The Second Part OF REPORTS OF CASES Taken and Adjudged in the Court of Chancery, FROM The 20th Year of King Charles II. TO THE First Year of Their present Majesties, King William and Queen Mary. 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 settled several Points of Equity, Law and Practice. To which is added, The late Great CASE between the Duchess of Albemarle and the Earl of . LONDON: Printed by the Assigns of Richard and Ed: Atkyns, Esquires; for john Walthoe, and are to be sold at his Shop in Vine-Court, Middle-Temple. MDCXCIV. THE PREFACE TO THE READER. THE Favourable Entertainment which the First Part of these Reports met with at your Hands, hath encouraged me to Present the Remainder of them to Your perusal: The acceptance whereof I shall not much doubt, when I consider that besides the Charm of Novelty, the Cases were heard and decreed with great Deliberation and solemnity in our own times, by Persons very Eminent and Famous in their Professions, and upon that account they bear with them their own Letters of Recommendation. For I cannot imagine, that the Chancery Causes, which, if of any considerable weight (as usually they are) being generally mixed with Law, should receive a closer and more satisfactory Determination, when they are Pronounced from a Cleryg man or a bare Statesman, than from one of that Honourable Profession. To render them the more entire, I have abridged the great Case of the Duke of Norfolk, which hath solidly settled, the perplexed Points of Perpetuities: It is true, The Lord chancellor Finch differed in Opinion at that time from the Learned Judges, and he was in pain to do it; yet certainly there is no Common Lawyer, (let him Espouse his Notions never so dearly) but must both admire and acquiesce in the Equity of that Case. I have added an Abstract of the famous Case of Com' Montague contra come de Bath, with the Judges and Lord Keeper's concurrent Opinions, and their Reasons briefly recited; but that Cause by Appeal now depending before the Highest Judicature in the Nation, and waiting the Decision of the Honourable House of Peers, I do not think fit to mentiom more of it. In many other excellent and useful Cases here Reported, tho' they have been Argued and decreed in a Court of Equity, yet a Common Lawyer may find many Points agreed and settled to good satisfaction, respecting those two great Cargoes of Lawbusiness, WILLS and SETTLEMENTS. But Lastly, to obviate an Objection which causeth some quarrel with us; How comes it to pass, that after such frequent and solemn arguing of Causes, in all their Niceties and Circumstantials, that Decrees are so often Reversed by succeeding Chancellors? I must Reply to this, as that Learned Chancellor did in the above mentioned Case of the Duke of Norfolk. I must be saved by my own Faith, and must not Decree against my own Conscience and Reason. Besides by a further Penetration into the Series of Transactions, the Intentions of the Parties and the like, perhaps something may arise which was not thought of, or not thoroughly considered. But the true and main Cause of the variety of our Opinions is, the Natural Imperfections of our Faculties: Uncertainty even in our own Judgements, is incident to our Nature. And I cannot express my Notion better, than in the bold Words of that Ingenious Canonist Gomez, in Regula de Triennali possessore, cap. 5. Non est inconveniens judicium esse uno tempore justum & postea ejus contrarium justius. Et hoc malum imponi videtur mortalibus in poenam, ut eorum Opiniones secundum varietatem temporum senescant & intermoriantur. aliaeque diversoe renasrantur & deinde pubescant. Talis enim est humani juris disciplina, ut nulla in ea Opinio eodem statu diu stare possit. Dies diei eructat verbum, & nox nocti indicat scientiam. THE TABLE OF THE CASES. A ALexander contra Alexander p. 37 Audley contra Dom' Audley p. 156 Annand contra Honywood p. 179 come Arglas contra Muschamp p. 266 Attorney General contra Vernon p. 353 Ash contra Rogle p. 387 B BEauchamp contra Silverlock p. 9 Brabant contra Perne p. 36 Boulter contra Chester p. 55 Barthrop contra West p. 62 Boucher contra Antram p. 65 Broud contra Gipps p. 98 Bowyer contra Bird p. 99 Burgrave contra Whitwick p. 131 Burn contra tint p. 148 Brodhurst contra Richardson p. 153 Dom' Blois contra Blois p. 162 Dom' Bruce contra Gape p. 197 Barker contra Hill p. 218 Bonnington contra Walthall p. 219 Benson contra Bellasis p. 252 Bradbury contra Ducem Bucks p. 286 Beckford contra Beckford p. 359 Berny contra Pitt p. 396 C COm' Castlehaven contra Vnderhill, p. 46 Chambers contra Greenhill p. 66 Croster contra Wister p. 67 Crip contra Bluck p. 88 Cotton contra Cotton p. 138 Civil contra Rich p. 141 Carr contra Bedford p. 146 Coles contra Hancock p. 210 come Craven contra Knight p. 226 Coventry contra Hall p. 259 carvil contra carvil p. 301 D DArrel contra Whitchcot p. 59 Dethick contra Banks p. 92 Dowse contra Percival p. 248 Dom' Daeres contra Chute p. 245 Durston contra Sandys p. 398 Dixon contra Read p. 21 come Dorset contra paul p. 411 E EVery contra Gold p. 1 Eyre contra Good p. 34 Episcop' Sarum contra Nosworthy p. 60 Elvard contra Warren p. 192 Eyre contra Hastings p. 273 F FRy contra Porter p. 26 Floyer contra Hedgingham p. 56 Feake contra Brandsby p. 101 Fenwick contra Woodroofe p. 363 G GErman contra Dom' Colston p. 137 Dom' Grey contra Colvile p. 143 Green contra Rook p. 166 Glenham contra Statvile p. 193 Girling contra Dom' Lowther p. 262 Griffith contra Jones p. 394 H HAle contra Aston p. 35 Hunton contra Davies p. 44 Hunt contra Jones p. 56 Hooker contra Arthur p. 62 Howard contra Hooker p. 81 Harmer contra Brook p. 92 Hodkin contra Blackman p. 103 Hethersel contre Hales p. 158 Howard contra Duke of Norfolk p. 229 Hall contra Dench p. 297 Hallily contra Kirtland p. 360 I JOlley contra Willis p. 137 Jones contra Henly p. 361 K DOm ' Kemp contra Kemp p. 63 Knight contra Atkyns p. 400 Kettleby contra Lamb p. 404 L LAngton contra Tracy p. 30 Lance contra Norman p. 79 Leech contra Leech p. 100 Laurence contra Berny p. 127 Lambert contra Greene p. 213 Lucking contra Rushworth ibid. Langton contra North p. 271 M MOsely contra Maynard p. 17 Macklow contra Wilmot p. 18 Malpas contra Vernon p. 45 Monnius contra Dom' Monnius p. 68 Mosely contra Mosely p. 105 Morgan contra Scudamore p. 134 maddock's contra Wren p. 209 Magistr', etc. University Oxon ' contra Foxcroft p. 244 Massingberd contra Ash p. 275 Moor contra Hart p. 284 Middleton conta Middleton p. 377 come Montague contra come p. 417 N NEwton contra Langham p. 108 Newport contra Kinaston p. 110 Nowell contra Robinson p. 248 Nodes contra Battle 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 Day p. 187 Dom' Pawlet contra Dom' Pawlet p. 286 Pullen contra Sergeant 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' Buttolph's Aldgate. p. 196 Rose contra Tillier p. 214 Ring contra Helena p. 221 S SMith contra Holman p. 23 Shalmer contra Gresham p. 29 Stowell contra Botelar p. 68 come 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 Henly p. 166 Saunders contra Earl p. 188 Sale contra Freeland p. 212 Stapleton contra Dom' Sherwood p. 255 Skinner contra Kilby p. 491 T TOlson contra Lamplugh p. 43 thorn contra Newman p. 71 Tregonwel contra Laurence, 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 come 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 Examined by Records and Ancient Manuscripts, by the Persons following: Viz. The CHANCERY, by Sir Miles Cook, 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, Silu. Petyt and H. Clift. The EXCHEQUER: On the Plea-side, by R. Beresford, Tho. Arden, etc. 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 settled 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 accurate 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 Plead thereon, Issues, Judgements 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 Plead upon Bonds, etc. now extant. 5. A compendious and accurate 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 seized of the Premises, 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, than 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 Daughter's 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 Money as should supply and advance their respective Portions, to them severally thereafter to be given by William the Grandfather, either ready Money or otherwise, to be limited by any act thereafter to be executed in his life time, or by his last Will, to the Sum of 1500 l. apiece, together with 20 l. per annum, until the said 1500 l. apiece should be paid unto them; the same to be in satisfaction of all Moneys that they might claim by force of the said Indenture Tripartite, with Proviso, That if the said William the Grandfather should, by Will or otherwise, appoint them 1500 l. apiece, or 1500 l. to the survivor of them, for their Portions with such yearly Maintenance, as aforesaid, so as the same should be well and truly paid unto them accordingly: Or, if before such portions should be paid, the said William Every their Brother should die without Issue Male, whereby the said premises should be charged for raising of Portions and Maintenance aforesaid; that then the trusties should not levy the Portions by that Indenture limited, other than what should be paid in the life time of William Every their Brother. And it is thereby declared, that in case the said Susanna or Martha, or either of them, should die before their Portions (in and by the said last Indenture to them limited) should become due and payable to them, that then the said portion and portions of them or either of them so dying, should not go or be to the survivor of them, or to any the Executors, Administrators or Assigns of them, or either of them; but should go to whom the said William the Grandfather by Writing or Will should appoint, and for want thereof to his Executors or Administrators. And it is further declared, That the said Susan and Martha shall not have any benefit, in case that they, or any other for them, should take any advantage or benefit by means of the said Indenture Tripartite, or any Proviso therein contained. And then, the 9th of March, 1651, William the Grandfather makes his Will, therein reciting▪ that he had by several Deeds, all dated Feb. 21. Car. 1. granted to Knight, Cade, Webber and Ford, certain Lands in the County of Dorset, for terms of years, determinable upon the death of certain persons therein mentioned, upon trust and for the use and benefit of such person or persons to whom he should by his last Will give, limit, or appoint the same: And by his Will, gave, limited and appointed all the said Estates and Terms so by him granted to the said Knight, Cade, Webber and Ford, to the Defendants Gold and Doble, in Trust, that the said Gold and Doble, or the survivor of them, or the Executors or Administrators of the survivor of them, should dispose of all the Rents and Profits of the said Lands, or should otherwise sell, assign and convey the said Estates and Terms, as to them should seem most convenient, towards the raising of 1500 l. apiece to the said Susan and Martha: And did thereby give and appoint to each of the said Susan and Martha 900 l. to be paid unto them severally out of his personal Estate, whereof he should die possessed, accounting therein all such Moneys which he had or should lend upon the Specialties taken in the Names of Gold and Doble, towards the further raisings of their said Portions unto 1500 l. apiece, having (as by his Will is expressed, by his Deed dated the last day of December than last passed) mad provision for advancing their said Portions to the Value out of his Lands in Com' Somerset; which said Portions his last Will and meaning was, should be paid unto them the said Susan and Martha severally, at their respective Ages of 21 years, or sooner, if they should be respectively Married with the Consent of the said Gold and Doble, or the Survivor of them; with a Proviso, That if William Every his Grandson, should happen to die without Issue Male of his Body lawfully begotten, before the said respective Portions should become payable to the said Susan and Martha, according to the time before limited, whereby the said Susan and Martha should be Entitled to 1500 l. apiece, by virtue of the said Indenture Tripartite, made upon his deceased Son's Marriage; then the said Legacies or appointments of Portions unto Susan and Martha thereby made should be void, and of his Will made Gold and Doble Executors. And the Plaintiff, as Administratrix of her said two Daughters, Susan and Martha, exhibited her Bill against Gold and Doble, Executors of William the Grandfather, and Webber the surviving Trustee in the Deed of the Lands in Somerset, and against John Every, the Heir in Tail of William the Grandfather, and seeks to be Relieved upon the Deeds and Will , for the 1500 l. apiece, given to Susan and Martha her Daughters. The Defendants say, That William the Grandfather died in the life time of William the Grandson, and that the personal Estate of William the Grandfather came to 4000 l. and that William Every the Grandson was Buried 23 Nou. 1660, and was about 20 years old when he was Buried; and Susan, the Plaintiffs Daughter, was Buried 25 July 1655, and was about 18 years old when she was Buried; and Martha the Plaintiffs Daughter was Buried 4 July 1660, and was about 20 years old when she was Buried; and it appears there was sufficient Personal Estate to satisfy the several Portions demanded. Which Case the Master of the Rolls having considered, and upon the Hearing before him, Declared, That he was satisfied the 1500 l. apiece, by the Deed and Will aforesaid, for Portions to Susan and Martha, Daughters of the Plaintiff, was a Debt or Duty well fixed in them by the said Deeds and Will, and by their Deaths did accrue and belong to the Plaintiff their Mother, as Administratrix to them, did Decree the same should be paid accordingly. Which Opinion and Decree the Defendants appealed to the Lord Keeper, who being assisted with Judges, and upon reading the Deeds and Will aforesaid, were all clear of Opinion, That the Indenture Tripartite, A Prior Deed of Settlement barred by a subsequent Deed, and New provisions made for Portions. of 27 June 7 Car. 1. is not, as the Case now stands, material or conducing to the state of the Case, or to the limitation of the Time for payment of the Portions; for that the same is by Deed of Bargain and Sale, and Release thereupon in 1651. barred, and a New provision made for raising the said Portions in such manner as he should limit by any act in his life time, or by his last Will. By which Deed the Survivorship between the two Daughters is barred, and a provision made, That if either of them die in the life time of William the Grandson, the Portion of her so dying shall not go to her Executors, but to the Grandson. And William the Grandfather, having by his Will of the 9th of March, 1651. wherein he recites the Deed of Decemb. 1651. limited and appointed 900 l. apiece to be paid to his Daughters severally out of his personal Estate, towards the raising their Portions to 1500 l. apiece, having (as is recited) made provision by his Deed dated the last of December, 1651, for advancing their Portions to that Value. And he doth by his Will declare and appoint, that such Portions should be paid unto them the said Susan and Martha severally, at the respective Ages of 21 years, A Deed and a Will construed as one entire provision, or limitation, how Portions should be raised. or sooner if they should be married; and both of them dying unmarried before they or either of them attained the Age of 21, in the life time of William the Grandson: And the said Deed of Decemb. 1651. relating to the Will, and both of them making one entire provision and limitation of the said Portions, how the same shall be raised, and what time paid. His Lordship and the Judges were all clear of Opinion, there was no ground for the former Decree made by the Master of the Rolls, or pretence of Claim to either of the said Portions of 1500 l. by the Plaintiff, as Administratrix to Susan and Martha, and discharged the Decreed and dismissed the Bill. Beauchamp contra Silverlock, 20 Car. 2. fo. 765. THat William Beauchamp, Orphan's Mony. the Plaintiffs Father, being a Freeman and Citizen of London, by his last Will gives a Third part of his Lands and Tenements whatsoever and wheresoever, to the Plaintiff, and appointed Dorothy his wife Guardian to his Children, and made her sole Executrix, and Richard Cambden, Robert Cheslyn, John Pace and Hogan hovel, Overseers; and the said Dorothy makes her Will afterwards, and gave the greatest part of her Estate to the Plaintiff, and Willed her Brother Hogan hovel, and her Sister Margaret Cheslyn, and the Survivor of them to be Guardian to her Children, and made the said Hogan hovel and Margaret Lovel her Executors, and died. That by Articles of Agreement between Hogan hovel, Robert Cheslyn and Margaret his wife, reciting the Will of Dorothy Beauchamp, whereby they agreed to administer the Estate to the best benefit of the Children, and exhibit a true Inventory into the Prerogative Court, and that they should with the consent, and not without the consent and knowledge of each other, use their best endeavours to get in the Estate, and not to release any part of it without each others consent, and that if Hogan hovel should die and Margaret survive, than the Executors or Administrators of Hogan hovel to make a true account to Margaret of all the Estate which he should receive of the said Testators, and pay the same to Margaret, or to such person who shall by the consent of the said William Beauchamp the Plaintiff, be chosen as Guardian to receive the fame, or to such person to whom by Right or Law the same aught to be paid, and the same Agreement and Covenant is, if the said Margaret should die and hovel survive. That Robert Cheslyn died, and the said Margaret married the Defendant James Silverlock. And Hogan hovel possessed himself of the greatest part of the personal Estate of the Plaintiffs said Father and Mother, and received the profits of the Lands of the said Margaret, receiving only Title as Executor. That Hogan hovel made his Will and Mary his wife Executrix; and afterwards the Guardianship of the Plaintiff, the Orphan, is at his Friend's Decree committed to Sir William Bateman. That the said Mary hovel, the Executrix of Hogan, exhibited an Account into the Orphan's Court of the Money received by her Husband, belonging to the Plaintiff, out of which Allowances being made, there rested due to the Plaintiff 933 l. and that afterwards the Defendant Silverlock and Margaret his Wife, the Surviving Executrix of Dorothy, did by their Deed empower Sir William Bateman, then reputed a Man of great Estate, to receive of Mary hovel, Executrix of Hogan hovel, who was the other Executor of the said Dorothy, the said 933 l. to the use of the Plaintiff, and to give a discharge for the same; that Sir William Bateman received it accordingly, and gave a Discharge for it in the Name of Silverlock and his Wife, and gave Security after that to the Court of Aldermen, to pay the Plaintiff 800 l. That Mary hovel died, and made Executors. Executors paying in Orphan's Money by consent of Friends and trusties, into the hands of Sir W. B. Guardian, who gave Security to the Court of Aldermen, not to be charged upon the Insolvency of Sir W.B. That the Plaintiff did several times after he came of Age, own Sir William Bateman to be his Debtor for the 933 l. that the Plaintiff received of Sir William Bateman 440 l. and gave Acquittances for it; the first was on the 4th of January, 1663., the last on the 25th of July 1666; that the Plaintiff came of Age in Decemb. 1663., and the said Sir William Bateman became Insolvent at Christmas, 1666. The Question touching the said 933 l. claimed by the Plaintiff, and whether the same should be charged on the Defendant Silverlock, and surviving Executor of Dorothy Beauchamp, or on the Defendant Sir William Bateman, who had given Security to the Chamber of London, as aforesaid, for the Plaintiffs use. This Court as to the Executors of Mary hovel, declared, there was no reason to charge him therewith; but that they ought to be discharged and dismissed from being accountable for the same. And as to the Defendant Silverlock, the Case being as aforesaid, declared that there was a clear Intention of all parties to perform the parties aforesaid, and that the said Defendant Margaret never received any Estate during Hogan Hovell's Life, and that Sir William Bateman being chosen by the consent of the Friends of the Plaintiffs, and by the Order of the Court of Orphans appointed Guardian to the Plaintiff, she the said Margaret gave in an Account to the Court, and impower'd Sir William Bateman to receive the Money, who before had given Security to answer the same, or the greatest part thereof; and when the Plaintiff came of Age, he admitted and owned Sir William Bateman to be his Guardian, and received several Sums of Money from him, and Sir William proved not Insolvent till three years after; and so there being no default in the said Defendant Margaret, there was no reason to charge her the said Margaret with the same, but that she ought to be dismissed and discharged from the same. But Sir William having given Security to the Court of Orphans for 843 l. part of the said 933 l. by him received, by Order of the Defendant Margaret, and that for the residue (being 90 l. 10 s.) there was no Security given by the said Sir William. This Court Declared, That the Defendant Margaret ought to be charged with the same, and Decreed accordingly, but not with Interest for it. Windham contr. Love, 20 Car. 2. fo. 100 21 Car. fo. 741. THe Bill is, Executory Devise. That the Dean and Chapter of Winchester, June 17 Jac. granted the premises to Gilbert Searle, his Heirs or Assigns, during the Lives of the two Defendants, Barnaby, Robert and Nicholas Love, Sons of Dr. Nicholas Love, and to the survivor of them in Trust for the said Dr. Love: And the said Gilbert Searle, in July 17 Jac. demised the said premises 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 premises 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 premises confirmed to him, and the said Defendants never pretended any Right, possibility, or Executory Estate in the said premises 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 premises to the Duke of York and his Heirs, and he 18 Car. 2. granted the premises, 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 premises 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 premises during her life; and after her dearh, which was about 1656, the said Nicholas Love the Son entered, and by virtue of the Will possessed the premises 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 premises of the Usurpers, the same ought not to prejudice the Defendant Barnaby's Right and Interest in the premises 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 expectance of the death of Dulcibella. This Court referred it to be tried 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 premises, after the death of the said Nicholas Love, the Son, if the term so long continue. The said Issue was tried, 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 possessed of the premises for the Lives of Nicholas, Robert, and the Defendant Barnaby, demised the premises 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 premises 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 Judgement was given for the Plaintiff. This Court Declared, That the Defendant hath no Right or Title to the premises; 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 count. 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 Herd 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. settled 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 Purchasers, 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 Enrolled by the Plaintiff; wherefore the Defendant ought not to be examined on Interrogatories, being to put up the Order on Hearing, in a Point, that the Plaintiff at the Hearing did not think fit to move for. This Court, in regard the Examining of the Defendant on Interrogatories, is omitted out of the Decree, this Court would not now Order it. Dominus Read contra Read, 20 Car. 2. fo. 146. L.B. THis Case is touching the granting a Ne Exeat Regnum against the Defendant. Ne exeat Regnum. The Defendanr insisted, that the said Writ ought not to be issued out, for that the Affidavit of the Lady Read did not contain ground sufficient to warrant it. For that the Writ is a Writ of Prerogative on behalf of the Crown; and the reason of granting it is, that the party against whom it is prayed intends to convey away some considerable Treasure out of the Kingdom, or do some other matter prejudicial to the King or his Government, which the Affidavit doth not specify; and if that were, yet no Writ doth regularly lie in this Case against a Layman to find Security, as this Writ is, but only against a Clergyman; neither is the Writ Indorsed, as formally it ought to be, Supersedeas. and therefore aught to be superseded, and several Cases were offered, and Precedents 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 Precedents 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 Clergyman to find Security, and not for a Layman, 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, Precedents and Practice of granting Writs of Ne exeat Regnum in former and later Times, which are usual against a Layman to find Security, as well as a Clergyman, or else there can be no Writ at all to be found in the Register against a Layman to find Security in any case, Laymen to find Security, as well as Clergymen, upon a Ne exeat Regnum. or any Ne exeat Regnum against a Lay man; neither is there in the Register any such form of Endorsing 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 aught to stand, and Ordered it accordingly. Dixon contra Read, 20 Car. 2. fo. 46. & 561. THe Bill is, No relief against a Bond entered 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 Sheriff's 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 proceed in such cases) proved his Suggestions: Yet the Defendant, without a Procedendo, Procedendo hath removed the Proceed back, out of the Mayor's Court into the Sheriff's 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 joined 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 Privilege 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 Privilege, 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 Judgement 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 aught 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, etc. Some consent, and some not; yet decreed to be paid. That the Plaintiff marrying, as aforesaid, aught to have but 250 l. as by the Memorandum in the Will, and the rest to be distributed amongst the other Children of the Testator. But the Plaintiff insists, That in this case there was not by the Will any devise over to the said other Children. This Court, upon Reading the Proofs touching the approbation of the Major part of the Overseers, and their consent to the Plaintiffs marriage, decreed the Defendants to pay the Five hundred Pounds and Damages. Rowley contra Lancaster, 21 Car. 2. fo. 993. THat Matthew Lancaster bequeathed to John Creek 100 l. thus, (viz.) Will. 50 l. Devise of Money to be paid at a Day to come. Devisee dies before the Day; yet payable to his Administrator. in one Month after the Expiration of his Apprenticeship, and the other 50 l. within one whole year after the Expiration of the said Apprenticeship, and made the Defendant Executor: That the Apprenticeship expired 29 Sept. 1664. but John Creek dying before the Legacy was paid, the Defendant refuses to pay it to the Plaintiff, the Administrator of the said John Creek. The Defendant insists, That he paid the 50 l. due within a Month after the Expiration of the Apprenticeship, and that the said John Creek died before the whole year after the Expiration of his Apprenticeship was expired, and therefore the other 50 l. was not due to the Plaintiff. This Court being assisted with Judges, were clear of Opinion, That the said Legacy was Debitum in praesenti solvend in futuro, and decreed the said 50 l. to be paid to the Plaintiff with damages. Fry contra Porter, 21 Car. 2. fo. 568. THat the Earl of Newport, Will. deceased, by his Will devised to the Plaintiff the Lady Ann, the Message called Newport House, with the Appurtenances, thus; (viz) I do give and bequeath unto the Lady Ann, Countess of Newport, my Dear Wife, all that my House called Newport-House, and all other my Tenements and Hereditaments whatsoever in Middlesex, for her Life; and after her decease, I do give and bequeath the said House, and all other my Tenements and Hereditaments, as aforesaid, to my Grandchild the Lady Ann Knowles, the Daughter of Nicholas Earl of Banbury, by the Lady Isabel my late Daughter, and to the Heirs of her Body lawfully to be begotten. Provided always, and upon Condition, that my said Grandchild, the Lady Ann Knowles, do marry with the consent of my said Wife, and of Charles Earl of Warwick, and Edward Earl of Manchester, or the Major part of them. And in case the said Lady Ann Knowles do and shall marry without the consent of my said Wife, and the Major part of my trusties aforesaid, or shall happen to departed this Life without any Issue of her Body; then I will and bequeath all the said premises unto my Grandson George Porter, Son of my deceased Daughter, the Lady Ann, late Wife of Thomas Porter Esq; and to his Heirs for ever. The Bill is to be Relieved against the Forfeiture of the said Estate, for not performing the said Condition in the Will, and Marrying against the consent of the trusties and the Mother: Yet the said Mother was told, That the Plaintiff was about to marry, and said nothing to the contrary; whereupon the Plaintiff married and hath Issue. The Plaintiff insisting, That if any Error were committed in Marrying, it was through Ignorance, and not Obstinacy, she the Plaintiff being very young, and knew not of the Proviso or Condition in the said Will; and it would be very unreasonable to make the happiness of the Plaintiff to depend upon the consent of Strangers in point of Marriage, to put it into their power to keep her during her life, either from Marrying, or from her Estate, and thereby make them Masters of her Affection or Fortune, and to disinherit her and her Children. But the Defendant insists, That the Reason of inserting the said Proviso into the said Will was, that the Plaintiff the Lady Ann might be disposed of in Marriage without disparagement, and therefore that she should marry with the consent of the said Countess and the two Earls, or the Major part of them; and of that other Clause, (viz.) That if she married without such Consent, than he gave the said House and Premises to the said Defendant George Porter the Infant, and his Heirs for ever; and that the said Lady Ann having Married a person very unequal to her Fortune, and without such Consent, as aforesaid, having little or no Estate, had made a wilful breach of the said Proviso or Condition in the said Grandfathers Will; Lands devised on Condition, the Devisee marry with consent, and limitation over. Devisee marries without Consent; she shall not be relieved, but the Land decreed to the remainder Man. and the said George Porter claims the said House to him and his Heirs, by virtue of the said Condition and Limitation over to him by the said Will, the construction whereof is to be made out of the Will itself, and not otherwise; and the said Lady Ann had notice of the said Will before marriage, there being discourse of it by the trusties to her, and so the Lady Ann ought not to be relieved against the said Forfeiture or Limitation aforesaid. This Court, with the Judges and on perusal of Precedents, are clear of Opinion and fully satisfied, That the Plaintiff ought not to be relieved against the said Forfeiture, and that the same was such as ought not to be relieved in Equity, and dismissed the Plaintiffs Bill. Vide this Case in Mod. Rep. p. 300. with Counsels and Judges Arguments, seriatim. Shalmer contra Tresham, 21 Car. 2. fo. 560. THe Bill is, to discover the Deeds of several Lands, and whether they were not made in Trust, and whether the Debt demanded by the Plaintiff, were not mentioned in a Schedule thereunto annexed. The Defendant pleaded, Bill to discover Settlements in Trust. Plea, That the Defendant is a Scrivener, and had taken Oath, not to discover the Secrets of his Clients. Overruled. That he was a Scrivener by Profession, and hath taken the accustomed Oath that Scriveners do before they are made Free in London, whereby he is obliged not to discover the Secrets of those persons business that employ him in that Trade, without their leave; and that he was employed by and assisted Sir John Langham in the purchasing of the said Lands, and the Writings concerning the premises he drew, and hath the Keeping thereof by the said Sir John's Direction, and so ought not to discover the said Writings, contrary to his Trust, nor any thing relating to this Matter. This Court declared, That the Oath of a Scrivener doth not oblige from a discovery, more than the Oath of any other Free man of London: And if it had been in the case of a Counsellor at Law, the said Plea had been Insufficient in this case; and Overruled the Plea, saving he is not to Answer to whom he paid the Purchase Mony. Alford count. Pitt, 21 Car. 2. fo. 181. THe Plaintiffs Suit is, Demurrer. Remedy at Law. Award. to have the benefit of an Award. To which the Defendant demurred, and says, That the Plaintiff ought to take his Remedy at Law. This Court Overruled the Demurrer. Langton & al', contra Tracy & Astrey, 21 Car. 2. fo. 376. THe Bill is, to have the several Debts due to the Plaintiffs, being Creditors of the Defendant Roberts, paid. The Case is, (viz.) That Thomas Roberts conveyed the Manor and Lands in question to the Defendant Tracy for payment thereof, Payment of Debts. and of his other debts; but before that Conveyance to Tracy, the Defendant Nicholas standing engaged as Surety for the said Roberts for several of the debts, the said Roberts made the said Nicholas a Lease of the premises for Sixty years at a Pepper-Corn Rent; and such Lease being made, and no care taken for satisfying the debts, the Plaintiffs Sue the said Roberts for their debts, so to avoid such Prosecution, made the aforesaid Conveyance to Tracy in Fee, upon Special Trust to pay all his debts; but Tracy combining with the Defendant Astrey, who had procured the said Nicholas to assign his said Lease to him, Notice of Trust. after Notice of the Trust, contrived a conveyance of the premises from Tracy to him the said Astrey by way of Bargain and Sale Enrolled, so that Astrey pretends himself a Purchasor of the premises from the said Thomas Roberts, and not under the said Deed of Trust, or Lease and Assignment, and pretends the Trust is destroyed, the said Conveyance being not Enrolled, whereas the said Deed was well executed, and the Trust accepted, by which the said Deed cannot in Equity be made void until payment of the said debts. The Defendant Astrey insists, Deed in Trust to pay debts, tho' the Creditors are not Parties, and no Certainty of Debts therein appearing; yet good against an after-Purchasor, who had Notice of this Trust. That the Deed to Tracy for the payment of debts was a void Deed, as against a Purchasor, there being no Creditor party or privy thereto, nor any Schedule of Debts thereunto annexed, and that the said Conveyance was voluntary, and made only between Roberts and his Wife, and Tracy, and the Creditors not parties thereto; and that by the said Conveyance, Roberts was to have all such Money out of the premises, from time to time, as he thought fit for the livelihood and subsistence of himself, his Wife and Family, and that the said Conveyance to Tracy being voluntary, Voluntary Conveyance. and in its nature but in Trust for Roberts, and Revokable by him after the Conveyance to Astrey; and Roberts having exhibited a Bill against Tracy, to set aside the said Conveyance, Tracy surrendered the same to Roberts, who Revoked it, and both Cancelled it; and afterwards Roberts and his Wife conveyed the premises to Astrey, and levied a Fine thereon. But the Plaintiff insists, That after the Conveyance to Tracy was made, he declared he would pay the Plaintiffs debts, which is proved by the Plaintiff Sir John Knight. The Defendant insists, One of the Plaintiffs a Witness. Deposition. That Sir John Knight is interessed and entitled to some of the debts in question, and continued a Plaintiff throughout the Cause, and is not struck out of the Bill, and is but a single Witness, and his Evidence denied by the Defendants Answer, and therefore his deposition ought not to be read. This Court declared, They would see Precedents where a Conveyance made voluntarily for payment of debts, and no Creditors named or appearing in any fixed certainty of the persons, and with a Proviso for the Grantor to have Maintenance out of the premises, conveyed for himself and Family, without limitation of how much; whether such Conveyance be Revokable by the Grantor and Grantee. This Court, with the assistance of the Judges, were clear of Opinion, That the Deed from Thomas Roberts to Tracy, and the Trust thereby created, were made and treated with an honest Intention to pay the debts of the said Thomas Roberts, and that the same was not fraudulent, Fraudulent Deed, or not. though no certainty of the debts appear therein; but the same being made on a Trust, which was a good foundation, and a just and honest Consideration, and none of the Creditors complaining of any fraud, the same aught to be taken as a good Deed, and the Defendant Astrey coming in under this Deed, and having Notice of this Trust, and paying the debts under it, aught to receive no countenance in this Court, but the Estate ought to be charged with the same, in whose hands soever the same shall come, and decreed the Deed of Purchase from the said Roberts to Astrey be set aside, and Astrey to account for the Profits, etc. and the Plaintiffs, and all the Creditors, to be paid their debts out of the said Estate. Eyre contra Good & al', 21 Car. 2. fo. 211. THe Bill is to be relieved against a Bond of a 1000 l. Award. penalty for the performance of an Award, whereby possession and profits of Lands are awarded to the Defendant. The Defendant insists, That there was no surprise in the said Award, but the said Award was by the direction of the Plaintiffs Friends, and says, it ought not to be set aside, which if it was, it would involve many Suits; and insisted, That the said Award is in the nature of an Agreement, and aught to be performed. This Court taking Notice, Cross Bills about the setting aside or confirming an Award dismissed, and sent to Law. that the Award in question was not made by the Order of this Court, but that it proceeded from the voluntary Submission of the parties; two Judges being chosen by themselves, who declared their Opinion, That they saw no cause to decree the Award to be set aside; nor on the other side to confirm it, or to relieve the Plaintiff; but ordered both Bills to be dismissed, the Plaintiff electing to go to Law: This was heard by Justice Tirrel. This Cause came to be Re-heard before the Lord Keeper, being assisted with Judge Wild, who confirmed the Order above. Hale contra Acton, 21 Car. 2. fo. 409. THat Edward Eltonhead by his Will gave the Defendant Mrs. Gilbourne 1000 l. to be first paid after his debts, besides a Share out of the dividend of the Estate, when as after the making the said Will, the said Edward Eltonhead and Henry Gilbourne, Father-in-Law to the Defendant Mary Gilbourne, before her Marriage came to an Agreement, for what the said Mary should have out of the said Estate, and that there should be but 1100 l. and the same was to be in full of what was intended her thereout, and that the said Edward Eltonhead often so declared, and in his life-time paid 500 l. and after his death his Executor paid 100 l. more in pursuance of the said Agreement, Devise by Will, and an Agreement about a Portion, not intended several Sums. so as the chief Point then controverted being, whether the said Defendant Mrs. Gilbourne ought to have the 1100 l. Portion, and 1000 l. Legacy, mentioned in her Father's Will, or that he intended to give her any more out of his Estate than the said 1100 l. The Master of the Rolls declared, That the 1100 l. aught to be in full of what the Defendant Gilbourne was, and aught to have out of the said Estate, and decreed accordingly. This Cause came to be Re-heard before the Lord Keeper Bridgman, who declared, He saw no cause to alter the said former Decree, and so confirmed it. Brabant contra Perne, 21 Car. 2. fo. 146, & 344. DEpositions of Witnesses under the Hand of a Six-Clerk, then in a Cause between Butt and Perne, about Thirty years since, the Plaintiff in this Cause prayed the same might be recorded; the Record of the Original Depositions in that Cause being lost. But the Defendant Pernes' Counsel insisted, Copies of Depositions, not to be recorded or exemplified. it would be of dangerous consequence and precedent, to suffer Copies of Depositions to be Recorded, and used as Evidence in case of Title of Land, there being no Cause in Court or parties to the said former Suit, there being since the dismission of the said former Suit two Trials brought by the said Butt concerning the said things in question, upon both which two Nonsuits passed against the said Butts Title, the Witnesses which were examined in this Court being all then living, and two Verdicts upon full Evidence on both sides; and one other Verdict since 1664. hath been found for the Defendant's Title against the now Plaintiffs Title, and some of the Witnesses at the said Trial have sworn otherwise than is expressed in those Copies of the Depositions, which the Plaintiff would have now recorded and exemplified. This Court would not allow the said Copies of the Depositions to be recorded or exemplified, but they being before Ordered so to be by the Master of the Rolls, it is Ordered they shall be vacated and made void and canceled, and taken off the File. Alexander contra Alexander, 21 Car. 2: fo. 324. THe Suit is, Assets. to discover the Estate of Richard Alexander deceased, which is come to the Defendants hands, to satisfy a debt of 300 l. due to the Plaintiff from the said Richard Alexander. The Defendant insisted that the Plaintiff ought not to have Relief in this Court, in regard the Assets in the Defendants hands were legal Assets, and nothing appeared, but that the Plaintiff had her proper remedy at Law, having not proved any thing more to be in the Defendants hands than was confessed in the Defendant's Answer. But the Plaintiff insisted, Bill to discover Affets. That this Court hath directed Accounts in cases of this nature to avoid circuity of Action, and further charge and trouble of Suits; and that this Court being possessed of the Cause, and the parties at Issue on Proofs, the same was as proper for this Court, as at Common Law. This Court ordered Precedents to be searched, where this Court hath directed Accounts and given Relief in this Case, and the Cause coming to be heard on the Precedents and Merits thereof; and the Plaintiffs insisted, that there is sufficient Assets of the said Richard Alexander come to the Defendants hands, to satisfy the Plaintiffs debt with Overplus. This Court decreed the Defendant, to come to an Account for the Estate of one Blackhall, unadministred. Yate contra Hooke, 21 Car. 2. fo. 939. THat John Helena, on the 23d Dec. 1654. Mortgage by demise and re-demise. for 2000 l. mortgage Longs Court and other Lands to Jasper Edward's, his Executors, Administrators and Assigns for 99 years, and the said Edward's on the 25th of Dec. 1654. redemised the same to the said John Helena for 98 years at a Pepper Corn Rent, on Condition, That if the said John Helena, his Heirs, Executors, Administrators and Assigns, did not pay to the said Jasper Edward's, his Executors, Administrators and Assigns 2150 l. at a certain day therein mentioned, that then the said Re-demise to be void, and Covenanted for him, his Heirs, Executors and Administrators, to pay the same accordingly; and in Hillary Term 1654. the said John Helena acknowledged a Judgement of 4000 l. to the said Jasper Edward's, for the performance of the Covenants in the said Demise and Re-demise; and after, in 1656. the said John Helena for 500 l. mortgaged the said premises to Joseph Jackson, his Executors, Administrators and Assigns, reciting the said Mortgage to Jasper Edward's, to have and to hold the said premises to the said Joseph Jackson, his Executors, Administrators and Assigns, for the residue of the said term demised to the said Jasper Edward's, and to hold the Reversion to the said Joseph Jackson, his Heirs and Assigns, for the use of the said Joseph Jackson, his Heirs and Assigns for ever, on Condition, That if the said John Helena, his Executors, etc. paid to the said Jackson, his Executors, etc. 515 l. in June next following, than the said Deed of Mortgage to be void, and the said John Helena to Re-enter, as in his former Estate; and the said John Helena Covenanted with the said Jackson, his Heirs, etc. to pay the said 515 l. and for further confirmation, granted to the said Jackson all his Equity of Redemption; and afterwards the said Edward's and Helena for 2000 l. paid by Jackson to the said Edward's, the said Edward's and Helena assigned the said premises to Jackson, with Condition or Proviso, That if the said Helena, his Heirs or Executors, should pay to the said Jackson, his Executors, etc. 2060 l. then the said demise from Helena to Edward's to be void; and afterwards in 1657. Edward's assigned the said Judgement of 4000 l. to the said Jackson, his Executors, etc. and the said Helena in 1660. died, leaving the said Defendant Sir Thomas Hooke his Nephew and Heir. And the said Jackson having made his Will, and devised to his Daughter Sarah, Wife of the Defendant Alford 2000 l. and to the said Joseph Jackson his Son 2000 l. with his Lands, Tenements, etc. and to the Heirs of his Body; and for want of Issue, than the one half of his Lands so given to his Daughter Ann Yate, and the other half to his Daughter Earl, and the Issue of their Bodies equally; and that in case his personal Estate fell short, than every Legatee to abate in proportion to make it up the one half, and the other half his Son Joseph should make good out of what he had bequeathed to him, and made the Defendants Yate, Earl and Aldworth Executors; and if his Estate should amount to more than he had bestowed, then that the said Joseph and Sarah should have the one half of it, and his Son Yate and his Wife, and his Son Earl and his Wife, and what Child he should have living at his decease, the other half: Afterwards the said Joseph Jackson, having in his Account accounted the said Mortgage Money as part of his personal Estate in 1661., died, leaving the said Joseph Jackson his Heir; that no Entry had been made either by the Testator in his life time, or by the said Joseph his Son and Heir, upon the said mortgaged premises; but the said John Helena and Sir Thomas Hooke had received all the Rents and Profits. So as the Question was, Whether the said Mortgage Moneys are due and payable to the Heir or Executor of the said Testator Joseph Jackson. This Court upon reading the said Deeds and Will, Mortgage-Mony payable to the Executor, and not to the Heir, by several good circumstances in the Conveyances. conceived that there was no question in the Case, but that the said several Sums of 2000 l. and 500 l. being the Mortgage-mony, aught to go not to the Heir, but to the Executors, and to be accounted part of the Testators personal Estate, he having by his Will given his real Estate by Name to his Heir, besides his Portion of 2000 l. and one 4th part of the Overplus of his personal Estate, the rather, for that it was not in the power of the Heir to discharge the Judgement or the Mortgage, and the Moneys by the several Prouisoes being made payable to the Executor, and not to the Heir; and the Original Mortgage being but for years, though altered by Act in Law, and the Testator having by Will charged the Lands devised to his Heir to supply the deficiency, if the personal Estate should not be sufficient: Whereas, if he had not taken the Mortgages to be part of his personal Estate, he would have supplied the same out of the Mortgages; and decreed Sir Thomas Hooke to Redeem, and he pay the Plaintiffs, the Executors, the Mortgage-Mony with Interest. Tolson contra Lamplugh, 21 Car. 2. fo. 786. THe Plaintiff prays liberty to make use of Depositions taken in a former Cause, wherein Henry Tolson, Depositions taken in a former Cause made use of. the Plaintiffs late Father deceased, was Plaintiff against Abraham Molline and his Wife, and Mr. Winstanley, Defendants. The Defendant Lamplugh insisted, That there is no colour or ground for the using the said Depositions taken in the Cause, wherein the said Henry Tolson was Plaintiff at the Trial, directed those Depositions, being taken in a Cause whereto neither of the Defendants, the Lamplugh's, are parties; and there is more difference of the Title between the Defendants the Lamplugh's, and Mr. Moline and Winstanley, than between the said Lamplugh and the Plaintiff Tolson. The Plaintiff Tolson insisted, That the Defendants the Lamplugh's claimed and derived their Title under Mr. Moline and his Wife, and Winstanley, and so the said Depositions ought to be used at the Trial, which the Defendant denied. This Court declared, That the Depositions in the said former Cause, aught to be used against the now Defendants the Lamplugh's, unless they claim under the said former Defendants; but if they do, than the said former Depositions ought to be admitted as Evidence against them. Hunton contra Davies, 22 Car. 2. fo. 386. THE Bill is for 500 l. Remainder of 2900 l. which Mr. Hugh Ordley was to pay for the purchase of Land to the Plaintiffs Father, which 500 l. was decreed to be paid to one Castle in 1637. for the use of the Plaintiff, which 500 l. and Interest comes to 1184 l. and to have the Defendants the purchasers of the Land to pay it. To which Bill the Defendants, Bill for Remainder of purchase-Mony. Defendant pleads it is 33 years since, and never any Suit for it, but the Land enjoyed, and former parties concerned dead; per Cur ' a good Plea. the Executors of Ordley, pleaded, That Mr. Ordley lived in London till 1662. and the Plaintiff might have had remedy against him, and it being a debt 33 years since, and no Suit commenced against Ordely in his life time, nor any till now, and the Lands enjoyed by others now, and the Defendants the Executors have nothing to show for the payment and Case, and all former parties concerned therein being dead, and therefore after all this time the Defendants hope this Court will not suppose that the said Money is unpaid, or that the Defendants ought to be charged therewith, and the Defendants being Executors and Strangerr to all the Matters aforesaid. This Court held the Plea and Demurrer good. Malpas contra Vernon, 22 Car. 2. fo. 360. A Bill of Review, Bill of Review. to Reverse a Decree, whereby the Plaintiff is decreed to pay more Money than by his Agreement on his Purchase he was to pay. This Court declared, That without a special Agreement at the time of the purchase, for payment of the debt claimed by the Defendant, the Plaintiff ought not to be obliged by the Decree to pay the Defendants, no such Agreement appearing by the Decree, or any Proof offered at the Hearing. The Defendant insisted, That by the Proofs there is an Agreement proved, whereby the Defendant, amongst other Creditors was to be satisfied his debt. Now the Point being, No new Proofs admitted upon a Bill of Review, upon a second Agreement. whether any special Agreement was made for the purpose aforesaid, and the Court had declared no new Proofs could be admitted in the Cause this Court Ordered by consent. That the Cause be heard on the said point of Agreement on the old Proofs, and no other. Comes Castle-Haven contra Vnderhill, 22 Car. 2. fo. 106. THis is a Bill of Review, Bill of Review. to Reverse a Decree in 12 Car. 1. wherein the now Defendant was Plaintiff against the Lady Vice Countess of St. Albon, his Wife and others, Defendants: The points of Error were, That the Decree was grounded on a Bill exhibited by the now Defendant against the said Lady St. Albon, his then Wife, and was made by Consent, without any Judicial Hearing, whereby a Settlement and disposition of the said Ladies Lands, whereof she had an Estate in Fee, was made without any Fine or Recovery levied or suffered, or any other legal Act done, to bar and bind her or her Inheritance, which the said Plaintiff conceives could not be done, the said Lady being a Feme Covert, and could not in Law or Equity consent, nor could her trusties by her consent charge the Inheritance, wherein they had no legal Assurance. The now Defendants insist, That 2 Car. 1. the said Lady St. Albon, after her Intermarriage with the now Defendant, did settle 300 l. per Annum, and several Recoveries were suffered, whereby the same would have come to the Defendant after the said Lady's death, as an Estate in Fee, the said Lady dying without Issue. That afterwards the said Lady and the Defendant came to another Agreement, viz. That the Defendant should have 400 l. per Annum out of the said Lady's Estate, to him and his Assigns for life, and in