Chief Justice Foster in absence of the Chan­cellor.
Copleston against Boxwill.

THE Plaintiff made an absolute Conveyance in Fée to the Defendant, by Lease and Release, of Lands worth 1000 l. per annum in considera­tion of 1000 l. The Plaintiff at the making the Conveyance had but the Reversion in Fee expectant on an old Life, which shortly after died; the Plaintiff then made Livery to the Defendant. The Bill was, That the said Conveyance was a Mortgage, and that he might be ad­mitted to redeem; The Proof was, That the Defendant had said several times after the Conveyance, That he knew not how long he should enjoy the said Lands, and had said [Page 2]also, That he would take his Mony again with Damages. This was strongly urged by the Plaintiffs Council to be a Mortgage.

Churchil of the Defendants Counsel insisted, that it is a Maxim,Remedy for the Mortgagor and Mortagagee ought to be re­ciprocal. That none can come to redeem a Mortgage when the Mortgagee cannot compel the Payment of the Mortgage Mony; for the Remedy ought to be reciprocal. And in this Case the Defendant hath no remedy to inforce the payment of this Mony. And moreover he insisted, That if it were a Mortgage, it must be so à principio, either by a Condition in the Déed it self, or by an other collateral Déed made at the same time; for the Condition ought to be made and conceived at the same time with the Con­veyance.A Poll Agree­ment after Con­veyance cannot make it a Mort­gage, if not so at first. And in the principal Case it was not said, that it was a Mortgage at first, but by Agréement subsequent, and then he said, that was a nude Agréement, and no manner of execution of it.

The matter by consent was referred to be determined in an amicable way.

The Lord Chancellor. Chief Justice Foster.
Katharine Venables against Foyle.

Assignment of a Mortgage, the Mortgagee or­dered to account before Assign­ment, and after it. KAtharine Venables being a Tenant to Winchester-Colledge, of the Rectory of Andover, and indebted 700 l. to the Defendant, agréed with him, That he should pay 400 l. to the Colledge for her, and that he should sur­render her Lease and take a new one in his Name; and it was also agreéd that she should for the first year of the new Lease hold the Premisses, and pay the Colledge their Rent; and if she did at the first years end pay the Defen­dant his 1100 l. with damages, the Defendant should as­sign to the Plaintiff. The first year effluxeth, and the Plaintiff neither paid the Defendant his Mony nor the Colledge their Rent, and at three years end she permitted the Defendant to enter upon the Premises and to enjoy them. Thereupon the Defendant exhibited a Bill to have the Plaintiff (then Defendant) redeem, or be foreclosed of [Page 3]Redemption. She answered; and her intent thereby appear­ed to be, that the Plaintiff should satisfie himself by receipt of the profits, and not to pay him: Hereupon the then Plain­tiff (now Defendant) assigned the said Lease to Nicholas Venables, the Plaintiff Katharine her Son, in consideration of an account made up betwéen them two of what was re­ally due to the Defendant on the Mortgage. This Assign­ment recited the said Suit by Foyle to have Katharine re­deém, and that his Interest was a Mortgage forfeited, and Nicholas Venables covenanted to indempnifie Foyle against Katharine. This being the Case, Katharine exhibited her Bill for to be relieved against Nicholas Venables and Foyle, setting forth the Estate to Foyle to be (as it was) a Mort­gage, and sought to be admitted to the Redemption against them both.Outlawry pleaded. A Mortgagee after Forfeiture assigns, and is decreed to ac­count for the whole time, without the As­signee's being a Party. Nicholas Venables pleaded several Outlawries against her, so that she could not proceéd against him. Foyle he answered fairly, that he had assigned to Nicholas Venables upon his paying him what was due, and not more. This Case procéeded to an hearing against Foyle only, and in verity the Case was no more, but that a Mortgagee assigns his Mortgage over for his due Debt. But it was much insisted by the Plaintiffs Counsel, That there was a breach of Trust in Foyle, and it was decreed that Foyle should account for all the Profits both before and after the Assignment, and pay the Overplus above his own Debt with damages to the Plaintiff,A Bill to in­force to do an Act which the Plaintiff was formerly de­creed to pro­cure. and convey and procure all clayming under him to convey to the Plaintiff freé from Incumbrances done by him and them; afterwards Foyle not being able to per­form this Decrée exhibited a Bill against Katherine Vena­bles, setting forth a Fraud and Practice betweén them, and that he was willing to account unto the time of his Assign­ment, and to comply with the Decree as far as he was able, and prayed Nicholas Venables might come to an account from the time of the Assignment and Recovery. Nicholas Venables exhibited a Bill against his Mother claiming the original Lease by a Title paramount hers;Decree avoided by original Bill. and at the hearing the said Causes about a year and half after, it ap­peared that Nicholas Venables had a Title to the Lease para­mount his Mother: And Foyle was, upon hearing the mat­ter, discharged of the Decrée against him.

The Lord Chancellor. Foster Chief Justice. Windham Justice. Hales Chief Baron.
Henry Goring Baronet and others, Plaintiffs, against Charles Bickerstaffe and Elizabeth his Wife, John Everfield by his Guardian, Dame Ann Al­ford Widow, and John Alford by Dame Ann, his Mother and Guardian, Defendants. January 30.
Upon an Appeal, from a Decree made by the Master of the Rolls, by the Defendant Dame Ann only.

JOHN Alford deceased, being seized of the Manor of Hams, &c. by Indenture dated 1 April 14 Car. 1. and Fine thereupon, settles the same to the use of himself for life, the Reversion, as to part, to the use of Frances his Wife for life, for her Ioynture, Reversion to his first and to his fourth Son in Tail, Reversion to Sir Edward Alford his Brother for life, Reversion to Sir Ed. and to his first and [Page 5]all other his Sons, Reversion to his own right Heirs, under a Proviso that it should be lawful for the said John and Sir Edward, when they should be solely seized of the Pre­misses, or any part thereof by vertue of any of the Limi­tations at their pleasures to make Leases of the same or any part thereof for one and twenty years, under what Rent they pleased. 7 Julii, 1643. John Alford made his Will, and thereby gave his Daughter Jane (the Defen­dant Everfields Mother) 600 l. To his Daughter Elizabeth (now Wife of the Defendant Bickerstaff) 500 l. to make her Portion 3000 l. and devised to her all his Messuages in White-Fryars in London, Pickhatch and Goswel-Street in Middlesex, and in Wigonholt in Sussex, to her and to the Heirs of her Body, the Reversion to Sir Edward Alford and his Heirs, provided that if Sir Edward paid Elizabeth 2500 l. at her Marriage, or at 21 years of age, which of them should first happen, the Estate to her to cease, and the Premisses to remain to Sir Ed. and his Heirs, and of his said Will made Frances his own Wife Executrix, and afterwards pursuant to his power by the Indenture of the first of April, 14 Car. 1. by Indenture of the first of January, 1648. did demise to the Plaintiffs the greatest part of the Manor of Hams, &c. from Michaelmas then last past, for one and twenty years, un­der 10 s. yearly Rent, upon Trust, that they should permit the said John Alford during his Life to take and receive the Rents, Issues, &c. of the said Manor; and upon further Trust, that after his death, Frances, his Wife, should re­ceive the Rents, Profits, &c. in satisfaction of her Ioin­ture so far as the Premisses by any former assurance were lyable thereunto, and to permit her, during her life, if the Term so long continued, to receive out of the residue of the Rents of the Premisses 120 l. per annum, and certain Fire-Wood and Fagots; and that the Plaintiffs should pay the said Jane Everfield 50 l. per annum during the life of her Husband; and should permit the said Frances, his Wife, during her life, if the Term so long continued, to re­ceive the residue of the Rents, during the residue of the Term of one and twenty years, if she should so long live, to the intent she should pay thereout so much Mony towards the Legacies of his Will, as his personal Estate should be wanting to pay, and to pay the residue to such person as the said John Alford should by his Will appoint; and for want of such nomination to receive the same to her own use. And upon further Trust that the Plaintiffs after [Page 6]the death of Frances, during the residue of the Term of one and twenty years, should permit such person and per­sons as the said John Alford by any writing by him signed and sealed in the presence of two credible Witnesses, or his last Will, should nominate, and for want of such Nomi­nation after the death of the Nominée, the Heir of the said John Alford to take and receive all and singular the Rents of the Premisses: The said John Alford by Deéd the same first of January, 1648. signed and sealed in the presence of four credible Witnesses, thereby reciting the said Demise and Trust, did nominate and appoint the eldest Son of William Alford his Brother to have out of the residue of the Premisses 50 l. per annum, during the said Term, and his two younger Sons 60 l. a piece, and the said Sir Edward Alford to receive the residue of the Rents and Profits by the Trust of the said Demise limited to be paid to the said Frances, and after her death to take and receive the residue of the Rents and Profits during the residue of the said Term to his own use. It appeared by one Witness that John Alford threé or four days before his death, which was before the Trust, and the Declara­tion of Trust, did acquaint that Witness that he had settled the Estate in Hams well, as he thought he could, and that his Brother Sir Edward Alford was by an Agreément between them to have all his Estate there after his death, and that he thereout appointed some allowance to his Daughter Everfield, and declared that his Daughter Elizabeth (now Wife of the Defendant Bickerstaff) was not to have any thing out of his Estate there, for that he had otherwise provided for her. John Alford the Night or the same Day the Demise and Declaration bore date, dyed without Issue Male, leaving the Daughters his Heirs. Sir Edward Al­ford died intestate September, 1683. The Defendant Dame Ann his Relict, had taken out Administration; Jane, the Mother of the Defendant John Everfield, and whose Heir he was, dyed in the life of Frances her Mother; Frances having proved John Alford her Husbands Will, dyed in 1659. having made the Defendant, Elizabeth Bickerstaff, Executrix. The Defendant Dame Ann, as Administratrix of Sir Edward Alford Defendant, John Alford as first Son and Heir of Sir Edward Alford Defendant, Bicker­staff and his Wife in her right, she being one of the Co­heirs of John Alford, and Executrix of Frances, who was the Executrix of John Alford, and John Everfield, as Heir [Page 7]to Jane, Co-heir with Elizabeth Bickerstaff, claimed the benefit of the Trust during the residue of the one and twenty years after Frances her death; so the Plaintiffs be­ing Trustees, ut supra, the Defendants all claiming the benefit of the Trust under several Titles, The Bill was to have the Defendants enterplead, and to desire the direction of the Court, to whom the Trust belonged.

Vpon the first Hearing by the Master of the Rolls, 2 Novemb. 13 Car. 2.

Inasmuch as the power reserved to John Alford by the Lease is, That after the death of Frances the Trustees should permit and suffer such person and persons as he should nominate, and after the death of the nominee his own right Heirs to receive the Profits, &c. The Court was of Opinion, That John Alford had no power to no­minate any person to receive the Rents, &c. but during the Life of the nominee and no longer; for after the nominees death the Heirs at Law are nominated by the original Deed to receive, &c. And when after by Deéd Poll Sir Edward Alford is appointed to receive the Rents, that must be intended if he so long liveth; for the Deed Poll reciteth the Lease, and is in pursuance of the Trust therein, and that John Alford his intention in the original Lease was plain,Two Deeds of the same date touching one thing but one Assurance. That after the death of the nominee his own Heirs should have the residue of the Trust; and both the Deeds being executed at one time are to be taken as one Assurance; and if he had meant the Heirs, Executors or Administrators of Sir Edward should have the remaining part after Sir Edward, he would have na­med them as well as Sir Edward; and for that the Inte­rest of the Term was alwaies in the Plaintiff, and never any real or legal Interest in Sir Edward, but as nomi­nee to receive the Profits, he being dead, the Trust to him ceaseth, and nothing passeth to his Heirs or Executors, but remaineth to Elizabeth the surviving Daughter, Heir and Executrix to John Alford, and the testimony of that one Witness can be intended to relate to no other Settle­ment but the first by Deed and Fine, and not the Trust of the Lease,Heir at Law to be preferred in a doubtful case. which was not in being when the said John Alford had the discourse with that Witness, but was made the day of his death, and that the residue of the Term of one and twenty years doth belong to the Heir at Law of John Alford, who in a doubtful case ought to be prefer­red, especially when it is so consonant to John Alford's [Page 8]intention, and the Defendant Bickerstaff is also his Ex­ecutrix and Daughter, and doth therefore order and decrée the same accordingly, and that the Rents arrear and for the future be paid to the Defendant Bickerstaff during the Coverture betwéen them, and after to the Defendant Elizabeth Bickerstaff during the residue of the Term.

And upon the Appeal the question was upon the whole Case, Whether John Alford had power to dispose of the Trust of the whole Term of one and twenty years after the death of Frances, and how far he had power to dispose of it, and whether there were not a Restriction by the Limi­tation of the first Déed to the Heirs after the death of the Nomineé, that did disable his disposition thereof farther, except to his Heirs, and whether John Alford had disposed the whole Term or not, and which of the Parties ought to have the Remainder of the Trust.

The Counsel of the Defendant Bickerstaff now offered farther, that John Alford had no power after two distinct Limitations to two several persons, to limit it to a third after the death of the second, because it would make an Ex­ecutory Devise upon an Executory Devise to tend to the intayling of a Chattel,Executory De­vise. and creating a Perpetuity, and that the Limitation of John Alford was out of the Power and Trust,Perpetuity. and not of any Interest in the Reversion of the Term.Limitation in Reversion to se­veral persons in being doth not tend to the cre­ation of a Per­petuity, but o­therwise if it be to a person not in being. They did all agrée in one uniform Opinion, That the Limitation of a Term to several persons in Re­version one after another, if those persons were in being, and particularly named could in no wise tend to the intail of a Chattel or Creation of a perpetuity; but limiting of it to a person not in being, did; and that where any per­son had the Trust of a Possibility in Remainder of a Term, he had good power to declare and make a disposition of the Trust of such Possibility; but that the Limitation of such Remainder in Possibility of a Chattel real to the Heir of the person limiting was a void Limitation,The Trust of a Possibility is as­signable or de­clarable. and the Estate in Interest did again revert to John Alford who made that Limitation, and he having by the Deed Poll the same day of the Lease,On a void Limi­tation the Estate reverts to the Limitor. which was made pursuant to the power of the first Settlement, limited to Sir Edward Alford the whole remaining Term after the death of Frances without any other Limitation or Restriction,Limitation of the Trust of a Term to one, good to his Ex­ecutors. which he might easily have done (if so intended) the same was a good Li­mitation of it to Sir Edward his Executors and Admi­nistrators; and if the power in John Alford had been de­fective, [Page 9]his Interest ought to come in aid and supply it to make good such Limitation,The Interest of the Limitor is to supply his power if that be de­fective. for otherwise there would be no disposition at all of the remaining Term, and the Le­gacies of 50 and 60 l. to William Alfords Children would be avoided, and the Interest in the remaining Term might be pretended to be in the Trustees, and they claim the Estate discharged of the Trust, there being nothing to oppose the power or intention of John Alford in li­miting the whole Remainder of the Term to Sir Edward, but the implicated, misplaced and mistaken expression of the Lease. The whole Court was clear of Opinion, that the former Decrée was grounded upon a mistaken foun­dation; and that taking both Deeds together, no other equitable or reasonadle Interpretation can be made thereof, but that according to the Power, Interest and Intention of John Alford, who it appears by one Witness never in­tended the Estate to whom it was decreed by the former Decree the whole remaining Term in the said Lease and Trust therein after the death of Frances, for the residue was well limited and appointed to Sir Edward Alford, his Executors and Administrators; and that the Defendant Dame Ann is well intituled thereunto, and doth order and decrée that the former Order and Decrée be discharged, and that the Plaintiffs shall come to an account for, and pay the said Dame Ann the Rents and Profits of the said Manor which are arrear and to grow due until the expira­tion of the Remainder of the said Term of one and twenty years, and convey to her for the residue of the Term, if so required, and in so doing shall be protected and saved harmless by the Authority of this Court, Vide Moors Reports 809. Totton contra Mollineaux, 1 Co. Rep. 156. 3 Cro. 577. 10 Co. 47, 48, 52. And Quaere, why the Trust of a Possibility in the Remainder of a Term is disposable over, and the Possibility in Interest in the Re­version of a Term is not assignable, Vide 8 Co. Rep. 96.

The Lord Chancellor. The Master of the Rolls. Chief Justice Hide. Justice Twisden.
Pollard against Greenvil.

THE Plaintiff lent the Lady Greenvil 100 l. and one Culliford, as her chief Agent and Friend, be­came bound for the same: And the Lady having power to make a Lease in possession for one and twenty years of her Estate makes a Lease to Culliford for one and twenty years to secure him from the Debt aforesaid, and se­veral other Debts he was ingaged for the said Lady; but the Lease was made to commence from a time to come, which was void in Law, in respect her power was but as aforesaid, and Culliford had the Possession for some time, but was afterwards ousted by force, by the Lady's Hus­band; but her Husband not long afterwards dying, she enjoyed it for the remainder of the Term, and Culliford being dead and leaving no Assets, the Plaintiff therefore preferred his Bill here for the Debt aforesaid. But for that it appeared to the Court that the Mony was imployed for his use who created the Trust for payment of Debts,A defective Ex­ecution of a Power made good in Equity. and she having received the Profits for thirtéen years, and for that the Lease was not good in strictness of Law, yet the Court was satisfied that the same did amount to a good declaration of her power in Equity to make the Lease for one and twenty years in being, and that the Receipts of Profits was also under that power, and subject to the Trust: And although the Defendant did set forth by Answer, that Culliford at the time of his death was indebted to her, yet the Defendant was decreed to pay the Debt.

The Lord Chancellor.
Anonymus.
Upon a Demurrer after Trinity Term 14 Car. 2. 1663.

THE Bill was barely to discover a Déed. The Defendant demurred, because the Plaintiff had not made Dath according to the course of the Court that he had not the Déed.

Where it be­hoveth that the Plaintiff make Oath of the want of a Deed, where not. Serjeant Glyn for the Plaintiff insisted, That the Oath was not required by the course of the Court in this Case, and he took this difference, That when the Bill alledgeth the want of a Deed, and seeketh to be relieved upon the matter of that Deed, by a Decree, there such Oath is ne­cessary; but where the Bill seeks no Decree, but barely to have the Defendant discover, whether he hath such Deed or not, or to have the Deed produced at a Tryal; in that Case the Plaintiff ought not to be put to his Oath, for its not to be presumed the Plaintiff would exhibite a Bill in either of the later Cases, if be had the Deed. This diffe­rence was well approved of by the Lord Chancellor, and thereupon the Demurrer over-ruled.

Sir Thomas Bennet and Sir William Brownlow, Knights, Plaintiffs, against Mary Box, Relict of Henry Box, and Daughter of Ralph Allen, Walter Stonehouse, Son and Heir of Elizabeth Stonehouse, another of the Daughters of Ralph Allen, George Burdet, Son and Heir of Mar­tha Burdet, another of the Daughters of Ralph Allen.

ANNO 15 Jac. Ralph Allen purchaseth Lands in his own Name, and in the Name of Edward Hammond, in Trust for Ralph Allen and his Heirs, and Hammond to take nothing thereby: But the Trust is not expressed in the Conveyance. William Allen Senior did borrow 600 l. of John Bennet, and the said William Allen, Ralph Al­len and William Allen Junior, Son and Heir of the said Ralph Allen, (William Allen Senior being first bound in the Bond) 1630. did become bound unto the said John Bennet, since deceased, for the payment of the said 600 l. by Bond of 1000 l. wherein they bound themselves and their Heirs, under whom the Plaintiffs are well intituled to the Debt in question. And one Witness deposeth that Ralph Allen was a good Husband, not one that contracted any Debts of his own, and believes he and William Al­len Iunior were only Sureties for William Allen Senior. Ralph Allen dies, and Hammond survives, and after dies; then William Allen, Son and Heir of Ralph Allen, dy­eth without Issue, and the now Defendants as Heirs at Law bring their Bill against the Heirs of Hammond, who had the Estate in Law, to have the Lands conveyed to them in performance of the Trust, which is decreed ac­cordingly, and the Lands conveyed unto them as Heirs at Law of Ralph Allen.

The now Plaintiffs bring their Action of Debt at Law against Henry Box, since deceased, and the now Defen­dants as Heirs of Ralph Allen. The Defendants there­unto pleaded Riens per discent praeter a third part of a Messuage, worth 6 l. 13 s. 4 d. per annum.

January, 1662. The now Plaintiffs bring their Bill in this Court against the Defendants, and Henry Box the Defendants late Husband, who had the Lands decréed and conveyed unto them as Heirs of Ralph Allen, to have them decreéd as Heirs, to pay the just Debts of Allen, or to have the said Lands made lyable to pay the said Debt as Assets in Equity.

The Defendants, Box and Stonehouse, pleaded, that the said Action still depended, which is a double vexation; and demur, and demand Iudgment, whether they as Heirs shall be charged in Equity, without any Trust or Agréement further than the Law chargeth them.

On hearing thereof, a Case was stated on the Bill, Plea and Demurrer; and afterwards Henry Box died. And before any Bill of Revivor against the Defendants, It was Ordered, May 12. 1673. that the Defendants do answer the Plaintiffs Bill; but the benefit of the Plea to be considered of at the hearing.

The Defendants deny that they have entred into, or received any of the Profits of the said Lands, the same be­ing ever since 7 Car. extended for the Debts of Ralph Allen, and ever since held by Sir John Banks and his Exe­cutors, and formerly before the Extents were let at 500 l. per annum, and after at 300 l. per annum, and now but at about 400 l. per annum, and whereout above 60 l. is de­ducted, for the Charges of the Sea Banks, and the rest will not pay the Interest of the Principal Debt, as the Extendors alledge.

An Original was filed by the Plaintiffs against Henry Box and the other Defendants on the Bond in question in the Common Pleas, bearing Teste 14 Feb. 1659.

The Defendaut Walter Stonehouse did for 400 l. bar­gain and sell his third part of the Reversion in Feé of the Lands in question to Henry Box, deceased, by Deéd bearing date 3 Octob. 1660. and the said Henry paid then to the said Walter the 400 l. Purchase Mony for the same, and the Defendants as they swear by their Answer, had not then or in some Months after any notice of the said Origi­nal, and no notice is proved; and one Witness deposeth he believeth there was no notice, for he being conversant in all Mr. Boxes Affairs, if there had béen any notice, he should have heard of it, as he verily believes.

The Defendant george Burdet, after the other Defen­dants were ordered to answer, put in his Answer, and [Page 14]thereby insisted on the same matter the other Defendants did by their Plea and Demurrer, and was on June the 9th last past served with Process ad audiendum Judicium upon 21 June following, but appeared not at the hearing, or any for him.

• 1. Question. Whether the said Lands as this Case is, shall or ought to be decreéd as Assets in Equity?
• 2dly. Or whether the Plaintiffs ought to have any Decreé in this Case against the Defendants?

Chief Justice Hide, Chief Baron Hales, and Justice Windham were of Opinion on hearing Counsel on both sides,Trust Lands no Assets in Equity although the Trust be decreed in Equity. that the Lands in the said Case and Bill mentioned (as the Case is stated) are not, nor ought to be decreéd as Assets in Equity, and that the Plaintiffs ought not to have any Decrée against the Defendants.

Afterwards in Hillary Vacation, 1664. the Bill was dismist upon the Iudges Certificate, 14 Novemb. 1667. or 1661. in a Case wherein Clark was Plaintiff against Sir Thomas Fanshaw.

The like Iudgment upon a Demurrer.

The Lord Chancellor. The Master of the Rolls.
Dr. Coldcot against Hill and others.

THE Case was to this purpose. Dr. Coldcot having purchased Church Lands in Fée under the Title of the Vsurper (during the Rebellion) sold the same in Fée to the Defendants Testator, and covenanted that he was lawfully seized, &c. The Church being restored, and the Estate voided, the Covenanteé sued the Covenant and recovered damages to the value of the Purchase Mony. To be relieved in this was the scope of the Bill,Averment a­gainst a Deed. which did suggest a surprise upon the Plaintiff in getting him into that Covenant, and that it was de­clared by Dr. Coldcot, when he sealed, and the Defen­dants Testator,Relief for one who had entred into a general Warranty, where he in­tended but a­gainst himself only, and this after Eviction. that it was intended Dr. Coldcot should not undertake any further than against himself. Vpon the hearing it was proved that the matter of the Covenant, up­on which the Iudgment was had against the Plaintiff, was controverted in the Paper Draught, and put out by the Plaintiffs Counsel, and in again by the Defendants Coun­sel, with the alteration only, that whereas the Covenant [Page 16]was that the Plaintiff was lawfully seized, &c. the Plain­tiffs Counsel put out (lawfully) which signified nothing; for to covenant one is seized, is intended lawfully. But some proof being that it was declared upon sealing,Relief against ones own Act. that the Plaintiff should undertake for his own Act only,

It was decréed, that the Defendant should acknowledge satisfaction on the Iudgment and pay Costs. And a like Case to this betwéen Farrer and Farrer was heard, and de­créed after the same manner about six Months before.

The Lord Chancellor. The Master of the Rolls. Chief Justice Hide.
Lee against Hale. 31 Januarii.

1. RVled that a Devise of the moiety of the personal Estate to the Wife, and then of divers Legacies, and after of the residue to another, that the Wife shall have a full Moiety, if the other Moiety be sufficient to pay the Debts, and that the Debts shall go out of the other Moiety, Dyer 164. Against which it was objected, that the Hus­band could not bequeath any part till the Debts paid, and that therefore the Debts ought to be first deducted out of the whole Goods; but that Objection was over-ruled. The other Moiety left being sufficient for the Debts in his Case.

By the Devise of the Moiety of a personal Estate, what passeth. 2. Ruled that by the bequest of a Moiety of the perso­nal Estate, where the Testator had Monies, Bonds and a Lease for years, a Moiety of the Lease passed. Against which it was objected, That that was not usually reckoned personal Estate.

The Lord Chancellor. Chief Justice Bridgman. Chief Baron Hales.
The Lord Marques of Antrim against the Duke of Buckingham. January.

THE Lady Antrim Mother of the Defendant be­ing a Feme sole, and seized of a Reversion after one life, settles the Lands to the use of her self for life, Remainder in Tail, with power for her, being sole, to make Leases for threé Lives in possession. The Feme marries, and then she and her Husband make Leases for one and twenty years (in the life of Tenant for life) to commence from the date, for payment of Debts, &c. as was alledged.

1. Question. If this Lease by Baron and Feme was good.

Bridgman. The power is not pursued; for by the Marriage she hath put her self in the power of her Hus­band; and it is the Déed of her Husband, and not hers. And be took a diversity betwéen a naked Power and a Power which flows from an Interest; for when a bare Power is given to a Feme by Will,Power to a Feme how it is to be executed. to sell Lands, although she marry she may sell, and may sell the Lands to her Husband, because it was not created by her self out of any Interest of her own. But where a Feme upon a Settlement of her own Estate reserves a Power which flows from an Interest, that Power ought to be executed by the Feme sole, and if by Baron, and Feme it is not good; and yet he said, such Power ought to be taken liberally, though formerly they were taken strictly.

2. Question. If this Lease was a Lease in Possession, inasmuch as it commenceth at the time of the date.

Where a Lease in Possession out of the Reversion as to the Estate of the Rever­sion.For it was said, although an Estate for life were before it, yet it was in possession, in relation to the Estate of the Reversion.

Bridgman doubted whether the Lease was void in that point, but was clear it was in the other point.

Hales said, Both Points are worth Tryal and Argu­ment at Law.

The Chancellor concurred with Bridgman; and the Bill was dismist.

Fuller and others against Lance and others.

FUller being a Goldsmith in London, and being disa­bled, agreed with most of his Creditors to assign over all his Estate upon Oath to several persons in Trust for the payment of his Debts, as far as his Estate would pay, he having such allowance for himself and Family as was agreed upon. And most of the Creditors signed the said Agrée­ment; but some of the persons that signed, finding that Fuller had done some act of violation of the Agreement,Commission of Bankrupt. took out a Commission of Bankrupsie against the said Fuller, and seized all the Estate they could come by, and pretended [Page 19]that some of the Creditors aforesaid that signed the Agreée­ment, and that were not privy to the suing out the Com­mission had notice in due time, though they had neglected the same, and that it was seven Months from the date of the Commission before the Commissioners assigned. And Fuller and other the persons concerned in the first Agrée­ment, and excluded by the Commission of Bankrupsie, be­ing not comprized, as aforesaid, preferred their Bill against the Assignées of the Commission of Bankrupsie, to have the Agréement performed, or at least to be admitted to an equal Dividend with them. But this Court would give no relief therein, and the rather, for that it was made appear that Fuller had made a Sale of some of the Goods he assigned to the Creditors; but dismist the Bill.

Note, That where Committées of a Lunatique sue for any thing in the right of the Lunatique, in such case the Committée as well as the Lunatique are made Parties.

The Lord Chancellor. Windham Justice.
Sir Edward Heath against Henly and Whit­wick. May 25.

THE Plaintiff was Son and Executor of the late Chief Iustice Heath (who was made Chief Iu­stice at Oxon during the difference betwéen the King and Parliament, but never sat as Chief Iustice in Westminster-Hall) And the Bill was to have an Account of Monies received by the Defendants being Pro­thonotaries of the Kings Bench, which was alledged to belong to the said Chief Iustice, and which Monies they by their Office ought to receive for the Chief Iustice by an implied Trust Virtute Officii. A Trust out of the Statute of Limitations. The Defendant pleaded the Sta­tute of Limitations 21 Jac. 16.

Vpon the arguing of this Plea, It was insisted by the Plaintiffs Counsel, that this Trust was not within the said Statute. And it was answered of the other part, that a Guardian was within the said Statute, and he was trusted. Ordered that the Defendants should answer.

The Lord Chancellor. The Master of the Rolls.
Dorothea Dame Darcy against Chaloner Chute, Henry Haughton, and others.

THE Plaintiff being a Widow, and seized of a Ioin­ture worth 700 l. per annum, Mr. Chute the Father made suit to marry her, and she agreéing to it, he before the Marriage agreéd with her by Déed in Writing, that it should be lawful for her, or such as she should appoint, during the Coverture, to receive and dispose of the Rents of her Iointure as she pleased.

The Deed was put in Haughton's hands, he being the Plaintiffs Agent formerly.

Then the Plaintiff and Mr. Chute married, he having first agreéd with Trusteés of hers to settle her a Ioynture; and they lived together ten years, during all which time Haughton received the Rents of the Ladys said Ioynture of 700 l. per annum, and constantly with the approbation of the Plaintiff accounted for, and paid the same to Mr. Chute her Husband. And the Plaintiff all that time never ap­pointed Haughton to receive the Rents for her, nor claimed any benefit by the Agreément left in Haughton's hands; but at the ten years end Mr. Chute dying, having made the Defendant her Son Executor, the Plaintiff exhibited her Bill to have an account from Haughton, and charged 1000 l. to be resting in his hands unaccounted for, that was re­ceived in Mr. Chute her Husbands life time, and she made Title to the same by the said Agreement made by Mr. Chute with her self before Marriage. And upon the hearing (a Case being cited and urged by the Defendants Counsel) the Court declared the aforesaid agréement before Marriage with the Plaintiff her self,Marriage deter­mines an Agree­ment made by Baron with Feme before Marriage. was immediately by the Marri­age extinguished, the Court would not relieve the Plaintiff thereupon: But ordered the Defendant Haughton to ac­count before a Master for what he received after Mr. Chute's death.

The Lord Chancellor. Chief Justice Hide. Chief Baron Hales.
Sir Henry Bellasis and his Wife, against Sir Wil­liam Ermine, June 4.
Upon a Plea.

THE Suit was for a Portion of 8000 l. given to the Plaintiffs Wife. The Defendant pleaded it was given her, provided she did marry with the consent of A. and if not, she should have but 100 l. per annum; and that she married without the consent of A. Ordered that the Plea stand over-ruled.

Where the Con­dition annext to the Gift of a Portion shall de­feat the Portion, and where not.And the Court all declared this Proviso was but in ter­rorem, to make the person careful, and that it would not defeat the Portion.

But it was said in the Case of her Marriage without the consent of A. if the party that gave the Portion had limitted it to another, there it had been otherwise. And in this Case the Wife was not unequally married; For the Plain­tiff is the Heir Apparent at Law of the Lord Bellasis.

The Lord Chancellor.
Pawcy against Bowen. June 26.

A Lease for more years than the Lessor had power for, shall be good for so many years as he had power for.REsolved that where a person hath power to lease for ten years, and he leaseth for twenty years, that the Lease for twenty years shall be good for ten years of the twenty in equity. And it was said to have been so settled several times in this Court.

Crispe and others Executors of Sir Nicholas Crispe against Blake. June 26.

IN 1642. Sir Nicholas Crispe and four others became bound to the Defendants Testator in 1600 l. for the payment of 1000 l. and Interest at six Months end. In­terest was paid till 1644. In Michaelmas 1662. the Defen­dant got Iudgment against Sir Nicholas Crispe, and one other of the Obligors for 1600 l. (being the penalty) Af­terwards there was paid by them, against whom the Iudg­ment was, and the other Obligors, at several times to above 1600 l. And so the Bill was to have the Iudg­ment vacated, and the Bond delivered up, paying so much as would make up the penalty of the Iudgment, and In­terest for the same since the Iudgment.

It was insisted on by the Plaintiffs Counsel that when Iudgment was had on the Bond, it remained no longer a Debt o [...] the Bond, nor was Interest due on the Iudgment; so what was paid after must be taken as paid on the Iudg­ment; and if they had brought that 1600 l. into Court at Law (and offered to pay it before Execution) the Court at Law would have accepted it. And therefore being willing to make up what was paid already the full of the Iudgment and Damages since the Iudgment, ought to be relieved against the Iudgment.

On the Defendants part it was insisted, that there was more Mony due for Interest on the Bond, and that that was paid as well by those Obligors against whom there was no Iudgment, as by those against whom the Iudgment [Page 24]was; and what was paid by those against whom there was no Iudgment, there part of what was paid in by the course of the Court was to be taken as Interest, there being more Interest due on the Bond than the Mony paid; and there is no Equity in this Case to hinder the Defendant from recovering of what he can at Law, there being much more in Conscience due; and if what is justly due be to be received by any course of Law, no Equity ought to hinder it, so as he do not receive more than Principal Interest and Costs, which the Defendant offers to take on Account.

It was replyed by the Plaintiffs Counsel, That one sa­tisfaction by any of the Obligors, shall be a discharge at Law for the rest; and a Release to one Obligor is a dis­charge to all the rest.He that takes a Security by a Penalty ought not to have more. And when a Man takes a Security by a penalty he sets up his Rest there, and makes himself Iudge of what he would have, and ought not to have more. And after a long debate where the Case of Whitch­cot and Underhil was cited, it was ordered that the Plain­tiffs do pay so much, with what was paid, as will make up the Penalty of the Iudgment and Damages at 6 l. per Cent. for the Penalty and Costs here and at Law, and thereupon the Bond to be delivered up, and the Iudgment vacated:Monies paid be­fore actual en­tring of the Iudgment is to be taken as paid on the Bond tho' the Judg­ment be of a Term before the payment. But with this Proviso, that if 250 l. paid in November 1662. were paid before the Iudgment entred into, and the Iudgment entred after of that Term, that that must be taken as paid as Interest, because the Defen­dant received it on the Bond, the Iudgment then not be­ing entred, which a Master is to examine; and if he find it, to allow the same as paid on the Bond for Interest, and the Master to take the Account.

So Judgment on a Bond worse Security than the Bond only. So note, That a Iudgment on a Bond, on which there is more due than the Penalty for Principal and Interest, is worse Security than the Bond only.

The Lord Chancellor.
Smith against Oxenden.

THE Case was, The East-India Company sued their Factor for an Account of 12000 l. in Gold he car­ried hence into the East-India. He upon his Account de­manded (according to the usual Custom) allowance for so much paid for Customs to the King in India. It was in­sisted, that he never paid the Customs there for the Gold, so whether the Factor or the principal Merchant should have the benefit of the Customs was the Question.

And this was referred to Merchants. And two Mer­chants certified, that by the course of Merchants the Factor should retain the benefit of the Non-payment of the Cu­stoms, for that if the principal Freight by his Non-payment of the Customs had béen lost he must have answered for it to the Imployer, and so run the hazard wholly. And in this Case the Factor, by the Law in East-India, had it béen dis­covered that he had concealed the Gold, and not entred it into the Custom Books, was to have lost his life as a Felon.

Two other Merchants certified that the Imployer was to have the benefit of the Non-payment of the Customs:The Factor shall have the benefit of Customs sa­ved and not the Imployer. And upon these Certificates, it was decreéd that the Factor should have the benefit of the Customs, for it was a Duty to be paid, and the Imployer could make no Title to it against him that was in possession; and he that hath Posses­sion hath Right against all but him that hath the very Right. Vide Borr against Vandale.

Randal against Richford. June 2.

A Witness alledged he had mistaken himself at a Com­mission. The Commission being returned, he came to London, and made Oath that he was surprized. A special Commission issued to re-examine the Witnesses, which was done accordingly; but this special Commission was surprized by Motion, by advice of the Master of the Rolls with the sir Clerks, as contrary to the course of the Court.

Chief Justice Hide.
Sheldon against Weldman. October 11.
On a Plea.

THE Bill was to have an Account of Mony deliver­ed by the Plaintiffs Father (whose Executor the Plaintiff was) to the Defendant to compound for the Plaintiffs Fathers Estate (sequestred for Delinquency) at Goldsmiths-Hall.

Mony upon a Trust out of the Statute of Limi­tations.The Defendant pleaded the Statute of Limitation of Ac­counts 21 Jac. 16. Vpon arguing his Plea it was insisted by the Plaintiffs Counsel, That an account for Monies delivered upon a Trust was not within this Statute, and that it had béen so ruled; and thereupon the Plea was over­ruled and the Defendant ordered to answer.

Lord Chancellor Justice Wind­ham. Justice Twisden.And in Trinity Vacation 16 Car. 2. The Case being heard by the Lord Chancellor, Iustice Twisden, and Windham, the two Iudges and the Lord Chancellor declared and were of Opinion, That the Statute of Limitations did not barr this Suit; because it was on a Trust that the Defendant had the Mony for which the Account was sought. But for another reason the Bill was dismist.

The Lord Chancellor. Chief Justice Hide.
Nanney against Martin. October 15.

BAron and Feme have a Decrée for Mony in the right of the Wife, and then the Baron dies; A Question is moved who shall have the benefit of the Decrée, Whether the Wife or the Executor of the Husband.

The benefit of a Decree by Ba­ron and Feme belongs to a Feme, and not to the Executor of the Husband.And this Case being referred to Chief Iustice Hide, he had given his Opinion, that the benefit of the Decrée belongs to the Wife, and that it was so in a Iudgment at Law. And Exception being taken to that Certificate of the Iudge, he refused to hear the matter of the Exception, but left it to the Chancellor; but declared his Opinion was still the same. And 18 Jan. 1663. at the Seal the Lord Chan­cellor would not refer it back, but confirmed the Iudges Certificate.

Chief Justice Hide.
Gervas Scroope an Infant against Sir Adrean Scroope. October 15.

A Bill was to be relieved touching the Manor of Gid­ley in Lincolnshire, and sets forth that Gervas Scroope deceased, Father of the Defendant, and Grandfather of the Plaintiff, was seized in Fée thereof, and devised the same to the Plaintiff and his Heirs, and that the Defendant having gotten all the Writings, laid claim to the same, and got into possession thereof, and did pretend that the said Manor was purchased heretofore in the Name of the said Sir Gervas and him, and to their Heirs, and that so; Sir Gervas had no power, being Iointenant, to devise the same, whereas his, the said Defendants Name was used in the said Convey­ance in Trust for the said Sir Gervas, and the Purchase was made and the Mony paid by Sir Gervas, and that so the [Page 28]Defendants Title was but as a Trustée for Sir Gervas, and cousequently for the Plaintiff to whom Sir Gervas had de­devised the same.

The Defendant pleaded that the Premisses were the 19th of June 13 Car. 1. by good Conveyance in Law well executed for 4600 l. really and bona fide paid, conveyed by J. S. to Sir Gervas Scroope and the Defendant and their Heirs, the Defendant being the Son and Heir apparent of Sir Gervas, and that the said 4600 l. was raised by Sir Gervas by sale of the Lands, which were the ancient Inheritance of the Family, and which, if they had not béen sold, had descended on the Defendant, and averred that all the Courts of the said Manor that were kept in Sir Gervas's Life were kept in as well the Defendants Name as in Sir Gervas's Name, and that the said Conveyance to Sir Gervas and him was really and bona fide without any Trust for Sir Gervas or any other. And that Sir Gervas being dead the Defendant claimed the Premisses by Survivorship, and demanded Iudgment.

The Plaintiff did not attend, but was alledged to be out of Town, and prayed it might stand for another day. But the Court directing the Plea to be opened, which was done, and afterwards read, declared it clearly to be a good Plea, unless the Plaintiff could prove an express Trust; and if he could have done that, he ought to have replyed; but not having replyed, the Plea must be taken to be true; and that albeit the Purchase was made by the Father in his own and his Sons Name,The Father joyns the Son with him in the Purchase, it shall not be presumed a Trust in the Son, unless it be expresly de­clared. it should prima facie be in­tended an advancement for the Son, and not presumed a Trust, unless declared so, and that it was anciently the way to join the Son in a Purchase to avoid Wardship. And the Case of Crisp against Prat, 3 Cro. 550. and Sir Sidney Montagues Case there, were in the Debate of this Case urged, and the Court declared to the Defendants Counsel, this being the Case, that nothing could be said against the Plea, and so allowed it. 17 November, 1663, the Plea was re-heard, and upon Argument on both sides was allowed with double Costs.

The Lord Chancellor. The Master of the Rolls.
Chute against the Lady Dacre, October 23.

THE Defendant having mistaken her self in her An­swer, as was alledged, having therein sworn some­thing which was found afterwards by her to be otherwise, It was alledged by her Counsel, and Affidavit made by her self too for that purpose, that those matters untruly set forth were added in the Margent of the Draught after she had perused it, and so she was thereby surprized: And it was alledged that no Replication was filed prout Certificate, and Affidavit, of notice of this Motion to the other side was read. But the Plaintiff making no defence,Liberty given the Defendant to amend her Answer, she be­ing surprized therein. it was ex parte on the Defendants motion, ordered that she be at li­berty to amend her Auswer in the said matters mistaken. And it was said that like liberty had beén given to a De­fendant to amend his Answer before Replication in a Case betweén Chettle and Chettle in the Lord Coventry's time.

At the Rolls, the Master of the Rolls.
Manning against Burges. October 26.

A Mortgage was forfeited, the Mortgagor afterwards méeting the Mortgagée, said, I have Monies, how I will come and redeem the Mortgage. The Mortgagee said to him, He would hold the mortgaged Premisses as long as he could, and then when he could hold them no longer let the Divel take them if he would. A Mortgagor refusing to re­ceive his Mony on Tender after Forfeiture, shall lose his Interest from the Ten­der. And afterwards the Mort­gagor went to the Mortgagées House with mony more than sufficient to redéem the Mortgage, and tendred it there; but it did not appear that the Mortgageé was within, or that the Tender was made to him: And it was decreéd a Re­demption, and the Defendant to have no Interest from the time of the Tender, because of his willfulness.

A like Case between Peckham and Legay about a year since.

The Lord Chancellor. The Master of the Rolls.
Borr against Vandal. October 27.

THE Factor had stollen the Custom of divers Goods of which the Bill was to have an account, and to discover whether he paid those Customs or no. The De­fendant by Answer insisted that he was not bound to answer that part of the Bill, for that the Plaintiff, who was the Imployer, was not intituled to those Customs, nor any ad­vantage whether they were paid or not. Exception being taken to this Answer; The Master certified the Answer sufficient. Exceptions being taken to the Report: The Cause came now to be heard upon that. And the Cause of Smith and Oxenden, Whether Factor or Imployer shall have the benefit of the Customs stollen by the Factor. fol. 25. was cited. But on the Plain­tiffs side, it was insisted that this Case was not like that, for that was of Customs stolen from a foreign King, and this was of Customs stolen from our own King, and that it would be of evil consequence, and an Encouragement to evil Factors, if the Court should give an Opinion for them in a matter of Fraud, as this was. And whereas it was insisted by the Defendants Counsel, That it was the course of Merchants that Factors should have the benefit of Customs themselves, and not the Principals, because the Penalty would fall on the Factor if discovered: It was declared that could not be called a Custom, being grounded upon Fraud. And therefore the Court ordered that the De­fendant should answer whether he paid the Customs or not. Vide Smith against Oxenden, fol. 25.

The Lord Chancellor.
Rich against Jaquis. October 29.

RIch was Plaintiff upon a Certiorari Bill to remove a Cause out of the Mayors Court, his Witnesses being out of that Iurisdiction, and the Bill here was for an Account touching other matters. Witnesses being examin­ed the Defendant moved for a Procedendo, and insisted up­on it, for that if the Cause should be heard here, he could not be relieved, not having any Bill here, being here but Defendant, though Plaintiff in the Mayors Court.

Certiorari Bill brought to hearing.Whereunto the Plaintiffs Counsel insisted, that no Pro­cedendo ought to be, for that this Bill containing other matters could not be determined upon the Bill in the Mayors Court, and that the Bill could not be divided; and that the Plaintiff in the Mayors Court might file his Bill in the Mayors Court in this Court, and direct it to the Chancellor, and have the same remedy here as he could there.

Ordered that the Cause stand to be heard on the Bill in this Court. And after hearing the Cause was dismist out of this Court.

The Lord Chancellor.
Jew against Thirkwell. October 30.

THE Plaintiff was Lesseé of divers Lands, where­upon an intire Rent was reserved. Afterwards the Inhabitants of the Town, where part of the Lands lay, claimed Right of Common in part of the Lands so let; and upon a Tryal of their Right are found to have Right of Common there. Now this being but a Right of Com­mon recovered, is no Eviction of the Land in Law, be­cause the Soil was not recovered, and so no Apportionment could be at Law; and therefore the Bill was to have the Rent apportioned in Equity.

Apportioment of Rent in Equi­ty where it can­not be in Law.And Serjeant Maynard insisted, that such Apportionment had frequently been Decréed here. But in this Case it ap­pearing, that notwithstanding the Right of Common the Lands were worth the Rent reserved, and better, the Court would not Decrée it, but the Bill was dismist.

Wolestoncroft against Long. November 6.

A Debtor upon Bonds and simple Contract makes a Conveyance of Lands upon Trust to sell for pay­ment of his Debts. It was declared to be the constant practice,Debts on Bond and simple Con­tract, to be paid in equal Pro­portion where Lands are to be sold for payment of Debts. So of Debts and Le­gacies. and so ruled and decréed here, that all the Debts should be paid in proportion; and that: if the Lands were not sufficient to pay all, all should lose in proportion. And so it is where Lands are given to pay Debts and Legacies, they shall be paid in equal proportion, because the Land is made lyable to the one as well as the other by the Debtor himself. But otherwise it is in Case of Debts and Judg­ments, that in their own nature charge the Lands.

The Lord Chancellor.
Baker against Beaumont. November. 6.

ONe in the Fleet for breach of a Decreé, for not vacating of a Iudgment, by Iudgment in a seigned Action in the Kings Bench gets himself turned over thither, and so had liberty to go abroad, and got the Defendant in the Iudgment taken in Execution in Exon, and on a Habeas Corpus he was brought hither, and recommitted to the Fleet, and confined to his Chamber, and a Habeas Corpus with a long Return for the Defendant in the Iudgment, granted.

The Lord Chancellor. The Master of the Rolls.
Ayre against Ayre. November 10.

THE Plaintiff being the Widow of her Husband, sued the Defendant, who was his Executor, to have al­lowance of a satisfaction for several Debts of the Testators (which she, having possest her self of his Estate, had paid) the Excutor having gotten all the Estate out of her hands. It was much controverted, Whether she could be helpt herein;A Widow pay­ing just Debts of her Husband out of his Estate in her hands, shall have al­lowance for the same from the Executor. for though Executor of his own wrong shall be allowed all payments made to any but himself, yet she was not Executrix of her own wrong; for where there is a rightful Executor, as here, there can be no Executor de son tort. Yet it resembled that Case; and the Court doubting much what to do in this Case, decreed by consent of Counsel, That she should be allowed for all payments that she had made which were incumbent on the Executor to pay accor­ding to the course of Law; but that if she had made any pay­ments out of Order and Rule that the Law left the Exe­cutor lyable to, that such payments she should not be al­lowed for, if they were to the prejudice of the Executors.

In Court.
Sackvile against Dobson. November 10.

LImitation of the Trust of a Term to Husband and Wife and the longest liver of them, for life, and after to the eldest Issue of them, none being then born;Limitation to Husband and Wife is to be ac­counted as one Limitation in the Trust of a Term. a good Limitation. So the Limitation to Husband and Wife is but one Limitation; and so it was admitted by Counsel, it being not controverted; for though the Trust of a Term according to the Rule in Goring and Bickerstaffs Case, fol. 4. may be limited to divers persons that are in being one after another, because the same is transferrable, yet it cannot he good beyond two Limitations to a third person not inPerpetuity. [Page 34]being: Ergo, The Limitation to Husband and Wife, and longest liver of them, was admitted to be but one Limita­tion in this Case.

The Lord Chancellor. Justice Tirrel.
More against Mayhow. November 10.

THE Plaintiffs Bill was to be relieved upon a Trust, and charged the Defendant with notice of that Trust, and that he had gotten a Conveyance of the Lands upon which the Trust was had; and that at or before his taking the said Conveyance, he had notice of the said Trust for the Plaintiff.

The Defendant by way of Answer denied that he had any notice of the Trust at the time of his Purchase or Contract, and pleaded that he was a Purchaser for a valuable consi­deration. It was insisted the Plea was not good because he did not say what the valuable consideration was;Purchaser with­out notice. for 5 s. was a valuable consideration, but yet no equitable con­sideration.

