
Adams
and
Shagburgh
,
in
Trust
for
payment
of
Monies
,
and
after
in
Trust
for
Edward
Colley
,
Grandson
of
John
Wirley
for
his
life
,
and
after
his
decease
to
the
Plaintiff
Ann
,
late
Wife
of
the
said
Edward
Colley
,
and
the
said
Plaintiff
Ann
to
have
130
l.
per
Annum
for
her
life
,
which
Settlement
was
made
in
consideration
of
Marriage
,
and
after
the
death
of
Edward
Colley
,
the
Trustees
were
directed
to
permit
the
Heirs
Males
of
Edward
on
the
Plaintiff
Ann
to
be
begotten
,
to
receive
the
residue
of
the
profits
,
and
in
case
of
no
Issue
Male
of
her
,
there
is
provision
for
Daughters
,
and
Limitations
over
to
the
said
Edward
Colley's
Heirs
Males
;
and
it
was
also
declared
,
that
in
case
the
Plaintiff
Ann
should
Survive
the
said
Edward
,
then
she
to
have
the
moiety
of
the
Mannor
house
for
her
life
;
that
the
Trust
limited
to
the
Heirs
Males
of
Edward
,
and
the
Remainders
thereupon
depending
are
void
,
and
the
benefit
of
the
whole
Trust
was
in
Edward
,
for
that
the
Trust
would
not
be
Intailed
.
That
by
another
Deed
it
was
declared
by
the
said
Edward
Colley
and
his
said
Trustees
,
that
in
case
the
Plaintiff
Ann
should
have
no
Issue
,
she
should
have
the
whole
Mannor
house
above
the
130
l.
per
Annum
,
and
by
another
Deed
,
the
said
Edward
Colley
by
consent
of
his
said
Trustees
declared
,
in
case
the
said
Edward
should
die
leaving
the
Plaintiff
Ann
no
Issue
,
and
should
not
otherwise
dispose
of
the
residue
of
the
profits
of
the
premisses
over
and
above
the
Rents
and
Charges
payable
as
aforesaid
,
then
his
said
Trustees
after
his
death
,
should
by
Sale
or
Leases
of
the
premisses
pay
all
debts
,
and
after
all
debts
paid
,
to
permit
the
Plaintiff
to
receive
the
residue
of
the
profits
for
her
life
,
and
after
her
death
to
permit
the
right
Heirs
of
Edward
to
receive
the
same
:
That
the
Trust
for
the
right
Heirs
of
Edward
was
void
and
reverted
,
and
the
said
Edward
did
afterwards
declare
,
that
in
case
he
had
no
Issue
,
he
intended
to
leave
his
whole
Estate
to
the
Plaintiff
Ann.
That
the
said
Edward
,
22
Jan.
26
Car.
2.
made
his
Will
in
writing
,
reciting
the
Agreement
in
the
last
Deed
touching
payment
of
his
debts
,
and
after
some
small
Legacies
devised
to
his
said
Trustees
all
the
rest
of
his
personal
Estate
in
Trust
,
that
they
should
pay
his
debts
as
aforesaid
,
and
declared
his
meaning
to
be
,
that
his
Executors
after
his
debts
paid
should
deliver
the
overplus
to
the
Plaintiff
Ann
,
deducting
5
l.
a-piece
for
their
pains
and
all
charges
;
That
Edward
soon
after
dying
the
overplus
belonged
to
the
Plaintiff
,
and
the
said
Trustees
possessed
the
premisses
and
the
personal
Estate
,
and
the
Plaintiff
Ann
having
since
intermarryed
the
Plaintiff
Woodhal
,
whereby
the
whole
belongs
and
remains
unto
him
in
right
of
his
Wife
,
and
the
said
Trustees
ought
to
Assign
to
the
said
Plaintiff
:
But
the
said
Trustees
pretend
the
Trust
and
Term
aforesaid
,
doth
after
the
Plaintiff
Anns
death
belong
unto
the
Defendant
Gabriel
Ciber
and
Jane
his
Wife
,
she
being
the
only
Sister
and
Heir
at
Law
of
the
said
Edward
Colley
;
That
the
Defendant
Benson
knowing
of
the
Will
and
Settlement
aforesaid
,
purchased
the
premisses
of
the
Defendant
Ciber
and
his
Wife
,
and
the
Trustees
Assigned
to
him
.
The
Defendants
,
the
Trustees
insisted
,
That
their
names
were
used
in
the
Marriage
Settlement
of
Edward
Colley
,
upon
his
Marriage
with
the
Plaintiff
Ann
,
in
which
Settlement
was
recited
a
Conveyance
made
by
John
Wirley
,
whereby
he
did
demise
the
Trusts
therein
mentioned
,
and
the
premisses
in
Trusts
as
to
Clark's
Farm
,
for
such
persons
as
he
or
his
Executors
should
by
Will
or
otherwise
direct
,
and
several
other
persons
upon
several
other
Trusts
,
and
as
to
several
parcels
of
the
said
premisses
which
the
said
Defendant
conceived
,
was
the
Estate
lately
enjoyed
by
Edward
Colley
in
Trust
for
such
persons
as
the
said
John
Wirley
should
direct
,
and
for
want
of
such
appointment
to
Jane
his
Daughter
for
her
life
,
and
after
to
John
Colley
her
Son
and
Heir
and
his
Issue
Male
,
and
for
want
of
such
Issue
in
Trust
for
the
Daughters
of
the
said
Jane
,
and
after
the
death
.
of
Jane
and
John
,
Edward
was
intituled
,
and
he
together
with
Sir
John
Wirley
the
Surviving
Trustees
upon
Edwards
marrying
with
the
Plaintiff
,
did
Demise
to
the
said
Defendants
the
Trustees
,
the
Mannor-house
,
&c.
for
the
Term
of
20
years
in
Trust
to
pay
certain
Annuities
therein
mentioned
,
and
to
permit
Edward
Colly
for
his
life
to
receive
the
profits
of
the
residue
,
and
in
case
the
Marriage
took
effect
,
and
the
Plaintiff
Ann
Survived
him
,
then
to
pay
her
130
l.
per
Annum
for
her
life
,
and
after
Edwards
death
,
to
permit
the
Heirs
males
of
their
two
Bodies
to
receive
the
residue
of
the
profits
,
and
for
default
of
such
Issue
male
there
is
provision
for
Daughters
,
and
supposes
the
residue
of
the
profits
may
be
limited
to
any
Issue
male
of
Edwards
,
and
for
want
of
such
Issue
,
to
permit
the
Defendant
Jane
and
Ann
since
deceased
Sister
,
of
the
said
Edward
,
to
receive
the
profits
of
the
Estate
as
the
Deed
expresses
,
and
that
he
remembred
no
other
Agreement
than
what
is
mentioned
in
the
said
Deed
,
and
sets
forth
the
Deed
of
21
Jan.
26
Car.
2.
whereby
the
said
Defendants
,
the
Trustees
were
intituled
by
Sale
or
Leases
to
pay
debts
,
and
after
payment
thereof
(
if
the
Plaintiff
Ann
should
be
then
living
)
should
permit
her
to
receive
the
residue
of
the
profits
for
her
life
,
and
afterher
decease
the
right
Heirs
of
Edward
to
receive
the
same
;
that
after
the
time
of
executing
the
last
mentioned
Deed
,
the
said
Edward
made
his
Will
,
and
after
some
Legacies
took
notice
of
the
said
Deed
bearing
date
the
day
before
,
and
it
was
declared
thereby
,
that
the
Defendants
,
the
Trustees
should
out
of
the
profits
pay
all
his
debts
,
and
being
fearful
those
profits
should
not
do
,
did
Devise
to
them
all
the
rest
of
his
personal
Estate
,
and
made
them
Executors
,
and
after
debts
paid
the
residue
to
the
Plaintiff
Ann.
That
Nov.
1676
,
Edward
Colley
died
,
after
which
the
said
Defendant
proved
the
Will
,
and
entred
on
the
Estate
;
But
the
Defendants
Ciber
and
Jane
his
Wife
insisted
,
That
the
said
Defendant
Jane
being
the
only
Sister
and
Heir
to
Edward
Colley
,
are
after
his
debts
intituled
to
the
premisses
for
a
long
Term
,
to
commence
after
the
death
of
the
Plaintiff
Ann
,
and
have
sold
their
interest
to
the
Defendant
Benson
.
Upon
reading
the
said
Deed
and
Will
,
A
Term
in
gross
,
and
not
to
be
Entailed
.
the
Lord
Keeper
North
was
of
opinion
,
that
the
said
Term
so
as
aforesaid
Created
,
was
a
Term
in
gross
,
and
so
not
capable
of
being
intailed
,
and
therefore
it
could
not
descend
to
the
Heir
of
Edward
Colley
,
but
that
the
same
should
be
liable
to
the
payment
of
his
Debts
,
and
that
the
Plaintiff
Ann
should
hold
the
130
l.
per
An.
for
her
life
,
and
after
the
said
Debts
paid
,
the
Plaintiff
Ann
should
receive
the
profits
of
the
whole
Estate
for
her
life
,
charged
with
the
said
Annuity
,
and
the
said
Plaintiffs
were
to
redeem
the
Mortgage
to
the
Defendant
Woodward
:
But
as
to
the
Residue
of
the
said
Term
,
after
the
death
of
the
Plaintiff
Ann
,
and
debts
paid
,
how
the
same
should
be
disposed
,
a
Case
was
ordered
to
be
made
.
A
Case
being
Stated
,
this
Cause
came
to
be
heard
thereon
before
the
Lord
Chancellor
Jefferies
,
and
all
the
former
pleadings
being
opened
,
as
also
the
Defendant
Cibers
cross
Bill
,
which
was
to
this
effect
(
viz.
)
to
have
the
said
Term
of
820.
years
to
attend
the
Inheritance
,
and
the
Case
stated
,
appearing
to
be
no
otherwise
than
before
is
set
forth
.
His
Lordship
on
reading
the
said
Deed
and
Will
,
A
Residue
of
a
Term
after
debtspaid
and
a
life
determined
,
Decreed
not
to
the
Residuary
Legatee
,
but
to
the
Heir
.
the
Question
being
,
who
shall
have
the
remainder
of
the
Term
in
the
said
Lease
,
whether
the
Plaintiff
Ann
as
Residuary
Legatee
,
or
whether
she
shall
have
only
an
Estate
for
life
,
his
Lordship
declared
,
that
the
Deed
and
Will
do
make
but
one
Will
,
and
by
them
there
was
no
more
intended
to
the
Plaintiff
Ann
,
than
an
Estate
for
her
life
,
and
that
she
ought
to
enjoy
the
whole
Mansion
House
cum
pertin
'
during
her
life
,
and
also
the
overplus
of
the
profits
of
the
Residue
of
the
said
Estate
after
Debts
and
Legacies
paid
,
and
the
Defendant
Benson
who
purchased
the
Inheritance
of
Ciber
,
to
enjoy
the
same
,
discharging
all
things
as
aforesaid
.
Hall
contra
Dench
,
36
Car.
2.
fo.
799.
THat
the
Plaintiff
Grace
Hall
,
Will
.
Revocation
.
being
Daughter
of
William
Knight
deceased
,
who
was
Son
of
Susanna
,
one
of
the
Sisters
and
Coheirs
of
Thomas
Bridger
deceased
,
which
said
Thomas
Bridger
being
seized
in
Fee
of
Lands
in
Binstead
and
Middleton
,
and
having
no
Children
,
made
his
Will
in
1663.
by
which
he
gave
to
Tho.
Knight
Son
of
the
said
Willi.
Knight
,
all
his
Lands
in
Binstead
to
the
said
Thomas
Knight
,
and
the
Heirs
of
his
Body
,
and
for
want
of
such
issue
,
then
to
the
Plaintiff
Grace
,
and
the
Heirs
of
her
Body
,
with
Remainders
over
,
and
by
the
same
Will
,
Devised
one
Moiety
of
the
Lands
in
Middleton
,
to
the
said
Thomas
Knight
,
and
the
Heirs
of
his
Body
,
with
the
like
Remainders
over
,
and
sometimes
after
the
said
Will
,
the
said
Thomas
Bridger
Mortgaged
the
said
Lands
in
Binstead
,
to
John
Comber
and
his
Heirs
for
500
l.
and
the
said
Bridger
repaid
the
500
l.
and
had
the
Mortgage
delivered
up
and
Cancelled
,
but
no
Reconveyance
of
the
Lands
,
and
that
the
said
Comber
after
that
,
was
but
a
Trustee
for
Bridger
the
Mortgagee
,
who
in
1682.
declared
,
that
the
Will
he
made
in
1663.
should
stand
,
and
be
his
last
Will
,
and
then
denied
:
But
the
Defendant
Dench
having
got
the
Cancelled
Deed
in
his
Custody
,
and
the
Plaintiff
brought
an
Ejectment
under
the
Title
of
the
Will
,
and
got
a
verdict
for
the
Lands
in
Middleton
,
but
the
Defendant
at
the
Tryal
,
setting
up
a
Title
in
the
Defendant
Comber
,
upon
the
Cancelled
Mortgage
for
the
Lands
in
Binstead
,
a
Verdict
passed
for
the
Defendant
,
so
to
have
the
said
Mortgage
deed
delivered
up
,
and
the
Plaintiff
to
enjoy
the
premisses
according
to
the
said
Will
,
is
the
Bill
.
The
Defendants
as
Co-heirs
at
Law
to
Bridger
,
insist
,
That
the
Testator
Bridger
,
never
intended
that
the
Estate
should
go
as
that
Will
directed
,
in
regard
he
soon
after
the
said
Will
,
Mortgaged
the
same
to
Comber
,
and
besides
the
Legatees
and
Executors
in
the
said
Will
,
were
most
of
them
dead
before
the
said
Bridger
,
and
the
Mortgage
money
was
not
paid
till
after
the
Estate
forfeited
,
and
that
the
Mortgage
to
Comber
,
was
an
absolute
Revocation
of
the
said
Will
,
and
upon
an
Ejectment
brought
by
the
Plaintiff
under
the
said
Will
,
the
Defendants
obtained
a
Verdict
for
the
Lands
in
Binstead
,
wherein
the
validity
of
the
said
Will
was
in
issue
.
The
Plaintiffs
insist
,
That
the
Verdict
obtained
by
the
Defendants
as
aforesaid
,
was
,
by
reason
the
Title
in
Law
was
in
Comber
the
Mortgagee
,
and
not
upon
the
Vallidity
of
the
Will
,
and
that
a
Verdict
had
been
had
in
affirmation
of
the
said
Will
for
other
Lands
therein
mentioned
,
and
the
Testator
was
in
possession
of
the
premisses
at
the
time
of
his
death
.
This
Court
(
the
Defendants
insisting
to
have
it
tryed
at
Law
,
whether
a
Revocation
of
the
said
Will
or
not
)
declared
there
was
no
Colour
to
direct
any
Trial
at
Law
in
this
Case
,
for
that
on
reading
the
proofs
,
it
plainly
appeared
,
When
the
Mortgage
money
is
paid
,
the
Mortgagee
and
his
Heirs
are
Trustees
for
the
Mortgagor
and
his
Heirs
.
that
the
Testator
expresly
declared
,
the
said
Will
should
be
his
last
Will
,
and
that
upon
such
an
express
proof
,
it
would
be
vain
to
direct
a
Tryal
at
Law
,
and
declared
,
that
when
the
Mortgage
money
was
paid
,
the
Morgagee
and
his
Heirs
immediately
from
that
time
,
became
Trustees
for
the
Mortgagor
and
his
Heirs
,
and
the
Court
having
considered
of
several
presidents
,
as
well
Antient
as
Modern
,
A
Will
,
and
after
that
a
Mortgage
,
the
Will
is
Republished
its
a
good
Will
,
and
not
revoked
.
which
were
full
in
the
point
,
that
notwithstanding
such
Revocation
,
yet
there
was
a
Republication
of
the
Will
,
and
that
the
same
was
a
Republication
of
such
a
nature
,
that
made
the
said
Will
a
good
Will
,
and
decreed
the
Defendant
Grace
,
to
enjoy
the
premisses
according
to
the
said
Will
.
This
Cause
came
to
be
Re-heard
before
the
Lord
Chancellor
Jefferies
,
who
was
well
satisfied
with
the
Republication
,
and
declared
,
that
notwithstanding
the
said
Mortgage
,
the
Will
was
a
good
Will
,
and
not
revoked
,
and
confirmed
the
former
decree
.
Pullen
contra
Serjeant
,
R6
Cor.
2.
fo.
570.
THe
Bill
is
to
have
a
discovery
of
the
Estate
of
Ann
Nurse
deceased
,
and
a
distribution
to
be
made
,
and
the
Plaintiffs
to
have
their
proportions
thereof
,
they
being
next
of
Kin
to
the
said
Ann
Nurse
,
(
viz.
)
the
Plaintiff
Ann
,
Wife
of
the
Plaintiff
Pullen
,
Sister
by
the
Mothers
side
of
the
said
Testatrix
Ann
Nurse
,
and
the
other
Plaintiffs
,
are
of
the
same
degrees
of
Consanguinity
,
and
so
are
Intituled
to
their
equal
shares
of
her
Personal
Estate
,
Executrix
dies
before
the
Testator
,
there
shall
be
Administration
,
cum
Testamento
annex
'
.
and
the
said
Ann
Nurse
,
made
Ann
the
Wife
of
William
Hodges
Executrix
,
who
died
before
the
said
Ann
Nurse
,
and
the
said
Ann
Nurse
died
without
altering
of
her
Will
;
That
after
her
death
,
the
Defendant
Serjeant
a
Relation
to
the
said
Ann
Nurse
,
took
Administration
of
the
said
Ann
Nurse's
Personal
Estate
.
The
Defendant
insists
,
That
he
being
only
Brother
,
and
one
of
the
nearest
Relations
to
Ann
Nurse
the
Testatrix
and
her
said
Executrix
dying
before
she
Administred
with
the
Will
annexed
,
and
paid
Debts
and
Legacies
,
and
is
willing
to
Distribute
as
the
Court
shall
direct
,
and
craves
the
Direction
of
the
Court
,
whether
the
Plaintiffs
being
of
the
half-blood
,
shall
have
equal
proportion
with
the
Defendant
and
others
of
the
whole
blood
.
This
Court
declared
,
They
of
the
half-blood
,
shall
have
equal
share
of
the
Personal
Estate
,
with
those
of
the
whole
blood
.
That
the
Plaintiff
who
are
of
the
half
blood
to
the
said
Ann
Nurse
,
were
equally
intituled
to
a
Distribution
of
the
said
Estate
,
and
to
an
equal
share
of
the
Defendant
Serjeant
and
others
,
who
are
of
the
whole
blood
,
and
decreed
the
same
accordingly
.
Keale
contra
Sutton
,
36
Car.
2.
fo.
773.
THE
Defendant
being
Arrested
in
the
Marshalls
Court
,
A
Prohibition
granted
,
for
Arresting
in
the
Marshalls
Court
,
for
matters
arising
in
Berkshire
.
for
matters
arising
in
Berkshire
,
out
of
the
Jurisdiction
of
that
Court
.
This
Court
granted
a
Prohibition
,
which
being
Disobeyed
,
an
Attachment
was
ordered
against
the
Persons
Disobeying
the
same
,
and
the
Defendant
to
proceed
upon
the
same
.
Carvill
contra
Carvill
,
36
Car.
2.
fo.
142.
THat
the
Testator
Robert
Carvill
by
Will
,
the
fifth
of
June
1675.
Will
.
and
thereby
gave
the
Plaintiffs
several
Legacies
,
and
also
Legacies
to
the
Defendants
,
which
he
appointed
to
be
paid
by
Sale
of
Lands
,
after
the
death
of
his
Sister
Rosamond
,
whom
with
the
Defendants
,
he
made
Executors
,
and
gave
his
said
Executors
(
residium
bonorum
)
and
in
1678.
died
,
and
the
said
Rosamond
is
dead
.
That
the
Defendant
Robert
Carvill
being
the
Eldest
Son
of
Henry
the
Testators
Brother
,
is
his
Heir
at
Law
,
who
insists
,
That
the
Testator
made
no
such
Will
,
and
that
he
claims
the
said
Lands
by
Dissent
,
or
if
any
such
Will
was
made
,
the
Testator
was
non
compos
at
the
making
thereof
,
and
that
no
Person
was
named
in
the
said
Will
,
to
Sell
the
said
Lands
,
and
insists
on
the
Act
against
Frauds
and
Perjuries
,
and
Avers
,
Statutes
of
Frauds
and
Perjuries
.