consideration thereof the said Defendant agreed to quit and debar himself of and from all claim and interest to any of the rest of the said Lady's Estate, real or personal, during their joint Lives, or after her death; and in case of failure of payment, or the said Lady's death, the Defendant was to enter into all the Estate for Satisfaction; which said 400 l. per Annum was settled by Deed Tripartite, 14 Car. 1. and the said Agreement and Settlement was confirmed by a Decree 17 Car. 1. by the consent of all parties, and that the said Lady by Will gave away from this Defendant all her Lands and personal Estate, which the Defendant had given her power to do, and she died, and for Nonpayment of the said 400 l. per Annum the Defendant entered 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 Lady's Estate was in trusties before her Marriage with the Defendant, and so agreed to be continued without his intermeddling therewith, he bringing no Additional Estate to the said Lady, and that there was no Fine levied to the trusties, 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 settled 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 trusties upon the said Recoveries shall convey part of her Land to the Plaintiff Solmes' 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 Lady's death, and presently after there appeared Infancies, which was the reason the said Decree was not sooner impeached. This Court being assisted with the Judges, Bill of Review dismissed, 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 Lady's 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 aught 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 Jointure 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 Jointure on the said Elizabeth; but being disabled to do it, by reason of Dame Ann's Jointure, he being seized 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 Humphrey Lind and George Brett 250 l. per Annum during the said Dame Ann's life, if the said Elizabeth should so long live; and thereupon the said Dame Ann Joined 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 trusties 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 trusties 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, etc. of the said Alexander, to the said Elizabeth, or to the trusties, 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 entered, 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 children's Maintenance, from the death of the said Elizabeth their Mother; and that the said Dame Ann and her trusties 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 premises as joint-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 Judgement 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 Judgement to Richard White in 1644. extended the Defendants Moiety, and brought an Ejectment, and got a Verdict by surprise 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 Judgement 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 aught 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 Money for which the Judgement 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 looked on herself an absolute Owner, and disposed of the said Lease, whereof the said Robert had a Moiety, Lease to commence after failure of payment. and that this differs from ordinary Mortgages, the Lease being to commence after failure of Payment by the Heirs, Executors or Administrators of the said Alexander, and there was no Proviso therein, and that the said Lady Ann in all probability hath paid many Hundreds of Pounds, and Elizabeth might have lived many years longer; and tho' the Lady Ann had paid triple 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 Judgement on the Writ of Partition, and from thence till 1662. which was 20 years after the Plaintiffs Judgement, 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 premises 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 Judgement 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 Judgement entered 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 Judgement, which was entered 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 Rend for the premises, and 10 l. damages for want of Repair of the premises, 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 expressed in the Writ, which is 40 l. Bail to answer no more than what is expressed 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 aught 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 herself 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 premises 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 premises 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 premises 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, etc. That the said Edward and Elizabeth Palmer being dead, Letters of Administration were granted to the Plaintiff Mary, by virtue whereof she is well Entitled to the said premises, 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, aught 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, etc. void in Law. and the Limitation to the heirs Male, or heir General, being a void Limitation in Law, where there is no Executor, the Trust shall come to the Administrator. This Court declared, And the benefit of the Trust belongs to the Executor or Administrator. That both in Law and Equity the benefit of the Trust in such case doth belong to the Executor or Administrator; but the Plaintiff Hunt having married the said Plaintiff Mary, and claiming in right of her who is Administratrx to her former Husband Edward Palmer, the Court thought it hard, that by virtue of the said Administration she should carry away the Estate to her second Husband, and thereby strip the Infant thereof, from whose Father the Estate first moved, and it not appearing that the Ecclesiastical Court, when they granted the Administration, took any Consideration for a distribution to be made for a provision for her, this Court would consider of the Case, and also of the Limitation and Consideration of the said Deed, and deliver their Opinion. This Court being assisted with the Judges, it appearing that the Interest and Estate of the Terms and the Trust and Benefit thereof, is by the death of the said Edward Palmer and his Mother, come to the Plaintiff Mary for her life, and there being but 30 years of the said Term to come, and in regard the Ecclesiastical Court cannot make a distribution of the remainder of the Terms, not knowing but that the said Mary may live till the Expiration thereof. This Court directed the Defendant Jones to assign and transfer the premises and all his Interest therein, The Trustee decreed to assign to the Admistratrix. etc. in the said Terms to the Plaintiff, or such as they should appoint. Darrell contra Whitchot, 20 Car. 2. fo. 516. THe Plaintiff had a Trust in a Lease of a Coal Farm by Patent from the late King, Trust. which Lease was afterwards renewed by the King, and other trusties named therein, and the Defendant being one of the trusties, insists, he was a joint Patentee for the valuable Consideration of 500 l. But the Plaintiff insists, The Defendant comes in as the Plaintiffs Trustee, and not to be subject to the same Trust in the New Lease, as he was under the Old Lease. But the Defendant insists, The New Patent was to the New trusties for Service done by them to this King, and this Defendants 500 l. and this Defendant was not Trustee for the Plaintiff, but was in for his own use, which Patent this Defendant had pleaded, and was allowed. Yet the Plaintiff insisted, An Old Trust contained upon a new Lease or Patent. No Tenant Right against the King. There was a continued Trust, and the Defendant and the King declared, he had a respect for the Old Tenants, and the Defendant coming in under the Tenants Interests, aught to be in Trust for the Plaintiffs, and that tho' there be no Tenant Right against the King; yet the King did consider the Tenants, and that this Case is but the same with that where a Mortgage or Trustee renews a Church Lease, Mortgagee, or Trustee, renewing a Church-Lease, the Cestuy que Trust relieved. Bill dismissed. in which Cases this Court had given Relief. This Court with the Judges declared their Opinion, That there was no ground at all to Relieve the Plaintiff, and so dismissed his Bill. Episcopus Sarum contra Nosworthy, 23 Car. 2. fo. 720. THis Case is touching a Rent of 67 l. per Annum reserved on a Lease of Lands made by John late Bishop of Exon to the Defendant, Arrears of Rent. and the Plaintiff by his Bill says, the Defendant never paid the said Rent to the Plaintiff, nor any part thereof during all the time he was Bishop of Exon, which was for 6 years, whereby a great Arrear is incurred and due to the Plaintiff from the Defendant, for which the Plaintiff seeks Relief. The Defendant insists, That he directly tendered the said Rent to the Bishop, while he was Bishop of Exon, but he refused the same, having an intention to impeach the said Defendants Estate; and now the Plaintiff is Translated to another See, and so he ought not in Law or Equity to demand the said Arrears, but aught to be debarred from receiving the same by his refusal, as aforesaid. His Lordship was clear of Opinion, that by Law the Plaintiff could not recover the said Arrears, but how far the Plaintiff was relievable in Equity was the question, and his Lordship ordered Precedents to be produced, where there hath been a Just duty, but no Legal remedy, and ordered a Case to be stated. It appearing that the Plaintiff, Upon refusal to accept of Rent, no Relief in Law or Equity for the Arrears. while he was Bishop of Exon, would not accept the said Rent, his Lordship, with Judges assisting him, were clear of Opinion, That there was no ground in Equity to give the Plaintiff any Relief, and dismissed the Bill. Barthrop contra West, 23 Car. 2. fo. 744. THe Plaintiffs Suit is to have the benefit and equity of Redemption of Leases mortgaged, Assets. and other Trust Estates, made liable for the payment of his debt, being on Judgement for 2000 l. and to have a voluntary Deed of Trust set aside, as against the Plaintiff. This Court decreed the Plaintiff to have the Equity of Redemption to be liable, Equity of Redemption. Assets. and as Assets to satisfy his said debt of 2000 l. and set aside the said voluntary deed of Trust, and all Trust Estate and Surplus thereof after preceding debts paid, to be Assets in Equity for the payment of the Plaintiff: Hooker contra Arthur, 23 Car. 2. fo. 523. THe Defendant having recovered damages for breach of a Covenant in a Lease, at Law, but the Plaintiff insists, That there is not so much damages due, as the Defendant hath sworn in his Answer, therefore the Plaintiff hopes this Court will reimburse him what is overpaid to the Defendant. This Court declared they would not try nor ascertain the damages in this Cour, The Court of Chancery will not try or ascertain damages recovered at Law. but ordered the parties to Law on the Covenant. Domina Kemp contra Kemp, 23 Car. 2. This is on a Case stated, (viz.) THat upon Articles of Agreement between Sir Robert Kemp and Thomas Steward, Devise. the Plaintiffs Father upon the Marriage of Sir Robert with the Plaintiff; it was agreed 500 l. Marriage portion, should be paid unto Sir Robert or his Executors, and in consideration thereof, the said Sir Robert should settle a Jointure of 200 l. per Annum on the Plaintiff his wife, and if the said Sir Robert should die before such Jointure settled, than he was to have Lands chargeable with the Plaintiff Dower, which should fully recompense the 200 l. and that Sir Robert by his last Will devised to the Plaintiff, a Rent-charge of 200 l. for her life, to be issued out of the Manor of Spenishall and Lands thereto belonging, and of certain Farms called Lininlts and Mortimore, and Ravels, and the Frywoods, in full satisfaction of the said Articles, and all Dower claimable by the Plaintiff, and also devised the said Farms unto the Defendant Mary his Grandchild; To have and to hold immediately after the death of the Plaintiff his Wife, and by a subsequent Clause in the Will, he devised all the Lands (not therein before disposed of) to the Defendant Thomas Kemp, the Father for life, Remainder to Thomas his Son for life, with remainder over; and also gave the Plaintiff his Coach, Horses, Plate and Jewels, etc. and one Third part of his clear Personal Estate: And the Plaintiff conceived, that she ought by the Will to have both the Rent-charge and the Farms for her life by the aforesaid devise, 200 l. Rent-charge devised in lieu of Jointure, and by the same Will an implicit Devise of the Lands to her. Decreed she shall have only the 200 l. per Annum. viz. where the same are devised to the Defendant Mary, To have and to hold after the Plaintiffs death, so to have the same by the said implicit Devise, without Extinguishment of the said Rend charge is the Plaintiffs suit. This Court declared, they saw no Cause to decree both the Rend charge, of 200 l. per Annum, and the Farms aforesaid, to the Plaintiff, but the Rend charge of 200 l. per Annum to the Plaintiff only. Boucher contra Antram, 23 Car. 2. fo. (97.) THe Bill is, Will. That Alice Lowman the Plaintiff Katherine's late Mother, did in Decemb. 1669. by Will give and dispose unto the Plaintiff Katherine a Legacy of 160 l. and made the Plaintiff, who married another of the Daughters, Executor. The Defendant insists, That the Testatrix made her Will in these words, viz. Item, I give unto my Daughter Katherine Boucher the sum of 160 l. for her to have the use of it during her life, and her Child or Children to have it after her decease; but if she happens to die, leaving no Child surviving her, I Will that the said 160 l. shall be to and for the sole benefit and use of my Daughter Elizabeth Antram and her Children, which Elizabeth is the Defendants Wife, and the Defendant is willing to pay the said 160 l. to the Plaintiffs, or either of them, he being secured against the title and claim of the surviving Child or Children of the Plaintiff Katherine, and if she should die leaving no Child or Children behind her, then against the Title of said Elizabeth and her Children. This Court decreed the Defendant to pay unto the Plaintiff 160 l. with full Interest; Personal Estate devised to one for life, and after to her Children; and if they have no Issue, the Remainder over, is a void Devise as to the Remainder. but as to the Clause on the Will which directs, That for want of Issue by the Plaintiff Katherine, the said 160 l. after her decease shall be to and for the benefit and behoof of the Defendants Wife and her Children. His Lordship declared, it being a Personalty, is in the nature of a Perpetuity and so a void devise, and therefore the Defendant, nor his Wife and Children, aught to have any benefit thereby, but be debarred from the same, and that the said 160 l. aught to be absolutely vested in, and come unto the Child or Children of the Plaintiff Katherine, and decreed the same accordingly. Chambers contra Greenhill, 24 Car. 2. fo. 288. A Bill of Review brought by the Plaintiff, Bill of Review, because the Plaintiff can now prove a Tender and Refusal, which he could not prove before, dismissed. to Reverse the Decree in this Cause, the Plaintiff would now Examine to a matter of Tender and Refusal, which he could not prove before the Hearing, but since the Decree signed and enrolled he can prove it. The Court ordered Precedents to be searched, which being produced by the Plaintiff, his Lordship declared the said Precedents seemed of no weight to the Plaintiffs purpose, and dismissed the Bill of Review. Croster contra Wister, 24 Car. 2. fo. 688. THe Defendant insists, Bill of Reviver. The Plaintiff ought not to have brought a Bill of Reviver in this Case, but to have taken out a Subpoena in the nature of a Scire facias to revive the Decree, the same being signed and enrolled in the life time of the Plaintiffs Testator; therefore the Defendant demurs to the said Bill. The Plaintiff insists, It is at the Plaintiffs election to revive the said Decree enrolled, and to have Execution thereof by Bill or Subpoena in the nature of a Scire fac ': And as this Case is, the whole Proceed could not be revived by Subpaena, Revivor by Bill, or by Scire fac ', when proper. in regard several Proceed have been relating to Costs since the Decree, which proceed can be only revived by Bill, and therefore the most proper course was, to revive all things by Bill. This Court held the said Bill to be well brought, and held the Demurrer insufficient. Stoell contra Botelar, 24 Car. 2. fo. 390. THat a Writ of Supplicavit of the Peace, Supplicavit of the Peace on Petition, and not on Motion nor any Endorsement on the back thereof; yet good. issued against Sir Oliver Botelar, upon a Petition and Articles exhibited by the said Stoell. The Defendant insists, The said Writ issuing on Petition, and not on a Motion in Court, nor any Endorsement made on the back of the Writ, as by the form of the Statute is required, and but three of the said Articles are sworn to by the Articulate, so it is irregular. This Court on reading Precedents, notwithstanding the Objections aforesaid of Botelar, was fully satisfied, that the Supplicavit was well granted and warranted. Monnins contra Dom' Monnins, 24 Car. 2. fo. 85. (178.) BILL is to have the Defendant to discover, Demurrer to a Bill for discovery, whether the Defendant be married or not, good; for that if she be married it would be a forfeiture of her Estate, and the Bill dismissed. whether she be married since the death of Sir Edmond Monnins her late Husband: The Defendant demurred, for that in case she was married since the death of her said Husband, the same amounts to a forfeiture of her Estate and Interest in several goods and things, devised to her by the Will of her said Husband, to be held and enjoyed by her during such time as she should continue her Widowhood, and so ought not to discover as aforesaid. This Court held the Demurrer good, unless the Plaintiff produced Precedents, which the Plaintiff could not; so the Bill was dismissed with Costs. Warren contra Johnson, 24 Car. 2. fo. 543. THat Mary Warren, Money in Trust for the Children of I. S. it shall be for the benefit only of the Children that he then had, and not born afterward. the Plaintiffs Grandmother, put 60 l. into the Defendants hands in trust, for the benefit of the Children of Mark Warren her Son, who at that time had but three Children, whereof the Plaintiff was one; but now hath six Children. This Court is of Opinion, That the said 60 l. belonged only to the Children of the said Mark Warren, which he had by his then Wife at the time when the said Money was given, and decreed the same accordingly. Wallop contra Dominam Hewett, 24 Car. 2. fo. 218. THe Plaintiffs Henry and John Wallop seek Relief for 400 l. Legacies given by a Will and a Codicil, and are distinct not one and the same. viz. 200 l. apiece Legacy, given them by the Will and Codicil of the Lady Crofts. The Case is, That the Lady Crofts by her Will gave the Plaintiffs 100 l. apiece, and afterwards by a Codicil annexed to her Will gave the Plaintiffs 100 l. apiece. The Question is, Whether the said Legacies so given be one and the same, or distinct and several Legacies, or what her Intention was in reference to the same, and desire the Judgement of the Court therein. This Court, with the Judges, on Reading the said Will and Codicil were of Opinion, and satisfied, That the said Legacies in the said Will and Codicil mentioned are not one and the same, but distinct and several Legacies of 200 l. and decreed the Defendants to pay the said Plaintiffs 400 l. thorn contra Newman, 24 Car. 2. fo. (371.) & 24 Car. 2. fo. 8. THat Nicholas Burnell, Deed of Revocation. Father of the Defendant Margaret Newman being seized of the premises in 1652. demised the same to Elizabeth Stone for 99 years at a Pepper-Corn, with a Proviso to be void on payment of 590 l. and the said Elizabeth died and made Elizabeth Wheat her Executrix, and Thomas Baker marrying the Defendant Margaret Newman in November 1657. Elizabeth Wheat and the said Nicholas Burnell Assigning the premises to Thomas Baker, and the said Baker for 500 l. borrowed of the Plaintiff, Assigned to one Minterne in Trust for the Plaintiff in 1659., and Baker failing in payment contracted with the Plaintiff for 770 l. more, that he would give his Interest in the premises absolutely, without any power of redemption, and Baker and Minterne did join accordingly in 1660. And the Plaintiff insists, That the Defendant claims the premises by a Deed dated the 19th of August 1659. whereby it is pretended, That by Indenture made between the said Old Burnell of the one part, and Thomas Lewis and Bartholomew Pickering of the other part, the said Burnell in Consideration of the Natural love and affection to the said Margaret, and for the settling and confirming of the premises for the uses therein, and for 5 s. Covenanted to stand seized of the premises to himself for life, Remainder to the Defendant Margaret for life, then to the Wife of the said Thomas Baker, Remainder to the Heirs of her Body, with Remainders over, and the said Burnell dying in 1659. the premises then vested in Margaret, and that Baker in her Right became seized of the Freehold thereof, and that thereby the Remainder of the said term of 99 years was drowned, Term drowning in a Freehold. and so the Assignment to Minterne, and the Assignment by Baker and Minterne to the Plaintiff was void, and so the Plaintiff a purchaser for 1300 l. like to be defeated. And the Plaintiff further insists, That if the said Deed were ever sealed, it is with a Proviso of Revocation, to be void on payment or tender of 12 d. to Lewis or Pickering, or either of them in the Middle-Temple-Hall, and that Burnell did tender 12 d. to Lewis with intention to make void the said Deed, and declared so to Lewis, that she did revoke the said Deed, and pulled the Seal off from it, and that a Memorandum was Indorsed on the backside of the Deed, That there was 22 Octob. 1659. 12 d. tendered to Lewis to revoke the said Deed; but the Defendants pretend, because the 12 d. was not tendered in the Middle-Temple-Hall, therefore the Revocation was not legal, and so the said Deed still in force, and the Plaintiffs Estate drowned. The Defendants admit the Case to be as aforesaid, but insist, That the said Deed 19 Aug. 1659. was intended for a Settlement on the Defendant Margaret, for a provision for her after the death of the said Baker her Husband, he having not made any Jointure, and that the said Defendants claim the premises by the said Deed, whereby immediately upon the death of Burnell, the Freehold of the Premises vested in Baker in right of the said Margaret his Wife, and so the Plaintiffs Estate was drowned, and that Baker was not by intention of the said Deed, to sell away the premises for any longer time than his own life without the said Margaret's Consent, and Joining with him in a Fine thereof. And the Defendants further insist, That the 12 d. aught to have been tendered in the Middle-Temple Hall, else the Deed must be in force; and if any Memorandum or Declaration were made, as aforesaid, the same was done out of design only, to have the said Baker make the said Margaret a Jointure. But the Plaintiff insists, That he ought to hold the said premises for the residue of the said term for 99 years against the said Deed. This Court was satisfied, That the Plaintiff ought in Equity to enjoy the premises against the Defendants, Voluntary Deed set aside against a purchaser. and that the said Deed ought to be set aside, as against the Plaintiff; but the Defendants are to redeem. The Bill being to set aside a pretended voluntary Conveyance set on foot by the Defendant, Conveyance with power of Revocation on payment of 12 d. at such a place, 12 d. was tendered at another place, with express declaration to revoke the Deed. which Deed is with power of Revocation upon the tender of 12 d. and the 12 d. was tendered accordingly with intent to revoke the said Deed, and the said Deed is accordingly Canceled; but the Defendants, in respect the 12 d. was not tendered at the place appointed, set the said Deed up at Common Law, and upon a Trial at Law, without any defence made by the Plaintiff, the Defendants were Nonsuited, and the Plaintiff being a purchaser of the premises, first by Mortgage for 500 l. and afterwards by absolute Assignment for 770 l. more. The Lord Keeper, upon reading the said Canceled Deed, saw no cause to alter the Master of the Rolls his Decree aforesaid, but ordered the same to stand Confirmed. Comes Sterling contra Levingston, 24 Car. 2. fo. 113. & 432. THat Sir Peter Vanlore the Elder being seized in Fee of the Lands, by Deed Covenanted to stand seized thereof to several uses, under which all parties to the Suit claim several parts of the premises; and here being a Proviso in the said Deed, That if young Sir Peter Vanlore, or the Issue (whose Issues and Heir the now Plaintiffs are) should attempt to impeach the said Settlement, that then the uses to him and them limited by the said Deed should be void, and that by the death of several persons, several parts of the premises were accrued to the said Plaintiffs, but that by reason of the said Proviso and several Ambiguities in the said Deed, it was doubtful to what parts the Plaintiffs, Settlement with Proviso not to attempt the impeachment of it. Court dirccted a Trial at Law, and that the Trial should be no forfeiture. the Heirs general, were entitled unto, so to be protected against the said Proviso, and to have the partition of the Lands is the Bill. His Lordship declared, it was most fit that a Trial at Law be had touching the Plaintiffs Right and Title, and that such Action to be brought shall not be taken or construed a breach of the Proviso aforesaid, or forfeiture of the Plaintiffs Right and Title to the premises. Smith contra Sallett, 24 Car. 2. fo. 382. THe Bill is to have an Issue directed by this Court, to try whether the Fines of the Copyholders, due to the Lord of the Manor, were certain or arbitrary. The Defendant insisted, Fines of Copyholder, whether certain or arbitrary; it having been tried at Law, the Court would not relieve the Plaintiff, other than for the preservation of Witnesses. That there had been several Trials already, and Verdicts have passed for a Fine certain, and particularly, one in Ejectment before Mr. Justice Windham, and another before the Lord Chief Justice Hales upon a Special Issue, directed out of the Exchequer, Whether the Fines were certain at 8 d. an Acre, and 8 d. a Cottage, or not? And a Verdict passed on both Trials for a Fine certain. This Court declared, They could not relieve the Plaintiff in Equity, other than for the preservation of Testimony, and dismissed the Plaintiffs Bill. Lewis contra Lewis & al', 24 Car. 2. fo. 664. This is on a Case stated, viz. THat the Lord St. Will. John and his trusties demised a Lease on the premises for 99 years, unto the Defendant Turner, if the Plaintiff Alice, than Wife of Dr. William Lewis, and Theodore Lewis Son of the said Dr. Lewis, and one Feilder, or either of them should so long live. That this Lease was made at the nomination of, and in Trust for the said Dr. Lewis: That after in July 1666. the Doctor made his Will, and as to the premises devised them to the said Alice for life, and after her death then to the said Theodore Lewis, to be disposed of as the said Doctor shall appoint them by his Will in writing or Deed, and of his Will made the said Alice his Executrix: That in March 1667. by a Declaration in writing, to which the said Doctor and the Defendant Turner are parties, and executed by them both, the Trust of the premises was thus declared, viz. for the said Doctor for life, afterwards for such person or persons as the said Doctor by his Will or Deed should appoint, and in default then for the Executors or Administrators of the said Doctor: That in July 1667. the Doctor died without making any other Will or Deed, or other Appointmen, for the disposing of the premises: That Alice, by virtue of the said Will and Deed, entered and possessed the premises: That it appears also in the Case, Parol Declaration of ones Intent, not good against a Declaration in writing. some Proof was offered touching a Parol Declaration of the said Dr. Lewis his Intention, that the Son Theodore should have the benefit of the said Lease; but that being by Parol against a Declaration in writing, the Court conceived it not material in the Case; and that it is also in the Case, that the said Theodore claimeth so much of the term as should be behind at the death of the said Alice, and that the said Alice claims the whole term, as Executrix to the said Dr. Lewis. The Court at the first Hearing was assisted with the Mr. Justice Atkyns, Trust of a term devised to J.S. and then to J. D. to be disposed of as the Testator should appoint by his Will or Writing. He makes a Writing, and declares it to himself for life, and after to such persons as he should by Will or Deed appoint, and for default of that, to his Executors, and made no other Will or Deed, the Executor shall have it. who inclined to be of Opinion for the said Theodore, and that the said Defendant Turner, the Trustee, aught to execute the Trust for him: But his Lordship differing in Opinion, and having since advised upon the Case with Mr. Justice Windham, and several other of the Judges, who were all clear of Opinion, That according to the Declaration in writing, the Plaintiff Alice, the Executrix, is well entitled to the benefit of the said Lease. This Court therefore doth decree, That Turner the Trustee do execute the trust, and convey and assign the said Lease, and the remainder of the term therein, to the Plaintiff Alice or whom she shall appoint. Launce contra Norman, 24 Car. 2. fo. 233. THe Plaintiff Lance his Suit is, Recognizance. that the day before the Marriage of the Plaintiff and his Wife, the said Plaintiffs Wife was persuaded to enter into a Recognizance of 2000 l. without defezance to the Defendant Norman, being the Plaintiffs Wives Brother, to which the Plaintiff was not privy or consented, which Recognizance the Plaintiff seeks to have set aside and vacated. The Defendant Norman insists, That the Plaintiff was Suitor to his Sister designing to gain her Estate, but she not likely to have Children, intended the said Defendant Norman part of her Estate; and upon that account gave the said Recognizance, and at that time the said Norman was in the Country, and no ways knowing of it, nor had contrivance in it, but the said Plaintiff proving unkind to his Wife, and turned her out of doors, and parted with her, not making any provision for her; This Defendant hath put the same in Suit. The Plaintiff insisted, that his said Wife voluntarily absented from him, and took and conveyed awaygreat part of his Estate, and hath acted as a most insolent and undutiful Wife, and entered into the said Recognizance without his privity. This Court being assisted with the Judges was satisfied, that the said Recognizance was entered into the very day before Marriage without defezance or the Plaintiffs privity, whereby to defraud the Plaintiff, and one witness only deposed the Plaintiffs consent to the drawing the said Recognizance, who hath an Assignment of the same to himself. The Court decreed the said Recognizance to be set a side, A Recognizance entered into by the Wife the day before Marriage, set a side and a perpetual injunction. and vacated on the Record thereof, and a perpetual injunction is granted against it, and this Court proposed on the said Plaintiffs Wives returning back all the Estate which she took and conveyed away, that the Plaintiff do allow her 20 l. per Annum, which was consented to by the Plaintiff, for her separate maintenance. Howard & Vxor contra Hooker, 2 Car. 2. fo. 587. BIll is to set aside a Deed made by the Plaintiff Eliz. in Feb. 1666. Frandulent Deed. before her Marriage with the Plaintiff Sir Philip Howard, and that the Plaintiff Sir Philip, in right of his said Wife might have all her benefit and interest in or to the Estate of Sir John Baker her former Husband, and receive the Rents and profits of the premises. The Case being, that Sir John Baker the Father being seized in Fee of Lands by two Deeds Tripartite of Lease and Release made between himself of the one part, Sir Robert Newton deceased of the second, and Sir John Baker the Son and Dame Eliz. the Plaintiff, and sole Daughter of Sir Robert Newton of the third part, in consideration of a Marriage between the Plaintiff Dame Eliz. and Sir John Baker the Son, and 4000 l. portion, conveyed the same to Sir Robert Newton and his Heirs, part of which Lands were for the said Dame Eliz. Jointure; and Sir John Baker the Father, and Dame Mary his Wife being dead, Sir John the Son sold part of the premises for payment of debts, part whereof was the Jointure of Dame Eliz. and in consideration of the said Dame Elizabeth joining in such sale, and parting with her Jointure, Sir John her Husband in lieu thereof, and of 1500 l. to be paid to Dame Elizabeth for a Jointure house, limited the premises unsold to the said Dame Elizabeth and the Defendants for 400 years upon Trust, by Sale thereof to pay the said Dame Elizabeth the said 1500 l. and also the Rents and profits of the whole until Sale, and the residue of the said premises remaining unsold to Dame Elizabeth during her life, and after to wait on the Inheritance. And in 1658 the Inheritance was conveyed to Sir Robert Newton and his Heirs, and he by Will devised the same to the said Dame Elizabeth for life, Remainder to the first Son of the Plaintiff Sir Philip and Dame Elizabeth; so the Plaintiff being entitled to the 1500 l. and the term of 400 years after the Trusts performed, and so ought in right of the said Dame Elizabeth his Lady, to continue in the possession of the premises, and receive the Rents and profits thereof, which the Defendants refused to do, pretending the term of 400 years is limited to them upon other Trusts, and in particular that the Plaintiff Dame Elizabeth before her Marriage to the Plaintiff Sir Philip, by her Deed of the 9th of February 1666, Assigned to the Defendants all moneys then due, or to be payable to her by virtue of the Deed in Trust for her benefit, and to be at her disposing during the Joint lives of her and the said Sir Philip, whether she Married or continued Sole, and that she should have power by writing under her Hand and Seal to dispose thereof, for the benefit of her Daughter by her former Husband, and that she hath disposed thereof accordingly, which said Deed the Plaintiff insists is fraudulent or with power of revocation, and never mentioned to Sir Philip, and that Sir Philip after his Marriage settled 500 l. per Annum, on the said Dame Elizabeth for a Jointure, which he would not have done, if he had known or understood the said Dame Elizabeth had made such Deed or disposition as aforesaid of her former Husband's Estate; and since their Marriage she desired leave of Sir Philip that she might receive the Rents and profits of the said Lands of her former Husband without mentioning the said Deed, and therefore the same aught to be set aside. The Defendants do insist, the said Dame Elizabeth before her Marriage with the said Philip did declare to him that who ever did Marry her should have no benefit of any Estate that she had by her former Husband, and that Sir Philip did agree to bar himself thereof, and take no benefit thereby, A Widow makes a Deed of her former Husband Estate and marries, the second Husband not privy to it; the Deed set aside, and the second Husband to enjoy the Estate. and that Sir Robert Newton looking upon the Estate as settled on his grandchildren as aforesaid, and had given his personal Estate and 700 l. per Annum to the Plaintiffs and their Sons, and the said Sir Robert Newton never pretended right to the said Estate, or intermeddled therewith, that there is no reason to set a side the said Deed of the 9th of Feb. aforesaid. This Court being assisted with the Judges on reading the said Deed, it not appearing unto this Court that the said Sir Philip had any notice of the said Deed 9th of Feb. 1666. till after the death of the said Sir Robert Newton, which was several years after the Marriage, nor was privy or consented to the making of any such Deed; but having intimation that Dame Elizabeth intended to dispose of her interest in her former Husband's Estate, from such Husband as she should Marry, broka off the treaty of Marriage, which was afterwards brought on again by some Friends of the said Dame Elizabeth, and that the said Sir Philip was induced to Marry the said Dame Elizabeth, upon the hopes and confidence of having the interest she had in the Estate of the said Sir John Baker her former Husband, without which he would never have married her, and that the said Sir Philip never knew of the said Deed of the 9th of Feb. 1666, but the same was a fraud upon Sir Philip, and that therefore no use ought to be made thereof and decreed the said Deed of the 9th of Feb. 1666, be absolutely set aside, and no use to be made thereof against the said Sir Philip, or any claiming under him. Poter contra Habbert, 24 Car. 2. fo. 591. THis Bill is to have a redemption of a Mortgage made in 1636, Mortgage. by the Plaintiffs Father, to one Abraham Daws for 5000 l. and for nonpayment of the Mortgage money, Sir Thomas Dawes Son and Heir of the said Abraham Dawes, entered in 1641, and he and his Assigns have ever since taken the profits. And the Defendant insists, that the said Thomas Daws in 49 conveyed the mortgaged premises, to Hugh Hubbert the Defendants Father for 7000 l. and that in 1641, when Sir Thomas Dawes entered there was 5000 l. due on the Mortgage besides interest, so he would be charged without 350 l. per Annum, for mean profits since that time, and would have 6 l. per Cent. Interest for the 7000 l. from the time it appearing on the conveyance. This Cause being first heard by Judge Ransford, who ordered the Plaintiffs to redeem, Computation of interest moneys according to the Statute in force. and the account for the Interest of the 500 l. to begin from 1636, the time of lending the money, and from that to 1642 Interest to be paid according to Acts then in force, and from 42 to 46 Interest at 8 l. and 4 l. per Cent. The Cause being heard again by the Lord Keeper Bridgeman, assisted with Judge Tyrrle, Morton and Wild, who ordered the Plaintiff to pay interest for for the 5000 l. to 1641 at 8 l. per Cent. and from 41 to 49, the certain profits of the Mortgaged premises 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 Controversy being, Whether the certain Profits of the premises 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 Precedents was clear of Opinion, The certain Profits of the premises, set against the Interest. That the Setting the certain Profits of the premises against the Interest from 41 to 49, aught to be discharged, and decreed the same accordingly. And touching that Point, for what moneys 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, entered 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 Judgement after upon it, and the Principal and Interest far surmounted the Penalty when Judgement was entered; how payment of Monies shall be applied in such case. and had Judgement thereupon against the Plaintiffs Father only, and the Principal and Interest due on the said Bond far surmounting the Penalty when Judgement was obtained, and the Defendant being 20 years kept out of his Money, but having received several Sums in part since the Action at Law brought, it was decreed, That whatever Monies were received before the Judgement actually entered, should be taken in discharge of the Interest of the said 1000 l. Original debt, and that the Defendant should be satisfied after the Judgement entered, the whole Money thereupon recovered with damages from the time the Judgement was actually entered, deducting what he had received since the actual entry of the Judgement, and allowing his Costs at Law, and moderate Costs in this Court: And it was found, that the Judgement was not actually entered till the Vacation after Michaelmass Term 1662. and so only 250 l. paid in November 1662. Whether Money paid shall be applied to discharge Interest of the Original debt, or towards satisfaction Recovered by Judgement on the same Bond. Judgement, when said to be entered. was accounted Interest of the Original debt, and not towards the Money recovered by the Judgement, and the Account was so settled and decreed, and the Money 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 King's Bench, it being by the Decree admitted, that the said Judgement was entered in the Vacation after Michaelmass Term 1662. and not before Whereas it is evident by the Records of the Kings-Bench, the said Judgement was entered 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 moneys paid after the first day of that Term, aught in Equity to be applied towards satisfaction of the Judgement, and so the 250 l. paid in November 1662. in part of a debt in question ought not to go to satisfy the Interest, but in part to discharge the Principal. The Lord Chancellor Shaftsbury was of Opinion, If entered before the Effoin-day of the subsequent Term, aught to be accounted a Judgement of the preceding Term. That no Notice could be taken of any actual entry of any Judgement at Law but that every Jugment whensoever entered, if before the Essoin day of the subsequent Term ought to be accounted a Judgement 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 Nou. 1662. should go and be applied as part of satisfaction of the 1600 l. and damages due on the Judgement, and what other moneys 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 Judgement, 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 Judgement was not entered, 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 Money, as received on the Judgement, until the said Judgement (which was his Security) was really and actually entered, if the Plaintiff insisted as before, which was overruled; and the Plaintiff than 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 settled, 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 Judgement. This Court now declared, That the Examination of the time of the actual Entry of the Judgement in this Case, Examination of the actual entry of a Judgement at Law, only intended to inform the Court, and not to impeach the Judgement. did not impeach the Judgement, but only to guide the Conscience of the Court in the application of the payment of the Money, and therefore (as this Case is) the whole Money having been decreed and settled as aforesaid, the Examination of the time of the actual Entry of the said Judgement, tended not to the invalidating thereof, but only to inform the Court, when and how it came to be Recorded, Examination of Originals filled, is to be in the Courts at Law. which in Cases of Originals filled, to prevent the Statutes of Limitation, and other Cases of like nature, are usually Examined in the Courts at Law, the Court saw no cause to relieve the Plaintiffs on their Bill of Review, and dismissed their Bill of Review. Dethick contra Banks, 25 Car. 2. fo. 143. A Freeman of London did assign over an Adventure to the Defendant his Son, A Freeman of London disposeth an Adventure to his Son. No breach of the Custom, as to the Wives third part. against which the Plaintiff complains, and insists, It is contrary to the Custom of London, and tends to defeat the Plaintiff his Wife of a full third part of the personal Estate: This Court with the Judges held the disposition to be good, and could not relieve the Plaintiff. Harmer contra Brooke, 25 Car. 2. fo. 648. THe Bill is to have an Execution of a Marriage Agreement; Bill to perform a Marriage Agreement. the Plaintiff Harmer, with the encouragement of Thomas Hamling, was to marry the Plaintiff Elizabeth, the only Daughter and Heir of the said Thomas Hamling (the Plaintiff Harmer being a man of a great Trade) and in Consideration thereof the said Thomas Hamling was to pay the Plaintiff Harmer 500 l. at Christmas following, and to settle on the Plaintiff and his Heirs a House in Sussex, and at his death to give to the Plaintiff Elizabeth his Daughter all his Estate real and personal, except 400 l. which he intended to the Defendant his Brother's Son, whereupon the Plaintiff Harmer married the said Elizabeth; but now the said Thomas Hamling, the Plaintiffs Father refuses to perform his Agreement and Promise aforesaid, the Plaintiff marrying without his consent and liking, as is pretended, and died without performance thereof, and made a Will, and the Defendant his Executor, which Will the Plaintiff insists was voluntary, and aught in Equity to be set aside, the Plaintiff being disinherited thereby, and to have the said Marriage Agreement performed, is the Plaintiffs Bill. The Defendant insists, That the said Marriage was had by surprise, and without the Consent of the said Thomas the Father, and that he did never approve of it, but when told of it was in great Passion, and said his Daughter was undone, and then made his Will in these words, viz. I give and bequeath unto Elizabeth my only Daughter, lately married against my consent and good liking, to Francis Harmer the Sum of 20 l. over and above the Sum of 500 l. which I intent to pay her myself in full for her Portion; and the said Thomas the Father being afterwards moved to alter his said Will, declared he would not alter the same, and that he would not be a Precedent to disobedient Children, and the Defendant claims the said Estate real and personal by virtue of the said Will. This Court ordered it to be Tried at Law, Whether Thomas the Father did agree to give the Plaintiff Francis Harmer with the said Elizabeth, any other or further Estate real or personal at any time, over and besides the said 500 l. That a Verdict passed for the Plaintiff, And after a Trial at Law, the Marriage Agreement decreed to be made good. That Thomas the Father did agree to give the Plaintiff Francis Harmer, with the said Elizabeth, a further Estate real and personal besides the 500 l. This Court was satisfied there was such a Marriage Agreement, and that the same aught to be made good, and decreed accordingly. Tregonwell contra Laurence, 25 Car. 2. fo. 582. THe Bill is, An Injunction to restrain Ploughing or Burnbeating of Pasture. to restrain the Defendant (being Tenant for life) from ploughing up, or converting into Tillage Pasture Ground, to the damage of the Plaintiffs inheritance. The Defendant insisted, That the said Land was very full of Bushes and Fuz, and that the Ploughing and Burnbeating was an improvement of it. The Plaintiff insisted, That the Lands are Sheeps-strete or Sheeps-slight, the surface or soil being so thin, that if the same be ploughed up two years together, the Lands will yield no profit in many years after. This Court on reading an Order 20th Febr. 25 Car. 2. and a Certificate of Referrees, doth decree, That a perpetual Injunction be awarded, to restrain the Defendant from Ploughing up or Burnbeating of the said Lands above two years. Sutton & Vxor ejus contra Jewke, 25 Car. 2. fo. 178. THat 1500 l. Sum left for a Portion. But if she marry without consent, than a part to be to another. was to be put out at Interest for the use and benefit of the Plaintiff Ann, and then the said 1500 l. and the proceed thereof to be paid her at her Age of 21, or Marriage; but if the Plaintiff Ann should Marry without the Consent of the Defendant Jewke and his Wife, being her Father and Mother, or one of them, or the Survivor of them, than 500 l. part of the said 1500 l. to be paid to such person as the Defendant Jewke his Wife, by Writing under her Hand, and without her Husband should appoint. That the said Defendant Jewke his Wife died in 1668. without making any Appointment, so that the Plaintiff Ann is thereupon become entitled to the whole 1500 l. and the proceed thereof: That the Plaintiff Ann married in 1671. and this Suit is to be relieved for the 1500 l. and Interest. The Defendant Jewke insists, That Mary his Wife died in 70. but before her death in 1669. by Deed Parol directed, that in case the Plaintiff Ann married without the Consent of her the said Mary, or the Defendant Jewke her Husband, than 500 l. part of the said 1500 l. to be paid to her and the Defendant, or the Survivor of them, and that the said Deed was made upon mature deliberation, to keep the said Plaintiff in due Obedience, and that the Plaintiff Sutton having in a clandestine manner married with the Plaintiff Ann without the Defendant Jewke his privity or consent, and after he had forbidden his Daughter to marry with him on the forfeiture of his Blessing, or what otherwise she might expect from him the said Defendant Jewke by means thereof, and by being Administrator to his late Wife, became entitled to 500 l. part of the said 1500 l. So the Chief point now controverted is, Whether the Plaintiff Ann. be entitled to the whole 1500 l. or whether she had not forfeited 500 l. thereof by her marriage without her Father's consent and privity, and contrary to his direction and advice. His Lordship was fully satisfied, 500 l. Decreed to be defalked out of 1500 l. because of Marriage against Consent. That the Plaintiffs said Marriage was without the Defendants privity and against his consent, and that therefore the Plaintiff Ann cannot have the said 500 l. But decreed the Defendant to have the same with Interest from the Plaintiffs Marriage. Wall contra Buckley, 26 Car. 2. fo. 178. THat the Plaintiffs Father, Guardian takes Bond in his own Name, for Arrears of Rent, by this the Guardian hath made it his own Debt as his Guardian, takes Bond for 100 l. Arrears of Rent due from the Tenants, and takes it in his own Name. This Court is of Opinion, That the Plaintiffs Father hath by that means made it his own debt. Stickland contra Garnet & all, 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 trusties, should Sell the same, and with the Money thereby Raised, to pay the Legacies in the Will, and the trusties 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 Judgement of the Court, Legatee dies 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 satisfy the same, than the Testators Manors 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, than the whole Manors, 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 Died, 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 entitled to the said 500 l. nor the Residuary Estate; but that the said Thurston as Residuary Legatee, was well entitled 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 Dismissed the Plaintiffs Bill. Dom. Leech contra Leech, 26 Car. 2. fo. 369. THis Court declared, A Deed tho' Canceled, yet good, and the Estate shall not be Divested out of the trusties. tho' the Deed appeared Canceled, yet it was a good Deed, and that the Cancelling thereof, did not Divest the Estate of the trusties therein named, and that the Trust thereby Created, aught to be performed. Feake contra Brandsby, 26 Car. 2. fo. 74. THat William Crow 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 Crow 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 entrusted in his House-keeping, and employed in washing his Linen, and Tended him in his Sickness; and therefore Decreed the Defendant the Executor, to pay the Plaintiff her 10 l. Legacy. Winchcomb contra Winchcomb, 26 Car. 2. fo. 654. THat in Michaelmas Term 2 Car. 1. John Carter obtained a Judgement 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 Humphrey Coles his Executor, and Died, and the said Humphrey 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 Judgement. But the Defendant Winchcomb produced one of the said Bonds Canceled, Judgement upon Bonds of long standing ordered to be paid. and insisted, that the same was satisfied, for that Humphrey 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 Canceled. And the said Coals insisted, that the said Carter was kept out by prior Encumbrances, and that he Exhibited a Bill against John Winchcomb the Father, to discover the same, who by Answer, acknowledged the said Debt. This Court declared, that the said Debt of 400 l. and Costs aught to be paid, and Ordered the same accordingly, and that the same be paid by Philip 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 Satisfy the Plaintiffs Demands, for that in 1665. the Intestate Blackman, her late Husband (before Marriage with her) and her Father Doctor argol 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 argol, of 3000 l. Bond of 3000 l. to perform the said Agreement, and Judgement thereupon pleaded in Bar of other Debts and Goods. penalty, Conditioned for the Settling of 1500 l. upon the said Defendant Elizabeth, and her Heirs, in moneys, Lands, or otherwise within one Month after the Marriage; that accordingly the said Blackman in August 1665. entered 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 Sergeant 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 argol 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 Judgement thereon, for 3000 l. Debt upon the Bond. But the Plaintiff insists, that the remaining 200 l. in Sergeant Brampstons' Hands, which is part of the said Elizabeth's Portion, aught to be applied to Satisfy 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 Judgement 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, than 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, than 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 specific 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 entered 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 