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REPORTS
o F
CASES
\
ARGUED AND DETERMINED
3n tlft ji^ijjl^ Court af Cfiancer^,
IN THE TIMB OF
Lord Chancellor HARDWICKE.
I BY
JOHN TRACY jtTKTNS,
Of Lincoln's Inn, Efq.
CuRsiTOR Baron of the Exchequer.
TheTHIRD E D I T I O N, revifcd and coijrcaed ;
With Notes, and References to Former and Modern
Determinations, and to the Register*s Books,
By FRANCIS W I L L I A M S S A N D E R S,
Of Lincoln's Inn, Efq. Author of An Essay on the Law of Uses and Trusts.
INT THREE VOLUMES* VOL. IIL
LONDON:
printed by a. strahan and w. woodfall,
I. AW-FR INTERS TO THE rilfC's MOST EXCELLENT MAJESTY;
B. AND R. BROOKE, J. BUTTERWORTH, T. CADELL JUN. AND W. DAVIS, A. STRAHAN, T. N. LONGMAN, W. OTRIDGE, T.PAYNE, R. PHENEY^ F. AND C. RIVINGTON, G. G. AND J. ROBINSON, W. CLARKE AND SON, S. HAYES, W. RICHARDSON, AND OGILVY AND SPEARE.
if
•:
B
E
• O F T H E
. NAMES of the CASES;
Alphabetically difpofed, in fuch an Order, as that the Case« may be found by the Names either of the Plaintiffs or DcfendantSf
iV. B. Where verfus follows the firft Name, it is that of the Plaintiff; where and^ it is the Name of the Defendant.
A
DLINGTON V. Cann.
Page 141 225 453
481
270,
618, 726,
Aggas V. Pickerill. Allington and Boteler. Alvares and Franco. Androvin v. Poinblanc. Anaefly, ex parte. Anonymous. 17, 70, 2I9> 2353 277> 3^^» 35^' 485, 511, 524* 530> 5^7> 575t> 602, ^33» 644* 090, 691, '6p4, 750, 809. Afli arid Lord Townfliend. 336
Afhcnhurft v. James, 270
Afhley and Harvey. 607
Afhiey v. Pocock 208
Aflihurft V. Eyres. 341
Aflon V. Afton. 302
Atkins fl^^ Shields " 561
Attorney General v. Price, 1 08
Attorney General v, Milner. 1 1 2
Attorney General v. Sir John Lock,
164
Attorney General v. Lloyd. 551
Attorney General v. Parker. 576 Attorney General v. Talbot* 662 Attorney General v. Bowles. io6 "^OL. UL
Auling and Newman. Page 579
Aykwell and Sit Edward Smith, 56b
B.
Baily and Snellgrove. Baker v. Harf. Baldwin V. Mackown. Bali a!id others and Carte. Bampton ^.v/rfWinne, Do£lor. Bancc and Hcams. Banks v. Denfliaw. Barber and Hearne. Barbut and Tilbury, Barker and Gafcoigne. Barley v, Pearfon. Barncflcy v, Powell. Barnfley, ex parte^ Barret v. Gore. Barry and Leigh.
Bafh V. Dalway. Baffctt V. Baffett. Bathurll and Pack, Beard v. Beard, Beafcly /i/;JWilford. Bell V. Read. Bennett and Rofewell. Benfon v, Gibfon. Benfon and Qreendde. Aa
214
542 817 496
473 630
585
213
617
8
439'
593 i68j 184
401
583 530
203
269
72
533 590
77
39T Bcnluu
501
STABLE of the Names of the Cnfes.
Catcott, ex parte. Caverley v, Dudley. Chandos Duke of and Lyon, Church AW// Bifhop, Clarke and Flanders, Clarke v. Sewell. Colegrave v. Jufon. Collier /j/;^/ Elliot. Collins and Sherman. Coiifet and Toomes. Conway and Staplcton. Cooke and Gwyn, Cooke and Sibley. Cooke and Smith. Coomef V. Elling.' Corbet and Powis. Corbet and Snelfon, Cotton and Garth. Coulfon V. White. C\jwper and Stiles. Cox and Harding. Cox and Lee. Crabtree v. Bramble. Crefly and Hildyard. Crew and Furnival. Crichton v. Symes, Crook atid Hawkins. Croxall, exporter
D. '
Dalway and Bafli. Darley v. Darlcy. Darley and Rattray. Deacon v. Smith. De Grey v. Richardfon. Demurrers and Pleas. Den (haw /i/;^/ Banks. Dethick.^2/;^ Stevens. Dobbins v. Bowman. Done V. Peacock. Dormer and Ekins. Dormer v. Fortefcuc. Doughty and Blount. Dove and Bridgeman. Drakcford v. "Wilks. Draper and Buck. Dudley and Caverley. Dufficld /!« J Forward. Durllon a;/J Brown.
|
Bcnfon and Pain. |
Page 78 |
|
Berney v. Eyre. |
387 |
|
Bicknell v. Gough. |
558 |
|
Billingfley V.Wills. |
219 |
|
Bingham and Seamer. |
54 |
|
Bingham and Wheeler. |
364 |
|
Birch V. Holt. |
726 |
|
Birchell, ex parte. |
813 |
|
Birkhead /i/;J Wortley. |
809 |
|
Biftiop V. Church. |
691 |
|
Bloome and Jefus College. |
262 |
|
Blount V. Blount. |
636 |
|
Blount V. Doughty. |
481 |
|
Blower and Lampley. |
396 |
|
Blower v. Morretts. |
772 |
|
Boehm and Trafford. |
440 |
|
Bond V. Simmons. |
20 |
|
Boteler v. Allington. |
'453 |
|
Bowes, ex parte. |
164 |
|
Bowles and Attorney General. 806 |
|
|
Bowman and Dobbins. |
408 |
|
Bradley and Bulilrode. |
582 |
|
Bramble «/;rf Crabtree. |
680 |
|
Brand and Framlingham. |
390 |
|
Brertton /7;/JPearfon. |
71 |
|
Brett V. Forcer. |
403 |
|
Bridgeman v. Dove. |
201 |
|
Briggs and Lacon. |
IOC |
|
Brookfbank v. Sir William W^nt- |
|
|
worth. |
64 |
|
Brown V. Durfton. |
631 |
|
Brown and Johnfon. |
I |
|
Brown v. Martin. |
218 |
|
Buck V. Draper. |
631 |
|
Bulkeley/2;/JGagc. |
215 |
|
Bulftrodev. Bradley. |
582 |
|
Burdon v, Kennedy. |
739 |
|
Butler V. Butler. |
58 |
|
Butler ?;• Raflifield. |
740 |
|
Buxton V. Lifter. |
383 |
|
C. Callaghan v. Rochfort. |
643 |
|
Can V. Read. |
695 |
|
Cann and Adlington. |
141 |
|
Car V. EUifon. |
73 |
|
Carte v. Ball. |
496 |
|
Carte v. Carte. |
174 |
|
Caftlcdon v. Turner. |
. 257 |
Page 814 541 416 691 5C9
96 197
319
261
727 689
572
378
676
556
369
75»
21
692
583 419 680
303 83 61
59+
. 639
530 399 724
3*3
469
17,70
585 39 408 726 .
534 124 481 .
201
539 631 54*
AT K'B Lie, of the Names of the Cafes*
Ejgell V. Haywocxl Page 352
£d«rards and Hume. 45O} 693
Edwards v, Lewis. 538
Edwards, ex parte. 5 1 9
Ekin V. Pigot. 298
Ekins V. Dormer. ' 534
EUing and Coomes. ^76
ElFiot V. Collier. 516
EUifonfl/irfCar. 73
Elton V. Elton. 504
Evans a«rf Lucas. 260
Evelyn v. Evelyn. 762
Ewer /iwrf Rofs. 156
Exceptions to Anfwers. J 9
Eyre and Bcmcy, 387
EyrcSfl/iJAfliurft, 341
F.
Fanlhaw and Rotheram. 628
Farrantv. Lovel. 723
Flanders v. Clarke. S®9
Floyd V. Nangle. 568 Fonnereau v. Fonnereau. 3 ' S> ^45
Forcer and Brett. 4^3
Fortefcue and Dormer. 124
Forward v, Dufl5cld. 555
Fofter V. VaflaU. 587
Fotherby v. Pate. 603 Framlingham v. Brand. , 390
Franco v. Alvares.' 34^
Freeman and Parfons. 74 ^
Furnival v. Crew. 83
' G.
Gage V. Bulkeley. ^15
Gannell and Rofc. 439
Garth V. Cotton, 75^
Gafcoignc xu Barker. 8
Gibfon and Benfon. 395
Gibfon and Turvin. 7 20
Gillv.Watfon. 53t2
Glafs and Jerningham. 4® 9
Godfrey v. Watfon. 5 1 7
Goodwin V. Goodwin. 370
Gore /i/yrf Barrett. 4^'
Goring v. Nalh. 1 86
Gough and Bickncll. 558
Graham v. Londonderry. 393
Grcenbank xind Hearle. - 095
Greenfide v- Benfon. Greefe and Richardfon. Gregory v. Molefworth. GrUlith aWLioyd, Grove i/WPcarce, Gualtier/i/z^Rico. Guidot V. Guidot. Gwyn and Cooke. Gyles V. Wilcocks.
H.
Page 24?
626
264
i^^
501
^S4 689
269
721
4»S 303 24?
798
5«3 304 722 542 271 19s 44 607
5^4
594 815
524 634
Hall V. HaU.
Hammond v. Myers*
Hankey v. Simplbn,
Hatdcaftle v. Smithfon.
Hardcaflle and Sparrow.
Harding v. Cox.
Hardinghani ^, Nicholis.
Harris v* Harn .
Hart and Baker.
Hart V. Middlehurft.
Harley and Pringle. *
Hartopv. Hoare.
Harvey v. Afliley.
Harwood and Skip.
Hawkey and Striblcy.
Hawkins v. Crook.
Hawley v. Taylor.
Haws V, Haws.
Hay v. Hay.
Hay wjrJ fl/j^AVcAvers Company. 3O2
Fiay wood aftd Edgell. 352
Head V. Head. 295, 5 1 1, 547
Head and M arfli. 720
Heams v. Bance. 630
Hearle v, Greenbank, 695
Hearn v. Barber. 2 1 3
Heath V. Perry. 10 1
Hell (in the matter of) alunatick. 635
Hellier, ex parte. 798
Hicks V. Hicks. 274
Hildyard v. Crcfly. 303
Hoare and Hartop. 44
Hogan a lunatick (in the matter of).
813 Holt /?/yrf Birch. 726
Honey and Lawley. 278
Honeywood v. Selwin. 276
Hooper fl«rf Lawley . ay 8
Hoflkins and Woodhoufe. 22
A 3 Huey
A Table of the Natnes cf the CaftS.
Mucy and Skip. Hume V. Edwards.
J.
. Jackfon and Madox. James and Alhenhurft. JcJflreys v. Jeffreys. Jerningham v* Glafs. Jefus College v. Bloome. Incledo;! v. Northcote. Johnfon v. Brown. Johnfon and Worfeley. Johnfon, ex parte. Jones V, Jones. Joynes v. Statham. Jufon and Colegravo.
K.
Kemp V. Mackrcll. Kennedy and Burden. King V. Mariflall.. Knight V. Lord Plymouth.
Page (^l
406 270 120 409
262
1
761
753, 559
no, Z17
388 137
812
739 ig2
480
Lovell and Farrant. Lov/field and Town fend. Lowther v. Stamper. Lloyd V, Griiiith. Lloyd and Attorney general. Lucas V. Evans. Lunatick petitions, ex parte Roberts.
5,308 liydlard <?/;// Stirlinc:. 199
Lyon V. Duke of Chandos. 4 1 6
Pagej22
496 264
551 260
L.
Lacon v. Mertins. J
Lacon V. Briggs. 105
Lampley V. Blower. 396
Lawley v. Hooper, 278
Lawton V* Lawtofl. • 13
Lee and William. 223
Lee V. Cox. 4»9
Leefon and Nicholls. 573
Leigh V. Barry. ^ 583
' Le Neve and Norrls. 26, 8.2
Lc Neve V. Le Neve. 646 Lcthieullier v. Tracy. 728, 774> 784
Lewis and Edwards- 538
Lewis and Taylor. 727
Lifter and Buxton. 383
Litcot and Webb. 25
JMtlCj ex ptirte. " 479
Litton and Robinfon. 209 Lock (Sir John) and Attorney* general.
164
Londonderry and Grah?im. 393
London (City of ) v. NaQu 5 1 2
Longfellow and Williams. , 582
Lovell V. LoYcUf H
Mabank v. Metcalf. Mackenzie v. Robinfon. Mackrell and Kemp. Macknown and Baldwip. Madox V. Jackfon. Maire, ex parte. Maitland v. Wilfon. March V. Head. MarifTal and King. Marfhall ^W Wicks. Martin ajul Brown. Martin and Rcyniflu -Mathews, ex parte. May and Talbot.
Maynard and Marquis of Powis.
Maynard«y. Pomfret.
Maynwaring v. Maynwaring.
Mead V. Ix)rd Orrery.
Mendes v. Mendcs.
Mertins and Lacon.
Metcalf a7id Mabank.
Middlehurft and Hart.
Millar and Stamper.
Milner and Attorney general.
Mitchell V. Smart.
Molcfworth and G regory.
Morretts and Blower.
Moore v. Moore.
Moore and Pollexfen.
Moxom ^jrw/Sibthorpe.
JMyres and Hammond.
Nangle and Floyd. Naih and City of London. Nafli and Goring.. i Neve V. Neve*
9? 559 812
817
406
479 812 720 192 400 218
330 817
5'9 468
413
23s
619
I
95
37' 212 112 606 626
77^ 402
272
580
415
568 512 186 645 Ncvc
A Tab LK'of the Names of the Cafes.
Ncvc V. Wefton. Page 557
Newman v. Auling. 579
Nicholls ^/^JHardingham* 304
NichoUs V. Lcefon. 573
Nonis V. Lc Neve. 26, 82
Northcote and Inclcdon. 430
O.
Only V. Walker. 407
Orrery (Lord) and Mead. 235 Orrery (Lord) and Sheffield. 282
Owen and Parry. 740
P.
Pack V. Bathurfl. 269
Packhurft and Smith. 1 35
Packington (Sir Herbert). 2 1 5
Pain V. Benfon. 78
Pain and Ridout. 486
Palling ^iw^Steadman. 423 Parker and Attorney general. 576
Parry v. Owen. 740
Parfons v. Freeman. 741
Pate^jw/ZFotherby. 603
Peacock and Done. 726
Pearce v. Grove. 522
Pearly v. Smith. 260
Pear fon and Barley. 439.
Pearfon v. Brereton. 71
Peat rt/j^/ Tictenfon. - 529
Perrot v. Perrot. 94
Perry and Heath. I'O i
Peterfon and iVaMh. 193
Petre V. Petrc. 511 Phillips V. Phillips alias Muilment.
391
Phipps /I W Tucker.
PickeriU and Aggas. Pigot and Ekin. Pitt V. Snowden. Pleas and Demurrers. Plymouth (Lord) o^/^/ Knight Pocock and A (lily. Poinblanc and Androvin. Pollexfen v. Moore. Pomfret and Maynard. Pott V, Reynolds. Potter V. Potter. Powell and Bamefley«
359
22<? S98 750
480 208
299 272 468
719
593
Powis v. Corbctt. Page 556
Powis (Marquis of) v. Maynard. 519
Powis (Marquis of) Price and Attorney general Price (in the matter of) Pringlc V. Hartley. Punter and Stagg. Pyncent v. Pyncent.
R.
Radford V. Wilfon. Raflificld a«rfButler# Rattray v. Darley. Raven ^«rfS wanton. Read and Bell. Read and Can. Reyni(h v. Martin. Reynolds and Poit. Ricards, ex parte, Richardfon and De Grey, Richardfon v. Grccfe. Rico V. Gualtier. Ridout v» Pain. Rigden v. Vallier. Roberts, ex parte. Rbbinfon v. Litton. Robinfon and Mackende. Robinfon v. Robinfon. Rochford and Callaghan. Roome v. Roome. Rofe V. Ganncll. Rofewell v. Bennett. Rofs V. Ewer. Rotheram v. Fan(haw«
S.
Sanfom ^z;;^/ White. Scarborough (Earl of) and
Seamar v, Bingham. Selwin and Honey wood. Se well ^//^ Clarke. Seymour v. Trefilian. Sheffield V, Lord Orrery. Sherman v. Collins. Sherrard v. Sherrard. Shields v. Atkins. Shirley v. Watts. Sibley v. Cook.
A4
297 108
6o2
195 119
SSh Sl^
8iJ
740 724. 105 590 695 330 5^5 518 469
65 501
486
731
S»3o8
209
559
736
643
181
439
77
156
6z8
4tO
Worfley.
392
54
96
358
282
3^9
. 50* 560 200
^.^ 572 Sibthorp
/F
'41
€
fi
B
E
•OF THE
. NAMES of the CASES;
Alphabetically difpofed, in fuch an Order, as that the Cases may be found by the Names cither of the PlaintifFs or Defendants,
N. B. Where ver/us follows the firfl: Name, it Is that of the PlaintifFj wher« and, it is the Name of the Defendant.
A
DLINGTON V.
Aggas V. PickerilL AUington arirl Botelcr, Alvares and Franco. Androvin v. Poinblanc. Anaefly, ex parte.
Cann. Page 141 225 45-3 3+^
2(^9
481
35^' 485, 511, 521, 567, 572, 602, O90, 691/6^4,
618, 7261
Anonymous 277> 3^^>
^33» 644,
750, 809. Afli and Lord Townfhend. Afhcnhurft v. James. AOiley and Harvey. Alhley v. Pocock Aflihurft V. Eyres. Ailon V. Afton. Atkins 0/7^ Shields Attorney General v. Price. Attorney General v. Milncr. Attorney General v. Sir John Lock.
164 Attorney General v. Lloyd. Attorney General v. Parker.
I Attorney General v. Talbot. Attorney General v. Bowles. Vox.. III.
33^ 270
607
208
34' 302
561 108 112
55*
576
662
8o5
Auling and Newman. P^gf ST 9
AykweIl«//rfSir Edward Smith. 56b
B.
Baily nnd Snellgrove. Baker v. Harf. Baldwin V. Mackown. Bali and others ^W Carte. Bampton /7;;£^Winne, Dodtor. Bance nnd Hcams. Banks v. Denfliaw. Barber and Hearne. Barbut a:/d Tiibury. Barker and Gafcoigne. Barley v, Pearfon. B.irncflcy v, Powell. Barnfley, rx parte. Barret v. Gore. Barry and Leigh. Ball) V" Dalway. BalTctt V. Baflett. Bathurft and Pack. Beard v. Beard, Beafcly fl/;JWilford. Bell V. Read. Bennett and RofewelK Benfon v. Gibfon. Benfon and Qreenfi(ie.
214
542 817
496
473 630
585 213 617 . 8
439-
593
168, 184
401
583 530
203
269 72
590
77
39<:
t K D E Z of titfes reftrred to hy the Notes.
Attorney general v. Hyde. Page 8o3 Attorney general v. Nafli. ih.
Attorney general v. Meyrick. Attorney general v. CaldwclU Atwood and Kettleby. Avelyn v. Ward. Aykwell v. Smith. Aylctt V. Dodd. Aylelbury's (Lady) Cafe* Aylelbury and Popham. 437 Aylefworth and Uftier. AyloflT/i/iJ Stoit* Ayliff V. Murray. Aylesford's Cafe.
B.
Babington v. Greenwood. 453
IVacon V. Briant. 5^6
Baden v. Pembroke. 254
Buillie and Afliley. 655^.248
Baiiiton v. Ward. 269 BaiiifTs and Burgeflcs of Burford v.
ib.
ih.
188
317 363 396
437
7*3 > 72
36 3
|
Lenthall. |
6;?5 |
|
Bailis V. Gale. |
480 |
|
Baker and Smith. |
75,182 |
|
Ball v. Montgomery. |
551 |
Baltimore and Penn. 27^, 3C9, 5S9
Ballett V. Spranger. - ^ 20 *
Ball and Carte. ^ 198, 534
Bale and Manlove. 4
Bamfield v. Popham. 739
Banks v. Denflure. 1 o
Barnard V. Large. 2;
Barker ^7;;rf Rudge. 80
Barnardifton and Carter. ix i Barnes and Attorney general. 1 50
Barnard /i/w/Sprange. J 56
Barkef-flm/Suretecs. i()X
B.^niardifton and Lingocd. 278
Barncfley, <'A:/)^/r/^. ' 7,
Barley and Cruifei 427
Barber //wt/Hearn. 450, 528
Barlow and Collins. 479
Barry v. Edge worth. 41^6
Barker v. Giles. 524
Baron «//i French. 518, 25
Birker v. Zouch. 749
•B ifiett V. Chapman, 23
Batten v. Earnley. 579
Bates and Glover. 6 1 2
Bates V. Dandy. 435, 533,61;?
Bayl:;v and Davis. 758
Baylis V. Attorney general. Page 2^^ Bayntun and Perkins. ^4 Beard v. Bcatd. 748, 803 Bcauchamp v. Silvcrlock. 480 Beachcroft v. Bcachcroft. ^ 486 Beauclerk v. Dormer. 44^ Beard v. Travers. 304 Beauclerk v. Mead. 254 Beane and Ithell. i 88 Beafley and Fiflier. J54. Beckford v. Tobin. 102 Beckford v. Clofe. 226 Beckwiih and Ibbetfon. 486 Bedford (Corporation of) and Attor- ney general. 109 Beech and Taylor. o Bella mont and ConiK)r. 726 Bclchier, r.v y)r/rA'. 480, 584 Ikll iind S ;itham. 317 Ik: I chirr v. Green. 102 Bellafis V. Uthwatt. 65, 419, 77, 98,
183
Bcnnct ^•. Wade. 17
Boniiyon v. Maddlfon. 57, 427
Iknnct V. Whiahead. 130
Bcnnet V. Davis. 390
Bererlcy v, Beverley. 8 1 5
Bewick v. Vv'hitficld. ISS^ 95
Bickcrilalr'rtW Chicheflcr. 680
Bickoi (ton afui Rider. 4 80
Bidduiph V. Biddulph. 587
Bigglelton ^'. Gruhb. 77
Billingflcy ^;/// VViiliji. 57
Billliigfley V. Critchet. Co
Billon V. Hyde. 401
Bindon and Sweetapple. 254
Bindon V. Suffolk. 524
Bingham /?;;// Seamer. 221
BIfbitch a?id Day. 16
Bifhop V, Church. 89
Blake and Shrapnell. • 89
Bland V. Hafcling. 107
Blakcviay v, Strafford. 107
Blackburn v. Grcgfon. 273
Blackman^w^Wyth. 347
Blandy v. Widmore. 419
Blew and Mar (hall. 3^g
Bli;ih V. Darnlcy. 594
Blight*////^ Loveacres. 486
Blower v. Moretts. 812
Blount V. Burrow. 214
Bloome and Jefus College. 38 1
Bluck
IsDZX cf Cifes referred to by the Notes
Bluck V. Nicholls. Boehm v. Trafford. Bolton V. Bridgcwater. Bolton V, Dean. Bonny v. Ridgcird. Bonithorne v. Hockmorc, Banifoas u. Rybot. Bond V, Simmone. Booth and Walmfley, Booth and Cooke, * Booth and Trclawney. Bookey and Randal. Boteler v. Allington. Botterill) tx pjrU* Boulton and Roc^' Bovey t/. Smith. Boulron ami Williams. Bowes t^i Shrcwfbury. Bowes, ex parte. Bowes iitnd Stratlinaorc, Bower v. Swadlin. Boycot V. Cotton. Boynton t;. Parthufft". Bradley and Garforth, Brand and Fr^mlingham. Bramble and Crabtree. Brachen and Tunftall. Brandlyn v. Ord, Braddiaw and Adiburnham. Bradiih v. Cee. Bradford v. Foley. Brereton v. Gamul. Breary v. Rounddl, Brewer and Aplyn. Brightwell and Carlcton. Bridge ^', Abbot. Brid;r^vater v^ Egcrton* Bridges V. Berc. Bridges and Tilley. Brockhurft and Whitbread. Brown and Andrews. Brown V. Higdcn. Brown v. Cutler. Brown rt/7//Piddock, Brown and Hope. Brown and Delorain. Brown V, Barkham. Btooke V. Galley. Brookr; and Hertford. Bromley v, Gooderc. Broughton and Wharam. 3rudeneU v* Boughcon.