That
the
Testator
died
not
till
1680.
and
that
he
did
not
make
and
sign
,
that
Will
according
to
the
said
Act
,
there
being
no
Witnesses
that
have
Attested
it
according
to
that
Act
;
and
doth
therefore
insist
,
that
the
same
is
void
in
Law
,
as
to
the
Devise
of
Lands
,
and
that
the
same
are
come
to
him
as
Heir
,
and
he
hath
since
Recovered
the
same
at
Law
,
and
insists
also
,
that
the
said
Will
is
void
in
Law
,
because
no
Person
is
appointed
to
make
Sale
,
and
being
but
a
voluntary
Disposition
for
payment
of
Legacies
,
and
not
Debts
,
the
Plaintiff
ought
to
have
no
Relief
,
to
make
the
same
good
in
Equity
to
the
Disinherison
of
the
Defendant
,
the
Heir
at
Law
.
But
the
Plaintiffs
insisted
,
Though
the
Testator
died
after
the
said
Act
,
viz.
December
1678.
yet
the
Will
was
made
long
before
the
24th
of
June
1677.
and
so
is
not
within
the
intention
of
the
said
Act
,
and
that
though
no
Person
be
in
express
words
named
to
Sell
the
Lands
,
yet
the
Sale
ought
to
be
made
by
his
Executors
,
and
the
Heir
ought
to
be
Compelled
to
joyn
in
the
Sale
.
The
Defendant
the
Heir
insisted
,
That
though
the
Will
might
be
out
of
the
provision
of
the
Act
,
being
made
before
the
making
of
the
Act
,
yet
there
is
no
good
proof
,
that
any
such
Will
was
made
or
published
by
the
Testator
.
This
Court
directed
it
to
Law
on
this
Issue
,
Devisavit
vel
non
devisavit
,
Will
,
or
not
Will
.
and
a
Verdict
passed
for
the
Plaintiff
.
This
Cause
coming
to
be
heard
on
the
equity
reserved
,
and
this
Court
being
satisfied
with
the
Verdict
which
was
(
viz.
)
That
the
said
Robert
Carvill
the
Testator
,
did
make
and
publish
such
Will
,
and
thereby
devised
the
said
Lands
to
be
sold
as
aforesaid
.
This
Court
upon
reading
the
Will
,
Lands
Devised
to
be
sold
,
and
now
express't
to
sell
the
same
,
Executors
Decreed
to
sell
.
decreed
the
said
Lands
to
be
sold
by
the
said
Executors
,
and
the
said
Legacies
to
be
paid
thereout
,
according
to
the
said
Will
.
Norton
contra
Mascall
,
36
Car.
2.
fo.
544.
THE
Suit
is
to
have
a
voluntary
Award
performed
,
A
voluntary
Award
Decreed
,
to
be
performed
.
the
Defendant
insisted
,
It
being
a
voluntary
Submission
of
the
parties
,
and
the
Reference
not
directed
by
this
Court
,
the
Award
was
void
,
and
ought
not
to
be
performed
and
demurred
by
the
Plaintiffs
Will
.
The
Master
of
the
Rolls
ordered
Presidents
,
and
upon
reading
of
the
Award
,
declared
,
he
saw
no
Cause
to
relieve
the
Plaintiff
,
but
dismissed
the
Bill
.
This
Cause
was
Re-heard
by
the
Lord
Chancellor
Jefferies
,
who
declared
,
he
saw
no
cause
why
the
said
Award
should
be
impeached
;
but
it
was
fit
that
the
same
should
be
performed
,
being
in
part
executed
and
assented
unto
,
and
decreed
the
same
to
stand
confirmed
,
and
the
Defendant
to
perform
the
same
.
REPORTS
OF
CASES
Taken
and
Adjudged
in
the
COURT
of
CHANCERY
In
the
Reign
of
King
JAMES
II.
Attorney
General
contra
Vernon
,
1
Jac.
2.
fo.
388.
THE
scope
of
the
Information
in
this
Cause
being
to
set
aside
Letters
Patentsobtained
by
the
Defendant
Vernon
,
Information
against
Patentees
of
Needwood
Forest
.
in
the
Names
of
the
Defendants
Browne
and
Boheme
,
in
nature
of
a
Grant
or
Contract
under
the
Seal
of
the
Dutchy
of
Lancaster
,
of
the
Honour
of
Tudbury
and
Forest
of
Needwood
,
at
a
great
undervalue
,
wherein
his
late
Majesty
was
surprized
;
His
Majesties
Attorney
General
by
Information
setting
forth
,
That
his
late
Majesty
being
seised
in
Fee
in
right
of
his
Crown
,
as
parcel
of
his
Dutchy
of
Loncaster
,
of
the
said
Honour
of
Tudbury
,
of
the
value
of
2000
l.
per
Annum
,
and
also
of
the
benefit
of
Timber
Trees
,
Woods
,
&c.
of
the
value
of
30000
l.
whereon
the
Defendants
commit
Wast
,
pretending
Title
to
the
premisses
by
Grant
of
the
Crown
from
his
late
Majesty
,
Grant
obtained
per
Surprize
.
whereas
such
Grant
was
unusually
obtained
,
and
by
surprize
,
for
that
about
Sept.
1683.
for
some
small
Sum
,
and
getting
some
interest
in
Ground
at
Sheerness
,
to
the
value
of
about
500
l.
and
endeavouring
to
value
the
Lands
at
Sheerness
at
3000
l.
in
October
following
they
did
prefer
a
Petition
for
the
said
Grant
,
and
obtained
a
Reference
thereof
to
Sir
Thomas
Chichley
,
Chancellor
of
the
Dutchy
,
and
hastily
obtained
a
Report
in
November
,
and
within
two
days
after
the
Report
,
a
Warrant
was
signed
for
passing
the
Grant
,
though
endeavours
were
used
to
stop
it
by
Command
from
his
late
Majesty
,
and
the
Lords
of
the
Treasury
,
the
19th
of
the
same
November
,
and
particular
Application
made
to
the
Chancellor
of
the
Dutchy
,
he
then
denying
he
knew
thereof
,
and
it
was
not
known
that
any
Grant
was
thereof
,
till
the
particular
thereof
was
found
in
a
Scriveners
Shop
about
a
Month
after
the
passing
thereof
,
contrary
to
the
course
of
the
Dutchy
,
there
being
no
such
Grant
yet
Registred
or
Inrolled
,
to
the
prejudice
of
his
Majesty
,
and
the
Nobility
and
others
,
having
dependency
there
,
the
said
Defendant
having
given
untrue
Particulars
of
the
most
profitable
Matters
thereof
,
to
the
value
of
some
Thousand
pounds
,
wherefore
the
said
Grant
ought
to
be
delivered
up
to
be
Cancelled
.
The
Defendant
Vernon
insisted
,
That
the
Defendants
having
long
Leases
of
the
said
premisses
unexpired
of
a
great
yearly
Rent
,
and
also
Offices
within
the
premisses
,
upon
which
hath
been
expended
great
Sums
of
Mony
in
Buildings
and
Repairs
,
whereby
his
Majesties
antient
Rent
hath
been
much
increased
;
and
the
Defendant
Vernon
being
informed
of
some
endeavours
used
to
obtain
the
Reversion
in
Fee
of
the
said
premisses
,
he
petitioned
his
Majesty
in
September
1683.
in
the
Name
of
the
other
Defendant
Browne
,
to
prevent
a
Merger
of
the
said
Leases
,
and
on
the
29th
of
the
said
September
obtained
a
Reference
to
the
Chancellor
of
the
Dutchy
of
Lancaster
,
and
19
November
1683.
the
said
Chancellor
made
a
Report
,
and
thereupon
20
Nov.
1683.
his
Majesty
signed
a
Warrant
,
dated
the
19th
of
the
same
Month
,
authorizing
the
Chancellor
to
make
a
Grant
of
the
premisses
:
That
thereupon
the
Defendant
Vernon
,
by
Deed
20
Nov.
1683.
between
his
late
Majesty
of
the
one
part
,
and
himself
on
the
other
did
sell
unto
his
Majesty
all
those
4●
Acres
in
the
Isle
of
Sheppey
,
whereon
his
Majesty's
Fort
of
Sheerness
is
built
:
That
in
consideration
thereof
,
and
7000
l.
paid
by
the
Defendant
for
his
Majesty's
use
▪
his
said
Majesty
21
Nov.
granted
unto
the
Defendants
Browne
and
Boheme
,
i●
Trust
for
the
Defendant
Vernon
,
all
the
said
premisses
.
And
the
said
Defendant
Vernon
insists
.
That
the
said
Patent
passed
regularly
,
and
is
effectual
in
Law
,
and
ought
not
to
be
impeached
,
the
impeachment
whereof
being
in
derogation
of
other
his
Majesties
Grants
,
and
the
Consideration
is
equivalent
to
the
Grant
,
his
Majesties
Favour
being
an
Ingredient
thereunto
,
and
the
premisses
mightily
over-valued
by
the
Surveyor
,
and
the
said
Patent
was
le●●
with
a
Scrivener
,
whereon
to
raise
10000
l.
but
the
same
was
not
thought
a
sufficient
Security
for
such
a
Sum
:
That
the
Defendant
Browne
for
10300
l.
hath
purchased
the
said
premisses
of
Vernon
,
and
insists
on
the
said
Grant
as
good
in
Law
and
is
advised
that
this
Court
will
be
tender
in
examining
the
Methods
of
the
passing
the
said
Grant
,
when
it
hath
received
the
allowance
of
the
proper
Officer
,
by
having
the
Seal
affixed
to
it
.
His
Majesties
Council
insisted
,
Information
by
English
Bill
,
proper
to
relieve
against
a
Patent
.
Patent
not
Reversable
per
Scire
facias
.
That
this
Suit
is
properly
brought
in
this
Court
by
English
Bill
,
to
be
relieved
against
the
said
Grant
or
Patent
,
and
that
no
Scire
facias
can
be
brought
in
the
Dutchy
,
or
in
this
Court
for
the
Reversal
thereof
,
and
if
a
Bill
or
Information
(
as
this
case
is
)
should
not
be
admitted
,
his
Majesty
would
be
in
a
worse
condition
than
any
of
his
Subjects
,
considering
the
great
over-value
,
and
the
quick
,
hasty
,
and
unusual
manner
of
passing
the
Pattent
,
contrary
to
all
Patents
of
that
nature
,
it
passing
neither
by
Privy
Seal
,
Privy
Signet
,
or
any
immediate
Warrant
,
but
the
Chancellor
of
the
Dutchy
acted
therein
in
all
Capacities
,
and
passed
the
Grant
after
Notice
and
fresh
pursuit
by
his
late
Majesty
for
recalling
the
same
,
and
express
Prohibition
,
that
no
Mony
should
be
received
.
This
Court
,
assisted
with
several
Judges
,
were
all
clear
of
Opinion
,
That
this
Suit
was
proper
by
English
Bill
,
and
that
the
Patent
could
not
be
annulled
or
made
void
by
Scire
facias
,
or
otherwise
,
at
the
Common
Law
,
and
the
Bill
being
to
have
remedy
for
his
Majesty
,
against
Fraud
,
Surprize
and
Deceit
,
which
their
Lordships
declared
was
made
out
,
and
that
the
King
was
most
grosly
deceived
and
abused
as
to
the
value
,
and
that
therefore
his
Majesty
ought
to
be
relieved
in
this
Court
or
otherwise
he
would
be
remediless
,
and
so
in
a
worse
condition
than
any
of
his
Subjects
in
a
case
of
this
Nature
;
and
this
Court
with
the
said
Judges
,
taking
into
consideration
the
excessive
over
value
which
was
offered
to
be
made
good
by
the
Surveyor
,
the
surprize
and
deceit
,
and
the
speedy
and
unusual
passing
the
said
Grant
,
and
that
no
Mony
was
paid
till
the
Grant
was
ordered
to
be
stopt
,
and
directions
for
this
prosecution
,
which
was
before
Livery
and
Seisin
.
This
Court
declared
,
and
was
fully
satisfied
,
That
in
this
Case
his
Majesty
ought
to
be
relieved
,
Grant
and
Inrolment
in
the
Dutchy-Court
vacated
,
and
the
Patentees
decreed
to
Reconvey
to
the
King
.
and
the
said
Grant
set
aside
and
made
void
,
and
decreed
the
same
accordingly
,
and
the
Inrolment
thereof
in
the
Dutchy-Court
vacated
,
and
the
Defendants
to
procure
those
in
whom
the
Estate
in
Law
is
to
Reconvey
unto
his
Majesty
,
and
the
Defendants
at
liberty
to
apply
to
his
Majesty
,
for
to
have
the
Mony
paid
back
,
which
was
paid
to
Sir
Thomas
Chichley
and
Cuxton
,
as
aforesaid
.
Beckford
contra
Beckford
,
1
Jac.
2.
fo.
196.
THat
Richard
Beckford
Citizen
and
Freeman
of
London
,
had
several
Children
,
and
by
his
Will
in
writing
after
Debts
and
Funeral
Charges
paid
,
appointed
one
full
third
part
of
his
Personal
Estate
to
the
Plaintiff
Frances
Beckford
his
Relict
,
according
to
the
Custom
of
the
City
of
London
,
and
declared
that
Frances
and
Elizabeth
,
two
of
his
Daughters
,
had
been
fully
advanced
in
his
life-time
,
and
that
Mary
and
Jane
,
two
other
Daughters
had
not
,
and
directed
they
should
bring
their
Portions
they
had
received
,
into
the
third
part
of
his
Personal
Estate
,
belonging
unto
his
unpreferred
Children
,
and
they
should
have
equal
shares
with
his
unpreferred
Children
.
Now
the
question
between
the
Plaintiff
Frances
,
and
the
unpreferred
Children
how
the
said
Estate
,
should
be
divided
by
the
Custom
of
London
,
the
Plaintiff
Frances
insisting
,
that
the
Children
not
fully
Advanced
,
ought
to
bring
what
they
had
received
into
the
whole
Estate
,
and
then
she
ought
to
have
one
full
third
part
of
the
whole
Personal
Estate
,
insisting
,
That
every
Widow
of
a
Freeman
,
ought
by
the
Custom
of
London
,
to
be
indowed
with
one
full
third
part
of
the
whole
Personal
Estate
.
This
Court
declared
the
Custom
to
be
,
The
unadvanced
Children
by
the
Custom
of
London
,
to
bring
in
what
they
had
received
into
Hotch-potch
with
with
the
Orphanage
thirds
,
after
the
Estate
is
divided
into
thirds
,
and
not
with
the
whole
Estate
.
That
the
Testators
two
Children
,
Mary
and
Jane
,
who
were
not
fully
Advanced
,
were
to
bring
what
they
had
received
into
Hotch-potch
with
the
Orphanage
thirds
,
after
the
Estate
is
divided
into
thirds
,
and
not
into
Hotch
potch
with
the
whole
Estate
,
and
decreed
accordingly
.
And
what
hath
been
received
by
any
one
,
more
than
their
share
and
Legacies
,
is
to
be
Repaid
,
as
the
Master
shall
appoint
.
Halliley
contra
Kirtland
,
1
Jac.
2.
fo.
566.
THat
John
Park
Mortgaged
Lands
to
the
Defendant
Kirtland
for
60
l.
Mortgage
.
and
was
also
indebted
to
the
Defendant
Sanderson
50
l.
on
Bond
,
and
the
said
Kirtland
wanting
his
money
,
Assigned
the
said
Mortgage
to
the
said
Sanderson
,
so
that
Sanderson
on
payment
to
him
the
money
paid
to
Kirtland
,
on
the
said
Mortgage
,
and
his
50
l.
on
Bond
and
Interest
,
is
willing
to
Reconvey
to
the
Plaintiff
,
which
they
refuse
to
do
.
This
Court
in
as
much
as
the
Estate
so
vested
in
the
Defendant
as
aforesaid
,
The
Plaintiff
decreed
to
pay
off
a
Bond
of
50
l.
as
well
as
the
Mortgage
money
upon
Redemption
.
is
a
Chattel
Lease
,
and
so
liable
to
debts
,
and
the
Defendant
having
an
Assignment
of
the
Mortgage
,
and
his
debt
on
Bond
being
a
just
debt
,
declared
,
that
the
Plaintiff
ought
not
to
be
let
in
to
a
Redemption
of
the
said
Mortgage
,
but
upon
payment
of
the
said
50
l.
and
interest
due
on
the
said
Bond
,
as
well
as
the
Mortgage
money
,
and
decreed
accordingly
.
Coltman
contra
Warr
,
1
Jac.
2.
fo.
566.
THis
Court
would
not
Rehear
a
Cause
after
decree
Signed
and
Inrolled
,
No
re-hearing
after
a
Decree
Signed
and
Inroled
.
notwithstanding
the
said
Cause
had
been
opened
since
the
Inrolement
,
in
order
to
Re-hearing
,
and
discharged
the
Order
for
Re-hearing
.
Jones
&
al'
contra
Henley
,
1
Jac.
2.
fo.
995.
SIR
Robert
Henley
by
Will
gives
100
l.
Legacies
.
a
piece
to
all
his
Servants
,
which
Will
is
Dated
the
10th
of
November
1680.
and
Sir
Robert
lived
afterwards
till
the
7th
of
August
1681.
but
made
no
Republication
of
the
said
Will
,
and
the
Plaintiffs
as
Servants
to
Sir
Robert
demands
100
l.
apiece
Legacy
:
That
these
Servants
,
(
viz.
)
Jones
,
Clerk
,
Meeke
,
Serle
,
and
Hanbury
,
were
all
Menial
Servants
before
the
10th
of
November
1680.
and
so
continued
till
the
7th
of
August
1681.
That
these
Servants
,
(
viz.
)
Litchfield
,
Davies
,
Deacon
,
Booth
,
Noon
,
&c.
were
all
Servants
at
the
time
of
his
death
,
but
were
not
in
his
Service
,
at
the
time
of
making
of
the
Will
;
that
Cook
and
Hawkes
were
both
Servants
at
the
10th
of
November
1680.
but
before
the
7th
of
August
1681.
were
discharged
from
his
Service
:
That
William
Harris
son
was
a
Menial
Servant
the
10th
of
November
1680.
but
dyed
before
the
7th
of
August
1681.
That
Castilian
Goddard
,
&c.
were
Servants
at
large
,
but
not
Menial
,
(
viz.
)
as
Steward
and
Bailiff
before
the
10th
of
November
1680.
and
so
continued
till
the
said
1681.
but
did
not
Inhabit
in
the
House
:
That
Stranger
and
Long
were
Chairmen
,
and
agreed
with
after
the
said
1680.
at
20
s.
per
week
so
.
The
Plaintiffs
insist
,
That
such
that
were
his
Servants
at
the
time
of
his
death
,
ought
to
have
the
benefit
of
the
said
Devise
.
But
the
Defendant
insisted
,
That
none
of
the
Plaintiffs
can
be
any
ways
intituled
to
that
benefit
,
but
only
such
as
were
Menial
Servants
,
before
the
publishing
of
the
said
Will
,
and
did
so
continue
all
along
to
be
Menial
Servants
,
and
live
in
the
House
with
him
,
to
the
time
of
his
death
.
This
Court
declared
,
Who
are
Servants
capable
to
receive
Legacies
by
the
general
words
of
a.
Will
,
To
all
my
Servants
&c.
that
none
of
the
said
Plaintiffs
,
but
such
as
were
Servants
to
the
said
Sir
Robert
,
before
the
making
the
said
Will
,
and
did
so
continue
to
be
Servants
to
him
,
until
the
time
of
his
death
,
could
have
any
pretence
to
the
said
Legacy
,
and
such
only
as
were
his
Menial
Servants
,
and
lived
all
along
in
the
House
with
him
,
from
before
the
10th
of
November
1680.
until
the
7th
of
August
1681.
and
no
others
,
and
ordered
that
Jones
,
Clerk
,
&c.
only
,
and
no
other
of
the
Plaintiffs
be
paid
their
Legacy
of
a
100
l.
a
piece
by
the
said
Defendant
,
and
ordered
the
Bill
as
to
all
the
other
Plaintiffs
,
to
be
dismissed
.
Fenwick
,
&
al'
contra
Woodroffe
,
&
al'
1
Jac.
2.
fo.
400.