The Court declared that the Plea in this Case was well enough.

It was farther insisted, that the Plea was founded upon the Answer, viz. That the Defendant had no notice, &c. And that the point of notice was not well answered, in that the Defendant denied notice at the time of the Purchase only, and the word Purchase might be understood when the Contract for the Purchase was made, and it might be he had no notice then, and might have notice after, before, or at seal­ing of the Conveyance:Notice of an In­cumbrance any time before the Conveyance ex­ecuted shall bind him. And if there was any notice before the Conveyance to him executed, that should charge the De­fendant: And that it was so lately decréed in a Cause betwéen Sir William Wheeler and ....... .......... and Yar­raway, and Nicholas, by the Lord Chancellor. And so the Plea was over-ruled.

Garfoot against Garfoot. November 10.
On a Demurrer.

Lands devised to be sold by Executor who dies; the Bill brought against the Heir, who demurs, and over-ruled.LAnds were devised to the Feme for Life, afterwards to be sold by the Executor for younger Childrens Por­tions; the Executor dies, the Feme dies; the younger Children prefer their Bill against the Heir. He demurs, be­cause but an Authority in the Executor, which is dead with them; but the Demurrer was over-ruled.

Regnes against Lewis. November 17.
On a Demurrer.

Wife sues for separate Mainte­nance without the Husband.THE Demurrer was, for that a Feme Covert sued with­out her Husband. But she being to be relieved touch­ing a separate Maintenance agréed to by her Husband, the Court overruled the Demurrer, declaring the Feme might sue without her Husband.

The Lord Chancellor. Baron Turner.
Churchil against Grove and others. Nov. 24.
On a Plea.

THE Plaintiff having a Iudgment and a Mortgage, ex­hibited his Bill against the Mortgagor, and Conusee of a Statute by the Mortgagor, to have a discovery what is due on the Statute, that being precedent to the Plain­tiffs Securities, and upon payment to have the same set aside.

The Cognizée pleaded that he having extended his Sta­tute, and the Cognizor and he stated Accounts, and the sum of 3000 l. being due to him, he in consideration there­of had an absolute Conveyance of part of the extended Lands, and shewed what Lands were conveyed to him by the Cognizor, and that thereupon he assigned the residue of the extended Lands to the Cognizor, and that so he was a Purchaser without notice of the Plaintiffs Title for a va­luable consideration.

It was also pleaded that the Cognizor was in Execution on the Plaintiffs Iudgment, and so the Plaintiff could not extend the Lands, nor the Lands be lyable during the life of the Cognizor.

On the Plaintiffs part, it was to the first point insisted, That it did not appear that the Defendant was a Pur­chaser, there being no new Mony paid upon the executing the Conveyance, but coming in for the consideration of Mony due on the Statute was no Purchase. And that it was Common Equity for him that had the subsequent Iudgment to be relieved against the precedent Statute on payment of what was due, and that there was, for ought ap­peared, no more there; and that the Account made up be­twéen the Cognizor and Cognizée on the pretended Pur­chase, ought not to affect the Plaintiff; and that therefore the Defendants Purchase, being subsequent to the Plain­tiffs Security, ought not to be aided by the Statute; and that the Plaintiffs Iudgment being of Record, the De­fendant was bound to take notice thereof at his peril; and that in this Case the Defendant ought not to protect his pretended subsequent Purchase by his precedent Statute, but that he ought, upon payment of the Statute, to yield Pos­session to the Plaintiff.

But this was strongly opposed by the Defendants Coun­sel, who insisted that the Defendat was a Purchaser, and that though no new Mony was advanced on the Purchase, yet he assigned over and parted with part of the extended Lands in consideration thereof, which was as valuable as Mony.Purchaser shall protect his Pur­chase by buying in an eigne In­cumbrance. And that it was the constant Iustice of this Court, That if a Purchaser bona fide did buy in an eigne Incum­brance, Statute or Iudgment, and there were a Iudgment or Statute mesne betwéen that and his Purchase, of which he had no notice at his Purchase, That he should protect his Purchase with the eigne Incumbrance so bought in. And it was insisted, that though Iudgments were on Re­cord, [Page 37]and a Purchaser is bound to take notice thereof at Law;Purchaser shall not be affected by a Judgment in Equity with­out express no­tice of it before the Purchase. yet in Equity where the Cognizeé of a Iudgment comes to be helpt to extend his Iudgment against a Pur­chaser, he must prove express notice of the Iudgment in the Purchaser, or else shall never be relieved against the Purchaser. And upon this Point the Plea was allowed. And as to the other Point, That the Cognizor being in Execution upon the Iudgment, and so the Land not to be charged during his life; It was strongly insisted, that was no good Exception in Equity,Whether the Cognizee of a Judgment ha­ving the Cogni­zor in Execu­tion can bring a Bill whilst he lives to charge the Lands. for that the Bill was to dis­cover Incumbrances, which the Plaintiff could not have after the Cognizors death. And it was positively affirmed, that it had béen ruled here, That a Bill will lye notwith­standing thé Debtor was in Execution upon the Iudgment. But this Point was not much debated. Howbeit the Court inclined in Opinion, That this part of the Plea was not good.

Williams against Arthur. November 24.
On a Plea and Demurrer.

A Decretal Order was produced in 1657. for several matters; and then after the Cause had depended on account threé years, a Decrée was drawn,Part of the mat­ters being omit­ted in drawing up the Decree, a Bill of Reviver lyeth to revive those matters. wherein the first decretal Order was recited, but part of the matter thereby decreed was omitted in the decretal part of the De­creé it self; and soon after the Decrée signed and inrolled the Defendant died: A Scire Facias was sued to revive, and in the prosecution thereupon the Plaintiff discovered the omission, and so could not have the benefit of that part which was omitted in the Decrée that way, and the Defen­dant being dead could not help that Omission, by a motion upon the surprize. The Bill now was a Bill of Reviver to revive so much of the Decrée as was omitted as was alledged; howheit in truth the Bill was to the whole Decreé.

It was pleaded that the Decreé being inrolled, a Bill of Reviver did not lie, but a Scire Facias. Ordered that the Plea and Demurrer be overruled.

Chief Justice Foster. The Master of the Rolls.
Merry against Abney the Father, and Abney the Son, and Kendal. November 26.
All which were heard on Abney the Sons Plea, about Trin. 12 Car. 2. and the same Cause heard this day.

KEndal contracted with the Plaintiff to sell him cer­tain Lands in Leicestershire. Afterward Abney the Father, who lived near the Lands, in behalf of Abney the Son (a Merchant in London) purchaseth those Lands of Kendal, and had a Conveyance from Kendal to Abney the Son and his Heirs. The Plaintiffs Bill was to be relieved upon his Contract with Kendal, and against the Conveyance to Abney, and charged notice of his Contract to both the Abneys, Abney the Son, pleads himself to be a Purchaser bona fide, without any notice of Kendals Contract with the Plaintiff, and without any Trust for his Father.

The Court declared, That notice to the Father in this case was notice to the Son, and should affect the Son, who was the Purchaser.Notice to him that purchaseth for another shall affect the Pur­chaser himself. So that notice of a dormant Incum­brance, to a party that purchaseth for another, shall affect the very Purchaser: And accordingly was this Cause decréed, it appearing at the hearing that Abney the Father had notice of Merry's Contract before he purchased for his Son.

The Master of the Rolls.
Seabourne against Blackstone. November 26.

THE Wife received mony due on a Bond entred into by one to her Husband: She usually received and paid mony: He got Iudgment on the Bond; Ordered that he acknowledge satisfaction thereupon.

The Lord Chancellor. The Master of the Rolls.
Davie against Beardsham and his Wife.

DAvie agreés for the Purchase of certain Copyhold Lands, which were surrendred out of Court to his use; but before Admittance he dies, having other Copy­holds, and having made his Will after the said Contract, and thereby devised to the Plaintiff (who was then and at his death his visible Heir) all his Copyholds after his death; his Wife being priviment enseint at his death is de­livered of the Defendants Wife, who then becomes the Heir of the Devisor. The Plaintiff taking it for granted that the Copyholds so contracted for, did not pass by the Will, suffered the Heir to be admitted thereunto, and held the same of the Heir for twenty years, and paid her Rent for that time, and had agreéd so to do as long as he should hold them. Afterwards differences arising betwéen the Heir and him about other matters, the Plaintiff exhibited his Bill (inter alia) to have those Copyhold Lands de­creed him. And it was declared upon the hearing, by the Court,Lands contract­ed for, pass by Devise of the Purchaser. That it was clear the said Copyholds so agreed for did pass by the Will to the Plaintiff, for that the Pur­chaser had an Equity to recover the Land, and the Vendor stood trusted for the Purchaser, and as he should appoint, till a Conveyance executed. And the Case of the Lady Fo­haine about 1657. was cited, where it was ruled,Vendor after Contract to pur­chase stands trusted for Ven­dee. That if upon Articles for a Purchase, the Purchaser dyeth, and de­viseth the Land before the Conveyance executed, the Land passeth in Equity. But in the principal Case, inasmuch as the Plaintiff had admitted the Title to be in the Heir, and paid her Rent, and agreéd so to do, the Court would not decreé it; but declared if the Plaintiff had come in time it was proper to be decréed.

Jones against Done.

IN which Case a Decrée was made, whereby it was decreéd,An Office ex­tendible. That an Office was extendible in Law or Equity.

Bishop against Bishop.

AN Award confirmed in part,Award. and made void in part.

The Lord Chancellor. The Master of the Rolls.
Guilbert against Hawles. 12 & 17 Feb. 14 Car. 2.

THE Bill was to be relieved against an Action for Rent, and at the hearing of the Cause it was decreéd to account, and that the Plaintiff should pay what was due to the Desendant on account; the Account was stated by a Master;After a Decree the Plaintiff may not dismiss his Bill. then the Plaintiff moved to dismiss his Bill pay­ing what Costs the Court would assess, which was opposed, for that the Iudgment of the Court being given, the Plaintiff ought not to abuse the Court and depart from it; and the Case of Wingfield and Thomas was cited, whereby upon an Obligation here the Plaintiff here was decréed to pay Princi­pal, Damages and Vse, and afterwards the Plaintiff there would have dismist his Bill, but it was denyed.

Churchil insisted that Quilibet potest renunciari juri pro se introducto.

The Master of the Rolls directed it to be moved before the Chancellor, and 17 Feb. it being moved before him, it was denyed, and the said Chancellor and Iudge Brown in 17 Car. 2. betwéen cheatly and Packington gave the like Rule in the same Case.

Edgworth against Davies. 1 July 14 Car. 2.
Upon a Plea.

THE Bill was to have an account of the profits of Land which the Defendant had received on Trust for the Plaintiff during his minority, and for monies re­ceived upon Bonds, belonging to the Plaintiff, and for Wri­tings, &c. The Defendant pleaded that the Lands lay in Cheshire, and that the Defendant lived in Cheshire in the [Page 41]County Palatine of Chester and Lancashire, and therefore not within the Iurisdiction of this Court. This Plea having béen formerly argued before Iudges in absence of the Chancellor, They ordered Presidents to be produced, which were as follows: Hern against Smith 12 Eliz. for that the Lands lay within the Dutchy, was over ruled. Sherborn against Vaughan, 13 May 14 Car. the Bill was to be re­lieved on Trust; the Defendant pleaded the Iurisdiction of the Dutchy, this was ex parte, but in my Lord Coventry's time. Hales against Daniel 24 Octob. Car. 1. ad idem. In which Case the thing being for a personal Estate the Court over ruled the Plea of the County Palatine; and in the same Cause Mr. Page, to whom it was referred to certifie, reported upon the view of Presidents, that the Iurisdiction of the Counties Palatine was allowable betweén parties dwelling in the same County and for Lands there,Plea. Jurisdicti­on of the Dutchy overruled with­out Costs. and for matters local. And in the Argument of the principal Case mas cited the Case of Sir John Egerton and the Earl of Dar­by; and upon long Debate in the principal Case the Plea was over-ruled, but without Costs.

The Lord Chancellor. Baron Turner.
Clark against the Lord Angier. 3 July, 14 Car. 2.
Upon a Demurrer.

A Legacy being given to a Feme Covert, who was Covert when the Legacy was given, the Husband of the Wife without her, exhibits a Bill for it, because, the Wife was no party; The Defendant demurred,Where a Feme Covert ought to join in a Title, Suit, &c. and where not. for of things méerly in Action belonging to the Wife, as a Bond, &c. she ought to join in Suit; but otherwise it is of a Rent running in the Wifes Right after Marriage. If the Hus­band alone should sue the Bond and be non-suited or dis­missed, that will not conclude the Case; but if he dye before Iudgment or Decrée, the Wife cannot revive the Suit.

Parker against Palmer.
Upon an Appeal from a Decree at the Rolls. 27 Januar. 14 Car. 2.

PArker sold a Lease, which he had from the Dean and Chapter for thrée Lives, to Palmer, &c. and it was agreed Palmer should pay 4320 l. for it. After the Defen­dant agréed with the Plaintiff that if he would abate him 420 l. he would reconvey the Lease whenever the King and Dean and Chapter were restored. The Plaintiff there­upon abated the 420 l. and the King and Church being now restored, the Plaintiff exhibited his Bill for the Lease, which the Master of the Rolls decréed to him.

Agreement tho' the Considerati­ons be unequal, decreed. Note, That this was decréed against the Son of the Purchaser, the Father being dead.

The Question was, Whether he came in by Settlement, or as Occupant?

Vpon Appeal to this Decrée it was affirmed by the Lord Chancellor and Bridgman. And in this Case it was objected, that this Court ought not to decreé that, for 'twas but in the nature of a Wager, and the consideration unequal and penal, and that an Action more properly lay, and that it was at the discretion of the Court to decree an agréement, or not, when it ought to be performed ex debito Justitiae: Yet it was Decréed ut supra.

The Lord Chancellor.
Savil against Darrey.

Mony decreed by Rule of Court to be paid before a Bill of Review: But upon giving Se­curity to pay it, the Rule dis­pensed with. A Decrée was obtained for a great Sum of Mony: A Bill of Review was brought, and new matter as­signed. The Rule of Court was pleaded, that the Defen­dant ought first to pay the Mony before the Bill should be brought into Court. Let him give good Security for the Mony, and we will dispense with the Rule. The like Case betwéen Baston and Biron, by Order of the House of Péers, about 1662.

The Master of the Rolls.
Curtess against Smalridge. January 26.

THE Defendants Wife had pawned her Husbands Plate to the Plaintiff for 110 l. The Defendant in Trover for this recovered 115 l. damages against the Plaintiff, and Iudgment for it. A Bill was to be relieved against this Iudgment, for that the Defendant was privy to the pawning, and had the 110 l. and the proofs being read, it appeared that the Defendant had confest so much, which if it had been proved at the Trial, it was agreed the Defendant could not have reco­vered in the Trover, and there being no proof now that the Defendant at Law could not by reason of any accident have his Witnesses at the Trial, the Court would not on any neglect of his grant a new Trial.

Rule or Maxim. Nothing a ground for a new Trial after Judgment, that is not ground for a Bill of Re­view.And it was insisted upon as a Rule, that nothing shall be a ground to direct a new Trial to avoid a Iudgment at Law, that would not be ground for a Bill of Review to reverse a Decree, and a Confession subsequent to a Decree no ground for a Bill of Review; nor is the want of any Evidence or Matter which might have been used in the first [Page 44]cause, and of which the Party had then knowledge, any ground for a Bill of Review: And here is no proof but that the Plaintiff might have had the Witnesses that were exa­mined here at the Trial; and so this Cause was dismist.

The Lord Chancellor. Baron Turner.
Read against Hambey. February 18.
On a Demurrer.

THE Bill was to explain a Decree, wherein the Case was, One seised of the Manor of Wrangle worth near about 110 l. per annum, and another of a Farm in Wrangle held of the same Manor, worth 250 l. per annum, and the Fee of both came after into one Persons Hands, he having articled to settle the Manor of Wrangle worth 110 l. per annum with the Improvements. It was on the Articles decreed, his Heir should convey the Manor of Wrangle, with all the Improvements to the Plaintiff in the first Suit; And if the Manor was not worth 110 l. per annum, it should be made up out of the other Lands. By this Decree and unity of possession of the Manor and Farm the Plaintiff claimed all the Manor and Farm, and the Bill being to explain the Decree, charged the Farm to be worth 250 l. per annum, and the Manor 110 l. per annum, and therefore prayed to have the Decree explained, whether the Decree intended all, or only the Manor according to the Articles. The Demurrer was, for that it was an Ori­ginal Bill, and sought to alter or change the Decree.

For the Plaintiff it was insisted, That the Plaintiff was without any possibility of help but by this Bill, for that it being to be relieved upon a Fact not in Issue, nor appear­ing in the former Cause, a Bill of Review would not lie for it; and that the Defendant by having demurred, had admitted the Bill to be true, and then the Case was, that the Lands claimed without the Decree were worth 400 l. per annum, whereas the Articles on which the Decree was founded, were but for 110 l. per annum, and therefore it was strongly urged, that they ought to answer.

Original Bill not to be admitted to explain a De­cree upon a Fact precedent.For the Defendant it was replied, that no Original Bill ought to explain a Decree upon any matter precedent to the Decree; and the consequence of that was alledged to be dangerous; for it would be introductive of a means to blemish and hinder the execution of a Decree. And as to the hardship of the Decree, or intent of it, it was insisted, that that would be fit for determination upon an Execution for non-performance, where the Defendant might set out what he had to say for his excuse, and then it would be proper for the Court to declare what was the intent of the De­cree, and that the Iustice or injustice of the Decree might then be determined. And of this Opinion the Court seem­ed to be. But the Plaintiffs Councel insisting, that the Defendant would be bound in a Prosecution on the De­cree by the Letter of it, and could not then put any inter­pretation on it against the Letter of it, they therefore pray­ed leave of the Court to set forth the Special Matter on Examination; which the Court would not give an Order for. And as to the Plaintiffs Objection, that the Demurrer ad­mitted the Bill, and so ought to have an Answer, because the Manor and Lands were of the value, ut supra, It was answered by the Defendants Councel,Non debet alli­gari quod proba­tum non relevat Alligari non debuit, quod probatum non relevat, and the Demurrer was allow­ed. Then the Plaintiffs Councel prayed the signing and inrolling of the dismission on the Demurrer might be stayed till the Plaintiff was examined on Interrogatories for breach of the Decree, &c. But the Court denied it.

Bawtrey and his Wife against Ibson. May 4.

WIlliam Ibson being possessed of a Term for years from the Vicars Choral of York, as­signed the same to Trustees, and then buys the Inheritance from the Trustees for sale of Church Lands: And before Marriage covenants to stand seised to the use of Himself and Wife for life, for a Iointure.

In 1659. William Ibson dyed, having made his Will; After his death his Relict entred and held the Lands, and then upon agreement with his Executors for Mony paid, re­leased to them the Personal Estate of the Testator, and all demands for the same. Soon after the King being restored, the Title of the Inheritance under the said Purchase became void. The Widow married the Plaintiff, and they two brought their Bill against the Executors of William Ibson and the Assignees and Trustees of the Lease, and it was to the end that though the Inheritance was evicted they might hold for so long of the Term as the Ioynturess should live,A Release set a­side by a subse­quent Accident having relation to the Original Equity. and that the Release might not bar her of that, because not intended when the Release was given, nor was the Lease then looked on as part of the Personal Estate.

[Page 47] 1. Quest. was, Whether the Inheritance being gone, the Lease, which was to attend it, should go now according to the use in the Covenant to stand seised?

Resolved in this Case, It being a Settlement in Mar­riage, and so on a Consideration, it should go to the Wife for so many years as she lived. But it was said, it would have been an other Case between the Heir and Executor of the Covenantees.

A. seised of a Term for years, purchases the fee and then settles on his Wife for Jointure, & dies, the Wife releases to the Executors all her right to the Personal E­state, and after­wards the Fee is evicted, and notwithstanding the release the Wife decreed to hold during the Term. 2. Quest. If the Release of the Demands to the Per­sonal Estate should bar the Feme of the benefit of the Term?

And it appearing by the proof that the Agreement which begot the Release, was before the Title to the Inheritance was avoided, and concerning that which was then looked upon as Personal Estate, and not touching the Lease, and that not­withstanding the Release the Feme continued the Possession: It was resolved the Release should not bar or prejudice the Plaintiffs Title in right to the Lease. And it was decreed that the Plaintiff should hold for so many years as she lived, and that if the Lease were renewed she paying propor­tionably to her Estate for life, that the Executor should hold for so many years as she lived, and then to go to the Executors.

The Lord Chancellor. Judge Brown. The Master of the Rolls.
Kinaston against Maynwearing. May 4.

THE Plaintiffs were the Children of the Defendants Sister, and the Defendants Mother, during his minority, as his Guardian managed his Estate. And as to the Lands in question, it was pretended those were set­led by the Defendants Father on the Plaintiffs Mother, being the Defendants Sister; and the Defendants Mo­ther and Guardian for about two years before the Plaintiffs Mothers marriage put her into possession of those Lands, [Page 48]and upon her marriage articled that those Lands should be setled on her and her Heirs; and to those Articles the De­fendant, then an Infant,Equity raised out of a Deed which was not proved. was a Witness. Upon this matter (tho' there was no proof of the Deed, whereby it was pretended the Defendants Father setled the Lands upon the Plaintiffs Mother) the Court decreed against the De­fendant upon colour of Equity for want of the Deed, and yet there was no proof of a Deed, which was conceived very hard, for the Court to raise an Equity out of a Deed when it was not proved.

The Lord Chancellor. The Master of the Rolls.
Thirveton against Collyer. May 11.

THE Bill was to have a Decree for an Inclosure upon an Agreement. It appeared by the Bill, that there were to be eighteen Allotments, and there were but fifteen Parties to the Suit: And so it was objected by the Defen­dants, that all the Parties to the Agreement, were not Parties to the Suit; and also that there were other Per­sons that claimed Common in the Ground to be inclosed that were not Parties, either to the Agreement or Suit; and so to decree that Agreement would be to do a mani­fest Wrong, and be an occasion of Suits and Quarrels.

Whereunto it was answered by the Plaintiffs, That tho' there were eighteen shares, some of the Persons were to have two shares, so as that made up the eighteen, and that there were others had Common but by Vicinage; but no­thing of this appear'd to be alledged by the Plaintiffs.

Agreement to inclose Com­mon, Parties that have Interest in the Common, and not privy to the Agreement shall not be bound.It was decreed nevertheless, That the Agreement for the Inclosure should be performed, and a Commission was awarded to set out each Persons Title. And the Court de­creed, That if there were any that had Interest, and were not Parties to the Agreement they could not be bound, and so at no prejudice: But however it should not be in the power of one or two wilful Persons to oppose a Publick Good.

The Lord Chancellor. The Master of the Rolls. Justice Windham.
Goodrick against Brown. May 11.

• Fines pursuant to a Decree shall work only accor­ding to the De­cree.
  1. REsolved, That whereas by a Decree of this Court a Fine was levied to a particular end and purpose, which would operate farther in Point of Law than to that end which the Decree ordered it, That such Fine should not be suffered in Equity to work farther than the Decree in­tended.
• Fine and Reco­very shall work on a Trust as on an Estate at Law.
  2. That the Fine or Recovery of a Cestui que Trust should bar and transfer the Trust, as it should an Estate at Law, if it were upon a Consideration: But otherwise Iustice Windham doubted of it; for he said he looked upon this Court as remedial to those that come in upon a Con­sideration, &c.
• Equity only remediable to those that come in upon conside­ration.
  3. That whereas the Person that suffered the Recovery was Tenant for life, in point of Law, and there had been an Agreement precedent to the Recovery, by the Ancestor that was dead, for the setling of the Premises, so as to have made the Tenant for life Tenant in Tail, That the Recovery should be good in Equity, and should work upon the Agreement.

A wilful Forfei­ture by suffering a Recovery in point of Law supplied and holpen in Equi­ty.Against which it was objected, That the Recovery was a wilful Forfeiture in point of Law, and was voluntary, and no consideration; and so the truth appeared, that the De­fendant was as near in Blood to the first Ancestor as the Plaintiff; and if this Court would maintain a voluntary Recovery of a Trust raised upon a Conveyance, there was not so much in this Case, for here was but an Agreement, and tho' that Agreement might upon a Bill have been decreed, yet there being never any such Bill, the Recovery ought not to be supported. As to this point and the second the Iudge would not deliver any Opinion, but the Court de­creed it.

At the Rolls. The Master of the Rolls.
Scot against Rayner. May 11.

Issue, whether a person to whom an other had got Administration, was dead or not.THE Defendant had sued the Plaintiff at Law on a single Bond entred into by the Plaintiff to the De­fendants Husband, the Defendant suing there as Admini­stratrix to her late Husband. The Bill here was, That in truth the Defendants Husband was not dead, and there ap­pearing some probable Evidence that he was not dead, but concealed himself, and the Defendant pending this Suit, having got Iudgment against the Plaintiff, the Court awarded an Injunction to stay Execution, and directed a Trial at Law to be, whether the Defendants Husband was dead, or not.

The Lord Chancellor. Judge Brown.
Wan against Lake. May 12.
On a Demurrer.

THE Demurrer was to a Subpoena in nature of a Scire fac', and it was because he that brought the Subpoena did not thereby alledge himself to be Heir or Exe­cutor to him that had the Decree.

A Subpoena no Record, nor ought to be de­murred unto.Resolved that there was never any Demurrer of this na­ture before: And the Subpoena was no Record, nor any where filed, and so not to be demurred to; But the Cause was to be shewed upon the Return of the Writ on the Or­der, and the Order did mention him that brought the Writ, to be both Heir and Executor; so this Demurrer was conceived very ridiculous and over-ruled.

The Lord Chancellor. Judge Brown.
Freak against Hearsey. May 12.
On a Demurrer.

Executor of the Mortgagee ought to be a Party where the Heir was to have the Mony paid, or the Mortgage fore­closed.THE Heir of the Mortgagee exhibited a Bill to have the Mortgagor pay the Mony, or to be decreed to make farther Assurance, and be fore-closed of Redemption. The Demurrer was, because the Executor of the Mortgagee, who might have a Title to the Mortgage Mony, was no Party; and the Demurrer was allowed.

In Court. The Master of the Rolls.
Glover against Portington. May 14.

JOss Glover (the Plaintiffs Father) for securing 50 l. per annum to Ano his Mother-in-Law for life, in lieu of 50 l. per annum which she had chargable on other Lands of his which he was about to sell, 11 May, 13 Car. 1. surrenders certain Copyhold Lands (of Gavelkind) to Thomas Roll (Brother of Ann) and his Heirs in Trust for Ann, upon condition, that if Joss Glover, his Heirs or Assigns, paid Ann 50 l. per annum during life, the Surren­der to be void. Thomas Roll was admitted; Joss Glover failing to pay the 50 l. per annum, 4 July, 20 Car. 1. Ro­bert surrendred the Premises to the use of Ann for life, the Reversion to himself and his Heirs (but in trust for her and her Heirs) She was admitted: Thomas Roll died, the Pre­mises descended to his Children and Grandchildren, some whereof yet Infants, and one a Lunatick. 22 Jan. 1651. Ann by Will directed that the Arrears of the 50 l. per an­num should be paid to her Executors (which the Defendant Portington is) to such purpose as therein is expressed, and [Page 52]declared that her Nephews the Sons and Grandchildren of Robert should permit her Executors to receive the Rents and Profits towards payment of Legacies, and appoint her said Nephew and Grandchildren, that if the Plaintiff (be­ing Heir of Joss Glover) should within three years after her death pay her Executor all Arrears of the 50 l. per annum, that they should surrender to the Plaintiff and his Heirs, and remit the Plaintiff 100 l thereof, and the Interest of the whole, so as he paid the Arrears in three years, and declared that if the Plaintiff fail'd to pay the Arrears in three years, the Premises should be surrendred to her Executor; and the Arrears being paid, she wills her Executor to pay the overplus to the Plaintiff, and to surrender to him: And in July 1654. Ann died, and in Febr. next following, the Bill was exhibited to have a discovery of what was paid, and that paying all Arrears but the 100 l. and Interest, he might have a Surrender from Rolls, who claimed the Estate to their own use. This Cause was through Infancy of the Defendant so delayed, that their Answers could not be got­ten, and through absence of the Plaintiff out of England which was nigh ten years; and now it was decreed, that if the Plaintiff would redeem, he should pay all the Arrears and Interest.

Sergeant Fountain drew a Petition to the Master of the Rolls to Rehear it on the point of Interest, and after­wards moved it in Court; and the Lord Keeper (the Master of the Rolls being present) recommended it to him to Rehear it;Mortgagee re­mits by Will partof the Mort­gage Mony, and all the Interest if the rest be paid in three years. The Mortgagor failing to pay within 3 years loses the benefit of the bequest. and as to the point of the 100 l. of the Prin­pal which was to be abated by Will, the Bill came within six months after the death of Ann, and it was not safe to go to Hearing without the Trustees, whereby to have a Surrender, and they were in Infancy and Lunatick, which was the principal reason the Cause depended so long. Sergeant Fountain did upon a Discourse between him and A. B. agree it was against the Plaintiff as to the 100 l. (tho Churchil was clear of another Opinion,) for Sergeant Fountain said, That it being a voluntary Conditional Gift, the Plaintiff ought, if he would have the benefit of it, to have performed it by payment within three years, and sought a reconveyance after. But as to the matter of the In­terest, that was stronger, for that the Will appointed, that the Arrears being paid, the Land should be surrendred to the Plaintiff; and it was said the Testator intended a benefit to the Plaintiff by the appointment; and if he should pay [Page 53]the Arrears and Interest, it was no benefit, for then the Premises without such appointment ought to be surrendred to the Plaintiff, for the same were not forfeited above ten years when the Bill was exhibited.

The Master of the Rolls upon the Rehearing 25 June, Car. 2. confirmed the first Decree. Sergeant Fountain, Master Churchil, and Master Keck for the Plaintiff. Master Sollicitor Finch and divers others for the Defendants. And afterwards there was a Bill of Review to reverse this Decree, to which Portington demurred, and insisted there was no Error in the Decree. And this Demurrer was argued in Trinity-Term 1665. before the Lord Chancellor and Baron Rainsford. And in the debate it was insisted by the Defendants Councel that this was a Bill of Review of a strange nature; for that the Plaintiff, who had the Decree, did by his Bill of Review complain, that he had not enough decreed; whereas if a Review lies, it lies only for him against whom the Decree or Dismission is. After long de­bate the Demurrer was over-ruled.

The Lord Chancellor. Baron Rainsford.
Combs against Proud. June 16.

THE Bill was a Bill of Review, and in drawing up the decretal Order, the matter upon which the Decree was made, was declared to be proved, and the Case stated far different from the Fact.

Matters assigned for Errors in a Decree must ap­pear in the De­cree it self; for being of Re­cord must be tri­ed by it. If the Fact be mistaken at the hearing and de­cretal Order; that must be re­ctified by rehear­ing, and not otherwise.The Errors assigned by the Bill were, That the Decree was grounded on matters not proved, and instanced in par­ticulars, and that the matters mentioned in the Decree to be proved were not proved, &c. The Demurrer was gene­ral, That the Decree contained no Error in Law, and that the matters alledged for Error were but mis judgment. And upon debate it was declared, That upon a Bill of Re­view the causes for review must arise and appear upon the Case as it is stated in the Fact, and that the Fact must be admitted as it is there stated; and that touching where the Fact is mistaken, upon which the Court grounded their Iudgment, it is proper in such case for that reason to have the Cause reheard before the Decree be enrolled: Yet after the Decree enrolled that is no ground for a Bill of Re­view; [Page 55]for the Decree intolled is matter of Record, and can be tried by the Record it self after it is inrolled, and must be taken to be true; and so the Demurrer was allowed.

The Lord Chancellor. The Master of the Rolls.
Bolton against Arme. June 17.

A Lessee of the Crown made an under Lease of a Rent; during the Vsurpation the State voided the first Lessees Estate, and exposed the Crown Interest to sale. The under Lessee applies to his Lessor for Protection; he bids him shift for himself;A Judgment for a matter dischar­ged by Act of Oblivion, de­creed to be va­cated. thereupon the under Lessee pays his Rent to the Purchaser from the Crown for some time, and after the under Lessee purchases his Tenement from him that purchased of the State. Vpon the Kings Restaura­tion the first Lessee brings Debt against his under Lessee for the Arreares of Rent from the time he discontinued pay­ment to him, and had Iudgment by default, who prayed [Page 56]to be relieved against this Iudgment which was by the Bill alledged to be by surprize, tho no surprize appeared in ob­taining the Iudgment. Decreed that the Iudgment be vacated,Court of Equity a proper inter­preter of a Statute. for that the Rent was discharged by the Act of Oblivion, of which the Lord Chancellor said, A Court of Equity was as proper a Iudge or Interpreter as the Iudge at Law.

Williams against Owen and Arthur. June 24.
On a Demurrer to an Answer.

THE Defendant having answered the Bill of Reviver, which sought to revive the Order on hearing, as to so much as was not within the Decree inrolled, had by his Answer set forth Matter that tended to draw into question and new examination an Agreement which was contended within the Decree as it was inrolled, and thereby fully setled. Therefore to so much of the Answer as tended again to draw into examination the Matters setled by the Decree inrolled, or by the Order, on Hearing, the Plaintiff did demur, for that it would be of evil consequence, and intro­ductive of Perjury to permit a Re-examination of any of those Matters. Vpon debate of this Demurrer, which was drawn by Sergeant Fountain, it was averred by the Defendants Councel,Demurrer to an Answer. that a Demurrer to an Answer was never known before in a Court of Equity (tho Sergeant Glyn for the Plaintiff affirmed he had known of a Demurrer to an Answer before) And tho it did seem unreasonable to the Court that a Defendant should not by Answer draw again into examination the Matters formerly examined unto and setled, yet the Court doubted what to do as to the Demurrer. Some at the Bar said the Court should have been moved in this Special Case for an Order to restrain an Examina­tion of all Matters formerly examined and setled. And it was now ordered that there should be no Matters re-exa­mined that were examined to before. This I take it was the Rule that was given, tamen quaere.

The Lord Chancellor. Baron Turner.
Nicholson against Sherman. June 24.
On a Demurrer.

A. Bequeathes a Legacy, and makes Baron and Feme his Executors, and dies: The Baron afterwards makes his Will, and makes the Feme and his Son Exe­cutors, and dies: The Legatee of A. exhibits his Bill against the Feme and her Son, setting forth the Case, ut supra, and chargeth that the Estate of A. liable to the pay­ment of the Legacy, is come all to the Hands of the Feme and her Son. The Demurrer was by the Son,The Testators E­state in whose soever Hands li­able in Equity to his Legacies. for that the Feme who was the surviving Executor of A. was only liable to his Legacies, and the Son being Executor of one of A.'s Executors that died first, leaving an Execu­tor of A. to survive, was not privy in Law nor accountable for the Estate of A. which tho it be so in point of Law, yet in as much as it was charged that the Son had gotten the Estate of A. the Demurrer was over-ruled, the Court declaring that the Estate of A. in whose soever Hands ought to be liable to his Legacies.

And in Trinity-Term 1665. this Cause was heard and decreed.

The Lord Chancellor.
Fleming against Walgrave. October 28.

THE Case was thus, 900 l. was secured by a Lease for years for a Feme Sole, in case she did not Marry contrary to the liking of Sir Edward Walgrave and his Lady, and if she did, then to such Persons as Sir Edward and his Lady, or the Survi­vor of them should nominate, and for want of such nomi­nation then to Sir Edward Walgrave and his Lady, and the Survivor of them; and in this case Sir Edward Wal­grave and his Lady were Lessees in Trust.A Trust for rai­sing Mony for a Feme Sole if she marry with con­sent of the Tru­stees, and if not, such as the Tru­stees shall name, or else to them­selves, shall enure to the Admini­strator of the Feme Sole. The Feme Sole married without their consent; Sir Edward dies with­out any appointment, and so did his Lady, who survived him, and had after the death of Sir Edward made a ge­neral Deed of Gift of all her Goods and Chattels to one Sandal. The Question was between Sandal and Francis Copledike, who was Administrator to the Lady, and also to the Feme Sole, who should have the Benefit of this Lease? The Court was of Opinion, That it was not in the power of Sir Edward and his Lady to have disposed of this Lease otherwise than for the benefit of the Feme Sole, if she had lived, and that Francis Copledike as Administra­tor to her, and also to the Lady, was well entituled to the benefit of the Lease, and so decreed it.

The Lord Chancellor. Lord Chief Justice Bridgman.
Dickenson against Knowel. November 3.

THE Plaintiffs were bound to one Crofts (to whom the Defendant was Executor) in 600 l. for the payment of 300 l. Crofts was sequestred by the Vsurper, and for 300 l. which the States owed the Plaintiffs, they had an Order from the Committee to retain the 300 l. of Crofts for satisfaction.An Act of In­dempnity makes good only actu­al Payments. The Bond was upon the Kings Restaura­tion put in suit, to be relieved against which, was the scope of the Bill. The Question was, Whether the Defendant was barred by the Act of Oblivion?

Bridgman being present, he declared, he conceived that the Defendant inasmuch as Crofts still kept the Bond, and the Mony was not actually paid, but retained, was not dis­charged by the Act of Indempnity. But it was referred to make a Case.

At the Rolls.
Rand against Cartwright. November 3.

A Man makes a voluntary Deed, and then a Mort­gage of the same Lands.A voluntary Conveyance precedent, void quoad a Mort­gage subse­quent, prevailed so as to pass the Equity of Re­demption. The first Deed upon Trial at Law is found fraudulent; he to whom the Deed is made exhibits a Bill to redeem the Mortgage.

It was held, that tho the first Deed was fraudulent, be­cause voluntary quoad the Mortgage Mony & pro tanto, yet that it was good as to the Equity of Redemption, and would pass that; for that a voluntary Deed will not bind the Party that makes it, and his Heirs. But the Matter was compremised.

Justice Archer.
Rennesey against Parrot. December 15.
On a Demurrer.

Legacies payable at 21, and no maintenance in the mean time.THE Plaintiffs were Legatees, their Legacies to be paid at twenty one years of Age. They suggest they had no maintenance, and by their Bill a Guardian prays, that the Defendant, who is the Executor of the Will, may allow them Maintenance.

Qu. what Equi­ty may do in this case.The Defendant demurred; for that the Plaintiffs were under Age, and their Legacies were not to be paid till 21, and so had no cause of Suit.

Collins for the Defendant, and none for the Plaintiff; the Demurrer over-ruled.

The Lord Chancellor.
Crispe against Nevil. December 16.

When the first Answer is re­ported insuffici­ent, the Defen­dant if he an­swer again with­out excepting, is to answer all the Points excepted, tho the same ex­ceed the Bill.THE Plaintiff excepts to the Answer. The Excep­tions are referred. The Master certifies the An­swer insufficient in the Points excepted to. Then the De­fendants fully answers to the Charge of the Bill. But in truth the Exceptions were longer than the Bill. The Master upon a Reference to the second Answer, reports the Answer insufficient in the Points excepted unto. The Defendants except unto the Report, and upon debate the Defendants Councel insisted they had answered well to the Bill, and that they ought not to be put to answer any Matter but what is in the Bill. But the Plaintiffs Coun­cel insisted, That inasmuch as the Defendants did not ex­cept against the first Report, but had since answered, they had admitted they ought to answer to all the Matters of the Exception; and so it was ruled.

The Master of the Rolls.
Cocker Knight and the Lady Elizabeth his Wife; Son and Heir of Edmund Ludlow, Son and Heir of Henry Ludlow, against Bevis. Jan. 23.

VPON hearing and debating the Matter in que­stion betwéen the said Parties this present day in presence of Counsel learned on both sides, the substance of the Plaintiffs Bill appeared to be, that Henry Ludlow having borrowed the Sum of 2000 l. of Peter Bevis, the Defendants Father, did for Security of 1000 l. thereof by Indenture dated the 21th of September, Anno 5 Car. 1. demise unto the said Peter Bevis, the Manor of Kingston Deveril with its Appurtenances, for the Term of 99 years, and for Security of the other Sum did by Indenture the 7th of the same Month in the year aforesaid demise several Woods called Sawley, Eulel and Ely, and divers Grounds, unto the said Peter Bevis for the Term of 99 years aforesaid. And that the said Peter Bevis by Inden­ture 29 Octob. 5 Car. 1. did redemise the said Manor of Kingston Deveril with the Appurtenance unto the said Henry [Page 62]Ludlow for the Term of 99 years, rendring a yearly Rent unto the said Peter Bevis of 100 l. at Lady-day and Micha­elmas, by equal portions, during the life of Susan, the Wife of the said Peter Bevis, and Richard Cubbel, and the longest liver of them; and by another Indenture dated 9 Octob. in the same year, did redemise the said Woods and Grounds unto the said Henry Ludlow for the same Term, rendring unto the said Bevis 100 l. per annum, during the life of Ri­chard Bevis, William Bevis and Sebastian Isaac, which said Lands at the time of the aforementioned Grants were worth to be sold 8000 l. and that for six years and an half the said Henry Ludlow did duely pay the said Rent, amounting to 1300 l. and that for Nonpayment thereof about the year 1640. the said Bevis made his Entry, and received the Profits thereof, whereupon John Ridout Gent. and Eliza­beth his Wife, formerly the Wife and Executrix of Ed­mund Ludlow, together with the now Plaintiffs, about Easter Term, 1650. exhibited their Bill into this Court to have a Redemption of the said Mortgage, paying what should appear due on the said Account.

Vpon hearing of which Cause in Novemb. following it was ordered and decréed by the consent and agréement of the Parties, that the then Plaintiffs should pay all the Arrerages of the said Rents at 160 l. per ann. and that upon payment thereof the said Bevis should reconvey the said mortgaged Premisses unto the then Plaintiffs, or to whom they should appoint; and to that end did appoint an Account to be taken by Mr. Rich, then one of the Masters of this Court, and what he should find due was to be paid, 200 l. thereof at Christmas then following, and the residue at the end of six Months and six Months then next following, by equal por­tions: Pursuant to which Order the said Master certified there was due to the said Bevis the Sum of 4640 l. which Sum was made up of Interest during the late Troubles at 8 l. 10 s. per Cent. which said 200 l. was duely paid at the time prefixed for that purpose. But the Plaintiff being a Colonel in the Kings Army, and about the time allowed for the latter payments being engaged in his Majesty's Service at Worcester, was forced to leave the Kingdom, and thereby disabled to make satisfaction according to the Decreé. Nevertheless did write to the said Bevis to sell part of the said Lands and pay himself what was due to him, who accordingly sold unto Sir James Thynn and others so much of the said Premisses as raised the whole [Page 63]Mony, and yet continued the Possession and received the whole Profits of the residue of the Lands, and about four years since dyed, whereby the said Premisses came unto the Defendant his Son, as Administrator of the said Peter Bevis his Father, who continues the Possession thereof; Therefore that the said Defendant might come to an Ac­count with the Plaintiff for the mesne Profits by him re­ceived, and that he may reconvey the mortgaged Premisses to the Plaintiff, or to whom he shall appoint, he being wil­ling to satisfie the Plaintiff if any thing shall be found due to him on account, is the scope of the Bill.

Whereunto the Counsel for the Defendant insisted, that there was such a Decrée as in the Bill set forth, and that for the Nonpayment of the mony computed due, which consisted only of the Arrears of Rent, without any In­terest for the same, the said Decrée became absolute: Vp­on which the said Defendant rested satisfied, and the Sale made to Sir James Thynn was not pursuant to such Letter sent by the Plaintiff, but sold on the said Peter Bevis's own account, and wherein the said Peter Bevis hath given a general Warranty, wherein he hath bound himself and his Heirs in perpetuity; which he would not have done for a thrid persons advantage.

This Court nevertheless after long debate of the Mat­ter, and hearing what could be alledged by Counsel on either side, and reading of the whole Proofs taken in this Cause, and of the Decrée made in the former Cause, which appeared to be made by consent, was fully satisfied that the Decrée was in the nature of a Mortgage,Decree in nature of a Mortgage. and but a Security for Mony, although the same was made abso­lute, and the said Lease to Mr. Bevis confirmed: And inas­much as the Consent and Agréement of the said Parties was in part executed by the payment of the said 200 l. and the Conditions of the Times being then such, that as ap­peared by the Defendants own proofs, that part of the Lands could not be sold, by which the Plaintiffs could not make satisfaction of the said Decreé, notwithstanding a continued endeavour appeared in the Plaintiffs to that purpose, as his desire of Sale of part of the said Premisses to Sir James Thynn, and Sale made by the said Mr. Bevis, and much Monies received by him by Fines and otherwise, of some of the Tenants of the said Manor: And it also appearing that this Court hath very often in such like Cases of ine­vitable necessity, and no wilful default appearing in the [Page 64]Party, Where a Decree to foreclose the Mony not paid, the Court in Cases of inevita­ble necessity will inlarge the time, though the De­cree be signed and inrolled. inlarged the time as to the performance of the De­crée notwithstanding such Decrees have been signed and in­rolled, and this appearing to be new matter subsequent to the said Decrée, was also satisfied the Plaintiffs are capable of relief in this Court, and do therefore think fit, and so order and decreé, that both Parties do proceed to an ac­count; and that it be taken by Sir Thomas Bird Knight, one of the, &c. and the Plaintiff is at liberty to take out a Commission in the Country for proof of any thing relating to the said Account;The Decree a­voided by origi­nal Bill upon matter subse­quent to the Decree. upon which Account the Master is to allow unto the Defendant the whole Mony decréed, with da­mages for the same since the time the same should have been paid by the Decrée, deducting the 200 l. already paid as aforesaid; and that the said Defendant Mr. Bevis do also account before the said Master for what he really made and received of the said Manor of Kingston Deveril, by granting Estates or otherwise; as also the Profits made by the Woods called Sawley, &c. by the Defendant and his Father, before Sale thereof unto Sir James Thynn; and also in making and confirming the Tenants Estates in the said Premisses which said Estates together with the aforesaid Sale to the said Sir James Thynn, the Plaintiff is hereby decréed to confirm and to discharge the Defendant, his Heirs, &c. of all Covenants entred into thereupon, &c. And the said Master is to appoint a time and place for pay­ment of what shall appear due; Vpon payment whereof, it is decreed, the Defendant shall reconvey the said mort­gaged Premisses, unsold as aforesaid, to the Plaintiffs, or whom they shall appoint, freéd of all incumbrances done by him and his Father, or any claiming by, from or under the said Peter Bevis the Defendants said Father.

The 18th of February, 17 Car. 2. upon Re-hearing the said Cause the said Order was confirmed.

The Lord Chancellor.
Wollet against Roberts. January 27.

AT the Hearing the now Plaintiffs offered a Bill exhi­bited formerly by the Defendant against the now Plaintiffs in Evidence, to which it was agréed, the now Plaintiffs had answered. The now Defendants objected, [Page 65]that the Bill ought not to be read for Evidence against them,A Bill in ano­ther Cause, no Evidence against the Plaintiff in it, unless it be proved to be ex­hibited with his Privity. unless the Plaintiffs could prove it was exhibited by the now Defendants direction or privity; for any person may file a Bill in another persons name. And the Court were of Opinion, that it should not be read unless it were proved to have béen exhibited with the privity of the Party Plaintiff in it. But the Defendants Counsel did after admit it to be read.

Justice Tirrel.
Sewel against Freeston.
On a Plea and Demurrer.

THE Bill was after Verdict in an Action on the Case. The Equity was, that the Defendant had writ a Letter, which the Plaintiffs could not prove at the Tryal, which would have discharged the Plaintiff, and so sets forth the substance of it, and that the matter lay only in the De­fendants Cognizance, and ought to be answered, and that the Plaintiffs Witnesses were beyond the Seas.

The Plea was to the Verdict, and that the effect of the Letter was given in Evidence at the Tryal, and Demurrer was for want of Equity.

A Bill after a Verdict in Case, on Suggestion of matter in Defendants Cognizance, which the Plain­tiff could not prove at the Tryal.On debate it was insisted, that there was not any Presi­dent of a Bill in like Case after Verdict; but before Verdict might be proper for discovery. Payton and Humfryes Case was cited for the Plaintiff; but answered that was for mat­ter discovered after the Tryal, but no such matter pretended here: And as to the allegation of the Plaintiffs Witnesses being beyond Seas, if the Plaintiff could not have them at the Tryal; It was answered, that upon an Affidavit of that at Law the Court there would have stayed the Tryal. And the Case was referred to Presidents; and after the Plea and Demurrer allowed.

Gover against Baltinglass. May 26.

THE Bill was to discover a Writing, which is sup­posed the Defendant the Lady Baltinglass had con­cealed, she having gotten a Trunk of Writings by a trick from a Master of the Court. The Defendant had put in four insufficient Answers, and delayed the Plaintiff eight years;Counsel ordered to have a sight of the Interro­gatories, to which the De­fendant was to be examined. and upon the fourth insufficient Answer was ordered to be examined upon Interrogatories. And now upon motion ordered, that one of her Counsel should attend in the next room when she was examined, to advise her in any matters of Law if she should need it. And af­terwards on an other day ordered on debate that her Coun­sel should see the Interrogatories, but not have a Copy.

Love and others against Baker, Roll and Clut­terbuck. May 28.

THE Defendants brought a joynt Action at Leghorn against the Plaintiffs, and had there arrested the Plaintiffs Goods. The Defendant Baker being here and the other Defendants at Leghorn, Baker answerd here,A Subpoena ser­ved on a Defen­dant here, or­dered to be good service for the other Defen­dants beyond the Seas. and by Order a Supoena left with him was to be good service for the other Defendants, and thereupon an Attachment for want of an Answer; and upon this an Injunction was grant­ed to stay the Defendants Proceedings at Leghorn. Now the Defendants moved to dissolve the Injunction, and in­sisted it was a new Case.

