and that this differs from ordinary Mortgages the Lease being to commence after failure of Payment by the Heirs Executors or Administrators of the said Alexander and there was no Proviso therein and that the said Lady Ann in all probability hath paid many Hundreds of Pounds and Elizabeth might have lived many years longer and tho' the Lady Ann had paid treble the value yet she must have been contented with her Security and the said Robert Brett did not think the same worth Redeeming and tho' the Reversion in Fee was Extended in 1646 yet the said Robert Brett and the Defendant Ewens continued possession till Judgment on the Writ of Partition and from thence till 1662. which was 20 years after the Plaintiffs Judgment and the Lady Ann was to continue possession till the Children attained 21 years of Age which was in 1636. when the said demise to them made did commence This Court being assisted with the Judges were of Opinion and declared themselves fully satisfied That the Plaintiff ought not to have any Relief against the Defendants but that the Bill ought to be dismissed for that his Lordship doth take a difference betwixt the Lease which is to commence after failure of Payment and a Mortgage with a Condition subsequent Difference betwixt a Lease which is to commence after failure of Payment and a Mortgage with a Condition subsequent and the rather in this case for that the breach was in the failure of payment of 250 l. per Annum which the said Lady was thereby obliged to pay for a young Life and so might have been paid for many years and if it had been paid in the Casualty for 20 years the Heirs would never have redeemed it and therefore no Reason why the Plaintiff should take advantage thereof and also the Agreemant before mentioned between the said Dame Ann and Kirkham weighed much in this Court to which Agreement Robert the Heir by his Enjoying of the premisses so assigned together with the Defendant Ewens and his Wife after he came of Age consented and there was no disturbance during the Tenancy in Common as to the Right but to as perception of Profits only and the Heir permitting the Defendant Ewens and his Wife to have Judgment on the Writ of Partition was a Consent of the whole Redemption after a long time and in this Consent it is not the Heir but a Stranger who seeks to redeem and no man that puts himself after so long a time into a condition to redeem Plaintiff not relieved upon a Judgment entred into 60 years ago and no Consideration proved shall have any Relief here and it is the stronger against the Plaintiff that no Consideration is proved for the said Judgment which was entred into so long since as the Year 1640 and after 60 years this Court will not relieve the Plaintiff but dismiss the Bill Boulter contra Chester al' 22 Car. 2. fo 60. THe Question being Bail Whether the Plaintiff Boulter who was a Surety for one Ree should pay any more than the Sum of 40 l. for which he was Bail for the Appearance of one Roger Ree at the Defendants Suit the Ac etiam Bill being only for 40 l. whenas the Defendant demands 55 l. for a years Rent for the premisses and 10 l. damages for want of Repair of the premisses besides Costs and would fix the same on the Plaintiffs the Bail but the main Question being Whether the Bail ought to answer or pay any more than what was exprest in the Writ which is 40 l. Bail to answer no more than what is exprest in the Ac etiam Bill or whether he ought to answer or pay what might have been recovered in case the said Ree for whom the Plaintiff was Bail had appeared and defended the Action This Court conceived that the Desendant Stretton ought to have no more than what was expressed in the Writ and Ac etiam Bill for which the Plaintiff was only bail but his Costs in the same already taxed at Law and by the Master and ordered the same accordingly Floyer contra Hedgingham 21 Car. 2. fo 809. THat no Copyholder ought to be admitted to any Copyhold Estate by Letter of Attorney Copyholder not to be admitted by Letter of Attorney for that he ought to do Fealty at the time of his admittance which cannot be done by an Attorney but ought to be done in person by reason that no man can swear by Attorney Hunt contra Jones 22 Car. 2. THe Bill is That the Defendant Jones who is the surviving Trustee may assign and convey all his Interest and Estate in Brockley in Com Worcester to the Plaintiff Limitation of a Lease the said Plaintiff Intituling her self thereto as Administratrix to Edward Palmer the Plaintiff setting forth by the Bill That Edmund late Bishop of Worcester did by two Indentures of 30 31 Eliz. demise the premisses to the late Queen and her Assignee during the several Terms and Rent therein expressed that the several Estates Terms and Interests being come and vested in the said Edward Palmer for the Remainder thereof he the said Palmer by Deedin 1652 in Consideration of a Marriage then to be had between him and the Plaintiff Mary assigns the said premisses unto Giles Palmer and the Defendant Jones and their Executors for the residue of the said Terms upon Trust to permit Elizabeth Palmer Mother of the said Edward to enjoy the said premisses for life and then to the said Edward for his life and after their Lives then to the Plaintiff Mary for her life and after their deceases then to heirs Males of the Body of the said Edward Palmer and the Plaintiff Mary and for default of such Issue then upon Trust for the right Heirs of the said Edward to their own use benefit and dispose as by the said Deed c. That the said Edward and Elizabeth Palmer being dead Letters of Administration were granted to the Plaintiff Mary by virtue whereof she is well Intituled to the said premisses and to the trust and benefit thereof for the Remainders of the said Terms to come and that the Defendant Jones as the surviving Trustee ought to assign to the Plaintiff and the Plaintiff insists that all the Remainders after her death are void in Law and Equity The Defendant Jones insists That the Trust extends to the Child or Children of the said Edward Palmer and the Defendant Elizabeth Palmer an Infant being his Daughter she may question him for the same in case he should Assign as aforesaid and prays the Court will take care for the Infants But the Plaintiff insisting That both in the cases of Executors and Administrators the Point hath been frequently Adjudged Limitation of a Term in Trust for heirs Males c. void in Law and the Limitation to the heirs Male or heir General being a void Limitation in Law where there is no Executor the Trust shall come
of his Real Estate on Trustees and thereby made a provision for the Maintenance of William the younger during his Minority and therefore they opposed the Plaintiff Frances getting Administration of William the Elder The said Plaintiff Frances Whitmore insisted That by the Will of William the Elder there was no joynt devise made to the said William the Son and the Issue Male and Female of the Sisters of William the Father but a several devise to William the Son with Remainder to the Sisters Issue and that the said William the Son having an Interest vested in him by the Will of his Father and being 18 years Old when he died and he having then a power to have proved his Fathers Will the Earls Executorship during his Minority being determined might have spent or given away the said Estate in his life-time he might surely give away the same by his Will which he having done to the Plaintiff Frances she is thereby well Intituled to the same and that the remainder over to Issue Male and Female of the Sisters the Estate being purely personal is absolutely void This Court hearing several Presidents quoted Devisee Infant lived to 18 years and makes his Will and Executors and dies the Executor shall have the Legacy for that an Interest was vested in the Infant declared That by the Will of the Father there was an Interest vested in William the Son and the remainder over to the Issue Male and Female of the Sisters of William the Elder was void and that William the Son living to 18 years and making his Will as aforesaid and the Plaintiff Frances his Executrix she is thereby well intituled to the surplus of the said personal Estate and decreed the same accordingly Whitlock contra Marriot 1 Jac. 2. fo 700. THis Case being upon a Scandalous Answer Defendant ordered to pay the Plaintiff 100 I for putting in a Scandalous Answer His Lordship declared the said Answer to be very Scandalous and Impertinent and that the expressions taken by the Defendant to the Masters Report were not only more scandalous but also Malicious and that it appearing that Ryley the Defendants Solicitor had put Mr. Lynn a Councellors Hand to the Exceptions without his Knowledge This Court Ordered the said Ryley to be taken into Custody of the Messenger and declared the Answer and Exceptions were not pertinent to the Cause but meerly to defame the Plaintiff His Lordship Ordered the Defendant Marriot to pay to the Plaintiff 100 l. for his Reparation and Costs for the abuse and scandal aforesaid and the said Ryley to pay 20 l. and to stand committed to the Prison of the Fleet till payment thereof be made Ash contra Rogle and the Dean and Chapter of St. Pauls 1 Jac. 2. fo 154. THis Case is upon a Demurrer Bill to enforce the Lord of a Mannour to receive a Petition in nature of a Writ of false Judgment to Reverse a common Recovery demurred to and the demurrer allowed the Plaintiffs Bill is to inforce the Defendant the Lord of the Mannour of Barnes in Surrey to receive the Plaintiffs Petition or Bill in the Nature of a Writ of false Judgment to Reverse a Common Recovery suffered of some Copyhold Lands in the Mannour by Susan Râ—gle Widow which the Defendant Râ—gle holds under the said Recovery the Bill setting forth that Katherine Ferrers by the Will of her Husband or by some other good Conveyance was seized in Fee of Free and Copyhold Lands in Barnes formerly her said Husbands in Trust to Convey 200 l. a year thereof upon William Ferrers her Eldest Son and the said Susan his then Wife and Heirs Males of the Body of William Remainder in Tail to Thomas Ferrers the Plaintiffs Father second Son of Katherine and the Heirs of his Body Edward being obliged by Articles upon Susans Marriage with his Son William to settle Lands of that value on Susan for her Joynture That Katherine on that Trust in 1642. surrendred the premisses to the value of 100 l. per Annum to the use of the said William and Susan and the Heirs of their two Bodies begotten remainder to the Right Heirs of William which was a Breach of the Trust in