(flornpU ICatu ^rljnnl ICibtatg Cornell University Library KF8853.1.V231861 The equity draftsman :being a selection 3 1924 020 121 772 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020121772 THE EQUITY DRAFTSMAN, BEING A SELECTION OP $mm% n! ||lmMup SUITS IN EQUITY. A - OBieiNALLT COMPILED BY Fri.'VAN HEYTHUYSEN, ESQ., BABEISTEB AT LAW. BETISED AND ENLARGED, WITH NIIMBEO0S ADDITIONAL FORMS AND PRACTICAL NOTES, BY EDWARD HUGHES, ESQ., OF LINCOLN'S INN, BAREI8TIE AT LAW. FROM THE LAST LONDON EDITION, WITH COPIOUS NOTES AND REFERENCES TO AMERICAN CASES, BY A MEMBER OP THE PHILADELPHIA BAR. PHILADELPHIA: H. P. & R. H. SMALL, LAW BOOKSELLEES AND PUBLISHERS, NO. 21 S. SIXTH STREET. 1861. ;.v / J K/ Entered, according to Act of Congress, in the year 1861, BT H. P. & B. H. BMALL, In the Clerk's OfiSce of the District Court of the United States for the Eastern District of PennsylTania. PILE b m'eleot, pk's, LODQE STREET. PUBLISHERS^ ADVERTISEMENT FOURTH AMERICAN EDITION. Another edition of this valuable collection of Equity Precedents hav- ing been called for, the Publishers have caused copious notes and refer- ences to the American cases to be added to it, with the hope of rendering the work still more acceptable to the Profession. The object of the Editor, in preparing the notes, was not to present a series of essays, but rather to bring to the immediate notice of the draftsman, from the Reports of the different States, a body of references which might be of practical convenience or service to him, while engaged in the preparation of his pleadings : accordingly, citations have been made from the decisions of all the States, and authorities have been accumulated, so as to indicate, if possible, to each practitioner, some of the adjudications of his own tribunals. Philadelphia, April, 1861. ADYERTI8EMEIT SECOND LONDON EDITION. A SECOND EDITION of tMs work (which was originally published in one volume,) having been for some time in request, and the original Author laboring under that disorder which ultimately proved fatal to him, the present Editor was induced to undertake the task of preparing a new edition, and, with a view to render the work of greater utility in practice, he proposed to adopt an alphabetical arrangement of the subject-matter under new titles, and to add short notes of points of practice, which might be useful to the student in framing pleadings ; with this design, it became necessary to re-model the former edition, and to supply various deficiencies. To point out more particularly the alterations which have been made, it is necessary to state, that some of the forms inserted in the first edition have been omitted, but such only as were found to be of no utility in prac- tice ; matters in bankruptcy and lunacy, not coming strictly within the title of the work, have also been omitted, and this the Editor was the more readily induced to do, as the various modern Treatises on the Bank- rupt Law, and Mr. Collinson's Treatise on Lunacy, contain everything which is useful. A great variety of forms of pleadings, collected by the present Editor, have been introduced, and he has availed himself of several valuable forms, to be met with in Reports lately published. Common forms have also been prefixed to several divisions, and introductory observations added in their appropriate parts, as to the mode of framing different species of pleadings ; where, however, the observations necessary to have been introduced, in order to afford a correct view of any particular sub- ject, as, for example, under the title of Pleas, would have extended to 2 VI ADVBETISEMENT. great length, referenceias been made to those works where all the learn- ing and cases will be found collected. The new Orders in Chancery having altered the practice, as stated in some of the notes which have been printed previously to the issuing of those orders, the Editor deemed it advisable to insert them, and a full index is also added to them. An Epitome has been added in the margin wherever requisite, and a new and copius Index is inserted, with reference to the Table of Contents. Having thus explained, as shortly as possible, the nature and design of the alterations which have been made, the Editor submits the work to the indulgence of a candid and liberal Profession; fearful however, that many errors and omissions, notwithstanding the pains which have been bestowed, may yet be found in the work, the Editor will feel happy in receiving any suggestions which may occur to the reader. To those friends who have favored him with the loan of any pleadings, the Editor begs leave to return his sincere thanks for their kindness. E. H. 40, Chanoebt Lane, Septembeb, 1828. PREFACE THIRD AMERICAN EDITION. This work, in tlie hands of the learned Editor of the second English Edition, has been so much enlarged and improved, as to render it a new work. It is now the best Treatise upon Equity Pleading extant. It was desirable, therefore, that no part of so excellent a work should be lost. Nothing has been omitted which possibly might be useful in practice. The precedents relating to Tithes have been cut out, being of no use in this country. Other portions of the work might also have been omitted, but as the practice is different in different States, it was con- sidered better to retain a little which might be of no use here, rather than hazard the loss of something useful elsewhere. In bringing the two volumes into one, convenience and economy have been regarded; and the Table of Contents and General Index revised to conform to the present edition. Januaby, 1843. TABLE TITLES, DIVISIONS, AND SUB-DIVISIONS, CONTAINED IN THIS VOLUME. CHAPTER I. The formal parts of a bill in equity, CHAPTER II. ORIGINAL BILLS PRAYINGS RELIEF. 1. Bills for specific performance of agreements, 2. Bills to cancel agreements and other instruments, 3. Bills relating to annuities, . 4. Bills by assignees on behalf of bankrupts' estates, 5. A certiorari bill, .... 6. Bills to compel the acceptance of a composition, 7. Bill to restrain the infringement of a copyright, 8. Bills by creditors for payment of debts, 9. Bills to compel the delivery of title-deeds, 10. Bill for dower, .... 11. Bills of foreclosure, 12. Bills of interpleader, 13. Bills for payment of legacies, and also to carry the trust 14. Bills by and against lords of manors, 16. Bills by next of kin for account, . 17. Bills for partition, .... 18. Bills relating to partnership matters, 19. Bill to have a portion for younger children raised 20. Bills for redemption, 22. Bills for the appointment of new TRUSTEES, 23. Bills by underwriters in respect of frauds practised upon of ships, ..... 24. Bills to restrain waste, of wills into execution. them in the insurance 29 87 94 109 111 116 124 169 175 181 204 212 267 291 298 302 313 317 330 341 350 CHAPTER III. original bills not praying belief. Sect. I. Bills to perpetuate the testimony of witnesses, Sect. II. Bills for discovery, ... 358 373 CHAPTER IV. BILLS NOT ORIGINAL. Sect. I. Supplemental bills, . Sect. II. Bills of revivor. Sect. III. Bills of revivor and supplement. 401 413 425 CHAPTER V. Bills in the nature of original bills, 444 TABLE OF TITLES. CHAPTER VI. CHAPTER VII. CHAPTER VIII. CHAPTER IX. ANSWERS. Sect. I. Forms of titles, .... Sect. II. The commencement, . ' . Sect. III. Common form used in framing answers. Sect. IV. The conclusion, .... Sect. V. Forms of answers, .... Inpoemations, Petitions, Affidavits, Answees and disclaimers, Dbmureebs, Pleas, Replications, Examinations, . Sect. I. Exceptions to answers, Sect. II. Exceptions to reports. CHAPTER X. CHAPTER XI. CHAPTER XII. CHAPTER XIII. CHAPTER XIV. exceptions. CHAPTER XV. interrogatories. Sect. I. Forms of titles, and of the first and last general interrogatories. Sect. II. Forms of interrogatories for the examination of witnesses in chief. Sect. III. Forms of interrogatories for the examination of parties, and also for the ex amination of creditors and their witnesses, and others, under decrees and decretal orders, ......... Sect. IV. Forms of interrogatories for the cross-examination of witnesses. Interrogatories to the competency of witnesses, exhibited to them on their cross-exami- nation, Interrogatories for the examination of a witness on the voir dire, as to his being in- terested. Articles to discredit witnesses, . Forms of orders (interlocutory,) Decrees and decretal orders, . Orders in chancery, CHAPTER XVI. CHAPTER XVII. APPENDIX. 457 502 556 563 565 566 569 569 619 622 640 660 662 672 676 685 758 786 792 793 794 796 823 873 CONTENTS. •■^* The forms to which an asterisk is prefixed, have been inserted by the ENGLISH EDITOR; CHAPTER II. OEIGINAL BILLS PEAYING RELIEF. I. BILLS fOR SPECIFIC PERFORMANCE OF AGREEMENTS. * 1. Bill by a vendor against a peer for the specific performance of a written agree- ment for the purchase of a freehold estate, the title only being in dispute, 1 2 ib. ib. ib. CHAPTER I. THE FORMAL PARTS OF A BILL IN EQUITY. I. The address, ....... In Chancery, ...... In the Exchequer, ..... In the Lord Mayor's Court of London, In the Chancery of the Duchy and County of Lancaster, In the Chancery of the Great Sessions for Carmarthenshire, . . ib II. The INTRODUCTION AND NAMES OF THE PARTIES COMPLAINANTS AND THEIR DESCRIPTIONS, 2 In Chancery, . . . . . . . . . ib. In the Exchequer, . . . . . . . . ib. In a suit in Chancery by a body corporate, . . . . .3 In a suit by a, feme covert, whose husband ia made a defendant, . . ib. In a suit by a, feme covert, whose husband has abjured the realm, or who has been transported, or is an alien enemy. In a suit on behalf of an infant. In a suit on behalf of a lunatic, In a suit onbehalf of a person deaf and dumb. In a suit on behalf of the Crown, or the Queen consort. In a suit on behalf of a charity, the relators having no particular interest, . ib. In a suit on behalf of a charity, the relators, a corporation, having an inter- est in the matter in dispute, . . . . . . . ib. In a suit by the Attorney-General on behalf of a lunatic, . . .5 IV. The general charge of confederacy against the persons complained of, . ib. VI. The general averment that the acts complained of are contrary to equity, concluding with the introductory words to the interrogating PAEt, . ib. VIII. The prayer for general relief at the discretion op the court, . . ib. IX. Prayer op process of subpoena, . . . . . . .6 Of process, when his Majesty's Attorney-General is also a defendant, . ib. For a letter missive, . . . . . . . . ib. For an injunction to restrain the defendant from proceeding at law, . ib. For an injunction to stay waste, . . . . . .7 .'Foi a. 'writ oine exeat regno, . . . . . . . ib. For a writ of certiorari, . . . . . . . ib. ib. ib. 4 ib. ib. XU CONTENTS. 11. Bill by a vendor for the specific performance of a written agreement for purchase of a freehold estate entered into with his agent, . . . • .9 * III. Bill by a purchaser against vendor for specific performance of a contract for sale of a freehold estate — charging that the purchase-money had remained unproduc- tive in the plaintifl^'s hands. — The estate had been previously put up to sale by public auction and bought in, and the description in the agreement referred to the particulars of sale. (The interrogatories are inserted,) . . . . • .12 IV. Bill by first vendee against vendor and a subsequent purchaser from him, for the specific performance of an agreement entered into by the vendor with the plaintiff for the sale of a copyhold estate, charging the subsequent purchaser with notice, and pray- ing that he may surrender the estate to the plaintiff, or (in the alternative) if he had no notice, then that the vendor may 'account for the difference in price. Praying also for an injunction to restrain the defendants from bringing an ejectment, . . 14 v. Bill by first vendee against vendor and a subsequent purchaser from him, for the specific performance of an agreement entered into by the plaintiff's agent with the vendor, for the purchase of a freehold estate at a sale by auction. — Charging the sub- sequent purchaser with notice, and also charging the vendor with acts of waste. Prayer for an injunction against both defendants to restrain waste, . . . ' . 17 VI. Bill to compel the execution of a lease by the defendant whose agent had entered into an agreement to grant a lease to the plaintiff, the widow of a former lessee, and her co-plaintiff as her surety (the old lease having been granted by the father of the defendant.) The agreement constituted by letters between the parties and confirmed by the defendant, .... . . .21 VH. Bill by lessee against lessor for specific performance of a written agreement for a lease of a house. . . . . . . . . .23 VIII. Bill by lessee against lessor for specific performance of a verbal agreement for a lease of a farm made with the lessor's agent, the plaintiff having occupied the farm under an old lease granted by a former owner — praying also for an injunction to restrain the defendant from proceeding in an action of ejectment, . . .24 IX. Bill for the specific performance of a written agreement for the purchase of lease- hold premises, made by defendant with the plaintiff's agent; defendant alleging that the original lease is lost, plaintiff offers to grant him an under-lease, . . .26 X. Prayer to a bill for specific performance of an agreement, on the faith of which plaintiff had taken possession, had paid off part of a sum due on a mortgage, and laid out considerable sums in repairs and alterations ; there being a previous settlement of which plaintiff had no notice ; prayer for a specific performance if a good titlfe can be made, and if not, then for an account and payment of the moneys advanced by plaintiff and expended in repairs; and in default of payment, then that defendants may be de- creed to assign the mortgage security to plaintiff for securing the amount, so to be ascertained, ......... 27 * XI. Prayer of a bill by a surety to compel a specific performance of an agreement to execute a mortgage to indemnify the plaintiff from all liability ; praying also for a wrifut ne exeat regno, . ........ 29 2. BILLS TO CANCEL ASBEEMENTS, BILLS OF EXCHANGE, BONDS, AND OTHER INSTRgMENTS. * XII. Bill by the acceptor against the assignees of the drawers, bankrupts, the in- dorser and holder, to restrain proceedings at law upon an accommodaiion bill of ex- change, and to have the same delivered up to be cancelled, . . . .29 * XIII. Bill by a trader who had compounded with his creditors, against two creditors who executed the deed of composition, and had fraudulently gained an advantage over the other creditors by compelling the plaintiff previously to give them his promissory note for securing an additional payment of £1000; one moiety of which the plaintiff's paid, and gave a bill of exchange for the remaining moiety, which not being piiid, the two creditors proceeded by process of foreign attachment in the Lord Mayor's Court to attach a sura of money belonging to the plaintiff in the hands of a third person. The prayer is to have the bill of exchange cancelled, and for an injunction to restrain the two creditors from proceeding in the attachment, and from negotiating the bill of ex- change, and also to restrain the garnishee from, paying over the moneys in his bands, 34 The observations of the learned counsel who drew the bill, are added at the conclusion, 41 XIV. Bill to have a bond and other securities cancelled, which the plaintiff', in order to procure his discharge from an arrest, had executed to the defendant in lieu ol former securities given for money won at play; praying also for an injunction to restrain the de- fendant from proceeding at law, and from entering up judgment on a warrant of attorney, 41 * XV. Bill by two merchants, partners, against several merchants partners in differ- ent firms, who had formed a special partnership together, for dealing in spelter, and CONTENTS. Sdii having purchased or contracted for all the Silesia spelter which could be furnished from the mines during the year, afterwards by their brokers (who concealed the names of their principals) entered into several contracts with the plaintiffs and many other persons, for the purchase and delivery of Silesia spelter at various times when none could be procured except from the dufendants or their agents, and at very exorbitant prices. — Charging that the defendants caused some small quantities to be bought and sold by their agents for the purpose of obtaining a statement of artificial prices ; — the brokers are made parties defendants, being charged with having participated in the profits, and as having an interest in the contracts entered into with the plaintiffs. The prayer is, that the contracts entered into with the plaintiffs may be declared to have been obtained by fraud, and may be delivered up to be cancelled, — for an injunction to restrain proceedings at law, and that the defendants may pay the costs of the suit, 45 * XVI. Bill to have an agreement for a building lease of a piece of ground delivered up to be cancelled, on the ground o'f gross fraud and misrepresentations on the part of the defendant, — an account taken of the moneys advanced by the defendant to the plaintiff, and also of the sums paid by the plaintifl'to the defendant, and that the amount of the latter may be set off against the amount of the moneys advanced, — that a bond executed by the plaintiff to the defendant may be declared to stand as a security only for what is actually due to the defendant, and upon payment thereof may be delivered up to be cancelled, and for an injunction to restrain all proceedings at law, . . 53 XVII. Cross bill to set aside an agreement for the conveyance of a piece of ground, the specific performance of which was sought in another suit. The cross bill being filed by the defendant to the original bill, and the party to whom she had sold and conveyed the piece of ground, against the plaintiffs in the original bill, one of whom was tlie solicitor to the other, and as alleged had purchased the ground under the agreement sought to be set aside, but with full knowledge that his co-plaintiif had waived all claim under the agreement, . . . . . . .61 XVIII. Bill by lessee to have an agreement delivered up to be cancelled, by which he gave up the remainder of his lease contrary to his intention, he not being able to read or write ; praying, also to have the original lease confirmed, — also for an account and repayment of the land-tax paid by the plaintiff, and for an injunction to restrain the defendant from proceeding in an action of ejectment commenced by him, . . 64 XIX. Bill to set aside indentures of lease and release which conveyed away an estate absolutely, though they were intended to operate only as a security for a certain sum of money, ......... 6Y XX. Bill by heir at law to set aside a surrender of copyhold land and a will of real estate,, as having been obtained from the plaintiff's grandfather in extreme illness, when he was incapable of understanding the efl'ect thereof. Praying that the surren- der may be declared void, or that the surrenderee may be declared to be-a trustee for the plaintiff, and may be decreed to surrender the, premises to him, and account tor the rents, — that an issue may be directed to try the validity of the will, and if found against it, that the same may be cancelled and the title-deeds delivered to the plaintiff, — an account taken of the rents received by the defendants, also of the deceased's per- sonal estate, debts, &c., and for payment out of the personal estate of a mortgage charged upon the copyhold premises, and that plaintiff may be paid one-sixth of the clear residue; or, if the will is valid, that plaintiff may be paid such share as he is entitled to under the same, ...... . Tl XXI. Bill by a widow to have a bond delivered up which her husband had given 'o bis father, (charging that it was meant as a security for a return of part of the for- tune which defendant had pretended to give him on his marriage,) and for an injunc- tion to restrain the defendant from proceeding in an action commenced by him on the bond, ........... T6 XXII. Bill against the executors of the obligor to have a bond delivered up to be cancelled, which had been given to secure the consideration-money for the purchase of the testator's supposed interest in certain farms for the residue of a term of years, it afterwards appearing that he was only tenant from year to year, and plaintiffs hav- ing received notice to quit. Praying also for an injunction to restrain the defendants from proceeding in an action commenced by them on the bond, . . '79 XXIII. Bill by sureties in a bond (which had been executed (previously to an award being made) at the suggestion of the arbitrators, by one partner to another, for indem- nifying him against the partnership debts, and for securing payment of a sum of mo- ney) — against the obligee, and the assignees of the partner obligor bankrupt, praying to have the bond delivered up to be cancelled, and for an injunction to restrain pro- ceedings at law on the ground of the award being void, . . . .80 * XXIV. Prayer of a bill to set aside a lease which had been granted upon the surrender of a former lease, and for an account of earth and gravel dug up beyond the quantity allowed under the old lease ; plaintiff offering to grant a lease to continue for XIV CONTENTS. such term as was granted by the old lease, and to confirm any under-leases granted by the defendant; — Praying also to have an agreement and bond delivered up, and for , costs against the defendants; — Praying also, in the alternative, that if the new lease ought not to Ije set aside then that the same may be rectified, and for an injunction to restrain the defendants from digging gravel or committing waste, or granting under- leases, . . . . . . . . . . ■^ . 83 XXV. Pretences and charges in a bill to set aside an assignment of effects for the benefit of relations, as having been made without consideration, and when the assignor was considerably in debt, . . . . . . • .84 XXVI. Pretences and charges as to a release of all claims set up by the defendant, 85 3. EILIS RELATING TO ANNUITIES. XXVII. Bill by an annuitant for an account of money produced by sale of timber, which had been felled for the purpose of redeeming his annuity, and had been applied by the trustees in discharge of the arrears of another annuity, . . . .87 * XXVIII. Bill by the grantor of an annuity and his surety against the devisee and executors of the grantee (one of the executors not having proved or renounced,) to set aside the annuity on account of inadequacy of price, the annuity being secured by bond and a warrant of attorney. Prayer that upon repayment of the money advanced with lawful interest, the bond may be delivered up to be cancelleji, and for an injunc- tion to restrain the defendants from taking out execution against the plaintiff?, . 90 XXIX. Charges in a bill brought to establish an annuity charged on an estate which the defendant alleges to have purchased for a full consideration without notice, . 93 4. BILLS ET ASSIGNEES ON BEHALF OF BANKRUPT'S ESTATES. XXX. Bill by the assignees of a bankrupt against bankers for an account of the money produced by sale of certain estates which had been conveyed to them in trust for securing certain advances to be made by them for the bankrupt. (The interroga- tories are inserted,) . . . . . . . . .94 XXXI. Bill by the assignee of a bankrupt's estate to set aside an assignment of the lease of certain premises made to the defendant by the bankrupt a short time previous to his bankruptcy, ' . . . . . . . . .98 XXXII. Bill by the assignees of the estate of a bankrupt, who was entitled to ooe moiety of his father's residuary estate, against the executrix and trustees of the will, and the son who was entitled to the other moiety, the dividends of the entirety being given to the widow for life ; — Prayer for an account of testator's personal estate, debts, and legacies, that the residuary estate may be ascertained, and one moiety carried over to the bankrupt's account, subject to the testator's widow's life interest therein, and that an inventory may be made of tue effects bequeathed to her for her life, and de- posited with a Master, . . . . . . . . . joo * XXXIII. Bill by the assignee of a bankrupt's estate for an account of mercantile dealings and transactions between the defendants and the bankrupt, and for payment of the balance due from the defendants, . ...... 102 * XXXIV. Bill by the assignees of a bankrupt's estate (one of whom bad been ap- pointed assignee in the place of a former assignee become bankrupt) for an account of the proceeds of a shipment of goods made by the bankrupt, and for a writ of 7ie exeat regno, ........... 106 The observations of the learned counsel who drew the bill are added, . . 108 5. CERTIORARI BILL. XXXV. Bill for a writ of certiorari to remove proceedings from the Lord Mayor's Court in London, on the ground of one of the plaintiff's witnesses residing out of the jurisdiction of that court, . . . . . . . .109 6. BILL TO COMPEL THE ACCEPTANCE OF A COMPOSITION. XXXVI. Bill by insolvent partners and certain persons who had been appointed in- spectors, and had also become sureties for them for the payment of certain instalments against a creditor and the executors of the deceased trustee under a deed of trust alleged to have been executed by the other defendant the creditor for the benefit of his creditors, — to compel them to accept a dividend declared by the inspectors, and for CONTENTS. XV an injunction to restrain proceedings at law for the recovery of tiie original debt. — Tlie creditor defendant having signed certain articles of agreement made for carrying into effect the resolutions come to at a general meeting of the insolvent's creditors, but had refused to sign the deed founded on those articles, under a pretence of a variation in the trusts declared, and that before he had signed the articles of agreement he had made over all his property for the benefit of his creditors, .... Ill 7. BILLS TO RESTRAIN THE INPRINGEMEIIT OF A COPYRIGHT. * XXXVIl. Bill to restrain the defendant from selling a pirated edition of plaintiff's work, and for an account of the profits made by the defendant, . . . 116 XXXVIII. Charges in a bill to restrain the defendant from selling a pirated edition of a book, .......... 120 XXXIX. Bill to restrain the defendants from printing and publishing the trial of Lord Viscount Melville, the exclusive right having been given to plaintiffs by the Chan- cellor, under an order of the House of Lords; — Praying also for an account of the pro- fits made by the sale of the work, ....... 121 The opinion of the then Solicitor-General is added at the conclusion, . . 123 8. BILLS BY CREDITORS FOR PAYMENT OF DEBTS. . * XL. Bill by simple-contract creditors against the executrix and executor of the deceased debtor, whose estate is alleged to be insolvent ; — Prayer for an account of the testator's personal estate, debts, &c. and to have the personal estate duly administered ; — Praying also for a receiver, and an injunction to restrain the defendants from getting in any outstanding personal estate. With variations enclosed within brackets, adapted to the case of a trader who has died intestate possessed of real estate, . . 124 XLl. Bill by simple-contract creditors against the executors of the deceased debtor for payment of his debts, ........ 12'7 XLII. Bill by simple-contract creditors against the deceased's administratrix and heir at law; the administratrix alleging that the personal estate is insufficient, and has been applied in payment of specialty debts ; — Prayer to have an account taken of the moneys due to the plaintiffs, of the intestate's personal estate possessed by the admin- istratrix, and of the rents of the real estate received by the heir at law, and for pay- ment of the plaintiflFs' demand out of the personal estate, if sufficient, but if insufficient, then praying that the specialty debts may be raised and paid out of the real estate, and that the simple-contract creditors may have satisfaction out of the real estate, so far as the personal estate may have been applied in payment of specialty debt?, . . 128 XLIII. Bill by the executors of an obligee in a bond and simple-contract creditor, on behalf of themselves and other creditors, against the administratrix of debtor and his heir at law; — charging that the administratrix is in possession of the leasehold pro- perty, that she has not exhibited a correct inventory into the Ecclesiastical' Court, and sets up a settlement as to part of the real estate, and claims her dower out of the other part. Prayer for an account of what is due to the plaintiffs, — an account of intestate's personal estate, debts, &c., and the rents of his real estate, and for a sale of the real estate in pid of the personal estate, ...... 132 * XLIV. Bill by husband and wife in right of the wife as administratrix of an ob- ligee in a bond, to attach a legacy to which the obligor was entitled, while in the hands of the testator's executor; (the plaintiffs had brought an action on the bond, to which the defendant pleaded his discharge under an insolvent act, but admitted the debt; the plaintiff's thereupon took judgment for the debt-and damages, and afterwards the legacy in question having been bequeathed to the defendant, they sued out afi.fa. and took out a warrant for levying the debt and damages out of the legacy.) The prayer is for an account of what is due in respect of the principal, interest, and costs at law, and for payment thereof out of the legacy ; and in case the executor should not admit assets sufficient to pay the legacy, then for an account of the testator's personal estate, and the rents of the real estate charged with the payment of the legacy, and if necessary, for the sale of the real estate, and for an, injunction to restrain the executor from paying over the legacy, ........ 135 * XLV. Bill by creditors on behalf of themselves and all other creditors parties to a deed of trust executed by a merchant, who had assigned the moneys due on several policies of assurance upon a ship and her cargo, (which had been lost at sea,) in trust for the benefit of his creditors, against the trustee, who was also a creditor to a large amount, and had been the merchant's agent in effecting the insurances, — Charging him with neglect of duty in making some of the insurances, and mismanagement of part of XTl CONTENTS. the property assig;ned, also with having received part of the moneys assured, and ap- plied the same to his own use ;— Prayer for an account and an equal division of the moneys received by the trustee, and for the appointment of a new trustee in his place, 139 * XLVI. Bill by creditors against the assignees of a bankrupt and also the bankrupt, who was the acting executor under a will and also the general agent and consignee of the testator, his co-executors who had not proved the will being also made defendants; — Prayer for an account of testator's personal estate, debts, &c., and to have the per- sonal estate administered ; Charging that part of the personal estate was existing in specie in the hands of the bankrupt at the time of his bankruptcy, and had been pos- sessed by his assignees ; — Praying also for an account of what was due to the testator's estate from the bankrupt, and that the amount may be proved against the bankrupt's estate; for a receiver to collect the outstanding personal estate, and particularly a, quantity of cotton which had been bought by testator's agents in India, with the bal- ance of an account due from them, and had been consigned to the bankrupt as execu- tor: that the receiver may be authorized to insure the cotton, and to sell the same on its arrival, and also to receive the dividends to arise in respectof the debt to be proved against the bankrupt's estate, and for an injunction to restrain the bankrupt and his assignees from receiving the cotton and any outstanding personal estate, . . 143 XLVII. Bill by a judgment creditor on behalf of himself and the other cred,itors of the intestate, against his administrator and heir and law ; — Praying a sale of mort- gaged premises to pay off a mortgage made to the plaintiff, and in case of a deficiency to be admitted a creditor on the general assets of the intestate; praying also for pay- ment of the arrears of an annuity secured by a demise of other premises and by a war- rant of attorney, to have a value set upon the annuity, and the premises sold, and in case qf a deficiency, to be admitted a creditor on the general assets ; praying also for an account of the intestate's personal estate, and to have the same duly administered, 143 XLVIII. Bill by a bond creditor on behalf of himself and other creditors of the tes- tator who had devised certain estates to his brother and heir at law, upon trust to sell, Jo go in aid of his personal estate, — the surplus moneys to be laid 'out in lands to be settled to the like uses as certain other estates, of whiclj testator's brother was tenant for life under the will. — The testator's brotlier entered into possession of the estates devised in trust to sell, and afterwards died, having made a will, and leaving his eldest son his heir at law, who also entered into possession of the same estates, and after- wards conveyed them to trustees for the benefit of his creditors. — The prayer is, for an account of the testator's debts and payment out of the personal estate, and the rents of the estates charged with the payment of the debts ; and in case of a deficiency that those estates may be sold ; also for a production of the title-deeds ; for an account of the rents received by the testator's brother and his son since his death — that the amounts received by the testator's brother may be paid out of his assets, and in case his executors should not admit the same to be sufficient, then for the usual accounts of his personal estate, debts, &c., ........ 150 XLIX. Bill by the trustees of certain lands held in trust for the Algebra Lecturer in the University of Cambridge, on behalf of themselves and other creditors, against the executors of the manager and receiver of the rents, for an account of rents and the pro- ' duce of timber felled received by him, and also Of his personal estate, debts, &c., . 156 L. Bill by bond creditors, co-partners, against the executrix and heir at law, and the parties interested under the will of one of the obligors deceased, and also against the co-obligor ; — Praying for an account of what is due to the plaintiffs, — an account of testator's personal estate and payment thereout, and in case of a deficiency, then for an account of the rents of the freehold and copyhold estates, and for a sale of a sufficient part of the same estates ; and in case all his estates should be insufficient, tben that the defendant the co-obligor may make good the deficiency. (The executrix charged- with having misapplied the personal estate,) ....... 1517 LI. Bill by a joint and separate creditor of certain bankers insolvents, against the trustees under the deed of trust executed for the benefit of the creditors, praying for an account of the separate estate of one of the insolvents, and to be paid joan passu with the other separate creditors, and also to have the deed of trust established, and account taken of all the trust property possessed by the trustees and cff their application thereof, and for a receiver as to the joint and separate effects, . . . . . \q\ Lll. Prayer of a bill filed by the joint creditors of bankrupts partners in different firms — praying to have an account taken of the separate estate of C. S., one of the bank- rupts, possessed by his ass'gnees, and also an account of his separate debts, — also to have an account taken of the debts due from the different firms, which had been proved under the commissions of bankrupt issued against them, and that the separate estate of C. S., after payment of his separate creditors, may be applied towards payment of the partnership creditors, . . . . ."' . . . ig4 LIII. Interrogatories for an account of a testator's personal estate, and the applioa- CONTENTS. XVll tiou thereof by the defendant, and also of the testator's debts and what remain unpaid ; — also of his moneys out at interest, and on what securities ; — of the interest and divi- dends accrued due in respect of personal estate, and of the moneys received by the defendant; — also of the mortgages and incumbrances affecting the testator's estates, and in whom vested ; — also for an account of the testator's real estates, the rental thereof, and of the rents and profits received by the defendant ; — of the rental of a par- ticular manor and of the fines set and payable upon the renewal of any leases, and of all other casual profits, and of the moneys received in respect thereof, and from whom, 165 9. BILLS TO COMPEL THE DELIVERY OF TITLE-DEEDS. LIV. Bill by a tenant in tail claiming under an old marriage settlement,' — praying to have the possession of certain freehold and copyhold estates delivered up to him, to- gether with all the title-deeds and documents relating thereto; And also to have an account taken of the rents and profits received by the defendants, who claim under a recovery alleged to have been suffered of the estates in question, . . . 169 The form of the affidavit to be annexed to a bill of this description is added, . 113 * LV. Bill by a devisee of a freehold estate against the widow of the testator, and a solicitor who had got the title-deeds into his possession ; praying to ijave the title- deeds delivered up, and for an injunction to restrain the widow from proceeding in a writ of dower, .......... 173 10. BILL FOB DOWBR. * LVI. Bill by a widow against the heir at law of her deceased husband and his other children, and also against his executors and devisees in trust ; — Praying that she may be declared entitled to her dower, and to an annuity given to her by her husband's will ; also to have an account taken of his real estates, for a commission to assign to her her dower, and for an account and payment of one-third of the rents accruwi due since her husband's death : — The defendants insisting that the plaintiff is not entitled to her dower and also to the annuity, but ought to elect, . • . . . • . ITS Another form of prayer adapted to the same bill is subjoined, in which compensation is prayed for the value of the plaintiff's dower out of such part of the estates as was directed by the will to be sold in her life-time, .... . 179 LVII. Charges in a bill brought by a jvidow for her dower — the defendants alleging that a sum dne on the testator's bond which they had paid to her, was intended to be discharged by the bequest of a legacy and an annuity to her by his will; that his debts and legacies were not charged on his real estate ; and that an annuity given to her by his will was intended to be in full satisfaction of her dower, and that she ought to elect with regard thereto, ......... 180 11. BILLS OP EOKEOLOSCRE. * LVIII. Bill by a mortgagee for a term of years for a foreclosure, against the sur- viving mortgagor entitled as surviving devisee to the equity of redemption, as to one moiety for his own benefit, and as to the other moiety in trust for himself and another individual (also a defendant) as devisees under another will, .... 181 LIX. Bill by a mortgagee in fee against the mortgagor and a trustee of an outstand- ing term, for a foreclosure, and to have the term, assigned to a trustee for the plaintiff and to attend the inheritance, ........ 185 * LX. Bill of foreclosure filed by trustees and executors, who had lent part of their testator's moneys pursuant to the trusts of his will, upon a mortgage in fee of certain estates (a bond also given as a collateral security,) — against the mortgagor, and by amendment against a subsequent mortgagee. (Two terms of years had been also as- signed to a trustee for the plaintiffs for better securing their mortgage money,) . 188 * LXI. Bill of foreclosure of a copyhold estate by the heir and executors of deceased mortgagees against the devisee of the deceased mortgagor; conditional surrenders had been made by the mortgagor, but the mortgagees, or the plaintiff, their heir at law, had not been admitted, ..... ... 192 LXII. Bill of foreclosure by a mortgagee, — praying for an account of what is due for principal and interest ; and that he may be at liberty to redeem a term created by a will for raising portions for testator's daughters, if anything should appear to be due under the trusts thereof. The trustees of the term had brought an ejectment and re- covered possession of great part of the mortgaged premises, and an injunction is there- fore prayed to restrain further proceedings at law. The mortgagor having taken the benefit of the insolvent act, his assignees are made parties, .... 195 XVUl CONTENTS. * LSin. Prayer of a bill by mortgagees in possession of the title-deeds against the assignees of the mortgagor banlirapt, and a mortgagee who claimed a priority in point of date, (but the circumstances stated in the bill tended strongly to show that his mort- gage had been antedated, the charges relative thereto are introduced : the plaintiff's mortgage was made by indentures of lease and appointment and release, with an assign- ment of an outstanding term to a trustee.) — The prayer is for an account and fore- closure against the second mortgagee, then for a further account, and for a sale of the property before the commissioners (acting under the commission of banlirnpt against the mortgagor;) and in case the moneys to arise therefrom should not be sufficient to pay the plaintiff's mortgage-money, interest, and costs, then for liberty to prove the remainder of the mortgage-money and interest against the separate estate of the bank- rupt, ........... An opinion given by an eminent counsel previously to the bill being drawn, is sub- joined, . . . . . . . . . ■ ■ 201 * LXIV. Charges in a bill by a, mortgagee to establish certain memorandums of agreement given by the mortgagor previously to his bankruptcy, and for a foreclosure against two other mortgagees and the assignees of the mortgagor ; — with the interro- gatories relating to those charges, ....... 201 199 12. BILLS Of INTEEPLEADEB. LXV. Bill of interpleader by a lessee of tithes against the rector, who had leased the same to him and other persons claiming to be entitled thereto, . . . 205 The form of the affidavit to be annexed to the hill is added at the conclusion, . 208 LXVI. Bill of interpleader by the tenants of certain estates against an infant tenant in tail, and the devisees in trust and executors under the will of the infant's father, and also against the acting executor under the will of the deceased tenant for life, and the trustees under a deed executed by him for the benefit of his creditors^ claiming to be entitled to the rent which became due on the quarter day next after the decease of the tenant for life ; plaintiffs holding under verbal agreements made with the deceased tenant for life who had a power to lease by deed, ..... 208 * LXVII. Prayer that the defendants may interplead — that plaintiff may be at liberty to pay the arrears of rent into coiirt, first deducting thereout certain snms for repairs and land tax, — that possession may be delivered to the party entitled, and an allowance made to the plaintiff for certain articles ; and for ao injunction to restrain proceedings in ejectment, and distresses being made upon the premises, . . . .211 13. BILLS FOE PATMENT OF LEGACIES, AND ALSO TO OAKET THE TEUSTS OF WILLS INTO EXEO0TION. LXVIII. Bill against an executor by the husband of a deceased legatee for payment of her legacy, .......... 213 f * LXIX. Bill by husband and wife for payment of a legacy bequeathed to her, — claiming also a share in the testatrix's residuary estate under the bequest thereof in trust for her relations, ......... 215 LXX. Bill against an executor by legatees and the administrator of a deceased legatee, for payment of their legacies and shares of the residuary personal estate, . 217 LXXI. Bill on behalf of infant legatees entitled to a sum of stock standing in the names of the executors ; praying to have a guardian appointed, maintenance allowed for the time past and to come, an account taken of the dividends retained by the exe- cutors, and to have the stock transferred into the Accountant-General's name, . 220 LXXII. Bill on behalf of an infant and only child against the executor of her father's will, who was also her guardian under the will and administrator to her mother; pray- ing to have the trusts of her father's will carried into execution, and an account taken of his personal estate, debts, and legacies, and of the rents and produce of his freehold estates, and of his shares in certain collieries ; praying also that an account may be taken of the personal estate and debts of the infant's mother, and to have the testator's residuary estate secured for the benefit of the infant; — a receiver appointed, and an allowance made for the maintenance of the infant, — (she being also entitled as tenant in tail to certain estates under her parents' marriage settlement and under the will of her grandfather), . . . . . . ... . 221 LXXIII. Bill by legatees for payment of their legacies, and to carry the trusts of the will into execution, and to have the residuary estate ascertained ; — Praying a de- claration that the defendants, the co-heirs at lawof the testator, by claiming and taking CONTENTS. XIX a copyhold estate which had not been surrendered to the use of the will, although intended to pass thereby, had forfeited all benefit under the will, . . . 224 LXXIV. Bill by legatees entitled to the testator's residuary estate in fifths, against the executors and trustees of the will, — praying to have the trusts of the will carried into execution, the accounts taken of the personal estate, debt, &c., and the rents of the real estate; that the estates remaining unsold may be sold under the direction, of the court, and that the trustees may be charged with the losses occasioned by their not investing the produce of certain estates sold by them according to t he trusts of the will ; that the clear residuary estate may be ascertained and secured, and that the widow may ' sign an inventory of the furniture bequeathed for her use during her life, . . 227 LXXV. Bill by an executor and trustee under a will to carry the trusts thereof into execution, .......... 231 LXXVI. Bill on behalf of infants to carry the trusts of a will into execution, and to have the rights of parties declared, — the widow having elected to take under the will. Prayer for an account of the personal estate, and rents of the real estate received by the executors, and that they may be charged with interest for balances in their hands ; — also for an account of debts, &c. for an injunction to restrain the executors from re- ceiving any further personal estate or rents — for a receiver — and for the appointment of a guardian for the plaintiffs, . . . . . . . ' . 234 LXXVII. Bill by residuary legatees (some of them infants) to have the residuary estate ascertained and secured for their benefit ; testator's widow being entitled to cer- tain articles for her life, the bill prays that an inventory may be signed by her and de- posited with a master, ......... 236 * LXXVIII. Bill by certain parties entitled to two-thirds of a testator's residuary estate against the other residuary legatee, (the residuary legatees being also exe- cutrixes ;) praying to have certain sums of stock transferred into the Accountant- General's name, and one third thereof carried over to the separate account of each of the residuary legatees, (the object being to obviate the inconvenience of the different legatees joining with each other in receiving the dividends, the parties living remote from each other,) ........ 238 * LXXIX. Bill by legatees (some of them infants) entitled to one moiety of the resi- duary estate, and desirous of having the fund secured in court on account of the situation in life of the executors; — praying to have the trusts of the will carried into execution ; Also for an account of testator's real and personal estate, and to have the . clear residue ascertained, and one moiety secured for the benefit of the plaintiffs ;-^Pray- ing also for an account of what is due from one of the executors in respect of moneys of the testatrix received by him in her life-time; also for payment of a weekly annuity gi,ven by the will, and that the surplus income may be laid out to accumulate ; and for a receiver as to the rents of the freehold and leasehold estates, . . . 240 * LXXX. Bill by legatees against the testator's widow and executrix and devisee in trust under his will, (her co-executors and trustees having renounced and disclaimed the trust;) — Praying to have the trusts of the will carried into execution, and the ac- counts taken of testator's personal and real estates, and of his debts, legacies, &c. — The bill charging the defendant with having misapplied the testator's property, in continuing to carry on his trade and otherwise ; also prays for an account of what is due from her, for a receiver to collect in the outstanding personal estate, and to have the same sold and invested on the trusts of the will ; for an injunction to restrain the defendant from receiving the outstanding personal estate ; also to have her removed from acting as a trustee, and for a reference to a Master to appoint new trustees, . 246 LXXXI. Bill by a trustee under a will, and legatees entitled under several wills to portions of a sum of stock standing in the Accountant-General's name, produced by sale of an estate, two fourth parts of a moiety whereof had been limited to T. C. and A. his wife for their lives ; after their decease, one-fourth to the appointment of T. C, and the other fourth to the appointment of A. C. ; In default of appointment, to A.'s right heirs. T. C. was afterwards found a lunatic, and an act of parliament was ob- tained for sale of his estates ; he died without having exercised the power of appoint- ment; A. 0. also died, but having exercised the power reserved to her; — the prayer is to have the will of A. C. and the wills of several persons claiming under her, establish- ed, — a transfer made to the plaintiff the trustee, and his co-trustee a defendant, of cer- tain portions of the stock, and for a transfer of the remaining shares to the other plaintiffs ; there being a pretence alleged of a will made by the lunatic, the bill also prays that an issue may be directed to try the validity thereof, ..... 256 * LXXXII. Prayer to have a will established, and the trusts thereof carried into execution, offering an issue; and in case such will should be found not duly executed, (the testator having been of unsound mind for some time previously to his death,) then praying to have a former will established, — also for an account of testator's freehold, copyhold and leasehold estates, and personalty, debts, &o., and legacies, and of the XX CONTENTS. rents and personal estate received by defendants ; — Also for the appointment of new trustees in the room of those named inthe testator's will refusing to act; — Also for a receiver as to the outstanding personal estate, and the rents of the real and leasehold estates ; and for an injunction to restrain the defendants from receiving the same, or disposing of any part of the testator's property, . . . ■ . 260 * LXXXIII. Prayer of a bill to carry the trusts of a will into execution, and to have the rights of all parties in the testator's real and personal estates ascertained, an ac- count taken of the personal estate, debts, &c., and to have the clear residue ascertained and invested ; — an account taken of the real estates, and to have the rents secured during plaintiff's minority ; — Also that certain defendants may elect, and that if they should elect to confirm the wjll, that they may do all necessary acts for that purpose, and if they should claim against the will, then that the benefits given to them by the will may be secured for the plaintiff, or that he may be compensated thereout for what he may lose by such election ; and that a receiver may be appointed of the rents of the real estates, . . . . . • , • • • ^^^ LXXXIV. Allegation of debts due on bond and to the crown, ' . . . 262 * LXXXV. Interrogatories for an account of testator's real estates, the rental thereof, and incumbrances thereon — for an account of his personal estate, and the application thereof — for an account of debts and what remain due, and of books, accounts, &c. — ■ Prayer to have the trusts of the will performed, an account taken of the personal es- tate, and the annual produce Ihereof, and of the testator's debts, &c , — that the personal estate may be first supplied in payment of debts and legacies, and in case of a defici- ency, that the same may be paid out of the rents of the real estate, or by sale of a sufficient part thereof — that an account may be taken of the annuities given by the will, and the arrears paid out of the rents of, or in case of a deficiency, by sale of a sufficient part of the residuary real estates, and for payment of the annuities according to their priorities: — for a receiver as to the outstanding personal estate, and the rents of the real estate ; and for an injunction to restrain the acting executor also residuary legatee, and the surviving trustee of a term for raising the annuities, from collecting in the outstanding personal estate, and the rents of the real estates, . . . 263 LXXXVI. Statements and charges in a bill filed by executors for their indemnity, on account of the conflic|;ing claims of the legatees entitled to the residuary estate, and other persons also claiming to be entitled thereto, . . . . . 265 LXXXVII. Pretences and charges where the will is disputed by the heir at law, . 266 14. BILLS BY AND AGAINST LOKDS OF MANORS. LXXXVIII. Bill by the lord of the manor of S. against the lord of the adjoining manors — Praying to have the boundaries of the plaintiff's manor ascertained, and for a commission for that purpose; also for an injunction to restrain the defendant from cutting down trees or committing waste on the plaintiff's manor, . . . 2S1 LXXXIX. Bill by th'e lord of the manor of S. for an account and payment of the arrears df an ancient yearly rent of per acre called " cullyer rent," payable in respect of certain freehold lands within the manor.' — Charging that plaintiff is unable to distinguish those lands from others belonging to the defendant in respect whereof no such rent is payable; and that plaintiff is unable to proceed at law and distrain for the rent, ........... 269 * XC. Bill by the lord of a manor against two copyhold tenants coparceners, in possession of thirty-one copyhold tenements, charged with having thrown down the boundaries thereof, by which means the copyhold, lands had become intC-rmixed with their freehold estates. Prayer for a discovery and account of the quantity and value of coals, iron-stone and other minerals procured by them from their copyhold estates in conjunction with certain coal masters who are also made defendants, as claiming under a lease granted to them by the other defendants ; — Also for an injunction to re- strain the defendants from working the veins of coal lying in their copyhold estates, the plaintiff waiving all forfeitures. (The interrogatories are inserted,) . : 273 XOI. Bill by the tenants of several manors parcel of another manor against the lord and his steward to establish certain ancient customary rents and fines and other cus- toms ; the lord alleging that the fines are arbitrary, and that an award was made bind- ing upon the plaintiffs. — The bill prays that one or more issues at law may be directed in some indifferent county, that antecedent thereto the defendants may produce all decrees, deeds, &c., relating to the customs, that the plaintiffs may be quieted in the enjoyment of their estates, and for an injunction to restrain the lord of the manor from proceeding in the ejectments commenced against the plaintiffs, . . , 280 CONTENTS. XXI 16. BILLS BY NEXT OF KIN FOR ACCOUNT. XCVI. Bill by intestate's brother and sisters against his widow and administratrix for their distributive share of his estate, and for an injunction against her and the Bank of England to restrain the sale of a sum of stock standing in deceased's name, under a suggestion of her intention to leave the country, ..... 291 XCVII. Bill by one of deceased's children against his brother (to whom letters of administration had been granted,) for an account of intestate's estate and payment of plaintiff's share ; plaintiff disputing the application by the administrator of his share towards his maintenance and education during his minority, and specially charging that under the will of an aunt defendants were bound to maintain him, . . . 293 XCVIII. Bill by intestate's eldest son and heir at law, and his other children (in- fants) against his widow and her second husband, for an account of intestate's real and personal estate— --for the appointment of a guardian, and allowance of maintenance; for a receiver as to the rents of the real estate, and to have the title-deeds brought into court; and for an injunction against the administratrix and her husband, and the Bank of England to restrain the sale of certain sums of stock standing in deceased's name, 295 17. BILLS FOR A PARTITION. * XCIX. Bill by co-heiresses and their husbands for a partition of freehold estates, 298 C. Prayer for a partition ; that plaintiff's share may be conveyed to her in fee ; that the title-deeds may be brought into court, and that such of them as relate solely to the premises to be allotted to the plaintiff, may be delivered to her, together with posses- sion of the same premises, ........ 300 CI. Statement of the applications made to the defendants for a partition, and to de- posit the title-deeds in the hands of some indifferent person for the benefit of all par- ties ; — Prayer for a partition and conveyance of plaintiff's share to him in fee ; for an apportionment of the rents, and for a receiver in the mean time; and that the title- deeds may be brought into court and deposited with a Master ; that such of them as relate to any part or portion of the estate may be delivered to the party entitled thereto, and that the remainder may remain with the Master, . . . ... 301 18. BILLS RELATING TO PARTNERSHIP MATTERS. CII. Bill by one partner against another in the business of carpenters and builders for an account of partnership iransactions ; the defendant having entered into various speculations without the consent of the plaintiff, and charged the loss of such specu- lations to the firm. The defendant having also hindered the plaintiff from attending at the place of business, the plaintiff took other premises and carried on business in the partnership name; — The bill also prays for an injunction to restrain the defendant from receiving the partnership moneys, and for a receiver, and also for directions as to the future management of the business, ....... 302 cm. Bill by co-partners against the acting partner who had been arrested and im- prisoned for debt, for a dissolution as to him, and to have the usual accounts taken, and for an injunction to restrain him from collecting partnership debts, . . 305 CIV. Bill for a dissolution of a partnership between auctioneers, and for an injunction to restrain one of the defendants from collecting debts, ..... 30'? CV. Bill for an account of partnership dealings between solicitors after a dissolution, and for a receiver, and also for an injunction to restrain the defendant from receiving any of the partnership debts, ........ 309 CVI. Charging part in a bill for a settlement of partnership accounts between solici- tors • plaintiff impeaching an account which had been furnished by the defendant, lists of omissions and overcharges therein, annexed in schedules to the bill, . . 310 CVII. Prayer of a billfiled after a dissolution of partnership between ironmongers, the defendants having agreed to exonerate the plaintiffs from the payment of the debt; the plaintiffs pray that an account maybe taken of the debts due from the firm and re- maining unpaid, that the defendants may be declared answerable for the amount thereof and that the plaintiffs may be declared to have a lien for the same on the partnership stock and premises, and if necessary, for a sale thereof in satisfaction of such debts ; Also for an injunction to restrain the defendants from selling the partner- ship stock, &c. and that a covenant entered into by the plaintiffs restraining them from carrying on the trade within foirty miles, may be reformed according to the agreement of the parties, .......... 312 3 XXll CONTENTS. 19. BILL TO HAVE A PORTION FOR TOUNQER CHILDREN RAISED. CVIII. Bill to have a sum of money raised under the trusts of a term of years created by a will for raising portions for the younger children of testator's son the tenant for life, since dead; there being but one younger child Or daughter, the whole sum was settled upon her marriage in trust for the husband for life, and after his death for the children of the marriage. The bill is filed by the husband and wife and their children, against the trustees of the settlement to whom the term had been assigned, and the first tenant in tail of the estates charged (an infant,) praying to have an account taken of the principal and interest due in respect of the portion, and for payment of the amount by the tenant in tail, or in- default of payment, for a forclosure, or otherwise for a sale of premises comprised in the term, and for payments of the arrears of interest due to the husband under the settlement, ....... 313 20. BILLS FOR REDEMPTION. CIX. Bill by the heir at law of the mortgagors for redemption of freehold lands, . 311 ex. Bill by the devisee of an estate vAich had been mortgaged by the testator for a term of years, against his executor who was also his heir at law, and had taken an assignment from the mortgagee, and got into possession of the estate. The devisee being tenant in tail, a recovery was suffered by her and her husband and the estate limited to him in fee. The bill prays for an account of the principal and interest due on the mortgage, and of what is due from the defendant in respect of part of the mortgaged premises in his own occupation, and of other parts let to tenants, and that if the mort- gage was paid out of the testator's personal estate, that the amount of the moneys to be found due from the defendant may be paid to plaintiff; but if not, then praying for an account of the testator's personal estate, and that the amount to be found due from the defendant in respect of rent may be set off against the amount to be found due on the mortgage security, — that the personal estate may be applied in aid, bat if insufS- cient, that plaintiff may redeem, that defendant may assign the premises to plaintiff, and deliver up the title-deeds and also the possession of the premises, . . , 320 CXI. Bill by the customary heir of the mortgagor against the mortgagee for redemp- tion of copyhold premises, and for an account of the rents and profits received by the defendant, ........... 324 0X11. Bill to have goods re-delivered which had been deposited as a security for money lent, ... ....... 326 * CXIII. Prayer of a bill filed by a devisee of a moiety of an estate in the island of M. against the representatives of the mortgagees, for a redemption, account, and re- conveyance, with the interrogatory for a discovery as to the rents and profits received by the defendants, ......... 32'7 CXIV. Charging part in a bill for redemption filed against an assignee'of a mortgage security. Prayer for an account of the money paid by the defendant on the assignment being made to him, of the interest since accrued due, and of the rents and profits re- ceived by the defendant; but the amount of rents may be set off against what shall be found due in respect of principal money and interest, and the balance paid over to plaintiff, or if any thing should be found due to the defendant, then, that upon pay- ment to him he may re-convey and deliver up possession of the premises, together with the title-deeds, ......... 328 22. BILLS FOR THE APPOINTMENT OF NEW TRUSTEES. CXIX. Bill to remove trustees, one refusing to act, and the other a prisoner for debt, having applied part of the trusi moneys to his own use ;■ — Prayer for an account, and for an injunction to restrain them from any further interference ; — also for a reference to a Master to appoint new trustees, and for a receiver, .... 330 CXX. Bill for the appointment of a new trustee under a marriage settlement, in the room of one desirous to be discharged, there being no such power therein contained, 332 CXXI. Bill by a trustee for the removal of his co-trustee refusing to act under the trusts of a will, and for the appointment of a new trustee in his place, . . . 333 CXXII. Bill by a surviving trustee, praying to be discharged from the trusts of a will on the ground of obstruction by the husband of ceshii que trust, and for the ap- pointment of new trustees, and that plaintiff may be at liberty to retain his costs out of the trust moneys, or that he may be paid the same by th'e defendant the husband ; Praying also for an account of the rents improperly received by the husband, and for an CONTENTS. XXUl injunclion to restrain him from proceeding at law against the tenants, and from receiv- ing any further rents, and for a receiver in the meantime, .... 334 CXXIII. Introductory statements and charging part of a bill filed against the execu- tors of a deceased trustee and the survivingtrustees under a marriage settlement, for con- verting to their own use moneys produced by the sale of certain trust estates under an act of parliament, .......... 337 Prayer that the defendants may be declared responsible for the amount misapplied, and that the same when paid in may be invested on government securities ; that the surviving trustees may be discharged from the trusts, and new trustees appointed ; that the estates remaining unsold may he sold, and the produce applied according to the trusts of the act of parliament; and if necessary, that the usual accounts may be taken of the personal estate of the deceased trustee, ...... 337 CXXIT. Prayer of a bill filed against trustees under a settlement for selling part of the trust fund and converting it to their own use; praying that they may be removed, and be decreed to replace so much stocli as they have sold out ; also for an injunction against them and the Bank of England to restrain the transfer of the remainder of the stock standing in the trustees' names, and that new trustees may be appointed, and the divi- dends of the trust funds paid to the tenant for life, ..... 340 23. BILLS BY UNDERWRITERS IN RESPECT OP FRAUDS PRACTISED UPON THEM IN THE IN- SURANCE OF SHIPS. CXXV. Bill by underwriters for a fraud practised upon them in the representation of the voyage, the plaintiffs waiving any answer to any matters which might prove or . discover that the defendants carried on trade with the revolted colonies ; — Prayer for an injunction to restrain the defendants from proceeding at law, and for a commission to examine witnesses abroad, ........ 341 CXXVI. Part of a bill (comprising the stating and charging parts) filed by under- writers against a merchant resident abroad and his agents in England for frauds prac- tised by them in the insurance of two ships. (The merchant being in the habit of buying old worn-out ships, fitting them out, and insuring them at high prices.) De- fendants claiming as for a total loss, as to one ship, and for the amount insured upon the other ship in respect of repairs done to her, ..... 345 * CXXVIl. Prayer of a bill filed by underwriters to compel the production of books, accounts, &c. and for a commission to examine witnesses abroad ; and in case the ship was not sea-worthy, or was wilfully lost, that plaintiffs' names may be struck out of the policy ; — Or if they should be liable to the defendants, then that plaintiffs may have credit for the property saved, and for an account thereof; also for an injunction to res- train the defendants from prosecuting any actions against the plaintiffs, . . 349 24. BILLS TO RESTRAIN WASTE. CXXVIII. Bill by a landlord against his lessee for years who had ploughed up lands contrary to the terms of his lease, and had suffered the farm to continue out of repair. The bill prays that he may be compelled to reinstate the premises, and to keep them in good repair and condition, and to make satisfaction for the waste done (plaintiff waiv- ing all penalties incurred thereby ;) also for an injunction to restrain the defendant from ploughing up other lands, and from committing waste, . ' . . . 350 * CXXIX. Bill by tenants for life in remainder against a feme covert tenant for life in possession of the settled estates and her husband, for an injunction to restrain them from felling or barking trees or committing any waste ; the bill also prays that an account may be taken of the moneys produced by the sale of trees already felled, and for pay- ment of the amount into the bank : that the trees already barked may be felled, and the produce thereof paid into the bank; that the whole moneys so to be paid in may be laid out in the purchase of lands to be settled to the like useS as the settled estates: that in default of payment of the moneys to be found due from the defendants, that the same may be satisfied out of the rents of the settled estates, and that for such pur- ■ pose a receiver may be appointed, ....... 353 FOR BILLS TO CARET THE TRUSTS OF WILLS INTO EXECUTION, SEE PAQES, 213, 221, XXIV CONTENTS. CHAPTER III. ORIGINAL BILLS NOT PRATING BELIEF. SECT. I. BILLS TO PERPETUATE THE TESTIMONY OF WITNESSES. CXXX. Bill by a devisee in fee in possession to perpetuate the testimony of the wit- nesses to the testator's will, ......•• 362 * CXXXI. Bill by a devisee tenant for life and the devisees in remainder to perpetuate the testimony of witnesses to the will, .....■• 363 * CXXXII. Bill by a devisee tenant for life and his eldest son tenant in tail in re- mainder, to perpetuate the testimony of witnesses to the identity of the tenant for life, as being the person described in the testator's will, and thereby directed to take the testator's surname, ......... 366 CXXXIII. Bill by a tenant in tail in remainder to perpetuate the testimony of wit- nesses as to the marriage of his parents and his birth, ..... 368 CXXX IT. Bill to perpetuate the testimony of witnesses to the boundary of a moor, parcel of the plaintiff's manor, ........ 370 CXXXV.- Introductory statement and prayer for a commission to examine witnesses abroad, . . . . . . . , . . . 312 SECT. II. BILLS FOB DISCOVERT. CXXXTI. Bill for discovery in aid of an action at law ; the defendant having pleaded a set-off, and Inserted items in the particular of such set-off which ought not to have been charged against the plaintiffs, being trustees under a deed of trust executed by two partners in trade for the benefit of their creditors, ..... 3T5 * CXXXVII. Bill for discovery in aid of a defence to an action brought for the re- covery of a balance of an account, claimed by the plaintiff at law to be due to him as agent in having assisted the plaintiffs in equity, who were the solicitors employed in prosecuting an election petition in parliament; the bill also prays for an injunction to restrain proceedings at law in the meantime, ...... 311 * CXXXVJII. Bill for discovery in aid of a defence to an action brought by the de- fendant in equity for the recovery of the value of a shipment of dollars alleged to have been made by him on board the shipof which the plaintiff was the commander; (the signature of the plaintiff's name to the bills of lading having been forged;) — The bill also prays for an injunction to restrain all proceedings in the action, and all other pro- ceedings at law, and for a commission to examine witnesses abroad. (The interroga- tories are inserted,) ......... 381 *CXXXIX. Bill for discovery and production of indentures of lease and release and settlement, in aid of an ejectment brought for the recovery of a moiety of the settled estates, . . . . . . . . . . . 391 CXL. Bill in the Lord Mayor's Court, London, by the defendant in the action there, for a discovery in aid of his defence to the action, he having pleaded to the jurisdiction. (The interrogatories are inserted,) ....... 394 CXLl. Bill in the Lord Mayor's Court, London, for a discovery of property in the hands of the garnishees, in aid of an attachment, . . , . . . 391 CHAPTER IT. BILLS NOT ORIGINAL. SECT. I. SUPPLEMENTAL BILLS. *CXLII. Supplemental bill by residuary legatees under a will after answers put in to the original bill, — one of the defendants, a residuary legatee, having since assigned CONTENTS. XXY his share by way of mortgage, and taken the benefit of the insolvent acts, the assignees under those acts and the personal representative of the mortgagee deceased are made parties. The original bill had stated that the testator's will had been proved, but such was not the fact, and two of the executors are also made parties defendants to the sup- plemental bill, (the other executor being one of the plaintiffs,) . . . .403 CXLIII. Supplemental bill against the assignee of a bankrupt defendant, . . 406 CXLIV. Supplemental bill to an original bill filed by a purchaser for specific per- formance of a contract, stating that after publication passed, it was discovered that part of the property included in the particular of sale, and described as in the occupation of a tenant, was his own fee-simple, and praying that compensation may be allowed for the loss of such part, and for a reference to the Master accordingly, . . . 406 CXLV. Supplemental bill to an original and amended bill, filed by a lessee for the specific performance of an agreement to grant a further lease, stating that the defend- ant has brought an ejectment against the plaintifif, and praying an injunction to restrain his proceeding at law, ......... 408 ' CXLVl. Supplemental bill on the birth of the first tenant in tail, . . . 409 * CXLVII. Supplemental bill on the birth of a daughter'entitled as tenant in common in tail with another daughter of a defendant, ...... 410 * CXLVIir. Supplemental bill by a surviving trustee, making a new trustee a defend- ant, who had been appointed in the room of a co-plaiutiflf deceased, the object of the suit being to obtain possession of the title-deeds which had been surreptitiously obtained by one of the defendants to the original and amended bill, . , . .411 SECT. II. BILLS OF REVIVOR. CXLIX. Bill of revivor (before decree) by the administrator of the plaintiff in the original suit, the executors named in his will having renounced probate, . . 415 CL. Bill of revivor upon the marriage of the female plaintiff, . . .416 CLI. Bill of revivor in a suit of tithes, jigainst the personal representatives of one of the defendants who had died before putting in his answer to the original bill, . . 417 * CLJI. Bill of revivor by trustees and executors, against the customary heir of one of the original defendants, who was the customary heir of the testator, and had died without having answered the original bill, the object of the suit being to carry the trusts of the will into execution, ........ 419 * CLIII. Bill of revivor by the executor of the plaintiff in a cross bill against the de- fendants thereto, two of them not having answered, ..... 420 CUV. Bill of revivor (after a decree) against the surviving executor of one of the defendants since deceased, ........ 422 CLV. Bill of revivor (after a decree and proceedings had before the Master) against the heir at law of the mortgagor, the original defendant deceased. A bill of revivor having been formerly exhibited against the original defendant by the plaintiffs, as the executors of the plaintiff in the original bill, the mortgagee deceased, . . .42 4 SECT. III. BILLS or REVIVOR AND SUPPLEMENT. * CLVI. Bill of revivor and supplement against the administrator of the defendant to the original bill, which was filed for discovery in aid of a defence to an action, and for a commission to examine witnesses abroad ; the defendant having died abroad with- out having put in his answerr An injunction had issued to restrain proceedings at law. (The interrogatories are inserted,) . . . . . . 426 * CLVII. Bill of revivor and supplement by the executors of the deceased plaintiff in the original bill, against the administratrix and heiress at law of the deceased defend- ant, against whom the original bill had been exhibited for a foreclosure of a mortgage of freehold and leasehold property, . . .... 431 * CLVIII. Bill of revivor and supplement against the executors of the .defendant to the original bill who had died after publication passed, but before the hearing of the cause, (The interrogatories are inserted,) ...... 433 * CLIX. Bill of revivor and supplement (after a decree) by one of the defendants to the original bill, and the widow and heir at law of the other defendant since deceased, against the executrix of one of the plaintiffs in the original bill since deceased, and the XXVI CONTENTS. assignees of the other plaintiff who had become bankrupt, and also against the bank- rupt, (the plaintiffs in the original bill being executors and trustees under a will had been examined upon interrogatories ;) — praying to have the accounts directed by the decree carried on, an account taken of the testator's personal estate and of the rents of his real estate possessed by the deceased executor since his examination, or by the executrix of such executor since his death, and that she may admit assets suEBcient to answer the same, or that the usual accounts may be taken of his personal estate ; also to hare an account taken of the testator's personal estate and of the rents of his real estate possessed by the bankrupt since his examination, and that the amount may be proved under the commission issued against him, and that his assignees may also ac- count for so much thereof as they may have received, . . . ». . 435 CLX. Bill of revivor and supplement by all the original plaintiffs except one since deceased, against his heir at law and executor who was a defendant to the original bill and had become bankrupt, and also against the surviving assignee under the commis- sion of bankrupt issued against him, ....... 439 CLXI. Bill of revivor and supplement (after a decree) against the executors of a de- ceased defendant, who was one of the executors and trustees under the original testa- tor's will, and also a receiver appointed in the cause, — praying to have the accounts directed by the decree prosecuted, receivers appointed as to real estate and outstand- ing personalty; that the clear residue of the original testator's estate may be ascer- tained, and one moiety secured for the benefit of the plaintiff during his minority ; also to have an account taken of the moneys invested by the deceased executor in trust for the plaintiff, and of the rents of the plaintiff's estates received by the deceased, and that the same may be paid out of his assets, or that the usual accounts may be taken thereof, ........... 440 CHAPTER V. BILLS IN THE NATURE OF OKIGINAL BILLS. * CLXII. Bill of revivor and supplemental bill in nature of a review to reverse a decree made for establishing a will, devising lands for the purpose of founding a col- lege, praying also for an injunction to restrain the heir at law of the testator from ap- plying to the crown for a charter and license, ...... 446 CLXIII. Supplemental bill filed by infants by their next friend, against the plaintiffs and defendants in the original bill, praying to have the accounts directed by the decree ■ made in the original cause prosecuted ; the infants having been born since the decree was pronounced, and being entitled under the will of their grandfather, in the event of their attaining twenty-one, to a share of his real and personal estate in reversion expectant upon the decease of their mother; the supplemental bill charging the execu- tors and trustees with neglect in not having duly invested the trust moneys according to the will. (The interrogatories are inserted,) • . . . . 449 CLXIV. Bill in the nature of a supplemental bill, against the executor of one of the defendants to the original bill, who had died abroad without having put in his answer he being entitled to a legacy under his father's will in case he claimed the same within seven years, the payment whereof had been restrained by an injunction obtained by the plaintiff in the original bill; the prayer of the supplemental bill is, that the legacy with its accumulations may be declared to be part of the deceased's personal estate and may be applied in payment of the debts due to the plaintiff and his other creditors' 453 CHAPTER VI. INFORMATIONS. CLXV. Information for a discovery and account of the timber and other trees and underwood cut down by the direction of the defendant in the King's forest in the county of S., and of the loppings, &c. taken by the defendant on the falls of timber directed for the use of the navy; the defendant claiming to be entitled thereto as keeper of the forest, under a grant from the Crown ; an injunction is also prayed to restrain him from cutting down any more trees, &c., ... . . . _ 45PJ CLXVI. Information to restrain the making a carriage road and breaking up a pub- lic foot-path Ifi order to prevent certain streets from being made thoroughfares for carriages contrary to the intention of an act of parliament, • . . . 461 CONTENTS. XXVll CLXVII. Information to restrain the obstruction and breaking up a public road and highway for the purpose of making vaults in front of certain houses to be erected on ground fronting the road. The defendants claiming an authority under commissioners appointed by certain acts of parliament, . . . . . . . 463 CLXVIII. Information for the purpose of carrying the trusts of a will into execution (which was made before the 9th Geo. 2, cap. 36,) whereby lands were devised for the purpose of building a new college in the town and university of C. and supporting and endowing the same, ^ . . . . . . . . . 465 * CLXIX. Information praying the direction of the court as to the application of the surplus rents of an estate devised unto trustees in favor of a college for the benefit of two members thereof; the surplus rents being by the will directed to be laid out in the purchase of advowsons, and the college having thereout purchased asmany advow- sons as they were capable of holding, ....... 469 CLXX. Information at the relation of certain freeholders and inhabitants of a parish forming a society called "The Twenty-four," by whom the affairs of the parish were managed, to establish a bequest of stock for the poor of a certain district within the same parish, praying also to have the stock transferred into the Accountant-General's name, ........... 472 CLXXI. Prayer of an information filed for the purpose of establishing a charity, and the right of certain persons to nominate the objects thereof, and also for the appoint- ment of new trustees, and pipying that the defendants may convey a rent-charge to the new trustees, and deliver up all deeds and writings, ..... 475 * CLXXII. Prayer of an information and bill to establish the bequest of a moiety of a testator's residuary personal estate for the benefit of a charity; and in order thereto, to have an account taken of the testator's persopal estate, debts, &c. and the clear resi- duary estate ascertained, and that one moiety thereof may be invested in the funds, and the dividends thereof paid to the relators and plaintiffs to be distributed and ap- plied by them for the benefit of the objects of Ihe charity, .... 476 * CLXXIII. Statement in and prayer of an information and bill filed against the Skinners' Company for an account of the charity estates vested in them for the support of the free grammar school at Tonbridge; praying that it may be declared that the in- creased rents ought to be applied for the support of the school, and that the company may account for the same accordingly, and for a reference to the Master to apportion the rents amongst the different parties entitled under the testator's will, and to settle a scheme for the application of the rents of the estates, and the revenues of the school. The clerk of the company being made a defendant for the purposes of discovery, . 477 * CLXXIV. Information and bill (in the natureof a bill of peace) to restrain the in- habitants of a certain district from buying or bringing therein for the purpose of sale or consuming in their own houses or using any corn, grain, flour, malt or meal which had not been ground at the relators' mills, which were ancient mills originally parcel of the possessions of the Duchy of Lancaster ; praying also for an account of all the corn, &c. used by the defendants in their houses, which according to the custom ought to have been ground at the relators' mills, and to have a value set thereon ; — contain- ing statements of informations filed by former proprietors of the mills against the in- habitants of the district, the establishment of the custom on the trial of issues directed by the court, and the decrees made in the causes. (The interrogatories are inserted,) 479 CHAPTER VII. PETITIONS. * I. Petition by an infant for the appointment of a guardian and allowance of main- tenance, ........... 502 * II. Petition by an infant who had married, all his guardians appointed under the will of his father having died, except one who refused to act ; pra3-ing for a reference to a Master to appoint another guardian, and to consider as to the propriety of a part of the principal of the infant's fortune being applied for the purpose of establishing him in business, and also as to the proportion of the income of his fortune to be allowed him during his minority. The will contained a clause authorizing the trustees and guar- dians to apply one-fourth of the principal of the infant's fortune for his advancement, under which power a premium had been paid on the infant's being apprenticed, . 503 * III. Petition by an infant, praying that the Master's report made pursuant to an order upon a former petition by the infant may be confirmed, approving of a guardian for the infant, allowing a sum to be raised for establishing the infant in business, and the whole interest of his fortune for his maintenance from the death of his mother; the XXVIU CONTENTS. petition also prays for a reference to the Master to tax the costs of the petitioner, and all other persons concerned, and to have the same raised and paid, . . . 507 * IV. Prayer of a petition by the guardians of infants for an increase of the sum allowed for their maintenance and education, ...... 509 V. Petition praying to have certain shares of stock transferred to three of the peti- tioners, they having attained their respective ages of twenty-one years, and that the share of another petitioner who had attained twenty-one, and had married, may be transferred to her husband, together with the dividends to accrue due previously to such transfers; also that the father of the other petitioners, infants, may be allowed the di- vidends to become due on their shares, he being unable to maintain them. (An opinion as to the necessary affidavits is added,) ....... 510 *VI. Petition praying a transfer and payment of certain sums which had been car- ried over to the separate account of a married woman, and also of all further sums to become payable to her ; she and her husband being resident abroad, a commission is prayed to take her consent to the prayer of the petition. The wife being entitled under the will of her father to one-seventh share of the produce of certain estates sold under the decree of the cojirt, her husband assigned the same to W. T. upon trust to pay a debt of £3000 ; W. T. afterwards assigned over the debt and security to the petitioner R. 0. for securing a larger debt due from himself, and subsequently became bankrupt; upon a' reference to arbitration directed by the court, the arbitrator ' declared R. 0. to be a mortgagee, and that he should be considered the purchaser of the security assigned at the sum fixed by the award to be the value thereof, for the purpose of ascertaining the amount of debt in respect of which he was to tender his proof under the commis- sion of bankrupt against W. T., . . . . . . . . 514 VII. Petition by creditors for leave to come in and prove their debts before the Mas- ter after the time limited by the court had expired, and the Master's report confirmed. (An opinion as to the necessary affidavits is added,) . . ... . 521 VIII. Petition bj' a married woman for a writ of ne exeat regno to prevent her husband from going abroad until he has settled alimony on her, and paid the costs incurred by the petitioner on appeal from the Consistory Court to the High Court of Delegates, a monition having been granted and served to compel payment thereof, . . . 522 * IX. Part of a petition by the plaintiffs in a cause, praying for a writ of ne exeat regno against the defendant in respect of a debt arisen on mercantile transactions, . 524 * X. Petition by a purchaser praying (in the alternative) for a reference to the Master to tax the costs incurred by the petitioner in various proceedings and applications made to the court, in consequence of the great delay which had taken place in the investi- gation of the title and procuring the incumbrancers and other parties to execute the conveyances ; Or for a reference to inquire whether the vendors (who were trustees for sale had shown a good title, or were able to execute a good conveyance of the estates free from incumbrances previously to the petitioner filing his bill, or when else ; and that the Master may allow the petitioner a proportionate part of the costs incurred by him; Praying also for a reference to the Master to take an account of the dilapidations on the estates, and deterioration in value of the lands by neglect of management pre- viously to the petitioner taking possession, and that the amount to be allowed for costs, &c. may be repaid to the petitioner out of his purchase money which had been paid into court, and invested in 3Z. per cent, annuities; and that the title-deeds de- posited with the Master may be delivered out to the petitioner, . . . 525 * XI. Petition to have a cause heard on the equity reserved by the decree made at the hearing, a case having been directed for the opinion of the Judges of the Court of King's Bench, .......... 534 * XII. Prayer of a petition by a defendant to set down a cause for further directions, after a verdict obtained on the trial of an issue directed by a decree, . . . 535 * XIII. Prayer of eC petition to vary minutes as to an issue at law, . . . ib. * XtV. Petition to examine an aged witness de bene esse, before issue joined, . ib. * XV. Petition by the vendors of certain copyhold land sold to the undertakers of a navigation, praying to have the original and cross causes reheard before the Vice-Chan- cellor, on the ground that the trustees being four of the plaintiffs in the original bill, to whom the petitioners were by the decree directed to surrender the land sold had died, and that no sufficient directions were given by the decree as to whom in that event the surrender was to be made, and also because no inquiry was directed whether a certain deed of covenants entered into by the undertakers of the navigation, was sufficient to insure the performance of certain conditions on their part, and that no di- rections were given for a proper deed of covenants to be executed by them in case the other should be found not to be effectual. (The cross cause was at the hearing dismissed with costs,) .......... 636 * XVI. Petition of appeal from a decree by the Master of the Rolls, directing an an- nuity to be set aside, ......... 543 CONTENTS. XXIX XVII. Part of a petition of appeal from a decree by the Master of the Rolls, dismiss- ing the plaintiff's bill, ......... 547 * XVIII. Petition of appeal from a decree made by the Vice-Chancellor, directing the defendants to execute an assignment of the premises in question to the plaintiff and to deliver up the lease thereof to him, and also ordering that the injunction which had been granted in the cause to restrain proceedings in ejectment, should be continued, and that the defendants should pay the plaintiff his costs, ..... 548 CHAPTER VIII. AFFIDAVITS. * I. Affidavit of the plaintiff in the cause as to the loss of certain writings, . . 556 * II. AflSdavit of the plaintiff as to a witness being old and infirm, in order to his examination de betie esse, . . . . . . . . . ib. * III. AfBdavit by an attesting witness of the due execution of certain indentures of lease and release, .......... 557 * IV. Affidavit by the attesting witness as to the execution of certain purchase-deeds by the defendant (previously to her marriage;) by an order made upon petition, upon such execution being verified by affidavit she was declared entitled to have a transfer made to her of a sum of stock standing in the Accountant-General's name, . . 558 * V. Affidavit by an attesting witness as to the execution of a settlement by one of the defendants, who had previously obtained an order for transfer to herself of a sum of stocli stjinding in the Accountant-General's name upon the execution by her of cer- tain purchase-deeds being verified by affidavit ; before such transfer was made, her marriage was solemnised, and by a settlement made previously thereto the amount of stock was assigned to trustees, who then petitioned (the husband and wife also join- ing) to have the transfer made to them upon the trust of the settlement, . . 559 * VI. Affidavit by the husband and wife (two of the plaintiffs in a cause) that no settlement or agreement for a settlement was ever entered into with regard to her share of an intestate's personal estate, ....... 561 VII. Affirmation of a surveyor, a quaker, as to the repairs requisite to certain build- ings, and the propriety of an agreement foranew lease thereof, being an infant's estate, 562 VIH. Affidavit that an agreement entered- into for a new lease is for the benefit of the infant's estate, . . . . . . . . . ib. CHAPTER IX. ANSWERS. Sect. I. Foems of titles, ........ 563 II. The commencement, ........ 565 III. Common forms used in framing answers, ..... 566 IV. The conclusion, ........ 569 SECT. V. forms of answers. * I. Usual answer of an Attorney-General, ...... 571 II. Answer of the Attorney-General where the plaintiff was alleged to be illegitimate, 572 III. The answer of the Attorney-General where a testator died without leaving an heir at law, .......... 572 IV. Answer of the Attorney- General insisting on a title by escheat in the Crown, in case a testator died without leaving an heir at law, and without having made a will valid to pass real estate, ......... 573 * V. Answer of the trustees and executors under the will of a testator who had con- tracted for the purchase of an estate, to a bill for specific performance; the defendants insisting that the original agreement had been abandoned on account of the defects of title, and the delay which had taken place, and also of the deterioration in the value of the estate; but also insisting (in case the opinion of the court should be against them,) upon the benefit of a subsequent agreeement'for an abatement in price according to the terms expressed in a letter written by the purchaser, .... 573 XXX CONTENTS. * VI. Answer of one of three trustees for sale, defendants to a bill by a purchaser seeking to set aside the contract, the defendant insisting that although the incum- brancers on the estate are numerous, and that a recovery which had been previously suffered was in dispute in another suit, yet that the defendants are able to procure a good conveyance to be executed to the plaintiff, and that he ought to be compelled to complete his contract, ......... 581 VII. Answer of a truste,e under a nuncupative will, who had taken out letters of administration to the testator with his will annexed, submitting to account and claim- ing allowances for sums expended in educating and apprenticing the plaintiff, . 584 VIII. Answer of an executor and trustee under a will to a bill for an account filed by a legatee ; the executor being also heir at law to the testator, and claiming as such to be entitled to freehold estates purchased by the testator after making his will and a codicil, and denying any republication thereof. The defendant having misapplied part of the produce of the real and personal estate, submits to account for the value of the government securities in which the same might have been invested (referring to sche- dules annexed,) .......... 585 IX. Answer of an executrix submitting to act under the indemnity of the court, . 588 * X. Answer of an executor and of the husband of the plaintiff to a bill for payment of a legacy, — the executor admitting assets, and the husband claiming to be entitled to receive the legacy, ......... 589 * XI. Answer of the executors of a deceased acting executor, to a bill of revivor, the defendants not admitting assets, not knowing what was due from their testator to the original testator, but submitting to account, ..... 590 XII. Answer of an executor of a deceased executor of a bill of revivor and supple- ment ; the defendant admitting assets, ....... 591 * XIII. Answer of an infant heiress to a bill by simple-contract creditors against the executors and trustees under the will of her father, who had died greatly indebted, possessed of real and personal estate, ....... 592 XIV. Answer of a widow electing to take the bequests made to her by a will, and to release all interest in the devised estates, ...... 594 * XV. Form of an answer by aduit and infant defendants claiming as next of kin to the deceased wife of the plaintiff, who by his bill sought to set aside a secret settlement made by his late wife before her marriage, ...... 595 *■ XVI. Part of an answer of the widow and executrix of a deceased surviving exe- cutor ; the plaintiff claiming either as administratrix or in her own right to be entitled to the share of a residuary legatee who was supposed to have attained twenty-one and to have died abroad intestate, — the answer stating a release executed by the plaintiff and her hite husband to the defendant's late husband as surviving trustee and executor, and claiming the same benefit therefrom as if pleaded, . . . '. . 596 * XVII. Statement in an answer of the statute of frauds, and claiming the same benefit therefrom as if pleaded, ........ 597 XVIII. Answer of the lord of a manor who had seised certain copyhold premises for want of a tenant, after the death of a former tenant, ..... 598 XIX. Answer of the mortgagor to a bill of foreclosure, .... 599' * XX. Answer of the executors of the first mortgagee to a bill of foreclosure filed by the assignee of the second mortgagee (who had obtained possession of the title-deeds and claimed a priority over the first mortgagee) against the infant heir of the mort- gagor, and also against a subsequent mortgagee, . . . . . 600 XXV. Further answer after exceptions taken and allowed to the defendant's former answer to a bill for an account, and to restrain the infringment of a copyright, . 618 XXVI. Answer of a trustee submitting to act as the court shall direct, . . ib. XXVII. Conclusion of an answer insisting that plaintiff's remedy is at law and not in equity, and claiming the same benefit as if the defendant had demurred to the bill, . 619 ANSWERS AND DISCLAIMERS. * XXVIII. Answer and disclaimer by the personal representatives of a mortgagee relinquishing the security of the premises comprised in the plaintiff's mortgage, . 619 XXIX. Answer and disclaimer, denying having ever claimed any right or interest in the premises in the bill mentioned, ....... 620 XXX. Answer and disclaimer of a trustee under a will, denying having ever inter- fered in the trust or received the rents of the trust estates, . . . . ib. CONTENTS. XXXI CHAPTER 2. DEMDBBEES. * I. A general demurrer for want of equity (where there is only one defendant,) . 623 II. A general demurrer for want of equity (where there are several defendants,) . 624 * III. Demurrer to so much of a bill as sought a discovery of title deeds, for want of an affidavit being annexed to the bill that the same were not in the plaintiff's cus- tody or power, .......... 625 IV. Demurrer to a bill of interpleader for want of the usual affidavit that the plaintiff does not collude with any of the defendants, ...... 626 * V. Demurrer to a bill of interpleader for want of the necessary affidavit, and also for want of equity, ■. . . . . . . . . ib. * VI. Demurrer to a bill for the examination of witnesses de bme esse; the bill not alleging that an action has been commenced, or that there is any impediment to an action being brought, and an affidavit not being annexed to the bill, . . . 627 * VII. Demurrer for multifariousness, ... . . ib. * VIII. Part of a demurrer for multifariousness to a bill against several purchasers of parts of an estate, ......... 628 IX. Demurrer for want of equity, and also for multifariousness to a bill for dis- covery and for a commission to examine witnesses abroad in relatiou'o two actions at law commenced against the plaintiff in equity, . . . . . . ib. * X. Demurrer for want of parties to a bill by a creditor of a testator who had died abroad, ........... 629 XI. Demurrer for want of parties, . . . . . . . ib. XII. Demurrer to so much of a bill as sought a discovery of waste oommitted'by the defendant, the plaintiff not having waived by his bill all penalties and forfeitures, . 630 XIII. Demurrer to so much of a bill as sought a discovery which might subject the defendants to a charge of compounding a felony, accompanied by an answer to the other parts of the bill, . . . . . . . . . ib. XIV. Demurrer on the ground that the plaintiff does not appear by the bill to have proved the will of his testator, . . . . . . . . 631 * XV. Demurrer on the ground that the plaintiff had not proved his testator's will in the proper Ecclesiastical Court, ....... 632 XVI. Demurrer by the wife and committee of the person of a lunatic, to so much of a bill as sought to perpetuate the testimony of witnesses to the alleged will of the lunatic, accompanied by her answer to the other parts of the bill, . . . . ib. * XVII. Demurrer as to so much of the discovery and relief sought by the bill with respect to certain parts of the premises therein mentioned, that the plaintiff's remedy is at law; and with respect to other part of the premises that he has shown no title thereto ; aniplea in bar as to so much of the bill as sought to set aside the conveyance of other part of the premises, of the indentures of conveyance by lease and release for a valuable consideration, supported by an answer denying fraud or any undue influence having been used, ......... 633 XVIII. Demurrer by husband and wife to so much of the bill as sought to set aside a testator's will, or to restrain proceedings at law, that it appeared by the bill that the husband proved the will in thePrerogative Court, that such Court has exclusive jurisdic- tion, and that no equity is shown to stay the proceedings at law ; — Plea by the husband as to so much as sought a distribution of the testator's personal estate, that he made a will bequeathing his residuary estate to the husband, and appointed him executor, and that he has proved the will; — Answerhj both defendants to the residue of the bill, 636 * XIX. Demurrer to an ainended bill, the plaintiff's title to redeem having been ob- tained after the filing of the original bill and the answer to it, . . . . 63T * XX. Demurrer for want of equity to a supplemental bill, .... 638 * XXI. Demurrer to a bill of review and supplemental bill, on the ground that there are no errors in the decree, and that the leave of the court was not first obtained, . ib. CHAPTER XI. PLEAS. I. Plea of an alien enemy, ........ 640 II. Plea that the defendant is not the deceased's personal representative as alleged in the bill, .......... 641 * III. Plea to a bill by assignees of a bankrupt, that the same was filed without the consent of the creditors, . . . . . . . . . ib. IV. Plea of bankruptcy of the plaintiff, ...... 642 V. Plea by bankrupts of their certificate to the whole of the plaintiff's bill (brought in respect of the demand arisen previously to their bankruptcy,) excepting only as to XXXll CONTENTS. the allegation in the bill that the bankrupts claimed an interest in the matters in'ques- tion, which by answer and disclaimer accompanying the plea they disclaimed, setting forth a release executed to their assignees of all right and interest in their surplus estate, 643 * VI. Plea of a fine and non-claim to a b^l for an account and for a discovery of the defendant's title, accompanied by an answer to part of the bill, . _ . . 645 * VII. Plea by an heir at law that he had no lands by descent, accompanied by an answer admitting that he is heir at law, . . . . . ■ _ • ^47 * VIII. Plea to an ejectment bill, negativing the averment in the bill as to there being outstanding leases, . . . . . . . • ■ ^'^S * IX. Plea by several defendants that the plaintiffs are not next of kin, and averring that one of the defendants only sustains that character, . . . . ib. * X. Plea of two outlawries, with the certificates thereof annexed, . . • 649 XI. Plea of the statute of frauds to a bill for specific performance of a parol agree- ment ; accompanied by an answer to the matters stated in the bill tending to show a part performance; — (with a note of the Lord Chancellor's decision on overruling the plea,) 65L XII. Plea of the statute of frauds in bar to so much of a bill as sought to compel the specific performance of a parol agreement for a lease, .... 654 XIII. Plea of the statute of limitations to a bill by an administratrix for account, . 655 * XIV. Plea of the statute of limitations to so much of a bill as sought a discovery of title-deeds and of^he defendant's title to the estates in question, supported by aver- ments showing an uninterrupted possession for sixty years and upwards in the defend- ant and the party through whom he claimed, accompanied by an answer to so much of the bill as required a discovery of the time when the party through whom the plaintiff claimed was seised of the estate, ....... 656 * XV. Plea of a former suit depending for the same matters in bar to a bill for ac- count, ........... 658 * XVI. Plea of another will in bar to a bill by a devisee for redemption, . . 659 CHAPTER XII. REPLICATIONS. * * I. A general replication to a defendant's answer, ..... 660 * II. A special replication to the answers of- several defendants, . . . ib. CHAPTER XIII. EXAMINATIONS. * I. Form of an examination of a defendant in the Master'8 ofi&ee upon interrogatories settled by a Master pursuant to a decree, ...... 662 * II. Examination of executors in the Master's ofSce, (referring to schedules annexed,) 663 * HI. Examination of femes covert entitled to shares of money in a cause, with the certificate of the commissioners and affidavit of the attesting witness, . . . 666 IV. Examination of a feme covert upon a commission as to her execution of a deed of settlement (under the 39th and 40th Geo. 3, c. 56,) of moneys to which she was en- titled, subject to be laid out in lands in tail, with the certificate of the commissioners and afiBdavit of the attesting witness, . . . . ... . 669 * V. Examination of a person claiming an interest in the premises in the pleadings mentioned, who had petitioned to be examined upon an interrogatory pro interesse suo, 6'70 CHAPTER XIV. EXCEPTIONS. SECT. I. EXCEPTIONS TO ANSWERS. * I. An exception to the answer of several defendants, .... 672 * II. An exception taken to the answer of a defendant to an amended bill, . . 6'73 * III. Several exceptions taken to a defendant's answer, .... 674 SECT. 11. EXCEPTIONS TO REPORTS. * I. Exceptions to a Master's report relating to copartnership accounts, . , . 676 CONTENTS. XXXlll * II. Exceptions to a Master's general report, taken on the ground of the allowances made to the defendant an executor, in account subjoined to the report by way of sche- dule, ........... en • * III. Exceptions to a Master's report in fayor of a title depending on the validity of a recovery, .......... eM * IV". General exception to a Master's certificate of insufficiency under an order of re- ference to look into the plaintiff's bill and the defendant's answer and the exceptions taken thereto, and to certifj whether the answer be sufficient in the points excepted to or not, (the defendant not submitting to answer the exceptions,) . . . 680 * V. Exceptions to a Master's report of insufficiency aftera second answer put in by the defendant, . . . . . . . . . . 682 * VI. Exceptions to a Master's Certificate of insufficiency, under an order of refer- ence to certify whether an examination of a creditor going in under the decree in a creditor's suit, to interrogatories settled by the Master, is sufficient or not, . . 683 CHAPTER XV. INTEEHoijATOBIES. SECT. I. FORMS OP TITLES AND OF THE FIRST AND LAST GENEBAL INTERROGATORIES, . . 685 SECT. II. FORMS OF INTERROGATORIES FOR THE EXAMINATION OF WITNESSES IN CHIEF, . . 688 SECT. III. FORMS OF INTERROGATORIES FOR THE EXAMINATION OP PARTIES, AND ALSO FOB THE EXAMI- NATION OF CREDITORS AND THEIR WITNESSES, AND OTHERS, UNDEE DECREES AND DECRE- TAL ORDERS, .......... '758 SECT. IV. FORMS OF INTERROGATORIES FOR THE CROSS-EXAMINATION OP WITNESSES, . . 786 Interrogatories to the competency of witnesses, exhibited to them on their cross-ex- amination, ... ....... T92 Interrogatories for the examination of a witness on the voir dire as to his being in- terested, ........... 793 Articles to discredit witnesses, i ..... . 794 CHAPTER XVI. FORMS OP ORDERS. I. Order to amend an answer, ........ 796 II. Order that bonds of submission to arbitration be made an order of court, . ib. III. Order directing that an agreement be made an order of court, , . . 797 * IV. Order for payment of the plaintiff's costs, part to the executors of his deceased solicitor, and other part to his present solicitor; the deceased solicitor before his death obtained an order for taxation, but died before the same was completed, . . ib. V. Order for a sheriff's officer to attend with a suitor whom he had arrested on his returning from Court, . . . . . . . . . 798 VI. Order for the discharge of a suitor who had been arrested on leaving the Court, 799 VII. Order that the plaintiff may make his election to proceed at law or in equity, . ib. VIII. Order for the separate examination of femes covert as to the application of a sum of money, .......... 800 IX. Order that a defendant, a foreigner residing abroad, may answer in his own lan- guage, and directing that the answer be translated by a notary public into English, . 800 X. Order directing that certain exhibits proved on a commission abroad, be delivered to a notary public to be translated, and that his translation thereof may be read at the hearing of the cause, . . . • . . . . . ib. XI. Order appointing an interpreter upon the examination of a foreigner as a witness, 801 XXXIV CONTENTS. XII. Order for an injunction enjoining the defendant to deliver possession to the plaintifif, ........... 801 SIII. Order to dissolve an injunction nisi, ...... 802 XIV. Order upon showing cause against dissolving an injunction, exceptions having been taken to the defendaat's answer, — reference directed to the Master to certify whether the answer is sufficient or not, provided his report be obtained within a limited time, ib. *XV. Order made on the petition of a purchaser directing a reference to the Master to inquire at what time the vendors (who were trustees for sale) had shown a good title, and when the incumbrancers and all parties interested were ready to join; what ex- penses had been incurred by the purchaser in getting in the incumbrances, and in the execution of certain instruments, which ought not to have been borne by him, and also what dilapidations have taken place, . . . . . . , ■ 803 , XVI. Order for the appointment of a receiver with liberty to let the estate with the approbation of the Master, ........ 809 XVII. Order made upon petition for sale of an estate; with liberty to the petitioners to proceed in a suit in the names of the plaintiffs upon indemnifying them against the costs, ........... 810 XIX. Order that service of a subpoena on the defendant's attorney be deemed good service on the defendant, . . . . ■. . . . 811 * XX. Order made on an infant's having attained twenty-one, directing an immediate transfer to her of a sum of stock, and payment of the accruing dividends thereon, also payment of a sum in cash in the bank to her solicitor, and further directing upon the execution by her of the conveyances of certain estates to the purchasers thereof, under a decree for sale made during her minority (which decree is set forth in the recital of the petition,) a transfer to be made to her of a sum of stock purchased with the moneys pro- duced by sale of the estates, and payment of the accruing dividends thereon. (The petitioner having married previously to the transfer of the latter sum, and covenanted that the same should be transferred to the trustees of the settlement executed previously to her marriage, it became necessary to obtain another order;) (see the following order,) ib. *XXI. Order directing the transfer of a sum of stock to the trustees of a settlement, which stock by a former order made before the marriage had been directed to be trans- ferred to the wife upon the execution by her of certain conveyances, . . . 817 XXII. Order for a will to be delivered out of the Prerogative Court in order to be proved on a commission, security being first given for the return of the same, . . 820 XXIII. Order for the like purpose as the preceding order, . . . .821 XXIV. Order to compel a witness to attend, to be examined, or stand committed, . 822 XXV. Order for liberty to exhibit interrogatories as to the credit of a witness, . ib. CHAPTER XVII. DECREES AND DECRETAL ORDERS. I. Decree opening stated accounts, and directing a general account to be taken of all dealings and transactions between the plaintiffs and defendants ; costs given as to so much as relates to setting aside the stated accounts, ..... 823 * II. Decree for payment of the arrears of an annuity secured by bond given for maintenance, with interest upon each half-yearly payment, against the devisee of the real and personal estate of the obligor, . . . . . . . ib. III. Decree by consent directing a reference of arbitration, . . . . 824 IV. Minutes of a decree directing a reference to arbitration, with a direction for ap- pointing an umpire in case the arbitrators disagree, ..... 825 V. Decree for establishing a charity, . . . . . . . ib. VI. Another form of a decree directing the appointment of new trustees of a charity estate, jointly with the surviving trustees, ... . . . . 826 VII. Decree on a bill by creditors against an executrix, . , . . ib. VIII. Part of an order directing the delivery of deeds and attested copies, and the execution of deeds of covenant for the production of deeds, .... 82'7 IX. Decree for a dower out of freehold and copyhold lands, . . . . ib. X. Decree for foreclosure, ........ 829 XI. Minutes of a decree by consent, directing the plaintiff to confirm the defendant's jointure in the settled estates, and when confirmed, the defendant to produce all deeds in her possession or power relating thereto, . . . . . . ib. XII. Minutes of a decree declaring the plaintiff to be entitled to her jointure, and directing the defendant to convey to her the lands to be set out by the Master, . 829 * XIII. Decree directing the execution of several leases, — accounts to be taken of principal and interest due on several mortgages, — and also of the arrears of rent in re- CONTENTS. XXXV spect of different parts of the premises in question, according to certain drafts of leases and agreements between the parties, with a direction to the Master to set an occupation rent on other parts of the premises, and to ascertain what is due in respect thereof; a set-off directed as between the amount of the account of rent to be found due from one defendant, and the amount of principal and interest to be found due on her mortgage ; the bill dismissed as to certain defendants with costs ; there having been several former hearings which proved fruitless, special directions given as to the costs of them, . 830 * XIV. Decree declaring the legitimacy of the plaintiff as the eldest surviving son of his father, as established by the verdict of a jury on the trial of an issue; also de- ctaring certain agreements entered into by the plaintiff with a younger brother to be void, (the grounds on which such decree was founded being inserted in the decree,) and directing a reference to the Master to take an account of moneys paid by the plain- tiff to the defendant, and to compute interest thereon, the amount to be paid into the bank subject to further order; decree made without prejudice to any claims which the defendant might esta'blish against the plaintiff, ...... 835 * XV. Decree for sale of an estate and payment of mortgagees and judgment creditors according to their priorities, ........ 837 XVI. Form of a decree nm where defendant makes default, .... 838 XVII. Minute of a decree for a partition ; — an infant defendant to have a day to show cause, ........... 839 , XVIII. Minutes of a decree for a partition of an advowson in moieties, the bill being dismissed asto one defendant with costs, . . . . . . ib. * XIX. Ordfir for liberty to apply to tlie Court of King's Bench, for payment to the plaintiff and defendants of money paid into the hands of the Master of that court, the amount to be paid into the bank to abide the event of the cause, . . . 840 XX. Direction to a Master to appoint a receiver for one moiety of the estates in ques- tion, the receiver to be at liberty to let the estates with the approbation of the Master, ib. XXI. Minutes of an order directing a consignee of an estate in the West Indies (being appointed by the Master pursuant to the decree,) to transmit his accounts half-yearly of the produce consigned to him, ailso to make insurances upon the consignments, also to transmit stores and effects for the use of the estate; the defendant to deliver over an inventory of the negroes, &c. on the estate, and the consignee to remit to him such sums as should be laid out in negroes and repairs ; the consignee to pass his accounts annually and to pay the balance due into the bank, . . . . . ib. XXII. Minutes of an order directing the appointment of persons to manage an infant's estates in the West Indies, with directions as to remitting the rents and profits ; also directing the appointment of a guardian for the infant, ..... 842 * XXIII. Decretal order under the statute 1 Geo. 2, c. 20, upon a petition for redemp- tion of a mortgage, presented by the party entitled to theequity of redemption, defend- ant to a bill of foreclosure, . . . . . . • . ib. XXVI. Order directing an action of trover to be brought, and that the defendant should make certain admissions, ....... 844 XXVJI. Minutes of an order directing a trial at lq,w in ejectment, . . . ib. XXVIII. Minutes of an order directing a trial at law, to ascertain whether and when a person became a bankrupt, . . . . . . . . ib. XXIX. Order directing a trial at law upon certain issues, with directions in case the jury should find any particular right varying in circumstances from the issues as laid, 845 XXX. Minutes of an order directing a trial at bar in the Court of King's Bench by a special jury, six of whom to have a view of the premises, .. . . . ib. XXXI. Order directing issues to be taken pro confesso, unless the plaintiffs proceed to trial within a limited time, . . . . . . • . ib. XXXII. Minutes of an order directing the plaintiff's bill to be retained for a limited period, with liberty to him to bring an action at law, and in default thereof within the time limited, the bill to stand dismissed with costs, . . . . 846 XXXIII. Order declaring an account to have been forged, and recommending a pro- secution for forgery, . . . . . . . . . ib. * XXXIV. Decree by the Lord Chancellor reversing an order of dismission made by the Master of the Rolls, and directing inquiries as to the application of certain trust- moneys and the' acts of the trustees thereof relative thereto, and in case the Master should find that either of the trustees had committed a breach of trust, then the Master to state in what such breach of trust took place, and whether the cestui que trust knew of the trustees' liability in respect of such breach of trust previously to her executing a power of attorney, ... . . . . . . . 847 * XXXV. Decree on further directions, overr-uling exceptions which had been taken to the Master's report, and declaring that the assets of two deceased trustees were liable to make a good breach of trust by the decree declared to have been committed by the deceased trustees, reserving liberty to their representatives to use the names of the XXXVl CONTENTS. plaintiffs in any proceedings which they might be advised to talte against other per- sons, upon giving an indemnity to the plaintiffs to be settled by the Master ; an account directed to be talten of principal and interest due in respect of the trust-money, and of the plaintiff's costs, the same to be paid out of the assets of the two deceased trustees; the bill dismissed as against one defendant without costs, but without prejudice to any ulterior proceeding, .......•• 848 * XXXVI. Decree for an amount of a testator's personal estate and the annuities and legacies given by his will ; the will not being duly executed, the real estate de- clared to have descended to the testator's daughter and heiress at l&w a plaintiff, and to be subject to the articles entered into upon her marriage ; an annuity in fee granted ^ by King Charles the Second out of the Barbadoes Duties decreed to have become vested under the will in the testator's daughter as a fee-simple conditional, and. to be subject to make good the annuities and legacies given by his will in case the personal estate should be deficient. Liberty reserved to the executor to make his election be- tween a debt claimed to be due to him, and a legacy given to him by Wie will, . 850 * XXXVII. Decree establishing a will with several codicils thereto, and directing , the trusts to be carried into execution, except as to a direction in the will for the accu- mulation of the interest and dividends of the residuary personal estate and the rents of the real estate during the minority of any person or persons entitled thereto, which is declared to be too remote and void f a grandson of the testator, an infant, declared to be entitled to the devised estates for life, with remainder to his first and other sons in tail general; directions given as to an allowance for his maintenance; the testator's widow having made her election to take under the marriage settlement, decided to be barred of her dower; a trustee declared to be entitled to certain leasehold premises for his own benefit, and special directions given as to prospective and retrospective allow- ance, to be made to him for his trouble, . . . ' . . . • 852 XXXVIII. Decree establishing a will of real estate, and directing an account to be taken of the testator's debts, funeral expenses, and legacies, with directions in case the personal estate should be deficient, for raising the deficiency by mortgage or sale of the real estate, .......... 855 XXXIX. Decree for an account of a testator's personal estate, and directing the ap- pointment of a receiver, ......... 856 XL. Decree on further directions, directing the Master to compute subsequent in- terest on such debts as carried interest, and to take an account of any other debts re- maining unpaid, also directing the sale of a sum of stock, and payment thereout and out of other moneys of the debts to be reported due to the creditors, except the plain- tiff, he consenting to waive his right; the executor directed to pay the balance in his hands" into court, and directions given as to applying the proceeds in the hands of a consignee of a West India estate, . . . . . . . 857 XLI. Order directing a reference to the Master to inquire as to what part of a testa- tors personal estate is out on securities, which of them are proper to be continued or called in, with directions given for the latter purpose, ..... 858 * XLU. Decree on further directions in the original cause, and on the hearing of a supplemental suit; the plaintiffs in the latter suit declared to be entitled to the benefit of the proceedings in the original cause, and to prosecute the same ; the accounts directed to be carried on from the foot of the former accounts, and the executor to be charged with a legacy retained by him and allowed in the Master's genernl report; the testator's real estate declared to be subject to the payment of his simple-contract debts, and the plaintiffs in the second suit declared to be creditors to the amount of a sum of stock sold out by the testator, and an account directed to be taken of the dividends which would have accrued due in case the same had not been sold out; construction of the will declared with regard to a devise of certain estates not exceeding £3000 a-year, as being to the separate use of a married woman for life (she having lor some years been separated from her husband,) with remainder to her children in fee; the testator's shares in atheatre directed to be sold, and the purchase-moneys paid into the bank. The costs of iill parties to be taxed as between solicitor and client, and direc- tions given out of what funds the same were to be paid. The prayer of the original bill, the decree made at the original hearing, the Master's general report, and the prayer of the supplemental bill recited, . . . 859 APPENDIX,. Oeders in Chanoeby, ......... 8'73 Index to the- Orders in Chancery, ....... 883 Index to the Pi^joedents and Notes, ....... 889 FORMS OP PLEADINGS EQUITY. CHAPTER I. THE FORMAL PAETS OP A BILL IN EQUITY. An Original Bill praying relief usually consists of Nine Parts : (a) I. The address. , , . , . . The part, of a II. The parties complainants and their descriptions. bill. III. The statement of the plaintiff's case, commonly called the stating part of the bill. IV. The general charge of confederacy against the persons complained of. V. The pretences and charges, commonly called the charg- ing part of the bill. VI. The general averment that the acts complained of are contrary to equity and tend to the injury of the com- plainants, and that they have no remedy, or not a com- plete remedy, without the assistance of the court. VII. The interrogating part. VIII. The prayer of relief according to the case made, con- cluding always with a prayer of general relief at the discretion of the court. IX. The prayer of process. In Chancery. I. Tbh ^^^ To the Right Honorable John Singleton Lord Lyndhurst deess.(J)» («1 See Lord Redesdale's Treatise, p. 41 ; 2 Madd. Oh. Pr. 166. ^■^"' CAa«cfJ' (6) The form of the address is always prescribed by the court upon every change » The rules of practice in the several States, generally prescribe the address of bills. The 20th of the Equity Rules of the United States Courts declares, that 4 COMMON FORMS. Baron Lyndhurst of Lyndhurst in the county of Southamp- ton Lord High Chancellor of Great Britain. of the custody of the seal, or alteration in the style of the person to whom it is com- mitted. When there are Lords Commissioners for the custody of the Great Seal, the address is thus : ' To the Right Honorable , , and , Lords Commis- sioners for the custody of the Great Seal of Great Britain;' or if there is a Lord Keeper, then thus : — ' To the Sight Honorable , Lord Keeper of the Great Seal of Great Britain : When the person holding the seals is a party, or the seals are in the king's hands, the address is thus : ' To the King's Most Excellent Majesty in his High Court of Chancery.' " every bill, in the introductory part thereof, shall contain the names, places of abode and citizenship, of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows : To the judges of the Circuit Court of the United States, for the district of , A. B., of - — , and a citizen of the State of , brings this his bill, against C. D., of , and a citizen of the State of , and E. F., of , and a citizen of the State of . And thereupon your orator complains and says, that, &c." The introduction must correctly state the name, description, and place of abode of each plaintiff and defendant, so that it may be linown where, and to whom to resort, in order to enforce obedience to any order or process of the court. 1 Dan. Ch. Pr., (Boston ed. 1846 ;) Vose V. Phillbrook, 3 Story, 335 ; see Smith v. Smith, 23 Eng. L. & Eq. Rep. 266. Mr. Daniell, (Ch. Pr. 409,) says the modern practice is not to demur or plead to the bill, if it mis-states the plaintiff's residence, but to move that the plaintiff may give secu- rity for costs, and that, in the meantime, proceedings may be stayed. A demurrer, or plea, in the nature of a plea in abatement, is authorized by Winnipiseogee Lake Company v. Worster, 9 Foster, 433. In the courts of the United States, where the jurisdiction depends on citizenship, the fact of citizenship must clearly appear, on the face of the bill. Dodge v. Perkins, 4 Mason, 435 ; Bingham v. Cabot, 3 Dall. 382 ; Jackson v. Ashton, 8 Peters, 148. The want of a proper averment, in respect of citi- zenship, may be taken advantage of by way of demurrer. Story, Eq. PI. § 49. It was formerly held, in some of the Circuit Courts, that the averment of citizen- ship, to give jurisdiction, must be proved on the general issue. As a consequence of this view, if, at any stage of the cause, it appeared that the plaintiff's averment of citizenship was not true, he failed in his suit. But it is now held, and has been so held for many years, that if the defendant disputes the allegation of citizenship, he must plead the fact in abatement of the suit ; and this must be done in the order of the pleading, as at common law. Jones et al. v. League, 18 How. 81. It is held, in the same case, that a change of citizenship from one State to another, must be made with a bona fide intention of becoming a citizen of the State to which the party re- moves. A corporation is ^ot, per ae, a citizen, within the meaning of the Constitution of the United States, Art. III. sec. 2 ; but when it sues, or is sued, the governing ofiB- cers, by whatever name called, are the substantial party ; and if they are citizens of the State which created the corporation, and the other party is a citizen of another State, the Federal Courts have jurisdiction. It is not the stockholders, or corporators in general, but the president and directors, or other governing officers, to whose citi- zenship the court will look. See opinion of Mr. Justice Woodward, in 2 Philadelphia Reports, p. 23, in the case of Wheedm v. The Camden and Amboy Railroad and Trans- portation Company, where the former authorities are ably reviewed. See also, Mar- shall V. The Baltimore and Ohio Railroad Company, 16 How. 314. In the latter case, the declaration set forth, that the " defendants are a body corporate, by the Act of the General Assembly of Maryland;" and it was held a sufficient averment, that the real defendants were citizens of that State. This form of averment has been used for many years. It was held, by Mr. Justice Woodward, supra, that the presumption, that the president and directors are citizens of the State by which they have been incorporated, and wherein their business is transacted, is not rebutted by the fact, that they hold property and transact business, through agencies, in the State where they are sued. In Gassies v. Ballon, 6 Pet. 761, the petition alleged, that " the de- fendant had caused himself to be naturalized an American citizen, and that he was, at the time of filing the petition, residing in the parish of West Baton Rouge." This was, held to be a sufficient averment, that he was a citizen of the State of Loui- siana; and the court said : "a citizen of the United States, residing in any State of the Union, is a citizen of that State." COMMON FORMS. *2 *Iii the Exchequer. To the Right Honorahle John Charles Herries Chancellor 2. In the Ex- and Under-treasurer of his Majesty's Court of Exchequer '^^s^^''- at Westminster, to the right Honorable Sir William Alex- ander Knt. Lord Chief Baron of the same court and to the rest of the Barons there. To the Right Honorable J. P. Esq. Lord Mayor of the 3. In the Lord City of London, and to the Worshipful his Brethren the Mayor's Court Aldermen of the same city. "^ ^'"'^''"■ In the Chancery of the Duchy "I and County of Lancaster. J To the Right Honorable A. B. Chancellor of the Duchy i.intheCkan- and county of Lancaster and one of his Majesty's most Hon- <'^y °f ^*« orable Priyy Council. ■^"'^^f ""f ■' Uounty of Lancaster. In the Chancery of the Great 1 Sessions for Carmarthenshire, j To the Honorable J. H. and J. M. his Majesty's Justices z.lntheChan, in and for the several counties of Carmarthen, Pembroke, and "^v °ft^ Cardigan, the county of the Borough of Carmarthen, and the sims foTcdr- town and county of Haverfordwest. marthensMre. Humbly complaining showeth unto your lordship your orator [or ii. The Inteo- oratrix'] A. B. of in the county of , That, &c. duotion AND NAMES OF THE PAETIES COM- If a Peer (c) joins with commoners, then thus : plainants Complaining showeth unto your lordship your orator the Right soeip™ns '"^ Honorable George Lord K. of, &c. and humbly complaining show j j^ chance (c) The word 'humbly' is always omitted in the commencement of a bill by a Peer. " There are many essential differences between law and equity, as respects the parties to a suit. Equity requires that all persons materially interested in the sub- ject of the suit ought to be made parties, either as plaiutiiTs or defendants, in order to prevent a multiplicity of suits, and that there maybe a complete and final decree between all parties interested ; but this rule is subject to many exceptions, and is more or less within the discretion of the court, and ought to be restricted to parties whose interests are involved in the issue, and to be aflFected by the decree ; and the relief granted will always be so modified as not to affect the interests of others. Mechanics Bank v. Seton, 1 Pet. 299 ; Story v. Livingston, 13 Id. 359 ; Hussey v. Dole, 24 Maine, 20; McOonnell v. McConnell, 11 Verm. 290; Noyes Y. Sawyer, 3 Id. 160; Crocker v. Uiggins, 1 Conn. 342 ; New London Bank v. Lee, 11 Id. 112; Eawley v. Cramer, 4 Cow. '717 ; Oliver v. Palmer, 11 Gill & J. 426 ; Clark v. Long, 4 Rand, 451 ; Yaun V. Hargett, 2 Dev. & Bat. Ch. 31 ; Frazer v. Legare, 1 Bailey, Ch. 389 ; Lucas v. Bank of Darien, 2 Stewart, 280 ; Park v. Ballentine, 6 Blackf. 223. See also, Mande- ville V. Riggs, 2 Pet. 482 ; Caldwell v. Taggert, 4 Id. 190 ; West v. Randall, 2 Mason, 181 ; Brasher Y. Van Cortland, 2 Johns. C. E. 242. An exception to the above rule is where a party is without the jurisdiction, or where the bill seeks a discovery of the ry. COMMON FORMS. unto your lordship your orators Gr. H. of in the county of merchant and J. B. of in the county of gent. That,; &c. proper parties, and these facts are set forth in the bill ; or where the parties are very numerous, or where a few sue for the whole in a question of general interest. West V. Randall, 2 Mason, 181 ; Robinson v. Smith, 3 Paige, C. B. 222. But the Supreme Court of the United States will not make a final decree upon the meritsof a cause, unless all persons who are essentially interested are made parties to the suit, although some of those persons are not within the jurisdiction of the court. Russell v. Clark, 1 Cranch, 69. And where the plaintiff does not either in the prayer for process,^ or by allegation in the bill, designate those who are to be made defendants, the omission is fatal. HlmendorfT. I)elanoey, So-pk. 555. See also, VerplanckY. Mercantile Insurance Company of New York, 2 Paige, 0. R. 438; Talmage v. Pell, 9 Id. 410; Lucas T. Bank of Darien, 2 Stewart, 280; OreenY. McKenney, 6 J. J. Marsh. 193. Parties having no community of interest, or claiming distinct rights, cannot be joined in the same bill; Armstrong v. Athens County, 10 Ohio, 235; Barry v. Rogers, 2 Bibb, 314; Ohio -v. Ellis, 10 Ohio, 456; but all persons baring the same interest, should stand on the same side of the suit ; but if any such refuse to appear as plaintiff, they may be made defendants, their refusal being stated in the bill. Contee v. Dawson, 2 Bland, 264. See also Pogson v. Owen, 3 Dessau. 31; Cook v. Sadly, Cook, 465; Smith V. Saekett, 5 Gilman, 634. Where a general right is claimed against several distinct persons, they may all be joined in one suit. Vann v. Hargett, 2 Dev. &^Bat. Ch. 31. And persons holding distinct interests under the same title, may join in a suit for investigating their equity. Tilford-^. Henderson, 1 A. K. Marsh., 483. See also, Scrimeger v. Buchannon, 3 Id. 219 ; Fellows v. Fellows, i Cow. 682. So, also, sepa- rate and distinct parties may join in a suit to restrain a common nuisance; Murray V. Hay, 1 Barb. Ch. R. 59; and different creditors having a common interest in the relief sought; Conn v. Port Henry Iron Company, 12 Barb. 27; and obligors and obligees; Young y. Lyons, 8 Gill. 162; and all parties having an interest in an equity of redemption, or a residuary interest in settling the matters of the bill. Hall v. Hall, 1 Texas, 526; HoxieY. Carr, 1 Sumner, 173. But where a person has a mere in- terest in the question involved in a suit arising out of a collateral liability, such in- terest does not render him a necessary or even a proper party. Austin v. Richardson, 1 Gratt. 310. Equity, however, will not decree between parties having adverse interests, where the same person represents both parties. Ford v. Whedbee, 1 Dev. & Bat. 16. Nor is an interest, contingent on the event of a suit, such a one as to make the party hav- ing it a necessary party. Barbour v. Whitlock, 4 MOnr. 180. Parties having conflicting interests, each claiming title to the property in dispute to be in himself, cannot unite 'as plaintiffs; and a bill containing an averment that one of the plaintiffs is entitled, and that if he is not, his co-plaintiff is, cannot be sup- ported; Ellicott V. Ellicott, 2 Md. Ch. Decis. 468; but where one of the defendants had sold the land in controversy, and conveyed it with covenants of seisin and war- ranty, it was held that he still had such an interest in the question of title, by reason of his covenants, as to make it proper that he should be joined in the suit. Hartford V. Chipman, 21 Conn. 488. The process alone, and the return upon it, are looked upon as determining who are parties, if there is not a special entry showing the appearance of some one not served with process. De Wolf v . Mallett, 3 Dana, 214. See also White Y. Park, 5 J.J. Marsh. 603; Estill V. Ciay, 2 A. K. Marsh. 497. And where no order of publication against absent defendants was annexed to the certificate of the printer, or identified by it, and there was no appearance as to those parties, it was held that they could not be considered as having been made parties; Young v. Pate, 3 Dana, 306 ; even a pub- lication against persons not made defendants to the bill, does not make them parties to the suit; Letcher v. Schroeder, 5 J. J. Marsh, 513, nor where their names are in- serted in the bill, after publication, are they considered as properly before the court; Taylor v. Bate, 4 Monr. 267; but where a decree has been reversed for the insuffi- ciency of publication, by an absent defendant, he will, on the return of the cause be regarded as a party to the suit without further service of process. Lawlins v! Lackey, 6 Monr. 70. No one need be made a party complainant, in whom there exists no interest, and no one a party defendant, from whom nothing is demanded, and against whom the com- plainant can have no decree. Kerr v. Watts, 6 Wheat. 550. See also, Todd v. Sitr- relt, 6 J. J. Marsh. 425; Duncan v. Mimer, 4 Id. 443; Gilham v. Cairns, Breese, 124- " '! V. Vanderheyden, 5 Cow. 719. And where the testimony of persons materially COMMON FORMS. I Humbly oomplaming showeth unto your honors your orator A. B. 2. In the Ex- *of in the county of debtor and accountant to his maiesty chequer. - 1 . . i 1 [ *3 ] interested in the subject of a bill is taken in the case, and they expressly disclaim all interest, this supersedes the necessity of their being joined as parties. McConnell v. McConnell, 11 Verm. 290. See also, Johnson v. Rankin, 3 Bibb, 86. A person having no interest, and who tnight be examined as a witness, cannot be made a party; Beeves y. Adams, 2 Dev. Ch. 192; but any person may be properly made a party to a petition filed to reach a fund in chancery for distribution, who ought to have been made a party to the original bill. Hayes v. Miles, 9 Gill & J. 193. In a bill for discovery and for a conveyance of laud, all persons interested in the land ought to be made parties. S^ey v. Lambert, 1 Hen. & M. 330. And a person may be made party tq a bill for the purpose of discovery only. Oato v. Easley, 2 Stewart, 214. A third party, acting as umpire between two others, is not a necessary party to a suit between the two, it not appearing that he had any interest therein ; Neale v. Keele, 2 Monr. 31 ; nor a sheriff who holds money in litigation as a mere depository. Smith v. Rogers, 1 Stew. & Port. 317. A magistrate, before whom a judgment was rendered, is not a proper party de- fendant to a bill to restrain proceedings on it. Burpee v. Smith, Walk. Ch. 327. Nor is a sheriff a necessary or proper party to a bill for an injunction, merely because he has in his hands the execution sought to be enjoined. Shrader v. Walker, 8 Ala. 244. Nor slaves, in a bill between third parties, involving their right to freedom. McCand- lish V. Edloe, 3 Gratt. 330. Nor an officer who merely proceeds to collect an execu- tion put into his hands as an officer. Lackay v. Curtis, 6 Ired. Bq. 199. And where an allegation of interest in a third person, not a party to the suit, is denied and not proved, it cannot be assigned for error that such person was not made a party; Bourbon v. Whitlock, 4 Monr. 180; and a suit cannot be maintained in the name of an attorney in fact. Jones v. Hart, 1 Hen. & M. 470. Where the court is called upon to dispense with a proper party, the cause should be stated in the bill. Gilham v. Cairns, Breese, 124 ; Yann v. Sargett, 2 Dev. & Batt. Oh. 31. And where a person has religions scruples against being a party in a suit, he may sue by his prochein ami. Malin v. Malin, 2 Johns. C. R. 238. It is useless and improper to make the counsel of a person a party to a mere bill of discovery, as to papers alleged to be in his possession, even if the matters inquired of by the bill could be properly disclosed by the counsel, if called as a witness against his client; Wakeman v. Bailey, 3 Barb. Ch. B. 482; but where third persons have the possession of books and papers, it is proper to make them parties defendant. Morleyir. Green, 11 Paige, 240. If a party to a suit in chancery becomes insolvent or bankrupt pending the suit, his assignees must be made parties before the cause can be heard. Storm v. Daven- port, 1 Sandf. 0. E. 135. And to a bill by the assignee of a judgment, the assignor should be a party. McKinnie V. Rutherford, 1 Dev. & Bat. 14. See also, Elliott v. Waring, 5 Monr. 338 ; Morey V. Forsyth, Walk. Ch. 465 ; Mumfordy. Sprague, 11 Paige, 438; Bruen v. Crane, 1 Green, Ch. 347 ; Adair v. Caldwell, 1 A. K. Marsh. 55. As to persons necessary to be made parties in assignments of ehoses in action, see Ward v. Van Bokkelin, 2 Paige, C. R. 289 ; BrockwayY. Copp, 3 Id. 539 ; EverettY. Wiron, 1 S. & M. Ch. 67; Bradley v. Morgan, 2 A. K. Marsh. 369. On a bill brought against the obligor in a bond which had been assigned to a third party, to annul deeds of the de- fendant, alleged to be fraudulent as to creditors, it was held that the assignee was a necessary party complainant. Coale v. Mildred, 3 Har. & J. 278. And to a bill on a bond by an assignee, the assignor is a necessary party when the bond was not as- signable at law at the time of the assignment. Odtewood v. Rucker, 1 Monr. 21. See also Forman v. Rodgers, 1 A. K. Marsh. 426 ; Kennedy v. Davis, 7 Monr. 372 ; Allen v. Crockett, 4 Bibb, 240 ; Lemmon v. Brown, Id. 308 ; Sanders v. Macey, Id. 457 : Hancock V. Becham, 5 Litt. 135 ; Anderson v. Wells, 6 B. Monr. 540. The assignee of a patent in part may maintain a suit in law or equity for a viola- tion of the patent without joining the patentee; Brooks v. Bicknell, 3 McLean, 250; but a mesne assignee of a mortgage, who has parted with all his interest, is not a proper party to a bill in equity to redeem, if he has never received any rents and profits ; nor, it seems, if he has ; Lennon v. Porter, 2 Gray, (Mass.) 473. A bill against a person and the "heirs" of another, not naming such heirs, does not make them parties to the suit. Moore v. Anderson, 1 Ired. Ch. 411. As to who are to be made parties in suits by or against the personal representative, sesWest v. Randall, 2 Ma- son, 181 ; Potter v. Gardner, 12 Wheat. 498 ; Mayo v. Tomkies, 6 Munf. 520 ; Coster v. Clarke, 3 Edw. Ch. 428 ; Cabeen v. Gordon, 1 Hill, Ch. 51 ; Vancleave v. Beam, 2 Dana, 155 : Smith v. West, 5 Litt. 48 j Carr V. Callaghan, 3 Id. 365 ; Lee v. Marshall, 2 Monr. COMMON FORMS. as by the records of this honorable court and otherwise it doth and may appear, That, &c. 3. In a suit in Humbly Complaining show unto your lordship your orators the bod ""cor 'ol^ mayor and commonalty and citizens of the city of London, That, &c. rate. 4. In a suit by Humbly complaining showeth unto your lordship your oratrix A. vert((f) whose ^- °f ^^^ ^^6 county of the wife of L. B. of the same place husband is esq. (a defendant hereinafter named) by C. D. of in the county made a defen- of esq. her next friend, That, &c. dant. {d) It sometimes happens that a married woman claims some right in opposition to rights claimed by her husband; as the wife therefore, being under the disability of coverture, cannot sue alone, the bill must be exhibited in her name by her next friend ; 30; Wilkenson y. Perrin, *I Monr. 214; Hawkins v. Craig, 1 B. Monr. 2T; Beall v. Taylor, 2 Gratt. 532 ; Gary r. May, 16 Ohio, 66 ; Allen v. Simons, 1 Curtis, 0. C. 122. A bill against heirs and executors, for conveyance of land sold by the testator to the complainants, should mention their names ; and process should be issued against them, making them parties. Huston v. McClarty, 3 Litt. 274. And as to where heirs slwuld be made parties, see Madison v. Wallace, 2 Dana, 61 ; Moring y. Lucas, 4 Call. 577 ; Schermerhorn v. Barhydl, 9 Paige, C. R. 28 ; Young v. Bilderback, 2 Green, Ch. 206 ; Steele v. Steele, 4 J. J. Marsh. 231 ; Duncan v. Wickliffe, 4 Leam. 452. And all the distributees are necessary parties to a bill for distribution. Hawkins T. Craig, 1 B. Monr. 27. See also Kellar v. Balor, 5 Id. 573 ; Chinn t. Caldwell, 4 Bibb, 543 ; Messervey v. Barelli, Biley, Oh. 138. As to the necessary parties to a suit by or against corporations, see West v. Randall, 2 Mason, 181 ; De WolfY. Mallett, 2 J. J. Marsh. 401 ; Mandeville v. Eiggs, 2 Pet. 482 ; Beatty v. Kurtz, Id. 566 ; Walker v. Hallett, 1 Ala. v. S. 379 ; Fulton Bank v. Sharon Canal Company, 1 Paige, C. R. 219; City of Louis- ville V. Bank of United States, 3 B. Monr. 138 ; McConnell v. Gardner, 1 Morris, 272 ; Mann v. Bruce, 1 Halst. Ch, (N. J.) 413 ; Denton v. Jackson, 2 Johns. 0. R. 320 ; Dana V. Brown, 1 J. J. Marsh. 304; Wood v. Bank of Kentucky, 5 Monr. 194; Martin T. Dryden, 1 Gilru. 187 ; Broomleyy. West Chester Manufacturing Company, 1 Johns. O.R. 366. Where a suit at law is brought against the husband and wife for the purpose of affecting her interest, she is a necessary party to a bill in chancery by the husband for an injunction to restrain proceedings in the suit at law. Booth v. Albertson, 2 Barb. Ch. R. 313. Also in a bill by a husband in the right of his wife, she is a necessary party. Sings v. Warder, 6 B. Monr. 514. In a bill to redeem a mortgage, the personal representative of the mortgagee is a necessary party ; Guthrie v. Sorrell, 6 Ired. Eq. 13 ; and all the mortgagees in whom is vested the legal title, are necessary parties to a bill to redeem, filed by the assignee of the equity of redemption. Woodward \. Wood, 19 Ala. 213. Every party interested in land belonging to co-tenants is a necessary party to a bill for partition ; Borah v. Archers, 1 Dana, 176; Tenable v. Beauchamp, 3 Id. 321; Fope V. Malone, 2 A. K. Marsh. 239 ; and the remaindermen are necessary parties to a suit for the release of title to land held by a tenant for life. Stephens v. Terrel, 3 Monr. 131. See also Swany. Ligon, 1 McO. Ch. 227 ; Hunt v. Booth, 1 Freem. Ch. 215. But a person cannot maintain a bill in his own name, to establish a title to land held jointly with another. Newman v. Kendall, 2 A. K. Marsh. 234. In a suit by a trustee, for any matter concerning the execution of the trust, the cestui que trust must be made a party. Burney v. Spear, 17 Geo. 223 ; Hally. Harris 11 Texas, 300. But a trustee may maintaina bill in equity, to redeem a mortgage made by himself, of the trust estate, without making his cestui que trust a party to the bill. Boyden v. Fartridge, 2 Gray, (Mass.) 190. See also Marriott v. Givens, 8 Ala. 694; Ayers v. Wright, 8 Ired. Eq. 229 ; Woodward y. Wood, 19 Ala. 213 ; General Mu- tual Insurance Company v. Benson, 5 Duer, (N. Y.) 168. Partners in rights to lands, must all join in a suit against adverse claims, or the bill will be dismissed without prejudice. Hoy v. McMarry, 1 Litt. 364. A dormant partner need not be joined in a bill in equity to enforce a contract against a person who dealt only with the ostensible partner. Goble v. Gale, 7 Blackf. 218. COMMON FORM?, 3 Humbly complaining showeth unto your lordship your oratrix A. 5. In a suit by B. of in the county of the wife of D. B. late of the same a feme covert place who hath abjured the realm, [or who hath by due course of band^arab- law been sentenced to transportation to parts beyond the sea where jured the he now is] [or who is an alien enemyl That, &c. realm,(e) or ^ •'-> ' who has been transport- ed, (/) or is Hupably complaining showeth unto your lordship your oratrix S. ^ f^^^ *°^" N. spinster an infant under the age of twenty-one years (that is to fj ., „„„\ J? it, r • T . 1 /I T "^ 1 , ^ 1 1 6. In a suit on sayj 01 the age ot six years and ten months (the daughter and only behalf of an child of J. N. late of, &;c. deceased) by J. M. of, &c. gent, her next infant.(A) friend, That, &c. If adults and an infant are plaintiffs, then thus : Hcmbly complaining show unto your lordship your orator and ora- trixes G. S. of, &c. esq. and S. his wife and M. S. an infant by your orator G. S. her father and next friend. That, &c. *Humbly complaining show unto your lordship your orator A. B. [ *4 J of, &c. and your orator C. D. late of but now of against 7. In a suit on whom a commission of lunacy has been lately issued and is now in behalf of a force, and under which said commission your orator C. D. was duly ^^^ ^'^'^'' found and declared to be a lunatic and your orator appointed com- mittee of his estate, That, &c. Or thus : Humbly complaining showeth unto your lordship your orator H. H. of esq. a lunatic by the Rev. G. I. of clerk the com- mittee of his estate, That, &c. Humbly complaining showeth unto your lordship your oratrix A. 8. In a suit on B. of, &c. spinster being deaf and dumb by 0. D. of, &c. yeoman behalf of a her next friend. That, &c. S dumf but none can bring a bill in the name of a feme covert as her prochein amy without her consent. See Lord Redesdale's Tr. 27; Andrews v.' Cradock, Prec. in Ch. 376; Griffith V. ffood, 2 Ves. 452. (e) A wife whose husband is by act of parliament banished for life may in all things act as a feme sole, and as if her husband was dead ; the necessity of the case requir- ing she should have such power. Countess of Portlands. Prodgers, 2 Vern. 104; Wayland's case, 1 Inst. 133. See also Sparrow v. Carruthers, 2 Bl. Rep. 1197 ; Will. on PI. p. 4. (/) See Newsome v. Boyer, 3 P. Wms. 37. (g) See Durley v. Duchess of Mazarine, 1 Salk. 116. (A) The consent of the infant to a bill filed in his name is not necessary; the next friend being liable to the costs of the suit ; see Ld. Redesdale's Tr. 26, 28 ; Andrews V. Cradock, Prec. in Ch. 376; Mosel. 47, 86; 2 Eq. Ca. Abr. 238. (i) A lunatic may be a party to a bill by his committee to set aside acts during his lunacy. Riddler v. Riddler, 1 Eq. Ca. Abr. 279; 1 Fonbl. Tr. 56. Idiots as well as lunatics sue by the committees of their estates. See Ld. Redesdale's Tr. p. 28 ; Bea. El. of Pleas, p. 312 ; 2 Madd. Ch. Pr. 753, 4. COMMON FORMS. 9. In a suit on Informing showeth unto your lordship Sir J. S. C. Knt. his Ma- behalf of the jesty's Attorney [or Solicitor] General on behalf of his Majesty thrqueen"' That, &c.'Jpr Attorney General of her Majesty the Queen Consort] Consort. That, &C. 10. In a suit Informing showeth unto your lordship Sir James Scarlett Knt. charit'^'thJ^ his Majesty's Attorney-General at and by the relation of G. W. relators hay- clerk rector of the parish of B. in the county of S. and of W. P. and ing no parti- G. E. churchwardens of the same parish for and on behalf of them- cular interest, selves and the rest of the parishioners and inhabitants of the same parish, That, &c. 11. In a suit Informing showeth unto your lordship R. P. A. Esq. his Majesty's on behalf of a Attorney-General by and at the relation of the Mayor and Com- relators a cot- monalty and Citizens of the City of London Governors of Christ's poration hav- Hospital, and humbly complaining show unto your lordship the said ing an interest Mayor and Commonalty and Citizens Governors of the said Hospi- in the matter j rjj^ ^ in dispute.(i) J j-uo.!/, ivu. [ *5 ] *Informing showeth unto your lordship Sir J. S. Knt. his Ma- 12. In a suit jesty's Attomey-Goneral on behalf of C. D. of, &c. a lunatic at and by the Attor- ^ ^jjg relation of E. F. of, &c. gent. That, &c. ney-General •' ; o ? on behalf of a lunatic, (m)" (*) See Lord Redesdale's Tr. p. 22, 3 ; 2 Madd. Ch. Pr. 164. {1} In this case the pleading is styled an information and bill, and is a compound of the forms used for each when separately exhibited. Where a person thus files an information in the name of the Attorney-General he cannot get rid of it without the consent of the Attorney-General, such consent being necessary in all the stages of an information filed in his name ; 2 Madd. Ch. Pr. 165. (m) See Lord Redesdale's Tr. p. 28 ; 2 Madd. Ch. Pr. 745; Attorney-General y. Farnther, Dick. 748. ° In this introductory collection of the formal parts of a bill, no illustration is given of what is usually termed the stating part (sometimes styled premises.) of the bill, which is intended to exhibit the plaintiffs case. This part of the bill will, of course, vary with each particular cause of complaint, and the student must consult the bills at length, which constitute the body of the work. But there are certain gene- ral principles, which cannot safely be overlooked by the draughtsman, whatever may be the subject-matter of his bill. These principles should properly be mentioned in the introductory portion of the work, inasmuch as they are more or less applicable to each of the subsequent classes of bills. The stating part of the bill, sets forth the real substance of the complaiut, and narrates the facts and circumstances, out of which the right to relief is claimed to arise. Wright v. Dame, 22 Pick. 55 ; Linganv. Senderson, 1 Bland. 236; Estep v. Watkins, Id. 486; Oliver v. Palmer, 11 Gill & J. 426; Haywardy. Can-roll, 4 Ear. & J. 518. All the material facts, of which the plain- tiff proposes to offer evidence, must be stated, and, as a general rule, he will not be permitted to offer, or require evidence of any such fact, not so stated. Story, Eq. PI. \ 28. The facts, as stated in the bill, constitute the only ground of relief. Skinner v. Bailey, 1 Conn. 496 ; Parker v. Garter, 4 Munf 273 ; Cowles v. Buchanan, 3 Ired. Ch. 3Y4 ; Parker M. CarUr,i Munf. 273; Miller y. Purse, 1 Bailey, Ch. 187 ; United States Banky. Shultz, 3 Ham. 61 ; Pinson v. Williams, 23 Miss. 64. It is only necessary to state facts, unless law and fact be so blended, as to render it necessary to state both. Kelly's Heirs v.Maguire, 15 Ark. 555. A general charge or statement, however, of the matter of fact, is suflicient, and it is not necessary to charge minutely, all the circumstances which may conduce to prove the general charge ; for these circumstances are properly matters COMMOM FORMS- But now so it is may it please your lordship that the said R. H. IV. The gene combining and confederating with divers persons [or — if there are " " EAL CHARGE OP OONFEDE- of evidence, which need not be cliarged in order to let them in as proofs. A plain- tiff is not entitled to call for an answer to a statement in a bill, which is introduced by way of recital, and not as positive allegation. Mclntyre\. Trustees of Union Col- lege, 6 Paige, Oh. R. 239. Even though the bill be taken as confessed, there can be no relief, unless it contains the reqniste allegations. Sirother v. Lovejoy, 8 B. Mon. 135. Whatever is necessarily within the knowledge of the pladntiflF, shonld be al- leged, positively and with precision, but the claims of the defendant may be stated in general terms. Story, Eq. PI. § 255. And where facts are charged in the bill to be, or must necessarily be, in the knowledge of the defendant, a precise allegation is not necessary. Aikin v. Ballard, Rice, Ch. 13. Equity is less rigorous than law, in demanding the correct use of apt technical language ; and mispleading, in matter of form, will not prejudice a party, provided the iCase is made right in matter of sub- stance, and supported by proper evidence. Tieman v. Poor, 1 Gill & J. 2] 6 ; BirelyY. Staley, 5 Id. 432. Strictness in matter of substance is, however,.as requisite as at law. Daniels^. Taggert^lGiWkS.^W ; seeSurgetr. Bgers, 1 Hemp. 715 ; Oockrellv. Gvrley, 26 Ala. 405. Still, it is recommended by Mr. Daniell, (Ch. Pr. p. 414,) that where it is intended to express things, for which adequate legal or technical expressions have been adopted, in pleadings at law, such expressions should be used, as they conduce to brevity and clearness. The general principles respecting multifariousness and cer- tainty, which prevail at law, are applicable to pleadings in equity. Sheppard v. Shep- pard, 6 Conn. 37. Where a biU seeks an account, upon a charge of fraud, it is not enough to state the fraud in general terms, but the particular act of fraud should be pointed out ; Story, Eq. PI. | 251 ; and the same rule applies to a bill to open a settled account ; the specific errors must be pointed out. Id. See also, Mebane v. Mebane, 1 Ired. Ch. 3T6. And if these errors are not specified in the bill, the plaintiff will not be permitted to prove them at the hearing, even though the settlement of the account is expressed to be errors excepted. 1 Dan. Ch. Pr. 424 ; see Bull v. Bvll, 2 Root. 476. But it seems, that although a bill to open an account, contains no direct allegation of fraud, yet, if it alleges facts which constitute fraud, direct or constructive, it will be sustained, on proof of such facts. Farman v. Brooks, 9 Pick. 212. On a bill for specific performance, fraud in the defendant cannot be shown as the ground of a de- cree, unless it be substantially averred in the bill. Crocker v. Siggins, 1 Conn. 342. If the facts, appearing in a suit for the execution of a trust, tend to show a covi- nous purpose in the execution of the trust, such purpose will not be noticed, without a dire(;t averment thereof in the pleadings. Hudgins v. White, 2 Ired. Ch. 5Y5. In general, where a bill charges fraud, the fraud must be specifically set out. ElstonY. Blanehard, 2 Scam. 420 ; Lewis v. Lewis, 9 Mis. 183 ; Carter v. Anderson, 4 Geo. 516; Miller v. Cottm, 5 Id. 341 ; Witherspoon v. Carmichael, 6 Ired. Eq. 143 ; Frasefr v. Hext, 2 Strobh. Eq. 250; Steedv. Baker, \3G(iB.ii.36Q; Smells. Boudinot, 1 Stockt. (N.J.) 381; Moore V. Greene, 19 How. (U. S.) 69. Matter of mere inference and argument, will be expunged, usually, it seems, with costs. Hoodr. Fnman, 4 Johns. Ch. R. 437. The facts must be so alleged, as to put them in issue, or the relief cannot be granted, though the fact^ be proved. Harding y. Handy, 11 Wheat. 103. And although the plaintiff may make out, by proof, a case entitling him to relief, yet he cannot recover upon a bill, the allegations of which are not adapted to the case proved. Gibsony. Carson, 3 Ala. 421 ; see Knox v. Smith, 4 How. 296 ; White v. Yaw, 7 Verm. 357 ; Kidd v. Manley, 6 Cush. 156. But a verbal variance, in setting out an instrument, will not be fatal, if the legal eflect and operation of the instrument produced, are the same as that of the instrument set forth in the bill. Sears v. Barnum, 1 Clark, 139. In a bill for spe- cific performance, a variance, in the language of the contract proved, is not material, if the signification be the same. McWhorter v. McMahan, 10 Paige, Oh. R. 386 ; see also, Ontario Banky. Schermerhom, Id. 109 ; and Baggoty. Eagleson, 1 Hoff. Ch. R. 110. If a bill makes an instrument a part thereof, without setting forth the contents, or annexing a copy, it is bad on demurrer. Martin v. McBryde, 3 Ired. Ch. 531. The instrument must, in such case, be annexed, or its contents set forth in the bill. King V. Trice, Id. 568. The exhibits are not a part of the bill, but are a part of the proof, and cannot aid defective statements in the bill. Gaton v. Willis, 5 Ired. Eq. 335. Copies of deeds, filed with a bill as exhibits, are made in legal intendment, portions thereof, and should be objected to before the hearing, if at all. Surget v. Byers, 1 Hemp. 715. And where the execution of a deed has been admitted, in the answer, and a copy has been filed, as an exhibit, it cannot be objected to for the first time at the trial. Oeen v. Campbell, 2 Jones, Eq. (N. 0.) 446. 5 COMMON FORMS. RACY AOAiNBT sevBTal defendants, then thus .•—combining and confederating with coMPLMNE^ *^^ ^^^^ ^■^- *°<^ ^- H- ^^^ ^^*^ ^^^^^^ °^^^^ persons, or— the ^^MPLAiNED ^_^.^ g^^ g.^ j^ ^ ^^^ -^^ ^ combining and confederating together(w) and with divers persons] at present unknown to your orator whose names when discovered your orator prays he may be at liberty to insert herein with apt words to charge them as parties defendants hereto, and contriving how to wrong and injure your orators in the premises he the said R. H. absolutely refuses to comply with such requests, and he at times pretends that, &c. Another Form: But now so it is may it please your lordship that the said R. H. L. M. and N. M. in concert with each other allege that, &c. {or, colluding and confederating with each other refuse to comply with such requests, and pretend that, &c.] " (n) Where a charity is interested in the fund in question the names of the treasurer and his Majesty's Attorney-General may be introduced thus ; ' and also W. W. of, &c. esq. the treasurer of the Female Orphan School, commonly called the Asylum, and joining with Sir J. S. C. Ent. his Majesty's Attorney-General, they the said R. H. L. M. and N. M. absolutely refuse,' &c. * This part of the bill is treated as mere surplusage, and, if inserted, need not be denied or responded to, in the answer. If a combination, or confederacy, is really relied on, as a ground of equitable jurisdiction, it must be specially, and not gene- rally charged. Story, Eq. PI. §J 29, 30 ; 1 Dan. Ch. Pr. 426. Indeed, by the Equity Rules of the Federal Courts, of Pennsylvania, Massachusetts, and perhaps of other States, the insertion of the common confederacy clause, is either left to the option of the pleader, or is wholly prohibited. A general charge of a fraudulent combina- tion, &c., usually inserted in bills, is not sufScient to charge fraud ; there must be a specific allegation of fraud, stating the facts. Lewis v. Lewis, 9 Mis. 183. The allega- tion of confederacy is not essential, except where it is intended to charge fraud and combination, specifically. Stone v. Andrews, 6 Foster, 506. " The phraseology by which pretences are inserted in a bill, will appear, by refe- rence to the subsequent forms of bills. This part of the bill is introduced wherever the plaintiif is aware at the time of filing the bill, of any defence which may be made ' to it, and has any matter to allege, which may avoid the effect of the defence. Thus, a defence may be anticipated and replied to in the bill. The charging part may however, often be, and frequently is, omitted, as the stating part should fully unfold the plaintiff's case ; but it may often be beneficially used, for the purpose of intro- ducing matter, which would formerly have been the subject of a special replication, and as a foundation for interrogatories, which may lead to a discovery of the de- fendant's case, and for collateral inquiries, not necessarily arising out of the main case presented by the bill, but which, without some allegation or charge in the pleadings to warrant them, could not be introduced. 1 Daniel, Ch. Pr. 428. A charge in the bill, that the defendant pretends that a certain fact has taken place, puts that fact in issue. lb. It is perjury to swear to a bill, in which the plaintiff knowingly makes a false charge in the charging part, as much as if he makes a false statement in the stating part. Smith v. Clark, 4 Paige, 368. A defect in the charg- ing part, cannot be supplied by a subsequent interrogatory. Mechanics Bank v. Levy, 3 Paige, Ch. R. 606. If the equity of,' the plaintiffs case is not unfolded in the stat- ing part of the bill, but appears only in the charging part, and thus consists only in an allegation, that the contrary of such pretences is the truth, the bill will be bad. Story, Eq. PI. g 32. But it is said, in 2 Hare, R. 264, that a fact, introduced by way of charge in a bill, is as well pleaded as if introduced in the shape of what is tech- nically called a statement, and that there is no rule that every material fact must precede what is termed the charging part of the bill. See the authorities cited in Story, Eq. PI. ^ 32 a, and notes, (6th ed.; COMMON FOKMS. 5 All which actings doings pretences and refusals are contrary to VI. The gene- equity and good conscience and tend to the manifest 'wrona; and in- bal averment • P ° , ■ ,1 ■ T 1. J. THAT THE ACTS jury 01 your orators m the premises. iN consideration wnereot complained and forasmuch as your orators can only have adequate relief in the op aeb oon- premises in a court of equity where matters of this nature are pro- traky to perly cognizable and relievable, To the end therefore that the said ^^^n™''°'!'„ T-» TT -I /->! TT T 1 • /» 1 1 T 1 CLUDlNG WITH K. H. and C. H. and their confederates when discovered may upon theintroddc- their several and respective corporal oaths to the best and utmost of toey words to their several and respective knowledge remembrance information and q^tin ™p^t ' belief full true direct and perfect answer make to all and singular the matters aforesaid, and that as fully and particularly as if the same were here repeated and they and every of them distinctly inter- rogated thereto, and more especially that the said confederates may in manner aforesaid answer and set forth Whether, &c.^ ' This is usually termed the Jurisdiction clause, but it is not necessary, and will not, of itself, give jurisdiction where it would not otherwise attach ; and if the bill is, in other respects, sufficient, it will be sustained. Story, Eq. PI. § 10, and"^ 34. The bill itself must state a case within the proper jurisdiction of a Court of Equity. Chase V. Palmer, 12 Shep. 341. But where the courts of a State have not a general jurisdic- tion in equity, it must be made to appear afSrmatively on the face of the bill, that the case is within the jurisdiction of the court. May v. Parker, 12 Pick. 34. e The ancient precedents of bills contained no special interrogatories, and they are said still to be not absolutely necessary ; for if the defendant answers fully, the object of the special interrogatories is accomplished. Story, Eq. PI. § 38. One of the'Equity Rules of the United States Courts, formerly relieved a defendant from answering any statement or charge in the bill, unless particularly interrogated there- to; but by a subsequent rule, adopted January 14th, 1851, the former rule was repealed, and it was declared that it should not be necessary thereafter to interrogate a defendant, specially and particularly, upon any statement in the bill, unless the complainant desired to do so to obtain a discovery. Rule XCIII. In South Caro- lina, the use of the interrogatory part of bills is discontinued. 1 Dessaussure, 150. In Massachusetts, by rule of court, the bill concludes with a general interrogatory. 24 Pick. Rep. 411. A note or memorandum, at the foot of the bill, should specify the interrogatories which each defendant is required to answer ; and this note, by the rules of the United States courts, and the courts of Pennsylvania, is treated as a part of the bill; and the addition of such a note, or any alteration in, or addition to it, after the bill is filed, is considered and treated as an amendment of the bill. In Shedd v. Oarfield, 5 Vermont, 39, it is said, that a bill which wholly omits the interrogatory part, is de- fective. But in New York, it has been held, that the general interrogatory, or requi- sition in a bill, " that the defendant may full answer make, to all and singular the premises, fully and particularly, as though the same were repeated, and he specially interrogated, &c.," entitles the plaintiff to a full disclosure of the subject-matter of the bill, equally as if he had specially interrogated the defendant to every fact stated in the bill. Methodist Episcopal Church v. Jaques, 1 Johns. Ch. 65. If there is nothing in the prior part of a bill to warrant a particular interrogatory, the defendant is not bound to answer it. It is when the interrogatories are founded on matter contained in the charging part of the bill, that they become a part of it, though not indispen- sable to a bill in equity. Eberly v. Oroff, 9 Harris, 256. And a defendant is not bound to answer interrogatories, asking a disclosure of matters, no way connected with, or material to the case. 1 Wright, 323 ; Hagthorp v. Hook, 1 Gil! & Johns. 270. And when a question arises upon the sufficiency of the answer, we are to see whether the allegations in the bill justify the interrogatory, and of course impose the necessity of answering it. Story, Eq. PI. | 36. But a variety of questions may be founded on a single charge, or the incidental circumstances of a fact alleged. If an answer is made to an interrogatory, which does not properly grow out of the bill, and the answer is replied to, it is thereby put in issue, and the informality is cured. 1 Dan. Ch. Pr. 432; Story, Eq. PI. §| 36, 37. The interrogatories are to be con- strued by the charging part of the bill, and a defective statement of facts cannot be supplied by a subsequent interrogatory. Mechanics Bank v. Levy, 3 Paige, Ch. R. 606 ; Cowles T. Buchanan, 3 Ired. Oh. 374 ; Parker v. Carter, 4 Munf. 273. COMMON FORMS. VIII. The And that your orator may have such further or other relief in the PEAYEE FOB *prem|ses as the nature of the circumstances of this case may re- [ " J quire and to your lordship shall seem meet. GENEBAL BE- LIEF AT THE DISCEBTION OF THE COUET. IX. 1. The PEOOESS OF SUBPffiNA.'' May it please your lordship to grant unto your orator his Majesty's most gracious writ of subpoena to be directed to the said A. B. there- by commanding him at a certain day and under a certain pain there- in to be limited personally to be and appear before your lordship in this honorable court, and then and there full true direct and perfect '^ The prayer for relief will depend upon the facts of each cage, and the nature of the relief sought, and should be framed with great care. Unless there be a prayer, there can be no decree for the complainant. Driver v. Foriner, 5 Porter, 9. Bills usually contain a special prayer for the particular relief, and also a prayer for gene- ral relief Where special orders and provisional processes are required, founded on particular circumstances, such as writs of injunction, writs of ne exeat regno, orders to transfer funds, or to preserve property pending the litigation, they are usually made the subjects of a special prayer. Story, Eq. PI. § 43 ; Mitf Eq. PI. 46. _ If no relief is prayed, against a, party who is made defendant, the bill will, as to him, be dismissed. 1 Hayw. 167. Though the plaintiff should mistake the relief to which he is entitled, in his special prayer, the court may yet afford him the relief to which he hag a right, under the prayer for general relief, provided it is such relief, as is agreeable to the case made by the bill. Story, Eq. PI. I 40. Under the prayer for general relief, such relief only can be granted, as the case stated in the bill, and sustained by the proof, will justify. Hob son Y. Mc Arthur, 16 Pet. 182; Gibson -v. McC'ormick, 10 Gill & J. 65 ; Lingan v. Henderson, 1 Bland. 236 ; James v. Bird, 8 Leigh, 510; Danforth v. Smith, 23 Vt. (8 Washb.) 247; Brown v. McDonald, 1 Hill, Ch. 297 ; Jones T. Bush, 4 Harring. 1 ; Kelley v. Payne, 18 Ala. 371 ; Stone v. Ander- son, 6 Foster, (N. H.) 506. In the last case, a doubt is expressed whether a com- plainant, under the general prayer, is entitled to any relief consistent with the case made, though inconsistent with the specific relief prayed for. Although the plain tiff is not confined to the specific relief asked in his bill, yet he cannot obtain relie in opposition to its allegations. Hilleary v. Hurdle, 6 Gill, 105. It seems, that in the case of an infant plaintiff, relief may be given under the prayer for general relief, which is not consistent with the specific relief prayed for. Kornegay v. Carroway, 2 Dev. Ch. 403. But the general rule is, that there can be no claim recovered, or relief granted, distinct from, and independent of, the specific relief prayed for, and put in issue by the bill. Sheppard v. Starke, 3 Munf 29 ; Thomson v. Smithson, 7 Porter, 144 ; Allen v. Coffman, 1 Bibb, 469. The prayer for the other relief, should be inserted in the bill in the disjunctive. Pleasants v. Glass- cock, 1 S. &M. Ch. 17. See, however, Pensenneau v. Pensenneau, 22 Mis. (1 Jones,) 27, where it was held, that a bill cannot pray for the execution of a trust, and, in the alternative, a partition, if the facts proved do not warrant the relief first prayed, and that the plaintiff must assume that the facts are one way, and ask the appropriate relief. Where the case made by tlie bill, may entitle the plaintiff to one of two kinds of relief sought, but not to both, the prayer should be in the alternative, and such a form of prayer is appropriate, where the plaintiff is in doubt as to the kind of relief to which the facts stated in the bill, entitle him, or the nature of the relief depends upon a particular fact or circumstance, known to the defendant, and of which a discovery is sought by the bill, liloyd v. Brewster, 4 Paige, Ch. R. 537. For in- stance, a bill asking relief of A., if he had authorized B. to collect money, and of B., if he has collected it without authority, would be good. Tlwmason v. Smithson, 7 Porter, 144; Strangey. Watson, 11 Ala. 324. Both of the alternative prayers should be cognizable by the court, and they should not be framed so as to elude a rule of court. Lingan y. Henderson, 1 Bland. 236. A prayer, assigning several reasons for vacating a deed, is considered as so many separate prayers ; and if one reason be valid, it is error to reject the whole prayer. American Exchange Bank v. Inloes, 7 Md. 380. But a bill, which states the cause of action in the alternative, is insufficient, if one of the alternatives shows that there is no right to recover, as the bill must be construed most strongly against the pleader. Andrews v. McCoy, 8 Ala. 920. COMMON FORMS. answer make to all and singular the premises, and further to stand to perform and abide such further order, direction and decree(o) therein as to your lordship shall seem meet. And your orator shall ever pray, &c. May it please your lordship to grant unto your orator his Majesty's 2. Prayer of most gracious -writ of subpoena to be directed to the said A. B. &c. P^°^^?' ^'^,^° \_As in the preceding form, No, 1, as far as the word ^premises' and Attorney- proeeed thus:'] and that his Majesty's said Attorney-General being General is also attended with a copy of this bill may appear and put in his answer * defendant, thereto ; and that all the said defendants may stand to and abide such order direction and decree in the said premises as to your lord- ship shall seem meet. And your orator shall ever pray, &c. May it please your lordship the premises considered to grant unto 3. Prayer for your orator your lordship's letter missive to be directed to the said a letter mia- J. Earl of B. thereby requiring him to appear to and answer your '^ orator's said bill of complaint, or in default thereof his Majesty's most gracious writ of subpoena to be directed to the said J. Earl of B. thereby commanding him, &c. {jproeeeding as in form No. 1.] May it please your lordship to grant unto your orator not only his 4. Prayer for Maiesty's most gracious writ of injunction issuina; out of and under f"^ injunction • t to rsstr&m tii6 the seal of this honorable court to be directed to the said A. B. defendant to restrain him from(g') proceeding at law against your orator from proceed- *touching any of the matters^^in question, but also his Majesty's at '^t^- most gracious writ of subpoena to be directed, &c. \_proceeding as in [ *7 J form, No. 1. p. 6.] < May it please your lordship to grant unto your orator not only 5. Prayer for his Maiesty's most gracious writ of iniunction issuing out of and ''■^ injunction under the seal of this honorable court, to be directed unto the said ^ A. B. to restrain him, his servants, workmen, and agents from com- mitting waste, spoil or destruction in the mansion or other houses upon the estates in question, and from cutting down any timber or (o) In all bills of discovery merely or to perpetuate the testimony of witnesses, the words in italics must be omitted. As to the time of issuing the process of subpoena, see the 4th and 5th Ann. c. 16, s. 22. (p) The right to the letter missive and copy of the bill is the privilege of Peerage not of Parliament; in this respect therefore there is no distinction between English, Scotch, and Irish peers ; all being entitled equally to the privilege of Peerage with the exception of those who choose to waive it in order to sit in the House of Com- mons. An injunction therefore or other process not so accompanied, is good for nothing. Lord Milsingtoun v. Earl of Porlmore, I Ves. & Bea. 419; Robinson v. Lord Rokeby, 8 Ves. 601, 2d edit.; 2 Madd. Ch. Pr. 196, 1. See also the 12th and 13 Will. 3, c. 3, s. 1 and 2. 11 Geo. 2, c. 24. 10th Geo. 3, c. 50, s. 6. 39 & 40 Geo. 3, c. 67. {q) The prayer for the writ of injunction must be conformable to the prayer of the bill. COMMON FORMS. other trees growing upon the said estates, which are planted or growing there for the protection of the said mansion and other houses belonging to the said estates, or for the ornament of the said house, or which grow in lines, walks, vistas or otherwise for the ornament of the said houses, or of the gardens, parks, or pleasure grounds thereunto belonging, and also to restrain him, his servants, workmen and agents, from cutting down any timber or other trees, except at seasonable times, and in husband-like manner, and like- wise from cutting saplings and young trees not fit to be cut, as and for the purposes of timber, but also his Majesty's most gracious writ of subpoena, &c. [proceeding as inform, No 1. p. 6.] 6. Prayer for May it please your lordship the premises considered to grant a writ of ne unto your orator not only his Majesty's most gracious writ of ne exeat exeat regno, ^.g^^j^ issuing out of and under the seal of this honorable court to restrain the said defendant C. D. from departing out of the juris- diction of this court, but also his Majesty's most gracious writ of subpoena,(r) &c. [proceeding as inform, JSfo. 1. p. 6.] t. Prayer for May it please your lordship therefore to grant unto your orator a writ of cer- a Writ of certiorari to be directed to the said Lord Mayor of the tiorari.- Qijy of London and his Brethren the Aldermen of the said city, thereby commanding them upon the receipt of the said writ to cer- tify and remove the record of the said cause and all proceedings thereon into this honorable court, (s) and to stand to and abide such order and direction as to your lordship shall seem meet and the circumstances of the case may require. And your orator shall ever pray, &c. {t) Upon an application for tlie writ of ne exeat regno no subpoena is seryed, although it is always pjayed, but upon personal service of tlie writ the defendant is bound to appear. Having appeared, he must put in his answer, and may then apply to set aside the writ : but his afSdavit cannot be received. Russel v. Aahby, 5 Yes. 98 ; and see Bea. Ne Ex. Reg. p. 67 ; 2 Madd, Ch. Pr. p. 226. («) No appearance or answer is required and consequently the writ of subpoena is not prayed ; see Lord Redesdale's Tr. p. 49 ; Harr. Ch. Pr. (Ed. Newl.) 49, 560 ; 1 Madd. Ch. Pr. 12, 182. The old form of a bill of this sort with the mode of proceed- ing thereon, is to be found in "West's Cymbol. part ii. p. 258, 286. BILLS FOR SPECiriC PBKFORMANCB. *8 ^CHAPTER II. ORIGINAL BILLS PRAYING RELIEF. 1. BILLS FOR SPKOIFIC PERFORMANCE OP AGREEMENTS." *I. Bill hy a vendor against a Peer, for the specific performance of a written agreement for the purchase of a freehold estate, the title only being in dispute. To, &c. \_See j'orm iVo.. 1.] Humbly complaining showeth unto your lordship your orator J. 0. of, &c. esq. That your orator being seised or well entitled in fee " Mr. Batten, in his " Treatise on the Law relating to the Specific Performance of Contracts," treats of the essential conditions of a contract, which will be specifically enforced in a court of equity, under the following propositions : the contract must be made between competent parties ; it must be entered into willingly ; the terms must be understood by the parties, and be certain and defined ; the consideration must be valuable ; there'must be mutuality of consideration and remedy ; it must be properly proved; the party seeking its performance, must fulfil his obligations under it; it must be such as the court can enforce ; it must be one proper to be executed ; it must be one on which there is not an adequate remedy at law ; it must not be an unreasonable contract, on which there might be relief at law ; and the conduct of the party seeking the performance, must have been correct. Chancery will often refuse to enforce a contract, which it would also refuse to an- nul, and will leave the parties to their remedy at law. Jackson r.Ashton, 11 Pet. 229 ; Seymour v. Belancey, 6 Johns. C. R. 222, and 3 Cow. 445; CUtherall v. Ogilvie, 1 Dessau. 250; Barksdale v. Payne, Riley, Ch. 174; Gasque v. Small, 2 Strobh. Eq. '12 ; Henderson v. Hays, 2 Watts, 148. Specific performance is not ex debito Jusliiice,hnt rests in the sound discretion of the court, under all the circumstances of the particular case; McNeil \.Magee, 5 Mason, 244 ; and it is not decreed where there has been long delay, or laches, or a material change of circumstances. Id. See also, Pigg v. Corder, 12 Leigh, 69. The discre- tion of the court is not, however, an arbitrary one, but is regulated by rules and principles. Griffith v. Prederick County Bank, 6 Gill & J. 424; Meeker v. Meeker, 16 Conn. 403 ; Seymour v. Delancey, 3 Cow. 445 ; S. C. 6 Johns. 0. R. 222 ; King v. Mor- ford, Saxton, 274; Anthony v. Leftmck, 3 Rand. 238; Prater v. Miller, 3 Hawks. 629 ; Turner v. Clay, 3 Bibb, 52 ; Frisby v. Ballance, 4 Scam. 287 ; Broadwell v. Broad- well, 1 Gilm. 599 ; McMurtrie v. Bennett, Harring. Ch. 124; Dougherty v. Hampston, 2 Blackf. 273 ; MeWherter -f . McMahon, 1 Clark, 400 ; Henderson v. Hays, 2 Watts, 148 ; Perkins v. Wright, 3 Har. & McHen. 324; Leigh v. Crump, 1 Ired. Ch. 299; Gould Y. Womack, 2 Ala. 83 ; Hester v. Hooker, 7 S. & M. 768 ; Tobey v. County of Bristol, 3 Story, 800 ; Clement v. Reid, 9 S. & M. 535 ; Tyson v. Walts, I Maryland Ch. Decis. 13 ; Roundtree v. McLain, 1 Hemp. 245 ; Lloyd v. Wheailey, 2 Jones, Eq. 267 ; Ash v. Dagg, 6 Ind. 259. The contract must be free from fraud or surprise, and fair and just in all its parts, or the plaintiff will be left to his remedy at law. Seymour v. Delancey, 3 Cow. 445 ; Griffith V. Frederick County Bank, 6 Gill & J. 424 ; Modisett v. Johnson, 2 Blackf. 431. And performance will not be decreed of an imperfect, inchoate, or hard bargain. Ohio V. Baum, 6 Ham. 383. There must also be mutuality and reciprocity of obli- gation. McMurtrie v. Bennett, Harring. Oh. 124; Hawley v. Sheldon, Id. 420 ; Hutche- son V. McNutt, 1 Ham. 14; Cabeen v. Gordon, I Hill, Ch. 51 ; Benedict v. Lynch, 1 Johns. C. R. 370 ; Ohio v. Baum, 6 Ham. 383. Where a party has failed, without sufilcient excuse, to execute his part of the con- tract, and tliere has been no acquiescence in the delay, by the other party, the court will not decree specific performance. But if one party has been prevented, by any BILLS FOR SPECIFIC PERFORMANCE. simple of or to a certain messuage or dwelling-house with the appur- tenances situate at and hereinafter described, and being de- good cause, from performing his part of the agreement, at the stipulated time, and the other party has suffered no material injury by the delay, the court will not re- fuse its aid. Longworth v. Taylor, 1 McLean, 395 ; White v. Law, 1 Verm. 357 ; Cleaveland v. Benton, 11 Id. 138 ; Ooodell T. Field, 15 Id. 448 ; Hatch v. Cobb, 4 Johns. G. R. 559 ; Lewis v. Woods, 4 How. (Miss.) 86. The complainant must have per- formed those acts which constituted the consideration of the defendant's promise. Watts V. Waddle, 6 Pet. 389 ; Greenup v. Strong, 1 Bibb, 590 ; Bearden v. Wood, 1 A. E. Marsh. 450 ; Logan v. McChord, 2 Id. 224 ; Moore v. Skidmore, 6 Litt. 453 ; Clay V. Turner, 3 Bibb, 52. And he must show that he has not been in fault, but has taken all proper steps towards performance on his own part, and hag been ready, desirous, and prompt, to perform. Rodgers v. Saunders, 16 Maine, 92 ; Brown v. Haines, 12 Ohio, 1 ; Doyle v. Teas, 4 Scam. 202; Kendall v. Almy,2 Sumner, 278. If one party has been in default, and specific execution would be injurious to the other party, it will not be decreed. Vail v. Nelson, 4 Rand. 478. But failure to perform a merely nugatory act, is not material. Coale v. Barney, 1 Gill & J. 324. Although great lapse of time will not be'a bar, where the complainant has been in no default, and has been reasonably active during the whole time, in asserting his rights and endeavoring to enforce performance ; Coulson v. Walton, 9 Pet. 62 ; yet where no effort had been madejby a vendee in his life-time, nor by his heirs, after his death, until twenty-nine years had elapsed, and the land had risen in value, and other cir- cumstances had occurred, the lapse of time was held a conclusive bar. Bolt v. Rogers, 8 Pet. 420. See, on the general subject of the effect of delay, the following cases. Pratt v. Carroll, 8 Cranch, 471 ; Williams v. Mattocks, 3 Verm. 189 ; Miller v. Bear, 3 Paige, C. R. 466; Waters v. Travis, 9 Johns. Rep. 450; Jackson v. Edwards, 22 Wend. 498 ; Smedley v. More, 26 Id. 238 ; New Barbadoes Toll Bridge v. Vereeland, 3 Green, Ch. 157 ; Haffnenr v. Dickson, 2 Har. & J. 46 ; Richardson v. Baker, 5 Gall. 514 ; Williams v. Lewis, 5 Leigh, 686 ; McOalliard v. Aikin, 2 Ired. Gh. 186 ; Falls v. Carpenter, 1 Dev. & Bat. Ch. 237; Strickland Y. Fowler, Id. 629; Osborne v. Bremar, 1 Dessau. 486 ; Koen v^ White, Meigs, 358 ; Craig v. Leiper, 2 Yerg. 193 ; Bracken v. Martin, 3 Id. 55; Childress v. Holland, 3 Hey. 274; McMillin v. McMillin, 7 Hour. 560; Johnston v. Mitchell, 1 A. K. Marsh. 225 ; Logan v. McChord, 2 Id. 224; Eubank T. Hampton, 1 Dana, 343 ; Broaddus v. Ward, 8 Mis. 217 ; Scott v. Barker, 14 Ohio, 547 ; Mason v. Wallace, 3 McLean, 148 ; Tiernan v. Roland, 3 Harris, 429 ; De Cordova V. Smith, 9 Texas, 129 ; Smith v. Hampton, 13 Id. 459. After an action at law has been commenced for the breach of the contract, the defendant cannot go into equity for specific performance, unless there are some equi- table grounds of relief against his breach of it, and entitling him to specific per- formance. Long V. Colston, 1 Hen. & M. 111. If specific performance would be decreed between the original parties to a con- tract, it will be decreed between all claiming under them, unless there are inter- vening and controlling equities. Hays v. Hall, 4 Porter, 374. It is a general rule, that the terms of the contract must be clear, definite, and positive, and its terms must be such that neither party could reasonably misunder- stand them ; nor should it be vague or uncertain in any of its essential particulars. Colson V. Thompson, 2 Wheat. 336 ; Carr v. Duval, 14 Pet. 77 ; Prater v. Miller, 3 Hawks. 628 ; Montgomery v. Norris, 1 How. Mis. 499 ; Waters v. Brown, 7 J. J. Marsh. 123 ; Filzpatrick v. Beatty, 1 Gilm. 454; Pigg v. Corden, 12 Leigh, 69; Millard v. Ramsdell, Harring. Oh. R. 373. Where a party has so far performed his part of a contract, that he cannot be put in statu quo, he is entitled to specific performance, and it is not necessary to show a literal performance on his part, unless such per- formance goes to the essence of the contract. McCarkle v. Brown, 9 S. & M. 167 ; Voorhes v. De Meyer, 2 Barb. Sup. Ct. Rep. 37 ; Shaio v. Livermore, 2 Green, 338. If the bill show that the contract is within the Statute of Frauds, it may be demurred to ; Chambers v. Lecompte, 9 Mis. 575 ; but if the defendant admit the agreement, in his answer, without insisting on the statute, he is presumed to renounce the benefit of the statute. Small v. Owings, 1 Md. Ch. Decis. 363 ; Hollinshead v. McKenzie, 8 Geo. 457 ; Winn v. Albert, 2 Md. Ch. Decis. 169 ; Albert v. Winn, 5 Md. 66. Where specific performance has become impossible, as from a subsequent sale of the sub- ject-matter of it, without notice, courts of equity will not decree a specific perform- ance, though the bill may perhaps be retained for awarding compensation in damages. Woodward v. Harris, 2 Barb. Sup. Ct. R. 439 ; Butlrick v. Holden, 13 Met. 355. Although courts of equity will enforce specifically, contracts relating to person- alty, in many cases, yet they will weigh with greater nicety contracts of this descrip- BILLS FOR SPECIFIC PEEFORMANCB. sirous of selling such premises and the Right Honorable D. Earl of E. being minded to purchase the same your orator and the said D. tion, than such as relate to lands. Mechanics Bank v. Seion, 1 Pet. 299. And if a breach of a contract relating to personal chattels, may be compensated by damages, equity will not, as a general rule, interfere. Cowles v. Whitman, 10 Conn. 121 ; Boy y. Eansborough, 1 Freem. Ch. 533 ; Caldwell v. Myers, Hardin, 551 ; Phillips v. Ber- ger, 2 Barb. Sup. Ct. R. 608 ; Savery v. Spence, 13 Ala. 561 ; Sullivan v. Tuck, 1 Ma- ryland, Ch. Decis. 59; Waters v. Reward, lb. 112 ; Eoundtree v. McLain, 1 Hemp. 245; The Justices v. Croft, 18 Geo. 473. Most of the exceptions, appearing in the Eng- lish cases, are referred to in Fry on Specific Performance, ^ 29. Performance of contracts respecting slaves, has been frequently enforced. Williams v. Howard, 3 Mur. 74; Thompson v. Wilmot, 1 Bibb, 423; Tom v. Desha, i Ham. 373; Fraser v. McClenaghan, 2 Rich. Eq. 79; Graham v. Sam, 7 B. Mon. 403; Fraser v. McClena- ghan, 2 Strobh. Eq. 221 ; Paslay v. Martin, 5 Rich. Eq. 351 ; Reese v. Holmes, lb. 531 ; Skrine v. Walker, 3 Id. 262 ; Summers v. Bean, 13 Gratt. 404. The transfer of stoclc will sometimes not be decreed. Ferguson y . Paschall, 11 Miss. 267. Though a con- tract for insurance, or for the delivery of a policy of insurance by the company, will be enforced, even after a loss. Tayloe v. Merchants Fire Ins. Co., 9 How. (U. S.) 390 ; see Carpenter v. Mutual Safety Ins. Co., 4 Sandf. Ch. R. 408 ; Commercial Mutual Ma- rine Ins. Co. V. Union Mutual Ins. Co., 19 How. (U. S.) 318. An agreement to sing at concerts, will not be specifically enforced. Sanguirico v. Benedetti, 1 Barb. 315. A contract to build a tavern, at joint risk and expense, was enforced, where one of the parties had performed his part of the contract. Birchett y. Boiling, 5 Munf 462. A copartnership agreement, providing for the conveyance of land and the erection of a factory on it, will not be enforced, unless there has been part performance, in ex- pending the money in the erection of the building. Tilman v. .Cannon, 3 Humph. 637. Specific performance of a contract, to indemnify against a pecuniary liability, may be enforced. Chamberlain v. Blue, 6 Blackf. 491. The fact that damages may be recovered at law, is no reason, of itself, why performance should not be decreed ; Washburn v. Dewey, 17 Verm. 92 ; nor is the commencement of a suit at law, of itself, a. bar. Brush v. Vandenbergh, 1 Edw. Ch. 21. Performance may be decreed, in a proper case, where the party has lost his remedy at law. Rogers v. Saunders, 16 Maine, 92. But specific performance of a contract will not be decreed, where the law would not allow damages. Allen v. Beal, 3 A. K. Marsh. 554; see, however, Oetchell v. Jewelt, 3 Greenl. 350. A husband will not be compelled, specifically, to perform an agreement to procure his wife to join him in a conveyance of real estate. Clark V. Sevier, 7 Watts, 107; WeedY. Terry, 2 Doug. 344. And where a wife re- fuses to execute a contract by her husband and herself, to convey her land, he will not be compelled to convey his life estate to the purchaser, and to make compensa- tion for the principal estate. Clark v. Reins, 12 Gratt. 98. The specific perform- ance of a mere voluntary agreement, will not be enforced; Shepherd Y. Shepherd, 1 Maryland, Ch. Decis. 244; Vasser v. Vasser, 23 Miss. 378,-. Boze v. Davis, 14 Texas, 331; a voluntary settlement will, however, be enforced, at the instance of a child, against the heir, if the former have the preferable equity ; Haines v. Haines, 6 Md. 435 ; and it was held, in Read v. Long, 4 Yerg. 68, that a voluntary agreement, if exe- cuted, would be aided in equity. Performance of awards will be enforced, on the ground that such performance is an execution of the agreement of the parties, as fixed by the arbitrators. McNeil v. Magee, 5 Mason, 244 ; Jones Y. Boston Mill Creek Corporation, 4 Pick. 507 ; Cook v. Vick, 2 How. (Miss.) 882. But enforcement of an award for the payment of money has been refused ; Turpin v. Banton, Hardin, 312 ; although where some other specific act is prescribed by the award, its performance will he enforced. Story v. Norwich and Worcester Railroad, 24 Conn. 94 ; See Kirksey v. Fike, 27 Ala. 383. Specific per- formance of an agreement to refer a disputed matter to arbitrators cannot be decreed; Copper V. Wells, Saxton, 10 ; Tobey v. County of Bristol, 3 Story, 800 ; Conner Y. Drake, 1 Ohio State R. 166 ; although it has been held that submission by adult heirs, of an equitable claim to land of which their ancestor died seised, may be enforced. Boyd T. Magruder, 2 Rob. (Va.) 761. The plaintiff cannot have a decree for the performance of a contract set up in the answer, different from that charged in the bill, without amending the bill, so as to insist upon such contract; Byrne v. Romaine, 2 Edw. Ch, 445; for specific perform- ance, cannot be decreed, unless the agreement, as proved, is clearly charged in the pleadings ; Forsyth v. Clark, 3 Wend. 637 ; but a slight variance between the proof and the allegations will not be regarded, especially where the defendants do not pre- 5 The agree- ment for pur- chase. Delivery of abstract. BILLS FOE SPECIFIC PERFOKMANCB. Earl of E. on or about the day of entered into and signed a memorandum of agreement(l) respecting the said sale and pur- chase in the words or to the purport and effect following (that is to say) : [stating the agreement verbatim.'] As by the said memoran- dum of agreement to which your orator craves leave to refer when produced will appear. And your orator further showeth that the said D. Earl of E. paid to your orator the sum of £1500 part of the said purchase-money at the time of signing the said agreement and your orator delivered an abstract of his title to the said premises to the said earl's Stewart or agent ; and your orator hath always been ready and willing to perform his part of the said agreement and on being paid the remainder of his said purchase-money with interest to convey the said messuage to the use of the said D. Earl of E. and his heirs and to let him into possession and receipt of the rents and profits thereof from the time in the said agreement in that behalf mentioned ; and your orator hoped that the said D. Earl of E. would have performed the said agreement on his part as in justice and equity he ought to have done. But now so it is may it please your lordship that the said D. Earl of E.(2) alleges that he is and (1) If a bill for the specific performance of an agreement states that the agreement was in writing, signature must be presumed until the contrary is shown ; Ris t. Eobson, 1 Sim. & Stu. OQ demurrer; and see Spurrier v. Fitzgerald, 6 Tes. 543, 4, 2nd edit. (2) A Peer is never charged with combining with others to deprive the plaintiff of his right, either from respect to the peerage or perhaps from apprehension that such a charge might be construed a breach of privilege. Lord Redesdale's Tr. p. 40. And tend to disprove the agreement alleged, and submit themselves to any agreement which the plaintiff shall establish ; Zone v. Zane, 6 Munf. 406 ; and it has been held, that where some agreement between the parties has been executed, although the allegations in a bill to enforce an agreement, and the proofs, do not correspond, yet the bill will not be dismissed, but the agreement proved will be enforced. Crow v. Blylhe, 3 Hey. 236. In Harris v. Knickerbocker, 5 Wend. 638, it was held, that a bill alleging an agreement to pay the purchase-money in seven years, with interest, was not supported by proof, or an admission, of a contract to pay in seven years, without interest. In King v. Hamilton, 4 Pet. 311, an excess of 876 acres of land was de- creed to be conveyed to the vendee, according to the contract price. This was at the suit of the vendee. In Leigh v. Crump, 1 Ired. Ch. 299, where a contract for the sale- of land described it as containing " 1000 acres more or less," the court refused to de- cree a specific performance by the purchaser, upon proof that the land contained but 600 acres, except upon condition that the vendor would make a proportionate deduc- tion in the price. ' Where the agreement as alleged in the bill, is admitted by the an- swer, the court may decree performance of it by both parties, without a cross bill being filed. Dorsey v. Campbell, 1 Bland. 356. Where the only question on the bill and answer is, whether the vendor can make a good title, the court will direct a re- ference to a master, to ascertain the title, without the consent of the other party. Gentry v. Hamilton, 3 Ired. Oh. 376. The bill, in cases of specific performance, should describe the land with such accuracy as to enable the court to decree a conveyance ; Gray v. Davis, 3 J. J. Marsh. 381 ; and all the parties interested in the claim, and those having the legal title to the land, should be before the court. Rochester v. An- derson, 6 Litt. 143. The complainant should state in his bill the performance of all conditions precedent on his part; Bates v. Wheeler, 1 Scam. 54; but a general alle- gation that he has " done all that he was bound by the contract to do," is insufllcient ; the particular facts which he has performed should be stated, in order that the court may determine whether he has done all that he ought. Davis v. Harrison, 4 Litt. 261. Where, however, the complainant has partially performed the contract on his part, a formal allegation in the bill, that he is ready to complete the performance, is unnecessary. Hatcher v. Hatcher, 1 M'Mullan, Ch. 311. The bill may be shaped so as to obtain specific performance or cancellation of the contract. Mills v. Metcalf, 1 A. K. Marsh. 477. BILLS JOE SPECIFIC tSEFOEMANCB. 9* *always hath been ready and willing to perform the said agreement Defendant on his part in case your orator could have made or can make him a alleges that a good and marketable title to the said messuage and premises.(3) ^°° be'made" But that your orator is not able to make a good title thereto ; whereas your orator charges that he can make a good title to the said messuage and premises. To the end therefore that the said D. Earl of B. may upon his honor(4) true answer make to the matters aforesaid and more particularly that he may answer and set forth in manner aforesaid, Whether, &;c. [Interrogating to the stating and charging parts.^ And that the said D. Earl of E. may be compelled by the decree Prayer for of this honorable court specifically to perform the said agreement specific per- with your orator, and to pay to your orator the remainder of the fo™paymcn° said purchase-money with interest for the same from the time the of the remain- said purchase-money ought to have been paid,(5) your orator being der of the willing and hereby offering specifically to perform the said agree- P"rchase-^^^ ment on his part,(6) and on being paid the said remaining purchase- interest. money and interest to execute a proper conveyance of the said mes- suage and premises to the said D. Earl of E. and to let him into possession of the rent and profits thereof from the said day of . And that your orator may have such further or may have such other relief in the premises as to your lordship shall seem meet and this case may require. May it please, &c. \_Prayer for a let- ter missive to be directed to the said D. Earl of JE. as inform No. 3, p. 6.] the general averment that the acts complained of are contrary to equity is also to be ' omitted. (3) After an answer submitting to perform a contract for a purchase of a good title, can be made, and where the title only is in dispute, a reference to the master will, on motion, be directed to enquire whether a good title can be made, and whether it appears upon the abstract that a good title could be made. Wright y . Bond, 11 Ves. 39; Jennings v. Hopton, 1 Madd. R. 211. And see Morgan v. Shaw, 2 Mer. 138; Birch V. Haynes, Ibid. 444. Withy v. Cottle, I Sim. & Stu. 111. (4) A Peer puts in his answer upon honor; but bis answer to interrogatories and on examination as a witness must be upon oath, see 1 P. Wms. 146; 2 Madd. Ch. Pr. 332. (5) A purchaser is entitled to the profits of the estate from the time fixed upon for completing the contract, whether he does or does not take possession of the estate, and as from that time the money belongs to the vendor, the purchaser will be com- pelled to pay interest for it if it be not paid at the day, see 6 Ves. 143, 352, and Sudg. V. & P. 496, et seq., where the exceptions to this rule are also stated. (6) The plaintiff in equity, if he has not performed his part of the agreement, must not only show that he was in no default in not having performed it, but must also allege that he is still ready to perform it; see 1 Fonb. Tr. Eq. 391, note {(?) ; Sugd. V. & P. 360, 7th edit. BILLS FOR SPECiriC PERFORMANCE. II. Bill ly a vendor for the specific performance of a written agree- ment for purchase of a freehold estate, entered into withhis agent.{l) To, &c. [See form No. l.f Statement of Humbly complaining showeth unto your lordship your orator R. 0. *of, &c. esq. That your orator now is and for some time before the [*10] C?) Where one person enters into an agreement with another for the benefit of a third person, such third person may come into a court of equity and compel a spe- cific performance. Hook v. Kennear, in note, 3 Swanst. 417. ii Specific performance will not be decreed, unless the ability of the vendor to make title, as he has agreed to do, is unquestionable. Garneit v. Macon, 2 Brock. 185; Creigh t. Spatts, 9 W. & S. 82 ; Ley v. Euber, 3 Watts, 367 ; Barilett v. Blanton, 4 J. J. Marsh. 426 j Jarman T. Davis, 4 Monr. 115; Highiower Y. Smith, 5 J. J. Marsh. 542 ; Tomlin v. M'Chord, lb. 135 ; Barneily. Biggins, 4 Dana, 565. In cases of mutual con- tract, he who cannot give title to his own land, cannot have a decree for specific per- formance against the vendee. Morgan v. Morgan, 2 Wheat. 290. A purchaser will not be compelled to take a doubtful title, or one which may involve him in litigation. Butler v. O'Hear, 1 Dessau. 382; Watts v. Waddle, 1 McLean, 200; Bates v. Delavan, 5 Paige, C. R. 299, per Walworth, Ch. But a vendee cannot object to the vendor's title, until he restores possession of the land to the vendor. Gans v. Renshaw, 2 Barr, 34. It is no objection that the land is subject to a reservation of mines, water power, &c., where there is nothing in or upon the land to which the reservation can apply. Winne v. Reynolds, 6 Paige, C. R. 407. The contract will not be enforced where the vendor cannot give such a contract as the purchaser supposed he was con- tracting for, unless it was understood by them that the risk was assumed by the pur- chaser. But a trifling variance in the description of, or a trifling incumbrance upon the property, which may be the subject of compensation, will not prevent specific performance. Winne v. Reynolds, 6 Paige, C. R. 407. A purchaser who refuses to complete the contract on account of an incumbrance on the premises, should state the objection to the vendor, so as to give him an opportunity to remove it. Mc Whorter V. McMahan, 10 Paige, C. B. 386. But specific performance will generally be decreed if the vendor is able to make a good title at any time before a decree is pronounced, if time is not of the essence of the contract. Hepburn Y. Dunlop, 1 Wheat. 179; Dunlopy. Hepburn, 2 Id. 231; Hepburn v. Auld, 5 Cranch, 262; Brown v. Hoff, 5 Paige, C. R. 235 ; Winner. Reynolds, 6 Id. 407 ; Wilson v. Tappan, 6 Ham. 172 ; Sey- mour V. Delancey, 3 Cow. 445 ; Dutch Church v. Mott, 7 Paige, 0. R. 77. The vendor is entitled to specific performance, although he may have a remedy at law by an action for the purchase-money. Phyfe v. Wardell, 5 Paige, C. R. 268. Where the payment of the purchase-money and the giving of the deed are to be concurrent acts, the vendor need not tender a deed before payment or tender of the purchase-money, in order to avail himself of the non-payment by the vendee, in defence of a suit for specific performance. Wells v. Smith, 7 Paige, C. R. 22. The vendor need not exe- cute and tender a deed to the vendee, in order to entitle himself to specific perform- ance, where he is present at the time and place appointed for delivering it, and the vendee declines and refuses to receive a deed. Maxwell v. Pittenger, 2 Green. Ch. 156. And it seems that mere neglect of the vendor to tender a deed, where the vendee is not injured by delay, will not deprive the vendor of his right to specific perform- ance. Woodson V. Scott, 1 Dana, 470. Although upon the vendor's bill, specific per- formance maybe refused, yet he is entitled to relief in respect to the rents and profits, under the general prayer for relief, although the bill contains no special prayer that they be paid him. Walts v. Waddle, 6 Pet. 389. Where specific performance is de- creed, the court, as a general rule, will direct the insertion of the usual covenants of general warranty in the conveyance. Henry v. Liles, 2 Ired. Ch. 407 ; see also, Gil- christ V. Buie, 1 Dev. & Bat. Ch. 346; Myers v. Hiie, 2 A. K. Marsh. 393. Payment of what is due for the land, will be required upon decreeing specific execution of a contract for its conveyance ; Brewer v. Peed, 7 J. J. Marsh. 230 ; but the defendant will not be required by the decree to vary the terms of his contract. Courcier v. Gra- BILLS FOR SPECIFIC PERFORMANCE. 10 year was seised or entitled in fee-simple of or to the freehold messuages or tenements with the lands and other appurtenances thereto belonging situate in, &c. hereinafter described, and your orator being so seised or entitled and being desirous to sell the same did some time before the day of in the year employ and empower J. K of, &c. gentleman to agree on behalf of your orator with any person or persons at and for such price or prices as be should think fit, and accordingly the said J. K. treated with J. M. of S. in the said county of S. gentleman (the defendant hereinafter named) for the sale of such messuages tenements and hereditaments Agreement unto him the said J. M. and at length they came to an agreement for purchase for such purchase and thereupon articles of agreement in writing ^°twi(i'in!.° bearing date the day of and made between the said J. K. tiff's agent. on behalf of your orator of the one part and the said J. M. of the other part were duly executed by the said J. K. and J. M. whereby the said J. K. in consideration of the sum of £ to be paid as therein and hereinafter mentioned agreed that your orator or his heirs should or would on or before the day of then next to the satisfaction of the said J. M. or of his heirs and of his or their counsel make out a good title to the premises hereinafter mentioned and by good and suflScient conveyances surrenders and assurances in the law with reasonable covenants such as the counsel of the said J. M. should advise convey and assure or cause to be conveyed and assured unto the said J. M. and his heirs as he or they should ap- point free from all incumbrances (except a perpetual drainage tax charged upon the premises or some part thereof) and particularly a good estate of inheritance of in and to all that messuage, &c. [de- scribing the premises] and in consideration thereof the said J. M. did thereby covenant and agree with the said J. K. that he the said J. M. would pay or cause to be paid to your orator his heirs execu- tors or administrators the said sum of £ immediately upon the executing of such conveyance as aforesaid ; and it was thereby mu- tually agreed that your orator or his heirs should be at the expense of making a good title to the said premises and that the said J. M. should be at the expense of the conveyances and assurances to be made thereof to him as aforesaid and that the said J. M. should have the rents and profits of the said premises from the said of provided the purchase of the said premises should be com- pleted on or before that day, but not otherwise. As in and by the said articles of agreement to which your orator craves leave to refer when produced reference being thereto had will more fully appear. And your orator further showeth unto your lordship that in con- Delivery of sequence of the said articles of agreement, and in order to the per- abstract. formance thereof on the part of your orator, who hath been ever ham, 2 Ham, 325. The purchaser will not be compelled to take only a part of the land for which he bargained, although he has a right to insist that the vendor shall perform the contract so far as he is able, and make compensation in damages for the breach of that part of it which he cannot perform, ^fihon v. Brumfield, 8 Blackf. 146; Cunningham v. Sharp, 11 Humph. 116. Where a part only, of several vendors, had become bound to make a good and sufficient title, it was held that there was a want of mutuality in the contract, and specific execution of it wag refused. Branson V. Cahill, 4 McLean, 19. 10 BILLS FOR SPECIFIC PERFORMANCE. [*11] The title ap- proved of by defendant's counsel. Applications. Pretence that defendant did not execute the articles of agreement or that plaintiff cannot make out a good title. Charge the contrary. Prayer. since willing to perform the same, an abstract of the title to the said estate was on your orator's behalf shortly after the date of the said articles of agreement sent unto the attorney concerned for the said J. M. for his persual, together with all and most of the deeds men- tioned in such abstract for the inspection of such attorney or of the counsel of the said J. M. and several objections having been from *time to time made to your orator's title to the said estate by the counsel or conveyancer before whom such abstract was laid, by or on behalf of the said J. M. all such objections were long since answered or cleared up to the satisfaction of such counsel or con- veyancer who long since by writing under his hand or otherwise ap- proved of your said orator's title to the said messuages and premises wherefore the said J. M. ought long since to have paid to your orator the sum of £ on having a proper conveyance of the said messuages and premises according to the said articles of agreement and upon having possession of the said messuages and premises delivered unto him. And your orator hath at several times since your orator's title to the saiS messuages and premises was so ap- proved in and by letters and by your orator's agent in a friendly manner applied unto the said J. M. and informed him of your ora- tor's readiness to make and execute a proper conveyance of the said messuages and premises on payment of the said sum of £ and therefore requested the said J. M. to pay unto your orator the said sum of £ and your orator well hoped that such his request would have been complied with. But now so it is may it please your lordship that the said J. M. combining and confederating with divers persons, &c. [see form IV. p. 5.] And the said J. M. sometimes pretends that he did not execute any such or the like a,rticles of agreement as aforesaid or that your orator cannot make out a good title to the messuages or tenements lands and hereditaments or not to all the parts thereof, or that your orator hath not made out such title to the satisfaction of him or his counsel or conveyancer. Whereas your orator charges the contrary of all such pretences to be true but nevertheless under such and the like pretences as afore- said or some other equally unjust the said J. M. refuses to perform the said articles of agreement on his part. All which actings, &c. \_Seeform VI. p. 5, interrogating to the stating and charging parts.'\ And that the said articles of agreement dated the day of may be specifically performed and carried into execution by the said J. M. your orator hereby oifering to perform the same on his part, and that the said J. M. may pay unto your orator the said sum of £ your orator offering thereon to convey the said messuages tenements lands and hereditaments unto the said J. M. And that your orator may have such further or other relief in the premises as to your lordship shall seem just and proper. May it please, &c. \_Seeform, No. 1, p. 6.] Pray subpoena against J. M. BILLS FOR SPECIFIC PERFORMANCE. *12 *III. Bill by a purchaser against vendor for specific performance of a contract for sale of a freehold estate — charging that the pur- chase-money has remained unproductive in the plaintiff's hands.(S) — The estate had been previously put up to sale by public auction and bought in, and the description in the agreement referred to the particulars of sale. {^)° — {The interrogatories are inserted.) To, &c. Humbly complaining showeth unto your lordship your orator Statement H. A. of, &c. esq. That S. B. &c. esq. being or pretending to *^t waf^ge^s- ed in fee. (8) Notice to tlie vendor is essential; see Powell v. Martyr, 8 Ves. 145; Winter t. Blades, 2 Sim. & Stu. 393. (9) If a bill is filed against several purchasers of different lots at a sale by auction, they may demur for multifariousness, Brookes v. Lord Whitworth, 1 Madd. Rep. 88 ; Eeyner v. Julian, 2 Dick. 677, stated more fully in note (b), 5 Madd. 144. " Specific performance will not be enforced where the vendor is prevented from per- forming his agreement by reason of his wife's refusal to join in the deed. Clark v. Seiver, 7 Watts, 107 ; and see Weed v. Terry, 2 Doug. 344. Where the vendue has made the first payment according to the contract, and tendered the balance of the purchase-money, and the vendor is in default for not tendering conveyances, the complainant is not bound to bring the money into court. Jolinson Y.Stukley, 2 McLean, 562. The purchaser, to entitle himself to specific performance, must have paid the purchase-money due on the contract, or he must offer by his bill to do so ; Oliver v. Dix, 1 Dev. & Bat. Ch. 605; Allison v. Clark, Breese, 273 ; and he must follow up the tender by bringing the money into court. Doyle v. Teas, 4 Scam. 202. It is not sufficient excuse for not tendering the purchase-money of land by the vendee, that the vendor had conveyed the land to another, when the same became payable. Doyle v. Teas, 4 Scam. 202. But where the vendee is prevented by the vendor from paying the price, the latter cannot set up the failure of the former, in order to defeat a specific performance. Bass v. Gilliland, 5 Ala. 761. In this case it was held, that the bill of the vendee must allege a tender of the purchase-money when it became due, and a continued readiness to pay it since, and offer to bring the same into court ; and that an offer to bring the money into court, as the chancellor may direct, is sufficient to authorize him to entertain and decree upon the bill. Where the complainant is not bound to perform his part of the contract until the complainant has conveyed, he may enforce specific performance. Mitchell v. Long, 5 Litt. 71. The assignee of a bond for the conveyance of land, the deed to be executed when the consideration should be paid by the assignor, brought a bill for specific performance, but the bill did not allege payment of the consideration, and it was therefore held to be defective. Passmore v. Moore, 1 J.J. Marsh. 591. A bill by the vendee may be maintained against the heirs of the vendor ; Newton v. Swazey, 8 N. H. 9 ; Suydam v. Martin, Wright, 384 ; Jacobs V. Locke, 2 Ired. Ch. 286 ; Olaze v. Drayton, 1 Dessau. 109 ; Trabue v. North, 2 A. K. Marsh. 361 ; Saunders v. Simpson, 2 Har. & J. 81 ; all the co-heirs of the de- ceased vendor should be made parties to the bill, and the death of one of the parties should be proved, to excuse his omission as a party ; Morgan v. Morgan, 2 Wheat. 290 ; and a bill may also be sustained against a subsequent purchaser from the vendor, with notice of the prior sale ; New Barbadoes Toll Bridge v. Vreeland, 3 Green. Ch. 157; but not where the subsequent purchase is bond fide, and without notice. Doar V. Oibbes, 1 Bailey, Ch. 371; Hines v. Baine, 1 S. &M. Ch. 530 ; Hawthorn v. Bronson, 16 S. & R. 269. The vendor cannot protect himself, against a bill filed by the vendee, on the ground that he has conveyed away portions of the land, thus rendering specific performance in toto impossible, if the vendee consents to receive what remains of the land, though such conveyances were made with the consent of the vendee. Waters v. Travis, 9 Johns. R. 450. A vendee may insist upon specific performance by the vendor, so far as the latter can execute the contract. Jacobs v. Lake, 2 Ired. Oh. 286 ; Senry v. Liles, lb. 407 ; see also, Weatherford v. James, 2 Ala. 170 ; Bass v. Oil- liland, 5 Id. 761; Jones v. Shackleford, 2 Bibb, 410; McKean v. Read, 6 Litt. 395. Where the heir of the vendor was a lunatic, his committee was directed to execute 12 That the es- tate was put up to sale. That the es- tate was bought in. Treaty for purchase by private con- tract. Agreement entered into. Payment of deposit. Possession delivered to plaintiff. BILLS FOR SPECIFIC PERFORMANCE. be seised and possessed of or otherwise well entitled unto the free- hold messuage or tenement with the out-buildings pleasure ground pasture land and other the appurtenances thereunto adjoining or belonging situate at, &c. and hereinafter mentioned and the inherit- ance in fee-simple thereof did on or about the day of cause all the said estate and hereditaments to be put up to sale by- public auction by Mr. W. auctioneer at in three lots pursuant to printed particulars and conditions of sale previously advertised and published. And your orator further showeth that the said pre- mises were bought in by the said S. B. at the time of the said sale, and that in about the month of April then next ensuing your orator entered into a treaty with the said S. B. for the absolute purchase of the same estate and premises together with the timber and other trees fixtures and other eflFects in and about the same discharged from all imcumbrances at or for the price or sum of £2900. And your orator further showeth unto your lordship that the said S. B. agreed to accept the said sum of £2900 as the consideration for the said estate and premises, and thereupon an agreement in writing was entered into and signed by the respective solicitors for and on behalf of your orator and the said S. B. respecting such sale and purchase in the words and figures or to the purport and effect following (that is to say ;) [stating the agreement verbatim.'] As by the said agree- ment to which your orator craves leave to refer when the same shall be produced will appear. And your orator further showeth that previously to the signing of the said agreement your orator paid unto the said S. B. the sum of £500 as a deposit and in part of his said purchase-money or sum of £2900 ; and the said S. B. hath since delivered up possession of the said purchased premises to your orator. And your orator further showeth unto your lordship that he hath always been ready and willing to perform his part of the said agreement and on having a good and marketable title shown to the said estate and premises and a conveyance of the fee simple thereof discharged of all incumbrances made to him to pay the residue of the said purchase-money or sum of £2900 to the said S. B. And your orator hoped that the said S. B. would have spe- the necessary conveyances. Swartwout v. Barr, 1 Barb. 495. A contract to convey a quantity of any land which the vendor may own, will not be specifically enforced, as specific performance is decreed only where a specific thing is agreed to be con- veyed. Shelton v. Church, 10 Miss. 11i. So a bill for the enforcement of a contract to settle on the complainant " a plantation and permanent home for life," must dis- tinctly set forth what land, where situate, the number of acres, &c. Mallory v. Mal^ lory, 1 Busbee, Eq. 80 ; see also. Church of the Advent v. Farrow, 7 Rich. Eq. 3T8. So if the description of the land is so vague that its location cannot be determined with- out parol proof, and there is no reference to any other description, a conveyance will not be decreed. Jordan v. Fay, 40 Maine, 130. A contract for the sale of land, in which the vendor was to take in part payment a house and lot of the vendee, at its cash value, to be fixed by two persons ; and the parties agreed to appoint such per- sons, but not within any specified time, and never did so, is too incomplete to be en- forced in equity. Baker v. Glass, 6 Munf 212. Where, by the agreement, the price of the land was to be ascertained and fixed by the parties, and one of them died be- fore the price had been fixed by them, the contract was held to be too incomplete to be enforced in equity. Graham v. Ca.ll, 5 Munf. 396. Specific performance of a con- tract for the conveyance of land, situate in another State, may be decreed, if the de- fendant is within the jurisdiction of the court. Sutphen v. Fowler, 9 Paige, C. E. 280 ; Orr V. Irwin, 2 Car. L. R. 465. BILLS FOR SPECIFIC PERFORMANCE. *13 *cifically performed his part of said agreement as in justice and equity he ought. But now so it is, &c. {see form IV. p. 6,) the said S. B. refuses to perform his part of the said agreement, and to color such refusal he gives out and pretends that he is unable to make out a Pretence that good and marketable title to the said estate and premises and that ''^^°^ ^^1^,1 he is willing to cancel the said contract or agreement and to repay ^^^ ^ market- the said deposit or sum of £500 to your orator. Whereas your ora- able title. tor charges that the said S. B. is able to make out a good and mar- Charge the ketable title to the said estate and premises if he thinks proper so to contrary. do, but that the said S. B. refuses and declines to make out a good and marketable title to the said premises notwithstanding your orator hath required him so to. do and offered to pay him the residue of the purchase-money upon having the title made out and a proper con- veyance of the said premises executed to your orator his heirs and assigns by the said S. B. And your orator charges that the whole And that the of the residue of his purchase money of the premises hath been ready residue of the and unproductive in his hands for completing the said purchase from ney\arre™°' the time it ought to have been completed by the terms of the said mained un- agreement. All which actings refusals and pretences, &c. &c. [see productive. form VI. p. 6,] and more especially that the said S. B. may in man- ner aforesaid answer and set forth. Whether he was not seised and possessed of or otherwise well entitled Interrogato- unto the said freehold messuage or tenement with the out-buildings "®^- pleasure grounds pasture lands and other the appurtenances thereto adjoining or belonging and the inheritance in fee-simple thereof; And whether being so seised and entitled as aforesaid he did not at the time hereinbefore in that behalf mentioned or at some other and what time cause all the said estate and hereditaments to be put up to sale by public auction by the said Mr. W. at in three lots pursuant to printed particulars and conditions of sale previously advertised and published thereof; And whether the said premises were not bought in by him the said defendant at the time of the said sale or how otherwise ; And whether your orator did not in or about the said month of April or when else enter into a treaty with the said defendant for the absolute purchase of the same estate and premises together with the timber and other trees fixtures and other effects in and about the same discharged from all incumbrances at or for the price or sum of £2900 or at some other and what price; And whether the said defendant did not agree to accept the said sum of £2900 as the consideration for the said estate and premises ; And whether thereupon such agreement in writing of such date or of or to such purport and effect as hereinbefore in that behalf mentioned was not duly entered into and signed by the respective solicitors for your orator and the said defendant in the name and on the behalf of your orator and the said defendant or how otherwise ; And whether your orator did not previously to the signing of the said agreement pay the said defendant the sum of £500 as a deposit and in part of his said purchase-money or sum of £2900 ; And whether the said defendant hath not since delivered up possession of the said pur- chased premises to your orator ; And whether your orator hath not always been ready *and willing to perform his part of the said agree- [ *14 ] 14 BILLS FOR SPECIFIC PERFORMANCE. ment, and on having a good and marketable title shown to the said estate and premises and a conveyance of the fee simple thereof dis- charged of all incumbrances made to him to pay the residue of the said purchase-money or sum of J2900 to the said defendant ; And whether the said defendant doth not and why refuse to perform his part of the said agreement ; And whether the said defendant is not able to make a good and marketable title to the said estate and pre- mises and if not why not ; And whether he doth not and why decline or refuse to make a good and marketable title to the said premises ; And whether your orator hath not required him so to do and made such offer to him as in that behalf aforesaid or to that or the like or some and what other purport or effect ; And whether the whole of the residue of the purchase-money of the said premises hath not been ready and unproductive in the hands of your orator for com- pleting the said purchase from the time the same ought to have been completed by the terms of the said agreement or from some and what other time. And that the said defendant may be decreed spe- cifically to perform the said agreement entered into with your orator as aforesaid and to make a good and marketable title to the said premises your orator being ready and willing and hereby offering spe- cifically to perform the said agreement on his part, and upon the said defendant's making out a good and marketable title to the aforesaid estate and premises and executing a proper conveyance thereof to your orator pursuant to the terms of the said agreement to pay to the said defendant the residue of the said purchase-money or sum of £2900. And that your orator may have such further and other re- lief in the premises as to your lordship shall seem meet and the na- ture of this case may require. May it please, &c. [^See form No. 1, p. 6.] Pray subpoena against S. B. IV. Bill ly first vendee against vendor and a subsequent purchaser from Mm, for the specific performance of an agreement entered into by the vendor with the plaintiff for the sale of a copyhold estate, charging the subsequent purchaser with notice, an^ praying that he may surrender the estate to the plaintiff, or (in the alternative) if he had no notice, then that the vendor may account for the dif- ference in price. Praying also for an injunction to restrain the defendants from bringing an ejectment. To, &c. Humbly complaining showeth unto your lordship your orator A. B. of, &c. That J. D. of, &c. one of the defendants hereinafter named was in and before the month of seised to him and his heirs according to the custom of the manor of E. in the county of of a messuage, &c. And your orator further showeth that r *15 1 **^® ^^^^ J- ^- I'eing desirous to dispose of the said hereditaments entered into an agreement with your orator for the sale thereof to him and which agreement was reduced into writing and signed by BILLS FOR SPECIJIC PJBRFOEMANCE. 15 the said defendant J. D. and your orator and is in the words and The agree- figures or to the purport and effect following (that is to say) : Istat- ™«°* ^°'^ ^^^®- ing the agreement verbatim] As hy the said memorandum of agree- ment when produced will appear. And your orator further showeth Plaintiff's ap- unto your lordship that the said J. D. referred your orator to one V. plication to a laborer who had long lived near the spot as a person who well knew boundaries. the boundaries of the freehold and copyhold part of the fiteld out of which the said house and premise had been taken and the said J. D. expressed himself to be ready to abide by the opinion of the said V. in that respect. And your orator further showeth that he accord- ingly applied to the said V. for his opinion in that behalf and the said V. thereupon informed your orator that the said house and pre- mises agreed to be purchased by your orator and which were in the north-east part of the field were wholly copyhold and that the free- hold lay on the south side of the field. And your orator further Plaintiff offer- showeth unto your lordship that in the said month of and be- ^d to pay the fore the day fixed for completing the said agreement your orator P^^" ase-mo- called upon the said J. D. and offered to pay to him the said purchase- money for the said house and premises and then requested the said J. D. to accompany your orator to the steward of the said manor in order to make the surrender of the said premises but the said defen- dant then pretended that he must make further inquiry with respect to the said premises before he completed the said agreement. And the said J. D. frequently afterwards desired your orator not to be in a hurry about the business and that if your orator waited till the lease was out the said J. D. would let your orator have the field ad- joining to the house. And your orator further showeth that he hath Applications repeatedly applied to the said J. D. and hath requested him specifi- t° vendor for cally to perform his aforesaid contract. And your orator well hoped foj^ance.