The Lord Chancellor conceived it to be a dangerous Case to stay their Suit there, and so deprive them of their remedy. To which it was answered, all Parties might have Iustice and be fully heard in this Court. But the Plaintiffs would be without remedy if the Defendants proceeded at Leghorn and got Possession of their Goods. And the Court declared they would advise with the Iudges herein; and afterwards the Lord Chancellor declared, he had advised with the Iudges, and that they were of Opinion the Injunction ought to be dissolved. Sed Quaere, for all the Bar was of another Opinion. It was said the In­junction did not lie for foreign Iurisdictions, nor out of the Kings Dominions. But to that it was answered the In­junction was not to the Court, but to the Party.

The Lord Chancellor.
Smith against Pemberton. May 30.

THE Mortgagee had assigned the Mortgage. The Mortgagor comes to redeem. The Question was, If what was really due to the Mortgagee when he assigned for Principal and Interest, and paid him by the Assignee, should be taken as Principal, or so much only as the Mortgagee first lent.

All Mony really due and paid by the Assignee to the Mortgagee, to be taken as Principal against the Mortgagor from the time of the Assignment.Ordered that all Monies really paid by the Assignée, that was due to the Mortgagee, should be Principal to the Assignée. But the Account betwéen the Mortgagée and Assignée was not to conclude the Mortgagor, but the Ma­ster to see what was really due at the Assignment, and whe­ther he had really paid the Mony: For if the Assigument was colourable it would be otherwise.

The Lord Chancellor. Chief Justice Bridgman. Baron Turner. The Master of the Rolls.
Lord Digby against Langworth. May 30.

Trust. Whether a Re­covery by Te­nant in Tail, with Remainder in Tail to ano­ther shall bar the Remainder.WHether Tenant in Tail of a Trust, Remainder in Tail to another; if the Tenant in Tail by suffer­ing a Recovery, that Recovery shall bar the Remainder which is no settled Interest vested.

Bridgman was of Opinion it should not. But it was re­ferred to a Case, and the Iudges to consider of it. See the Case of Goodrick and Brown before, fol. 49.

The Lord Chancellor. Chief Justice Bridgman. Judge Archer.
Sherly Esquire against Fagg. June 1.
On a Plea.

THE Plaintiff by his Bill made Title to the Lands in Question by an Intail of his Great Grandfather 9 Jac. whereby the Premisses were limited to the Great Grandfather for Life, Remainder to the Plaintiffs Grand­father by Name for Life, Remainder to the Plaintiffs Fa­ther by Name for Life, Remainder to the first Son (which the Plaintiff is) and other Sons in Tail, and shews how [Page 69]by virtue of those Limitations, the Great Grandfather, Grandfather and Father did enjoy during their respective Lives, and the Plaintiffs Father died about ten years since, the Plaintiff then an Infant of ten years old, and that the Plaintiff ought to enjoy by that Settlement.A Pursacher from A. of Lands which B. makes Title to, getting the Deeds making out B's Title, is not bound to discover them. And the Bill complained that Sir John Fagg and the rest of the Defen­dants had entred into several parts of the Premisses, and did divide the same among them, having gotten the Evi­dences and the Settlement, and did conceal the same, which the said Sir John had gotten into his hands from one Walter for a Reward to him, or otherwise, and he had altered and confounded the Bounds and Names of the Land, and so to have a discovery of Evidences, and the Deéd of Settlement and delivery up of the same was the scope of the Bill.

The Defendant Fagg pleaded, that for 6870 l. really paid to the Earl of Thannet, he purchased the Premisses of him by good Conveyance at Law; And demands Iudgment whe­ther he shall further discover his Title or any Deeds or Evi­dences to weaken it. And upon long debate after a Case stated, the whole Court was Opinion that the Plea was good.

The Lord Chanecllor.
Baker against Shelbury. 10 February.

THE Bill being to be relieved against an Appren­tice, Bond and Articles, and to have them up; Vpon hearing ordered that the Defendant do within a certain time (viz.) one year, bring his Action, and go to Trial thereupon for his Damages, or in default thereof the Bond and Articles to be delivered up.The Master or­dered within a short time to sue his Apprentices Indentures, or else to deliver them up. And the reason that was given, was, That if it were at the Defendants choice to stay his Action as long as he pleased, he would stay till the Plaintiffs Witnesses were dead. And it was said it was usual in the Case after Apprentices were out of their Time, to exhibite a Bill to put their Master to sue their Covenants within a certain time, or else to de­liver up their Indentures.

The Lord Chancellor.
Digardine against Swift. February 22.

UPON a motion it was ordered, that where one of the Bail at Law for the Plaintiff had prosecuted a Suit in Equity in the Plaintiffs Name in his absence, the Plaintiff not being to be found, and the said Person his Bail acting throughtout the Cause in this Court as Party and Sollicitor,The Sollicitor to pay the Costs where the Party absents himself. that the Sollicitor should pay the Defendant here his Costs. But this was in respect he was Sollicitor and Prosecutor, and not as Bail; for there being other Persons that were Bail, the Court declared they would not charge them with the Costs. And the Master of the Rolls to whom this matter was formerly moved, as concerning the Sollicitors paying the Costs, desired to see Presidents before he made any Order. And declared in this Case, that if there were any one President, he would make the second.

The Lord Chancellor. Justice Windham. Baron Turner.
Drake against the Mayor of Exon. February.

Commissioners of Bankrupt can­not assign a Co­venant in a Lease to renew. A Lessor and Lessee for years, the Lessor covenants with the Lessee and his Assigns to renew, then the Lessee becomes Bankrupt, and Commissioners of Bank­rupt assign this Covenant. The Assignee brought his Bill to have the Defendant, the Lessor, to renew the Lease to him. The Case was referred to Iustice Windham and Baron Turner, and they certified the Plaintiff ought not to be relieved; and so he was dismist.

Qu. whether they can assign an Equity of Redemption.Sergeant Nudigate, who was Councel in this case for the Defendant, said, it had been ruled in this Court, that Commissioners of Bankrupt might assign an Equity of Redemption of a Mortgage. But quaere, For it seems to [Page 72]be against the Statute, which enables them to the benefit of a Condition that is performed, and not forfeited.

The Lord Chancellor. Justice Windham.
Lawrence against Brasier.

Mony payable by Condition of a Bond, modera­ted in respect of the Office out of which it was to issue, taken away A Bond was entred into before the Wars, condition­ed to pay 40 l. per annum for twelve years out of the Profits of an Office, which Office was taken away by the Vsurpers. And the Obligor being sued on the Bond, and the Office revived, he exhibited his Bill to be relieved against the Bond. The Obligee insisted that the Office continued some part of the twelve years, and being now re­vived, the Obligor ought to pay the 40 l. per annum for twelve years, or be dismist; for the Obligee having the Law with him ought not to be hurt in Equity without satisfaction according to the Condition.

It was decréed, that the Obligor should pay the 40 l. per annum for so many years as the Office continued, and thereupon the Bond to be delivered up.

The Lord Chancellor. Baron Turner.
Terwit against Gresham. March.

Depositions in a former Cause between other Parties, read against one that claims not un­der any of those Parties.ORdered upon long debate, that Depositions of Witnesses taken in a former Cause thirty years since, where the same Matters were under ex­amination, and in issue as in this (the Point being concerning Incumbrances and Dampnification in both Cases) should be made use of in this Cause, albeit the Plaintiff in this Cause, and those under whom he claims, were not any Parties in the former Cause, in­asmuch as the Ter-tenants were then Parties, and the now Plaintiffs, Title did not then appear, and the Wit­nesses were dead; and Presidents were cited for this be­tween Trinity-Hall and Doctors-Commons, where Dr. Norths Deposition taken in a former ancient Cause, where neither of the now Parties were Party, was read. And the like between Culton and Vaugham.

The Lord Chancellor.
Armitage against Metcalf. May 16.

Where the Heir being forced to pay the Debt of his Ancestor, shall recover against the Ex­ecutor.THE Cause being heard about 1664. and one Point being, That the Obligor having paid a Debt of his Ancestors upon Bond, might be reimbursed the Mony by the Executor of the Obligor, who had personal Assets, the Heir being forced to pay the Debt by a Suit, it was de­creed the Executor should reimburse the Heir as far as there were personal Assets come to the Executors Hands. And upon Exception taken to a Report in this Cause, which came to be heard before Mr. Baron Atkins 29 Junii 1668. there was this Point, Whereas A. alone was bound to the Testator, the Executor delivered up the Bond and took another to himself for the same Debt, whereby as was alledged by the Councel of the Executor, the Security was bettered; And whether this in Equity should be charged as Assets in the Executors Hands, he having deli­vered up the old Bond, was the question.

Where the deli­vering up of a Bond by the Ex­ecutor, and ta­king a new Bond to himself for the Debt, is no conversion in E­quity to charge the Executor with the pay­ment of that Mony.Against the Executor it was insisted, that the taking the new Bond had altered the Property of the Debt, so that if the Executor died Intestate, his Administrator would have the Debt; whereas if it had rested on the old Bond, the Ad­ministrator de bonis non of the first Testator should have it subject to the first Testators Debts. It was admitted that at Law this did charge the Executor as a Conversion and Receipt of so much of the Estate. But it was insisted, that in Equity he having taken the same Person, and an­other bound, and offering to assign the Bond to the Heir, it ought not to charge him, especially when the Heir is Plaintiff in Equity, as here. And it was ruled, that the Executor should not be charged with the Mony by altering the Security, but that he should assign the Security to the Heir.

The Lord Chancellor. The Master of the Rolls.
Smallpiece against Anguish. May 25.

Injunction to Debtors to a Te­stators Estate not to pay any Mony to a pre­tended Execu­tor till his Title to the Execu­torship were set­led in the Spiri­tual Court.THE Bill suggested, that the Defendant did endeavour to set up a Will, pretended to be made by one that died in the great Sickness in London, and that the Defendant was Executor of it, whereas there was no such real Will, but obtained unduly; and that was con­tested in the Spiritual Court. And yet the Defendant in the interim being insolvent, endeavoured to get in the Debts due to the Estate. The Defendant demurred, for that the Bill contained no Equity, and the suggestion of insolvency might be made against every Executor. But the Demurrer was over-ruled; and upon motion, it was ordered that the Debtors to the deceaseds Estate should for­bear to pay any Mony till the matter settled in the Spiri­tual Court. And note, That upon examination this was found to be a forged Will, and the Defendant stood in the Pillory for it.

In Court. Master of the Rolls.
Knipe against Jesson. November 13.

The Factor (not the Imployer) to have the benefit of stollen Cu­stoms.THE Defendant imployed the Plaintiff as his Factor beyond Sea, and brought an Action of Ac­count against the Plaintiff here at Law, and had Iudgment quod computet. The Plaintiff brought his Bill here to have an allowance upon account, for what he had saved in not paying the Customs for those Goods (which could not be allowed before the Auditor as was said) and an Allowance was decreed to the Plaintiff for the same against the Defendant the Imployer; and so it was referred to a Master to take the Account. Vide Smith and Oxenden f. 25. and Bore and Vandvale f. 30.

Hampden against Brewer. November 19.
On a Demurrer.

Two Executors (the one condi­tional) are Par­ties, the Condi­tion is broken, the other Exe­cutor must re­vive. RIchard Hampden made the Plaintiff and his Widow Executors, under this Condition, That if the Wi­dow married, her Executorship to cease, and the Plaintiff to be sole Executor. The Plaintiff and the Widow exhibi­ted the Bill, to which the Defendant answered, and several Orders were made, one (inter alia) by consent to refer Matters finally to be determined: Then the Widow mar­ried, and it became a question in this Case, Whether the Plaintiff might proceed upon that Bill (wherein there was no mention that the Widows Executorship was Con­ditional, but the Bill was by both as Executors General) or whether he must bring a Bill of Reviver; And upon a Reference of that Point to Chief Iustice Bridgman, he was of Opinion he must bring a Bill of Reviver; though Sergeant Fountain upon producing the Will under Seal, whereby it appeared the Widows Executorship was condi­tional, ut supra, did insist, that there was no need of Re­viver. This was the Result of the former Debates.

Demurrer, be­cause more was prayed to be revived then can be.A Bill of Reviver was brought which was to revive all the former Proceedings, and particularly the Order by consent. The Defendant did demur to the Bill, for that it sought to revive that Order, whereas the Feme was a Party to it, and she being married since her Executorship, consequently her consent was determined. And upon debate (which was the only work of this day) the Demurrer was allowed.

In Court. The Master of the Rolls.
Underwood against Staney. November 24.

Obligee in a Bond lost, hath remedy against the Surety in Equity.THE Obligee in a Bond of 20 years old exhibits his Bill against the Administrator of the Principal and the Surety (upon loss of his Bond,) The Administrator saith by his Answer, that he hath no Assets. Upon hearing the Cause it was directed to a Trial, whether the Surety [Page 78]had sealed and delivered the Bond; and a Verdict had pas­sed against the Surety, (viz) That he had sealed and en­tred into the Bond. And the Cause coming back to this Court, and the Plaintiffs Councel praying a Decree for the Plaintiffs Debt against the Surety, Sergeant Foun­tain (not of Councel on either side) said it was doubtful whether Equity should in this Case bind the Surety who was not obliged in Law, but in respect of the lien of the Bond, and that being lost, and the Surety having no benefit by (nor consideration for) being bound, he thought Equity after so long a time should not charge the Surety. The Master of the Rolls said he would see to moderate and mediate this Matter between the Parties, in order to which he was several times attended for the Plaintiff, and the Defendant making default he decreed for the Plaintiff. And after­wards the Cause was upon a Case brought before my Lord Chancellor, who was of Opinion with the Master of the Rolls, and decreed it for the Plaintiff.

Obligee in a vo­luntary Bond lost, hath remedy in Equity.It was in the debate of this Case said, That if a Grantee in a voluntary Deed, or an Obligee in a voluntary Bond lose the Deed or Bond, they should have remedy against the Grantor or Obligor in Equity. Tamen qu. But if so, no mistake in the Principal Case, where the Bond was for Mony lent; and tho the Surety had no advantage, yet the Obligee had parted with his Mony,Loss as good a consideration of a Promise as Profit. and Loss is as good a consideration for a Promise, as Benefit or Profit.

In Court. The Master of the Rolls.
Dr. Thorndike against Allington. January 26.

A Devise was to the Plaintiff by the Defendants Father (whose Son and Heir the Defendant was) of 20 l. per Annum out of a Rectory, with a Clause of Distress for non-payment.

Remedy in E­quity for a Rent, where the Re­medy at Law is not sufficient.The Glebe belonging to the Rectory was but of 40 s. per annum, and the Tithe not being subject at Law to a Distress, and so no sufficient remedy at Law for the Rent, thereupon the Plaintiff brought his Bill to have the whole Rectory liable to the Rent, and the Defendant decreed to pay it. On the Defendants part it was insisted, that this Court ought not to extend a Remedy beyond what the De­visor appointed, and the Plaintiff must take such remedy as by Law he might. To which the Plaintiffs Councel re­plied, That the Devisor gave the Annuity out of the whole Rectory, and intended the Tithe as well as the Glebe should be liable to it.Rent-seck with­out Seisin reco­verable in Equi­ty. And that in Case of a Rent-seck where the Grantee had no Seisin, this Court had frequently given Relief by Decree here. But the Defendants Councel insist­ed, that that was not like this Case, because in that Case there was no remedy at Law at all.

The Person made liable to the Arrears of Rent, with which he was not chargeable at Law.The Court decreed that the whole Rectory be liable to pay the Annuity, and that the Defendant do pay the Ar­rears and Costs.

The Master of the Rolls.
Beversham against Springold. February 11.

A Perpetual Injunction awarded against the Defendant not to prove a Will touching a Personal Estate only in the Prerogative Court.

Injunction not to prove a Will in the Spiritual Court. But Note, That in this Case it was directed by this Court to be tried at Law, Whether a Will or no; and found against the Will; and then this Injunction was awarded.

The Lord Chancellor.
Gilpen against Smith Knight, and Dame Dorothy his Wife and Zouch.

UPON a Rehearing before the Lord Chancellor. Sir Edward Zouch seised in Fee of Lands, setled them on Trustees after his death for payment of his Debts, and dies, leaving the Defendant Zouch his Son and Heir, an Infant, and the Defendant Dame Dorothy his Widow; she entreth upon the Lands, and taketh the Profits (the Trustees not at all acting) then she marries Lloyd. After the Marriage he continues to take Profits during his life, as she had before. He dies, then the Defendant Sir ..... Smith intermarries with Dame Dorothy, and she being in receipt of the Profits till that time, the Defen­dant Smith continued to receive the Rents until the De­fendant Zouch came of Age. The Plaintiff was a Credi­tor of Sir Edward Zouch, and his Bill was against the Heir of Sir ..... Smith and his Wife, and the Trustees to have his Debt paid.

This Cause being first heard at the Rolls, It was there decreed, that the Plaintiffs Debt should be paid, and that both the Lands and Smith (in respect of the Profits taken by Dame Dorothy and Lloyd and Him­self) should be liable to the payment thereof, with this, that if it fell on the Heir to pay the Debt, he should have the benefit of the Decree to reimburse him against Sir ..... Smith so far as the Profits taken by Dame Doro­thy, Lloyd and Smith did extend.

Whether the se­cond Husband be answerable for Profits of Land wrongfully ta­ken by the Wife dum sola, and af­ter by her for­mer Husband during their Co­verture.From this Decree Sir ..... Smith and his Wife appealed. And for Sir ..... Smith it was insisted, that he ought not to be charged with the Profits taken by the Lady, or Lloyd her former Husband; and farther, that she had Assets of Lloyds Estate, to whom she was Executrix.

The Argument on Sir ..... Smiths part was thus; Either the Profits taken by the Lady and Lloyd were taken by Right (for there was a pretence she entred on the Lands as part of her Ioynture) or by Wrong; If by Wrong, then Lloyd the Wrong-doer being dead, the Tort was dead with him, and so there was no Re­medy to be answered for that Wrong; and compared this Case to a Trespasser, and the Trespasser dead. If by Right, then not answerable over for them.

Sergeant Maynard for the Heir insisted, that both by Law and Equity Sir ..... Smith and the Lady were answerable for the Profits taken by the Lady, and after by Lloyd; As if Feme Tenant pur vie marry, and the Husband doth wast and dies, Wast lies against the Wife. And compared it to the Case where a Feme Executrix takes a Husband that wasts the Testators Estate, a Devastavit lies against the Feme after the Husbands death for the wast of the Husband. And the Feme by her entring and meddling had made her self liable to answer what she had took as a Debt; and Lloyd her Husband upon his Marriage continuing to take the Profits as she did, its a continuance of the Wrong she did, and by colour of her having entred be­fore and taking the Profits, made her liable for her own Receipts, as a Debt owing by her. And her Marriage [Page 82]with, Lloyd which is her own Act, cannot discharge her­self; and the Husband must be looked upon as acting in this Case, by reason of the Wifes so acting before. And so upon the whole Matter the Court conceived the Decree just, and that Sir ..... Smith must take his Wife chargeable with this Debt. But for the proof, that the Mother and the Son were related to the Earl of Anglesey, it was referred to him to moderate the matter if he could; if not, then directed a Case to be made.

The Lord Chancellor. The Master of the Rolls.
Sir John Harrison against the Lord North, Ex­ecutor of the Lady Mountague. April 25.

THE Plaintiff was Tenant to the Lady Moun­tague of a House in London, at a certain Rent: He left the House and went to Oxon to the late King, and then sent his Servant with the Key of the House to the Lady, and desired her to re-enter and accept the Surrender. She said she would advise with the Defendant her Son-in-Law, (who then sate in the House of Commons and acted with them.) Afterwards she re­fused to accept of a Surrender. The House was made an Hospital by the Parliament for maimed Souldiers. The Defendant as Executor to the Lady brought Debt at Law against the Plaintiff for Rent incurred whilst the House was so used, and all the time. To be relieved against which Action was the scope of the Bill.

Finch pro Quer. It is but reasonable that if a Te­nant be put out by such against whom he can have his Remedy over, that he notwithstanding be liable to pay his Rent to the Lessor. But here the Plaintiff hath no remedy over; and it was an Act of force in the Par­liament which is pardoned by the Act of Oblivion, and so no Remedy over, and the King hath pardoned all his Arrears of Rent. The Law of England is ex vi termini, stricter in the Matter of Rents than other Nations, for redditus & reddere is accepted as restituere, and render implies apprendre.

Whether Te­nants held out by force by Soul­diers in time of Rebellion shall for the time be relieved in Equi­ty against pay­ment of his Rent. Aequitas sequi­tur Legem. Carter and Com­mins Case. Maynard for the Defendant. The Plaintiff hath a piti­ful Case, but not such as this Court can relieve; for the Law and Equity is all one in this Case; and if the Mat­ter be no good Bar at Law, it is not good in Equity. And he insisted, that if Rebels the Kings own Subjects do an Act of Fore, and hold a Tenant out, that is no Equity to excuse him from payment of his Rent, and cited the Case of Carter and Cummins about two years since in this Court, where the Plaintiff being a Tenant of a Wharf, which by an extraordinary Flood was carried all away, brought his Bill to be relieved against paying of his Rent; but all the relief he had was only against the Penalty of the Bond, which was broken for non payment of the Rent; and the Defendant ordered only to bring Debt for his Rent. And he insisted, that a Surrender of Lands is no cause for apportionment of Rent, which is stronger than the Principal Case. The Lord Chancellor took time to advise; but declared, if he could, he would relieve the Plaintiff.

Frank against Frank. May 17.

A Man seised in Tail of Freehold Lands, with re­mainder to his Elder Brother, and of Copyhold Lands in Fee, deviseth his Lands to his Younger Brother, and the Copyhold Lands to his Elder Brother, and dies: The Devisees agree by Writing under their Hands, that the Lands should be enjoyed by them respectively accord­ingly; and to draw on this Agreement, the Younger Bro­ther pretends the Devisor did suffer a Recovery of the Free­hold [Page 85]Lands, and produceth an Exemplification of a Reco­very. Vpon search it was found there was a Writ of Entry brought, and a Warrant of Attorny to appear was entred, so that had the Party that suffered the Recovery been living, he might have perfected the Recovery; but there is no Recovery of Record. The Elder Brother be­ing informed there was no Recovery upon Record, and so the Devisor could not devise the Freehold Lands from him, and he being in truth intituled to the Copyhold as Heir at Law, and now by the Will, no Surrender being made to the use of it, brought his Action at Law to reco­ver the Freehold Lands. The Younger Brother exhibits his Bill upon the Agreement, and pretends there was a Recovery, howbeit the Record was imbizelled, and prays he may hold according to the Agreement between him and his Brother.

And upon heating at the Rolls it was decreed, that he should enjoy the Freehold Land, and an Injunction award­ed to stay the Elder Brothers Suit.

From this Decree the Elder Brother appealed by Bill of Review, and upon hearing of the Bill of Review, it was insisted for the Plaintiff therein, That the Agreement between the two Brothers was parol only, and that the pretence of a Recovery was a Fraud, there being none, and that if there was an intention, and it was never exe­cuted, that intention can never found a Decree against the Statute de Donis, and that the Agreement doth not alter the Case, it being introduced by Fraud, there being in truth no Recovery, nor no Surrender of the Copyhold to the use of the Will. So that the Plaintiff in a Bill of Review ought to have both Freehold and Copyhold.

Maynard for the Decree. The question is not, whe­ther the Recovery shall bar or not, but whether here is not enought to fortifie and excuse the Agreement.Where an A­greement tho conceived upon mistake, shall bind the Party. He in­sisted farther, that the Plaintiff had departed from his Title to the Freehold Lands; and tho the Agreement was not sealed, yet it was under Hand, so that the certainty of it was not to be disputed, and so replied upon the Agreement, and that in that respect the Decree was well grounded, and thereupon the Bill of Review was dismist with Costs, for modus & conventio vincunt Legem. So that in this Case the Agreement of the Party upon con­ceit he had not (when in truth he had) a Title to permit [Page 86]another to enjoy Lands, shall for ever bind him; and yet this Agreement doth appear to be upon a valuable Co­sideration.

In Court. The Master of the Rolls in the absence of the Chancellor.
Colwel against Sir William Child a Master of this Court.

ALL, Parties to a Suit here consent to refer the whole matter to Serjeant Maynard finally to be heard and determined; and old Child, the now Defendants Father, signified his consent by subscribing a Paper for that pur­pose, so as the Award was made by a certain day limitted in this Paper. That elapsed, and then the Court in pre­sence of all Parties, but old Child, (who was then ab­sent) by the assent of his Solicitor referred it back to Ser­jeant Maynard; but it was not inserted in the Order, that he should finally determine: Vpon this Serjeant Maynard made an Award, which was afterwards decréed, unless Cause shewn. Old Child shewed for Cause, that he did not consent, and his Solicitor made Oath he did not con­sent Serjeant Maynard should finally determine, yet the Award was decréed. Hereupon a Bill of Review was brought and Error assigned; and upon the hearing of this Bill of Review, It was insisted, that the matter of old Childs Dissent was Dehors, and not contained in the Decree. And it was said the Court could not take notice of that, inasmuch as there did not appear any Dissent in the Decrée it self.

Errors in Law. 1. Error.First Error assigned was, that the Assent of the Soli­citor shall not bind the Party. Against which it was ob­jected, That Solicitors are here as Attornies at Law. And if an Attorny confess Iudgment, the party is bound by it; and that usually Solicitors are looked upon here as Attornies at Law;Solicitors assent­ing to Interlo­cutories may bind, but not to final Reference. as for instance, In a Masters Report made in the presence of Solicitors: But it was answered and resolved by the Court, that although Solicitors Assent to Interlocutories may bind, yet it cannot bind to a Re­ference [Page 87]finally to determine. And it was said and admitted, that an Attornies assent to an Award shall bind his Client. And this Error was declared by the Court to be good Cause of Reversal. And it was declared it should not lie upon the Plaintiff to shew old Childs Dissent. For it ap­pears upon the Decrée, that it was the Solicitors assent; and if the Decreé want a sufficient foundation, it is Er­ror, and the Plaintiff shall not be put to shew a negative.Award set aside for that the Par­ty did not actu­ally assent unto the Reference. And the Plaintiffs Counsel cited a Case betweén Brooks and Dickens about 1652. where an Award was set aside for that the party did not actually assent to the Reference, and yet attended the Reference in the business.

2. Error. Award errone­ous for that its but of part of the matters re­ferred.For that the Award was but for parcel of the matter in Controversie, and not of the whole matter, whereof the Reference was to determine, and this Error allowed.

For that the Decreé was impossible; for by the Award (de­créed) old Child was to pay a Sum of Mony 24 Jan. 1654. or Surrender an Estate.3. Error. Decree impos­sible. And the Decree was dated after the said 24 Jan. 1654. and so impossible. And this was al­lowed to be Error.

4. Error. Decree repug­nant. For that the Award was repugnant; for it awarded old Child to deliver up an Obligation of 800 l. in satisfaction of 400 l. of 1000 l. which he was to pay, and to vacate a Suit in satisfaction of 600 l. residue of the said 1000 l. al­though there was not any residue after the 400 l. and 600 l. satisfied; and this was ruled to be for Error also. And so the Decree was reversed.

That it was moved that the Solicitor who assented, and who was now Solicitor in this present Cause should pay Costs to the Defendant Dr. Child; but resolved he should not. For that the assent he gave was in Court, and the Court knew such assent would not bind the party. And 'twas the folly of the other party to procéed on that assent.

The Master of the Rolls.
Smith against Smoult. January 21.

Whether the Mortgage mony belongs to the Heir or Execu­tor of the Mort­gagee.THE Question was, Whether the Mortgage Mony should be paid to the Heir or Executor of the Mort­gagée. And it was for the Heir insisted, that it was ruled in a Case betwéen Tilley and Egerton in Michaelmas, 1660. heard by the Lord Chancellor-assisted by the Lord Bridgman, there being no defect of assets in the Executors hands, that the Heir should have the mony, who is to convey the Estate. And this was said to be the first President of that kind. The Court will sée Presidents.

And afterwards about Michaelmas or Hillary Term 1667. the principal Case was heard before the Lord Kéeper Bridg­man where the Order in the Case of Egerton was produced; but in the principal Case there appeared to be a Bond for payment of the Mortgage-mony which goes to the Execu­tors. And the Condition of the Redemption was upon payment of the mony to the Executors, &c. (whithout naming the Heir.) So it was ruled in the principal Case that the mony should be paid to the Heir: But the Lord Kéeper said that if the Condition of the Redemption had been to pay the mony to the Heir or Executor, and no Bond were in the Case, nor no want of Assets of the personal Estate, ir might have béen otherwise. And in the Case of Egerton in reading the Order it did not appear how the Condition was penned; but the Court now took it that the mony was payable to the Heir by the Condition, Saint John against Grabham 11 Car. 1. adjudged by the Lord Kéeper, That the Heir, and not the Executor should have the mony, being payable by the Condition to the Heirs or Assigns of the Mortgagoe.

Elston Wallis and others, Executors of Ann Smith against Sir Thomas Crimes Baronet, John Scot Esquire and others. June 4.

IN 1656. Sir George Crimes Father of the Defendant Sir Thomas, (and whose eldest Son the Defendant Sir Thomas was) demised the Lands in Question to Ann Smith for 2000 l. for 2000 years by way of Mortgage, Sir George then being in possession and taken to be the absolute Owner 19 Januar. 1643. Sir Thomas Crimes Father of Sir George had conveyed the Premisses to the Defendant Scot and others, and their Heirs, upon Trust, That if Sir George within six Months after his Fathers death secured to the Trustées 500 l. for the benefit of Sir George his younger Children, then (after such Security first given to the Trustées) to convey the Premisses to Sir George and his Heirs as he should appoint: And till the time limited for giving the Security, the Trustees to stand seized to the use of Sir George his eldest Son (which Sir Thomas is) for his Maintenance, and in default of such Security, the Trustees, at the request of Sir George his eldest Son, to convey to him. This appearing to be the Case in proof upon a Bill exhibited by the Plaintiffs to inforce a Redemption, or to hold discharged of Equity; [Page 90]The Court decreéd that the Plaintiffs do hold and en­joy the Premisses for Security of the 2000 l. with Interest against the Defendants and all claiming under them, charged with the 500 l. to Sir George Crimes his younger Children from the time the Plaintiff came into possession, and that the Defendants do accordingly execute Conveyances, un­less the Defendant Sir Thomas Crimes do pay the Mort­gage Mony and Interest by a day.

The Defendant brought a Bill of Review to reverse this Decree, and for Error shewed that in default of giving Security in six Months after Sir Thomas his death the Trustées were to convey to the Defendant and his Heirs, and the Security was first to be given before Sir George was to have any thing in the Lands, and that Sir George being dead that was impossible, he having not given any Security.

But upon debate of the matter upon an Answer put in to the Bill of Review, and hearing of the Cause before the Lord Keéper Bridgman 28 Octob. 1668. he declared he saw no Cause to reverse the Decree,A Breach of a Condition pre­cedent relieved in Equity as in the nature of a Penalty. but looked upon the Con­dition precedent to be in the nature of a penalty, and would regard the intent of the Trust which was to secure 500 l. to the younger Children, which, with the way the Plaintiffs went in this Bill of Review, could not be. And so dismist the Bill of Review.

The Lord Keeper.
Hide against Pettit. October 25.

Argument pro & contra. Sequestration.THERE having béen a Decrée in this Case for a personal Duty, and a Sequestration awarded against the Defendants real and personal Estate by the late Lord Chancellor, assisted by Baron Turner, it was now moved by the Defendants Counsel against this Sequestration, and insisted, that this Court did not anciently grant any Sequestration but sparingly, and that only of the thing in demand, and that the Sequestration in this Case took more than all the Executions at Law; and that Sequestration had been extended so far of late as to sequester things in Action, which no Execution at Com­mon Law can reach, and the consequence of which would be destructive to Trade and Commerce. And besides when any Purchaser is brought into this Court upon the Process of Sequestration upon Sequestration, That this Purchase is subsequent to the Sequestration, or for other reason bound thereby, whereas many persons so brought in are really Purchasers, or have other good Titles, which neither are [Page 92]nor ought to be bound thereby, those persons so brought in are looked upon as Contemners and Delinquents and forced to answer Interrogatories blindfold without having a Copy of them, or liberty to shew them to Counsel, by which means persons coming into this Court to defend their Interest are often through their own unskilfulness concluded in their just Rights, even against Right, to the great dishonour of the Court and of Iustice. But to maintain the Sequestration it was insisted by Fountain, That they were very ancient in this Court, and cited a Case 17 Jac. Zacheverel against Zacheverel, where a Se­questration was awarded both against Lands and Goods,Sequestration against Lands and Goods. and the thing decreed was a personal duty; and this Se­questration was awarded by the Court, assisted with the Iudges upon view of four Presidents. Russel against Read: The Defendant being in the Fleet the mony decreéd was sequestred, it being in the Fleet, this in the Lord Coventry's time. And 18 Feb. 1662. assisted with Baron Turner in this principal Case and the Case of Beddingfield and Zouch, That a Sequestration should be the usual Process of this Court,The Power of the Chancery. and the course of the Court is the Law of the Land, and an Executor might bring an Action here before the Sta­tute gave it; and it was urged if you should take away Sequestration the Iustice of the Court would be elusory, and that after a Suitor had been at great Charges in ob­taining a Decrée, if the Defendant would lye in prison there would be no remedy for the Plaintiff to come by the fruit of his Decreée, and the Remedy by Imprisonment would be ineffectual, for if he go abroad no Escape lies. Vpon a Iudgment in a Court Baron a Levari Fac. goes which takes all the Profits of the Lands, and a Statute before a Mayor takes all. And therefore not unreasonable that so great a Court as this should have an effectual means of bringing Suitors to the fruit of their Suit, which with­out a Sequestration cannot be done.

And as to sequestring things in Action there is no such thing sequestred in this Case. And as to the danger of bringing persons that came in for their Interest as Delin­quents by means of Sequestration and their being de­prived of Counsel to answer. That is the Case of every Decrée and Contempt where there is no Sequestration, and is the course there as well as in the course of Sequestra­tions.

The Court will see Presidents: Sequestration against Lands and Goods well awarded. And after at another time declared it was latisfied the Sequestration in the principal Case was well awarded; and that Sequestrations were a necessary Process of this Court.

The Lord Keeper. Sir
Henry Henn against Sir Henry Conisby. October 25.

Mony of the Defendants was lent out by one Yarway to the Plaintiff upon the Security of a Mortgage and Recognizance, and the Security was taken in one Cambels Name in Trust for the Defendant: The Mony was lent 1659. and paid in to Yarway in 1663. and all Interest for the same, and Yarway during that time and a year after paid the Interest to the Defendant, but the Defendant himself kept the Security. Yarway failed, and the Que­stion was, Whether the payment of the Mony to Yarway (who had not paid it over to the Defendant) should be taken as a good payment to conclude the Defendant.

For the Plaintiff it was laid down by his Counsel as a Rule, That wh [...]re one places Mony in a Scriveners hands with this general Trust, for him to put it out where he pleaseth, there by that general Trust or Authority the pay­ment back to the Scrivener is good payment.

And it was proved by Witnesses that the Defendant had said, He had trusted Yarway with the greatest part of his Estate, and he feared he should be cozened, which the Plaintiffs Counsel insisted on as Evidence to prove that the Defendant trusted Yarway with this Mony:Whether Mony paid by the Bor­rower to the Scrivener that is imployed in lending of the Mony, without taking up the Security, be a good payment to conclude the Lenders. But as to that it was answered by the Defendants Counsel, that Co­nisby lent Yarway other Monies on his own Security which he lost, so might say, He was like to be cozened by the said Yarway. But it was farther insisted by the De­fendants Counsel, that the Defendant kept the Security himself, which clearly shewed that Yarway did not act un­der such general authority as was alledged by the Plain­tiffs Counsel. And it was insisted, that that one Circum­stance would rule the Case; and no man will pay the Mony due upon a Mortgage and Recognizance (no not [Page 94]on a Bond) without having the Security up and the pay­ment of the Mony by the Plaintiff to the Scrivener with­out having up his Security, was an Evidence that he did trust the Scrivener more than the Defendant did (who always kept the Security himself) and he that trusted most is to be cozened.

A Case betweén Sir Gilbert Gerard and Baker was cited by the Defendants Counsel where Mony was paid to one that did usually receive for the Obligée, yet the Obligée not trusting the Receiver with the Bond, it was held no good payment.

The Court conceives the Case is against the Plaintiff in regard the Defendant kept the Security, but will seé Presidents, English against Lee, a President cited by the Plaintiff in 1655. And after the Court had perused the Presidents on both sides, Pasch. 1668. Iudgment was given for the Defendant, That the payment to the Scrivener should not conclude him; but he was ordered to take the Principal without Costs.

The Lord Keeper.
Mary Thomas Widow, against Edward Porter, Phi­neas Porter and Robert Bishop of Worcester. February 8.

THE Plaintiff was Tenant durante Viduitate of the Lands in Question being Copyholds of a Manor whereof the Defendant the Bishop was Lord, Remainder to Edward Porter. The Plain­tiff had felled Trees which at a Court Baron was presented and found a Wast, and consequently a Forfeiture by the Homage, and the Defendant Edward was afterwards at another Court after an Entry made by the Bishop for Forfeiture, admitted, and brought Ejectment, and before a Iudge of Assize had a Verdict.

To be relieved against which was the Bill which did suggest that the Timber that was cut was worth but 40 s. and the Estate 60 l. per annum, and that there was 300 l. worth of Timber standing, and that if upon Examination it should appear to be wast, the Plaintiff would make satis­faction.

The Defendant Porter by Answer insisted, that the Wast was voluntary, and declared to be so by the Iudge [Page 96]of Assize before whom the Iudgment was, and that the Timber felled was worth 60 l. Vpon the Proofs there was a great difference touching the value of the Timber felled, and some proof of a Load or two of Boards that were carried off the Premisses by the Plaintiff, which for her was insisted were carried to another Copyhold within the same Manor; but there was not any proof, that the Plaintiff had sold any of the Timber she felled; and it was proved the Copyhold in Question was much out of Re­pair, and for the Plaintiff insisted, that with that Timber she intended to repair the same.

The Lord Keeper. It was not clear there was any wilful Forfeiture, for that the Defendants before the Plaintiffs had applied the Timber, took the Forfeiture, and the Defendants were ever forward therein, and yet withal declared, that in case of a wilful Forfeiture he would not relieve, and then referred the Cause to the Bishop, the Defendant, to be Chancellor in this Cause.

Vpon this the Bishop certified the Wast of be wilful, and no ground to relieve the Plaintiff.

Vpon this Certificate the Cause coming to be heard be­fore Iustice Tyrrel (in absence of the Kéeper) he pronounced an Order to dismiss the Bill, which being stayed by a Petition to the Lord Kéeper, 11 November 1668. he re­heard the Cause, at which time it was insisted for the Plaintiff, That the Lord Keéper could not delegate his Iurisdiction to the Bishop as the Order on the first hear­ing did mention, which was admitted; and it was made out by Affidavits, that the Bishops Son had taken a Bond from the Defendant Porter for 50 l. if the Cause went for the Defendant Porter.

A Forfeiture of a Copyhold by felling of Tim­ber relieved in Equity.Vpon this hearing it was referred to a Trial at Law upon this Issue, whether the primary intention in felling the Timber was to do wast? But as the Order was drawn up the Issue to be tryed was, whether the supposed Wast was wilful or not.

And upon two several Tryals it was found for the Plain­tiff; and so after these two Tryals, It was decreéd the Plaintiff should be relieved, and the Defendant to deliver Possession, and Account for the mesne Profits.

In Court. The Master of the Rolls.
Saint John Esquire against Holford Baronet, and others. February 9.

THE Defendants Grandfather (whose Heir and Exe­cutor the Defendant is) became bound with the Plaintiffs Father (whose Heir the Plaintiff is) in several Bonds, as his Surety for 4000 l. The Plaintiffs Father conveyed the Manor of Colwerton by way of Mortgage to the Defendants Grandfather to counter-secure him against the said Bonds for 4000 l. The Plaintiffs Father prevailed with the Defendants Father to become bound with him afterwards for 2000 l. more. Then the Plaintiffs Father paid off 1500 l. of the 4000 l. Debts by Bond.

Counter Secu­rity given a­gainst one Debt shall extend to be Security a­gainst another Debt.The Bill was to be admitted to redéem upon payment of what the Defendants Grandfather or himself had paid off or béen dampnified by the Bonds for the 4000 l. and what remained unpaid of the 4000 l. And the Question was whether the Plaintiff (inasmuch as there was no Agree­ment proved that the Mortgage was to be a Security to the Defendants Grandfather against the Bonds for the 2000 l. as well as those for 4000 l.) should be admitted to redeem upon payment of the 4000 l. without the 2000 l. And it was ruled and so decreed, that if the Plantiff would redeém he should reimburse and save harmless the Defen­dant as well touching the 2000 l. as the 4000 l. Vpon this Rule,He that will have Equity must do Equity. He that will have Equity to help where the Law cannot, shall do Equity to the same Party against whom he seeks to be relieved in Equity.

Serjeant Maynard and Fountain were of Councel in this Case with the Plaintiff, and did without any debate rest in this Order. Serjeant Fountain said it was a just Decrée.

Hill. 1667. Vpon an Appeal to the Lord Keéper Bridg­man the Decrée was confirmed.

Gore against Blake.

THE Case being stated by Order, came this day to be determined; and in effect it was thus. A. by his Will, whereof he makes B. his Executor, Deviseth (inter alia) that B. shall take the Rents and Profits of his Lands of Inheritance for fifteen years, in Trust to pay his Debts, and upon other Trusts. And after several particular Le­gacies bequeaths all the residue of his Goods and Chattels to B. his Executor. It falls out that all the Debts are paid and all the Trusts performed, and there is an Over­plus of the fiftéen years besides what was sufficient to pay the same.

The Question was betwéen the Heir and the Execu­tor of B. who shall have the Remainder of the fiftéen years after the Debts paid and Trusts performed. For the Heir it was said there was a difference betwéen this Term, be­ing out of the Inheritance, and a bare Chattel, and that the Overplus of this Term being out of the Inheritance should attend it, and there was not any intention in the Testator to give the Executor the Profits for fifteen years otherwise than to make provision for payment of his Debts and those other Trusts; and that the end being satisfied the residue of the Term did cease and return to the Inheritance.Whether the Overplus of the Profits of a term devised out of an Inheritance, in Trust to pay Debts to the Ex­ecutor, who is re­siduary Legatee, doth belong to the Heir or Ex­ecutor. But for the Executor it was insisted that the fiftéen years was a Term, and then the Devise of the residue of the Goods and Chattels did pass.

Curia. The Term is in the Devisée, and there passed an Interest, and if it had been devised the Executor should take the Profits for fiftéen years; and then the appointing the Debts to be out of the Profits, and the other Trusts both not alter it, so conceives the residue of the Term be­longs to the Executor, and not to the Heir; and so decréed, Tamen quaere.

Sir Joseph Douglasse and his Wife against Wil­liam Waad.

James Waad the Defendants Father having married a first Wife, did in her Life time many years befor ther death, by several Fines and Déeds settle the several Ma­nors of Buttles and Payton Hall, to the use of himself for Life, Remainder to his first and all other his Sons in Tail. Afterwards the first Wife dies without Issue; then James Waad marries with the Daughter of Eltonhead, but before Marriage agreés with Eltonhead that in consi­deration of 1000 l. Portion, which Eltonhead was to pay her, to settle her a Ioynture of 300 l. per annum, (of which it appeared in the Case Buttles Manor was to be part) but what the other Lands were that were to make up the 300 l. per annum did not appear. James Waad hath Issue by his second Wife the Defendant, and dyed, leaving the second Wife, who married Douglasse the Plaintiff.

Their Bill is against the Defendant to have him de­creed to settle the Ioynture on the Defendants Mother, and to set aside the Settlement made by James Waad against the Ioyntress as fraudulent.

When this Case was first brought to hearing there was no proof of payment of the 1000 l. Portion by Eltonhead, but it proved that Eltonhead maintained James Waad, and furnished him with Mony for other Vses.

Marriage a good consideration to make a Feme a Purchaser. Security of Pur­chase Mony is payment.And it was insisted on the Plaintiffs part, that Marriage was a good consideration to make the Ioyntress a Pur­chaser, and it was her Father that was to pay the 1000 l. and not she, and so she was clearly a Purchaser. If a Man secure his Purchase Mony, its payment. And to this Opinion that she was Purchaser, the Lord Chan­cellor inclined. And the Plaintiffs Counsel, Serjeant Maynard and Fountain, insisted, that the Ioyntress being a Purchaser, the Settlement being after the Marriage of the first Wife was fraudulent as to the Iointure, which the second Wife claims by the Marriage Agréement.

On the Defendants part it was insisted, the first Con­veyance was good, and cannot be set aside by [...] the Mar­riage Agréement: For it was not in the power of the Fa­ther [Page 100]after the first Settlement to avoid it, and every vo­luntary Conveyance is not fraudulent.Every voluntary Conveyance is not fraudulent. The Chancellor of Oxfords Case, Merry and Littletons Case, 10 Jac. Fraud is not to be presumed. And this Conveyance was by Fine, and so notorious and upon Record, and there could not be any intention of Fraud as against the second Wife; and its rare that this Court takes upon them to judge a Deed fraudulent.

But prima facie its presumed to be fraudulent.To which it was replyed, Fraud is only cognizable here, and was only proper here before the Statutes, and every voluntary Conveyance is presumed to be fraudulent unless he, that claims by it, can prove the contraty.

The Lord Chancellor inclines, the Ioyntress is a Pur­chaser, and whether the Déed be fraudulent proposes to have it tried, but after referred to a Case. And a Case being stated to the effect ut supra, with this more, that there was a Release given by James Waad for the Portion 25 Feb. 19 Car. 2. the Cause came to be heard before the Lord Chancellor and Baron Turner.

At which time the Court declared the Marriage was 'a good consideration to make the Feme a Purchaser; and besides upon the Release for the Portion it was clear she was a good Purchaser,A voluntary Conveyance precedent, as to a Marriage A­greement subse­quent, is fraudu­lent. and that all voluntary Convey­ances are prima facie to be looked upon as fraudulent against purchasers, unless the contrary be made appear, and so decreeed the Settlement by James Waad to be set aside as fraudulent.

The Defendant brought a Bill of Review, and assigned for Error, that it was not cognizable here whether a Déed were fraudulent, but that was only tryable at Law; and besides no colour of Fraud against the Iointress; for the Déed, as appears by the Decrée, was made in the Life of the first Wife, who lived ten years after, and the second Wife not then thought on. And the Settlement being by Déed and Fine, ought not to be presumed fraudulent with­out proof: And it was farther assigned for Error, that by the Decrée the Settlement as to Payton Hall was to be part of the Ioynture, she was not, as appeared, any Purcha­ser as to that, and so no reason to set aside the Settle­ment, as to Peyton Hall, under the notion of the Ioyntress being a Purchaser, for that it did not appear that that was within her pretended Purchase.

To this Bill of Review the Defendants demurred, and insisted that the Decreé was well grounded, and upon de­bate thereof before the Lord Chancellor and Baron Tur­ner in Trinity Vacation 19 Car. 2. The Demurrer, as to the Points above, was allowed.

But as to another particular touching the mesne profits (which Point I have not stated) the Plaintiff in the Bill of Review was upon arguing of the Demurrer relieved, and the Decrée so far explained (that is to say) Whereas by the Decrée the Defendant was to Answer, and pay all the Arrears of the 300 l. per annum to the Ioyntress since his Fathers death, whereas it appears by the Decrée, that by a former Decree of the Court the mesne Profits had béen applyed first to the payment of Eltonheads Debts, and afterwards beén taken by the Lady Waad, and the De­fendant was neither charged as Heir or Executor to his Father, nor had any Assets to answer the Arrears.

It was ordered that the Defendant should be chargable only with so much Arrears as he had received out of the Lands.

The Lord Keeper. The Master of the Rolls.
Pearson against Pulley. 25 April.

THE Bill being to redeem a Mortgage made in 1632. and it being insisted on by the Defendant, that he came in as an Assignee at the third Hand, and so it would be hard to put him to an Account now, the Lord Keeper said, That in regard there had been no stint put to the time, a Mortgage is to be redeemed, the Defendant shall come to an Account; but in regard he comes in at an old Hand, shall not account but so far only as goes in discount of his Mony, but not for the Surplusage.Special directi­ons touching old Mortgages. And he said he would have a Rule to limit to what time a Mortgage shall be redeemable, and con­ceived twenty years to be a fit time in imitation of the Statute of Limitation of real Actions: But gave no Rule in that, but only he directed, that when a Bill came to re­deem an old Mortgage, the Defendant should plead or de­mur to it, that so the Iudgment of the Court might be had upon it.

The Lord Keeper. The Master of the Rolls.
David Jenkins Esquire against Sir Charles Kemis Baronet, and others. April 28.