Katherine in limiting an Estate Tail to Susan when it should have been but an Estate for life That William died before the Admittance leaving Issue only his Son William and in 1652. Susan surrendred to one Mitchell against whom the Common Recovery in question was then obtained wherein one Walter was Demandant the said Mitchell Tenant and Susan Vouchee to the use of her self the said Susan for life the Remainder to William Ferrers and the Heirs of his Body the Remainder to the Right Heirs of the Survivor of them the said Susan and William her Son That William the Son died soon after and Susan died in 1684. and the Plaintiffs Father Thomas being dead without Issue Male in case the Common Recovery had not been suffered the premisses would have come to the Plaintiff being the youngest Daughter to her Father as Couzen and Heir both of William Ferrers the Father and William the Son the premisses being Burrough-English and so the Plaintiff was well Intituled to prosecute the Lord of the Mannour in the Nature of a Writ of False Judgment to Reverse the said Recovery wherein there are manifest Errors and Defaults but the said Lord refuses to receive the said Petition and combine with the Defendant Rogle who is Son and Heir of the said Susan by a second Husband who pretends that his Mother Susan surviving her Son William Ferrers the premisses are discended to him by virtue of the use of the said Recovery limited to the Right Heirs of the Survivor of Susan and her Son William so the Plaintiffs Bill is to examine the defects of the said Recovery The Defendants demur for that the Relief sought by the Bill is of a strange and unpresidented Nature being to avoid and reverse a Common Recovery had in the said Mannour 30 years ago and that upon a bare Suggestion generally that the Recovery is erroneous without instancing wherein which may be said in any case The Master of the Rolls declared That as that part of the Bill which seeks to impeach or reverse the said Recovery for any errours or defects therein or compel the said Lord to receive any Petition for reversal thereof or any ways to impeach the same his Honour declared That this Court being the proper Court to supply the defects in Common Assurances and rather to support than to assist the avoiding or defeating of them and there being no presidents of such a Bill as this is he thought not fit to admit of this nor to introduce so dangerous a president whereby a multitude of Settlements and Estates depending on Common Recoveries suffered in Copyhold Courts for valuable Considerations would be avoided and defeated through the negligence or unskilfulness of Clerks and therefore conceived the said Common Recovery ought
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
from this Defendant all her Lands and personal Estate which the Defendant had given her power to do and she died and for Non-payment of the said 400 l. per Annum the Defendant entred upon the Lands liable to the payment thereof and the Defendant hopes the said Decree shall not be Reversed The Plaintiff insists That the Title in Law in the Ladies Estate was in Trustees before her Marriage with the Defendant and so agreed to be continued without his intermedling therewith he bringing no Additional Estate to the said Lady and that there was no Fine levied to the Trustees or otherwise of her Estate of Inheritance Revocation of Uses and that the Uses upon the Recoveries were with power of Revocation in the Lady alone and that pursuant to such power by Deed 14 Car. 1. she Revoked the same and setled the same in Trust for such persons and their Heirs as she by her Will should appoint and that the said Tripartite Indenture and Decree did not discharge the Trust nor take notice of the Recoveries and that the said Lady in 1659. did appoint that her Trustees upon the said Recoveries shall convey part of her Land to the Plaintiff Solmes's Father and the Plaintiff Terrell and the rest to her Heir at Law and that in 1650. the said Land came first to be charged which was after the Ladies death and presently after there appeared Infancies which was the reason the said Decree was not sooner impeach'd This Court being assisted with the Judges Bill of Review dismist for that its a long time since the Decree was made and the Plaintiffs rested under it without any Complaint taking into Consideration the length of Time since the Decree was made and how long they were resting under it without any Complaint and that the Heirs have a benefit by the Ladies separate power of disposing who disposed accordingly by her Will. This Court with the Judges declared and are of Opinion that the said Decree grounded on the Tripartite Indenture 14 Car. 1. was and is a good Decree and ought to be performed and dismissed the Bill of Review White cont Ewens al' 22 Car. 2. fo 237. THis is upon an Appeal from a Decree Appeal from a Decree the Case being That Dame Ann Brett Relict of Sir Alex. Brett having a Joynture in the Manors and Lands of Whitstanton and Alexander her Son having on the Marriage with Elizabeth the Daughter of Sir William Kirkham agreed to settle 250 l. per Annum Joynture on the said Elizabeth but being disabled to do it by reason of Dame Anns Joynture he being seised only of 120 l. per Annum in Whitland and the Reversion of Yarkcombe the said Alexander agreed with the said Dame Ann That his Heirs Executors or Administrators should pay yearly after his death to Sir Humfry Lind and George Brett 250 l. per Annum during the said Dame Anns life if the said Elizabeth should so long live and thereupon the said Dame Ann Joyned with the said Alexander in a Grant of a Rent-charge of 250 l. per Annum out of Whitstanton for the Joyture of Elizabeth and Alexander 12 Jac. 1. demised Whitland and Tarkcombe to Lind and Brett the said Trustees for an hundred years to commence immediately after such time as the Heirs Executors or Administrators of Alexander should fail to pay the said 250 l. per Annum to the said Trustees during the life of the said Elizabeth That 15 Jac. 1. the said Alexander died and there being a failure of payment of the 250 l. by the Children Executors c. of the said Alexander to the said Elizabeth or to the Trustees for the use of the said Dame Ann the said Dame Ann paid the same out of Whitstanton and thereby the said Lease of 100 years of Whitlands and Yarkcombe did commence and thereupon she entred and received the Profits of Whitlands and the said Dame Ann paid the 250 l. during the life of the said Elizabeth That the said Alexander leaving three Children viz. Robert Mary and Ann wholly unprovided for and by Agreement the said Dame Ann was to pay 80 l. per Annum for the said Childrens Maintenance from the death of the said Elizabeth their Mother and that the said Dame Ann and her Trustees should assign the said Lease of 100 years to the said Children when at Age. That 17 Jac. 1. the said Lease was assigned to the Children to commence from 1636. that the said Dame Ann paid the said 80 l. per Annum maintenance which with 1750 l. she had paid to the said Elizabeth amounting to more than the Value of the said Lease of Whitlands whereof she received the Profits till about 1636. the said Mary one of the Children being dead and that the Defendant Ewens having married Ann the other Daughter they and the said Robert Brett the Son held the said premisses as Joynt-tenants by virtue of the said Lease but the said Robert Brett receiving more of the Profits than his share the Defendant Ewens and his Wife sued out a Writ of Partition in 1654. Partition a Moiety was delivered to the Defendant Ewens and Judgment given that the same should be held in severalty and the Defendant Ewens 12 Car. 2. for 132 l. Fine and 20 l. per Annum demised part thereof to the Defendant Nurse who assigned to the Defendant Rutland That the Plaintiff White insisting That Robert Brett acknowledged a Judgment to Richard White in 1644. extended the Defendants Moiety and brought an Ejectment and got a Verdict by surprize since which the Defendant brought an Action and obtained a Verdict whereupon the Plaintiff exhibited this Bill and hath stayed the Defendants by an Injunction To have an account of the Profits received and a Lease 12 Jac. 1. being 20 years since is contrary to the Limitations and Rules both at Law and Equity The Plaintiff insists He is now in the place of the said Robert but in a better condition his said Judgment under which he claims being long since Extended in the life time of the said Richard White and Robert Brett and before any Action brought and if the said Lease be satisfied the same ought to be set aside And to take off the length of Time insists That by a Decree made in the Court of Wards in 1640. the Defendants were to account with the said Robert Brett and the Plaintiffs Father Richard White really lent the said Mony for which the Judgment was got and in 1646. on Extent had a Moiety of Whitlands delivered and that notwithstanding the Lease to the three Children the Lady Ann had possession of Whitlands till 1637. The Defendants insist That the Lady Ann paid 1750 l. and 80 l. per Annum during the Minority of the Children which is more than the Value so look'd on her self an absolute Owner and disposed of the said Lease whereof the said Robert had a Moiety Lease to commence after failure of payment
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