*'^" that the said defendant J. D. would have complied with such your orator's reasonable requests as in justice and equity he ought to have done. But now so it is may it please your lordship that the said J. D. combining and confederating to and with T. R. 0. of, &c. \_see form IV. p. 5,] absolutely refuses so to do and the said J. D. hath since actually sold the said messuage and premises to the said defendant T. R. C. at an advanced price and hath surrendered the same to the use of the said T. R. C. his heirs and assigns and the said T. R. C. hath been admitted upon such surrender. And the Pretence by said defendant J. D. sometimes pretends that the said messuage and t^e estate was premises were partly freehold, and that therefore the said defendant partly free- was discharged from his said agreement with your orator. Whereas hold, and that your orator expressly charges the contrary thereof to be the tJUth. lie'sdischarg- And as further evidence thereof your orator charges that the surren- agreement. der made by the said J. D. to the said T. R. C. comprises by descrip- charge that tion and according to the dimensions therein expressed, the whole the estate sold of the said messuage and premises so agreed to be sold to your ora- *° *^ plaintiff tor, and that the same were sold by the said J. D. to the said T. R. cojyhold. C. as wholly copyhold and were no ^otherwise conveyed or assigned r ^j^g -i to him than by the said surrender. And your orator further charges, that before the said surrender was made by the said J. D. to the use Charge of no- of the said T. R. C. as aforesaid and before the said T. R. 0. paid ti^e to the 16 BILLS FOR SPECIFIC PERFOKMANCB. subsequent purchaser. Evidence in support of such charge. Charge that the subse- quentpurcha^ ser is in some way indemni- fied. Prayer. Amendment upon the com- ing in of the answer. Ms purchase-money for the same if he has ia fact paid such pur- chase-money the said T. R. C. had some notice or intimation, or some reason to suspect or believe that he the said J. D. had entered into an agreement with your orator for the sale of the said premises to your orator, and in particular your orator charges that the said T. R. C. carries on the business of a brewer, in copartnership with W. and H. Snd that the said W. and H. were both informed by your orator of his said agreement, and your orator actually delivered the said agreement to the said H. previously to the said surrender to the said T. R. C. or to the payment of his purchase-money, and the said W. and H. or one of them acted as the agent or agents of the said T. R. C. in the treaty with the said J. D. or were in some manner employed or took some part therein on the behalf of the said T. R. C. And the said W. and H. or one of them, gave some information or intimation to the said T. R. C. respecting the agreement made by your orator with the said J. D. And the said W. and H. as the partners of the said T. R. C. have some right or interest in the said premises, although the surrender thereof was made as aforesaid to the said T. R. C. alone. And your orator further charges that the said J. D. hath in some manner indemnified or undertaken to indem- nify the said T. R. C. against the claims of your orator in respect of his said agreement, or there is some undertaking between the said J. D. and the said T. R. C. that the said T. R. C. is to be indemni- fied against such claim. All which actings, &c. l^seeform VI. p. 5, interrogating to the stating and charging parts-l And that the said defendants may answer the premises ; and that the said agree- ment so made between your orator and the said J. D. as aforesaid may be specifically performed, and that the said T. R. C. may be decreed to surrender the said messuage and premises to your orator and his heirs, your orator being ready and willing and hereby offer- ing specifically to perform the said agreement in all things on his part and behalf. £0r if it should appear that the said T. R. 0. is a pur- chaser without notice of the said agreement between your orator and the said J. D. then that the said J. D. may account for and pay to your orator the difference between the price stipulated in the said agreement and the sum at which he sold the same to the said T. R. C] And that the said defendants may in the mean time be re- strained from bringing any action of ejectment against your orator in order to turn him out of possession of the said premises. [^And for further relief, see form VIII. ^. 5.] May it please, &c. \_Fray suhpoena and injunction against J. B. and T. B. 0. see forms No. 1, and 4, p. 6.] J. N. B. That part between crotchets is an amendment upon the com- ing in of the answer, in case it should not he made out in evidence that Q. hy himself or his agents had notice. BILLS FOR SPECIFIC PERFORMANCE. *17 *V. Bill hy first vendee against vendor and a subsequent purchaser from him for the specific performance of an agreement entered into by the plaintiff's agent{\.b) with the vendor, for the purchase of a freehold estate at a sale by auction. — Charging the subsequent purchaser with notice, and also charging the vendor with acts of waste. — Prayer for an injunction against both defendants to restrain waste. To, &c. Humbly complaining showethunto your lordship your orator B. R. of, &c. That G. K. of, &c. farmer the defendant hereinafter named ■was or pretended to be in and before the month of seised of or well entitled to a freehold estate of inheritance consisting of, &c. and then in the occupation of the said Gr. K. and that the said G. K. on or about the day of caused the said estate and premises to be put up to sale by public auction by a Mr. S. an auc- tioneer in one lot. And your orator further showeth that your Sale by anc- orator employed one A. B. to attend at the said sale as a bidder on *ion, and the behalf of your orator, and that the said A. B. became and was g°j°'^'"°°^ °^ declared to be the best bidder and purchaser of the said estate at or for the price or sum of £ , and that by the 4th article of the printed conditions of the said sale it was expressed that the pur- chaser should immediately after the sale pay into the hands of the proprietor's attorney a deposit of £ per cent, in part of the purchase-money, and sign an agreement for payment of the re- mainder on or before the of next and now past. And that by the 5th article of the said conditions of sale it was expressed that a good title should be made to the said premises at the vendor's expense whose attorney would make out the necessary conveyances which were to be approved of by the purchaser's attorney on or before the day of last, such purchaser paying towards such conveyances, the sum of £ . And your orator further Agreement by showeth that the said A. B. not being prepared to pay the whole of ^^"5*"^ *°,^''; C6Dt 9j T)£irtj 01 the deposit according to the said conditions of sale, the said G. K. tije deposit. consented to accept the sum of £ in part thereof and to wait for the remainder, and thereupon an agreement was written at the foot of one of the printed particulars, and signed by the said de- fendant G. K. and the said A. B. in the words and figures or -to the purport and effect following (that is to say:) [^stating the agreement verbatim, ratifying the purchase stating the payment of £ — , and an agreement to pay the remainder.^ And your orator further showeth that the said A. B. afterwards on the day of signed a memorandum at the foot of the said agreement to the pur- port or effect following (that is to say ) " I the before-mentioned A. B. do hereby acknowledge that 1 have purchased the before-men- tioned estate by the order and for the use of B. R. of ." As in and by, &c. And your orator further showeth that shortly after- (10) See note (1), ante, p. 9. *18 BILLS FOK SPECIFIC PERFORMANCE. Tender and *warcls the Said A. B. by the direction of your orator tendered or payment of offered to pay to J. P. of who acted as the attorney of the said the remain- ^ j^ .^^ ^^^ ^^^^ ^^-^^ ^-^^ ^^^ ^^ ^ j^ f^jj f^^ ^^^ deposit-money on the said purchase, and the said J. F. thereupon desired the said A. B. to pay the same into Mr. L.'s bank until he procured a proper receipt for it, and the said A. B. accordingly paid the sum of £ into Mr. L.'s bank on the day of the said month of where it has ever since remained. And your orator further showeth that the abstract of the title to the said premises not having been deli- vered to your orator or to any person on his part, your orator on the day of caused a tender to be made of the said sum of £ to the said defendant G. K. and also to the said J. F. by Mr. G. who at the same time served each of them with a notice in writing in the words and figures or to the effect following (that is to say :) " Sir, I do," &c. [tendering the remainder of the deposit-money, and desiring the defendant Gr. K. to fulfil the contract and cautioning him not to cut timber or commit waste.] As in and by, &c. And your orator further showeth that the said Mr. F. the attorney of the said defendant upon being served with the said notice signed an acknowledgment in the words and figures or to the effect following (that is to say:) [acknowledging the receipt of the deposit-money.'] As in and by the said notice and acknowledgment which or one of which are or is now in the custody or power of the said defendant. Delivery ofab- when produced will appear. And your orator further showeth that stract. the said J. F. sent an abstract of the title of the said defendant to the said premises to Mr. E. the solicitor of your orator accompanied with a letter written by Mr. B. the clerk of the said J. F. and bear- ing date the day of which was in the words or to the effect following (that is to say :) [requesting the abstract and draft convey- ance to be returned as soon as possible to complete the business.] And your orator further showeth that on the day of the said month of the said Mr. E. sent an answer to the said J. F. in the words or to the effect following (that is to say :) [acknowledging the receipt of last letter, and stating that it should be effected as quick as possible and warning defendant Gr. K. from committing Objections ta- waste.] And your orator further showeth that, &c. [Bill further ken to the title, states that many queries were made upon the abstract by the counsel before whom the same was laid, occasioned by former inaccuracies and misconceptions relative to the assignments of various outstand- ing terms affecting the said premises, and that it also appeared by the said abstract that many of the title-deeds of the said premises had not been entered with the register of the Bedford level as by law they were required to be, said premises being adventure land and part of the said level.] And your orator further showeth that some Verbal agree- time was therefore necessarily consumed in correspondence between ment between the solicitors of your orator and the said G. K. as to these points vendor to°en- ^^^ *^** °^ *^^ *^*7 °^ ^ meeting was had between the large the time Said G. K. and your orator and their respective solicitors when it was forcompieting verbally agreed between your orator and the said G. K. that as the purchase, ^jjgre was no hope that the corporation of the Bedford level would [ *19 J obtain an act of parliament to supply the *defect of registration BILLS FOR SPECIFIC PERFORMANCE. 19 which was supposed to exist to a great extent the time for complet- ing your orator's purchase should be enlarged until the day of but if the difiBculties in the title of the said Gr. K. should be removed before that time then your orator should sooner complete his purchase and the said G. K. should in the meantime manage the farm according to an agreement to be entered into for that purpose. And your orator fiirther showeth that in the course of conversation at the said meeting your orator learnt that the aforesaid abstract which had been delivered to your orator's solicitor had not been taade out and examined by the said J. F. but had been received by him from Messrs. M. and S. who were solicitors to a Mr. R. to whom the said premises were in mortgage. And your orator further showeth that after Mr. B. on the part of your orator had prepared the draft of an instrument in writing for carrying into effect the verbal agreement made at the aforesaid meeting the said Mr. E. received a letter written by A. B. the clerk of the said Mr. F. and bearing date the day of in the words or to the effect fol- lowing (that is to say:) "I saw Mr. S." &c., {stating the defect of the title and writing for a copy of case and opinion to send Mr. S.'\ And your orator further showeth that the said Mr. E. accordingly sent by the return of post a copy of the case and opinion required and on the day of the said Mr. E. received another letter from the said A. B. in the words or to the effect following (that is to say:) "K. and R. on the other side, &c." [to hnow if plaintiff would accept the title offered, if not they had another purchaser.) And your orator further showeth that the copy of Mr. M.'s letter con- tained in the said last mentioned letter from the said A. B. was in the words or to the effect following (that is to say :) " I am, &c." [enquir- ing when the money would he paid, and expressing a determination to proceed in equity and hy ejecttnent if not paid.) And your orator Several objeo- further showeth that upon receipt of the said last-mentioned letter t.'°°s to the the said Mr. E. applied to the said Messrs. M. and S. for permission ^p „po^„'' ex- to compare the abstract of the title with the title-deeds and upon amining the such comparison it appeared that the person who had prepared the abstract with abstract had omitted the note of registry to many of the deeds and tl^e title deeds. that there were also several other omissions and misrecitals in the abstract the correction of which removed some of the other doubts that had arisen. And your orator further showeth that the said Mr. E. caused the said amended abstract to be laid immediately before counsel and although it still appeared that two or three deeds were unregistered and that some difficulty and expense would be occasioned in getting in the outstanding terms and in rectifying the errors that had been made in former assignments of them, yet in order to end the business your orator determined to accept the title as it Plaintiff a- stood and to take upon himself the expense of getting in the out- f^g\^it°g^°**P* standing terms ; and thereupon on the day of the said Mr. B. by the instruction of your orator wrote a letter to the said J. F. in the words and figures or to the purport and effect following (that is to say): "I am happy," &c. [stating that plaintiff was ready to complete the purchase as the title stood.l And your orator further showeth that on the day of the same month of the *20 BILLS FOK SPECIFIC PBBFORMANCE. *said Mr. E. sent the draft of the proposed conveyance to the said Mr. F. accompanied with a letter in the words and figures or to the purport and effect following (that is to say :) [stating that he sent the draft of conveyance advised upon hy counsel instead of the one drawn hy defendant's attorney requesting it to he engrossed immediately and stating that no delay is attributable to plaiiitiff in the completion of the business.li And your orator further showeth that the said Mr. E. not having received any answer to the said last-mentioned letter again wrote to the said Mr. F. in the words or to the effect fol- lowing (that is to say :) [expressing plaintiff's anxiety to complete the business."^ And your orator further showeth that on the day of the said Mr. F. received a letter from the said A. B. the clerk of the said Mr; F. in the words or to the effect following (that Defendant re- is to Say :) [stating that defendant would not complete the con- fuses to com- tract on the ground that the deposit was not paid at the time men- plete. tioned in the particulars of sale.'\ And your orator further showeth Applications. ^-^^^^ j^g j^g^^j^ gjjjpg ^^ himself and his agents repeatedly applied to the said Gr. K. and requested him specifically to perform the agree- ment so made and entered into by him as aforesaid with the said A. B. the agent of your orator. And your orator hoped the said Gr. K. would have complied with such your orator's reasonable requests as in justice and equity he ought to have done. But now so it Charges that IS, &c. [see form IV. p. 5.] And your orator charges that the said Gr. vendor has K. hath since contracted for the sale of the said premises to the said sold and con- rp^ p_ ^^ g^jj advanced price and hath actually conveyed the said pre- tate to his co- mises or entered into an agreement to convey the same to the said defendant, T. P. or to some Other person or persons by his order or to his use who or whose qj. Jq trust for him. And your orator charges that the said T. P. at t^e"of the '^°' *h^ *™® ^^ entered into the said contract for the purchase of the said plaintiffs con- premises or at the time of the conveyance thereof to him if the same tract. Jiave been conveyed to him or at the time of the payment of the purchase-money for the same if he hath actually paid such purchase- money well knew or had been informed or had received some intima- tion or had some reason to believe or suspect that the said G. K. had entered into such agreement as aforesaid with the said A, B. or into some agreement with your orator or with some person on his behalf for the sale of the said premises to your orator. And the said T. P. or the agent employed by him in the said purchase or contract had at some or one of the times aforesaid some knowledge or intimation of the several circumstances aforesaid respecting the said premises which had passed between your orator and the said G. Charge that K. or their solicitors. And your orator charges that the said J. F. the solicitor ^3,8 in fact the agent employed in the contract or sale by the said bothdefe'n- '° ^* ^- ^^ *^® ^^^^ ^- ^- ^^ ^^^^ °^ ^^^ V^^^ of ^^^ Said Gr. K. as of dants. the said T. P. And your orator further charges that if in fact the That vendor Said T. P. has paid the purchase-money for the said premises or any has given his part thereof to the said G. K. the said T. P. has had or taken some anindemnu' ij^'^^^'iity fi"OJ^ ^^^ Said G. K. or some other person in respect of That vendor'''' such payment or of such purchase. And your orator further charges sold the hay that after your orator by the said A. B. had entered into such agree- on the farm mgn^ yf\^]^ ^he Said G. K. as aforesaid and after the hay season of BILLS FOR SPECIFIC PERFORMANCE. *21 *this year your orator verbally agreed with the said G. K. that the contrary to his hay on the farm should be left by the said G. K. and taken by your ^^j^T^^fj^j^ orator at an appraisement but the said G. K. hath nevertheless sold ^^. ^^^ ^'" and removed the said hay from the farm to the great injury thereof and the said G. K. hath since his said agreement with the said A. B. ploughed up more than sixty acres of land which according to the usual course of husbandry ought to have been laid down with grass. And the said G. K. hath also since cut down many timber and and commit- other trees upon the said premises and hath committed and done '^^ ^cts of other waste and injury thereto. And the said G. K. and also the ^^^*^- said T. P. threaten and intend to cut down other trees on and from the said premises and to commit other waste and injury thereto. All which actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts.^ And that the said defendants may answer the Prayer. premises. And that the said defendant G. K. may specifically per- form the said agreement so made and entered into by him as aforesaid with the said A. B. as the agent of your orator, your orator being ready and willing and hereby offering specifically to perform the said agreement in all things on his part and behalf. And that the said G. K. may be decreed to make compensation to your orator for the waste and other damage done by him to the said premises since the making of the said agreement. And that in the mean time the said defendants G. K. and T. P. may be restrained by the order and injunc- tion of this honorable court from cutting down any timber or other trees upon the said premises or from committing any other waste thereon. [And for further relief, see form VIII. p. 5.] May it please, &c. [Pray subpoena and injunction against G-. K. and T. p. See forms No. 1, and 5, p. 6 and 7.] J. L. VI. Bill to compel the execution of a lease hy the defendant, whose agent had entered into an agreement to grant a lease to the plain- tiff, the widow of a former lessee, and her co-plaintiff as her surety {the old lease having been granted by the father of the defendant.) The agreement constituted by letters between the parties, and con- firmed by the defendant. (11) To, fee." Humbly complaining show unto your lordship your oratrix and J. G- formerly orator M. G. of, &c. widow and I. J. of, &c. That I. G. the late {g^g^g^'g^^^tg^ (11) See WUls v. Stradling, 3 Ves. 378 ; Huddlestone y. Briscoe, 11 Ves. 591; Hoi- by defendant's land V. Eyre, 'i Sim. & Stu. 194. An agent contracting for the sale or demise of father, lands, need not under sect. 2 of the statute of frauds, 29 Car. 2, be authorized in writing. Clinan v. Cooke, 1 Sch. k Lef. 31. ■* An agreement in a lease, that improvements by the lessee should remain after the expiration of the term, and become the property of the lessor, on making com- pensation, will be enforced. Berry v. Van Winkle, 1 Green, Ch. 269. So a provision in a lease, that the lessee may purchase the land on certain terms, may he enforced in favor of the lessee, though there is no corresponding obligation on his part. Matter of Hunter, 1 Edw. Ch. 1. Where one contracts for a lease upon certain stipu- lations, and enters on the land but fails to perform the stipulations, he cannot com- pel the making of the lease to him. Jones v. Roberts, 6 Call, ISY ; Earvie v. Banks, 1 Band. 408. 6 21 BILLS FOR SPECIFIC PEKFOEMANCE. husband of your oratrix was for many years the occupier of a farm and lands at B. aforesaid which he held by lease under P. B. of, &c. at the yearly rent of £ for a term of years which expired on, &c., and that the said I. G. did some time previously to the expira- [ *22 J *tion of the said lease make application for a renewal thereof for a ApplicatioQ further term of fourteen years to I. H. the agent of P. B. of, &c. for a renewal, ^j^^g defendant hereinafter named who was the son of the lessor of the said premises and was seised of or otherwise well entitled to the rever- sion therein. And your orator further showeth that the said I. H. thereupon demanded the yearly rent of <£ for the same farm and Treaty be- lands for such new lease. And the said I. Gr. having objected to tween the g^jjj increased rent it was agreed between the said I. H. and the and" the de- Said I. Gr. that P. K. who was named by the said I. G. should meet fendant. the Said I. H. and that they should together settle the new rent upon a view and valuation of the said farm, and the said P. R. and the said I. H. did accordingly meet and settle the said rent for such further term of fourteen years at £ per annum. And your orator further showeth that before any further steps were taken as Death of I. G. to the said new lease and on or about, &c. the said I. G. departed this life and thereupon your orator (who is the brother of your oratrix) and I. G. a son of the said I. G. deceased, went together on, &c. to His widow the said I. H. and informed him that your oratrix was desirous to treats for a j^ave the new lease of the said farm which had been promised to her new lease. ^^^^^ ^^^^ husband. And it was then agreed between your orator on ^me*™*° °'^ the part of your oratrix, and the said I. H. on the part of the said P. B. that your oratrix should have a lease of the said farm and lands for fourteen years from the expiration of the old lease at the yearly rent of .£ for the first seven years and at the yearly rent of £ for the remainder of the term and that for the security Her co-plain- of the said P. B. your orator should be named as a joint lessee with tiff agrees to jq^^ oratrix in the said lease and should execute the counterpart see^arsurety thereof. And your oratrix and orator further show that the abate- for her. ment of £ a year in the rent for the first seven years was pro- posed by the said I. H. himself in consideration of your oratrix's situation, and the said L H. as soon as the agreement was concluded made a note in writing thereof and signed the same in the form of Instructions a letter to Mr. S. the attorney of the said P. B. and as instructions given for for him to prepare a lease accordingly and delivered the said letter w^j^' *° y°^'^ orator who carried it to the said Mr. S. And your oratrix tinuecT to°pay ^"^^ orator further show that your oratrix has in pursuance of the said the rent agreement paid to the said I. H. the yearly rent of £ for the said agreed upon, land and premises from the said day of and your oratrix fargetumTin "po^i ^^^ \a.\th of the said agreement with the full knowledge and ap- improve- probation of the said I. H. and of the said P. B. hath laid out a very ments. considerable sum of money in the improvement of the said farm and lands and the buildings thereon. And your orator and oratrix hoped that the said P. B. would have granted your orator and ora- trix a lease of the said farm and lands as in justice and equity he Pretence that ought. BuT NOW SO IT IS, &c. [see form IV. p. 5.] Pretends that °a3^^'^r™d°* ^° ^^'^^ agreement as aforesaid was ever made or entered into, into. Whereas your oratrix and orator charge that the said P. B. well BILLS FOR SPECIFIC PERFORMANCE. 22 knew of such agreement at or immediately after the making thereof Charge tbat and hath repeatedly admitted the same. And in particular did in defendant the month of acknowledge such agreement in the presence of agreement G-. I. another brother of your oratrix and T. P. and promised the and admitted *said G. I. that he would take care that your oratrix should have ^^^ same. the lease accordingly. And the said P. B. at other times pretends [ *28 j that such agreement was not reduced into writing nor signed by any Pretence that person lawfully authorized on his part. Charge that the said I. H. ^^^ agreement was an agent duly authorized to that effect by the said defendant ^jj, ^nd was and that such agreement was reduced into writing and signed as not signed by aforesaid by the said I. H. not only in the letter hereinbefore stated ^" ^^sf^p' duly to have been written by the said I. H. to the said Mr. S. but also in n'i!['°"^f ' other letters written by the said I. H. to the said P. B. Charge conTrlry, and that by reason of the circumstances hereinbefore stated the said de- tiiattiieagree- fendant would be bound in equity to perform the said agreement on ™fiit appears his part even if the same had not been reduced into writing and ^•^;tten'^^ signed in manner hereinbefore-mentioned. All which actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts.'\ And that the said defendant may answer the premises and that the Prayer, said defendant may be decreed to grant to your orator and ora- trix a lease of the said farm and lands pursuant to the aforesaid agreement your orator and oratrix being ready and willing and hereby offering to execute a counterpart of such lease. [And for further relief, see form VIII. p. 5.] May it please, &e. [Pray subpoena against P. B. See form No. 1, p. 6.1 J. L. VII. Bill hy lessee against lessor for specific performance of a writ- ten agreement for a lease of a house. To, &c. Hutiibly complaining showeth unto your lordship your orator A. B. of, &c. That C. D. of, &c. (the defendant hereinafter named) being or pretending to be seised or possessed of a messuage or tene- ment situate, &c. and being willing and desirous to let the same he in the month of proposed and agreed to grant unto your orator a lease of the aforesaid premises with the appurtenances and there- upon your orator and the said C. D. duly executed or subscribed a certain memorandum or agreement bearing date, &c. [stating the agreement.^ As in and by, &g. And your orator further showeth Agreement for that in expectation and full confidence that a lease would have been i^^-se. made and executed to him of the said messuage or tenement and ^'^1°*'^ l^'d premises pursuant to the terms of the said agreement, your orator money in re- hath laid out sundry sums in repair of the said premises to a con- pairs. siderable amount. And your orator further showeth that your ora- tor hath been always ready to perform his part of the said agreement and to accept a lease of the said premises pursuant to the terms thereof. And your orator for that purpose caused a draft of a lease Kefusaibyde- to be drawn pursuant to the terms of the aforesaid agreement and fondant to tendered the same to the said defendant for his perusal and appro- agreement '^ 23 BILLS FOR SPECIFIC PERFORMANCE. bation but he refused to accept or peruse the same. And your orator [ *24 ] ^further showeth that he hath frequently by himself and his agents Applications, applied to the said C. D. and in a friendly manner requested him to make and execute unto your orator a lease of the said messuage or tenement and premises conformably to the said agreement. And your orator well hoped, &c. But now so it is, &c. {see form IV. Pretence that p. 5.] Defendant pretends that no such agreement as aforesaid was defendant gyg,. made OF entered into by or between the said defendant and your to grantT^^*^ orator or any agreement or that he consented to grant a lease to your lease. orator of the aforesaid messuage or tenement and premises. Whereas Charge the your orator charges the contrary of such pretences to be the truth. contrary. ji^n,j go the Said confederate will at other times admit, but then he Pretence that pretends that he hath been always ready and willing to make and he is willing execute a lease of the said messuage or tenement and premises pur- to execute^a^^ ^°^"* ^° ^^^ terms of the said agreement and in all respects to per- trTh^^'^terms form the same on his part. Whereas your orator charges the con- of the agree- trary thereof to be the truth. But nevertheless the said defendant ment. refuses to comply with your orator's aforesaid requests or to perform or fulfil the aforesaid agreement. All which actings, &c. [see form Prayer. VI. p. 5, interrogating to the stating and charging parts.'] And that the said agreement may be especially performed and carried into exe- cution and that the said defendant may be decreed to execute a lease of the aforesaid messuage or tenement and premises to your orator ac- cording to the terms of the aforesaid agreement. Your orator hereby offering to execute a counterpart thereof and in all other respects to perform his part of the said agreement. [And for further relief, see form VIII. p. 7.} May it please, &c. [Pray subpoena against 0. D. See form No- 1, p. 6.] J. Lt. VIII. Bill hy lessee wga/inst lessor, for specific performance of a verbal agreement for a lease of a farm made with lessor's agent, the plaintiff having- occupied the farm under an old lease granted by a former owner — praying also for an injunction to restrain the defendant from proceeding in an action of ejectment. {12) To, &c. Defendant en- Humbly complaining showeth unto your lordship your orator J. M. titled to the of^ &c. That J. C. of, &c. the defendant hereinafter named was in the^'^estate* in ^^^ before the month of seised of or otherwise well entitled to plaintiff's oc- the reversion of a farm and lands called or known by the name cupation. of, &c. situate, &c. which your orator had occupied from the year at the annual rent of £ under and by virtue of a lease thereof from the Rev. E. S. which would expire at . And your orator further showeth that being desirous to obtain a new lease of [ *25 ] * his said farm and lands your orator on or about, &c. entered into Treaty for a a treaty for such new lease with a Mr. D. the agent or steward of newleasewith ^}^q g^id defendant J. C. and who was duly authorized by the said (12) See Wills v. Stradling, 3 Tes. 378 ; Morphea t. Jones, 1 Swanst. 172. BILLS FOR SPECIFIC PERFORMANCE. 25 defendant for that purpose. And your orator further showeth that defendant's the said Mr.^ D. asked an increased rent of £ for the said farm ^g^nt. and lands from the expiration of the subsisting lease which your orator expressed himself to be willing to give upon a lease for four- teen years, and the said Mr. D. then told your orator that the said defendant would object to granting leases but that he the said Mr. D. should see the defendant in the course of that day, and would let your orator know, and the said Mr. D. accordingly in the evening of that day informed your orator that he had seen the said defendant and that the said defendant was willing to grants to your orator a new lease for seven years at the said proposed advance of £ a year, and your orator then agreed with the said Mr. D. to accept the said new lease upon such terms. And your orator further showeth that on or about, &c. your orator was at the office of the said Mr. D. upon other business and the said Mr. D. then informed your orator that the said defendant had found fault with the bad state of husbandry of a part of the said lands called, &c. and that he thought your orator had better' have his lease executed as Mr. C. who had agreed for a lease of other lands at the same time with your orator was going to have his, and the said Mr. D. then asked your orator if he would have the lease made in his own name or in the name of himself and his brother, to which your orator answered that he would' have it in his own name. And your orator further showeth that the said Mr. D. then gave directions to his clerk to prepare two double leases one for your orator and the other for the said Mr. C. but no such lease has in fact ever been delivered to your orator. And your part peiform- orator further showeth that on, &c. your orator paid to the said Mr. ance by the D. on account of the defendant the sum of £ for the half year's P'ai'^t'ff- advanced rent which became due under the aforesaid agreement at and your orator hath ever since paid the said increased rent in performance of the said agreement. And your orator in the con- fidence that the said defendant would duly grant to him a lease of the said farm and lands for the said term of seven years pursuant to the terms of the said agreement hath laid out a considerable sum of money in completing an inclosure and in quickening about thirty- five acres of land part of the said farm in, &c. and in new fencing and quickening other parts of the said farm and in stone-draining other parts thereof and in building a wain-house thereto. And your orator further showeth that he was proceeding to make other improve- ments upon the said farm and lands but that on or about last your orator was served with a notice from the said defendant to quit the said farm and lands at following. And your orator further Applications. showeth that he hath by himself and his agents repeatedly applied to th« said defendant to grant to him a lease of the said farm and lands pursuant to the agreement aforesaid. And your orator well hoped, &c. [see p. 24.] And the said defendant in or as of Easter Defendant has Term served your orator with a declaration in ejectment and the brought an said defendant * threatens and intends to proceed in the said action gfgg°^gnt of ejectment in order to turn your orator out of the possession of the said premises unless he be restrained therefrom by the order and injunction of this honorable court. All which actings, &c. [see form [*26] 26 BILLS FOR SPECIFIC PERFORMANCE. VI. ■p. 5, interrogating to tJie stating and charging parts. — Prayer for a specific performance, see p. 24 ; and for an injunction to re- strain defendant from proceeding by ejectment, seep. 16.] IX. Bill for the specific performance of a written agreement for the ■purchase of leasehold premises, made hy defendant with the plain- tiff's agent ; defendant alleging, that the original lease is lost, plaintiff offers to grant him an under-lease.{lS) To, &c. Original lease. Humbly complaining showeth unto your lordship your orator E. T. of, &c. That by indenture bearing date, &c. and made between E. H. of, &c. of the one part and your orator of the other part the said E. H. for and in consideration, &c. [^stating the lease granted to Agreemeutfor the plaintiff .'] And your orator further showeth that on or about, &c. purchase. your orator entered into an agreement with I. C. of, &c. the de- fendant hereinafter named which was reduced into writing and signed by the said I. C. and by one H. D. for and on the behalf of your orator and who was duly authorized by your orator for that purpose and is in the words and figures or to the purport and effect following (that is to say :) [agreement for a sale of the premises for the remainder of the term granted in consideration of a premium.^ As in and by, &c. And your orator further showeth that it being under- stood and agreed between the said H. D. on the part of your orator Possession ^^nd the said I. C. that he the said I. C. should have immediate pos- given to the session of the said messuage lands and premises the said H. D. did defendant. accordingly upon the signing of the said agreement deliver unto the said I. 0. the keys belonging to the said premises and the said I. C. or some person on his part and behalf hath ever since been in pos- Applications. session of the said premises. And your orator further showeth that your orator hath repeatedly applied to the said I. C. and hath re- quested him specifically to perform the said agreement on his part and behalf. And your orator well hoped that the said defendant would have complied with such your orator's reasonable requests as in justice and equity he ought to have done. But now so it [ *27 ] *is, &c. [see form IV. p. 5.] And to color such his refusal the said Pretence that I- C. pretends that by reason that the original lease has been lost or the original mislaid that therefore your orator cannot make a good title to the lease is lost, gg^j^j messuage lands and premises for the residue of the said term. Whereas your orator charges that the said E. H. upon being informed (13) See Holland v. Eyre, 2 Sim. & Stu. 195, 6 ; Seaphy y. Hill, ib. 29, in which case the bill by the lessee for a specific performance was dismissed, not having been filed for more than two years after the treaty had been broken off, and the defendant had refused to perform the contract. As a general rule the rendor of a leasehold interest is, in cases where the agreement is silent, bound to produce the title of his lessor ; Fildes v. Hooker, 2 Mer. 424 ; Purvis v. Hayer, 2 Price, 488 ; but this rule does not extend to cases where the^estate is held under a bishop's lease. Fane y. Spencer, in note (a), 2 Mer. 430. BILLS FOK SPECIFIC PBREORMANCE. 27 thereof executed the counterpart of the same lease and delivered the Charge that same to your orator and is ready to confirm the said lease in any ^^^ original other manner that can reasonably be required. And your orator ^^jg^ ^.jjg further charges that your orator hath caused an under-lease of the counterpart. said premises to be prepared according to the agreement so made and signed as aforesaid by the said defendant and hath caused the same to be tendered to the said defendant, and the said defendant hath That an un- been requested by or on the part of your orator to accept the said <3er-lease has underlease and to execute a counterpart thereof, but the said de- to the defend- fendant refuses so to do and insists that he is entitled to an assign- ant. ment of the original lease. And your orator further charges that That he ought the said defendant is to be considered as in possession of the said to P^y ^^^ ^^- premises from the date of the said agreement and ought from thence ^\^'^\°^ ™rso to pay all rent and charges in respect of the said premises and ought interest on the also to pay to your orator interest in the said premium of £ . premium. All which actings, &c. [see form VI. p. 5, interrogating to the stat- ing and charging parts. — Prayer for a specific performance — pray- ing also that defendant may he charged with the rent and taxes of the premises since the date of the agreement, and may fay to the ■plaintiff interest on the premium from that date ; and for further re- lief ; see forms VIII. and IX. p. 6, and 7.] J. L. X. Prayer to a hill for specific performance of an agreement, on the faith of which plaintiff had taken possession, had paid off part of a sum due on a mortgage, and laid out considerable sums in re- pairs and alterations ; there heing a previous settlement, of which plaintiff had no notice ; Prayer for a specific performance, if a good title can he made ; and if not, then for an account and payment of the moneys advanced ly plaintiff and expended in repairs — and in default of payment, then that defendants may he decreed to assign the mortgage secu- rity to plaintiff for securing the amount so to he ascertained. The following is the outline of the plaintiff's case : T. H. by articles of agreement, agreed to convey a messuage and hereditaments to plaintiff in fee for £ ; which messuage had previously, together with other lands, been conveyed to the use of J. A. his executors, &c. for a term of years, for securing £ and interest ; and subject thereto, to the appointment of the said T. H. and in default of appointment to the use of the said T. H. in fee ; in the mortgage deed was contained a covenant that T. H. *and his wife [ *28 J should levy a fine to the uses thereof ; which fine was levied accord- ingly. Plaintiff was let into possession in pursuance of the agree- ment, and laid out considerable sums in repairs ; he also paid off part of the mortgage money due to J. A. and the said T. H. paid the re- mainder. Previously to the mortgage to J. A. the same heredita- ments had been conveyed to E. H. and J. H. in trust for the said 28 BILLS FOR SPECIFIC PERFOKMANCB. T. H. and M. his wife for their lives, with remainder to their chil- dren as tenants in common ; of this settlement the plaintiff had no notice. That the said agreement hearing date, &c. entered into hy the said T. H. with your orator as aforesaid may be performed if the said T. H. can make a good title to the said messuage and premises, your orator being willing to perform the same on his part and that in such case the said T. H. may be decreed to make and execute and procure to be made and executed proper conveyances of the said messuage and premises to your orator free from incumbrances pursuant to his said agreement. And in case the said T, H. shall not be able to make a good title to the said messuage and premises then that an account may be taken of what is due to your orator for the aforesaid sum of £ so paid by your orator to the said J. A. as aforesaid and in- terest for the same and of all sums of money paid laid out and ex- pended by your orator in repairing and altering the said messuage and premises and making the same suitable and convenient for your orator's business as aforesaid, and that the said T. H. may be decreed to pay to your orator what shall appear to be due to him on the tak- ing of the said accounts. And in case it shall appear that the said T. H. is unable to pay the said sum of £ so paid by your orator to the said J. A. as aforesaid and interest thereon, then that the said T. H. and the said J. A. and all proper parties may be decreed to assign to your orator the said mortgage bearing date, &c. so made by the said T. H. to the said J. A. as aforesaid of all the said here- ditaments therein comprised, and then that the said T. H. and M. his wife and the said B. H. and J. H. may be decreed to pay to your orator what shall appear to be due for principal and interest together with your orator's costs of this suit by a time to be appointed by this honorable court for that purpose, and in default of the said defend- ant's paying unto your orator such principal interest and costs as aforesaid, then that the said T. H. and M. his wife may be barred from all equity of redemption in the hereditaments and premises comprised in the said mortgage or any part thereof. [And for further relief] J. M. [ *29 ] *XI. Prayer of a hill hy a surety to compel a specific performance of an agreement to execute a mortgage to indemnify the plaintiff from all liability ; praying also for a writ of Ne exeat Regno. And that the said A. R. may be decreed specifically to perform the said agreement and to make a mortgage to your orator of the said estate and premises to indemnify him against the obligation he has entered into in the Admiralty Court as hereinbefore mentioned. And that it may be referred to the Master to settle such convey- ance if the parties should differ about the same. And that the said BILLS TO CANCEL AGREEMENTS. 29 A. R. may be restrained from going out of the jurisdiction of this honorable court into parts beyond the seas or into Scotland and that for that purpose a writ iVe exeat regno under the great ,8eal of Great Britain may be issued to restrain the said A. R. from going into parts beyond the seas or into Scotland. ^And for general relief.'] BILLS TO CANCEL AGREEMENTS, BILLS OF EXCHANGE, BONDS AND OTHER INSTRUMENTS." *XII. Bill hy the acceptor against the assignees of the drawers hanJc- rupts, the indorser and holder, to restrain proceedings at law upon an accommodation bill of exchange, and to have the same delivered up to be cancelled.{V) In the Exchequer. To the Right Honorable Frederick John Robinson Chancellor and Under-treasurer of his Majesty's Court of Exchequer at Westminster, to the Right Honorable Sir Richard Richards Knight, Lord Chief Baron of the same court, and the rest of the Barons there. Humbly complaining showeth unto your honors your orator H. B. of, &c. merchant, debtor, &c. [see form 2, p. 2.] That your orator (1) See Jervis v. White, 1 Ves. 413, 4, 2d edit. ; 2 Madd. Oh. Pr. p. 154, 227, 8. ' It may be laid down as a general rule, that where any description of writing evi- dencing liability on the part of the maker, whether it be commercial paper, a speci- alty, or other form of legal obligation, has become extinguished or discharged by subsequent events, or by payment, or otherwise, so that the writing has become fundus officio, but where its existence in an uncancelled state might subject the maker to vexatious litigation at a distance of time when the evidence of such extinguish- ment or discharge may have been lost, or so obscured as to render the party less able to repel the claim, in all these cases, equity will exert its power to cancel the instru- ment.. OarrettY. Mississippi and Alabama Bailroad, 1 Freem. Ch. tO. It is imma- terial that the instrument is void at la-vv as well as in equity, or whether' it be void on its face, or rendered so by the proof in the case. Hamilton v. Cummings, 1 Johns. 0. R. 517 ; Sesssions v. Jones, 6 How. Miss. 123 ; Jones v. Perry, 10 Yerg. 59 ; Maise v. Garner, Mart. & Yerg. 383. Where an estate is vested by deed, the cancellation of it will not divest the estate. Morgan v. Elam, 4 Yerg. 375 ; Oraysons v. Richards, 10 Leigh, 57. A party whose name has been forged as surety in a repleven bond, may maintain a bill quia timet for the cancellation of the bond. Patterson v. Smith, 4 Dana, 153. "Where, in a contract, a mode of rescinding it is provided, as by giving notice and repaying the money received, the party cannot rescind it in any other mode. McKay V. Garringlon, 1 McLean, 50. Equity may relieve against the breach of a contract,, not wilful or fraudulent, where full compensation can be made, and the party aggrieved can he placed in statu quo. Skinner v. White, 17 Johns. R. 357 ; Shaeffer v. Slade, 7 Blackf. 178 ; Keltner v. Keltner, 6 B. Hon. 40. The court must be able to put the parties in statu quo; Pintardy. Martin, 1 S. & M. Ch. 126; but if fraud, or the act of the party himself, prevents the court from re-iustating the parties, there may be a rescission. Clay v. IPurner, 2 Bibb, 52. A contract for the sale of land ought 29 BILLS TO CANCEL AGREEMENTS. previously to the month of had frequently accepted bills of exchange for the accommodation of Messrs. D. W. and J. H. W. not to be rescinded if the parties cannot well be re-instated, and the alleged defect in title is not clearly proved, or if proved, is inconsiderable and unimportant. Golden V. Maupin, 2 J. J. Marsh. 236. Rescission is, as a general rule, confined to cases of fraud or palpable mistake; the fraud must be charged in the bill, and must affect the substance of the contract. Thompson v. Jackson, 3 Rand. 504. A vendor, by bring- ing suit for the purchase-money of land and recovering a judgment, ratifies and con- firms the sale so that it cannot be set aside at his instance. Nelson v. Carrington, 4 Munf. 332. Where a party having objections to a contract, afterwards, without fear or duress, ratified it, it was held, that he had no claim for relief against such con- firmation. Edwards v. Handley, Hardin, 602. And where a vendee of land, after full knowledge of his right to ask a rescission of the contract, has transferred the_ pos- session, rescission will not be granted. Collier v. Thompson, 4 Monr. 81. A plaintiff, by a suit at law upon a contract, voidable on account of fraud by the other party, affirms the contract, if he has notice of the fraud, and he cannot afterwards sustain a bill for rescission. Sanger v. Wood, 3 Johns. G. R. 416 ; see also Sadler v. Robinson, 2 Stewart, 520 ; Finley v. Lynch, 2 Bibb, 566. So a vendee, who, with full knowledge of the fraud, pays portions of the purchase-money, cannot rescind. KnucTcolls v. Lea, 10 Humph. 577. A party entitled to rescind, must act promptly, and not sleep on his rights, or take time to speculate on the course of events. If he goes on, with full knowledge of his rights, recognizing the contract as still in force, and by his acts and conduct tacitly gives his assent to its execution, in a manner different from the original understanding of the parties, he is not entitled to rescission. Walk. Ch. 186. The party must be prompt in communicating the fraud when discovered, and consistent in his notice of the use he intends to make of it. Carroll v. Bice, Walk. Ch. 373 ; Disbrow v. Jones, Earring. Ch. 102 ; Street v. Dow, lb. 427 : Davis v. Tarwarter, 15 Ark. 286; Gain v. Guthrie, 8 Blackf. 409 ; Lamb v. Harris, 8 Geo. 546 ; Alexander v. Utley, 7 Ired. Eq. 298 ; Ayers v. Mitchell, 3 S. & M. 683 ; Taylor ^.met,_ 1 Barb. 471. Where the parties are in pari delicto in regard to the delay, rescission will not be de- creed. BracJcenridge v. Dawson, 7 Ind. 383. A compromise, induced by fraud and deception, will not prevent the rescission of a contract. Carr v. Callaghan, 3 Litt. 365 ; Shugart v. Thompson, 10 Leigh, 436. But a compromise between litigant partie^ will not be set aside because one of the parties in making the compromise had not a knowledge of all the facts in the case, unless it appears that such party submitted to a greater loss for the sake of the com- promise than he would have donehad the concealed facts been known to him. Currie V. Steele, 2 Sandf. Sup. Ct. 542. Rescission may be granted under the general prayer for relief; Prewit v. Graves, 5 J. J. Marsh. 1 14 : Bolware v. Craig, 6 Litt. 407 ; and the rescission should be entire ; Glassel v. Thomas, 3 Leigh, 133 ; see however, Prewit v. Graves, 5 J. J. Marsh. 114 ; Step V. Alkire, 2 A. K. Marsh. 257. A party seeking equity must do equity; Bruen v. Hone, 2 Barb. Sup. (Jt. R. 586; Hester v. Hooker, 7 S. & M. 768 ; Murnford v. American Life Insurance ^ Trust Company, 4 Comst. 463 ; thus, where anything has been received, repayment must be made, be- fore the court will decree the cancellation of the conveyance ; Miller v. Cotton, 5 Geo. 341 ; and where there are incumbrances on land, of which the vendee had knowledge, he will not f)e entitled to relief, but must rely upon the warranty in the deed. Stone V. Buckner,'12 S. & M. 73. But the contract will be rescinded whenever it is tainted by false representations by the vendor relative to his title, and the court may inquire into the whole conduct of the vendor relative to the matter. Smith v. Robertson, 2 Ala. 312. If the vendor of land has diedinsolvent, the vendee may obtain arescission of the sale, and a return of the purchase-money against his representative for fraudu- lent representations made by the vendor. Greenlee^. Gaines, 13 Ala. 198. Where, in a sale of land to a corporation, the bill alleges that the land has been used for a different purpose from that for which it was authorized to use real estate, by its charter, it was held, that it was no ground for a rescission. Barrow v. Nashville and Charlotte Turnpike Company, 9 Humph. 304. Where a lease was made by one only of three trustees, and the lessee having entered and made improvements as provided by the lease, and the cestui que trust having received the rents and profits for some years, the latter will not be assisted by a court of equity to avoid the lease. Vanleer's Ap- peal, 24 Penna. State. R. (12 Harris,) 224. If a contract is rescinded in equity, the vendee is discharged from the payments of his purchase-money, and entitled to have his bond given up ; Lowden v. Noding, 8 Ired. Eq. 208 ; and if he is evicted by a sale of land under an outstanding incumbrance against the vendor, he is entitled to have BILLS OF EXCHANGE, BONDS, ETC. 29 then of, &c. And that some time in or about the said month of Application to they applied to your orator to assist them with a loan of his accept- f^j t^e^loao^of the contract rescinded and the notes given in payment, cancelled. Martin v. Atkinson, 1 Geo. 228. The fact that an obligee of a bond conditioned for the conveyance of real estate, retains possession of the premises, destroys his right to rescind the con- tract, on the ground of the obligors non-performance on his part. Brumfield r. Palmer, 1 Black, 227 ; see however, Greenlee v. Gaines, 13 Ala. 198. Fraud, as a ground of rescission, and in the sense of a court of equity, properly includes all acts, omissions and concealments, which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and which are injurious to another, or by which an undue and unconscientious advantage is taken of another. Gale r. Gale, 19 Barb., (N. Y.) 249 ; Smith v. Mitchell, 6 Geo. 458 ; Esham v. Lamar, 10 B. Mon. 43 ; Reese v. Wyman, 9 Geo. 430 ; Hewitt v. Orane, 2 Halst. Ch. R. 159 ; Phillips V. Moore, 11 Miss. 600 ; Ross v. Meade, 5 Oilman, 171 ; Sheppard r. Henderson, 3 Gratt. 361, If a seller mislead the purchaser by a false or mistaken statement as to any one essential circumstance, the sale is voidable. Daggett v. Emerson, 3 Story, TOO ; Barbour v. Morris, 6 B. Mon. 120. It is not, however, sufficient for the plaintiff to raise a suspicion of bad faith, but he must establish it beyond reasonable doubt. Gould V. Gould, 3 Story, 516 ; Buck v. Sherman, 2 Doug. 116; Conway v. Ellison, 14 Ark. CI Barb.) 360 ; Magniac v. Thomson, 2 Wallace, Jr. 209 ; Kennedy v. Northup, 15 111. 148; Shrine v. Simmons, 11 Geo. 401; Eargrooves v. Nix, 14 Id. 316; West^. Rouse, lb. 715 ; see also. Smith v. Babcock, 2 W. & M. 246. Where the bill charges, that a false and fraudulent representation was made by the defendant, and his answer asserts an ability to comply with the representation, this puts him on proof of his ability as asserted. Wellborn v. Tiller, 10 Ala. 305. A bond fide purchaser of property from a previous grantee, to whom it had been con- veyed fo" the purpose of defrauding creditors, is entitled to protection against the claims of the creditors who were intended to be defrauded by the first conveyance ; Frazer v. Western, 1 Barb. Ch. R. 220 ; but a bill will lie in behalf of judgment creditors, to set aside a conveyance made in fraud of creditors by the debtor, who has since deceased; Trippe v. Ward, 2 Kelly, 304; and the creditor who first insti- tutes a suit in chancery to avoid a fraudulent conveyance, is entitled to relief, without regard to other creditors standing in the same right, but who have not made them- selves joint parties with him. McCalmont v. Lawrence, 1 Blatch. C. C. 232. An executrix, however, cannot maintain a bill in equity to set aside a transfer of the property, made by her testator, without consideration, for the purpose of defrauding creditors. Ordronaux v. Belie, 3 Sandf. Ch. R. 512. As to where a court of equity will not aid a creditor seeking to enforce a deed of trust in which he has fraudu- lently obtained an advantage over other creditors, see Phippen v. Deerham, 8 Gratt. 457. A sale of property to prevent the lien of expected judgments from attaching, is illegal. Gait v. Jackson, 9 Geo. 151. A fraudulent mortgage, duly executed, ia binding as between the parties, and conveys the property ; but equity will grant a creditor relief against the title of the fraudulent mortgagee. Parkhurst v. McGraw, 24 Miss. 134. And an attachment of the property of a debtor by his creditor, gives him a sufficient lien upon the same to entitle him to file a bill in equity to remove a fraudulent incumbrance. Stone v. Anderson, 6 Foster, (N. H.) 506. Where a bill, brought to set aside certain conveyances, on the ground of fraud in respect of cre- ditors, in order to avoid the Statute of Limitations, alleges that the fraud was not discovered until within four years of the filing of the bill, the onus is on the defend- ant to show that the plaintiff had notice prior to that time. Shannon v. White, 6 Rich, Eq. (S. C.) 96. A bill to set aside a sale of land on an execution, issued on a judg- ment by confession, upon the ground that there was fraud, must allege specially that it was confessed in fraud of creditors, and not merely that the design was to hinder and delay them. Printice v. Madden, 4 Chand. (Wis.) 170. Where the defendant has transferred to a third person, a note made by the com- plainant, in fraud of the complainant's rights, the bill should allege that the note was assigned by the defendant, in fraud of the complainant's rights, so as to vest the title in the assignee, and he should claim relief against the defendants on that state of facts. Mickles v. Colvin, 4 Barb. Sup. Ct. 304. An expression of belief by the vendor of a note, that the maker is responsible, is equivalent to an assertion that he is so, if made with knowledge that he was not responsible, and constitutes fraud. Foster v. Swasey, 2 W. & M. 217. But where a grantor received the note of a third person, upon the representation of the purchaser that the note is good, which turns out afterwards to be false, and retained the note until it was outlawed, without ance. 29 BILLS TO CANCEL AaKEEMBNTS. his accept- ance for a sum of money, and they severally assured your orator that if he would accept or indorse a certain bill of exchange for offering to restore it to the purchaser, he cannot ask the aid of a court of equity to cancel the sale. Lears v. Smith, 2 Mich. (Gibbs,) 243. To authorize a bill by legatees, next of kin and creditors of a deceased person, against his debtors or his trustee, it must appear that there was collusion between the debtors or trustee, and the personal representatives of the deceased, or some equiva- lent circumstances or ground, as the insolvency of the executor or administrator; muce V. Powell, 4 Ired. Eq. 297 ; Deaderick v. Walkins, 8 Humph. 520 ; and the fa,ct3 to sustain the allegation of collusion should be set out in the bill. Oreen v. Crdgh- ton, 10 S. & M. 159. A deed from a female child, just of age and living with her parents, made to a trustee for the benefit of one of those parents, founded on no real consideration, executed under the influence of misrepresentation by the parents, and containing in its pre- amble a recital of false statements, was ordered to be set aside and the property re- conveyed to the grantor; Taylor v. Taylor, 8 How. (U. S.) 183 ; but where a father had fraudulently conveyed land to trustees for the benefit of two of his children, it was held, that after his death his other heirs could not maintain a bill in equity, to Set aside such conveyance,, on the ground of fraud. Ober v. Howard, H Miss. 425 ; see also, Eyre v. Potter, 15 How. (U. S.) 42. A decree of the Orphans' Court, rendered on the final settlement of an administra- tor's account, will not be opened in equity when impeached for fraud, on proof of an error or mistake merely ; and where it is opened on the ground of fraud, the whole of it is unravelled; and if permission is given to surcharge or falsify, the onus is on the party who alle'ges mistakes, to prove them ; Cowan v. Jones, 27 Ala. 317 ; and the intrinsic character of proceedings in courts of law, as well as in pais, is subject to the scrutiny of a court of equity. Surget v. Byers, 1 Hemp. 715; see OiffordY. Thorn, 1 Stockt. (N, J.) 702. Agents are not permitted to deal validly with their principal in any case, except where there is the most entire good faith, and a full disclosure of all the facts and circumstances, and an absence of all undue influence, advantage, or imposition; Brooks V. Berry, 2 Gill, 83 ; and a conveyance obtained by a general agent from his principal, will be vacated for fraud in obtaining it ; or for the incompetency of the principal to manage his own business, or for inadequacy of consideration, so great as to render the transaction unjust, unequal, and unconscientious. lb. See also, Michael v. Michael, 4 Ired. Eq. 349. The same principle of good faith applies be- tween co-owners ; thus, where A., B. & C, are interested in a lease which is about to expire, and A. undertakes to procure a renewal for the benefit of all, but takes it in his own name, it will enure to the benefit of all. Burrell v. Bull, 3 Sandf. Ch. R. 15. An original bill may be filed to impeach a judgment in partition for fraud, and equity will relieve against a partition made in compromise, for fraud in its procure- ment; De Louis V. Meek, 2 Greene, (Iowa,) 55 ; Powell v. Spalding, 3 Iowa, 443 ; and to make a prima facie case of fraud against a title, under a decree in partition, the petition must aver, that all the intermediate grantees, as well as the defendant, had notice. Brace v. Reid, 3 Iowa, 422. A decision of land commissioners, obtained by fraud, may also be relieved against. Farber v. Levi, 1 Morris, 372 ; United States v. Sughes, 11 How. (U. S.) 552. Courts of equity will entertain jurisdiction to cancel or set aside an instrument, void on the face of it; Says v. Says, 2 Carter, (Ind.) 28 ; but they will not interfere to enforce the execution of an agreement, made in defiance of law, nor annul it if already executed. Swartzer v. Qillett, 1 Chand. (Wis.) 207 ; Stevens v. Myerson, 2 Halst. Oh. R. 477. Fraudulent misrepresentation and concealment, by a vendor of land, as to the nature, quality and quantity thereof, affecting the whole subject-matter of the con- tract, entitle the vendee to a rescission of the contract, and he will not be put to his remedy at law for compensation in damages. BoyccY. Grundy, 3 Pet. 210; McAl- lister Y.Barry, 2 Hay. 290; Spence v. Duren, 2. Ala. 251 ; Harris v. Carter, 3 Stewart, 233 ; Pitts v. Oottingham, 9 Porter, 675 ; Harris v. Williamson, 4 Hey. 124 ; Lewis v. McLemore, 10 Yerg. 206 ; Walker v. Dunlop, 5 Hey. 271 ; Stephenson v. Taylor, 1 A. K. Marsh. 235. And where one person misrepresents fact, and another acts on the faith of this representation, it is immaterial in a court of equity whether the party making the statement knew it to be true or false ; and a conveyance of land so ob- tained is held to be void. Harding v. Randall, 15 Maine, 332 ; see also. The State v. Holloway, 8 Blackf. 45 ; Taymon v. Mitchell, 1 Maryland, Oh. Decis. 496 ; Reese T. BILLS OF EXCHANGE, BONDS, ETC. 29 them the said D. W. and J. H. W. they could procure the same to be discounted, and that they or one of them would punctually provide Wyman, 9 Geo. 430. And if a person, relying upon the information derived from the vendor, has purchased and paid for land which proves of no value, he is entitled to rescind the contract, though the misrepresentation by the vendor proceeded from mistake, without fraud. Champlin v. Laytin, 6 Paige, C. R. 189 ; Oswald v. McGehee, 28 Miss. (6 Cush.) 340. A misrepresentation by a vendor, in order to constitute a ground for a rescission of the contract, must, however, be in reference to some ma- terial thing, unknown to the vendee, either from not having examined, or for want of opportunity to be informed, or from entire confidence reposed in the ven- dor; and his. remedy must be pursued in good time after the injury is discovered. Halls V. Thompson, 1 S. & M. 443. But where the facts lie equally open to the ven- dor and vendee, with equal opportunity of examination, and the vendee undertakes to examine for himself, without relying upon the vendor's statements, it is no evi- dence of fraud that the vendor knew facts not known to the vendee, and does not make them known to him. Ealls v. Thompson, 1 S. & M. 443 ; see Hough v. Richard- son, 3 Story, 659 ; Yeates v. Prior, 6 Eng. 58. Where a deficiency is material, a misrepresentation as to the quantity will be re- lieved against. Belknap v. Sealey, 2 Duer, 570. A fnlse representation or conceal- ment, by a vendor of land, in respect of the title, is fraudulent, and the vendee will be relieved from the contract in equity, although the outstanding superior title is on record. Parham v. Randolph, 4 How. (Miss.) 435. So also, where a mortgagor, by false and fraudulent representations, induced the mortgagee to believe, when the latter loaned money and accepted the mortgage as security, that it covered more and other land and buildings than it really did, a court of equity will, as against the mortgagor and voluntary assignees, reform the mortgage, and apply it to and enforce it on the lands and buildings fraudulently omitted. De Peyster v. Hasbrouck, 1 Kernan, (N. Y.) 582. Nevertheless, a mere matter of opinion, expressed by a vendor of land, in good faith, in respect to the title to the land sold by him, and the pro- bable decision of the court thereon should it be contested, is not ground for the rescission of the contract, because it turns out not to be correct, there being no par- ticular confidential relation subsisting between the parties. Mancy v. Porter, 3 Humph. 347 ; see also, Glasscock v. Minor, 11 Miss. 655. In like manner, false rea- soning upon facts truly stated, is no ground for relief. Bowman v. Bates, 2 Bibb, 47. On a bill for rescission of a contract, on the ground of a false representation, it is not necessary for the complainant to prove the exact words of the representation ; it is sufficient to prove their import; Taylor Y. Fleet, 1 Barb. 471 ; but it must appear that the other party intended a deception and was successful therein, to the damage of the party defrauded. Pratt v. Philbrook, 33 Maine, (3 Red.) 17. A fraudulent misrepresentation by a stranger, is not sufficient to rescind a. deed of conveyance ; Fisher v. Boody, 1 Curtis, C. C. 206 ; and the fraud of the party must be fraud at the time of the execution of the instrument, and not in a subsequent and distinct transaction. Chesterman v. Gardner, 5 Johns. Ch. R. 29; Money y. Porter, 3 Humph. 347 ; White v. White, 5 J. J. Marsh. 444. As respects the large class of cases in which mistake furnishes an adequate ground for relief, it is to be remarked that ignorantia legis neminem excusat, is a, maxim which is as much respected in equity as at law; Robinson v. Oathcart, 2 Cr. 0. C. 610; and a court of chancery will not undertake to relieve parties from their acts and deeds fairly done, though under a mistake of the law. Lyon v. Richmond, 2 Johns. Ch. 60; see also, Rankin v. Mortimer, 7 Watts, 374; Good v. Herr, 7 W. & S. 256; McAninch v. Laughlin, 1 Harris, 371; Magniac r. Thomson, 2 Wall. Jr. 209; Hinch- man v. Emans, Saxton, 100 ; Beebe v. Swartwout, 3 Gilman, 162 ; Brown v. Armistead, 6 Rand. 594 ; Manner v. Washington, 3 Strobh. Eq. 171 ; Hall v. Reed, 2 Barb. Ch. R. 500 ; Larkins v. Biddle, 2 1 Ala. 252 ; Arthur v. Arthur, 10 Barb. Sup. Ct. 9 ; Ferguson T. Ferguson, 1 Geo. Deeis. 135 ; see also, Leaviit v. Palmer, 3 Comst. 19; Farley v. Bryant, 32 Maine, 474; Dupree v. Thompson, 4 Barb. Sup. Ct. 279 ; although one of the parties was at the time of contracting, ignorant of the law, and disturbed by his fears, he will not be aided, unless the adverse party has been guilty of improper con- duct in obtaining the contract; Ounter v. Thomas, 1 Ired. Ch. 199 ; Sparks v. White, 7 Humph. 86; and the fact of not fully understanding the effect of an agreement at the time of its execution, is no ground for relief against it. Dow v. Eer, Sparks, Ch. 413. So, also, in accordance with this principle, it has been held, that the fact that purchasers of land, sold on execution, were at the time of the sale ignorant of certain conveyances of the premises, made before the date of the judgment on which the exe- cution issued, and recorded in the proper oflSce, does not entitle them to relief from *30 BILLS TO CANCEL AGREEMENTS. Plaintiff ac- *your Orator with the money to take up the same. And your orator cepts a bill at relying upon such promise agreed to accept such bill of exchange the payment of the purchase-money. Hand v. Orant, 10 S. & M. 514 see also, Palton T. Taylor, 1 How. U. S. 132. A court of equity, however,may interfere and grant relief for a mistake of law, where it is so gross and palpable as to superinduce the belief that some advantage was taken of the party, from imbecility of mind, or the exercise of improper influence. Haden v. Ware, 15 Ala. 149; Mellish v. Robertson, 25 Vt. (2 Deane,) 603 ; Smith v. McDougal, 2 Cal. 586. In regard to mistakes of fact, the general rule is, that where an act is done or con- tract made, under a mistake or ignorance of a material fact, it is voidable and reliev- able in equity ; MUes v. Stevens, 3 Barr, 37 ; and where the mistake is of the jacts con- stituting the essence of the contract, or founded upon representations of the seller material to the bargain, and constituting the essence thereof, it will be avoided, although the mistake be an innocent one. Daniel v. Mitchell, 1 Story, 173 ; Olassell V. Thomas, 3 Leigh, 113 ; Miles v. Stevens, 3 Barr, 21. But the mistake must be as to a fact of such a nature that the party could not by reasonable diligence get know- ledge of it when put upon inquiry. Taylor v. Fleet, 4 Barb. Sup. Ct. 95 ; Pharr v. Russel, 7 Ired. Eq. 222. The proof of the mistake must be clear and strong ; Beard v. Hubbell, 9 Gill, 420 ; and unless the bill contains the requisite allegations in regard to mistake, the court will not grant relief under this head of equity jurisprudence; White V. Denman, 1 Ohio State R. 110. Nor is a party estopped from asserting his rights to property because he stood by and saw it sold without objection, and ac- quiesced in the sale for some time, under a clear mistake as to his own title, which was of a doubtful character, and although acquainted with all the facts upon which such title arose. Lamott v. Bowly, 6 Har. & J. 500. No relief will be afforded against a contract of sale, because a fact lying in doubt in relation to the subject-matter of the sale, turned out differently from what was expected by both parties ; 'Ashcom v. Smith, 2 Penn. 211 ; but in proper cases, mistakes and written contracts may be cor- rected and reformed not only between the original parties, but between those claim- ing under them in privity, such as personal representatives, heirs, devisees, legatees, assignees, voluntary grantees, and judgment-creditors, or purchasers from them with notice of the facts. Wychey. Oreen, 11 Geo. 159; Ligon v. Rogers, 12 Id. 281 ; Wall V. Arringion, 13 Geo. 88. A court of equity has, nevertheless, no power to change contracts fairly entered into ; nor can it, unless under special circumstances, relieve against the consequence of the non-performance of a condition precedent. Rives v. Toulmon, 25 Ala. 452; Valleite v. Whitewater Valley Canal Company, 4 McLean, 192 ; Warburton v. Lawman, 2 Greene, (Iowa,) 420; and a mistake in the intention of one party, the other being guilty of no fraud, is no ground for relief. Ruffner v. McConnell, 17 111. 212. But the court cannot be called upon to restore surrendered rights in the absence of fraud or mistake, or to make contracts for parties who have made none, or enforce them, when uncertain. Oakley v. Ballard, 1 Hemp. 475. Nor can a party be relieved who has made a disadvantageous contract from carelessness or inattention, and where there has been no mistake or fraud. Robertson v. Smith, 11 Texas, 211. But where land is sold for so much an acre, and the contract is closed on the measurement of an artist who is employed by the parties to ascertain the number of acres, and securities are given for the purchase-money, a mistake of the artist, as to the quantity of land, will be relieved against; Jenks v. Fritz, 7 Watts & Serg. 201; Grundy v. Grundy, 12 B. Monr. 269 ; but a small deficiency, which might have resulted from inaccuracy in the survey, will not entitle the vendee to relief. Weaver v. Carter, 10 Leigh, 37. And where a deed conveys land for a consideration in gross, described as containing one hundred acres, be the same more or less, neither party can claim relief on account of any deficiency or surplus, unless it be of such a character as to induce belief of fraud or mistake. Smallwood v. Ilaiton, 4 Md. Ch. Decis. 95. In like manner, where, by a mistake of boundaries in a deed, more land is included than was intended, equity will not reform the boundaries after the land has passed to a bona fide purchaser without notice. Whitman v. Weston, 30 Maine, (17 Shep.) 285; Farley v. Bryant, 32 Id. (2 Red.) 474. In Davis v. Rogers, 33 Maine, (3 Red.) 222, it was held, that a bill in equity to reform a conveyance of real estate, on the ground of accident or mistake, will be defective on demurrer, unless the persons under whom the defendant claims by deeds of warranty, made since the alleged mistake or accident, are made parties, and unless an allegation is contained in the bill that the grantees, in such deeds, purchased with notice of the mistake or accident. Davis v. Roger, 33 Maine, (3 Bed.) 222. Where the price of land sold is regulated by the quantity, and the quantity proves to have been mistaken, the vendee is entitled to relief; and he may BILLS OF EXCHANGE, BONDS, ETC. 30 to be drawn upon him by the said D. W. and J. H. W. And three months your orator further showeth that the said D. W. and J. H. W. ^°^ ^^'''■ take the land and have compensation for the deficiency. Stebbins v. Eddy, 4 Mason, 414. And where both parties are mistaken as to the situation of the land, and cir- cumstances materially affecting its value, the contract will be rescinded. Chamber- laine v. Marsh, 6 Munf. 283. If, by mistake of both vendor and vendee, a deed did not cover the land intended to be sold and bought, the money paid on account of the purchase-money may be decreed to be repaid, and the bond and mortgage of the pur- chaser to be cancelled. Blair v. McDonnell, 1 Halst. Ch. (N. J.) 327 ; see also, Osborn V. Phelps, 19 Com. 63. So where a party held a deed of real estate, which he knew at the time of receiving it covered more than his purchase, he was ordered to quit- claim to the real owner that part which he fraudulently claims to hold, although the real owner was not his immediate grantor. Busby v. Littlefield, 11 Foster, (N. H.) 193; see also, Butler \. Miller, 15 B. Monr. (Ky.) 617; BlodgetlY. Hobart, is'vt. (3 Washb.) 414. If a complainant make application to a court of equity to have an alleged misdescription of land, sold on execution, corrected, the relief sought is in the nature of a bill, and will not be granted unless the evidence that there was a mistake is clear, unequivocal, and decisive. Carnally. Wilson, 14 Ark. (1 Barb.) 482. Equity corrects mistakes in written instruments, when it is shown by clear and satisfactory proof, that the terms of the instrument are not conformable to the real intent of the parties ; Linn v. Barkey, 7 Ind. 69; Davidson v. Greer, 3 Sneed, (Tenn.) 384 ; Trout v. Goodman, 7 Geo. 383 ; Warburton v. Lawman, 2 Greene, (Iowa,) 420 ; Coffing V. Taylor, 16 111. 457 ; Stone v. Hale, 17 Ala. 557 ; but the evidence of the alleged mistake must be free from doubt. Mosby v. Wall, 23 Miss. (1 Cush.) 81; Goldsborough v. Ringgold, I Maryland Ch. Decis. 239 ; Baily v. Bailey, 8 Humph. 230 ; McKay v. Simpson, 6 Ired. Eq. 452 ; Farley v. Bryant, 32 Maine, (2 Red.) 474 ; Sted- well V. Anderson, 21 Conn. 139; Wyche v. Greene, 11 Geo. 159. Thus, a mistake clearly proved, by which the word " heirs" was omitted in a deed, will be corrected by a court of equity ; Rutledge v. Smith, 1 Busbee, Eq. (N. C.) 283 ; and where, in a deed of land, the intention to convey a fee fails to do so, the deed may be reformed by the court, or the parties may of themselves do the same thing ; Wright v. Delafield, 23 Barb. (N. Y.) 498. A mistake in the date of a certificate of the record of a deed may be corrected, not by changing the certificate, but by compelling a release by those claiming on account of it. Hiatt v. Calloway, 7 B. Monr. 178. But a will cannot be corrected upon the ground of mistake, by striking out the name of the legatee and inserting that of another person inadvertently omitted by the drawer or copyist; Yates v. Cole, 1 Jones, Eq. (N. C.) 110 ; nor can a court of equity fill up a blank in a will, or restore a bequest, which it is alleged was originally in the will, but was fraudulently obliterated by the executor, or some other person, before the probate ; the will must be taken as it is certified from the Court of Probate ; Trezler v. Miller, 6 Ired. Eq. 248 ; but where the testator has mistaken the christian name of a legatee, the court has power to correct the error. Wood v. White, 32 Maine, (2 Red.) 340. Chancery has jurisdiction also to correct a mistake in a policy of insurance, and to grant appropriate relief if a loss occur under the policy. Firemen's Ins. Co. v. Powell, 13 B. Mon. 311. Where several underwriters in a policy of insurance agreed that all the suits against each for a loss, should abide and follow the event of one, the agreement was set aside, upon proof of a difference in the several cases, unknown to the defendants at the time of the agreement. Alexander -f . Muirhead, 2 Dessau. 162. If A. pays to B. a full price for property, and a contract is drawn through mistake to A. & C, the latter being absent and having no participation in the arrangement, and A. igno- rantly accepts the contract, C. cannot hold in equity against A., though he may have been a creditor of B. McCann v. Letcher, 8 B. Mon. 320. Where a party alleges a mistake in the drawing of a deed or other instrument, he must become an actor in seeking to reform it; until reformed, it is the highest evidence of the contract, and eannot be contradicted or varied by parol proof. Hogan v. Smith, 16 Ala. 600. A court of equity will rectify a mistake in a written instrument, by the aid of parol evidence, as between the original parties, but as against bona fide purchasers without notice, the instrument must stand as written. Kilpairick v. Kilpairick, 23 Miss. (1 Cush.) 124; Wall v. Arrington, 13 Geo. 88; Bellows v. Stone, 14 N. H. 175. And where a party seeking to set up in chancery a restriction in the use and enjoyment of a purchase, by an alleged parol agreement, by mistake not having been inserted in the deed, he must be confined to the agreement set out in his bill, though the proof may exceed the allegation. Alhey v. McHenry, 6 B. Mon. 50. If a fact is equally unknown to both parties, as where each has equal and adequate means of 30 BILLS TO CANCEL AGEBBMENTS. accordingly drew upon your orator a certain bill of exchange for the sum of £280 dated the day of and payable three months information, or where the fact is doubtful from its own nature, in every such case, if the parties have acted in entire good faith, a court of equity will not interpose. McCobb V. Richmdson, 24 Maine, 82; Belt v. Mehen, 2 Cal. 159 ; see also, Bunter v. Oowdy, 1 Ham. 449 ; Crowder v. Langdon, 3 Ired. Oh. 4Y6; Hough v. Richardson, 3 Story, 659. Nor will equity interfere to aid one creditor against another, for a mis- take, where both are equally meritorious. Knight v. Bunn, 1 Ired. Eq. 77. But where both parties, to a contract for the sale of land, are under a mistake with re- gard to the vendor's title, which was supposed to be perfect but proves void, a court of equity will relieve the vendee from the contract. Haddock v. Williams, 10 Verm. 570; Irick v. Fulton, 3 Gratt. 193. And where there is a mutual misconception of the rights of the parties, amounting to a mistake of law, by which the object of the contract is defeated, it may be set aside. Champlin v. Layton, 1 Bdw. Oh. 467 ; Na- bours V. Cocke, 24 Miss. 44. As respects inadequacy of consideration, the general rule, established by nume- rous cases is, that inadequacy alone will not, of itself, sustain a charge of fraud, so as to justify rescission, unless the inadequacy is so gross as to furnish proof of fraud or undue advantage, or unless other circumstances are connected therewith, which may induce a chancellor to rescind. Howard v. Edgell, 17 Verm. 9 ; OreenY. Thomp- son, 2 Ired. Oh. 365 ; Butler v. Haskell, 4 Dessau. 651 ; Newman v. Meek, 1 Freem. Oh. 441 ; White v. Flora, 2 Overton, 426; Hardenan v. Burge, 10 Yerg. 202 ; Enobb v. Lindsay, 5 Ham. 468 ; Osgood v. Franklin, 2 Johns. Oh. R. 1 ; Mann v. Betterly, 21 Vt. (6 Washb.) 326; Wintermute v. Hnyder, 2 Green, Ch. 489 ; Stubblefield v. Patter- son, 3 Hay. 128 ; Delafield v. Anderson, 7 S. & M. 630 ; Holmes v. Fresh, 9 Miss. 201 ; Wright v. Wilson, 2 Yerg. 294; Potter y.Fveritt, 7 Ired. Eq. 152 ; Wormack v. Rogers, 9 Geo. 60 ; McAriee v. Engart, 13 111. 242 ; Judge v. Wilkins, 19 Ala. 765 ; Cribbins v. Markwood, 13 Gratt. (Va.) 495. But if there has been delusion on the part of the grantor, known to the grantee, there may be rescission ; Holdcn v. Crawford, 1 Aik. 390 ; or inequality in the condition of the parties ; George v. Richardson, Gilmer, 230 ; although it is otherwise if the complainant was himself in fault for the inadequacy of price. Forde v. Herron, 4 Munf. 316. It has been held, that the rule that a sale will be set aside for inadequacy of price, applies only to private sales, and not to auction sales ; Newman v. Meek, 1 Freem. Oh. 441 ; yet it is said, in the same case, that if a purchaser at an auction sale, by fraudulent management, or misrepresenta- tion, prevents the attendance of others, or uses any influence to put down fair com- petition in bidding, equity will interpose and set aside the sale, on the ground of fraud. The inability of the vendee to make a good title at the time the decree is pro- nounced, though it forms a sufficient ground for refusing specific performance, will not authorize a court of equity to rescind the agreement in a case where the parties have an adequate remedy at law for its breach. Hepburn v. Dunlop, 1 Wheat. 179; Dunlop V. Hepburn, 2 Id. 231 ; Willy v. Hightower, 6 S. &M. 345. But if the contract ought not in conscience to bind one of the parties, as if there had been mistake or fraud, a court of equity will interpose and set aside the contract ; Dunlop v. Hepburn, 2 Wheat. 231 ; and where it is apparent at the hearing, that a perfect title may be made, and no fraud is alleged or proved, the contract will not be rescinded ; Fletcher V. Wilson, 1 S. & M. Ch. 376; but where the vendor cannot make title, and is insol- vent, and the covenants for title, and the payment of the purchase-money are inde- pendent, the contract of sale will be rescinded at the instance of the vendee. Long V. Brown, 4 Ala. 622. If neither actual nor threatened eviction is charged, the in- solvency of the vendor alone will not be sufficient ground for relief ; Latham v. Mor- gan, 1 S. & M. Oh. 611 ; and in Parks v. Brooks, 16 Ala. 529, it was held, that where the vendor, although unable to make title, was solvent, the contract would not be rescinded on the ground that he is a resident of another State, if he was such at the time of the contract, and has so continued. If the vendor, at the time of the decree, is able to make a good title, equity will not relieve for a defect at the time of the sale ; Syme v. Johnston, 3 Cal. 558 ; the vendor may complete the title at any time be- fore hearing. Clauton v. Purges, 2 Dev. Ch. 13 ; see also, Wickliffe v. Lee, 6 B. Monr. 543 ; Westall v. Austin, 5 Ired. Eq. 11. Where a purchaser has accepted a conveyance, and is in the undisturbed and unquestioned possession of the property, he cannot, where there is no fraud or mistake, sustain a bill to rescind the contract, on the ground that there is an outstanding title in another, by which the purchase may at some time be defeated; Van Lew v. Parr, 2 Rich. Eq. 321 ; Coster v. Griswold, 4 Edw. Oh. 364; see also, Lanier v. Hill, 25 Ala. 554; and where he continued in possession and en- BILLS OF EXCHANGE, BONDS, ETC. 80 after date, which your orator thereupon accepted. And your orator further showeth unto your honors that the said bill of exchange having been delivered by your orator to the said D. W. and J. H. W. without any consideration whatsoever had or received by your orator for the same, the said D. W. and J. H. W. ought either to have pro- vided your orator with the money to take up the same when due as they had promised or else have re-delivered the same to your orator to be cancelled, but previously to the same becoming due a commis- The drawers sion of bankrupt under the great seal of Great Britain was awarded become bank- and issued against them the said D. W. and J. H. W. bearing date ^^^ ^' on or about the day of now last past, and the said D. W. and J. H. W. were duly found and declared bankrupts by the major part of the commissioners in the said commission named. And G. T. of, &c. W. C. of, &c. W. B. B. of, &c. and W. B. of, &c. having Assignees been duly chosen assignees of the estates and effects of the said bank- chosen, rupts, the usual assignment thereof hath been made to them as such assignees by the major part of the commissioners in the said com- mission named; and your orator hoped that the said G. T. W. C. W. B. B. and W. B. would have provided your orator with the money to take up the said bill of exchange when the same became due, or else would have re-delivered the same or caused the same to have been re-delivered to your orator to be cancelled, and that no pro- ceedings would have been had against your orator to recover the amount thereof, as in justice and equity ought to have been the case. But now bo it is may it please your honors that the said G. T. W. C. Vf. B. B. and W. B. combining and confederating to and with J. J. of, &c. and T. 0. of, &c. and with divers other persons, &c. Defendants [see form IV. p. 5,] they the said confederates absolutely refuse to refuse to deli- deliver or cause or procure to be delivered up to your orator the said joyment of the land for fifteen years, with a full knowledge of all the facts affecting his title, his heirs were refused a rescission of his contract. Lacey v. McMillen, 9 B. Monr. 523; see also, Manery. Washington, 3 Strobh. Eq. 171. In Beale v. Seively, 8 Leigh, 658, the vendee was in possession under a conveyance with general war- ranty, and it was held by the court, that he could not be relieved against the payment of the purchase-money unless the title be questioned by suit threatened or prosecuted, or unless he can show a defect of title, in respect to which the vendor has been guilty of fraudulent representation or concealment, and which the vendee at the time had no means of discovering. The complainant must show clearly the defect of title, or the fraud which be alleges to exist. He cannot ask the defendant to deduce his title, he must himself show the defect in order to obtain a rescission. Moss v. Davidson, 1 S. & M. 112. The vendee, if he seeks to rescind the contract, must oifer to return the land to the vendor. A declaration that the vendor is unable to make title, and that the vendee is willing to pay the purchase-money on receiving a complete title, does not authorize a rescission. Fitspatrick v. Featherstone, 3 Ala. 40. And where the contract to sell has been executed by a conveyance, a defect in the title, in a case free from fraud, will not be sufficient ground for rescission. The purchaser is left to his remedy at law. Woodruff y. Bunce, 9 Paige, C. R. 443. So if in an assignment of a mortgage of real estate, both parties suppose the title to be good, a defect in the title at the time of the assignment will not of itself alone entitle the vendor to reclaim the purehase-money. Butman v. Sassey, 30 Maine, (17 Shep.) 263. In a bill to set aside a deed, on the giound that the grantor was mentally incom- petent to make it, the proper allegation, for the purpose of putting his competency in issue is, that he was incapable of transacting any business, though a statement of the circumstances from which such conclusion is drawn, may be sufficient. Harding V. Handy, 11 Wheat. 103. 7 30 BILLS TO CANCEL AGREEMENTS, Ter up the bill bill of exchange to be cancelled, and instead thereof the said T. O. to be cancel- ij^th got into his possession the said bill and hath lately commenced fendanf T^'o. ^^ action at law against your orator to recover the amount thereof, has commen- the said confederates or some of them at times giving out and pre- ced an action tending that the said bill of exchange was made and given by your ^Sintfff to\e- ora^^oi" to tlie said bankrupts for a full valuable consideration or con- cover the siderations in money. Whereas your orator expressly charges the amount. contrary thereof to be the truth, and that your orator never had or Pretence that received any good or valuable consideration or considerations for the bill ^^^ the said bill of exchange, and that the same was delivered by him pilfntiff^for a to the Said bankrupts D. W. and J. H. W. for their accommodation, valuable con- without receiving any consideration or considerations for the same, sideration. a,nd upon the firm reliance that they or one of them would supply Charge the j^-^j. orator with the money to take the said bill up when the same tr^e'^anVthat became due and payable ; And so the said confederates will some- r'*31 1 times admit, but then the said *confederate J. J. pretends that he J- ^ discounted the said bill of exchange for full valuable considerations delivered to ii money Or otherwise at the time when the said bill was indorsed to the bankrupts bim, and that when he paid or gave the full valuable consideration for their ac- qj. considerations for the same he had not notice that the said bill had commo ation. ^^^^ giyen by your orator in the manner and upon the express stlpu- defendant J J. lations hereinbefore mentioned, or without a full valuable or any that he dis- consideration received by your orator for the same, and that there- counted the fQj.g jQU). orator ought to pay the amount thereof. And the said vXlwe ''con- J- J- further pretends that he indorsed the said bill of exchange sideration to the Said T. 0. for good and valuable considerations before he withoutnotice the said J. J. received any notice from your orator, of the terms "tamfefat-™" ^pon which the same had been obtained from your orator, and tending the before your orator had ri8quested him to deliver up the same, making of it, Whereas your orator charges the contrary of all such pretences to ?°^ *'*' ^^ be true, and particularly that the said J. J. did not ever give the defendant P^y or allow to the said bankrupts or either of them the full T. 0. without value of any consideration whatever for the said bill of exchange ; notice. a_jj(j (.{ja^t ^}jg ga^j^ j j jj^^ fyj] notice or had some reason to know Charge the believe or suspect that the said bill had been given by your orator to true. the said bankrupts in the manner and upon the express stipulation herein before mentioned, and without any valuable or other considera- tion having been received by your orator for the same. And your orator further charges that the said J. J. received the said bill from the said bankrupts to get the same discounted for them and with an express undertaking on his part to deliver over the money he ob- tained upon such bill to them the said bankrupts, but that he never did procure such bill to be discounted or if he did he applied the moneys he obtained upon the same to his own use, and never paid Charse that ^^ delivered over any part thereof to the said bankrupts or either of defendantJ.J. them. And your orator further charges that the said J. J. hath had received received notice from your orator and the said bankrupts of the terms notice from ^ j^ which the Said bill had been obtained by the said bankrupts the plaintiff i^,, -n, it ^ ,• and the bank- and had been required by your orator to deliver up the same to him rupts. before he the said J. J. had indorsed the said bill of exchange to BILLS OF EXCHANGE, BONDS, ETC. 31 the said T. 0. and as evidence thereof your orator expressly charges ETidence in that the said J. J. had the said bill of exchange in his custody pos- support there- session or power on the day of last past : and that the said J. J. did on the day of last offer the said bill of ex- change for sale together with other bills to various persons within the walls of the King's Bench prison. And your orator further charges that Messrs. R. & S. as your orator's solicitors did on the day of the said month of by the direction of your orator write and send or cause to be written and sent unto the said J. J. a certain letter in the words and figures or to the purport and effect following (that is to say) : " Sir," &c. &c. And your orator further charges that not having received any answer to the said letter your orator's said solicitors did on the day of the said month of write and send or cause another letter to be written and sent to the said J. J. in the words and figures or to the purport and effect following (that is to say): "Sir," &c. &c. And your orator charges that the said J. J. did at the time that the *said bill was indorsed by him to the [ *32 j said T. 0. well know that the said D. W. and J. H. W. had become bankrupts. And your orator further charges that the said J. J. Charge timt, was on the said day of last past an insolvent and con- defendant J. J. fined in the King's Bench prison for debt with the said D. W. and ven^t and'"mi- ■J. H. W. And your orator further charges that the said J. J. did fined in King's not receive any good or valuable consideration for indorsing the Bench prison, said bill of exchange to the said T. 0. but that the same was con- bankrupts trived between them in order to compel your orator to pay the said That he did bill when the same became due. And the said confederate T. 0. ^ot receive pretends that he gave the value of the said bill of exchange for ^^7 consider- which he hath commenced his said action in goods which were at dorsing same fair and reasonable prices and were sold by him in the way of his to defendant trade, and at other times he will admit that he did not give any '''• ^■ value for the said bill in cash bank notes or goods, but that the said ?''f*®'?''^ '^^' J. J. was at the time indebted to him in considerable sums of money o. gave the and that therefore the said bill of exchange was indorsed and de- full value of livered over to him in satisfaction or payment of the said debt, but *^ J"'' ■" he refuses to discover how and in what manner the said debt arose ^°° or what is the amount thereof or when the said bill of exchange was indorsed to him. Whereas your orator expressly charges that the Charge the said T. 0. did not ever give pay or allow to the said J. J. or any contrary to be other person or persons the full value or any consideration for the ^^^' said bill of exchange ; and that the said T. 0. was at the time that the said bill of exchange was indorsed to him well aware or had some reason to believe or suspect that the said D. W. and J. H. W. had be- come bankrupts, and that the said J. J. was then insolvent and con- fined in the King's Bench prison for debt with the said D. W. and J. H. W. and that the said J. J. had previously offered the said bill for Charge that sale (together with other bills) within the walls of the King's Bench ^^f«°^?^°' J- • ^° , iiiyii 1 1 >'• had pre- prison to several persons who had reiused to purchase the same, viousiy offer- But in case the said T. 0. did give any consideration or considera- ed the bill to tions for the said bill of exchange (which your orator does not admit) s^^^'^^l per- • • • • sons tor ssiIg your orator charges that such consideration or considerations con- xhat if any sisted wholly or in part of goods and that such goods were not consideration 32 BILLS TO CANCEL AGREEMENTS. was given, nearly the value thereof aad that the prices charged in the bills of the same was parcels Or invoice thereof were very exorbitant and given merely as a^ ^exorbitant ^ colorable value for the said bill of exchange. And your orator fur- prioes. ther charges that at the time of the said bill of exchange being in- Charge that dorsed or delivered to the said T. 0. and of his paying or giving such "^f '^h"rt^°' r consideration or considerations (if any were or was paid by him) he that the plain- knew or had been informed or had some reason to know believe or tiff and the suspect that your orator and the said bankrupts had never received the bankrupts had fyj[\\ qj. any consideration for the said bill of exchange and he well knew any 'consr*^ °^ ^^^ ^^^^ informed that your orator had accepted /the said bill of ex- deration, change for the accommodation of the said bankrupts without having Charge that received any. consideration for the same. And your orator further defendant T. charges that the said T. 0. is a trustee for the said bill of exchange for and^is Tnde'm- *^^ ^^^^ confederate J. J. or for some other person or persons whose nified from names he refuses to discover, and that he holds the same for the said costs. confederate J. J. or for such person or persons without having given [ *33 ] any ^consideration or considerations for the same, and that if he re- covers the amount of the said bill of exchange or any part thereof he is to deliver over or pay the same to the said J. J. or such person or persons, and that he is indemnified by the said J. J. or such other person or persons from all the costs attending the attempt to recover upon the said bill of exchange on which he has brought his said Pretence that action at law. And sometimes the said confederates G. T. W. C. tli^ Pl^i"*'*f i^ W. B. B. and W. B. pretend that your orator is indebted to them as indebted to ,. p -j • p \. ^ • the assignees such assignees as aioresaid in some sum or sums oi money but in and that the what sum of money or how or in what manner and at what time or bill was ac- upon what account they refuse to discover, and they allege that the plaintiff for ^ ^^^^ ^"^^ °^ exchange was accepted by your orator for such pretended such debt. debt. Whereas your orator charges the contrary thereof to be the truth and that the said bankrupts well knew and have admitted that your orator never received any consideration for accepting the said bill as aforesaid and that they had actually forgotten what they had done with the said bill and did on the day of write a letter to your orator stating that they had lost the said bill and re- questing him not to pay the same if it should be presented to your Charge that orator for payment. And notwithstanding the said T. 0. got the defendant T. gaid bill of exchange into his possession without giving any considera- !?,.'r,i!!^°frf M= tion for the same yet he threatens and intends to proceed in his action M^^^^^^ ill i-Llo _ -a 1111 ■! 1 action. at law and in case he should recover judgment to take out execution Charge as to against your orator for the amount thereof. And your orator further books, &c. charges that the said several defendants or some or one of them now have or hath or lately had in their or one of their custody possession or power some book or books of account letters documents or writings from which the truth of the several matters and things aforesaid would appear. And so it would appear if the said defendants would set forth a full true and particular account of all such books of account letters documents and writings. All which actings, &c. [see form VI. p. 5, Prayer. interrogating to the stating and charging parts.'] And that the said defendant T. 0. may be decreed to deliver up and the said Gr. T. W. C. W. B. B. W. B. and J. J. be decreed to procure the said bill of exchange to be delivered up to your orator to be cancelled as having BILLS OF EXCHAN&B, BONDS, ETC. 33 been given by your orator and received by the said bankrupts D. W. and J. H. W. and tbe said several defendants without any eonsidera- tion. And that the said defendants respectively may be restrained by the injunction of this honorable court from proceeding in any action at law already commenced against your orator upon the said bill of exchange and from commencing any other proceedings at law against your orator upon the said bill, and that they may also be re- strained from negotiating indorsing or delivering over the said bill of exchange to any person or persons. And that your orator may have such further and other relief in the premises as to your honors shall seem meet and the nature of this case may require. May it please, &c. l_See forms No. 1, and 4, p. 6.] Pray subponna and injunction against T. 0. Q-. T. W. 0. W. B. B. W. B. and J. J. **XIII. Bill hy a trader who had compounded with Ms creditors, [ *34 ] against two creditors who executed the deed of composition, and had fraudulently gained an advantage over the other creditors, hy compelling the plaintiff previously to give them his promissory note for securing an additional payment of lOOOZ. ; one moiety of which the plaintiff paid, and gave a bill of exchange for the remaining moiety, which, not being paid, the two creditors proceeded by pro- cess of foreign attachment in the Lord Mayor's Court, to attach a sum of money belonging to the plaintiff in the hands of a third person. The prayer is to have the bill of exchange cancelled, and for an injunction to restrain the two creditors from proceeding in the attachment and from negotiating the bill of exchange, and also to restrain the garnishee from paying over the moneys in his hands. (2) The observations of the learned counsel who drew the bill are added at the conclusion, p. 41. To the Right Honorable John Earl of Eldon Lord High Chancellor of Great Britain. Humbly complaining showeth unto your lordship your orator T. (2) Where a creditor apparently accepts and gives a receipt for a composition, in order to enable the debtor to deceive his other creditors, feut takes security for the rest of his demand, or if he takes additional security for the amount of his composi- tion, such security is void. If a creditor's conduct is such as has a natural tendency to induce the other creditors to believe that all are acting upon equal terms and re- ceiving equal shares, as they may be influenced by that appearance, any private agreement for greater benefit to one is a, fraud upon the rest, and therefore void. Fawcett v. Gee, 3 Anstr. 910; and see Cecil v. Plaistow, 1 Anstr. 202 ; Middleton v. Lord Onslow, 1 P. Wms. 768 ; Leicester v. Rose, 4 Bast, 372 ; Saddler and Jackson, Ex parte, 15 Ves. 55, 2d edit. If a creditor acts upon an agreement for a composition, he is as much bound as if he had signed the deed. S. C. 15 Ves. 56. In the case of Smally. Brackley, 2 Vern. 602, where the plaintiff had compounded with his creditors, and had been guilty of a gross fraud and breach of trust towards the defendant a creditor against whom he had filed his bill to be relieved against an underhand agree- ment for securing to her a larger composition, the Lord Chancellor upon appeal, refused the plaintiff relief. 34 BILLS TO CANCEL AGEBEMBNTS. H. of, &c. That in and for some years before the year 1816 your Plaintiff un- orator carried on trade as a capillaire manufacturer iu, &c. And able to pay his ^hat in the said year 1816 your orator had become and was indebted T* '^ '°(i"t *° divers persons in several sums of money which he was unable to granteTli-""^^ P^J ^^ fill- And that by an indenture bearing date the day cense to him of in the Said year 1816 and made between your orator of to conduct his the first part, T. J. R. T. M. and Q. R. of the second part, tfe^superi^-' ^^^ ^^^ several other persons creditors of your orator who exe- tendenceofin- cuted the said deed of the third part, it was witnessed that the spectors. several creditors of your orator who were parties to the said inden- ture of the second and third parts granted license to your orator to manage and conduct his business affairs and concerns under the inspection of the said parties thereto of the second part. And that the moneys and securities for money to be received in such business should be paid and applied in manner therein mentioned for the w. F. and H. benefit of the said creditors. And your orator further showeth unto F. defendants, your lordship that in and before the said year 1816 W. F. and H. P. the'^'iaintiff *^° °^ ^^^ defendants thereto carried on the business of in part- who executed nership together under the style or firm of F. and Co. And that in the the deed. *said month of . 1816 the said W. F. and H. F. were creditors of [ *35 ] your orator for the sum of £8854 lis. 8d. in respect of which they duly signed and executed the said indenture as parties thereto of the third part. And that the said indenture was in like manner exe- piaintiff con- cuted by all the other creditors of your orator. And that your ducted his orator carried on managed and conducted his said business under business un- ^j^^ control and direction of the said inspectors. And that in pur- troi of the in- suance of the provisions contained in the said indenture dividends spectors. Were paid by the said inspectors by and out of the moneys arising Dividends to out of the Said business to your orator's creditors to the amount t*^®.^™"^"*"*^ altogether of 5s. in the pound upon their respective debts. And pound paid by t^** JO'^i' orator finding that he could not by his utmost exertions the inspectors, enable himself to pay all his said creditors the full amount of their Plaintiff ap- respective debts applied to and requested his said creditors to accept ^'' d^t*° ^f ^ *^^^ *^® ™™ °^ ^^^' ^° *^® pound, (inclusive of the dividend accept 10s. iu already received by them) upon their respective debts in full dis- the pound, charge of the same debts respectively. And that all the other who ^H con- creditors were willing to comply with the said requests if the said defendants w. ^' ^- ^^^ ^- ^- would also comply therewith. And the said W. F. and H. F. F. and H. F. upon being applied to by your orator as aforesaid would agree offered and proposed to execute any deed whereby they should ap- t ereto. ^^^j. ^^ accept the said composition of 10s. in the pound in full dis- ap'pHedto^fhe ^^^.rge of their debts and to release your orator from such debts on defendants w. the payment of such composition provided your orator would in the P. and H. F. first place secure them an . additional payment of .£1000 by giving elecute'iny *^®™ ^ promissory note for that sum. And your orator further deed whereby showeth that your orator was in very embarrassed circumstances and they should altogether unable to pay his creditors in full and unable to prevail cept^To«*°in*'' °'^ ^'^ Other Creditors to accept the said composition without making the pound i* appear that said W. F. and H. F. also accepted the same. And upon having that your orator was apprehensive that an engagement to pay the an additional gum of £^000 to the Said W. F. and H. F. would make him less able BILLS OF EXCHANGE, BONDS, ETC. 35 to pay the composition to the other creditors and therefore en- payment of deavored to prevail on the said W. F. and H. F. to accept the said jg°5her°""'"^ composition in common with the said other creditors but that the said _,, W4-, 1 TT -r-i -11 ■ 1 , ■ .1 •^ The circum- . J^ . and Jti. i^ . still required your orator to give the said pro- stances under missory note and positively refused to accept the said composition which plain- on any other terms, and on the day of 1819 wrote and tiff gave them sent a letter to S. A. which is in the words or to the effect following ^ote'for'iooor (that is to say :) [^Offering to execute the deed on plaintiff's deliver- ing his note for JlOOO, and the composition notes as agreed upon, and requesting to know if Mr. A. was authorized to complete the arrangement.^ And your orator further showeth that the said pro- missory note was then or soon afterwards delivered unto the said defendants who at the same time promised that they would not en- force payment of the said promissory note until your orator had paid the full amount of the said composition to all his other credi- tors ; and that under such circumstances your orator was prevailed upon to make and deliver and he did accordingly make and deliver to the said W. F. and H. F. his promissory note for .£1000 and inte- rest and that thereupon the said W. F. and H. F. executed the indenture which is hereinafter mentioned to bear date the day of 1819. And your orator *further showeth that notwith- [ *36 ] standing the matters last aforesaid the said W. F. and H. F. gave Eepresenta- out and represented to the other creditors of your orator that they ^^°^^ ^y ^- ^■ had agreed to accept the said composition and that in consequence ^^^ other cre- thereof the said other creditors agreed to accept the same, and that ditorg that thereupon a certain indenture bearing date the said day of they had 1819 and made between your orator of the first part, the said T. J. ^f rthe^com- R. T. M. and G. R. of the second part, and the several other persons position, whose names and seals were thereunto subscribed and affixed by Indenture of themselves or their respective attorneys agents or partners and being release execu- respectively creditors of your orator of the third part, was exe- cuted by your orator and all his creditors and amongst others by the said W. F. and H. F. and that thereby after reciting amongst other Recital of things to the effect that all your orator's creditors having investigated agreement to your orator's accounts and ascertained the truth and fairness of his f'^'^^P' lOj/a lie 11 1 1 c-in-i 1 t"6 pound in- statement had lully agreed to accept the sum oi 10s. in the pound elusive of the (inclusive of the dividend already received by them upon their re- 5«. already spective debts in full discharge of the same debts respectively, and P*'?' ,"^®7^T that it hath been agreed that the said further payment of 5s. should ^^^^ ^y three be paid as follows (that is to say :) 2s. in the pound to the said credi- instalments. tors on their respectively executing the said deed, 2s. in the pound in nine months after the execution thereof, and the remaining Is. in the pound in fifteen months after the execution thereof, and that your orator had accordingly paid the said 2s. in the pound agreed to be paid on the execution of the said indenture and had given his • promissory note for the payment of the remaining 3s. in the pound at the times aforesaid, It was witnessed that your orator covenanted to pay to the said creditors respectively the said remaining 3s. in the pound at the respective times therein mentioned. And it was further witnessed that for and in consideration of your orator having paid unto all and every of his said creditors parties to the said indenture 36 BILLS TO CANCEL AGEBEMENTS. ♦ at or upon their execution thereof the sum of 2s. in the pound upon the said respective debts as aforesaid in addition to the dividend of 58. in the pound before paid to them under the provisions of the said indenture of the day of 1816 the payment and receipt whereof they the said several creditors thereby respectively acknow- ledged, and also in consideration of the remaining sum of 3s. in the pound upon their said respective debts the balance of the aforesaid composition thereinbefore by your orator covenanted to be paid to them respectively or to their respective executors or administrators by the instalments at the times and in the manner thereinbefore men- tioned in full satisfaction and discharge of the said several debts, all and every the several creditors of your orator who by themselves or other persons duly authorized by them had signed sealed and exe- cuted the now stating indenture did and each of them did as well for himself respectively as for his and her respective executors and ad- ministrators and also for his and her respective partner and partners in trade (subject nevertheless to the proviso therein and herein men- Release to the tioned) remise release and forever quit claim unto your orator his plaintiff. executors and administrators all and all manner of actions suit and [ *37 1 suits cause and causes of action or suit bills bonds writings *obli- gatory debts dues accounts reckonings sum and sums of money judg- ments executions extents quarrels covenants contracts controversies trespasses trusts and all breaches thereof claims and demands what- soever both at law and in equity or otherwise howsoever which against your orator his executors or administrators they the said creditors or any of them or their or any of their executors or adminis- trators then had or thereafter could should or might have claim challenge or demand for or by reason or means of all and every or any of the debts then due and owing to them respectively from or by your orator or of any interest exchange or commission due or de- mandable for the same or of any other cause matter or thing what- soever from the beginning of the world up to the day of the date of the now stating indenture. And the said several creditors of your orator parties to the now stating indenture who by themselves or other persons duly authorized by them respectively in that behalf had executed the now stating indenture did thereby for themselves severally and respectively and for their several and respective heirs executors and administrators and also for their several and respective partner and partners in trade but not one of them for the other or others of them or for the acts or deeds of the partner or partners of the others of them respectively but each and every of them for him- self and herself and for his and her own acts and deeds executors and administrators and for the acts and deeds of his and her own partner or partners only did thereby covenant promise and agree with and to your orator his executors and administrators, that they the said several creditors of your orator parties to the now stating indenture or their respective partner or partners in trade or the heirs executors administrators or assigns of them or of their respective partners or any of them should not nor would at any time, or times thereafter commence or prosecute any action or actions suit or suits at law or in equity or institute any other process or proceeding against your BILLS OF EXCHANGE, BONDS, ETC. 37 orator his heirs executors or administrators or make any attachment of or upon his or their estate or effects for or by reason of any debt or debts then due and owing by your orator to them or any of them. And in case any of them the said creditors parties thereto or their or any of their heirs executors administrators or assigns or any part- ner or partners in trade of them or any of them or the heirs execu- tors administrators or assigns of any such partner or partners should commence or prosecute any such action attachment or proceeding contrary to the true intent and meaning of the now stating indenture that then and in such case your orator his heirs executors or adminis- trators should and might plead the now stating indenture as a general release in bar of every such action suit attachment or other proceed- ing and which should so operate and be construed and taken accord- ingly : Provided always nevertheless and the now stating indenture (so far as the same related to the general release thereinbefore contained) was upon this express condition that your orator his executors or administrators did and should well and truly pay or cause to be paid unto his said several creditors parties to the said indenture or to their respective executors or administrators the said remaining sum *of 3s. in the pound (the balance of the aforesaid composition) upon [ *38 ] their said several and respective debts so due and owing to them re- spectively from and by your orator as aforesaid by instalments at the times and in the manner thereinbefore expressed in that behalf according to the covenant thereinbefore contained for that purpose and the true intent and meaning of the now stating indenture. As in and by the said last-mentioned indenture reference being there- unto had when produced will appear. And your orator further Payment of showeth unto your lordship that at the time of the execution of the t^^e three in- said indenture your orator duly paid to all his creditors who executed fif^e^^credi- the same the sum of 2s. in the pound upon their respective debts tors except and that your orator afterwards paid the said W. F. and H. F. and the trustees of to all his other creditors who executed the said indenture (except ^^rria^'^ J. L. and Gr. J. P. who executed the same as creditors of your orator tiemeut. in trust for your orator's wife under a settlement the remaining sum of 3s. inthe pound as convenanted by your orator in the said inden- ture.) And that upon such payment your orator became entitled to W. F. and H. the benefit of the said release but that nevertheless the said W. F. F- require and H. F. in or about the day of 1819 called upon and [hJToooV^ required your orator to pay the said promissory note for ^£1000, and note. your orator being unable to pay the whole thereof and being unaware that the said promissory note was void and of no effect as having been given to the said W. F. and H. F. in preference to the other creditors of your orator who executed the said indenture, consented gggz. part to pay and did pay and allow in account the sum of £500 being one thereof ailow- moiety of the sum for which the said promissory note was given ^-^ by plaintiff together' with the interest on the said sum of £1000, and that your ^;fh thefuter- orator at the same time accepted a bill of exchange which was drawn est due, and a by the said W. F. and H. F. on your orator for the sum of £500 (the new bill of ex- remainder of the said sum of £1000) which was made payable at f^'^ZJ^^'^ three months after date and which hath from time to time been for the re- renewed. And that thereupon the said W. F. and H. F. cancelled mainlng 500i. 38 BILLS TO CANCEL AGKEEMENTS. the said promissory note for £1000 and they at the same time pro- mised and agreed that they would not call upon your orator for payment of the said bill of exchange for ^6500 but that the same should be renewed from time to time with interest till the said trustees for your orator's wife and all other your orator's creditors In oonse- had received the full amount of the said composition. And your quence of the orator further showeth unto your lordship that in consequence of thJToo* °^ '^®^°g compelled to pay the said sum of £500 and such interest as plaintifif was aforesaid to the said W. F. and H. F. your orator was unable to unable to pay pay the Said composition to the said trustees for your orator's wife the ™stal- g^j. ^]jg timgg limited by the said indenture and when the said other trustees of his creditors were paid but that your orator lately collected the sum of marriage set- £287 lis. 9d. which was in the hands of H. M. (another defendant tlement, but hereto) in the city of London. And your orator intended to pay the lectei28ll. in same to the said trustees in part satisfaction of the instalments which the hands of have for a considerable time been due to them in respect of the said H-M. with the composition. But that the said W. F. and H. F. have lately pro- p"a*riiig:°t'he ceeded by process of foreign attachment under an action brought by same to the them in the court of the Lord Mayor of the city of London against r *39 1 **^® said H. M. to attach the money belonging to your orator in his trustees de- hands. And the said H. F. hath alleged that your orator is in- fendants w. debted to him and the said W. F. in the sum of £541 19s. on the P. and H. F. gg^jfj ^m ^f exchange, and the said W. F. and H. F. threaten and the 287^. in intend to proceed upon the said attachment to compel the said H. M. the Lord to pay the said sum of £287 lis. 9d. to them in part satisfaction Mayor's Court, of the Said alleged debt, and the said H. M. intends to pay the same to them accordingly. And your orator further showeth that the sum of £541 19s. is the amount principal and interest of the said bill of exchange which was accepted by your orator as aforesaid for the said sum of £500 part of the sum of £1000 for which your The promis- Orator gave the said promissory note as aforesaid ; and that such sory note for promissory note was obtained from your orator by fraud and was not edb* ^ f°*'*d"^' ^^^^^f ^^^ *^^* *^^ said bill of exchange was accepted by your orator under the circumstances aforesaid in respect of a debt due from him to the said W. H. and H. F. before the execution of the said in- denture of the day of 1819 and not in respect of any debt subsequently incurred, and that the said W. F. and H. F. having released your orator as aforesaid ought not now to be permitted to proceed against your orator or his eifects for the recovery of the said debt, but that by reason of the said bill of exchange being dated Plaintiff un- after the said release your orator is unable to avail himself at law of ^h^*d*° "d"* *^® ^^^^ release to resist the demand of the said W. F. and H. F. law. ™ ° upon the said bill of exchange, or to prove that the said bill of ex- change was accepted by your orator on account of a debt which was . . due before the said release was executed and which was covered to^w'^p!°and tliereby. And your orator being advised that the said W. F. and H. F. to repay H. F. having executed the said indenture and thereby agreed to them 5002. and accept the said composition had no right to claim any other debt ceedfngsra ^^^^ ^^^ *° ^™' ^^^ ^^^^ *^* ^^^^ ®"™ °^ ^^^^ ^^^ ®'^°^ interest the attach- ^^ aforesaid were erroneously paid, hath requested them • to repay ment. the sum of £500 and interest and to cease their proceeding on the BILLS OF EXCHANGE, BONDS, ETC. 39 said attachment and to deliver up the said bill of exchange for the principal sum of £500 and the interest added thereto to be cancelled, and your orator hath also requested the said H. M. not to pay over Applications the said sum of £287 lis. 9d. now in his hands as aforesaid, and *°^'?^'o3^/° your orator was in hopes that his said requests would have been "^^^ complied with as ought to have been the case. But that the said W. F. and H. F. acting in concert with the said H. M. and other IV. persons unknown to your orator refuses to comply with such re- Refusals, quests and the said W. F. and H. F. pretend that the said bill of Pretence that exchange was accepted for a new and valuable consideration arising i^^e *>!!' of ex- since the said release was executed. Whereas your orator charges -jy "jf fo^'^a the contrary and that the said principal sum of £500 for which the new conside- said bill of exchange was given to which the interest hath been added ration, was part of the said sum of £1000 which the said W. F. and H. F. Charge the stipulated for at the time when they executed the said indenture j °°g'^^'^''' *° ^ and thereby agreed to release your orator on payment of the said composition, and that so the truth would appear to be if the said defendants would as they ought to do set forth a full true and par- ticular account of the circumstances and consideration for which your orator *accepted the said bill of exchange and gave the said [ *40 "] promissory note, but which they refuse to do. And under the cir- cumstances aforesaid your orator charges that the said W. F. and H. F. ought to be restrained from proceeding on the said attachment to enforce payment of the money belonging to your orator in the hands of the said H. M. and that the said H. M. ought to be re- strained from paying over such money to the said W. F. and H. F. But at other times the said W. F. and H. F. threaten and intend to Defendants negotiate or part with the said bill of exchange or place the same in intend to ne- the hands of some third person who may sue your orator for the ^?-^y^ ^ ® money thereby purported to be made payable. And your orator charges that they ought to be restrained from so doing. In con- sideration whereof and forasmuch as your orator can only have ade- quate relief in the premises in a court of equity where matters of this nature are properly cognizable and relievable. To the end therefore, that &c. [see form VI. p. 5, interrogating to the stating interrogato- part and proceed thus :] And whether your orator hath not and 'ies. when made or caused to be made such applications and requests as aforesaid or some and what other applications and requests to the said defendants or to some or one and which of them ; And whether they or some or one and which of them have or hath not refused to comply therewith and why ; And whether the said principal sum of £500 for which the said bill of exchange was given was not part of the said sum of £1000 which the said W. F. and H. F. or one and which of them stipulated for at the time when they executed the said indenture and thereby agreed to release your orator on payment of the said composition or how otherwise ; And that the said defendants W. F. and H. F. may set forth a full true and particular account of the circumstances and consideration for which your orator gave the said promissory note and accepted the said bill and bills of exchange respectively and of what particular or particulars such consideration and each and every part thereof consisted ; And whether the only 40 BILLS TO CANCEL AGEEEMBNTS. real and bona fide valuable consideration for the same did not consist of a debt owing to the said defendants by your orator before the date and execution of the said indenture of release ; And that the said defendants may answer and set forth Whether the said W. E. and H. F. or one and which of them ought not to be restrained from proceeding on the said attachment to enforce payment of the money belonging to your orator in the hands of the said defendant H. M. or any and what part thereof or how otherwise, and if not why not ; And whether the said defendant H. M. ought not to be restrained from paying over such money or any and what part thereof to the said defendants W. F. and H. F. or either and which of them or how otherwise, and if not why not ; And whether the said defend- ants ought not to • be restrained from negotiating or parting with Prayer. the said bill and bills of exchange, and if not why not. And that upon a full and perfect discovery of the matters aforesaid the said bill and bills of exchange may be delivered up to be cancelled ; and that the said defendants W. F. and H. F. may be restrained by the order and injunction of this court from any further proceedings on the said foreign attachment against the said H. M. to recover pay- [ *41 J *ment of the said sum of ,£287 lis. 9cZ. belonging to your orator as aforesaid, and from commencing any action or proceeding at law against your orator touching or concerning the matters aforesaid or any of them ; and that the said H. M. may be restrained from pay- ing over the said sum of .£287 lis. ^d. or any part thereof to the said W. F. and H. F. or either of them ; and that the said defend- ants W. F. and H. F. may be in like manner restrained from nego- tiating or parting with the said bill of exchange ; and that your orator may have such further and other relief in the premises as the nature and circumstances of this case may require and to your lord- ship shall seem meet. May it please your lordship, &c. [see forms No. 1, and 4, page 6.] Pray subpoena and injunction against W. W. H. F. and H. M. Observations on the above bill by the learned counsel who drew it : The defendants will not be restrained by the common injunction from proceeding on the attachment against Mr. M. the garnishee. It will be necessary to make a special motion on the answer or on affidavit after the time for answering is out, and under all the circum- stances it is far from clear that the injunction can be had at all. If the facts can be proved the defence is good at law, and Mr. H. should avail himself of it. BILLS OF EXCHANGE, BONDS, ETC. 41 XIV. Bill to have a bond and other securities cancelled, which the plaintiff in order to procure his discharge from an arrest had exe- cuted to the defendant in lieu of former securities given formoney won at play ;(3) praying also for an injunction to restrain the de- fendant from proceeding at law, and from entering up judgment on a warrant of attorney. The plaintiff 0. some time in or about, &c. was in company with T. B. of, &c., the defendant hereto at the house of one Mr. D. in, &c. and dice being introduced plaintiff sat down to play with dice with the defendant, and thereupon the defendant at such meeting won of plaintiff by playing at dice the sum of £ , and plaintiff being afterwards and in or about, &c. indebted to the said defendant in a sum of money for clothes which the defendant had made for plaintiff *and another person at the instance and request of plaintiff, and the [ *42 ] said defendant having satisfied and discharged the debt and costs in- curred in an action at law in which he had been bail jointly with plaintiff, defendant caused plaintiff to be arrested, and held to bail in an action at law for recovery of the money due to him as afore- said for clothes, and plaintiff being at that time unable to pay or to advance the same, defendant proposed and offered to drop the said suit, and to discharge the said arrest in case plaintiff would enter into and execute a bond or obligation to him the defendant conditioned for the payment as well of the said sum of £ won by him at dice as aforesaid, as also of his said other demands amounting to the sum of £ in the whole ; and accordingly plaintiff was prevailed upon to execute, and did actually execute a bond or obligation bearing date, &c. conditioned for the payment to the defendant of the sum of £ by instalments at the several days and in manner therein mentioned. That part of the consideration of the same bond or obligation was the said sum of £ won by the said defendant of plaintiff by play- ing at dice as aforesaid. That on or about, &c. last, defendant applied to plaintiff and pro- posed to deliver up the said bond for 1, upon plaintiff's entering into and executing in lieu thereof a new bond or obligation to the said defendant in the penalty of 1, conditioned for the payment of the said sum of 1, by instalments at two equal payments, and (3) Where the plaintiff had given a bond for money lost at play, and afterwards paid part of the amount, the Court ordered the money to be repaid, and granted re- lief against the bond. Mawdon v. Shadwell, Ambl. 269 ; sed vide Bosanquet and Dashwood, Ca. temp. Talbot, p. 41. In the case of Graves v. Soulditch, 2 Price, 147, where the plaintiff had suffered judgment to go by default in an action on a bill accepted by him in favor of the defendants, upon their giving up a former bill of exchange indorsed by the plaintiff, and which had been accepted in consideration of a gambling debt, the Court refused a motion for an injunction, as the plaintiff might have had the same defence at law on the second as on the first bill, if he had not suffered judgment to go by default. The right given to the loser by the 9th Anne, c. 14, to sue for money lost at play is a vested interest, and passes upon his bankruptcy to the assignees. Brandon v. Sands, 2 Ves. jun. 514. 42 BILLS TO CANCEL AGREEMENTS. also a warrant of attorney to confess judgment thereon, and upon plaintiff's giving and subscribing two promissory notes for the pay- ment of 1, each, the one due at Christmas next and the other at Christmas in the year and also another promissory note for the payment of 1, for the interest thereof, and thereupon plaintiff at the entreaty of the defendant did execute to him a bond or obliga- tion bearing date, &c. in the penalty of 1, or some other con- siderable sum of money, with condition thereunder written for the payment to defendant of the sum of 1, with interest at the end of two months from the date thereof, and of the further sum of — —I. and interest at the end of five months from the date of the same. And plaintiff also at the same time executed a warrant of attorney to confess judgment in his Majesty's Court of K. B. at W. on the last-mentioned bond ; and plaintiff also then gave and subscribed to the defendant a promissory note for the payment of the further sum of 1. at Christmas next, and another promissory note for the payment of the further sum of 1, at Christmas in the ensuing year, and also a promissory note for the payment of 1, on ac- count of interest of the said sums. As by, &c. That the last-mentioned bond, warrant of attorney and promissory notes were entered into and executed by plaintiff, in lieu of the first mentioned bond for the payment of the sum of 1., and without any other consideration paid or given to plaintiff by the defendant, save the delivering up of the same bond for 1. That soon after the first payment on the said bond for 1, be- came due, he the said defendant entered up judgment on the same r *43 1 bond in pursuance of the said warrant of attorney, in the *court of K. B. and on or about, &c. defendant sued out a writ of capias ad satisfaciendum on the said judgment, and plaintiff was taken in exe- cution thereon for the penalty of the said bond being the sum of L, and plaintiff being in custody of the said execution, defend- ant on the day following offered and agreed to release plaintiff from the said execution, if plaintiff would draw a bill of exchange on T. B. junior esq. for the sum of 1. then due upon the said bond pay- able in fourteen days, and procure him the said T. B. to accept the same bill ; and if plaintiff and the said T. B. would also enter into and execute a warrant of attorney to confess judgment for the sum of 1, to which plaintiff in order to procure his discharge out of custody consented, and accordingly plaintiff drew a bill of exchange on the said T. B. requiring him to pay to the defendant or order the sum of 1, after fourteen days from the date thereof, being the first payment which had become due on the said bond for 1., and plaintiff together with the said T. B. at the same time entered into and executed a warrant of attorney to confess judgment in his Ma- jesty's Court of K. B. to the said defendant in the sum of L, and the said defendant or J. D. his attorney subscribed an acknowledg- ment that the same was given as a security for the payment of the said bill of exchange, and that judgment was not to be entered upon the said warrant of attorney until the said bill became complete. As by, &c. The plaintiff is advised that the securities given and entered into BILLS OB EXCHANGE, BONDS, ETC. 43 by plaintiff as aforesaid are all null and void, and ougbt to be de- livered up to plaintiff and cancelled and vacated, the consideration for the same being to secure the sum of 1, so won by defendant at playing at dice as aforesaid ; and plaintiff hath frequently applied to the defendant and requested him to deliver up the several securi- ties as aforesaid so entered into by plaintiff as aforesaid ; and plain- tiff well hoped, &c. But now so it is, &c. [see form IV. p. 6.] The said defendant insists upon the benefits of all the aforesaid secu- rities, and threatens in case the said bill of exchange is not paid on the day the same is made payable that he will enter up judgment on the said warrant of attorney so executed by plaintiff and the said T. B. and sue out execution thereon ; and that he will also com- mence actions against plaintiff on the several other securities given and entered into by plaintiff as aforesaid to recover the moneys men- tioned therein respectively, sometimes pretending that all the secu- rities were given for a good and valuable consideration bona fide paid by defendant to plaintiff, and that no part of the consideration there- of was for money won at dice or any other play. Charge the contrary to be true, which defendant at times admits, but Pretends that although part of the consideration of the first men- tioned bond was for the sum of guineas won by him at dice as aforesaid, yet as such bond was afterwards delivered up to plaintiff and such new securities entered into by him as aforesaid in lieu of the former, the said bond for £ and warrant of attorney to con- fess judgment thereon, and also the said promissory notes given by plaintiff were to be considered as distinct and independent securities * and given for a good and valuable consideration, and are not void [ *44 ] within the meaning of the stat. 9 Ann. c. 14, and therefore that the defendant hath a right to the benefit thereof, and to receive the money mentioned therein. Charge that the said bond for 1, and the warrant of attorney to confess judgment thereon, and also the said promissory notes were given, as the fact is, by plaintiff in lieu of the first-mentioned bond, and for no other or different consideration, that they are equally null and void, and ought not to be put in force against plaintiff, part of the consideration for the same being the money won by defendant of plaintiff at playing with dice as aforesaid. All which actings, &c. [see form VI. p. 6, interrogating to the stating and charging parts.'] That the said bond so executed by plaintiff to the said defendant for the payment of the said sum of 1, and the said warrant of attorney to confess judgment thereon) and also the said promissory notes so given and entered into by plaintiff to the said defendant, and all other the securities entered into and executed by plaintiff to the said defendant in manner and for the consideration aforesaid, may be declared null and void, and that the same may be delivered up to plaintiff to be cancelled. And that in the mean time the said defendant may be restrained by the order and injunction of this honorable court from commencing or prosecuting any action or ac- tions at law against plaintiff upon the said securities or any of them, 44 BILLS TO CANCEL AGREEMENTS. and also from entering up judgment on the said warrant of attorney executed by plaintiff and the said T. B. or from commencing any proceedings thereon. [And for further relief, see form VIII. p. 5.] May it please, &c. [see forms No. 1, and 4, p. 6.] J. K. [ *45 ] **XV. Bill hy two merchants, partners, against several merchants, partners in different firms, who had formed a special partnership together for dealing in spelter, and having purchased or con- tracted for all the Silesia spelter which could be furnished from the mines during the year, afterwards by their brokers, {who concealed the names of their principals) entered into several contracts with the plaintiffs and many other persons, for the purchase and de- livery of Silesia spelter at various times when none could be pro- cured except from the defendants or their agents, and at very ex- orbitant prices. Charging that the defendants caused some small quantities to be bought and sold by their agents, for the purpose of obtaining a statement of artificial prices ; — the brokers are made parties defendants, being charged with having participated in the profits, and as having an interest in the contracts entered into with the plaintiff s ; — The prayer is, that the contracts entered into with the plaintiffs may be declared to have been obtained by fraud, and may be delivered up to be cancelled, — for an injunctioa to re- strain proceedings at law, and that the defendants may pay the costs of the suit. In the exchequer. To, &c. Humbly complaining show unto your honors your orators X. Z. of, &c. and Y. Z. of, &c. debtors and accountants, &c. \see form No. 2, p. 2.] That a certain mineral substance called spelter is and for . some years past has been produced from the mines of S. and has for producedfrom about seven years last past been sent in considerable quantities to certain mines this country for the purpose of being afterwards exported to I. and in limited gg]^ there for consumption, and that the quantity of spelter annually nuaiiy ^and"' produced from the said mines is limited, and the amount thereof has not usually not usually exceeded tons or thereabouts in each year, and the exceeding a quantity imported into this country and afterwards exported to I. certain price. -^^^ usually amounted to tons or thereabouts in each year, and the price thereof in this country has for some years past ranged from about 20Z. or thereabouts to 24L or thereabouts per ton, and except on one occasion when the importation was prevented by frost and thereby the price was raised to 30Z. per ton or thereabouts, the price has not till within the last year and in consequence of the circum- stances herein stated on any occasion exceeded the said sum of 242. per ton, and that the said quantity usually produced in each year «IDS, ETC. 45 from the said mines as aforesaid and the said price thereof hath been and is well known to all persons dealing in spelter, and particularly to the defendants hereinafter named. And your orators further That certain show unto your honors that in the beginning of the year and °^ ^^^ defend- long previously to that time, A. B. and C. D. two of the defendants on'busTneL hereto carried on business in the city of L. in partnership together under three under the firm of , and that during the same time E. F. and G. different H. two other defendants hereto carried on business in L. in partnership ♦together under the firm of , and that during the same time I. K. [ *46 ] and L. M. two other defendants hereto carried on business as T^attlie three merchants in the city of L. in partnership together under the firm firms were in of , and that the said three firms had respectively considerable the habit of mercantile dealings with persons residing in I., and the said I. K. Pi'''='^'^sing and L. M. had been and were in the habit of purchasing spelter in exporting the this country and of exporting the same to I. for sale and consumption same, and there ; And that in or about the beginning of the year the *'^' ^^"^ said defendants A. B. C. D. E. F. G. H. I. K. and L. M. well know- c°Tpartner!" ing as the fact is that the market in I. was overstocked with spelter ship together and consequently that it was difficult to obtain good prices for spelter '°'' dealing m in this country and that persons in the habit of dealing in spelter concerteTa would be glad to enter into contracts for the sale thereof if good scheme to prices were ofi"ered, formed a special partnership together for dealing raise money in spelter, and they concerted a scheme to raise money by fore- fL^sumJo- n stalling and secretly engrossing or contracting for all the spelter the quantity which could be found or contracted for, and after they had entered which could into contracts for the delivery of such spelter to themselves at early ^® procured. periods, fraudulently entering into other contracts for the purchase of large quantities of spelter to be delivered to themselves at later periods from persons who could only obtain the same from them or persons employed by them and at such prices as they should dictate, and that in pursuance of such scheme the said several persons who are defendants hereto by themselves or their brokers or agents some time before the month of May covertly employed several persons Accordingly in this country and also in S. H. and other places abroad, to purchase ^^^ defend- all the Silesia spelter which could be obtained or contracted for at ^"*^ employed i-TT T ■ 11 agents in iing- prices which accordmg to the usual rates were good prices, and that land and a- accordingly such spelter to the full amount of all that could be pro- broad to pur- duced from the mines of S. during the year was purchased by or ^^^^ *^' J'''® on the behalf of the said defendants, and none or very little could be which could found in the market or obtained in this country otherwise than from be obtained. the said defendants, or persons who were covertly employed by them and acted in an under-hand manner as their agents or on their be- half; and that the said defendants A. B. C. D. E. F. G. H. I. K. and And after- L. M. having by such means as aforesaid engrossed or contracted for pioyed\™'o of all the spelter which could be found or contracted for in S. or in H. or the defend- ■this country and elsewhere, in further pursuance of the said scheme ants, brokers, employed A. M. and T. M. who carry on business together as brokers ^jth* merch under the firm of M. and Co. and- who are also defendants hereto, as ants in Eng- theirbrokerstocontractforthepurchaseof spelter on their behalf from land for the a great many merchants and others in this country, and in such con- purcliase and tracts it was to be stipulated that the spelter comprised therein was to spelter'at 46 BILLS TO CANCEL AGREEMENTS. times when be delivered to the buyers in and after the month of August , and none could be " " ■ — - . - - - - obtained ex- cept at prices dictated by the defend- ants. r*47] First contract with the plaintiffs. Second con- tract with the plaintiffs. at times when it was well known to the said defendants that ^ter such practices as aforesaid such spelter could not be obtained in the usual course of mercantile dealings, and that if the same could be obtained at all it could only be from persons who held the same for or on the behalf of the said defendants and at prices dictated by them. And your orators further show unto your honors that accordingly the said M. and Co., by the directions of the said other defendants and on their behalf but without disclosing their names, applied to a great number of persons who were entirely ignorant of the several matters ^aforesaid, and entered into very many contracts with such persons for the purchase of Silesia spelter which could not be obtained other- wise than as aforesaid, and such contracts were entered into not for the purpose of having the same properly fulfilled in a fair mercantile course of dealing, but with the view and design of fraudulently com- pelling the persons who had contracted to sell Silesia spelter to pur- chase the same at a most exorbitant price from the said defendants or their agents, or pay differences of large amount to the said de- fendants. And your orators further show unto your honors that on or about the 6th day of May the said M. and Co. as the brokers or agents of the said other defendants but without disclosing their names applied to your orators and proposed to purchase from them < tons of Silesia spelter at ,£24 a ton to be delivered from the 1st to the 31st day of August then next, and other tons of Silesia spelter at £23 10s, a ton to be delivered from the 15th day of October to the 30th day of November then next, and that your orators being entirely ignorant of the matters aforesaid and conceiv- ing that they were deaiing with the said M. and Co. in the fair and usual course of trade and that they should be able in the usual course of trade and at the usual prices to procure and deliver the quantity of Silesia spelter proposed to be purchased as aforesaid agreed to sell the same, and that thereupon the said M. and Co. wrote and sent to your orators two brokers' letters contracts or sale notes, one of which was in the words and figures and to the eff'ect following (that is to say): "London 6th May . Messrs. Z. gent. We have sold for your account to our principals at £24 per ton, tons of good merchantable Silesia spelter, which quantity of spelter is to be delivered and received from a landing scale or warehouse (in your option) within the port of L. not sooner than the 1st nor later than the 31st day of August next to be paid for in cash without dis- count within fourteen days from the date of delivery ; ■ should any dispute arise on this contract the same to be settled by arbitration. We are gents, your faithful and obedient servants M. and Co. bro- kers; " And the other of which letters or contracts was in the like words and figures, save that the tons of spelter therein men- tioned were stated to be sold at the price of £23 10s. per ton and the same were agreed to be dehvered not sooner than the 15th day of October nor later than the 30th day of November then next ; and that on or about the 9th day of May the said M. and Co. acting as aforesaid by the direction and on the behalf of the said other de- fendants but without disclosing their names proposed to your orators BILLS OF EXCHANGE, BONDS, ETC. 47 to purchase for their principals other tons of spelter at the price of £24 per ton to he delivered not sooner than the 15th day of October nor later than the 30th day of November then next, and that your orators in like manner and under the circumstances afore- said contracted to sell such other tons of Silesia spelter at such times and at such price as aforesaid. And your orators further show Plaintiffs were unto your honors that your orators were entirely ignorant who were ignorant who the principals on whose behalf the said contracts were entered into, r^^''^* epmi- 11 !• 1-1-1 1 cipals on but that your orators having entered into the said contracts and whose behalf being desirous to fulfil the same wrote to their correspondents at H. the contracts to *purchase Silesia spelter in order to the fulfilment of the said con- [ *48 ] tracts, and that your orators soon afterwards discovered, as the fact were entered is, that all the spelter produced or likely within the year to be i°'°i ^^^ '° . produced from the mines of I. and which had been usually supplied theiTcon-" ' to the markets at H. and elsewhere had been forestalled and already tracts, wrote contracted for, and that no Silesia spelter could be obtained except to their agents at very exorbitant and extravagant prices, and that such exorbitant to purchase prices arose from the whole of the Silesia spelter which would other- when they ' wise have been in the market having been engrossed by some per- discovered sons who were at that time unknown to your orators, but who that the whole refused to sell the same otherwise than at prices dictated by them- wMch could selves. And your orators further show unto your honors that your be supplied orators being under the circumstances aforesaid wholly unable to ^^^ ^^^ procure spelter for the fulfilment of their said contracts otherwise ™e°n for^. than at very great loss, and being desirous to communicate in re- stalled. spect thereof with the principals on whose behalf the same had been Plaintiffs ap- entered into, applied to the said M. and Co. for the names of such P'i^^ to the principals, whereupon the said M. and Co. to the great surprise of ^^° nameTof your orators refused to inform your orators who the said principals their princi- were and at the same time stated that it was immaterial to your P^ls, which orators who the principals were for that the money would be ready and Jq^^ the spelter would be expected to be delivered at the times contracted for or to that effect. And your orators further show unto your plaintiffs dis- honors that your orators discovered and the fact is that the said covered that M. and Co. as brokers for principals whose names were not disclosed ?J^® brokers had entered into a great many contracts with many other persons into many for the like purchase of Silesia spelter to be delivered at or about other similar the same times with the spelter comprised in the said contracts contracts, with your orators, and that such other persons had been for the reasons aforesaid unable to complete their contracts, and were called upon to pay differences computed upon the exorbitant price to which Silesia spelter had been raised as aforesaid ; and that under the circumstances aforesaid and being unable to obtain the names of the principals in the said contracts, your orators conceived that the same had been entered into in pursuance of a fraudulent scheme and refused to and did for that reason inform the said M. and Co. that they did perform their not conceive themselves bound by the said contracts. And your piaintiffshave orators further show unto your honors that they have since discovered, since discov- md the fact is, that the said defendants A. B. C. D. E. F. G. H. e^d that the I. K. and L. M. were the principals on whose behalf the said con- ^ ^^ Tre the tracts were entered into by the said M. and Co., and were the persons principals, 48 BILLS TO CANCEL AGREEMENTS. by or on whose behalf the whole of the Silesia spelter which could be obtained or contracted for had been engrossed as aforesaid, so as to make it impossible for your orators and the other persons with whom contracts had been entered into to obtain the same in the usual course of trade or otherwise than from the said defendants or their and charge agents and at most exorbitant prices. And your orators further them with gijQ^ ^.j^g^j. ]3y |.}jg means aforesaid the said defendants A. B. C. D. E. F. tiseil gross ^- H. I. K. and L. M. practised a gross fraud upon your orators and fraud. all the other persons whom they prevailed upon to enter into such contracts as aforesaid ; and that your orators having discovered such [ *49 ] *fraud have frequently applied to the said several persons and re- Applications quested them to deliver up the said contracts to be cancelled ; and to the defend- your orators were in hopes that such requests would have been com- up'the con^^'^ P^'®*^ '^^^^' ^"* ^^^^ *^^ ^^^^ several persons colluding and confederat- tracts. ing with each other, and with the said A. M. and T. M., refuse to IV. comply with such requests, and pretend that the said contracts were Defendants fairly entered into and in the usual course of trade. Whereas your refuse to com- orators charge the contrary ; and that the said defendants who had tend^'tha't^ the ^°^ previously been concerned in partnership together, formed a spe- contractswere cial partnership for the purpose of dealing in spelter, and the terms fairly entered of such partnership were reduced into writing, and are now in the '°'°" possession or power of the said defendants or some one of them ; and conTrary*and *^^* ^^^ ^^^^ defendants formed and executed such fraudulent that they Scheme as aforesaid, and that in the preparation and execution formed a spe- thereof the said M. and Co. were the principal acting parties ; and '^h^ ^h^tT' ^^^^ *^® ^^^^ defendants eollusively and fraudulently agreed together of which were to purchase and forestall all the Silesia spelter which could be" found reduced into in the market or contracted for so as to be delivered within the writing. yga^y ^ a^Q(j ^}jgy secretly employed divers agents both in England That the ^^^^ abroad for the purchase of such spelter ; and that the said de- the principal fendants respectively and more particularly the said M. and Co. cor- seting parties responded with such agents at divers places, (that is to say,) with "^ *iP"^'"!°^ Mr. 0. who was such agent at H., with Messrs. E. who were such , „ ■ agents at H., with Messrs. I. and Co. who Were such agents at B., ants fraudu- ^^^ ^ith divers persons unknown to your orators who were such agents lentiy agreed at Other places. And that in the course of such correspondence to forestall all (jjyers letters were written and received by the said defendants re- the nwket "^ spectively or some of them to and from such several persons, and by and employed such letters which are now in the possession of the said defendants and corres- or some Or One of them, it clearly appears as the fact is that the said divers agents, defendants formed and executed such fraudulent scheme as afore- That divers s^^^- And your orators charge that the said defendants having by letters were the means aforesaid engrossed all the foreign or Silesia spelter which written which could be had, and having enabled themselves either to prevent any dose the%or- sp^^*^'' being bought or to fix their own price for the same, did then mation of the and principally by the agency of the said M. and Co. with the view scheme. and design of defrauding your orators and other persons enter into That the de- the Said contracts with your orators, and into divers other contracts the'view of *^ ^^^^ many Other persons for Silesia spelter to be delivered some defrauding months afterwards, and at times when it was well known to the said plaintiffs and defendants that by their own practices the same could not be ob- BILLS OF EXCHANGE, BONDS, ETC. 49 tained in the fair and open market or in the usual course of trade, oth^r persons or any otherwise than by purchases to be made from the said de- entered mto fendants themselves or from persons who held the same for them, m^^ . . .. And your orators charge that at or soon after the time when the ^ate of such said contracts with your orators were entered into, the said defend- contracts de- ants had in their power or had contracted for all the Silesia spelter feiid^'^ts had which could be obtained or contracted for to be delivered in L. in g° and sm7" the year , and that such spelter except such parts thereof as have, all the the said defendants have covertly disposed of or have succeeded in Silesia spelter selling at such exorbitant prices as aforesaid, hath since been and ^^ procured *now is in the possession or power of the said defendants ; and that except some so the truth would appear to be if the said defendants would, as they small quanti- ought to do, set forth what quantities of Silesia spelter they or any ''®^' other persons by their order or for their use or on their behalf pur- L ^^ J .. ^..J chased or contracted to purchase at any time before or in the several That the same months of May, June and July , to be delivered in the course ^°J^ the^ac- • • of the year , and when and where and from whom and by whose counts re- agency and at what prices and under what contracts they purchased quired. the same, and when and where and how and to whom and by whose agency and at what prices and under what contracts they sold and disposed thereof or of any part thereof, and where and in whose possession or custody such parts thereof as have not been disposed of now are. And your orators further charge that the quantity of That the Silesia spelter purchased or contracted by or on the behalf of the quantity con- said defendants previously to and in the several months of May, thedefendant^ June and July , exceeded the quantity which was and by the exceeded the said defendants was well known to be the whole annual produce of whole annual \ V the mines of S., or exceeded the whole quantity which could be ^(^gs'^^" J jJ brought to market in the said year . And that at the time of rj^^at at the the date of the said contracts the said defendants well knew that by date of the and in consequence of their own practices the Silesia spelter by the contracts de- said contracts agreed to be delivered could not be obtained in the thatlhe^auan^ fair and open market, and could not be delivered at all unless first titycontracted purchased from the persons who held the same for the said defend- for could not ants and at such artificial prices as should be fixed by them ; and ^^ obtained m ,,., ■•! TT 1 the fair and that the said contracts witn your orators and divers other contracts open market. were entered into by the said defendants with the fraudulent view and design of profiting by the disability under which the said de- fendants had themselves previously placed your orators and the other persons with whom the said contracts were entered into of perform- That the con- ing the said contracts in the fair and usual course of trade, and tracts were of compelling your orators either to purchase Silesia spelter from ^ith^aviewof the said defendants at their own artificial price, or of paying the obtaining differences between such artificial price and the prices stipulated payment of for in the contract. And that the said defendants with the view l^^^^ ^'^' and design of making it appear contrary to the fact that some r^^^^ ^^^ ^g, spelter was still fairly in the market and bore a market price, have fendants have caused some small quantities to be bought and sold by different caused small agents on their behalf at L. and elsewhere, but such purchases and ^e bought and sales have been merely colorable and made for the purpose of ob- sold by their taining the statement of artificial prices. And that in consequence agents for the 50 BILLS TO CANCEL AaREEMENTS. purpose of ob- of the said practices of the said defendants Silesia spelter has been ^Item^ent^of ^^^^^^ *° ^^^ ^^^J lately stood at an artificial price of 40?. per ton artificial pri- and upwards. And your orators charge that the demand for spelter ces. is limited, and that the quantity purchased and contracted for by the That the. de- said defendants is more than could be sold in I. or elsewhere for a ter^is Hmited' S'"®^* ^"™^®^ ^^ years ; and that before the said contracts or any and the mar- of them were entered into, the said defendants well knew as the ket overstock- fact is that the market in I. was overstocked with Silesia spelter which ^^- bore a low price there ; and that the said defendants did not in fact [ *51 ] enter into the said contracts or any of them with the intention of That the de- * obtaining spelter for exportation to I. or any fair or usual purpose mjt'^enteMnt °^ *^^'^® ' ^ *^** ^^^ ^^^^ defendants well knowing that the present the contracts price of Silesia spelter is wholly artificial and canriot be maintained, with the Tiew have themselves entered into contracts for the sale and delivery of of obtaining spelter in February next or in the course of the next spring at the portation!^ ^^' P"''® °^ 2^^- °'^ ^^^- ^^^- P®^ t°° ^^^ ^^^® ^°^*^ ^°™® quantities for That they consumption in England at prices, which exclusive of duty and have entered freight do not exceed the rate of 191. 10s. per ton. And your ora- into contracts tors charge that the difference between the artificial price to which anVdehVery *^® ^^^^ defendants have raised the price of spelter as aforesaid and of spelter at the prices stated in their said contracts with your orators and others future periods as aforesaid are very great ; and that the whole amount thereof upon at low prices, g^jj ^j^g contracts entered into by the said defendants as aforesaid is ference be- ' ' g^^^* ^"^^ equal to Some hundreds of thousands of pounds. And your tween the pre- orators charge that the said defendants have prevailed upon some of sent price and the persons who entered into such contracts to pay such difl"erences ; the prices ^^^^ ^Yia,^ Other of such persons have performed their contracts bv stated in the ,. , ,J^, (-iii i"^ contracts is purchasing spelter, and that some parts ot such spelter have been very great, purchased from the defendants themselves, and other parts thereof, That the de- although purchased from persons who did not appear to have any fendants have connexion with the said defendants, afterwards appeared to be the upon some Same Spelter which on a prior occasion had been delivered to the said persons to pay defendants. And your orators charge that divers other persons be- such differ- gijes the said defendants have some interest in the said fraudulent others have Contracts, or are entitled to receive some part of or some per centage purchased on the money raised or expected to be raised thereby, but your orators spelter from have been and are wholly unable to discover the names of such other apparantiy persons unless the same shall be as they ought to be discovered by connected the Said defendants. And your orators charge that the said defend- with the de- ants A. B. C. D. E. P. G. H. I. K. and L. M. being fully aware that which°was''the ^^^^ ''^^^^ engaged in a fraudulent and improper transaction, instructed same spelter the said M. and Co. to conceal their names in the greatest number of which had the aforesaid contracts, and it was intended that their names should to the defend- "°* ^^ ** ^'^ disclosed, and that the same would not have been dis- ants. closed if all the parties to the said contracts had submitted to pay the That many differences or losses which under the circumstances aforesaid were other persons demanded from them, but that some of such parties refused to sub- 7-^ ^h '°*^'^' ™^*'' ^^^ insisted upon knowing who were the principals on whose be- tracts whose half the Said contracts were entered into ; and thereupon the said names plain- defendants caused a writ in an action for the breach of one of such tiffs are un- contracts to be sued out and served upon one of such parties, and ETC. 51 the names of the said defendants A. B. 0. D. E. F. G. H. I. K. and able to dis- L. M. appeared as plaintiffs on such writ, and were thereby for the cover, except nrst time disclosed after the said M. and Co. had repeatedly refused ^y from the or declined to disclose the same. And your orators charge that the defendants. said defendants, with the view and design of concealing the Silesia That the de- spelter engrossed and purchased by them as aforesaid, have caused ^"'^^°*^ ^■^' considerable quantities thereof to be sent to B. and other places j^{^^^ t^at where spelter has not been usually sold, and where there is no market their names for the same. And your orators charge that the said defendants should be dis- never contemplated * receiving the Silesia spelter which they so con- [ *52 J tracted to purchase from your orators as aforesaid, but well knew closed, but that by their own contrivance the said contracts could not be execut- ^^^ taviDg ed, and intended only to receive the differences in price which were an™ction occasioned by themselves as aforesaid. And your orators charge against some that throughout the whole of the aforesaid transactions the said M. persons who and Co. have been the acting agents of the said other defendants in foj^ fteir^^'^' effecting the said fraudulent contracts, and that it was at their sug- contracts, the gestion and through their advice and management that the aforesaid defendants' contracts were entered into with your orators; and that by agree- iia,mes ap- ment between the said M. and Co. and the said other defendants it is ,vrit. stipulated that the said M and Co. are to have some share of or interest That the de- in the profits and advantage to arise from the said contracts with your f^'^'i'^'its have orators, and that the said M. and Co. accordingly claim to have an in- of'sp^e'iter \o^^ terest therein ; and the said other defendants with a view to conceal places where several of the matters aforesaid, and to prevent your orators from ^^^'^^ '^ no obtaining any discovery thereof have lately delivered many papers, letters and documents relating to the matters aforesaid, or some of ^^^ defend- them to the said M. and Co. in whose hands the same now are. And ants a.m. and your orators charge that the said M. and Co. having participated in T. M. were the the whole of the aforesaid fraud, and being interested in the said con- ?''^'^«?„«?1°'^ IT • T • f* -If 1^^ eiiecting tracts, ought to make such discovery as is hereinafter prayed tor, and the contracts. to pay your orators the costs of this suit. And your orators further That they are charge that in the course of the transactions aforesaid, divers letters '« ^'■^^^ and and correspondence besides the letters and correspondence hereinbefore ^^^J^g %,To&ts mentioned, have passed between the said defendants or other persons ^j^^^^ ietter=! on their behalf, and divers persons residing abroad and in England ; &c., have been and that the said defendants have now or lately had in their posses- delivered to sion or power divers letters copies of or extracts from letters and divers ^'^^'"' contracts agreements invoices bills of parcels accounts books of ac- ^^^^ partici- counts papers memorandums and writings relating to the matters pated in the aforesaid or some of them, and whereby if the same were produced fraud. the truth of the matters aforesaid or some of them would appear. And Charge as to your orators charge that notwithstanding the matters aforesaid the ^"^"^^i ''• said defendants require your orators to perform the said three contracts of the 6th and 9th days of May, and the said defendants having by such means as aforesaid raised the price of spelter to the sum of 40Z. per ton, and well knowing as the fact is that your orators were unable to prove the matters aforesaid without a discovery from the said de- fendants, threaten and intend unless your orators will consent to pay the difference between such artificial price and the prices stated in the said contracts, to commence and prosecute actions at law against your 52 BILLS TO CANCEL AGREEMENTS. orators for breach of the said contracts or some of them. And your orators charge that the said defendants ought to be restrained from so doing. All which actings doings pretences and refusals, &c. [see form VI. p. 5, interrogating to the stating and charging partsJ] Prayer. And that upon a full and fair disclosure of the several matters afore- said the said several contracts of the 6th and 9th days of May may be declared to have been obtained from your orators by fraud, and that the same may be delivered up to be cancelled ; and that [ *53 ] **^® s^i'i defendants may be restrained by the order or injunction of this court from commencing or prosecuting any action at law for breach of the said contracts, or any or either of them or in any man- ner touching or concerning the same. And that the said defendants may pay unto your orators their costs of this suit ; and that your orators may have such further or other relief as the nature and circumstances of this case may require and to your honors shall seem meet. May it please your honors, &c. \_See forms No. 1 and 4, p. 6.] Pray supboena and injunction against A. B. C. D. E. F. G. H. I. K. L. M. A. M. and I. M. *XVI. Bill to have an agreement for a building lease of a piece of ground delivered up to be cancelled, on the ground of gross fraud and misrepresentations on the part of the defendant; — an account taJcen of the moneys advanced by the defendant to the plaintiff, and also of the sums paid by the plaintiff to the defendant, and that the amount of the latter may be set off against the amount of the moneys advanced, — that a bond executed by the plaintiff to the defendant may be declared to stand as a security only for what is actually due to the defendant, and upon payment thereof may be delivered up to be cancelled, and for an injunction to restrain all proceedings at law. To, &c. Humbly complaining showeth unto your honors your orator A. B. of, &c. surgeon and apothecary, debtor and accountant, &c. [see form No. 2, p. 2. J That in the year 1823 your orator having pre- Plaintiff viously been in partnership with M. A. commenced business on his agreed with own account as a surgeon and apothecary at N. aforesaid. And that thedefendant by an agreement dated the 27th day of August 1823 your orator ofcertahipre- ^g^eed to take from C. D. the defendant hereto a lease of a certain mises and to dwelling-houge and premises at N. aforesaid at the yearly rent of 50Z., repair the and your Orator thereby agreed to put the said dwelling-house into ^^™^' . . good repair, and to make such several additions and improvements una'ble to^re- tl^^reto and thereon as were specified in the said agreement. And pair the same, your Orator further showeth unto your honors that pending the treaty defendant for the said agreement your orator informed the said C. D. as the fact hfm 7oo° 'u° - ^® ^^^^ y°^'^ orator had not the means of making the said repairs on his bond, additions and improvements. And that thereupon the said C. D. BILLS OF EXCHANGE, BONDS, ETC. 53 represented to your orator that the costs of such repairs additions iind improvement would not exceed the sum of ^90 or thereabouts. And that he the said C. D. would lend the sum of ^£100 to your orator upon his bond. And that by such representation and the promise of such loan your orator was induced to sign the said agree- ment which was prepared by the said C. D. and by him brought to your orator for his signature. And that at or soon after the time when the said agreement was signed, the said C. D. brought to your *orator for his execution a certain bond or obligation in writing [ *54 ] dated the day of 1823 in a penal sum for securing pay- ment of the sum of ^100 and interest at 5 per cent, per annum to be paid quarterly by your orator to the said 0. D. And that Plaintiff exe- your orator executed such bond in expectation that the sum of £100 cuted the thereby secured was to be employed in and would be sufficient for pectat\on that effecting the said repairs additions and improvements, but that the the looi. said C. D. then required that 25?. part of such sum of 100/. should '^ould be suf- be applied in purchasing the fixtures of the said house and the J''^"*- vegetables in the garden, and that a further sum of 251. other part (j^ctionsmade of the said sum of lOOZ. should be applied in paying two quarters' by the defe'nd- rent which he alleged would be due at Michaelmas then next, and ant out of the that other part of the said sum of lOOZ. should be applied in paying ^ the expenses of the said bond. And your orator further showeth that no such rent as was alleged would be due at Michaelmas was or in fact could be then due, as your orator was not to take possession till that time ; but that notwithstanding such facts and notwithstanding your orator's disappointment in not having the whole of the said sum of 1001. for the purpose of the said repairs additions and improve- ments, your orator was prevailed upon by the said C. D. to consent to such application as aforesaid of such parts thereof as»aforesaid, and Plaintiff only that your orator received from the said C. D. as a consideration for received 50Z., the said bond for lOOZ. a sum of money which did not amount to 501. rectedThf re- And your orator having as aforesaid executed the said agreement pairs to be and being in possession of the said premises directed the repairs addi- made, discov- tions and improvements specified in the said agreement to be com- ^^^ thereof ^ menced and carried on, and your orator did so in the expectation -nrouid far ex- founded on the representation of the said C. D. that the whole costs ceed looi. thereof would not exceed the sum of lOOZ. ; but in the progress of such work your orator ascertained that the cost thereof greatly ex- ceeded the said sum, and your orator having contracted a debt on ac- count of the said works which he was unable to pay was reduced to Being greatly a situation of great embarrassment and difficulty, but being in hopes embarrassed, that he should be able to extricate himself by his success in his ^^ ^Pi'^^ *? „..„, 111-. Ti 1 ■ 1 /~i 'he defendant protession it he could obtain time, your orator applied to the said (J. for a further D. and requested him to lend your orator a further sum of 1001. loan, and that after some delay the said C. D. declined to lend your orator which he re- any further sum by simple loan, but he stated to your orator that he fused, unless was entitled to a piece of ground which was eligible for building ^ ^^^ tak good houses : and that if your orator would take such piece of building lease building ground on such terms as he should propose, he the said of a piece of C. T>. would at the same time lend your orator the further sum of ground. 1001. which your orator had requested. And your orator having 54 BILLS TO CANCEL AGREEMENTS. The represen- hesitated respecting such offer, the said C. D. stated that he would tations made igt the said piece of building ground to your orator on such terms anAo the*^" ' ^^ would pay your orator 16J per cent, per annum on the money plaintiff as to he should lay out in respect Ijhereof, and he stated to your orator that such piece of he had himself realized 16J per cent, in building under circum- ground. stances similar to those which he offered to your orator. _ And your orator further showeth that your orator was wholly ignorant ^ of [ *55 ] *building speculations and wholly incompetent to form any opinion respecting any building contract or the prospect of making any profit thereby; and that your orator was very reluctant to enter into any agreement of that nature, but he was under such circum- stances of difficulty and embarrassment as aforesaid and was not able to prevail on the said C. D. to lend him the sum of <£100 other- wise than by entering into such new contract ; and that the said C. D. was himself a person of experience in building contracts and he well knew that your orator was entirely ignorant thereof, but he affected to be your orator's friend and to be willing to assist him as far as he properly could, and under the circumstances and by the Plaintiff pre- means aforesaid your orator was prevailed upon to agree to such vailed upon to terms as were offered by the said C. D. and soon afterwards the said accept the Q_ j) brought to your orator an agreement in writing and a bond posed. already prepared ; and that such agreement m writing was in the Agreement words and figures and to the effect following (that is to say): "An made between agreement made the day of , , between C. I), of, &c. *fl^lr'°d^^ and M. his wife of the one part, and A. B. of &c. aforesaid surgeon fraidaut and of t^^ other part. The said C. D. and M. his wife in consideration his wife. of the Sum of £200 to be paid to him by the said A. B. do hereby agree to let by lease as hereinafter mentioned unto the said A. B. who hereby agfees to take under such intended lease All that piece or parcel of ground situate &c. for the term of sixty-one years commencing, &c. at and under the yearly rent of £20 payable, &c. {^Covenants by A. B. with C. D. and M. his wife at his own expense within the space of twelve months from the date thereof to erect and build upon part of the aforesaid piece of ground two good and sub- stantial messuages or dwelling-houses each containing six rooms, &c. to the satisfaction of the said 0. D. and M. his wife or their his or her surveyor ; and also to erect and setup good and substantial fences for dividing, &c.] And it is hereby agreed between the said par- ties hereto, that after the erection building and finishing and setting up of the said two messuages or dwelling-houses buildings and fences in manner and within the time aforesaid, the said intended lease and a counterpart thereof shall at the desire of either of the said parties hereto be prepared by the solicitor of the said C. D. and M. his wife, and be duly executed and delivered by the said parties respectively and the costs thereof shall be borne and paid by the said A. B. his executors administrators or assigns. And it is agreed that such lease shall contain covenants and clauses in the usual and proper forms as follows, on the part of the said A. B. covenants to pay the said rent in manner aforesaid, to pay the land tax and all other taxes rates duties charges and assessments upon or in respect of the premises, to keep the said messuages or dwelling-houses and BILLS OF EXCHANGE, BONDS, ETC. 55 fences well and sufficiently repaired in all respects, and so to leave and yield them up with all additions improvements and fixtures to the freehold at the end or sooner determination of the said term of sixty-one years ; and that the said 0. D. and M. his wife and their respective heirs and assigns agents workmen and servants shall be at liberty to enter upon and view the premises, and give or leave notice to do repairs wanting thereto within three calendar *months, and for the repairs to be done within that space of time r *56 ] after every notice, and to keep insured the said messuages or dwelling- houses buildings and premises in £600 or such other sum as shall be sufficient to cover the value thereof during the continuance of the term, in the Eagle or some other respectable insurance office in the joint names of the lessors and lessee, and in case of fire the money to be received under the policy to be laid out in rebuilding or re- pairing the premises. A proviso for re-entry by the lessors on non- payment of the rent for twenty-one days or on breach of covenant by-the lessee his executors administrators or assigns, and a covenant by the said C. J), for himself and the said M. his wife for quiet en- joyment." As witness &c. As by the said agreement reference being thereunto had will appear. And your orator further showeth that Plaintiff exe- your orator without having any advice or assistance executed the <=uted the said agreement at the request of the said 0. D. and on the faith of ^te faith of the the representations made by him that the same was a just and proper defendant's agreement, and that the consideration thereby agreed to be given by representa- your orator was no morethan a just and proper consideration for *'°°^' the benefits thereby purported to be secured to your orator. And Bond for 300l. your orator further showeth that at the time when your orator exe- tendered to cuted the said last mentioned agreement the said C. D. tendered to ^ P ^™ ' i your orator a bond dated the day of , in a penal sum for securing the payment of £300 and interest at the rate of £5 per cent, per annum to be paid quarterly by your orator to him the said 0. D. and he represented that such sum of £300 consisted of the sum of £200 the consideration money mentioned in the said agree- ment and the sum of £100 which he had agreed to lend to your orator on the terms of his signing the said contract; and that your orator which he exe- under the circumstances aforesaid executed the said bond; and that cuted. thereupon the said C. D. advanced to your orator a small sum of a small sum money being the amount of the said sum of £100 after deducting only paid to therefrom various sums of money which the said 0. D. then alleged *® plamtiff. to be due to him from your orator for rent and otherwise, but the particulars or amount of which your orator being at the time in a state of great anxiety and perplexity did not then understand and cannot now recollect; and that on divers occasions since the execution piaintiffpre- of the said bond the said C. D. has by various artifices and under vailed upon to particular circumstances prevailed upon your orator to pay the in- P^y various j.«/ It sums tor iii-» terest of the money thereby secured, and also the rent agreed to be ^^J.^^^^ ^nd reserved by the said agreement of the day of , , but rent, but has your orator has lately discovered as the fact is that he was greatly im- i^'^'y ^^'^°' posed upon in the transaction aforesaid; and that he was fraudulently had^been"^ ^ prevailed upon to execute the said agreement and the said bond for greatly im- £300 by false representations of the value of the piece of land therein posed upon. 56 BILLS TO CANCEL AGEBEMBNTS. comprised and the eligibility thereof for building ; and that in fact the said piece of land which in quantity does not amount to half an acre is of very little value and cannot be used for any purpose other than building cottages or houses of a low description, and that instead of being worth J20O in advance and an annual rent of ^£20 on a build- ing lease for sixty-one years, the fee-simple thereof is not worth more than £100 and the utmost value thereof for the purpose of building [ *57 ] does * not exceed an annual rent of 101. And your orator having dis- Appiicationto covered such imposition and fraud as aforesaid has frequently and in the defendant g, friendly manner by himself and his agents applied to the said C. the seccmd"^ ^- ^^^ requested him to deliver up the said agreement of the agreement day of , and the said bond to be cancelled, and to set off and bond to the sums paid by your orator by way of rent under the said agree- be cancelled. ^^^^ ^^^ -^^^ ^^^ ^^ interest on the said sum of 200Z., against the sums actually and bona fide advanced to your orator by the said C. D. as aforesaid ; and your orator hath thereupon offered to pay to the said C. D. the full amount of what after such set-off shouldappear to be due. And your orator was in hopes that such his just and reasonable requests would have been complied with as in justice and IV. equity ought to have been the case. But that the said C. D. com- bining and confederating with divers other persons now unknown to your orator whose names when discovered your orator prays he may be at liberty to insert herein with apt manner and words to charge Defendant re- them as parties defendants hereto, and contriving how to injure and fuses to com- defraud your orator in the premises, absolutely refuses to comply with ply t efewit . ^^^-^ requests, sometimes pretending that the said bond for £300 was the bond was executed in consideration of money to that amount which was bona executed in fide lent and advanced by him to your orator ; and that the said consideration agreement of the day of , , was distinct from and inde- fide lent and pendent of any loan, and that the same was made and entered into that the' se- by your orator with full knowledge of the value of the land therein cond agree- comprised and uninfluenced by any representations of the said de- SrediTtoVith fondant. Whereas your orator charges the contrary ; and that your full know- orator was wholly ignorant of the value of the said land and of all ledge of the building speculations or contracts ; and that your orator had no in- valne of the tention or wish to enter into any such speculation or contract, but that Charge the *^® ^^^^ defendant taking advantage of the distress and embarrassment contrary. in which your orator was placed, and of your orator's ignorance of That the de- the matters aforesaid, and being applied to by your orator for the fendant took loan of £100 refused to advance such loan unless your orator would tfj-^'^^m^f ^-^ enter into such contract. And that your orator complied with the plaintlttS dlS- •infi.i -iitci iit 1 1 p tress. said deienaant s terms m the beiiei that he had no other mode oi That plaintiff extricating himself from his difficulties, and on the faith that the complied with representations made by the said defendant respecting the said piece terms'^ou'ttie °^ ^^^^ ^^^ ^*^ eligibility for building on were true ; and that the faith of his re- said defendant at the time when he so prevailed on your orator to presentations, enter into the said contract well knew that your orator was ignorant of the nature and extent of the obligations he was entering into, and had no knowledge of the value of the said piece of land and of the probable profit to be made by building thereon, other than such as he derived from the said defendant ; and that under such circumstances BILLS OF EXCHANGE, BONDS, ETC. 57 the said defendant well knowing that the said piece of land if fairly and bona fide sold in fee-simple was not worth more than ^£100 or thereabouts, and that the same if let on a building lease was not worth more than an annual rent of ,£10 or thereabouts, nevertheless represented to your orator that the same when let on a building lease was worth an annual rent of £20 besides a premium of £200 to be paid down ; and that *by entering into a contract to pay such premium [ *58 ] and such annual rent, and to build in the manner in the said agree- ment mentioned, your orator would be able to realize a profit of 16|- ■per cent, per annum upon the money he should lay out. And your That defend- orator charges that such representations were grossly fraudulent, and ant's represen- 1 "« , 1 j> i ,• r \ tations were were made tor the purpose ot extorting money irom your orator, grossly frau- And that your orator had no advice or assistance on the occasion of duient. entering into the said agreement but relied solely on the honor and That plaintiff good faith of the said defendant. And that your orator for a con- ^^^ °° advice, siderable time after the date of the said agreement continued to be in g^eat embar- circumstances of embarrassment and was much in the power of the rassment. said C. D., and did not till very lately discover the imposition which had been practised upon him ; and that he hath not commenced any building on the said premises. And as evidence of the fraud Charge as to which was practised upon your orator as aforesaid, your orator evidence of charges that the piece of land comprised in the said agreement of * ^ i™"'i- the day of , is part of a long strip of land belonging to the said defendant, and that one end of the said strip of land is bounded by the high road from L. to B. and is eligible for building good houses, but that the other end thereof being the part comprised in the said agreement is remote from the said highway and of very little value ; and that for a considerable time before and up to the time when the said defendant prevailed on your orator to enter into the said agreement he employed one H. F. to let the whole of the said strip of land on a building lease of sixty-one years at the annual ground rent of ,£20 without any premium ; and that applications were made to the said H. F. in respect thereof, but no person was found willing to give such rent ; and that the said defendant was informed and well knew that the whole of the said strip of land could not be let for £20 a year without a premium, but nevertheless represented to your orator that the worst and lesser part thereof, viz. the part thereof most remote from the road was worth not only an annual rent of £20 but also a premium of ,£200, and having by such means prevailed on your orator to sign the said agreement and execute the said bond, he afterwards employed the said H. F. and other persons to let the other, being the much greater and most valuable part of the said strip of land, for an annual rent of £20 without asking any premium for the same, but was unable to find any person to take the same at that price. And under the circumstances aforesaid, your orator charges That the se- that the said agreement of the day of , ought to be de- <=ond agree- livered up to be cancelled ; and that the said bond ought to stand as b'e^cancdled'" a security only for the money which has been really advanced to your orator by the said defendant, and that the moneys which have been paid by your orator under the said agreement or in pursuance thereof ought to be set ofi' against the moneys which have been advanced to your orator 58 BILLS TO CANCEL AGREEMENTS. by the said defendant upon the said bond of the day of , or otherwise ; and that if an account were taken of the pecuniary deal- ings between your orator and the said defendant it would appear as the fact is that a very small (if any) sum of money is now due to the said defendant on the balance thereof, but he nevertheless threatens and [ *59 ] *intends to commence one or more action or actions at law against Actions your orator upon the said bonds of the day of , and threatened on the day of , or one of them for the purpose of com- the bonds, pelling your orator to pay the whole of the moneys secured thereby ; and on the and he also threatens and intends to commence and prosecute some second agree- proceedings against your orator to compel him to pay the rent agreed "^"^ ■ to be reserved by the said agreement of the day of , . Charge that And your orator charges that the said defendant ought to be re- the defendant strained by the order or injunction of this court from commencing resfrained''^ or prosecuting any such proceedings ; and that the said defendant from such Ought to set forth such accounts as are hereinafter prayed for, and proceedings, a true list Or schedule of divers books accounts papers and writings ^'tV'th'^th ° i"elating to the matters aforesaid, which your orator charges are now accounts re- ^^ lately were in the said defendant's possession or power and from quired, and a which the truth of the matters aforesaid or some of them would ap- Bchedule of pgar but he refuses so to do. All which actings doings pretences papers. ^^^ refusals, &c. [^seeform YI.p. 5, interrogating to the stating and Interrogatory charging parts.'] And that the said defendant 0. D. may set forth astothepecu- a full true and just account of all and every the pecuniary dealings niary dealings and transactions between him and your orator, and particularly of all pLintiff and ^^^ every the sum and sums of money which have been paid lent or defendant. advanced by the said defendant to your orator, and of all and every the sum and sums of money which your orator or any person or per- sons by his order or for his use hath or have paid to or on account of the said defendant, and when and where and at what time or times and in what manner and in what amounts and in whose pre- sence and by whom and to whom the said sums respectively and each and every of them and each and every part thereof were and was received and paid, and what (if any) balance or sum of money is now due and owing to the said defendant from your orator, and how the Interrogatory Said defendant makes out the same. And that the said defendant as to books, may in manner aforesaid answer and set forth whether he hath not "■ now or had not lately and when last in his possession custody or power divers or some and what books accounts papers and writings or book account paper or writing relating to the matters aforesaid, or some and which of them or how otherwise. And whether thereby or by some or one and which of them if the same were produced or other- wise and how, the truth of the matters aforesaid, or some or one and which of them would not appear or how otherwise, and if not why not. And that the said defendant may set forth a full true and per- fect list or schedule of all and every the said books accounts papers and writings, and may produce and leave such of them as now are in his possession custody or power in the hands of his clerk in court for the usual purpose ; and may set forth what have or hath become of such of them as are or is not now in his possession custody or Prayer. power. And that it may be declared that the said agreement of the BILLS OF EXCHANaB, BONDS, ETC. ' 59 day of , [i. e. the second agreement] was obtained from your orator by misrepresentation and fraud and ought to be deli- vered up to be cancelled ; and that the same may be delivered up accordingly. And that it may be declared that the said bonds ought to stand as a security only *for what if anything is really and [ *60 ] and justly due from your orator to the said defendant; and that an account may be taken of all and every the sum and sums of money which have been advanced and paid to your orator by the said de- fendant, and of the interest which has accrued due in respect thereof, and of the several sums of money which have been paid by your orator on account of such interest. And that an account may also be taken of the several sums of money which have been paid by your orator to the said defendant under or in pursuance of the said agree- ment of the day of , by way of rent for the piece of land therein comprised or by way of interest on the sum of <£200 therein mentioned. And that the amount of such last-mentioned sums of money may be set oflF against the moneys advanced to your orator by the said defendant and the interest thereof and be de- ducted therefrom. And that the full amount of what if any thing is due from your orator to the said defendant may be ascertained. And that upon full payment thereof (which your orator hereby offers to make,)(4) the said bonds may be delivered to be cancelled; and that the said defendant may be restrained by the order or injunction of this honorable court from commencing or prosecuting any actions or action or any proceedings at law against your orator for recovering the moneys secured by the said bonds or either of them or any part thereof, or touching or concerning the matters aforesaid or any of them. And that your orator may have such further and other relief in the matters aforesaid as the nature and circumstances of this case may require and to your honors shall seem just. May it please your honors, &c. \_8ee forms No. 1, and 4, p. 6.] Pray subpcena and injunction against C. D. (4) In the case of The Columhian Government t. Rothschild, 1 Sim. 103, the Vice Chancellor observed, that the court originally required that a bill for an account should contain an offer on the part of the plaintiff to pay the balance if found against him ; but that it is not now considered necessary. The mere filing a bill for an account enables the court to do all justice between the parties. *61 BILLS TO CANCEL AGKEEMBNTS. *XVII. dross hill to set aside an agreement for the conveyance of a piece of ground, the specific performance of which was sought in another suit. The cross bill leing filed by the de-^endant to the original bill and the party to whom she had sold and conveyed the piece of ground, against the plaintiffs in the original bill, one of whom was the solicitor to the other, and as alleged, had purchased the ground under the agreement sought to be set aside, but with full knowledge that his co-plaintiff had waived all claim under the agreement. In the Exchequer. To, &c. Plaintiff M. A. R. being in confidential friendship with J. D. de- signed to make nim a present of a piece of ground. Instructions given by plaintiff M. A. R. to her at- torney to pre- pare an agree- ment, which was prepared and executed by defendant J. D. and the plaintiff M. A. R. Humbly complaining show unto your honors your orator and ora- trix T. H. of, &c. and M. A. R. of, &c. widow, debtors, &c. [see form No. 2, p. 2.] That in and before the month of your oratrix was seised and possessed of a piece or parcel of ground lying, &c. And your orator and oratrix further show unto your honors that in and about, the said month of your oratrix was in habits of con- fidential friendship with J. D. then of B. bookseller, (one of the de- fendants hereinafter named) and the said J. D. then pretended to . take great interest in the concerns of your oratrix and promised his advice and assistance in the settlement of her afi'airs, your oratrix having been left a widow about months before that time, and the said J. D. conducted himself altogether towards your oratrix with an intention to induce your oratrix to believe that it was his purpose to make proposals of marriage to her. And your orator and oratrix further show unto your honors that your oratrix having before made many presents to the said J. D. did in the said month of in a conversation with the said J. D. express to him her in- tention to make him a present of the said piece of ground, and the said J. D. then pressing your oratrix to carry this intention into eifect by executing some written agreement, your oratrix instructed her attorney Mr. M. of, &c. to prepare an agreement, but your ora- trix, not thinking it prudent to part absolutely at that time with her interest in the said piece of ground, directed Mr. M. to insert the sum of £ as a consideration to be paid by the said D. J. to your ora- trix for the purchase of the same which sum of <£ your oratrix then considered to be above the value of the said piece of ground, and the said Mr. M. did accordingly prepare an agreement in writing in the words and figures or to the purport and efifect follow- ing (that is to say,) &c. As in and by, &c. And your orator and oratrix further show unto your honors, that after the said agreement in writing was prepared by the said Mr. M. and in or about the said J. D. called at the house of the said Mr. M. and the said Mr. M. then read over the said written agreement to the said J. D. or otherwise informed the said J. D. of the con- tents thereof, and the said J. D. thereupon executed the said BILLS OF EXCHANGE, BONDS, ETC. *62 ^written agreement in the presence of the said Mr. M. And your orator and oratrix further show that after the said J. D. had executed the said agreement the said Mr. M. delivered the same unto him, and the said J. D. on the same day brought the said agreement to your oratrix at her own house and your oratrix thereupon also executed the same at the request of the said J. D. And your orator and ora- trix further show unto your honors that at the time of executing such agreement as aforesaid by your oratrix and the said J. D. it was un- derstood by your oratrix and the said J. D. notwithstanding the said sum of 1, was mentioned as the consideration of the said agree- ment in order to retain to your oratrix a power over the said piece of ground, that it was the ultimate intention of your oratrix to make the said J. D. a present of the same. And your orator and oratrix No part of the further show unto your "honors that although the sum of £ was consideration mentioned in the said agreement to have been paid by the said J. D. °i^"''°°^'J "• o . , „ . , /. n 1 • tlie agreement to your oratrix in part ot the atoresaid sum ot £ yet that m ever paid. truth no part of the said £ was ever paid by the said J. D. And your orator and oratrix further show unto your honors that after j^ disagree- the making of the said written agreement, instead of continuing his ment iiaying good offices and friendship to your oratrix in the faith of which your arisen, J. D. oratrix had executed the said agreement the said J. D. pretended to ti'ff m a'^rTo have cause of complaint against your oratrix and not only refused be arrested in all further assistance in the management of her affairs but actually two actions. caused your oratrix to be arrested in two separate actions for sums of money which the said J. D. had advanced for her use in the manage- ment of her concerns, expressly for the purpose of distressing the feelings of your oratrix and not from any apprehension that such ar- rests were necessary for securing the debts due to the said J. D. And your orator and oratrix further show that upon siffih conduct on Applications the part of the said J. D. toward your oratrix, your oratrix caused to J.p.toful- application to be made to the said J. D. to carry the aforesaid writ- ^' ""1^ agree- ten agreement into effect by payment of the said sum of 1, jng the con- therein mentioned, on having a conveyance made to him of the said sideration- piece of ground or otherwise to deliver up the said agreement to be ^^ney, which cancelled. And the said J. D. on such applications being made to ^o and waiv- him by the said Mr. M. on the part of your oratrix absolutely refused ed'aii claim. to pay the said sum of £ and to carry the said agreement into effect, and the said J. D. then declared to the said Mr. M. that as he and your oratrix were no longer on friendly terms he did not consider himself entitled to the said piece of ground, and that therefore he waived and relinquished all claim thereto under the aforesaid agree- ment, and would have nothing further to do with the said agreement. And your orator and oratrix further show unto your honors that after the said J. D. had so waived the said written agreement your oratrix Agreement by- agreed with your orator to sell to him the said piece of ground, plaintiff Ji. A. together with other parcels of land at B. aforesaid at or for the ^- *° ^^'^ ^^^ price or sum of £ the price of the said piece of ground being pontiff t. h. calculated in the said sum of 1, at 1., and afterwards by and conTcy- indentures of lease and release bearing date respectively on or about ^°ce to him. and by assignment bearing date the said day of your oratrix, in consideration of the said sum of £ then in hand paid 9 *63 BILLS TO CANCEL AGREEMENTS. *to your oratrix conveyed released and assigned the said ■ piece of ground together with the said other parcels of land unto your orator his heirs executors administrators and assigns. As in and by, &c. Applications And your orator and oratrix further show unto your honors that to J. D. to ^\ ^,^^' T. C. some time in the month of departed this life having first and probate , , , , i i- i r i • i -m i ■ • • i thereof. duly made and published nis last will and testament in writing and r *go I thereof *appointed E. T. of, &c. and A. G. of, &c. (the defendants hereinafter named) executors who thereupon duly proved the same in the proper Ecclesiastical Court and undertook the executorship Plaintiff serr- thereof, and thereby became his legal personal representatives. And ed with a no- yg^^ orators further show that in the month of last the said E. T. as Steward of the said E. S. served your orators with a notice to quit the said farms at the end of the then current year in- sisting as the fact appears to be that the said T. C. was only tenant from year to year of the said farms and had no power to dis- pose of the same to your orators for the residue of the said term of years. And your orators further show that the said bond for £ ^and interest having therefore been given by your orators to the said T. C. without consideration and by reason of the false re- presentations of the said T. C. that he had such interest in the said farms as aforesaid, your orators have by themselves and their Application to agents "repeatedly applied to the said E. T. and A. G. and have re- the executors, quested them to deliver up to your orators the aforesaid bond to be ants toTeiiver Cancelled. And your orators well hoped that the said E. T. and A. op the bond, G. would have complied with such your orators' reasonable requests as in justice and equity they ought to have done. But now so it is, &c. BILLS OF B5CHANGB, BONDS, ETC. 80 [see form IV. p. 5,] they refuse so to do ; And although the said and refusal by defendants well know that the said bond was given by your orators *'^^°^- as a consideration for the supposed interest of the said T. C. in the said farms for the residue of the said term of years, yet defendants have lately commenced an action at law in his Majesty's Defendants Court of K. B. by special testatum capias upon the said bond and ^^''^ com- have caused your orators to be held to bail thereon, and the said de- "^j^'^q'^ ''".u fendants threaten and intend to proceed to judgment and execution bond against on the said bond unless they are restrained therefrom by the injunc- the plaintiffs. tion of this honorable court. To the end therefore, &c. [see form VI. p. 5, interrogating the statements.^ Prayer for the bond to be delivered up, and an injunction to re- strain proceedings at law. J. L. XXIII. Bill by sureties in a bond {ivhioh had been executed pre- viously to an award being made) at the suggestion of the arbitra- tors, hy one partner to another, for indemnifying him against the partnership debts, and for securing payment of a sum of money) — against the obligee, and the assignees of the partner the obligor bankrupt, fraying to have the bond delivered up to be cancelled, and for an injunction to restrain proceedings at law, on the ground of the award being void. To, &c. Humbly complaining show unto your lordship your orators P. B. of, &c. and C. M. of, &c. That W. W. of, &c., and J. B. of, &c. w. w. and J. chemists and druggists, did in or about the month of carry on ^- carried on the trade or mystery of chemists and druggists together as partners partnersWp *under certain articles of agreement theretofore made between them under certain and bearing date on or about the day of , whereby they articles. agreed to become co-partners in the said trade or mystery of che- [ *81 ] mists and druggists for the term of twenty-one years from the day of the date thereof if they should so long live, but determinable nevertheless by either of them upon the first seven or first fourteen years of the said term of twenty-one years, upon under and subject to certain terms and conditions in the said articles of agreement ex- pressed. And your orators further show unto your lordship that Disputes be- certain differences and disputes having arisen between the said W. tween them. W. and J. B. it was agreed by and between them to refer their said differences and disputes to arbitration ; and thereupon the said R. Reference to W. and J. B. each duly made executed and delivered to the other a arbitration. certain bond or obligation in writing bearing date on or about whereby they respectively bound themselves their heirs executors and administrators the one to the other of them in the penal sum of £ , with a condition to each of the said bonds respectively un- derwritten, whereby it was provided that if the obligor of such bond his heira executors or administrators did and should, &c. [stating the 81 BILLS TO CANCEL AGREEMENTS. Arbitrators not agreeing on an award, an umpire ap- pointed. Difficulty sug- gested re- specting secu- rity from W. W. *o perform the award. Applications to plaintiffs to become sure- ties with him. Bond execu- ted by plain- tiffs and W.W. [*82] Award made by the um- pire. Circumstan- ces alleged tending to show that the award is void. condition of the hand.'] As by the said bonds or obligation refer- ence being thereunto had when produced to this honorable court will more fully appear. And your orators further show unto your lord- ship that the said R. W. and B. S. [the two arbitrators] proceeded on the said arbitration, but not agreeing to make an award therein, did on or about under the power by the said arbitration bonds in that behalf given nominate and appoint R. F. of, &c. an umpire between them respectively of the matters so referred and submitted as aforesaid. And your orators further show unto your lordship that in the course of the investigation of the aforesaid matters it was suggested to the said W. W. by the said arbitrators or one of them that if the said arbitrators should determine upon a dissolution of the aforesaid partnership between him the said W. W. and the said J. E., and should award that the said W. W. should continue in the business and pay and secure all debts owing by or to the said partnership concern, and should also pay a certain sum of money to the said J. B., a difiBculty would arise for want of a suflScient security to the said J. B. against the outstanding debts and claims upon the co-partnership and for the due payment of the sum of money which might be so awarded to him as aforesaid. And your orators further show unto your lordship that the said W. W. in order to obviate and remove the said difficulty applied to your orators and requested them to join him as sureties in the bond to the said J. B. for that purpose and your orators having consented thereto they and the said W. W. did, by a certain bond and obligation sealed with their respective seals and bearing date on or about , jointly and severally bind themselves and each of their heirs executors and administrators for the payment of the sum of £ to the said J. B., with a condition thereunder written, whereby after reciting the said arbitration bonds and the appointment of the said R. F. as umpire as aforesaid and the difficulty suggested as aforesaid to the said W. W. it was provided that, &c. As in and by the last-mentioned bond or obligation *refer- ence, &c. And your orators further show unto your lordship that the said R. F. did on or about the said sign a certain instru- ment in writing purporting to be his award in the matters aforesaid whereby after reciting the purport and effect of the said arbitration bonds and the appointment of the said R. F. to be such umpire as aforesaid, and reciting further that under such reference, &c. [stating that part of the award which bears upon the ease.] As in and by the said award, &c. And your orators further show unto your lordship that although it is in the said award recited that the said R. F. had taken upon himself the burthen of the said reference and submission and had deliberately heard and considered the alle- gations and proofs of the said W. W. and J. B. respectively and had perused examined and considered their account, yet in truth the said R. F. did not in any manner enter upon the subject of the said reference, nor heard or considered any allegations or proofs of either of the parties, nor ever in any manner perused examined or con- sidered any accounts relating to the said matters in difference, nor ever exercised any judgment whatever as to any of the said matters, but the said award was prepared by the instructions of the said P. BILLS OE EXCHANGE, BONDS, ETC. 82 S. alone without any interference whatever on the part of the said R. F. who was prevailed upon to sign it by being assured that his signature thereto was a mere matter of form. And your orators Commission further show unto your lordship that since the making of the said o^ ^''■"'^^P' award a commission of bankrupt under the great seal of Great ^^^^"^ Britain hath been awarded and issued against tie said W. W. who hath been thereupon duly found and declared bankrupt ; and the usual assignment of his estate hath been duly made to A. B. and C. D. (defendants hereinafter named) who were duly chosen by the creditors as the assignees of the said bankrupt's estate. And your Applications orators further show unto your lordship that the said award so made to *e obligee as aforesaid being utterly void as against your orators by reason that J^^ bon'd "^ "^ the same was signed by the said R. F. under the circumstances here- inbefore stated, your orators have by themselves and their agents applied to the said J. B. and requested him to deliver up to your orators the bond in which they had joined as the sureties of the said W. W. as aforesaid to be cancelled. And your orators well hoped Refusals so to that the said J. B. would have complied with such your orators' rea- ^.°' ^°^ an ac- sonable requests as in justice and equity he ought to have done, ened against But now so it is may it please your lordship that the said J. B. plaintiffs. combining and confederating with the said A. B. and C. D. and with divers other persons, &c. [see form IV. p. 5] the said J. B. refuses so to do; and the said W. W. not having paid to the said J. B. the said several sums mentioned in the said award nor having discharged the debts of the said co-partnership the said J. B. threatens and in- tends to commence an action at law against your orators upon their said bond. And your orators charge that the said A. B. and C. D. The assignees the assignees of the said W. W. refuse to join your orators in this refuse to join suit. All which actings, &c. [/See form VI. p. 5, interrogating to ^ ^'° ' ^* the stating and charging parts.'] And that the said bond so as aforesaid entered into by your ora- Prayer, tors and the said W. W. may be delivered up to your orators to be cancelled, or may be declared void so far as the same respects your *orators. And that in the mean time the said J. B. may be restrained [ *83 ] by the order and injunction of this honorable court from commencing prosecuting or proceeding in any action or actions at law against your orators or either of them in respect of the said bond. \_And for further relief, see form VIII. p. 5, and 6.] May it please, &c. {_See forms No. 1, and 4, p. 6.] J. L. Pray subpoena and injunction against J. B. and subpoena against A. B. and 0. D. 83 BILLS TO CANCEL AGREEMENTS. *XXIV, Prayer of a hill to set aside a lease which had been granted upon the surrender of a former lease, and for an account of earth and gravel dug up beyond the quantity allowed under the old lease ; plaintiff offering to grant a lease, to continue for such term as was granted by the old lease, and to confirm any underleases granted by the defendant; — Praying also to have an agreement and bond delivered up, and for costs against the defendants; — Praying also in the alternative, that if the new lease ought not to be set aside, then that the same may be rectified, and for an injunc- tion to restrain the defendants from digging gravel or committing J waste, or granting underleases. {^) And that the said lease so executed by the said L. M. as aforesaid may be set aside as having been obtained by fraud and imposition and that the said C. G. may be decreed to deliver up the same to be cancelled and that he may be decreed to account with plaintiffs for all the earth and gravel dug up and taken by him from the said pre- mises beyond the quantity which he was entitled to dig under the old lease and for the profits made by him by such earth and g-ca,\e\ plain- tiffs hereby offering to deliver up the counterpart of the said lease to the said 0. Gr. and also offering to grant a new lease to the said C. G. for such term as would be still subsisting in the old lease, if the same had not been surrendered, upon the same terms as were contained in such old lease with respect to such part of the said term, and to allow to the said C. G. in account the surplus rent which has been paid by him under the new lease, beyond the rent which was reserved by the old lease, and also so far as the court shall think fit to direct, to confirm all the leases underleases and assignments made by the said C. G. at any time before plaintiffs' bill of complaint in this cause was filed, and to make all reasonable allowances to the said C. G. for moneys laid out upon the said premises, and generally to submit to such terms as the court shall be pleased to impose. And that the said A. L. may be decreed to deliver up the said agree- ment of the day of to the plaintiffs, and to deliver up the said bond executed by the said C. G. to him ; and that the said A. L. as well as the said C. G. may be decreed to be answerable for and to [ *84 ] *pay all the costs of this suit and of setting aside the present lease and granting the new one, OK if this court should be of opinion that the said lease ought not to be set aside, then that the same may be re- formed and rectified by omitting the covenant contained in the said lease with respect to the apportionment of rent, and by introducing a covenant for reserving to the owner of the reversion of the pro- perty comprised in the said lease, the right of having all underleases and assignments of the said property prepared by his own solicitors. And that the said C. G. may be restrained by injunction of this court from digging clay and making bricks upon the said land, and from digging and removing gravel from the same ; and from committing C?) See Harris v. Tremenheere, 15 Ves. 34, 2d edit.; and the cases referred to in the notes ; Lord Selsey v. Rhoades, 2 Sim. & Stu. 41. BONDS, ETC. 84 any other waste or spoil in or about the said demised premises, and from granting or making and contracting to grant and make any leases underleases or assignments of any part of the said demised premises. \_And for further relief.'] XXV. Pretences and charges in a Mil to set aside an assignment of effects for the benefit of relations, as having heen made without consideration, and when the assignor was considerably in debt. And the said defendant sometimes pretends that he hath not since Pretence that the death of the said J. J. his late father deceased, possessed any defendant has personal estate or effects which were belonging to him at the time of °°' possessed his death, he the said J. J. not being possessed of or entitled unto e5tate'^of°his any personal estate or effects whatsoever ; for that the said J. J. deceased fe- sometime before his death and in and about the year executed "^^^i by rea- some deed or deeds, instrument or instruments in writing whereby '^°°g*gg^ [j^d he assigned unto the said W. J. or to some other person or persons in his lifetime in trust for him or for his use or benefit or in trust for or for the use assigned all or benefit of some friend or relation of him the said J. J. absolutely ['."[^"."'^'t^^' j and for a good and valuable consideration, all the personal estate for the benefit and effects whereof he was possessed or unto which he was entitled, of some friend and that by virtue of the said assignment the said W. J. or such other °^ relation. person or persons in whose favor such assignment is pretended to have been made became well entitled thereto, and the same were accordingly delivered unto him or them by the said J. J. in his life- time, but the particulars of such assignment or to whom the same was made the confederate W. J. refuses to discover. Whereas your Charge the orator charges the contrary thereof to be true. And that the said contrary. confederate ought to admit assets, &c. or account, &c. And plain- That if any tiff further charges that in case the said J. J. did really execute any such deed such deed or deeds instrument or instruments in writing as are here- T^p^^V^' inbefore pretended to have been executed by him, and did there- ceased was upon deliver such personal estate and effects to the said W. J. or any indebted to a other person or persons (but which plaintiffs do not admit,) the said large amount, J. J. was at the time of the date and execution of the said pretended executed it deeds indebted to several persons to a considerable amount, and with a view to such deed or deeds instrument or instruments were or was executed defraud his *by him, and such personal estate and effects delivered by him with '^'^'l\°g^' . a view and for the sole purpose of defrauding his creditors and to L ^'^ J elude the payment of the debts by him contracted, and such deed or deeds instrument or instruments, and the delivery of such effects, was and were voluntary and fraudulent, and without any valuable That it was consideration whatsoever really and bona fide paid by the said W. J. voluntary and or the said person or persons in whose favor the same are pretended ^i*o".t con- to have been made, but the same was or were made to him or them in trust for the said J. J. or with intent to screen his estate and effects from his creditors or some or one of them, and to prevent the same from being applied in payment and satisfaction thereof. 85 BILLS TO CANCEL AGREEMENTS. That if any consideration was paid for such assign- ment, part of it was return- ed. That such deed was a fraud upon the creditors, and ought to be set aside. And that the defendant ought to ac- count for all the personal estate. And plaintiff further charges, that in case any consideration what- soever was ever paid by the said W. J. or any other per.son or persons to the said J. J. for such deed or deeds instrument or instruments, or delivery of such effects, but which plaintiffs do not admit, the whole or some part thereof was returned to the said J. J. by the said W. J. or such other person or persons, or to some person in trust for him or them, or he or they was or were in some manner repaid the same, and such consideration was merely colorable; and plaintiff is advised and humbly insists that the execution of such deed or deeds instrument or instruments, and the delivery of such effects, was a gross fraud upon the fair and just creditors of the said J. J. and ought therefore to be set aside and such deed or deeds instrument or instru- ments delivered up to be cancelled. And that the said W. J. and such other person or persons to whom or in whose favor such deeds are pretended to have been made, ought to account for all such per- sonal estate and effects as have been possessed or received by him or them by virtue or under color of such deed or deeds instrument or instruments, or which were delivered to him or them by the said J. J. in his life-time. But nevertheless, &c. Pretence that deceased exe- cuted a re- lease to the defendant of all claims. Charge the contrary; or if she did, it was obtained by unfair means. [*86J That the de- ceased never gave any in- structions for the same, nor was the draft of it perused by her. XXVI. Pretences and charges as to a release of all claims set up by the defendant. And at times the said confederate B. pretends that the said C. in her life-time executed some deed or other instrument in writing, whereby she acquitted released and discharged him the said B. from the payment of all sums and sum of money due from him in respect of the matters aforesaid, and from all claims and demands whatso- ever in respect thereof, or to some such or the like purport or effect. Whereas plaintiff charges the contrary thereof to be true, and moreover that the said C. never did make any such release or dis- charge to him the said B. as hereinbefore pretended ; or if she did give or execute the same (but which plaintiff does not admit) she was grossly deceived and imposed upon in relation thereto, and that the same was obtained from her, or she was prevailed on to execute the same by some unfair means or practices used in that behalf *by the said B. And as evidence thereof plaintiff charges that the said 0. never gave any directions or instructions whatsoever to any per- son to prepare the same, nor was the same drawn or prepared by any person employed by or on the behalf of the said C, but that* such pretended release or instrument if any such there were was drawn or prepared by or under the order or directions, or from the instructions of the said B. and by some person employed by him. And plaintiff moreover charges that no draft of the said pretended release or instrument was perused by the said C. or any person on her behalf at any time previously to the execution thereof, nor was the same sent to or laid before any person for such purpose. And plaintiff further charges that the said pretended release or instru- BILLS RELATING TO ANNUITIES. ob ment was produced and brought to the said C. ready drawn and That the re- prepared for execution, and she never perused or read over the same, ^^„|!^^j.gar°' nor was the same read over to her, or however not truly in her hear- f^p execution ing, nor were the contents thereof made known or fully explained and -was not to her at any time previously to or at the time of the execution explained to thereof, but the said pretended release or instrument was stated or represented to her to be of some purport tenor or effect different from what the same really was, and that she would not have signed or executed the same in case she had known or been fully apprised of the real purport tenor and contents thereof. And -plaintiff fur- That the de- ther charges that a considerable sum of money was due and owing fendant was from the said B. to the estate of the said 0. plaintiff's father, and t^e^deceased also to the said C. or one of them on the accounts aforesaid at the and paid no time of the execution of the said pretended release or instrument, part of the notwithstanding which the said B. did not pay all or any part of such sf3^eratioQ*'°for money, nor any sum of money whatsoever, as the consideration for the release. her executing the said pretended release or instrument, nor did the said C. receive any other consideration whatsoever for the same ; but nevertheless the said B. refuses to discover or disclose, as plaintiff Defendant re- humbly insists he ought to do, by whom and from whose orders and *^"5^^ }° ^^^' instructions and by whose directions the said pretended release was t°culars.^ ^^'^' drawn or prepared, and where, in whose presence, and when the same was executed by the said C. and the names and places of abode of the subscribing witnesses thereto. And under the circumstances Charge that aforesaid, plaintiff charges and insists that the said pretended release *® ^}T^t or instrument (if any such was executed) ought to be delivered up cancelled, to be cancelled as having been fraudulently and unfairly obtained from the said C. ; but nevertheless the said confederate insists upon the contrary, and claims the full benefit of the said pretended release or instrument, and threatens and intends in case plaintiff shall proceed at law against him touching the matters aforesaid, to set up the said pretended release or instrument in bar thereto, or to any action to be brought in that behalf, &c. *3. BILLS RELATING TO ANNUITIES." [ *87 ] XXVII. Bill hy an annuitant for an account of money produced hy sale of timber, which had been felled for the purpose of redeeming his annuity, and had been applied hy the trustees in discharge of the arrears of another annuity. Humbly complaining showeth unto your lordship your orator J. B. Grant of an- of, &c. That by indenture bearing date, &c. C. S. of, &c. did ^^^ityt°Pl^i"- » Annuities, given by a will, though payable out of the personal estate or general funds of the testator, are generally governed by the principles applicable to a devise of real estate. Broadhurst v. Broadhurst, 1 Paige, Ch. R. 331, per Walworth, Ch. 87 BILLS RELATING TO ANNUITIES. grant unto your orator an annuity of £ payable half yearly during the life of the said 0. S. and for the better securing the re- payment thereof the said C. S. did thereby assign unto or in trust for your orator the dividends and interest of the sum of £ 3 per cent, consolidated bank annuities then standing in the names of, &c. Power to re- as trustees named in the marriage settlement of the said 0. S. And purchase. j^ ^^^ thereby provided and agreed that the said C. S. should be at liberty to re-purchase the said annuity upon giving three months no- tice thereof to your orator his executors administrators and assigns. As in and by, &c. And your orator further showeth that the said C. S. being entitled as tenant for life in possession of certain real es- Grantor desi- tates hereinafter mentioned, and the said 0. S. having proposed to reus to re- purchase the said annuity upon the terms provided by the said inden- pnrchase gave f j.^, , n"''^ ,, .^.i c a power of at- ^^'^^ °i ^^^ ^^J of and to raise the. sum necessary tor torney to three that purpose by a fall and sale of timber then standing upon the said of the defend- estates, to which your orator consented and agreed, the said C. S. timber. ^ ^^^ executed a certain instrument in writing or power of attorney bear- ing date, &c. whereby after reciting, &c. [he appointed I. H. of, ^e. W. B. of, ^c. and W. 0. of, ^c. three of the defendants as the at- torneys, to fell the timber and to sell and to apply the produce in the redemption of the annuity.'] And your orator further showeth that Declaration of by an instrument in writing bearing date, &c. [being a declaration monV^to *be "/ ^'""^^ ^^** ^^^ money received by the trustees by the fall of timber raised should '^<^^ to i^ applied in the re-purchase of plaintiff's annuity.'] As in be applied in and by, &e. And your orator further showeth that after the exe- th'^annuU*"^ cution of the said last-mentioned instrument the said I. H. W. B. and W. C. by virtue of the said power of attorney caused divers Large qnanti- large quantities of timber which were growing on the said manors f u (?^ ^^T^h^ ^^^ estates or some of them to be felled or cut down and sold and moneys rec- ^ disposed of, and the said W. 0. received the moneys arising by such eivedby "W.C. sales which amounted in the whole to the sum of £ and upwards. and refusal by And your orator further showeth, that the said W. C. notwithstand- Where a father gave by his will certain personal property, in trust, to pay out of the profits, an annuity for the support of his son, it was held, that the annuity was ina- lienable, and could not be reached in anticipation, by creditors. Olule v. Bool, S Paige, Ch. R. 83. The next of kin of an intestate cannot file a bill for the arrears of an annuity due the intestate, but such bill should be filed by the administrator; and unless the persons filing such bill, as next of kin, are entitled to administration, the bill will be dismissed. Clason v. Lawrence, 3 Edw. Ch. 48. The court will not interfere with the exercise of a discretionary power given to executors, to increase an annuity. Mason v. Jones, 3 Edw. Oh. 497. A bill in equity will lie, to enforce pay- ment of an annuity charged on land. Townshend v. Duncan, 2 Bland, 45. In a suit in equity for the arrears of an annuity, the decree should not only be for the sums already due, and interest from the times at which they were payable, but should reserve liberty to apply to the court from time to time, to extend its decree so as to embrace sums afterwards becoming payable. Marshall v. Thompson, 2 Munf 412. An annuity was given by will to a wife of the testator, payable on the 1st of March, and the testator died in August : held, that the annuitant was entitled to the fall annuity on the 1st of the following March. McLemore y. Goode, 1 Harp. Ch. 272; see also, Craig v. Oraig, 1 Bailey, Ch. 102. Au interest in an annuity may be reached by a creditor's bill, under the Revised Statutes of New York. Sillick v. Mason, 2 Barb. Ch. R. 79. If the land on which an annuity is charged, is sold during the pendency of a suit in equity to enforce the same, the court, without noticjng the purchaser ^CTrf«ra A claim against the assignees of a bankrupt, under the laws of the United States' on the ground of a trust in the assignees, and not on the ground of a debt due from the bankrupt, is within the jurisdiction of the chancery court. Denston t. Harris, 2 Edw. Ch. 37. A solvent partner cannot call upon the assignees of a bankrupt co- partner, or partnership debtors, who hare bond fide settled with the assignees, to account for the partnership property, in order to get possession of the property, for the purpose of distribution among the partnership creditors. The right of the assignees to distribute the fund is equal to his, at law, and superior to it in equity. Murray v. Murray, 5 Johns. Ch. R. 60. The assignees, and not individual creditors, are the proper parties to sue for property fraudulently conveyed by a bankrupt. Edwards v. Coleman, 2 Bibb, 204. But where the assignee of a bankrupt refuses to 11 94 BILLS BY ASSIGNEES, effects of C. H. H. late of, &c. banker, bankrupt.