Pa^e 44
^680
486
130
235 S18 520 726 520 89
2^54* 114 226 260 816
486
563
95
680
559 217
93 112,320
438
89
193
254, 446
319,322
377
55'
680
3^7 141
3^3 584
592
573 347 323 130
3
107
217
3*7
401
486
558 722
484 626
5»7 594 748
129,
52O;
Bubb and Abraham. Buckingham Ihirc v. Drury. Budder v* Rolfc. Buffir V, Bradford. Bullock and Coke. Burgravc v. Whitwick. Burrlll V. Kemp. Burk and Fitzgerald. Burleton v. Humphreys. Burnell and Foley. Burilem and Vaughan. Burrows and Morris. 436,
Burton tf. Knight. Bufley and Hodgfon. 282, Butcher v. Stapley. Butcher and Simfon. Butler V. Butler. 102,
Butler and Toplis. Butler V. Duncombe.
PageiiQ 612
399
397
748
83
»93 304 331 347 347 453t,S27»
529 396, 449
3
692
678, 399
581
3i9>72^
Caldwell and Attorney General. 808
Capper v.llarris. Carrol and Edwards. Carew and Afkew. Carter v* BarniirdiRon. Carte v. Carte. I'jb^
102,
'99.
-^98, 254>
384
38 105
141
748
534
3^3
27»
392 392, 648
. 592 748 15J
273
278
Carte v. Ball. Carlisle and Lcchmerc. Carpenter and Searle. Carpenter and Sorrell. Carlton ^WLowtlier Carlton v- Dri:>Ivfwel!. Cafborne v. Scarfc. CafTon v. Dade. Cator V. Pembroke. Cave v. Cave. Caverley v. Dudley. Cay and Willats. Chall' IK Caiborne. Chamberlain and Newt. Chapman v. Smitli. Chaloner and Horllcy. Chapman v. Hart. 43'
Cluiijiusj^ a fid 1 albot. Ciiamberlrtrn v. Knap. 302.
Chambcrbln -:'. Chamberlain. Ch:ipm.in V, Tanner. Chancey v. Fenhoulet. Chambtrlaine v. Dummer. Chapman «;/J Hill.
2 Qiapm
709 630 592
499 4«o >63 427 5«^ 271
273
2CO 217
I K D F. X of Cafes referred to the Notes.
Chapman v. Gibfon. Chaplin v, Chaplin, €ha worth v. Hooper. Chapman and Somerville. Chapman v. Salt. Chapman ami BafTet. Chandos and Lyon. ' Chcclcs V, Stapleton. Cheefeman v. Partridge, Child and Irnham. Chichcftcr v. Bickerftaffl Churchill V. Hobfon. Churchwardens of St,
Smith. Church and Lonfdale. Church and Bifhop. Churchill and Worlidgc.
645> 112.
Clarke and Van.
Clarke and Rofs.
Qark and Weftley.
Clark and Kynaflon.
Claverden and Webb.
Clare Hall and Attorney General. 165
Page 1S2
119
102
89
77
23
41
645. 427
358
278
680
584
Saviour's v.
S>6
a74 89
78 320
319 584 46.;
387
Clay and Smith. Clerk 1^. Wright, Clitherow and Allanfon CUfFord and Probert. Clofe and Beckford. Clowberry and Lampen. Cloberrie's cafe. Clough a?id Jones. Cockerill and Gray. Coke V. Bullock. Coke and Wilcocks. Cole and S to well. Coleman v. Winch. Collins V. Metcalf. Colegravc v. Jewfon. Cole V. Rawlinfon. ♦ Collins and BarJow. Collier and Elliot. Collins V. GrifRth. Colt V. Netterville. Collett V. Collet. Collins and Sherman. Coleman v. Seymour. Cbmpton and Farmer. Compton and Lillcott. Commcrford and Lucas. Connor v. Bellamont. Condon and Lowther. Cooke's cafe. Cookfon and Whclpdale.
254>414:
3»9
38
504
739
438 226
427 645
151
727
748 814 692 660
64s 500 486
479 450
406
384
447 114
102
33» 370 5«S 726
16 36
Coomes v. ElHng. Cookfon and EWKon. Cooke V. Booth. Coombe and Hawkins. Cooper V. Douglas. Cook V, Martin. Cooke and Smith. Cook and Sibley.
Coppin V.
Coppin V. Femyhough. Cope and Stanhope. Cordwell v, Mackrill. Corbet and Snelfon. Corbet v. Made we 11. Corbet v. Palmer. Corbet and Powis. Coryton and Smith. Cotter v. Layer. Cotton and Scarth. Cotton and Boycott. Cotton and Garth. Coventry and Hay. Cowne and Legallick. Cox and Hale. Cox and Jory. Cox and Sheldon. Crabtree v. Bramble. Craddock and Lake. Crane and Deane Cray v. Willis. Crawley and Hodgworth. Creagh v. Wilfon. Creed v. Colville. Critclurtt fl;/JBillingfly. Crinfoz, ex parte. Crofs V. Addcnbroke. Croft V. Pyke. Crufe V. Barley. Cudd V. R utter. Culling v. Tuffnall. Gumming jw^Robinfon. Cunningham v. Moody. Cunliffc ^wrfShawe. Curtis V. Curtis. Cutter aw J Brown.
D.
Dade and CaiTon. Dailey v. Delbouverie.
Dandy and Bates. Darlcy v. Darley. Darwin and RuflHl. Darnley and Bli^« ' 3
Page 60
77
89
102
105
132
263. 57» 582 726
176, 180 278
395 419
427 630, 659 529 260 119 112, 320
95 739 107
427
S20> 559
655
254.446
73S 107 612
575 368
119
60 816 294
96 427 384
16
579
254. 4^7 loz
13c, 131
317
151
33*
435> 533» 613 60
89
. 59+ Darlington
'erred to the Notet,
Coomes v. Elling. Cookfon a/K/£Ilifon. Cooke V. Booth. Coombe and Hawkins. Cooper V. Douglas. Cook V. Martin. Cooke and Smith. Cook and Sibley.
Coppin V. ■
Coppin V. Femyhough. Cope and Stanliope. Cordwell v. Mackrill. Corbet and Snelfon. Corbet v. Madcwcll. Corbet v. Palmer. Corbet aWPowis. Coryton and Smith. Cotter V. Layer. Cotton <i»^Scarth. Cotton W Boycott. Cotton and Garth. Coventry and Hay. Cowne^«^Leg^ft^^^- Cox and Hale. Cox and lojT Co^WSheWon
Crabtree v. Bramo Craddock^«^LaLe.
Crane .WDff«
CuUing "• Sitob.nfo«- Cumin'Og/^^. Moody.
C»"V^t Curtis.
Cotter <»'«'
1'.
Pagtha
77 89
102 105 131
263,571 581 716
176, 180 J78
m
395 4>9
4»7
630, 659
529
:6o
119
n2>3»<'
95
739
107
4J7
5 JO, 559
655
«S4»44* 735 107 6H
575 368
119
- 60
8i6
J?4
4^7
384
j6
J54.447
10*
13c, '3' 3'7
Index of Cafes ref
pail^^y ^' ^ Bates- Pandy fparler.
Darlington WPultncy.
Davis 0. Baillic. Da?isfl«rfOwen. Davis flw^ Bennett. Davidfon tf«</ Robinfon, Davy and Kemp. Dawfon v. Dawfon. Dawfon V. Killet. Dawkra and Pitt. Day V. Bifbitch. Dcanc v. Crane. Dean v. Wade. Deanc fl«rf Bolton. DeCofta WMellifli. Dec and SncU. Dehew and Saunders. Deloraine v. Brown. Delver v. Hunter. De la Creufe and Johnfon Dcmainbray v. Metcalfe. Denifton and Forbes. Denn v. Gafkin. Denfliire and Banks. Dcfaamps v. Tomkins. Dethick and Stephens. Dillingham and Morris. Dixwell and Roberts. Dod and Ayiet. Dodd and Nightingale. Dodd and Hine. Dodemcad and Valliant, Dodfon V. Hay. Doe V. Applyn. Doc V. Pqrryn. •
Doc V, Routledgc.
Doe V, Davy.
Done'scafe.
Dormer v, Packhurft.
Dormer v. Fortefcuc. • Dormer and Ekins.
Dormer and Beaticlerk.
DoraiK/Pyne.
Davenport and Elliot.
Douglas fl«i Cooper.
Douglas and Haftings.
DowiingWAmhurft.
Downs flwrf Trod.
Dow and Thompfon.
Dowlcr and Higgins.
Page 680 758
3
399 81X
3^9 303 3^9 529 16 107 130 130
813 427 238 5S8 >3^ IPS 4+
653 486
10
102 417 579 716
39^ 40i
^ 6sS 516
64s
739
617
402
178, 186
501
339
17
499
449
■ 21^
573
lOJ
35«
5Si
52^
3^< 28'
Downman and Attorney Genera ■ 176,18
Drapers* Company v. Davis. 5 7 .Bonkwatcrv. Falconer. 18
Index of Cafes referred to by the Notes.
Farrant v. Lovcl. Page 7 5 5, 2 1 o
Farrier and Vaughan. 739, 808
Farmer v. Compton. 33 1
Farrington v. Kiiightlcy. 228, 230,
300 Faftnedge and Vxict. 630 Faulklngham and Grimlcy. 1 7 Favcll V. Heelis. 273 Fawkner v.-Watts.fio, 213, 451, 527 Fell and Whecdon. 57, 4.27 FcJ!o53es V. MitcheJL 584 Fellows fl;/rf Smith. 679 Fenhoulct and ^hauncey^ 260 Fen ton and Trueman. 107 Ferrant and Prentice. 1 05 Ferneyhough and Copplij. 1 76, 1 80 Ferrers v. Ferrers. 579 Fettyplace v. Gorges. 709 Fineux ^wrf Willis. 7^9 Finch /2«J Nourfe. 2%,6 \ Finch v. Winchelfea. i83 Fiflier v. Beafelcy. ' 5 1- ' Fiflier V. Wegg. 731 Fitton afid MiicclcsfielJ. 27; Fitzgerald v, Burk. . 304 Fitzer v. Fitzer. 56 Fletcher atid Sibfon. ^2^ Fletcher v. Smiton. 486 Flcxney and KiHick. 36 Floyer v. Shenjar d 278 Foley and Bradford. 317 Foley v. Burnell. 347 Fonnereau v. Fonnerauc^ 3 1 8, 427 Foote and Tritton. 89 Forbes v. Denifton. 653 Ford V. Peering. 511 FordifFv. Scrugham. 273 Forfyth and Stone. 1 60 Fortcfcue /iW Dormer. 17 Fothergill v. Froft. , 44 , Fotherby v. Pate, 96 Feundling Hofpital and Attorney Ge- neral , 751 Fouraker and Yea, 107 Fowke V. Levvin, 450 Fox If. Macreath. 36 Foy and Hutchins. 319, 322 Frammingham v. Brand. 193 Frafcr v. Moore. 226 Freeman ^wrfParfons. 73, 179 French v. Baron. 25, 518 French and Smith* 484
Frogmorton v. Wright. Frogmorton v. Holliday. Fulham V. Jones. Fulham and Andrews.
Pflge 486 486 254
' 317
G.
Gale and Adams. ^.lA,
Gale and Baiiis. j^gg
Galley and Brooke. 4^8^^
Galley v. Selby. Jjq
Galton V. Hancock. 8, 202, 407, 4-27
141
235
Gamul tfw^Brereton.
Garvan and Roach.
Garforth v. Bradley.
Garth V, Cotton.
Garth V. Ward.
Garrett iwd SoweH.
6ardincr and Morgan.
Garratti/. Pritty.
Garbut V. Hylton.
Gardiner and Stephenton,
Gafcoyne ii^id Littlchales.
Gaflcin and Dean.
Gee and Bradiih.
Gibfon V. ^fontfort.
Gibfon V. Smith.
Gibfon and Turvin.
Gibfon and Chapman.
GifFard and Nugcntf
Gillett V. Wray.
Giles and Barker. Gill and Attorney General. Gladman v. Henchman. Glegg ^«J Attorney General. Glide V. Wright. Glover V. Bates. Glub and Slocombc. Glyn and Harding. 1^2,
Godolphin v. Marlborough. 151, Godwin v. Munday. 319,
Gofton V. Mill. Golding./7//t/ Whitchurch. Goodright v. Glazier. Goodright v. Dunham Goodright v. Stocker. Goodtitlc V. Wilford. Goodtitle v. Newman. Goodtitle v. Stokes. Goodere and Bromley. Goodwin v. Goodwin,
212 60 89
95
393 193
3'9 368
5^4
584 486 680 180 485
727 182 241 368
524 617
271
510
102
6l2
615
160 322 107
»7
798 617 486
96
207
731 486, 508
Goringv.Nafh. 182,188,293,371,373 Gorges and Fettiplace. 70^
Gols
l.M D B X of Cafes referred to ly the Notes.
Cofs V. Nclfon. Page 427 Gois Vm Tracy. 90 Governors of Harrow School and At- torney General. 109, O76 Gould V. Tancred. 311, 627 Gower v. Grofvenor. 347 Gradon v. Hick^. 300 Graiiam v. Londonderry. 359, 369 Grayfun v. Atkinfou. 486 Gray v. (Jockcriil, - 727 Greca v. tkins. 59, ioi Qicen V- Beich«r» 102 Green "u, Pi^ot. 105, 645 Green v. Rutlierford. 109, 67 0 Grecu v. Poole. ' no Green v. Smith. ^54* 273 Greejioank and Hearle. 102 Greenwood and liabbington. 453 Grcjlc V Richardfon. 320 Gii^glcii and iilackburn. 273 Gity V, Rijfiardlon. 71b GiiiSvh v» Griffith. . 750 Gamthi anti Morgan. 617 Gn iitli ana Cuiiins. ^06 Giididit;. Spratley. 278 Grimky v» Faulkihham. . 17 Grimlhmc, ex parte. 30 i^ Giuob and Big-feiton. 77 Guidot V. Guidoc. 114^ 254) 446^
630
Guillam V. Holland. 402
Guliivcr V. Wicket. 3 1 7
Gunter v. iiaifey. 3
Guth V. Guth. 551
Guy and Vaughan. 107
Gwync V, Heaton. %*]%
Gyles V. Hall. ' B9
H, Hales v» Hales. Hales V. Vanderheemt Hales V. Cox. Hallifax V. Higgens. Hall and Gyles. Hall V. Terry. Hall and Mercer. Hall and Walcot. Hall V. Dunch. HaU V.Smith. Halfey and Gunter. Hammerton v. Mitton* UmxtAjaOdXzXt^.
225
225 3
520
89 32©
3i' 645 748 772
3
188
,2j8
Hammond and Ruflell. Hancock and £mes. Hancock and Galton,
Hardcaftle v. Sparrow. Harding v. Glynn. Harwood and Skip. Harris v. Mitchell. Har^Tood v. Jacomb. H irvey fl/;J Roe. Harrifon v. Southcotc. Hart and Chapman. Harvey v. Harvey. Harcourt and Thompfon. Harris and Capper. Hart V. Middjehurft. Hare v. Sherwood. Harman v. Wilfon,
Haivey v. Afton.
Han'ey v. Afliley. Harrifon and Tubb. Hafeling and Bland* Haffell V, Tynte. Haftings and Tooke, Haftings V.Douglas. Hafelwood v. Pope.
Pagej^lX 319, 322 8, 102, 40/^.,
• 436
748,71
484, 152
567
529
4S7> ^77
437,63
102, 39^
394
384
293, 188
278
261
Haughton v. Harrifon. Hawkins v. Combe. Hawkins v. Leigh. Hawkins v. Holmes. Hawkins v. Obyn. Hawkins and Stribley. Hawes V. Wyatt. Hawkes v. Saunders. Hayward v. Stillingfleet. Hayward and White. Hay and Dodfon. Hay V. Coventry. Hayes v. Kingdome. Hawes v. Hawes.
254* 330» 364f 504
5^ 60
107
214
32J
35^ 464.
102
102
182,585 50J
589
74»'
224
37
594* 773^
645
739
735 624, 733
Heath v. Perry. 5S, 438, 646, 71$ Hearle v, Greenbank. 101
Heathe and Okc. 1 6a
Heathcote V. Paignon. * 278
Hearn V. Barber. . 450,528
Heaton jwrf Gwync. 278
Heelis and Fawell. 273
Hemmings v. Munckley. 504
Henderfon v. "Miggs. 690
* Henley v. Philips. i6o
Henley v, A£lon. 278
Henchman
Index of Cafes referred to by the Nofei.
|
Henchman arrd Gladman. |
Page 271 |
|
Heneage v. Hunlock. |
221 |
|
Herlakcnden's cafe. |
16 |
|
Hcrrii>g tf/// Webb. |
617 |
|
Hertford and Biooke. |
6;6 |
|
Herbert flw^Teynham. |
726 |
|
Herbert and Manning. |
322 |
|
Heurtley and Stones. |
733» 5^4 |
|
Heurtly v. Mafon. |
57 |
|
H^wit V. Wright. |
680 |
|
Heylin v: Heylin. |
'78 |
|
Heyliu cmd Prince. |
733 |
|
Htccx)ck and Atkins. |
5^*645 |
|
Hicks and Graydon. |
300 |
|
Hide and Wkitchurch. |
496 |
|
Higgings V. Dowler. |
287 |
|
Higdci; and Brown. |
217 |
|
Hiii v^ Chapman. |
214 |
|
Hill and Atkins. |
224 |
|
Hill and Lewis. |
3313 |
|
Hill and Rofe. |
524 |
|
Hilbert and Tate. |
214 |
|
Hilton and Garbut. |
504 |
|
Hine v. Dod. |
65s |
|
Hixon V, Wythanfi* |
735 |
|
Hoare v. Parker.. |
44 |
|
Hoare/»wrfPikc. |
589 |
|
Hoath V. Hoath. |
645 |
|
Hobbs afifl Walton. 407, |
270, 650 |
|
Hobbs and Sadler. |
584 |
|
Hobfon^wrf Churchill* |
584 |
Hockraore and Bonithorn. 518
Hodgworlh V. Crawley. 575 Hodgfon V. Bufley.282, 396,449,510
Hodgfon V. Rawlon. 319, 322
Hogan V, Jackfon. 486
Holies V. Wyfe. 520
Holliday and Frogmotlon. 486
Holtord and Jenks. 450
Holland and Guillam. 402
Holdfaft V. Martin. 486
Holmes and Monkhoufe. 427
Hor.e V. Medcraft. 176
Honeywood and Annand. 453
Hooper and Chaworth. 102
Hooper and Lawley. 541
Hopkins v. Hopkins. 8 1 2i 3 1 7
Hope v. Brown. 486
Hope and Tyrrel. 399
Horde and Atkins. 129
Horde and Saunders. 2251 22b
Hornflcy ^;/rf Simpfon. 180
Page 217 368 4B0
584 271 64s
>39 60,750
Horton v. Whitaker. Horner a/id Amos. Horfley and Chaloner. Howes and Scnrfieldm Hubbard and Voricv^ Hubert v. Parfons. Hudfonv. Hudfbn* Hughes V. Hughes. Hughes ^/i^ Oldham. 71, 680, 254f
414,448 Humphrey v. Moore. Humphrey v.. Morfe. Humphreys and Burleton Humphrey v. Bullen. Hume V. Edwai;ds. Hunt and Price. Hunter and Dcl\^, Hunter and Pulsford. Hurrell asui Pinkey. Hutchefon v. Hammond. Hutchins V. Foy.
ijg
119
331
526
*i2» 5^7*528
193 131
645 729 105 319,321
Hutton V, Simpfon. 129
Hyde and Attorney genevaL 808
Hyde and Billon. 40 1
Hylton and Ramfden. 191
I.
Jaqkfon v, Jackfon. 60, 444
Jackfon and Walker. 202,556
Jackfon and Ramfden. 483, 540
Jackfon and Hogan. 486
Jackfon v. Parker. 748
Jacomb v. Harwood. 5 1 o
Jago and Seeley . 44 7
Ibbefton v. Beckwith^ 486
Jeacock v, Falkner. 77
Jeale v. Titchner. 3 19, 322
JefFrys and Montague. 748
Jekyll and Shudal. 7 7
Jekyll and Williams. 466
Jenkins and Warner. 44
Jenkins v. Whitehoufe. 160
Jenkins v. Keymifli. 1 88
Jenkins and Edwards. 694
Jenks V. Halford. 450
Jennings and Nottingham. 617
Jennings v. Looks. 335, 427
Jenner v. Tracy. 22b
Jcrmin tf/7t/ Whitwick. 254
Jemegan fl;/t/ Willis. 278
Jcflbn V. EfEngton. ^570
Jefus College v. Bloomc. 38 1
Jewfoji
I K o £ X of Cafes tijetril to ty the Notes.
Jcwfon V. Moulfon. Pagej^o^^ yai
Jcwfon ON J Colegrave.
Incledon v. Northco,te«
Ingram an^i Shepherd.
Johnfbn and Taylor.
Johnfon v. Dc la Creufc.
Johnfon, ex parte.
Johnfon and Newftead.
JollifTe and Lowe.
Jones and Taylor.
Jones afid Macnamara.
Jones V. Strafford.
Jones V. Clough.
Jones and Fulh;im,
Jones V. Weflcomb,
Jones and Taylor.
Jonas and Pengrce.
Jordan v. Savage.
Jory v. Cox.
Imham v. Child.
Ithell v. Beane.
Judfon /iw^/NichoIIs.
If^s and Metcalf.
Ives V, Legge.
Ifie V. Ivie.
500 102^369 102 102 105
164, 479
232
. 96
56
75 107
254
679 56s
6l2
520^559 278
188
06,65
494> 529 617
382, 571
K.
Kecble V. Thompfon,
Kelly V. Pawlet.
Kemp V. Mackrilh
Kemp V. Day.
Kemp and Burrill.
Kcnnegal and Reech.
Kent V. Kent.
Kentifli V. Kentifli.
Kcttleby v. At wood.
Kcymifli and Jenkins.
Killick v. Flexney.
Kiilet and JJzwhn.
Kinafton and Woodcraft.
King V. King.
King and Woodcock.
King V. St. Catherine's Hall, Kingdome and Hayes. Kingfman and Marriot. Kinfcy v. Kinfey, Kirby a/ui Luther. Kirkman v. Kirkman. Jtnap v» Noyes. Jbiap aiid Chamberlain. Knight V. DupltiQs. ,. Vol. III.
584
202, 370
772
319 193 589
692
77 188 188
36 3»9 363
75 no 676
735 160 809
743 419 5^4 302
Knightly and Farrington. P. 3^0, 228
230
Knight and Burton. ^29
Kynafton v. Clark. ^65
L.
Jjadbroke and Tomkins,
Lake v. Craddock.
Lambe and Salifbury.
Lamb v. Parker.
Lampen v. Clowberry.
Lane aWDurnford.
Lanoy v. Fairchild.
Lanoy Vi Athol.
Large and Barnard.
Lawley v. Hooper.
Lawfon v. Stitch.
Lawton v. Lawton.
Layer and Cotter.
Lechmere v. Carlifle.
Lee and Oxley. Lee V. Prieaux/ Lee V. Pafcoe. . Leech v. Trollop'. Lees and Mellor. Legal V. Miller. Legaftick v. Cowne. Legat V. Sewell. Legge and Ives. Leigh and Hawkins. Le Neve v, Norris. LethieuUier V. Tracy. Lewellin v, Mackworth.8i Lewin v. Lewin. Lcwin and Sdlon. Lewin and Fowke. Lewis and Wyld. Lewis and Taylor. Lewis V* Lewis. Lewis V. Hill. Lillcot t;. Compton. Lindopp v» Eboral. Lingen v. Sowray. Lingood and Barnardifton. Litchfield and Ulrick. Litton and Amherfl. Litton and Robinfon. Litton V. Litton. Littlehales v. Gafcoyne. Lock and Attorney general.
20,
616
735 524 748 4^7 615 188
5i«
24
541
122
14, 16 160
254.3^3 4ii
398 727
5" 225
3
107
815
617
182, 585
655,811
739 1,817,217
694 814
739
720
457
323
370
77 254, 630
278 258, 493
o 3'7
485. 723
579
584
109,212
Lockcy
Index of Cafes referred to iy the Notes.
21O9
Lockcy v. Lockey.
Lock wood V, Ewer.
Logan and M*Adam..
Lombc V. Lombc.
London, (City of) /iWStaffbrd.
Lonfdale v. Church.
Longuet V. Scawcn.
Londonderry and Graham. 359
Looks and Jennings.
Lovell and Farrant.
Loveacres v. Blight.
Love V. Le Strange.
Lowe V. Jolliffc.
Lowthcr V. Condon.
Lowther v. Carleton.
Loyd and Skutt.
Loyd V. Williams.
Lucas V. Lucas*
Lucas V. Commerford.
