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
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
to be Re-heard before the Lord Keeper Bridgman who declared He saw no cause to alter the said former Decree and so confirmed it Brabant contra Perne 21 Car. 2. fo 146 344. DEpositions of Witnesses under the Hand of a Six-Clerk then in a Cause between Butt and Perne about Thirty years since the Plaintiff in this Cause prayed the same might be recorded the Record of the Original Depositions in that Cause being lost But the Defendant Pernes's Counsel insisted Copies of Depositions not to be recorded or exemplified it would be of dangerous consequence and president to suffer Copies of Depositions to be Recorded and used as Evidence in case of Title of Land there being no Cause in Court or parties to the said former Suit there being since the dismission of the said former Suit two Trials brought by the said Butt concerning the said things in question upon both which two Nonsuits passed against the said Butts Title the Witnesses which were examined in this Court being all then living and two Verdicts upon full Evidence on both sides and one other Verdict since 1664. hath been found for the Defendant's Title against the now Plaintiffs Title and some of the Witnesses at the said Trial have sworn otherwise than is expressed in those Copies of the Depositions which the Plaintiff would have now recorded and exemplified This Court would not allow the said Copies of the Depositions to be recorded or exemplified but they being before Ordered so to be by the Master of the Rolls it is Ordered they shall be vacated and made void and cancelled and taken off the File Alexander contra Alexander 21 Car. 2 fo 324. THe Suit is Assets to discover the Estate of Richard Alexander deceased which is come to the Defendants hands to satisfy a debt of 300 l. due to the Plaintiff from the said Richard Alexander The Defendant insisted that the Plaintiff ought not to have Relief in this Court in regard the Assets in the Defendants hands were legal Assets and nothing appeared but that the Plaintiff had her proper remedy at Law having not proved any thing more to be in the Defendants hands than was confessed in the Defendant's Answer But the Plaintiff insisted Bill to discover Affets That this Court hath directed Accounts in cases of this nature to avoid circuity of Action and further charge and trouble of Suits and that this Court being possest of the Cause and the parties at Issue on Proofs the same was as proper for this Court as at Common Law This Court ordered Presidents to be searched where this Court hath directed Accounts and given Relief in this Case and the Cause coming to be heard on the Presidents and Merits thereof and the Plaintiffs insisted that there is sufficient Assets of the said Richard Alexander come to the Defendants hands to satisfie the Plaintiffs debt with Overplus This Court decreed the Defendant to come to an Account for the Estate of one Blackhall unadministred Yate contra Hooke 21 Car. 2. fo 939. THat John Hele on the 23d Dec. 1654. Mortgage by demise and re-demise for 2000 l. mortgaged Longs Court and other Lands to Jasper Edwards his Executors Administrators and Assigns for 99 years and the said Edwards on the 25th of Dec. 1654. re-demised the same to the said John Hele for 98 years at a Pepper Corn Rent on Condition That if the said John Hele his Heirs Executors Administrators and Assigns did not pay to the said Jasper Edwards his Executors Administrators and Assigns 2150 l. at a certain day therein mentioned that then the said Re-demise to be void and Covenanted for him his Heirs Executors and Administrators to pay the same accordingly and in Hillary Term 1654. the said John Hele acknowledged a Judgment of 4000 l. to the said Jasper Edwards for the performance of the Covenants in the said Demise and Re-demise and after in 1656. the said John Hele for 500 l. mortgaged the said premisses to Joseph Jackson his Executors Administrators and Assigns reciting the said Mortgage to Jasper Edwards to have and to hold the said premisses to the said Joseph Jackson his Executors Administrators and Assigns for the residue of the said term demised to the said Jasper Edwards and to hold the Reversion to the said Joseph Jackson his Heirs and Assigns for the use of the said Joseph Jackson his Heirs and Assigns for ever on Condition That if the said John Hele his Executors c. paid to the said Jackson his Executors c. 515 l. in June next following then the said Deed of Mortgage to be void and the said John Hele to Re-enter as in his former Estate and the said John Hele Covenanted with the said Jackson his Heirs c. to pay the said 515 l. and for further confirmation