THat
Doctor
Smalwood
deceased
,
Agreement
on
Marriage
to
purchase
Lands
.
by
Deed
in
1672
,
conveys
the
Land
and
premisses
to
Trustees
and
their
Heirs
,
to
the
use
of
himself
for
life
,
Remainder
to
Theophania
his
Wife
for
life
,
Remainder
to
Mary
their
sole
Daughter
,
and
the
Heirs
of
her
Body
,
Remainder
to
his
own
right
Heirs
,
with
a
proviso
,
That
if
his
said
Daughter
Mary
,
should
then
after
Marry
in
his
life
time
without
his
privity
and
consent
first
had
,
then
all
and
every
the
uses
and
limitations
therein
mentioned
and
made
should
cease
and
be
utterly
void
,
That
the
said
Mary
did
intermarry
with
Sir
John
Lloyd
,
in
the
Doctors
life
time
with
his
consent
,
who
upon
a
Settlement
made
on
the
said
Mary
was
to
have
2000
l.
Portion
,
1500
l.
whereof
was
to
be
laid
out
in
Lands
for
increase
of
Marys
Joynture
,
and
that
she
had
Issue
by
him
the
Plaintiff
Ann.
That
Sir
John
Lloyd
died
,
and
the
said
Dame
Mary
intermarryed
with
one
Hutchinson
,
without
the
consent
,
good
likeing
,
or
privity
of
the
said
Doctor
Smalwood
her
Father
;
That
in
1683
,
the
said
Doctor
Smalwood
died
,
having
by
his
Will
in
1683
,
made
the
Defendant
James
Smalwod
and
others
Executors
,
and
thereby
devised
and
settled
his
Estate
real
and
personal
,
(
viz.
)
according
to
his
Settlement
formerly
made
,
he
gave
his
said
Daughter
Dame
Mary
all
his
Lands
during
her
life
,
if
his
Executor
should
so
think
sit
,
and
in
case
they
should
not
to
his
Granchild
Ann
Love
,
and
in
case
of
failure
to
his
Grandchild
,
Theophania
Hutchinson
during
her
life
,
and
in
case
of
failure
to
his
Nephew
,
the
Defendant
James
Smalwood
for
ever
:
And
his
personal
Estate
,
as
Mony
,
Books
,
Plate
,
&c.
to
be
divided
amongst
his
said
Daughters
,
Grandchildren
and
Nephew
James
Smalwood
at
the
discretion
of
his
Executors
,
so
to
have
the
said
1500
l.
which
rested
in
Dr.
Smalwoods
Hands
,
being
part
of
the
2000
l.
Portion
,
Covenanted
by
Dr.
Smalwood
to
be
laid
out
in
Lands
by
the
said
Doctor
for
increase
of
Mary's
Joynture
aforesaid
,
to
be
laid
out
according
to
the
Doctors
Covenants
;
and
to
have
the
benefit
of
the
said
Settlement
in
1672
,
is
the
Plaintiff
Bill
.
The
Defendant
James
Smalwood
pleads
,
and
claims
a
right
to
the
Estate
of
Doctor
Smalwood
by
his
Will
,
and
by
the
said
Deed
of
1672
,
the
said
Dame
Mary
having
by
her
Marriage
with
the
said
Hutchinson
in
the
Doctors
life
time
,
without
his
privity
or
consent
,
broke
the
Condition
,
by
which
she
was
to
have
enjoyed
the
Lands
in
that
Settlement
,
and
prays
the
Judgment
of
this
Court
,
the
Estate
being
limited
to
him
as
aforesaid
;
And
he
further
pleads
and
insists
,
That
Dame
Mary
ought
not
to
have
any
discovery
of
the
Writings
of
the
Doctors
Estate
,
because
he
the
said
James
Smalwood
,
and
the
other
Defendant
Woodroff
have
not
yet
consented
,
that
she
should
have
any
part
of
the
Doctors
Estate
,
which
power
was
given
them
by
the
Doctors
Will
as
aforesaid
;
and
whether
he
and
the
other
Defendant
ought
to
consent
as
aforesaid
,
submits
to
this
Court
.
But
the
Plaintiffs
insist
,
Lands
setled
on
a
Daughter
provided
she
Marry
by
consent
,
and
she
Marries
by
consent
,
after
she
Marries
a
second
Husband
without
consent
,
this
second
Marriage
is
no
breach
of
the
proviso
.
That
they
admit
such
proviso
in
the
Deed
of
1672
,
that
in
case
the
said
Dame
Mary
should
Marry
in
the
life
time
of
the
Doctor
without
his
privity
,
consent
and
liking
,
then
all
and
every
the
Limitations
therein
should
cease
and
be
void
:
But
insist
,
That
the
Marriage
between
Sir
John
Lloyd
and
Dame
Mary
was
concluded
by
the
Doctor
himself
,
as
appears
by
the
said
Articles
,
and
that
they
married
with
the
Doctors
good
liking
privity
and
consent
,
according
to
the
said
Condition
,
and
insist
,
That
Dame
Mary's
second
Marriage
with
Hutchinson
was
not
without
the
consent
,
privity
and
good
liking
of
the
said
Doctor
;
and
insist
also
,
that
the
said
proviso
by
Dame
Marys
first
Marriage
was
fully
performed
,
and
the
Estates
in
and
by
the
said
Settlement
granted
,
absolutely
vested
according
to
the
Limitation
declared
and
contained
,
so
as
the
said
second
Marriage
of
Dame
Mary
with
the
said
Hutchinson
,
if
it
had
been
without
such
consent
could
not
have
divested
the
same
,
and
therein
crave
the
Judgment
of
this
Court
.
The
Court
declared
,
That
the
first
Marriage
of
Dame
Mary
being
by
her
Fathers
consent
,
her
second
Marriage
though
it
had
been
without
his
consent
,
could
be
no
breach
of
the
Proviso
or
Conditon
in
the
first
Settlement
,
and
decreed
the
Defendants
,
the
Executors
of
Doctor
Smalwood
to
account
for
all
the
personal
Estate
of
the
said
Doctor
,
Monies
decreed
to
be
laid
out
in
Land
,
according
to
Marriage
Agreement
.
and
the
Rents
and
profits
of
the
real
Estate
,
and
if
personal
Estate
sufficient
after
debts
to
pay
the
1500
l.
then
they
are
to
pay
the
same
to
the
Trustees
,
which
they
are
to
lay
out
in
a
purchase
of
Lands
,
according
to
the
Deed
of
the
18
Aug.
1683.
Com'
Winchelsey
&
al'
contra
Dom'
Norcloffe
&
al'
1
Jac.
2.
fo.
1026.
THat
Katherine
,
Act
of
Parliament
for
the
Settlement
of
Intestates
Estates
.
late
Countess
of
Winchelsey
the
Plaintiff
the
Earls
late
Wife
,
had
three
Husbands
Successively
,
(
viz.
)
Lister
her
first
Husband
,
by
whom
she
had
Issue
,
the
Defendant
Christopher
Lister
,
Sir
John
Wentworth
her
second
Husband
,
by
whom
she
had
Issue
Thomas
Wentworth
,
since
deceased
,
and
the
Defendant
John
Wentworth
,
and
the
Plaintiff
the
Earl
her
third
Husband
,
by
whom
she
had
Issue
the
said
Lady
Catherine
,
and
the
Plaintiff
the
Lady
Elizabeth
:
That
the
said
Wentworth
had
a
Real
Estate
by
discent
from
his
Father
,
out
of
which
,
after
his
Fathers
death
,
there
was
payable
to
,
or
to
the
use
of
the
said
Thomas
,
several
Sums
of
money
,
for
Rents
,
Fines
and
Profits
.
That
in
1684.
the
said
Thomas
died
Intestate
,
leaving
no
Wife
or
Child
,
but
leaving
the
Defendant
Christopher
Lister
,
John
Wentworth
,
the
Lady
Katherine
,
and
the
Plaintiff
the
Lady
Elizabeth
,
his
Brothers
and
Sisters
,
who
being
the
next
of
Kin
,
in
equal
degree
(
his
Mother
the
said
Countess
dying
in
his
lifetime
)
they
by
Virtue
of
the
late
Act
of
Parliament
,
for
selling
Intestate
Estates
,
became
Intituled
to
the
surplus
of
the
said
Thomas
,
his
Personal
Estate
to
be
equally
distributed
,
and
divided
amongst
them
,
(
viz.
)
to
each
of
them
a
fourth
part
thereof
;
that
before
any
Distribution
made
,
the
Lady
Katherine
died
Intestate
,
and
Administration
of
her
Estate
was
granted
to
the
Plaintiff
the
Earl
her
Father
,
who
by
Virtue
thereof
,
and
of
the
said
Act
of
Parliament
,
ought
to
have
the
said
Lady
Katherines
fourth
part
of
the
said
Personal
Estate
of
the
said
Thomas
Wentworth
her
Brother
,
and
the
Plaintiff
the
Lady
Elizabeth
,
ought
to
have
another
fourth
part
;
but
the
Defendants
pretend
that
part
of
the
said
Thomas
his
Personal
Estate
,
was
in
his
Life-time
Invested
in
the
purchase
of
Lands
,
which
were
Conveyed
to
him
and
his
Heirs
,
and
ought
to
Discend
to
the
said
John
Wentworth
,
as
his
Brother
and
Heir
,
and
the
said
money
ought
to
be
accounted
as
part
of
his
Personal
Estate
,
whereas
if
any
such
Purchase
were
made
,
the
same
were
without
his
Consent
,
and
during
his
Minority
,
when
he
had
no
power
to
direct
the
laying
out
thereof
,
and
the
Lands
in
Equity
,
ought
to
be
accounted
part
of
his
personal
Estate
,
of
which
the
Plaintiff
seeks
to
have
their
shares
.
The
Defendants
insist
,
That
the
Defendant
John
Wentworth
only
was
of
the
whole
Blood
,
the
rest
being
but
of
the
half
blood
to
him
only
,
and
leaving
the
Defendant
Dame
Dorothy
his
Grandmother
,
by
the
Mothers
side
(
viz.
)
Mother
of
the
said
Countess
,
who
conceives
her self
to
be
Intituled
as
Grandmother
to
an
equal
share
with
any
of
his
Brothers
and
Sisters
;
and
insists
,
That
the
said
Lady
Katherine
dying
within
less
than
a
year
after
the
Intestate
Thomas
Wentworth
,
she
was
not
by
the
said
Statute
,
Intituled
to
any
share
of
the
said
Personal
Estate
,
her
supposed
Right
being
meerly
a
thing
in
possibility
and
Expectation
,
which
vanished
by
her
death
within
the
year
:
And
the
Defendants
insist
,
That
the
Countess
before
her
Marriage
with
the
Plaintiff
the
Earl
(
viz.
)
in
1673.
granted
Lands
to
Trustees
for
21
years
,
if
she
so
long
lived
in
Trust
out
of
those
Lands
,
and
other
Lands
late
of
Sir
John
Wentworth
,
to
pay
her
200
l.
per
Annum
,
till
the
said
Thomas
was
12
years
of
Age
,
for
his
Maintenance
,
and
after
till
21
,
so
much
as
the
said
Trustees
thought
fit
,
and
the
Residue
for
the
benefit
of
the
said
Thomas
,
his
Heirs
and
Assigns
:
That
the
said
Defendants
with
the
Countesses
Approbation
out
of
the
moneys
arising
by
the
said
Trust
,
made
several
Purchases
in
their
own
Names
,
and
declared
the
Trust
thereof
for
the
said
Thomas
Wentworth
and
his
Heirs
;
and
the
Defendant
Dame
Dorothy
made
other
Purchases
in
her
own
Name
,
with
the
said
Thomas
his
momey
,
which
she
received
in
Trust
for
him
,
and
insists
,
that
those
moneys
so
invested
in
those
Purchases
in
the
life-time
of
the
said
Thomas
in
Trust
,
are
not
,
nor
at
his
death
were
any
part
of
his
Personal
Estate
,
but
the
Lands
descend
to
the
Defendant
John
Wentworth
,
as
his
Heir
.
That
Sir
John
Wentworth
died
in
1671.
and
left
a
great
Personal
Estate
,
which
came
to
the
Earl
and
Countess
on
their
Marriage
,
and
that
Sir
John
Wentworth
died
Intestate
within
the
Province
of
York
,
the
Defendant
John
Wentworth
being
his
younger
Son
unpreferred
,
became
Intituled
to
a
third
part
of
his
Estate
,
equally
with
his
Widow
,
by
the
Custom
of
that
Province
,
and
by
force
of
the
said
Act
,
for
setling
Intestate
Estates
,
Thomas
and
John
became
Intituled
with
her
to
the
other
third
part
.
The
Defendants
farther
insist
,
That
the
said
Earl
is
not
,
nor
can
be
Intituled
to
any
share
of
the
said
Thomas
Wentworths
Personal
Estate
;
for
that
the
Act
of
Parliament
is
only
Authoritative
and
directive
to
the
Ordinary
and
Administrator
,
and
there
are
no
vesting
words
therein
,
whereby
to
Intitle
the
Lady
Katherine
to
a
share
of
the
Estate
,
and
that
she
dying
before
any
distribution
,
and
within
the
12
Months
,
allowed
to
that
purpose
,
her
share
fell
among
her
Surviving
Brothers
and
Sisters
,
and
however
,
if
she
was
Intituled
to
any
part
,
it
could
only
be
to
a
half-share
,
she
being
but
of
the
half-blood
to
the
deceased
,
and
that
so
in
the
Course
of
the
Civil
Law
.
But
the
Plaintiffs
insisted
,
The
said
Act
explained
.
That
though
the
Act
of
Parliament
be
only
Authoritative
and
directive
to
the
Judge
,
and
yet
such
Authority
and
direction
in
an
Act
of
Parliament
,
doth
by
Judgment
and
Implication
of
Law
,
vest
an
Interest
in
the
Wife
,
Children
and
Kindred
,
for
whose
benefit
the
Act
was
made
,
as
much
as
if
it
had
been
a
bequest
of
residuum
bonorum
,
for
that
the
Act
appoints
all
Ordinaries
whatsoever
,
on
granting
any
Administration
to
take
the
Bond
prescribed
thereby
,
one
Clause
of
the
Condition
whereof
is
,
to
pay
the
surplus
that
shall
be
found
due
on
such
Administration
,
account
to
such
Person
or
Persons
,
as
the
Judge
by
his
Decree
or
Sentence
to
that
Act
shall
limit
and
appoint
,
and
then
appoints
the
Ordinaries
and
Judges
repectively
,
to
order
and
make
just
and
equal
distribution
of
such
surplus
amongst
the
Wife
,
Children
or
next
of
Kin
,
according
to
the
Rules
and
Limitations
therein
,
and
the
same
to
Decree
and
settle
,
(
which
is
the
very
Title
of
that
Act
)
and
that
tho'
there
be
Twelve
months
time
given
for
distribution
,
yet
that
is
only
with
respect
to
Creditors
,
and
no
way
hinders
the
vesting
the
surplus
in
such
persons
,
as
are
appointed
to
have
it
immediately
upon
the
Trustees
death
,
any
more
then
a
Legacy
to
be
paid
in
futuro
,
and
that
it
is
generally
a
much
longer
time
before
an
Intestates
Estate
can
be
got
in
,
and
the
surplus
known
,
and
if
the
Executors
or
Administrators
of
persons
dying
,
in
the
mean
time
shall
lose
their
shares
,
it
will
elude
the
intent
of
the
Act
of
Parliament
,
which
was
made
for
the
benefit
of
the
Wife
and
Children
,
and
Kindred
generally
:
And
it
will
lye
much
in
the
power
of
an
Administrator
,
by
retarding
his
Account
,
to
prevent
another
of
his
share
;
nay
it
will
be
mischevous
to
the
Administrator
,
and
those
who
shall
claim
distribution
,
for
that
if
no
Interest
be
vested
in
any
before
an
actual
distribution
,
by
Decree
or
Sentence
,
then
no
distribution
can
be
by
Agreement
or
Consent
of
the
Parties
;
nor
let
the
occasions
or
necessities
of
any
claiming
distribution
be
never
so
great
,
can
any
Administrator
satisfie
the
payment
of
any
part
of
the
Estate
,
till
such
Sentence
or
Decree
made
,
which
the
Law
makes
could
never
intend
?
and
if
no
Interest
be
vested
by
that
Act
,
then
hath
this
Court
no
Jurisdiction
to
intermedle
therewith
;
for
that
the
Act
only
directs
the
Ecclesiastical
Judge
,
Distributions
according
to
the
Act
for
setling
Intestates
Estates
,
are
made
in
Chancery
,
as
well
as
in
the
Ecclesiastical
Courts
.
to
make
a
Decree
or
Sentence
for
distribution
,
but
the
same
vesting
an
Interest
,
and
there
being
no
Negative
Words
,
that
a
distribution
shall
be
sued
for
there
and
elsewhere
,
several
distributions
have
been
made
in
this
Court
,
as
well
in
the
Lord
Chancellor
Finch
his
time
,
and
the
Lord
Keeper
North's
time
as
since
,
and
that
the
same
is
looked
upon
as
a
Point
setled
,
and
that
it
is
the
constant
course
of
the
Ecclesiastical
Courts
,
to
Decree
the
shares
of
any
persons
dying
,
before
distribution
to
the
Executors
or
Administrators
of
such
persons
so
dying
,
and
not
to
the
Surviving
person
claiming
distribution
;
and
this
Act
was
intended
as
the
Will
of
every
Intestate
,
and
the
Wife
,
Children
and
Kindred
respectively
,
to
be
as
well
intitutled
,
as
if
the
Intestate
had
made
a
Will
,
and
so
Bequeathed
the
same
amongst
them
,
and
for
the
half
Blood
and
whole
Blood
,
the
same
hath
made
no
distribution
between
them
,
but
appointed
the
distribution
to
be
equal
,
and
that
for
the
Monies
alleadged
to
be
invested
in
Lands
,
such
Purchases
do
not
alter
the
nature
of
the
Case
,
for
that
Thomas
being
a
Minor
,
could
not
give
Authority
or
Consent
for
it
;
and
he
might
have
discended
to
it
when
at
Age
,
and
dying
in
Minority
the
same
still
remains
,
part
of
his
personal
Estate
,
and
the
Land
is
but
in
the
nature
of
a
Mortgage
,
or
additional
Security
for
it
.
This
Court
declared
,
they
saw
no
cause
or
colour
to
Decree
any
share
for
the
Desendant
Dame
Dorothy
,
and
conceives
her
no
way
intituled
to
any
,
but
as
to
the
Plaintiff
the
Lord
Winchelsey
.
This
Court
declared
they
were
fully
satisfied
,
that
the
said
Act
of
Parliament
doth
immediately
upon
the
death
of
an
Intestate
,
If
any
of
the
next
Kindid
before
distribution
,
that
share
shall
go
to
her
,
or
his
Executors
or
Administrators
,
and
not
to
the
Survivor
,
next
of
Kindred
to
the
first
Intestate
.
and
before
any
actual
distribution
made
;
vest
an
Interest
in
the
respective
persons
appointed
to
have
distribution
of
the
surplus
of
his
Estate
,
as
much
as
if
it
had
been
Bequeathed
by
Will
,
and
that
if
any
one
of
them
dye
before
distribution
,
tho'
within
the
year
,
yet
the
part
or
share
of
such
person
so
dying
,
ought
to
go
over
to
the
Executors
or
Administrators
of
such
party
so
dying
,
and
not
to
the
Survivor
,
or
next
of
Kindred
to
the
first
Intestate
,
and
that
the
Lady
Katherine
was
at
her
death
well
intituled
,
to
a
share
of
her
Brother
Thomas
Wentworths
Estate
,
as
an
Interest
thereby
vested
in
her
,
notwithstanding
she
died
within
a
year
after
the
Intestate
,
and
before
any
distribution
made
,
and
that
the
Lord
Winchelsey
as
her
Administrator
is
now
well
intituled
therto
,
and
decreed
a
distribution
,
and
the
Plaintiff
the
Lord
Winchelsey
shall
have
the
Lady
Katherines
share
,
and
proportion
of
the
said
Thomas
Wentworths
Estate
accordingly
,
and
the
Plaintiff
the
Lady
Elizabeth
,
shall
have
a
like
share
thereof
with
the
Defendant
Lister
,
and
John
Wentworth
.
2
Jac.
2.
so.
315.
The
question
being
,
Whether
the
respective
shares
of
the
Plaintiff
and
Defendant
Lister
,
(
the
said
Lady
Katherine
and
Elizabeth
,
and
the
Defendant
Lister
being
only
of
the
half
Blood
to
the
Intestate
;
)
and
whether
the
Mony
be
vested
in
Lands
,
or
the
Lands
themselves
should
be
accounted
part
of
the
personal
Estate
of
the
said
Thomas
Wentworth
or
not
?
