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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 4â— 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 iâ— 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 leâ—â— 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
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 Fraâ—â—â—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
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 Meâ—â—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