EDward Kemis Esq; deviseth the Lands in question after other Estates Tail (which are all spent) to Sir Ni­cholas Kemis for life, Remainder to his first Son, and the Heirs Males of his Body, with other Remainders over, Sir Nicholas hath Issue Charles, Father of the Defendant Charles. In 1637. the Defendants Father married Blanch the Daughter of Mansel, with whom he had 2500 l. which Sir Nicholas had, and thereupon Sir Nicholas and Charles his Son levied a Fine and suffered a Recovery, and five years after, viz. 1 April, 18 Car. 1. by Indenture tripar­tite, whereto Sir Nicholas and Charles his Son are both Parties named, and tho Charles never sealed, yet he con­sented to the use thereof, reciting that Nicholas was Te­nant for life, the Remainder to his Son Charles prout and the Marriage of Charles prout, and that his Wifes Por­tion was 2500 l. and that Sir Nicholas had it, and the Fine and Recovery had thereupon, and in consideration thereof, the Vses of the Fine and Recovery are declared to be to Sir Nicholas for life, the Remainder to his Son Charles, and the Heirs Males of his Body, begotten on the Body of Blanch, the Remainder to the Heirs Males of Sir Nicholas, the Remainder to the Heirs Males of the Body of Sir Charles the Defendants Father, the Remain­der to the right Heirs of Sir Nicholas, with a Power to Sir Charles by Deed or Will to charge the Land with 2000 l. as he should think fit. After in January 18 Car. 2. the Marquess of Worcester borrows of the Plaintiffs Father 2000 l. which was applied to the Kings Service, and prevails with Sir Nicholas Kemis and Chailes his Son, then both under his command, by Lease and Release to convey the Premises to the Plaintiffs Father, in Fee, by way of Mortgage, wherein they covenant to make farther assurance; the Mortgagors continue possession, and die; the Defen­dant is eldest Son and Heir of the said Charles Kemis by a second Wife, Blanch being dead without Issue, but claims [Page 104]the Premises as Issue in Tail by the Settlement as Son and Heir of his Father. The Mortgagee brought Eject­ment against the Defendant, and thereupon a Special Ver­dict, ut supra, and upon argument ruled against the Plain­tiff; whereupon the Plaintiff being as well Executor as Heir to his Father, brings his Bill in Equity, suggesting the tripartite Deed antedated, and however to be meerly voluntary and fraudulent as to the Defendant, he not being the Issue of Blanch, and so not within the considera­tion of the tripartite Deed and Settlement, and the Plain­tiff being a Purchasor, and the Defendants Father or Grandfather being taken by the Plaintiffs Father to be seised in Fee when they made the Mortgage.Whether a legal defect in execu­tion of a power may be supplied in Equity. And it was farther insisted on by the Bill, That Sir Nicholas having a power to charge the Premises with the payment of 2000 l. and the Mortgage being for 2000 l. tho it were by way of Conveyance of the Lands, and not by a charge of the Lands, and so according to strictness of Law not good, yet in Equity it ought to be taken as in Execution of the Power, and that nice legal Defect ought therefore to be sup­plied in Equity to the Plaintiff who is in under a Purchaser.

For the Plaintiff it was farther insisted, That Sir Nicholas's Power ought to be knit to his Interest, and so come in supply of his Interest to make the Mortgage good. And if a Person that hath power to charge Lands for a Sum of Mony, do for the like Sum convey Lands to an other, and covenant to make farther assurance, (as here,) Equity will compel him to execute his Power to the benefit of the Person from whom he hath received the Mony. And the Defendant was Heir to Sir Nicholas and his Father,Whether if a Man that hath power only to charge Lands, conveys them for so much as he hath power to charge them, which shall in Equity inforce him to exe­cute his power to the same Per­son. and bound by their Covenant to farther the assurance.

Whereunto it was answered by the Defendants Councel, That the Defendant does not claim as Heir to his Father or Grandfather, but by the Settlement, and that he was Heir Male of the Body of his Father, and was within the consideration of the 2500 l. Portion which the Grandfather had, and which belonged to the Father; and however if that Settlement had not been made, the Defendant was Issue in Tail by the Settlement made by Edward Kemis his Will. And it was farther insisted, that the Mortgage by which Sir Nicholas had power to charge the Lands was dischar­ged, he having conveyed all his Interest out of him there­by, and that so he was disabled to execute his Power after. And it was also insisted for the Defendant, That Equity [Page 105]in this Case ought to follow the Law, the Defendant claim­ing by precedent Title to the Plaintiff in such manner, that there was no Equity to bind it farther than by Law it is bound;Where a power to charge Lands shall be destroy­ed by the Con­veyance of him that hath the power, and where not. and in truth it did appear (howheit it was not found in the Special Verdict) that Sir Nicholas did after the Mortgage to the Plaintiffs Father, in pursuance of his Power charge the Premises with 2000 l. Debts which he owed, which Debts the Defendants Father paid accord­ingly.

The Lord Keeper conceived the Power was not destroy­ed by the Mortgage, because it was by Lease and Release, and not by Fine or Feoffment. Yet both He and the Master of the Rolls were of Opinion that the Plaintiff could not be relieved in Equity. Nevertheless at the Plaintiffs im­portunity he directed a Case to be made, and after Michael­mas Term 1668. he dismist the Bill.

The Lord Keeper. Justice Tirrel. Justice Rainsford.
Haynes and others Executors of Smithby against Harrison and others Farmers of the Customs. May 19.
On a Demurrer to a Bill of Review.

THE Bill was, a Bill of Review to reverse a Decree made by the Lord Chancellor Hide, for that by that Decree all Interest due on several Securities by Bond and Iudgments, and Costs at Law suffered before the first Bill in suing those Securities, were taken away upon a pretence that the Mony lent the Defendants by the Plain­tiffs Testator,Errors assigned. was paid by them to the King in considera­tion of their Farm of the Customs which they did not en­joy, whereas their Testator was not concerned in the Bar­gain; and if disposing Mony by the Borrower, and any accident befalling it afterwards should create an Equity against the Creditor, it would destroy all Commerce. And by the course of the Court, which is the Law of the Court, [Page 106]where Interest is due on a Bond,Where Interest is due on a Bond, and the Debtor pay any Sum less than the In­terest, the pay­ment is to be ac­counted Interest only. and the Debtor pay any Sum less than the Interest, the Payment is to be account­ed Interest only, yet the Decree allows such Payments (although they were much less than the Interest than due) for Principal. And the Court hath also taken away the Plaintiffs Costs at Law, tho by the Decree 800 l. is still due to the Plaintiffs on legal Securities, and the Proceed­ings and Costs at Law were before any considerable part of the Principal was paid, taking the Interest for the Principal, as the Decree doth, so that the Proceedings were legal, and without those the Plaintiffs Testator could not recover his Debt, and so ought to be allowed those Costs.

The Defendants demurred, and insisted that there is no Error in the Body of the Decree, nor new Matter to reverse it, and insist that this Court ever had a Power upon Circumstances to relieve against Penalties, Iudgments and Executions, and to abate and moderate, and sometimes discharge Damages and Costs. And it was insisted it had exercised such Power in the Lord Keeper Coventries Time.Interest upon a Debt due by Spe­cialty and Costs at Law may up­on Circumstan­ces be taken a­away in Equity. And the Court did declare this Court had a Power upon Circumstances to abate and moderate Costs and Interest, and sometimes to discharge them, and they must take the Decree as they found it, whereby it ap­pears Smithbys Debt was ill made up, and that the Far­mers became bound in consideration of their Farm which they did not enjoy, and Costs are in the discretion of the Court, and Costs discharged there, because there was no oppression. And so the whole Court declared they could not go out of the Decree, and saw no cause to reverse it, and so dismist the Bill.

The Lord Keeper. Chief Baron Hale.
Cuthbert Morely Esq; against Jerome and Henry Elways. June 1.

THE end of the Plaintiffs Suit is to have the Redemption of a Mortgage, made by the Plain­tiff and his Father James Morely Esq; in De­cember 1641. to Jerome Elwaies Father of the Defendants Jerome and Henry. Release of Equi­ty of Redemp­tion. Against the Plaintiffs re­lief the Defendants set up a Release made by the Plain­tiff in 1646. of all his Equity of Redemption, and a Decree made by the Lord Chancellor Hide in this Cause in 1663. which Decree is penned as if made by consent. This Decree being signed and inrolled, and the Plaintiff not able to perform the same, could not have a Bill of Review, nor could he be relieved by such Bill, if it had been brought, the Release barring all his pretences, and that being upon a secret Trust, he could not prove the [Page 108]Trust positively, the Witnesses being dead, and so he was not relievable neither in Law nor Equity. Where­upon the Plaintiff and Baron Greenvil Esq; petitioned the Lords House the last Sessions of Parliament for re­lief against the said Decree and Release. The Cause held many Debates at the Bar of the Lords house before Christmas 1667. The great Question being, Whether the Release was made in Trust, or bona side for a valuable consideration. The proofs offered to evidence the Trust were circumstantial, and not direct positive proofs. One thing offered by the Plaintiffs to evince the truth of their asser­tion to their Lordships in affirming the same to be only a Trust, was, That their Lordships would please to consi­der what Debts were due from the Plaintiff or his Father to the Defendant when the Release was made, and with that to take notice of the value of the Estate released at the time of the making thereof. As to the reading the Proofs to both these, the Parliament being to adjourn in two days, and there not being time, their Lordships ad­journed the consideration of these two things, and read­ing the Proofs to the value of the Estate, desisted until their next meeting after Christmas.

The Lord Keeper present thus far.

But the next meeting after Christmas the Lord Keeper being absent, the Lord Privy Seal sat on the Wool-pack, and the Cause had two days hearing when all the Plain­tiffs and Defendants Proofs were read to the values; and the House, after several days debate of the Matter, being satisfied that by the Proofs it clearly appeared that the value of the Lands was much greater than to make a satisfaction for the Debt for which it was released, did adjudge the said Release to be a farther Trust to pay 80 l. per annum to the Comptroler for Life, and set aside the Decree aforesaid, and referred the Cause back to the Court to proceed as in the Case of an equitable Mort­gage, which their Lordships adjudged this to be.

Lunae primo Junii 1668. This Cause was heard in Court, when a Decree was made for the Defendants to come to an Account, and the Plaintiff to be admit­ted to the Redemption of his Estate: The ordering part is as followeth.

First, That Jeremy Elways come to an Account for all the Profits of the Lands in Question, which he or his Father, or any other to his or their use, or by their di­rection or appointment, have or might without their own wilful default have received. That Sir William Glascock should take the account, but with this direction, that in Case the Lands mortgaged in Fee were not a sufficient Secu­rity for the Mony due to the Defendants Father, and for which he now stands engaged for them, and the pre-engage­ment that was thereupon at the time of the Defendants Fathers taking the Sequestration over,A Mortgage for an Estate for Life on an old Mortgage shall not account for more than the Estate had been worth to be sold. and besides the other Lands mortgaged, in which at the time of the De­fendants Entry and the Release made, the Plaintiff had only one Estate for Life, that then the Defendant shall be charged in the Account no more for the Lands held for the Plaintiffs Life than the Master shall really judge them to be worth, without respect to the benefit that hath happened by the continuance of the Plaintiffs Life.

Yet upon Ap­peal in Parlia­ment ordered otherwise.The Plaintiff grieved with this direction, procured a Re-hearing by the Lord Keéper, assisted with the Lord Chief Iustice Vaughan and Chief Baron Hales, and they con­firmed this Order, and that in respect of the contingency of the Estate, and not for what was made, the Mortgage being above twenty years old.

For the Plaintiff it was insisted, That this was a new direction without a President, and that it was safer to judge what was, than what might have beén; and that at this rate the Western Estates would not be mortgageable.

The Plaintiff by Petition complained of this direction to the Lords in Parliament, and upon a solemn Hearing at the Bar of the House, he was relieved; and the Lord Keéper ordered to direct the Mortgagée to account for the whole Profits of the Estate for Life, as in the Case of other Mortgagees.

Baron Turner.
Delamere against Smith the Executor of Smith.

THE Plaintiff having had great dealings with Smith the Testator, for Mault and other things bought by the Plaintiff, by that means he became indebted to the Defendants Testator in several great Sums, for which he gave him Security by Mortgage, Bond and otherwise.

Afterwards the Plaintiff became a great loser by the badness of the Mault he bought of the Defendants Te­stator, and other accidents, and thereupon Smith and he came to a new Agréement, that in consideration of 80 l. lately before paid, and of 70 l. paid on the Plaintiffs be­half by one Tubbing the Plaintiffs Father-in-Law, and of 40 l. more promised by Tubbing at a short day, that if the 40 l. were paid accordingly, that then if the Plaintiff should pay Smith 800 l. in four years by 200 l. per an­num, that the said Smith would deliver up the Plaintiff all his Securities, &c.

The Mony was all paid to Smith the Testator but 104 l. though not at a precise day; so to have those Securities up upon paying what was unpaid upon the last Agreement, with damages from the time it should have béen paid, is the scope of the Bill.

In this Case it was insisted for the Defendant, that where a greater Sum is due by specialty, and a less agréed to be taken for it to be paid in certain Sums at certain days, if the Agréement be not strictly pursued, and the Monies paid precisely at those days,Whether when a lesser Sum is agreed to be ac­cepted at precise days in lieu of a greater, If he that is to pay, fails in payment at those days, he shall not have any benefit by that Agreement. but part of the Mony paid at other days, a Court of Equity ought not to oblige him that made that Agréement (in favour of the person failing to perform it) to stand to it upon payment of so much as will make up the Mony paid since the last Agréement with Damages for the same from the respective times the same should have beén paid by that Agreément, to the times the same were paid, and Damages for what remains un­paid, till the same be paid. But if the Plaintiff would have any benefit by the Agreement, he ought literally to have [Page 111]performed it, which was in his favour and without any pe­nalty; and therefore insisted that the Plaintiff was not to have any benefit by that Agréement.

The Baron ordered this matter to be made into a Case; but as yet nothing done therein. And it is to be observed in this Case, that part of the Consideration of the Agree­ment was, that Tubbing (who was not obliged by any former Security) had paid Smith 70 l. and undertook to pay him 40 l. more; so Smith bettered his Security, &c.

Degg against Osbaston.

Mony paid in by the Borrower to the Scrivener, no good payment to conclude the Lender.THE like Case with that of Hen and Conisby, antea fol. 93. and upon solemn debate ruled as that was: And in both these Cases the Mortgageé was ordered to take his Principal without his Interest; and time was given for payment of the Principal (viz.) a years time.

The Lord Keeper.
Sir Geoffry Palmer the Kings Attorny General on the behalf of Jerome Smith, a Lunatick, against Sir Robert Parkhurst and others. Octob. 26.

THE Bill did suggest, that by Inquisition taken before the Mayor of London, by virtue of a Writ to him directed, the said Jerome Smith was the 23d of June, 1664. found a Lunatick, and had lucid intervals, and had not sufficient government of himself, his Lands and Goods; and that he was Lunatick the last of June, 1647. and during his Lunacy he had se­veral Sums of Mony due to him which he had wasted, and alienated divers Goods, but to whom the Iurors were ignorant. And did charge that one Archibald owed the Luna­tick during his Lunacy 1300 l. by good Security, and that in 1656. the Defendant caused the Lunatick to assign Archi­balds Debt to him, and had received the same upon colour of a satisfaction given to the Lunatick for the same, where­as that pretended satisfaction was not valuable, and was done in prejudice of the Lunatick: And to have an Ac­count [Page 113]of the 1300 l. and to be relieved, was the scope of the Bill.

The Defendant sets forth by answer, that he sold the said Jerome Smith in 1656. a Manor, which he much de­sired to buy, at 1200 l. it being the place of his Birth; Jerome Smith assigned Archibalds Debt for to satisfie him­self the Purchase Mony, and pay the Overplus to Smith, which he did, and did convey the said Manor to Smith, and insisted that Smith was not a Lunatick at that time, but did usually buy and sell, &c.

A Bargain by a Lunatick eight years before the Lunacy found, avoided by be­ing found a Lu­natick with a retrospect of seventeen years. Yet the Party admitted to tra­verse the Inqui­sition. Note, That ge­nerally a Luna­tick ought to be made a party: But the reason why it was o­ver-ruled here, was, that he might stultifie himself.This being the nature of the Case it came first to be heard before Iustice Tyrril, who although it did appear that the Defendant had coveyed the said Manor to Smith for the said 1200 l. and that Smith did at that time usu­ally barter, and was not found a Lunatick till eight years after, with a retrospect of seventeen years, did order the Defendant to account for the 1300 l. being Archibalds Debt, and to satisfie the same with Damages, without any provision for the Defendants having the Manor again, or account for the mesne Profits. And though it was stood upon at the Hearing, that in case of a Lunatick (where the King hath no Interest in his Estate, but as Pater Patriae commits him to another to manage it for him, the Luna­tick in case he recover his Senses and Wits shall have his Estate again, and if not, it will go to his Administra­tors) the Lunatick himself (as in the Case of an Infant) ought to have béen a Party: Yet that Opinion was over­ruled by the Iudges, and by the Lord Keeper on a Re-hear­ing. But the Lord Kéeper did stay the passing the Decrée, and gave Liberty to the Defendant to traverse the Inqui­sition.

The Lord Keeper.
Carter and others, Creditors of Church, against Church alias Westin and others. Octob. 28.

CHurch deviseth some part of his Lands and Tene­ments to his Executors to sell for payment of his Debts, and the rest of his Lands he devised to marry his Daughter, in Fée, being then a year old, and declares that his Executors shall receive the Profits of those Lands [Page 114]until his Daughter come to the age of one and twenty Dars,Devise of Pro­fits till a Child come to one and twenty years, is a good Devise of a Term till the Child would be one and twenty, though he die before. towards payment of his Debts and Legacies. The ye aughter died at five years old; the Lord Keéper was of Opinion, that the charging the Profits till the Daughter at­tained one and twenty (though she died before) amounted to a Term till she would have attained that Age, if she had lived; and cited Borustans Case, 3 Co. and a Case in Dyer, where Lands were given to a Mother for Education and Maintenance of the Daughter till eightéen years old; the Daughter dyed before eighteén, yet adjudged a good Term to the Mother till she would have attained eighteén, had she lived. And he said that the Principal Case was much a stronger Case.

The Lord Keeper. Justice Windham.
Jacob Ash against Gallen. November 18.

IT was declared that a Vse upon a Vse will not rise by Bargain and Sale, Dyer 155. and Chudleys Case, Co. Rep.

But for the Plaintiff it was insisted, that though a Vse could not rise as a Vse upon a Vse, yet as a Trust it would in Equity. And a Case was ordered to be made, which was this:

Isaac Ash with his own Mony bought Lands of 100 l. per annum, and took the Conveyance by Indenture in these words, Grant, Bargain, Sell, Alien, Enfeoff and Confirm to Isaac Ash his Executors and Assigns; To the use of Isaac for Life; Remainder as to one third to his Wife for Life, Remainder to Jacob Ash and to his Heirs (whose Heir the Plaintiff is) with a Letter of Attorny to make Livery. The Deéd is acknowledged and duly enrolled in Chancery. Two Months after Inrollment Livery is made and indorsed on the Deed. The Plaintiff and Defendants Wife were both Grandchildren to Isaac Ash, who by Lease and Release did convey the Lands in Question, the one moiety to the Plaintiff, and the other moiety to the Defendants and their Heirs; and the Plaintiff did not except to this dispo­sition in Isaacs Life, which if he had, Isaac would (as was insisted for the Defendants) have otherwise provided for [Page 115]them, he having given every Grandchild to the value of 50 l. per annum, but the Defendants, to whom he gave nothing but the moiety of the Premisses.

Whether a Use upon a Use in a Deed inrolled be to be supported in Equity as a Trust.For the Plaintiff it was insisted, that Isaac intended to take the Estate by Feoffment, and that the inrolling of it first was only for safe custody of the Deed; and that however the Vses upon a Vse would not rise in Law, yet in Equity they were good by way of Trust.

For the Defendant it was argued thus upon private discourse of Counsel, that Isaac having by the Deed an E­lection to take it either by Feoffment (which if he did, it would not be in his power otherwise to dispose it) or by Bargain and Sale, whereby he might have power to dispose the Estate as he pleased; and he having elected to take it by Inrolment, and disposed the same by Act executed in his Life, it was apparent he intended to take it so as to dispose it, and therefore no reason in Equity to make any other operation of this Conveyance than the Law made.

There was some diversity of Opinion amongst Counsel touching this Case; but the Parties agréed among them­selves, and it was not argued at all.

The Lord Keeper. Justice Twisden.
Read against Read. November 25.

THE Lady Read, Wife of Sir John Read, had by Petition got a Ne exeat Regnum against her Hus­band, upon suggestion that she having gotten a Sentence for Alimony against him in the Spiritual Court, he re­fused to obey it, and in avoidance of it threatned to go beyond Sea.

The Husband moved for a Supersedeas of this Writ, and whether it lies in this Case was the Question.

For the Huband it was said, that every man may tra­vel where he will, unless he be prohibited by the Kings Writ, Dyer 296. This Writ is a Prerogative Writ,The nature of a Writ of Ne exe­at Regnum. which the King may use as he hath the care of his People, 2 Inst. 54. A Writ de Securitate invenienda not to go beyond the [Page 116]Seas, lies not against a Layman, but a Clergyman only, qui habet Curam Animarum, and they are to maintain the Laws of the Church, which if they went beyond the Seas they might adhere to the Pope, and they have no temporal Estate to oblige them to stay here, and this Writ ought to be indorsed Patronus sequitur hoc Breve; but in this Case no Patron, no Clergyman. 19 Jac. in the Case of Welby and Stevens at the Suit of his Creditors which were many, there this Writ was granted; but a Bill was filed, and none here, Crisp against Bishop, 15 Car. 2. The Writ granted upon Suggestion he was indebted; but on putting in Security, it was superseded.

On the other side, for maintaining of the Writ, and on the behalf of the Lady it was said; The King may restrain a Subject from going out of the Realm, Knowls against Luce, Moor 109. Selden's Janus Angliae 92. saith, It extends tam Laicis quam Clericis. There is no other Writ but this, and if this go not to a Layman, then there is no Writ to a Layman. Its true, all Writs in the Register are Clericis; but that's but an Addition. The ground of the Writ is, That a person is going beyond Sea to the prejudice of the King;No Exeat Reg­num lies for a private matter without a Bill. and the Writ is to give Security not to go till the King licence him, Leigh against Bever, 9 Jac. A President 9 Car. 1. Meads Case, a Ne exeat Reg­num awarded for a private matter. Hill. 52. Boyl against Slugborough, It was a Question, Whether this Writ was grantable at the Suit of a private person.

But the Court resolved this Writ well lies in the prin­cipal Case, and will not supersede it.

The Lord Keeper. Chief Baron Hales. Justice Archer.
Dame Margaret Pridgeon, Relict of Sir Francis Pridgeon, against the Executors of Sir Francis Pridgeon in Trust for Robert Pridgeon, &c.

AFter several Debates on both sides before the Lord Keéper, This Cause came to be further heard by him in November 1668. assisted with the Lord Chief Ba­ron Hales, and Iudge Archer. And the Case was thus:

The Plaintiff being a Widow at her Marriage with Sir Francis Pridgeon, suggests an Agreément precedent to the marriage betwéen him and her, and others on her behalf, That notwithstanding her Marriage the Rents and Profits of all her own Estate, and what personal Estate and Goods she had, should be at her own dispose; and that she was possessed of certain Goods, &c. before her Marriage with him, which the Defendants, the Executors of Sir Francis, claimed,Agreement be­tween Husband and Wife before Marriage extin­guished by Mar­riage. as being his Executors in Trust for the said Defendant Robert his Nephew and Heir, which by the said Agreément she claimed.

For the Defendants it was insisted, that if any such Agreément were with Sir Francis before the Marriage, it was extinguished by the Marriage, and so cited Smith and Staffords Case, Hob. 216. and the Earl of Suffolk and Greenvils Case;This Case of the Earl of Suffolk was in the Com­missioners time. Scot against Bro­grave about 1639. and insisted such like Agreement ought not to be countenanced in Equity, being derogatory to the Rights and Priviledges of Marriage. And on the de­bating the matter of this Cause a Case betwéen Scot and Brograve about 1639. in this Court, was cited,The Wife may not be suffered, though to good Uses, to dispose of any Mony she hath raised out of her Hus­bands Estate by Frugality. which was thus.

The Wife of an improvident Husband had unknown to him by her Frugality raised some Monies for the good of their Children, which she had disposed for that purpose, being otherwise unprovided for, and this disposition of the Wife the Lord Coventry had established by Decrée. But afterwards upon a Review and Assistance of the Iudges [Page 118]this Decrée was reversed, as being dangerous to give a Feme power to dispose of her Husbands Estate. And ano­ther Case between Gorges and Chancy, which was about Michaelmas Term 1639. Gorge against Chancy, Mich. 1639. was cited, which was to this effect.

Baron and Feme by Agréement separated and lived apart,A disposition by Feme Covert of Monies raised out of separate Maintenance good against the Husband. and agreed that the Wife should have 150 l. per annum separate Maintenance, out of which she had saved some Mony and put it out to Interest, and took Bonds in a Friends Name, and disposed the Mony by Will, and this upon Debate was established a good disposition; and this was now declared to be a just Order.

But note, That in this Case it was an Agréement after Marriage with Friends in the behalf of the Wife for a se­parate Maintenance: But in the principal Case the Chief Baron declared, That though where an Agreément is be­twéen Baron and Feme before Marriage, that the Wife may by Will dispose of part of her Estate, or for a thing which is future to the Marriage, such an Agreément is not dissolved by the Marriage; yet where an Agréement is to have Execution during the Coverture, as in the principal Case, there the Marriage extinguisheth such an Agréement. And the whole Court concluded the Plaintiff had no ground for Relief, and declared she had no Cause of Suit but by way of anticipation; for the Executors did not claim the Goods, but she feared the other Defendant the Infant, for whom they were Executors in Trust, would claim the Goods, &c. Yet the Court declared, that they would far­ther consider of the matter, and the Cause hath not yet received any farther Hearing.

The Lord Keeper.
Goddard against Complin. January 27.

Where 'a Mort­gagee lent new Mony on his old Security without notice of an in­tervening settle­ment, shall be al­lowed it.TEnant in Tail demiseth his Lands for ninety nine years by way of Mortgage, and after marries, and in consideration thereof, and of 500 l. Por­tion suffers a Recovery to enable him to settle a Iointure; and afterwards takes up more Mony of the Mortgage upon the former Security. The Iointress was Plaintiff, and the Question was, Whether the Defendant should be allowed Mony lent after the Recovery and Mar­riage.

And the Court declared, that if the Defendant had no notice of the Iointure when he lent the new Mony, he must be allowed it.

What is good proof of pay­ment of Mony against a Pur­chasor.Another Question was, Whether the Defendant had proved payment of the Mony supposed to be lent; and as to that there was the Receipt in the Deed of Mortgage, the Condition of Redemption on repayment of the Mony and the Defendants Oath that he had paid it, which was [Page 120]insisted on, was Evidence enough of payment after ten years against any Person, and so the Court inclined.

But the Plaintiff standing upon it, that it was not suf­ficient Evidence as against the Plaintiff, who claimed as a Iointress, there was farther Evidence.

A Recovery sub­sequent to a col­lateral purpose shall enure to make good pre­cedent Estates.There was also this Question put, Tenant in Tail mortgageth for years, and afterwards upon Marriage in consideration thereof suffers a Recovery to settle a Ioin­ture, &c. Whether this Recovery should enure to make good the Mortgage, it being designed for the Marriage Settlement only. Which was answered, If no Recovery had been, there could have been no Iointure. And the Iointress could not have avoided the Mortgage. And she is in by the Act of her Husband; and no subsequent Act of the Husband could avoid his own Act precedent. And it was also declared, That if Tenant in Tail confess a Iudgment, &c. and suffer a Recovery to any collateral purpose, that Re­covery shall enure to make good all his precedent Acts and Incumbrances.

The Master of the Rolls.
Collet against Jaques. February 8.

A Rent and Ar­rears of it decree­ed (the Deed be­ing lost) because it did not ap­pear what kind of Rent it was.THE Bill was for 3 l. for a Rent of 5 s. per annum Arrear for twelve years. The Plaintiff suggested that the Deeds by which the Rent was created, were lost, and also the Rent for the future, and there was proof of a constant payment of it till the last twelve years. And the Master of the Rolls decreed the Defendant to pay the Ar­rears and growing Rent, because he said it was uncertain what kind of Rent it was, and so no Remedy at Law; and here the Person is made liable for the Rent, which for ought appeared he was not at Law.

The Master of the Rolls.
Duncumban an Infant against Stint Executor of Stint. February 1.

An Executor decreed to give Security for a Legacy.THE Defendants Testator gave the Plaintiff 1000 l. to be paid at the Age of twenty one years.

The Bill suggested the Defendant wasted the Estate, and prayed he might have his Security to pay this Legacy when due; and the Master of the Rolls did accordingly de­cree the Defendant to give Security.

The Master of the Rolls.
Eaton Colledge against Beauchamp and Riggs. February 5.

An Executor decreed to pay Arrears of Rent which the Te­stators Person was not liable toTHere was a Rent or Pension of 1 l. 14 s. per annum granted by King H. 6. to that Colledge, issuing out of Lands. Riggs was Executor of the Ter-tenant, and to be relieved for the Arrears of the Rent incurred in his Testatrix life-time, was this Bill brought, which did sug­gest that the Colledge did not know the Lands out of which the Rent went, and so would not distrain. Beau­champ was the present Ter-tenant, and tho the Person of the Ter-tenant was not chargeable with the Rent at Law, but only the Land by way of Distress; yet forasmuch as the Testatrix held the Land, and did not pay the Rent, it was said, that thereby the Personal Estate of the Testatrix was augmented. And so the Master of the Rolls decree­ed the Executor to pay the Arrears as far as he had Assets of the Testators Estate.

The Lord Keeper. Justice Tirrel. Justice Moreton.
Slingsby against Hale. February 14.
On a Demurrer.

THE Bill was, A Bill of Review to reverse a De­cree made about twenty years since, wherein the Mortgagor being Plaintiff against the Mortgagee to have a Redemption, it was decreed accordingly, paying the Mony to be found due on Account; and for that purpose referred to a Master to take the Account. And it was also decreed, that if the Plaintiff failed to pay the Mony at a day to be set by the Master, the Defendant should hold discharged of all Equity of Redemption.

Pending the Reference the Suit abated by the death of one of the Parties Defendant, yet the Account went on without any notice taken to the Court of the Abatement; that the Executor being a Defendant to the Original Bill, the Master was attended on the behalf of both sides, and made up his Report, and that confirmed and decreed, and that Decree inrolled near twenty years since. And now the Plaintiff being Devisee of the Mortgagor, by Bill of Review assigns these Errors, and now excepts against the Decree.

First, For that in respect of the Abatement, there was no Cause in Court when the Account was stated, and the De­cree drawn up and inrolled.

Secondly. That it was Error for the Court to make a Decree for the Defendant to hold free of Equity of Re­demption on the Plaintiffs Bill.

Proceedings af­ter an Abate­ment decreed and inrolled, no Error or cause of Reversal.The Demurrer was in nullo Erratum, and the Plaintiff not intituled to a Bill of Review.

To the first it was answered it was only an Exception in point of Form, and not in point of Right; and that the Account being stated and settled ought not after such length of time to be let lose or ravelled into; and as to [Page 123]this Point cited the Case of the Lady Cranbourn and Mr. Dalmahoy.

And as to the second it was said that Circuity of Action is to be avoided, and that there were many Presidents of Decrees in this manner for the Defendant, and that what was decreed for the Defendant was most just, and could not be denied upon the account of Iustice.

And the Court declared, they saw no cause to alter the Decree; and so allowed the Demurrer and dismist the Bill.

After a Complaint of this in the Lords House, the matter of the Demurrer was reheard the ninth of March 1670. by the Lord Keeper, Chief Iustice Hale and Vaughan. And on long debate they seemed to incline against the Plaintiff; but took time to consider. And after 21 July 1671. they all three delivered one uniform Opinion clearly,A Devisee can­not maintain a Bill of Review because he is not in privity. That the Plaintiff being Devisee is not intituled to a Bill of Re­view, being not in privity to the Testator, against whom the Decree was; as if a Iudgment be against Land, and the Owner aliens the Land, the Alienee cannot bring a Writ of Error, nor the Vendor; and so dismist the Bill for this reason principally. Yet the Keéper and Chief Iustice Hale were of Opinion that the Error assigned was no sufficient Error to avoid the former Decree; but not­withstanding the Abatement the Account ought to conclude and stand as an Account stated.

Justice Wyld.
Weymberg against Tough. February 24.
On a Demurrer.

THE Bill was to be relieved against an Action of Debt for Mony due to the Defendant as a Mer­chant, from the Plaintiff, for Wares sold in Denmark. The Equity was, That in the time of Hostility between that Crown and this, the Defendant being a Subject to this Crown,Where Articles of Peace be­tween 2 Crowns can discharge a Subjects Debt. the Plaintiff was forced to pay the Mony he owed the Defendant to Commissioners authorized in that behalf to the King of Denmark; and that by the Articles of Peace between the two Crowns, it was agreéd, That all Monies [Page 124]so exacted from each others Subjects should be compensated by setting one against the other, and that the Parties that paid the Mony to either of the Kings Orders should be dis­charged against the Creditor.

To this Bill the Defendant demurred, and insisted there was no Equity, and that if the Articles did bind private Persons, they were as good at Law as here; but at Law they did not bind, for the Defendant had a Verdict.

Chancery a Court of State.For the Plaintiff it was insisted, That the Chancery was a Court of State, and that the Articles of Peace were inrolled there, and that the Bill was to have Witnesses ex­amined beyond Sea. The Iudge ordered the Defendant to answer.

The Lord Keeper.
Marah More against Nicholas Grice and others.

THE Plaintiff Marah's Mother was Sister of the De­fendant Grice, and by Articles of Agreement made between Thomas More the Plaintiffs Father and Nicholas Grice the Defendant (in behalf of his Sister the Plaintiffs Mother,) it was agreéed, That in consideration of 800 l. agreed to be given with the Plaintiffs Mother in Portion to the Plaintiffs Father (whereof 600 l. was Nicholas's own free Gift,) That the said Nicholas should stand seised in trust of the Lands in question, as a Iointure, for the proper use of the Plaintiffs Mother for and during her na­tural Life, the Remainder to the Issue of her Body (which the Plaintiff only is) the Remainder to the right Heirs of Thomas More. These Lands were in truth mortgaged by More before, and the Defendant did pay him 500 l. of the Portion, and was wrought upon by him to deliver up the Articles, and for 5 l. to release to More the Lands, and More and his Wife had by Deed and Fine sold the Lands away; and so to be relieved against the Breach of Trust was the intent of the Bill.

And for the Plaintiff it was insisted, that the Defendant ought to make good to the Plaintiff the value of the Lands ever since her Mothers death, who died about 20 years since, and the full value of the Lands, if to be sold (by the Agrée­ment the Lands being to come to her immediately after her Mothers death.)

But for the Defendant it was insisted, That if there were a Breach of Trust, it was no ill intent in him, nor any thing to his benefit, but to comply with the necessity of the Plaintiffs Father (who is still living,) and if a Settle­ment had been made according to the Articles, it might have beén so awarded, that he and his Wife might have prevented the Estate from coming to the Plaintiff. And they did after sell the Lands by a Fine; and however the Plaintiffs Father, according to the true meaning of the Articles, was to have had at least an Estate for Life in the Lands: For it was absurd to think, that the Husband in Marriage should settle his Lands on his Wife and her Issue, and exclude himself for life; and being mentioned in the Ar­ticles, that the Wife should have them for a Iointure,The word (Jointure) in an Agreement, im­plies, that the Husband shall have an Estate for Life as well as the Wife. and after to her Issue, The very word Jointure did imply that the Husband should have an Estate for his life as well as the Wife, and that was the usual way of settling Iointures for life on the Husband, and then in Remainder to the Wife for life. And it was said, That if a Bill had been brought against More to compel him to make a Settlement according to the Articles, the Court would never have excluded him of an Estate for his own life. And of this Opinion the Lord Keeper declared he was as to the Husbands Estate for life, and that he ought to have the Premises by intention of Agreement for life. And therefore, and inasmuch as 600 l. of this Portion was agreéd to be given by the Defendant as a free Gift of his own, and it was uncertain what the value of the Lands might be after the Plaintiffs Fathers death, and there was 300 l. of the 800 l. unpaid, the Lord Keéper proposed, that the Plaintiff should have the said 300 l. with Damages, and the Defendant to pay it her accordingly. And so it was decreed.

Hele against Stowel. May 8.

THE Husband devised his Lands to his Wife during the Minority of his Son, and dies, and hath only a Posthumus Son, and by his Will gives his Wife power to make Leases to raise Mony to pay Debts, &c. The Wife enters and takes the Profits, and then marries a second Husband, and he lives some years,Where Rents taken by colour of a Title that's avoided, the Re­ceiver shall be ac­countable as a Bailiff. and takes the Profits, and dies, and the Wife continues to take the Profits of such part of the Land as she had not let; for the did let some part according to the Will. This Son attains his Age, and proves a Revocation of the Will, and prays his Mother may account.

Ordered that she shall account for all the Profits that Herself or her Husband took; and the reason was, that she should be said to take them till the Infant was 14 years of Age, as Guardian, and after as Bailiff. And she was to answer as to what her Husband took; as in a Devastavit, the Wife having no notice of the Revocation, had paid Legacies charged on the Lands by Will.

Legacies paid by colour of a Will which is after found to be re­voked, allowed.Ordered that she be allowed those. But as for the Leases she had made, tho they were for Fines and full Rents, tho she offered to account for the Fines and Rents, The Court would not make them good, because the Mother could not set or let Lands.

The Lord Keeper. Justice Rainsford. Justice Wyld.
Holstcom against Rivers. May 10.

THE Defendant and one Collins were Factors for the Plaintiff in Spain before 1654. In that year they sent him to London on account, and charged themselves with divers Goods of the Plaintiffs in specie. In 1656. there hapned an Imbargo on English Ships and Goods in Spain, and a Seizure of all the Goods in the Defendants and Collins Hands, and on their Books, and the Defendant was cast in Prison on that account, and the Bill was now to call the Defendant to an Account (Collins being dead) without making his Executrix a Party.

For the Defendant it was insisted, That by reason of the Seizure and Imprisonment, he could not account, ha­ving lost his Books, and never seen them since, and that the Plaintiff had beén twice over with Collins Executrix, and she was no Party, and that after this length of time. it would be hard to draw the Defendant to an Original Account.

The surviving Factor is an­swerable for himself and Co-Factor.Court. It was resolved for Law, That (tho inter Mercatores jus Accrescendi hath no place,) yet the surviving Factor was to account for what was made by himself or Co-Factors; and yet it was agreéd, that in this Case an Account lies against the Executrix of the dead Factor. And so it was ordered,The Executor of the Co-Factor first dying is ac­countable. That in respect of the length of time since the Account was sent, and no clear proof of any Exception to it till after the Seizure, and that when the Account was sent over the Plaintiff was writ to, to send his Exceptions speédily, if any he had, that the Account should not be ra­velled into, but ordered the Defendant to account for,An account rest­ed upon 14 years is conclusive. and satisfie what had been made by sale of the Goods remain­ing in specie in the former Account before the Seizure. But in regard of the length of time, and the loss of the Books (which the Defendant had sworn by his Answer) It was ordered, That the Defendant should not be charged in this Account for more than according to his own Oath [Page 128]what was made, or he did remember or believe was made by the sale of those Goods.Where an Ac­countant having lost his Papers by no fault of his own, shall not be charged beyond his own Oath. And with these Directions, it was referred to Merchants to take the account, who made a direction tending to draw a harder direction from the Court upon the Defendant in the way of his accounting. Where­upon his Lordship appointed to rehear the Cause, and the same was accordingly reheard by him, assisted by Mr. Iu­stice Rainsford and Mr. Iustice Wild, and upon long debate the former Order was confirmed.

Prat against Colt. May 11.
On a Demurrer.

A Trust of Lands no Assets.THE Plaintiff had a Iudgment against George Colt, and brought his Bill against his Heir, to subject cer­tain Lands which he had a Decree of this Court for, upon a Trust for his Father and his Heirs to satisfie his Debt; and the Defendant demurred, and this Demurrer allowed: And the Lord Keeper conceived it all one with Bennet and Box's Case. But quaere since the Statute of Frauds and Perjuries.

The Lord Keeper. Justice • Twisden, , • Wyld, , and • Rainsford. 
Vachel against Vachel and Lemmon. July 1.

TAnfield Vachel by his last Will in Writing deviseth to the effect following, (viz.) I give the Use of all my several Paintings and Books of Print, my coloured Collection of Medals in Gold, Silver and Brass, all my rare Turnings of Ivory and Guyacomb, with my Press of Books and Chest of Drawers with the Per­spective in it, to my dearly beloved Wife (being the De­fendant Rebecca Vachel) during the Term of her natural Life: And my Will is, That if she be with Child of a Son, that then after her decease the same Paintings, Books of Print, &c. shall be left, remain and come to the same Son; But if my Wife be not with Child of a Son, or if the same Son shall die without Issue Male of his Body, then my Will is, That all the said Paintings, Books of Print, &c. after the decease of my said Wife, and the death of such [Page 130]Son as my Wife is now with Child of, shall come and re­main to the use of Thomas Vachel (the Father of the Plain­tiff) of which my Will is, That the said Thomas Vachel shall have the use only during his Life, and that he leave them to my Kinsman Thomas Vachel his Son (the Plaintiff) and that he shall as far as in him lies, so dispose thereof to him that shall by Gods Blessing next succeed himself in my Man­nors and Lands in the County of Berks, that they remain as an Heir loom, and go and remain to such Person and Persons as shall inherit my said Mannors and Lands, who I desire may prove Lovers of Learning, Ingenuity and Arts, which Clause the Defendants insisting to be revoked by a Codicil, and the Matter as to that Point having beén fully heard, and his Lordship having had the Opinion of Civilians therein, did on the first of May last declare his Iudgment to be, That the use of the aforesaid Rarities was well set­led by the Will of the said Testator upon the Plaintiff Tho­mas Vachel after the death of the said Defendant Rebecca Vachel, and not revoked. But the Defendants Councel then insisting, That tho they were admitted to be agreéable to the Civil Law, yet the very Limitation in the Clause of the Will of the Rarities to the Plaintiff was void by the Common Law. His Lordship for the Defendants farther satisfaction, declared he would have the Opinion of the Lords, the Iudges therein upon that single Point of the Limitation of the Rarities, whether the same were a good or void Limitation. And the Cause now standing in the Paper for a determination in that Point, his Lordship de­clared he had advised with the Lords the Iudges, and now assisted with Mr. Iustice Rainsford and Mr. Iustice Wyld, upon deliberate consideration had of the Clause aforesaid, in the Will, whereby the use of the Rarities are devised to the Plaintiff after the death of the said Rebecca Vachel; And forasmuch as the said Thomas Vachel the Plaintiffs Fa­ther died in the life-time of the said Tanfield, and the De­fendant Rebecca being not with Child of a Son, so as the Contingencies upon which the Limitation was made never happening,A Limitation of personal Chat­tels to one du­ring Life, Re­mainder to an­other, good. His Lordship with the Lords the Iudges were all clear of Opinion, that the Devise of the said Thomas Vachel was an absolute Devise, and good in Law, and that the Defendant Rebecca Vachel ought only to have the use of the said Rarities during her life only, and the Plaintiff is to have the same after her death according to the said Will, and doth order and decree the same accordingly, and that the [Page 131]Defendant be examined upon Interrogatories for the disco­very of the particulars of the Rarities and Matters so de­vised, and that an Inventory of the said Rarities be made ac­cording to the said Order of the first of May. And as touching Security now prayed by the Plaintiffs Councel, and other Matters for final compleating this Decree, the Court de­clared, that the same was not the proper Business of this day, and they would not now determine the Matter, but leave the Plaintiff to move this Court therein, and then such farther Order shall be made as shall be just.

The Lord Keeper. Justice • Twisden, , • Rainsford, , and • Wyld. 
Wood against Sanders, or Sanders against Wood. July 1.

A Long Term of years was assigned upon a Trust to permit the Father to receive the Profits for sixty years if he live so long; and after his death to permit the Mother, his Wife, to receive the Profits for sixty years, if she so long live; and after the death of the Father and Mother to permit John the Son his Executor, &c. in case he survive his Father and Mother, to receive the Rent, &c. And that the Trustees at the request of John after the death of his Father and Mother should assign to him, his Execu­tors, &c. But if John die in the life-time of his Father and Mother, and leave Issue, which shall be living at the death of his Father and Mother, then the Trusteés to assign the Premises to such Son of John which shall be his eldest Son at that time, &c. but if John die without Issue before any such Assignment, that then the Trustees shall permit Edward another Son of the said Father and Mother, and the Heirs of his Body, and in default of such Issue Nicholas a third Son of the same Father and Mother, and the Heirs of his Body, and for default of such Issue the Executors, &c. of Nicholas to receive the Profits of the Premises during the Term, to their own Vses: John dies Intestate in the life of [Page 132]his Father and Mother, and without Issue, and before any Assigument the Father and Mother die; Edward the Son enters and receives the Profits, and dies Intestate without Issue; Elizabeth his Wife takes Administration, enters and receives the Profits; Nicholas the third Son takes Admi­nistration to John his Brother, and procures the Trusteés to assign to him.

The Question was, Who hath the right to this Lease, whether Nicholas the Administrator of John (who died in his Fathers life) or the Adimistrator of Edward, who en­joyed during life, or Nicholas the third Son in his own right?

Where the Trust of a Term is to one for life, the Remainder for Life, the Re­mainder to a third Person (if if he outlive the Tenant for Life) the Remainder to another and his Heirs, that the Remainder to the third Per­son (he dying before Tenant for life) does not vest it in his Ex­ecutors.It was unanimously resolved, That where the Trust of a Term is to one for Life, the Remainder for Life, the Remainder to a third Person for the whole Term (if he out live the Tenants for Life) the Remainder to another as Heir to Edward the Son, and the Heirs of his Body, that the Remainder to the third Person, viz. John, being meer­ly contingent, was not so vested in him as that his Execu­tors could have it, he dying before his Father and Mother, and that the contingency not hapning, he dying in the life of Tenant for Life, the Remainder over to Nicholas was well limitted after such a contingent Remainder. Vide as to this Point the Case of the Duke of Norfolk.

The Lord Keeper.
Smith against Palmer. October 25.

UPON a difference betweén the Plaintiff and one John Browning, an Award was made that Browning should pay the Plaintiff 5 l. in hand and 23 l. at several days, and for that purpose Browning to enter into a Bond of 50 l. penalty. This Bond was taken in the Name of Brown. Browning exhibits his Bill against Smith, and Brown suggesting a Fraud in obtaining the said Bond, and that the same was in Trust for Smith. Smith and Brown joyn in an Answer to that Bill, and there Smith swears that he was indebted to Brown more than 23 l. and that Browning being awarded to pay him that 23 l. Brown did accept of that Bond for so much of what Smith owed Brown, and so said it was not upon any Trust for Smith, but taken to Browns own use, Brown being dead and the Defendant his Executor. The Plain­tiff Smith vy his now Bill séeks to have the Bond out of Browns Executors hands, and chargeth his Name to have béen used in Trust for the Plaintiff.

The Defendant pleads the former Answer in the other Cause, and that thereby the now Plaintiff had denied any Trusts in Brown for him, and swore the Bond was taken in Brown's Name for his own use, prout.

The Plaintiff replyed, that Brown was his Solicitor in the other Cause, and that he answered by his advice, and that he advised it was fit to answer to them, and for that purpose advised the now Plaintiff, before he put in that Answer, to enter into a Bond to Brown for more Mony that so he might swear as he did in that Answer, which Bond he promised Smith to deliver back when he had put in his Answer,A Trust decreed for a person who in his Answer on Oath in ano­ther Cause had denyed the Trust because drawn in to answer so by Fraud. and did so, and averred he was at the whole Charge in defending the Suit, and that Brown after that Answer owned the Trust in that Bond of 23 l. for the Plaintiff, and there was proof of that.

And upon the hearing of this Cause it was taken to be a Fraud in Brown to draw the Plaintiff in to put in such an Answer upon Oath in the other Cause, that the Bond was in Trust for him: And the Defendant was decreed to deliver up the Bond to the Plaintiff with a Let­ter of Attorny to put it in Suit.

At the Rolls. The Master of the Rolls.
Richard West Clerk, and divers others the Church­wardens and Overseers of the Poor of Great Creaton, against Knight and his Wife, Execu­trix of John Palmer. October 27.

JOHN Palmer had by Will given 50 l. to the Parish of Great Creaton, where he was born (without saying to what use) The Minister, Churchwardens and Overseérs for the Poor exhibited this Bill for the 50 l suggesting that he intended it for the benefit of the Poor.

The Defendant the Executrix confessed the Devise, and offered, if she were bound to pay it, to assign some Secu­rity for Mony owing to the Testator to satisfie it.

10 May 1669. This Cause was first heard by the Ma­ster of the Rolls: And it being then insisted by the Defen­dants Counsel, that the Devise was void, and that the Parish being no Corporation could not sue for it by Ori­ginal [Page 135]Bill, and that it was a void Devise for that there was no Vse limited touching the 50 l. whether it were for the Poor, or for Repair of the Church, or Highways, &c. And it was stood upon that if the Plaintiffs had any ground of Relief, it must be by Commission of charita­ble Vses, and not by Bill. The Master of the Rolls ordered Presidents to be produced before he would deliver his Opinion.

Relief given by Bill on the Sta­tute of Chari­table Uses.And now at this day upon farther hearing of the Cause, a Decree of this Court 30 June 1657. was produced, St. Johns Colledge against Plat, where upon the advice of four Iudges, it was resolved, that upon an Original Bill the Chancery might relieve within the Statute of Charitable Vses,Mony given to a Parish general­ly without say­ing to what use, decreed to the Poor of the Pa­rish. and therefore and inasmuch as the 50 l. was the personal Legacy, and no Devise of Lands de­creed, that the 50 l. be paid as far as the Defendants have Assets of their Testator, and directed it to an Account to see what Assets, and the Master to whom it was refer­red to see the Mony disposed for the benefit of the Poor of the Parish.

The Lord Keeper. Justice Windham. Baron Turner.
Nelthrop and Margaret his Wife against Hill, Biscoe and Ann his Wife. October 6.