His
Lordship
ordered
a
Case
to
be
made
as
to
those
two
points
.
The
Case
being
,
(
viz
)
That
the
said
Thomas
Wentworth
died
an
Infant
and
unmarried
,
leaving
such
Brother
of
the
whole
Blood
,
and
such
Brother
and
Sisters
of
the
half
Blood
as
aforesaid
,
who
were
his
next
of
Kindred
in
equal
degree
,
and
that
upon
his
death
a
real
Estate
of
near
2500
l.
per
Annum
,
discended
to
the
Defendant
John
Wentworth
,
his
Brother
and
Heir
,
and
that
above
3000
l.
of
the
profits
of
that
Estate
,
received
in
the
Intestates
life
time
by
Dame
Dorothy
Norcliff
,
and
the
said
Trustees
which
belonged
to
him
and
his
proper
Monies
,
were
by
them
during
his
Non
age
,
and
without
any
direction
or
power
in
their
Trust
,
but
of
their
own
Heads
laid
out
in
Purchases
in
Fee
,
and
Conveyances
in
their
Names
,
but
in
Trust
for
the
said
Intestates
and
his
Heirs
,
with
this
express
Clause
in
the
said
Conveyances
,
(
viz.
)
in
case-he
at
his
full
Age
would
accept
the
same
at
the
Rate
purchased
,
the
purchase
being
made
with
his
Mony
,
and
for
his
advantage
.
This
Court
as
to
the
said
two
Points
,
Half
Blood
to
have
an
equal
share
with
the
whole
Blood
.
being
assisted
with
Judges
,
declared
,
That
the
Plaintiff
and
the
Defendant
Lister
,
ought
each
of
them
,
to
have
an
equal
share
with
the
Defendant
John
Wentworth
,
of
the
surplus
of
the
personal
Estate
of
the
said
Intestate
,
and
the
distribution
thereof
ought
to
be
made
among
them
share
and
share
alike
,
and
decreed
accordingly
.
And
as
to
the
other
Point
declared
,
Trustees
lay
out
the
Monies
of
an
Infant
in
Lands
in
Fee
.
This
shall
be
accounted
part
of
his
personal
Estate
,
he
dying
a
Minor
.
That
the
Monies
laid
out
in
the
said
Purchases
ought
to
be
taken
and
accounted
for
as
part
of
the
said
personal
Estate
,
and
distributed
with
the
rest
,
and
decreed
a
Sale
of
the
said
purchased
premisses
,
and
distribution
thereof
to
be
made
as
aforesaid
.
Dom'
Middleton
contra
Middleton
,
1
Jac.
2.
fo.
793.
THat
Sir
Thomas
Middleton
upon
his
Marriage
with
the
Plaintiff
Dame
Charlotta
Middleton
,
Devise
.
setled
a
great
part
of
his
Estate
in
Com'
Flint
,
and
other
Countries
for
her
Joynture
,
being
seised
in
Fee
of
Lands
in
several
Countries
(
viz.
)
Flint
,
Denbigh
,
and
Merioneth
,
and
setled
all
his
Estate
on
his
first
and
other
Sons
on
her
Body
in
Tail
Male
,
and
charged
the
same
with
several
Terms
of
years
,
for
raising
Portions
for
Daughters
(
viz.
)
If
one
Daughter
and
no
Issue
male
,
8000
l.
and
out
of
his
personal
Estate
,
intending
to
make
an
addition
to
the
Portion
of
the
Plaintiff
Charlotta
his
only
Child
,
and
to
increase
the
Plaintiff
Dame
Charlotta's
Fortune
and
Joynture
,
made
his
Will
in
1678.
and
thereby
reciting
that
whereas
upon
his
Marriage-Settlement
it
was
provided
,
That
if
he
should
have
a
Daughter
she
was
to
have
6000
l.
Portion
,
as
his
Will
was
,
and
he
gave
to
his
only
Daughter
Charlotta
,
in
case
she
should
have
no
Son
living
at
his
death
,
10000
l.
more
as
an
addition
to
her
Portion
,
to
make
her
up
the
same
16000
l.
and
for
raising
of
the
said
portions
,
and
payment
of
his
debts
and
Legacies
,
he
devised
all
his
said
Lands
(
except
his
Lands
limited
for
his
Wives
Joynture
for
her
life
)
unto
Trustees
and
their
Heirs
in
Trust
,
to
raise
out
of
the
Rents
and
profits
of
the
said
premisses
,
the
several
Sums
mentioned
for
his
Daughters
portion
,
and
the
sums
of
Mony
thereafter
mentioned
,
and
Willed
,
That
till
one
half
of
the
said
Daughters
portion
should
be
raised
,
his
Daughter
Charlotta
to
have
100
l.
per
Annum
for
the
first
four
years
,
and
afterwards
200
l.
per
Annum
till
her
moiety
of
her
portion
should
be
raised
;
and
after
payment
of
the
said
portions
,
maintenance
,
debts
and
legacies
he
devised
the
said
Trustees
to
stand
seised
of
all
the
said
premisses
(
except
before
excepted
)
to
the
use
of
the
Heirs
males
of
his
Body
,
with
a
Remainder
to
the
Defendant
Sir
Richard
Middleton
his
Brother
for
life
,
without
impeachment
of
Waste
,
Remainder
to
his
first
Son
and
Heirs
males
of
his
Body
,
with
other
Remainder
to
the
Defendants
Thomas
,
Richard
and
Charles
Middleton
,
Remainder
to
the
right
Heirs
of
the
said
Thomas
,
and
he
bequeathed
to
his
said
Daughter
Charlotta
the
Plaintiff
his
Diamond-pendants
,
which
his
Wife
wore
,
and
bequeathed
to
his
Wife
Dame
Charlotta
,
after
his
death
,
one
Annuity
of
200
l.
per
Annum
for
her
life
,
to
be
raised
out
of
the
profits
of
the
said
premisses
,
and
bequeathed
the
great
Silver
Candlesticks
to
go
according
to
his
Grandmothers
Will
,
to
the
Heirs
of
his
Family
,
with
his
Estate
as
an
Heir
Loom
,
and
bequeathed
the
use
of
all
his
Goods
,
Stock
and
Housholdstuff
to
his
Wife
the
Plaintiff
Dame
Charlotta
,
for
so
long
as
she
should
live
at
Chirke
Castle
,
and
from
thence
he
left
the
same
to
his
eldest
Son
and
Heirs
,
or
such
as
should
be
Heir
male
of
his
Family
,
according
to
the
limitations
aforesaid
;
and
his
further
Will
was
,
that
his
said
Wife
should
have
such
proportion
of
the
Goods
,
Housholdstuff
and
Stock
,
for
the
stocking
and
furnishing
of
Cardigan-House
and
Demean
,
being
part
of
her
Joynture
,
as
should
be
judged
fit
by
her
Trustees
,
that
she
might
be
supplied
with
Goods
and
Stock
requisite
for
her
House
;
and
left
to
whomsoever
should
be
his
Heir
all
his
Stable
of
Horses
,
and
made
the
Plaintiff
Dame
Charlotta
Executrix
,
and
died
in
1683.
leaving
the
Plaintiff
Charlotta
his
Daughter
and
Heir
.
The
Defendant
Sir
Richard
Middleton
insisted
,
That
Sir
Thomas
Middleton
his
Brother
had
,
in
Consideration
of
184
l.
to
him
paid
in
1680.
conveyed
to
the
said
Defendant
and
his
Heirs
two
Messuages
,
being
11
l.
10
s.
per
Annum
in
Com'
Denbigh
,
and
taking
notice
that
the
same
was
comprized
in
his
Wives
Joynture
,
declared
he
would
leave
or
give
his
Wife
by
Will
,
or
otherwise
,
a
sufficient
compensation
for
the
same
,
so
that
he
should
not
be
Troubled
.
And
the
Defendant
insists
.
That
the
200
l.
per
Annum
given
her
by
the
Will
,
was
intended
to
be
as
a
Compensation
;
and
insists
,
That
Sir
Thomas
intended
his
Daughter
more
than
16000
l.
and
that
such
part
of
the
personal
Estate
as
was
not
specifically
devised
to
his
Executrix
,
which
was
all
he
intended
her
,
ought
to
be
applied
towards
satisfaction
of
the
Testators
debts
and
legacies
,
and
the
Plaintiffs
Portion
,
and
the
rather
,
for
that
by
the
true
Construction
of
the
Will
the
real
Estate
is
subjected
only
supplementarily
,
Real
Estate
subjected
to
pay
Debts
only
supplementarily
.
and
that
part
of
the
personal
Estate
intended
to
the
Executrix
is
specifically
devised
to
her
,
the
Devise
of
the
Goods
and
Stock
were
only
intended
,
in
case
the
Plaintiff
Dame
Charlotta
should
live
on
her
Joynture
;
but
she
not
residing
on
her
Joynture
,
he
insists
,
she
is
not
Intituled
to
the
said
Stock
and
Goods
,
and
as
to
all
other
the
Goods
and
Stock
,
and
Furniture
,
the
Defendant
was
well
Intituled
by
the
Will
,
as
Heir
male
of
the
Family
,
according
to
the
limitation
of
the
Will
.
The
Plaintiff
insists
,
That
the
personal
Estate
not
being
devised
for
payment
of
of
debts
,
and
provision
being
made
for
payment
thereof
out
of
the
real
Estate
,
doth
submit
to
the
Court
,
Whether
the
personal
Estate
ought
to
be
applied
for
debts
and
legacies
,
the
real
Estate
being
sufficient
to
do
the
same
;
and
whether
,
if
she
be
compelled
to
pay
the
debrs
and
legacies
therewith
,
she
shall
not
be
reimbursed
out
of
the
real
Estate
.
The
Questions
arising
upon
the
said
Will
,
and
now
debated
,
are
(
viz.
First
,
Whether
the
personal
Estate
,
not
specifically
devised
,
ought
to
come
in
Aid
of
the
real
Estate
,
and
be
subject
to
the
debts
and
legacies
chargeable
thereon
?
Secondly
,
Whether
the
Plaintiff
Charlotta
ought
to
have
any
greater
Portion
by
the
Settlement
and
Will
than
16000
l.
and
whether
she
ought
to
have
the
several
yearly
Maintenances
given
by
the
said
Deed
and
Will
,
and
to
what
time
and
times
,
and
whether
the
Stable
of
Horses
did
not
belong
unto
her
,
as
being
given
to
whomsoever
shall
be
the
Testator's
Heir
,
she
being
the
Testator's
Heir
?
Thirdly
,
Whether
the
Plaintiff
,
the
Lady
Charlotta
Middleton
ought
not
,
besides
her
Joynture
,
to
have
her
Annuity
of
200
l.
per
Annum
,
and
to
have
Furniture
and
Stock
for
her
Joynture
,
House
and
Lands
,
and
to
have
the
Jewels
and
Chamber
plate
,
and
Furniture
of
her
Chamber
as
her
Paraphanalia
.
This
Court
declared
,
it
was
intended
the
Daughter
should
have
only
16000
l.
Portion
,
and
that
such
of
the
Goods
and
Stock
,
and
Houshold-stuff
at
Chirke
Castle
,
which
were
devised
to
the
Defendant
,
Sir
Richard
Middleton
,
did
belong
,
and
ought
to
be
enjoyed
by
the
said
Sir
Richard
,
Personal
Estate
not
specifically
devised
to
be
applied
to
payment
of
debts
,
and
the
Real
Estate
not
subjected
thereto
.
and
that
the
personal
Estate
not
specifically
devised
away
,
and
which
is
not
to
be
set
out
to
the
Plaintiff
,
the
Lady
Middleton
,
pursuant
to
the
said
Will
,
ought
to
be
applied
,
and
paid
towards
payment
of
the
Debts
and
Legacies
,
and
the
Portion
of
the
Daughter
;
and
that
the
Plaintiff
the
Lady
Middleton
(
besides
her
Joynture
,
which
she
ought
to
enjoy
free
from
Incumbrances
)
ought
to
have
and
enjoy
the
said
Annuity
of
200
l.
per
Annum
,
Annuity
in
Augmentation
of
a
Joynture
.
and
Arrears
given
and
devised
to
her
by
the
said
Testator
,
and
that
she
ought
to
have
her
Paraphanalia
,
and
proportion
of
the
Goods
,
Houshold
stuff
and
Stock
,
for
furnishing
and
stocking
her
Joynture-house
,
and
Demeasns
to
be
set
out
by
the
Trustees
,
according
to
the
Will
;
and
the
Daughter
to
have
both
the
Maintenances
by
Will
and
Deed
of
Settlement
,
and
the
Stable
of
Horses
,
and
all
things
specifically
devised
to
her
by
the
Will
,
and
decreed
accordingly
.
Whitmore
contra
Weld
,
1
Jac.
2.
fo.
106.
THat
William
Whitmore
deceased
in
1675.
by
his
Will
,
devised
to
the
Earl
of
Craven
,
for
the
use
of
William
Whitmore
his
Son
,
the
Plaintiff
Frances
Whitmores
late
Husband
,
all
the
surplusage
of
his
personal
Estate
,
and
made
his
Son
William
Whitmore
Executor
,
and
the
said
Earl
of
Craven
his
Executor
,
during
the
Minority
of
his
said
Son
,
and
the
said
William
the
Father
died
,
and
left
a
personal
Estate
of
40000
l.
that
William
the
Son
at
his
Fathers
death
,
being
but
of
the
Age
of
13
years
,
the
said
Earl
proved
his
Fathers
Will
,
and
possessed
all
the
personal
Estate
,
and
the
said
William
the
Son
,
having
attained
the
Age
of
18
years
,
not
having
proved
the
said
Will
,
and
being
Intituled
to
the
surplus
of
the
said
perfonal
Estate
in
1684.
made
his
Will
,
and
thereby
devised
to
the
Plaintiff
Frances
,
all
his
personal
Estate
,
and
whatsoever
lay
in
his
power
to
give
,
and
made
her
his
Executrix
,
and
died
in
1684.
and
the
Plaintiff
Frances
being
of
the
Age
of
18
years
,
proved
his
Will
,
and
is
thereby
Intituled
to
the
personal
Estate
of
William
the
Father
.
But
the
Defendants
,
one
of
them
being
Sister
of
William
the
Father
,
and
the
other
the
Children
and
Grandchildren
of
the
Sisters
of
the
said
William
Whitmore
the
Father
,
pretend
the
surplus
of
the
personal
Estate
of
William
the
Father
,
belongs
to
them
.
The
said
William
Whitmore
the
Fathers
Will
is
in
these
words
,
(
viz.
)
The
Surplus
of
my
Personal
Estate
,
my
Debts
,
Legacies
and
Funeral
paid
and
satisfied
,
I
give
to
the
Right
Honourable
William
Earl
of
Craven
,
for
the
use
of
my
only
Son
William
Whitmore
,
and
his
Heirs
lawfully
discended
from
his
Body
,
and
for
the
use
of
the
Issue
Male
,
and
Issue
Female
,
discended
from
the
Bodies
of
my
Sisters
,
Elizabeth
Weld
deceased
,
Margaret
Kemesh
,
and
Ann
Robinson
,
in
Case
that
my
only
Son
William
Whitmore
should
decease
in
his
Minority
,
without
having
Issue
lawfully
discended
from
his
Body
:
I
Nominate
and
appoint
my
only
Son
William
Whitmore
,
Executor
of
my
last
Will
and
Testament
.
I
nominate
and
appoint
the
Earl
of
Craven
during
the
Minority
of
my
only
Son
William
Whitmore
,
Executor
of
my
last
Will
and
Testament
.
The
Defendant
Dame
Ann
Robinson
insists
,
she
is
the
Surviving
Sister
of
William
Whitmore
the
elder
,
and
so
is
Intituled
to
the
Administration
of
William
the
Elder
,
unadministred
by
William
the
younger
,
and
the
Defendant
Sir
John
Robinson
,
and
others
the
younger
Children
of
the
said
Dame
Ann
Robinson
insist
,
That
they
are
instituted
(
by
William
the
Fathers
Will
)
to
an
equal
share
of
the
surplus
of
the
personal
Estate
of
William
the
Elder
,
the
rather
,
for
that
William
the
Elder
,
made
a
Settlement
of
his
Real
Estate
on
Trustees
,
and
thereby
made
a
provision
for
the
Maintenance
of
William
the
younger
,
during
his
Minority
,
and
therefore
they
opposed
the
Plaintiff
Frances
,
getting
Administration
of
William
the
Elder
.
The
said
Plaintiff
Frances
Whitmore
insisted
,
That
by
the
Will
of
William
the
Elder
,
there
was
no
joynt
devise
made
to
the
said
William
the
Son
,
and
the
Issue
Male
and
Female
of
the
Sisters
of
William
the
Father
;
but
a
several
devise
to
William
the
Son
,
with
Remainder
to
the
Sisters
Issue
,
and
that
the
said
William
the
Son
having
an
Interest
vested
in
him
by
the
Will
of
his
Father
,
and
being
18
years
Old
when
he
died
,
and
he
having
then
a
power
to
have
proved
his
Fathers
Will
,
the
Earls
Executorship
during
his
Minority
being
determined
,
might
have
spent
or
given
away
the
said
Estate
in
his
life-time
,
he
might
surely
give
away
the
same
by
his
Will
,
which
he
having
done
to
the
Plaintiff
Frances
,
she
is
thereby
well
Intituled
to
the
same
,
and
that
the
remainder
over
to
Issue
Male
and
Female
of
the
Sisters
,
the
Estate
being
purely
personal
,
is
absolutely
void
.
This
Court
hearing
several
Presidents
quoted
,
Devisee
Infant
lived
to
18
years
,
and
makes
his
Will
and
Executors
and
dies
,
the
Executor
shall
have
the
Legacy
,
for
that
an
Interest
was
vested
in
the
Infant
.
declared
,
That
by
the
Will
of
the
Father
,
there
was
an
Interest
vested
in
William
the
Son
,
and
the
remainder
over
to
the
Issue
Male
and
Female
of
the
Sisters
of
William
the
Elder
,
was
void
;
and
that
William
the
Son
living
to
18
years
,
and
making
his
Will
as
aforesaid
,
and
the
Plaintiff
Frances
his
Executrix
,
she
is
thereby
well
intituled
to
the
surplus
of
the
said
personal
Estate
,
and
decreed
the
same
accordingly
.
Whitlock
contra
Marriot
,
1
Jac.
2.
fo.
700.
THis
Case
being
upon
a
Scandalous
Answer
,
Defendant
ordered
to
pay
the
Plaintiff
100
I
for
putting
in
a
Scandalous
Answer
.
His
Lordship
declared
the
said
Answer
to
be
very
Scandalous
and
Impertinent
,
and
that
the
expressions
taken
by
the
Defendant
to
the
Masters
Report
,
were
not
only
more
scandalous
,
but
also
Malicious
;
and
that
it
appearing
that
Ryley
the
Defendants
Solicitor
,
had
put
Mr.
Lynn
a
Councellors
Hand
to
the
Exceptions
,
without
his
Knowledge
.
This
Court
Ordered
the
said
Ryley
to
be
taken
into
Custody
of
the
Messenger
,
and
declared
,
the
Answer
and
Exceptions
were
not
pertinent
to
the
Cause
,
but
meerly
to
defame
the
Plaintiff
,
His
Lordship
Ordered
the
Defendant
Marriot
to
pay
to
the
Plaintiff
100
l.
for
his
Reparation
and
Costs
,
for
the
abuse
and
scandal
aforesaid
,
and
the
said
Ryley
to
pay
20
l.
and
to
stand
committed
to
the
Prison
of
the
Fleet
,
till
payment
thereof
be
made
.
Ash
contra
Rogle
,
and
the
Dean
and
Chapter
of
St.
Pauls
,
1
Jac.
2.
fo.
154.