Stamford's Estate, and in respect of the Antiquity of the said Recognizance would have it set aside, presuming the money 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 entered into Articles for Purchase of the Lands in question, Articles. Conveyance. by which Articles the Plaintiff Covenanted. That the said Lands did fully and completely 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 completely 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 money 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 money to insure, and 14 years since it was assigned from Hand to Hand by a Decree, 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 Clerk, 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 relieved against an Attachment in the Lord Mayor's Court by the Defendant Clerk, 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 Clerk in a a greater Sum: So the Plaintiff Exhibited an English Bill in the Mayor's 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 Proceed 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 Money in the hands of his Debtor, it not being material whether such Creditor be really indebted to the person so Attaching. And the said Clerk further pleaded, That the said English Bill was to the same effect with this Bill, and is not dismissed, and demurred to that part, which prays a Certiorari to remove the said Proceed 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 Proceed by English Bill, in the Lord Mayor's Court, into Chancery. and overruled the same; and the Defendant Clerk 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, etc. that they may proceed upon the same Attachment; but at the same time an Injunction to Issue, to stay the Defendants proceed 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 Granddaughters, it being thus expressed 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 herself, 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 expressed; 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 Sicily 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 Judgement 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 trusties 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 Copyhold Lands, and also for farther Security entered into a Statute; but the Terms in the Leases being expired, the Defendants as trusties have renewed the said Leases with the College 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 trusties, ought not to shelter or protect the Estate against the Plaintiffs debt; for that though the Plaintiffs Mortgage did bind but a particular part of the Estate; yet the Statute did bind the whole Estate, and the Statute binding the whole Estate in its own nature, though no mention were made of subjecting the same by the Will to the said debt; nevertheless that debt ought to be made good out of the said Pincheons Estate whatever, and decreed accordingly. Ramsden contra Farmer & al', 28 Car. 2. fo. 516. THat Simon Carill was seized in Fee of Lands, Lands conveyed to trusties for payment of Debt. conveyed the same to trusties to sell and dispose thereof for performance of his Will, who by his Will devised the said premises to the said trusties and their Heirs, to pay his debts, and made Elizabeth his Wife his Executrix, who afterwards married Mr. Barnes; and the said trusties, with the consent of the said Elizabeth, conveyed the premises to Sir John Carill and others in Trust in the said Will, Trust assigned. and the said Barns after died, and the said Elizabeth married one Machell, and by Deed 22 Car. 1. the said trusties, Carill, etc. with Elizabeth, conveyed the said premises to the said Machell and his Heirs; and in 1646. the said Machell with the like consent conveyed to Duncombe, Heath and Baldwin, and their Heirs in Trust, that they after the said Simons Debts and Legacies paid, should convey to the said Elizabeth and her Heirs, or to such as she by Deed or Will appoint: That the said Elizabeth raised Monies and paid the said Simons Debts and Legacies, and performed the said Will; and after the said Machell's death, Elizabeth by Will 1650. devised all the said premises to her Son John Carill for life, and after his decease to the first Son of the Body of the said Son lawfully begotten or to be begotten, and to his Heirs. And if her said Son should not have a Son, but one or more Daughters, than she devised the premises to the first Daughter of the Body of her said Son, and to her Heirs: That the said John Carill in the said Elizabeth's life time had a Son, whose Name was John, who died in her life time, and soon after Elizabeth died, and her said Son John Carill survived her, and never had any other Son after Elizabeth Machells death; and the said John Carill died, and left the Plaintiff Lettuce his eldest Daughter, and the Defendant Elizabeth his second Daughter, and the Defendant Margaret his third Daughter; and the said Lettuce the Plaintiff claims the premises as eldest Daughter. But the Defendants, Elizabeth and Margaret, insist. They ought to have their equal parts with the Plaintiff Lettuce in the premises, and that the said Simon had not power to make such Settlement or Will, but say, he was only seized for life of the premises, and that Elizabeth Machell joined in the Settlement at her Son John Carill's Marriage; and if there were such a Will of the said Elizabeth Machell, yet the said John Carill had a Son named John Carill, Construction of the words of a Will. who was Born after the death of the said Elizabeth Machell, and lived some time after her death without Issue, and by the words of the Will, the Trust is determined. This Court not being satisfied, as to the Birth and death of the said John Carill, directed a Trial on this Issue, whether John Carill, Grandson of Elizabeth Machell, died during the Life of the said Elizabeth Machell, or after her decease. That upon a Trial on the said Issue, it was found, that the said John Carill the Grandson, outlived the said Elizabeth, Trusts determined. and therefore the Defendants insist, that the Trust limited by the Will of the said Elizabeth Machell, is fully determined. This Court declared, they saw no cause to relieve the Plaintiffs Bill in this matter, and so dismissed the Bill accordingly. Salter contra Shadling, 28 Car. 2. fo. 66. THat Bryan late Lord Bishop of Winton being possessed of the Manor of Pottern by Lease from the Bishop of Salisbury, Will. (made to Sir Richard Chaworth, in Trust for the said late Bishop of Winton) by his Will Devised 200 l. per Annum should be paid out of the profits of the said Lease, to William Salter, the Plaintiffs late Husband his Nephew, during his Life; and that the Estate in Law in the said Lease, should continue in Sir Richard Chaworth, during his Life, and the Surplusage of the profits, he Devised to the said William Salter, to whom he also Devised the Lease after Sir Richard Chaworths' death, and made Sir Richard Chaworth and others Executors, who consented to the said Devise, and about 16 Car. 2. William Salter made his Will, and as to his Interest in Pottern, he devised the same to trusties, that they should permit the Plaintiff to receive the profits during her Widowhood, on Condition she renewed the Term to 21 years, Construction upon the words of a Will. once in seven years, and if the Plaintiff should Marry or die, than he declared the profits of the Premises, to go to his two Daughters, Ann and Susanna, and the Survivor of them and their Heirs, and after their Deaths, without Heirs of their Bodies, then to his right Heirs, and Devised all the rest of his Personal Estate should be to his Executors and trusties, for the benefit of his said Daughters, and made the Plaintiff and the said trusties Executors. That the said two Daughters are since dead intestate, and the Plaintiff being their Administrator, is Entitled to the whole Term and Trust of the said Lease of Pottern, as Administrator to her said two Daughters, according to the said William Salter's Will, and the true Exposition thereof, the same being devised in manner as aforesaid. The defendant Charles Cleaver the Infant, being Son and Heir of Dame Briana Cleaver deceased, who was one of the Sisters and Coheirs of the said William Salter, and the Defendant straddlings Wife being his Sister and Coheir, insist, that according to William Salter's Will, and for that no present interest in Pottern was Devised to his two Daughters, but only Contingent possibility of Interest, in case the said Plaintiff should Marry or die, neither of which having since happened, and the said Daughters being since dead, the Interest and Term in Pottern ought to come to them, as Heirs to the said William Salter, and not to the Plaintiff, as Administratrix to her two Daughters, the rather, for that they consented to a decree for Sale of Lands, which would have come to them as Heirs at Law, to preserve Pottern from Sale, for the payment of William Salter's debts. This Court declared, that according to William Salter's Will, and the disposition therein made of Pottern, the whole Interest of the said Term and Trust therein, was well passed in the Plaintiff, and that the Heirs of Salter, can have nothing to do therewith, nor have any Interest therein, and Decreed the Plaintiff to enjoy the same against the Defendants. Still contra Lynn & al', 28 Car. 2. fo. 195. Bill is to be relieved for 123. Acres of Land. THat Philip Jacobson Deceased, Settlement. being possessed of a Capital Message or Tenement, and Lands by Lease from the Crown, Dat. 13 Car. 1. for the Term of 60 years. Did by Deed in 1639. in consideration of a Marriage with Elizabeth his then Wife; and for that she had parted with her Interest in Goods, Consideration. etc. which by Agreement, she had the Disposition of for her own use, and other Consideration herein mentioned, did Assign over the said Premises and all his Term therein, Lease Assigned in Trust for a Jointure, and after for Children. to Rumbald, Jacobson, and Abrah. Beard on Trust, that the said Eliz. should have the profits during Life, and after to James, Paul, Jane and Mary, her Children, or such of them as the said Elizabeth should appoint by her Will, and for want of such Appointment to the said James, Paul, Jane and Mary, or so many of them as should be living at her decease, share and share alike; and after Elizabeth died, Paul the Son being dead in her Life-time. Afterwards by deed in 1643. in consideration of a Marriage between the said Philip Jacobson, and Frances Earnely, and for a Jointure for the said Frances, and for Provision for such Children, as he should have by her, the said Philip Jacobson, and James his Son, Assigned over the said Premises, for the remainder of the said Term of 60 years, and all his Goods and Household stuff unto William, Daniel, and Alexander Staples, their Executors, etc. on Trust, Trust. to permit the said Frances and Philip, and such Children as they should have between them, to receive the profits during the said Term and after the decease of him and his said Wife without Issue, then on Trust, as to part to suffer the Executors of the said Frances, and as to the residue, the said James Jacobson his Executors, etc. to receive the profits during the Term afterwards by deed in 1646. Reciting all Assignments and Indentures aforesaid, he the said Philip Jacobson Assigned over the said Premises, and his Term therein, to Alexander Staples, and Jeffery Daniel their Executors, etc. on Trust, as to the said Frances Jacobson, for the Premises limited to her by her first Jointure; and as to several other parcels of Land named, as in the said Deed is recited, which said last premises, contain 132 Acres, which are in Trust for the said James Jacobson, from the death of his Father, during the residue of the Term; and in case the said James should remain unmarried, or being Married, and should die without Issue, and his Wife being a Widow, than the Rents and Profits thereof to remain, and be to his younger Brother and Sister, Lelease of Trusts. and afterwards James and Thomas Earneley, Son in Law of the said Philip, having Married Jane, one of the Daughters of the said Philip, did 22 Car. 1. Release to Staples and Daniel, and to the said Philip, and Joanna Jacobson, vid. Executrix of Rombold Jacobson, who Survived Beard, all and all manner of Trusts and demands whatsoever, and Suits in Law or Equity, which they or either of them, their Executors, etc. had from the beginning of the World unto the date thereof, in all the Lands and Tenements, with the Appurtenances then, or theretofore in the tenure of Philip Jacobson aforesaid, in the County of Wilts, and by another Release in Jan. 1647. the said James and Thomas Earneley, Released unto the said Philip Jacobson, and Joanna Jacobson, all manner of Trusts and demands whatsoever, in all Lands in the County of Wilts, as in the former Release, and afterwards by deed in 1653. reciting, that there was a Marriage then shortly to be had, between the said James Jacobson, Son and Heir of Philip Jacobson, and one Margaret Still, the said Philip did Assign over unto John Still, and Nicholas Still, their Executor, etc. the said 123 Acres, for the Residue of the Term, to the use of James and Margaret, for their Lives; and after their Deceases, to the right Heirs of the said James, begotten of Margaret, and if Margaret should Survive James, and have no Child by him, and he die before the end of the Term, than she should have power to sell 51 Acres of the premises, and the Residue to the Executors of Philip; and if Margaret die in the life-time of James not having any Issue of her Body by him begotten then living, then to the use of the said James Jacobson, his Executors, Administrators and Assigns, for the residue of the Term, which Marriage took effect, and Margaret died without Issue in the Life-time of James, after whose Decease, the said James being in possession by Deed, in 1661. for 400 l. Mortgaged the 123 Acres to Elizabeth Brinley, and yet enjoyed the 123 Acres, till he died, and the said Elizabeth Assigned over the said Mortgage, which now by mean Assignments, is come to the Plaintiff, and James is dead without Issue or Brother, and the Defendants Zenobia, Frances and Rachel, do him Survive. This Court was fully satisfied, that the Deed in 1653. Voluntary conveyance. by which the said James derived his Title, and afterwards made the said Mortgage, under which the Plaintiff claims, Remainder after a Limitation of a Term, to an Issue Male void in Law. was a good Conveyance, and well executed in James, and that the Conveyance in 1646. was a voluntary Conveyance, and the Estate thereby claimed by the Defendants created, being an Estate in remainder, after a Limitation of a Term for years, to an issue in Tail, was void in Law, and Decreed the Plaintiff to the possession of the 123 Acres, or the Money due on the Mortgage, and to enjoy against all the Defendants, and Decreed that the Plaintiff and Defendant Hopkins, who is Administrator of the Mortgager James Jacobson, to come to an account. Oliver contra Leman & al', 29 Car: 2. fo. 102. A Trial at Law, is directed to the Plaintiff to try his Right to a Reversion of Lands, after the Death of the Defendant Wainwright, so the Plaintiffs desire what time they think fit to try the same; A Trial at Law directed to be within a precise time. but the Defendant insists, that the Plaintiff ought to be confined to a convenient time, which was prayed might be the Rule in this Case, and that the Defendant might not be kept in suspense, and to wait on the Plaintiffs Convenience, when he shall think fit to try the same. This Court ordered it to be Tried in Easter Term next, or the Issue be taken, pro confesso. Stawell contra Austin, 29 Car. 2. fo. 579. THat George Stawell Father of Ursula and Elizabeth Stawell being seized in Fee of Lands, Construction of a Will. by Deed and Recovery thereon, settled all the said Lands on the Defendant Sir John and Robert Austin and their Heirs, to the said George for Life; remainder for such Estates and Charges, as he by Will or other writing should appoint, remainder to the Heirs Males of his Body, with remainders over, and by Will persueant to the power reserved by the said Deed, devised the premises settled by the said Deed to the said Defendant for 99 years after his death, upon Trust, in Case he left no Son, or such as should die before 21 without Heirs, Males, and should leave one or more Daughters, for raising of 12000 l. if but one Daughter, for such Daughter, and if two or more Daughters, than 20000 l. to be raised for their portions, to be equally divided between them, and to be due and payable at their respective Ages of 21 years, or days of Marriage, and the said George died leaving no Son, and having only three Daughters, viz. Ursula, Elizabeth, and one Ann Stawell, who died since her Father, and that the said Testator George his Relict married the Defendant Seymore, and she on the death of her Daughter Ann, took the Administration of her Estate, and also soon after died, leaving the portion of the said Ann in the said 20000 l. Un administrated, and Administration of the said Ann's Estate was granted to the said Ursula, and Elizabeth her Sister, who are entitled to the said Ann's personal Estate, and that the said 20000 l. aught to be raised by the said trusties, out of the Lands settled as aforesaid; but the Defendants the trusties insist, That by the words of the Will it is dubious, whether the whole 20000 l. aught to be raised, or any more than 12000 l. When Land to be charged with portion, or not, upon the words of the Will. the said Ann being dead unmarried, and before 21. And the Defendant the Heir insisted, That as the Case is, the portions of the said Ann, ought not to be charged on the said Lands, so the only Question before the Court being, whether the trusties shall raise 12000 l. or 20000 l. for the said Plaintiffs Ursula and Elizabeth. It appearing plainly to this Court, that by the words of the said Will, that if the said Testator George had two Daughters, or more Daughter, than 20000 l. should be raised. This Court is of Opinion, and declared, that the Lands ought to be charged with the 20000 l. and the payment thereof to the Plaintiffs Ursula and Elizabeth. Laurence contra Berny, 29 Car. 2. fo. 156. THis Case is on a Bill of Review: Bill of Review. This Court declared, they would not make Error by construction; and where a Decree is capable of being executed, by the ordinary Process and Forms of the Court, and where things come to be in such a State and Condition after a Decree made, that it requires an original Bill, and a second Decree upon that, before the first Decree can be executed; In the first Case, whatever the inniqity of the first Decree may be; yet, till it be reversed, the Court is bound to assist it with the utmost process the course of the Court will bear, for in all this, the Conscience of the present Judge is not concerned, because it is not his Act, but rather his sufferance, that the Act of his Predecessor should have its due effect by ordinary Forms: But where the common Process of the Court will not serve, but a new Bill and a new Decree is become necessary to have the Execution of a former Decree, is in its self unjust; there this Court desired to be excused, in making in its own Act, to build upon such ill Foundations, and charging his own Conscience with promoting an apparent injustice; and to this condition hath the Plaintiff Laurence brought himself, for he forbore to apply himself to this Court to support him, as one that claimed under the Decree in 1650, or to pray an Injunction, to stop Berneys proceeding at Law, but stayed till Berney had recovered the Land by a Trial at Bar, Where no ordinary Process upon the first Decree will serve, but there must be a new Bill, to pray Execution of the first Decree by a second Decree. and been put into Possession by the Sheriff; and now no ordinary Process upon the first Decree will serve, but he is drawn to a new Bill, to pray Execution of the first Decree, by a second Degree, and this obligeth the Court to examine the grounds of the first Decree, before they make the same Decree again. And this Court was not of this Opinion alone, but it was also the Opinion of others that were before him, who had made several Precedents in like Cases, and would not enter further into Arguments of the Errors. Lawrences' Bill was an original Bill, to Execute two Decrees in 1650, and 1651, and the Defendant Berney now also Plaintiff, it being cross Causes brought his Bill of Review, to Reverse the said Decree, etc. as Unjust and Erroncous, That the first Decree by the Lord Coventry, in 30 Car. 1. decreed a Sale of the premises for a performance of the Trust, that in 1650 a Decree was made to frustrate the Lord Coventry's Decree. Priske contra Palmer, 29 Car. 2. fo. 323. THis Court was satisfied the Plaintiff had a quiet enjoyment for a long time, and declared, Want of a surrender Aided. That notwithstanding a Surrender is wanting, yet the Plaintiffs Title ought to be supplied in Equity, and decreed the Plaintiff to enjoy the premises, and the perpetual Injunction to stay all proceed at Law. Woolstenholm contra Swetnam, 29 Car. 2. fo. 146. THat Thomas Swetnam deceased, Settlement. being possessed of a Personal Estate, and making provision for his grandchildren, being the Children of Thomas his eldest Son, being five in number, whereof Peter Swetnam was one, did by Deed authorise the Defendant William Swetnam, who was his second Son, and the Defendant Thomas Swetnam, who was his Grandchild, to receive 32 l. Rent, which was an Arrear of 16 l. per Annum Annuity of Foster's Farm, in Trust, to be divided amongst his said five Grandchilds at the Age of 21; and the said Thomas the Grandfather by some other Deed charged his whole Lands on a Settlement thereof on the Defendant Thomas, with the payment of 1000 l. equally amongst his said five Grandchilds, whereof the said Peter was one, and in further kindness to the said Peter, in 1657. by Will gave him 100 l. to be paid out of the Personal Estate, and made the Defendant William his Executor; and the said Peter's Father, to increase his Fortune, put out several Sums of Money in the said William's Name, and deposited other Money in the said Defendants hands, for the said Peter's use, and by his Will surther gave to Peter 30 l. and Peter married the Plaintiff Martha, and by his Will devised all his Estate to the said Martha, whereby the Plaintiff is entitled to the said Devisee, and to the said Peter shate in the 1000 l. so to be relieved for the Sum, is the Bill. The Defendant William insists, That Thomas, the Father of Peter, died possessed of a Personal Estate of 266 l. and the Defendant as his Executor possessed it, 1000 l. to be raised and divided amongst five Children, one dies before distribution the Survivors shall have his share, and not the Devisee of him that is dead. and paid his debts, being 100 l. and says, that the 1000 l. was given to be divided as afore said, and as the Defendant William should think fit, and that Peter dying before any distribution was made to him thereof, the Defendant William ought not to distribute the same amongst the other four, and no part of it ought to come to the Plaintiff. This Court declared, That no part of the 1000 l. doth belong to the Plaintiff in Right of the said Peter, or otherwise, and dismissed the Bill. Nance contra Coke, 29 Car. 2. fo. 64. THe Plaintiff seeks Redemption of a Mortgage made the 17th of Jac. 1. Release pleaded against the Redemption of a Mortgage, and allowed. the Defendant pleaded a Release of the Mortgagors Interest in Anno 1620. This Court after so long time and such Release, could not admit the Plaintiff to Redeem, though the premises were Mortgaged for 376 l. and worth now to be sold 1500 l. Burgrave contra Whitwick & al', 29 Car. 2. fo. 173. THat George Whitwick deceased, Will. having Issue George his only Son, and Elizabeth, and Martha the Wife of the Defendant Curtis, by Will bequeathed to the said Elizabeth 600 l. to be paid unto her as therein after is expressed, and to the said Martha 600 l. in like manner, and gave the residue of his Personal Estate to the said George his Son, to be employed as should be afterwards expressed in his Will, and also gave to his said Son and his Heirs all Lands whatsoever, and Willed, That if either of his said Children should die in their Minority, that the surviving should be Heirs to the deceased in equal portions; but if all should die without Issue, than he gave his Lands to George the Son of Humphrey Whitwick, with Remainders over, and ordered the said Portions in convenient time to be laid out in Lands for his said Children, and till Lands purchased the Executors to retain the Money so long as the Overseers should see good, at 5 l. per Cent. and made the Defendant Humphrey Whitwick Executor. That George the Son died Intestate under Age unmarried, that no Land hath been purchased by the Executor: That Martha attained 21. and received her Portion, and also the Moiety of the residue of the Personal Estate bequeathed to George the Son, but refuses to pay Elizabeth her 600 l. and Moiety of the said residue of the Personal Estate, she being yet a Minor under 21. yet she is married to the other Plaintiff Burgrave, who can give a Discharge. The Defendant insiststs, According to the meaning of the Will he ought not to pay Elizabeth till the Age of 21 years, for in case she die before, the said Martha ought to have the other Moiety of the residue of the Personal Estate, and he is advised there is a possibility of Survivorship of the Plaintiff Elizabeth's Portion, and Moiety of the residuary of the Personal Estate, and that if he should pay it to the said Elizabeth, and she should die before 21, the Defendant Martha may compel him to pay it again. But the Plaintiff insists, That the Moiety of the residuary Personal Estate devised to the said George not being laid out in Lands, falls to the Plaintiff within the words of that Clause in the Will, that gives the residue by equal portions to the surviving, and so no further Survivorship intended. This Court was of Opinion, Residuary part of the Personal Estate not subject to any contingency of Survivorship, but the Interest presently vested. and declared the residuary part of the Personal Estate is not subject to any contingency of Survivorship, but that the Interest of that presently vested in the Plaintiff, upon the death of the said George the Son, and ordered the Defendant, the Executor, to pay one Moiety of the residuary Personal Estate; and in case Elizabeth die before 21, than the 600 l. to be paid to Martha, which in the mean time is to be kept in the Defendants hands. Morgan contra Scudamore, 29 Car. 2. fo. 658. THe Plaintiffs being Customary Tenants of the Manor, Renewing Copies upon reasonable Fines. in which Manor the Tenants hold Estates, by Copy to them and their Heirs, by the words (Sibi & Suis) for 99 years yielding a Rent, paying a Herriot, and doing of Suit and Service, etc. And by the Custom of the said Manor, the Lords upon Expiration of every Estate, aught to renew upon reasonable Fines, and which said Estates, by the Custom of the Manor, do descend from Heir to Heir, and their Estates to be renewed for reasonable Fines, they being expired, which the Lords of the Manor refuse, demanding more than the Fee for a Fine, whereas two years' value, was as much as ever was, or aught to be given or demanded. The Defendant, the Lord of the said Manor insists, that there was such a Custom to renew for 99 years, but the Fines always at the will of the Lord, and such as the Plaintiffs could agree with him, for there being no benefit to come to the Lord during the 99 years, so the question is, whether the Lord shall be at liberty, to set what Fine he please, or be restrained therein by this Court, it appearing, that the Fines are Arbitrary. The Plaintiffs insist, that though the Fines are Arbitrary, yet the same are by Law supposed to be reasonable, and that in some Cases, the Law had adjudged above two years' value, to be an unreasonable Fine, and the Defendant had demanded 10 and 12 years' value for a Fine, which is very extravagant, and the will of the Lord in this Case ought to be limited. The Defendant insists, that the Plaintiffs Estates, and Terms for 99 years, expired many years before the Bill Exhibited, some of them 30, and others 11 or 12 years since, in the life-time of the Defendants Father, and some of the Plaintiffs Estates have been granted to others, and Fines levied thereon, and that the Tenants of the said Manor, do not during the 99 years pay any Fines upon death or alteration, so nothing is due to the Lord for 99 years together, so that the Defendant insists nine or ten years' purchase is a reasonable Custom. This Court declared, The Lord of a Manor limited to two years' value, for a Fine. the will of the Lord ought to be limited, and that the Plaintiffs onpayment of two years' value, shall be admitted to their said Estates, and hold the same against the Defendant, and all claiming under him, and that the Plaintiffs shall renew such Estates within one year after the Expiration of their Term, in case they be of Age, Tenant's Decree to renew within one year after the Leases expired. or within the four Seas at such time, or otherwise within one year after such respective Tenant shall attain the Age of 21, or return from beyond the Seas, or else such Tenant shall be for ever foreclosed of any help or benefit, and and then the Lord is at liberty to dispose thereof. Warwick contra Cutler, 30 Car. 2. fo. 285. THe Testator deviseth Lands to be held by his Executors, Will. Lands devised to be held by Executors, till his Son attain 22 years, Son dies before 22 Executors decreed to hold the Lands till the said 22 years. till the Testators Son attained 22 years of Age, for maintenance of the Executrix, and her Children, that the said Testators Son died before 22 years of Age. This Court decreed the Executrix to hold the Lands against the next Heir, until the said Sons Age of 22 years, as if the said Son had lived to 22 years, and the Plaintiffs debt on Bond, to be paid by the next Heir, or the reversion to lie liable, and charged therewith. Jolly contra Wills, 30 Car. 2. fo. 523. THat Roger Garland, Elder Brother, Will. Devise of Goods to J. S. for 11 years, the remainder over J.S. decreed to deliver the Goods after the 11 years. by Will, did give unto John Wills, the Defendants late Husband, the use of all and singular the Goods, Plate, etc. whatsoever then in his House, for Term of 11 years from his death, and after the 11 years expired, he gave the same to his two Nephews, Robert and Roger Garland, and to his Niece Elizabeth the Plaintiff, to be equally divided amongst them, and after the 11 years, the said Wills was to deliver them to the Plaintiff. The Defendant Wills insists, that by the bequest of the said Goods for the 11 years, she and her Husband to whom she is Executrix, are well entitled to the property of them, and that the Devisour is void in Law and Equity. This Court decreed the Defendants Will, to deliver the goods to the Plaintiffs, to be divided according to the Will, the said 11 years being expired. German contra Dom Colston, 30 Car. 2. fo. 741. THis Court decreed, Legatees to refund to make up Assets. that in case hereafter any Debt of Sir Joseph Colston, should be discovered and recovered against his Executors the Legatees of Sir Joseph Colston are to refund in proportion, what they have received for, or towards their Legacies, to make up Assets for satisfaction thereof. Cotton contra Cotton, 30 Car. 2. fo. 71. & 282. THat Nicholas Cotton being seized in Fee of Copyhold, Devise. and Free hold Lands in Middlesex and Surry, of 500 l. per Annum, in 1676. died without Issue, wherebythe same descended to the Plaintiff, as Cozen and Heir to the said Nicholas, but the Defendant Katherine Cotton, pretends that the said Nicholas Cotton made his Will in Writing, 25 years since, viz. in 1650. having first surrendered the said Copyhold Land to the use of his Will, and bequeathed the same to the said Defendant, Mrs. Katherine Cotton his Relict, and her Heirs; but if such Will were, the said Nicholas purchased some Lands since, which descended to the Plaintiff, and that the said Nicholas a little before his death, contracted with Sir Thomas Lee and his trusties, for certain Copyhold, and other Lands in Sunbury, and was to pay 1110 for the same, and paid most of the Money in his Life-time, and had possession. The Defendant Mrs. Cotton insists, that Nicholas Cotton her late Husband, deposited in the Hands of the said Sir Thomas Lee, or his trusties 600 l. designing to purchase the said Land in Sunbury; but her said Husband Cotton, was to have interest for the said Money, and he only rent the said Sunbury Lands, and not purchased them, because a good Title could not appear, but insist, that after the death of her Husband, she purchased the premises, and paid 320 l more than the 600 l. paid into the said Sir Thomas Lee's Hands, and that her Husband by the said Will, devised to her all his Real and Personal Estate, and made her Executrix. This Cause being now heard by Mr. Articles for a purchase, and 600 l. paid (but interest was paid for it till the Conveyance executed) contractor dies before any conveyance, the 600 l. was part of his personal Estate. Justice Windham, who on reading the Articles between the said Nicholas Cotton, and the said Sir Thomas Lee, whereby the said Nicholas Contracted with him for the purchase of his Free and Copyhold Lands in Sunbury, in Fee simple for 920 l. is of Opinion, that the said Nicholas died before any Conveyance made by the said Sir Thomas Lee of the said premises to the said Nicholas, and the said Sir Thomas paying Interest for the said 600 l. and the said Nicholas paying Rend for the said premises, the said 600 l. at the death of the said Nicholas, was part of his personal Estate, and as to that 600 l. could not relieve the Plaintiff, but difmist the Bill. And as to the Mortgage made to Perkins by the said Nicholas, and the Defendant his Relict, it appearing that part of the Mortgaged Lands was before that Mortgage made, Equity of redemption to whom belongeth. settled on the said Nicholas; and Katherine in Jointure, or otherwise, so as the same came to her as Survivor, this Court is of Opinion, that the Equity of Redemption, belongs to her as survivor, and not to the Plaintiff. But as for the other part of the Mortgaged premises, and other matters in the Plaintiffs Bill, for which he seeks relief as Heir. The question being, whether any republication were of the said Nicholas his Will, Republication of a Will. and whether the same Lands do belong to the Plaintiff as Heir, or to the Defendant Katherine as Devisee by force of the said Will. This Court referred that point to a Trial at Law upon this Issue, whether the said Nichelas Cotton, did by his said Will, devise the said Lands in Shepperton in the Defendants answer mentioned to be purchased by the said Nicholas Cotton of one Rowsell in Fee in 1659. to the said Katherine, or not. A Trial at Law having been had upon the point aforesaid, a Special Verdict was by the Lord Chief Justice North's direction sound, Lands decreed to the Devisee. and on a Solemn Argument before all the Judges of the Common Pleas, they unanimously gave Judgement for the Defendant, that the Lands in question, did belong to the Defendant Katherine, as Devisee by the said Will. This Court confirmed the Judge's Opinion. Civil contra Rich, 30 Car. 2. fo. 338. THat Sir Edwin Rich made his Will, whereby he after some Legacies gives and Bequeathes all the residue of his Estate both real and personal, to Sir Charles Rich his Heirs and Assigns for ever, and makes him Executor of his Will, and in his Will says, he left his Estate as aforesaid, in Trust with him, wherewith to reward his Children and grandchildren according to their demerit. This Court declared, A general Trust in a Will for Children, and not a fixed Trust to create a certainty of right. That as to Sir Edwins Estate taking the words of the Will of the said Sir Edwin as they were, they could amount to no more than a general Trust in Sir Charles, to reward such of his Children, and Grand children as they should demerit, and as Sir Charles should think fit, and not an absolute fixed Trust, to create a certainty of right or in terest as to any certain Proportion, in any of the Children or Grand children, much less in the Plaintiff Civil Rich, who demands the greatest part of the Estate, and that it was in the Grandfather's power, to give the said Estate, or what Proportions thereof as he pleased, to any of his Children or grandchildren, but whatever of the real Estate of Sir Edwin was disposed, or settled 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 relieved, but dismissed 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 Judgement. 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 Money, 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 premises, 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 Suit 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 Judgement 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 aught 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 trusties 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 premises are encumbered by a former Judgement 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 Judgement, grounded on Original of the same day and date with the said Lady Grey, and aught to be satisfied in equal degree and time. The Plaintiffs Creed and the other Creditors insist, Judgements 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 Judgements 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 Judgement 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 Judgements, 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, than 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 settled 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 settling Intestates Estates, was the best Rule that could be observed, as to the Limiting the extent of the word Kindred, and that it should extend only to the Testators Sister, Ann Carr, and her Children, and to the Testators Nephews and Nieces now living, and that no Kindred out of the degree of a Brother or Sister to the Testator, or a Child of such Brother or Sister, aught to come in or have any share of the said Residue, and that amongst those that are to come into the Distribution, the Executor ought chief to consider those that have most need, that so they that have more need, may have more than they that have less, and decreed the same accordingly: and as to the said John Buncher, who was his Sister's Son, and so to have share, and was particularly recommended to the Executor, who the Court declared had a power to give some more than other, this Court ordered the Executor to give him somewhat considerably out of the Residue of the said Estate, and the Executor to distribute the remainder to such of the Kindred, as are to come into the Distribution, as shall appear to the said Executor to have most need, and in such manner and proportion, as he shall think fit, and Sir Samuel Clark, one of the Masters of this Court, is to see right done in this Case, Distribution. and the Bill wherein the Plaintiffs which are beyond the degrees of Nephews of the said Testator, is to stand dismissed. Bourne contra tint, 30 Car. 2. fo. 636. THe Case is, Will. that Roger Brown the Plaintiffs Brother, by his Will in 1671. devised to Executors in Trust, all Lands as before that time were Mortgaged to him, and all Money due thereupon, that they should lay out so much of his Personal Estate, as remained after Debts and Legacies paid in a purchase of Lands of Inheritance, to be settled on the first Son of his Body, and the Heirs Males of the Body of such first Son, and so to all Sons in Tail Male, and for want of such Issue on the Plaintiff for life, remainder to the Plaintiffs eldest Son in Tail, remainders over to the Plaintiffs Children in Tail, and by his Will declared and devised, that in case the Child his said Wife was then big withal, should be a Daughter, than he gave to her 1000 l. to be paid to her at 21 or 6 Months after Marriage, and in case, she Married with consent of the trusties, than the said Portion to be 3000 l. and it was provided by the said Will, that the trusties out of the Interest of the said 3000 l. should pay for the Maintenance of the said Child, 80 l. per Annum, and it was also provided, that in case such Daughter should die before such Marriage or Age of 21 then her Portion and Money so devised to her, should go, and be for the use and benefit of such Person or Persons as should at any time enjoy his Lands of Inheritance according to the Will; and thereby declared the same Money to be laid out in a Purchase of Lands, to be settled as aforesaid, and also declared, that the rest of the Personal Estate not given or disposed of by his Will, should all be bestowed in Lands of Inheritance, and settled as aforesaid; and the said Roger Burne, died without Issue Male of his Body and about three Months after the said Defendant Florence his only Daughter was Born, and the trusties have not pursuant to the Will, laid out the Personal Estate in Lands, so that the Plaintiff ought to have the Interest of such Money, as should have been laid out in Lands. The question in this case being, whether the 3000 l. and the Interest thereof over and above the 80 l. per Annum Maintenance of the Defendant Florence, should be paid to the Defendant, or to the Plaintiff, who claims the same by virtue of the Will, in case the said Defendant Florence had not happened to be Born, the Will being made before she was Born, and the Plaintiff claiming the 3000 l. and Interest over and above the said 80 l. per Annum, in Case she should die, or not be Married, or incapacitated to dispose thereof. The Defendant insists, that the Plaintiff having a very considerable Estate from the Testator by the said Will, which would have descended to the Defendant Florence, in case she had been born and living at the time of the Death of her said Father, and that the Plaintiff cannot have any pretence to the interest of the said 3000 l. as aforesaid, for that there is not any Clause or Direction in the Will touching the same. Portion and Interest devised upon a contingency of dying or Marriage decreed to be paid into Court for the benefit of the Heir according to the Will, in case of the Devisees death. This Court declared the 3000 l. and Interest over and above the said 80 l. per Annum, belongs to the Plaintiff, in case the said Florence die before she receive the same by the said Will, and Decreed that the Interest of the 3000 l. be paid into Court, and not to be taken out, without good Security, given by the said Helena, to make good the Benefit thereof to the Plaintiff, in case the said Florence die before 21 years, or Married as aforesaid, as the Will directs. Elvard contra Warren & al', 31 Car. 2. fo. 350. THe Defendant being in Contempt for disobeying a Decree, Prisoner by Habeas Corpus brought from Bristol and turned over to the Fleet, for that he was in contempt. and being a Prisoner in Bristol, a Habeas Corpus cum causis, was ordered to bring him to the Bar of this Court, who was brought up, and turned over to the Fleet, who is there a Prisoner, and refuses to obey the said Decree. The Court ordered a Sequestration against his Real and Personal Estate. Warner contra Borsley, 31 Car. 2. fo. 629. THe question being, Devise. whether a Devise of the Plaintiffs Father by his Will of his Personal Estate, and Debts to the Plaintiff in remainder after the death of his Mother, and the Devise thereof to her in the first place, she being Executrix to the said 1st. Testator, and the Defendant her Executor, were good or not. The Plaintiff insisted, That the Devise of the personal Estate by the Will of the Testator to his Wife, was an absolute Devise to her by operation of Law and was vested in her, and so consequently in the Defendant, who is Executor of the said Alice, by virtue of the said Executor, and the Devise or Limitation over to the Plaintiff after the death of his said Mother, who was Executrix of the first Testator, was absolutely void in Law, and the said Defendant as Executor to the Plaintiffs said Mother, is well entitled to the said personal Estate, devised by the Testators said Will. The Plaintiff insisted, That the Devise to the Plaintiff in Remainder, after death of his Mother was a good Devise, and aught to be countenanced, the rather in regard such Devise in the life time of the said Testator and Testatrix was consented, and agreed to by the Relict and Executrix, and so decreed at the former hearing. This Court declared, Devise of a Personal Estate in Remainder after the death of J.S. is a void Devise and Vests wholly in J.S. she being Executrix. That the Devise of the personal Estate to the Plaintiff in Remainder was a void Devise, and the said Estate to the Testator immediately thereupon did Attach and vest in the said Alice, his Relict and Executrix, and the Defendant as her Executor, was, and is well entitled thereto, and decreed accordingly. Bredhust contra Richardson, 31 Car. 2 fo. 695. THat Samuel Russell by his Will, gave to his three Daughters, Sarah, Christian and Elizabeth 540 l. to be divided amongst them, viz. For each of them in particular 180 l. but if any one or two of them, 540 l. To be divided amongst three Daughters, and if one or two dyes without Issue the Daughters to Inherit each other, one Marries the Plaintiff and dies, Sans Issue, the Plaintiff is entitled to the 180 l. as Administrator to his Wife. should die without leaving a Child, that the Daughters should Inherit one another's Goods, moneys, Lands and Chattels, which the deceased should leave behind them, and that the Plaintiff intermarried with the said Elizabeth, and that she died without leaving a Child, before payment of the said 180 l. The Plaintiff insists, That he as Administrator to the said Elizabeh his Wife, is entitled to the said 180 l. and her share of the said Goods. The Defendant insists, That by the words and true intent of the Testator and the said Will, the same doth not belong to the Plaintiff, but came or in Equity belongs to the Defendants, as Surviving Sisters. This Court declared, the Plaintiff is well entitled to the said 180 l. and decreed accordingly. Turner contra Turner, 31 Car. 2. fo. 102. THat the Plaintiffs Father lent to Ayloff 700 l. and 200 l. at another time, for which Ayloff Mortgaged Lands to the Plaintiffs Father and his Heirs, with proviso, that on payment of 600 l. to the said Plaintiff Father or Heirs, than the premises to be reconveyed to Ayloff; that the Plaintiff is Executor to his Father and Brothers, and so claims the Mortgages, as vesting in the Executors of his Father, and not in his Heirs. The Defendant being the Son and Heir of the Plaintiffs eldest Brother deceased, and Grandson and Heir to the said Plaintiff's Father, insists, That the Plaintiff and Defendant, and others who claimed several shares, and parts of the Plaintiffs Fathers personal Estate agreed to a Division thereof amongst themselves, and a Division was made, and Releases given of each one's demands in Law or Equity to the said Estate, and the Plaintiff in particular released, and the said Ayloff's Mortgage with the Money due thereon with other things, was set out and allotted to the Defendant by consent of all the parties, and received by the Defendant in part of his share, and the Plaintiff accounted to the Defendant for the profits of the said Ayloffs Mortgaged premises received by him, and afterwards in 1664, the Defendant had a Decree for the Mortgage Money against Ayloffs Executor, and received the same, to which proceed the Plaintiff was privy, and the Defendant says it is unreasonable, that the Plaintiff should now make a demand to the said Mortgage, to unsettle matters so settled by his own consent; but the Plaintiff insists, he looked on the premises at that time to come to the Defendant as Heir, and knew not his own Titile thereto, and the shares set out came but to 250 l. apiece, and Ayloffs Mortgage was worth 800 l. This Court is of Opinion, The Heir is decreed to have a right to a Mortgage in Fee and not the Executor. that the Plaintiff ought to be relieved, and had an undoubted Right to the said Mortgaged premises, and decreed the Defendant to repay all the Money received by him thereon to the Plaintiff. Bois contra Marsh, 31 Car. 2. Land Legatees, and Money Legatees decreed to abate in proportion notwithstanding an Agreement to the contrary. fo. 441. THis Court declared, That all the Legatees both Land Legatees and, Money Legatees ought to abate in propotion, notwithstanding the Agreement to the contrary, and that the said Agreement be set aside. Audley contra Dom' Audley, 31 Car. 2. fo. 848. THe Bill is to set aside a Lease made by Sir Henry Audley the Plaintiffs Father, Power to make Leases, if well pursued. to the Defendants, as trusties for the Defendant the Lady Audley for 99 years, if Henry, Francis and Ann Audley, Children of Sir Henry by the Defendant the Lady Audley should so long live, paying yearly so much Rend as amounts to two parts in three of the yearly Value of the said Houses, according to the best improved Value. But the Plaintiff insists, The said Lease is not made pursuant to the power reserved to the said Henry by a Deed of Settlement made by one Packington in 4 Car. 1. in Consideration of a Marriage between the said Sir Henry and Ann, one of the said Packington's Daughters and Coheirs; by which it was declared, That the benefit of such power in the said Sir Henry to make Leases, was to be for the younger Children of the said Sir Henry by the said Ann his first Wife, and the said Lease was not well gained from Sir Henry. The Defendant insisted, it was made pursuant to the power, which was, That Sir Henry should have power to make Leases, for a provision of any thing he should have, or otherwise as he should direct. Which Matter was referred to the Lord Chief Justice Hales, who declared the power good, and that Sir Henry had pursued that power. The Plaintiff insisted, That the Rent reserved is altogether uncertain and lies only in Averment, and that if the Value averred by the Plaintiff should in the least be disproved, the Plaintiff would be Nonsuited in any Action: And so insisted, That it was proper for this Court to fix and establish that for a standing Rent, which can be made out to have been two parts of the best improved Value at the time of making the said Lease, and that the Rent so to be ascertained, the Defendant might Covenant for constant payment thereof. This Court, on perusal of the said Lease and power, and of the Lord Hales Opinion, declared the said Lease to be good and sufficient, and that unless proof be made of a greater value than the Sum of 290 l. Two parts in three of the improved value reserved as a Rent by a power, the constant payment of such a Sum at the time of making the said Lease, decreed to be paid whether the premises rise or fall. which hath been constantly paid by the Defendant the Lady Audley, and accepted of by the Plaintiff, that the said Sum must be taken as two parts of the full value of the premises at the time of making the said Lease, which, or the greater Value, if so proved, is to continue to be paid, whether the said premises rise or fall in Value; and decreed accordingly. Hethersell contra Hales, 31 Car. 2. fo. 845. THe Question in the Case is touching 2500 l. 200 l. allowed a Trustee for Charges and Expenses in managing a Trust. demanded by the Defendant, for his Charges and Expenses in managing the Trust in question, which began in 1668. and continued till this Defendants Answer was put in, in which time the Defendant received 20000 l. and paid the same all away to the Creditors, and the Plaintiff had not surcharged the Defendant 6 d. This Court took till this day to consider what was fit to be allowed in a matter of this nature, and having considered that the Defendant was a Friend to the Family, and undertook the Trust at their great Importunity, he having a considerable Estate when he undertook the Trust, and considering the charges of Surveying the whole Estate, setting and letting the same, looking after Tenants, adjusting their Accounts, calling in their Rents, returning moneys to Creditors, and treating with and stating their Debts, and procuring and agreeing with Purchasers, and for Law charges, and for keeping Servants and Horses, and employing others in Journeys to London and elsewhere, and his Care there (lying from home a long time) was of Opinion, That the Defendant might well deserve the whole 2500 l. yet doth allow but 2000 l. which the said Defendant is to have. Ray & Vx ejus contra Stanhope, 31 Car. 2. fo. 809. THe Bill is, That Sir Edward Stanhope, Trust. the Plaintiff Elizabeth's Grandfather by Deed demised Lands to trusties for ten years after the said Edward's death, upon Trust, that they should out of the Profits pay to the Plaintiff Elizabeth for her Maintenance 20 l. per annum until her Age of 21. and should further pay to the Plaintiff Elizabeth at her Age of 21. if she so long keep unmarried, 1000 Marks for her Portion: That the said Sir Edward died, leaving Issue Edward Stanhope the Plaintiff Elizabeth's Father his Son and Heir, she being then 12 years of Age: That after Sir Edward's death the trusties did not intermeddle, but left all to the management of the said Plaintiffs Father, who received all the Profits, and on that Consideration, Edward Stanhope the Plaintiffs Father demised