Lucy V. Moor.
Luther v. Kirby.
Lydiard and Sterling.
Lyon V. Dukeof Chando$«
Poge'i 215
479 no
274 278
369 427
rss 486
- 427 96
319, 114
392, 648
297
102
72
S15
743 176
4«
Mabbot and Stace. Mac Adam v. Logan. Macaree v. Tail. Macclesfield v. Fitton. Macey v. Shurmer. Mackreath/i;/J Fox, Mackrill /im/Cordwell. Mackworth and Lewellin.
Mackrill and Kemp. Macnamara <;. Jones. Maddifon and Ben yon. Maddox V. Miiddox. Maidwell and Corbett. Maire, ex parte. Man V, Ward. Manlove v. Ball. Manning v. Herbert. Marfdcn v. Parfliall. Marwood v. Turner. Martin flW Cooke. . Martin v. Rcbow. Martin and Embrcy. Martin /i/irf Holdfaft. Marlh^Il.v. Blew. Marlhall WStandford,
Marlborough t;. Godolphin. P/i^^ 15 fi
i6q Marriot v, Kinfman. Malcal V. Mafcal. Mafon and Heur'tley. Mafon and Palmer. Maflcrs V. Rafliley. Mailers v. Mailers. Maftcr and Fellows of St
160
77
57
102
254*261
.370 Catherines'
5^3
486
271
75
36
993
2i7»8ii,
817
772
75
57i 427
65;
4»9
S59
96
4 322
44
176, 803
132
226
3?2 486
359 711
Hall and the King. 676
Mafter and Fellows of St. John's
College V, Todington^ 676
Maybank v. Metcalfe. 604
May V* Wood. 427
Maxwell V. Montacute. 3
Mead and Tyrrell. 376
Mead and Beauclerk. 254
Meale and Seagoodc. 3'
Medcraft and Hone. 1 76
Medcalf v. Jves. ^94, 529
Mellifti flW Sturt. 108
Melhfli V. De Coda. 5 1 9.
Mellor V. Lees.
Mendes v. Mendes.
Mercer v. Hall.
Merryland and Wilkinfon.
Metcalf and Demainbray.
Metcalfe and Collins.
Meyrick and Attorney general.
Micklethwaitc and Perkins.
Middleton and Attorney general,
Middlehurft and Halt.
Middlehurfl and Powel.
Miggs and Henderfon.
Mildmay v. Mildmay.
Milner and Attorney general. 69,3 19,
254 Mill and Gofton. 1 07
Miller V. Miller. 214
Miller and Stamper. 166
Miller and Abney. • 121, 176, 200 Miller flwrf Legal. 3
Mitchell and Fellowes. 584
8?3 225
524
33^
486
44
645 808 80 109 188
293 696
755
529 188
Mitchell and Harris. Mitton and Hamerton. Monkhoufe v. Holmes. 427
Montgomery and Attorney General.
543
Montgomery and Ball. 55 1
Montague v. Jeffries. 748
Moody af;d Cunningham. 254* 447
* Moor
I K D E X tf Cafes referred to hy the Notes.
Hoot and Lucy. Moore V. Moore. 63
Moore and Humphreys. Moore and Frafer. Moore a/7 J Stokes* Morgan v. Gardiner. Morgan v. Griffiths. Morreit v. Palke; Morretts and Blower. Morris v. Dillingham. Morris v. Burrows. 436;
457,
Page 56
437,811
119
226
S03 319 61^ 556 . 812
579
7'5 278
36 119 486 ,405 180 504 322
486 811
721
Morris and Portmorc. Morrice and Twining. Morfe and Humphrey. Morfej/?^ Tanner. Moulfon and Jewfon. Mountford v. Gibfon. Munckley and Hemmings. Munday aW Godwin, 319,
Murray ^//^AylifF. Murry v. Wife. Maflell V. Morgan.
N.
NaQi and Attorney general. 8o8
Naflij;/ J Goring, 182, 188, 293, 371,
377 Ncalc V.Willis.
Nclfon and Gofs.
Ncfliit and Totty.
Nctter?ille and Colt.
Neve V. Neve.
Ncwborough and Wync,
Newman and Good.title.
Newftead V. Searle.
Ncwftead v, Johnfon.
Newt V. Chamberlain.
Nicholls and Bluck.
Nicholli V. Judfon. Nicholls v. O(born. Nightingale v. Dod. Norris i/. Le Neve. Nonhcote and Incledon. Northcy v. Northey. 359 North oftd Thomas. Nottingham ^/i^ Jennings. Nourfe v. Finch. Naycs and Knap,
Nugent V. Gifiard.
645
427 214 384
36, 39> ^2 750 207 188 232
59^
44
65, 96
162,370
401 65s, 81 r 102, 373 369, 510 748 617 226 504 235; ^41
Gates fl»</ Prober. Obyn and Hawkins. Oke V. Heath. Oldham v. Hughes.
Oldin and Samborne. Onfiew V. South. Ord and Brandlyn. Orrery and ShelHjsld. 0(born and Nicholls. Oughterlony v. Powis. Owen v. Owen. Owen V. A price. Owen V. Davis. Oxley V. Lee.
P.
Packhurft ^7«^ Dormer. Page and Tuffnel.
Paignon and Heathcote.
Pain and Ridout.
Palling and Stedman.
Palmer ^WCorbett.
Palmer v. Mafon.
Parker and Hoare.
Parker and Jackfon.
Parker and Lamb.
Parker and Shode.
Parkurft and Boynton.
Parfliall and Marden.
Partington and Andrews.
Parfons and Hubert.
Parfons v. Freeman.
Partridge v. Pawlet. 201,
Partridge /7W Checfcman.
Pafcoc and Lee.
Pafke and Morrctt. Patten and A! fop. Patter Ton v. Slaughter. Pate and P'otherby.
Pawjei's Cafe. Paw fey v. Edgar. Pearley v. Smith. Peering andYonS. Pembroke and Ca.tor. Pembroke and Boden. Pembcrton and Smith. Pengal v. Rofs. Pen V. Bahimore. 276, a 2
Page 21^
533 160 71, 254, 414, 448^ 680 426 427
377
317 102, 370
107
733 129
3
339 485
278 486
645 427
102
44
748
748
52a
438
44 60
645
733 179
436, 734
358
727
556 3.
522
96
427
322
273
271
3
304> 509 Pcngrec
3S»
319*
I KD EX of Cafes referred to by the Notes.
Pcngrec v. Jones. Page 565
Penhey v. Hurrell. 729
Parkins v. Walker. 7+8
Perkins v. Baynton. 524
Perkins artd Timewell. 486
Perkins v. Micklethwaite. 80 Perry and Heathe. 58, 438> 646, 7 16
Pcrring and Doe. 6 1 7
Petty V. Steward. 734
Petrce v. Petree. 571
Pcterfon and WaTflr, 390
Phillips V. Annefley. 1 05
Phillips V, Aldridge. 155
Phillips and Henley, 160
Phillips J//// Stringer* 524
Phi[1s V. Steward. 360, 566
Picketing v. Towers. 6 1 7
Pikerill and Aggas. 3 1 3
Piddock V. Brown. 4^1
Pierfon v. Shore. 38, 1 76
Pisrfon v. Pulley. 225
. Piers V. Piers. 217
' Pigot fl//</ Green. 645? > 05
Pike V, White. 182, 191
pike V. Hoare- 589 Pilkington v. Mayor of York. -247
Pile V. Pile. ' 77
Pipon and Wallis. C48
Pitt ^. Dawkra. 529
Pitfield's Cafe. 319
Plymouth and Ridout. 393, 438
Poole and Green. 1 1 o
Popham V. Aylert>ury. 232, 437
Popham and Bamfielcf. 739
Pope and Haflewood. 464
Port more v. Morris. 278
Portfmouth v. Effingham. ' 511
Porter v. Hubbart. 271
Potter V. Potter. 3i 1 80
Poulton V. Allen. . ^o, 75
Powis and Oughterlony. 1 07
Powlet and Kelly. 202, 37Q
Powell V. Price. 293
Powis v. Corbel t. 630, 659
Prentice and Fcrrand. 1 05
Prefwick r/z/i/ Walker. 273
Price *u. Faltncdge. 630
Price V. Hunt. 193
Pricaux and Lee. 398
Prince v, Heylin. ^ 733
Pritty and Gorratt. ^6
|
Probert v. Clifford. |
' P"g^Ai'i |
|
Pro£tor i;. Gates. |
225 |
|
Prowfe V. Abingdon. |
69, 112, |
|
«C7, 320, 335 |
|
|
PuDen V. Ready. |
504. 254 |
|
Pulsford V. Hunter. |
645 |
|
Pultney v, Darlington |
680 |
|
Punter and Stag. |
249 |
|
Purfe V. Snaplin. |
103, 120, 200 |
|
Pyke v. Williams. |
,? |
|
Pyke^wJ Croft. |
|
|
Pyncent v. Pyncent. |
382, s 1 1 |
|
Pync V. Dor. |
2»6 |
|
Q^ |
|
|
Quincey, ex parti. |
16 |
|
R. |
Radley and Standifli. 8 1 1
Ramfden v, Jackfon. 483, 540
Ramfden v. Hylton. 191
Randall v. Bookey. 226 Randall and Attorney general. 584
Rafliley and Mailers. 254, 261
Rawfon and Hodgfon. 319, 322
Rawlinfon attd Cole. 486
Raymond's (Lord) cafe. 304 Read v. Snell. 86, 409, 193
Read v, Truelovc. 584
Ready ^7//^ Pullen. 5^4* 254
Rebow ajid Martin. 226
Redding v. Wilkes. 3
Reech v, Kenegal. 539
Rich and Wills. fco7
Richardfon and Grey. 7 1 6
Richards v. Evans. 498
Richardfon v. Q-recfe. 320
Ridgard rtW Bonny. 235
Ridout V, Piymoutli. 393, 4^8
Rider v. Bickerlton. 480
Ridout ^. Pain. 486
Rider v. Wager. 748
Rigden v. Vallier. 12, 525
Right V. Rufiell. 486
Rights. Sidebotham. 486
Roach V. Garvan. 60
Robinfon V. Robinfon. ' 784
Robin fon v. David fon. 81 1
Robinlon v, dimming. 579
Robinfon V. Litton. 485, 723
Robiafon v* Tongue. 465
Robins
I K D E ^ of Cafes referred to by the N^^s.
Robins t;. Spinks. Robertdeau v. Rous. Roberts v. Roberts* Roberts v. Dixwell. Roberts /i/z^Swift.^ Roden V. Smith. Roc V. Boulton. Roe v. Harvey. Roe V. Airs. Rolfe V. Budder. Rondeau v. Wyatt; Roome v. Roome. Rofe V. Hill. Rofs and Clark. Rofs and Pengal. Rofewell's cafe. Roundell v. Breary. Rootledge and Doe.
Rowell V. Walley.
Radge v. Barker.
Rudltone v. Anderfon.
Ruflel v. Dai win.
Rofiell V. Hammond.
Ruffel and Witton. •
Rudierford and Green.
Rutter and Cudd.
Ryallv.Rolle.
Ryboc and Bonafous.
S.
^addlcrv. Hobbs. ^alifbury v. Lambc. ^alkcld V. Science. Salt ^;7 J Chapman. Samborn and Old in. Saunders and Hawkes. Saunders v. Horde. Saunders v. Dehew. Savage /iW Jordan. Scarborough ^WWorfley.36, Scarrifbrick and Attorney
Scarfe and Cafbom. Search v. Cotton. Scattergood v. Edge. Scawen and Longuet. Scott V. Tyler. Scnigbam apd FordifF. Scurfield v. Hawcs. Seagood v. Meale. Seamer v. Bingham.
Page 98
2761 5^9 566 716
743
4^7 486
ib.
\b.
399
191
5H
319
3
95» *>o
412 210
80 176
89
412
S39 676, 109
384 63
520
584
70
77 426 224
22q 238 612
294,648
general.
559
748
119
.317
1278
368
273
584
3
221
293
Scarle and Newftead. Searle v. Carpenter. Selby V. Jago. Selby and Galley. Sellon V. Lewin. Senhoufe v. EarK Sewell and Legatt. Seymour v. Trefilian. Seymour and Coleman. Sharp fl/irf Taylor. Shawe v. Cundliffe. Sheffield v. Orrery. Sheldon v. Cox. Shepheard v. Ingram. Sherman v, Collins. Sherard and Floyer. Sherrard v. Sherrard. Sherwood and Hare. Shields V. Atkins. Shirley v. Watts. . Shode V. Parker. Shore and Pierfon. Shrapnell v, Blake. Shrewfbury and Bowes. Shrimpton v. Stanhope. Shudal V. Jekyl. Shmmcr and Macey. Sibley v. Cook. Sibfon V. Fletcher. Sidebotham and Right. Silverlock ^WBeauchamp. Simmonds and Bond. Simpfon and Hutton. Simpfon V, Hbrnfbey. Simpfon and Tilley. Simpfon V. Butcher. Skip V. Harwood. Shutt and Loyd. Slaughter v. Patterfon. Sleech v. Thorrington. Slocombe v. Glubb. Smeaton jWWeller. Smith v. Clay. Smith v» Baker. Smith, ex parte. Smith flr/irf Green. Smith V. Cooke. Smith V. Pemberton. Smith and Aykwell. Smith and Boden. Smith V. French.
Pagei%9 27^
447 560 «14 ,511,81s «IS 394 lot 811
I02
^5S
102
"4
27^ 261 27 S 141
520
38> '76
8c^
68a 230
77 7S 582 225 4B6 480
^2^ 129
180 486 691 567 . 297
35>522
726
38
75, 182 it)4, 559 254, 273
263»57' 271 360
427 484
Smitk
Index of Cafes referred to by the Notes.
86,
Smith and Glbfon. Smith and Chapman. Smith and Pearley. Smith and St. Saviour's Smith V. Cory ton. Smith and Bovey. Smith v. Feilowes. Smith W Hall. Smiton and Fletcher. Snaplin and Purfe. Snatt and Archer. Snell and Kczd. Sncll V. Dee. Snelfon v. Corbett. Somerville v. Chapman. Sorrel 1 v. Carpenter. South and Onflow. Southby V. Stonchoufe. Southcote and Harrifon. Sowden v. Sowden. . Sdwell V. Garret. Sowray and Lingen . Sparrow v. Hardcaftle. Spencer V. Wray. Spcndlove and Allen. Spinks V. Robins. Sprangev. Barnard. Spranger and Ballett. Sprafley j/it/ GriiHth. Stace V. Mabbot. SrafTord and Jones. Stafford V. City of London. Stafford and Travers. Stag V. Punter. Stamper v. Miller. Standilh v.-Radley. St;yidford vi Marfhall. Stanhope and Shrimpton. Stanhope v. Cope. Stanley y;. Stanley. Stapley <3r//^/ Butcher. Stapleton v. Cheeles.
Page 485 499
516 529
563 679
m 486
102, 120, 200
660
193,409
39S 89
392
160
277» 457 3^3 193
254,680
73w48>749
486
617
98
20 r
278
543 107
1 10 694 249 166 811 711 230 278 417.
. 3
4'27» 64s
39>
Stapleton a/i^Archbifliop of York. 592
Statham. t;. Bell.
St Bury and Whetllone.
Stedman v. Palling..
Stebbing v. Walkey.
Stephens v. Trueman,
Stephens v. Dethick.
Scephenton v. Gardiner.
Steward and Phipps.
Stich and Lawfon.
3»7 729
645
257 188
417
727
360, 566
122
Stillingflect and Hay ward. Stirling v. Lydiard. Stocker and Goodright. Stokes V. Moore. Stokes and Goodtitle. Stoit V. Ayloff. Stone v. Evans. Stone and York. Stone V. Forfyth. Stonehoufe and Southby. Stones w. Heurley. Stopper and Earle. Story V. Windfor. 264, Stowel V. Cole. Strafford and Blakeway. Strathmore v. Bowes. Stribley v, Hawkins. Stringer v. Phillips. Strode v. Falkland. Sturt V. Mellifh. Stywa'rd and Petty. Suretees and Barker. Suffolk /?/;JBindon. Swadlin and Bower. Sweetapple v. Bindon* Swift V, Roberts. Symance v. Tatton.
T. Tail and Macaree. Talbot and Chandos. Tancred and Gould. Tanner v. Morfe. Tanner and Chapman. Tafli V. White. Tate V. Hilbert. Tatton /i«rf Symance. Taylor v. Sharp. Taylor v. Lewis. Taylor v. Jones. Taylor t/. Johnfon. Taylor v. Beech. Templar and Adean. Terry and Hall. Tew and Winterton. Teynham v, Herbert. Thomas and Vaughan. Thomas v. North. Thompfon and Keeble. Thom.pfon T;..Harcourt« Thompfon v. Dow. Thorrington and Sletch.
jP^^^3I7 176 486
503
739
72
748 748 160 160
S24> 733 529
3041 563 692 IC7 217 589
180 108
734 193
93
254
743
24
627
486 427 811 486
273 225
214
24 811
720 680, 56
1C2
3
175
320
579 7 6 278
748 584
384 319
^?57 Thyn
I N D E X o/" Caps referred to by the Notes.
Thyn v. Thyn. Page 539
Tichner and Jeale. 3 19, 322
TlUey V. Simpfon. 486
Tilley V. Bridges, 1 26
Timewell v. Perkins. 486
Tipping V. Tipping^ 369
Tiflen v. TiiTen. loa
Tobin and Beckford. 102 Todington and St. John's College.
676
Tomkins v. Ladbroke. 616
Tomkins and Defcramps, 1 02
Tongue and Robinfon. 465
Tooke V. Haftings. - 3^3
Toplist;. Butler. 581
Totty T/- Nefbit, ^ 214
Towafcnd v. A(h. 141
Townfend v. Windham. 369
Towers and Pickering. f> 1 7
Tracy v. Tracy. ' 210
Tracy and Gofs. 96
Tracy and Jcnner. 226
Tracy and Letheulier. 739
Traford v. Boehm. 680
Travers v. Stafford. 694
Tiavers and Beard- ^ 304
Trelawncy v. Booth. ' 1 14» 254
Trefiiian and Seymour. 394
Trcvannion t'. Vivian. 102
Tritton V. Footc. 89
Trod V. Downes. 524
Trollop and Leech. 5 1 1
Troughton v. Troughton. 269, 556
TnieloYe and Read. 584
Tnieman v. Fenton. 107
Trueman and Stephens. 188
Tubb V. Harrifon. 60
Tudor V. Aiifon. 508
Tuffnall ssnJ Culling, 16
Tuffnall V. Page. 486
Tunftall V. Brachen. 319* 3^^
Turner fl//^/ Mar wood. 803, 176
Turner and Ward. 2 1 4
Turner and Atkinfon. 102
Turwin v. Gibfon. 727
Twining v. Morrice. 36
Tyler fl/;// Scott. 368
Tyndal and Attorney General 808
Tjnt and HiffdU 214
Tynt V. Tynt. 369
Tyrrell v. Mead. Tyrrell v. Hope.
Page 376 399
V.
Vade and Bennett. i j
Valliant v. Dodemede. 516
Vallicr and Rigden ' 2 , 5 25
Van v. Clarke. i ij, j^o, 6^5
3
107 278
347
Bog
188 201
748
102
J58>493
739»
Vandcrhet-m and Haly.
Vaughan v. Grey.
Vaughan v. Thomas.
Vaughan v. Burflem.
Vaughan v. Farrier.
Vernon v. Vernon.
Verney v. Verney.
yilliers v. VillierSf
Vivian and Trevannion.
Ulrick V. Litchfiled.
Vincent and Eaft India Company,
75 «
Uflier V. Aylefworth. 784
Uthwatt flr//rfBellafis. 651 77, 98, 183,
419 W. Wade and Dean. Wager j«i/ Rider. WagftafFv. Wagftaff. Waite V. Whorwood. Walker v. Walker. Walker v. Jackfon. Walker v. Prefwick. Walker mdVerkim^ WalleyaW Rowell. Wallis tf* Pipon. Walkey and Stebbing. Walton V. Hobbs. Walfh V. Peterfon. Walmfley v. Booth. Walcot V. Hall. Ward and Garth. Ward and Avelyn. Ward and Bainton* Ward V. Turner. Ward and Man. Ward and Dudley. Warde t/. Warde. Warner v. Jenkins. Warwick and Edwards. 188, 254, 261,503,688 Warwick
130
^ 74« «5'
o 39^ 3, 8, 389
202, 556
273 748 20c 248 257 27<=>> 407* 650
390 520 645
392
3if
269
214
96
16
8, 178
44
Index of Cafes referred to by the Nbtef.
Warwick v. Warwick.. P. Watts flWFawkner. 60,
Watkins v. Watkins. ' Watts ami Shirley.
Webb V. Claverden.
Webb V. Herring.
Wcedon v* Fell. 1
Wcgjr and Fiflier.
Wcller V. Smcaton.
Wclford fl/i^Goodtitlc.
Weft, eK parte.
Weft V. Erifley.
Weftlcy V. Clarke.
Weftcomb and Jones
Weyland v. Weyland.
Wharam v. Broughton.
Wharton v. Wharton,
Whelpdalc v. Cookfon.
Whetftonc v. St, Bury.
Whiibread v. Brockhurft*
Whitbrcad and Bennet
Whitchurch v. Golding.
Whitchurch V. Hyde.
White V. Hay ward.
White /z/zr/ Ta(h.
White tfW Pike. . Whitelegg v. Whitelcgg.
Whitehoufe and Jmkin.
Whitfield V. Bcwit.
Whitfield, ex parte.
Whitton V. Ruflell.
Whittaker and Hortpn.
Whittaker v. Whittaker.
Whitwick and Burgrave*
Whitwick V. Jermin.
Whorwood and Attorney
Wicket and Gulliver. Widmore ^;/t/Blandy. Wigg V. Wigg. Wilcocks V. Wilcocks. Wijcocks and Coke. Wilcox and, Kent. Wilkes and Redding. Wilks V. Wilkes. Wilkinfon v. Maryland. WlHats v. Cay. William* V. Williams.
168, 6481
377*39^
2i3>4§i»
527
72> 550
193
387
617
427> 57 731
726
96 80
293' 37' 58+
317 419
594 522
36 729
3
130
17
594.772 225
i82i 191 496 160
• 95.755 519 539
317
254
80
^ *54 General.
323 317 419
322
323 814 748
3
323
486 709 61S
Williams v. Jekyl. Williams and Loyd. Williams v» Bolton, Williams and Pyke. Willis V. Fineux. Willis and Neale* 'Willis V. Jernegan. Willis andCxAy. Wills and Billingfley. Wills V. Rich. Wilfon and Creagh. Wilfon and Hurman. Winch and Coleman . Winchelfea v. Finch. Windham and Townfend. Windfor and Story. 264, Winterton and Tew. Wife and Murray. Wood and May. Woodcraft v. Kinafton, Woodcock V. King. Woolcomb V. Woolcomb. Worfley v. Scarborough.
Worlidge v. Churchill. Wray and Spencer. Wray attd Gillet. Wright and Clerk. Wright and Glide. Wright and Frogmorton, Wright oftd Hewit, Wyat and Rondeau. Wyatt aWHawes. Wyld V. Lewis. Wyndham v. Wyndham. Wynn v. Newborough. Wyfe and Holies. Wyth V. Blackman. Wytham andiWxon,
Y.
Yates V. Hambley. 225, 278
Yea V. Fouraker. 107
York, (Mayor of) v. Pilkington. 247 York, (Archbiihop of,) v, Stapleton,
592 York V. Stone. 748
Pagg /\66 102
9?
3
729
64/? ^78 612
57 607
368 261 660 1 88 369 304. 5^3
'579 486
427
Z^l no
437
365 394.
648
78 486 368 3,504 102 486 680
39<> 748
739 102
750
520
347 73S
Z.
Zouchj;?^/ Barker.
749
CASES
CASE
A&GUBD ANP DSTESLMINED IK THE TIMl 09
Lord Chancellor HARDWICKE.
John/on ?• Br$wn^ Novefnter ^f 1743. Cafe I •
A Bill was brought for an account by a creditor of a bank- Where the dc* rupt againft the afTignccs. S'dbS e ***"' of
The aflignees put in an anfwcr denying all the equity of the a biiUwd 2e Villf and the plaintiff brought the caufe to a hearing, on bill and piaintiflfbriagt. anfweronly. ^ SL^'^oiaui
Lord Hardwch upon the merits difmifled the bill with cofts and anfweronir* to be taxed 5 for he faid the plaintiff in this cafe avoided re- "n»f<>«'togetoff plying, in hopes of faving cofts, and that he would not en- Jhe'^i^rtio^Sf- courage a pradice which was done merely to get off with forty mining the bill fcilHngs cofts ; for if a motion had been made to difmifsthe tponthemeritt, Wl for want of profecution, the plaintiff knew the defendant Sxc^° ^ ^^ * vottld have been intitled to full cofts ( i )•
(i) Fide Mte % vol. aSS.
