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
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
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
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
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