to trusties the said premises, the Reversion of which he was seized in Fee expectant upon the said Term of 10 years, and other Lands, whereof he was Seized in Fee, to hold for 20 years upon Trust, to pay the Plaintiff Elizabeth 20 l. per Annum, until her Marriage, and 500 l. after her Marriage, in such manner as in the said Deed for 20 years is expressed, and the same was said to be made in consideration of the Preferment the said Sir Edward intended for the Plaintiff Elizabeth his Grandchild, that the Plaintiff received the profits of the premises, in the said former Lease, during the 10 years, and profits of the Premises in the said latter Lease, so long as he lived, and maintained the Plaintiff, and in 1658. the Plaintiff Elizabeth's Father died without Issue Male; but in his life after the said Lease for 20 years, settled the premises with other Lands of 500 l. per Annum, upon the Defendant his Brother, without any consideration, save natural Affection, and the Defendant hath since received the profits that the Plaintiff Elizabeth was unmarried at her Father's Death, and was his only Child, and about nineteen years before the Bill exhibited, she Married George Stanhope who died, and about 7 years since she Married the Plaintiff Ray, so to have Satisfaction of the 20 l. per annum from her Father's Death, to the time of her Marriage with George Stanhope, and the 500 l. and Interest from her said Marriage; but the Defendant refuseth to pay the same, pretending the said several Terms are expired, and that the Lands of 60 l. per Annum, descended upon the Plaintiff Elizabeth, by her Father's permission, in Satisfaction of the said Money; but the Plaintiff insists, the Lands descended to her from her Father, were charged with 500 l. which she hath paid, and she had no other provision made for her out of her Father's Estate, and that the Defendant had an Estate of 500 l. per Annum come to him by a voluntary Settlement from the Plaintiffs Father. The Defendant insisted, that if the Plaintiff Eliz. Father did make such demise for 20 years, he had no power so to do, being but Tenant for life, by a Settlement made by the said Sir Edward, and so the Defendant not liable to pay the Moneys, and the Defendant claims the Lands and Premises by virtue of a Fine and Settlement made by the said Edward Stanhope the Plaintiffs Father, wherein the Defendant and his Brother George Stanhope joined, and though the said Defendant is the Heir Male of this Family, yet he receives little there out of the said Estate, the same being charged with 86 l. per An. and the Plaintiff hath not only enjoyed the said 62 l. per ann. charged only with 500 l. but also as Administrator to her said Father, received out of his Personal Estate 600 l. and if she should have the 500 l. in question also, she would have a greater share out of the Estate, Arrears of Annuity decreed to be paid, and also a portion of 500 l. upon the Defendants owning it in a Letter. than the Defendant. This Court, upon reading a Letter from the Defendant, wherein he owns the 500 l. to be due to the Plaintiff Elizabeth, on her Marriage, and 20 l. per Annum in the mean time, or to that effect, declared the Defendant ought to pay the Arrears of the said 20 l. per Annum, from the death of the Plaintiffs Father, to her Marriage with her first Husband, and also the 500 l. with the Interest thereof, from the time it was raised out of the profits, and decreed the same accordingly. Dom. Blois & al' contra Blois & al' 31 Car. 2. fo. 723. THe Bill of the Plaintiff, Will. Dame Jane Blois, and of Jane her Daughter, by Sir William Bloys, is (viz.) that the said Sir William Blois, Father of the said Jane the Infant, being Seized of Lands by his Will, gave all his Real and Personal Estate to the Defendant Dame Elizabeth, to the Plaintiff Dame Jane, and to the Defendant Mary Brook, and Abigal Hodges, provided that his Son Charles Blois, should have 300 l. per Annum, thereof, and all his Goods should be equally divided amongst his 4 Children, as soon as the said Charles should by a Match, raise 9000 l. to be paid to his Sisters, and made the four Children Executors, and died, whereby the Plaintiff Dame Jane, and the rest of the Executors, were Entitled to all the Real and Personal Estate, to them and their Heirs as joint Tenants, in Trust nevertheless for the said Elizabeth and Mary, and the Infant Plaintiff, until the Sum of 9000 l. should be raised and paid unto them, and secured unto them by the Defendant Charles, the only Son and Heir of the said Sir William. The Defendants, Charles, Elizabeth, Mary Brook, and Abigal Hodges insist, that Sir William in his Life time, upon his second Marriage with the said Plaintiff Dame Jane, (the Defendants Charles, Elizabeth, and Mary Brooke, being the Issue of the said Sir William, by a former Venture) by deed settled a great part of his Estate in Trust for the said Dame Jane as her Jointure, wherein provision was made whereby the said Plaintiff Jane his Daughter was to have 3000 l. out of his Estate for her Portion, and that Sir William declared, he intended her no more, and that the Defendants Elizabeth, and Mary, Sisters of the whole Blood to the Defendant Charles, should have their Portions out of his Estate, made equal with the portion provided for the Plaintiff Jane the Infant, as aforesaid, and that the 9000 l. to be raised by the Defendant Charles, was for all his Sister's Portions, including the said Plaintiff Jane, the Infant, but over and above the said 3000 l. provided for her by the said Settlement, and hope this Court will not think it reasonable, that the Estate of the Defendant Charles shall be charged with the payment of 6000 l. for the Plaintiff Janes portion, which Sir William never intended to be above 3000 l. and insists, that the Plaintiff Jane being Sister by the second Venture, ought not to have two 3000 l. and they but one 3000 l. who are Sisters of the whole Blood, to the said Charles, and insist, that the said Will was only in affirmation of the said Settlement, and that the said Sir William had no great Fortune with the said Dame Jane. The Plaintiff Dame Jane, and Jane her Daughter, insist, that by the said Settlement on Marriage with Dame Jane to Sir William, there was a provision for Issue Males; and if more, than a provision for 3000 l. for Issue Females, by which the Plaintiff Jane the Daughter claims 3000 l. And then Sir William by his Will, devising 9000 l. to be raised out of his Lands for his Daughter's Portions (viz.) 3000 l. apiece, not excluding the said Jane, she is as much thereby entitled to a third part of the Estate devised, as her Sisters are to 3000 l. apiece; and there was a good Reason for such double Portion for Jane the Daughter, in respect the said Dame Jane did bring to Sir William 500 l. per Annum Jointure and 1000 l. in Money, and although Dame Jane had before her Marriage a separate Maintenance of 250 l. a year out of the said 500 l. per Annum, yet it was paid to, and received for the use of the said Sir William, and Sir William often declared, it should be made up to her Child or Children. This Court on reading the Marriage Settlement and Will, Upon the Construction of a Marriage Settlement and Will, only one Portion decreed of 3000 l. and not 6000 l. by which it appeared that the said Will did operate as well upon those Lands in possession, as those in Reversion, declared there was no proof of any Intention of Sir William the Father to make a double Portion for Jane his Daughter by a second Venture, and therefore the Plaintiff Jane the Daughter ought to have but one 3000 l. but that she ought to have it in the first place, whether the Lands in present possession devised, and the said Reversion, which are liable to the said Will, be sufficient or not to raise the whole 9000 l. (viz.) 3000 l. to the Plaintiff Jane, and 6000 l. to the Defendant by the first Venture, and decreed accordingly. Stewkley contra Henly, 31 Car. 2. fo. 567. THat Sir John Trott deceased, Will. being seized in Fee of a Rend charge of 200 l. per Annum, but subject to a Redemption on payment of 3400 l. by his Will in 1670. devised the said Rent to trusties and their Heirs, and all benefit thereof on Trust, that they should suffer Katherine his Daughter (than the Plaintiffs Wife, and since deceased) her Heirs and Assigns, to receive the same to her and their own proper use: That shortly after the Grantor of the said Rent charge redeemed the Rent-charge by payment of the 3400 l. to the Plaintiff Stewkley and his said Wife Dame Katherine, whereupon they came to an Agreement by Deed touching the said 3400 l. (viz.) as to 1400 l. thereof should be paid to the Plaintiff, he conveying Lands to trusties to answer the Interest of the said 1400 l. to the said Dame Katherine his Wife, in such manner as the said Rent-charge was payable by her Father's Will, and with further power of Appointment in Dame Katherine, to direct the payment of any part of the said 1400 l. by her Deed or Will, or other Writing under her Hand and Seal, to the Plaintiff or Children of the Plaintiff and the said Dame Katherine; and as to the remaining 2000 l. it was agreed it should be put out at Interest, which Interest and such part of the Principal as the said Dame Katherine should by Writing under her Hand and Seal, was to be paid by the trusties as he should appoint, and for want of such Appointment, or as to so much as should not be appointed, in case she did not survive the Plaintiff her Husband, then to her Heirs and Assigns in such manner as the said Rent-charge of 200 l. per Annum was demised to her as aforesaid, which 2000 l. was put out accordingly: That about 1679. Dame Katherine died without making any demise or appointment at all, she knowing the Defendant Charles Stewkley her Son was well provided for; so to have the said 3400 l. out of the trusties hands is the Plaintiffs Suit. The Plaintiff insisting, A Rent-charge in Fee (subject to Redemption) devised, the Mortgage-Mony is paid. Decreed, the Administrator to have it, and not the Heir. That the said 3400 l. was a Personal Estate, or a Chose en Action, belonging to the said Dame Katherine, and so belongs to the Plaintiff as her Administrator: But the Defendant, the trusties and the Heir insist, That the said Money belongs to the Heir, the said Dame Katherine making no Appointment thereof. This Court declared, That the Matter in demand was originally a Mortgage, and if it had not been Redeemed in the Lady's life time, it would have gone to her Administrator, and the Lady having made no Appointment other than the said Deed as to the 1400 l. and having only appointed, that the 2000 l. should go as the Rend charge of 200 l. per Annum by Sir John Trots Will should have gone, which being once a Personal Chattel and not descendible, the operation of Law could not be controlled, but that it ought (being a Personal Estate) to go according to the course of Law to the Plaintiff, he being Administrator, the rather for that the Heir is amply provided for, otherwise his Lordship declaring, that the Lady Stewkley not having made an Appointment it ought to be taken for her Intention, that the Plaintiff should have the Money, and therefore decreed the Defendants, the trusties, to convey to the Plaintiff and deliver to him 1400 l. and the Securities for the 2000 l. Green contra Rook, 31 Car. 2. fo. 351. THat Laurence Rook, Devise. Father to the Defendant Heyman Rook and to the Plaintiff Mary, being seized in Fee or Fee-tail, or other Estate of Lands, by Deed of the 26th of August 1650. granted the premises to Edward Scot and others for 80 years, if he so long lived, and afterwards conveyed the sameon the 27th of the same Month unto Sir Henry Heyman and Peter Heyman, and their Heirs, for the term of his life, and by Deed the 20th of October than next following, and by a Recovery in pursuance thereof the said premises were settled on the said Sir Henry and Peter Heyman and their Heirs, for the life of the said Laurence, Remainder as to part to the use of Barbary, Wife of the said Laurence for her life, for a Jointure, and after as to part to the said Sir Henry and Peter Heyman for 99 years in Trust, to raise 1000 l. for the portion of the eldest Daughter of the said Laurence, and then to the use of the first Son of the said Laurence in Tail Male, with the Remainder over: That the said Laurence and Barbara are dead, and the Defendant Heyman Rook is his first Son, and the Plaintiff Mary is his eldest Daughter, and the Portion of 1000 l. is due to her, and the same being unpaid, Peter Heyman the surviving Trustee assigned the term of 99 years to the Plaintiff Greene, to enable him to raise the Money; and the Defendant Heyman Rook hath mortgaged the same premises to the other Defendants; so the Question is, Who hath the right or equity of Redemption, and the Bill is also to have the Plaintiff Maries Portion paid, or the equity of Redemption foreclosed. The Defendant Heyman Rook by Plea insisted, That George Rook his Grandfather by Will in 1647. devised the premises unto Laurence Rook his eldest Son, and Father to the Defendant Heyman Rook for life only, Remainder to the first, second, third and fourth Sons of the said Laurence in Tail, Remainder to John Browne and others for their lives in Trust, for the better securing and preservation of the several Remainders limited unto the several Sons of the said Laurence Rook with Remainders over: That the said George Rook died without revoking or altering the said uses limited in his Will, and so Laurence Rook could not by the said Deeds or Recovery bar or cut off the Remainder limited in and by the said Will, in regard the said Browne, and the other trusties, for preserving of the contingent Remainders were living since 1650. in which year the term of 99 years was created. This Court declared, Devise to Father for life, Remainder to the first Son, etc. Remainder to trusties for 99 years to support the Remainders, it's a good term to support the Remainders, notwithstanding the same is limited and inserted after the limitation to the first Son (it being in the case of a Will.) That the term limited to the trusties in the Will for their Lives, for the preservation of the contingent Remainders to the several Sons of the said Laurence Rook was a good Term, and a State to support the said contingent Remainders, notwithstanding the same is limited to the said trusties, and inserted in the said Will, after the limitation to the first and other Sons of Laurence Rook in Tail Male, for the same being in the Will, and the intent of the Testator plainly appearing so in the Will, they held the said Plea and Demurrer to be good, and so dismissed the Plaintiffs Bill. Trethervy contra Hoblin, 26 Car. 2. fo. 114. THe Plaintiff being a Purchaser of the premises, Bill to discover a Title. calls the Defendant to discover his Title, who insists on a long Lease of a 1000 years, which was found by Verdict for the Defendant. And the Defendant insists for Cost, Costs. for that the Plaintiffs Suit in this Court was causelessly and vexatiously brought by the Plaintiff. The Plaintiff insists, 〈◊〉 That he being not able to try the validity of the said Lease at Law, during the life of Oliver one of the Defendant. This Court is satisfied, Suit for discovery, and to preserve Testimonies and the Plaintiff to pay no Costs. that the Plaintiff had good ground to bring this Suit for a discovery and relief, and to preserve the testimony of his Witnesses, it falling out to be a severe Case upon the Plaintiff, so no reason for the Plaintiff to pay any Cost either at Law, or in this Court. Boughton contra Butter, 32 Car. 2. fo. 379. THis Cause was referred to Sergeant Rainsford, to certify touching the Enclosure, whether advantageous, and whether the Parties had consented thereunto, who had drawn up a Certificate, Certificate ordered to to be filled, though not delivered in the life of the Certifier. all written with his own Hand, but he dying before he had declared the same. It was prayed by the Plaintiff, that the said Certificate might be filled, and taken to be authentic, as if he had delivered the same to either party. The Defendant insisted, That the said Certificate had no date, and that the Sergeant never intended to deliver the same. This Court Ordered the said Certificate to be filled, notwithstanding the Objections made thereto by the Defendant. Tucker contra Searle, 31 Car. 2. fo. 423. THat John Bassano, the Plaintiff Frances Father, by deed, 20 July 1640. Marriage Settlement. in consideration of a Marriage between him and Elizabeth, the Plaintiff Frances Mother, and a Marriage Portion, Covenanted to stand seized of Lands to the use of the said John and Elizabeth, for their lives, and after to the first Son of the said John and Elizabeth, and so to the second third and other Sons, and the Heirs of their Bodies, remainder to the right Heirs of the said John Bassano the Elder for ever, on Condition and Limitation, that if the said John Bassano, should have Issue Female, and not Issue Male by Elizabeth, than his Right Heirs to pay the first and second Daughters of the said John by the said Elizabeth 300 l. a piece, to be chargeable on the said Lands, and if more than two Daghters, than the said Lands for the full value of them to be sold, should equally be divided amongst such Daughters; that the said Bassano had no Issue Male by Elizabeth, but had Issue Female (viz.) Elizabeth their Eldest Daughter, the Plaintiff Frances their Second, and another Elizabeth their youngest, that Elizabeth the Eldest died in the life of her Father and Mother, and that at the death of John the Father, there being only the Plaintiff Frances living, but the said Elizabeth the Mother being ensient with Elizabeth the youngest Daughter of the said John Bassano, by Will (John Bassano taking notice of the aforesaid deed) provides, that in case Elizabeth his Wife were with Child of a Son, than his Executors to pay to the Plaintiff Frances 300 l. but if a Daughter, than he had otherwise provided for the Plaintiff Frances, and such Daughter by deed, and shortly after died, leaving John Bassano, his Son and Heir by a former Venture, and shortly after the said Elizabeth the youngest Daughter was Born, and died in a Month after, and in 1666. Elizabeth the Mother died, leaving the Plaintiff Frances, whereupon John Bassano the younger, took the Plaintiff Frances in Guardianship, and having the said Will and Deed in his Custody, pretended to her, she had but 300 l. Portion left her by her Father. That in 1669. the Plaintiff Tucker and the Plaintiff Frances intermarried, and John Bassano still concealed the said Will and Deed; that the Plaintiff Tucker, and John Bassano the younger agreed, that the 300 l. left to the Plaintiff Frances by her Father, should be laid out on Security or Purchase, for the benefit of the Plaintiff Frances for life, in case she survived the Plaintiff Tucker, and accordingly the Plaintiff Tucker Sealed a Deed 10th of December 1669. whereby the Plaintiff released the said 300 l. to the said Bassano the younger, upon Trust, and the said Bassano Covenants with the Plaintiff, that he his Executors or Administrators, should either continue the said 300 l. in his or their Hands at Interest, or lay out and dispose of the same upon Security or Purchase, and permit the Plaintiff Tucker during his life, and the Plaintiff Frances during her life, to receive the Interest and Benefit thereof, and to the Plaintiff Tucker and his Heirs, Executors, etc. That in 1671. Bassano the younger died, and made the Defendant Searle his Executor, and the said Searle refused to pay the said 300 l. pretending the want of Assets. And the Plaintiff Tucker insists, to have the said 300 l and interest to be chargeable out of the Walthamstow Lands, in regard the said Lands were originally charged therewith; but the Defendant the Executor says, the said Lands are sold by him to one Woots, and the Plaintiff Tucker insists, that such Sale was without notice of the Plaintiffs Title, and charge of the said 300 l. on the said Lands, and that Woots had Collateral Security to secure him against the Plaintiff, wherefore in regard the said Lands were Originally charged with 300 l. and the Plaintiffs were drawn in, to accept of the said Covenant, which is but a personal Security by the contrivance of Bassano the younger, who kept the Plaintiff ignorant of the said Deed and Will, for that the Plaintiffs Release is only upon Trust for payment of the said 300 l. the Plaintiffs do insist, that in equity the said Lands ought still to be chargeable with the said 300 l. and interest, and ought not to rely on the said Covenant. The Defendant Searle insists, that Bassano Junior by his Will devised the Walthamstow Lands to be Sold for payment of his Debts and Legacies, which was Sold to Woots as aforesaid, for 1260 l. and gave him Collateral Security, by Bond of 1500 l. to secure him against the Plaintiffs demands, and that the whole Personal Estate of the said Bassano Junior, by Sale of Lands and otherwise, fell short to pay the Plaintiffs demands, the said Searle the Executor, having paid Debts of a higher nature, and say that the Plaintiff cannot have their whole demands, but must come in proportion with other Creditors. And the Defendant insists, That the Walthamstow Lands, ought not to be charged with the said 300 l. for that on a Bill in this Court, exhibited by the Plaintiff against Bassano Senior, whereby the Portions of the two Elizabeth's Sisters of the Plaintiff Frances, were demanded to be chargeable on Walthamstow Lands, and alleged, that Bassano Junior, had secured the 300 l. being the Plaintiff Frances Portion, by the said deed of Covenant, and prayed to have the said two Elizabeth's Portions, or the value of the Lands, deducting the 300 l. secured to the Plaintiff Frances; and in October 25. Car. 2. it was decreed, that the Plaintiff should have the 300 l. which belonged to the youngest Elizabeth, and the said Lands to be chargeable therewith. But the Court then declared, they could not decree the 300 l. claimed by the said Plaintiff Frances in her own right, but that she must rely on the said Deed of Covenant, Defect in a Bill. for that they did not complain thereof by their Bill: And the Defendant insists, that the said decree being Signed and Enrolled, the said 300 l. ought not to be charged on the said Lands, but that they ought to rely on the said deed of Covenant, they having thereby released the said Lands. That the Defendant Searles cross Bill, is for relief against a Bond of 600 l. on which he is Sued at Law, and for Equity did insist, Cross Bill for Creditors, to take their proportionable shares, but the debts having been paid to them and releases given dismissed. That he was Sued here by the Plaintiff Tucker and his Wife, for the 300 l. aforesaid, and that there was a decree against him in this Court, at the Suit of one Whitton, one of the Defendants to that Bill for 700 l. so that if the Plaintiff Tucker, and other Creditors should recover their demands, there will not be Assets, and therefore prayed, that the Plaintiff Tucker and Callwall, might take their proportionable shares of what Assets was left, but the Plaintiff Tucker insisted, that the said 300 l. was originally charged on Walthamstow Lands by the said Marriage Settlement, and was not discharged by the said Covenant or Release. The said other Creditors, Callwall, etc. insists, That they have a Verdict against Searle the Executor, for the Money due on the said Bond, upon Evidence of Assets in Hands, and had taken him in Execution, and he had paid the said Money thereon, and the said Creditors had released the said debts, and therefore ought not to be farther troubled for the same. This Court declared, Lands originally charged with the payment of Portion, and a release and covenant in Trust doth not discharge the same. the said Walthamstow Lands were originally charged with the Plaintiffs 300 l. and that the said deed of Release and Covenant being made only in Trust for payment of the said Money, and when the Plaintiffs were not told of the said Deed and Will, did not discharge the same, but the said Lands ought to make it good without damages, although there were not Assets in the Executors Hands, in regard the said Lands were sold under notice of the Plaintiffs demands; and further declared, he could not relieve the said Searle, as against the said Callwall, for that he by Coercion of Law had paid the Money recovered against him, and the said Callwall had released the same to him, and dismissed Searles Bill. Annand contra Honywood, 32 Car. 2. fo. 430. THe Bill is to have a discovery of the Estate of Bennony Honywood. The Custom of London for Orphanage part. the Plaintiff Sarahs' Father, whereby the Plaintiff Annand in right of his Wife, might have an equal dividend thereof according to the Custom of Lond. on the said Bennony Honywood, being a Freeman of the said City, who having only two Children, the Plaintiff Sarah by his first Wife, and the Defendant John by his second Wife, he married the Plaintiff Sarah to one Brown in 1657, and gave her but a small matter at present, saying, That when he died she should come in for a customary part of his Estate, and 9 years after the said Marriage, made his Will in 1660. and thereby devised all his Personal Estate, to be divided into three equal parts, according to the Custom of London (viz.) one to his Wife, and another between the Plaintiff Sarah, and the Defendant her half Brother, and thereby declared, that what the Plaintiff Sarah had in Marriage with the said Brown, should be accounted as part of her share of that third part, and out of the other third part, which he had power in himself to dispose of, and thereby declared to be only reserved to himself, he appointed his Executor, which was his Wife and the now Defendant, to pay to the Plaintiff Sarah for her support for her life, and to be in no part of her Husband Brown's Estate, and 30 l. per Annum, and 300 l. in Money. That the Plaintiff Sarahs' Husband died in 1670, and she in 1672. with the Testators consent, Married the Plaintiff Annand, and in 1678. the Testator died, and the Testators Wife died before, so the Plaintiff became entitled to a full Child's part and share of the Personal Estate, being 10000 l. The Defendant insists, That the Testator did on the Plaintiff Sarahs' first Marriage, give her a considerable Marriage portion in present, and promised to leave her 200 l. more at his death, which was to be her full advancement, and did not intent she should come in for her customary share; and insists, That in 1675. the Testator made his last Will, and thereby gave the Plaintiff Sarah a Legacy, and Legacies to her Children, reciting, That he had already advanced her at her first Marriage, and that he had then promised to leave her 200 l. more at his death, and that the Legacies were given to the Plaintiff Sarah, in full of all such share and claim, as she might after his death have right to, or claim in any of his Estate, by virtue of the Custom of London, or otherwise; and insists, That the Plaintiff by the said Advancement on her first Marriage, her Father the Testator, having not declared his Will or other Writing under his Hand, that she was not fully Advanced, but declared the contrary by the last Will, she is thereby barred and excluded, by the Custom of London, from any other claim out of his Estate, than what is bequeathed by the last Will, being 500 l. which the Defendant will pay, she giving a general Release, which said last Will, provides she shall do. The Plaintiffs Council insists, That the said Declaration in the Will of 1666. was the Testators first Declaration of his intent, upon the marriage of the said Sarah, and that it was, being still under his Hand in writing, as sufficient, and vallid, as if it had been any other writing, and that it was produced not as a Will, but as an Evidence, and is still a writing under the Testators Hand, declaring, That his first Wife's Daughter the Plaintiff Sarah, was by him but partly Advanced, and that she was by the Custom of London, to have an equal Child's part of his Personal Estate, with his second Wife's Son, and then, that he could never by a Subsequent Will, oblige her to 500 l. Legacy in full, of all that is due to her by the Custom of London, without her consent, and the words of the last Will, by forbidding the Plaintiff Sarah to Sue for the Customary part of his Estate, or upon the account of not being fully Advanced, do strongly imply the intent at the marriage was, that what his said Daughter had in marriage, was but part of her Advancement. The Defendants insist, That by the Custom of London, a Declaration to let in a Child for a Customary part, aught to be by the Testators last Will, or by some other writing under Hand, remaining in force, and unrevoked, and that it ought to be an express Declaration, which the Will in 1666. is not, and the Testator declared by his last Will, that the Plaintiff Sarah was already Advanced upon her first marriage, and that the Testator promising, to leave her 200 l. more at his death, implies, that it was agreed, that she should have no more, and the Will in 1666. is Revoked and Canceled, and the Testators hand remains only to the middlemost sheet thereof. This Court declared, they would be Certified by the Recorder of London, whether a Declaration by a Will Revoked, be such a Declaration in writing, to let a Child have a Customary part of her Father's Estate. The Lord Mayor and Aldermen, By the Custom of London, a Declaration made by a Freeman by writing tho' such writing were made for his last Will, and Revoked, is such a Declaration as will let in his Child to have a Customary part of his Personal Estate. by the Recorder, Certified this Court, That by the Custom of the said City, a Declaration made by a Citizen and Freeman of the said City by writing, with his Name or Mark, Subscribed thereto, though such writing were made for his last Will and Testament, and the same afterwards by him Revoked, is such a Declaration as will let in a Child of such a Freeman to have his or her Customary part of his or her Father's Personal Estate. The Defendant insists, That the Lord Mayor, etc. were Surprised in making the Certificate, they conceiving themselves straightened in the words and directions of the Order; for that although the Will of 1666. had never been revoked, yet the same had never been a sufficient Declaration, according to the Custom, to let in the Plaintiff to have a Customary part, and they by the Order being restrained to certify, whether a revoked Will were a good Declaration; they did apprehend they were to take it, That the Testator had by his Will of 66. made a sufficient Declaration, according to the Custom, to let in the Plaintiff, which he hath not done; for the Custom of London in this case is. That the Sum certain that any Child had in part of such Advancement, aught to be expressed in such Writing or Declaration, or else the same is not of any avail; and produced Precedents for that purpose, that the same aught to be mentioned to the end, that in case such Child should be admitted to such Customary part it may be known what the Sum is, to the end it may be brought into with the rest of the Estate to the Testator. Whereto the Plaintiff insisted, That the Custom of a Sum certain to be mentioned appeared only by a By-Law called Judd's Law, in 5 Ed. 6. the which is no estabiished Law in the City to bind the Right of any, and there is a great difference in the By Laws in the City, which ought to respect their Government, and not bind the Right of any person which is governed by the general Custom of the City, and which is paramount to any of their By-laws, and by the Custom the Right of a Freeman's Child is as much preserved to him as any man's Right by the Common Law of the Kingdom, besides the naming of the Sum, is no more than in order to the settling the Accounts of the said Estate, which may be done before a Master in this Court. This Court upon Reading several Precedents on both sides, declared, That the said Certificate was conclusive, and that the Plaintiff must be let in for a Customary part of her Father's Personal Estate, and decreed the same accordingly. The Defendant was ordered to Account for all the Personal Estate of Bennony Honywood, Fo. 598. and the Plaintiff thereout to have her Customary part, her Marriage Portion being brought into Hotch potch with the rest of the Personal Estate, and the Plaintiff to discover the said Portion on Oath, and the Defendant to do the like as to what provision he had. The Defendant insists, What provision he had was Money deposited by his said Father in the hands of Mr. Colvile and others, to purchase Lands or Houses in or near London, in pursuance of Articles between the Defendants said Father and the Defendants Wives Father, which were made before the Marriage of the Defendants, which Lands and Houses so to be purchased is by the said Articles covenanted to be settled on the Defendant and his Wife for life, and for her Jointure Remainder in Tail, and was in consideration of the Defendants wives Portion, and Houses were purchased therewith in Bennony's life, and the Defendant is his Son and Heir. And the Defendant insists, What Money is deposited by the Father to purchase Lands in pursuance of Marriage Articles, is to be taken as Real, and not as a Personal Estate, and shall not be brought into . That what was so deposited as aforesaid, is to be taken as if the Defendants Father himself had purchased Lands and settled the same to the uses aforefaid, and ought not to be accounted a personal Estate of the Defendants Father, but as Land. This Court declared what was deposited by the Defendants Father to purchase Lands in pursuance of the said Articles, is to be taken as Lands, and not as personal Estate of the Defendants said Father; and also declared what was deposited as aforesaid, shall not be brought into , but the Defendant is to discover what he had from his Father upon his said Marriage. Prigg contra Day, 32 Car. 2. fo. 198. THat John Clay by his Will devised 100 l. Will. to the Plaintiff Philip Prigg Jun. and Deborah Prigg his Sister, in manner (viz.) 50 l. to the said Philip at his Age of 21 years, on day of Marriage, which should first happen by the Defendants his Executors, and in the mean time the whole 100 l. to be secured and improved by his Executors for their use; and in case either the said Philip or Deborah should die before payment of their Legacies, the Survivor to enjoy the whole 100 l. and if both die before payment of their said Legacies, than the Testator decreed the whole 100 l. to his Sister the Plaintiff Elinor their Mother, besides 100 l. to her to be paid within 6 Months after his death. That the said Deborah Prigg died unmarried and before 21, and before she had received the 50 l. Legacy, so that the whole 100 l. became due to the Plaintiff Philip Junior. The Defendants insists, That Deborah died before the Testator, and her Legacy of 50 l. became void. This Court was sully satisfied, Legacies of 50 l. apiece given to two, and if either die before 21, the Survivor to have all. One dies before the Testator, yet the Survivor decreed to have all. though Deborah died before the Testator; yet the said Devise of 50 l. to her did not become void, and being devised over to her Brother Philip the surviving Legatee, it belonged to him, according to the devise in the Will, the rather for that it being a contingent Remainder, and might vest after the death of the Testator so long as there was a Survivor it did not belong to the Executors, and for that the Testator, who lived for some time afterwards, did not alter the devise thereof by his Will, nor otherwise dispose thereof in Writing, and decreed the Defendants to pay the Plaintiff the two 50 Pounds: This Order was confirmed by the Lord Keeper. Sanders contra Earl, 32 Car. 2. fo. 102. THat the Plaintiffs late Husband Daniel Earl, Will. or some in Trust for him, was at his death seized in Fee, and also entitled to the Trust of a long Term of the Manor upon a Sore and Lands in Com' Nottingham, which said long Term was in being and subject to be disposed as she should appoint, so that he had full power to settle, devise or charge the same by his Will, and the said Daniel in consideration of a Marriage with the Plaintiff and 2000 l. Portion, he in 1676. by Will devised to the Plaintiff, besides a Jointure of 1200 l. and if she were with Child of a Son, he gave all his Lands and Tenements to such Son in Tail; but for default of such, he gave them to the Defendants his Brother and their Heirs, and if he had a Daughter, he devised to such Daughter 500 l. to be paid when she attained her Age of Sixteen, and the same to be secured out of his Lands aforesaid, and made his said Brothers Executors: That the Plaintiff had no Son, but a Daughter, who lived some time and is since dead, and the Plaintiff is her Administratrix, whereby she is entitled to her 500 l. presently. The Defendant insists, That the Plaintiffs said Husband devised to the Plaintiff 1200 l. and devised to her all her Plate, Jewels and Goods, and Stock in and about the House at Normanton, and made the Plaintiff Executrix till the last day of August after the Will, and if she (who was then with Child) had a Son by that time, than she to continue Executrix, otherwise the Defendants to be joint Executors, and made such devise to the Daughter, and the rest of his personal Estate he devised to his Executrix or Executors: That the Plaintiff Margaret having but a Daughter, the Defendants proved the Will, and are entitled to the Legacies therein to them devised, and the refidue of the personal Estate; and insists, That if the Plaintiff, as Administratrix to her Daughter, be entitled to the 500 l. yet she is not to receive it till such time as it is payable to the Child, if it had not died; neither is the Plaintiff entitled to any of the ready Money 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 Householdstuff 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 Householdstuff in and about my House, to, etc.] 470 l. ready moneys 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 aught 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 aught 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 nonpayment 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 satisfy the Plaintiffs said demand, that a Recognizance given by the Defendant, to abide the Decree may be produced and enrolled. This Court Ordered the said 536 l. Interest and Costs to be paid by the said Defendant, The Money decreed to be paid out of the Sequestered Estate, and the Commissioners have power to sell the Term, to raise the same. or out of the Sequestered premises, or the Security , and that the Commissioners of the Sequestration do sell such of the sequestered premises as are held for any term for the best price, and the Money 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 Judgement 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 dismissed. the Defendant Charles Statvile exhibited his Bill to be relieved against the Plaintiff and his Wife touching a Rend 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 Jointure: 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 Money 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 Money, and the Plaintiffs Wife being since dead, he hath Administration, and is entitled to the moneys: But the Defendants refuse to pay the same, insisting, That the said Decree and Proceed are abated, so that the Plaintiff now by his Bill seeks relief in the premises, 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, than 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 Judgement be signed and enrolled, can or aught to revive; and the Bill does not say, that any Decree or Final Judgement is signed and enrolled, 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 merely vexatious if the Plaintiff should revive his former Proceed, which if revived the now Plaintiff can have no Final Judgement, 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 enrolled. and the Plaintiffs demands by the New Bill are chief for Costs of Suits, which are extinguished by the death of the Plaintiffs Wife, and if he were entitled to a Bill of Revivor he could not revive for Costs, there being no Decree enrolled. This Court allowed the Defendants Demurrer, and dismissed the Plaintiffs Bill of Revivor. Raymond contra Paroch. Buttolph's Aldgate in Com. Midd. 32 Car. 2. fo. 517. THe Plaintiff being one of the King's Waiters in the Port of London, Privilege. and yet used the Trade of a Common Brewer, and executed his said place by a Deputy: The Defendants insist, He is not to be exempted from bearing the Office of Overseer of the poor in the Parish. The Plaintiff insists, That the King's Officers who serve his Majesty in Relation to his Revenue, aught to be exempted from Parish Offices, though they executed their places by Deputy, and use an other Trade, they being still liable to answer any misdemeanour committed by their Deputies, and if their Deputies should be absent at any time, they are bound to execute the same themselves, which often falls out, and Precedents of this Nature, have often been found, and hopes this Court will not take away any the privileges such Officers ought to enjoy in right of their Offices, and that a Supersedeas of privilege be allowed the Plaintiff, and his Writ of privilege stand. The Defendants insist, That the Plaintiff driving a Trade of a Common Brewer, and getting Money in the Parish, he ought to bear the Offices of the Parish, notwithstanding his said Office, and if any Privilege were due, it ought to be granted by the Court of Exchequer, and not by this Court. This Court declared, The King's Officer privilege from Parish Offices, tho' he drive a Trade in the Parish. That the King's Officers ought to have the benefit of their privilege, and the execution thereof by a Deputy, nor his dealing in another Trade, should not in any sort be prejudicial to him, he being to answer for any neglect or misdemeanour committed by his Deputy, for that it is not reasonable that the King's Servants or Officers, should have nothing else to subsist on, Such privilege grantable out of Chancery, as well as Exchequer. but their immediate Services or Places under his Majesty, and take no other employment on them; and although a privilege of that nature be grantable in the Exchequer, a Writ of privilege under the great Seal was, and aught to be taken in all respects as effectual, and therefore allowed the Plaintiff his privilege. Dominus Bruce contra Gape, 32 Car. 2. fo. 723. THe question in this case is, Deed. Will. Revocation. whether the Manor of Mudghill, is within the devise of the Duke of Somerset by his Will in August, 1657. of the Residue of the Estate unsold, for the benefit of his three Daughters, and the Lady Bruce his Grandchild, or whether it belongs to the Lady Bruce only, as Heir at Law, and whether the same be liable, and comprehended in the Trust, together with other Manors and Lands, to Satisfy the 19100 l. Debts only, or is subject with the other Lands in the said Deed and Will for Satisfaction of all the debts of the said Duke William. The Case is (viz.) that the Plaintiff the Lady Elizabeth, Wife of the Lord Bruce, is Grand child and Heir of William late Duke of Somerset, and Sister and next Heir of William also late Duke of Somerset, who was the only Son of Henry Lord Beauchamp, the Eldest Son of William Duke of Somerset the Grandfather, which said Duke William the Grandfather, did by deed the 13 Nou. 1652. Convey to the Lord Seymour, Sir Olando Bridgman, etc. and their Heirs, the Manor and Lands in Trust for payment of Moneys to the Lord John Seymour, and the Lady Jane Seymour: Then upon further Trust to pay Debts, amounting to 19100 l. and after in Trust for raising 10000 l. for the Lord John Seymour, and 6000 l. for the Lady Jane Seymour, and trusties to account yearly to the right and next Heir of the said Duke, with a power of Revocation in the said deed, as to all but the said 19100 l. debts; and that the said Duke William 19th of April 1654. as to a further provision for the payment of the Debts by deed, conveyed to the Earl of Winchelsea, and the Defendant Gape and others, and their Heirs, the Lands in Wilts and Somerset, (worth 30000 l. and sufficient to pay all his Debts) to himself for life, and after for payment of Annuities, and after his death, then to the use of the last trusties and their Heirs, upon special Trust, that they should lease out the premises, and with the Money thereby raised, and otherwise with the profits, pay all such Debts for which the Plaintiff stood engaged for the said Duke, and that the overplus of the said Money and Profits to be paid, and the Lands unsold, to be conveyed to the right Heirs of the said Duke, wherein was a power reserved in the said Duke by deed or Will, to revoke the said Uses or Trust: That the said Duke by deed, the 20 of April 1654. reciting that the Lord Beauchamp the Eldest Son, died since the deed of the 13 of November 1652. and had left only one Son, and the Plaintiff Lady Bruce, and that the Lady Bruce was left unprovided for, and reciting the deed of the 19 of April 1654. made an Additional provision for the payment of his debts, which made the Lands the deed of 1652. of a greater value than would satisfy the said Trust, and therefore appointed the last trusties in the deed of 1652. should out of the Money to be raised by Sail of those Land, and the profits thereof pay the Plaintiff Elizabeth, Lady Bruce 100 l. per Annum, till her Age of 17, and after 300 l. per Annum, and then after the debts in the deed of 1652. and Portions to the Lord John, and Lady Jane Seymour, then to pay Elizabeth the the Lady Bruce 6000 l. portion also, with power of Revocation. That afterwards the said Duke by Will, 15 of August 1657. having as aforesaid, secured the said 19100 l. debts, devised to his Son, the Lord John Seymour, and the Heirs Males of his Body, the said Manor of Mudghill, and because the Lady Ann Beauchamp his Sister in Law, had the same as part of her Jointure, and the same was Leased out for the life of Pleydall, his Will was, that till the same fell in possessision to the Lord Seymour, the trusties in the deed of 1652. should pay him maintenance, and they to convey to him, when they thought fit, and by the said Will, taking notice of the deed in 1652. and of the 19 of April 1654. and also of his power of Revocation, appointed and declared the Trusts in those deeds for his Grandson. William Lord Beauchamp, and the Plaintiff the Lady Elizabeth Bruce, or for the benefit of his Right Heirs, should cease, and the same was thereby revoked, and appointed the trusties in those deeds, to convey the said premises to the Lady Frances his Wife, and the Earl of South-hampton, and the Earl of Winchelsey, and Sir Orlando Bridgman, and the said Gape and others, and their Heirs upon Trust, as to Mudghill, as he before had declared, and as to the rest of the Manors and Lands on Trust, for payment of all such debts in the said Indentures to be paid, and unpaid at his death, and for freeing his personal Estate, and Executors from the payment thereof, and of the Trust in the Deed of 1652, for the Lady Jane Seymour, and after these Trusts performed, all the Lands unsold and the Reversion thereof be disposed by the Lady Duchess of Somerset his Wife, and the trusties by his Will and their Heirs for 21 years, from his death to such as the said Lady Duchess should appoint, and in default of such appointment, for the raising such sums of Money for the Plaintiff Elizabeth's portion and maintenance, as the Deed of the 20 of April 1654. appoints or in default of such appointment by the Duchess, to go to such Person to whom the Trust of the Inheritance of the premises, after the 21 years is limited by the Will, and the conveyance so to be made to the said Duchess, and the other person named in his Will, should be upon further Trust, that the said Duchess and the other person should stand seized of the said Lands unsold, and the Reversion of such part thereof, as should be leased out for lives or years in Trust for William Lord Beauchamp, and the Heirs Males of his Body, and for want of such Issue forth benefit of John Lord Seymour for life, and after for the benefit; of the first, and every other Son of his Body, and the Heirs Males of their Bodies respectively, and for default of such Issue for the benefit of all his Daughters, and the Plaintiff the Lady Elizabeth Bruce his Grandchild, and all the Daughters of John Lord Seymour and their Heirs, equally as Tenants in common, and not as Joint Tenants, which Will the said Duke in 1660 ratified by new publishing thereof, and all the trusties in the deed of 1652 being dead, except Sir Orlando Bridgman and Gape, and the interest in Law being in them by Survivor ship, Sir Orlando Bridgman knowing the debts in the deed of 1652 to be paid, conveyed all the Lands therein mentioned to the said Duchess of Somerset. That in 1671, the said William Lord Beauchamp Duke of Somerset died without Issue, whose Heir the Plaintiff the Lady Bruce is, and after the Lord John Seymour became Duke of Somerset and died without Issue, by whose death the Plaintiff the Lady Bruce is entitled as Heir to Duke William her Grandfather, to the reversion in fee of Mudghill, Duke John being only Tenant in Tail thereof, and aught to enjoy the same, it not being liable to pay any debts, but is discharged thereof by her Grandfathers Will, and not disposed from her by any Act, the 19100 l. being all paid. So that the questions now before the Court were, whether the reversion of Mudghill expectant upon Pleydalls Estate for life, as well as the residue of the Estate be liable to all the debts, which Duke William owed at his death, or only to the 19100 l. debts. And secondly, Whether the reversion of Mudghill, as well as the residue of the Estate, after satisfaction of all the debts of Duke William, aught to be for the benefit of all Duke William's Daughters, and the Plaintiff Lady Bruce and their Heirs equally, or the said reversion to go entirely to the said Lady Bruce, as right Heir to Duke William. As to the first question, the Defendant insisted the said Reversion, as well as the other Estate is liable to all the debts, for that by the deed of 1652. Mudghill was conveyed for raising of Money for the payment of 19100 l. debts, and all other debts that he should owe at the time of his death, in which deed it is provided, that after the said debts be paid, he might by any deed, or his last Will, Revoke all or any of the said Trusts, other than as concerning the 19100. debts, yet made no Revocation, other than by his last Will, and therein he Revoked, only those Trusts that were for the benefit of the Lord Beauchamp, or the Lady Elizabeth Seymour or his own right Heirs, and by the said deed, the Legal Estate in Mudghill, is settled in the trusties and their Heirs, and the Duke had no power to Revoke the uses or Estates, till after the 19100 l. was paid, and the said Duke directing his trusties to convey Mudghill to his Son John, he did thereby dispose of an equitable interest, only of the reversion of Mudghill, and the 19100 l. was not paid in the said Duke's life-time, but great part remains unpaid, and he hath contracted several new debts, since the 20th of April 1654. which the Defendant since paid upon the Securities of the said Lands, and Mudghill is one of the Manors conveyed by the deed of 1652. for the payment of 19100 l. and all other the debts he should owe at the time of his death; and altho' the same be directed by the last Will of the said Duke, to be settled upon the Lord John Seymour, and his Heirs Males, yet the said Duke by deed of 1652. had no power to revoke the same for the payment of his debts, or if he had, he did not revoke the same by the said Will; but left Mudghill and other the premises subject to the payment of his debts; and the trusties understanding such to be the Duke's intention, never settled Mudghill on the said Lord John Seymour, who being lately dead without Issue, the same is subjected to the payment of the said Duke William's debts, and when debts are satisfied, the overplus of the Moneys, and the said Mudghill, and all other the premises ought to be divided, according to the intent of the said Duke's Will, and by the said Duke's death, and the Releases of the said trusties, the interest in Law became vested in Sir Orlando Bridgman, and he conveyed Mudghill, etc. unto the said Duchess, and the said Gape and other the trusties and their Heirs, that they might therewith pay the said debts; and though there be sufficient besides Mudghill to pay all the debts, yet by the Will upon which this question doth arise, that thereby the Trust for the Right Heirs of the said Duke, are revoked in express Terms, so that by any deed preceding the said Will, the Plaintiff the Lady Bruce cannot claim any advantage as Heir, the rather, for that by the Will it doth appear, that Duke William had an equal regard to his own Daughter, and the Plaintiff the Lady Bruce his Grandchild and Heir, and it cannot be presumed, that he would more concern himself for the Welfare of a Granddaughter, than his own Daughters, nor was the said Reversion of Mudghill, disposed to the Plaintiff by any words in the Will, though he did by express words in his Will, Revoke all Trusts, for the benefit of his Heirs in Mudghill, as well as the other Lands, and made other particular provisions further, which shows, he did not intent that for her, for if he had, he would not have Revoked the former Trusts, as