granted to the said Jackson all his Equity of Redemption and afterwards the said Edwards and Hele for 2000 l. paid by Jackson to the said Edwards the said Edwards and Hele assigned the said premisses to Jackson with Condition or Proviso That if the said Hele his Heirs or Executors should pay to the said Jackson his Executors c. 2060 l. then the said demise from Hele to Edwards to be void and afterwards in 1657. Edwards assigned the said Judgment of 4000 l. to the said Jackson his Executors c. and the said Hele in 1660. died leaving the said Defendant Sir Thomas Hooke his Nephew and Heir And the said Jackson having made his Will and devised to his Daughter Sarah Wife of the Defendant Alford 2000 l. and to the said Joseph Jackson his Son 2000 l. with his Lands Tenements c. and to the Heirs of his Body and for want of Issue then the one half of his Lands so given to his Daughter Ann Yate and the other half to his Daughter Earle and the Issue of their Bodies equally and that in case his personal Estate fell short then every Legatee to abate in proportion to make it up the one half and the other half his Son Joseph should make good out of what he had bequeathed to him and made the Defendants Yate Earle and Aldworth Executors and if his Estate should amount to more than he had bestowed then that the said Joseph and Sarah should have the one half of it and his Son Yate and his Wife and his Son Earle and his Wife and what Child he should have living at his decease the other half Afterwards the said Joseph Jackson having in his Account accompted the said Mortgage Mony as part of his personal Estate in 1661 died leaving the said Joseph Jackson his Heir that no Entry had been made either by the Testator in his life time or by the said Joseph his Son and Heir upon the said mortgaged premisses but the said John Hele and Sir Thomas Hooke had received all the Rents and Profits So as the Question was Whether the said Mortgage Moneys are due and payable to the Heir or Executor
of the said Testator Joseph Jackson This Court upon reading the said Deeds and Will Mortgage-Mony payable to the Executor and not to the Heir by several good circumstances in the Conveyances conceived that there was no question in the Case but that the said several Sums of 2000 l. and 500 l. being the Mortgage-mony ought to go not to the Heir but to the Executors and to be accounted part of the Testators personal Estate he having by his Will given his real Estate by Name to his Heir besides his Portion of 2000 l. and one 4th part of the Overplus of his personal Estate the rather for that it was not in the power of the Heir to discharge the Judgment or the Mortgage and the Moneys by the several Provisoes being made payable to the Executor and not to the Heir and the Original Mortgage being but for years though altered by Act in Law and the Testator having by Will charged the Lands devised to his Heir to supply the deficiency if the personal Estate should not be sufficient Whereas if he had not taken the Mortgages to be part of his personal Estate he would have supplied the same out of the Mortgages and decreed Sir Thomas Hooke to Redeem and he pay the Plaintiffs the Executors the Mortgage-Mony with Interest Tolson contra Lamplugh 21 Car. 2. fo 786. THe Plaintiff prays liberty to make use of Depositions taken in a former Cause wherein Henry Tolson Depositions taken in a former Cause made use of the Plaintiffs late Father deceased was Plaintiff against Abraham Molline and his Wife and Mr. Winstanley Defendants The Defendant Lamplugh insisted That there is no colour or ground for the using the said Depositions taken in the Cause wherein the said Henry Tolson was Plaintiff at the Trial directed those Depositions being taken in a Cause whereto neither of the Defendants the Lamplugh's are parties and there is more difference of the Title between the Defendants the Lamplugh's and Mr. Moline and Winstanley than between the said Lamplugh and the Plaintiff Tolson The Plaintiff Tolson insisted That the Defendants the Lamplugh's claimed and derived their Title under Mr. Moline and his Wife and Winstanley and so the said Depositions ought to be used at the Trial which the Defendant denied This Court declared That the Depositions in the said former Cause ought to be used against the now Defendants the Lamplugh's unless they claim under the said former Defendants but if they do then the said former Depositions ought to be admitted as Evidence against them Hunton contra Davies 22 Car. 2. fo 386. THE Bill is for 500 l. Remainder of 2900 l. which Mr. Hugh Ordley was to pay for the purchase of Land to the Plaintiffs Father which 500 l. was decreed to be paid to one Castle in 1637. for the use of the Plaintiff