THIS Cause was heard first before the Lord Keéper. The Case. The Plaintiff Margaret and the De­fendant Ann were the two Daughters of Smith, who having made his Will eighteen years since, and Hill Exe­cutor and Curator of the Children (both then in Infancy) by his Will gave several Legacies, and then gave the residue of his personal Estate to be equally divided be­tweén his two Daughters, Ann and Margaret; and if both die before Marriage or full age, then he deviseth it over to another. Biscoe marrieth Ann the eldest Sister, and then one Moiety of the Estate, which was good, and in the hands of the Executor, is paid to Biscoe and his Wife, and [Page 136] Biscoe settles a Ioynture for this on his Wife, and gives the Executor a discharge.

Afterwards the Executor puts out the other Moiety (Margaret being still in Minority) on Security, and part of it is lost. Then Margaret marries Nelthrop, and they bring this Bill against the Executor, and Biscoe and his Wife to have a Contribution towards the loss born by them, and to have Biscoe refund.

Vpon the first hearing it was so decréed unless Biscoe shewed Presidents to the contrary.

Now upon farther hearing this day (viz.) 10 Jan. 1669. before the Lord Kéeper, Mr. Iustice Wild, and Mr. Baron Turner, It was for Biscoe insisted, That by the Marriage of Ann, her moiety became due, and the Devise over is defeated; so that if Biscoe and his Wife had brought their Bill for it, the Executor could not have denyed payment of it, and so Biscoe hath done no fault, who hath not his Mony till due, and he is not concerned to look any far­ther; and in lieu of the Portion a Ioynture is made, and a Release for the Legacy is given; and probably if the Executor would not have paid, Ann might have lost her preferment, and the Executor was by the Will the Curator of the Children. And it was said, that by Anns Marriage first she became first intituled. And it was in­sisted that where Legacies are payable at several times, and the Legacy that is first due is paid when due, and there is Mony in the Executors hands to pay the other Legacies, that if a loss fall on that afterwards, there is Equity in that Case to put the first paid Legatée to re­fund.

For the Plaintiff it was insisted, That there was in this Case no time limited for payment of either; and that by the Marriage of Ann the Devise over being de­feated, both became due and payable, the Devise being indefinite without any express time of payment: And the Plaintiff Margarets Infancy ought not to turn to her Prejudice; and that it was the Testators intention that they should have it equally, one as much as the other. And if Biscoe had sued, the Executor might have required Security to refund.

And it was said and admitted by the Court, That if Executors pay out the Assets in Legacies,Where a Lega­tee shall refund for want of As­sets. and afterwards Debts appear, and they be forced to pay them, of which they had no notice before the Legacies paid, That [Page 137]the Executors by a Bill here might force the Legateés to refund.

But as to that it was answered, That Case was not like to this; for there was not enough to pay all when the Legacies were paid: But here was enough when the Legacies were paid, to pay all, and the loss since.

And for the Plaintiff it was farther insisted, That a division could not be made without the Plaintiff Marga­ret called to it; and the Case of Grove and Banson insisted on, where Banson had a Conveyance and Statute for his Wifes Legacy, and yet put to refund.

But as to that Case it was answered, There was not any Payment, but a Security, and by that he would have had a Redemption; so this payment was not paid, but exe­cutory.Picks against Vincner 29 Oct. 1639. And the Plaintiff cited the Case of Picks and Vincner upon Sir Henry Martins Certificate, which was the 29th of October, 1639. and was in substance thus, That an Executor may not pay one if he hath not enough to pay all. And an Executor is not bound to pay a Le­gacy without Security to resund,Executor not bound to pay a Legacy without Security to re­fund. if there be want of Assets to pay either Debts or Legacies, which was not, as is said, to this purpose, there being at the time when this Legacy was paid, enough to pay all.

Ordered the Cause be set down to be re-heard origi­nally as well against the Executor as the Legatee Biscoe and his Wife.

Quaere. If there be not a difference betwéen Debts and Legacies thus; Debts may appear to the Executors, but Legacies appear in the Will. And Quaere, if there­fore Executors be not bound more strictly to take Secu­rities against Legacies that do appear, than Debts that do not.

The Master of the Rolls. First Hearing.
Charles Fry Gent. and the Lady Ann his Wife, and Mountjoy Fry an Infant, by their Guar­dian, against George Porter an Infant, by George Porter his Ʋncle and Guardian. Octo­ber 13.

MOuntjoy Earl of Newport had two Daughters, Isabella, who by his consent married Nicholas Earl of Banbury (whose Daughter the Plaintiff the Lady Ann is,) and Ann, who without her Fathers consent married Thomas Porter Esquire, by whom she had George the De­fendant the Infant.

The Earl of Newport being seized of Newport-House in Fée, by his Will in Writing deviseth in these Words:

Item, I 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 in the County of Middlesex, for her Life, and from and after the death of my said Wife, I do give my said House and all other my Tenements in Middlesex unto my Grandchild the Lady Ann Knowls, the Daughter of Nicholas Earl of Banbury, by the Lady Isabella, my late Daughter, and the Heirs of her Body to be begotten. Provided always and upon Con­dition, That my said Grandchild the Lady Ann Knowls do marry with the Consent of my said Wife, and of Charles Earl of Warwick, and of Edward Earl of Manchester, or the major part of them. And in case the Lady Ann Knowls do and shall marry without the Consent of my said Wife, or the major part of my Trustees aforesaid, or shall hap­pen to depart this Life without any Issue of her Body, then I will and bequeath all my said Premisses unto my Grandchild George Porter, Son of my deceased Daughter, the Lady Ann, late Wife of Thomas Porter Esquire, and to his Heirs for ever.

The Plaintiff Fry after the death of the Lord New­port stole away the Plaintiff, the Lady Ann, in the night from Newport-House (where she lived with her Grandmo­ther) over the Garden Wall, and so soon as she was [Page 139]mist by her Grandmother, and she was informed of this fact, she sent to the Earls of Warwick and Manchester to inform them of it, who both protested against the Mar­riage as unfitting for the young Lady, who was at that time about fourteen years of age, and declared their utter dislike of it. Afterwards these two Earls being examined for the Plaintiffs as Witnesses in the Cause, say, That they do assent to the Marriage, and that they do not know but that if their Consents had been asked for before the Marriage, such reason might have been given as they might have consented to it. And they and other Witnesses speak as to the Earl of Newports intent and frequent Declarations, that the Plaintiff the Lady Ann should have Newport-House, which the Plaintiffs Counsel would lay weight upon to interpret the meaning of the Will to be in terrorem only, and not to defeat the Devise to the Lady Ann.

The Bill was to be relieved against the Condition and the Breach of it.

And for the Plaintiffs on the first Hearing, which was before the Master of the Rolls only (in the Lord Kéepers absence) It was insisted on by Serjeant Fountain, that there were three things in Equity upon which the Plaintiff ought to be relieved against this penalty.

1st. That there was no other reason for this Condition and Penalty but to prevent the Ladys Marriage without Consent, and therefore it was to be expounded in terro­rem only.

2dly. That this young Lady was but fourtéen years old, and knew nothing before her Marriage of the Con­dition.

3dly. As she was in her Infancy and knew nothing be­fore her Marriage of the Condition, so soon after as she did know it, she did go to the two Earls (her Grandmother being dead) and they did approve of the Marriage.

For the Defendant it was insisted, that the Infancy or want of notice to her of the Condition was of no weight, for that there was not by the Will any Provision made or any directions given to give her notice, but as she takes by the Will as a Purchaser, so she must take it subject to such Condition as the Will hath subjected it to, and is to take notice at her peril, and an Infant may break a Condition; and this act of hers in marrying was but what the Earl had reason to expect she would do before [Page 140]she came to the Age of one and twenty years, it not be­ing usual for Ladies of her Quality to stay till one and twenty before they marry. And as to the pretence that this Condition was in terrorem, It was said, That it was a Limitation, and that it was by the Will limited over to the Defendant in case of the Lady Anns Marriage without Consent, pari passu to her dying without Issue. And though the Civil Law may construe the Limitation in a personalty over in such Cases as this to be void and to be but in terrorem, yet in this Court in the Case of Inheritances, as this is, nay even in the Case of Per­sonalty where it was limited over as here, this Court hath not at any time avoyded such Limitation over;Where the Le­gacy on Condi­tion the Legatee marry with con­sent is recover­able in Equity, notwithstanding the breach of the Condition, and where not. The constant difference taken in this Court being betwixt a Condition to make the Devise void without limiting it over to another, and the limiting it over to another: In the first of which Cases the Court hath usually construed the Condition to be in terrorem only, because there is no other person appointed to take, as in the Case of Sir Henry Bellasis now cited (which you may sée before fol. 22.) But where it hath been limited over it hath béen always taken otherwise; As in the Case of Davis against Halton, November 1664. the matter here being 1000 l. part of what was given to the party who broke the Condition; and so though it were for a personalty, the Limitation over is good.

The Master of the Rolls. There is no difference in this Case whether it be a Condition or a Limitation, for the Penalty is the same in both: And this must be un­derstood to be in terrorem; and the Infant had no notice of the Condition, and so decréed against the Defendant. And that the Plaintiff, the Lady and the Heirs of her Body should hold and enjoy against him.

Appeal. Lord Keeper. Chief Justice Keeling. Chief Justice Vaughan. Chief Baron Hales.The Defendant appealed from this Order by a Peti­tion, and prayed the Entry thereof might be stayed, and it was so, and ordered to be re-heard by the Lord Kéeper, assisted with the Lord Chief Iustice Keeling, Chief Iustice Vaughan, and Chief Baron Hales, 22 April, 1670. At which Hearing it was insisted by Serjeant Fountain for the Plaintiff that this was a Penalty in terrorem that the Daughter might not rashly marry, but she was then an Infant without notice of it, and the Earls do approve the Marriage.

Serjeant Maynard for the Defendant. Its a Limita­tion, not a Condition: A Will would not pass Lands by the Common Law; its by the Statute, and that says the Will shall stand. And for Notice, the Law requires no Notice to be given, nor did the Earl the Devisor re­quire any: And who should give Notice? The Defen­dant is an Infant, and could we give notice? Mente Testatum ratum est.

Subsequent As­sent will not sup­ply the want of Consent prece­dent.Mr. Solicitor Finch for the Defendant. There can be no Decrée, for the subsequent approbation works nothing, and was extorted by Compulsion. For when the Earls were first acquainted with the Marriage, they disallowed it, and the Estate divested out of the Lady by the Marriage with­out Consent, and the subsequent Assent cannot revest it. The primary intention was in terrorem to restrain the Lady from an imprudent disposal of her self; but the secondary Intention was, that if she did marry without Consent, she should lose the Lands. The Grandfather could not have settled it stronger than he hath. And that the Grand­father may impose such Condition on his Children is not to be denyed. And if this Court should relieve against it, it is to incourage disobedience in Children to Parents. And this is a Case purely at Law, and the matter of No­tice and other Circumstances are all to be considered at Law as well as here, and if not relievable there, its the same here. And if Notice is necessary, as I conceive it is not, that is purely at Law, and possibly it may be found at one Tryal, that there was not Notice, and at another it may be found there was Notice; and it being matter of Inheritance and Freehold, the Defendant ought to be at liberty to try it toties quoties.

A Condition may not be per­formed in all circumstances and yet be re­lieved here.Serjeant Fountain. A Limitation may be at Law, and yet relievable here: As if the Condition be to have the Consent in writing, and the Consent is had without wri­ting, this Court will help in that Case. And he doubted whether a Father can so provide or limit an Estate, as that a Court of Equity shall have no power over it, for it cannot be so provided by agréement of Parties in Case of a Mortgage, that this Court shall not give Relief;Agreement of Parties cannot prevent a Court of Equity in its Jurisdiction. and Equity is part of the Law of England: And there are Emergencies and Cases which a Man cannot provide for; as suppose the Plaintiffs had sent to the Parties for their Consent, and the Messenger never went, but said he did, and had their Consent, and upon this she had married, she [Page 142]should certainly be helpt in Equity.Equity regards the Substance and not the Ceremony. And the end of the Will is performed, she was to marry such person as the Earls should like of, and they have approved, and so the substance is performed; and whether it be a Limitation or Condition is equally penal; and a Limitation over of personal Legacies is void by the Civil Law, I grant; but that in some Cases of a Limitation over there may be Equity it clearly follows in this upon the circumstances of Infancy, and not Notice and Assent subsequent.

The Court would see Presidents. And then 30 May 1670. upon perusal of all the Presidents, the whole Court agréed in one uniform Opinion to dismiss the Bill, and accordingly it was dismist.

Chief Baron Hales argued thus:

• 1. It is to be considered whether this be a good Condi­tion or Limitation.
• 2dly. Whether any Relief be to be given against it.
• 3dly. Whether upon the Circumstances it is relievable here.

• 1st. He conceived it a Limitation and Condition both in Law and Equity, because its collateral to the Land; she may marry if she will, but if without Consent, there is a Penalty.
• 2dly. Its a Condition, because it is to contain the Party in that due Obedience which Law and Nature ob­lige her; and she should have applyed to her Grandmother for her Consent, though there had béen no such Condition. And although in the Civil Law in the Case of a meer personalty, the Limitation over be void, yet this is a De­vise of the Lands not governed by that Law.
  Estates govern­able by the Common Law ought not to be influenced by another Law.
  Estates governable by the Law of this Kingdom without relation to another form ought not to be influenced by another Law, and this being a good Condition, it cannot be in Law defeated, and there being a full breach of the Con­dition, as Law will not, Equity cannot help. And as to the Objection if there may not be Relief against breach of Conditions in Equity, there will be a great shatter in Decrées already made; this Case is not like the Case of a Mortgage, where the Condition is for pay­ment of mony; because there if the mony be not paid at the day there, may be a compensation made by payment at another day with Damages.
• [Page 143]
  The Breach of a Condition an­next to a volun­tary disposition, not relievable in Equity.
  3dly. Again, this Breach is not relievable in Equity, because it is a voluntary disposition throughout, both in equali gradu as to the Settlement and as to the blood of him that made the Settlement. And it appears by the Will of the Earl of Newport, that made the Settlement, that he did as really intend it should go over for marry­ing without Consent, as the Ladys dying without Issue. And he rests much on it that there is no President of any Relief given in this Case;
  Tamen quiaere the two Cases of Peyton and Shipdam, and Cook and Tookey here cited, for Presidents are otherwise.
  for upon view of all the Presidents he doth not think any of them come to this Case; and its not fit to go further than the Court hath gone already, for if they should, there would be no end, and its fit to set bounds. And as to what was offered from the Proof, that it was the Earls Intention that the Lady should have Newport-House, and that therefore it was in terrorem; He said that no collateral Averment to ex­pound the Will ought to be admitted, for if there should, there would be no certainty in any Case. And as to the Earls approving the Marriage since, he said they were charitable therein; and though Equity will favour Infants, yet an Infant may be bound by Law to a performance of a Con­dition; and inasmuch as this Condition is annexed to an Act (Marriage) which she as an Infant might do,
  Whether Notice be necessary to be given of a Condition an­next to an E­state to the per­son to whom the Estate is given.
  the In­fancy will not help. And as to the point of Notice, I will not determine here, whether Notice be requisite and necessary, for that is at Law, and want of it, if necessary, will avail there. I will not say what Equity may do in case of want of Notice, but that Fact is not settled whe­ther Notice or no: It would be hard, because there is not full Notice proved, to conclude here is no Notice, and so would have the Bill dismist.

Keeling agréed, and said, 'Tis fit to kéep those Bonds which Parents impose to hold their Children at Obedience, streight, and not fit for a Court of Equity to relax them.

Vaughan. As to the Consent subsequent, that signifies nothing, for a Man cannot be said to consent to a thing which is not capable of Consent, as to say, a Man con­sents that his Heir is of such a colour is nonsense, for that is not an object of his Consent, and after the Marriage their Consents signifie no more in that Case.

The Lord Keeper declared he was clear of Opinion, That Equity ought not to interpose in this Case, and [Page 144]was glad to see that a Parent could settle his Estate, that it might be out of a power of a Court of Equity, and so the Bill was dismist.

Note, That upon Tryal and an Argument after this Hearing in the Kings Bench, It was adjudged that Notice was not necessary to be given.

The Presidents cited in this Case were Sir Henry Bellasis, fol. 22. Fleming and Walgrave, fol. 58. Wallis and Crimes, fol. 89. Escot and Escot. 7 Februar. 1653. Coke and Tookey, 24 May, 15 Car. 1. Peyton and Ship­dam, Novemb. 1657. The two last Cases were, Whether Relief were given for the breach of a Condition on Non­payment at the day, on a voluntary Devise, there being no Damage but what might be made up by payment after with Damages?

The Lord Keeper.
Davy against Davy. December 11.

THE Plaintiff was eldest Son by a second Venter, and the Defendant was eldest Son and Heir by the first Venter; and the Bill was to be relieved for a Rent-Charge of 200 l. per annum of which there was half a year due.

The Bill did suggest, that the Defendant kept not any Stock upon the Ground, but converted it all to Tillage, so that the Plaintiff had not a sufficient distress, and so was without Remedy save in Equity, and prayed a Decrée against the Defendant for the Arrears and growing Pay­ments.

The Defendant demurred for that the Lands only being charged with the Rent at Law, there was no Equity to charge the Defendants person.

But this Demurrer was over-ruled, it being laid in the Bill that there was a legal defect in the assurance, which ought to be made good in Equity, the Grant being on a good consideration.

The Defendant answered, and denyed the converting the Premisses always to Tillage, or that the same were not overt to a distress; but said there had béen divers times a Stock worth 250 l. upon them.

A Rent which chargeth only the Land, not to be decreed in Equity against the person.After Proofs published in the Couse it was heard before the Lord Keeper, 20 Novemb. 1667. And the only Equity there insisted on for the Complainant was, that the De­fendant imployed all the Lands to Tillage, so that the Plaintiff could not distrain, there being no Cattle kept on the Premisses. But the Defendant did insist, that he did keep a Stock of Cattle thereon sometimes worth 250 l. at a time, and that the Plaintiff endeavoured to charge the Defendants person with the Rent, which was not lya­ble at the Law. But the Plaintiffs Counsel replyed, that though possibly he might have remedy at Law, yet it was usual to settle matters of this nature in Chancery.

Whereupon and upon reading the Proofs in the Cause, the Court declared, they would be attended with Presidents, where Cases of this nature had béen relieved, and then would give their Opinion. 8 Novemb. 1668. The Court ordered the Cause to be set down again on the Presidents, which the Plaintiff were to deliver to the Defendant.Bowman or Boreman against Yate. One President was this, Seymore Boreman and Francis Yeat Plaintiffs against John Yeat Esquire Defendant. The Bill was grounded upon an Agréement made upon the Marriage of John Yeat the Father of the Plaintiff Fran­cis with Frances his Mother, and a Tripartite Déed 15 Car. 1. in pursuance thereof,20 Jan. 1660. whereby John the Father became seized in Tayl, and after the death of Thomas his Father, covenants to levy a Fine to the intent Eliza­beth (Mother of Francis, his second Wife after the death of Thomas and himself) and her Assigns should have du­ring her Life out of the Premisses 150 l. per annum, if John should have Heirs Male of his Body that should so long live; and to the Heirs Males of the Body of John by the said Elizabeth another 150 l. per annum, during the life of the said Elizabeth; and that the Heirs males of the body of John and Elizabeth have 300 l. per annum out of the Premisses, with a Clause of distress; and a Covenant to make further Assurance. A Fine was levied accordingly August 1663. John the Father dyed in the life of Thomas his Father. Elizabeth sold her Right to the 150 l. limited to her self after the death of Tho­mas to the Plaintiff Boreman, and in October before the Bill Thomas dyed, whereby the Plaintiffs became inti­tuled to the several Rents, the Lands descending to the Defendant as Heir to his Grandfather being eldest Son of John by a former Venter, and he had all the Déeds, [Page 146]and refused to pay the Rents, pretending the Lands were not sufficient,Confusion of Bounds of Lands out of which a Rent-Charge is­sues, proper mat­ter for Relief in Equity. and the Limitation in Law defective; and the Lands lying intermixt with others, and Boun­daries confused, the Plaintiffs could not distrain, and so prayed Relief here. And charged also that the Defen­dants Father agreed that if the Lands were too small in value, or defective in Title, he would make both good. To have that done, and to discover the Buttals and Boundaries, and to have the Rents arrear and growing Rents paid, was the scope of the Bill.

The Defendant by answer insisted, That the Plaintiffs proper Remedy was at Law, and that Boreman had not a good Title, because he had not any Attornment, for ought appeared, or any good Conveyance from Elizabeth, and justified the detainer of the Deéds.

On the first Hearing 25 Jan. 12 Car. 2. Ordered a Com­mission to go to set out the Lands, and Boreman's Title to be determined on the return of the Commission. The Commissioners certified that they had set out the Lands, the present Rents whereof were but 70 l. per annum, and that the Lands charged were 300 l. per annum; and then the Cause came again to be heard before the Lord Chan­cellor and the two Chief Iustices, 12 Jan. 1660. And as to Boreman's Title as Assignée to Elizabeth by which he claimed the arrears from Thomas Yeat's death, during Eli­zabeths life, The matter stood upon was, that he did not prove he had paid any Purchase Mony.

A Limitation to Heirs Males taken in Equity as a Limitation to the first Son.The Court conceived that was not material, he claiming under Elizabeth, who was intituled by the Marriage Agrée­ment, and so capable of Relief.

And the next Point was as to the other Plaintiffs to 150 l. per Annum during Elizabeths life, and 300 l. after to him and the Heirs males of his Body. Whereupon the Court declared,A defective Li­mitation in point of Law supplyed in Equity. that though the Limitation of these Rents were defective in Law, so as the Plaintiff could have no Remedy at Law, yet by the true meaning of the Mar­riage Agréement, the Plaintiff Francis is well described to take the Rent, and both the Plaintiffs well intituled, and ought to have Relief so far forth as the Lands and Rents reserved on the Leases, and the Lands as they shall come out of the Lease, shall be of value to make good the same; and that Boreman ought to be first paid, and decreéd the same accordingly, and the Defendant to account for the mesne Profits, &c. And for the future [Page 147]the Rents reserved and Lands out of which the Rents and Profits are issuing at the highest yearly Value, not exceéding 300 l. per annum, after the Leases expire, should be lyable to the payment of those Rents to the Plaintiff Boreman during Elizabeths life, and after 300 l. per an­num to the Plaintiff Francis, according to the true meaning of the Deed.

The difference betwixt the two Cases was,

First, In the principal Case the Rent was well limited to the Plaintiff in point of Law by the name of the first Son of the second Venter, and he may distrain, and having Seisin, may bring an Assize. But in Boreman's Case nei­himself had any Remedy at Law for want of Attounrment, and by reason of intermixture with other Lands, nor had the other Plaintiff, by reason he was not Heir male to his Father; but that Defendant was by a former Venter, so the Limitation not good in Law. And observe in Bore­man's Case the Lands only are made lyable, not the person.

Another President delivered by the Plaintiff to the De­fendant, was 22 June, 1644. Elizabeth Ferris against New­by, where an Annuity being devised by Will, and by the same Will the same Lands devised to an half Brother of the Devisée of the Annuity, this being a Rent Seck without Seizen and no power of distress, and the Devisée of the Lands having promised to pay it; The Court did decrée the Deviseé of the Lands to give Seisin of the Rent to the Devisee of the Annuity,Seisin decreed of a Rent Seck. which Case, as was con­ceived, was against the Plaintiff in the principal Case, it being in his power to have Seisin when he would. And the Court in this Case did not decrée the Lands to be liable.

And now upon the further hearing of the principal Case, the Plaintiffs Counsel did not think fit to insist upon, or so much as to mention their Presidents, but stood only upon the defect of a distress, and that the arrears of the 200 l. per annum, were now 100 l. and the Land but 200 l. per annum.

The Lord Keeper declared on the Debate of the princi­pal Case, that unless there did appear a fraud to hinder the Plaintiff of his distress, he could not have Relief here. And that all he could do, was to refer it to a Tryal at Law,Fraud to hinder a Distress, where tried. whether there was any Fraud to hinder the Plaintiff of his distress; and accordingly at the Plaintiffs desire did re­fer it to a Tryal.

The Lord Keeper.
Trevor against Perryor. December 14.
On a Demurrer.

THE Plaintiff was an Executor to an Obligee, and the Bill was to have an Equity of Redemption, which descended to the Heir of the Obligor by his death, made Assets in Equity.

To this Bill it was demurred in Bennet and Boxes Case; and on debate the Lord Kéeper inclined to think it all one with that Case.

Whether an E­quity of Re­demption in the Heir of the Mortgagor be Assets in Equity.But for the Plaintiff it was insisted, that that Case was an hard Case to be established in a Court of Equity; and that this is a stronger Case, for here the Lands were once in the Obligor, and never absolutely put out of him, but conditionally by way of Pledge for Mony. And the Equity of Redemption he had was as considerable as the Redemption, which was Assets at Law. So the Lord Keéper ordered to answer: But saved the benefit of the Demurrer to the hearing of the Cause.

The Lord Keeper. Justice Wyld.
Huttoft Grove against Banson and his Wife and Thomas Grove. December 14.

HUttoft, the Plaintiffs Grandfather, possessed of a great personal Estate, gave the Plaintiff 5000 l. and 500 l. to his Sister, Bansons Wife, and made the De­fendant Thomas Grove his Executor, who had purchased the Manor of Beeren-Hall with part of the Testators Mony, and mortgaged it to Perryor, and forfeited it. Vpon the Marriage of his Daughter to Banson he agrées her Por­tion to be for Legacy, Interest, and what more he would [Page 149]give her 1000 l. and enters into a Statute to Banson for the same, and then he grants the Equity of Redemption, and the Reversion (for the Mortgage was but for a long term of years) to Banson as a farther Security. The Bill was to be admitted to redeém the Mortgage, and to have the Legatees lose in proportion. And tho Banson had a Sta­tute and Mortgage prout, Legatees to abate in proportion where there is not enough to pay all. whereby it was said his 1000 l. continued no longer a Legacy, but was as much a Debt to him, as if he had lent the Mony, and he took it as so much Portion, or else he would not have married: Yet the Lord Kéeper declared, That in as much as the Legacy was not paid, but only secured, he conceived it equitable for each Legateé to lose in proportion, there not being enough of Thomas Groves Estate to pay all, and would not admit Banson to redeem, but the Plaintiff,An Executor not bound to pay a Legacy without Securi­ty to refund, in case of defect of Assets. Vide the Case of Pick and Vint­ner more largely in Grove and Benson. for that his was the greater Debt; and so ordered that he should redeem, and Banson should lose of his Wifes Portion in proportion with the Plaintiff. And in this case the Case of Pike and Vintner in 1639. by advice of Civilians, was cited, where it was resolved, That an Executor was not bound to pay a Legacy, but on Security to refund, in case there should be a defect of Assets, to pay Debts and Legacies. But that, as was said, was not applicable to the princi­pal Case, for the Testator had left ample Assets, but Tho­mas Grove had wasted them, and was insolvent.

The Lord Keeper.
Higgon and others against Syddal Calamy and others. December 15.
On a Plea.

THE Case was this. Syddal granted a Rent-charge of 300 l. per annum for 2000 l. to the Plaintiff, and after mortgaged the Premises for 1200 l. to Calamy. Then those that have Calamys Interest, he being dead, buy in a Iudgment precedent to the Grant of the Rent-charge. The Plaintiff exhibits his Bill to discover what Estates the Defendant claims, and chargeth that Calamy had no­tice of the Plaintiffs Rent before his Mortgage.

A Mortgagee without notice of a precedent Incumbrance buys in an In­cumbrance pre­cedent to that, he shall not be im­peached in Equi­ty, but on pay­ment of all which is due to him on both Estates.The Defendants plead the Mortgage to Calamy, and that afterwards hearing of precedent Incumbrances, they bought in a legal Title precedent to the Plaintiffs, and offer, that if the Plaintiff will pay all due on the Mort­gage, and on their new acquired Title, to assign all to him. But if he will not, they stand upon it they ought not to discover what that Estate is they have bought in, nor ought their Title to be drawn under examination in Equity. And by way of answer denied that to their knowledge or belief Mr. Calamy had any notice of the Rent-charge when he lent the 1200 l. And on debate the Plea was allowed as good.

The Lord Keeper. Justice Wyld.
William Style by Original Bill against William Martin and Elizabeth his Wife, Relict and Ad­ministratrix of Richard Bosvile Esquire, and Ro­bert Bosvile, Son and Heir of the said Richard, by Guardian. December 16.

THE Bill was an Original Bill to set aside a Decreé in 1664. obtained by the Defendant on a Bill of Reviver (to which the now Plaintiff is no Party) against John Style, Heir of Sir Humphrey Style, and others, as obtained by Fraud. The Case was thus;

Sir Humphry Styles's Lady (Mother of the said Richard Bosvile) had by his request mortgaged a Mannor of hers for 3000 l. borrowed by Sir Humphry 8 Nov. 8 Car. 1. And Sir Humphry had agreed with his Lady, That if he did not pay off that 3000 l. that then his Lands in Kent should stand obliged to pay 1500 l. of the 3000 l. for the ease and benefit of the said Lady and her Heirs. And 15 Novemb. 8 Car. 1. he conveyed his Kentish Lands to Trusteés, which the Defendants say was for that purpose, but no such express Trust. Trin. 1641. The Lady Bos­vile being dead, Richard Bosvile her Son and Heir exhibited his Bill against Sir Humphry and the Trustees in the Ken­tish Lands to have the benefit of this Agreement. And in [Page 151] Trin. 1642. two Witnesses were examined to the proof of the Agreement against Sir Humphry Style, and that the conveyance of the Kentish Lands was on that Trust. The Wars coming on there was a rest, and no farther Proceédings till 1663. In 1665. Richard Bosvile, who was a Recusant, died, his Heir then, and yet an Infant. Michaelmas 1663. Martin & Ux' and the other Defen­dant, the Infant, brought a Bill of Reviver against John Style, the Heir of Sir Humphry, and the Heir of the surviving Trusteé. And in 1664. after the Answer of John Style, who by Answer said he was willing the Plaintiffs in the Bill of Reviver may have their Mony, if he may have the rest of the Lands, and Replication and farther proof taken and published, it was decreed, That the Plain­tiffs in the Bill of Reviver should hold the Lands against John Style and his Heirs, and all claiming under Sir Humphry Style since the first Bill, until the 1500 l. with Costs and Interest were paid off, of which Bill of Reviver the now Plaintiff had due notice given him, and he might, if he had pleased, come in by a Cross Bill, &c. before the Decree. The now Plaintiff made Title by an Intail of Sir Humphry Style on him in 1638. precedent to the Origi­nal Bill, so that Title was not bound by the Decreé. But that Settlement being in truth revoked in 1643. he made another Title by the Will of Sir Humphry Style in 1658. And for the now Plaintiff it was insisted, that there was a Collusion in getting the Decree, the Defen­dant John Style admitting it by Answer to it on the matter, and the now Plaintiff, who was Ter-tenant, no Party to it: And the Report of the Master who had computed the 1500 l. and Interest to amount to 3600 l. was confirmed without any defence by John Style. And the Rule for bind­ing Titles pendente lite (which is the Rule of the Pra­ctice this day) was the Lord Bacons Rule, and that Rule is, That lis pendens binds, if it be in full Prosecution; but here was above twenty years cessation, and the Plaintiff had in that time bought in Incumbrances, and improved the Lands, and the notice given the Plaintiff of the Bill of Reviver was too late, Issue being joined so that he could not come in. And its said, where Iudgment is ob­tained against the Land, and the Ter-tenant is no Party, a Writ of Deceit lies for the Ter-tenant, and so in a parity of reason this Bill was maintainable for the now Complainant. Spencers Case 5th Report was cited. And [Page 152]it was farther said for the Plaintiff, That there was no such Agreement between Sir Humphry Style and his Lady as the Decree was grounded upon.

For the Defendant it was said, That the Plaintiff was stopt to say there was such Agreement by Decree.

A Stranger be­ing bound by a Decree gotten by Fraud, may fal­sifie it. Lord Keeper. A Stranger may falsifie at the Com­mon Law, and if the Decree be by Fraud, the Plaintiff may then be admitted to falsifie the Agreement. But it is not form, but the substance of a Decree, that all be bound that come in pendente lite.

All that come in pendente lite are bound by a De­cree.But the Defendants Councel insisted, that there was no Fraud; for the main Witnesses which were to the Agreement, were examined in Sir Humphry Styles life­time. Those which were examined after, were to prove the payment of the 3000 l. the Mortgage Mony, which was paid afterwards; and notice was given to the now Plaintiff before any examination of the Bill of Reviver, and could go no otherwise, unless they would have be­trayed the Infant; for if he had gone by Original Bill, they must have lost the Witnesses examined on the first Bill.

Notice given a Stranger of a Bill of Reviver necessary; its improper to make him a Party, not being in privity. Lord Keeper. The War and Infancy excuses the Laches; and the Witnesses to the main were examined in Sir Humphrys life, and so the pretence of the Plaintiffs improvement, and taking off Incumbrances nothing of that in the Bill, but in the Replication; and so dismist the Bill.

Sherman against Withers. December 11.
On a Plea.

Exception in the Statute of Limitation as to Merchants Ac­counts extends not to Inland Merchants.THE Plaintiff was an Inland-Merchant, and the Defendant his Factor. And the Bill was for an Account of fourteen years standing.

To all, but what was within six years before the Bill, the Defendant pleaded the Statute for limitation of Per­sonal Actions, 21 Jac. 16. c. And upon debate of the Plea the Lord Keeper conceived the Exception in the Sta­tute as to the Merchants Accounts, did not extend to this Case, but only to Merchants trading beyond Sea.

The Lord Keeper.
Sir Jeffery Palmer the Kings Attorny General on the behalf of Woolrich a Lunatick against Woolrich. Mich. 1669.

A Bill brought by the Attorny General in the nature of an Information for the benefit of a Lunatick, as in the Case of Jerome Smith, f. 112.

Where a Luna­tick must be Par­ty to a Suit for his own benefit. Aliter in case of an Ideot.The Defendant demurred, for that the Lunatick was no Party, which was ruled a good Demurrer: The Lord Keeper declaring it was as needfull to make the Lunatick a Party as an Infant, where a Suit was on his behalf: But in the case of an Ideot it must be otherwise, but a Lunatick may recover his Understanding, and then he is to have his Estate in his own disposing.

But observe the difference between this Case and that of Smiths.

Smiths Case was to be relieved against an Act done by the Lunatick in assigning a Debt, because he was a Lunatick at that time; so that if he had been a Party, it had been to stul­tifie himself, which the Law does not admit. Vide Bever­leys Case 4 Report, and quaere how it can be done by In­formation on his behalf.

But in Beverleys Case the King hath the custody of his Person, of his Lands and his Goods so as to provide for the Ideot to prevent an Alienation; and therefore by Scire facias may avoid a Feoffment and other disposition made by the Ideot. But the Book says, That that is not a breach of the Rule, that a Man cannot be admitted to stultifie himself, because the Ideot is not Party to the Re­cord in a Scire facias. And in that Case it is the same thing, and the Writ the same as to the Alienation of non compos mentis, or a Lunatick, or of an Ideot, and the King shall protect those that cannot protect themselves. And the Alienation of a non compos mentis, as well as of an Ideot, being found by Office, shall be avoided,Where a Luna­tick shall be Par­ty to an Infor­mation on his behalf, and where not. tamen quaere. And upon that ground I suppose it was those Bills were grounded; for it was declared by the Court, that those Bills were proper to be brought by the Attorny. And in Woolrich's Case the Bill was to be relieved upon a [Page 154]Marriage Agreement, for the benefit of the Lunatick, be­fore he was a Lunatick so that he being a Party to that Bill did not tend to stultifie himself, and may be the reason why he should be a Party to it. And the other Bill tend­ing to stultifie himself may be a reason why he should not be a Party to it.

The Master of the Rolls in the absence of the Lord Keeper.
Cadwallader Jones Esquire against John Lenthal and his Lady. Mich. 1669.

THE Bill was to be relieved for a Debt owing by Bond from Sir James Stonehouse, to whom the Defendant the Lady was his Executrix, which Debt and Bond the Plaintiff in his Answer to a former Bill had sworn, was fully satisfied to him, but that was to avoid a Sequestration of the Debt,Relief for a Debt, which the Plaintiff had sworn was sa­tisfied before Answer. as was alledged. And the Master of the Rolls, tho that Answer was set forth in the Defendants Answer in this Cause, would not suffer the Answer to be read against the Plaintiff, and so decreèd the Defendants to satisfie the Debt.

The Lord Keeper. Justice Moreton.
Seymour against Nosworthy. January 19.
On a Demurrer.

THE Cause had been formerly heard in the Ex­chequer, where two several Trials had been di­rected, Will or no Will, and in both a Verdict for the Plaintiff. Yet the Chief Baron had dis­missed the Bill there, but without prejudice in Law or Equity. And now by an Original Bill the Plaintiff hath sought relief here, for those Matters he sought relief in the Exchequer, and to examine Witnesses in order thereunto, in perpertuam rei memoriam.

The Defendants pleaded the examination and dismission in the Exchequer, and that there ought not to be a new examination, the matter having been there full in Issue.

On the first hearing of this Demurrer the Court gave time to search for Presidents, where after a Cause heard upon the Merits, and dismist in the Exchequer, a new Bill had beén admitted here:Dismission of a Cause without prejudice in Law or Equity how to be under­stood. And none being to be found, now upon farther hearing of the Demurrer, it was for the Plaintiff insisted, that this was a special dismission, it being without prejudice either in Law or Equity, which words must be considered to signifie something; but they did not signifie any thing, unless it were meant the Dis­mission should not hinder the Plaintiff from seeking his re­lief in any other Court of Law or Equity. And so the Court did conceive,Matters former­ly examined to in the Exche­quer, may be new examined in Chancery. and ordered that the Plaintiff might er­amine any Witnesses that were not examined in the Ex­chequer, and that as to the Matters examined unto there, the Plaintiff might examine the same Witnesses de bene esse, and how far those de bene esse should be used, the Court would farther consider.

The Master of the Rolls.
Bridget Dennis by Sir Alexander Frazer her Com­mittee against Sir Thomas Badd, Frances Den­nis his Daughter and others. January 31.

THE Case of Sir Thomas Badd was, That he was Guar­dian to Edward Dennis (whose Sister and Heir the Plaintiff is) and at fifteen years of Age married him to the Defendant Frances his Daughter. Sir Robert Dil­lington had a Mortgage of 200 l. of part of the Infants Estate, which Mortgage Sir Thomas Badd paid off, and took the same assigned to other Persons. The Infant after at seventeen years of Age made his Will, and the Defendant Frances his Wife Executrix. The Bill was, That tho Sir Thomas Badd had paid off the Mortgage with the Infants own Mony, yet he now pretends it was not for the benefit of the Infant, but that he paid it with his own Mony, and for what Mony he had of the Infants he was accountable to his own Daughter the Executrix, and so would leave the whole Mortgage-Mony still on the Mort­gage-Lands, which belong to the Plaintiff as Sister and Heir to the Infant.

The Defendant Sir Thomas Badd by answer said, That the Mony he had paid Sir Robert Dillington was his own Mony, and that he had not near enough of the Infants to pay the same, and that if he had had enough of the In­fants Mony, yet he could not justifie the disposing of it.

An Infants E­state in his Gar­dians Hands ought to be ap­plied to pay his Debts.It was proved, that when Sir Thomas Badd paid off the Mortgage, he called in about 100 l. of the Infants Mony, and that that was applied that way.

And in this Case the Master of the Rolls declared, That Sir Thomas Badd ought to imploy what he had of the Estate of the Infant, as far as it would go, to pay his Debts, and did Decree a Redemption of the Mortgage, and that Sir Thomas Badd should account; and that what he had of the Infants in his Hands, when the Mortgage was paid off, should be applied in discount of Mortgage-Mony, and upon payment of what more was due the Plaintiff to re­deem.

The Lord Keeper.
Sir Jeffery Palmer the Kings Attorny General on the behalf of the King and Trinity-Colledge in Cambridge, against George Newman Esquire. Febr. 10.

THE Information suggests, that S. Newman was seised in Fee of the Lands in question, and possest of Books and Goods and out of a pious intent to provide for Maintenance of Poor Scholars in that Colledge, by his Will in Writing devised to the Master and Fellows of that Colledge, the Lands in the Information mentioned, and all his Monies, Goods, &c. and appointed the Pre­mises to be imployed for buying Lands for maintenance of Scholars in the said Colledge, &c. with this Clause, That if any by Cavillation concerning the Law of Maintenance should go about to hinder this Bequest, or if any of his Bequest, might not be suffered to go to the Colledge, then the Defendant should enjoy all his Lands, Goods, &c. That by the Will the Premises are to be established with the Colledge, but the Defendant combines with others unknown, either Lords of whom the Lands are holden, or Heirs at Law, and pretends that by the Statute of Mort­main [Page 158]the Devise is ineffectual, and so raiseth Cavils to defeat the Charity, and so has got the possession of the Lands and Goods, and refuseth to let the Master and Fel­lows have them, that if by the Statute of Mortmain the said Charity be avoidable, yet by other Laws for establish­ing of Charitable Vses, and according to Equity, the Charitable Vse ought to be made good. Wherefore, and inasmuch as the preservation of Charitable Vses is of pub­lick Interest and Concern unto his Majesty and the Col­ledge, and in respect of the Statute of Mortmain and Ca­villation aforesaid they have no remedy by reason of the later Clause of the Will to be relieved in the Premises, they exhibited this Bill.

The Defendant answered and confessed the Will, &c.

And upon the hearing it was declared by the Court, That the King as Pater Patriae may inform for any Publick Benefit for Charitable Vses before the Statute of 30 Eliz. for Charitable Vses.The King as Pater Patriae may inform for any publick be­nefit. But it was doubted the Court could not by Bill take notice of that Statute, so as to grant a relief according to that Statute upon a Bill, but that the Course prescribed by that Statute by Commission of Charitable Vses must be observed in Cases relieve­able by that Statute.Stat. of charita­ble Uses. But no positive Opinion was de­livered, for the Defendant consented to a Decree, and so what was done was by his Agreement, and not the Iudg­ment of the Court.

Wilmer and his Wife against William Kendrick and Jo. Vylet. May 17.
On a Demurrer.

Touching a de­fective executi­on of a Power. WIlliam Kendrick seised in fee of the Lands in question worth 90 l. per annum, and of other Lands, in all worth 100 l per annum by Indenture, 23 April, 17 Car 1. conveys the Lands in question to the use of Thomas his eldest Son, for life, the Remainder to Trustees for ninety nine years for the benefit of Martha, the Wife of Thomas, for a Ioin­ture, the Remainder of those and all other the Lands (of which by that Settlement Thomas was Tenant for life) after Williams death, to the first Son of Thomas in Tail, Thomas has Issue Martha the Plaintiffs Wife, and another Daughter, and the Defendant Kendrick his only Son. And by the Settlement there was a Power given to Tho­mas at that time during his life by any Writing to convey or appoint all or any of the Lands in question, being but 90 l. per annum to any future Wife that Thomas should marry, for a Iointure, or to any Child or younger Children of Thomas, so as that Conveyance or Appointment be [Page 160]made to commence after the death of Martha, (Thomas his Wife) for life or lives only of such Child or Children, and for their Preferment: Thomas having no other way to provide for his Daughters younger Children, 5 May 1657. for love, &c. to them, and for provision of Por­tions for them, grants, bargains and sells the Lands in question to the Defendant Vyler, Habendum to him and his Assigns for the Lives of the Plaintiff Martha and her Sister, and for their only use and benefit, to remain from the death of Thomas Kendrick and Martha his Wife.

The Plaintiffs by their Bill suggest, that the Plain­tiff Martha had no provision but this, and that her Fa­ther did look upon it that he had well pursued his power in the Decree to Vylet, or else that he would have taken the Wood of the other Lands of greater value, which he knew were by the Settlement supra, to come to the De­fendant, and complained that the Defendant taking ad­vantage that the Power was not literally pursued, did stand upon it, whereas it was in substance pursued, and the Estate granted to Vylet was less than by the Power, Thomas had power to grant; for by the Power he was to grant to commence on the death of Martha his Wife only, and he made it to commence on the death of Himself and Martha, which was less than he had power to do; and the mistake did happen by reason that in the Settlement the Lands were limited to Thomas for life, the Remainder in Trust for a Iointure for Martha.

A defective exe­cution of a power raised by a voluntary Conveyance, without help in Equity.And it was charged by the Bill, that in Equity the mistake and defect ought to be helpt, the younger Chrildren being otherwise utterly unprovided for, and so to be re­lieved was the intent of the Bill.

To which the Defendant Kendrick demurred, for that the Deed of Settlement, and Deed to Vylet was void in Law, and being defective in the execution of the Power, it ought not to be supplied in Equity. In the arguing of which Demurrer it was insisted, that both the Conveyances being voluntary, the case was the same here as at Law, and no reason to help here against Law at all. And it was said, That if such defects should be supplied in Equity, it would be in vain to imploy Men of skill in drawing Conveyances and Settlements, but every un­skilful Man might do it as well. But if it had been a consideration of Mony it was admitted it might be other­wise. [Page 161]And it was farther insisted, That it did not seem to be a mistake in the Case, but done designedly; for if the Estate had been to commence upon the death of Martha, Thomas his Wife, then Thomas himself had lost his own Estate for life after Martha.

Vide the Case of Parvey and Bowen, f. 22.The Court was all of Opinion, that the Law being against the Plaintiff (as it was admitted it was) Equity could not help the Plaintiff. Yet they did me­diate with the Defendant to pay the Plaintiff Martha 20 l. for her life.

And the Cause having been formerly argued on the Demurrer, and a day given to the Plaintiff to produce Presidents where in like case the Court had relieved; The Plaintiff produced a President 6 July, 40 Eliz. Prince and his Wife Plaintiff against Green Defendant,Prince and his Wife against Green. where in effect the Case was thus; The Father seised in Fee of a great Estate, by Covenant to stand seised,A power to Lease raised by a Covenant to stand seised, is not good. settles the same to himself for life, the Remainder to his eldest Son, with power to himself to lease a small part for forty years, who accordingly made a Lease for the benefit of a younger Child, which came by assignment to the Plain­tiff, which the Defendant, the eldest Son would avoid at Law, the power not being well raised by the Covenant to stand seised. But it appearing to the Court the eldest Son was greatly advanced by the Father, and that the Conveyance, which was by Covenant, was intended to be by Livery, which he was advised would be as well by Covenant, The Court did decree the Plaintiff should hold until the Defendant evicted him by Law, and did de­creé the Defendant to admit the power to make the Lease good in Law,A defective Power made good in Equity. if it did not prove an Intail paramount the Settlement, as he pretended.

The Lord Keeper. Chief Baron Hale. Justice Rainsford.
Elizabeth March, Richard Chaworth and Henry Malory Executors of Jane Duppa, against John Lee Senior and John Lee Junior. May 30.

THE Cause coming to be heard, and argued on a Plea before the Lord Keeper,Mortgage. he directed a Case to be stated, and then would farther consider of it. And now the Case being stated, it was thus:

Trin. 1669. The Plaintiffs by their Bill set forth, That the ninteéth of January 1662. Henry English by Indenture and Fine (wherein the Wife joined) conveyed to the Plaintiffs Sir Richard Chaworth and Henry Malory and their Heirs, the Mannor of Monfield in the County of Sussex, to the use of Mistris Duppa for five hundred years, as a Mortgage for the security of 4000 l. payable the fourth of March 1664. with Interest in the mean time. That on the fourth of March 1664. Mr. English mort­gaged to Mistris Duppa the Mannor of Wigsel in the County of Sussex for five hundred years for security of 3000 l. more, payable the fifth of June after, with In­terest, and covenanted in both Deéds that the Pre­mises were freé from Incumbrances. 6 August 1664. Mr. English acknowledged to Mistress Duppa a Recogni­zance in this Court of 2000 l. for payment of 1000 l. and Interest. The 7 of December after the 21 of October 1665. (the Mortgages and Recognizances being forfeit­ed) Mistress Duppa died before payment, having made her Will, and the Plaintiffs her Executors, who proved the same. Trinity-Term 1667. the Plaintiffs having brought several Ejectments, exhibited their Bill here against Mr. English and his Wife. That Mr. English might discover Incumbrances, and redeem by a day, or that his Equity of Redemption might be barred. Whereto Mr. English and his Lady after they had stood in a contempt to a Com­mission of Rebellion, put in their Answer, but did not [Page 163]discover any Incumbrances. Michealmas-Term 1667 Mr. English suffered Iudgment in Ejectment at the Plaintiffs Suit, with a Cesset executio till May after. 18 May 1668 the cesset executio being expired, Mr. English notwith­standing any Arguments the Plaintiffs Councel could make, obtained an Order of this Court for stay of the Plain­tiffs Proceedings at Law upon the Iudgment in Ejectment till hearing, and another Order. 5 June 1668, The Cause coming to be heard, the Court decreed that Mr. English should pay what was due to the Plaintiffs in a twelve-month, or in default the Plaintiffs should enjoy the Pre­mises discharged of all Equity of Redemption against him, and all claiming under him. 26 November 1668. The Master to whom it was referred to take the Account, reported 8530 l. 14 s. payable to the Plaintiffs the sixth of June 1669. 5 February 1668 the Report was decreed, and the Decree thereupon signed and inrolled.