(l) That the said [ *95 ] *0. H. H. was in and before the month of seised in fee-simple or otherwise well entitled to him and his heirs, subject only to an estate for life to his wife E. A. H. in case she should survive him of Conveyance and in the manor, &c. And your orators further show that by cer- to the bankers ^^in indentures of lease and release bearing date respectively , ^IllZT tlie release being made or expressed to be made between the said C. H. H. of the first part, S. 0. H. of, &c. of the second part, and T. H. L. M. S. B. C. G-. and H. H. all of, &c. bankers, and five of the defendants hereto, of the third part, the said C. H. H. by way of securing to the said T. H. and his said copartners all such sums of money as should be advanced by them to or for the use of him the said 0. H. H. granted released and confirmed unto thp said T. H. &c. their heirs and assigns all those the aforesaid manor, &c. [empower- The bankers ing the defendants to 8611.} As in and by, &c. And your orators accept certain further show unto your lordship that the said T. H, and his said co- the'bankrupt" Partners allege, that upon the credit of the said security they the which they ' said T. H. and his said copartners accepted bills drawn upon them were obliged by the Said C. H. H. to the amount of £ over and above the to pay. money of the said C. H. H. in the hands of the said T. H. and his said copartners, and when the same became due the said C. H. H. did not provide them with money for the payment of the said bills or any of them, and the said T. H. and his said copartners were (1) The 6 Geo. 4, c. 16, s. 88, (following the 5 Geo. 2, c. 30, s. 38) enacts, that no suit in equity shall be commenced by the assignees, without the consent of the major part in value of the creditors who shall have proved under the commission, present at a meeting pursuant to notice given in the London Gazette for that purpose ; pro- vided that if one-third in value or upwards of such creditors shall not attend such meeting, the assignees shall haye power, with the consent of the commissioners, testified in writing under their hands, to commence such suit. It should appear on the face of the bill that the assignees have authority to com- mence the suit; see form XXXIV. In Bx parte Whitchurch, 1 Atk. 90, it was decided, that the creditors cannot give a valid general authority to assignees to institute suits, but that there must be a meet- ing to sanction each suit ; and in the case of Ocklestone v. Benson, 2 Sim. & Stu. 265, a plea that the bill, which was filed by the assignees of the bankrupt, was filed by them without the consent of the major part in value of the creditors pursuant to the 5 Geo. 2, was allowed ; and see Wilkins v. Fri/, 1 Mer. 250, Eden's B. L. p. 342. To a suit instituted by assignees in the object of which the creditors have no in- terest, as to enforce a persona! claim of indemnity, the consent of the creditors is not necessary; nor in such a case would the dissent of some of the assignees prevent the others from instituting a suit to assert their right; Wilkins v. Fry, 1 Mer. 244, 262 ; S. 0. 2 Eose, 371. bring suit to set aside a fraudulent conveyance by the bankrupt, any creditor may bring such a bill. Sands v. Codwise, 4 Johns. R. 536. Where the complainant in a creditor's bill, knowing that a defendant has been discharged in bankruptcy, does not, in his bill, impeach the certificate, for fraud or other cause, and the answer sets up the certificate in bar, the complainant cannot, in opposition to a motion to dis- solve an injunction which has been granted on the bill, read affidavits impeaching the discharge. Hubbell v. Cramp, 11 Paige, 310. As to the manner in which a complainant should proceed where a defendant in equity has been discharged subse- quent to a decree against him, see Alcott v. Avery, 1 Barb. Ch. R. 34'?. A judgment creditor cannot pursue a bankrupt by bill, after he has proved his debt in bankruptcy. Hoxton V. Corse, 4 Edw. Oh. 585. Where the complainant in a bill has been dis- charged, the assignee may come in and file a supplemental bill; and if he does not do so, the complainant may make him a defendant. Springer v. Vanderpool, 4 Edw. Ch. 362. ON BEHALF OP BANKKTJPTS' ESTATES. 95 obliged to take up and pay the same with their own proper moneys. And your orators further show that the said T. H. and the said de- Sale by auc- fendants his copartners with the privity and approbation of the said tion of the C. H. H. and E. A. his wife, caused the said manor and premises ^^^^^^^ ^on- to be put up to sale by public auction on the day of by Mr. 0. and the same were then sold to one E. R. Esq. who was the highest bidder at the said sale for the sum of £ . And your orators further show unto your lordship that after the said sale and on or about a commission of bankrupt under the great seal of Commission Great Britain was awarded and issued against the said C. H. H. of bankrupt and he was thereupon duly found and declared a bankrupt by the ^^'^"'^ major part of the commissioners in and by the said commission named and authorized, and your orators were duly chosen assignees of his estate and effects, and the usual assignment of his personal estate and a bargain and sale of his real estate were duly made to your orators by the major part of the commissioners in the said commis- sion named. And your orators further show unto your lordship Conreyance that by indentures of lease and release bearing date respectively &c. to the pur- *the release being of six parts and made between, &c. the said manor ^l'^'*^''- and other premises were in consideration of the said sum of £ [ *96 ] duly conveyed unto the said E. E,. in manner therein mentioned. And your orators further show unto your lordship that the said price Consideration or sum of £ was paid by the said E. R. to the said T. H. and paid for the his said copartners and that the said T. 11. and his said copartners Purchase of afterwards paid the sum of £ part thereof as and for the con- ufg estate ot^ sideration or value of the life estate to which the said E. A. H. was the bankrupts entitled in remainder in the said manor and premises as aforesaid, '^'^^• but the said T.- H. and the said defendants his said copartners have q^jjg bankers ever since retained and do novv retain in 'their hands the residue of retained the the said sum of £ which after satisfying their own debt amounts surplus of the to between £ and £ , and they have from time to time P"rchase-mo- •II' ^ 111 °^y' *™r sat- mixed such residue with their own moneys and employed the same isfaction of in their trade or business of bankers or have otherwise made interest t^ieir own thereof. And your orators further show that they by themselves and ,''''' fl^ ^™" . . " , . plovcQ tnc their agents have repeatedly applied to the said T. H. and his said same in trade. copartners and requested them to pay to them as assignees as afore- Application to said the residue of the aforesaid purchase-money after satisfying their them. own debt together with interest thereon from the time they received the same. And your orators well hoped that the said defendants would have complied with such your orators' reasonable requests as in justice and equity they ought to have done. But now so it is, &c. [see form IV. p. 5.] And the said T. H. L. M., &c. pretend that Pretence that the moneys produced by the sale of the said manor and premises 'be purchase- were to an inconsiderable amount, and not sufEcient after deducting "02";^ ^^hl'°" the aforesaid sum of £ to pay and satisfy the debt due to them, and insu'ffi- ' Whereas your orators charge the contrary of such pretences to be cient to p^y the truth, and so it would appear if the said defendants T. H. L. '^^ '^^'^*- M. &c. &c. would set forth as they ought to do a full and true account '^^^^^^^ *'^* of all and every the dealings and transactions between the said de- fendants and the said C. H. H. and of what is due to the said defend- ants in respect thereof, and also a full and true account of the moneys 96 BILLS BY ASSIGNEES, received by them from the sale of the said manor and premises and Charge as to of their application thereof. And your orators further charge that the other de- the said Other defendants severally claim some interest in the said fendants, residue of the said purchase-money now in the hands of the said T. fct™esUn'the H. and his said copartners, but how they make out the same they purchase- respectively refuse to discover. All which actings, doings, &c. [see money. form VI. p. 6.] Whether the said C. H. H. was not in and before The interro- ^he month of seised in fee-simple or otherwise well entitled to gating part, j^j^ ^^^ j^-^ j^^-^^ subject as aforesaid of and in the manor lands and premises hereinbefore mentioned or some and what part thereof, or of and in some other and what lands and premises ; And whether such indentures of lease and release as are hereinbefore stated to bear date respectively the were not made and executed between such parties and to such purport and effect as hereinbefore set forth, or some other indentures of lease and release of some other and what date between some other parties and whom, to such or the like or some other and what purport and effect ; And whether upon the credit of the aforesaid security the said T. H. and his copartners r *97 1 *°'^ ^"y ^^^ which of them did accept any and what bills drawn upon them or some or one and which of them by the saiS C. H. H. ; And whether to the amount of £ or to what amount over and above the money of the said C. H. H. in the hands of the said T. H. and his said copartners ; And whether when the same became due the said C. H. H. did or not provide them with money for the pay- ment of the said bills or any and which of them ; And whether the said T. H. and his said copartners did take up and pay the same or any and which of them with their own proper moneys or how other- wise ; And whether the said T. H. and the said ^defendants his copartners with the privity and approbation of the said C. H. H. and E. A. his wife did not cause the said manor and premises to be put up to sale by public auction at or about the time hereinbefore mentioned or at some other time and when; And whether not by Mr. C. or by whom ; And whether the same were not then sold to the said E. R. for the sum of £ — — or at what other price ; And whether the said E. R. was not the highest bidder at the said saW for the sum of £ or how otherwise ; And whether after the said sale and on or about a commission of bankrupt under the great seal of Great Britain was not awarded and issued against the said C. H. H. ; And whether he was not thereupon duly found and declared a bankrupt by the major part of the commissioners in and by the said commission named and authorized or how otherwise ; And whether your orators were not duly chosen assignees of his estate and effects; And whether the usual assignment of his personal estate and a bargain and sale of his real estate were not duly made to your orators by the major part of the commissioners in the said commission named or how otherwise ; And whether the said manor and other premises were not duly conveyed to the said E. R. by such indentures of lease and release as aforesaid or by some other and what indentures ; And whether the said price or sum of £ or some other and what sum was not paid by the said E. R. to the said T. H. and his said copartners or one and which of them ; And ON BEHALF OF BANKRUPTS' ESTATES. 97 whether the said T. H. and his said copartners did not afterwards pay the sum of <£ or some other and what sum part thereof as or for the consideration or value of the life-estate to which the said E. A. H. was entitled in remainder in the said manor and premises as aforesaid, or how otherwise ; And whether the said T. H. and the said defendants his copartners have not ever since retained and do not now retain in their hands the residue of the said sum of £, , and if so why and for what reason ; And whether after satisfying their own debt the same doth not amount to between £ and & and to what sum in particular ; And whether they have not from time to time or at some time or times and when mixed such residue or some and what part thereof with their or some or one and which of their own moneys ; And whether they have not and when and for how long employed the same or some and what part thereof in their trade or business of bankers, or otherwise and how made interest thereof or some and what part, or how otherwise ; And whether your orators have not made such applications and requests to the said defendants as hereinbefore mentioned or some other and what applications and requests *to such or the like or some other [ *98 ] and what effect ; And whether they have not respectively refused to comply therewith, and if so why and for what reason ; And that the Interrogatory said defendants may set forth a true and full account of all and for 'he ac- every the dealings and transactions between the said defendants or count of deal- either of them and the said C. H. H., and of what is due to the said defendants in respect thereof; And also a full and true account of all and every the sum and sums of money which hath or have been received by them or either of them, or by any other person or persons by the order or for the use of them or either and which of them, for or in respect of the produce or money arising by sale of the said manor and premises or any part thereof, and when and from whom all and every such sums were respectively received, and how the same were applied. And that the said defendants may Prayer. answer the premises ; and that an account may be taken of the moneys received by the said defendants T. H. and his said copartners from the sale of the said manor and lands of G. and of their appli- cation thereof, and also an account of the dealings and transactions of the said defendants with the said C. H. H. and of the debt due to them in respect thereof, and secured bj the aforesaid manor and premises ; and that the balance which shall appear to be due from them upon the accounts aforesaid together with interest upon such balance from the time the said purchase-moneys were received by them as aforesaid may be paid to your orators. \_An A for further relief, see form VIII. "p. 5.] May it please, &c. [see form No. 1, p. 6.] J. L. 98 BILLS BY ASSIGNEES, Lease granted to the bank- rupt. The assign- ment to the defendant concerted be- tween him and the bank- rupt. [*99] Consideration not paid. Assignment made to de- fraud the cre- ditors. Commission of bankrupt. Applications to the defend- ant. XXXI. Bill hy the assignee of a bankrupt' s estate to set aside an assignment of the lease of certain premises, made to the defendant hy the bankrupt a short time previously to his bankruptcy. Humbly complaining showeth unto your lordship your orator S. S. of, &c. assignee of the estate and effects of T. D. late of, &c. bank- rupt.(2) That by an indenture of lease bearing date on or about I. N. of, &c. demised unto the said T. D. certain messuages or tenements, &c. then in the occupation of the said T. D. with the ap- purtenances to hold from the day of for the term of years under and subject to the payment of the yearly rent of £ and to the performance of the several covenants conditions and agreements therein contained. As in and by the said indenture of lease which is now in the custody or power of W. C. of, &c. (the defendant hereinafter named) reference being thereunto had will more fully appear. And your orator further showeth unto your lordship that in or about, &c. the said T. D. being insolvent and unable to pay his creditors, and well knowing that a commission of bankrupt would *speedily be issued against him, the said T. D. concerted and agreed with said defendant W. C. to assign to him the said indenture of lease for a nominal consideration of £ to be expressed in the deed of assignment ; and the said T. D. caused a deed of assignment to be prepared accordingly by his own solicitor and the same was dated on, &c. and was executed by the said T. D. on the day of the date thereof; and the said T. D. then on or about that time, delivered the said indenture of lease and assignment to the said defendant. And your orator further showeth that the said W. C. did not in fact pay to the said T. D. the said sum of £ ; and that the said assign- ment was so made in order to prevent the just creditors of the said T. D. from having the benefit of the said lease in case of his bank- ruptcy, and that the said defendant might hold the same in trust for the said T. D. or some part of his family or for the joint benefit of the said T. D. and the said defendant. And your orator further showeth unto your lordship that on or about, &c. a commission of bankrupt under the great seal of Great Britain was awarded and issued against the said T. D., &c. [stating the proceedings under the commission, vide ante, p. 95.] As in and by the said commission and the proceedings had thereunto when produced will appear. And your orator further showeth unto your lordship that he hath himself and his agents repeatedly applied to the said defendant W. C, and hath requested him to deliver up the said indenture of assignment to be cancelled, and also to deliver up to your orator the said inden- ture of lease in order that your orator may dispose of the same for the benefit of the just creditors of the said T. D. ; with which just and reasonable requests your orator well hoped that the said W. C. would have complied as in justice and equity he ought to have done. But now so it is, &c. [see form IV. p. 5.] And the said defendant (2) See note (1) ante, p. 94. ON BBHAL]? OF BANKRUPTS' ESTATES. 99 pretends that he duly paid to the said T. D. the said consideration Pretence that of £ at the time of his executing the said indenture of assign- '^^ considera- ment. Whereas your orator charges the contrary thereof to be the „^^^ . truth. And your orator further charges that the said defendant is contrary. a person in poor circumstances, and had not at that time a sum of Defendant in £ in his possession or power. And the said defendant refuses poor circum- to set forth in what manner he paid the said sum of £ and stances. when and from whom he received or obtained the same or by what means he was enabled to make such payment. And at other times Pretence that the said defendant pretends that the said T. D. was indebted to him ^^^^ ^j^debted at the time of executing the said assignment in the said sum of ^g tjjg ^efend- £ , and that the said indenture of assignment was executed by ant. the said T. D. in consideration of the said debt, but when and how the said T. D. so became indebted to him, the said defendant refuses to discover. And your orator charges that if the said T. D. had Charge that at any time been indebted to the said W. 0. he had by some means ^^^ debt had fully satisfied the debt. And your orator further charges that the ,^^^ ^^J^ ^ ' said T. D. first proposed to the said defendant the making of the bankrupt said assignment, and that the said defendant at the time the same made the first was executed knew or believed or had some reason to know believe or P™.P°5^J^ to suspect that the said T. D. was in embarrassed circumstances and premises, and was about to become bankrupt; and the said defendant *accepted that the de- such assignment with a view to the advantage of the said T. D. or S"? th' h'^^k some part of his family. And your orator further charges that it mpt ^as in- was agreed or understood that the said defendant was not to hold solvent. the said lease for his own sole benefit, and as his own sole property. [ *100 ] And your orator further charges that the said lease was of much charge as to greater value than the said sum of £ and was in fact worth the value of £ . And your orator further charges that the said T. D. caused ^^^ ^^^^®- the said assignment to be registered on the day it was executed ; and that the solicitor of the said T. D. at his request paid an expe- dition fee for the registering thereof. All which actings, &c. \_see form VI. p. 5, interrogating to the stating and charging parts.^ And that the said defendant may answer the premises. And that Prayer. the said indenture of assignment of the day of may be declared void, as fraudulent against your orator and the rest of the creditors of the said bankrupt; and that the said W. C. may be de- creed to deliver up the said assignment to your orator to be can- celled, and may also deliver up to your orator the said indenture of lease. \_And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] Pray subpoena against W. 0. 100 BILLS BY ASSIGNEES, Testator's will. His death. Probate by the executrix. XXXII. Bill hy the assignees of tJie estate of a bankrupt, who was entitled to one moiety of Ms father's residuary estate, against the executrix and trustees of the will, and the son, who was entitled to the other moiety, the dividends of the entirety being given to the widow for life; — Prayer for an account of testator's personal estate, debts, and legacies, that the residuary estate may be ascer- tained, and one moiety carried over to the bankrupt's account, subject to the testator's widow's life interest therein, and that an inventory may be made of the effects bequeathed to her for her life and deposited with a master. Humbly complaining show unto your lordship your orators R. H. of, &c. J. H. G. of, &c. and R. M. of, &c. That T. B. late of, &c. duly made and published his last will and testament in writing bear- ing date on or about and thereby amongst other things gave and bequeathed, &c. As in and by, &c. And your orators further show unto your lordship, that the said testator departed this life on or about the day of without having altered or revoked his said will leaving the said M. B. his widow and the said W. B. and T. B. in the said will named, him surviving, and the said M. B. hath since his death duly proved the said will in the proper Ecclesiastical Court and taken upon herself the executorship thereof; and the said M. B. together with the said H. B. and R. A. who interfered in the administration of the property of the said testator, under and by virtue of the trusts of the said will possessed themselves of the per- sonal estate and efiFects of the said testator to a large amount and value, and much more than sufiScient to pay and satisfy his funeral expenses just debts and legacies ; and the said M. B. H. B. and *R. A. lent and advanced to the said W. B. the son of the said tes- tator (another defendant hereto) the sum of £, part of the said testator's residuary estate, and they also lent and advanced to other persons other parts of the said testator's residuary estate upon per- sonal security instead of investing the same in government or real security, and the said defendants permitted a part of the said tes- tator's estate which was owing at the time of his death upon personal security to remain outstanding upon such security whereby the same has been lost, and in particular a sum of £ and interest due from I. C. of, &c. was permitted to remain unpaid, although the same might have been recovered by the said defendants after the death of the said testator if due diligence had been used herein ; and the Commission Said I. C. hath lately absconded and is become insolvent. And your orators further show unto your lordship that a commission of bank- rupt under the great seal of Great Britain bearing date on or about, &c. hath been awarded and issued against the said T. B. the son, who hath been thereupon duly found and declared a bank- rupt, and the usual assignment of his estate and effects hath been duly made and executed to your orators who were duly chosen by the creditors as the assignees of the said bankrupt's estate. (3) And (3) See note (1), ante, p. 94. [ *101 J Loan of testa- tor's moneys to his son "W. B. and to other persons. Other moneys lost by de- fendant's ne- glect in not calling in the same. of bankrupt against testa- tor's son. ON BEHALF OF BANKRUPTS' ESTATES. 101 your orators further stow unto your lordship that they have by themselves and their agents repeatedly applied to the said M. B. Applications. H. B. and R. A. and requested them to come to a full and true account with your orator, for the personal estate and effects of the said testator, and to invest and secure the clear residuary estate of the said testator possessed or received by them, or which but for their wilful default or neglect might have been so possessed or re- ceived, so that the same might be forthcoming at the death of the said M. B. for the benefit of your orators as assignees as aforesaid and such other persons as may be interested therein. And your orators well hoped that the said M. B. H. B. and R. A. would have complied with such your orators' reasonable requests as in justice and equity they ought to have done. But now so it is, &c. [see form IV. f. 5.] And the said defendants sometimes pretend that Pretence that the personal estate and effects of the said T. B. the said testator the personal were small and inconsiderable and not more than sufficient to pay and estate is msuf- satisfy his funeral expenses debts and legacies ; and that they have applied all such personal estate and effects in a due course of ad- ministration. Whereas your orators charge the contrary thereof to Charge the be the truth, and so it would appear if the said defendants would set contrary. forth as they ought to do a full and true account of all and every the personal estate and effects of the said testator which have been possessed or received or but for their wilful default or neglect might have been possessed or received by them the said defendants or either of them or by their or either of their order or to their or either of their use and of their application thereof. And your ora- C!harge that tors further charge that when the clear residuary estate of the said .(he. clear resi- testator is ascertained, a moiety thereof ought to be invested in this duary estate honorable court to the account of "the moiety of T. B. the *son of [ *102 ] the residuary estate of the said testator T. B., in order that your ought to be orators as the assignees of the said.T. B. for the benefit of his ere- invested and ditors may be the better able to sell and dispose of the expectant carried to the interest of the said T. B. in such moiety upon the death of the said ^ount to eu- M. B. ; and your orators charge that in computing such moiety credit able the plain- ought to be given for the sum of £ advanced by the said de- *'^^ '° sell Ms fendants M. B. H. B. and R. A. to the said W. B. as aforesaid as ter^gt_^^ being advanced out of the moiety to which the said W. B. will be charge as to entitled upon the death of the said M. B. And your orators further the loan made charge that the said defendant M. B. ought to make out an inven- *° ^- '^• tory of the said testator's household goods plate -linen and china to Charge that which she is entitled for her life; and such inventory ought to be ought'tomake signed by the said M. B. and deposited with one of the masters of out an inveu- this honorable court for the benefit of all parties interested therein, tory of the All which actings, &c. [see form VI. p. 5, interrogating to *^e queathed to' stating and charging parts.^ And that the said defendants may an- her for life, swer the premises. And that an account may he taken of the per- Prayer, sonal estate and effects of the said testator possessed by or come to the hands of the said defendants M. B. H. B. and R. A. or any or either of them, or to the hand of any other person or persons by their or either of their order or to their or either of their use, or which but for their wilful default or neglect might have been pos- 102 BILLS BY ASSIGNEES, sessed or received by them ; and also an account of the testator's funeral expenses debts and legacies, and that the said testator's per- sonal estate may be applied in payment thereof in a due course of administration. And that the residue and clear surplus thereof may be ascertained and secured by and under the direction of this honor- able court ; and that one moiety thereof may be carried to an ac- count "the moiety of T. B. in the residuary estate of the testator T. B." subject to the payment of the interest or dividends thereof to the said M. B. during 'her life ; and that the said defendant M. B. may make out an inventory of the said household goods plate linen china and other effects of the said testator given to her the said M. B. for her life, and that such inventory may be signed by the said M. B. and deposited with one of the masters of this honorable court. lAnd for further relief, see form VIII. p. 5.] May it please, &c. [^See form No. 1, p. 6.] Pray subpoena against M. B. H. B. B. A. and W. B. [ *103 J Bankrupt in business as a merchant. Defendant J. P. G. also a merchant and agent to the other defend- ants carrying on business under two firms, and al- lowed bythem a commission on all consign- ments. The bankrupt being about to ship goods J. P. G. applied to procure the consignment for the firm of G. H. and T. *XXXIII. Bill hy the assignee of a bankrupt's estate, for an ac- count of mercantile dealings and transactions between the defen- dants and the bankrupt, and for payment of the balance due from the defendants. Humbly complaining showeth unto your lordship your orator J. A. of, &c. assignee of the estate and effects of W. V. B. late of, &c. ^bankrupt deceased. (4) That the said W. V. B. during his life-time and before his bankruptcy carried on business at L. as a foreign merchant, and that J. P. G. of L. aforesaid, also carried on business at the same place as a merchant under the firm of J. P. Gr. and Co. ; and that the said J. P. G. was the agent in L. of G. H. and T. who then carried on and now carry on business in copartnership in L. under the firm of G. and H., and at R. under the firm of G. H. and T. ; and the said J. P. G. was allowed by the said firms a commission upon all consignments which he procured to the said house at R. And your orator further showeth that in the month of May 1820 the said W. V. B. was about to ship certain goods for R., and that the said J. P. G. was desirous of obtaining the consignment for the said house of G. H. and T., and he thereupon promised himself to make advances to the said W. V. B. and he also engaged that bills on account of the goods shipped should be accepted in favor of the said W. V. B. by the said Messrs. G. and H. of L., on condition that the goods should be consigned to G. H. and T. and the returns made to the said Messrs. G. and H. of L. or to the said J. P. G. in order that they might deduct thereout the amount of their advances. And your orator further showeth that the said W. V. B. assented to the terms so proposed to him, and that the said J. P. G. accordingly (4) See note (1), ante, p. 94. ON BEHALF OF BANKRUPTS' ESTATES. 103 introduced the said W. V. B. to the said Messrs. Gr. and H. and that Arrangements on the 31st day of May 1820 the necessary arrangements for the completed. dealings between the said W. V. B. and the said Messrs. G. and H. hereinafter mentioned being concluded, the said W. V. B. consigned Bankrupt various packages of wool and other goods at the house of the said consigned Messrs. G. H. and T. at R., and drew upon them bills of exchange |°^'^atVtnd to a small amount against the consignments, and at the same time drew bills up- remitted to them the bills of lading and the original invoice of the on tiiei"- goods to the said Messrs. G. and H. In L. And your orator further Sale of the showeth that a sale was made of the said goods at R. by the said goods and Messrs. G. H. and T. and the proceeds of the sale were invested in ^ested^hi'cof- coffee, and such coffee was consigned by the said Messrs. G. H. and fee,wl'.ichwas T. to the said Messrs. G. and H. or to the said J. P. G. on account sold, and the of the said W. V. B., and. such coffee was sold and the proceeds gg°y^g^^bT the thereof received by the said Messrs. G. and H. or by the said J. P. defendants. G. And your orator further showeth unto your lordship that between other con- the 31st May 1820 and the time of his becoming bankrupt hereinafter signments mentioned, the said W. V. B. made in a similar way at different times J"^*^^ ^° ^ . . , r. 1 , 1 •^■1,1 large amount, very many consignments ot goods to a large amount m value to the said Messrs. G. H. and T. in B., and in respect thereof drew bills on the said J. P. G. and on the said Messrs. G. and H. in L., and the said Messrs. G. H. and T. made sale of the goods so consigned to them and invested different parts of the proceeds in the purchase of other merchandise being principally coffee, and consigned some part of the return cargoes to the said Messrs. G. and H. in L., and the other parts thereof to the said J. P. G. at L., and the said Messrs. G. and H. and J. P. G. respectively made sale of the produce so consigned to them. And your orator further showeth *unto your [ *104 J lordship that by the arrangement so made as aforesaid between the The proceeds said W. V. B. and the said J. P. G. and Messrs. G. and H., the of the bank- proceeds of the said W. V. B.'s consignments, whether the same rupt's con- were remitted to the said Messrs. G. and H. or to the said J. P. G., hlld™iable to were held liable to answer the advances of both firms to the said answer the W. V. B., and one general account was kept of such adventures, and f''^^^^''®^ °^ the said Messrs. G. and H. rendered accounts to the said J. P. G. ° ^'^^' of the goods sold by them, and the said J. P. G. rendered accounts to the said Messrs. G. and H. of the goods sold by him on account of the said W. V. B-) and they rendered one joint account thereof. One joint ac- so far as any accounts were rendered by them to the said W. V. B. count render- And your orator further showeth unto your lordship that at the time bankrupt of his- bankruptcy hereinafter mentioned, there were moneys to a At the time of considerable amount in respect of the transactions hereinbefore the bankrupt- mentioned in the hands both of the said J. P. G. and of the said cy large sums Messrs. G. and H. due to the said W. V. B. ; and there were also qu^tufjgof considerable quantities of goods unsold belonging to the said W. V. goods were in B. in the hands of the said Messrs. G. H. and T. at R., which have ^^^ ^^^^^ of since been sold and the proceeds remitted to the said Messrs. G. and ^^^^^ e en - H. and J. P. G. or one of them ; and there is now a considerable sum of money due and owing from the said G.'and H. and the said J. P. G. to the estate of the said W. V. B. And your orator further showeth commission unto your lordship that previously to the month of August 1821 the of bankrupt 104 BILLS BY ASSIGNEES, against w. V. said W. V. B. became bankrupt, and that a commission of bankrupt ■ . under the great seal [stating the appointment of assignees and the another ap°- usual assignment to them — that one of the assignees became a pointed as- bankrupt, whereupon the plaintiff became sole assignee.'] And your signees. orator further showeth that he has by himself and his agents Plaintiff's co- repeatedly applied to the said G. and H. the said T. being abroad, becamrba^nk- ^^^^ ^'^0 ^'^ ^^^ Said J. P. G". and requested them and each of them to rupt. come to a full and true account with your orator in respect of their Applications aforesaid dealings with the said W. V. B., and to render to your to the defend- orator a distinct account of such dealings, so that your orator may be ^°*^' enabled to judge of the result thereof, and to pay to your orator what is due to him as such assignee as aforesaid upon the balance of such accounts. And your orator well hoped that the said G. H. and J. P. G-. would have complied with such your orator's reasonable requests as in justice and equity they ought to have done. Bdt NOW so IT IS may it please your lordship that the said G. and H. and J. P. Gr. combining and confederating together with the said T. and with divers other persons, &c. [see form IV. p. 6,] refuse so to do, sometimes Pretence that pretending that they have already made to your orator full true and defendants particular accounts of all their dealings and transactions with the fu^iraccount". ^aid W. V. B. Whereas your orator charges that notwithstanding Charge that ^^^ Said confederates have rendered some accounts to your orator, the accounts yet the Same are not full or accurate accounts, and that the same rendered are (Jq j^q^ contain an account of all sales of goods sold by the said and charge as Messrs. Gr. H. and T. on account of the said W. V. B. at R. or of to particular the invoices of goods bought there on account of the said W. V. B. matters of ac- or of the Sales of such reWrns homeward, or a clear and regular '^°^^ ■ statement of the account current between the said several parties [ *105 ] *respectively and the said W. V. B. And your orator charges that Charge re- repeated applications both verbally and in writing have been made peated appli- by your orator's solicitor to the said defendants to render such ac- rendeToUier "O'^'^ts, but that Such accounts never have been rendered, and that accounts. the said Messrs. Gr. and H. have refused to pay any attention to or to take any notice of the applications so made to them, and that your orator therefore has been and is unable to ascertain the state of the accounts between the said W. V. B. and the said defendants ; hut your orator charges that the said J. P. Gr. and the said G. H. and That the de- T. as such partners as aforesaid are respectively indebted to a large indexed to^ amount to the estate of the said W. V. B. ; and that there is a large thebankrupt's quantity of goods now in the hands of the said Messrs. Gr. PI. and estate; T. belonging to the said W. V. B., or however a large quantity of goods of which no accounts have ever been rendered ; and so your And that the orator charges it would appear if the said defendants Avould set !t™! ^?A'u forth as they ought to do a full true and particular account of all appear II the , ii ^ ■,■ t m ■ ■, accounts re- goods Wares and other merchandize property and ettects remitted quired were and Sent by the said W. V. B. in his life-time and received by the set forth. ga,;d Messrs. G. H. and T. at R., and when such goods and each part thereof were and was received, and when and to whom and at what prices such goods and each parcel thereof were and was sold and what sums of money were received and when and from whom and in what manner by the said Messrs. Gr. H. and T. on account of such ON BEHALF OF BANKRUPTS' ESTATES. 105 sales and each of them, and how such proceeds and every part thereof were and was applied and what goods were purchased there- with for return cargoes, and when and from whom and at what prices such goods were purchased, and what moneys or securities for moneys or goods were remitted to the said J. P. G. and to the said Messrs. Gr. and H. respectively on account of the consignments so made by the said W. V. B. as aforesaid, and when such moneys or securities for money or goods respectively were received by the said defendants respectively, and how and when and to whom and at what prices such goods were disposed of by them, and what moneys had been received by them respectively, and when and from whom on account thereof, and what is the balance now due to them respectively on account of the aforesaid dealings and transactions, and what parts of the said goods wares merchandize and effects consigned by the said W. V. B. as aforesaid to the said Messrs. G. H. and T. remain unsold, and the natures, kinds, quantities, qualities full real and true values of all and every part thereof, and what is become thereof. And your orator charges that the said J. P. G. insists that there is Claims by the a large amount due to him from the said W. V. B., and he insists defendant of that he is entitled to be paid the same out of the moneys due from jq t'jj'e'^^^ ^nd the said Messrs. G. H. and T. to the said bankrupt's estate ; and of a right of the said Messrs. G. H. and T. on the other hand insist that there is retainer. a balance due to them from the said bankrupt's estate, and that they are entitled to be paid the same out of what may be due to the said estate from the said J. P. G. Whereas your orator charges that Charge that in fact there is a balance due to the said estate from each of the said balances are defendants. And your orator charges that the said defendants re- ,"P T™/ ® ,, .•;. . => T lie deienaants. spectively have in tneir possession or power divers books ot account charge as to *accounts invoices bills of lading bills of exchange policies of insu- books of ac- rance vouchers letters copies of letters papers and writings relating count, &c. to the several matters aforesaid or some of them, and by which if pro- [ *106 ] duced the truth thereof would appear, but they refuse to produce the same ; and the said T. is resident at R. and out of the jurisdiction of this court. All which actings, &c. [^seeform VI. p. 5, interrogating to the stating and charging parts.'] And that the said defendants Prayer, may answer the premises ; and that an account may be taken of all the dealings and transactions in respect of the several adventures hereinbefore mentioned between the said W. V. B. and the said J. P. G. and the said G. H. and T. as such partners as aforesaid ; and that the said defendants may be decreed to pay to your orator as the assignee of the estate and effects of the said bankrupt what may be found due from them respectively on taking such accounts. 'And for further relief, see form VIII. p. 5.] May it please, &c. 'See form No. 1, p. 6.] Pray subpoena against Messrs. Gr. and H. and J. P. G-. and subpoena against T. when he comes within the jurisdiction of the court. 106 BILLS BY ASSiaNEES, XXXIV. Bill hy the assignees of a hanhrupfs estate {one of whom had been appointed assignee in the place of a former assign.ee be- come bankrupt,){5) for an account of the proceeds of a shipment of goods made hy the bankrupt, and for a writ of ne exeat regno.{6) The observations of the learned counsel who drew the bill are added. Shipment of States that T. 0. some time in the year , shipped and sent put goods made to D. On board the brig G. a considerable quantity of upholstery, *'y ^- '^- cabinet, and stationery goods, to the value of ^300 and upwards, which goods the said T. C. delivered to and placed under the ca;re of [ *107 ] J. B. *a defendant hereinafter named, who sailed in the said brig in the month of to D. Same placed That the said goods were so delivered to the said J. B. and placed under the care under his care for the purpose of their being sold by him on the ac- a"nt\rthe ''°"°* °^ *^® ^^^^ "^^ ^- ^"^^ ^^ ^^^ ^S^n* in tl^at behalf, and the said purpose of J- B. accordingly undertook to sell the said goods and to account sale. for the proceeds to the said T. C. Sale of part of That on the arrival of the said brig at D. the said J. B. sold and the goods by disposed of a considerable part of the said goods and received the ceived^the '^^' money arising from such sale, but he hath never accounted for the proceeds, and Same to the Said T. C, and the said J. B. being about to leave D. rendered no did on or about the day of ^deliver or cause to be delivered account. ^^^ residue of the said goods to M. D. (a defendant hereinafter named) thVresfdue of ^'^° *^®^ Carried on business at D. under the firm of H. G. and Co., the goods to and the said J. B. appointed the said H. Q. and Co. to act as the M. D. as agent agents of him the said J. B. in respect of the said goods, and to sell ofJ. B. the same and receive the proceeds thereof, and remit the same to Sale by M. D. him. And the said M. D. accordingly sold the said goods and re- but no ac- ceived the sum of £ but he has never accounted to the said J. counts ren- g_ ^^ ^^e said T. C. for the value thereof. n '•„„■ That the said T. C. has since become bankrupt, and a commission UommiSSlOn «,, i-n i i r. ti 11 of bankrupt 01 bankrupt, bearing date the day oi , was duly awarded against T. c. against him, and he was duly found and declared a bankrupt under (5) By the 6Tth section of the 6 Geo. 4, c. 16, it is enacted, that whenever an assignee shall die, or be removed, no action at law or suit in equity shall be thereby abated, but the court in which any action or suit is depending may upon the sugges- tion of such death or removal, and new choice of an assignee or assignees, allow the name of the surviving or new assignee or assignees to be substituted in the place of the former; and that such action or suit shall be prosecuted in the name or names of the said surviving or new assignee or assignees in the same manner as if he or they had originally commenced the same. (6) It is not necessary that the bill should pray the writ, as the intention to go abroad may a'ise in the progress of a cause: see 18 Ves. 353. The writ of ne exeat regno being considered in the nature of equitable bail, will not be granted upon a legal demand, nor under circumstances which would not entitle the plaintiff to bail at law; however the court will grant the writ in the case of a balance of an account admitted by the defendant to be due, but disputed by the plain- tiff, although the party may be held to bail at law, this being considered a case of exception to the general rule ; see Jones v. Sampson, 8 Ves. 593 ; Haffey v. Haffey, 14 Ves. 261; Flack Y.Holm, 1 Jac. & W. 405; Blaydes v. Calvert, 2 Jac. & W. 213; Gardner v. , 15 Ves. 443 ; CoUinson v. , 18 Ves. 353 ; Howden v. Rogers, Dick v. Swinton, 1 Ves. & B. 129, 371 ; Mr. Beames's brief View of the Writ of JSfe exeat Regno. ESTATES. 107 the same, and a provisional assignment having first heen made, your Provisional orator D. M. of L. and A. F. were chosen assignees of the estate assignment and effects of the said bankrupt, and the usual assignment was exe- J' cuted to them accordingly by the major part of the commissioners p' appointed " under the said commission and by the provisional assignee. assignees and That at a meeting of the creditors of the said bankrupt duly held assignment for that purpose on the 9th day of August pursuant to notice ™^ '^ °. ^™" thereof duly given in the London Gazette, it was amongst other things a meeling'au- unanimously resolved that, &c. [^stating the authority given to the tliorizing tiie assignees.']{li) assignees to That the said A. F. having become bankrupt was discharged from ^"^' °'. being an assignee under the said commission, and your orator W. 0. became'bank- was duly chosen an assignee in his stead, and the estate and effects rupt, and a of the said bankrupt have been since duly assigned to and vested in "^^ one cho- your orators. ^^°' That your orators have made frequent applications to the said J. Applications B. and M. D. and requested them to account with your orators as to the defend- such assignees as aforesaid for the value of such parts of the said count. goods as have been sold or disposed of by them respectively, and to pay unto your orators what is due to them in respect thereof. But NOW so IT IS may it please your lordship that the said J. B. and M. D. combining, &c. [see form IV. p. 5,] they refuse to comply with your orators' said requests. And your orators charge that the Charge that J. said J. B. as well as the other defendant M. D. is answerable to your ^- ^"^^ ^l^o M. *orators for the proceeds of the said goods so sold as aforesaid by [ *108 ] the said M. D. or for the value of such goods. And your orators p ^^^.g uabie charge that the said defendants respectively have in their power for the pro- divers accounts, &c. And your orators charge that the said defend- ^^^eds of the ant M. D. for the purpose of and with a view of defeating the claim fhe°?atter'^aud of your orators as such assignees as aforesaid against him the said as to books of M. D. in respect of the transactions hereinbefore mentioned, intends account, &c. to quit this kingdom and to remain out of the jurisdiction of this Charge that court unless he shall be restrained from so doing by the authority of ^ O- intends this honorable court. And your orators charge that the said M. D. kingdom. is liable to account with your orators for the goods of the said T. C. That he islia- as sold by him as aforesaid, and is equitably indebted to your orators ble to account in the amount thereof. And your orators charge that if the said ^^ththeplam- , - T^ini • ^ t* 1 • 1 ■• tiffs, and IS M. D. snail be permitted to go out ot the country without giving equitably in- security to answer what may be found due to your orators the said debted to debt will be lost to your orators. To the end therefore, &c. [see ^^u™'-f u form VI. p. 5, interrogating to the stating and charging parts.'] „yitg jj^g And that the said defendants may answer the premises, and that an country the account may be taken under the direction of this honorable court of JebtwiUbe all and every sum and sums of money which hath or have been re- °^ ' ceived by the said defendants or either of them for or in respect of ^ such of the said goods as have been sold by them respectively, or which without their default might have been received. And that the said J. B. as well as the other defendant may be declared to be answerable for what shall appear to have been received by the said (7) See note (I), ante, page 94. 108 A OBRTIOEARI BILL. M. D. or for what without his default might have been received by him. And that what shall upon the taking of such account be found due from the said defendants to the said T. C. may be paid to your orators as such assignees as aforesaid. [And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1 and 6, p. 6 and 1, and note (r), see also form XI. ante, p. 29.] Pray subpoena against J. B. and subpoena and ne exeat regno against M. D. Observations on the above bill by the learned counsel who drew it : "It is doubtful whether a ne exeat regno can be obtained in this case ; it cannot if there be a solvent partner resident in this country or if the debt be a legal debt. If the goods were placed in the hands of Messrs. H. and Co. to sell on account of C, I apprehend an ac- tion may be brought by C.'s assignees and Mr. D. held to bail. [ *109 ] *5. A CERTIOBAEI BILL.(l)' XXXV. Bill for a writ of Certiorari to remove proceedings from the Lord Mayor s Court in London, on the ground of one of the plain- tiff's witnesses residing out of the jurisdiction of that Court.{2)- In Chancery. To, &c. Thatamateri- Humbly complaining showeth unto your lordship your orator al witness is ^ -g_ ^j ^ ^]xa.\,, &c. [stating the proceedings in the Lord (1) It may seem improper to consider certiorari bills underthe head of bills praying relief, butas tliey always allege some incompelency of the inferior court, or injustice in its proceedings, and seek relief against that incompetency or injustice, they seem more properly to come into consideration under this head than any other. In case the court of Chancery removes the cause from the inferior court, the bill exhibited in that court is considered as an original bill in the court of Chancery, and is proceeded upon as such; Lord Eedesdale's Tr. PI. p. 50. (2) The writ of certiorari may be applied for on various grounds, as that the cause is out of the jurisdiction of the inferior court, or that the defendants or the witnesses live out of its jurisdiction, and are unable owing to infirmities, or the distance at which they live, to attend such inferior court, or cannot be compelled by the process of such court, to be examined there ; and the bill must allege some special ground for the application for the writ; 1 Madd. Ch. Pr. 182. When the party has filed his certiorari bill, on motion and a certificate from the Six Clerk that the bill is filed ; the writ will be granted. In the case of Pierce v. Thomas, Jac. R. 54, a writ of certiorari had been issued as of course, without any affi- davit or application to the conrt, and the Lord Chancellor quashed the writ. In note_^4), p. 182, of the 1st vol. Madd. Ch. Pr. 2d. edit, it is stated that a cer- tiorari bill cannot be filed by the plaintiff in the inferior court, and so also in Jacob's " A copy of the record must accompany every application for a certiorari. Triplett V. Tyler, 4 Hen. & Munf. 413. A CBRTIOKARI BILL. 109 Mayor s Qourt.^ And your orator further showeth unto your lord- resident out of ship that one E. F. a material witness for your orator concerning ^^^ jurisdic- the premises, did at the commencement of the said suit live and Lord°Mayor's *reside and still lives and resides at W. out of the jurisdiction of the Court, said lord mayor and his brethren the aldermen of the said city of r *110 1 L., whereby your orator has no remedy to compel the said E. F. to be examined or to give his testimony in the said cause in the said city of L. concerning the premises. In consideration whereof and forasmuch as for want of jurisdiction in the said lord mayor and his brethren the aldermen of the said city of L. over your orator's witnesses your orator is remediless there, May it please your lordship therefore to grant unto your orator a writ of ce^'tiorari to be directed to the said lord mayor of the said city of L. and his brethren the aldermen of the said city, thereby commanding them to certify and remove the record of the said bill or plaint(3) with Ch. Pr. 1 vol. 680, and Wy. Pr. Reg. 101 ; but in the case of Edwards v. Bowen. 2 Sim. & Stu. 515, Sir J. Leach, Vice Chancellor, decided otherwise ; in that case the plain- tiff commenced a replevin in a county court in Wales, and afterwards removed the proceedings into one of the courts of Great Sessions by the writ of recordari facias loquelam. He then applied to the court of Chancery for a certiorari to remove the proceedings into the court of K. B., and it was objected that a certiorari didnotliein such a case, or lay only upon suSicient ground being shown to the court which had not been done there; but the Vice-Chancellor, after observing that in replevin the action must commence in the Sheriff's court, and that in the text writers there is no qualification stated as to the right of the plaintiff to the writ oi certiorari in all cases, and that the subject is not to be deprived of a beneficial writ in the particular case because he is not prepared with a precedent precisely in point, granted the writ. There are several methods by which replevin may be made, but the most usual is by levying a plaint in the Sheriff's court of the county wherein the distress is taken. The Sheriff's court not being a court of record, if the plaint be removed, it must be done by an original writ of recordari facias loquelam, but if in a court of record com- petent to hold plea in replevin, the removal must be by certiorari issuing either out of the court of K. B. or the court of Chancery. The Sheriff's court of London is not, any more than other courts of the Sheriff', a court of record; therefore if a writ could be directed to this Court, it must be & recordari facias loquelam. But although all plaints in replevin made in London are in the Sheriff's court, they cannot be re- moved but through the medium of the court of Hustings which is a court of record. • Plaints therefore in London must be removed by writ of certiorari directed by the Mayor, aldermen, and sheriffs of London; see Ashley on Attachment, 139, 2d edit. Vi'oodcrafl v. Kinaston, 2 Atk. 317. (3) Where a certiorari issues in order only to use the record as evidence, then the tenor of the record, if returned, is sufficient as evidence of the record, to countervail a plea of nul tiel record; but when the record is to be proceeded upon the record itself must be returned. Woodcraft v. Kinaston, 2 Atk. 317 ; in this case the writ issued to remove a plaint of replevin in London, in order to be proceeded upon in a superior court and directed the tenor of the record to be removed and not the record itself and the Lord Chancellor superseded the writ. So also in Pierce v. Thomas, Jac. R. 54, cited ante, p. 109, the writ issued to remove the proceedings in an action of assumpsit, depending in the court of Great Sessions for the county of Glamorgan, and directed the tenor of the record instead of the record itself to be returned, the Lord Chancellor held the objection fatal, and quashed the writ. There is no difference when the proceedings upon the record are to be removed, whether it is before judgment or after; in both cases the record itself must be removed. Woodcraft-^. Kinaston, 2 Atk. 317. The student cannot fail to have observed that in all the cases previously cited, the applications for the writ of certiorari were to remove common law proceedings in the inferior. courts, but if it is intended to remove the proceedings on the ejuiiy side of an inferior court having limited jurisdiction, it appears more correct that the prayer for the writ of certiorari should be "to remove the bill and other proceedings" in the cause commenced in such inferior court, and not praying " to remove the record," as the inferior courts when proceeding by English bill cannot, it is conceived, be in 12 110 BILL TO COMPEL the process and all proceedings thereon into this honorable court ;(4) and to stand to observe and perform such order and decree therein as to your lordship shall seem meet and the circumstances of the case may require. And your orator shall ever pray, &c. [ *111 "1 *6. BILL TO COMPEL THE ACCEPTANCE OF A COMPOSITION. XXXVI. Bill hy insolvent partners and certain persons who had been appointed inspectors, and had also become sureties for them for the payment of certain instalments, against a creditor and the executors of the deceased trustee under a deed of trust alleged to have been executed by the other defendant the creditor for the benefit of his creditors, — to compel them to accept a dividend de- clared by the inspectors, and for an injunction to restrain pro- ceedings at law for the recovery of the original debt. — The credi- tor defendant having signed certain articles of agreement, made for carrying into effect the resolutions come to at a general meet- ing of the insolvent's creditors,{l) but had refused to sign the deed founded upon those articles, under a pretence of a variation in the ti'usts declared, and that before he had signed the articles of agreement, he had made over all his property for the benefit of his creditors."" Bill states that plaintiffs W. W. and J. W. for some time before and in the year carried on the business of merchants in part- strictuess considered as courts of record; to render this distinction more obvious, it may not be amiss to remind the student that the court of Chancery, as a court of equity, is not a court of record : Rol. Abr. 527 ; Yelv. 227 ; the jurisdiction of the court of Chancery being two-fold; the one, the ordinary jurisdiction, according to the com- mon law, (as in the issuing of all original writs and holding pleas in certain cases,) in which the court act as, and is acourt of record ; the other, the extraordinary juris- diction which is exercised under the general heads of Fraud, Trust, and Accident, in which the proceedings are by English bill; and although the pleadings and decrees in such proceedings when duly filed are frequently called records, yet they are not strictly records, but remain as o/«cor(i in the court. See further on this subject, Wy. Prac. Beg. p. 102, 360; Comyns's Dig. tit. Chancery, vol. ii. p. 389; Coventry & Hughes's Dig. p. 275, 6 ; and see also Lord Redesdale's Tr. p. 5, 133 ; Madd. Ch. Pr. 1st vol. p. 1, & 23 ; Will, on PI. p. 12. (4) As no appearance or answer is required, the writ of subpoena is not prayed; Lord Redesdale's Tr. p. 49 ; although in the form, as inserted in the former edition of this work ; p. 309, the writ of subpoena was prayed against the other parties in the cause, followed by interrogatories to the statement in the bill. The plaintiff must prove the suggestion of his bill in fourteen days after the return of the writ, but, under special circumstances, further time may be obtained on a mo- lion or petition supported by affidavit; 1 Madd. Ch. Pr. 183. (1) See note (2,) ante, p. 34. » Where a creditor enters into a composition with his debtor, with a full knowledge of all the facts, and fails to guard against loss, he must abide by the consequences ; neither fraud nor mistake can be imputed to such an agreement. Clarke v. ^\lnte, 12 Pet. 178. The rule cutting off underhand agreements, applies only where there is a general composition with creditors, common to all, and one of them has an un- became in?ol- veut. THE ACCEPTANCE OF A COMPOSITION. Ill nership together in the town of aforesaid ; and plaintiffs hav- Plaintiffs w. ing sustained divers losses and misfortunes in the course of such ^^ ^^'^ J- ^y- their business and being indebted to divers persons in a large amount, and being incapable of discharging the debts owing by them, it was resolved that a general meeting of the principal creditors residing in the said county of should be held for the purpose of taking into consideration the state of plaintiffs' affairs, and for forming a plan to be pursued for the adjustment and settlement thereof; and such meeting was accordingly held on or about and the greatest Meeting of part of the creditors of plaintiffs attended thereat, and particularly their ciedi- W. H. of aforesaid who was then a creditor of plaintiffs W. and ^°^^' \ J. W. for the sum of £ or thereabouts ; and plaintiffs also attended at that meeting, and having then laid before their creditors then present a general statement and account of their affairs, it was at such meeting unanimously resolved and agreed by and between Resolved that plaintiffs and such their creditors, that plaintiffs E. H. &c. should inspectors be appointed superintendents and inspectors and have a discretionary should be ap- power and control over the commerce, stock in trade, merchandize and effects of plaintiffs W. and J. W. until such time as their busi- ness and concerns in trade could be finally adjusted and settled, upon the terms and subject to the conditions, restrictions and agree- ments hereinafter mentioned ; And in regard plaintiffs W. and J. W. were indebted to T. S. of, &c. in the sum of £ for which they had accepted bills to that amount drawn by him on them, and that they had independently of such debt and without any consideration also accepted various bills of exchange drawn by him on plaintiifs in favor of different persons to the amount of £ which then *remained unpaid, it was also resolved and agreed that the said [ *112 J T. S. should exonerate and discharge plaintiffs W. and J. W. and That T. S. a their estate and effects from the said accepted bills and should pro- creditor cure produce and deliver up all the said accepted bills to the said should deliver inspectors or some of them in order to be cancelled or destroyed or i^jus of ex- otherwise made void, and that in consideration thereof and not change and be otherwise the said T. S. should have and be entitled to receive out entitled to of the effects of plaintiffs W. and J. W. a dividend after the rate ^^^^3. of in the pound in respect of his said debt so soon as the produce of the effects of plaintiffs W. and J. W. would extend to pay such dividend, and also a dividend after the rate of in the pound to their other creditors ; and it was also resolved and agreed derhand agreement to receive a larger per centage than the others ; such agreement is fraudulent and void. Clarke v. White, 12 Pet. 178. In cases of composition the debtor must pay punctually, for until performance, the creditor is not bound. Clarke V. While, 12 Pet. 178. Where a debtor, retaining possession of his effects, makes a compromise with his creditors, who rely wholly or principally upon his statements for a knowledge of his affairs, any material misrepresentation on his part will avoid the compromise ; and the creditors are not bound to look for information elsewhere. Irving V. Humphrey, Hopk. 284. See further, as to the general principles regulating composition with creditors, Kahn v. Gumberts, 9 Ind. 430; Cutler v. Reynolds, 8 B. Monr. 596. A release procured from a creditor by a fraudulent misrepresentation, does not bar his claim. Fhettiplace v. Saijles, 4 Mason, 312 ; and an additional security, or an agreement for such, not provided for in the deed of composition, and secretly given to one of the creditors, is illegal and void as against the others. Breck v. Cole, 4 Sandf. Sup. Ct. 79 ; Patterson v. Boehm, 4 Barr, 507. 112 BILL TO COMPEL Articles of agreement prepared, and executed by most of the creditors. A meeting of certain bill- holders called. Proposals made for pay- ing them a composition by instal- ments. [ *113 J Plaintiffs R. H. &c., agreed to become sureties to them. The amount due to such bill-holders. that the said T. S. should after such dividend made be entitled to receive in the proportion of in the pound upon his said debt of £ , and the other creditors in the pound upon their respective debts until the said sum of £ should be entirely paid oif, but that if the money arising from the said estate and effects should fall short of paying the whole demand of said T. S. and the said other creditors, then and in such case the moneys arising from the said estate and effects should be paid and divided according to the proportions aforesaid. That on or about, &c. articles of agreement in writing bearing date, &c. and made between, &c. were prepared to the following purport and effect: whereby after reciting the several resolutions and agreements hereinbefore set forth it was expressly agreed that, &c. &c. And plaintiffs and the several other persons whose names and seals were thereunto subscribed did thereby promise under- take and agree to and with each other to do any other lawful act what- ever for ratifying, confirming and establishing the aforesaid agree- ment terms and proposals. That plaintiffs and most of the creditors of the said plaintiffs W. and J. W. and particularly the said W. H. on or soon after the said day of signed such agreement. That plaintiffs W. and J. W. being at the time of signing said articles of agreement liable by their acceptance of such bills of exchange drawn on them by the said T. S. as aforesaid, and which bills to the amount of £ had been so accepted for valuable con- siderations, as plaintiffs were then indebted to the said S. to that amount but the rest of such bills were so accepted without considera- tion and only for the honor of said T. S. ; and all which said bills as well as those accepted for honor as those accepted for valuable con- siderations, the said S. H. had negotiated and endorsed for valuable considerations, and were then in the hands of divers persons residing in L. and B., a meeting was in the month of called and had in L. of the holders of such bills, or their agents in order to settle and compound the same demand on the estate of W. and J. W. That plaintiffs W. and J. W. by desire of the said inspectors attended such meeting and it was thereupon proposed and agreed that said bill-holders who in person or by their agents attended said meeting should be paid after the rate of in the pound on the sums made payable on their respective bills, and that such composi- tion *should be paid by instalments, (that is to say,) and in the pound on, &e. the further sum of and in the pound on , and the remaining and in the pound on , and that plaintiffs R. H., &c. should enter into a joint and several covenant together with plaintiffs W. and J. W. to them the said bill- holders for the due payment thereof in L. and that such composition of in the pound to be so paid should be in full discharge of the plaintiffs W. and J. W. from all demands on them or their estate under or by virtue of such bills of exchange. That all the moneys secured or made payable by the several bills _of exchange aforesaid which were at the time of the said last men- tioned meeting in the hands of persons who by themselves or their THE ACCEPTANCE OF A COMPOSITION. 113 agents attended such meeting amounted in the whole to the sum of £ and no more, the rest of such bills having been taken up or discharged by or by the procurement of the said T. S. ; And as the composition after the rate of in the pound on such sum of £ would amount to £ which would exceed the sum of £ which was the whole amount of the said bills for acceptance, whereof plaintiffs W. and J. W. gave valuable considerations as aforesaid by the sum of £ the said T. S. agreed that plaintiffs, VV. and J. W. or their assignees should be creditors on him the said T. S. for such overplus of £ , and which agreement appeared clearly to be for the mutual advantage of themselves and the rest of the creditors of plaintiffs W. and J. W. ; wherefore plaintiffs R. H. &c. consented thereto and to become security for the payment of the said composition after the rate of in the pound to the said bill-holders. That in consequence of such agreement by indenture of four parts, bearing date, &c. made, &c. [stating the indenture.'] That plaintiffs R. H. &c. by several undertakings in writing Plaintiffs E. dated, &c. did jointly and severally promise to pay to the said several H. &c., sign bill-holders or order in L. aforesaid in the pound on the said t^kj^'o-g™ th^e bills at the days and times aforesaid, and in order to indemnify plain- bill-liolders, tiffs R. H., &c. against all costs and charges on account of the said and .is a seen- indenture of covenants and undertakings or any of them, and for ? w a t' raising a tuna and enabhng them to discharge the said composition w. agree to of in the pound to the said several bill-holders pursuant to the assign all said deed and covenants, as also for the better collecting and getting ^^f^^l^ debts, in of the said debts and effects of plaintiffs W. and J. W. for the pur- ' pose of discharging all the debts owing by them, the said plaintiffs W. and J. W. agreed to make a general assignment of all their part- nership debts and effects ; and the plaintiff W. being seised in fee of a warehouse or building situate, &c. agreed to convey and assign the same freehold premises for the purpose of discharging his own debts and the debts of the said copartnership. And thereupon by in- indenture denture tripartite bearing date, &c. and made, &c. after reciting the executed to several matters aforesaid or generally to the effect hereinbefore set ' '^™" forth, it was witnessed, &c. That plaintiffs, R. H. &c. took upon themselves the management E. H. &c., as of the said estate and effects of plaintiffs ^Y. and J. W. and the exe- inspectors and *cution of the trusts declared by the aforesaid indentures, and sold |ijetn=^ol vents' and disposed of and converted into money all such particulars of such property, estate and effects as they have been able to possess collect and get r *114 "j in, and have out of the said moneys which have been raised thereby ^^^ thereout paid unto all the holders of the said bills of exchange ' in the pay the bill- pound in full of the money which they were respectively entitled to holders and receive from the said plaintiffs W. and J. W. by virtue of such bills; tors''[h'eirdivi- and plaintiffs R. H. &c. have also paid a like dividend of in the dends. pound to almost all the other creditors of the plaintiffs W. and J. W. ; And that there are other parts of the estate and effects of the said W. and J. W. which still remain to be got in, and when got ^funherdivi- in, a further dividend will be paid to each of such last-mentioned dend remain- creditors. And plaintiffs hoped that all the creditors of W. and ingtobepaid. 114 BILL TO COMPEL THE ACCEPTANCE OF A COMPOSITION. J. W. who executed the aforesaid articles and indenture, dated, &c. or either of such instruments, would have accepted such dividend of in the pound and such future dividend as the estate and effects of plaintiffs W. and J. W. shall extend to make, in full of the debts owing from said plaintiffs W. to them respectively, and that none of such creditors would in anywise have molested plaintiffs W. and J. W. or either of them in respect of any debt owing from them to any of such creditors. W. H. a credi- That the Said W. H. who on the said day of was a cre- tor assigns his ditor of the said plaintiffs W. and J. W. for the said sum of £ benefi\ of liis ^^^ signed the aforesaid articles of that date as hereinbefore is men- creditors, tioned, executed as it is alleged an assignment of all his estate and effects unto his father R. H. upon trust to dispose of the same in Death of the payment of the debts of him the said W. H. And the said R. H. trustee, his departed this life in the month of having first duly made his hio- g''h° C ' ^^^^ ^^^^ ^^ writing, and thereby appointed his brothers G. H. and H.^and D. P. C. H. both of, &c. merchants, and D. F. &c. merchant, executors executors. of his Said will, who duly proved the same, and by virtue thereof claim title to such debt. Tender to the That plaintiffs R. H. &c. at several times tendered and offered to executors of pay to them the sum of £ being a dividend of in the pound the dMde"nd°*^ °^ ^^'^ aforesaid debt due from plaintiffs W. and J. W. to the said upon the debt ^- H. and being the same dividend as was paid to the rest of the claimed by creditors of said W. and J. W. them. ^nd plaintiffs well hoped that the executors of the said R. H. de- Refusal by ceased would have accepted such dividend, and that neither they nor sa^me.°^'"^^^ Said W. H. would in any wise have molested plaintiffs W. and J. W. or either of them in relation to the debts so owing from them to said W. H. as aforesaid. But now so it is, &c. [see for?n IV. p. 5.] The said confederates Pretence that Pretend that the said W. H. did not execute such articles and in- w. H never denture dated, &c. as aforesaid or either of such instruments, nor cept\ di'vi-'^' ^^^ '° ^^ ^J ^^7 Other deed or instrument or in any other manner dend. agree to accept of any dividend or composition in lieu or satisfaction of the debt owing to them from plaintiffs W. and J. W., and there- fore they refuse to accept such dividend or composition and insist on being paid the whole of the debt originally owing from plaintiffs W. and J. W. to him the said W. H. [ *115 ] *Charge that W. H. did execute the aforesaid articles dated &c. Charge that ^^^ although he did not at any time execute the said indenture he signed the dated, &c. yet his not having executed the same was casual and agreement, accidental, and that he never refused to execute such indenture and having^igned would have executed the same at any time within a long time after the deed°was the date thereof if application had been made to him for such pur- accidental pose, and that the said indenture was in all things substantially wassubstanti- Conformable to said articles of agreement. And although the terms ally conform- in Said indenture may be said in form to differ from the said articles, able to the ar- inasmuch as by the said indenture provision was made for payment ment.fhT^^' °^ ^" ^^^ P°'^"'^ *° ^^^^ bill-holders before payment of any variation money to the other creditors of plaintiffs W. and J. W., whereas by being advan- the terms of the said articles the said bill-holders were not to receive BILL TO RESTRAIN THE INEfilNGEMBNT OF A COPYRIGHT. 115 such dividend of in the pound until such time as such other tageous to the creditors should have received a dividend of in the pound, yet general credi- that such variation was in substance rather advantageous than pre- that 'the de- judicial to the general creditors of plaintiffs W. and J. W. as their fendants are estate hath extended to pay so much as in the pound to their l><"^ii- pan V. Evans, 11 N. H. 311 ; Gordon v. Sewell, 21 Maine, 251; see also, Biffelow v. Congregational Society of Middletown, 11 Term. 283 ; Waterman v. Cochran, 12 Id. 699 ; BILLS BY CREDITORS. 124 selves and all other the creditors of J. K. late of, &c. deceased, who shall come in and contribute to the expense of this suit, That the Williams v. Hubbard, Walk. Ch. 28; Holden v. Shader, 20 Johns, ti. 554. The return of an execution unsatisfied, is generally sufficient to authorize the filing of a creditor's bill. Stoors V. Kelsey, 2 Paige, C. Rep. 418. Where the creditor seeks the aid of chancery against personalty, he must show that he has taken out execution, and. pursued it to its full extent; but as to realty, ajudgment is sufficient. Brinkerhoff y . Brown, 4 Johns. C. R. 671 ; Williams v. Brown, lb. 682. The bill must set forth the issuing and return of the execution ; Cassiday v. Meacham, 3 Paige, C. R. 311 ; Mer- chants and Mechanics Bank v. Griffith, 10 Id. 519 ; Reed v. Wheaton, 1 Id. 663 ; Smith V. Fitch, I Clark, 265 ; Hope v. Brinkerhoff, 3 Edw. Ch. 445 ; and it will not lie if it appears from the bill itself that the remedy at law is not exhausted. Starr v. Rath- bone, 1 Barb. 70. As to the necessity of a prior judgment and execution, see -DtfJerry V. Clifton, Cooke, 328 ; Morgan v. Crabb, 3 Porter, 470 ; Wright v. Petrie, 1 S. & M. Ch. 282 ; Scott V. Wallace, 4 J. J. Marsh. 654 ; Hana v. Banks, 6 Id. 219 ; Woohy v. Stone, 7 Id. 302; Beck v. Burdett, 1 Paige, C. R. 305; McBlfoain v. Willis, 9 Wend. 548 ; Screven t. Boslick, 2 McCord, Ch. 410 ; Clark v. Banner, 1 Dev. & Bat. Ch. 608 ; McDermot v. Blois, Charl. R. M. 281 ; Parish v. Lewis, 1 Freem. Ch. 299; West v. McCarty, 4 Blackf. 244 ; Kelso v. Blackburn, 3 Leigh, 299 ; Rice v. Barnard, 20 Vt. 479 ; Jshmael v. Parker, 13 111. 3^4; North American Fire Insurance Company v. Gra- ham, 5 Sandf. 197; Barrow v. Bailey, 5 Florida, 9. But it has been held, that a judgment against the executor at law, is no evidence on such a biU against the heirs and devisees. Darrington v. Borland, 3 Porter, 9 ; see also, Oarneil v. Macon, 6 Cal. 30S. The assignee of a judgment mustissue an execution after the assignment, before he can file a creditor's bill. Fitch v. Baldwin, 1 Clark, 106; Wakeman v. Russell, 1 Edw. Ch. 509 ; see however, Gleason v. Gage, 7 Paige, C. R. 121 ; Strange v. Longley, 3 Barb. Ch. R. 650. But it is said this rule does not apply to a case where the debtor is absent from the county, so that no judgment can be had against him. Scott V. McMillin, 1 Litt. 302. And if the bill is filed an unreasonable length of time after the execution has been returned, a new execution must be issued. Storms v. Ruggles, I Clark, 148. The bill will not be sustained while the creditor has the body of the debtor in execution. Tappan v. Evans, H N. H. R. 311; Stilwell v. Van Epps, 1 Paige, C. R. 615. Judgment creditors, who have exhausted their remedies at law, may unite in a bill to set aside a fraudulent assignment by their debtor. Lentilhon V. Moffat, 1 Edw. Ch. 451 ; Bailey v. Burton, 8 \Vend. 339 ; DuganY. Vatlier, 3 Blackf. 245. But as to property, on which no creditor has obtained a lien byjudgmeut and execution, a, creditor who has exhausted his legal remedy may file a bill for his own benefit only, without making other creditors, standing in the same situation, parties. Wakeman v. Grover, 4 Paige, C. R. 23. Other creditors may come in after the bill has been filed ; The Bank v. Dugan, 2 Bland. 254 ; and the court should call in all the creditors of the estate, to receive dividends. Kinney v. Harvey, 2 Leigh, 70 ; Williamson v. Wilson, 1 Bland. 418 ; see Brooks v. Gibbons, 4 Paige, C. R. 374 ; Parm- lee V. Egan, 7 Paige, C. R. 610 ; Birley v. Staley, 5 Gill & J. 432 ; Shubrick v. Shubrick, 1 McCord, Ch. 406. The natureof the equitable assets which may be reached by a creditor's bill, is discussed and determined in Craig v. Hone, 2 Edw. Ch. 554; Weed V. Pierce, 9 Cow. 722 ; Congden v. Lee, 3 Edw. Ch. 304 ; Thompson v. Nixon, lb. 457 ; Brewster v. Power, 10 Paige, C. R. 562 ; Benson v. Le Roy, 4 Johns. C. R. 651 ; Cohen T. Carroll, 5 S. & M. 545 ; Wagoner v. Speck, 3 Ham. 294 ; Plait v. Judson, 3 Blackf. 235; Demaree v. Driskell, lb. 115. A creditor's bill need not allege a fraud on the part of the defendant, or the con- cealment by him of property or effects, with the intention to delay or hinder the com- plainant or other creditors. Brown v. Bales, 10 Ala. 432. Where the bill stated that the judgment on which it was founded was " still due and owing, aboveallprior just claim by the defendant," it was held, that the insertion of the word "prior" was bad. Van CleefY. Sickles, 2 Edw. Ch. 392. Where the bill prays that the debtor's property may be sold for the benefit of creditors, no other allegation that the complainants proceed on behalf of themselves and other creditors, is necessary. Birely v. Staley, 5 Gill & J. 432 ; see also, Gibson v. McCormick, 1 Id. 65. A supplemental bill is proper to reach property acquired subsequently to the original bill, and applicable to the payment of the same debt. Eager v. Price, 2 Paige, C. R. 333. A statement that the assignment of a judgment was by deed, im- ports sufficient consideration to sustain the assignment. Gleason v. Gage, 1 Paige, C. R. 121. By tihe institution of a judgment-creditor's suit, the plaintiff' obtains a lien on all the choses m action of the defendant. Roberts v. Albany and West Stock- bridge Railroad Company, 25 Barb. 662. 13 124 BILLS BY CREDITORS. said J. K. deceased was in his life-time and at the time of his decease [a trader within the meaning of the bankrupt laws and was] in- statement of debted to jour orator H. P. in the sum of £ for and on account the debts due of his bill of costs for various matters and business transacted for to^ fte plain- j^j^ ^j^^ ^^^^ j_ j^_ deceased, by your orator H. P. as his attorney or ' solicitor, and which said sum of £ still remains due and owing to your orator H. P. And that the said J. K. also in his life-time, and at the time of his decease, stood indebted to your orator E. S. in the sum of £ for various goods and merchandize supplied by your orator E. S. to the said J. K. deceased, and which said last- mentioned debt or sum of £ also still remains due and owing to and of debts your Orator E. S. And your orators further show unto your lord- due to other g}^[^ that the said J. K. was also at the time of his decease (as it is persons. alleged) indebted to certain other persons by specialty and on simple contract. And that the said J. K. being so indebted and being [ *125 ] *possessed of or well entitled unto considerable [real and] personal Death of estate, departed this life on or about the day of ,(3) haying debtor. first duly made and published his last will and testament in writing. His will. bearing date the 28th day of April , and thereby gave and bequeathed all his estate and effects in the words and manner following (that is to say): "I give and bequeath unto my dear wife all my estate, property and effects whatsoever and wheresoever absolutely. And I appoint my said wife and my brother-in-law R. T. esq. executrix and executor of this my will, and I revoke all other wills by me heretofore made." And your orators further show unto your lordship that the said testator departed this life without having revoked or altered his said will, and that immediately That his wi- after his decease his wife R. E. K. (the executrix of the said testator dow and exe- and one of the defendants hereinafter named) possessed herself of a cutrix, before considerable part of his personal estate and effects, and converted the sessed herself Same to her own use and entered into possession of his real estates of part of his and receipt of the rents and profits thereof. And that afterwards, (3) In the case of a debtor deceased intestate possessed of real estate, omit the parts relating to the will as far as the asterisk *, and proceed thus : , [intestate, leaving A. B. of , a defendant hereinafter named, his heir at law and 0. D. his widow, also a defendant hereinafter named, him surviving, and that shortly after his decease the said C. D. obtained letters of administration of his goods, chattels, rights and credits to be granted to her by the proper Ecclesiastical Court, and thereby became and now is his legal personal representative. And your orators further show that the said 0. D. as such administratrix possessed herself of all the personal estate and effects of the said intestate to a very large amount, and much more than sufBcient to pay and satisfy all his just debts and funeral expenses.] In equity the personal estate of a decedent is the natural fund for the payment of debts and legacies, and, generally speaking, is first to be exhausted, before resort can be had to the real property. Wyse v. Smith, 4 Gill & J. 296. The order in which an estate is to be applied to the payment of debts is, 1. The personal estate, unless ex- pressly or by plain implication exempted. 2. Estates devised expressly for the pay- ment of debts. 3. Estates descended. 4. Estates specifically devised, though charged generally with the payment of debts. Livingston v. Newkirk, 3 Johns. C. R. 312. A sale of the real estate will not be decreed until the amount of the debts and the de- ficiency of the personal estate is ascertained ; Thompson v. Brown, 4 Johns. C. R. 619 ; for the real estate is only to be resorted to as an auxiliary fund after the per- sonalty has been exhausted. Stevens v. Gregg, 10 Gill & J. 143. If the creditors may collect their demand from the administrators, equity will not entertain jurisdic- tion. Pease v. Scranton, 11 Geo. 33. BILLS BY CREDITOES. 125 namely, on or about the 3d day of April last past, the said R. T. personal es- the executor named in the said testator's will and also a defendant '**"^i ^°<^ '^»n- hereinafter named, duly proved the said will in the Prerogative Court J^J^^ ^^ \^^^ of the Archbishop of Canterbury, and took upon himself the burthen own use, and of the execution thereof, and possessed himself of the residue of the received the estate and effects of the said testator to a very considerable amount reafcs'tat''^ and value, and together with the effects of the said testator possessed Prohatebythe by his said widow the said E. K. as aforesaid, much more than executor who sufficient to discharge and satisfy all his just debts, funeral and possessed testamentary expenses, * but that the said defendants E. K. and ^""^^^'J °^ ^Jj" R. T. have not yet paid or satisfied the respective debts due to your personal es- orators or either of them or any part thereof respectively, and the tatc. same, together as it is alleged with some other of the debts owing by PlaiotifFs the said J. K. at the time of his decease, still remain unsatisfied, "isbts still due. And the said defendants E. K. and R. T. having as aforesaid possessed assets of the said J. K. much more than sufficient to satisfy all his said debts, your orators have' applied to and requested the Application to said defendants to satisfy the same accordingly. And your orators the defend- well hoped that the said defendants would have complied with such '^°''^- requests, as in justice and equity they ought to have done. But NOW so IT IS may it please your lordship that the said defendants E. K. and R. T. combining and confederating with [the said A. B. the heir at law and ivith^ divers other persons, &c. {see form IV. p. 5,) the said defendants E. K. and R. T. ^refuse to pay the said [ *126 J debts, or any of them, and allege that the personal estate and effects Defendants of which the said J. K. deceased was possessed of or entitled to at refuse to pay the time of his decease and which have come to the hands of them ^^i^^^'^t^V'' ^ 1 -1 r. 1 I 1 1 !• debts, and al- respectively, or either ot them, or to the hands oi any person or lege that his persons by their or either of their order, or for their or either of estate is insol- their use will not be sufficient to answer and satisfy his debts by T^"*' ^"^ ''i'.'J' specialty, but the said defendants further allege that they are ready ing to account and willing to account for the personal estate and effects of the said and admini^s- J. K. [_and his real estate and the rents and profits thereof^ possessed *®'' '^'s estate or received by them, or either of them, or for their or either of their ^^ee of the use, and to pay and apply such personal estate and effects [and real court. estate^ or the produce thereof so far as the same will extend, to and amongst his creditors according to their respective priorities, but that by reason of the great number of outstanding debts owing by the said J. K. and the insolvency of his estate, they cannot safely do so without the direction and decree of this honorable court. [But the said A. B. gives out and pretends that the said J. K. was [Pretence hy not a trader at the time of his decease within the meaning of the *'" '^«*'' "* ''<'"' bankrupt laws, and that he as the heir at laiv of the said J. K. is ^^walnotT' entitled to the whole of his real estate. Whereas your orators charge trader, and that the said J. K. was at the tim,e of his death a trader within the that he as neir meaning of the bankrupt laws, and that the whole of his real estates ^^f^ie^fak''^''''' is applicable in payment of his debts in case his personal estate and effects are insufficient for that purpose.'] To the end therefore that, &c. {see form VI. p. 6, interrogating to the stating and charging parts.) And that an account may be taken by and under the Prayer. direction and decree of this honorable court of the [real and] 126 BILLS BY CREDITORS, personal estate of the said J. K. deceased, and of the said debts due to your orators respectively, and of the debts due to the other creditors of the said J. K. remaining unsatisfied at the time of his decease, [and of the rents and profits of his real estate which have been possessed_ by or come to the hands of the said defendants, or either of them, or of any person or persons by their or either of their order, or for their or either of their wse.] And thai the [real and'\ personal estate of the said J. K. or so much thereof as remains unapplied and undisposed of may be applied in the first place in or towards satisfaction of his funeral expenses in case the same have not been satisfied, and then of such of his debts due to his creditors by specialty who shall come in and contribute to the expense of this suit, and after payment and satisfaction of such specialty debts, then in satisfaction of the said debts due to your orators, and the other simple-contract creditors who shall come in in like manner and contribute to the expense of this suit, equally share and share alike in a due course of administration. And (if necessary) that a receiver may be appointed by this honorable court to collect in and receive the outstanding personal estate and effects belonging to the said J. K. [and the rents and profits of his real estate.'] And that the said defendants may be restrained by the injunction of this honorable court from [receiving the rents and profits of his real estate and frorn] collecting in and receiving any such outstanding personal estate, and from assigning, selling, or parting with any part of the personal estate and effects of or belong- ing to the said J. K. now in the custody or power of the said r *127 ] *defendants or either of them, or in the custody, possession or power of any person or persons in trust for or for the use of them or either of them. And that your orators may have such further and other relief in the premises as to your lordship shall seem meet and this case may require. May it please, &c. (see form No. 1, and 4, p. 6.) Pray subpoena and injunction against E. K. and B. T. XLI. Bill by simple contMct creditors against the executors of the deceased debtor, for payment of his debts. Humbly complaining show unto your lordship your orator W. B. of, &c. and C. I), of, &c. creditors by simple contract of J. P. late of, &c. deceased, on behalf of themselves and all other the creditors of the said J. F. who shall come in and seek relief by and contribute Statement of to the expense of this suit, that the said J. P. at the time of his the debts due death was justly and truly indebted unto your orator W. B. in the t^the plain- g^jjj gf £ ^^^ upwards for goods sold and delivered, and moneys paid laid out and expended to and for his use, and that the said J. F. was also justly and truly indebted to your orator C. D. in the sum of £ and upwards for, &c. And your orators further show unto your lordship that the said J. F. in his life-time, and at the BILLS BY CREDITORS. 127 time of his death was possessed of or well entitled unto a consider- able personal estate, and being so possessed departed this life on or Death of the about having first duly made his last will, bearing date &c. and testator. thereby appointed J. M. and C. S. (the defendants hereinafter named) ^'s will, the executors thereof, as in and by the said will or the probate thereof, to which your orators crave leave to refer when produced to this honorable court will appear. And your orators further show unto your lordship that the said J. M. and J. S. duly proved the Probatebytbe said will in the proper Ecclesiastical Court and undertook the exe- executors. cutorship thereof, and possessed themselves of the personal estate and effects of the said testator to a very considerable amount, and more than sufficient to satisfy his just debts and funeral expenses. And your orators further show unto your lordship that the said J. M. and C. S. having possessed themselves of the said testator's per- sonal estate and effects as aforesaid, your orators have made and caused to be made several applications to them the said J. M. and Applications C. S. and requested them to pay and satisfy unto your orators their *° ^'^ defetid- respective demands, with which just and reasonable requests your orators well hoped that the said J. M. and 0. S. would have com- plied as in justice and equity they ought to have done. But now so IT IS, &c. [see form IV. p. 5.] And the said defendants pretend Pretence that that the said testator's personal estate was small *and inconsiderable 'te personal and hath already been exhausted in the payment of his funeral ex- ^^^usted '^^' penses and just debts. Whereas your orators charge that the said r *i9e i testator's personal estates and effects were more than sufficient to _ J- "" -' discharge all hi» just debts and funeral expenses, and so it would it was more appear if the said defendants would set forth a full true and par- than sufficient ticular account of all and every the personal estate and effects of the to discharge said testator come to their or either of their hands or use, and also ^g_ ' a full, true and particular account of the manner in which they have disposed of or applied the same, but which they refuse to do. All which actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts.^ And that an account may be taken of the moneys Prayer. due to your orators in respect of their said several demands, and of other the debts owing by the said J. F. at the time of his death; and that if the said defendants shall not admit assets of the said testator, then that an account may also be taken of the personal estate and effects of the said testator possessed or received by or by the order or for the use of the said defendants, or either of them, and that such personal estate may be applied in a due course of ad- ministration. And that your orators and the said other unsatisfied creditors by simple contract of the said testator may have such further or other relief in the premises as to your lordship shall seem meet, and the circumstances of this case may require. May it please, &c. \_seeform No. 1, p. 6.] Pray subpoena against J. M. J. L. and C. S. 128 BILLS BY CREDITORS. XLII. Bill hy simple contract creditors against the deceased admin- istratrix and heir at law ; — The administratrix alleging that the personal estate is insufficient, and has been applied in payment of specialty debts ;{4:) — Prayer to have an account taken of the moneys due to the plaintiffs, of the intestate's personal estate possessed by the administratrix, and of the rents of the real estate received by the heir at law, and for payment of the plaintiff ' s demands out of the personal estate, if sufficient, but if insufficient, then praying that the specialty debts may be raised and paid out of the real estate, and that the simple contract creditors may have satisfaction out of the real estate so far as the personal estate may have been applied in payment of specialty debts. To, &c. Humbly complaining show unto your lordship your orators A. B. of, &c. and 0. D. of, &c. on behalf of themselves and all other the [ *129 J *simple contract creditors of E. P. late of, &c. deceased who shall Statement of come in and contribute to the expense of this suit, That the said the debts due E. F. was in his life-time and at the time of his death justly and to the plain- ij.^j indebted unto your orator A. B. in the principal sum of ^ with an arrear of interest thereon upon and by virtue of his the said E. E.'s promissory note of hand in writing bearing date, &c. for securing the payment of the said sum of £ to your orator A. B. with interest for the same at and after the rate of £ per annum. As by the said promissory note, &c. And your orators further show that the said E. F. in his life-time and at the time of his death was also justly and truly indebted unto your orator 0. D. in the sum of £ and upwards for goods sold and delivered and moneys paid Debtor enti- laid out and expended to and for his the said E. F.'s use. And your tied to consi- orators further show that the said E. F. was in his life-time and at tates reaTand *'^® *™^ ''^ ^'^ death possessed of, interested in, and entitled unto a personal. very considerable personal estate, consisting of divers estates and premises held upon lease for terms or a term of years, and other chattels real and personal, and of various other particulars to a large amount and value in the whole, and more than suiBcient to have paid and satisfied all his just debts and funeral expenses. And the said E. F. was also in his life-time and at the time of his death seised or well entitled unto some considerable real estates lands tenements and hereditaments situate, &c. and particularly of or to divers free- hold houses or tenements in L. aforesaid, and also to a close or parcel of land in F. in the county of L. of some considerable yearly (4) If a specialty creditor whose debt is a lien on the real assets receive satisfaction out of the personal assets, a simple contract creditor shall stand in the place of such specialty creditor against the real assets, so far as the latter shall have exhausted the personal assets in payment of his debt. With respect to the application of real assets when the personal estate is either exempt or exhausted, it seems that the real estate expressly devised for the payment of debts shall be first applied; 2dlyi to the extent of the specialty debts, the real estate descended; 3dly, the real estate speci- fically devised, subject to a general charge of debts ; Toll. Ex. 6th edit. 419 ; and see Kidney v. Coussmaker, 12 Yes. 154, 2d edit. BILLS BT CREDITORS. 129 value respectively. And your orators further show unto your lord- Death of debt- ship that the said E. F. being so seised and possessed departed this 5"' intestate, life at or about, &c. intestate and without issue, leaving E. F. of, &c. his heir at his eldest brother and heir at law, and S. F. of, &c. his widow and law. relict (the defendants after named,) and that the said S. P. upon the death of the said intestate applied for and obtained letters of Administra- administration of his personal estate and effects to be duly granted tion gi-arited to her by and out of the proper Ecclesiastical Court in that behalf, '° ^'^ ^''^°"'- and the said S. F. thereby became and now is the legal personal ^^^ has^ot'' representative of the said E. F. And your orators further show inthepersonai that under and by virtue of such letters of administration she the estate, said S. F. or some person or persons by her order or for her use hath or have possessed, got in, and received the whole or the greatest part of the said intestate's personal estate and effects consisting of the various particulars aforesaid and to a considerable amount in the whole, and sufiBcient or more than suiBcient to satisfy and pay all his the said intestate's funeral expenses and just debts. And the That the heir said E. F. the said intestate's heir at law, upon or soon after the at law entered decease of the said intestate entered upon and possessed himself of ^^"J^^l ^ ^"^ all his real estates and premises, and hath ever since been in such possession, and he or some person or persons by his order or for his *use hath or have ever since been in the receipt of the rents and pro- [ *130 ] fits thereof, and the said E. F. now is in such possession and re- ceipt. And your orators further show that since the death of the That the wi- said intestate the said E. F. hath paid unto your orator A. B. the ^°J^ has^paid sum oi £ in part discharge of his said debt or sum of £ , debt due to A. but that the remainder thereof together with an arrear of interest on B., and the the whole of the said debt now remains justly due and owing unto whole debt re- your orator A. B. and the whole of the said sum of £ and up- ^g'^ther^ ° wards does also still remain justly due and owing unto your orator plaintiff. C. D. from the said intestate's estate. And your orators further show that the said S. F. having possessed the said intestate's personal estate and effects as aforesaid, your orators have applied to and re- quested her to pay and satisfy unto your oratrix their said respective demands by and out of the said intestate's personal estate and effects, if the same were sufficient for that purpose. And your orators have Applications. also applied unto the said E. F. and requested him that if the said testator's personal estate and effects were not sufficient by reason of any application thereof or of any part thereof to the payment of any specialty creditors of the said intestate, that he would consent that the deficiency thereof might be raised by sale of a competent part of the said intestate's real estate, or that the said intestate's real and personal assets might be marshalled and his personal estate and effects applied in payment of his simple contract debts and his specialty debts paid out of his real estate. And plaintiffs well hoped, &c. But now so it is, &c. [see form IV. p. 5.] And the said defend- ants pretend that the said E. F. deceased was not at the time of Pretence that his death indebted to your orators or either of them in any sum or ^^^ intestate sums of money whatsoever, and that he never made or signed any ^gbted to°' such promissory note of hand to your orator A. B. as aforesaid, plaintiffs. Whereas your orators charge the contrary, and that the said in- 130 BILLS BY CREDITORS. testate did duly make and sign such promissory note of hand in writing to your orator A. B. for securing his said debt theretofore justly due and owing thereon with interest at and after the rate as before mentioned. And your orators further charge that the whole of their said several debts and demands were, together with a large arrear of interest on your orator A. B.'s said debt, justly due and owing to your orators as aforesaid at the time of his the said E. F.'s decease, and which the said defendants will at other times admit, but then Pretence that the Said S. F. pretends that the personal estate was insufiicient, and the personal ^^j^g^^. gjjg applied the Same in or towards payment of the specialty beenVhony creditors of the intestate, but what specialty debts in particular she applied in pretends to have paid thereout she refuses to discover. Whereas payment of your orators charge the contrary of such pretences to be the truth ; dUm'^ *^ '^^'^' ^^^ jonr orators are advised and humbly insist that if the personal Charge that if estate and effects of said intestate have been exhausted by the said so, the' assets S. F. in paying or discharging of any of his specialty debts, then ought to be that your orators and the other simple contract creditors of the said marshalled ; Jn^ggtate Ought and are entitled in a court of equity to have the said intestate's assets marshalled and to stand in the place of such spe- cialty creditors as to the said intestate's real estates, and to have satisfaction for their respective demands thereout to such amount and [ *131 ] *for so much as such specialty creditors shall have received out of the and the real said testator's personal estate, and that such real estate or a compe- estate sold or tent part thereof ought to be mortgaged or sold for that purpose, and mortgaged, that the said intestate's personal assets ought to be applied solely in discharge of the debts of your orators and other the simple contract creditors of the said intestate. But nevertheless the said defendants under such or the like pretences as aforesaid, refuse to pay your ora- tors or either of them their said demands ; and the said defendants refuse to come to an account for the real or personal assets of the said Charge as to intestate. And your orators further charge that the said defendant 'fi^'^rt'"^" E. F. hath possessed the title-deeds and writings belonging or relat- ing to the real estate of the said intestate, and which he refuses to produce or discover. All which actings, &c. \_see form VI. p. 5, interrogating to the stating and charging parts.^ Prayer. And that an account may be decreed to be taken of the moneys due to your orators in respect of their said several demands, and that an account may be also taken of the said intestate's personal estate and effects possessed or received by, or come to the hands of the said defendant S. F. or of any other person or persons by her order or for her use, and also an account of the rents and profits of the said intestate's real estate possessed or received by or by the order or for the use of the said defendant E. F., and that your orators may be paid their said respective demands out of the said intestate's personal estate, if the same shall be suiEcient for that purpose, and to pay all other the said debts of the said intestate as well by specialty as by simple contract. But if the same shall be insufficient for that pur- pose, then that the said intestate's specialty debts may be raised and paid out of his real assets, and the simple contract debts of the said intestate paid out of his personal assets, and that proper directions may be given in that behalf. And if any of the said intestate's per- BILLS BY CREDITORS. 131 sonal estate shall be or appear to have been applied in payment of the specialty debts of the said E. P. the intestate, then that your orators and all other his simple contract creditors may be declared to be entitled to a satisfaction out of his real estates, and to such amount as the specialty creditors shall have received out of his the said intestate's personal estate and effects ; and that a sufficient part of the said real estates may be mortgaged or sold for raising the same, and that all proper parties may be decreed to join in such mortgage or sale, and that by and out of the moneys to arise therefrom your orators and all other the simple contract creditors of the said intestate may be respectively paid and satisfied their said several demands and their costs of this suit; And that all the title- deeds and writings relating to the said real estate may be produced, and all proper and necessary directions given for effectuating the several purposes aforesaid, and for the payment of your orators' said demands. [And for further relief, see form VIll. p. 5.] May it please, &c. [see form No. 1, p. 6.] B. K. *XLIII. Bill hy the executors of an obligee in a bond and a simple [ *132 ] contract creditor, on behalf of themselves and other creditors against the administratrix of debtor and his heir at law; — charging that the administratrix is in possession of the leasehold property, that she has not exhibited a correct inventory into the Ecclesiastical Court, and sets up a settlement as to part of the real estate, and claims her dower out of other part. Prayer for an account of what is due to the plaintiffs, — an account of intes- tate's personal estate, debts, ^o. and the rents of his real estate, and for a sale of the real estate in aid of the personal estate.{5) Humbly complaining show unto your lordship your orators T. 0. of, &c. and P. M. of, &c. executors of the last will and testament of R. B. late of deceased, and as such bond and simple contract creditors of I. T. late of, &c. deceased, and also your oratrix M. N. of, &c. another creditor of the said I. T. by simple contract, on behalf of themselves and all other the creditors of the said I. T. who shall come in and seek relief by and contribute to the expense of this suit. That the said I. T. having borrowed of or being indebted unto the Debts due to said R. B. in the sum of £ , he for securing the payment thereof ^^^ °^.^^^ with lawful interest for the same, duly executed a bond or obligation executors of in writing bearing date, &c. whereby he bound himself his heirs exe- R. B. cutors and administrators unto the said R. B. his executors adminis- trators or assigns, for payment of the said sum of £ with interest for the same at the rate of £ per cent, per annum, at a time therein mentioned and long since past. As in and by, &c. That the said principal sum of £ and all the interest thereof (5) See the preceding form, p. 128, and the note to the same. 132 BILLS BY CREDITOES. now remains justly due and owing by virtue of the said from - bond. That the said I. T. on or about, &c. having occasion to borrowa certain sum of money, on that day wrote and sent a letter to the said R. B. by E. C. then the said I. T.'s clerk (the said I. T. being an attorney) in the words and figures following, (that is to say,) &c. And in consequence of such letter the said R. B. did on advance unto the said E,. 0. for the use of the said I. T. the further sum of £ , for which the said R. C. signed and gave a receipt to the said R. B. in the words and figures following (that is to say,) &c. As in and by the said letter and receipt, &c. That the said sum of £ and all interest thereon now remain Debt due to the other plaintiff. [ *133 j Death of debt- or, intestate, leaving an only child his heir at law. Administra- tion granted to his widow. Intestate enti- tled to large justly due and owing by virtue of the said letter and receipt. That the said I. T. having on or about , occasion to borrow a certain sum of money, he on that day wrote and sent by the said R. C. his clerk, to plaintiff M. N. in the words and figures following, (that is to say,) &c. in consequence of which she did on — ^-advance unto the said R. C. for the use of the said I. T. the sum of £ , for which the said R. C. then gave her the following receipt (that is to say,) &c. As in and by the said letter and receipt, &c. *That the said I. T. departed this life on or about intestate, . being indebted to the said R. B. and plaintiff M. N. in such sums as aforesaid, and to some other persons, and he left M. T. his widow and M. T. the younger his only child and heir at law, and soon after his death letters of administration of his personal estate and effects were granted to the said M. T. the widow, by the proper Ecclesias- tical Court. That the said I. T. was at the time of his death possessed of or entitled to a considerable personal estate, and seised or entitled in real anTper- fce-simple of Or to divers freehold messuages lands tenements and sonai estate, hereditaments situate, &c. of large yearly value in the whole ; and she the said M, T._ the widow possessed all the said personal estate and effects or so much thereof as she was able, and she and the said M. T. the younger or one of them entered on the said real estate, and ever since have or hath been and now are or is in possession and receipt of the rents and profit thereof. That the said R. B. departed this life on or about , having before his death duly made and published his last will and testament in writing bearing date, &c. and thereby gave all the residue of his personal estate unto 'plaintiffs T. C. and P. M. equally to be divided between them and appointed them executors thereof; and that shortly after his death they proved the same in the Consistory Court of the bishop of N. and thereby became and now are entitled to the sums of money due to the said R. B. as aforesaid. And plaintiffs Applications have at several times applied to the said M. T. the widow and M. T. to defendants, the younger, and requested them to pay the said several sums of mo- ney due to plaintiffs respectively as aforesaid. And plaintiffs well hoped, &c. But now SO it is, &c. \_Seeform IV. p. 5.] And the said defendants Pretence that Pretend that the said I. T. did not execute such bond as aforesaid, intestate never and that neither he nor the said C. R. signed such writings as afore- Death of plaintiff's tes- tator; his will. Probate there' of by his exe^ cutors. BILLS BY CREDITORS. 133 said or either of them, and that no such sums as aforesaid were really executed the advanced or lent to or received by him the said I. T. or that he in ^°'^^' ^'^^ his life-time fully paid a,nd satisfied all such sums and all the interest eys were really thereof, and that therefore no money was remaining due from him in advanced to respect thereof at the time of his death. ^^'^• Charge the contrary/, and so the said defendants will at other times admit, but then the said M. T. the widow pretends that the Pretence that personal estate and effects which the said I. T. was possessed of, en- gg^.^te'^^TOs^^of titled to, or interested in at the time of his death, were but of incon- small value. sideraljle value in the whole, and that only some small part thereof was possessed by her the said M. T. the widow or by her order or for her use, and not nearly suiScient to satisfy plaintiffs' said de- mands. Charge the contrary, and particularly that he was at the time of Charge that his death possessed of divers messuages, &c. held for some long term ^^^ widow is of years at small rents, and that the said M. T. the widow is now in tj^g ^ents of the possession and receipt of the rents and profits of all such mes- the leasehold, suages, &c. unless she has sold the same, in which case a large sum of money has been received by her or by her order or for her use, *as a consideration for the sale thereof, and he was also entitled to [ *134 ] considerable sums of money due on bonds mortgages and other secu- rities; but in order to conceal the real value of such personal estate, the said M. T. the widow hath not exhibited into the proper Eccle- That she has siastical Court, or caused to be made any appraisement or inventory '^°^ exhibited thereof, or if any such was exhibited or made, the same was defec- ventory into tive, and many particulars of the personal estate which he was really the Bcclesias- possessed of at the time of his death were wholly omitted therein, and ti^al Court, most of the particulars which are contained in such appraisement or inventory are therein appraised at sums much less than the same respectively were really worth, or than they were or might have been afterwards sold for. And plaintiffs are advised that the personal That the per- estate of the said I. T. ought to be first applied to pay the whole of sonal estate the debts owing by him at the time of his death on specialty in ^f^ applied preference to all his debts on simple contract, and that if such per- and in case of sonal estate be not sufiicient to pay the whole of his debts, then a deficiency, plaintiffs and his other specialty creditors are by law entitled to be oughuo^oome paid the remainder thereof out of his freehold estate, and tha.t plaintiff in aid and be M. N. and his other creditors on simple contract are entitled in equity sold, and the to a satisfaction of their respective debts out of his freehold estate, 3^°^^^'^°°'^'^ " so far as his personal estate may be exhausted by his specialty credi- tors to the prejudice of his creditors on simple contract, and such real estate ought to be sold and the rents and profits thereof received since his death ought to be accounted for. But then the said M. T. pretence that the widow and M. T. the younger, most of the in- Pretend that most of the messuages, &c. whereof the said I. T. testate'smes- was in possession at the time of his death are copyhold, and that ^g^l copy-' such parts thereof as are freehold were settled for the benefit of them hold, and of a or one of them, and that therefore no part thereof is subject to the ^,^*'^i'"^/'*,^^ payment of his debts either in law or in equity. parts. Charge the contrary, arid that the said defendants refuse to dis- charge the cover the particulars and nature of such messuages, &c. or the par- contrary. 134 BILLS BY CREDITORS. Claim of his widow to dower out of the freehold estates. Pretence of other incum- brances. Prayer. [ *135 ] ticulars of any settlement or settlements. And at other times the said M. T. claims to be entitled to dower out of all or some part of such freehold estates, but plaintiffs insist that she is not entitled to dower out of any part thereof, the said I. T. having only an equita- ble estate therein or some other estate whereof his widow is not dowable. But the said defendants at other times Claim some other right or interest to or in the said freehold mes- suages, &c. or some part thereof, but they refuse to discover the particulars thereof or how or in what manner they derive or make out the same. And the said defendants Pretend that there are or is some other mortgages, &c. and under such or the like pretences or oJ;hers equally unjust and unreasonable, they the said M. T. the widow and the said M. T. the younger refuse to pay the moneys due to plaintiff's respectively as aforesaid or any part thereof, or to sell the said freehold messuages, &c. or any part thereof for such purpose, and they have got into their possession custody or power the deeds and writings relating thereto, and they refuse to produce the same. All which actings, &c. [^see formYI. p. 5, interrogating to the stating and charging parts.'\ And that an account *may be taken of the money due to plaintiffs respectively for principal and interest as aforesaid, and of the other debts owing by the said I. T. at the time of his death ; and also an account of the personal estate and effects of the said I. T. possessed or received by or by the order or for the use of her the said M. T. the widow, and that such personal estate may applied in payment of his debts in a course of administration, and that the remainder of such debts may be paid out of his real estate, and the rents and profits thereof become due since his death, and possessed or received by or by the order or for the use of them, the said M. T. the widow and M. T. the younger or either of them, and that for that purpose such real estates or a competent part thereof maybe sold, and that all proper persons may join in such sale, and that an account may be taken of all such rents and profits ; and in order to such sale, that all the title-deeds and writings relating to such real estates may be produced. [^And for further relief, see form VIII. p. 5.] May it please, &c. [see form, No. 1, p. 6.] *XLIV. Bill hy husband and wife in right of the wife as adminis- tratrix of an obligee in a bond to attach a legacy to which the obligor was entitled, whilst in the hands of the testator's executor; {the plaintiffs had brought an action on the bond, to which the de- fendant pleaded his discharge, under an insolvent act, but admit- ted the debt; the' plaintiff's thereupon took judgment for the debt and damages, and afterwards the legacy in question having been bequeathed to the defendant, they sued out afi. fa. and took out a warrant for levying the debt and damages out of the legacy.) The Prayer is for an account of what is due in respect of the principal interest and costs at law and for payment thereof out of the legacy ; BILLS BY CREDITORS. 135 — And in case the executor should not admit assets sufficient to pay the legacy, then for an account of the testator's personal estate, and the rents of the real estate charged with the payment of the legacy, and if necessary, for a sale of the real estate, and for an injunction to restrain the executor from paying over the legacy. [Q) To, &c. . Humbly complaining show unto your lordship your orator and oratrix H. Edgell of, &c. and E. his wife, that J. Dawe of, &c. (one of the defendants hereinafter named) by a certain bond or obligation in writing under his hand and seal bearing date , became bound unto R. C. of, &c. the late father of your oratrix and since deceased, in the sum of £200, conditioned for payment unto the said R. C. his executors administrators or assigns of the *sum of £100 with full r *136 ] interest for the same on the day of , as by the said bond to which your orator and oratrix crave leave to refer when produced will appear. And your orator and oratrix further show unto your Death of the lordship that the said R. C. departed this life on or about , in- obligee; ad- testate, and shortly after his decease letters of administration of all CTanteTto'his and singular the goods chattels rights and credits of the said R. C. daughter, deceased were duly granted to your oratrix his only child and next of kin. And your orator and oratrix further show unto your lord- Debt not paid, ship that the said sum of £100 and interest for the same was not paid to your oratrix or orator in right of your oratrix as adminis- tratrix as aforesaid, at the time in the condition of the said bond mentioned, and that thereupon your orator and oratrix commenced Plaintiffs an action at law against the said J. D. for the recovery thereof, ^°™"r'^'^^„t -p. . , •' 'an action at and that the said J. U. in Michaelmas Term m the said year law. pleaded thereto, and by his said plea admitted that the said bond The debt ad- was his deed, and that he owed the said intestate at the time of his ™itted. death the sum of £200, and that he detained the same from your Plea of the in- orator and oratrix, but that they ought not to have execution soly^iit debt- against his person, because on the day of he was in ^^r to'^execu^ parts beyond the seas, and according to a certain act of parliament tion against of our lord the now king holden at Westminster in the county of ^''^ debtor's Middlesex, in the year of his reign, intituled " An act for the P^"^^""^- relief of certain insolvent debtors," afterwards returned and sur- rendered himself to the keeper of the King's Bench prison, and on the day of was duly discharged by virtue of the said act, whereby he became entitled to the benefit thereof. And your orator and oratrix further show unto your lordship that your orator and oratrix by their replication confessed the plea and took judgment Replication for the said debt of £200 and £5 damages to be levied on the lands ^""^ J'^'^g^ent (6) See the case of Edgell v. Haywood and Dawe, 3 Atk. 352 ; relief was granted as prayed. The court did not proceed in this case on the ground of a specific lien, but only considered the legacy as a part of the property of the debtor, which the creditor could not come at without the aid of the court. If after the judgment, or even after the fi. fa. the debtor had assigned the legacy bond fide, for a valuable con- sideration and without notice, it would have been good and prevailed against the plaintiffs; but if after the bill brought, and a lis pendens created as to the legacy, such assignment could not have prevailed ; per Lord Hardwicke, S. 0. 136 BILLS BY CEBDITOES. taken for the tenements goods and cliattels of the said C. D. excepting his wear- debt and da- ijjg apparel, bedding for himself and family, and working tools and ^^S^^- implements necessary for his occupation, not exceeding ^10 in the whole, pursuant to the said act. And your orator and oratrix further show unto your lordship that W. M. of &c. deceased was in his life- time and at the time of his death seised in fee-simple of divers real estates, and possessed of considerable personal estate, and being so seised and possessed, the said W. M. being of sound mind, duly Will of w. M. made and published his last will and testament in writing bearing bequeathing a (j^te the day of and duly executed and attested as by ffooo t(f the ^^"^ required for passing real estates, to the tenor and effect follow- debtor. ing (that is to say) : " I, W. M. of, &c. do make this my last will and testament in manner following : first I give and bequeath unto Mrs. S. R. the sum of £1000 to be due and payable unto her by my executor whom I shall herein appoint, after the expiration of one month next after my decease ; also I give to her all my house- hold goods plate china-ware linen woolen and wearing apparel ; also I give to my cousin J. Dawe the sum of £1000 to be due and payable unto him by my executor whom I shall herein appoint, after the ex- piration of one month after my decease ; also I give unto R. W. and her brother F. W. the sum of £100 in trust nevertheless for the sole use of R. H. wife of J. H. exclusive of any right the said J. H. her r *137 1 *husband shall or may claim, the same to be due or payable to her after the expiration of one month after my decease by my herein appointed executor; also I give devise and bequeath to Mr. T. Haywood of, &c. (the other defendant hereinafter named) and to his heirs for ever, whom I do hereby make ordain constitute and appoint my only whole and sole executor of this my last will and testament, all my goods lands and chattels, except what is herein- before given ; and I do hereby revoke disallow and disannul all other legacies heretofore willed or made by me." As by the said will or the probate copy thereof when produced to this honorable court will more fully appear. And your orator and oratrix further show unto Death of the jo^^ lordship that the said testator departed this life on or about testator. the day of without having revoked or altered his said will, Probatebythe and upon or soon after his decease the said T. H. duly proved the executor who same in the proper Ecclesiastical Court, and under and by "virtue of Wmsdf of th ^^'^^ ^i^^ ^^^ ^^^ probate thereof entered into and upon and obtained personal es- possession of the real and personal estate of the said testator to tate, and en- the amount of £10,000, and more than sufScient to pay the said tered upon the testator's debts and legacies. And your orator and oratrix further The debt re- ^^^^ "'^^'^ 7°^*' lordship that the said judgment being in full force maiuing un- and the Said debt and damages remaining unpaid and unsatisfied, paid, plaintiffs your Orator and oratrix on, &c. sued out of the said Court of of^/ft'^^"' Common Pleas a certain writ oi fieri facias against the goods and chattels of the said J. D. except as before excepted, and the said legacy so given to the said J. D. as aforesaid being then due but unpaid, and in the hands of the said T. H. as the executor of the said testator, your orator and oratrix lodged the said writ of fieri Plaintiffs tools; facias with the sheriff of Middlesex, and took out a warrant thereon out a warrant for levying their said debt and damages out of the said legacy in BILLS BY CEBDITOES. 137 the hands of the said T. H. And your orator and oratrix hoped for levying the that he would have paid their said demand, But now SO it is, &c. ^f^^> *<=■' o"' [s«e form IV. p. 5.] And the said defendants pretend that your ° ^ ^^^^t orator and oratrix ought not to be allowed to attach the said legacy plaintiff's of the said J. D. until the same, is reduced into possession by him. ougiit not to Whereas your orator and oratrix charge that although at law they ^^ allowed to are unable to attach the said legacy in the hands of the said T. H. ^ yet that he is compellable in equity to pay what is due and owing charge that from the said J. D. to your orator and oratrix as aforesaid, and the executor until the same is satisfied he ought to be restrained by the order ought to be re- or injunction of this honorable court from paying the said legacy to l^yl^t thelT- the said J. D., but which the said T. H. threatens to do; and the gacy. said T. H. also pretends that the said legacy was no charge on the Pretence that said testator's real estate, and that his personal estate was insufficient the legacy was to answer his the said testator's funeral and testamentary expenses on jifg real e^- and debts, and that in payment thereof it has been entirely exhausted, tate, and that Whereas your orator and oratrix charge that the personal estate of t^e personal which the said testator was possessed at the time of his death was "^^^^^ ^^^ '°: very considerable, and much more than sufficient not only for the has been en- payment of the said testator's funeral and testamentary expenses and tirely exhaust- debts, and also to satisfy the several legacies given and bequeathed ^'^• by the said testator's will, but nevertheless *the said T. H. refuses [ *138 ] either to admit assets sufficient for such purposes, or to set forth such account as is hereinafter required of him. And your orator Charge that in and oratrix further charge that in case of any deficiency in such '^f^^ °^ a defi- assets, that the said legacy ought to be raised out of the said sets'The°legaI testator's real estates, the same being according to the true and fair cy ought to be construction of the said testator's will charged thereon. (7) All raised out of which actings, &c. [see form VI. p. 5, interrogating to the stating I^IJ^''^ ^^' and charging parts.^ And that an account may be taken by and p^aver under the direction and decree of this honorable court of what is justly due and owing to your orator and oratrix from the said J. D. for principal and interest on their said debt, together with the costs at law which have been sustained by them; and that what shall appear to be due to them may be paid to your orator in right of your oratrix by the said T. H. as such executor as aforesaid out of what is owing to the said J. D. for the principal and interest of his said legacy of d£1000; and in case the said T. H. shall not admit assets of the said testator sufficient to pay so much of the said legacy of £1000 as your orator and oratrix are entitled to, then that an account may be taken of the personal estate and efiects of the said testator which have or might have been possessed by or for the use of the said T. H. ; and in case the same shall be insufficient to satisfy the said demand, then that an account may be taken of the rents and profits of the said real estates which have or might have been received by the said T. H. since the said testator's death; and that (7) "The goods, lands, and chattels are given altogether as one fund, and lands are inserted in the middle, and the whole are subject to the exception of what was given before; this I think amounts to the same as if he had given them subject to what was given before; therefore I think this legacy is a charge on the lands;" per Lord Hardwicke, 3 Atk. 357. And see Noel v. Weston, 2 Ves. & Bea. 269, 274. 138 BILLS BY CREDITORS. such personal estate, and if necessary a sufficient sum of money to be raised out of the said testator's real estate, may be applied after payment of the said testator's funeral and testamentary expenses and debts, in discharge of the said demand of your orator and oratrix ; and that the said T. H. may in the mean time be restrained by the order and injunction of this honorable court from paying over the said legacy of £1000 or any part thereof to the said J. D. or for his use. [_And for further relief see form VIII. p. 5.] May it please, &c. \_seeform No. 1, and 4, p. 6.] [ *139 ] *XLV. Bill hy creditors on behalf of themselves and all other credi- tors, parties to a deed of trust, executed hy a merchant, who had assigned the moneys due on several policies of assurance upon a ship and her cargo {which had been lost at sea,) in trust for the benefit of his creditors — against the trustee, who was also a cre- ditor to a large amount, and had been the merchant's agent in effecting the insurances ; — Charging him with neglect of duty in malcing some of the insurances and mismanagement of part of the property assigned, also ivith having received part of the moneys assured, and applied the same to his own use ; — Prayer for an account and an equal division of the moneys received by the trustee and for an appointment of a new trustee in his place. In the Exchequer. To, &c. Humbly complaining show unto your honors your orators W. R. of, &c. T. B. of, &c. and A. 0. of, &c. debtors and accountants, &c. [see form No. 2, p. 2,] on behalf of themselves and all other the creditors of J. S. fa defendant hereinafter named) who are parties to the deed of trust hereinafter mentioned, who shall come in and contribute to the expense of this suit. That in or about the month of October the said J. S. was possessed of the entire property, Debtor sole ^mj -(^^s the sole owner of a certain ship or vessel called the Gr. M. ship^saiied'^on ^^^ being SO possessed, the said J. S. sailed in the said ship or vessel a voyage with as captain or master thereof on or about the 16th day of October a large cargo from Portsmouth to the islands of A. and D. in with a on board. considerable cargo on board. And your orators further show unto ed two poll- ' J°^^ honors that the said J. S. previously to his sailing on boa.rd cies of insur- the said ship caused two policies of insurance on the said ship and ance on the cargo to be underwritten by the Royal Exchange Assurance Com- ^ f ^""lOoT" P^^J' whereby the said ship and cargo were insured at and from L. The ship and *° ^^^ ^' ^^^ 2100?. And your orators further show unto your cargo receiv- honors that in the said voyage from L. to A. and D. the said ship ed damage on and Cargo received damage to the amount of 1021. lis. 6d. whereby te voyage to ^.j^g g^j^j j g_ ^ virtue of the said two policies of insurance became the amount or .1, .■'„, •i-r>i-ni a i-h 1021 lis 6d entitled to receive 01 the said Koyal Hixchange Assurance Company BILLS BY CREDITORS. 139 the said sum of 1021. lis. 6c?. And your orators further show unto Debtor being your honors that M. L. (a defendant hereinafter named) was the indebted toil, agent of the said J. S. who was indebted to the said M. L. and for g^ve' a "mon- securing the said debt had given a mortgage of the said ship and gage of the also assigned to him the said two policies of insurance hereinbefore ^j^'P ^"^ as- mentioned, which said mortgage and assignment was and were poi°cigj " made as well for securing the said debt as such other moneys as the said M. L. might afterwards advance as such agent as afore- said. And your orators further show unto your honors that the Debtor on his said J. S. having arrived in his said ship at the island of D. and J^'"''° J°y^S<: having taken a cargo for the London market part thereof on his own wrote to M.L. account, and being about to return home wrote the following *letter r *240 1 to his said agent M. L. (that is to say :) [Informing his agent that he ^ effect an i should sail a full ship on or before the 60th of July, and enclosing surance at the the hill of lading, and requesting the agent to make the following Royal Ex- insuranee at the Royal Exchange Assurance Office viz. 1000?. sierZ- '^ ^"^j/f^f^'i'^', ing upon goods, and lOOOZ. sterling upon freight.'] And your ora- 2200^. on the tors further show unto your honors that the said J. S. by his agent ship and cai- the said M. L. also caused a policy of insurance for 22001. to be S°- underwritten, for insuring the said ship and cargo on her said voyage from D. to L. And your orators further show unto your The ship sail- honors that the said J. S. sailed in the said ship the G. M. from ^^ on her the island of D. on his homeward-bound passage, and that the said u°™T*' ,..,, p 11- /yi bound pas- ship With her cargo was untortunateiy lost in a storm on the coast sage and was of France on or about the 27th September , in consequence lostinastorm. whereof, the said underwriters became liable to pay the respective sums mentioned in the said policies of insurance. And your orators Debtor being further show unto your honors that the said J. S. not being able upabletopay. to pay his creditors the whole of their respective debts, and such caiied^a''""* inability arising from the aforesaid loss of the said vessel, the said ing of them. J. S. on or about the 15th day of February called a meeting of his creditors and proposed to assign the said policies of in- Debtor as- surance and the moneys due thereon, and the said sums of 1021. signs the poii- 11s. Qd. due on the said policy of insurance for damage done on ?'^^' °'*°'^'- , . , 1 , 1 1 -1 . ° „ T, 1j- as a trustet the said outward-bound voyage, together with a quantity 01 yellow for the credi- saunders wood and fustic, in lieu of their respective demands upon tois. him, to which proposal your orators as well as the rest of the cre- ditors of the said J. S. acceded, and it was at the same time agreed that the said M. L. should be the trustee for the said creditors of the said J. S., whereupon by a certain indenture bearing date, &c. [stating the deed,], which said indenture was duly signed, sealed and delivered by the said J. S., M. L., your orators and the rest of the creditors of the said J. S. And your orators further That the trus- show unto your honors that since the execution of the said inden- tee has receiv- ture, the said defendant M. L. has received the sum of 2100Z. on on one ™olicy the said policy of insurance in the said indenture mentioned to have and has ap- een made on the homeward-bound voyage of the said ship or plied the same vessel Gr. M., and retains the said sum of 2100/. in his own hands ° isownuse. and applies the same to his own advantage and refuses to make any division of the said sum amongst the creditors of the said J. S. And your orators further show unto your honors that the said de- 14 140 BILLS BY CREDITORS. That the triis- fendant M. L. has also received the sum of 1021. lis. 6d. and teehasreceiv- ^Iso the Sum of lOOOZ. on the said policies in that behalf, herein- on°thro«ier before mentioned to have been made and assigned to him in trust policies. for the creditors of the said J. S. And your orators further That the trus- show unto your honors that the said defendant M. L. neglecting tee suffered jjjg gg^jjj ^j-ust, suffered the said quantity of saunders wood and property as- ^'^^^ic to remain at without ever attempting to sell or dis- sigoedto be- pose of the Same, whereby the said saunders wood and fustic have come spoiled become totally spoiled, and also a considerable sum of money !!'*°"* ^l' and more than the value thereof has become due for warehouse- tetnpting to * i • i i • i i /• j tvt r sell the same. room. And your orators submit that the said deiendant M. L. ought to pay and divide between your orators and the other cre- [ *141 ] *ditors of the said J. S. who have signed the said deed of trust the value of the said saunders wood and fustic, and take upon him- self the payment of the said warehouse-room. And your orators further show that the said defendant M. L. after paying himself his said debt of 1194?. 6s. 8d. ought to have divided the said several sums of money equally between your orators and the other creditors of the said J. S. who are parties to the said indenture, for which purpose your orators on behalf of themselves and such other the Applications creditors of the said J. S. have frequently applied to the said M. L. to defendant ^^^j requested him to make such equal distribution as aforesaid. But the said M. L. combining and confederating with the said J. S. IT. and with divers other persons at present unknown to your orators, whose names when discovered your orators crave leave to insert as Refusals, and parties defendants hereto, with proper charges against them, refuses pretence that to Comply with your orators' said requests, sometimes pretending that ceive^d the'mo- '^® ^^® ^°^ received the said sum of ,£1000 insured on the said policy ney on one on the goods on board the said ship or vessel from D. to L. Whereas policy. your orators charge that the said confederate has received the said Charge that gum of £1000 on the said policy, or if not that he might have re- Qiio-hTh*aTe ceived the same if he had used due diligence. And your orators rec'eived the charge, that if in truth any obstacle arises to prevent the said M. L. same. receiving the said sum due on the said policy, it is entirely owing to That he did his own misconduct in not obeying the directions given by the said not obey his j_ g_ to make the said insurance at the Royal Exchange Assurance in^inakii°o°the O^ce. Whereas your orators have lately been informed that the said insurance" M. L. made the said insurance on the said goods with private under- writers, and procured the policy to be underwritten in his own name, in which case your orators charge and humbly submit that the said and has made defendant M. L. by such misconduct is himself become liable to himself re- answer to your orators and other the creditors of the said J. S. for the amount, t^e said sum of ,£1000 due on the said policy. And at other times Pretence that the said confederate M. L. pretends that the several persons who the under- have underwritten the said policies respectively, refuse to pay the said writers refuse g^jjj ^^g q^ jjjg g.j[j policy, because they allege that the said J. S. to pay because , , , , i i ,i -i i ■ , > ■ ^ , , ■ there were no '^^^ '^o* ^"^J goods on board the Said ship at the time of the making goods on the said policy, or at the time of the loss of the said ship, board at the Whereas your orators charge that the said J. S. had goods on board loss^o°fthe^ the said ship to the value of £1000 and upwards at the time of ship. the making of the said policy and at the time of her loss. And at BILLS BY CREDITORS. 141 other times the said defendant M. L. will pretend that he never had Charge that the said policy for £1000 on the goods of the said J. S. shipped *ere were on board the G. M. from D. to L. in his possession. Whereas ^oard "" your orators charge that it was generally understood at the time pretence that of the execution of the indenture hereinbefore mentioned, and the defendant il. said M. L. declared to the said creditors of the said J. S. that he L. never had had at that time the said policy in his possession. And your orators I'-'^ P° "^^. "^ 1 1 1 •(« 1 1 1 1- 1 • 1 f 1 his possession. also charge, that it he had not a policy made in the name oi the charge the said J. S. in his possession but that the same was made in his own contrary, and name, then that he deceived your orators and the other creditors of *"' ^<^ ought the said J. S. and that he ought to answer the value of the said abie'for'the^'^" policy, the obstacle (if any) to the recovery thereof arising from the amount. *said confederate M. L. having procured the said policy to be made r *142 1 out in his own name, and to be executed by private under-writers instead of the said Royal Exchange Assurance Company, contrary to the direction of the said confederate J. S. in that behalf. And pretence that at other times the said confederate pretends that he did make the the insurance said insurance on the said goods in the name of the said J. S. and '^^^s effected m with the London Assurance Company, but that they refuse to pay ^hjch refuses the same, and therefore as he has not collected the whole of the to pay, and effects assigned by the indenture hereinbefore mentioned, he is not thatdefendant bound to divide among the creditors of the said J. S. any part of bound to what he has collected. Whereas your orators charge that the said make any di- confederate M. L. after paying himself the said debt and expenses fisionuntilali as hereinbefore mentioned, is bound from time to time to divide such ^oiiecW^ ^'^ sums of money as he has collected or shall collect, equally between charge that the creditors of the said J. S. who are parties to the said indenture, after paying but the said confederate M. L. refuses so to do or to permit your himself his orators to see the said policy on the said goods, or in any manner "J'^houg^ ^g to account for what he has collected or might have collected and divide the received by virtue of the said indenture. All which actions, &c. moneys col- [seeform VI. p. 5, interrogating to the stating and charging parts.'] 't'<^ted from And that the said defendant M. L. may be decreed by this honor- i,ut he refuses able court (after paying himself his said debt of 1194Z. 6s. bt^.and so to do or to his other expenses) to account with your orators and the other ere- 'i'^^<=o"°t- ditors of the said J. S. parties to the said indenture who shall come P''^.^'^''- in and contribute to the expense of this suit, for all sum and sums of money received by him from time to time by virtue of the said indenture. And if it shall appear that the said defendant M. L. as the agent of the said J. S. has neglected to obey the directions given him by the said J. S. in regard to the making the said insurance of £1000 on the goods of the said J. S. on board the said ship the G. M. from D. to L., then that he may be decreed to be liable to your orators and the rest of the creditors of the said J. S. parties to the said indenture for the same ; and that the s^id defendant M. L. may be also decreed to account for the value of the quantity of saunders wood and fustic so possessed by him as aforesaid under the said deed of trust, and that the said defendant M. L. may be decreed to pay to your orators and the rest of the creditors of the said J. S. parties to the said indenture, an equal dividend in proportion to their respec- tive debts, of all and every the sum and sums of money which the 142 BILLS BY CREDITORS. said M. L. has received or which might have been received by him by virtue of the said indenture, as well as of such sum or sums of money as the said M. L. is become liable to pay by reason of his said neglect of the orders of the said confederate J. S. respecting the said insurance of JIOOO on the said goods. And that the said M. L. may be removed from being the trustee under the said trust- deed, and that some other trustee may be appointed under the direc- tion and decree of this honorable Court. [^And for further relief, see form VIII. p. 6.] May it please, &c. [see form No. 1, p. 6.] Pray subpoena against M. L. and J. S. [ *143 ] **XLYI. Bill ly creditors against the assignees of a bankrupt and also the bankrupt, who was the acting executor under a will, and also the general agent and consignee of the testator, his co-execu- tors who had not proved the will being also made defendants; — Prayer for an account of testator' s personal estate, debts, ^c. and to have the personal estate administered ; Charging that part of the personal estate was existing in specie in the hands of the bank- rupt at the time of his bankruptcy and had been possessed by his assignees. — Praying also for an account of what was due to the testator's estate from the bankrupt, and that the amount may be proved against the bankrupt's estate ; — for a receiver to collect the outstanding personal estate, and particularly a quantity of cotton which had been bought by testator's agents in India with the balance of an account due from them, and had been consigned to the bankrupt as executor ; — that the receiver may be authorized to insure the cotton, and to sell the same on its arrival, and also to receive the dividends to arise in respect of the debt to be proved against the bankrupt' s estate, and for an injunction to restrain the bankrupt and his assignees from receiving the cotton and any outstanding personal estate. To, &c. Humbly complaining showeth unto your lordship your orator J. C. of, &c. for and on the behalf of himself'and all other the creditors of W. S. formerly of, &c. and afterwards commander of the East -India ship called the B., who shall in due time come in and contribute Debt due to to the expense of this suit. That the said W. S. was at the time of the plaintiff, his death justly and truly indebted to your orator in the sum of 200Z. and upwards for goods sold and delivered, and that the said W. S. was at the same time indebted to divers other persons in Death of the Several sums of money to a very large amount in the whole. And that debtor at sea. the said W. S. SO being indebted, departed this life at sea on board the said ship B. on or about th« of , in the year , His will. having first duly made and published his last will and testament in writing, bearing date the day of , whereof he appointed BILLS BY CRBDITOES. 143 executors and executrix J. B. of, &c. H. S. of, &c. and J. S. of, &c. together with the said testator's wife M. S. of, &c. And that some One of the time after the said testator's death, the said J. B. alone duly proved executors his said will in the proper Ecclesiastical Court, and took upon him- ^^°"^ proved self the burthen of the execution thereof, and thereby became and now is his legal personal representative, but power was reserved of granting administration of the said testator's estate to the said H. S., J. S. and M. S. (the other executors of the said will) when they should apply for the same. And your orator further showeth unto ,j,j^g actine your lordship that under and by virtue of the probate of the said executor pos- will the said J. B. possessed himself of and received the greatest sessed himself part of the personal estate and effects of the said testator in E. °f ^^^ person- to a very considerable amount in the whole, but the same were not as it was alleged sufficient for the payment of the said testator's funeral and testamentary expenses and debts, and the said J. B. did not apply the same or any part thereof in payment of what was due to *your orator and several others of the creditors of the said testator, r *144 ] And your orator further showeth unto your lordship that the said rpf,g testator's M. S. possessed herself of some part of the said testator's personal widow also estate and applied the same to her own use, but she hath not acted possessed her- as an executrix of the said will. And your orator further showeth ^ ° "^^ ' unto your lordship that the said J. B. having committed some act or ^jj'g acting acts of bankruptcy, a commission of bankrupt under the great seal executor. of the United Kingdom of Great Britain and Ireland bearing date the day of was duly awarded and issued against him and he was duly found and declared bankrupt under the same. And that H. C. of, &c. T. C. of, &c. and S. W. of, &c. having been duly chosen and appointed assignees of the estate and effects of the said bank- rupt J. B., an assignment thereof was duly executed to them by the major part of the commissioners in the said commission named. And your orator further showeth unto your lordship that at the The bankrupt . time of the bankruptcy of the said J. B. he was indebted to the ^^_ ^^^ time of estate of the said W. S., and some parts of the personal estate of cy^as^ndebt- the said W. S. were in the hands of the said J. B. in specie. And ed to the tes- that the said H. C. T. C. and S. W. as assignees of the said J. B. tator's estate have possessed themselves of such personal estate and they threaten ^^^^ of th °™* and intend to apply the same in payment of the creditors of the personal es- said bankrupt under the said commission. And your orator further tate in his showeth that the said W. S. was at the time of his death entitled to ^^^^l^^ ^^®j divers goods and merchandizes which he had left at M. in the East tjjg assio-nees Indies for the purpose of being there sold on his account, by or have posses- under the directions of Messrs. A. and Co. of M. aforesaid, and ^^^ "^^m- that such goods and merchandizes were accordingly sold and that „ . . the proceeds thereof, as the same were from time to time received, ^jg^ j^ goods, were placed to the credit of the said W. S. or his estate in account &c., in India, with the said Messrs. A. and Co. And that the whole of such ^^bkh were goods and merchandizes being so sold, the said Messrs. A. and Co. ^gents'^^afte^r in or about the month of , , made out and stated a final his decease account as between themselves and the estate of the said W. S. ^nd by their And that by such account it appeared as the fact is, that of the ance'appear^ed balance of the said account ihe sum of 6349 rupees or thereabouts, against them. 144 BILLS BY CREDITORS. being about 1211. 10s. sterling was due and owing from the said The balance Messrs. A. and Co. to the estate of the said W. S. And your invested in the orator further showeth unto your lordship that the said Messrs. A. couon'' whL ^^^ C°- ^^^^ o^*^ ^^^ invested the said balance or sum of 1211. 10s. was consigned in the purchase of 97 bales of cotton, which they shipped on board to the execu- the East India ship called the E. captain T. E. W. then bound to tor the bank- ^^ ^^^^ consigned the said cotton to the said J. B. for account and colint°of'tes- risk of the estate of the said W. S. And your orator further tator's estate, showeth that the said Messrs. A. and Co. duly signed an invoice of and the agents ^he said 97 bales of cotton, and that in such invoice it is expressly voUx thereof' Stated that the said cotton was consigned to the said J. B. for account and risk of the estate of the late captain S. of the ship B., and that freight was payable at E. at 41. per ton of 50 cubical feet, and The captain that insurance was ordered of the consignee in England. And your signed a set of orator further showeth that the said T. E. W. the captain of the bills of lading, g^^j^j gj^jp -^ ^^-^^ signed a set of bills of lading of the said cotton; [ *145 ] *and that by such bills of lading it is expressly stated that the said 97 bales of cotton were shipped by the said Messrs. A. and Co. and consigned to the said J. B. for account of the estate of the late captain S. or his assigns, freight for said goods being payable 60 The ship still days after arrival, at the rate of £4= per ton of 50 cubical feet. And at sea and your orator further showeth unto your lordship that the said ship E. j.^' "is still at sea on her passage to E. with the said 97 bales of cotton on board; and that the said ship is daily expected to arrive in E. but that duplicates of the said invoice and bills of lading have been sent to E. in other ships which have arrived; and that such duplicates of the said invoice and bills of lading have been delivered to the said Thataninsur- J. B. since his bankruptcy. And your orator further showeth unto auce ought to ^q^j. jgrdship that an insurance ought to be effected on the said 97 but\he acting hales of cotton, SO as to insure the safe arrival thereof in England, executor but that the said J. B. being an uncertificated bankrupt is unable to being an un- effect such insurance; and the said H. S. J. S. and M. S. although b^"^ krupt'^is *'^®y have not renounced probate of the said will nevertheless neglect unable to ef- or refuse to act in the execution of the said will or to take charge of feet the same the said cotton, and the said H. C. T. C. and S. W. as assignees of and the other ^j^^ estate and effects of the said J. B. claim a right to receive the named in the Said cotton. And that under such circumstances a proper person will refuse to ought to be appointed by this court to receive the said 97 bales of ^'^^- cotton; and that such person ought to be authorized to effect an That a re- insurance upon the said cotton, and after the same shall arrive in ceiver ought -riiini i to be appoint- Jtlinglana to sell and convert the same into money, and out of such ed and autho- money to pay the expenses of such insurance and all proper and T'^'^ 'n '"^"'^^ necessary expenses attending the receipt and sale of the said cotton, and that the surplus of such moneys ought to be paid into the bank in trust in this cause, and the same ought to be applied in due course Applications, of administration in payment of the debts of the said W. S. And your orator further showeth unto your lordship that your orator hath frequently and in a friendly manner by himself and his agents, applied to the said J. B. H. C. T. C. and S. W. and requested them to account for all and every the personal estate and effects of the said W. S. which have been possessed by them respectively, and to BILLS BY CREDITORS. 145 apply the same in a due course of administration in payment of what is due to your orator and the other unsatisfied creditors of the said W. S. And your orator well hoped that such his just and reasonable requests would have been complied with as in justice and equity ought to have been the case. But now so it is may it please, &c. [see form IV. p. 5.] The said defendants refuse to comply with the Pretence that said requests, sometimes pretending that the said W. S. was not at nothing is due the time of his death indebted to your orator or any other persons, *° pi^i^'iff- and though at other times the said defendants admit as vour orator ^^^"^s^ ^^^ 11 1 ft 1 1 contrary. expressly charges the contrary oi such pretence to be true, yet then pretence that they pretend that the personal estate of the said W. S. possessed by the personal the said J. B. was of very small amount. Whereas your orator estate is very charges the contrary, and that so the truth would appear to be if the ^™^''- said defendant J. B. would set forth such accounts as are hereinafter contpfr prayed for, but which he refuses to do. And your orator *further r ^-tAo. -, charges that at the time of the bankruptcy of the said J. B. some >■ ^ part of the personal estate of the said W. S. which was in E. was the"meofthe existing in specie, and was in the hands or possession of the said bankruptcy J. B. and that the same has lately been possessed by the said H. C. P*""' of the T. C. and S. W. who refuse to account for the same ; and they F5f ""!' ?^' 1 1 • 1 T Tl 1 1 '■^''^ ^^^ "^ sometimes allege that the said J. B. was the general agent and specie, and consignee of the said W. S. and was in the habit of advancing money lias been pos- to or for the use of the said W. S. iu his life-time, and of his estate ^^^^,^^ ^J the after his death on the faith of the consignments which were to be ^^ „ , \ -, 1 ■ /. 1 1 <■ 1 ■ 1 TTT CI 1 ■ Ueieudants made to mm tor and on the account oi the said W. b. or his estate, allege that the And that at the time of the bankruptcy of the said J. B. he was as bankrupt was such general agent and consignee, a creditor upon the estate of the ^^'^ testator's said W. S. in a considerable sum of money due to him on the balance consignee of his account with the said estate, and thereupon the said H. C. andwas a'cre- T. C. and S. W. as assignees of the estate and eifects of the said ditor upon his J. B. claim to be entitled not only to hold the said personal estate We^'amo^unt of the said W. S. now in B. but also to receive the said cotton now and that his on board the said ship E. and to apply the said personal estate in assignees are England, and also the said cotton when the same shall arrive, in ^"v th t° ^i' liquidation of such balance so alleged to be due to the said J. B. tor's personal Whereas your orator expressly charges that although the said W. S. estate, and did in his life-time employ the said J. B. as his general agent and also the cotton consignee, and at the time of the death of the said W. S. an account yal, in liqui- was subsisting between him and the said J. B. and such account was dation of the afterwards continued between the said J. B. and the estate of the balance dueto said W. S. yet your orator charges that at the time of the bankruptcy "^ ^"th"t of the said J. B. the balance of the said account was not in favor of the balance the said J. B. but on the contrary was in favor of the said estate of was in favor the said W. S., and that a considerable sum of money is now due ofthetesta- upon such balance of the said account from the estate of the said J. B. ^^^ ought to to the estate of the said W. S. and that the amount of such balance be proved as a ought to be ascertained and proved as a debt against the estate of the "^ebt against^ said J. B. And your orator further charges that even if a balance esta^je"'^'^"'^*^ were due on such account as aforesaid from the estate of the said Qjiargg that if W. S. to the estate of the said J. B. which your orator doth not the balance is admit, yet that such balance is of small amount and much less than due to the es- 146 BILLS BY CKBDITORS. tateofthe the value of the said cotton. And that the said H. 0. T. C. and bankrupt, his g_ yif ^re not entitled to apply the personal estate of the said W. S. not'!ntUled to ^^"^ i" ^- and the said cotton when the same shall arrive, in payment a priority over of such balance in priority to the demands of your orator and the the other ere- other creditors of the said"W. S. ; but on the contrary thereof, that ^^^°^^- the said cotton and all the other personal estate of the said W. S. ought to be applied in payment of the debts due to all the unsatisfied creditors of the said W. S. rateably and in proportion to their respective amounts. And that the said H. C. T. C. and S. W. are not as, such assignees as aforesaid, entitled to any priority in respect of such alleged balance before the other creditors upon the estate of the said W. S. But that nevertheless the said H. C.T. 0. and S. W. claim to be entitled to the said personal estate in E. and to the said cotton, and they refuse to concur in the appointment of a proper person to receive the said cotton on the behalf of all persons interested [ *147 ] *therein. And your orator further charges that the said H. C. T. C. Charge in sup- and S. W. if they shall be permitted to receive the said cotton, port of the threaten and intend immediately to sell the same, and to apply the Fnjimctioii. ^"^ proceeds thereof in payment of the creditors of the said J. B. with- out any regard to your orator and the other unsatisfied creditors of the said W. S., and that they ought to be restrained from so Charge that doing. And your orator charges that the said M. S. ought to ac- the other exe- count for SO much of the personal estate of the said W. S. as was cutors refuse possessed by her, but that she refuses so to do, and that the said H. S. actTa°the exe- J- S. and M. S. although they claim to be entitled to take out cution of the administration to the estate of the said W. S. nevertheless refuse ^iii- to do so, or to interfere in the execution of his will. All which actings, doings, pretences, and refusals, &c. \_see form VI. p. 5, in- Prayer. terrogating to the stating and charging parts.^ And that an account may be taken by and under the directions and decree of this honor- able court of all and every the personal estate and effects of the said testator W. S. which have been possessed or received by or by the order or for the use of the said defendants J. B. H. 0. T. 0. S. W. and M. S. or any or either of them. And that an account may in like manner be taken of all and every the funeral and testamentary expenses and debts of the said testator, and particularly of what is due and owing to your orator and the other unsatisfied creditors of the said testator ; and that the personal estate may be. applied in a due course of administration in payment so far as the same will ex- tend, of the said funeral and testamentary expenses and debts, and that the amount of what was due and owing to the estate of the said W. S. from the said J. B. at the time of his bankruptcy may be ascertained, and that the same may be proved as a debt against the estate of the said J. B. under the commission of bankrupt issued against him as aforesaid. And that a proper person may be appointed by this honorable court to collect and receive the out- standing personal estate of the said W. S. and particularly to receive the said 97 bales of cotton now on board the ship E. as aforesaid ; and that such person so to be appointed such receiver may be authorized or may be at liberty to lay out and expend a sufficient sum of money to insure the safe arrival of the said cotton in B. ; BILLS BY CREDITORS. 147 and may be directed to sell such cotton yfhen the same shall arrive in E. and to receive the money to arise from the sale thereof, and to apply a sufficient part of such money in repaying what he shall extend in respect of such insurance as aforesaid, and in paying all necessary and proper expenses attending the receipt and sale of the said cotton, and to pay the surplus of such money into the bank in the name and with the privity of the Accountant-General of this court, in trust in this cause ; and that such person so to be appointed such receiver may be directed to receive all such dividends and sums of money as shall arise and be paid in respect of the debt to be proved as aforesaid against the estate of the said J. B. And that the said defendants J. B. H. 0. T. C. and S. W. may be respectively restrained by the order or injunction of this honorable court from collecting and receiving the outstanding personal estate of the said W. S. and particularly from receiving the said cotton now on board the said *ship E. as aforesaid, and from intermeddling therewith ; and that [ *148 ] your orator and the other unsatisfied creditors of the said testator W. S. may have such further or other relief in the premises as the nature and circumstances of this ease may require and to your lord- ship shall seem meet. May it please your lordship, &c. [see forms, No. 1, and 4, p. 6.] Pray subpoena and injunction against J. B. H, 0. T. 0. and S. W. and subpoena against E. S. J. S. and M. S. XL VII. Bill by a judgment creditor on behalf of himself and the other creditors of the intestate, against his administrator and heir at law, praying a sale of mortgaged premises to pay off a mort- gage made to the plaintiff, and in case of a deficiency to be adm.it- ted a creditor on the general assets of the intestate ; praying also for payment of the arrears of an annuity secured by a demise of other premises, and by a warrant of attorney, to have a value set upon the annuity, and the premises sold; and in case of a defi- ciency to be admitted a creditor on the general assets ; praying also for an account of the intestate s personal estate, and to have the same duly administered. Humbly complaining showeth unto your lordship your orator H. M. of, &c. on behalf of himself and all other the creditors of T. H. who shall in due time come in and contribute to the expenses of this suit, That by indentures of lease and release bearing date respec- tively, &c. your orator in consideration of a certain post obit security for the sum of <£ therein mentioned, conveyed to the said T. H. the fee simple and inheritance of freehold unfinished house, situate, and being, &c. And your orator further showeth that by Mortgage by indenture bearing date on the same day of the said T. H. demise to the in consideration of the sum of £ then lent and advanced by ceXin^pre- your orator to the said T. H. granted and demised to your orator mises. of the before-mentioned houses for the term of years by 148 BILLS BY CREDITORS. way of mortgage. And in the said indenture is contained a cove- nant for payment of the said £ and interest, and the usual proviso of redemption. And your orator further showeth that by a certain other indenture, bearing date the same day of the said T. H. granted and demised the other of the before- mentioned houses for the term of years in trust for the further and better securing to your orator, either by the receipt of the rents, or by sale or mortgage of the said last-mentioned premises, annuity or clear yearly sum of for and during the natural life of your orator, which annuity had been before granted to your orator by the said T. H. by a certain indenture bearing date on or about the day of . As in and by the said several ^indentures to which your orator craves leave to refer when produced will appear. And your orator further showeth unto your lordship that the said T. H. departed this life on or about intestate, and without issue, leaving T. H. of, &c. his only brother and heir at law, (the defendant hereinafter named) him surviving; whereupon the reversion of the said houses at aforesaid, descended to and became vested in the said T. H. subject to the said two terms of years. And your orator further showeth that upon or soon after the death of the said intestate, the said T. H. obtained letters of administration of the goods, chattels, personal estate and eifects of his said late brother, to be granted to him by and out of the proper Ecclesiastical Court, and by virtue thereof hath possessed himself of the personal estate and effects of the said intestate to a considerable amount. And your orator further showeth that the said intestate, in his lifetime, paid the interest due to your orator upon the said mortgage, up to the day of , and the arrears of the said annuity up to the day of but the whole of the said principal sum of £ together with all the interest thereon from the said r-day of now remains due to your said orator, as well as all the arrears of the said annuity from the said day of . And your orator further showeth that he is a judgment creditor of the said T. H. in respect of the said arears of the said annuity, by virtue of a warrant of attorney made and executed by the said T. H. at the time of granting the said annuity, and on which judgment hath been duly entered up by your orator. And your orator further showeth that the said houses comprised in the aforesaid mortgage being an insufficient security, your orator is advised that he is well entitled to have a sale of the said houses, and to have the produce thereof applied, as far the same will extend, in payment of the said principal sum of £ and interest, and to be admitted as a specialty creditor against the general assets of the said intestate for the deficiency, and that he is also well entitled to have a value put upon his said annuity, and in like manner to have a sale of the said other houses, demised as aforesaid for the security of the said annuity, and to have the produce thereof applied, as far as the same will extend, in satisfaction of the value which shall so be set on the said annuity, and of the arrears due thereon, and to be admitted as a judgment creditor against the general assets of the said intestate. Applications, in respect of any deficiency. And your orator further showeth that Grant of an annuity se- cured by de- mise of otlier premises. [ *149 J Deatli of tlie mortgagor in- testate. Administra- tion granted to deceased's brother and heir at law. Statement of the amount due in respect of the mort- gage and an- nuity. BILLS BY CREDITORS. 149 he hath by himself and his agents, repeatedly applied to the said defendant T. H. for the purposes aforesaid; and your orator well hoped that the said T. H. would have complied with such your orator's requests as in justice and equity he ought to have done. EuT NOW so IT IS, &c. [see form IV. p. 5,J the said defendant absolutely refuses so to do. And the said defendant sometimes pretends that the personal estate of the said intestate is small and inconsiderable. Whereas your orator charges the contrary thereof to be the truth ; and so it would appear if the said defendant would set forth as he ought to do a full and true account of the personal estate and effects of the said *intestate, and of his application thereof. All [ *150 ] which actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts.~\ And that the said defendant may answer the premises; and that Prayer. an account may be taken of the principal sum and interest remaining due to your orator on the aforesaid mortgage security, and that the said mortgaged premises may be sold, and the produce thereof applied, as far as the same will extend, in satisfaction of what shall be so found due; and that your orator may be admitted as a creditor against the general assets of the said intestate in respect of the deficiency; and that a value may be set upon the said annuity of £j , and that an account may also be taken of the arrears of the said annuity, and that the said houses demised as aforesaid for the security of the said annuity may in like manner be sold, and the produce thereof applied, as far the same will extend, in satisfac- tion of the value so set upon the said annuity, and of the said arrears, and that your orator may be admitted as a creditor against the general assets of the said intestate in respect of the said deficiency, and that an account may be taken of the said intestate's personal estate and effects possessed or received by the said defendant, or by any other person or persons by his order or for his use ; and also an account of the said intestate's funeral expenses and just debts, and that the said personal estate and effects may be applied in payment of what shall remain due to your orator in respect of the matters aforesaid, and of the other creditors of the said intestate, in a due course of administration. \_And for further relief, see form VIII. •p. 5.] May it please, &c. [see form No. 1, p. 6.] J. li. XL VIII. Bill hy a bond creditor on behalf of himself and other creditors of the testator who had devised certain estates to his brother and heir at law, upon trust to sell, to go in aid of his personal estate — the surplus moneys to be laid out in lands to be settled to the like uses as certain other estates of which testator's brother was tenant for life under the tvill — The testator's brother entered into possession of the estates devised in trust to sell, and afterwards died, having made a will and leaving his eldest son his heir at law, who also entered into possession of the same estates, and afterwards conveyed them to trustees for the benefit of his 150 BILLS BY CREDITORS. creditors — The prayer is — -for an account of the testator's debts, and payment out of the personal estate, and the rents of the estates charged with the payment of the debts ; and in case of a deficiency that those estates may be sold ; — also for a production of the title- deeds ; for an account of the rents received by the testator s brother and his son since his death — that the amount received by the testator's brother may be paid out of his assets, and in case his executors should not admit the same to be sufficient, then for the usual accounts of his personal estate, debts, ^c. To, &c. Humbly complaining showeth unto your lordship your orator A. B. a creditor of the right honorable R. C. late of, &c. deceased, and L l^l J *late Lord Chief Justice of the Common Pleas in , on behalf of himself, and all other the creditors of the said R. C. who shall come in and seek relief by and contribute to the expense of this suit ; That the said R. C. having borrowed of and being indebted unto plaintiff in the sum of £ , he for securing the re-payment there- of with lawful interest for the same, duly executed a certain bond or obligation in writing bearing date, &c. in the sum of £r' , with a condition thereunder written for making the same void, on payment by the said R. C. his heirs, &c. unto your orator his executors ad- ministrators or assigns of the said sum of £ with lawful interest for the same at a time therein mentioned and long since past. As in and by, &c. That the said R. C. was in his life-time and for some time before and until the time of his death seised or otherwise well entitled in fee-simple of or to the manor or lordship of B. together with divers messuages or tenements farms lands and hereditaments situate and being within the parishes or townships of B. A. and H., and also of or to the manors or lordships of A. and W. and divers messuages farms lands tenements and hereditaments situate and being in the several townships of A. W. B., &c. and elsewhere in the county of L. a large value in the whole, and also possessed of a considerable personal estate and effects ; and that the said R. C. being so seised, possessed, or entitled, and being of sound mind, memory and under- standing, duly made and published his last will and testament in writing, bearing date on or about, &c. and which was executed by him, and attested in such manner as by law is required for devising and passing real estates ; whereby after declaring it to be his will and mind, that, &c. [directing his debts and legacies to be first paid out of his personal estate, and after devising the manors of A. and W. to his brother JE. Q. for life, remainder to trustees to preserve contingent remainders, remainder to his nephew R. 0. for life, with remainders over, as therein mentioned, devised the manors of E. A. and M. to his said brother U. 0. upon trust to sell or mortgage the same, to go in aid of his personal estate in case of a deficiency, and the surplus moneys to be laid out in lands to be settled to the same uses as the manors of A. and TF.] And the said testator appointed the said B. C. and R. C. executors of his said will. Bond execu- ted to the plaintiff for securing a debt due to him. Debtor seised of certain es- tates. His will. BILLS BY CRBDITOKS. 151 That the said testator by a codicil to his will annexed bearing date, &c. which was also executed and attested, &c. after recit- ing, &c. That the said testator departed this life on or about without Death of tes- revoking or altering his said will, save by the said codicil, and without ^-^'"^ without revoking or altering the said codicil, and without leaving any issue, hTs^brotherMs and leaving the said E. C. his brother his heir at law, and his heir at law. nephews, the said R. C. now Sir R. C. bart. R. C. W. C. and I. C. him surviving. That the said testator was at the time of his death indebted unto plaintiff in the said principal sum of £ upon the aforesaid secu- rity, and also to divers other persons upon sundry diiferent securities to a large amount in the whole. That upon testator's death E. C. and R. C. duly proved his said will Probate by in the proper Ecclesiastical Court, and by virtue thereof possessed ^^^ executors. *all the personal estate and effects of or belonging to testator at the [ *152 ] time of his death, or so much thereof as they were able to a consid- The personal arable amount in the whole, and which as it is alleged, were very fstate being insufficient for the payment of testator's debts ; and all testator's anT the'real debts being made a charge upon testator's estates in E. A. and H. estate charg- and which were more than sufficient for the payment thereof, and all ^d being am- and most of the said debts being due and owing upon securities, tes- ^j^^ ex^""!''^' tator's executors applied all or the greatest part of testator's per- applied the sonal estate and effects in the payment of the legacies given by the personalty in testator's will, all of which have been long since paid and satisfied. P*'?™.™* °^ That immediately upon or soon after testator's death, E. C. entered mi, u • ^ 1,1 •' \ p n 1 1 , n i- 1 J-he heir at upon and took possession oi all the real estate whereof testator died law entered seised, and continued in possession and receipt of the rents and upon the real profits thereof until the time of his death. estate. That E. C. departed this life on or about, &c. leaving the said Sir His death and R. C. bart. his eldest son and heir at law, and having first made and '''i'l- published his last will and testament in writing, and thereby ap- pointed his sons, the said R. C. and W. C. two. of the nephews and devisees named in the will of testator R. C, executors thereof. As in and by, &c. That upon the death of E. C. the said Sir R. C. and W. C. proved Probatebythe his said will in the proper Ecclesiastical Court, and by virtue thereof executors who possessed themselves of all the personal estate and effects whereof assets of the the said E. C. died possessed, to a considerable amount and value in first testator. the whole, and more than sufficient for the payment of his debts, particularly to answer and satisfy so much of the personal estate and effects of R. C. as was possessed by E. C. in his life-time, and they have likewise possessed some parts of the specific personal estate and effects of or belonging to the said testator R. C. That upon the death of E. C. the said Sir R. C. by virtue of the Upon his said will of his uncle the said testator R. C. entered upon and took i^eath his son possession of all the said real estates so devised by the will of testa- possession*°f tor R. C. as aforesaid, particularly the estates and premises at E. A. the said es- and H. aforesaid, and he ever since hath been and still is in posses- t^^tes charged. sion or receipt of the rents and profits thereof. That the whole of the said principal sum of £ , with an arrear 152 BILLS BY CKEDITOKS. The debt due of interest for the same, still remains due and owing to plaintiff to the plain- ^p^jj j^jg aforesaid security, and that divers other of the debts due and owing from testator R. C. at the time of his death still remain unpaid. Applications. That plaintiff hath at several times applied to the said Sir R. C. W. C. and R, (J. and requested them to pay to him the principal and interest due on the aforesaid bond out ot the estate and effects of the said testator R. C, and that divers other applications have also been made unto them by the several other unsatisfied creditors of the said testator for payment of their several debts. AuA plaintiff ^nA such several other creditors well hoped, &c. But now so it is, dfcc. the said Sir R. C. R. C. and W. C, combining with A. B. of, &c. and C. D. of, &c. and the honorable I. D. S. commonly called lady I. D. S. of, &c. Pretence that [see form VI. p. 5,] absolutely refuse so to do ; and the said R. 0. no money is pretends that plaintiff diidi not lend or advance to the testator R. 0. the plaintiff. '^aforesaid sum of £ , or any part thereof, and that he never r *153 1 executed such bond to plaintiff, or that the said debt and all interest due thereon have long since been paid and satisfied, and that no Charge the money is now owing to plaintiff in respect thereof. y'jii by his the probate thereof upon or soon after the said testator's death, ■^'ijiow, who entered upon and took possession of all his freehold estates by his said the freehold will devised to her for her life, and she hath ever since been and now messuages, is in the possession and receipt of the rents and profits thereof, and ^^ P°^^^^^^'^ she also possessed herself of all the personal estate and effects of the personal es- said testator to a very considerable amount; and she thereout or out tate. of the produce thereof payed the said testator's funeral expenses and all or most of his debts, your orator's said debt excepted; and the said M. T. the said testator's sister upon or soon after his death entered upon and took possession of the said copyhold messuage or tenement devised to her for her life as aforesaid. And your orators 158 BILLS BY CKEDITOES. Debt still due further show unto your lordship that the said principal sum of .£■ the plaintiffs. ■■------• Applications to the execu- trix. [ *159 J Pretence that testator was greatly in- debted, and that the per- sonal estate is insufficient, and that no part is unad- ministered, except what may be com- ing in respect of the co-part- nership in which the tes- tator was en- gaged, and that he was not entitled to any freehold lands, &c. Charge that the personal estate was very consider- able, and am- ply sufficient, and that the executrix has wasted and misapplied part. is Still remaining due and owing to your orators with an arrear of interest, and that your orators have frequently since the said testator's death by themselves and their agents applied to the said S. T. as his personal representative, and requested her to pay the said bond debt and interest. And your orators well hoped that she would have paid the same accordingly, and that in case of any deficiency of the said testator's personal estate the same would have been answered and made good out of the said freehold and copyhold estates, as injustice and equity ought to have been the case. But now so it is may it please your lordship that the said T. T. combining and confederating to dnd with J. P. and M. his wife, W. T. T. K. M. T. and F. J, and with divers other persons, &c. [see form IV. p. 5,] she the *said S. T. absolutely refuses so to do. And she pretends that the said testator was at the time of his death indebted to several persons besides your orators on bonds and specialties and otherwise in sev- eral considerable sums of money, and that the said testator's per- sonal estate and effects which have been possessed by her or by any person by her order or for her use were inconsiderable and insufficient to answer and satisfy such debts by specialty, and the said testator's funeral expenses and testamentary charges and other charges re'spect- ing the administration of his estate and effects ; and she also pretends that there is not any part of the said testator's personal estate and effects outstanding and undisposed of or unpossessed or unadminis- tered by her, except what may be coming from the said F. J. in respect of the said copartnership in which the said testator was en- gaged with him, and that she hath used her best endeavors and taken all due care and diligence to settle the accounts of the said copart- nership with the said F. J. to obtain payment from him of what is coming therefrom to the said testator's estate, but hath not been able as yet so to do. And she also pretends that the said testator was not at the time of his death seised of or entitled to or interested in any freehold lands tenements or hereditaments, or if he was that she or any person on her behalf or claiming under her has not been nor is in possession of the rents and profits thereof, or at least that she is entitled to the rents and profits thereof for her life. Whereas your orators charge the contrary of such pretences to be the truth. And your orators further charge that the said testator at the time of his death was possessed of or entitled to a considerable personal estate and effects and more than sufficient to satisfy his funeral ex- penses and debts or at least his debts by specialty, and that the said defendant or some person by her order or for her use hath pos- sessed or received, or without some wilful neglect or default might have possessed or received, the whole of such personal estate and effects, and your orators charge that the said defendant S. T. hath wasted and misapplied part of the said testator's personal estate, and has made divers payments thereout which ought not to have been made thereout, and hath permitted parts of the said testator's personal estate to be possessed or received by other persons as a legacy, or in satisfaction of debts by simple contract, and so the same would appear if the said defendant would set forth a full true BILLS BY CREDITORS. 159 and particular account of all the said testator's personal estate goods chattels and effects possessed by her, or by any person or per- sons on her behalf, or for her use or by her permission, and would set forth how she has sold or disposed of and applied the same, and also a full true and particular account of the said testator's personal estate and effects remaining outstanding and unpossessed by her, but this she refuses to do ; and in case the said testator's personal estate Charge tbat in shall not on a fair account to be taken thereof be suflScient to answer '^'^^e the per- your orators' said debt, your orators insist that the deficiency ought not'^suffideVt^ to be made good out of the said testator's freehold and copyhold the deficiency estates, and that the same or a sufficient part thereof ought to be sold oug^t to be for that purpose ; but this the said defendants S. T. and J. P. and ^uluhe ^'^' M. his wife, W. T. T. R. and M. T. severally refuse to consent to, freehold and ^although they have not any title to the said freehold and copyhold copyhold es- estates or any part thereof except under the said testator's will ; '^'^^• and the said S. T. and M. T. refuse to account for the rents and [ "'160 ] profits of the said estates received by them or for their use, or to apply the same in or towards the payment of your orators' said debt. And the said W. T. T. R. M. T. and J. P. and M. his wife, severally pretend that the said testator's personal estate and effects are suffi- cient to answer and satisfy your orators' said debt and all the other debts, and they therefore object to any sale being made of any of the said freehold and copyhold estates for payment of your orators' debt. And the said several defendants or some of them at times set up divers claims to the said freehold and copyhold estates in opposition to the said will. And they at times pretend Pretence that and insist that the said F. J. as a co-obligee in the said bond, or as "^^ co-obhgee the surviving partner of the said testator, ought to pay your orators f^^ plaintiff's the said bond debt; but the said F. J. pretends and insists that debts, butthat the said testator or his estate has had the benefit of the said sum of be insists that £ the consideration of the said bond, and that he has not any estate^ oueht effects of the said testator in his hands coming to the said testator's to pay the estate, and therefore that the bond ought to be paid by the said same. S. T. out of the said personal estate ; or in case of a deficiency of such personal estate out of the said freehold and copyhold estates. Whereas your orators insist tbat in case of any deficiency of such the said testator's real and personal estates to satisfy the said bond debt, the said F. J. ought to answer and pay the same and make good the said deficiency, but he refuses or declines so to do. All which actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts.^ And that an account may be taken by and under the direction and Prayer, decree of this honorable court, of what is due for principal and interest on the said bond ; and that an account may also be taken of the personal estate and effects of the said testator, possessed by or come to the hands of the said S. T. or any person by her order or for her use or with her permission, or which without her wilful neglect or default might have been possessed by her; and that she may be decreed to pay to your orators what shall appear to be due and owing to them for principal and interest on their said bond out of the said testator's personal estate in a due course of administra- 160 BILLS BT OEEDITOES. tion. And in case the same shall not be sufficient for that purpose, then that an account may be taken of the rents and profits of the said testator's said freehold and copyhold estates received by them the said defendants S. T. and M. T., respectively, or for their use; and that what shall appear to have been received by them or either of them or a sufficient part thereof may be applied in or towards making good the said deficiency ; and in case the said several funds shall be insufficient for paying and answering your orators' said debt and interest, then that a sufficient sum of money may be raised by sale or mortgage of the said testator's said freehold and copyhold estates or a sufficient part thereof, subject to such mortgage or mortgages as are now subsisting thereon, for making good such defi- [ *161 ] ciency, and applied accordingly; and that the *said S. T. M. T. &c. &c. and all proper parties may join in such sale or mortgage; and in case all the said testator's estates shall be insufficient for payment of your orators' said bond debt, then that the said defendant F. J. as a co-obligor in the said bond may be decreed to answer and make good such deficiency to your orators. [And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] LI. Bill by a joint and separate creditor of certain bankers insol- vents, against the trustees under the deed of trust executed for the benefit of the creditors, praying for an account of the separate estate of one of the insolvents, and to be paid pari passu, with, his other separate creditors, and also to have the deed of trust estab- lished ; and an account taken of all the trust property possessed by the trustees, and of their application thereof; and for a receiver as to the Joint and separate effects. States that the defendants J. S. &c. who had for some time carried on the trade or business of bankers in copartnership together in New Bond-street aforesaid, under the style or firm of Messrs. S. & Co. did in or about the month of become embarrassed in their cir- cumstances and stop payment. That by a certain indenture of bargain and sale and assignment of three parts, bearing date, &c. and duly made and executed by and between, &c. [the defendants the bankers assigned over their estates and property to defendants I. T., ^c. the trustees, for the benefit of their creditors and upon the trusts therein mentioned.'] That by a certain other indenture bearing date on or about , and duly made and executed by and between, &c. [a further assign- ment made to the trustees."] As in and by, &c. 1ha.t plaintiff was a party to and signed the said trust-deed as 'a joint creditor of the said defendants J. S. &c. for the sum of £ and upwards, which was then justly due and owing to plaintiff from them on the balance of his banking account. That he was at the same time a joint and separate creditor of the said defendants J. S. &c. upon the joint and several bonds of the BILLS BY CREDITORS. 161 said J. S. &c. together witt one Gr. T. S. who was at the time of the execution of such bond carrying on trade in co-partnership with the said defendants J. S. &c., conditioned for re-transferring to plaintiff at the time therein mentioned and long since past, the sum of £ of certain stock therein mentioned which plaintiff had lent to the said banking-house, and for payment in the meantime to plaintiff of the dividends which would have accrued due to him on the said stock if the same had not been transferred by him. That the said defendants I. T. &c. took upon themselves the exe- cution of the said trusts and by virtue thereof possessed themselves of all the said trust property, and have by sale thereof and by col- lecting *in the debts due to the said banking-house and otherwise [ *162 ] received moneys to a very large amount. That the said trustees never until the month of last made any dividend of the said trust effects, and then divided only in the pound to the joint creditors of the said banking-house. That they had long before in their hands a much larger sum of the joint property than was necessary to have made a much more con- siderable dividend, and they have also long had and now have in their hands very large sums of money arising from the separate estates and effects of the said defendants J. S. &c. and particularly of the said defendant J. S., but all such moneys being deposited in the banking-house of Messrs. of which the said defendant I. T. is a partner, and the said I. T. being the trustee who has chiefly acted in the said trust, moneys have been permitted to remain in the said banking-house of the said Messrs. with a view to the pri- vate advantage of the said banking-house. That the trust funds in the hands of the said trustees would have been greatly increased, but that the said trustees under pretence of some custom or usage amongst bankers as to short bills paid over to certain country bankers, or permitted them to receive several sums of money amounting in the whole to £ and upwards. That such payments were made with a view to give a preference to such country bankers or some of them, with whom the said trustees or some or one of them were or was in some manner connected. That there are various parts of the said trust effects to the amount of £ and upwards which have not been received, and by reason of the negligence of the said trustees have become in a doubtful state. That it was not required or expected that the creditors of the said defendants J. S. &c. who had security for their debts, should become parties to the said trust indentures ; and plaintiff therefore having in respect of the said joint and several bond of the said J. S. &c. a collateral security by the assignment of certain mortgages on the property of P. B. esq. at, &c. and also of certain legacies payable at the death of a Mr. A., and known in the transactions of the said house of S. and Co. by the term of the Berkshire legacies, was made a party to the said trust indentures only in respect of the sum of £ and upwards due to him on the balance of his banking account and not in respect of the said joint and several bond of the ^ said house. 162 BILLS BY CEEDITOKS. That le&ming that the said defendants I. T. &c. had in their hands very large sums of money arising from the separate estate of the said defendant J. S. unapplied by them to the purpose of their trust, plaintiff as a separate creditor of the said defendant J. S. by virtue of the said joint and separate bond, caused the same to be attached in the hands of the said trustees by a proceeding in the lord mayor's court of London in or about the month of . That plaintiff afterwards withdrew the said attachment in conse- quence of two agreements in writing, one of which was signed by the said defendants T. T. &c. and the other of which was signed by [ *163 ] W. L. as the solicitor of plaintiff, and such agreements were in *the words and figures or to the purport and eflFect following, that is to say : [stating them.^ As in and by, &c. That although the said trustees did in the month of in the said agreement mentioned declare the said trusts to be perfected, and did then make such dividend of in the pound on the joint estate as hereinbefore stated, yet the said trustees have rendered no account to plaintiff of the separate estate of the said defendant J. S. nor have made to him any payment in respect of his said bond, although they have and then had in their hands much more than sufficient to pay plaintiff in full in respect of his said bond, and to pay in full all other, if any, the separate creditors of the said defendant J. S. That he hath by himself and his agents since the said day of repeatedly applied to and requested the said defendants I. T., &c. to come to a just and fair account with him in respect of the separate estate of the said defendant J. S. and to pay to him what is due to him on the said bond pari passu with the other separate creditors of the said defendant J. S. and the plaintiff hath in like manner applied to the said defendants to come to a just and fair account with him and the other creditors who were parties to the said deed of trust for all other the sums of money received by them or either of them under and by virtue of the said trusts. And plaintiff Mvell hoped, &c. But now so it is, &c. ^seeform lY.p. 5.] Pretence of an insufficiency of assets. Charge the contrary, and so it would appear if the said defendants [the trustees'] would set forth as they ought to do a full true and particular account of all and every the said trust estates and effects possessed or received by them or any or either of them, or which but for their wilful default they might have possessed or received, and of their application thereof. Charge that the said defendant J. A. party to the said trust indentures, had before the making thereof been found and declared a bankrupt, and an assignment of his estate and effects had been made to the said defendants E. H. and I. S. together with H. E. of, &c. but at the time of executing the said trust indentures, it was expected that the said commission would be superseded, and it was thereby provided that if the said commission was not superseded within a certain time therein mentioned and long since past, that the said indentures should be considered as void against the said defend- BILLS BY CREDITORS. 163 ant J. A. but should nevertheless be in full force with respect to all other the parties thereto or to such effect. Charge that the said H. E. was soon afterwards removed from being such assignee, and the said defendant I. T. hath been duly chosen assignee in his stead and a proper assignment of the estate and effects of the said defendant J. A. hath been executed unto the said I. T. together with the said defendants B. H. and I. S. Charge that the said defendants E. H. I. S. and I. T. as such assignees or otherwise claim to be interested in the execution of the trusts of the said indentures. Charge that the said defendant J. S. is now a resident at M. in the *East Indies, and the said defendant Gr. P. at the island of M. [ *164 ] or at some other places beyond the seas out of the jurisdiction of this court. All which actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts.^ And that the said defendants I. T., &c. may set forth a full, true Interroga- and particular account of all and every the said trust estate and '°"^s for an effects and all the particulars whereof the same consisted, and the j^^^^ estate quantities, qualities, full, real and true values of all and every such and effects, particulars which have been possessed or received by or come to the aid ^^^ appli- hands of the said defendants [the trustees] or of any other person '^^*^''° thereof. or persons by their or any of their order or for their or any of their use ; and how and in what manner and when and where, and by and to whom, and for how much the same and every part thereof have been sold and disposed of, and what parts thereof and to what value and amount now remain undisposed of and what is become thereof. And that the said defendants may answer the premises. And that Prayer, an account may be taken of the separate estate and effects of the said defendant J. S. which have been possessed and received by the said defendants [the trustees] and also an account of his separate debts, and that plaintiff in respect of his aforesaid bond may be paid from the separate estate of the said defendant J. S. pari passu with his other separate creditors. And that the said deed of trust may also in all other respects be established and carried into execu- tion by and under the direction of this court, and that an account may be taken of all and every other the trust estate and effects which have come to the hands of the said defendants \the trustees] or of any or either of them or any other person or persons by their or any or either of their order or for their or any or either of their use, or which, without their wilful neglect or default, might have been received by them. And that an account may also be taken of the payments and disbursements of the said defendants [the trustees] for and in respect of the matters aforesaid, and that some proper person may be appointed to receive and get in the outstanding joint and separate estate and effects of the said J. S., &c. [And for further relief, see form VIII. p. 6.] May it please, &c. [see form No. l,p. 6.] 164 BILLS BY CREDITORS. LII. Prayer of a hill filed by the joint creditors of bankrupts part- ners in different firms — praying to have an account taken of the sep)arate estate of 0. S. one of the bankrupts, possessed by his assignees, and also an account of his separate debts — also to have an account taken of the debts due from the different firms which had been proved under the commissions of bankrupt issued against them, and that the separate estate of 0. S. after payment of his separate creditors, may be applied towards payment of the part- nership creditors. And that the said confederates may set forth a full true and just [ *165 ] *account and particular of the separate estate and effects of the said Interrogatory C. S. which have been sold or disposed of or possessed or received before prayer, \^j them or either of them, or by any other person or persons by o°fthesepairte ^^^^"^ °'" ^it^ier of their order or for their or either of their use, and estate of c. S. of the produce thei'eof and what part thereof now remains in their hands undisposed of. Prayer. And that the said defendants may answer the premises, and that an account may be taken of the separate estate and effects of the said C. S. which have been possessed and received by the said M. M., &c. \the assignees^ or either and which of them as such assignees as aforesaid, and also an account of the separate debts of the said C. S. which were due and owing from him at the time of the bankruptcies aforesaid ; and that an account may also be taken of the partnership debts which were due and owing from the said C. S. and T. S. at the time of the bankruptcy aforesaid, and which have been proved under the said commission issued against them as aforesaid, and also of the partnership debts which were due and owing from the said 0. S. &c. at the time of their bankruptcy aforesaid, and which have been proved under the said commission issued against them ; and that the separate estate and effects of the said C. S. possessed and re- ceived by the said defendants which shall remain after payment of his separate debts may be applied rateably and proportionably be- tween and in satisfaction of the partnership creditors of the said C. S. and T. S. and the partnership creditors of the said C. S. &c. and that for those purposes all proper directions may be given. [And for further relief.'] LIII. Interrogatories for an account of a testator's personal estate, and the application thereof by the defendant, and also of the tes- tator's debts and what remain unpaid; — also of his moneys out at interest, and on what securities ; — of the interest and dividends accrued due in respect of the personal estate, and of the moneys received by the defendant; — also of the mortgages and incum- brances affecting the testator's estates, and in whom vested; — also for an account of the testator's real estates, the rental thereof, and BILLS BY CREDITORS. 165 of the rents and profits received by the defendant ; — of the rental of a 'particular manor and of the fines set and payable upon the renewal of any leases, and of all other casual profits, and of the moneys received in respect thereof and from whom. And that the said A. D. may either admit assets of the said B. P. "come to his hands or use sufiBcient to answer your orator's aforesaid demands thereon, or may set forth a full true and just inventory and account of all singular the goods chattels personal estate and effects As to the per- whatsoever which the said B. P. was possessed of interested in or ^°°^^ estate, entitled to at the time of his death, and which were not specifically bequeathed by his said will, and all the particulars whereof the same consisted, and the quantities qualities full real and true values of all and every sucfh particulars; and whether all or some *and which of [ *166 ] such particulars have not and when been possessed or received by or come to the hands of him the said A. D. or of some and what person by his order or for his use, and how and in what manner and the appli- and when and where and by and to whom and for how much the cation thereof, same and every or any and what parts or part thereof have or hath been sold or disposed of, and whether any and what parts thereof and to what value and amount now remain undisposed of, and what is become thereof; and also a particular account of all and every the as to debts, debts whatsoever which were justly due and owing from the said B. P. at the time of his death, and to whom and for what and on what secu- rities if any the same were respectively due, and whether any and what sums of money have been since paid in or towards the discharge of all or any and which of the said debts, and when and by whom and what re- and to whom and for what, and whether any and what sums or sum of ™aii unpaid, money do or doth now remain unpaid on account thereof. And that the said defendant may also set forth all and every the As to moneys particulars of the personal estate of the said testator, which were out at interest, out at interest at the time of his death, and on what government ^^^ °? ^^^^ or other security or securities and in whose name or names, and what rate of interest was payable thereon respectively ; and whether the whole or any and what part of all or any and which of such principal sums have or hath been continued on such securities respec- tively during all or any and what part of the time since the death of the said testator, and what sums or sum of money have or hath been received and when and by whom and for whose use and from whom by sale of all or any and what part of such government secu- rities, or in or towards discharge of the principal money due on all or any and which of such private securities, and whether some and what sums or sum of money which were or was part of the personal estate of the said testator at the time of his death, and which arose therefrom, have or hath not been since, and when, placed out at interest in any and what public or private securities or security and in whose name or names and at what rate of interest, and what par- ticular sum or sums in such public securities or security were or was purchased with each of such sums of money, and the dates parties names and all other material contents of all and every such private securities or security ; and whether the whole or any and what part 166 BILLS BY CREDITORS. of all or any and which of such sums hath ever since the same were so respectively laid out, or for any and what times or time afterwards continued on such security or securities respectively, and what sums or sum of money have or hath been received and when and by whom and for whose use and from whom by sale of any and what part of the principal money in all or any and which of such public secu- rities, or in or towards the discharge of the principal money due on all or every and which of such private securities. As to the in- And that the said defendant may also set forth a full true and just ^^dT^V"'^ ^^' ^^^°^^^ °f ^11 ^^^ every sum and sums of money which have from crued due in t'™® ^0 time since the death of the said testator become due from respect of the the interest or dividends of or on or in respect of the personal estate [ *167 ] *of the said testator, or the produce thereof or any part thereof, and personal es- when and on what principal sums or sum, securities or* security, the tate, and of same and every particular thereof become due, and a full true and the moneys ^^gj account of all and every sum or sums of money which hath or the defendant have been received by or by the order or for the use of him the said defendant, for or in respect of the interest or dividends of such personal estate, or the produce thereof or any part thereof,' and when , and from whom, and for the interest or dividends of what principal sums, and on what security and when due, all and every such sums and what part Were respectively received. And that he may particularly set forth was applied to -whether he hath not at any and what time or times applied all or any and what part or parts of the personal estate of the said testator, and of what value, to or for his own use. As to mort- And that the said defendant may also set forth whether there is gages and qj, ^re any or what mortgage or mortgages, term or terms of years, brances. incumbrance or incumbrances upon or affecting the said estates, or any and what part thereof, and when and by whom and to whom, and by what deeds or writings or otherwise and how and for what considerations and for what sums the same was or were made, arid in whom the same is or are now vested and for whose benefit, and what sum or sums of money is or are now due thereon and to whom and where all and every such persons live, and may set forth what is become of the title-deeds of the said estates. And that he may also set forth the names and places of abode of all and every the person and persons in \Yhom any legal or equitable estate right title or interest charge or incumbrance in or to upon the said premises in possession reversion or remainder is vested, and the particulars of such estate right title or interest charge or incumbrance, and how and in what manner the same became so vested in such person or persons, and under what deed or deeds writing or writings. As to the real And that the said defendant may set forth whether the said estates, the testator was not at the time of his death seised or entitled in fee- ' simple of or to some and what real estate, and that he may set forth a full and just rental and particular therfeof, and where the same and every part thereof, is situate, and the yearly value of each particular thereof, and in whose tenure and occupation the same and every part thereof is, and under what yearly or other rent or rents, and whether he the said defendant is not, and hath not been for some and how long time past in possession or receipt of the rents and profits thereof or BILLS TO COMPEL THE DELIVERY OF TITLE-DEEDS. 167 of some and what part thereof, or who by name now are or is, and for how long time have or hath been in possession and receipt of the rents and profits thereof, and by what right or title and for whose use. And that the said confederate may set forth a full, true, and and the reuta particular account of all and every sum and sums of money which ^'^^ profits re- hath and have been received by him or any other person or persons ^gfga^ant ^ by his order, or for his use, for or in respect of the rents and profits of the said estate or any part thereof which have become due since the death of the said testator, and when and by whom and for whose use and from whom and for what rent and of *what part of the said [ *168 ] estates and when due all and every such sums were respectively received. And in particular That the said defendant may set forth a full true and just rental As to the rent- and particular of the said manor and estate of A. and of every part ^^ °f ^ P^^'i- thereof, and in whose tenure or occupation the same and every part the'finerset ' thereof hath been from time to time, and under what yearly and and payable other rent or rents and when due and payable, and also a full true upon the re- and particular account of all fines which during the same period of J^^^^^ of any r b r leases, and aa time were set or arose or became payable, or were agreed to be paid to all casual upon the renewal or renewals of any lease or leases of any estate or other profits, estates part of the said manor or estate of A. and of and from whom, and for the renewal of what lease or leases and of what estates or tene- ments; and also a full true and particular account of all other casual profits which in such time arose or became due or payable for or in respect of such manor and estate, and every or any part thereof, and when and for or in respect of what premises each and every particular arose and became due; and also a full true and particular account of all and every sum and sums of money received by or by the order and the mo- or for the use of them the said defendants respectively or either of peys received them, for or in respect of the ordinary rents fines quit-rents and J° respect other profits of the said manor and estate and every or any part thereof which arose and became due between and , and when and from whom and for what all and every such sums were respectively received. *9. BILLS TO COMPEL THE DELIVERY OF TITLE-DEEDS. [ *169 ] LIV. Bill hy a tenant in tail claiming under an old marriage settle- ment ;{1) — praying to have the possession of certain freehold and copyhold estates delivered up to him, together with all the title- deeds and documents relating thereto. And also to have an ac- count tahen of the rents and profits received hy tJie defendants, (1) If the title to the possession of deeds and writings which the plaintiff prays may be delivered up, depends on the validity of hia title to the property to which they relate, and he is in possession of that property, and the evidence of his title to it is in his own power, or does not depend on the production of such deeds or writings, he must 169 BILLS TO COMPEL who claim under a recovery alleged to have been suffered of the estates in question. The form of the affidavit to he annexed to a hill of this description{2) is added. Humbly complaining showeth unto your lordship your orator S. A. Marriage of of, &c. That W. A. late of, &c. deceased, your orator's late great plaintiffs grandfather, intermarried with one M. W. and being seised in fee fath^er^who' ^i'^'^pl^ °^ Otherwise of an estate of inheritance in possession of and was seised of in a certain freehold cottage messuage or tenement and acres freehold and of arable land meadow and pasture ground with the gardens orchards copyhold es- g^^^j appurtenances thereunto belonging now in the occupation of one T. S., and other freehold messuages lands tenements and here- ditaments situate at, &c. and being also seised in fee to him and his heirs according to the custom of the manor of , of and in a copyhold estate consisting of, &c. now also in the occupation of the Settlement Said T. S. did previously to such his marriage with the said M. W. made by him a,nd in consideration thereof, by indentures of lease and release or his nmrriage. some other deed or deeds instrument or instruments duly executed by him, convey and assure and covenant and agree to surrender to certain trustees therein named, all the said freehold and copyhold estates and premises of him the said W. A. to the use of the said W. A. and M. his wife during their natural lives and the life of the survivor of them, with remainder after the death of such survivor [ *170 J to the first and other sons of the said W. A. and M. his *wife suc- cessively in tail or in tail male, with remainder to the said W. A. in fee. And he the said W. A. did after making such settlement as aforesaid, also surrender the said copyhold estate and premises into the hands of the lord of the said manor, to the uses mentioned and declared in such settlement. As in and by, &;c. And your orator further showeth that after the making of the aforesaid settle- His death, ment of the said freehold and copyhold estates, the said W. A. and leavmg three ^ jjjg y^jfg departed this life leaving or having had three sons, without issue- namely W. A. their eldest son, who died very young and without The third left issue either in the life-time of his father and mother, or soon after a widow and their death ; J. A. their second son, who had one child only, namely, three sons, j_ ^_ ^hg jjgd unmarried and without issue : and T. A. their third had issue the ^'^^ J^^^ orator's grandfather, and who departed this life some years establish his title to the property at law, before he can come into a court of equity for the delivery of the deeds or writings. Ld. Redesdale's Tr. PI. 43. An heir out of possession is entitled to a discovery of deeds necessary to support his legal title, or to have terms put out of his way which may impede his recovery at law, and the bill should praj/ the aid of the court, in order that he may assert his legal title; if immediate relief is prayed by the delivery of the possession of the estate and of the title-deeds, the bill may be demurred to ; see Crows. Tyrrill, 3 Madd. 179, 181 ; Pulteney v. Warren, 6 Ves. 88, 2d edit. ; 2 Madd. Ch. Pr. 225, 230. (2) Where a bill is brought for the discovery of any instrument praying also any reZie/ which might be had at law if the instrument was in the hands of the plaintiff, an affidavit must be annexed to the bill that the instrument is not in his custody or power, and that he knows not where it is, unless it is in the hand; of the defendant ; and the want of it would be a ground of demurrer. But if the relief sought extends merely to the delivering up of the instrument, or is otherwise such as can only be given in a court of equity, such an affidavit is not necessary; Ld. Redesdale's Tr. PI. 112, 113; 1 Madd. Ch. Pr. 26, 7, and 197; Whitchurch v. Golding, 2 P. Wms. 541. THE DELIVERY OF TITLE-DEEDS. 170 since, leaving S. A. his widow and three sons, namely, T. A. W. A. plaintiff, and and E. A. and which last named T. A. who was your orator's father, '^.^otl'er son left two sons, namely, T. his eldest son, who is since dead without „, . ^.„ ' ,. 1 X "^ ii. i I. L t, xi, v, ■ Plaintiff enti- issue, and your orator ; so that your orator has now become the heir- ^e^ ^s heir general and heir in tail of his said great grandfather the said first- general or heir named W. A. and as such is as he is advised and humbly insists, ^° '^'^ "^ ^^^ become entitled under and by virtue of the said indentures or in- faXer.^'^'^" denture of settlement or otherwise to all the freehold and copyhold estates and premises before mentioned, as tenant in tail thereof in possession, with remainder to himself in fee. And your orator well hoped that he should accordingly have been let into the possession thereof, and have been permitted to hold and enjoy the same and receive the rents and profits thereof. But now so it is may it please your lordship that S. A. the widow of the said T. A. your orator's grandfather, and W. A. of, &c. your orator's uncle, com- bining, &c. [see form IV. p. 5.] And the said defendants or one of Defendants in them have or hath got into the possession or receipt of the rents and possession of profits of all the said freehold and copyhold estates and premises, aQ^^^I^**^^ and also have or hath got into their his or her hands custody or deeds. power the said indentures or indenture or other deeds or deed of settlement, and also all the title-deeds muniments and writings sur- renders or admissions belonging or relating to the said freehold and copyhold estates and premises, and to the custody or possession whereof your orator is justly entitled. And they pretend that no Pretence that such settlement as above mentioned, or any other settlement, was "° settlement ever made or agreed to be made by the said W. A. your orator's ^^d^^'^'^ great grandfather, of the said freehold and copyhold estates or any part thereof. Whereas your orator charges the contrary thereof to Ch.irge the be the truth. And that the said confederates or one of them now (contrary, and have or hath in their his or her custody or power the said deeds or ''^'''^f '^^- , -, „ , T 1, 1 • 1 1 n ^ ■ 1 . . lendants have deed oi settlement, and all the title-deeds muniments and writings all the deeds surrenders and admissions belonging and relating to the said free- &c., from hold and copyhold estates and premises, whereby it appears as the ^^"^l^ jt ^P- fact is, that the said estates were settled in strict settlement or plaintiff is en- otherwise in such manner as that your orator is now justly entitled titled as heir thereto as heir general or heir in tail. And your orator further g<'°s''al or in charges, that if the said defendants have not the same now in their custody or power, they or one of them have or hath heard of or *seen the same, and they or one of them have or hath lately had the [ *171 J same, and have or hath burnt or otherwise destroyed the same, or know where the same are or is or what is become thereof, or they or one of them have or hath had in their his or her custody or power some counterpart or copy abstract or extract of the said deeds or deed of settlement or some memorandum thereof, or some document paper or writing wherein the same is recited referred to mentioned or taken notice of, and whereby if the same were produced the truth of the matters hereinbefore charged would appear; and at other Pretence that times they the said confederates pretend that your orator hath no plaintiff has right or title whatsoever to the said freehold and copyhold premises °° *'''^ ^^ or any part thereof, notwithstanding the aforesaid settlement, for covery suffer- that as they pretend the said W. A. your orator's great grandfather ed by his great 171 BILLS TO COMPEL grandfather, was tenant in tail of the said freehold and copyhold estates under ^°^°^b^ v^' *°*^ ^^ virtue of the said settlement, and had a right to suffer and Sso by reason *^id duly Suffer a recovery of the said freehold premises at common of a recovery law, and also suffered a recovery of the said copyhold premises in suffered by his the manor .court according to the custom of the said manor of , unTef which '^^^ afterwards duly made and published his last will and testament defendant S. in writing, and devised the said freehold and copyhold estates to his A. is entitled son T. A. your orator's grandfather in tail ; and that your orator's wfth remai'u- ^'^^^ grandfather duly suffered a recovery of the said premises, and der to her son declared the uses of the said recovery to himself the said T. A. for in fee. his life, remainder to the said S. A. his wife for her life, with remainder to the younger child of the said T. A. and S. his wife, who should be hving at the death of the survivor of them the said T. A. and S. his wife, and to his or her heirs and assigns and that under and by virtue of the uses of such recovery, they the said confederates insist, that she the said S. A. is entitled for her life, and that he the said W. A. will become entitled upon the death of his mother the said S. A. to the fee and inheritance of and in the said freehold Charge the and copyhold estates and premises. Whereas your orator charges contrary, and j^jg contrary of such pretences to be the truth. " And that the said is entUkd.'^ ^- ^- 7°^^^ orator's said late great grandfather never did, nor did the said T. A. your orator's grandfather ever effectually suffer any recovery of the said estates or any part thereof, or if they or either of them ever did suffer a valid recovery of the said estates (which your orator does not admit) they or he never did make any effectual and valid disposition thereof by will or otherwise, and that therefore the said freehold and copyhold estates descended to and are now Pretence that vested in your orator in manner aforesaid; But the said defendant defendant w. ^^Y. A. sometimes pretends and insists that he is entitled to the said uiidCT some^*^ freehold estate and premises under and by virtue of some indentures deed executed of lease and release or other deeds or deed executed by the said T. A. by plaintiff's your orator's father in his life-time, whereby he the said T. A. did father. .^^ ^j^g g^j^j Confederate pretends, convey to him and his heirs the said freehold estate and premises, or that he is in some other manner entitled thereto; but he the said confederate refuses to produce or show to your orator such pretended indentures of lease and release, or other deeds or deed of conveyance from your orator's said father. [ *172 ] Whereas your *orator charges that your orator's said late father Charge the never did execute any indentures of lease and release or other contrary. deeds or deed whereby he conveyed such freehold estate and premises or any part thereof to him the said defendant W. A. or any other Admission person. And at other times the said defendant W. A. admits and f^^t^ '^"w^i *^ frequently declared that your orator is entitled to the fee and that plaintiff inheritance of and in the said freehold and copyhold estates and is entitled, premises under and by virtue of the said indentures or indenture of and a proposal settlement, and all the title-deeds muniments and writings belonging to\fve°uD™i3 ^^^ relating to the said freehold and copyhold estates and premises, right and join and hath proposed to give some sum of money or consideration to in a convey- your Orator if he would give up his right to the said estates and ®?^®*°^P°''' premises, or join in a conveyance thereof to a purchaser. But Refusal by de- nevertheless they refuse to deliver up the said estates "knd the said THE DELIVERY OF TITLE-DEEDS. 172 title-deeds and writings to your orator, or tp suffer him to peruse and fendants to inspect the same, or take copies or abstracts thereof; and having got deliver up the into their custody the said settlement and surrender made by your titie-deed« orator's said great grandfather whereby the legal estate in the said and they premises was vested in and is now outstanding in the trustees named threaten to set therein, and also having got into their hands all the other title-deeds "e^^°^*^dped muniments surrenders and admissions relating to the said freehold to defeat and copyhold estates, they not only refuse to let your orator into plaintiflof his possession of the said estates, or to account with him for the rents remedy at law. and profits thereof received by them respectively, or to deliver unto your orator the said settlement title-deeds muniments surrenders and admissions, but also threaten, that if your orator should bring an ejectment to recover the possession of the said estates, they will set up some old mortgage term or the said settlement made by the said W. A. your orator's said great grandfather or some other concealed deed or instrument, and thereby defeat your orator of his remedy at law. All which actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts.^ And that the said S. A. and W. A. may be decreed to deliver up to Prayer. your orator the possession of the freehold and copyhold estates and premises above-mentioned, free from all incumbrances done by them or either of them, and also the said indentures or indenture or other deeds or deed of settlement executed by the said W. A. your orator's said great-grandfather, and all other title-deeds muniments and writings surrenders and admissions belonging or relating to the said freehold and copyhold estates and premises in the custody or power of them respectively. And that they may be also decreed to come to a just and fair account with your orator for, and to pay to him all the rents and profits of the said freehold and copyhold estates and premises which have been received by them or either of them or any other person or persons by their or either of their order or for their or either of their use, or which without their wilful neglect or default they might have received. [And for further relief, see form VIII. p. 5.3 May it please, &c. [see form No. 1, p. 6.] J. H. *In Chancery. [ *173 ] Between S. A Plaintiff, and S. A. and W. A. Defendants. S. A. the plaintiff in this cause maketh oath and saith, that he Affidavit to this deponent hath not, nor to the best of his knowledge remembrance accompany or belief ever had all or any of the deeds evidences and writings re- "^ * ' • lating to the estate in question in this cause, and which are men- tioned in this deponent's bill exhibited in this honorable court against the said defendants, nor doth this deponent know where the said deeds evidences and writings or any of them now are, unless they be in the custody or power of the said defendants S. A. and W. A. or one of them. 16 173 BILLS TO COMPEL *LV. Bill hy a devisee of a freehold estate against the widow of the testator, and a solicitor who had got the title-deeds into his pos- session,{Z) — praying to have the title-deeds delivered up, and for an injunction to restrain the widow from proceeding in a writ of dower.