to be defalked out of 1500 l. because of Marriage against Consent That the Plaintiffs said Marriage was without the Defendants privity and against his consent and that therefore the Plaintiff Ann cannot have the said 500 l. But decreed the Defendant to have the same with Interest from the Plaintiffs Marriage Wall contra Buckley 26 Car. 2. fo 178. THat the Plaintiffs Father Guardian takes Bond in his own Name for Arrears of Rent by this the Guardian hath made it his own Debt as his Guardian takes Bond for 100 l. Arrears of Rent due from the Tenants and takes it in his own Name This Court is of Opinion That the Plaintiffs Father hath by that means made it his own debt Stickland contra Garnet al 26 Car. 2. fo 340. THe Bill is for a Legacy of 20 l. Bill for a Legacy given to the Plaintiffs late Husband by the Will of George Coker Deceased to be raised and paid upon the Sale of Customary Lands mentioned in the said Will which said Lands are by the Will Devised by the said Coker to Jennet his Wife for her Life with remainder over to the said Defendants in Trust that after the Death of Jennet the said Trustees should Sell the same and with the Money thereby Raised to pay the Legacies in the Will and the Trustees to be Accountable over for the Surplus to other Persons and the said John Stickland the Legatee Dying before the said Jennet and before the time the said Lands out of which the said Legacy was to be Raised were appointed to be Sold. The Defendants Crave Judgment of the Court Legatee dyes before the time of payment of the Legacy yet payable to his next of Kin. whether the said Legacy of 20 l. was due to the Plaintiff or Determined by the Death of the said John Stickland This Court was of Opinion that the 20 l. did notwithstanding the Death of the said John Stickland continue payable to the Plaintiff Brond contra Gipps 26 Car. 2. fo 763. THis Court declared Lands Decreed to be Sold to supply the Personal Estate that the Plaintiffs Legacies ought to be paid out of the whole Estate of the Testator viz. out of the Personal Estate so far as that will extend and if that will not satisfie the same then the Testators Mannors and Lands undivided and unsold shall in the next place come in Aid of the Personal Estate for Satisfaction thereof and if that be not sufficient then the whole Mannors Lands and Tenements though Sold and Divided shall notwithstanding such Sale and Division come in supply thereof in proportion to be Refunded and paid by the Person or Persons in whose Hands soever the same shall be found Bowyer al' contra Bird 26 Car. 2. fo 769. THe Suit is to have an Account of a Legacy of 500 l. given by George Dale Father of the Plaintiff Ann to George his Son also Deceased to whom the Plaintiff Ann was Administatrix and to have an Account of the Residuary Estate of George the Father after his Debts and Legacies paid the Bill Charging that George the Father made his Will in Writing and thereof his Son Thurston Dale and one Dakin Executors and upon Publishing of his Will Declared Dakin only to be Executor in Trust for his Children and to take no Benefit thereby but the Estate to go to the Children and Dyed leaving the Plaintiff Ann and three Sons viz. the said Thurston George and Robert Dale all Deceased and that Thurston made the said Dakins his Sole Executor and the Plaintiff Ann is the only Surviving Child of the said George Dale the Father and claims the said 500 l. and the Residuary Estate This Court it appearing by the said Will Estate Decreed to the Residuary Legatee and not to the Administrator that the said Thurston who was Named Executor without any Trust was Residuary Legatee of the said George Dale his Father who had given by the said Will considerable Legacies to every one of his Children was fully satisfied the Plaintiffs were not intitled to the said 500 l. nor the Residuary Estate but that the said Thurston as Residuary Legatee was well intituled to the Residue of the said Estate and that the said Trust in Dakins ought to be Construed as is most Consistent with the Will in Writing and Dismist the Plaintiffs Bill Dom. Leech contra Leech 26 Car. 2. fo 369. THis Court declared A Deed tho' Cancelled yet good and the Estate shall not be Divested out of the Trustees tho' the Deed appeared Cancelled yet it was a good Deed and that the Cancelling thereof did not Devest the Estate of the Trustees therein named and that the Trust thereby Created ought to be performed Feake contra Brandsby 26 Car. 2. fo 74. THat William Crowe by Will Bill for a Legacy Devised to every one of his Servants living with him at the time of his Death 10 l. a piece and that the Plaintiff was Servant to the Testator at his Death so the Plaintiffs Suit is for the 10 l. Legacy The Defendant insists that the Plaintiff was not Servant to the said Crowe at his Death or lived with him as a Servant but the Plaintiff at the Testators Death and long before and after was the Servant of Mary Brandsby the Testators Mother This Court was Satisfied Who shall be said to be a Servant living with the Testator at his Decease that the Plaintiff was a Servant to the Testator and intrusted in his House-keeping and imployed in washing his Linnen and Tended him in his Sickness and therefore Decreed the Defendant the Executor to pay the Plaintiff her 10 l. Legacy Winchcombe contra Winchcomb 26 Car. 2. fo 654. THat in Michaelmas Term 2 Car. 1. John Carter obtained a Judgment against John Winchcomb the Defendants Grandfather of 400 l. upon two several Bonds both Dated 17 June 1623. for the payment of a 100 l. each Bond one payable the 1st of May then next and the other the 1st of May 1625. That the said Carter made Humfrey Coles his Executor and Dyed and the said Humfrey Coles Dyed and his Son John Coles took Administration De bonis non of the said John Carter who produced the Bond payable the 1st of May 1625. whole and uncancelled and thereupon insisted to be a Creditor for the said 400 l. on the said Judgment But the Defendant Winchcomb produced one of the said Bonds Cancelled Judgment upon Bonds of long standing ordered to be paid and insisted that the same was satisfied for that Humfrey Coles 12 Car. 1. had an Elegit returned and Lands delivered by the Sheriff which being near 40 years since the same would not have slept so long had not the said Debt been satisfied one Bond being Cancelled And the said Coles insisted that the said Carter was kept out by prior Incumbrances and that he Exhibited a Bill against John Winchcomb the Father to discover the same who by
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
such time as it is payable to the Child if it had not died neither is the Plaintiff intituled to any of the ready Mony in the House of Normanton which was 407 l. by any general Words in the Will But the Plaintiffs insist That by the general Words in the Will I devise all my Goods Chattels and Housholdstuff in and about my House at Normanton will carry the said 407 l. to the Wife as a particular Legacy and it ought not to be brought into the Account of the personal Estate This Court declared By the general words in a Will I devise all my Goods Chattels and Houshold-stuff in and about my House to c. 470 l. ready Monies in the House shall not pass to the Devisee she having had a particular Legacy of 1200 l. devised to her by the said Will. That as to the 407 l. though the Words were general yet considering the Intention of the Testator who by his said Will having before given to the Plaintiff Margaret a Legacy of 1200 l. if that he had intended to have given her 407 l. over and above the 1200 l. he might in the same place of the Will have given her 1600 l. as well as 1200 l. and therefore conceived that the Plaintiff ought not to have the 407 l. but this same ought to come in to the Account of the Personal Estate and decreed the same accordingly and as to the 500 l. claimed by the Plaintiff as Administratrix to her said Daughter whether the same ought to be paid presently or not till such time as the said Daughter might have come to the Age of 16 years if she had lived being the next Question This Court declared and decreed Legacy to be paid at 16 years of Age. Legatee dies before her Administratrix shall not receive it till the 16 years end That the same shall not be paid until such time as the said Daughter might have attained her Age of 16 years if she had lived but the same to stand charged on the Estate subject to the Sum by the Will unto that time and then the Sum to be paid to the Plaintiff her Executors Administrators or Assigns by the Defendants their Heirs and Assigns Elvard contra Warren 32 Car. 2. fo 255. THe Plaintiff having a Sequestation against the Defendants real and personal Estate for non-payment of 536 l. Sequestration decreed to the Plaintiff the Plaintiff prayed the same might be paid him out of the Defendants Estate so far as it will extend and out of the Security given by the Defendant for abiding the Order on Hearing and also prayed for that some part of the Defendants Estate now under Sequestration is a contingent Term which will determine upon the death of one person whereby the Plaintiff may lose his said Debt That the Commissioners of the Sequestration may be impowered to sell the said Estate and prayed also in regard the Defendants Estate is not sufficient to satisfie the Plaintiffs said demand that a Recognizance given by the Defendant to abide the Decree may be produced and inrolled This Court Ordered the said 536 l. Interest and Costs to be paid by the said Defendant The Mony decreed to be paid out of the Sequestred Estate and the Commissioners have power to sell the Term to raise the same or out of the Sequestred premisses or the Security before-mentioned and that the Commissioners of the Sequestration do sell such of the sequestred premisses as are held for any term for the best price and the Mony thereby raised to pay the Plaintiff towards satisfaction of his demands The Question is Whether the Defendant being charged in Prison in Bristol with a Decree of this Court can be discharged without satisfying the Decree it being insisted on that a Decree in this Court is not a Judgment to detain the Defendant This Court declared A Decree in Chancery as effectual to charge the person as an Execution at Law That a Decree in this Court is as effectual to charge the person of the Defendant as an Execution at Law and the Defendant being charged with the Decree the Court declared if the Warden of the Fleet let him go it should be at his peril Glenham contra Statvile 32 Car. 2. fo 755. THese being cross Causes Bill of Revivor dismist the Defendant Charles Statvile exhibited his Bill to be relieved against the Plaintiff and his Wife touching a Rent charge for which the Plaintiff and his Wife by their Bill claims and the Defendant Judith Statvile exhibited her Bill against the Distresses pretending the Lands out of which the Annuity issues is her Joynture Which Causes being heard a Trial at Law was directed to try whether the Arrears of the Annuity was paid upon Trial the Plaintiff obtained a Verdict for 475 l. and the Causes coming again to be heard it was decreed that the Defendants should pay the 475 l. with Interest and Costs which Costs were afterwards taxed to 226 l. and that Report confirmed and a Writ of Execution of the said Decree and Report left at the Defendants House and Mony demanded and for Non payment an Attachment issued against the Defendant Charles Statvile who appeared and was examined and certified not in Contempt but upon Arguing the Exceptions to the Certificate the Defendant was ordered to pay the 475 l. and the said Costs except 100 l. thereof which was remitted But the Defendant did not pay the Mony and the Plaintiffs Wife being since dead he hath Administration and is intituled to the Monies But the Defendants refuse to pay the same insisting That the said Decree and Proceedings are abated so that the Plaintiff now by his Bill seeks relief in the premisses and that a Subpoena ad Revivend Respondend or such other Process as the Matter should require might be awarded The Defendant by Demurrer insists That in case the Plaintiffs Bill shall be taken for an Original Bill then it contains no Equity he having remedy at Law and that the Plaintiff was a Defendant in former Suits No Defendant in case of Abatement before the Decree signed can revive and by the course of the Court no Defendant or any that represents him in case of an Abatement before the Decree or Final Judgment be signed and inrolled can or ought to revive and the Bill does not say that any Decree or Final Judgment is signed and inrolled and it is contrary to the Rules of the Court to make a Decree against the Plaintiff upon his own Bill and it would be meerly vexatious if the Plaintiff should revive his former Proceedings which if revived the now Plaintiff can have no Final Judgment contrary to the Prayer of his Answer to the Original Bill which was that he might be dismissed No Revivor for Costs there being no Decree inrolled and the Plaintiffs demands by the New Bill are chiefly for Costs of Suits which are extinguished by the death of the Plaintiffs Wife and