Lacon v« MertinSf Novemhr 9^ 1743 •
yO HN Hmj and Eiizaiethhis wife, the heir and dcvifec of ^^^^ ^^ J Simon Degge deceafed, being feifed in right of Elizabeth of 3, c. t Wiif. • divers lands in Derbjflnrt^ hdd by leafe from the dean of Lin* i Vet. 312. 061 to the faid Sim$n Degge and his heirs for three lives, Wz. Lord Hardwcki the Ufcof Simm Degge, Elizabeth his wife, and the (iid £//- ^"^^/^ ^^'^^^ ideth Hay, and alio feifed of the inheritance in fee expcdant ^^fe decreed an cache death of dame Elizabeth Saunderfin^ grandmother to agreement to be JSJkaiith Ha,, and of her mother, in the manor oi Boothby, "-^^^Ti^^^ and divers lands in Uncoinjbire : They borrowed on the i oth of the admini. of Juh^ I735> 1000/. of Thomas Mofelj, and for fecuring ^^^t^I^l^'.^' thereof by leafe and releafe and fine conveyed to Mofely and ^^^^^V" lus heirs the laid manor and lands in Derh^ftiire, and on bor- loving the further fum of 800 /• they conveyed to Mojely the bnds in Uncolnflnre^ and on M^felf% advancing aco/. more. Vol. in. B thej
CASES Argued and Determined
Mi1t*i/' they fubje£lcd both eftates with the payment of the feveral funis of loooL 800/. and 200/. but, before any part of the principal and intercft was paid, John Hay died without iflue, and his wife became folely fcifed, and in November^ 1737» borrowed of Mofely the further fum of 240 /. o /• 6 d* which, with 159/* 19 J. 6rf. due for interefl", made 2400 /• and by indorfement oti the fecoiid mortgage deed fubjc6Ved both cilates with payment of the 2400/. and iiV/z/i^r//:^ being dcfirous of difpofing of her intercft in the lAticolnJhire eftate, and to add a third life to the leafe of the Dcrbx/bire eilate, in order to raife a fund for the payment of her debts, employed one Fcrf" ter to treat with the defendant Mert'mSy when, after di^rers meetings, Fcrjletj on behalf and with tlie confent of EH" zabeth Hay^ came to the following parol agreement, that £//- xAbeth^ in confideration of 2260 /. lox. to be paid by Mertins^ fliould convey tlxe eftate in Lincoltijbit e to him and his heirs, fubjeft to the eftates for lives of Lady Sautiderfon and Eli* beth Degge^ and the purchafe money to be applied towards the difcharge of Mofely\ mortgage ; and it was alfo agreed that the leafe of the Derb\Jblre eftate fliould be renewed, and a third life added, viz. the fon of the defendant MeriinSy and that thereupon he fliould lend to Elizabeth by way of mortgage and on the fecurity of the Derby/hire cftaic i6oo/. in oider to raxfe a fund for payment of her debts and the reft of Mofely^s mortgage, and alfo to enable her to pay 375 /- fine for the faid renewal, and Mertitis in part of the agreement paid Eli- zabeth 100 L for which he took her note, and on the death of Lady Saunderfon^ he, in confideration thereof, farther agreed to add 140/. to the 2260/. 10/. making together 2400/. 10/. and in further execution of the agreement paid Elizabeth an- other 100 /• for which he took her note, and afterwards an- other 100/. and alfo 400/. to enable her to pay the fine to the dean of Lincoln^ and to add a third liie in the Derby/hire eftate, for which he took a bond tiU the agreement could be completed, outof which fum flie paid 375/. and a new Icafc was taken of the Derby/hire eftate, wherein the life of jJiSr- tins the fon was inferted with the approbation of Mertins the father according to the parol agreement : before the fame wa» perfedlcd Elizabeth Hay died intcttate, leaving the defendant Degge her heir at law.
The plaintift being a large creditor of Elizabeth Hay^ by fimple contracJ:, having procured letters of adminiftrztion in truft for liimfclf and the reft of the creditors, brings^his bill, praying an account of the inteftate's real and pcrfonal aflets, and of l»er debts, and to receive a fatisfadion out cf thereat for lb much of the perfonal as had been exhauftcd in difcharge of the fptciaJty ci editors, and that the agreement efttered into wthtke defendant A^ertins tnay be fp-rifcally carried into execution^ and that he may be compelled to lake a conveyance of the Lincolnfiiire eftate, and advance the i6oo/. on the Derbyflfifi
edits
in the Time of Lord QianceDor HxttDWiCKfic
eftate as a fund for the payment of the inteftnte's debts,' and Lacok v. that the dtfetidant Degge^ the heir at law, might convey to ^^* tin it Aletiim as the court (hail dire£l, or in cafe he docs not, tliat Mertms may hold the eftates to him and his heirs.
The defendant John Mertins by his anfwcr admitted all the faAs and circumuances relating to the parol agreement| as - charged by the bill, and offered to perform it, and complete his parchafe of the Lincolnjb'ire eftate, and advance the 1600 /. on the fecurity of the Derh^ire edate, provided he be allow- ed the feveral fums advanced on the foot of the agreement out of fuch purchafe and mortgage money, and be permitted to hold the edate in Linc$mjbire to him and his heirs, and fo as the leafc of the Derhjjb'tre eftate be renewed, and the lives fal- len therein fincc making the agreement be filled up.
The counfel for the defendant Degge^ the heir at law, in- Gfted he was an intire (Irangcr to all ihe tranfadions between Mertins ani Elrzaheth Hay, but if any fuch parol agreement was made, he was not, nor could be bound, or any ways affefled thereby, in regard the fame, or any part thereof, did not ap- pear to have been reduced into >%Titing, nor in any fort perfor<% med by Elizaheih Hay in her life- time.
Lord Chancellor,
The firft quellion is, Whether the agreement infifted on by the bill, and admitted by the anfwer of the defendant ^/<r- tins, ought, upon thefe circumdances, to be carried into execution ; what makes this particular, is, if the bill had been brought by Mrs. Hayes in her life-time, and the defendant Mer^ tifu had admitted the agreement, though he had infifted on not performing it, the court would have decreed it; becaufe the admilfion takes it out of the datute of frauds and perjuries.
The fecond quedion is, Whether, as between the reprefcn- tativeof Mrs. Hayes's perfonal edatc, and the defendant Merlins aiid Mrs. Hayesh heir at law, it ought to be performed ? ;
It has been objected by tlie counfel for the heir at law, that the agreement is not in writing, nor concluded; and if it was reduced to a certainty, yet there has not been fufEcicnt part- performance.
Now it is clear to me that there was a certain agreementi with a variation afterwards from an accident, by which the eftate became more valuable ^ for it does not appear that Mrs. Hayes had the lead intention of breaking off the agreement, but infided onlv on an advanced price, as it was natural and Teafonable for ncr to do : and it is likewife in evidence, that the defendant Mtrtins agreed to give more, and tliat Mrs. Hayes defirtd him to pay the third fum. There arc feveral ways of part executing an agreement (i).
If
(l)Ai to the part performince of 617. Lockry v. Lccjte}', Pre. Cha. ftg^
agreemeiits, fee the following cafei, Max*weil v. Mon/mcute, i^ia. ^26. Seag^ode
Jtmehirv. StafJey, 1 ^irm. 363. ^/op V. M^ale, ibid, 5 do. r^npal v. Rofs,
T. Patten, ihid. 47a. Py^e v. ITtUlams, 7. Eq. Ca. Ab. 46, pL ii. pf. \6. Earl tf
• r«-«.455. HaUs r, Ktiadetbcsm, ibid. AyiufwXs cafe, % Stret. 783. Clerk r.
4 CASCS Argued and Determined
Lacow t. If poflefTion is delivered, that is a ftrong evidence of the part-*
MiiTXNs. execution of an agreement.
Dcl'iTcry of pof-
lenion> or payment of monry, is a part performance of an asreement not rrductd into wriiinf*
The ftatutc. of frauds and perjuries goes equally againft mak- ing a mortgajf^ of a real eltati without being in writing, as againft a purchafe, if not in writinjf, for as the laft can be no lien, neither can the other be a fecurity.
Faying of money has been always held in this court as a part- performance.
It is fworn pofitively in this cafe, that the money was applied for, and paid abfolutely upon the loot of the atrrcemcnt.
As to Mrs, Hases's taking notes of tlic defendant Mertins in- ftead of the money, the evidence being, that tliey were given on account of tlie purchafe-money, will take off the force of the cbjcftion.
It is faid It mud be fuch an aft done, a<? appears to the court Would not have been done, unlefs on account of the agreement; and to be fure this is right.
But as to the other objection, that it mud be certtwn at all events that the agreement (liould be performed even independent of the title, whether it can be made out or not, is carrying it too fifr, and would hold equally had the agreement been in ^^Titing, for whatever the title may be, dill Mr- Mertim would have had a lien upon the edate by virtue of the agree- ment. Wb«rc the If there is a leafehold cftate that is mortgaged* and no cove-
morrg:^5(.rof» ^^^^ ^^ ^j^^ pj^^j ^f ^j^g mortgagor that he will procure the lives Ki'/nottovi^-* ^o '^ fiJ'^^ "P> ^'^ mortgagee cannot compel him to do it, but jtantfd, that he mud pay the cxpcnce of renewing, and then reimburfc Kimfelf iTies^™ b*/ftncd ^y adding it to the principal of the mortgage, and it (hall cany up, the morf intcred ( I ).
jagcc may do it,
»fld on adding tbe eipencc of renewal tt tke principal of the mortgage, it dull c.rry intereft;
Upon the whole I am of opitiion that, upon all the circum* dances appearing in this cafe, the agreement entered into bc- t\*een FJizahrth Hay in her life-time, and the defendant Met' tins for tlie purchafe of the reverfion of her edate in Lincoln^ Jhire^ for the fum of 2400/. 10/. aiKl for the mortgage of the leafehold edate for lives in Dertyfjire^ for the fum of 1600 1. ought to be performed, and carried into execution, and d» order and decree the farrie accordingly; ** and do dire£l the <* MatUr to compute inrered on die 700/. paid by Mertin$
V'ri^lt, ante I vol. H- 499. Walker ^t, v. Half.y\ /^w.4. -86. It has bfcn held,
I4'alkery ante 2 vol. iQO. iJivi.t v. Dn- that m;*rriage is not a part performance
•;•//, I /^/. 82. Taylor v. Brtch^ ib'uL of a parol agreement. RfHUn^ v. Wilkes^
597. Potttr v. VafUT^ ibtd. 44 1. Lr-jf^/ v. 3 Rro. Cha. Rtp, 400. et "cidc DumJas v.
M.'iltr, 2 /\/. 299. H'hithrruiiv, Brock- Dutrr^, Tt/, junr. 196.
Urf^ 1 Br9. Cha. Rep. 404. 417. Gunter ( l) Vide MdnUin \\ Bally 2 rct'ft. 84.
«tQ
•4
In the Time of Lord Chancellor Hardwicki. ^
*' td Elizdhftb Hay at different times, towards his purchafc Lacon v. ** and mortgage money, at the rate of 4/, per cent, per atitu *^**'''*'»» " from the ref|>cftive times . of payment thereof; and the Maf- ** tcr alfo to take an account of die principal and intercft due •* to the defendant Mrs. Harris^ the executrix of Mrs. Dormer^ t 5 3 ** the reprcfcntative of Kirk the aflignce of the mortgage to ** Mofely^ and to tax her and JBady Bijhcp\ colts, tlie heir at '* law of Mrs. Dcrmer^ and decreed that Mertins (hall pay *' Mrs. Harris wh;it Ouli be fo fqund due for principal, in- '* tereil and cofts, and on fach payment, and to lady Bijhop ** her cofls, do order Lady B'l/Jjop to convey to Martins the ** Cilate in LiHcolnJbire ; ^nd further order that the defendant *' hUrtim do pay to the plaintiil*, the adminiilrator of Elizas •' heib Ht^y^ the r^fidue of the 1 600 /. after deducing what ** 0)«il be due to him fpr the 700/. and intcrelt ; and thereupon order Mrs. Harris to convey to Mcrtins the leafchold cltatc in Derhyjhire by way of mortgage 5 for fecuring the rjepay- •* mcntof the fum of 1600/. with intcrelt at 4/. per ctnt. fub- ** jcdt to a redemption by Degge, the heir at law of Eiixabetb ** Hay^ and after fncJi conveyance made of the Uttcohifhin ^d^t^f ** do order the pofiefllon thereof to be delivered to Alertins, and *' that be and his heirs do hold the fanrie againil Degge and his '* heirs ; and ic being admitted that there are but two liv^s now ^ fubCiling on the leafehold eftate, I order that Meriim be at *• liberty to renew the leafe thereof by adding a new life, and ^ that what ihali be paid by him for the line and diarges of fuch ** renewal be added to the principal money advanced by him on '' the fecurity of tlie faid cltatc, and l)e included in Li^ mort* ^ g3ge to carry iiitcrell in the like manner ( i }•
(f ) Reg, Lih, B, 1743. fbl. 95.
Ex parte Roberts in November^ I743» omongjl the lunatic Pditions, Cafe 3. . ^ S. C. port. 3cE,
Lord Chancellor,
THIS is a complaint upon iliefe grounds : -^^j^/^^^^ -^^-<
Firft, Mift)ehaviGur of the commiinoncrs. . ^ . jpj
Secondly, Milbchaviour of the jury. Z^- ^^^^^ ^ ^' J
Hiirdly, The finding of the verdift. '
As to the firft part of the complaint againft tlie commiffioners,^ it appears to be groundlefs and vexatious. ^.<^ ^r /Z^rryrr^'^^
As CO any miftchaviour in tlic jury the evidence is very flight, y^Jr/^^ A^^^ tod is intirely anfwered, for it appears that Mr. Robert's tounicl — - -^: ^
defired he might dii»e again with them. The other part of the petition defcrves more confideration. It is objected to as a yerdidt agaiult evidence, but I think [ 6 J t^«icis nothing fatisfattory in tlic ailidavits to induce mc to be of that opinion.
U .it is not againft evidence,^ tlien the next queAion is, in liat method it mult be gone into* I B 3 'Hierc
C|A S E S Argued and Determined
Ex parti Roberts
There can be no melius Inquirendum^ for that is only grantabl^ on the part of the crown; but where there is any mifbehaviouX" in the execution of an inquifition, it muft be examined into, and if the court fee caufe they may quafll it, and dired a new com- milTion ; but a melius inquirendum is for the crown, who cannot traverfe as the fubjeft can.
Where there is
any mlibeha-
v'lour in the
execution of an
inqufiicion oflu-
nacy, ihecou:C
upon examining
into it may, it ihey fee cau(e, qualh it, and dire€t i new commiflion.
[7]
But what ground is there for me to qua(h the prefent inquifi- tion? The commifTion was very folemnly granted upon infpec- tion, and what would be the confequencc if I fhould qualh it ? It is impoflible to have an inquifition more folemnly taken, and at laft no body would be bound by it ; this would be only putting the parties to an ufelefs expence.
The queftion therefore is, Whether there is any ground to do any thing, and what ?
As to the grounds, I do not fee fufficient from the affidavits, but from the fecond infpeftion I think there is; he has cer- tainly appeared much better than he did at a former infpeftion, and his appearance now does not prove him to be either a fool or madman, and it is not put upon his being an ideot.
Fitzherberfs Natura Brevium proves, that it is a common method to inquire by infpeftion after an inquifition returned, and there have been many cafes of that fort : but if upon infpc^lion the Chancellor is at all doubtful, there ought to be fome better method of determining it : and the St. of a Ed. 6. ch^'Z.feH. 6. feems to be made for that purpofe.
*• If any perfon be or (hall be untruly founden lunatick, fe^r, «* be it enaded, that every perfon and perfons grieved or to be " grieved by any office or inquifition fhall and may have his or •* their traverfe to the fame immediately, or after, at his or their •• pleafure, and proceed to trial therein, and have like remedy ** and advantage as in other cafes of traverfe upon untrue inqui- •* fiiions or offices founden.'*
But it was objeSed, that if the party is by law intitlcd to a traverfe, he had no need to apply to this court ; and that was my apprehcnfion when firfl it was opened ; but Sir John Cutfi cafe in Ley 86, 87. makes it more doubtful, whether he has fuch a right ; however, without the leave of this court the cuflody could not be fufpcnded ; and that feems to be the rcafon of the orders by Lord King in the cafe of Mrs. Smithie^ upon the making of the fecond of which (he appeared in court.
The queftion therefore is. Whether I (hall grant leave for the lunatick to traverfe or not.
Upon reafonaWc terms I am willing to put it in fome method of inquiry, and it will be for the advantage of all parties ; for if I grant the cuftody, the committees muft bring a bill to fet afide the fettlement which he has made of his eftate ; and Doc- tor Finney would have a right to mfift upon the validity of it, fo that an iflue muft be direAed to try it, and fuch an ifliie
The perfon
again ft whom
the cotnmifnon
oflufiacy ifTueiy
on the dif^'erenc
appearance he
snade upon a fe-
conii infpedHon,
was alluwed to
trafcife thk io^uifitipB, and the grant of the cuftody fiifpended tiU fivdMf order*
wouI4
in the Ttme of Lord Chancellor Hardvticke* 7
would be a greater expence to the parties than a traverfe, and ^f fti ' therefore I afked whether I>o£lor Finney would fubmit to be ^«>»**ti. bound by the traverfe ; for though it would be binding a^i^ainft Mr. Roberts^ it would not be fo againft Do£lor Finney as to the graiit of the cuftody of the land, who claims as a purchafer.
It has been objected, that great mifchief would arifc in cafe Ac grant of the cuftody fliould be fufpended, and it is faid that then there would be a traverfe taken in every cafe ; and to be fare great mifchief would arife if it fliouW be lightly come into by the coun, yet there are many cafes where notwithftanding tlic finding the court has fufpended the cuftody ; and there was a afc before me lately of that fort j and here can be no great in- convenience from fufpending it in the prefent cafe, for if any thing is done in regard to the eftate, it will a^idc the event of the traverfe ; however, left any ill ufe ftiould be made of it, I ftall fufpcnd it only till further order (i).
Mr. Attorney General^ has cited Sir Join Nappet'b cafe, Trm. Urm i o Ann* in which there was a traverfe, and Smiihie*% cafe in 1728, which was a motion for leave to traverfe by nttor^ ay, which was oppofed ; but he faid it was there agreed that a traverfe waa given by 2 Ed. 6. but that it muft be in prcprid perftnd 5 and Lord Chancellor ordered to be attended with pre- cedents, which he faid was only to fhcw in what way the tra- verfe was to be ; and afterwards many precedents were (hewn, but there was no cafe where an ideot had traverfed by attorney, though many where a lunatick had : therefore Lord Chan- cellor in that cale thought that it being the cafe of an ideot, fhc muft appear in pcrfon, which ftie did accordingly, and leave u-as given her to traverfe. Fide Stone's cafe in Tremaine's Pleas efdx Crown 653, a precedent of a tr.iverfe ; and for the doc- uiae of traverfing an inquiiuion, vide 4 Co, 54 b, the cafe of The Cmmnalty of the Sadlers\ and 8 Co. 168. Paris Stdt/ghtor*$ c^k. ittT. Jones 198, Shoiver 1 99. S.C. Skinner /\^^ S. C.
Vide 18 //. 6. by which there ought to be a month's time r o 1 between the return of the inquifition, and the grant of thecuf- L • -* tody, and land, in order for the parties to come in and tender fuch traverfe.
(1) Vide Ex parte Bamjley, poft, 184.. Ttnney v. Timiey^ November 15, 1743. /^^^^^^JX/^ Cafe 4. ^~^
A
Bill was brought for dower, the defendant the heir at law a hu&andinhii^ infifts that the huft)and in his life-time gave a bond in a }i^c timcg^vca:^^
----*'-- - - bond m truft
ccnain penalty in truft to fecure to his wife 41- o/. in cafe ftie tofecurc to hir^^!^ furvived, and that it was intended ;>t the time in lieu of dower, wife 400/. ^y ^ and that ftic acknowledged it to be fo, and offered to read evi- *" "^-^^ ^^ f"^:
n III Vivcdj parol cvi- ^^^
» I* cc of her acknowledgment. dcnce to fhrw it /
wjt intended MAe ttme ia lieu of dower and that tht wife acIcAowledged it to \% ft cannot be allovrcu, being withia ihctiKQCe Of UvM,% and peijuries*
B 4 Lord
\ Qaeftion was made in this caufe on the will of Scoref
8 CASES Argued and Determtned
^r'il^y* Loud Chakcillor,
A en** ai*^' * ^ ^^ of Opinion that parol evidence catinot be allowed in
fiMibrlwfi^?s* ^^^^ c^^^ 9 being within the ftatute of frauds and perjaries, and
nor a bar of that a general provjfioft for a wife, was not a bar of dower, unlefs
prdrld to^bl* fo • ^^Prcfl*^^ to be fo ( f) : In the cafe of Lawrence v. Lawrence (2),
but the words in Lord Somtrs held a devife of lands generally to the wife to be in
a bond to fecure bar of dower J it went up afterwards to the houfe of Lords, and
^.««.^^^^"^^® .^J!*^ the decree was rcverfed : in the cafe of Fhsarel v. L^gdaie^
f^^J^^r^ «nd maintenance 5 Geo^ I. Sir Jofeph Jekyllhtld the woxds in a bond to fecure a
f ^5?»^^^*^*]***"*^^*?'" fum of money tot her livelihood and maintenance was no bar of
^^ S^dwrw. * * " dower, Lord Chancellor King was of opinion that it was a bar
-^/ ^' of dower and faid it was within the equity of the St. of Hen. 7.
• — of jointures, and therefore rcverfcd Sir JfUfeph JekylP% decree (3 )•
(l) Reg. Lib. B. 1743. fol. 5«/ (3) I Fef. 55. S. C. Vide etiam
(a) 1 Ej. Jb. 218. S. C. Vide the Walker ^.IFalker, i Fcf. 54. ffWde r.
cafes cited in the note co GabsM v. Han- Warde, Amb. 299.
€ock, ante, 2 vol, 427.
t/^TZtr^ ^^lyf ^^^P^ ^d Others verfus Barker j December 15, I743j on a 2 e<, e^-« -^ ' ^^/' Rehearing.
S. C. iVef.63. ^
III.
U^^J^t^u^ /\ Barker, which was as follows : un]e(sbyezprcfs ** I givc to my fon Henry zVL my lands, tenements and here- word«oranecef «« ditaments, in poffeffion arid reverfion, freehold and copyhold !u!d S/ rSc ""* ** in *« P^^'^ of Chi/wicke, or elfewherc in the county of Mid- hoidi tquaiiy ** dlefex^ {which ( I ) copyhold lands I have furrendered to tlie ufc ' f hcrt hcUan cc ^f my Will) to him and his heirs,
Undi.
A parenthefis it ^^* Attorney General infilled, that all the copyhold lands notcoberejeacd pafled, and that the words in the parenthefis are fuperfluous, and S ^^'h ^^' '^^^^ ^^ i* *n abfolutc devife ; and the fubfcqucnt words may be to^crttlesor* rcjcfled, according to the maxim in law, utile per inutile non grammar a fen- vitiatur ; and in fupport of this doftrine cited Hob. 171, Marjh*t
eorapleiewSi- ^* 3'» 4'' ^^^^ 37^' ^^ '^^ *^ ^^"'^ fliould be of opinion not
oBciu ' to reje^ thefe words, then he infifts that they are large enough
^ ^ y ^o extend to all the teftator's copyhold lands^ and ought not to
\ ' J be rcftraincd 10 a part only.
(^a:^tJ!ttZ4 ^-t^i^^'^hojii} Chancellor,
^ ,^,/^i^«*X«^^^he firft queftion is, whether the words in the parcntheiis,
are to be taken as reftriftive of the firft words of the devife, and I
can take them no otherwife*
This is the cafe of lands devifed by general words ; if inftead of this the teftaZor had faid, I give my mefTuages with the ap- purtenances called tbt King qf BohemiJs head, that would have been a different cafe^ and I fliould have thought the fubfequcnt words a miftake only in the defcription*
ft) ft Ittna Lord jSMtvMrteid gmt ftrrft upon tiiis relative proAoon <»;^/Vi. See * iFff. 64.
But
a
m the Time of Lord Chancellor Hardwickb. j^
Bat when a man does not make a certain definitive deicrip- GAtcoxciri r. tbn, it 18 very difficult for courts of juftice not to conftrue the *-**««•• fubfequent reilridive words, as explanatory of the former.