(4) To, &c. Humbly complaining showeth unto your lordship your oratrix E. C. of, &c. spinster, That W. R. of, &c. gent, deceased being in his life-time and at the time of his decease seised of or interested in or otherwise well entitled unto the hereditaments, hereinafter men- tioned, he the said W. R. when he was of sound mind and under- Willofthe standing duly made and published his last will and testament in testator. writing bearing date on or about •—, and executed and attested in such manner as by law is required for devising real estates, and thereby, (amongst other things) gave and devised unto your oratrix her heirs and assigns forever, all that, &c. [describing the premises^ but his mind was, and he did thereby will and direct that your oratrix her heirs or assigns should out of the said premises pay unto her father W. C. one annuity or clear yearly rent-charge or sum of £10 during his life; and the said testator thereby ap- pointed J. B. the elder sole executor of the said will. As in and by the said will reference being thereunto had will more fully appear. His death. And your oratrix further showeth that the said W. R. the testator departed this life on or about without having revoked or altered his said will, and upon or soon after his decease the said J. B. the elder duly proved the said will in the proper Ecclesiastical Court ; and he the said J. B. the elder (amongst other things) possessed him- self of or got into his custody or power all the title-deeds evidences *and writings belonging or relating to the said premises so devised to your oratrix as aforesaid. And your oratrix further showeth that within some short time afterwards the said J. B. delivered over to or deposited in the hands of or entrusted to the care of Mr. J. L. of an attorney at law, all or some parts of the said title-deeds evidences and writings so belonging or relating to the said devised premises, in order that the same might be delivered by him the said J. L. unto your oratrix as the devisee of the said premises, and which he the said J. L. ought accordingly to have done. And your oratrix hath by herself and her agents as well personally as by letter and otherwise, oftentimes applied to the said J. L. and requested of him to deliver to your oratrix or to her order the said deeds evidences and writings. Bdt now SO IT IS may it please your lord- ship that the said J. L. combining and confederating with the said S. R. the widow of the said testator, and with divers other persons, &c. (3) See Anon. 1 Ves. junior's Rep. 29, 2d cd. in which case the Lord Chancellor refused an application by a devisee to have deeds delivered up, the heir at law not being before the Court; see also Levjis v. Kangle, 2 Ves. sen. 430 ; S. C. .Ambl. 150. (4j That an affidavit is unnecessary in this case, vide antea, u. (2), page 169. Probate by the executor who took pos- session of all the title- deeds. [ *174 J And after- wards deliver- ed them to the defendant J. L. to be deli- vered to plain- tiff. Application to J. L. to de- liver up the deeds. THE DELIVERY OF TITLE-DEEDS. 174 [^see form YI. p. 5,] he the said J. L. refuses to deliver the said title- Refusal. deeds evidences and writings unto your oratrix, pretending that the said deeds evidences and writings were so delivered to him for the benefit of the said confederate S. R. And she the said S. R. Pretence that pretends and gives out that she is entitled to her dower or thirds out the deeds were of the said estate so devised to your oratrix, and she has lately brought ^^^^o^'th'^e' her writ of dower in order to recover her dower or thirds out of the benefit of the said real estate so devised to your orator, and is proceeding in her said widow who writ of dower in order to obtain judgment therein, and to have pos- '^''"^s to be c ^1 • 1 n , '' • . • , . ■, entilled to her session ot one-third part of the said premises so devised to your do\\er, aud oratrix assigned or allotted to her. And the said confederates refuse has brought to produce or to deliver to your oratrix the deeds and writings relating ^s'^""' of to such estate so devised to your oratrix, so that your oratrix is unable B.f.f^^s^^l to to discover whether the said testator was seised of legal estate in fee- produce the simple of and in the estate so devised to your oratrix. And your deeds. oratrix further charges that the said confederate S. R. ought not to Plaintiff un- be permitted to proceed in the said writ of dower until after that she cover whether shall have delivered all deeds evidences and writings in her custody the testator or power relating to the said estate or devised to your oratrix. was seised of And your oratrix further charges that the said testator was seised ^^^^ '^^"^ '^^' of a real estate not exceeding £V20 a-year, including the said estate dj,, ti,^j so devised to your oratrix if the same is a real estate, and that the the widow said testator by his said will devised to the said S. R. his widow in ought not to fee simple a freehold estate of the yearly value of £4:0 or some such ^^j^of^^" ^^^^ yearly value, and also gave to his said widow very considerable lega- until she has cies and annuities, and declared that the devises and bequests so delivered up made to or in favor of her were to be in lieu of her dower, and of ''" deeds, &c. all other demands which she might have on his real and personal ^ ''^^t 'l'^ testa- , , ,r\ AT ■ f ^ 1 ,1,1 -1 , . tor was seised estates. (5) And your oratrix further charges that the said testator ofa lealestate meant and intended that your oratrix should enjoy the estate de- not exceeding vised or bequeathed to her without any claim or demand to be ^^"'•"■year. made thereon by his said widow; and that the said confederate S. R. Thathedevis- '' . . 6Q Jin Gsta.to ought to be restrained from proceeding at law in the said writ of dower worth 40i. ■„ *and ought to be compelled to abide by the devises and bequests r =1=175 i made to her by the said will, and ought not to act contrary or in op- yeartohiswi- position to such will ; And the said confederates ought to be com- dow and other polled to deliver up to your oratrix all the deeds evidences and property, and writings relating to the estates so devised to her as aforesaid. All ^'^ '"'f } . 1.,°. °,,. „, ., «, same to be m which actings and doings 01 the said confederates are contrary to satisfaction of equity and good conscience, and manifestly tend to the injury of her dower. your oratrix. In consideration whereof and forasmuch as your That he in- oratrix is remediless in the premises at the common law by reason l"l^^,^ '','?'"" „,._,„ f , ,. •' T . till should en- of the strict rules thereof, and cannot have a discovery or production joy the estate of the said deeds evidences and writings without the aid and assist- devised to her ance of a court of equity, where matters of this nature are properly w'*o"t 'i"/ cognizable. To the end therefore that, &c. [proceed as informYl. wfdow,'who p. 5, interrogating to the stating and charging partsJ] ought to be And that the said defendants maybe compelled to deliver up unto restrained your oratrix upon oath all deeds evidences writings belonging or re- i^g™ t^ia^!^*^" (5) Vide postea, p. 11*1 and 180. 175 BILL FOR BOWEE. Prayer. lating to the Said lands and premises so given by the said testator's will to your oratrix ; and that, the said defendant S. R. may be re- strained by the injunction of this honorable court from proceeding at law against your oratrix in the said writ of dower, or otherwise And for further see forms No. 1, touching the matters hereinbefore mentioned. relief, see form VIII. p. 5.] May it please, &c and 4, p. 6.] A_. J, Pray subpoena against J. L. and S. R. and injunction against S. JR. 10. BILL FOR DOWER. *LVI. Bill hy a widow against the heir at law of her deceased hus- band and his other children, and also against his executors and devisees in trust; — Praying that she may be declared entitled to her dower, and to an annuity given to her by her husband' s zvill ; — also to have an account taken of his real estates, for a commission to assign to her her dower, and for an account and payment of one-third of the rents accrued due since her husband's death ; — The defendants insisting that the plaintiff is not entitled to her dower and also to the annuity, but ought to elect. {!) Another form of prayer adapted to the same bill is subjoined, in which compensation is prayed for the value of the plaintiff ' s dower out of such part of the estates as ivas directed by the will to be sold in her life-time.^ Humbly complaining showeth unto your lordship your oratrix E. H. [ *176 ] of, ke. the widow and relict of R. H. of, &c. deceased, That *the (I) The rule in equity seems to be, that a widow cannot be put to an election to take under the will of her husband or her dower, except by express declaration, or necessary inference from the inconsistency of her claim with the dispositions of the will. The claim under the will and of dower must be repugnant, and it must be clearly shown that if the widow claim her dower it would disappoint the will. See 2 Madd. Ch. Pr. 57; Chalmers v. Sloril, 2 Ves. & B. 12'2 ; Dickson v. Robinson, Jac. R. 503 ; Miall v. Brain, 4 Madd. 119 ; Butcher v. Kemp, 5 Madd. 61 ; Roberts v. Smith, 1 Sim. & Stu. 513. A widow is prima facie entitled to an account from the time her title accrues ; and it rests upon the defendant to show some special ground to limit the account ; see Oliver v. Richardson, 9 Ves. 222, 2d edit.; in which case the decree directed the account to be taken for the whole period of twelve years from the death of the husband. Where a widow files a bill for the single purpose of having dower assigned her, costs do not follow the suit; but where in bills for dower separate questions of title arise, and are conducted vexatiously ; or where the widow has %vithout any just pre- tence been vexatiously kept out of her dower, she will be allowed her costs. See Madd. Ch. Pr. vol. i. p. 243 ; vol. ii. p. 57, 564; Worgan v. Ryder, 1 Ves. & B. 20. ^ The remedy for dower \s prima facie at law; but where the title is admitted, and there are obstacles in the way of proceeding at law, chancery will entertain a suit for dower, and for mesne profits, since the husband's death ; the concurrent jurisdiction of chancery is exercised especially in cases where partition, discovery, or account is prayed for. Swaine v. Perrine, 5 Johns. C. E. 482 ; Herbert v. Wren, 7 Cranch, 370 ; Kiddall V. Trimble, 1 JId, Ch. De. 143 ; Badgley v. Bruce, 4 Paige, C. B. 98 ; Uarlshorne BILL FOR DOWER. 176 said R. H. was in his life-time and at the time of his death, and also Testator at the time of making his said -will hereinafter stated, seised or en- ^'^'ff'^ °^ ^''^*" titled in fee-simple in possession of or to divers messuages lands and hereditaments situate in R. aforesaid or elsewhere in the county of C. and being so seised or entitled he the said R. H. when of sound mind memory and understanding duly made and published his last His will. will and testament in writing bearing date, &c. which was executed by him and attested and published in such manner as by law is re- quired in devises of real estates, and thereby gave and devised unto his son-in-law T. T. of, &c. and W. W. of, &c. and to the survivor of them and to the heirs executors and administrators of such sur- vivor, all that his messuage, &c. upon trust to sell, &c. and at the decease of his then wife your oratrix, he the said testator gave and devised all other, his messuages, &c. to his said trustees to be sold in manner thereinbefore limited and appointed respecting his other estates ; and the said testator gave and bequeathed unto your ora- trix during her life the annual or yearly sum of £5 to be paid to her out of the rents arising from the said messuages, &c. ; and the said testator gave and bequeathed all the moneys arising from the said sales after payment thereout of his debts funeral expenses and the charges of the probate and execution thereof, and all other his worldly estate not otherwise therein before bequeathed, to be equally divided amongst his children, their executors and administrators share and share alike (except his son R. who was therein mentioned to have been otherwise provided for ;) and the said testator thereby ap- pointed the said T. T. and W. W. to be executors of that his will. As by, &c. That the said testator departed this life on or about without Death of the altering or revoking his said will leaving your oratrix his widow, |estator leav- J. H. of, &c. his eldest son and heir at law, John H. W. H. and M. ^°^ five^ch^iU H. all of, &c. and M. T. the wife of the said T. T. his only other dren. children him surviving; and upon or soon after the said testator's Probate of his death the said T. T. and W. W. duly proved his said will in the pro- '"■'H by the per Ecclesiastical Court and undertook the executorship thereof, and ,^'i^o^ent'ered they or one of them as such devisees in trust as aforesaid entered upon the free- into the possession or receipt of the rents and profits of all the said ^o\d. estates, testator's freehold estates, and have or hath ever since been and now f" „„^;' ,^°"' • • /. 1 1 n 1 r. tinue in the are or is in the possession or receipt of the rents and profits thereof, possession - That under or by virtue of the said will your oratrix is entitled thereof. to an annuity or annual sum of £5 to be paid to her during her life That under out of such part of the said testator's estate as is devised by his tiff Is' entitled V. liarlshorne, 1 Green, Ch. 349 ; Wells t. jBeal, 2 Gill & J. 468. But equity treats dower as strictly a legal right, and is governed by the same rules of right with courts of common law, and will not permit an equity to be interposed to defeat the dower. Where, however, the widow applies for equitable relief in relation to dower, which a court of law cannot grant, slie cannot resist an equitable defence, as against a pur- chaser for a valuable consideration, who is ignorant of her claim of dower. Blain T. Harrison, 11 111. 384. The wife of a mortgagor can enforce her claim of dower of an equity against the mortgagee, and those claiming under him, only by bill in equity. Smith V, Eustis, 1 Greenl. 41. Where a statute requires a demand for dower, the bill must allege it. Wells v. Sprague, 10 Ind. 305. Separate holders of different tracts, aliened by the husband during coverture, may be joined as defendants in one bill. Boy den, v. Lancaster, 2 P. & H. (Va.,) 198. *177 BILIi FOE DOWER. to an annuity "said will and charged with the payment thereof; and that no settle- during her life, ment OF provision in lieu of dower having been made upon or for And no settle- ^]r^Q benefit of your oratrix upon or before her marriage with the been nTade^in ^^^'^ testator, your oratrix upon the death of her said late husband lieu of dower, also became and now is entitled, over and beside the said annuity, plaintiff is also to dower in or out of all the said testator's freehold estates of which dmver'^out of ^® ^^^ seised in fee at the time of his death, or at any time during the freehold their coverture, and particularly those which are by his said will estates. devised and directed to be sold as aforesaid, but no sum of money hath been paid or satisfied to your oratrix either on account of the said annuity or of her said dower ; and your oratrix being entitled in manner aforesaid, hath frequently by herself and her agents Applications, applied in a friendly manner to the said T. T. and W. W. and re- quested them to account with her and pay to her the arrears of her said annuity, and also the amount of one-thirS part of the net in- come proceeds rents and profits of the said freehold estates accrued due since the said testator's decease, and received by them or either of them ; and to let your oratrix into the possession of one-third part of the rents and profits of the said freehold estates and pre- mises ; and to assign and set out for your oratrix a full third part of the said freehold estates as and for her dower therein ; and your oratrix well hoped that such her reasonable requests would have been complied with, as in justice and equity they ought. But now SO Pretence that IT IS, &c. [see form TV. p. 5,] the said T. T. and W. W. sometimes the executors pretend that they have not received any rents and profits of the said have not re- ^.^^y estates late of the said testator or any part thereof, or if they rents, or that have received any of such rents, that they have accounted with your they have ac- oratrix for and paid to her a full third part thereof in lieu and satis- counted for a faction of her dower, the contrary of which they at other times thereof!"^ admit to be true. But they' nevertheless refuse to set forth a rental But admitting ^^'^ particular of the said real estates, and also to set forth a full the contrary and just account of all the rents and profits of all the said real they refuse to estates accrued due since the said testator's decease, as they'^oughf, rental^ofthe *° '^'^ > ^^'^ ^^^J ^^^ ^^^ ^^^^ Other confederates who claim to bo real estates, interested in the said freehold estates under the said testator's will, andtoaccount sometimes pretend(2) that according to the true meaning and con- Th ' ^'^fl"'^! struction of the said will and the intention of the said testator other Tefend- t^ie^'ein, your oratrix is not entitled to both the said annuity of £5 ants also pro- and her dower in and out of the said testator's freehold estates ; and tend, that that she ought to make her election either to take her dower only, or elTitM to the *° accept the said annuity of £5 in lieu and bar thereof. Whereas annuity and your oratrix charges the contrary of such pretences, and that ac- her dower, cording to the true meaning and proper construction of thp said will but ought to g^jj(j the intention of the said testator apparent therein, your oratrix „ D- th '® entitled as well to her dower in the said freehold estates of her contrarv. Said late husband by common law, as to the said annuity of £5 by That accord- virtue of the said will ; for your oratrix charges that it is not ex- ing to the true pressed in the said will, nor can or ought to be inferred or implied [ *178 ] *from any thing contained therein ; that the said testator meant to (2) Vide antea, p. 174; et postea, p. 189. BILL FOR DOWER. 178 exclude your oratrix from her right to dower out of his freehold construction estates, or that she should take the said annuity of £5 in lieu of or "''*.'^^.'^i}'' satisfaction for such dower ; and as evidence that the said testator ^^^l^ \g \^f^' could not so mean or intend, your ora.trix charges that such annuity annuity, and is considerably less than the annual value of your oratrix's dower in also to her tlie said freehold estates. And your oratrix charges that her said °^^''' claims are by no means repugnant to or inconsistent with, nor will j^^j^j is^of"" in any manner disappoint any gifts or bequests contained in the said much less will; and therefore your oratrix humbly submits that she ought not ™iue than her to be put to her election either to take her said dower only, or to "^o^^"";! accept the said annuity of £5 given to her by the said will in lieu gj^j'^g' ^l^ j.e- thereof ; 'but the said confederates insist on the contrary, and under pugnanttothe such or the like pretences as aforesaid or some others equally unjust will. and unreasonable, the said T. T. and W. W. refuse to comply with But tlie de- your oratrix's aforesaid requests; and your oratrix not knowing the fugetoc^oml particular description of the said freehold estates and premises, and with plaintiff's being unable to discover the same by reason of the title-deeds and requests. writings relating thereto being in the possession of the said defend- The title- ants, is unable to proceed with eflFect at law to recover her dower out defe'da%°^'° of the said estates; and the said T. T. and W. W. also threaten and possession, intend in case your oratrix shall proceed at law for this purpose, plaintiff un- they will set up some term or other estate or interest in the said ^^^^ '° P'°" estates by virtue of some deeds or deed in their custody or possession ^ „ , ,"'' which will effectually defeat your oratrix's proceedings at law ; and threaten to set sometimes the said J. H. (the heir) alleges that the said R. H. his up an out- late father never made any such or the like will as aforesaid, or if standmgterm. he did, the same was not duly executed and attested so as to pass The heir at real estates, or that he was not of sound and disposing mind memory ^^^ wni"and and understanding at the time of making the same ; and that therefore pretends that on his death all his said freehold estates descended to him the said *e freehold J. H. as his heir at law ; And that he is accordingly seised thereof in sge^i^gij ^'^ fee-simple, not subject to the payment of any such annuity to your him. oratrix. Whereas your oratrix charges the contrary of such pretences charge the to be the truth. All which actings, &c. [^seeform VI. ^. 5, interro- contrary. gating to the stating and charging parts.'] And that the said T. T. and W. W. may set forth a full true and Interrog.itory just rental and particular of all the freehold estates messuages lands foradiscovery and hereditaments whatsoever, which the said testator was seised of °^*^ 'f^'^" or entitled unto in possession in his life-time and at the time of his and the rental death, and where the same and each and every part thereof are thereof; situate, and in whose custody possession or power the same have been during each and every part of the time since the death of the said testator, and at what yearly or other rents or rent; And that And of the they the said last-named defendants may also set forth a full and moneys re- particular account of all and every the sums and sum of money ^^'J^j of°he'^" which have or hath been received by the order or for the use of rents since the them or either and which of them, on account of the rents and testator's profits of the said freehold estates messuages or tenements and pre- ®^' • mises which have accrued due since the said testator's death ; And *when and from whom and for what rent and of what part of the [ *179 j said premises 'and when due the same were respectively received. 179 BILL FOR DOWBE. Prayer. And that the aforesaid will of the said testator R. H. may he established ; and that your oratrix may be declared by the decree of this honorable court to be entitled as well to her dower out of the freehold estates or estate and premises of which her said late husband died seised as to the said annuity of £5 given to her by his said will; and that the said annuity may be ordered to be paid to- her accord- ingly, and an account taken of what is due to her in that behalf. And that an account may be taken of the real estates or estate of which the said testator was seised at the time of his death; and that your oratrix may be let into the possession and receipt of the rents and profits of one-third part thereof, and may be declared to be entitled to hold and enjoy the same for her life as and for her dower. And (if necessary) that a commission may issue for the purpose of assigning and setting out such dower or third part of the said real estates or estate, so that your oratrix may hold and enjoy the same in severalty as and for her dower. And that an account may be taken of the rents and profits of the said freehold or real estates received by or by the order or for the use of the said T. T. and W. W. which have accrued due since your oratrix's late husband's decease, and that they may pay unto your oratrix a full third part thereof, and whatsoever may hereafter become due from them in that behalf. [^And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] Another form of prayer adapted to the above hill, praying compensa- tion for the value of the plaintiff's dower out of such part of the estates as was directed to be sold in her life time : — Prayer. And that your oratrix may be declared by the decree of this honorable court to be entitled as well to her dower out of the freehold estates of which her said late husband died seised, or a full and adequate compensation in lieu thereof, as to the said annuity of .£5 given to her by his said will; and that the said annuity may be ordered to be paid to her accordingly, and an account taken of what is due to her in that behalf. And that a commission may issue out of this honorable court for the purpose of assigning and setting out a competent part of the above-mentioned estates (except as to the part thereof by the said will directed to be sold in your oratrix's life-time) by metes and bounds, so that your oratrix may hold and enjoy the same in severalty as and for her dower; and that a com- pensation may be made to your oratrix for the value of her dower out of the said premises directed to be sold before your oratrix's decease; and that the amount of such compensation may be ascer- tained in such manner as this honorable court shall think proper. And that an account may be taken of the rents and profits of the said freehold or real estates received by or by the order or for the use of the said T. T. and W. W. which have accrued due since your oratrix's late husband's decease ; and that they may pay unto your [ *180 J oratrix a full third part thereof, and whatsoever *may hereafter become due from them in that behalf. \_And for further relief. '\ BILL FOR DOWER. 180 LVII. Charges in a bill brought by a widow for her dower — the defendants alleging that a sum due on the testator s bond, which they had paid to her, was intended to be discharged by the bequest of a legacy and an annuity to her by his will ; that Ms debts and legacies were not charged on his real estate; and that an annuity given to her by his will was intended to be in full satisfaction of her dower and that she ought to elect with regard thereto.{2>) And your oratrix further showeth that in the year the said That defend- defendants T. P. and W. P. paid to your oratrix the said sum of ants paid the £> secured by the said bond, but as to the said legacy and her Jhe°bond° lud said annuity they under various pretences decline to pay the same, pretend that and pretend that the said sum of ^ in or by the said bond or the same was obligation made payable to your oratrix was by the said testator "1'™''^'! *« ^^ intended to be satisfied and discharged by the said legacy of £, a legacy and bequeathed to her by the said will as well as by the said annuity of an annuity £ per annum therein devised to your oratrix and that the said bequeathed to defendants having satisfied and paid such sum of <£ , your oratrix is entitled to no further benefit under the said will. Whereas your Charge that oratrix charges and humbly insists that she is entitled to both the st"" is entitled said legacy and the said annuity of ■£ . And the said defendants *° ^°'^' insist that your oratrix is not entitled to dower out of the real estates insist that she of the said testator, but that the said annuity of £ per annum is not entitled given and bequeathed to your oratrix was by the said testator intended to dower, but to go in satisfaction of your oratrix's dower or thirds at common law tv^beoueathed of the whole real estate of the said testator, and that your oratrix to her was in- ought to be put to her election whether she will abide by the said tended to be annuity of £ per annum, or insist on her dower of the said J° satisfaction ..^•'j 1.,, 1 1 1 1 •,,!, • thereof, and testator s real estate, but that she ought not to be permitted to enjoy that she ought the said annuity and her said dower at one and the same time, to be put to Whereas your oratrix insists that the said annuity of £ per ^^'^ election. annum is by no means an equivalent in point of value to your oratrix's Charge that_ dower of all the real estates of the said testator, and that the said not equivalent annuity is merely and only charged on that part of the real estate to her dower, of the said testator which by his will is devised and given to the ^^^ '^ only said defendant T. P. And the said defendants insist that supposing estate^devised that the said testator did make such will as stated in the said to T. P. bill, yet the said testator did not thereby charge his real estate with Defendants the payment of his debts and legacies, but merely and only with the insist that the said two annuities. Whereas your oratrix charges that the said |fot^c']^arge his testator being the absolute proprietor of his real and personal estates, real estate and having by his said will directed and ordered that all the *legal with the pay- debts legacies and funeral expenses should be in the first place [ *181 ] paid and discharged, amounts to a charge of all his said debts upon ment of his his real estates ; and in case it should appear that the personal estate debts and le- of the said testator is not suSicient to satisfy his debts and legacies, on?rwith two which your oratrix in no sort admits, then and in that case the real annuities. (3J Vide antea, p. 174 and 177. 181 BILLS OF FORECLOSURE. Charge that estate of the said testator, or so much thereof as shall be sufficient, th^ "^h^d' b° ought to be sold and disposed of, and that out of the money to arise &c^ should be ^^^^ Such Sale your oratrix's legacy of £ ought to be paid, and paid in the • that such estate ought to be sold and disposed of subject to the said first place annuity of £ per annum, as well as to her dower or thirds of the chTrgfon'the ^^^^ ^^^^^^ ^^ ^^^ ^'^^^ testator, and the said defendant T. P. ought real estate ; to pay to your oratrix the arrears as well as the future growing pay-^ and that in ments of the Said annuity of £ per annum, charged on the real sonai estate is ^^^^^e SO devised to him; and the said defendant ought likewise to insufficient, be compelled to pay to your oratrix her dower or thirds at common the real estate law out of and in respect of all the real estates of the said testator; °"stt ^°}'^ and that your oratrix's title as well to her dower as to the said an- te the^anmiity Duity of £ ■ per annum ought to be established and declared by and the plain- the decree of this honorable court. tiffs dower. That T. P. ought to pay the arrears and growing payments of ' ^ 3jLLS OF FORECLOSirRE.(l)» the annuity. *> ' That the de- fendants °!^?iit to pay *LVIII. Bill hy a mortgagee for a term of years for a foreclosure, dower and"^ against the surviving mortgagor, entitled as surviving devisee to that her right the equity of redemption, as to one moiety for his own benefit, and thereto, and ^g ^q ^^g other in trust for himself and another individual (also a to the annuity, j j: j ^\ i • j j.1. m ■ ought to be dejendant) as devisees under another will. established. In Chancery. To, &c. Humbly complaining showeth unto your lordship your orator A. H. of, &c. esq. That J. S. C. now deceased, S. M. C. of, &c. (one (1) A person entitled to a part only of a sum of money secured on mortgage, cannot file a bill for a foreclosure, without making the other persons entitled to the residue, parties ; Lowe y. Morgan, 1 Bro. Oh. n. a, 368 ; Palmer v. The Earl of Carlisle, 1 Sim. & Stu. 423, S. P., in which case the bill was dismissed with costs as against the mort- gagor; and see Montgomery v. The Marquis of Bath, 3 Tes. 560, 2d edit. Where an advowson is mortgaged, the mortgagee, instead of bringing a bill of foreclosure, should pray a sale of the advowson; Mackenzie v. Robinson, 3 Atk. 559. Annuitants prior to a mortgage need not be made parties to a bill by the mort- gagee against the mortgagor for a sale, but the estate must be sold subject to the annuities ; had they been subsequent to the mortgage they would have been pi-oper, although not necessary parties, Delabere v. Norwood, 3 Swanst. 144, n. A bill of foreclosure may be filed against the assignees of a bankrupt mortgagor before the execution of the bargain and sale to them ; Bainbridge v. Pinhorn, Buck's Rep. 135 ; Lloyd y. ^Lander, 5 Madd. 290 ; if a bankrupt mortgagor is made a party, he may demur ; Lloyd v. Lander. The executor of the mortgagee is a necessary party to a bill of foreclosure by the heir of the mortgagee; Freak v. Horsley, 2 Freem. 180; Nels. 93, 1 Oh. Ca. 51 ; but the personal representative of the mortgagor is not a necessary party to a bill of fore- closure of freehold hereditaments, whether the mortgage was in fee or by demise ; Fell V. Brown, 2 Bro. Ch. Ga. 278; Bradshaw v. Outram, 13 Ves. 234; and note (A) " The bill need not aver title in the mortgagor ; Shed v. Oarjield, 5 Verm. 39 ; and a decree of foreclosure will not be made against a defendant who claims under a title BILLS OF FORECLOSURE. *of the defendants hereto) and the Rev. P. K. now deceased, being or alleging themselves to be seised of and entitled to the heredita- 3 P. Wms. 333 ; if one mortgage is made of freehold and leasehold estates and the mortgagor dies, his iieir and executor must be made parties ; Harr. Ch. Pr. 30. For cases of bills of foreclosure filed against infants, see Booth v. Rich, 1 Vern. 295 ; Goodier v. Ashion, 18 Tes. 83, 2d edit.; Monday v. Mondey, 1 Ves. & Bea. 223, and 1 Madd. Ch. Pr. 532. With regard to making all incumbrancers parties, see Bishop of Winchester r. Beaver, 3 Ves. 314, 5, 2d edit, and the cases there referred to. Incumbrancers be- come such after a bill filed or after an abatement are not necessary parties, because they take subject to the effect of the suit: Bishop of Winchester v. Paine, 11 Ves. 197. A judgment creditor prior to a mortgage, need not make the subsequent mortgagee a party in order to postpone him, as the judgment has a legal priority; Shepherd v. Gwinnett, 3 Swanst. 151, n. Where A. made a mortgage to B. for a terra of years for securing 350^, and B. assigned the term to C. for securing 300Z., on a bill of foreclosure by 0. against A., B. or his representative was held to be a necessary party ; Hobart v. Abbot, 2 P. Wms. 643 ; and see also Korrish v. Marshall, 5 Madd. 4Y8, 9. To a bill of foreclosure against the principal mortgagor, the mortgagor of another estate as a collateral security is a necessary party ; Stokes v. Clendon, 3 Swanst. 150, 11.; S. C. 2 Bro. Ch. Ca. 275, n. A mortgagee can never make a mortgagor, or his assignee if he become bankrupt, account for the rents for the time past, even after notice given to the tenants to pay the rents to the mortgagee ; Exparte Wilson, 2 Ves. & Bea. 253 : and see also Gresley V. Adderley, 1 Swanst. 579 ; Moss v. GalUmore, Dougl. 266. A mortgagee may pray a sale of the mortgaged premises in the first instance, where the same person is the heir and also personal representative of the mortgagor, and the personal estate is clearly deficient; Daniel v. Skipwith, 2 Bro. Ch. Ca. 155. older than that of the mortgagor, and adverse to it. Lyman v. Little, 15 Verm. 576. It is held in Connecticut, that a mortgagor who has conveyed to another his equity of redemption, and has no longer any interest in the subject, should not be made a party to the bill ; -Swift v. Edson, 5 Conn. 531 ; although he is held in New Jersey to be a proper though not a necessary party. Chester v. King, 1 Green, Ch. 405 ; Vree- land V. Louhat, lb. 104. If the mortgagee be deceased, the bill should be brought in the name of the execator or administrator, and not of the heirs. Roa.th v. Smith, 5 Conn. 133. If the mortgagee has assigned absolutely, and divested himself of all interest, he need not be made a party; Whitney v. McKenney, 7 Johns. C. R. 144; hut in Mclver v. Cherry, 8 Humph. 713, it is held, that the heirs of a deceased mort- gagor and mortgagee must both be made parties. See also, Osborne v. Tunis, I Dutch. 633. All incumbrancers at the time of filing the bill should be made parties, or they will not be bound by the decree. Haines v. Beach, 3 Johns. C. R. 459 ; Ens- worth V. Lambert, 4 Id. 605 ; Cullum v. Batre, 2 Ala. 415 ; Finley v. Bank of United States, 11 Wheat. ZQi; McCally. lar-i^, 1 Stockton, 358. In New York, it seems that the plaintiff must state in^his bill that no proceedings at law have been had to recover the debt, or if there have been such proceedings, he must state the nature of them, and that they have been discontinued, or that the remedy at law has been exhausted ; Pattison v. Powers, 4 Paige, C. R. 549 ; 9 Id. 137 ; 8 Id. 648 ; yet in Hughes v. Ed- wards, 9 Wheat. 489, it is said that a mortgagee may pursue his legal remedy on the mortgage, and at the same time file his bill to foreclose the equity of redemption. In Ohio the bill may be sustained, notwithstanding the statutory remedy by scire facias. 1 Ham. 235. In Indiana, a statute requires that the bill should state whether any and what proceedings have been had at law for the recovery of the debt ; and the omission of such statement is fatnl. McMullen v. Furness, 1 Smith, 73. A bill has been held to be demurrable which does not offer to pay superior incumbrances. Fenno v. Sayre, 3 Ala. 458. A suit to foreclose a mortgage is in rem; White v. Wil- liams, 2 Green. Ch.3V6; and a decree in personam cannot be rendered, unless inde- pendently of the mortgage, the court has jurisdiction over the demand. Crutchfield V. Coke, 6 J. J. Marsh. 89. The bill need not allege an indebtedness for which it was given; and if alleged, it need not be proved. Hay v. Perkins, 2 Sandf. Ch. R. 359; see also, Collins v. Carlile, 13 111. 254. It is proper to remark, by way of caution to the pleader, that much diversity exists in the cases with regard to foreclosure suits, since, in most of the States, there are statutes upon the subject, and a course of decisions peculiar to the State. *182 182 BILLS OF FOEECLOSURE. Application for a loan of £3000, which sum plaintiff advanced. [ *183 ] Indenture of mortgage by demise for securing the same. ments and premises hereinafter particularly described, In trust for the benefit of the said J. S. C. and S. M. C. and having occasion to borrow the sum of £5500 applied to and requested your orator to lend them the sum of £3000 part of such sum of £5500 on the security hereinafter mentioned, and that your orator complied with such request and did accordingly lend and advance the *sum of £3000 to the said J. S. C, S. M. C. and P. K. And_ that thereupon and in order to secure the re-payment thereof with inter- est, the said J. S. C, S. M. C. and P. K. duly executed a certain indenture of demise or mortgage bearing date , and made or expressed to be made between the said J. S. C, S. M. C. and P. K. of the one part, and your orator of the other part. And that thereby after reciting as therein mentioned, It was witnessed that for and in consideration of the said sum of £3000 to the said J. S. C, S. M. C. and P. K. paid by your orator, the receipt whereof they did thereby acknowledge. They the said J. S. C, S. M. C. and P. K. and each of them did grant bargain sell and demise unto your orator his executors administrators and assigns, All that capital messuage, &c. together with all and every the appurtenances, &c. To hold the said messuages or dwelling-houses lands hereditaments and premises with their appurtenances unto your orator his executors adminis- trators and assigns from the day next before the day of the date thereof, for the term of 1000 years from thence next ensuing, with- out impeachment of waste, but subject to a proviso for redemption upon payment by the said J. S. C, S. M. C. and P. K. their heirs executors or administrators unto your orator his executors adminis- trators or assigns of the sum of £3000 with interest after the rate of £5 per cent, per annum at or upon the day of then next ensuing. As in and by the said indenture reference being thereunto had will more fully appear. And your orator further Where a plaintiff prayed relief to which he was not entitled, viz. a sale under a trust, instead of redemption or foreclosure as a mortgagee, the court refused the re- lief asked at the bar under the prayer of general relief; but leave was afterwards granted to amend the bill by praying the proper relief and adding parties, and intro- ducing the necessary statement of facts; Palk v. Lord Clinton, 12 Ves. 48, 57, 62. To a bill for the execution of a trust for sale by way of mortgage, the personal re- presentative of the mortgagor is a necessary party ; Christophus v. Sparke, 2 Jac. & Wall£. 229 ; M'-Donough v. Shewbridge, 2 Ball & B. 563. If a mortgagee with a power of sale files a bill to foreclose, he will not on motion be directed to sell; 1 Madd. Ch. Pr. 532. Where a bill is filed to foreclose a mortgage of an estate tail, the court does not compel the tenant in tail specifically to suffer a recovery, but decrees him to malie a good title to the mortgagee; Sutton v. Stone, 2 Aik. 101 ; and a covenant by a tenant in tail mortgagor for further assurance, may be laid hold of as a ground to enforce a recovery, or, to compel his assignees, if he become bankrupt, to execute a conveyance of the fee to the mortgagee, if they refuse to redeem ; Tourle v. Rand, 2 Bro. 652 ; /'ye V. Daubuz, 3 Bro. 595. On a bill of foreclosure it appeared that though the mortgage money was in fact advanced by the plaintiff, the mortgage (which was by demise) was made to a trustee for him ; the trustee was held to be a necessary party ; Wood^. Williams, 4 Madd. 186. All persons having an interest in the equity of redemption must be made parties to a bill of foreclosure ; Calverley v. Phelps, 6 Madd. 229: in this case the equity of re- demption had been conveyed to trustees upon trust to sell and pay off incumbrances and divide the surplus amongst certain persons specified, with a power to the trustees to give receipts to purchasers ; the cestuis que trust were held to be necessary parties to the bill filed by a mortgagee for a foreclosure. BILLS OF FORECLOSURE. 183 showeth unto your lordship that the said sum of £3000 was not Mortgage mo- paid to your orator at the time for that purpose limited by the said °^ V°'. ^^^^ indenture for the payment of the same; and that thereby the estate umited™^ of your orator in the said mortgaged premises became absolute at law. And your orator further showeth unto your lordship that in 'oeath of one or about the year the said J. S. C. died, having first made his of the mort- will bearing date , whereby he devised all his freehold leasehold S'''S°''s- and copyhold estates, including his interest in the said mortgaged '^ ^' ' premises, to the said S. M. C. and P. K. and to Gr. R. of and their heirs. And your orator further showeth unto your lordship Death of auo- that the said P. K. had no beneficial interest in the said mortgaged therofthe premises ; and that he died sometime since leaving the said S. M. 0. "ho'hadTo him surviving. And that the said S. M. 0. alone is now entitled to beneficial in- the equity of redemption of the said mortgaged premises in trust as terest. to one moiety thereof for his own use and benefit, and in trust as to the other moiety for the use and benefit of himself and the said Gr. R. as devisees of the said J. S. C. And your orator further Mortgage mo- showeth that the said sum of <£8000 together with a considerable '"'^7 ^'^^ '°*^- arrear of interest accrued due thereon is now due to your orator on '^'^^ ^ ' "^' the security of the said premises. And that your orator hath fre- Applications quently and in a friendly manner applied to the said S. M. C. and *« defendant, requested him to pay the same or to release his equity of redemption of and in the said mortgaged premises. And your orator well hoped that such his just and reasonable requests would have been complied with as injustice and equity they ought to have been. But now so IV. IT IS may it please your lordship that the said S. M. C. combining with the said G. R. and contriving how to injure your orator irrthe ^premises refuses so to do, although your orator charges that your r *184 "1 orator did as aforesaid well and truly advance and pay the said sum Refusal of £3000 to the said J. S. C, S. M. C. and P. K., and that for secur- charge that ing the re-payment thereof with interest, the said J. S. C, S. M. C. piaintifl' paid and P. K. July made and executed to your orator such indenture as *'"' money, is hereinbefore mentioned; and that the whole of the said sum of Thatthemort- £3000 together with a large arrear of interest accrued due thereon, wa^%ulv"exe^ is now justly due and owing to your orator on the security aforesaid, cuted. And your orator charges that the mortgaged premises are a very Thatthemort- scanty security for the re-payment of what is due and owing- to your S«ge money i ii, -i i-u f A J * 1 ..1, i. iU and mterest orator on the security thereof. And your orator charges that the ^re still due said Gr. R. is and claims to be interested in the said mortgaged pre- That the es- mises or some part thereof, and to be entitled to redeem the same tateisascanty but he and also the said S. M. C. refuses so to do. And your orator security. charges that the said defendants ought either to pay what is due to Jhat the other your orator as aforesaid, or otherwise to release their equity of re- r claims an demption in the said premises, but they refuse so to do. All which interest in the actings, &c. [see form VI. p. 5, interrogating to the statements and Property. the latter part of the charging part.'] And that the said defendant may answer the premises. And that Prayer. an account may be taken by and under the direction and decree of this honorable court of what is due and owing to your orator for principal money and interest on the security of the said mortgaged premises. And that the said defendants may be decreed to pay 184 BILLS OP FOEECLOSURB. unto your orator what shall appear to be justly due and owing to him on the taking of the aforesaid account together with his costs of this suit by a short day to be appointed by this court for that pur- pose, your orator being ready and willing and hereby offering on being paid his said principal money and interest and costs at such ap- pointed time to re-convey the said mortgaged premises unto the said defendants or unto either of them as this honorable court shall direct. And in default of such payment that the said defendants and all per- sons claiming under them may be absolutely barred and foreclosed of and from all right and equity of redemption in and to the said mortgaged premises and every part thereof for the residue of the said term of 1000 years. And may deliver up to your orator all and every the deeds evidences and writings in their or either of their possession, custody or power relating to the said mortgaged premises and every part thereof. \^And for further relief see form VIII. p. 5.] May it please, &c. [see form iVb. 1, jj. 6.] Pray subposna against iS. M. 0. and a. B. [ *185 ] *LIX. Bill by a mortgagee in fee against the mortgagor and a trustee of an outstanding term, for a foreclosure, and to have the term assigned to a trustee for the plaintiff, and to attend the inheritance. To, &c. -') Humbly complaining showeth unto your lord§hip your orator R. S. of, &c.. That in or about the year , P. J. of, &c. (one of the defendants hereinafter named) being or pretending to be seised in fee or of some other good and sufiScient estate of inheritance of and in the manor, &c. &c. hereinafter mentioned, and having occasion Application for the loan of a sum of money, applied to your orator to lend him for a loan. ^jjg g^jjj pf £ ^^^ jjj oj.(jer to secure the repayment of the same with interest, proposed to mortgage to your orator the said manor, &c. which he affirmed to your orator were free from all prior incumbrances save a term of years in some part of the same premises which as the said P. J. informed your orator was then vested in L. M. of, &c. the other defendant hereinafter named, in trust for him the said P. J. his heirs and assigns, and to be disposed of and assigned as he or they should direct. And your orator further showeth unto your lordship that your orator did comply with the said requests of the said P. J. and did accordingly lend him the said -sum of £ , and for securing the re-payment thereof with interest as aforesaid, Indentures of by indentures of lease and release bearing date respectively, &c. and lease and re- t^^^^q between the Said P. J. and A. his wife of the one part, and mortgage, your orator and one A. B. of, &c. since deceased, of the other part, the said P. J. for and in consideration, &c. [setting forth the mortgage Mortgage mo- deed-l As in and by, &c. And your orator further showeth that ney not paid, the Said Sum of <£ or any part thereof was not paid to your orator loan. BILLS OF FORECLOSURE. 185 or any person on his behalf according to the said proviso in the said indenture of release contained, at the time therein mentioned. And your orator further showeth unto your lordship that the said P. J. having a further occasion for money, did some time in or about, &c. again apply to your orator to lend him the further sum of £ , Application and in order to secure the re-payment of the same with interest, [°^ ^ further oifered to charge the said mortgaged premises therewith, which your orator consented to, and accordingly did advance lend and pay to the said P. J. the said sum of £ , and for securing the re-payment thereof with interest as aforesaid, by indorsement made upon the Indenture of back of said indenture of release bearing date, &c. [stating the fuf'her indenture of further charge and bond as a further security therein ° ^^^^' recited.'] As in and by the same, &;c. And your orator further showeth unto your lordship that the said sum of £ or any part thereof hath not been paid to your orator, neither was the said sum of £ or any part thereof paid to your orator according to the condition in the said in part recited bond at the time therein men- tioned, but the said two several sums pi £ and £ are now due and owing to your orator, together with a great arrearof *interest I" *186 1 thereon respectively ; and the said A. B. being deceased, the estate Mortgage mo- and interest in the said mortgaged premises is now become absolute neys and inte- in your orator and his heirs. And your orator well hoped that the ''^st still due. said P. J. would either have paid your orator the said several sums of £ and £ , and the interest thereof respectively, or would have suffered your orator to have peaceably and quietly held and enjoyed the said premises, and for that purpose your orator hath frequently applied to the said P. J. and requested him to pay the Applications said several suras of £ and £ , and the interest due for the to defendant. same respectively, or else peaceably to deliver up possession to your orator, of the said mortgaged premises together with all deeds evi- dences writings muniments court rolls rent rolls and minutes of court relating to or concerning the same, and to release all his right title and equity of redemption of in and to the same hereditaments and premises to your orator and his heirs, the said P. J. well knowing as your orator charges the truth to be, that the said premises are a very scanty security for the principal and interest now due to your orator thereon. And your orator well hoped that the said P. J. would have complied with such your orator's reasonable requests, as in justice and equity he ought to have done. But now so it is, &c. [see form lY. p. 5.] And the said defendant P. J. pretends that the Pretence of a said premises were mortgaged by him to the said L. M. for the said P'''°'' ™°^'- term of years for securing to him some very considerable sum fe^^m of'^years of money, and that at the time such mortgage was made to your orator as aforesaid, he the said P. J. had only the equity of redemption of the same. Whereas your orator charges that no money was due Charge that to the said L. M. on the security of such term, but that the said L. M. ^^'^ aiie.^ed is seised of the said term of years and his name made use of ™jj°y |''f|.^ygjgg merely as a trustee, and that the said term is now vested in him in of the term, trust for your orator and his heirs to attend the inheritance of the said premises, nevertheless the said L. M. refuses to let your orator bring an ejectment in his name for recovery of the premises comprised 186 BILLS OF FORECLOSURE. Pretence of prior judg- ments, &c. [ *187 ] Interrogatory for a discovery as to the claim on the part of the alleged mortgagee : and as to in- cumbrances, &c. Prayer. in the said years term ; And at other times the said P. J. pre- tends that he hath confessed judgments statutes and recognizances to several persons for several considerable sums of money, and made several other grants conveyances and secret incumbrances which will aiFect the said premises prior to your orator's title to the same, but he refuses to discover the same, or to whom he hath so sold mortgaged or incumbered the premises as aforesaid or the respective considerations thereof, or the persons to whom he hath confessed such judgments statutes or recognizances and for what sums and for what considerations, so that your orator cannot proceed at law for the recovery of the said mortgaged premises, the said P. J. threatening in case your orator pro- ceeds at law to set up the said incumbrances and the said trust term of years in the said L. M. all which they pretend are prior to your orator's said mortgage. Whereas your orator charges that such convey- ances mortgages or other incumbrances (if any such there be) except the said trust term, are not prior to your orator's said mortgage, or if any of them are prior to your orator's said mortgage, the same are voluntary and fraudulent, and made without any consideration really *and truly paid; and such judgments statutes and recognizances were not for the payment of any just debt, but without any consideration and voluntary and contrived on purpose to defraud the just creditors of the said P. J. All which actings, &c. [see form VI. p. 5, interro- gating to the stating and charging parts.^ And that the said L. M. may set forth what right or title he hath or claimeth of and in the said premises, or any and what part thereof; and whether he is not a trustee for your orator, and if not why not ; and whether he does not and ~why refuse to let your orator bring an ejectment in his name in order to recover possession of the said premises; and that the said defendant P. J. may set forth what incumbrances there are upon the said mortgaged premises, and when and by whom the same were charged or incumbered, and who claim the same respectively, and may set forth the nature and kinds thereof, and whether the same are by absolute sale mortgage statute judgment recognizance or how otherwise, and the dates tenor and short contents of such several in- cumbrances and of the deeds records or other instruments or writings relating to or concerning the same ; and may set forth the respective considerations thereof and when where and in whose presence such considerations were respectively paid and whether in specie, bills or how otherwise; and whether the said incumbrances or any and which of them are now unpaid and unsatisfied, and how much money is now due on the same respectively. And that an account may be taken by and under the direction and decree of this honorable court, of what is due and owing to your orator for principal and interest moneys upon or by virtue of his said recited mortgaged securities ; and that the said P. J. may be decreed to pay and satisfy to your orator what shall appear to be due and owing to him on the taking of the aforesaid account, by a short day to be appointed by this honorable court, together with your orator's costs. And in default thereof that the said P. J. and all persons claiming under him may be absolutely barred and foreclosed of and from all e(j[uity of redemption or claim in and to the said BILLS OF I'OEECLOSUEE. 187 mortgaged premises and every part thereof, and may deliver over to your orator all deeds charters evidences and writings whatsoever in his custody possession or power relating to or concerning the said manor, &c. and every part thereof; And that the said term of years may be declared to be in trust for your orator and his heirs, and may be assigned to a trustee in trust for him and them, and to attend the inheritance of the said hereditaments and premises. \^And for further j-elief see, form VIII. p. 5.] May it please, &c. [see form M. 1, p. 6.] *LX. Bill of foreclosure filed hy trustees and executors who had [ *188 ] lent fart of their testator's moneys pursuant to the trusts of his will upon a mortgage in fee of certain estates, {a bond also given as a collateral security) — against] the mortgagor, and hy amend- ment against a subsequent mortgagee. {Two terms of years had been also assigned to a trustee for the plaintiffs for better securing their mortgage money.) To, &c. Humbly complaining show unto your lordship your orators J. V. of, &c. and R. N. of, &c. That W. N. late of, &c. deceased, by his Will of w. N. last will and testament in writing bearing date , and duly exe- cuted and attested in such a manner as by law is required for devis- ing real estates, (after directing his just debts, funeral expenses, and legacies, the charges of proving his will, and other incidental expenses to be paid, and giving and bequeathing several specific and pecuniary legacies as therein mentioned,) gave devised and be- queathed unto your orators their heirs executors administrators and assigns respectively all his real estates and also all the residue of his personal estate and effects whatsoever. Upon trust to sell and convert into money in the manner therein mentioned, and to put and place or lay out and invest the moneys to accrue and be produced therefrom in their names, or in the name of the survivor of them, or of the executors or administrators of such survivor on real or government securities at interest, and from time to time to call in the same or any part thereof, and put and place or lay out and invest the same again upon securities of the like nature ; And upon trust from time to time to pay the dividends interest and clear yearly pro- ceeds thereof, by equal half-yearly payments, unto the said testator's wife S. M. and her assigns for her life ; and from and immediately after her decease, Upon further trust to divide and pay the said moneys so directed to be put and placed or laid out and invested as aforesaid, and the dividends interest and proceeds then due for the same unto and amongst the several persons and in the manner in the said will mentioned; And the said testator appointed your orators executors of his said will. And your orators further show unto your lordship that the said testator departed this life some time in the His death. month of May in the year without revoking or altering his said 17 188 BILLS OF rORECLOSURE. Probate by will ; And that your orators as such executors thereof as aforesaid the plaintiffs ^^ly proved the same will in the Prerogative Court of the Archbishop the executors. ^^ Canterbury on the day of the said month of . As by the said will or the probate thereof to which your orators crave leave to Application refer, when produced will appear. And your orators further show for a loan. mj^^ j^y^j. lordship that J. E. of, &c. aforesaid yeoman having oc- casion for a sum of money, applied to your orators to advance and Advancement lend him the sum of £2000 on the security of the freehold heredita- of the money, ments hereinafter mentioned. And your orators further show unto your lordship, that they did accordingly comply with the request [ *189 ] *of the said J. B. and did on the day of by virtue or in pursuance of the trusts so reposed in them by the said will of the said W. N. deceased as aforesaid, lend him the sum of £2000 part of the moneys of the said testator then remaining in the hands of your orators as such trustees and executors as aforesaid ; and there- upon and in order to secure the repayment of the said sum of £2000 Indenture of with interest, by indentures of lease and of appointment and release lease and re- bearing date respectively , the indenture of appointment and lease and release being made or expressed to be made between the said J. E. mor gage. ^^ ^.^^ g^^^ ^^^^^^ ^^ ^ ^^^ ^^^ yeoman of the second part, and your orators of the third part, for the considerations in the said indenture of appointment and release mentioned, All of the messuage or tene- ment, &c. &c. were limited and appointed granted released conveyed and assured unto and to the use of your orators their heirs and assigns forever. Subject to the proviso or agreement therein contained for redemption and reconveyance of the said .hereditaments and premises on payment by the said J. E. his heirs executors administrators ap- pointees or assigns unto the said J. V. and R. N. their executors administrators or assigns at or in the then dwelling-house of him the sarid J. V. situate at B. aforesaid, of the full sum of £2000 together with interest for the same after the rate of 51. per cent, per annum Indenture of on the day of then next ensuing. And your orators further assignment of show unto your lordship that by a certain indenture of assignment, two terms of ^jgaring. date the said day of , and made between B. P. therein described of, &c. of the first part, the said J. E. of the second part, your orators of the third part, and J. B. of afore- said, gent, (therein described as a trustee nominated by and on the part of your orators) of the fourth part, for the considerations therein mentioned, a certain term of 1000 years theretofore demised or created of and in the said messuage or tenement lands and pre- mises comprised in the aforesaid indenture of mortgage and therein and hereinbefore mentioned or some part thereof by an indenture of demise bearing date , and expressed to be made between J. F. gent, of the one part, and G. S. gent of the other part, and also a certain other term of 1000 years heretofore limited or created of and in the said messuage or tenement lands and premises by a cer- tain indenture bearing date on or about , and expressed to be made between the said J. F. and M. his wife of the one part and W. P. gent, and M. P. his eldest daughter of the other part, and by a fine duly levied in or as of Michaelmas Term in the same year in pursuance of the covenant in the same indenture in that behalf con- BILLS OP FORECLOSURE. 189 tained, were assigned unto the said J. B. his executors administrators and assigns, In trust in the first place for your orators their heirs and assigns, for the further and better securing to them the repayment of the said sum of 2000Z. and interest on the day and in the manner and according to the true intent and meaning of the proviso in the said indenture of appointment and release and mortgage, bearing even date therewith for that purpose contained, And after payment thereof. In trust for tlje said J. B. his heirs, appointees and assigns, and to attend the inheritance of the same premises in manner therein mentioned. And your orators further show unto your *lordship r *190 "| that for the further and better securing to your orators the repay- ^g]^^ asafur- ment of the said sum of ,£2000 and interest as aforesaid, the said J. ther security. E. by a certain bond or obligation in writing under his hand and seal bearing date , became bound for himself his heirs executors and administrators unto your orators their executors administrators and assigns in the penal sum of £4000, conditioned to be void on payment by the said J. E. his heirs, executors and administrators unto your orators their executors administrators and assigns of the sum of £2000, together with interest for the same at the time and in the manner in the said indenture of appointment and release of even date therewith expressed and declared. As by the said inden- tures respectively and bond to which your orators crave leave to refer, when produced will appear. And your orators further show Mortgage mo- unto your lordship that the said sum of £2000 or any part thereof ney not paid, was not paid to your orators or either of them, or to any other per- ^''" "^"^^ son on his or their account at the time for that purpose mentioned in the said indenture of appointment and release, or at any other time; and the same now remains due and owing to your orators, to- gether with a considerable arrcar of interest thereon ; and your orators being desirous of having the same paid, and the said freehold hereditaments and premises being a scanty security for the same, your orators have frequently by themselves and their agents applied Applications. to the said J. E. and in a friendly manner requested him to pay the said principal money and interest ; and your orators hoped that the said J. E. would have complied with such requests, or would have released or relinquished his equity of redemption in the said mortgaged premises, and delivered up possession thereof to your orators as in justice and equity he ought to have done. But now so IT IS may it please your lordship that the said J. E. combining and confederating with J. H. of, &c.,(2) and with divers persons &c. [see form IV. ^. 5,] hath refused to pay the said principal money and interest to your orators, and he at times pretends that he has Pretence of made some other mortgage affecting the said premises, and that V""'^ incum- the same is prior to the said securities made to your orators, and at other times he pretends that he has made or executed some con- veyance of the said premises, in trust for his creditors, and that he has confessed judgments statutes and recognizances to several per- sons in several considerable sums of money, and made several other (2) Upon the coming in of the other defendant's answer it was discovered that a mortgage subsequent in point of date to the plaintiffs' had been made to J. H. and the bill was therefore amended by making him a party defendant. 190 BILLS OF FORECLOSURE. Charge that such are vol- untary and fraudalent. [ *191 J Claim ou the part of the subsequent mortgagee. Interrogatory as to prior in- cumbrances ; And also as to the claim by the subse- quent mort- gagee. Prayer. conveyances charges and incumbrances of or upon the said pre- mises prior to the said securities made to your orators, but refuses to discover the same, or to or in favor of whom he hath so con- veyed mortgaged or incumbered the said premises as aforesaid, or the _respective considerations thereof, or the person or persons to whom he hath confessed such judgments statutes and recognizances, or for what sum or sums and for what considerations. Whereas your orators charge that such conveyances mortgages and other in- cumbrances, if any such there be, are not prior to the said securi- ties made to your orators, or if any of them are prior to the said *securities made to your orators (which your orators do not admit) the same are voluntary and fraudulent, and made without any considera- tion really and bona fide paid for the same, and such judgments statutes and recognizances were not for the payment of any just debts, but without any consideration, and voluntarily confessed and contrived on purpose to defraud your orators of their principal money and interest due on their said mortgage securities ; And if any of such conveyances mortgages and other incumbrances are subsequent to your orators' said mortgage securities, your orators are entitled to have a discovery thereof, and the names and descriptions of the respective parties thereto, that your orators may bring such parties before this honorable court. And the said J. H. claims to have some estate right or interest in to or out of the said mortgaged pre- mises by virtue of some mortgage or other security made to him by the said J. E. subsequently to your orators' said security, but the nature and particulars thereof he refuses to discover. All which actings doings and pretences of the said J. E. J. H. and the other confederates, &c. [seeformYI.p. 5, interrogating to the stating and charging parts/] And if the said J. E. shall pretend or allege that there is or are any conveyances mortgages or incumbrances of or on the said pre- mises or any part or parts thereof either prior or subsequently to your orators' said mortgage securities, that the said J. E. may set forth the dates and parties' names and descriptions, and short material contents of such conveyances mortgages or incumbrances respectively, and when made and for what considerations ; And if the said J. H. shall claim to have any estate right or interest in to or out of the said mortgage premises, then that he may set forth and discover the nature and particulars thereof. And that an account may be taken by and under the direction and decree of this honorable court of what is due and owing to your orators for principal and interest on their said mortgage securities; and that the said defendants or one of them may be decreed to pay to your orators what shall appear to be due on the taking of such account as aforesaid, together with your orators' costs of this suit by a short day to be appointed for that purpose by this honorable court ; and in default of such payment that the said defendants and all per- sons claiming from through or under them or either of them may be forever barred, and foreclosed of and from all right and equity of redemption of in and to the said mortgaged premises, and every part thereof, and may deliver over to your orators all deeds evidences and BILLS OF FORECLOSURE. 191 writings whatsoeTer relating to the said mortgaged premises in their or either of their custody or power. \^And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] Pray subpoena against J. E. and J. IL **LXI. Bill of foreclosure of a copyhold estate ly the hair and [ *192 ] executors of deceased mortgagees against the devisee of the deceased mortgagor ; conditional surrenders had been made by the mort- gagor, but the mortgagees, or the plaintiff, their heir at law, had not been admitted.{d) In Chancery. To, &c. Humbly complaining show unto your lordship yoUF orator E. B. of, &c. the heir and only acting executor of the last will and testa- ment of E. B. late of, &c. esq. his late father, deceased, who was the heir and surviving executor named in the last will and testament of J. B. late of, &c. gent, his father, deceased, and your orators and oratrix A. B. C. D. and E. F. the other executors named in the last will and testament of the said E. B. deceased, That E. W. late Application of, &c. widow, deceased, being or pretending to be seised to her /n'e \° and her heirs of or well entitled to the several copyhold messuages of £300. or tenements with their appurtenances hereinafter mentioned, and having occasion to borrow the sum of X300, she in or about the month of August applied to the said J. B. deceased, to lend her the same on security of the said copyhold messuage or tenement, and the said J. B. on the application of the said E. W. accordingly advanced and lent her the sum of i6300, and thereupon and in order to secure the repayment thereof with interest, the said E. W. Conditional did on the day of the said month of August duly sur- ^adTof^cony- render into the hands of the lord of the manor of H. in the county holdpremises, of M. All that messuage, &c. subject nevertheless to a proviso for for securing making void the surrender on payment by the said E. W. her heirs ^'^f ^"'?® ^'''* inxGrcst executors or administrators, unto the said J. B. his executors ad- ministrators or assigns of the full eum of i£300, with lawful in- terest for the same on the day of August then next. As by (3) A mortgagee of a eopybold estate -vrho is not in possession, may before ad- mittance bring a bill of foreclosure, and after a decree may proceed in ejectment for possession of tbe mortgaged premises j Sutton v. Stone, 2 Atk. ICll. A court of equity will supply the want of a surrender of a copyhold estate in favor of a purchaser for a, valuable consideration, against the party who onght to have made the surrender, or his heir. A mortgagee therefore, who is considered as a pur- chaser ^ro tanto, may have a surrender supplied, and even against a subsequent pur- chaser if he had notice of the mortgage ; Jennings v. Moore, 2 Vern. 609 ; 1 Madd. Ch. Pr. 67. It was formerly the practice in the cases of a mortgagor covenanting to sur- render a copyhold estate to a mortgagee, and dying before making such surrender, for the mortgagee first to file a bill against the heir or devisee of the mortgagor to supply the want of the surrender, and then to file his bill of foreclosure; but the modern practice appears to be in such a case to file one bill for both purposes. 192 BILLS OF FOBBCLOSUEB. the said surrender, whicli was duly presented and enrolled, and to which your orators and oratrix crave leave to refer when pro- "^ duced to this honorable court will appear. And your orators and Death of J. B. oratrix further show unto your lordship that the said J. B. departed this life on or about the day of having first duly made His will, ap- and published his last will and testament in writing bearing date on pointing E.B. qj. about the 1st day of January , and appointed his sons the executors who *said E. B. and V. J. B. late of, &c. deceased, executors thereof; proved the and they soon after his decease duly proved the said will in the Pre- same. rogative Court of the Archbishop of Canterbury, and took upon [ *193 J themselves the burthen of the execution thereof; and the said Death of V. J. V. J. B. afterwards departed this life in the life-time of the said E. ^- B. his brother. And your orators and oratrix further show unto The 300Z. and j. Jordship that the said E. W. did not pay the said principal sum paid by E. W. of £300 and the interest thereof at the time mentioned in the said surrender or afterwards, and the said principal sum of £300 remain- ing unpaid, and the said E. W. having occasion to borrow the further Application sum of £50, did in or about the' month of May apply to the bj her to E.B. Said E. B. deceased, and request him to advance and lend her the for a loan of gm^ of £50 on the security of the said copyhold messuages or tene- ^° ■ ments, and the said E. B. consented thereto, and a^ccordingly did, on or about the 11th day of the said month of May advance and lend such sum of £50 to the said E. W. and for securing the re-payment thereof with interest, the said E. W. did on or about the said 11th Conditional day of May , duly surrender all the said copyhold messuages surrender of or tenements and premises with the appurtenances, To the use of the said pre-^ ^j-^g g^^j^j g_ ■g_ deceased his heirs and assigns, subject to a proviso E. B. for se- ^or making void the same surrender upon payment by the said E. W. curing the her heirs executors or administrators unto the said E. B. deceased same. of the Sum of £50 with lawful interest for the same on the 11th day of May then next. As by the said surrender which was duly presented and enrolled, and to which your orators and oratrix crave leave to refer when produced will more fully appear. And your Death of E.B. orators and oratrix further show unto your lordship that the said E. B. departed this life on or about the day of having in his His will, ap- life-time duly made and published his last will and testament in wri- pointing ting bearing date , and thereby appointed your orators and cuto'rs— one^' o^*ti"ix executors thereof, and after his death your orator E. B. alone only proved duly proved his said will, and undertook the executorship thereof, the same. power being reserved to your orators and oratrix A. B. C. D. and Death of E. J]. F. to prove the same. As by the probate of the said will when frao-or° "^"^ ' Produced will appear. And your orators and oratrix further show Her will de- ^^^° 7^^^ lordship that the said E. W. departed this life several years vising the said ago, and she in her life-time duly made and published her last will estate to the and testament in writing, and thereby devised unto R. M. of, &c. who"eiitered ^^'^ ^^^ heirs all the said copyhold messuages or tenements, and all upon and is her estate and interest therein; As by the said will if produced no win posses- would appear; and the said R. M. upon her death by virtue of her same" ' ^ ^^^^ ^^^^ entered into possession and receipt of the rents and profits of the said copyhold messuages or tenements, and has ever since been and now is in the possession or receipts of the rents and profits BILLS OE EORECLOSaRE. 198 thereof; and the said principal sums of 300Z. and 501. remaining Agreement by unpaid with an arrear of interest, the said R. M. by a memorandum '""" *^'^' ^^^ in writing under his hand bearing date on or about the 2d day of to^ther^With January , agreed with your orator E. B. that the said two sums the arrears of of 300Z. and 60Z. together with the sum of 1, the amount of the interest, arrears of interest then due should carry interest from the 16th day jnterest'^at'^si of August at the rate of 51. per cent, per annum, As by such per cent. memorandums when produced *will appear and your orators and [ *194 ] oratrix further show unto your lordship that the said several sums The moneys of 300Z., 501., and 1, still remain due and owing upon the said still due with security with an arrear of interest for the same ; and your orator ?" arrear of E. B. as acting executor as aforesaid, being desirous of having the same paid, and the said copyhold messuages being a scanty security for the same, your said orator hath frequently and in a friendly manner applied to the said R. M. requesting him to pay the said Applications principal money and interest. And your orators and oratrix well '° *'i® 'i'^*^'^''- hoped that the said R. M. would have complied with such requests ^jent or would have relinquished his equity of redemption in the said mortgaged premises, as injustice and equity he ought to have done. But now so it is, &c. [^seeform IV. p. 5.] He the said defendant Refusal. hath refused to pay the said principal money and interest to your orator E. B. and he refuses to release his equity of redemption to your orator E. B. as heir to the said B. B. and J. B. deceased. And in case your said orator shall take or recover possession of the said coyyhold premises he intends at some future time to call on him for a redemption of the said premises, and an account of the rents and profits thereof, and he at times pretends that there are some other Pretence that mortgages or incumbrances which affect the said premises, and that there are other the same or some of them are prior to the said securities made to the ^^"g" hT're- said J. B. and E. B. deceased, but he refuses to discover the partic- fuses to dis- ulars thereof, or in whom the same are vested. All which actings, &c. cover. [see form VI. p. 5, interrogating to the stating and charging parts.'] And that an account may be taken by and under the direction Prayer. and decree of this honorable court of what is due and owing to the estates of the said J. B. and E. B. deceased for principal and inter- est on the said securities. And, that the said defendant may be de- creed to pay to your orator E. B. as acting executor as aforesaid, what shall appear to be due on the taking of such account as afore- said together with your orator's and oratrix's costs of this suit by a short day to be appointed for that purpose by this honorable court. And in (|efault of such payment, that the said defendant and all persons claiming under him may be henceforth debarred and fore- closed of all right and equity of redemption to and in the said copy- hold premises. And that your orators and oratrix may have such further and other relief in the premises as to your lordship shall seem meet and the nature of this case may require. May it please, &c. \_see form JVo. 1, p. 6.] Prai/ subpoena against R. M. *195 BILLS OF FORECLOSURE. *LXII. Bill of foreclosure hy a mortgagee ;— praying for an account of what is due for principal and interest ; and that he may be at liberty to redeem a term created by a will for raising portions for testator's daughters, if any thing should appear to be due under the trusts thereof. The trustees of the term had brought an ejectment and recovered possession of great part of the mortgaged premises ; and an injunction is therefore prayed to restrain further proceed- ings at law. The mortgagor having taken the benefit of the insol- vent act, his assignees are made parties. States that F. R. was seised in fee simple of premises subject only to the payment of ^6 the portions of his sisters M. R. and A. R. by virtue of the will of their father. States a mortgage in fee to H. B. States the payment of £ to H. B. and £ to F. R. by the plaintiff, and the conveyance from H. B. and F. R. to the plain- tiff by way of mortgage. States that F. W. of, &c. and S. J. late of, &c. intending to harass and perplex plaintiff, did in Easter Term last cause an action of ejectment to be brought in his Majesty's Court of K. B. for the reco- very of the possession of the said mortgaged premises, and did cause a declaration therein to be delivered to R. M. tenant in possession of the greater part of the said premises, to which ejectment plaintiff by rule of said Court of K. B. did cause herself to be made defen- dant in the room of the casual ejector, and the said cause coming on to be tried at the last assizes in and for the county of S., the jury sworn for that purpose did find a verdict for the plaintiff, the said F. W. and S. J. the lessors of the plaintiff having proved a trust term of years vested in them in most part of the said mort- gaged premises under the will of I. R. deceased, late father of the said F. R. States the trusts of the term. States that the personalty and a part of the premises in posses- sion of the trustees were sufficient Xi> answer the trust of the term, and that they were actually answered. States applications by plaintiff to F. R. to pay the mortgage-mo- ney and interest to plaintiff, or else to deliver possession to her of the said mortgaged premises together with all deeds, &c. relating to the same, and to release all his right and equity of redemption to the same premises to plaintiff and her heirs ; Also applications by plain- tiff to the said F. W. and to the said S. J. in his life-time to assign to a trustee for plaintiff, the said trust term of years limited to them by the will of the said I. R. as aforesaid they well knowing that the trusts of the said term were fully discharged. Pretence that the premises were in mortgage to some other per- sons for securing some considerable sum of money, and at the time the mortgage was made to the said H. B. the said F. R. had only the equity of redemption of the same. Charge that no mortgage was made of the premises by the said BILLS OP FOEECLOSUEB. 195- F. R. or any other person prior to the said mortgage to the said H. B. or if any such there is that the same is voluntary and fraudulent, *and made without any consideration, but that the said F. R. was [ *196 ] seised and possessed of the legal estate of and in the said premises at the time of the execution of the said mortgage to the said H. B. as aforesaid. Pretence that F. R. hath confessed iudgments, &c. \vide ante p. 190.] J S > L F Claim by F. W. as the surviving trustee that he is entitled to hold the premises so devised to them the said F. W. and S. J. by the will of the said I. R. as aforesaid for the remainder of the term of years, sometimes pretending there are several debts of the said I. R. undischarged, but the said F. W. refuses to discover the amount of the said pretended unsatisfied debts of the said I. R. or to whom or on what account they are due or how the same are secured. CJiarge that all the debts of the said I. R. are paid. Pretence by the said F. W. that the fortunes of the said daughters of the said I. R. the testator directed to be raised by his will as aforesaid or some considerable part thereof yet remain unsatisfied and a charge upon the said premises. Charge that the personal estate of the said testator I. R. and the premises directed by his said will to be sold for the payment of his debts were more than sufficient for that purpose ; or if the same fall short of payment thereof the said F. W. and S. J. paid the same out of the rents and profits of the said trust premises which came to their hands to a very considerable amount, and were more than suffi- cient not only to make good any deficiency in the fund appropriated for payment of the said testator's debts, but also to have discharged the fortunes directed to have been raised for the said testator's three daughters, and that if the said F. W. and S. J. did not apply such sums of money as they received by the rents and profits of the said trust premises in discharge of the said testator's debts and other, the trusts in them reposed, but disposed of the same or any part thereof to or for any other purposes, that the said F. W. the surviving trustee ought to answer such sums as have been paid out of the rents aforesaid out of his own proper effects. Pretence by F. W. that although the trusts of the said term of years are fully performed and discharged, yet he is entitled to hold the said premises for the remainder of the said term of years for his own use and benefit and that he will not assign the same ; and the said M. R. pretends that she is entitled to some very considerable sum of money from the said premises by virtue of the will of her father the said I. R, not only on account of her own for- tune and the interest thereof, but also on account of D. R. deceased, late one of the daughters of the said I. R., alleging that the said D. R. did by some deed or writing or by her last will appoint the payment of the sum of 1, being the amount of her portion or fortune to or in favor of her the said M. R. ; and the said M. R. insists that the said F. W., {the surviving trustee) is entitled to hold the said premises until such time as her said demands thereon are fully satisfied and paid. 196 BILLS OF FORECLOSURE. Charge that the said sum of 1, hereinhefore mentioned to have been borrowed by the said F. R. from the said H. B. was bor- [ *197 ] *rowed at the request and with the privity of the said M. R. to dis- charge the fortunes so given to her and the said D. R. deceased by their said father I. R., and that the said sum of £ was accord- ingly paid by the said P. R. to the said M. R. and D. R., and that the said A. R. is now in a nunnery in France. Charge that the fortune of the said D. R. was paid to her in her life-time and that the said premises are well and sufficiently exone- i-ated therefrom, and that the said F. R. having contracted many considerable debts and having declared himself insolvent and been discharged from the King's Bench prison under the late Act of Par- liament for the relief of insolvent debtors, and the said I. T., &c. having lately obtained an assignment of the estate and effects of him the said F. R. from F. L. the clerk of the peace for the county of S. under the late insolvent Act, set up some claims upon the said estates in right of the said F. R. and particularly allege that the said F. R. was only tenant in tail of the said estates. Charge that the said F. R. suffered a recovery of the said estates, and declared the uses thereof to himself in fee. Pretence that the demands of the said M. R. on the said premises are just and reasonable, and that the said F. R. did not borrow the said sum of 1, from the said H. B. to discharge the fortunes of the said M. R. and D. R. or that if it were borrowed for that purpose he the said F. R. neglected to pay the same. Charge that the said indenture of mortgage to the said H. B. ex- pressly mentions that the said sum of 1, was borrowed by the said F. R. in order to pay the fortunes of his sisters the said M. R. and D. R., and that the said indenture of mortgage expressly de- clares that the said F. R. had paid his sisters their fortunes ; and the said F. R. well knows that the said sum of 1, was paid aecord- ingly, and that he the said F. R. did take some discharge or acquit- tance for the same from the said M. R. and D. R. which he has either destroyed, or now conceals in order to defraud his just creditors and to encourage and support the fraudulent designs of his sister the said M. R. That defendant F. M. admits that he has paid his said sister the said A. R. her fortune, though he refuses to produce any release for the same, but pretends that the said fortune of the said D. R. de- ceased is unsatisfied and a charge upon the premises. Charge that the said D. R. did some years ago receive her said fortune and did not make any appointment thereof by will or other- wise to or in favor of the said M. R. or if she did make the same such appointment is null and void, she the said D. R. having at the time of her death no just claim on the said premises. Pretence on the part of the said W. H. that the said premises in mortgage to plaintiff, are also in mortgage to him with other the estates of the said F. R. for securing the re-payment of a very large sum of money lent with interest, but the said W. H. refuses to dis- cover the date or contents of such mortgage, sometimes pretending that it is prior to plaintiff's title. BILLS OF FOEECLOSUBB. 197 Charge that if the said W. H. had any mortgage or incumbrance on the said premises with other estates of the said F. R., that the *same is made for the payment of a much larger sum of money than [ *198 ] was truly lent and advanced to the said F. R., and that the same is subsequent to plaintiff's title and ought to be postponed thereto; and the said W. H. &c. pretend that they are entitled to the equity of redemption of and to the said mortgaged premises in trust for the creditors of the said F. R. under and by virtue of some conveyance thereof to them made by the said F. R. but refuse to discover the date and contents thereof, and the said W. H. &c. refuse either to pay unto plaintiff the principal and interest due to her upon and by virtue of the said before mentioned mortgage, or to release to plaintiff and her heirs the equity of redemption of and in the said mortgaged premises, without the direction and indemnity of the court. That an account may be taken of what is due to plaintiff upon her aforesaid security in respect of the said sum of 1, and interest. And in case any thing shall appear to be due under the trusts of the said term of years, t'hui.t plaintiff mz.y be at liberty to redeem the same ; and that what plaintiff shall pay in redemption of the said term of years with subsequent interest computed thereon may be added to what shall be found due to her upon her said secu- rity; and that the said several defendants may be decreed by a short day to be limited by this honorable court, to pay to plaintiff the whole of what shall appear to be due to her as aforesaid, or in default thereof that they may be barred and absolutely foreclosed of and from all right and equity of redemption in and to the said mortgaged premises, and may deliver up to plaintiff all deeds and writings in their custody or power belonging or relating to the said mortgaged premises ; and that the said F. W. may be restrained by the injunction of this honorable court from proceeding further at law to recover possession of the said mortgaged premises ; and that a re- ceiver may be appointed by this honorable court of the rents of the said mortgaged premises. [And for further relief. '\ M. **LXIII. Prayer of a bill hy mortgagees in possession of the title- [ *199 ] deeds against the assignees of the mortgagor bankrupt, and a mortgagee who claimed a priority in point of date,(4.) (but the circumstances stated in the bill tending strongly to show that his mortgage had been antedated, the charges relative thereto are intro- duced; — the plaintiff's mortgage was made by indentures of lease and appointment and release, with aw assignment of an outstand- ing term to a trustee) — The prayer is for an account and foreclo- sure against the second mortgagee, then for a further account, and (4) It is quite settled that there must be either fraud, concealment, or such §ross negligence as may be presumed to have originated in a fraudulent intention, to postpone a mortgagee who omits to take the title-deeds ; Tourle v. Rand, 2 Bro. Ch. Ca. 649, n. (1), 5th edition, by Belt, and the cases there referred to; and see also 1 Madd. Ch. Pr. 323, 4. 199 BILLS OF FORECLOSURE. for a sale of the property/ before the commissioners (acting under the commission of bankrupt against the mortgagor ;) — and in case the moneys to arise therefrom should not be sufficient to pay plain- tiff's mortgage-money, interest, and costs, then for liberty to prove the remainder of the mortgage-money, and interest against the separate estate of the bankrupt. An opinion given by an eminent counsel previously to the bill being drawn, is subjoined. Claim by ano- And the Right Honorable D. Earl of E. alleges that he is entitled tiaer mortga- to a charge upon the said freehold and leasehold messuages cottages prfo^r'toVain- °'" *^^®™^°ts lands hereditaments and premises so mortgaged to your tiff's security, orators as aforesaid, for a sum of £2000 and interest under and by virtue of certain indentures of lease and release and assignment made to him thereof by the said R. W. P. prior in point of time to the aforesaid mortgage security made and executed to your orators, Charge that it bearing date the -said 17th and 18th days of July . Whereas was made your orators charge that if any such mortgage was made and executed to^laintiff's'' *° *^® ^^^^ "^^^^ °^ ^' *^® ^^™® ^^^ made and executed by the said security. R- W. P. subsequently to the date of your orators' said mortgage Or that if it Securities. And" your orators further charge that if the same does bears a prior actually bear date prior to your orator's said security, which your wa's ant'-'' orators do not admit, the same was antedated, and was not signed dated. and executed by the said R. W. P. on the day which the same pur- That the de- ports to bear date. And your orators further charge that the said fendant or his Earl of E. or his agent or agents who transacted the business of the agents had gj^j^j mortgage for him, had previous notice of your orators' charge previous DO- oo /JT ^ •/ ^^o tice of plain- upon the Said premises, or that the said Earl of E. or his said agent tiff's charge, or agents had some knowledge of the circumstances hereinbefore of theci^lfum^ stated, with regard to the loan of the sum of 3000Z. to the said R. stances stated ^* ^' ^7 your orators. And that the said Earl of E. or his said with regard to agent or agents had some reason to know believe or suspect, or might the loan, by bave ascertained that your orators had some lien or charge upon the e p am 1 s. ^^^j^ mortgaged premises. And your orators further charge that platnUffs are Under the circumstances and for the reasons hereinbefore stated, entitled to a your orators are entitled to a charge upon the said estates and r *200 1 premises comprised in their said mortgage ^security, prior to the said charge prior Earl of E. and to be paid the sum of 300?. with the arrears of inter- to the defend- est thereon, prior or in preference to the said alleged claim of the ^"*' y''? said Earl of E. And your orators further charge that the said Earl to redeem^'or ^^ ^- ought either to redeem your orators, and to pay to them the release his' amount of the Said principal moneys and interest due on their said equity of re- mortgage securities, with their costs, or to permit your orators peace- emp ion. ^^^j and quietly to hold and take possession of the said mortgaged hereditaments and premises, and to release all his right title and equity of redemption therein and thereto. '■* And that your orators may be declared to be entitled to a prior charge on the said estates lands and premises, and to be paid their said mortgage debt or sum of 3000Z. together with interest and costs, prior or in preference to the said D. Earl of E. And that the said T. S. and T. W. P. may be decreed by this honorable court BILLS OF FORECLOSURE. 200 to come to a just and fair account with your orators for the principal and interest now due and owing to your orators upon or by virtue of their said mortgage security. And that the said D. Earl of E. may he decreed to pay the same to your orators by a short day to be appointed by this honorable court, together with your orators' costs. And in default thereof that the said D. Earl of E. may stand and be absolutely barred and foreclosed of and from all right and equity of redemption in and to the said freehold and leasehold heredita- ments and premises comprised in the said indentures of lease and release and mortgage of the 17th and 18th days of July . And that an account may in like manner be taken of what shall be then due and owing to your orators for principal money and interest upon or by virtue of their said mortgage securities. And that the said freehold and leasehold hereditaments and premises may be sold before the major part of the commissioners in the said commission named and all necessary and proper parties be ordered to join with your orators in making and executing such conveyance assignments and other assurances to the purchaser or purchasers of such freehold and leasehold hereditaments and premises as may be necessary and proper; and that out of the money which shall arise and be pro- duced from such sale or sales, the costs charges and expenses of your orators in this suit and of such sale or sales to be made as aforesaid, and the perfecting the titles to the said freehold and leasehold hereditaments and premises and otherwise relative thereto may be in the first place paid, and that the surplus or residue of the money to arise and be produced from such sale or sales as afore- said, or a competent part thereof, may be applied in payment to your orators of the said sum of 3000Z. and interest ; but if the same shall not be sufficient to satisfy and pay the said principal sum of 3000Z. and interest, then that your orators may be at liberty to prove the remainder of the said sum of 3000?. and interest under the said commission against the separate estate of the said R. W. P. and receive dividends upon the same paripas&u with the other sepa- rate creditors of the said E. W. P. who shall have proved their debts under the said commission. And that your orators may have such *further and other relief in the premises as the nature of this case [ *201 J may require and to your lordship shall seem meet. May it please, &c. Pray subpoena against T. S. and T. W. P. and letter missive to the Earl of P. Opinion. "I am of opinion that the second mortgagee cannot be compelled to concur in a sale of the mortgaged premises when there are two or more mortgagees, and they do not all concur in selling the property. "The only course is for the first mortgagee to file a bill of fore- closure against the second mortgagee, to which the assignees must be parties defendants, and I think under such circumstances the prayer of the bill should be, that in case the second mortgagee does not redeem, but should submit to or be decreed to be foreclosed, then that the mortgaged premises should be decreed to be sold before the commissioners, and out of the moneys arising from the sale the 201 BILLS OP FORECLOSIIRB. parties' costs and expenses should be paid in the first instance, and the residue applied in satisfaction of the interest and principal of the mortgage ; and that the plaintiff may be permitted to prove the resi- due of his debt under the commission, and receive dividends pari passu with the other creditors. This will give the first mortgagee the same relief he would be entitled to in a summary manner if there were only one mortgage. " Another mode I think may be adopted, although I never knew it practised, viz. for the first mortgagee to petition in the bankruptcy to have not the estate but his mortgaged interest sold, for the pur- pose of ascertaining the amount he ought to prove under the com- mission. In such case the purchaser would be in effect the first mortgagee, but without any right of recourse against the bankrupt's estate, if the mortgaged property should prove deficient. This mode of sale would probably prove disadvantageous to the first mortgagee." Defendant G. A. claims a mortgage for 30002. Charge that no part of the consideration was ever paid. [ *202 ] Charge that G. A. had no property of the value of 3000Z., and in fact had very little property of his own. *LXIV. Charges in a bill hy a mortgagee to establish certain memo- randums of agreement given by the mortgagor previously to his bankruptcy, and for a foreclosure, against two other mortgn-gees and the assignees of the mortgagor; — with the interrogatories re- lating to those charges. But the said defendant Gr. A. alleges that he is a mortgagee of the said premises for the sum of ^3000 and interest, or for some such or the like sum. Whereas your orator expressly charges the contrary thereof to be the truth. And your orator further charges that although the indenture under which the said defendant G. A. claims to be such mortgagee as aforesaid, purports to be executed to him by the said T. H. {the mortgagor) in consideration of the sum of 3000Z., yet that no part of such alleged consideration was ever paid given or allowed by the said defendant G. A. to the said *T. H. and so it would appear if the said defendant G. A. would set forth how and in what manner the consideration of the said inden- ture was constituted and made up, and all the particulars whereof the same consisted, and when and where and how and in what man- ner and in whose presence such consideration and each and every part thereof was paid, given or allowed by the said defendant G. A. and all the particulars relating thereto. And your orator further charges that the said defendant G. A. at the time of the said con- sideration is alleged to have been paid, given or allowed by him to the said T. H. had not any property of his own to any such or the like amount in value of the said sum of 3000Z., but was in fact then possessed of little or no property of his own, and so it would appear if the said last-named defendant would set forth what property he was possessed of or entitled to at the time the said sum of 3000Z. is alleged to have been advanced by him to the said T. H. and the nature and particulars of such property, and out of what funds or other property the said alleged sum of 3000Z. was raised, and all the BILLS OF FOEECLOSUBB. 202 particulars relating thereto ; and as evidence of the matters afore- said your orator charges that the said defendant G. A. for some years prior to the latter end of the year resided at or near L. That he re- in the county of S. and was during such time or the greater part sided at L. thereof in the habit of assisting one Mr. P. who was a banker at L. habiTo'f a's° Jt- aforesaid in the concerns of his the said Mr. P.'s business, and that ing a banker the said Mr. P. as a remuneration for the services of the said de- tbe^ in his fendant Gr. A. during such period from time to time paid the trades- paid°G ^A^s"^" men's bills of the said defendant G. A. or some of them, and supplied bills and sup- him with trifling sums for pocket money, the said defendant G. A. plied him with having then no other means of support; and that the said Mr. P. poclset money. having become a bankrupt some time in or about the latter end of banker be- the said year , the said defendant G. A. thereupon came to coming bank- London, and he soon afterwards resided or kept house with one of the rupt, G. A. daughters of the said defendant M. ]Sr.,(5) and he thereby became f^^ *° ^°°- well acquainted with the said defendant M. N. and the said T. H. m. 1q , j^^^ And as further evidence of the matters aforesaid, your orator charges ^ggn arrested that the said defendant G. A. has several times since his arrival for debt, and in L. aforesaid been arrested for debt at the suit of several persons, confined m and has been confined in the King's Bench prison for want of bail, mV^°"^'- and that the deed by virtue of which the said defendant G. A. gage deed was claims to be entitled as such mortgagee as aforesaid was executed executed by by the said T. H. immediately or a short time before his bank- the mortgagor ruptcy, and in contemplation thereof. And your orator further hi°'^bJnkrapt- charges that in case it shall appear that notwithstanding the cir- cy, and in cumstances aforesaid the said defendant G. A. is a bona fide mort- contemplation gagee of the said premises or of any part thereof, then that the said "^° ' defendant at the time the aforesaid indenture was' executed to him, i,elg^^^,on3 ' well knew or believed or suspected or had some reason to know or fide mortga- believe or suspect, that the aforesaid memorandums had been respec- gee, that he tively executed to your orator by the said T. H., or that the said ""^^^ °^P'^'°" *T. H. had entered into some other agreements or agreement with your [ ^^^ orator to some such or the like effect. tiffs agree- And that the said defendant G. A. may in manner aforesaid "grtgage be- answer and set forth whether he does not allege that he is a mort- fore his mort- gagee of the said premises, or of some and what parts or part g^ge was exe- thereof, for the sum of 3000Z. and interest, or otherwise and how ; '^"'^'^■ And whether the indenture under which he claims to be such mort- gagee does not purport to have been executed to him in considera- tion of the sum of 3000Z. or for some and what other considera- tion ; And whether any and what part of such alleged consideration was ever and when paid, given or allowed by the said defendant G. A. to the said T. H. ; And that the said defendant G. A. may set forth the date and short material contents of such last-mentioned inden- ture ; And that he may also set forth how and in what manner the consideration of the said indenture was constituted and made up, and all the particulars whereof the same consisted, and when and where and how and in what manner and in whose presence such consideration and each and every part thereof was paid, given or (5) M. N. claimed a mortgage on the property prior to the plaintiff. 203 BILLS OF FORECLOSURE. allowed by the said defendant G. A. and all the particulars relating thereto ; And whether the said defendant G. A. at the time the said consideration is alleged to have been paid, given and allowed by him the said T. H., had any and what property of his own to any such or the like amount in value as the said sum of 3000?., or how does he make out the same; And whether he was not in fact then posses- sed of little or no property of his own ; And that the said last-men- tioned defendant may set forth what property he was possessed of or entitled to at the time the said sum of 3000/1. is alleged to have been advanced by him to the said T. H. and the nature and parti- culars of such property, and out of what funds and other property the said alleged sum of 3000Z. and each and every part thereof was raised, and all the particulars relating thereto ; And whether the said defendant Gr. A. did not for some and what years or for some and what other time prior to the latter end of the year , or to some and what other time, reside at or near L. aforesaid or elsewhere ; And whether he was not during such time, or the greater or some and what part thereof, in the habit of assisting Mr. P. hereinbefore named in the concerns of his the said Mr. P.'s aforesaid business or otherwise and how ; And whether the said Mr. P. was not a banker at L. aforesaid or elsewhere, and where and how other- wise ; And whether the said Mr. P. did not as a remuneration for the services of the said defendant G. A. or otherwise and how during such period, or during some and what part thereof, from time to time, or at some and what times or time, pay the trades- men's bills of the said defendant G. A. or some and which of them, and supply him with trifling or some and what other sums of money, for pocket-money or otherwise and how ; And whether the said defen- dant G. A. had then any and what other means of support ; And whether the said Mr. P. did not become a bankrupt at or about the time hereinbefore mentioned in that behalf, or at some other and what time in particular ; And whether the said defendant G. A. did not thereupon, or upon some and what occasion, come to L. ; and [ *204 J *whether he did not soon or some and what time afterwards reside or keep house with one of the daughters of the said defendant M. N. or with whom else did he then reside or keep house ; And whether he did not thereby or otherwise and how become well acquainted with the said defendant M. N. and the said T. H. or with either and which of them or how otherwise ; And whether the said defendant G. A. has not several or some and what times or time since his arrival in L. afore- said been arrested for debt at the suit of various or some and what per- sons or person ; And whether he has not been confined in the King's Bench prison or elsewhere : And whether for want of bail or otherwise and how ; And whether the deed by virtue of which the said defend- ant G. A. claims to be entitled as mortgagee as aforesaid was not exe- cuted by the said T. H. immediately or some short and what time before his bankruptcy, and in contemplation thereof, or how does the defendant G. A. make out the contrary; And that the said defendant G. A. may in manner aforesaid answer and set forth whether he did not at the time the aforesaid indenture was executed to him, well or in some and in what degree know or believe or suspect, or had not some BILLS OF INTERPLEADER. 204 and what reason to know or believe or suspect, that the aforesaid me- morandums or either and which of themjiiad been executed to your orator by the said T. H., or that the said T. H. had entered into some and what other agreements or agreement with your orator to some such or the like or some and what other effect or how otherwise. 12. BILLS OF INTERPLEADER.* A bill of interpleader is where the person exhibiting the bill claims no right in opposition to the rights claimed by the persons against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons, for the safety of the person exhibiting the bill; as where two or more persons claim the same thing by different or separate interests, and another person not knowing to which of the claimants he ought of right to render a debt or duty, or to deliver pro- perty in his custody,(l) fears he may be hurt by some of them, he may (1) This will not extend to cases of bailment where the parties may be compelled to interplead at law ; Ld. R.'s Tr. p. 48, n. ' A bill of interpleader lies only where two or more persons claim the same debt or duty from the complainant, by different or separate interests. Hayes v. Johnson, 4 Ala. 267; Oreen v. Mumford, 4 R. I. 313; Sherman v. Partridge, 4 Duer, 646; Adams v. Dixon, 19 Geo. 513 ; Farley v. Blood, 10 Foster, 354. And it is a proper remedy where suits are pending or threatened by the claimants ; Yarborough v. Thompson, 3 S. & M. 291 ; but will not lie after a judgment at law on the claim in favor of either or both of the claimants. Yarborough V. Thompson, 3 S. & M. 291. It is sufficient if, of the two adverse claims against the complainant, one of the claims is legal and the other equitable. Schyler v. Pelissier, 3 Edw. Ch. 191 ; Richards v. Salter, 9 Johns. C. R. 445. The bill must show that the plaintiff is a mere stake- holder, having no personal interest in the controversy ; it should not set out the facts on which the title of the claimants respectively is based, but ought only to state in a general way the nature of their claims. Shaw v. Coster, 8 Paige, C. R. 339 ; Lazier y. Van Saun, 2 Green, Ch. 325. If the dispute is concerning a sum of money, the bill should offer to bring it into court, or it will be demurrable. McOarrah v. Prather, 1 Blackf. 299 ; Shaw v. Chester, 2 Edw. Ch. 405. This seems, however, ruled other- wise, in Nash v. Smith, 6 Conn. 421, where it was said that the court might order the plaintiff .to bring in the money upon the application of either of the defendants. Where land is the object of the controversy, the plaintiff should make conveyances of the same ready for delivery to each of the defendants ; and if he has not done so, but has by the bill offered to deliver to the party who shall be decreed to be entitled, the court will order such deeds to be made, and filed with the clerk, subject to further order. Farley v. Blood, 10 Foster, 354. The bill cannot be sustained if it appears therefrom that one of the defendants is entitled to the debt or duty claimed. Mo- hawk and Hudson Railroad v. Clute, 4 Paige, 0. R. 384; ShawY. Coster, 8 Id. 339. The bill must contain an affidavit denying collusion, or it will be demurrable. Shaw V. Chester, 2 Edw. C. R. 405; Gibson v. Goldlhwaite, 7 Ala. 281. Where the facts stated in the bill are admitted in the answer, and no new facts are set up in bar of the suit, the cause, upon a replication being filed, is set down for a decree to inter- plead, before the proofs are taken as between the defendants, and the complainant is dismissed with his costs up to that time, paid out of the fund. City Bank v. Bangs, 2 Paige, C. R. 570. It is said, however, in Yates v. Tisdale, 3 Edw. Ch. 71, that it is not usual for the plaintiff, in such cases, to file a replication, although it is admissible for him to do so. In Connecticut, the practice, in relation to bills of interpleader, differs in some respects from that of England, and of many of the other States. Consociated Presbyterian Society v. Staples, 23 Conn. 544. 18 204 BILLS OF INTERPLEADEK. exhibit a bill of interpleader against them, praying that they may in- terplead, so that the court may adjudge to whom the property belongs, and the plaintiff may be indemnified. Ld. R.'s Tr. 32, 47, 125. The plaintiff should also by his bill offer to bring the money or property claimed into court, for the benefit of such party to whom the court shall adjudge the same to belong ;(2) and in case he does r *205 1 *'^°* m^ike such offer, the court, upon application of either of the defendants, will order the plaintiff to bring the property or to pay the money into court, or the Bank of England, for the benefit of such party to whom the court, at the hearing of the cause, shall de- cree the same to belong. 1 Madd. Ch. Pr. 174. The plaintiff is required to annex to his bill an affidavit that it is not exhibited in collusion with any of the parties, to induce the court to entertain jurisdiction of the suit ; and the want of such affidavit is therefore a ground of demurrer. Ld. R.'s T. R. 49, 126. An interpleading bill is exactly upon the footing of an injunction to stay waste,(3) and may be supported by affidavit of material facts. 2 Ves. jun. 109. LXV. Bill of interpleader hy a lessee of tithes against the rector, who had leased the same to him, and other persons claiming to he entitled thereto. (i) The form of the affidavit to be annexed to the. bill is added at-the conclusion ; p. 208. States that on or about plaintiff entered into an agreement in writing with defendant J. rector of the parish of S. in the county (2) If he does not do so, it is perhaps in strictness a ground of demurrer ; Ld. R.'s Tr. 126 ; and see 1 Madd. Ch. Pr. 174. (3) See Lord Eldon's observations on this expression, 2 Ves. & B. 412, n. (4) The rule that a tenant cannot compel his landlord to interplead {Dungey y. Angove, 2 Ves. jun. 303, 9,) does not prevail where the claim of a tliird person arises by the act of the landlord subsequently to the commencement of the relation of land- lord and tenant ; Cowtan v. Williams, 9 Ves. 107 ; Clarke v. Byne, 13 Ves. 383 J, 2d ed. It is necessary to a bill of interpleader that the plaintiff should admit a right in each party to sue him, and it is sufficient to support such a bill that each of the de- fendants has a claim by virtue of an alleged 1-egal or equitable right to the matter in question, Morgan v. Marsack, 2 Mer. 110, and the cases there referred to. Where the plaintiff has parted with the property, he cannot sustain an interpleading bill upon an undertaking to pay over the value to the party entitled ; Burnett v. Anderson, 1 Mer. 405 ; see also Slingsby v. Boulton, 2 Ves. & B. 334. A debtor of a bankrupt cannot support an interpleading bill against the bankrupt and his assignees, Harlow y. Crowley, in the Exchequer, Buck's B. Ca. 273 ; but see Lowndes v. Cornford, I Rose's B. Ca. 180; 18 Ves. 299, S. C. The plaintiff in a bill of interpleader against persons residing within and without the jurisdiction, after a reasonable time, and having used all reasonable diligence to bring all parties before the court, be decreed to give up the property in dispute to the only defendant within the jurisdiction, and will be protected against the others by injunction ; Stevenson v. Anderson, 2 Ves. & B. 407, and 412, n. The injunction on an interpleading bill stays allproceedings, and may be moved for before the time for answering has expired ; Vicary v. Widger, 1 Sim. R. 15 ; Warington ». Whealstone, Jac. Rep. 205; overruling Croggon v. Symons, 3 Madd. Rep. 131. The principle of interpleader is that the defendant who improperly raises the double BILLS OP INTERPLEADER. 205 of E. to take the tithes of corn grain herbage wool and lambs yearly arising and growing in said parish of S. together with the pew *in [ *206 ] the chancel of the church, and all profit of what kind soever belong- ing to the said rectory of the said parish (the parsonage house glebe lands and all out-buildings thereunto belonging only excepted,) for the term of six years from Michaelmas-day then last paying the sum of 1 clear of land-tax and all deductions to be paid in manner following, viz. 1, at Lady-day, and 1, at Michaelmas-day in every year for the said term of six years, the first payment thereof to commence at Lady-day . That in pursuance of the said agreement, plaintiff entered into the possession or receipt of the said tithes, and from time to time paid the said annual rent to defendant J. till the year when he was informed by defendant J. that he had disposed of his interest in the said tithes so long as he should continue rector of the said parish to defendant E. K., and had given him a power of attorney to receive said rent from plaintiff, and that plaintiff was to pay defendant K. the rent due at the Michaelmas preceding, and all future rent to grow due from plaintiff in respect of the said tithes. That plaintiff duly paid the said rent to defendant E. K. until the expiration of the said term of and hath since the expira- tion of the said term hitherto continued in the possession of the said tithes as yearly tenant thereof at the said rent of 1. That soon after the expiration of the said term of years, de- fendant B. K. informed plaintiff that he had given said tithes to his son the Rev. W. W. K., and that plaintiff was in future to pay the said rent to him ; and plaintiff accordingly from thence until the death of the said W. W. K. which happened in or about the year , paid the said rent to the said W. W. K. and from and after the decease of said W. W. K. plaintiff paid the said rent to H. K. his brother who claimed to be entitled thereto, and also produced to plaintiff a letter of attorney from defendant E. K. authorizing him the said H. K. to receive said rent irom plaintiff. That in or about , plaint ff received a letter from a Mr. W. as solicitor to the defendant A. stating that said H. K. had by two several indentures dated respectively granted bargained sold and confirmed unto the said defendant A. two several annuities of 1, each during the lives of them the said H. K. and defen- dant E. K. to be issuing payable out of and chargeable upon the said tithes, (amongst other premises therein mentioned,) and further stating that the last half year's annuity which became due on had not been paid by the said H. K. and requiring plaintiff^ therefore to pay the defendant A. the rent due from him for the said tithes. Th&t plaintiff in consequence of such letter did on or about pay the said defendant A. the rent of the said tithes which accrued due between Michaelmas and Michaelmas . claim pays the costs; Mariinius v. Helmuth, 2 Ves. & B. 412, n. and the cases referred to in note (a), ibid. ; and the plaintiff has a lien for his costs upon the fniid paid into court; Aldridge v. Mesner, 6 Ves. 418 ; Paris v. Gilham, Ooop. R. 57 ; but he is not entitled to his costs immediately after replying to the answers and serving subpoenas to rejoin, but must set down the cause for hearing; Jones v. Gilham, Coop. 49. 206 BILLS OF INTERPLEADBK. That in or about plaintiff received a letter from the said de- fendant E. K. claiming to be entitled to said tithes and the rent thereof, but defendant A. still insisting upon his right to receive the said rent from plaintiff, and plaintiff being advised that he could not with safety pay his rent either to the said defendant E. K. or to any other person until it was clearly ascertained to whom it [ *207 ] *belonged, ^Zam^z^ declined to make any payment to the said defen- dant E. K. That in then last defendant E. K. commenced an action at law against plaintiff, to recover from him what was due for the rent of the said tithes, h-ai plaintiff ' a attorney having procured a judge's order that the said defendant E. K.'s attorney should deliver to plain- tiff's attorney a statement of the said defendant E. K.'s place of abode, and that the proceedings should in the mean time be stayed, such order has never been complied with, and the said action has been discontinued. That defendant J. the rector of said parish of S. row also claims to be entitled to receive the said rent from plaintiff, and hath lately commenced an action ?igAmBt plaintiff m the Court of King's Bench for the recovery of the said rent, which is still depending, and the said defendant J. intends to prosecute same. That on or about pZamiz^ received a notice in writing, signed by the defendant T. P. as follows : [requesting plaintiff to pay the rent for the tithes to him, the same having been conveyed to him by deed.^ That plaintiff hath been informed that the deed referred to in the said notice, and under which defendant P. claims to be entitled to receive the rent of the said tithes from plaintiff was executed by the said H. K. subsequently to the grant of the aforesaid annuity to the defendant A. That there is now due from plaintiff years' rent of the said tithes from Michaelmas , making in the whole the sum of 1., and plaintiff is and at all times has been ready and willing to pay the same to whomsoever shall appear to be entitled thereto, but by reason that all the defendants persist in the several adverse claims before mentioned, and threaten and intend to proceed at law against plain- tiff iov the recovery of the said rent, plaintiff is advised that he can- not with safety pay the same to any of the defendants, but that they ought to interplead together touching their right to the said rent, in order that plaintiff may know to whom the same ought to be paid, and that the said defendants ought to be restrained by the order and injunction of the court, from prosecuting, proceeding in, or commenc- ing any action or actions at law agaiuBt plaintiff ior or in respect of the matters aforesaid. To the end, &c., [proceed as in form YI. p. 5, and interrogate to the statements in the bill.^ Prayer. And that the said defendants may answer the premises ; And that they maybe decreed to interplead together ; and that it may be ascer- tained in such manner as the court shall direct to which of them the rent of the said tithes belongs and ought to be paid. And that plain- tiff may be at liberty to pay the rent now due and to grow due from him for and in respect of the said tithes into court, which he offers to BILLS OP INTERPLEADER. 207 do for the benefit of such of the said parties as shall appear to be en- titled thereto. And that the said defendants may in the mean time be restrained from proceeding in prosecuting or commencing any action or actions at law against plaintiff in respect of the matters aforesaid. \_And for further relief, see form VIII. p. 5.] May it please, &;c. {see forms No. 1, and 4, p. 6.] J. L. *In Chancery. [ *208 ] Between J. C Plaintiff, and . . Defendants. The said J. C. maketh oath and saith, that he has exhibited his bill porm of affi- of interpleader against the defendants in this cause without any fraud davitto be an- or collusion between him and the said defendants or any or either of °«''<=^ t° '■^e them ; and that he the said J. 0. hath not exhibited his said bill at the request of the said defendants or of any or of either of them, and that he is not indemnified by the said defendants, or by any or either of them, and saith that he has exhibited his said bill with no other intent but to avoid being sued or molested by the said defendants, who are proceeding or threaten to proceed at law against him for the recovery of the rent of the said tithes in the said bill mentioned. Or thus : A. B. the above named plaintiff maketh oath and saith that he doth not in any respect collude with either of the above-named de- fendants touching the matters in question in this cause, nor is he in any manner indemnified by the said defendants or either of them, nor hath he exhibited his said bill of interpleader at the request of them or either of them, but merely of his own free will and to avoid being sued or molested touching the matters contained in his said bill. A. B. Sworn, &c. bill.(5) LXVI. Bill of interpleader hy the tenants of certain estates against an infant tenant in tail and the devisees in trust and executors under the will of the infant's father, and also against the acting executor under the will of the deceased tenant for life and the (5) The plaintifiF need not swear that the bill was filed at his own expense, or with- out the knowledge of either of the defendants ; in Dungey v. Angove, cited antea, p. 205, the affidavit stating "that the bill was not exhibited with the consent, knowledge, or combination of either of the defendants" was considered irregular, and as justifying suspicion of collusion; and see also 1 Madd. Ch. Pr. 175; Stephenson v. Anderson, 2 Ves. & B. 410 ; affidavits cannot be received in contradiction of the plaintiffs ; S. C. 208 BILLS OF INTERPLEADER. trustees under a deed executed hy him for the benefit of his credi- tors, claiming to he entitled to the rent which became due on the quarter day next after the decease of the tenant for life, plaintiffs holding under verbal agreements made with the deceased tenant for life, who had a power to lease by deed. Will of the in- States that T. B. late of, &c. deceased, did when he was of sound fant's father. ^^^^ disposing mind memory and understanding duly make and puh- [ '209 J *lish his last will and testament bearing date , which was exe- cuted and attested in such manner as by law is required for passing real estates, whereby (amongst other thingsj he gave and devised, &c. [devising all his manors messuages, ^c. to Lord M. and J. M. [sub- ject to certain annuities.) In trust for J. B. (lince deceased) for life, without impeachment of waste — remainder to his first and other sons in tail male — with a power to the person or persons for the time being in possession by indenture under hand and seal, to lease, ^c. and appointed the said Lord M. and J. M. [two of the defendants after named) executors of his will.'\ Testator lent That part of the residue of the said testator's personal estate money upon consisted of the sum of £ lent by the said testator to by mortgage, and ^ ^^ mortgage On the security of certain estates and premises brought eject- .•' j^n, ci ■ ^ i • ments and re- Situate, &c. and that the mortgagor oi the said mortgaged premises covered pos- having left the kingdom, ejectments were brought against the tenants session. ^f ^j-^g gg^j^j mortgaged premises by the said testator T. B. and pos- session thereof was recovered by him. His death. That some time after making the said will, the said testator de- parted this life without altering or revoking the same, leaving the said J. B. him surviving, and he the said J. B. thereupon under and iiswillestab- by virtue of the said will which hath since been established under a lished against decree of this court against the testator's heir at law, entered into the possession and receipt of the said manor hereditaments and premises thereby devised, and also of the said mortgaged premises. Tenant for life But the said J. B. being some time afterwards much involved in debt, demised his and being desirous of making a provision for the payment of such trustees for debts, did by certain indentures of lease and release bearing date the benefit of duly convey all his estate and interest in the said premises his creditors, situate at , and also in the said mortgaged premises unto W. L. and T. G. two other defendants, for the term of years if he should so long live, upon trust to lease, ^c. and manage the estates, and after paying an annuity of to the said J. B. to apply the surplus for his creditors. Death of ten- That the said J. B. departed this life on or about having ?,"' *°!'^'/^' duly made his last will and testament in writing bearing date , ' and thereby appointed G. D. (another defendant,) with certain other persons executors thereof, but the said Gr. D. alone proved the same and acted in the execution thereof, and the said J. B. left J. B. His eldest son (another defendant) an infant under the age of twenty-one years, ritled'^as^'ten- eldest SOU him surviving, who thereupon became and now is the ant in tail. fi*'st tenant in tail of tlie said manors lands and hereditaments, and also of the said mortgaged estates and premises, under and by virtue of the limitations contained in the said will of the said T. B., and BILLS OF INTERPLEADER. 209 the said J. B. being an infant, possession of the several estates and premises was taken by the said trustees named in the will of the said T. B. on his behalf, and a receiver hath been since appointed thereof, under an order made in a cause instituted by the said J. B. the infant, by his next friend. That the whole of the said manors, &c. together with the said Verbal agree- mortgaged premises were let or demised by the said J. B. now de- ™^°*' ™^lp ceased, under parol or verbal agreement, in different parts and parcels ^^^ ^^^J ^l^_ and at and under different yearly rents to plaintiffs as tenants thereof ant for life at *respectively from year to year, and the several rents reserved and differtint made payable by plaintiffs for the said lands and hereditaments in ^^^ ^q,/% their respective occupations were paid and payable half-yearly at L "^1*^ J Lady-day and Michaelmas-day in each year, but no regular leases or demises in writing were made or executed by the said J. B. de- ceased of any part of the said estates and premises. That the said G. Earl of M. and J. M. (the trustees under the will Claim on bt- of the said testator T. B.) claim to be entitled on behalf of the said ^jj^to t^V" J. B. the infant, or the said J. B. the infant in his own right claims half-year's to be entitled to the half-year's rent for the said manors, &c. and also rent accruing for the said mortgaged premises accruing due from the last rent-day "^"^ °° *')^ preceding the death of the said J. B. and which became due and ^fter the de- payable at Lady-day next following the decease of the said J. B. cease of the And on the other hand the said W. L. and T. G. as the trustees te°^n' f'"' I'fe. under the said indentures of lease and release bearing date , and ^'^^ '^^^}^ ^^^ the said G. D. as the only acting executor and personal representa- "ees^and exe- tive of the said J. B. deceased insist, that as the said J. B. the tenant cutor to the for life of the said manors, &c. did not in his life-time execute the proportion of power given to him by the will of the said T. B. as aforesaid, by ren/'up'tThis making or executing regular leases and demises of the said estates decease; and premises, but continued to the time of his death to let the said manors, &c. and also the said mortgaged premises to plaintiffs respec- tively by parol agreement only, plaintiffs were merely tenants at will or from year to year, and that their right to continue in possession of the estates and premises in their respective occupations, ceased or determined upon the r'eath of the said J. B. and that, therefore the growing or current aalf-year's rent at the time of his the said J. B.'s death, did not wholly belong to the said trustees on behalf of the said J. B. the infant, or to the said J. B. the infant as the next remainder-man entitled to the possession of the said estates and premises under the said will, but that the current half-year's rent which was growing or accruing due in the life-time of the said J. B. from and after the last rent-day preceding his death, ought to be apportioned, and that so much thereof as accrued due in his life-time And that the ought to be considered as part of the personal estate of the said J. B. remainder deceased, and as belonging to them the last-named parties or some t^^the^lnffnt or one of them, and that so much thereof only as accrued due after the said J. B.'s death, belonged to the said J. B. the infant as such remainder-man. That the amount of the said half-yearly rent which became due at Amount of Lady-day next following the death of the said J. B. as aforesaid, was """^it due from due from plaintiffs in the following particulars (that is to say) the * ^ ^ *'"*' "'■ 210 BILLS OF INTERPLEADER. sum o{ £ from plaintiff J. B., the sum of ^- from plaintiff And plaintiffs Actions com- menced against plain- tiifs for the arrears of rent. J. S., &c. &c. [setting out the sum due from each.} being desirous of paying their said rents to such of the said parties as should be justly entitled to receive the same, were in hopes that they should not have been harassed with any legal proceedings in order to compel the payment of such rents, and that the said parties would have settled their disputes among themselves, as in justice and equity they ought to have done. But that the said W. L. and T. Gr. the trustees under the said indentures of lease and release bearing date , have lately commenced actions at law against plaintiffs *T. K., &c. the tenants of the said mortgaged premises, and they [ *211 ] threaten and intend to bring actions against the rest of the plaintiffs as tenants of all the other estates and premises, in order to compel the payment of the rents so accrued due as aforesaid. And the said G. Earl of M. and J. M. the trustees named in the said will of the said T. B. and the said J. B. the infant threaten and intend to bring actions at law against all the plaintiffs in the name of the said J. B. the infant, in order to compel the plaintiffs to pay the said rents to them. And the said G. D. also claims the said rents as the executor and personal representative of the said J. B. deceased. And plaintiffs hj reason of the said opposite claims, are unable to ascertain with certainty to which of the said parties the said rents do justly and of right belong. And plaintiffs being ready and willing to pay the same to whichever of the said parties the same shall be found of right to belong, plaintiffs insist that the said several parties ought to inter- plead and be restrained from proceeding at law against them. That the said defendants may interplead and settle their rights to the rents so accrued due as aforesaid, under the direction of this honorable court plaintiffs being ready and willing to pay the said rents to either of the said parties to whom the same shall appear of right to belong, and hereby offering to bring the same into court for the benefit of such of the said parties as shall appear entitled thereto. And that the said W. L. and T. G. may be restrained by the injunc- tion of this honorable court from prosecuting their said actions so commenced as aforesaid, and that they and all the said other defend- ants may be restrained from commencing any other actions or proceed- ings at law against any of the plaintiffs in order to compel the payment of the aforesaid rents or any part thereof. [And for further relief] Plaintiffs in- sist that the defendants ought to in- terplead. Prayer. In Chancery. Between A. B., &c. [naming eacTi] and Plaintiffs. Defendants. The above-named plaintiffs A. B., &c. [stating all their names'] scTerally make oath and say, that they have exhibited their bill, &c. [vide antea, p. 208.] BILLS OP INTERPLEADEK. 211 *LXVII. Prayer that the defendants may interplead — that plain- tiff may he at liberty to pay the arrears of rent into court, first deducting thereout certain sums for repairs and land-tax, — that possession may be delivered to the party entitled, and an allow- ance made to the plaintiff for certain articles — and for an injunc- tion to restrain proceedings in ejectment and distresses being made upon the premises. And that the said several defendants may be decreed to interplead touching their said several claims, and that plaintiff may be at liberty *to pay the several sums now justly and fairly due from him for the [ *212 ] rent of the said messuage or tenement and premises into the bank, in the name and with the privity of the accountant-general of this honorable court, in trust for the benefit of thepersons or person en- titled thereto, subject to the further order of this court, after deduct- ing thereout in the first place the aforesaid sum of 361. to be allowed unto plaintiff for repairs pursuant to the said agreement, together with all sums of money expended and advanced hj plaintiff for land- tax and other necessary outgoings in respect of the said premises. And that plaintiff may be at liberty to quit the possession of the said premises, and that possession thereof may be delivered up to such person or persons as this honorable court shall direct or appoint. And that plaintiff may have a satisfaction or allowance made out unto him out of the rent of the said premises for the several articles hereinbefore and in the said first agreement particularly mentioned, which have been provided by plaintiff at his own expense for the said premises. And that in the meantime the said defendants S. 0. and T. C. may be restrained by the order or injunction of this honorable court from all further proceedings in the aforesaid action of ejectment brought against plaintiff, and that they and all the said other defendants may be in like manner restrained from making any distresses or distress upon the said messuage or tenement and premises, and from com- mencing or prosecuting any action or actions at law against plaintiff to recover the rent of the said premises or to turn plaintiff out of possession thereof, or otherwise from proceeding at law against plain- tiff touching any one of the matters aforesaid. And that all proper and necessary directions may be given for the purposes aforesaid. \_And for further relief] "213 BILLS FOR PAYMENT OF LEGACIES. *13. BILLS FOR PAYMENT OF LEGACIES ; AND ALSO TO CARRY THE TRUSTS OF WILLS INTO EXECUTION. (1) LXVIII. Bill against an executor ly the husband of a deceased legatee for payment of her legacy:{2') In the Exchequer. To, &c. Humbly complaining showeth unto your honors your orator A. B. of, &c. debtor, &c. [as inform No. 2, p. 2.] That W. S. late of, &c. duly made and published his last will and testament in writing bear- ing date on or about , and thereby amongst other bequests gave to his nephews and nieces, the children of his late sister M. A. the sum of £ each to be paid to them as they should respectively attain the age of twenty-one years, and appointed E. T. P. of, &c. the defendant hereinafter named, the sole executor of his said will. As in and by the said will or the probate thereof when produced will appear. And your orator further showeth unto your honors that the said E. T. (1) The same marshalling of assets takes place in favor of legatees as in favor of creditors, see note (4), antea, p. 128 ; as against assets descended, legatees have the same equity ; thus where lands are subjected to the payment of all debts, a legatee shall stand in the place of a simple contract creditor who has been satisfied out of the personal assets, Hashwood v. Pope, 3 P. Wms. 323. So where legacies given by ■will are charged on the real estate, but not the legacies given by a codicil, the former shall resort to the real assets on a deficiency of such as are personal to pay the whole, Bligh V. Earl of Darnely, 2 P. Wms. 619. A court of equity will not marshal assets in favor of a charitable bequest so as to give it effect out of the personal chattels, it being void so far as it touches any in- terest in land, Foster v. Blagdm, Ambl. 704. Under a devise of real and personal estate in trust to pay debts and legacies, some of which are void under the stat. 9 Geo. 2, c. 36, as a charge of charity legacies upon the real and leasehold estates and money on mortgage, on a deficiency of assets the other legatees were preferred to the heir, Ourrie v. Pye, 17 Yes. 462; and see also Toll. Ex. 6th edit. 420, 422. Where under the will of a widow, her residuary legatees are also appointees of a share of another testator's estate under a power given to her, a bill filed by them for an account and payment of their shares and to carry the trusts of both wills into exe- cution, is not multifarious ; Turner v. Robinson, 1 Sim. & Stu. 313. (2) General residuary legatees are not necessary parties to a bill for a specific legacy; Wainwrighi y. Waterman, 1 Ves. jun. 313; 1 Verm. 261. As to making the Bank of England parties for the security of a legacy, and also with regard to their costs, see note (1), postea, form SCVI. As to who are necessary parties to a bill by a legatee and appointee under the will of & feme covert, see Court v. Jeffery and Manning v. Thesiger, 1 Sim. & Stu. 105, 6. After a distribution of assets under a decree ascertaining the rights of legatees, ad- vertisements for all persons interested to come in and prove their claims before the Master having been previously published, a bill by a legatee against the representa- tives of the executor was dismissed ; Farr ell y. Smith, 2 Ba. & Be. 337; and see Jackson V. Leaf, 1 Jac. & W. 229 ; where a court of equity has taken the management of assets from an executor, it will not permit him to be charged for what has been aone pursuant to its directions ; 2 Ba. & Be. 342. Legatees are not to be excluded the benefit of a decree to account by not coming in to claim, though creditors are, because they would not be known or ascertained unless thev should appear, 9 Price, 210. BILLS FOR PAYMENT OF LEGACIES. *214 *F. soon after the death of the said testator duly proved the said will in the proper Ecclesiastical Court, and hath since possessed himself of the personal estate and effects of the said testator to an amount much more than sufficient for the payment of his just debts, funeral and testamentary expenses and legacies. And your orator further Marriage of showeth that after the death of the said testator your orator inter- ^ P ^"^ ' married with A. A. who was the niece of the said testator and one of the children of the said M. A. in the said will named, and by virtue of such intermarriage your orator in right of his said wife became entitled to demand and receive the aforesaid bequest of £ . And ^®'^*^.2,f your orator further showeth that your orator's said wife lived to ^jfg" and let- attain her age of twenty-one years, and that she hath lately departed ters of admiu- this life, and that neither your orator nor his said wife received any istration part of the said legacy. And your orator further showeth that p[ai^tlff. " having obtained letters of administration to his said wife, he hath repeatedly applied to the said E. T. F. for payment of the said legacy Applications. and interest thereon from the time of his said late wife attaining her age of twenty-one years, and your orator hoped that such his reason- able requests would have been complied with, as in justice and equity they ought to have been. But now so it is may it please your honors that the said E. T. F. combining, &c. [^seeform lY. p. 5.] To THE END therefore that, &c. \_seeform YI. p. 5, interroga- ting to the stating and charging part.'] And that an account may be taken of what is due and owing to Prayer, your orator for the principal and interest of the said legacy, and that the said defendant may be decreed to pay the same to your orator; And if the said defendant shall not admit assets of the said testator sufficient to answer the same, then that an account may be taken of the estate and effects of the said testator which have been possessed or received by the said defendant or by any other person by his order or to his use, and that the same may be applied in a due course of ad- ministration. \_And for further relief, see form Ylll. p. b.l May it please your honors, &c. [see form No. \, p. 6. J J. L. Jfj'ote. — A husband may, if he thinks fit, give to his wife a disposing power over any property, and it may therefore turn out in this case that the plaintiff has no interest in this legacy, but at all events he has no right of suit without taking out administration to his wife, but it will be sufficient to sustain this bill if he obtain letters of administra- tion any time before the hearing, and it will not be advisable to put himself to that expense until the defendant has put in his answer, so that it may be seen whether it is worth his while to prosecute the suit. "215 BILLS FOR PAYMENT OP LEGACIES, **LXIX. Bill hy husband and wife for payment of a legacy be- queathed to her, — claiming also a share in the testatrix's residuary estate under the bequest thereof in trust for her relations. To, &c. Humbly complaining show unto your lordship your orator and ora- trix P. S. of, &c. and M. his wife late M. H. spinster, That J. W. late of, &c. widow deceased, being possessed of very considerable personal estate, did on or about duly make and publish her The will of the last will and testament in writing, and thereby after giving divers testatrix. other pecuniary legacies gave unto your oratrix by her then name and description of the sum of £500 to be paid to her at her age of twenty-one years or day of marriage which should first happen. And as to her shop stock in trade and utensils thereunto belonging goods plate and furniture which should be in or about her house at the time of her death, together with her wearing apparel of all sorts, and all and every sum and sums of money debts by specialty or otherwise and all moneys invested in any of the public funds or gov- ernment securities and all other the residue of her personal estate whereof she should be possessed, interested or entitled to, the said testatrix gave and bequeathed the same to her brother J. L. in trust to pay apply and dispose thereof unto and among every of her re- lations at such times and in such manner and proportions as he in his discretion should judge most proper without having any regard to the legacies by her thereinbefore specifically given, and the said testatrix nominated and appointed the said J. L. sole executor of her said will. As by the said will or the probate thereof whereunto your orator and oratrix for their greater certainty crave leave to refer when the same shall be produced to this honorable court will appear. And your ora- tor and oratrix further show unto your lordship that on or about Death of tes- the said testatrix departed this life without altering or revoking her tatrix. gaid ^illj whereupon the said J. L. duly proved the same in the Pre- Probatebyde- rogative Court of the Archbishop of Canterbury and took upon him- ®° ^^ ■ self the execution thereof, and by virtue thereof possessed himself of all the personal estate and efiects of the said testatrix to a very con- siderable amount and much more than sufficient to answer and satisfy all her just debts, funeral and testamentary expenses and legacies. Marriage of And your orator and oratrix further show unto your lordship that the plaintiffs, gome time after the decease of the said testatrix (that is to say :) on or about they your orator and oratrix intermarried together, Plaintiff P S "f^^ereby your orator in right of your oratrix became well entitled in right of his to the said legacy of £500. And your orator and oratrix further wite entitled show that your oratrix is the niece of the said testatrix and your £5(Kf andal- 0^*^*°^ i° right of your oratrix as such relation, also became entitled to a 'share of to some part share and proportion of the residue of the said testa- the residuary trix's personal estate so bequeathed to the said J. L. upon trust as estate. aforesaid. And your orator and oratrix are advised that such only [ *216 ] of *the relations of the said testatrix are entitled to shares in such BILLS FOR PAYMENT OF LBSACIES. 216 residue as are capable of taking under the statutes of distributions of intestate's effects. And your orator and oratrix further show Applicationa. unto your lordship that they have frequently and in a friendly man- ner applied unto the said J. L. and requested him to pay and satisfy unto your orator the said legacy of ^£500 together with lawful inter- est for the same from the time of your orator and oratrix's said mar- riage, and also to come to a fair and just account for and in respect of the personal estate and effects of the said testatrix which have been received by him the said' J. L. or by any other person or persons by his order and for his use, and to pay and apply such personal estate in a course of administration, and to dispose of the clear residue or surplus thereof agreeably to the intention of the said testatrix in and by her said will expressed and declared. And your orator and oratrix well jy. hoped that such their reasonable requests would have been complied with as in justice and equity they ought to have been. BxJT NOW so IT IS, &c. [^seeform TV. p. 5,] the said J. L. absolutely refuses to com- Pretence that ply with such your orator and oratrix's just and reasonable requests testatrix never aforesaid, sometimes pretending that the said testatrix never made ^^^ that^de- and executed her last will and testament of such date purport and fendant is en- effect as is hereinbefore mentioned and set forth, and that therefore he titled as her the said defendant as the only next of kin of the said testatrix is en- "^^^ ° titled to the whole of her personal estate and effects. Whereas your charge the orator and oratrix expressly charge the contrary of such pretences to contrary. be true, and that the said testatrix in her life- time did duly make and execute her last will and testament in writing of such date purport and effect as is hereinbefore mentioned and set forth, and that by virtue thereof your orator is now become well entitled in right of your ora- trix to the said legacy of X500, and also to some part share or propor- tion of the residue of the said personal estate of the said testatrix after payment and satisfaction of her just debts funeral and testamen- tary expenses and legacies, and so the said defendant at other times admits the truth to be. But then he pretends that the personal es- Pretence that tate and effects of the said testatrix which have come to his hands the personal custody or power were very small and inconsiderable and not more estate is insuf- than sufficient to answer and satisfy her just debts and funeral and testamentary expenses. Whereas your oratrix and orator expressly charge the charge that the personal estate and effects of the said testatrix contrary. which have come to the hands, custody or power of the said defen- dant are of very considerable value and not only sufficient to answer and satisfy all the just debts legacies and funeral and testamentary expenses of the said testatrix, but also to afford a considerable resi- due to be applied and disposed of amongst her relations, and so it would appear if the said defendant would set forth a full true and par- ticular account of the said personal estate and of every part thereof, and how and in what manner to whom and for what the same and every part thereof has been applied or disposed of, but which he re- fuses to do or to make your orator and oratrix any satisfaction what- soever for in respect of their just demands. All which actings, doings and ^pretences, &c. [See form VI. p. 5, interrogating to the stating [ *217 ] and charging parts.'] And that the said defendant may set forth and discover a full true 217 BILLS FOR PAYMENT OP LEGACIES. Interroga- tories for ac- count and ap- plication of deceased's personal es- tate. Prayer. and particular account of all and every the personal estate and effects of or belonging to the said testatrix at the time of her death together with the natures kinds quantities qualities true and utmost value thereof, and every part thereof, and how much and what parts of the said personal estate and eflFects have been received by or come to the hands possession or power of the said defendant or of any other person or persons and whom by name by his order or for his use, and how the same and every part thereof hath been paid, applied or dis- posed of and administered, and to whom and for and upon what ac- count cause or consideration, and whether any and what part thereof is now remaining to be got in and administered, and where and in whose hands possession or power, and why the same has not been got in and received and what is the amount thereof. And that the said defendant may be decreed by this honorable court to come to a fair and just account with your orator and oratrix for and in respect of all and singular the personal estate and effects of the said testatrix which have been received by him or by any other person or persons by his order or for his use, or which without his wilful default might have been received, and that the same may be applied in a due course of administration, and that your orator may be fully paid and satisfied the aforesaid legacy of £500 together with lawful interest for the same from the solemnization of your ora- tor and oratrix's said marriage, and that the clear residue of the said testatrix's personal estate may be ascertained, and that it may be declared by this honorable court that such relations only of the said testatrix are entitled to take any shares under the gaid will in the residue of the said testatrix's personal estate as are capable of taking under the statute of distributions. And that it may be re- fered to one of the masters of this honorable court to enquire and state what relations the said testatrix left of such description ; and that the said defendant may also be decreed to pay and satisfy unto your orator in right of your oratrix such part share and proportion of such clear residue or surplus to which your oratrix shall appear to be justly entitled under and by virtue of the said testatrix's will. And for further relief, see form VIII. p. 5.] May it please, &c. See form No. 1, p. 6.] LXX. Bill against an executor hy legatees and the administrator of a deceased legatee, for payment of their legacies and shares of the residuary personal estate. To, &c. Humbly complaining show unto your lordship your orators and oratrix H. K. the elder of, &c. administrator of the goods and chat- [ *218 ] tels ^rights and credits of F. K. late of, &c. deceased, H. K. the younger of, &c., and S. K. an infant under the age of twenty-one years, to wit, about the age of twenty years, by the said H. K. the BILLS POR PAYMENT OF LEGACIES. 218 elder her father and next friend, That J. R. late of, &c. being pos- sessed of or well entitled unto a considerable personal estate, duly made and published his last will and testament in writing, and a Testator's codicil thereunto annexed, the said will bearing date on or about the will and a co- day of , and by his said will amongst other things gave and "^"^'^ 'hereto. bequeathed unto your oratrix S. K. the sum of £ to be paid to her at the age of twenty-one years or day of marriage which should first happen. And the said testator also gave and bequeathed unto your orator, H. K. the younger the sum of £ to be paid to him on his attaining his age of twenty-one years. And the said testator after giving divers other legacies, gave and bequeathed unto R. B. (the defendant hereinafter named) and W. R. H. of, &c. and who departed this life in the life-time of the said testator, the Test and residue of his estate and effects in trust to be equally divided between such children of his the said testator's niece H. K. as should be living at the time of his decease, and thereby appointed the said R. B. executor thereof. As in and by the said will or the probate thereof, when produced to this honorable court will appear. And your orators and oratrix further show unto your lordship that the said J. R. departed this life on or about without revoking or His death. altering his said will save by the said codicil, and without revoking or altering the said codicil or any part thereof; whereupon the said R. B. the executor in the said will named, duly proved the same in Probate by the the proper Ecclesiastical Court, and undertook the executorship executor, thereof, and possessed himself of the personal estate and effects of the said testator to a very considerable amount, and more than suffi- cient to discharge his just debts funeral expenses and legacies. And Title of piain- your orators and oratrix further show unto your lordship that the *'*• said F. K. in the said testator's will named, and your orator and •oratrix H. K. the younger and S. K. were the only children of the said M. K. in the said will named who were living at the time of the death of the said testator, and your orator H. K. the younger became entitled to have and receive his said legacy of £ so be- queathed to him as aforesaid, and also his third part or share of the residue of the personal estate and effects of the said testator after payment of all his just debts legacies and funeral expenses ; and your oratrix S. K. is entitled to have her said legacy of £ , and also her third part or share of the said residue secured for her benefit until she shall attain her age of twenty-one years or day of marriage ; and your orator H. K. the elder is entitled as such ad- ministrator of the said J. K. as aforesaid, to have and receive the remaining third part or share of the said residue. And your orators and oratrix farther show unto your lordship that the said F. K. de- parted this life on or about intestate, and that since his death your orator the said H. K. the elder has obtained letters of ad- ministration of the personal estate and effects of the said F. K. to be granted to him by the proper Ecclesiastical Court. And your orators and oratrix further show unto your lordship that your orator *H. K. the younger attained the age of twenty-one years on or about ^ *219 ] , and your orators and oratrix being so entitled as aforesaid, your orators have made frequent applications to the said R. B. to 219 BILLS FOE PAYMENT OF LEGACIES. Applications to defendant. Pretence that testator never made a will, and that his personal es- tate was in- sufficient. Charge the contrary. Prayer. pay the said legacy of 1, and the said two-third shares of the said residue; and your oratrix hath also applied to him the said R. B. to lay out and invest her said legacy of 1, and her third share of the said residue upon some proper security for her benefit until she shall attain her age of twenty-one years or day of marriage, with which just and reasonable requests your orators and oratrix well hoped that the said defendant would have complied as in justice and equity he ought to have done. But now so it is, &c. [see form IV. p. 5,] he absolutely refuses so to do, sometimes pretending that the said testator never made any such will as is hereinbefore stated. Whereas your orators and oratrix charge the contrary thereof to be true, and so the said defendant will at other times admit. But then again he pretends that the said testator's personal estate was very small and inconsiderable and not nearly sufficient to pay and satisfy his just debts and funeral expenses. Whereas your orators and oratrix expressly charge that the personal estate and effects of the said tes- tator were much more than sufficient to discharge the said testator's just debts and funeral expenses and legacies : and so it would appear if the said defendant would set forth a full true and particular ac- count of all and every the personal estate and effects of the said testator come to his hands or use, and also a full true and particular account of the manner in which he hath disposed of or applied the same, but which the said defendant refuses to do. All which act- ings, &c. [see form VI. p. 5, interrogating to the stating and charging parte.] And that the said defendant may answ^er the premises; and that an account may be taken of the personal estate and effects of the said testator come to the hands of the said defendant or of any person or persons by his order or for his use, and also of the said testator's funeral expenses debts and legacies; and that,the same may be ap- plied in a due course of administration ; and that the said defendant may be decreed to pay to your said orator H. K. the younger his said legacy of 1. ; and that the clear residue of the said testator's personal estate and effects may be ascertained and that such share thereof as shall appear to belong and be due to your orators respec- tively may be paid to them respectively, and that your oratrix's said legacy of 1, and also such share of the said residue as she shall appear to be entitled to may be secured for her benefit ; and that for those purposes all proper directions maybe given. [And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] BILLS FOR PAYMENT OP LEGACIES. *220 *LXXI. Bill on behalf of infant legatees entitled to a sum of stock standing in the names of the executors, praying to have a guardian appointed — maintenance allowed for the time past and to come — an account taken of the dividends retained hy the executors, and to have the stock transferred into the Accountant-Gfeneral' s name.{S) Humbly complaining show unto your lordship your orators and oratrix E. 11. I. H. T. H. and M. A. H. infants under the age of twenty-one years, by I. E. of, &c. their next friend, that E. H. the elder late of, &c. but now deceased, duly made and published his last will and testament in writing bearing date, &c. whereby he Testator's directed that W. T. of, &c. and E. B. of, &c. (the defendants herein- will. after named) and C. Gr. of, &c. who were the trustees and executors in his said will named should out of the moneys which should come to their hands in manner therein mentioned, layout and invest in or upon government or real securities at interest the sum of £ , Upon trust, &c. [_The trustees were to pay the dividends to E. H. the testator's wife during her life or until her second marriage, and after her decease or second marriage, the whole of the dividends to be applied by the trustees for the maintenance and education of tes- tator's grand-children the plaintiffs, to whom the principal was to be transferred, to the grand-sons at twenty-one and to the grand- daughters at twenty-one or marriage.^ As in and by, &c. And your orators and oratrix further show that the said testator departed His death. this life in or about the month of without having in any manner revoked or altered the said will, except by a codicil bearing date, &c. which did not relate to or aifect the said trusts of the said sum of £ . And your orators and oratrix further show unto your lord- Probatebythe ship that W. T. and E. B. and the said C. Gr. duly proved the said executors, testator's will and acted in the trusts thereof, and out of the moneys which came to their hands from, the estate and effects of the said testator in or about, &c. appropriated the sum of .£ in satisfac- tion of the aforesaid legacy in the purchase of the sum of £ Legacy in- 3 per cent, consolidated bank annuities, and the said sum of stock 'tested in stock is now standing in their names in the books of the governor and ^^^i^ names. company of the Bank of England. And your orator and oratrix further show unto your lordship that the said C. G. hath departed Death of an this life, and that the said E. H. on or about, &c. intermarried executor, with and is now the wife of the said I. E. whereupon the interest J^!',™!,! °L of the said E. il. in the said sum ot £ 6 per cent, consoli- dow, where- dated bank annuities wholly ceased. And your orators and ora- upon her in- trix farther show that the said defendants paid to the said I. E. ^^^jfg^^g*^* and E. his wife the year's dividends which became due on the ceased, said sum of stock on the day of as well for the interest (3) Since the stat. 36 Geo. 3, c. 52, s. 32 (explained and amended by the 37 Geo. 3, u. 135,) bills by infants for payment o.f their legacies have been rendered unnecessary, as under the first-mentioned act the executor may pay the legacy into court, and the infant when of age may petition for it; see Wopham v. Wingfield, 4 Ves. 630 ; Wilson V £rownsmiih,9 Ves. 180: Beames on Costs, p. 14; 2 Madd. Ch. Pr. HI ; Toll. Ex. 317. 19 *221 BILLS TO CAREY THE TRUSTS Executors have retained the dividends since the last payment to the widow. Charge that a guardian ought to be appointed and allowance made for maintenance for the time past and to come. Prayer. *of the said E. E. in the said stock as for the maintenance and education of your orators and oratrix up to that time; but the said defendants have retained in their hands the subsequent dividends which have accrued due on the said stock, and have made no payments or allowances thereout for the maintenance or education of your ora- tors and oratrix. And your orators and oratrix further show that some proper person or persons ought to be appointed as the guardian or guardians of your orators and oratrix, with suitable allowances for their maintenance and education for the time past since the said day of , and for the time to come, and that the said sum of stock ought to be secured in this honorable court. To the end therefore that, &c. [see form VI. ^. 5, interrogating to the stating farts.'] And that the said defendants may answer the premises ; and that some proper person or persons may be appointed the guardian or guardians of your orators and oratrix with suitable allowances for their maintenance and education for the time past since the said day of and for the time to come, and that the said defendants may account for the dividends of the said trust stock which have accrued due since the said day of , and may thereout pay the allowances which shall be made for the maintenance and educa- tion of your orators and oratrix since the said day of , and may pay the residue thereof into this honorable court for the benefit of your orators and oratrix; and may also transfer the said sum of £ 3 per cent, consolidated bank annuities into the name of the accountant-general of this honorable court to be there secured for the benefit of your orators and oratrix, and such other persons as may eventually be interested therein. [JLw(i for further relief, see form VIIJ. p. 5.] May it please, &c. [see form No. 1, p. 6.] LXXII. Bill on behalf of an infant and only child against the executor of her father' s will, who was also her guardian under the will and administrator to her mother — praying to have the trusts of her father s will carried into execution, and an account taken of his personal estate debts and legacies, and of the rents and p)roduoe of his freehold estates, and of his shares in certain col- lieries — praying also that an account may be taken of the personal estate and debts of the infant's mother, and to have the testator's residuary estate secured for the benefit of the infant, — a receiver appointed, and an allowance made for the maintenance of the infant, — {she being also entitled as tenant in tail to certain estates under her parent's marriage settlement, and under the will of her grandfather.) To, &c. Statement of Humbly complaining showeth unto your lordship your oratrix thepropertyto A. W. an infant under the age of twenty-one years, that is to say, of the age of nine years or thereabouts, by T. W. of, &c. her uricje which the in- OF WILLS INTO EXECUTION. 221 and next friend, That A. W. late of, &c. but now deceased, the fant's father *father of your oratrix, was at the time of maliing his said will and ^^^ entitled. at his death, seised in fee-simple of or otherwise well entitled to [ *222 ] part or share of and in a certain colliery or coal-mine, in, &c. called colliery, and also to part or share of and in a certain colliery, or coal-mine in the county of D. called colliery, and was also possessed of one undivided moiety of a certain brewery malting and lands situate at, &c. held by lease from the dean and chapter of D. for a term of years, and was also possessed of farming stock and other personal property to a great amount. And your oratrix further showeth unto your lordship that on or about, &c. the said A. W. duly made and published his last will and testament Hi.s will ; in writing which was executed and attested in such manner as by law is required for passing real estates, and was in the words and figures or to the purport and effect following: \_Q-ave to his wife J. W. his liquors and furniture for life she signing an inventory. Gave all Ms colliers and all other his estate, to defendant M. S. in trust for his children^ if more than one, equally, and if but one to such one, chargeable with three annuities of 1, to his wife, 1, to his sister M. B. and 1, to J. W. son of Cr. W. and appointed said R. S. sole executor a?id guardian of plaintiff in case of his wife's death or second marriage.^ And your oratrix further showeth unto your lordship that the said A. W. departed this life on or about and death. without having in any manner revoked 'or altered his said will, leaving J. W. in the said will named his widow, and your oratrix his only child him surviving, and thereupon the said 11. S. of, &c. one of the defendants hereto and the sole executor in his said will Probate by named, duly proved the said will in the proper Ecclesiastical Court, the executor. and took upon himself the executorship thereof. And your oratrix further showeth that the said J. W. the widow of the said testa- Death of the tor and mother of your oratrix departed this life intestate on or widow, leav- about, &c. leaving your oratrix her only child and sole next of kin; jng 'he infant and letters of administration of her goods chattels rights and credits kin. have since been duly granted to the said R. S. who hath thereby Administra- become her legal personal representative. And your oratrix further tion granted showeth unto your lordship that by indentures of lease and release t°r'g'exec!no bearing date, &c. and made or expressed to be made between R. W. the C3„,„„„„„t „ ' , ° m 1 c ■ c 1 f 1 • 1 m iiT 1 isettlement on late grandtather oi your oratrix oi the nrst part, the said 1. W. and the marriage J. H. of, &c. another defendant hereto of the second part, the said tes- of Ae parents tator A. W. of the third part, the said J. W. the wife of the said A. "^ ^^"^ '"f^"*! W. of the fourth part, G. W. of, &c. and W. G. of, &c. two other de- fendants hereto of the fifth part, the said defendant R. S. of the sixth part, and T. B., &c. of the seventh part, one undivided moiety or half part and share of and in a certain messuage tenement and lands, &c. [describing the premises^ were conveyed and assured to the said G. W. and W. G. their heirs and assigns, in such manner that the said A. W. and J. his wife during their joint lives were each entitled to one moiety of the rents and profits of the said premises, and that the said J. W. became entitled to the entirety of suck rents and profits upon the death of the said A. W. for and during the term of her life; and that your oratrix is now by the events that have happened. Infant entitled 222 BILLS TO CARRY THE TRUSTS as tenant in tail under it. [ *223 ] Will of her grandfather ; Infant entitled as tenant in tail under it. The executor possessed himself of the testator's per- sonal estate and of the rents and pro- duce of his real and lease- hold estates and collieries ; Also of the personal es- tate of the in- fant's mother. Annuity to the mother not paid. That the trusts of the will ought to be performed. That R. S. ought to ac- count for the personal es- tate of plain- tiff's parents and the rents and profits of the real and leasehold es- tates and col- lieries. That a receiv- er ought to be tenant in tail in possession of the said premises ; but the said G. W. *and W. G. now have or claim some legal estate therein, in trust how- ever for your oratrix. And your oratrix further showeth unto your lordship that the said R. W. the father of the said A. W. by his last will and testament gave devised and appointed all his copyhold messuages lands tenements and hereditaments, &c. unto the said R. S. and J. H. their heirs and assigns forever in such manner that the said A. W. was entitled to and enjoyed the rents and profits of the said premises for and during the term of his life, and that your oratrix in the events that have happened has become tenant in tail in possession thereof. And the said testator R. W. also gave and de- vised all his leasehold messuages lands and premises, &c. [to go with the freehold as far as the rules of law would admit.'] And your oratrix further showeth that the said R. S. and J. H. now have or claim some legal estate or interest of in and to the said freehold copyhold and leasehold premises, in trust however for your oratrix. And your oratrix further showeth unto your lordship that the said R. S. hath possessed the personal estate and effects of the said tes- tator A. W. to an amount greatly more than suflScient to pay and satisfy his funeral expenses debts and legacies ; and the said R. S. since the death of the said testator, bath received very considerable sums of money from the profits and produce of the said testator's share and interest in the and collieries and in the brewery malting and lands at H. S. ; and the said R. S. upon the death of the said testator entered into the possession or receipt of the rents and profits of the premises comprised in the aforesaid indentures of , and of the freehold copyhold and leasehold premises de- vised as aforesaid by the said A. W.; and the said R. S. hath ever since continued and now continues in such possession or receipt. And your orator further showeth that the said R S. hath since the death of the said J. W. your oratrix's mother possessed himself of the wine and other liquors which were in the house of the s^id testator A. W. at the time of his decease, and of all other the property and efiects specifically bequeathed to the said J. W. And the said R. .3. never paid over to the said J. W. the proportion of the annuity which became due to her under the will of her said lat^ husband, nor the rents which were due to her in respect of the premises comprised in the said indentures of . And your oratrix further showeth that the trusts of the said will of the said testator A. W. ought to be performed and carried into execution ; and that the said R. S. ought to account for the personal estate and efiects of the said tes- tator, and for the rents and profits of his real estate, and also for the personal estate and eff'ects of the said J. W. And that some proper person ought to be appointed to receive the rents profits and produce of the said freehold copyhold and leasehold estates and of the said testator's share and interest in the said collieries or coal mines, and that a suitable allowance ought to be made for the main- tenance and education of your oratrix for the time past and to come. To THE END therefore, &c. [see form VI. p. 5, interrogating to the statements.] And that the said defendants may answer the premises. And that OP WILLS INTO EXECUTION. 223 the will of the said testator A. W. may be established, and the trusts appointed and ^thereof performed and carried into execution by and under the an allowance direction of this honorable court. And that an account may be plaintiff's taken of the personal estate and effects of the said testator which maintenance. have been possessed or received by the said R. S. or by any other r *224 ] person or persons or by his order or to his use ; and that an account prayer. may also be taken of the said testator's funeral expenses debts and legacies, and that the said testator's personal estate may be applied in payment thereof in a due course of administration. And that an account may be taken of the rents profits and produce of the said testator's freehold copyhold and leasehold estates, and of his share and interest in the said collieries which have accrued due since the death of the said testator, and have been possessed or received by or by the order or to the use of the said R. S. And that an account may also be taken of the estate and effects of the said J. W. which have come to the hands or use of the said R. S. and of her funeral expenses and debts. And that the surplus of the personal estate of the said testator and the rents profits and produce of his free- hold copyhold and leasehold estates and coal mines received by the said R. S., and the residuary estate if any of the said J. W. may be secured in this honorable court for the benefit of your oratrix. And that some proper person may be appointed by this honorable court to receive the rents profits and produce of the said freehold copyhold and leasehold estates and collieries. And that suitable allowance may be made for the maintenance and education of your oratrix for the time past and to come. [And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] J. L. Pray suhpoena against R. S. J. R. a. W. and W. a. LXXIII. Bill hy legatees for payment of their legacies., and to carry the trusts of the will into execution, and to have the residuary estate ascertained ;{4:) — Praying a declaration that the defendants the co-heirs- at law of. the testator hy claiming and taking a copy- hold estate which had not been surrendered to the use of the will, although intended to pass therely, had forfeited all benefit under the wiU. Humbly complaining show unto your lordship your oratrixes J. W. C. W. and S. W. infant children of S. W. of, &c. under the age of twenty-one years, by the said S. W. their father and next friend, aiid A. H. M.-of, &c. spinster. That T. F. late of, &c. was at the (4) Wh«re a real estate is devised, charged with legacies, one of the legatees cannot sustain a bill on behalf of himself and all the other legatees; for though it is an established rule that legatees out of personal estate only, need not be parties, yet every person claiming an interest out of real estate must be before the court; Morse V. Sadler, 1 Cox, 352. 224 BILLS TO CAREY THE TEUSTS time, &c. [stating that testator was seised of real estates, and also [ *225 J ^entitled to large personal estate, Jiis will, and a codicil thereto, his death without altering the same, and probate thereof by his execu- tors.'] And your oratrixes further show unto your lordship that the said testator was in his life-tinae and at the time of his death (amongst other freehold and copyhold estates) seised to him and his heirs according to the custom of the manor of W. of and in a Testator's copyhold estate, consisting of, &c. ; and that the said testator de- death, without parted this life without having first surrendered the said copyhold ren^defed^a' estate to the use of his said will, by reason whereof the said W. copyhold es- M. the Said executor and trustee and the said R. M. and N. M. in tate, which his the Said will named upon or soon after the death of the said testator heirs at law claimed the said copyhold premises as having descended to them claimed, and , ,. t'^pi^t i i- entered into ^'^ the co-heirs at law 01 the said testator, and entered into possession possession. thereof for their own use and benefit. And your oratrixes further show unto your lordship, that the said W. M. R. M. and N. M. as Trustees en- such trustees as aforesaid, have, since the death of the said testator, teredintopos- entered into possession of all other the said testator's freehold session of tes- estates, and have proceeded to a sale thereof or the greatest part tnte"^ and^oW t'^'^^'^of) ^^^ have received the purchase-money arising therefrom, the same ; the which, together with the personal estate and effects of the said testa- produce of the tor possessed by them, amount to a very large sum, and much more real and per- ^\^^^ sufficient to pay and discharge the said testator's just debts, more than suf- funeral expenses and legacies. And your oratrixes further show ficient to pay unto your lordship, that the said R. M. was at the time of the making testator 3 gf ^j^g gg^j^ .,yj]j g^j^j ^f ^jjg death of the said testator, married unto ' ■ A. M. one of the defendants hereinafter named, but that the said R. M. hath not, nor had at the time of the death of the said testator, any children or child, and that the said N. M. was at the time of the making of the said will and at the death of the said testator and Siatement of HOW is Unmarried and without children. And your oratrixes further the rights of show unto your lordship, that your oratrix A. H. M. is entitled to the plaintiffs. ]^^^,^ ^^^ receive of and from the said trustees the said sum of £ , which in and by the said will is directed to be by them invested in the purchase of three per cent. Consolidated Bank Annuities, and to be applied for her use and benefit in manner in the said will mentioned, and is also entitled to have one-third part or share of the residue of the real and personal estate of the said testator invested and secured for her benefit, pursuant to the directions of the said will ; and that your oratrixes J. W. C. W. and S. W. are entitled to have the said sum of £ in the said will mentioned, and also two- third parts or shares of the residue of the real and personal estate of said testator invested and secured for their benefit respectively, pur- suant to the directions of the said will ; And your oratrixes being so Application to entitled- as aforesaid, have caused many applications to be made to defendants. the said trustees and executors, and have requested them to coipe to a just and fair account with your oratrixes for the personal estate and effects whereof the said testator died possessed and of the pro- duce thereof and of the moneys arising therefrom, and of the rents and profits and purchase-moneys of his real estates received by or for the use of the said trustees and executors, and to pay to your OF WILLS INTO EXECUTION. 225 oratrix A. H. M. her said legacy of £ , and that the clear re- sidue *of said testator's estate might be ascertained and placed out [ *226 ] and secured for the benefit of your oratrixes as they are respectively entitled thereto, pursuant to the said will, and that the trusts of the said will might be carried into execution ; with which just and reasonable requests your oratrixes well hoped that the said defendants would have complied, as in justice and equity they ought to have done. But now so it is, &c. [see form 1Y. p. 5.] Pretence that no will was made, and that the personal estate was insufficient; [Charge the contrary, ut antea, p. 219.] And the said W. M. R. M. and N. M. who pretend to be the said testator's co-heirs at law, Pretence that sometimes pretend that the said will was not so executed and attested *''^ ^'^J '^'^^ as to pass freehold estates of inheritance, and that the said testator's puted and real estates did not pass thereby, but descended to them as testator's that the real heirs at law, and they threaten that they will dispute the validity of estates des- the said testator's will ; and at other times the said defendants ^e^rs^at law. will admit the validity of the said defendant's will, but then they together with the said A. M. pretend, that notwithstanding they the said W. M. R. M. and N. M. claiming as the co-heirs at law of the said testator did enter into and upon the aforesaid copyhold estate which the said testator had not surrendered to the use of his will, and did claim and take the same to and for their own use and benefit, yet that the said defendants W. M. R. M. A. M. and N. M. are never- theless respectively entitled to the several legacies and provisions which the said testator intended them by his said will ; Whereas your oratrixes charge that forasmuch as it appears by the said will Charge that to have been the manifest intention of the said testator, that the ^^^ dcfend- said copyhold estate, though not in fact surrendered, should pass ^^j^g at'^ia^." to the uses of his said will, the said W. M. R. M. and N. M. by by claiming' claiming and taking the said copyhold estate to and for their own and taking the use, and thereby defeating the intention of the said testator, have edTopyhold' forfeited all benefit and advantage which the said testator by his estate, have said will intended to or in favor of them or either of them or their forfeited all wives or children. And your oratrixes further charge that the said benefits under W. M. I. M. and 0. C. threaten and intend to pay or secure to or in favor of the said R. M. A. M. and N. M. and also to the said W. M. all and every the legacies and benefits by the said will intended them. All which actings, &c. [see form VI. p. 5, interrogating to the stating and charging pai-ts.^ And that the said will and codicil of the said testator may be esta- Prajer. blished and the trusts thereof performed and carried into execution ; and that the said W. M. R. M. and N. M. the co-heirs at law of the said testator, by claiming and taking to and for their own use and benefit as aforesaid the copyhold estate which the said testator had not surrendered to the use of his will, may be declared to have forfeited the several legacies and provisions which by the said will were intended them. And that an account may be taken of the personal estate and efi"ects of the said testator, and of the rents and profits of his real estates, and of the moneys arising from the sale thereof which have come to the hands of the said executors and trustees or any of them, or to the hands of any other person 226 BILLS TO CARET THE TRUSTS or persons by their or any of their order or for their or any of [ *227 ] *their use ; and also an account of the said testator's debts legacies and funeral expenses ; and that such personal estate may be applied in a due course of administration, and in particular that the afore- said legacy of £ may be decreed to be paid to your oratrix A. H. M. ; and that the clear residue of the said testator's estate and effects may be ascertained, and together with the said sum of £, in the said will given to your oratrix J. W. during her life may be placed out and secured for the benefit of your oratrixes, ac- cording to their several and respective rights and interests therein, pursuant and agreeably to the trusts of the said will ; and that for those purposes all proper directions may be given. \_And for fur- ther relief, see form Ylll. p. 5.'] May it. please, &c. [_see form No. 1,^.6.] LXXIV. Bill hy legatees entitled to the testator's residuary estate in fifths, against the executors and trustees of the will ; — Praying to have the trust of the will carried into execution, the accounts taken of the personal estate, debts, ^o. and the rents of the real estate ; — that the estates remaining unsold may be sold under the direction of the court, and that the trustees may be charged with the losses occasioned by their not investing the produce of certain estates sold by them according to the trusts of the will; — that the clear residuary estate may be ascertained and secured, and that the widow may sign an inventory of the furniture bequeathed for her use during her life. Humbly complaining show unto your lordship your orators and oratrixes J. A. of, &c. S. P. of, &c. widow, E. U. of, &c. spinster, R. A. of, &c. widow, and Gr. T. W. of, &c. and A. his wife. That K. A. late of, &c. duly made and published his last will and testa- ment in writing bearing date, &c. which was executed and attested as by law is required for passing real estates by devise, and thereby, after giving two pecuniary legacies, the said testator gave devised and bequeathed all his estates and effects as well real as personal whatsoever and wheresoever and of what nature kind or quality soever unto his brother your orator J. A. and his friends W. U. of, &c. and W. H. of, &c. and S. S. of, &c. two of the defendants hereinafter named their heirs executors administrators and assigns [upon trust to sell all his real estate, and in so doing to give a •preference to his relations, and out of the produce to pay debts and legacies, ^c. and to invest 1., to be payable to his niece A. U. at twenty-one or marriage, who afterwards died in testator's life- time, to pay his wife an annuity of 1, and as to 1, for such ■ persons as his wife should appoint; and as to the remainder one-fifth to his nephew J. A. another defendant, and S. P. the children of Ms brother R. A. ; one-fifth to his nieces, plaintiffs, IE. U. and R. A. and A. U. ; who died in testator's life-time ; one-fifth to plaintiff J. A. ; one-fifth to the children of his brother R. A., and the re- OF WILLS INTO EXECUTION. 227 maining fifth part to the children of his sister M. then the "^wife [ *228 ] of W. N'.'\ And your orators and oratrixes further show unto your lordship that the said testator afterwards duly made and pub- lished a codicil in writing to his will hearing date &c. and exe- Codicil, cuted, &c. and thereby after reciting, &c., [^appointed J. R. of, ^c. J. K. of, ^c. two other defendants, and his wife 8. A., executors instead of those mentioned in said will; and stating that he had pur- chased some lands, directed them to be sold to pat/ debts and lega- cies, ^c. and the overplus to be placed out at interest and gave to his wife the interest thereof and the use of the furniture, and cows and horses for her life, and after her decease the principal to be paid to his nephews and nieces as directed by the will.'] As in and by, &c. And your orator and oratrixes further show unto your lordship that the said testator K. A. departed this life on or about without Death of tes- issue, and without having altered or revoked his said will other than *^'°'' '^?^'^^. by the said codicil, and without having altered or revoked his said ^j. j^'^ codicil, leaving his nephew the said J. A. one of the defendants hereinafter named, who was the only son of the said R. A. the elder brother of the said testator, his heir at law; and thereupon the said S. A. the widow of the said testator, another defendant hereinafter named, and the said J. R. and J. K. the executrix and executors in the said codicil named, duly proved the said will and codicil in the Probate by the proper Ecclesiastical Court and undertook the executorship thereof, executrix and and by virtue thereof possessed themselves of the personal estate and effects of the said testator to an amount and value much more than sufficient to pay and satisfy his funeral expenses just debts and legacies ; and the said S. A. J. R. and J. K. also entered into the possession of the freehold and leasehold estates of the said testator, or into the receipt of the rents and profits thereof. And your Title of plain- orators and oratrixes further show unto your lordship that your tiffs. orator J. A. bath not nor had at the death of the said testator any child and that your oratrix A. W. was at the death of the said tes- tator the only surviving child of the said testator's brother R. A. and as such is sole legatee of one-fifth of the said testator's residuary estate ; and that W. N. the younger who survived the said testator but is since dead, and T. N. of, &c. another defendant hereinafter named, were at the death of the said testator the only surviving children of the said testator's sister M. and as such were legatees as tenants in common of one other fifth part of the said testator's said residuary estate. And your orators and oratrixes further show that the said W. N. the younger had before his death attained his age of twenty-one years, and that he duly made and published his last will and testament in writing and thereby appointed his said brother, the said defendant T. N., and J. H. of, &c. and S. H. of, &c. two other of the defendants hereinafter named the executors thereof, who have duly proved the same in the proper Ecclesiastical Court, and are thereby become the legal personal representatives of the said W. N. And your orators and oratrixes further show that the That one- said A. U. afterwards A. L. one of the nieces of the said testator, third of one- having died in his life-time, the one-third of one-fifth part of the ^/^^"/y^gJt; said testator's said residuary estate bequeathed to her as aforesaid lapsed, and 228 BILLS TO CAERT THE TRUSTS became devi- became lapsed. And your orators and oratrixes further show that eible amongst ygm- orators and oratrixes except your orator Gr. T. W. are the next ofthTtestato'r'! *°^ ^^^ of ^^^ Said testator, and were with the said W. K the youn- r *229 1 S®"" eform No. 1, p. 6.] E. S. Pray subpoena against I. Cr. and U. his wife, B. 8. and J. S. Cr. LXXVI. Bill on behalf of infants to carry the trusts of a ivill into execution and to have the rights of parties declared ; — The widow having elected to take under the will. — Prayer for an account of the personal estate, and rents of the real estate received by the ex- ecutors, and that they may be charged with interest for balances in their hands — also for an account of debts, Sfc. — for an injunc- tion to restrain the executors from receiving any further personal estate or rents — for a receiver — and for the appointment of a guar- dian for the plaintiffs. Humbly complaining show unto your lordship your orators and oratrixes R. M. W. M. H. M. I. M., &c. &c. infants, by A. B. of, &c. their next friend. That P. M. late of, &c. was at the time of making his will hereinafter mentioned and at his death seised in fee-simple of or otherwise well entitled to divers freehold messuages lands tene- ments hereditaments and premises situate, &c. and was also possessed of interested in or well entitled to a considerable personal estate, and that the said P. M duly made and published his last will and testa- The will. ment in writing, bearing date on or about, &c. which was executed and attested as by law is required to pass real estates, and was amongst other things in the words and figures or to the purport and eifect fol- lowing [stating the wiil.~\ And your orators and oratrixes further show Death of tes- that the said testator departed this life on or about, &c. without alter- t^*".'" leaving ing or revoking his said will, leaving R. D. M. now of, &c. and one of ^^-^^ ^^ j^^^ the defendants hereto, who was then an infant, but hath since attained ^vho has since his age of twenty-one years, his eldest son and heir at law. And your attained orators and oratrixes further show that P. M. of, &c. W. M. of, &c. '^^enty-one. and I. D. of, &c. who were the executors and trustees in the said will named, and are three other defendants hereto, upon or soon after the death of the said testator duly proved the said will in the proper Ec- Probate of the clesiastical Court and took upon themselves the execution thereof and will. possessed the personal estate and eifects of the said testator to a great ''"'^.'^'j, *'j®^ ^^®" amount, and the said defendants also entered into the possession of the possessed^the real estates of the said testator, or into the receipt of the rents and personal es- profits thereof, and have ever since continued and now are in such tate and rents possession or receipt. And.your orators and oratrixes further show °J^*® ""^^^ ^^" that M. M. of, &c. another defendant hereto, the widow of the said ,J,^^^^ ^j^^^ testator, hath elected to take the provisions intended for her by the has elected to 234 BILLS TO CAKKT THE TRUSTS take under the said will in lieu and bar of dower. And your orators, and oratrixes '^'^^- further show that very large sums of money have been received by Jutols'havr' *^® defendants the executors and trustees of the said testator from received large his reaf and personal estate which have not been laid out and in- [ *235 ] vested *upon the trusts of the said will, and in particular your orators Q„m»r,fmnnp^ ^ud oratrlxcs show that the said I. D. hath now in his hands a ba- from the real lance due to the said testator s estate oi the sum or Jj and up- and personal -vyards. And your orators and oratrix'es also show that the said P. M. estate. ^^^ j^ j^ ^^ ^^ about the year sold the shares and interest of the'''execu°tors ^he Said testator in two ships called, &c. to H. C. and W. I. of, &c. has a balance for the sum of £ for which they took the bond of the said in his hands. H. C. and W. I. bearing interest at £o per cent. And your orators That two of and oratrixes further show that the said 1. D. who is in possession soMtestaWs of ^^^ said bond hath give notice to the said H. C. and W. I. to shares in cer- pay to him the principal and interest due on the said bond on the tain ships, and day of , which principal and interest will amount to the took a bond ^^^ ^f £ ._ . ^^^ ^j^g g^^j^j j_ j)_ intends to receive the said sum amount and of £ , and to retain and apply the same to his own use. And one intends to your orators and oratrixes charge that the said will of the said testator receive the ought to be established and the trusts thereof performed and carried money. j^^^ execution by and under the decree of this honorable court, and trusts of the ^^^^ some proper person ought to be appointed by this honorable court will ought to to collect the outstanding personal estate of the said testator, and to be performed receive the rents and profits of his real estate. To THE end, &;c. [see ^"'^olntwi'^'^'' /<"■»» VI. p. 5, interrogating to the stating part.'] p gj. And that the said defendants may answer the premises ; and that the said will of the said testator may be established and the trusts thereof performed and carried into execution by and under the decree of this honorable court, and the rights and interests of your orators and ora- trixes under the same may be declared and secured: And that an ac- count may be taken of the personal estate of the said testator, and of the rents profits and produce of the real estate which have been pos- sessed or received by the said defendants P. M. W. M. and I. 1). or either of them or by any other person or persons by their or either of their order, or for their or either of their use, and that in the taking of such account the said defendants may respectively be charged with in- terest for such balances as shall appear to have been in their hands from time to time, and that what shall be found due from the said de- fendants may be secured in this honorable court for the benefit of all parties interested therein; And that an account may be taken of the funeral expenses debts and legacies of the said testator, and that the same may be paid in a due course of administration ; And that in the meantime the said defendants the executors and trustees of the said testator may be restrained by the injunction of this honorable court from receiving any further part of said testator's personal estate, or of the rents profits or produce of his real estate ; And that some proper person may be appointed by this honorable court to receive and collect the outstanding personal estate of the said testator, and to receive the rents and profits and produce of his real estate. And that some proper person or persons may also be appointed the guardian or guar- dians of your orators and oratrixes with suitable allowances for their OF WILLS INTO EXECUTION. 235 maintenance and education. [And for further relief see form VIII. p. 5.] May it please, &c. [see forms No. 1, and 4, p. 6.] J. L. *LXXVII. Bill hy residuary legatees {some of them infants) to have [ *236 1 the residuary estate ascertained and secured for their benefit ; — testator's widow being entitled to certain articles for her life, the bill prays that an inventory may be signed by her and deposited with a master. Humbly complaining show unto your lordship your orators and oratrixes P. J. of, &c. and A. his wife, and E. J. W. H. J. P. K. J. M. S. and S. J. infants under the age of twenty-one years, by the said P. J. their father and next friend. That W. H. late of, &c. duly made and published his last will and testament in writing bearing date on The will. or about , and thereby amongst other things gave and bequeathed in the words and figures or to the purport and effect following (that is to say): bequeathing all his personal estate to his wife for life and afterwards to the plaintiffs.^ And your orators and oratrixes further show that the said W. H. afterwards made a codicil to his said will Codicil. in his own hand- writing and bearing date on or about and in the words and figures or the purport and effect following (that is to say :) [bequeathing to his son R. K. H. 1, after the death of his wife.'] As in and by the said will and codicil or the probate thereof refer- ence, &c. And your orators and oratrixes further show that the said Testator's testator departed this life on or about without having altered or death. revoked his said will except so far as the same is altered by the said codicil and without having altered or revoked his said codicil. And your orators and oratrixes further show that S. H. the widow of the said testator and the said W. B. and T. 0. the executors in his That the exe- said will named and all defendants hereto, have duly proved the cutors proved said will and codicil in the proper Ecclesiastical Court and taken poss^ased°the upon themselves the executorship thereof, and by virtue thereof have personal es- possessed themselves of the personal estate and efi'ects of the said tate. testator to a large amount and value and greatly more than sufficient to pay and satisfy his just debts funeral expenses and legacies. And your orators and oratrixes further show that your oratrix A. J. is the daughter of the said testator in his said will mentioned, and that your orator-and oratrixes (the names) are the only children of the said A. J. and your orator P. J. And your orators and oratrixes further show unto your lordship that they have by themselves and their agents repeatedly applied to the said S. H. W. B. and T. 0. Applications. and have requested them to come to a full and true account with your orators and oratrixes for the personal estate and efi'ects of the said testator and to secure and invest the residue and clear surplus of the said testator's personal estate for the benefit of your orators and oratrixes according to their respective rights and interests therein. And your orators and oratrixes well hoped that the said defendants would have complied with such your orators' and oratrixes' reason- 20 236 BILLS TO CARRY THE TRUSTS able requests as in justice and equity they ought to have done. Pretence that BuT NOW SO IT IS, &c. [see form IV. p. 5.] And the said de- the personal fendants pretend that the personal estate and effects of the said estate was in- ^_ jj_ ^^^.^ gj^^^jj ^^^ inconsiderable and not more than sufficient [ *237 ] *);o pay and satisfy his funeral expenses debts and legacies, and that sufficient and ^hey have applied all such personal estate and eifects in a due course has"be^en''ap! ^^ administration. Whereas your orators and oratrixes charge the plied. contrary to be true and so it would appear if the said defendants Charge the would Set forth as they ought to do, a full and true account of all contrary. and every the personal estate and effects of the said testator which have been possessed or received by them the said defendants or either of them or by their or either of their order or to their or either Charge that of their use and of their application thereof. And your orators and an inventory oratrixes further charge that the said defendants ought to make out of the effects ^^ inventory of the said testator's household goods furniture and to "Which the . "^ ,* -,-,■,-, -, t • i n widow was implements of household plate, china-ware and ware generally so entitled forlife called and household linen, and which inventory ought to be signed °>°''d*b ''h ^y *^® ^^^^ ^' ^' ^"^^ deposited with one of the masters of this honor- afd'^depo^sited able courtfor the benefit of all parties interested therein. All which with a master, actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts.^ interroga- And that the said defendants may set forth a full true and just tories for the inventory and account of all and singular the goods chattels personal account of the gg^ate and effects whatsoever which the said testator W. H. was pos- personal es- t». ■• ■ -ii i • i-i-iii tate, and de- sessed 01 interested in or entitled to at the time ot his death, and fendant's ap- all the particulars whereof the same consisted, and the quantities plication qualities full real and true values of all and every such particulars ; ' And whether all or some and which of such particulars have not and when been possessed or received by or come to the hands of the said defendants or some or one and which of them or some and what per- sons or person by their or either of their order or for their or either of their use, and how and in what manner and when and where and by and to whom and for how much the same and every part thereof hath been sold and disposed of, and what parts thereof and to what value and amount now remain undisposed of and what is become Also for the thereof; And also a particular account of all and every the debts account of tes- whatsoever which were justly due and owing from the said testator a^ d"^'^ 1?-^?'^' ^^ *^® *'™® *^^ ^^^ death, and to whom and for what and on what main unpaid, securities, if any, the same were respectively due ; and whether any and what sums of money have been since paid in or towards the discharge of all or any and which of the said debts, and when and by whom and to whom and for what ; and whether any and what sums or sum of money do or doth now remain unpaid on account thereof. Frayer. And that the said defendants may answer the premises; and that an account may be taken of the personal estate and effects of the said testator possessed by or come to the hands of the said defendants or any or either of them, or to the hands of any other person or per- sons by their or any or either of their order or for their or any or either of their use ; and also an account of the said testator's debts funeral expenses and legacies. And that the said personal estate OF WILLS INTO EXECUTION. 237 may be applied in payment of the said testator's debts funeral ex- penses and legacies in a due course of administration. And that the residue and clear surplus may be ascertained and secured by and under the direction of this honorable court for the benefit of your orators and oratrixes according to their respective rights and in- terests *therein. And that the said defendants may make out an [ *2-S8 ] inventory of the said household goods and other eifeets specifically given to the said defendant S. H. for her life, and that such inven- tory may be signed by the said S. H. and deposited with one of the masters of this honorable court. \^And for general relief, see form VIII. p. 5.] May it please, &c. [^seeform No. 1, p. 6.] J. L. Pray subpoena against S. H. W. B. and T. 0. *LXXVIII. Billhy certain parties, entitled to two-thirds of testator's residuary estate against the other residuary legatee (the residuary legatees being also executrixes ;) — praying to have certain sums of stock transferred into the accountant-general' s natne, and one- third thereof carried over to the separate account of each of the residuary legatees ; (the object being to obviate the inconvenience of the different legatees joining with each other in receiving the dividends, the parties being remote from each other.) To, &c. Humbly complaining show unto your lordship your orator and oratrixes T. W. of, &c. and L. S. his wife, late L. S. W. spinster, and H. W. of, &c. widow, and C. W. and E. W. infants under the age of twenty-one years, by the said H. W. their mother and next friend, That J. T. late of, &c. gent, duly made and published his last will and testament in writing bearing date on or about the day of , and thereby amongst other bequests to your oratrixes H. W. and L. S. W. then L. S. W. he gave and bequeathed in the words and figures following (that is to say ;) " Also I give and be- queath unto the said H. W. S. A. and L. S. W. all my stock stand- ing in my name in the 3 per cent, reduced and 3 per cent, consoli- dated bank annuities, Upon, trust for them to receive the interest and dividends thereof to and for their separate and respective use and uses during their several and respective lives, without being subject to the debts control or engagements of their or any or either of their present or future husbands with whom they may happen to be married but for their own sole and respective use and uses. And it is my will and intention that my said two daughters and grand- daughter shall have the disposal of their respective shares of the said stock, notwithstanding their coverture, by will, betAveen the respective children of my said two daughters in such proportions and manner as they shall respectively think fit, and in case of failure 238 BILLS TO CARET THE TRUSTS of such disposal in their respective life-times then the third part or share of the said stock so bequeathed to my said daughters as afore- said shall go and be held upon trust for their respective children share and share alike. And as to the other third share of the said stock so bequeathed to my said grand-daughter in case she shall not [ *239 ] *dispose of the same by will, then the same shall be upon trust for her children, if any, or otherwise to go to her administrator." And after divers other bequests in his said will mentioned he appointed your oratrixes and S. A. executrixes of his said will. As by the probate copy of the said will when produced to this honorable court His death. will appear. And your orator and oratrixes further show unto your lordship that the said testator departed this life on or about the day of without having in any manner revoked or altered his said will leaving the sum of 3300?. 3 per cent, reduced annuities and the sum of 3100?. 3 per cent, consolidated annuities standing in his name The execu- at the time of his death. And your oratrixes and the said S. A. on trixes proved or about the day of duly proved the said will in the Pre- sesse^'lhem-' rogative Court of the Archbishop of Canterbury, and possessed selves of the themselves of his personal estate and efiFects, and paid all his debts personal es- funeral and testamentary expenses and legacies, and paid and di- tate, paid all yj(jg^ }jig residuary estate according to the directions contained in the debts, &c. ,..,.,,.? ^ ■ r- i i i j. • and divided his Said Will. And your orator and oratrixes lurtner snow that since the residuary the date of the Said will your oratrix L. S. W. hath intermarried estate. ^^(.jj y-Q^j. orator T. W. but hath not any children, and that the said Uie"iafntiffL ^- ^- ^^ *^^ ^^^^ °^ ^- ^- ^- ^^* ^^'^ "°* ^^^ children, and your S \y. ' oratrix H. W. hath issue your oratrixes hereinbefore in that behalf Marriage of named but no other children. And your orators and oratrixes fur- the defend- ther show unto your lordship that your oratrixes L. S. W. and H, ants. -^^ being entitled by the will of the said testator as hereinbefore siro'u's'of hav- n»entioned to the dividends of two-third parts of the said sums of ing their 3300Z. and 3100Z. stock to their separate use, your orator and ora- shares secured trixes are desirous of having their shares of the said stock ' secured thedefendants ^^ *'^'^ honorable court, but the said A. H. A. and S. his wife object object thereto, thereto. To THE END therefore that the said A. H. A. and S. his wife may, &c. [see form VI. p. 5, interrogating to the stating part.^ Prayer. And that the said defendant S. A. may be decreed to join your ora- trixes H. W. and L. S. W. in transferring into the name of the ac- countant-general the said sums of 3300Z. and 3100L now standing in the name of the said testator in the 3 per cent, consolidated and 3. per cent, reduced annuities, and that one third part of each of such sum may be carried to the account of your oratrix H. W., one other third part thereof to the account of your oratrix L. S. W., and the remaining third part thereof to the account of the said S. A., and that the dividends to accrue due upon the said several sums of stock to be carried to the several accounts aforesaid may be paid to your oratrixes H. W. and L. S. W. and the said S. A. respec- tively for their separate use during their lives. [And for further relief, see form VIII. p. 6.] May it please, &c. [see form No. 1, p. 6.] Pray subpoena against A. H. A. and S. his wife. OF WILLS INTO EXECUTION. *240 **LXXIX. Bill by legatees {some of them infants) entitled to one moiety of the residuary estate, and desirous of having the fund secured in court on account of the situation in life of the execu- tors ; — fraying to have the trusts of the will carried into execu- tion ;{p) Also for an account of testator s real and personal estate, and to have the clear residue ascertained and one moiety secured for the benefit of the plaintiffs ; — Praying also for an account of what is due from one of the executors in respect of moneys of the testatrix received hy him in her life-time ; — Also for payment of a weekly annuity given hy the will, and that the surplus income may he laid out to accumulate ; and for a receiver (Q) as to the rents of the freehold and leasehold estates. To, &c. Humbly complaining show unto your lordship your orators and oratrixes William J. of, &c. and Jane his wife, William C. of, &c. and Mary his wife, Matilda C. and William C. two of the children of the said William C. and Mary C, and also Samuel C, Mary C, the younger, Elizabeth C. and Charles C. infants under the age of twenty-one years by the said William C. their father and next friend, James J. of, &c., Isaac B. of, &c. and Elizabeth his wife late Eliza- beth J. and James J. the younger, your oratrix Elizabeth B. and your orator James J. the younger, being two of the children of your orator James J., and also William S. J., Joseph J., Henry J. Charles J., Ann J., Jane J. and Mary Ann J. infants under the age of twenty-one years, by the said James J. their father and next friend, George B. of, &c. and Jane his wife, George B. the younger, Ann B. and Eliza J. B. infants under the age of twenty-one years, by the said George B. their father and next friend, Aaron J. of, &c. and Elizabeth his wife, and Alfred J. and John J. infants under the age ^ of twenty-one years, by the said Aaron J. their father and next friend, That Mary C. late of, &c. spinster, being at the respective times of making her will and of her death seised of certain freehold Testatrix estates and possessed of leasehold and other personal property, and seised of free- being of sound mind memory and understanding, duly made and pub- ^"^j g^^tftig^' lished her last will and testament in writing executed and attested so to leasehold as to pass freehold estates by devise bearing date the day of and other per- , and thereby after certain specific bequests, she gave and devised ^""'^' proper- unto Edmund J. the elder, in, &c. wheelwright, and Francis J. his ^^^ ^^;j] son, all her freehold and leasehold messuages farms lands tenements (5) In Sherritl v. Birch, 3 Bro. Ch. Ca. 228, where a bill was brought for a moiety of a testator's residuary estate, the other moiety of which was given to A. (one of the defendants) for her life, and upon her decease to such persons as she should appoint, and in default of appointment to certain other persons who are not made defendants, yet although their interest was upon such a remote contingency tbey were held neces- sary parties ; and see Parsotis v. Neville, 3 Bro. 365. (6) The court will not appoint a receiver merely because an executor is poor or in mean circumstances ; secus, upon his misconduct ; Anon. 12 Ves. 4 ; Sowardv. Papera, 1 Madd. Bep. 142. 240 BILLS TO CARRY THE TRUSTS and hereditaments lying and being in, &c. aforesaid respectively or elsewhere, and also all her moneys securities for money stock in the [ *241 1 *public funds goods chattels and effects, and all other her real and personal estate whatsoever not thereinbefore given or disposed of, To hold the same unto the said Edmund J. the elder and Francis J. their heirs executors administrators and assigns, subject as to her personal estate to the payment of her just debts and funeral and testamentary expenses thereout, Upon trust that they the said Ed- mund J. the elder and Francis J. and the survivor of them, their heirs executors and administrators should from time to time let and set her freehold and leasehold messuages farms lands tenements and hereditaments with the appurtenances, to any person or persons for any term or terms of years not exceeding the term of seven years, at such rent or rents as they or he could reasonably procure for the same, and receive the rents issues and profits thereof, and also should either continue her said moneys which might be on security, or her stock in the public funds on the security wherein they might be vested at the time of her decease, or call in and receive the same and again lay out and invest the same, and also lay out and invest all other her moneys in or upon some or one of the public stocks or government funds of Great Britain, or upon some good and sufiicient security or securities of real estate or estates, with full power to vary the securities in manner therein mentioned ; And as to one moiety of her said trust estate and premises, Upon trust for the said Edmund J. the elder and Sarah Jones and Martha J. his sister, and also for the testatrix's cousins James Q. Joseph Q. and Sarah Q. to be divided equally amongst them, with benefit of survivorship amongst them in the event of the death of any of them in the life-time of the testatrix without issue ; and as to the other moiety of her said trust estate and premises. Upon trust that the said Edmund J. the elder and Fran- cis J. should receive the rents issues and profits interest dividends and annual produce thereof, and out of the same should pay unto .your orator and oratrix William J. and Jane his wife weekly during their joint lives the sum of 16s., and in case your oratrix Jane J. should survive her said husband William J. then to pay unto your oratrix Jane J. weekly during her life the sum of 12s., and as to the residue of the said rents issues and profits interest dividends and an- nual produce of the same moiety which should from time to time remain after payment of the weekly sums aforesaid. Upon trust to lay out and invest the same in or upon some or one of the stocks funds or other securities hereinbefore mentioned, and to receive the interest dividends and annual produce thereof, and again to lay out and invest the same in like manner so as to form an accumulating fund in the nature of compound interest, during the natural life of your oratrix Jane J. and to stand possessed of the same stock funds or other securities. Upon trust after the decease of your oratrix Jane J. to pay and apply the rents issues and profits interest dividends and annual produce of the same moiety of her said trust estates and premises, and of such stocks funds and other securities and accumulations as last aforesaid, unto and amongst the six children then living of your orator and oratrix William J. and Jane his wife, to be divided OF WILLS INTO EXECUTION. 241 equally amongst the same children for and during their natural lives respectively, share and share alike as tenants in common and not as joint-tenants, and as for *the share of William J. the younger, [ *242 ] plumber (one of the six children of your orator and oratrix Wil- liam J. and Jane his wife) from and after the decease of the said WilliasQ J. the younger. Upon the same trusts as are thereinbefore expressed concerning the other shares of the same moiety, or as near thereto as might be, and the deaths of parties change of interests and other intervening circumstances would admit; Provided always and Proviso that the said testatrix further willed and directed that the rents issues and JJ'^ ^^^^'^l °^ profits dividends and annual produce of the respective original parts gi^ouiii be in ' or shares of the four daughters, being four of the six children of your trust for their orator and oratrix William J. and Jane his wife, and also of the part separate use. or share of the said William J. the younger from and after his decease, of and in the same moiety of her said trust estate and premises and all accumulations thereof, should notwithstanding the trust thereof thereinbefore limited and declared for the benefit of the said four daughters, be held by her said trustees or trustee, Upon trust that the said trustees should from time to time during the respective lives of the four daughters of your orator and oratrix William J. and Jane his wife, receive the rents issues and profits interest dividends and annual produce arising from the said respective parts or shares of and in the same moiety of her said trust estate and premises, and stand possessed thereof respectively for the sole respective uses of the said four daughters of your orator and oratrix William J. and Jane his wife, separate and apart from their husbands, so as that the daughters should not charge or anticipate the same. And as for and concern- ing the same moiety of her said trust estate and premises and the accumulations thereof as aforesaid, from and after the several and respective deceases of them the said four daughters and the respective deceases of William J. the younger and of James J. the two sons of your orator and aratrix William J. and Jane his wife, then in trust for the .child if only one, and if more than one then all the children lawfully begotten and to be begotten of the said four daughters of the said William J. respectively, the child or children of each of the said four daughters to stand and be in loco parentis and to take per stirpes and not per capita, to be equally divided between or amongst the same respective children if more than one, share and share alike as tenants in common and not as joint-tenants, and the heirs executors administrators and assigns of the same child or children respectively ; and in case any one or more of such respective children should depart this life under the age of twenty-one years, without leaving any issue of his or their body or bodies lawfully begotten, living at his or their death or respective deaths, then as to for 'and con- cerning the original part or share parts or shares of and in the same moiety of her said trust estate and premises thereinbefore limited for the benefit of the said respective children, and also the part or share, parts or shares of and in the same moiety of her said trust estate and premises which should from time to time belong to or vest in or be taken by the same children re- spectively by virtue of this present provision in the nature of ^42 BILLS TO CARRY THE TRUSTS cross-remainders, Upon trust for the other or others of the same respective children to be equally divided between or amongst them, if more than one, share and share alike, as tenants in com- [ *243 ] *mon and not as joint tenants, and his or their respective heirs exe- cutors administrators and assigns ; and the said testatrix directed that the said trustees or trustee fot the time being of her said trust estate and premises should in the mean time from and after the several deceases of the several and respective tenants for life of her said trust estate and premises, until the part share or proportion thereby provided for any child of any one or more of such tenants for life should become payable or transmissible to him her or them respec- tively under or by virtue of the trusts aforesaid, receive the rents is- sues and profits interest dividends and annual produce of such part share or portion, and pay the •whole of such rents issues and profits interest dividends and annual produce, or so much as he or they re- spectively should think fit, to the guardian or guardians or person or persons who for the time being should be acting as the guardian or guardians of such child or children respectively, to the intent that he she or they respectively might pay and apply the same to and for the maintenance and education of such child or children respectively, ac- cording to his her or their presumptive part shares or proportions of and in her said trust estate and premises^ and in case such rents issues and profits interest dividends and annual produce should not be wholly paid and applied to and for the purpose hereinbefore-mentioned, then that the trustees or trustee for the time being, acting in the execu- tion of the said trusts should lay out and invest the surplus thereof at interest so as to accumulate in increase of the original shares, and Appointment she the said testatrix thereby nominated and appointed the said Ed- of executors. ^^^^^ j jj^g qI^q^^ and F. J. to be joint executors of her said last will and testament ; and the said testatrix thereby revoked and declared void all other wills by her at any time theretofore made. As in and by the said will and probate copy thereof when produced will more fully appear. And your orators and oratrixes further show unto your lord- Death of testa- ship that the said testatrix died on or about , and that she left trix, leaving Henry J. of, &c. her nephew and heir at law; and that upon her ft law ^"^ ^^" death the said Edmund J. the elder, and Francis J. duly proved her D V, t \ tt, said will in the proper Ecclesiastical Court, and entered into posses- rroDatebytne . „, i i iin ^ ■, '^ ^ executors who S'on 01 her real estates, and possessed themselves oi her personal entered into estate which was more than sufficient for payment of her debts funeral possession of g^j^^ testamentary expenses with a large surplus. And your orators tates and DOS- ^nd oratrixes further show unto your lordship that at the date of sessed all the the said will your orator and oratrix W. J. and Jane his wife had personal es- gj^ children living, viz. your oratrix Mary C. your orator James J. V f tvi 7°^^ oratrix Jane B. your oratrix Elizabeth J. the younger, and children inte- Annie the wife of Samuel J. the elder of, &c. ; and that your orators rested. and oratrixes Matilda C. Samuel C. Mary C. the younger, Elizabeth C. and Charles C. are the only children of your oratrix Mary C. ; and that your orators and oratrixes Elizabeth B. James J. William S. J. Joseph J. Henry J. Charles J. Ann J. Jane J. and Mary Ann J. are the only children of your orator James J. and that he has had only two other children, viz. Joseph J. who died an infant of tender OF WILLS INTO EXECUTION. 243 years and unmarried in the lifetime of the testatrix, and Francis J. who was born after the death of the said testatrix, and is since dead ; and that your oratrix Jane B. has issue your orator George B. the younger, and your oratrix Ann B. and Eliza J. B. and no other *children; and that your oratrix Elizabeth J. has issue your orator [ *244 ] Alfred J. and John J., and that she never had any other issue except certain children who all died under age and unmarried, and all of whom died in the life-time of the said testatrix, except one who has died since. And your orators and oratrixes further show that the said Ann J. the wife of the said Samuel J. died in the life-time of the said testatrix, and that Samuel J. the younger is her only child, and is thereby become entitled as he insists to a share of the said testatrix's property to take eifect immediately on the death of your oratrix Jane J. And your orators further show that the said Edmund J. That six of the the elder, Sarah J. Martha J. James Q. Joseph Q. and Sarah Q. defendants are n ,.1 • T ,, , , • 1 , ^ ■ -, , entitled to one all respectively survived the testatrix, and became entitled to one moiety. moiety of her estate. And your orator and oratrixes further show That one of that the said Edmund J. the elder at the time of her death was the executors indebted to the said testatrix in a considerable sum of money upon f^l 'f'^J^'H^ 1,1 c 1 1 1 •n-ni iTiinto the testatrix a balance ot account between them, the said Jidmund J. the elder for moneys having received considerable sums of money on account of the said received by testatrix in her life-time. And your orators and oratrixes further '^™ °" ^®'" ^°' show that your orators and oratrixes together with the said William m. ^ ' , . Tat_ 1C1 iTi ■ ^ 1 ' T A hat plain- J . tne younger and bamuel J . the younger are entitled to or interested tiffs, together in one moiety of the clear residue of the said testatrix's estate, and with two of entitled to have the same invested and secured for their benefit, and the defendants that the said Edmund J. and Francis J. have accordingly purchased oug moiety of and there are standing in their names on account of the share of the residuary such residue to which your orators and oratrixes are entitled some estate. considerable sums of stock. And your orator and oratrixes further '^Y* ^'vf ^^^" show that the said Edmund J. the elder and Francis J. are persons purchased in a humble situation in life, and possessed of little or no property, certain sums the said Edmund J. being a wheelwright in a small way of business, ofstocli. and the said Francis J. being his journeyman, and that it will be '^^'^^ ^^ .®^®" for the benefit of your orators and oratrixes that the fund to which l^ a huinWe they are entitled should be secured in this honorable court. And situation in your orators and oratrixes further show that the said Edmund J. l'fs> *e ^^'^^ and Francis J. have now in their hands considerable sums of money, se(nired°in ^ part of the residue of the said testatrix's estate and that they court. are in the receipt of the rents and profits of the said testatrix's That the exe- freehold and leasehold estates, and that for several years they cutors have retained in their hands and employed for their own benefit the in^heirhaiSg surplus income of that moiety of the said testatrix's estate in and are in re- which your orators and oratrixes are interested, after paying the ceipt of the said allowance of 16s. a-week to your orator and oratrix William r^ai and i*ease- J. and Jane his wife. And your orators and oratrixes further hold estates, show unto your lordship that they have both by themselves and and have for their agents applied in a friendly manner to the said Edmund J. the several years elder, and Francis J. to render unto them an account of what is due employed for to them in respect of the moiety of the property of the said Mary their own C. deceased, and to carry into execution the trusts of the said will, 'benefit the 244 BILLS TO CARET THE TRUSTS surplus in- come, of the plaintiffs' moiety direct- ed to be in- vested. [ *245 ] Applications to the defend- ants the exe- cutors. IV. Pretence that there is no surplus after payment of debts, &c. Charge the contrary. Charge that the executors have certain books, ac- counts, &c., and that they ought to de- liver up the same. That a receiv- er ought to be appointed. That the heir at law dis- putes the will, and that two defendants re- fuse to join in the suit. Interroga- tories for the account of the executors' re- ceipts and payments,' and of the property subsisting in specie ; Also as to books, ac- counts, &c. Prayer. But now so it is may it please your lordship that the said Ed- mund J. the elder, and Francis J. combining and confederating with the said Henry J. William J. the younger, Samuel J. the younger, Sarah J. Martha J. James Q. Joseph Q. and Sarah Q. and divers *other persons, &c. {see form Yl. p. 5,] absolutely refuse to comply with your orators' and oratrixes' said request ; and to countenance such refusals they pretend that there is little or no surplus of the said testatrix's estate after payment of her debts funeral and testa- mentary expenses. Whereas your orators and oratrixes charge the contrary, and that so it would appear if the said Edmund J. the elder, and Francis J. would set forth a full true and particular account of their receipts and payments oiJ account of the said testatrix's estate, and of the particulars of the property at present subsisting in specie. And your orators and oratrixes further charge that the said defend- ants have or lately had in their possession custody or power divers books accounts books of accounts letters copies of letters and ex- tracts of letters memorandums and writings relating to the matters hereinbefore mentioned, and that they ought to deliver the same to your orators and oratrixes, but they refuse so to do. (7) And your orators and oratrixes charge that some proper person ought to be appointed receiver of the rents and profits of the said testatrix's free- hold and leasehold estates ; And that the said Henry J. as the heir at law of the said testatrix, sometimes disputes her will, and the said William J. the younger and Samuel J. the younger refuse to join in this suit, To THE END therefore that, &c. [see form VI. p. 5, inter- rogating to the stating and charging 'parts.'