to that by which she would have been entitled as Heir, especially, when he hath devised all the Surplus of his Estate, which involves Mudghill as well as the rest, amongst his own three Daughters, and her equally, nor doth it any where appear, that Mudghill is in any sort exempted from Satisfaction of the Creditors, nor could it so be by the said deed made by Sir Olando Bridgman, who best knew the intention of all Parties in this matter. But the Plaintiffs insisted, That the said Duke could not intent Mudghill should be conveyed to the uses declared in the Will, for that the same is to be conveyed to the said Lord John, and the Heirs Males of his Body, which is an Estate of Inheritance, and he had power by a common Recovery to have bound the remainder, and the reversion after the Estate tale is not Assets in Law; and therefore cannot be conceived for the payment of his debts, and the rather, for that he recites deeds in 1652. and April 1654. and directs the trusties therein, to convey all his Lands and Manors in those deeds, to his Duchess and others, as to the Manor of Mudghill, as before he declared by his Will; and as to all the rest of the Manors, he declared for the payment of his Debts, so that (all the rest) excludes the Manors of Mudghill, and upon the whole Will it doth appear, the Duke intended no Reversion should pass, but Reversions after Estates for life or years, and therefore this Reversion of Mudghill, which is after an Estate Tail, doth not pass, and if it had been intended to pass, he would have limited it to the said Lord John for life, without remainder to his first or other Sons in Tail, for he had before given him a better Estate in Mudghill to him and the Heirs of his Body, and the trusties were not to settle Mudghill accordingly, until the same fell in possession, the same being yet for Pleydalls life. This Court on reading the several Deeds and Will, declared, That although the Lord John, might possibly have an Estate Tail in him, and doct it; but he not doing it, this Court can take no notice of it, though probably he did forbear to do it, because Duke William had Signified his desire, Reversion after an Estate in Tail subject to Trusts for payment of debts. that he should not have an Estate executed to him, till it should fall in possession, and not before, except the trusties pleased: But the case must be taken, as it doth appear before the Court, that is, Mudghill was once liable to the payment of the Debts of Duke William, and tho' 'tis pretended that the Will hath taken out Mudghill, yet the said Will doth only take out an Estate Tail, but the Revesion thereof, when the same falls in possession, is subject to the same Trust, and goes in company with the other Reversions, and the same is legally conveyed, and doth pass in the general words, and therefore this Court is of Opinion, that the Reversion of Mudghill, is part of the unrevoked Estate, and that the Lord Bridgman did well, when he made the said Conveyance to the Lady Duchess, and that when the 19100. l. and the said other debts are paid, to which Mudghill is as well liable, as the other Manors and Lands, than the trusties ought to convey all the premises in Fourths, and decreed accordingly. maddock's contra Wren, 32 Car. 2. fo. 22. THe question in this Cause is, Mortgage Account. with what profits the Defendant Wren shall be charged in ease of the Plaintiff, who claims the premises in question, by virtue of a second Mortgage, and is admitted to a Redemption, on payment of what shall appear due to the Defendant Wren, who hath the prior Mortgage? The Plaintiff insists, That the said Mortgage being of a Lease, and the Defendant Wren having possession by Attornment of Tenants, he ought to have received the profits, whereby his Mortgage would have been fully satisfied, yet he permitted the other Plaintiff Dorothy, Wife of the Plaintiff Maddox the Mortgager, to receive the same; and therefore the said Wren ought to be charged, whereby the Plaintiff may be let in to have Satisfaction of his Debt. This Court declared, The prior Mortgagee upon Redemption by the second Mortgagee, shall be charged with the profits, by whom soever Received after the Second Mortgage. That the Defendant Wren ought to be charged with the Rent, whether received by the Wife or any other Person, after the Plaintiffs second Mortgage made, but all received by her, before the said second Mortgage, he ought not to be charged. Coals contra Hancock, 32 Car. 2. fo. 112. THat Benjamin Coals the 11th of June, Revocation of a Will. 1678. made his Will in writing, and thereby gave to and amongst his then Children, naming them, (viz.) Benjamin, Samuel, Mary and Hannah, Portions, and appointed his Real Estate to be Sold, and added to his Personal Estate, and made Elizabeth his Wife his Executrix, and the Testator being a Melancholy Person, and fearing he might forfeit his Estate, by making himself away, to prevent a forfeiture, by deed the 14 of June 1678. made over all his Personal Estate to trusties, first to pay his debts, then to pay some Legacies, and all the rest of his Estate to be divided amongst the aforesaid four Children, That the Testator afterwards died a natural death; but before his death, had another Child, (viz.) Sarah, who is not provided for, either by the said Will or Deed. The question is, whether the said Will be Revoked by the said Deed of Trust, that if it be Revoked, than the said Sarah insists, to have her share of her Father's Estate, and that he ought to be looked upon, as dying Intestate, and at least the Personal Estate ought to be distributed by the Act for distributing Intestates Estates, and the deed ought not to stand in her way, for that great part of the Estate, did consist in debts, which were made after the said deed, and did not pass to, or was vested in the said trusties, and that it is against Natural Right and Conscience, that her Father leaving a considerable Estate, she should have nothing of it. This Court on reading the said Deed and Will, is of opinion, A Deed of Trust, no Revocation of a Will that the said deed of Trust, is no Revocation of the said Will, being not made with intent to revoke the same, but only to prevent the forfeiture, in a case which never happened, and Decreed the same to be set aside, and the Personal Estate to be distributed according to the Will, and the remainder to be divided amongst the four Children, Benjamin, Samuel, Mary and Hannah, Estate Devised to be sold for increase of his children's Portions, and a Child is born since the Will, that Child shall have a share. the same being given to them by Name, and as to the Real Estate, it being ordered by the Testator, to be added to his Personal, for increase of all his children's Portions, and the said Sarah being born before he died, the same to be Sold and divided amongst the five Children, (viz.) Benjamin, Samuel, Mary, Hannah, and Sarah equally. Sale contra Freeland, 32 Car. 2. fo. 272. THat Thomas Freeland the Defendants great Grandfather, Will. Settlement. Revocation. being Seized of the premises, did by his Will in writing, devise the same to Nicholas his Son for life only, and afterwards to his Grandson John, late Husband of the Defendant Frances, and Father of the Defendant John, and his Heirs for ever, That the said Thomas and Nicholas being dead, John the Grandson entered, and for 300 l. Mortgaged the premises to the Plaintiff, and not long after the said John, on confidence of the power he had to dispose of the premises, made his Will, and the Defendant Frances Executrix, and devised the premises to be Sold, for payment of his Debts. But the Defendant insists, That the said Thomas the great Grandfather, had no power to dispose of the same premises, and if he had, he did not pursue it regularly, for that he had made a Settlement of the premises in 1651. upon one Henry Weston, and his Heirs, to the use of him the said Thomas for life, and after to Nicholas his Son for life, and after to the use of the said John his Grandson, and the Heirs of his Body, with remainder over, and that the Defendant John the Grandson, by virtue of the said deed as Heir in Tail, claims the premises, whereas (if any such deed were) it was with a power of Revocation by any Writing or Will in writing, to be executed in the presence of three Witnesses, and was revoked by his making his said Will, in the presence of three Witnesses, though one of them then present, did not subscribe the same, That the said John the Grandson, had the full power of the Estate, and the grant made to the Plaintiff, aught to be supported in Equity, being for valuable consideration, though the power was not literally pursued in the Circumstances of three Witnesses, the intent of the Person appearing, as sufficiently by two Witnesses, as if there were three, and submit to the Judgement of this Court. The Plaintiff farther insisting, That the said Thomas the great Grandfather, takes notice in the preamble of his Will, of the power by him reserved upon the said Settlement, to make any alteration thereof during his life; and then by the said Will deviseth the premises to the said John his Grandson in Fee, and he Mortgages to the Plaintiff, and there is no Colour, but the Defendants ought to redeem, or be foreclosed. This Court (it appearing that there was more than two Witnesses present at the publishing the Will, A Settlement with power of revocation by Will in writing, executed in the presence of three witnesses, but one of them did not Subscribe his Name, yet Decreed a sufficient Revocation. though two only Subscribed their Names thereto, and upon hearing the words of the power, and also the Will of the said Thomas Read) declared, that as this case was Circumstanced, there ought to be a Redemption or a foreclosure, and that the Will although but two Witnesses to it, did sufficiently revoke the said deed of Entail. Rose contra Tillier, 33 Car. 2. fo. 435. THat William Tillier deceased, Copyhold Surrendered on Condition to pay 200 l. to Katherine, at 21 years of Age and if she die before 21 without Heirs of her Body, then to the Surrendree. Katherine dies before 21, leaving a Son, Decreed the 200 l. to be paid to the Son, and the Lands to stand charged therewith. 14 Car. 2. Surrendered Copyhold Lands of Inheritance, to the use of the Defendant J. Tillier his Heirs and Assigns for ever, upon condition, that the Defendant should pay, or cause to be paid to Katherine Tillier, the Daughter of the said William Tillier 200 l. when she should accomplish the Age of 21 and if the said Katherine should die before 21, without Heirs of her Body, than the said 200 l. to be for the use of the said Defendant; but if default should be made by the said Defendant, than the said Copyhold Lands should be to the use of the said Catherine, her Heirs and Assigns, and the said Surrender to be void; and the said William Tillier after the said Surrender, and before he died, by writing appointed the said Defendant not only to pay the said 200 l. to the said Katherine, but also 6 l. per Cent. till such time as the same became due: That the Plaintiff married the said Katherine, and had by her one Son named George; that after Katherine died, and then George and the Plaintiff took Administration to them both, whereby he is entitled to the said 200 l. with damages. The Defendant insists, That Katherine died before the Age of 21, and so he is not liable to pay the said 200 l. or to give any Account of the Lands or Profits in the Surrender. This Court decreed the Defendant to pay the Plaintiff the said 200 l. and that the said Lands so surrendered stand charged therewith. Thompson contra Atfield, 33 Car. 2. fo. 412. THe Bill is to discover a purchase Deed of Frogpoole, Marriage Settlement. purchased by Henry Atfield, the Plaintiffs Great Grandfather, to him and his Heirs, and that William Thompson the Plaintiffs Grandfather, married Mary the eldest Daughter of the said Henry Atfield, who declared that he had made the purchase aforesaid, for the benefit of the said William and Mary his Wife, and for the Heirs of the said Mary, and that he would settle the same accordingly, but the said Henry Atfield dying before any such Deed was executed; yet the said William and Mary were in possession long before the death of the said Henry, and paid no Rent, and the said Henry leaving a Son at his death, (viz) John Atfield the Defendants Father, who having a great affection for Anthony Thompson the Plaintiffs Father, who was the Son and only Child of the said William and Mary his Aunt, a Match was proposed between the said Anthony and Elizabeth Smith the Plaintiffs Father and Mother, which took effect; but before and in consideration of the said Marriage the said John Atfield the Defendants Father settled the said premises on the said Anthony the Plaintiffs Father and his Heirs for ever, and the said Anth. had by the said Elizabeth the Plaintiff his eldest Son and Heir. But the Defendants pretend the said Deed is defective in Law, to have which Deed made good, and supply the defect thereof by Equity by the Defendant, according to the intent of the original Settlement made by John Atfeild, the Defendants Father, is the Bill. The Defendant insists, There could be no such Marriage Agreement for settling the premises as aforesaid, for that Mary sued her Mother and had her portion out of the personal Estate, and though the Defendants Father might intent to give the Plaintiffs Father the premises, 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 premises, for that by the Plaintiffs own showing 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 aught 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 Seizing, 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 Seizing, and made on such valuable Consideration as Marriage) decreed the Defendant to execute Livery and Seizing in the said Deed, and make farther assurance of the said premises to the Plaintiff and his Heirs, and the Plaintiff is decreed to enjoy the same against the Defendant. Barker contra Hill, 33 Car. 2. foe 278. THe Plaintiff having Contracted with the Defendants Father for the purchase of a Copyhold Estate, Upon a Contract for Copyhold Estate, and purchase Money paid, the Bargainor dies before Surrender, his Heir decreed to surrender. the Plaintiff paid the purchase Money, and the Defendants Father agreed to surrender the premises 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 premises to the Plaintiff, and the Lord of the Manor presently to admit the Plaintiff Tenant to the premises. 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 trusties in the said Deed should dispose of the moneys by them raised by profits and sale of the premises, 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 Judgement of the Court, whether all or how long the said 100 l. per Annum shall or aught to be allowed in this point, as also the original Cause which was heard 19 Nou. 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 aught 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, aught 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 Helena, 33 Car. 2. fo. 270. THe Plaintiffs Rings Bill is for the Writings and Estate of Sir Henry Helena, 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' Somerset on himself for life, after to the Heirs of his Body, with power to make his Wife a Jointure 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 Pools Tenement, part of the premises, and Sir Henry was forthwith to suffer a Recovery to dock the Entail of the premises, Consideration. and in consideration thereof, the Plaintiff Ring was to settle his Estate in Dorset and Somerset, to the use of himself in Tail, with Remainder in Tail to Sir Henry Helena, 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 employed 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 Enrolled, 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 Enrolled Deed to make the Defendant Tenant to the Praecipe, and Sir Henry declared, the said Recovery to be to the uses in the said Agreement, and the Plaintiff Ring by his said Deed Covenants with the said Sir Henry, to stand seized of the Parsonage, and other Lands in Yeovel in Com' Somerset, and also in Com' Dorset being all the Estate he was then seized of in Fee in the said Counties, and settles them to the uses in the said Agreement, Agreement. That the said Sir Henry declared himself well satisfied with what he had done, and paid the charges of the Writings: That the Plaintiff Ring two years after had Issue Male, and Sir Henry after married and died without Issue, and without making any Jointure, or suffering any other Recovery, and doing any other act but selling the Inheritance of one Farm, so the premises came to the Plaintiff Ring who entered, but the Defendant Helena the only Son of Richard Helena, who was Uncle of the said Sir Henry, wrought on Sir Henry to make a Will, and to Devise the Estate to the Defendant Helena and his Heirs, which Devise the said Sir Henry would not make. The Defendant insists, That the Settlements on the Plaintiff Ring were Forged, and that the said Ring never made any Settlement of his Estate on the said Sir Henry, or if he did, that nothing passed thereby but only by way of Covenant to stand seized, and that if the Plaintiff Ring hath got any such Deed to lead the uses of the said Recovery, he got it by Fraud, and that if there was such a Deed of May 1673, which was after the Recovery to declare the uses thereof, it would not alter that of the 26 of March, for that the Plaintiff is a Stranger in Blood to the said Sir Henry, and it doth not appear, that any Inrolment or due Execution was made of the Plaintiffs Rings Settlement, so that the pretended Deeds on both sides are void, and not to be supported in a Court of Equity; but the Plaintiff Ring may bring an Action at Law where it is proper to be tried, and where the Defendant having a good Title under the Will of Sir Henry, will make his defence. The Plaintiff insisted, That the Defendant objected two matters against the Plaintiff Rings demands, (viz.) Forgery and Fraud, and if he will insist on the Fraud, he must admit the Deeds to be executed, and the Defendant admitting de bene esse, the Deeds to be executed, and to insist only on the Fraud and Circumvention. This Court inspecting the said Deeds declared, there was great suspicion of the reality of the said Deeds, but taking into consideration the inequality of the said Estates in the value, though not material in this case, yet it was a strong presumption, that the said Sir Henry Helena did not knowingly leap into such a bargain, and then the inequality of assurances is as bad, the said Sir Henry Heel's Settlement on Ring being a legal Estate, Consideration. and mentioned to be in consideration, that Ring had made a good Settlement of his Estate which he had not, the same being void in Law, and not to be made good by Equity, and the subsequent inconsistent. Acts of offering the Estate to be sold, and Rings negotiating the affair were above all the rest bad and apparent Badges of Fraud and Circumvention in Ring, Badges of Fraud. in obtaining the said Deeds from the said Sir Henry Helena, and it is remarkable in the Case, that Sir Henry by his Will, devised his Estate to the Defendant Helena a little before his death. This Court therefore dismissed the matter of Rings Bill, but upon Heel's Bill decreed the Agreement of April, and the two Deeds of May 1673, obtained by the said Ring from Sir Henry, be for ever hereafter damned and set aside, and Ring to reassure to the Defendant Helena, and a perpetual Injunction, not only to stay all Suits at Law touching the premises, but also for quieting the said Helena in the Possession. come Craven & al' contra Knight & al' 34 Car. 2. fo. 732. THe Bill is that the Defendant Geo: Bankrupts as to partners. Widows being indebted to the Plaintiffs, became bound to them in several Bonds, and the said Widows and the Defendant Berman, for several years past were Copartners, and Widows by Articles of Copartnership, was entitled to two thirds of the whole Stock, and the Defendant Berman to one third: That the said Widows and Berman the 25 of August last became Bankrupts, and a Commission of Bankrupsy awarded against them, the Commissioners of Bankrupts assigned all the Estate of the said Bankrupts, to the Defendant Wright and others, and refuse to let the Plaintiffs Creditors of Bankrupts to come in, and intent to divide the said Estate amongst the Joint Creditors of Bankrupts, by reason whereof the Plaintiffs debts will be utterly lost. The Defendants insist, Joint debts to be paid out of the Joint Stock. it was agreed by Indenture of Copartnership, that all such debts as should be owing on the joint account, should be paid out of the Joint Stocks, and at the end of the Partnership each Copartner take and receive to his own use, his share of Joint Stock, and the Joint Stock and Trade should not be charged with the private or particular debts of either of the said Partners; but that each should pay their private debts out of their particular Estate, not included in the said Joint Stock, that if both the said Partners should be living at the end of the first three years of the six years, that the said Berman should come in Joynt-Partner accordingly, and during the Joint Trade, the said Copartners became Jointly indebted to the other Defendants Wright, etc. in 6000 l. and that Widows became indebted to the Plaintiff as aforesaid, without the consent of Berman, and the Moneys due on the said Bonds was not brought into the account of that Joint Stock, and the said Widows was only a Surety, and received none of the Moneys; and the Defendants insist, that the Joint Creditors ought to be first paid out of the Estate in Partnership, and that the Commissioners have no power to grant the Joint Estate to pay the Plaintiffs, they being separate Creditors of Widows, and if a Surplus of the Joint Estate after the Joint Creditors be paid, than the Plaintiffs can have but a Joint Moiety of such Surplus towards their Satisfaction, the said Bermans' Moiety being not liable to pay the said Widows separate debts, and the debts then claimed, were the proper debts of the said Widows, and that after all the Joint debts are paid, there will be an Overplus, so that thereby the said Berman will be discharged, and have Money paid to him; but if the Plaintiffs and other separate Creditors of Widows be admitted to the Joint Estate, there will not be sufficient to pay the Joint Creditors, so thereby not only Bermans' Estate will be applied to pay Widows debts, Separate Creditors. but will be liable to the Joint Creditors; That there can be no division of the Joint Estate, whereby to charge any part thereof with the private debts of either party, and till the Joint debts are paid, and till division be made of the Surplus, both parties are alike interessed, and every part of the said Joint Estate; that the Commissioners have no power by the Commission, to Administer an Oath to the Plaintiffs, for proof of their debts, they claiming debts from the said Widows only, and the Commission is against Widows and Berman Jointly, and not severally, and therefore cannot admit of the Plaintiffs Creditors. This Court declared, That the Estate belonging to the Joint Trade, as also the debts due from the same, aught to be divided into Moieties, and that each Moiety of the Estate ought to be charged in the first place, with a Moiety of the said Joint debts, and if there be enough to pay all the debts belonging to the Joint Trade, with an Overplus, than such Overplus ought to be applied to pay particular debts of each Partner; but if sufficient shall not appear to pay all the Joint debts, and if either of the Partners shall pay more than a Moiety of the Joint debts, than such Partner is to come in before the said Commissioners, and be admitted as a Creditor for what he shall so pay over and above his Moiety, and decreed accordingly. Charles Howard contra le Duke de Norfolk & al', 34 Car. 2. fo. 722. THe Plaintiff by his Bill seeks to have Execution of a Trust of a Term of 200 years of the Barony of Grostock, The Case was this. The Earl of Arundel (the Duke of Norfolk's Father) by Lease and Release, Perpetuities, or Entailing a Term for years with Remainders over. Anno 1647. settled the Barony of G. and other Lands to himself for life, then to the Countess Elizabeth his Wife for life, and after her decease, there is a Term limited to the Lord Dorchester, and other trusties for 200 years, under a Trust to be declared in a deed of the same date, with the Release; and the Limitation of the Inheritance, after the Term of 200 years, is first to Henry Howard, now Duke of Norfolk, and the Heirs Males of his Body, then to Mr. Charles Howard, the now Plaintiff (Brother of the said Henry) and so to all his Brothers Successively in Tail Male remainder over. Then by the said other Deed, the Earl declares the Trust of the Term of 200 years, and that deed in the reciting part declares, that it was intended the said Term should attend the Inheritance and the profits should go to such persons, and in such manner as was therein after limited (viz.) to Henry Howard now Duke of Norfolk, and the Heirs Males of his Body, so long as Lord Thomas, Lord Maltrevers Eldest Son of the said Earl of Arundel or any Issue Male of his Body should be living; but in case he should die without Issue Male in the life-time of Henry Howard, not leaving his Wife enseint with a Son, or in case after the death of Thomas, without Issue Male, the Honour of the Earldom of Arundel should descend to Henry Howard, than Henry Howard and his Heirs to be excluded of the Trust, and then it should be to (Charles the Plaintiff) and the Heirs Males of his Body, remainder in like manner to other Brothers. After this, the Contingency doth happen, for Thomas Duke of Norfolk dies without Issue, and the Earldom of Arundel, as well as the Dukedom of Norfolk, descended to Henry now Duke of Norfolk, by Thomas his death without Issue, presently upon this, the Marquis of Dorchester the Surviving Trustee, Assigns the Term to one Marriott, he Assigns it to the now Duke of Norfolk, and the Duke suffers a Recovery, to the use of him and his Heirs, and the Plaintiffs Bill is to have execution of the Trust of this Term, to the use of himself and his Heirs Males of his Body. The Defendants insist, That by the Assignment by Marriott, to my Lord Duke Henry, the Term was Surrendered, and quite gone, that the Common Recovery which barred the remainders, which the other Brothers had, would also be a Bar to the Trust of this Term, and that the trust of a Term to Henry and the Heirs Males of his Body, until by the death of Thomas without Issue, the Earldom should descend upon him, and after that, to Charles and the Heirs Males of his Body, was a void Limitation of the remainder to Charles. The Plaintiff insists, Though the Term by the Survivor is gone, and Merged in the Inheritance, yet the Trust of that Term remains in Equity; That this is not a Term that attends the Inheritance, but it's a Term in gross, and so not barred by the Recovery, and that the Limitation of the remainder in Contingency, is good in Law, and Relief ought to be had in this Court. The Lord Chancellor Nottingham (the Case being of great Consequence) calls the Judges to his Assistance, (viz.) the Lord Chief Justice Pemberton, the Lord Chief Justice North, and the Lord Chief Baron Montague, and they made one single point in the case. Whether this Contingent Trust of a Term limited to the Plaintiff Charles, and the Heirs of his Body, upon the dying of Thomas without Issue Male, whereby the Honour did descend to Henry, be good in point of Creation and Limitation; for as for the Recovery, if this be not a good Limitation in point of Creation, the Recovery will do nothing, so that supposeth it to go along with the Inheritance, and if this take effect, than it will suffer no prejudice by the Recovery: And as for the Assignment by Marriott to the Duke, if this Court decree it for the Plaintiff, than it is a Breach of Trust, and then he must answer for it, and so must the Duke, for it is a Surrender to a person, who had notice of the Trust: If for the Defendant, than it is of no weight. So that the whole rests upon the first single point (viz.) whether it be a good Limitation upon the Contingency to Charles, or as they call it, Springing Trust. a springing Trust. And the said three Judges were all of Opinion, that it was a void Limitation, and that it ought to be Decreed for the Defendant. They said, Term in gross, and a Term attending the Inheritance the difference there is great difference as to the Limitation of Terms that are in gross, and Terms that attend the Inheritance, as to Terms in Gross, they are not capable of Limitation to one, after the death of another, without Issue; but in Termsattendant upon an Inheritance, there may be such a Limitation, if the Inheritance be so limited, and not else: Now the Term is capable of a Limitation to Henry, and the Heirs Males of his Body, and for want of such Issue to Charles, and the Heirs Males of his Body; because it hath an Inheritance to support it: But now to put another limitation upon it, that upon the dying of Thomas without Issue, whereby the Earldom shall descend, this shall go over to Charles, that cannot be, for it hath no Freehold to support it, and so it's a Term in gross; further, there cannot by the Rules of Law or Equity, be a Remainder for years, of a Term limited after an Estate Tail, neither directly, nor upon Contingency; as in Burges' Case, but the Law will allow a remainder directly upon an Estate for life; so likewise upon a Contingency, if that were to happen during the Continuance of the particular Estate: But this case is a step further, and not to be allowed; they relied chief upon Child and bail Case, which was put thus by Chief Baron Montague, a Devise by A. of a Term to William his Eldest Son, and his Assigns, and if he die without Issue, then to Thomas his youngest Son. It was Judged in the Exchequer Chamber, to be a void remainder, because thereby a perpetuity would ensue, though it was argued in that case, that it was given upon a Contingency to the younger Son, which would soon be Determined, and end in a short time. Chief Baron Montague put this for Law, a Term may be limited to one, and the Heirs Males of his Body, upon a Contingency to happen first with Limitation over, if that Contingency do not happen, it is a good Limitation, as if a Term be limited to the Wife for Life, and then to the Eldest Son, if he over-live his Mother, and the Heirs Males of his Body, the remainder over to a younger Son, if the Eldest Son die in the life of the Mother, the Limitation to the second Son may be good, but if there be an Instant Estate Tail created of a Term, though there be a Contingency as to the expectation of him in remainder, yet this is such a Total Disposition of a Term, as after which, no Limitation of a Term can be; and so the Judges were of Opinion, that the Plaintiff had no Right to the Term, but the decree ought to be for the Defendant. The Lord Chancellor Nottingham differed from the Judges, and Decreed for the Plaintiff. He put some steps or Preliminaries, which he agreed with them, and which were clear. 1. That the Term in question, though it were attendant on the Inheritance at first, yet upon the happening of the Contingency, it's become a Term in gross. 2. That the Trust of a Term in gross, can be limited no otherwise in Equity, than the Estate of a Term in gross can be limited in Law. 3. The legal Estate of a Term for years, whether it be a long or a short Term, cannot be limited to any Man in Tail, with the remainder over to another after his death without Issue, this is a direct perpetuity. 4. If a Term be limited to a Man and his Issue, and if that Issue die without Issue, the remainder over, the Issue of that Issue takes no Estate, and yet because the remainder over cannot take place till the Issue of that Issue fail, that remainder is void too. Reeves Case. 5. If a Term be limited to a Man for his life, and after to his First, Second, and Third Son in Tail Successively, and for default of such Issue the remainder over, though the Contingency never happen, yet the remainder is void, though there were never a Son born to him; that looks like a perpetuity, Sir William Buckhursts Case. 6. One Case more, and that is Burgesss Case; A Term is limited to one for life, with Contingent remainders to his Sons in Tail, with remainder over to his Daughter, though he had no Son, yet because it was foreign and distant, to expect a remainder after the death of a Son, to be born without Issue, that having a prospect of a perpetuity, was adjudged void. 7. If a Term be Devised, or Trust of a Term limited to one for life, with twenty remainders for life Successively, and all the Persons in Esse at the time of such limitation, these are all good remainders. 8. A Term is Devised to one for 18. years, after to C. his Eldest Son for life, and then to the Eldest Issue Male of C. for life, though C. had not any Issue Male at the time of the Devise, or death of the Devisor, but before the death of C. it's good, being a Contingency that would speedily be worn out. Cotton and Heaths Case; for there may be a Possibility upon a Possibility, and a Contingency upon a Contingency, and in truth every Executory devise is so; and therefore the contrary Rule given by Lord Popham, in the Rector of Chedingtons' Case, is not Reason. These things were agreed by all. But the Point is: The Trust of a term for 200 years is limited to Henry in Tail, provided if Thomas die without Issue in the life of Henry, so that the Earldom shall descend upon Henry, then to go to Charles in Tail, and whether this be a Limitation to Charles in Tail is the Question. My Lord Chancellor conceived it a good Limitation as a springing Trust, to arise upon a Contingency, and which is not of a remote or long Consideration. As for the Legal Reasons of this Opinion, they were these: 1. Many Men have no Estates, but what consist in Leases for years. Now it would be absurd to say, That he who has no other Estate than what consists in Leases for years, should be uncapable to provide for the Contingencies of his own Family, though they are directly in his immediate prospect, he shall not make provisions for Wife and Children upon Marriage. 2. It was the Opinion of the Lord Chief Justice Pemberton, That had it been thus Penned it had been good. If Thomas die without Issue Male, living Henry, so that the Earldom descend upon Henry, than the 200 years limited to him and his Issue shall cease; but then a new Term of 200 years shall arise and be limited to the same trusties, for the benefit of Charles in Tail. Now what difference is there, why a man may not raise a new springing Trust upon the same Term, as well as a new springing Term upon the same Trust? It is true, in 6 Ed. 6. in the time of Lord Chancellor Rich all the Judges delivered their Opinion; If a Term of years be devised to one, provided if Devisee die, living I. S. then to go to I. S. is absolutely void. But in 19 Eliz. Dier fo. 277, 328. it was held by the Judges to be a good Remainder, Executory Remainder. and that was the first time that an Executory Remainder of a Term was held to be good. As for Child and bail Case, the Case is truly Reported by Crook; A Term of 70 years is devised to Dorothy for life, then to William and his Assigns all the rest of the Term, provided that if William die without Issue living at the time of his death, then to Thomas, which is in effect the present Case; but there was more in it; William had the whole Term to him and his Assigns. Dorothy was Executrix, and granted the Lease to William: And the Record goes further, After the death of Thomas without Issue, it was to go the Daughter, which was a plain affectation of a Perpetuity; but however this Case is contradicted by other Resolutions. Cotton and Heath before cited, and Wood and Sanders in this Court, which was this, a long Lease is limited and declared thus: To the Father for 60 years, if he lived so long, then to the Mother for 60 years if she lived so long, then to John and his Executors if he survived his Father and Mother, and if he died in their life time, having Issue, then to his Issue; but if he die without Issue, living the Father or Mother, than the Remainder to Edward in Tail; John died without Issue in the life time of the Father and Mother: It was Resolved by Lord Keeper Bridgman, assisted by two Judges. That the Remainder to Edward was good: The whole Term had vested in John, if he had survived; yet the Contingency never happening, and so wearing out in the compass of two Lives in being, the Remainder over to Edward might well be limited upon it. Object. Where will you stop, if not at Child and bail Case? Resp. Every where, where there is apparent danger of a Perpetuity; but so is not this Case. The Equitable Reasons were: 1. It was Prudence in the Earl to take care, that when the Honour descended upon Henry, a little better support should be given to Charles, who was the next Man, and trod upon the Heels of the Inheritance. 2. It was very probable and almost morally certain that Thomas would die without Issue, he being not of a good state of Body or Mind, and while such they were circumspect that he should not Marry. 3. It's an hard thing for a Son to tell his Father, That the provision he has made for his younger Brothers is void in Law: But it is much harder for him to tell him so in Chancery, for there no Conveyance is ever to be set aside, where it can be supported by a reasonable Construction. The Law doth in many Cases allow of a future Contingent Estate to be Limited, where it will not allow a present Remainder to be Limited: A man hath an Estate Limited to him his Heirs and Assigns (this is a Fee-simple;) but if he die without Issue, living I.S. or in such a short time to I. D. this is good. Though it be impossible to limit a Remainder of a Fee upon a Fee, yet it's not impossible to limit a Contingent Fee upon a Fee. Pell and Brownes Case, If a Lease comes to be limited in Tail, the Law allows not a present Remainder to be limited thereupon; yet it will allow a future Estate arising upon a Contingency only, and that to wear out in a short time. The Limitation in Wood and Sanders Case is after an express Entail, and yet Adjudged good, because it was a Remainder upon a Contingency that was to happen during two Lives, which was but a short Contingency, and the Law might very well expect the happening of it: But our Case is stronger, because it is only during one life. It was decreed the Plaintiff should enjoy this Barony for the residue of the Term, and the Defendants to make him a Conveyance accordingly, and to account with the Plaintiff for the Profits received since the death of Duke Thomas, and which they or any of them might have received without wilful default. The Duke of Norfolk exhibited a Bill of Review in Chancery, to which Charles Howard put in a Plea and Demurrer, which was Argued before Lord Keeper North, and he overruled the said Plea and Demurrer, and Reversed the Lord Chancellor's Decree. But afterwards this Decree was Reversed in Parliament, and the first Decree affirmed in behalf of Charles Howard. Turner contra Crane, 34 Car. 2. fo. 668. THat Robert newel and his Wife, Copyhold Mortgage. for 220 l. paid by the Plaintiffs Wife Susan, than a Widow, did Surrender the Copyhold Premises to the use of the said Susan and her Heirs, on condition that the said Robert newel and his Wife's paying to the said Susan, her Executors and Assigns 230 l. in March next, after, than the Mortgage to be void, and the Money not being paid, the said Susan was admitted to the premises, and afterwards Married the Plaintiff, and they received the profits of the premises; and afterwards Susan died Intestate, no ways indebted, leaving Susan her Daughter by the Plaintiff, her Heir an Infant, and the said Susan the Infant was admitted by the Plaintiff her Guardian, Admittance of Guardian. as Heir to Susan the Mother, who received the profits, and died, leaving the Defendant Jane Crane her Aunt as Heir, and she was admitted, and the Plaintiff on Susan the Daughter's death, took Administration of Susan the Mother's Estate, and claims the Mortgaged Lands, insisting, That though the Defendant Jane was Heir to Susan the Daughter, who was Heir to Susan the Mother, yet the premises being a Mortgage, belonged to him as Administrator to Susan the Mother. This Court would consider of this Case, and of Cases of Mortgages in Fee, where no Covenant is made for the payment of the Mortgage-Mony to the Executor or Administrator, and no debts owing by the Mortgagee, whether the Heir or Administrator of the Mortgagee shall have the Lands. This Court upon reading Precedents declared, The Heir of the Mortgagee in Fee (there being no debts owing) shall have the Redemption Money, and I not the Administrator. That he was fully satisfied that the Plaintiff as Administrator to the said Susan ought not to have the mortgaged premises from the Defendant Jane Crane, the Heir of the Heir of the said Mortgagee, but the said Jane ought to enjoy the same, and dismissed the Plaintiffs Bill. Dowse contra percival, 34 Car. 2. fo. 186. THe Plaintiffs Father, John Dowse, Lessee purchased the Inheritance in trusties Names, and dies Intestate: This Lease shall attend the Inheritance. took a Lease of the City, and afterwards purchased the Inheritance in trusties Names, for him and his Heirs, and the said Dowse died Intestate, the Defendant his Wife (as Administratrix) claims this Lease to belong to his personal Estate. This Court decreed it, to attend the Inheritance. Magistr', etc. Vniversit' Colleg ' in Oxon ' contra Foxcroft, 34 Car. 2. fo. 522. THe Bill is to Revive a former Decree, made against the Defendants Father, whereby the said Defendants Father was decreed to pay the Plaintiff 2000 l. and Interest. To which the Defendant demurs, A Decree and Sequestration against one, who dies, this shall not be Revived against his Heir or Real Estate, though it were for Money payable on the behalf of a Charity. for that the said Defendants Father against whom the said Decree and a Sequestration is had is dead, whereupon the Sequestration being granted purely for his Contempt of a Decree, which was for a personal duty only, and determined by his death, and therefore ought not to be Revived against the Defendant his Heirs, nor is his Real Estate in the hands of his Heir chargeable with the Personal duty, or Decree for a Personal duty. The Plaintiff insisted, This is a Case of Extremity, being on the behalf of a Charity, and the Defendant endeavours to deprive the Plaintiff of 2000 l. given for the purchasing a 100 l. per Annum, for Maintenance of two Fellows of a College. His Lordship declared, That the Decree being for a personal Duty, ought not to be revived against the Defendant as Heir, and allowed the Demurrer, and dismissed the Bill. Domina Dacres contra Chute, 34 Car. 2. fo. 861. THe matter controverted is touching Costs, Costs. the Plaintiff had a Decree against the Defendants Father deceased, and that the Plaintiff should have her Costs of that Suit, and the said Cost being taxed, they became part of that Decree, as much as if they had been named in the Decree in certainty. The Defendant insisted, That upon the first hearing Costs were only reserved till after Report, and upon hearing Exceptions to that Report, nothing was said touching Costs, but in the Order of confirming the last Report in that Cause, Costs are directed to be taxed, but the Defendants Father by name was to pay them, and by the Decree as it is enrolled, the Reversion of the Lands in question, was directed to stand charged with the Debts and Damages, but not with the Costs, and the Costs were given as a personal thing, and died with the Defendants said Father, and cannot affect the said Estate which was the Grandfathers, and the Plaintiff could not have revived her Suit for the Costs alone. This Court declared, A Suit cannot be revived for Costs alone where no duty is decreed. That tho' it may be true, that a Suit cannot be revived for Costs alone, where there is no duty decreed, because it is the Latches of the party, not to get them taxed where there is nothing else in demand: Yet when there is a duty decreed, and Costs awarded by the same Decree, which is signed and enrolled in the life of the party, it would be unreasonable, that by the Defendants delaying the Account the Costs should be lost, which could not properly be taxed till the final Decree, and when the charge of Suit is at an end: And this Court further declared, That the Costs when taxed may be recovered out of the Assets, as in the Case of Heirs and Executors at the Common Law, and this Court looks upon the wording of the Decree in that manner, to proceed from the difference between the Debt and Costs, the Debt not being chargeable upon the person at all, and the Costs chargeable upon the person as well as the Assets, and it were unjust to expound the Decree, by charging the person to discharge the Assets from payment of Costs, to which they are naturally chargeable, unless they have been paid by the Defendants Father. This Court therefore thought fit, Costs from their time of being Taxed to carry Interest, and shall charge and be recovered out of the Assets. that the Costs from the time that they were taxed should carry Interest, and charge the Assets by descent, and ordered the Account to be taken by the Master accordingly. Windham contra Jennings, 34 Car. 2. fo. 776. THat Sir George Crook Mortgaged Lands in 28 Car. 2. Mortgage for 2000 l. before which time the Mortgagor borrowed of him that was after the Mortgagee 300 l. which was agreed to be secured by the said Mortgage, both sums must be paid upon the Redemption. to the Defendant for 2000 l. and died, and the Plaintiff being his Heir prays a Redemption. But the Defendant insists, That the said Sir George Crook before the Mortgage borrowed of the Defendant 300 l. on Bond, (viz.) in 1672, and the Defendant insists, it was agreed to be secured also by the said Mortgage, but the Plaintiff is not willing to pay that; only will redeem the Mortgage. This Court decreed, the Plaintiff to pay to the Defendant both the 2000 l. and the 300 l. and then the Plaintiff to redeem. noel & al' contra Robinson, 34 Car. 2. fo. 168 & 178. THe Case being (viz.) That Sir Martin Noel deceased Father of the Plaintiff, Bill to answer to Devisees. being seized, in Fee of a moiety of a Plantation in the Barbados, called Horn hall with the appurtenances, and being legally entitled by the Laws and Customs of the said Island, to dispose thereof, by his Will in writing, devised the same unto the Plaintiffs Nathaniel, Grace, Elizabeth and one Theodorus noel, and Sir Martin by his Will appointed the Defendant Robinson to supply the said Plantation with all necessaries during the Minorities of the Plaintiffs, and to receive the profits in trust for the Plaintiffs, and for his care therein gives him an allowance and made his Son Martin noel and Theodorus noel deceased, and the Defendant Robinson his Executors, and the Defendant Robinson proved the Will, and took on him the Execution thereof, and management of the Plantation, and assented to the Legacy and Bequests of the Plaintiffs, and in performance of such Trust and Assent leased the premises to one John Worsam for 20 years, at 20000 l. weight of Sugars Rend per Annum, in the Trust for the Plaintiffs the Devisees, and since have conveyed away the same to one Falkner and others to defeat the Plaintiffs, so the Bill is to call the Defendant Robinson and Falkner to Account for the profits of the premises, and to convey their Interest to the Plaintiffs. The Defendants insists, That by the Custom of the said Island of Barbados, where the said premises are, the said Sir Martin had not power to make such Devise of the premises to the Plaintiffs, he being then much indebted to several persons, and the said Defendant Robinson had paid several debts for him; and insists, Thar the said Lease made to Worsam, was done without due consideration, and not with any intent thereby to assent to the Legacy to the Plaintiffs, and deprive the Creditors of their just debts, or in any sort to exempt the Estate there from, nor had no reason so to do, he being bound with the Testator, in several Securities to several persons in several sums of Money, and employed all the profits he received, as also 500 and odd pounds for Worsams' Lease, for the payment of Sir Martin's debts, amounting to 30000 l. and so the Testators Estate ought to pay debts, and not to be subject to his Will, and the said Defendant believing the premises to be as Lands of Inheritance, made the said Lease to Worsam a Creditor of Sir martin's, but is since advised it is a Chattel, and liable to the payment of his debts. But the Plaintiffs insisted, That by the said Lease to Worsam, and reservation of the Rent thereon to himself in Trust for the Plaintiffs, he had placed the Estate in such manner, that the same could never by any subsequent Act come into the Administration of the Estate of Sir Martin, What Act amounts to an Assent of a Legacy. and that every Act of the Defendant Robinson was a plain Assent to the Legacy to the Plaintiffs, and it is plain, the premises were devisable, and so the Plaintiffs Title plain and undoubted, and the Plaintiffs ought to have a Decree against the Defendant, to Account to them for the said Estate, and aught to have the benefit of the said Lease. The Defendant further insisted, That by such imprudent Act as aforesaid, he ought not to be Devested of the Estate, but it ought to go to pay Sir Martin's debts. This Court declared, That by the said Clause in the Lease to Worsam, the Defendant had Assented to the Plaintiffs Legacies, given them by the Will of their Father, and that the Devise by the Will was a good Devise, Devise of a Plantation in Barbados. and that the premises did well pass thereby; and that the said Act of the Defendant Robinson being voluntary, had put the Estate out of the power of the Creditors of Sir Martin, or out of the power of any Administrator, de bonis non of him, Decree the Plaintiffs to have the benefit, and the Defendants to assign. and decreed the Plaintiffs to have the benefit of the premises, and of the Lease to Worsam, and the Defendants to Assign their Interests to the Plaintiffs accordingly. But the said Defendant desiring a re-hearing of the Cause, which was on the 20th of Nou. 1682. when the Defendant insisted, That the said Lease could not be an Assent, for that the Defendant Robinson then claimed the premises, not as Executor, or otherwise than only as Trustee for the Devisees, whose Inheritance he then took the same to be, and not as personal Estate, upon which and other grounds the Defendant insists, the said Rent and Reversion of the premises, expectant on the Determination of the Lease was, and aught to be of the Testators personal Estate, and to go in the ordinary course of Administration, and to an Administrator de bonis non, and be liable to debts. His Lordship notwithstanding what was now urged by the Defendant declared, Decree by Finch. he saw no cause to alter the former Decree, but confirmed the same. This Decree reversed by the Lord Keeper North, The Decree reversed by North. and in 1683, fo. 168. he heard this Cause upon the whole merits, and ordered an Account. And in 1686, Finch, his Decree confined by Jefferys. The Lord Chancellor Jefferys reheard this Cause upon the Merits, and confirmed my Lord Chancellor Finch's Decree, and discharged my Lord North's Decree. Benson contra Bellasis, 34 Car. 2. fo. 848. THis Cause having received a hearing before the Lord Chancellor Nottingham, 11 July. 33 Car. 2. who made a Decree for excluding the Defendant Dame Dorothy, Administratrix of Robert Benson the Plaintiffs Father, from having any part of his personal Estate, and the said Cause being heard 10 July, 35 Car. 2. before the Lord Keeper North, who decreed the said Defendant Dame Dorothy, to retain to her own use one third part of the said personal Estate of the said Robert Benson, and the said Cause being again reheard this day by the Lord Chancellor Jefferys. The Case being, that the said Robert Benson on his Marriage with the Defendant Dame Dorothy, for the settling of a Jointure on the said Dorothy, in full of all Jointures, Dowers and Thirds, which she might claim out of his real and personal Estate, conveyed Lands to the use of himself for life, and after to the said Dorothy for life in full of all Joynturs, etc. as is aforesaid, with this Proviso, Settlement on Marriage That if the said Dorothy, should after the death of the said Robert Benson, have or claim to have, or should recover any other part of the Lands or Tenements, or any part of the personal Estate of the said Robert, by the Custom of the Province of York, or by any other means whatever, other than what the said Robert Benson should give, Bequeath or Settle upon or to her; That then the Feoffees therein named should be seized, of all the premises settled in use upon the said Dorothy, to the use of Sir Henry Thompson and Mr. Grayham, their Executors, Administrators and Assigns for 60 years, to commence from the death of the said Robert, if the said Dorothy should so long live; Upon Special Trust, that the said Thomson and Grayham should receive the profits of the premises limited in the Jointure, and they should dispose thereof to such persons and their uses, as should be damnified by the said Dorothys' perception, of the profits of any other Lands of the said Robert, or