As to the cafe in MarJVs Rep. of tidies, it is not £milar to diis, for if they had conilrued it otherwife, the will mu(l have been abfolutely void : fo lakewife in the cafe in Dycvy where a man devifes his meiTuageSj late Richard CoitotCs^ t^c, if the court hid fafiered the miftake to prevail^ it would have made the de^ vife void.
But here the conftruSion I make will have an tStSt as p p&rt of the copyhold landsj which are a£luaUy furrendered^ though not as to the whole.
The cafe in Cra. Car. Cbambirlaln verfus Turner 129. does not come up to this : *' I devife the houle or tenement wherein " WiUiam Ntchoih dwclleth, called the White Swan in Old " itreet^ to Henry Gallant ^ my daughter's fon, for ever \ and " die queftion was, whether all the houfe paifed or the entry, " and thofe three rooms which were in IVilliam Nichollj*s pofTef- *' don only ; and three judges were of opinion that the whole « houfe paflcd.**
I wonder how it held fo much debate, for the previous part of the defcnption being true, it was of no confequence if there were twenty other lodgers, as fyHUam Nicholls lodged there Bkcwife.
An obfervation has been made on it's being in a parentheHs^ d>at the fentence for this reafon is independent and complete vidu)ut it, and therefore this may be reje£led as fuperfluous.
It is true with regard to the niceties of grammar, the obfcr- [ 10 1 ration may be right in fome inftances. '
fint in legal cafes a parenthefis is not to be reje£^ed : befides, there arc many inftances in the common kind of writing where commas only are ufed inftead of a parenthefis, tiierefore this may be laid out of the cafe.
But what makes it ftill ftronger, there is a plain reafon here for a parenthefis.
Bccaufe in the former part of the devife the tcftator had coupled the words copyhold and freehold together, and therefore he was under a neceflity of throwing it into a parenthefis with the repetition of the word copyhold.
So that the authorities do not come up to the cafe made by Mr. Henry Barker the devifee, for thofe cafes are all in giants.
I have a doubt whether in , the cafe of grants the conft'ruc- tion is more ftri£l than in will», for if a man grants to another fuch and fuch houfes in the occupation of ji. B. and C and aiterwards excepts the houfe in the occupation of B. the ex- ception is void, becaufe they will rather rcjcft the fubfequent acepdon entirely, than the grant itfelf ihould be void.
This 18 a queftion between an heir and devifee, and an Iteir ii not to be difinherited unlefs by exprefs worils, or a neceflary inylication: and I know no diftxndion from this rule where the 'is an ieir of ctiftomary landj, any mure than whore he is of
The
lo CASES Argued and .Determined
Ctiscotciii t. The great objeftion, which has fomc weight, is, that there
BABitt. j^ pjj^^ Qf jj^g {atnc inn or houfc which has been furrcndercd :
and if the tellator had defcribed it by name, I fliould have been
of opinion the whole would have pailed though part only had
been furrendcred.
But it appears by the furrcnders themfclves, which were at diiFcrent times, that part of the inn was not bcuglit till fomc time after the firft furrender, and therefore this facl clears up and explains the intention of the teftator.
So that the court mud make fo many ftrstches here* in order to difinherit the cuftomary heir, that it is much l)etter to let the words have tlieir plain and obvious meaning, though the defendants are younger children, and claim it as a provifion.
The decree muft be affirmed (i).
(i) Jn Banks r, DenJ^tre, I Fe/.6^. in this cafe (Nvhich frems to have been
^/l. 585. Lord Harti*wicke obferves, the ground of ihc determination) ap-
that he determined the above cafe rcla- pears to differ but very flightly from that
live to the king of Bohemians head with in Banks v. Dcjijbhe^ Vide Allen v»
great telu^ance. Indeed the parentheiis PwltoUf l Fff, izi.
I ^^ 3 Lo%fel/ vcrfus Lovell^ November 23, 1743. Cafe 6.
Tht furrender «>f 0 H N Lovell furrendercd to fVilliam Lovell^ brother of
eLtSmmfthave J 7^^^ Lovell^ the copyhold premifics in qucftion, until Tho-
the fame con- ^^^ Lovelly fon of Aalph Lovellj and brother alfo of John Lovell^
ftruaionwith ftiali attain twenty-one, and after fuch age to the fiid Thomas
lswir"aod'othcr -^^^^U ^is heirs and ailigns for ever. Signed Jc^hn Lovell^
conveyances,
"m*^^ *J • Indorfed, by iagreemen*- between John and William Lo^^elly that
the lin^utioni '^^ ^^^^ William Lovell is to fcceivc the rents, ^c. until Thomas tifz copyhold attains twenty-one, and then to account to him for the fame, but
aie foframe^, a, ^^j htioXQ. J. Lovell.
%y the rulei of ^
law they arc W. LovelU void, they muft take their fate, and no tnteotlon can make them good.
John died the 19th of November 17 15, without iflue, leaving William his eldell brother and heir, who enjoyed the faid pre- mifles till the 16th of January 17-^4, when he died ; Thotnas the f(in of Ralphy and brother of the plaintiff, died an infant the 1 2th of March 1 7 1 5, without iffue bef^e the plaintiff was born, fo that the faid Thomas Lovell deceafed having no brother or fiftcr born at his death, and being then about nine months old, William Lovell deceafed was his heir at law likewife.
Thomas Lovell the furrcndercc dying before he attained twen* ty-one, the queftion is, whether the phiintiff as brother of Tho* mas is intitled under the furrender of John Lovell to an account of the rents, fa'f. fuch conthigency as in the furrender never happening \ or whether the defendant William Lovell deceafed, as heir to the furrenderor, is not intitled to both •, or whether the eilate is not liable to an account for the profits, and to whom.
Mr.Ao-
in the Time of Lord Chancellor HARDVicKt. 1 1
Mr. Attorney General for the plaintiff cited Borq/lon*s cafe, I-ovtii- ▼* 3 Co. 20. and Taylor verfus Biddall, 2 Mod. 289. I-ovii.*..
Mr. Brown for the defendant cited i Leon, i o i . and Mr, F^rJ of the fame Cidc cited Idle verfus Coke, Sa/k. 620. (ij, and Cro.
Lord Chancellor,
As this is the cafe of a copyhold, no other conflru£lion can be m^ile, but what arifes on that kind of conveyance.
As to the real intention of the furrenderor, it is pretty diflScuIt to maintain what the plaintifPs counfcl contend for, that though Thtmfis the infant was but four months old, the furrenderor in- tended to diveR himfelf of the whole eftate, and give it in fuch a manner, that notwithftanding the infant died the next day, [ * ^ 3 it vould ^o to his heir though ever fo remotely related to the l\xmMtxor,
The furrender was never pcrfeftcd, for in one rcfpeft the bill is brought for that purpofe, and upon the circum (lances of this cafe, there is no occaGon to make a drain in favour of the plaint; IF.
But be this as it will, the words as they now (land, and the legal effcd of thofe words, muft have their avail.
I wHi take it firft upon the words ab(lra£led from the me* morandum.
It has been infilled on, that though Thomas the infant died at nine monthh old, yet the edate vefted in him, and that it was a difpofition of the inheritance to him immediately, and only a chattel intered in the uncle, till the infant might attain his age of twenty one, though he died at nine months old.
As to the cafes cited, Bornjlon'^^ and Taylor v. Biddall^ they were both upon wills, in which there is great latitude of cgn- ftruftion, to comply with the intention of a tedator ; and in Baraflon^s the principal point (for it was not merely an auxiliary argument) was its being a computation hy the tedator for pay* ment of debts, and Taylor verfus Biddall is upon an executory dcvifc ; for I had a very particular reafon to look into this cafe in Stiphens verfus Stephens (2), and therefore fent for the record out of the treafury : not truly dated in the report of the cafe, for the other point mentioned in the book could not arife, being determined merely upon an executory. dcvife.
Surrenders of copyhold edates are to be condrued as deeds and conveyances at common law, and not as a will \ and as Mr. Ford faid, a fpringing ufe in a copyhold edate would be condrued as a fpringing ufe in a freehold (3).
If this had been a limitation by deed of an edate at common law, as Thonias died before twenty-one, it cannot be fupported, that the edate to Wtlliam fliould continue till Thomas might have attained his age of twenty-one,
(1) I P. ^- 70. S.C. (3) But copyhold edares arc not with-
er) Ca.imp^Taih, aa8. S, C. in the ftatu:c of ufcs. Ridden v. Faliicr,
2 re/, zsj.
If
12 CASES Argued and DctcrmmcJ
o^
LoviLL T If limitations arc fo framed, as by the rules of law they «%
LovxLL. ^,qJj^ jj^gy ^^yjj. ^jjij-g iijgj^ fj^^g^ ^jjj j^ intention can make
them good. To fuppirt a To bc fure there is a difFerence between requiring an eftate to
fiondmeir.re- fupport a Contingent remainder in a freehold, and a copyhold, fr^cJ^id *there * bccaufc in the former there muft be a tenant of the freehold muftbcateiunt againft whom VL pracipi msLy be brought, but copyhold lands arc of th« freehold not held of the manor, but are parcel of the manor, and the /^">rS-"bc* freehold is in the lord, therefore no pracipe can b« brought brought j other- againft the tenant of a copyhold.
wife as CO a co- pyhold, for there a* fraclpt can be brought, bein^ parcel of the manor only, aa4 tke 6«c* fluid Uk the W.
[ *I3 3 But I know of no cafe, where there is a limitation of a copyw hold in the manner it is here, that it has been conftrued to be good.
As to the indorfement.
This is no more than the declaration of the truft of the pro- fits to WiUimn for Thomas^ and not for paymfznt of debts, or 3iny other purpofe.
I think this rather turns againft the plaintiff, becaufe it takes it outof the reafon of Borafton^s cafe : for there the teftator had made a computation that the profits would clear his debts by tKe time his fon attained the age of twenty-one, and therefore uotwitiiftanding he died before twency-one, the court was of opinion, it ought to continue till he might have attained his age of twenty-one.
But here IFilliam Love!! could not be accountable to any heir of Thomas Lovell^ io£ William by the memorandum is e^cprefsij direded to be accountable to Thomas only. *
Therefore, as this differs from Boraflon^s cafe, and as it is not upon the conftrudlion of a will, and as the furrender of copyhold cftates is to have the fame conftruftion with feoff-* ments at law, and other conveyances, therefore I muft decree for the defendant, the heir at law of William Lovelly and dif- mifs the bill of the plaintiff, who is the brotlier and heir at law of Thomas^ but witliout cofts«
Q^^ j^ Lawion verfus Lstwlon^ December 14, I743»'
4 fee engine fee T^ H E material qucftion in the caufe was, whether a fire up fox the be- X engine fct up for the benefit of a colliery by a tenant for J^b^aunant '*^'^> ^^ ^ conlidercd as perfonal eftate, and go to his exc-* toriife, ftaiibe cutor, OT fixed to tlic freehold^ and go to a remainder-man.
ccnfidered at
l>a«w or hit perfonal eftate, and go to the executor, fqr the increafe of alfeU ia fivojir of ertdiinn.
^ jy n/J, There was evidence read for the plaintiff, a creditor of die
^' tenant for life, to prove that the fire engine was worth, to be
fold| three hundred and fifty pounds » and that it is cuftomarip
to
in the time oF Lord CliancclloTf HARDwtltct. ^ j
to "remove them ; and that in building of flieds for fecuring the ^^'^*^^^^^' engine, they leave holes for the ends of timber, to make it more commodious for removal, and that they are very capable of ^
l)eing carried from one place to another (i ).
That the teftator, the counfcl for the plaintiff faid, was dead, [ 14 J . greatly indebted, and it would be hard, when he has been laying ^^^^^^.^^^ out his creditors* money in erefting this engine, that they fliould ^
not have the benefit of it, but that the drift rule of law fliould ^,//^^-^.
uke place. "" r> 1/ ^ ^/// '
Mr, U^dbraham compared it to the cafe of a cyder mill which^^^-'^^^ ^ '" IS let in very deep into the ground, and is certainly fixed to the p ^ *
ffeehold; and yet Lord Chief Baron Ccwy///, at the affizes at^^^^^^jW^ iVorceJler^ upon an aft ion of trover brought by the executor '>^54^^^<^^^>-. againft the heir, was of opinion that it wm perfonal eftate, and^^^^^;^'*^^* 4^ dircftcd the jury to find for the executor (a). y^ y ^
Evidence was produced on the part of the defendant, to fliew "^^^ y%J^ that the engine cannot be removed without tearing up the foil, ^^ CMt^>^ ^ and deftroying tlie brick work. . /^i-^y^^y^n^
Mr. \llark of counfel for the defendant cited Fi/tcbj foL j^S^ y Z^y under the head oiDjftrcfs: and the cafe of IVortlcy Montague y.j ^ ^ "^^ .^ Sir James Qaveritig^ about two years ago before Lord Hard%vicke» ^ ^^
Lord Chancellor, .'
This is a demand by a creditor of Mr. Laivtofij who fet up the fire engine, to have the fund for payment of debts extended 2is mucli as poiIit)]e.
It is true the court cannot conftrue the fun5 for affets, further than the \zvf allows, but they will do it to the utmoft they ca» hi favour of creditors.
This brings on the queftion of the fire engine, whether it fliall be confidered as perfonal eftate, and confequently applied to the increafe of alTets for payment of debts.
Now it does appear in evidence, that in its own nature it is a pictibnal moveable cliattd, taken either in part, or in grofs, before it is put up«
- But then it has been infilled, that fixing it in order to make it work, is properly fl/i annexatiotiio the freehold.
To be fure, in the old cafes, they go a great way upon the The oTJ cafct mnnexation to the freehold, and fo long ago as Henry the Se- go a great way vcnth's time, the courts of law conftrued even a copper and T"^l^lT''"
-. , /*irtit mticntQ tnc tree •
furnaces to be part of tlie freehold. hold ; buc court»
oi late have re- laxed this ftnSt condrudiAn of law> to cncoofige tenants for life to io what is adTaoiageQus \m the cftatc during their t^tin.
Since that time, the general ground the courts have gone upoit of relaxing this llrift conftruftion of law is, that ic is for the
(l) It appears from the anfwcr of (a) This cafe in all probahHity turn-
tt*Urt LatvfOft the remainder-man, that fd upon a cuftcm. Pp LordMarsfitWm
the tenant for life had ereded a build- Larjitom v. Lawfo*ty cited in the note at
ing, which was covered in : and that the end of this cafe of Lawton v.
fhit bmldiog was merely l%t the ufe^of Lavton. Xhc engine.
benefit
IJ CASES Argued and Determined
^dwT^J* benefit of the publick to encourage tenants for life, to do what k
advantageous to the cftate during their term. To remove What wodld have been held to be wade in Henry the Se-
^"i^^b^V^"** venth's time, as removing wainfcot fixed only by fcrcws, and !^/ nLbic^*' marble chimney pieces, is now allowed to be done*
chimney pieces is not wafte.
Ltodloids have Coppcrs and all forts of brewing veflels, cannot poffibly be
toln cVpers'^and "'^^ without being as much fixed as /re eftginesy and in brew
brewing vcfleli houfcs crpeclally, pipes mud be laid through the walls, and
againft a tenant, fupportcd by walls J and yet, notwithftandine this, as they
« they were laid ^^^ * t c i\. • r i i i. • ** ... t /
Ibrtheconveni- ^rc laid for thc convenience of trade, landlords will not be al- cncc ©t* trade, lowed to retain them.
This being the general rule, confider how the cafe (lands as to the engine, which is now in queftion.
It 13 faid, there arc two maxims which are ftrong for the rc- maindcr-man : FirJ}^ That you (hall not deftroy the principal . tiling, by taking away the acceiTory to it.
This is very true in general, bu does not hold in thc pre- fent cafe, for the walls arc not the principal thing, as they are only flicds to prevent any injury that might otherwifc hap- pen to it. '
Secondly^ It has been faid, that it muft be deemed part of thc cftate, bccaufc it cannot fubfift without it.
Now collieries formerly might be enjoyed before thc in- vention of engines, and therefore this is only a quellion of majus and minus, whether it is more or lefs convenient for thc colliery.
There is no doubt but thc cafe would be very clear asbc- tvvccn landlord and tenant.
It is true, the old rules of law have indeed been relaxed chiefly between landlord and tenant, and not fo frequently be- tween an anccftor and heir at law, or tenant for life and remain- der-man.
But even in thefe cafes, it does admit the confideration of puWick conveniency for determining the queftion.
I think, even between ancellor and heir, it would be very hard
that fuch things fliould go in every inftance to the heir.
f |6 ] One rcafon that weighs with me is, its being a mixed cafe
between enjoying thc profits of the land, and carrying on a
fpccics of trr.dc ; and, confidering it in this light, it comes
very near the inftances in brcwhoufes, ^r. of furnaces and
coppers.
Tho' cyder Is 'I'hc CMC too of a cyder mill, l>etween the executor and thc
part of the pro- j^^jj. nTiCntToncd by Mr, W-llrahamy is cxtrenu-ly ftrong; for fits of the real , , , . -' ^ , ^ > i • i\ •
eftatc, it has though cyder IS part of the profits of the real eltate, yet it was beer, held thit a held by Lord Chief Baron Cotnyis^ a very able common lawyer, ^erf nT/not' ^^^^ ^^^^ cyder mill was perfonal eftate notwithftanding, and that wi'.hftunding, it fliould go to the cxccutor.
andrhaUgoto Jt does not diflVr it in my opinion, whether a (lied over fuch
•nd not the heir. *" engine br made of brick or woodi for it is only intended to
' cover it from the weather and other inconveniencics*
This
in the Time of Lord Chancellor Hardwicm.
i6
This is not the cafe between an anceftor and an heir, but an intermediate cafe, zt Lord Hobart calls it, between a tenant for tfe and remainder-man.
Which way does the reafon of the thing weigh moft, between a tenant for life and a remainder-man, and the perfonai reprefen- tative of tenant for life, or between an anceftor and his heir, and the perfonai reprtfentative of the anceftor? Why, no doubt, in favour of the former, and comes near the cafe of a common tenant, where the good of the publick is the material conGdera- tion, which determines the court to conftrue thcfe tilings per- fonai eftate ; and is like the cafe of cnibUmrnts^ which (hall go to the executor, and not to the heir or remainder-man, it being for the benefit of the kingdom, which is intercfted in the pro- dace of corn, and otlicr grain, and will not fafFer them to go to the heir. v
It is very well known, that little profit can be made of coal- mines without tl/is engine 5 and tenants for lives would be dif- couraged in ere£ling them, if they muft go from their rcprefeu- tativcs to a remote remainder-man, when the tenant for life might poflibly die the next day after the engine is fet up.
Thefc reafons of publick benefit and convenience weigh greatly with me, and arc a principal ingredient in my prefent opinion.
Upon the whole, I think this fire engine ought to be con- fidered as part of the perfonai eftate of Mr. Lawton^ and go to the executor for the increafe of alFtts ; and decreed accord- ingly (i;.
Lawtow t.
La-WTO}!.
EmUemcnts ihali go to the executor, and not the remain- der-mm, the publick b'inf interefted in the produce of core and ochcr grain.
Reafoni of pu^ lick benefit aai convenience haTc {reat^ weight.
(l) Reg. LiB. B, 1743. fol. 151, There were certain other engines fixed upon fait worlcs by the father of the te- nant for life, the teilator. Thcfe cn- g^es were decreed not to be the perfonai cUate of the teiUior.
The old and general rule o* law feems to be, that whatever is fixed to the freehola becomes part of it, aad cannot .be taken from it. Co. Lift. 53. fl. Brc. H'aJit.pK 1 04. 143, Cookers cafe, Mjore 177. HcflakcK- iUn't cafe, 4 Co, 64. a. Day v. Bijhltch, Cro. Ehz. 374. Ca*ve v. Ca\% 2 f^em. 508. CuUing v. Tujnal^ Mull. N. P, 2^' But of JRic years there bavc been two exceptions to this rule. The BtR, is between landlord and tenant; the latter of wh:.m m.iy take away dur- ing the term all /uch chimney pieces, wainfcox, i^c. and all fuch things ne- ccfiary for trade, as brewing vcflels, coppers, fire engines, cyficr mills, ^c, • as he has himfelf put up or crcded.JBut fuch removal moll be ivi/h:ti tbt te^m^ oiherwife he will be confidcred as a tref- pafier. The (econd exception is between
tenant for life or in tail and tlie r^v^* fioner or remainder man. The former may remove fire engines, cyder milk, coppers, Wr. which he has ereded, and by which he not only enjoys the prolits oftheellate, but carries on m /pedes of trade, And if he does not remove then in his life-time, they go to his executor. The rule however Hill holds as betweea the bcir and executor, PooU^h cafe, z Salk, 36S. Ex parte ^incjf^ ante i vol. 477. Dudley v. ^ard^ Ar.lf. 1 1 3 . Bull. N. f. 34. S. C. cited. In Lai^vton v. Lawton^ B. R, Eafter zi Geo. 3. An action of trover was brought by the plain tiffs at admin id rators of Robert La^wton^ againA the defendant for certain fait pant, which were put into wychc houfcs in Ch-Jhlre, The pans were brought in in pieces. The wyche houfcA arc of no ufe without the pans, nor is the brine of any ufc without them. There was room for the workmen to walk round them within the building. Tho pans were fixed by brick and mortar to the floor of the building ; and there .'was a furnace under it. The building had lodging rooms at tht crf<l
s^
CASES Argued and Determined
of it : Which building with the pans let for 8/. a week. The quellion was, whe- ther thefe pant wei^e to go to the exexuttr or to the heir. The anceflor was feifcd in fee. Lord Mansfield delivered the opinion of the ceurt. All the old cafes (and there are fome to be foand in the ^ear-books) lean in favour of the hgirx mnd fo rigidly^ that if a tenant was to put up a wainfcot or pi£>ures let into the wsunfcot, t^c. he could not take them away. There has been a relaxa- tion of two fpedes of property, the one between latidloKd and tutant^ as marble chimney pieces and things, which are ne- ceflary for trade, &c. ; and in the re- moval of thefe* there is no hurt to the landlord. The tenant fays, I leave the premiiTes juft as I found (hem. The other fpecies in which there has been a relax- ation is between tenant for life and the teraainder-man as £re engines, Uc. The tenant for life will not ere6t fuch things* unlefs they can go to his exe- c«itor. But I cannot find any cafe (ex- cept that about the cyder mill, (ctfupta 24.) where there has been any relaxation
between the biir and executor. That caft mod probably turned upon a caftom. Now confider the prefeYit cafe, which is \tx^ (Irong. A fait brine in the count/ of Chtfbirc is a moil valuable inheri- tance. But there is no enjoying the in- heritance without the buildings .ind fait pans. They are of no ufe but f6r that purpofe, and the inheritance it of no value without them. To the executors they can be worth no more than old iron and old bricks, if taken away. Here the anceftor ere£led them at bis own ex* pence on his fee fimple. It is impoffi- ble* that he fhould mean them to be fevered at his death ; for they are worth nothing to an executor, and ^txj valua- ble to the heir. It wonld have been a \txy different confideration, if this fait brine had been let to a tenant* who had erefled thefe pans. There he might' have faid, I was at the ex pence of erect- ing them, and therefore my executor fhould have them ; and I leave the efiate as I received it. Therefore we are all of opinion they go to the heir* JadgmeAt for the defendant.
f «7 ] Cafe 8.
December 17, 1743. Pleas and Demurrers.
A Bill was brought to fet afidc a will for fraud, on fuggei^ tion the teflator was incapable of making it, by being perpetually in liquor, and particularly when he executed the will^ and likewife for a receiver to be appointed.
A plei t»
^11 brought to
lee afide a wiU
fox fraud, and
ior appointinf
• receirer, aU
l«wed at to the firft part, and difallowed as to the latter.
The defendant pleads the will was duly executed, and that it ought to prevail, till upon an iiibe at law it fhould be found to be otherwifc, and that, as he was in pofleflion under the will, a receiver ought not to be appointed till the vali^lity of the will was determined. Lord Chancellor,
The plea muft be allowed, for you cannot in this court fet afidc a will for fraud (1) ; but as to a receiver, I muft difallow iwr the due exe- it, for I wiU not tie up the bands of the court, if in the •ri^e ttilw F^grefs of the caufc it fliould be neceffary to appoint a rc- ^*iy. * cciver (2).