which 500 l. and Interest comes to 1184 l. and to have the Defendants the purchasors of the Land to pay it To which Bill the Defendants Bill for Remainder of purchase-Mony Defendant pleads it is 33 years since and never any Suit for it but the Land enjoyed and former parties concerned dead per Cur ' a good Plea the Executors of Ordley pleaded That Mr. Ordley lived in London till 1662. and the Plaintiff might have had remedy against him and it being a debt 33 years since and no Suit commenced against Ordely in his life time nor any till now and the Lands enjoyed by others now and the Defendants the Executors have nothing to shew for the payment and Case and all former parties concerned therein being dead and therefore after all this time the Defendants hope this Court will not suppose that the said Mony is unpaid or that the Defendants ought to be charged therewith and the Defendants being Executors and Strangerr to all the Matters aforesaid This Court held the Plea and Demurrer good Malpas contra Vernon 22 Car. 2. fo 360. A Bill of Review Bill of Review to Reverse a Decree whereby the Plaintiff is decreed to pay more Mony than by his Agreement on his Purchase he was to pay This Court declared That without a special Agreement at the time of the purchase for payment of the debt claimed by the Defendant the Plaintiff ought not to be oblig'd by the Decree to pay the Defendants no such Agreement appearing by the Decree or any Proof offered at the Hearing The Defendant insisted That by the Proofs there is an Agreement proved whereby the Defendant amongst other Creditors was to be satisfied his debt Now the Point being No new Proofs admitted upon a Bill of Review upon a second Agreement whether any special Agreement was made for the purpose aforesaid and the Court had declared no new Proofs could be admitted in the Cause this Court Ordered by consent That the Cause be heard on the said point of Agreement on the old Proofs and no other Comes Castle-Haven contra Vnderhill 22 Car. 2. fo 106. THis is a Bill of Review Bill of Review to Reverse a Decree in 12 Car. 1. wherein the now Defendant was Plaintiff against the Lady Vice Countess of St. Albons his Wife and others Defendants The points of Error were That the Decree was grounded on a Bill exhibited by the now Defendant against the said Lady St. Albons his then Wife and was made by Consent without any Judicial Hearing whereby a Settlement and disposition of the said Ladies Lands whereof she had an Estate in Fee was made without any Fine or Recovery levied or suffered or any other legal Act done to bar and bind her or her Inheritance which the said Plaintiff conceives could not be done the said Lady being a Feme Covert and could not in Law or Equity consent nor could her Trustees by her consent charge the Inheritance wherein they had no legal Assurance The now Defendants insist That 2 Car. 1. the said Lady St. Albons after her Intermarriage with the now Defendant did settle 300 l. per Annum and several Recoveries were suffered whereby the same would have come to the Defendant after the said Ladies death as an Estate in Fee the said Lady dying without Issue That afterwards the said Lady and the Defendant came to another Agreement viz. That the Defendant should have 400 l. per Annum out of the said Ladies Estate to him and his Assigns for life and in consideration thereof the said Defendant agreed to quit and debar himself of and from all claim and interest to any of the rest of the said Ladies Estate real or personal during their joynt Lives or after her death and in case of failure of payment or the said Ladies death the Defendant was to enter into all the Estate for Satisfaction which said 400 l. per Annum was setled by Deed Tripartite 14 Car. 1. and the said Agreement and Settlement was confirmed by a Decree 17 Car. 1. by the consent of all parties and that the said Lady by Will gave away
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
or their Testator could not come sooner than when the Title was cleared Mean profits Decreed tho' a long time since and the Objection raised from the shortness of the former decree is not material to prejudice the Plaintiffs demand for that there could not then be any decree for profits the said Sir James pretending Title as Tenant in Tail Account for the mean profits from the time the right accrewed and that Sir Thomas was but Tenant for life so now the Right being cleared the Plaintiff ought to have an account of the mean profits from the time the Right accrewed and decreed accordingly The Defendant Appealing from the said Decree made by the Lord Chancellor Finch to the Lord Keeper North the Case was heard ab integro and the Lord Keeper on hearing the decree in 