not to be shaken yet nevertheless the Case being new and great referred it to the Opinion and Determination of the Lord Chancellor His Lordship held the Demurrer good and Order to stand Skinner contra Kilby 2 Jac. 2. fo 72. THe Bill is to have the benefit of a Bequest by the Will of Robert Kilby The Will being viz. Will. If my Son Richard Kilby should behave himself towardly and undertake the payment of my debts and Legacies then he to have all my Lands in Tredington The Son Devisee of Lands upon good behaviour for his mis-behaviour decreedagainst him if he behave himself otherwise or to neglect to pay my debts and Legacies as aforesaid then he to have but 5 s. and left it to the direction of his Executrix Jane Kilby the Defendants Mother and also Mother of the said Richard Kilby the Plaintiffs Father That the said Richard waving the said Devise made to him and neglecting the payment of his said Fathers debts and Legacies the said Jane undertok and paid the same being intituled by the said Will and by her Will Bequeathed to the said Defendant the premisses This Court upon reading the said Will of Robert Kilby the Testator which being as is aforesaid declared that according to the said Will the said Jane was well intituled to the premisses and that the Defendant ought to enjoy the same and could not relieve the Plaintiff but dismiss the Bill Nayler contra Strode 2 Jac. 2. fo 473. THe Surrender of a Copyhold Estate by an Infant of 4 or 5 years of Age allowed of by this Court Surrender of a Copyhold by an Infant of 5 years of Age. Yet the Lord of the Mannor insisted he never heard of any admittance in that Mannor at such an Age. Cloberry contra Lymonds 2 Jac. 2. fo 1069. LAnds extended in 1 Car. 1. and held in Extent and a Bill exhibited to redeem and being not redeemed the Bill dismist in 16 Car. Upon the buying the Equity of Redemption of Lands in Extent Account decreed from the time of the purchase 1. and afterwards he who had the Extent by virtue of the said dismission sold the said premisses to the Defendant But the Plaintiff having since bought the Equity of Redemption seeks a Redemption This Court notwithstanding the dismission and length of time ordered an account from the time of the Purchase but no account from any time before but the profits to go against the Interest to that time Newte contra Foot 2 Jac. 2. fo 695. THe Defendant insists Depositions suppressed because the Sollicitors Clerk in the Cause did write as a Clerk in the Execution of the Commission That the Depositions in this Cause are irregulerly taken and ought to be suppressed for that Mr. Samuel Vnderwood who was Clerk to Mr. Edward Gibbon Sollicitor for the Plaintiff in this Cause did write as Clerk in Execution of the said Commission under the said Commissioners and the said Vnderwood confessed the same and solicited the Matter for which Reasons the Defendants Commissioners refused to joyn in the Execution of the said Commission it being of great mischief for Solicitors or their Clerks to be privy to the taking of Depositions in such Causes as they Solicite This Court was well satisfied that the said Depositions were for the Reasons aforesaid irregularly taken and doth order that the same be hereby suppressed and that the Six Clerks Certificate for the regular taking of the Depositions be discharged Griffith al' contra Jones al' 2 Jac. 2. fo 353. THat Peter Griffith being seised in Fee of Lands Will. and possest of a personal Estate of 20000 l. in 1681. by his Will devised to his Brother the Plaintiff 200 l. to the Plaintiff Shonnet Price and Dorothy Parry the Daughters of his Sister Shonnet 150 l. apeice c. and to the Sons and Daughters of his Brother and Sisters not mentioned by name in his Will 10000 l. equally between them which said Legacy doth belong to the Plaintiffs John Lloyd and Alice Williams being the only Nephew and Neece not named in the Will and the overplus of his Estate he obliged the Executors should pay and and distribute amongst his Brothers and Sisters Children and Grandchildren and the rest of his poor Kindred according to his Executors discretions and the Plaintiff claims the overplus of the said Estate as being all the Brothers and Sisters Children and Grandchildren of the Testator and poor Kindred that can take by the Will The Defendants the Executors insisted That they conceive the distributing and apportioning the said surplus is left to them by the express words of the Will and that they ought to distinguish the Grandchildren of the Testators Brothers and Sisters whose Fathers and Mothers were dead before the Testator and had no particular Legacies by the Will and consider the Condition and number of Children of the said Kindred and give most to those that most want and conceived that such of the Plaintiffs as have particular Legacies ought to have but a small one if any part of the surplus and the Defendants crave the directions of this Court how far the words Poor Kindred shall Extend to what Degree of Relation This Court decreed Legacies to Poor Kindred how far to be extended That the surplus of the said Estate be distributed to and amongst the Testators Brothers and Sisters Children and Grandchildren and as to the rest of the poor Kindred according to the Act of Parliament for distributing Intestates Estates and no further and to be distributed in such shares and propotions as the Executors in their discretions should think fit and whereas there are debts owing to the Testators Estate and the debtors poor but propose to pay as far as they are able This Court decreed Poor Debtors to the Testator who left a great Estate the Executors left at liberty to compound any debt That the Executors be at liberty to compound any debt owing to the said Estate if they should think fit Creditors on Judgments and Bonds decreed Creditors on Judgment and Bonds decreed to redeem Mortgages to redeem Mortgages towards satisfaction of their debts fo 843. Bernry contra Pitt 2 Jac. 2. fo 373. THe Bill is That the Plaintiffs Father being only Tenant for life of a real Estate which after his death would come to the Plaintiff and the Plaintiffs Father allowing the Plaintiff but a small subsistance and the Plaintiff borrowed of the Defendant 1000 l. in 1675 and entred into Judgment of 5000 l. Defezanced for the payment of 2500 l. after the Plaintiffs Fathers death which hapned in 1679. The Defendant insists That he lent the Plaintiff 1000 l for which the Plaintiff gave Bond and Warrant of Attorny to confess Judgment to the Defendant of 5000 l. which was Defezanced that in case the Plaintiff should out-live his Father and in one Month after his Fathers death pay the Defendant 2500 l. and if the Plaintiff
should Marry in his Fathers life time then he should from such Marriage during his Fathers life pay the Defendant Interest for the 2500 l. And the Defendant insists That if the said Plaintiff dyed before his Father the Defendant had lost all his Mony This Cause being first heard by my Lord Finch 9 Feb. 33 Car. 2. who then upon reading the said Defezance declared That as this Cause was he could not releive the Plaintiff otherwise then against the penalty and decreed the Plaintiff to pay to the Defendant 2500 l. with Interest This Cause was Re-heard by my Lord Chancellor Jeffreys the Plaintiff insisted That he had by order of this Court 5300 l. upon the said Judgment and that the late Lord Chancellor and Lord Keeper had frequently releived against such fraudulent and corrupt bargains made by Heirs in their Fathers life time and that there was not any real difference where the contract is for Mony and where it is for Goods This Court on reading the Defezance declared it fully appeared The Heir relieved against a concontingent contract made in his Fathers life time because it seemed unconscionable That these Bargains were corrupt and fraudulent and tended to the destruction of Heirs sent hither for Education and to the utter Ruin of Families and as there were new Frauds and subtle contrivances for the carrying them on so the relief of this Court ought to be extended to meet with and correct such corrupt Bargains and unconscionable practices and decreed the former order to be discharged and the Plaintiff to be restored to what he hath paid over and besides the Principal Mony and Interest Durston contra Sandys 2 Jac. 2. fo 108. THat the Defendant being Patron of the Rectory of Messenden in Com' Gloucester The Parson relieved against a Bond given for Resignation and the former Incumbent having Resigned the same the Defendant told the Plaintiff he would present him to the said Rectory worth about 100 l. per Annum and the Plaintiff coming to the Defendant for the said Presentation the Defendant drew a Bond of 300 l. penalty with Condition That the Plaintiff should resign the said Rectory at any time within six Months Notice which the Plaintiff sealed and thereupon the Plaintiff was Instituted and Inducted and was ever since a constant Resident on the place and hath been at charge of Repairs and the Plaintiff demanded Tithes of the Defendant who refuses to pay the same but gave the Plaintiff Notice to resign who Resigned the said Rectory into the Hands of the Bishop of Gloucester but the