THis
Case
is
upon
a
Demurrer
,
Bill
to
enforce
the
Lord
of
a
Mannour
to
receive
a
Petition
in
nature
of
a
Writ
of
false
Judgment
to
Reverse
a
common
Recovery
,
demurred
to
,
and
the
demurrer
allowed
.
the
Plaintiffs
Bill
is
to
inforce
the
Defendant
the
Lord
of
the
Mannour
of
Barnes
in
Surrey
,
to
receive
the
Plaintiffs
Petition
or
Bill
,
in
the
Nature
of
a
Writ
of
false
Judgment
to
Reverse
a
Common
Recovery
,
suffered
of
some
Copyhold
Lands
in
the
Mannour
by
Susan
R●gle
Widow
,
which
the
Defendant
R●gle
holds
under
the
said
Recovery
,
the
Bill
setting
forth
,
that
Katherine
Ferrers
by
the
Will
of
her
Husband
,
or
by
some
other
good
Conveyance
,
was
seized
in
Fee
of
Free
and
Copyhold
Lands
in
Barnes
,
formerly
her
said
Husbands
in
Trust
,
to
Convey
200
l.
a
year
thereof
upon
William
Ferrers
,
her
Eldest
Son
,
and
the
said
Susan
his
then
Wife
,
and
Heirs
Males
of
the
Body
of
William
,
Remainder
in
Tail
to
Thomas
Ferrers
the
Plaintiffs
Father
,
second
Son
of
Katherine
,
and
the
Heirs
of
his
Body
;
Edward
being
obliged
by
Articles
,
upon
Susans
Marriage
with
his
Son
William
,
to
settle
Lands
of
that
value
on
Susan
,
for
her
Joynture
:
That
Katherine
on
that
Trust
in
1642.
surrendred
the
premisses
to
the
value
of
100
l.
per
Annum
,
to
the
use
of
the
said
William
and
Susan
,
and
the
Heirs
of
their
two
Bodies
begotten
,
remainder
to
the
Right
Heirs
of
William
,
which
was
a
Breach
of
the
Trust
in
Katherine
,
in
limiting
an
Estate
Tail
to
Susan
,
when
it
should
have
been
but
an
Estate
for
life
:
That
William
died
before
the
Admittance
,
leaving
Issue
only
his
Son
William
,
and
in
1652.
Susan
surrendred
to
one
Mitchell
,
against
whom
the
Common
Recovery
in
question
was
then
obtained
,
wherein
one
Walter
was
Demandant
,
the
said
Mitchell
Tenant
,
and
Susan
Vouchee
,
to
the
use
of
her self
,
the
said
Susan
for
life
,
the
Remainder
to
William
Ferrers
,
and
the
Heirs
of
his
Body
,
the
Remainder
to
the
Right
Heirs
of
the
Survivor
of
them
,
the
said
Susan
and
William
her
Son
:
That
William
the
Son
died
soon
after
,
and
Susan
died
in
1684.
and
the
Plaintiffs
Father
Thomas
,
being
dead
without
Issue
Male
,
in
case
the
Common
Recovery
had
not
been
suffered
,
the
premisses
would
have
come
to
the
Plaintiff
,
being
the
youngest
Daughter
to
her
Father
,
as
Couzen
and
Heir
both
of
William
Ferrers
the
Father
,
and
William
the
Son
,
the
premisses
being
Burrough-English
,
and
so
the
Plaintiff
was
well
Intituled
to
prosecute
the
Lord
of
the
Mannour
in
the
Nature
of
a
Writ
of
False
Judgment
,
to
Reverse
the
said
Recovery
,
wherein
there
are
manifest
Errors
and
Defaults
;
but
the
said
Lord
refuses
to
receive
the
said
Petition
,
and
combine
with
the
Defendant
Rogle
,
who
is
Son
and
Heir
of
the
said
Susan
,
by
a
second
Husband
,
who
pretends
,
that
his
Mother
Susan
surviving
her
Son
William
Ferrers
,
the
premisses
are
discended
to
him
by
virtue
of
the
use
of
the
said
Recovery
,
limited
to
the
Right
Heirs
of
the
Survivor
,
of
Susan
and
her
Son
William
,
so
the
Plaintiffs
Bill
is
to
examine
the
defects
of
the
said
Recovery
.
The
Defendants
demur
,
for
that
the
Relief
sought
by
the
Bill
,
is
of
a
strange
and
unpresidented
Nature
,
being
to
avoid
and
reverse
a
Common
Recovery
,
had
in
the
said
Mannour
30
years
ago
,
and
that
upon
a
bare
Suggestion
generally
,
that
the
Recovery
is
erroneous
,
without
instancing
wherein
,
which
may
be
said
in
any
case
.
The
Master
of
the
Rolls
declared
,
That
as
that
part
of
the
Bill
which
seeks
to
impeach
or
reverse
the
said
Recovery
for
any
errours
or
defects
therein
,
or
compel
the
said
Lord
to
receive
any
Petition
for
reversal
thereof
,
or
any
ways
to
impeach
the
same
,
his
Honour
declared
,
That
this
Court
being
the
proper
Court
to
supply
the
defects
in
Common
Assurances
,
and
rather
to
support
,
than
to
assist
the
avoiding
or
defeating
of
them
,
and
there
being
no
presidents
of
such
a
Bill
as
this
is
,
he
thought
not
fit
to
admit
of
this
,
nor
to
introduce
so
dangerous
a
president
,
whereby
a
multitude
of
Settlements
and
Estates
,
depending
on
Common
Recoveries
,
suffered
in
Copyhold
Courts
for
valuable
Considerations
,
would
be
avoided
and
defeated
through
the
negligence
or
unskilfulness
of
Clerks
,
and
therefore
conceived
the
said
Common
Recovery
ought
not
to
be
shaken
;
yet
nevertheless
the
Case
being
new
and
great
,
referred
it
to
the
Opinion
and
Determination
of
the
Lord
Chancellor
.
His
Lordship
held
the
Demurrer
good
,
and
Order
to
stand
.
Skinner
contra
Kilby
,
2
Jac.
2.
fo.
72.
THe
Bill
is
to
have
the
benefit
of
a
Bequest
by
the
Will
of
Robert
Kilby
.
The
Will
being
(
viz.
)
Will
.
If
my
Son
Richard
Kilby
should
behave
himself
towardly
,
and
undertake
the
payment
of
my
debts
and
Legacies
,
then
he
to
have
all
my
Lands
in
Tredington
;
The
Son
Devisee
of
Lands
upon
good
behaviour
,
for
his
mis-behaviour
decreedagainst
him
.
if
he
behave
himself
otherwise
,
or
to
neglect
to
pay
my
debts
and
Legacies
as
aforesaid
,
then
he
to
have
but
5
s.
and
left
it
to
the
direction
of
his
Executrix
Jane
Kilby
,
the
Defendants
Mother
,
and
also
Mother
of
the
said
Richard
Kilby
,
the
Plaintiffs
Father
.
That
the
said
Richard
waving
the
said
Devise
made
to
him
,
and
neglecting
the
payment
of
his
said
Fathers
debts
and
Legacies
,
the
said
Jane
undertok
and
paid
the
same
,
being
intituled
by
the
said
Will
,
and
by
her
Will
Bequeathed
to
the
said
Defendant
the
premisses
.
This
Court
upon
reading
the
said
Will
of
Robert
Kilby
the
Testator
,
which
being
as
is
aforesaid
declared
,
that
according
to
the
said
Will
,
the
said
Jane
was
well
intituled
to
the
premisses
,
and
that
the
Defendant
ought
to
enjoy
the
same
,
and
could
not
relieve
the
Plaintiff
but
dismiss
the
Bill
.
Nayler
contra
Strode
,
2
Jac.
2.
fo.
473.
THe
Surrender
of
a
Copyhold
Estate
by
an
Infant
of
4
or
5
years
of
Age
allowed
of
by
this
Court
:
Surrender
of
a
Copyhold
by
an
Infant
of
5
years
of
Age.
Yet
the
Lord
of
the
Mannor
insisted
,
he
never
heard
of
any
admittance
in
that
Mannor
at
such
an
Age.
Cloberry
contra
Lymonds
,
2
Jac.
2.
fo.
1069.
LAnds
extended
in
1
Car.
1.
and
held
in
Extent
,
and
a
Bill
exhibited
to
redeem
,
and
being
not
redeemed
,
the
Bill
dismist
in
16
Car.
Upon
the
buying
the
Equity
of
Redemption
of
Lands
in
Extent
.
Account
decreed
from
the
time
of
the
purchase
.
1.
and
afterwards
he
who
had
the
Extent
by
virtue
of
the
said
dismission
,
sold
the
said
premisses
to
the
Defendant
:
But
the
Plaintiff
having
since
bought
the
Equity
of
Redemption
,
seeks
a
Redemption
.
This
Court
notwithstanding
the
dismission
and
length
of
time
,
ordered
an
account
from
the
time
of
the
Purchase
,
but
no
account
from
any
time
before
,
but
the
profits
to
go
against
the
Interest
to
that
time
.
Newte
contra
Foot
,
2
Jac.
2.
fo.
695.
THe
Defendant
insists
,
Depositions
suppressed
,
because
the
Sollicitors
Clerk
in
the
Cause
,
did
write
as
a
Clerk
in
the
Execution
of
the
Commission
.
That
the
Depositions
in
this
Cause
are
irregulerly
taken
,
and
ought
to
be
suppressed
,
for
that
Mr.
Samuel
Vnderwood
,
who
was
Clerk
to
Mr.
Edward
Gibbon
,
Sollicitor
for
the
Plaintiff
in
this
Cause
,
did
write
as
Clerk
in
Execution
of
the
said
Commission
under
the
said
Commissioners
,
and
the
said
Vnderwood
confessed
the
same
and
solicited
the
Matter
;
for
which
Reasons
the
Defendants
Commissioners
refused
to
joyn
in
the
Execution
of
the
said
Commission
,
it
being
of
great
mischief
,
for
Solicitors
or
their
Clerks
to
be
privy
to
the
taking
of
Depositions
,
in
such
Causes
as
they
Solicite
.
This
Court
was
well
satisfied
,
that
the
said
Depositions
were
(
for
the
Reasons
aforesaid
)
irregularly
taken
,
and
doth
order
that
the
same
be
hereby
suppressed
,
and
that
the
Six
Clerks
Certificate
for
the
regular
taking
of
the
Depositions
be
discharged
.
Griffith
&
al'
contra
Jones
&
al'
,
2
Jac.
2.
fo.
353.
THat
Peter
Griffith
being
seised
in
Fee
of
Lands
,
Will
.
and
possest
of
a
personal
Estate
of
20000
l.
in
1681.
by
his
Will
,
devised
to
his
Brother
the
Plaintiff
200
l.
to
the
Plaintiff
Shonnet
Price
,
and
Dorothy
Parry
,
the
Daughters
of
his
Sister
Shonnet
150
l.
apeice
,
&c.
and
to
the
Sons
and
Daughters
of
his
Brother
and
Sisters
(
not
mentioned
by
name
in
his
Will
)
10000
l.
equally
between
them
,
which
said
Legacy
doth
belong
to
the
Plaintiffs
John
Lloyd
,
and
Alice
Williams
being
the
only
Nephew
and
Neece
not
named
in
the
Will
,
and
the
overplus
of
his
Estate
,
he
obliged
the
Executors
should
pay
and
and
distribute
amongst
his
Brothers
and
Sisters
Children
and
Grandchildren
,
and
the
rest
of
his
poor
Kindred
according
to
his
Executors
discretions
,
and
the
Plaintiff
claims
the
overplus
of
the
said
Estate
,
as
being
all
the
Brothers
and
Sisters
Children
,
and
Grandchildren
of
the
Testator
,
and
poor
Kindred
that
can
take
by
the
Will
.
The
Defendants
,
the
Executors
insisted
,
That
they
conceive
the
distributing
and
apportioning
the
said
surplus
is
left
to
them
by
the
express
words
of
the
Will
,
and
that
they
ought
to
distinguish
the
Grandchildren
,
of
the
Testators
Brothers
and
Sisters
,
whose
Fathers
and
Mothers
were
dead
before
the
Testator
,
and
had
no
particular
Legacies
by
the
Will
,
and
consider
the
Condition
and
number
of
Children
of
the
said
Kindred
,
and
give
most
to
those
that
most
want
,
and
conceived
that
such
of
the
Plaintiffs
as
have
particular
Legacies
,
ought
to
have
but
a
small
one
,
if
any
part
of
the
surplus
,
and
the
Defendants
crave
the
directions
of
this
Court
,
how
far
the
words
(
Poor
Kindred
)
shall
Extend
,
to
what
Degree
of
Relation
.
This
Court
decreed
,
Legacies
to
(
Poor
Kindred
)
how
far
to
be
extended
.
That
the
surplus
of
the
said
Estate
,
be
distributed
to
and
amongst
the
Testators
Brothers
and
Sisters
Children
,
and
Grandchildren
,
and
as
to
the
rest
of
the
poor
Kindred
,
according
to
the
Act
of
Parliament
,
for
distributing
Intestates
Estates
,
and
no
further
,
and
to
be
distributed
in
such
shares
and
propotions
,
as
the
Executors
in
their
discretions
should
think
fit
;
and
whereas
there
are
debts
owing
to
the
Testators
Estate
,
and
the
debtors
poor
,
but
propose
to
pay
as
far
as
they
are
able
.
This
Court
decreed
,
Poor
Debtors
to
the
Testator
,
who
left
a
great
Estate
;
the
Executors
left
at
liberty
to
compound
any
debt
.
That
the
Executors
be
at
liberty
to
compound
any
debt
owing
to
the
said
Estate
,
if
they
should
think
fit
.
Creditors
on
Judgments
and
Bonds
decreed
,
Creditors
on
Judgment
,
and
Bonds
decreed
,
to
redeem
Mortgages
.
to
redeem
Mortgages
towards
satisfaction
of
their
debts
,
fo.
843.
Bernry
contra
Pitt
,
2
Jac.
2.
fo.
373.
THe
Bill
is
,
That
the
Plaintiffs
Father
being
only
Tenant
for
life
of
a
real
Estate
,
which
after
his
death
would
come
to
the
Plaintiff
,
and
the
Plaintiffs
Father
allowing
the
Plaintiff
but
a
small
subsistance
,
and
the
Plaintiff
borrowed
of
the
Defendant
1000
l.
in
1675
,
and
entred
into
Judgment
of
5000
l.
Defezanced
for
the
payment
of
2500
l.
after
the
Plaintiffs
Fathers
death
,
which
hapned
in
1679.
The
Defendant
insists
,
That
he
lent
the
Plaintiff
1000
l
for
which
the
Plaintiff
gave
Bond
,
and
Warrant
of
Attorny
to
confess
Judgment
to
the
Defendant
of
5000
l.
which
was
Defezanced
,
that
in
case
the
Plaintiff
should
out-live
his
Father
,
and
in
one
Month
after
his
Fathers
death
pay
the
Defendant
2500
l.
and
if
the
Plaintiff
should
Marry
in
his
Fathers
life
time
,
then
he
should
from
such
Marriage
during
his
Fathers
life
pay
the
Defendant
Interest
for
the
2500
l.
And
the
Defendant
insists
,
That
if
the
said
Plaintiff
dyed
before
his
Father
,
the
Defendant
had
lost
all
his
Mony
:
This
Cause
being
first
heard
by
my
Lord
Finch
,
9
Feb.
33
Car.
2.
who
then
upon
reading
the
said
Defezance
declared
,
That
as
this
Cause
was
,
he
could
not
releive
the
Plaintiff
otherwise
then
against
the
penalty
,
and
decreed
the
Plaintiff
to
pay
to
the
Defendant
2500
l.
with
Interest
.
This
Cause
was
Re-heard
by
my
Lord
Chancellor
Jeffreys
,
the
Plaintiff
insisted
,
That
he
had
by
order
of
this
Court
5300
l.
upon
the
said
Judgment
,
and
that
the
late
Lord
Chancellor
and
Lord
Keeper
,
had
frequently
releived
against
such
fraudulent
and
corrupt
bargains
,
made
by
Heirs
in
their
Fathers
life
time
,
and
that
there
was
not
any
real
difference
where
the
contract
is
for
Mony
,
and
where
it
is
for
Goods
.
This
Court
on
reading
the
Defezance
declared
it
fully
appeared
,
The
Heir
relieved
against
a
concontingent
contract
,
made
in
his
Fathers
life
time
because
it
seemed
unconscionable
.
That
these
Bargains
were
corrupt
and
fraudulent
,
and
tended
to
the
destruction
of
Heirs
,
sent
hither
for
Education
,
and
to
the
utter
Ruin
of
Families
,
and
as
there
were
new
Frauds
and
subtle
contrivances
for
the
carrying
them
on
;
so
the
relief
of
this
Court
ought
to
be
extended
to
meet
with
,
and
correct
such
corrupt
Bargains
,
and
unconscionable
practices
,
and
decreed
the
former
order
to
be
discharged
,
and
the
Plaintiff
to
be
restored
to
what
he
hath
paid
over
,
and
besides
the
Principal
Mony
and
Interest
.
Durston
contra
Sandys
,
2
Jac.
2.
fo.
108.
THat
the
Defendant
being
Patron
of
the
Rectory
of
Messenden
in
Com'
Gloucester
,
The
Parson
relieved
against
a
Bond
given
for
Resignation
.
and
the
former
Incumbent
having
Resigned
the
same
,
the
Defendant
told
the
Plaintiff
,
he
would
present
him
to
the
said
Rectory
worth
about
100
l.
per
Annum
,
and
the
Plaintiff
coming
to
the
Defendant
for
the
said
Presentation
,
the
Defendant
drew
a
Bond
of
300
l.
penalty
,
with
Condition
,
That
the
Plaintiff
should
resign
the
said
Rectory
at
any
time
within
six
Months
Notice
,
which
the
Plaintiff
sealed
,
and
thereupon
the
Plaintiff
was
Instituted
and
Inducted
,
and
was
ever
since
a
constant
Resident
on
the
place
,
and
hath
been
at
charge
of
Repairs
,
and
the
Plaintiff
demanded
Tithes
of
the
Defendant
,
who
refuses
to
pay
the
same
,
but
gave
the
Plaintiff
Notice
to
resign
,
who
Resigned
the
said
Rectory
into
the
Hands
of
the
Bishop
of
Gloucester
;
but
the
Bishop
refused
to
accept
the
said
Resignation
,
and
ordered
the
Plaintiff
to
continue
to
serve
the
Cure
,
declaring
,
That
he
would
never
countenance
such
Unjust
practices
of
the
Defendant
,
but
ordered
his
Register
to
enter
it
as
an
Act
of
Court
:
That
the
Plaintiff
had
tendred
his
Resignation
,
and
that
the
said
Bishop
had
rejected
it
:
That
the
Defendant
Arrested
the
Plaintiff
on
the
said
Bond
for
not
Resigning
;
so
to
be
relieved
against
the
said
Bond
is
the
Plaintiffs
Suit
.
The
Defendant
insisted
,
That
the
Plaintiff
demanded
more
than
his
just
due
for
Tithes
,
whereupon
the
Defendant
refused
payment
,
and
that
the
Defendant
requesting
the
Plaintiff
to
resign
according
to
the
Condition
of
the
said
Bond
,
the
Defendant
Arrested
him
,
which
he
hopes
is
Just
for
him
to
do
,
and
that
this
Court
will
not
hinder
the
prosecution
,
and
that
the
Plaintiff
hath
no
colour
of
Relief
in
this
Court
against
the
said
Bond
;
and
insist
,
That
the
Reason
of
his
Arresting
the
Plaintiff
on
the
said
Bond
was
his
Non-residence
and
litigious
Carriage
to
the
Parishioners
.
This
Court
declared
,
That
such
Bonds
taken
by
Patrons
from
their
Clerks
,
to
Resign
at
pleasure
may
be
good
in
Law
,
yet
ought
to
be
enjoyned
and
damned
in
Equity
whensoever
they
are
used
to
any
ill
purposes
:
And
the
Defendant
making
ill
use
of
the
said
Bond
,
his
Lordship
decreed
,
That
a
perpetual
Injunction
be
awarded
against
the
Defendant
,
to
stay
proceeding
at
Law
upon
the
said
Bond.
Knight
contra
Atkyns
,
2
Jac.
2.
fo.
604.
THat
the
Plaintiff
is
Brother
and
Heir
as
well
of
John
as
Benjamin
Knight
,
Marriage
Agreement
to
have
Monies
laid
out
in
Lands
for
a
Joynture
to
such
uses
,
the
Remainder
to
the
use
of
the
right
Heirs
of
the
Husband
.