1650. and the decree of the Lord Finch read declared that there was nothing in the case but the loss of time and though the Decree in 1650. The mean profits tho' omitted in a former decree decreed now was silent as to the mean profits yet the same ought to be no Objection to the Right and though it was omitted by the Decree in 1650. yet it ought in Justice to have been decreed for the mean profits as well as for the right of the Title it being an accessary to the decree and it ought to be judged nunc pro tunc there being no Bar against it and confirmed the Decree made by the Lord Finch Girling contra Dom ' Lowther al' 34 Car. 2. fo 148. THat Sir Thomas Leigh deceased late Father of the Defendants John Thomas and Woolley Leigh became indebted to Edmond Girling deceased in several Sums of mony by Bonds and the said Girling became bound for the said Sir Thomas for several great Sums of mony against which Securities Sir Thomas gave the said Girling Counterbonds and in Hillary Term 28 Car. 2. Sir Thomas gave a Judgment of 1000 l. to the said Girling for the payment of 530 l. and in Aug. 1669. Sir Thomas made his last Will in writing and thereby devised to the Defendants Sir John Lowther John Currance and Edward Badby Executors of his said Will several Lands Lands and Tenements for the payment of his debts and to be by them sold for that purpose That the Swan Inn in St. Martins Lane being sold there ariseth a Question touching the Mony raised by such Sale whether it were well applied or not The Case being viz. That Sir Thomas Leigh upon his Marriage with Hannah Relfe Daughter of Anthony Relfe whilst he was under Age by Articles previous to the said Marriage with the said Hannah agreed to settle on himself and the said Hanuah his intended Wife and such as they should have between them Lands of 700 l. and in Consideration thereof the said Anthony Relfe was to settle and did settle upon the said Thomas and his Heirs Lands of 200 l. per Annum whereupon Sir Thomas Leigh July 1661. makes a Settlement upon himself and the said Hannah his intended Wife and their first second and other Sons in Tail his Mannor of Addington and other Lands in Addington and several Lands in Com' Surrey and Keut That afterwards in May 1665. Sir Thomas Leigh mortgaged to Mr. Peck for 2000 l. several Lands in Middlesex and Norfolk and afterwards in December 1665. those Lands and the moiety of the Swan Inn in St. Martins and the Reversion thereof were granted to Trustees upon several Trusts which by Deed 15 June 1668. appears to be performed and satisfied and thereupon on the same 15 June 1668. the said premisses were mortgaged to Sir John Lowther for 2500 l. which 2500 l. was raised and paid to Sir John Lowther out of the profits and by sale of the said Swan Inn which was formerly by voluntary Conveyance dated and setled by the said Sir Thomas Leigh upon the two Defendants Thomas and Woolley Leigh for Natural love and affection Voluntary Settlement That Sir John Lowther in April 1679. assigned the said Mortgage by conveying to one Burton and others the Mannor of Thorpe in Surrey and Shoelands and other premisses in Trust for the payment of such of the debts of Sir Thomas Leigh as should any ways incumber or disturb the Purchaser of the Swan Inn which said Lands are sufficient to pay the Plaintiffs debts and the Testators Ingagement being 1331 l. which debt is to be paid the Plaintiff by Decree of this Court The Defendants the Leighs insist That the Mony raised by the sale of the Swan Inn although paid to redeem the other Estate in mortgage to Sir John Lowther ought not to be applied so that the Land ought to be discharged of the Mortgage-mony or of what was paid to redeem the same but the said Lands ought still to be a Security for the said Mony to the use of the younger Children for whose benefit the said Swan Inn was setled and although the said Settlement was voluntary yet the same being a provision for younger Children ought not to be adjudged fraudulent as to a subsequent Judgment which the Paintiffs is or however not as to a subsequent voluntary Devise of their Father under which only the Creditors by Bond come in and therefore as to them the said mortgaged Lands ought to be charged with the said Mony raised by the sale of the said Swan Inn with Interest since it was paid to redeem the said Estate precedent to any benefit any Creditor by Bond can have out of the said Lands This Court declared Voluntary Conveyance though a provision for younger Children not to prevent satisfaction of subsequent Judgments That the said voluntary Conveyance ought not to stand in the way to prevent satisfaction of a subsequent Judgment for good Considerations and that the Monies due on the Plaintiffs