The Bill farther chargeth, That the Defendants de­signing to elude the said Decree, and defeat the Plaintiffs of the Benefit thereof, and of their Iudgment in Eject­ment, pretended that Mr. English had mortgaged to them in June 1665, in Feé the Manor of Wigsel for the security of 2000 l. payable the twenty seventh of June 1666, which for non-payment was become forfeited. The De­fendants having had notice, and being acquainted with the Contents of the Plaintiffs Bill and Proceedings there­upon against Mr. English and their Securities and Titles to the Premises, about a Week before the same came to hearing, exhibited their Bill here against Mr. English and the Plaintiffs to discover the reality of their Securities, and what was due thereupon, and prayed relief therein upon the Title of their Mortgage. 20 Oct. the Plaintiff moved the Court again, which was between the times of the Decretal Order, and pending the Reference to the Master upon an Affidavit, that Mr. Burrel and several others had Incumbrances on the Premises precedent to the Plaintiffs, to discharge the Order of the eighteenth of May last, where­by their Proceedings at Law for the recovery of the posses­sion of the Premises had been stayed, and that they might be at liberty to proceed upon their Iudgment in Ejectment to recover the Possession, which the Court however thought not fit to grant, but continued the former Order. That the Lees by means thereof ceased the Prosecution of their Suit in this Court against the Plaintiffs, and while the [Page 164]Plaintiffs were tied up by the Order of this Court from getting possession, bought in a Mortgage made in 1649. by Mr. English to Mr. Burrel of part of Wigsel for 1000 l. and a Statute in 1656. acknowledged by Mr. English to Mr. Burrel of 800 l. for payment of 400 l. and have extended the Statute on both the Mannors at not above the third part of the value, and by virtue thereof in­tend to evict the Possession and to pay themselves as well the 2000 l. and Interest, as the 800 l. and 1000 l. and Interest, before the Plaintiffs shall have any fruit of their Decree, and that the Defendants ought, and that the Plaintiffs have offered them upon their payment to them the 8530 l. 14 s. and Interest, to assign their Secu­rities, or else that the Defendants would accept what is due upon the Statute and Mortgage to Burrel, and thereupon assign them to the Plaintiffs, and yet they re­fuse to do it.

And so to be relieved in the Premises is the Prayer of the Bill.

The Lord Keeper. The Master of the Rolls.
Hurst against Goddard. June 7.

Things in Acti­on assignable in Equity, and howTHE Case was thus. There was a Sum of Mony provided by a Settlement of Lands to be raised for Daughters Portions; one of the Daughters marries and dies; before her Por­tion paid her Husband takes Administration to her, and assigns all his Interest in that Portion to his Son by a former Wife. The Son by this Title (the Father being dead) sued in Equity for this Mony.

It was insisted for the Defendants, That though things in action might be assigned here on a consideration by the party that had the Interest, and were recoverable here by the Assignee; and that a Release afterwards by the As­signor, unless it were without Notice and on consideration to him to whom the Release was, would not hurt the As­signeé yet here the Assignment being by an Administrator, [Page 170]and not the person that had it in his own right, this had never beén good, for there might be a Creditor to satisfie the Intestate, &c.

The Lord Keeper did think there was a considerable dif­ference betwéen the assignment of the Party and of the Administrator, where the Administrator was a Stranger, or had not Right before, and no colour of Right but meerly by the Administration. But here in this Case the Administration was pro forma only, for here he had a Right to the Mony, as a Portion or Provision for his Wife, and every Man hath not ready mony to give Daughters, but their Portions are to be provided for by this means, and therefore its reasonable to advance or promote the establishing of them, so that they might be disposable by the Husband (who settles a Ioynture) as Mony it self may be. And so decréed for the Plaintiff.

The Lord Keeper. The Master of the Rolls.
Martin against Seamore. June 13.

Robert Seamore being seized of the Lands being Copy­hold, in Fée, surrenders them to the Plaintiff by way of Mortgage, for Mony lent, and in a few days after surrenders them to the use of his Will, and then by Will deviseth them to his Wife for life, Remainder to his Daughter in Fée, and dyeth. There was a failer to pre­sent the Plaintiffs Surrender at the next Court, but the Wife got her self admitted.

The Plaintiffs Bill was to be relieved for this Mort­gage mony, and set aside this Surrender and Will, be­ing voluntary, unless the Wife and Daughter would pay him.

For the Wife it appeared, there was an Agréement of the Husband, in consideration of the Marriage, to settle the Premises on her for Life, and insisted that the Will and Surrender to her was pursuant to that consideration and Agreément.

A Copyholder having for Mo­ny agreed to mortgage Lands stands trusted for the Mortgagees.For the Plaintiff it was insisted, that if a Copyholder for Mony had agreéd to sell or mortgage his Copyhold, that by such Agreément he stands trusted for the Vendée, and that no voluntary disposition afterwards could prejudice the Vendée, nor no disposition for Mony with notice of that Agréement: And that the Plaintiff having a Surren­der ought not to be in a worse Case than if he had only an Agréement.

A Surrender void for want of Presentment made good a­gainst a volun­tary disposition. Court. As to the Wife she being in pursuant to a precedent Agreement to the Plaintiffs Title, would not impeach her Estate. But as to the Daughter, hers being purely a voluntary Estate, It was ordered, that unless she would pay the Plaintiff his Mony he should hold and enjoy the Premisses against her.

The Lord Keeper. Justice • Twisden, , • Wyld, , and • Rainsford. 
Ross against Ross. July 14.

THE Case was this: Francis Ross had Issue James his lawful Son, and John a Bastard Son, and deviseth by his Will in writing to his Bastard Son his Tail Lands that were held in Capite, and suffers Copy­hold Lands to descend on James. James and John agreé,Tenant in Tail bound by his Agreement to convey. that John and his Heirs should enjoy the Copyholds, and James and his Heirs the devised Lands.

This Agreément being executed, James had a Decreé against John to levy a Fine, and settle it accordingly. John dies in contempt for not doing that (which if he had done the Estate Tayl had beén barred) The Defendant, the Issue of John, entred into the Copyholds, and enjoyed them: And to force him to execute the Agreement was the intent of the Bill.

The Issue in Tail is not bound by the Agreement. Maynard for the Defendant. Its not like the Case of Octavian Lumberd, for by that Agréement the Estate Tail was made good, which otherwise would have been avoided; but a personal Agreement, or Agreement for other Lands will not bind the Issue.

Issue in Tail ac­cepting the sa­tisfaction agreed to be given, the Tenant in Tail is bound by that means.Resolved by the whole Court,

• 1. That if the Tenant in Tail agreé to convey, he is bound by that Agréement.
• 2. If he die, his Issue is not bound by it.
• 3. That if the Issue do accept of that Agréement, and enters, as in this Case, on the Land, it now becomes his own Agréement, and shall bind. And so decréed it against the Defendant.

The Lord Keeper.
George Stowel Esquire against George Long Exe­cutor of George Long. June 14.

SIR John Stowel (whose Heir the Plaintiff is) was indebted to the Defendants Testator by Iudg­ment and Counterbond, the Defendants Testator having paid the Debts he was bound in as Surety for him. Sir John was sequestred, and his Estate exposed to Sale by the Parliament for his Loyalty to the late King. The Defendants Father bought a Farm of the Trusteés for Sale, part of Sir Johns Estate, and in the Purchase had allowance of his Debt by Iudgment and on the Counter­bond, and paid the rest of the Purchase Mony, as was usual, by Bills, &c. The Defendants Testators Purchase was in 1652. and he entred and held till 1660. the Kings Restauration. He being dead, the Plaintiff who claimed under Sir John Stowel, exhibited a Bill to call the De­fendant to an account, and suggested, that the Land was conveyed by the Trustées in satisfaction of the Iudgment, and that by the Profits taken the Iudgment was satisfied, and therefore the Plaintiff ought to hold the Lands against the Iudgment which was extended for the Defendant.

It was insisted, that for all the Profits the Defendants Testator took under the Sale, it was pardoned by the Act of Indempnity; And that the Defendants Testator, be­sides this Iudgment and this Bond, paid a great Sum of Mony for the Purchase. And yet it was offered to come to an account, if the Plaintiff on account would pay the Defendants the Debt due by Iudgment and on the Coun­terbond, and the Mony paid for the Purchase. And upon that offer the Court decréeed it to an Account. Though [Page 173]it was for the Plaintiff strongly opposed,A Creditor of a Delinquent ha­ving his Debt allowed him in the Purchase of the Delinquents Estate, shall not be put to ac­count for the profits under the Purchase in dis­charge of his Debt. that the Debt Sir John owed him by Counterbound (it not being with­in the Iudgment) should not be-brought into the account, or allowed the Defendant. But inasmuch as that Debt was allowed the Defendant as part of the Consideration in the Purchase of the Estate, the Lord Keéper did order that to be brought into the account and allowed the De­fendant, and declared, that if the Defendants Counsel had not offered to account, he would not have ordered an account, for that all Monies received by the Profits are pardoned by the Act of Oblivion.

Troner against Hassold. June 16.

Whether Arti­cles of Peace can discharge a Sub­jects Debt.THE very same Case with that of Wembergh and Tough before fol. 123. save that the Debt was by Bond, and entred into here. And upon a Demurrer the Lord Kéeper ordered the Defendant to answer; but saved the benefit of the Demurrer to the Hearing.

The Lord Keeper.
Dame Flora Backhouse against Simon Middleton and others. June 17.

SIR William Middleton seized of the Kings Moiety in the new River Water in Fée, consisting of 36 shares, 1646. conveyed the same to Henry Middleton and others, upon Trust for himself and his Wife, during their respecti [...]e Lives, and after that the Trustées out of the Rents and Profits of the Premisses should pay his Debts and Portions for his Daughters at certain days, and after to permit Sir Hugh Middleton Heir of Sir William and his Heirs, to take and receive the Rents and Profits of the Premisses. Sir William and his Lady dyes. Sir Hugh in June, 1657. contracted with William Bishop, former Husband of the Plaintiff, for Sale of fourteen shares to him of the Kings Moiety for 7000 l. whereof 250 l. in hand, and the rest to be paid as Sir Hugh and Bishop and the Trustees should agree, for the Daughters Portions, [Page 174]which are ascertained by Sir William at several great Sums. In December 1657. the Defendant Simon contracted with the same Sir Hugh by Articles under Hand and Seal, for all the Kings Moiety at 151000 l. and in January after Sir Hugh and his Wife and Henry Middleton (the only active Trustée) execute a Conveyance to Simon according to the Articles. In Hillary, 1657. Bishop exhibits his Bill against Sir Hugh to inforce an Execution of the A­gréement, which the Defendant answered. Hillary 1658. Simon Middleton brought his cross Bill against Bishop, Sir Hugh and the Trustées to have a Conveyance, &c. February 1659. Bishop exhibits Interrogatories in his Cause. November 1660. one Witness sworn thereon. 4 March 1660. Bishop dies, yet the Witness sworn not ex­amined, Bishop having devised the benefit of his Contract to the Plaintiff, being his Wife, and her Heirs. 24 Ja­nuary 1661. She brings a Bill of Revivor. 24 Nov. 1662. she marries Sir W. Backhouse, and so her Suit abates. 27 Nov. 1663. Simon Middleton's Cause heard and decréed for him. 1 Decemb. 1663. Sir William Backhouse by Petition gets Simon Middleton's Decrée stopt. 2 Decemb. 1663. He brings a Bill of Reviver in his own and his Wifes Name. 18 May, 1664. He exhibits a new Schedule of Interro­gatories,A Devisee can­not bring a Bill of Reviver, not being in Repre­sentation to the Devisor, but in nature of a Pur­chasor. and on those Interrogatories some Witnesses are examined. 11 June 1664. This Cause was heard, and the Plaintiffs claiming as Deviseés to the Plaintiff in the first Cause, and the Heir of Bishop, whom only it concerned to contest, the Deviseé being no Party; and a Deviseé not being intituled to a Bill of Reviver, this Bill was dismist without prejudice to a new Bill.

Then an original Bill setting forth the former Proceéd­ings and the former dismission was exhibited by Sir Wil­liam Backhouse and the Plaintiff his Wife, which also abated by Sir Williams death, and was revived by the Plaintiff, and answered by the Defendants. And then Issue being joyned, the Plaintiff moved to have the use of the Depositions taken upon the former Bill, which was dismist, made use of in this Cause, those Witnesses be­ing dead.

This Matter was several times strongly debated by Counsel on both sides, where for the Plaintiff it was in­sisted, That though a Bill be dismist, yet the Depositions taken on such Bill are to be made use of here or at Law, and that the Bill was not dismist on the point of Right, [Page 175]but for matter of form. And that its usual and frequent to use Depositions taken in one Cause, if for the same matter that is in controversie in another, especially if against the same Defendant, as here it is;When Depositi­ons in a Cause dismist shall be used or not. which was admitted by the Defendants Counsel. But as to the using of Depositions in a Cause dismist this difference was taken; that though where a Cause is dismist the matter of it not being proper for Equity to decrée, yet the Fact in this Cause proved may be used as Evidence in that Fact betwéen the same Parties when ever it shall come in question again. But when a Cause is dismist not upon that ground, but upon irregularity, as for that it comes by Reviver when it should come by original Bill, so that in truth there was never regularly any such Cause in the Court, and conse­quently no Proofs, these Proofs cannot be used; for Proofs cannot be exemplified without Bill and Answer; nor can they be read at Law without the Bill, on which they were taken, can be read. But this Bill of Reviver could not be read at Law, and therefore the Proofs taken up­on it cannot be used here. And so upon long debate, and after several formal Arguments it was ruled about Michaelmas Term 1669. in this very Cause by the Lord Kéeper.

And now upon the hearing of this Cause, the endeavour on the Plaintiffs part was to prove a Notice in the Defen­dant of Bishops Contract, which was opposed by the Defen­dant. But the Notice being proved,An Agreement for the Purchase with the Cestuy que trust of the Surplus not good unless the Trustees are Parties. it was for the Defen­dant insisted, that there was no ground to decree the Agrée­ment made by Bishop, it being made by a Cestuy que Trust of the Suplus only, and the Trustées no Parties, and the se­cond Agreement by the Defendant Simon Middleton is ex­amined before any Bill brought by Bishop against the Cestuy que Trust; and the principal Trusteé (who being examined as a Witness) swears that he did disapprove of the Agrée­ment with Bishop, and would never consent to it. And it was farther insisted for the Defendant Simon, that the A­greément with Bishop was not pursued, nor could Sir Hugh inforce the payment of the 6750 l. it being to be paid as the Trustees and he should agrée, so that that was nocom­pleat Agreement; and the Trustees disagreéing, and having executed the other to Simon the Defendant, the Agréement with Bishop ought not now to be decreéd, especially for the Plaintiff, who claimed the benefit of it by Devise only, which at the best was a Devise of an Equity on an Equity.

But for the Plaintiff it was insisted, that the Trusteés had not by the Trust power to sell, they being to pay the Daughters Portions out of the Rents and Profits.

A Trust to pay Portions out of Rents and Pro­fits at prefixt days gives the Trustees power to fell.To which it was replyed by the Court, that the Trusts were not to pay the Portions out of the annual Rents and Profits, but out of the Rents and Profits, and those Por­tions were to be paid at prefixt days, which the annual Pro­fits would not do; and therefore conceived the Trustées might sell for that purpose within the intention of the Trust; and so declared he was of Opinion to dismiss the Bill, but withal said he would think further of it. Vide the end of this Cause in Cornbury against Middleton.

The Lord Keeper.
Pitt and others against Pelham and his Wife, and Mabel Shirly. July 4.

WIlliam Shirly seized of the Lands in question, settled them on Jane his Wife for a Ioynture, Remainder to the Heirs of their two Bodies, Remainder to his own right Heirs. Afterwards in 1657. he made his Will in Writing in these Words, I make my dear Wife my sole Executrix: My Land at Blandford, which is my Wifes Joyn­ture (which is the Land in question) I confirm unto her; and after her death I appoint it to be sold, and the Mony that is made of it, to be divided in equal portions amongst these four, namely, one part of it to be disposed of by my Wife, and one to William Major, one to Ezra Shirly (who was Heir at Law) and one to Jonadab Savidge, and in case any of my three above named Nephews shall dye before the death of my Wife, my cosin Roger Higham shall have the portion of Mony, which upon selling my Land at Blandford should have fallen to that Nephew, and dies, leaving Ezra his Heir. Ezra Shirly dies before Jane, leaving the Defendants the Women his Sisters and Co-heirs. Jane the Executrix, Major, Savage and Higham in 1663. exhibit their Bill against Mary and Mabel the Defendants, who prove the Will, and compel them to sell. They ans­wer, and in 1664. Witnesses are examined. Pending this Suit the now Plaintiff being only Tenant to part of the Lands from year to year, purchases of Major, Sa­vage, [Page 177]Higham and Jane, their Interest given them by the Will. Jane dies in 1666. and makes Higham and Harris her Executors; the now Plaintiffs Pitt, Major, Savage, Higham and Harris exhibit their Bill to compel the Co­heirs to convey the Lands to Pitt and his Heirs.

The Cause was first heard before the Master of the Rolls, and it was then ordered a Case should be drawn up and heard before the Lord Kéeper.

And on Hearing before the Lord Kéeper 7 Novemb. 1668. because the Cause appeared to be of weight and conse­quence, his Lordship ordered Copies of the Case to be de­livered to Iustice Twisden and Iustice Wild, and will ad­vise with them and appoint a day to deliver his Opinion.

29 April 1669. the Cause was heard by his Lordship, as­sisted with those Iudges, at which time it was by Serjeant Maynard insisted for the Plaintiff, that the Will was good ill Law if the same was executed, but could not compel an Exe­cution at Law, and therefore Equity ought. And as to the pretence that there was no person named to sell, he said,When the inten­tion is clear, Iu­stice must sup­ply the means to attain it. that when the intention is clear, all means without which that cannot be attained must be supplyed by a Court of Iustice, Dyer 371.2 Leon. Rep. 222, & 278. a Case in point, and the Devisor hath power to dispose as he pleaseth: And though the Devise be not of an Estate,A Devise to an Heir on Condi­tion, void in Law, yet good in E­quity. but of an authority to sell, its good within the Statute. And if a Devise be to an Heir upon a Condition that he sell, this Condition is void; but yet it is good by way of Trust in Equity, for it lies within the power of an Ancestor to charge his Lands with a Trust, and the Heir must sell. And the Presidents of the Court do run, that the Heir is to sell, and cited Batersby and Prince in the Lord Coventrys time, and Tennant against Brown, 18 Feb. 1659.

Serjeant Fountain for the Plaintiffs. Originally this is a good Will, and the Land might have been sold; and if by any accident it be prevented, as by the death of the Executor, this Court ought to help it. And it is not de­nied, that if the Will had been to sell to pay Debts, it had béen good, and the Heir should have sold: And there is no difference between Debt and Legacies, and here the Mony is given for Legacies, but shall be raised by the Sale; and he relyed on it, that the Executor might have sold.

Mr. Solicitor Finch for the Defendants. There are two Questions:

• 1. What the Law is?
• 2. What the Equity?

The Law is against the Plaintiffs. If Land [Page 178]be appointed to be sold for payment of Debts,When Lands are appointed to be sold, and no person appoint­ed to sell, the Executor shall sell. and no person is appointed to sell, the Executor shall sell, because the Soul is concerned, which the Executor is to take care of. But it's otherwise in a voluntary disposition, as here; and it is not like the Case of Howel and Barns, 1 Cro. 328. for there the Executors were appointed to sell.

Serjeant Ellis for the Defendants. The Devise is a void Devise in the Creation, because no person is ap­pointed to sell; or if good in the Creation is void ex post facto, for no Bond of the Ancestor binds the Heirs, unless he be expresly named.

The Lord Keeper doubted whether the Will be void in the Creation; for it's against a Rule in Law, to make it void, if by any construction it can be made good.

Twisden doubted that the Executor of the Executor can­not be compelled to sell in this Case, the Sale not being to be made till after the death of the Executor.

Wyld conceived the Devise good in the Creation, the intent appearing; and the Case in Leonard is the very Case, and was of Opinion, that the Executor of the Exe­cutor shall sell; but doubted whether the Heir be compelled to sell.

Presidents on both sides were given in to the Lord Keeper and the Iudges. And 18 May, 1669. the Lord Keeper after advice with the Iudges in order to the de­termination of the Cause, ordered a Tryal of these Points in a feigned Action.

• 1. Whether Jane the Executrix had Power, and could by the Will have sold the Lands?
• 2. Whether a Sale by her Executors (admitting such Sale to be actually made) be a good Sale?

And after Tryal either Party to resort of the Court for a final determination.

Vpon the Tryal by consent of Counsel a special Ver­dict was found, and upon several solemn Arguments there­on by Counsel on both sides at the Common Pleas, the Court gave Iudgment unanimously on both Points for the Defendants. Thereupon the Defendants move to dismiss the Bill. And it is ordered that the Cause be set down for Hearing before the Lord Keeper upon the Equity reserved.

And now upon Hearing thereof before his Lordship, it was for the Plaintiff insisted, that it was plain by the Will that the Lands should be sold, and no person by Law can [Page 179]sell but the Heir, and therefore the Heir must sell; and that Matter was not tryed, but the Matter tryed was impro­per, for it was not to the purpose. And the Presidents of the Court run, that the Heir should sell, and therefore though the other Issues tryed are against the Plaintiff, that is not, but remains in Iustice for the Plaintiff; and cited divers Presidents, viz.

The Lord Keeper. Justice Twisden. Justice Wyld.
Pheasant and others, Executors of Walter Phea­sant, against Ann Pheasant, the Relict of Walter Pheasant, the Mayor and Commonalty of Lon­don, and the Chamberlain. July 4.

WAlter Pheasant having taken to Wife the Defen­dant Ann, who was an Orphan, and had her Portion in the Chamber of London, after his Marriage took out 40 l. thereof, and by Will gives his said Wife her Portion in the Chamber of London, being 2800 l. and other things to the value of 1000 l. on Condition she renounce her Dower. She accepts this Legacy before and after her Husbands death. The Bill was to perform the Will and to renounce and release her Dower. She hath a cross Bill for her Portion in the Chamber of Lon­don against the Executors of her Husband, the Mayor and Commonalty and Chamberlain, and insists that her Portion belongs to her in regard the Security was unal­tered by her Husband in his life time, and so was as much as if it were a Debt due to her by Bond, and sought to recover her Dower besides.

For the Executors it was insisted, that the Monies in the Chamber of London is not there as a Common Debt, but vests in the Husband by Marriage, it being only de­posited to remain there till the Orphan comes of Age, which she attained during the Coverture. And it was also insisted, that the receiving of 40 l. out of it is an al­teration of the property, and owning of the Husbands Right to the whole; and that however she was concluded by the acceptance of her Legacy in lieu of her Dower. And it was said that the Mayor and Chamberlain have only the Custody of the Child, but not the Property of her Mony, but that is in custodia Legis until she comes of Age, and is only depositum, and not debitum in the mean time; and it would be inconvenient if the property of [Page 182]the Portion did not vest in the Husband by Marriage, for by the Marriage the Woman becomes dowable.

The Portion of an Orphan in the Chamber of London is of such a nature, that if the Husband die without altering the Property, his Widow, and not his Executors shall have it. The acceptance of a collateral satisfaction for Dower no Bar of Dower.The Lord Keeper conceived the Mony in the Chamber of London is a Debt, for the Chamber pays Interest for it, and if so, her acceptance of the matters devised to her will not bar her Dower, according to Vernons Case, 4 Rep. The acceptance of a collateral satisfaction is no Bar in a Writ of Dower; and so conceived Ann Pheasant is in­tituled to the Mony in the Chamber of London, but said he would consider of it.

And 30 Octob. 1670, for the Executors of the Husband it was insisted, that the Mayor and Commonalty have but the Custody of the Body and Goods of the Orphan, New Entries 346. And so the Property is in the Orphan; and the Orphan hath in truth a legal possession, the Cham­berlain being in the nature of a Servant to the Orphan, and Possession of the Servant is Possession of the Master, 1 Cro. 37. So that by the Marriage this Mony is the Husbands. As if an Infant Feme bring Mony into this Court, and marries, and dies, the Property is in the In­fant, and by Marriage becomes the Husbands. But it was answered, that was not like the principal Case; for here the Chamberlain pays Interest, &c. but no Interest is payable for Mony in Court; and the Property here is in the Infant. And so all agréed the Monies belong to the Widow, and not to the Executors.

The Lord Keeper.
Tall against Ryland. October 13.
On a Demurrer.

THE Plaintiff and Defendant were Fishmongers; and had contiguous Shops; and Differences having been between them they were made Freinds, and by that Mediation the Plaintiff was to give, and did give the Defendant a Bond of 20 l. penalty, conditioned to behave himself civilly and like a good Neighbour to the Defendant, and not to disparage his Goods. The Plaintiff afterwards asked the Defen­dants Customer, whilst cheapning a parcel of Flounders, why he would buy of the Defendant, and told him those Fish stunck, and so the Defendant lost that Customer; and the Defendant having sued the Bond and assigned that for breach, had a Verdict. And to be relieved against that Verdict and the Penalty of the Bond was the Prayer of the Bill, which alledged that the Damage was not considerable nor valuable, and therefore the Plaintiff ought to be relieved against the Verdict for the Penalty.

No Relief in E­quity against a Bond not to disparage ano­ther Mans Goods.The Defendant demurred, for that the Bond was not conditioned for payment of Mony or performance of Co­venants, or for any matter for which Damages in an Action of Debt, Covenant or any other Action was reco­verable, nor was there any way to measure the Damages but by the Penalty.

And the Bond being to preserve Amity and Neighbourly Freindship, for the breach of which the Plaintiff did sub­mit to pay that Penalty, and there can be no Tryal had to measure the Damages for breach of the Condition, other than the Parties have submitted to.

No Relief to be given against a penal Bond, where there is no measure to ascertain the Da­mages for the Breach.His Lordship declared, That as this Case was, the Pe­nalty being but 20 l. he did not think fit to put the Defen­dant to answer, for that the Costs of Suit here and at Law would excéed the Penalty, and so the Demurrer was allowed. But his Lordship declared this was not to be a President in the Case of a Bond of 100 l. or the like; and though the Demurrer was allowed, the Defendant was to have no Costs.

The Lord Keeper.
Palmer against Whettenhal. October 13.
Upon a Demurrer.

THE Bill was, That the Plaintiffs Brother was seized in Fée of a Rent of 7 l. per annum, and had the same paid him by the Owner of the Lands out of which this Rent issued during his Life, and that by his death this Rent descended on the Plaintiff as Heir, and that the Owners of the Land did pay the Rent to the Plaintiff till 1641. and there had béen several Conveyances made of the Land in the late Troubles, and so no Rent paid since 1641. and that the Lands were now come to the Defen­dant, and so the Bill prayed that he might be decréed to pay the Rent and Arrears.

The Defendant said he did not know any such Rent was issuing out of the said Lands, and that he and those under whom he claims, had enjoyed those Lands thirty se­veral years under divers Purchases, without any demand of the Rent that he knew of, till the Bill, and demurred. [Page 185]For that the Bill sought to subject his person (which was not to be liable at Law) to pay the Rent and Arrears,The person is not to be sub­jected in Equity to a Rent. and for that it having been so long unpaid, it was to be presumed the Rent was extinguished. And however it ap­pearing by the Bill, that the Plaintiff had Seisin,No Relief in E­quity for a Rent of which the Plaintiff hath Seisin. he might bring his Assize at Law; and if that had not been a Seisin, it was said that all the Relief this Court would have given, would be but to give Seisin. And on Debate the Demurrer was allowed.

The Lord Keeper. The Master of the Rolls. Justice Rainsford. Justice Windham.
Hide against Pettit. October 25.

THE Parties in Court signed an Order by consent to refer their matters to Arbitrators finally to de­termine, and their Award to be final, and stand ratified by Decreé without any Appeal. One of the Parties after that he had attended the Reference, and found they in­clined to order him to pay the other Party a Sum of Mony, countermands the Submission.

And the first Question was, Whether this Submission was revoakable?

A Submission to an Award by consent of Par­ties by order of this Court is re­voakable.Of which the Lord Keeper at first seemed to doubt; but on Argument and producing a President in point, Norton against Rowland, 8 July 1664. and 10th of the same July, the Iudges were both of Opinion, that there could be no Submission to an Award in Law or Equity, but what was revoakable, and that nothing under a Legislative Power can make such a Submission irrevokable, which in its nature is revoakable. But it was an abuse to the Court, as it was conceived, to revoke it, for which the Court might justly lay the Party by the Heels.Attachment a­gainst a Party revoking a Sub­mission to an Award by Or­der by Consent. And so in this Cause an Attachment was awarded against him nisi causa. In this Case it was observed, that whereas formerly the course was upon Submission to award an Attachment against the Party failing, yet of late the Courts of Law do refuse to grant Attachments in such Cases, [Page 186]but leaves the Party to his Action, the Rule being Evi­dence of his Submission.

In the principal Case the Arbitrators had determined some Matters, and had left others undetermined, and submitted those other Matters to the Court: And whether this was therefore such an Award (being but part of the Matters referred) as was fit for the Court to decrée, was the Question. And though at Law an Award may be good, though but for part of the Matters referred, unless the Sub­mission be conditional to make an Award on the Pre­misses;Equity will not decree an Award unless it be of all Matters referred. yet Equity, as it was insisted, ought not to de­crée such an Award, unless it be of all Matters referred. And so were both the Iudges of that Opinion; for its not a determination pursuant to the Reference, and so the Award was set aside.

The Lord Keeper. Justice Windham.
Squib and Bradshaw against Bolton. Octob. 25.

THE Question was, If upon a Submission by Or­der of Court by Consent to Arbitrators, and the Award to be final and stand decréed, any Exceptions lie to such an Award as to a Report. And whether, if it were an unjust Award, the Court ought to decrée it; and whe­ther the Court should examine the Iustice of the Award, and the Merits of it, which the Master of the Rolls had taken upon him to do in this Cause, by ordering the Arbitra­tors to certifie the Court whether they had considered of cer­tain particulars,Whether Ex­ceptions are to be admitted to an Award on a Reference by Consent. which the Party disliking the Award, said, they had not, which were in issue in the Cause. And upon an Appeal from the Master of the Rolls Order, it was now ordered that the Parties should attend the Master of the Rolls, and satisfie him in what he doubted. So here the Court examined the Iustice of the Award which in this Cause, and the next precedent, the Court did think upon Circumstances, might be done, and that if an unjust Award was desired to be confirmed by Decreé, and the Court in­formed of it, the Court ought not to decrée it.

The Lord Keeper.
Bush against Rishley. October 31.

THE Bill was to have a Rate Tythe setled by De­cree against the Impropriator, and prevent multipli­city of Suits.

And for the Plaintiffs it was prayed, that the Court would either decrée that the Plaintiffs should hold their Lands under that Modus decimandi, which at a Tryal at Law pending this Suit was found by Verdict, or that the Court would direct another Tryal to try the verity of the Modus, and reserve the Cause till after the second Tryal (if the Court were not satisfied with one Verdict) It be­ing insisted, that after such Tythe Rate had been ascertained by two Verdicts, the Court ought to decrée an Enjoyment of the Lands, for which the Modus was payable under that Rate-Tythe, and dischage the Tythe in kind; and it was compared to the Case of Copyholders, that have their Fines and Services ascertained by the aid of this Court, by di­recting of Tryals for that purpose first, and after decréeing according to the Verdicts on such Tryals.

But for the Defendant it was insisted, that this Court had not at any time decreed a Modus decimandi, and that Tythes were payable in kind by Common Right.

A Rate-Tythe is not to be decreed in Chancery.And though it was insisted for the Plaintiffs that it was frequent in the Exchequer to decree a Rate-Tythe, the Lord Keeper did not think fit to decree in such a Case, but ordered two Depositions to be made use of at Law, as oc­casion served. And dismist the Bill.

The Lord Keeper. Justice Wyld.
Bagg against Foster.
On a Demurrer.

WIlliam Bushel on his Marriage with Dorcas his Wife, enters into a Bond of 1000 l. to Trusteés to her use, in August 1648. conditioned to be void, if he did not within two Months settle the Lands in Question on those Trusteés, to the use of himself and Dorcas, and their Heirs in No­vember next. After William Bushel covenanted with one of the Trustées to stand seized of those Lands to the use of himself for Life, Remainder to Dorcas for Life, Re­mainder to his first and tenth Son in Tayl, Remainder to his own right Heirs. William Bushel dies without Issue; Dorcas survives many years, and marries with one Bagg, by whom she hath Issue the Plaintiff, her Son and Heir, an Infant. And now in his behalf the Bill is brought against the Defendant, who claims under the Heir of Wil­liam Bushel, to inforce a Conveyance according to the Con­dition of the Bond.

For the Defendant it was demurred unto, for that the Bond was in 1648. and William Bushel in November after made a Settlement, ut supra, to which one of the Trustees was a Party. And for that there is no Issue of the Plain­tiffs Mother, and William Bushel, and the Plaintiff, a méer Stranger to William Bushel, being the Child of Dorcas by another Husband, and that the Conveyance, ut supra, ought reasonably to be intended for a performance of the Marriage Agréement, and at least that the Plaintiff ought not to have any Relief in Equity, it not appearing that any Pos­session hath gone according to the Bond, or that any Relief was till now sought, though it be one and twenty years since.

On the Argument of the Demurrer it was for the De­fendant insisted, that there being no Agréement but what was in the Condition of the Bond, and no Articles or Agréement besides, and the Bond two and twenty years old, and such Settlement, ut supra, made unto one of the [Page 189]Obligeés of the same Land mentioned in the Condition, though not to the same Vses,An Agreement contained in the Condition of a Bond shall not be turned into a collateral Exe­cution by Decree of the Land. and Dorcas never question­ing it in her Life, and the Agreément being secured by Penalty, which was relyed upon, that this Case did differ much from an Agreément by Articles to settle Lands, for here the Party rested on a Penalty, and there was no reason to turn such an Agréement as this was, into a col­lateral Execution by decréeing the Land, which the Court did conceive reasonable, and so allowed the Demurrer.

The Lord Keeper.
Withers against Kelsea. November 16.

A Factor gives his Daughter 300 l. Portion charged on Lands, and dies: The Daughter marries and hath a Ioynture settled on her by her Husband, and hath no other Portion but the 300 l. The Husband dies be­fore any part of the 300 l. was paid. The Plaintiff is the Executor of the Husband, and sues the Widow and the Heir of the Lands for the 300 l.

The Question was, Who should have the 300 l. whe­ther the Executor of the Husband, or the Wife?

Where the Por­tion in Mony shall go to the Executors of the Husband, and not the Wife surviving.For the Executor of the Husband it was insisted, that he having settled a Ioynture in consideration of the Por­tion, which Ioynture the Wife enjoyed, that thereby in Equity the Right of the Portion was so vested in him, that the Executor, and not the Wife ought to enjoy it.

The Lord Keeper declared, That this 300 l. being to go out of the Rent of the Lands, and charged upon Lands, was not in the nature of a thing in Action, but of a Rent, and given to the Husband by the Marriage: And so de­creéd for the Plaintiff the Executor. Sed quaere, for a Rent belonging to a Feme doth, in case she survive the Husband, belong to the Wife, and so the Arrears that in­cur during the Coverture, 1 Inst. 351.

The Lord Keeper. Justice • Twisden, , • Wyld, , • Rainsford, , and • Windham.  Holt against Holt. December 7.

ALexander Holt a Citizen of London, seized and posses­sed of Houses in London, and elsewhere of a publick Title, and possessed of Houses in St. Martins in the Fields by Lease from the Church of Westminster, 18 May 1656. by his Will in Writing gave 10000 l. to his Daughters, being his only Children, and Orphans, to be paid out of his Estate Real and Personal at their Age of one and twen­ty, or Marriages (which first shall happen) and made A­lexander Holt his Nephew, and others his Executors, and dyed. The Executors proved the Will; and the Executor Alexander and others, as his Sureties, in 1658. entred into a Recognizance to the Chamberlain of London, for the pay­ment of the 10000 l. (which by the Will was first to be paid) before any others should have any benefit of his Lands, &c.

By the Restauration of the King the Lands of the pub­lick Title reverted to the right Owners. And by the Fire in London the Houses of the Testator in London were burnt down, so that it was to be doubted his whole Estate would not amount to the 10000 l.

And the first Question was, Whether the Recognizance should in Equity extend any further than only to make good to the Orphans so much as the Testators Estate considering the Losses aforesaid, and as it now was really worth?

And it was insisted by the Counsel of the Sureties of the Executors, that it ought not to be binding any farther in Equity. For that if the Chamber of London had taken the Estate of the Testator into their Hands, it would have been in no better plight than now it is. And the intention of the Security was but that the Executor should not mis­imploy or wast the Estate, which (as it was declared) they had not done, but were ready to account for what they had already received.

The Condition of a Recogni­zance qualified in Equity accor­ding to the E­quity of the Matter before the Recogni­zance was given. A Condition of a Recognizance for payment of Mony generally, qualified in E­quity to the ori­ginal Equity.The Court as to that Point were all of one uniform Opi­nion, that the Recognizance should be made use of no fur­ther than to make good the value of the Testators Estate over and above the Losses by Fire, and the Kings Return, and decreed the same accordingly.

Albeit it was insisted for the Orphans, that the Condition of the Recognizance was generally for payment of the 10000 l. (and so it was) And the Executor Alexander had thereupon taken upon himself the absolute Ownership of the Estate, and managed it as his own. And that now a Loss had befallen the Estate, the Orphans ought not to be carried back to the Account of the Testators Estate, for that by the Recognizance the Orphans Portions were now become Debts. Nevertheless for the Reasons before it was de­creéd as aforesaid.

And the next Question was, Whether the Lease held of the Church of Westminster, which had beén renewed by the Executors, and a Fine paid, and new Houses built there­upon by the Executors, should be taken to be part of the Testators Estate?

Where a Lease renewed by an Executor shall be lyable to a Legacy of the Testators.For the Executors it was insisted, They were not Exe­cutors in Trust for the Orphans, but were to pay them out of the Estate 10000 l. only; and the Estate was looked up­on at the Testators making his Will, and really was then and before the said Losses of much greater value, and a benefit was intended the Executor Alexander by the Testa­tor. But the Court did unanimously agrée, That the Daughters should have the benefit of the renewed Lease paying the Fine and other Charges of improving.If a Trustee of a Term surrender and take a fur­ther Term, that shall be for the benefit of Cestuy que Trust. And so it was decreéd accordingly. But this must be understood so far only as to the compleating the Orphans 10000 l.

But it was agréed by the whole Court, that in case of an Executorship in Trust, the renewal of such a Lease shall go to the benefit of the Cestuy que Trust.

Judge Moreton.
Verhorn against Brewine and others. Jan. 18.

THE Plaintiff sued as Administrator to have a discovery and an Account of the Estate of his In­testate.

The Defendant pleaded that the supposed In­testate made a Nuncupative Will, and another person, who he named in his Plea, his Executor; and insisted he was not answerable or accountable to the Plaintiff, nor to any other but the Executor.

A Nuncupative Will is not pleadable in any Court before Probate.On debate it was ruled, that before Probate of the nun­cupative Will (which is only to be proved in the Ecclesi­astical Court) it is not pleadable in any Court against an Administrator; and so the Plea was over-ruled.

William Barber against William Took and Charles Lindsey. January 25.

MAthew Lindsey was seised in Fée of the Lands in Question, and by Will in Writing deviseth them to the Plaintiff in Fee, and after mortgageth those Lands to the Defendant Took for years, and dies, the De­fendant Charles Lindsey being his Cousin and Heir.

A Conveyance for years is not a Revocation of a Devise in Fee, but pro tanto only.And the Question was, Who should have the Redemp­tion, the Plaintiff Barber or the Heir?

For the Plaintiff it was insisted, That the Devise to him, being of the Fée, and the Mortgage after being but a Term for years, that was a Revocation but pro tanto, and not pro toto, and the Devise did notwithstanding pass the Reversion, and consequently the Equity of Re­demption.

And of that Opinion was the Iudge. But the Defen­dant, the Heirs Counsel, insisted, that there was an actual Revocation of the whole Will. It was directed to be tried whether there was an actual and total Revocation.

The Lord Keeper.
The Poor of the Parish of St. Dunstan, by English Bill, against Beauchamp. Febr. 6.

A Decree by Commissioners for Charitable Uses, confirmed by original Bill. A Decrée having béen made by Commissioners upon the Statute of Charitable Uses, those for whom the Decreé was brought an Original Bill, setting forth that the Defendant to the Decreé threatned, when the Witnesses were dead, they would except to the Decrée, and so prayed that the Defendant might shew Cause, why the Decrée should not be confirmed. The Defendant by Answer submitting to the Decree, it was decreed by the Lord Keeper, That the Decrée of the Commissioners should be confirmed.

The course of Proceedings in Petty B [...] on Decrees of Cha­ritable Uses. Q [...]od nota, and Quaere, What néed of such a Bill; for that when a Decree is made by Commissioners, the Course is to return it into the Petty Bag, and then to serve the Defendant with a Writ of Execution, upon [Page 194]which Service the Defendant may file Exceptions, and pray to stay Proceedings till they be heard. But if the Defendants do not then except, but submit to the De­cree, it seéms reasonable they should be concluded thereby, and not be admitted to Exceptions after.

The Master of the Rolls.
Dakins and his Wife against Berisford. Febr. 6.

LEases were devised to the Defendant by his eldest Brother, to be sold for several purposes, and amongst other, in Trust that the Defendant should purchase in his own Name an Annuity of 80 l. per annum, for the Life of the Plaintiffs Wife, and pay the same to her and her Assigns. The Bill was to inforce the payment of this Annuity.

The Defendant insisted by Answer, that he had constantly paid the Annuity to the Plaintiffs Wife (from whom the Plaintiff lived apart) and that the Bill was against her Consent, and that it was the intent of the Donor to be for her only benefit, the Will being, that he should buy in his own Name the Annuity in Trust for the Plaintiffs Wife (who is the Defendants Mother) and her Assigns, and so insisted, that the Plaintiff not inhabiting with her, he ought not to be put to pay the Annuity to him. It ap­peared by Proofs that the Cause of the Plaintiffs first absenting himself from his Wife was for fear of Debts, and that he had since solicited her by Letter to co-habit, but she refused.

The Master of the Rolls declared, That in this Case the Husband was the Assignée of the Wife,A Trust for the benefit of the Wife without negative words doth not ex­clude the Hus­band. and that there be­ing no negative Words by the Will to exclude the Husband from the Annuity, he could not exclude him; and so de­créed the Defendant to pay all the Arrears of the Annuity since the Bill exhibited, and the growing Annuity for the future to the Plaintiff the Husband.

The Lord Keeper. Justice Twisden. Justice Moreton.
Smith and others against Stowel and others. February 17.

THERE was a disposition in 1579 (which was before the Statute of 43 Eliz. for Charitable Uses) to a Charity, part of the Lands were of a defective Title, and the whole Disposition void, being before the Sta­tute. Yet an Agreement was made betwéen the Parties interessed and the Trustée, for the setling the Vse designed, so much as was proportionable in value to what the Do­nor had to give, and this was setled accordingly before the Statute, and long Leases were let of the Ground to divers Tenants, at small Rents, to build, who had thereby im proved that Ground that was but 20 l. per annum to 150 l. per annum.

An Appoint­ment to a Cha­rity that was precedent to the Statute of 43 Eliz. and so void, is made good by the Statute.A Decreé was made by the Commissioners for avoiding the Tenants Leases, they not being in strictness of Law good.

Vpon Exceptions to that Decree, it was declared by the Court, that though the Charity was precedent to the Statute, yet the Statute subsequent had a retrospect and would make it a good appointment, that was not so be­fore (but void.) And it was declared, that so as the Ter­tenants be no losers they ought not to be gainers in the Case of Charity: And so ordered,Ter-Tenants Lessees of a Charity ordered to augment their Rent. that during the Ter­tenants Leases there should be an Augmentation of 50 l. per annum allowed by them in proportion to the Poor.

The Lord Keeper. Justice • Twisden, , • Wyld, , • Rainsford, , and • Windham. 
Henry North Esquire against Charles Crompton Esquire. March 25.

KAtharine Crompton Spinster, seized in Fee of the the Lands in Question, by her Will in Writing the 21st of January 1669. expresseth thus: I ordain and constitute Henry North Esquire, (which is the Plaintiff) to be mine Executor of this my last Will. And I do give all my Estate, real and personal, to dispose of for the payment of all my just Debts; and for the performing of all such Legacies as I have herein, or by the Codicil an­nexed, bequeathed unto my Executor abovenamed; and gives several Legacies in Mony, and amongst others 200 l. to the Defendant her Vncle, who is Heir at Law; and a Legacy of 500 l. being omitted to the Plaintiffs Sister, it was inserted in a Codicil.

Mr. North's Bill was to prove this Will per Testes.

Mr. Crompton's Bill was to be relieved upon the Trust of the Devise, as he supposed, after the Debts and Lega­cies paid, and to discover what the Debts were.

These Causes came first to be heard 8 Febr. 1670. be­fore the Lord Keeper and Baron Wyndham, and then these two Questions were stirred by the Court.

1. Whether this were a Devise of Lands in Fée?

2. Whether Mr. North (the Plaintiff Crompton claim­ing by an implyed Trust) after Debts and Legacies paid, might not be admitted to aver against that Implication?

Of both these Points the Court took time to consider.

3 March 1670. The Cause being heard again before the Lord Keeper and Mr. Baron Wyndham, they de­clared they were both of Opinion, That it was a Devise [Page 197]of the Lands in Fee, and then they doubted whether a Trust be crented for the Heir, of the Surplus.A Devise of all Estate real and personal for pay­ment of Debts, is a Devise in Fee. And another Question they made, If a Trust, whether an Averment did not lie for Mr. North, it being but an implyed Trust, and not within the Statute of H. 8. Of Wills.

No implyed Trust of the Surplus for the Heir.And 25 March 1671. the Lord Keeper and the four Iudges all agreéd, That a Feé passeth by the Devise. And as to the implyed Trust all conceived there was not any implied Trust for the Heir for the Surplus; for if there were, the Devisee had no benefit; and to no purpose was the Devise of the 200 l. to the Heir, if she had intended the Surplus to the Heir.

The Lord Keeper.
Thomas Martin Clerk, against Douch and Overton.

ONE Foster deviseth to the Plaintiff in these Words, Item, I give to my Cousin Thomas Mar­tin Clerk, late Minister of Houghton in Northamp­tonshire, and living thereabouts, I do order 40 l. to be paid him to be disposed of for certain Uses, which I shall in a private Note acquaint him with, A Sum of Mony given to one to dispose as the Testator shall appoint by a Note, who dies without such ap­pointment, a good bequest to the Party. and gave him no Note or direction how to dispose of it, but died, the Defen­dants being his Executors. And whether the Plaintiff should have the 40 l. was the Question.

The Master of the Rolls was of Opinion the Plaintiff should have the 40 l. for that the Testator did not intend it should come to his Executors, but had by his Will given it away from them; and so he decréed the Defendant to pay the 40 l. to the Plaintiff.

The Lord Keeper.
Pate against Hatton or Hutton. May 15.

A Citizen and Fréeman of London deviseth to his Son a gross Sum, which did exceed the Customary part, and deviseth that if his Son dye before he attain one and twenty, that Sum over to another.

The Question was, If the Devise over was good?

A Citizen in London cannot devise his Childs part over to another, in case the Child die in Minority.And it was adjudged, and so decréed by the Lord Keeper, That the Devise over for so much as was the Customary part, was void, and that the Orphan dying within Age, his Administrator was intituled to so much as was the Custo­mary part, and the Surplus of that gross Sum to go to those to whom it was devised over.

The Lord Keeper.
Lambert against Bainton. May 15.

MR. Dunch in 1646. had conveyed the Lands in Question to Sir Edward Bainton in Fée, in Trust, to sell all, or any part of it for payment of his Debts. Sir Edward Bainton had conveyed his Lands to his Son, and was dead. Dunch being dead and the Plaintiff be­ing intituled to the benefit of the Trust after the Debts paid, brought the Bill to avoid the Conveyance made by Sir Edward Bainton to his Son, and so have a Re­conveyance.

For the Defendant it was insisted, That though it was a Trust in Sir Edward, Where a Trustee for Sale of Lands for payment of Debts pays to the value of the Lands, thereby he becomes a Purchaser him­self. yet Sir Edward had paid the Debts to the value of the Estate, and was thereby be­come a Purchaser as much as if he had sold the Lands to another.

The Lord Keeper declared, That if Sir Edward Bain­ton had paid to the value of the Lands, he was a Pur­chaser; but it not appearing what he had paid when he [Page 200]made the Settlement more than he received, referred it to a Master to examine, and declared, that the Defendant, as to so much as Sir Edward had then disbursed, should be taken as Purchasers, because Sir Edward might sell all or any part; and so the Defendant is a Purchaser pro tanto.

The Lord Keeper.
William Vanbrough against William Cock and his Wife, and Peter Drybutter. May 17.

ABout seventéen years since, Cornelius Beard bequeaths to his Sister, then in her Infancy, 250 l. to be paid at Marriage, or one and twenty years, and made one Andrew Drybutter and the Plaintiff Executors, and dyed, leaving his Sister young. Both the Executors made Pro­bate of the Will, but the Plaintiff at the desire of the Sisters Friends did forbear to meddle with the Testators Estate, and left it wholly to Andrew Drybutter, the other Executor, who only did act in it. Andrew dying he made Elizabe [...]h his Wife, his Executrix. Se possessed what there was of the first Testators Estate, and paid to the Defendant Cock's Wife, then the Wife of one Earl, 100 l. part of the 250 l. and the said Elizabeth Drybutter kept all the first Testators Books and Papers, and that by the desire of the said Legatee, and she dying she made the Defendant Peter Drybutter her Executor. The Defendant, Cock's Wife, libelled in the Spiritual Court against the Plaintiff for her 250 l. and hath Sentence there against him for the whole, hanging this Suit, and yet hath by Answer confest 100 l. part of the 250 l. to be paid.