The
Mony
is
not
laid
out
,
the
Husband
dies
without
Issue
;
the
Mony
decreed
to
the
Plaintiff
,
being
right
Heir
.
and
also
Executor
of
the
said
Benjamin
;
and
the
said
John
Knight
being
seised
of
a
Plantation
in
Barbadoes
of
1000
l.
per
Annum
,
by
his
Will
declared
his
debts
to
be
paid
,
and
gave
several
Legacies
,
and
made
his
Brother
Benjamin
sole
Executor
,
and
gave
him
the
residue
of
all
his
real
and
personal
Estate
,
and
the
said
Benjamin
proved
the
Will
,
and
afterwards
a
Treaty
of
Marriage
was
between
the
said
Benjamin
and
Sir
Johnathan
Atkyns
,
on
behalf
of
Frances
the
Daughter
of
Sir
Jonathan
,
upon
which
Treaty
it
was
agreed
,
that
Sir
Jonathan
should
give
the
said
Benjamin
1500
l.
as
a
Portion
with
the
said
Frances
,
and
for
a
Joynture
,
in
case
Frances
survived
,
Benjamin
was
to
add
1500
l.
and
the
said
Sums
to
be
laid
out
in
a
purchase
of
Lands
,
to
be
setled
upon
Benjamin
and
Fra●●●s
for
life
,
and
for
a
Joynture
for
Frances
in
lieu
of
her
Dower
,
and
after
their
decease
to
the
Issue
between
them
,
and
for
want
of
such
Issue
to
the
right
Heirs
of
the
said
Benjamin
,
and
until
such
purchase
the
said
respective
Sums
of
1500
l.
to
be
paid
into
the
hands
of
the
Feoffees
,
and
the
increase
thereof
to
the
uses
aforesaid
;
but
in
regard
such
a
purchase
could
not
be
speedily
found
out
,
Sir
Jonathan
and
Benjamin
became
mutually
bound
to
each
other
by
Bonds
of
3000
l.
penalty
,
with
Condition
reciting
,
That
there
being
suddenly
a
Marriage
to
be
had
between
the
said
Benjamin
and
Frances
,
and
for
setling
a
future
Maintenance
upon
Frances
,
in
case
she
survived
,
and
upon
the
Issue
between
them
.
If
therefore
Sir
Jonathan
,
his
Heirs
,
Executors
,
&c.
should
pay
as
a
Marriage
portion
with
the
said
Frances
into
the
hands
of
two
Feoffees
,
to
be
joyntly
appointed
between
them
1500
l.
which
(
with
the
like
Sum
to
be
paid
by
Benjamin
)
was
to
be
laid
out
upon
good
Security
,
real
or
personal
,
and
the
increase
thereof
for
the
uses
aforesaid
,
and
in
case
the
whole
was
not
provided
within
a
short
time
,
then
so
much
as
either
party
should
deposit
,
and
the
Remainder
with
all
convenient
speed
,
then
the
said
Bonds
to
be
void
:
That
such
provision
was
sufficient
,
and
in
full
of
any
Dower
,
the
said
Frances
might
have
to
Benjamin's
Estate
:
That
no
Feoffees
being
appointed
,
the
1500
l.
still
remains
at
Interest
in
Sir
Jonathans
hands
:
And
the
said
Benjamin
for
payment
as
well
of
his
own
as
his
Brother
Johns
debts
and
legacies
,
and
to
oblige
his
real
and
personal
Estate
for
performance
of
the
Marriage
Agreement
,
did
by
Deed
in
1681.
convey
unto
Trustees
all
his
Plantations
,
Houses
,
&c.
upon
Trust
to
himself
for
life
,
and
after
his
death
to
satisfie
the
said
Bond
of
3000
l.
for
payment
of
1500
l.
to
Sir
Jonathan
,
for
the
future
Maintenace
of
the
said
Frances
,
according
to
the
said
Marriage
Agreement
,
and
in
full
of
Dower
,
and
to
do
all
things
according
as
he
by
his
last
Will
should
direct
:
That
the
said
Benjamin
by
Will
,
10
Dec.
1681.
therein
reciting
the
Condition
of
the
said
Bond
,
gave
his
Wife
1000
l.
unpaid
of
Sir
Jonathans
Bond
,
and
his
Trustees
to
pay
1500
l.
with
500
l.
he
had
received
of
Sir
Jonathan
in
part
of
his
Wives
portion
,
which
Sums
made
in
all
3000
l.
and
was
to
be
laid
out
in
a
purchase
of
Lands
,
to
be
setled
to
the
uses
aforesaid
,
and
made
Hulkot
and
Fowler
Executors
in
Trust
,
to
manage
for
the
Plaintiff
,
whom
he
made
his
sole
Executor
,
who
afterwards
took
upon
him
the
Execution
of
the
said
Will
,
and
claims
the
said
3000
l.
to
be
laid
out
in
Lands
,
to
be
setled
according
to
the
said
Marriage
Agreement
,
which
was
in
case
Benjamin
died
without
Issue
,
the
said
Lands
so
to
be
setled
were
to
come
to
Benjamins
right
Heirs
,
and
the
Plaintiff
is
Instituted
as
Heir
and
Executor
of
Benjamin
.
The
Defendant
Pierce
confesses
the
Marriage
Agreement
and
Bonds
,
as
in
the
Bill
,
and
that
the
Marriage
between
the
said
Henry
and
Frances
took
effect
,
and
the
said
Benjamin
is
since
dead
,
and
that
since
his
death
the
said
Defendant
Pierce
hath
married
the
said
Frances
,
and
is
thereby
intituled
to
the
benefit
of
the
Bond
entred
into
by
the
said
Benjamin
to
Sir
Jonathan
,
and
the
Monies
due
thereon
,
and
to
the
Third
part
of
Benjamins
Lands
.
The
Plaintiffs
insist
,
That
the
said
Frances
dying
without
Issue
,
the
Mony
in
Sir
Jonathan
Atkyns
his
hands
,
ought
now
to
be
paid
to
the
Plaintiff
.
This
Court
(
upon
reading
the
said
Bond
and
Condition
,
and
the
Deed
and
Will
of
Benjamin
)
declared
,
That
by
the
Marriage
Agreement
and
Condition
of
the
Bond
,
it
was
very
clear
that
the
said
Frances
having
no
Issue
by
the
said
Benjamin
could
only
have
an
Estate
for
life
,
or
the
Interest
of
the
Mony
for
her
Maintenance
,
and
that
the
Plaintiff
is
well
intituled
to
have
the
said
3000
l.
paying
the
Defendant
Pierce
Interest
for
the
1500
l.
which
the
said
Benjamin
,
the
Plaintiffs
Testator
,
was
bound
to
lay
out
,
and
decreed
accordingly
.
Kettle
by
contra
Lamb
,
2
Jac.
2.
fo.
1064.
THat
on
a
Treaty
of
Marriage
between
Richard
Kettleby
the
Plaintiffs
younger
Brother
,
Monies
to
be
laid
out
in
Lands
for
a
Joynture
by
Marriage
Articles
.
and
the
Defendant
Ann
,
now
Wife
of
the
Defendant
Atwood
,
Articles
were
entred
into
and
made
between
Thomas
Laud
,
Father
of
the
Defendant
Ann
of
the
first
part
,
and
the
said
Richard
Kettleby
of
the
second
part
,
and
the
Plaintiff
and
others
Trustees
of
the
third
part
,
whereby
the
said
Lamb
Covenanted
to
pay
1500
l.
to
the
said
Trustees
as
a
Marriage-portion
with
the
Defendant
Ann
his
Daughter
,
and
the
said
Richard
Kettleby
Covenanted
to
pay
500
l.
more
,
which
being
2000
l.
was
agreed
to
be
laid
out
in
the
purchase
of
Lands
,
to
be
setled
upon
the
said
Richard
for
life
,
and
after
on
the
said
Trustees
and
their
Heirs
during
the
life
of
Richard
,
to
preserve
the
contingent
Remainders
,
and
after
to
the
use
of
the
said
Ann
his
Wife
during
her
life
,
for
her
Joynture
,
and
after
to
their
first
,
and
so
to
their
seventh
Son
of
their
two
Bodies
and
their
Heirs
successively
,
and
for
want
of
such
Issue
to
the
Daughters
,
and
for
want
of
such
Issue
to
the
right
Heirs
of
the
said
Richard
Kettleby
for
ever
;
and
that
by
the
said
Articles
it
was
agreed
,
that
before
such
purchase
could
be
made
the
said
Trustees
should
place
out
at
Interest
the
said
2000
l.
and
from
time
to
time
pay
over
the
Interest
to
such
person
to
whom
the
Lands
are
intended
to
be
purchased
was
limited
,
as
if
the
same
had
been
purchased
and
setled
accordingly
,
and
there
was
a
Proviso
in
the
Articles
,
That
if
the
said
Richard
died
before
a
purchase
should
be
made
,
leaving
no
Issue
of
his
Body
on
the
Body
of
the
said
Ann
his
intended
Wife
,
and
Ann
survived
him
,
that
in
that
case
the
2000
l.
or
so
much
thereof
as
was
not
laid
out
in
Lands
,
should
either
be
laid
out
in
the
purchase
of
Lands
to
be
setled
upon
the
said
Ann
for
life
,
with
Remainder
to
the
right
Heirs
of
Richard
,
or
else
Three
parts
thereof
,
the
whole
to
be
divided
into
Four
parts
of
such
Moneys
as
should
be
paid
to
the
said
Ann
her
Executors
,
&c.
at
her
Election
,
so
as
she
made
such
Election
within
six
Months
after
the
said
Richards
death
,
otherwise
at
the
Election
of
Richards
right
Heir
:
That
afterwards
the
Marriage
took
effect
,
and
1500
l.
of
the
2000
l.
placed
with
the
said
Lamb
by
the
Trustees
,
who
paid
the
Interest
thereof
to
the
said
Richard
Kettleby
during
his
life
,
and
before
the
Mony
was
laid
out
in
a
purchase
Richard
died
Intestete
,
leaving
Issue
one
Daughter
named
Ann
,
who
likewise
died
in
a
Month
after
the
said
Richard
,
whereupon
the
Right
of
the
2000
l.
or
Lands
to
be
purchased
therewith
after
the
death
of
Ann
the
Wife
accrued
to
the
Plaintiff
Edward
Kettleby
,
as
right
Heir
of
the
said
Richard
Kettleby
;
so
to
have
the
2000
l.
invested
in
Lands
,
and
setled
according
to
the
said
Articles
,
for
the
benefit
of
the
Plaintiff
,
is
the
Plaintiffs
Suit
.
The
Defendant
Atwood
,
who
hath
married
the
said
Ann
,
the
Relict
of
the
said
Richard
Kettleby
insists
,
That
the
said
Ann
his
Wife
is
Administratrix
to
Richard
her
first
Husband
and
the
said
Ann
her
Daughter
,
and
thereby
well
intituled
to
the
personal
Estate
,
and
that
according
to
the
Proviso
in
the
said
Articles
,
the
said
Ann
had
made
her
Election
to
have
1500
l.
of
the
2000
l.
to
be
at
her
own
disposing
,
and
that
she
was
well
intituled
to
the
other
500
l.
as
Administratrix
to
Richard
and
Ann
her
said
Daughter
,
and
that
the
Marriage
Articles
being
meerly
for
the
benefit
of
the
said
Defendant
Ann
Atwood
and
her
Issue
;
and
the
Plaintiff
no
way
intituled
under
the
Consideration
thereof
,
there
was
no
ground
in
Equity
to
compel
a
performance
,
so
as
to
give
the
Plaintiff
the
Defendants
portion
.
This
Case
being
heard
by
the
Lord
Keeper
North
,
he
declared
,
That
the
2000
l.
did
belong
to
the
Administratrix
of
the
said
Richard
Kettleby
,
and
ought
not
to
be
setled
upon
his
Heir
,
and
dismissed
the
Plaintiffs
Bill
,
which
dismission
being
signed
and
inrolled
,
the
Plaintiff
brought
his
Bill
of
Review
against
the
said
Defendants
,
and
for
Error
Assigned
,
that
whereas
it
was
declared
by
the
said
Lord
North
,
that
the
2000
l.
did
belong
to
the
Administratrix
of
Richard
Kettleby
,
and
not
to
be
setled
upon
his
Heir
:
That
the
same
ought
to
be
Decreed
to
be
laid
out
in
Land
,
to
be
setled
upon
the
said
Ann
only
for
life
,
Remainder
to
the
Plaintiff
as
Right
Heir
of
Richard
,
and
his
Right
Heirs
for
ever
,
according
to
the
uses
of
the
Articles
.
To
which
the
Defendant
pleaded
and
demurred
,
insisting
,
the
same
was
obtained
on
good
Grounds
and
Reasons
,
and
farther
insisted
,
that
since
the
said
Dismission
,
and
before
the
Bill
of
Review
,
the
said
Lamb
had
paid
the
said
1500
l.
with
other
money
,
unto
the
Defendant
Atwood
,
in
Right
of
the
said
Ann
his
Wife
,
who
was
Administratrix
to
Richard
Kettleby
,
and
Ann
the
Daughter
,
and
that
in
consideration
thereof
,
the
said
Defendant
Atwood
had
made
a
Settlement
equivalent
thereto
,
for
a
Joynture
for
his
said
Wife
,
and
the
Issue
Male
of
their
two
Bodies
,
with
a
provision
for
Daughters
,
and
that
they
had
a
Son
then
living
,
and
prayed
the
Judgment
of
this
Court
therein
.
Which
Plea
and
Demurrer
,
was
argued
before
the
Lord
Chancellor
Jefferies
,
which
his
Lordship
over
ruled
,
and
Ordered
the
Defendant
to
answer
,
and
he
would
hear
the
Cause
ab
origine
,
at
which
hearing
,
the
Defendant
Atwood
and
his
Wife
insisted
,
That
the
Plaintiffs
demand
being
only
a
Remote
Remainder
in
Fee
,
as
Right
Heir
of
the
Husband
,
was
not
so
valuable
in
Interest
,
as
for
a
Court
of
Equity
to
Decree
a
purchase
to
be
made
for
the
Sale
thereof
,
and
to
take
the
money
from
the
Wife
and
Administratrix
,
to
make
that
purchase
,
when
she
ought
to
return
the
same
as
Assets
,
or
howsoever
1500
l.
of
the
money
was
her
own
Portion
,
and
belongs
to
her
by
her
Election
within
six
Months
,
and
though
according
to
the
strict
Letter
of
the
Articles
her
Husband
Richard
Kettleby
,
could
not
be
said
to
die
leaving
no
Issue
,
because
he
had
a
Daughter
living
at
the
time
of
his
death
,
yet
the
Daughter
dying
within
the
six
Months
,
allotted
for
the
Wives
Election
,
in
case
he
had
died
leaving
no
Issue
,
there
was
great
equity
to
extend
the
Construction
of
that
Clause
of
the
Articles
,
so
far
as
to
give
her
back
her
own
1500
l.
portion
.
The
Plaintiff
insisted
,
That
such
Remainders
in
Fee
have
been
considered
by
this
Court
,
and
purchases
decreed
to
be
made
and
limited
to
such
Right
Heirs
,
and
that
the
2000
l.
in
this
Case
,
cannot
be
Assets
,
and
in
like
Cases
had
been
so
adjudged
at
Common
Law
;
and
in
this
Case
the
Articles
have
expresly
provided
,
that
the
money
should
go
as
the
Land
ought
to
have
gone
,
as
if
a
purchase
had
been
made
therewith
;
and
as
for
the
pretence
of
the
said
Defendant
Anns
electing
1500
l.
her
power
of
electing
did
never
arise
,
nor
can
her
power
be
enlarged
by
this
Court
,
beyond
the
express
words
of
the
Articles
,
nor
is
there
reason
for
it
in
this
case
,
in
regard
the
Articles
provided
,
that
she
shall
have
a
Dower
besides
,
and
the
said
Ann
by
virtue
of
her
two
Administrations
,
hath
a
great
personal
Estate
besides
the
2000
l.
in
question
.
This
Court
declared
,
That
the
2000
l.
Money
to
be
laid
out
in
Land
,
shall
be
apapplied
as
the
Land
should
have
been
,
had
it
been
purchased
.
must
go
,
as
the
Lands
ought
to
have
gone
,
in
case
a
purchase
had
been
made
,
and
yet
the
Wife
had
no
power
to
elect
1500
l.
part
thereof
,
because
her
Husband
died
leaving
Issue
,
and
so
her
power
of
election
never
arose
,
nor
did
any
Circumstances
appear
to
his
Lordship
in
this
Cause
,
to
induce
him
to
inlarge
the
Construction
of
the
Articles
,
touching
such
power
of
electing
,
beyond
the
express
words
thereof
,
and
decreed
the
said
dismission
to
be
reversed
,
and
that
the
Defendant
Atwood
,
and
Ann
his
Wife
,
do
lay
out
the
2000
l.
for
purchasing
Lands
in
possession
in
Fee
simple
,
to
be
setled
according
to
the
intent
of
the
Articles
.
And
as
for
the
Defendants
the
Trustees
,
Trustees
indempnified
.
in
regard
they
relyed
upon
the
said
dismission
,
Signed
and
Inrolled
for
their
indempnity
,
in
paying
the
said
2000
l.
to
the
said
Atwood
at
his
Wife
,
they
are
indempnified
thereby
.
Paggett
contra
Pagget
,
3
Jac.
2.
fo.
2.
A
Deed
of
Revocation
,
Blanks
filled
up
after
the
Sealing
and
Execution
of
a
Deed
,
yet
good
.
and
a
new
Settlement
made
by
that
Deed
tho'
after
the
sealing
and
execution
of
the
said
Deed
Blanks
were
filled
up
in
the
said
Deed
,
and
the
said
Deed
not
read
again
to
the
party
,
nor
resealed
and
executed
,
yet
held
a
good
Deed.
Smith
contra
Fisher
,
3
Jac.
2.
fo.
641.
THat
Susan
Beale
by
her
Will
in
writing
after
several
Legacies
thereby
given
,
Money
deviled
to
one
for
life
,
with
Limitations
over
good
.
gave
all
the
rest
and
residue
of
her
Estate
,
unbequeathed
,
which
consisted
mostly
in
ready
money
,
to
be
put
forth
to
Interest
by
her
Executors
,
and
one
half
of
the
Interest
to
be
paid
to
the
Plaintiff
Ann
Cole
her
Sister
,
during
her
life
,
and
the
other
half
of
the
Interest
unto
the
Plaintiff
Ann
Smith
,
Daughter
of
the
said
Ann
Cole
,
and
after
her
Mothers
decease
,
to
have
all
the
Interest
during
her
life
,
and
if
the
said
Ann
Smith
died
without
Issue
of
her
Body
,
then
the
principal
of
the
Residue
,
should
be
equally
divided
between
the
Defendants
,
Mary
Cleever
,
and
Elizabeth
Farmer
.
The
Question
is
,
whether
the
devise
over
to
the
Defendant
Clever
and
Farmer
as
aforesaid
,
was
a
good
devise
.
This
Court
declared
,
that
the
said
Will
was
a
good
Will
,
as
to
the
limitations
over
to
the
Defendant
Clever
and
Farmer
,
and
decreed
the
Executors
to
account
accordingly
.
Com'
Dorsett
contra
Powle
,
3
Jac.
2.
fo.
148.
599.
THis
Case
is
,
Separate
Maintenance
.
where
by
the
Deeds
and
Agreement
before
Marriage
,
the
Countess
of
Dorset
had
an
absolute
power
to
dispose
of
all
the
Personal
Estate
she
had
at
the
time
of
her
Marriage
with
the
Defendant
,
and
the
proceed
thereof
,
and
had
by
her
Will
and
otherwise
,
well
disposed
of
,
and
appointed
the
same
to
the
Plaintiff
,
and
this
Court
Ordered
the
Defendant
to
confirm
the
same
;
but
as
to
the
Rents
and
Profits
of
the
Real
Estate
,
upon
consideration
of
the
several
Clauses
of
the
Deed
,
relating
to
the
said
Estate
,
and
different
penning
of
the
same
from
the
other
Deeds
,
that
concerned
the
aforesaid
personal
Estate
,
his
Lordship
declared
,
that
the
said
Countess
had
no
power
to
dispose
of
the
same
.
By
Indenture
Tripertite
,
Dated
28th
of
June
,
31
Car.
2.
made
between
the
Defendant
Mr.
Powle
of
the
first
part
,
Sir
Thomas
Littleton
and
Charles
Brett
Esquire
of
the
second
part
,
and
the
Countess
of
Dorsett
on
the
third
part
,
reciting
,
That
the
said
Countess
was
seized
in
Fee
of
several
Manor
Lands
,
Tenements
and
Hereditaments
in
England
,
and
reciting
,
there
was
a
Marriage
intended
between
Mr.