Judgment and the Monies raised by sale of the Swan Inn was well applied to discharge the Mortgage on the other Estate whereby the mony due on the Judgment with Interest may be the more speedily raised by sale thereof and the mony raised by sale of the said Inn after the Judgment satisfied with Interest ought to stand secur'd for the benefit of the younger Children Mony applied to take off Mortgages satisfie Judgments and after to pay Bond-Creditors and be raised by sale of the said Estate and by Rents and Profits in the mean time precedent to the other Creditors not on Judgment and after the said Judgment and provision for the younger Children satisfied the residue to be applied to the other Creditors and decreed accordingly Comes Arglas contra Henry Muschamp 35 Car. 2. fo 524. THat Thomas Relief against over-reaching Bargains first Earl of Arglas the now Plaintiffs Father and William Earl of Arglas the Plaintiffs Brother were seised in Fee of the premisses in question and made divers Settlements thereof by which in case of failure of Issue Male of the said William the said Estate should come to
did intermarry with Sir John Lloyd in the Doctors life time with his consent who upon a Settlement made on the said Mary was to have 2000 l. Portion 1500 l. whereof was to be laid out in Lands for increase of Marys Joynture and that she had Issue by him the Plaintiff Ann. That Sir John Lloyd died and the said Dame Mary intermarryed with one Hutchinson without the consent good likeing or privity of the said Doctor Smalwood her Father That in 1683 the said Doctor Smalwood died having by his Will in 1683 made the Defendant James Smalwod and others Executors and thereby devised and settled his Estate real and personal viz. according to his Settlement formerly made he gave his said Daughter Dame Mary all his Lands during her life if his Executor should so think sit and in case they should not to his Granchild Ann Love and in case of failure to his Grandchild Theophania Hutchinson during her life and in case of failure to his Nephew the Defendant James Smalwood for ever And his personal Estate as Mony Books Plate c. to be divided amongst his said Daughters Grandchildren and Nephew James Smalwood at the discretion of his Executors so to have the said 1500 l. which rested in Dr. Smalwoods Hands being part of the 2000 l. Portion Covenanted by Dr. Smalwood to be laid out in Lands by the said Doctor for increase of Mary's Joynture aforesaid to be laid out according to the Doctors Covenants and to have the benefit of the said Settlement in 1672 is the Plaintiff Bill The Defendant James Smalwood pleads and claims a right to the Estate of Doctor Smalwood by his Will and by the said Deed of 1672 the said Dame Mary having by her Marriage with the said Hutchinson in the Doctors life time without his privity or consent broke the Condition by which she was to have enjoyed the Lands in that Settlement and prays the Judgment of this Court the Estate being limited to him as aforesaid And he further pleads and insists That Dame Mary ought not to have any discovery of the Writings of the Doctors Estate because he the said James Smalwood and the other Defendant Woodroff have not yet consented that she should have any part of the Doctors Estate which power was given them by the Doctors Will as aforesaid and whether he and the other Defendant ought to consent as aforesaid submits to this Court But the Plaintiffs insist Lands setled on a Daughter provided she Marry by consent and she Marries by consent after she Marries a second Husband without consent this second Marriage is no breach of the proviso That they admit such proviso in the Deed of 1672 that in case the said Dame Mary should Marry in the life time of the Doctor without his privity consent and liking then all and every the Limitations therein should cease and be void But insist That the Marriage between Sir John Lloyd and Dame Mary was concluded by the Doctor himself as appears by the said Articles and that they married with the Doctors good liking privity and consent according to the said Condition and insist That Dame Mary's second Marriage with Hutchinson was not without the consent privity and good liking of the said Doctor and insist also that the said proviso by Dame Marys first Marriage was fully performed and the Estates in and by the said Settlement granted absolutely vested according to the Limitation declared and contained so as the said second Marriage of Dame Mary with the said Hutchinson if it had been without such consent could not have divested the same and therein crave the Judgment of this Court The Court declared That the first Marriage of Dame Mary being by her Fathers consent her second Marriage