Thii court can* not fee afide a wiU for frauds
(1) BenitU IT. Vad:^ ^nte i vol. 3*4-
(a) Fide Knight r. Dm^^lejfis^ t F^. 360*
A
Sn the Time of LorJ Chancellor Hirdwicke, ly
December 17, I743» Anonymous » Cafe 9*
Bill was brought for difcovcry of title deeas, and relief ^^*='*»'»'^^ prayed Ilkewife. i:.«^e.
rff an affidavit muft be annexed that the plalatiffhai not the 4eedi in his cuftodj
The defendant demurred that upon the plaintiiFs own fliew- ^'^^ *]• ^^''^^^^y* tng none of his anccftors have been in pollcfFion for the laft /^ <^l*^y>w .^/ forty years, that it was a matter triable at law, and that there was no affidavit annexed, that the plaintiff had riot the deeds in his cuftodjr.
The Chancellor allowed it on the lad caufe upon the common courfe of the court, that where a bill prays rclitf, as well as difcovery, an affidavit muft be annexed tliat the plaintiff has not the deeds in his cuftody (O,
(1) So IFhiuhurch v. GoUin^, 2 A /A^. 541. Dormer v. rorfr/cue, pofl, 132^
Talhot V. May^ December 17, 1743. Cafe 10.
THE bill was brought for tithes of a mill, and a pica of Where theown- a modus of 6x. 8 d. for the mill, when it was part a corn- •^of »'» an«cnt tniU, and part a fulling-mill. Uxr,t roof thinlw
\ proper to crcdk
two nsw wheels, they are to be confidered as two inills> and tc \bJll brought for the tithe, he cannot* Mver thdi with the fame mUut (i).
In lyip, the fulling wheels were taken away, and a pair of [18 mill-ftoncs put in the room, and has been ever fince a corn mill.
Mr. Attorney General for the plaintiff!
It was anciently a fulling-mill, and the corn-mill and tlic
fulling-mill is now under the fame roof, and the modus cannv)t
' extend to cover a new creeled mill, for as it is altered to a
corn-mill it muft pay tithe in kind. I Mr. Hamet of the fame cited i RgIPs Abr. 66i. 3 Ruijlr^i 12. ' I BrcwnL 32. Cro. Jac. 523, and the cafe of Nut v. Uoamber^ lain, heard firft in the exchequer, and afterwards in the houfe of Lords, where it was determined that every water corn-mill, muft pay corn as a perfonal tithe. Mr. Talbot of the fame fide cited i Ro/Ps Abr. 656. The counfel for the defendant infifted that the m^dus covers the mill, let the engine of the infide conlift of wheels or of (tones, and therefore changing the working part makes no varia- tion, but the modus will ftill cover it as a mill, though of a dif- ferent kind.
(0 Sec Crimle^ v. Fauliingham, 4 Mid. 45.
Vol. in* C Thcjj
1 8 CASES Argued and Determined
Taliotv. They cited i RolPs Ahr. 641, and 2 Injl. 490. That adding
^^^* new ftones to ancient mills will not alter the modus^ nor defiroy it, where the ftones are under the fome loof: they cited Carth. 215.
Lord Chancellor,
The plea in this cafe muft be confidercd both in refpcfl: to the form and fubftance, and upon cither it cannot (tund, for as it is not adidem^ it is impofTible to know to what it is applicable.
Here are three mills charged by the bill to be working mills : the defendant pleads a niodus to one only called Birdlep milK
All of them at prefent are ufcd as corn mills, and therefore the plea is quite uncertain, if this point could be laid afide, which I cannot do, confidcr it next upon the fubftance.
I will confider them as two new corn mills, but under the fame roof.
Suppofe firft an ancient mill under a building worked witli one wheel, and the owner under the fame roof think proper to ereft two new wheels, and two new ftones, I am of opinion this is to all intents and purpofes two mills, and lie cannot cover them with the fame modus 5 you might as well fay he might ereft an- - - other mill upon the fame ftream, and call it one mill. Where there are Suppofe two ancient mills in the fame parifli which paid two ancient tithcs in kind, and another milk-r who had a fulling mill cover- cwnmiUs inthe ^^j ^jtlj a modus ftiould tum it into a corn mill, it would pre wSch paid judice the parfon in the other mills, as the new erefted one tithes, and an- would diminifli the trade of thofe mills, and the parfcn fuffer- *'*'h*''h"d^^7ui- *"S ^^7 thofe means ought to be recompcnfed by the payment of iTng mill cover- tithe for the mill fo converted.
«d with a ncduSi .ftumeJ it into a corn mill, the isuiX ib cuA verted ik^^l paj tuhe.
The reafon the cafes go upon, why a modus is deftroyed where two ftones arc ere£led inftead of one, is, becaufe the mil- ler can grind a double quantity. Where two fui- Confider it in another light, formerly there were two fulling* liogmilUand a mills, and a corn mill under the jamcroof, and the fulling-mills InTe^hcamc "^^ tumed into two new corn mills, this is juft the fame thingr tiW, and the as if he had erecled two new mills.
fulling miiU are
(uraed into two new corn miUi, they art become two new mllli,
A fulling mill The fulling mills can only pay a pcrfonal tithe, becaufe it Is
meofluade,*' ^"'y 1" ^^^^ "^^"^^ ^f ^ ^'^^^c* l^ut where tlicre are corn mills,
paytonlyaper- cach is to pay a tenth dlih.
fejul lithe. In this cafe, thus much muft be fliewn, that there was a cuf-
torn in this parifli for fulling-mills to pay tithes, or otherwifc
they do not properly pay them.
The only colourable thing is, it was an ancient modus for the
land, and that the mill is but an accidental quality.
But it is not pleaded for the land only, but as a con«
junft modus both for land and mill too, and therefore let the
pica be over -ruled.
In the Time of Lord Chancellor HAkDwiCKC* tp
w
Tl>e Loft Seal befcrt Chrijmas 1743. Cafe ii.
ITH regard to taking exceptions to anfwers, I have Um STicigelmM . . laid down this rule to myfelf, that if an anfwcr comes «««»««. «fwcr
m m m,. t , ii i*«rt»i 1 comci III, and
in, in Michaelmas term, and the plaintin does not take excep- the pUi ■tiff do€t tions within eight days of Hilary term, upon applying to the aotukccxccp- court, lie is of courfc intitled to take exceptions, provided he ci^ht dlyiof does it within two terms, the term in which he* moves it inclu- HiUryttrmzf* five ; and if he neglcfts to do it then, the court will not give ^^\ y«^ <«^*P- kavc but upon particular circumftances. Jou^f he i/in-
ticled to Uke ciceptions, proidded he doei it within two terms, the term la which he moTes inclufiTt*
S^d vcrfus StmmonSf January 21, 1 743, among the Petitions [20]
in Caufes. Cafe 1 2.
TH £ defendant was executor under the will of a perfon So much of t who had left alegacy of 500/. to the petitioner Mrs. Bond fon^r order at before her marriage with her late hufband, who notwithftanding he p^aJ^t of the Jiad received at different times, at lead 2000/. from other parts of fum of 12a/. his wife's fortune, never could be prevailed upon to make any fet- '^^** J^fj?^* tiement or provifion for the wife ; upon which the defendant, the huAandmaft b« uncle of Mrs. Bond^ refufed to pay the legacy into his hands ; d»fckargcd, and and the hufband, about the year 1734, brought a bill for the I^*bf7a!d''SfuJt legacy : the court referred it to a Mailer to receive propofals from petitioner, the hufband for a provifion for the wife •, the Mafter certified the ^ /^^.^v^^ hufband had never laid any propofals before him ; upon which, on ^^ ^^^ .^
the petition of the defendant to be eafcd of the burden of iliis dc- S ^^^^' ^^ mand, the court on his offering to pay in the money, direfted ^y^^^/^f, -. iY^^ the Accountant General to lay it out in South-fea annuities iot/ /^ i^^T^r// - the benefit of the hufband and wife, fubjeft to the further direc* ' ,'^- - -- tions of the court. ^ ^ ^/^<r^^-;f^^
The dividends and produce of the annuities amounting now/ ^j >^ ^ ^ to 122/. 15 /. T d. the hufband being dead, his executor infift- ^/^^^\X^'^ ed, that though it was a chofe in oElion of tlic wife's, yet by the /JV^-
decree, and tlie order on die Accountant General to lay it out y'T^: ^^^,^ asaforefaid, the property veiled in the hufband ( i ), and he was ^^'^ ^T-^ ^ mtitkd to the principal, and likewife to the intereft made of the ^ - '^^--^^^ annuities, in confideration of his maintaining his wife in the ' ^'^ ,
meantime. ^ y^ y1^^^^^ ' ^^ '
Upon a petition to the Majler of the Rolls ^ he was of opinion \ >
for the wife as to the principal, but thought the rt^xtitnu^ ^^f^"^ ^ ^"^^^^ ^ of the hufband intitled to the dividends, and ordered it ^ /^^r^^^-^ accordingly.
(1) Fide the cafes dted ia Lan^y v. AtM, ante 2 vol. 448*
C a l\ fr
20 CASES Argued and Determined
BowD ▼. It canic on now before the Chancellor in nature of an ap-
SiMMoMt. p^^j £^Qj^ ^j^g Q^.^1^^ ^f ^1^^ Mnjt^r of the Rolh^ in which the
plaintiff -^/rtr^j/v/ Bond preferred her petition to the Lord Clian-
cellor, praying that fo much of the order of the 29th of Ncvem'
bfr 1743, as directs the payment of the fum of 122 /. 15 /. 7//.
to John Bond, may be difchargcd, and that the fame may be paid
to the petitioner.
Lord Chancellor,
Had the l«|Ky If this five hundred pounds had been the only portion of the
httn the only wifc, I (hould have bceu of opinion the hufband in his life-time
^T^^uli^c would have been intitlcd to tlie intcrcll for her maintenance, but
wire, the hui- 11. /-iii . »^i 1-
kawlwoaWhiive the wifc has brouj^ht him a confulcrablc portion bcfidcs, no Ids
bee« intitlcd to ^^^ two thoufaiid pounds, a$ appears bv affidavits.' IhJ'^ntc- •Tl^e hulband has ufcd her fo hardly, that he has left her
aaoce. nothing but only her own freehold cflaic, which he could not
[ *2i ] debar her of. Whereahuf- Suppofe at law a hufljand had recovered a judgment for a debt
^Tmen^^ftw* ^^ tlie wife, and had died before execution, tlie wifc would
tiHewife'sdebt, Have bccn intitled, and not the hufband^ executor.
and diet before
ciccatioiiy flic ii Intitlcd, and not liii executor.
Here the hufband wa«? fo obftinate he would not perform the terms of the decree by making a fettlenicni, fo that upon appli- cation to the court they ordered the moiity to be put out by the truftces for the benefit of the hufi).nid and wife, fubjefl: to the further order of the court, without laying any thing of the ap- plication of this money. Where ihuf- Suppofe where a hufband lias received a great part of a wife's band has rcceiv portion, and only a fmall part remains, and the hufband is fo «d a grrat part pcrvcrfc he will not make a competent fcttlcment on the wife, the tion,^xndrc^fea coiirt Will uot Only ftop the payment of t!ic refuiue of her fortune to make a fettle- to thc hufbaud, but will even prevent hi« receiving the intcreft of "*.^"^' ''*'*;•"'* that refidue, that it may accumulate, for thc benefit of the wife,
will not only , r i • n • r r •
ftop the pay. uulefs he IS itarving for want oi maintciuncc.
fiicnt of the re- fidue of her fortune to him, but will prevent hla rccthlng the inUreft of that reCiuc/thit It nay accumulate for her bcaelit.
The dlrefiion here was not for the benefit of the hufband, or to alter the right and property of thc parties, but only to eafc the executor of the burden, and ordering the Accountant Gene- ral to lay it out in thij manner was to fecurc it againft tlie huf- banil, fubjcft to the furtlier ovder of the court.
Lord Chancellor directed that fo much of the order of the 29th of November as dirccls thc payment of the fum of 122 A <5 J. 7 4/. to JJ:h BznJy may be difcharged, and thc fame be • ^ paid to the peiitioner (i).
(l) Reg. Li. A. 1 743. fol. 9a. a. Vidt Anon, fift 726.
in the Time of Lord Chancellor Hardwicke. %\
Coulfofi vcrfus Whlte^ January 2<5, 1743. Cafe 13.
Lord Chancellor, /hr^^<^ ^/^^^^^^ ^ ^^' a *^^
EVERY common trcfpafs is not a foundation for an in- Thlscourtvlll junction in this court, where it is only contingent and jJJ^n^^Q^^^^"^* temporary ; but if it continues fo long as to become a nufancc, ftrain a perfoa in fuch a cafe the court will interfere and errant an iniunftion fr'^mcomnnit-ing
rt . , r r . . . ° •' a trcfpafs, wSere
to rcltrain the pcrion from committing it. \t u temporary
only; otherwift where it hii contlnMsd fo long as to become a nuUnce*
cv r 22 ]
JFcodhoufe verfus Hojhlns^ January 31, 1743. C^ic l±
CIR John Ho/hins by will, dated the 3d of Sfptemher^ ^697, Lord Harjtohh *^ dcvifed his lands, after the death of his wife and a truft- o^ opinion this term of iooo years, to his fon Bennei Ho/kbis for 99 years, cafe"* would if he (hould fo long live, without impeachment of wade, re- induce the'court mainder to two trultces and their heirs during tlic life of his fon *|^ <*«"«« ».i'^f- Binnd toprefcrve contingent remainders, remainder to the firft recoveiy ," in j and other fons of Benmt in tail male, remainder to //w;«^rr/orrf ***^«»«J*fd the bill E'ijkins his fecond fon for 99 years, if he (liould fo long live, re- crcitors**i 2*nft raainder to the fame trullecs and their heirs during the life of the heir ?tUw Hungirford Hojh'im to prefcrvc contingent remainders, remainder of the furviving to his firfl and every other fons, remainder to his other fons in hwtojoh^**"*^* like manner, remainder ;o Sir J(*hn Uoj}chn\ daughters, remain- der tv-) t!ic teftator's heirs.
There was a power for the fons, when in poflellion, to roake jointures and leafes, except as to particular lands, and an- other power for Hcnnet and the other fons within two years after teing in poiTellion, and having a fon of the age of 18, to revoke aH and every the former ufes, and to limit new ufcs, fo that the prcmifles be limited to the heirs male of the fons in the fame ''^nncr as thefe limitations, and to fettle fuch like power of 'evocation. Sir JrJ:n HoJl:r:s died.
Baifid Ho/kin f his cldcft fon dird without i/Tue. , • Bimgcrfird Hjl'lns the fecond fon, now Sir Hungerford Hc/hhigs^ married, and has a fon Chandos Ho/kins^ now above twenty-one.
Sir Hungerford and his fon became indebted by bonds to cre- ditors, and made alTignments of the fettled eftate in truft for creditors, and agreed to fuiTer a common recovery to make the -iffijjnment and provifion for the creditors efiectual. ]
The bill is brought by the creditors again 11 Sir Hungerford *
HoJUni and his fon ChandoSy and againfl Tkcruts H'jVin (the fifth fon of Sir John Hcphins) all the other fons, who had in- tormtdiate remainders as before, being dead without iiTue, and Igainft the defendant Mrs. Ann Bcrrington tlie heir of the fur-
C 3 viving
22 CASES Argued and Determined
WooDKousiv. viving tniftec, to prcfcrvc contingent remainders, in order to compel her to join in a common recovery, and that the plain- tiffs might have an efFe£lual fccurity and fatibfaclion for their debts.
Mr, Attorney General for the plaintiffs. [ 23 J There arc two general queftions \ The firft as to the compel-
ling the defendant Mrs. Berringtoti the truftee to join in a con- reyahce to make a tenant to the pracipe^ in order to fuffer a recovery.
Secondly, As to the power of revocation, Whether that be not a perpetuity, and void ?
Mrs. Berrhigton is a truftee for the fon of Sir Hungerford Uojkins^ who is tenant in tail vefted, and if (he had joined voluntarily, it would not have been a breach of trufl \ and for this purpofe cited 2 Vern* 754. • .
Mr. Wilhraham oi the fame fide cited I IVms. 358 (l) Eq. Caf, Aht\ 386. Foley v. Wmnvigton (2), decreed by Lord Mac clesfieldf that the trullees to puicrve contingent remainders fliould join.
Lord Chancellor faid he was of counfel in the cafe, and it was to make a marriage -fetcltment, and fo to continue the ufe$ in effcfl: of the old fettlcmcnt, and after the ufes of tlic new marriage fettlement were ferved, it went to the old ufcs.
Mr. Biddulph for Mr. Thomas Hojkins the remainder-man faid, there was no precedent where a court of equity have decreed the truflees to preferve contingent remainders to join in deftroying remainders, unlefs to make a new fettlement, as in IFinningtoff^ cafe, but here the prayer is to fell and alienate the eftate, and the debts nre recited in the articles to be the debts of the fathers and for which the fon is only fecurity.
Mr. Attorney General in reply faid, the fon is fo far owner of the eftate as that he may levy a fine, which will create a bafe fee, and bind fo long as ifTue of him fliall exift, and may raifc mon«y though not fo conveniently, and upon fuch eafy terms, as if the whole were in his power.
As to the debts being the father's, the fon is equally bound, and in refpe£t to the obligee he is as much a debtor as the father, and cited i P. H^ms. 536. [ 24 ^ Lord Chancellor, Where the In- If this had turned upon the power, I fliould not have deter* tent of the owner mined it now, but in a more folemn manner ; but as there is peare u> prefmc ^ prcvious queftion as to compelling the truftees to join in a the limitation? common rccovcry, the other point is not now neceflary to hchaimadcofit determine, yet fo much may be drawn from the power, as the'court*wm'^*'"^^y ^^w thc intent of Sir John Hojkins to preferve the limi- effeduatc this tation hc had made as far as poflible, and this intent the court ufM*vrc«tJ^^' ^ff^^"-^^s where the ufcs are executory, as where Lord Coivper t9fy. " direfted truftees to preferve contingent remainders to be inferted
in the cafe of Sir Jchn Maynard'^ will.
(i) Bajet v. Chapman^ S. C. (2) i P. W. 536. S. C.
in the Time of Lord Chancellor Hardwickb. * 24
It is agreed there is no precedent where the court have decreed Woodhousi r. in fuch cafes the truftees to join j and I am of opinion, this is not fuch a cafe, where the court ought to decree it ( 1 ).
Truftees of this kind are called Honorary Truftees, and in- Botdcchre,whc- trufted by parties to prefcrve the contingent remainders ; but I thcr the uufteci will not fay, if the truftee who is appointed fhould join, it \i^ouId Jo*«ni"g would be fuch a breach of truit, as this court vould decree a to make iatis-
fali9fa£lion. fadion for fuch 4
breach ofciuft.
The reafon of making the father a tenant for 99 years, is ^ j. ^v r ^ in order to preferve the eftate ; it may likewife be the defign thcr tenant for of fuch fettlements to prevent the father's influence over the fon 99 ycars,infteaa when of age, if the father was fcifed of the freehold, to get the frSJJ,"!,*^^^^ {on to deftroy the fettlement. pre vemhU hav-
ing fuch an in- , flttcnce OTcr the Ton when of age> as Co dn^ hln^'ia to deftroy the fettUmenC*
Here the intention is to pay the debts of the father. The obje£lion is, the truftee is truftee for the firft tenant in tail, and that when the tenant in tail is feifcd of the freehold, then he has a power to bar, and not before.
As to the cafes tliere are but few ; Mr. If^mnington^s went upon the reafons before mentioned, for the letting in the join- ture, and a provifion for younger children, which was ftill carrying it 6n in the family.
The argument made ufe of by the plain tilTs counfel was that here it is prayed to execute the truft of articles, and to be fure, it is true, but this court is not to decree every truft created by the parties ; and though, as has been faid before, the court might not condemn tlie truftee if he confcnted ; yet it does not follow that the court will compel the truftee, and 1 think this the very cafe which was intended to be prevented . ^ ^ hj the tt'uft, wherefore tlie bill muft be difmilTed. Town/end I *^ 3 ^^(mLawton, 2 P. IVtns, 219* was mentioned by Lord Hard^ ^"icke in fupport of his opinion.*
(0 Symanee v. Tatton, ante, I vol. 613. Barnard y* Largt^ Amh, 773. \ Bro*
• On marriagey lands are fetded to A, for 99 years, if he fo long livei remainder to ^•>odhis heirs during the li£e «]/ ^. to fupport contingent remainderi, remainder to ^ firft and every oihtr fon of ^. A. has two fons, C. dud /?. A, chc father having non|a{ed the prtnoliTeSy he and his fon covenant co fuf^er a recovery) and to procure i* thctniftee to join: B, the truftee by anfwer, fubmits to the court : The court will ' It compel the truftee to join> unlefs b. the fecond fon of the marrUge will confentj
C4
CASES Argued and Determine^
p r JFi-Wvcrfus Litcot^ February "j^ I743«
OnabiiUroMgHt A Bill was brought againft fevcral pcrfons, and the heir tofiubiiftawiii AA 2X law, to cllablifli a will 5 the heir at law makes a dc-
aj ainlt .tn hrir at r* "JT lavr, the court, laUlt, rotwithftindioj be made deUulr, rdered the proofs of ic to be read^ and faid the will could n»t Wc otherwife veU prOTe44
Lord Chancet.lor,
I have fonie doubt, whether I ought not to hear proofs of the will's being duly proved, before I can declare it well proved, notwithftanding the defendanr, the ht'ir^ has made def;iult ; though in common cafes the plaintiffs arc intitled to a decree according to the prayer of their bill, without reading any evi- dence, yet he thought he could not regularly declare the will well proved, unlcfs he read to the proef of it.
The rcgillcr could not recoiled^ any cafe where this was the praftice of the court, but Lord Chancellor thinking it neceffary^ ordered the proofs of the will to be read (i)
(i) Vide French v. Barw^ mnte, 2 vol. 129.
Z, Fihruars 8, 1743, John Norrls an Infant^ Ann^
Cafe 16. jyr,^^yj^ j^^,^ ji/^,ji,^ Elizabeth Le Leve, /iW> Plaintiffs. Othtrsy •- ■ J
Ifahilla Lt Keve^ Spwjler^ Edward Le Nar^ F.fq\' Petre Le Ncve^ Gent, Son and Heir of HtnriettA Le Nevey dcvcafedy Ednvard Matthew Grave Gent, and Ann his fVife^ the Daughter end Heir of Ann Rogiry di'ceafi'dy formerly Ann Le Ntvc'y which faid Ifahcllay Hcnricttay and Ann RogerSy were tf/i - ^^^ Daughters and Co-heirs cf Oliver NevCy cther^
^ Defendants^
.. <^^^'
^^^^ / ^^T TV T? T? r * \T.»,s r^C n^.
s. c. roft. S2.
Semb.
r\LlV ER Le Nevey of Great TFitchinghaniy in the county of ^ Ncrjllky Lfq; being fcifcd In fee of divers manors, lands, tfi-. in N'.rfolk, Surrey y Middlefcx and Lcndsny of the yearly va- rulli in'^.Tpta ^"^ ^^ I cool, and having no child, and a great dcfire to conti- tobilhofrcvicw, nue liis clUtc in his name and blood, diil propofe to fettle tl:C hiTiiig ntvtr fjj^j. ^pj^j^ Oliver Le iY«r, then an infant of ten years of age fromCiKt"Jie (fithcr of the defendant Jfaheila, and grandfather of the defend- jnakin^ uf chcm ant PtttT Le AVir, and Ann Grave) and upon Peter de Neveh'is the cMir. w-« broilier, alio an infant of twelve years of age, and Francis dc
ot opinion that -_ i i • tt
thej.a.ijes At^v', and thcir ifTue.
who now applied Old Oliver Le N^'ve had been long acquainted with one John
uch*abii!**had ^^^'^^ * barriiler at law, refidlng in the county of Norfclk^
notbroujjh: (great grandfather of the plaintiff y#^;i Norris) who had been
*^ihoic7JicJ*' his llai^ding counfcl for many years, and had die folc dircftion
and u i I n»i U'cd the 2 0*
i^ll
in the Time of Lord Chancellor Hardwicke. z6
ofhisaffiirs, and Oliver intirely relied on his fkill and integrity Kotfii t. in preparing fuch fettlcmcnt. h* -^y]/* '
On the 7th and 8th of February 16'^, old Oliver Le Nroe&i, ^^^>^^^^ by Icafc and rclcafe (in confideration of the natural love and '^
affeciion he bore to Oliver Nevey Pftcr N'fve, and Frances Neve, being liis coufins and of his name and blood, and for making provifion for payment of his debts and legacies, as he fliould bjr his lad will appoint) convey and limit the faid manors, lands, bfc.
To the ufe of himfelf for life, without impeachment of wade. To the ufe of Elizabeth his wife for life, as to part. Remainder, as to the whole, to his coui'm Oliver Neve for 99 years, if he fo long live.