\ And that the said defendants Edmund J. and Francis J. may set forth a full true and particular account of their receipts and payments on account of the said testatrix's estate, and of the particulars of her property at present subsisting in specie, and whether the said defen- dants or one and which of them have not or hath not in their or his possession or power divers or some and what books accounts books of accounts letters copies of letters and extracts of letters memoranda and writings relating to the matters hereinbefore in that behalf men- tioned, or some or one and which of them, and that they or he may set forth a list or schedule thereof, and may leave the same in the hands of their clerk in court for the usual purposes ; And whether the said defendants or either and which of them have or hath now in their or his possession or power all such of the aforesaid particulars as at any time have or hath been in their or his possession or power, and if not, then that they or he may set forth what is become thereof, and in whose possession or power the same were when they or he last saw or heard of the same respectively ; And whether some proper person ought not to be appointed receiver of the rents and profits of the said testatrix's freehold and leasehold estates, or if not, why not. And that the said defendants may answer the premises ; And that the will of the said testatrix may be established, and the trusts thereof (V) It is a general rule that executors must deposit papers and writings in their hands for the benefit of the parties interested, unless there are purposes which re- quire that they should retain them; Freeman v. Fairlee, 3 Mer. 30. OF WILLS INTO EXECUTION. 245 performed and carried into execution ; And that an account may be taken of the real and personal estate of the said testatrix possessed by the said defendants her trustees and executory, or either of them, or by their or either of their order, or for their or either of their use, and of her debts funeral and testamentary expenses; and that an ac- count may be *taken of what was due to the said testatrix at the time [ *246 ] of her death from the said Edmund J. the elder ; And that the clear residue of the said testatrix's estate may be ascertained, and that one moiety thereof may be secured for the benefit of your orators and oratrixes, and of the said William J. the younger and Samuel J. the younger, according to their respective interests therein, and that the said annuity of 16s. per week may be paid thereout to your orator and oratrix William J. and Jane his wife ; and that the surplus in- come may be invested to accumulate, and that a receiver may be ap- pointed by this honorable court to collect and get in the rents issues and profits of the freehold and leasehold estates of the said testatrix M. C., and that what may appear due to your orators and oratrixes in respect of their moiety thereof may be paid into this honorable court for the benefit of your orators and oratrixes. And that your orators and oratrixes may have such further and other relief in the premises as to your lordship shall seem meet. May it please, &c. [see form No. 1, p. 6.] *LXXX. Bill hy legatees against the testator's widow and executrix and devisee in trust under Ms will, {her co-executors and trustees having renounced and disclaimed the trust;) — Praying to have the trusts of the will carried into execution, and the accounts taken of testator's personal and real estates, and of his debts, legacies, ^e. — The bill charging the defendant with having misapplied the tes- tator's property in continuing to carry on his trade and otherwise, also prays for an account of what is due from her, for a receiver to collect in the outstanding personal estate, and to have the same sold and invested on the trusts of the will ; for an injunction to restrain the defendant from receiving the outstanding personal estate ; — also to have her removed from acting as a trustee, and for a reference to a master to appoint new trustees. To, &c. Humbly complaining show unto your lordship your oratrixes and orators M. Till otherwise Tile of, &c. spinster, P. Till otherwise Tile of, &c. W. Till otherwise Tile of, &c. gentleman, S. Till other- wise Tile the younger of, &c. spinster, and J. Till otherwise Tile, an infant under the age of twenty-one years or thereabouts, by your orator F. Till otherwise Tile his brother and next friend. That W. Till otherwise Tile, late of, &c. tea-dealer was at the respective times of making his will and of his death hereinafter mentioned, seised and entitled in fee-simple of and to divers messuages lands 246 BILLS TO CAKRY THE TRUSTS tenements and hereditaments, and was at the same time possessed of and entitled to a considerable personal estate, consisting of a large and valuable stock in trade book and other debts cash in hand and other effects of large amount in the whole ; and that being so seised possessed and entitled, and being of sound mind the said W. Till otherwise Tile duly made and published his last will and testament [ *247 ] *in writing bearing date the day of , and which was so executed by him and attested as by law is required for passing real estate by devise; and that thereby after bequeathing certain specific legacies as therein mentioned, he gave all his household goods plate linen china and household furniture to his wife Sarah (the defendant hereto) for her own use and benefit, and in every event during her life to be at her own disposal, either by her last will and testament in writing or any note or memorandum in writing under her hand or signed by her, whether witnessed or not ; and in default of such disposal, and as to any part which should not be disposed of, it was his will that the same should fall into and be considered as part of the residue of his estate. And as for and concerning his real estate, and as for and concerning any estate and property wherein or whereto he should have any interest right or title at the time of his decease, and not thereinbefore given or disposed of, the said testator didgive devise appoint and bequeath the same and every part thereof unto his executors and trustees therein and hereinafter mentioned their heirs executors administrators and assigns for ever, or for all his estate and interest therein, Upon the trusts nevertheless and to and for the several intents and purposes thereinafter expressed and de- clared of and concerning the same (that is to say :) Upon trust at the discretion of his executors and trustees or the survivors or survi- vor of them or the executors or administrators of such survivor, to make sale of his real estate and other property which should be in its nature saleable, or otherwise to set let manage employ and im- prove the same in such manner as his said executors or administra- tors and trustees or the survivors or survivor of them or the execu- tors or administrators of such survivor should in their his or her discretion think fit ; And upon further trust by and out of the moneys arising from such sale, or from or for any part of his per- sonal estate, and also by and out of his ready money and securities for money, or by all or any of those ways or means or by any other ways and means whatsoever which they or he or the survivors or survivor of them or the executors or administrators of such survivor should in their his or her discretion think fit, pay discharge and satisfy all such debts as he the said testator should justly and truly owe to any person or persons whomsoever at the time of his decease his funeral expenses and the charges of the probate of his will, and should lay out and invest the residue of the moneys in the public funds or at interest upon real or government securities, and might and should from time to time alter and transfer the said stocks and securities respectively as they should think advantageous, and might and should pay the dividends interest and yearly produce of such stock and securities, and also the rents issues and profits of his real estate or so much thereof as should be unsold, unto his said wife or OB WILLS INTO EXECUTION. 247 otherwise permit her to receive the same for the maintenance of herself and the maintenance education and bringing up of his child or children until his child or all his children should attain the age of twenty-one years; and when and so often as his child or all his children should attain the age of twenty-one years, he directed his executors and trustees or the survivors or survivor of them or the executors or administrators of *such survivor to divide the whole [ *248 ] residue of his property into two equal and distinct parts, and to ap- propriate such respective parts for the purposes therein and herein- after mentioned (that is to say :) As for and concerning one such part he willed and directed that the same should go and belong to and be equally divided amongst his children their respective heirs executors administrators and assigns for ever, or for all his right and interest therein ; but if any of his children should be dead leaving issue he willed and directed that the share of him or her respectively so dying should go or belong to or be equally divided amongst such issue, at such time or times and in such manner as his executors and trustees or the survivors or survivor of them his or her executors or administrators should think proper, although such issue or any of them might be then under age, but in case there should be only one or the issue of only one child then living, then to such only child or to or equally amongst such only issue his her or their heirs executors administrators or assigns for ever, or for all his right and interest therein respectively ; And as for and concerning the dividends inter- est and yearly produce of the other equal share, he willed and di- rected that his executors and trustees or the survivors or survivor of them or the executors or administrators of such survivor would and should pay the same to his wife for and during the residue of her life, or otherwise to permit her to receive the same, and after her decease the said testator willed and directed that such share should go and belong to his child or children or grand-child or grand-chil- dren then living or any one or more of them in such manner as his wife should direct and appoint, by any one or more deed or deeds writing or writings under her hand and seal executed by her in the presence of and attested by one or more credible witness or witnesses, or as his wife should direct or appoint by her last will and testament, or any writing in the nature of or purporting to be her last will and testament to be by her executed in the presence of three or more credi- ble witnesses, and to be attested in her presence by such three or more credible witnesses. And for want of such appointment and as to so much thereof as should not be appointed, he willed and directed that the same should go and belong and be equally divided amongst his children their respective heirs executors administrators and as- signs for ever, or for all his right and interest therein ; but if any of his children should be then dead leaving issue then living, he willed and directed that the share of him her or them so dying should go and belong to and be equally divided amongst such issue at such time or times and in such manner as his executors and trustees or the survivors or survivor of them should think proper, although such issue or any of them might be then under age ; But in case there should be only one child then living and no issue of any 248 BILLS TO CARRY THE TRUSTS other, and in case there should be only the issue of one child then living, then to such only child or to or equally amongst such only issues his her or their heirs executors j,dministrators and assigns for ever, or for all his right and interest therein respectively ; But in case his wife should survive him but should die during the mi- nority of his only child, or during the minority of all or any of his children, then from and after the decease of his wife he willed and [ *249 ] *directed that his said executors and trustees or the survivors or sur- vivor of them or the executors or administrators of such survivor should stand possessed of such residue of the money which should arise from such sale or otherwise as aforesaid, and also of all his ready money securities for money and of the moneys which should arise or be made or gotten from or for any other part of his estate or effects as well real as personal, In trust for his child if only one, but if more than one, In trust for all and every his children equally to be divided between or amongst them share and share alike, the ^hare or shares of such child or children being a son or sons, to be paid or assigned and transferred to him or them as and when he or they should respectively attain his or their age or ages of twenty-one years respectively, and the share or shares of such of them as should be a daughter or daughters to be paid or assigned and transferred to her or them as and when she or they should severally attain her or their age or respective ages of twenty-one years or be married respectively, which should first happen, yet under the restrictions therein and hereinafter mentioned as to the share or shares of daughters respec- tively. Provided always it was his will and mind that if any such child or children being a son or sons should die without leaving lawful issue before he or they should attain his or their age or ages of twenty- one years respectively, or being a daughter or daughters should die before she or they should attain her or their age or ages of twenty- one years respectively and without leaving issue, then the share or shares as well original as accruing by virtue of that proviso of him her or them so dying, should from time to time go accrue and belong to and vest in the survivors or survivor or others or other of such children and to be paid or assigned and transferred to him her or them if more than one share and share alike, at such times or time and in such manner as therein and hereinbefore mentioned and ex- pressed touching his her or their original share or shares; And it was his will and mind that his said executors and trustees and the survivors and survivor of them and the executors and administrators of such survivor should in the mean time and until such share or shares of his child or children should become payable or transferable as aforesaid, by with and out of the dividends interest and rents or yearly produce of the share or shares of such child or children re- spectively, pay and apply such yearly and other sums of money as his executors and trustees or the survivors or survivor of them or the executors or administrators of such survivor should think proper in for or towards the maintenance and education of such child or chil- dren respectively, and should permit the surplus and residue (if any) of the dividends interest rents and yearly produce of the share or shares of such child or children respectively, to accumulate for the OF WILLS INTO EXECUTION. 249 benefit of such person or persons as should be entitled thereto by vir- tue of that his will ; And it was his will and mind in case his wife should die during the minority of his only child or during the mino- rity of all or any of his children, that it should and might be lawful to and for his executors and trustees and the survivors and survivor of them and the executors and administrators of such survivor, to pay and apply any part or parts *of the share and respective shares of [ *250 ] his child or children as aforesaid, for the putting of him or them to any business profession or employment or otherwise, for his or their preferment or advancement in the world, notwithstanding he or they should not have attained his or their age or respective ages of twenty- one years. Provided always and it was his will and mind that if his only daughter or any of his daughters should marry or be inclined to marry before her share should be actually paid or assigned and trans- ferred, then and in such case his executors and trustees or the sur- vivors or survivor of them or the executors or administrators of such survivor should and might before such payment or assignment and transfer should be made, insist upon and obtain a proper and suitable settlement to be made for such daughter or daughters respectively and the issue of such daughter or daughters respectively, in such man- ner and by such ways and means as his said executors and trustees or the survivors or survivor of them or the executors or administrators of such survivor should think reasonable ; And it was the said testa- tor's will and mind in case his wife should marry again in the life- time of his child or in the life-time of any of his children, then he willed and directed in lieu of the dividends interest and yearly profits thereinbefore directed to be paid to or received by his wife as afore- said, that his executors and trustees or the survivors or survivor of them or the executors or administrators of such survivor might and should pay the dividends interest and yearly produce of one-fourth part only and no more of the before mentioned residue unto his said wife for and during the then residue of her natural life, or otherwise permit her to receive the same; but it was his will that the same divi- dends interest and yearly produce should be for the sole use of his said wife, and separate and apart from any husband, and so that the same might not be under his control or subject to his debts forfeitures or engagements, and so that the receipt of his wife notwithstanding her coverture, or of the person or persons to whom she should appoint the same to be paid, might be good and effectual discharges for the money which should be expressed to be received, yet nevertheless so that his wife might not anticipate qharge or assign all or any part thereof ; And from and" after the decease of his wife he willed and directed that such last-mentioned fourth part and the dividends interest and yearly profits thereof should go and belong to or for the use of his child children and issue, in like manner as he had thereinbefore directed of and concerning the same residue and the dividends inte- rest and yearly profits thereof, in case his wife should die during the minority of his only child, or during the minority of all or any of his children, or as near thereto as might be and the circumstances of the case would admit ; and also from and after the marriage of his wife he willed and directed that the other three-fourth parts of such 250 BILLS TO CARRY THE TRUSTS residue and the dividends interest and yearly produce thereof should go and belong to or for the use of his child children and issue, in such manner as he had thereinbefore directed of and concerning the said residue and the dividends interest and yearly produce thereof, in case his wife should die during the minority of his only child or during the minority of all or any of his children, or as near thereto [ *251 ] *as might be and the circumstances of the case would admit ; and he willed and declared the provision made for his wife as aforesaid was to be in full for her dower or thirds at common law of in to or out of any part of the real estate to which he would be entitled at the time of his decease, or to which he had been or should be entitled at any, time during the coverture between them, and it was the said testator's will that his executors and trustees and the survivors or survivor of them and the executors or administrators of such sur- vivor might and should at such time or times as they he or she should in their his or her discretion judge to be fit and convenient, lay out and invest all or any part of the moneys arising from any real estates or from the residue or surplus of his personal estate so bequeathed to them as aforesaid, in one or more purchase or pur- chases of messuages warehouses buildings land or grounds either freehold copyhold or leasehold within or near L. or elsewhere in the said county of, &c. or within the county of Y. ; and upon such purchase or purchases being made he willed and directed that the purchased premises and the rents and profits thereof respectively should be upon such trusts and for such purposes and with under and subject to such powers and provisoes as declared concerning his real estate, and the moneys arising from the residue and surplus of his personal estate, and the rents dividends interest and produce thereof respectively, or so much or so many of them as should be then sub- sisting or capable of taking effect, his will being that his real estate from the time of his death and the real estate to be purchased as aforesaid, should from the time of the purchase be and be con- sidered as a fund and personal property and not as real property or in the nature of real property. And the said testator did give the guardianship of the person or persons of such of his children as should be under the age of twenty-one years at the time of his de- cease to his wife and his brother J. Till and his brother-in-law J. Till during the respective minority of his children; and the said Appointment testator nominated and appointed his said wife and the said J. Till of executors, and his brother-in-law J. Till executors and trustees of his will. As by the said will or the probate thereof reference being thereto had when produced will appear. And your oratrixes and orators further show unto your lordship that the said testator departed this life on or about without having revoked or altered his said will leav- ing S. Till otherwise Tile, his widow in his said will named, your orator F. Till otherwise Tile, his eldest son and heir-at-law, and your oratrixes and orators M. Till otherwise Tile, "W. Till other- wise Tile, S. Till otherwise Tile, the younger, and J. Till other- wise Tile, his only other children, all of them infants him surviving. Probate by his -A-ud that on Or about the said S. Till otherwise Tile his widow, widow. alone duly proved the said will in the Consistorial Court of the Death of tes- tator leaving a widow and five children. OF WILLS INTO EXECUTION. 251 Bishop of C. and thereby became and she now is his legal personal representative. And that some time after the death of the said Two of the testator his brother J. Till and his brother-in-law J. Till two of the executors re- executors and trustees in the said will named, duly renounced dUchiimerthe probate of the said will and they also renounced and disclaimed the estate devised estate by the said will devised in trust as aforesaid, and they never to them in '^in any manner acted in the trusts of the said will or possessed *™^'' themselves of any part of the estate and effects of the said testator. C *-^2 ] And that the said S. Till otherwise Tile, as such personal represen- Tlist the wi- tative as aforesaid, possessed, got in and received the personal estate dow possessed and effects of the said testator. And she also entered into the pos- ^^'"'l'^^^ of the session and receipt of the rents and profits of the real estates of the tate''fimi ve- said testator, and she hath ever since been and now is in such pos- ceived the session and receipt except as to such part of the said real estate as \^"^^ °* '^"^ hath been disposed of as hereinafter mentioned. And that such if." ''^*^"^^- personal estate and effects and rents and profits so possessed and ^-cre morT™^ received by the said S. Till otherwise Tile the elder as aforesaid than sufficient were to a large amount in the whole and very considerably more *° P"^' debts, than sufficient to pay and satisfy the funeral and testamentary ex- "' penses and debts of the said testator and the several pecuniary legacies given by his said will. And that by and out of the said That widow personal estate and effects and rents and profits so possessed by her ^^^ P'^''^ ^'''^ as aforesaid, the said S. Till otherwise Tile the elder duly paid [esTamental-y and satisfied all the said testator's funeral and testamentary ex- expenses and penses and the pecuniary legacies given by his said will and some legacies and of the debts of the said testator, but that the said S. Till otherwise w^„f *"''•'; ^ m'l 111 -11 i-iii fi • 1 1 ""' permitted I lie the elder permitted others ot the debts of the said testator and others to re- particularly the sum of 1040Z. which was due and owing by the ™^i" unpaid. said testator to one A. B. upon the note of hand of the said testator, Statement of and the sum of 2000Z. which was due and owing to one C. D. on ^"'^.'^ "^ ''';'., the security of a mortgage of a certain freehold house and premises ,«,' . . , ' belonging to the said testator situate in to remain unpaid, and retained the ' she retained in her own hands the remainder of such personal estate remainder of and effects after making the several payments hereinbefore men- '■'^'^ personal tioned, and which personal estate consisted amongst other par- mi ! -. . ticulars of the stock in trade of the said testator. And your ora- carried on the trixes and orators further show unto your lordship that the said trade of a tea- testator in his life-time and up to the time of his death carried deiiler,andhis on the trade or business of a tea-dealer in L. ; and that upon the continued the death of the said testator the said S. Till otherwise Tile took upon same on iier herself to carry on and she hath ever since continued to carry on °^'^ account the said testator's said trade or business on her own account and for ^^g personal her own benefit; and that she used and applied the personal estate estate in car- and effects remaining in her hands as aforesaid in carrying on O'ii^g o" the the said business in such manner as she thought proper and !,a™^,gnj J" never invested any part thereof upon the trusts of the said will ; debts con- and that in the course of carrying on such business as aforesaid traotedbyhcr. the said S. Till otherwise Tile became indebted to various persons in very considerable sums of money; and she from time to time paid such debts out of the said testator's personal estate remaining in her hands and hath thereby and otherwise wasted and misapplied 21 252 BILLS TO CARRY THE TRUSTS freehold es- tate in satis- iaction of a simple con- tract, debt. [ *253 ] That a mort- That she has the Same. And your oratrixes and orators further show that some conTgyed a time since the said A. B. required payment of the said debt or sum of d£l040 so due as aforesaid from the estate of the said testator, and that instead of satisfying such debt out of the personal estate of the said testator then in her hands or due from her, the said S. Till otherwise Tile the elder conveyed and assured a certain free- *bold house and premises situate in being part of the estate of the said testator in satisfaction of such debt ; and that the whole of gage debt still the said mortgage debt or sum of 2000Z. is still unpaid and due and paid""^ ^^' owing on the security of the said house and premises in afore- Tbat parts of ®*^'^- -^°*^ J^^^ oratrixes and orators further show that divers con- the personal siderable parts of the personal estate and effects of the said testator estate still re- are Still remaining in the hands of the said S. Till otherwise Tile the fendant's" ^^' ^^^^'^ ^^ Specie ; and she is very considerably indebted to the said hands in spe- testator's estate in respect of such parts thereof as have been ap- cie. plied by her in carrying on the said trade ; and that divers debts or That she is sums of money to a large amount in the whole are now due and ow- greatlyinde t j from her to Various persons which have been incurred by her in and embar- ». -ii i- ii i ■ i o ririi rassedand has carrying on the said trade or business ; and that the said b. iill otherwise Tile is in embarrassed and insolvent circumstances and totally unable to pay such debts any otherwise than out of the per- sonal estate and effects of the said testator now remaining in her hands; and she hath been applying and intends to continue to apply such personal estate and effects in payment of her own separate debts. And your oratrixes and orators further show unto your lord- ship that your oratrixes and orators M. Till otherwise Tile, F. Till otherwise Tile, W. Till otherwise Tile, and S. Till otherwise Tile, the younger, some time since attained their respective ages of twenty-one years ; and that your orator J. Till otherwise Tile is still an infant under the age of twenty one-years and that your oratrixes and ora- tors are desirous that the personal estate and effects of the said tes- tator or the produce thereof now remaining in the hands of the said S. Till otherwise Tile should be invested and secured ; and that the same together with the rents of said testator's said real estate now remaining unsold should be applied according to the trusts of the said testator's will. And your oratrixes and orators have frequently and in a friendly manner by themselves and their agents applied to the said S. Till otherwise Tile, and requested her to come to an account with your oratrixes and orators for the personal estate and effects of the said testator and the rents and profits of his real estate posses- sed got in and received by her and of her application thereof; and to invest and secure the residue of such personal estate and effects now in her hands, and to apply the income thereof together with the rents and profits of the said real estate now remaining unsold for the maintenance and support of herself and your oratrixes and orators pursuant to the trusts of the said will. And your oratrixes and orators well hoped that such requests would have been complied with as in justice and equity they ought to have been. Bdt NOW SO IT IS may it please your lordship that the said S. Till otherwise Tile the elder combining and confederating with divers persons, &c. [see form IV. p. 5,] hath refused to comply with the said requests, some- applied \he personal es- tate in pay- ment of her own separate debts. That several of the plain- tiffs have at- tained twenty- one. Applications to the defen- dant. IV. OP WILLS INTO EXECUTION. 253 times pretending that the personal estate and effects of the said tes- Pretence that tator and the rents and profits of his real estates have been small the personal and inconsiderable, and that the whole thereof hath been applied ^^^''^^ was in payment of the funeral and testamentary expenses and the pe- the\hole I'ns cuniaiy legacies given by his said will, and such of his debts as been applied. have been paid thereout, and that no part of the personal estate *and effects of the said testator is now in the hands of or due from [ *254 1 the said defendant. Whereas your oratrlxes and orators expressly Charge the charge the contrary of all such pretences to be true, and that the contrary to be said personal estate and effects and rents and profits so possessed by ^'^"^• the said defendant were of very large amount in the whole and con- siderably more than was required for payment of all the funeral and testamentary expenses and debts of the said testator (including the said two several debts of £1040 and ,£2000 respectively) and the pe- cuniary legacies given by his said will ; and that after making the several payments aforesaid, a very considerable part of the personal estate and effects and rents and profits remained in the hands of the said defendant; and that so the truth would appear to be if the said defendant would set forth such accounts as are hereinafter prayed for but which she refuses to do. And your oratrixes and orators charge that the said defendant was not possessed of any property except what she was entitled to under the said testator's will; and that the That defend- said trade or business of a tea-dealer was carried on by her solely ^^^ has car- with the property and effects of the said testator ; and that the whole '^'ifh^fh*™/^'' of the property and effects which is now in the hands of the said tator's proper- defendant belongs to or hath been produced by the personal estate ty. and effects of the said testator and the rents and profits of his real That the re- estate ; and that the same ought to be sold and converted into money "^'"'"^ '{[."j and invested and applied according to the trusts of the said will, be sold and But the said defendant being insolvent threatens and intends to the money in- apply such personal estate and effects now in her hands in payment ^^^''^'l- of the debts which have been incurred by her on her own account in carrying on the said trade, unless she shall be restrained from so doing by the injunction of this honorable court. And under the That a receiv- circumstances aforesaid your oratrixes and orators charge that a er ought to be proper person ought to be appointed to collect and receive the said ''ef°"'t*beou,. testator's personal estate; and that the said defendant ought to de- standing per- liver over the said personal estate now in her hands to such receiver, sonal estate, and ought to be restrained by the order or injunction of this honor- andthedefen- able court from collecting or receiving the outstanding personal ^^ therefrom. estate, and from paying away or parting with any part of the pro- perty and effects of the said testator now remaining in her hands to any person other than such receiver ; and that the whole of the per- That the re- J f . , ■ 1 , . , • • T 1 J? 1 maining per- sonal estate of the said testator now remaining undisposed oi, and sonai and real also his real estate remaining unsold, ought to be invested and se- estate ought cured upon the trusts of the said will for the benefit of the persons '° ^e invested entitled thereto under the said will. And your orators and ora- Q^^j^^^g^^^J^' trixes charge that the said defendant is a trader subject to the defendant Is a bankrupt laws and is now in danger of becoming bankrupt ; and trader and in that if she should become bankrupt the amount of what has become danger of be- due from her to the said testator's estate ought to be proved as a r°"t'.°^ ^''^'^^' 254 BILLS TO CARRY THE TRtJSTS That she ought to be removed from being a trus- tee. [ *255 ] That she has in her posses- sion divers books, &c. and ought to pro- ducethesame. Interrogato- ries as to books, &c. Prayer. debt against her estate, and some proper person ought to be ap- pointed to make such proof. And your orators and oratrixes charge that under the circumstances aforesaid, the said defendant ought to be removed from being a trustee under the said will, and that some proper person or persons ought to be appointed to act in her place. And your orators and oratrixes charge that the said defen- dant *hath now or lately had in her possession custody or power divers books books of account accounts memoranda papers and writings re- lating to the real and personal estates of the said testator and to the matters aforesaid, and whereby if the same were produced the truth of the matters aforesaid or some of them would appear ; and that she ought to produce the same, but she refuses so to do. All which act- ings doing pretences and refusals, &c. [see form VI. p. 5, interro- gating to the stating and charging parts.'] And whether the said defendant hath not now or lately had not in her possession custody or power divers or some and what books books of account accounts memoranda papers and writings, or some and what book book of account account memorandum paper or writing relating to the real and personal estate of the said testator or to some and what parts or part thereof, and to the matters aforesaid or some or one and which of them ; And whether thereby or by some or one and'which of them if the same were produced or otherwise and how the truth of the several matters aforesaid or some or one and which of them would not appear or how otherwise ; And that the said defendant may set forth a full true and perfect list or schedule of all and every the said books books of account accounts memoranda papers and writings ; and' may produce and leave such of them as now are or is in her possession custody or power in the hands of her clerk in court for the usual purposes, and may set forth what have or hath become of such of them as are or is not now in her possession custody or power. And that the said defendant may answer the premises, and that the said will of the said testator may be established and the trusts thereof performed and carried into execution by and under the de- cree of this honorable court. And that an account may be taken of all and every the personal estate and eifects of the said testator not specifically bequeathed, which have been possessed or received by or by the order or for the use of the said defendant or which without her neglect or default might have been received. And that an ac- count may also be taken of all and every the lands and hereditaments which the said testator was seised, and possessed of and entitled to at the respective times of making his will and of his death and of the rents and profits thereof which have or ought to have been received by the said defendant, and of the moneys which have been raised and received by or from the sale of the said lands and hereditaments or any part thereof. And that an account may be taken of all and every the funeral and testamentary expenses debts and legacies of the said testator. And that the said personal estate rents and profits and moneys may be applied in a due course of administration in payment of the said funeral and testamentary expenses debts and legacies. And that the amount of what is justly due and owing to the said tes- OP WILLS INTO EXECUTION. 255 tator's estate from the said defendant in respect of the said real and personal estate possessed by her may be ascertained ; and that she may be charged therewith and may be compelled to pay the same. And that the said testator's personal estate now outstanding and so much thereof as remain in specie may be collected and converted into money, and may be invested and secured on the trusts of the said will, and that some proper person *may be appointed to collect and [ *256 ] receive the said personal estate. And that the said defendant may be ordered to deliver up the personal estate remaining in her hands to such person, and may be restrained from collecting and receiving such parts thereof as are outstanding, and that the said defendant may be removed from acting as a trustee under the said will ; and that it may be referred to one of the masters of this honorable court, to appoint another person or persons to be trustee or trustees under the said will in the said defendant's place and stead. And your oratrixes and orators may have such further and other relief as the nature and circumstances of their case may require and unto your lordship shall seem meet. May it please your lordship, &c. [see forms JSfo. 1 and 4, p. 6.] Pray subpoena and injunction against S. Till otherwise Tile. LXXXI. Bill ly a trustee under a will, and legatees entitled under several wills to portions of a sum of stock standing in the account- ant-general's name, "produced hy sale of an estate, two fourth parts of a moiety whereof had been limited to T. 0. and A. his wife for their lives ; after their decease one-fourth to the appointment of T. 0. and the other fourth to the appointment of A. G.; In default of appointment to A.'s right heirs. T. C. was afterwards found a lunatic, and an act of parliament was obtained for sale of his estates ; he died without having experienced the power of appoint- ment ; A. 0. also died, hut having exercised the power reserved to her ; — the prayer is to have the will of A. Q. and the wills of seve- ral persons claiming under her, established — a transfer made to the plaintiff the trustee, and his co-trustee a defendant, of certain portions of the stock, and for a transfer of the remaining shares to the other plaintiffs ; there being a pretence alleged of a will made by the lunatic ; the bill also prays that an issue may be directed to try the validity thereof. States that by indenture bearing date , and made between A. Deed of cove- late the wife of T. C. gent, by the description of A. H. of, &c. widow, °^^* ^^ A; ^• W. C. and E. his wife, W. H. and F. his wife, and M. late the wife of ^"^ ^ T. C, which said A. E. F. and M. were the cousins and co-heirs at law of Lord L. baron of A. in the kingdom of I. then lately deceased, of the one part, and W. ?. of the other part, for the settling and assur- ing, &c. [being a deed of covenant to levy a fine by A. S. of one equal fourth part of the said manors, Sfc. to the use of A. H. in fee, and 256 BILLS TO CARET THE TRUSTS the other three-fourth parts to the appointment of W. 0. and E. his wife, int. al.] F'ne levied. That in pursuance of the said agreement a fine sur conusance de droit come ceo, §-c. was levied of the said manor and premises as of term in the year of the reign of his late Majesty King George the Second, in which fine the said A. H. &c. were the co- nusors and the said W. B. was the conusee. And that the said [ *257 ] *A. H. continued solely seised in fee in her own right of the said one undivided equal fourth part of said premises until her intermar- riage with T. C. of, &c. a lunatic, and since deceased. That the said A. H. intermarried with the said T. C. on , and the said M. intermarried with T. S. on the day of the same month of . And by indenture bearing date , and made be- tween said T. C. and A. his wife, and T. S. and M. his wife of the one part, and the said W.B. ofthe other part. {^Beingthedeedto levy a fine of a moiety of the premises comprised in the aforesaid indenture, to enure as to two-fourth parts of said moiety to the use of T. 0. and A. for their lives and the life of the longest liver, and after their de- cease, one of the said two-fourth parts to the appointment of T. Q. and the other to the aff ointment of A. and in default of such ap- pointments to A.'s right heirs, and as to the remaining two-fourth parts of said moiety to T. S. and M. his wife for their lives, in the same manner as limited to T. 0. and A.'] That in pursuance of said agreement a fine sur conusance, ^c. was levied of a moiety of said manors, &c. as of term in the year , in which the said T. C. and A. his wife and T. S. and M. his wife were conusors, and the said W. B. the conusee. And that the said T. C. and A. his wife by virtue of the said indenture of and of the said fine, became seised in fee of two-fourth parts of the said moiety of the said manors and premises. That the said T. C. having the misfortune to become disordered in his mind, a commission in the nature of a writ de lunatico inqui- rendo issued to enquire into his insanity, and by an inquisition taken thereon on, &c. it was found that the said T. C. was a lunatic, and that he did not enjoy lucid intervals so as to be sufficient for the government of himself and his estate. And that by virtue of a grant under the great seal of Great Britain, bearing date , the custody of the person of the said T. C. was granted to the said A. his wife, and the custody of his estate was granted to the said W. C. That the owners of the other parts of said premises were in the year desirous of having said premises sold, but in case the said other parts of said premises should have been sold separately from those belonging to said T. C. and A. his wife, the same would have been considerably diminished in value, and notwithstanding it was for the benefit of said T. C. and A. his wife and all persons who might claim any interest in the said one-fourth part of the said moiety of said premises belonging to the said T. C. that the said premises should be sold entire, yet by reason of the lunacy of said T. C. a good title could not be made- to a purchaser of the said one- fourth part of the said moiety of said premises belonging to said T. C. without the aid of parliament, whereupon application was in Commission of lunacy is- sued against T. C. OF WILLS INTO EXECUTION. 257 made to parliament for an act for that purpose, and by an act inti- tuled " An act for sale of the real estate of T. C. and A. his wife, Anactof par- and for laying out the money arising by such sale, in the purchase Uamcnt pass- of other lands and hereditaments for the benefit of said T. C. and ^fjftg'^'Jf '"'^ * A. his wife," duly made and passed in the year of his present ^ade of the Majesty's reign, it was amongst other things enacted that, &c. lunaiic's es- *That in pursuance of said act of parliament said premises were *'^'^^- in sold and conveyed to A. B. for £ — — , and after deducting [ *258 the expenses attending the procurement of the said act and sale, the Sale made and residue of the money arising by sale of the said two-fourth parts of ^^^ piirchase- monpv invest— the said T. C. and A. his wife was in pursuance of said act, paid into ed iiuhe funds the bank in the name of the accountant-general, and the same was iutheaccoun- afterwards by an order of laid out in the purchase of £ tant-gcneiai's 3 per cent, consolidated bank annuities, which were transferred to and are now standing in the name of the said accountant-general on the trusts in the said act mentioned, and the dividends thereof were applied for the benefit of said T. C. and A. his wife during their respective lives. That the said A. 0. departed this life on, &c. leaving said T. C. Death of A. c. her surviving, and the said F. H. widow and relict of said W. H. her Jf "'"? ^' ^'■ heir at law : and having first made her will in writing bearing date, &c. ^^^^ . "^"^ '* whereby after reciting the power and authority given to her by j.j(,j. '^;]j said indenture of , she by virtue thereof did give, &c. [a t?drd part of what she had 'power to dispose of to W. C. and E. his wife, and if they died in har life-time to the children of R. P. by E. his wife; the other third to W. H. and F. his wife, with the same limitation over in case of their deaths before the testatrix, and tlie remaining third she gave to said M. S. for life, remainder to the children of R. P. and said U. his wife, and appointed W. C. sole executor.^ That the said P. H. who survived the said W. H. her husband, Death of P. H. departed this life on, &c. leaving defendants E. T. widow and W. T. leaving E. T. her heirs at law, having first duly made her will in writing bearing ^"j^.^ ^j. j^;^^'^ date, &c. and thereby amongst other things devised, ka. [aU that she g^^ ^^.j[j ' was entitled to under the will of her sister A. Q. to W. 0. for life and after his death one-third of the moneys arising from the sale to be paid to M. B. M. one other third to T. S. and the remaining third to E. P. for life, remainder to all her children except M. F.'\ And appointed R. M. husband of M. B. M. and W. H. executors of her said will, who proved the same in the proper Ecclesiastical Court, and thereby became her personal representatives and paid all her debts. That the said W. C. who survived said E. his wife, died on, &c. Death of w.c. leaving T. M. his heir at law, having first made his will bearing leaving T. JI. date, &c. and thereby among other things gave and devised, &c. [all j!,'^'."^"' "' that he was entitled to under the will of A. C. to all the children of j^j^ ^,;j[ R. P. the elder as tenants in common'] and appointed W. H. and L. H. executors, defendants, who proved the same in the proper Ecclesi- astical Court, and paid all his debts. The said T. C. died on, &c. without ever having enjoyed any Death of the lucid intervals from the time of having been first found a lunatic, lunatic. 258 , BILLS TO CAERY THE TRUSTS Title of the and -witliout having executed such appointment as by said inden- plaintiffs. (.^-6 of, &c. he- was empowered to make ; and that said F. H. as heir at law of said A. C. being by virtue of the limitations contained in said indenture in favor of her right heirs, well entitled to one moiety of said 1, or the lands to be purchased therewith, and also to onethirdpartof the other moiety of the said sum of- Z. by virtue of said A. C.'s will, and having survived said W. H. her husband, [ *259 ] *such the rights of -said F. H. became under or by virtue of her said will (no appointment having been made by said T. C, vested in the plaintiff R. W. and defendant W. H. upon the trusts therein men- tioned ; and by virtue of the benefits contained in the wills of said A. C. and W. 0. the plaintiffs R. P. the younger, W. P., &c. &c. be- came entitled to the other two-thirds of a moiety of said 1, or the lands to be purchased therewith as in the said two wills particu- larly mentioned. That said E. T. is lately dead, leaving said defendant W. T. her heir at law, and also sole heir at law of said F. H. deceased. The stock still That Said 1. 3 per cent, annuities have not been laid out in remaining in ^;]^q purchase of any lands, &c. but are still standing in the name of an't-o-enerai's ^''^^^ accountant-general in trust in the said matter of A. B. the name. purchaser, and the dividends which have accrued thereon since the death of said T. C. up to, &c. amounting to 1., have been re- ceived by said accountant-general and placed to the credit of the said matter. And the plaintiffs being respectively interested in said 1, and the dividends thereof, "hoped to have had the said bank annuities and said dividends transferred and paid accordingly, and that no opposition would have been made thereto ; but that the said Pretence that defendants A. C. and T. C. object thereto, under a pretence that the lunatic they are interested in said stock and dividends, alleging that said T. w f„"'i^^I 1 C. before he became a lunatic, and on, &c. duly made his last will in oeioie uis iu- .... pi t -i ■ • tit nacy. writing in the presence 6f three subscribing witnesses, and thereby gave to them and to G. C. and H. C. who died in the life-time of T. C. 1, share and share alike, to be paid to them on the death of his said wife ;. and that said T. C. by said pretended will charged said one-fourth part of said moiety of said premises with the payment of said legacy, and that by virtue of said will which they allege is a due execution of the power reserved to him by said indenture of, &c. they are now entitled to be paid the said legacy of 1, out of said 1. 3 per cent, consolidated bank annuities. Charge the Charge the contrary, and that said T. C. never did execute any contrary, or if ^i]]^ or if he did such will was not duly executed and attested as re- stroyed'tbe' o|"ii"6d by said indenture of, &c. or as required by law for devising same. freehold estates, but if said T. C. ever executed such will and accord- ing to the terms of the power given him by said indenture of, &c. which plaintiffs do not admit, yet they charge that he afterwards de- stroyed or cancelled the same which the said defendants will some- times admit. Pretence that Pretence that he destroyed or cancelled the same during his in- he destroyed sanity. lunacy"" '^ Charge the contrary, and that if there ever existed such supposed will, the said T. C. destroyed or cancelled the same previously to his OP WILLS INTO EXECUTION. 259 lunacy, and whilst compos mentis and in some liicid interval. But Charge the even if the claim of said defendants could be substantiated, plaintiff contrary. R. M. and defendant W. H. allese that they are under said will of Claims set up • ^ "^ . Dv otn6r 0.6" said F. H. entitled in trust to all such part of said moiety as is not fendants. effectually disposed of by said will, and that the said W. T. who is heir at law of said F. H. and also of said A. C, and T. M. who is heir at law of said W. C. make some objection to said stock and divi- dends being so transferred, alleging that the wills of *said A. C. F. [ *260 ] H. and W. C. were not executed so as to affect their interest therein, and that they are respectively entitled to some shares or interests therein, and of the dividends thereof or of the lands to be purchased therewith. And the said T. M. as heir at law of said W. C. the trustee named in the said act, also makes some objections to such transfer without the decree of this honorable court. And that the said wills of the said A. C, &c. may be established, and that it may be decreed that the said accountant-general do trans- fer to plaintiff R. M. and defendant W. H. upon the trusts aforesaid, one moiety and also one-third of a moiety of said 1. 3 per cent., &c. and pay them a just proportion of said dividends accrued due thereon since the death of said T. C. and to accrue due thereon before such transfer, and that he may also transfer the remaining two-thirds of one moiety of said 1, and the dividends thereof to or for the use of the plaintiffs R. P. the younger, W. P., &c. in equal proportions ; and that in case any such will shall be pretended to have been made by said T. C. as aforesaid, then that an issue may be directed to try the validity thereof, and if such will shall be found on the trial of such issue to be valid, then that so much of said moiety as is not effectu- ally disposed of may be paid to plaintiff R. M. and defendant W. H. with the dividends thereof, upon the trusts aforesaid. [And for further relief see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] *LXXXII. Prayer to have a will established, and the trusts there- of carried into execution, offering an issue ; and in case such will should he found not duly executed {the testator having been of un- sound mind for some time previously to his death) then praying to have a formal will established — also for an account of the testator's freehold, copyhold, and leasehold estates, and personalty debts, and legacies, and of the rents and personal estate received by de- fendants ; Also for the appointment of new trustees in the room of those named in the testator's will, refusing to act ; Also for a receiver as to the outstanding personal estate, and the rents of the real and leasehold estates ; and for an injunction to restrain the defendants from receiving the same, or disposing of any part of the testator's property. And that the said will of the said testator bearing date 21st day of February may be established, and the trusts thereof per- formed and carried into execution under the direction and decree of 260 BILLS TO CARRY THE TRUSTS this honorable court ; and if necessary, that an issue may be directed to try the validity of the said testator's will bearing date the 21st day of February , and that all proper and necessary directions may be given for that purpose ; and in case the said will of the 21st day of February shall be declared not duly executed by the said testator, then that all proper andnecessary directions may be given for establishing the said testator's will bearing date the 4th day of November , or for tryingthe validity thereof; and that an account may be taken by and under the direction and decree of this honorable [ *261 ] *court of the freehold copyhold and leasehold estates which the said testator was seised and possessed of or entitled to at the time of hils death, and also of his personal estate goods chattels and effects, and of his debts funeral and testamentary expenses and legacies ; and that an account may in like manner be taken of all such parts of the rents and profits of the said testator's real and leasehold estates, and of his ^ personal estate goods chattels and eifects as have been possessed by or come to the hands of them the said A. B. C. D. E.. E. C, &c. re- spectively and of their appropriation thereof; and that it may be re- ferred to one of the masters of this honorable court to approve of one or more proper person or persons to be a trustee or trustees of the estate and effects of the said testator under his said will, in the room and stead of the said J. P. and C. D., who refuse to accept the trusts thereof and to act therein ; and that one or more receiver or receivers may be appointed by this honorable court to collect get in and receive the outstanding personal estate and effects of the said testator, and the rents and profits of his real and leasehold estates ; and that the said A. B. and C. D. R. E. C. &c. respectively may be restrained by the injunction of this court from receiving or possessing themselves of the rents and profits of the said testator's real and leasehold estates, and from selling or disposing of the same estates or any part thereof, and also from collecting and receiving any outstanding personal estate and effects of or belonging to the said testator and from assigning sell- ing or parting with any part thereof, or any other personal estate and effects of or belonging to the said testator now in their custody possession or power, or of any person or persons in trust for them, or for their use. l_And for further relief. ^ *LXXXIII. Prayer of a bill to carry the trusts of a will into execu- tion, and to have the rights of all parties in the testator s real and personal estates ascertained — an account taken of the personal es- tates, debts, ^c. and to have the clear residue ascertained and in- vested — an aceount taken of the real estate — and to have the rents secured during plaintiff's minority — Also that certain defendants may elect, and that if they should elect to confirm the will, that they may do all necessary acts for that purpose, and if they should claim against the will, then that the benefits given to them by the will, may be secured for the plaintiff, or that he may be compen- OP WILLS INTO EXECUTION. 261 sated thereout for what he may lose hy such election ; and that a receiver may be appointed of the rents of the real estates. And that the said will and codicil of the said testator may be established, and the trusts thereof performed and carried into exe- cution, and that the rights and interests of your orator and of all parties under the same in the real and personal estate of the said testator may be ascertained and declared by the decree of this honorable court ; and that an account may be taken by and under the direction of this honorable court of all the personal estate and effects of the said testator and of the rents and profits of his real *estates come to the hands of the said defendants or any of them, or [ *262 ] by their or either of their order, or for their or either of their use, and also of the funeral expenses and debts of the said testator; and that the clear residue of the said testator's personal estate and effects may be ascertained, and that the same may be invested and secured for the benefit of your orator ; and that an account may be taken of the real estates to which your orator is entitled under the said will, and that the rents and profits thereof may be secured for your orator's benefit during his minority; and if the said defendants M. W. W. 0. W. R. B. and A. his wife or any of them shall appear to have any right to or interest in any of the estates which the said testator has disposed of or assumed to dispose of by his said will in favor of your orator, that it may be declared that they are bound to elect conformably to the will, or to renounce in favor of your orator the benefits given to them respectively by such wills ; and if they shall elect to confirm the will, that they may be de- creed to do all such acts as may be necessary for confirming your orator's title to the estates so devised ; and if they shall claim against the said will, that the benefits given to them respectively by the said will may be secured for your orator, or otherwise that he may be compensated thereout for what he may lose by the election of the said defendants to claim against the said will ; and that if necessary a proper person may be appointed receiver of the rents and profits of the said testator's real estates, with all usual directions. [_Andfor further relief] LXXXIV. Allegation of debts due on bond and to the crown. And the said defendants allege that the said testator was in his life-time and at the time of his death greatly indebted on bond and otherwise, and particularly that a large sum of money was due and owing from him to his Majesty in respect of the balance of the said testator's accounts as receiver of the land-tax and otherwise ; and his Majesty's Attorney-general on behalf of his Majesty claims a large debt to be owing to his Majesty on such account, but refuses to dis- cover the particulars of such debt, &c. 262 BILLS TO CAE.RT THE TRUSTS And that his Majesty's Attorney-general may answer and set forth whether any and what sum of money is now remaining due to his Majesty in respect of any and what debt or debts which was or were in any and what manner and on what accouot owing to his Majesty from the said testator at the time of his death ; And whether the whole or any and what part of such money was secured by any and what deed or deeds writing or writings, and when and by whom executed, and may set forth the dates and material con- tents thereof. [ *263 ] **LXXXV. Interrogatories /or an account of testator s real estates, the rental thereof, and incumbrances thereon — for an account of his personal estate, and the application thereof— for an account of debts and what remain due, and of books, accounts, ^c. Prayer to have the trusts of the will performed, an account taken of the personal estate, and the annual produce thereof, and of the tes- tator's debts, ^c. — that the personal estate may be first applied in payment of debts and legacies, and in case of a deficiency, that the same may be paid out of the rents of the real estate, or by sale of a sufficient part thereof — that an account may be taken of the an- nuities given by the will, and the arrears paid out of the rents of, or in case of a deficiency, by sale of a sufficient part of the residu- ary real estates, and for payment of the annuities according to their priorities — for a receiver as to the outstanding personal estate, and the rents of the real estate, and for an injunction to restrain the acting executor also residuary legatee, and the surviving trus- tee of a {term for raising the annuities, from collecting in the out- standing personal estate, and the rents of the real estate. Interrogato- And that the said E. H. and B. H. may set forth whether the said nes as to the testator J. H. was not at the time of his death seised or entitled in fee- and the rental simple of or to Some and what real estates, and may also set forth a thereof. full just and true rental and particular thereof, and where every part thereof is situate, and the yearly value of each particular thereof, and in whose hands the same and every part thereof now is, and under what yearly or other rents or rent ; And whether they the said de- fendants or some or one or which of them are or is not now and for some and how long time past and from and to what time have or hath been in possession or receipt of the rents and profits thereof or of some and what part thereof, or who by name now are or is, and for how long time have or hath been in possession and receipt of the rents and As to inoum- profits thereof, and by what right or title, and for whose life ; And brancesandin ^liat they may also set forth the names and places of abode of all and ■ every person and persons in whom any legal or equitable estate right or interest charge or incumbrance to in or upon the said real estate As to the rents or any parts or part thereof in possession reversion or remainder is ^°d X°^\ vested, and the particulars of such estate right title or interest charge received. o'^ incumbrance, and how and in what manner the same became vested in such persons or person, and under what deeds or deed writings or OF WILLS INTO EXEOOTION. 263 writing ; And that the said defendants E. H. and B. H. may set forth a full true and particular account of all and every sum and sums of money which have been received by them or either of them or any other person or persons by their or either of their order or for their or either of their use, for or in respect of the rents and profits of the said estates or any part thereof, which have become due since the death of the said testator J. H. and when and by whom and for Avhose use, and from and for what rent and of what part of the said estates and premises, and when due, all and every such sums were respectively received; And that the said defendant E. H. may set Astotheper- forth a full just and true inventory and account of all and singular sonal estate, the goods and chattels personal estate and effects whatsoever, *which r *264 1 the said testator was possessed of entitled to or interested in at the time of his death, and all the particulars whereof the same consisted, and the quantities qualities full real and true values thereof, and of every such particular ; And whether all or some and which of such particulars have not and when been possessed or received by or come to the hands of him the said defendant E. H. or some and what per- son or persons by his order or for his use ; and how and in what And the appli- • manner and when and where and by and to whom and for how much '^^^^°" thereof, the same and every or any and what part thereof hath been sold and disposed of; And whether any and what parts thereof and to As to the a- what value or amount now remain undisposed of, and what is become ™°^'^*' uadis- thereof ; and also a particular account of the debts which were justly ^"^^ ° ' due and owing from the said J. H. at the time of his death, and to ^„e f^o^ \i,g whom and for what and on what securities (if any) the same were testator and respectively due; And whether any and what sums of money have on what secu- been since paid in or towards the discharge of all or any and which "u^t'il'L„;„ of such debts, and when and by whom and to whom and tor what ; due. And whether any and what sums or sum of money do or doth now remain unpaid on account thereof; And whether the said E. H. and As totitlc- B. H. or one and which of them have or hath not now or had not deeds, ac- lately and when last in their or one and which of their possession or '^""^ ^' '^' power, divers or some and what title-deeds evidences and writings deed evidence or writing of or relating to the said real estates or the title thereto ; And whether or not divers or some and what accounts books of account letters receipts vouchers documents and writings account book of account letter copies or copy of extracts or extract from letters or a letter receipt voucher document or writing relating to the matters aforesaid or some and which of them ; And that the said last named defendants may set forth a full and true list or sche- dule of all the said deeds and evidences deed and evidence accounts books of account letters receipts vouchers documents and writings account book of account letter copies or copy of and extracts or ex- tract from letters or a letter receipt voucher document and writing that now are or is or ever were or was in their or either of their pos- session or power, distinguishing such of them as now are or is in their possession or power, and may set forth what have or has become of such of them as are or is no longer in their or either of their posses- sion or power. And that the trusts of the said testator's will may be performed Prayer. 264 BILLS TO CARRY THB TRUSTS and carried into execution. And that an account may be taken by and under the direction and decree of this honorable court of the personal estate and effects of the said testator J. H. and the in- terest and income thereof since his death and of his debts funeral and testamentary expenses and legacies. And that the said testa- tor's personal estate may be declared applicable in the first instance in payment of his debts funeral and testamentary expenses and legacies so far as the same will extend for that purpose, and the deficiency (if any) be paid out of the rents and profits of the whole of the said testator's real estates or by sale or mortgage of sufficient proportionate parts thereof. And that an account may be taken of the several annuities given by the will of the said [ *265 1 ^testator and of the arrears now due and owing upon the same respectively. And that such arrears may be paid out of the rents and profits of the said residue of the said testator's real estates charged with the payment thereof, or in case such rents and profits received by the said E. H. and B. H. shall not be sufficient for that purpose, then that such deficiency may be raised by sale or mort- gage of the said residue of the said real estates or a sufficient part thereof, according to the directions of the said testator by his will; and that your oratrix and the said annuitants may be paid their several annuities for the future out of the residue of the rents and profits of the said last-mentioned estates, according to the priority directed by the said testator's will ; and that one or more receiver or receivers may be appointed by this honorable court of the outstanding personal estate and the rents and profits of the real estates of the said testa- tor, with all proper and necessary directions ; and that the said E. H. -and B. H. may be respectively restrained by the injunction of this honorable court from collecting in and receiving the outstanding per- sonal estate and the rents and profits of the real estates of the said testator or any part thereof; and that all proper and necessary direc- tions may be given by this honorable court for effectuating the pur- poses aforesaid. \_And for further relief.^ LXXXVI. Statements and charges in a bill filed hy executors for their indemnity on account of the conflicting claims of the legatees entitled to the residuary estate, and other persons also claiming to he entitled thereto. That the resi- That the Said E. K. departed this life on, &c. and the said J. K. &c. duaiy legatees &c. the residuary legatees named in the said will of the said testator have attained ^g aforesaid have all attained their respective ages of twenty-one years, and the said residuary legatees are now become entitled to have their respective shares of the said residuary property paid to them. Statement of That the Said testator's residuary property now consists of the sum ■what the resi- of £ 3 per Cent, consolidated bank annuities, and the sum of consi^tr'^'^ ^ ^" *^® hands of plaintiffs, and plaintiffs are ready and willing OB WILLS INTO EXECOTION. 265 to divide and dispose of the said residuary property according to the directions contained in the testator's will. That E. S. and J. S. claiming to be entitled to some interest in the and of claims property to which the said is entitled in right of his said wife made by the of and in the said testator's residuary property under an assignment ^iefeudants made to them by the said C. F., served a notice in writing to that ti"es served purport on plaintiff J. S. As by the said notice, &c. on plaintiffs. That on, &c. another notice was served on plaintiffs by Messrs. G. and I. of, &c. claiming the said share of the said C. F. in right of M. his wife by virtue of an assignment from the said E. S. and I. S. ; but the said Messrs. G. and I. having since become bankrupts, another notice was served on plaintiff's solicitor on, &c. by Messrs. W. and Son the solicitors under the commission of bankrupt awarded against *the said G. and I. purporting that W. C, &c. having been duly r *266 1 chosen and appointed assignees of the estate and effects of the said G. and I. claimed the said share of the said C. F. and his said wife in right of the said G. and I. As by the said two notices, &c. That on or about, &c. a notice was served M^pon plaintiff hj W. G. of, &c. stating a certain assignment made by the said to N. S. of, &c. under and by virtue of which the said R. S. claimed to be entitled to some interest in the said share of the said A. and M. his wife of and in the said residuary property. As by the said notice, &c. That by reason of such several claims plaintiffs are unable to dis- tinguish to whom the said residuary property ought to be distributed ; but plaintiffs being ready and willing to distribute the same have frequently, applied to the said, &c. &c. {the claimants) and also to the Applications said, &c. (the residuary legatees) and also to the said, &c. the several to the defend- assienees who have so served plaintiffs with notices and made claims f/"'? *°, '^'^J"^* '^ ., ,, -^11 1 1- ,.., their claims, as atoresaid, and have requested them to settle or adjust tneir said several claims and demands, that plahitiffs might be enabled to dis- tribute the said residuary estate accordingl3^ But the said defend- Refusals, ants refuse to comply with such requests, and they pretend that no Pretence that such will as hereinbefore set forth was made by the said H. M. °° J''^ "'^^ Charge the contrary thereof to he true, and which defendants will at „, ' . other times admit but then they pretend that there is a very large contrary. residue in the hands of plaintiffs, and much more than the said sum Pretence that of £ . Charge the contrary thereof to he true, and that no more there is a now remains than the said sums hereinbefore in that behalf men- ^'^'^^ larger tioned, except what (if any thing) may have come to the hands or plaintiffs' possession of the said I. S. And the said defendants, &c. severally hands than claim to be entitled to the said share of the said C. F. and M. his they admit. wife, and the said I. K., &c., claim to be entitled notwithstanding ^Jharge the the said assignment of their shares of the said residuary property as „, . , residuary legatees, and the said defendant I. K. sometimes claims to on the part of be further interested in the said residuary estate and effects, and the the defend- said defendant F. S. refuses to come to any account in the premises, ^"t^- 266 BILLS BY LORDS OF MANORS. LXXXVII. Pretences and charges where the will is disputed hy the heir at laiv. Pretence tliat But then he pretends that the said A. B. did not make such will A. B. did not in writing, or however he was not of sound and disposing mind and ™'*th I'^h ^'a ' ™6mory at the time of making the same, or that he was imposed not of sound upon in the making thereof, and therefore the same ought not to mind or was have any effect as his will, and consequently that neither of your imposed upon, orators had any right to the said premises; but that upon the death of the said testator the said messuages, &c. descended to him the Charge the said defendant as the said testator's heir at law. Whereas your contrary— orators charge the contrary of all such pretences to be true, and make the will ^^^* ^^^ ^^^^ -^' ^' ^^^ ™ ^^^^ make such last will and testament as was of sound aforesaid, and that he was at the time of making the same of sound r *267 1 *and disposing mind memory and understanding,(8) and that he was mind and not ^lo* ^^ ^"^1 manner imposed upon therein or in relation thereto, and imposedupon; that the same was prepared by his direction, and from instructions andthatitwas gjyen by him, and that the same was read over by him or some per- h[s^instruc-°°^ ^°^ ^"^ ■'^'^ hearing before or at the time of his executing the same, tions, and was and that he then well knew and understood the contents and mean- well under- jng thereof, stood by him. *14. BILLS Br. AND AOAINST, LORDS OF MANORS, LXXXVIII. Bill hy the lord of the manor of S. against the lord of the adjoining manors — Praying to have the boundaries of plain- tiff's manor ascertained, and for a commission for that purpose ;(\) — also for an injunction to restrain the defendant from cutting down trees, or committing ivaste on the plaintiff's manor. In the Exchequer, To, &c. Humbly complaining showeth unto your honors your orators E. H. of, &c. debtor, &c. [see form No. 2, p. 2.] That your orator now (8) Where a will is to be established as to real estate, it is necessary to prove that the testator was of sound and disposing mind ; Wallis v. Ilodgeson, 2 Atk. 55 ; Harris V. Ingledew, 3 P. Wms. 92, and the cases referred to in note (xj ibid. 6th edit, proving it to be well executed according to the statute of frauds and perjuries, is not suflBcient. (1) A bill does no< lie for the mere purpose of setlling theboundariesof two manors; ^yllke T. Conyers, 2 Cox, 360, S. C. 1 Eden, 331 ; all the cases where the court has entertained bills for establishing boundaries have been where the soil itself '^as in question, or there might have been a multiplicity of suits. The granting commissions to ascertain boundaries is a very ancient branch of equitable jurisdiction, but the courts have always been very cautious in the exer- cise of it; it is therefore necessary to suggest some equitable circumstance, as that the lands lie intermixed, that fences have been thrown down, boundaries ploughed over, &c. ; but it has alw.iys been refused in the case of manors and parishes ; see BILLS BY LORDS OF MANORS. 2G7 is and for some time hath been and his ancestors for many years That plaintiff previously were seised in fee of the manor or lordship of S. in the ^"'^ hisancts- parish of S. in the said county of Gr. together with all waifs and many vears estrays and all other the rights royalties members and appurtenances been seised in thereto belonging or appertaining, and particularly to all the timber fee ofthe ma- and trees standing and growing upon all the lands parcel of the said °°' ° manor or lordship. And your orator further showeth that the right Defendant honorable F. A. earl of B. now is or claims and for many years claims to be hath been or claimed to be and his ancestors for many years were a^'idnino-'nvi- or claimed to be seised in fee of the manors or lordships of B. C. nois. *and B. adjoining to the said manor of S. in the said county of G. r *268 ] together with all the rights royalties members and appurtenances thereto respectively belonging or appertaining, and particularly to all the timber and trees standing and growing upon all the lands parcel of the said last-mentioned manors or lordships respectively. And your orator further showeth that the said earl of B. hath lately Defendant cnt without the knowledge privity consent or approbation of your orator down a tree felled and cut down or caused to be felled and cut down a certain ^y°;^!l;^£ °"„ 1-1 T T • • 1 -1 • 1 i- o 1 plaintiti s ma- tree which was standmg and growing in the said parish ot b. and „„,■, and gold upon part of the lands parcel of the said manor or lordship of S. tlie same. and which said tree belonged to your orator as lord of the said manor of S., and the said earl of B. sold the same for a large sum of mo- ney which he received, or else he converted and disposed of the said tree to and for his own use and benefit, under a pretence that the same was standing and growing upon part of the lands parcel of the said manors or lordships of B. C. and B. or some or one of them, or upon part of the lands parcel of some other manors or manor of or belonging to him the said earl. And your orator fur- The bounda- ther showeth that the boundaries of the said manors or lordships of riesofthema- B. C. and B. respectively and of such other manors or manor of or °°"'^^°° "-^ • belonging to the said estate as aforesaid, and also the boundaries of the said manor of S. have by great length of time and divers cir- cumstances and accidents been so obscured and confounded that your orator cannot ascertain the boundaries of the said manor of S. or distinguish the same from the boundaries of the said manors of the said earl of B. ; but the said earl of B. from divers deeds and That defcnd- writings maps plans terriers or an ancient land-roll or survey of •''".' '''"°™ '^*''" 11111 ■!■ iT -jii ■■ taindeeds, &c. lands books and papers in his custody or power and otherwise, is ^^^ ascertain able and can ascertain and distinguish the same and the boundaries the same. thereof respectively, and whether any and what parts or part in particular of the said parish of S. appertain or belong to the said manors or lordships of B. C. and B. or to any and which of them respectively, or to any other and what manors or manor in particular of or belonging to him the said earl ; however the said earl refuses to ascertain the same. And your orator charges that the same Charge that cannot be ascertained without the assistance of this honorable court. ^^g^\'f ^^^'j-gn- And your orator further charges that when the said tree was cut the notes to p. 335, 7, 1 Eden's Bep. and the cases there referred to. Waring v. IIo- tham, 1 Bro. Ch. Ca. 40. And see also Speer v. Crawler, 2 Mer. 410"; Dr. Willis v. Parkinson, ibid. 507 ; S. 0. on motion to extend the decree to copyhold as well as freehold lands, 3 Swanst. 233. . 22 268 BILLS BY LORDS OE MANORS. dant's agent to desist from committing That the boundaries cannot be as- certained at law. Charge as to deeds, &c. in defendant's possession. [ *269 ]; Applications made to the defendant. Prayer. down your orator asked the agent of the said earl whether if your orator brought an action for the same or for the trespass committed by cutting the same and succeeded therein, the said earl would de- cline committing any further trespass, and such agent answered that the said earl would time after time commit acts of trespass and try the boundaries of your orator's said manor inch by inch, or to that effect, and he was directed or authorized or encouraged by the said earl to say so or the said earl approved of what he so said when he heard thereof. And your orator charges that it is impossible to ascertain the boundaries of your orator's said manor at law, or at least without a great multiplicity of actions. And your orator also charges that the said earl now has or lately had in his custody or power several deeds and writings which show describe and ascertain the said manors or lordships of B. C. and B. respectively, and the *said other manors or manor of or belonging to him the said earl as aforesaid and the boundaries thereof respectively, and also the boun- daries of the said manor or lordship of S. and which would clearly distin- guish the same and show the extent of each of them, and whether any and what parts or part in particular of the said parish of S. ap- pertain or belong to the said manors or lordships of B. C. and B. or to any and which of them respectively, or to any other and what manors or manor in particular of or belonging to him the said earl, if he would produce the same to your orator, but which he absolutely refuses to do, although he hath been repeatedly applied to for that purpose by and on the behalf of your orator. To the end there- fore, that, &c. [^Proceed as in p. 9, antea ; interrogating to the statements and charges.^ And that the said earl may answer the several matters aforesaid ; and that the said manor or lordship of S. and the boundaries thereof may be distinguished and ascertained ; and that a commissioner com- missions may issue out and under the seal of this honorable court directed to certain commissioners therein named, for the purpose of distinguishing and ascertaining the same, and that all proper direc- tions may be given relating thereto. And that the said earl his servants and workmen may be restrained by the injunction of this honorable court from felling or cutting down or causing to be felled and cut down any timber or trees standing and growing in the said parish of S., and. particularly upon all or any of the lands parcel of the said manor or lordship of S., and from committing any waste or spoil therein or thereon. [^Andfor general relief, see form VIII. p. 5.] May it please, &c. [^See forms Wo. 3 and 5, p. Q & 7.] R. R. BILLS BY LORDS OF MANORS. 269 LXXXIX. Bill ly the lord of the manor of S. for an account and payment of the arrears of a certain ancient yearly rent of per acre called cully er-rent payable in respect of certain freehold lands within the manor. — Charging that plaintiff is unable to distin- guish those lands from others belonging to the defendant in respect whereof no such rent is payable ; and that plaintiff is unable to proceed at law and distrain for the rent.{2) States that plaintiff is and for the space of years past hath T^at plaintiff' been seised in fee or of some good estate of inheritance of or well en- is seised in fee titled unto the manor of S. in the county of S. with the appurtenan- of tbe manor ces, and of and to divers lands and tenements, and various rents and services thereto belonging and incident. That there are divers freehold lands and tenements situate in the That a cull- several hundreds of A. B. and C. which are and from time imme- yer-rent is morial *have been situate within and holden of the said manor of pay^We ■" le- S. in respect of which lands and tenements a certain ancient yearly tain lands hol- rent of an acre called cullyer-rent is and from time immemorial den thereof. hath been payable, and ought to have been paid on Michaelmas-day [ *270 ] in each year by the respective owners of the said lands and tene- ments to the lord of the said manor for the time being. That it is and from time immemorial hath been customary for the a freeholder lord of the said manor for the time being or his steward to keep or appointed hold a court-leet and court-baron within and for the said manor, on cullyer annu- yearly, at which a freeholder is appointed cullyer to collect the g;J court ^to^' said customary payment of an acre, and to pay the same to collect the the said lord or his steward. '■^°'- That a great part of the said rent of an acre has accord- ingly from time to time been paid by the respective freeholders of the said hundreds for the lands by them respectively holden of the said manor. That the defendant during all the time that plaintiff hath been Defendant seised of or entitled to the said manor, hath been and now is seised seised of cer- of or well entitled to the freehold messuage and pieces or parcels of {g^Vh'^id'n land and tenements hereinafter mentioned, (that is to say,) &c. all of the said which are situate in the said hundred of A. and are in the tenure manor, under or occupation of defendant or of some person or persons holding the ^^^. ^^"^ ''^°*' Si- 1 11 !_■ i_ • ■i.u iL i. which was same of him, and all which premises with the appurtenances now ^uly paid un- are and always have been holden of the said manor of S. under the til plaintiff be- said yearly rent of an acre payable at Michaelmas-day in each "^^"^ seised of year according to the old style ; and such rent was duly paid for the said premises to or for the use of the lords of the said manor for the time being, until plaintiff became seised thereof or entitled thereto. But that ever since that plaintiff has been seised of or entitled to the said manor the said defendant hath from time to time neglected or omitted to pay the same yearly rent to plaintiff, and (2) See JVorthv. Earl of Strafford, 3 P. Wms. 148, 6th edit, and the cases referred to in the notes; 1 Madd. Ch. Pr. 28. 210 BILLS BY LORDS OP MANORS. Defendant tliat defendant is seised of or entitled to divers other lands and here- seised of other ditaments within the said hundred of A. besides those hereinbefore We to the rent" mentioned, and in respect of which no cullyer-rent is due or paya- Plaintiff un- ^'^ to the Said lord of the manor of S. And plaintiff hj reason of able to distin- the neglect of former stewards or bailiffs of the said manor is unable guish the par- iq distinguish the said lands in respect of which the said cullyer-rent liablr '"^""^^ ^^ payable from the other lands of the said defendant of which no Applications ^^'^^ ^^^^ i^ payable. But plaintiff being well entitled as aforesaid to the defend- hath applied to defendant and requested him to pay what is due fi"t. from him to plaintiff, for the arrears of the said rent in respect of the said premises belonging to him for which the said rent is paya- ble, and to discover to him which are the particular lands liable or subject to the payment of the said rent. And plainti^ weW hoped that the said defendant would have complied with such your orator's reasonable requests, as in justice and equity he ought to have done. Pretence that BuT NOW SO IT IS, &c. \_See form lY. p. 5.] And the said defen- the particular dant pretends that the said premises before specified, are not nor ever '^"vect'To the ^^""^ holden of the said manor of S. or subject to such yearly rent rent, but that as IS above Stated or any other rent. And at other times the said he holds other defendant pretends that some part only of the said premises, or lands liable ^.j^g^^ some Other lands or tenements which belong to him has or have ^97-| -1 *been and is or are holden of the said manor, but what such part is L J or what such other lands are he refuses to discover. And the said ^'^^*^'^t has * defendant also pretends that no cullyer-rent or other rent has been been paid for paid for a great length of time past to or for the use of the said lord a long time of the Said manor for or in respect of any lands or tenements be- andisnotnow lodging to him within the said manor, and that therefore the same ^^^^ ■ is not now payable and that plaintiff cannot insist on the payment Charge that thereof. Whereas plaintiff charges that the premises before speci- the particular gg^j qj. (.]^g gj-gatest part thereof have or has always been and now Hable 'and ^'"^ °'" '^ holden of plaintiff's said manor, and under or subject to that the rent the payment of the said yearly rent of an acre or some such was paid for rent, and that such yearly rent was always heretofore paid for Ae *^^™»-ff u<> same by or on the behalf of the owner of the said premises or such plaintitt be- J . « i i i p i ■ i came lord of part thereoi tor the time being, to the use ot the lord ot the said the manor. manor for the time being, and continued to be so paid until the time that plaintiff became lord of the said manor or thereabouts. That a former And plaintiff further charges that M. A. deceased under whom proprietor ^^jg defendant became seised of or entitled to the said premises, as pai e ren . j^j^ immediate successor or in succession to some other person or persons who was or were in the possession of the said premises between the time when the said M. A. was last seised and the time when defendant was first seised of or entitled to the said premises, paid the said rent in his life-time and to the time of his death, and that defendant has paid the same since he became seised of and interested in the said premises. And as evidence of the said premises being within or belonging to the said manor and holden of the lord of the said manor, and that such rent is pay- Charge a pre- able in respect of the said premises, plaintiff further charges that sentment jn and by a further presentment of lands within the said hundred ma e yajury ^^ ^ belonging to the Said manor and holden of the lord of the BILLS BY LORDS OF MANORS. 271 said manor at or by the said rent of an acre, which was made of freeholders and signed by twelve jurors freeholders of the said hundred of A. of lands liable and given in and by them at a court-leet and court-baron holden c°uding\he'°" for the said manor on , before R. S. the then steward of defendant's. the said court, all the premises above specified are mentioned and specified as being within the said hundred of A. and belonging to the said manor and holden of Y. Z. the then lord of the said manor at and under the several yearly rents thereia specified, being in the proportion and after the rate of per acre for all the said premises; But in case the payment of the said yearly rent of per acre in respect of the said premises, or any part thereof, was discontinued or omitted for any time before plaintiff became seised of the said manor and which plaintiff does not admit, plaintiff charges that some cullyer or cullyers for the time being of That the rent the said manor of S. was or were in some manner connected with '"'^^ neglected or influenced by the said defendant or some former owner or owners ^^ -^^ former of the said premises and therefore neglected or omitted to collect cullyers. the said cullyer rent for the said premises or such part thereof as That the for- was liable thereto. And plaintiff further charges that the said mer owner cullyer-rent has within years last past been paid by or on the \-a^\i within behalf of the former owner or owners of the said premises or some years. *part or parts thereof, or of some other lands belonging to the de- [ *272 ] fendant within the said manor to or for the use of some lord or lords of the said manor for the said premises or some part or parts thereof or for such other lands. And plaintiff further charges that defend- Charge as to ant hath in his custody or power diveis or some receipts or discharges receipts, for the said cullyer-rent, and also divers or some deeds evidences en- defendant's'" tries and memorandums and other papers and writings by which it possession. appears that the said premises or some part or parts thereof, or some other lands belonging to him are or is holden of the said manor and under the said yearly rent, aad that such yearly rent has heretofore and within years last past been paid for the same ; and defend- ant well knows the aforesaid matters to be true but refuges to discover the particular lands belonging to him which are holden of the said manor under the said yearly rent. And plaintiff for want of know- Plaintiff un- ing with certainty and not being able to prove the identity of the ^^'? *° ^'^' lands belonging to defendant which are holden of the said manor and arrears. subject to the said yearly rent is unable to proceed at law and distrain for the arrears of the said rent. All which actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts ; and af- ter the interrogatory as to the receipts, deeds, ^c, in the defendant's custody, proceed thus ;] And that the said defendant may set forth Interrogatory the same or all such parts of them as relate to the said rent or the pay- requiring de- ment thereof for the said premises or any of them, and such other lands fo^jj receipts or any part thereof, and all such receipts and discharges in the words relating to the and figures thereof, and may leave all such deeds, &c., in the hands of ^^^ ^"'^ t° his clerk in court for the usual purposes ; And that he may set forth a ^eed^Ac. and true perfect and exact account or terrier of all the lands and tenements a terrier of all belonging to him or which he is in anywise seised of or entitled to sit- ^^'^ lands held uate within the said manor and holden thereof under and subject to the ^ the^re^nt'^''' said yearly rent, and may distinguish the boundaries of all such lands 272 BILLS BY LORDS OF MANORS. and tenements and the names of the occupiers thereof, and may set forth when last and by whom and to whom the said yearly rent was paid for the same respectively. Prayer. And that an account may be taken of the arrears of the said yearly rent due and payable from the said defendant to the plaintiff aalord of the said manor of S. for the said lands and tenements belonging to the said defendant in respect whereof the said rent is payable, and that the said defendant may be decreed to pay unto plaintiff what shall appear coming from him the said defendant to the plaintiff on the taking of the said account. l_And for further relief see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] [ *273 1 **XC. Bill hy the lord of a manar against two copyhold tenants co- parceners, in possession of thirtg-one copyhold tenements, charged with having thrown down the boundaries thereof, hy which means the copyhold lands have become intermixed with their freehold es- tates. Prayer for a discovery and account of the quantity and vahie of coals iron-stone and other minerals procured hy them from their copyhold estates in conjunction with certain coal masters who are also made defendants, as claiming under a lease granted to them hy the other defendants ; — Also for an injunction to restrain the defendants from working the veins of coal lying in their copyhold estates, — the plaintiff waiving all forfeitures.{S) [The interrogatories are inserted.) To, &c. Humby complaining showeth unto your lordship your orator P. P. That defen- of, &c. lord of the manor of 0. W. in the county of S., That at a and'p^P^and °°^^^ baron held in and for the said manor of 0. W. on the 12th their dece-ised day of July —t- — M. P. the wife of E. P. of, &c. (then M. F. spin- sister E. w. ster) P. P. of the same place widow (then P. F. spinster) and B. W. were admitted ]^^q ^f^ ^^.^ widow, deceased (then E. F. spinster) were duly admitted tenements as tenants to thirty-one copyhold or customary estates or tenements, co-heiresses situate lying and being within the manor of 0. W. aforesaid, as the of w. p. co-heiresses at law of W. F. then late of, &c. aforesaid gent, de- ceased, and called or known by the names and descriptions of a close or parcel of land containing &c. &c. All which said premises were theretofore in the tenure of W. M. To hold to them the said M. P. P. P. and B. W. their heirs and assigns for ever, according to the custom of the said manor, as tenants in common and not as joint tenants, of the lord aforesaid, by the rents suits of court customs and other services theretofore due and of right accustomed. And your Death of E. W. orator further showeth unto your lordship that the said E. W. de- (3) See "Watk. on Copyholds, ed. by Coventry, vol. i. p. 404, 5, and notes; Peachy V. Dulce of Somerset, 1 Strange, 447, 454 ; S. C. 1 Cru. Dig. 346]; Richards v. Noble, 3 Mer. 673; Grey v. Duke of Northumberland, 13 Ves. 236, 2d edition; S. C. 17 Yes. 281 ; Bourne v. Taylor, 10 East, 188. BILLS BY LORDS OF MANORS. 273 parted this life in or about the year , and thereupon the said M. P. and P. P. claimed to be entitled to the one-third part or share then late of the said E. W. deceased, of and in the said thirty-one copy- hold or customary estates or tenements holden of the said manor of 0. W. as the sisters and co-heiresses at law of the said E. W. deceased and were afterwards duly admitted tenants to the same one-third part and admission or share of and in the said thirty-one copyhold or customary estates, °^ ^- P- ^^^ To hold unto them their heirs and assigns for ever, according to the co.iieiresses custom of the said manor, as tenants in common and not as joint at law to her tenants, of the lord aforesaid, by the rents suits and services thereto- one-third fore due and of right accustomed. And your orator further showeth ^ ^f'^- unto your lordship that there are situate lying and being in upon or &""!,;„„ [^ ' under the said thirty-one copyhold or customary estates to which the their estates said M. P. and P. P. have been so admitted as aforesaid, or under the property ^several of them or some part or parts thereof, certain veins or ^e'^gte^/n'tije seams of coal <;ulm and iron-stone and other minerals of great value, ]ord of the the absolute property whereof is now vested in your orator as lord manor. of the said manor of O. W. And your orator further showeth that [ *274 ] the said E. P. and M. his wife and P. P. have lately and without the The same license or consent of your orator opened the said veins or seams of opened with- coal or culm and iron-stone, or authorized or permitted the same °^^^^ '^ '^°'^" to be opened, and have worked dug up or procured and carried away and authorized or permitted to be worked dug up or procured and carried away from off and out of the said several copyhold or custo- mary estates great quantities of coal culm and iron-stone and other minerals, which they have since sold and disposed of for their res- pective use and benefit for very considerable sums of money. And your orator being so as aforesaid well entitled to the said coal culm and iron-stone and other minerals and to the profits or produce thereof, your orator hath frequently by himself his steward and agents applied to the said E. P. and M. his wife and P. P. and in a Applications. friendly manner requested them to account with him for the several quantities of coal culm and iron-stone and other minerals so dug up and procured and sold or disposed of by them respectively, and to discontinue from raising or digging up and procuring any further or other coal or culm or iron-stone or other minerals from the said seve- ral copyhold or customary estates to which the said M. P. and P. P. were so as aforesaid admitted at the said several courts baron, your - orator being willing to waive any forfeitures which the said M. P. and P. P. might have incurred of their said estates by reason of such proceedings. But now so it is may it please your lordship that the said E. P. andM. his wife and P. P. combining and confederating to and with A. P. of, &c. coal master, D. P. of, &c. coal master, and G. P. of, &c. coal master and also to and with divers other per- sons, &c. [iSeeform IV. ^, 5,] they the said E. P. and M. his wife, and P. P. absolutely refuse to comply with such your orator's reasonable requests, and to color such refusals they pretend that the veins or pretence that seams of coal and iron-.§tone and other minerals lying in and under the veins of the said several copyhold or customary estates in their tenure or ^"^j.^'^^^^g^ occupation or of their under-tenants have never been opened or opened, but worked by them or by their direction or for their benefit, but that that the coal 27-4 BILLS BY LORDS OF MANORS. soldbytbede- the coal culm and iron-stone and other minerals so sold by them as fendant was aforesaid were raised and procured from some freehold lands also in thdr freehold ^^s''^' ^'^^ Occupation and lying contiguous to the aforesaid copyhold lands adjoin- estates. Whereas your orator charges the contrary of such preten- ing- ces to be the truth. And your orator further charges that the free- Charge the hold lands belonging to the said M. P. and P. P. in, &c. aforesaid, contrary. jj^ intermixed with and undistinguished from the aforesaid several hold lie inter- copyhold estates so as aforesaid belonging to them and holden of mixed with the Said manor of 0. W. ; and that the boundaries of the said the copyhold copyhold estates have been thrown down or improperly neglected bmmclaries ^J ^^^ ®*'*^ ^^- ^- ^^^ ^- ^- ^°^ *^® purpose of rendering the same whereof have undistinguishable from the said freehold lands; and that by means been thrown of shafts Or pits and engines and other machinery sunk and erected down. ^ :{:|jy ^jjg gg^j^j several defendants as well on the freehold parts of the L *-■ ' "3 J said lands as also on the said copyhold estates or some parts thereof. That by means tJ^Q g^id defendants B. P. and M. his wife and P. P., and also the on'tiTe free"-"'' ^aid A. P., D. P. and G. P. by their direction and authority or with their hold and privity consent and approbation, have lately opened and worked the copyhold said veins or seams of coal iron-stone and other minerals and raised fendants'^have ^'' '^^^ "P °^ procured large quantities of coal culm and iron-stone and raised large Other minerals from the said several copyhold or customary estates to quantities of which the- Said M. P. and P. P. were so admitted as aforesaid, and coalfrom their .^yjiigij they have since sold and disposed of for various large sums of tates money. And the said several confederates at other times pretend Pretence that that coal and iron-stone have been from time immemorial raised or dug coals have up by the tenants of copyhold estates holden of the said manor of been '"™^"^ 0. W. without their right to the same being called in question by the for. ° lords of the same manor. Whereas your orator expressly charges Charge the the Contrary thereof to b'e the truth ; and that the said defendants contrary. have frequently admitted that no coal or iron-stone had been dug for Charge an ad- or procured within the said manor till of very late years. And in mission made pa_j.tjg^]j^r your orator charges that the said defendant M. P. ex- by one or the -t^ n-i "p, •i-r.-r. iii- defendants as pressly Stated in the presence oi the said P. P. at a court held in to her know- and for the said manor on the 24th day of March , that for ledge of the yg^rg after she was born no coal had been got in , and that she iirst co^l pit '' . . ^ beino- sunk, '^^ell recollected the first coal pit being sunk there. And your ora- As to the per- tor further charges that the said defendant A. P. and his late father sons who sunk or one of them were or was the first persons or person who sunk the the first pit; f^^,^^ pj^ £or digging coals or iron-stone within the said manor, and he • dant's know- . '^^'^ *11 ^^^ Other defendants well knew that no custom exists en- ledge that no abling the copyholders to dig and procure coal iron-stone or other custom exist- minerals within the said manor, and that all minerals within the said copyholdefs Dianor belonged exclusively to the lord. And the said several de- to dig for coal, fendants at other times pretend that the coal and iron-stone and other Pretence that minerals raised and procured by them from the said copyhold estates the coal raised were of very small value, and that your orator or his steward granted value a^nd^ some license or authority to them for that purpose. Whereas your that the plain- orator charges that the said copyhold estates belonging to the said tiff or his M. p. and P. P. are worth to be let the sum of 800l. and upvpards steu-ard acre, on account of the veins and seams of coal culm and iron- sence. Stone and other minerals lying within the same for the purpose of dig- BILLS BY LORDS OF MANORS. 275 ging for and getting such coal culm and iron-stone and other minerals ; Charge ag to And that your orator or his steward never gave or granted any license J?^7^?^ °^ or authority to the said several defendants or any of them, or any count of the other person or persons to open the said veins or seams of coal and veins of coal ; iron-stone and other minerals, or to dig for or procure coals iron-stone Andthatnoli- or other minerals within the said manor, which the said several con- "^^1^ ^* ted federates well know to be the truth ; And the said confederates A. p^gten^cTof a P. D., P. and G. P. at times claim or pretend to be entitled to all the lease granted coal culm and iron-stone and other minerals found in and upon or to three of the under the said several copyhold or customary estates to which the said f^'^^"!^"* j ^^ M. P. and P. P were so admitted as aforesaid under or by virtue of fendants. *some lease or agreement for a lease made or granted to them by the r *276 1 said B. P. and M. his wife, and P. P. but the nature and particulars of such lease or agreement they respectively refuse to discover ; And the said A. P., D. P. and G. P. also refuse to give or render to Refusals by your orator any account of the coal culm iron-stone and other mine- defendants to rals dug up and procured by them respectively within the said manor ^"""hat^they or the value thereof or any part thereof, and allege that they or either ^ere ignorant of them never knew that your orator was entitled to the coal culm of the plain- and iron-stone and other minerals within the said manor. Whereas *1^'^ *'*}® ^° your orator charges that if any such lease or agreement was ever „, ', . made or entered into with them or any of them, the same is abso- any lease, if lutely void as against your orator, and that your orator as lord of granted, is the said manor of 0. W. is well entitled to have an account taken X°'^ i^-^\°ff of the quantity of coal culm iron-stone and other minerals raised or and ftat he'is dug up by the said several defendants and every of them from the entitled to an said several copyhold or customary estates and of the quality thereof, account. and of the several sums of money for which the same and every part thereof have or has been sold or disposed of; And that all the said Charge as to defendants well knew at the time they first commenced digging for notice to the and getting such coal or culm or iron-stone or other minerals as afore- gut tha^thev said, that your orator was well entitled thereto or had some notice persist in dig- thereof given to them. But nevertheless the" said several defendants ging for coals, E. P. and M. his wife, P. P., A. P., D. P. and G. P. persist in digging *<=• ^""^ <='"^- , . , ,' . ' ' , , . , f . . OB & vert the same and getting coals and iron-stone and other minerals lying in or under to their own the said several copyhold or customary estates or some part or parts use. thereof, and in converting the same to their own use and benefit, contrary to the custom of the said manor and the will of your ora- tor. All which actings doings and pretences, &c. [^seeform VI. p. 5J and more especially that the said confederates may in manner aforesaid answer and set forth. Whether the said M. P., P. P. and Interrogato- E. W. were not duly admitted tenants to the aforesaid thirty-one ^es relating to 1 1 T '' 1 1 • 1 I? the stating copyhold or customary estates or tenements or some and wnicn oi p^rt; them in manner aforesaid at the said court held in and for the said manor of 0. W. on the said 12th day of July , as the co-heiresses at law of the said W. F. their father deceased or how otherwise ; And whether the said E. W. did not depart this life in the year , or at some other time and when ; And whether the said M. P. and P. P. did not thereupon claim to be entitled, and were not afterwards and when in particular duly admitted tenants in manner aforesaid to the said one-third part or share then late of the said E. W. de- 276 BILLS BY LORDS OF MANORS. ceased of and in the said thirty-one copyhold customary estates or tenements, or some and which of them, as her sisters and co-heir- esses, or how otherwise : And whether there are not situate lying and heing in upon or under the said thirty-one copyhold or cus- tomary estates, or under several and which of them, or some and what part or parts thereof certain veins or seams of coal and iron- stone and other and what minerals of great value ; And whether the absolute property thereof is not now vested in your orator as lord of the said manor of 0. W. and if not why not ; And whether the said E. P. and M. his wife, and P. P. or some and which of them have not lately and when in particular, and without the license or consent of your orator, opened the said veins or seams [ *277 1 *of coal and iron-stone and other minerals, or authorized or per- mitted the same or some and which of them, and where situate, to be opened ; And whether the said E. P. and M. his wife, and P. P. or some and which of them have not worked dug up or procured and carried away or authorized or permitted to be worked dug up or procured and carried away from off the said several copyhold or customary estates or some and which of them or some and what part or parts thereof, some large and what quantities of coal culm and iron-stone, and other and what minerals ; And whether they or some and which of them have not since sold and disposed thereof, or some and what parts thereof for their respective use and benefit for very considerable and what sums of money, or what is become thereof; As to the ap- And whether your orator hath not frequently by himself his steward ?if "^d^'f °V° ^^^ agents, made such applications and requests to the said defend- ants- " 3'iits E. P. and M. his wife and P. P. or to some or one and which of them as hereinbefore in that behalf stated and set forth or some other and what applications and requests to that or the like or some and what other purport or effect ; And whether the said E. P. and M. his wife, and P. P. or some or one and which of them do not and To the charg- why absolutely refuse to comply therewith ; And whether the said ing part. veins or seams of coal and iron-stone and other minerals lying in and under the said several copyhold or customary estates in their tenure or occupation or of their undertenants or some and which of them, were not opened or worked by them the said E. P. and M. his wife, P. P. or some or one and which of them, or by the direction or for the benefit of them or some or one and which of them ; And whether the freehold lands belonging to the said M. P. and P. P. in aforesaid or to one and which of them do not lie intermixed with and undistinguished from the aforesaid several copyhold estates so as aforesaid belonging to them, and holden of the said manor of 0. W. ; And whether the boundaries of the said copyhold estates or some and which of them have not been thrown down or improperly neglected by the said M. P. and P. P. for the purpose of rendering the same undistinguishable from the said freehold lands, and for some and what other purpose ; And whether by means of shafts or pits and en- gines and other machinery sunk and erected by the said several defendants E. P. and M. his wife P. P., A. P., D. P. and G. P. or by some and which of them as well on the freehold parts of the said lands as also on the said copyhold estates or some and what parts BILLS BY LORDS OF MANORS. 277 thereof they the said E. P. and M. his wife, and P. P. and also the said A. P., D. P. and G. P. by their direction and authority or with their privity consent and approbation or some or one and which of them have or hath not l?itely opened and worked the said veins or seams of coal and iron-stone and other minerals, and raised or dug up and procured some large and what quantities of coal culm and iron-stone and other minerals from the said several copyhold or cus- tomary estates or some or one and which o_f them, or how otherwise; And whether they or some or one and which of them have or hath not since sold and disposed thereof or some and what parts thereof, for various large and what sums of money ; And whether the said several defendants B. P. *and M. his wife, and P. P. and also the [ *278 ] said A. P., D. P. and Gr. P. or some or one and which of them have or hath not frequently expressly stated or admitted as the fact is that no coal or iron-stone or one and which of them had been dug for or procured within the said manor till of very late years, or used words to that or the like or some other and what purport or effect ; And whether the said defendant A. P. and his late father or one and which of them were or was not, or who were or was the first persons or person within the knowledge information and belief of the said defendants respectively, who sunk the first pit for digging coals or iron-stone within the said manor, and in what part thereof in parti- cular ; And whether the said defendants respectively do not well know and whether it is not the fact that no custom exists enabling the copy- holders to dig and procure coal iron-stone or other minerals within the said manor, or any part or parts thereof; And if they or any or either of them shall pretend to allege that any such custom exists, then that they may respectively set forth the particulars thereof, and the origin and grounds upon which they allege the existence of such pretended custom ; And whether all the minerals within the said manor do not belong exclusively to the lord, and if not why not ; And whether the said defendant M. P. did not expressly state in the pre- sence of the said P. P. and to some and what person or persons at a court holden in and for the said manor on the 24th day of March , or at some other time and when in particular, that for years after she was born no coal had been got in , and that she well recollected the first coal-pit being sunk there, or used words to that or the like or some other and what purport or effect ; And whether the said copy- hold estates belonging to the said M. P. and P. P. are not worth to be let the sum of 800Z. and upwards per acre or some other and what sum of money, on account of the said veins and seams of coal and iron-stone and other minerals lying within or under the same for the purpose of digging for and getting such coal culm and iron- stone and other minerals ; And whether your orator or his steward did ever and when in particular give or grant any license or autho- As to the al- rity to the said defendants, or any or either and which of them, legedleaae. or to any other person or persons and whom by name to open the said veins or seams of coal or iron-stone or other minerals, or to dig for or procure coals iron-stone or other minerals within the said manor ; And if the said A. P., D. P. and Gr. P. or any or either of them shall claim or pretend to be entitled to all the coal culm and iron-stone 278 BILLS BY LORDS OF MANORS. and other minerals found in upon or under the said several copy- hold or customary estates to which the said M. P. and P. P. were so admitted as aforesaid, or any part or parts thereof under or by virtue of any lease or agreement for a lease made or granted to them or any or either of them, by the said B. P. and M. his wife, P. P. or any or either of them, then that they may respectively set forth and discover the nature and particulars thereof, together with the date parties' names and short material contents ; And that all the said several defendants may in manner aforesaid answer and set forth whether such lease or agreement for a lease is not absolutely void as against your orator, and if not why not ; And whether your orator is not well entitled to have an account taken of the quantity of coal [ *279 ] *culm and iron-stone and other minerals raised or dug up by the said several defendants, and every of them, or by their direction, from the said several copyhold or customary estates, and of the quality thereof, and of the several sums of money for which the same and every part thereof have or has been sold or disposed of, and if not why not ; And whether all the said defendants or some or one and which of them did not well know at the time they first commenced digging for and getting such coal or culm as aforesaid, that your orator wa,s well entitled thereto, or had not some and what notice thereof given to them respectively, or to some or one and which of them, or when did the said defendants respectively first know under- stand or believe or have notice given to them respectively that your orator was entitled to such coal or culm and iron-stone and other For an ac- minerals ; And that the said several defendants may respectively set quantities*of f°^*''^ ^ ^^^^ ^^^^ ^^^ particular account of the several quantities of coal, &c. pro- coal culm and iron-stone and other minerals raised dug up or pro- cured by the cured by them respectively, or by any other person or persons by defendants, their or any or either of their permission or direction, or for their or andforwnom; .,,■' /. ^, . i i ^^ ■ i t i> the moneys ^^7 °^ either 01 their use and benefit in each and every year trom produced by the commencement thereof .out of and from the said veins or seams t^^ °^'f a °^ "^^^ iron-stone and other minerals lying in upon or under the by whom re- ^^^^ several copyhold or customary estates belonging to the said M. ceived, and P. and P. P. and holden by them of the said manor of 0. W. and the quantities the natures qualities full true and utmost values thereof, and of every ma^nhiff u^n- P*^* thereof, and when or at what time or times and by whom or by sold. whose direction and from which of the said several copyhold or custo- mary estates or from what part or parts thereof the same several quantities of coal culm and iron-stone and other minerals and every part thereof have or hath been so raised dug up or procured, and how and in what manner the same and every part thereof have or hath been sold applied or disposed of, and when and by whom and to whom and for what sum or sums of money, and for whose use and benefit, and by whom such sum or sums of money have or hath been from time to time received; And whether any and what sum and sums of money now remain due and owing on account thereof, and from whom and why the same still remain due and owing ; And whether any and what quantites of such coal and culm and iron- stone and other minerals now remain unsold or undisposed of, and where are the same now lying, or what is become thereof. BILLS AGAINST THE LORD OF THE MANOR. 279 And that an account may be taken by and under the direction and Prayer. decree of this honorable court of the several quantities of coal culm and iron-stone and other minerals worked raised or procured by the said defendants E. P. and M. his wife, and P. P. and the said A. P., D. P. and G. P. and every of them, or by any other person or persons by their permission or direction or for their or any or either of their use, out of or from the said several copyhold or customary estates belonging to the said M. P. and P. P. and holden by them of the said manor of 0. W., and how and in what maner and for what sum or sums of money the same and every part thereof have or hath been sold applied and disposed of ; and that the said defendants may be *respectively decreed to pay the full value thereof to your orator ; [ *280 "1 and that the said defendants E. P. and M. his wife, P. P., A. P., D. P. and Gr. P. respectively may be restrained by the injunction of this honorable court from working the said veins or seams of coal iron- stone and other minerals lying in upon or under the said several copyhold estg,tes of the said defendants M. P. and P. P., and from digging getting and carrying away or selling or disposing of the coal culm and iron-stone and other minerals produced therefrom. \^And for further relief, see for m'VHl.p,b.~] May it please, &c. [see forms No. 1, and 5, p. 6.] Pray subpoena and injunction against JE. P- and M. his wife, P. P. A. P. D. P. and a. P- XCI. Bill hy the tenants of several manors parcel of another manor against the lord and his steward to establish certain ancient custo- mary rents and fines and other customs ; the lord alleging that the fines are arbitrary and that an award was made binding upon the plaintiffs. — The bill prays that one or more issues at laiv may be directed in some indifferent county, that antecedent thereto the defendants may produce all decrees, deeds, ^c. relating to the customs, that the plaintiffs may be quieted in the enjoyment of their estates, and for an injunction to restrain the lord of the manor from proceeding in the ejectments commenced against the plain- tiffs.{4:) Humbly complaining show unto your lordship your orators T. A. of, &c. and I. B. of, &c. for and on behalf of themselves and all (4) Where a man sets up a general exclusive right, and where the persons who controvert it with him are very numerous, and he cannot by one or two actions at law quiet that right, he may in the first instance file a bill in equity, which is called a bill of peace, and the court will direct an issue to determine the right, as in disputes between lords of manors and their tenants, and between tenants of one manor and another ; but a bill of this description cannot be maintained where a right is disputed between two persons only; Lord Teynham v. Herbert, 2 Atk. 483. As where a bill was brought by one tenant of a manor suggesting a custom for the tenants of the manor of A. (of which he was one) to cut turves in the manor of B. to quiet him, and to have an issue directed as to the right; upon this occasion, the court said, "This bill is im- 280 BILLS BY CUSTOMARY TENANTS All the man- ors governed by the like customs. [ *281 ] Plaintiff sei- sed of tenant- right estates by payment of a certain an- cient rent, and certain fines. Fines assessed and the value of the estates estimated in proportion to the ancient rent. Custom for te- nants to cut underwood, Other the customary tenants of the manors and lordships of, &c. respectively or of any of them, and of such other manors or lordships, if any, as are held under the manor or barony of B. in the county of Cumberland,(5) That all the said manors or lordships are and have been immemorially governed by the same *or the like customs, both as to the payment of their fines, and in all other respects. And your orators further show that they and the other customary tenants of the said manors and lordships which con- sist of acres, now are and for several years last past have been lawfully seised to them and their heirs respectively, according to the ancient and laudable custom of tenant-right time out of mind used and approved of within the said barony, of certain customary free- hold estates of inheritance descendible from ancestor to heir(6) of and in several messuages lands tenements and hereditaments within and holden of the said several manors and lordships by payment of a certain ancient and accustomed yearly rent, and by payment of certain fines upon change of every lord by death, and of every tenant by death or alienation, to the lord of the said manors and lordships for the time being as follows, viz. upon the change of every last ad- mitted lord of the said manors or lordships by death, by payment of such fine as the next succeeding lord or his steward or agents have reasonably assessed, not exceeding d. fine, or times the amount of the rent so paid by each tenant for or in respect of the customary or tenant-right estate so descending or aliened, which are called dropping descent or alienation fines. And your orators fur- ther show that as well the said general fines as the dropping descent or alienation fines have time out of mind been assessed and paid ac- cording to the ancient yearly rent paid to the lord in respect of the estate or estates for which the same severally happened to become due, without any regard to the real or improved yearly value thereof; and that such estate and estates have been esteemed more or less valuable, and have been sold for a greater or lesser price in propor- tion as they were high or low rented, and that such of your orators and the other tenants of the said several manors and their ancestors as have been purchasers of customary estates held thereof have always paid greater prices for such estates as have paid a small ancient rent than for such estates in other respects being of equal value as have paid a greater ancient rent, by reason of the said measure and me- thod used and observed in assessing the said fines so due and payable in respect thereof. And your orators further show that by ancient custom and usage time out of mind used and observed within the said proper and inconsistent with th^ nature and end of a bill of peace, which is that where several persons having the same right are disturbed, on application to the court to prevent expense and multiplicity of suits issues will be directed, and one or two de- terminations will establish the right of all parties concerned on the foot of one common interest, and the bill is preferred by all the parties interested or a determinate num- ber in the name of themselves and the rest ; but in this case one only brings the bill on the general right, and not on the foot of any particular distinct right |" and there- fore the bill was dismissed with costs. 1 Madd. Ch. Pr. 172. See also Conyera v. Lord Abergavenny, 1 Atk. 284; Cowper v. Clerk, 3 P. Wms. 155, 7 ; and p. 267, n., 6th ed. ; Weale v. West Middlesex Waterworks Company, 1 Jac. & W. 369. (5) See 1 Walk, on Copyholds, ed. by Coventry, p. 41. (6) See 2 Walk, on Copyholds, p. 152, n. AGAINST THE LORD OF THE MANOR. 281 several manors the respective tenants thereof have and always had a right to cut down and dispose of and use all the underwoods growing on their customary lands and estates at their will and pleasure, and also to cut down and make use of any timber growing on their said also timber for estates for repairing of their customary messuages and buildings, and ^o'^s, for hedge-bote cart-bote plough-bote fire-bote and all other necessary uses about their customary estates, which your orators and the other tenants of the said manors are obliged to keep in good repair, and also have been and are absolutely entitled to their own use and to sell and dispose of as they should think proper, all the trees growing on their hedges and commonly called hedge-row trees, for which they pay a hedge-row rent called green lew ; and also to get lime-stone out of any quarries trees; also to upon or within their respective customary estates or any waste p' l'™«stone to DUril lOF grounds *and commons of the said manors and lordships respectively manure and and burn the same, in order to be laid upon and consumed upon their stones for said estates; and also to get stones out of any quarries upon their building; said estates or upon the said waste grounds or commons of the said [ *282 J manors or lordships respectively for building or repairing their custo- mary messuages barns walls hedges or other buildings and erections upon or to be erected upon the same upon the sites of ancient messua- ges, and for that purpose to open new quarries of stone within their to open new- said estates, or on any of the waste grounds or commons of the said quarries; manors and lordships : and also to turn their cattle levant et couch- to turn their ant upon their respective estates, upon the wastes or commons be- '=''"'<' "PO'' longing to the said manors and lordships, and particularly upon a late grazT'^and to large waste or common called I. part whereof is within the said manor of erect 'sheds to A. and part in the manor of T.,to graze thereon in the summer-time, and "^^ in for the to erect houses and sheds upon such wastes to reside and live in during ^"[^"^g "^^g such time for the conveniency of milking their cows and making cheese and making and butter there, such tenants paying to and for the use or the lord cheese and of the said barony for and in respect of such privileges per fo"'eT'r^^h'ad head yearly for their horned cattle, and per head yearly for of cattle- their horses ; and also to cut up and carry away turf peat heath furze also to cut and brakers or fern on any of the said comraions or wastes for fuel and turf, peat &c. for thatching their customary messuages and buildings, and to plough to plough up up theirseveral customary lands as they should think most advantage- '^nds ; ous, and to demise lease and to farm let their said customary estates for to demise and any term not exceeding years, and to mortgage the same redeema- mortgage ble at the end of any term or number of years not exceeding years, ^it'i^om nJ' without any license from the lord of the said barony, and without pay- cense ; ing any fine on that account ; and also to exchange their customary es- to exchange tates of equal value with each other where the same lie intermixed in t'"^'.'" 'a^ without sometime after having made his said will and codicil without having y,\\\ and codi- revoked or altered the same, save as the said will is altered by the cii. said codicil, and the said testator left the said T. lord F. since de- ceased his eldest son and heir, who became entitled to an estate for H's eldest son life in the said premises devised to him as aforesaid, subject to the !',!5*"®.^""". n ■, -K n A 1 .1 -im 1 1 1-1 ,1 t'^d as tenant trusts of the said term of years. And the said i. lord ±. the for life. son afterwards departed this life in the year , leaving T. now His death lord F. one of the defendants hereinafter named his only son, and leaving one also leaving your oratrix 0. G. H. now the wife of your orator his ^°j^' 'i° mfant, only daughter and younger child ; and he did not in his life-time entitled as make any appointment affecting the said sum of £ —. And the tenant in tail, said defendant T. lord F. upon the death of his said father and by ^^^ °^^^^ ^^ virtue of the aforesaid will, became entitled to all the said devised^'became^enTi-" premises as tenants in tail subject to the said term of 99 years, and tied to the subject to the said term of 500 years upon the trusts of the said other whole portion, term of 200 years having been duly satisfied. And your oratrix G. meat^'bav'iJ^ G. H. as the only daughter of her said father T. lord F. became en- been made." titled to have the said sum of £ raised upon the said devised premises by virtue of the trusts of the said term of 600 years. And your orator and oratrixes further show unto your lordship that your orator intermarried with your oratrix C. G. H. some time in or about Her marriage. the month of , and by a certain indenture of four parts bearing ^^ "p'^n- °* "/,, date the day of , and made between your orator of the the benefit of first part your oratrix C. G. H. of the second part, the honorable her husband E. F. of S. in the county of H. and the honorable A. F. of of ffj^';^^;^^^""^ the third part, and the said R. B. the surviving trustee of the before- the"ounger°' mentioned term of years of the fourth part; and by a certain children of the other indenture of three parts bearing even date with the preceding marriage. 25 315 BILL TO HAVE A PORTION indenture, and made between your orator of the first part, your ora- trix C. G. H. of the second part, and the said E. F. A. F. of , E. C. of , and J. D. of of the third part [stating the deeds hy which the said sum of £ was settled upon trust for the hus- band for life, and after his death for the benefit of the younger chil- dren of the marriage ;] and by a certain other indenture bearing date the day of , and made between the said R. B. of the one part, and your orator and oratrix C. Gr. H. his wife of the other part ; and by a certain other indenture bearing date the day of , and made between your orator of the one part, and the said [ *316 ] E. F. A. F. E. C. and J. D. of the other *part [stating the deeds, by which the premises comprised in the said 500 years term, and the said £ were assigned to the trustees.'] As by the said several inden- tures to which your orator and oratrixes crave leave to refer when produced will appear. And your orators and oratrixes further show unto your lordship that by virtue of the said several indentures your orator is become entitled to the interest of the said sum of £ for his life, and after your orator's death the said principal sum will become the property of your orator's younger children by your ora- trix his wife ; and in default of such younger children the same will Three young- become the absolute property of your orator. And your oratrixes er children A. C. E. C. and H. C. are as yet the only children of the said mar- plaintiefs. riage. And your orator and oratrixes further show that no pay- No interest jjjgjj^ }jj^(.]j jjggjj made to your orator in respect of the interest of paid upon the , ., ,.« •'tt ■ ., ■ ^ ■ lj. sum settled, the said sum of * accrued due since the said marriage, but the whole of such interest now remains due and owing to your orator, although the interest made payable for the said sum of £ is at the rate of 4 per cent. only. And your orator being desirous of having the arrears of the said interest paid him, and of making a larger interest of the said money, which he would be en- titled to do in case the same were raised and paid upon the trusts of the said indenture of settlement, your orator hath therefore with the consent and approbation of your oratrix C. G. H. his wife, caused Applications applications to be made to the said E. F. A. F. E. C. and J. D. re- made to the spectively, the trustees in whom the said term of 500 years is now raise the per- vested, and duly required them to take proper measures for raising tion with the the said sum of £ and the interest due for the same, or at least arrears of in- ^q procure the interest of the said sum of £ to be raised to 5 per / ' cent, per annum and to be regularly paid, in which case your orator would have been satisfied, and hath oiFered to let the said money re- main upon the said original security. And your orator and oratrixes hoped that such requests would have been complied with as in justice and equity ought to have been the case. But now so it is may it please your lordship that the said A. F. E. F. E. C. and J. D. in concert with the said T. now lord F. who is an infant under the age but they re- of twenty-one years, have refused and now refuse to take any mea- fuse to take g^reg for raising the said sum of £ and the arrears of interest due any measures ,, ~° ... /-i-n , ■ i for raisingthe theieon, Or tor procuring tae interest oi the said money to be raised same, alleging to 5 per cent, per annum. And the said defendants allege that they that the ten- cannot safely proceed in raising the said money or raising the said in- an infant and terest by reason of the infancy of the said defendant lord F. ; and FOR YOUNGER CHILDREN RAISED. SK! sometimes they allege that the said money cannot be raised by means that the mo- of the said term of 500 years, by reason that the trusts of the said term "^7 cannot be of 99 years are not all as yet fully performed. Whereas your orator (.^^^j of tiie charges that the said term of 9D years ought not to be considered as an trusts of a impediment to raising the said sum of ;£ , inasmuch as the said term pr'or subsist- of 500 years isof sufficient value to raise the said sum oi £ in case '°^ ^'"' the same were sold expressly subject to the said term of 99 years, and th"prTor term the same ought to be done, or else the equity of redemption of the is no impedi- said T. lord P. in the premises ought to be foreclosed for the remain- "'«'nt- der of the said term of 500 years for the benefit of the persons inte- '^^^^ ^ ^"J^ *rested in the said sum of £ : but the said trustees as well as ^^^^ q" tl?» ■ the said T. lord F. make various objections thereto. To the end equitv of re- therefore that the said defendants A. F. E. F. E. C. and J. D. may dcmption upon their several and respective corporal oaths, and that the said T. '"!!'^^'^! J -, lord F. may upon his attestation upon honor, full true perfect and L ^-1^ ' J distinct answer make, &c. [JProceed as inform VI. p. 5, and' inter- rogate to the statements and charges.^ And that an account may be taken by and under the direction and Prayer. decree of this honorable court, of the principal and interest due and owing on the aforesaid secui'ity of the premises comprised in the said term of 500 years ; and that what shall be found due upon the taking of such account may be paid by the said defendant T. lord F. to the said other dofendants upon the trusts of the said settlement, and by a short time to be appointed for that purpose, or in default thereof that the said defendant T. lord F. and all persons entitled to redeem the said premises by virtue of the said indenture of the day of may be debarred and foreclosed of and from all right and equity of redemption of and in the said premises comprised in the said terra of 500 years ; Or that what shall be found coming upon taking the aforesaid account, may be raised by sale of a sufficient part of the said premises comprised in the said term of 500 years, and that all proper parties may join in such sale ; and that such money when raised may be paid to the said defendants the trustees upon the trusts of the said settlement and that the said trustees may be directed to pay to your orator what shall appear to be coming for arrears of interest of the said sum of £ out of the said money when paid to them as aforesaid. And that your orator and oratrixes may have such further or other relief in the premises as to your lordship shall seem meet and this case may require. May it please, &c. [see forms No. 1 and 3, p. 6.] R. S. Pray subpoena against E. F. A. F. E. 0. and J. B. and letter missive to T. lord F. 317 BILLS FOR REDEMPTION. 20. BILLS FOR EBDEMPTI0N.(1)° CIX. Bill by the heir at law of the mortgagors for redemption of freehold lands. To, &c. That plain- Humbly complained showeth unto your lordship your orator J. G. tiff's deceased of, &c. That J. G. the elder late of, &c. but now deceased, and E. (]) Upon a bill to redeem, a prima facie title is sufficient; and an issue will not be directed though the title is complicated if uncontradicted; Pymy. Bowrem.an,in note (a) 3 Swanst. 241; but a trustee in receipt of the rents of an old mortgaged estate under an old conveyance of the equity of redemption upon trtlst to sell and pay off certain debts which had been long since satisfied, was held not entitled to re- deem the mortgage ; James v. Biou ; Owen v. Flack, 2 Sim. & Stu. 600. On a bill to redeem, the person having the legal estate must be before the court, for otherwise the mortgagor cannot have complete reconveyance; Woody. Williams, cited 2 Madd. Ch. Pr. 191. A second mortgagee, on a bill to redeem a prior mortgage must make the heir of the mortgagor a party ; Palk v. Lord Clinton, 12 Ves. 48, 2d edit. Where a mortgagee has been in possession twenty years, without any impediment in the mortgagor to assert his title, such as imprisonment, infancy, coverture, or being beyond sea, (where it is not by having absconded) or if such impediment has been removed ten years, it is a bar to a redemption, see 1 Madd. Ch. Pr. 519 ; and the cases referred to in note {a), ibid. ; see also Harrison v. Hollins, 1 Sim. & Stu. 632; Price Y. Cooper, ibid. 34^, and Reeve v. Hicks, 2 Sim. & Stu. 403, in which last two cases the mortgages had been made by husband and wife. A mortgagee is always considered as prima facie entitled to costs, unless there be some circumstance of positive misconduct ; see Lomas v. Hide, 2 Vern. 185; Rams- den V. Langley, ibid. 5-36 ; Gammon v. Stone, I Ves. 339 ; v. Trecothick, 2 Ves. & B. 181 ; but the principle does not extend to a case where a solicitor had become an incumbrancer with regard to law expenses, taking a bond and judgment for his bill ; Detillin v. Gale, 1 Ves. 583, 2d edit, and the cases referred to in the notes. A mortgagor filing a bill to redeem must pay the costs of persons clainiing under the mortgagee, (e. g. trustees and cestui que trusts,) made necessary parties by this act; Welherell v. Collins, 3 Madd. Bep. 255. 1= On a bill to redeem land alleged to be mortgaged, the question whether the con- veyance was a mortgage or not, is to be decided by the rules of the common law ; Bod- well V. Webster, 13 Pick. 411 ; and redemption will be allowed, notwithstanding the lapse of time, where acts have been done, or solemn acknowledgments made, within the period, recognising the title as a mere mortgage;' Dexter v. Arnold, 3 Sumner, 152 ; and it seems that parol evidence is inadmissible to show that the mortgagor has relinquished his right to redeem. Scott v. Mc'Farland, 13 Mass. 309. Redemption will not be allowed before the time specified in a mortgage, even on tender of the principal of the debt, with interest to the stipulated time of payment, and costs. Abbey. Goodwin, 1 Conn. 3^?. There can be no redemption without an allegation of payment, or of a tender of the mortgage debt and interest. Saunders v. Frost, 5 Pick. 259 ; Bank of South Caro- • Una V. Rose, 1 Strobh. Eq. 257 ; Hoopes y. Bailey, 28 Miss. 328. But a bill for re- demption, which set forth a liquidation by the parties, of the amount due, and a tender and refusal thereof, was held not to be defective for want of an offer to pay what should be found due on account. Barton v. May, 3 Sandf. Ch. R. 450. The holder of an equity of redemption, who seeks to redeem after a sale, must pay the full amount of the mortgage, though the land sold for less. Bradley v. Snyder, 14 111. 263. Payment may be made or tendered after the day named in the deed. Rogan V. Walker, 1 Wisconsin, 527. In fact, any attempt to limit or fetter the right to re- deem, will be held void. Robinson v. Farelly, 10 Ala. 472 ; Henry v. Davis, 7 Johns. Ch. 40 ; Clark v. Henry, 2 Cowen, 324; Wrights v. Bates, 13 Verm. 341; Dougherty y. BILLS FOR EBDEMPTION. *318 '^his wife now also deceased, the late father and mother of your orator parents were, were in the right of the said E. seised in fee-simple of or otherwise i° ^ight of hi well entitled to two freehold fields, &c. And your orator further 1^°^^^^^^^ ex*! showeth that the said J. G. the elder, and E. his wife, in or about ecuted a mort- the year made some conveyance and assignment of the said pre- g^ge to the mises unto "W. B. of, &c. the defendant hereinafter named by way 'i''''^''^'*"*- of mortgage for securing the repayment of a certain sum of money with interest then advanced to the said J. G. by W. B. or by J. B. then of, &c. on the part of and as the agent of the said W. B. And your orator further showeth unto your lordship that the said That defend- W. B. upon or soon after the making of the said security, entered '^°'' !'°°^ ]?°^" . , ,, f . - ,, ., s . ■•',.■, session ot the into the possession of the said mortgaged premises or into the re- premises. ceipt of the rents and profits thereof, and hath ever since continued in s'uch possession and receipt, and the said W. B. or the said J. B. on his behalf also possessed himself of jiU the title-deeds relating to the said premises. And your orator further showeth that the said Death of J. G. the elder departed this life in or about the year , and plaintiff's pa- that the said E. Or. having survived her said husband departed this p^aintifi'be-'^ Colgan, 6 Gill & J. 275. If several are interested in the equity of redemption, and only one is willing to redeem, he must pay the whole mortgage debt. Gibson v. Cre- hore, 5 Pick. 146; Taylor Y.Porter, 7 Mass. 355; Smith v. Kdley, 27 Maine, 237. Such a tender must be absolute; where the plaintiff offered to pay if the defendant " would re-assign and transfer" to him, it was held insufficient ; Wendell v. New Hampshire Bank, 9 N. H. 404 ; and not only the original consideration, but subsequent advances made by the mortgagee, must be tendered; Ogle v. Ship, 1 A. K. Marsh. 287 ; nor can the mortgagor insist upon a release. Loring v. Cook, 3 Pick. 48. The bill need not allege an indebtedness for which it was given, and if alleged, it need not be proved. i)ay v. Perkins, 1 Sandf. Ch. R. 359. The plaintiff must be entitled to the legal estate of the mortgagor, or must claim a subsisting interest under him. Grant v. Duane, 9 Johns. 591 ; Purvis v. Brown, 4 Ired. Eq. 413. The equity of redemption is inherent in the lands, and binds persons coming in, in the past, as well as in the present. Bemein v. Bennett, 1 Dev. Ch. 144. If there is a merely technical variance between the mortgage set forth in the bill, and that produced, it will be disregarded, lladleyii. Chopin, 11 Paige, 245 An allegation that the mortgagor was seised in fee simple of the land, is a sufficient allegation that he was in possession, llolman v. Bank of Norfolk, 12 Ala. 369. In Indiana, it is required by statute, that a bill to foreclose a mortgage shall state whether any and what proceedings have been had at law for the recovery of the debt; the omission of such statement is fatal. McMullen v. Furnoss, 1 Smith, 73. A bill by a subsequent mortgagee, making a prior mortgagee a party, may pray a sale of the interest mortgaged, subject to the incumbrance of the prior mortgage ; or that he may be permitted to redeem the prior mortgage, and have the premises sold to pay such redemption-money and his own mortgage; or that the mortgaged pre- mises may be sold, if the prior mortgagee consents thereto, and the mortgages paid out of the proceeds, according to priority. Oihon v. Belleville White Lead Company, 3 Halst. Ch. R. 531. If the mortgage was given for indemnity, it should be alleged that the mortgagee had been compelled to pay money, or been otherwise damnified ; Lewis V. Rickey, 5 Ind. 152 ; and until such has been the case, cannot be foreclosed, Francis v. Porter, 7 Ind. 213. Not only in the case of a formal mortgage, but wherever a deed absolute on its face may be shown to be a security for antecedent advances, or for a loan made at the time, a redemption will be decreed on repayment of the amount lent, where the rights of bond fide purchasers, or of creditors without notice have not intervened. Walton v. Crowley, 14 Wend. 63; JaquesY, Weeks, 1 Watts, 261; Cornell v. Pierson, 4 Halst. Ch. 478 ; Parrington v. Pierce, 38 Maine, 447 ; Eldredye v. Jenkins, 3 Story, 181 ; Cole V. Ballard, 10 Harris, 431 ; Clark v. Henry, 2 Cowen, 324; Breckenridge v. Hull, 1 Robinson, 148 ; Harrison v. Lemon, 3 Blackford, 51 ; Miller v. Thomas, 14 Illinois, 428. Whatever facts are alleged to exist, dehors the face of the deed, whereby the conveyance became defeasible in its character, and an equity of redemption was created, should be set forth by apt statements in the bill. t\nt. 318 BILLS FOR REDEMPTION. came entitled life On or about^ &c. intestate, and without having made after the as heir at law death of her Said husband any conveyance or disposition of such to his mother, ^j^j^^ ^^^ interest as she retained at his death in the said premises, leaving your orator her eldest son and heir at law, who thereupon became entitled to the equity of redemption of the said mortgaged That defend- premises. And your orator further showeth unto your lordship ant made tija_t jj^g ga^jd W. B. from time to time made some small payments m"ntsto^the ^0 the said J. G. the elder in his life-time, and after his death to plaintiff's pa- the said E. G. out of the rents and profits of the said premises; and renti out of the Said W. B. applied the greater part of such rents and profits to thnt'^n^emort'^ his own use, and" by means thereof the said W. B. hath beenmore gage has been than repaid the principal and interest due to him on the security of satisfied. the said premises. And your orator hath frequently applied to the Applications gaij "W. B. and requested him to come to an account for the rents to the defend- ^^^ profits of the said premises so received by him, and to pay over to your orator what he should appear to have so received beyond the [ *319 ] *amount of the principal and interest due to him, and to deliver up the possession of the said mortgaged premises ; and your orator well hoped that the said defendant would have complied with such re- quests as in justice and equity he ought to have done, but that the said W. B. acting in concert with divers persons unknown to your orator, refuses to comply therewith. To the end therefore that, &c. [see form VI. p. 5; and the note at the end of the prayer, postea.'\ And that the said defendant may answer the premises ; and that an account may be taken of what if anything is due to the said de- fendant for principal and interest on the said mortgage, and that an account may also be taken of the rents and profits of the said mort- gaged premises which have been possessed or received by the said defendant, or by any other person or persons by his order or for his use, or which without his wilful default or negle-ct might have been received ; and that if it shall appear that the said rents and profits have been more than sufficient to satisfy the principal and interest of the said mortgage, then that the residue thereof may be paid over to your orator ; and that your orator may be permitted to redeem the said premises, your orator being ready and willing and hereby oifering to pay what if anything shall appear to remain due in res- pect to the principal and interest on the said mortgage ; and that the said defendant may be decreed to deliver up possession of the said mortgaged premises to your orator or to such person as he shall direct free from all incumbrances made by him or any person claim- ing under him, and may deliver over to your orator all deeds and writings in his custody or power relating to the said mortgaged pre- mises. [And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] J. L. Pray subpoena againt W. B. Note. — This bill was filed by the heir at law conceiving that some undue influence had been resorted to by the defendant in obtaining possession of the estate, and therefore the object of the bill is to dis- > cover the defendant's title, and it is framed in the shape of a bill of BILLS FOR REDEMPTION. 319 redemption, as for a mere bill of discovery it would have been liable to a demurrer ; and to avoid that fate, the interrogating part must be confined to the mere facts stated, and not ask for the defendant's title. *CX. Bill hy the devisee{2) of an estate which had been mortgaged [ *320 ] by the testator for a term of years, against his executor who was also his heir at law, and had taken an assignment from the mort- gagee, and got into possession of the estate. The devisee being tenant in tail, a , recovery was suffered by her and her husband and the estate limited to him in fee. The bill prays for an ac- count of the principal and interest due on the mortgage, and of what is due from the defendant in respect of part of the mortgaged premises in his own occupation, and of other parts let to tenants, and that if the mortgage was paid out of the testator's personal es- tate, that the amount of the moneys to be found due from the de- fendant may be paid to plaintiff ; but if not, then praying for an account of the testator's personal estate, and that the amount to be found due from the defendant in respect of rent may be set off against the amount to be found due on the mortgage-security — that the personal estate may be applied in aid, but if insufficient that plaintiff may redeem, that defendant may assign the premises to plaintiff', and deliver up the title-deeds, and also the possession of the premises. In the Exchequer. To, &;c. Humbly complaining show unto your honors your orator and ora- trix T. R. of, &c. and H. his wife, late H. C. spinster, daughter of I. C. the elder, late of deceased, debtors, &c. [see form No. 2, p. 2.] That the said I. C. being seised to him and his heirs or other- wise well entitled for some good and sufficient estate of inheritance of in or to certain messuages or tenements situate, &c. with their ap- purtenances, duly made and executed a certain indenture bearing Mortgage by date , and thereby in consideration of the sum of £, or some "iemiseto s. such sum paid to him by S. S. of, &c. demised or otherwise con- " veyed to the said S. S. her executors administrators and assigns the said messuages, &c. for the term of years, or some other number of years, but subject to a proviso or condition therein con- tained for redemption of the same on payment by the said I. C. his heirs or assigns of the said sum of £ or such other sum so lent to him as aforesaid unto the said S. S. her executors adminis- trators or assigns with such interest for the same at such time and in such manner as is therein mentioned. That the said mortgage money was not paid at the day or time Mortgage-mo- stipulated by the said indenture for payment thereof, but was con- °^y °°* P^'^- (2) To a bill by a devisee to redeem, the heir need not be a party unless the devisee claims to have the will established; Lewis v. Nangh, 2 Ves. sen. 430. 320 BILLS FOB KEDEMPTION. Arrears of in- tinued at interest, and there being then years interest or therea- terest paid to ^oytg ^^^ thereon the said I. C. in or about actually paid the the mort- ^ i_ ^i • i ct o gagee. Same to her the said &. fe. Deathofmort- That some time afterwards and while the said principal sum of gagor. £ remained unpaid (that is to say) on or about the said His will devis- I. C. died, having previously duly made and published his last will ing the mort- *and testament in writing bearing date and duly executed and to his dauo-h- attested as by law required for passing real estates, and thereby ter, plaintiff amongst Other things gave and devised to your oratrix his daughter H. R. in tail, p^g aforesaid mortgaged premises in tail,'] and appointed M. C. exe- [ *321 ] cutor thereof. Probate bythe That upon or soon after the decease of the said I. C. the testator, executor who the Said M. C. duly proved his said will in the proper Ecclesiastical possessed all Court, and possessed himself of all the personal estate and effects of estatr^''"^' the said testator to an amount much more than sufficient to pay all his just debts, funeral and testamentary expenses, and that your Title of plain- orator and oratrix in right of your oratrix became entitled under the '^ffs. gaid will to the said messuages, &c. subject to the aforesaid mortgage, A recovery and they have since suffered a common recovery thereof, and declared suffered by ^jjg ^ggg ^f ^j^g g^^j^ recovery to and in' trust for your orator and oratrix and his heirs, whereby he is become entitled to the equity of redemption of the said premises. Mortgage-mo- That shortly after the decease of the said I. C, he the said M. C. ney paid out having by means of the said personal estate and effects of the said ai estotef^^""" testator or otherwise paid to the said S. S. what was due to her for principal and interest upon her said mortgage, privately took an as- Assignment signment thereof from her, and by means thereof, as being the only by the mort- g^j^ a,n(i heir at law of his said late father the said testator, prevailed executor who upon the tenants of the said messuages, &c. to pay him the rent was the testa- which became due for the same respectively after the said assignment tor's heir at and being then in the possession of the residue of the said premises ceived the^" *^ tenant to his said late father continued in the possession thereof, rents. and hath ever since continued in the receipt of the rents and profits of the said other premises. Applications That being so entitled to the equity of redemption of the said to the defend- mortgaged premises as aforesaid, plaintiffs have frequently applied to the said M. C. and desired him to inform plaintiffs what had been paid by him to the said S. S. in discharge of the principal or interest on the said mortgage, and how much was actually and bona fide due thereon at the time the said mortgage was so assigned to him, and what sum or suras of money had come to his hands on account of the rents and profits of the said messuages, &c. and what sum of money has become due to plaintiff since the death of the said tes- tator, for or in respect of the premises so possessed or occupied by the said defendant as aforesaid, in order to ascertain what after all just and reasonable allowances, remained due for principal and inter- est on the said mortgage, so as to enable plaintiff T. R. to redeem the same in case it should appear that the same had not been satis- fied by or out of the personal estate and effects of the said I. C. the said testator. And plaintiffs hoped that the said M. C. would have complied with such their reasonable requests, and in case it should BILLS FOR REDEMPTION. 321 appear that the said mortgage had heen so satisfied by him out of such personal estate, or if otherwise, that upon plaintiff T. R. pay- ing to him what remained due for principal and interest on the said mortgage after all just and reasonable allowances, he would have assigned the said mortgage to or in trust for plaintiff T. R. or his heirs in such manner as should be reasonable or necessary in that behalf, and that *he would have delivered up to plaintiff T. R. all [ *322 ] the title-deeds or writings in his custody or power relating to the said mortgaged premises, and would have let plaintiff into the pos- session thereof; and especially as plaintiff T. R. frequently offered to pay unto the said M. C. what should appear to be so due on the said mortgage as aforesaid together with months' interest more than what was so due, as a compensation or a satisfaction for his not having had the usual notice oi plaintiff's intention to redeem the said premises. But novt so it is, &c. \_Seeform TV. p. 5.] Pretence that the said testator never made and executed his last Pretence that will and testament of such date purport and effect as is hereinbefore 10 will was mentioned and set forth, but the said defendant at other times ad- f/^ade^testa- mitting the contrary thereof to be true, pretends that the said tes- tor was of un- tator was not of sound and disposing mind when he made and exe- sound mind, cuted the same, and that such will was not duly executed and attested ^""^ ^^^^ ^^^^ so as to pass freehold estates of inheritance, and that the said mort- ^^ecuted and gaged premises descended to him the said defendant as the said tes- the mortgaged tator's heir at law. premises de- Charge the contrary of such pretences to be the truth, and that defendant" * the said testator did when of sound and disposing mind duly make charge the and execute his last will and testament in writing of such date, pur- contrary. port and effect as is hereinbefore mentioned and set forth, and that the same was duly executed and attested so as to pass real estates. Pretence that the defendant hath some estate or interest in the Pretence of premises other than by and under the said will, or any assignment of some interest the said mortgage from the said S. S. but what estate or interest in ™ *"* P'^^" , , ° 5 ,. mises, but particular he reiuses to discover. -s^hat he re- Charge that the defendant haxl not at the time of the death of fuses to dis- the said testator or since any right or interest whatsoever in or to '^°^^^- the said mortgaged premises or any part thereof, save by or under d^Sant^ne- the said will and some assignment of the said mortgage from the ver had any said S. S., and which assignment though now in the custody or power interest save of the said defendant, he refuses to discover and produce to plaintiffs ™der the will, • • • £tDCl some £IS" or either of them, with a view of continuing in the possession and signment of receipt of the rents and profits of the said mortgaged premises to the mortgage. the prejudice of plaintiffs. And the said M. C. will at times ac- Defendant ad- knowledge that he paid to the said S. S. what was due to her for ™'*^ *^.^* ^^ principal and interest on the said mortgage, and that he took an ^^^ mortgage assignment thereof to or in trust for himself, but then he pretends and taken an that the same was so paid with his own proper money, and the assignment. rather as he pretends that the personal estate and effects of the said p^^'^°j. testator were inadequate to satisfy and discharge the money due for that\he'same principal and interest on the said mortgage, or at least that very was paid with little of such personal estate hath ever come to his hands or been ^'^ own mo- T 1 ■,■ nev, and that received by mm. 322 BILLS FOR KBDEMPTION. the personal Charge that the personal estate was of very considerable amount suffi'^ '^^^ '"" ^^^ value, and that the whole or the greatest part thereof hath come CharTth *° ^^^ hands of him the said M. 0. or to the hands of some other contrary. ^ person in trust for him or for his use. And although the said de- Charge as to fendant hath in his custody or power some book or books of account, books, &c. entries, memorandums or writings tending to show or ascertain the particulars and value of such personal estate and eifects, and [ *323 ] *what part thereof hath come to the hands or to the use of him the said defendant as aforesaid, or relating to such personal estate and effects or some part thereof, yet he refuses to produce or discover the same, insisting that plaintiffs have no right whatsoever to be satisfied in or touching the premises. That if the Insist that in case it shall appear that the said mortgage was satis- ™a°d*^^t^fTh^ fied as aforesaid by or out of the personal estate and effects of the personalty it^ ^^^^ testator, the Same ought to be assigned to or in trust for plain- ought to be tiffs, or in case it hath not been so satisfied, a sufficient part of the assigned to gaj^ testator's personal estate ought to be applied in satisfaction plamtrffs. ^^^^^^f_ Charge that plaintiff T. R. has been so far from refusing to re- deem the said mortgage that he hath at all events and at different times Offer made to offered to pay what should appear to be due for principal and interest the defendant on the Said mortgage without any regard to his said claim on the said mortage ^ personal estate and effects as aforesaid in respect thereof but without prejudice thereto. Application to Charge that on plaintiff T. R. called on the said defendant the defendant at his house in K. aforesaid, and desired to know how much was then orderto a '° *^"^ ^^^ principal and interest on the said mortgage, and upon his re- tain the fusing to disclose the same, plaintiff T. R. actually tendered to him amount due the Sum of £ in satisfaction of what was then due to him for on the mort- principal and interest on the said mortgage together with months' A to \q J interest on the said principal sum more than what was then due, as A tender made ,. t '^ . „ ^ . , •inr-n ci- i to the defend- ^ compensation and satisfaction to the said defendant for his not hav- ant. ing had the usual notice of plaintiffs' intentions to redeem the said mortgaged premises, offering at the same time to pay any further sum to the said defendant in case he could make it appear that the said sum of was not sufficient for answering the purposes aforesaid, but which in fact it was and which the said defendant then admitted it to be, but nevertheless he repeatedly refused to accept the same. All which actings, &c. [_See form VI. p. 6, interrogating to the stat- ing and charging parts.'] Prayer. And that an account may be taken of what was due for principal and interest on the said mortgage at the time the said assignment thereof was so taken by the said defendant as aforesaid ; and that an account may be also taken of what hath become due or ought to be paid from or by the said defendant for or in respect of the rent for the premises so occupied by him since the death of the said testator, and also of all and every the sum or sums of money which since the death of the said testator have been received by the said defendant or by his order or for his use, for or an account of the residue of the said mortgaged premises ; and in case it shall appear that the said mortgage has been satisfied by the said defendant, by and out of the BILLS POK REDEMPTION. 323 personal estate of the said testator, then that what shall appear to be coming for or in respect of the rents and profits as aforesaid after all just and reasonable allowances, may be paid to plaintiff T. R. And in case it shall appear that the said mortgage was paid and satisfied by the proper money of the said defendant, then that an account may be taken of the personal estate of the said testator, and of what is due for principal and interest on the said mortgage as aforesaid ; and that what shall appear to be so *coming on account of the rents and [ *324 ] profits after all just allowances, may in such case be set off in part satisfaction or discharge of what shall appear to be due for principal and interest on the said mortgage, and in such case that a sufficient part of testator's personal estate may be applied in discharge of the said mortgage money and interest ; and if the same shall not be suf- ficient, then that upon plaintiffs' paying to the said defendant what shall appear to be then remaining due for principal and interest, that the said defendant may be decreed to assign or convey the said mort- gaged premises for the residue of the said term therein granted, to or in trust for plaintiffs in such manner as this court shall direct, and may also deliver up to plaintiffs all the title-deeds evidences and writings whatsoever in his custody or power relating to or concern- ing the said mortgaged premises or any part thereof, and that plain- tiff may also be let into the possession thereof. \_And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] J. L. CXI. Bill hy the customary heir of the mortgagor against the mort- gagee for redemption of copyhold premises, and an account of the rents and profits received hy the defendant. To, &c. Humbly complaining showeth unto your lordship your orator T. M. of, &c. That E. M. late of, &c. widow, and now deceased, the That plain- mother of your orator, was in and before the month of , seised tiff's mother to her and her heirs according to the custom of the manor of B. in "^^^ ^^h^\i °^ the county of S. of and in a certain copyhold or customary messuage tate. or tenement and premises with the appurtenances holden of the said manor and lying in, &c. And your orator further showeth unto your lordship that the said E. M. having occasion to borrow a sum of money, did on or about apply to I. C. M. of, &c. Applications the defendant hereinafter named, to advance and lend her the sum J^y ^^^ ^°^ ^ of £ upon mortgage of the said copyhold messuage or tene- ment and premises, and the said I. C. M. having consented so to do your orator's said late mother duly surrendered the said copyhold Conditional or customary messuage or tenement according to the custom of the surrender said manor, to the use of the said I. C. M. and his heirs, upon "urfty.'^^ ^ ^*" condition nevertheless that the said surrender should be void upon repayment by the said E. M. her heirs executors administrators or 324 BILLS FOE REDEMPTION. assigns to the said I. C. M. his executors administrators or assigns of the said sum of £ with interest for the same after the rate Mortgage-mo- of £5 per cent, on . And your orator further showeth that the nej not paid, gajd gum of £ not being repaid within the time mentioned in Mortgagee ad- the said Condition, the said I. C. M. was on or about admitted mitted. tenant to the said premises according to the custom of the said manor, to hold to him the said I. C. M. his heirs and assigns, sub- [ *325 ] ject *nevertheless to the equity of redemption thereof by the said E. M. her heirs or assigns. As in and by the said surrender and ad- mission reference being thereunto respectively had will appear. Mortgagee And your orator further showeth unto your lordship that the said sion Tonl'd- ^- ^- ^- "P°° ^^^ advancing the said sum of £ to the said E. T£mcing°tlie ' ^- entered into possession of the said mortgaged premises or into money. the receipt of the rents and profits thereof ; and the said I. C. M. hath ever since been and now is in such possession or receipt, and by means thereof and of various sums of money from time to time That mortga- paid to him by the said E. M., the said I. C. M. hath been greatly gee has been more than repaid the said principal sum of £ and all interest prmcfpai^and thereon. And your orator further showeth unto your lordship that interest. the Said E. M. departed this life intestate on or about leaving Death of your orator her youngest son and heir at law and heir according to plaintiff's mo- the Custom of the said manor of B., and thereupon your orator be- ^^^^' came entitled to the equity of redemption of the said mortgaged pre- applications mises. And your orator further showeth unto your lordship that he to defendant, j^g^^j^ ^^ himself and his agents repeatedly applied to the said I. C. M. and requested him to come to an account with your orator for the moneys from time to time paid to him in discharge of the said mortgage-money by the said E. M. in her life-time, and for the rents and profits of the said mortgaged premises received by him in the life-time of the said B. M. and since her death, and to pay over to your orator what upon such account he shall appear to have received beyond the said principal sum of £ and interest thereon, and to surrender the said copyhold premises to the use of your orator and his heirs. And your orator well hoped that the said I. C. M. would have complied with such your orator's reasonable requests as in jus- tice and equity he ought to have done. BoT now SO it is, &c. Pretence that \_see form IV. p. 5. J And the said defendant pretends that the mo- recer°d^h^ neys which were paid to him on account of the said mortgage by the not been more Said E. M. in her life-time and the rents and profits of the said mort- than sufficient gaged premises received by him, or which but for his wilful default to keep down qj. neglect he might have received since he first entered into the pos- session of the said premises as aforesaid, have not been more than sufficient to satisfy and keep down the interest from time to time ac- Charge the cruing due on the said principal sum of £ . Whereas your ora- contrary. j-qj. charges the contrary thereof to be the truth, and so it would ap- pear if the said defendant would set forth as he ought to do a full true and particular account of all and every the moneys received by him in or toward satisfaction of the said mortgage-money and when and from whom received ; and also a full true and particular account of the rents and profits of the said premises received by him since he first entered into possession of the said premises as aforesaid, or BILLS FOR REDEMPTION. 325 which but for his wilful default and neglect might have been received by him, and when and from whom and on what account respectively received. And your orator further charges that in order that the Charge of a said defendant might have no pretence to keep from your orator the tender made possession of the said mortgaged premises, your orator in the month ant'^amTre-'^' of last, tendered to him the sum of £ subject to a future fusai bjhim account as to the receipts of the said defendants by the means afore- to accept the said. *And your orator at the same time earnestly desired the said ^^^ ^'^™^- defendant to furnish your orator with the particulars of the sums re^ L "^" J ceived by him the said defendant by the rents and profits of the said premises, or otherwise in or towards satisfaction of the said mortgage- moneys, and offered to pay immediately any balance that should be due beyond the said sum of £ if any such there were ; but the said defendant refused to accept the said sum of £ or to deliver to your orator any account of his receipts by the rents and profits of the said premises or otherwise, and told your orator that he might file a bill in equity against him as soon as he pleased. All which act- ings, &c. \_see form VI. p. 5, interrogating to the stating and charg- ing parts.^ And that the said defendant may answer the premises ; and that Prayer, an account may be taken of the rents and profits of the said mort- gaged premises which have been received by the said defendant since his possession thereof as aforesaid, or which but for his wilful default or neglect might have been so received ; and also an account of all other the sums which have been received by the said defendant in or towards satisfaction of the said mortgage-money ; and that an account may also be taken of the principal and interest which have accrued due on the said mortgage; and in case it shall appear that the rents and profits and other receipts of the said defendant exceed the amount of the said principal money and interest, then that the said defendant may be directed to pay to your orator such excess, your orator being ready and willing and hereby offering to pay to the said defendant what if anything shall on the balance of the said accounts appear to remain due on such mortgage to the said defendant ; and that the said defendant may surrender the said mortgaged premises unto your orator or such other person as he shall appoint, free and clear of all incumbrances done by him or any person claiming by from or under him, and may deliver up to your orator all title-deeds or writ- ings in his custody or power relating to the said mortgaged premi- ses. [^Andforfurther relief, seeformYIlI. p. S-l May it please, &c. [see form No. 1, p. 6.] OXII. Bill to have goods re-delivered which have been deposited as a security for money lent. Humbly complaining showeth unto your lordship your orator A. S. of, &c. that your orator having occasion for a sum of money for the Application purposes of his business made application to P. S. of, &c. the defen- ad'TancemeTt^ dant hereinafter named to lend him the same, and thereupon the said of money on 326 BILLS FOR KEDBMPTION. the security of goods. [ *327 ] A bill of sale delivered to defendant. Agreement that plaintiff should be at liberty to re- deem the goods. Applications to the defend- ants. Prayer. P. S. - on or about advanced and lent to your orator the sum of £ , and in order to secure the repayment thereof with interest, your orator deposited with the said defendant a box of tanned boot legs and tops which were of the value of £ and upwards, and at the same time executed and delivered *to the said defendant a bill of sale of the said goods so deposited with him, but it was not meant and intended thereby either by your orator or the said defendant that the said transaction should amount to an absolute sale of the said goods to the said defendant, but it was expressly agreed between your orator and the said defendant, that your orator should nevertheless be at liberty to redeem the same. And your orator further showeth that being desirous to redeem the said goods, he hath repeatedly applied to the said P. S. and hath offered to repay him the said sum of £ with lawful interest thereon, on having the said goods re-delivered to him, with which just and reasonable requests your orator well hoped that the said P. S. would have complied as injustice and equity he ought to have done. But now so it is, &c. [see form lY.p. 6.] To the end, &c. [see form VI. p. 5, interrogating to the statements.'\ And that the said defendant may answer the premises ; and that an account may be taken of what is due to the said defendant for prin- cipal and interest in respect of the said loan of £ , and that upon payment thereof by your orator the said defendant may be decreed to deliver over to your orator the said goods so deposited with him as aforesaid. [And for further relief, see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6. J J. L. CXIII. Prayer of a hill fled by a devisee of a moiety of an estate in the island of M. against the representatives of the mortgagees for a redemption, account, and re-conveyance, with the Interroga- tory/or a discovery as to the rents and profits received by the de- fendants. Interrogatory. And that the said defendants J. H. and A. his wife, T. T. and W. B. may set forth a full true and particular account of all and every sum and sums of money which have been received by or come to the hands of them or any or either of them, or the said W. H. R. B. and W. B. deceased during their respective life-time or any or either of them, or any other person or persons by their or any or either of their order, or for their or any or either of their use, for or in respect of the rents and profits of the said mortgaged premises and every part thereof, and when and by whom with all the particulars thereof, and what (if any thing) now remains due to them the said defendants J. H. and A. his wife, T. T. and W. B. as such representatives as aforesaid for the principal and interest and how much (if any thing) hath been overpaid thereby. Prayer. And that plaintiff may be at liberty to redeem the said mortgaged premises ; and that an account may be taken by and under the di- BILLS FOR REDEMPTION. 327 rection and decree of this honorable court of the rents and profits of the aforesaid mortgaged premises and every part thereof received by the said W. H. R. B. and W. B. deceased during their life-time, and by the said defendants J. H. and A. his wife, T. T. and W. B. since their decease or any one of them, or by any person or persons [ *328 1 by their or any or either of their order or for their or any or either of their use, or which without their wilful neglect or default might have been received by them the said mortgagees or their said repre- sentatives or any or either of them since they respectively entered into possession of the said premises ; and that an account may also be taken of the principal money and interest secured by the said in- dentures of mortgage, and what (if any thing) now remains due thereon ; and upon payment thereof that plaintiff may redeem the same premises ; and that in case the said W. H. R. B. and W. B. deceased, and the said defendants J. H. and A. his wife, T. T. and W. B. shall appear to have received more than the said mortgage- money and interest thereon at the rate of Ql. per cent, per annum, then that the said defendants J. 11. and A. his wife, T. T. and W. B. as the representatives of the said W. H. R. B. and W. B. de- ceased, may be decreed to pay same to plaintiff and defendant E. M. {who was entitled to the other moiety ;) and that the said defend- ants J. H. and A. his wife, J. F. and H. his wife, J. P. B. and A. his wife, T. T. W. B. R. B. and D. B. may be decreed to re-convey and re-assign the said mortgaged premises to plaintiff and the said defendant E. M. as tenants in common free from all mesne charges and incumbrances, and to deliver up possession thereof to plaintiff and defendant E. M. together with all title-deeds, papers and writ- ings in their or any or either of their custody, possession or power relating to or concerning the said mortgaged premises. [And for further relief. '\ CXIV. Charging part in a hill for redemption filed against an as- signee of a mortgage security. Prayer for an account of the money paid by the defendant on the assignment being made to him, of the interest since accrued due, and of the rents and profits received by the defendant ; that the amount of rents may he set off against what shall be found due in respect of principal money and interest, and the balance paid over to plaintiff ; or if any thing should be found due to the de- fendant, then that upon payment to him he may re-convey and deliver up possession of the premises, together ivith the title-deeds. And the said defendant J. S. pretends that the rents and profits Pretence that of the said mortgaged premises during his possession thereof have ^^^ ''^"'s have not been more than sufficient to keep down the interest on the fic'en^okelp principal sum paid by him since the assignment to him of the (jown the in- said mortgage. Whereas your orator charges the contrary thereof terest of the to be the truth, and so it would appear if the said defendant ™<"''gage. would set forth as he ought to do a full true and perfect rental ^^^"^^^ *^ 328 BILLS FOR REDEMPTION. contrary to be and particular of all and singular the said mortgaged premises, true, and that ^j^^ \^j ^jiom the Same have been respectively occupied since appear°from t^^ possession thereof by the said defendant, and at what yearly the accounts and Other rent and value, and a full and true account of all and required. every Sum and sums of money received by the said defendant *or [ *329 ] for his use for or in respect of the rents and profits of such pre- mises, and when and from whom and for what in particular the same Charge that yfere SO received. And your orator further charges that the said hTs kf^ac^-"' defendant hath from time to time kept accounts of the rents and pro- counts of the fits of the said premises as the mortgagee thereof, and hath in other rents, and has rcspects long since the said assignment so made to him as aforesaid in other re- treated and considered himself as the mortgagee of the said premi- as^mortgagee. ^^s, and in particular your orator charges that the said defendant That he filed some time since caused a bill for the foreclosure of the equity of re- a bill of fore- demption of the said mortgage to be filed in some court of equity, to closure. ^q prepared for that purpose. And the said defendant sometimes Pretence that pretends that the said equity of redemption was absolutely fore- redemption closed by the decree of some competent court, but the particulars was foreclos- thereof and in what court the said defendant refuses to discover. ^^- Whereas your orator charges that if any such decree was made that Charge that if ^jjg game is not binding upon your orator, inasmuch as the said G. cree was ^" -^- ^^1^° ^^^ ^^^n entitled to the said equity of redemption was not made, the a party thereto. And your orator further charges that the said de- same is not fendants M. S. J. S. and M. B. claim some right and interest in the plaintiff °° premises ; but how they make out the same they respectively refuse Claims set up to discover. by the other That an account may be taken of the principal money paid by the defendants. gaid defendant J. S. on the assignment of the said mortgage so made Prayer. to him as aforesaid, and of the interest which hath since accrued due thereon, and also an account of the rents and profits of the said mortgaged premises which have been possessed or received by the said defendant or by any other person or persons by his order or for his use, or which without his wilful default or neglect might have been received ; and that what shall be coming on account of the said rents and profits may be applied in the first place in payment of the interest, and then in sinking the principal due to the said defendant on the said mortgage, and the residue (if any) paid over to your ora- tor ; and that the said defendant in such case, or if it shall appear that anything is remaining due to the said defendant on the said mortgage then upon payment by your orator of what shall be found due, may be decreed to assign the said mortgaged premises to your orator, or as he shall appoint, free from all incumbrances done by him the said defendant, and may deliver up the possession of the said mortgaged premises to your orator, together with all deeds and writ- ings relating thereto. [^And/or general relief.'] BILLS FOR THB APPOINTMENT OF NEW TEUSTBES. *330 *22. BILLS FOR THB APPOINTMENT OF NEW TRUSTEES.(l) CXIX. Bill to remove trustees, f>ne refusing to act, and the other a prisoner for debt having applied part of the trust moneys to his own use. Prayer for an account, and for an injunction to restrain them from any further interference ; — also for a-reference to a Master to appoint new trustees, and for a receiver.'^ To, &c. Humbly complaining sbow unto your lordship your orator and Deed of as- oratrixes J. B. of, &c. and S. his wife, and S. E. the younger, spin- signment of (I) The court will control a trustee in the exercise of a power to appoint new trustees, although given in the fullest words ; therefore trustees parties to a suit, will not be allowed to exercise a power of appointing new trustees without the authority and direction of the court, and a reference to the Master to approve of the persons proposed ; Webb v. Earl of Shajteabury, 7 Ves. 480. So where trustees having such power, will not exercise it without coming to the court, there must be a reference to the Master; v. Robarts, 1 Jac. & W. 251. See further 2 Madd. Ch. Pr. 161, 2. In BayUy T. Mansell, 4 Madd. 226, on a bill filed for the appointment of new trus- tees, a decree was made accordingly and for a conveyance to them, but the court re- fused to admit a clause in the conveyance to enable the new trustees to appoint others in their stead if it should become necessarj', there being no provision in the trust deed for that purpose. Where personal property is bequeathed to executors as trustees, the probate of the will is an acceptance of the trusts; Mucklow v. Fuller, Jac, E. 198; q. v. as to the Jiability of one trustee for the acts of his co-trustee. Trustees of a charity are never appointed without a reference; but where the fund was very small it was ordered that the Master should appoint the trustees at once, without coming back to the court; AUorney-Otneral v. Earl of Arran, 1 Jac. & W. 229. A trustee seeking the direction and indemnity of the court as to the execution of his trust, is whether plaintiff' or defendiint, entitled to his costs unless the act re- quired to be done leads to no responsibility, and the motive of the trustee is obviously vexatious; Curleis v. Chandler, 6 Madd. 123. See also Taylor v. Glanville, 3 Madd. 178 ; Mohun v. Mohun, 1 Swanst. 201. Trustees on applications to the Court of Chancery, generally obtain costs as between attorney and client; Bea. on Costs, 157; and see Fearns v. Young, 10 Ves. 184, 2d edit. ^ Where a sole trustee for infants, appointed under a will, dies, and the will does not provide for the appointment of a successor, a court of equity will appoint one. Dunscomh v. Dunscomb, 2 Hen. & M. 1 1. And where it was shown by the petition, that the cestui que Irusi was prohibited by the laws of the State from coming within its limits, the court substituted for such trustee, a person living in the State where the cestui que trust resided. Ex parte Tunno, 1 Bailey, Ch. 395. But a court of equity will not appoint a person residing in a foreign jurisdiction, without security for the faithful discharge of his duties ; and the sureties must be persons amenable to the jurisdiction of such court. Ex parte Robert, 2 Strobh. Eq. 86. Though the proceeding to remove a trustee must be by bill, yet a new trustee may be appointed upon petition. 1 Bailey, 489. If one of several trustees dies, and the others refuse to accept the trust, the trust devolves upon the Court of Chancery, under the revised statutes of New York ; and the parties interested may apply to the court to have a receiver appointed to collect the rents until a new trustee is appointed. McCosker V. Brady 1 Barb. Ch. R. 329. In Maryland, the Court of Chancery has no jurisdic- tion in the appointment and removal of trustees of insolvent debtors, the whole sub- ject, under the statutes, resting with the courts of law. Powles v. Dilley, 9 Gill, 222, and' 2 Md. Ch. Decis. 119. Where a trustee, appointed by a will, refuses to accept the trust and a trustee is appointed by a court of equity, he derives his power from 26 330 BILLS FOR THE APPOINTMENT moneys and ster, the daughter and only child of your orator and oratrix J. E. effects to the and S. his wife, That by indenture bearing date , and made be- defendants as ^^^^^ ^^^^ ^^^^^^^ ^^^ oratrix J. E. and S. his wife of the one part, ^ ■ and N. B. of, &c. and R. P. late of, &c. but now a prisoner in his majesty's gaol of (the defendants hereinafter named) of the other part, after reciting that, &c. {stating the indenture.'] As by the said indenture to which your orator and oratrixes crave leave to refer That R P. ■^'i^" produced will appear. And your orator and oratrixes further hath princi- show unto your lordship that the said R. P. hath principally acted pally acted j^ tijg trusts of the said indenture, and hath by virtue thereof from th^ ^onw *™® *° ^^^ received considerable sums of money and other effects, to to°0Nvn *but the said R. P. hath applied only a small part thereof upon the use. trusts of the said indenture, and hath applied and converted the resi- [ *381 ] due thereof to his own use, and in particular the said R. P. hath within a few months past received a considerable sum from the estate and effects of the said C. E. the whole of which he applied to his own Applications ^^^- -^"^^ 7°"'' orator and oratrixes further show that they have by to the defend- themselves and their agents repeatedly applied to the said R. P. and ants. N. B. for an account of the said trust property received and possessed by them, and of their application thereof. And your orator and oratrixes well hoped that the said defendants would have complied with such their reasonable requests as in justice and equity they ought to have done. But now so it is, &c. [see form IV. p. 5.] Pretence that And the said defendants pretend that the trust property and effects the property possessed and received by them were to an inconsiderable amount, ■"■'^s 'Dcons^d- j^jj(j (.jjj^^ ^.jjgy jj^^g jj„ly applied the same upon the trusts of the been^du'ly ap- aforesaid indenture. Whereas your orator and oratrixes charge the plied. contrary of such pretences to be the truth, and that so it would ap- Charge the pear if the said defendants would set forth as they ought to do a full contrary. ^^^ jj-^g account of all and every the said trust property and effects which they have respectively possessed and received, and of their application thereof. And your orator and oratrixes charge that the said R. P. threatens and intends to use other parts of the said trust property and to apply the same to his own use, unless he is re- charge that strained therefrom by the injunction of this honorable court. And the defendants your orator and oratrixes further charge that he as well as the said ought to be jj -g Qugjjt tQ i,Q removed from being trustees under the said inden- removed, and & & • ^ j i. it- new trustees ture, and that some other persons ought to be appointed by this appointed, honorable court as such trustees in their place and stead, and that and in the jj^ ^.jjg jjjeantime some proper person ought to be appointed to re- IllGQ.n tlCQ6 £1 JL 1 I CD ij. receiver ap- ceive and collect the said trust property. All which actings, &c. pointed. [see form VI. p. 5, interrogating to the stating and charging parts.] Prayer. An^d that the said defendants may answer the premises : and that the court, and not from the will, and can only execute the trust so far as directed by the court. Harris v. Biicker, 13 B. Monroe, 564. Where an application is made to the court for the appointment of a trustee, all persons interested may appear and become parties, and act for their interest. JBass v. Fountleroy, 1 1 Texas, 698. A court of equity cannot substitute new executors as such, for those named by a testator; but when their duties as executors have terminated, and they have become simply trustees, the power conferred by the Revised,,Statutes of New York upon courts of equity, to compel the resignation of a trustee, and to appoint another in his place, is applicable, and maybe exercised. Leggelt v. Hunter, 25 Barb. (N. Y.) 81. OF NEW TRUSTEES. 331 an account may be taken of all and every the said trust property and effects which have or but for the wilful default or neglect of the said defendants might have been received by them or either of them, or by any other person or persons by their or either of their order, or to their or either of their use ; and also an account of their applica- tion thereof; and that the said defendants may respectively be de- creed to pay what shall appear to be due from them upon such ac- count ; and that the said defendants may be removed from being trustees under the said indenture, and that it may be referred to one of the Masters of this honorable court to appoint two other persons to be the trustees under the said indenture in their place and stead ; and that in the meantime some proper person may be appointed to receive and collect the said trust estate and effects, and that the said defendants may be restrained by the order and injunction of this honorable court from any further interference therein. [_And for further relief, see form VIII. p. 5.] May it please, &c. [see forms No. 1 and 4, p. 6.] J.L. *CXX. Bill for the appointment of a new trustee under a marriage [ *332 ] settlement, in the room of one desirous to he discharged, there being no such power therein contained.{2) Humbly complaining show unto your lordship your orators and oratrixes I. M. P. of, &c. and E. his wife, and A. P. and 0. P. in- fants under the age of twenty-one years, by the said I. M. P. their father and next friend, and S. N. M. of, &c. [the other trustees under the settlement,'\ That by certain indentures of lease and re- Indentures of lease bearing date respectively, &c. the release being of three parts, j^"-^® ^°^ '|^" and made or expressed to be made between, &c. [stating the inden- tiement. ture of release.'} But the said indenture of release contained no power or authority to appoint a new trustee in the place or stead of either of the said trustees therein named, who should decline to act in the said trusts, or be desirous to be removed therefrom. As in and by the said indentures, &c. And your orators and oratrixes fur- The marriage ther show unto your lordship that the said intended marriage whs duly solemn- soon afterwards had and solemnized between your orator I. M. P. and your oratrix B. P. ; and that your orator and oratrix A. P. and C. P. are the only children of the said marriage. And your orators and oratrixes further show that the said defendant I. P. L. declines to act in the trusts of the said indenture, and is desirous to be dis- Defendant de- charged therefrom, but by reason that no power is reserved in the sires to be dis- said indenture for the appointment of a new trustee, your orators *= ^""^^ ■ and oratrixes are advised that he cannot be discharged from such trusts, nor any new trustee appointed without the aid of this honora- ble court. To THE END therefore that the said defendant I. P. L. (2) See note (1), antea, p. 330, and Bayley v. Mansell, there cited. 332 BILLS FOR THE APPOINTMENT may upon his corporal oath, &c. [Proceed as in formNl. p. 5, and interrogate to the statements^] Prayer. And that the said defendants may answer the premises ; and that it may be referred to one of the masters of this honorable court to appoint a new trustee under the said marriage settlement, in the place and stead of the said defendant ; and that the said defendant may be directed to join in such instrument or instruments as may be ne- cessary for conveying or releasing the said trust premises to your orator S. N. M. and such new trustee upon the trust of the said set- tlement ; and that thereupon the said defendant may be discharged from the trusts of the said indenture. [And for further relief see form VIII. p. 5.] May it please, &c. [see form No. 1, p. 6.] J. L. [ *333 ] *CXXI. Bill by a trustee for the removal of his co-trustee refusing to act under the trxists of a will, and for the appointment of a new trustee in his place. Bill states the will, testator's death, and the probate ; that the personal estate is insufBcient, and that it is therefore necessary to sell the whole or part of the real estate pursuant to the directions of the will. Applications by the plaintiff to the defendant, who was named a trustee in the will, to join with plaintiff in carrying the trusts of the will into execution, and for that purpose to sell the tes- tator's estates to pay oif his debts, and otherwise to act in the trusts reposed in them by the will. That the defendant refuses to act in the trusts of the will, and therefore plaintiff is advised and humbly insists that the said C. H. ought to release and assign all his trust estate and interest in the said premises unto plaintiff his co-trustee, or otherwise that a new trustee ought to be appointed in the place of the said C. H., and the said trust estate conveyed unto plaintiff and such new trustee upon the trusts mentioned in the said will. But the said C. H. refuses to assign or convey the trust estates and premises or any part thereof, alleging that he cannot do the same with safety without the directions and indemnity of this honorable court. To the end therefore that the said C. H. may upon his corporal oath, &c. [Proceed as inform VI. p. 5, and interrogate to the statements.'] And that the said defendant C. H. may be discharged from the trusts of the said will, and may release and convey all his interest in the said trust estates and premises, according to the nature thereof, x).x\io plaintiff \i\?, co-trustee, or that a new trustee may be appointed in the place and stead of the said C. H. ; and that the trust estates^ and premises maybe respectively duly conveyed and assigned accord- ing to the different natures thereof, unto-plaintiff a.x\A such new trustee and their heirs, upon the trusts mentioned and expressed in the said testator's will, and that all proper parties may be decreed to join OF NEW TRUSTEES. therein. \_And for further relief, see form VIII. p. 5.] May it please, &c. \_seeform No. 1, p. 6.] J. L. *OXXII. Bill hy a surviving trustee, praying to he discharged from [ *334 ] the trusts of a will on the ground of obstruction hy the hushand of cestui que trust, and for the appointment of new trustees, and that plaintiff may he at liberty to retain his costs out of the trust moneys, or that he may he paid the same hy the defendant the husband. Praying also for an account of the rents impro-perly received by the husband, and for an injunction to restrain him from proceed- ing at law against the tenants, and from receiving any further rents, and for a receiver in the mean time. Humbly complaining showeth unto your lordship your orator G. B. of, &c. That J. C. of, &e. was in his life-time and at the time of his death hereinafter mentioned seised and possessed of or well entitled to a considerable real and personal estate, and being so seised and possessed he the said J. 0. on or about, &c. duly made and published his last will and testament in writing, and which was executed, &c. And thereby after confirming an indenture of settlement therein Statement of mentioned of the day of , and the trusts therein men- testator's will, tioned, and which have since expired by length of time or other- thereto."" wise ; and after giving and bequeathing unto E. S. therein named an annuity of £ per annum, and to his sister E. R. an an- nuity of £ per annum, and after charging his real and per- sonal estates with the payment thereof, he gave and devised, &c. [all his estates to plain/tiff and S. B. I. H. and Gr. W. in trust to pay the aforesaid annuities, and the surplus to the sole use of testa- tor's daughter E. C. for life, and after her death to her issue, as tenants in common, in default thereof, over.'] And your orator further showeth that after the making and publishing of such'will as aforesaid, the said testator duly made and published a codicil thereto, bearing date, &c. and thereby directed, &c. [£ per annum to be added to aforesaid annuities, and revoked the appointment of Gf. W. as executor' and trustee.] As in and by the said will and codicil or the probate copy thereof when produced to this honorable court will appear. And your orator further showeth that soon after the making and publishing the said will and codicil, and on or about the said, J. C. departed this life without altering or revoking Death of tes- his said will, save as the same is altered by the said codicil, and tator leaving without altering or revoking the said codicil, leaving the said B. 0. " 'j*" viT '^" his daughter and only child and heiress at law, and your orator and the said S. B. and I. H. his executors and trustees named in his said will and codicil, him surviving ; and upon or soon after the Probate of the death of the said testator, your orator and the said S. B. and will and codi- I. H. duly proved the said will and codicil in the Prerogative Court pu\oJs*wlir'' of the Archbishop of Canterbury, and took upon themselves the possessed burthen of the execution thereof, and possessed themselves of the themselves of 334 BILLS FOR THE APPOINTMENT the personal personal estate and effects of the said testator, and also entered into session°o/the ^^^ "P°° *^® possession of his real and leasehold estates so devised real and lease- to them as aforesaid, and received the rents and profits thereof, and hold estates, duly applied the same and the interest arising from the said personal and applied estate in the payment of the said annuities, and in the maintenance suantto\hr" *^^^ education of his daughter pursuant to the directions of his directions of Said will. And your orator further showeth that the said E. C. did the will. soon afterwards in or about by and with the privity consent and [ *335 J approbation of your orator and the said S. B. and I. H, intermarry Marriage of with T. C. of, &c. whereby the said E. C. and her said husband T. 0. testator's jn ijgj. right became entitled to the residue of the said testator's lease- t!^ a wltlTthe ^"^"^ houses premises and personal estate so devised by his said will consent of the as aforesaid. And your orator further showeth that by an inden- trustees. ture bearing date, &c. and made between your orator and the said S. B. and I. H. of the first part, the said E. C. of the second part, A settlement and the Said T. C. of the third part, being an indenture of settle- made upouher ment made previously to and in consideration of the marriage then niarri g . intended and afterwards had between the said E. C. and T. 0. re- citing, &c. [the property settled in trust for the husband for life, then for the wife for life, and afterwards as therein mentioned.^ As in and by, &c. And your orator further showeth that your orator and the said S. B. and I. H. did upon the marriage of the said T. That an ac- C. and E. C. make up an account with them of all money and eifects countwas sta- whatsoever had received produced paid applied or disposed of by daughter and them Or any of them, by from or out of the said freehold and lease- her husband hold and of all Other the real and personal estates whatsoever of the by the trustees gaid J. C. deceased, which were since the death of the said T. 0. receive"°an? received by them or any of them in pursuance of the trust and exe- the balance cutorship reposed in them by the said J. C. and did pay to him the said paid to the T. C. the balance due to him on such account. And they the said husband. r[i_ q ^^^ ji_ j^j^ mie, did thereupon execute to your orator and the cuted^to^the^" ^^^^ ^- ^- ^^^ ^- ^- * general release bearing date, &c. And your trustees. Orator further showeth that there is now remaining the sum of £ As to the sum £B per cent, consolidated bank annuities in the name of your orator now remain- and the said S. B. the only remaining part of the trust funds men- ^^^' tioned in the said indenture of settlement of, &c. And your orator plaintiff's co- farther showeth that the said S. B. and I. H. have severally departed trustees. this life, and the said T. C. hath since also departed this life, leaving Death of T. C. the Said E. his widow and relict and three children, viz. T. C. C. T. leaving a wi- Yf. C. and C. C. then and now infants under the age of twenty-one dow and three i- ■• i ^.i ,°.. '^ children. J^^^^ '^^ surviving, and your orator is become the surviving trustee and executor of the said will, and the widow and relict of the said T. 0. Marriage of hath sometime since intermarried with E. J. one of the defendants the widow hereinafter named ; and since such intermarriage the said E. J. hath ffendant^E. J. obstructed your orator in the execution of the said trusts of the said who has Ob- testator's will, and hath got into the possession and receipt of the structed rents and profits of part of the said trust estates, and hath received into°refeipt of ^^f ®^™® ^°^ * ^"^"^ *^™® P^^*' ^°*^ insists On having a right to re- the rents, ceive the same, and hath for the enforcing the payment of such rents brought eject- brought ejectments and other actions against some of the tenants of meuts, and jjjg g^id trust estates, and distrained upon the goods of others of OF NEW TRUSTEES. 335 them, and threatens to proceed in such actions and otherwise against made distress- the tenants of the said premises, and the said E. J. hath applied and es,and applied converted the money so received by him to his own use, without any cetyeTuflis' regard to the annuities charged on the said estates by the said testa- own use. tor's will and codicil and other incumbrances made thereon *by the [ *336 ] said E. his wife before her intermarriage with the said E. J., and by means thereof the said annuities and incumbrances are become in arrear, and your orator is obstructed in the execution of the trusts aforesaid, and is threatened with divers suits and actions for the non- Plaintiff performance of the said trusts, and is otherwise put to divers large ^ith^'actfo'lis expenses and costs in and about the premises, and hath been obliged for non-per- to give notice to the said tenants not to pay the rents to any person formance of but himself, and to defend them in the actions so brought. And 'lie trusts, and _ i V ■ .1 1 • • . 1 • 1 • 1 -1. desirous of your orator being the only surviving trustee named in the said will being dis- is desirous of being discharged from the trusts thereof, and of assign- charged. ing over the said trust premises to some other fit and proper person, to be approved of by this honorable court. And your orator hath Applications frequently and in a friendly manner applied by himself and others t° ^- j- *'"'' ^• to the said E. J. and E. his wife and requested them to join with your concuf in'ap- orator in nominating and appointing some other fit and proper person pointing new to be trustee of the said premises, and to permit your orator to assign trustees. to such person the said trust estates and premises. And your orator well hoped that the said E. J. and E. his wife would have complied iv. with such your orator's just and reasonable requests as in justice and equity he ought to have done. But now so it is may it please your lordship that the said E. J. and E. his wife combining and confede- rating with the said T. C. C. T. W. C. and C. C. and with E. R. of, &c. M. W. and R. W. of, &£. and with other persons refuse to Refusals by comply therewith, and they insist that your orator shall not be dis- ."^<^"> msist- charged from the said trusts before he hath passed the accounts ^^§ onght'^not thereof, under a pretence that there is a large sum of money due to to be dis- them from your orator on account thereof, the contrary whereof your charged be- orator charges to be the truth, and that your orator is and always p°assed hU^ac- hath been ready and willing and hereby submits to account for the counts, and trust money received by him and the application thereof, in such that there is a manner as this honorable court shall direct. And the said defend- f'^^ ^ f"*^* Ti T. •««■ TT7- 1 T» -nr 11 -1 due from him. ants E. R. M. W. and R. W. severally pretend and set up some right charge the claim or interest in to or out of the said trust estates and premises contrary, and or some part thereof, but they refuse to set forth or discover what that he is wil- estate right title or interest they or any of them have or claim to have "^ '" '^*^' ° „ , . , ■' ■'i . 1 , 1 count. in to or out of the said trust estates and premises and how they seve- dnimg get up rally derive and make out the same, and they refuse to permit or by the other consent to your orator's being discharged from the trusts of the said defendants testator's will and codicil. All which actings, &c. [see form VI. p. 5, ^^''plaintiffs' interrogating to the stating and charging parts.'] discharge. And that an account may be decreed to be taken of the rents Prayer. and profits of the said trust estates received by the said defendant E. J. or any other person or persons by his order or for his use ; and that what shall be found due from him on the balance of such account may be paid by him to your orator to be appPied and disposed of upon the trusts and for the purposes in the said testator's will 336 BILLS FOR THE APPOINTMENT and codicil declared and expressed concerning the same ; And that your orator may be discharged from the trusts of the said testator's will and codicil upon passing his accounts, and which your orator is ready and willing and hereby submits to do in such manner as this honorable court shall please to direct ; And that it may be referred [ *337 ] *to one of the masters of this honorable court to approve of three or more fit persons to be trustees of the said trust estates funds and pre- mises in the place and stead of your orator, and that your oi-ator may be at liberty to assign transfer and convey the said trust estates and premises unto such new trustees when approved of by this honor- able court ; And that your orator may be indemnified in so doing by 1 the order and directions of this court, and may retain or be allowed out of the trust moneys now in his hands or which shall hereafter come to his hands all and every his reasonable costs and charges in and about the premises aforesaid, or that he may be paid the same by the said defendant E. J. : And that in the mean time some proper person may be appointed by this honorable court to be receiver of the rents and profits of the said trust estates, and that the necessary directions may be given in that behalf; And that the said E. J. may be restrained by the order and injunction of this honorable court from all further and other proceedings at law against the tenants of the said trust estates or any of them, and from any further receipt of the rents and profits thereof, or otherwise intermeddling with the said trust estates moneys and premises. [And for further relief, see form VIII. p. 5.] May it please, &c. [see forms No. 1 and 4, p. 6.] T. N. CXXIII. Introductory statements and eJiarging part of a bill filed against the executors of a deceased trustee and the surviving trus- tees under a marriage settlement, for converting to their own use moneys produced hy the sale of certain trust estates under an act of parliament. Prayer that the defendants may he declared responsible for the amount misapplied, and the same, when paid in, may be invested on gov- ernment securities : that the surviving trustees may be discharged from the trusts, and new trustees appointed ; that the estates re- mainingi unsold may be sold, and the produce applied according to the trust of the act of parliament ; and if necessary that the usual accounts may be taken of the personal estate of the deceased trustee. That no sum And your orators further show that they have lately discovered as of stock, IS |;}ig truth is that neither the said sum of 1. 3 per cent, consoli- . at° the°daTe^of fiited bank annuities nor any part thereof is now standing in the plaintiff's names of the said W. W. F. W. W. W. and W. C. or of any or marriage set- either of them, and Ihat in fact the said stock or any part thereof standing in ^^® °'** Standing in the names of the said trustees or of any or the trustees' either of them, at the time of the date of your orator's said marriage OF NEW TRUSTEES. 337 settlement, but that the whole of the moneys arising from the sales names, but of the said estates have been applied by the said trustees to their *^** *'l^ P'^°" own use; and that the said sum of 1, bank annuities which is gaies had been stated to have been purchased with the said sum of 1, was very applied by soon after or about the time of passing of the said act of parlia- tbem to their ment transferred or sold out by the said trustees, who have applied "'^^ ^^^' the produce thereof to their own use ; and your orators being the *only persons interested in the said estates funds and premises after [ *338 ] the death of the said I. P. have caused application to be made to Applications the said W. C. F. W. and W. W. and to the said B. H. and J. L. made to the as the executors of the said W. W. deceased for an account of the defendants. produce of the said trust estates and funds, in order that the same may be properly secured, and your orators well hoped that such application would have been complied with, as in justice and equity it ought to have been. But now so it is, &c. [see form VI. p. 5,] they refuse to give your orators any account of their transactions re- Refusals by lating to the said trust moneys and premises, and they refuse to dis- ttem to give cover and set forth when and by whom the said sum of £ here- ^"[jj regard to inbefore mentioned was first paid to the said trustees or any or either the trust of them, and when and by whom the same or any part thereof was funiis, laid out in the purchase of the said sum of £ bank annuities, and when and by what means and for what purpose the same were transferred into the names of the said trustees, and what has since become of the said sum of £ bank annuities, and when and by whom and to whom and for what sum of money or other considera- tion the same was transferred out of the names of the said trustees ; and the said defendants also refuse to discover and set forth a full or the estates true and particular account of all the said estates and premises whieh have comprised in the said act of parliament which have been sold since the'crodu'ce'^ the passing of the said act, and by whom and to whom and in what thereof, or names and for what prices and sums of money the same respectively how invested, have been sold, and to whom all such sums of money were paid, and what persons gave or joined in giving receipts for the same, and how and in what manner all such sums of money have been ap- plied, and who are or is now accountable for the same ; and whether the purchase-moneys or any part or parts thereof have or hath and when been laid out on any and what government securities or other securities, and by whom and in whose names or name, and what hath since become of such securities ; and the said defendants or the estates also refuse to state whether any and which of the said estates and remaining un- premises still remain unsold. And the said defendants sometimes ° pretend that the said defendant W. C. alone hath acted in the said defendant w. trust and is accountable for the said trust moneys, and that he hath G'. has alone received the said sum of £ , and also all the moneys arising acted, and is from the sales of the said estates and premises and hath applied the goun'taWe for same to his own use; and that the said W. W. deceased, F. W. the produce of and W. W. respectively never received any of the moneys or joined tie sales. in giving any receipts or acknowledgments for the said moneys or any part thereof. Whereas your orators charge the contrary of such Charge the pretences to be the truth, and that the said W. C. hath been en- contrary, and abled or permitted by the said W. W. deceased F. W. and W. W. gtanoer^n- 338 BILLS FOR THE APPOINTMENT derngthesur- to receive all the said moneys and to convert the same to his own tels°fnd tbe '^®®' ^""^ *^** ^® ^^^^ Wasted the same, and that they all became executors of responsible for the same. And particularly your orators charge the deceased that before or about the time of passing the said act of parliament trustees liable, the said sum of £ 3 per cent, consolidated bank annuities stood in the joint names of all the said trustees, and was afterwards trans- ferred out of their names into some other name or names ; and that [ *339 ] *the said defendants W. 0. F. W. and W, W. and the executors of the said W. W. deceased ought to be compelled either to answer and pay all the said trust moneys originally received by them or any of them as aforesaid, or to account for the produce of the trust funds in which the same were at any time invested, or to replace such trust moneys, as shall appear to be most for the advantage of the parties interested in such trust premises, and that such parts of the said trust estates and premises comprised in the said act of parliament as shall appear to remain unsold ought to be sold under the directions of this court, and new trustees ought to be appointed under the afore- said settlement and act of parliament in the room of such of the said trustees as shall appear to have committed breaches of their said trusts ; but the said I. P. and R. C. respectively refuse to concur with your orators in this suit. All which actings, &c. [_see form Yl. p. 5, and interrogate to the stating and charging parts.^ And that the said defendants "W. C. F. W. and W. W. respectively, and the said defendants B. H. and I. L. as the executors of the said W. W. deceased or such of them as this honorable court shall think fit may be declared to be responsible for all the said trust moneys, or for the value or produce of such securities as the same have been in- vested in or have been alleged to be invested in, as shall appear most for the benefit of the persons interested in the said trust funds ; and may be decreed to answer and pay such moneys accordingly ; and that the same when paid in may be laid out and secured in govern- ment funds or securities for the benefit of the persons interested therein under the direction of this honorable court ; and that the said defendants W. C. F. W. and W. W. respectively may be dis- charged from the trusts of the said indenture and act of parliament, and that new trustees if necessary may be appointed in their stead under the direction of this court ; and that all such of the said trust estates as remain unsold may be sold under the directions of this court, and that the moneys arising from such sales may be secured and ap- plied according to the trusts of the said act of parliament ; and in case the said B. H. and I. L. shall not admit assets of the said W. W.'s estate to answer what the same shall be responsible for in this suit, then that all necessary accounts may be taken of the said W. W.'s personal estate possessed by them respectively and of the ap- plication thereof. [^And for further relief. ^ R. S. Charge that the estates re^ maining un- sold ought to be sold, and new trus- tees appoint- ed. Prayer. OP NEW TRUSTEES. *340 *CXXrV. Prayer of a hill filed against trustees under a settlement for selling part of the trust fund and converting it to their own use ; Praying that they may he removed and he decreed to replace so much stock as they have sold out ; also for an injunction against them and the Bank of Ungland{S) to restrain the transfer of the remainder of the stock standing in the trustees' names, and that new trustees may be appointed,{4:) and the dividends of the trust funds paid to the tenant for life. And that the said defendants R. S. and W. L. may be removed from being trustees under the said indenture of settlement, and that they may be decreed by this honorable court to replace all such parts of the said trust stock as have at any time been sold out or trans- ferred by them, and that they may be restrained by the injunction of this honorable court from selling or transferring any part of the said residue of the said £ 3 per cent, consolidated bank annui- ties now standing in their names ; and that the said defendants the governor and company of the Bank of England may in like manner be restrained from permitting the said £ 3 percent, consolidated bank annuities, the residue of the said £ like annuities, to be transferred without the order and direction of this honorable court ; and that new trustees may be appointed by and under the direction of this honorable court in the room of the said defendants R. S. and W. L., and that they may be directed to transfer the said sum of £ 3 per cent, consolidated bank annuities to such new trustees as this honorable court shall direct, and that the dividends thereof may be paid to the said I. P. or his assigns during his life, and after his death according to the trusts of the said settlement. l_Andfor further relief, see form VIII. p. 5.] W. 0. Pray suhpoena and injunction against R. S. W. L. and the governor and company of the Bank of England, and supcena against I. P (3) See note (1), antea, p. 291. (4) For other forme of prayers for the appointment of new trustees, vide antea, p. 255, 260. "341 BILLS BY UNDERWRITBKS. *23. BILLS BY UNDERWRITERS IN RESPECT OF FRAUDS PRACTISED UPON THEM IN THE INSURANCE OF SHIPS.(l) CXXV. Bill by underwriters for a fraud practised upon them in the representation of the voyage, the plaintiffs waiving any answer to any matters which might prove or discover that the defendants carried on trade with the revolted colonies.{2) Prayer for an in- junction to restrain the defendants from proceeding at law, and for a commission to examine witnesses abroad. States that W. W. of, &c. alone or jointly with some other persons, was or were or pretended to be before and at the time of making the insurance after-mentioned owner or owners of a certain merchant ship or vessel called , and they or one of them particularly the said W. W., or I. B. and T. G. of the city of insurance brokers and copartners, as agents for and on the behalf of the owners or owner of the said ship, on or about caused a policy of insurance to be opened at the city of on the said ship and her cargo, against the danger of the sea and capture of any foreign enemy on a voyage to be performed by the said ship from the port of to , and which voyage it was upon such occasion pretended that the said ship was immediately to make, and that such insurance was accordingly effected at the city of on or about, &c. and amongst other persons who underwrote or subscribed the said t^qWcj plaintiff s respectively underwrote the same for the sum of £ each at or after the premium of guineas per cent, to return 5 per cent, for having departed with the West India convoy if arived, i. e. plaintiff [ *342 ] 1. R. the sum of £ *upon the said ship which was valued in the said policy at £ , and the rest of plaintiffs the like sum of £ each upon the cargo on board the said ship. As in and by, &c. (1) Insurances /ro«c?!itorty obtained may be set aside; as where a merchant having a doubtful account of his ship insured her without acquainting the insurers of what he had heard with regard to the danger the ship was in, it was held to be a fraud, and the policy was ordered to be delivered up with costs, but the premium to be paid back, and allowed out of the costs; De Costa v. Scandret, 2 P. Wms. 169. 1 Madd. Ch. Pr. 299. Park on Insurance, 7th edit. 595. But at law in cases of fraud Van assured cannot recover the premium; secus, if the policy be avoided ou account of a misrepresentation made without any fraud; Paris; on Insurance 7th edit. 329, 574, 5. And see Wilson v. Ducket, 3 Burr. 1361, where the insurer had offered by Inis bill to pay back the premium. Where a ship is insured at and from a place, and it arrives at that place, so long as the ship is preparing for the voyage upon which it is insured, the insurer is liable • but if all thoughts of the voyage be laid aside, and the ship lie there five, six or seven years with the owner's privity, the insurer is not liable ; Chitly v. Selwin, 2 Atk. 358 on motion for a commission and for an injunction in the mean time. Park on In- surance, 63, 594. Where a policy of insurance on a life was fraudulently obtained, the policy was decreed to be delivered up with costs, and the premium received on the policy di- rected to go in part of costs; Whittingham v. Thornbury, 2 Vern. 206- S C Pre in Ch. 20. , . . . (2) See the judgment of Sir John Leach, V. C. in the case of Dr. Thorpe v. Ma- cauley, 5 Madd. 228, and the cases referred to in note («), p. 231. BILLS BY UNDERWRITERS. 342 That notwithstanding the representation made to plaintiffs at the Therealdesti- time of making the aforesaid insurance, with regard to the port of '^^}'-°^ of the the said ship's destination, the voyage really intended to he made by scrfbed'fn fhe her was not from the port of as mentioned and expressed in the policy. said policy, but from the port of to or some other port in — or to some other different port or place than . And plain- tiffs -hawmg been deceived and imposed upon by such untrue repre- sentations of the said ship's intended voyage, the said insurance was fraudulent, and therefore the said policy was null and void. That the said ship afterwards sailed from the port of with Ship sailed some other ships which were to proceed under convoy for , but "°"i" convoy the said ship soon after quitted the said fleet and convoy and ^Irds^devia- deviated from her regular course or track of such a voyage and pro- ted from the ceeded to some other port or place not specified or mentioned in the regulated said policy of insurance, particularly to the port of or some course and ii, i 1 ■ 1 1 • 1 1 • IT ^^s subse- otfter port or place in where the said ship and her cargo were qaently sold sold for a large sum of money in the whole, and which was afterwards by the owners received by the said W. W. and the other joint owners of the ship or some or one of them. That plaintiffs well hoped under the circumstances aforesaid they should not have been called upon for payment of any sums of money whatsoever on account of their having subscribed or underwrote the aforesaid policy of insurance. But defendants pretend that the insurance was not made fraudu- Pretence that lently or unfairly, and that plaintiffs were not in any manner im- '^® insurance J ii • T ii i ,1 , n • . T 1 . 1 1 was not made posed upon therein, and that the voyage actually intended to be made fraudulentlv by the said ship was the voyage particularly mentioned and and that the specified in the said policy, viz. from the port of to and '•'°J^S^ ws that she never made any deviation therefrom. And they also some- and^the ship^' times pretend that the said ship was lost or foundered at sea in the afterwards regular course or track of the said voyage. And at other times they '"^t at sea or give out that the said ship was in the course of her voyage captured ""'^ "^^ ' by the enemy and afterwards condemned as lawful prize, and that for some or one of such reasons plaintiffs and the sevei'al other under- writers on said policy became liable to pay the severjils sums insured or underwrote by them respectively on the aforesaid policy. Charge the contrary, and that plaintiffs were deceived and imposed Charge the upon in manner aforesaid respecting the place or port of the said 't^^^J^'^7'! f-^ ship's destination, for that the said ship was at the time and upon ^e^e imposed the occasions aforesaid destined or intended for a voyage to or upon. some other port in or some other port or place in . And plaintiffs charge that the said ship in the course of the said pre- That the ship tended voyage separated from the rest of the ships or fleet, and deviated from made a deviation and proceeded or sailed for the port of or ^'' ''°"''^^- some other port or place in , or to some other port or place different from the port or destination mentioned in the said policy, where the captain or some other persons or person on board sold That the cap- and disposed of the said ship and cargo as hereinbefore is men- ^^^J^^^^^^.^ tioned, *and that divers remittances were afterwards made to L ^^d J on account of such sales or the produce thereof to the said confede- ?'"P ^"'^ff'^f ° rates the owners or some or one of them, such fraudulent insurance 'Jf a"sch°""° in pursuance emc' 843 BILLS BY TTNDBKWEITERS. concerted be- as aforesaid having been previously made thereon pursuant to and tween the de- in consequence of some plan or scheme concerted or contrived between fendants. ^-^^ ^^j^ Confederates or some or one of them and the said the captain, or to which they some or one of them were or was privy, and that it was never meant intended or understood by and between the said confederates or any of them that said ship should perform the voyage specified or mentioned in the aforesaid policy of insur- That the ship ance Or proceed to . And plaintiffs moreover charge that the was not lost said ship was not lost captured or taken by the enemy, or however or captured. ^^^ -^^ ^^^ regular course or track of a voyage from to as No protest mentioned in the said policy of insurance. And as evidence thereof ever made as plaintiffs charge that the said captain or any other person never ca"es^.™ ^""^ ^^^^ ^"^y protest of the loss or capture of the said ship as is usual or customary in such cases, and which would have been made if the said ship had actually been lost or captured, nor was the said ship ever condemned or any sentence of condemnation passed upon her Charge as to a as a lawful prize. And as a further evidence of the aforesaid decep- letter sent by tion and imposition plaintiffs charge that the said confederates [the their agen^Vi^ insurance brokers] or some persons by their orders or directions or rectihghimto with their privity or consent some time in or about the month of apply to plain- wrote and sent a letter to their agent or correspondent at , tiffs to cancel employed by them to effect the aforesaid insurance directing him to upon repay- apply to plaintiffs or some other of the underwriters on the said ment of the policy and to offer to cancel the said policy upon the repayment of premium. ^]^q premiums; and such a proposition and offer was also made by the direction or with the knowledge of the said confederates [the owners,'] and in consequence of their knowledge conviction and belief that the said insurance was fraudulently and unfairly made on the part of the said confederates [the owners,] and that the underwriters on the said policy were deceived or imposed upon respecting the port of her destination, and that the said ship was not actually lost or captured, and that for such or some other reasons the said policy was null and void, and that the said confederates [the owners] have no just claim or demand upon the underwriters in respect of the sums insured or Charge as to underwrote thereon. And plaintiffs also charge that divers letters letters, &c. q^ notes have been written by and sent to or received by or passed the truth of between the said confederates or some or one of them and their cor- the matters respondents or agents at , or the persons or person employed by charged them the said confederates or some or one of them in or about the won appear, ^jj^jjjjjg ^f j-j^g aforesaid insurance and the said the captain of the said ship or some or one of them relating to or in some manner concerning the several matters and things hereinbefore mentioned and inquired after, particularly the making of the aforesaid insur- ance and the fraud or deception practised or intended to be practised upon plaintiffs and the underwriters of said policy, and which said letters or notes or some copies abstracts or extracts thereof or of some or one of them, together with divers other papers memorandums [ *344 ] or other writings relating to the matters aforesaid, *are now or lately were in the custody possession or power of them the said confede- rates or some or one of them. And plaintiffs also charge that the truth of the several matters and things hereinbefore charged and set BILLS BY UNDERWRITERS. 