Powle
and
the
Countess
,
it
was
agreed
,
that
if
the
Marriage
took
effect
,
the
Countess
should
during
the
Coverture
,
receive
and
dispose
to
her
own
use
,
and
at
her
own
Will
and
Pleasure
,
of
all
the
Right
and
Title
she
had
or
claimed
in
the
said
Manour
Lands
and
Premisses
,
or
in
any
other
Manours
or
Lands
of
the
Countess
in
England
,
and
of
all
the
Rents
and
Profits
thereof
,
so
as
Mr.
Powle
his
Executors
.
Administrators
,
and
Assigns
,
were
not
to
intermeddle
nor
have
any
Benefit
or
Advantage
thereby
in
Law
or
Equity
;
but
should
joyn
with
the
Countess
from
time
to
time
,
in
the
disposing
thereof
,
as
she
should
appoint
,
and
the
Defendant
Mr.
Powle
thereby
Covenanted
,
that
if
the
Marriage
took
effect
,
Mr.
Powle
his
Execuecutors
or
Administrators
,
without
the
consent
of
the
Countess
in
writing
,
would
not
incumber
the
premisses
,
or
receive
the
Rents
and
Profits
to
their
own
use
;
but
from
time
to
time
would
upon
request
,
Authorize
such
persons
after
receiving
the
same
for
the
Countess's
separate
use
,
as
she
should
think
fit
,
so
as
he
might
have
nothing
to
do
therewith
,
either
in
Law
or
Equity
,
and
that
upon
request
,
he
would
make
reasonable
Leases
of
the
premisses
for
such
Considerations
and
Terms
,
and
under
such
Covenants
,
as
the
Countess
should
think
fit
,
and
gave
such
Acquittances
for
the
Rents
,
as
should
be
requisite
and
convenient
,
and
at
the
Charges
of
the
Countess
,
and
her
said
Trustees
,
should
Commence
and
Prosecute
any
Suit
necessary
for
the
Recovery
of
any
part
of
her
Estates
,
and
in
defence
of
her
Right
thereto
,
and
that
the
said
Countess
might
dispose
of
the
premisses
,
and
receive
the
profits
according
to
the
true
intent
and
meaning
of
the
said
Indenture
Tripartite
,
without
the
Interruption
of
Mr.
Powle
his
Executors
,
or
any
claiming
under
him
or
them
.
And
by
another
Indenture
Tripartite
,
28
June
31
Car.
2.
between
the
Countess
of
the
first
part
,
Sir
Thomas
Littleton
and
Mr.
Brett
of
the
second
part
,
and
Mr.
Powle
of
the
third
part
,
reciting
,
that
where
as
there
was
a
Marriage
to
be
had
between
Mr.
Powle
and
the
Countess
,
and
that
by
agreement
,
she
was
to
have
and
dispose
to
her
own
use
,
and
at
her
pleasure
,
all
her
Jewels
,
Plate
,
Goods
and
Chattels
,
both
Real
and
Personal
,
and
the
benefit
thereof
,
so
as
Mr.
Powle
his
Executors
or
Administrators
,
were
not
to
intermeddle
therewith
,
the
Countess
by
Mr.
Powles
consent
did
make
a
Bargain
and
Sale
to
the
said
Littleton
and
Brett
,
of
all
her
Jewels
,
Plate
,
Houshold-stuff
,
Money
,
Goods
and
Chattels
,
Real
and
Personal
upon
Trust
,
that
they
should
dispose
of
the
same
,
and
the
proceed
thereof
to
such
persons
,
and
such
uses
as
the
Countess
by
any
writing
,
or
by
her
Will
should
appoint
,
so
as
Mr.
Powle
might
not
have
any
power
or
interest
in
Law
or
Equity
,
to
Sell
,
Charge
,
or
Dispose
of
the
same
,
or
any
part
thereof
,
and
for
want
of
such
appointment
upon
Trust
,
to
deliver
the
same
,
or
such
part
thereof
as
should
be
undisposed
of
by
the
said
Countess
to
her
Executors
or
Administrators
,
and
Mr.
Powle
by
the
last
Deed
covenanted
not
hinder
the
same
,
and
also
that
they
should
be
free
from
all
debts
and
ingagements
of
the
said
Powle
;
That
Mr.
Powle
and
the
Countess
intermarried
,
and
afterwards
the
said
Countess
according
to
the
said
agreement
,
and
power
as
long
as
she
lived
disposed
of
all
the
Rents
,
and
profits
of
her
real
Estate
,
and
without
Powle's
intermedling
,
That
aftewards
the
said
Trustees
dying
,
Mr.
Powle
by
Deed
with
the
said
Countess
,
transferrd
the
said
Trust
to
other
Trustees
,
and
also
covenanted
not
to
intermeddle
,
but
the
said
premisses
to
be
solely
in
the
power
of
the
said
Countess
:
And
it
was
agreed
,
that
the
receipts
of
the
Countess
should
be
sufficient
for
the
premisses
,
or
the
preceed
thereof
,
notwithstanding
tthe
Coverture
:
That
the
Countess
by
her self
and
the
Trustees
received
the
rents
and
profits
of
the
premisses
,
and
disposed
thereof
without
Mr.
Powle
:
That
the
said
Countess
by
Deed
of
appointment
in
1682
,
and
by
her
Will
in
1684
,
whereof
she
made
the
Plaintiff
the
Earl
of
Dorset
her
Son
Executor
,
to
whom
she
(
after
some
Bequests
and
appointments
to
other
persons
,
)
Bequeathed
and
appointed
all
the
rest
of
her
personal
Estate
,
and
also
gave
to
him
all
her
Monies
and
Rents
,
and
all
Arrears
of
Rents
in
her
Steward
and
Tenants
Hands
,
to
all
which
the
Plaintiff
the
Earl
(
the
said
Countess
being
dead
)
is
intituled
.
The
Defendant
Powle
insists
,
that
as
to
the
Rents
and
Profits
of
the
Real
Estate
,
he
claims
the
same
,
and
that
he
was
so
far
from
not
intermedling
therewith
,
that
he
would
not
permit
the
Stewards
to
receive
the
Rents
without
Warrant
from
himself
,
and
that
he
passed
all
the
Accounts
thereaf
,
and
rectified
them
after
the
Countess
had
signed
them
.
This
Court
declared
,
Feme
Coverts
disposing
of
her
personal
Estate
,
according
to
Agreement
at
Marriage
,
decreed
good
:
But
not
as
to
the
Rents
and
Profits
of
her
real
Estate
.
There
was
an
absolute
Power
in
the
said
Countess
of
disposing
all
her
personal
Estate
that
she
was
possest
of
at
the
time
of
her
Marriage
,
and
the
proceed
thereof
,
and
that
she
had
pursuant
to
such
Power
well
disposed
of
the
same
,
and
decreed
the
Defendant
Powell
to
confirm
the
said
Will
and
Appointment
:
But
as
touching
the
rent
and
profits
of
the
real
Estate
,
upon
Consideration
of
several
Clauses
of
the
Deed
relating
to
the
said
Estate
,
and
different
Penning
of
the
same
from
the
other
Deeds
that
concerned
the
personal
Estate
,
This
Court
declared
,
the
said
Countess
had
no
power
to
dispose
of
the
same
,
and
all
the
Arrears
thereof
to
be
accounted
for
to
the
said
Mr.
Powle
.
THE
CASE
OF
The
Duke
of
Albemarle
;
With
the
Arguments
thereon
.
Com'
Mountague
&
al'
contra
Com'
Bath
&
al'
,
4
W.
&
M.
fo.
90.
THe
Plaintiffs
,
Revocation
.
Will
.
after
a
Trial
at
Law
directed
out
of
this
Court
,
wherein
the
Point
in
Issue
was
,
Whether
a
Settlement
was
well
made
and
executed
,
and
a
Verdict
for
the
Defendant
,
that
it
was
good
and
valid
in
Law
?
They
come
into
this
Court
to
seek
Relief
upon
the
Equity
reserved
against
the
said
voluntary
Settlement
,
wherein
was
a
power
of
Revocation
by
virtue
of
a
Will
afterwards
made
,
the
Question
being
,
Whether
in
Equity
the
said
Will
was
a
Revocation
of
the
Deed
,
tho'
not
strictly
pursued
?
The
Bill
was
:
That
Christopher
,
Bill
.
late
Duke
of
Albemarle
being
seised
of
several
Mannors
,
Lands
and
Tenements
in
several
Counties
having
married
the
Duke
of
Newcastle's
Daughter
,
and
being
possest
of
a
considerable
personal
Estate
,
frequently
declared
,
That
he
would
make
ample
provision
for
the
Dutchess
(
who
then
had
but
2000
l.
per
Annum
Annuity
setled
on
her
for
a
Joynture
by
George
Duke
of
Albemarle
,
(
upon
her
Marriage
with
Duke
Christopher
)
for
the
support
of
her
Dignity
in
case
she
survived
him
,
and
that
if
he
should
have
no
Issue
Male
,
he
would
leave
to
her
for
her
life
at
least
8000
l.
per
Annum
out
of
his
real
Estate
,
and
in
pursuance
of
such
his
Resolutions
,
and
likewise
for
the
setling
of
the
Remainder
of
his
Lands
upon
his
dying
without
Issue
on
Colonel
Monk
and
others
,
made
and
published
his
last
Will
in
writing
,
dated
1
July
1687.
Whereby
,
He
gives
to
his
Wife
Coaches
,
Jewels
,
Plate
,
&c.
and
for
advancing
her
living
and
support
,
if
he
have
no
Issue
Male
,
and
in
full
of
her
2000
l.
per
Annum
Rent-charge
and
Dower
,
he
gives
her
his
Lands
in
Essex
,
Stafford
,
Lancaster
,
York
,
Lincoln
,
Surrey
,
Devon
,
Hertford
,
Middlesex
,
Berks
and
Southampton
,
for
her
life
,
and
if
she
accept
the
same
,
that
she
shall
release
the
2000
l.
per
Annum
within
Three
years
after
his
death
,
or
else
that
Devise
to
be
void
.
The
Remainder
of
his
Lands
in
Berks
to
Sir
Walter
Clergyes
pur
vie
,
and
after
in
Tail
Male
,
Remainder
to
his
Cousin
Henry
Monk
in
Tail
Male
,
Remainder
to
his
own
Right
Heirs
.
To
Bevile
Greenvile
(
Son
to
the
Earl
of
Bath
)
his
Freehold
Lands
in
Surrey
and
Southampton
for
life
,
and
then
in
Tail
Male
,
Remainder
to
his
Cousin
Tho.
Monck
pur
vie
,
and
then
in
Tail
Male
,
Remainder
to
his
Cousin
Henry
Monck
in
Tail
Male
,
Remainder
to
his
own
right
Heirs
.
His
Lands
in
Devon
to
Colonel
Thomas
Monck
.
for
life
,
and
then
in
Tail
Male
,
Remainder
to
his
Cousin
Henry
Monck
in
Tail
Male
,
remainder
to
his
own
right
Heirs
.
All
his
Lands
in
Ireland
to
his
Cousin
Henry
Monck
in
Tail
Male
,
with
Remainder
to
his
own
right
Heirs
.
Provided
,
That
if
he
have
any
Issue
,
all
devises
of
any
Sums
of
Mony
(
except
for
his
Funeral
,
his
Father's
Monument
,
Alms-houses
and
Legacies
to
his
Executors
)
shall
be
void
,
and
if
he
leave
any
Issue
,
the
premisses
devised
to
Sir
Walter
Clergyes
,
Mr.
Greenvile
,
Thomas
and
Henry
Monck
.
and
their
Issue
shall
go
to
his
Issue
,
(
viz.
)
to
his
Sons
successively
in
Tail
Male
,
if
Daughters
,
in
Tail
with
Remainders
to
the
said
persons
,
as
before
Provided
,
If
he
leave
Issue
Male
,
he
deviseth
to
his
Wife
,
as
an
Additional
Joynture
to
her
Rent
charge
,
Lands
in
Devon
and
Essex
for
her
life
,
and
makes
the
Dutchess
during
her
life
,
and
in
case
of
her
death
,
the
Dutchess
of
Newcastle
Guardians
of
his
Children
he
shall
have
.
And
in
case
it
happen
,
that
Colonel
Thomas
Monck
,
or
any
Heirs
males
of
his
Body
shall
live
to
come
and
be
in
possession
of
the
premisses
devised
to
him
,
he
desires
they
will
live
at
Potheridge
,
the
Ancient
Seat
of
the
Family
,
and
desires
his
Majesty
to
grant
them
the
Title
of
Baron
Monck
of
Potheridge
,
that
it
may
remain
in
the
Family
in
Memory
of
his
Father
and
himself
,
and
his
Service
his
Father
had
the
Honour
to
do
the
Crown
in
the
Restauration
,
and
makes
the
Duke
of
Newcastle
,
Lord
Cheney
,
Jarvis
Peirpoint
,
Sir
Walter
Clergyes
,
Sir
Thomas
Stringer
,
Henry
Pollexfen
Esq
;
and
others
,
Executors
.
That
the
Duke
gave
direction
to
Henry
Pollexfen
Esq
;
to
make
this
Will
,
and
when
drawn
,
was
fully
approved
of
by
the
Duke
upon
mature
deliberation
:
Which
Will
being
in
Three
parts
he
carefully
lock'd
up
,
and
after
leaving
Two
parts
of
his
Will
to
two
persons
and
kept
the
Third
,
he
went
to
Jamaica
.
That
the
Duke
,
when
in
Jamaica
,
heard
Colonel
Thomas
Monck
was
dead
in
Holland
,
sent
to
the
Earl
of
Bathe
,
Sir
Tho.
Siringer
and
others
,
to
send
over
for
Chripher
Monck
,
the
Colonels
eldest
Son
,
to
Educate
him
so
as
to
fit
him
to
bear
the
Character
of
one
to
whom
he
intended
the
greatest
part
of
his
Estate
,
if
he
died
without
Issue
.
In
September
1688.
the
Duke
sickned
in
Jamaica
,
and
there
again
published
his
said
Will
,
and
declared
that
if
he
died
,
the
Box
and
Will
should
be
delivered
to
the
Dutchess
,
and
died
in
October
following
.
That
the
Dutchess
at
her
Return
from
Jamaica
found
,
that
the
Earl
of
Bathe
set
up
another
Will
,
dated
3.
Aug.
1675.
whereby
the
Remainder
of
the
greatest
part
of
the
Estate
was
given
to
the
Earl
of
Bathe
and
his
Heirs
;
and
likewise
a
Settlement
by
way
of
Lease
and
Release
,
in
corroboration
of
that
Will
,
by
which
he
seeks
to
avoid
and
frustrate
the
Will
of
1687.
That
the
Duke
sent
to
the
Earl
of
Bathe
for
the
Will
of
1675.
(
if
any
such
)
to
have
it
delivered
to
him
,
that
he
might
make
another
Will
:
That
the
Will
of
1687.
was
Sealed
at
Sir
Robert
Claytons
the
same
day
after
other
Writings
had
been
by
him
sealed
to
the
Lord
Chancellor
Jeffreys
of
some
Lands
sold
to
him
;
and
that
the
Dutchess
,
nor
any
of
her
Relations
ever
knew
or
heard
of
the
said
Deeds
,
till
after
the
Dukes
death
,
nor
known
to
Sir
Thomas
Stringer
,
who
was
the
Dukes
standing
Councel
,
and
the
Plaintiffs
farther
insist
,
if
there
were
such
Deed
,
yet
it
ought
not
to
avoid
or
impeach
the
said
last
Will
,
though
the
power
of
Revoking
the
same
,
was
not
literally
pursued
,
yet
the
same
in
Equity
,
ought
to
be
taken
as
a
Revocation
,
and
the
rather
,
for
that
at
the
making
of
the
Will
,
the
Duke
remained
owner
of
the
Estate
,
and
he
lookt
upon
himself
so
to
be
,
for
that
he
had
since
the
said
pretended
Deeds
,
sold
some
part
of
the
Estate
to
Chancellor
Jefferies
,
without
any
Revocation
,
and
the
Earl
of
Bath
paid
no
valuable
Consideration
,
and
that
he
ought
to
be
protected
in
the
enjoyment
of
the
personal
Estate
,
and
the
Specifick
Legacies
devised
to
her
,
in
the
Will
of
1687.
tho'
the
Will
of
75.
(
if
any
such
be
)
was
intended
by
the
Duke
,
principally
to
hinder
the
discent
to
his
next
Heir
;
and
the
Deeds
(
if
such
there
be
)
were
for
the
same
purpose
,
and
that
tho'
the
Deed
recites
to
confirm
the
last
Will
of
75.
yet
does
in
several
places
controul
it
,
and
alter
it
,
whereby
and
by
the
extraordinary
strange
and
unprecedented
Declarations
,
Provisoes
and
Covenants
therein
,
the
Plaintiff
believes
,
the
Deeds
were
never
executed
by
the
Duke
,
or
if
so
,
that
he
was
surprised
therein
,
and
pray
Relief
in
the
premisses
.
To
this
the
Defendant
makes
Answer
,
Answer
.
and
sets
forth
the
Will
of
1675.
whereby
the
greatest
part
of
the
whole
Estate
was
given
to
the
Earl
and
his
Heirs
,
and
sets
forth
the
Considerations
of
his
so
doing
,
as
Antient
Kindred
,
and
Esteem
between
Duke
George
,
and
the
Earl
of
Bath
,
and
several
Services
and
good
Offices
that
he
had
done
the
Family
,
and
likewise
sets
forth
,
that
being
well
satisfied
with
such
his
disposition
of
his
Estate
,
and
finding
that
he
had
been
often
importuned
to
alter
the
same
,
and
fearing
lest
the
repeated
Practises
and
Arts
attempted
against
such
his
Disposition
,
might
some
time
or
other
surprise
him
into
a
Compliance
,
Consulted
with
Sir
William
Jones
and
other
his
Councel
,
how
to
Obviate
such
practises
,
and
to
settle
his
Estate
in
such
manner
,
as
that
it
might
not
be
avoided
,
although
for
his
ease
,
he
should
at
any
time
seem
to
yield
to
the
Sollicitations
of
his
near
Relations
,
whereupon
in
Anno
1681.
the
Duke
makes
a
Settlement
,
wherein
he
begins
:
That
for
the
assuring
of
the
Honour
,
Manours
,
&c.
upon
a
Person
of
Honour
,
&c.
and
for
the
Corroborating
and
Confirming
the
said
Will
of
75.
and
to
the
end
,
that
no
pretended
last
Will
should
be
set
up
by
any
Person
whatsoever
;
and
for
the
Natural
Affection
that
he
beareth
to
the
Earl
of
Bath
,
&c.
grants
by
Lease
and
Release
,
several
Mannors
,
Lands
and
Tenements
,
&c.
some
in
Possession
,
and
some
in
Remainder
,
upon
the
Earl
of
Bath
in
Fee
,
and
so
to
Walter
Clergies
,
&c.
in
which
Deed
there
was
this
Proviso
:
Proviso
.
That
if
the
Duke
shall
at
any
time
during
his
life
,
be
minded
to
make
void
the
said
Indenture
,
or
any
Estate
therein
contained
,
or
to
dispose
of
the
said
Honours
,
Manours
and
Lands
in
any
other
sort
,
or
to
any
other
Person
or
Persons
,
and
his
or
their
Heirs
,
or
for
any
other
purposes
,
and
the
same
his
Mind
,
Intent
and
purpose
,
should
signifie
and
declare
in
Writing
,
under
his
Hand
and
Seal
in
the
presence
of
six
Credible
Witnesses
,
(
three
whereof
to
be
Peers
of
this
Realm
)
and
should
pay
to
his
Trustees
,
or
any
of
them
,
the
Sum
of
Six
pence
,
with
intent
or
purpose
to
frustrate
or
make
void
the
said
Indentures
,
That
then
and
not
otherwise
,
and
immediately
after
such
Signification
,
Declaration
,
and
payment
or
tender
of
payment
of
6
d.
as
aforesaid
,
the
said
Use
and
Uses
,
Estate
and
Estates
,
Trusts
,
Confidence
,
Intents
and
Purposes
,
and
all
and
so
much
of
the
premisses
,
whereof
the
Duke
should
make
such
Signification
or
Determination
,
should
cease
Determin
,
and
be
utterly
void
to
all
Intents
,
Construction
and
Purposes
whatsoever
,
and
that
then
,
and
from
thenceforth
,
it
should
and
might
be
lawful
for
Duke
by
such
Writing
,
or
any
other
Deed
or
Writing
Subscribed
,
Sealed
and
Testified
as
aforesaid
,
to
declare
new
or
other
Use
or
Uses
,
Trust
or
Trusts
of
all
or
so
much
of
the
premisses
,
whereof
the
Duke
should
make
any
such
Signification
or
Declaration
,
or
otherwise
to
dispose
of
the
premisses
,
or
any
part
thereof
at
his
Free
Will
and
Pleasure
,
any
thing
in
the
Deed
to
the
contrary
notwithstanding
.