Remainder to truftees to preferve contingent remainders, re-^ mainder to his firft and other fons in tail male, remainder ia Vikc manner to Fe^er Nevey and Francis Ncvey and to their firll and other fons in tail male. Remainder to the right heirs ^f the f aid Oliver the grantor » In the indenture was a provifo that it fliould be lawful for old Olh^r by his will, to limit all the faid cftatos, after his own death to any pcrfon for any term of years, in order to raife money for the payment of his debts and legacies.
And on the 9th of February 1674, he made his will, and thereby in purfuancc of the faid power devifed unto John Norris all the faid cftate for the term of ten years, to commence after the death of the tcftator, upon trull, that the rents and profits thereof fliould be applied \i\ payment of his debts, legacies, and funeral cxpences, and after payment thereof, the furplus to Oliver Ni've the infant, if then living ; or in cafe of his death to Ptter^ if then living; and in cnfe of his death to Francis, " then living, his executors, adminiflrarors and JilRgns, and ''^^e Jzkn N:rris executor of hii will, and gave him a legacy of 300 /.
Old Oliver Le Neve by a codicil dated the 17th of January i<^/8, v/iiled that all houfes and lands purchafed by him fince the makinp; his will, fliould tro to the fame ufcs, and for the lame edate, as were limited by his will.
Some few days after makijig tlie codicil, old Oliver died with- out ilTue, and John Norris proved the will, and entered upon the ellates devifed to him in tru:t as aforefaid.
On the jd of Aprily 1679, old John Norris wrote a letter to Francis Ne^fC, father of Oliver the infant, " Declaring a great " concern for the fafety of the will, and that he would not " truft the fame out of his hands, till he came to London •* which he intended foon ro do for the proving ii in chancery, " and that he fliould be aflillful to do therein for i s bcfl: fc- " curity to all in ents, and alVurcd the {:iid Francis, he fliouKi, ** to his beft judgment, cn<ieavour to have the in en: of his •* tcfta or performed for all i 's purpofcs, fo far as laid in him ^ ^ the truft thereof being committed to him fo wholly, w^-'i
27 CASES Argued and Determined
l**n" r '* ^^ ^^'^ obliged all his care and (kill therein, which he dc-<
** clared he was not a little felicitous to effedi to his utmoft^
r R 1 ** ^"^ ^" which he wus ready to comply, with the beft ad-
l ^ J •* vice he could take, to fecure the cnd» the teftator defigned
«♦ by his will/'
On the 2d of Augu/l 1769, old John Norris agrees with John Neve of London^ blackfmith, the heir of the teftator, for the pur- chafe of the reverfion in fee, after all the intermediate eftatcs were fpent, for thirty pounds, and by leafe and rcleafe of the ift and 2d of Aiigujl^ ^^79» ^^ blackfmith conveys to John Norris and his heirs all the fuid eftate, late belonging to the faid teftator.
On the 23d of OBobcr^ 1679, a bill in chancery was exhibited by the faid Oliver Neve an infant by his guardian, and old John Norris againft Elizabeth Neve (the teftator's widow) and the bbckfmith as heir at law to the teftator, fctting forth the fettle-, ment, bill and codicil, praying that the defendants might fet forth what right they claimed in the faid premifles, and that the plaintiffs might examine witnefles, and that their teftimony might be preferved.
In December following the blackfmith's anfw^r was put in, by which he infifted he was heir at law of Oliver the teftator, and faid that he had been informed that the faid Oliver had in- tailed part of his eftate, but that he had never feen the faid fettlc/nent or will, and in the anfwer he neither took notice of old JoJjn Norrisy having purchafcd the reverfion of him, nor did he claim the faid reveriion.
Elizabeth Neve (the widow of Oliver) in January following put in her anfwer, infifted on her eftate for life, and faid (he had no knowledge whatever of John Neve the blackfmith.
In the month of January 1 679, the witnefles to prove the fettlement were examined, to preferve their teftimony.
The father of young Oliver died in November 168 1,
And in June 1683, young Oliver having attained his age of 21, old John Norris fettled all accounts with him, and at his rcqueft agreed to affign to him the remainder of the 10 years term (of which five years were then to come) and to put him into pofFeirion of the eftate upon a releafe of thefe rents, fefr. and of the trufts wherewith old John Norris ftood charged by the fettlement, and will, and fuch alFignment and releafe were executed accordingly on the ad of Oclober, 1683.
Soon after this a difpute arofe between young Oliver Neve^ and old John Norris^ about the teftator's leafehold eftate ; and ' in Ea/ler term 1684, young Oliver Neve files a bill againft old John Norris^ and therein charges that the faid John Norris had renewed feveral leafes, and that he had poflTefled all the deeds, [ 29 J y^. relating to teftator's real and perfonal eftate, and prayed that the faid John Ncrris might convey to him the faid Oliver all the faid freehold eftate, as alfo the feveral terms, isfc. of old Oliver Le Neve, of, or in any manor, lands, iffc, wherein he was any ways intitlcd to at the time of bis deaths and Jince
CWHi
In the Time of Lord Chancellor Hardtticke* 29
e^nu in any manner or by any means to the /aid John Nofris,- or to Noim t. bis ufe or benefit. L. Nif«.
Qld John Norrlsput in an anfwcr the I2d oijuly^ 1684, :ind thereby admitted that he drew and advifed the fettlemenc^ will, and codicil^ and that Oliver^ the maker thereof, was governed by his advice in the condufk of this affair, and that he had been executor of all the wills by himf made for twenty years before his death, faid that he had delivered up all the deeds and writings belonging to the teftator^s eftatcs, but yet took no notice of the purchafe he had made of the blackfmith, oltmgh he was required by the faid bill to fet jorth all interejl Vfhicb had ccme to him in any manner ^ as well leajehold asfree^* hddy in order to ajjign the fame to young Oliver Neve the plain** ti£
No further proceedings were had on that bill, but Oliver Neve and John Nortis compromifed the matter between thenr, and fourteen years afterwards, on the loth oi Augttji^ 1698, old John Norris afligned the faid leafehold premiffes to two pcrfons for the remainder of the term, which perfons declared dttnfclyes truftecs for Oliver Neve the younger,
^^ the I ft, 1 688. In purfuance of an agreement with PfterLeNeve (the elder brother of Oliver^ and who was next in remainder after him, with a limitation to* the iflue male of hbbody) the blackfmith for ten pounds conveyed his rever- fionary intereft to the faid Peter Neve and his heirs, and died h Jugujl following.
On the I ft of jluguft^ 1701, oM John iVimx died, having firft made his wiUj whereby he devifed the reverfion he pur- chafed of the blackfmith to his eldeft fou John (the prefent plaintiff's grandfather) for life, with remainder to his firft «uid other fons in tail male, with remainders over.
On the 7tliof December^ 1708, Francis Nevcy the third and hft perfon in the entail under old Oliver Neve^s fetileracnt, <iicd without iflue.
In 1 709 young Oliver Neve being in poflenion of the eftates, and but having one fon living, an infant of fo infirm a ftatc <>f health, that it was apprehended he could not live to be 21 ; 3nd Oliver being not likely to have any more children, and i^rf^r having no child, applied himfelf to the plaintift'^s grand- "thcr, who was in great want of money, and offered him 2000/. and afterwards 30P0/. to deliver up the conveyance C 30 J ^^ his father from tlic blackfmith, but the reverfion being de- vifed to him only for his life, he could not difpofe of it.
Young Oliver Neve's fon being between 20 and 21, and ^y infirm, and his father not being able to purchafe the 'cvcrfion, they came up to London ^ in order to get a privy fcal to enable the fon, notwithftanding his minority, to fuf- fcr a recovery, but the plaintiff *s grandfather entered a caveat ^ the proper olHce, which put a ftop to it. Soon after their return into the country, the fon died before
* On
3* CASES Argued and Determined
NoirtTf Y. On the 26th of N:vemher^ 171 1> young Oliver Neve died Lm Nivi. without ilTuc male, and his brother Peter Neve entered into polTcffion, and applied to Mrs. Earl (a friend of the Norr'ui) and told her, he was defirous of purchafing Mr« Ncrris's re- verfionin this eftate, and would give 5000/, for it, and upon her faying (he thought it not a valuable confidcFation ; he faid he would give more, and defired her to fpeak to him, which (he did j and AVr/j*s anfwer was, he had not power to fell it.
On the nth of Jn/wary^ 17 16, John Nor ris^ the plaintiff's grandfatlicr, died, leaving John Norris his only fon and heir at law.
In 1725, Peter Neve (being 64 years old) pretended he had (bme claim to the rtverfion, and, to accomodate difputcs, propofed to marry a filler of the plaintiff's father, and, on thefe terms would yield up his claim to the rercrfion in fee • a meeting was had ; but the provifion he offered for the young lady being thought not fufficient, the matter broke off.
On the I ft of Oclobcr^ I729> Peter Neve ^itd without iffuc, having firft made his will, and devifed the eftate in queftion, the rcverfion of wliich he had purchafed of the blackfmith, to the three daughters of his late brother Oliver Neve \ name* ly, Ifabella Le Neve, Ann Rogers^ and Henrietta Neve^ and their heirs and affigns.
All the limitations in the firft fettlement being fpent, upon the death of Peter Neve without iffue, the reverfion in fee bc*» came vefted in John Norris^ the plaintiff's father, who being then an infant, brought his bill April the 15th, 1730,- againft Ifabella Neve, Edward Neve; and Henrietta his tlien wife, and John Rogers and Anne his wife, praying they may fet forth what right they claimed to tlie eftate, and to deliver up poffeilioiisi bfc. no anfwer was put in to this bill. [. 31 J In Erjier term, 173 1, tlie plaintiff's father brought ejcft-
ments for the lands in Norfolk, to which the defendants to the laft mentiohcd bill appeared, and upon a long trial by a fpe* cialjury at the fummer affizes 1731, and full defence made, a verdi6l was given for the plaintiff's father for all the free- hold lands in A'i?;yo//6, and judgment being entered, tlie defend** ants brought a writ of error.
On the 29th oi November J 173 if the defendants brought ;i crofs bill againft the prefent plaintiff's father, and among other things charged that Peter Neve did not fufpeft that Nor- r:s had purchafed the reverfion, and that Norris, who was privy to Peter* s purchafe, never intimated that any convey- ance had been made to him, but always declared himfelf to be no otlicr than executor in truft, without fetting up any claim to tlie reverfion, and therefore prayed a difcovery of all the deeds and writings, and tliat they might be delivered up and the conveyance to Peter Neve from the blackfmith be cftabliftied, and that to Norris cancelled, and tliat the proceed- iugs on the ejcdlment might be ftayed.
la
L
in the Time of Lord Chancellor Hardwicke^ - j
In Michaelmas term, 1731, the plnintifF's father delivered NotRitv.^ rjecbnents for the London and Eotithwark eflates, but on the ^* ^f-^k.* 2d of March^ 173^5 the parties came to an agreement, that the copyhold and leafehold, which lie intermixed with the freehold, ihould be difting;uiftie'J, tliat the plaintiiT's lather ihould, without trial, be let Into poiTciuon of all the frccliolds in LondoNy Soutfywaiky and Njrfclky comprifcd in the blackl'mith's title.
John Rogers and Attn his wife died foon after, leaving iflue the defendant Ann^ now wife of Matthew Graie^ and Hc?t^ rtetta^ wife of the defendant Edward Neve^ died, leaving ifluc the defendant Peter and the plaintiff -^//z^/^^//^.
The 7th of OElohery 1775, John Norris^ the plaint! (F's fa- ther, died, leaving the plaintiff his only fon and licir, who, in November^ 1740, filed his bill of fupplement and revivor againft the defendants, praying they might fet forth whether they inHfled on any and v/hat title to the eftare in qHcftion, that there might be a commifTion of partition of copyhold from freehold, that the plaintiff might be Itt into pofleflion of the freehold, that he might have the benefit of the agreement in the former caufc ; and all deeds and writings to be delivered, and to be quieted in poflt^fTioR.
On the 2d of July^ 1741, the defendants put in their an- fwcr, and infifted that old J-jhn Norris concealed hi?s convey- ance from the AVv^j j that his taking it was a breach of trull, and that he ought to be deemed a truilee for Prtcr and his heirs; admit the agreement in the former caufe, but fay it ^^s not intended to bind the intereffc of any of the parties, that they ought not to account for the rents, (5^c\ ofthecftace, . hut that the plaintiff's great grandfather, old John Norris^ fcouldbe decreed a truftee for them, and the j:liintiif obliged to account with them for rents and profits.
The plaintiff replied to the anfwcr, and iffue being joined, examined divers witneffes, but the defendants (who had made Ac abovementioned defence agreeable to what they had col- IcQed from the common report in the family) did not examine *^7) being unable to prove the matter by them put in iffue»
On the 17th of July^y '74^j Lord Chancellor decreed an account of the profits of the freehold prcn.ilTcs fi nee the death ^[ Peter Nevt^ and declared the plaintiff intitled thereto, and "^rcfted a commiiTion for dividing copyholds from freehold *^"d8, and that after the execution of fuch coramilfion, the Stings belonging to tlic freeholds fiiould be dchvered up for ^plaintiff's benefit.
On the 24ih of yftigt/Jl, 1742, the eftates were dillinguiflied •^ fet out by metes and bounds.
, On the 7th of February the caufe was fct down for further ^fcftions ; but, before the fame came on, the defendant Ann fl^tc Rogers) married tlic defendant Matthew Grave an attor- ner-
"On the 2ift of May^ I743> ^^^ defendants petitioned tor '^c to ale a bill of rcvicWf upon si fuggcftion tlut the peti- tioners
t3a J
^2 CASES Argued and Determined
KoBTttiT. tioners had fincc the decree difcovcred, that they Trerc the la, Kivx. |^gjj,g j^j jg^ ^Q ^}^g blackfmith, which they had never heard before^ and that he was dead without ifTue.
On the 22dof OSIoberj 1743^ the petition flood in the pa- per, but the defendants did not think proper to fupport that petition, but fufFered it to be difmifled with cofts.
On the 27th of 05fober the defendants preferred a fecond petition for liberty to bring a bill in the nature of a bill of review, and to rehear the caufe, on a fuggeftion, that fincc the decree was pronounced, they had difcovcred feveral fafts by which the real truth of the cafe appeared, fufiicient to (hew that the purchafc of the reverfion by old John Norris^ a truftec for Oliver J and during his infancy, ought to be cftccmed a truftforhim, and that they had difcovcied feveral deeds, wit- nefled by old Norris^ relating to purchafes by old Oliver^ and feveral letters, manifefting the confidence old O/wfr placed in him, and likewife the letter of the 3d of April 1679, ^"d the record of the bill in Chancery on tlie 23d of OHobery 1679, brought by old John Ncrris and young Oliver Neve againft the widow of old Oliver Neve, and the blackfmith, and likewife the ^ - records of the bill brought by Oliver Neve the younger againft I 33 J old John Norris in May 1684, and feveral deeds before men- tioned.
In fupport of ihe petition tVilUnm Havers fwore, he was the folicitor for the defendants Jfabclla Neve, iffc, and that he did not know till after the 17th oi July 1*742, the day on which the caufe was heard, that the defendants could prove that old John Norris was the counfel ufually employed by oUr Oliver Zfeve^ in his aifairs ; or that he had been his executor under many wills before his death.
Or that old John Norrii did advife or draw the fettlement and will of 1674.
Or that the eftate in queftion was purchafed by old John Ncrris f whilil he was in pofleffion of the faid eftate in truft for young Oliver Neve,
Or that old J^hn Ncrris had furrendred a leafe of the per- fonal eftate, or that there had been any controverfy »bout it, or that old John Norris had afligned the fame in confideration thereof.
Or that old John Norris was a witnefs to any deeds wherein old Oliver Neve was a party.
The defendant Mathew Grave by his affidavit fwore, that fincc the faid caufe was heard, Thomas Martin^ executor of Peter Neve^ delivered the fettlement of 1674 to him, and that ob- fcrving a caufe indorfed on the fettlement, he fearched for the fame, and found two caufes in the Six Clerks Office, iVirtwer- fus JSeve^ and Neve vcrfus Norris j in the records in the Tower t that he found the latter of the third of April 1679, in Thomas Martinis cuftody the loth of July laft, and the leafe granted to old NorriSy and the aflignment thereof in Holden*s cuftody, and alfo found tlie deeds attefted by Norm in Martim*z cuftody.
The
in the Tunc of Lord Chancellor Hard^cicke. 33
The defenHants Ifahella Neve^ Edicard Neve^ Peter Ndve^ and Notm w. Ann Grave^ in their affidavits fwore, that thcjr knew none of ^* Nite. thcfc fafts till informed. thereof by the defendant Mattheio Gravey and that they examined no witnefTcs nor read any evi- dence in the caufe^ becaufe they did not then know any of the fafts.
Thomas Martin in his affidavit fwore, that he is one of the executors oi Peter Neve ^ who died in 1729, and that upon his death he found in his ftudy tlie fettlement and copy of old O//- vesNeve*s will, and the indenture of OHober 1683, and that the deeds and writings remained in his cuflody from 1729, till the dcliiery thereof to Mattlxw Grave, Isfc. on the 27tli of May laft.
That he was concerned in the country as attorney for the de- T 7£ 1 fcndants, at the trial of the ejcftmcnt in 1 73 1» but was not con- ^ ^^ -^ cerned as folicitor upon the defence for them in equity, and to his bowledgc did never fee the bill of revivor in this caufe, nor the defendant's anfwers, but that he hath had meetings with the
pUntiff's father, and may have talked with or a£ied for Jfabelta
N/ve^ Edward Ne%»e and his wife, and John Rogers and his wife,
nndcr the dire£lion of the parties, or with Mr. Havers or Mr. Brufyer, the clerk in court, which Havers and Bowyer he
believes had the fole conduft of the caufe for the defendants : but he was not concerned for them as folicitor other than as aforefaid.
This petition was heard before Lord Chancellor on the 28 th ^January, and on February i\\z 4th and 8th, 1743, and in an- fwcr to this evidence, which was produced by the defendants in fupport of their petition, it was infifted on the part of the plain- tiff, that the matters now pretended to be new difcoveries by the defendants, are not fo 5 for that at the trial of the cjeftment in 173 1, copies of the bill and anfwer in tlie caufe of Oliver Hfu and John Norris plaintiffs, verfus John Neve and Elizabeth -W«v defendants, were produced and read at that trial, and that Thmas Martin was the attorney employed by the defendants in that caufe, and afted as fuch at the trial : and, as agent for the defendants, he wrote letters touching the executing the commif- fion for examining witnefTes in May 1732.
That the defendants exhibited their crofs bill in 1731 againfl: the plaintiff's father, and therein ftated " the fettlement and ** will of old Oliver Neve, and of old John Norris's having in- " ftruclions to purchafe the reverfion for Peter Neve, and that ** bftead thereof he had purchafed it fraudulently for himfelf, " and concealed fuch purchafe and that therefore he ought in ^ equity to be deemed a truftee for the plaintiffis in the crofs '' bill."
h was likewife infifted, that the letter of the 3d of /fpril ^679, or the deeds attetted by old John Norris, are no new dif- toierics, becaufe they came out of the hands of Martin, the de- fendant's attorney in the cjedment, and employed in the com- Ail&on that iflued in the caufe out of Chancery. ; After
34 CASES Argued and Determined
NoRRis r. After reading the fettlement and will in 1674, the blackfmitli*»
* '^'* conveyance, and the bill, anfwcrs and depofitions in 1679, ^"^
1684, and feveral purchafc deeds of old Neve attefled by JtiorrU
and tliree days hearing of counfel, Lord /for Jw/V^r delivered his
opinion as follows, the 8th oi February 1743.
I have been defirous to examine very particularly into the new evidence, in order to prevent any more litigation and ex- pence. -. 1 The prefent application is, for leave to bring a bill, in nature
I 35 J Qf a bill of review ; and this is faid to be founded upon new matter, not at all in iflue in the former caufe, or upon matter which was in iflue, but difcovered fince the hearing of the caufe.
Upon thefe rules, I do allow bills of review have been grant- ed : for though it has been faid that thefe were varied by the order that was made in the caufe of Montgomery vcrfus Clarky yet I fee no alteration, and therefore the rules I fhali judge by in the prefent cafe, mull be the ancient ones.
Lord Bciccn's rules have never been departed from fince the making of them.
By the eftablifhed practice of the court, there arc two fort* of bills of review, one founded cftfuppofed error appearing in tbt decree iifelf^ the other on new matter nvhich muJJ ar'ife after the de^ creey or upon nenv proof nvhich could net have been ufcd at the time ^uhen the decree paj/ed.
The qucftion is, • whether in this cafe the defendants have
brought themfelves within the rule, and whether there is new
matter not exifting at the time of the decree, or new proofs that
could not pofTibly be made ufe of at the former hearing.
ItisfufScientto 'X'he conflruftion as to the latter has not been fo ftri£t, that
1^^11*0* Ji^Irilw? the new proof muft not come to the parties knowledge till after
if the new proof the caufc has been heard 5 it is very fufHcient if it did not come
dild not come to ^q j}^gjy knowledge till after publication, or when by tlic rules o£
till after? ub^?- the court the party could not make ufe of it (i ).
cation, or when
by the rule& of the court he could not mtke ufe of'iu
Coming to the But If it Came to the knowledge of the parties* attorney, foli- Jtnowlege of the citor, OT agcnt, before the caufe was heard, it is confidcred as no- party*s attorney, ^j^^ ^^ themfclvcs, and is the famc thing as coming to the parties*
CTf. before the . , , «-» *
caufe was heard, KnOWkdgC. is notice to the party hixnfclf.
The fecond qucftion is, fuppofing it did come to the knpw- lege of the parties, after the caufc has heard, whether it is re* levant to the matters in qucftion.
It has been infiftcd for the defendants in the original and plaintiffs in the crofs caufe, that the equity to which the new fads arc pointed was not in ifl'ue at the hearing of the former caufe*
(1) Paiicrjou v. Slaughter ^ Ami, 293.
In the Time of Lord Chancellor Hardwicke.
3S
Now as to this lam clear of opinion, that the equity was as Noisus y. full before the court, in tlic former hearing, as it can be ^* N*vi, noT.
For it appeared there that old Oliver Neve was the maker [ 3^ ] of the fettlement, that young Oliver was an infant, that eld JchtiN^rrif wastruftec under the fettlement during ten years, for the payment of debts ; and in that time took a convey- ance from the blackfmith, the Jaft rcmaindcr-man under the fctilemcm in 1769.
The equity infifted on in the crofs bill is, that old J^hi Krms ought to be confidercd as a truftce only, for the par- tics intcrcfted in the truft cftate, and that the purchafing the jeverlion from the blackfmith was a breach of trull in him ( i \ and that the conveyance to Peter Nive from the blackfmith ought to be e(lablifhed> and that to Norris cancelled, and the proceedings at law flayed.
All the charges relating to the truft, and the execution of Vf^^ «^ p»t iff were made out then, and if fa£ts were put in iflue, there irnot^obiigcd^to is no nccefTity for the party to point out what will be the ef- point out what fca and confequcnce of fuch fafts, for the court arc to make wmbethceftca
-L • r r^p^ r f, ' ' ^^ them, tor xhz
inc mierence of law from it, as ixfaao oritur jm^ court arc to make
the inference of law from them, ts txfjtio oritur jus*
The defendants then do not want a bill of review to come at this equity, for all the a£ls which arc now faid to be dif- covcred, arc corroboratives only of the former equity, and therefore there is no ground to grant it upon this head.
Which brings me to the other point, whether they are fo many new proofs^ iind that by the rules of publication the de- fendants were precluded from making ufe of tlicm at the former hearing.
'fhe firft queftian is. Whether they are new difcovc-
TlCS ?
^condly. Whether they are relevant, and would avail the defendants, if fuch a bill was allowed to be brought.
Now it does not appear to me, that thefc are new difco- ^cries, fo as to intitle the defendants to a review.
For if they were known to the parties' counfel, or to their at- torney, and folicitor, or agents, it is fufTicient to rebut fuch aa application, or there would be no end of fuits.
Hdw many parties are tlicre, that know not the merits of their own caufe, but rely on the Ikill of their counfel, or folici- tor, and therefore what counfel or folicitors know, mud be al- Jo^cd to be the knowledge of the parties (2).
hisfworn hjMarti/ty who was attorney for the defendants Tho' a country inthecjcclrments, that he had the feveir.l deeds and writings '"rg«L'cauf/»
|»tWi court, yet he U to be conii Jcrcd at the folicitor liJtcwifi, tho* he rciUei in the country, and ^""^ is kaoMrn to hia is conftruAive notice to his clients.