844 forth, and particularly that plaintiffs were deceived or imposed upon in the making of the aforesaid insurance and that the said ship was not lost or captured, and that the said confederates [the owners] of the said ship have no just or fair demandi upon plaintiffs by virtue ot or under the aforesaid policy as would appear in and by the said let- ters and papers in case the said confederates would produce the same, but which they refuse to do although they have been frequently ap- but that the plied unto for that purpose; and under such or the like pretences 3efendants re- as aforesaid or some others equally uniust or unreasonable the said ^"f„^„!?i*l°" conterlerates insist on the contrary ; And the said confederate W. T^la,t defend- W. hath also lately commenced separate actions at law against plain- ant w. w. has tiffs in his Majesty's court of King's Bench at W. to recover the commenced sums respectively underwrote by them on the said policy, and he ^^l^f"! , . J.T, , , 1 1 • 1 1 • 1 "^ Ni 1 against plain- tnreatens to proceed to judgment and execution thereon, well know- tiffs on the ing th&i plaintiffs are not able to make a good defence at law in the policy. said actions without a full disclosure and discovery of the several matters aforesaid, and without the benefit of the testimony of their witnesses who reside at and and other parts of , and also in other parts and places abroad, and who could prove the truth of the several matters and things hereinbefore charged and inquired after. And the said confederates refuse to discover to plaintiffs the That defend- names or places of abode of the other persons whom they sometimes ^?'^ ™^"s^ *" allege to be joint owners with them of the said ship. All which namero/the actings, &c. [Proceed as in form VI. p. 5, as far as the words "mat- other owners. ters aforesaid" and then proceed thus ;] and that as fully and par- ticularly as if the same were here repeated and they thereunto dis- tinctly interrogated. To the end thereof, &c. (save and except that plaintiffs do not require, but hereby waive any answer from the said Plaintiffs defendants to any of the facts and charges hereinbefore contained, waive any an- which might prove or discover that they carried on any trade or gj^a^ggg t"^^. commerce with the revolted colonies in or had any unlawful ing to prove intercourse or communion with any person residing therein,) and ttat defend- more particularly that the said defendants may in manner aforesaid f°''j*^*"th th° answer and set forth whether, &c. [interrogating to the stating and revolted coio- charging parts.] nies. And that plaintiffs may have a full disclosure and discovery of Prayer, the several matters and things aforesaid. And that the said defen- dant W. W. may be restrained by the injunction of this honorable court from proceeding in the said actions already commenced by him, and that he and all the said other defendarts may in like manner be restrained for commencing or prosecuting any other actions or action or in any other manner proceeding at law against plaintiffs or any of them touching the several matters and things aforesaid. And that plaintiffs may have one or more commission or commis- sions issuing out of and under the seal of this honorable court for the examination of their witnesses at and and other parts of or any other parts or places abroad as there may be *occa- [ *345 ]. sion. [And for further relief, see form VIII. p. 6.] May it please, &c. [see forms JVo. 1 and i, p. 6.] J. Li. 345 BILLS BY UNDERWRITERS. CXXVI. Part of a hill {comprising the stating and charging parts,) filed hy underwriters against a merchant resident abroad, and his agents in England, for frauds practised by them in the insurance of two ships. — The merchant being in the habit of buying old worn out ships, fitting them out, and insuring them at high prices. — Defendants claiming as for a total loss as to one ship, and for the amount insured upon the other ship in respect of repairs done to her. Humbly complaining show unto your lordship your orators, &c. Three of the all of, &c. merchants and underwriters. That E. B. D. M. and I. T. defendants as of the city of merchants, trading under the style and firm of fnteresteVin^a ^- ^- ^"*^ ^°- ^'^''^^ of the defendants hereinafter named, in or about ship called N. the month of were or pretended to be interested as the agents of I. E. then residing at the other defendant hereto in a certain ship or vessel called N. of which one R. C. was the master, which ship was then alleged to be at . And your orators further show unto your lordship that in the said month of the said defend- ants B. B. D. N. and I. T. under the name and style of E. B. and Policy of in- Co. caused a policy of insurance to be opened in the said city of surance open in the usual form as well in their own names as for and in the ed and effected jjame or names of all and every other person and persons to whom the same did might or should appertain in part or in all for assuring the said ship called N. at the premium of 10 guineas per cent, lost or not lost, at and from to , and at and from thence to with liberty to touch and trade barter and exchange the pro- perty at the aforesaid places, or at any ports in the island of and to touch at any ports of in her return, and from thence to . And it was declared that the said ship for so much as con- cerned the assured and assurers was valued at £ . And your orators further show unto your lordship that your orators [^stating their names'] by themselves and their agents severally underwrote the said policy for the respective sums of £ each, and that your orator T. T. by I. R. his agent in that behalf underwrote the same Three of the for the sum of £ . And your orators further show unto your defendants as lordship that the said E. B. D. N. and I. T. in or about the month agents of I. E. gf were or pretended to be also interested as the agents of the ship called S. ^^^^ -'-• ^- ^"^ ^ certain other ship or vessel called S. of which one W. was then master, and which ship was also alleged to be at aforesaid. And your orators further show that in the said month of Policy of in- the said E. B. D. N. and' I. T. caused another policy of insur- snrancejjpen- ance to be Opened in the said city of in the usual form for as- suring the ship or vessel called S. at a premium of 12 guineas per cent, lost or not lost, at and from to , and at and from thence to or any port or porss in the island of , with [ *346 1 liberty to trade *there, and on her return to touch at any port or ports of ard at and from thence to as aforesaid for orders. And it was declared that the said ship by agreement should be valued at £ . And your orators further show that your orators [stating ed and effected on same. BILLS BY TJNDBEWEITBES. 346 their names] by themselves or their agents severally underwrote the said policy for the respective sums of £ each, and that your ora- tor T. T. by I. R. his agent underwrote the same for the sum of £ • As in and by the said policies when produced to this hon- orable court will more fully appear. And your orators further show Defendants unto your lordship that the said defendants allege that the said ship allege that the called N. sailed from aforesaid on or about on her said ^*''P ^- ^'^^^^'^ voyage in the said policy of insurance mentioned, and that the said and^bas'n'ever ship hath never been heard of since she sailed upon the said voyage, been hea<;d of and that the said ship or vessel whilst sailing and proceeding on her ^'°^'^> '^"'^ said voyage in the said first mentioned policy of insurance mentioned, L^,!!";^!',™,!'' and beiore the completion thereot must have been lost by and through the mere perils and dangers of the seas and by strong and tempes- tuous weather ; and the said defendants E. B. D. N. and I. T. have as the agents of the said I. B. upon pretence of such allegation lately demanded from your orators respectively the sums severally under- written by them on the aforesaid policy. And your orators further Defendants show unto your lordship that the said defendants also allege that allege that the the said ship called S. sailed from in the month of upon ^^-'P ^- sailed her said voyage in the said policy of assurance thereon mentioned, ai,^ tbrough ' and that the said ship touched at some place on the coast of stress of wea- and went from thence to , and on the day of sailed *'"^'' P'^* '"'^ from on her return to , and afterwards and whilst the der^e^nt re-"' said ship was proceeding on her said voyage she was by and through pairs to the the mere perils and dangers of the seas and by stormy and tem- amount of the pestuous weather so greatly damaged and injured, that on or about an" de'fend- ' the day of the same month of she was compelled for the ants claim the preservation of the said ship to put into some port in , and sums insured. there to undergo very heavy and expensive repairs to the amount of the sums insured as aforesaid upon the said ship ; and the paid defendants E. B. D. N. and I. T. have as such agents as aforesaid lately demanded from your orators respectively the sums severally underwritten by them on the said last-mentioned policy. And Plaintiffs have your orators further show unto your lordship that upon inquiring discovered into the several matters aforesaid your orators have discovered that Jerotant and the said defendant I. B. was a merchant or trader residing at , purchases' and for many years had been and was a domiciled subject of the <="f>zy vessels, government there, and that the said I. E. acting as the — ^ — om for'vo™ consul there availed himself of his situation to purchase at a low ages, and "in- price many old worn-out and crazy vessels, and fitted out or pre- suringthemat tended to fit the same out for diiferent voyages, and well knowing that '"s'^ prices. the said ships were not sea-worthy caused the same and the cargoes thereof to be insured in the city of at high prices. And in That ships N. particular your orators show that the said ships N. and S. were old and S. were vessels and worn out and were by no means in a fit state or condition ^°''" °"'' to proceed on the said voyages insured ; and so it would appear if the said defendants would set forth when and where the said ships were built, and when and from whom and at what prices the said *ships were brought by the said I. E. and what repairs had been [ *347 ] done to the said ships respectively after he purchased them, and what moneys had been expended, and what was the particular state of 27 347 BILLS BY UNDERWBITERS. That ship N. did not sail on the voyage in- sured. That the mas- ter had in- structions to pursue a dif- ferent voyage. That defend- ant I. E. knows where the master and seamen are, and re- fuses to dis- cover their names. That the re- pairs to the ship S. were necessary by reason that she was not seaworthy. That she devi- ated from the voyage insur- ed. That I. E. was an alien born, and was and is an enemy. [ *348 ] the repairs of the said ships at the time they are alleged to have sailed on their said voyages, and by whom the state of their repairs had been surveyed before they sailed upon their said voyages, and what reports were thereupon made by the person or persons who so sur- veyed them. And your orators further show that if the said ship N. did in fact sail from , yet she did not sail on the said voyage insured ; and so it would appear from the entries made at the Cus- tom house or other proper office at on her clearance out from the said port, if the said defendants would set forth the same, or otherwise such entries were false and colorable and meant to dis- guise and conceal the true destination of the said ship. And your orators further show that the master of the said ship had instructions to pursue another and a different voyage, and did in fact deviate from the voyage insured ; and so it would appear if the said defend- ant I. E. would set forth all and every the instructions given to the master or captain of the said ship on her sailing from , and all and every the letters and letter written to or received by the said I. E. with respect to the sailing and destination of the said ship. And your orators further show that although it is alleged that the said ship N. has never been heard of since she sailed on her said voyage, yet the said defendant I. B. well knows where the master and seamen who were on board the said ship when she is alleged to have sailed on her said voyage now are, or have been since the alleged time of her sailing ; but the said defendant refuses to set forth the names of such master and seamen or to make any discovery with respect to them, in order that your orators may not have the means of proving the several matters aforesaid. And your orators further show that if in fact the said ship S. did undergo such repairs as are alleged by the said defendants, such repairs or the greater part of them were made necessary not by any stress of weather which the said ship had met with on her said voyage, but by reason that she was not sea-worthy at the time she sailed from as aforesaid. And your orators further show that it was not,, the intention of the said I. E. when the said ship. S. sailed from aforesaid that she should adhere to the voyage insured, and the said ship did in fact before she put into as. aforesaid in many respects deviate from the said voyage ; and so it would appear if the said defendant would set forth the instructions which were given to the master or captain of the said ship, and the particular trade in which the said ship was meant to be employed upon the said voyage. And your orators further show unto your lordship that the said I. E. was an alien born, and was at the time of the assurance of the said ships, and hath ever since continued to be and now is a domiciled subject of the persons exercising the powers of government at , and that at the time of the loss of the said ship N. if the same were lost as is alleged and at the time the said ship S. put into as aforesaid, the persons exercising the powers of government at were and now are enemies of our King, and the said defendant I. E. is an enemy of our King, and adhering to the king's enemies. And your orators * further show that after the said ship S. had been repaired at the said she sailed from thence and was soon afterwards BILLS BY UNDBRWKITEES. 348 captured by a British vessel ; and the said ship and cargo have since That ship s. been condemned by a Court of Admiralty of this country as Dutch '^"s captured property ; and although the said defendant I. E. not only made such ed'ls DutcT' assurances as aforesaid on the said ship, but also insured the sum of property, nnd £'-^ on the cargo of the said ship, yet the said I. E. hath sub- tl^^t \- E- lias mitted to such sentence, and hath in no manner appealed there- guo"senten°,, from. And your orators further show that the said defendants well know where the masters and seamen of the said ships are now or lately were to be found or heard of, and ought to set forth a list of the names of such masters and seamen, and where they are respec- tively to be found. And your orators further show unto your lord- Applications ship that they have by themselves and their agents repeatedly ap- to defendams plied to the said defendants, and have requested them to deliver up ^'^"^ refusals. to your orators the said policies of assurance to be cancelled. And your orators well hoped that they would have complied with such your orator's reasonable requ-ests as in justice and equity they ought to have done. But now so it is, &c. [see form IV. p. 5.] And That defer.d- the said defendants E. B. D. N. and I. T. as the agents of the said ants B. B. D. other defendant I. E. have lately commenced actions at law in his have°com^ Majesty's Court of King's Bench against your orators respectively, menced ac- in order to recover from them the sums respectively underwritten by tions against them as aforesaid^ and the said defendants threaten and intend to P'^i'it'^s. proceed to judgment and execution against your orators respectively in the said actions, unless they are restrained therefrom by the order and injunction^of this honorable court. And your orators charge charge as to that the said defendants have respectively written to each other divers letters, &c. letters conceriyng or in some manner or in some passages thereof re- lating to the insurance of the said ships and cargoes, or to the intend- ed voyages, or to their state and condition previously to the alleged commencement of the said voyages, or to the alleged loss of the said ship N., or to the alleged damage sustained by the said ship S., or in some manner or in some passages relating to the several matters aforesaid, or some of them ; and the said defendants E. B. D. N. and I. T. have now or have had in their custody or power all and every the letters aforesaid or copies thereof, and also divers protests invoices bills of lading surveys books instruments or writings in some manner and in some parts concerning or relating to the matters aforesaid or some of them. And your orators charge that it would appear upon the production of the said letters protests invoices bills of lading surveys books papers instruments and writings that the said policies of assurance ought to be delivered up to your orators respectively to be cancelled, and that the said defendants E. B. D. N. and I. T. ought not to maintain the aforesaid actions against them, but the said defendants refuse to produce the same. And your orators Charge that i. charge that the said I. E. is now resident at or elsewhere out E- is resident abroad. of the jurisdiction of this honorable court. And your orators charge that they are unable to make a full defence to the demands of the plaintiffs* re- said defendants in respect of the said policies of assurance without quire the tes- the testimony of divers persons resident at and elsewhere out timony of per- of the jurisdiction of this honorable court. All which actings, &c. abroa'd^'^^"* *349 BILLS BY UNDERWRITERS. **CXXVII. Prayer of a hill filed hy underwriters to compel the pro- duction of books, accounts, ^c. and for a commission to examine witnesses abroad; and in case the ship was not seaworthy or was wilfully lost, that plaintiffs' names may be struck out of the po- licy. — Or if tliey should be liable to the defendants, then that plain- tiffs may have credit for the property saved, and for an account thereof : — also for an injunction to restrain the defendants from prosecuting any actions against the plantiffs. And that the said confederates may be decreed to produce and leave in the hands of their clerk in court for the usual purposes all books accounts letters papers instruments documents and writings in their or any of their custody or power relating to or concerning the matters aforesaid ; and that one or more commission or commissions may issue under the seal of this honorable court to examine your orators' witnesses in the said Island of Jamaica and elsewhere be- yond the seas as there shall be occasion ; and if it shall appear that the said ship A. was not sea-worthy at the time of her arrival off the coast of Africa, or that the said vessel was wilfully lost in collusion with the said W. C. A. C. and T. K. or any of Hhem, then that the names of your orators as underwriters of the said policy of insurance may be struck out of the said policy of insurance. But in case it should appear that your orators are liable to any demands on the said policy of insurance, then that your orators may have credit for the cargo sails tackle and apparel of or belonging to the said ship A. saved out of her and put on board the said ship H. as aforesaid, and that the said confederates W. C. A. C. T. K. Gr. K. and M. M. may severally be decreed to account with your orators accordingly, and that your orators may be paid or allowed the amount or value of the said cargo sails rigging tackle and apparel so saved as aforesaid. And that the said confederates W. C. A. C. and T. K. may severally and respectively be restrained by the order or injunction of this honorable court from commencing or prosecuting any action or actions at law against your orators or any of them touching the matters aforesaid or any of them, and particularly from proceeding in the said actions already commenced by them against your orators as aforesaid. [^And for further relief. 2 BILLS TO KKSTRAIN WASTE. *350 *24. BILLS TO RESTRAIN WASTE. (1)* CXXVIII. Bill hy a landlord against Ms lessee for years,{2) who had ploughed up lands contrai-y to the terms of his lease, and had suffered the farm to continue out of repair. The bill prays that he may he compelled to re-instate the premises, and to keep them in good repair and condition, and to make satisfaction for the waste done {plaintiff waiving all penalties incurred thereby ;)(3) also for an , injunction to restrain the defendant from ploughing up other lands and from committing waste. {4:) To &c. Humbly complaining showeth unto your lordship your orator A. B. of , That your orator being seised in fee-simple of or (1) As to the instances where the title is legal and the courts of law admit the existence of an injury, but do not afford a remedy, see 2 Freem. 54 ; 3 Atk. 95, 752, 3 et seq. ; 4 Bro. Ch. Ca. 559 ; Ld. Red. Tr. PI. p. ' 140, 4th edit. ; and see Hony v. Bony, 1 Sim. & Stu. 568, 578 ; and as to those where the title is equitable, see 19 Ves. 150, 5; and as to those where the injury is not acknowledged at law, which are cases of equitable waste, see 16 Ves. 174, 182, 375 a, where the previous cases are referred to ; Coffin V. Coffin, Jac. R. 70 ; equitable waste is a breach of trust, and the assets of a deceased tenant for life are answerable for such breach of trust. Marquess of Ormonde v. Kynersley, 5 Madd. 369. On the general subject of waste, see Ld. Red. Tr. PI. 114, and 136, 7; Madd. Ch. Pr. vol i. p. 138, 140; vol. ii. p. 218. [The re- ferences in the preceding notes are to the second edition of Ld. Red. Tr. ; a fourth edition having been published since the preceding part was printed, reference is made to that in the subsequent notes.] (2) The principle applies equally to the case of a tenancy from year to year as to a lease for a longer term; Onslow v. , 16 Ves. 173 ; Lathropp v. Marsh, 5 Ves. 259 ; Pratt V. Brett, 2 Madd. Rep. 62. So also to an under-lessee, Farrant v. Lovel, 3 Atk. 722; S. 0. Amb. 105. (3) The forfeiture by waste and all penalties ought to be waived in a bill for re- straining waste, (3 Atk. 457,) courts of equity declining to compel a discovery which may subject a defendant to any penalty or forfeiture, and confining the relief given to compensation for the damage done, and restraining future injury ; Ld. Red. Tr. PI. 139, 4th edit. (4) A mere threat to commit waste is sufficient to ground an injunction upon, Gibson v. Smith, 2 Atk. 183 ; Jac. Rep. 71 ; but the mere apprehension of waste in- tended is not sufficient, where the defendant denies any intention. 7 Ves. 309 ; nor where equitable waste of one kind only has been done or threatened, will the injunc- tion be extended to equitable waste of other kinds, Coffin v. Coffin, Jac. Rep. 70. Where the title is doubtful, or disputed as between devisee and heir at law, or other- wise, it will not be granted ; Field v. Jackson, 2 Dick. 599 ; Smith v. Collyer, 8 Ves. 89 ; Pilsworth v. Hopton, 6 Ves. 50 a ; and see Norway v. Rowe, 19 Ves. 146, 154. An injunction may be obtained in respect of equitable waste against a tenant in tail after possibility ofissue extinct, Williams v. Williams, 15 Ves. 423, 30 ; and against a tenant for life without impeachment of waste taking the produce of mines unopened, Tracy v. Hereford, 2 Bro. Ch. Ca. 137, 8; Whitfield^. Blewiti, 2 P. Wms. 241 ; (and see Clavering v. Clavering, 2 P. Wms. 388 ;) or cutting timber growing either for the ornament or shelter of the house, Packington's case, 3 Atk. 215; Chamberlayne T. Dummer, 3 Bro. Ch. Ca. 549; IffiiZKams v. M'Namara, 8 Ves. 70, 2d edit. ; Marquess of Downshire-Y. Sandys, 6 Ves. 107, 110 n.; Day v. Merry, 16 Ves. 375 a; Lushington 8 The general rule is, that everything is waste which occasions a permanent injury to the inheritance ; but it has been said that the situation of this country requires ant, *351 BILLS TO RESTRAIN WASTE. ^otherwise well entitled unto the premises hereinafter described, did Lease granted by a certain indenture bearing date , and made between your to the defend- ^^^^^^^ ^f ^^le One part and 0. D. of (the defendant hereinafter named) of the other part, demise lease set and to farm let unto the said C. D. his executors administrators and assigns, All that mes- suage, &c. [describing the premises as in the lease'] To hold the same with their appurtenances unto the said C. D. his executors adminis- trators and assigns from the day of then last past, for the term of years thence next ensuing at the yearly rent of T. Boldero, 6 Madd. 149; Coffin v. Coffin, Jac. Rep. 70; (and see Atlomey-Omeral v. Duke of Marlborough, 3 Madd. 498;) or in parks, Sirathmore r.Boioea, 2 Bro. Oh. Ca. 88; and see 16 Ves. 183; and also ugainst permissive waste, Caldwell r. Baylis, 2 Mer. 408. On the equitable rule which restrains a tenant for life without impeachment of waste from felling timber trees nnfit to be felled as timber, Smythe t. Smylhe, 2 Swanst. 252, and the cases collected in note (a), ib. p. 253 ; or cutting decayed timber, Perrott V. Perron, 3 Atk. 93. A tenant for life without impeachment of waste, with power to sell, if he sells, is not entitled to the produce of timber on the estate, Doran v. Wiltshire, 3 Swanst. 699 ; and see Wickham v. Wickham, Coop. 828 ; S. C. 19 Ves. 419. It is not waste to cut timber where necessary for the growth of the underwood in which it is situated, Knight v. Duplessis, 2 Ves. sen. 361, and see 16 Ves. 179 ; but a bill will lie to restrain a tenant for life from cutting underwood of an insufficient growth, Brydges v. Stephens, 6 Madd. 279, and see 8 Ves. 105. An injunction against waste may be obtained against a vendor if the contract is admitted, Norway v. Rowe, 19 Ves. 150 ; so also against a mortgagor, 3 Atk. 210, or a mortgagee in fee, or for years, 3 Atk. 723 ; but a mortgagor may cut underwood of proper growth, Hampton v. Bodges, 8 Ves. 105 ; 2d edit, and see note (84), ibid. An injunction against waste is also obtainable against a lessee to prevent his cutting growing timber, Vansendau T. Rose, 2 Jac. & W. 264; Bishop of Winchester v. Wolgar, 3 Swanst. 493, note (a) ; or injuring fish ponds, Earl Bathurst v. Burden, 2 Bro. Ch. Ca. 64 ; or breaking up ancient meadow or pasture land. Lord Gray de Wilton v. Saxton, 6 Ves. 106 ; Drury v. Molins, ib. 328 ; or from sowing lands with mustard or any other pernicious crop, Pratt v. Brett, 2 Madd. Rep. 62 ; or from digging the soil for bricks. Bishop of London v. Webb, 1 P. Wms. 527 ; or acting contrary to his ex- press covenants, Kimpton v. Eve, 2 Ves. & B. 349 ; (see further the cases referred to in note (2), antea, p. 350 ;) also to restrain waste by copyholders, Richards v. Noble, 3 Mer. 673, (overruling Bench v. Bampton, 4 Ves. 700;) et vide antea, p. 273, from *XC. ; or between tenants in common, see Twort v. Twort, 19 Ves. 128, or coparceners, S. C. ; so also to restrain the owner of a mine working minerals in the adjoining laud of another, though a mere trespass, Mitchel v. Dors, 6 Ves. 147 ; and see Mortimer v. Coitrell, 2 Cox, 205; so also to restrain waste by a rector, Strachy v. Francis, 2 Atk. 216. an application of the rule different from that which might be proper in England. Keeler v. Eastman, 11 Verm. 293; Findlay v. Smith, 6 Munf. 134. A threatto commit waste is sufficient to ground an injunction upon. Loudon v. Warfield, 5 J. J. Marsh. 196; Livingston v. Reynolds, 26 Wend. 115. A bill in equity is the appropriate remedy for a mortgagee against a mortgagor in possession, who is impairing the security by committing waste. Cooper v. Davis, 15 Conn. 556 ; Brady v. Waldron, 2 Johns. C. R. 148 ; Salmon v. Clageti, 3 Bland. 125 ; Capner v. Flemington Mining Company, 2 Green. Ch. 467. A tenant in dower of coal lands, or a, tenant for lifej may take coal to any extent from a mine already opened, or sink new shafts into the same vein of coal ; Crouch v. Puryear, 1 Rand. 258 ; 7 Harris, 323 ; 12 Id. 162 ; and may take reasonable firewood ; Gardiner v. Dering, 1 Paige, C. R. 573 ; but it has been held that a tenant for life has no right to take clay or wood from the premises for the manufacture of bricks. Livingston v. Reynolds, 2 Hill, 157 ; see also, 26 Wend. 115. The injunction to stay waste, is as a generalruleprospective, and the court will not, unless under very special circumstances, grant an injunction to prevent the re- moval of timber already cut ; Watson v. Hunter, 5 Johns. C. R. 169 ; and so far as the bill seeks to recover for waste already committed, it cannot be sustained. Downing V. Palmateer, 1 Monr. 64. BILLS TO RESTRAIN WASTE, 351 £ payable quarterly as therein mentioned, and under and sub- ject to the covenants stipulations and agreements therein contained on the part of the said Q. D. his executors administrators and as- signs to be observed and performed, In which said indenture is con- tained a covenant on the part of the said C. D. for himself his heirs executors administrators and assigns that he the said C. D. his exe- cutors administrators and assigns should and would, &c. [stating shortly the covenant to keep the buildings and premises in repair, and also to manage and cultivate the lands,'] As by the said inden- ture to which your orator craves leave to refer when produced will more fully appear. And your orator further showeth that the said Defendant C. D. took possession of all the said demised premises, and that the *?°'^ posses- same were then in good repair and condition but have since become premises very ruinous and bad, and the said lands very much deteriorated which were from the wilful mismanagement and improper cultivation thereof by then in good or on the part of the said C. D., and that he has ploughed up certain have'sincebe- fields called containing acres contrary to the terms of his come ruinous said lease, and has otherwise committed great spoil waste and des- and deterioia- truction in upon and about the said demised messuage, &c. and pre- l^ence*^™ mis- mises. *And your orator further showeth that he hath frequently by r- :^q^9 -i himself and his agents applied to the said C. D. and requested him L J to put the said messuage, &c. and all the buildings fences gates stiles ™if,j'}i^g™^'^ ' and rails into good repair, and to keep the same in good and suffi- ploughed up cient repair during the remainder of the said term, and to make sat- certain fields isfaction to your orator for all the damage done to the said estate by ^"^ g°eat"' " his mismanagement or neglect in the management thereof according waste. to the terms of the said lease and course of husbandry practised in Applications the neighboring country ; and your orator hath also in like manner to the defend- requested him not to plough up any other of the said lands demised ^° ' to him as aforesaid which he is not at liberty to plough according to the terms of the said lease. And your orator hoped that the said 0. D. would have complied with such applications and requests as in justice and equity he ought to have done. But now so it is, &c. Pretence ttut [see form IV. p. 5,] the said C. D. absolutely refuses so to do ; and have"been ^^ he at times pretends that the said messuage or tenement and all the kept and are out-houses and out-buildings thereunto belonging and all the build- in good repair, ings fences gates and stiles on the said lands have been constantly p'^oug^e'd up°' during his possession thereof and now are in good repair and condi- any land con- tion, and that he hath never ploughed up any part of the said demised trary to the lands which he was not at liberty to plough by the terms of the said Jg™\°or n'eV lease and the course of husbandry used and approved in the neigh- i^^.,^^ ^^e ma- borhood thereof, and that he hath never in any manner neglected nuring, and the manuring or taking care of any part thereof but that he hath tb=^t the pre-^^ constantly used and employed cultivated and manured all such lands ^^^^ condi- in a proper regular and careful manner according to the terms of the tion as when said lease and a good course of husbandry used and practised in the j^e entered neighboring country, and that all the said demised premises are in '^■'^°°' as good plight and condition in all respects as the same were when Charge the he entered thereon. Whereas your orator charges the contrary of 2,°°*''"^' all such pretences to be the truth. And your orator further charges ^^l^^ art'"'" that the said farm and premises are now from the neglect and gross worth f 352 BILLS TO RESTRAIN WASTE. less than when he entered. That it would cost £ to reinstate them. That the de- fendant ought to repair them, and make compensation for the waste done. That he in- tends to plough up other lands, and ought to be restrained therefrom, and from com- mitting fur- ther waste. [ *353 ] Prayer. mismanagement of the said defendant worth to be sold the sum of £ less than the same were worth to be sold when the said C. D. first took possession thereof, and that it would cost the sum of £ and upwards to put the same into as good plight and condi- tion as the same were in at the time of the date of the said indenture of lease. And your orator further charges that the said C. D. ought to put the said demised messuage, &c. and premises into good repair and condition, and to make a reasonable compensation to your orator for the waste and damage done or arisen thereto. And your orator charges that the said defendant threatens and intends to plough up the other or remaining pasture fields called part of the said de- mised premises, and that he ought to be restrained therefrom, and from committing any further or other waste spoil or destruction in upon or to the said farm lands and premises or any part thereof. All which actings, &c. [see form VI. p. 5, and interrogate to the stating and charging part8.'\ And that the said defendant may be compelled by the decree of this honorable court to put the said messuage, &c. and premises into good and sufficient repair, and to made satisfaction to your orator *for all waste done committed permitted or suffered by him on the said farm lands and premises, and all damage done by him or oc- casioned thereto by his mismanagement or neglect (your orator hereby waiving all forfeitures and penalties incurred by the said de- fendant on account or in respect of the waste done or committed by him on the said demised premises.) And that the said defendant may be decreed to keep the said farm lands and premises in good and sufficient repair and condition during the continuance of his interest therein, and to manage and cultivate the said farm and lands in a proper and husband-like manner according to the terms of the said lease and the custom of the country. And that he may be re- strained by the injunction of this honorable court from ploughing up the said remaining fields forming part of the said demised premises, and particularly the said fields called , and from committing or per- mitting any further or other waste or spoil on or to the said demised premises or any part thereof, and that all proper directions may be given for effectuating the purposes aforesaid. \_And for further relief, see form VIII. p. 5.} May it please, &c. [«ee forms No. 1 and 5, p. 6 and 7.J CXXIX. Bill hy tenants for life in remainder against a feme covert tenant for life in possession of the settled estates and her husband, for an injunction to restrain them from felling or barking trees, or committing any waste.{S) The bill also prays, that an account may he taken of the moneys produced by the sale of trees already felled, and for payment of the amount into the bank ; that thetrees already barked may be felled, and the produce thereof paid into the bank ; that the whole moneys so to be paid in may be laid out (5) Another form of prayer for an injunction to restrain waste in felling trees, &c. is inserted antea, p. 1,foTm No. 5. BILLS TO BBSTRAIN WASTE. 353 in the purchase of lands to he settled to the like uses as the settled estates ; that in default of payment of the moneys to be found due from the defendants, that the same may he satisfied out of the rent of the settled estates, and that for such purpose a receiver may he appointed. States that Sir S. A. bart. deceased being seised of an estate tail in possession of and in several manors, &c. situate, &c. and being desirous to settle the same did by indenture, &c. [^Stating an in- denture of hargain and sale to make a tenant to the prcecipe for suffering a recovery of the manors, S^c. with limitation of the uses, To the said Sir S. A. for life ; remainder. To his wife Mary {de- fendant) for life ; remainder, To the heirs of Sir S. A.'s hody ; remainder, To A. B. for life {since dead) ; remainder, To a trustee for 99 years if plaintiff Z. Z. should so long live ; remainder. To plaintiff Z. A. eldest son of Z. Z. for life, sans waste ; remainder, To the first and other sons of Z. A. in tail ; remainder. To the daughters of Z. A. in tail; remainder. To the second third and other sons of Z. Z. in tail ; remainder, To plaintiff Z. B. daughter "^of Z. Z. for life sans waste ; with similar limitations to her first [ *354 ] and other sons ; remainder over. — Trusts of the term to pay the rents as plaintiff Z. Z. should appoint, and in default of appoint- ment then to Z. Z. herself. — A recovery was suffered accordingly.'] That Sir A. died without revoking the uses and without issue but Death of the leaving M. A. his widow, and the said A. B. in the said indenture settlorwithout of bargain and sale named, as also the plaintiffs Z. Z. Z. A. and Z. ^idowami"^ B. him surviving. • the plaintiffs. That the said A. B. is since dead, and the said defendant Mary A. Death of a shortly after the death of the said Sir S. A. intermarried with the de- tenant for life fendant S., and being entitled by virtue of and under the trusts and "^ ^^^^^^ ^^■ limitations contained in the said indenture of bargain and sale to an the"estator's estate for and during the term of her natural life only, the said de- widow M. S., fendant entered on the premises, atid hath continued in the possession ^^° became and receipt of the rents and profits thereof ever since. estate^s as°ten- That by virtue of and under the trusts and limitations contained ant for life. in the said indenture of bargain and sale, the plaintiff Z. Z. is en- Title of the titled to an estate for life in the premises expectant on the death of plaintiffs, the defendant Mary S., and the plaintiff Z. A. is entitled in remain- der to an estate for life therein without impeachment of waste, with remainder to his first and other sons in tail ; and that plaintiff Z. B. is by virtue of the said indenture of bargain and sale, and for default of such issue of the plaintiff Z. A. as also in default of any male issue of the said Z. Z. entitled to an estate for life, with such re- mainder to her first and other sons as before is .set forth. That at the death of the said Sir S. A. there was standing and That there growing on the said manor and lands several extensive woods, con- '^^re exten- sisting of several hundred acres of land covered with a variety of growki*g on different trees, and among others of several thousand oak ash and the estates. elm trees, the greater part of which said oak ash and elm trees Description of were then of the growth of sixty seventy or eighty years, and were "i« ti'ees- of the height of 30 feet and upwards, and the same measured from 354 BILLS TO EBSTEAIN WASTE. six to nine inclies and upwards in the square, all which said oak ash and elm trees were then of considerable value, and in a course of years would have become of much greater value, and ought to have been preserved for the benefit of the several persons to whom the estates in remainder and expectancy after the death of the said defendant M. S. are limited, and particularly for the bene- fit of plaintiff 7i. Z. and of plaintiff Z. A. who are by virtue of and under the said indenture entitled to estates for life without impeach- ment of waste in the premises. Whereas the said defendant M. S. is by virtue of and under the said indenture entitled only to a strict and limited estate for her life, and not dispunishable for waste, and That the de- therefore the said defendant M. S. hath no right to cut down or apply fendant M. S. j.q j^gj. q^^ ^gg ^^j gf j-jjg ^^^ ^q)^ ^y. gj^ trees Standing or growing has no right ^, . , •' . , , . ~ ^ • , ° i ° to cut trees or upon the Said premises or any part thereor, nor to commit or do any to commit waste Spoil or destruction in the woods growing on the said premises, waste. and plaintiffs were therefore in hopes that the oak ash and elm trees so as aforesaid standing and growing on the said premises would have been preserved accordingly, and that no attempt would have been made to cut down or destroy the same, either by the said defendants . T. S. and M. his wife, or by any other person or persons by their [ *355 ] *order or for their use. But now so it is, &c. [Proceeding as in form IV. p. 5, as far as the word "premises."^ They the said de- fendants, in order wholly to defeat the intention and true meaning of the said indenture of bargain and sale, and in order to defraud plaintiffs of the whole benefit thereby intended for them, have That the de- already cut down and caused to be cut down many thousand oak fendants haye ^gjj g^^j gj^j ^rees which were standing upon the said premises at many thou- ^^^ death of the said Sir S. A., the greater part of which were of sand trees, the growth of sixty seventy or eighty years, and very few if any and sold the of them of less than twenty years growth, and the greatest part ' of which were thirty feet high, and from six to nine inches square, and fit for several purposes in building, and have actually sold and disposed of the same for J10,000 and upwards, or for some And also Other very considerable sum of money ; and have also stripped the barked many i,ark from a great number of other oak ash and elm trees and other and^are^pre- g*"^^* trees, the greater part of which were of sixty seventy or paring to out eighty years growth, and none of them or at least very few under down all the twenty years growth, and are now preparing to fell or cut down all ^g°o/Jh7"gs- *'^® °^^ ^^}^ ^^^ ^]^ ^^^^^ ^^^ ^^^ ^^^ ""^°°'^ growing and remaining tates. on the said premises as fast as they can, and they the said de- fendants threaten to sell and dispose thereof for their own benefit. And plaintiffs have by themselves and their agents in an amicable Representa- manner represented to them that the said defendant M. S. is a strict th"" d7 ^'^d *° *®°^'^* f°^ li^® °f *^® premises, and therefore hath no right or title ants. " *° '^^^ down or take any oak ash or elm trees standing or growing thereon, but merely and only to receive and take the rents and profits of the said premises for the term of her natural life ; But the said defendants persist in their resolution in cutting down the said wood indiscriminately, and of converting and applying the same Pretences— to their own use and benefit ; And they pretend that no such deed that no inden- of bargain and sale as hereinbefore set forth was ever executed by BILLS TO RESTRAIN WASTE. 855 the said Sir S. A., and that no such recovery as hereinbefore men- tureofbargain tioned was ever suffered ; but on the contrary they the said de- ^'^^ ^^^^ ^^^ fendants insist that by virtue of or under some settlement made rJoo've^v suf"' previously to her marriage with the said Sir S. A. the said de- fered. lendant M. S. and the defendant T. S. in her right is and are That under a entitled to an estate for life in the premises without impeachment ''"^^r settle- of waste, and therefore the said defendants contend and insist that "tenant to' they have a good right and title to cut down the said oak ash and life without elm trees and convert the same to their own use. Whereas plain- impeachment tiffs expressly charge that such indenture of bargain and sale between thaUhev have such parties and to such purport and effect as before set forth was a right to cut actually executed by the said Sir S. A., and that in pursuance down the thereof such recovery as before set forth was actually suffered, and *'^^^'- that no settlement whatsoever ever was made or executed of the 9^^^^^ ^\^^ said premises by the said Sir S. A. other than and except the said waVezecuted, indenture of bargain and sale ; and so the said defendants will at and the re- other times admit. But then they pretend that subsequently to the covery suffer- execution of the said indenture of bargain and sale, and in pur- otheTsettie- suance of the power and authority therein and thereby reserved to ever made, the said Sir S. A., he the said Sir S. A. in his life-time by some Pretence that deed or instrument in writing or by his last will and testament in t*"^ settlor ex- *writing attested in such manner as by the said indenture of bargain ^t" *qcr^ and sale is required, actually revoked and made void all and every L ^oo J the uses estates and matters and things in and by the said indenture P^^f ^^-J^^ of bargain and sale appointed limited directed and contained concern- voking the^^' ing the said manors lands tenements and hereditaments, and thereby uses, and ap- limited devised and disposed of the same to or in trust for the said pointed the es- defendant M. S. and her heirs for ever or limited or gave to her such ^^If^u. SAn estate therein as is dispunishable of waste. Whereas plaintiffs ex- fee, or limited pressly charge that the said Sir S. A. never in any manner revoked to her an es- the said indenture of bargain and sale, but that the same remains l^^able of"" wholly unrevoked and in full force and virtue. And plaintiffs waste. further charge that all and every the trees standing and growing Charge that upon the said premises at the decease of the said Sir S. A. so as the indenture aforesaid barked and stripped by the said defendants are thereby °aiewas neTer rendered incapable of vegetation and will inevitably perish unless revoked, the same are cut down. And therefore plaintiffs have applied to That the trees defendants and requested them to permit and suffer the timber trees "w^tich have so as aforesaid barked and stripped by them to be cut down and are rendwed sold and disposed of, and that the moneys arising by the sale incapable of thereof together with the moneys which have arisen from the sale vegetation ; of the timber trees heretofore cut down ought to be laid out in the "^^^^ plaintiffs purchase of lands and tenements to be settled to the like uses with to^the^defend- the lands and tenements comprised in the said indenture of bargain ants to permit and sale. And for that purpose ptemfe^s have requested the said tbe same to be defendant T. S. to come to a just and fair account with them for ^^^^ the'pro" all sums of money had received and taken by him or by any other duce thereof person or persons by his order or for his use on account of the timber together with trees so as aforesaid cut down by him, and to pay the same to some *^® tree^s°b^-°^ person to be laid out accordingly. But the said defendants abso- fore felled lately refuse to comply with such requests, and persevere in their might be laid 356 BILLS TO KBSTRAIN WASTE. out iuthepur- cbaae of lands to be settled to the like uses. Also applica- tions made to the defendant T. S. to ac- count for the produce of the trees felled. And refusals to comply therewith. Charge that T. S. is a per- son of small fortune, and if permitted to cut down the trees he will not be able to answer for the value, and the plaintiffs will be left with- out remedy. [ *357 ] That the de- fendants ought to ac- count. And be re- strained from cutting down any trees, or commiting waste. said scheme and design of converting the whole of the said timber and timber trees to their own use. And plaintiffs further charge that defendant T. S. is a person of small fortune and therefore plaintiffs have great reason to apprehend that in case he the said defendant shall be permitted to cut down sell and dispose of the said timber and timber trees now standing and being on the said ma- nors, &c. the whole moneys arising by the sale thereof will be actually dissipated and lost, and that plaintiffs when they shall respectively become entitled to the possession of the said premises, will be left destitute of any remedy for the recovery of the value of such timber, therefore pZamii^s are advised and insist that defendants ought in equity to be compelled to come to a just and fair account with plaintiffs for all and every sum and sums of money had received and taken by them or either of them or any other person or persons by their or either of their order, or for their or either of their use on account of the sale of such timber trees ; and that the same ought in equity to be laid out in the purchase of lands and tenements to be limited and settled to the like uses to which the said lands and tenements are limited in the said settlement ; and that in the mean time the said defendants ought to be restrained by the injunc- tion of this honorable court from cutting down barking felling or disposing of the timber trees growing on the said premises, and *from committing any further waste thereon. All which actings, &c. {see form'Yl. p. 5, interrogating to the stating and charging parts.'] And that the said defendants may answer the premises, and may be decreed to account for all and every sum and sums of money had received or taken by them or either of them or by any other person or persons by their or either of their order or for their or either of their use, for or on account of the sale and disposition of the timber trees cut down or sold by them or by their order ; and that such sum or sums of money as shall upon such account appear to have been received by the said defendants or either of them or any other per- son or persons by either of their order or for their or either of their use, may be decreed to be paid into the bank with the privity of the accountant-general of this court, by a short day to be appointed by this court ; and that the several timber trees barked and stripped by the said defendants or by their order may be decreed to be felled or cut down and sold and disposed of ; and that the money arising by the sale thereof may in like manner be paid into the bank with the privity of the said accountant-general ; and that the moneys so to be paid in by the said defendants as well as the money which shall arise by the sale of such barked timber trees may be laid out in the purchase of lands and tenements or otherwise as the court shall direct, to be limited and settled to such uses and for the benefit of such persons respectively as the lands and tenements comprised in the said indenture of bargain and sale are limited and settled ; and that in default of payment by the said defendants of such sum as upon the account so to be taken shall appear to be coming from them to the estate of the said Sir S. A., and for the benefit of the persons who may hereafter become entitled thereto under the said settlement then and in that case that the said defendants may be compelled to BILLS TO PERPETUATE THE TESTIMONY OP WITNESSES. 357 answer and satisfy the same by and out of the rents and profits of the said estates till the whole of such sum of money shall be duly answered and satisfied ; and that for that purpose a receiver may be appointed of the rents and profits of the said estates, and that such receiver may be directed from time to time to pay such rents and profits into the bank with the privity of the accountant-general to be placed to the credit of this cause ; and that the same when paid in may by the order of this court be decreed to be laid out in the pur- chase of lands and tenements or otherwise as this court shall direct, to be limited and settled to such uses and for such purposes as here- inbefore mentioned ; and that in the mean time the said defendants may be restrained by the injunction of this honorable court from cutting down, felling, barking or otherwise wasting or impairing any timber trees standing and growing on the said manors and estates comprised in the said deed of bargain and sale, and from committing any waste or spoil on the said estates and premises or any part there- of. l_And for general relief, see form VIII. p. 5.] For Bills to carry the trusts op wills into execution, vide antea, p. 213, 221. *CHAPTER III. [ *358 J original bills not praying relief. Original Bills not praying relief are of two kinds :(1) I. A bill to perpetuate the testimony of witnesses. II. A bill for discovery of facts resting within the knowledge of the person against whom the bill is exhibited, or of deeds, writings or other things in his custody or power. SECT I. bill to perpetuate the testimony op WITNESSES. Courts of equity do not entertain bills to perpetuate testimony generally, for the purpose of being used upon a future occasion, unless where it is absolutely necessary to prevent a failure of jus- tice. (2) If it be possible that the matter in question can, by the (1) Ld. Red. Tr. PI. p. 34, 51, 4th edit. (2) Bellamy v. Jones, S Veg. 31 ; Shellij v. , 13 Ves. 56, 2d edit. ; see also Angell V. Angell, 1 Sim. & Stu. 89 : Ld. Bed. Tr. PI. p. 51, and 149, 4th edit. 358 BILLS TO PERPETUATE party who files the bill, be made the subject of immediate judicial investigatioa, no such suit is entertained. But if the party who files the bill can, by no means, bring the matter in question into present judicial investigation, (which may happen where his title is in remainder,(3) or where he is himself in possession and only threatened with disturbance and not actually disturbed,(4)) there courts of equity will entertain such a suit, for otherwise the only testimony which could support the plaintiff's title might be lost by the death of his witnesses. Where he is himself in possession, the adverse party might purposely delay his claim with a view to that event. It is therefore ground of demurrer to a bill to perpetuate testimony generally, that it is not alleged by the plaintiff that the [ *359 ] *matter in question cannot be made by him the subject of present judicial investigation. (5) But courts of equity do not merely entertain a jurisdiction to take or preserve testimony generally, to be used on a future occasion, where no present action can be brought, but also to take and pre- serve testimony in special cases in aid of a trial at law, where, the subject admits of present investigation, (6) but before in the regular course 'of proceedings the witnesses can be examined, their testimony is likely to be lost :(7) thus, where there is only one witness to ex- amine on which the plaintiff's claim depends, or although there are several witnesses, if they are aged, or too ill or infirm to attend in a court of law, and their testimony therefore in danger of being lost before the time of trial :(8) and it ought to be stated in the bill that the action was commenced before the same was filed.(9) At law no commission to examine witnesses who are abroad for the purpose of being used at a trial can go without the consent of the Adverse party ; but courts of equity will upon a bill filed grant a commission without such •consent.(lO) Where a present action may be brought, a bill for a commission to examine witnesses abroad in aid of a trial n (3) Lord Durslaj v. FUzhardinge Berkeley, 6 Ves. 251, 9. (4) Duke of Dorset v. Girdler, Pre. Cha. 531. (5) Angell v. Angell, 1 Sim. & Stu. 89. f6) Angell v. Angell, 1 Sim. & Stu. 83, 90. (T) Sir Radnus Bagnold v. Green, Gary's Rep. 67, 8 ; Anno. 2 Eliz. S. C. 1 Dick, p. 2 ; 2 Madd. Oil. Pr. 251 ; Ld. Red. Tr. PI. p. 150. As to the distinction between the examination of witnesses de bene esse, and for perpetuating testimony, see 1 Ves. & B. 139, 140 ; Frere v. Green, 19 Ves. 319. (8) See 19 Ves. 321, Anon.; Madd. Oh. Pr. vol. i. p. 186, 8 ; vol. ii. p. 251; Ft postea, p. 46T. (9) See note {y), p. 52, Ld. Red. Tr. PI. 4th edit. An affidarit of the circumstances by which the evidence is in danger of being lost should be annexed, where the ob- ject is merely the examination of witnesses de bene esse. As to the form of such affidavit, see 2 Madd. Ch. Pr. 252 ; Rowe v. , 13 Ves. 261 ; and note (1), to Hankin T. Middleditch, 2 Bro. Ch. Ca. edit, by Belt, 640. See also Ld. Red. Tr. PI. p. 150. (10) See Devis v. Turnbull, 6 Madd. 233 ; in which case the defendant at law had refused his consent, and had gone out of the jurisdiction ; a bill was filed to obtain a commission, and on affidavit of the facts, service upon his attorney at law was ordered to be good service. Where a bill was filed against infants to perpetuate testimony, and after subpoena served but before appea,rance they absconded, the plaintiff upon certain terms, was permitted to examine his witnesses de bene esse ; Frere v. Grem, 19 Ves. 319. In Baskeit v. Toosey, 6 Madd. 261, the Vice Chancellor granted a commission for examination of witnesses at Beucoolen in India, notwithstanding the 13 Geo. 3, c. 63, s. 44. THE TESTIMONY OF WITNESSES. 359 at law is demurrable to if it do not aver that an action is pend- ing.(ll) A bill may be filed to perpetuate testimony in may cases where a bill could not be brought for relief without waiving penalties ; as in waste, or in the case of a forged deed, or in the case of insurances, after commissions to examine witnesses abroad as to fraudulent losses. (12) In Giell V. Sayward,{12>) the Lord Keeper said that he would not allow examinations in perpetitam rei memoriam, for such trivial things as a right of eommon,(14:) or right of way or *water-oourse ;(15) or [ *360 ] at least not till after a recovery at law.(16) However a bill will lie to perpetuate testimony respecting a right of common and way,{yi) but if the charges in the bill are too general and not sufficiently des- criptive of any particular right, a demurrer will hold, (18) for the bill must set out the way exactly, per et trans, in the same manner as it ought to be set out in a declaration at law.(19) Such a bill will also lie to prove a modus ;(20) or a promise which is to be performed after the death of A.(21) A bill to perpetuate testimony must state the plaintiffs title to the thing in question or his interest in the subject(22) — the matter touching which the plaintiff is desirous of acquiring evidence(23) — the interest which the defendant has, or pretends to have or claim to contest the title of the plaintiff in the subject of the proposed testi- mony (24) — that the witnesses are aged and infirm, (25) and likely to die before the time of trial can arrive,(26) or that they are about to quit the kingdom, (27) or are going to Scotland,(28) or are beyond sea, — or that the facts to be examined to are of great importance, and no other but a single witness, although neither aged nor in- firm, (29) or only two witnesses(30) to be examined, is or are privy (11) Angell v. Angell, 1 Sim. & Stu. 91. (12) Earl of Suffolk v. Grem, 1 Atk. 450; 1 Madd. Ch. Pr. 191. (13) 1 Vera. 312; 1 Madd. Cb. Pr. 191. (14) Pawlet T. Ingrey, 1 Vern. 108. And see Cresset v. Miiton, 1 Ves. jun. 448, 2d edit. S. C. 3 Bro. Ch. Ca. 479. (15) Duke of Dorset v. Girdler, Pre. in Ch. 531. (16) Pawlet T. Ingrey, 1 Tern. 308 ; so wherever a matter is properly triable at law as a question of title ; Bechinal t. Arnold, 1 Vern. 354, on a plea of purchase without notice; Parry r. Rogers, 1 Yern. 441, on demurrer; and see Cox v. Colley, 1 Dick. 55. (17) See 1 Ves. & B. 139. (18) Cresset v. Mitton, cited supra, note (14). (19) Gell Y. Bayward, 1 Vern. 312. (20) Somerset v. Frotherby, 1 Vern. 184. (21) 1 Madd. Ch. Pr. 191 ; 2 Com. Dig. 471 ; 1 Rol. 383, C. (22) Lord Dursley v. Fitzhardinge Berkeley, 6 Ves. 251 ; Allan v. Allan, 15 Ves. 130. (23) The facts must be particularly stated; Bartlett y. Hawker, cited 1 Madd. Ch. Pr. 193 ; and aee Knight v. Knight, 4 Madd. Rep. 1. (24) Lord Dursley v. Fitzhardinge Berkeley, 6 Ves. 251. (25) A witness is not, for the purpose of this bill, considered old unless he is seventy years of age; Mtshugh v. Lee, Amb. 65; and see Priehard t. Gee, 5 Madd. 364; Phil- lips V. Carew, 1 P. Wms. 117, 6th ed. (26) See Bellamy v. Jones, 8 Ves. 30. (27) Shelley v. , 13 Ves. 57; (but not if they are the plaintiffs servants; Bunb. 320.) (28) Botts V. Verelst, 2 Dick. 454. (29) Shirley v. Earl Ferrers, 3 P. Wms. 77, 6th ed.; Pearson v. Ward, 1 Cox, 177 ; Eankin v. Middleditch, 2 Bro. Ch. Oa. 640. (30) Lord Cholmondeley v. Lord Oxford, 4 Bro. Ch. Ca. 156 ; S. C. MS. referred to in note (1). 2 Bro. Ch. Ca. ed. by Belt, p. 640. 360 BILLS TO PERPETUATE to such facts whereby the plaintiff is in danger of losing his or their testimony ; and as before observed, a bill to perpetuate the testimony of witnesses generally, ought also to state that the facts about which the witnesses are to be examined, cannot be immediately investi- gated in a court of law. A commission is then prayed to examine, the witnesses, to the intent that their testimony may be preserved, and a subpoena is also prayed to the parties interested to show cause, if they can, to the contrary ; but the bill should pray no other relief.(31) If the defendant show cause to the contrary within fourteen days, the plaintiff is not allowed to proceed. (32) [ *861 ] *After the bill is filed, the court on an affidavit verifying the facts stated in the bill,(33) and that the witnesses are material, will on motion or petition(34) grant a commission if the witnesses live in the country or beyond sea. (35) If they reside within ten miles of London, it will order them to be examined in court de bene esse, saving just exceptions to the other side, which will make their depositions valid in their cause only, and against those who are parties to it, and all claiming through, or under some or one of them(86) whose interest has accrued since the bill was preferred ; but the depositions must not be taken ex parte, without notice.{Sl) A bill to perpetuate testimony may be dismissed for want of pro- secution, any time before replication and examination of witnesses ; but after the witnesses are examined, the cause must not be set down to be heard ; if it is, it will be dismissed with costs, but so as not to prejudice the plaintiff in perpetuating the testimony of the witnesses. (38) With respect to costs, they are never given against the defend- ant,(39) and he is entitled to his costs immediately after the commis- sion is returned, notwithstanding he may have cross-examined the plaintiff's witnesses,(40) provided he (the defendant) did not examine any witness. (41) (31) Rode V. Gannel, 3 Atk. 439, on demurrer; Vaughan v. FiUgerald, 1 Scho. & Lefr. 316; 2 Vent. 366. (32) 1 Madd. Ch. Pr. ISY ; 2 Com. Dig. ill. (33) See Ld. Red. Tr. PI. 52, 150, 4th ed. (34) Phillips r. Carew, 1 P. Wms. 117, 6th ed. ; 1 Madd. Ch. Pr. 187. (35) In Hall v. De Tasiet, 6 Madd. 269, the Vice-Chancellor held that where the commission is returnable on a day certain, an order cannot be made to extend the time. (36) 1 Madd. Ch. Pr. 188; 2 Cora. Dig. 472. (37) Loveden v. Milford, 4 Bro. Ch. Ca. 539 ; and note (1) to Hankin v. Middleditch, 2 Bro. Ch. Ca. ed. by Belt, p. 640 ; Bellamy v. Jones, 8 Ves. 30. See further on this subject, and as to the publication of depositions, 1 Madd. Ch. Pr. 188 ; TealeY. Teale, 1 Sim. & Stu. 385 ; Corbetl v. Corbeit, 1 Ves. &B. 335 ; Gordon v. Gordon, 1 Swanst. 166, 171 ; Bradley Y. Crackenlhorp, 1 Dick. 182 ; Morrison v. Arnold, 19 Ves. 669. (38) Anon. Ambl. 237 ; Morrison t. Arnold, 19 Ves. 671. (39) Clifton V. Orchard, 1 Atk. 610. [What is said in 2 Atk. p. 167, is not now the rule.] (40) Vaughan v. Fitzgerald, 1 Scho. & Lefr. 316. (41) See 1 Madd. Oh. Pr. 195 ; Foulds v. Midgley, 1 Ves. & B. 138, 140, n. (1) ; Beames on Costs, 31. THE TESTIMONY OF WITNESSES. *362 CXXX. Bill hy a devisee in fee in possession, to perpetuate tlie tes- timony of the witnesses to the wiU. To, &c. Humbly complaining showeth unto your lordship your orator T. H. of, &c. brother of the half blood and devisee named in the last will and testament of T. R. of, &c. deceased. That the said T. R. was in Testator seis- his life-time and at the time of his death seised or entitled to him ed of freehold and his heirs of or to divers freehold and copyhold manors, mes- ^"^^ copyhold suages, farms, lands, tenements and hereditaments situate in the several places hereinafter mentioned and divers other places, of con- siderable yearly value in the whole, and being seised or entitled and having duly surrendered the copyhold parts thereof to 'the use of his will, and being of sound and disposing mind, memory and under- standing, he made his last will and testament in writing bearing will of the date, &c., which was duly executed by him in the presence of and testator. attested by three credible persons, and which will with the attesta- tion thereof, is in the words following (that is to say ;) [stating the will verbatim.'] And your orator further showeth that the said T. His death R. afterwards, and on or about departed this life without re- ^'ill^o"* re- voking or altering his said will or any part thereof, whereupon your l°aie^ orator by virtue of the said will, became entitled in fee-simple to all plaintiff be- his said freehold and copyhold estates, subject as to such part came entitled thereof as aforesaid to the payment of so much of the funeral ex- ''^^ devisee in penses, debts and legacies of the said T. R. as his personal estate n^ossession of may fall short to pay ; and your orator accordingly, soon after the the estates. death of the said T. R. entered upon and took possession of all the said estates, and is now in possession and receipt of the rents and profits thereof and in the possession and enjoyment thereof. And your orator well hoped that he and his heirs and assigns would have been permitted to enjoy the same quietly without any interruption from any person whomsoever. But now so it is may it please your lordship that T. H. of, &c. who claims to be cousin and heir at claims set up law of the said T. R. alleging that he is the only or eldest son of o" ^^^ P^rt of T. H. and M. his wife, both deceased (which said M. H. as is also *ehe.ratiaw. alleged, was the only child of S. R. who as is likewise alleged, was the only brother of the father of the said T. R. that left any issue) combining and confederating with divers persons unknown to your orator pretends that the said T. R. did not make such last will and Pretending testament in writing as aforesaid, or that he was not of sound and that no will disposing mind and memory at the making thereof, or that the same ^gg ^ot duly was not executed in such manner as by law is required for devising executed, and real estates ; and therefore he insists that your orator hath not any t'^'^' testator right or title to the real estates late of the said T. R. or any part J^^^^ ^^j^'^j thereof, but that on his death the same descended unto him the said T. H. as his heir at law. Whereas your orator charges the con- Charge the trary of such pretences to be true. But nevertheless the said T. H. contrary. refuses to contest the validity of the said will during the life-time of 28 *363 BILLS TO PERPETUATE *the subscribing witnesses thereto, and he threatens that he will here- after dispute the validity of the said will when all the subscribing witnesses thereto are dead, whereby your orator and his heirs and as- signs will be deprived of the benefit of their testiinony. All which pretences of the said confederate are contrary to equity and good con- science, and tend to injure and oppress your orator in the premises, In consideration whereof and forasmuch as your orator cannot per- petuate the testimony of the subscribing witnesses to the said will without the assistance of a court of equity. To the end therefore that, &c.(42) [Proceed as in form VI. p. 5, interrogating to the statements.^ Prayer. And that your orator may be at liberty to examine his witnesses with respect to the execution and attestation of the said will, and sanity of mind of the said T. R. at the making the same, so that their testimony may be perpetuated and preserved. May it please, &c., [see form No. 1, p. 6, and note (o), ibid.'] W. A. Pray subpoena against T. H. Observations. — Bills to perpetuate the testimony of witnesses are only proper where the plaintiff by being in possession and undisturbed, , has no opportunity of asserting or trying his right at law. But where the defendant is in possession or has disturbed plaintiff, they are not proper, because plaintiff may have a remedy at law. N. B. In the words of course omit the words " order and decree." *CXXXI. Bill by a devisee, tenant for life, and the devisees in re- mainder, to perpetuate the testimony of witnesses to the will. To, &c. Huimbly complaining show unto your lordship your oratrixes and orators B. B. of, &c. widow and sole executrix of R. B. deceased (the testator hereinafter named,) J. H. of, &c. and S. his wife, H. of Testator seis- , and M. his wife, and B. of spinster. That the said and co'^^hofd "^" ^' ^^^^E: ^"^ ^^^ life-time and at the time of making his will here- estates. inafter mentioned and at the time of his death seised in fee of the freehold estates, and also possessed of and entitled according to the custom of the manor of T. D. in the county of S. to the copyhold estates of inheritance in his said will mentioned, and also of certain other freehold and copyhold estates, and also of considerable per- sonal estate, and being minded to dispose of the same, and having duly surrendered his said copyhold estates according to the custom (42) As the only object of this bill is to perpetuate testimony, the interrogating part seems unnecessary ; see 6 Ves. 263 : the following form may be adopted instead : — " To THE END therefore that the said T. H. and his confederates may set forth if they can why your orator should not have the said witnesses examined." And that your orator may, &c. THE TESTIMONY OF WITNESSES. *364 *of the said manor to the use of his will, did on or about the 18th day of June , duly make and publish his last will and testament in writing duly executed and attested so as to pass lands of inheritance, in the words and figures following (that is to say :) "This is the last will and testament of me R. B. of, &c. which I make and publish for the disposal of all my worldly substance estate and eifects whatsoever, in manner and form following (that is to say :) first I give devise and bequeath unto my dear wife B. B. all that my messuage tenement or farm called , and all other my freehold and fee-simple lands lying in the said county of S., and also all my customary and copy- hold lands of inheritance situate and being within the parish of , being parts and parcels of the manor of T. D. in the said county or elsewhere within the said manor, and which said customary or copy- hold lands I have surrendered into the hands of the lord of the said manor to the uses of this my will. To hold all and singular my said freehold and customary messuages or tenements lands hereditaments and premises with their respective appurtenances unto my said wife B. B. for and during the term of her natural life, without impeach- ment of or for any manner of waste, she rendering therefor all rents reparations suits and services due and to grow due to the lord of the said manor of T. D. for the time being in respect of the said custo- mary lands during the said term, and I do hereby subject and charge all and singular my said freehold and customary messuages tenements lands hereditaments and premises hereinbefore devised, with the pay- ment of all my just debts ; and from and immediately after the death of my said wife B. B. I do hereby give devise and bequeath all and singular the said freehold and customary messuages or tenements lands hereditaments and premises unto and amongst my son R. B. and to my daughters Sarah (the wife of J. H.) M. (the wife of W. H.) and my daughter T. for such estate and estates and in such shares parts and proportions manner and form as she my said wife shall at any time or times during her life by any deed or instrument in writing under her hand or seal duly executed and credibly attested, or by her last will and testament in writing, or any writing purporting to be her last will and testament to be by her signed sealed and published in wthe presence of three or more credible witnesses, and whether she shall be sole or married, direct limit give or appoint the same; and in default of such direction limitation gift or appointment by my said wife then unto and amongst all and every my said children R. S. M. and T. share and share alike as tenants in common and not as joint tenants, and to their respective heirs for ever: All the rest and residue of my goods and chattels money securities for money house- hold goods stock and all other my personal estate and efi^ects what- soever and wheresoever, and of what nature kind or quality soever the same may be, and not hereinbefore disposed of, after payment of my funeral expenses, I give and bequeath the same and every part thereof unto my said dear wife B. B. her executors administrators and assigns, to and for her and their own use and benefit abso- lutely ; and lastly I do hereby constitute ordain and appoint my said •wife B. B. sole executrix of this my last will and testament." As by the said will or the probate copy thereof when produced to this *365 BILLS TO PERPETUATE Death of the *honorable court will appear. And your oratrixes and orators further testator with- gJiov? unto TOur lordship that shortly after making the said will, and hu wiiS- oil or a^o"* tlie day of , , the saidR. B. departed ing R. B. his this life without revoking or making any alteration in the said will, heiratlawand being at the time of his death seised and possessed of the said customary freehold and copyhold estates as aforesaid, leaving R. B. of a defendant hereinafter mentioned his eldest son and heir at law, and heir according to the custom of the said manor. And your oratrixes and orators further show unto your lordship that shortly after the decease of the said testator your oratrix B. B. duly proved his said will in the proper Ecclesiastical Court, and entered into possession of the said freehold and copyhold hereditaments and premises devised to your oratrix B. B. for her life as aforesaid, and has ever since continued and now is in the enjoyment and re- ceipt of the rents and profits thereof. And the said R. B. having duly made and published his last will and testament as and in manner aforesaid, your -oratrix and orators well hoped that no at- tempt would have been made against the quiet and peaceable enjoy- ment of the premises devised by the said testator's will, according to the dispositions of the said will, as injustice and equity ought to have been the case. But now so it is may it please your lordship that the said R. B. your oratrix's son, and the heir at law and customary heir of the said testator, combining and confederating to and with divers persons to your oratrixes and orators at present unknown, whose names when discovered your oratrixes and orators pray they may be at liberty to insert as parties defendants, in order to defeat and defraud your oratrixes and orators of the benefit of the said testator's will and the premises thereby devised, sometimes Pretence that pretends that the said testator R. B. never made and published such wiliwasmade, -vy ill as aforesaid, or that if he did he was only tenant for life of the ta/'^wM o*niT ®^^*^ premises so devised to your oratrixes and orators, and there- tenant for life, fore had no power to dispose of the same, or that he was not of or was of un- sound and disposing mind memory and understanding at the time sound mind, ^f making his said last will as aforesaid, and therefore pretends that the devises and bequests in the said will are invalid, and -at other times the said confederate R. B. pretends that in case hi» or if of sound said father was of sound and disposing mind when he made pub- mmd, yet that ligjigd and declared his said will, yet that the witnesses thereto did not duly at- ^°^ respectively subscribe their names as witnesses thereto in his tested, and presence, and so the said will is void ; and that he the said R. B. thatthedefen- 3,3 heir at law and customary heir to his said father hath a good tied as^heir'to right and title to the premises by the said will devised, but he refuses the testator, to Contest the validity of the said will during the life-time of the subscribing witnesses thereto ; and he threatens that when the wit- nesses to the said will are dead he will contest the same and the va- lidity thereof, and set up his title as heir at law and customary heir to the said devised premises. Whereas your oratrixes and orators charge that the said testator was of sound and disposing mind me- mory and understanding at the time of making his said will, and^that the same was duly signed executed and attested in such manner as by law required for passing of real estates, but by means of such pre- THE TESTIMONY OE WITNESSES. 365 tences on the part of the said confederate your oratrixes and orators cannot *be quieted in the possession of the said devised premises [ *366 ] under and by virtue of the said will. All which pretences of the said confederate are contrary to equity and good conscience, and tend to injure and oppress your oratrixes and orators in the premises, In consideration whereof and forasmuch as your oratrixes and orators cannot examine their witnesses or have their testimony preserved in proof of the said will without the aid and assistance of this honor- able court. To THE END therefore that, &c.(43) And that your oratrixes and orators may have the witnesses to the Prayer. said will examined and their testimony recorded in this honorable court, in order to the perpetuity thereof, so that your oratrixes and orators may have the benefit thereof at any time when there shall be occasion. May it please, &c. [see form No. 1, p. 6, and note (o), ibid.'\ *OXXXII. Bill hy a devisee tenant/or life and his eldest son tenant in tail in remainder, to perpetuate the testimony of witnesses to the identity of the tenant for life as being the person described in the testator's will, and thereby directed to take the testator's sur- name. To, &c. Humbly complaining showeth unto your lordship your orators J. B. the elder of, &c. (lately called J. P.) and J. B. the younger of the same place esquire. That 0. P. late of, &c. deceased was in his life-time and at the Testator seis- time of his death, and also at the time of making his will hereafter ed of freehold stated, seised or entitled in fee-simple of or for some good and suffi- estates. cient estate of inheritance of or to divers freehold messuages lands tenements and hereditaments in England, and being so seised or en- titled the said 0. P. when of sound and disposing mind memory and understanding duly made and published his last will and testament His will. in writing bearing date, &c. (which was duly executed for devising and passing real estates,) and thereby gave and devised unto or for the benefit of your orator J. B. the elder by the name and descrip- tion of, &c. divers freehold messuages lands tenements and heredita- ments therein mentioned for his life, with remainder to his first and all and every other son and sons severally and successively in tail. And the said testator thereby directed that your said orator J. B. the elder should take and assume the surname of B. As in and by the said will or the probate thereof reference being had thereto when produced will more fully appear. That the said testator departed this life soon after making his Death of testa- said will without revoking or altering the same, leaving your orator tor, without J. B. the elder (who at that time resided in F. and was an infant of altering hia tender years) surviving him. And soon after his death your orator ^^ " (43) See note (42) antea, p. 363. *367 BILLS TO PERPETUATE *J. B. assumed and took upon himself the surname of _B. in compli- ance to the directions of the said will, and hath ever since used and still continues to use the same. PlaintifiF J. B. That upon the death of the said testator your orator J. B. the el- the elder then ^qj. became under and by virtue of his said will seised or entitled as crmfentitled tenant for life in possession of or to the said messuages lands tene- as tenant for ments and hereditaments so devised as aforesaid, and your orator J. life; B. the elder was accordingly soon after the-said testator 0. P.'s de- cease sent for from France ; and by reason of your said last-men- tioned orator's then tender age, great care was taken to have your said last-mentioned orator's person duly and properly identified, and divers good and effectual testimonials were brought over with him And upon at- from France to London ; and upon your said last-mentioned orator's taininghisage attaining the age of twenty-one years he was let into the possession years was"i°eT "^ ^^^ ^^^ said estates lands and hereditaments, and hath ever since into posses- continued and still is in the possession or receipt of the rents and sion of the es- profits thereof. p '?■ .fl. J T, That your orator J. B. the elder hath issue your orator J. B. the the dder's younger his eldest son, and as' such your orator J. B. the younger eldest son en- is Seised of Or entitled to all the said estates and hereditaments as titled as ten- tenant in tail expectant on the determination of your said orator ant in tail. j ^ ^-j^^ elder's estate for life therein ; and being so seised or en- titled as aforesaid, your orators well hoped that their right and title to the said estate and premises would not have been in any manner disputed as in justice and equity ought to have been the case. But NOW so IT IS may it please your lordship that R. A. of, &c. and J. his wife (late J. P. spinster) have lately set up a claim to the said estate lands and hereditaments in right of the said J. A. as the heir- Pretence that ess at law of the said testator, under a pretence that your orator J. ^' ^'/th ^^^^^ ^' ^^^ elder was not nor is the person meant and described in and son meant''h[' ^7 ^^e Said Will by such name and description as aforesaid, and to the will, and whom the said estates and hereditaments were devised for life in that the es- manner aforesaid, and that no such person as named and described ed to thcTtes-' ^^ ^^e Said will in manner aforesaid was or is in existence or can be tator's heir at found : and that therefore the said estates and hereditaments did on law, and that the said testator's death descend to his heir at law, and that the said j*^ A is'^°nti°'' "^" ■^' *® teiress at law of the said testator, became and now is seised tied thereto, thereof or entitled thereto. And the said E.. A. and J. A. his wife and that she having lately brought a writ of right in his majesty's Court of C. b°'^d'h^ ^^^' ^' ** Westminster to recover possession of the said estates. And brouo-htawrit your orators charge that there are divers aged persons now living of right. (particularly one A. D. widow) some of whom reside in F. or elsewhere Charge that abroad who can prove divers matters and things tending to show and aged persons pj-oye the identity of your said orator J. B. the elder ; and that he is the abroad^ho s^D^e identical person who was meant and was named and described can prove the in manner aforesaid in the said will. And the said R. A. and J. his identity of the -^[fQ allege that if such persons shall die or go abroad and your ora- the'eider as *'°''^ ^^ deprived of the benefit of their testimony, they will persist being the per- in and prosecute their said claim to the aforesaid estates or disturb son named in your orators or One of them in the possession thereof. And your the will. orators therefore humbly insist that they are entitled to, have their THE TESTIMONY OP WITNESSES. *368 *several witnesses who can prove any matters or things tending to show or prove that your orator J. B. the elder is the same identical person who was meant and described in manner aforesaid and to whom the said estates were devised in and by the said will examined in regard thereto, in perpetuam rei memoriam and to have their tes- timony preserved and perpetuated in this honorable court, and to have the full benefit of the testimony of such witnesses as against the said R. A. and J. his wife upon any trial or trials at law which may be had in regard to your orator's title to the said estates ; and to have one or more commission or commissions (if necessary) issued out of his honorable court for the examination of such of your ora- tors' said witnesses as may reside abroad. In consideration whereof and forasmuch as your orators are unable at present to have their said witnesses examined in chief on any trial at law respecting the matters aforesaid and may by death or otherwise be deprived of the benefit of their testimony, To the end therefore that, &c.(44) And that your orators may have all their several witnesses who prayer. can prove any matters or things tending to show or prove that your orator J. B. the elder is the same identical person who was meant and described in manner aforesaid, and to whom the said estates were devised in and by the said will, examined in regard thereto in perpetuam rei memoriam. And that their testimony may be pre- served and perpetuated in this honorable court so as that your ora- tors may respectively have the full benefit thereof as against the said R. A. and J. his wife upon any trial or trials at law which may be had in regard to your orators' aforesaid title to the said estates or any parts or part thereof. And that your orators may have one or more commission or commissions issued out of this .honorable court for the examination of such of their said witnesses as reside abroad. May it please, &c. {see form No. 1, p. 6, and note (o), ibid.'] CXXXIII. Bill hy a tenant in tail in remainder, to perpetuate the testimony/ of witnesses as to the marriage of his parents and his birth. Humbly complaining showeth unto your lordship your orator C. B. of, &c. an infant under the age of twenty-one years (that is to say) of the age of years or thereabouts, by A. B. of his next friend. That B. C. late of but now deceased, was at the time Testator seis- of making his will hereinafter mentioned and of his death seised of ed of freehold or well entitled in fee-simple to considerable real estates in the seve- estates. ral counties, of, &c. and did on or about, &c. duly make and pub- lish his last will and testament in writing which was executed and His will, attested as by law is required for the passing of real estates, and did thereby amongst other things give and devise, &c. And your orator further showeth unto your lordship that the said B. 0. departed this and death (44) See note (42,) antea, page 363. ^369 BILLS TO PERPETUATE without re- voking the same. The first ten- ant for life en- tered into pos- session and died without issue. So also the second tenant for life. Plaintiff's fa- ther now in possession as tenant for life, his marriage to his first wife by whom he had three daughters; his marriage with his second wife; plaintiff the onlj issue of such mar- riage and en- titled as ten- ant in tail in remainder. His title dis- puted by the three defend- ants. Pretence that plaintiff's pa- rents were not legally mar- or that plain- tiff is not the issue of such marriage and not entitled as tenant in tail. Charge the contrary, and the circum- stances at- lending the marriage; *life on or about without having altered or revoked his said will leaving the said W. J. S. E. B. S. and A. B. him surviving, and that upon his death the said W. J. S. entered into and uponthe possession of the said estates in the said counties of so devised as aforesaid, and by virtue of the said will became possessed of the said estates for the said term of years determinable by his death. And your orator further showeth unto your lordship that the said W. J. S. afterwards departed this life on or about without issue male, whereupon the said E. B. S. entered into and upon the possession of the said several estates so devised as aforesaid, and by virtue of the said will became possessed thereof for the like term of years determinable by his death ; and that the said E. B. S. also departed this life without issue male in or about , and there- upon the said A. B. who was next in remainder to the said estates under the said will entered into and upon the same, and became pos- sessed thereof for the like term of years determinable upon his death, and hath ever since been and now is in such possession and in the receipt of the rents and profits thereof. And your orator further showeth unto your lordship that the said A. B. intermarried on or about with X. Y. his first wife who departed this life on or about leaving no other issue than daughters ; and that the said A. B. on or about intermarried in the parish church of with M. Gr. of , his present wife, and that your orator who was born on is the only issue of that marriage, and under and by virtue of the said will of the saidB. C. now is and stands seised to him and the heirs of his body of the reversion or remainder of the said several estates expectant on the determination of the said term of years now vested as aforesaid in the said A. B. And your orator further showeth unto your lordship that I. R. Y. of was the eldest son of Z. Y. in the said will named, and that the said I. R. Y. departed this life on or about leaving R. M. Y. (one of the defendants hereinafter named) his eldest son, and A. Y. and B. Y. (also defend- ants hereinafter named) his other sons him surviving. And your orator well hoped that his title as tenant in tail in remainder of the said several estates expectant on the determination of the said term of years now vested in his said father the said A. B. would in no manner have been disputed. But now so it is may it please your lordship that the said R. M. Y. A. Y. and B. Y. in concert with each other pretend and insist that the said A. B. and M. G. were not legally married at the time of the birth of your orator, or that your orator was not the issue of such marriage, and that therefore your orator has no such title as tenant in tail as aforesaid. Whereas your orator charges the contrary thereof to be the truth, and that although the said A. B. did from motives of respect to the memory of his late wife for some time conceal his marriage with the said M. B. yet that the said A. B. and M. B. then M. Gr. spinster, were duly married by license on at the parish church of aforesaid by the Rev. R. F. of who was a particular friend of the said A. B. and M. Gr., and that such marriage ceremony was performed agreeably to the rites and ceremonies of the Church of England and in the presence of C. D. the curate of the said parish and o£ C. F. THE TESTIMONY OF WITNESSES. *370 *the clerk thereof and F. G. the sister of the said M. Gr. And your and the birth orator further charges that your orator was horn on — in the °f^^^ P^^'"^- parish of at a house in which your orator's said father and *' ' mother had then for some time resided, and in the presence of Dr. G. a physician of great eminence, and of P. W. who attended your orator as nurse, and of F. the wife of a respectable publican in the said parish who happened then to be in the house, and the said F. G. the sister of your orator's mother who had lived with her during her pregnancy was also in the house at the birth of your orator in an adjoining room ; and that your orator was privately bap- grst privately tized on by the said R. F., and was afterwards publicly bap- baptized and tized at the parish church of, &c. and the register of your orator's afterwards birth was made at the chapel in street on in the registry re"gis'try 'made kept therein for the use of protestant dissenters. But nevertheless atadissenter's the said R. M. Y. and B. Y. although they well know the several ctapel. facts aforesaid yet mean and intend to dispute the validity of your orator's said title to the said estates after the death of the said A. B. when the several witnesses necessary to establish the same are dead many of whom are now infirm and much advanced in years. To Many of the THE END therefore, &c. [see form VI. p. 5, and interrogate to the witnesses stating and charging parts.'\ And that the said defendants may answer the premises ; and that Prayer, your orator may be at liberty to examine his witnesses to the several matters and things hereinbefore mentioned, and particularly with re- spect to the intermarriage of the said A. B. and M. B. the father and mother of your orator and to the birth of your orator after such inter- marriage, so that the testimony of the said witnesses may be pre- served and perpetuated; and that your orator may be at liberty at all future occasions to read and make use of the same as he shall be advised. May it please, &c. [see form No. 1, p. 6, and note (o), ibid.'] J. L. Pray subpoena against R. M, T. A. T. and B. Y. CXXXIV. Bill to perpetuate the testimony of witnesses to the boundary of a moor, parcel of the plaintiff's manor. States that plaintiff now is and for some years hath been seised plaintiff seis- in fee-simple or of some other good estate of inheritance of and in ed of the ma- the manor of E.. with its rights members royalties commons wastes "°'' °^ ^' and other appurtenances thereunto belonging, situate in, &c. and also parcel thereof. of all that tenement or moor with all and singular its members and appurtenances whatsoever heretofore used occupied or enjoyed as parcel or member thereof with all ways wastes and advantages to the same belonging, commonly called or known by the name of H. M., and which is parcel or reputed to be parcel of the manor of R. and situate within the said parish of G. in the said county of , and *371 BILLS TO PERPETUATE *wliicli said manor and estates have been held and enjoyed hj plain- tiff and his ancestors or their tenants or under-tenants for a great number of jears,>-and which said tenement called H. M. and some Lease granted other part of the manor of R. was formerly in the possession of of the moor ^nd lately of , who severally and successively held the same as ancestOTs stm under-tenants to J. "W., who was and now is entitled thereto under subsisting. and by virtue of a lease from one of plaintiff's ancestors for a long term of years or some other estate or interest which is now subsist- ing. Sir p. B. seis- That Sir F. B. bart. one of the defendants hereinafter named is adjoini'ng^he^ Seised or entitled in fee-simple or for some other estate in possession moor. of or to a tenement and lands called or known by the name of P. th'e whole whereof lieth within the parish of C. within the said county of and adjoins to plaintiff's tenement called H. M. The hounda- That part of the boundary between plaintiff's said tenement or ries between mgor called H. M. and Sir F. B.'s said tenement called P. hath been the defend- from time to time whereof the memory of man is not to the contrary ant's lands, and now is as follow, that is to say : [^state the boundaries,'] and plaintiff hoped that on the determination of the present subsisting lease of the said tenement or moor called H. M. under which said J. W. is now entitled to and holds possession of such tenement or moor, the whole whereof according to such ancient boundary would have been delivered up to plaint^, so that plaintiff his heirs and assigns might at all times have enjoyed the same from thenceforth according to such ancient boundary. But now so it is, may it please your lordship that the said Sir F. B. and T. T. the tenant of the said tenement called P. the defendants hereinafter named, com- bining and confederating with divers persons unknown to plaintiff Pretence that [see form IV. p. S,] pretend that plaintiff h&th not and that neither plaintiff IS not ^g j^^j. g^jj_. ^f j^jg ancestors ever had any estate right or interest in entitled to the i • i /• xi i ■ i "' ^^ i ^^ nir manor of R. Or to the Said manor oi K. or the said tenement called H. M. or any but admitting part thereof; but at other times admitting the contrary, thej pretend th^dT*'a'^^t *^^* *^® ^^^^ ^^^^ ^^^ immemorial boundary hetyreen plaintiff ' s manor pretend that '^^ ^- ^^^ ^^^ tenement called H. M. and defendant's said tenement the bounda- called P. is not such as hereinbefore set forth, but is as follows, viz. &c. ries are other- CJiarge that plaintiff^ani his ancestors have for a long series of years before de*-^^ ^®^*^ ^^^ enjoyed the said manor of R. and the lands hereditaments scribed. and appurtenances thereto belonging, and particularly the said tene- Charge as to ment called H. M., and that the whole thereof is lying within the the enjoyment parish of Gr., and that the true real and immemorial boundary between rks of ae'^" ^^^ same and the said estate or tenement called P. was and is such plaintiff's es- ^^ is hereinbefore particularly described and no other; and that it is tates. and immemorially hath been constantly so reputed in the neighbor- hood, and that no part of the land lying on the south-west side of the bed of the ancient river and fence aforesaid belongs to the said Sir F. B. or his said tenement called P., and that the whole of the said tenement of P. lieth within the said parish of C, and so it is men- tioned in several deeds and writings relating thereto in the custody or power of the said Sir F. B. and the said Sir F. B. hath no right or interest in any lands belonging to the said tenement called P. within That the the Said parish of G., but the true and real boundary between the THE TESTIMONY OF WITNESSES. 371 said two tenements having been for several years last past neglected boundaries *to be discriminated by reason that all or most of the particulars of ^^'^^ ^e^°™° both such tenements have been for a long time held and occupied reason^of the by the same under-tenants, the said Sir F. B. and T. T. taking ad- same tenants vantage of such circumstances, now deny that the real boundary having held between the said tenements is as hereinbefore mentioned by plaintiff, ^ ^o^o ^' and insist that such boundary is such as is hereinbefore stated to be L "'■^ alleged by them, and consequently that a great quantity of land which is really part of plaintiff's said manor of R. and of the said tenement called H. M. is part of the said tenement called P., and that on the expiration or determination of the said lease now sub- sisting of or in the said tenement called H. M. possession shall be delivered unto plaintiff according to the boundary so pretended by them the said defendants. And the said Sir F. B. and T. T. his That the de- tenant, in collusion with J. ^^ . plaintiff ' s immediate tenant of the said ?°^t^\"*rjie tenement called H. M. and the under-tenant of said J. W. decline question, to do any acts or act to bring the question as to the real boundary between the said tenements for a legal determination, well knowing that many persons who are now living and much advanced in years That there are can prove that the boundary is really such as is hereinbefore men- many aged tioned and hoping that such persons may die before the expira- ^^"prOTe^he tion of the said lease of the said tenement called H. M. whereby boundaries. plaintiff would be deprived of the benefit of their testimony. All which actings, &c. [see form VI. p. 5, interrogating to the stating and charging parts.'] And that plaintiff may be at liberty to examine his witnesses to Prayer, the several matters and things hereinbefore mentioned, and particu- larly respecting the boundary between the said tenement called H. M. and the said tenement called P. ; And that plaintiff may be at liberty on all future occasions to read and make use of the same as he shall be advised. May it please, &c. [see form No, 1, p. 6, and note (o), ibid.'] CXXXV. Introductory statement, and prayer for a commission to examine witnesses abroad. And your orators further show unto your lordship that inasmuch as the witnesses to the several transactions aforesaid reside in the said city of H., your orators are unable to proceed to trial of the said action against the said E.. T. without a commission from this honor- able court for the examination of such witnesses. And that your orators may be at liberty to sue out one or more Prayer, commission or commissions for the examination of their witnesses at H. or elsewhere in parts beyond the seas touching the matters aforesaid ; and that your orators may have the benefit of the tes- timony of such witnesses respectively in the said action so com- menced by them as aforesaid, or in any other action to be com- "^tB BILLS FOE DISCOVERT. *menced by your orators on the said policy of assurance. May it please, &c. J.L. Another form of prayer. And that a commission may issue for the examination of witnesses residing in parts beyond the seas, as to the several matters aforesaid, with all proper and usual directions in that behalf ; and that your orators may be at liberty to read and make use of the depositions of such witnesses at law upon the trial of the said action so commenced as aforesaid. May it please, &c. SECT. II. As the object of a court of equity in compelling a discovery is either to enable itself or some other court to decide on matters in 'A court of chancery will compel a discovery in aid of a suit at law, where the leading circumstances rest in the knowledge of the defendant, whether the action be founded on contract or tort. SHnner v. Judaon, 8 Conn. 528 ; see also, Peckr. Ashley, 12 Met. 4'r8 ; Bennett v. WolfolJc, 15 Geo. 213 ; the bill must state that the discovery sought is necessary to the defence ; Howell v. Aslimore, 1 Stockt. (N. J.) 82 ; Turner V. Dickerson, Id. 140 ; Bell v. Pomeroy, 4 McLean, 57 ; but if the plaintiff seeks to change the forum of litigation, and prays for relief as well as discovery, his bill must show a cause of manifest propriety in the court to retain the case. Brown v. Bdsall, 1 Stockt. (N. J.) 256. A defendant in a bill in equity, is not bound to answer for the discovery of pro- perty to a later date than that of the filing of the bill. A supplemental bill should be filed for such discovery. Gregory t. Valentine, 4 Edw. Ch. 282 ; Hope v. Brickenhoff, 4 Edw. Ch. 348. Nor can he plead payment of a debt before the commencement of the action at law in bar of the discovery sought by the complain- ant's bill. Sperry v. Miller, 2 Barb. Ch. R. 632. Nor will a bill of discovery lie where the same testimony may be had at law, as that sought by the bill. Hurd v. Duchess County Bank, 1 Morris, 291 ; nor where it would render the defendant liable to an indictment, or subject him to a penalty or forfeiture ; Taylor v. Brum, 2 Barb. Ch. E. 301 ; Adams v. Porter, 1 Cush. lYO ; nor will a bill of discovery lie iu aid of a defendant at law to compel the plaintiff at law to furnish a more full bill of par- ticulars which the court of law has refused to order. Niewry v. O'Hara, 1 Barb. 484. The officers of a corporation may be made parties to a bill of discovery, for the purpose of obtaining a knowledge of facts which cannot be ascertained by the an- swer of the corporation under the corporate seal, and without oath. Vermilyear v. Fulton Bank, 1 Paige, C. R. 37 ; Many v. Beekman Iron Company, 9 Paige, C. R. 188. And trustees can be compelled to account for the trust funds in their hands when the accounts are complicated, and from the facts alleged in the bill it affirmatively appears that a discovery from the defendant is necessary to obtain a decree ; Keaton V. Greenwood, 8 Geo. 97 ; and a court of chancery will entertain a bill filed for the discovery of assets, which an administrator has failed to return in his inventory; Wilson V. Crook, 17 Ala. 59; Hunley v. Hunley, 15 Id. 91 ; but infants cannot be made parties for discovery merely, where they have no interest, as they never answer on their oaths. Leggett v. Sellon, 3 Paige, C. R. 84. A plaintiff is entitled, on motion, to have produced for inspection, and to be used in aid of his suit, documents in possession of the defen-dant, or his agents, which are BILLS FOR DISCOVERT. 373 dispute between the parties, the discovery sought must be material either to the relief prayed by the bill, or to some other suit actually referred to in the answer without being set forth at large, and are material to the support of the plaintiff's rights, but not for papers to which no allusion is made in the answer. Robbins v. Davies, 1 Blatch. Ct. Ct. 238 ; but a person cannot be allowed to call for the title papers of another, under whom he sets up no title or interest in him- self, except that he may possibly at some time find it convenient to use them in an action at law as evidence against those having them in possession, upon a collateral matter. Baxter v. Farmer, 1 Ired. Eq. 239. And where a bill is filed for discovery and relief, upon a lost contract, it seems that the defendant will be held to greater strictness in his answer as to the contents of the lost instrument, than would be re- quired if it could be produced. Crary v. Smith, 2 Comst. 60. A bill for discovery and relief may be good, as to the discovery, without an afiB davit ; Laight v. Morgan, 2 C. C. E. 344 ; and to a bill alleging the loss of an instrument, and seeking a discovery merely, an affidavit is not necessary; Laight v. Morgan, 1 Johns. 0. R. 429 ; and where a bill for discovery and relief on the ground of the loss of title deeds, alleged the loss, it was held, that an affidavit by the plaintiff, that the deeds were not in his power or custody, was unnecessary. Le Ray v. Servis, 1 C. C. B. in. It is unnecessary also, in a simple bill of discovery, to allege that the complainant is unable to prove his case at law without the aid of the discovery sought. Atlantic Insurance Company v. Luna, 1 Sandf. Ch. R. 91 ; see also Duval V. Ross, 2 Munf. 290; but in Perrine v. Carlisle, 19 Ala. 686, where a bill was filed for relief, and the jurisdiction of the court was sought to be maintained on the ground of discovery alone, it was held that the bill should allege that the complainant is unable to prove the fact upon which he relies for relief otherwise than by the answer of the defendant. Where the defendant seeks by petition, in the nature of an injunc- tion to a suit at law, a discovery of matters of defence, such petition must be pre- sented with as reasonable diligence as is required in procuring the testimony of wit- nesses, and must aver that material facts relied upon are not otherwise susceptible of proof. Hill V. Cawthorn, 15 Ark. 29. And where a defendant at law desires a discovery ftom the plaintiff, he should file his bill, or exhibit interrogatories, whilst the cause is at issue. If, without doing so, he take the chance of success in a trial ' at law, he must abide its judgment, unless some other special ground of relief is shown, authorizing a resort to a court of equity. Powell v. Stewart, 17 Ala. 719. Where a bill seeks special and general relief, and relief is the principal object, and discovery is sought merely as incidental thereto, a demurrer will lie to the whole bill, if the plaintiff shows no title to the-relief sought. Pool v. Lloyd, 5 Met. 525. And a court of chancery will not aid a plea of usury at law, by compelling a dis- covery, unless the defendant in his bill tender the sum really due for principal and la^wful interest. Tapper v. Powell, 1 Johns. 0. R. 439 ; Livingston v. Harris, 11 Wend. 329 ; Brockway v. Copp, 3 Paige, C. R. 539. A bill for discovery in aid of a defence at law, must state the facts as to which a discovery is required; and it is not suflBcient to allege that the matters as to which a discovery is sought, are material to the defence. Lane v. Slebbins, 9 Paige, C. R. 622. It is sufficient for the plaintiff to show by his bill that the discovery is ma- terial without .showing it to be indispensable ; March v. Davison, 9 Paige, C. R. 580 ; Leggett v. Postley, 2 Id. 599 ; and where the bill is for discovery, and to stay proceed- ings in another court, it must allege that the facts cannot be obtained in the suit without such discovery. Seymour v. Seymour, 4 Johns. C. R. 409 ; see also Mcln- lyre v. Mancius, 3 Id. 45 ; Conant v. Delafield, 3 Edw. Ch. 201 ; Newkerk v. Willett, 2 C. C. E. 296 ; Clapp v. Sheppard, 23 Pick. 228 ; Norwich and Worcester Railroad Com- pany V. Storey, 17 Conn. 364. A plaintiff cannot, by exception to an answer, call for a discovery based upon new matter set up in the answer by way of defence ; Stafford v. Brown, 4 Paige, 0. R. 88 ; and on the trial of a suit at law, the defendant may introduce evidence in addition to an answer to a bill of discovery in aid of his defence. Williams v. Wann, 8 Black. 477. A party may sustain a bill for discovery, not only where he is destitute of other evidence to establish his case, but also to aid or render unnecessary such evi- dence. Stacy V. Pearson, 3 Rich. Eq. 148. The joinder of defendants ^n separate actions in a bill of discovery to obtain evidence, is a defect in substance, and fatal to such bill ; Broadbent v. Slate, 1 Md. 416'^ McDougal v. Maddox, 17 Geo. 52 ; and the court may compel an attoruey bringing a great number of suits for different plaintiffs on the same facts, and against one defendant, to disclose the name and re- sidence of the plaintiffs, when required by the defendant's protection. Ninety-nine plaintiffs v. Vanderbilt, 4 Duer, (N. Y.) 632. 373 BILLS FOR DISCOVERY. instituted or capable of being instituted. If therefore the plaintiff in a bill for discovery does not show by his bill a title to sue the de- fendant in some other court,(l) or that he is actually involved in liti- gation with the defendant or liable to be so, and does not also show that the discovery which he prays is material to enable him to sup- port or defend a suit, he shows no title to the discovery, and conse- quently a demurrer will hold. (2) Where a plaintiff filed a bill for a discovery merely, to support an action which he alleged by his bill he intended to commence in a court of common law,(3) although by this allegation he brought his case within the jurisdiction of a court of equity to compel a dis- covery, yet the court being of opinion that the case stated by the [ *874 ] bill was not such as would support an action, a demurrer was *al- lowed ;(4) for unless the plaintiff had a title to recover in an action at law supposing his case to be true, he had no title to the assistance of a court of equity to obtain from the confession of the defendant evidence of the truth of the case. And upon a bill filed by a cre- ditor alleging that he had obtained judgment against his debtor, and that the defendant in order to deprive him of the benefit of his judgment had got into his hands goods of the debtor under pretence of a debt due to himself, and praying a discovery of the goods, the defendant demurred because the plaintiff had not alleged that he had sued out execution, and because until he had so done the goods were not bound by the judgment, and consequently the plaintiff had no title to the discovery ; and the demurrer was allowed.(5) Unless a defendant has some interest in the subject he may be examined as a witness, and therefore cannot in general be compelled to answer a bill for discovery ;(6) for such a bill can only be to gain evidence, and the answer of the defendant cannot be read against any other person, not even against another defendant to the same bill.(7) But if the bill states that the defendant has or claims an interest, a demurrer which admits the bill to be true, of course will not hold, though the defendant has no interest, and he can then only avoid answering the bill by plea or disclaimer. (8) In general where the title of the defendant is not in priority but inconsistent with the title made by the plaintiff, the defendant is not bound to discover the evidence of the title under which he claims. (9) (1) Wallis T. The Duke of Portland, 3 Ves. 494, 503, 2d edit. ; The Corporation of London v. Levy, 8 Ves. 398 ; Lord Kensington v. Mansell, 13 Ves. 240 ; and see Wright T. Plumtre, 3 Madd. 481. (2) See Ld. Red. Tr. PI. 191, 4th edit. ; Askam v. Thompson, 4 Pri. 330 ; Cardale v. Walkins, 5 Madd. 18. (3) It is not necessary that an action should be brought previously to filing a bill for discovery in support of an action ; see Moodalay v. Morton and the East India Company, 1 Bro. Ch. Ca. 468 ; S. 0. 2 Dick. 34. (4) Debigge y. Lord Howe, cited in Ld. Red. Tr. PI. 187 ; 3 Bro. Oh. Ca. 155 ; Bea. EI. PI. 2'76. f5) Angell v. Draper, 1 Vern. 399 ; and see Shirley v. Watts, 3 Atk. 200. (6) How V. Best, 5 Madd. 19; Dineley v. Dineley, 2 Atk. 394; Fenton v. Hughes, 1 Ves. 287 ; Ld. Red. Tr. PI. p. 188 ; where the exceptions to this rule are stated; see also note (11), 1 Ves. jun. 293 ; 14 Ves.' 252 ; Wych y. Meal, 3 P. Wms. 310, and the notes, ib., 6th edit. (1) Morse v. Royal, 12 Ves. 355. 2 Vern. 380. (8) Plummer v. May, 1 Ves. sen. 426. (9) See Ld. Red. Tr. PI. 191 ; Ivy v. Kekewick, 2 Ves. jun. eYQ. And see generally in what cases a bill for discovery will lie, 1 Madd. Ch. Pr. 198, et seq. BILLS FOR DISCOVERY. 874 A bill for discovery will not lie after .twenty years adverse posses- sion not accounted for by some disability ; although an ejectment might in a particular case be brought by the plaintiff.(lO) Where a party comes only for the discovery of a deed, he need not make oath of the loss of it, as he must do when he applies also for relief. (11) The defendant in a bill for discovery is entitled to the costs of discovery immediately upon putting in a full answer,(12) and also to all costs occasioned by resisting motions made in the cause by the plaintiff.(13) *There is no distinction as to the time for exceptiag between bills [ *375 ] for discovery and bills for relief.(14) Where a bill prays a discovery and a commission to examine wit- nesses, the defendant is not entitled to move for his costs till the re- turn of the commission, and even then the defendant will not have his costs if he examines witnesses in chief, instead of confining him- self to a cross-examination. (15) If after the defendant has answered the suit becomes abated, it cannot be revived, even for costs. (16j their credi- tors. CXXXVI. Bill for discovery in aid of an action at law ; the de- fendant having pleaded a set-off, and inserted items in the par- ticular of such set-off which ought not to have been charged against the plaintiffs, being trustees under a deed of trust exe- cuted hy two partners in trade for the benefit of their creditors. Humbly complaining show unto your lordship your orators P. N. of, &c. J. A, of, &c. and J. R. of, &c. That by indenture of assign- Deed of as- ment bearing date , and made between J. Gr. and J. W. therein ^Jfted by'j!^G. described of, &c. of the first part, the several persons who had and J. w. for thereunto set their hands and affixed their seals, creditors of the the benefit of said J. Gr. and J. W. as copartners as aforesaid, or of the said J. G. on his own separate account, of the second part, and your orators of the third part ; they the said J. G. and J. W. (amongst other things) bargained, &c. \setting out that part showing the assignment - to the plaintiffs and particularly the clause which gives them power, to sue.'] As in and by, &c. And your orators further show unto A debt of £— your lordship that at the time of the execution of the said indenture, ^i^e to the as- (10) Marquis Cholmondeley v. Lord Clinton, Turn. Rep. 107. (11) See Ld. Red. Tr. PI. p. 54, 124, 4th edit.; 1 Madd. Ch. Pr. 197, and note («), ibid. ; and see Booh v. Dorman, 1 Sim. & Stu. 227; and note (2), antea, p. 169. (12) See Gartwright r. Hateley, 1 Ves. jun. 293, where the defendant was allowed costs as between attorney and client; Coventry v. Bentley, 3 Mer. 677. (13) Noble V. Garland, 1 Madd. Rep. 344, on motion for a reference to the master to tax the defendant's costs. (14) Bea. on Costs, 29, 30 ; Baring v. Prinsep, 1 Madd. Rep. 526, overruling Stewart T. Semple, 5 Ves. 86 ; the time allowed for filing exceptions nunc pro tunc is two terms and the following vacation, Thomas T. Lleimllyn, 6 Ves. 823 ; DyerY. Dyer, 1 Mer. 1. (15) Anon., 8 Ves. 89 ; Banbury v. , 9 Ves. 103. (16) Dodson v. Juda, 10 Ves. 31, and see note (37), ibid. 375 BILLS FOR DISCOVERT. signers from there was justly due and owing to the said J. G. and J. W. on their the defendant, partnership account from R. K. of, &c. (the defendant hereinafter named) the sum of £i , being the balance of an account between the said J. Gr. and J. W., the particulars whereof are set forth in the Applications schedule hereto. And your orators further show that they have re- made to the peatedly applied to the said R. K. to pay to them as such trustees th^^°l£dntiff3 ^^ aforesaid the said sum of £ , with which just and reasonable as trustees for requests your orators well hoped the said defendant would have com- payment. plied, as in justice and equity he ought to have done. But now so Refusal to IT IS, &c. {see form IV. p. 5,] he hath absolutely refused so to do ; pay- and your orators have therefore been compelled to commence an An action action in the names of the said J. Gr. and J. W. against the said de- bv™he^piain- fe^dant to compel the payment of the s»id balance ; and your orators tiffs against charge that the said defendant hath *pleaded a set-oflF in the said the defendant action, and hath delivered a particular of such set-off, which as far ment°oMhe^' *^ ^^ extends to the date of the said assignment to your orators, cor- amount. responds in substance with the creditor side of the account set forth r *3761 ^° t^® ^^^^ schedule hereto ; but the said defendant hath added A set-off thereto three articles for copper delivered in the year , for pleaded. which he claims credit in the said action. Whereas your orators Charge that charge that the said defendant at or about the time of the execution the defendant gf jjig g^icj assignment to your orators was apprized thereof, or had been' apprized some reason to know believe or suspect and did know believe or sus- of the assign- pect that the said J. Gr. and J. W. had made such assignment, or ment laade to gome assignment of their copartnership property to your orators or t e p ainti s. ^^ gome trustees for the benefit of their creditors. And your orators further charge that the said copper was delivered at , which had belonged to the said J. Gr. and J. W. and had been comprised in the said assignment to your orators, and had been afterwards sold by That the de- your orators to the said J. G. ; and the said J. Gr. applied to the anteed the'^'^' ^^^^ defendant to purchase the said copper on his the said defend- paymentofthe ant's credit, or to guarantee the payment for the said copper to the price of cer- person from whom it was bought, by reason that the circumstance ^pper*sohit°o °^ ^^^ assignment to your orators being known, the said J. G. could one of the in- not obtain credit for the said copper in his own name alone ; and solvents, the said defendant for that reason lent his credit to the said J. G. pereonal*re-" ^^"^ ^^^ purchase of the said copper or guaranteed the payment there- sponsibiUty. of? trusting to the personal responsibility of the said J. G. And That the de- 7°'^'" orators further charge that the said defendant hath also added fendant also to his said particular of set-off a sum of £ for a year and a half's f ect ofwr'es ^^^^^ ^°'" "'^^ "^^ ^- ^- '■> Whereas your orators charge that the said paid to one J. defendant hath no just right to any such demand against your B. c. orators as trustees under the said assignment ; and the said defendant That he has no refuses to Set forth how he makes out such his claim, and when and right to such up to what time he computes the said wages. And your orators ThTtThe charge that they are advised that they cannot safely proceed in the plaintiffs can- ^^^^ action SO commenced by them as aforesaid in the names of the not proceed in said J. G. and J. W., without a discovery of the circumstances here- *'^-th°'t°"d- ^"^^f°^® stated from the said defendant. To the end therefore ToVery from'^" t^^*' ^°- [Proceed as in form VI. p. 5, and interrogate to the the defendant. Stating and charging parts."] BILLS FOR DISCOVERY. 376 And that the said defendant may set forth how he makes out such Interrogato- his said claim, and when and up to what time he computes the said ""^ ^°^ ^ '^^^- wages, and whether your orators can safely proceed in the said the^defend" action so commenced by them as aforesaid in the names of the said ant's claims. J. G. and J. W. without a discovery of the circumstances herein- before stated from the said defendant. And that the said defendant may make a full and true discovery Prayer. of all and every the matters aforesaid. May it please, &c. [^seeform JVo. 1, p. 6, and note (o), ibid. J. L. Prai/ suipoena against M. K. **CXXXVII. Bill for discovery in aid of a defence to an action [ *377 ] hr ought for the recovery of a balance of an account claimed by the plaintiff at law to be due to him as agent, in having assisted the plaintiffs in equity, who were the solicitors employed in prosecut- ing an election petition in 'parliament.iYl) The bill also prays for an injunction to restrain proceedings at law in the mean time. In the Exchequer. To, &c. Humbly complaining show unto your honors your orators J. A. of , T. B. of , and H. A. also of j debtors, &c. [see form No. 2, p. 2.] That your orators were in the year em- Plaintiffs em- ployed as solicitors in supporting the petition of certain freeholders pjoyed as soli- in D. claiming to vote in the election of members of parliament for portingthepe- the county of C. to> the House of Commons against the return to tition of cer- parliament of F. E. esq. as a member for the said county of C. ; t^i" fieehold- and that Messrs. A., and Y. of were employed by your orators Houseof Com- as their parliamentary agents in preparing and prosecuting such pe- mons against tition; and upon a dissolution of partnership which took place be- the return of a tween the said A. and Y., your orators employed Messrs. E. and '°^™''^''' the said Y. in the prosecution of the said petition, until the ter- pfgyg^ as no- mination of all matters relative thereto. And your orators further liamentary show that for the purpose of defraying the expenses of preparing agents. and presenting and prosecuting the said petition, subscriptions Subscriptions were made and raised by divers persons freeholders of D. aforesaid, ftavLgiheex- to a considerable amount, but such subscriptions afterwards ap- penses attend- peared and actually were very inadequate to defray the expenses ing tlie said attending the said petition. And your orators further show unto P^*'*'""' ^'^t your honors that 0. 0. now of the defendant hereinafter named ed very inade- (but who in the said year practised as an attorney and soli- quate. (17) In Wallis v. Duke of Portland, 3 Yes. 164, a demurrer was allowed to a bill for discovery whether the plaintiffs were not employed by the defendants as solicitors to present and prosecute a petition complaining of a return of a member of parlia- ment, principally on the ground that the case stated amounted to maintenance at common law. 29 b I I BILLS FOR DISCOVERT. The defendaDt citor in ,) having heard of your orators being engaged in sup- having heard porting the said petition, and having been acquainted with your and befng'ac- orator J. A. for many years, did upon seeing your orator J. A. acci- quainted with dentally at the Grecian Coffee-house in the month of May^ , piaintifif J. A. guter into conversation with your orator J. A. upon the subject of conversation ^^^ Said petition, and the said 0. 0. then proposed to your said to assist in the orator to assist in the management of the said petition, stating that management he was anxious to get into business of that sort, having a liking for of the petition, j^^ ^^ ^^^^ ^^^.^^ ^^ ^j^^^ ^^ ^j^^ jjj^g purport meaning or effect; Sform^dThat ^^^ JO^r orator J. A. thereupon told the said 0. 0. that the said the subscrip- petition was supported by subscription amongst the freeholders of D., tions would and that your said orator was afraid that it would not be sufficient probably be *jj^ amount to defray the fees of counsel and the ordinary expenses [ *378 ] of the House of Commons on such occasions and the money out of very inade- pocket ; and that your orators being respectively freeholders had vo- tot'thepfain- lunteered their services in support of the petition, and with a view tiffs had vo- to try the question of right on the part of the freeholders of D., and lunteered consequently that there would (as your orator J. A. was afraid) be their services. ^^ ^^^^ ^^ ^^^ ^^^ ^-^^ assistance of the said 0. 0. And your orator tinctly ttated J- ^- further showeth that the said 0. 0. then distinctly and in most that he did not unequivocal terms stated that he did not wish to be paid for the as- wish to be gistance he might afford in the event of the subscription being inade- services in the I'^^te, and consequently would not make any charge, but that in any event afore- event he should consider himself paid by a compliment of ^20, or said, but the Said 0. 0. used words to that or the like purport or effect. And would be con- y^^j. Qj-ators further show that upon the express understanding that „, , , . " ' the said 0. 0. should not make any charge for his assistance, and That his ser- ,,.,,. , -ii j_ r ili_ vices were ac- that his only desire was to be repaid the money out oi pocket, the cepted upon said 0. 0. assisted your orators and the several other persons engaged the under- j,^ ^j^e said petition in prosecuting the same, and pending the prose- he was only to cuting the said petition, your orator J. A. paid to the said 0. 0. the be repaid mo- suni of £50 to enable him to defray the current expenses ; and since ney oat of the decision of the said petition your orator J. A. did upon the appli- ^°^ ^ '., ,. cation of the said 0. 0. accept a draft for ,£36 in order as the said 0. to defray the 0. then alleged, to reimburse him the money out of pocket. And your currentexpen- orators further show unto your honors that the said draft was so ac- ^®^ ' cepted, and was afterwards duly paid by your orator J. A. upon the And since the understanding and belief that the same was a final settlement of all petition £36 claims on the part of the said 0. 0. in respect of or in any wise relat- more, which ing to the Said petition, and that the said sum of £36 the amount was paid by thereof had been actually expended by the said 0. 0. out of his own up^on the lin- proper moneys. And your orators further show that the said 0. 0. has derstanding never until in or about the month of last pretended or alleged that it was a that any further or other sum of money was due to him for his personal m'ent^of aU assistance relative to the said petition. And your orators hoped that claims on the no proceedings would have been taken by the said 0. 0. against them part of the to enforce any pretended claims on his part the said 0. 0. well know- defendant, jj^g that he has not any just claims and ought not in justice and equity for any™!™ her *° ™ake any further claims upon your orators for remuneration for his sum until assistance with regard to the said petition. But now SO it is, &c. lately. [see form IV. p. 5,] he the said 0. 0. hath lately commenced an BILLS FOE DISCOVERY. 378 action against your orators in his Majesty's Court of K. B. at West- That the de- minster for the recovery of a pretended balance of ^500 alleged to be Jeidant has due to him in his character of an attorney and solicitor or agent in action^for"the respect of the said petition : and he has lately delivered to your orators balance of his a bill of costs relating solely to the said petition, and amounting alto- account; gether to the sum of £600, thereby charging large sums of money for ^"^, ^^^ '"te^y his advice and attendances and otherwise; and the said confederate at bui o7costr- times pretends that no such conversation as hereinbefore stated ever n„„,„„j- 4-11 T_ T* 11-1 • -I PI rretenaing tooK place between your orator J. A. and him the said confederate, that no con- and that he never promised or agreed to or with your orators or veisation as any or either of them not to make any charges for his assistance in t^o^o^'^^iff'^'^ the event of the aforesaid subscriptions being inadequate, other than That he never *such moneys as he should actually pay out of pocket; and the said r *3'j-9 confederate further pretends that your orators were frequently, and p,.omised not previously to the said month of May , in the habit of employing to charge for him as their agent in matters of business, and that your orators have bis assistance frequently both by letter and otherwise promised and agreed to pay }'^g'^g^,^g„"j' °^ the said pretended balance of ,£500, so as aforesaid claimed to be due tions being in- to him upon his said bill of costs ; and in particular the said confede- adequate; rate by his attorneys Messrs. pretends that your orator J. A. That the did within the six weeks previously to the 19th day of February ^Jo"^*^*^;^™" , make a special promise to pay the same ; and the said confede- frequently as rate further pretends that the said sum of £36 was so as aforesaid their agent; paid by your orator J. A. as part and on account of his said bill of That they pro- costs ; and that the subscriptions raised to defray the expenses of ^^^u 1° '"^•^ f the said petition were much more than sufficient to pay the whole his account- amount thereof, and that he the said confederate is well entitled to That plaintitf recover the amount of the said balance claimed by him of and against ^- A. pre- your orators. Whereas your orators charge the contrary of all the ^'""^'J *» ^ aforesaid several pretences to be the truth. And your orators fur- specially pro- ther charge that such conversation as hereinbefore in that behalf mised to pay stated did take place between your orator J. A. and the said 0. 0. ^^'^ ®''™'^ '< in the said month of May , and that the said confederate did '^'^^' *.^ ^^^• then and there and afterwards at various interviews as well with your ^[^ ^^ ^c- orator J. A. as with your orators T. B. and H. A. state that he did count; not wish or expect to be paid for the assistance he should afford, in That the sub- the event of the aforesaid subscriptions being inadequate, and that s^nptions consequently he should not make any charges otherwise than for the to pay the ex- moneys which he actually expended, or used words to that or the like penses of the purport meaning and effect. And your orators further charge that Petition; it was upon this express understanding between your orators and the And that he is said 0. 0., that the said 0. 0. acted in the carrying on and prose- cover? *° '^^' cuting the said petition. And your orators further charge that they charge the did not nor did any or either of them ever previously to the said contrary of the month of May , employ the said 0. 0. as their agent in mat- aforesaid pre- ters of business, and that your orators never intended or would in ^^""^^ ' any wise have accepted the assistance of the said 0. 0. in prosecut- conversation ing the said petition, had not the said 0. 0. gratuitously volunteered did take place his services for that purpose, more particularly as they had at that as before stat- time employed regular parliamentary agents who acted as such for !, ' your orators as aforesaid. And your orators further charge that fendalt^dfdat 379 BILLS FOR DISCOVEBY. various inter- they did not nor did any or either of them either verbally or by let- ^h^h ^?^^ ^^^ °^ otherwise ever promise or agree to pay the said 0. 0. for his pro- expect to be fessional assistance in prosecuting the said petition or relative thereto, paid for his as- or to pay to him the said pretended balance of ,£500 so as aforesaid sistance in tlie claimed to be due to him upon his said bill of costs or any part thereof. subscriptions -^^^ ^^ particular your orator J. A. charges that he did not -within being inade- the six weeks previously to the 19th day of February , or at quate, except any time previously or subsequently thereto, make any promise to the moneys ^]^ same. And your orators further charge that the said con- paid by him fT-' •' =>. , , outofpoclset; lederate did on or about the day oi write and send to That it was your orator J. A. a letter in the words and figures or to the purport upon such uD- or effect following (that is to say ;) [^stating the same verbatim.^ And derstanding y^j^j, ^j-ators ^further charge that it is apparent from the said letter r *^Rr> 1 ' '^^^ ^' ^^^ *'™® °^ writing the same the said 0. 0. did not mean or L -I intend to set up any demand against your orators for his professional eve employ- assistance relative to the said petition. And your orators further ed by the charge that the words " at least this sum of £S2 in cash" were meant plaintiffs pre- and intended by the said 0. 0. to refer to the words " and upwards" viously there- ^^ ^j^g foregoing part of the letter mentioned, and to some small items That they '^°*' du™6rated therein, and the same were so understood by your would not orators; and as a confirmation thereof, the said 0. 0. in a few days have accepted afterwards applied to your orator J. A. to accept the draft for ,£36 ■f h^T^d'"''^t ^^'"Biiibefore mentioned, which your orator accordingly accepted and gratuitously ^''^^J honored. And your orators further charge that the said 0. 0. volunteered did not then or at any time afterwards until shortly before commenc- his services ; j^g ^jjg gg^\^ action, intimate that any further sum of money was due That they ^^ j^jjj^ ^^^^ ^■j^^^ ^jjg gg^j^ g^^j ^f £^q ^^^ jjj f^^^^ fully equal to if verbally or by ^o*- more than the Said 0. 0. had actually expended out of pocket, letter promis- or was under the circumstances aforesaid justly entitled to, which ed to pay for ^jjg g.^[^ confederate well knows to be the truth. And your orators or to pay the ' further charge that from the whole tenor of the conversation that balance of his passed between your orator J. A. and the said 0. 0. at such last- account ; mentioned interview, your orator J. A. was led to believe and did And that actually believe that the said sum of £36 was the only demand which neveVpromis- ''^® ^*^*^ ^' ^* ^^^ '^P°'^ 7°^^ orators or any or either of them rela- ed to pay the tive to the matters aforesaid, or any of them, or upon any other ac- same. count. And your orators further charge that the said sum of £36 Charge as to a -^as SO as aforesaid paid by your orator J. A. and was understood by t'he^efend- ^^^ intended by and between him and the said 0. 0. to have been ant to him; paid in full Satisfaction and discharge of all claims on the part of That it is ap- the Said 0. 0. in respect of or in any ways relating to the preparing parent there- and prosecuting the said petition. And your orators further charge drfendant di^d ^^^^ ^^® aforesaid subscriptions proved very inadequate to defray not intend to the expenses of preparing and prosecuting the said petition, and charge for his that your orators are now on account thereof to the amount of £300 assistance ; ^^^ upwards out of pocket which they have no means of getting repaid afterwar°d3 t^e ^° t^^e™; and that the said confederate ought not under the circum- draft for £36 Stances herein stated, to proceed against your orators for the recovery was accepted; of the said balance or sum of £500 alleged to be due to him in re- Tbat no inti- spect of his pretended bill of costs. But nevertheless under such or mation o any ^^g |j]^g pj.g|;gjiggg ^^ aforesaid, the said 0. 0. threatens and intends BILLS FOR DISCOVERT. 880 to proceed in the said action commenced by him against your ora- further de- tors, and to recover judgment and to take out execution against your ^,^°^ '"'^^ orators for the recovery of the said balance, together with costs of ^^tX "That suit. And your orators are advised that they cannot under the cir- the £36 was cumstances safely proceed in defending the said action Tvithout hav- *'^^ '"^i' ing such discovery as aforesaid, which your orators charge that the ^™Qeyg °x- ^ said defendant ought to make, and in the meantime to be restrained pended by the from proceeding in the said action by the order and injunction of this defendant, honorable court, In consideration whereof and for as much as ^"["^ 'Jli' ^}^. ',.,., . T plamtm J. A. your orators are remediless in the premises at the common law, and y^^g led to be- cannot have a complete discovery of the matters aforesaid, without lieve and fully the aid of a court of equity. To the end therefore that, &c. understood '*'\_Proceed as in form VI. p. 5, and interrogate to the stating and [ *381 ] charging parts.J ^^'^^ *® ^^^^ And that the said 0. 0. may make a full disclosure and discovery demandwhich of the several matters aforesaid ; and may in the meantime be re- the defendant strained by the injunction of this honorable court from proceeding '^j"^ "PS^ the in the said action already commenced by him against your orators, mf'? ', ^' and from commencing any other proceedings at law against your genptions orators, or any or either of them touching the matters aforesaid, proved very May it please, &c. [see form Wo. 1, p. Q, and note (o), ibid., and form inadequate; m. 4, p. 6.1 Tliat the T, 7 . J plaintiffs are l-'ray subpoena to answer, and £3gQ ^^j ^j injunction against 0. 0. pocket; And that the defendant ought not to proceed in his action. That the plaintiffs are advised that they cannot defend the action without a discovery from the defendant. Prayer. *CXXXVIII. Bill for discovery in aid of a defence to an action brought by the defendant in equity for the recovery of the value of a shipment of dollars alleged to have been made by him on hoard the ship of which the plaintiff was commander, the signature of the plaintiff's name to the bill of lading having been forged. — The bill also prays for an injunction to restrain all proceedings in the action, and all other proceedings at law, and for a commission to examine witnesses abroad.{18) In the Exchequer. To, &c. Humbly complaining showeth unto your honors your orator T. S. *of, &c. debtor, &c. [see form Wo. 2, p. 2.] That in and before the month Plaintiff, com- of- October your orator was commandant of his Majesty's ship mander of a or frigate called the H. which was then stationed or cruizing at or off ^"g^*^! *°°^ ^ ° on board a (18) A commission to examine witnesses abroad may be obtained before answer, if the time for answering has expired; Noble v. Garland, Coop. Rep. 222 : and see Cheminant v. De La Cour, X Madd. Rep. 208. If the common injunction has been obtained for want of an answer, it will on motion be extended to stay trial ; Bowden V. Hodge, 2 Swanst. 258. 381 BILLS FOR DISCOVERT, large quantity C. L., &c. and that your orator being then commandant of the said merchants "ac ^^'P ^°°^ °^ board thereof at C. L. and other ports divers very large count. quantities of dollars and other specie for the purpose of bringing Several sets of the same to E. On freight ; and that on all occasions when your orator so bills of lading took on board the said ship such quantities of dollars and other specie, executed. y^^^ orator duly executed sets of bills of lading thereof, which some- times consisted of three, sometimes of four, and sometimes of five One of which bills of lading ; and that your orator kept one of such bills of lading was kept by Jq jjjg q^^ possession, and delivered the others of them to the mer- the'othe'rs"de- Chants who were the shippers of the said dollars and specie and to livered to the whom the same belonged ; and that your orator on all such occasion merchants. (Ju|y made true entries in the ship's manifest of all such quantities Entries made of dollars and Other specie so taken on board the said ship, together manifest of the ^^''^ *^® names of the several persons who shipped the same or on r *382 1 ^hos6 account they were *shipped, and of the said persons to whom . „ the same were consigned. And your orator further showeth unto dollars on joi'" honors that under the circumstances and by the means aforesaid, board, on the ship's manifest in which the said entries were made contained whose ac- ^n exact and true statement of the contents of the said bills of lad- and°to^whom ^^S ^^^ ^"^ exact and true account of all and every the quantities of consigned. dollars and other specie which were as aforesaid taken on board the The ship's said ship whilst she was stationed or cruizing at or off the several manifest con- ports and places aforesaid ; and that on or about the day of tained true t^-l j.i.- i tilt statements of December your orator having a very large and valuable cargo the bills of la- of dollars and specie on board the said ship or vessel called the H., ding and of departed on board the said ship from the said port of C. on his re- of'^dollarstot^ ^"'"'^ f^oyage to B., and that at the time when your orator so departed ken on board, from C. aforesaid, the said ship's manifest contained an account and On the return true Statement of all the bills of lading which had been signed by voyage there your orator as aforesaid, and an exact and true account of all the cargo of'^dol- <^*^11^^3 ^^^ specie which your orator had taken on board the said larsandspecie ship as aforesaid; and that on or about the 17th day of March — ^ on board. your orator having the said cargo on board the said ship, arrived That the ship at the port of P. ; and that upon your orator's arrival at the port of arrived at P., p_ aforesaid, the ship was immediately visited by the proper officer v'^thrproper °^ ^^^ Majesty's customs appointed for that purpose, and that the officer, and the said officer searched and examined the said ship and the cargo on cargo found board thereof, and he compared such cargo with the account thereof withThe=hi°s '^o'^^^i'^^'^ ™ *^6 Said ship's manifest, and the same were found ex- manifest' actly to correspond, and the said cargo so on board the said ship at P. was in fact precisely the same cargo which had been and was taken on board the said ship by your orator as hereinbefore in men- 'th^^a^^^ °^ tioned. And your orator further showeth unto your honors that by\hrpi°ai^-^ ^^er the said ship and the cargo thereof had been so searched and ex- tiSF's permis- amined as aforesaid, 4040 dollars part of the said cargo were by the sion taken out orders or permission of your orator taken out of the said ship at P. mainderdeliv- ^^^ 7°^^ orator Caused all the remaining dollars and other specie ered at the of which the Said cargo consisted, to be delivered at the Bank of BankofEng- England for the use of the several persons who should show them- usetf thicon- ®®^^^® *° ^^ entitled thereto by producing bills of lading for the signees. several parts thereof which had been as aforesaid signed by your BILLS FOR DISCOVERY. 382 orator and delivered to the several and respective shippers thereof ; and that at the same time your orator caused to be delivered to the The ship's said Bank of England the original ship's manifest, for the guidance "laniftst de- of the Bank of England in the delivery of the said dollars and other ga/k for their specie to the several and respective person who should apply for the guidance. same on production of bills of lading ; and that immediately after That divers the dollars and Other specie and the said ship's manifest had been so pfrsons appii- delivered to the Bank of England as aforesaid, and in or about the \^^^^ bnuof month of March divers persons on the behalf of different Span- ladiug signed ish merchants in &c., produced to the Bank of England bills of lading by plaintiff. duly signed by your orator of the several quantities of dollars and other specie so delivered by your orator at the Bank of England, and thereupon applied to have the said dollars and specie delivered to them accordingly and that the contents of such several bills of lading were And the same by the proper officers of the Bank of England compared with the being found to *several and respective entries thereof in the said ship's manifest, and [ *383 ] the same being found exactly to correspond, the Bank of England correspond caused the whole of the said dollars and other specie so claimed to be with the ship's delivered to the several persons who applied for the same; and that Bank '^deliver- in such manner and by such means as aforesaid, the whole of the said ed the whole cargo of dollars and other specie was claimed and duly delivered to quantity of the several persons who were duly entitled thereto, and the said cargo gpecle^o'the of dollars and other specie and all the accounts relating thereto were persons who finally cleared and settled. And your orator further showeth unto applied ; your honors that it has lately been discovered and the fact is that in And all the ac- or about the beginning of the year one D. J. A. who was a naiiy*s^tTed^' partner in the house of A. & A. merchants at L. aforesaid, raised ,j,^^^ j^ ^^^ divers sums of money by fraudulently endorsing and delivering to been lately certain persons at L. and other places divers paper-writings purport- discovered ing to be bills of lading of certain quantities of dollars or specie *^' °°| ^' ^• pretended to have been shipped on board different British ships and ly indorsed sent to E., and having subscribed to them the names of the com- and delivered manders of the ships on board of which it was pretended that such *° certain per- dollars and specie then were ; and it hath lately been discovered and ments pur-' the fact is that the names of the said commanders so subscribed to porting to be such paper-writings were forged by some person or persons for fraudu- bills of lading lent purposes ; and that upon such fraud being discovered the said shipped'on D. J. A. absconded and went from L. to B. and afterwards to C, and board British took with him a very large amount of specie. And your orator fur- ships. ther showeth unto your honors that a few days previously to the 30th '^bat the com- day of August , being about seventeen months after the whole "ames^ were of the said cargo had been cleared as aforesaid, one J. E.. A. acting forged; on the behalf of J. B. S. of C. aforesaid merchant, the defendant And on being hereto, applied to the Bank of Bngland for the delivery to him of discovered D. 40,000 milled hard dollars which he alleged had been part of the cargo g^^' ^^^^'o^'^- of the said ship the H. and in order to support such application he Application produced to the Bank of England a certain paper-writing purporting made by one to be a bill of lading signed by your orator of 40,000 milled hard J- B- A. on be- dollars shipped on board the said ship at 0. aforesaid on the 20th day g^^'jjg^^gfg^i^. of November to be delivered to J. J. Gr. or in his absence to the ant, to the said J. R. A. ; and that in answer to such application the said J. R. A. Bank for the 383 BILLS FOR DISCOVERT. delivery of 40, 000 dollars al- leged to have formed part of the cargo of plaintiff's ship ; And to sup- port such ap- plication he produced a paperpurport- ing to be a bill of lading signed by the plaintiff. That he vras informed that the whole car- go had been cleared. [ *384 J That he then required plaintiff to pay the same, which plaintiff refused, as he had never re- ceived the same on board; but requested to have the particulars of the shipment. That J. R. A. produced a paper purport- ing to be a bill of lading to which plain- tiff's name ap- peared to be signed in a handwriting nearly resem- bling his, al- though no such was ever signed by him, hut J. R. A. refused to in- form plaintiff of the particu- lars of the shipment. That on plain- tiff 's refusal to pay, J. ]B. S commenced an action against plaintiff, in was informed by the Bank of England to the effect hereinbefore men- tioned, and that the whole cargo of the said ship had long previously been cleared ; and that soon afterwards the said J. R. A. on the be- half of the said J. B. S. required your orator to pay the said sum of 40,000 milled hard dollars ; and that your orator well knowing as the fact is that your orator had not taken on board the said ship the H. the said 40,000 dollars which were as aforesaid claimed by the said J. R. A. on the behalf of the said J. B. S., and had never signed any bill of lading thereof, informed the said J. R. A. to that effect, and refused to deliver or pay the said 40,000 dollars or the value thereof to the said J. B. S. or any other person on his behalf, but your orator requested the said J. R. A. as the agent of the said J. B. S. to pro- duce to your orator the said alleged bill of lading, and to acquaint your orator with the particulars of the alleged shipment of the said 40,000 dollars on board the said ship the H. at C. on the 20th day of ^November ; and that soon afterwards and in consequence of such request the said J. R. A. did produce to your orator a cer- tain paper-writing purporting to be such bill of lading, and that at the foot of such paper-writing your orator's name appeared to be signed in a hand nearly resembling that of your orator, although your orator did not in fact ever sign the same ; but that the said J. R. A. refused to inform your orator of the particulars of the said shipment ; and notwithstanding the circumstances aforesaid, the said J. B. S. by the said J. R. A. as his agent pressed your orator for payment of the value pf the said 40,000 dollars ; and that your orator having refused to pay the same, the said J. B. S. in or as of Michaelmas Term instant, commenced an action at law against your orator in his Majesty's Court of King's Bench for the recovery of the value of the said 40,000 dollars, which value in the declaration filed by him in the said action he hath alleged to amount to the sum of £10,000, at which sum he hath laid his damages. And your ora- tor further showeth that your orator having never taken the said 40,000 dollars or any part thereof on board the said ship, hath fre- quently and in a friendly manner by himself and his agents applied to the said J. B. S. and his agents, and requested them to set forth all the particulars in any manner relating to the said 40,000 dollars and the said alleged shipment thereof, and particularly to set forth when and where and from whom the said J. B. S. alleged that he obtained the said 40,000 dollars, and where and in whose custody the said 40,000 dollars and each and every part thereof were and was deposited previously to the said alleged shipment thereof, and how long the same remained in such custody, and when and from what particular wharf or place and by whom or by whose aid or assistance the said alleged shipment was made, and when and by whom and in whose presence the said dollars were taken on board the said ship, and when and where and in whose presence and on what occasion the said paper-writing purporting to be a bill of lading signed by your orator was signed, and whether any duplicates or copies of such paper- writing were ever and when signed, and if so where and in whose custody the same have been and are, and by what ship and by whom the said paper-writing produced to your orator as aforesaid was brought , BILLS FOR DISCOVERT. 384 to England. And your orator well hoped that such his just and rea- which he sonable requests -would have been complied with, as in justice and claimed the equity ought to have been the case. But now so it is may it please oooi, as the your honors, That, &c. [_seeform IV. p. 5,] the said J. B. S. refuses to value of the comply with the said requests, sometimes pretending that he did ac- dollars. tually'ship the said 40,000 dollars on board the said ship H. and that ^^^^'^^0*'°!,°^ your orator received and brought the same toB. Whereas your orator defendant to expressly charges the contrary of such pretence to be true, and that furnish par- se the truth would appear if the said defendant would set forth the ticuiars re- matters and particulars aforesaid, and the discovery which is hereinaf- l^l^^g "^^^ ter prayed for, but which he refuses to do. And your orator charges the shipment that your orator never received on board the said ship any quantities thereof. of dollars without signing and delivering two, three, or four several Refusal to bills of lading thereof to the shippers thereof, and that he always signed te^fng t'hat and retained one of such bills of lading himself, and that in case he shipped the *the said defendant had shipped the said 40,000 dollars on board the dollars on said ship, but which your orator charges was not the case, your orator tj^at'^piaintiff would according to his constant and invariable custom in that behalf received and have signed and delivered to the said defendant two, three, or four brought the several bills of lading thereof; and the said defendant having alleged j^™® ^° ^°S' that your orator had taken the said 40,000 dollars on board the said r- ^qoc -1 ship, and having produced only one paper-writing purporting to be a l -■ bill of lading thereof, your orator hath requested him to produce the ^g^^f^^y ^ other bills of lading thereof, but which he hath refused to do. And That plaintiff your orator further charges that all and every the bills of lading of never received the several quantities of dollars forming the said cargo, and which bills °° board any of lading were really signed by your orator, arrived in B. and were ^"t g^gnYng ' produced to the Bank of England in or about the month of March ; and delivering and that if the said paper- writing purporting to be a bill of lading of several sets of the said 40,000 dollars had come from L. to B., the same would have ^ ^ °sw'"^e°r! arrived in E. at or about the same timo, but that the same was not thereof. produced until the month of August . And your orator further That he al- charges that if the said defendant shall be permitted to proceed to ways reta,ined trial of the said action, he intends to produce the said paper- writing casethedefen- purporting to be a bill of lading of the said 40,000 dollars, as evidence danthad ship- that your orator received and took the said 40,000 dollars on board pedthe40,ooo the said ship ; and inasmuch as the writing in which your orator's ^°^^^? ^'^ name appearing to be subscribed to the said paper- writing very nearly ^on\d have resembles and might easily be mistaken for the hand-writing of your received sev- orator, and your orator is not now able to prove the same to be a ^™1 ^^^^ °^ forgery, your orator is apprehensive that unless your orator shall ac- ButMvin^" ' tually prove that he never took the said 40,000 dollars on board the produced only said ship, the said defendant may under the circumstances aforesaid one, plaintiff obtain a verdict in the said action. And your orator charges that f^^ '^ ^° A™ 1 1 ■ 1 ^ n 1 in piiT i t to produce the unless the said deiendant shall set lorth and discover the several others, which matters and particulars of which the discovery is hereby prayed, he refused to your orator will be unable to prove that he did not take the said '^°' 40,000 dollars on board the said vessel. And your orator charges J.'^f* ^iV^? 1 /. ■ , ., 1 .n"^ ., -11 7 ° bills of lading that some 01 your orator s witnesses whose evidence it will be neces- were prodnc- cary for him to adduce in relation to the matters aforesaid, are now ed to the Bank resident in parts beyond the seas, and that until their evidence shall '" ^^larch — . 385 BSLLI FOR DISCOVERY. That the al- leged bill of lading of the 40,000 dollars was not pro- duced until August — . That the de- fendant in- tends to pro- duce the same on the trial. And charge as to the circum- stances enti- tling the plaintiff to a discovery. Charge that some of plain- tiffs witnesses are resident abroad. [ *386 ] And that the defendant ought to be re- strained from all further pro- ceedings at law. Interrogato- ries to the statements. be obtained it will be unsafe for your orator to proceed to a trial of tbe said action. And under all the circumstances aforesaid your orator charges that the said defendant ought to be restrained from any further proceeding in the said action at law already commenced by him, and from commencing and prosecuting any further proceed- ings at law in relation to the matters aforesaid, but that he is now prosecuting, and he threatens and intends to proceed in the said action, and he refuses to discover the matters aforesaid or any of them. All which actings doings pretences and refusals, &c. [see form VI. f. 5.] And more especially that they may in manner afore- said answer and set forth whether in and before the month of Octo- ber or when else in particular your orator was not commandant of his Majesty's said ship or frigate called the H. or how otherwise ; And whether in and before the said month of October or when else in particular the said ship or frigate was not stationed or cruizing at or off C. L. *and other and what Spanish ports on the western coast of S. A. or how otherwise ; And whether your orator being then commandant of the said ship or how otherwise did not and when take on board thereof at C. L. and other and what ports divers very large or some and what quantities of dollars and other and what specie, for the purpose of bringing the same or some and what part thereof to E. on freight, or for some and what other purpose in particular or how otherwise ; And whether on all occasions when your orator so took on board the said ship such quantities of dollars and other specie or on some and which of such occasions your orator did not duly exe- cute sets of bills of lading thereof or how otherwise ; And whether the same did not sometimes consist of three, sometimes of four, and sometimes of five, or some and how many bills of lading or how otherwise ; And whether your orator did not always or sometimes and when keep one of such bills of lading in his own possession or how otherwise ; And whether he did not deliver the others or some and which of them to the merchants who were the shippers of the said dollars and specie, and to whom the same belonged or how other- wise ; And whether your orator did not on all or some and which of such occasions duly make true entries in the ship's manifest of all or some and which of such quantities of dollars and other specie so taken on board the said ship, together with the names of the seve- ral persons who shipped the same, and of the persons to whom the same were consigned or some and which of them in particular or how otherwise ; And whether under the circumstances and by the means aforesaid or under some and what other circumstances or by some and what other means the said ship's manifest in which the SECid entries were made did not contain' an exact and true statement of the contents of the said bills of lading or of some and which of them, and an exact and true account of all and every or some and which of the quantities of dollars and other specie which were as aforesaid taken on board the said ship whilst she was stationed or cruizing at or off the several ports or places aforesaid or how otherwise, and if not why not ; And whether on or about the 12th day of Decem- ber your orator had not a very large and valuable cargo of dol- lars and specie on board the said ship or frigate called the H. or how BILLS FOR DISCOVERT. 386 Otherwise ; And whether on or about the 12th day of December ■ or when else in particular your orator did not depart on board the said ship from the said port of C. on his return voyage to England or how otherwise ; And whether at the time when your orator so departed from C. aforesaid or when else in particular the said ship's manifest did not contain an exact and true statement of all and every or some and which of the bills of lading which had been signed by your orator as aforesaid, and an exact and true account of all or some and which of the dollars and other specie which your orator had taken on board as aforesaid or how otherwise, and if not why not ; And whether on or about the said 17th day of March or when else in particular your orator did not arrive at the port of P. or how otherwise ; and whether your orator had not then the whole or some and what part of the said cargo on board or how otherwise ; and whether upon your orators arrival at P. *aforesaid the said ship was not immediately or when else visited by [ *387 ] the proper oflScer of his Majesty's customs appointed for that pur- pose or how otherwise ; And whether the said officer did not and when search and examine the said ship and the cargo on board thereof or how otherwise ; And whether he did not compare such cargo with the account thereof contained in the said ship's manifest or how otherwise ; And whether the same were not found exactly to correspond or how otherwise, and if not why not ; And whether the said cargo on board the said ship at P. was not in fact precisely the same cargo which had been taken on board the said ship by your orator as hereinbefore mentioned or how otherwise, and if not why not ; And whether soon after the said ship and the cargo thereof had been so searched and examined as aforesaid and when in par- ticular 6340 or some and what other number of dollars part of the said cargo were not by the orders or permission of your orator or how otherwise taken out of the said ship at P. or how otherwise ; And whether your orator did not and when cause all the remaining dollars and other specie of which the cargo consisted or some and what part thereof to be delivered at the Bank of England or where else for the use of the several persons who should show themselves to be entitled thereto by producing bills of lading of the several parts thereof which had been as aforesaid signed by your orator and delivered to the several shippers thereof, or how otherwise ; And whether at the same time or when else in particular your orator did not cause to be delivered to the said Bank of England the original ship's manifest for the guidance of the Bank of England in the de- livery of the said dollars and other specie to the several and respec- tive persons who should apply for the same on production of bills of lading or how otherwise ; And whether immediately or when after the said dollars and other specie and the said ship's manifest had been so delivered to the Bank of England as aforesaid, and whether or not in or about the month of March or when else in par- • ticular divers or some and what persons or person on behalf of dif- ferent Spanish merchants in S. A. and who in particular by name did not produce to the Bank of England bills of lading duly signed by your oratpr of the several quantities of dollars and other and 387 BILLS FOR DISCOVERY. what specie so delivered by your orator at the Bank of England or how otherwise ; And whether such several persons or some and which of them did not thereupon apply to have the said dollars and other specie or some and what part thereof, delivered to them ac- cordingly or how otherwise ; And whether the contents of such seve- ral bills of lading or some and which of them were not by the proper or some and what ofiBcers or ofiScer of the Bank of England compared with the several and respective entries thereof in the said ship's manifest or how otherwise ; And whether the same or some and which of them were not found exactly to correspond or how otherwise, and if not why not ; And whether the said Bank of England did not and when cause the whole or some and what part of the said dollars and other specie so claimed to be delivered to the several persons who applied for the same or to some and which of them in par- [ *388 ] ticular or how otherwise, and if not why not; *And whether in such manner and by such means as aforesaid or in some and what other man- ner or by some and what other means the whole or some and what part of the said cargo of dollars and other specie was not claimed and duly delivered to the several persons who were duly entitled thereto or how otherwise ; And whether all or some and which of the ac- counts relating thereto were not and when finally cleared and settled or how otherwise ; And whether the said D. J. A. was not a partner in the house of A. and A. merchants at L. ; And whether it has not lately been discovered, and whether the fact is not that in the be- ginning of the year or at some and what other time the said D. J. A. raised divers or some and what sums or sum of money from divers or some and what persons or person at L. or elsewhere and where by indorsing and delivering to such persons or person divers or some, and what paper-writings or writing purporting to be bills or a bill of lading of certain or some and what quantities or quantity of dollars or specie pretended to be shipped on board different or some and what British ships or ship and sent to England or how otherwise ; And whether such paper-writings or writing had not subscribed to them or any and which of them the names or name of the comman- ders or commander of the ships or ship on board whereof such dollars or specie were pretended to have been shipped or how otherwise ; And whether such names or name were or was not forged for fraudulent purposes or how otherwise ; And whether upon such fraud being discovered or upon any other and what occasion the said D. J. A. did not abscond or go from L., and whether he did not go to B. ; And whether he did not afterwards go to M. ; And whether he did not take specie to a very large amount with him or how otherwise ; And whether a few days previously to the 30th day of August or when else in particular, and whether or not about seventeen months or some and what other length of time after the whole of the said cargo had been cleared as aforesaid, the said J. R. A. aqting on the behalf of the said defendant or how otherwise did not apply to the Bank of England for the delivery to him of 40,000 milled hard dollars, or some and what other number of dollars or how otherwise ; And whether he did not allege that such 40,000 milled hard dollars had been part of the cargo of the said ship H. or how otherwise ; BILLS FOR DISCOVEEY. 388 And whether in order to support such application or for some and what other purpose he did not and when produce to the Bank of England a curtain paper-writing purporting to he a hill of lading signed by your orator of 40,000 milled hard dollars shipped on board the said ship at C. aforesaid on the 20th day of November , to be delivered to the said J. J. G. or in his absence to the said J. R. A. or how otherwise' And whether in answer to such application the said J. E,. A. was not informed by the Bank of England to the eifect hereinbefore mentioned, or to some and what other eifect, and that the whole cargo of the said ship H. had long previously been cleared or how otherwise ; And whether soon afterwards and when in par- ticular the said J. E.. A. on behalf of the said defendant or how otherwise did not require your orator to pay the said sum of 40,000 milled hard dollars or some and what part thereof or how other- wise ; And whether your orator did not well know and whether the *fact is not that your orator had not taken on board the said ship H. [ *389 ] the said 40,000 milled hard dollars which were as aforesaid claimed by the said J. R. A. on the behalf of the said defendant, and had never signed any bill of lading thereof or how otherwise ; And whe- ther therefore or for some and what other reason your orator did not inform the said J. R. A. to that effect, or to some and what other effect ; And whether he did not refuse to deliver or pay the said 40,000 milled hard dollars or the value thereof to the said defendant or to any other person on his behalf or how otherwise ; And whe- ther your orator did not request the said J. R. A. as the agent of the said defendant to produce to your orator the said alleged bill of lading, and to acquaint your orator with the particulars of the said alleged shipment of the said 40,000 milled hard dollars on board the said ship H. at C. aforesaid on the 20th day of November or how otherwise ; And whether soon afterwards and when in particular, and whether or not in consequence of such requests or how other- wise, the said J. R. A. did not produce to your orator a certain paper-writing purporting to be a bill of lading or how otherwise ; And whether at the foot of such paper-writing your orator's name did not appear to be signed in a hand very nearly resembling that of your orator or how otherwise; and whether the said J. R. A. did not refuse to inform your orator of the particulars of the said alleged shipment and why ; And whether notwithstanding the cir- cumstances aforesaid the said defendant did not by the said J. R. A. or how otherwise press your orator for payment of the value of the said 40,000 milled hard dollars or how otherwise; And whether your orator having refused to pay the same, the said defendant did not in or as of Michaelmas Term instant or when else in particular com- mence an action at law against your orator in his Majesty's Court of King's Bench for the recovery of the value of the said sum of 40,000 milled hard dollars or for some and what other purpose or how otherwise ; And whether he hath not in the declaration filed by him in the said action alleged the value of the said 40,000 milled hard dollars to amount to the sum of 10,000Z. or to some and what other amount ; And whether he hath not laid his damages at such last-mentioned sum at some and what other sum of money in par- 389 BILLS FOR DISCOVERY. ticular or how otherwise ; And whether your orator hath not made or caused to be made such applications and requests as aforesaid or some and what other application and requests to the said defendant and his agents or to some or one and which of them in particular ; And whether they or some or one and which of them have not or hath not refused to comply therewith and why ; And if the said de- fendant or his agents shall allege or pretend that the said defendant shipped the said 40,000 milled hard dollars or any other number of dollars on board the said ship the H., then that the said defendant may set forth all the particulars in any manner relating thereto and the alleged shipment thereof; And particularly that he may set forth when and where and from whom the said defendant alleges that he obtained the said 40,000 milled hard dollars, and where and in whoso custody the said 40,000 milled hard dollars and each and every part thereof were and was deposited previously to the said [ *390 ] ^alleged shipment thereof, and how long the same remained in such custody and when and from what particular wharf or place or by whose aid or assistance the said alleged shipment was made, and when and by whom and in whose presence the said dollars were received on board the said ship, and when and where and in whose presence and on what occasion the said paper-writing purporting to be a bill of lad- ing signed by your orator was signed, and whether any duplicates or copies or duplicate or copy of such paper-writing were or was ever and when signed, and if so where and in whose custody the same have or hath been and are or is and by what ship and by whom the said paper- writing produced to your orator as aforesaid was brought to England, and why it was detained so many months after the sailing of the said ship H. And that the said defendant may answer and set forth whe- ther your orator ever and when and from whom received on board the said ship any and what quantity of dollars without signing and delivering two three or four several or some and how many bills of lading thereof to the shippers thereof or how otherwise ; And whether he did not always or sometimes and when sign and retain one of such bills of lading himself or how otherwise ; And whether in case the said defendant had shipped the said 40,000 milled hard dollars on board the said ship your orator would not according to his constant and invariable custom in that behalf have signed and delivered to the said defendant two three or four several or some and how many bills of lading thereof or how otherwise, and if not why not ; And whether the said defendant hath ever and when produced more than one bill of lading of the said 40,000 milled hard dollars or how otherwise, and if not why not ; And whether your orator hath not requested him to produce the other bills of lading thereof or how otherwise ; And whether he hath not refused so to do and why ; And whether all and every or some and which of the bills of lading of the several quantities of dollars forming the said cargo which were really signed by your orator did not arrive in England, and whether the same or some or one or which of them were not or was not produced to the Bank of England in or before the month of March or at some and what other time or how otherwise ; And whether if the said paper- writing purporting to be a bill of lading of the said 40,000 milled hard Interrogato ries to the charging parta. BILLS FOR DISCOVERY. 390 dollars had come from C. to E. the same would not have arrived in E. at or about the same time or how otherwise, and if not why not ; And whether the same was produced previously to the month of August or when in particular was the same produced ; And whether if the said defendant shall be admitted to proceed to trial of the said action he does not intend to produce the said paper-writing purporting to be a bill of lading of the said 40,000 milled hard dollars as evidence that your orator received and took the said 40,000 milled hard dollars on board the said ship or how otherwise ; And whether the hand-writing in which your orator's name appears to be sub- scribed to the said paper-writing does npt very nearly resemble and whether the same might not easily be mistaken for the hand-writing of your orator or how otherwise ; And whether therefore or for some and what other reason your orator is not apprehensive that unless your orator shall actually prove that he never took the said *40,000 milled hard dollars on board the said ship, that the said de- [ *391 ] fendant may under the circumstances aforesaid obtain a verdict in the said action or how otherwise ; and whether your orator will not be unable to prove that he did not take the said dollars on board the said vessel unless the said defendant shall set forth and discover the several matters and particulars aforesaid or how otherwise ; And whether some and which of your orator's witnesses whose evidence it will be necessary for him to adduce in relation to the matters aforesaid are not now resident in parts beyond the seas, and where in particular do they respectively reside ; And whether until their or some and which of their evidence shall be obtained it will not be un- safe for your orator to proceed to a trial of the said action or how otherwise; And whether under all the circumstances aforesaid the said defendant ought not to be restrained from any further proceed- ing in the said action at law already commenced by him, and from commencing and prosecuting any other proceedings at law in relation to the matters aforesaid or how otherwise, and if not why not ; And whether he is not now proceeding ; And whether he does not threaten and intend to proceed in the said action or how otherwise ; And whether he does not refuse to discover the matters aforesaid or any or either and which of them and why. And that the said defendant may make a full and true discovery Prayer, of all and every the matters hereinbefore stated and inquired after ; And that he may be restrained by the order or injunction of this honorable court from any further proceedings in the said action at law already commenced by him and from commencing or prosecut- ing any other action or proceeding at law in relation to the matters aforesaid or any of them. And that your orator may be at liberty to sue out one or more commission or commissions to examine your orator's witnesses abroad touching or concerning the matters afore- said or any of them. May it please your honors, &c. [see form No. 1, p. 6, and note {o), ibid. ; and form No. 4, p. 6.] Pray subpoena and injunction against J. B. S., omitting the words " to , stand to and abide by such order and decree," ^c. 391 BILLS FOR DISCOVERT. That prior to the settlement M. M. was sei- sed in fee as heiress at law of her father. [ *392 ] That in con- templation of the marriage of her daugh- ter M. E. M. with T. B. cer- tain inden- tures of lease and release and settle- ment were ex- ecuted. The estates limited in moieties. *CXXXIX. Bill for discovery and ■production of indentures of lease and release and settlement, in aid of an ejectment brought for the recovery of a moiety of the settled estates.iVd) The bill (which was filed by the Rev. W. Wright and S. E. B. Brewer his wife) states that prior to and at the time of the execution of the indentures of lease and release and settlement after mentioned, M. M. widow (one of the parties to the said settlement) was seised or *entitled in fee as heiress at law of her father T. B. deceased, to the manor of P. alias P. in the county of S. and divers lands messu- ages, &c., in the parish of M. N. in the same county, and in, certain other parishes and places near thereto. That a marriage being intended between M. E. M. the younger daughter of the said M. M. with T. B., certain indentures of lease and release and settlement dated 8th and 9th August, 1748, were executed between the said M. M. and M. E. M. of the first part, T. B. of the second part, and Sir J. C. bart, and J. B. of the third part, and Sir W. M. bart, and the Rev. C. P. clerk of the fourth part, whereby after reciting the intended marriage between the said T. B. and M. E. M.,, it was witnessed that in consideration of a settlement made or intended to be made by the said T. B. of certain real estates belonging to him, the said M. M. did grant and confirm unto the said Sir W. M. and 0. P. their heirs and assigns all the said manor of P. alias P. and divers messuages farms lands, &c. therein described and situate in the parish of M. N. in the said county of S. and in other parishes or places near thereto with their appurtenances. To hold unto the said Sir W. M. and C. P. their heirs and assigns, To the use of the said M. M. and her heirs until the said intended marriage, and from and after the solemnization thereof. As to one moiety of the said manor and pre- mises. To the use of the said T. B. for his life, with remainder. To the use of the said Sir W. M. and 0. P. and their heirs during the life of the said T. B., upon trust to preserve the contingent remainders there- inafter limited with remainder. To the use of the said M. E. M. for her life ; And as to the other moiety of the said manor and premises. To the use of the said Sir J. 0. and C. P. their executors administra- tors and assigns for the term of 200 years upon certain trusts therein mentioned, which have been since satisfied, and subject thereto. To the use of the said T. B. for his life ; with remainder, to the use of the said Sir W. M. and C. P. and their heirs during the life of the said T. B., upon trust to preserve the contingent remainders therein- after limited ; with remainder. To the use of the said M. E. M. for her life ; with remainder. As To the whole of the said manor and premises. To the use of the said Sir W. M. and C. P. their executors adminis- trators and assigns for a term of 500 years upon certain trusts therein- after mentioned for raising portions for the younger sons and daughters of the said marriage ; with remainder, To the use of the first and (19) See Wright v. Plumtre, 3 Madd. 481 ; a demurrer was put into this bill -but overruled on account of the allegation inserted postea, p. 393, in italics. BILLS FOR DISCOVERY. 8®2 Other sons of said T. B. and M. E. M. severally and successively in tail male; With remainder to the use of the daughters of the said T. B. by the said E. M. as tenants in common in tail general, with cross remainders ; with remainder, As to the moiety of the said The ultimate manor and premises so limited to the said trustees for the said term limitation on of 200 years as aforesaid. To the use of the said T. B. his heirs and of'ti^e mar-"* assigns for ever ; And as to the other moiety of the said manor and riage, being as premises, to the use of D. M. the other daughter of the said M. M. to one moiety, during h-er life ; with remainder, to the use of the said Sir W. M. J[° .'''• ^- '° and C. P. and their heirs during the life of the said D. M., upon trust to preserve contingent remainders; with remainder, To the use of the first and other sons of the body of the said D. M. severally and successively in tail male ; with remainder, to the use *of the daughters of the said D. M. as tenants in common in tail, with [ *393 ] cross remainders ; with remainder, To the use of all and every the And as to the nearest of kin in equal degree to the said D. M. at the time of her ""iff moiety, decease without issue, of the name B., share and share alike as ten- of ijin of the ants in common and not as joint tenants, and their heirs and assigns name of B. in for ever ; And the trusts of the said term of 500 years were declared ^^'^ '" ^1"?^' to be for the raising some sum of money for the daughters and younger m f the other sons of the said marriage ; and in the said indenture of release and daughter of settlement was contained in a proviso for determining the said term ^• *^) ^' ^^^ of 500 years when the trust thereof should be satisfied or become un- cease° without necessary, " but the said indentures of lease and release and settle- issue. ment being in the possession or power of the defendants hereto, the But the deeds plaintiffs are unable to set forth the same with certainty." '''^'"g i° *^ That soon after the date and execution of the said indentures of t^Tdefend-" settlement a marriage was had between the said T. B. and M. E. M. ants, the and upon the said marriage the said T. B. entered into possession or plaintiffs are receipt of the rents and profits of the said manor and premises as , "^u\l*° ^*' „ ,.„ I. 1 1 f. -11 1 -1 forth the same tenant tor me thereof under the aioresaid settlement and contmued ^vith certain- in such possession or receipt until the time of his death in 1802 ; and ty. he the said T. B. in his life-time made his will and thereby gave and The marriage devised unto the said D. M. and her heirs all his messuages lands '^i*^ ^"m"^ "^' , , ,. , o edandT. B. as tenements and hereditaments whatsoever. tenant for life That the said M. E. the wife of the said T. B. died several years entered into ago in the life-time of her husband leaving no issue of the said mar- possession, riage, or that if she left any such issue, the same failed in the life- cievised all his time of the said T. B., and upon the decease of the said T. B., the said estates to D. D. M. by virtue of the limitations contained in the said indenture of '^■ release and settlement, entered into possession or receipt of the rents 2'^^!'' °^.?^' „ and profits of one moiety of the said manor and premises as tenant t!b. in his life for life, and she by virtue of the will of the said T. B., entered into time without possession or receipt of the rents and profits of the other moiety of issue ; the said manor and premises, and continued in such possession or re- ^" J^'^ death, ceipt until the time of her death in February 1805. ij,jo pos^es- That the said D. M. by a codicil to her will devised all her estate siononemoie- and interest in the said estates which were theretofore the estates of '? ^s tenant her grandfather T. B. deceased, (meaning the said manor and pre- ^^ othet" °^ mises comprised in the said indentures of lease and release and set- 30 393 BILLS FOE DISCOVERY. moietj as de- tlement,) unto E. p., J. S. D. and P. B. D. (the defendants after visee of T. B. named) their heirs and assigns. ^y '?«''7'j| f « That the said D. M. died unmarried, and upon her decease the said esTates to the' E. P. J. S. D. and P. B. D. possessed themselves of the said indentures defeadanta. of lease and release and settlement, and they entered into the posses- Death of D.M. sion or into the receipt of the rents and profits not only of the said unmarried, moiety of the Said manor and premises to which the said D. M. was thedefenZTs entitled by virtue of the said will of T. B., but also of the other entered into moiety thereof, and which by the said indenture of release and set- possession of tlement was limited upon the death and failure of issue of the said both moieties, jy y^ ^^ ^^^ nearest of kin to D. M. at the time of her decease with- out issue of the name of B. At the time of That at the time of the death of the said D. M. plaintiff S. E. DM^'laiutiff ^- ^- "^- "^^^ t^^ nearest of kin to the said D. M. of the name or S. E. B.B. W. *family of B., (that is to say): the said plaintiff was the daughter was her near- of the K,ev. J. B. clerk deceased, who was the only son of N. B. de- est of km of ceased, who was a brother of the aforesaid T. B. deceased, who was ^ e nam o ^-^^ natural grandfather of the said D. M. and the father of the said r *394 1 "^^ ^- ^^^ settlor, so that the said plaintiff stood in the relationship Andth r b of third cousin to the Said D. M.; and by reason of said joto'wfe^ being plaintiffs be^ such nearest of kin to the said D. M. as aforesaid, plaintiffs in right came entitled of plaintiff S. E. B. B. W. became entitled upon the death of the to one moiety g^^jjj j)_ y^ ^j^g ^^j yij-tug of the limitation contained in the said in- mu » .,, denture of release and settlement to one moiety of the said manor That they . . ■' have brought a^d premises. an ejectment That plaintiffs have lately commenced an action of ejectment sessTonThere' ^P^"^*^ ^^^ ^^^^ ^- ^- J" ^- ^- ^^^ ^- ^- ^- ^^ recover the posses- of but the in- ^^^^ '^^ ^^^ ^^^^ moiety of the said manor and premises to ■which plain- dentures of tiffs are SO entitled as aforesaid, but the said indenture of lease and settlement release and settlement being in the possession or power of the said possession of defendants, plaintiffs are unable safely to go to trial in the said ac- the defend- tion without a discovery of the contents thereof. To the end there- ants, plaintiffs fore that the said defendants E. P. J. S. D. and P. B. D. may, &c. go^to'triaf *° t*^ *'* form VI. p.. 5, interrogating to the statements.'] without a dis- And that the said defendants may make a full and true disclosure coTcry of the and discovery of all and singular the matter and things aforesaid, in contents order that the plaintiffs may give the same in evidence at the trial Praver °^ *^® ^^^^ action of ejectment; and that the said indentures of lease and release and settlement of the 8th and 9th of August 1748, may be brought into court and deposited with one of the masters thereof, and that plaintiffs may be at liberty to use and give in evidence the same at the trial of the said action in support thereof. [JFor the conclusion see form Wo. 1, p. 6, and note (o), ibid.J BILLS FOR DISCOVERY. 394 CXL. Bill in the Lord Mayor's Court, London, hy the defendant in the action there, for a discovery in aid of his defence to the ac- tion,{20) he having pleaded to the jurisdiction. To, &c. [see form Ifo. 3, antea, p. 2.] Humbly complaining showeth unto your lordship and worships That the de- your orator M. W. of, &c.. That W. B. J. B. and S. B. all of, &c. ftndants have merchants and copartners have lately commenced an action against an'action^ your orator in this honorable court, and have declared in such action against plain- in concessit solvere,{21) and your orator hath pleaded thereto that the ti^i and that cause of such action (if any) accrued out of the jurisdiction of this ^he'^ur^^dfc-'" court, to which the plaintiffs in the said action have replied that the tiou. cause of such action accrued within the jurisdiction. *And your orator further showeth that he never had any dealings and [ *395 J transactions whatsoever with the said W. B. J. B. and S. B. within That he never the city of L. or within the jurisdiction of this court, and he hath ]'^^ any deal- applied to them to state the particulars of the demand upon which 'defendants ^ the said action is commenced and the nature and origin thereof, within the ju- BuT NOW so IT IS may it please your lordship and worships that Hsdiction of the said W. B. &c. refuse to state a full true and particular account *^^ ''°^\h f'^ ~, ., , PIT 1- 1 n ^ "^^ applied 01 the particulars and amount oi the demand in respect whereoi the for the par- said action is commenced, together with the times or time when and ticulars of the manner in which and the place where the several transactions ''^"'^ demand. took place from which such demand arose, and who were all the per- sons concerned therein. And the said defendants sometimes pretend Pretence that that the said demand arose from some bills or bill of exchange which ^^^ defend- 1 t 1 ■ J J 1. i 1 • ants' demand were or was drawn accepted or indorsed by your orator or on his ^j^gg j^ ^g. behalf, but they refuse to set forth the dates and contents of such spect of bill bills or bill, and when and where and by whom and on whom the same transactions, were or was drawn, and by whom the same were or was accepted and Want's r^efuse to indorsed, and what considerations or consideration were or was paid discover the or given to your orator for drawing accepting or indorsing the said particulars bills or bill, and when and where and by whom and in what manner * ^^^° ■ such consideration was paid or given, and when and where and in what manner the said defendants first became the holders of such bills or bill, and what consideration^was paid or given by them for the same, and when and in what manner and to whom such considera- tion was so paid or given by the said defendants, and in what man- ner they make out a demand against your orator upon the said bills or bill arising within the jurisdiction of this court. And your orator Charge as to charges that the said defendants have in their custody or power di- books, letters, vers books of account letters and copies of letters and other papers '^' and writings which relate to their said demand upon which the said action has been commenced, but they refuse to set forth an accurate (20) A prayer for relief does not render a bill for discovery in the Lord Mayor's Court demurrable; Ashley on Attachments, p. 105. (21) See Ashley on Attachments, p. 68. 395 BILLS FOB DISCOVERT. list and description of all such books of account letters copies of let- ters papers and writings, and to produce the same to your orator and That plaintiff his agents ; and your orator without a discovery of the several mat- jf r rt^'I^ '° ters aforesaid will be unable to defend himself in such action. To actbn without ™B END therefore that the said defendants, W. B. J. B. and S. B. a discovery, may, &c. [as inform VI. p. 5,] and more especially Whether they Interrogate- the said W. B. J. B. and S. B. have not commenced an action against ries. your orator in this court; And whether they_ have not declared in such action in concessit solvere or how otherwise ; And whether your ' orator hath not pleaded thereto that the cause of such action (if any) accrued out of the jurisdiction of this court or to that effect ; And whether the plaintiffs in the said action have not replied that the cause of such action accrued within the jurisdiction or how otherwise ; And whether your orator ever had any and what dealings and trans- actions with them the said W. B. J. B. and S. B. or any and which of them within the city of London or within the jurisdiction of this court and where in particular, and that the said defendants may state a full true and particular account of all the particulars and amount of the demand in respect whereof the said action is com- [ *396 ] menced, together with the times or time when and the *manner in which and the place or places where the several transactions took place from which such demand arose and who were all the persons concerned therein ; And whether the said demand arose from any and what bills or bill of exchange which were or was drawn accepted or indorsed by your orator or on his behalf, and that they may set forth the dates or date and contents of all such bills or of such bill, and when and where and by whom and on whom the same were or was drawn, and by whom the same were or was accepted and indorsed, and what considerations or consideration were or was paid or given to your orator for drawing accepting or indorsing the said bills or bill, and when and where and by whom and in what manner such consideration was paid or given by them for the same and when and where and in what manner and to whom such consideration and every part thereof was so paid or given by the said defendants, and in what manner they make out a demand against your orator upon the said bills or bill arising within the jurisdiction of this court; And that the said defendants may answer and set forth in manner aforesaid whether they have not now or had not and when last in their custody or power some and what books or book of account and some and what letters and copies of letters and other papers and writings which relate to their said demand upon which the said action has been commenced, and that the said defendants may set forth an accurate list and description of all and singular such books of account letters copies of letters papers and writings, and that they may produce the same with liberty for your orator his solicitors or agents to inspect the same and take copies thereof as they shall be advised. And that the said defendants may answer the premises ; and may make a full and true discovery of the several matters aforesaid, and that your orator may have the benefit thereof in the trial of the said action. May it please your lordship and worships out of your accus- BILLS FOR DISCOVERT. 396 tomed goodness to cause the said W. B. J. B. and S. B. to be warned, &c. Pray process against W. B, J. B. and S. B. N. B. Though this bill does not pray any injunction, still it ope- rates and is in effect an injunction bill ; because by the practice of the Mayor's Court, a bill is a stay of proceedings from the time of filing thereof. *CXLI. Bill in the Lord Mayor's Court, London, for a discovery of [ *397 ] property in the hands of the garnishees, in aid of an attachment. To, &c. [see form No, 3, antea, p. 2.] Humbly complaining show unto your lordship and worships your The debt due orators G. M. and R. M. of , merchants and partners, That J. B. to the plain- late of , mariner, but now of , being justly and truly indebted ''^^• unto your orators in the sum of £ for goods sold and delivered and your orators being informed that A. R. and W. G. of, &c. had in their hands and custody divers sums of money and also divers goods and chattels which belonged to and were the property of the said J. B. and also several notes of hand, bills and other securities which were the property of the said J. B. the produce of goods sold by them for and on account of the said J. B. to a very considerable amount, and more than sufficient to answer your orator's demands on the said J. B. ; and your orators having frequently applied to the said J. B. for payment thereof, and he refusing to pay the same, your orators were An action of advised to enter an action of debt in this honorable court against the debt com- said J. B., and according to the form of proceedings in such cases had menced and pursued, to cause such moneys goods chattels and effects of the debtor and said J. B. to be attached in the hands of the said defendants ; and your an attachment orators accordingly on did cause such action of debt to be en- ^^^^ °^ ^^^ tered against the said J. B., and on between the hours of the h^ands'of and in the , did cause an attachment to be thereupon made the defend- of the said moneys goods chattels and effects in the hands of the said ants the defendants belonging to the said J. B. And your orators well hoped g^™ishees. that as the said defendants well knew that the said debt was justly due to your orator from the said J. B., that they the said defendants The defend- would have suffered your orators to have proceeded to a condemna- ^nts dispute tion of the said moneys goods chattels and effects of the said J. B. so ment^andre- attached as aforesaid, and would have acquainted or furnished your fuse to ac- orators with the particulars of the moneys goods chattels and effects quaint piain- which they had in their hands custody or power belonging to the said ^^^^^j.^^^ f\^ J. B., and thereby enabled your orators to have had execution of the property in said attachment, as in justice and equity they ought to have done, their hands. But now so it is may it please your lordship and worships that 397 BILLS FOR DISCOVERT. Pretence that the Said A. R. and W. Gr. sometimes pretend that the said J. B. was there is no ^q^ indebted to your orators in manner and form aforesaid or other- plaintiffs!°and ^ise howsoever ; and at other times they will admit that he was in- that the de- debted to your orators as aforesaid ; but then they pretend that at the fendants had time of making the said attachment they had not any moneys goods theSo'rTi'n ^^^ chattels belonging to the said J. B. in their hands custody power their hands, or possession. Whereas your orators expressly charge that at the Charge that time of making such attachment the said J. B. was indebted to your the debt was orators in such amount as hereinbefore stated, and that the said defen- of mlkhf *the ^^^^^ °^ °^^ °^ *^®™ ^^^ ^^ *^®^^ °^ ^^^ ^*°'^^ custody or power moneys attachment, ^ goods chattels and also notes bills and other securities belonging to the r *398 1 ^^^^ *J' -^- 1° * great amount and value, and more than suflBcient to an- and that the ^'^^^ ^^^ V^J J°^^ orators Said demand ; and that since the making defendants of the said attachment divers other sums of money goods and chat- had then pro- tels, and also notes bills and other securities have come into the debtor's^in^'* hands power custody and possession of the said defendants or one of their hands, them belonging to the said J. B., and particularly that the said de- and have since fendants had in their hands custody or power at the time of your received other orator's making the said attachment or at some time since, the sum proper y. ^^ ^ ^^ some large sum of money which the said defendants re- ceived at for and on account and to the use of the said J. B., arisen from the sale of goods belonging to and the property of the said J. B. And at other times the said defendants admit that at the time of making the said attachment they had moneys goods chat- tels and effects and also notes bills and other securities of the said J. B. in their hands custody power or possession, and that since the making thereof divers other sums of money goods and chattels notes bills and other securities belonging to the said J. B. have come into Pretence that their hands custody power or possession ; but then they give out and the same had pretend with a view and design to overturn and set aside the said been previ- attachment so made by your orators as aforesaid, that long before your ously made ,. ii n -ii -i ^ over to other orators makmg such attachment as aforesaid, the said moneys goods persons. chattels and effects notes bills and other securities belonging to the said -J. B. in their hands were wholly appropriated assigned and made over by bills orders indorsements assignments or otherwise by the said J. B. to divers persons, prior to your orator's making the said attachment ; and .which said bills orders indorsements and as- signments the said defendants pretend are binding on them, and that consequently they are compellable to apply the said moneys goods Charge the chattels and securities accordingly. Whereas your orators charge contrary. the Contrary of such pretences to be the ^ruth. And at other times Pretence that the said defendants pretend that long before the time of your orators' another at- making such attachment as aforesaid, the said moneys goods chat- been pre- tfi^s ^^^ securities belonging to the said J. B. in their hands, were viously issued, attached by other persons for more than the amount of such moneys goods chattels and effects notes bills and other securities, and that such attachment being made prior to the attachment so made by your orators as aforesaid, is entitled to a preference, and ought to be paid and discharged before your orators' said attachment. Charge the Whereas your orators charge the contrary of such last-mentioned contrary. pretences to be the truth ; and the said defendants will at other BILLS FOR DISCOVERT. times admit that at the time of your orators' making the said attachment they had in their hands and custody moneys goods chat- tels and effects and also notes bills and other securities belonging to the said J. B. more than sufficient to answer and pay your ora- tors' said debt ; but then they give out and pretend that the said Pretence that moneys goods chattels and securities were not liable in law to be *''^t^™^^'^% attached, but refuse to discover why or for what reasons they are ^as not liable not so liable ; and at other times the said defendants pretend, that at law to be the said J. B. is indebted to them in a much larger sum of money attached; and than the said moneys goods chattels and securities which they orwaafndebt- had in their hands custody or power at the time of your orators ed to the de- making the said attachment, and which have since come into the fendants in a *hands custody or power would be sufficient to satisfy and pay. "^ou^t^'^^^'^ Whereas your orators charge the contrary thereof to be the truth, r *oqq i and that a balance was due from the said defendants respectively to '- ■' the said J. B. at the time of your orators' making the said attach- conTrary. ^ ment. All which actings doings pretences, &c. [^As inform VI. p. ^jj^t a bai- 5, omitting the word " confederates," and interrogate to the stating ance was dne and charging parts.'} from them. And if the said defendants or either of them shall pretend or allege interrogato- that the said J. B. was indebted to them or either of them in any or "es as to the a much larger sum of money than the moneys goods chattels and ^ the defend- securities in their hands custody or power will be sufficient to satisfy ants to be due and pay, then that they may set forth and discover the particulars to them. of such debt and debts si\pi and sums of money so due and owing from the said J. B. to the said defendants or either and which of them, and how and in what manner and upon what account the said debt or debts was or were contracted, and when, and all the particu- lars relative thereto ; and that the said defendants may also set forth and discover how much of the moneys goods chattels and securities belonging to the said J. B. in their hands custody or power at the time of your orators' making the said attachment as aforesaid, or come into their hands since the making thereof, now remain in the hands custody or power of them the said defendants or either and which of them and undisposed of together with a full true and parti- cular description of all such moneys goods chattels and other securi- ties ; And whether some and what balance and to what amount was not due from them respectively or from one and which of them to the said J. B. at the time of your orators' making the said attachment as aforesaid, or at some time and when since. And that the said defendants may answer the premises, and may Prayer. make a full and true disclosure and discovery of the several matters aforesaid. May it please your lordships and worships, &c. *^Q BILLS NOT ORIGINAL. ♦CHAPTER IV. BILLS NOT ORIGINAL. Bills not original are either an addition to, or a continuance of an original bill, or both. An imperfection in the frame of a bill may generally be remedied by an amendment ; but the imperfection may remain undiscovered whilst the proceedings are in such a state that an amendment can be permitted according to the practice of the court. This is particularly the case where, after the court has de- cided upon the suit as framed, it appears necessary to bring some other matter before the court to obtain the full effect of the decision ; or, before a decision has been obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined, (in which case the practice of the court will not permit an amendment of the original bill,)(l) some other point appears neces- sary to be made, or some additional discovery is found requisite. (2) And though a suit is perfect in its institution, it may, by some event subsequent to the filing of the original bill, become defective, so that no proceeding can be had, either as to the whole or as to some part, with eifect ; or it may become abated, so that there can be no pro- ceeding at all, either as to the whole, or /as to part of the bill. The first is the case when, although the parties to the suit may remain before the court, some event subsequent to the institution of the suit has either made such a change in the interests of those parties, or given to some other person such an interest in the matters in litiga- tion, that the proceedings, as they stand, cannot have their full effect. The other is the case when, by some subsequent event, there is no person before the court by whom, or against whom, the suit, in the whole or in part, can be prosecuted. (3) [ *401 ] *Biils not original may be, I. A supplemental bill, which is merely an addition to the original bill. II. A bill of revivor, which is a continuance of the original bill, when by death some party to it has become incapable of prosecuting or defending a suit, or a female plaintiff has by marriage incapacitated herself from suing alone. (1) An amendment for the purpose of adding parties will be allowed at the hearing of the cause; Jones v. Jones, 3 Atk. 110 ; Goodwin v. Goodwin, ibid. 370; Palk v. Lord Clinton, 12 Ves. 48, 66, 2d edition ; Hill v. Kirwan, 1 Jac. R. 163, 4 ; Wellbeloved V. Jones, 1 Sim. & Stu. 43 ; or to correct a mere clerical error. Attorney General v. Newcomh, 14 Ves. 6. In the case of an infant complainant, this liberty it seems would be granted without restriction if for his benefit, Frilchard v. Quinchant Amb 147 : Ld. Red. Tr. PI. p. 55, note (m), 4th ed. (2) See Goodwin v. Goodwin, cited supra. (3) See Ld. Red. Tr. PL 56. 4th ed. SUPPLEMENTAL BILLS. 401 III. A bill both of revivor and supplement, whict continues a suit upon an abatement, and supplies defects arisen from some event subsequent to the institution of the suit.(4) SECT. I. SUPPLEMENTAL BILLS.' Where the imperfection of a suit arises from a defect in the original bill, or in some of the proceedings upon it, and not from (4) Ld. Red. Tr. PI. p. 34, 5. " In order to file a supplemental bill, it must be shown that the matter relied on as supplemental, has arisen since the commencement of the original suit, or that the facts have first become known to the plaintiff in such a way that he could malie use of them since the cause passed the stage in which he might have leave to amend, or that he had been prevented by inadvertence, mistake, or some other cause satisfac- torily shown, from availing himself of the matter proposed to be shown at an earlier stage of the cause ; and the supplemental bill must be confined to such matter, and must be verified by affidavit, or other satisfactory proof. Pedrick v. White, 1 Met. 76 ; Bowie V. Minter, 2 Ala. 406; see also, Easbrouck v. Shuster, 4 Barb. Sup. Ct. 285; Collins V. Lavenherg, 19 Ala. 682. The court will also permit other'matters to be in- troduced into the supplemental bill which miglit have been incorporated in the original, by way of amendment ; and this is especially proper, where the matter which occurred prior is necessary to the proper elucidation of that which occurred sub- sequently to the filing of the original bill; Graves v. Miles, Earring. Ch. 332; and when properly before the court, it is an addition to the original bill, and becomes a part of it, so that the whole is to be taken as one supplemental bill. Oillett v. Hall. 13 Conn. 426; Cunningham -i. Rogers, 14 Ala. 147; Potier^. Barclay, 15 Ala. 439; Harrington v. Slade, 22 Barb. (N. Y.) 161. A stranger to a suit in equity, claiming an Interest therein, cannot interfere with the proceedings, without filing a supplemental bill to make himself a party. Watt v. Crawford, 11 Paige, 470; Livingston v. Freeland, 3 Barb. Ch. B. 510. And when a supplemental bill is filed, bringing new parties into court, it is as to them a new suit, and is to be considered as being commenced when the supplemental bill is pleaded in office. Morgan v. Morgan, 10 Geo. 297. Where the plaintiff appears entitled to relief which cannot be based upon the original bill, the Court may permit him to file a supplemental bill, setting forth the matter necessary to justify a complete decree; Clifton v. Haig, 4 Dessau. 330 ; but where new parties and new interests arising since the filing of the original bill, are to be brought before the court, the proper remedy is by an original in the nature of a supplemental bill ; such bill is in effect the commencement of a new suit, but may in its consequences draw to itself the advantage of the proceedings on the former bill. Bowie v. Minter, 2 Ala. 406. Where a female, who should have been party to the original bill, subsequently married, a supplemental bill was held to be necessary to bring her and her husband before the court ; Campbell v. Browne, 5 Paige, C. R. 34 ; and where pending a bill, some of the complainants and defendants became bankrupt, and the same person is appointed assignee of both, he is properly made party defendant by supplemental bill of the remaining complainants; Toulmin v. Hamilton, 7 Ala. 362; and a pur- chaser of the rights of one of the parties pending the suit, will not be permitted to come in and take part in the proceedings without a supplemental bill, except by con- sent of the other parties. V/ilder v. Keeler, 3 Paige, C. R. 164. A supplemental bill to bring before the court matters which arose before the filing of the original bill, is improper; but an objection on that ground comes too late at the hearing after plea, answer, or demurrer; Fulton Bank v. New York and Sharon Canal Company, 4 Paige, 0. E. 127 ; nor can the plaintiff, after the replication 401 SUPPLEMENTAL BILLS. any event subsequent to the institution of the suit, it may be added to by a supplemental bill merely.(5) Thus a supplemental bill may be filed to obtain a further discovery(6) from a defendant, to put a new matter in issue, or to add parties, where the proceedings are in such a state that the original bill cannot be amended for the purpose.(7) And this may be done as well after as before a decree ; and the bill may be either in aid of the decree, that it may be carried fully into execution,(8) or that proper directions may be given upon some matter omitted in the original bill, (9) or not put in issue by it, or [ *402 ] *by the defence made to it;(10) or to bring formal parties before the Court :(]1) or it maybe used as a ground to impeach the decree, which is the peculiar case of a supplemental bill in the nature of a bill of review. But wherever the same end may be obtained by (5) As a general rule it has been laid down, that events which have happened subsequently to the filing of the original bill ought not to be made the subject of amendment, but that they should be brought before the court by a supplemental bill f Jones v. Jones, 3 Atk. 217 ; Pilkington v. Wignall, 2 Madd. R. 244 ; Vsborne v. Baker, ibid. 379, 388 ; but see Knight v. Matthew, 1 Madd. R. 572, in which case the Vice-Chancellor held, that where circumstances are introduced in an answer which have occurred subsequently to the filing of the bill, the plaintiff must be allowed to make amendments to the bill, so as to show that such new circumstances mentioned in the answer are not of the color the defendant represents them, and so as to obtain a complete answer to such circumstances. See also Ld. Bed. Tr. PI. p. 61, and note (e), ibid. (6^ XJsborne v. Baher, 2 Madd. B. 387 ; Boe:ve v. Skipwith, 2 Ch. Eep. 142. (7) Goodwin v. Goodwin, 2 Atk. 370. (8) Woodward v. Woodward, 1 Dick. 33 ; and see 3 Atk. 133 ; or it may be filed by a tenant in tail in remainder to make himself a party to a former suit for the purpose of appealing against a decree obtained by fraud in such former suit against the prior tenant in tail ; Giffard v. Eort, 2 Sch. & Lef. 386. (9) Dormer v. Fortescue, 3 Atk. 132, 3. (10) Jones V. Jones, 3 Atk. 109 ; and see 1 Jac. & "W. 339. (11) Jones V. Jones, 3 Atk. 217. is filed, file a supplemental bill to bring before the court facts known to him before filing the replication. Dias v. Merle, 4 Paige, 0. R. 259 ; see also. Walker v. Gilbert, 7 S. & M. 456. Although a hill is styled therein as a supplemental bill, and refers to prior proceedings and decrees, as facts on which to ground the claim for relief, but not praying a revision of any prior decree, yet it is not really a supplemental but an original bill. Brooks v. Brooks, 12 Gill & J. 306. New oral testimony, tend- ing merely to corroborate evidence on the one side, or to contradict evidence on the other, on the points in issue, is not a sufiBcient foundation for a supplemental bill ; Jenkins v. Eldredge, 3 Story, 299; and after a decree of dismissal to a bill, a supple- mental bill to the original cannot be filed. Burke v. Smith, 15 111. 158. Where cer- tain material facts are not stated in a bill, through the inadvertence, misapprehension, or mistake of the plaintiff, or his counsel, and which he supposed were stated, and by reason of the loss of a copy of the bill certain omissions were not brought to his knowledge until it was too late to amend the bill, it was held that a supplemental bill might be filed. Dodge v. Dodge, 9 Foster, (N. H.) 177. A supplemental bill cannot he filed as a matter of course, but only by leave of court, and upon sufficient cause shown ; Tappan v. Evans, 12 N. H. 330 ; Pedrick v. While, 1 Met. 76; Kennedy v. Georgia State Bank, 8 How. U. S. 586; Winn v. Albert 2 Md. Oh. Decis. 42 ; but upon an ex parte application to file a supplemental billj leave is granted of course, if probable cause for filing it is shown. The court ex- amines the question only so far as to see that it is not intended for delay or vexation. Eager v. Price, 2 Paige, C. R. 333 ; see also. Walker v. Hallett, 1 Ala. N. S. 379 ; Law- rence V. Bolton, 3 Paige, C. R. 294 ; Turner v. Berry, 3 Gilman, 541. A supplemental bill, after a decree, must not seek to vary the principles of the decree, but, taking that as the basis, seek merely to supply any omissions there may be in it, or in the proceedings which led to it, so as to enable the court to give full effect to its de- cision. O'Hara T. Shepherd, 3 Md. Ch. Decis. 306. SUPPLEMENTAL BILLS. 402 amendment, the court will not permit a supplemental bill to be filed.(12) When any event happens subsequently to the time of filing an original bill, (13) which gives a new interest in the matter in dispute to any person not a party to the hill, as the birth of a tenant in tail, or a new interest to a party, as the happening of some other con- tingency, the defect may be supplied by a bill which is usually called a supplemental bill, and is in fact merely so with respect to tbe rest of the suit, though with respect to its immediate object, and against any new party, it has in some degree the eifect of an original bill. If any event happens which occasions any alteration in the interest of any of the parties to a suit, and does not deprive a plaintiif suing in his own right of his whole interest in the subject, as in the case of a mortgage, or other partial change of interest ; or if a plaintiff suing in his own right is entirely deprived of his interst, but he is not the sole plaintiff, the defect arising from this event may be supplied by a bill of the same kind, which is likewise commonly termed, and is in some respects a supplemental bill merely, though in other respects, and especially against any new party, it has also in some degree the effect of an original bill. In all these cases the parties to the suit are able to proceed in it to a certain extent, though from the defect arising from the event subsequent to the filing of the original bill, the pro- ceedings are not sufficient to attain their full object.(14) A supplemental bill must state the original bill, and the proceed- ings thereon; and if the supplemental bill is occasioned by an event subsequent to the original bill, it must state that event, and the con- sequent alteration with respect to the parties ; and in general, the supplemental bill must pray that all the defendants may appear and answer to the charges it contains. For if the supplemental bill is not for a discovery merely, the cause must be heard upon the supplemental bill at the same time that it is heard upon the original bill, if it has not been before heard; and if the cause has been before heard, it must be further heard upon the supplemental matter. (15) If indeed the alteration or acquisition of interest happens to a defendant or a person necessary to be made a defend- *ant, the supplemental bill may be exhibited by the plaintiff in the [ *403 ] original suit against such person alone, and may pray a decree upon the particular supplemental matter alleged against that person only ; unless, which is frequently the case, the interest of the other defend- ants may be affected by that decree. Where a supplemental bill is (12) Baldwin v. Mackown, 3 Atk. 811 ; and see note (5), antea, p. 401. (13) Such subsequent event must not only be relevant but material, see Milner v. Lord Earewood, 11 Ves. 144, 148, 2d edit. ; and of such a nature that the relief sought in respect thereof cannot be obtained under the original bill ; Adams v. Dowding, 2 Madd. R. 53 ; and see Lord Eldon's observations on the judgment of the Master of tbe Rolls in the case of Mole v. Smith, 1 Jao. & W. 665, upon exceptions to the Master's Report, Jac. R. 493, 5. (14) Ld. Red. Tr. PL 63, and note (o), ibid. Where a party by the present practice of the court may obtain that relief by peti- tion for which a supplemental bill was formerly necessary, and prefers the latter course, the supplemental bill is not demurrable, but the proceeding will be taken into consideration on the question of costs, Davies v. Williams, 1 Sim. Rep. 5. (15) 2 Madd. Rep. 60. 403 SUPPLEMENTAL BILLS. merely for the purpose of bringing formal parties before the court as defendants, the parties defendants to the original bill need not in any case be made parties to the supplemental.(16) Original bill exhibited by the same plaintiffs, Stating the testator's will and codicil, And praying to haTc the usual ac- counts taken of the testa- tor's estate, debts, &c.(one of the plain- tiffs who had received part, offering to ac- count;) that the clear resi- due might be ascertained, and that the executor might be charged with interest upon the balances retained by him ; that the shares of [ *404 J the plaintiffs in one moiety might be as- certained and secured, that the share of a *CXLII. Supplemental hill hy residuary legatees under a will after answers put in to the original hill, — one of the defendants a resi- duary legatee having since assigned his share hy way of mortgage, and taken the henefit of the Insolvent Acts, the assignee under those acts and the personal representative of the mortgagee deceased are made parties. The original hill had stated that the testator s will had heen proved, hut such was not the fact, and two of the executors are also made parties defendants to the supplemental hill, (the other executor heing one of the plaintiffs). To&c. Humbly complaining show iinto your lordship your orators and oratrix James T., John Y., G. Y., A. Y., R. Y., and M. Y., That your orators and oratrix on or about the of , 1824, ex- hibited their original bill of complaint in this honorable court against John Y., D. Y., M. L., M. Y., J.Y., andB. Y., which said bill after stat- ing the will and codicil of the said testator G. Y. and other matters and things, prayed that an account might be taken by and under the di- rection of this honorable court of the personal estate and effects of the said testator possessed or received by the said defendant John Y. the executor, or by any other person by his order or for his use, or which without his wilful default might have been received, and of his the said testator's debts funeral and testamentary expenses and legacies, your orator James Y. being ready and willing to account for all sums of money received by him out of the personal estate of the said testator, and that the personal estate of the said testator might be applied in a due course of administration, and that the clear residue thereof might be ascertained, and that the said defendant John Y. the ex- ecutor might be charged with interest upon such residue from the time he ought to have paid or invested the same, or at least upon so much of the said residue as belongs to your orators and the other children of your oratrix M. Y., and that the shares and porportions of your orators and the other children of the said M. Y. in one-half of such residue might be ascertained and paid or properly secured to them, and that the share of the said D. Y. the deceased child of the said M. Y. might be paid to his personal representative or ^properly secured, and that the other moiety of the said residue of the said personal estate might be paid or secured to the persons entitled thereto, and that a sufiBcient sum might be invested in the three per cent, consols, to answer the annual payment to which the said defendant M. L. is entitled under the said will of the said testator, (16) Ld. Eed. Tr. PI. T5, 6. SUPPLEMENTAL BILLS. 404 with liberty upon the death of the persons entitled to the said fund deceased child set apart to secure the same, to apply to this honorable court as "'|^' ^^ P^'"^ they should be advised, and for further relief. And your orators sentativT'^aiid and oratrix further show unto your lordship that all the said defend- the other moi- ants appeared and put in their answers to the said bill. And ety secured for your orators and oratrix further show that the said defendant John luied"^In"°' Y. by his answer admitted that he had in his hands the sum of that a auffi- £ arising from the personal estate and effects of the said testa- "^'f * s""". tor, and this honorable court by an order bearing date the day of ™'fte^ "Jo '"" 1825, directed the said defendant John Y. the executor to pay answer an au- the said sum into court, and which hath been accordingly done and nuity given by the said sum has under the said order been laid out in the purchase ^^^ ^'''' of ^1924 14s. 9d. three per cent, consolidated bank annuities in the daLt^l'^tar-' name of the Accountant-General of this honorable court, In trust ed and an- in this cause. As in and by the said bill and answers order and swered. other proceedings now upon the records of his honorable court will The executor appear. And your orators and oratrix further show unto your lord- ^ai^n''"f b ship that the said defendant John Y. who is in the said original bill in his hands alleged to have proved the said will and codicil in the proper Eccle- wasorderedto siastical Court in this country, had not in fact done so at the time of P^^ ^^^ ^'^'^^ filing the said original bill, and at the time of putting in his said wbLhTum answer thereto. But your orators and oratrix further show unto was after- your lordship by way of supplement, that the said defendant John J^^i^s laid out Y. has together with your orator James Y. and the defendant M. L. chase^ofTt'ock lately and since the time of putting in his said answer duly proved in the Ac- the said will and codicil in the proper Ecclesiastical Court in this countant Gen- country, and they the said defendant, John Y. your orator James ^'^^''^ n&me. Y. and the said defendant M. L. have obtained probate thereof and J,"?? ' '^"^ "^J'' •L 111 111 1 ■ f 1 ■ ^ altnougn sta- nave thereby became the legal personal representatives ot the said ted to have testator. And your orators further show unto your lordship that proved the your orator James Y. who was at the time of filing the said original ^''^' ^^^ "°' bill residing in A. has since arrived in this country, and having gu i t received and paid several sums of money while resident in A. and ry matter since the death of the said testator, and some of them since the filing That the de- of the said original bill, as one of the executors named in the said f?°dauts John will of the said testator, your orator James Y. is ready and willing and also to account for such receipts and payments. And your orators and piaintiffjames oratrix further show likewise by way of supplement, that before any ^- ^^"^ imeij further proceedings were had in the said cause an indenture of con- ^°ii^ ^ ditional assignment bearing date the day of 1826, was xhat plaintiff made and executed by and between the said defendant D. Y. one of James Y. has the residuary legatees named in the will of the said testator of the one f^'^'y arrived part, and J. T>. of, &c. of the other part, whereby in considera- ^^^ ^f willing tion of the sum of £100 by the said J. D. paid to the said de- to account for fendant D. Y. he the said D. Y. assigned unto the said J. D. his his receipts executors administrators and assigns all the part share and interest ^" payments. present or future vested or contingent of him the said defendant as°s^gim°e'irb^ *D. Y. in to or out of the said sum of 1924?. 14s. 9d. 3 per cent, con- p ^j.O'i l solidated bank annuities, and all other part share or interest of him '- J the said defendant D. Y. of in to or out of the residuary personal es- q^y. one of tate of the said testator, with full power and authority in the name of the defend- 405 SUPPLEMENTAL BILLS. ants, of his Bhare as resi- duary legatee for securing money lent. Death of the assignee. His will ap- pointing J. W. D. his execu- tor, who has since proved the same. That D.Y. has taken the benefit of the insolvent acts, and that his estate has been assigned to H. G. Prayer. Prayer of pro- cess of subpoe- tlie said defendant D. T. to ask demand and sue and to give sufficient receipts for the said premises thereby assigned, To hold the same upon the trust following ; that if the said defendant D. Y. should not upon demand pay to the said J. D. the said sum of 1001. and other such further sum and sums of money if any thereafter to he lent by the said J. D. to or on account of the said defendant D. Y. not exceed- ing in the whole together with the said sum of lOOZ. the principal sum of 2001. sterling, together with interest thereon respectively then due and owing, or should not in the meantime until such demand pay unto the said J. D. interest at the rate of 5 per cent, upon the said sum of 1001. and also upon such further sum or sums of money upon the times and on the days therein mentioned, Upon trust that the said J. D. should immediately upon such default or at any time or times thereafter raise and levy and pay to himself the sum of lOOL, and also such further sums thereafter to be lent together with interest thereon and all expenses occasioned by the non-payment thereof, and after such payment in trust for the said defendant D. Y. As in and by the said deed when produced to this honorable court reference being thereunto had will appear. And your orators and oratrix fur- ther show unto your lordship that the said J. D. has since died having in his life-time duly made and executed his last will and testament in writing, and thereby appointed his son J. W. D. of, &c. his sole executor and constituted him his universal legatee ; and the said tes- tator J. D. died without revoking his said will, and the said J. W. D. hath proved the said will in the proper Ecclesiastical Court. And your orators and oratrix further show unto your lordship that the said defendant D. Y. hath since the execution of the said deed taken the benefit of the statutes for the relief of insolvent debtors, and the estate and effects of the said defendant D. Y. have been duly assign- ed unto H. G. of, &c. and such estate and effects are now vested in the said H. G. To THE END therefore that the said defendant John Y. the exe- cutor and the said defendant M. L. and the said J. W. D. and H. G. may answer the matters hereinbefore charged by way of supplement, and that your orators and oratrix may have such and the same relief against the said defendant .John Y. M. L. and J. W. D. and 11. G. as by the said original bill is prayed against the said defendant John Y. and the said D. Y. the residuary legatee. May it please your lordship to grant unto your orators and oratrix his Majesty's most gracious writ or writs of subpoena to be directed to the said John Y. the executor M. L. J. W. D. and H. G. thereby command- ing them at a certain day and under a certain pain therein to be in- serted personally to be and appear before your lordship in this honorable court, and then and there to answer the premises. And your orators and oratrix shall ever pray, &c. SUPPLEMENTAL BILLS. *406 *CXLIII. Supplemental bill against the assignee of a bankrupt de- fendant. Humbly complaining show unto your lordship your orators A. B. and C. D. of , That your orators did in or as of Term Original bill exhibit their original bill of complaint in this honorable court against exhibited. B. L. of , praying that an account might be taken of the personal estate, effects, &c. And your orators farther show that the said de- The defendant fendant having been served with process to appear appeared accord- appeared and ingly and put in his answer to the said bill, and your orators replied P°' ^°- ^^^ ^^' to the said answer, but before any further proceedings were had in , ' ng^tjQ^ the said cause, and on or about the day of a commission filed. of bankrupt under the great seal of Great Britain was awarded and Supplementa- issued against the said B. L. who hath been thereupon duly found and ry matters- declared bankrupt; And E. D. of the defendant hereinafter b°^^jfpt°s-°^ named having been since duly chosen assignee of the estate and effects gued against of the said bankrupt, the major part of the commissioners named and the defendant. authorized in and by the said commission have duly conveyed and ^- ^- pl^o^en assigned all the estate and effects late of the said bankrupt to the ^nd the usual said E. D. ; And therefore your orator is advised that he is.entitled conveyance to the same relief against the said E. D., as he would have been en- ^^^ assign- titled to against the said B. L. if he had not become bankrupt. To ^gcuted to THE END therefore, &c. [see form VI. p. 5, and interrogate to the Mm. statements.