And
for
the
further
prevention
of
the
mischief
and
Inconveniences
that
might
attend
any
future
or
suddain
Surreptitious
Will
,
Covenant
.
which
might
at
any
time
defeat
his
Recited
Will
(
which
he
declares
to
have
made
upon
Mature
Deliberation
)
Covenants
for
himself
,
his
Heirs
,
Executors
and
Administrators
with
the
Duke
of
New-castle
,
and
(
his
Trustees
)
that
he
would
not
Revoke
,
Annul
or
Discharge
the
said
Will
,
or
any
the
Legacies
thereby
devised
,
unless
by
some
instrument
Sealed
and
Executed
in
the
presence
of
many
,
and
such
Witnesses
,
as
are
in
the
said
Proviso
specified
,
declared
and
described
for
Credible
Witnesses
within
the
said
Proviso
,
according
to
the
Intention
,
Literal
Sense
,
and
true
meaning
of
the
Duke
expressed
in
the
said
Proviso
.
He
denies
the
said
Deed
was
obtained
by
Surprise
;
but
that
the
Duke
executed
the
same
in
the
presence
of
many
Credible
Witnesses
,
and
that
the
Duke
left
the
Deed
and
Will
in
his
keeping
.
And
as
to
so
much
of
the
Bill
,
as
requires
the
Defendant
to
give
an
account
of
what
part
of
the
said
Dukes
Personal
Estate
came
to
the
Defendants
Hands
,
he
is
Advised
by
the
Rules
of
this
Honourable
Court
,
that
he
is
not
Compellable
to
Answer
thereunto
,
for
that
it
appears
by
the
Plaintiffs
Bill
,
that
at
the
time
of
the
Exhibiting
thereof
,
the
Plaintiffs
were
not
intituled
to
make
such
demand
,
or
to
have
such
account
,
it
thereby
appearing
of
their
own
shewing
,
that
they
have
not
proved
the
said
Will
of
87.
but
that
the
same
was
,
and
still
is
under
Controversie
undetermined
in
the
Prerogative
Court
,
whereof
,
or
as
to
that
part
of
the
Bill
he
demurs
.
As
to
the
Objection
,
That
it
was
a
Concealed
Will
and
Deed
,
the
Defendants
insist
,
that
it
was
done
silently
,
but
the
Duke
would
have
it
kept
Secret
,
that
he
might
be
free
from
Trouble
and
Importunity
.
And
they
insist
,
That
as
to
the
last
Will
of
85.
That
the
Duke
Advised
with
Councel
,
to
know
whether
a
Will
made
after
the
Settlement
,
would
avoid
or
impeach
the
Settlement
,
was
answered
,
that
it
would
not
,
and
that
Proviso
must
be
strictly
pursued
,
whereupon
he
was
well
satisfied
,
and
that
the
said
Deed
ought
to
be
supported
,
and
not
set
aside
in
Equity
,
being
made
upon
such
Me●●torious
Consideration
of
Blood
,
Merit
,
&c.
The
Plaintiffs
insist
,
That
the
said
Deed
(
if
any
such
)
being
a
Voluntary
Settlement
only
,
that
the
Will
of
87.
is
a
good
Revocation
thereof
,
in
a
Court
of
Equity
.
So
that
the
great
Question
was
,
if
the
said
Deed
(
it
being
found
to
be
valid
at
a
Trial
at
Law
)
is
Revoked
by
the
said
last
Will
,
according
to
Equitable
Intention
or
Construction
.
This
Cause
having
been
Debated
and
Argued
several
times
by
Learned
Councel
,
and
afterwards
by
three
Judges
,
(
viz.
)
my
Lord
Chief
Justice
Holt
,
the
Lord
Chief
Justice
Treby
,
and
Mr.
Baron
Powell
,
it
was
agreed
by
them
,
that
the
Deed
was
a
good
Deed
,
well
executed
,
and
not
Revoked
by
the
Will
of
1687.
The
Lord
Chief
Justice
Treby's
Argument
in
short
was
thus
:
In
1675.
the
Duke
made
his
Will
,
and
declares
in
respect
that
the
Earl
of
Bathe
was
his
Kinsman
,
and
had
done
many
Kindnesses
to
him
and
his
Family
,
the
Earl
should
have
the
greatest
part
of
his
Estate
,
and
gives
several
Legacies
to
one
Monck
;
and
then
he
makes
a
Deed
of
Settlement
in
1681.
tho'
the
Limitations
by
the
one
and
the
other
differ
;
but
it
is
not
made
to
revoke
,
but
to
confirm
the
Will.
Both
the
Will
of
1675.
and
Deed
of
1681.
do
agree
in
giving
the
greatest
part
of
the
Estate
to
the
Earl
of
Bathe
,
but
the
Proviso
in
the
Deed
makes
the
dispute
;
and
then
there
is
a
Will
of
1687.
wherein
a
larger
Estate
is
given
to
the
Dutchess
and
Colonel
Monck
,
&c.
and
desires
the
Honour
of
Potheridge
may
be
established
on
the
Moncks
.
The
Plaintiffs
Bill
is
to
establish
the
Will
of
1687.
and
set
aside
the
Deed
of
1681.
and
Will
of
1675.
And
the
Deed
on
the
Hearing
of
the
Cause
was
directed
to
be
tried
,
and
a
Verdict
for
the
Defendant
,
and
the
Plaintiff
hath
acquiesced
under
it
,
and
so
this
Deed
must
be
taken
as
a
good
Deed
and
Conveyance
without
any
suspicion
,
for
the
Right
was
tried
,
and
the
whole
Contents
tried
,
and
if
it
were
good
at
Law
,
whether
there
be
cause
to
set
it
aside
in
Equity
is
the
Question
?
He
was
of
Opinion
,
That
the
Deed
was
a
good
Deed
,
and
ought
not
to
be
impeached
in
this
Court
.
The
Plaintiffs
Arguments
against
the
Deed
are
:
1.
Surprize
.
2.
Concealment
.
3.
That
the
Will
of
1687.
is
a
Revocation
in
Equity
.
4.
That
there
is
a
Trust
.
As
to
the
Surprize
:
He
observed
,
they
did
not
make
use
of
the
word
Fraud
in
gaining
the
Deed
,
but
that
it
was
something
put
upon
the
Duke
for
want
of
deliberation
.
He
said
,
he
was
not
satisfied
that
there
was
any
Surprize
on
the
Duke
,
for
he
was
not
languishing
at
that
time
under
any
Sickness
,
but
it
was
done
and
executed
in
good
Company
and
after
dinner
,
with
great
Consideration
both
before
and
at
that
time
.
They
pretend
a
want
of
Circumstances
in
the
execution
,
whereas
Sir
William
Jones
was
advised
with
before
the
Deed
sealed
,
and
present
at
the
time
of
the
sealing
:
Several
other
Circumstances
were
insisted
on
by
the
Plaintiffs
,
but
none
are
sufficient
to
set
aside
the
Deed.
The
Deed
of
1681.
and
the
Will
of
1675.
are
not
inconsistent
,
tho'
they
differ
in
the
limitation
of
the
Estate
:
But
by
both
,
the
greatest
part
of
the
Estate
is
given
to
the
Earl
of
Bathe
.
Tho'
they
could
not
find
Instructions
for
drawing
the
Deed
,
tho'
the
Deed
was
not
found
to
be
read
,
tho'
no
Counterpart
was
sealed
;
yet
none
of
these
by
any
of
the
Presidents
have
either
been
singly
or
altogether
allowed
,
as
Causes
to
set
aside
a
Deed
in
Equity
.
He
was
of
Opinion
that
the
Deed
doth
confirm
the
Will
of
1675.
in
the
setling
and
assuring
the
Estate
,
part
on
the
Dutchess
and
part
on
the
Earl
,
and
as
to
particular
limitations
the
Duke
might
alter
his
Mind
from
the
Will
,
and
do
it
according
to
the
Deed.
The
Third
thing
they
insist
on
by
way
of
Surprize
is
,
That
it
was
done
contrary
to
the
Dukes
Intention
:
Whereas
the
Defendants
have
proved
,
that
it
was
according
to
his
Intention
,
and
the
other
side
say
not
,
neither
before
nor
after
the
making
of
the
Deed
:
For
that
there
were
several
Wills
made
by
Duke
George
,
and
not
a
word
of
any
Limitation
of
any
Estate
to
the
Earl
of
Bathe
.
Which
is
answered
by
the
other
side
,
That
the
Wills
are
in
few
words
,
and
thereby
all
given
to
Duke
Christopher
,
and
not
any
provision
made
for
any
younger
Son
or
Daughter
;
neither
in
these
Wills
,
nor
in
the
Will
of
1675.
is
there
any
thing
given
to
the
Father
of
this
Monck
.
Another
Objection
,
That
the
Duke
never
intended
any
thing
to
Sir
Walter
Clergies
,
for
that
he
was
fallen
into
his
displeasure
,
and
what
is
given
is
a
remote
Remainder
;
but
there
were
Proofs
of
continued
Kindness
to
the
Earl
of
Bathe
.
And
the
greatest
proof
that
there
was
no
Surprize
,
was
the
presence
of
Sir
William
Jones
at
the
execution
of
the
Deed
,
who
was
of
great
Ability
and
Integrity
,
and
would
not
be
guilty
of
a
surprizing
,
and
he
was
satisfied
that
there
was
nothing
but
fair
dealing
in
the
execution
of
the
Deed.
As
to
the
Will
of
1687.
perhaps
it
might
be
intended
,
not
to
give
this
Estate
to
the
Earl
,
and
that
there
was
great
Advice
taken
on
that
Will.
But
what
was
the
meaning
of
the
Duke
in
making
the
Will
of
1687.
if
it
must
signifie
nothing
?
The
truest
Answer
that
hath
been
given
is
,
That
he
Advised
whether
a
Will
would
revoke
the
Deed
,
and
when
he
understood
that
it
would
not
,
but
that
he
had
put
all
out
of
his
power
(
except
by
a
strict
Revocation
,
)
then
he
gratified
the
continued
Importunities
of
his
near
Relations
,
and
endeavours
by
that
to
render
himself
easy
;
so
he
conceived
the
Deed
well
executed
,
and
is
pursuant
to
the
Will
of
1675.
and
cannot
be
set
aside
on
the
point
of
Surprize
.
The
next
point
insisted
on
is
Concealment
,
and
they
insist
on
a
Clause
in
the
Earls
Answer
,
where
the
Duke
sent
for
the
Deed
,
in
Order
to
make
a
new
Settlement
:
The
Will
he
might
have
Revoked
without
the
Deed
;
but
as
the
Plaintiff
saith
,
the
not
doing
of
it
was
a
Concealment
,
and
the
Argument
is
good
,
if
the
fact
were
true
.
But
it
s
not
so
,
for
it
doth
not
appear
,
that
he
ever
intended
to
Revoke
the
Deed
;
and
both
the
Will
of
75.
and
the
Deed
of
81.
were
delivered
into
the
Earls
Hands
,
just
before
the
Duke
went
abroad
,
and
the
Concealment
was
not
from
the
Duke
,
but
the
Dutchess
,
and
the
Presidents
Cited
of
Clare
contra
Com'
Bedford
,
and
Raw
contra
Pott
,
come
not
up
to
this
Case
.
The
next
point
insisted
on
is
Revocation
.
The
Will
of
1687.
(
say
the
Plaintiffs
)
is
a
Revocation
in
Equity
,
though
there
was
not
the
Quality
or
Number
of
Witnesses
described
and
limited
in
the
Proviso
.
It
s
no
Revocation
,
neither
was
it
intended
so
,
the
Duke
wrote
a
Letter
to
the
Earl
,
that
he
had
done
him
no
wrong
,
and
he
left
the
Keys
with
him
,
and
imployed
the
Earl
in
selling
the
Cockpitt
and
Albemarle
House
,
and
the
Duke
continued
in
the
same
mind
to
Mo●ck
,
and
Sir
Walter
Clargies
,
and
there
seemed
no
reason
why
he
should
not
be
of
the
same
mind
as
to
the
Earl
,
and
there
was
a
great
Provision
made
for
the
Dutchess
by
the
Will
and
Deed
,
but
not
a
word
of
Mr.
Monck
in
either
,
but
only
in
this
last
Will
.
Where
there
are
two
voluntary
Conveyances
,
he
that
hath
the
Estate
by
Law
,
shall
hold
it
.
Where
a
Party
shall
be
relieved
,
where
there
is
a
defect
,
they
shall
be
relieved
,
where
there
is
a
defect
,
they
shall
be
relieved
,
where
there
is
a
deceipt
or
falsity
,
and
the
Presidents
are
,
that
they
have
been
relieved
in
such
Cases
,
where
it
is
to
pay
Debts
,
or
to
provide
for
Children
,
several
Presidents
have
been
Cited
,
as
Price
and
Green
,
Ferrers
and
Thannett
,
Webb
and
Webb
,
temp.
Eliz.
Doctor
Hamilton
contra
Maxwellin
,
1655.
Bowman
and
Yates
,
Wallis
and
Coate
contra
Gryme
,
Thwaytes
contra
Deg
,
Arundell
contra
Phillpott
.
As
for
the
Trust
,
nothing
was
said
by
him
of
it
,
for
it
cannot
be
presumed
,
that
there
was
any
Resulting
Trust
,
for
that
was
to
undoe
what
he
had
done
before
.
The
Defendants
are
in
possession
by
a
Verdict
upon
the
Deed
,
and
there
is
no
reason
to
disturbe
them
.
Lord
Chief
Justice
Holt
,
This
Case
depends
on
a
Will
of
1675.
and
a
Deed
of
1681.
and
a
Will
of
1687.
and
the
question
is
,
whether
the
Will
of
1687
,
doth
Revoke
the
Deed
of
1681.
it
being
not
pursuant
to
the
power
:
He
was
of
the
same
Opinion
with
Baron
Powel
,
and
Lord
Chief
Justice
Treby
.
The
Deed
is
a
good
Deed
,
and
so
all
the
Evidences
and
Circumstances
relating
to
the
Deed
,
ought
to
be
taken
to
be
true
(
viz.
)
that
Sir
William
Jones
was
advised
with
in
the
Draught
,
and
was
present
as
a
Witness
,
and
that
the
Will
of
1687.
is
a
good
Will
;
but
not
to
be
relieved
against
the
Deed
of
1681.
which
must
be
taken
to
be
a
good
Deed
,
and
he
reduced
what
he
had
to
say
to
four
Heads
.
1.
Of
the
Frame
and
Manner
of
the
Deed.
2.
Whether
on
the
Evidence
,
the
Deed
were
unduly
obtained
.
3.
Of
the
Circumstances
and
Conditions
of
the
Persons
.
4.
Of
the
Person
of
the
Duke
himself
,
and
the
Circumstances
he
was
in
,
when
he
made
his
Will
of
1687.
for
whether
the
Plaintiffs
shall
be
relieved
against
the
Deed
,
is
the
Question
.
As
to
the
first
,
It
s
said
the
Will
of
75
,
and
the
Deed
,
make
but
one
Conveyance
,
and
that
is
fetcht
from
Law
;
for
at
Law
,
a
Fine
and
Recovery
and
Deed
to
Lead
the
Uses
,
are
but
one
Conveyance
.
So
as
to
the
first
from
the
Contradictions
and
Misrecitals
in
the
Deed
,
which
have
been
insisted
on
,
there
is
no
Cause
to
relieve
against
the
Deed.
As
to
the
second
,
on
the
matter
of
obtaining
the
Deed
,
he
said
,
he
could
not
find
any
undue
obtaining
of
the
Deed
,
but
that
Sir
William
Jones
his
Hand
was
in
the
Proviso
of
the
said
Deed
,
and
that
the
Deed
was
not
executed
by
a
Surprise
,
for
the
Dukes
Councel
was
present
at
the
execution
of
the
Deed
,
and
here
is
no
fraud
to
set
it
aside
.
As
to
the
Case
of
Winn
and
Bodvile
,
which
has
been
Cited
,
there
was
a
great
fraud
and
practise
;
but
there
is
no
fraud
or
circumvention
here
,
but
the
Deed
is
fairly
obtained
,
and
there
is
nothing
but
a
presumptive
Evidence
against
it
,
which
ought
not
in
Equity
,
to
be
an
Evidence
against
the
Deed
,
so
as
there
appears
no
Evidence
,
that
the
Earl
surprized
the
Duke
,
or
that
the
Duke
was
surprized
.
As
to
the
third
point
,
touching
the
Circumstances
and
Conditions
of
the
Persons
.
The
Earl
was
a
near
Relation
,
and
had
done
many
kindnesses
to
the
Duke
,
and
his
Family
,
and
was
especially
intrusted
by
him
;
and
though
the
other
Persons
that
claim
by
the
Will
of
1687.
may
be
of
Relation
to
him
,
yet
he
that
hath
the
best
Title
,
hath
the
right
.
And
so
it
is
in
the
Case
of
Persons
,
where
both
claim
under
two
voluntary
Conveyances
.
As
to
the
fourth
and
last
point
,
touching
the
Circumstances
the
Duke
was
in
,
when
the
Will
was
made
,
the
Duke
when
he
made
the
Will
,
was
under
a
Restraint
by
the
Deed
of
1681.
for
his
power
was
executed
,
and
the
Duke
had
restrained
himself
.
And
the
Court
of
Equity
hath
no
power
to
examine
into
the
Reasons
and
Considerations
for
doing
it
,
and
there
may
be
Reasons
for
a
Wise
Man
to
Restrain
himself
,
for
he
may
not
know
what
surprize
may
be
put
upon
him
;
and
as
there
may
be
reason
for
it
,
so
it
shall
be
presumed
there
was
good
reason
.
Further
,
there
is
no
Evidence
of
an
Intention
in
the
Duke
to
execute
the
power
,
for
he
had
an
opportunity
to
have
done
it
;
and
because
a
Man
may
one
way
dispose
of
his
Estate
,
that
therefore
he
may
do
it
any
way
,
is
strange
;
and
if
that
may
be
done
,
it
will
overthrow
all
the
Conveyances
that
are
made
.
They
on
the
other
side
pretend
,
the
Duke
had
forgotten
the
Deed.
It
was
made
but
in
1681.
and
well
attested
by
Credible
Witnesses
;
and
if
he
had
forgotten
it
,
his
Councel
had
an
Abstract
of
the
Deed
;
and
because
a
Man
had
forgot
a
Deed
,
that
ought
not
to
be
a
cause
in
a
Court
of
Equity
to
set
that
Deed
aside
,
for
Memory
may
fail
,
but
a
Deed
is
Permanent
,
so
there
ought
to
be
no
relief
against
the
Earl
,
and
those
that
claim
by
the
Deed
of
1681.
Lord
Keeper
:
There
be
three
Suits
in
this
Court
,
the
Dutchess
her
first
Eill
is
to
set
aside
the
Deed
of
1681.
And
the
second
Bill
by
the
Moncks
much
to
the
same
effect
,
and
on
the
same
Evidence
.
And
the
third
Bill
by
the
Earl
,
complaining
of
the
Will
of
1687.
On
the
hearing
of
the
Causes
the
8th
day
of
July
1691.
before
the
then
Lords
Commissioners
,
and
on
a
Trial
directed
,
touching
the
Validity
of
the
said
Deed
of
1681.
there
was
a
Verdict
for
the
Deed
,
and
this
Verdict
hath
not
been
stirred
.
The
Cause
comes
now
to
be
heard
on
the
Equity
reserved
on
the
whole
matter
:
I
declare
the
Deed
doth
stand
Unrevoked
at
Law
,
and
the
Defendant
the
Earl
of
Bathe
is
well
intituled
under
that
Deed
,
for
here
are
no
Creditors
nor
Purchasers
,
or
any
Children
to
be
provided
for
,
and
the
benefit
that
comes
to
the
Earl
,
is
the
Essex
and
the
Northern
Estate
.
The
Court
did
declare
,
that
there
is
not
any
sufficient
matter
in
Equity
appears
to
set
aside
the
Deed
,
therefore
dismist
the
Bill
of
the
Earl
of
Mountague
,
and
Christopher
Monk
,
so
far
as
they
seek
relief
to
set
aside
the
said
Deed
of
1681.
and
as
to
the
other
matters
,
Equity
to
be
reserved
.