the taking or recovery of any part of the personal Estate, other than what should be given or bequeathed until the respective values of the Profits, or values of such Personal Estate should be fully satisfied, and the residue of the said Profits to remain to the said Dorothy. That the said Robert dying intestate, and the said Dorothy Administering at York, and in the Prerogative Court of Canterbury, as Guardian to the Plaintiff Robert, possessed the Real and Personal Estate, prerends a Right to some part of the Personal Estate by the said Administration, notwithstanding the said Marriage agreement. The Lord Chancellor Nottingham declared, the said Dorothy was bound by the said Marriage Agreement, Marriage Agreement provided, if the Wise claim any of the personal Estate by the Custom of the Province of York, than the Estate to other use. Decreed, she is bound by the said Settlement, and ought not to claim any part of the personal Estate; by Finch. and the Administration ought to have been granted to her, and that however, the same ought not any ways to avail her, for that it would be contrary to the said Settlement and Agreement, and that the said Dorothy ought not to claim any part of the Real Estate, other than what was Settled on her by the said deed, or any of the Personal Estate, and decreed accordingly. But the Defendant Dorothy insisted, Reversed by North. That the Lord Keeper North had adjudged one third of the Personal Estate, to belong to the Defendant, by virtue of the said Administration, and was an accrueing Right, not barred by the Marriage Agreement. The Lord Chancellor Jefferies, Confirmed by Jeffreys. on reading the said Marriage Settlement, and the said two former Orders, declared, That the said Order for the Excluding of the said Defendant Dorothy from having any part of the Personal Estate, was a just Order, and aught to stand and be pursued and that the said Order of the Lord Keeper Norths before mentioned, aught to be set aside, and Decreed accordingly. Stapleton contra Dom. Sherwood, 34 Car. 2. fo. 732. THat Sir Philip Stapleton the Plain tiffs Father, Bill for Distribution of the personal Estate. on his Marriage with his first Wife, Settled the Manor of Warter in the County of York, whereby he made himself but Tenant for life, the Inheritance vesting in the Plaintiff his Eldest Son; and Sir Philip had Issue by his first Wife, the Plaintiff his Eldest Son, Robert his Second Son, and Mary who Married the other Plaintiff, the Lord Merrion. That Sir Philip in 1647. by Will devised to his said Son Robert, a Rend charge of 40 l. per Annum, to be issuing out of the said Manor, and afterwards the said Robert died, and the Defendant Dorothy his Relict, Administered to the said Roberts Personal Estate, so the Plaintiffs Bill is to have Distribution of his Personal Estate. The Defendant Dorothy insisted, That she as Widow of her said late Husband Robert, by the Custom of York, is Entitled to a Moiety of the said Personal Estate, and by the late Act for settling Intestates Estates, the said Defendant is Entitled to the other Moiety, and insisted, That Sir Philip having Issue by several Ventures which are yet alive, or their Representatives, they are equally entitled with the Plaintiff Stapleton. This Court declared a Distribution of the said Personal Estate, according to Law, to be made amongst the Plaintiff Stapleton, and the Child of the Lord Merrion, as also the Brothers and Sisters of the said Robert, as well as those of the half-Blood, as those of the whole Blood, and their respective Lineal Representatives, who are to be called into the account. And as to the point, whether the Lord Merrion and his Child, have the Right to his Wife's share of the Estate, a Case is to be made. That the Master to whom the account of the Intestates Personal Estate was referred, 36 Car. 2. fo. 375. hath allowed to the Defendant Dorothy the Administratrix, a Moiety of the said Estate of the said Intestates dying without Issue, and hath Distributed the other Moiety, amongst the Intestates Kindred, Brothers and Sisters. Whereas by the Custom of the Province of York, she is not only to have a clear Moiety of the Personal Estate of her said Husband so dying without Issue after Debts, etc. but by the late Statute for settling Intestates Estates, she is to have a Moiety of the other Moiety. The Plaintiff insists, That there was no Colour for the Defendant to have a Moiety of the remaining Moiety, the said Statute leaving the Custom as it was, without Addition, Diminution or Enlargement; but the Widow was to have only a Moiety, and the other Moiety to be Distributed amongst the next of Kin. This Court for the further satisfaction, The Custom of the Province of York Certified by the Archbishop. ordered the Lord Archbishop of the Province of York to testify, when a man dies Intestate within that Province, without Issue after his Debts, etc. paid, how the Residue is to be Distributed by the Custom of the Province. The Bishop certified, That in such Cases as aforesaid, the Widow of the Intestate by the Custom of the Province, had usually allotted to her, one Moiety of the clear Personal Estate, and the other Moiety hath been Distributed amongst the next of Kin to the Intestate; and that had been the constant practice of the Ecclesiastical Courts at York. The Plaintiff insisted, That the Custom of that Province is excepted out of the Act of Parliament, and if it were within the Act, it ought to have the more favourable construction on their part, because it was made in favour of them, and not of the Widow and Administratrix, who before the said Act, usually went away with the whole Estate, unless more particular instances prevented. This Court declared, The Widow by the Custom of the Province of York, shall have the Moiety, but not another Moiety by the Act of Settlement of Intestates Estates. They could not expound the Act, to give the Defendant more than a Moiety, that being the proportion allotted to her by the Custom, and also by the Act, if it had not been a Case within the Custom; which Custom is confirmed, because it appoints the same kind of Distribution with the Act, and it would be a strain to give her more than a Moiety, part by the Custom, and part by the Act, and refers to the Masters Report made in this Cause. Coventry contra Hall, 34 Car. 2. fo. 330. THat Sir Thomas Thynn, Bill for mean profits. Father both of Sir Henry Frenderick Thynn, and Sir James Thynn, conveyed on Sir Henry Frenderick, and his Heirs Males of his Body, expectant after the decease of him the said Sir Thomas, the Manor of Hempsford and other Lands, and soon after died, and the said Sir Henry Frederick possessed the said premises, but Sir James Thynn, pretending the said Conveyance was Defective, Sir Henry Frederick in Oct. 1650. obtained a decree, that the said Sir Henry Frederick, and the Heirs of his Body, should enjoy the said premises against the said Sir James Thynn and his Heirs, according to the intent of the said Settlement. That Sir James Thynn insisting, That Sir Thomas was but Tenant for life, and not Seized in Fee of the premises, having suffered Recoveries, so that the Freehold was in the said Sir James, or some other for his use, by virtue whereof, he received the profits, which Sir Henry Frederick ought to have received: That Sir Henry not being able to recover the said mean profits at Law, by reason of the defect in the said Conveyance, which is now supplied and settled by the said decree, and Act of Parliament, so that the said Sir Henry hath the right to the said profits and writings. So the Bill is to be relieved for the same, and to have an account thereof. The Defendant insisted, That there ought to be no account of the mean profits, the demand thereof being very old, and is grounded on a decree in a former Cause, whereby a defect in a Conveyance, under which the Plaintiff claims was supplied, and there is no provision in the said decree for mean profits, though the Bill originally was such as this Court might have decreed mean profits, and when the Decree was made, it was not granted nor any farther relief than only possession, and the possession hath been so unconstantly in any one person, that it is very difficult, especially after so long time against an Executor, that is no way privy to the accounts of the Testator. The Plaintiff insisted, That though the demand on the decree is Ancient, and a prosecution hath been for the same ever since, and the Right being determined, the Plaintiff ought to have an account of the mean profits, as the Consequences of that Right, though the Original Bill might pray an account, and the decree be silent as to that point. This Court declared, That considering this case, as if there were no Act of Parliament, the Plaintiff hath a right to demand an account upon an equity that ariseth on the Marriage Agreement, and Settlement made in pursuance thereof, notwithstanding the length of time, for that the Plaintiff or their Testator, could not come sooner, than when the Title was cleared; Mean profits Decreed, tho' a long time since. and the Objection raised from the shortness of the former decree, is not material to prejudice the Plaintiffs demand, for that there could not then be any decree for profits, the said Sir James pretending Title as Tenant in Tail, Account for the mean profits, from the time the right accrued. and that Sir Thomas was but Tenant for life, so now the Right being cleared, the Plaintiff ought to have an account of the mean profits, from the time the Right accrued, and decreed accordingly. The Defendant Appealing from the said Decree made by the Lord Chancellor Finch, to the Lord Keeper North, the Case was heard ab integro, and the Lord Keeper on hearing the decree in 1650. and the decree of the Lord Finch read, declared, that there was nothing in the case, but the loss of time, and though the Decree in 1650. The mean profits, tho' omitted in a former decree, decreed now. was silent as to the mean profits, yet the same aught to be no Objection to the Right, and though it was omitted by the Decree in 1650. yet it ought in Justice to have been decreed for the mean profits, as well as for the right of the Title, it being an accessary to the decree, and it ought to be judged nunc pro tunc, there being no Bar against it, and confirmed the Decree made by the Lord Finch. Girling contra Dom' Lowther & al', 34 Car. 2. fo. 148. THat Sir Thomas Leigh deceased, late Father of the Defendants John Thomas and Woolley Leigh, became indebted to Edmond Girling deceased, in several Sums of money by Bonds, and the said Girling became bound for the said Sir Thomas, for several great Sums of money, against which Securities Sir Thomas gave the said Girling Counterbonds; and in Hillary Term 28 Car. 2. Sir Thomas gave a Judgement of 1000 l. to the said Girling, for the payment of 530 l. and in Aug. 1669. Sir Thomas made his last Will in writing, and thereby devised to the Defendants Sir John Lowther, John Currants and Edward Badby Executors of his said Will, several Lands Lands and Tenements for the payment of his debts, and to be by them sold for that purpose: That the Swan Inn in St. Martin's Lane being sold, there ariseth a Question touching the Money raised by such Sale, whether it were well applied or not. The Case being (viz.) That Sir Thomas Leigh, upon his Marriage with Hannah Relfe, Daughter of Anthony Relfe, whilst he was under Age by Articles previous to the said Marriage with the said Hannah agreed to settle on himself, and the said Hanuah his intended Wife, and such as they should have between them Lands of 700 l. and in Consideration thereof, the said Anthony Relfe was to settle, and did settle upon the said Thomas and his Heirs Lands of 200 l. per Annum, whereupon Sir Thomas Leigh, July 1661. makes a Settlement upon himself, and the said Hannah his intended Wife, and their first, second and other Sons in Tail, his Manor of Addington, and other Lands in Addington, and several Lands in Com' Surrey and Keut: That afterwards in May 1665. Sir Thomas Leigh mortgaged to Mr. Perk, for 2000 l. several Lands in Middlesex and Norfolk, and afterwards in December 1665. those Lands and the moiety of the Swan Inn in St. Martin's and the Reversion thereof were granted to trusties upon several Trusts, which by Deed 15 June 1668. appears to be performed and satisfied and thereupon on the same 15 June 1668. the said premises were mortgaged to Sir John Lowther for 2500 l. which 2500 l. was raised and paid to Sir John Lowther out of the profits and by sale of the said Swan Inn, which was formerly by voluntary Conveyance dated and settled by the said Sir Thomas Leigh upon the two Defendants Thomas and Woolley Leigh for Natural love and affection: Voluntary Settlement. That Sir John Lowther in April 1679. assigned the said Mortgage by conveying to one Burton and others, the Manor of Thorpe in Surrey and Shoelands, and other premises in Trust for the payment of such of the debts of Sir Thomas Leigh as should any ways encumber, or disturb the Purchaser of the Swan Inn, which said Lands are sufficient to pay the Plaintiffs debts, and the Testators Engagement, being 1331 l. which debt is to be paid the Plaintiff by Decree of this Court. The Defendants the Leighs insist, That the Money raised by the sale of the Swan Inn, although paid to redeem the other Estate in mortgage to Sir John Lowther, ought not to be applied, so that the Land ought to be discharged of the Mortgage-mony, or of what was paid to redeem the same, but the said Lands ought still to be a Security for the said Money to the use of the younger Children, for whose benefit the said Swan Inn was settled; and although the said Settlement was voluntary, yet the same being a provision for younger Children ought not to be adjudged fraudulent as to a subsequent Judgement (which the Paintiffs is) or however not as to a subsequent voluntary Devise of their Father, under which only the Creditors by Bond come in, and therefore as to them the said mortgaged Lands ought to be charged with the said Money, raised by the sale of the said Swan Inn, with Interest, since it was paid to redeem the said Estate, precedent to any benefit any Creditor by Bond can have out of the said Lands. This Court declared, Voluntary Conveyance (though a provision for younger Children) not to prevent satisfaction of subsequent Judgements. That the said voluntary Conveyance ought not to stand in the way to prevent satisfaction of a subsequent Judgement for good Considerations, and that the moneys due on the Plaintiffs Judgement, and the moneys raised by sale of the Swan Inn, was well applied to discharge the Mortgage on the other Estate whereby the money due on the Judgement with Interest may be the more speedily raised by sale thereof, and the money raised by sale of the said Inn after the Judgement satisfied with Interest ought to stand secured for the benefit of the younger Children, Money applied to take off Mortgages, satisfy Judgements, and after to pay Bond-Creditors. and be raised by sale of the said Estate, and by Rents and Profits in the mean time precedent to the other Creditors not on Judgement, and after the said Judgement and provision for the younger Children satisfied, the residue to be applied to the other Creditors, and decreed accordingly. Comes Arglas contra Henry Muschamp, 35 Car. 2. fo. 524. THat Thomas, Relief against overreaching Bargains. first Earl of Arglas, the now Plaintiffs Father, and William Earl of Arglas the Plaintiffs Brother, were seized in Fee of the premises in question, and made divers Settlements thereof, by which in case of failure of Issue Male of the said William, the said Estate should come to the Plaintiff and the Heirs Males of his Body: That Thomas the Plaintiffs Father died, leaving Issue Male only Earl William and the Plaintiff, and Earl William is dead leaving Issue Male only the last Earl Thomas the Plaintiffs Nephew; and the said last Earl Thomas upon his marriage with his now Wife levied a Fine, and suffered a Recovery, but not with intent to defeat the Remainder to the Plaintiff, but only to settle a Jointure, and several Deeds were executed leading the Uses, by which there was a Remainder in Fee reserved for the Plaintiff, for want of Issue Male of the last Earl Thomas; and the said last Earl Thomas, to the intent the Reversion of the premises should come to the Plaintiff and the Heirs Males of his Body, did for 300 l. convey the said premises to the use of the last Earl Thomas for life, and in case of failure of Issue male of his Body to the Plaintiff and the Heirs males of his Body, with Remainders over: That Earl Thomas, the Plaintiffs Nephew, coming over into England, and getting acquaintance with the Defendant Muschampe, and being in want of Money the said Muschampe lent him 100 l. and for Security he pressed the said Earl to make it out of his Estate in Ireland, and the said Defendant having the drawing the Security, brought the said Earl some Writings ready to be executed, of which the said Earl had no Copies or Counterparts, neither did he give time to peruse the same, and the said Earl relying on the Defendants Integrity, Sealed the same, believing the said Security to be void on payment of the said 100 l. as the Defendant affirmed it should; but the said Deeds being made to settle on the Defendant a Rend charge of 300 l. per Ann. to his own use, which being done by Fraud, there ought to arise a Trust which ought to go and be enjoyed by the Plaintiff according to the aforesaid Settlement made on the Plaintiff, and the Plaintiff is willing to pay the Defendant whatsoever Sum of Money he hath really lent or paid to the said last Earl Thomas with Interest. The Defendant insists, That the said last Earl Thomas by Deed in 1675. for 300 l. per Annum, and other Considerations, granted to the Defendant a Rent-charge of 300 l. per Annum, without any deduction to be issuing out of the Estate in Ireland, to be held by the Defendant and his Heirs, and to commence at such of the Feasts as should first happen after the death of the said last Earl of Arglas, without Issue male, with power to distrain, and a Proviso, That if the said last Earl should during his life time have, or at his death leave Issue male which do attain to the Age of 21, than the said Grant to be void, and of the said 300 l. there was at one entire payment 180 l. paid to the said last Earl, and the Defendant hath a Receipt for the said 300 l. and says, the Deed was fairly executed and made without any fraud or practice; and insists, That the said Grant of a Rent-charge was on a Contingency so uncertain, that 300 l. was a sufficient Consideration for the said Grant, which 300 l. was paid thus (viz.) 100 l. after the Agreement, and before the Conveyance of the said Rend charge, and 184 l. to the said Earl the same day the Conveyance was executed, and the said Money was paid as Purchase-mony, and not as Money lent, and the said Earl approved of the said Conveyance, though he had no Copy, and after the said Defendants purchase of the Rent-charge; and since the exhibiting of this Bill, the said Earl Thomas hath given the Defendant a general Release under Hand and Seal, wherein is declared, that the Bill is exhibited against the Defendant contrary to the said Earls direction, and disallowed all further proceed thereon against the Defendant. This Court upon reading the said deeds, and several precedents in this Court, as well in the Reigns of Queen Elizabeth, King James, King Charles the first, as in his now Majesty's Reign, where relief hath been given against Over reaching Bargains and Contracts made by young Heirs, and taking into consideration the Circumstances of this Case, it appeared to him, That Thomas Earl of Arglas, at the time of this bargain, was very young, and of an easy nature, and had forsaken his Wife and Friends, and came to London, where he lived in Riot and Debauchery, and for the supply of his Expenses therein, was this bargain made, wherein it doth not appear, he took the Advice of any Friends or Council, but relied wholly on the Defendant: That the consideration of this grant is very small, being but one years' purchase for a Rent-charge in Fee-simple, which is now happened in possession, and the over-value be it never so great, is not of itself sufficient ground to set aside a bargain, Fraud or not. or whereupon this Court can presume fraud: Yet it is a great evidence of fraud, where there are other Circumstances concurring, as there is in this Case. And whereas the Defendant insisted, that the Contingency of the death of a young Man without Issue Male was so great, that it cannot be esteemed an over-value, such a Reversion not being worth one years' purchase. His Lordship declared, He looked upon it as an Artifice of the Defendant, for it was easy to persuade the Earl Thomas, who could not judge of his own defects, that the Defendant had the worst of the Bargain. Whereas it is not likely the Defendant would have made it, but that he thought Earl Thomas would in a short time destroy himself by his Vicious and Debauched course of life, and his Lordship was of Opinion, the Defendant had Circumvented the Earl Thomas in this bargain, and concluded upon the whole matter, that the Plaintiff ought to be relieved in this Court, A proper Bargain (tho' overreaching) especially upon a Contingency relieveable, but not to the damage of the bargaince. and the Release made by Earl Tho. without any consent after the Settlement made upon the Plaintiff, aught to be no Bar thereunto, but in as much as his Lordship found by the precedents, that in such cases, This Court doth not turn any loss upon the Defendant, but only correct the Excess and Extravagancy of such bargain; Therefore his Lordship thought fit, the 300 l. should be restored to the Defendant, with consideration for the same, at 6 l. per Cent. and on payment thereof, the Defendant to convey the said Rent-charge of 300 l. per Annum, and all his Title, Interest and Demand in the premises to the Plaintiff, and granted a perpetual Injunction, not only to stay all proceed at Law, but for quieting the Plaintiff, his Heirs, etc. in the possession of the premises. Langton contra North & al', 35 Car. 2. fo. 95. THat Sir Robert Gouning Deceased, Marriage Settlement. being Seized of Lands, and a great Personal Estate, upon a Marriage to be had between him and the Defendant Dame Ann, Daughter of Sir Robert Cann, Articles of Agreement were executed, and in pursuance of the Articles, a Settlement of part of the premises was made upon the Defendant Dame Ann, for her Jointure, and in the said Settlement, there was a Covenant on the said Sir Robert Gouning part, to lay out as much Money in the Purchase of Lands, as would amount to 110 l. per Annum, to be settled on the said Dame Ann for her life, remainder to the Heirs of the said Sir Robert Gouning, which was intended to be an Enlargement of his Real Estate, and to be for the benefit of his Heir, but the said Defendant Dame Ann refuseth since the death of Sir Robert Gouning her Husband, to whom she is Administratrix, to execute the said Covenant in Specie, by Purchasing of Lands of 110 l. per Annum, to be settled according to the Covenant as aforesaid, and which ought to come to the Plaintiffs as Coheirs of the said Sir Robert Gouning. The Defendants insisting, Covenant to settle Lands of 120 l per Annum to the said Remainder to the Heirs of the Husband, Wife Administratrix refuseth the Bill was dismissed. that the said Covenant was made in favour of the said Dame Ann only, and not for the Plaintiffs the Heirs benefit, and the Defendant also as Administratrix, claims Title to the Mortgaged Lands at Siston, insisting, that the same are a Chattel Lease for a long Term of years, which by Assignment, came to Mary Gouning, Sister of the said Sir Robert, and that she afterwards procured a Release of the Equity of Redemption for 950 l. including therein the Money due upon the said Mortgage, and that she purchased the Reversion in Fee thereof, in the name of her Brother Sir Robert, which she did on purpose to keep the Lease distinct and separate, and that it ought not to go to the Heir, but to the Administratrix. But the Plaintiff insists, That the said Lease ought to attend the Inheritance, which Mary Gouning, to whom the Plaintiffs are Heirs, bought in for that purpose, in the name of the said Sir Robert her Brother, and that the same aught to come to the Plaintiffs, as other the Real Estate of the said Sir Roberts. This Court declared, Lease to attend the Inheritance. as to the Lands at Siston, it was an Inheritance, and aught to go to the Heirs at Law, and decreed accordingly. And as touching the Covenant for Purchasing Lands of 110 l. per Annum, this Court dismissed the Bill. Eyre contra Hastings, 35 Car. 2. fo. 590. THat Henry Eyre deceased, Relief upon a Mortgage. the Plaintiffs Brother, being seized of Lands, 22 Car. 2. Mortgaged the same for 200 l. to Giles Eyre the Plaintiffs Son, and the said Henry Eyre, Covenanted to pay the Mortgage money, and gave Bond for performance of the Covenants, and the said Henry dying without Issue, and Intestate the premises descended on the Plaintiff as Brother and Heir, and Administration was granted to Dorothy his Relict, who paid the Mortgage money and Interest then due to the said Giles Eyre, the Mortgagee in relief of the Plaintiff, who ought to enjoy the premises discharged of the Mortgage money, and the said Dorothy made her Will, and the Defendant Ralph Hastings Senior her Executor, hath got the Mortgaged premises Assigned to him, and insists, He ought to hold the same till the 200 l. and interest be paid him by the Plaintiff. That the Defendant Ralph Junior, an Infant, claims the premises by the Will of the said Dorothy, who devised the same to him. To be relieved against them, and the Plaintiff to have the Inheritance of the premises, discharged from the payment of the Mortgage money and Interest, and the Bond delivered up, is the Bill. The Defendant Hastings Senior insists, Whether Mortgage Money be paid by the Administrator, in relief of the Heir. That the said Dorothy paid the said Mortgage money and interest; but not in relief of, or for the benefit of the Plaintiff, and thereupon the premises were Assigned to the said Hastings Senior, in Trust for the said Dorothy, who had an equitable Right to all her Husband's Estate, and Dorothy devised the said premises to Hastings Junior her Godson. The Master of the Rolls decreed the Plaintiff to enjoy the premises against the Defendant. This Cause was Re-heard by the Lord Keeper, and this Defendant the Infant, insists, That he is much prejudiced by the Decree; for that thereby he is stripped of the Estate in question, devised to him by the said Dorothy's Will, without payment of the money and interest, there being no Covenant in the said Mortgage Deed, for payment of the money and interest, or any Bond; but the Plaintiffs Counsel insisted, That Dorothy paid the Mortgage money, and interest for the Plaintiffs benefit. The Defendant insisted, that Dorothy declared the Mortgage money and interest was paid in relief of the Heir at Law. This Court declared, If there be no Covenant in the Mortgage Deed for payment of the Money, the Administrator is not obliged to discharge it. That in Case there was not any Covenant in the Deed, for payment of the Mortgage money and Interest, the said Dorothy the Administratrix, was not obliged to discharge the same. Massingberd contra Ash, 35 Car. 2. fo. 466. THis Court ordered a Case to be Stated in this Cause, Executory Devises. upon the Deed (only) by way of Executory Devise, to bring the question arising into Determination, as if in a Will, and in such method as if the Trust and Limitations in the deed, had been Limited and Created by the Will; upon which Case, the Judges of the Common Pleas were to Certify their Opinions, Whether the Remainder of a Residuary Estate of the two Leases or Terms in question limited to the Plaintiff, were a good Devise or Limitation or not, and the said Judges were also to be attended with another Case made upon both Deed and Will, and they are to Certify what the Law is, in Case of Executory Devise, as also what is fit to be Decreed in Equity. The Case on the Deed only by way of Executory Devise is, (viz.) Two several Terms, one for 500 and the other for 99 years by Will, dated the 1st. of November 1679. and devised in these words, (viz.) That Sir Henry Massingberd and his Assigns, shall take the Rents, Issues and Profits, for and during the Term of his life. And that after his Decease, Elizabeth his Wife should receive the Rents, Issues and Profits during her life. And after the Decease of the said Sir Henry and Elizabeth, the Eldest Son of the said Sir Henry, begotten upon the Body of the said Elizabeth, shall take the Profits of the said Lands till Age, and then to have the whole Term to him, his Executors and Administrators. And if such Eldest Son happen to die before he comes of Age, than the second Son of their two Bodies, shall take the profits of the said premises, till he come of Age, and then to have the whole Term. And if such second Son die before he comes of Age, than the third Son to have and receive as aforesaid, and if such Son die before he likewise comes of Age, than the fourth Son to have and receive as aforesaid. And in Case of no Issue Male between Sir Henry and Elizabeth living at the time of the death of the Survivor of them, who shall live to their Age; and that there shall be one or more Daughter or Daughters of the said Sir Henry and Elizabeth, that then the said Daughter or Daughters, their Executors and Administrators, to have and take their several equal shares and proportions of the said Rents, Issues and Profits, for and during the said Terms. Unless William Massingberd the new Plaintiff, should within six Months after the death of the Survivor of them the said Sir Henry and Elizabeth, pay such Daughter or Daughters, or secure the several Sums following (viz.) if but one Daughter 1000 l. and if more, then to every one of the rest 500 l. a piece, and after the same paid or secured, in case there shall be no such Son or Daughter living at the time of the death of the Survivor, of the said Sir Henry and Elizabeth, or which should live to attain his or her Age, than the Residue of the said Terms, to go and to be to Sir William Massingberd the now Plaintiff, his Executor and Administrators. Sir Henry Massingberd dies in Sept. 1680. leaving his Wife Elizabeth Ensient of a Son after born and named Henry, who died within six Weeks after. Sir Henry and Elizabeth had no other Issue, which Elizabeth is now the Defendant. Quere, Who is eldest Son of Sir Henry. Whether the said Devise to William Massingberd, the now Plaintiff be good. The Case upon both Deed and Will. That Sir Henry Massingberd being possed of two several Terms, Deed of Trust and Will. one for 500 and the other for 99 years by the Indenture, 2 Nou. 1679, made an Assignment thereof to trusties upon Trust. To permit and suffer him the said Sir Henry and his Assigns, to receive the rent and profits during his life, and after his death to permit the Defendant Elizabeth, then Elizabeth Rayner his intended Wife to receive the Rents and profits during her life, then upon Trust to assign the residue of the said Terms to such person or persons, and for such Estates and Terms, and in such manner as the said Sir Henry should by Will, in writing nominate, limit and appoint, give, devise or dispose thereof, or any part thereof, and in case the said Sir Henry should die Intestate, or should not by his Will, nominate, limit, appoint, give, devise, or dispose of the same and every part thereof; that then the trusties should permit the eldest Son of the Body of the said Sir Henry, on the Body of the said Elizabeth, to receive the Rents, Issues and profits of the premises undisposed of by the Will of the said Sir Henry, till he should attain his Age, and should then assign to him, his Executors and Administrators, the residue of the said Terms; and in case the eldest Son should die before Age, than the trusties should permit the second Son to receive the Rents and profits, with the like Trust to Assign to him at his Age, and so to the 3d and 4th Son in like manner. And in case of no Issue male between them, at the time of the death of the Survivor of them, the said Sir Henry and Elizabeth, which should live to attain their respective Ages, and that there should be one or more Daughter or Daughters between them, that then the trusties should permit the said Daughter and Daughters, her and their Executor and Administrators, to take their several equal shares, and proportions of the said Rents, Issues and profits, not devised or disposed of the Will of the said Sir Henry, for and during the said Terms, unless William Massingberd the now Plaintiff, the eldest Son and Heir of the said Sir Henry by a former Venture, should within six Months after the death of the Survivor of them, the said Henry and Elizabeth pay unto such Daughter or Daughters, or secure to the good liking of the trusties, the several Portions therein mentioned for the said Daughter or Daughters, and after the said Portions paid or secured; or in case there should be neither Son nor Daughter living, at the time of the death of the Survivor of them, the said Sir Henry and Elizabeth, or that should live to their respective Age, that then the trusties should assign the residue of the said Terms, to the said William Massingberd, his Executors and Administrators. Then there is a power of Revocation in the said Sir Henry by Deed or Will, to revoke and make void this present Deed, and the Estate, and Estates, Trust and Trusts of the premises, or any part thereof. After this, Sir Henry made his Will in writing, and the Defendant Elizabeth his Lady Executrix, Residuary Legatee. and Residuary Legatee, and devised in these words, (viz.) I do hereby give unto her all my Estate, which I have by Deed settled upon her, according to the true meaning and intent of the said Settlement: And also I give her all those other Lands hereby, hereafter Settled upon her, according to my true intent of my Settlement thereof for her life, or on my Issue by her; And I do also give her all my Estate, concerning my interest in the College Leases from John Rutter of Canterbury, and also all my Goods and Chattels, not hereby otherwise disposed of, I will that all the Coppyholds any ways appertaining to Paston, be taken to the use of my Ececutrix, and also the Bishop's Lease when need is, that it be renewed also to her use, and also the Lease for 500 years of Paston all at her charge, according to the true intent of my Settlements upon her, which I hope my Son William will endeavour, as before the Almightly, to make good unto her and hers; and if either I have no Issue by her, or that they or their Issue all die, so that the succession be expired; Then after my Wife's decease, I hereby give (upon my Sons wilful neglect or refusal of his duty herein, and not otherwise;) all my said Lands not settled on him by his Marriage; to all the Daughters of my Daughters Sanderson and Stoughton, to be divided among them. Yet always provided, that if my said Son neither neglect, nor refuse any reasonable duty herein; Then my Will is, that after my Wife's decease, and that all her Issue by me be either dead, or have their Portions paid them as is provided, That then all my said Lands settled on her for life, whether Copy hold, Lease hold or Freehold, with all the rest unsettled shall descend, and be to him and his Heirs for ever. Sir Henry Massingberd left no Issue living by that Wife, but left his said Wife Ensient of a Son born alive, and named Henry, but he died about six Weeks after, to whom the Lady is Administratrix. The Judge's Opinion upon both these Cases. WE have heard the Case of Massingberd and Ash, Remainders of a Term successively in a Deed of Trust, being limited and confined to fall within 21 years are good, and no Perpetuities. referred to us, Argued by Council on both sides, both upon the Deed of Trust and upon the Will, and are all of Opinion, That the whole weight of the Case rests upon the Deed of Trust, and that the Will, though it have some Clauses in it, which if they were substantive of themselves would alter the case; yet as it is penned, and the Clauses all bound up with relation to the Deed of Trust it does not: And we are likewise of Opinion, That all the Remainders and Contingencies in the Deed of Trust, being limited and confined to fall within the compass of 21 years are good, and that therefore the remainder of the Term ought to be decreed to the Plaintiff Sir William Massingberd. Febr. 17. 1684. Thomas Jones. Creswell Levings. J. Charlton. T. Street. The Lord Keeper declared himself of the same Opinion with the Judges, That the Remainder of the said Terms after the death of the said Dame Elizabeth were good Remainders in Law, and that the Plaintiff Sir William ought to enjoy the premises for the remainder of the said Terms accordingly, and decreed the same. Nodes contra Battle, 35 Car. 2. fo. 106. THe Bill is, That the Defendant may redeem, or be fore closed, and the Defendant being served with a Subpoena refuseth to appear, and sits out all process of Contempt to a Sergeant at Arms returned, and cannot be apprehended. The Plaintiff prays, the Bill may be taken pro Confesso. This Court declared, In regard the Defendant hath not appeared, The Bill not to be taken pro Confesso, if the Defendant hath not appeared, but a Sequestration shall issue out against him. this Court could not decree the Bill pro Confesso, but ordered a Sequestration against his real and personal Estate, until he cleared his Contempt. Moor contra Hart, 35 Car. 2. fo. 60. THat a Treaty of Marriage was had between the Plaintiff and Ann his Wife, Marriage Agreement. the Defendants Daughter, who promised to give with her 4000 l. but when the Defendant perceived them to be mutually engaged, began to recede from his Promise, which the Plaintiff finding, a Letter was wrote to the Defendant by a Friend of the Plaintiffs, desiring him to be plain, and ascertain what Portion he would give the Plaintiff with his Daughter, and then the Defendant agreed to give 1500 l. down, and 500 l. more at his death, if she should have Issue, and both Sums to be charged on his Estate at Creaton and Wapingham, which Agreement was in Writing, and signed by the Defendant, and he did in Answer to the said former Letter express and declare as much under his Hand, and thereupon the Marriage took effect. But the Defendant pretended, he never made any such Agreement, and that the Plaintiff married his Daughter without his Consent, but confesseth he received a Letter from one Reeve, a Friend of the Plaintiffs, wherein he desired the Defendant to be clear, and say what he would lay down upon the Nail in marriage with his Daughter to the Plaintiff, and what he would secure to be paid at his death; and that he sent a Letter to Reeve in Answer, wherein he acknowledged the Plaintiffs deserts exceeded his ability, and with all plainness acquainted him, he would give her 1500 l. in present out of his Estate at Creaton, and 500 l. more at his death, if she should have Issue then living; but that afterwards Mr. Reeves sent a Letter in Answer to that, whereby the Treaty and Proposals are absolutely waved, and the Defendant never further Treated; but the Marriage was had without his Consent, and without any Agreement in Writing or Settlement, and therefore he insists upon the Act, for prevention of Frauds and Perjuries. To which the Plaintiff insists, The last Letter sent by Reeve was no manner of the Treaty or Proposal in the former Letters in Jan. 1680. This Court, Letters under one's Hand, shall amount to a good Agreement within the Statute of Frauds and Perjuries. on reading the several Letters sent by Reeve to the Defendant, in the behalf of the Plaintiff, and the Defendants Answer thereunto, This Court is fully satisfied, the Plaintiff upon his Marriage became well entitled to the 1500 l. agreed by the Defendant under his own Hand, to be paid to the Plaintiff as his Wife's Portion, out of his Estate at Creaton; and decreed accordingly. Bradbury contra Ducem Bucks, 36 Car. 2. fo. 401. THis Court did declare, Interest upon Interest, decreed. That the Plaintiffs ought to have Interest for their Interest Money from time to time, when it is a stated Sum. Dom' Pawlet contra Dom' Pawlet, 36 Car. 2. fo. 516. This is upon a Case stated, viz. THat John, Trust for payment of Debts, Maintenance of younger Children, and raising Portions. late Lord Pawlet, on Marriage with the Plaintiff the Lady Susanna his second Wife, and of her Portion, settled a Jointure of 1000 l. per Annum on her, and afterwards having 3 Children, (viz.) the Defendant the now Lord Pawlet, and Susanna, and Vere Pawlet, by Deed conveyed Lands to trusties, and their Heirs, (viz.) to the use of the said Lord Pawlet for life, charged with Portions for his Daughters, by the Lady Essex Pawlet his former Wife, and after the death of the said Lord Pawlet, to the use of Francis Pawlet and others, for 500 years on Trust, that they should after the commencement of the 500 years, out of the Profits, or by Leases, or other lawful ways out of the premises, allow the now Defendant Maintenance, and also sufficient to pay all the late Lord Pawlets debts, and maintenance for the younger Children; and after that to raise Money to pay the younger children's Portions in such manner and time as the said Lord Pawlet should by any Writing or last Will appoint, and in default of such limitation or appointment, the trusties to raise 4000 l. a piece for every younger Son, and 4000 l. a piece for every Daughter of the said Lord Pawlet by the Lady Sasanna, to be paid at their Ages or day of Marriages, if such Portions could conveniently be raised, and if not, then so soon after as the same could be; with this further. That every younger Son and Daughter should have Maintenance till Portions paid; and after all the said Sums raised, the Remainder of the 500 years, to be surrendered to whom the immediate Reversion belonged, which is now the Defendant. That the late Lord Pawlet by Will in 1677. (and published at the same time when the said Deed was executed) gave to his said two Daughters Susanna and Vere Pawlet 4000 l. for their respective Portions, to be paid them as the said Deed directed, and made the said Francis Pawlet, and the other trusties, Executors. Will pursuant to a Settlement, for raising Portion. That Vere Pawlet, one of the said Daughters died, and the Plaintiff her Mother took Administration to her Estate, and thereby entitles herself to the said Portions of 4000 l. appointed to be paid to the said Vere at her Age or day of Marriage. And the Question now being, Whether the Plaintiff by virtue of such Administration, is entitled to the Portion of her said Daughter Vere, who died before her Age or day of Marriage, and the trusties should be compelled to raise the same out of the Trust of the Term of 500 years, which was granted out of the Defendant, the now Lord Pawlet, the Infant's Inheritance. This Court upon perusal of Precedents declared, Difference between a Legacy and a Trust. they did not find any of the Precedents that came up to this Case, and conceived there was a great difference between a Legacy and a Trust, for that a Trust is expounded according to the intent of the party, but a Legacy is governed by the Rules of Common Law, and an Executor who is to have the residue in one case, is not of so great regard as the Heir, who is to have the residue in the other: Settlement for the raising of 4000 l. Portion to two Daughters, to be paid at Age or day of Marriage, one die before, her Portion shall not go to her Administrator, but the Heir shall take profits. That this case is of general concern to all Families, for it was grown a thing of course, to charge the younger children's Portions upon the Heirs Estate, which would not have been charged, but for these occasions of providing for Children. And in this case, the time of payment never happening, but becoming impossible by the death of the Child before the Portion was payable, the Plaintiff has no right to demand it: And it were hard for this Court to make a Strain against the Heir, where the consideration fails, for which the Portion was given, (viz.) the advancement of the Children; and altho' there were a Will in the case, yet it refers to the Deed, and was made at the same time, so that it does not at all alter the consideration of the Case, and it would be hard to decree the payment presently, for that were to wrong the Heir, who is to have the proceed of the Money beyond the maintenance until the time of payment; This Court saw no ground to take it from the Heir at Law, to give it to an Administrator, who might have been a Stranger, and so dismissed the Plaintiffs Bill. The Precedents used in this Cause for the Administrators were, Rowley contra Lancaster, Brown contra Bruen, Clobery contra Lampen. The Precedent for the Heir, Gold contra Emery, This Cause was heard in Parliament, and the dismission confirmed. Woodhall contra Benson, & al' 36 Car. 2. fo. 314. THat John Wirley deceased, Settlement, Will. being possessed of divers Manors and Lands for 320 years, that the said Term came to the Defendants adam's and Shagburgh, in Trust for payment of Monies, and after in Trust for Edward coley, Grandson of John Wirley for his life, and after his decease to the Plaintiff Ann, late Wife of the said Edward coley, and the said Plaintiff Ann to have 130 l. per Annum for her life, which Settlement was made in consideration of Marriage, and after the death of Edward coley, the trusties were directed to permit the Heirs Males of Edward on the Plaintiff Ann to be begotten, to receive the residue of the profits, and in case of no Issue Male of her, there is provision for Daughters, and Limitations over to the said Edward Colley's Heirs Males; and it was also declared, that in case the Plaintiff Ann should Survive the said Edward, than she to have the moiety of the Manor house for her life; that the Trust limited to the Heirs Males of Edward, and the Remainders thereupon depending are void, and the benefit of the whole Trust was in Edward, for that the Trust would not be Entailed. That by another Deed it was declared by the said Edward coley and his said trusties, that in case the Plaintiff Ann should have no Issue, she should have the whole Manor house above the 130 l. per Annum, and by another Deed, the said Edward coley by consent of his said trusties declared, in case the said Edward should die leaving the Plaintiff Ann no Issue, and should not otherwise dispose of the residue of the profits of the premises over and above the Rents and Charges payable as aforesaid, than his said trusties after his death, should by Sale or Leases of the premises pay all debts, and after all debts paid, to permit the Plaintiff to receive the residue of the profits for her life, and after her death to permit the right Heirs of Edward to receive the same: That the Trust for the right Heirs of Edward was void and reverted, and the said Edward did afterwards declare, that in case he had no Issue, he intended to leave his whole Estate to the Plaintiff Ann. That the said Edward, 22 Jan. 26 Car. 2. made his Will in writing, reciting the Agreement in the last Deed touching payment of his debts, and after some small Legacies devised to his said trusties all the rest of his personal Estate in Trust, that they should pay his debts as aforesaid, and declared his meaning to be, that his Executors after his debts paid should deliver the overplus to the Plaintiff Ann, deducting 5 l. apiece for their pains and all charges; That Edward soon after dying the overplus belonged to the Plaintiff, and the said trusties possessed the premises and the personal Estate, and the Plaintiff Ann having since intermarryed the Plaintiff Woodhal, whereby the whole belongs and remains unto him in right of his Wife, and the said trusties ought to Assign to the said Plaintiff: But the said trusties pretend the Trust and Term aforesaid, doth after the Plaintiff Ann's death belong unto the Defendant Gabriel Ciber and Jane his Wife, she being the only Sister and Heir at Law of the said Edward coley; That the Defendant Benson knowing of the Will and Settlement aforesaid, purchased the premises of the Defendant Ciber and his Wife, and the trusties Assigned to him. The Defendants, the trusties insisted, That their names were used in the Marriage Settlement of Edward coley, upon his Marriage with the Plaintiff Ann, in which Settlement was recited a Conveyance made by John Wirley, whereby he did demise the Trusts therein mentioned, and the premises in Trusts as to Clark's Farm, for such persons as he or his Executors should by Will or otherwise direct, and several other persons upon several other Trusts, and as to several parcels of the said premises which the said Defendant conceived, was the Estate lately enjoyed by Edward coley in Trust for such persons as the said John Wirley should direct, and for want of such appointment to Jane his Daughter for her life, and after to John coley her Son and Heir and his Issue Male, and for want of such Issue in Trust for the Daughters of the said Jane, and after the death. of Jane and John, Edward was entitled, and he together with Sir John Wirley the Surviving trusties upon Edward's marrying with the Plaintiff, did Demise to the said Defendants the trusties, the Manor-house, etc. for the Term of 20 years in Trust to pay certain Annuities therein mentioned, and to permit Edward Colly for his life to receive the profits of the residue, and in case the Marriage took effect, and the Plaintiff Ann Survived him, then to pay her 130 l. per Annum for her life, and after Edward's death, to permit the Heirs males of their two Bodies to receive the residue of the profits, and for default of such Issue male there is provision for Daughters, and supposes the residue of the profits may be limited to any Issue male of Edward's, and for want of such Issue, to permit the Defendant Jane and Ann since deceased Sister, of the said Edward, to receive the profits of the Estate as the Deed expresses, and that he remembered no other Agreement than what is mentioned in the said Deed, and sets forth the Deed of 21 Jan. 26 Car. 2. whereby the said Defendants, the trusties were entitled by Sale or Leases to pay debts, and after payment thereof (if the Plaintiff Ann should be then living) should permit her to receive the residue of the profits for her life, and afterher decease the right Heirs of Edward to receive the same; that after the time of executing the last mentioned Deed, the said Edward made his Will, and after some Legacies took notice of the said Deed bearing date the day before, and it was declared thereby, that the Defendants, the trusties should out of the profits pay all his debts, and being fearful those profits should not do, did Devise to them all the rest of his personal Estate, and made them Executors, and after debts paid the residue to the Plaintiff Ann. That Nou. 1676, Edward coley died, after which the said Defendant proved the Will, and entered on the Estate; But the Defendants Ciber and Jane his Wife insisted, That the said Defendant Jane being the only Sister and Heir to Edward coley, are after his debts entitled to the premises for a long Term, to commence after the death of the Plaintiff Ann, and have sold their interest to the Defendant Benson. Upon reading the said Deed and Will, A Term in gross, and not to be Entailed. the Lord Keeper North was of opinion, that the said Term so as aforesaid Created, was a Term in gross, and so not capable of being entailed, and therefore it could not descend to the Heir of Edward coley, but that the same should be liable to the payment of his Debts, and that the Plaintiff Ann should hold the 130 l. per An. for her life, and after the said Debts paid, the Plaintiff Ann should receive the profits of the whole Estate for her life, charged with the said Annuity, and the said Plaintiffs were to redeem the Mortgage to the Defendant Woodward: But as to the Residue of the said Term, after the death of the Plaintiff Ann, and debts paid, how the same should be disposed, a Case was ordered to be made. A Case being Stated, this Cause came to be heard thereon before the Lord Chancellor Jefferies, and all the former plead being opened, as also the Defendant Cibers' cross Bill, which was to this effect (viz.) to have the said Term of 820. years to attend the Inheritance, and the Case stated, appearing to be no otherwise than before is set forth. His Lordship on reading the said Deed and Will, A Residue of a Term after debtspaid and a life determined, Decreed not to the Residuary Legatee, but to the Heir. the Question being, who shall have the remainder of the Term in the said Lease, whether the Plaintiff Ann as Residuary Legatee, or whether she shall have only an Estate for life, his Lordship declared, that the Deed and Will do make but one Will, and by them there was no more intended to the Plaintiff Ann, than an Estate for her life, and that she ought to enjoy the whole Mansion House cum pertin ' during her life, and also the overplus of the profits of the Residue of the said Estate after Debts and Legacies paid, and the Defendant Benson who purchased the Inheritance of Ciber, to enjoy the same, discharging all things as aforesaid. Hall contra Dench, 36 Car. 2. fo. 799. THat the Plaintiff Grace Hall, Will. Revocation. being Daughter of William Knight deceased, who was Son of Susanna, one of the Sisters and Coheirs of Thomas Bridger deceased, which