^ And that your orators may have the full benefit of the said suit Prayer. and proceedings therein against the said E. D., and may have the same relief against him as your orators might or could have had against the said B. L. in case he had not become bankrupt ; Or that your orators may have such further or other relief in the premises as to your lordship shall seem meet. May it please, &c. [see form No. 1, p. 6,] CXLIV. Supplemental bill to an original bill filed by a purchaser for specific performance of a contract stating that since ■publi- cation has passed, it has been discovered that part of the property included in the particular of sale, and described as in the occupa- tion of a tenant, was his own fee-simple, and praying that compen- sation may be allowed for the loss of such part, and for a reference to the Master accordingly. Humbly complaining showeth unto your lordship your orator A. M. of, &c., That on or about your orator exhibited his original bill Original bill of complaint in this honorable court against the defendants ^^'^^'^''''i hereto stating, &c. &c. and praying therefore that, &c. And your ora- sfm" defend- tor further showeth that all the said defendants being duly served with ants ; process appeared and put in their answers to the said original bill *40T SUPPLEMENTAL BILLS. Answers put in, and publi- cation passed. Snpplemeuta. ry matter, — That certain lands were de- scribed as in the occupa- t'on of C. J. a tenant to one of the defend- ants. That part ■ thereof was his own pro- perty in fee- simple, and that an allot- ment of in- closed land has been awarded to him in respect thereof. Applications made to the defendants to make compen- sation. Prayer. *aiid witnesses hare been examined and publication hath been passed. As in and by, &c. And your orator further showeth unto your lord- ship by way of supplement that in the printed particulars distributed at and previously to the said sale of the said manor and premises, and under which your orator purchased, C. J. esq. was therein de- scribed to be in possession as tenant to the said lord A. of acres of land held for one life, called, &c. and of certain other lands held for two lives, making together with the said acres of land acres roods and perches ; and the said printed particulars -, and referred to a certain paper or terrier called the terrier of in such terrier the said lands so held by the said C. J. which were thereby made to amount to the said quantity of acres roods and perches were particularly described, and as part thereof were stated the six following articles, &c. &c. And your orator further showeth by way of supplement that since publication hath passed in the said original cause your orator hath discovered, as the fact is, that although the said C. J. was in possession of the said acres roods and perches yet as to acres, part thereof, he held the same not as tenant to the said lord A. but as his own property in fee-simple (that is to say,) &c. &c. And your orator further showeth that the said C. J. hath under a certain act of parliament made and passed in the year of the reign of his present Majesty, intituled, "An act for enclosing lands in K. in the county of S." claimed before the commissioners appointed thereby, and been allowed an allotment of land in respect of the said acres as his own absolute property. And your orator further showeth that having purchased the said manor and premises upon the faith and confidence that the said acres roods and perches of land in the possession of the said C. J. were held by him as tenant of the said defendant lord A. according to the said printed particu- lars of sale, your orators since he hath discovered that the said acres part thereof were the absolute property of the said C. J., hath repeatedly applied to the said defendants, and required them to make to your orator a reasonable compensation in respect thereof, with which just and reasonable requests your orator hoped that the said defendants would have complied, as in justice and equity they ought to have done. But now so it is, may it please your lordship that the said defendants refuse so to do, pretending that the said acres roods and perches were as described in the said par- ticular of sale held by the said C. J. as tenant thereof to the said lord A. Whereas your orator charges the contrary thereof to be the truth. To the end therefore that, &c. [see form VI. p. 5, and inter- rogate to the stating and charging parts.^ And that the said defendants may answer the premises ; and that it may be referred to one of the masters of this honorable court to inquire what compensation your orator is entitled to in respect of the loss of the said acres of land, and that such compensation to- gether with interest thereon may be paid or satisfied out of the said sum of £i- if so much shall remain thereof after satisfaction of the demands of your orator claimed by the said original bill, or other- wise by the said defendant lord A., and that this your orator's bill of SUPPLEMENTAL BILLS. *408 ^complaint may be deemed and taken as and for a bill of supplement to his said original bill of complaint. [And for further relief see form VIII. jp. 5.] May it please, &c. [see form No, l,p. 6.] J. L. CXLV. Supplemental hill to an original and amended hill filed hy a lessed for the specific performance of an agreement to grant a further lease, stating that the defendant has brought an ejectment against the plaintiff, and praying an injunction to restrain his proceeding at law. Humbly complaining showeth unto your lordship your orator J. K. of, &c., That in or as of Term your orator exhibited his Original bill original bill of complaint in this honorable court against H. B. S., exhibited and which said bill hath been amended by order of this honorable !f^"'!,' f*^®, ,1 . . ■ . ■ T ^ n 1 -111 T same defend- court, thereby praymg that the said defendant might be decreed spe- ant, and after- cifically to perform his agreement with your orator touching the lease wards amend- of the farm and premises in the said bill mentioned, and to grant ^^' P^'^yj^S your orator a lease thereof for years commencing from the ex- performance piration of his former lease, at the yearly rent of £ , your era- of an agree- tor being willing and ready to do and perform everything on his part ™^°' ^° S''^"* required to be done and performed in pursuance of the said agree- farm, ment. And your orator further showeth that the said defendant appeared and put in his answer to the said original bill. As by the Answer put said bill and answer now remaining as of record in this honorable in- court reference being thereunto had will appear. And your orator Supplemental further showeth by way of supplement that since the filing of the matter- said original bill the said defendant hath caused an action of eject- fendant\as' ment to be commenced in his Majesty's court of King's Bench at brought an Westminster for the purpose of turning your orator out of possession action of of the said farm and premises, and the said action is still depending ejs='"«°t _ 1 -I .^T , 1 • i-i,i ,1-iT against plain- m the said court. And your orator being advised that the said de- tiff. fendant cannot support such action, and that your orator is entitled to a specific performance of the said agreement as prayed by his said amended bill, he has by himself and his agents several times applied Applications to and requested the said defendant to desist from proceeding in the T'i'^® *° ""^ said action, and he was in hopes that he would have complied with des^st.^"' '" such fair and reasonable requests as in justice and equity he ought to have done. But now so it is may it please your lordship that the said H. B. S. refuses to comply with your orator's said requests. Refusal to and insists upon proceeding in his said action and to turn your ora- comply. tor out of possession of the said farm and lands, to the manifest wrong and injury of your orator in the premises. To the end therefore that, &c. [see form VI. p. 5, and interrogate to the state- ments.'] And that the said defendant may be restrained by the injunction Prayer, of this honorable court from proceeding in the said action, and from comtnencing any other action or proceeding at law for tlae purpose *of turning your orator out of possession of the said farm and lands. £ *409 ] 31 409 SUPPLEMENTAL BILLS. [And for further relief, see form VIII. p. 5.] May it please, &c. [see forms No. 1, and 4, p. 6.1 A. C. Pray subpoena and injunction against H. B. S. Original bill exhibited and afterwards amended. That all the defendants have appear- ed and that some of them havo put in their answers. Supplemen- tary matter, — That the de- fendant J. L. has since had a son bom who is the first tenant in tail in remain- der. Praver. CXLVI. Supplemental hill on the birth of the first tenant in tail. To, &c. Complaining showeth unto your lordship your orator Gr. 0. Earl of E. of , That on or about the day of your orator exhibited his original bill of complaint in this honorable court, which was by an order of this honorable court bearing date duly amended, and such amended bill was exhibited against as de- fendants thereto, thereby stating such several matters and things as are therein for that purpose now particularly mentioned and set forth, and praying, &c. And your orator further showeth that all the said defendants having been duly served with process to appear, appeared, and that the said defendants W. Lord Viscount L., W. L. H. C. L. J. L. J. H. L, and G. L. have put in their answers to the said original and amended bill. As in and by, &c. And your orator further showeth by way of supplement that since the filing of the said original and amended bill and on the day of last past the said defendant L. J. had a son born who has since been christened by the name of C. H. L. ; And that the said C. H. L. is now the first tenant in tail in remainder of the said estates in the said bill mentioned under the limitations of the will of J. Earl of L. deceased the testator therein named. And your orator therefore is advised that he is entitled to have the same relief against the said C. H. L. as by the said original and amended bill is prayed against the said several parties thereto. To the end therefore that the said C. H. L. may answer the premises ; and that your orator may have such and the same relief against the said C. H. L. as in and by the said original and amended bill is prayed against the said several parties thereto. May it please, &c. [ Vide antea, p. 406, and form No. 3, p. 6.] J. L. Pray subpoena against C. H. L. [ *410 ] **CXLVII. Supplemental bill on the birth of a daughter entitled as tenant in common in tail with another daughter, a defendant. Humbly complaining show unto your lordship your orators and oratrixes 0. T. and F. his wife, late F. E. spinster, A. E. widow, the SUPPLEMENTAL BILLS. 410 honorable P. P. and Gr. his wife, the honorable T. M. and A. his wife, late A. P. spinster, A. P. and B, P. and L. P. infants, by the said T. P. their father and next friend, and Sir H. S. bart., That in or about Original bill the month of April your orators and oratrixes exhibited their exhibited. bill of complaint in this honorable court against J. W. R. D. H. D. and B. T. stating thereby the will of P. E. deceased, and the several other matters, whereby it appeared that your oratrix A. E. was tenant for life in possession without impeachment of waste, under the will of the said P. E. of an undivided moiety of certain estates in the counties of C, M. and M., and that your oratrix F. T. was tenant for life in remainder of such undivided moiety and tenant for life in possession without impeachment of waste of the other undivided moiety, with remainder as to the whole to her first and other sons in tail male, with remainder to her daughters as tenants in tail male, subject nevertheless to the payment of the debts of the said P. E., and further stating various matters, whereby it appeared that your orator and oratrix C. T. and F. his wife, and your oratrix A. E. had paid several of the debts so charged upon the said estates, in respect of which they were entitled to be creditors upon the said estates, and that large quantities of wood had been cut down upon the said estates, which was the property of your oratrixes A. E. and F. T. and which had been applied in payment of charges upon the said estates, and in respect of which your orator and oratrix C. T. and F. his wife and your oratrix A. E. were entitled to stand as creditors on the said 'estates, and stating that your oratrix F. T. had no son, but that the said B. T. was her only child, and was the first tenant in tail in esse of the said estates, and therefore praying that the said J. W. might Praying that be discharged from the further execution of the trusts of the said will, ^ •'^if!"^^^'. J ■ 1 1 1 1 1 1 • 1 mignt be dis- and might be decreed to convey or surrender the said trust estates to charged from be held upon the trusts of the said will, and that your orators and the trusts un- oratrixes might have such further or other relief therein as to your ^^\ '^^ 7'*'' «/ 3,11(1 06 QG- lordship should seem meet. As in and by the said bill now remaining creed to sur- as of record in this honorable court, reference being thereunto had render the will more fully appear. And your orators and oratrixes further show *™^' premi- that the several defendants to the said bill appeared and put in their ^.' . ., answers thereto, but no further proceedings have been had in the said fendant ap-" cause. And your orator and oratrix C. T. and F. his wife have since peared and had issue another child, a daughter, named E. T., who is become P°* ^^ ^^^'" tenant in common in tail with the said B. T. of the estates in the /^ ' . said bill mentioned, and who is become a necessary party to this suit, q ^ . an'dVis To THE END therefore that the said E. T. may answer the several wife have had matters stated in the bill of your orators and oratrixes hereinbefore issue another mentioned, and also of the several matters hereinbefore stated, and ^^^^^'J'-. ° that your orators and oratrixes *may have the benefit of the said L *•'■-'- J suit and proceedings and the same relief in respect thereof against auUncomm"" the said E. T. as if she had been originally a party defendant thereto, in tail with May it please, &C. [see form No. 1, p. 6.] another de- fendant. Pray subpoena against E. T. Prayer. 411 SUPPLEMENTAL BILLS. '^CXLVIII. Supplemental hill hy a surviving trustee, making a new trustee a defendant, who had been appointed in the room of a co- plaintiff deceased ; the object of the suit being to obtain possession of the title-deeds which had been surreptitiously obtained hy one of the defendants to the original and amended bill. In Chancery. To, &c. Humbly complaining showeth unto your lordship your orator D. C. of, &c. That by a certain indenture, &c. [stating articles dated Au- gust , entered into between Cr. W. and 0. S. previously to their marriage, whereby they covenanted to settle and convey certain real and personal property within six months after the death of F. C. the wife's father (who teas tenant for life thereof) to the plaintiflF, and also to J. C. and R. S. as trustees ; — the marriage, and the issue thereof, two children ; — also stating two other indentures, whereby the life estate of Q-. W. expectant upon the decease of F. G. was con- veyed to F. C. for 1. ; the will of F. C. bequeathing the same to plaintiff and to J. C. and 0. S. since deceased, In trust for the sepa- rate use of his said daughter S. W. ; also stating the death of F. Q. and probate of his will by plaintiff' and the said J. 0. and Q. S.'\ And your orator further showeth unto your lordship that your orator and also the said J. C. did in or as of Easter Term , ex- hibit their original bill of complaint in this honorable court against the said Gr. W. and S. his wife R. S. and W. A. and A. B. as defend- ants thereby stating, &c. [the deeds and matters aforesaid f\ and that the said C. S. had then departed this life, and that your orator and the said J. C. were then the legal personal representatives of the said F. C, and further stating that the said G. W. had by some means unknown to your orator and the said J. C. obtained posses- sion of the title-deeds muniments evidences and writings of and re- lating to the real and personal estates and premises comprised in the said several indentures thereinbefore mentioned ; and that the said G. W. had delivered same to the said W. A. and A. B., who held or claimed to hold, the same as the solicitors of the said G. W. ; and that by virtue of the several indentures thereinbefore mentioned and of the will of the said testator F. C, your orator and the said com- plainant J. C. as such surviving trustees were entitled to have the custody and possession of all the said title-deeds and writings [and then stating the applications and principal charges^ And Praying [ *412 ] that *the said defendants G. W. W. A. and A. B. might be decreed Praying that to deliver up into the custody and possession of your orator and the m^ht'^deUver^ said complainant J. C. as such surviving trustees as aforesaid the up title-deeds before mentioned deeds muniments evidences and writings, your to the plain- orator and the said J. C. thereby offering to pay off and discharge to in*'^^trnst"e7i^" ^^^ ®^'*^ ^" ^' ^"*^ ^' ^' ^"^ ®""" °^ money to which they might under a will have a good valid and effectual lien in the law upon the said deeds SUPPLEMENTAL BILLS, 412 muniments evidences and writings, if in fact any sucli lien existed, plaintiffs of- And that they the said W. A. A. B. and G. W. might be restrained f^^^J-"/'^'^, by the injunction of this honorable court from delivering up to any i;^ j^q wWch person or parting with the possession of the before mentioned deeds two of the de- muniments evidences and writings or any of them, and also praying fondants as general relief. And your orator further showeth that the said de- might "liave fendants G. W. and S. his wife, W. A. A. B. and R. S. having been thereon, and duly served with process of subpoena for that purpose, appeared to f'"' '^°^ injunc- the said bill, and the said G. W. and S. his wife, W. A. and A. B. ^°lhi°the de- have since put in their answers thereto. As in and by the said bill fendants from and answers now remaining as of record in this honorable court re- parting with ference being thereunto had will more fully appear. And your orator ^^^ deeds. further showeth that since the filing of the said bill and before the ^'l® ^^!!!'o'l" ^ I'l !• Tv-si 1 ants appeared coming m ot the said answers the said complainant J. C. departed and put in this life. And your orator further showeth that since the said an- their answers. swers have been put in your orator hath amended his said bill, there- Death of J. C. by charging, &c. And your orator further showeth by way of sup- p°jf; "yg'j ^ plement to his said original and amended bill, that the said defendant ,^^^^ since the G. W. and S. his wife have in pursuance of the power to them in answers have that behalf given and reserved in and by the said indenture of the been putin the day of August , duly nominated and appointed W. N. ™ nded''.'"' of &c. to be a trustee of and for all the said trust estates and premises a„„„,„„l„ 111 Toi ■ 1 1- T n ^ 1 bupplemen- m the place and stead ot the said complainant J. 0. deceased, to act tary matter- jointly with your orator in the execution of the trusts thereof; but That the de- no conveyance or assignment of the same trust estates and premises w^'^'^^j^g^hi hath yet been made or executed to your orator and the said W. N. ; ^{f^ ;„ puVsu- and the said W. N. refuses to join with your orator in the prosecu- anceofapow- tion of this suit. To the end therefore that, &c. [^seeform VI. p. 5, er reserved to and interrogate to the statements.^ pointed w. N. And that the said W. N. may answer the premises, and may be to be a trustee decreed by this honorable court to concur and join with your orator !°''^^ place of in all necessary and proper acts and proceedings to obtain possession " ' of the several title-deeds and writings of and relating to the trust veyanceofthe estates and premises aforesaid, and for securing the same for the trust premises benefit of the several parties entitled thereto or interested therein li^s beenexe- under and by virtue of the said indenture of settlement. And that and^that he your orator may have such further and other relief in the premises refuses to join as the nature of this case may require and to your lordship shall in the suit. seem meet. May it please, &c. [see form JVo, 1, p. 6.] Prayer. Prai/ subpoena against W. iV. *413 BILLS OF REVIVOK. *SECT. II. BILLS OF REVIVOR.'' Wherever a suit abates by death, and the interest of the person ■whose death has caused the abatement is transmitted to that repre- •> Where a suit in equity abates by death or marriage, the proper means of restoring vitality to the cause is by bill of revivor by or against tlie person who comes in, in the same right of the original party. Bowiev. Minier, 2 Ala. 406 ; CuUum v. JBatre,lb. il5 ; see Pei/tonr. McDowell, 3 Oana,, 314; Solder V. Mount, 2 J. J. Marsh. 181. And upon the abatement of a suit after decree, the defendant is in all cases entitled to revive if the adverse party will not, where he can derive a benefit from the further proceedings in the suit; Anderson v. White, 10 Paige, 0. R. 575 ; but upon the death of the plaintiff, after a decree in favor of himself and others, the representatives of the plaintiff have the first right to revive ; and where a bill of revivor was filed by a defendant in such case, the defendants were directed to show cause why the proceedings should not stand revived, unless the representatives of the plaintiff should apply for further time to decide whether they would revive. Pell v. Elliot, Hopk. 86. A purchaser of the rights of a party to a suit, who subsequently dies, has a right to proceed with the old suit, by a bill of revivor and supplement; but if he allows that suit to drop, and institutes a new one, he cannot bind the defendant by any offer in his former answer ; Botts v. Cozine, 1 Hoff. C. R. 79 ; and where a vendor of land having tendered a sufficient deed, files a bill for specific performance, and dies, his executor may revive without joining the heir. Daniels v. Brodie, 3 Edw. Ch. 275. Where a defendant died pending the suit, and the cause was heard and decided without its having been revived in the name of his heirs and representatives, the decree must be reversed. Morgan v. Dickerson, 1 Monr. 20; see also, Grider v. Payne, 9 Dana, 188. A decree in chancery cannot be revived against heirs \)j sci.fa. The proper method is by bill of revivor or petition in the nature of a bill of revivor; Curtis T. Eawn, 14 Ohio, 185 ; but where a mere revival of the suit is sought, a bill of revivor is not necessary ; a soi. fa. is sufficient; Vaughan v. Wilson, 4 Hen. & M. 480 ; and where a suit is abated by the death of the complainant, who devises his interest in the property in controversy, the suit cannot be continued by a simple bill of re- vivor. In such cases on original bill, in the nature of a hill of revivor and supple- ment, must be filed, on which the question of title may be put in issue. Douglass v. Sherman, 2 Paige, C. R. 358 ; see also, Anderson v. White, 10 Id. 575. Upon the abate- ment of a suit, where the cause of action does not survive, the suit cannot be re- vived to settle a question of costs ; Johnson v. Thomas, 2 Paige, C. R. 377 ; nor will a bill of revivor lie to revive a motion. Uendrix v. Clay, 2 A. K. Marsh. 462. Where a suit in equity abates by the death of some of the defendants before decree, the proper course for the survivors, if they wish to speed the cause, is to move for an order that the complainant revive the suit within suth time as shall be directed by the court, or that his bill be dismissed with costs ; Harrington v. Becker, 2 Barb. Ch. R. 75 ; and where a party claiming an estate by inheritance, files a bill for the pur- pose of setting aside a will, and dies pending the suit, his devisee may file an original bill in the nature of a bill of revivor and supplement; and if his right as devisee be admitted or established, he will be entitled to the benefit of the proceedings in the original suit. Bradly v. McCosker, 1 Comst. 214. Where, by the death of the plaintiff, it becomes necessary to file a supplemental bill, in the nature of a bill of revivor, the court, to prevent the inconvenience of two bills, will permit the intro- duction into suclrbill of other supplemental matter than that which is necessary for the revival of the suit. Manchester v. Matthewson, 2 R. I. 416. Upon a bill to revive, the sole questions before the court are the competency of the parties, and the correctness of the frame of the bill to revive ; Bettes v. Dana, 2 Sum- ner, 383 ; and where a suit is improperly revived, or the complainant has no right to revive it, the objection may be made at the hearing ; Douglass v. Sherman, 2 Paige, C. R. 358 ; and it seems that the same objections which might be raised by plea or demurrer to a bill of revivor, may be shown in opposition to a petition to revive under the statute. Washington Insurance Company v. Slee, 2 Paige, C. R. 365. But where supplementary matter is improperly added to a bill of revivor, the defendant BILLS OF EBVIVOB. 413 sentative -which the law gives or ascertains, as an heir at law, exe- cutor, or administrator, so that the title cannot be disputed at least m the court of Chancery, but the person in whom the title is vested IS alone to be ascertained, the suit may be continued by bill of revivor merely. If a suit abates by marriage of a female plaintiff, and no act is done to affect the rights of the party but the marriage, no title can be disputed ; the person of the husband is the sole fact to be as- certained, and therefore the suit may be continued in this case by bill of revivor merely. (1) Where one of several plaintiffs dies before answer, the surviving plaintiffs may be compelled to revive the suit within a limited time or must submit to have the bill dismissed. (2) A bill of revivor must state the original bill, and the several pro- ceedings thereon, and the abatement ; it must show a title to revive,(3) and charge that the cause ought to be revived, and stand in the same condition with respect to the parties in the bill of revivor as it was in with respect to the parties to the original bill at the time the abatement happened ; and it must pray that the suit may be revived accordingly. It may be likewise necessary to pray that the defend- (1) Ld. Red. Tr.Pl. p. 69, 4th edit. The court after abatement of a suit, has acted without revivor in some instances where the rights of the parties have been fully ascertained by decree, or by subsequent proceedings, as in ordering the payment of money out of court, or the delivery of deeds and writings, Beard v. Earl of Powis, 2 Ves. 398 ; Roundell v. Currer, 6 Ves. 250 ; but in general revivor is necessary to warrant any proceedings after abatement, Wharam v. BrougMon, 1 Ves. 179, 182, 5 ; except proceedings to compel revivor, or to prevent injury to the surviving parties, if the persons entitled to revive neglect to do so. Ld. Red. Tr. PL p. 77, 4th edit, note (ra). 2 Madd. Ch. Pr. 536. (2) Adamson v. Hall, Turn. R. 258. (3) A bill of revivor should only contain so much new matter as is necessary to show the right to revive ; if it contains more, it is demurrable ; 2 Madd. Ch. Pr. 534. cannot on that account, demur to the whole bill, but should demur to the suppl.'- mental matter only. Randolph v. Dickerson, 5 Paige, C. R. 517. In case of the death of the defendant in a bill for the conveyance of land, the bill ought to be revived against his heirs, devisees, and all other persons claiming under the deceased, or in any manner interested in the land ; Key v. Lambert, 1 Hen. & M. 330 ; and process to revive it cannot issue until the names of the representatives of the deceased are fur- nished to the clerfc, in whose names alone the suit can be revived ; Anonymous, i Hen. & M. 410 j see also, Pickering y. Walcott, 1 Smith, 128; and where there are absent and home defendants, there must be process of revival against the absent as well as the home defendants, and publication of notice thereupon. Yates v. Payne, 4 Hen. &M. 412. The party against whom a suit is revived is allowed one term after the return of process, to prepare for trial ; Miner v. Joms, 4 Hen. & M. 480 ; but the party revived against may waive such privilege ; Chew v. Roe, 4 Hen. & M. 489 ; and the necessity of filing a bill of revivor to make the representative of a deceased com- plainant a party to the suit, may be waived by agreement between such represen- tative and the defendant. Boog v. Byley, Charl. R. M. 190. The proper ofiSce of a bill of revivor and supplement, is to revive a suit that has abated, and to supply defects in the original bill arising from subsequent events ; but the supplemental matter must have been newly discovered and verified by afiBdavit. Bowie v. Minter, 2 Ala. 406 ; see also, Pendleton v. Fay, 3 Paige, C. R. 204. In a suit for a rescission of contract for land, where the complainant dies, it should be revived in the name of the heirs, and not of the executors only; and when the defendant dies, all bis heirs should be served with process, or make answer; Kincart v. Sanders, 2 A. K. Marsh. 26 ; and it is erroneous to revive a cause and proceed to a decree where process has not been served. Sweets v. Biggs, 5 Litt. 17 ; see also, Stout v. Higbee, 4 J. J. Marsh. 632 ; Barnes v. Smith, 5 Id. 311. The answer to a bill of revivor cannot dispute the merits of the decree. Arnold v. Styles, 2 Blaokf. 391. 413 BILLS OF EEVIVOR. ant may answer the bill of revivor as in the case of a requisite ad- mission of assets by the representative of a deceased party. In this case, if the defendant does admit assets, the cause may proceed against him upon an order of revivor merely ; but if he does not make that admission, the cause must be heard for the purpose of ob- taining the necessary accounts of the estate of the deceased party to answer the demands made against it by the suit ; and the prayer of the bill therefore in such case usually is, not only that the suit may be revived but also that in case the defendant shall not admit [ *414 ] *assets to answer the purposes of the suit, those accounts may be taken, and so far the bill is in the nature of an original bill. If a defendant to an original bill dies before putting in an answer, or after an answer to which exceptions have been taken, or after an amend- ment of the bill to which no answer has been given, the bill of revi- vor, though requiring itself no answer, must pray that the person against whom it seeks to revive the suit may answer the original bill, or so much of it as the exceptions taken to the answer of the former defendant extend to, or the amendment remaining unanswered. (4) If a decree be obtained against an executor for payment of a debt of his testator and costs out of the assets, and the executor dies, and his representative does not become the representative of the testator, the suit may be revived against the representative of the testator, and the assets of the testator may be pursued in his hands, without reviving against the representative of the original defendant. (5) After a decree a defendant may file a bill of revivor, if the plain- tiffs or those standing in their right, neglect to do so ;(6) for then the rights of the parties are ascertained, and plaintiffs and defend- ants are equally entitled to the benefit of the decree, and equally have a right to prosecute it. (7) In the case of a bill by creditors on behalf of themselves and other creditors, any creditor (who has proved his debt) is entitled to revive. (8) A suit become entirely abated may be revived as to part only of the matter in litigation, or as to part by one bill, and as to the other part by another. Thus if the rights of a plaintiff in a suit upon his death become vested, part in his real and part in his per- sonal representatives, the real representative may revive the suit so far as concerns his title, and the personal so far as his demand ex- tends.(9) A suit is not abated- by the death or outlawry of a relator ; but in (4) Ld. Red. Tr. PI. p. T6. (5) Ld. Red. Tr. PI. p. 78 ; Johnson v. Leake or Peck, 2 Ves. 464. 3 Atk. 113. (G) Williams v. Cook, 10 Ves. 406; and see Horwoody. Schmedes, 12 Ves. 311. (7) See however Horwood v. Schmedes, ub. sup., Anon., 3 Atk. 691 : Ljrd Slowell v. Cole, 2 Vern. 296. (8) Ld. Red. Tr. PI. p. 79, and note (I) ; in such a suit if one of the plaintiffs dies after a decree,'his personal representative has a right to revive, Burney v. Morgan, 1 Sim. & Stu. 358 ; and where one creditor filed a bill on behalf of himself and other creditors, and a decree was made, and the plaintiif afterwards died, the Vice-Chan- cellor held, that another creditor might obtain an order to file a supplemental bill, if the representatives of the deceased plaintiff did not revive within a limited time, Dixon V. Wyaii, 4 Madd. 392. (9) Ld. Red. Tr. PI. p. 80. BILLS OF REVIVOR. 414 such case tte court suspends further proceedings until another rela- tor is appointed. (10) A bill of revivor of a bill of revivor lies.(ll) *CXLIX. Bill of revivor, {before decree) by the administrator of r *415 ] the plaintiff in the original suit, the executors named in his will having renounced probate. Humbly complaining showeth unto your lordship your orator C. D. of, &c., That J. A. late of, &c. but now deceased, on or about Original bill exhibited his original bill of complaint in this honorable court exhibited by J. against G. T. W. as the defendant thereto, thereby stating such seve- ' ral matters and things as are therein for that purpose more particu- larly mentioned and set forth, and praying, &c. And your orator The defendant further showeth that process duly issued against the said defendant, being out of but he being in Ireland and out of the jurisdiction of this honorable tllfn '^n"ifher court he neither appeared nor put in his answer to the said bill. And appeared nor your orator further showeth that by an order bearing date on or answered. about the day of upon the said J. A. consenting, &c. ^'^ ^der And your orator further showeth that process was sued out and served ^^jg^j^Yn ap- in pursuance of such order, and that the said defendant thereupon pearanoe was appeared and put in his answer to the said bill of complaint. And entered and your orator further showeth that on or about the day of answer put in. the said defendant caused this honorable court to be moved, that he ^^„^*!°f^"'^Ti" might be at liberty to sue out execution against the said complainant der obtained J. A. in the aforesaid action, and thereupon the said J. A. consent- by the defend- ing by his counsel, &c. And your orator further showeth that in f.^'T^A^^*'"^ 1.1 • 1 ■> 1 "^ • 1 <./) T.i.' tiff J. A. paid pursuance oi the said order the said sum of £ was by the time ^^ a sum of therein directed paid into the bank with the privity of the Account- —i, which ant-General, and was afterwards laid out by him in the purchase of was inyested £ three per cent, consolidated bank annuities, which are now countant standing in the name of the said Accountant-General, in trust in this General's cause, together with a sum of £ in cash, which hath arisen from name. the dividends thereof. As in and by the said original bill, &c. And Proceedings your orator further showeth that some proceedings have been had ^^'^tgf°^„j*'^* before the said Master to whom this cause stands referred, but no j^jg general re- general report hath yet been made in the said cause ; and that the port not yet said J. A. lately and on or about departed this life having first ^<>-^^- made and published his last will and testament in writing, bearing ■'^j^^^^;^*^ ^^^. date , and a codicil thereto bearing date , and thereby ap- ^^^ ^^d'g a pointed M. C. and W. W. executors thereof. And your orator will and codi- further showeth that the said M. C. and W. W. have renounced pro- "^'^PP°^*^°f bate of the said will and codicil of the said J. A. deceased, and de- J^°(,^^ave clined to act in the trusts thereof, and that your orator hath obtained sincerenouuc- letters of administration with the will annexed of the goods chattels ed probate. (10) See the authorities collected in note (a), 1 Swanst. 305. (11) Hardr. p. 201. See further on the subject of bills of revivor, 2 Madd. Oh.Pr. 526, et seq.; Bolton v. Bolton, 2 Sim. & Stu. 371 ; Gordon r. Bertram, 1 Mer. 154. 415 BILLS OF REVIVOE. Administra- tion granted to the plain- tiff; [ *416 ] his title to re- vive, and to have the ac- counts direct- ed, prosecuted and carried on. Prayer. rights and credits of the said J. A. deceased to be granted to him by and out of the proper Ecclesiastical Court, and hath thereby become and now is his legal personal representative. And your orator fur- ther showeth that the said suit and proceedings having become abated by the death of the said J. A., your orator is, as he is advised, as the personal representative of the said J. A., entitled to have the said suit and proceedings revived against *the said defendant G. T. W., and the said accounts by the aforesaid order directed, prose- cuted and carried on, and to have the said cause put in the same state and condition as the same was in previously to the death of the said J. A. To the end therefore that the said defendant may answer the pre- mises ; and that the said suit and proceedings which so became abated as aforesaid may stand revived, and be in the same plight and condi- tion as the same were in at the time of the death of the said J. A., or that the said defendant may show good cause to the contrary. May it please, &c. Pray subpoena to revive and answer against Q. T. Tr.(12) CL. Bill of revivor upon the marriage of the female plaintiff. Humbly complaining show unto your lordship your orator and Original biU oratrix A. B. of , and E. his wife, That on or about your exhibited. oratrix by her then name of E. M. exhibited her original bill of complaint in this honorable court against and W. M. as de- fendants thereto, thereby stating such several matters and things as are therein for that purpose more particularly mentioned and set forth, and praying, &c. And your orator and oratrix further show that the said several defendants being duly served with process of subpoena severally appeared and put in their answers to the said ^ original bill. As in and by, &c. And your orator and oratrix further show that your oratrix took several exceptions to the answer put in by the said defendant W. M. to the said original bill, and which said exceptions were upon argument allowed by the Master to whom the same were referred. And your orator and oratrix further show that your oratrix afterwards obtained an order of this honorable (12) May it please your lordship to grant unto your orator his Majesty's most gracious writ of subpcena to revive [and answer'] issuing out of and under the seal of this honorable court to be directed to the said G. T. W. thereby commanding him at a certain day and under a certain pain to be therein limited personally to be and appear before your lordship in this honorable court, and then and there [to answer the premises and] to show cause if he cau why the said suit and proceedings therein had should not stand and be revived against him, and be in the same plight and con- dition as the same were at the time of the abatement thereof, and fui ther to stand to and abide such order and decree in the premises as to your lordship shall seem meet. And your orator shall ever pray, &c. Where it is only necessary to pray a subpa3ua to revive, the words within brackets should be omitted. Defendants appeared and answered. Exceptions ta- ken to the an- swer of one of the defendants which were allowed bythe Master. Order obtain- BILLS OF REVIVOR. 416 court to amend her said original bill, and that the said defendant ed to amend W. M. might answer the said amendments at the same time that *^ ^^^ ^^^ he answered the said .exceptions. And your orator and oratrix fendant^ mtght further show that before the said W. M. had put in his answer to the answer the said exceptions or any further proceedings were had in the said suit, amendments and on or about the day , your oratrix intermarried with tkins^atrtie *your orator W. M. whereby the said suit and proceedings became same time. abated. And your orator and oratrix are advised that they are en- r *4,l'j 1 titled to have the same revived, and to be put in the same plight and Marriage of condition as the same were in at the time of the abatement thereof, the plaintiffs, To the end therefore that the said suit and proceedings which so be- ^"'^ title -to came abated as aforesaid may stand revived, and be in the same plight "'^'^®- and condition as the same were in at the time of such abatement, or '^^^^'^' that the said defendants may show good cause to the contrary. May it please, &c. J. L. Pray subpoena to revive against all the de- fendants ; see note (12), antea, p. 416. CLI. Bill of revivor in a suit for tithes, against the personal repre- sentative of one of the defendants who had died before putting in his answer to the original hill. In the Exchequer. To, &c. Humbly complaining showeth unto your honors your orator E. B. of, &c. debtor, &c. \as inform No. 2, antea, p. 2,] That in or about Original bill vacation your orator exhibited his original bill of complaint in exhibited by this honorable court against , thereby stating as the truth is plaintiff that the said defendants then and for some time previously thereto, against sever- . were occupiers of lands therein, and had various titheable matters ^^ defendants. growing, arising and produced on their said lands which they had subtracted and withheld from your orator, and praying that, &c. As in and by, &c. And your orator further showeth that all the said ^^^ ^^^ defen- defendants appeared to the said bill of complaint, and that the said g^°*^ appear- J. B. and W. H. put in their answers thereto, but that the said T. F. had departed this life intestate on or about before any further Death of one proceedings were had in the said cause, without having put in any yithout hav- answer to the said bill of complaint, whereupon the said suit and ™^ answere . proceedings became abated as to him. And your orator further His father took showeth that J. F. of the father of the said T. P. hath pro- letters of ad- cured letters of administration of the personal estate and effects of ^ ^j^'^^aud the said T. F. to be granted to him by the proper Ecclesiastical possessed as- Court, and hath possessed the personal estate and effects of the said sets sufficient T. F. to a considerable amount, and sufficient to pay the debts and j°|?f'^ ^^^ funeral expenses of the said T. F., and is thereby become and now is hi& legal personal representative ; And your orator is advised that he 417 BILLS OF EEVIVOK. Title of the is entitled to have the said suit revived against the said J. F. in the plaintiff to re- game plight and condition as it was at the time of the abatement That the de- t^^ei^eof ^J t^e death of the said T. F. ; and that the said J. F. ought fendant ought to answer the said original bill of complaint, and ought either to to admit as- admit assets of the said T. F. sufficient to satisfy your orator's de- count°fort"h ™^°^s *claimed by the said original bill, or to discover and account personal es- for his personal estate as is usual in such cases. To the end there- tate. fore that the said suit and proceedings may stand and be revived, [ *418 ] and be in the same plight and condition as the same were at the time of the said abatement thereof; and the said J. F. may upon his oath and according to the best of his knowledge, remembrance, informa- tion and belief, full, true and perfect answer make to all and singular the matters and things in the said original bill stated, and that he may either admit assets of the said T. F. possessed by him sufficient to answer and satisfy the demands of your orator, or that he may in manner aforesaid answer and set forth a full, true and just account of all and singular the personal estate and effects which the said testator was possessed of, interested in or entitled to at the time of his death, and all the particulars whereof the same consisted, and the natures, kind, quantities, qualities, full true and utmost value of all and singular such particulars, and whether all or some and which of such particulars have not and when been possessed by the said de- fendant or by any person or persons and whom by name by his order or for his use, and how and in what manner and when and where and by whom and to whom and for how much the same and each and every part thereof have or hath been sold and disposed of; And whether any and what part or parts thereof and of or to what value and amount now remain undisposed of. Prayer. And that the said suit and proceedings so abated as aforesaid may be revived, and be in the same plight and condition as the same were at the time of the abatement thereof, or that the said defendant J. F. may show good cause to the contrary ; and that your orator may have the benefit of the said suit, and may have the same relief against th^ said defendant as is prayed by the said original bill of complaint; and that if the said defendant shall not admit assets of the said T. , F. possessed by him sufficient to answer the said demands of your orator against the estate of the said T. F., then that an account may be taken of the personal estate and effects of the said T. F. which have been possessed, got in and received by the said defendant J. F. or by his order or for his use, or which without his wilful default might have been got in, possessed or received, and that the same may be applied in discharge of such sum of money as may appear to be due and owing to your orator from the estate of the said T. F. in respect of the matters in the said bill of complaint mentioned. May it please, &c. Pray subpoena to revive and answer against J. F. ; see note (12), antea, p. 416. BILLS OE KEVIVOK. *419 **CLII. Bill of revivor hy trustees and executors against the custo- mary heir of one of the original defendants who was the customary heir of the testator and had died without having answered the original hill, the object of the suit being to carry the trusts of the will into execution. To &c. Humbly complaining show unto your lordship your orators R. B. of , W. P. D. of , H. D. of , and G. W. of , trus- tees and executors named and appointed in and by the last will and testament of J. B. deceased, late of , That your orators in or Original bill about Term exhibited their bill of complaint in this honorable ^^^g^m '^ *'"*' court against F. B. M. B. J. M. B. J. S. B. E. C. B. the reverend plaintiffs as W. H. W. and H. H. his wife, C. B. V. and B. his wife, J. B. and executors and L. B. thereby stating (amongst other things) that the said J. B. by '"'"^stees. his will bearing date the 31st day of May , gave and devised f '"""S the n 1 ■ 1 ,°, 1 • , y 1 ■■ 1 "^ 1 °i 111 T testator's will. all his real estates being partly freehold and partly copyhold, and the general residue of his personal estate to your orators their heirs executors administrators and assigns, upon certain trusts therein de- clared concerning the same, and stating that the said testator shortly after departed this life without having revoked or altered his said His death will, leaving J. B. one of the defendants thereto the eldest son of without re- L. B. deceased, the eldest brother of the said testator, his heir at tering the the common law, and leaving the said L. B. his youngest brother his same, leaving heir according to the custom of the said manor of C. of which the his nephew his said copyhold estates were holden, and stating that your orators as andhisyou^ng- the executors appointed in the said testator's will, duly proved the est brother his same in the proper Ecclesiastical Court, and took upon themselves customary the execution thereof, and were desirous of carrying into eifect the J*""' said trusts of the said testator's will, but that by reason of difficul- ^^^ by\he ties which have been suggested in the construction thereof, they plaintiffs; were advised that they could not safely execute the trusts thereof That difficui- ' except under a decree of this honorable court ; and praying that the ties had arisen will of the said J. B. might be established, and the trusts thereof ^^^^ onhe°" performed and carried into execution under the decree of this hon- trusts ; orable court, and that an account might be taken of the personal es- ^"^^ piaying tate and eifects of the said testator and of his real estates, your ora- ^jgVt'be^es- tors submitting to account for their receipts and payments in respect tablished, and thereof, and that an account might also be taken of the said testa- the trusts per- tor's funeral and testamentary expenses debts legacies and annul- an™ccount^' ties ; and that the said testator's real estate might be sold, and that might be ta- the said testator's personal estate and the proceeds of his said real kenoftheper- estate when sold might be applied in a due course of administration, ^^^l\f^l^^^' and that if it should appear upon taking such accounts that the said real estate^ the testator's assets were not sufficient after payment of the said testa- plaintiffs sub- tor's funeral and testamentary expenses and debts, to pay all his ^'"'"^J".^*^" legacies and annuities in full, then that it shouldbe declared whether account m%ht all or which of the said legacies and annuities given by the said will be talien of 419 BILLS OP REVIVOR. [ *420 J Tffere liable to abatement, and that all proper *accounts and inquiries the testator's might be directed for effectuating the purposes aforesaid and carry- debts, lega- ijjg jjjtQ execution the trusts of the said will, and also praying for nuUieT; th^t" further relief. And your orators further show unto your lordship the real es- that all the Said defendants appeared to the said bill, and all the tates might be gaid defendants except the said L. B. put in their answers thereto, p?oduTe^o-^ but that before any further proceedings were had in the said suit, the gether with Said Suit became abated by the death of the said L. B. the customary the personal jjgir of the Said testator, who departed this life on the day of piieT-^hltT 1823, leaving the defendant E. C. B. his youngest son and the assets heir according to the custom of the said manor, who accordingly should not claims such interest in the matters in question in this suit as were prove^suffi- yggted in the said L. B. as such customary heir as aforesaid ; and the"ieg°acies Jour orators are advised and humbly insist that they are entitled to and annuities, have the said suit and proceedings revived against the said E. C. B. ^""-^ h'^'h^' A ^^ *^® copyhold heir of the said L. B. deceased and heir to the said Safed which copyhold estates according to the custom of the said manor of C. in should abate, the same plight and condition as the same were at the time of the and that all death of the said L. B. To the end therefore that the said suit and countsamien- proceedings therein may stand revived against the saidE. C. B., and quiries might be in the same plight and condition as the same were at the time of the be directed, said abatement. And that the said E. C. B. as such customary heir That all the as aforesaid may answer your orator's said original bill and also the defendants present bill of revivor, and that your orators may have the benefit of answered ex- t^e Said suit and all the proceedings therein. May it please, &c. cept the ous- Fray subpoena to revive and an- tomary heir. g^g^ ^^g original bill and bill His death ^f ^^^i^Qj. against E. C. B. leaving his •' ,, „,^ , ^ ^ youngest son See note (12), antea, p. 416. his customary heir, claiming the same interest as the deceased. The plaintiff's title to revive. Prayer. CLIII. Bill of revivor by the executor of the -plaintiff in a cross bill against the defendants thereto, two of them not having answered. To, &c. Complaining(13) showeth unto your lordship your orator the Original bill most honorable J. B. W. G. Marquis of S., That in or about the exhibited by month of April 1822, G. J. of, &c. esq. and C. his wife, formerly C. G. J. and his g_ gpjngter, exhibited their bill of complaint in this honorable court ^' ^' against B. G., E. H., W. A. H., A. S. and H. S. S., stating as therein Praying that Stated, and praying that the said G. J. and C. his wife in right of the he in her right said 0. J. might be declared by the decree of this court to be entitled might be de- y^jer the covenant and trusts of an indenture therein mentioned, under the bearing date the 5th of May 1773, to one full third part or share of trusts of a the sum of .£5674, 3 per cent, consolidated bank annuities, and that (13) See note (c), antea, p. 2. BILLS 01 REVIVOR. *421 *the said B. Gr. might be directed to transfer the same to the said deed to one G. J. in right of his said wife for his own use and benefit, and that *^"^ °i\^T they the said G. J. and 0. his wife might in like manner be declared "ji/ a "vidends entitled to one-third part of the dividends or interest that had thereof; accrued on the said sum of 5674Z. 3 per cent, consolidated bank annuities from the month of December 1791, and that an account *at an ac- might be taken under the directions and decree of the court of the be'tek^'^o'f' said dividends and interest from the time last-mentioned which had the arrears ac- been or which might have been received by T. H. therein mentioned, orued due re- and the said B. Gr. or either of them, or with their knowledge privity S.""^^'^ ^^ '^- and concurrence during the life of the said T. H. or since his decease and B. G. by the said B. G. ; and that the said E. H. and W. A. H. might That the eze- be declared to make good such parts of the said dividends as should cutorsof t.h. appear to have been received by or which ought to have been re- ™e^d\o*mak ceived by their testator the said T. H. out of the said assets of the good so much said T. H., and that they might admit assets of the said testator as wasreceiv- sufficient for that purpose, or that an account might be taken of the ^^^^ J''™' estate and effects of the said T. H. come to their or either of their ^it assets suf- hands, and of the application thereof. And that the said B. G. ficient for that might be decreed to make good out of his own proper moneys what purpose, or should be found due to the said complainants in respect of the said accounts"^"^ dividends and interest of the said sum of 5674?., 3 per cent, con- might be ta- solidated bank annuities that had been or that might or ought to '^en; have been received, and which had been accordingly applied by him mig\?b^de- or with his knowledge privity or concurrence, and that it might be creed to make referred to one of the Masters of this honorable court to take the good so much said accounts, and praying for further relief. And your orator ^^ ^^^^^f"' nit ■ or rQis^nt iiSiVC further showeth unto your lordship that the said defendant B. G. been received appeared to the said bill and put in his answer thereto, and the same by him; bill having been amended, the said defendant appeared to the said And for a re- amended bill, and put in a further answer thereto. As in and by ^■^y^'T^^°\ the said bill and answers now as of record in this honorable court, t^e accounts. reference being thereto had will appear. And your orator further b. g. appear- showeth unto your lordship that on or about the 17th of April ed and an- 1823, the said B. G. exhibited his bill of complaint in this honorable swered; and . , ._,_ i,-,i. •/. T, -nAni 1 afterwards the court against the said tr. J. and U. his wire and the said A. b., thereby the bill was stating such several matters and things as are therein for that pur- amended, to pose stated, and praying that it might be declared by the decree of which he ap- this honorable court that the said G. J. and C. his wife were not en- g^ered. titled under the circumstances thereinbefore stated to call upon the q,.q^^ bjn ex- said B. G. to make good the dividends upon the said sum of 5674?. hibited by 3 per cent, consolidated bank annuities received by the said C. S. or ^- ^- against any part thereof, or if it should appear to this honorable court that ^[^^ ^^^ ^ the said B. G. was liable to make satisfaction for the same or any s. praying part thereof, then that the said B. G. might be declared entitled to tl^^t it might be repaid such sum as he should be obliged to pay in respect of the that G ^J^and aforesaid claim out of the assets of the said testator C. S. come to his wife were the hands of the said A. S. as his personal representative, or of any not entitled to other person by his order or for his use : and that the said A. S. call upon B.G. .,l^_ J «,. . ^ rt r\ rr • , p ,^ tO make gOOd might admit assets of his said testator o. C. sumcient tor that pur- p *4oo i pose *or otherwise that an account might be taken of the personal •- -I 422 BILLS OF REVIVOR. the dividends received by 0. S., or if B. G. was liable, then that he might be re- paid the same by the person- al representa- tive of 0. S. out of his as- sets, and for the usual ac- counts there- of. That the de- fendants ap- peared, and G. J. alone put in his answer. Death of B.G. having ap- pointed the plaintiff by his will sole exe- cutor, who hag since proved the same Title to revive the proceed- ings in the cross suit. Prayer. estate and effects of the said 0. S. received by the said A. S. or by his order or for his use, or which without his wilful neglect might have been received by him, and of the application thereof, and that the said testator's personal estate might be applied so far as the same would extend in satisfaction to the said B. Gr. of what he should be compelled to pay to the said G. J. and 0. his wife in respect of their aforesaid claims, and also praying for further relief. And your orator further showeth unto your lordship that the said G. J. and C. his wife and A. S. being duly served with process ap- peared to the said bill, and the said G. J. alone put in his answer thereto. As in and by the said bill and answer now as of record in this honorable court, reference being thereunto had will appear. And your orator further showeth that before any further or other pro- ceedings were had in the said cause the said B. G. departed this life, having first duly made and published his last will and testament in writing bearing date on or about the day of , and thereof appointed your orator sole executor, and your orator hath since his decease duly proved the said will in the proper Ecclesiastical Court, and thereby become his legal personal representative. As in and by the said will or the probate thereof when produced will appear. And your orator further showeth that the said suit and proceedings having become abated by the death of the said B. G., your orator is, as he is advised, as the personal representative of the said B. G., entitled to have the same suit and proceedings revived against the said G. J. and C. his wife and the said A. S. to the same plight and condition in which the same were at the time of the death of the said B. G. To the end therefore that the said suit and all the proceedings therein may stand revived against the said G. J. and C. his wife and the said A. S., and be in the same plight and condition as the same were at the time of the said abatement, or that the said defendants may show good cause to the contrary ; and that the said C. J. and A. S. may answer the said original bill, and that your orator may have the benefit of the said suit and of all the proceedings therein. May it please, &c. Pray subpoena to revive and an- swer against Gf. J. and 0. Ms wife, and A. S. see note (12), antea, p. 416. Original bill exhibited. CLIV. Bill of revivor (after a decree) against the surviving exe- cutor of one of the defendants since deceased. States that some time in or about Term L. P. now de- ceased exhibited his original bill of complaint in this honorable court against S. N. and E. his wife, &c. &c., stating as therein is stated and praying that, &c. That the said S. K and E. his wife being duly served with process [ *423 ] ^appeared and put in their answers to the said bill, but before any Two of the de- further or other proceedings were had in the said cause, the said BILLS OF REVIVOR. ' 42? L, P. departed this life intestate, leaving R. P. her son and heir at fendants an- law, who after her decease duly administered to her, and thereby swered. became her legal personal representative. '^MnUff^ *''^ That the said suit and proceedings having become abated by the ^^^. . ' death of the said L. P., plaintiff exhibited his bill of revivor in this tion taken out honorable court against , praying that the said suit and proceed- by her heir at ings might he revived against the said R. P. and by an order of the ^^^• court the same were accordingly revived. ^'hibU^d^" "^ That all the said defendants having put in their answers to the ^jj ^^^ / j. ^_ said bill, the same came on to be heard before his honor the late dants haTing Master of the Rolls on or about, &c. when his honor did order and answered, the decree, &c. hta^dlnd'. That before any further or other proceedings were had in the said decree pro- cause the said S. N. departed this life, having first duly made and nounced. published his last will and testament in writing dated , and thereof Death of one appointed his said wife E. N. and the defendant T. R. executrix and °^^^^ defend- executor thereof, who duly proved the said will in the proper Eccle- „. ' siastical Court and took upon themselves the burthen of the execu- „. ' tion thereof, and the said E. N. hath since also departed this life proved bv the leaving the said defendant T. R. her surviving, and who is now the executors, sole personal representative of the said S. N. deceased, and as such Death of one entitled to the principal sum of £ and interest due from the said p^ ti^e™) who G. H. to the said S. N. and secured by way of mortgage upon his the titled to the said 0. H.'s share of the said estate and premises in the pleadings principal and mentioned for a term of years ; and the said suit and proceed- interest se- ings having become abated by the death of the said S. N., plaintiff mo'rtgage°of is advised that he is entitled to have the same revived against the the share of G. said T. R. as his surviving executor. H- To the end therefore that the said suit and proceedings which T'tle of the became so abated by the death of the said S. N. may stand and be ^ive^*' *° '^" revived against the said T. R., and be in the same plight state and p^aygr condition as the same were in at the time of the abatement thereof; and that plaintiff may have the benefit thereof, or that the said de- fendant T. R. may show cause why the said suit and proceedings should not be so revived, and that the same may be revived accord- ingly. May it please, &c. Pray subpoena to revive against T. R. *OLV. Bill of revivor {after a decree and proceedings had before the [ *424 ] Master) against the heir at law of the mortgagor the original de- fendant deceased. A bill of revivor having been formerly exhibited against the original defendant by the plaintiffs as the executors of the plaintiff in the original bill, the mortgagee deceased. To, &c. Humbly complaining show unto your lordship your orators and Original bill oratrix A. B. of 0. D. of and E. F. of widow, That exhibitedby J. 32 424 BILLS OP REVIVOR. F. agaiQst T. in or about J. F. late of (since deceased) filed his original H. who ap- i,\\\ ijj ^];ijg honorable court against T. H. (since deceased) as defen- i'n^hTs'^rns'^we"' ^^^^ thereto, thereby stating such several matters and things as in the said original bill of complaint are for that purpose more particu- larly mentioned and set forth, and praying, &c. And your orators and oratrix further show that the said T. H. being duly served with process appeared to the said original bill and put in his answer there- Decree made to ; and the said cause being at issue the same came on to be heard by the Master before his honor the Master of the Rolls in the absence of your lord- th*'^b^°'^^ ^° ship, when the court was pleased to order and decree, &c. And your the Lord orators and oratrix further show unto your lordship that before any Chancellor, further proceedings were had in the said suit and on or about Death of the the said J. F. departed this life having first duly made and pub- plaintiff, lished his last will and testament in writing bearing date , and His will. thereby appointed your oratrix and also L. M. and N. 0. executrix and executors of his said will, and having afterwards made and A codicil published a codicil to his said will bearing date , whereby he afterwards revoked the appointment of the said L. M. and N, 0. to be his in'^'^th'^a^ executors, and appointed your orators to be his executors jointly pointment of with your oratrix in the place and stead of the said L. M. and N. 0. ; two executors, And your orators and oratrix afterwards duly proved the said will and appoint- ^^^^ codicil in the Prerogative Court of the Archbishop of Canter- ing others. , iiii i iiii The ill and "'^'"J' ^"^^ thereby became and now are the legal personal repre- codicil proved sentatives of the said J. F. deceased. And your orators and oratrix by the plain- further show unto your lordship that the said suit haying become tiffs; abated by the death of the said J. F., your orators and oratrix on Bill of revivor ^^ about filed their bill of revivor in this honorable court filed by them against the said T. H. thereby stating to the effect aforesaid, and against the praying, &c. And your orators and oratrix further show that the fendant ^' ^^^^ ^^^^ ^^^ proceedings were accordingly duly revived by an order The proceed- of ^^^^ honorable court bearing date . As in and by, &c. And iugs duly re- your orators and oratrix further show unto your lordship that some vived. proceedings have been had before the said Master to whom this cause h'^^'h^f ™^\ stands referred, but no report hath yet been made thereon ; and that Master but no ^^ ^r about the Said late defendant T. H. departed this life report made, leaving B. H. of (the defendant hereinafter named) his heir Death of the at law, and without having devised or in any manner disposed of defendant T. jjje equity of redemption of and in the said mortgaged premises, leaving E H And your orators and oratrix further show unto your lordship that hisheiratlaw. *the said Suit having become abated by the death of the said late [ *425 1 defendant, your orators and oratrix are, as they are advised, as such Title of the executors and executrix as aforesaid, entitled to have the said suit plaintiffs to and proceedings revived against the said E. H. as the heir at law of revive. the said T. H., and to have the said decree and other proceedings had thereon prosecuted and carried into full effect against the said E. H. in like manner as they could or might have had if the said Prayer. late defendant had been still living. To the end therefore that the said E. H. may show cause if he can why the said suit and proceed- ings therein should not stand and be revived against him as such heir at law of the said late defendant as aforesaid, and be in the same plight and condition as the same were in at the time of the BILLS OF KEYIVOR AND SUPPLEMENT. 425 abatement thereof; and that the said suit and proceedings bad therein may stand and be revived accordingly. May it please, &c. Pray subpmna to revive against E. H. ; see note (12), p. 416. SECT. III. BILLS OF REVIVOR AND SUPPLEMENT. If a suit becomes abated, and by any act besides the event by which the abatement happens the rights of the parties are affected, as by a settlement,(l) or a devise(2) under certain circumstances, though a bill of revivor merely may continue "the suit so as to enable the parties to prosecute it, yet to bring before the court the -whole matter necessary for its consideration, the parties must by supple- mental bill added to and made part of the bill of revivor, show the settlement, or devise, or other act by which their rights are affected. And in the same manner, if any other event which occasions an abatement is accompanied* or followed by any matter necessary to be stated to the court, either to show the rights of the parties, or to ob- tain the full benefit of the suit, beyond what is merely necessary to show by or against whom the cause is to be revived, that matter must be set forth by way of supplemental bill added to the bill of re- vivor. (3) A bill of revivor and supplement is a compound of those two spe- cies of bills, and in its separate parts must be framed and proceeded upon in the same manner. (4) **CLVI. BiU of revivor and supplement against the administrator [ *426] of the defendant to the original bill which was fled for discovery in aid of a defence to an action, and for a commission to examine witnesses abroad ; the defendant having died abroad without hav- ing put in his answer. An injunction had issued to restrain pro- ceedings at law. {The interrogatories are inserted.) In the Exchequer. To, &c. Humbly complaining showeth unto your honors your orator T. S. (1) See Merrewether v. Mellish, 13 Yes. 161, 2. (2) See Rylands v. Latouche, 2 Bligh. P. C. 566. (3) Ld. Bed. Tr. PI. p. 10, 4th edit. •(4) Ld. Red. Tr. PI. p. 80. 426 BILLS OF REVIVOR AND SUPPLEMENT. Original bill of , debtor, &c. [see form No. 2, p. 2.] That in or as of Mi- exhibited by chaelmas Term your orator filed his original bill of complaint p^aintiff.^ in this honorable court against J. B. S. as defendant thereto,(5) and Staling that ^^^.t thereby after stating as therein mentioned, that in and before plaintiff was the month of October your orator Was commandant of his Ma- commandant jesty's ship or frigate called the H. which was then stationed or of a frigate; ^j-uizing off C. &c. and that on or about the 12th day of December homewIuS ■ 1°"'^ Orator departed on board the said ship from the said port of C. on his return voyage to E., and that on or about the 17th day His arrival at of March your orator arrived at the port of P. ; and that in or P. ; about the month of August being about seventeen months after The clearance the whole of the cargo of the said ship had been cleared, one J. R. of the cargo ; ^ acting on the behalf of the said J. B. S. required your orator to tion by^the " P^J ^^^ Sum of 40,000 milled hard dollars which he alleged had been agent of the part of the cargo of the said ship the H., and that the said J. R. A. defendant for produced to your orator a certain paper- writing purporting to be a 40*^000^ Xuars "^'^^ ^^ lading of 40,000 milled hard dollars shipped on board the alleged to said ship at C. aforesaid on the 20th day of November to be have formed delivered to J. J. G., ot in his absence to the said J. E. A. ; and that part t e ^^ ^^^ ^^^^ ^^ suci^x paper-writing your orator's name appeared to be Theprodnc- signed in a hand nearly resembling that of your orator; and that tion by him of your orator well knowing as the fact is, that he had not taken on board a paper pur- the said ship the H. the said 40,000 milled hard dollars which were a Mll'!ffl'a°ding "''s aforesaid claimed by the said J. R. A. on the behalf of the said J. thereof; and B. S., and had never signed any bill of lading thereof, refused to to which deliver or pay the said 40,000 milled hard dollars or the value thereof plaintiffs ^Q (.j^g g^jij j_ -Q g_ jjj. g^jjy other person on his behalf; and that the ed to he said J. B. S. in or as of Michaelmas Term commenced an signed ; action at law against your ora,tor in his Majesty's Court of King's The fact that Bench for the recovery of the value of the said 40,000 milled hard no such ship- (joHars; and after by the said original bill further stating and charg- merit lifici D66I1 . .. , ^ " made nor bill i^g as therein mentioned, it was prayed that tbe said defendant might r *427 1 ^^ *restrained by the order or injunction of this honorable court from ofiadin s' ^'^7 fupther proceedings in the said action at law already commenced ed by the by him, and from commencing or prosecuting any other action or plaintiff; proceeding at law in relation to the matters aforesaid or any of them ; the refusal by ^^^ jj^^j ygyj. orator might be at liberty to sue out one or more him to deliver . . •' . . °, . , , • , i or pay the Commission or commissions to examine your orator s witnesses abroad 40,000 dollars; touching or concerning the matters aforesaid or any of them. And And that the your orator further showeth unto your honors that process of sub- defendant had pceua was duly served on the agent of the said J. B. S. ; and that by an action for an Order of this court bearing date on or about the 11th day of De- the recovery cember and made upon an affidavit of the merits set forth in *^f *^ ™^"^ the said bill, it was ordered that an injunction should issue to restrain ' the said defendant his counsellors attorneys solicitors and' agents be m^ght be ^''O™ commencing or prosecuting any suit bill or plaint, or entering restraTned up any judgment, or suing out or levying any execution in any of the from all fur- courts of common law against your orator, touching or in any wise in^s au'a"'^' Concerning any of the matters or things contained in the said bill until (6) Videantea, p. 381. Form *OSXXVIII. BILLS OF REVIVOR AND SUPPLEMENT. 427 the said defendant should have answered the said bill, and it should and for a com- be otherwise ordered by this honorable court. And your orator fur- mission to ex- ther showeth unto your honors that such injunction as aforesaid was nesses abroad. duly issued in pursuance of the said^order, and the same was duly process of served on the solicitors or agents of the said defendant J. B. S. ; subpcena is- and that soon afterwards the said defendant sued out a commission ^"^^ ^^^ to take his answer to the said bill at L. ; and your orator joined the ggg^j ^f j^g said defendant in naming the commissioners in such commission, and defendant. the same was duly sent out to L. aforesaid ; but that before the said An injunction defendant put in his answer to the said bill, or any further proceed- fl?^*^,'? V'."'^ ings than as aforesaid were had in the said cause, the said J. B. S. merits. departed this life whereby the said suit and proceedings became The injunc- abated ; and that he left his son A. J. S. (the defendant hereto) him tion issued surviving, and that the said A. J. S. hath procured letters of admin- '^°' '° ''"- her life-time to the said dean and chapter of W. for a renewal of the plaintiffs de- lease in the said bill mentioned, and also the said testatrix's debts mands, and funeral expenses and legacies, with a large surplus. And your ora- also the de- tor further showeth unto your lordship that the said suit having be- ^^^^sed's debt, come abated by the death of the said M. W., your orator is advised Title to revive, that he is entitled to have the same revived and restored as against the said J. U. and W. D. to the same plight and ^condition to which [ *434 ] it was in at the time of the death of the said M. W., and to have the same relief against the said J. U. and W. D. as such executors as aforesaid, as he was entitled to against the said testatrix. To the END therefore that the said suit and proceedings so abated as afore- said may stand and be revived against the said J. U. and W. D. and be in the same plight and condition in which the same were at the time of the decease of the said testatrix, and that the said J. U. and W. D. may answer the several matters hereinbefore set forth by way of supplement, arid more especially that they may upon their respec- tive corporal oaths to the best and utmost of their respective know- ledge remembrance information and belief answer and set forth, Whether the said testatrix did not duly make and publish her last Interrogato- will and testament in writing of such date and to such purport and ries to the sup- effect as hereinbefore in that behalf mentioned and set forth, or of ^^atter"!*^^ some and what date purport or effect ; And whether the said J. U. and W. D. or one and which of them did not shortly and when in particular after the decease of the said testatrix, duly prove the same with a codicil thereto in the Prerogative Court of the Archbishop of Canterbury, and take upon themselves or himself the burthen and the execution thereof; And whether they or one and which of them have or hath not by virtue thereof possessed themselves or himself of all or some and what part or parts of the personal estate goods chattels and effects of the said testatrix to a large and what amount in value, and much more, and how much more than sufficient to an- swer and satisfy the aforesaid claims of your orator thereon, and also the said testatrix's debts funeral expenses and legacies, with a large and what surplus ; and that the said J. U. and W. D. may admit That the de- assets of the said testatrix come to their hands sufficient to answer Pendants may and satisfy the amount of the fine or fines due and payable from the ^^ ggt ^rth ' said testatrix in her life-time to the said dean and chapter of W. for the accounts a renewal of the lease in the said bill mentioned, or that they may of the personal set forth and discover a full true and particular account of all and ^^^ their ap- singular the personal estate goods chattels and effects of the said tes- pUcation tatrix possessed by or come to the hands of them the said defendants thereof. or either of them, or of any person or persons and whom by name by the order with the privity or for the use of them or either and which of them, together with the natures kinds quantities qualities full true and utmost value thereof and of every part thereof, and how and in what manner the same personal estate and effects and 434 BILLS OF EBVIVOR AND SUPPLEMENT. every part thereof have or hath been applied or disposed of, and what part or parts thereof now remain unapplied and undisposed of, ^ or outstanding unpossessed and unreceived. Prayer. And that the said suit and proceedings so abated as aforesaid may stand and be revived against the said defendants J. U. and W. D., and be in the same plight state and condition in which the same were at the time of the decease of the said defendant M. W., or that they respectively may show good cause to the contrary. And that the said J. U. and W. D. may admit assets of the said testatrix come to their hands suiEcient to answer and satisfy the amount of the fine or fines due and payable from the said testatrix in her life-time to the said dean and chapter of W. for a renewal of the lease in the [ *435 ] *said bill mentioned, or that an account might be taken by and under the direction and decree of this honorable court of the personal estate and effects of the said testatrix, and of her debts funeral and testa- mentary expenses and legacies, and that all usual and proper direc- tions may be given for that purpose. May it please, &c. \_See note (12), p. 416.] Pray subpoena to revive and answer the supplemental hill against J. U. and W. B. *OLIX. Bill of revivor and supplement [after a decree) hy one of the defendants to the original hill, and the widow and heir at law of the other defendant, since deceased, against the executrix of one of the plaintiffs in the original hill, since deceased, and the assignees of the other plaintiff, who had become bankrupt, and also against the bankrupt, [the plaintiffs in the original bill being executors and trustees under a will had been examined upon interrogatories ;) — praying to have the accounts directed by the decree carried on, an account taken of the testator's personal estate and of the reiits of his real estate possessed by the deceased executor since his ex- amination, or by the executrix of - such executor since his death, and that she may admit assets sufficient to answer the same, or that the usual accounts may be taken of his personal estate; also to have an account taken of the testator's personal estate and of the rents of his real estate possessed hy the bankrupt since his examina- tion, and that the amount may he proved under the commission issued against him, and that his assignees may also account for so much thereof as they may have received. In Chancery, To, &c. Original bill Humbly complaining show unto your lordship your oratrixes and exhibited by orators E. C. of , M. P. of , widow, and J. P. of , J. w. and A. r^^^^ j_ Tj^_ j^te of , deceased, and A. G. of , trustees and BILLS OF REVIVOR AND SUPPLEMENT. 435 executors of the last will and testament of S. P. late of , de- G. as execu- . ceased, exhibited their original bill of complaint in this honorable ^°'^^. °f S. P. court in or as of Easter Term , against J. P. late of , gent, and E.'c' ^' since deceased, second cousin and heir at law of the said testator S. That the Mas- P., and your orator E. C, &c. [stating iJip- proceedings and the de- ter proceeded cree made in the cause.'] As in and by il.e said bill and other pro- '^^ ^^'^^'^s the ceedings now as of record in this honorulile court will appear. recteTbVthe That in pursuance of the said order the said Master proceeded in decree, and J. taking the accounts therein directed, and the said J. W. and A. G. ^- and A. 6. were examined upon interrogatories before him. ^5'' examm- m, iiU •iTir ■ f 1 • 1 1 1 ed upon inter- inat the said Master in pursuance oi the said decree caused an rogatories, advertisement to be inserted in the London Gazette for the next of An advertise- kin of the said testator to come in before him and prove their rela- ™™t pubUsh- tionship, when your oratrix E. C. as one of the next kin, and *the of kin''oA?e said J. P. deceased as one other of the next of kin and the heir at testator to law of the said testator, put in their claim before the said Master, come in. and several other claimants also appeared, but before the said Master [ *436 ] made his report upon the several matters to him referred, as herein- E. C, and J. before mentioned, and on or about the day of May the P- si°ce de- said J. P. departed this life, whereby the said suit and proceedings thdr cla^im-'" as to him became abated. and several That the said J. P. died intestate, leaving your oratrix M. P. his other claim- widow, your orator J. P. his only son and heir at law, and M. P. ^°^^ ^^° f-P" and M. J. P. his only other children, his next of kin surviving him ; fore the Mas- and your oratrix M. P. his widow hath obtained letters of adminis- ter's report J. tration of the estate and effects of the said J. P. deceased, to be f\'^!^'^ '°''.^^' granted to her by the Prerogative Court of the Archbishop of Can- ptaintift^^Mlp^ terbury, and is thereby become the legal personal representative of his widow J. the said J. P. deceased. P- ^^^ i^^ir at That on or about the day of February the said J. W. Jfther^'cMr departed this life, having first duly made and published his last will ren, his only and testament in writing bearing date the 15th of November , next of kin. and thereby appointed A. M. of , sole executrix thereof, who Letters of ad- hath since duly proved the same in the Prerogative Court of the g/anted to his Archbishop of Canterbury, and taken upon herself the execution widow M. P. thereof, and by virtue thereof possessed herself of personal estate Death of the and eifects of the said J. W. more than sufficient to answer and plaintiff J. W.; satisfy the personal estate aikd effects and rents and profits of the His will; and real estate of the said testator S. P. possessed by the said J. W. in of°by A. M.'^^" his life-time ; and the said A. M. hath also possessed herself of con- the executrix siderable other personal estate and effects of the said testator S. P. '^^° ^^^ P°s- unpossessed by the said J. W. in his life-time, and applied the same ^^ ^jg ^^^^ ^ to her own use. cient to an- That on or about the 3d November a commission of bankrupt swer the as- under the great seal of Great Britain, was duly awarded and issued jator^S*'? '^^" against the said A. G. under which he was duly found and declared possessed by to be a bankrupt by the major part of the commissioners in the said him, and has commission named, and J. I. of , T. E. of , and E. R. C. ^jf ° P^f^^'f^'g^ of , were duly chosen assignees of the estate and effects of the set^softhe^es- said bankrupt, and the usual assignment thereof was made and exe- tator S. P. 436 BILLS 01' BBVIVOR AND SUPPLEMENT. A commission cuted to them by the major part of the commissioners in the said is'sue'faXst Commission named. th'e other That the Said J. I. T. B. and R. E. 0. have possessed themselves plaintiff A. G.; of a considerable part of the personal estate of the said testator S. P. and i;''R^C! po^sessed by the said bankrupt A. Q-. and remaining in his hands at chosen assig- *^® t™^ of his bankruptcy, and which they well knew the said A. Gr. nees, and the was only possessed of as trustee and executor of the said S. P. and usual assign- tj^at a suit was instituted in this honorable court respecting the same, toThem^°"'^ and they have also since the said bankruptcy possessed themselves That they "^ other part of the estate and effects of the said S. P. have posses- That in pursuance of the aforesaid order the said Master hath sed assets of proceeded in examining the several claims of the persons represent- p.^remaining " ^°S themselves to be next of kin to the said testator S. P. carried in inspecieinthe before him, and hath finally approved and allowed the claim of your hands of the oratrix E. 0. and the said J. P. deceased as the sole next kin to the bankrupt ; and gg^-^g_p_ [ 437 J *That the said suit and proceedings having become abated by the have also pos- deaths of the said J. W. and J. P. and the said A. G. having become parts of th? bankrupt as aforesaid, and the said A. M. as executrix of the said assets of the J. W. and the said J. I. T. E. and E. R. C. as assignees of the said said S. p. A. Gr. neglecting to revive the said suit and proceedings, your ora- That the Mas- trixes and orator are, as they are advised, entitled to have the same in"^ examining I'evived and restored to the same plight and condition in which they theclaimscar- were before they became abated by the deaths of the said J. W. and ried in before J. p.^ and to have the said accounts directed by the aforesaid decree i'™ed^hose''of '^^'^''i^*^ °^ against the said A. M. as executrix of the said J. W., and the plaintiff B. against the said A. G. and also against the said J. I. T. E. and B. C. andofJ.P. R. C. as assignees of the said A. Gr., and also to have an account deceased, as against the Said assignees as to what they have received of the assets sole next of °f ^^^ ^^^^ testator ; and the said A. M. ought to admit assets of the kin. said J. W. come to her hands sufficient to answer the estate and Plaintiffs enti- effects of the Said testator S. P. deceased, possessed by the said J. ^^^\^° '■®^^^® W. in his life-time, or by her since his decease, and the interest ac- parties°entl- cumulated thereon, or else to set forth an account of the said J. W.'s tied to revire estate and effects possessed by her, with the particulars and values have neglect- thereof, and to discover what parts thereof remain in her hands un- andto'^have ^-Ppli^d and undisposed of by her, and what part of the said J. W.'s the accounts estate and effects remain outstanding and undisposed of by her. To carried on THE END therefore, &C. &C. ^^d A*G^'and -^^^ *^** *^® ^^^^ ^' ^" ^"^^ ^' ^' ""^^ respectively set forth a his assignees. ^^^^ ^^^^ ^^^ particular account of the personal estate and effects of That A. M. t^e said testator S. P. outstanding and unreceived at the time of the ought to ad- said examination, and what part or parts thereof was or were after- mit assets, wards collected in and received by the said A. G., and by the said for *the "^estate '^- ^- previously to his decease, and by the said A. M. since his de- of her testator cease, and of what the same consisted, and how the same and every J- W'. part thereof hath been applied, and what is become thereof, and That A.M. and ^hat part Or parts thereof is or are now remaining outstanding and f-" ?■ ™^'^^®* unreceived. forth an ac- »ii -iaivt • ^ -i • count of the And that the said A. M. may either admit assets of the said J. W. personal es- come to her hands sufficient to answer the amount of the estate and BILLS OF REVIVOR AND SUPPLEMENT. 437 effects of the said testator S. P. possessed by the said J. W. in his tateofthetes- life-time, or that she may set forth a full true and particular account t^torS. P. not of all the said testator J. W.'s personal estate possessed by or come time 'of the to the hands of her or any person or persons by her order, or for her examiaation, use, together with the particular natures quantities qualities and ^^^ since re- true and utmost value thereof, and of every part thereof; and may g.' ot*^ the dt- set forth and discover how she has applied and disposed of such per- ceased J. w. sonal estate and effects and every part thereof, or so much thereof 05 by 4- ^• as she has applied and disposed of, and what parts thereof, remain j'"*;!*"^/! .u Tj 1 T ic-ii iT^ n 1 .IT death, and the unapplied and undisposed of by her, and what part of the said J. application W.'s personal estate remain outstanding and unpossessed by her. thereof, and And that the said A. G. may also set forth a full true and particular ^^''tft^^^'^™^'"^ account of all the personal estate and effects of the said testator S. ^hat A M^" P., and of the rents and profits of his real estate which have been may admit as- received by him since the time of his swearing to his said examina- sets, or may tion, and how the same and every part thereof hath been applied ^®' ^°'''J' ^° and disposed of, and where and in whose custody possession *or p ^ . „„ -. power the same and every part thereof now is. And that the said L ^° A J. I., T. E. and B. R. C. as assignees of the said A. G. may set forth *^1f "Jtate an account of the personal estate of the said testator which hath spe- and the appii- cifically come to their or either of their hands or possession, and how cation thereof, and in what manner they have paid and disposed thereof. ^°4 '"'^^J ^^' And that your oratrixes and orators may have the benefit of the standing. said decree, and that the said accounts may be carried on, and that That A. G. an account may be taken by and under the direction and decree of may set forth this honorable court of all the personal estate and effects of the said f-" account of testator S. P. and the rents and profits of his real estate received by estate^a^nd* or come to the hands possession or power of the said J. W. subse- rents of the quently to the time of swearing to his said examination ; and also an ™a' estate of account of the personal estate and effects of the said S. P. and the ^' jii^^sin^e rents and profits of his real estate received by or come to the hands his examina- possession or power of the said A. M. since the decease of the said tioi> and the J. W. together with the particular nature quantities qualities and application true and utmost value thereof; and that the said A. M. may answer j^^^ ^^'^^ ^. what upon the taking of the said accounts shall be found due from assignees may the said J. W. out of his personal assets; and that she may admit in lilie manner assets come to her hands suflncient for that purpose, or that she may account. account for the personal estate of the said J. W. in the usual man- Player. ner ; and that an account may be taken of the assets of the said testa- tor S. P., and of the rents and profits of his real estates specifically come to the hands and possession of the said A. G. subsequently to the time of swearing to his said examination, and that he may account for the same, and that your oratrixes and orator or some person to be appointed by this honorable court may prove as a debt under the commission of bankrupt against the said A. G. and receive dividends thereon to be applied as the estate of the said testator S. P. in a due course of administration what upon the taking of the said accounts he shall appear to have received and misapplied before his bank- ruptcy ; and that the said J. I., T. E. and E. R. 0. may be decreed to account for the personal estate of the said testator S. P. and the rents and profits of his real estate specifically come to their hands and 438 BILLS OF REVIVOR AND SUPPLEMENT. possession, and that they may be decreed to pay what they shall ap- pear to have so received, and that the same may be distributed as part of the estate of the said testator S. P. ; and that the said A. M., A. G., J. I., T. E. and E. R. C. may respectively show cause if they can why the said suit and proceedings should not stand revived as against them, and be in the sanae plight and condition in which they were at the time of the abatement thereof, and that the same may stand revived accordingly. \_Andfor general relief ; see form VIII. p. 5, and note (12), p. 416.] Pray subpoena to revive and answer against A. M. A. Cf. J. I. T. U. and E. B. 0. [ *439 ] Original bill exhibited. All the de- fendants ap- peared, but three only have put in their answers. Order made for paynaent of money into court. Supplemental maiter, — Commission of bankrupt is- sued against J. A. the younger. Assignment and bargain and sale exe- cuted to his assignees. *CLX. Bill of revivor and supplement hy all the original plaintiff s except one since deceased, against his heir at law and executor who was a defendant to the original bill and had become bankrupt, and also against the surviving assignee under the commission of bank- rupt issued against him. Humbly complaining show unto your lordship your oratrixes and orators S. P. of E. U. of R. A. of and G. T. W. of and A. his wife, That on or about the day of your oratrixes and orators together with J. A. the elder gentleman since deceased, exhibited their original bill of complaint in this honorable court against J. A. the younger of S. A. of and J. K. of (three of the defendants hereinafter named) and , thereby stating such matters and things as are therein for that purpose more particularly mentioned and set forth, and praying that, &c. And your oratrixes and orators further show that all the said defendants being duly served with process appeared to the said bill, but that only the said defendants J. A. the younger, S. A. and J. K. have put in their answers thereto. And your oratrixes and orators further show unto your lordship that by an order bearing date , it was ordered, &c. {^That the said defendants should pay into the bank the money admitted by their answer to be due.'\ As in and by the said bill answers and proceedings now remaining as of record in this honorable court reference being thereunto had will appear. And your oratrixes and orators further show unto your lordship by way of supplement, that on or about a commission of bankrupt under the great seal of Great Britain was duly awarded and issued against the said defendant J. A. the younger, and that he was there- upon duly found and declared bankrupt, and the usual assignment of his personal estate and effects and a bargain and sale of his real estate were made and executed by the major part of the commis- sioners in the said commission named and authorized to the said complainant J. A. the elder and R. B. of (another defendant hereto), and were duly chosen assignees by the creditors for that purpose. As in and by, &c. And your oratrixes and orators further BILLS OF REVIVOE AND SUPPLEMENT. 439 show unto your lordship that on or about the day of the Death of one said complainant J. A. departed this life, leaving the said defendant °^J'^^ P'^^i"- J. A. the younger his heir at law, and having first duly made and a'isooTeofThe published his last will and testament in writing bearing date , assignees ; and thereby appointed M. C. and W. W. the executors thereof; and His will, and the said M. C. and W. W. having announced the probate of the said t''"' *u exe- will, letters of administration with the said will annexed bearing date ^l^f^A^' „ , 1 J11 T-\i--i/-i 1 nounced pro- nave been granted by the proper Jacclesiastical (Jourt to the bate thereof; said defendant J. A. th« younger, who hath thereby become and now Administra- is the legal personal representative of the said complainant J. A. de- *'?" ^'*'^ '■^^ ceased. And your oratrixes and orators further show unto your lord- granted" to J ship that the said defendant R. B., as the surviving assignee of the a. the young- said defendant J. A. the younger under the commission of bankrupt e'' tiis heir at awarded against him as aforesaid, claims to be entitled to all right *^^' and interest of the said defendant J. A. the younger under the will vi^'iL'tss^"-' of the said *testator K. A.; and that the said suit and proceedings j- .ki in°-i having become abated by the death of the said complainant J. A. your «- ' oratrixes and orators are advised that they are entitled to have the ,jjg interest of same revived against the said defendant J. A. the younger as the per- the bankrupt sonal representative of the said complainant J. A. deceased and to under the will prosecute the same against the said R. B. as the surviving assignee of the said defendant J. A. the younger. plaintiff tcTre- To the end therefore that the said suit and proceedings which so vive. became abated as aforesaid may stand revived and be in the same Prayer. plight and condition as the same were in at the time of such abate- ment, and that your orators may have the benefit of the said suit and proceedings against the said R. B. as the assignee of J. A. the younger. [And for further relief.'] J. L. CLXI. Bill of revivor and supplement [after a decree) against the executors of a deceased defendant, who was one of the executors and trustees under the original testator s will, and also a receiver appointed in the cause, praying to have the accounts directed hy the decree prosecuted, receivers appointed as to real estate and outstanding personalty ; that the clear residue of the original testator's estate may he ascertained and one moiety secured for the benefit of the plaintiff during his minority ; also to have an ac- count taken of the moneys invested by the deceased executor in trust for the plaintiff, and of the rents of the plaintiff's estates received by the deceased, and that the same may be paid out of his assets or that the usual accounts may be taken thereof. States that plaintiff in or about — — Term ■ by S. H. esq. Original bill his next friend, exhibited his original bill of complaint in this honor- exhibited by- able court against therein stating the will of the said testator ^^'^("^y h'is'"' G. B. the elder so far as, &c. and thereby praying that, &c. [Stating next friend. the prayer, — the proceedings in the cause, the appointment of Cr. B. the munger as receiver, and the decree made on the hearing.'] 33 440 BILLS OF REVIVOE AND SUPPLEMENT. Supplemental And further stating by way of supplement, that the said testator matter,— Q B_ tijg elder in and by his last will and testament stated in plain- te^suTo^'l will *#'s said original bill, also amongst other things gave and bequeathed more fully and all other his leasehold messuages, &c. And by a codicil to his said a codicil -will bearing date , the said testator revoked the bequest of his thereto; leasehold house in, &c. which by his said will he had given, &c. and directed, &c. and his death, That the Said testator G. B. the elder departed this life soon after making and publishing his said will and codicil thereto, without re- voking or altering the same or either of them, save as the said will is altered by the said codicil, and that upon or soon after the said tes- and probate of tator's decease the said G. B. the younger and S. H. duly proved the will and the Said will and codicil in the Prerogative Court of the Archbishop executors^ ^^^ ^^ Canterbury, and took upon themselves the execution thereof. That the tes- ^^^^ *^^ ^^^^ testator G. B. the elder was at the time of his de- tatorwaspos- cease possessed of interested in and entitled unto a very large and sessed of large ^considerable personal estate consisting of, &c. and other effects to tat'e""^^ ^^' * considerable amount or value in the whole ; and that the said S. r *4.41 1 ^' 'i^^ing '^ft t^6 whole management of the said testator's affairs to j- -' the said G. B. the younger his said co-executor, the said G. B. the cutorG.B.the younger under and by virtue of the said will and codicil and the pro- yonnger man- bate thereof possessed got in and received all or the greatest part of aged and re- tjje said testator's debts and moneys outstanding due and owing to "^'^'tf-H^ L*^^ him at the time of his decease, and sold and disposed of all his stock property ana -t re- -i -ni •• i-l ti_ paidthedebts, ana effects, and received the moneys arising thereby, and thereout &c. paid and discharged all and singular the said testator's funeral ex- penses debts and legacies ; and he the said G. B. the younger also from time to time received the rents and profits of the said leasehold estates and premises, and the interest and dividends of the said tes- One moiety of tator's personal estate out at interest, and applied one moiety thereof the rents, &c., to his own use, and the other moiety thereof he laid out in the funds laid out by j^ interest in the ioint names of himself and the said R. B. for the him in trust ,,./.,..%. ,, . ,..,.. for the plain- benefit ot plaintijj, and there now remains standing in the joint tiff. names of on that account the sums of £> 4 per cent, bank annuities and £ New S. S. A. Large arrears That at the time of the decease of the said G. B. the younger there due from him ^^g ^Igo a considerable sum of money coming due and owing from as rec i . j^j^^ -^^ respect of what he had received on account of the rents and profits of the estates devised by the said will in trust for the benefit oi plaintiff , as the receiver appointed thereof in manner aforesaid, as also on account of the rents and profits received before he was ap- pointed receiver. Death of G. B. That the said G. B. the younger died leaving the said S. H. his the younger, co-executor Surviving, who thereupon became and is the surviving execut^r"sur- ^^8*^ personal representative of the said testator G. B. the elder ; Tiving.. and he the said S. H. together with the said G. R. are the surviving trjstees of the said testator's residuary personal estate upon the trusts aforesaid. His wiu, That the said G. B. the younger in his life-time duly made and published his last will and testament in writing bearing date , and thereby appointed his wife Z. A. B., the said S. H. and G. R. BILLS OF REVIVOR AND SUPPLEMENT. 441 and T. D. executrix and executors of his said will, and that the said S. H., Gr. R. and T. D. have since the death of the said Gr. B. the younger duly proved his said will in the proper Ecclesiastical Court and probate and taken upon themselves the execution thereof and thereby became thereof by the and now are the legal personal representatives of the said testator ^^^<='^'<""^ : Q. B. the younger. That the said testator Gr. B. the younger died possessed of inter- That he died ested in and entitled unto a very considerable personal estate, and possessed of that they his said executors or some or one of them or some person p[y^gufficient or persons by their or some or one of their order, or for their or to answer the some or one of their use, have or hath possessed got in and received plaintiff's de- the same to a very large amount, and more than suflScient to pay and '""""^ ' discharge all his funeral expenses, &c. and particularly to answer and satisfy the demands of plaintiff thereon in respect of the mat- ters aforesaid; and no account hath as yet been rendered or taken of No account the said testator Gr. B. the elder's residuary personal estate, a moiety yet taken of whereof belongs to plaintiff, and a very considerable sum *of money ^^^^.^ ggtjJt^g '^j now remains due to plaintiff from the estate of the said Gr. B. the of what is ' younger in respect thereof, and so much thereof as hath been pos- coming to sessed or received by the said G. B. the younger deceased ought to P'^'°''*f be ascertained and paid out of the assets of the said G. B. the p ^449' -1 younger possessed and received by his said executors as aforesaid, as L " ^ also what is due from the said G. B. the younger deceased in respect of the rents and profits received by him as aforesaid. That the residuary personal estate of the said G. B. the elder yet That the dear remaining unacounted for, an account ought now to be taken thereof, residue ought and of the application and disposition thereof, and that the clear re- tained^^and' sidue thereof, ought to be ascertained, and one moiety thereof set one moiety in- apart and appropriated for the use and benefit of plaintiff under and vested for the by virtue of the said will of the said testator G. B. the elder ; and ^["j^^'g."^ ^^^ that an account ought also to be taken of the rents and profits of the t^at an ac- real estates belonging to plaintiff possessed or received by the said count ought to G. B. the younger in his lifetime as aforesaid. renTs'oT Ya'in'' That plaintiff is also as he is advised, entitled to have the suit tiff's^^states'" and proceedings which so became abated as aforesaid revived, and received by G. to have the same benefit thereof against the said defendants the per- ^- ^^^ sonal representatives of the said G. B. the younger as plaintiff could SL'?""^^'^' . ■ 11 IT • , ,1 -T /-I T. ,1 1 1 u 1. Title to revive, or might have had against the said G. B. the younger nad he been ^^^ ^g prose- living ; and that plaintiff is entitled to prosecute the decree made in cute the de- the said cause, and that some proper person ought to be appointed '='■^^1 ''.°. 5, and interrogate to the and the decree supplemental matters.'] reversed ; that ^^^ ^hat the said defendants may answer the premises ; And that tions ought to the Said suit and proceedings had therein may stand and be revived be dismissed, against the said , or that they may show good cause to the con- and the testa- trary ; and that the said cause may be heard on such supplemental law restrained I'l^'tter as aforesaid, at the same time that it is reheard on the said from applying original and supplemental informations ; and that the said decree to the Crown may be reversed ; and that the said several informations may be ami license ^"^ dismissed out of this honorable court ; and that in the meantime and and that the until the Said cause shall receive the further judgment of this hono- other defend- raible court, that the said defendant (the heir at law of the said be'^reTtrained ^''^ ^" ^'^ ^^^ ^^ restrained by the injunction of this honorable court from prosecu- from applying to the Crown for such charter and license as afore- ting the de- said ; and that the said defendants the Chancellor Masters and "^®' Scholars of the said University of C. may in like manner be restrained oueht uTbe"' ^^""^ prosecuting the said decree or proceeding in the said supple- revived, mental information ; And that your orator may have such further Prayer. and Other relief in the premises and under the circumstances herein- before particularly mentioned as to your lordship shall seem meet, and the nature of this case may require. May it please, &c. [see note (12), antea, p. 416, and forms No. 2, and 4, p. 6.] BILL TO CARRY A DECREE INTO EXECUTION. *449 *6. A BILL TO CARRY A DECREE INTO BXECUTI0N.(17) CLXIII, Supplemental hill filed hy infants ly their next friend against the plaintiffs and defendants in the original hill, praying to have the accounts directed hy the decree made in the original cause prosecuted ; the infants having heen horn since the decree was pronounced, and heing entitled under the will of their grand- father, in the event of their attaining twenty one, to a share of his real and personal estate in reversion expectant upon the decease of their mother; the supplemental hill charging the executors and trustees with neglect in not having duly invested the trust moneys according to the will. [The interrogatories are inserted.) To, &c. Humbly complaining show unto your lordship your oratrixes and orators M. A. B., B. G. B., and Gr. D. B. respectively, infants under the age of twenty-one years (that is to say) your oratrix M. A. B. of the age of years or thereabouts, your oratrix E. Gr. B. of the age of or thereabouts, and your orator G. D. B. of the age of or thereabouts, by J. L. of their next friend, That on or about Original bill your oratrixes' and orator's mother by her then name of M. B. exhibited by together with W. B. and G. D. B., being all then infants under the tlie pl^ii^tfa' ° /. 1 1 1 11 • -11 1 mother and age 01 twenty-one years but who have all since attained that age, by others against their next friend exhibited their original bill of complaint in this the trustees of honorable court against Sir J. M. hart. J. W., W. C. the younger, the^testator's B. B. and P. I. since deceased, as defendants thereto, thereby stating such several matters and things as are therein particularly mentioned and set forth, and praying that, &c. And your oratrixes and orator The defend- further show unto your lordship that all the said defendants being ants appeared duly served with process appeared and put in their answers to the t^eir^answers said original bill, and the said cause being at issue and witnesses -fitnesses ex- having been examined therein the same came on to be heard before amined. the then Lord High Chancellor of Great Britain on the day of Decree made, , when his lordship was pleased to declare the will of the said declaring the testator W. B. dated the day of to be well proved, and ^^'"j^fthT' that the same ought to be established, and the trusts thereof per- the trusts formed and carried into execution, and did decree the same accord- ought to be ingly ; And it was ordered that, &c. And your oratrixes and orators^ earned into further show unto your lordship that the said M. B. having inter- ^^j.j.; g ^f married with G. B. of D. in the county of B. esq. your oratrixes' and the plaintiffs' orator's father, the said suit and proceedings so far as concerned the mother. ^ said M. B. became *abated, and in consequence thereof they on or [ *450 ] (17) A bill for this purpose is generally partly an original bill, and partly a bill in the nature of an original bill, though not strictly original; and sometimes it is like- wise a bill of revivor, or a supplemental bill, of both. Ld. Red. Tr. PI. 97. 450 BILL TO CARRY A DECREE INTO EXECUTION. name. Bill of revivor about the day of exhibited their bill of revivor in this the'^aintiffk' ^o^o^3,ble court, praying that the same might stand revived and be parents. ill the same plight and condition as the same were in at the time of the intermarriage of the said complainant ; and that the said decree made on the hearing of the said cause might be directed to be pro- secuted and carried into full effect, and that all proper and necessary directions might be given for effectuating the several matters afore- A bill of revi- said. And your oratrixes and orator further show unto your lord- mbite'dV^the ^^^P. *^** ^- ^- ^^^ ^- ■^- ^- *^^ complainants in the original bill other plafn- ^ exhibited their bill of revivor in this honorable court on or about tiffs ia the ori- the day of against the said G. B. and M. his wife, stating ginai cause, their intermarriage, whereby the said suit and proceedings had be- come abated so far as concerned the said M. B. and praying that the said suit and proceedings might stand and be revived against them the said G. B. and M. his wife, or that they might show good cause Anorderraade to the contrary. And your oratrixes and orator further show unto directing the yom- lordship that by an order bearing date on or about the a. sum of mo- ^^J °^ your lordship was pleased to order that, &c. [directing ney into the trustees to fay the sum therein mentioned into the bank, to the court; account of M. B.'] And your oratrixes and orator further show the same paid unto your lordship that in pursuance of the said order the said sum ^d ^."'^1°^^^''" of £ was paid into the bank with the privity of the Accountant- countant- General, and was afterwards laid out by him in the purchase of General's £ three per cent, consolidated annuities, which are now stand- ing in the name of the said Accountant-General in trust in this cause, to the separate use of the said M. B. As in and by the said original bill answers decree bills of revivor order and other proceed- ings now remaining filed as of record in this honorable court, and to which your oratrixes and orator for their greater certainty crave Supplemental leave to refer, will when produced more fully appear. And your matter, oratrixes and orator further show unto your lordship by way of supplement that no settlement having been made previously to the marriage of the said G. B. and M. B. of the part or share of the said M. B. in the residuary estate of the said testator W. B., the That the interest and dividends thereof by the will of the said testator be- p ainti s mo- gQ^g payable to the said M. B. for her sole and separate use during tner is entitled , ,.^ -^ ., , . , , , p .n i t • .i i ^ i i i to the interest her lite, and the principal thercot will be divisible after her death of her share amongst such children of the said M. B. who being a son or sons d ti[ t'th shall live to attain the age or ages of twenty-one years, or being principal will ^ daughter or daughters shall live to attain the age or ages of be divisible twenty-one years, or be married which shall first happen. And ^?^??S5t her your oratrixes and orator further show unto your lordship by way ° ' °^ supplement that your oratrixes and orator are the only children plaintiffs are ^^ ^^^ ^^^^ ^- ^- -^^*^ jovLT oratrixes and orator further show that her only child- the accounts of the real and personal estate of the said testator ''^°- directed by the said decree of the day of have never in '^'"*it*'^d-^'^"t any manner been prosecuted, and that no part of the produce of the ed by the de- ^^^^ o'^ personal estate of the said testator hath ever been paid into cree have Or secured by this honorable court, other than the aforesaid sum never been of £ 3 per cent, consolidated bank annuities which is standing prosecu e . j^ ^j^^ name of the said Accountant-General as aforesaid in trust in BILL TO CARRY A DECREE INTO EXECUTION. *451 *that cause, to the separate account of the said M. B. And your That no part oratrixes and orator further show unto your lordship that the said of the produce defendants Sir J. M., J. W., W. C, and B. B. upon or soon after "or'a real ' the death of the said testator possessed themselves of the personal and personal estate and eflfects of the said testator to a great amount, and the said ^^tate has defendants also sold the real estates of the said testator or some parts excep't°\re V thereof, and from the rents and produce of such real estates pos- foresaid sum. sessed other large sums of money ; and the said defendants did from That the trus- time to time lay out and invest or but for their wilful default and ne- t^?^ ^^"^ ^'^- glect might from time to time have laid out and invested the moneys ^^^^l ^"^^^ so received by them from or in respect of the real and personal estate That the share of the said testator, in such manner that the part or share of the to which the said M. B. therein after making thereout a reasonable allowance for plaintiff's her maintenance and education did or might have greatly accumulated ^"titled ^ught during her minority. And your oratrixes and orator further show to have great- that they are, as they are advised, entitled to have the benefit of the h accumula- said suit and proceedings and to prosecute the said decree against ^jnori^y^ ^^ the said several defendants. To tub end therefore that, &c. [see plaintiffs enti- form VI. p. 5.] Whether at or about the time hereinbefore men- tied to prose- tioned or at some other time and when your oratrixes' and orator's cute the de- mother by^er then name of M. B. together with W. B. and G. B. "^'^■ B. did not exhibit their original bill of complaint in this honorable ri'ea'' to°the°' court against such persons as are hereinbefore in that behalf men- statements. tioned as defendants thereto, thereby stating such several matters and things as in the said original bill particularly mentioned and set forth, and praying to the purport and eifect hereinbefore set forth or to some such or the like or some other and what purport and effect ; And whether the said cause did not come on to be heard at or about the time hereinbefore in that behalf stated or at some other time and when ; And whether such decree was not made therein as hereinbe- fore in that behalf set forth or to some such or the like or some other and what effect ; And whether the said M. B. did not intermarry with the said G. B. ; And whether thereupon the said G. B. and M. B. his wife did not at or about the time hereinbefore in that behalf stated or at some other time and when exhibit their bill of revivor in this honorable court, thereby praying to the effect hereinbefore in that behalf stated or to some such or some other and what effect ; And whether the said W. B. and G. B. B. two of the complainants m the said original bill named did not likewise exhibit their bill of revivor in this honorable court at or about the time aforesaid, or at some other time and when, thereby stating and praying to the pur- port and effect hereinbefore in that behalf set forth, so far as the same is herein set forth, or to some such or the like or some other and what purport and effect ; And whether at or about the time hereinbefore in that behalf stated or at some other time and when such order as hereinbefore in that behalf set forth was not made in the said cause or some other and what order to such or the like or some other and what effect ; And whether any and what settlement interrogato- was ever and when made previously to the marriage of the said G. gyppie^^g^jai B. and M. B. of the part or share of the said M. B. in the residuary matter, estate of the said testator W. B. and if not why not ; And whether *452 BILL TO CARRY A DECREE INTO EXECUTION. *tlie interest and dividends of such residuary estate by the will of the said testator or otherwise and how did not become payable to the said M. B. for her sole and separate use during her life or how other- wise ; And whether the principal thereof will not become divisible after her death in manner hereinbefore in that behalf stated or how otherwise ; And whether your oratrixes and orator are not the only children of the said M. B. ; And whether the accounts of the real and personal estate of the said testator directed by the said decree of the day of have ever and when in any and what man- ner been prosecuted ; And whether any and what part of the pro- duce of the real or personal estate of the said testator hath ever and when been paid into or secured by this honorable court other than the aforesaid sum of £ 3 per cent, consolidated bank annuities ; And whether such sum of <£ or some other and what sum is not now standing as aforesaid in trust in this cause to the separate ac- count of the said M. B. or how otherwise ; And whether the said defendants Sir J. M. J. W. W. C. and B. B. or some or one and which of them have not possessed themselves of the personal estate and effects of the said testator to a great or some and what amount ; And whether the said defendants or some or one and which of them have not also sold the real estates of the said testator or some and what parts thereof or how otherwise ; And whether from the rents and produce of such real estates they or some or one and which of them have not possessed other large and what sums of money ; And whether the said defendants or any or either and which of them have or hath at any time or times and when in particular laid out and in- vested the moneys so received by them in respect of the real and per- sonal estate of the said testator or any and what parts thereof and to what amount in particular in any and what stocks or funds or other and what securities and if not why not ; And whether the part or share of the said M. B. in the real and personal estate of the said testator after making thereout a reasonable allowance for her maintenance and education, hath not or but for the wilful default and neglect of the said defendants some or one and which of them might not greatly or in some and in what degree have been accumulated during her minority ; And whether your oratrixes and orator are not entitled to have the benefit of the said suit and proceedings and to prosecute the decree against the said several defendants and if not why not. And that the said defendants may answer the premises ; and that your oratrixes and orator may have the benefit of the said suit and proceedings, and may be at liberty to prosecute the said decree of the day of so far at least as may be necessary to ascer- tain the accumulated part or' share of the said M. B. in the produce of the real and personal estate of the said testator ; and that in taking the accounts of the said real and personal estates of the said testator the said defendants the trustees and executors may be charged with such sums of money as have been or but for the wilful default and neglect of the said defendants might have been accumulated by duly laying out and investing pursuant to the will of the said testator and the said decree the moneys which are or ought BILL IN THE NATURE OF A SUPPLEMENTAL BILL. 452 to have been from time to time in the hands of the said defend- ants *the trustees and executors ; and that such further sum as to- [ *453 ] gether with the said sum of £ 3 per cent, consolidated annuities ■will make up the part or share of the said M. B. in the real and personal estates of the said testator may be paid into and secured by this honorable court for the benefit of your oratrixes and orator or such of them as may eventually become entitled thereto ; and that for these purposes all proper directions may be given ; and that your oratrixes and orator may have such further and other relief in the premises as the nature of the case may appear to require and to your lordship shall seem meet. May it please, &c. [^seeform No. 1, p. 6.] J. L. Pray subpoena against Sir J. M. J. w. w. 0. B. B. w. B. a. B. B. a. B. and M. B. his wife. 8. BILL IN THE NATURE OF A SUPPLEMENTAL BILL. CLXIV. Bill in the nature of a supplemental bill{18) against the executor of one of the defendants to the original bill who had died abroad without having put in his answer, he being entitled to a legacy under his father's will in case he claimed the same within seven years, the payment whereof had been restrained by an in- junction obtained by the plaintiff in the original bill; the prayer of the supplemental bill is, that the legacy with its accumulations may be declared to be part of the deceased's personal estate and may be applied m payment of the debts due to the plaintiff' and his other creditors. Humbly complaining showeth unto your lordship your oratrix L. S. T. of, &c. on behalf of herself and all other the creditors of I. L. the younger, late of, &c. vrho shall come in and seek relief by and contribute to the expense of this suit. That on or about Original bill your oratrix exhibited her original bill of complaint in this bono- exhibited by rable court against the said I. L. since deceased, A. M. C. now the plaintiff" wife of R. H. clerk, and the Governor and Company of the Bank against l. L. of England thereby stating amongst other things that I. L. the elder the younger late of in and by his last will, &c. and praying that, &c. And and others, your oratrix further showeth that soon after the filing of the said obtained to°" bill of complaint your oratrix obtained an injunction to restrain the restrain the said defendant A. M. H. from transferring the said sum of stock, transfer of a sum of stock. (18) In the former edition this bill is inserted as a bill of supplement in the nature of an original bill, under the head of Bills of Supplement and Revivor. From the imperfect statement there given it is difficult to decide under what head it should be properly classed. The object of the original bill seems to have been to attach the legacy in the hands of the executrix. 453 BILL IN THE NATUEB OF A SUPPLEMENTAL BILL. [ *454 ] and that the said A. M. H. and the said R. H. her husband *have Answer pat in since put in their joint and several answer to- the said bill, but that by two of the no further proceedings have been had in the said cause. As in and defendants. {,y^ ^g_ ^^^j y^yj. oratrix further showeth unto your lordship by ma^fer— °'^^ way of Supplement that before the expiration of years from Death of I L ^^^ death of the said testator I. L. and in or about the said the younger, defendant I. L. the son departed this life at M. aforesaid without abroad; having as it is alleged ever returned to England since the death of His will, the said testator, but having duly made and published his last will The same pro- and testament in writing, which hath since been duly proved in the who'has^poT: Prerogative Court of the Archbishop of Canterbury by G. W. of, &c. sessed himself {one of the defendants hereto) the executor in England, and the sa,id ofthepersonai Gr. W. hath by virtue thereof possessed himself of the estate and estate. effects of the said I. L. the son to a considerable amount. And your That after the Q^atrix further showeth by way of supplement that after the filing of was obtained the Said Original bill of complaint, and the obtaining of the said in- two of the de- junction to restrain the transfer of the said stock, the said defendants letttr3toT°L ^" ^- ^^^ ^' ^- ^' °^ ""^^ °^ ^^^^ ^'■"'^ *^^'*^®'"® letters to the said the younger !• ^- 'he son at M. and received from him divers other letters, and the and received Said defendants or one of them have now or lately had in their cus- others, from tQjjy qj. po^'er the letters so received from the said I. L. the son, and ™ ' also copies of the letters written by them to the said I. L. the son, or memorandums thereof, or the said defendants can set forth the pur- port and effect of the letters so received and written by them respec- and that they tively. And your oratrix further showeth that the said defendants R. Y'^^T^ h-f H. and A. M. H. in the said letters so written to the said I. L. the to delay h-.s . . ... , , return to Eng- SOU informed the said i. L. ot the suit instituted by your oratrix as land in order aforesaid, and of the injunction obtained therein to restrain the transfer to claim his ^f ^^^ ^^^^ ^^^ ^f gtQgt ^nd the said defendants thereby prevailed ' upon or induced the said I. L. the son to delay returning to England in order to make a formal demand for the sum of stock according to That they re- the terms of the said testator's will. And your oratrix further show- ceived the di- gth that the Said defendants R. H. and A. M. H. have from time to of and^ have" ''^^ received the dividends on the said sum of stock, and have or or ought to ought to have laid out the same to accumulate according to the direc- have laid out tions of the Said testator's will. And your oratrix charges that the the same to gg^j^j gmjj ^f gtQg]^ ^j^^ ^\\ accumulations thereof are part of the estate ^, ,, ' and effects of the said I. L. the son, and ought to be applied in or Charge that - , ... „ ' . ,° , rr the legacy and towards the satisiaction 01 your oratrix and the other creditors oi accumnla- the said I. L. the son in a due course of administration. But the tions are part gg^j^j Q ^_ colludes with the Said other defendants, and declines to estate^ofl. L. take any proceedings to recover and apply the said stock and accu- the younger, mulations accordingly. To THE end therefore that, &c. [see form VI. p. 5.] Interrogate- And whether after the filing of the said original bill of complaint nes relating g^mj (;[jg obtaining of the said injunction to restrain the transfer of ^g ' the said stock or at some other time or times and when in particular the said defendants R. H. and A. M. H. or one and which of them or some other person or persons and whom by their or one and which of their instructions or with their or one and which of their privity did not write divers or some and what letters or letter to the said BILL IN THE NATURE OF A SUPPLEMENTAL BILL. 454 I. L. the son, or to some other person or persons and whom on his behalf and whether not to M. or elsewhere and where ; And whe- ther *they or one and which of them or some other person or per- r *455 ] sons and whom with their or one and which of their privity did not receive from him or some other person or persons and whom on his behalf and when in particular divers or some and what other letters or letter ; And whether the said defendants or some and which of them or some other persons or person and whom on their or one and which of their behalf have not now or have not had lately and when last in their or one and which of their custody or power the said letters or letter so received from the said I. L. the son, or from some person or persons and whom on his behalf or some or one and which of such, letters or letter or what hath become of such letters or letter ; And whether they the said defendants or one and which of them or some other persons or person and whom on their way or one and which of their behalf have not now or have not had lately and when last in their or one and which of their custody or power some and what copies or copy memorandums or memorandum of the said letters or letter or some or one and which of the said letters so written as afore- said to the said I. L. the son, or to some person or j)ersons and whom on his behalf ; And that the said defendants may set forth the said several letters or letter so written or received as aforesaid in the very words and figures thereof respectively, and may leave the letters or letter so received and the copies and memorandums of the letters or letter so written in the hands of their clerk in court for the usual purposes ; And if the said defendants have no such letters or letter copies or copy memorandum or memorandums in their or either of their custody or power, then that they may set forth the purport and eifect of all such letters or letter so written or received as aforesaid, fully and particularly to the best of their respective knowledge and belief; And whether the said R. H. and A. M. H. or one and which of them or some other person or persons and whom on their or one and which of their behalf or with their or one and which of their privity did not in some or one and which of the said letters or letter so written as aforesaid, inform the said I. L. of the suit so instituted by your oratrix as aforesaid, and of the injunction obtained therein to restrain the transfer of the said sum of stock or to some such and what effect ; And whether the said defendants or one and which of them or some other person or persons, and whom on their behalf or with their privity did not thereby or by some other and what means prevail upon or induce the said I. L. the son to delay returning to England in order to make a formal demand for the said sum of stock according to the terms of the said testator's will, or for what reason as the said defendants or either and which of them know or believe did the said I. L. the son delay returning to England. And that the said defendants may answer the premises. And that the said sum of £ 5 per cent, bank annuities, together with the accumulations which have or might and ought to have been made thereof may be declared to be part of the personal estate and effects of the said I. L. the son, and may be applied together with all other personal estate and effects of the said I. L. the son which have been 34 455 INFOBMATIONS. possessed or received by the said Gr. W. in payment of your oratrix and the other creditors of the said I. L. the son in a due course of [ *456 ] ^administration, and that for this purpose all proper directions may be given. [^And for further relief, see form VIII. p. 5.] J. L. Pray subpoena against R. S. and A. M. his wife, and Gr. W. [ *457 ] *CHAPTER VI. INFOEMATIONS.(l) CLXV. Information for a discovery and account of the timher and other trees and underwood cut down by the direction of the defend- ant, in the king' s forest, in the county of S. and of the loppings, ^c. taken by the defendant on the falls of timber directed for the use of the navy ; the defendant claiming to be entitled thereto as keeper of the forest under a grant from the Grown ; An injunc- tion is also prayed to restrain him from cutting down any more trees, ^c. Informing showeth unto your honors Sir A. M. knight his Ma- Seisin in his jesty's Attorney-General on behalf of his Majesty, That his Majesty Majesty m jg ^^(j ]ja,th been for many years last past seised in his demesne as of Crown. '^ ^^^ i° right of his Crown, of and in the forest and chase of A. H. and W. in the county of S. and of and in the lands lying and being within the same, and the timber and other trees wood and underwood Tliat the de- growing thereon ; And the said Attorney-General further informeth fendant or his your honors that various persons and particularly the Right Hon- servants have ^^^^i^ Lqj.(J g u^^^ defendant hereinafter named) or his agents or cut down tim- . , , > ..... , <• i . ' ■, ■, , ber trees, &c., servants With his privity by his order or tor his use, hath or have cut and converted great numbers of such timber and other trees wood and underwood, the same to ^^^ converted the same to his own use; And the said Attorney- General further informeth your honors that his Majesty or the That great proper officers hath or have from time to time caused great^numbers numbers of ^f timber Or other trees to be cut down for the use of the navy and been cut down fo'^ other purposes, and when such falls of timber and other trees (1) Informations in every respect follow the nature of bills, except in their style. When th^ concern only the rights of the Crown, or of those whose rights the Crown takes under its particular protection, they are exhibited in the name of the King's Attorney or Solicitor-General as the informant: in the latter case, always, and in the former, sometimes, a relator is named who in reality sustains and directs the suit ; where he has an interest in the matter in dispute, and sustains the character of plaintiff as well as of relator, the pleading is styled an information and bill ; see Ld. Red. Tr. PI. p. 22, 99, 4th edit, and the cases referred to in the notes, ibid. In cases of a breach of trust by trustees of a charity, or whenever the direction or order of a court of equity is deemed necessary for the administration of any trust for charitable purposes, a summary mode of relief is given by means of a petition under the 52 Geo. 3, c. 101. See further, 2 Madd. Oh. Pr. 154. INFORMATIONS. 457 bave been made, his Majesty's officers and other servants have in for the use of order to prepare the said timber and other trees for use, separated ^^^ "^^y- the bodies of the timber trees from the lops tops and *boughs, and [ *458 J that the said lops tops and boughs were of considerable value, and That the lop?, upon such occasion the said Lord S. or his agents with his privity by b°ou^'h°ha his order and for his use hath or have carried away great quantities been carried of the said lops tops and boughs, and converted the same to the use away by the of the said Lord S. ; And the said Attorney-General further. in- defendant. formeth your honors that his Majesty in right of his Crown is en- ^^^ ' fg' eiuf." titled to have an account taken of the timber and other trees wood tied to an ac- and underwood so cut down and converted by or by the order of the count thereof said Lord S. and to have the value of the same accounted for to the ^^^ °^ '^^ proper officers for his Majesty's use and also an account taken of ijo^n. the lops tops and boughs so taken and carried away and converted ; and applications have been frequently made to the said Lord S. to Applications come to such account and to make such payment, with which appli- ^'J.'^^ j"" *?'*' cations he ought in justice and equity to have complied. But now so IT IS may it please your honors that the said Lord S. refuses so to do; and he threatens and intends to continue to cut down more timber and other trees wood and underwood; And to color such his Pretence that refusal and threats, he pretends that neither he nor any person or '^^ defendant persons by his order or with his privity hath or have cut down any down^anr"' timber or other trees wood or underwood, and converted the same trees. to his own use. Whereas the said Attorney-General charges the charge the contrary thereof to be the truth, and that the said Lord S. hath contrarj; yearly and for many years last past cut down or in manner aforesaid caused to be cut down great number of timber and other trees and great quantities of underwood ; and particularly that some time in And that the beginning of this present year , some person or persons as f^°™^ persons the servants or by the special order of the said Lord S. cut down in the defendant W. forest as aforesaid a very great number of oaks hollies and other cut down trees and sold the same, and that the said Lord S. received the manyoaks,&c. price thereof and converted the money arising therefrom to his own .jefeQciant re- use, as would appear from various books papers and accounts kept ceived the by or by the order or for the use of the said Lord S. and in his pos- ™oaej and ^ session custody or power; and so the said Lord S. will sometimes sarae\o*hi^ admit. And the said Lord S. at times alleges that he hath not taken own use. nor caused to be taken and carried away any lopa tops or boughs of Defendant ai- timber or other trees which have been cut down by order of his leges that he Majesty or of the proper officers in that behalf for his Majesty's use. J"),* ,"pg ^f ^n" Whereas the said Attorney-General charges the contrary thereof trees cut down to be the truth, and that lately and when there have been falls by order of his of timber and other trees by order of his Majesty or of the proper *i«Jesty.. officers for his Majesty's use, some persons or person as the agents ^JXarj'^'^ or servants of the said Lord S. or by his order or for his use, carried ' away great quantities of the lops tops and boughs cut off from the said timber and other trees, and the same or some part thereof were and that he or was sold or in some way disposed of, and the same or the price bas sold large thereof was received or accounted for to the said Lord S. and_ so it t'^a^^.g^f'®^ would appear from certain books papers accounts or writings in his possession custody or power if the same were produced, and so 458 INFOKMATIONS. Defendant al- the Said Lord S. will sometimes admit; But then he alleges that leges that heis under some grant he is entitled to the office of keeper of the forest somegran°tfa3 ^v chase of A. H. and W. with all offices liberties fees emolu- keeper of the ments *and privileges whatsoever thereunto belonging, to hold the forest, to same for some term of years not determined, and to enjoy the said and^fire-bote °^^^ ^°^ ^^^ profits thereof and to take all wood blown down or &c. ' thrown down, and house-bote andfire-botefor himself and the foresters r *459 1 ^^^ keepers of the said forest and chase ; and that the said timber wood and underwood so cut down by the order of the said Lord S. and taken and converted, was by virtue of the said grant, and for the house-bote and fire-bote for himself and the said foresters and Charge that keepers. Whereas the said Attorney-General charges that the said he is not enti- Lord S. is not under the aforesaid grant entitled to take any timber authority of^'^ '^'^^^ Or underwood for house-bote or fire-bote, but at the view or the surveyor- under the authority of the surveyor-general of the woods within general. whose district the said forest woods or chase is situated or some other officer of the forest. And the said Attorney-General further charges that even if the said Lord S. were entitled to take house-bote and fire-bote without the consent warrant or authority of any officer, yet he was not entitled to take any timber nor such number and quanti- Thatthequan- ties of Other trees and underwood as aforesaid, because that the same tity taken is ^^s unreasonable and more than sufficient for the repairs of the unreasona e , jj^^ggg g^^^ lodges and for fuel for their own consumption, and that And that the in fact by far the greater part thereof was not employed in such re- greater part pairs and fuel, but was actually sold and disposed of for other per- t ereo as gons, and the price thereof paid or otherwise accounted for to the been sold, ana '^^ • iK- ■, n •^■, ■ -, • ai the value re- Said liord b., and SO the said Lord c. will at some times admit ; And ceived by the at Other times the said Lord S. alleges that the above stated words defendant. ^f ^.j^g gg^j^j grant giving him the boughs and branches of trees within leeeTthat' nn- ^^^ ^^^^ forest cut or thrown down entitles him to take and convert der the words to his own use all the lops tops and boughs of the timber and other of the grant trees felled or cut down by order of his Majesty or of the proper to the'^lo'^s^of °®^^^^ ^o"" ^^^ Majesty's use. Whereas the said Attorney- General trees for his charges the contrary, and that the said Lord S. is not by force of Majesty's use. the Said words nor by the said alleged grant entitled to take the said ■ Charge the lops tops and boughs of any timber or other trees felled or cut down contrary; t^^ order of his Majesty or of the proper officer of his Majesty, and that he refuses SO the said Lord S. will some times admit; but nevertheless he re- to comply fuses to comply with the aforesaid requests and applications, and also with the re- threatens and intends on the next fall of timber and other trees by an?intemi3^o oi'der of his Majesty or of the proper officers for his Majesty's use, carry away to take and Carry away and convert to his own use the lops tops and the lops of boughs of all sucb timber and other trees. All which actings doings pretences and refusals are contrary to justice and good conscience and tend to the injury of his Majesty in the premises and to the de- triment of the realm. To the end therefore that the said Lord S. may come to the aforesaid account and may be restrained from com- mitting any more waste in the said forest or chase, and that the said Lord S. may upon his honor true answer make to the matters afore- said, and more especially that he may answer and set forth Whe- ther, &c. [interrogating to the stating anci charging parts.'] And INFORMATIONS. 459 whether the said Lord S. hath not in his possession custody or power Interrogato- some and what books or book papers or accounts containing some and '''^^ ^°' ^ '^'5" what entry oi' entries of the timber and other trees wood and under- bookJac- wood cut down and ^converted to the use of him the said Lord S., counts, &c. and also of the hollies aforesaid cut down in the beginning of the [ *460 1 present year, or containing some and what entry or entries of the prices for which the whole of such particulars or some and which of them were sold, and when and to whom and of the moneys produced by them or some and which of them or of the manner in which the same and every or some and what part thereof were employed or con- sumed ; And whether the said books papers and accounts or some and which of them are not now in the possession custody or power of the said Lord S. or what is become of the same and every of them, and that he may set forth a list of the same with their marks respec- tively, and may leave the same in the hands of his clerk in court for the inspection or perusal of his Majesty's said Attorney- General or his agents; And that the said Lord S. may set forth a full true and and of the particular account of all the timber and other trees woo'd and under- '^^^i *<=• <="' wood cut down by his order or with his privity and of the lops tops thj^iops" &c and boughs aforesaid taken and carried away by his order or for his carried away. use, and in what manner the same and every of them were consumed and employed, and for what price the same were sold. And that his Majesty may have the discovery aforesaid, the said Prayer. Attorney-Greneral hereby on behalf of his Majesty waiving all and all manner of forfeiture or penalty incurred by the said Lord S. by the waste or by any of the other acts stated or charged in the said information. And that an account may be taken under the direction of this honorable court of all the timber and other trees wood and underwood cut by or by the order of the said Lord S. or any of his servants or agents with his privity or of his use, and of the value of such timber and other trees wood and underwood ; and also that an account may be taken of the lops tops and boughs of the timber and other trees felled and cut down by order of his Majesty or of the proper oflScers for his Majesty's use ; and that the said Lord S. may be decreed to made satisfaction to his Majesty for the same ; And that he may be restrained by the injunction of this honorable court from cutting down or from causing to be cut down any more timber or other trees wood or underwood, and also from taking and carry- ing away any more lops tops or boughs of timber or other trees cut down by order of his Majesty or of the proper officers for his Ma- jesty's use. And that your lordship would be pleased to grant your informant on behalf of his Majesty such further and other relief as to your lordship may seem meet and the circumstances of this case may require. May it please, &c. [see forms No. 3 and 5, p. 6, and 7.] *461 INPORMATIONS. *CLXVI. Information to restrain the malcing of a Carriage road and breaking up a public foot-path, in order to prevent certain streets from 'being made thoroughfares for carriages contrary to the intention of an act of parliament. Informing showeth unto your lordship Sir E. L. knight his Ma- Description of jesty's Attorney-General, at the relation of A. B. &c. &c., That there a particular is situate lying and being within the parish of St. J. in the city of v'^Unr'^^'^ W. a certain public street called V. lane leading from a certain ^°^' other public street called B. street to a certain other public street called G. street, and communicating on the north side thereof with certain other public streets called C. street. Old B. street, and S. and of the row. And Jiis Majesty's Attorney-General by the relation aforesaid public foot- further showeth that at the east end of the said street called V. lane soith°°ide ^ there is a certain other public street called S. street leading from thereof, thence into a certain other public street called P. and that along the south side of the said street called V. lane from S. street to B. street there is and for many years past hath been a common and public foot-path which hath been from time to time paved with flag-stones at the expense of the inhabitants of the said parish of St. J. for the convenience of persons passing and repassing on foot, the said street called V. lane being a great public thoroughfare for foot pas- sengers from B. street to S. street although there is not nor ever there being no hath been any thoroughfare for carriages along the said street from thoroughfare B. Street to S. Street by reason of certain wooden posts which are for carnages. ^^^ g^gj, gjjjgg ^jjg making of the said street called V. lane have been Boundaries of placed across the said street a few feet to the eastward of S. row. the footway, j^^^ \^{^ Majesty's Attorney-General at the relation aforesaid further showeth that the said common and public footway from B. street to S. street is and ever since the making of the same hath been bounded on the south for the most part by a certain ancient brick wall which forms the northern fence and boundary of certain lands called M. gardens and B. gardens, and that there is not nor ever hath been any public way or opening on the north side of the said footway, so that his Majesty's subjects in passing and repassing on the same footway have at all times had the free and uninterrupted use thereof without Claim set up any hurt hindrance or obstruction whatsoever. And his Majesty's many years Attorney-General at the relation aforesaid further showeth that up- tai'n per^so'^nsof ^^''^s of years since, the then owners of the said lands called a right to M. gardens and B. gardens severally claimed a right to open a pub- make a public lie street or way from P. through their said respective lands into the cMni'\TOs"^ said street called V. lane and threatened to make a public street or afterwards Streets accordingly, but such claim being resisted on the part of the abandoned, proprietors and inhabitants of the said several streets called V. lane C. street, Old B. street and S. row by reason of the disturbance and. injury that would thereby be occasioned to the said several streets, the said owners of the said lands thought fit to abandon such claim, Statement of and afterwards by an act of parliament made and passed in the 12th [ *462 ] year of the reign of his present Majesty, *intituled, "An Act, &c." INFORMATIONS. 462 It was provided, &c. whicli provision was inserted in the said act a particular of parliament for the purpose of protecting the said streets called "^^"^^ '" ^." V. lane S. row C. street and Old B. street from any throughfare mentan^the for carriages from P. to the said street called V. lane by the way intention of of S. street or by any other means than by the way of B. street, such clause. And his Majesty's Attorney-General at the relation aforesaid further pian formed showeth that his Royal Highness the Duke of Y. proprietor of the bythedefend- said lands called M. gardens and the defendant hereinafter named f"^' ^°'^ ™?'^' hath formed a plan for making and is about to make a public street ^fy over"he or way for horses carts and carriages from P. through the said lands public foot- called M. gardens into the said street called V. lane over the afore- ""^'^^^ °^ said common and public footway on the south side of the said street ; ^gg^ ^roTen and in and towards the execution of such plan hath actually made an up ; opening in the said ancient boundary wall and hath taken up a part of the flag pavement of the said footway. And his Majesty's At- torney-General at the relation aforesaid further showeth that such public street or way so intended to be made by the said defendant his Royal Highness the Duke of Y. if carried into execution will greatly interrupt and obstruct the said common and public footway That such new on the south side of the said street called V. lane and will be to the way will ob- great damage and common nuisance of all his Majesty's subjects pas- ^'■™<^'' ^^^ sing and repassing by the said footway. And his Majesty's Attor- wiilTe''a com- ney-General at the relation aforesaid further showeth that such in- men nuisance. tended street if carried into execution will be opposite to the end of The intended S. row and westward of the said wooden posts so as aforesaid placed ^^°® "^ ^^'^^ across the said street called V. lane, and by making a direct thorough- fare for horses carts and carriages from P. into the said street called V. lane, will actually defeat the provision made as aforesaid in the said act of parliament for the protection of the said streets called V. lane S. row C. street and Old B. street from any thoroughfare for carriages and will therefore be contrary to the true intent and mean- ing and spirit of the said act of parliament. To the end therefore that his Royal Highness the Duke of Y. may upon his honor and according to the best of his knowledge remembrance information and belief full true and perfect answer make to all and singular the mat- ters aforesaid as fully and particularly as if the same were here again repeated and he thereunto distinctly interrogated, and more especially that he may answer and set forth Whether, &c. {^interrogate to the statements.^ And that the said defendant may answer the premises ; and that Prayer, the said defendant his agents servants and workmen may be re- strained by the order and injunction of this honorable court from proceeding to make and open any public street or way from the said lands called M. gardens into the said street called V. lane over the said common and public footway; and that the said defendant may be directed to replace the flag-stones of the said footway so as_afore- said removed by him or by his order, and to put the same footway into the same state and condition as the same was in before his ob- struction thereof as aforesaid. [And for further relief] J. L. *463 INEOKMATIONS. *CLXVII. Information to restrain the obstructing ana hreaking up a public road and highway, for the purpose of making vaults in front of certain houses to be erected on ground fronting the road. TJie defendants claiming an authority under commissioners ap- pointed by certain acts of parliament. States that there is situate lying and being within the parish of B. in the county of M. a certain street or road commonly called or known by the name of , which is bounded on the east by certain dwelling-houses and the arrears thereto belonging, and on the west side thereof by certain land or ground now belonging to the Duke of B., from which the same was formerly separated by a brick wall which hath within these few weeks past been pulled down and demol- ished, and which street and public highway at the south end thereof ter- minated with a certain street and public highway called , and at the north end thereof terminated at , and communicates with a cer- tain piece or parcel of land which hath lately been laid out as a street and public king's highway which is called , which street or road is called or known by the name of , and now is and hath for up- wards of years last past been a common and public king's high- way for all his Majesty's subjects whatsoever, and the same hath been from time to time for upwards of years last past repaired at the expenses of the inhabitants of the houses adjoining the said street and king's highway, and of the inhabitants of the said parish of , by means of rates imposed and by virtue of certain acts of parliament made and passed in the , years of his present Majes- ty's reign or some or one of them. That all his Majesty's subjects ought now and at all times here- after to have the free use of the said street and public king's high- way, for themselves their carriages and horses free from all let inter- ruption and hindrance whatsoever; but that the said Duke of B. hath lately entered into some contract with J. B. for letting the ground lying and being on the west side of the said street or public highway and adjoining thereto, and the said defendant J. B. hath agreed with the said defendant the Duke of B. to erect certain houses on the said piece or parcel of ground fronting the said street or king's highway on the west side thereof and the said defendant J. B. threatens and intends shortly to take up part of the pavement in the said street or public king's highway on the west side thereof, and to make and dig large holes therein for the purpose of erecting vaults therein upon and under the said street or public king's high- way to be used with the said dwelling-houses, and to pave or cover the said street above such vaults when erected with broad flags or stones such as are used for paving of passages for foot passengers only ; and that by the digging of such holes and building of such vaults the said street and king's highway must necessarily and una- voidably be much obstructed and rendered much less convenient for [ *464 ] his Majesty's subjects, who will be deprived of so much of the *said street and king's highway as shall be so dug up or as shall be used for the laying of earth and rubbish dug thereout until the said vaults INFORMATIONS. 464 shall be completed ; and that when the same are completed, said street and public king's highway will at all times after be liable to be obstructed by the falling in of such vaults, or when the same stand in need of repairs that the digging and making of such vaults and the continuance thereof will be to the public damage and nui- sance of all his Majesty's subjects, and particularly of the said rela- tors and all other persons residing near the said street and public king's highway ; and that if the said vaults are covered over with the said flags or broad stones as intended, so much of the said street or king's highway as is covered with such flags or broad stones will become unfit to be used for horses and carriages ; and that his Majes- ty's subjects, and particularly the said relators, will not have the use and enjoyment of said street or king's highway in so beneficial a manner as they have hitherto been accustomed to have. That the laying of such fiags or stones will also be to the public in- jury and nuisance of all his Majesty's subjects, particularly of such of them as aforesaid. That such intended acts of the said defendant J. B. if carried into execution, will be to the wrong and injury of all his Majesty's sub- jects, and will be a public nuisance. And that the said relators and divers others of his Majesty's subjects have frequently applied to the said J. B. and requested him not to proceed to dig up the said street or public king's highway. Charge that the said defendants refuse to comply with such request, and threaten and intend to dig up the said street and public king's highway in manner aforesaid, and to erect vaults under the same, and to pave or cover the street or above the same as hereinbefore mentioned. Pretence that the said piece of ground called is not a public king's highway. Charge the contrary, and that the said piece of ground was up- wards of years set apart for and hath ever since been and still is used as a public king's highway, and hath since the year of the reign of his present Majesty been repaired at the public expense of the said parish of B. in manner hereinbefore mentioned, and that the same thereof is and ought to be taken to be to all intents and pur- poses a common and public king's highway, Pretence that the soil of the said piece or parcel of ground belongs to the said defendant the Duke of B. and that he hath a right to dig and make vaults under same, and pave and lay the surface of ^uch street as he shall be advised. Charge the contrary, and that if the said defendant Duke of B. is owner of the said piece or parcel of ground, yet the same being a public highway, neither he nor any person claiming by from or under him, hath any right to dig the soil thereof, so as to obstruct hinder or interrupt the said way ; and that in order to make the said vaults the said defendant J. B. intends to dig holes from the sur- face of said street or highway, which may obstruct the same, or make *the same less commodious or convenient for the passage of horses [ *465 ] or carriages. Pretence that they have been duly authorized and empowered by 465 INFORMATIONS. the commissioners named and appointed by the said acts of , or some or one of them for the purposes therein mentioned or a sufficient number thereof, to make such vaults, and to pave such part of the said street as they intend to pave with such flags or broad stones as aforesaid. Charge and insist that in case the said commissioners have made any order by which they have pretended to give authority to the said defendants or either of them so to do, yet that the said commissioners had no power or authority to authorize the said defendants so to do, and especially to make vaults under the said street, or to dig holes from the surface of the said street to enable them so to do. To the END therefore that &c. [vide antea, p. 459, and form YI. p. 5, and interrogate to the statements and charges.] And that the said defendants their servants and workmen may be restrained by the injunction of this honorable court from proceeding to dig up any part of the said public street called , and that if they have already dug up any part thereof, that they may be decreed to replace the-same in the same state and condition as it was in before they dug up the same. [And for further relief.] CLXVIII. Information for the purpose of carrying the trusts of a will into execution {which was made before the Qth Greo. 2, cap. 36,) whereby lands were devised for the purpose of building a new College in the town and University of C, and supporting and en- dowing the same. States the will of Sir Gr. D. devising freehold and copyhold estates and also leaseholds after the death and failure of issue of T. G. D. and other persons, unto certain trustees to found a College in C. to be called D. College. That the testator died without revoking his will and without issue, leaving T. Gr. D. his heir at law, who proved the will and entered into possession of the testator's estates. That T. G. D. survived the remainder-men, and that all of them died without issue, whereby the rents and profits of all the said testator's freehold copyhold and leasehold estates became applicable for the purchase of lands to build a new College in the said town and University of C, and for the erection of such College, and for the supporting and endowing the same according to the directions of the said will. That all the trustees died in the testator's life-time, and that upon the testator's decease all his said freehold and copyhold estates and such of the said leasehold estates as were held for lives descended to the said T. G. D. as his heir at law, but subject in equity to the trusts in the said testator's will mentioned, and that on the testator's death all his leasehold estates which were held for years absolute or [ *466 ] *for years determinable on lives vested in the said T. G. D. as his executor. INFORMATIONS. 466 That T. G. D. by his will gave to his wife defendant M. D. all his real and personal estate chargeable with the payment of several an- nuities and legacies, and appointed her executrix. That T. G. D. left the defendant E. N. his heir at law, and that the relators are advised that if T. G. D. was of sound and disposing mind memory, &c. at the time of making his will, and if the same was duly executed, &c. then the aforesaid estates became and then were legally vested in M. D. the widow, but that if T. G. D. was not of sound mind, &c. or the will not duly executed, &c. the rela- tors are advised that his freehold and copyhold estates and the estates held by leases for lives were then legally vested in the said E. N., and that the estates held by leases for years absolute or years deter- minable on lives were legally vested in M. D. as executrix of T. G. D. That M. D. had since the death of her husband entered on all the testator's freehold copyhold and leasehold estates, and was then in possession thereof, and had also got into her possession all the deeds evidences and writings relating thereto. Applications made to her to discover the particulars of all the free- hold copyhold and leasehold estates of which Sir G. D. was seised at the time of making his will and at his death, and to account with the relators for all the rents and profits which had accrued due since the death of T. G. D. and received by the widow or for her use in order that the same might be applied according to the directions of the will of Sir G. D. and to concur with the relators in appointing some per- son or persons to receive the rents and profits of the said estates so that the future income thereof might be secured, and might with the money so due from her be applied when the same should be sufiicient to purchase ground to build a college on according to the said will, and also to deliver all deeds and writings belonging to the said estates to the relators, and also requested her and E. E". as the heir at law of T. G. D. to convey and assign all the said estates to trustees for the benefit of the said college when erected. And the relators well hoped, &c. But that the said M. D. and B. N. pretend ^- That Sir G. D. was not of sound mind, &c. or that his said will was not duly executed, &c. and therefore they insist that on his death all his real estates descended to T. G. D. as his heir at law, and the widow claims the same under the aforesaid will of T. G. D. insisting that his said will was duly executed, &c. and E. N. claims the same insisting that T. G. D.'s will was not duly executed, &c. and there- fore that the same descended to him as heir at law. Charge the contrary and as evidence of the insanity of testator Sir G. D. at the time of making his aforesaid will, charge that T. G. D. soon after said Sir G. D.'s death duly proved his said will as his exe- cutor, and in many respects acted as such. But then they pretend and insist that by virtue of a statute made in the 9th year of the reign of his late Majesty King George the Second, intituled, "An act to restrain the disposition of lands whereby the same become unalienable," wherebyjit was enacted *that after the day of no manors lands tenements rents [ *467 ] advowsons or other hereditaments should be given, &c. the said devise of the said estates for the purpose of building and endowing 467 INFORMATIONS. the said college was void, and therefore that M. D. as devisee and executrix as aforesaid or E. N. as heir at law was entitled to all the said estates. Insist that the will of Sir G. D. having been made long before the passing of the said act of parliament, the charitable purposes thereby intended and directed ought and might take eifect notwithstanding the said act of parliament, and although the said Sir G. D. did not die until after the passing and commencement of the said act ; and therefore that the rents and profits of all his said real and leasehold estates accrued due since the death of T. G. D. ought to be accounted for and applied to the charitable purposes in the will mentioned, and that a receiver or receivers ought to be appointed of the said real and leasehold estates, and that the several deeds and writings relating thereto ought to be deposited in this court or otherwise preserved and taken care of, and that the said estates ought to be conveyed and assigned to proper persons in trust for the said charitable purposes ; but that the said defendants refuse to comply with such requests to them respectively made as aforesaid, and that the said M. D. or her agents by her directions have refused to give the relators or their agents any information of the particulars of said estates, and that well knowing that such particulars would appear by said deeds she has refused to discover the same although often requested thereto. That M. D. at other times pretends that most of the estates which the said T. G. D. was in possession of at his death never were the estates of Sir G. D., or were not purchased or acquired by him until after the making of his said will, and therefore that the same did not pass by the said will. Charge the contrary of such pretences to be the truth. That A. B. (another defendant an annuitant) pretends that the testator Sir G. D. made a codicil to his will whereby he gave unto her an annuity of £ during her life, and that he thereby charged all his lands with payment of the same, and pretends that such codi- cil was made by him whilst of sound mind, &c. and that the same was duly executed, &c. and that she is therefore entitled to the said annuity of £ thereby given to her. Charge that Sir G. D. made no such codicil, or that he was not of sound mind, &c. or that the same was not duly executed, &c. but that if such codicil was duly executed, &c. that the relators are ad- vised that the said annuity ought to be paid out of the personal es- tates of Sir G. D., and ought only to be paid out of his real estate in case of a deficiency of his personal estate for payment thereof. Charge that T. G. D. as executor of Sir G. I), possessed all the assets belonging to Sir G. D. at his death much more than sufficient to satisfy his debts and legacies and the said annuity, and that M. D. as executrix of T. G. D. had possessed all the personal estate belonging to him at his death more than sufficient to answer and make good the personal estate of Sir G. D. possessed by T. G. D., [ *4:68 ] *and therefore the relators are advised and insist that a sufficient part of the personal estate of T. G. D. ought to be set apart for se- curing the said annuity, so that the said testator's real and leasehold estates might be discharged therefrom ; but the said A. B. insists on INFORMATIONS. 468 a right to the said annuity out of the real and leasehold estates in preference to the said charity, and that M. D. refuses to set apart a fund for securing the said annuity. That the defendants Archbishop of Canterbury, Arch- bishop of York, Master of St. J College, and the Master of C- H., {who were appointed by the will of Sir Cr. D. to regulate the college) decline to do such acts as are proper for found- ing and establishing a new college in the said university, according to the directions in the said testator Sir G. D.'s will. And that the said Sir G. D.'s will may be established, and the trusts thereof performed and carried into execution, and that all proper directions may be given for that purpose, and that an account may be taken of all moneys received by the said M. D. in respect of the rents and profits of the said Sir G. D.'s freehold copyhold and leasehold estates become due since the death of the said T. G. D. ; that she may pay the money due on such account as the court shall direct, in order that the same may be applied for answering the pur- poses of the said will ; and that one or more proper person or per- sons may be appointed by the court to receive the rents and profits of all the said freehold copyhold and leasehold estates in order that the same may be secured and applied for the purposes of the said will ; and that the said freehold copyhold and leasehold estates may be conveyed surrendered and assigned as the court shall direct, for the benefit of the said charity, and that all proper parties may join therein, and that all deeds and writings relating to the title of said estates may be brought into court or otherwise preserved for the bene- fit of the said charity ; and that if it should appear that Sir G. D. did duly make and execute such codicil as hereinbefore mentioned to be alleged by A. B., then that a competent part of the personal estate of Sir G. D. may be set apart for securing the payment of the said annuity of £ so that the said freehold copyhold and lease- hold estates may not be subject thereto. [And for further relief. '][2) **OLXIX. Information praying the direction of the court as to the [ *469 ] application of the surplus rents of an estate devised unto trustees in favor of a college for the ienefit of two members thereof ; the surplus rents being by the will directed to be laid out in the pur- chase of advowsons, and the college having thereout purchased as many advowsons as they were capable of holding. {^) To, &c. Informing showeth unto your lordship K. P. A. esq. his Majesty's Attorney-General, at the relation of F. W. of, &c. That J. K. hereto- Testator seis- fore of, &c. but long since deceased, was in his life-time and at the ed of a certain (2) See form No. CLXII. antea, p. 444. (3) By the 45 Geo. 3, c. 101, so much of the 9 Geo. 2, c. 36, aa restrained colleges from purchasing or holding advowsons, was repealed. ^ 469 , INFORMATIONS. manor and time of his decease seised of or otherwise well entitled in fee-simple other lands ; of or to the manor of, &c. and also of or to divers lands and heredita- ments in the said county of Y. And the said J. R. being so seised or entitled as aforesaid, did when he was of sound and disposing mind His will devis- memory and understanding, duly make and publish his last will and to^trustelT^* testament in writing bearing date the day of September , ' and thereby gave and devised the said manor of L. and all other his lands and hereditaments in the said county of Y. unto his executors Upon trust to thereinafter named and their heirs. Upon trust to pay thereout yearly pay 6001. to 600?. to two persons to be chosen out of the University of 0. when ^^° P®g^°j^' they were masters of arts and entered on the physic line by the Arch- arts, to be bishop of Canterbury, Lord Chancellor, or Keeper of the Great Seal, chosen by, &c. the Chancellor of the University of 0. the Bishop of L. the Bishop of W. the two principal Secretaries of State, the Lord Chief Justices of the Courts of K. B. and C. P. and Master of the Rolls, all for the fortheirmain- time being. Or by the major part of them, for the maintenance of tenanceforten ^jjg g^[^ ^y^^ persons for the space of ten years and no longer, the hairof'which ^^^^ ^^ which at least they were to travel in parts beyond the sea they were to . for their better improvement, and in case of their decease or after travel abroad; ^}iq expiration of the said ten years for the maintenance of two other persons to be chosen in like manner and for the same term of years. Vacancies to and SO from time to time for ever ; and if any vacancy should happen be filled up of one or both that the places should be filled up in the space of six from time to monthg^ and the yearly overplus of the rents and profits of his said „, ' , Y. estate he willed to be paid for ever to U. college in the said city rents to heap- of 0. for the buying of perpetual advowsons for the members of the plied in pur- said college ; and he gave and devised all his real and personal estate chasmg ad- -yyliatsoever, charged with and subject to the payment of bequests the members ^nd legacies in his said will mentioned, to the Right Honorable W. of the college; B. esq. then principal Secretary of State, Sir Gr. B. hart. T. S. of, &c. Devise of all and A. K. of, &c. gent, and to their heirs executors and adminis- his residuary tr^tors for ever, and appointed them executors of his said will. And sonal estate to he willed and desired if it might be done by law that his said Y. estate his executors, should be conveyed and settled by his executors on the Master and Direction to Fellows of the U. College for ever, In trust for and for part per- convey Uie *formance of the uses and trusts in his said will declared and herein- the college, before mentioned of and concerning the same estate. And he willed r *470 1 t^^* ^'^ executors in case of the decease of any one or more of them In trust for should join two or more persons of good repute with the survivors of the uses of his them in their trust by such conveyances as should be advised, and •will. so from time to time if need should be, that his will might be the Direction for better and more surely performed. As by the said will duly executed STnumbef of ^^ *'^® presence of and attested by three witnesses, relation being trustees. thereunto had will more full appear. And his Majesty's Attorney Death of the General at the relation aforesaid further showeth that the said tes- testator. tators J. R. departed this life some time after the making and pub- . „ ,. lishing of the said will without altering or revokina; the same ; and Information , .<= i ^ -n , m ■ ,i r~,° t-, -»t , , ■ filed to eetab- that in or about Jiaster Term m the year Sir E. N. knt. his lish the will; Majesty's then Attorney-General at the relation of the Chancellor Masters and Scholars of the University of 0. and Master and Fellows of U. college in 0. aforesaid and others, exhibited his information INFOEMATIONS. 470 in this honorable court against the said W.. B. Sir G. B. T. S. and Decree made A. K. as executors of the said J. R. as aforesaid and others, thereby directing {in- praying (amongst other things) to have the trusts of the said will ference to the carried into execution, and to establish the said gift and devise con- Master to see tained' in the said will of the said Y. estate, and to have the benefit *^** ^ proper thereof ; and the said cause came on to be heard on the 30th day of obtTnecTt^o^ April in tbi year 1716 before the right honorable W. Lord C. then enablethecol- Lord High Chancellor of Great Britain, when it was (among other lege to pur- things) ordered and decreed that it should be referred to Sir T. G. ^^^in 1"'' knt. then one of the Masters of the court to see that a proper license when obtain- was obtained to enable the relators the Master and Fellows of TJ. ed, a convey- coUege aforesaid to purchase in mortmain, and when such license ^""^^ *° ^^, should be obtained it was ordered and declared that the inheritance college, snb- of the estate of the said J. R. in the county of Y. should be vested ject to the in the Master and Fellows by such proper conveyances as the said trusts of the Master should direct, subject to the trust of the perpetual performance powerio let of the said will in respect to the said estate, which for that time the estates at and from time to time they were to let at the best improved rent they ^''^ck rent. could get for the same, and not to take any fine whereby to lessen License grant- the annual value thereof. And his Majesty's Attorney-General at cro^^n'to the the relation aforesaid further showeth that upon the petition of the coilegetohoid said Master and Fellows of U. college aforesaid, his late Majesty the estate de- King George by his letters patent bearinar date granted unto '^isedandto the said Master and Fellows of U. college aforesaid and their sue- other heredi- cessors his special license full power and lawful and absolute authority laments not to take hold and receive in mortmain to them and their successors for exceeding m ever the lands and hereditaments so devised by the said J. R., In trust peAnnum. for them as aforesaid, and also to purchase acquire hold and receive in mortmain to them and their successors for ever or otherwise to or to the use of or in trust for them or their successors from any person or per- sons bodies politic or corporate their heirs and successors respectively, so much other lands tenements rents or hereditaments within that parts of Great Britain called England or the dominion of Wales as might amount to the value of lOOOZ. per annum above all charges and reprises including the said devised lands and hereditaments, and *such advowsons as might be bought by them by the clear profits of [ *471 ] the said lands. As by the said letters patent when produced will more fully appear. And his Majesty's Attorney-General at the re- Conveyanceof lation aforesaid further showeth that by indentures of lease and re- the devised es- lease bearing date the 20th and 21st days of April , and made j^ the^coUege. between the Right Honorable E. Earl of 0. and Earl M. the Right Honorable 0. N. S. esquire, commonly called Lord C. N. S. of, &c. Sir W. B. of, &c. Sir W. W. of, &c. bart. and E. S. of, &c. esquire of the one part, and the Master and Fellows of U. college in the Uni- versity of 0. otherwise called the Master and Fellows of the college of the Great Hall of the University of 0. of the other part, reciting (amongst other things) to the effect hereinbefore set forth; and further reciting that the said W. B. one of the executors named in the said will dying in or about the month of February W. B. of, &c. esquire his son and the said Earl of 0. and Earl M. (then E. H. esquire) were by the surviving executors named in the said will joined 471 INFORMATIONS. The surplus rents after payment of the eOQl. per annum laid out in the jiur- chase of as many advow- sons as the college was capable of holding under the 9 Geo. 2, c. 36. [ *472 ] Thatthe estate being origin- ally little more than sufficient to pay the 600Z. per an- num, has much improv- ed in yalue ; that there is now a large surplus which ought to be applied for with them in the said trust. And also reciting that the said W. B. the son of Sir G. B. and the said T. S. who was before his death called T. B. and the said A. K. being all then deceased, the said Lord 0. N. S. Sir W. B. Sir W. W. and B. S. by virtue and in pursuance of the said will by several deeds-poll duly executed had been nominated and appointed in their room to be joined with the said E. Earl of 0. and Earl M. in the execution and performance of the s^ will, and that the said estate of the said J. R. had been by proper conveyances vested in them and their heirs. It was witnessed that the said E. Earl of 0. and Earl M. Lord C. N. S., &c. &c. as well in consideration of the sum of 5s. &c. and also in performance of the trust in them re- posed and in pursuance of the said will of the said J. R. and of the said decree conveyed unto the said Master and Fellows of U. col- lege aforesaid otherwise called the Master and Fellows of the college of the Great Hall in the University of 0. aforesaid, All that the manor or lordship of, &c. with the rights members and appurtenances thereof in the said county of Y., and divers messuages lands tene- ments and hereditaments therein mentioned with their and every of their appurtenances conveyed by T. R. therein named to the said J. R. deceased and his heirs as therein mentioned, To hold the same unto and to the use of the said Master and Fellows of TJ. college otherwise called the Master and Fellows of the college of the Great Hall of the University of 0. and their successors for ever, Upon the trusts and to the intents and purposes in the said will of the said J. R. deceased and the said decree mentioned expressed and de- clared of and concerning the same. As by the said indentures of lease and release duly executed by the several parties thereto, re- ference being thereunto had when the same shall be produced to this honorable court will more fully appear. And his Majesty's Attorney- General at the relation aforesaid further showeth that the surplus of the rents of the said premises after payment of the said 600Z. per annum to the two travelling Fellows, was received by the said Master and Fellows who laid out the same in the purchase of as many advowsons as they are capable of holding under the re- strictions of the act of the 9th of his late Majesty King George the *Second, intituled, " An act to restrain the disposition of lands whereby the same become unalienable." And his Majesty's Attorney-General at the relation aforesaid further showeth that the said estate of the said J. R. devised as aforesaid, was originally very little more than sufiBcient to pay the travelling Fellows their said salaries, but the same hath of late years been very considerably improved in value, and the said Master and Fellows of the said college having many years ago purchased with the surplus produce thereof, as many advowsons as the said college are capable of holding, there is now a very large sur- plus of the rents of the said estate in the hands of the said Master and Fellows which ought to be applied for charitable purposes as nearly as may be according to the intentions of the said J. R. deceased expressed in his said will concerning the surplus produce of his said Y. estate. And the said Master and Fellows allege that they have so applied the same but R. G. of, &c. esquire alleges that he is the heir at law of the said J. R. deceased, and as such is entitled to the INFORMATIONS. 472 surplus of the rents of the said estates after payment of the said sala- charitable ries to such two travelling Fellows as aforesaid in regard such surplus purposes ; cannot now by law be applied in the purchase of advowsons accord- *>"' *° which ing to the said will of the said J. R. To the end therefore that the h^el'atTaw '' said Master and Fellows of the U. college or the college of the Great claims to be Hall in the University of 0. aforesaid, and the said R. Q. may full entitled. true and perfect answer make to all and singular the several matters aforesaid as fully, &c. [see form VI. p. 5, and interrogate to the state- ments.'] And that an account may be taken under the direction of this Prayer, honorable court of the rents of the said estate and of the application thereof by the said Master and Fellows ; and that the surplus of such rents after answering the purposes expressly directed by the said testator's will so far as the same are now capable of being per- formed, may be employed for the benefit' of the said college in such manner as this honorable court shall think fit. May it please, &c. [see form No. 1, p. 6.] *CLXX. Information at the relation of certain freeholders and in- habitants of a parish, forming a society called " The Twenty- four," hy whom the affairs of the parish were managed, to estab- lish a bequest of stock for the benefit of the poor of a certain district within the same parish, praying also to have the stock transferred into the Accountant- Creneral's name. In Chancery. To&c. Informing showeth unto your lordship Sir A. M. knight his Majesty's Attorney-General, by and at the relation of E. C. R. W. G. &c. &c. all housekeepers and inhabitants having freehold estates within the parish of T. in the county of N., That there hath been That from *from time immemorial within the said parish a certain society con- r *473 "i sisting of twenty-four persons being housekeepers and inhabitants, ^^^^ imme- and having freehold estates within the said parish, and which said moriaiasocie- society hath always been and still is called or known by the name ty of twenty- or description of "The Twenty-four;" twelve of which twenty-four keTpeirfree- have from time immemorial been elected or chosen out of the prin- holders and cipal inhabitants having freehold estates within the township or dis- inhabitants trict of N. S. within the said parish, and the remaining twelve out of li^^s existed the principal inhabitants having freehold estates within the rest of parish and the said parish commonly called the country part of the said parish, called, "The the said twenty-four persons having constantly had the direction and Twenty-four." management of the business and concerns of the said parish. And 7^^ ™^hTh the said Attorney-General at the relation aforesaid also informeth members have your lordship that upon the death of any one or more of the said been chosen. society, or in case of hia or their selling or disposing of his or their freehold or freeholds within the said parish, the survivors and others 35 473 INFORMATIONS. of the said society have been from time to time whereof the memory of man is not to the contrary, used and accustomed to elect and choose, and have accordingly elected and chosen on the Easter Mon- day following such event^ some other proper person or persons to be a member or members of the said society in the room or stead of the person or persons so dying or disposing of his or their freehold as aforesaid. And the said Attorney- General at the relation aforesaid further informeth your lordship that the relators and H. H. late of W. in the county of N. esquire, were the persons who were last elected or chosen as members which composed the said society ; and That the rela- the Said H. H. having lately departed this life, your relators are the tors are the surviving and present members of the said society. And the said present°mem- Attorney-General at the relation aforesaid further informeth your hers. lordship that M. R. late of, &c. widow, deceased, in her life-time duly Will of M. R. made and published her last will and testament in writing bearing bequeathing ^^tg On or about the day of April , and thereby amongst tors £46^6East °^^^^ things appointing R. J. and P. P. of, &c. esq. executors thereof, India Annul- she gave and bequeathed unto her said executors in the words and ties, In trust figures Or to the purport and effect following (that is to say ;) "I give socfely^to le- "ifivise and bequeath unto the said P. P. and R. J. and the survivor ceive the divi- of them and the executors and administrators of such survivor the dends to be sum of £466 East India Annuities, part of which is now standing *PP''5^ ^°f th^ ^^ "^y name in the books of that company. In trust that they my poor of a cer- said trustees and the survivor of them and the executors and admin- tain district or istrators of such survivor, do and shall pay to authorize and permit Tvithm the g^^^ suffer the housekeepers and inhabitants of the township of N. S. ^ "^ ' commonly called " The Twenty-four," for the time being for ever, to receive the dividends interest and produce of the said sum of £466 East India Annuities as and when the same shall become due and payable, In trust to be by them or any five or more of them paid applied and disposed of from time to time for ever, unto and amongst such of the poor of the said township as they shall think proper." As in and by such will or the probate thereof, relation being there- unto had will more fully appear. And the said Attorney-General at the relation aforesaid further informeth your lordship that the said [ *474 1 testatrix *M. R. departed this life on or about the day of April Death of the in the year of our lord , without revoking or altering her said testatrix with- will, and upon or soon after her death the said B. J. and P. P. duly out revoking proved the said will in the proper Ecclesiastical Court, and under- !^ ^^ ' took the executorship thereof. And the said Attorney-General at Ted bythe ' ^^^ relation aforesaid further informeth your lordship that the said executors. testatrix M. R. was at the time of her death possessed of or entitled Testatrix pos- unto a Considerable personal estate consisting of many valuable par- sessed of large ticulars, and particularly she was possessed of or entitled unto acon- tat'e "parttcu- siderable sum of money in East India Annuities to a much larger lariy of East amount than the said legacy ; and upon or shortly after her de- indiaAnnui- cease the Said R. J. and P. P. by virtue of the said will or the pro- amount tS"^ ^^^^ thereof, possessed themselves of all the said personal estate and the legacy ; effects, and procured the said East India Annuities to be transferred And that the into their names. And the said Attorney-General at the relation executors pos- aforesaid further informeth your lordship that the personal estate INFOEMATIONS. 474 and effects late of or belonging to the said testatrix, and possessed sessed them- by her said executors since her decease, were more than sufficient selves of all (exclusive of the said East India Annuities) for the payment of all estate!*^'^^''"'^ her debts funeral expenses and legacies, all which debts funeral ex- That the per- penses and legacies, save the aforesaid charitable legacy, have been souai estate, long since fully paid and discharged ; and the said East India An- exclusive of nuities now remain standing in the names of the said R. J. and P. P. ^nnuufes" '" to answer and satisfy the aforesaid legacy. And the said Attorney- was more than Greneral at the relation aforesaid further informeth your lordship sufficient to that your relators being the persons meant and intended by the ^gbj "nd^ description in the said testatrix's will mentioned, of the house- legacies; all keepers and inhabitants of the township of N. S. commonly called which except "The Twenty-four," hoped that the said R. J. and P. P. would ig\f\"^'^\"' have paid and applied the interest or dividends of the said East been since India Annuities for the benefit of such person or persons as are paid; entitled thereto by virtue of the said testatrix's will. But now And the East so IT IS may it please your lordship the said R. J. and P. P. JP^^^ Aunui- decline to pay the interest or dividends of the said sum of £466 standing in Bast India Annuities unto your relators to be applied according to the names of the direction of the said testatrix's will, alleging that they cannot ^^^ executors do so with safety to themselves without the direction of this hon- legacy. '"^ orable court for their indemnity therein. And the said Attorney- That the exe- Greneral charges that the charitable intentions of the said testa- cutors decline trix are in danger of being frustrated in process of time, when after ^°.?"'^, "^®„ V^' the deaths of the said defendants it may be difficult to find out who legacy with- are or may be the personal representatives of the said testatrix, in out the direc- order to obtain a representative to her, and the obtaining or procur- ^^°'^ '^^^ ^^- ing a representative to her will be attended with considerable ex- q^"1/° ^ pense, and therefore the said Attorney-General and the said relators charge that charge that the said sum of money in annuities aforesaid ought to the intentions be transferred int:o the name of the Accountant-General of this °{ '^^ testa- honorable court upon the trust and for the purposes aforesaid. To t" be^frustrat- THE BNB therefore that the said R. J. and P. P. may upon their edbyfaiiureof several and respective corporal oaths, &c., &c., and more especially ^^^ personal that they may in manner aforesaid answer and set forth whether, &c. Jf^Jg'^^^''''*' *And that the aforesaid charity may be established ; and that the r- H^nr ■^ said defendants R. J. and P. P. may be decreed to transfer the before- L J mentioned sum of £466 in East India Annuities into the name of the j'^gacy ''ought Accountant-General of this honorable court, upon the trust and for to be transfer- the purpose mentioned and expressed in the said testatrix's said red into the will concerning the same, and that the trust thereof may be declared ^'^J^o\°^t^nt- accordingly. And that the interest or dividends which have become General. due thereon since the death of the said testatrix, and which may Prayer. hereafter become due therein, may from time to time forever here- after be paid to the relators and their successors the twenty-four of the housekeepers and inhabitants of the said township of N. S. to be applied in the manner by the said testatrix's will directed, and that such further and other directions may be given for the establishment and maintenance of the said charity as to your lordship may seem meet and this case may require. May it please, &c. [see form No. 1,^.6.] 475 INFORMATION AND BILL. CLXXI. Prayer of an information filed for the 'purpose of establish- ing a charity, and the right of certain persons to nominate the objects thereof, and also for the appointment of new trustees, and praying that the defendants may convey a rent-charge to the new trustees, and deliver up all deeds and writings. And tliat the said charity and the right of the perpetual curate churchwardens constables and overseers of the said parish to nomi- nate the objects thereof may be established; and that an account may be taken of all sums of money received by or by the order or for the use of them the said defendants or any or either of them for or in respect of the said yearly rent-charge, and that what shall be found due upon the taking of such account may be applied and disposed in such manner as this honorable court shall direct, and that the said defendants may be removed from being trustees of said charity, and that new trustees thereof may be appointed by and under the direction and decree of this honorable court, and that the said de- fendants may convey over the said yearly rent-charge to such new trustees upon the trusts aforesaid, and deliver over unto them all deeds papers and writings in their respective custody or power re- lating thereto. \^And for further relief. '\ [ *476 ] **CLXXII. Prayer of an information and bill to establish the bequest of a moiety of a testator's residuary personal estate for the benefit of a charity; and in order thereto, to have an account taken of the testator 8 personal estate, debts, ^c. and the clear residuary estate ascertained, and that one moiety thereof may be invested in the funds, and the dividends thereof paid to the relators and plain- tiffs, to be distributed and applied, by them for the benefit of the objects of the charity. And that the additional legacy given or provided by the said tes- tator's will of a moiety of the interest of the residue and clear surplus of the said testator's personal estate and effects for the benefit of may be established, and that the said charity may have the benefit thereof, and that all proper and necessary directions may be given for that purpose. And that your orators may be declared to be entitled to the distribution thereof for the benefit of the said charity ; and in order thereto, that an account may be taken of the personal estate and effects of the said testator J. S. and of the pro- duce interest or income thereof possessed or received by or by the order or for the use of the said defendants T. R. J. B. and E. M. and the said defendants the Master Wardens and Commonalty of the art or mystery of , and also of the said defendants the Master Wardens Brethren and Sisters of the guild or fraternity of , and every or any of them; and also an account of the said testator's debts INFORMATION AND BILL. 476 funeral expenses and the several legacies given and bequeathed by his said will and codicils ; And that the said testator's personal estate and effects and the produce or money arising by sale thereof may, if necessary, be applied in payment of such debts and legacies (if any remain unpaid) in a course of administration ; and that the residue and clear surplus thereof may be ascertained, and that such part of the said residue as is not or hath not already been invested or placed out at interest in the funds or upon government securities may be so invested or placed out, upon the trusts and according to the directions contained in the said testator's will and first codicil, and that one moiety or equal half part of the interest or dividends of such residue and clear surplus already arisen or become due since the death of the said testator may be paid unto your orators for the charitable purposes mentioned and expressed in the said testator's will, or in such other manner for the benefit of the aforesaid charity as this honorable court shall direct ; and that the future interest or dividends of one equal moiety of the whole of such residue may for ever hereafter from time to time as the same shall become due be paid to your orators to be distributed or applied by them for the benefit of the said charity for the relief of , or distributed or applied in such other manner as this honorable court shall direct for the benefit of the said charity. And that your orators may have such further or other relief in the premises, or that such further and other directions may be given for the benefit of the said charity as the nature of the case may require, and to your lordship may seem meet. May it please, &c. **CLXXIII. Statement in and prat/er of an information and bill [ *477 ] fled against the Skinners' Company(^) for an account of the cha- rity estates vested in them for the support of the free grammar school at Tonbridge ; praying that it may he declared that the increased rents ought to he applied for the support of the school, and that the company may account for the same accordingly, and for a refer- ence to the Master to apportion the rents amongst the different parties entitled under the testator's will, to settle a scheme for the application of the rents of the estates, and the revenues of the school. The Cleric to the company being made a defendant for the purposes of discovery. That ever since the date of the said last-mentioned act the Master Thatthe Skin- Wardens and Commonalty of the mystery of the Skinners of L. have uers' Gom- been and they still are as such trustees as aforesaid in possession of ^og^gssf 'n of" all the messuages lands tenements hereditaments and premises so con- the estates veyed and devised to them as aforesaid in trust for the maintenance conveyed and and support of the said school so founded at T. aforesaid, subject ?^^'^®/*°.,^ nevertheless to the application of some part of the rents and profits support of the (4) See The Attorney- General v. The Skinners' Company, 5 Madd. 173. 477 INIOBMATION AND BILL. school, sub- of the premises devised by the said testator's will to the maintenance rttcati *^* f ^" °^ ^^^ alms-people therein mentioned, and the said school hath been part of the ^"^^^ since and still is continued at T. aforesaid, and there have been rents for the and now are a school-master and usher in the said school, duly ap- support of pointed by the said Skinners' Company. people of the '^iia^t the rents and profits of the said estates and premises so con- foundation of veyed and devised to the said Master Wardens and Commonalty of the testator, the mystery of the Skinners of L. for the purposes aforesaid have That the ygj-y greatly increased, and that the same amount now to several continued and thousand pounds per annum, and that the Master Wardens and Com- the school- monalty of the mystery of the Skinners of L. have received and do master and receive the whole of such rents and profits, and that they have there- pointed by the °^^ ^^P* ^^^ ^'^ keep the said school and premises in repair, and company. have paid and do pay thereout the sum of 20?. annually to the mas- That the rents ter of the Said school, and the further sum of 81. annually to the have greatly usher of the said school, and they have usually for several years past increase . ^^ ^ ^^^^ ^^ ^-^^ ^^j^ Company presented the master and usher of said pany are in ' school with the sum of 42Z. annually between them, and making the possession of whole receipts of the master and usher from the said estates amount the whole only to the sum of 701. per annum, and the whole surplus of the said thereout^^up- ^^^^^ ^^^ profits amounting to several thousand pounds per annum, port the the said Master Wardens and Commonalty of the mystery of the school, and Skinners of L. have annually appropriated and do now appropriate ?e%*and"ush- *° ^^^'^ "^"^ ^S^. er's salaries. That F. Gr. of is now the clerk or secretary of the said Com- and the sur- P^ny, and is in the habit of receiving on behalf of the said Company plus is appro- the rents and profits of the said Company's estates, and of the said pnatedbythe charity estates, and of settling the accounts respecting *the same company to n i • • , n ■ i i ° ■ i ■ • "-,■,-, °-, ■, ^ ■, their own use. ^^'^ fi® IS intrusted With or keeps in his possession all the deeds books r *478 I ^^^ papers of the said Company, and he is well acquainted with all That the clerk *^® partfculars of the foundation and endowments of the said school, to the compa- and of the estates belonging to the same and the rents and profits ny usually re- thereof, and of all deeds evidences and writings relating thereto, rentrof^the ^^^ ^° particular the deed made by H. F. in the said act of parliament estates, and mentioned. settles the ac- That applications have been frequently made to the Master War- counts of the ^gjjg a^Q^ Commonalty of the mystery of the Skinners of L. to has in^is pos- account for the rents and profits of the said trust estates and pre- session all the mises received by them as aforesaid, and apply the same to the deeds, &c. purposes of the trusts upon which the said estates are vested in Applications them, and particularly to apply a competent part of the revenues company to °f *^^ ^^^^ charity to the maintenance and support of the master account for and usher of the said school so founded by the said Sir A. J. as the rents of aforesaid. tater"^' ^^" And that an account may be taken by and under the directions Prayer ^^^ decree of this court of all and singular the messuages lands tene- ments hereditaments and premises conveyed or devised to the defen- dants the Master Wardens and Commonalty of the mystery of the Skinners of L. by the said Sir A. J. or his trustees by the convey- ance and will hereinbefore mentioned, and that it may be declared INFORMATION AND BILL. 478 that all the rents issues and profits of the messuages lauds tenements hereditaments and premises vested in the said corporation by virtue of the said conveyance are applicable and ought to be applied to the support of the said school so founded by the said Sir A. J. at T. as aforesaid, and to the maintenance and support of the schoolmaster and usher therein, and that it may be declared that all the rents issues and profits of the messuages lands tenements hereditaments and premises which passed to the said corporation under the will of the said Sir A. J. are applicable and ought to be applied to the sup- port of the said school, and the maintenance of the schoolmaster and usher, subject to the appointment of part of the said rents and profits amongst the poor alms-men of the foundation of the said Sir A. J., and subject also to the deductions by the said Corporation or Com- pany of a proportion of the said rents for their trouble, according to the proportion of £10 to the rents of the said estates at the date of the said will, and that it may be referred to one of the Masters of this court to take an account of all and singular the rents issues and profits of the several estates and premises belonging to the said charity, and other the revenues thereof received by the said defendants the Mas- ter Wardens and Commonalty of the mystery of the Skinners of L. or by their order or for their use, and of the applications and dis- positions thereof, and that they may answer such parts of the said rents profits and revenues as shall appear to have been improperly applied by them from such time as this court shall direct, and that it may be referred to the said Master to apportion the rents of the estates and premises and other revenues devised by the will of the said Sir A. J. amongst the difi'erent parties interested in the same under the said will, and to settle a plan for the future ap- plication of all the rents and profits of the estates and other *the revenues belonging to the said school at T. to the uses of the [ *47'9 J said school and of the schoolmaster and usher thereof, and that for the purposes aforesaid all necessary directions might be given. {^And for general relief. '\ *CLXX1V. Information and bill (in the nature of a bill of peace) to restrain the inhabitants of a certain district from buying or bringing therein for the purpose of sale or consuming in their own houses or using any corn, grain, flour, malt, or meal which had not been ground at the relator's mills, which were ancient mills originally parcel of the possessions of the Duchy of Lancaster ; Praying also for an account of all the corn, ^e. used by the de- fendants in their houses, which according to the custom ought to have been ground at the relator's and to have a value set thereon; containing statements of informations filed by former proprietors of the mills against the inhabitants of the district, the establish- 479 INFORMATION AND BILL. ment of the custom on the trial of issues directed hy the court, and the decrees made in the causes.(5) f4i^Ax^ ^)/n^ -' ( The interrogatories are inserted.) To the Right Honorable Nicholas Lord Bexley, Baron Bexley of Bexley in the county of Kent, Chancellor of his Majesty's Duchy and County Palatine of Lancaster. Statement of an informa- tion and bill exhibited by J. S. and W. N. against S. H., T. C, J. L. and W. V. [ *480 J Stating that King James was seised of the manor of B., and certain corn mills, with all suit and soke thereto be- longing. And a custom for all tenants, &;c. within the manor to do suit and soke to, and grind all corn, &c. nsed within the manor and Inform-ing showeth unto your lordship W. W. esquire his Majesty's Attorney- t> j the relators' Spent in their or any ot their houses within the said manor ot 15. ana mills ought to within two miles of the said B. mills at any other mill or mills or ''*'h'^t°d^"'^ other engine or engines save the said relators' said mills ; and that sui^ and soke t^e Said defendants in the said cause and all other the said tenants thereto, and freeholders copyholders and inhabitants within the said manor of B. grind all their ^nd Within two miles of the said B. mills, should be and they were suchmiiis^and ^^ ^^^^ manner restrained from buying or bringing into the said no others ; manor of B. and within two miles of the said mills, for the purpose and declared of selling Or disposing of the same to any of the said tenants free- that the cus- holders copyholders and inhabitants within the said manor of B. and ^°r^veA^ ^^ ' within two miles of the said B. mills to be used spent or consumed That the ten- therein, any corn grain flour malt or meal ready ground, or from ants, &c. consuming or using the same or any part thereof at or in their res- ought to pay pective house or houses within the said manor of B. and within two ^ me'd"^ ^P*" miles of the said mills of the said relator ; and they were in like man- But the court ^^^ ^'^** restrained from making baking or brewing any flour meal declared that Or malt whieh should not hare been ground at the said B. mills into in case the any bread beer ale or other liquor to be spent used sold or disposed '^T' ^und'*^ °^ ^y them respectively in order to be used spent and consumed within twen- within the said manor of B. and within two miles of the said B. mills ; ty-four hours and they were in like manner also restrained from using spending after the same qj. consuming any corn malt or other grain ground in their said houses tenants 'ought respectively which had not been ground at the said relator's said mills ; to be at liber- and it was further ordered that the clerk of the Council of this court ty to take the qj. }jjg deputy should take an account of all the corn grain and malt w^re^-^^' which according tp the said custom ought to have been ground by r *490 1 ^^^ ^^^^ defendants or either of them at the *said mills of the said '- -' relator J. S. and whieh had been by them respectively ground else- tual iniunc- " where in derogation of the said custom since the 24th day of June tion granted 1772 ; and it was further ordered that the said clerk of the Council to restrain all qj. jjig deputy should Compute or set a value upon the toll or mule- Ac^ frmn erect- ^^^^ ^^ such corn grain and malt, according to the rate and propor- ing or using tion therein mentioned, (that is to say :) the toll or mulcture of such other mills, wheat one-sixteenth part thereof, and of such shelling oats and grind- *"■' ing the same into meal one twenty-fourth part thereof, and of such ?° J°™riDg- ™*^* ^^ unheaped peek to a quarter containing nine bushels, and of ing into the such peas beans barley and rye one-sixteenth part thereof respec- manor and tively; and it was further ordered and decreed that what should be ^'1'^'° fThe fo'^'^d to ^^ t^® value or amount of the toll or mulcture of such corn mills for the grain and malt withdrawn from the said mills of the said relators INFORMATION AND BILL. 490 should be paid by the said defendants respectively to the said rela- purpose of tor J. S. ; and for the better taking the said accounts, the parties ^^"'"S to any ■were to be examined on interrogatories as the clerk of the Council anjf corn &c. or his deputy should direct, who in taking the said accounts was to to be used make all parties all just allowances ; and it was further ordered and therein, decreed that the said defendants S. H. and W. V. shouM pay unto -'^"d from the said relator J. S. his costs of the said suit, and of the trial of the "g o7brew- issues directed by the decree made on the hearing thereof, together ingl any flour, ■with the costs of the motion for a new trial, to be taxed by the said ™eai,_or malt clerk of the Council or his deputy ; and it -was further ordered that "h^ fektor'^s'" any of the parties should be at liberty to apply to this court as there mills, should be occasion. As in and by the said information and bill an- or using any s-wers decrees and other proceedings had in the said cause now filed =°™j &<=. in as of record in this honorable court, reference being thereunto had not' ground\t ■will more fully appear. And the said Attorney- General at the rela- the relators tion aforesaid, and your orators and oratrixes further show unto ^'"s; your lordship, that the said relator and complainant J. S. (your ora- And the ne- tor J. Gr. S.'s said grandfather) afterwards and after obtaining the coumTdlrect- said decree, continued to be so seised as aforesaid of all the said ed to be mills suit and soke with all the rights members and hereditaments taken. thereunto belonging, until the day of , when he died seised S. H. and w. thereof intestate, as to the same, leaving the said J. H. S. your ora- T^ -"hlT^ilt'" tor J. Gr. S.'s said late father his eldest son and heir at law, and who j. s. his costs thereupon became and ■was until the time of his death hereinafter of the suit and mentioned, seised of the said mills suit and soke ■with all the rights °/ *?® *"^^ °^ members and hereditaments thereunto belonging in fee-simple, at and and of a 'mo- under the aforesaid yearly fee-farm rents due and payable for the tion for a new same, subject however after the execution of the settlement herein- *"'^^- after mentioned, to the trusts of such settlement. And the said f^'^.^j^'i* '^^'*'' Attorney-General at the relation aforesaid, and your orators and tinned seised oratrixes further show, that the said J. H. S. your orator J. G. S.'s up to the time said late father being so seised of the said mills suit and soke with all the °^ ^^^ death. rights members and hereditaments thereunto belonging as aforesaid, on ^testate '^'^'^ or about the 15th day of April by indentures of lease and release leaving i. H. bearing date respectively the 14th and 15th days of April in the same S. his heir, year, and made and executed previously to and in consideration of a mar- „ "^0°^'^^"^*' riage afterwards had between the said J. H. S. and your oratrix Lady geised of the E. A. S. then Lady E. A. F. conveyed (among other hereditaments) mills, and *the said mills suit and soke ■with all the rights members and here- [ *491 ] ditaments thereunto belonging unto your orators Lord J. F. and G. continued so W. A. their heirs and assigns for ever. To the use of the said J. H. seised until S. and his heirs until the said marriage should he solemnized, and g^bect'to^'he from and immediately after the solemnization thereof. To the use of limitations Lord H. F. and Sir W. 0. their executors administrators and assigns contained in a for and during the term of ninety-nine years thence next ensuing, settlement ex- ■without impeachment of waste. Upon trust to secure the payment to ^p^^ ti/m ™ your oratrix Lady E. A. S. of the sum of £400 per annum during riage. the joint lives of your oratrix and the said J. H. S. as therein men- Indentures of tioned, (and which annuity has been fully paid and satisfied to your j^ase and re- last-named oratrix,) with remainder, To the use of the said J. H. by j^. h!^ ^ S. and his assigns during his natural life, without impeachment whereby tli'e 491 INFORMATION AND BILL. mills with of Waste, with remainder, To the use of your orators Lord J. F. and other heredi- Q -^ ^_ Upon trust to preserve contingent remainders during the limited ^^^^ of ^^6 Said J. H. S., with remainder, To the use intent and pur- To the use of pose that your oratrix Lady E. A. S. if she should survive the said J. H. S. until J. H. S., might have and receive the yearly sum of .£1200 during the marriage, j^gj. jjfg^ j^j^^ might have all the usual remedies for raising and en- soiemnizatioa forcing payment of the same, with remainder, To the use of your thereof, orators Lord C. F. and Gr. W. by his then name of G. S. their exe- To the use of cutors administrators and assigns for and during the term of one trustees for 99 thousand years, Upon the trusts thereinafter mentioned, with re- curing pin*" mainder. To the use of the said J. H. S. his heirs and assigns for money to ever ; And the trusts of the said term of one thousand years were plaintiff E. A thereby declared to be for securing to your oratrix Lady E. A. S. ed wife"'*""^' the said yearly sum of £1200 during her life, and subject thereto for Remainder To i"*isii>g Certain sums of money therein mentioned, as the portions of the use of J. the younger children or younger child of the said then intended mar- H. s. for life ; riage. As by the said indentures of lease and release when pro- Remainder To duced will appear. And the said Attorney-General at the relation trusteeslo aforesaid, and your orators and oratrixes further show unto your preserve con- lordship, that the said intended marriage was duly had and solemn- tingent re- ized between the said J. H. S. and your oratrix Lady E. A. S., and mamders ; ^.jjg^j. ^j^g^g were issue of the said marriage your orators and oratrixes fhTusethLt^" J.G. S., H. S., E. S. S., G. L. S., M. I. S., and F. S. And the plaintiff E. A. Said Attorney-General at the relation aforesaid, and your orators and S. might re- oratrix es further show unto your lordship, that the said J. H. S. on tur\'^nt°'°' °^ about the day of , by a certain indenture of demise, de- charge of mised the said water corn-mills within the manor of B. aforesaid, i200i. during and the suit soke and all other the benefits and advantages belong- her life, jjjg thereto, unto your orators J. B., J. E., and S. P., To have and Remamder To j.^ ]^q\^ ^^e same for the term of years to commence on the the use ot,_ . "^iiii trustees for day ot then next ensumg, at and under the clear yearly rent 1000 years ; of £ payable to the said J. H. S. his heirs and assigns ; and by Remainder To virtue of such demise, your orators J. P., J. E., and S. P. on the H V^hifte ^^^^ ^^^ °^ ^^ *^® y^^*" ' ^i^tsred upon and took pos- The trusts of session of the said mills and premises, and have ever since held and the 1000 years enjoyed and still hold and enjoy the same under the said demise, or term declared are entitled so to do and to receive the profits thereof. And the *? ^^I^'^ ^■®'i"" said Attorney-General at the relation aforesaid, and your orators ture rent- and oratrixes further show unto your lordship, that the said J. H. S. charge, and *being SO seised as aforesaid of and in the said mill suit and soke for raising a,nd the rights members and appurtenances thereof, departed this the younger ^'^^ ^^ °^ about the day of intestate as to the said mills children of the Suit and Soke and the rights members and appurtenances thereto marriage. belonging, leaving your orator J. G. S. his eldest son and heir at [ *492 ] law, your oratrix Lady E. A. S. his widow, and your orator and That the mar- oratrixes H. S., E. S. S., G. L. S., M. I. S., and F. S. his younger riage was duly children him surviving; and the said J. H. S. by his last will and and the issue testament in writing dated the day of 1820, appointed thereof six your Oratrix Lady E. A. S. the guardian of the persons of your children, orators and oratrixes his children, and also thereby appointed your p am 1 s. orators G. W. then G. S. and G. W. A. the guardians of the estates INEOEMATION AND BILL. 492 of his said children and also the executors of his said will, and they Lease of the have since duly proved the same in the proper Ecclesiastical Court, mills executed And the said Attorney-General at the relation aforesaid, and your pfajn'tiffg j p orators and oratrixes further show unto your lordship, that upon the j. E. and s! F. death of the said J. H. S. in manner aforesaid, the said mills suit who are still and soke and all the rights members and hereditaments thereunto ihereofTnd°r belonging descended upon your orator J. G. S. as such eldest son such lease. and heir at law as aforesaid, and he thereby became and hath ever Death of J. H. since been and still is seised of the said mills suit and soke and the S. intestate as rights members and hereditaments thereunto belonging in fee-simple *° *^^® ""''^.' subject however to the trusts of the said term of one thousand years tiffY'cf sXs therein. And the said Attorney General at the relation aforesaid, heir at law, and your orators and oratrixes further show unto your lordship, that and his widow ever since the said decree of the 31st day of January 1782, the said c[J,^/reQ°g^7- annual fee-farm rents have been duly paid or satisfied by or on the Tiving. behalf of the said relator J. S. and the said J. H. S. and your ora- The will of J. tors J. G. S., and the said water corn-mills and premises have ever H. S. appoint- since such decree been kept and now are in good repair and condi- ^g his widow tion, or such of them as are suflBcient for the suitors thereto, and dian of the millers servants loaders and horses sufficient to do attend and des- persons of the patch the business and duty of the said water corn-mills have been P?^!°'!^^' '^'^'^ retained kept and paid, and are now by your orators and oratrixes w^'an'd G. W. or some of them retained kept and paid to do the business and duty A. guardians of the said water corn-mills, and that the said B. mills are and al- of their es- ways have been since the making of the said decree sufficient to cutMs'^of Ws^" grind all such corn grain and malt of the said tenants freeholders will, and that and copyholders and inhabitants within the said manor and within they have two miles of the said mills, which by them may be expended or used "^l^^ * ® ground in their houses within the said manor and within two miles That upon the of the said mills. And the said Attorney-General and your ora- death of J. H. tors and oratrixes well hoped that the inhabitants of the said manor S. the mills living and residing within two miles, of the said B. mills would have ^fain^t'iffs J % observed the said customs declared by this honorable court in man- s. as his heir ner aforesaid to have been well proved, and would have ground at law, who all their corn grain and malt had upon their lands and bought t^g^'^'y'^'^j^'^ and spent ground and consumed in their houses at the said jgct to the B. mills, and that they would not have bought and brought into trusts of the the said manor of B. and-within two miles of the said mills for looo years the purpose of selling or disposing of the same to any of the said ^'[^^ .„„ -■ *tenants freeholders copyholders and inhabitants within the said manor L ^^^ J of B. and within two miles of the said B. mills to be used spent or That ever ,,. . • n li 11 jj? since the ae- consumed therein, any corn gram flour malt or meal ready ground for cree, the fee- the purpose of the same being consumed or used at or in their respec- farm rents tive house or houses within the said manor of B. and within two miles h^^^ been of the said mills, and would not have made baked or brewed any flour ^'^J^^ '.,, meal or malt which had not been ground at the said B. mills, into ^"pt in repair, any bread beer ale or other liquor to be spent used or sold or disposed and millers, of by them in order to be used spent and consumed within the said servants, &c. manor of B. and within two miles of the said mills, and would not a" thTbus^ have used spent or consumed any corn malt or other grain ground in ness thereof; their said houses respectively which had not been ground at the said and that the 493 INFORMATION AND BILL. mills have al- B. mills. BuT NOW SO IT IS may it please your lordship that W. R., ways been g_ jj^^ j^ -yf., J. B., J. D. and J. T. all of whom have been ever since g'jSd a^uo^rn, t^e death of the said J. H. S. and now are tenants freeholders copy- &c. consumed holders residents and inhabitants within the said manor of B., and all by the inhabi- of -whom have ever since the death of the said J. H. S. lived and re- the m^or iTnd ^^^^^ ^°is house ; meal whereof have been so used spent and consumed as aforesaid, in ij^^ ^ij^e the same manner as if the same had been ground, as it ought to Lamst S. R. have been at the said B. mills ; and that the said defendants have and J. T.) not nor has any of them accounted for or paid or satisfied such toll That the de- or mulcture or any part thereof to your said last-named orators or fendants have any of them ; and that large sums of money are now due and owing gujt^and'soke to your last-named orators from the said defendants respectively in to the relator's respect thereof, and so it would appear if the said defendants would mills, and respectively set forth as they ought to do, a full true and 'particular ""f^J f°j.