The Scope of the Bill was to be relieved against the Spiritual Court, setting forth that by that Law the Plain­tiff having joyned in the Probate would be charged with the Legacy though he did not meddle with the Estate; and that it was against Equity to charge one Executor with the Receipts of another. And the Bill charged that the other Defendant Drybutter had Assets both of An­drew Drybutter and Elizabeth Drybutters Estate, and if they had not paid as far as they had Assets of Beard's Estate [Page 201]the Defendant Drybutter, and not the Plaintiff ought to pay what was unpaid of the 250 l. Legacy.

The Defendant Drybutter confessed he had Assets of the said Andrew and Elizabeth, his Father and Mothers re­spective Estates, and insisted that they had fully administred Beard's Estate, and the Question was what Relief they ought to give the Plaintiff against the Sentence in the Spiritual Court.

Whether a Sen­tence in a Spiri­tual Court be subject to Exa­mination in Equity.The Lord Keeper declared, That the Iudgments of the Ecclesiastical Court were as subject to the Equity of this Court, as Iudgments in the Common Law Courts; and howbeit at Law one Executor is not lyable to the Devastavit of another, yet in the Ecclesiastical Courts, and by their Law, if an Executor prove the Will, they will charge him, though he do no further intermeddle to pay the Legacies: But Quaere if that be not only where there is a failer of bringing an Inventory, Doctor & Stud. 67. And the Lord Keeper declared the Plaintiff is without Relief by Appeal from the Sentence, because the Iudges Delegate must judge according to that Law, and so inclined to relieve the Plain­tiff, but took time to advise.

Doctor & Student ut supra, Presumption. A Law grounded on a Pre­sumption, if the Presumption be untrue is not to be holden in Conscience; for Stabitur Praesumptio donec probetur in contrarium.

Sir Ralph Bovey against Skipwich. May 25.

IN 1651. Sir Francis Drake made the Plaintiff a Se­curity out of the Manor and Rectory of Waltham upon Thames. Afterwards in 1656. Mortgage. Antea. Drake made the Defen­dant a Security for Mony out of the Rectory only (the Defendant having no Notice then of the Plaintiffs Se­curity which was for Mony also.) Afterwards the Defen­dant hearing of the Plaintiffs Security, buys in a Secu­rity precedent to the Plaintiffs, which one Beddingfield had both upon the Manor and Rectory.A puisne Mort­gagee buying in a precedent In­cumbrance, shall hold against a middle Mort­gagee, till both are satisfied.

1. Question was, Whether the Plaintiff should be ad­mitted to redéem Beddingfield's Security without paying off what was due to Skipwith? And it was ruled he should not. Vide Marsh and Lees Case.

[Page 202] Where a Mort­gagee buying in a precedent Se­curity of the Lands in his Mortgage and other Lands, shall hold all against a middle Mortgagee of all those Lands, till all due to him on both Securities be sa­tisfied. 2. Question was, Whether inasmuch as the Defendants Security was only out of the Rectory, and the Security he bought in from Beddingfield was of both the Manor and Rectory, the Defendant should make use of Bedding­field's Security as to the Manor after that by the Profits of the Manor and Rectory Beddingfild's Debt was satisfied? And whether then the Plaintiff should not then be admit­ted to enjoy the Manor, his Security being as well of the Manor as the Rectory, and the Ofendant to hold only the Rectory till he was satisfied?

Wyld and Twisden were of Opinion, That after Skip­with had received what was due on Beddingfield's Secu­rity he should receive no more Profits of the Manor, but the Plaintiff to be let in to receive them, and the Defendant only to make use of Beddingfield's Security as to the Rectory to protect his Security of the Rectory. But it was resolved and ruled, that the Defendant should hold both the Manor and Rectory against the Plaintiff till all due to him on both the Securities was paid him. Quaere tamen.

The Lord Keeper.
Rich against Sydenham. May 26.

THE Plaintiff upon the Loan of 90 l. had gotten a Bond from the Defendant of 1600 l. for payment of 800 l. and Iudgment thereupon. The Defendant in the Right of his Wife was entituled to certain Lands that were estated in other persons in Law in Trust for her.

Where the Con­tract is intire, and inequitable Equity will not apportion Relief for part.The Bill was to have those Lands subjected to the Plaintiffs satisfaction here, inasmuch as the Defendant was intituled to the Trust in the Right of his Wife.

But the Security being gotten from the Defendant when he was drunk, the Lord Keeper would not give the Plain­tiff any Relief in Equity, not so much as for the Princi­pal he had really lent; and so the Bill was dismist.

The Lord Keeper.
The Mayor and Aldermen of London, and Byfield an Infant against Slaughter, the Executors of the Plaintiffs Father. May 27.

THE Bill was to bring in one that lived out of the Iurisdiction of London, to come and give Security to the City for the Orphans Portion, according to the Cu­stom of the City.

The Defendant by his Answer offers to do as this Court should direct, but being no Freeman, would not be subject to the City Orders.

The Chancery assistant to the Jurisdiction of Mayors Court.The Recorder. This Court useth to assist the City in such like Cases, and on Petition useth to grant Subpoena's to persons to appear before the Mayor in his Court, and cited a President 28 Febr. 3 Jac. Fish and Cole's Case, of a Subpoena out of the Subpoena Office.

Maynard for the Defendant. This Custom concerns the Country as well as the City, and must be tryed by Verdict; and its inconvenient for Country Gentlemen to be put to give Security to the Orphans Court by Recog­nizance.

The Lord Keeper decreed the Plaintiffs to try the Cu­stom.

The Lord Keeper.
Doctor Salmon against the Hamborough Company by the Name of the Governour, Assistants and Fellowship of Merchant Adventurers of England, and divers particular Members of that Company by Name in their natural Capacities.

A course to re­cover a Debt from a Corpo­ration that hath nothing where­by it may be summoned.THE Bill charged, that the Company were in­corporated prout per Letters Patent, and had power to make By-Laws, and to assess Rates upon Cloaths (which was the Commodity they dealt in) and by Poll upon every Member to defray the necessary Charge of the Company, and that the Company had imposed Rates accordingly, as namely, 4 s. 6 d. upon every white Cloath exported, and divers others, and there­by raised 8000 l. per annum towards the support of the Common Charge of the Company, and that they had thereby got great Credit, and borrowed great Sums of Mony by their Common Seal, and particularly the Plaintiff lent 2000 l. upon that Security many years since. And the Bill did set forth divers advantges they had [Page 205]in Trade by being Members of this Corporation, which others wanted. And the Bill did charge, That the Com­pany having no Common Stock, the Plaintiff had no re­medy at Law for his Debt, but did charge that their usage had been to make Taxes, and levy Actions upon the Members and their Goods, to bear the Charge of their Company to pay their Debts, and did complain that they now did refuse to execute that power, and did particular­ly complain against divers of the Members by Name, that they did refuse to meet and lay Taxes, and that they did pretend want of power by their Charter to lay such Taxes, whereas they had formerly exercised Power, and thereby gained Credit; whereupon the Plaintiff sent them 2000 l. which was for the use and support of the Companies Charge, and so ought to be made good by them, and so prayed to be relieved.

Paschae 1656. this Bill was filed, and the Company ser­ved with Process, but would not appear, they having no­thing by which they may be distrained: But divers parti­cular Members being served in their natural Capacities, did appear and demur, for that they were not in that capaci­ty liable to the Plaintiffs demands. 10 May 1666. On the Argument the Demurrer was allowed, and the Bill dismist as to them, and that dismission enrolled, and thereupon a Petition of Appeal was preferred to the Lords in Parlia­ment, admitting that in the ordinary course of Proceed­ings in Chancery that Court could not help the Plaintiff. But in Causes of this nature the Lords House had given special directions to the Chancery to relieve,Where the Chancery (ac­cording to rule) cannot relieve in a just Cause, the Parliament will give special direction for re­lief. and it had been accordingly so done, and produced two Presidents against Companies in London for that purpose. And to this Pe­tition the Defendants particularly named did put in an Answer, Plea and Demurrer, and the Company, tho se­veral times summoned, did not appear. And upon debate of the Matters before the Lords at the Bar of the Lords House 20 January 1670. this Order was made.

The matter upon the Petition of Salmon, Dr. of Phisick, exhibited to the Lords Spiritual and Temporal in Parlia­ment assembled, against the Governors, Assistants and Fellowship of the Merchant Adventurers of England, com­monly called the Hamburgh Company, and Sir Charles Lloyd Baronet, Sir Anthony Bateman Knight, Thomas Smith, Richard Wyan, John Dogget, Henry Colliar, Henry [Page 206]Smith, John Lethieulier, Christopher Pack, George Wy­tham, and others, Members of the said Company, and upon the Answer, Plea and Demurrer of the said Row­land Wyan, John Dogget, Henry Collier and John Lethieu­lier put in to the said Petition (the Governor, Assistants and Fellowships, tho several times summoned, not appear­ing) being heard at the Bar of this House, in presence of Councel learned on both sides, the said Petition being on Appeal made from a Dismission in the High Court of Chancery, and the Petitioners Bill there. Their Lord­ships on reading the said Petition, the Answer, Plea and Demurrer thereto, and the said Dismission, and the Char­ter by which the said Governor and Fellowship are incorpo­rated, and hearing what was alledged on both sides, do order that the Dismission for so much as concerns the said Company, be, and do stand reversed, and that the Lord Chancellor or the Lord Keéper of the Great Seal of Eng­land for the time being, do retain the said Bill. And that the said Court of Chancery shall issue forth the usual Pro­cess of that Court, and if cause be, Process of Distrin­gas thereupon against the said Corporation; provided the said Process be served one month before the return there­of. And if upon return of the Process, the said Corpora­tion shall not file an Appearance, or shall appear and not answer, the said Bill shall be taken pro confesso, and a Decree shall thereupon pass. But in case the said Cor­poration shall appear and answer within the time afore­said, then the Court of Chancery shall proceed to examine what the Plaintiffs just Debt is, and shall decree the said Company to pay so much Mony as the same shall appear to amount unto, with reasonable Damages. And in case the Corporation shall not pay the Sum decréed within ninety days after the service of the said Decrée upon their Go­vernor, Deputy Governor, Treasurer, Clerk or Secre­tary for the time being, then the Lords Spiritual and Temporal do farther order, adjudge and direct, that the Lord Chancellor or Lord Keeper for the time being shall order and decree that the Governor or Deputy Governor, and the twenty four Assistants of the said Company, or so many of them as by the Tenor of their Charter do con­stitute a Quorum for the making of Leviations upon the Trade or Members of the said Company for the use of the said Company, shall within such time as by the Lord Chancellor or Keeper shall be thought fit, make such a [Page 207]Leviation upon every Member of the said Company as is to be contributary to the Publick Charge, as shall be sufficient to satisfie the said Sum to be decreed to the Plaintiff in that Cause, and to collect and levy the same, and to pay it over to the Plaintiff as the Court shall di­rect. And such a Leviation is to be put in Writing and signed with the Hand of the Governor, Deputy Governor and Assistants of the aforesaid Company for the time being, and so many of them as by the Constitution of the said Charter do make a Quorum shall not make or re­turn such Leviations, as aforesaid, the Lord Chancellor or Lord Keeper may issue Process of Contempt against them, as is usual against Persons in their natural Capaci­ties. And if by the said time so to be limited by the said Court of Chancery the said Mony so to be assessed shall not be paid, then and from thenceforth every Person of the said Company upon such a Leviation shall be made to be liable in his Capacity to pay his quota or proportion as­sessed. And the Lord Chancellor or Lord Keeper is to order or decree, that such Process shall issue against any such Member so refusing or delaying to pay his quota or proportion as is usual against Persons charged by the De­cree of the said Court for any Duty in their several Capa­cities. And if the Total so returned and filed with the Register shall not amount to so much as shall be sufficient to satisfie the Sum decreed, with respect had to such Per­son as shall make it appear that they are overcharged, or ought not to be charged at all, Then the said Lord Chan­cellor or Lord Keeper for the time being may from time to time order that a new Leviation be made and return­ed into the Registers of the Court of Chancery, of such Sum as shall be sufficient, by way of Supplement for that purpose, to the payment whereof every individual Person is to be bound in such manner as aforesaid.

6 March 1670. The Lord Keéper on a Motion grounded on the Lords, ordered that the Dismission stand reversed, and the Bill stand revived, and that Process and other Proceedings issue as is thereby directed, and the service thereby directed be sufficient.

Accordingly the Treasurer and Secretary were served with a Distringas against the Company, and Copies of the Lords Order. The Sheriff returned Nulla bona; and no Appearance is made.

5 July 1671. Ordered the Cause be put into the Paper to be heard, and notice to be given to the Treasurer, Clerk and Secretary.

And now the 5th of July 1671. none appearing for the Defendants,Pro confosso. the Court decreed the Bill to be taken pro confesso, and the Defendants to pay the Plaintiffs Debt, according to the Lords Order in Parliament.

The Lord Keeper. Justice Wyld. Baron Windham.
The Lord Cornbury and Dame Flora his Wife, formerly the Lady Backhouse, against Simon Middleton, and other. July 1671.

THIS Cause begins fol. 173. and being abated by the Plaintiffs inter marriage since the last Hearing, a Bill of Reviver was brought, and the Cause was reheard by the Lord Keéper, assisted with Iustice Wyld and Baron Windham the third of March 1670. And the Case appearing to be as before, it was for the Defendants insisted, that the Contract made by Sir Hugh Middleton, with Mr. Bi­shop, did not bind,Cestui que trust of a Surplus hath but a bare possi­bility, and can­not sell. and that he being but Cestui que trust of a Surplus, had no power to sell, for that it was against the very essence of the Trust for him to have a power to dis­pose; and it would be a vain thing for any Parent to settle his Estate by way of Trust to prevent his Sons impru­dent disposition of it, (which Sir William Middleton did here so settle his Estate with a design to keep a Hand on his Son,) if notwithstanding his Son might have power to sell it when he pleased.

The breach of an Agreement is not devisable.And it was farther insisted on for the Defendant, that if the Agreément with Bishop were binding, yet the Plain­tiffs have no Title to have the benefit of that Agreement, for that the breach of an Agreement, as the Case was, was not devisable, and so the Plaintiff had no Title, Things in Action,Equity consists purely in Action and is only at­tainable by Pro­cess in a Court of Equity. as this Case is, being not devisable.

To which it was answered by the Plaintiffs Councel, That Equity consists purely in Action, and is only to be come by, by the Process of this Court; and cited Cole and Moors Case, 5 Jac. Moors Rep.

The remedy of an Agreement ought to be re­ciprocal. Windham was of Opinion that the benefit of this Agree­ment is not devisable: For Things that consist in Privity must be carried on in Privity, and Sir Hugh Middleton could not have inforced the Devisee, unless she had pleased to pay the Mony Bishop was to pay, and the remedy ought to be reciprocal

The consent of the Heir makes good a void de­vise. Wyld. Sir Hugh had an Equity to the residue after the Debt and Portions paid, and it was a Crime to sell a thing twice, and the Defendant was particeps Criminis, and so no Decree ought to be for him, but would have Sir Samuel Jones and the other Trustees for Sir William Mid­dleton, in whom three parts of the four were vested in Point of Law, convey fourteen shares to the Lady Corn­bury and her Heirs.

Lord Keeper agrees with Wyld that the clear Equity and Conscience was with Bishops Title, and that the Defen­dant Simon Middleton did interlope; but did much doubt upon the Devise. Yet forasmuch as Bishops Heir was a Defendant, and consents to the Devise by Answer, did Decree, that Sir Samuel Jones and the Six Clerks to whom he had conveyed by Order of this Court, should convey by consent of the Heir of Bishop fourteen shares to the Lady Cornbury and her Heirs.

The Lord Keeper upon the Hearing by himself alone in June 1670. being of Opinion to dismiss the Bill, and the Court being now divided in Opinion, the Defendant Simon Middleton petitioned for a Rehearing, and had a Hearing ac­cordingly in July 1671. before the Lord Keeper, Master of the Rolls, Rainsford, Wyld and Windham.

And now upon this Rehearing, it was for the Defen­dant Simon Middleton insisted, that the Agreement with Bishop did not bind, for the reason supra; and farther, that the Agreement it self was imperfect, because the Mony was to be paid as the Trustees should agree, and they did never agree to it, but Henry Middleton the only acting Trustee did so soon as he heard of it, utterly disagreed to it; and also for that the Agreement with Bishop was not pur­sued, for the Agreement with Bishop was in June 1657. and by that the Conveyances were to be executed in August next, but those not so much as prepared, nor any thing done in time, and but 250 l. paid, and the Defendant Si­mon had paid above 15000 l. and had a Conveyance by Deed and Fine of the whole thirty six shares (Bishops Contract being but for fourteen shares executed above [Page 210]twelve years since) and had been in the possession of the whole thirty six shares ever since; and that the Company of the New River had bought in an other Water-Work, from Sir Edward Ford, which was united to that of the New River, and mixt with it, and could not be distinguish­ed, and that no distinct Account could be taken, and so it was impracticable to decree the performance of the Agreement with Bishop, nor could Sir Hugh have com­pelled him to perform the same.Consent binds the Party, but shall not bind an other. And if the City which was lately burnt had not been rebuilt, or any other loss had befallen the Water-Work, the said Sir Hugh could never have compelled the Lady Cornbury to pay the Mony; and the Heirs consent tho it may bind himself, shall not put a Bargain upon an other.

But it was for the Plaintiff insisted, that the Mony Bi­shop was to pay, was enough to pay all the Debts and Legacies of Sir William Middleton, and thereby all the Trusts precedent to Sir Hugh might have been satisfied, and so Sir Hugh had a clear Title to the Surplus, and he was looked upon as the Owner, and the Contract with Bishop was in pursuance of the Trust, and he might by a Bill have compelled the Trustees to sell: And that the reason why the Agreement was not pursued in time, was because Sir Hugh Middletons occasions drew him to the Bath, and he writ a Letter to have it respited till he came back, which was not till after August. A Purchaser with notice. And the Defendant Simon was a wilful Purchaser, with notice of the Agreement, and Sir Hugh would have performed with Bishop, if Sir Hugh had not been perswaded by Simon; and Bishop did endeavour to take up Mony of Sir George Prat for that purpose, and that these doings of Simon were against Con­science, and that in Conscience the first Agreement ought to be performed, and the Court ought to decree with, and not against Conscience.

Windham adheres to his first Opinion, (viz.) that the Bill ought to be dismissed, for he was not satisfied that Sir Hugh had any such Interest as he could contract for, nor is it well come to the Lady Cornbury, tho Sir Hugh might by a Bill inforce the Trustees to sell;What a Man cannot transfer he cannot ob­lige by Articles. for what a Man may do himself, is not transferrable in all Cases; and what a Man cannot transfer, he cannot oblige by Ar­ticles. If Sir Hugh could not grant, he could not by the Articles bind; his Interest is but a meer possibility contin­gent; in its creation its so. Sir William hath a power to [Page 211]chargeIf Cestui que trust covenants that his Trustees shall convey, and he hath no means to force them to make such Convey­ance, Equity ought not to decree him to procure them to convey, but to leave the Cove­nantee to his Covenant. Cases that con­sist in Privity, are to be carried on in Privity. and doth so by his Will, and Sir Hugh could not dispose in his Fathers life time, and what Sir Hugh should have is uncertain, for the Trusteés might sell so much as to perform the precedent Trust. Nor was it intended by Sir William, that Sir Hugh should sell. If Sir Hugh had had the possession with this contingent Interest, it might have gone far; but Sir Hugh had no possession. If Sir Hugh had covenanted the Trusteés should convey, Equity ought not to decreé him to procure them to convey, but to leave the Covenanteé to his Covenant at Law; and by the Agreement the payment of the Mony is intangled, and doth not pursue the Trust; and Mr. Bishop could not inforce his Interest; nor is the Devisee bound to pay the Mony, nor shall she take it up or lay it down as she pleases. Cases that rest in Privity are to be carried on in Privity, and Strangers not to be ingaged in it. The Heir comes in as improper as the Defendant, and that cannot help it.

Wyld. This is a Case in Equity and in Conscience, and this Court is to help that side that hath Conscience. The Case is on a Trust, and that proper here, and an Interest in a Trust is in Equity assignable or devisable.A Fine of Te­nant in Com­mon passeth but his own Estate. And if Land be conveyed for payment of Debts and Legacies, and what remains to be to the Heir, the Heir may dispose, and the Fine to Simon Middleton by Henry doth nothing. For its but the Fine for one Tenant in Common which passeth but his own share. Possibily a Fine and non-claim may bar in Equity, but not here, for a Bill was presently filed. Notice is all in all in the Case; and its against good Con­science for Simon Middleton to enjoy; and the Court must judge with Conscience, and not against Conscience. If this be an Interest its devisable;Circuity of Action. and its but Circuity of Action to bring the Heir to revive; for if he will not ex­ecute the Estate to the Devisee, she must bring a new Bill against him. And concluded, that there ought to be a De­cree for the Plaintiffs, but no Action to be but of the 7650 l. to be paid by the Defendant, and to convey fourteen shares of the thirty six shares, and the mesne Profits to go against Interest.

Interest to be considered as it was at the time of the Contract, and not at the time of its Crea­tion. Rainsford conceived the Plaintiff ought to be relieved, for Sir Hugh had an equitable Interest that might be trans­ferred in Equity, tho it was in its creation contingent; and we are not to take our measure as it stood in the Crea­tion, but as it stood when the Contract was made with Mr. Bishop, and he that may transfer may covenant. That [Page 212]his Trustée shall do it. And Simon Middleton injuriously comes in with notice, and threatens Sir Hugh into this Contract, and conceived Bishop might devise, and con­cluded as Wyld did.

The Master of the Rolls agreed with Rainsford and Wyld, and looked upon the Agréement with Bishop to be in pursuance of the Trust.

The Lord Keeper when he first heard this Cause, was of Opinion to dismiss the Bill; but that was on a mistake, for he did conceive that all the Trustees had conveyed to Simon Middleton, whereas it seems that Henry Middleton (who was but one of the Trustees) had conveyed to the said Simon. Its a Cause of great consequence, and the Trustees were trusted as well for Sir Hugh as the others, and conceived the Plaintiffs ought to be relieved. Bishop hath the first Agreement, and Simon Middleton the second, and Equity ought to decree with the first, and the Fine and Conveyance carries no more from Henry than his fourth part, and carries Sir Hughs Equity no farther; and so de­creed, That out of the three parts remaining, fourteen shares of the thirty six parts shall be conveyed by the six Clerks to the Lady Cornbury and her Heirs, and no account of mesne Profits, but those to go against Interest. And as to Fords Water-Work, if it can be severed it cannot be taken into the Decree; but if it cannot, there must be an allowance for it, and so it was decreed accordingly. And whereas the said thirty six parts were charged with a Rent of 500 l. per annum to the Crown in Fee, and 100 l. per annum to Henry Middleton for life, and Sir Hugh in his Agreement with Bishop, had covenanted to discharge the fourteen shares he had agreed to sell Bishop from those Rents. It was farther decreed, that the Plaintiff should enjoy the fourteen shares discharged of those Rents, and that the other twenty two shares should be subject to the Plaintiffs indemp­nity therein, notwithstanding it was insisted, that Sir Hughs Covenant to discharge the fourteen shares of those Rents was meerly personal, and did not, nor could charge the whole Rents upon the twenty two shares.

The Lord Keeper.
Washbourn against Downes. December 5.

THE Question was, Whether a Recovery by Ce­stuy que Trust should bar as in a Case of an Estate at Law.

By the Fine of a Cestuy que Trust in Tayl, the En­tail may be bar­red.The Court held clearly, that a Fine of a Cestuy que Trust will bar the Estate, but not the Remainder over to another; because a Fine will pass or extinguish all Right or Title which the Cognizors have in the Land. But it was doubted, whether by a Recovery of Cestuy que Trust any thing be barred: For that if Tenant in Tail at Law suffer a Recovery, legal Exceptions may be taken to it; but if a Recovery may be in Equity, all those Exceptions are taken away; and as to the Case of Goodrich and Brown, fol. 49. It was said, that was with­out a President; and the Plaintiff in that Case doth not relie on his Decreé; but the Matter was afterwards com­promised. And it was a Question in Bathursts and Ema­son's Case; and that Case was agreed.

The definition of a Perpetuity.The Court in the Principal Case took time to advise, and advised the Parties to agrée. And in the Debate of this Case, it was said that a Perpetuity is, where if all that have Interest, joyn, and yet cannot barr or pass the Estate. But if by the concurrence of all having the Estate Tail may be barred, it is no Perpetuity.

Sir Robert Atkins against George Mountague.

THere was a Tryal at Barr touching the Title of the Master of the Hospital of St. Katharines, which the Plaintiff claimed by a Grant from the Queen Consort that now is; and the Defendant held and enjoyed by two Grants, one from Henerietta Maria, the Quéen Dowager; another from his Majesty that now is, before his Mar­riage.

Upon the Evidence divers Points arose.

Monasticon 2 d. part 460. 1. The Plaintiffs Title was founded upon the Charter of Quéen Eleanor, Dowager of H. 3. (which seé in Dug­dale) who added to the Endowment of this Hospital most part of the Possessions,

which was confirmed by the subsequent Charters of E. 2. and E. 3.

2. 2 Keb. 808. Co. Lit. 8. Prin­ces Case. Against the Foundation of this Title the Defendants Counsel objected, That a Limitation of the Patronage Re­ginis succedentibus by Charter is void, for such a desultory kind of Inheritance cannot be limited but by Act of Parlia­ment, just as the Dutchy of Cornwal was by Act of Par­liament in 11 E. 3. limited to the Kings eldest Son for the time being.

Difference be­tween an Ad­vowson in esse and the Patron­age of an Hospi­tal newly createdBut Hale Chief Iustice and whole Court resolved to the contrary; for they took a difference betwéen an Advowson in Esse, and the Patronage of an Hospital newly created; for the Land or an Advowson, 'tis true, no desultory kind of Inheritance can be limited without Act of Parliament, because then he who had Right could not always know against whom to bring his Action: But of the Patro­nage of an Hospital newly founded there can be no pre­cedent Right, and therefore at the very first Institution it may be limited as the King pleases, like the Case of a Rent de novo.

Though the several Patents were produced on each side, wherein the Master of the Hospital had béen granted in Re­version, yet resolved by Hale, and the whole Court, that all [Page 215]such Grants were void: For the Master of that Hospital,Master of an Hospital, Pre­bendary, Dona­tive not granta­ble in Reversion. when he is seized in Feé in Right of the Hospital, and of an Estate in Fee simple, there can be no Reversion to grant. Therefore this Case is not to be compared to the Grant of an Office in Reversion, but is more like the Case of a Prebendary or a Donative, which cannot be granted in a Reversion.

3. Then it was objected by the Plaintiff, that the Defen­dants Grant from the Queén Dowager was void, because there was a former Grant which the Quéen Dowager made to one Mr. H Mountague who was alive at the time of the Grant to the Defendant. The Defendant shewed that the Grant to H. Mountague was void, because it was Ha­bend' post mort Sir Julius Caesar, and so a Grant in a Re­version, which was held a clear Answer.

Diversity be­tween the Grant of the Mastership of an Hospital and a Patent for Land. 4. It was resolved, That in a Patent which grants the Mastership of an Hospital, the words are not to be so pre­cisely examined as in a Patent of Land or other Office; for in this Case it is sufficient, if there be Words of No­mination only, because the Patenteé is not in by the Patent alone, but by the original Constitution upon the Foundation.

5. It was said by Hale, that though here the Question be touching the Interest of a Queen Dowager in the Patro­nage when there is no Queén Consort, yet it seemed to him that if there be a Queén Dowager and Quéen Consort both at the time of the voidance of the Hospital, the Quéen Dowager shall present.

6. If the Dowagers Grant be good, when there is a Quéen Consort, it is much more so when there is none; and if there could yet remain a scruple, the Kings Grant and Confir­mation clears it; for if there be no Consort nor Dowager doubtless the Kings Presentation is good: And this alone is sufficient to support the Defendants Title.

The Plaintiff replyed, That the Kings Presentation in such Case was good only by way of a provisional supply until a Consort come, and then was to cease.

Which all the Court denyed; for the Master by his In­cumbency gains a Feésimple, which cannot be determined by the determination of the Plaintiffs Interest; as in the Case of the Dutchy of Cornwal: If the King let the Land, the Lease is void when the Prince is born. But if he present to an Advowson, the Clerk continues.

Wherefore the Plaintiff seéing the Opinion of the Court against him, became nonsuited.

The Lord Keeper. Justice Twisden.
Susanna Holford against Holford. Febr. 9.

THIS Cause having béen formerly heard, and the Plaintiff claiming under Articles of Marriage, betweén her Father and Mother, whereby in con­sideration of a great Portion, her Father did agrée to settle the Lands in question on himself and his Wife and their Issue (whose Issue the Plaintiff is) but tho' he lived some years after, did not execute any Conveyance. And the Defendant being the Plaintiffs Fathers Brother, claimed by a Deéd of Intail made by the Plaintiffs Father ten years before the Articles (whereby for failer of Issue Male on his own Body the Lands were limited to the Defendant) It was directed to a Tryal on this Issue, Whe­ther the Déed by which the Defendant claimed, was frau­dulent or not,Trial of a Deed, whether fraudu­lent. and the Defendant to admit the Plaintiff a Purchaser, that the Fraud might come in Issue. A Tryal was had, and it was found against the Plaintiff.

A Conveyance cannot be frau­dulent against Articles without another Con­veyance be exe­cuted in a legal Course.And now for the Plaintiff it was prayed there might be a new Tryal, and that the Defendant might at such Tryal admit the Plaintiff had a Conveyance: For as it stood upon Articles the Defendants Conveyance could not be taken to be fraudulent against the Articles, nothing pas­sing in Law thereby, and yet it would be fraudulent against a Conveyance.

And therefore it was insisted, the Defendant ought to admit the Plaintiff had a Conveyance, though not such a one as to bar the Estate Tail, yet a Conveyance by way of Lease and Release;Tryal of frau­dulent Convey­ance. as if the Plaintiffs Father was seized in Fée, and then the matter of the Fraud would pro­perly come in Issue, which the Court denyed, and so dis­missed the Bill. And in the arguing of this Cause it was admitted, that every voluntary Conveyance is prima facie fraudulent against a Conveyance for Consideration.

The Lord Keeper. Chief Justice Hales. Justice Wyld Justice Windham.
Chaumond Roscarrick Esquire against Barton. February 21.

MAY 12. 10 Jacobi, Charles Roscarrick on his Mar­riage with Dorothy his Wife, settles the Lands in Question (inter alia) on himself for Life, Remainder to Dorothy for Life, Remainder to the Heirs Males of his own Body; he hath Issue Charles his first, and the Plain­tiff his second Son, and dies; Dorothy marries with one Greenvil, and they enter on the Lands in Question as the Ioynture of Dorothy.

Charles, the Son, 15 Novemb. 13 Car. 1. by Déed, Fine and Recovery for 800 l. conveys the Lands in Question to Greenvil and his Wife, to the use of Dorothy for Life, Remainder to the use of Charles and his Heirs, till he fail to pay several Sums at several days, amounting to 800 l. and after default of payment of any Sum to Green­vil and his Heirs.

Afterwards 14 Car. 1. Charles on his own Marriage setles the Lands in Question, inter alia, to himself for Life, Remainder to Margaret his Wife for Life, Remainder to his first and other Sons in Tail, Remainder to the Plain­tiff in Tail. In 1650 Greenvil assigns his Estate which was for the Security of the 800 l. and was forfeited to the Defendant by the consent of Charles. In 1656 upon a Bill exhibited by the Defendant in Chancery against Charles, It's decréed Charles shall pay the Defendant what's due to him (viz.) 1250 l. or the now Defendant, Plaintiff in that Cause, to hold against Charles and all claiming un­der him. Charles dies without Issue Male, Dorothy lives till 1668, then the now Plaintiff exhibits his Bill to re­déem, and alledges that the Decrée against Charles was by consent, and that it was agreéd between Charles and the Defendant, that notwithstanding the Decrée, it should be still a Mortgage in the Defendants hands and be redeem­able upon payment of Principal and Interest, and however that the Plaintiff being no party to that Decree, and Charles but Tenant for Life, that Decrée could not bind the Plaintiff. And as to the pretence of an Agreément be­tween Charles and the Defendant, that notwithstanding the Decrée the Estate should remain still a Mortgage in the Defendants hands, there was no proof of any such Agrée­ment or Consent, but only told Charles he would come to an account; but there being Dealings and Accounts betwéen the Defendant and Charles, it was declared by the Lord Keeper (who first heard this Cause in July 1671.)General Words cannot be ap­plied to particu­lars. An old Mort­gage assigned to another, ought to be taken as a new Mortgage from the time of the Assign­ment. that general words not particularly applyed ought not to shake a Decree; for if they did, there would be no end of Suits.

But then it was insisted for the Plaintiff, that he being no party to the Decree was not bound thereby, and that he had an Equity to redeem, and that the Mortgage was not to be taken to be more ancient than from the time of the Assignment to the Defendant, for that an Account be­ing then stated with Greenvil, and he paid off, there was no Account to be precedent to that, and so could not be taken to be elder than 1650, and that so the Plaintiff ought to be admitted to redeém, and the rather, for that the Defendant had notice (which was admitted) of the Déed 14 Car. 1. by which the Plaintiff claims before he took the Conveyance from Greenvil; and whether the Plaintiff should redéem the Lord Keeper doubted, but took time to consider.

And now 21 Feb. 1671. this Cause was finally heard be­fore the Lord Keeper, assisted with Chief Iustice Hale, Mr. Iustice Wild and Baron Wyndham.

A voluntary dis­position of an Equity of Re­demption is not to be favoured.It was insisted for the Defendant, the Plaintiff was no Party to the Déed of the Mortgage, and that the Déed of 14 Car. 1. by which the Plaintiff Chaumond claimed, howbeit it was made in consideration of Charles his Mar­riage, was to Chaumond the Plaintiff purely voluntary. And that albeit a voluntary Conveyance would pass an Equity of Redemption, yet in this Case where the Plain­tiff claims an Equity by way of Intail, it ought not to be countenanced in Equity;An Equity of Redemption in­tailed tends to make it perpe­tual. For that the consequence of it would be to make an Equity of Redemption perpetual. If a Mortgagor after a Mortgage made may make himself Tenant for Life of that Equity, with Remainder in Tail, as here, Remainder for Life, &c. which being but a Right of Action, a Right to a Bill in Equity ought not to be so intailed, and that this was not such an Inheritance as was intailed by the Statute de donis, &c. but being a Right of Action vested in the Father,An Equity of Redemption not intaiable within the Statute. with Remainder to his first and other Sons before Chaumond, there was no need to have made Chaumond Defendant to the said Decrée: And Dorothy who was the Tenant for Life lived till 1668. so that the Mortgage was all that time but of a dry Reversion, and Margaret the Wife of Charles, who lived until very lately, and who had a Title of Redemption pre­cedent to the Plaintiff, did not seék to redéem.

Wyndham was of Opinion as this Case was, that the Plaintiff ought not to be admitted to redeém.

Iudge Wyld. There is no Fraud in the Settlement 14 Car. 1. and a Decrée against Tenant for Life will not bind in the Remainder in the Case of an Estate at Law; and he did not sée why it should bind in Equity, and so he conceived the Plaintiff was relievable.

Equity on an Equity.Chief Iustice Hale. By the Growth of Equity on Equi­ty, the Heart of the Common Law is eaten out, and legal Settlements are destroyed; and was of Opinion, there is no colour for a Decrée. In 14 R. 2. the Parliament would not admit of Redemption; but now there is another setled course; as far as the Line is given, Man will go;Equity of Re­demption car­ried too far. and if an hundred years are given Man will go so far, and we know not whether we shall go. An Equity of Redemption is transferrable from one to another now, and yet at Common Law if he that had the Equity made a Feoffment, or le­vied [Page 220]a Fine, he had extinguished his Equity at Law; and it hath gone far enough already, and we will go no further than Presidents in the matter of Equity of Redemption, which hath too much favour already; and concluded there should be no Decrée for the Plaintiff in respect of the Anti­quity,Antiquity a Cause to deny Redemption. and if he will redeem, he must come in time. It is but just to foreclose for not coming in time: It's just to deny Redemption,A Decree to fore­close Tenant in Tail from re­deeming, con­cludes his Issue and the Re­mainders. if he come not in time. And a Decrée to foreclose a Tenant in Tail shall bind his Issue in an Equity of Redemption, because that is a Right set up only in a Court of Equity; and so may be here extin­guished; and the Estate moved from Charles to the Mort­gageé, and not from the Plaintiff; and Charles was the visible Possessor and Owner. And its a great sore, that Mortgageés are but Bayliffs; and the Limitation to Chau­mond was but voluntary, and so the Plaintiffs pretence is not to be supported against a Purchaser, for so a Mort­gagee is; and here its made absolute by the Decree; and if there be divers Remainders of the Equity, there is no reason to make them all Parties.

The Lord Keeper concurred with him, and said he, it goes current, that if a Mortgage be twenty years old, the Mortgagée shall have no Interest on Interest: But herein he is not satisfied, especially in this Case, where the Defen­dant could not get into possession by reason of the Estate for Life to Dorothy, A difference be­tween parties to the Mortgage coming to re­deem and Strangers. who lived till 1668. and was clear of Opinion that the Plaintiff ought not to be admitted to re­déem. And made great difference betwéen Parties that come to redeem, who are no Parties to the Mortgage, and those that are Parties to the Mortgage. And so the Bill was dismist.

The Earl of Athol in Scotland against the Earl of Derby, and the Administrator of the Countess of Derby.

JAmes Earl of Derby Tenant for Life makes a Lease for one and twenty years to his Wife of the Isle of Man, for Provision for younger Children, and dies; she agreés with the Earl of Athol on the Marriage of her younger Daughter the Lady Emilia, to give him 5000 l. Portion, and that he shall have the Isle of Man valued at 1000 l. per annum for five years to pay it. Charles Earl [Page 221]of Derby his Son, the Defendant, opposed this Lease, being made by Tenant for Life, and between Baron and Feme, but by the Mediation of certain Lords in Parlia­ment, Earl Charles and his Mother came to a new Agrée­ment in the year 1660. That she shall have the one Moiety of the Profits of the Isle, and he the other. In 1661. They came to a new Agreement, that he should in lieu of the Agreement pay his Mother 5000 l. per annum, and in the close of the Deed appoints his Receiver for the Isle of Man to pay it. All these Agreements were made by the Countess on behalf of the Earl of Athol, to enable him to receive the 5000 l. and then the Countess dyes.

It was decréed by the Master of the Rolls, That the Earl of Athol shall have his 500 l. against the Earl of Derby, and his person to be charged, and the Earl of Athol shall not be forced to the Isle of Man, which is the place origi­nally charged; for by the last Agréement he is to pay 500 l per annum absolutely, and in lieu of the Profits let the Earl of Derby make what he will of them; and the ap­pointment of the Receiver to pay it is but directory, and if the Receiver do not pay it, the Earl must.

The Isle of Man out of the power of the Court. Maynard and others of the Plaintiffs Counsel held that the Court could not by any Decrée bind the Isle of Man; nor if they should decrée it, could they execute the Decrée there, it being out of the power of any Sheriff. They also held that the Letter of Attorny being determined by the Countesses death, that the Court would not have made a Decreé for the Earl, though her Administrator is Defendant, unless in the Case of a Marriage Agréement, and that it was proved those Agreements were made on his behalf. Afterwards Sequestration was awarded against the Earl of Derby.

Whereupon a Question arose, What time of Priviledge a Péer hath (viz.) whether twenty or ten days before and after Session of Parliament?

The Lord Keeper sent to the Lord Hollis and others to advise in it, and they produced two Orders in the House of Lords,Priviledge of Peers in Parlia­ment when it commences and when it ends. whereby it appeared they declared their Priviledge to commence from the Teste to the Writ of Summons for their first coming to Parliament. And that upon every Session and Prorogation their Priviledge is for twenty days after such Session. And it is said in the Orders, that it is a sufficient time for them to come from [Page 222]all parts of the Kingdom, and to return, and are in those Orders desired to take notice of it and of the reason of it.

These Orders are, the one of the 24th of May 1624. the other of the 27th of January 1628. entred into the Iournal of the Book of the Lords House.

But it is said, the Commons never agreed hereto and therefore think themselves not bound by it.

Note, This Sequestration was executed accordingly; but the Earl of Derby soon after dying, and the Estate being intailed, the Earl of Athol lost the rest of his Wifes Portion.

The Lord Keeper Finch.
Hayes against Hayes.

A. Seised in Fée, deviseth to his Heir, on Condi­tion that he pay to the Daughter of A. 500 l. at her Age of sixtéen years, and on default, that he should enter and raise it; the Heir deviseth to his Mother for Life, and afterwards to his Brother in Fée, and dies; the Mother enters, the Daughter is under Age, and the Brother having the Reversion and Inheritance, exhibits his Bill to have the Mother pay a part of the 500 l. she having part of the Estate as Security for Life.

Tenant for Life shall contribute with the Rever­sioner toward the Arrears of a Charge or Mortgage.It was objected, that the Daughter is not of Age, and so this Bill is quia timet only; and it may be that the Mother may live till the Daughter is of sixteen, and then the Daughter may enter and raise, and so the Brother, who is the Reversioner, should not be grieved; and the Court would be vexed with vain Suits if any one might be admitted to sue only quia timet, to prevent a remote Possibility.

Suits quia timet in Law and Equity.But the Court answered, that Suits quia timet only were proper in Law and Equity: Its Law of a Warran­tia Chartae in Equity, as where A. grants a Charge of 100 l. per annum in Fee, and deviseth to B. for Life, Re­mainder to C. in Fée, and dyes, C. exhibits his Bill to compel the Tenant for Life to pay the Arrears, else all will fall on the Reversioner; and this hath béen decréed; and [Page 224]the first Cause about Contribution was between ...... and ...... where A. had mortgaged the Manor of Guil­ford for 2500 l. and then deviseth to B. for Life, the Re­mainder to C. in Fee, C. preferred his Bill to force B. to pay his Share of the Mortgage Mony, and it was decréed that he should: And there have been twenty Cases since of the like nature. So in the principal Case there being a Demurrer to this Bill for the Causes aforesaid, the De­fendant was ordered to answer; and then Sir John Churchil moved, and said for the Defendant, that she should prove that it was the intention of the Devisor here that she should pay nothing, which was not answered, but was admitted to be material.

The Lord Keeper Finch.
Butler against Bernard. February 24.

A Term aliened by an Admini­strator shall go to his Executor and not to the Administrator de bonis non.AN Administrator makes a Mortgage of the Intestates Term, and make A. his Executor, and dies; B. takes out Letters of Administration de bonis non to the first Intestate, and claims the Residuary Interest and Trust of the Term, and prays that he may have the benefit of Redemption. But the Court decréed the benefit of Re­demption to A. the Executor of the first Administrator, who had aliened the whole Estate in Law of the Term, and was not possessed in auter droit, nor of any part of the In­terest thereof, but in his own Right; and so it shall go to his Executor, and not to B. the Administrator de bonis non.

The Lord Keeper Finch.
Colonel Doyly against Perfull. October 25.

THE Wife having assigned her Term in Trust for her self before Marriage, and then the Husband without joyning with the Trustées does mortgage the Trust, and the Husband being dead, the Mortgagee being Plaintiff, exhibits his Bill to have the Lands conveyed to him, or that they should redeem; and the Court dismist the Plaintiffs Bill;The Husband cannot grant or charge the Term of the Wife in Trust. for since Queen Eliza­beths time it hath been the constant course of this Court to set aside and frustrate all Incumbrances and Acts of the Hus­band upon the Trust in the Wifes Term, and that he shall neither charge or grant it away: And tis the common way of Proceeding for the Ioyntures of Women, to con­vey a Term in Trust for them upon Marriage,Nor forfeit it for Outlawry or Felony. that it may be out of the power and reach of the Husband; nei­ther shall he forfeit it by Outlawry or Felony, if for Ioyn­ture or in pursuance of Articles of Marriage; or being the Wifes Term it is assigned before in Trust, as here, or if on other good consideration it be assigned.Aliter of As­signment after Marriage by the Husband. But if it be an Assignment after Marriage by the Husband in Trust for the Wife, this is voluntary and fraudulent against Purchasers, and this was the great Exchequer Chamber Case.

Davis against Curtis.

Nota, The Bond determined the parol Agree­ment. DAvis Executor of C. imployed as a Master of a Ship by the East-India Company, covenants with them that he should pay a certain Mulct for every Cloath carried, &c. in the Ship, and took the Defendant to be his Mate, who made an Agreément mutatis mutandis, with Davis, and gave a Bond of 50 l. for due performance on his part; but he without Davies his knowledge carried so many Cloaths as the Mulct came to 70 l. which the Company deducted out of the Masters Wages,No relief above penalty in Equi­ty. and the 50 l. Bond would not satisfie, and therefore prayed relief and discovery of the Testators Estate.

Bill to discover Assets, and does not charge that any Goods came to his Hands, ill.The Defendant demurred. 1st. The relief of more than security by Bond, not proper in Equity. 2d. That part of the Bill which stands for discovery of Assets was ill, be­cause the Charge in the Bill was not positive, that Assets, or that any Goods came to the Defendants Hands; and ruled in both Points accordingly.

Cook against Bampfield. May 19.

WIlliam Pierce Prebend of Rutland-Denham leased the Rectory of R. to Thomas Bampfield, George and Edward Bampfield, in Trust for Thomas, who conveyed his Interest to Sir R. P. but G. B. was no Party, but beyond Sea. The Prebend Lessor dyeth, Tisdel his Suc­cessor (on a Surrender to him of the former Lease pro­duced to him, but G. B. sealed it not, so that in Law it was void against G. B.) makes another Lease to Sir R. P. for threé Lives, which Lease was for divers years enjoyed till all those three Lives dyed. Tisdel being dead, Cook takes a Lease of Duncomb, who succeeded Tisdel, for 400 l. Fine. George Bampfield comes from beyond Sea, and sets on foot his Title for a third part. The Matter was by Reference put to Arbitration (the point of Trust or no Trust being before by direction tryed by a Verdict for Cook, that G. B. his Name was used in Trust for Tho.) and G. B. having by Tryal at Law recovered one third part of the Premisses, the Arbitrators awarded, that G. B. should permit Cook to enjoy the said third part, paying 16 l. yearly to G. B. during his Life. G. B. dyed; the Plaintiff exhi­bits a new Bill against Edward B. reciting the former, and prays Relief.

Duncomb dyed, Aston succèeds in the Prebendary; and before the last Bill Aston for 120 l. makes a new Lease to Edward B. for three Lives, yet in being. Edward B. was bound to Cook that G.B. should perform, which in all George his time was on all sides executed. Aston received the Rents of Cook after Duncombs death: 27 Novemb. 23 Car. 2. It was decréed that Edward and George B. should pay to Cook all the Profits received, deducting the 16 l. per an­num, and that Edward B. should assign his Lease to Cook for threé such Lives as he should name: And on a Bill of Review this Decree was confirmed by the Lord Keeper Finch 10th of May instant, Ellis and Littleton concurring.

The Objections against the Decree were, First, That the Lease of Duncomb was not good in Law, being of the whole in Possession and Reversion, when at the making thereof George B. was Tenant for Life for one third part; which was not much denied, and being avoided by Act of Parliament this Court might not supply it; and Aston [Page 228]the Successor is not bound by any Transaction of the Ac­count made in the time of his Predecessor against an Act of Parliament.Lessee of a Pre­bend mort­gageth his Lease and after the day pays the Mony, and then surrenders, and takes a Lease from the Pre­bend, he hath good Equity against the Mortgagee. If the Prebend dye, Equity shall not make the second Lease good against the Successor. Chancery can­not help in E­quity against an Act of Par­liament. And it was as free for Edward B. to deal for an Estate with Aston the Prebend as for any other Man, and that if there was any Equity to support the Lease against the Lessee or his Assigns, or against Duncomb Predecessor to Aston, that Equity should not bind Aston. Put Case the Lessee of a Prebend or Bishop should mort­gage his Lease or part of it, and after the day pay the Mony, and then surrender and take a Lease from the Pre­bend; he hath good Equity against the Mortgagee; but if the Prebend dye, this Equity shall not make the second Lease good against the Successor against the Statute which binds all Men and hath no saving of such Rights of E­quity; and the Chancellor may not add to a Statute to make a Saving which the Statute hath not made. An Infant bound by Statute of Fines should not have been helpt in Equity.

But notwithstanding the Decree was confirmed; for by the Surrender of Tho. who was Cestuy que Trust, the Lease in Equity was avoided as to the then Prebend, and therefore shall never be set on foot against a Successor. Duncomb takes 400 l. Fine and resigns when there can no more Fine be made, and Aston would now set on foot the Statute and a new Fine, which appears against the Practice.

The 2d Objection. The Purchaser from T.B. viz. R.P. took a new Lease for three Lives, whereby the Purchaser had the full benefit of his Purchase, and those new Lives being now all dead, it is no reason that Cook should set on foot the Interest of the old Lease again.

The Lord Keeper. Nor shall Aston, nor Edward B.

The Decree was confirmed.

The Mayor and Aldermen of London against the Earl of Dorset. May 30.

Examination after Publica­tion and after Hearing.UPON a Commission of Charitable Vses, The Que­stion on Appeal was, Whether certain Houses were part of Bridwel belonging to the City for Relief of the Poor, or a part of Dorset-House; which Point was re­ferred to Law to be tryed, and then to report.

A. B. moved for a Commission to examine an old Wit­ness 80 years old, who was not discovered till now, and unable to travel. If she was able to travel she would be examined at the Tryal; and tho Publication on Hearing was past, yet the Question being of Freé hold, and not properly tryable at Law, it was reason that the Testimo­ny should not be lost, and possibly the Land thereby. The Motion was opposed, because of Publication.