(^) y\dc Ajiifv. Murray, ante, 2 vol. (2) ProrJIty v. Earl of Sea) borough, iffPlelfuiale v. Gwi/a, i /"§/". 9. Tw- pojt. 392. Le Neve v. Lt JkV:r, poft. 646. ^^. Mortice 2 Bro, Cba. Rep. 326. A*?, Mackreaib^ ibU. 400. KHlick V. /ibn9,4 ^f'*' C^^' ^^' »6i.
37 CASES Argued and Dctennr»cct
Noil IS ir. cTcn at the time of the trial, and that upon the death of Fettr N*'^'» 2ifeve^ he found them in his ftudy among other papers, but fays- he was concerned only as attorney in tliis trial, but not as foli- citor in the caufe in Chancery.
But I will condder him as folicitor likewife, notwithftand- ing he lives in the country, for every body knows that country attornies ad by agents in caufes here.
The letter of the 3d of April j 1679, comes too out of the hands of Mr. Martin^ but 1 do not fee what inference can be drawn from it, any more than that old John Ncrris was a truftce.
The next thing to be confidercd is tlw bill brought by y^ung Oliver Neve and old N^ris, againft Mrs. Neve and the black* fmlth*
Now this very bill was produced on the trial in cjcfl^ ment, and tho' by an advcrfary there, yet it is the fame as if produced by the defendants^ and is a clear notification of the facl.
This trial was eleven years before the caufe in equity wa* heard, fo that there was time enough for the defendants to- have confidered it, and whether the judge did right in adnutting it to be read, is not material.
The next is the deed of aflignment in 1683, ^''^>cli was Hkewife known to Mr. Martin^ and found among Peter Neve*s papers, and was therefore coiiftrudive notice to his clients^
Suppofe then thcfc arc not new difcoveries, it is a final and conclufivc anfwer to this application for a bill of review, that they exifted at the former hearing, and were known to the par- ties or their attorney, aiul therefore are not widiin the rule laid down by Lord Bacon.
But luppofe them to be new difcoveries, and relevant to the cafe, they can amount to no more than corroboratives only of the former point in equity.
TIpe equity infilled on is this, that oiAJohn Norris (truftee for a term of i o years under old Oliver Nevts fcttlement, antece- dent to all the limitations of the eilate in the fcttlement) before the end of the term, and during the infancy of young Oliver A^r, lakes a conveyance to himfelf of the revcrJion from the blackfmith the heir at law of old Oliver Neve^ for 30/. only, the eftate being at leaft 1500/. per ann. as it is now fallen into r 78 1 pofieflion. It is extremely This is a tranfa£lion indeed extremely to be difapprovcd, and wron^fora I muft fay that a counfcl or agent taking a conveyance from the toTke^conl'"^ right heir, for his own benefit, and which he diicovcrcd by his' veyancc from the being a truftec, does a very wrong thinj;.
ri^Uc heir for
kit own benefit^ which he diicovered by bcin^ a truftee.
But tills is a cafe prima imprejftomjy for it would be duTicult x% fay for whom he is a trullce, and yet I (houid be extremcljr
dcfiraus
In the Time of Lord Chancellor Hardwickb, 38
deSrous of conGdering him as a truftee only^ If I could be war- NoRmrY. ranted in fo doing. *•* ^***'
The cafe which has been cited of RiwiforJ market, and other cafes of leafes ( i ), are diiTfsrent from this, for there tenant-right of rcncwab are rather a curtefy from the landlord, ^Lud CitUtii pa* riks the relations of the fame family who took the original Icafe ofbiQiops, deans and chapters, (!ff* arc generally preferred, and diCT have a natural expectation of it.
Old John Nsrris was equally a truftee in the ten years term, ImPetfr Nervfy or Francis y ^% iox Oliver Nfve^ for they were ail tenants for life under old OIh*cr*s fcttlcmcnt, for it was a trail to pay debts, and attendant on the fcvcral limitations and eflatcs created by the fcttlement.
So that a perfon equally a truflce for all buys in this revcr- Hon, and it is impofiible to make the conveyance from the blackfmith to old John Norris a truft for Oliver Neve^ for the maker of the fcttlement did not intend to give the firil tenant for life any intereil in the reverfion.
Siiicc, as I faid before, this is prima impreffionisy and no cafe his been cited in point, but only argued by way of analogy to cafes of leafes, which I have (hewn are very different •, it would be too much for me to break into rules for bills of review, for the fake of one particular cafe only.
For as it is a new point, and no ground to (land upon, the making old Norris a truftee for perlbns who were only tenants for life, and took nothing in the inheritance^ would be going too far.
But there is flill another circumftance, and that is the great where the per- length of time, and the certain knowledge the perfons under ^^'t ""^^cr whom the plaintiffs in the crofs c^'ufe claim had oi Jckn Nor* xlontnkr^c' *'u's purchufirig of this rcverfion, and this will make it a qucf- biliofrcTUw tion whether it is not fuch a laches in thefe perfons who are f^^^^^"^ anceftors of the plaintiffs in the crofs caufe, as will afFeft them, ^"ih ih?^tter and be a bar to their claim : for as long ago as the year 1 7ogf it f^ow compiiinei was in the knowledge of thcfc perfons, and particularly oi*Oliver ^l^JXS^^x^ Urott that old John Norris had purchafed the reverfion ; and as ©f lime, and this is no Icfs than 35 years ago (2^, it mull have great weight knowledge of with the court not only from the length or effluxion of time, but j!^abl!^wn""* from the knowledge tlie perfons had of this tran faction, for 0/iVr have gre«t A«r^s bidding 3000/. and Pr/rr Neve $000 L for the reverfion, "^^^^^^ ^"^^'^ isailrong circumftance ^o flicw that tlicy were acquainted with apphcarieiw! ' oUMnvj's purchafe. . [ •jp ]
Oliver Neve not fuccceding in his offer, and having a weakly fon between 20 and 21 years old, came to town in order to get a privy fcal, to enable his fon to join with him in a recovery ; aodas he could not obtain it, can it be fuppofcd, as he muft be fiafperated wgainft old John Nsrris's fon for his refufal to join in the application, th.it he would have rcfiftcd fo great a tcmpta- ^n, as bringing a bill to be relieved, if there had been any E^nds on the head of fraud.'
(0 f^rie Pier/an v. SUe, ante, I vol, (2) riJe Smith v. Clay, Amk 645.
4toi lad the cafes there cited. EJ-ivurti* v. CarrtJ, 5 i»V«. I'ai, Ca. ^6a.
D 2 'U\cu^-
39 CASES Argued and Determined
NciRfs V. Therefore the diftance of time is a ftrong objeftion, becaufc,
* y* when the matter was recent, there might have been fome crr- fuchTpctiTiL cumftances, and perhaps too fome papers, which would have atchisdiilancc been ftrong in favour of thofe wlio claim under old yokfi Ncrrh, of time would ^j^jjf n^jjy y^^y probaUly be loft now, and what makes it Jikely, k hardilp^on'^fhc ^*'^^^ A^Mv's bidding fo large a fum as 5000/, for the revcrfion, dcfcndints in which ihews that he thought It a very valuable tiling, thecrofft Mil,
uIkj may he deprived of fome circumftjncfs, and may luvc loil paper;, ilicy mighi luvc availed tbcmp fdvcs of wiicji the matter was r;.*ctfat.
This is the ftrong point wliich weiglis with me, that after fuch a length of tin^.e, and fuch great oiltrs made and refufed by the pcribns wlio claimed under old Jc/:n Norn's^ that no bill was thereupon brought to fct afidc the purchafe for fraud.
And, as it will be of very b.ul confcqucncc to let parties enter into the difcufTiou of tjils in.jttcrnow, it fuch a diftance, the pc« tition mufl therefore he difmifTcd, but without cofts. The order of The plaintifl's in tlic crofs caufc ;ippcalcd from this order of
an^lkdZmto ^^-^fniiflioTi to thc Iloufc cf l.ords, where after a hearing of three theHoufcpf days, the order of J.ord Hrrdivlchc^ in a very full Houfe, was L»rds, and.iftcr alfirmed by a great m.iiority, on the 12th oi JpriL 1744. (i)
a hearing otthrec / o -* * a t t \
davs afiirmcd.
(l) 4 Bro. Pjr. Ca. 465. S. C.
Cafe 17. Stn^eus verfds DfthuJ-^ Ffhrnary ii, 1743.
The trurt of a fk Qucftion aro-fe upon thc fettlcment made on the marriage
lori^^fiT' ''or- ^^^ ^^ ^^^ defendant, thc firft limitation of which was to thc
tions for*'a defciidaiu for life without impeachmcr.t of wafte, thcri to truftecs
daughter in dc- to prefer ve Contingent ufes, to his wife for life, remainder to
ra3ie,°plyrbic at *'^^^ ^^^ ^"^ ^^'^^i' ^^'^^^ fons of the bodv of the dcfejidam, and %t or marri-gej in default of iiTuc male, then remainder to truftces for a term of* kaviT'^V**'* 500 years, upon truft, that if there Ihall be one or moredaugh- j'ndoniyonc"' tcrs, thc trullecs, thcir cxccutors or aJmiuiftralors, flv.iU out of diushter thc the yearly or other rents, ifllie^ and profits, or by fale, leafc, or wh "w^th r^*^* mortgage of the faid manors, me fluages, lands, sj^c. or any part buAand brought tliereof comprifcd wrthin the fald term, railc and pay unto fuch ihtir bin againii daughter or daughters thc fum of icoo/. for her or their portion the truftcerto ^^ portions, to bc paid to fuch only daughter (if there be but raife the portion one) at her age of 21 or day of marriage, which fliall firft hap- immcdiatciyj p^.^. ^j^j if tlicv all dic befove their portions become due, then •p'Mi9njht ctji tlic laid payments to ceale as to their executors and adminmra- rot iKtu/eJ fo tors, and to fink into the cftate for thc benefit of the perfon ta 'l^fpXff^ whom thc rn'crfion fliall belong : and alfo that fuch daughter or iife^'time {\), daughters fliall havc, out of ilie premiCirs comprifcd in the term £ *40 ] of 500 ^ears, fuch yearly maintenance as is fuitablc to their de- gree and quality; and that the rcfiduc of thc rents, iflues and
(i) See Stanley y, S/ari/cj, ante, I vol. 549.
3 proiki
in the Time of Lord Chancellor Hardwicke. 4a
profits above fuch yearly maintenance fhall, in the mean time till STivryf v. the portbns become payable, be received by fuch pcrfons as fiiall ^* ^hxc^ be intitlcd to the reverfion, immediately cxpcdlant, upon the de- termination of thefaid tcim.
The mother is dead, and ha« left no other IfTue but a daugh- ter Miho is married, tlie bill is brought by tlic hun)and and the 9 •^ jf^^^ (laughter againll the father and the trullces, to raifc the portion "^ /r? ^ >y/^ immediately- r ' ^^^f^^
Mr. Attorney General, counfel for the plaintiffs, faid, if the y . .
panics v/iio were owners of the eftate have declared, that the a^^^^^^'^r,.^* portion of the daughter on the failure of iil'uc male fliall be raif- a/}^^;,^^^^ y^<> • cd for her benefit at 21, or day of marriajre, a court of juftice ^
xrill not think that it is inconvenient, if the parties to tlie fettle- mentdid not think fo themfelves.
He cited Corbet v. Mankveil^ 2 Vern, 640, 655. and Eq. Caf. Ahr, 337. to fhcw that a rcverfionary term when the time of payment comes, notwitlilUnding it is not fallen into poffelFion, ihiU be fold.
He mentioned an authority likewife at common law, Grmies y.Maddjfon^ t Jones 201, where three judges were of opinion, that die raifing the portion ihould not wait till the death of the father.
And Hal! V. Carter^ heard the igch of July, 1742, before Lord Hardtviche ( i ).
He argued that, if rhe power of raifing the portion (hould be taken away from her, tlie daughter might have nothing till flie vas fo old, as not to anfwer the end for which the portion was gi>'en, the advancing her in marriage.
It would be very hard, he faid, if the dauglitcr hcre.fliould [ 41 1 neither have maintenance or portion, though the time of pay- ment is come, till by the deatli of the father the term comes into pofleilion.
Mr. Clark of tlic fame fide cited Sandys v. S/indys, i P. ff^ms, 707. and Butler v. Duftcomb^ 1 P. Wms. 448,
Mr. Solicitor General, counfel for the defendant, the father^ fiid the general intention of marriage fettlcmcnifi is to put chil- dren under the power of the father, and not, ar. has been argued <» the other fide, that the daughter in the life-time of the father ftall be out of the dependeocc of the fatlicr, and may difpofc of Icrfelf without hisconfent, as fhe has done in this cafe.
A great inconvenience would refult from this conilrudlon, for Ac tearing cftates to pieces, and ruining the eidcfl fons of fami- 'icsi muft be the natural confcqucnce j he cited Raejhy vcruis Unvland^ 2 P* JVms. 93.
Maintenance, in the nature of it, is precedent to the raifing of die portion ; and as it is mod clear that the maintenance here Was not intended to commence in the iifc-timc of the father, it *» a key to explain his intention as to the portion, that tliis like* «iie fiiould not be raifcd till ^ter the death of the father.
(1) Jnfe, X vol. 354. S. C.
Dj In
•^^
41 CASES Argued and Determined
^n*^*"* ^' ^" *^^ ^^'^ ^f ^'^^^ vcrfus Carter^ the maintenance was to pre- cede the portion, and given them exprefsly for their fupport till the portion was raifcrd. Lord Chancellor,
It Is a great while fmcc any of thefc cafes have come before the court.
My own general principle has been always againd raiflng por- tions in the father's life-time (i).
All the old cafes arc plainly determined againd the intention of all fathers : in fome very hard cafes indeed, where the fatler has been rigorous and cruel, courts of equity have gone beyond the ftricl rules of law, and raifcd it in ihcir Ufc-time.
The firft cafes of this kind wer^ Greaves and Maddifon^ and Gerrnrd and Gcvrara^ 2 f^ern. 45 8. and which were followed by fome others, but in the cafe of Corbet verfus Maidwelly i Salk. [ 42 ] 159*- and 2 Vnn, 685. Lord Gj7t//rr made a (land, and upon what foundation did he Itop? Why, the general principle he went upon was, that lic would lay hold of any words to prevent hit being bound by the former cafes, rather than introduce the in- convenience of ruining eflatos ; and it is the fame ground courts of equity have gone upon in fubfequent cafes ; for if they could find any words or word that were different from former cafes^ they have laid hold of them to avoid determining like thofc cafes which had introduced fuch plain inconveniences. Vide 2 P. IVms* 452. /efl. 2. the cafe of Butler v. Duncomb.
In a converfation between Lord Macclesfield and Lord Trevor
upon this vrry fubjeiSl, the former faid, he would not cairy it
further than the cafes had already done ; fays Lord Trevor^ I
hope you will not carry it quite fo far.
A? inftanccs of '^^^ cldcft fou is abfolutcly left in the power of the father
ciandcftinemar- during liis lifc, and it IS the couftant courfeof moft fettlemcntsj
riagcswcrene- jj^j y^t it is faid that youugcr children, daughters^ (hall foon
quf.nt/argu- after twclvc ycars old, perhaps without the leave of the fttfaer,
merits of pub- demand her portion in his life-time, though flic married his
nie^icTorhtto footman, or ever fo meanly, for there is no difference in the
hav« gieat marriage flie contracts, if this do£trine (hould prevail : and
weiijhc. while I am upon this head, I muft obferve, that arguments
from publick inconvenience ought to have great weight in this
ag?, as indances of clandcdine marriages were never more
frequent.
In Butler vcrfus Duticomb^ Lord MaccU'sfield took a middle way ; he rcfuffd to raife the portion before the term came into poiTcliion, but then he made the reverfionary term a fccurity for tiic principal fum.
(i) Vide Ls^n v. Duke of Chctndcs^ f^Ji. 417.
• A frnn limirfdin remainder after the father's death, in truftfor rjJfing ^ught«n* po;t'nr«ar fi'ch an age, or marriage, when cither hafprns, d>G portions may be raifcd i(i the t.«rHer'- life-time ; fo if on concin^rncy, -mnd ihc contingenty happens in th^ lif:: c: the xaiher, buiootbcigre ch: conungcficy happened, x iialk. 6o,
If
in the Time ^F Lord Chancellor IIardwicks. 4a
If Bromc vcrfus Beri/ey, Eq. Caf. Abr. 340. is an authority, Stivins v. from the very terms of it, it holds more ftrongly here, bccaufe *TiiM:r. the biH -there was to raife a portion in the life-time of the mo- ther only 5 there the father was dead, and no iflue male, only one daughter; that daughter was married, and confidcrably advanced in years, and the bill brought for file of the rever- fionary term ; but refufcd both here and in the Houfe of Lords j whstf were tlic |rrounds of the rcfufal ? why, that maintenance bein^ given, and by the very terms of the truft to precede the portion, and net be raifcd till the term took cfieft in poiTefiion, a fortwri the portion was not due and payable till then.
Apply it to the prefent cafe
The truftees of tlie term are, in default <)f iflue male, l^c. vide -Ac fettlemcnt.
And aMb tiiat fudi dawgliter or daughters, fsfr. vide the claufe f 43 ] of maintetiance.
The plaintifPs cafe here is the fame, only there' it was prayed tobe raifed in the life- time of the mother, here in the lilt: even of the father, which, if any thing, is more unfavourable.
The maintenance there was to be T»feil out of the rents and profits after the firft quarter-day when the term (hall take eflTe^ "inplfejnm.
Here the words in the mean ti40£ are words of relatioH, and refer no: only to a time that is to begin, but to a time which is alfe to end.
Out of what rents, iflucs and profits can the truftees then re* <:civcany thing, can they bring ejeftnients? No, for they can- Tm enter to raife money out of the profits till after the death of die father.
I am of opinion that the father might liave £bW the rever- lion, fubje<l to this term, which fhews that the whole truit of ihe^erm was to uke cflcft after the death of the father.
By tlie fame arguments as have been mnde ufc of for ralfing the portion now, the maintenance might be raifed in the life- time of the father as well as the portion ; but it is the fubfe- •quent words that confine it to the time of the term's taking <fk6t in poiTefKon.
It is faid that in Ac cafe oi BrcineycxiyM Berkley^ there are chefe words, lake effeB inpoffejfion^ and no fuch words here, but made ufe of there only to Ihew that maintauncc could Jiot be raifed in the life-time of the mother.
The fame argument will hold fall as ftrong litre, for tliough the words are not exa£lly the fame, yet -tlicre are words of equal iorce, Wz. Expectant isfofi the determifietiun cf the tenn.
There ar« no grounds to decree this oihcrwifc than the cafe of Srome verfus B^rk/eyy 'whidx went througJ* fuch a fokmn de^ termination.
Therefore I think it rigW, to lay hold of words to fupport the parental authority, rather than to give licence to daughters t^ «narry improvidently ; for which is moft likely, that a father 4bou!d be fo unnatural to fuffer a daughter to ilarve who has done
D 4 nothiflg
43 CASES Argued and Determined
Stevens v. nothing <o merit fuch ufage, or that a child who lias little or,no experience fliould be drawn into marry imprudently, who is en- tirely out of the controul of the father, and may raifc her por- tion upon his eftnte in his life-time? [ 44 3 1'^^ ^^^^ o^ ^''^^ verfus Carter wms very dilTerent in many
rcfpedls, nor was it on a marriage (ettlcment.
The determination that I have now given, is rather nearer to the intention of the parties, and at the fame time will prevent very great inconvcniencies, which are the natural confcquencc of decreeing portions to be raifed in life of the father ; and therefore let the bill be difmifTed, bnt ivithut ccjls.
% Strt. T187. The following cafe fecms to he a material one in regard to property f
v^'^^ Ah^' 1 ^^^ ^'^^y *^^^y P*'^^^^h ^^ ^fi^^ cited in a court of equity as luell as in
4. p. 9. Sec courts cf law \ and as I happen to have a fuller note of it thnn any
Fortefc. Rep. which has yet appeared tn print ^ flatter myfelf the utility cf ii will he
*^' ' an excufefr its appearing here.
Cafe i8« Hartcp verfus Hoarc isf aP, Eajlcr Term 16 Geo. 2. B.R.
^xxjobnJUrtrf, JUDGMENT in this cafe was given for the plaintiff by jrwVhLfifc''* J Lee Ch. Juft. who delivered the opinion of the court to
cu.iodyinthc this cffedt. hands of Seamcr
a j;weller, inclofied in a paprr that;, was feaied» and put in a bag, which was alfofea'cd with uie plain* t)tf *i fa^l) and depolited at S$amcr'% houfc, and ihe fame day his derk |ave a receipt for them in thefe words, Which bag, fo fcalcd, I promife to take care of for Sir John llart^p, for my maftcr Jamtt Sem" mcr'j figncd Mictatl Hvtl \ anJ in the receipt all the jewels were fpccificd. In Vdtruary 1735, Seamet broke both the fcals, took out the jewels, ajid carried them to Mr. Houic% the banker'* fllop, borrowed 300/. of the deicadant, and drpofited the jewels as his own proper goodk and as a focurity tor the 300/. and gavr his promiflbry net© f >r the fame funi ; on Mr. Heart's refufing to deliver the jewols to Sir ^&inf Hartop, he brought an adion of i rover and convcrfion againll him ; and the jury having a doubt whether ihe defendant was guilty of a convcrfion or not, they referred it to ihe opinion of the court of King's Bench, by nndinj a fpccial verdift, who this day gave judgment for the plalatifl' unanimouHy (i).
This is an aft ion of trover and convcrfion, wherein tlic plain- tiff declared that he was polTeffed of a pair of fmgle ftone brilliant diamond car-rings, t3lc. as of his own proper goods, and ihat he loft them, and they came to the hands of the defendants, who converted them to their own ufc \ to this the defendants have pleaded not guiky, and the caufe was tried at Guildhall^ and tlie jury found a fp'jc:.il vcrdi6l to this effect.
*' That the plaintiff, being owner of the jewels mentioned ** in the declaration,, on the \2ih o^ January y 1729, lodged ** them with other jewels for fafe cullody only in the hands of •* James Seamer, jeweller and banker, inclofcd in a paper, *' which paper was fcaled, and put in a bag, which was alfo
(1) Vide Afar/J:n r. Pa-fonU, I Vern, Jrnkin:, 4 Fin. 6. 'pL 4, Blu.k v. NUMs^
407. Dana^nbniy v. Mttculfe^ 2 /V«. ihid. 7. pL 5, Fot/JW infill \, F^^Ji,ibid, ^
691. Hcare v. Parker y 1 Bro. Cha. Rep, pi, 0. 578. 2 DurH. & Eaf^ 376. HWhct v.
«« fcalcd
in the Time of Lord Chancellor HARDvricnE. 44
• <• fcalcd with the pbiiultF's fcal, and depofitcd them at Seamerh ""^o^aYeJ' • « houfe in Fleet-Jlreet^ Londofj, and took a receipt for tlitm in « the words and figures foUowing-
« Jan. 12, 1729. Received of Sir Johi Hart'-.p, Bnrt. the " following jewels, r/z. a pair of diamond car-rin;]:?,, ^f* <* (mentioning and dcfcribing the jewels for which the prefcnt L 45 J 4* acVuxi is brought) all which are fealed up in a bag feuled 4* with Sir John Hariofs feal, wliicli bag, fo fealed, I pro- «* miU to take care of for him, for my mafter James Seamer.
" Signed Miihae! Hull.
" On the 3d of February 7735, Scamer broke both the feals* " and took out the jewels, and carried tliem to the defendant's " (hop, which is a public open (hop in Fleet-Jlreet in the city " of LsndoTiy where the defendants carried on the bufinefs of " bankers, and alfo traded in jewels, and frequently lent money " on the fecurity of je\ircls, and then and there the faid Jawcs ** Sw/w^r borrowed the fum of 300/. of the defendant, and de- " pofited the jewels in the declaration mentioned, as his own " proper goods, and as a fecurity for tlie faid fum of 300/. then ** paid him by the defendants in their faid public and open fliop, " and the faid Seamer then gave tlie defendants his prqnlifl'ory " note for the fame fum fo borrowed.
" And they further find that the faid James Seamer had no " alithority from the plaintiff to fell, pawn, or difpofe of the " faid jewels, and that the defendants not having been paid this *• fumof3or /. fo lent by them, they had been requefted and *' rcfufed to deliver the aforcfaid jewels to the plaintiff, and hav* •' kept them to their own ufe.
"That the faid ^r^w^r continued in pofTefTion of the faid jewels " until he pledged them to the defendants ; that in Jamtary 173^5 " the faid Seamer became a bankrupt, and that