Bishop refused to accept the said Resignation and ordered the Plaintiff to continue to serve the Cure declaring That he would never countenance such Unjust practices of the Defendant but ordered his Register to enter it as an Act of Court That the Plaintiff had tendred his Resignation and that the said Bishop had rejected it That the Defendant Arrested the Plaintiff on the said Bond for not Resigning so to be relieved against the said Bond is the Plaintiffs Suit The Defendant insisted That the Plaintiff demanded more than his just due for Tithes whereupon the Defendant refused payment and that the Defendant requesting the Plaintiff to resign according to the Condition of the said Bond the Defendant Arrested him which he hopes is Just for him to do and that this Court will not hinder the prosecution and that the Plaintiff hath no colour of Relief in this Court against the said Bond and insist That the Reason of his Arresting the Plaintiff on the said Bond was his Non-residence and litigious Carriage to the Parishioners This Court declared That such Bonds taken by Patrons from their Clerks to Resign at pleasure may be good in Law yet ought to be enjoyned and damned in Equity whensoever they are used to any ill purposes And the Defendant making ill use of the said Bond his Lordship decreed That a perpetual Injunction be awarded against the Defendant to stay proceeding at Law upon the said Bond. Knight contra Atkyns 2 Jac. 2. fo 604. THat the Plaintiff is Brother and Heir as well of John as Benjamin Knight Marriage Agreement to have Monies laid out in Lands for a Joynture to such uses the Remainder to the use of the right Heirs of the Husband The Mony is not laid out the Husband dies without Issue the Mony decreed to the Plaintiff being right Heir and also Executor of the said Benjamin and the said John Knight being seised of a Plantation in Barbadoes of 1000 l. per Annum by his Will declared his debts to be paid and gave several Legacies and made his Brother Benjamin sole Executor and gave him the residue of all his real and personal Estate and the said Benjamin proved the Will and afterwards a Treaty of Marriage was between the said Benjamin and Sir Johnathan Atkyns on behalf of Frances the Daughter of Sir Jonathan upon which Treaty it was agreed that Sir Jonathan should give the said Benjamin 1500 l. as a Portion with the said Frances and for a Joynture in case Frances survived Benjamin was to add 1500 l. and the said Sums to be laid out in a purchase of Lands to be setled upon Benjamin and Fraâ—â—â—s for life and for a Joynture for Frances in lieu of her Dower and after their decease to the Issue between them and for want of such Issue to the right Heirs of the said Benjamin and until such purchase the said respective Sums of 1500 l. to be paid into the hands of the Feoffees and the increase thereof to the uses aforesaid but in regard such a purchase could not be speedily found out Sir Jonathan and Benjamin became mutually bound to each other by Bonds of 3000 l. penalty with Condition reciting That there being suddenly a Marriage to be had between the said Benjamin and Frances and for setling a future Maintenance upon Frances in case she survived and upon the Issue between them If therefore Sir Jonathan his Heirs Executors c. should pay as a Marriage portion with the said Frances into the hands of two Feoffees to be joyntly appointed between them 1500 l. which with the like Sum to be paid by Benjamin was to be laid out upon good Security real or personal and the increase thereof for the uses aforesaid and in case the whole was not provided within a short time then so much as either party should deposit and the Remainder with all convenient speed then the said Bonds to be void That such provision was sufficient and in full of any Dower the said Frances might have to Benjamin's Estate That no Feoffees being appointed the 1500 l. still remains at Interest in Sir Jonathans hands And the said Benjamin for payment as well of his own as his Brother Johns debts and legacies and to oblige his real and personal Estate for performance of the Marriage Agreement did by Deed in 1681. convey unto Trustees all his Plantations Houses
in Equity to be an Evidence against the Deed so as there appears no Evidence that the Earl surprized the Duke or that the Duke was surprized As to the third point touching the Circumstances and Conditions of the Persons The Earl was a near Relation and had done many kindnesses to the Duke and his Family and was especially intrusted by him and though the other Persons that claim by the Will of 1687. may be of Relation to him yet he that hath the best Title hath the right And so it is in the Case of Persons where both claim under two voluntary Conveyances As to the fourth and last point touching the Circumstances the Duke was in when the Will was made the Duke when he made the Will was under a Restraint by the Deed of 1681. for his power was executed and the Duke had restrained himself And the Court of Equity hath no power to examine into the Reasons and Considerations for doing it and there may be Reasons for a Wise Man to Restrain himself for he may not know what surprize may be put upon him and as there may be reason for it so it shall be presumed there was good reason Further there is no Evidence of an Intention in the Duke to execute the power for he had an opportunity to have done it and because a Man may one way dispose of his Estate that therefore he may do it any way is strange and if that may be done it will overthrow all the Conveyances that are made They on the other side pretend the Duke had forgotten the Deed. It was made but in 1681. and well attested by Credible Witnesses and if he had forgotten it his Councel had an Abstract of the Deed and because a Man had forgot a Deed that ought not to be a cause in a Court of Equity to set that Deed aside for Memory may fail but a Deed is Permanent so there ought to be no relief against the Earl and those that claim by the Deed of 1681. Lord Keeper There be three Suits in this Court the Dutchess her first Eill is to set aside the Deed of 1681. And the second Bill by the Moncks much to the same effect and on the same Evidence And the third Bill by the Earl complaining of the Will of 1687. On the hearing of the Causes the 8th day of July 1691. before the then Lords Commissioners and on a Trial directed touching the Validity of the said Deed of 1681. there was a Verdict for the Deed and this Verdict hath not been stirred The Cause comes now to be heard on the Equity reserved on the whole matter I declare the Deed doth stand Unrevoked at Law and the Defendant the Earl of Bathe is well intituled under that Deed for here are no Creditors nor Purchasers or any Children to be provided for and the benefit that comes to the Earl is the Essex and the Northern Estate The Court did declare that there is not any sufficient matter in Equity appears to set aside the Deed therefore dismist the Bill of the Earl of Mountague and Christopher Monk so far as they seek relief to set aside the said Deed of 1681. and as to the other matters Equity to be reserved THE TABLE A UPon the Buying the Equity of Redemption of Lands in Extent Account decreed from the time of the purchase p. 392 Bond to perform a Marriage Agreement pleaded in bar of other Debts 103 Letters under ones Hand shall amount to a good Agreement within the Statute of Frauds and Perjuries 286 Mony Agreed upon Marriage to be laid out in Land shall be applied as the Land should have been had it been purchased 409 Annuity not being demanded in 40 years time conceived to be a Trust 221 The Defendant ordered to pay the Plaintiff 100 l. for putting in a Scandalous Answer 386 Bill to discover Assets Lands decreed to be sold to supply the Personal Estate 99 Legatees to refund to make up Assets 137 Lands purchased in Trust decreed Assets to pay Judgments 143 No resorting back to a defect in Articles after a Conveyance thereupon executed 107 Cross-Bills for setting aside or performing an Award 24 A voluntary Award decreed to be performed 304 B BAil to answer no more than what is exprest in the Ac etiam Billae 55 226 Bankrupts as to Partners 227 228 Joynt Debts 227 228 Separate Creditors 227 228 Relief against Over-reaching Bargains and how 266 270 The Bill not to be taken pro Confesso if the Defendant hath not appeared but a Sequestration shall issue out against him 284 Relief denied against a Bond entred into to a Solicitor to pay 100 l. when a Verdict should be recovered 21 Parson relieved against a Bond given for Resignation 398 C CErtiorari allowed to remove proceedings by English Bill in the Lord Mayorâ—s Court into Chancery 110 Conveyance with power of Revocation on payment of 12 d. at such a place 12 d. was tendred at another place with express declaration to revoke the Deed 74 Vide Revocation 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 22 Covenant to purchase so much Lands per Annum value 273 Voluntary Conveyance tho' a provision for younger Children not to prevent satisfaction of subsequent Judgments 265 Copyholder not to be admitted by Letter of Attorney 56 Fines of Copyholders whether certain or arbitrary it having been tried at Law the Court would not relieve the Plaintiff other than for the preservation of Witnesses 76 Of renewing Copies upon reasonable Fines 135 Vpon a Contract for Copyhold Estate and Purchase Mony paid the Bargainor dies before Surrender his Heir decreed to surrender 218 Surrender of Copyhold Land by Infant of 5 years Old 392 Costs from the time of their being Taxed shall carry Interest and shall Charge and be recovered out of the Assets 247 Where Costs to be paid or not 172 Bill for Creditors to take their proportionable shares but their Debts having been paid to them and Releases given dismist 218 D THe Court of Chancery will not try or ascertain Damages recovered at Law 63 Copies of Depositions not to be recorded or exemplified 36 Depositions suppressed and why 393 Blanks filled up after the sealing and execution of a Deed yet good 410 Distribution according to the Act for the better settlement of Intestates Estates 371 372 Such Distributions are made in Chancery as well as in the Ecclesiastical Courts 373 374 375 A 1000 l. to be raised amongst 5 Children one dies before Distribution the Survivors shall have the Share and not the Devisee of him that is dead 150 Decree in Chancery as effectual to charge the person as an Execution at Law 193 Executory Devises vide Perpetuities Term devised to B. and he die without Issue then to C. it s void as to C. 16 200 l.