The Lord Keeper. The Rule of Non-examining after Publication hath béen strict in this Point; but the Court is the Iudge, and the Examiners, here or by Commission, are ministerial to the Court; so he ordered a Commission and Examination.

Burges against Burges.

THomas Burges after his intermarriage with Elizabeth Hughs his first Wife, by Lease and Release dated 24 July 1669. in consideration of his Wifes setling her Lands upon him and his Heirs (which was done by Fine) conveys divers Freehold Lands to the use of himself for life, and after his decease to the use of his Wife Elizabeth for her life, and after the determination of the said Estates, then to the use of the first Son of the said Thomas on the Body of the said Elizabeth, to be begotten, and the Heirs of the Body of such first Son; and for default of such Issue, to the use of the 2d, 3d, 4th, 5th, 6th, 7th, and every other Son and Sons of the Body of the said Thomas, on the Body of the said Elizabeth, to be begotten, successively, and the Heirs of the Body of such Son or Sons; and for default of such Issue, then if at the death of the said Tho­mas the said Elizabeth shall be enseint with Child, then to the use of Skinner and Clark, Trustees, and their Heirs, until the Birth of such after born Child or Children; and if it be a Son or Sons, then to the use of such Son and Sons, and the Heirs of the Body of such Son and Sons; and for default of such Issue, to the use and behoof of all and every the Daughter and Daughters of the said Thomas Burges, on the Body of the said Elizabeth, begotten or to be begotten, as well which shall be born, as which she the said Elizabeth shall be enseint with at the time of the death of the said Thomas, and the Heirs of the Body of such [Page 230]Daughter and Daughters, and for want of such Issue, to the use of the right Heirs of Thomas and Elizabeth for ever.

Thomas Burges being likewise possessed of other Lands by two Leases for ninety nine years,Limitation of a Term being a remote Trust, and tending to a perpetuity, void. determinable upon three lives, by an other Deed bearing date with the fore-men­tioned Deed of Settlement, for the consideration therein mentioned did assign the said Leasehold Lands to Skinner and Clark, two of the Defendants, in Trust to the several intents and purposes, and for the uses which are limited and declared of and concerning the said Lands of Inheri­tance of the said Thomas Burges in and by the said Inden­ture bearing even date with the said Deed and Assignment.

Thomas Burges had no Son by the said Elizabeth, but had one Daughter, which is now the Defendant Elizabeth, who was alive at the time of the making of the said In­denture, being 21 Dec. 1668. Thomas Burges survived, and after married Ursula a second Wife, by whom he had Issue two Sons and one Daughter, and died Intestate, and Ursula his Wife is Administratrix.

Qu. Whether the Trust of the said Leases doth belong to Elizabeth the Daughter, or the Administratrix?

After this Cause was stated, and the Lord Keeper Finch had took time to consider it, he declared that the Limita­tion (because it was a remote Trust, and tended to a per­petuity) to the Defendant Elizabeth, as Daughter of Tho­mas Burges, was a void Limitation, and on that reason de­creed the two Leases to the Plaintiff as Administratrix to Thomas Burges.

Anonymus. July 2.

Where Oath must be made of the want of a Deed, Bond, &c.IF the Bill exhibited be grounded on the loss of a Bond, Ooth must be made of such loss, because that such loss is that which intitles the Court to jurisdiction of the Cause, else the Party hath his remedy at Law. No Oath is required of loss of them, but only ut supra, where the Oath doth intitle the Court to Iurisdiction. By the Lord Keeper.

Organ against Gardiner. July 2.

An Original Bill to execute a De­cree against a Purchaser, claim­ing under parties bound thereby.AN Original Bill to execute a Decree of Lands against a Purchaser, who claimed under Parties bound by that Decree, was allowed good on Demurrer thereto, by the Lord Keeper.

Ashcombs Case. July 15.

THE Bill was exhibited by the Plaintiff, a Feme Co­vert and her Friends, against her Husband and two others, Mascal and S. The Case was, That the Plaintiff being a Dutch Woman brought 4000 l. Portion to her Hus­band, who agreed with her before Marriage to leave a compleat Maintenance for her Self and her Children, not expressing what; The Marriage took effect, but he declining in Estate, her Friends called on him; and he thereupon assigned certain Bonds, wherein M. was bound to him; and a Letter of Attorny was made after to S. to receive the Mony upon the Bonds, who received the Mony of him. The Bill was to have the Mony from M. and S.

Mascal by Plea sets forth the payment to S. and that he had no notice of the assignment of the Bonds.Plea. Notice. And this was allowed a good Plea for Mascal. But S. pleaded a Let­ter of Attorny, and payment to him on good Consideration, but did not deny notice;Assignment of Bond in Holland according to their Custom al­lowed here. and therefore his Plea disallowed, and the Agreement and Assignment of the Debt in Holland where such Agreément between Husband and Wife, and such Assignment of Bonds are good, and they are to be al­lowed here by the Lord Keeper.

Anonymus. July 15.

Sewers Ac­counts. Chan­cery will not in­termeddle with. A Bill exhibited to have an Account here of Mony col­lected by Authority of Commissioners of Sewers dis­mist by the Lord Keeper; for the Commissioners are to take the Account, and not the Chancery. Otherwise in case of Receivers by Authority in case of Commissioners of Bankrupt;Difference be­tween Commis­sioners of Sew­ers and Com­missioners of Bankrupt. for there it is concerning private Persons, but this of the Publick, and it was in vain to take Accounts in that Case in question, which the Court cannot deter­mine. And altho objected, that a discovery is proper here, yet the Bill was dismist on Demurrer.

King against Brownlow. July 21.

Witnesses for­merly examined in another Court, not to be examined here, Suit for Tithes. A Bill was exhibited in Chancery concerning Tithes and Bounds of a Parish, which proceeded to Answer and Replication. Then he exhibited another Bill in the Exchequer, and there Witnesses were examined, and now proceeds again in Chancery, and replies. The Defen­dant pleaded the Proceedings and Examination in the Exchequer, and ruled good as to examination of the same Matters, which being examined to there, were not to be examined in Chancery.

Norcliff and his Wife against Worsley.

An Intail in E­quity (not in Law) whether the Issue shall be bound by the Agreement of his Father with­out Fine.THERE was Thomas Worsly, Besail, Thomas le Ayle, Thomas le Pere and Thomas le Fitz. Thomas Great-Grandfather in consideration of 800 l. and Marriage of the Grandfather with Wood, covenants to make a Settlement of the Manor of, &c. to Thomas le Ayle and Wood, whom he was to mar­ry, for Ioynture for the Wife and the Heirs Males of Thomas by his said Wife. Thomas, the Grandfather, within one year dyed, Thomas, the Father, then in ventre sa mere.

5 Car. 1. Elizabeth, the Wife of Thomas deceased, ob­tains a Decree against the Besail for the Lands, for per­formance of the Articles both for her self and Son, Fa­ther of the now Defendant. Thomas, the Father, 1652. obtains a Decree to the effect of the former: It set out, that Thomas Besail after the Articles, and first Bill and se­cond Bill, made voluntary Conveyances of the Lands, whereby he had setled them so as the Estate in Law was now in Elizabeth and the Son of John his second Son, under power of Revocation by Deèd, and dyed after. Thomas, the Father, on Marriage with Penelope his second Wife (he [Page 235]then having Issue the Defendant Thomas by his first Wife, and inheritable to the special Intail,) agreéd (as tis al­ledged) to settle the Land on his second Wife and their Heirs by her; and pending the Suit Elizabeth conveyed away the Lands to Thomas the Defendant. Thomas the Father being dead, Penelope his Widow and her second Husband exhibits a Bill to have the Lands setled on her for her Life, viz. 300 l per annum part thereof, and to have other part thereof lyable to Debts; for Thomas, the Father of the Defendant, had so ordained by his Will in Writing. After Publication in this Cause, Thomas, the Son exhibits his Bill against Norcliff and his Wife, grounded on an Agreément by Penelope with Thomas to accept of certain Lands, part of the Lands in Question of 100 l. per annum, in lieu of Ioynture, Dower, and all Demands, which was executed seven years by enjoyment by Penelope.

Two Questions arose. 1. Whether the Agréement of Thomas, the Father, to settle the Lands, &c. on his se­cond Wife, did bind Thomas, the Son, by reason that he was entituled in Equity to an Estate Tail in the Land, and therefore should not be bound by his Fathers Agree­ment? For if the Land had béen setled in Tail, it could not bind the Issue, and the Right of an Estate Tayl is descended on him; And the Plaintiff sued for her Ioynture raised on Equity, but it is a puny Equity to Thomas the Grandchild. The Considerations are on both sides the same, viz. Marriage Agréement and Portion; only the Defendant Thomas insisted, that his Agreément by which he claims was in general Terms for Lands of 300 l. per annum, and not for Lands in Question particularly. And also if it were for some of the Lands by particular Names with Covenant that those particulars were 300 l. per an­num, if such Agréement did bind as to the particulars, yet the Covenant for the value, nor the Will did not bind the other Lands so as to have the value supplyed out of the other Lands agreéd to be entailed. And though if the Lands had béen entailed, though the Father might have cut off the Intail by Fine and Recovery, yet without Fine or Re­covery they could not; And there is no Fine, &c. nor any Attempt or Procéedings towards levying a Fine or Re­covery.

As to this Point the Lord Keéper Finch gave no reso­lution; but said, he conceived a difference in the Case, viz. Whether Penelope's Agréement was in general for Lands of 300 l. per annum, or particular; and if parti­cularly relating to the Lands in Question; Whether so much was mentioned as amounted to 300 l. per annum, or, which in effect is the same? Whether it were not for 300 l. per annum Lands, part of the Lands formerly agréed by the Great Grandfather to be intailed, or in general for 300 l. per annum Lands, without relation to the Lands ut supra, by the Great Grandfather to be entailed. And therefore there was much dispute as to the Fact in that Point.

But the Lord Keeper though he was not positive in the main Point, yet said that as to the Agreément by the Fa­ther, whether to be avoided by the Son, now Defendant, that in case the Lands had béen intailed de facto; and agreed, no Agreément could bind the Issue without Fine or Recovery or other legal Barr;Where Equity creates the Estate it shall be guided by Conscience. yet he said the Agreement to entail was not an Intail; and though it raised an E­quity against him that made it, yet that Equity is a Crea­ture of this Court to be governed as Conscience directs by this Court: And said the Statute de donis was an ambitious Act in favour of the Lords against the King; and for that vouched the Lord Elsmere. But before he had said this there were some Proposals of Agreement: And at length the Case was composed.

There was a second Point which was fully proved, that must have ended the Cause (viz.) the Agreement by Penelope, ut supra. But a Dispute arose about the Proof, Whether the Witness that proved the Agreement could be read? For the Agreement was not set forth in the Answer to Penelope's Bill, but was proved in that Cause; and it was set forth in the Bill against Penelope and her Husband, but no Proof thereof in that Cause; so it was proved in one, and set forth in another Cause. To salve which defect, the Defendant Thomas moved, and had an Order, that the Depositions in either Cause might be used in both,Depositions read in both Causes. which Order was after Publication in the first Cause, wherein the Proof was made; but before Publica­tion in the second Cause; so as the Defendant in that Cause had the advantage, having the Liberty to see what was produced against them, and had liberty to examine.

Sir John Churchil who was of Councel for the Defen­dant Thomas, yielded that they could not be read by his Client. But for my part I know no prejudice to the De­fendant, being warned by the Order, and might examine in the second Cause. But the Proposals of compounding the Cause took off all Debates.

Nota, The Defendant Norcliff had a subsequent Order, saving all Exceptions. &c.

Prat against Taylor.

THE Bill was to have an account of several Sums of Mony, which the Defendant a Fellow of Exeter-Colledge in Oxford, Tutor to the Plaintiffs Son, re­ceived towards the necessary Occasions of her Son.

The Chancellor of Oxford by Instrument in Writing set forth the Priviledge of the Vniversity. Charters, and Confirmation, &c. by Act of Parliament: And the De­fendant was a Scholar, and Resident, and that they had a Court of Equity, and prayed that Taylor might be dismist.

A Scholar of the University sued, the Chancellor puts in his claim of Priviledge by Writing, disal­lowed.The Lord Keeper did not allow the Claim, and said, that Cognizance of Pleas in Equity could not be grant­ed, though Presidents were shewn of the same Claim al­lowed in time of Queen Elizabeth. He asked if any could be shewn in the Lord Elsmere or Coventries time; but none could be shewn. And thereupon disallowed the Claim, saying it must be put in by way of Plea. But withal de­clared it should not be on Oath, but it should be sufficient to aver the Defendant a Scholar, Resident, &c. without Oath; and so he said it should be in case of Outlawry pleaded, the Defendant should not be put to aver the Plea on Oath, but without Oath.

Bluet a Dane against Bampfield and others, Mer­chants of Denmark.

Bill dismist by Sentence given against the Plain­tiff in the Court at Denmark,TO be relieved against Actions of Trespass, for seising their Goods in the Island of, &c. on the pretence of breaking an Inhibition of the King of Denmark, where­as by Articles of Alliance, between the Crown of England [Page 238]and Denmark, free Trade was allowed to all English in all Ports of the Kingdom of Denmark, whereof the Island was a Port. But in regard Sentence was given in the Court there for the Plaintiff on the Seizure, the Bill was dismist.

Anonymus. November 5.

Contempt dis­charged by a ge­neral Pardon.PRocess issued till Proclamation was returned. Then came the General Pardon.

The Defendant appeared and demurred.

The Plaintiff moved to set aside the Demurrer; for tho the contempt was pardoned, yet the delay was no less to the Plaintiff.

The Lord Keeper. As to the Contempt, the Defendant stands rectus in Curia, and consequently all Contempts are likewise pardoned. Therefore proceed on Demurrer.

Anonymus. November 5.

A Rule, that if a second Answer be insufficient, Process shall go on where it was before.THE Lord Keeper declared for a Rule, That if after Process of Contempt the Defendant put in an insufficient Answer, and so reported, the Plaintiff should not as formerly begin with Process at the Subpoena, but should go on to the Attachment with Proclamation and other Process, as if the Answer had not been put in.

Cox against Quantock. November 19.

A Devise to two Executors of re­sid. bonorum, one of them dies, the Administrator sues the survi­ving Executor for an Account. A D [...] to two Legac [...] equal, if it survives.THE Testator had two Executors, and deviseth to them residuum bonorum, &c. after the Debts and Legacies paid; one of them died, his Administrator sued the surviving Executor to have Moiety of the Surplusage.

The Cause came to a Hearing. The Defendant insisted that the Executors were joint Devisees, and took the residue as Legatees, not as joint Executors.

The Lord Keeper decreed for the Plaintiff, for in case of Executors the Testator intended an equal share to his Executors; and by Chief Iustice Rolls Advice it was de­creed, That where a Devise was to two equally, notwith­standing [Page 239]which word Equally, the Devisees were joint; yet the intention prevents the Survivorship.

The Cause was disputed; but to the dissatisfaction of the Bar decreed. For where the intention is secret and not declared, the secret intent must give way to the legal in­tent. And if an Administrator, then an Administrator de bonis non must have it, 19 November 1674.

Chalfont against Okes. November 21.

Contingent Re­mainder of a Term. A Termor Grants the Estate in Trust for himself for life, and after for his Wife for life, and after to their Child or Children for their lives, and after to J. S. and whether the Trust to J. S. were good, the Lord Keeper took tim to advise, and now delivered his Opinion that it was good. But if it had been to the Heirs of their Bodies, it had not been a good Trust after such Limitation to any other. He said, that in this and the like Cases the Chancery altred the Law; for at Common Law till Weldons Case in Plow. Commentaries Iudgment was given against the Limita­tion, by Devise for a Term to one for life, the Remain­der to another, and so over. But the Chancery decreed these Limitations good. But if it be in such manner as to make a Perpetuity, that may neither be in Law nor Chancery.

Negus against Fettiplace. November 21.

Bond to pay an agreement, and agreement to indempnifie him, relievied against the Bond without pay­ment. FEttiplace, Tenant for life of a Rectory in the Right of his Wife, demiseth the same to the Plaintiff for twenty one years, at 100 l. Rent, payable at Lady-day and Michaelmas; a fortnight before Michaelmas the Wife died; The Tenant sent to Fettiplace notice thereof; Fet­tiplace and the Plaintiff came to an Agreement; on which Negus gave Bond to Fettiplace to pay 80 l. (Michaelmas Rent) to Fettiplace, and Fettiplace agreed to save him harmless against all others for that Rent, and now sues to be relieved against the Bond, because no Rent was due, and no consideration for the Bond; and had a De­cree against the Bond, though Mr. Attorny objected, and prest it, that there was no Fraud, and the whole truth was known, and it was in foro Conscientiae. And the Tenant [Page 240]having taken all the Summer Profits, should pay for them, at least in proportion.

Cary against Appleton. November 26.

1. THE Husband deviseth the Iewels which were Parapharnalia of his Wife, and died. Decreed to the Wife.

2. The Husband devised his Goods to be sold for raising of Portions to be paid to his Daughters at their Ages of eighteen or Marriage, and that the same be raised out of his Rents, Issues and Profits of his Lease Lands, if the Goods were not sufficient, and the rest after Sale and Profits of the Goods and Leases,Raise out of Profits implies a Sale. Bertue and Stile 28 Jan. 27 Car. 2. in Cancell. as aforesaid, to other uses. One Sister was paid, the other comes of Age, the Goods were not sufficient. The dispute was, Whether the Leases might be sold? For upon these Cases they are not to be sold, the Rents and Profits are liable.

The Lord Keeper. In the Lord Cornburys Case it was decreed, That the devise of Profits gave power to sell; otherwise if it be of the Annual Profits. A devise of the Profits, is a devise of the Land; and the Father did as much intend a provision for his Daughters as for his Son. And I take the difference where the devise is of the Profits of a Chattel Lease, and where of Lands, as in this Case. For if he had not directed a Sale, the Leases had been liable to the Portions, and so the affirmative words shall not bar a negative sense to exclude the sale of the Lease Lands.

Bokenham against Bokenham. December 4.

Conveyance by Tenant in Tail supplied. EDmund Bokenham, the Plaintiffs Great Grandfather, made a Settlement of divers Lands and Mannors, inter al. Stockmash, which Estates descended to Sir Henry his Son, in Tail. Sir Henry in consideration of a Mar­riage to be had between Wiseman his Son and Grace Davies, makes a Deed of Feoffment, to the use of himself for life, the Remainder to Wiseman for life, the Remain­der to the first, second, and other Sons by Grace. This Deed is indorsed generally (Livery made to J. S. ap­pointed [Page 241]by Paul Dawes the Feoffee thereto,) The Mar­riage takes effect, Wiseman and Grace have Issue Henry Walsingham, Paul the Plaintiff, and Hugh the Defendant, and six other Sons. Sir Henry after levies a Fine to Wal­singham then his eldest Son; and this was to the use of Sir Henry and his Heirs. Walsingham dies, and he con­veys the Mannor and Seigniory to the Defendant, the fourth Son of Stockmash only, and dies. The Defen­dant enters, supposing that Livery was not well given, be­cause the Letter of Attorny to take Livery was lost, as he supposed.

Letter of Attor­ny and Livery supplied in E­quity.Lord Keeper decreed, 1st. That the Letter of Attorny should be supplied, and Livery admitted; though it was objected, that this was in effect to decree a Discontinuance, which is a Wrong and an unlawful Act, and that it was,

2d. To assist a Remainder Man in Tail in a third Re­mainder (for he was the third Son) against a legal Fine of his Father, Tenant in Tail, and whose Fine was a Bar to him in Law. And also against the acceptance of the Fine by Wilsingham, who joined with Sir Henry, who had power by the Recovery to have barred the Estate of the Plaintiff.

But to this last the Lord Keeper said, The Grandfather might have the Conveyance made by himself in his own Hand; and its apparently so, for he recites in that Deed that he was Tenant in Tail, and he recites not the Feoff­ment made by himself.

Crofts against Wortley. December 9.

Former Bill de­pending, yet an­swer the second Bill. A Former Bill depending was pleaded in bar of a se­cond: But though both Bills were of the same mat­ter and effect, the later had some new matter.

Ordered, That being the Plea was good, the Plaintiff should pay the usual Costs of a Plea allowed. But the Defendant to answer the second Bill, and the former Bill dismist with 20 s. Costs.

Anonymus.

1. Sequestration against the Heir.2. Purchasors with power to revoke.3. Not against a Voluntary Con­veyance,THere was a Decree for 5000 l. on Account against the Father in Execution, whereof the Process was carried to a Sequestration of the Lands, which the Father had at the time of the Decree, and setled on debate on the [Page 242]Heir of the Father, though he also made Title thereto by Conveyance made to the Father.

The Question grew, Whether the Conveyance was re­vokable, or not? For if it were revokable the Lord Kéeper would kéep on the Sequestration, though the Decrée was not for Lands, but for Personal Duty. And on producing several Conveyances, the Case was, That before the Suit, about 1663. the Father setled the Lands voluntarily on himself for life, the Remainder to his Son, with Re­mainder over; Provided he might by Déed revoke those Vses; but it was now farther insisted, (viz.) there was not express Power to limit other or new Vses, but only to revoke. Afterwards and before the Decreé or Bill, the Father revokes the former Vses, and by the same Deed limits an Estate to his Son; In which second Deed there is no power of Revocation; but though it was voluntary and for natural Affection, was absolute.

Limitation of new Uses good, the express power being only to revoke.The Question was, If the Limitation of new Vses was good, the express Power in the first Deéd being only to revoke.

The Lord Keéper declared his Opinion clearly that it was, and therefore discharged the Sequestration.

Sir James Bellingham and Sir Henry Allen against Elizabeth Lowther, ........ Agnes, Sir John Wentworth. 14 January 1674.

9 Jac. SIR James setled certain Freéhold Lands in Westmorland, to the use of himself for life, the Remainder to Henry his Son, and the Heirs Males of his Body, the Remainder to Allen his second Son, and the Heirs Males of his Body, the Remainder to his own Heirs; and covenanted to settle Copyhold Lands in the same manner, and died 10 Jan. The Freéhold was setled, but non constat the Copyhold were, but Sir Henry surrendred to the use of him and his sequel.

1649. Sir Henry having suffered a Recovery of the Freéhold, Covenants with Willoughby, &c. to settle the Freéhold Lands on himself for life, the Remainder of part to Katherine his Wife for part of her Iointure, the Remainder to the Heirs Males of himself by Katherine; the Remainder to the Heirs Males of his Body, the Remainder to Allen, and the Heirs Males of the Body of Allen, the Remainder to the Heirs of Sir Henry, and covenanted with the same Persons to settle the Copy­hold [Page 244]by Surrender to himself for life, the Remainder to Katharine in full of her Iointure, the Remainder to the Heirs Males of Sir Henry by Katharine, the Remainder to the Heirs Males of Sir Henry, the Remainder to Allen and the Heirs Males of his Body.

Sir Henry Bellingham coming to make a Surrender of the Copyhold, fell sick by the way, but made a Letter of Attorny to others to do it, but died before it was done. The Fréehold Lands remained to Sir James the Son, and the Heirs Male of Allen now exhibited their Bill against Thomas Lowther and John Wentworth, to whom the Copyhold Lands descended as Heirs general for want of Surrender. The scope of this Bill was to have Assurances of the Copyhold, and to be relieved against Actions at Law.

There were divers matters in the Bill, but this was the effect and substance of the Case upon the Plea. And it was said that this Covenant was but voluntary as to Allen, because he was no party to the Covenant, nor within the consideration of the Marriage or Portion. And it might be fraudulent as to Allen, and yet be good as to Katharine, Deed fraudulent as to one, and good as to an­other. and the Issues of the Marriage, as it was in Sir John Jacobs Case. And if one make a voluntary Conveyance to a younger Son, the same shall not be made good in Equity against the Heir at Law, if it be a volun­tary Conveyance, and defective in Law; and if it had been executed by Surrender in the principal Case, yet Sir Henry might have cut it off by the Recovery.

The Answer to these Objections endeavoured and offer­ed was. 1st. That Sir Henry here expresly intended to preserve the Name and Male of his Family before his Daughters, though they should happen to be his Heirs; for he limits the Estate to his own Heirs Males, and immediately after to Allen, and his Heirs Males, which was likewise done by Sir James his Father, and that was consideration enough, (viz.) not only his Name, but his Blood as his Brother was; and the maintenance of his Name in his Blood was not only a good consideration, but such as prevailed with old Sir James and Sir Henry above the affection of the Heirs general: And the conside­ration of the Deéds of Covenant is not only the Marriage of Katharine, but continuing the Lands in his Name and Blood. And the Covenant binds Henry and his Heirs; and though the Covenant be with others, and not with Allen, yet the Covenant is obliging to the Heir, and puts [Page 245]a tie and obligation on Sir Henry and his Heirs,Difference be­tween a Cove­nant to settle Lands, and a vo­luntary Con­veyance. and so differs from a voluntary Conveyance without Execution; for there is no tie in that Case, no Man at all is bound by it: It is meerly void, and so is not this Covenant. And though it be true, that if the Surrender had been made, and thereby Henry Tenant in Tail, with Remain­der to Allen, yet he might by Recovery have barred the Remainder; yet unless he had made some attempt that way, his intent and covenant stands still good, and differs from Worsleys Case fol. for there was an act and endea­vour to cut it off, but no such here.

Lord Keeper. Can the Plaintiffs amend your Case on proof:

Churchil, They cannot; for we admit the whole Bill.

Lord Keéper. If Sir Henry had had another Son by a former Wife, you could have no relief against him on this Covenant, which as to the Plaintiff is meérly volun­tary, and matter of kindness. And if Sir Henry and Allen were both in life, Allen could not inforce Sir Henry to execute the Covenant; yet Katharine might; for it were to decree that to be done by Henry, which Henry might undo the next day; and so it was resolved in Hockleys Case, the younger Brother goes away with 1500 l. per annum, and the Heir general has but 200 l. per annum, Copyhold. And for the reasons given dismist the Bill 14 Jan. 1674.

Holloway against Collins. February 6.

A Childs Lega­cy paid to the Father, who fail­ed, the payment decreed. A Legacy of 125 l. was given to the Plaintiff being but ten years old, and at that age was paid to the Plaintiffs Father, who after died insolvent, the Infant at full age sued the Executor of the Devisor for the 125 l.

The Lord Keeper held it good payment: But was prest very much by the Attorny General of the ill consequence; for the Law must be the same if it were 1000 l. and extends to other Cases of like nature, not to Legacies only.

Lord Keeper, What should the Executors do?

Attorny General. May take security to repay it to the In­sant, or sued to have it paid.

Lord Reéper. It may be so where Legacy will bear the charge of Suit, but not else, and delivered his Opinion accordingly. But the Defendant being put to prove the [Page 246]payment, did prove likewise that the Executor took a Bond, which the Court prest the Defendant to shew. Where­upon the Sollicitor in the Cause said he had it not, but would produce it by the next day. But said it was a Bond to the Executor to save him harmless.

Lord Keéper. Then he paid the security at his own peril.

Churchil desired time to shew the Bond till the next day, for we may not trust the Iudgment what the same is. It may be it is to pay his Infant at his age.

Lord Keéper. I shall believe the worst, unless you shew the Bond, and therefore decreed the Executor to pay it.

Hole against Harrison. February 17. Et e contra.

Three bound in a Recognizance, one is sued and paid the whole, another is insol­vent, the third is sued for con­tribution, he shall contribute a moiety and not a third part. HOle, Harrison and S. were bound in a Recognizance to the Chamberlain of London. The Plaintiff Harrison was sued thereon, and paid the whole Mony, and now sued Hole, who was bound with him for Contribu­tion. Hole, Harrison and S. being all bound, and J. S. was dead insolvent, and S. was run away. The question was in what proportion the Contribution should be (viz.) of a third or moiety? Decreed a moiety, for S. is in­solvent.

Sir ..... Holland and his Wife against Blandy. February 17.

THE Wife endowable of two Mannors in Surry and Stratton in the County of Wilts, which consist­ed of Copyholds, is endowed by Indenture of the Heirs of the Mannors in the County of Surry, and by parol Agrée­ment was to have a third part of the Rents and Profits of Stratton, and the Rents were accordingly paid to her in proportion for thirty years and more. The Copyholders purchase the Inheritance of their respective Copyholds in 1647. and shall pay their Rents in proportion, during the ancient lives of the Copyholders they purchased for Mony, the lives being dead on which the Copyholds depended, the Plaintiff sued for the third part of the improved value. The Defendants pretend that they had no notice of the [Page 247]Agréement, and being Purchasers without notice were not to be obliged thereby.

The Plaintiffs insist that they had notice, and so the payment of the proportion of the Rents proved, and it was publickly notified at the Courts of the Manor, and divers of the Tenants had abatement in their Purchase, though the Defendants denyed they had any.

At the Rolls the Plaintiff had a Decrée for the Rents and Improvements.

The Widow of the Lord decreed to be endowed of the third part of the improved values of the Co­pyhold, but re­versed by the Lord Keeper as to that. Act of the Co­pyholder not to hinder the Lords Wife of Dower.The Lord Keeper on Appeal reversed the Decrée as to the improved values, and confirmed it as to the Rents, and left the Plaintiffs to take their course for their Fines, for which there was an Agreement; but as he said there was none for the third part of the improved values. And it was then prest the Defendant must have paid Fines, if they had not purchased the Fée, and by their Purchase the Plaintiff, who but for this Agreément could have had Dower of the Lands, the Copyhold being determined, and the Act of the Copyholders shall not keep the Plaintiff from Dower and hinder her from Fines. And therefore it was prayed that some course might be taken in that.

The Lord Kéeper. I leave you to your Course.

Jacob against Thatcher. February 17.

Purchaser with­out notice not protected.THE Plaintiff had a Ioynture made by her Husband of Lands subject to a Iudgment, which Thatcher purchased in, and did extend the Iudgment, and took a Lease from the Husband, who dyed.

Decreed that Thatcher shall not hold over by the Lease, since the Profits taken after the Extent were enough to satisfie the Iudgment according to the true value, nor shall hold over by the Extent after the extended value to pro­tect his Lease, although in truth he did purchase the Lease for valuable consideration, tho also he had taken a Lease first and for valuable consideration and without notice of the Ioyn­ture, and then had bought in and extended the Iudgment, he might protect his Lease thereof. But Sir John Jacob and he (viz.) Thatcher, when the Extent is laid on, and in a way of satisfaction by the true value, shall not turn the Debt on the Ioyntress. The Extent it seems was re­turned and filed, but Thatcher entred not but by a Lease subsequent.

Hixon against Wytham.

CLement Wytham seized in Fée, made a Writing in this form, This Indenture made the day of, &c. be­tween Clement Wytham of, &c. of the one part, and James Orbel of, &c. William Skinner of, &c. of the other part: Whereas there are divers Debts owing to Clement Wytham, and having an intention not only to raise Portions for his younger Children, but also to raise Mony for the payment of his Debts, although his personal Estate come not in: Now the said Clement Wytham in consideration of 5 l. doth grant, bargain and sell to the said James Orbel and William Skinner all those Lands, &c. mentioning the Lands, but not Estate, on Trust to sell after his decease, the Mony raised by Sale to be imployed as follows, and named di­vers persons to receive several Sums, and the rest of my said Mony, and my Plate, and other my personal Estate of me the said Clement, (and here in this part changeth the person, and speaks in the first and not in the third per­son) I give and bequeath in manner following, and ap­points to several persons several Sums, and then addeth, I hereby name the said James Orbel and William Skinner my Executors to the Uses aforesaid.

1st. It was questioned, whether this was a Will or not, being made in the form of an Indenture, and as above: But the Defendants deserted that Point, and yielded that it was a Will, and the Lord Keeper accordingly.

2d. The Plaintiffs are Creditors of Clement the Te­stator, and sued to be satisfied out of the Trust, they not being named, and on his Sale, if the particular Legatées be paid,Lands devised for payment of Legacies, made subject to Debts. little or nothing will be kept; and there is no Clause in the Will that his Debts should be paid: But on the other side the Words having an intention not only to provide Portions, &c. but also to pay his Debts, &c. and making his Executors to the Use aforesaid, refer to the whole.

The Lord Keeper pronounced this Decrée, That the Plaintiffs Creditors should be paid before the Legacies, and not only in proportion, but before them; for a Man may not give but what is his own; but what he hath ultra, est alienum. Therefore the Legacies shall come into the Trust after the Debts. But a Debt without Specialty, is as­much [Page 249]as a Debt Jure naturali, Debts on simple Contract to be paid in propor­tion with Debts by Specialty where Lands are devised, &c. Whether Debts and Legacies are to be paid equal­ly, where Lands devised for pay­ment of both. and in Conscience as a Debt by Specialty, and therefore there shall be an Equa­lity with Debts by Specialty where Conscience is the Iudge. But the Lord Keéper being urged, that the Presidents of the Court had béen otherwise (viz.) that when Lands are to be sold for payment of Debts and Legacies by Trustées, the Legacies were in equal degrée with Debts, unless it were such Debts as charged the Lands; and the reason is, because only the Will of the Owner makes the Land lya­ble, and gives no preferment to the one before the other. Thereupon the Lord Keeper gave time to present Presi­dents to him.

Leech against Leech. February 27.

Where there is a Devise over of the Portion the Court can allow no Maintenance out of it; other­wise, if no De­vise over.THE Bill was by Trustées to give and direct them in divers Trusts, and to protect them executing the same, which the Court now did (viz.) the Father made a Lease in Trust with reference to his Will, and thereby devised to several of his Daughters 500 l. to each, to be paid at one and twenty years or Marriage, and if any or all dyed before, then to others. The Daughters had no other Por­tion, nor no Maintenance, and direction was prayed by the Trustees, whether they might allow the Daughters Main­tenance.

The Lord Kéeper. No: Because of the Devise over; else it might have béen done.

If a Trust be for payment of Debts, it may support a Con­veyance, other­wise void. 2. The Father Tenant pur auter vie made a Lease for 99 years, as was pretended, but was to A. and B. and their Heirs, habendum for 99 years, which Mr. Attorny prest was void, and then the Trust annexed to the Lease is void.

The Lord Keéper. The Trust is for payment of Debts and that shall support the Trust.Trust for pay­ment of Debts generally good against an Heir though no Cre­ditor party. But not so against a Purehaser.

3. A Trust for payment of Debts generally is good against an Heir, though no Creditor be Party to the Déed, nor Debt expressed in particular, nor Covenant in the Lease to pay.

But the Lord Keeper said, he would not maintain it against a Purchaser.

Whorewood against Whorewood. Febr. 22.

IN the late times of the great Troubles, the Com­missioners of the Great Seal, as they were then called, had Iurisdiction given them in the Case of Alimony betwéen Mr. Whorewood and his Wife.A Decree for A­limony quousque Cohabitation. The Husband exhibits a Bill, and offers to co­habit. A Decree was made that Mr. Whorewood should pay 300 l. per annum to his Wife till they co-habited, and during their separation, and as­surances to be made for payment thereof, with Condition to be void in Case of Reconciliation and Cohabitation; but the assurances were made without these Conditions. Mr. Whorewood for six years paid not the 300 l. per an­num. The Decreé was confirmed by the general Act touch­ing Iudicial Procéedings.Note, This in a time of the Com­missioners who had this Juris­diction especially given. Mr. Whorewood did not rest there, but exhibited a Bill of Review, and thereon the Decrée affirmed, for the Bill was dismiss. Further strug­ling was by Mr. Whorewood, and References, and now he exhibits this Bill that the 300 l. per annum might cease, because he offered to be reconciled, and desired to co-habit with her, and use her as his Wife.

The Lord Keeper was assisted now by Chief Iustice North and Iustice Rainsford.

On the Defendants part it was said, that the Act being made when there was a Suspension of Ecclesiastical Iu­risdictions, the same was conferred to the Commissloners who were to act according to the Laws Ecclesiastick, and so ought this Court now to do; and it cannot be conceived when there is a Separation and allowance of Alimony quousque, &c. that a single declaration of the Husband without consent of the Wise should frée him from Alimo­ny, for then he might so declare and avoid the Sentence the next day: But it must be by her Consent, or on clear proof that it is méer wilfulness in her, and that the fear she had was justly removed, which in this Case appears by her Oath not to be. And she had great cause to be in fear by sixteen years strugling against the Sentence, and his Exasperation by her Prosecution of him, and the Dis­mission of his Bill of Review had now foreclosed him to sue for Relief by way of Original Bill: And the Decree is for 300 l. per annum till Co-habitation by Consent, which Cohabitation must be by mutual Consent.

Absolute Con­veyances guided by Decree that directed them.Resolved 1st. That though the Assurances were abso­lute without the Conditions or Limitations quousque, &c. yet the Deéds being in performance of the Decrée (for so it was expressed in the Déeds) yet they should be ruled and guided by the Decrée.

Where a Decree is temporary or for special ends an original Bill lies to put a pe­riod to it.2. That an Original Bill was proper in this Case, not­withstanding the Bill of Reviw dismist (viz.) the Court is invested with the same Iurisdiction which the Ecclesi­astical Court had, and when a Decreé is temporary and for special ends, an Original Bill lyeth to put a period to it, and to shew the purposes of the Decrée satisfied.

3. That the Court could not discharge the Arrears. Iustice Rainsford was of Opinion,The Decree to pay till cohabit, and now the Husband offers to cohabit, the Court cannot in this Case dis­charge Arrears. No Alimony can be decreed, but by Consent, un­less first a Decree for Separation. That neither the wilful­ness of the Wife, nor pretences of kindness, or desires or Co-habitation should prevail either way, and therefore that a Tryal should be made, and she to be ordered to cohabit for half a year or the like, to sée what would be; and the Decreé of Alimony to be suspended, and after ordered or sus­pended, as there should be occasion.

North. The Decreé hath no force but from the Con­sent of the Parties, else the Ecclesiastical Court could not decrée Alimony, as this Case is; for if they had de­creed a Separation then they might also decreé Alimony, but not Alimony alone saving pro expensis litis. But here is no Sentence of Separation, and therefore the Husband in this Case may sue his Wife ad obsequia debita in the Ecclesiastical Court, or sue those that detained his Wife at the Common Law notwithstanding the Decree here.

The Lord Kéeper. I cannot decrée a Separation. I shall not continue the Alimony to the Wife, if she will not cohabit, nor decrée the Wife to cohabit; but shall not dis­charge the Alimony or Sentence, but keep it in suspence. But the Wife shall return to her Husband, who shall main­tain and use her as a Gentleman and a good Husband ought to do, wherein if he fails, I will hear the Wifes Complaint with favour, and lay on the Decrée again, as Cause shall be; but now suspend, it saving to her the Ar­rears. But she shall immediately return, and if not, she shall have no benefit of the Alimony till she do so, but take her remedy in the Court Ecclesiastical.

Erswick against Bond. February 22.

A Covenant to secure the Pur­chaser by other Lands not de­creed.ERswick and his Wife seized in the Right of his Wife, conveyed the Lands to the use of himself for life, with power to make Leases, and sold the Lands; and to secure the Purchaser against such Leases, as might have been made, took a Covenant against the Vendor that within two years he would convey other Lands to that intent; the two years being past and no collateral assurance made, next Term after the two years expired the Purchaser ex­hibits his Bill to have collateral Security according to the Covenant.

Diversity be­tween Cove­nants for fur­ther assurance and collateral Security.The Lord Kéeper dismiss the Bill, and takes a difference betwéen Covenants for further Assurance of the Lands sold, and collateral Security of other Lands to incumber the Estate; and the two years being elapsed dismist the Bill; Ex relatione Sir John Churchil of the Plaintiffs side.

Williams against Williams. February 23.

A new Bill after Dimission on Hearing on Sug­gestion of notice which was not in Issue in the former Cause.A Former Bill was exhibited, thereby to set up an Agréement to charge the Defendants Lands. To which the Defendant set forth that he was a Purchaser for va­luable consideration; and Issue being joyned thereon, the Defendant proved his Case, and the Bill was dismist; and now a new Bill on the same Equity was exhibited; but now charges the Defendant that at the time of his Purchase he had notice of the Plaintiffs Equity (viz.) an Agréement, &c. it not being charged in the former Bill, and that the Defendant had notice, nor by the Defendant set forth that he had no notice, nor Examination to that point. The Procéedings in the former Cause were pleaded in Bar; for this Course will make Suits endless, and no Man will charge notice in the like Case, but try upon one Point first,Notice not de­nied, yet in Is­sue and not proved after Hearing, may have Defendants Oath on a new Bill. (viz) Purchaser or no: But the Plaintiff should before Hearing have exhibited the Bill he doth now, but now it is too late.

The Lord Keeper over-ruled the Plea, with this fur­ther Declaration, that the Dfendants Answer should not conclude the Plaintiff; but though he denyed notice, yet [Page 253]the Plaintiff should examine thereto. He said also that in case Examination should be made of notice, and no proof of it, if the notice had been denyed in the former Suit, yet the Plaintiffs Bill to have the Defendants Oath would lie, but then the Defendants Oath should not be conclusive.

Maynard against Moseley.

SIR Edward Mosely conveyed Lands to the Vse of Thomas Leigh Esquire, &c. and their Heirs on Trust to raise 3000 l. for Mary (his only Daughter) and if he should have more than one Daughter, then 2000 l. a-piece. He had Ann a second Daughter and dyed: Ann dyed young and intestate, Sir Edward, Brother of Ann and Mary survi­ving Ann; afterwards Mary marrying unto Joseph Maynard, Edward the Brother gave 5000 l. with her, and 7000 l. more he agréed to pay on Contingencies: Joseph releaseth to Edward the Brother all Demands and Portions which he may claim in Right of his Wife, except the 5000 l. and 7000 l. and other particulars. Young Sir Edward dyes without Issue, and devises his Lands to Moseley the De­fendant, and by such death of Sir Edward the 7000 l. grew due. Mary takes Administration of her Sister Ann and sues for the 2000 l. and also the 4000 l. There were other Circumstances of the Agreément by Sir John Maynard, Fa­ther of Joseph, which induced the Court to dismiss the Bill as to the 4000 l. for the Lease for fifteén years, whereout the 4000 secured was in Joseph Maynard in Right of his Wife; but as to the 2000 l. my Lord Chief Iustice Hales and Vaughan agreéd that it belonged to Mary as Admini­stratrix, and the Agréement did not discharge it, for if a Stranger had taken Administration he should not be bar­red, &c.

The Lord Kéeper gave Reasons for his differing in Opi­nion from the Iudges, but decreéd the 2000 l. according to the Opinion of the Iudges.

This was a Bill of Review brought by Joseph and Mary against a Decrée made by the Lord Keeper Bridgman; and to which Bill of Review Moseley demurred, and his De­murrer overruled by the Lord Chancellor the Earl of Shafts­bury, who was assisted by Iudges. The Cause was heard ab integro by the Lord Finch, assisted by the two Chief Iu­stices, ut supra, and decréed ut supra.

Another part of the Case was decréed against Joseph Maynard and his Wife, and was (viz.) Articles of Agrée­ment were made betwéen Sir Edward Moseley and his Wife, Thomas Leigh, &c. Freinds of Sir Edward Moseley, one for him, the other two Trustees for the Lady, by which on Sir Edwards part, and on his behalf some Lands in Lin­colnshire were to be sold for payment of his Debts and An­nuities to be paid the Lady for Maintenance of her Chil­dren, and 400 l. per annum to the Lady for her separate Maintenance and Ioynture, of 5000 l. per annum out of se­veral of the Lands for the Ioynture of the Lady after Sir Edward Moseleys death, and the Lady being seized in Fee of the Lands of 300 l. per annum in Derbyshire. It was agreed that the same should be setled, and that after her death it should remain or descend to the said Sir Edward, and the Issue between him and his Lady begotten and to be be­gotten, the Remainder to the Lady and her Heirs in such sort as she shall not have power to alien from his and her Issue.

And after within the year an Indenture was made and sealed by Sir Edward and the Lady and his Trustees, whereby it was agreed, that Fines should be levied of all the Premisses, and the Vse for sole separate Maintenance, Annuities and Portions for Children and Ioynture ap­pointed according to the said Articles; and for the Derby­shire Lands the Vse was to be to Sir Edward for his life, Remainder to the Lady for her life, Remainder to Sir Edward the Son for life, with Remainders to the first, second, third, &c. and other Sons of Edward the Son, and the Heirs Males of their bodies, Remainder to the Daughters of Sir Edward, and his Lady in Tayl.

Afterwards cross Suits arose in Chancery, the Ladies Trustees Plaintiffs on the Lady's behalf against Sir Ed­ward, and Sir Edward Plaintiff against them, in which the Annuities and separate Maintenance are decreed, and that Fines should be levyed according to the Articles and subsequent Deeds, and inrolled; but though the Lady had formerly joyned in Fines as well of the Manchester Lands out of which the separate Maintenance as to 100 l part thereof was setled; as to the Lands to be sold for Debts no Fine was levyed by the Lady of the Derbyshire Lands nor of the Staffordshire Ioynture Lands by Sir Edw. but after the Decree the separate Maintenance and Annuities were paid while Sir Edward lived, saving about 200 l. of the Annui­ties which were arrear at his death. And whereas no par­ticular [Page 255]Lands were appointed by the first Articles for a Ioyn­ture, by the next Deed Manchester 100 l. per annum, and the Staffordshire Lands were limited to the Lady for her Ioynture.

Sir Edward being dead, the Lady entred into the Staf­fordshire Lands and Manchester Rents, and held them whilst she lived, and received the Arrears of the Annuities.

Heir at Law by Marriage A­greement be­came a Purcha­ser in Equity, and not lyable to pay Debts of his Ancestor.After her death Sir Edward Moseley, Son and Heir of Sir Edward and the Lady were sued by the Creditors of the Lady, to whom she had bound her and her Heirs in Bonds to discover Assets of his Mothers Estate, particularly the Derbyshire Lands.

To which by Answer he set forth the Agreements, Deeds and Decree, and that thereby he was a Purchaser in Equity for his life, with Remainder, &c. and not lyable to the Debts of his Mother as her Heir; and the Creditors proceeded no further. After which Sir Edward the Son mortgaged those Derbyshire Lands, and after devised them inter alia to Edward Moseley the Defendant.

Feme though not bound by her Agreement during Cover­ture, yet acting according to the Agreement when a Widow, is bound by it. Joseph Maynard and his Wife were Plaintiffs for the Derbyshire Lands, Ann the Sister being dead without Is­sue; and prayed to have Recompence for the Alienation against Edward Mosely Devisee, the Executor of Sir Edward Moseley the younger, upon the Equity. But although the Lady was not bound by her Agreement made during Co­verture, yet when after the death of her Husband she re­ceived the Arrears according to the Agreements and De­cree, and enjoyed the Staffordshire Ioynture according to the last Deed, she was now bound by what she did being a Widow, and Sir Edward survived having on his Oath claymed those Grounds as Purchaser, and not as Heir to his Mother, and thereby freed himself from the Debts of his Mother, he might not if he had been sued by his Sister have claimed other Estate, and consequently his Trustee could not, and therefore the Sister ought to have the power to and in the Deed, and satisfaction for what it should cost her to redeem, he having devised his Lands for satisfaction of his Debts, Legacies and Engagements. But the Bill of the Sister was dismist by the Lord Chancellor Finch, Hales and Vaughan Chief Iustices concurring. It was on Construction of the first Articles.

Papilion against Hix.
On a Plea.

HIX a Tinner in Cornwal articled with Papilion to sell and deliver to him sixtéen Tun of Tyn frée from all Customs and Duties, part of the price paid, the rest secured to be paid. Hix after the Tin was seized, for that the Coynage had not béen paid, which by the Custom of the Stan­naries is a Forfeiture in case that the Tyn be sold before Coynage paid or secured; and because the Forfeiture was by Hix, Papilion sued him to be relieved, he having cove­nanted to deliver it Custom frée.

The Tinner ar­ticles to deliver Tin to the Mer­chant Custom free; after de­livery it is seized for Custom, and the Merchant sues to be re­lieved, but is not, for it is in frau­dem Regis.The Lord Chancellor dismist the Bill. I will break this Trade between the Tinners and the Merchants; for by this Trade the King is cozened and the Coynage Duty sel­dom answered. The Tinner pays no Duty, selling to the Merchant in small Ingots; and if it chance to be taken, he affirms he did first pay the Coynage, and then puts it into small pieces easy to hide and transport: And if he be spied, pretends he coyned it, having first coyned two or three Slabs, and all the rest he transports and sells in little pieces by colour of Coyning one or two Slabs. I will break this Trade.

The Lord Keeper Finch. Chamberlain against Chamberlain and others.

THE Case was, That Thomas Chamberlain Esq; be­ing possessed of Leases of 3000 years, and owing several great Debts, made his Will, and made his Wife Elizabeth his Executrix, who proved the Will, and paid the Debt as far as the Chattels Personal or Stock would reach, but no farther: And there being yet Debts unpaid above the value of the Leases, she assents to a Bequest of the said Leases made by the said John Chamberlain in his said Will, (viz.) to the said Elizabeth for her life, and after to John Chamberlain the eldest Son of the said John Chamberlain for his life, and after to the first Son of the [Page 257]said John Chamberlain the Son, and the Heirs Males of the first Son, after which assent Elizabeth dies and leaves Mr. Croft her Executor, who came to Articles with the Plain­tiff to sell the said Leases to the Plaintiff for 900 l. Where­upon the Plaintiff exhibits his Bill against the Defendant John Chamberlain the Son, and Thomas Chamberlain the first Son of the said John Chamberlain the Son, and Mr. Croft the Executor. And now the question was, Whe­ther Debts being unpaid at the time of the said assent, and nothing liable to make good the said Debts saving the said Leases, the Leases might be Assets in the Hands of Mr. Croft, so that he might sell them to answer the said Debts, notwithstanding the said assent; Or whether the said bequest of the Leases were vested in the Remainder, according to the said devise by the assent, and could not be devested by the sale of Croft the Executor.