though it had been without his consent could be no breach of the Proviso or Conditon in the first Settlement and decreed the Defendants the Executors of Doctor Smalwood to account for all the personal Estate of the said Doctor Monies decreed to be laid out in Land according to Marriage Agreement and the Rents and profits of the real Estate and if personal Estate sufficient after debts to pay the 1500 l. then they are to pay the same to the Trustees which they are to lay out in a purchase of Lands according to the Deed of the 18 Aug. 1683. Com' Winchelsey al' contra Dom ' Norcloffe al' 1 Jac. 2. fo 1026. THat Katherine Act of Parliament for the Settlement of Intestates Estates late Countess of Winchelsey the Plaintiff the Earls late Wife had three Husbands Successively viz. Lister her first Husband by whom she had Issue the Defendant Christopher Lister Sir John Wentworth her second Husband by whom she had Issue Thomas Wentworth since deceased and the Defendant John Wentworth and the Plaintiff the Earl her third Husband by whom she had Issue the said Lady Catherine and the Plaintiff the Lady Elizabeth That the said Wentworth had a Real Estate by discent from his Father out of which after his Fathers death there was payable to or to the use of the said Thomas several Sums of money for Rents Fines and Profits That in 1684. the said Thomas died Intestate leaving no Wife or Child but leaving the Defendant Christopher Lister John Wentworth the Lady Katherine and the Plaintiff the Lady Elizabeth his Brothers and Sisters who being the next of Kin in equal degree his Mother the said Countess dying in his lifetime they by Virtue of the late Act of Parliament for selling Intestate Estates became Intituled to the surplus of the said Thomas his Personal Estate to be equally distributed and divided amongst them viz. to each of them a fourth part thereof that before any Distribution made the Lady Katherine died Intestate and Administration of her Estate was granted to the Plaintiff the Earl her Father who by Virtue thereof and of the said Act of Parliament ought to have the said Lady Katherines fourth part of the said Personal Estate of the said Thomas Wentworth her Brother and the Plaintiff the Lady Elizabeth ought to have another fourth part but the Defendants pretend that part of the said Thomas his Personal Estate was in his Life-time Invested in the purchase of Lands which were Conveyed to him and his Heirs and ought to Discend to the said John Wentworth as his Brother and Heir and the said money ought to be accounted as part of his Personal Estate whereas if any such Purchase were made the same were without his Consent and during his Minority when he had no power to direct the laying out thereof and the Lands in Equity ought to be accounted part of his personal Estate of which the Plaintiff seeks to have their shares The Defendants insist That the Defendant John Wentworth only was of the whole Blood the rest being but of the half blood to him only and leaving the Defendant Dame Dorothy his Grandmother by the Mothers side viz. Mother of the said
Rent-charge devised in lieu of a Joynture and by the same Will an implicit Devise of Lands to her Decreed she shall have only the 200 l. per Annum 64 Parol Declaration of ones Intent not good against a Declaration in Writing 78 Deed tho' Cancelled yet good 100 Demurrer to a Bill of Discovery whether the Defendant be married or not good for that if she be married it s a forfeiture of the Estate 68 Bill to discover Settlements in Trust Plea That the Defendant was a Scrivener and had taken Oath not to discover the Secrets of his Clients Overruled 29 E DEfendant in what cases not to be Examined upon Interrogatories 16 Estate Personal Trustees lay out the the Monies of an Infant to purchase Lands in Fee this shall be abcounted part of his Personal Estate he dying a Minor 377 Personal Estate not specifically devised to be applied to the payment of Debts and the Real Estate not subject thereto 383 Remainder of a Personal Estate devised after Issue to J. S. a void Remainder 66 Articles of a Purchase and 600 l. paid Contractor dies before any Conveyance executed it was accounted part of his Personal Estate 139 F FOreign Attachment London 109 Fraudulent Deed or not 33 A Widow makes a Deed of her former Husbands Estate and marries the second Husband not privy to it the Deed set aside and the second Husband to enjoy the Estate 1 G GVardian takes Bond in his own name for Arrears of Rent by this the Guardian hath made it his own debt 97 H A Residue of a Term after Debts paid and a Life determined decreed not to the residuary Legatee but the Heir 296 No Re-hearing after a Decree Signed and Inrolled 361 The Heir relieved against a