284 Middleton conta Middleton p. 377 Com' Montague contra Com' Bathe p. 417 N NEwton contra Langham p. 108 Newport contra Kinaston p. 110 Nowell contra Robinson p. 248 Nodes contra Batle p. 283 Norton contra Mascall p. 304 O OLiver contra Leman p. 124 P POtter contra Hubbert p. 85 Plummer contra Stamford p. 106 Prigg contra Clay p. 187 Dom ' Pawlet contra Dom ' Pawlet p. 286 Pullen contra Serjeant p. 300 R DOm ' Read contra Read p. 19 Rowley contra Lancaster p. 24 Ramsden contra Farmer p. 115 Ray contra Stanhope p. 157 Raymond contra Paroch ' Buttolphs Aldgate p. 196 Rose contra Tillier p. 214 Ring contra Hele p. 221 S SMith contra Holman p. 23 Shalmer contra Gresham p. 29 Stowell contra Botelar p. 68 Com' Sterling contra Levingston p. 75 Sutton contra Jewke p. 95 Stickland contra Garnet p. 97 Sowton contra Cutler p. 108 Salter contra Shadling p. 117 Still contra Lynn p. 120 Stawel contra Austin p. 125 Stewkley contra Henley p. 166 Saunders contra Earle p. 188 Sale contra Freeland p. 212 Stapleton contra Dom ' Sherwood p. 255 Skinner contra Kilby p. 491 T TOlson contra Lamplugh p. 43 Thorne contra Newman p. 71 Tregonwel contra Lawrence p. 94 Twyford contra Warcup p. 106 Turner contra Turner p. 154 Trethervy contra Hoblin p. 172 Tucker contra Searle p. 173 Thompson contra Atfield p. 216 Turner contra Crane p. 242 W WIndham contra Love p. 14 Wiseman contra Foster p. 22 White contra Ewens p. 49 Warren contra Johnson p. 69 Wallop contra Dom ' Hewet p. 70 Wall contra Buckley p. 97 Winchomb contra Winchomb p. 101 Woolstenholme contra Swetman p. 129 Warwick contra Cutler p. 136 Warner contra Borseley p. 151 Windham contra Jennings p. 247 Woodhall contra Benson p. 290 Com' Winchelsey contra Dom ' Norcliff p. 365 Whitmore contra Weld p. 382 Whitlock contra Marriott p. 386 Y YAte contra Hook p. 39 Books lately Printed for John Walthoe in Vine Court Middle-Temple AN Exact Table of Fees of all the Courts at Westminster as the same were by Orders of the several Courts carefully Corrected and diligently Examin'd by Records and Ancient Manuscripts by the Persons following Viz. The CHANCERY by Sir Miles Cooke Samuel Keck Esq and others The KINGS-BENCH on the Plea-side by W. Turbill and Nicholas Harding On the Crown-side by R. Seyhard and Richard Horton The COMMON-PLEAS by W. Farmerie Silv. Petyt and H. Clift The EXCHEQUER On the Plea-side by R. Beresford Tho. Arden c. On the Equity-side by Butler Buggins Esq Very useful and necessary for all Attorneys Solicitors and Entring-Clerks and indeed for all Persons that have any Business of moment To which is added a Table for the ready finding out the Fees belonging to each Office 2. Reports of Cases Taken and Adjudged in the Court of Chancery in the Reign of King Charles the First and to the 20th Year of King Charles the Second Being Special Cases and most of them decreed with the Assistance of the Judges and all of them referring to the Register-Books Wherein are setled several Points of Equity Law and Practice To which are added Learned Arguments relating to the Antiquity of the said Court its Dignity and Jurisdiction 3. Observations Historical and Genealogical in which the Originals of the Emperor Kings Electors and other the Sovereign Princes of Europe with a Series of their Births Matches more Remarkable Actions and Deaths As also the Augmentations Decreasings and Pretences of each Family are drawn down to the Year 1690. 4. The Law of Obligations and Conditions or an acurate Treatise wherein is contained the whole Learning of the Law concerning Bills Bonds Conditions Statutes Recognizances and Defeazances as also Declarations on Special Conditions and the Pleadings thereon Issues Judgments and Executions with many other useful Matters relating thereunto digested under their proper Titles To which is added a Table of References to all the Declarations and Pleadings upon Bonds c. now extant 5. A compendious and acurate Treatise of Fines Fines upon Writs of Covenant and Recoveries upon Writs of Entry in the Post with ample and copious Instructions how to draw acknowledge and levy the same in all Cases Being a Work performed with great Exactness and full of Variety of Clerkship The Third Edition enlarged REPORTS AND CASES Taken and Adjudged in the COURT of CHANCERY In the REIGN of King CHARLES II. Every contra Gold 20 Car. 2. fo 921. THE Bill is to be Relieved for two Legacies of 1500 l. apiece which the Plaintiff claims as Administratrix to her Daughters Susanna and Martha Every given and secured to them by several Conveyances and by the last Will of William Every their Grandfather The Case is viz. Portions raised by Deed. That the said William Every the Grandfather in consideration of a Marriage between William Every his Son and the Plaintiff Martha a Daughter of Sir John Pool by Deed 22 April 7 Car. 1. did provide That if William his Son should die without Issue male by him on the body of the said Plaintiff Martha and should have two Daughters by the Plaintiff Margaret then living or if the said William should fail to have issue Male which should be living until the same Daughters should respectively attain 18 years of Age or be married that then the Recoveror therein named should stand seised of the Premisses to the use of the Recoverors and their Heirs for the raising 1500 l. apiece for the Portions of the said Daughters and 20 l. a piece per annum for each of their Maintenance in the mean time to be paid at their respective Ages of 18 years or days of Marriage which should first happen and if either of the said Daughters should die before that Age or Marriage the Portion of her so dying to be distributed to the Survivor and if all the said Daughters should die their Portions not paid or payable then the same should be paid to the next Heir of William Every the Grandfather That William Every the Son New Provision by a second Deed and a Will thereupon had Issue by the Plaintiff one Son named William and two Daughters the said Susan and Martha and by Deed of Bargain and Sale and Release thereupon both dated in December 1651 in which Release so much of the Tripartite Indenture as relates to the Daughters Portions is recited William Every the Grandfather Conveys to Gold Doble and Holloway and their Heirs Lands in Somersetshire to the use of William the Grandfather for life and after to Gold Doble and Holloway for 200 years with other Remainders over upon Trust out of the Profits or by granting Leases or Estates to pay his Debts first and then for raising to and for the said Susan and Martha so much Mony as should supply and advance their respective Portions to them severally thereafter to be given by William
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
Answer acknowledged the said Debt This Court declared that the said Debt of 400 l. and Costs ought to be paid and Ordered the same accordingly and that the same be paid by Phillip Innelt Esq who purchased the premises liable thereto Hodkin contra Blackman al' 26 Car. 2. fo 773. THe Bill is to discover the Estate of the Intestate Maurice Blackman which came to the Hands of Elizabeth his Relict and to make the same liable to the satisfaction of a Debt of 300 l. lent to the said Intestate for Security whereof the said Intestate gave a Penal Security of 1000 l. The Defendant Elizabeth the Administratrix of the said Intestate insists Agreement to Settle 100 l. in Money Goods or Lands upon Marriage for 500 l. Portion 200 l. of the said 500 l. not paid she hath no Assets to Satisfie the Plaintiffs Demands for that in 1665. the Intestate Blackman her late Husband before Marriage with her and her Father Doctor Argoll came to this Agreement viz. that her said Father should give with her in Marriage to the said Blackman 500 l. and in consideration thereof and of such Marriage the said Blackman should enter into one Obligation to the said Doctor Argoll of 3000 l. Bond of 3000 l. to perform the said Agreement and Judgment thereupon pleaded in Bar of other Debts and Goods penalty Conditioned for the Setling of 1500 l. upon the said Defendant Elizabeth and her Heirs in Monies Lands or otherwise within one Month after the Marriage that accordingly the said Blackman in August 1665. entred into such Bond and the said Marriage was had and the said Blackman received 300 l. of the Portion and the remaining 200 l. was in the Hands of the Defendants Serjant Brampston that the said Blackman never made such Provision for the said Defendant Elizabeth and her Children as by the Condition of the said Bond he was to do and the Defendant Mary after the Death of Doctor Argoll her Father whose Executrrix she is finding the said 3000 l. uncancelled and the Condition thereof not performed did in August before the time of putting the Defendant Elizabeth's Answer commence an Action of Debt against the said Defendant Elizabeth as Admininistratrrix to Blackman her late Husband and recovered a Judgment thereon for 3000 l. Debt upon the Bond. But the Plaintiff insists that the remaining 200 l. in Serjant Brampstons Hands which is part of the said Elizabeth's Portion ought to be applyed to Satisfie the Plaintiffs Debt as far as the same will go and what the same falls short of the rest of the Estate ought to supply This Court declared they saw no colour of Cause to give the said Plaintiff any Relief against the said 3000 l. Bond and Judgment thereon had other than against the Penalty and therefore the said Defendant ought to be first satisfied her said 1500 l. out of the Personal Estate of the said Blackman and Decreed the same accordingly Mosely contra Mosely 27 Car. 2. fo 521. THe Defendant claims several things devised to her in specie by the Will of Sir Edward Mosely Clause in a Will that if any Legatee should hinder or oppose the Execution of the Will then such person should lose the Legacy bequeathed A Suit for the Legacy no forfeiture and the Plaintiff would bar her claim and right for the whole by a particular Clause in the Will viz. That if any Legatee should hinder or oppose the Execution of his Will then such person should lose the Legacy bequeathed This Court as to the Clause of Forfeiture in the Will which the Plaintiff would have the benefit of by reason of the Defendants contesting and opposing of the Execution of it declared its Opinion to be That no advantage ought to be taken thereof but that the Defendant ought to have her specifick Legacies bequeathed by the Will The Court also declared their Opinion of the Rent demanded by the Defendant of 880 l. that notwithstanding the Defendants opposition of the Will the said Rent was not forfeited or suspended nor ought in equity to be so deemed and ordered the Defendants demand thereof to stand good and be allowed as a good demand Plummer contra Stamford 27 Car. 2. fo 74. THat Edward Stamford entred into a Recognizance of 800 l. An Ancient Recognizance not set aside to let in a Mortgage to John Stamford his Brother in 22 Car. the Plaintiff having a Mortgage on Edward Stamfords Estate and in respect of the Antiquity of the said Recognizance would have it set aside