said Thomas Bridger being seized in Fee of Lands in Binstead and Middleton, and having no Children, made his Will in 1663. by which he gave to Tho. Knight Son of the said Willi. Knight, all his Lands in Binstead to the said Thomas Knight, and the Heirs of his Body, and for want of such issue, then to the Plaintiff Grace, and the Heirs of her Body, with Remainders over, and by the same Will, Devised one Moiety of the Lands in Middleton, to the said Thomas Knight, and the Heirs of his Body, with the like Remainders over, and sometimes after the said Will, the said Thomas Bridger Mortgaged the said Lands in Binstead, to John Comber and his Heirs for 500 l. and the said Bridger repaid the 500 l. and had the Mortgage delivered up and Canceled, but no Reconveyance of the Lands, and that the said Cumber after that, was but a Trustee for Bridger the Mortgagee, who in 1682. declared, that the Will he made in 1663. should stand, and be his last Will, and then denied: But the Defendant Dench having got the Canceled Deed in his Custody, and the Plaintiff brought an Ejectment under the Title of the Will, and got a verdict for the Lands in Middleton, but the Defendant at the Trial, setting up a Title in the Defendant Comber, upon the Canceled Mortgage for the Lands in Binstead, a Verdict passed for the Defendant, so to have the said Mortgage deed delivered up, and the Plaintiff to enjoy the premises according to the said Will, is the Bill. The Defendants as Coheirs at Law to Bridger, insist, That the Testator Bridger, never intended that the Estate should go as that Will directed, in regard he soon after the said Will, Mortgaged the same to Cumber, and besides the Legatees and Executors in the said Will, were most of them dead before the said Bridger, and the Mortgage money was not paid till after the Estate forfeited, and that the Mortgage to Cumber, was an absolute Revocation of the said Will, and upon an Ejectment brought by the Plaintiff under the said Will, the Defendants obtained a Verdict for the Lands in Binstead, wherein the validity of the said Will was in issue. The Plaintiffs insist, That the Verdict obtained by the Defendants as aforesaid, was, by reason the Title in Law was in Comber the Mortgagee, and not upon the Vallidity of the Will, and that a Verdict had been had in affirmation of the said Will for other Lands therein mentioned, and the Testator was in possession of the premises at the time of his death. This Court (the Defendants insisting to have it tried at Law, whether a Revocation of the said Will or not) declared there was no Colour to direct any Trial at Law in this Case, for that on reading the proofs, it plainly appeared, When the Mortgage money is paid, the Mortgagee and his Heirs are trusties for the Mortgagor and his Heirs. that the Testator expressly declared, the said Will should be his last Will, and that upon such an express proof, it would be vain to direct a Trial at Law, and declared, that when the Mortgage money was paid, the Morgagee and his Heirs immediately from that time, became trusties for the Mortgagor and his Heirs, and the Court having considered of several precedents, as well Ancient as Modern, A Will, and after that a Mortgage, the Will is Republished its a good Will, and not revoked. which were full in the point, that notwithstanding such Revocation, yet there was a Republication of the Will, and that the same was a Republication of such a nature, that made the said Will a good Will, and decreed the Defendant Grace, to enjoy the premises according to the said Will. This Cause came to be Re-heard before the Lord Chancellor Jefferies, who was well satisfied with the Republication, and declared, that notwithstanding the said Mortgage, the Will was a good Will, and not revoked, and confirmed the former decree. Pullen contra Sergeant, R6 Cor. 2. fo. 570. THe Bill is to have a discovery of the Estate of Ann Nurse deceased, and a distribution to be made, and the Plaintiffs to have their proportions thereof, they being next of Kin to the said Ann Nurse, (viz.) the Plaintiff Ann, Wife of the Plaintiff Pullen, Sister by the Mother's side of the said Testatrix Ann Nurse, and the other Plaintiffs, are of the same degrees of Consanguinity, and so are Entitled to their equal shares of her Personal Estate, Executrix dies before the Testator, there shall be Administration, cum Testamento annex '. and the said Ann Nurse, made Ann the Wife of William Hodges Executrix, who died before the said Ann Nurse, and the said Ann Nurse died without altering of her Will; That after her death, the Defendant Serjeant a Relation to the said Ann Nurse, took Administration of the said Ann Nurse's Personal Estate. The Defendant insists, That he being only Brother, and one of the nearest Relations to Ann Nurse the Testatrix and her said Executrix dying before she Administered with the Will annexed, and paid Debts and Legacies, and is willing to Distribute as the Court shall direct, and craves the Direction of the Court, whether the Plaintiffs being of the half-blood, shall have equal proportion with the Defendant and others of the whole blood. This Court declared, They of the half-blood, shall have equal share of the Personal Estate, with those of the whole blood. That the Plaintiff who are of the half blood to the said Ann Nurse, were equally entitled to a Distribution of the said Estate, and to an equal share of the Defendant Serjeant and others, who are of the whole blood, and decreed the same accordingly. Keale contra Sutton, 36 Car. 2. fo. 773. THE Defendant being Arrested in the Marshals Court, A Prohibition granted, for Arresting in the Marshals Court, for matters arising in Berkshire. for matters arising in Berkshire, out of the Jurisdiction of that Court. This Court granted a Prohibition, which being Disobeyed, an Attachment was ordered against the Persons Disobeying the same, and the Defendant to proceed upon the same. carvil contra carvil, 36 Car. 2. fo. 142. THat the Testator Robert carvil by Will, the fifth of June 1675. Will. and thereby gave the Plaintiffs several Legacies, and also Legacies to the Defendants, which he appointed to be paid by Sale of Lands, after the death of his Sister Rosamond, whom with the Defendants, he made Executors, and gave his said Executors (residium bonorum) and in 1678. died, and the said Rosamond is dead. That the Defendant Robert carvil being the Eldest Son of Henry the Testators Brother, is his Heir at Law, who insists, That the Testator made no such Will, and that he claims the said Lands by Dissent, or if any such Will was made, the Testator was non compos at the making thereof, and that no Person was named in the said Will, to Sell the said Lands, and insists on the Act against Frauds and Perjuries, and Avers, Statutes of Frauds and Perjuries. That the Testator died not till 1680. and that he did not make and sign, that Will according to the said Act, there being no Witnesses that have Attested it according to that Act; and doth therefore insist, that the same is void in Law, as to the Devise of Lands, and that the same are come to him as Heir, and he hath since Recovered the same at Law, and insists also, that the said Will is void in Law, because no Person is appointed to make Sale, and being but a voluntary Disposition for payment of Legacies, and not Debts, the Plaintiff ought to have no Relief, to make the same good in Equity to the Disinherison of the Defendant, the Heir at Law. But the Plaintiffs insisted, Though the Testator died after the said Act, viz. December 1678. yet the Will was made long before the 24th of June 1677. and so is not within the intention of the said Act, and that though no Person be in express words named to Sell the Lands, yet the Sale ought to be made by his Executors, and the Heir ought to be Compelled to join in the Sale. The Defendant the Heir insisted, That though the Will might be out of the provision of the Act, being made before the making of the Act, yet there is no good proof, that any such Will was made or published by the Testator. This Court directed it to Law on this Issue, Devisavit vel non devisavit, Will, or not Will. and a Verdict passed for the Plaintiff. This Cause coming to be heard on the equity reserved, and this Court being satisfied with the Verdict which was (viz.) That the said Robert carvil the Testator, did make and publish such Will, and thereby devised the said Lands to be sold as aforesaid. This Court upon reading the Will, Lands Devised to be sold, and now expressed to sell the same, Executors Decreed to sell. decreed the said Lands to be sold by the said Executors, and the said Legacies to be paid thereout, according to the said Will. Norton contra Mascall, 36 Car. 2. fo. 544. THE Suit is to have a voluntary Award performed, A voluntary Award Decreed, to be performed. the Defendant insisted, It being a voluntary Submission of the parties, and the Reference not directed by this Court, the Award was void, and ought not to be performed and demurred by the Plaintiffs Will. The Master of the Rolls ordered Precedents, and upon reading of the Award, declared, he saw no Cause to relieve the Plaintiff, but dismissed the Bill. This Cause was Re-heard by the Lord Chancellor Jefferies, who declared, he saw no cause why the said Award should be impeached; but it was fit that the same should be performed, being in part executed and assented unto, and decreed the same to stand confirmed, and the Defendant to perform the same. REPORTS OF CASES Taken and Adjudged in the COURT of CHANCERY In the Reign of King JAMES II. Attorney General contra Vernon, 1 Jac. 2. fo. 388. THE scope of the Information in this Cause being to set aside Letters Patentsobtained by the Defendant Vernon, Information against Patentees of Needwood Forest. in the Names of the Defendants Brown and Boheme, in nature of a Grant or Contract under the Seal of the Duchy of Lancaster, of the Honour of Tudbury and Forest of Needwood, at a great undervalue, wherein his late Majesty was surprised; His Majesty's Attorney General by Information setting forth, That his late Majesty being seized in Fee in right of his Crown, as parcel of his Duchy of Loncaster, of the said Honour of Tudbury, of the value of 2000 l. per Annum, and also of the benefit of Timber Trees, Woods, etc. of the value of 30000 l. whereon the Defendants commit Waste, pretending Title to the premises by Grant of the Crown from his late Majesty, Grant obtained per Surprise. whereas such Grant was unusually obtained, and by surprise, for that about Sept. 1683. for some small Sum, and getting some interest in Ground at Sheerness, to the value of about 500 l. and endeavouring to value the Lands at Sheerness at 3000 l. in October following they did prefer a Petition for the said Grant, and obtained a Reference thereof to Sir Thomas Chichley, Chancellor of the Duchy, and hastily obtained a Report in November, and within two days after the Report, a Warrant was signed for passing the Grant, though endeavours were used to stop it by Command from his late Majesty, and the Lords of the Treasury, the 19th of the same November, and particular Application made to the Chancellor of the Duchy, he then denying he knew thereof, and it was not known that any Grant was thereof, till the particular thereof was found in a Scrivener's Shop about a Month after the passing thereof, contrary to the course of the Duchy, there being no such Grant yet Registered or Enrolled, to the prejudice of his Majesty, and the Nobility and others, having dependency there, the said Defendant having given untrue Particulars of the most profitable Matters thereof, to the value of some Thousand pounds, wherefore the said Grant aught to be delivered up to be Canceled. The Defendant Vernon insisted, That the Defendants having long Leases of the said premises unexpired of a great yearly Rent, and also Offices within the premises, upon which hath been expended great Sums of Money in Buildings and Repairs, whereby his Majesty's ancient Rent hath been much increased; and the Defendant Vernon being informed of some endeavours used to obtain the Reversion in Fee of the said premises, he petitioned his Majesty in September 1683. in the Name of the other Defendant Browne, to prevent a Merger of the said Leases, and on the 29th of the said September obtained a Reference to the Chancellor of the Duchy of Lancaster, and 19 November 1683. the said Chancellor made a Report, and thereupon 20 Nou. 1683. his Majesty signed a Warrant, dated the 19th of the same Month, authorising the Chancellor to make a Grant of the premises: That thereupon the Defendant Vernon, by Deed 20 Nou. 1683. between his late Majesty of the one part, and himself on the other did sell unto his Majesty all those 4● Acres in the Isle of Sheppey, whereon his Majesty's Fort of Sheerness is built: That in consideration thereof, and 7000 l. paid by the Defendant for his Majesty's use▪ his said Majesty 21 Nou. granted unto the Defendants Brown and Boheme, i● Trust for the Defendant Vernon, all the said premises. And the said Defendant Vernon insists. That the said Patent passed regularly, and is effectual in Law, and ought not to be impeached, the impeachment whereof being in derogation of other his Majesty's Grants, and the Consideration is equivalent to the Grant, his Majesty's Favour being an Ingredient thereunto, and the premises mightily overvalued by the Surveyor, and the said Patent was le●● with a Scrivener, whereon to raise 10000 l. but the same was not thought a sufficient Security for such a Sum: That the Defendant Browne for 10300 l. hath purchased the said premises of Vernon, and insists on the said Grant as good in Law and is advised that this Court will be tender in examining the Methods of the passing the said Grant, when it hath received the allowance of the proper Officer, by having the Seal affixed to it. His Majesty's Council insisted, Information by English Bill, proper to relieve against a Patent. Patent not Reversable per Scire facias. That this Suit is properly brought in this Court by English Bill, to be relieved against the said Grant or Patent, and that no Scire facias can be brought in the Duchy, or in this Court for the Reversal thereof, and if a Bill or Information (as this case is) should not be admitted, his Majesty would be in a worse condition than any of his Subjects, considering the great over-value, and the quick, hasty, and unusual manner of passing the Patent, contrary to all Patents of that nature, it passing neither by Privy Seal, Privy Signet, or any immediate Warrant, but the Chancellor of the Duchy acted therein in all Capacities, and passed the Grant after Notice and fresh pursuit by his late Majesty for recalling the same, and express Prohibition, that no Money should be received. This Court, assisted with several Judges, were all clear of Opinion, That this Suit was proper by English Bill, and that the Patent could not be annulled or made void by Scire facias, or otherwise, at the Common Law, and the Bill being to have remedy for his Majesty, against Fraud, Surprise and Deceit, which their Lordships declared was made out, and that the King was most grossly deceived and abused as to the value, and that therefore his Majesty ought to be relieved in this Court or otherwise he would be remediless, and so in a worse condition than any of his Subjects in a case of this Nature; and this Court with the said Judges, taking into consideration the excessive over value which was offered to be made good by the Surveyor, the surprise and deceit, and the speedy and unusual passing the said Grant, and that no Money was paid till the Grant was ordered to be stopped, and directions for this prosecution, which was before Livery and Seisin. This Court declared, and was fully satisfied, That in this Case his Majesty ought to be relieved, Grant and Inrolment in the Dutchy-Court vacated, and the Patentees decreed to Reconvey to the King. and the said Grant set aside and made void, and decreed the same accordingly, and the Inrolment thereof in the Dutchy-Court vacated, and the Defendants to procure those in whom the Estate in Law is to Reconvey unto his Majesty, and the Defendants at liberty to apply to his Majesty, for to have the Money paid back, which was paid to Sir Thomas Chichley and Cuxton, as aforesaid. Beckford contra Beckford, 1 Jac. 2. fo. 196. THat Richard Beckford Citizen and Freeman of London, had several Children, and by his Will in writing after Debts and Funeral Charges paid, appointed one full third part of his Personal Estate to the Plaintiff Frances Beckford his Relict, according to the Custom of the City of London, and declared that Frances and Elizabeth, two of his Daughters, had been fully advanced in his life-time, and that Mary and Jane, two other Daughters had not, and directed they should bring their Portions they had received, into the third part of his Personal Estate, belonging unto his unpreferred Children, and they should have equal shares with his unpreferred Children. Now the question between the Plaintiff Frances, and the unpreferred Children how the said Estate, should be divided by the Custom of London, the Plaintiff Frances insisting, that the Children not fully Advanced, aught to bring what they had received into the whole Estate, and then she ought to have one full third part of the whole Personal Estate, insisting, That every Widow of a Freeman, aught by the Custom of London, to be endowed with one full third part of the whole Personal Estate. This Court declared the Custom to be, The unadvanced Children by the Custom of London, to bring in what they had received into with with the Orphanage thirds, after the Estate is divided into thirds, and not with the whole Estate. That the Testators two Children, Mary and Jane, who were not fully Advanced, were to bring what they had received into with the Orphanage thirds, after the Estate is divided into thirds, and not into Hotch potch with the whole Estate, and decreed accordingly. And what hath been received by any one, more than their share and Legacies, is to be Repaid, as the Master shall appoint. Halliley contra Kirtland, 1 Jac. 2. fo. 566. THat John Park Mortgaged Lands to the Defendant Kirtland for 60 l. Mortgage. and was also indebted to the Defendant Sanderson 50 l. on Bond, and the said Kirtland wanting his money, Assigned the said Mortgage to the said Sanderson, so that Sanderson on payment to him the money paid to Kirtland, on the said Mortgage, and his 50 l. on Bond and Interest, is willing to Reconvey to the Plaintiff, which they refuse to do. This Court in as much as the Estate so vested in the Defendant as aforesaid, The Plaintiff decreed to pay off a Bond of 50 l. as well as the Mortgage money upon Redemption. is a Chattel Lease, and so liable to debts, and the Defendant having an Assignment of the Mortgage, and his debt on Bond being a just debt, declared, that the Plaintiff ought not to be let in to a Redemption of the said Mortgage, but upon payment of the said 50 l. and interest due on the said Bond, as well as the Mortgage money, and decreed accordingly. Coltman contra Warr, 1 Jac. 2. fo. 566. THis Court would not Rehear a Cause after decree Signed and Enrolled, No re-hearing after a Decree Signed and Inroled. notwithstanding the said Cause had been opened since the Enrolment, in order to Re-hearing, and discharged the Order for Re-hearing. Jones & al' contra Henly, 1 Jac. 2. fo. 995. SIR Robert Henly by Will gives 100 l. Legacies. a piece to all his Servants, which Will is Dated the 10th of November 1680. and Sir Robert lived afterwards till the 7th of August 1681. but made no Republication of the said Will, and the Plaintiffs as Servants to Sir Robert demands 100 l. apiece Legacy: That these Servants, (viz.) Jones, Clerk, Meek, Serle, and Hanbury, were all Menial Servants before the 10th of November 1680. and so continued till the 7th of August 1681. That these Servants, (viz.) Litchfield, Davies, Deacon, Booth, Noon, etc. were all Servants at the time of his death, but were not in his Service, at the time of making of the Will; that Cook and Hawkes were both Servants at the 10th of November 1680. but before the 7th of August 1681. were discharged from his Service: That William Harris son was a Menial Servant the 10th of November 1680. but died before the 7th of August 1681. That Castilian Goddard, etc. were Servants at large, but not Menial, (viz.) as Steward and Bailiff before the 10th of November 1680. and so continued till the said 1681. but did not Inhabit in the House: That Stranger and Long were Chairmen, and agreed with after the said 1680. at 20 s. per week so. The Plaintiffs insist, That such that were his Servants at the time of his death, aught to have the benefit of the said Devise. But the Defendant insisted, That none of the Plaintiffs can be any ways entitled to that benefit, but only such as were Menial Servants, before the publishing of the said Will, and did so continue all along to be Menial Servants, and live in the House with him, to the time of his death. This Court declared, Who are Servants capable to receive Legacies by the general words of a. Will, To all my Servants etc. that none of the said Plaintiffs, but such as were Servants to the said Sir Robert, before the making the said Will, and did so continue to be Servants to him, until the time of his death, could have any pretence to the said Legacy, and such only as were his Menial Servants, and lived all along in the House with him, from before the 10th of November 1680. until the 7th of August 1681. and no others, and ordered that Jones, Clerk, etc. only, and no other of the Plaintiffs be paid their Legacy of a 100 l. a piece by the said Defendant, and ordered the Bill as to all the other Plaintiffs, to be dismissed. Fenwick, & al' contra Woodroffe, & al' 1 Jac. 2. fo. 400. THat Doctor Smalwood deceased, Agreement on Marriage to purchase Lands. by Deed in 1672, conveys the Land and premises to trusties and their Heirs, to the use of himself for life, Remainder to Theophania his Wife for life, Remainder to Mary their sole Daughter, and the Heirs of her Body, Remainder to his own right Heirs, with a proviso, That if his said Daughter Mary, should then after Marry in his life time without his privity and consent first had, than all and every the uses and limitations therein mentioned and made should cease and be utterly void, That the said Mary did intermarry with Sir John Lloyd, in the Doctor's life time with his consent, who upon a Settlement made on the said Mary was to have 2000 l. Portion, 1500 l. whereof was to be laid out in Lands for increase of mary Jointure, and that she had Issue by him the Plaintiff Ann. That Sir John Lloyd died, and the said Dame Mary intermarryed with one Hutchinson, without the consent, good liking, or privity of the said Doctor Smalwood her Father; That in 1683, the said Doctor Smalwood died, having by his Will in 1683, made the Defendant James Smalwod and others Executors, and thereby devised and settled his Estate real and personal, (viz.) according to his Settlement formerly made, he gave his said Daughter Dame Mary all his Lands during her life, if his Executor should so think sit, and in case they should not to his Granchild Ann Love, and in case of failure to his Grandchild, Theophania Hutchinson during her life, and in case of failure to his Nephew, the Defendant James Smalwood for ever: And his personal Estate, as Money, Books, Plate, etc. to be divided amongst his said Daughters, Grandchilds and Nephew James Smalwood at the discretion of his Executors, so to have the said 1500 l. which rested in Dr. Smalwoods' Hands, being part of the 2000 l. Portion, Covenanted by Dr. Smalwood to be laid out in Lands by the said Doctor for increase of Mary's Jointure aforesaid, to be laid out according to the Doctor's Covenants; and to have the benefit of the said Settlement in 1672, is the Plaintiff Bill. The Defendant James Smalwood pleads, and claims a right to the Estate of Doctor Smalwood by his Will, and by the said Deed of 1672, the said Dame Mary having by her Marriage with the said Hutchinson in the Doctor's life time, without his privity or consent, broke the Condition, by which she was to have enjoyed the Lands in that Settlement, and prays the Judgement of this Court, the Estate being limited to him as aforesaid; And he further pleads and insists, That Dame Mary ought not to have any discovery of the Writings of the Doctor's Estate, because he the said James Smalwood, and the other Defendant Woodroff have not yet consented, that she should have any part of the Doctor's Estate, which power was given them by the Doctors Will as aforesaid; and whether he and the other Defendant ought to consent as aforesaid, submits to this Court. But the Plaintiffs insist, Lands settled on a Daughter provided she Mary by consent, and she Marries by consent, after she Marries a second Husband without consent, this second Marriage is no breach of the proviso. That they admit such proviso in the Deed of 1672, that in case the said Dame Mary should Marry in the life time of the Doctor without his privity, consent and liking, than all and every the Limitations therein should cease and be void: But insist, That the Marriage between Sir John Lloyd and Dame Mary was concluded by the Doctor himself, as appears by the said Articles, and that they married with the Doctor's good liking privity and consent, according to the said Condition, and insist, That Dame Mary's second Marriage with Hutchinson was not without the consent, privity and good liking of the said Doctor; and insist also, that the said proviso by Dame mary first Marriage was fully performed, and the Estates in and by the said Settlement granted, absolutely vested according to the Limitation declared and contained, so as the said second Marriage of Dame Mary with the said Hutchinson, if it had been without such consent could not have divested the same, and therein crave the Judgement of this Court. The Court declared, That the first Marriage of Dame Mary being by her Father's consent, her second Marriage though it had been without his consent, could be no breach of the Proviso or Conditon in the first Settlement, and decreed the Defendants, the Executors of Doctor Smalwood to account for all the personal Estate of the said Doctor, moneys decreed to be laid out in Land, according to Marriage Agreement. and the Rents and profits of the real Estate, and if personal Estate sufficient after debts to pay the 1500 l. then they are to pay the same to the trusties, which they are to lay out in a purchase of Lands, according to the Deed of the 18 Aug. 1683. come Winchelsey & al' contra Dom' Norcloffe & al' 1 Jac. 2. fo. 1026. THat Katherine, Act of Parliament for the Settlement of Intestates Estates. late Countess of Winchelsey the Plaintiff the Earls late Wife, had three Husbands Successively, (viz.) Lister her first Husband, by whom she had Issue, the Defendant Christopher Lister, Sir John Wentworth her second Husband, by whom she had Issue Thomas Wentworth, since deceased, and the Defendant John Wentworth, and the Plaintiff the Earl her third Husband, by whom she had Issue the said Lady Catherine, and the Plaintiff the Lady Elizabeth: That the said Wentworth had a Real Estate by descent from his Father, out of which, after his Father's death, there was payable to, or to the use of the said Thomas, several Sums of money, for Rents, Fines and Profits. That in 1684. the said Thomas died Intestate, leaving no Wife or Child, but leaving the Defendant Christopher Lister, John Wentworth, the Lady Katherine, and the Plaintiff the Lady Elizabeth, his Brothers and Sisters, who being the next of Kin, in equal degree (his Mother the said Countess dying in his life-time) they by Virtue of the late Act of Parliament, for selling Intestate Estates, became Entitled to the surplus of the said Thomas, his Personal Estate to be equally distributed, and divided amongst them, (viz.) to each of them a fourth part thereof; that before any Distribution made, the Lady Katherine died Intestate, and Administration of her Estate was granted to the Plaintiff the Earl her Father, who by Virtue thereof, and of the said Act of Parliament, aught to have the said Lady Katherine's fourth part of the said Personal Estate of the said Thomas Wentworth her Brother, and the Plaintiff the Lady Elizabeth, aught to have another fourth part; but the Defendants pretend that part of the said Thomas his Personal Estate, was in his Life-time Invested in the purchase of Lands, which were Conveyed to him and his Heirs, and aught to Descend to the said John Wentworth, as his Brother and Heir, and the said money ought to be accounted as part of his Personal Estate, whereas if any such Purchase were made, the same were without his Consent, and during his Minority, when he had no power to direct the laying out thereof, and the Lands in Equity, aught to be accounted part of his personal Estate, of which the Plaintiff seeks to have their shares. The Defendants insist, That the Defendant John Wentworth only was of the whole Blood, the rest being but of the half blood to him only, and leaving the Defendant Dame Dorothy his Grandmother, by the Mother's side (viz.) Mother of the said Countess, who conceives herself to be Entitled as Grandmother to an equal share with any of his Brothers and Sisters; and insists, That the said Lady Katherine dying within less than a year after the Intestate Thomas Wentworth, she was not by the said Statute, Entitled to any share of the said Personal Estate, her supposed Right being merely a thing in possibility and Expectation, which vanished by her death within the year: And the Defendants insist, That the Countess before her Marriage with the Plaintiff the Earl (viz.) in 1673. granted Lands to trusties for 21 years, if she so long lived in Trust out of those Lands, and other Lands late of Sir John Wentworth, to pay her 200 l. per Annum, till the said Thomas was 12 years of Age, for his Maintenance, and after till 21, so much as the said trusties thought fit, and the Residue for the benefit of the said Thomas, his Heirs and Assigns: That the said Defendants with the Countess' Approbation out of the moneys arising by the said Trust, made several Purchases in their own Names, and declared the Trust thereof for the said Thomas Wentworth and his Heirs; and the Defendant Dame Dorothy made other Purchases in her own Name, with the said Thomas his momey, which she received in Trust for him, and insists, that those moneys so invested in those Purchases in the life-time of the said Thomas in Trust, are not, nor at his death were any part of his Personal Estate, but the Lands descend to the Defendant John Wentworth, as his Heir. That Sir John Wentworth died in 1671. and left a great Personal Estate, which came to the Earl and Countess on their Marriage, and that Sir John Wentworth died Intestate within the Province of York, the Defendant John Wentworth being his younger Son unpreferred, became Entitled to a third part of his Estate, equally with his Widow, by the Custom of that Province, and by force of the said Act, for settling Intestate Estates, Thomas and John became Entitled with her to the other third part. The Defendants farther insist, That the said Earl is not, nor can be Entitled to any share of the said Thomas Wentworths Personal Estate; for that the Act of Parliament is only Authoritative and directive to the Ordinary and Administrator, and there are no vesting words therein, whereby to Entitle the Lady Katherine to a share of the Estate, and that she dying before any distribution, and within the 12 Months, allowed to that purpose, her share fell among her Surviving Brothers and Sisters, and however, if she was Entitled to any part, it could only be to a half-share, she being but of the half-blood to the deceased, and that so in the Course of the Civil Law. But the Plaintiffs insisted, The said Act explained. That though the Act of Parliament be only Authoritative and directive to the Judge, and yet such Authority and direction in an Act of Parliament, doth by Judgement and Implication of Law, vest an Interest in the Wife, Children and Kindred, for whose benefit the Act was made, as much as if it had been a bequest of residuum bonorum, for that the Act appoints all Ordinaries whatsoever, on granting any Administration to take the Bond prescribed thereby, one Clause of the Condition whereof is, to pay the surplus that shall be found due on such Administration, account to such Person or Persons, as the Judge by his Decree or Sentence to that Act shall limit and appoint, and then appoints the Ordinaries and Judges repectively, to order and make just and equal distribution of such surplus amongst the Wife, Children or next of Kin, according to the Rules and Limitations therein, and the same to Decree and settle, (which is the very Title of that Act) and that tho' there be Twelve months' time given for distribution, yet that is only with respect to Creditors, and no way hinders the vesting the surplus in such persons, as are appointed to have it immediately upon the trusties death, any more than a Legacy to be paid in futuro, and that it is generally a much longer time before an Intestates Estate can be got in, and the surplus known, and if the Executors or Administrators of persons dying, in the mean time shall lose their shares, it will elude the intent of the Act of Parliament, which was made for the benefit of the Wife and Children, and Kindred generally: And it will lie much in the power of an Administrator, by retarding his Account, to prevent another of his share; nay it will be mischevous to the Administrator, and those who shall claim distribution, for that if no Interest be vested in any before an actual distribution, by Decree or Sentence, than no distribution can be by Agreement or Consent of the Parties; nor let the occasions or necessities of any claiming distribution be never so great, can any Administrator satisfy the payment of any part of the Estate, till such Sentence or Decree made, which the Law makes could never intent? and if no Interest be vested by that Act, then hath this Court no Jurisdiction to intermeddle therewith; for that the Act only directs the Ecclesiastical Judge, Distributions according to the Act for settling Intestates Estates, are made in Chancery, as well as in the Ecclesiastical Courts. to make a Decree or Sentence for distribution, but the same vesting an Interest, and there being no Negative Words, that a distribution shall be sued for there and elsewhere, several distributions have been made in this Court, as well in the Lord Chancellor Finch his time, and the Lord Keeper North's time as since, and that the same is looked upon as a Point settled, and that it is the constant course of the Ecclesiastical Courts, to Decree the shares of any persons dying, before distribution to the Executors or Administrators of such persons so dying, and not to the Surviving person claiming distribution; and this Act was intended as the Will of every Intestate, and the Wife, Children and Kindred respectively, to be as well intitutled, as if the Intestate had made a Will, and so Bequeathed the same amongst them, and for the half Blood and whole Blood, the same hath made no distribution between them, but appointed the distribution to be equal, and that for the moneys alleged to be invested in Lands, such Purchases do not alter the nature of the Case, for that Thomas being a Minor, could not give Authority or Consent for it; and he might have descended to it when at Age, and dying in Minority the same still remains, part of his personal Estate, and the Land is but in the nature of a Mortgage, or additional Security for it. This Court declared, they saw no cause or colour to Decree any share for the Desendant Dame Dorothy, and conceives her no way entitled to any, but as to the Plaintiff the Lord Winchelsey. This Court declared they were fully satisfied, that the said Act of Parliament doth immediately upon the death of an Intestate, If any of the next Kindid before distribution, that share shall go to her, or his Executors or Administrators, and not to the Survivor, next of Kindred to the first Intestate. and before any actual distribution made; vest an Interest in the respective persons appointed to have distribution of the surplus of his Estate, as much as if it had been Bequeathed by Will, and that if any one of them die before distribution, tho' within the year, yet the part or share of such person so dying, aught to go over to the Executors or Administrators of such party so dying, and not to the Survivor, or next of Kindred to the first Intestate, and that the Lady Katherine was at her death well entitled, to a share of her Brother Thomas Wentworths Estate, as an Interest thereby vested in her, notwithstanding she died within a year after the Intestate, and before any distribution made, and that the Lord Winchelsey as her Administrator is now well entitled thereto, and decreed a distribution, and the Plaintiff the Lord Winchelsey shall have the Lady Katherine's share, and proportion of the said Thomas Wentworths Estate accordingly, and the Plaintiff the Lady Elizabeth, shall have a like share thereof with the Defendant Lister, and John Wentworth. 2 Jac. 2. so. 315. The question being, Whether the respective shares of the Plaintiff and Defendant Lister, (the said Lady Katherine and Elizabeth, and the Defendant Lister being only of the half Blood to the Intestate;) and whether the Money be vested in Lands, or the Lands themselves should be accounted part of the personal Estate of the said Thomas Wentworth or not? His Lordship ordered a Case to be made as to those two points. The Case being, (viz) That the said Thomas Wentworth died an Infant and unmarried, leaving such Brother of the whole Blood, and such Brother and Sisters of the half Blood as aforesaid, who were his next of Kindred in equal degree, and that upon his death a real Estate of near 2500 l. per Annum, descended to the Defendant John Wentworth, his Brother and Heir, and that above 3000 l. of the profits of that Estate, received in the Intestates life time by Dame Dorothy Norcliff, and the said trusties which belonged to him and his proper moneys, were by them during his Non age, and without any direction or power in their Trust, but of their own Heads laid out in Purchases in Fee, and Conveyances in their Names, but in Trust for the said Intestates and his Heirs, with this express Clause in the said Conveyances, (viz.) in case-he at his full Age would accept the same at the Rate purchased, the purchase being made with his Money, and for his advantage. This Court as to the said two Points, Half Blood to have an equal share with the whole Blood. being assisted with Judges, declared, That the Plaintiff and the Defendant Lister, ought each of them, to have an equal share with the Defendant John Wentworth, of the surplus of the personal Estate of the said Intestate, and the distribution thereof aught to be made among them share and share alike, and decreed accordingly. And as to the other Point declared, trusties lay out the moneys of an Infant in Lands in Fee. This shall be accounted part of his personal Estate, he dying a Minor. That the moneys laid out in the said Purchases ought to be taken and accounted for as part of the said personal Estate, and distributed with the rest, and decreed a Sale of the said purchased premises, and distribution thereof to be made as aforesaid. Dom' Middleton contra Middleton, 1 Jac. 2. fo. 793. THat Sir Thomas Middleton upon his Marriage with the Plaintiff Dame Charlotta Middleton, Devise. settled a great part of his Estate in Com' Flint, and other Countries for her Jointure, being seized in Fee of Lands in several Countries (viz.) Flint, Denbigh, and Merioneth, and settled all his Estate on his first and other Sons on her Body in Tail Male, and charged the same with several Terms of years, for raising Portions for Daughters (viz.) If one Daughter and no Issue male, 8000 l. and out of his personal Estate, intending to make an addition to the Portion of the Plaintiff Charlotta his only Child, and to increase the Plaintiff Dame Charlotta's Fortune and Jointure, made his Will in 1678. and thereby reciting that whereas upon his Marriage-Settlement it was provided, That if he should have a Daughter she was to have 6000 l. Portion, as his Will was, and he gave to his only Daughter Charlotta, in case she should have no Son living at his death, 10000 l. more as an addition to her Portion, to make her up the same 16000 l. and for raising of the said portions, and payment of his debts and Legacies, he devised all his said Lands (except his Lands limited for his Wife's Jointure for her life) unto trusties and their Heirs in Trust, to raise out of the Rents and profits of the said premises, the several Sums mentioned for his Daughter's portion, and the sums of Money thereafter mentioned, and Willed, That till one half of the said Daughter's portion should be raised, his Daughter Charlotta to have 100 l. per Annum for the first four years, and afterwards 200 l. per Annum till her moiety of her portion should be raised; and after payment of the said portions, maintenance, debts and legacies he devised the said trusties to stand seized of all the said premises (except before excepted) to the use of the Heirs males of his Body, with a Remainder to the Defendant Sir Richard Middleton his Brother for life, without impeachment of Waste, Remainder to his first Son and Heirs males of his Body, with other Remainder to the Defendants Thomas, Richard and Charles Middleton, Remainder to the right Heirs of the said Thomas, and he bequeathed to his said Daughter Charlotta the Plaintiff his Diamond-pendants, which his Wife wore, and bequeathed to his Wife Dame Charlotta, after his death, one Annuity of 200 l. per Annum for her life, to be raised out of the profits of the said premises, and bequeathed the great Silver Candlesticks to go according to his Grandmothers Will, to the Heirs of his Family, with his Estate as an Heir Loom, and bequeathed the use of all his Goods, Stock and Householdstuff to his Wife the Plaintiff Dame Charlotta, for so long as she should live at Chirke Castle, and from thence he left the same to his eldest Son and Heirs, or such as should be Heir male of his Family, according to the limitations aforesaid; and his further Will was, that his said Wife should have such proportion of the Goods, Householdstuff and Stock, for the stocking and furnishing of Cardigan-House and Demean, being part of her Jointure, as should be judged fit by her trusties, that she might be supplied with Goods and Stock requisite for her House; and left to whomsoever should be his Heir all his Stable of Horses, and made the Plaintiff Dame Charlotta Executrix, and died in 1683. leaving the Plaintiff Charlotta his Daughter and Heir. The Defendant Sir Richard Middleton insisted, That Sir Thomas Middleton his Brother had, in Consideration of 184 l. to him paid in 1680. conveyed to the said Defendant and his Heirs two Messages, being 11 l. 10 s. per Annum in Com' Denbigh, and taking notice that the same was comprised in his Wife's Jointure, declared he would leave or give his Wife by Will, or otherwise, a sufficient compensation for the same, so that he should not be Troubled. And the Defendant insists. That the 200 l. per Annum given her by the Will, was intended to be as a Compensation; and insists, That Sir Thomas intended his Daughter more than 16000 l. and that such part of the personal Estate as was not specifically devised to his Executrix, which was all he intended her, aught to be applied towards satisfaction of the Testators debts and legacies, and the Plaintiffs Portion, and the rather, for that by the true Construction of the Will the real Estate is subjected only supplementarily, Real Estate subjected to pay Debts only supplementarily. and that part of the personal Estate intended to the Executrix is specifically devised to her, the Devise of the Goods and Stock were only intended, in case the Plaintiff Dame Charlotta should live on her Jointure; but she not residing on her Jointure, he insists, she is not Entitled to the said Stock and Goods, and as to all other the Goods and Stock, and Furniture, the Defendant was well Entitled by the Will, as Heir male of the Family, according to the limitation of the Will. The Plaintiff insists, That the personal Estate not being devised for payment of of debts, and provision being made for payment thereof out of the real Estate, doth submit to the Court, Whether the personal Estate ought to be applied for debts and legacies, the real Estate being sufficient to do the same; and whether, if she be compelled to pay the debrs and legacies therewith, she shall not be reimbursed out of the real Estate. The Questions arising upon the said Will, and now debated, are (viz. First, Whether the personal Estate, not specifically devised, aught to come in Aid of the real Estate, and be subject to the debts and legacies chargeable thereon? Secondly, Whether the Plaintiff Charlotta ought to have any greater Portion by the Settlement and Will than 16000 l. and whether she ought to have the several yearly Maintenances given by the said Deed and Will, and to what time and times, and whether the Stable of Horses did not belong unto her, as being given to whomsoever shall be the Testator's Heir, she being the Testator's Heir? Thirdly, Whether the Plaintiff, the Lady Charlotta Middleton ought not, besides her Jointure, to have her Annuity of 200 l. per Annum, and to have Furniture and Stock for her Jointure, House and Lands, and to have the Jewels and Chamber plate, and Furniture of her Chamber as her Paraphanalia. This Court declared, it was intended the Daughter should have only 16000 l. Portion, and that such of the Goods and Stock, and Householdstuff at Chirke Castle, which were devised to the Defendant, Sir Richard Middleton, did belong, and aught to be enjoyed by the said Sir Richard, Personal Estate not specifically devised to be applied to payment of debts, and the Real Estate not subjected thereto. and that the personal Estate not specifically devised away, and which is not to be set out to the Plaintiff, the Lady Middleton, pursuant to the said Will, aught to be applied, and paid towards payment of the Debts and Legacies, and the Portion of the Daughter; and that the Plaintiff the Lady Middleton (besides her Jointure, which she ought to enjoy free from Encumbrances) ought to have and enjoy the said Annuity of 200 l. per Annum, Annuity in Augmentation of a Jointure. and Arrears given and devised to her by the said Testator, and that she ought to have her Paraphanalia, and proportion of the Goods, Household stuff and Stock, for furnishing and stocking her Joynture-house, and Demeasns to be set out by the trusties, according to the Will; and the Daughter to have both the Maintenances by Will and Deed of Settlement, and the Stable of Horses, and all things specifically devised to her by the Will, and decreed accordingly. Whitmore contra Weld, 1 Jac. 2. fo. 106. THat William Whitmore deceased in 1675. by his Will, devised to the Earl of Craven, for the use of William Whitmore his Son, the Plaintiff Frances Whitmores' late Husband, all the surplusage of his personal Estate, and made his Son William Whitmore Executor, and the said Earl of Craven his Executor, during the Minority of his said Son, and the said William the Father died, and left a personal Estate of 40000 l. that William the Son at his Father's death, being but of the Age of 13 years, the said Earl proved his Father's Will, and possessed all the personal Estate, and the said William the Son, having attained the Age of 18 years, not having proved the said Will, and being Entitled to the surplus of the said perfonal Estate in 1684. made his Will, and thereby devised to the Plaintiff Frances, all his personal Estate, and whatsoever lay in his power to give, and made her his Executrix, and died in 1684. and the Plaintiff Frances being of the Age of 18 years, proved his Will, and is thereby Entitled to the personal Estate of William the Father. But the Defendants, one of them being Sister of William the Father, and the other the Children and Grandchilds of the Sisters of the said William Whitmore the Father, pretend the surplus of the personal Estate of William the Father, belongs to them. The said William Whitmore the Father's Will is in these words, (viz.) The Surplus of my Personal Estate, my Debts, Legacies and Funeral paid and satisfied, I give to the Right Honourable William Earl of Craven, for the use of my only Son William Whitmore, and his Heirs lawfully descended from his Body, and for the use of the Issue Male, and Issue Female, descended from the Bodies of my Sisters, Elizabeth Weld deceased, Margaret Kemesh, and Ann Robinson, in Case that my only Son William Whitmore should decease in his Minority, without having Issue lawfully descended from his Body: I Nominate and appoint my only Son William Whitmore, Executor of my last Will and Testament. I nominate and appoint the Earl of Craven during the Minority of my only Son William Whitmore, Executor of my last Will and Testament. The Defendant Dame Ann Robinson insists, she is the Surviving Sister of William Whitmore the elder, and so is Entitled to the Administration of William the Elder, unadministred by William the younger, and the Defendant Sir John Robinson, and others the younger Children of the said Dame Ann Robinson insist, That they are instituted (by William the Father's Will) to an equal share of the surplus of the personal Estate of William the Elder, the rather, for that William the Elder, made a Settlement of his Real Estate on trusties, 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 joint 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 Sister's 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 Father's 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 Entitled 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 Precedents 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 entitled 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 Master's Report, were not only more scandalous, but also Malicious; and that it appearing that Ryley the Defendants Solicitor, had put Mr. Lynn a Councillor's 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 merely 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. Paul's, 1 Jac. 2. fo. 154. THis Case is upon a Demurrer, Bill to enforce the Lord of a Manor to receive a Petition in nature of a Writ of false Judgement to Reverse a common Recovery, demurred to, and the demurrer allowed. the Plaintiffs Bill is to enforce the Defendant the Lord of the Manor of Barnes in Surrey, to receive the Plaintiffs Petition or Bill, in the Nature of a Writ of false Judgement to Reverse a Common Recovery, suffered of some Copyhold Lands in the Manor by Susan R●gle Widow, which the Defendant R●gle holds under the said Recovery, the Bill setting forth, that Katherine Ferrer 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 Ferrer, her Eldest Son, and the said Susan his then Wife, and Heirs Males of the Body of William, Remainder in Tail to Thomas Ferrer the Plaintiffs Father, second Son of Katherine, and the Heirs of his Body; Edward being obliged by Articles, upon Susan's Marriage with his Son William, to settle Lands of that value on Susan, for her Jointure: That Katherine on that Trust in 1642. surrendered the premises 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 surrendered 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 herself, the said Susan for life, the Remainder to William Ferrer, 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 premises would have come to the Plaintiff, being the youngest Daughter to her Father, as Cozen and Heir both of William Ferrer the Father, and William the Son, the premises being Burrough-English, and so the Plaintiff was well Entitled to prosecute the Lord of the Manor in the Nature of a Writ of False Judgement, 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 Ferrer, the premises are descended 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 Manor 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 errors 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 precedents of such a Bill as this is, he thought not fit to admit of this, nor to introduce so dangerous a precedent, whereby a multitude of Settlements and Estates, depending on Common Recoveries, suffered in Copyhold Courts for valuable Considerations, would be avoided and defeated through the negligence or unskilfulness of Clerks, and therefore conceived the said Common Recovery ought not to be shaken; yet nevertheless the Case being new and great, referred it to the Opinion and Determination of the Lord Chancellor. His Lordship held the Demurrer good, and Order to stand. Skinner contra Kilby, 2 Jac. 2. fo. 72. THe Bill is to have the benefit of a Bequest by the Will of Robert Kilby. The Will being (viz.) Will. If my Son Richard Kilby should behave himself towardly, and undertake the payment of my debts and Legacies, than 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, than 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 Father's debts and Legacies, the said Jane undertok and paid the same, being entitled by the said Will, and by her Will Bequeathed to the said Defendant the premises. 