Contingent Contract made in his Fathers life time because it seemed unconscionable Marriage Agreement to have Mony laid out in Lands for a Joynture to such Vses 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 400 Portion devised upon a Contingency of dying or Marriage decreed to be paid into Court for the benefit of the Heir if the Devisees dye 150 Persons by Habeas-corpus brought to Bristol and turned over to the Fleet for that he was in Contempt 151 I. THe certain profits of the premisses set against the Interest Interest upon Interest decreed 82 286 Where there is no Contingency of Survivorship but the Interest presently vests 133 Plaintff not relieved against a Judgment entred into 60 years ago and no consideration proved 54 From what time of the entring Judgment to be accounted 90 Examination of the actual entry of a Judgment in Chancery to what purpose 91 Judgments to Attach Lands according to the Priority of Originals 148 K. THe Kings Officer previledged from Parish Offices tho' he drive a Trade in the Parish 197 L. OF Leases to attend the Inheritance 233 243 273 Legacy vid. Wills Difference between a Legacy and a Trust 288 Who are Servants capable to receive Legacies by the general words to all my Servants c. Legacies to Poor Kindred how far to be Extended 395 Estate decreed to the residuary Legatee and not to the Administrator 100 Legacies given by a Will and a Codicil are distinct and not the same 74 Land Legatees and Mony Legatees decreed to abate in proportion 155 Legacy to be paid at 16 Legatee dies before her Administrator shall not receive it till the 16 years end 191 Legatee dies before payment of his Legacy yet payable to his next of Kin 98 Legacies devised to such who shall be his Servants at the time of his death who shall be said to be such Servants 101 Two Legatees and if either dye then to the Survivor one dies in the life of the Testator the Survivor shall have all 188 What Amounts to an Assent to a Legacy 250 Difference between a Lease which is to commence after failure of payment and a Mortgage with a Condition subsequent 54 Limitation of a Trust for the Heirs Males void and the benefit of the Trust belongs to the Executor 58 Defect of Livery and Seision aided in Chancery 250 M BIll to enforce the Lord of a Mannor to receive a Petition in nature of a Writ of false Judgment to reverse a common Recovery demurred to and the Demurrer allowed 387 Of Marriages by consent 24 95 366 Marriage Agreement provided if the Wife claims any of the personal Estate by the Custom of the Province of York then the Estate to go to other uses decreed she is bound by the said Settlement and ought not to claim any part of the personal Estate 251 Mean profits decreed tho' a long time since the mean profits tho' omitted in a former Decree yet decreed in a Later 261 The prior Mortgagee upon redemption by the second Mortgagee shall be charged with the profits by whomsoever received after the second Mortgage 209 Mortgage for 2000 l. before which time the Mortgagor borrowed of him that was afterwards Mortgagee 300 l. which was agreed should be secured by the said Mortgage both sums must be paid upon the Redemption 247 Whether Mortgage Mony to be paid by the Administrator in relief of the Heir and when not 274 275 The Plaintiff decreed to pay off a Bond of 50 l. as well as the Mortgage Mony upon Redemption 361 Creditors on Judgments and Bonds decreed to redeem Mortgages 396 Mortgage Mony to whom payable to the Heir or Executor who shall have the Equity of Redemption 42 140 143 155 Rent charge in Fee Mortgaged is devised then the Mony is paid the Administrator shall have it and not the Heir 162 An Ancient Recognizance not set aside to let in a Mortgage 106 Adventure in the East India Company Mortgaged is Redeemable 108 Purchase Mony Bill for the 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 a good Plea 44 N. NE exeat Regnum 19 And the Causes of it 20 Laymen to find Security as well as Clergy-men upon a Ne exeat Regnum 20 O THE unadvanced Children by the Custom of London to bring in what they had received into Hocpoch with the Orphanage thirds after the Estate is divided into thirds and not with the whole Estate 360 Executor decreed to pay in Orphans Mony into the Hand of W. B. c. 12 What Declaration in writing of a Freeman will let in his Child to have a Customary part 183 What Mony is deposited by the Father to Purchase Lands in persuance of Marriage Articls is to be taken as Real and not as personal Estate and shall not be brought into Hochpoch vid. 50 92 Title under an Occupant demurred to 112 P INformation by English Bill proper to relieve against a Patent granted by Surprize 357 Patent not reversable by Scire facias ib. Of Perpetuities