presuming the mony to be satisfied that the Plaintiff may come in with his Mortgage This Court would not relive the Plaintiff against the Recognizance Twiford contra Warcup 27 Car. 2. fo 749. THe Plaintiff and Defendant entred into Articles for Purchase of the Lands in question Articles Conveyance by which Articles the Plaintiff Covenanted That the said Lands did fully and compleatly contain the quantities of Acres in a particular to the said Articles annexed and in pursuance of the said Articles and particular a Conveyance was Executed to the Defendant Now the Defendant insists That the Plaintiff hath not performed the Covenant in the said Articles for that the Lands are short of what the particular mentions them to be and insists they ought to be made good by the Plaintiff This Court on reading the Articles particular and Conveyance declared that altho' the Covenant in the Articles were that the Lands did full and compleatly contain the quantities in the Schedule yet in that Schedule and likewise in the Conveyance it is mentioned to contain so many Acres by Estimation and if there were 4 or 5 Acres more the Plaintiff cannot have them back again so on the other side if less the Defendant must take it according to the Conveyance and that the Articles being only a security for a Conveyance and the Defendant having afterwards taken a Conveyance No resorting back to a defect in Articles after a Conveyance thereupon executed the Defendant shall not resort to the Articles or to any particular or to any Averment or Communication after the Conveyances Executed which ought not to be admitted against the Deed and therefore saw no Cause to make any allowance for defect of Acres Newton contra Langham 27 Car. 2. fo 563. THe Plaintiff having an Adventure of 1700 l. Adventure in the East-India Company Mortgaged redeemable in the East-India Company Mortgaged the same 15 years since to Sir William Vincent who died and made the Defendant Executor who hath possessed the said 1700 l. Adventure and refuse to reassign the same to the Plaintiff the mony being paid for which it was a Security The Defendant insists That the said Adventure is not redeemable it being contingent and hazardous and cost much mony to insure and 14 years since it was assigned from Hand to Hand by a Decre for the Assignment to the Defendants Testatrix This Court declared That notwithstanding
the hazard and contingency of the said Adventure Mortgaged and the length of time since the Mortgage the Plaintiff ought to be admitted to a Redemption of the said Adventure Sowton contra Cutler and Clerke 27 Car. 2. fo 676. THe Bill is to call the Defendant Cutler to an account for Wares delivered him and Monies paid to and for him amounting to 3000 l. Foreign Attachment and to be releived against an Attachment in the Lord Mayors Court by the Defendant Clerke whereby he Attached 2000 l. in the Plaintiffs hands supposing the Plaintiff to be so much indebted to the Defendant Cutler and that Cutler is indebted to Clerke in a a greater Sum So the Plaintiff Exhibited an English Bill in the Mayors Court for Relief therein upon which Bill the Plaintiff could not proceed his Witnesses living out of the Jurisdictions of that Court so the Plaintiff prays a Certiorari to remove the said Proceedings into this Court The Defendant Clerke hath pleaded Custom of London That by the Custom of the City of London any Creditor in the Name of any other person may make an Attachment of his own Mony in the hands of his Debtor it not being material whether such Creditor be really indebted to the person so Attaching And the said Clerke further pleaded That the said English Bill was to the same effect with this Bill and is not dismist and demurred to that part which prays a Certiorari to remove the said Proceedings on the Attachment and English Bill for that it is not practicable to remove Records out of a Latin Court to an English Court which cannot hold the Plea thereof nor for the Plaintiff to remove his own Bill by Certiorari This Court held the said Plea to be Insufficient No Certiorari allowed to remove Proceedings by English Bill in the Lord Mayors Court into Chancery and Over-ruled the same and the Defendant Clerke to answer that part of the Bill But as to that part of the Bill which requires the Certiorari held the Demurrer to be good and ordered a Procedendo to the Lord Mayor c. that they may proceed upon the same Attachment but at the same time an Injunction to Issue to stay the Defendants proceedings on the said Attachment in question Newport contra Kinaston 27 Car. 2. fo 517. THe Point in difference arising upon the Will of the Lady Katherine Leveson Legacy the Question being Whether 500 l. mentioned in her Will be thereby devised to Mrs. Katherine Newport or Mrs. Snead who were both her Grand-daughters it being thus exprest in the said Will viz. To my Kinswoman the Lady Diana Newport Wife to my Lord Newport I bequeath my Diamond Pendants which cost 400 l. and to her Daughter Mrs. Katherine Newport my God-daughter a Jewel set with Diamonds wishing her all happiness and 500 l. to my God daughter Mrs. Katherine Snead I give and bequeath a Diamond Bodkin and an Emrod Border I also give her as a Token of my Love to her self a power to alter or add to her said Will and by a Codicil annexed to her Will and made part thereof And after a Legacy given to Mr. Richard Newport of 400 l. in Gold it follows thus viz. Also I give unto his Sister Mrs. Katherine Newport my God-daughter 500 l. in Silver And after two other Legacies intervening it is thus exprest viz. Also I give unto my God daughter Katherine Snead 100 l. more than I have given her in my Will by which said Will and Codicil the said Mrs. Katherine Newport doth conceive that there is two 500 l. Upon the Construction of the Words of a Will two 500 Pounds Legacies to one person decreed devised unto her 500 l. by her Will and 500 l. in Silver by the Codicil and the Executors scruple to pay the same for that the said Mrs. Katherine Snead doth claim the said 500 l. given by the Will to belong unto her so that Mrs. Katherine Newport seeks to have the two 500 ls by the Will and Codicil But Mrs. Snead insists That the 500 l. given by the Will as aforesaid belongs to her and is so intended and not to Mrs. Newport by the most Grammatical and reasonable Construction of the Will and Codicil This Court upon Reading of the said Will was fully satisfied both by Construction of the said Will and by the Intention of the said Lady Leveson that both the 500 l. given by the said Will and the 500 l. given by the Codicil were given and do belong to the said Mrs. Newport and decreed the said Executors to pay her the 1000 l. accordingly Wyrall contra Hall 27 Car. 2. fo 516. THe Testator made his Will A good Will though no Executor named but named no Executor This Court declared the Will to be a good Will Price contra Evans 27 Car. 2. fo 460. THe Plaintiffs Title is under an Occupant Title under an Occupant demurred to and allowed The Defendant demurred This Court allowed the Demurrer for that a Title under an Occupant this Court will not Countenance nor give any Relief thereof Lambert contra Greene 27 Car. 2. fo 122. THe Defendant Cicily Greene demandeth an Allowance for a Third part of a Tenement and Ground for the Remainder of a Term of 99 years The Case is thus viz. For 80 l. the same were Assigned in 1655. Lease not a customary Chattel to Henry Hall for Remainder of a Term of 99 years in Trust for the Defendants Testator William Greene and the Remainder Expectant upon the said Term conveyed to the said Testator and his Heirs which Demand is submitted to the Judgment of this Court This Court declared That the said Lease was not a Customary Chattel and would not allow the Defendant's Demands Lucking contra Rushworth 28 Car. 2. fo 801. THat John Pincheon deceased After a Statute acknowledged and a Mortgage the Conisors Trustees renew the Leases in their own Names yet Decreed liable to the Statute borrowed of the Plaintiffs Father 4000 l. for which he mortgaged Freehold and Copy-hold Lands and also for farther Security entred into a Statute but the Terms in the Leases being expired the Defendants as Trustees have renewed the said Leases with the Colledge in their own Names in Trust for the Children of Pincheon and so deny the same are liable to the Plaintiffs debt This Court was satisfied the Plaintiffs debt being secured by Statute as well as by Mortgage ought to be satisfied out of all the Estate of the said Pincheon in Law or Equity and that the Renewals of the said Leases in the Names of the Trustees ought not to shelter or protect the Estate against the Plaintiffs debt for that though the Plaintiffs Mortgage did bind but a particular part of the Estate yet the Statute did bind the whole Estate and the Statute binding the whole Estate in its own nature though no mention were made of subjecting the same by the Will to the
the premisses as aforesaid for that Mary sued her Mother and had her portion out of the personal Estate and though the Defendants Father might intend to give the Plaintiffs Father the premisses and sealed a Deed for that purpose yet he altered his Mind and never perfected it and there was no Consideration for his so doing And the Defendant insists He ought to enjoy the premisses for that by the Plaintiffs own shewing his Title is defective and therefore ought not to receive any countenance in a Court of Equity against the Defendant who is Heir at Law to his Father and Grandfather and comes in and ought to have the Aid of the Court to protect his Title But the Plaintiffs Council insisted That the Defendants detaining of the said Deed is a Fraud and the Consideration of making the said Deed is valuable Defect of Livery and Seisin aided in Chancery and there is no defect therein but want of Livery and Seizin which defect this Court hath often supplied when no Fraud appears in gaining the Deed. This Court the said Deed appearing to be fairly executed by the Defendants Father and that there was no defect therein save only the form of Livery and Seizin and made on such valuable Consideration as Marriage decreed the Defendant to execute Livery and Seizin in the said Deed and make farther assurance of the said premisses to the Plaintiff and his Heirs and the Plaintiff is decreed to enjoy the same against the Defendant Barker contra Hill 33 Car. 2. fo 278. THe Plaintiff having Contracted with the Defendants Father for the purchase of a Copyhold Estate Upon a Contract for Copy-hold Estate and purchase Mony paid the Bargainor dies before Surrender his Heir decreed to surrender the Plaintiff paid the purchase Mony and the Defendants Father agreed to surrender the premisses at next Court and said He had made a Surrender lately to the use of his Will which would enure to the benefit of any Purchaser but before next Court day and any Surrender made the Defendants Father died so the Bill is to have the Defendant his Son and Heir to confirm the Plaintiffs purchase by Surrender or otherwise as this Court shall direct This