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 entitled to the premises, 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 Manor insisted, he never heard of any admittance in that Manor at such an Age. Cloberry contra Lymonds, 2 Jac. 2. fo. 1069. Land's extended in 1 Car. 1. and held in Extent, and a Bill exhibited to redeem, and being not redeemed, the Bill dismissed 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 premises 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 Solicitors 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 aught to be suppressed, for that Mr. Samuel Underwood, who was Clerk to Mr. Edward Gibbon, Solicitor for the Plaintiff in this Cause, did write as Clerk in Execution of the said Commission under the said Commissioners, and the said Underwood confessed the same and solicited the Matter; for which Reasons the Defendants Commissioners refused to join 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 Solicit. This Court was well satisfied, that the said Depositions were (for the Reason's 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 seized in Fee of Lands, Will. and possessed 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, etc. 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 Niece 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 Grandchilds, 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 Grandchilds 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 Grandchilds, 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, aught 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 Grandchilds, 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 Judgements and Bonds decreed, Creditors on Judgement, 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 subsistence, and the Plaintiff borrowed of the Defendant 1000 l. in 1675, and entered into Judgement of 5000 l. Defezanced for the payment of 2500 l. after the Plaintiffs Fathers death, which happened in 1679. The Defendant insists, That he lent the Plaintiff 1000 l for which the Plaintiff gave Bond, and Warrant of Attorney to confess Judgement to the Defendant of 5000 l. which was Defezanced, that in case the Plaintiff should outlive his Father, and in one Month after his Father's death pay the Defendant 2500 l. and if the Plaintiff should Marry in his Father's life time, than he should from such Marriage during his Father's life pay the Defendant Interest for the 2500 l. And the Defendant insists, That if the said Plaintiff died before his Father, the Defendant had lost all his Money: 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 relieve 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 Judgement, and that the late Lord Chancellor and Lord Keeper, had frequently relieved against such fraudulent and corrupt bargains, made by Heirs in their Father's life time, and that there was not any real difference where the contract is for Money, 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 Father's 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 Money 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 tendered 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 Nonresidence 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 aught to be enjoined 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 moneys laid out in Lands for a Jointure to such uses, the Remainder to the use of the right Heirs of the Husband. The Money is not laid out, the Husband dies without Issue; the Money decreed to the Plaintiff, being right Heir. and also Executor of the said Benjamin; and the said John Knight being seized 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 Jointure, 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 settled upon Benjamin and Fra●●●s for life, and for a Jointure 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 settling a future Maintenance upon Frances, in case she survived, and upon the Issue between them. If therefore Sir Jonathan, his Heirs, Executors, etc. should pay as a Marriage portion with the said Frances into the hands of two Feoffees, to be jointly 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, than 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 John's debts and legacies, and to oblige his real and personal Estate for performance of the Marriage Agreement, did by Deed in 1681. convey unto trusties all his Plantations, Houses, etc. upon Trust to himself for life, and after his death to satisfy the said Bond of 3000 l. for payment of 1500 l. to Sir Jonathan, for the future Maintenace of the said Frances, according to the said Marriage Agreement, and in full of Dower, and to do all things according as he by his last Will should direct: That the said Benjamin by Will, 10 Dec. 1681. therein reciting the Condition of the said Bond, gave his Wife 1000 l. unpaid of Sir Jonathans' Bond, and his trusties to pay 1500 l. with 500 l. he had received of Sir Jonathan in part of his Wife's portion, which Sums made in all 3000 l. and was to be laid out in a purchase of Lands, to be settled to the uses aforesaid, and made Hulkot and Fowler Executors in Trust, to manage for the Plaintiff, whom he made his sole Executor, who afterwards took upon him the Execution of the said Will, and claims the said 3000 l. to be laid out in Lands, to be settled according to the said Marriage Agreement, which was in case Benjamin died without Issue, the said Lands so to be settled were to come to Benjamins' right Heirs, and the Plaintiff is Instituted as Heir and Executor of Benjamin. The Defendant Pierce confesses the Marriage Agreement and Bonds, as in the Bill, and that the Marriage between the said Henry and Frances took effect, and the said Benjamin is since dead, and that since his death the said Defendant Pierce hath married the said Frances, and is thereby entitled to the benefit of the Bond entered into by the said Benjamin to Sir Jonathan, and the moneys due thereon, and to the Third part of Benjamins' Lands. The Plaintiffs insist, That the said Frances dying without Issue, the Money in Sir Jonathan Atkyns his hands, ought now to be paid to the Plaintiff. This Court (upon reading the said Bond and Condition, and the Deed and Will of Benjamin) declared, That by the Marriage Agreement and Condition of the Bond, it was very clear that the said Frances having no Issue by the said Benjamin could only have an Estate for life, or the Interest of the Money for her Maintenance, and that the Plaintiff is well entitled to have the said 3000 l. paying the Defendant Pierce Interest for the 1500 l. which the said Benjamin, the Plaintiffs Testator, was bound to lay out, and decreed accordingly. Kettle by contra Lamb, 2 Jac. 2. fo. 1064. THat on a Treaty of Marriage between Richard Kettleby the Plaintiffs younger Brother, moneys to be laid out in Lands for a Jointure by Marriage Articles. and the Defendant Ann, now Wife of the Defendant Atwood, Articles were entered into and made between Thomas Laud, Father of the Defendant Ann of the first part, and the said Richard Kettleby of the second part, and the Plaintiff and others trusties of the third part, whereby the said Lamb Covenanted to pay 1500 l. to the said trusties as a Marriage-portion with the Defendant Ann his Daughter, and the said Richard Kettleby Covenanted to pay 500 l. more, which being 2000 l. was agreed to be laid out in the purchase of Lands, to be settled upon the said Richard for life, and after on the said trusties and their Heirs during the life of Richard, to preserve the contingent Remainders, and after to the use of the said Ann his Wife during her life, for her Jointure, and after to their first, and so to their seventh Son of their two Bodies and their Heirs successively, and for want of such Issue to the Daughters, and for want of such Issue to the right Heirs of the said Richard Kettleby for ever; and that by the said Articles it was agreed, that before such purchase could be made the said trusties should place out at Interest the said 2000 l. and from time to time pay over the Interest to such person to whom the Lands are intended to be purchased was limited, as if the same had been purchased and settled accordingly, and there was a Proviso in the Articles, That if the said Richard died before a purchase should be made, leaving no Issue of his Body on the Body of the said Ann his intended Wife, and Ann survived him, that in that case the 2000 l. or so much thereof as was not laid out in Lands, should either be laid out in the purchase of Lands to be settled upon the said Ann for life, with Remainder to the right Heirs of Richard, or else Three parts thereof, the whole to be divided into Four parts of such Moneys as should be paid to the said Ann her Executors, etc. at her Election, so as she made such Election within six Months after the said Richard's death, otherwise at the Election of Richard's right Heir: That afterwards the Marriage took effect, and 1500 l. of the 2000 l. placed with the said Lamb by the trusties, who paid the Interest thereof to the said Richard Kettleby during his life, and before the Money was laid out in a purchase Richard died Intestete, leaving Issue one Daughter named Ann, who likewise died in a Month after the said Richard, whereupon the Right of the 2000 l. or Lands to be purchased therewith after the death of Ann the Wife accrued to the Plaintiff Edward Kettleby, as right Heir of the said Richard Kettleby; so to have the 2000 l. invested in Lands, and settled according to the said Articles, for the benefit of the Plaintiff, is the Plaintiffs Suit. The Defendant Atwood, who hath married the said Ann, the Relict of the said Richard Kettleby insists, That the said Ann his Wife is Administratrix to Richard her first Husband and the said Ann her Daughter, and thereby well entitled to the personal Estate, and that according to the Proviso in the said Articles, the said Ann had made her Election to have 1500 l. of the 2000 l. to be at her own disposing, and that she was well entitled to the other 500 l. as Administratrix to Richard and Ann her said Daughter, and that the Marriage Articles being merely for the benefit of the said Defendant Ann Atwood and her Issue; and the Plaintiff no way entitled under the Consideration thereof, there was no ground in Equity to compel a performance, so as to give the Plaintiff the Defendants portion. This Case being heard by the Lord Keeper North, he declared, That the 2000 l. did belong to the Administratrix of the said Richard Kettleby, and ought not to be settled upon his Heir, and dismissed the Plaintiffs Bill, which dismission being signed and enrolled, the Plaintiff brought his Bill of Review against the said Defendants, and for Error Assigned, that whereas it was declared by the said Lord North, that the 2000 l. did belong to the Administratrix of Richard Kettleby, and not to be settled upon his Heir: That the same aught to be Decreed to be laid out in Land, to be settled upon the said Ann only for life, Remainder to the Plaintiff as Right Heir of Richard, and his Right Heirs for ever, according to the uses of the Articles. To which the Defendant pleaded and demurred, insisting, the same was obtained on good Grounds and Reasons, and farther insisted, that since the said Dismission, and before the Bill of Review, the said Lamb had paid the said 1500 l. with other money, unto the Defendant Atwood, in Right of the said Ann his Wife, who was Administratrix to Richard Kettleby, and Ann the Daughter, and that in consideration thereof, the said Defendant Atwood had made a Settlement equivalent thereto, for a Jointure 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 Judgement 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 Wife's 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 expressly 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 Ann's 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 enlarge 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 settled according to the intent of the Articles. And as for the Defendants the trusties, trusties indemnified. in regard they relied upon the said dismission, Signed and Enrolled for their indemnity, in paying the said 2000 l. to the said Atwood at his Wife, they are indemnified 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 Mother's decease, to have all the Interest during her life, and if the said Ann Smith died without Issue of her Body, than the principal of the Residue, should be equally divided between the Defendants, Marry 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. come Dorsett contra paul, 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 tripartite, Dated 28th of June, 31 Car. 2. made between the Defendant Mr. paul 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. paul 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 Manor Lands and Premises, or in any other Manors or Lands of the Countess in England, and of all the Rents and Profits thereof, so as Mr. paul his Executors. Administrators, and Assigns, were not to intermeddle nor have any Benefit or Advantage thereby in Law or Equity; but should join with the Countess from time to time, in the disposing thereof, as she should appoint, and the Defendant Mr. paul thereby Covenanted, that if the Marriage took effect, Mr. paul his Execuecutors or Administrators, without the consent of the Countess in writing, would not encumber the premises, or receive the Rents and Profits to their own use; but from time to time would upon request, Authorise such persons after receiving the same for the Countess' separate use, as she should think fit, so as he might have nothing to do therewith, either in Law or Equity, and that upon request, he would make reasonable Leases of the premises for such Considerations and Terms, and under such Covenants, as the Countess should think fit, and gave such Acquittances for the Rents, as should be requisite and convenient, and at the Charges of the Countess, and her said trusties, should Commence and Prosecute any Suit necessary for the Recovery of any part of her Estates, and in defence of her Right thereto, and that the said Countess might dispose of the premises, and receive the profits according to the true intent and meaning of the said Indenture Tripartite, without the Interruption of Mr. paul his Executors, or any claiming under him or them. And by another Indenture Tripartite, 28 June 31 Car. 2. between the Countess of the first part, Sir Thomas Littleton and Mr. Brett of the second part, and Mr. paul of the third part, reciting, that where as there was a Marriage to be had between Mr. paul and the Countess, and that by agreement, she was to have and dispose to her own use, and at her pleasure, all her Jewels, Plate, Goods and Chattels, both Real and Personal, and the benefit thereof, so as Mr. paul his Executors or Administrators, were not to intermeddle therewith, the Countess by Mr. Paul's consent did make a Bargain and Sale to the said Littleton and Brett, of all her Jewels, Plate, Householdstuff, Money, Goods and Chattels, Real and Personal upon Trust, that they should dispose of the same, and the proceed thereof to such persons, and such uses as the Countess by any writing, or by her Will should appoint, so as Mr. paul might not have any power or interest in Law or Equity, to Sell, Charge, or Dispose of the same, or any part thereof, and for want of such appointment upon Trust, to deliver the same, or such part thereof as should be undisposed of by the said Countess to her Executors or Administrators, and Mr. paul by the last Deed covenanted not hinder the same, and also that they should be free from all debts and engagements of the said paul; That Mr. paul and the Countess intermarried, and afterwards the said Countess according to the said agreement, and power as long as she lived disposed of all the Rents, and profits of her real Estate, and without Powle's intermeddling, That aftewards the said trusties dying, Mr. paul by Deed with the said Countess, transferrd the said Trust to other trusties, and also covenanted not to intermeddle, but the said premises to be solely in the power of the said Countess: And it was agreed, that the receipts of the Countess should be sufficient for the premises, or the preceded thereof, notwithstanding tthe Coverture: That the Countess by herself and the trusties received the rents and profits of the premises, and disposed thereof without Mr. paul: That the said Countess by Deed of appointment in 1682, and by her Will in 1684, whereof she made the Plaintiff the Earl of Dorset her Son Executor, to whom she (after some Bequests and appointments to other persons,) Bequeathed and appointed all the rest of her personal Estate, and also gave to him all her moneys and Rents, and all Arrears of Rents in her Steward and Tenants Hands, to all which the Plaintiff the Earl (the said Countess being dead) is entitled. The Defendant paul insists, that as to the Rents and Profits of the Real Estate, he claims the same, and that he was so far from not intermeddling therewith, that he would not permit the Stewards to receive the Rents without Warrant from himself, and that he passed all the Accounts thereaf, and rectified them after the Countess had signed them. This Court declared, Feme Coverts disposing of her personal Estate, according to Agreement at Marriage, decreed good: But not as to the Rents and Profits of her real Estate. There was an absolute Power in the said Countess of disposing all her personal Estate that she was possessed of at the time of her Marriage, and the proceed thereof, and that she had pursuant to such Power well disposed of the same, and decreed the Defendant powel to confirm the said Will and Appointment: But as touching the rent and profits of the real Estate, upon Consideration of several Clauses of the Deed relating to the said Estate, and different Penning of the same from the other Deeds that concerned the personal Estate, This Court declared, the said Countess had no power to dispose of the same, and all the Arrears thereof to be accounted for to the said Mr. paul. THE CASE OF The Duke of Albemarle; With the Arguments thereon. come Montague & al' contra come Bath & al', 4 W. & M. fo. 90. THe Plaintiffs, Revocation. Will. after a Trial at Law directed out of this Court, wherein the Point in Issue was, Whether a Settlement was well made and executed, and a Verdict for the Defendant, that it was good and valid in Law? They come into this Court to seek Relief upon the Equity reserved against the said voluntary Settlement, wherein was a power of Revocation by virtue of a Will afterwards made, the Question being, Whether in Equity the said Will was a Revocation of the Deed, tho' not strictly pursued? The Bill was: That Christopher, Bill. late Duke of Albemarle being seized of several Manors, Lands and Tenements in several Counties having married the Duke of Newcastles Daughter, and being possessed of a considerable personal Estate, frequently declared, That he would make ample provision for the Duchess (who then had but 2000 l. per Annum Annuity settled on her for a Jointure by George Duke of Albemarle, (upon her Marriage with Duke Christopher) for the support of her Dignity in case she survived him, and that if he should have no Issue Male, he would leave to her for her life at least 8000 l. per Annum out of his real Estate, and in pursuance of such his Resolutions, and likewise for the settling of the Remainder of his Lands upon his dying without Issue on Colonel Monk and others, made and published his last Will in writing, dated 1 July 1687. Whereby, He gives to his Wife Coaches, Jewels, Plate, etc. and for advancing her living and support, if he have no Issue Male, and in full of her 2000 l. per Annum Rent-charge and Dower, he gives her his Lands in Essex, Stafford, Lancaster, York, Lincoln, Surrey, Devon, Hertford, Middlesex, Berks and Southampton, for her life, and if she accept the same, that she shall release the 2000 l. per Annum within Three years after his death, or else that Devise to be void. The Remainder of his Lands in Berks to Sir Walter Clergyes pur vie, and after in Tail Male, Remainder to his Cousin Henry Monk in Tail Male, Remainder to his own Right Heirs. To Bevile Greenvile (Son to the Earl of Bath) his Freehold Lands in Surrey and Southampton for life, and then in Tail Male, Remainder to his Cousin Tho. Monck pur vie, and then in Tail Male, Remainder to his Cousin Henry Monck in Tail Male, Remainder to his own right Heirs. His Lands in Devon to Colonel Thomas Monck. for life, and then in Tail Male, Remainder to his Cousin Henry Monck in Tail Male, remainder to his own right Heirs. All his Lands in Ireland to his Cousin Henry Monck in Tail Male, with Remainder to his own right Heirs. Provided, That if he have any Issue, all devises of any Sums of Money (except for his Funeral, his Father's Monument, Almshouses and Legacies to his Executors) shall be void, and if he leave any Issue, the premises devised to Sir Walter Clergyes, Mr. Greenvile, Thomas and Henry Monck. and their Issue shall go to his Issue, (viz.) to his Sons successively in Tail Male, if Daughters, in Tail with Remainders to the said persons, as before Provided, If he leave Issue Male, he deviseth to his Wife, as an Additional Jointure to her Rend charge, Lands in Devon and Essex for her life, and makes the Duchess during her life, and in case of her death, the Duchess of Newcastle Guardians of his Children he shall have. And in case it happen, that Colonel Thomas Monck, or any Heirs males of his Body shall live to come and be in possession of the premises devised to him, he desires they will live at Potheridge, the Ancient Seat of the Family, and desires his Majesty to grant them the Title of Baron Monck of Potheridge, that it may remain in the Family in Memory of his Father and himself, and his Service his Father had the Honour to do the Crown in the Restauration, and makes the Duke of Newcastle, Lord Cheney, Jarvis Peirpoint, Sir Walter Clergyes, Sir Thomas Stringer, Henry Pollexfen Esq; and others, Executors. That the Duke gave direction to Henry Pollexfen Esq; to make this Will, and when drawn, was fully approved of by the Duke upon mature deliberation: Which Will being in Three parts he carefully locked up, and after leaving Two parts of his Will to two persons and kept the Third, he went to Jamaica. That the Duke, when in Jamaica, heard Colonel Thomas Monck was dead in Holland, sent to the Earl of , Sir Tho. Siringer and others, to send over for Chripher Monck, the Colonel's eldest Son, to Educate him so as to fit him to bear the Character of one to whom he intended the greatest part of his Estate, if he died without Issue. In September 1688. the Duke sickened in Jamaica, and there again published his said Will, and declared that if he died, the Box and Will should be delivered to the Duchess, and died in October following. That the Duchess at her Return from Jamaica found, that the Earl of set up another Will, dated 3. Aug. 1675. whereby the Remainder of the greatest part of the Estate was given to the Earl of and his Heirs; and likewise a Settlement by way of Lease and Release, in corroboration of that Will, by which he seeks to avoid and frustrate the Will of 1687. That the Duke sent to the Earl of for the Will of 1675. (if any such) to have it delivered to him, that he might make another Will: That the Will of 1687. was Sealed at Sir Robert Claytons' the same day after other Writings had been by him sealed to the Lord Chancellor Jeffreys of some Lands sold to him; and that the Duchess, nor any of her Relations ever knew or heard of the said Deeds, till after the Duke's death, nor known to Sir Thomas Stringer, who was the Duke's standing Council, and the Plaintiffs farther insist, if there were such Deed, yet it ought not to avoid or impeach the said last Will, though the power of Revoking the same, was not literally pursued, yet the same in Equity, aught to be taken as a Revocation, and the rather, for that at the making of the Will, the Duke remained owner of the Estate, and he looked upon himself so to be, for that he had since the said pretended Deeds, sold some part of the Estate to Chancellor Jefferies, without any Revocation, and the Earl of Bath paid no valuable Consideration, and that he ought to be protected in the enjoyment of the personal Estate, and the Specific Legacies devised to her, in the Will of 1687. tho' the Will of 75. (if any such be) was intended by the Duke, principally to hinder the descent to his next Heir; and the Deeds (if such there be) were for the same purpose, and that tho' the Deed recites to confirm the last Will of 75. yet does in several places control it, and alter it, whereby and by the extraordinary strange and unprecedented Declarations, Prouisoes and Covenants therein, the Plaintiff believes, the Deeds were never executed by the Duke, or if so, that he was surprised therein, and pray Relief in the premises. To this the Defendant makes Answer, Answer. and sets forth the Will of 1675. whereby the greatest part of the whole Estate was given to the Earl and his Heirs, and sets forth the Considerations of his so doing, as Ancient Kindred, and Esteem between Duke George, and the Earl of Bath, and several Services and good Offices that he had done the Family, and likewise sets forth, that being well satisfied with such his disposition of his Estate, and finding that he had been often importuned to alter the same, and fearing lest the repeated Practices and Arts attempted against such his Disposition, might some time or other surprise him into a Compliance, Consulted with Sir William Jones and other his Council, how to Obviate such practices, and to settle his Estate in such manner, as that it might not be avoided, although for his ease, he should at any time seem to yield to the Solicitations of his near Relations, whereupon in Anno 1681. the Duke makes a Settlement, wherein he gins: That for the assuring of the Honour, Manors, etc. upon a Person of Honour, etc. and for the Corroborating and Confirming the said Will of 75. and to the end, that no pretended last Will should be set up by any Person whatsoever; and for the Natural Affection that he beareth to the Earl of Bath, etc. grants by Lease and Release, several Manors, Lands and Tenements, etc. some in Possession, and some in Remainder, upon the Earl of Bath in Fee, and so to Walter Clergies, etc. in which Deed there was this Proviso: Proviso. That if the Duke shall at any time during his life, be minded to make void the said Indenture, or any Estate therein contained, or to dispose of the said Honours, Manors and Lands in any other sort, or to any other Person or Persons, and his or their Heirs, or for any other purposes, and the same his Mind, Intent and purpose, should signify and declare in Writing, under his Hand and Seal in the presence of six Credible Witnesses, (three whereof to be Peers of this Realm) and should pay to his trusties, or any of them, the Sum of Six pence, with intent or purpose to frustrate or make void the said Indentures, That then and not otherwise, and immediately after such Signification, Declaration, and payment or tender of payment of 6 d. as aforesaid, the said Use and Uses, Estate and Estates, Trusts, Confidence, Intents and Purposes, and all and so much of the premises, whereof the Duke should make such Signification or Determination, should cease Determine, and be utterly void to all Intents, Construction and Purposes whatsoever, and that then, and from thenceforth, it should and might be lawful for Duke by such Writing, or any other Deed or Writing Subscribed, Sealed and Testified as aforesaid, to declare new or other Use or Uses, Trust or Trusts of all or so much of the premises, whereof the Duke should make any such Signification or Declaration, or otherwise to dispose of the premises, or any part thereof at his Free Will and Pleasure, any thing in the Deed to the contrary notwithstanding. And for the further prevention of the mischief and Inconveniences that might attend any future or sudden Surreptitious Will, Covenant. which might at any time defeat his Recited Will (which he declares to have made upon Mature Deliberation) Covenants for himself, his Heirs, Executors and Administrators with the Duke of Newcastle, and (his trusties) that he would not Revoke, Annul or Discharge the said Will, or any the Legacies thereby devised, unless by some instrument Sealed and Executed in the presence of many, and such Witnesses, as are in the said Proviso specified, declared and described for Credible Witnesses within the said Proviso, according to the Intention, Literal Sense, and true meaning of the Duke expressed in the said Proviso. He denies the said Deed was obtained by Surprise; but that the Duke executed the same in the presence of many Credible Witnesses, and that the Duke left the Deed and Will in his keeping. And as to so much of the Bill, as requires the Defendant to give an account of what part of the said Duke's Personal Estate came to the Defendants Hands, he is Advised by the Rules of this Honourable Court, that he is not Compellable to Answer thereunto, for that it appears by the Plaintiffs Bill, that at the time of the Exhibiting thereof, the Plaintiffs were not entitled to make such demand, or to have such account, it thereby appearing of their own showing, that they have not proved the said Will of 87. but that the same was, and still is under Controversy undetermined in the Prerogative Court, whereof, or as to that part of the Bill he demurs. As to the Objection, That it was a Concealed Will and Deed, the Defendants insist, that it was done silently, but the Duke would have it kept Secret, that he might be free from Trouble and Importunity. And they insist, That as to the last Will of 85. That the Duke Advised with Council, to know whether a Will made after the Settlement, would avoid or impeach the Settlement, was answered, that it would not, and that Proviso must be strictly pursued, whereupon he was well satisfied, and that the said Deed ought to be supported, and not set aside in Equity, being made upon such Meritorious Consideration of Blood, Merit, etc. The Plaintiffs insist, That the said Deed (if any such) being a Voluntary Settlement only, that the Will of 87. is a good Revocation thereof, in a Court of Equity. So that the great Question was, if the said Deed (it being found to be valid at a Trial at Law) is Revoked by the said last Will, according to Equitable Intention or Construction. This Cause having been Debated and Argued several times by Learned Council, and afterwards by three Judges, (viz.) my Lord Chief Justice Holt, the Lord Chief Justice Treby, and Mr. Baron powel, it was agreed by them, that the Deed was a good Deed, well executed, and not Revoked by the Will of 1687. The Lord Chief Justice Treby's Argument in short was thus: In 1675. the Duke made his Will, and declares in respect that the Earl of was his Kinsman, and had done many Kindnesses to him and his Family, the Earl should have the greatest part of his Estate, and gives several Legacies to one Monk; and then he makes a Deed of Settlement in 1681. tho' the Limitations by the one and the other differ; but it is not made to revoke, but to confirm the Will. Both the Will of 1675. and Deed of 1681. do agree in giving the greatest part of the Estate to the Earl of , but the Proviso in the Deed makes the dispute; and then there is a Will of 1687. wherein a larger Estate is given to the Duchess and Colonel Monck, etc. and desires the Honour of Potheridge may be established on the Monks. The Plaintiffs Bill is to establish the Will of 1687. and set aside the Deed of 1681. and Will of 1675. And the Deed on the Hearing of the Cause was directed to be tried, and a Verdict for the Defendant, and the Plaintiff hath acquiesced under it, and so this Deed must be taken as a good Deed and Conveyance without any suspicion, for the Right was tried, and the whole Contents tried, and if it were good at Law, whether there be cause to set it aside in Equity is the Question? He was of Opinion, That the Deed was a good Deed, and ought not to be impeached in this Court. The Plaintiffs Arguments against the Deed are: 1. Surprise. 2. Concealment. 3. That the Will of 1687. is a Revocation in Equity. 4. That there is a Trust. As to the Surprise: He observed, they did not make use of the word Fraud in gaining the Deed, but that it was something put upon the Duke for want of deliberation. He said, he was not satisfied that there was any Surprise on the Duke, for he was not languishing at that time under any Sickness, but it was done and executed in good Company and after dinner, with great Consideration both before and at that time. They pretend a want of Circumstances in the execution, whereas Sir William Jones was advised with before the Deed sealed, and present at the time of the sealing: Several other Circumstances were insisted on by the Plaintiffs, but none are sufficient to set aside the Deed. The Deed of 1681. and the Will of 1675. are not inconsistent, tho' they differ in the limitation of the Estate: But by both, the greatest part of the Estate is given to the Earl of . Tho' they could not find Instructions for drawing the Deed, tho' the Deed was not found to be read, tho' no Counterpart was sealed; yet none of these by any of the Precedents have either been singly or altogether allowed, as Causes to set aside a Deed in Equity. He was of Opinion that the Deed doth confirm the Will of 1675. in the settling and assuring the Estate, part on the Duchess and part on the Earl, and as to particular limitations the Duke might alter his Mind from the Will, and do it according to the Deed. The Third thing they insist on by way of Surprise is, That it was done contrary to the Duke's Intention: Whereas the Defendants have proved, that it was according to his Intention, and the other side say not, neither before nor after the making of the Deed: For that there were several Wills made by Duke George, and not a word of any Limitation of any Estate to the Earl of . Which is answered by the other side, That the Wills are in few words, and thereby all given to Duke Christopher, and not any provision made for any younger Son or Daughter; neither in these Wills, nor in the Will of 1675. is there any thing given to the Father of this Monk. Another Objection, That the Duke never intended any thing to Sir Walter Clergies, for that he was fallen into his displeasure, and what is given is a remote Remainder; but there were Proofs of continued Kindness to the Earl of . And the greatest proof that there was no Surprise, was the presence of Sir William Jones at the execution of the Deed, who was of great Ability and Integrity, and would not be guilty of a surprising, and he was satisfied that there was nothing but fair dealing in the execution of the Deed. As to the Will of 1687. perhaps it might be intended, not to give this Estate to the Earl, and that there was great Advice taken on that Will. But what was the meaning of the Duke in making the Will of 1687. if it must signify nothing? The truest Answer that hath been given is, That he Advised whether a Will would revoke the Deed, and when he understood that it would not, but that he had put all out of his power (except by a strict Revocation,) than he gratified the continued Importunities of his near Relations, and endeavours by that to render himself easy; so he conceived the Deed well executed, and is pursuant to the Will of 1675. and cannot be set aside on the point of Surprise. The next point insisted on is Concealment, and they insist on a Clause in the Earls Answer, where the Duke sent for the Deed, in Order to make a new Settlement: The Will he might have Revoked without the Deed; but as the Plaintiff saith, the not doing of it was a Concealment, and the Argument is good, if the fact were true. But it's not so, for it doth not appear, that he ever intended to Revoke the Deed; and both the Will of 75. and the Deed of 81. were delivered into the Earls Hands, just before the Duke went abroad, and the Concealment was not from the Duke, but the Duchess, and the Precedents Cited of Clare contra come Bedford, and Raw contra Pott, come not up to this Case. The next point insisted on is Revocation. The Will of 1687. (say the Plaintiffs) is a Revocation in Equity, though there was not the Quality or Number of Witnesses described and limited in the Proviso. It's no Revocation, neither was it intended so, the Duke wrote a Letter to the Earl, that he had done him no wrong, and he left the Keys with him, and employed the Earl in selling the Cockpitt and Albemarle House, and the Duke continued in the same mind to Mo●ck, and Sir Walter Clargies, and there seemed no reason why he should not be of the same mind as to the Earl, and there was a great Provision made for the Duchess by the Will and Deed, but not a word of Mr. Monck in either, but only in this last Will. Where there are two voluntary Conveyances, he that hath the Estate by Law, shall hold it. Where a Party shall be relieved, where there is a defect, they shall be relieved, where there is a defect, they shall be relieved, where there is a deceit or falsity, and the Precedents are, that they have been relieved in such Cases, where it is to pay Debts, or to provide for Children, several Precedents have been Cited, as Price and Green, Ferrer and Thannett, Webb and Webb, temp. Eliz. Doctor Hamilton contra Maxwellin, 1655. Bowman and Yates, Wallis and Coate contra grime, Thwaytes contra Deg, Arundel contra Phillpott. As for the Trust, nothing was said by him of it, for it cannot be presumed, that there was any Resulting Trust, for that was to undo what he had done before. The Defendants are in possession by a Verdict upon the Deed, and there is no reason to disturb them. Lord Chief Justice Holt, This Case depends on a Will of 1675. and a Deed of 1681. and a Will of 1687. and the question is, whether the Will of 1687, doth Revoke the Deed of 1681. it being not pursuant to the power: He was of the same Opinion with Baron Powel, and Lord Chief Justice Treby. The Deed is a good Deed, and so all the Evidences and Circumstances relating to the Deed, aught to be taken to be true (viz.) that Sir William Jones was advised with in the Draught, and was present as a Witness, and that the Will of 1687. is a good Will; but not to be relieved against the Deed of 1681. which must be taken to be a good Deed, and he reduced what he had to say to four Heads. 1. Of the Frame and Manner of the Deed. 2. Whether on the Evidence, the Deed were unduly obtained. 3. Of the Circumstances and Conditions of the Persons. 4. Of the Person of the Duke himself, and the Circumstances he was in, when he made his Will of 1687. for whether the Plaintiffs shall be relieved against the Deed, is the Question. As to the first, It's said the Will of 75, and the Deed, make but one Conveyance, and that is fetched from Law; for at Law, a Fine and Recovery and Deed to Led the Uses, are but one Conveyance. So as to the first from the Contradictions and Misrecitals in the Deed, which have been insisted on, there is no Cause to relieve against the Deed. As to the second, on the matter of obtaining the Deed, he said, he could not find any undue obtaining of the Deed, but that Sir William Jones his Hand was in the Proviso of the said Deed, and that the Deed was not executed by a Surprise, for the Duke's Council was present at the execution of the Deed, and here is no fraud to set it aside. As to the Case of Winn and Bodvile, which has been Cited, there was a great fraud and practice; but there is no fraud or circumvention here, but the Deed is fairly obtained, and there is nothing but a presumptive Evidence against it, which ought not in Equity, to be an Evidence against the Deed, so as there appears no Evidence, that the Earl surprised the Duke, or that the Duke was surprised. 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 entrusted 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 surprise 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 Council 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 aught 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 Duchess her first eil is to set aside the Deed of 1681. And the second Bill by the Monks 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 is well entitled 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 dismissed the Bill of the Earl of Montague, 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 one's Hand shall amount to a good Agreement within the Statute of Frauds and Perjuries, 286 Money 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 Judgements, 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 expressed in the Ac etiam Billae, 55, 226 Bankrupts as to Partners, 227, 228 Joint 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 entered 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 proceed by English Bill in the Lord Mayor●s Court into Chancery, 110 Conveyance, with power of Revocation on payment of 12 d. at such a place; 12 d. was tendered at another place, with express declaration to revoke the Deed, 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 Judgements, 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 Upon a Contract for Copyhold Estate, and Purchase Money 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, dismissed, 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. Rent-charge devised in lieu of a Jointure, and by the same Will an implicit Devise of Lands to her; Decreed, she shall have only the 200 l. per Annum, 64 Parol Declaration of ones Intent, not good against a Declaration in Writing, 78 Deed, tho' Canceled, yet good, 100 Demurrer to a Bill of Discovery, whether the Defendant be married or not, good; for that if she be married, it's a forfeiture of the Estate, 68 Bill to discover Settlements in Trust: Plea, That the Defendant was a Scrivener, and had taken Oath, not to discover the Secrets of his Clients; Overruled, 29 E DEfendant, in what cases not to be Examined upon Interrogatories, 16 Estate Personal. trusties lay out the the moneys of an Infant to purchase Lands in Fee; this shall be abcounted part of his Personal Estate, he dying a Minor, 377 Personal Estate, not specifically devised, to be applied to the payment of Debts, and the Real Estate not subject thereto, 383 Remainder of a Personal Estate devised after Issue to J. S. a void Remainder, 66 Articles of a Purchase, and 600 l. paid; Contractor dies before any Conveyance executed, it was accounted part of his Personal Estate, 139 F FOreign Attachment, London, 109 Fraudulent Deed, or not, 33 A Widow makes a Deed of her former Husband's Estate, and marries the second Husband, not privy to it; the Deed set aside, and the second Husband to enjoy the Estate, 1 G GVardian takes Bond in his own name for Arrears of Rent, by this the Guardian hath made it his own debt, 97 H A Residue of a Term after Debts paid and a Life determined, decreed not to the residuary Legatee, but the Heir, 296 No Re-hearing after a Decree Signed and Enrolled, 361 The Heir relieved against a Contingent Contract made in his Father's life time, because it seemed unconscionable, Marriage Agreement to have Money laid out in Lands for a Jointure to such Uses, the Remainder to the use of the right Heirs of the Husband, the Money is not laid out, the Husband dies without Issue, the Money decreed to the Plaintiff being right Heir, 400 Portion devised upon a Contingency of dying, or Marriage, decreed to be paid into Court for the benefit of the Heir, if the Devisees die, 150 Persons by Habeas-corpus brought to Bristol, and turned over to the Fleet, for that he was in Contempt, 151 I. THe certain profits of the premises set against the Interest: Interest upon Interest decreed, 82, 286 Where there is no Contingency of Survivorship, but the Interest presently vests, 133 Plaintff not relieved against a Judgement entered into 60 years ago, and no consideration proved, 54 From what time of the entering, Judgement to be accounted, 90 Examination of the actual entry of a Judgement in Chancery, to what purpose, 91 Judgements to Attach Lands according to the Priority of Originals, 148 K. THe King's Officer previledged from Parish Offices, tho' he drive a Trade in the Parish, 197 L. OF Leases to attend the Inheritance, 233, 243, 273 Legacy vid. Wills, Difference between a Legacy and a Trust, 288 Who are Servants capable to receive Legacies by the general words, (to all my Servants, etc. Legacies to (Poor Kindred) how far to be Extended. 395 Estate decreed to the residuary Legatee, and not to the Administrator, 100 Legacies given by a Will and a Codicil, are distinct and not the same, 74 Land Legatees, and Money Legatees decreed to abate in proportion, 155 Legacy to be paid at 16, Legatee dies before, her Administrator shall not receive it till the 16 years' end, 191 Legatee dies before payment of his Legacy, yet payable to his next of Kin, 98 Legacies devised to such who shall be his Servants at the time of his death, who shall be said to be such Servants, 101 Two Legatees, and if either die, then to the Survivor, one dies in the life of the Testator, the Survivor shall have all 188 What Amounts to an Assent to a Legacy, 250 Difference between a Lease which is to commence after failure of payment, and a Mortgage with a Condition subsequent, 54 Limitation of a Trust for the Heirs Males, void, and the benefit of the Trust belongs to the Executor, 58 Defect of Livery and Seision aided in Chancery, 250 M BIll to enforce the Lord of a Manor to receive a Petition in nature of a Writ of false Judgement, to reverse a common Recovery, demurred to, and the Demurrer allowed, 387 Of Marriages by consent, 24, 95, 366 Marriage Agreement provided if the Wife claims any of the personal Estate by the Custom of the Province of York, than the Estate to go to other uses; decreed she is bound by the said Settlement and ought not to claim any part of the personal Estate, 251 Mean profits decreed, tho' a long time since; the mean profits tho' omitted in a former Decree, yet decreed in a Later, 261 The prior Mortgagee upon redemption by the second Mortgagee, shall be charged with the profits by whomsoever received after the second Mortgage 209 Mortgage for 2000 l. before which time the Mortgagor borrowed of him that was afterwards Mortgagee 300 l. which was agreed should be secured by the said Mortgage, both sums must be paid upon the Redemption, 247 Whether Mortgage Money to be paid by the Administrator in relief of the Heir and when not, 274, 275 The Plaintiff decreed to pay off a Bond of 50 l. as well as the Mortgage Money upon Redemption 361 Creditors on Judgements; and Bonds decreed to redeem Mortgages, 396 Mortgage Money to whom payable, to the Heir or Executor, who shall have the Equity of Redemption, 42, 140, 143, 155 Rent charge in Fee Mortgaged is devised, than the Money is paid, the Administrator shall have it and not the Heir, 162 An Ancient Recognizance not set aside to let in a Mortgage, 106 Adventure in the East India Company Mortgaged is Redeemable, 108 Purchase Mony. Bill for the Remainder of Purchase Money, Defendant pleads it is 33 years since and never any Suit for it, but the Land enjoyed, and former parties concerned dead, a good Plea, 44 N. NE exeat Regnum, 19 And the Causes of it, 20 Laymen to find Security as well as Clergymen upon a Ne exeat Regnum, 20 O THE unadvanced Children by the Custom of London, to bring in what they had received into Hocpoch with the Orphanage thirds after the Estate is divided into thirds, and not with the whole Estate, 360 Executor decreed to pay in Orphan's Money into the Hand of W. B. etc. 12 What Declaration in writing of a Freeman will let in his Child to have a Customary part, 183 What Money is deposited by the Father to Purchase Lands in persuance of Marriage Articls, is to be taken as Real and not as personal Estate; and shall not be brought into Hochpoch, vid. 50, 92 Title under an Occupant demurred to, 112 P INformation by English Bill proper to relieve against a Patent granted by Surprise, 357 Patent not reversable by Scire facias, ib. Of Perpetuities on entailing of a Term for years, with Remainders over, 229 Remainders succesively in a Deed of Trust, being limited and confined to fall within 21 years are good, and no Perpetuities, 282 Q EStates Devised to be sold for increase of children's Portions, and a Child is Born since the Will, that Child shall have a share, 211 Portions to be paid to two Daughters at Age or Marriage, one dies before, her Portion shall not go to the Administrator, but the Heir shall have the profits upon the Settlement, 289 Devise by Will, and an Agreement about a Portion, not intended several sums, 35 Where Lands to be charged with Portions or not, upon the Construction of a Will, 126 On Constructions of a Marriage Settlement and a Will, only one Portion decreed and not double, 165 Payment. Whether payment of Money shall be applied to discharge Interest of the original debt, or towards satisfaction received by Judgement on the same Bond, 89 Privilege from a Parish Office for the King's Officer, grantable out of Chancery, as well as Exchequer, 197 Power to make Leases if well pursued, 157 Prohibition out of Chancery, for Arresting in the Marshals Court, for matters arising in Berks, 301 R. UPon refusal to accept of Rent, no relief in Law or Equity for the Arrears, 61 Recognizance entered into by the Wife the day before Marriage set aside, and a perpetual Injunction, 80 Release pleaded against the Redemption of a Mortgage and allowed, 131 Reversion after an Estate , subject to Trust for payment of debts, 208 Contingent Remainders. Devise to Father for life, Remainder to his first Son, and Remainder to trusties for 99 years, to support the Contingencies, good, tho' the Limitation is misplaced, 171 A Suit cannot be revived for Costs alone, where no Duty is decreed, 246 A Settlement with power of Revocation by Will Executed in presence of three Witnesses, but one of them did not subscribe his Name, yet decreed a sufficient Revocation, 214 Proofs in an original Cause not to be allowed on a Bill of Review, 18, 45 Bill of Reviver dismissed, for that 'tis a long time since the Decree was made, and the Plaintiff Rested under it without any complaint, 48 Bill of Review, for that the Plaintiff can now prove a tender and refusal, which he could not prove before, dismissed, 66 Reviver by Bill or Scire facias when proper, 67 Where not ordinary Process upon the first Decree will serve, but there must be a new Bill to pay Execution of the first Decree by second Decree, 128 No Reviver for Costs, there being no Decree Enrolled, 195 No Defence in case of Abatement before the Decree signed can revive, 195 S SEpecial Maintenance, 411 feme Coverts disposing of her personal Estate, according to Marriage Agreement decreed good, but not as to the Rents and Profits of her real Estate, 416 A prior Deed of Settlement barred by a subsequent Deed, and new provision made for Portions, 8 Supplicavit of the Peace on Petition, and not on Motion, nor any endorsement on the back thereof, yet good, 68 Want of a Surrender Aided, 129 Money decreed to be paid out of a Sequestered Estate, and the Commissioners had power to sell the Term, 192 A Decree and Sequestration against one who dies, shall not be revived against his Heir or real Estate, 244 T DEed in Trust to pay debts, tho' the Creditors are not parties, and no certainty of debts therein appearing, yet yet good against an after Purchasor who had notice of the Trust, 31 An old Trust continued upon a new Lease or Patent, 60 No Tenant right against the Crown, ibid. Mortgagee or Trustee renewing a Church Lease, the cesty que Trust relieved, ib. Where Executor shall have a Trust and where not, 78 After a Statute acknowledged, and a Mortgage, the Conisors trusties renew Leases in their own Names, yet decreed liable to the Statute, 213 Trust assigned, Trust determined, 115, etc. a general Trust, and not a fixed Trust, 141 2000 l. Allowed a Trustee for charges and expenses in managing the Trust, 158 Springing Trust, 233 Difference between a Trust and a Legacy, 288 Term i● Gross, and Term to attend the Inheritance, 233 Trayal at Law directed within a precise time, 124 U Will vid. Legacies. DEvise of Money to be paid at a day to come, Devisee dies before the day, yet it shall be payable to the Administrator, 25 Land devised on Condition the Devisee Marry with consent, the Limitation over, Devisee Marries without consent; she shall not be relieved, but the Land decreed to the Remainder man, 28 Clause in a Will, If any Legatee shall oppose or hinder the Execution of the Will, than such persons to lose the Legacy, a Suit for the Legacy is no forfeiture, 105 Construction upon the words of a Will, about a double Legacy, 111 Construction upon the words of a Will, about the profits of Land and Trusts, 117, 118 Devise of Goods to J.S. for 11 years, Remainder over, J. S. decreed to deliver the Goods after the 11 years, 137 Devise the residue of his Estate amongst his Kindred according to their most need, how to be expounded, 147 By the general words of a Will, (I Devise all my Goods, Chattels and Household-Stuff in and about my House to J. S. ready Money in the House shall not pass to the Devisee, she having a Legacy, 190 A Deed of Trust, no Revocation of a Will. Estate Devised to be sold for increase of children's Portions, and a Child is Born since the Will, that Child shall have no share, 211 Devise of a Plantation in Barbados, 250 Executory Devises, 275 Vide Perpetuities, A Will, and after that a Mortgage, the Will is republished, it's a good Will and not revoked, 299 Lands devised to be sold, and none expressed to sell, the Executors shall sell, 304 Money devised to one for life, with Limitation over, good Limitation, 410 One of the Plaintiffs a Witness, 32 W Waste. Injunction against Ploughing or Burning of Pasture, 94 Y THe Custom of the Province of York, as to the distribution of Decedents Estates, 258 FINIS.