Court decreed the Defendant when he came of Age to surrender effectually the premisses to the Plaintiff and the Lord of the Mannor presently to admit the Plaintiff Tenant to the premisses Bonnington contra Walthall 33 Car. 2. fo 37. THe Defendant Walthall claims an Annuity of 100 l. per An. Annuity and Interest out of the Estate in question ever since August 1642. with Interest by virtue of a Deed of that date made by himself to Mr. Serjeant Willmot and others whereby it is appointed that the Trustees in the said Deed should dispose of the Monies by them raised by profits and sale of the premisses for payment to the said Defendant and his Assigns during his life and the life of Peter Bonnington the yearly Sum of 100 l. and the said demand of the said 100 l. per Annum and Interest being a Matter of great value and moment in the Cause it is referred to the Judgment of the Court whether all or how long the said 100 l. per Annum shall or ought to be allowed in this point as also the original Cause which was heard 19 Nov. 1679. coming now to be heard again The Plaintiff insisted That the 100 l. per Annum if it was created the same determined by the death of Peter Bonnington But the Defendant Walthall insists to have Allowance for the said Annuity of 100 l. and Interest for the same for 40 years past whereas the Plaintiff insists That the 100 l. per Annum never was nor ought to be allowed to the Defendant for that the Deed of August 1642. under which the Defendant claims the said 100 l. per Annum the same was to be paid in the first place before debts and there being a debt due to one Chambers which the said Defendant brought in against which debt if the said Annuity had been real the Defendant would have opposed the payment of his said 100 l. per Annum being to be paid in the first place and the Defendant not demanding the said Annuity in 40 years and suffering debts to be paid before it it ought to be adjudged a Trust for Peter Bonnington and the rather for that no Consideration appears for such Annuity The Defendant insists That the Plaintiff admits it a Trust and seeks Relief only for the Surplus after Trusts satisfied and determined and this Trust being Continuing the same with Arrears and Interest ought to be paid to the said Walthall This Court on reading the said Deed Annuity not being demanded in 40 years time conceived to be a Trust saw no Consideration for granting the said Annuity and it never being demanded this Court conceived it was a Trust for Bonnington and would not charge the Estate therewith and decreed the Estate to be discharged thereof Ring contra Hele 33 Car. 2. fo 270. THe Plaintiffs Rings Bill is for the Writings and Estate of Sir Henry Hele which he claims by virtue of an Agreement made by the said Sir Henry and him wherein it was agreed that the said Sir Henry should settle his Lands in Wigborough and Bridges in Com' Sommerset on himself for life after to the Heirs of his Body with power to make his Wife a Joynture of Wigborough and to grant Estates thereout for three lives with a Remainder to the Plaintiff Ring and the Heirs of his Body if he Survived and Sir Henry died without Issue with Remainder to Sir Henry's right Heirs with power to Sir Henry to sell Pooles Tenement part of the premisses and Sir Henry was forthwith to suffer a Recovery to dock the Intail of the premisses Consideration and in consideration thereof the Plaintiff Ring was to settle his Estate in Dorset and Sommerset to the use of himself in Tail with Remainder in Tail to Sir Henry Hele with Remainder in Fee to the Plaintiff and that if either party leave Issue to be at liberty to make new dispositions as he pleased That Sir Henry imployed one Chubb and Patten to assist the Plaintiff Ring in Surveying Sir Henry's Estate and after both the Plaintiff Ring and Sir Henry went to Counsel who advised a Deed of bargain and sale of the said Estate from Sir Henry to the Plaintiff Ring which was executed between the said Sir Henry and the Plaintiff Ring and Inrolled and bears date the 26 of March 1673 That before the said Recovery the Plaintiff Ring prepared another Deed dated the 6th of May following to lead the uses thereof according to the said Agreements and a draught of a Settlement of the Plaintiff Rings Estate on Sir Henry both which being perused and approved by Sir Henry were also executed and the Deed to lead the uses of the Recovery recited the said Agreement and Inrolled Deed to make the Defendant
to the uses of the Articles To which the Defendant pleaded and demurred insisting the same was obtained on good Grounds and Reasons and farther insisted that since the said Dismission and before the Bill of Review the said Lamb had paid the said 1500 l. with other money unto the Defendant Atwood in Right of the said Ann his Wife who was Administratrix to Richard Kettleby and Ann the Daughter and that in consideration thereof the said Defendant Atwood had made a Settlement equivalent thereto for a Joynture for his said Wife and the Issue Male of their two Bodies with a provision for Daughters and that they had a Son then living and prayed the Judgment of this Court therein Which Plea and Demurrer was argued before the Lord Chancellor Jefferies which his Lordship over ruled and Ordered the Defendant to answer and he would hear the Cause ab origine at which hearing the Defendant Atwood and his Wife insisted That the Plaintiffs demand being only a Remote Remainder in Fee as Right Heir of the Husband was not so valuable in Interest as for a Court of Equity to Decree a purchase to be made for the Sale thereof and to take the money from the Wife and Administratrix to make that purchase when she ought to return the same as Assets or howsoever 1500 l. of the money was her own Portion and belongs to her by her Election within six Months and though according to the strict Letter of the Articles her Husband Richard Kettleby could not be said to die leaving no Issue because he had a Daughter living at the time of his death yet the Daughter dying within the six Months allotted for the Wives Election in case he had died leaving no Issue there was great equity to extend the Construction of that Clause of the Articles so far as to give her back her own 1500 l. portion The Plaintiff insisted That such Remainders in Fee have been considered by this Court and purchases decreed to be made and limited to such Right Heirs and that the 2000 l. in this Case cannot be Assets and in like Cases had been so adjudged at Common Law and in this Case the Articles have expresly provided that the money should go as the Land ought to have gone as if a purchase had been made therewith and as for the pretence of the said Defendant Anns electing 1500 l. her power of electing did never arise nor can her power be enlarged by this Court beyond the express words of the Articles nor is there reason for it in this case in regard the Articles provided that she shall have a Dower besides and the said Ann by virtue of her two Administrations hath a great personal Estate besides the 2000 l. in question This Court declared That the 2000 l. Money to be laid out in Land shall be apapplied as the Land should have been had it been purchased must go as the Lands ought to have gone in case a purchase had been made and yet the Wife had no power to elect 1500 l. part thereof because her Husband died leaving Issue and so her power of election never arose nor did any Circumstances appear to his Lordship in this Cause to induce him to inlarge the Construction of the Articles touching such power of electing beyond the express words thereof and decreed the said dismission to be reversed and that the Defendant Atwood and Ann his Wife do lay out the 2000 l. for purchasing Lands in possession in Fee simple to be setled according to the intent of the Articles And as for the Defendants the Trustees Trustees indempnified in regard they relyed upon the said dismission Signed and Inrolled for their indempnity in paying the said 2000 l. to the said Atwood at his Wife they are indempnified thereby Paggett contra Pagget 3 Jac. 2. fo 2. A Deed of Revocation Blanks filled up after the Sealing and Execution of a Deed yet good and a new Settlement made by that Deed tho' after the sealing and execution of the said Deed Blanks were filled up in the said Deed and the said Deed not read again to the party nor resealed and executed yet held a good Deed. Smith contra Fisher 3 Jac. 2. fo 641. THat Susan Beale by her Will in writing after several Legacies thereby given Money deviled to one for life with Limitations over good gave all the rest and residue of her Estate unbequeathed which consisted mostly in ready money to be put forth to Interest by her Executors and one half of the Interest to be paid to the Plaintiff Ann Cole her Sister during her life and the other half of the Interest unto the Plaintiff Ann Smith Daughter of the said Ann Cole and after her Mothers decease to have all the Interest during her life and if the said Ann Smith died without Issue of her Body then the principal of the Residue should be equally divided between the Defendants Mary Cleever and Elizabeth Farmer The Question is whether the devise over to the Defendant Clever and Farmer as aforesaid was a good devise This Court declared that the said Will was a good Will as to the limitations over to the Defendant Clever and Farmer and decreed the Executors to account accordingly Com' Dorsett contra Powle 3 Jac. 2. fo 148. 599. THis Case is Separate Maintenance where by the Deeds and Agreement before Marriage the Countess of Dorset had an absolute power to dispose of all the Personal Estate she had at the time of her Marriage with the Defendant and the proceed thereof and had by her Will and otherwise well disposed of and appointed the same to the Plaintiff and this Court Ordered the Defendant to confirm the same but as to the Rents and Profits of the Real Estate upon consideration of the several Clauses of the Deed relating to the said Estate and different penning of the same from the other Deeds that concerned the aforesaid personal Estate his Lordship declared that the said Countess had no power to dispose of the same By Indenture Tripertite Dated 28th of June 31 Car. 2. made between the Defendant Mr. Powle of the first part Sir Thomas Littleton and Charles Brett Esquire of the second part and the Countess of Dorsett on the third part reciting That the said Countess was seized in Fee of several Manor Lands Tenements and Hereditaments in England and reciting there was a Marriage intended between Mr. Powle and the Countess it was agreed that if the Marriage took effect the Countess should during the Coverture receive and dispose to her own use and at her own Will and Pleasure of all the Right and Title she had or claimed in the said Manour Lands and Premisses or in any other Manours or Lands of the Countess in England and of all the Rents and Profits thereof so as Mr. Powle his Executors Administrators and Assigns were not to intermeddle nor have any Benefit or Advantage thereby in Law or Equity but