^t^' account of all the flour and meal respectively used spent or consumed ton go ^n^,_ by them respectively since the death of the said J. H. S. at or in drawn by their respective houses within the said manor of B. and within two ''"^m ; miles of the said B. mills, and when and where and from whom they ^^^* no7ac- *respectively purchased or obtained the same and each and every ^ ^ ^ part thereof, and where the same and each and every part thereof L ' had been ground, and what if any parts or part thereof had been g°°i"gg3 °^°^ ground at the said B. mills, and if any part or parts thereof had been ton^ and large ground at the said B. mills, when and for whom the same was so sums are still ground and how the defendants respectively make out the same, and ^"jfj^^^o^f ™ their respective reasons and grounds for knowing or believing the appear from same ; and the said defendants J. B. and J. D. threaten and intend the accounts to bring or to cause to be brought into the said manor of B. and required. within two miles of the said B. mills, for the purpose of selling or fg^^'^*^^ j^'g disposing of the same to the said tenants freeholders copyholders and and j. D. " inhabitants within the said manor and within two miles of the said threaten to 495 INFORMATION AND BILL. bring into the manor and within two miles of the relator's mill for the pur- pose of selling the same to the inhabi- tants to be consumed therein, corn, grain, &c., and tliat all the defendants threaten to consume in their houses flour, &c. not ground at the relator's mills; and that they ought to be restrained therefrom. Charge as to accounts, books, &c. VI. Interrogato- ries to the statements. [ *496 ] B. mills to be used spent or consumed therein, divers quantities of corn grain flour malt or meal ready ground and not ground in the said B. mills, and all the said defendants threaten and intend to use spend and consume at and within their respective houses within the said manor of B. and within two miles of the said B. mills, flour and meal or flour or meal which has not been ground at the said B. mills with- out paying or satisfying to your orators and oratrixes or any of them the toll or mulcture for grinding the same or any part thereof, and which the said defendants ought, as the said Attorney-General and your orators and oratrixes submit, to be restrained from doing by the injunction of this honorable court. And the said Attorney-General and your orators and oratrixes further charge that the said defend- ants have or lately had in their or some of their possession custody or power, divers accounts books of account receipts documents vouchers memorandums papers and writings relating to the several matters aforesaid, and whereby, if produced, the truth of the matters aforesaid or some of them would appear, and which they ought to produce, but which they refuse to do. All which actings doings and pretences of the said confederates are contrary to equity and good conscience, and tend to the manifest wrong and injury of your said relators and orators. In consideration whereof and forasmuch as your said relators and orators cannot be fully relieved in the premises but in this hon- orable court where matters of this nature are properly cognizable and relievable, To THE END therefore that, &c. [Proceed as in form VI. p. 5.] And more especially whether on the 22d day of November 1775 or at some other and what time the said J. S. (the grandfather of your orator J. G. S.) and W. N. did not exhibit their information in the name of his Majesty's then Attorney-General of the said Duchy at their relation in this honorable court, and also their bill of com- plaint, against the said S. H. T. C. J. L. and W. V. or some and which of them, or some other and what persons ; And whether it was not thereby stated and prayed to such purport and effect as hereinbefore in that behalf mentioned, so far as the same is herein set forth, or to some other and what purport and effect ; And whether ' such statements or some and which of them were not true, or how otherwise ; And whether such proceedings were not had and such decree pronounced in the said suit as are hereinbefore in that be- half mentioned, or what other proceedings and decrees were *had and pronounced therein ; And whether the said relator and com- plainant J. S. did not after obtaining the said decree continue to be so seised as aforesaid of all the said mills suit and soke with all the rights members and hereditaments thereunto belonging until the time of his death, or how otherwise ; And whether he did not depart this life on the 13th day of February 1811 or at some other and what time intestate as to the same, or how otherwise ; And whether he did not leave the said J. H. S. his eldest son and heir at law, or how otherwise ; And whether the said J. H. S. did not thereupon become and whether he was not until the time of his death seised of the said mills suit and soke with all the rights members and hereditaments INFORMATION AND BILL. thereunto belonging in fee-simple at and under the aforesaid yearly fe_e-farm rents due and payable for the same, or how otherwise, sub- ject as hereinbefore in that behalf mentioned or in some other and what manner ; And whether the said indentures of fease and release hereinbefore mentioned to bear date the 14th and 15th days of April 1814 were not duly made and executed by and between such parties and of such date purport and effect as hereinbefore in that beha,lf mentioned, so far as the same are herein set forth, or were not duly made and' executed by and between some other and what parties and of some other and what date purport and efiFect ; And whether the said intended marriage was not duly had and solemnized between the said J. H. S. and your oratrix Lady B. A. S. or how otherwise ; And whether there were not issue of the said marriage your orators and oratrixes hereinbefore in that behalf named, or some other and what issue, or how otherwise ; And whether the indenture of demise here- inbefore mentioned to bear date the day of was not duly made and executed between and by such parties and of such date pur- port and effect as hereinbefore in that behalf mentioned, so far as the same is herein set forth, or was not duly made and executed between and by some other and what parties and of some gther and what date purport and effect ; And whether by virtue of such demise your ora- tors J. P., J. E., and S. P. did not on the day of , or at some other and what time enter upon and take possession of the said mills and premises ; And whether they have not ever since held and en- joyed, and whether they do not still hold and enjoy the same under the said demise, or how othewise ; And whether they are not entitled so to do or to receive the profits thereof, or how otherwise ; And whether the said J. H. S. did not depart this life on the day of , or at some other and what time ; And whether or not intestate as to the said mills suit and soke and all the rights members and appurtenances thereto belonging, or how otherwise ; And whether he did not leave your orator J. G. S. his eldest son and heir at law, your oratrix Lady E. A. S. his widow, and your orators and oratrixes hereinbefore in that behalf named his younger children, him surviving, or how otherwise; And whether the said J. H. S. did not by his last will and testament in writing dated the day of 1820 or of some other and what date appoint your oratrix Lady E. A. S. the guardian of the persons of your orators and oratrixes her children ; And whether he did not thereby appoint your orators G. W. then Gr. S. and Gr. W. A. the guardians of the estates of his said children, *and whether or not also the executors of his said will, or how other- [ *497 ] wise ; And whether they or some or one and which of them have or has not since duly proved the said will in the proper or some and what Ecclesiastical Court ; And whether upon the death of the said J. H. S. the said mills suit and soke and all the rights members and hereditaments thereunto belonging did not descend upon your orator J. G. S. as such eldest son and heir at law as aforesaid, or how other- wise ; And whether he did not thereby become and whether he has not ever since been and is not still seised of the said mills suit and soke and the rights members and hereditaments thereunto belonging, in fee-simple subject as hereinbefore in that behalf mentioned, or how 497 INFORMATION AND BILL. otherwise ; And whether ever since the said decree of the 31st day of January 1782 the said annual fee-farm rents have not been paid and satisfied by or on the behalf of the said relator J. S. and the said J. H. S^ and your orator J. Gr. S. or how otherwise ; And whether the said water corn-mills and premises or such of them as are sufficient for the suitors thereto have not ever since such decree been kept and whether they are not now in good repair and condition, or how other- wise ; And whether millers servants loaders and horses sufficient to do attend to and despatch the business and duty of the said water corn-mills have not been retained and kept and are not now by your orators and oratrixes or some of them retained kept and paid to do the business of the said water corn-mills, or how otherwise ; And whether the said B. mills are not now and whether the same have not been ever since the making of the said decree sufficient to grind all such corn grain and malt of the said tenants freeholders copyhol- ders and inhabitants within the said manor and within two miles of the said mills which by them may be expended or used ground in their said manor and within two miles of the said mills, or how other- wise ; And whether the said W. E.., S. R., J. W., J. B,, J. D. and J. T. or some or one and which of them have or has not been ever since the death of the said J. H. S. and are or is not now tenants freeholders copyholders residents and inhabitants tenant freeholder^ copyholder resident or inhabitant within the said manor of B. or how otherwise ; And whether they or some or one and which of them have or has not ever since the death of the said J. H. S. or from some other and- what time lived and resided, and whether they or some or one and which of them do or does not now live and reside, within two miles of the said mills so belonging to your relator and orator J. G. S. as aforesaid, or how otherwise ; And whether the said defendants or some or one and which of them have or has not brought or caused to be brought into the said manor of B. and whether or not within two miles of the said mills for the purpose of selling or disposing of the same or some and what part thereof to the tenants freeholders copy- holders and inhabitants or some and which of them or some other and what persons within the said manor of B. and whether or not within two miles of the said B. mills or some of them to be used and spent or consumed therein or for some other and what purpose large or some and what quantities or quantity of corn grain flour malt and meal or some and which of them ready ground, and whether or not which had not been ground at the said B. mills, or how otherwise ; £ *498 ] And whether they or some or one and which of them *have or has not sold or disposed of the same or some and what part thereof to the said tenants freeholders copyholders and inhabitants or some or one and which of them, or some other and what persons or person, or how otherwise ; And whether the said defendants or some or one and which of them have or has not since the death of the said J. H. S. used spent and consumed at or in their or some or one and which of their houses within the said manor of B. and whether or not within two miles of the said B. mills divers large or some and what quantities or quantity of flour and meal or flour or meal which had not been ground at the said B. mills, or how otherwise ; And whether INFORMATION AND BILL. 498 the said J. B. and J. D. or one and which of them have or has not ever since the death of the said J. H. S. been and are or is not now the occupiers of a corn-mill situate in the township of H. aforesaid, or how otherwise ; And whether the said township is not near to and whether the same is within the manor of B. or within two miles of said B. mills, or how otherwise ; And whether the said last-named defendants or one and which of them have or has not since the death of the said J. H. S. ground or caused to be ground large or some and what quantities or quantity of corn and grain at their said mill at H. or elsewhere and where, and whether or not made large or some and what quantities or quantity of flour and meal flour or meal therefrom, or how otherwise ; And whether the said last-named de- fendants or one and which of them have or has not since the death of the said J. H. S. used spent and consumed large or some and what quantities or quantity of the flour and meal flour or meal so ground at their said mill as aforesaid or elsewhere and where, at or in their or his houses or house within the said manor of B. and whether or not within two miles of the said B. mills, or how otherwise ; And whether the said last-named defendants or one and which of them have or has not sold or disposed of large or some and what quantities or quantity of flour and meal flour or meal, or other parts of the said flour and meal flour or meal as aforesaid ground at their said mill at H. afore- said or elsewhere and where, to the said defendant J. W. ; And whether or not to some and what other tenants freeholders copyhold- ers and inhabitants or some other and what persons or person within the said manor of B., and whether or not within two miles of the said B. mills to be used spent or consumed therein, or how otherwise ; And whether the said J. W. and whether or not some and what other tenants freeholders copyholders and inhabitants or some other and what persons or person within the said manor of B. and whether or not within two miles of the said B. mills, have or has not used spent and consumed such flour and meal flour or meal or some and what part thereof at or in their or his houses or house within the said manor of B., and whether or not within two miles of the said B. mills or how otherwise ; And whether the said W. R. has not since the death of the said J. H. S. bought or obtained from the said W. S. and whether or not from various or some and what other persons or person divers large or some and what quantities or quantity of flour and meal flour or meal which had not been ground at the said B. mills, or how otherwise ; And whether he has not used spent or con- sumed the same or some and what part thereof at or in his house- *within the said manor of B., and whether or not within two miles [ *499 ] of the said B. mills, or how otherwise ; And whether the said S. E. and J. T. or one and which of them have or has not since the death of the said J. H. S. purchased or obtained from divers or some and what persons or person large or some and what quantities or quan- tity of flour and meal flour or meal which had not been ground at the said B. mills, or how otherwise ; And whether they or one and which of them have or has not used spent or consumed the same or some and what part thereof at or in their or one and which of their houses or house within the said manor of B. and whether or ^99 INFORMATION AND BILL. not within two miles, of the said B. mills, or how otherwise ; And whether the said defendants or some or one and which of them have or has not in manner aforesaid, and whether or not in some other and what manner, withdrawn and refused to do suit and soke to the said B. mills, or how otherwise ; And whether they or some or one and which of them ought not to account for and paj and satisfy to your orators J. P., J. E. and S. P. or some or one and which of them the toll and nmlcture for grinding the said corn and grain, the flour and meal whereof have been so used and spent or consumed by them as aforesaid, in the same manner as if the same had been ground at the said B. mills, or how otherwise, and if not why not ; And whether the said defendants or any and which of them have or has accounted for or paid or satisfied such toll or mulcture or any and what part thereof to your said last named orators or any and which of them, and if yea, when where and how and to whom ; And whether large or some and what sums or sum of money are or is not now due and owing to your said last-named orators or some or one and which of them in respect thereof, or how do the defendants make out the contrary ; And that the said defendants may set forth a full true and particular account of all the flour and meal respectively used spent or consumed by them respectively since the death of the said J. H. S. at or in their respective houses within the said manor of B. and within two miles of the said B. mills, and when and where and from whom they respectively purchased or obtained the same and each and every part thereof, and where the same and each and every part thereof had been ground, and what if any parts or part thereof had been ground at the said B. mills, and if any parts or part thereof had been ground at the said B. mills, when and for whom the same was so ground, and how the defendants make out the same, and their respective grounds for knowing or believing the same ; And whether the said defendants J. B. and J. D. or one and which of them do or does not intend or threaten to bring or cause to be brought into the said manor of B., and whether or not within two miles of the said B. mills, for the purpose of selling or disposing of the same to the said tenants freeholders copyholders and inhabitants within the said manor of B. and whether or not within two miles of the said B. mills to be used spent or consumed therein, divers large or some and what quan- tities or quantity of corn grain flour malt and meal or corn grain flour malt or meal ready ground and not ground at the said B. mills or how otherwise ; And whether all the said defendants or some or one and which of them do or does not intend or threaten to use spend [ *500 ] *or consume at and within their or some or one and which of their houses within the said manor of B. and whether or not within two miles of the said B. mills, flour and meal or flour or meal which had not been ground at the said B. mills ; And whether or not without paying or satisfying to your orators and oratrixes or any of them the toll or mulcture for grinding the same or any part thereof, or forrdis^ovei^ ^°^ Otherwise ; And whether the said defendants or some or one of the ac- and which of them have or has not now or had not lately or at some counts, books time and when last in their or some or one and which of their pos- o^accoun , session or power divers or some and what accounts books of account INFORMATION AND BILL. 500 receipts documents vouchers memoranda papers and writings ac- count book of account receipt document voucher memorandum paper or writing relating to the matters aforesaid or some and which of them ; And that the said defendants may set forth a full true or par- ticular list or schedule of all the said accounts books of account re- ceipts documents vouchers memoranda papers and writings account book of account receipt document voucher memorandum paper and writing which now are or is or ever were or was in their or any of their possession or power, distinguishing such of them as now are or is in their or any of their possession or power, and that they may set forth what have or has become of such of them as are or is no longer in their or any of their possession or power ; And that they may leave such of them as are or is in their respective possession or power in the hands of their respective clerks in court for the usual purposes. And that the said defendants may answer the premises ; And that Prayer. the said defendants may be restrained by the injunction of this hon- orable court from buying or bringing in to the said manor of B. and within two miles of the said mills for the purpose of selling or dis- posing of the same to any of the said tenants freeholders copy- holders or inhabitants within the said manor of B. and within two miles of the said B. mills to be used spent or consumed therein, any corn grain flour malt or meal ready ground, and from consuming or using the same or any part thereof at or in their respctive house or houses within the said manor of B. and within two miles of the said B. mills ; And that they may be in like manner restrained from using spending or consuming at or in their said respective houses or any of them any corn malt or other grain flour or meal which have or hath not been ground at the said B. mills ; And that an account may be taken by and under the decree of this honorable court of all the corn grain flour and meal used spent or consumed by them respectively as aforesaid at or in their respective houses which ac- cording to the said custom ought to have been ground at the said B. mills, since the death of the said J. H. S., and that upon such account being taken, the clerk of the council of this honorable court or his deputy may be directed to compute and set a value upon the toll or mulcture of such corn grain and malt flour and meal not ground at the said B. mills ; and that what shall be found to be the value or amount of the toll or mulcture of such corn grain and malt flour and meal may be decreed to be paid by the said defendants respectively to your orators J. P., J. E. and S. P. ; And that your ^orators may have such further and other relief in the premises as [ *501 ] the nature and circumstances of their case may require and to your lordship shall seem meet. May it please, &c. [see forms No. 1 and 4, p. 6.] Pray subpoena and injunction against J. B., J. i>., W. B., S. B., J. W., and J. T. •=502 PETITIONS BY INFANTS. *CHAPTER VII. PETITIONS. *I. Petition hy an infant for the appointment of a guardian and allowance of maintenance. In Chancery. Between J. D. and "W. T., . . Plaintiffs, and W. W., R. Q., T. D., an infant, by B. T. his guardian, and the Governors and Directors of the South Sea Com- pany, Defendants. To the Right Honorable the Master of the Rolls. The humble Petition of the said Plaintiff W. T. an infant. Showeth, Will of T. D., That T. D. the testator in the pleadings of this cause named by bequeathing a jjjg ^j|][ bearing date the day of September , amongst Btock^in trust Other legacies and bequests therein contained gave and bequeathed for the peti- unto W. W. and R. Q. his executors therein named £700 South Sea tioner. Annuities, Upon trust, &c. [stating shortly the will, the proceedings in the cause, and the order made on further directions."] Death of E. T. That the said E. T. departed this life before the said decretal order before the or- of the 7th of February 1787 was pronounced. nourced!""°" ^^^* *^^ s^i'i defendants W. W. and R. Q. did accordingly trans- The stock ^^^ *° *^® ^^^^ Accountant-General of this court the said sum of £700 transferred South Sea Annuities, and did also pay unto the said Bank with the into the Ac- privity of the said Accountant-General the sum of £ , being the General's' dividends which had accrued thereon since the death of the said name, and the E. T. to the time of the said transfer, and which said principal sum dividends ac- and the dividends accrued due thereon are now remaining in the '^a°d'^int^'^th° ^^^^ ^'*^ ^^^ privity of the said Accountant-General, and placed Bank to the to the Credit of this cause to the account of your petitioner, petitioners ac- That your petitioner is the only child of the said E. T. deceased, count. and is now of the age of , and entitled to the dividends of the ^'t*tF d'f°th'^ said £700 South Sea Annuities for his maintenance and education dividends of during his minority, and to the said principal money on his attaining r *503 1 *''^® ^S® °^ twenty one years, under the will of the said testator T. D. the stock for ^^'^^ Jour petitioner is destitute of all support, and has no person his mainten- to clothe educate and maintain him, the said defendants W. T. and ance during R. Q. as executors of the said testator having no fund or property ^'dT "th^'*^ in their hands so to do, and having already advanced and paid or principal on engaged to advance and pay several sums of money for the neces- sary support of your petitioner. PETITIONS BY INFANTS. 503 That the said plaintiff J. D. is the uncle and only relation of your hia attaiaing^ petitioner, and is willing and desirous of becoming your petitioner's twenty-one. guardian, and to take care of your petitioner. The petitioner Your petitioner therefore humbly prays your honor support, that the said plaintiff J. D. may be appointed your Theplaintiflf J. petitioner's guardian ; and that he may be paid D. willing to the said sum of £ , paid into the said Bank as become the aforesaid, as the dividends of the said £700 stock ac- guaVman!^ crued due between the death of the said E. T. and the prayer. time of transferring the same into the name of the Ac- countant-General, and also the dividends which have accrued due since the said transfer, and which may accrue due on the said £700 South Sea Annuities dur- ing the minority of your petitioner, for the purpose of enabling the said J. D. to clothe educate and maintain your petitioner. And your petitioner shall ever pray, &c. *II. Petition hy an infant who had married, all his guardians ap- pointed under the will of his father having died, except one who refused to act ; praying for a reference to a Master to appoint another guardian, and to consider as to the propriety of a part of the principal of the infant' s fortune being applied for the purpose of establishing him in business, and also as to the proportion of the income of his fortune to be allowed him during his minority. The will contained a clause authorizing the trustees and guardians to apply one-fourth of the principal of the inf anf s fortune for his advancement, under which power a premium had been paid on the infants being apprenticed. In Chancery. la the matter of B. F. an infant. To the Right Honorable the Master of the Bolls. The humble petition of the above-named Infant B. F. of, &c. Showeth, That B. F. late of deceased, the late father of your petitioner, will of the pe- was at the time of his death possessed of or entitled to a consider- titioner's fath- able personal estate, and that he duly made and ^published his last [ *504 ] will and testament in writing bearing date , whereby after giving er, bequeath- some specific and pecuniary legacies, he gave and bequeathed the inghisresidu- residue of his personal estate unto C. J. of, &c. lately deceased, J. estate to°a J., A. of, &c. and J. F. of, &c. also since deceased, in the words and fig- j. a., and J. ures following (that is to say): "And after all my just debts funeral ^''.l".*™^? *° charges and reasonable expenses of carrying this my last will and gye 'parts 'be- 504 PETITIONS BY INFANTS. tween his wi- testament into execution are defrayed, I give and devise in trust unto tmiTn M^ *^® above-named C. J., J. A. and J. P. all my stock in trade money S. E. and the book-debts securities and all othei property and effects whatsoever, that petitioner,' may belong to or be due to me at my decease (except such things or with benefit of money as are specifically devised) for the uses and purposes following betweeuihe C*'^^*' ^^ *° ^^7') '^^^^ ^^^7 *'^^ ^^^^ devisees do, as soon after my de- children, cease as may be prudently possible, dispose of all my said effects to the best advantage, and invest the moneys arising therefrom in the most eligible government securities, the whole to be divided into five equal fifth parts between my wife A. and my daughters M., S. and E. and my son B. ; and if either or any of them die before attaining the age of twenty one-years or without having lawful issue, the re- spective share or shares of each to be equally divided among the sur- vivors, in the same manner as the original sums are limited, the said shares to be paid or transferred within nine months after my death to such of my said children as may be of the agg of twenty- one years, and to the others as they severally attain that age ; and I ,do will and direct that if I should die before my daughter E. attains the age of twenty- one years, that my said devisees would pay such a portion of the interest arising from her share as may be proper for her maintenance and instruction, and the surplus to be added from time to time to the principal, and paid to her on her coming of age, The interest of or divided as above in case of her decease ; and I will and direct that the widow's the interest and profit of the said fifth or greater share or part of °?^j^^!\*° ^^ the amount of my effects as before devised for the benefit of my wife paid to her « , • i % p • ■ i -in during her life, Ann, be paid to her from time to time as the same becomes due tor and the first and during the term of her natural life, and that likewise the first M ™°t*t'^^'b ®^^ months' interest, &c. that becomes due after her decease shall be comedueafter subject to the payment of her funeral and other necessary charges her death to or her testamentary disposal, and after that j)eriod the principal sum be subject to ^q ^jg divided (subject to the above regulations) between my son ^d th^^°^^ ' '^' ^^^ ™y other four children or their lawful issue in five equal cipal to be'di- shares, one share only to the representatives of each ; and I will Tided between and direct that my said trustees do allot and pay out of the portion the testator's devised as above to my said son B. such an annual sum during his" son J. and his i i: x.- -^ iji- i- other four nonage as may be proper tor his maintenance and education and in- children. struction in such business or calling as may be expedient ; and that Direction to the Surplus and remainder of such yearly interest as may be left the trustees to after such allotment, be paid from time to time as it becomes due, to tte int^rest°of ™y ^'^^^ ^- ^^^ ^^^ °'^^ "^® ^^^ behoof until the said B. attains the the petition- age of twenty-one years, but if his mother dies before that time, then er's share for guch Surplus to be added to his own principal sum ; and I do hereby anc™and™he '^^^^ ^"^^ direct and empower my said devisees, that if at any time surplus to be previous to my said son B. attaining the age of twenty-one years, paid to the any opportunity offers, that upon good grounds should promise to [ *505 J *be particularly beneficial towards establishing him in life, to advance widow during any Sum not exceeding the fourth part of what he may at the time be his minority, entitled to by this my will to answer such purpose, and they are her^eath to ^lereby indemnified and exonerated from all demands on account of be laid out to Such advances, from any person or persons claiming any benefit by accumulate, this my will ; provided always that my said son and his guardians PANTS. 505 agree to approve of such advance." And the said testator appointed Power to the the before-named C. J., J. A., and J. F. executors of the said will, t™stees to ap- and the said persons together with his said wife Ann guardians of n/,h^!rfw'f ' sucn 01 nis children as might be under age at the time of his decease, paiofthepeti- As by the probate of the said will when produced to this honorable tioner's share court will appear. ^°o''«fo'f^estab That the said testator B. F. departed this life on , and with- lishing him in out having revoked or altered his said will, leaving A. F. his widow life. since deceased, and J. F., M .F., S. F. and B. F. and your petitioner C J., J. A., all named in his said will, his only children, who have all excepting ^°? f'/' ^P' .... , • . , • "^T 1 • o r & pointed exe- your petitioner long since attained their ages oi twenty-one years, cutors ■ and and also leaving the said C. J., J. A., and J. F. him surviving. together with That shortly after the said testator's death, the said C. J. and J. F. ' ^^ar'd'ianr'of duly proved the said testator's said will in the proper Ecclesiastical fh^Lfant '^ Court, and thereby became his legal personal representatives, but children: that the said J. A. declined to prove the said will or to act as one of Death of the the guardians of your petitioner, or in any manner to execute the testator; trusts of the said testator's will. ^'^ of'a''''e'ex- That the said testator's daughter M. F. is still unmarried, and that cept the^ti^ the said S. F. intermarried with and became the wife of W. W. N., tioner. and that she died on or about , and the said E. F. on or about That c. J. and intermarried with and is now the wife of J. E. S. of, &c. ^' ^- P^^^d That the said testator's widow after his death intermarried with but that J. A. J. 0. of, &c. and that she died on . declined to That the said 0. J. and J. F. (the executors) got in the said tes- proveortoact tator's personal estate and paid his debts, and that the several shares trustee of the said M. F., S. N., and E. S. of and in the said testator's resi- one daughter duary personal estate to which they were entitled at the said testator's unmarried ; death, have been ascertained and paid to them, and the shares of the Marriage of said J. F., M. F., E. S. and of the issue of the said S. N. deceased Y° u"'^'' of and in the said one-fifth part or share of the said residuary estate and death of bequeathed to the said testator's widow for her life, have also been one of them. ascertained and duly accounted for or paid to them. Marriage of That the said C. J. and J. F. (the executors) have severally de- ^^3*^'^nd' ' parted this life, and that the said J. F. the son obtained letters of ber death. administration of the said testator's effects left unadministered, with That C.J. and his will annexed, to be granted to him out of the proper Ecclesiastical J. F. got in the Court. _ _ ^ _ _ _ teteTd^'aid That under and by virtue of the said testator's will, your petitioner the debts ^ became upon the death of the said testator entitled to one-fifth part thatthe shares or share of the said testator's residuary personal estate, and that to which the uDon the death of your petitioner's mother the said testator's widow, daughters r" . . J r J ,1 -J i i i I -11 ^ were entitled your petitioner became also entitled under the said testator s will to at the testa- *one-fifth of the one-fifth share of the said residuary estate be- r *506 "i queathed for the benefit of the said_ testator's widow, subject as to ^^^,^ ^^g^jj, both of those shares to be divested in case your petitioner should were paid to die before attaining the age of twenty-one years, or without having them ; and the -PI- shares of the lawiul issue. parties enti- That in the month of the sum of iG157 was paid with the tied to the consent of your petitioner and of the said J. F. (the said C. J. being widow's one- then dead) and your petitioner's mother his acting guardians, out of ^^^^ ^^^'^^ ^^- 37 506 PETITIONS BY INFANTS. ly accounted for. Death of the acting execu- tors, and ad- ministration ■with the will annexed granted to J. F. the son. Statement of the shares to which the pe- titioner is en- titled. A premium paid with the petitioner on his being ap- prenticed to an ironmon- ger; The inden- tures since given up and cancelled. The amount of the shares to which the pe- titioner is en- titled ; His marriage and desire to commence business; And proposal to hare the residue of the one-fourth of his fortune applied for es- tablishinghim in life ; and the whole in- come of his fortune allow- ed for his maintenance until he at- tains twenty- one. [ *507 ] That all his guardians having died except J. A. who refuses to act, another guardian ought to he appointed. Prayer. your petitioner's said one-fifth share of the said residuary estate as a premium for apprenticing your petitioner to a Mr. R. an ironmonger and the expenses attending thereon, and that at your petitioner's earnest request the said Mr. R. has given up the said indentures, and allowed them to be cancelled. That your petitioner's shares in the said testator's residuary per- sonal estate to which he became entitled both at the death of the said testator and at the death of the said testator's widow, now con- sist of the sum of X1800 new 4 per cent, annuities, standing in the name of the said J. F. in the books of the Governor and Company of the Bank of England, and of the sum of <£ cash in the hands of the said J. P. That your petitioner on or about intermarried with S. S., and that your petitioner is desirous of commencing the business of in order to support himself in life. That for that purpose your petitioner submits that he ought to be permitted to have the residue of the one-fourth part of the fortune to which your petitioner is now entitled under the said testator's will, after deducting the sum so advanced for apprenticing your petitioner as aforesaid, inasmuch as the said testator by his said will authorized the said executors and guardians appointed by his said will to advance one-fourth of your petitioner's fortune for establishing him in life, and your petitioner submits that he ought to be allowed the whole of the income arising from his said fortune for his maintenance, until your petitioner shall attain his age of twenty-one years. That all the said guardians of your petitioner appointed by the said testator's will having died except the said J. A. who has ever since the said testator's death refused to act in anymanner under the said will, your petitioner submits that a guardian ought to be ap- pointed, with directions to pay to your petitioner the whole of the income of your petitioner's fortune for his maintenance and support. Your petitioner therefore most humbly prays your honor that it may be referred to one of the Masters of this honorable court to approve of a proper person to be appointed the guardian of your petitioner ; and that it may also be referred to the said Master to in- quire and state to the court whether it will be fit and proper that any and what part of the principal of your petitioner's fortune should be applied for es- tablishing him in. life ; and also to approve of a proper sum to be allowed for the maintenance of your pe- *titioner out of his said fortune during his minority, and to state from what time the same ought to be allowed ; and that all necessary directions may be given for eifectuating the purposes aforesaid, or that your honor may be pleased to make such further or other order as to your honor shall seem meet. And your petitioner shall ever pray, &c. PETITIONS BY INFANTS. 507 ^III- Petition hy an infant, praying that the Master's report made pursuant to an order upon a former petition hy the infant{l) may be confirmed, approving of a guardian for the infant, allowing a sum to he raised for establishing the infant in business, and the whole interest of his fortune for his maintenance, from the death of his mother ; the petition also prays for a reference to the Mas- ter to tax the costs of the petitioner, and all other persons concerned, and to have the same raised and paid. In Chancery. In the matter of B. F. an Infant. To the Right Honorable the Master of the Rolls. The humble Petition of the above-named Infant B. F. of, &c. Showeth, That by an order of this court made in this matter on the peti- statement of tion of the above-named infant bearing date on or about , It was *<* onlei' ordered that it should be referred to the Master in rotation Gr. D. ™^^?e upon the -n\ , J. . 1 ■ 1 petition or the Jisq. to approve ot a proper person or persons to be appointed guar- infant. dian or guardians of the said petitioner during his minority or until Referring it to the further order of the court, and all proper parties werfi to have the Master to notice to attend the said Master thereon, and were to be at liberty ^^^J°J^ °!'^ to propose such guardian or guardians ; and it was ordered that the f" * / !)' • said Master should state to the court the said petitioner's age and fant's age, for- the nature and amount of his fortune, and what relations he had, and tune, and re- on what evidence or ground the said Master approved of any parti- '^tions, cular person or persons to be such guardian or guardians, and also ^"'^„^'!f to inquire and state to the court who had maintained and educated Master's ap- the said petitioner since the death of his mother, and what had been provai of a properly expended or ought to be allowed on that account ; and the g»^'' ^^ ^^^ produced upon the said reference, and he approved of tablisMnghim *^® ^^^^ proposal, and On the grounds and evidences therein stated in business, he was of opinion that J. F. therein mentioned is a proper person to Statement of be appointed guardian of the petitioner B. F. the infant during his the Master's minority, or until the further order of the court ; and he found that repor , ^-^^ ^^j j infant is now in the nineteenth year of his age, and that the J.^F^rguar- nature and amount of his fortune and what relations he has are such dianofthein- as particularly stated in the said state of facts thereinbefore stated, fiiit; his fortune consisting at the death of his mother and at the present also stating time of ,£1800 new 4 per cent, annuities standing in the name of the infant^ ° * * Said J. F. ; and he found that the said infant hath since the death and the °^ ^^^ mother (which happened on ) been maintained and sup- mount of his ported by the said J. F., who he found had expended the amount of fortune; all the interest and dividends of the said ^61800 bank annuities in that siiree the gygjj maintenance and support ; and he was of opinion regard being mother he had ^^"^ ''° ^^^ direction in the will of the said infant's father deceased been main- for advancing part of the said infant's capital, that it will be fit and tainedbyJ.F. proper that the sum of £200 part of the said B. F. the infant's for- nlied the in- *'^^® should be applied for establishing him in the business of , terest of his and that the said sum of £200 should be raised by sale of a sufficient fortune for part of the Said £1800 new £4 per cent, annuities, and he was of that purpose ; Qpinion ^jjat it would be fit and proper that the whole of the said that It would iuQQujg arising from the said sum of £1800 new 4 per cent, annui- be proper that . _ «3 _, .,.„, .ip iiii n i £200 should ties, the amount oi the said intant s said fortune, should be allowed be applied for to the Said J. F. for the maintenance of the said infant for the time establishing pg^g^.^ ^^^ ^]^^^ ^jjg game should commence from the said the ness to be ^^y of the death of the said infant's mother, and he was of opinion raised by sale that the dividends and interest of the residue of the said sum of of part of a £1800 new £4 per cent, annuities as shall remain after the sale of fi, ^. tj, ' so much thereof as would be sufficient to raise the sum of 200Z. to whole income ^^ applied for the purposes herein and thereinbefore mentioned, of the infant's ought to be allowed to the said J. F. for the maintenance of the said fortune should infant for the time to come, and that the same should be paid to j^jf f°7the ° ^^^ ^^^^ "^^ ^- ^^ ^^^ when such dividends shall become due and be infant's main- received. tenance since Tour petitioner therefore most humbly prays your h'?3 mother °^ '^°°°'' ^^^^ *^^ ^^^^ Master's report may be absolutely and also for confirmed, and that the said J. F. may be appointed the time to guardian of the person and estate of your petitioner ; '^'"^^- and that the sum of £200 part of your petitioner's ^''^y®^" *fortune may be applied for establishing him in the busi- [ *^^^ ] ness of , and that the said J. F. may be directed to raise the said sum of 200Z. by sale of a sufficient part of the said sum of 1800Z. new il. per cent, annui- ties ; and to apply the same sum of 200Z. for your pe- titioner in manner aforesaid ; and that the whole of the income which has arisen since the death of your peti- tioner's mother from the said sum of 1800Z. new 41. per cent, annuities, the amount of your petitioner's said fortune, may be allowed to the said J. F. for the PETITIONS BY INFANTS. 509 maintenance of your petitioner for the time past, and that the same may commence from the said the the day of the death of your petitioner's mother ; and that it may be referred back to the said Master to tax as between solicitor and client the costs charges and ex- penses of your petitioner and of J. F., M. F., and E. S. of and relating to your petitioner's former application and of the said reference and incidental thereto, and of this application and of the order to be made thereon and incidental thereto ; and that the costs of your peti- tioner when taxed may be paid to Mr. your peti- tioner's solicitor, and of the said J. F., M. F., and E. S. to Mr. their solicitor, out of the said 1800Z. new 4Z. per cent, bank annuities, and that the same may be raised by sale of a sufiBcient part of the said 18001 new 41. per cent, annuities, and that the divi- dends and interest of the residue of the said sum of 1800Z. new 4Z. per cent, annuities as shall remain after the sale of so much thereof as will be sufiBcient to raise the said sum of 200^. for the purposes aforesaid and also the amount of the said costs and expenses, may be allowed to the said J. F. and applied by him for the maintenance of your petitioner for the time to come, and that the same may be paid to the said J. F. as and when such dividends shall become due and be received, or that your honor will be pleased to make such further or other order as to your honor shall seem meet. And your petitioner shall ever pray, &c. *IY. Prayer of a 'petition hy the guardian of infants for an increase of the sum allowed for their maintenance and education. That your petitioner humbly conceives the sums already allowed introductory for the respective maintenance and education of the said plaintiffs statement. to be inadequate to those purposes, regard being had to their fortunes and circumstances; *Your petitioner therefore humbly prays your honor [ *510 ] that it may be referred to the said Master to consider Prayer. what is proper to be further allowed in addition to what is already allowed for the maintenance and edu- cation of the said plaintiffs the infants, regard being had to their fortunes and circumstances. And your petitioner shall ever pray, &c. 510 PETITIONS FOK TRANSFERS OF STOCK. V. Petition fraying to have certain shares of stock transferred to three of the petitioners, they having attained their respective ages of twenty-one years, and that the share of another petitioner who had attained twenty-one and had married, may he transferred to her husband, together with the dividends to accrue due previously to such transfers; also that the father of the other petitioners, in- fants, may he allowed the dividends to become due on their shares, he being unable to maintain them. [An opinion as to the necessary affidavits is added.) In Chancery. Will of J. D. A codicil made hereto. Death of the testator. His will and codicil proved by all the exe- cutors. [*511J The residuary personal es- tate, exclusive of the testa- tor's share in a partnership trade, invested by the execu- tors in the funds in their Between W. W. the elder and M. his wife since deceased, Z. G. lately deceased and M. his wife, R. W. now R. and J. W. E. W., &c. &c. infants, by the said W. W. the elder their father and next friend, Plaintiffs, and W. H. since deceased, J. D. W. and W. J. . . . Defendants. To the Right Honorable the Master of the Rolls. The humble Petition of W. W. the elder, &c. &c. above named, Showeth, That J. D. late of duly made and published his last will and testament in writing bearing date on or about the day of whereby after giving, &c. That the said testator after the making of his said will duly made and published a codicil thereto bearing date , and thereby gave certain pecuniary legacies therein mentioned, but did not by such codicil any otherwise revoke or alter his said will. That the said testator departed this life in without having revoked or altered his said will except as before mentioned, and soon after his death the said executors T. D. S. 0. and the said defendant W. H. duly proved such will and codicil in the Prerogative Court of the Archbishop of C, and took upon themselves the execution thereof. *That in pursuance of the directions of the said will the said exe- cutors laid out and invested the clear residue or surplus of the said testator's personal estate exclusive of his said share in such co-part- nership as aforesaid, in the purchase of £ 3 per cent, bank annuities, which sum was transferred into their own names in the books of the Governor and Company of the Bank of England, and the interest or dividends arising therefrom were from time to time duly paid according to the directions of the said will to the said M. W. That the capital of the said testator which was at the time of his PETITIONS FOR TRANSFERS OF STOCK. 511 death employed in the said partnership business continued to remain own names, and be employed in such business, and the same was carried on for ^'^^ *e divi- the joint benefit of the said D. D. the surviving partner and the per- pa"d "o'jl'w. sons interested under the said mill, from the time of the said testa- during her life! tor's death until the death of the said D. D. That the capi- That the said D. D. departed this life sometime in , and the tai employed said partnership connexion being thereby determined, the said T. D. I'/ t*Ve' was"' S. 0. and the said defendant W. H. as executors and trustees under permitted to the said will, soon afterwards received the amount of the said testa- remain uLtii tor's share of the capital employed in the said partnership business, *jj^ ^arl^^i^ and they therefore laid out and invested the same in the purchase of partner^h'^^ the sum of £ 3 per cent, bank annuities, which with the former death; thetes- sum of 1, like annuities arising from the other residuary estate 'f*°'''^ ^^^^^^ of the said testator, made together with the sum of 1. 3 per cent, certain^d" a'nd bank annuities: and soon afterwards the said S. 0. departed this invested in the life. fiinds; That the said T. D. and W. H. after the death of the said S. 0. e^g'„tf,°°^ °^ their co-executor, in breach of their trust sold out and transferred t^!''" °!^L'„.„ , V ... t* n f* 1 • t /i/i n 1 intj faurvivors the stock or sum ot £ part of the said sum of £ for the pur- sold out part pose of employing the produce in carrying on the trade or business of tlie trust of salt merchants in a partnership which had been asrreed upon be- stock and ap- . , , 1 Tr m T & 1 plied the same tween them and one K. T. L. {n their trade; That the said T. D. departed this life some time in and the death of ano- said T. D. and W. H. did not in the life-time of the said T. D. re- ther executor ; place the said £ trust bank annuities or any part thereof, but tbe survivor the said W. H. continued to employ the same for some time after ^w!^^"^g '^^' the death of the said T. D., and the said W. H. then replaced the sfbck sold^out. said sum of £ 3 per cent, bank annuities, and procured the same together with the residue of the said £ like annuities to be trans- ferred into his own name in the books of the Governor and Com- pany of the Bank of England. That your petitioners M. Gr., R. R., J. W., B. W. &c. &c. being Bill filed by with your petitioner J. D. W. then and now the only children of the the petitioners said testator's said daughter M. W., did with your petitioner W. W. gfrvi'vin^^'exe- the elder and the said M. W. their mother on or about exhibit cutor and their bill of complaint in this honorable court against the said W. H. others ; and your petitioner J. D. W. and W. J. who are the personal repre- sentatives of the said T. D. deceased, stating to the effect aforesaid, and praying, &c. That by an order made in this cause bearing date on or about order made it was ordered with the consent of the said defendants, that the said directing the defendant W. H. should transfer the said sum of ^ 3 per cent, transfer of the *Bank Annuities standing in his name as aforesaid into the name and L ^-'^^ J with the privity of the Accountant-General of this court in trust in trust fund into this cause, and the said Accountant-General was to declare the trust an^-Generai's thereof accordingly ; and it was further ordered that the interest which name, and the should accrue on the said bank annuities when so transferred should dividends from time to time as the same should become due be paid to the said ' id^to M w M. W. the daughter of the said testator for her separate use during during her her life, or until the further order of this court ; and for that purpose life ; the said Accountant-General was to draw on the bank according to 512 PETITIONS FOR TBANSFERS OF STOCK. no decree the form prescribed by the act of parliament and the general rules "^"^^ ! and order of this court in that case made and provided. death of M.w. rpj^g^^ ^^ decree hath yet been made in the said suit, and that the said M. W. the daughter of the said testator departed this life on or about , having in pursuance of the aforesaid order received the interest and dividends of the said sum of 1. until the time of her death. Three of the That your petitioners M. Gr., R. R., &c. having respectively at- petitioners tained their ages of twenty-one years are, as they are advised, enti- ertwfntj'^one ^^^^ ^^^^ t° One-tenth share of the said sum of ~^l 3 per cent, are entitled to bank annuities without prejudice to their interests in the said suit ; one-tenth and your petitioners J. W., B. W., &c. the only other^children of the share each; g^^jj ^ t^ ^^j^g ^^jj^ infants, your petitioner W. "W. the elder is en- the otiferpeti- *^*'®^ *° ^^''^ *^^ interest and dividends of their respective tenth tioners enti- shares of the Said sum of 1, stock paid to your said petitioner tied to have for their respective maintenance and education, until they shall seve- of\hi^r'thare ^^^^^ ***^'° *^^^^ ^S^s of twenty-one years. paid to him That your petitioner M. G. attained her age of twenty-one years for their main- on , and hath survived her late husband the said plain tiif Z. Gr. tenance. rphat your petitioner R. R. attained her age of twenty-one years E.'^R^d''*'''"^'^ on , a short time previously to which she intermarried with that her share your petitioner E. R. and that no settlement of the share and in- should be terest of your petitioner R. R. in the said sum of stock hath been transferred to made ; and your petitioner R. R. is desirous that her said one-tenth share of the said sum of stock may be transferred to your petitioner E. R. That your petitioner J. D. W. attained his age of twenty-one years on or about . Prayer. Your petitioners therefore humbly pray your honor that the sum of 1., being one-tenth part or share of the said sum of 1. 3 per cent. Bank Annuities, may be transferred to your petitioner M. Gr., and that the like sum of 1, may be transferred to your petitioner B. R., and that the like sum of 1, may be transferred to your petitioner J. D. W. ; and that your said petitioners may be paid one-tenth part or share of the dividends which shall accrue due on the said stock previously to .such transfers. And that your petitioner W. W. the elder may from time to time be paid the dividends of the said remaining shares of the said sum of stock so long as your other petitioners respectively shall continue infants, to be by him ap- L ol3 J plied *f or their several maintenance and education; or that your petitioners may have such further and other relief as the nature of the case may appear to require and to your honor shall seem meet. And your petitioners shall ever pray, &c. Opinion. — There must be afl5davits of the petitioners M. G. &c. being the only children of M. W., of the three petitioners M. G., R. R., and J. D. W. having attained their ages of twenty-one, of the PETITIONS FOR TRANSFERS OF STOCK. 513 death of the said M. W., of the death of the said Z. Gr., and of the marriage of R. E,., and that the petitioner W. W. the elder is not of ability to maintain the children ; R. R. must be present in court and pray that the stock may he transferred to her husband. The suit is abated, and there may be doubts made about the petition, but being for the payment of money it may be hazarded. The defendants must be served with the petition. **VI. Petitionprayingatransferandpayment of certain sums wMcli [ *514 ] had been carried over to the separate account of a married woman, and also of all further sums to become payable to her ; she and her husband being resident abroad, a commission is prayed to take her consent to the prayer of the petition. The wife being entitled under the will of her father to one seventh share of the produce of certain estates sold under the decree of the court, her husband as- signed the same to W. T. upon trusts to pay a debt of ^63000 ; W. T, afterwards assigned over the debt and security to the petitioner R. 0. for securing a larger debt due from himself, and subse- quently became bankrupt ; upon a reference to arbitration directed by the court, the arbitrator declared R. 0. to be a mortgagee, and that he should be considered the purchaser of the security assigned to him at the sum fixed by the award to be the value thereof, for the purpose of ascertaining the amount of debt in respect of which he was to tender his proof under the commission of bankrupt against W. T. In Chancery. Between T. D. the elder since deceased, T. D. the younger \stating all the names'] . . . Plaintiffs, and J. P. and L. his wife, l_also stating all the names] . . Defendants, And between the said T. L. and L. his wife. Plaintiffs, and The said T. D. and others, Defendants. By original and amended bills and bill of revivor. To the Right Honorable the Master of the Rolls. The humble Petition of R. 0. of and the said defendants J. P. and L. his wife, Showeth, That N. C. deceased, the testator in the pleadings of this cause 514 PETITIONS FOR TRANSFERS OF STOCK. Will of N. C. named, in and by his last will and testament bearing date the deYising all ^^j ^f March , after directing the payment of all his debts, his wife^A.^G. S^"^^ ^^^ devised unto his wife A. C. all and every his freehold for life, and copyhold and leasehold messuages or tenements lands and heredita- after her ments with their appurtenances, situate in the parishes therein men- ^ame^to bl tioned or elsewhere, whereof he was seised possessed of or entitled sold, and the unto. To hold the same unto his said wife A. C. for her life ; and produce divi- from and after her decease, he directed that the same premises his^ e™°°^^' should be sold, and the net moneys arising by the sale thereof daughters. should be equally divided and paid to between and amongst his r *515 ] *seven daughters, E., A., S., M., J., L., and D., share and share alike. Death of the That the Said testator died soon after making and publishing his testator with- gaid yf[l\ lyithout revoking or altering; the same, leaving his said seven out revoking j i,t v • • his will. daughters him surviving. Marriage of ^^** ^^^ ^^^^ ■^' ^- intermarried with your petitioner the said de- one daughter fendant J. P., who became in right of his said wife the said defendant L. c. with the L. J. seised and possessed of or otherwise well entitled in reversion wl!n hfoo^'^' ^' expectant upon the death of the said A. C, unto a seventh part or wno Decarae ,^ oi-i r» ^ • t -kt r^ p t • in her right Share 01 the Said estates of the said JN. U. or ot the moneys to arise entitled to her from the sale thereof. share'''™* ^^^* *^^ ^^^^ ^- ^- ^^^ ^^^^ testator's widow died on or about the Death of the ^ °^, T ■''?■'""'"■ ■, , , • ,- , ■ , • j testators wi- ihat by the decree made on the hearing ot this cause bearing date dow. the of 1813, it was declared that the will of the said tes- Decree made, tator was well proved, and that the same ought to be established and ec aring the ^^le trusts thereof performed and carried into execution.- And it was will well , , i.\Tii 1 '1 » iiT proved, (amongst other things) ordered, that the said testator s estates should and directing be sold with the approbation of S. C. C. esq. one of the Masters of the estates to this court with the usual directions. And that the several purchasers be sold, should pay their respective purchase-money into court in the name .vL^^ri ^K^' S'lid with the privity of the Accountant-General of the said court in moneys to be ...^ •' ,, , ■tt.t iiii paid into trust in this cause ; and that the said Master should take an account court, and an of the Several incumbrances affecting the said estates, and the prin- takeu of an '''! "^P^^ ^^^ interest due thereon. cumbrances. That by a Subsequent order made in this cause, bearing date The Master to the ■ day of 1813, it was ordered that the said Master be at liberty to should be at liberty to make a separate report respecting the said Ste report re- ™cumbrances. speoting the That in pursuance of the said decree, thosa parts of the said tes- incumbran- tator's estates which were situate in the counties of E. and M. were ''^^- sold before the said Master, and produced in the whole the sum of Sale of the £30,800; and the other parts of the said estates which were situate tates and the ^^ ^- ^^^ ^^^ county of Y. Were also sold in like manner, and produced sums produ- in the whole the sum of £3150. ced thereby. That by a Certain indenture of assignment bearing date the Assignment gf 1818, and made between your petitioners the said defend- by the peti- ^^^^ '^' -^- ^^^ ^" ^^^ ^^^^ °^ ^^^ °°^ Tpa,ict, and W. T. of of the tioner J. P. of Other part, after reciting the several matters aforesaid ; and that the share to your petitioner J. P. was then indebted unto the said W. T. in the which he, in g^jjj Qf £3Qoo for moneys lent and advanced by the said W. T. and PETITIONS FOR TRANSFBKS OP STOCK. 515 moneys paid for the use of your petitioner J. P. ; and that for se- right of his curing unto the said W. T. the payment of the said sum of £3000 wife, was en- and interest, your petitioner J. P. had proposed and agreed to pirchase-mo- assign the part or share of your petitioners J. P. and L. his wife or neys and of your petitioner J. P. in her right, of and in the said sums of otherwise un- .£30,300 and £3150 and all other the money arisen and produced f^l]^l^,l ^^m and to arise and be produced from the real and personal estate of the said N. C. deceased, under or by virtue of the said recited will, unto the said W. T. upon the trusts and in the manner thereinafter mentioned, to which proposal the said W. T. had agreed; It is wit- nessed that in pursuance of the said agreement, and for securing *the [ *516 ] payment of the said sum of £3000 with interest for the same, and for the nominal consideration therein mentioned, your petitioner J. P. did grant bargain sell assign transfer and set over unto the said W. T. his executors administrators and assigns. All that the part or share of your petitioners J. P. and L. his wife, or of your petitioner J. P. in her right, of and in the said sums of £30,300 and £3150 and all other the money arisen and produced and to arise and be produced from the real and personal estate of the said N. C. deceased, under or by virtue of his said will or otherwise however, and all interest moneys then due and thenceforth to become due and payable in respect there- of. To hold the same unto the said W. T. his executors administra- tors and assigns, upon the trusts and to and for the intents and pur- poses thereinafter expressed and declared of and concerning the same, (that is to say ;) Upon trust that the said W. T. his executors admin- Upon trust istrators and assigns should out of the said part or shSre moneys and thereof to pay premises when the same should be received pay the cost of preparing security and^^ the said indenture and of executing the trusts thereof, and after pay- of executing ment and satisfaction of all such costs charges and expenses. Upon the trusts, . trust to retain pay and satisfy unto himself the said W. T. his exe- ^^'^ ^Z "^^7.. 1 • • 1 • 1 -I n c\r\nm 1 himself a debt cutors administrators and assigns the said sum of dOOOi. together of£3000with with all interest which should be due thereon at the rate of 6Z. per all interest to cent, per annum to be computed from the day of the date of the ^•'""^ ^°^) said indenture ; and as to the residue and surplus of the said part and the sur- er share moneys and premises thereinbefore mentioned to be thereby plus to be paid assigned, (if any there should be,) In trust for your petitioner J. P. "^^"^ ° his executors administrators and assigns. And for the considerations Power of at- aforesaid, and the better to enable the said W. T.-his executors ad- torney to w. ministrators and assigns to recover and receive the said part share „'i°„'?^"I^ ■1 •in ■ 1 1 • 1 1 1 ^^'^ recover moneys and premises thereinbeiore mentioned and intended to be the moneys thereby assigned, your petitioner J. P. did by the said indenture assigned, and make ordain nominate constitute and appoint the said W. T. his exe- *° institute cutors administrators and assigns his true and lawful attorney and jugg^ and to attorneys jointly and severally irrevocably, in his or their name or apply by peti- names or in the names or name of your petitioners J. P. and L. his ^'^"^ °^ other- wife or either of them, but for the purposes thereinbefore mentioned, ^' ^' to ask demand sue for recover and receive of and from the Account- ant-General of this honorable court and of and from all and every other person or persons liable or entrusted to pay the same, the said part or share moneys and premises, and to use and take all legal and equitable means for the recovery and receipt thereof; and upon re- 516 PETITIONS FOR TRANSFERS OP STOCK. Assignment made to W. D. by W. T. of the debt of 30002. due to him. [ *517 J Upon trust for securing a debt of 25002. due from W. T. to W. D. with interest; And assign- ment to W.D. of the share and moneys comprised in the above sta- ted security executed to W. T. ceipt thereof or any part thereof, to make and sign receipts and ac- quittances or other sufiScient discharges, and to do all other acts necessary or expedient in the premises as fully as your petitioner T. P. could have done ; and also that it should and might be lawful to and for the said W. T. his executors administrators and assigns to apply by motion petition or otherwise to this honorable court, for the purpose of enabling him or them to obtain an order for payment of the said part or share moneys and premises, and for carrying the said indenture into execution. That by a certain indenture of assignment bearing date the day of 1819, and made between the said W. T. of the one part, *and W. D. of of the other part, reciting the hereinbefore stated indenture, and that the said W. T. was indebted unto the said W. D. in the sum of 2500Z. ; and for securing the payment thereof with interest had agreed to assign the said debt of 3000Z. unto the said W. D. upon the trusts and in manner thereinafter mentioned ; It is by the now stating indenture witnessed that for the consideration therein mentioned, the said W. T. did grant bargain sell assign transfer and set over unto the said W. D. his executors administrators and assigns. All that the said debt or sum of 3000Z. and all interest then due or thereafter to become due thereon, and all benefit and ad- vantage thereof, and all sum and sums of money to become due and payable in respect thereof. To hold the same unto the said W. D. his executors administrators and assigns as and for his and their own proper moneys.estate and effects, Upon the trusts nevertheless, and to and for the intents and purposes thereinafter expressed and de- clared of and concerning the same (that is to say) : Upon trust by and out of the said debt or sum of 3000?. when the same should be received, to pay the costs of preparing the said indenture and of exe- cuting the trusts thereof, and after payment and satisfaction thereof, Upon trusts thereout in the next place to retain pay and satisfy unto the said W. D, his executors administrators and assigns the said sum of 2500Z. and all interest to become due in respect thereof, and as to the residue (if any) of the said debt or sum of 3000Z. which should not be paid or applied in the manner and for the purposes therein- before mentioned, In trust for the said W. D. his executors adminis- trators or assigns : And it is by the said indenture of assignment further witnessed that for the considerations therein aforesaid, the said W. T. did grant bargain sell assign transfer and set over unto the said W. D. his executors administrators and assigns. All that the part or share of your petitioners J. P. and L. his wife or of your petitioner J. P. in her right of and in the said sums of 30,300?., and 3150?., and all other the money arisen and produced and to arise and be produced from the real and personal estate of the said N. C. de- ceased, under or by virtue of the said will of the said N. C. deceased, or otherwise howsoever, and all interest moneys then due and thence- forth to grow due and payable for the said part share moneys and pre- mises, and all benefit and advantage thereof, To hold the same unto the said W. D. his executors administrators and assigns upon Ihe trusts and to and for the intents and purposes and under and subject to the powers provisoes declarations and agreements expressed and PETITIONS FOB TRANSFERS OF STOCK. 617 declared of and concerning the same in and by the said thereinbefore recited indenture. That by a certain indenture of assignment indorsed on the said indenture of last stated indenture, and bearing date the day of 1821, assignment by and made between the said W. D. of the first part, the said W. T. indorsement, of the second part, and your petitioner R. 0. of the third part, re- Reciting that citing (amongst other things), that the said debt or sum of 2500Z. the debt of so as aforesaid due and owing from the said W. T. to the said W. D. ll°l^'^^\ ^. had been fully paid off and discharged in the manner therein ex- ^ d th t w ' pressed; and further reciting that the said W. T. was at that time t. wasindebt- indebted to your petitioner R. 0. in a considerable sum of money, ed to the peti- *and by way of additional security for the same was desirous that the *i°°^'' ^- 0- ; said debt of £3000 so due to him from the said J. P. and all securities [ *518 ] for the same should be assigned unto your said petitioner R. 0., and had requested the said W. D. to join with him for that purpose, It is w. D. and w. witnessed that for the nominal considerations therein mentioned, the T. assign the said W. D. at the request and by the direction of the said W. T. did ^^^'auf^""" bargain sell assign transfer and set over, and the said "VV. T. did grant te°rest due' bargain sell assign transfer and set over ratify and confirm unto your thereon to R. petitioner R. 0. his executors administrators and assigns, All that the ^- absolutely; said debt or sum of £3000 so due and owing from your petitioner J. P. to the said W. T. as aforesaid, and all interest then due or thereafter to become due thereon, and all benefit and advantage thereof, and all sum and sums of money to become due and payable in respect thereof. To hold the same unto your petitioner R. 0. his executors administra- tors and assigns from thenceforth as and for his and their own proper moneys estate and effects, in reduction so far as the same would ex- tend of the much larger debt due and owing from the said W. T. to your petitioner R. 0. : And it is by the said indenture of assignment And assign- further witnessed, that for the considerations therein aforesaid, the mentbyW.D. said W. D. did bargain sell assign transfer and set over, and the said ^^^g^are and W. T. did bargain sell assign transfer and set over ratify and confirm moneys com- unto your petitioner R. 0. his executors administrators and assigns, prised in the All that the aforesaid part or share of your petitioner J. P. and L. first stated 1 • -^ r J.K- T T. • 1. • Ui r J • i-i. -J deed,uponthe his wiie or oi your petitioner J. P. in her right oi and in the said trusts thereby sums of £30,800 and £3150 and all other the money arisen and pro- declared. duced and to arise and be produced from the real and personal estate of the said N. C. deceased under or by virtue of his said will or otherwise howsoever, and all interest moneys then due or thereafter to become due thereon and all benefit and advantage thereof. To hold the same unto your petitioner R. 0. his executors administrators and assigns upon the trusts and to and for the intents and purposes ex- pressed and declared of and concerning the same in and by the said indenture of the — ■- — day of 1818. That by an order made in the said two causes by his honor the Order made, Master of the Rolls bearing date the day of 1822, It was directing one- ordered that one-seventh part of the money to arise by sale of the l^^^^^^ g°ums sum of £458 Bank Annuities, and of the sum of £117 cash, together of money and with the sum of £700 part of the sum of the £7370 Bank Annuities stock to be in the said order respectively mentioned, should be carried over In t^eTeprrX*" trust in the first-mentioned cause to an account to be entitled "The account of the 518 PETITIONS FOR TRANSFERS OF STOCK. petitioner L. defendant L. P.'s account," and the Accountant-General of this P. in the first court was to declare the trust thereof accordingly, subject to the canse. ^ further order' of this court. The same duly ^'''^*' i^ pursuance of the said order the said sum of £700, 3 per carried over. Cent. Bank Annuities and the sum of £90 cash were carried over by the said Accountant-General to an account entitled " The defendant L. P.'s account," and the same are now standing to the credit of the said account. A further snm That there is now standing in the name of the Accountant-Ge- of stock stand- neral of this honorable court In trust in the said first-mentioned ing m the cause, the sum of £2288, 3 per cent, consolidated Bank Annuities, General's " **° ^ proportionable part of which your petitioner the said defendant name in the L. P. is now entitled. first cause to a That a commission of bankrupt under the great seal of Great L 'p^i's ent\- Bi'it^.in, bearing date on or about the day of 1822 was tied. awarded and issued against the said W. T. under which he was duly [ *519 1 found and declared a bankrupt, and E. W. M. and J. G. having been A commission chosen assignees of the estate and effects of the said W. T. the usual of bankrupt assignment thereof was made and executed to them by the major part w°t'^ ^^iiiast Qf the commissioners in the said commission named. usual 'assign-** That the said indenture of assignment of the day of ment executed 1821 being considered by your petitioner R. 0. as or in the nature to his assig- of a mortgage security only for the repayment of the debt then due "^^^■. . to him from the said W. T., your petitioner R. 0. did on the sented'bythe' *^^y °f 1823 present his petition to the Lord High Chancellor petitioner R. of Great Britain, thereby praying that such mortgage security might, 0. praying -^^th Other Securities therein mentioned, be sold for the benefit of your that the . *. • -on above-stated petitioner R. 0. _ _ security exe- That by a certain order bearing date the day of 1823 cuted to him made and pronounced by his honor the Vice-Chancellor on the hear- r'iii* b^n "fif ^°S °^ *^^ ^^^^ petition, his honor the Vice-Chancellor was pleased to Order made Order that it should be referred to G. R. esq. barrister at law, to ascer- referring it to tain and determine whether your petitioner R. 0. was a mortgagee a barrister to thereof and of any and what other part of the estate and effects of '^h^th'r^R ^^^ ^^^^ bankrupt in the said petition mentioned, and if the said G. R. was a mort- should find that your petitioner R. 0. was a mortgagee thereof, then gagee, and if that he should Set and fix the value of the different mortgage securi- any and what ties which your petitioner R. 0. might hold, and that your petitioner bankrupt's ^- 0- should become the purchaser thereof at the price so to be fixed estate; and if as aforesaid: And it was further ordered that your petitioner R. 0. a mortgagee, g^ould be at liberty to prove for the difference between the value of value of his ^ ^^^ securities including the sum at which your petitioner R. 0. had securities ; purchased a certain mortgage security from H. C. B. in the said order and that he mentioned, and the sum of 15,1 14Z. which had been found to be due !™°o th^l,,,- to your petitioner R. 0. by the commissioners under the commission pur— •'^ *^ •111 AT" / 7 i»\ chaser at such against the said bankrupt : And it was (amongst other things) further price, with ordered that the said assignees and all proper parties should join in liberty^ to conveying and assuring the said premises unto your petitioner R. 0. difference in or as he should direct. value between That the said G. R. by his award in writing under his hand bear- his securities jjjg ^^^^ ^he day of now last past, did award and declare PETITIONS FOR TRANSFERS OF STOCK, 519 that your petitioner R. 0. was a mortgagee of or had an interest in and the the nature of a mortgage interest in the said security from your peti- f"^""^' ^°^^^ tioners J. P. and L. his wife in the said award called " P.'s security ;" h'im V'the" and the said G. R. did thereby set and fix the value thereof in order commission- that your petitioner R. 0. should or might become the purchaser ^"■'^ ! thereof at the sum of 400?. ; and the said G-. R. did further declare 'o^YnJ^^^^^ that your petitioner R. 0. should become and be taken to be the pur- deed's°a°tiie° chaser thereof at such price as aforesaid, and did thereby further arbitrator order and direct that the said assignees should procure to be done should direct. all and every acts or act necessary for giving effect to the said pur- 'f'^"^ "^^^' chase ; and the said G. R. did by his said award *find that the value Q_\g t" mort- of the several securities in his said award mentioned, and which your gagee, and petitioner R. 0. was to be considered as having purchased, amounted fi^n^g the including the said sum of 400Z. and also a sum of 2Q21. the amount above-°stote^d at which your petitioner R. 0. had become the purchaser of the said security as- H. C. B.'s mortgage, to the sum of 1410Z., which said sum of 1410Z. signed to him. beingdeductedfromthesaidsumof 15,114?. made the sum of 13,703?. [ *520 ] for or in respect of which your petitioner R. 0. was to tender his And declaring proof to the said commissioners, being the sum which the said G. R. '^at he should in and by his said award considered that your petitioner R. 0. was pf,rchaser* entitled to prove. . thereof at That your petitioners J. P. and L. his wife are now residing at the such price, Cape of Good Hope, and they are willing that the said several sums ^""l ^'^^ *'''' of too?. 3 per cent, consolidated Bank Annuities and 90?. cash so as should join in aforesaid carried over to the separate account of your petitioner L. P., all necessary and all other moneys which now are or may be hereafter payable to '"^'^ > her in these causes should be received by and paid to your petitioner ^\^°. "^^^f ■ R. 0. under and by virtue of the indentures of assignment hereinbe- amount of fore stated ; But your petitioners are advised that inasmuch as your debt in respect petitioner L. P. cannot appear in court personally to consent to the of which the transfer and payment of the several sums of money to your petitioner q. was to be R. 0., it is necessary that a commission do issue out of this honorable entitled to court, directed to proper commissioners at the said Cape of Good P™^^ under Hope, to take the consent of your petitioner L. P. to such transfer gio^n^"™™'^' and payment to your petitioner R. 0. That the peti- Your petitioners therefore most humbly pray your tioners J. P. honor that the said several sums of 700?. 3 per cent. ^°^ ^- '^'^ consolidated Bank Annuities and 90?. cash may be J^ngth^Tt^he transferred and paid over to your petitioner R. 0. by aforesaid the Accountant-General of this honorable court ; and sums carried that all further sums of money which now are or °Jpai.a°te ac- may hereafter become due and payable to your peti- count, and all tioner L. P. under and by virtue of the will of the other sums said testator N. C. deceased, may be transferred and ^pj^^liould be paid over to your petitioner R. 0. under and by virtue paid to the of the several assignments aforesaid ; and that a com- petitioner R. mission may issue out of this honorable court di- 0., but being rected to certain commissioners at the Cape of Good abroad it is Hope aforesaid, to take the consent of your peti- necessary that tioner L. P. to the transfer and payment of the said a commission several sums of 700?. 3 per cent, consolidated Bank 'o tekVthr 520 consent of the ■wife to such transfer and payment. Prayer. [ *521 J PETITION BY CREDITORS. Annuities and 90Z. cash to your petitioner R. 0., and for the transfer and payment to your petitioner R. 0. of all other sums of money which may hereafter be- come due and payable to your petitioner L. P. or to your petitioner J. P. in her right, under and by vir- tue of the will of the said testator N. 0. deceased, in these causes ; arid that your petitioners may have *such further relief in the premises as to your honor shall seem meet. And your petitioners shall ever pray, &c. Ifote. — This petition should be supported by an affidavit of the facta relative to the assignments, &c. VII. Petition by creditors for leave to come in and prove their debts before the Master after the time limited by the court had expired, and the Master's report confirmed. {2) An opinion as to the necessary affidavits is added. ■ Between A. T. widow . . Plaintiff, and W. H. &c. . . Defendants. To the Right Honorable the Master of the Rolls. The humble Petition of J. K., C. D., E. F. and G. H., Showeth, That upon the hearing of this cause before your honor on or about . it was amongst other things ordered and decreed that it should be referred, &c. \The usual decree for creditors to come in and prove their debts.'] - That the said Master made his report bearing date , which stands absolutely confirmed, and thereby amongst otherthings certified that, &c. [certifying the amount of the debts which had been proved.] That all the debts so reported due by the said Master together with some other debts which have since been claimed have been fully paid and satisfied, and there now remains in the hands of the Accountant- General of this honorable court the sum of £ being the residue of the said sum of £ directed by the said decree to be applied in payment of the said testator's debts. That at the death of the said testator there was due from him to J. J. of, &c. the sum of £ for board and lodging, and on his acceptances of two bills of exchange, and such debts now remain wholly due and unsatisfied. (2) See Angell v. Haddon, 1 Madd. Rep. 529. PETITIONS FOR A WRIT OF NB EXEAT RESNO. 521 That the said J. J. hath since departed this life having first duly made and published her last will and testament in writing bearing date , and thereby appointed one J. C. since deceased and your petitioner J. K. the executor and executrix thereof, and your peti- tioner J. K. having duly proved the said will of the said J. J. in the proper Ecclesiastical Court is now the legal personal representative of the said J. J. *Tbat at the death of the said testator there was due from him to [ *622 ] your petitioner C D. of, &c. the sum of & , which now remains wholly due and unsatisfied. That at the death of the said testator there was due, &c. \&tating the debts due to other petitioners E. F. and Q-. H.^ That your petitioners having been severally unapprized of the said advertisements published by the Master for the creditors of the said testat-or to come in before him and prove their debts, had no op- portunity to claim the same before the said Master made his report. Your petitioners therefore humbly pray that they may severally be at liberty to come in before the said Master and prove their said debts, and that they may be paid the same out of the said sum of £ now in the hands of the Accountant- Gen«ra] of this court in trust in this cause, your petitioners hereby offering to contribute to the plaintiff their proportions of the expenses of this suit. — \_0r thus: Your petitioners hereby offering to pay the costs of this application and of the proceedings incidental thereto to be taxed by the said Master.] And your petitioners shall ever pray, &c. Opinion. — It will be necessary for the petitioner J. K. to prov-e before the Master the fact of the lodging and boarding of the testa- tor at the house of Mrs. J. by the affidavit of some person who can speak to it, and evidence must also be given as to the non-payment of the two bills of exchange. To support the petition the petitioners must join in an affidavit to the effect of it. VIII. Petition by a married woman for a writ of ne exeat regno to prevent her husband from going abroad until he has settled alimony on Aer,(3) and paid the costs incurred by the petitioner on an ap- peal from the Consistory Court to the High Court of Delegates, a monition having been granted and served to compel payment thereof. That on or about your petitioner intermarried with the said defendant C. S., and that having been treated with great unkindness and cruelty by the said 0. S., she was compelled in the year to f3) The court will not grant the writ of ne exeat regno for interim alimony before a decree in the Ecclesiastical Court, nor even after a decree, pending an appeal from that decree; Street v. Str^t, 1 Turn. & Russ. 322, 3. .38 522 PETITIONS FOR A WRIT OF NB EXEAT REGNO. institute a suit of divorce against himfor cruelty and adultery in the court of the Dean and Chapter of Y. That the said 0. S. appeared to such suit and entered a protest thereto, which protest was afterwards overruled, and the proctor of the said C. S. was assigned to appear absolutely in the month of . [ *523 ] *That the said C. S. appealed from such sentence to the consis- tory Court of Y., and in the month of the judge of that court dismissed the said S. C. therefrom, and your petitioner thereupon appealed from such last-mentioned sentence to the High Court of Delegates. That the said appeal of your petitioner came on to be heard before the High Court of Delegates in the month of , when the said court was pleased to assign the proctor for the said C. S. to appear absolutely, and condemn the said C. S. in costs. That the costs to be paid by the said C. S. in pursuance of the said sentence of the said Court of Delegates have been regularly taxed and settled at the sum of £ , and that a monition hath been granted under the seal of the Court of Delegates to compel the said C. S. to pay the said sum to your petitioner or her proctor, with which monition the said C. S. hath been duly served. That since the said decision of the Court of Delegates your peti- tioner hath been and now is proceeding in the said suit so instituted by her as aforesaid in the court of the Dean and Chapter of Y. for a divorce against the said C. S. for cruelty and adultery, and to obtain an annual sum of £ to be assigned to her for maintenance, but your petitioner hath not yet obtained any sentence for alimony therein, and the said C. S. in order to defeat your petitioner of ali- mony in such suit and. also to aw)id the payment of the costs in which he was condemned in the Court of Delegates as aforesaid, threatens and intends that when ^ and so soon as he shall be excommunicated which will be the next proceeding to enforce his obedience to the said order of the Court of Delegates, he will make over his property to his son and quit the kingdom, and the said C. S. declares that your petitioner shall never have any thing which he can deprive her of. That your petitioner hath by the said her next friend filed her bill in this honorable court on or about against the said C. S., stating the matters aforesaid, and praying, &c. As by the cer- tificate of the six clerk will appear. Your petitioner therefore humbly prays your lord- ship that a writ of ne exeat regno may be awarded against the said C. S., or that your petitioner may have such further and other relief in the premises as the nature of this case may appear to require and to your lordship shall seem meet. And your petitioner shall ever pray, &c. ^PETITIONS i'OR A WKIT Oi' SE EXEAT REGNO. *524 ^'^IX. Part of a petition hy the plaintiffs in a cause, praying for a writ of ne exeat regno against the defendant in respect of a deht{^) arisen on mercantile transactions. That upon a fair and just account to be made up and stated be- tween your petitioners and the said defendant as part-owners of the said ship or vessel and her cargo, and for moneys had and re- ceived by the defendant for such goods and merchandize and the pro- ceeds thereof, the said defendant L. M. is indebted to your petition- ers in the sum of ,£1000 and upwards, for which your petitioners have not received any security or satisfaction. That your petitioners are informed that the said defendant L. M. is soon going abroad to parts beyond the seas as a passenger to set- tle and reside at , and has lately declared his intention so to do as well to your petitioners as to other persons, and is collecting in his debts and effects for that purpose, as by the affidavit annexed appears. That your petitioners on the 1st of December instant filed their bill in this honorable court against the said L. M. stating to the purport and effect hereinbefore set forth, and praying that the said de- fendant might come to a just and fair account with your petitioners touching the matters hereinbefore mentioned, and might pay what shall be justly due to your petitioners for their respective shares of the proceeds of such outward-bound cargo, and that the said defen- dant might be restrained from departing out of the kingdom by his majesty's writ of ne exeat regno ; As by the six clerk's certificate appears. That in case the said defendant goes beyond sea he will not return again, and your petitioners are in great danger of losing the whole of their said debt amounting to the sum of ,£1000 and upwards. Your petitioners therefore humbly pray your lord- ship that his Majesty's writ of ne exeat regno may issue against the said defendant L. M. until answer and fur- ther order, for the purpose of restraining his depar- ture out of the jurisdiction of this honorable court, and that the same may be marked for the sum of ^£1000 or such other sum as to your lordship shall seem meet. And your petitioners shall ever pray, &c. (4) Under what circumstances the court will grant the writ, see note (6), antea, p. 106 ; and in addition to the authorities there referred to, see Boehm y. Wood, 1 Turn. & Russ. 332, 342, 3, 4. *525 **X. Petition by a purchaser (the plaintiff in the third-mentioned suit,) praying [in the alternative) for a reference to the Master to tax the costs incurred by the petitioner in various proceedings and applications made to the court, in consequence of the great delay which had taken place in the investigation of the title and pro- curing the incumbrancers and other parties to execute the convey- ances ; Or for a reference to inquire whether the vendors {who were trustees for sale) had shown a good title or were able to exe- cute a good conveyance of the estates free from incumbrances previously to the petitioner filing his bill or when else ; and that the Master may allow the petitioner a proportionate part of the costs incurred by him ; — Praying also for a reference to the Mas- ter to take an account of the dilapidations on the estates and de- terioration in value of the lands by neglect of management previ- ously to the petitioner taking possession, and that the amount to be allowed for costs, ^c. may be repaid to the petitioner out of his purchase-money which had been paid into court and invested in 3?. per cent, annuities; and that the title deeds deposited with the Master may be delivered out to the petitioner. In Chancery. Between T. T. and others, .... Plaintiffs, and F. M. T. and others, . . . Defendants. And between the said T. T. and others, Plaintiffs, and M. A. T., S. T. S., and C. V. defendants. And between B. R Plaintiff, and The said M.A. T., S. T. S., and C. V. Defendants. To the Right Honorable the Lord High Chancellor of Great Britain. The humble Petition of the above named B. R., Showeth, Statement of That on or about the day of '- 1821, your petitioner en- the agreement tered into a contract or agreement in writing with the above-named h"^t^""'T^ defendants in the third-mentioned cause, whereby the said last-named tioner. persons agreed to sell, and your petitioner agreed to purchase the manor or reputed manor or lordship of N. in the county of Y., &c. in the said agreement particularly mentioned and described with the appurtenances, free from all incumbrances except as in the said agreement and hereinafter particularly mentioned, at or for the price or sum of 1., and it was stipulated and agreed that such pur- chase should be completed by the 6th of October then next ensuing. AND FOR DELIVERY 01? TITLE-DEEDS. *526 *That the abstracts of title delivered by the said defendants to That the ab- your petitioner, and all of which were not delivered until the coTt^atn'^a^rue day of , did not together contain a full and correct abstract of statemeat of the title of the said vendors to the said estates and premises, and ^^^ title "i"! there were several objections to the said title, and the same was dis- [^^^if °^l^^l covered by your petitioner to be in question in a suit in this honora- theretoHhe^ able court, and it appeared by the said abstracts delivered that the title discover- incumbrances on the said estate were so numerous and great as to «d to be iniiti- exceed the amount of the said purchase-money agreed to be given the'incum- "J your petitioner for the same by several thousand pounds ; and brances ex- that therefore the said vendors were, as your petitioner was advised, needed the wholly unable to execute a good and sufficient conveyance of the pur°haL-mo! said estates and premises, which your petitioner according to the said ney, and that contract was entitled to have. the vendors That in consequence of no sufficient abstracts of title ever having ^x?cu"eagood been delivered, and of the defects of the said title and the disputes conveyance. thereof, and of the inability of the said vendors to execute a good Bill filed by and sufficient conveyance of the said manor and other hereditaments the petitioner to your petitioner, your petitioner in or as of Hilary Term 1822, yfndMs^de- filed his bill in this honoruble court against the said vendors, defen- fendants in dants to the said thirdly-mentioned suit, stating as hereinbefore is the third suit, stated, and charging that the said agreement ought to be forthwith j^^f '°^ ^^'^^ specifically performed and a good title made out, and a good and ought 10^6° sufficient conveyance executed to your petitioner of the said manor forthwith per- and other hereditaments, or that your petitioner ought to have the ^"'j™^'^' °'' ^^ said agreement delivered up to be cancelled ; and therefore praying to ^e cancel- that the said defendants to the said thirdly-mentioned suit might Ic led, und piay- restraiiic'd by the order and injunction of this honorable court from ing that the commencing or prosecuting any action at law against your peiitioner be'restraUied * in respect of the matters aforesaid or any of them, and that the said from proceed- defendants might be decreed forthwith specifically to perform the '"g ^t law and said agreement, and execute or cause to be executed a good and suffi- gpggfg^an to cient conveyance free from all incumbrances, save as in the said perform the agreement, and as hereinafter mentioned, to your petitioner of the agreement and said manor and other hereditaments, your petitioner being ready execute agood • couvcy&iicc to and willing and thereby offering, upon the said defendants' making t^e petitioner out a good title to the said manor and hereditaments and executing he offering such proper conveyance thereof as aforesaid, to pay the said purchase- thereupon to money and specifically to perform the said agreement on his part, or chase-money ■ that the said written agreement might be declared null and void as or that the against your petitioner, and might be cancelled by and under the di- agreement rection of the court, and that for that purpose the said defendants ^^fed Toid**" might be decreed to deliver up that part of the said agreement in audbecancei- their possession as in the said bill was mentioned. led. That the said defendants after considerable delay put in their Separate an- three several answers to the said bill, (that is to say ;) the said de- by t"e^°fend- fendant C. V. put in his answer on the day of , the said ants, and the" M. A. T. on the day of , and the said S. T. S. on the times when ; day of , each of the said defendants having taken out all ant'havf^"^' the orders for time to which they were entitled according to the taken outsail practice of this honorable court. the orders for 526 PETITIONS FOR COSTS, time to which That tlie Said vendors by their said respective answers admitted he was enti- *(;jjg gg^j^ Contract or agreement, but insisted that a good title had r'*f;97 1 ^®^" made to the said estates and premises and that there were no L ^^' J valid objections thereto, and that they should be enabled to execute dora admitted °'" ^ause or procure to be executed a good and sufficient conveyance the contract, of the Same to your petitioner. but insisted .That by an order made in this cause upon the motion of your pe- tMe had°been ti^ioner and bearing date the 30th day of July 1822, it was referred made and to Mr. C. One of the Masters of this court, to inquire and state to that they the court whether a good title could be made to the estates and pre- couid procure miges in question in this cause according to the agreement in the veyance'^tobe pleadings mentioned, for the better discovery whereof the parties executed. were to produce before the said Master upon oath all deeds papers Order made and writings in their custody or power relating thereto, and were upon the mo- ^o be examined upon interrogatories as the said Master should direct, petitioner re- ^^° "^^^ ^^ ^^ ^t liberty to state any special circumstances as he lerriug it to should think fit at the request of either of the parties, and after the the Master to gaid Master should have made his report such further order was to ih^r aVJot be made as should be just. title could be That the said reference was proceeded in with all possible des- made, andthe patch on behalf of your petitioner in the Michaelmas Term then fol- usnal direc- j jj^ tions given mii-iiiPi -i i • t i i with liberty to ihat the title-deeds of the said estates and premises had not been the Master to produced for the examination of your petitioner or his agent or solici- state special ^^j. ^^^ ^.j^g g^^j^j Master gave the said vendors various extensions of ^■es. time until the month of July 1823 to procure the said title-deeds, The reference ^^^ ^-Iso agreements signed by all parties interested in the said estate proceeded in and premises undertaking to convey. with all de- That the said Master made his report upon the matters so referred Theft! d d *° b™ bearing date the 22d day of July 1823, whereby he certified not haying t^a-* he had been attended by the counsel and solicitor for your peti- been produced tioner and by the counsel and solicitor for the defendants the vendors, tor examina- g^^^ jjj t^gij. presence had proceeded on the said reference ; and ab- aiiowedbythe stracts of the title of the defendants to the said estates and premises Master in or- having been laid before him, together with objections in writing taken and Sir W. M. M. were dead, and that soon after the pronouncing •- -^ of the said decree, namely, in the month of April 1821, both the said t^ ^g t,u;n ^^ W. S. S. and J. F. departed this life. a place to be That by reason of such deaths as aforesaid, your petitioners could appointed by not surrender the said copyhold lands and hereditaments as directed on''the'no°'t"^ by the said decree. side of the cut; That your petitioners are advised that the said decree is defective or but no costs erroneous, inasmuch as it does not with sufficient particularity or ^j^gf^gj^" °° perspicuity give directions as to the persons to whom to be appointed rpj^^j ^^^ 'm,_ by the said company or undertakers your petitioners are to surrender chase-monBy the said copyhold lands and premises, and inasmuch as it does not ^as been paid direct any inquiry whether the said deed of covenants under the cir- t^ongrs^and cumstances of the case is a proper and effectual deed of covenant the wharf wall upon which in case of breach or violation of the covenants therein erected. contained your petitioners could or might sustain actions or an ac- That the trus- tion at law, or otherwise have proper and effectual relief, and inas- ^^^^' ^^'^^ much as the said decree does not contain any directions for a proper plaintiffs were deed of covenant to your petitioners being entered into and executed the persons to by the proper parties in case the said deed of covenant in the said '^i^o™ t^e sur- decree mentioned is not a proper and effectual deed of covenant. ^g m^jg That your petitioners humbly submit that the said causes ought to Two of whom be reheard before his honor the Vice- Chancellor of England, in order at the tjme the that the said decree may be reversed or varied or altered in the res-, ^^'^'-'^-^ ^^^ pect above-mentioned or pointed out. ^ere dead ' Your petitioners therefore humbly pray your lord- and the other ship that the said causes may be re-heard before his *y° ''^^'j^u honor the Vice-Chancellor of England upon such day surrender dV^ as his honor shall please to appoint for that purpose ; reoted could and that the said decree may be reserved or altered not be made ; in the particulars hereinbefore mentioned ; and that That the de- such further or other order may be made in the pre- ^^g becauTe' mises as to your lordship shall seem meet. no direction is And your petitioners shall ever pray, &;c. gi^'^n to •' ^ r .; ' whom, in the We conceive these causes are proper to be re-heard touching thg ^^^°' which matter mentioned in the petition, if your lordship shall think fit. ^^^ surrender A. B. is to be made C. D. ^^^ because no inquiry is directed whether the deed of covenant is effectual upon which actions might be sustained, and if not effectual, that no directions are given for a proper deed to be executed; And submit that the causes ought to be re-heard, and the decree reversed or varied. ^543 PETITIONS OF APPEAL. **XVI. Petition of appeal from a decree hy the Master of the Bolls, directing an annuity to be set aside.{6) In Chancery. Between G. H. and J. S. . . . Plaintiffs, and M. P., widow, T. I., and R. R. and J. R Defendants. To the Right Honorable E. Lord Thurlow Baron Thurlow, of Ashfield in the county of Suffolk, Lord High Chancellor of Great Britain. The humble Petition and Appeal of the defendant M. P. Showeth, Loan by J. P. That On or about the 7th day of August 1779, J. P. your peti- the P^*''i°i- tioner's late husband deceased, lent to the plaintiff G. H. the sum of baud to the ' ■^lOO, and thereupon the plaintiffs entered into a bond to the said plaintiff G. H. J. P. in the penalty of £200 or same other penalty conditioned to ?f.}P°h "P°° he void on payment of £100 to the said J. P. his executors adminis- trators or assigns, with interest for the same. Agreement by That Some short time afterwards the said J. P. agreed to purchase J. P. to pur- of the plaintiff G. M. who was subject to and from time to time L^„^™,itJ„f' afflicted with the gout, an annuity of £50 for the life of the said an annuity Ot . .,«/-, tx n t n nnnn 501. for 200Z. plaintiff G. H. for the sum of £200. Payment of That the Said J. p. on or about the 18th day of August 1779 paid the 2001., and ^^^^ ^^ plaintiff G. H. the sum of £200 for the purchase of the a bond execu- ., r ,, ii.-iy- i-i t ted by G. H. said annuity, and thereupon the plamtifls entered into and executed and the plain- unto the Said J. P. a bond bearing date the said 18th of August i'e^urin " the ■^'^^^' ^° *^^ penalty of £400, conditioned to be void if the plaintiffs annuity dur- or some of them should pay or cause to be paid to the said J. B. his ing the life of executors administrators or assigns £50 of lawful, &c. yearly and ^- ^- every year during the natural life of the plaintiff G. H. by equal quarterly payments on, &c. the first payment thereof to be made on, &c. Warrant of That the plaintiffs also executed a deed-poll or warrant of attorney attorney also pf even date with the said annuity bond, to authorize entering up further secu- judgments against them in -the court of K. B. in an action of debt rity. for £400, being the penalty of the said annuity bond with costs. Deed of as- That the plaintiff G. H. also executed an indenture bearing even ^'Siment exe- (j^^g ^vith the said annuity, and made between himself of the one of his salary P^^* ^^^ ^^^ ^^^^ J- ^- °f ^^^ Other part, whereby the said plaintiff as a Commis- G. H. assigned all his salary or pay which he was interested in or sioner of entitled to as a commissioner of the tax office unto the said J. P. tru^tfor secu- ^'® executors administrators and assigns during the natural life of ring the an- the plaintiff G. H., Upon trust to apply the same in discharge of nuity. (6) See note (1), antea, p. 90. PETITIONS OF APPEAL. 543 such sum or sums of money as should thereafter become due and *payable for or in respect of the said aHnuity, and all such costs and [ *544 ] expenses as the said J. P. his executors administrators or assigns should pay or expend in procuring payment of the said salary or any arrears thereof, and after payment thereof, then to pay and apply the said residue of the said salary to the plaintiif G. H. his executors administrators or assigns as he or they should appoint. That on the 13th day of January 1781 the said J. P. departed this Death of J. P. life having duly made his will bearing date on or about the 1st day hf'fing made of August 1780, whereby he gave the said annuity to your petitioner qjferthing^he for life, and made the defendants J. R. and R. R. his residuary lega- annuity to his tees, and appointed them executors of the said will ; and the said wife, the peti- J. P. also made a codicil to his said will bearing date on or about {jfe"^and°mak- the 4th day of January 1781 whereby he constituted and appointed ing'two other the defendant T. I. together with the said defendants J. R. and defendants his R. R. to be equal and sole executors and residuary legatees of his '"^siduaiy said will ; and soon after the death of the said J. P. the defendants executore.° T. I. and R. R. proved the said will and cfodicil in the Prerogative The other de- Court of Canterbury, and they afterwards received of the plaintiff fendant T. I. G. H. the aforesaid bond debt of 100^. with all interest due thereon, ^^g° ^fP.°'°^^^ and delivered up the security for the same to the plaintiff G. H. residuary That the plaintiff G. H. from time to time paid the said annuity legatee by a of 501. to the said J. P. in his life-time up to the 18th day of No- codicil; vember 1780, and the same since the said J. P.'s decease hath from Probate of the time to time been paid to your petitioner up to the 18th day of Feb- (,;] j,y the ruary 1782. three execu- That after the aforesaid several payments of the said annuity, that '°ys> J^° ''^- is to say, some time in or about the month of April 1782, the plaintiffs jqq^ due^on exhibited their bill of complaint in this honorable court against your the bond. petitioner and the said other defendants T. I. R. R., and J. R., thereby That the an- suggesting amongst other things, that in August 1779 the plaintiff ""itywascon- G. H. being indebted to the plaintiff J. S. in 1001. and upwards, and paid'^uutil the to other persons in several sums to the amount of 200Z. and upwards, filing of the and being much distressed for money to pay his creditors applied to bill- the said J. P. to lend 300Z. who agreed to lend the same on the secu- i^in. exbibited rity of both the plaintiffs, and that on or about the 17th day of that pf^'t^ongr and month the said J. P. advanced to the plaintiff G. H. 100?. on the joint the executors bond of the plaintiffs for securing the repayment thereof with interest of her deceas- at 51. per cent, per annum, but refused to advance the remainder of the ^"^ i^usband, BOOL unless the plaintiffs would secure by their joint bond to him the g.^h° was^L said J. P. an annuity of 501. for the natural life of theplaintiffG. H. re- debted in deemableasthereinaftermentioned,andthat they the plaintiffs objected 300' per- been carried on in the county of Y. by his co-trustees there, and de- f^"^."^ f''' '" i-ii ■!• ■ -r 1 1 1- • <■ 1-1 the treaty. lendant residmg m London and not havmg interiered m the contract any further than by some previous correspondence with his co-trus- tees, and by testifying his approbation of and subsequently signing the contract, neither did defendant pretend or allege himself to be in the said month of July or at any other time seised of or otherwise well entitled for an estate of inheritance in fee-simple to the manor and other hereditaments in the said bill mentioned, or that he and the said other defendants could show and make out a good clear marketable title to the said premises, or that they had good right and authority to sell the same, and could execute or procure to be executed a good and sufficient conveyance of said hereditaments free from all incumbrances except as in the said bill mentioned, or otherwise except as aforesaid ; Saith that except as he is informed by the said bill he is wholly un- Saith that he able to set forth whether or not the said plaintiff was at the time in is unable to the said bill mentioned anxious to purchase a residence and estate in th'e'plalnti'ff^'^ that part of the country where the said manor and other hereditaments was anxious were situate, or whether or not he relied upon such alleged statements to purchase a as are in the said bill mentioned to have been made by this defend- ''T'!t°'^l' °^ , •> whether he re- ant s said co-trustees ; lied on the Denies that he ever made any such statements to the said plaintiff ; statements ai- Saith that he believes it to be true that two parts of the said '^.S^"^ '" ^^^ agreement hereinbefore mentioned were prepared, and that one of „ '■ ,, ■ o 11P111' '1 Denies navmg such parts was taken and kept by detendant and nis said co-trustees, made any and is now in their power, but whether or not defendant signed both such state- parts of the said agreement he does not recollect, and except as he ^e^ts. is informed by the said bill, is wholly unable to set forth as to his f^^^^rts^of belief or otherwise whether the other part of said agreement was taken the agreement and kept by said plaintiff or is now in his possession ( wereprepared, Saith he does not know but has been informed and believes that a ^^^^ ^ken ^ full true and correct abstract of the title of defendant and his co- ^e^defend- ^ trustees to the said manor and hereditaments was delivered to plaintiff ants, but is or his solicitor within one month or thereabouts from the date of the unable to state said contract, and that such title has in fact been approved of by or ^^^^^ '^^^ '^ on the part of the said plaintiff; taken by the Saith that except as aforesaid and except that he has been informed plaintiff. and believes that in the first instance an abstract of the title to said ^as been in- estate as deduced unto F. M. T. the owner was sent from L. to the b''e™ves''that solicitors at Y. employed by the said defendants M. A. T. and S. a full abstract T. S. on the 7th day of July 1821, and that a second abstract con- was sent to 582 ANSWERS. the plaintiff, taming an account of the incumbrances on that estate was sent and that he fj.Qjjj j]_ ^q ^.j^g gg^^ae solicitors on the 11th day of the same month of the title. *^^ J'^^J ^^ ^^^ Same year, and that a third .abstract of the title to the r *583 1 ^" *^st*t^ being part of the trust hereditaments, was delivered to the -fi. *i, * said solicitors at T., and were delivered by them to the said plain- baith that ex- . . '. ci ii-ii-c i cept as he has tin Or his solicitor, he IS unable to set tortn as to his beliei or other- been informed -wise whether or not on the 12th day of July last, or at any other ''t *°t''if^'''^' *™^» * partial abstract only of the title-deeds relating to parts of sent he knows the Said hereditaments comprised in the said agreement was delivered not whether a to the Solicitors of the said plaintiff, or how otherwise, or whether it partial ab- ,^3,3 jjQf; on the 19th of the Same month and not before that an ab- waT delivered stract of Other deeds relating to the same part of the said heredita- as stated in ments Or any other parts was delivered to the solicitor of the said the bill. plaintiff, except as aforesaid ; Does not be- iSaith that he does not believe that any of the deeds material to materiardeeda the title to the Said premises are omitted to be set forth in the same ; were omitted. Saith he has been informed and believes that said P. M. T. in his Believes that answer in the suit in the said bill mentioned, has endeavored to F. M. T. has impugn the validity of a recovery suffered by him and his late 1 Ti nn nt n pr mil f *■ cj •/ •/ %i endeavored to farther, of the Said hereditaments and premises, but defendant saith impugn the he verily believes that such recovery was duly and properly suffered, validity of a and that except as aforesaid the validity of the same or of any other fered o?the " i"ecovery, or of the deed leading the uses thereof, is not disputed in estates sold, the Said suit ; but believes Saith he does not believe that there are any good or tenable objec- that such re- ^jQjjg ^q the title to the said manor and other hereditaments comprised coveryisvalid. .,., , , i/»t,,. ^, Does not be- ^"^ *'^® ®^''' agreement, but on the contrary defendant believes that lievethatthere Such title has been approved of by or on the part of the said plain- are any valid tiff, and that defendant and his said co-trustees were in fact at the th^^ttl°°but *™^ °^ entering into the said agreement and are now seised or well believes' that entitled in equity for an estate of inheritance in fee-simple of or to the title has the manor and other hereditaments aforesaid. been approved Saith he is wholly unable to set forth as to his belief or otherwise ; ofthepialn^tiff, except as he is informed by the said bill, whether or not at the time and that the of entering into the said agreement hereinbefore mentioned plaintiff defendantsare ^as aware or had been informed that such suit (as in the said bill is equUable°es^'' mentioned) was depending, or that the validity of such recovery as tate in fee- aforesaid was disputed in the manner hereinbefore mentioned, but simple. defendant saith there being as defendant believes no well founded Cannot state objection to the said recovery, he submits and insists that if the said tiff waTor not P^*™tiff was not informed thereof at such time as aforesaid (but which aware of the defendant does not admit,) yet that same ought not now to prevent former suit, or the Said contract from being completed ; oftherecover^ ^'^"**^® ^^^^ *^® incumbrances upon the said hereditaments and being'^disp^u-'^''' premises are numerous and great, but defendant hath been informed ted, but in- by his co-trustee M. A. T. that the plaintiff was at the time of enter- ^'as^noUn ^^ ing into the said agreement fully apprized and aware of this circum- formed there- Stance, and of the embarrassed state of the trust property, and that of, yet that it it was sold for the benefit of the numerous incumbrancers theron, but ought not to the amount thereof prior to the date of the conveyance to the trus- contract%rom *®^3 defendants upon trust to sell was not so great as defendant be- ANSWERS. 583 lieves as to exceed the amount of the purchase-money agreed to be being comple- given by the said plaintiff; '^^' *Saith he hath been informed and believes that such of the said [ *584 incumbrancers upon the said hereditaments and premises as are ne- Admits tliat cessary parties to make a perfect conveyance thereof to the said tl^e incum- plaintiff, are willing to join therein ; brancea were Submits and insists that he and his co-trustees are able to procure harbeen^-" a good and suflScient conveyance of the said premises to be executed formed that to the said plaintiff, and that under such circumstances, and the said plaintiff was plaintiff having (as defendant believes) long since approved of the p^opTrty w*^ title to the said estates, he ought not to be released from his said gold to pay off contract, but ought to be compelled by the decree of this court to the same, but complete the same on his part : fieve that^'at Saith that the said plaintiff did not according to the best of defen- the date of the ^nt's recollection and belief make any applications or requests to trust convey- defendant as in the said bill mentioned ; ^"''^' *J"Yt Denies that he had threatened to commence or prosecute any ac- ^s much as tion at law against the said plaintiff for breach of the said agreement the purchase- or otherwise ; but defendant nevertheless submits that the said plain- money. tiff is bound to perform the same ; ruihTthetn- Denies combination, &c. [see sect. IV. antea, p. 569.] cumbrancers' as are neces- sary parties are willing to join. Submits that defendants are able to procure a good conveyance to be executed, and that the plaintiff ought not to be released from the contract. Denies any applications being made. Or that he has threatened to commence any action at law. VII. Answer of a trustee under a nuncupative will who had taJeen out letters of administration to the testator with his will annexed, submitting to account and claiming allowances for sums expended in educating and apprenticing the plaintiff . (For the form of title refer to sect. I. p. 563.) This defendant saving and reserving, &c. [see form No. 1, p. 565,] Admits that answereth and saith he believes it to be true that W. W. the 'tes- tl^e testator tator in the said bill named did on or about the — — day of Tupattve^wm duly make and publish his last will and testament being a nuncupa- as stated in tive will in manner in the said bill in that behalf mentioned, and ibe bill. that the said will with the signatures in the said bill mentioned is in such words and figures or to such effect as in the said bill in that behalf set forth, but for certainty as to the date and contents of the said will this defendant craves leave to refer to the probate thereof when produced, &c. ; And this defendant saith he believes and ad- Admits his mits it to be true that the said testator departed this life on or aboutf^^^*^^™^^'°g the day of the same month of , and that he at his death p7a°intiff and left the said complainant and W. W. the younger in the said bill another since named his two natural sons him surviving as mentioned in the said dead, bill ; And this defendant admits it to be true that soon after the said ^^^ of'^aVm-n testator's death the said will was in due form proved in the Preroga- igtration with 42 584 AXl 13 *T j;^J.liO* the will an- tive Court of the province of 0., and that letters of administration nexed ^ere gf the goods and chattels rights and credits of the said testator with defendant' * ^^^ ^^^^ ^i^l annexed were duly granted by the said court to this de- who has pos- fendant ; and that this defendant possessed and received all such sessed the parts of the said testator's personal estate and effects as he was able, [ *585 ] *and that he hath thereout paid all the said testator's funeral ex- personal es- penses and debts so far as the same have come to his knowledge and tate, and paid tjjg said legacy of £ to the said W. W., and that there remain- ^' "■ ed a considerable balance of the said personal estate in his hands ; and invested And this defendant saith that he hath laid out all the surplus of the the surplus, said testator's personal estate which hath come to this defendant's !f A^ ■i'^^„ hands, and also the dividends and interest thereof from time to time the dividends ' /.i-iiit tt'i to accumulate (except some part thereof which hath been applied to the mainte- (except a part nance of the said complainant as hereinafter mentioned) in the pur- ^PPj'^.'L*" chase of 3 per cent, consolidated bank annuities in the joint names maintenance) of t^is defendant and the said complainant, and in consequence in the names thereof the sum of £> of the said stock is now standing in their ofpiaintiffand joint names in the books of the Governor and Company of the Bank s •fh th t h °^ England ; And this defendant saith that he hath from time to time has laid out l^id Out and expended certain sums in the maintenance and educa- certain sums tion of the Said complainant, and hath lately entered into an engage- in educating ujgnt with Messrs. Gr. W. and P. calico-printers at D. to put the said and appren- Complainant apprentice to them and to pay them the sum of as ticing him, an apprentice fee for the said complainant, and in consequence of such engagement the said complainant is now with the said Messrs. and submits Gr. W. and P. as an apprentice ; And this defendant submits that he that be ought ought to have an allowance made to him out of the dividends and same allowed interest which have arisen from the surplus of the said testator's him. estate for all sums expended by him for maintenance of the said Believes that Complainant as aforesaid and also for the said apprentice fee ; And the other son this defendant further saith he believes it to be true that the said died intestate y^ ^_ ^}jg gojj jj^th departed this life intestate unmarried and with- issue and ^^^ issue ; And this defendant submits to account for the said per- submits to ac- sonal estate possessed by him, and to transfer the said stock into the count. name of the Accountant- General of this court as this court shall direct, but craves to have all just allowances made to him in such accounts as well in respect of the said maintenance and apprentice fee as otherwise. Without that, &c. [see sec. IV. antea, p. 669.] T. 0. C. VIII. Answer of an executor and trustee under a will to a bill for ^n account filed hy a legatee ; the executor being also heir at law • to the testator, and claiming as such to be entitled to freehold es- tates purchased by the testator after mahing his will and codicil, and denying any republication thereof. The defendant having misapplied part of the produce of the real and personal estate, submits to account for the value of the government securities in AJNiSWJiKS. 585 which the same might have been invested, {referring to schedules annexed.) {For the form of title, vide antea, p. 563, form No. 4.) This defendant, &c. [as in form No. 1, p. 565, and note {d), ib.] Admits th.it answering saith he admits that the testator S. M. in the said com- the testator plainant's bill named was at the time of making his will and codicil ^^j ^^f^t^ °^ and at the time of his death seised or entitled in fee-simple of and the descrip'- to certain real estates the names whereof this defendant hath *set r *58g ] forth in the first schedule to this his answer annexed and which he j/^^^ thereof prays maybe taken as part thereof; And this defendant further set forth in the answering saith that the said testator after making and publishing first schedule, his said will and codicil, purchased certain other real estates which That after this defendant hath also specified in the said schedule ; And this de- ™n,''''5, "L; ^ 1 1 1 1 111- 1 I'l Will ana coui- tendant has never heard nor does he believe that the said testator oil he pur- ever republished his said will and codicil or either of them after chased other making such last-mentioned purchases, and therefore he submits such ^^'^'^5' ''"^^ after-purchased lands descended upon him this defendant as the heir the same de- at law of the said testator ; And this defendant further answering scended to the saith he admits that the said testator was at the time of 'his death defendant as possessed of and entitled to a personal estate consisting of such par- . ' ' ticulars as in the>said complainant's bill mentioned and more particu- ^he testator larly set forth in the second schedule to this defendant's answer an- was possessed nexed, and which he prays may also be taken as part thereof; And "f Personal this defendant further saith he believes that the said testator when . , .' „, 1 o TIT- -1 11 1-11 Admits also he was oi sound and disposing mind memory and understanding duly his will and made and published his last will and testament in writing bearing date codicil, on or about in such words and to such purport and effect as in the said complainant's bill mentioned so far as the same is therein set forth; And this defendant further saith he believesthat the said testator duly made a codicil to his said will bearing date to such purport and effect a^ in the said complainant's bill mentioned, and that such will and codicil were duly executed so as to pass lands of inheritance ; And this defendant further saith that the said com- setting forth plainant has in his said bill very shortly stated the said will which fuUy''^te°true this defendant apprehends admits of some doubt as to. the true con- construction struction thereof, and which said will and codicil are in the following being douut- words, (that is to say :) &c. &c. ; And this defendant further saith '"^ > that the codicil to the said will was in. the words and figures follow- ing, (that is to say :) &c. &c. ; And this defendant further answering Bjiicves that saith he believes that the said testator S. M. departed this life on or ^^j'^^.'^^.^q^J,"'" about without revoking or altering the said will and codicil ^^^ wiil°aiuf save as the said will is altered by the said codicil ; And this de- codicil, fendant further answering saith he admits that the said testator left Admits that this defendant his heir at law, and the said complainant and the other the defendant natural children named in the said will and codicil him surviving ; '^ ^" ^ ''^^' And this defendant further answering saith he admits that he this that he alone defendant alone proved the said will and codicil in the Prerogative ^™i''fnd.''pos- Court of the Archbishop of C, and possessed all the personal estate sess'edtheper- of the said testator to the amount mentioned and set forth in the sonal estate, 586 ANSWERS. and entered second Schedule to this defendant's answer annexed ;_ And this upon and re- defendant further answering saith he admits that he hath entered rents of the Upon the Said testator's real estates of which the said testator was real estates as possessed at the time of making his said will and codicil, and re- set forth in the ceived the rents and profits thereof for such length of time and to duie° ^'^ ^' ^^^^ amount as is mentioned and set forth in the second schedule Saith that he to this defendant's answer annexed ; And this defendant further an- has disposed swering saith that since the death of the said testator he hath sold tetes Vhfch ^' ^^^ disposed of the said real estates of which the said testator the testator was possessed at the time of making his said will and codicil, the had at the particulars of which and the amount thereof this defendant hath [ *587 ] *set forth in the said second schedule to this his answer annexed ; time of mak- And this defendant further answering saith that he did employ part ing his will of the money arising from the real and personal estate of the said and that he testator in fulfilling such contracts as the said testator was engaged employed part in at the time of his death, and which is accounted for in the said oftheproduce second Schedule to this defendant's answer annexed, whereby it will in fulfilling the appear what interest profit or advantage hath been made by such tered into by moneys SO employed ; and this defendant also employed part of such the testator, moneys in his trade ; And this defendant further answering saith that and employed }jg liath in the said second schedule to this his answer annexed calcu- trade ^^^ ™ lated the amount of government securities which the said testator's Reference to estate come to the hands of this defendant would have purchased if the second the Same had been by this defendant from time to time laid out in schedule in government securities, and for which this defendant submits to account cuiated^he ' ^^ P*^' °^ ^^^ personal estate of the said testator, subject to the de- amount of go- mands to which such personal estate is liable ; And this defendant vernment se- further saith that he hath in the first schedule to this his answer an- curities w ich jjgxed Set forth a full true iust and particular account of all and every the estate pos- i-ii-t • ■, r ■ ^ t sessed by the the real estates which the said testator was seised oi or entitled to defendant in fee simple at the time of making his said will and codicil, and of would have ^ijich he continued to be seised at the time of his death, with the ^"^"^ ' name or names thereof and of each and every part thereof, and where Reference to ,, , n ■ ■ n-i • ^ the first sche- the same and each and every part thereoi is situate ; and in the said duie as con- second schedule the yearly value thereof and of each and every part taming an ac- thereof, and in whose tenure or occupation the same and each and real estate of every part thereof now is and from time to time since the death of which the tes- the Said testator hath been, and under what yearly or other rent or tator was rents, and what part of the time since the death of the said testator seise , ^j^jg defendant hath been in possession or receipt of the rents and the^sec'ond profits thereof and of what parts thereof, -and who hath been and for schedule for how long time in possession and receipt of the rents and profits the particulars thereof and of each and every part thereof; And this defendant thereof^" ^ further answering saith he hath in the said second schedule to this and of the ^'^ answer annexed set forth a full true perfect and particular ac- rents received count of all and every sum and sums which have or hath at any time by or for the g^jjd when been received by this defendant or by any other person or fendant and^' persons by his order or for his use for or on account of the rents and of the inoneys profits of the Said estates or any part thereof become due since the produced by death of the said testator, or from or on account of the sale of the tates"^**"^ *^" said estates or any part or parts thereof; And this defendant further ANSWERS. 587 answering saith he hath in the said second schedule to this his answer and also of annexed set forth a full true and particular inventory of all and singular *^^ testator's the goods chattels and personal estate and effects whatsoever which tTte^andTlie the said testator was possessed of entitled to or interested in -at application the time of his death, and all the particulars whereof the same con- thereof, sisted, and the natures kinds quantities full true and real values thereof and of every part thereof, together with such particulars as have been possessed or received by or come to the hands of this de- fendant or of any other person or persons by his order or for his use, and how and in what manner and when and where and by whom and to whom and for how much *the same and every part thereof hath [ *588 ] been sold or disposed of; And this defendant saith he believes that Believes that the said complainant attained his age of twenty-one years some time the plaintiff since ; And this defendant further answering saith he admits that the t^^^^-one'^ said complainant hath made such applications and requests to this ^^^^tnits the defendant as in the said complainant's bill mentioned; And this de- applications fendant further answering saith he hath not refused to comply there- made, but the with, but as there are some doubts as to the true construction of the *™^ construc- said will and several parties entitled to all of whom this defendant is ^iu to account, he this defendant is desirous to act in the premises as being doubt- executor of the said S. M. deceased under the directions and indem- fui, defendant nity of this honorable court. ' ■' desirous to ■' act under the indemnity of the court. IX. Answer of an executrix submitting to act under the indemnity of the court, {For the form of title, refer to sect. I. p. 563.) This defendant, &c. [see form No. 1, p. 565,] answering saith she Admits that admits that S. W. the testator in the said bill named was at the time *^^ testator of his death possessed of a considerable personal estate, and par- ^/consider- ticularly of the several sums in the public stocks or funds in the able personal said bill of complaint mentioned ; and that the said testator duly estate ; made and published his last will and a codicil thereto of such respec- ^°^ also his tive dates and to such purport or effect as in the said bill in that be- 7odicU°there- half stated ; but nevertheless, &c. to ; Relieves that the said testator did soon after making said will Believes that and codicil depart this life without altering or revoking the said will ^'^ ^'^^^ with- save by the said codicil, or without altering or revoking the said ^^s will and codicil leaving this defendant his widow and such other persons as in codicil; the said bill in that behalf named him surviving ; Admits that she hath duly proved the said will and codicil in the Admits that proper Ecclesiastical Court and hath taken upon herself the execu- she has proved tion thereof, and hath by virtue thereof possessed herself of as much possessed tiie of the said testator's personal estate and effects as she has been able personal es- to do ; And this defendant denies that she ever threatened to sell or tate, but dispose of the said stocks funds and annuities in the said will and bill ^°'^^ ^''^^^ 588 ANSWERS. threatened to mentioned without any regard to the interest of the said complainants sell any part ; j^ remainder therein, or hath made any transfer of the sam-e ; Submits to this honorable court what interest the said complainants are entitled to in the personal estate of the said S. W. by virtue of his said will ; Reference to SaitJi she hath in a schedule, &c. set forth a true and particular the first sche- account of all the personal estate to which the said testator was couIt°ofthe " entitled at his death, distinguishing what part thereof hath come personal es- to her hands or to the hands of any other person or persons tate ; *for iier use except such sums as are mentioned in the schedule herein- [ *589 ] after referred to ; And to the Saith she hath in the second schedule, &c. set forth an account second sched- current between her and the estate of the said S. W., and this defen- connrof thr' ^^"^^ ^^^^ therein set forth to the best of her knowledge, &c. a full application and true account of all sums of money part of the personal estate of thereof. the Said testator come to her hands, or to the hands of any person or persons to her use and of the application thereof ; Submits to ac- Saith she is ready and willing to account as this honorable court count, and to g^all direct for all such parts of the personal estate of the said tes- indem°i1ty of^ ^^^^"^ ^^ ^^'^'^ ^®^° possessed Or received by this defendant, having the court. all just and reasonable allowances made which she is entitled to as such executrix ; And in all other respects this defendant submits to act as the court shall direct, upon being indemnified and paid her costs of this suit ; And denies combination, &c. [see sect. IV. antea, p. 669.] W. A. *X. Answer of an executor and of the husband of the plaintiff to a bill for payment of a legacy — the executor admitting assets, and the husband claiming to be entitled to receive the legacy, {For the form of title, refer to sect. l.p. 563.) Admit that These defendants W. M. and F. H., &c. [see form Wo. 2, antea, the deceased p. 563,] severally answering say they admit it to be true that M. M. was possessed deceased in the said bill named was possessed of considerable personal tate ■ also her estate, and that she made such will of such date purport and effect will, and the as in the said bill set forth, so far as the same is therein set forth, bequest of the ^nd thereby gave to the said complainant the legacy or sum of 1. egsicj , j^ manner in the said bill mentioned, and nominated this defendant W. M. sole executor of her said will ; but for greater certainty these Her death ; defendants refer, &c. ; And these defendants further severally an- swering say they admit it to be true that the said testatrix departed this life at or about the time in the said bill in that behalf mentioned, and without altering or revoking her said will; And this defendant And probate W. M. further answering saith he admits, and this defendant F. H. of her will by gaith that he believes it to be true that this defendant W. M. did U. who^admits' ^^^J prove the said will in the proper Eccclesiastical Court, and did assets sufS- undertake the execution thereof ; And this defendant W. M. admits ANSWERS. 589 that under and by virtue of the said will he hath possessed himself dent to pay of the said testatrix's personal estate to an amount more than suflS- ^^^ legacy; cient to pay and discharge her funeral expenses just debts and lega- cies, and particularly the said legacy of 1, and that the said complainant hath applied to this defendant to be paid the said legacy also admits or sum of 1, so given to her by the said will as in the said bill ^^^ piaiutirs mentioned, and that this defendant W. M. did refuse to pay the same andhls rrfasal to her without the consent and "^concurrence of this other defendant j- ^cqq -i her husband, and without which this defendant is advised and humbly *- ^j" submits he could not safely pay the said legacy ; And this defend- gacyThhout' ant W. M. further saith he doth admit assets of the said testatrix the consent of come to his hands sufficient to answer the purposes aforesaid, and is ^^^ °^^^'^ ^^• ready and willing and hereby submits to pay the said legacy to such ^°'^^°''. person or persons and in such manner as this honorable court shall ung'topiythe be pleased to direct ; And this defendant F. H. saith he claims to be same as the and humbly insists that he is in right of the said complainant his <=o"rt directs. wife, entitled to receive and be paid the said legacy or sum of 1. *^'*™ ^y f- so given to her by the said will as aforesaid, and humbly hopes the [he'legacy7^ same will be ordered to be paid to him accordingly ; And these de- fendants deny, &c. [see sect, IV. antea, p. 569.] E. K. *XI. Answer of the executors of a deceased acting executor, to a bill of revivor ; the defendants not admitting assets, not knowing what was due from their testator to the original testator, but submitting to account. (For the form of title, refer to sect. I. p. 564.) , These defendants, &c. [see form No. 2, antea, p. 565,] severally Admit the on- answering say they believe it to be true that at or about the time in giaai bill filed, the said bill stated R. W. in the said bill of revivor named, exhibited his original bill of complaint in this honorable court against such parties as defendants thereto as in the said bill mentioned, thereby stating and praying to the effect in the said bill of revivor set forth, so far as the same is therein set forth, and that in consequence of the death of the said R. W. the said complainant T. W. at or about the time in the said bill of revivor mentioned, exhibited his supplemental the supple- bill in this honorable court against such parties defendants thereto ""^^'^l ^'"> as therein mentioned, stating and praying to the effect in the said bill of revivor set forth, so far as the same is therein set forth ; And that andthesubse- the said several defendants in the said supplemental bill named, after- quent pro- wards appeared and put in their answers thereto, and that such proceed- '^^^ '°^^' ings have since been had in the said cause as in the said bill of revivor mentioned ; but for their greater certainty nevertheless these defendants crave leave to referto the said original and supplemental bills answers and other proceedings now remaining filed as of record in this honorable court ; And these defendants further severally answering say they admit it to be true that before any further proceedings were had in the said 590 ANSWERS. Admit the death of G. R. a defendant; That he had principally acted as exe- [ *591 ] cutor, and that the de- fendants have since proved his will, and possessed his personal es- tate. Believe that the same is sufficient to answer what might be due to the estate of T. W., do not admit the same, but submit to ac- count ; And submit that the. suit and proceed- ings may stand revived. cause, and at or about the time in the said bill of revivor in that behalf stated, Gr. R. one of the defendants to the said original and supplemental bills, and one of the executors and trustees under the will of the testa- tor T. W. in the said bill of revivor named, and who hath principally acted in the trusts thereof, departed this life having first duly made and published his last will and testament in writing of such date as in the *said bill of revivor mentioned, and thereof appointed these defend- ants executors ; And these defendants admit that since his death they have duly proved his said will in the proper Ecclesiastical Court, and undertaken the executorship thereof, and are thereby become his legal personal representatives, and that they possessed the said G. R.'s personal estate and effects so far as they have been conve- niently able, and these defendants believe (although they do not admit the same) that such personal estate and effects are sufficient to answer whatever might be due from the said G. R. at the time of his death to the estate of the said testator T. W. if anything were so due ; but these defendants not knowing the amount thereof are advised that they cannot with safety or propriety admit assets of their said testator to be in their hands sufficient to answer the same, and these defendants say they are ready to account for the said Gr. R.'s personal estate possessed by them or for their use, in such manner as the court shall be pleased to direct, if the same should become necessary ; And these defendants further severally answer- ing say they submit that the said suit and proceedings which became abated on the death of the said Gr. R. may stand and be revived against them as such executors as aforesaid, and be restored to the same plight and condition in which they were in at the time of the death'of the said Gr. R. ; Without that, &c. [see sect. IV. antea, p. 569.] XII. Answer of an executor of a deceased executor to a hill of revi- vor and supplement ; the defendant admitting assets. {For the form of title, refer to sect. I. p. 564.) This defendant, &c. [see form No. 1, antea, p. 565,] answering saith he believes it to be true that at or about the time in the said bill stated the several persons therein in that behalf named exhibited their original bill of complaint in this honorable court against such parties as defendants thereto as in the said bill are mentioned, thereby stating and praying to the effect in the said bill set forth the decree and SO far as the same is therein set forth ; and that such decree decretal the subse- quent pro- ceedings ; Admits the filing of the original bill, The death of A. W. a de- fendant ; order bill of revivor and other proceedings were had therein as in the said bill set forth; but for his greater certainty nevertheless this defendant craves leave to refer to the said original bill decree and other proceedings now remaining as of record in this honorable court; And this defendant further answering saith that A. W. in the said bill named hath lately departed this life, and that the said A. W. ANSWERS. 591 duly made and published his last will and testament in writing, and His will ; thereby appointed Dame A. B., R. T. and this defendant executrix and executors thereof, and that this defendant hath since the death ■^'^^ tl»^' ^^^ of the said A. W. alone duly proved his said will in the Prerogative J^^^ proved Court of the Archbishop of 0. and is thereby become his legal pet- the same but sonal representative, but this defendant doth not know *nor can he r *592 ] set forth as to his belief or otherwise who is the heir at law of the cannot state said A. W. ; And this defendant further saith^he doth not know nor who is the heir can form any belief whether the said A. W. did or not after making ^"^?y' ^l^-r^ of the report in the said bill mentioned, receive any sum or sums of ^j-Jj, j^g j^^-^i money arising from the real and personal estate of D. Gr. the elder ing of the re- the testator in the pleadings of this cause named, which ought to port possessed have been accounted for by him ; but this defendant saith he admits !fZR^^f n n 1 111 •! 01 •!» TTT re ■ estate OI i). tr. that he hath received assets oi the said A. W. sumcient to answer tut that he any such sum or sums of money if it shall appear that any such admits assets, were received and not accounted for by the said A. W. in his life- '^ '^"y such^ time ; And this defendant saith that he is a stranger to the several ge^ by A. W. other matters and things in the said bill inquired after ; But submits and not ac- that the said suit and the proceedings had therein should stand and counted for. be revived against him this defendant as such personal representa- ^°^ ♦h'''™^*f tive as aforesaid ; And this defendant denies, &c. [see sect. IV. may be reviv- antea, p. 569.] ed. *XIII. Answer of an infant heiress to a bill hy simple-contract creditors against the executors and trustees under the will of her father, who had died greatly indebted, possessed of real and per- sonal estate. {For the title, see form No. 3, antea, p. 569.) This defendant(25) answering saith she does not know and cannot Does hot set forth as to her belief or otherwise whether Z. R. the testator in know whether the said bill named was or not in his life-tin^ indebted to the said ^^^ oT not in- complainant J. 0. in the sura of 315Z. or any other and what debted to the sum of money for moneys lent and advanced paid laid out and ex- plaintiff J. C, pended to or for the use of the said Z. R., nor whether for securing the repayment thereof with lawful interest for the same he the said Z. R. did or not make and sign such promissory note of such date nor whether and in the words and figures or to the purport or effect as in the '^romfs'sorT^ said bill stated and set forth, or to any other purport or effect, nor note, whether the said Z. R. did or not on the 28th day of April 1821 or at any other time pay off and discharge the sum of lOOZ. ^°^ ^l^o^ or any other sum of money part of the said 315Z. secured by the part rf the said promissory note together with all or what arrears of interest, amount se- nor whether the sum of 315Z. or any other sum of money to- ^"'^ed by the gether with interest thereon from the 1st day of January last or not^'wUh all . „ , arrears of in- (25) See note (c), antea, p. 565, and note (j), p. 569. An infant's answer cannot be excepted to for insufSciency. 592 ANSWERS. terest, nor what amount is due, nor whether the testator [ *593 J was or not in- debted to the plaintiffs J. C. and T. R. as Bolicitors, or to J. R. for money leut, nor whether he did or not sign the bills of exchange stated in the bill, nor whether he was or not indelpted to the plaintiff J. L. for money lent, nor whether he did or not sign such other bill of exchange as stated in the bill, but be- lieves that he died indebted to various per- sons ; admits his death ; and his will ; leaving S. R. his widow and this defendant his heiress at Jaw; Believes that S. R. and the three other de- fendants prov- ed the will ; but cannot state whether they entered into posses- sion of the testator's es- tates ; or possessed his personal estate ; or paid his fu- neral and tes- tamentary ex- penses ; from any other time doth or not now remain due and owing to the said complainant J. C, nor whether the said Z. R. was or not at the time of his death indebted to the said complainant J. C. and T. R. or either of them in the sum of 55?. or any other sum of money for business done and transacted and moneys paid laid out and ^expended for him or for his use in their business or profession of attorneys and solicitors, nor whether the said Z. R. was or not also at the time of his death indebted to the said complainant J. R. in the sum of £35 for money lent and advanced or in any other sum of money, nor whether the said testator did or not make and sign such bills of exchange or promissory notes of such date respectively, and in the words and figures or to the purport and effect as in the said bill stated to bear date the 17th day of June 1824 and the 25th day of August 1824, or to any other purport and effect, nor whether the said testator was or not also at the time of his death indebted to the said complainant J. L. in the sum of £65 for money lent and ad- vanced work and labor done and performed and the goods sold and delivered or in any other sum of money, nor whether the said testa- tor did or not make and sign such bill of exchange of such date and in the words and figures or to the purport and effect as in the said complainant's bill stated to bear date the 3d day of July 1824, or to any other purport and effect ; but this defendant further saith she hath been informed and believes that the said testator was indebted to various persons on specialty and simple contract at the time of his death ;. And this defendant further answering saith she admits that the said Z. R. departed this life on the 16th day of April last, seised and possessed of or otherwise well entitled unto very consid- erable real and personal estate, and that he made and published his last will and testament in writing of such date purport and effect as in the'said bill mentioned and set forth, so far as the same is therein set forth ; And this defendant further saith she admits that the said testator departed this life as aforesaid leaving his wife S. R. the mother of this defendant and also a defendant in the said bill named, and this defendant his only child and heiress at law; And this de- fendant further answering saith she has been informed and believes that the said S. R. together with M. C. D., A. K. and R. D. three other defendants in the said bill named and also trustees and execu- tors named in the said will did on duly prove the same in the Prerogative Court of the Archbishop of Canterbury, and take upon themselves the burthen of the execution thereof; And this defend- ant further saith she does not know and cannot set forth as to her belief or otherwise whether the said Z. R., M. C. D., A. K. and R. D. or any or either of them have or hath not also as such trustees and executors named therein entered into possession of the said tes- tator's freehold copyhold and leasehold estates and receipt of the rents and profits thereof, nor whether they or any or either of them have or hath not also possessed themselves himself or herself of all or any part of the said testator's personal estate moneys securities for money goods chattels and effects or any of them, nor whether they or any or either of them have or hath not thereout paid and dis- charged the said testator's funeral and testamentary expenses, but ANSWERS. 593 this defendant hath been informed and believes that all the debts but believes due and owing by the said testator at the time of his death still re- ^f^* ^'^ ^^^ main unsatisfied; And this defendant further saith she does not know paid^-'^'^^ "°" and cannot set forth as to her belief or otherwise whether the said cannot state complainants have or not frequently by themselves and their agents as to any ap- made such *applications and requests to the said other defendants as plications in the said bill in that behalf stated and set forth or any other or „fa™^ what applications ; And this defendant further answering saith she r =1=594 t doth not admit that the said testator's will was duly executed and , ^ t d t attested as by law is required to pass real estates by devise, or that the will being the said testator was of sound and disposing mind memory and un- duiyexecuted, derstanding at the time of making and executing his last will, and °^ ^''f^* ^^^ humbly insists that the said complainants ought to be put to due ofsoundmind proof thereof; And this defendant further saith that she is an infant (26) and puts under the age of twenty-one years, (that is to say) of the age of tbe plaintiffs three years and months or thereabouts, and humbly submits theSo'f!°° her rights and interests to the protection of this honorable court. g^ith that she is an infant, and submits her rights to the protection of the court. XIV. Answer of a widow electing to take the bequests made to her by a will, and to release all interest in the devised estates. {For the form of title, refer to sect. I. p. 563.) • This defendant, &c. {^seeform Ho. 1, p. 565,] answereth and saith she believes it to be true that C. B. deceased the testator in the said bill of complaint named being possessed of a large personal estate did at or about the time in the said bill of complaint mentioned duly Admits the make and publish his last will and testament in writing of such pur- 7^^^' ^^^ *^* port and effect and containing such bequest to this defendant as in defendant- the said bill of complaint in that behalf set forth, and that the said testator appointed such persons as in the said bill of complaint named executors and executrix of his said will; And this defendant further answering saith she believes it to be true that the said tes- tator afterwards and at or about the time in the said bill of com- plaint mentioned duly made and published a codicil to his said will also a codicil in such words and to such purport and effect as in the said bill of T^a^t^^-*^^ complaint also set forth ; but for her greater certainty nevertheless ' as to the said will and codicil and the respective dates purports and contents thereof this defendant craves leave to refer thereto when produced ; And this defendant further answering saith she admits that the said testator departed .this life at or about the time in the his death ; said bill of complaint in that behalf mentioned, without having in any manner altered or revoked his said will, save by the said codicil, and without having altered or revoked his said codicil ; and that the (26) It would not be proper to make such admissions on thS part of an infant, but even if admitted they could not be read against the infant. 2 Madd. Ch. Pr. 333. 594 ANSWERS. and that the plaintiffs have proved the will and codi- cil ; [ *595 ] claims the be- nefits intended the defendant by the will, and others to release all in- terest in the devised estate. said complainants have since duly proved the said will and codicil in the Prerogative Court of the Archbishop of Canterbury, and taken upon themselves the executorship thereof; And this defend- ant further saith she claims to be entitled to the benefits intended *her by the said testator's will, and is ready upon the same being secured to her according to the directions in the said will contained to release to J. P. in the said will named all her right and interest in and to the premises in the said will mentioned, and for that purpose to execute all necessary instruments or deeds ; And this defendant denies, &c. [see sect. IV. antea, p. 569.] Believe that the plaintiff was for years acquainted with his wife before their marriage ; that a treaty was for some time pending; and that in 1813 the mar- riage was solemnized. Claim by the adults to be entitled joint- ly with the in- fants as the next of kin of the deceased's wife to the moneys set- tled by her. Claim by one *XV. Form of answer ly adult and infant defendants claiming as next of kin to the deceased wife of the plaintiff, who hy his bill sought to set aside a secret settlement made by his late wife before her marriage.{21) [For the title, see form No. 9, p. 564.) These defendants J. B. and M. his wife, H. H., E. H., W. H., J. P., and T. P. {the adults) now and at all times hereafter saving and reserving, &c. \as in form No. 2, p. 563, as far as the words "make answer unto," and proceed thus :^ they these defendants J. B, and M. his wife, H. H., E. H., W. H , J. P. and T. P. severally answering say they believe it to be true that the said complainant was for several years previeus to the year 1812 on terms of intimacy and friendship with M. P. spinster in the said bill named, afterward^ M. Gr. the wife of the said complainant, and that a treaty of mar- riage was for some space of time pending between the said complainant and the said M. P., which was at length in the said year 1812 concluded and agreed upon between them ; and that on or about the 6th day of July 1813 the marriage between the said complainant and the said M. P. was duly had and solemnized, but for what space of time such treaty of marriage was pending, or when in particular the same was concluded and agreed upon, these defendants do not know and can- not set forth as to their information or belief or otherwise ; And these defendants J. B. and M. his wife, H. H., E. H., W. H., J. P. and T. P. further severally answering say, &c. &c. [Inserting the names of the adults at the beginning of the answer to each interrogatory J] And these defendants J. B. and M. his wife, H. H., E. H., W. H., J. P., and T. P. claim to be entitled to the said principal moneys and interest jointly with the said infant defendants W. P. and J. P. as the next of kin to the said complainant's said late wife, to the total exclusion of the said complainant's rights as in the said coinplainant's said bill alleged ; and in case this honorable court shall be of opinion that they are entitled to the said principal moneys and interest as such next of kin, this defendant M. B. humbly hopes that this honorable (2T) See the case of Ooddardy. Snow, 1 Rubs. 4S5. ANBWBKS. 595 court -will order and direct her part or share of and in the same defendant to moneys and interest to be settled upon and for her separate use and have her share benefit ; *And these defendants W. P. and J. P. severally say that separate use!' they are infants under the age of twenty-one years, and that they r *^qq n severally claim such interest in the premises as they are respectively Two of the de- entitled to, and submit their several interests to the protection of fendants in- this honorable court ; and these defendants J. B. and M. his wife, fants, and H H E. H W H., J. P. and T. P. severally deny, &c. [see form ^^^l, IV. antea, p. 669.] protection of the court. *XVI. Part of an answer of the widow and executrix of a deceased surviving executor ; the plaintiff claiming either as administratrix or in her own right to he entitled to the share of a residuary legatee who was supposed to have attained twenty-one and to have died abroad intestate, — the anstver statirig a release executed by the plaintiff and her late husband to the defendant's late husband as surviving trustee and executor, and claiming the same benefit therefrom as if pleaded.{28) And this defendant saith that by a certain deed poll or instrument Statement of in writing under the hands and seals(29) of N. P. and the said com- ^^^ release. plainant then the wife of the said N. P. bearing date on or about the 24th day of February 1800, the said N. P. and the said complainant did in consideration of the sum of 181?. to them paid by the said J. B. the receipt whereof they the said N. P. and the said complainant did thereby acknowledge and which sum was in fact so paid, remise release and for ever quit claim unto the said J. B. the late husband of his defendant his heirs executors and administrators all and all manner of action and actions, &c. and demands whatsoever both at law and in equity or otherwise howsoever which against the said J. B. as such surviving trustee and executor of the said T. S. they the said N. P. and the said complainant or either of them ever had, and which they their heirs executors or administrators should or might thereafter have claim challenge or demand for or by reason or means of any matter cause or thing whatsoever; As by such deed poll or instrument in writing to which this defendant craves leave to refer when the same shall be produced will appear. And this defendant submits to this honorable court whether or Submits whe- not if the said N. B. died unde'r the age of twenty-one years the ther the piam- said complainant as the only surviving grand-child of the said tes- entitled as tator T. S. as the said complainant alleges in her said bill, became surviving entitled in her own right to the said, share of the said N. B. under or grandchild. by virtue of the said testator's will ; and this defendant further an- Admits appli- swering saith she admits that applications have been made to her by or cations have on the behalf of the said complainant, and also by one W. B. who ^®®° ^^^^ '• stated himself to be the brother of the said N. B. for the purposes in the said complainant's original and amended bill of complaint mentioned, (28) See Ld. Red. Tr. PI. p. 308, 4th edit. (29) See Ld. Ked. Tr. PI. p. 263. 596 AJNSWilJJiB. Denies having and this defendant positively denies that she ever refused to comply refused to *^ith such application otherwise than as this defendant alleges, that with! ^ ^ ' s^^ always distinctly stated in answer to such applications that when- r *597 1 ^^^^ satisfactory proof of the death of the said N. B. was adduced, the executors of the said J. B. were ready to account for the said share of the said N. B. to the persons or person who should be legally entitled to the same ; and this defendant saith that she hath always been and now is perfectly willing to account for and pay over the share of the said N. B. of and in the said testator's estate to the per- Submits whe- son Or persons who is or are by law entitled to receive the same ; and ther the plain- ^fjig defendant submits to the judgment of this honorable court, exclusively whether or not the said complainant is exclusively entitled either in entitled either her Own right or as the legal personal representative of the said N. in her own B. to the said share of the said N. B. either in the whole or in part, mfniltratrix-" ®^^° though it should Satisfactorily appear that the death of the said N. B. took place at the period in the said complainant's original and Submits that amended bill of complaint stated ; and this defendant submits to this b'^h ^^r^^ honorable court that by virtue of the said general release of the ' 24th day of February 1800 from her and her said husband to the said J. B., she the said complainant is wholly barred from making any claims on the said J. B. or his estate, in respect of the estate of the said testator T. S., and this defendant craves leave to have the same benefit from the said release as if she had pleaded the same ; andsubmitsto and this defendant submits to act in the premises as such executrix act under the 3,3 aforesaid under the direction and indemnity of this honorable the Court. court, and humbly hopes to have her reasonable costs and charges allowed hei: in this behalf; And this defendant denies, &c. *XVII. Statement in an ansiver to the statute of frauds, and claim- ing the same benefit therefrom as if pleaded.(^0) And this defendant saith that by an act of parliament made in the 29th year of the reign of King Charles the Second, intituled "An act for the prevention of frauds and perjuries," it is amongst other things enacted, that from and after the 24th day of June 1677, no action should be brought whereby to charge any person upon any contract of any lands tenements and hereditaments or any interest in or concerning them, unless the agreement upon which such action should be brought or some jnemorandum or note in writing should be signed by the said party to be charged therewith or some other person by him lawfully authorized ; And this defendant insists upon the said statute, and claims the same benefit as if he had pleaded the same. (30) See Ld. Red. Tr. PI. p. 267, 309 ; Beames on Pleas, IT8. ANSWERS. *598 *XVIII. Answer of the lord of a manor who had seised certain copy- hold premises for want of a tenant after the death of a former I tenant. {For the form of title, refer to sect. I. p. 563.) This defendant, &c. [see form No. 1, p. 563,] saith he admits it Admits that to be true that he this defendant is lord of the manor of H. in the ^^ ^^ ^°^^ °^ county of N., and that I. H. in the said bill of complaint named, *Jj« '°^"°''' was in and before the month of seised to him and to hia heirs sdsed of cl^ according to the custom of the said manor of and in, &c. : And that tain premises, on or about the said I. H. and M. A. H. his wife in the said "^,** I- H- and bill of complaint also named, conditionally surrended all their and dered their°es- either of their messuages lands tenements and hereditaments holden tates to S. G. of and situate within the said manor, To the use of S. G. in the said by way of bill of complaint mentioned her heirs and assigns, by way of security °""'*g^g«i for the sum of and lawful interest thereon ; And this defendant that at a court saith that at a general court baron holden for the said manor on or baron S. C. as about the day of , and not as in the said bill of com- y^^^J^^^^ar plaint in that behalf alleged, S. C. in the said bill of complaint also gainlnd s^al'e mentioned, was under and by virtue of such bargain and sale as in was admitted the said bill of complaint in that behalf set forth, admitted to all *° *^^ ^^™^ the said copyhold premises so surrendered by the said I. H. and ^^'^'^®- M. A! H., To hold to her and her heirs according to the custom of the said manor ; and at the same court an acquittance or satisfaction Satisfaction of under the hand of the said S. C. as executrix of the said S. G. on the the mortgage said surrender of the day of was presented and duly en- «°tf!red on the tered on the court-rolls of the said manor ; And this defendant fur- g°^J' ™''^' ther answering saith he believes that at a general court baron holden at another for the said manor on or about the day of the death of the court the said S. 0. was presented by the homage, and that who was the next ^^^^^ of S. c. heir to the said premises was not known, and thereupon proclamation rndfirlTpro-' was duly made for any person or persons having right to the said pre- clamation mises to claim the same and be admitted thereto ; and at a general ""^^^ for the court baron holder! on the day of a second proclamation ^^^ '" *^'^"°; was duly made to the same effect ; and at a general court baron damation™' holden for the said manor on the day of a third proclama- ^nd third pro- tion was made in like manner, and by reason that no person came into clamation ; claim the said premises or to be admitted thereto, a precept was issued no person at such last general court to the bailiif of the said manor, whereby he claiming a was commanded to seise in the presence of two or more copyhold ten- to thTbaiiff to acts of the said manor all the said premises into the hands of the lord seise the pre- for want of a tenant ; and at a general court baron holden for the mises, said manor on or about the day of S. T. the bailiff of the ^""^ ^^ ^'^- said manor certified that on the day of then last past he the^baiiff'^cer- the said S. T. had in the presence of I. 0. and T. D. two copyhold tified that he tenants of the said manor entered upon and seised all the aforesaid "^^^ seised the premises into the hands of the lord for want of a tenant thereto ; P^'^'^^^^s. But for his greater certainty nevertheless as to the several surrenders 598 ANSWERS. [ *599 ] Offers to hold a court, and to admit the rightfultenant on being paid the customary fine; Or thus : — Claims to be absolutely en- titled, and submits that he ought not to be restrain- ed from pro- ceeding at law. and other proceedings, this defendant craves leave to refer to the *court-rolls of the said manor or to the copies thereof when pro- duced. *[And this defendant saith he is ready and willing to cause a court to be holden for the said manor and to admit as tenant to the said premises such person as this honorable court shall be pleased to direct, being indemnified in that behalf and paid his customary fine on such admission.] And this defendant saith that he is a stran- ger to all other the matters in the said bill of complaint contained ; and this defendant denies, &c. {see sect. IV. antea, p. 669.] Observations. — The seisure appears to have been absolute and not conditional, and if such a seisure be warranted by the custom of the manor, there seems no reason why the lord shotild not insist upon his title under it. In that case the end of the answer in the place of that part which is between crotchets*, would run thus : " And this defendant further answering saith that according to the " custom of the said manor of H., this defendant as lord of the said " manor is become absolutely entitled to the said several premises by " virtue of the notices and proceedings aforesaid ; And this defendant " humbly submits that he ought not to be compelled to admit any ten- " ant thereto or to be restrained from proceeding to recover the same "by ejectment." If the custom to entitle the lord be not clear, then the answer must stand as drawn ; otherwise the defendant may be made to pay costs. Admits the loan. the execution of the mort- gage securi- ties. the death of the mortga- gee, but is igno- rant whether he left A. W. his heir at law [ *600 ] XIX. Answer of the mortgagor to a bill of foreclosure. {For the form of title, refer to sect. I. p. 563.) This defendant, &c. [see form No. I. p. 565,] answereth and saith he admits it to be true that this defendant did at or about the time in the said bill of complaint in that behalf mentioned, borrow the sum of 1, from A. W. the elder in the said bill of complaint named, and that thereupon such indenture of bargain and sale and such bond as in the said bill of complaint are set forth, were duly made and ex- acuted by and between this defendant and the said A. W. the elder, and were of such date and of such purport and effect as in the said bill of complaint in that behalf stated ; but for his great certainty nevertheless as to the said indenture and bond and the respective dates purport and efi'ect thereof this defendant craves leave to refer thereto when produced ; And this defendant further answering saith he admits it to be true that the said A. W. the elder departed this life before payment of the said principal money or any part thereof ; And this defendant further saith it may be true for any thing this defendant knows to the contrary that the said A. W. the elder left A. W. the younger in the said bill of complaint also named his eldest son and heir at law him surviving, and that he had first duly made and published his last will and testament *in writing, and thereby ANSWERS. 600 appointed the said complainant T. W. and the said A. W. the younger or made a will and L. W. since deceased executors thereof, and that the said exe- ''PP.°'°^°f '^® cutors duly proved the said will in the proper Ecclesiastical Court, ^niA. w. and and that the said ■will did not in any manner affect the said mort- L. w. execu- gaged premises, and that the legal estate and interest therein des- ^°^^> o"" '"^^- cended on and vested in the said A. W. the younger, and that such proyed^the indenture as in the said bill of complaint is stated to bear date, &c. same, or whe- was duly made and executed by and between such parties and to such t^ier the legal purport as in the said bill of complaint set forth ; and that the said gge'nded^to A E. W. the younger departed this life at or about the time in the said w. or as to the bill of complaint in that behalf mentioned, leaving the said complain- execution of a ant G. W. an infant, his eldest son and heir at law him surviving <=^'''^™ J^^^^'^; and that he had first duly made and published his last will and ^, ^ied leav- testament in writing of such date as in the said bill of complaint men- ing the piain- tioned, and thereby appointe4 the said complainants T. W. &c. execu- t'ff Cr- ^- his tors thereof, and that the said complainants duly proved the said will , , ' m the proper Ecclesiastical Court, and that the said will did not in y^^ jj^d made any manner affect the said premises, and that the legal estate and in- awillappoint- terest therein descended upon and is now vested in the said complain- ^?g *'^ P'^''^" ant G. W., and that the said T. W. departed this life soon after the exTcutoTs,' or ' death of the said last-mentioned testator, and that thereupon the said whether they complainant T. W. became also the surviving executor of the said A. proved the W. the elder, but this defendant knows nothing of the said several ^T";, ' .^"IT i (••1 ^ ■ • o 11 i-ni-iin 1- ™^r the legal matters aioresaid save as ne is informed by the said bill oi complaint, estate de- and therefore craves leave to refer the said complainants to such proof scended to G. thereof as they shall be able to make ; And this defendant admits that ^•' °^ ^^" the said principal sum of 1, or any part thereof hath not yet been became the paid, and that the same now remains due and owing from this defend- surviving exe- ant on the security of the said mortgaged premises together with an '^^^°'^ °^ *^ • ■* • m o Ftp's. P"?? ' arrear of interest thereon from , but this defendant denies that • t th t the said mortgaged premises are a scanty security for the same, and ^\^^ mortgage- on the contrary thereof this defendant saith that the said mortgaged money has not premises are the value of £ and upwards ; and this defendant ?''®" P^^'^ ^^^ saith that there is no other charge or incumbrance affecting the said ^.-^^-^ interest mortgaged premises; and this defendant trusts this honorable court denies that the will allow him a reasonable time for the redemption of the said pre- security is mises ; And this defendant denies, &c. [see sect. IV. antea, p. 569,] scanty, or that there is any other incumbrance. *XX. Answer of the executors of the first mo}-tgagee to a bill of foreclosure, filed by the assignee of the second mortgagee {who had obtained possession of the title deeds and claimed apriority over the fi,rst mortgagee) against the infant heir of the mortgagor, and also against a subsequent mortgagee. [For the form of title, refer to sect. I. p. 564.) These defendants, &c. [see form No. 2, jj. 565,J severally an- Admit the swering say they have been informed and believe it to be true that execution of 43 600 ANSWERS. the mortgage such indenture of demise or mortgage of such date between such M ^'^^sil'^- *pa'rties and of such purport or effect as in the said complainant's r^ifiOl 1 original(31) and amended bill of complaint mentioned to bear date L " -^ J the 10th day of May 1814 so far as the same is therein set forth was duly made and executed, but these defendants for greater cer- tainty crave leave to refer to the said indenture when the same shall and that the be produced ; And these defendants further say they believe it to be deeds were ^j,yg ^j^ii^ all the title-deeds and writings relating to the premises to W. P. by comprised in the said indenture of demise or mortgage were delivered the testator T. over by the testator T. E. in the said complainant's original and ^- ; amended bill of complaint named to W. P. therein also named at the time of the execution of such indenture of demise, but these defend- ants do not know the same of their or either of their own knowledge ; do not know And these defendants further say that they or either of them to the whether T. E. knowledge or belief of the other of them do not know have never part ort'he° ^^®^ informed save by the said complainant's bill, and therefore can- premises, not set forth as to their or either of their belief or otherwise whether the messuage or tenement in the said complainant's original and amended bill of complaint mentioned to be situate in, &c. was or not -nor whether sold and disposed of by the said T. B., nor whether he did or not he paid part of pg^y (.j^g g^^^ q£ £600 part of the mortgage-money in the said com- money to W. plainant's original and amended bill mentioned to be due to the said P. in reduc- W. P. Out of the purchase-money of such messuage, nor whether it tionofhis (jj^ Qj. jjq(; reduce such mortgage-money to the sum of £400, but belieye^hat" these defendants believe that the same mortgage-money was reduced the same was to the Sum of £400, and that it was agreed that the same sum of reduced to £400 should reniain as a mortgage on the estate called Little C. in it was^'agreed *^® ^^'^ complainant's original and amended bill mentioned as there- that the same in is alleged ; And these defendants further say they have been in- suna should formed and believe it to be true that such indenture of assignment remain on jj^ ^j^g Complainant's bill mentioned to bear date the 17th March mortgage of a ,„,^, '^ , . t n i t -i n- particular es- lo21 between Such parties, and ot such date purport and ettect as m tate. the said complainant's original and amended bill mentioned and set Admit the forth SO far as the same is therein set forth was duly made and exe- execution of a q^j^qA ^nd that the several title-deeds and writings relating to the deed of assign- .,' , ■ t ^ ■ -i ■ i % ■, . ° ment to the said estate were together with the said indenture oi demise or mort- plaintiff, gage delivered over to the said complainant by the said W. P. at the and that the time of the execution of the said indenture of assignment as in the deeds were gg^j^j complainant's original and amended bill of complaint is alleged, QGilVCrGQ over • •• O' to the plain- but whether the same title-deeds and writings are not now in the tiff by w. p., custody Or power of the said complainant or what is become thereof but cannot these defendants do not know and cannot set forth as to their or state what is either of their belief or otherwise ; And these defendants further them • severally answering say they have been informed and believe it to Admit the he true that the said testator T. B. departed this life at the time in deathof T. E., the said complainant's original and amended bill stated having first and his will, duly made and published his last will and testament in writing of such date purport and effect as therein in that behalf mentioned and set forth so far as the same is therein set forth, but these defendants (31) See note (i), antea, p. 563. ANSWERS. 601 for greatei- certainty crave leave to refer to the *said will or the pro- [ *602 J bate copy thereof when the same or either of them shall be produced ; And these defendants further say they believe it to be true that the and that he said testator left T. E. jun. another defendant to the said complain- Jfe'/^t^i'a^'^ ant's original and amended bill of complaint his eldest son and heir ' at law, and that F. B. and R. U. therein also named have renounced that F. b. and the devise made to them by the said testator's will, and have duly R-U. have re- executed a deed renouncing and disclaiming the same, and that the devise to them said testator's real estates have descended upon and are now vested and disclaim- in the said defendant T. E. as his eldest son and heir at law as in the ^^' ^nd that said complainant's original and amended bill is alleged ; And these iiave'^descend- defendants further say they have been informed and believe it to be ed upon T. E. true that the said sum of £400 was not paid to the said W. P. or to Admitthatthe the said complainant at 'the time in the said complainant's original 40o;. was not and amended bill mentioned, and that the same or some part thereof Rf^'l' !°„ * ^^ together with some arrear ot interest thereon is now due and owing some part to the said complainant, but what principal money and interest in with interest particular these defendants do not know and cannot set forth as to clnnot"state"* their or either of their belief or otherwise ; And these defendants 1,0-nr much. admit that by the means in the said complainant's original and Admit that amended bill stated the said mortgaged premises became absolute in the premises law in the said complainant, and these defendants submit to the judg- have become ment of this honorable court whether the said defendant T. E. ought Ja-^ in the not to pay to the said complainant what shall be found to be due and plaintiff, owing to him for principal-money and interest, and whether for the Submit whe- reasons hereinafter stated the said complainant ought to be permitted ^^^^^' ^' to have or enjoy the said mortgaged premises ; And these defendants paf the plain- further say that they or either of them to the knowledge or belief of tiff what is the other of them do not know have never been informed save by the *^°^ '° ''"°- said complainant's bill, and therefore cannot set forth as to their or Do not know either of their belief or otherwise whether the said complainant hath plications be- or not made or caused such applications and requests to be made to ing made to the said defendant T. E. as therein stated or set forth or any other "^^ ®- applications and requests, nor whether the said defendant T. E. doth or not absolutely refuse to comply therewith, nor whether the said defendant T. E. doth or not make such pretences as therein stated ; And these defendants deny that the said mortgaged premises are at Deny that the all a scanty security for the principal and interest due to the said premises are complainant ; And these defendants further severally answering say f^iy^"^ ^ "^''^ that by an indenture of demise by way of mortgage bearing date gjate the exe- the day of 1813 and made between the said testator T. cution of a E. of the one part, and R. P. then of, &c. since deceased of the other mortgage by part. It is witnessed that in consideration of the sum of £800 ster- rp g ^^ ^ p ling money therein expressed to be paid to the said T. B. by the for securing said R. P. and which was in fact so paid and the receipt whereof '^"^i. ; the said T. E. did thereby acknowledge, he the said T. E. did grant bargain sell and demise unto the said R. P. his executors admin- istrators and assigns. All that, &c. To hold the same unto the said R. P. his executors administrators and assigns from the day of the date thereof for the term of 900 years from thence next ensuing and fully to be complete and ended, subject nevertheless to the pro- 602 ANSWERS. [ *603 ] That default ■vras made in payment, that R. P. died, having made a will and ap- pointed the defendants executrix and executor, and that they proved the same ; that T. E. paid to them iOOL, part of the 800?., with all arrears of in- terest, and that the executrix of T. E. paid inte- rest to 1820. Statement of the amount due for princi- pal and inte- rest, that at the time of the execution of his mortgage R. P. insisted upon having the deeds de- livered up to him, which T. E. promised to do, but after- wards refused. Deny that any fraud was In- tended in not having the deeds deliver- ed up, or that they were left for the pur- pose of impos- ing on the viso in the said indenture contained for redemption of the same *premises and making void the said terra of 900 years, on payment by the said T. E. his heirs executors administrators or assigns unto the said R. P. his executors administrators or assigns of the sum of SOOl. with lawful interest for the same at or upon the day of 1814 ; As by the said indenture now in the possession of these defendants and to which they crave leave to refer for greater certainty as to the tenor and contents thereof when produced will appear ; And these defendants further say that default was made in payment by the said T. E. of the said sum of 800^. and interest at the time in the said indenture mentioned for payment thereof, whereby the said estate and premises became vested absolute at law in the s:iid R. P. for all the then residue of the said term of 900 years therein ; And these defendants further- say that the said R. P. departed this life on the day of having previously duly made and published his last will and testament in writing bearing date the day of 1812 and thereby appointed them these defendants executrix and executor thereof, and that on the day of 1818 they these defendants duly proved the same in the Consistory Court of the diocese of H. and are thereby become the legal personal representatives of the said R. P. deceased as to the term and premises ; And these defendants further say that the said T. E. did on the day of pay to these defendants as such executrix and executor as aforesaid the sum of 400Z. part of the said principal sum of 800Z. so due and owing to the said R. P. de- ceased together with the arrears of interest thereon, and that M. F. E. the executrix of the said T. E. deceased did after the decease of the said T. E. duly pay or cause to be paid unto these defendants all arrears of interest upon the remaining sum of iQOl. up to the day of 1820 j And these defendants further say that there now remains due and owing to them as such executrix and executor as aforesaid upon or by virtue of the said indenture of mortgage of the of 1813 the principal sum of 400Z. together with the sum of 1, for interest thereon at the rate of 51. per cent, per annum from the said 3d day of August 1820 ; And these defendants further say they have been informed and believe it to be true that at the time of the execution of the said indenture of mortgage bearing date the 3d day of February 1813, the said testator R. P. insisted upon having the title-deeds and writings relating to the said estate called Little C. delivered over to him, and the said testator T. E. pretend- ing that the same were not then in his possession promised to deliver them up in a few days, but that he neglected to fulfil such promise and refused at any time afterwards to deliver them up' when requested so to do by the said R. P. ; And these defendants deny that any fraud was ever intended by the said R. P. in not having such title- deeds and writings delivered up to him, or that the same were so left in the hands of the said testator T. E. for the purpose of im- posing upon the said complainant, or any other person, or of per- mitting the said testator T. E. to obtain any further sums of money on the security of the said premises ; And these defendants submit to the judgment of this honorable court whether they as the legal ANSWERS. 603 personal representatives of the said testator R. P. are not for the plaintiff, or reasons aforesaid entitled to the said estate and premises *called permitting T. Little C, and to have the said principal and interest so due to them [ *604 ] as aforesaid paid in preference to the said complainant ; Or in case E. to obtain this honorable court shall be of opinion that the said complainant is fu^'iier sums, i',i T 1 • . 1 ■ 11 ■ 1 .1 n ina submit entitled to the said mortgaged premises and to be paid all arrears oi whether the principal and interest in preference to these defendants by reason of defendants are the title-deeds being delivered over to him by the said testator T. E., ^°' entitled to and which these defendants allege was a fraud by the said T. E. tbe^ plaintiff, upon the said R. P., whether they ought not to be permitted to orifnot redeem the said complainant, and to have possession of the said whether thej mortgaged premises and of the title-deeds and writing relating thereto °^g^^ iiot to delivered up to them in case the said defendant T. E. shall make to^-edeemhim. default in payment to the said complainant at the time to be ap- pointed by this honorable court : And these defendants deny, &c. \_see sect. IV. antea, p. 569.] XXI. Answer to a bill for tithes by a vicar against the occupier of an ancient farm; the defendant asserting that the farm was -part of a dissolved abbey which came into the hands of the Crown in the reign of Henry the 8th, and was from time immemorial held exempt from great tithes ; that some of the small tithes were covered by moduses, and that agistment tithe was never paid,{S2) and submitting to account for what is due in respect of other small tithes. [For the title, see form No. 1, antea, p. 563.) This defendant, &c. [see form No. 1, antea, p. 565,] saith he doth -g^^o-wi not not know or believe that the vicar for the time being of the vicarage whether the and parish church of M. T. in the county of Y., hath at any time ""=*'' ^^ ^"H- been entitled to have and receive to his own use the tithes both great ^^^^ greatand and small of the several titheable matters and things from time to small, except time arising growing increasing and renewing within the said vicarage '^s appears and the titheable places thereof, except as in the said bill excepted, g"^™ ^^^ ^'^" or other than as hereinafter is mentioned, so far as applies to the farm and lands which are occupied by this defendant. Saith he believes it to be true, that the said vicarage became vacant Admits that by the death of the preceding incumbent at or about the time in the the vicarage said bill mentioned ; and that the plaintiff was shortly afterwards became va- duly and lawfully presented instituted and inducted into the vicarage „. ' , and parish church of M. T. aforesaid, and that he might soon after plaintiff was his induction duly qualify*himself to act and officiate as vicar thereof, duly institu- and that he hath ever since acted and officiated, and now acts and ^^"^ '''j*^ ''^", officiates in the cure of the said vicarage, and that he may be well s(J!3Vafterduly entitled to have take and receive to his own use from the death of qualified him- the last incumbent, all such tithes and payments in lieu of tithes, as self, and that his predecessors the former vicars of the said parish were lawfully en- ^ all^su'ch^ (32) See Baichellor v. Smallcombe, 3 Madd. Rep. 12, 21. •=605 ANSWERS. tithes as for- mer vicars were entitled to. Admits that defendant oc- cupies an an- cient farm. Saith that the same was par- cel of a dis- solved abbey and came into the hands of King Henry VIII. And believes that from time immemorial the same was held by the abbey dis- charged of all great tithes, and is now discharged therefrom. Saith that from time im- memorial the several mod- uses stated have been payable to the vicar in lieu of some of the small tithes. Believes that he is entitled to receive all other small tithes except agistment. [ *606 ] ^titled to have take and receive Tvitliin the said parish and the tithe- able places thereof. Saith he admits it to be true that from and since the day of this defendant hath held and occupied and still holds and occu- pies within the said vicarage and the titheable places thereof, a cer- tain ancient farm called or known by the name of C. G. farm, con- sisting of a farm-house and out-buildings and acres of land or thereabouts. Saith that the said ancient farm was at the time of the dissolution of the late dissolved abbey of F. in the county of Y. and from time to time and all times from time whereof the memory of man is not to the contrary had been parcel of the said late dissolved abbey, and with the rest of the possessions of the said late dissolved abbey, which was one of the greater abbeys, and had possessions of the value of 1, a year, was given and surrendered unto and came into the hands of his late Majesty King Henry VIII. under and by virtue of the act of parliament made and passed in the 31st year of the reign of his said late Majesty, intituled " An act for the dissolution of monasteries and abbeys." And this defendant believes that from time to time and at all time from time whereof the memory of man is not to the contrary, down to and at the time of the dissolution of the said late dissolved abbey of F. the said ancient farm was holden and occupied by the said late dissolved abbey discharged and ac- quitted of and from the payment of all great tithes ; and that by means thereof and by force of the said late act of parliament passed in the 31st year of the reign of his said late Majesty King Henry VIII. the said ancient farm continued to be and hath ever since the passing of the said last-mentioned act of parliament been and now is discharged and acquitted from the payment of all great tithes. Saith that from time whereof the memory of man is not to the contrary there hath been paid and payable and of right ought to be paid to the vicar for the time being of the said vicarage and parish of M. T. aforesaid by the occupier or occupiers for the time being of the said ancient farm, the several moduses hereinafter stated ; (that is to say,) yearly at the sum of for every milch cow ; and the sum of for every gelt cow kept and fed upon the said an- cient farm, in lieu of the tithe of milk ; and also at the sum of for every foal yielded and brought forth upon the said ancient farm, in lieu of the tithe of foals ; and also at j- the sum of for every hive of bees kept on the said ancient farm, in lieu of the tithe of honey and bees'-wax ; and also at the sum of for every person in the family of such occupier or occupiers who did or ought to receive the holy communion, in lieu of Easter offerings ; and on day the sum of for every householder on the said ancient farm, in lieu of the tithe of poultry and eggs. Believes that the vicar for the time being is entitled to have and receive in kind all other the small tithes (except the tithes of agist- ment) arising growing renewing and increasing in and upon the said ancient farm. Saith he admits it to be true that he hath since the said day *of , grown cut and carried from off the said ancientfarm, consider- ANSWERS. 606 able quantities of wheat barley oats beans and other grain and hay Admita that without setting out the tithe thereof or making any satisfaction to ^^^^^ grown the plaintiff for the same or any part thereof, inasmuch as for the Without set- reasons aforesaid no tithe was due to the plaintiff in respect thereof, ting out the the same being great tithes ; and defendant for the same reason hath tithes, the not herein set forth an account of such corn grain or hay. ^i^^"i'5?«i/i ci*T-i -1 IP I'TPT ' 1 ' being entitled. baitn that m the month ot this defendant paid to the g^^^-^ jj^^j ^^ agent of the said plaintiff the sum of 1, in full satisfaction for paid the tithe all small tithes and moduses in lieu of such tithes due to the said agent all small plaintiff up to : and the said then accepted the said sum ^^^^f^ ^°'' , „ n 7,1 PI •TT../V.-P11-P • pii modnses, yrho 01 1. on the part ot the said plaintiff, in lull satisiaction oi all gave a receipt such small tithes and moduses up to , and gave this defendant for the same. a receipt for the same as for one year's tithes due to the said plaintiff at then last. Saith that the pasture lands of his said farm consists of acres Statesthepar- or thereabouts of the yearly value of per acre, as he computed ticuiars of his the same, and that from to there was bred upon his said tuhcabie mat- farm calves, pigs, and geese, and that fleeces ters not cover- of wool of the value of or thereabouts are due to the plaintiff ^^ ^y ™°'i- for or in respect of the tithe of wool arising on the said farm during "^^^' the same period, but that no lambs were bred thereon. Saith that he had growing upon his said farm in that year acres of turnips which he computed to be of the value of 1, or thereabouts, and that from the middle of the month of to the middle of the month of in the said year , he depastured upon his said farm two years old heifers and two years old steers, together also with sheep. Saith that to the best of his recollection and belief he had not be- tween and , growing renewing arising or increasing upon his said farm and lands in his occupation in the said parish of M. T. or the titheable places thereof, any tithcable matters or things, except as aforesaid. Saith that he l»elieves that none of the vicars of the said parish Believes that ever received any tithe of agistment within the said parish, or any none of the vi- satisfaction for the same ; and he therefore submits and humbly in- ce[ved'agi^st- sists that the vicars of the said parish are not entitled to any tithe ment tithe, of agistment arising within upon or from his said ancient farm, or any and submits satisfaction for the same. Uff^il'^n'ot^elT-" Saith that he hath not since the day of had more than titled thereto. persons in his family for whom Easter offerings were or are states in re- payable and that he paid ani rendered to the Rev. the curate spectof whom and agent of the plaintiff, th« Easter offerings which were due at ?^ster ofifer- D -i .*^'^_, o, , ings were pay- Easter , Jiaster , and Easter , as the same became able, and that due and payable, and that by the immemorial usage and custom of the same were the said parish only is due from each such person yearly for P^^'^- Easter offerings. Saith that he is and at all times hith been ready and desirous to ac- Submits to ac- count for and pay to the plaintiff Viha.t is due to him for the tithes ?a°^f/°„ 7e^-''' arising upon or from or due or payasle in respect of his said farm, spectof tithes. •=607 ANSWERS. Admit that plaintiff is seised of the impropriate rectory, but cannot state from what period, nor whether he is entitled to receive any tithes or cus- tomary pay- ments. Admit the act of parliament, and the decree as set forth in the bill. Admit that they are oc- cupiers and owners of vari- ons buildings for their ser- vants. Say that they being owners do not hold under any rent, believe that their buildings stand upon the site of an- cient messu- ages, and that [ *608 ] *XXII. Answer of the East India Company to a bill ly a lay impro- priator, claiming tithes or customary payments in lieu of tithes in respect of warehouses, ^c. held or occupied hy the defendants, they denying his right thereto. {^21) These defendants, &c. [see form No. 2, p. 565,] say they have heard and believe that the said plaintiff is now seised of or entitled to the impropriate rectory of in the said bill mentioned, but how long he hath been seised of or entitled to the said rectory, or whether or not from the year or from any other time, defend- ants know not nor can any how set forth, nor do they know nor can they set forth, save as after-mentioned, whether or not plair^tiff as such impropriator or impropriate rector or otherwise, is or not now or hath not since the said year or any other time, been enti- tled to have receive or enjoy for his own use any tithes rites for tithes sums or customary payments or other duties in lieu of tithes, for the houses shops warehouses cellars stables and other luildings of the citizens and inhabitants of that part of the said parish which lies within the city of L. and the liberties thereof as in the lill stated or otherwise. Admit that such act of parliament as in the bill mentioned was made and passed in the reign of his late Majesty King Henry Till., and that such decree as in the bill set forth was made in pursuance of the said act of parliament, though defendants for greater certainty as to particular contents of said act and of said decree, crave leave to refer thereto when produced to this honorable court. Admit that they have ever since the year occupied and do now occupy and are the owners of several stacks of warehouses and dwelling-houses for their warehouse-keepers and servants and waste ground, situate in or near Gr. L. and H. A., all vhich are in that part of the said parish of , which is within said city of L., and was built by defendants. Say that having built and they themselves beipg the owners of said warehouses and dwelling-houses they do not now nor ever did hold the same or any part thereof under any yearly or other rent or for any consideration in the nature or in lieu of rent nor hath any yearly or other rent or any consideration in the nature or in lieu of rent at any time been paid for the said warehousiss dwelling-houses or ground, though defendants say they do apprelend and believe that certain dwelling-houses or some edifices or Vuildings were formerly erected and did stand upon the site of or up/>n the same pieces or parcels of land or ground on which defendant*' said warehouses and dwelling- houses have been since erected or built and do now stand as afore- said, and that some *yearly or otler rents or payment in the nature (33) This appears to be the answer vhich was filed in Anlrobus r. The Hast India Company, reported 13 Ves. p. 9 ; the decree was made in the plaintifiPs favor for the payment of the tithes at the rate of 2s'9d. in the pound upon the annual value of the premises held or occupied by the defrtidants; and in note (54), 2d edit, the decree is stated to have been affirmed by the Jfouse of Lords. ANSWERS. 608 of rents were reserved or made payable for or in respect of such some rents dwelling-houses or other edifices and buildings or the ground on which ■n^ere formerly the same stood, but they are unable to set forth as to their knowledge fhJhouses" or otherwise what such rents or payments were or whetheu they were being occu- paid or not, except that they say they have always understood or P'^<^ ^y poor believed and do now understand or believe that such houses or build- neve°that'no ings were inhabited or occupied by persons of very low descriptions rents ever and necessitous circumstances, and therefore not likely to pay or were paid. make good any rents or payments whatever in respect thereof. Say they do not now inhabit or occupy nor have they inhabited Say they do or occupied since the said year or during any part of that time ^°^ ini^abit t • t Di/Jr EIDV llOUSGS any messuages or dwelling-houses warehouses yards sheds wharfs ^^^ gave as' quays stables or other edifices buildings and premises situate within aforesaid, that part of the said rectory and parish which is in the city of L. or the liberties thereof save as aforesaid. Say they are advised and humbly insist that plaintiff as the lay Insist that impropriator of said parish or rectory is not entitled under or by plaintiff as lay virtue either of the act of parliament or the decree in bill mentioned i™not^e"titied or otherwise to any tithes or yearly or other payments in the nature to any tithes or in lieu of tithes for or in respect of the said warehouses and dwel- or "ti'er pay- ling-houses of defendants or any of them inasmuch as they have also ™^°'^- been advised and do conceive that said act of parliament and the said decree were both made with a. view to the clergy of L. and not to lay impropriators and there is not any custom to warrant the demand of any such tithes or payments in lieu thereof. Admit that having been so advised they have not paid but on the Admit that contrary have refused to pay any sums or sum of money to plaintiff ^J^^jJ^^'^^ ro- •/ jt ±*/ illSGQ. to T)3iV or to any person for his use since the year for or in respect of plaintiff since tithes or dues for these defendants' said warehouses and dwelling- they have in- houses or any of them, save and except that certain of their said vestigated as warehouses having been built previous to the year and plaintiff ^^^^ "|g. having in the month of in that year made a demand to be paid mand, and tithes thereon at the rate of in the pound on the yearly sum of submit that £ such being as defendants believe the sum the said warehouses ^^ich'theT ^ were rated as to the land-tax, and defendants not having sufiiciently made previ- investigated the right of plaintiff to make such demand, defendants ously were did then submit to make such payment to plaintiff and they have ™^'^® "^ *'i.^''^ ^l^^c^ °^° Wrong, continued to make the same up to last ; but they do tor tne and that they reasons aforesaid insist that such payment hath been made in their are not bound own wrong and through ignorance of their own rights and are there- *° continue fore not bound to continue the same for the future. (34) (34) From the report in 13 Ves. p. 18, 19, it should seem that part of this answer was omitted in the former edition of this work. *609 ANSWERS. *XXIII, Jinswer to a hill by a rector and Ms lessee for arrears of tithes — three of the defendants had carried on the business of brew- ers in partnership, which was dissolved as to one, and another de- fendant admitted a partner; {the other defendant occupying a house and garden as their clerk ;) the defendants admit the plain- tiff's title, and set forth the accounts required as far as they are able, but insist upon a composition which had been paid annually in lieu of tithes as binding upon the plaintiffs. A supplemental answer was afterwards filed by three of the de- fendants by leave of the court, to explain and correct several mis- takes made in setting out the accounts; (vide postea, p. 615.) The joint and several answer of W. P. T., J. S., E. W., R. T. and W. H. defendants, to the bill of com- plaint of the Rev. F. W. B. clerk, and 0. E. complain- ants. Admit that Y. These defendants, kc.'^see form No. 2, p. 565,] severally answering W.B. was duly say they admit it to be true that the said complainant F. W. B. was at inducted^ and ^^ ^^^^^ the time in the said- bill in that behalf mentioned duly and is now the lawfully presented and instituted and inducted to and into the rectory rector, and as and parish church of S. M. in the said bill mentioned, and that he has rector entitled gygp gince been and is now the true and lawful rector thereof and great and t^** ^^ ^^^^ rector he became entitled to all the tithes both great small; and small of the several titheable matters and things growing renew- ing arising or increasing within the said rectory and parish and the admit that a titheable places thereof; And these defendants further severally an- lease of the swering Say they do not know of their own knowledge, but they have *ranted ^b F teard and believe it to be true that in or about the month of May W. B.to C.E., 1813 the said complainant F. W. B. did duly demise to the said com- plainant 0. E. the several tithes arising within the said rectory or parish for the term of fourteen years from the 25th of March 1813 if the said complainant F. W. B. should so long live and continue rector of the said parish, and that in or about the month of June thatsuchlease 1818 the Said alleged lease was surrendered by the said complain- was after- ant C. E. to the said complainant F. W. B., and that the said last- d Tlf anTa"' ^^^^"^ Complainant did thereupon duly grant another lease of the new lease Said tithes of the said complainant C. E. for the term of twenty-one granted, years from the 25th of March 1818 if the complainant F. W. B. which IS still giioui(j go long live and continue rector of the said parish, and that ^d ^"tth^th ®^*'^ last-mentioned lease is still subsisting ; And these defendants defendants W. further severally answering say they admit it to be true that in and P. T., J. S., previously tp the said year 1818 these defendants W. P. T., J. S. and E. w. oc- ^nd E. W. did hold and 6ccupy a certain farm and lands hereinafter and'lands un- mentioned within the said rectory and parish or the titheable places til October, thereof in copartnership, and that they did continue from thenceforth 1820, when E. go to occupy the Said farm and lands until the month of October, and^'the de- ^^^O, and that this defendant E. W. did then retire from the said ANSWERS. 609 copartnership and cease to occupy the said farm and lands, *and that [ *610 ] upon this defendant E. W.'s retiring from the said concern this de- fendant R. T. fendant R. T. was admitted a partner in the said concern in the place 'was admitted of this defendant E. W., and that these defendants W. P. T., J. S. ^ P^^'"^"^' and R. T. did from thenceforth hold and occupy the said farm and lands in copartnership together, and that the said farm and lands that the farm were previously to and until the latter end of the year 1813, fifty- '^"'^ '^°'^^ seven acres two roods and thirty perches, exclusive of plantations isTs/fifty- and buildings, but including the gardens occupied by the defendants seven acres, as herein stated ; and in the latter end of the year 1813 these defend- two roods, and ants W. P. T., J. S. and E. W. purchased an additional piece of land ^^^en a^ddi?'' whereby the whole of their titheable land was increased to sixty- tional land seven acres and eighteen perches, but the said quantity was reduced ^^^ purohas- within the last two years by new plantations and several large ponds ; ^^ ' And these defendants W. P. T., J. S., E. W. and R. T. further sever- g-^'eeTdnced ally answering say they deny that they these defendants or any or by plantations either of them had during the respective times in the said com- and ponds ; plainant's bill in that behalf stated growing upon and took from off ^^°J having the said farm and lands divers or any quantities of wheat barley and graki^clo^e'r oats and other corn and grain, and that they or any or either of them and grasses, ' had in each year during the time aforesaid growing upon and have taken off the said farm and lands divers or any quantities of wheat barley and oats and other corn and grain or divers or any quantities of clover and other artificial grasses, but these defendants admit except grass that they have had during the time aforesaid divers quantities of mown and grass which they mowed and made into hay ; And these defendants ^^^f '"*° severally deny that they did in any or either of the years of such ^^^^ having their respective occupations enter upon and take from off the said cut wood and farms and lands divers or any quantities of wood and under-wood under-wood excepting for the purpose of repairing the fencfes upon the said ^^j^P* ^^""^ ^''' farm ; And these defendants severally deny that they or any or either ^ having of them had growing upon and did take from off their said lands in grown turnips, any or either of such years divers or any quantities of turnips and potatoes, or potatoes flax hemp cole seed mustard seed turnip seed or other kinds ^^^^^; of seeds ; And these defendants admit that they had respectively in admit having each of such years upon their said farm and lands such milch cows had cows, as hereinafter stated which produced great quantities of milk, and such number of cows which have produced such calves as hereinafter stated, but these defendants deny that during the period aforesaid }>"* ^eny hav- they or any or either of them have or hath had in their said farm o°^mares^pro- and lands any sows or any mares* which have produced colts or a ducing young, colt excepting in the year 1821 when they had a mare which produced ezceptin]82i, one colt only ; And these defendants deny that they or any or either '"^^'^ °'\^ ^°^ „ 1 1 1 I 1 • -If -11 1 • wasproducea; 01 them have or hatn during the period aforesaid kept upon their ^ having said farm and lands any sheep or any ewes which have produced kept any lambs, excepting that in the latter end of the year 1820 they kept sheep, except about one hundred ewes, which last year produced about one hun- ^?- ^^u^lj^^^"^ dred lambs only, and which ewes were duly shorn in the year 1821, hundred ewes but about sixty-two only of the said ewes were shorn in the year which pro- 1820, and such ewes produced such quantities of wool as hereinafter ^^'^'f °°® stated ; And these defendants deny that they or any or either of ja'^bs! 610 ANSWERS. Deny haying them have or hath had upon their said farm and lands during the had turkies, pgrjod aforesaid any turkies ducks geese or other fowls ; And these r *fi1 1 1 *<^^f6°'^'iJi*s further severally answering say that during the period L "-'--'- J aforesaid they respectively occupied part of the aforesaid lands as of th^rand*^' gardens for their own private use which produced them vegetables was occupied and fruit for their families, but believing and fully understanding as gardens that the said complainant C. B. had accepted and taken a composition Ted^ve etaWe' ^^^ ^^^ ^^^ titheable matters and things arising growing and increasing for th?ir femi- ^V°^ ^^^^^ Said farm and lands these defendants did not keep any ac- lies, of which count of the vegetables and fruit growing upon the same as aforesaid, they kept no ^nd they are totally unable to set forth any account thereof ; and account; ^-^^^^ defendants deny that they or any or either of them did in each agisted^barren o^" either of such years agist and depasture upon the said farm and cattle, except lands any barren and unprofitable horses mares geldings bullocks as after stated, oxen steers sheep or other barren and unprofitable cattle excepting Say that they ^s hereinafter stated ; And these defendants say that during the period trade^of'brew- °f ^^^^^ Occupation of the said farm and lands as herein stated, they ers, and for have carried on the trade or business of brewers, and for the pur- the purposes poses of their said trade have kept from sixteen to eighteen horses in hm-ses^wMch ^^^^ J®^^' ^^'' *^^ whole of such horses were kept in the stable and were kept in fed on hay, excepting when any of them were sick, when these de- the stable ex- fendants caused such horses to be turned out and depastured for a sickwhralhe ^^^ ^^^^ ^^^y^' ^^^ *''^^®® defendants cannot otherwise than as herein were turned stated set forth the number of their said horses so depastured, or any out and de- further particulars relative thereto ; And these defendants deny that pastured ; ^jjgy qj. g^^j qj, either of them have or hath had in any or either of had^ '^^^ tlf ^^^^ years growing upon and have taken from ofi" their said farm and titheable mat- lands any other titheable matters and things than as hereinbefore ters; Stated; And the_se defendants W. P. T., J. S., B. W. and R. T. Admission by further severally answering say they admit it to be true that these In'tsthft three ^^efendants W. P. T., J. S. andE. W. did previously to the year 1813 of them did lip convert into a garden, and did from the said month of May 1813 up to 1820 occu- to the month of October 1820 occupy as a garden certain lands py as a garden ^lyithin the Said rectory or parish adjoining to a dwelling-house oc- and that e! ' cupied by this defendant B. W. as one of the partners in the said W., but not first-mentioned copartnership, but such garden formed part of the the other de- farm and lands aforesaid, and that this defendant B. W. but neither therrfromgTr-'^f *^^®^ ^^^^^ defendants did during the time aforesaid have and den stuff and take from off the said last-mentioned lands divers quantities of garden fruit ; stuff and fruit as hereinafter stated ; And these defendants W. P. T., Admission by J. g. and R. T. further severally answering say they admit it to antrthatTh^ey ^® ^^^^ *^** ^^^y these defendants have from the said month of by their tra- October 1820 to the present time, and do now occupy by means of veller, the de- the Said Other defendant W. H. their traveller and clerk the said hTv^e^occT'ifd ^°"^^ ^^^ garden, and that the said defendant W. H. hath but since 1820 the neither of these other defendants have from the said month of Oc- same garden, tober 1820 taken upon and from off the said last-mentioned lands andthatw.H. divers quantities of garden stuff and fruit; And these defendants garden stuff severally deny that they or any or either of them have or hath and fruit ; during the time in the said bill mentioned converted into garden Deny that ground any land within the said rectory or parish other than such ANSWERS. 611 land as herein particularly mentioned ; And these defendants W. they have P. T., J. S., E. W. and R. T. further severally answering say XTifuV'' *they deny that they or any or either of them have or hath in any or into garden either of the years from the said month of March 1813 to the pre- ground; sent time held and occupied or do now hold and occupy divers or any [ *612 ] lands contiguous or near to the said last-mentioned lands or else- or that they where within the said rectory or parish of S. M. aforesaid, or the lia^e occupied titheable places thereof, or any lands in any other parish ; And this °^ do occupy J „ . IT, TT c 1 '■ ■ 1 1 1 • ■ 1 1 1 ^'^y other aetendant VV . H. further answermg saith he admits it to be true that he lands ; this defendant as the traveller and clerk of the said other defendants Admission by W. P. T., J. S. and R. T. hath ever since the month of October w. ii. that he 1820 held and occupied and doth now hold and occupy the herein- gaiT^ar'den^ before-mentioned garden situate within the said rectory or parish or and took ' the titheable places thereof, and that he hath, in each year of such his therefrom occupation had growing upon and has taken from ofi" the said lands S^^^f^ .^*"ff divers quantities of garden stuif and fruit, which the defendant con- -^fhich were sumed in his family, but this defendant never kept any account consumed in thereof, and therefore cannot set forth any particulars thereof or re- ^^^ °^J^ ^^^^' lative thereto; And all these defendants further severally answering ^{^^^ ^^ ^c- say they admit it to be true that the tithes of the several titheable count was matters and things in the said complainant's bill mentioned as afore- ^^P^- said, if the same had been duly set out and rendered to the said com- Admit that • • the tithes of plainant C. E. would have been of considerable value, but of what ^^^^ several value these defendants for the reasons aforesaid cannot set forth ; titheable mat- And these defendants further severally answering say they admit it ^^''^ aforesaid, to be true that they these defendants did not nor did any or either ^q^j J ^^l"^ ' of them set out the whole of such tithes to the said complainant 0. been ofconsi- E., and that they have respectively converted the whole of such derabie value ; tithes during the period, and according to the respective occupations Admit that of the said lands by these defendants as aforesaid to their own use gg^^^j ^■^° for the reasons hereinafter stated ; And this defendant W. H. whole of such admits it to be true that he hath never made any compensation tithes and for the tithes aforesaid possessed by him or for any_ or either of ^erte*the'^°'^' them, by reason that he this defendant having occupied the said game to their garden as aforesaid as the clerk of the said other defendants, he oWnusejW. this defendant considered and believed that the said other defend- ^- ^^'"^ '^?* _,^ -r^ rn f r~t TTimiT 1 ,• ,■ he, occupving ants W. p. T., d. S., and R. T. had made a compensation or satis- the garden as faction for such tithes to the said 0. E. ; And these defendants clerk to the W. P. T., J. S., E. W. and R. T. further severally answering othe'' ^f^^^^'^ say they admit it to be true that they do respectively allege that tj^^t' they had they have and they do severally insist that they have duly made madecompen- a compensation or satisfaction to the said complainant C. E. for all sation; and every the tithes of the several titheable matters and things ^^^l^^^^^^' arising and growing and taken by these defendants respectively lege and insist from off the said farm and lands occupied by them within the said that they have rectory and parish or the titheable places thereof, and including duly made all the said garden, up to the 25th day of March 1821, for these ^^1°" defendants severally say that in the year 1813 these defendants up to March, W. P. T., J. S. and E. W. understanding and believing that the i82i, said complainant 0. E. had rented the tithes of the said rectory and say that or parish from the said complainant F. W. B., applied to the said beiievingC.E. 612 ANSWERS. had rented the 0. E. to know what he demanded by way of compensation or satis- tithes, they faction for the aforesaid tithes, when the said 0. E. proposed to hfmtopayhim these defendants to take and accept the sum of 11?. by even half- ui. for one *yearly payments by way of compensation or satisfaction for their year, which gaid tithes from the 25th day of March 1813 to the 25th day of ^r^*fiiQT •'^^'^^^ 1814, and these defendants having agreed thereto accord- L "1^ J ingly paid the said C. E. the said sum of 111. by equal half-yearly payments ; And these defendants W. P. T., J. S. and B. W. having A small addi- afterwards made a small addition to the land in their occupation tiou having -vY^ithin the said parish or the titheable places thereof, the said C. E. ?heir ™uds^ '° himself proposed to and demanded of these defendants the sum of the composi- 13Z. lOs. as a composition or satisfaction for all and every the tithes tion was in- of the Several titheable matters and things arising growing and taken creased to 131. ^ ^y^^^ ^^.^^ ^^ ^^ ^^^^ Occupied by thera within the said rectory lOs., ana con- '' i-i,iTi'^r.ci • tinned to be and parish or the titheable places thereoi tor the year commencing paid to Mich- from the 25th day of March 1814 to the 25th day of March 1815, aelmas, 1820, ^^^^ these defendants having agreed thereto accordingly paid the said C. E. the said sum of ISl. 10s. by equal half-yearly payments, and these defendants duly paid the said sum of 13?. 10s. yearly and every year to the said C. E. as a compensation and satisfaction for all and every the tithes of the several titheable matters and things arising growing and taken by them respectively from off the said lands oc- cupied by them or any or either of them (and including all the said gardens) within the said rectory and parish or the titheable places thereof, from the said 25th day of March 1814 to Michaelmas 1820, excepting for excepting that on Lady-day 1815 these defendants only paid the sum one half-year, of 3?. 15s. for the half year's tithe due and payable on that day in when the t^- consequence of these defendants having in that .half year let off con- by persons to siderable part of the lands previously and subsequently occupied by ■*hom the them as aforesaid to divers other persons who paid the tithe thereof lands had ^j^g proportion of which was settled and arranged by the said com- Pa ment plainant C. E.; And these defendants W. P. T., J. S. and R. T. made of one further Severally answering say that having commenced partnership half-year's in the month of October 1820 as aforesaid, they these defendants composition ^uly paid to the said C. E. the sum of 51. 15s. as a compensation 1821. ^^^ satisfaction for their tithes as aforesaid for the half year com- mencing Michaelmas 1820 to Lady-day 1821, including the tithes arising from the said garden occupied by the said other defendant W. H. as their clerk as aforesaid and on Michaelmas-day 1821 these Tender made defendants by their solicitor tendered the sum of 61. 15s. to the said at Michaelmas c. E. for their previous half year's tithe commencing at Lady-day half-year's 1821 up to Michaelmas-day 1821, when the said C. B. refused to re- amount, ceive the same, but did not at that time or previously or subse- whichC.E.re- quently thereto give these defendants or any or either of them any ^f,?t i!,'!t'^!^„= notice whatever of his intention, or that they were to consider the cept, out give .- ^ ' ..^ .p.«, no intimation Said annual payment by way of compensation or satisfaction for the that the com- tithes as at an end ; And all these defendants further severally an- to be^conTS^ swering say they deny that the said complainants or either of them dered as at an have or hath frequently or at any times or time made such or the end. like applications and requests to these defendants or to any or either Deny applica- of them as in the said complainant's bill in that behalf stated in ANSWERS. 613 respect of the matters therein stated, although these defendants tions being severally admit that the said complainant C. B. hath written several made as stated letters to these defendants demanding a large sum of money for pre- though they " tended arrears *of tithes, but which these defendants refused to pay, admit that C. considering the aforesaid composition paid to the said 0. E. to be in ^- ^'■o*'' se- lieu of all tithes payable by them in respect of the lands occupied by cilTmin "farge them respectively within the said rectory and parish or the titheable arrears of place thereof, and that thereupon they were not bound to render to tithes. him any account or any further payments as demanded by him in and [ *614 ] by such letters; And these defendants further severally answering ^^mit that say they admit it to be true that they have never entered into any they have not agreement or composition with the said complainants or either of ^"tered into them in respect of the tithes or any of them arising from the said ^^^ wittfthe lands situate within the said rectory or parish of S. M. aforesaid or plaintiffs for any of them from the 25th of March 1823, or otherwise than as afore- ^^^ tithes from said, but which payments or composition for tithes these defendants March*i823 severally submit and insist are binding upon the said complainants re- than as before spectively, and that the said complainants or either of them are or is not stated, but in- entitled to any further payment or account in respect of the tithes pa*ments''^* aforesaid during the period aforesaid from these defendants or any made are or either of them; And these defendants further severally answer- binding on the ing say they admit it to be true that the lands in the said complain- Plaintiffs ; ant's bill in that behalf mentioned are respectively situate within the •'^'^fl' ^^^\ ., •icoiTir T • 1 -111 certain lands said parish oi b. M. and not in any other parish, and that they these are situate in defendants are as hereinbefore stated the owners and occupiers of the parish of such lands : And these defendants W. P. T., J. S., E. W. and R. T. fj^edefendants severally answering say that they have in the schedule to this their are owners answer annexed, and which they pray may be taken as part thereof, and occupiers set forth according to the best of their judgment and belief a full thereof. true and particular account of all and singular the quantities of hay I'^eference to a which they have respectively had taken and received on or from oif an account of their said respective lands in each of the years aforesaid, or in any certain tithe- ** and which of them, and of the value thereof in each.of such years, ^^^^ matters; and also a like account of the number of milch cows which they re- spectively kept on their said lands or any part thereof in each of such years, and of the quantities of milk produced by such cows in each of such years, and also a like account of the number of cows which they respectively had on their said lands or any part thereof in each of such years, and of the numbers of calves produced thereby in each of such years, and also a like account of the numbers of sheep shorn by them or any or either of them on their said lands in each of such years, and of the quantities of wool produced thereby ; And Denythatthey these defendants severally deny for the reasons aforesaid that they liave withheld or any or either of them have or hath during the period in the said any"tithes*of complainant's bill and hereinbefore mentioned, withheld or subtract- the matters ed from the said complainants any of the tithes of the several tithe- aforesaid, and able matters aforesaid, and submit and insist that they are not liable a°e noUiablT to account to the said complainants or either of them for any of such to account. tithes, or to pay to them or either of them any sum or sums of money in respect thereof; And these defendants severally deny, &c. [see sect. IV. antea, p. 569.] *615 ANSWERS. **XXIV. Supplemental answer filed by leave of the court to explain and correct mistakes made hy three defendants in a former an- swer put in hy them jointly with other defendants to a bill hy a rector and his lessee for arrears of tithes; {vide antea, p. 609.) {For the title, see form No. 10, p. 564.) These defendants now and at all times hereafter saving and re- serving to themselves and each of them all and all manner of benefit or advantage of exception which can or may be had or taken to the many errors uncertainties and other imperfections in the said com- plainant's bill of complaint contained for supplemental answer there- to, or unto so much and such parts thereof as these defendants are advised is or are material or necessary for them or either of them to Say that by make any answer unto, these defendants severally answering say mistake they ^-^^^ jjy mistake in their said former answer they these defendants held any lands respectively stated that they denied that they or any or either of them contiguous to had in any or either of the years from the month of March 1813 to theiandsmen- j^jjg ^jjgn present time held and occupied or did then hold and occupy b'm^nd'say divers or any lands contiguous or near to the last-mentioned lands that in 1821 in the Said complainant's bill mentioned, or elsewhere within the they occupied rectory or parish of S. M. in the said bill mentioned or the titheable for Wie pu°-^ places thereof, or any lands in any other parish, for these defendants pose of feed- severally say that in the month of June 1821 they as copartners as in ing sheep. the said bill mentioned entered into the occupation of certain lands in the said parish of S. M. called T. and containing about twenty-six acres, for a temporary occupation only, and for the purpose of feeding w. P. T. saith, certain sheep then in their possession ; And this defendant W. P. T. and the other further answering saith, and these other defendants believe it to be **ntve"that hT' true, that this defendant W. P. T. hath in each and every of the years from March from the month of March 1819 to the present time held and occupied I8i9,;heldcer- and now holds and occupies individually certain lands and freehold tarn lands the property of his son the said R. T. within the said parish, and called proper yo 13 -^ containing about twelve acres, and that he the said defendant was and at the ^-Iso at the time of the filing of the said complainant's bill and had time of filing been for several years previously thereto in the occupation of fourteen the bill cer- qj, gfteen acres or thereabouts of land of his own freehold property lands" of^his ^"^ ^^ parish of A., which parish adjoins the said parish of S. M. and own ; which last-mentioned pieces of land are described in the title-deeds relating thereto as follows, (that is to say :) All that close, &c. &c. all which said closes and lands lie adjoining together, and are situate Saith that the lying and being in the parish of A. aforesaid ; And this defendant title deeds are "VV". P. T. saith that such title-deeds are not now in his custody or "rln'th" oth^r P°^^'" although the same lately were, nor are the same or any or defendants' either of them in the custody or power of the said other defendants possession. or of any or either of them; And these defendants further severally Say that pre- answering say they have been informed and believe it to be true that viousiy to Qjjg ^ ^_ .^^J^g the occupier of the said lands called T. for about [ *616 ] =i=ten years previously to Lady-day 1821, when he quitted the same AiNBWJaitib. 616 and that lie during his said occupation paid a composition of 21. 18s. I82i, A. A. a year by half-yearly payments of 11. 9s. to the said complainant occupied the C. E., in lieu and in satisfaction of all tithes arising from the said x^and'tbat lands called T. and that he duly paid the same up to Lady-day 1821 he paid a when he quitted the occupation of the said lands; and the said de- compositionin fendants say that they entered upon the occupation of the said last- ^'^" °^ *'""'^ ' naentioned lands in the month of June 1821 as aforesaid, and remained ^l^^^^^^^l Jh7 in the occupation thereof until Lady-day 1822 when they quitted same until the same, and J. D. the owner thereof entered into the possession and I822, and occupation of the said last-mentioned lands, and as these defendants d' whrbas"'' have been informed and believe it to be true has duly paid a half- continued to yearly composition of 11. 12s. 9d. in respect of the said lands, and pay the com- as a composition or satisfaction for the tithes thereof from Lady-day position ; 1822 aforesaid ; and these defendants severally admit that they have Admit that never paid any composition or satisfaction to the said complainants they paid no or either of them for the tithes arising from the said lands called T. composition during their occupation thereof as aforesaid, but severally say that thereof the the said complainants have not nor hath either of them made any de- plaintiff not mand upon these defendants or any or either of them in respect of having made the tithes of the said lands called T. or for any sum or sums of money ^°'' demand ; as and by way of a composition or satisfaction for the same ; And Admit that these defendants severally answering say they admit to be true that they never en- they have never entered into any agreement or composition with the a^™'^4°*nt^for said complainants or either of them in respect of the tithes or any of the same. them arising from their said lands called T. aforesaid or for any or either of them ; And these defendants further severally answering say Deny having they deny that these defendants or any or either of them had during grown wheat, the time of such their occupation of the said lands called T. grow- "' ing upon and took from off the said lands divers or any quantities [^deny having grown any wheat corn hay seeds, ^c.^c.;'] And this w. P. T. saith, defendant W. P. T. further answering saith he hath purchased the ^bat he pur- said lands called B. in the year 1818 for his son the said R. T. and i^'^ndgcaUedB. hath ever since been in the occupation thereof, and saith that on the and occupies tithe receipt day at or about Michaelmas 1819 to the best of his know- Ae same, and ledge remembrance and belief, he this defendant attended at the "^ \^\^ appii- a- CI •! !• l^ r\ f ^ c ..eOtO knOW omce 01 the said complainant (J. J!i. tor the purpose 01 ascertaining the amount of what sum of money was payable by him to the said C. E. as and by composition way of composition or satisfaction for his tithes growing renewing 7id°if^ir^^ and increasing upon his said lands called B. and that this defend- 3;; . that he ant was thereupon told that the amount of the composition of then paid one this defendant in respect of such tithes was the sum of 11. 12s. 6d. baif-year's payable by half-yearly payments, and that this defendant thereupon continued to paid to the said complainant 0. E. the sum of 16s. 8d. being the paysomeuntil first half-yearly payment or composition for this defendant's tithes Lady-day, of the said last-mentioned lands ; And this defendant saith that he ' duly and regularly by himself or some friend of his paid the said sum of 16s. Sd. to the said 0. E. as the half-yearly payment or composition of this defendant in respect of such last-mentioned tithes, yearly and every year from Lady-day 1819 until Lady-day 1821 ; And this defendant W. P. T. further answering saith he admits it Admits that *to be true that he doth allege and insist that he hath in manner r ^Qii n 44 617 ANSWERS. he alleges, and aforesaid duly made a composition or satisfaction to the said com- insists that he plainant C. E. for all and every the tithes of the several titheable composition Diatters and things arising growing and taken by this defendant W. for the tithes P. T. from off the said lands called B. occupied by him during the "^n^rt R°'^^ period aforesaid ; And this defendant W. P. T. further answering si'^t "' saith that he this defendant instructed his solicitor the late Mr. J. D. instructed his °° °^ ^^out Michaelmas 1821, to tender the sum of 16s. Sd. to the solicitor at Said C. E. for his previous half-yearly tithes of the said lands called Michaelmas B., commencing from Lady-day 1821 up to Michaelmas-day 1821, iteidlrt"the ^^^ ^^^^ defendant believes that the said Mr. J. D. did accordingly plaintiff c. E., tender the same to the said C. E. ; and this defendant saith that the believes that said 0. E. hath not at any time either previously or subsequently he did so, thereto given this defendant any notice whatever of his intention, or and saith that ^hat he this defendant was to consider the said annual payment by no notice has „ .. .„.„,.., „ t,'' •' been given to ^^J ot composition or Satisfaction tor his tithes aioresaid as at an determine the end ; And this defendant W. P. T. further answering saith he denies composition; ^}ja,t the Said complainants or either of them have or hath frequently cations b^in" °'" *'' ^^^ times or time made such or the like applications and re- made as stated quests to this defendant as in the said complainants' bill in that be- in the bill ; half Stated in respect of the matters therein stated, otherwise than and admits as in this defendant's former answer stated ; And this defendant W. that he never P. T. further answering saith he admits it to be true that he never anyagreement ^'^^^^ed into any agreement or composition with the said complain- with the plain- ants or either of them in respect of the tithes or any of them arising tiffs in respect from his Said land called B. situate within the said rectory or parish of S. thauls'lfore- ^' aforesaid or any of them from Lady-day 1819 otherwise than as said, but in- aforesaid, but which payments or composition for tithes this defend- sists upon the ant submits and insists are binding upon the said complainants res- payments pectively, and that the said complainants or either of them are or is made as bmd- -^ . . .•', j ^ p , ^ . ^ , ing ; lot entitled to any further payments or account in respect or the tithes aforesaid during the period aforesaid from this defendant; Penies having And this defendant W. P. T. further answering saith he denies that fa'ndL°caiie*d ^ ^^ ^**^ ^^^ during the respective times in the said complainant's bill in B. -wheat, &c., ^^^^ behalf stated, growing upon and took from off the said lands but admits called B. divers or any quantities of wheat barley and other corn ck)ver^and°^° and grain excepting oats as hereinafter stated, or had in each year grass made during the time aforeasaid, growing upon and had taken from off the into hay. Said lands divers or any quantities of wheat and other corn and grain excepting oats, but this defendant admits he hath had such quanti- ties of clover as hereinafter stated but no other artificial grasses, and that he hath had during the time aforesaid divers quantities of grass which he mowed and made into hay, and divers quantities of pota- toes turnips and parsnips ; And this defendant, &c. &c. ; And these defendants severally deny, &c. [see sect. IV. antea, p. 569.} ANSWERS. *618 *XXV. Further answer after exceptions taken and allowed to the def endant' s former answer to a hill for an account, and to restrain the infringement of a copyright. {For the form of title, refer to p. 564.) This defendant saving and reserving to himself, as in and by his former answer to the said complainant's said bill of complaint was saved and reserved, for further answer thereto, or unto so much thereof as this defendant is advised is material or necessary for him Admits that to make answer unto, answereth and saith he admits it to be true '^ehasbyhim- that this defendant hath by the defendants T. N. L. and R. 0. and ggi^ ^any by other booksellers employed by him, published and sold many copies of the copies of the edition of published by this defendant as in '^°'^^ > his former answer mentioned ; and that the number of such copies ^^^ stating sold by him amounts in the whole to or thereabouts as nearly such copies ^ as this defendant can set forth the same to his knowledge or belief; Denies that he but this defendant denies that he is now proceeding or threatens to is continuing proceed in publishing and selling the said book, having discontinued *® P"l'lioa- the sale thereof, as in this defendant's former answer mentioned ; „ .' And this defendant further answering saith that the profit which he amoui^ 0/ hath made by such publication doth not exceed the sum of £ to profit, and ad- the best of this defendant's knowledge and belief, and this defend- ™itt"^g that ant admits that he hath applied the produce and profits of the said ^^^ same^o* publication to his own use ; And this defendant saith that he printed his own use; and published copies of the said book or work and no more, and stating the that he hath sold copies, and that there now remain — - — copies ii^mber of in his own custody or power or in the custody or power of other per- and^ ae'^num- sons by his order or for his use as nearly as he can set forth the said ber sold and several particulars as to his knowledge information or belief; and '■^'°^i=^i'ig"°- this defendant hath in a schedule to this his further answer annexed ^° , ' „ or under- written and which he prays may be taken as part thereof, ^^ ^ schTdSe set forth to the best of his knowledge remembrance information and for an account belief, a just and true account of all the sums of money which have "f ^^^ moneys arisen by the publication and sale of the said book and the profits pabu^atbn'^ which have arisen therefrom. and the profits J. L. arisen there- from. XXVI. Answer of a trustee submitting to act as the court shall di- rect. This defendant, &c. [see form No. 1, p. 665,] admits it to be true Admits the that such indentures of lease and release as in the said bill of com- execution of plaint are stated to bear date , were duly made and executed settUmen^^^ by and between such parties and to such purport or efl"ect as are therein set forth so far as the same are therein set forth ; but for *his greater certainty nevertheless this defendant craves leave to [ *619 ] 619 ANSWERS AND DISCLAIMERS. the solemniza- tion of the marriage, the birth of the children, that he de- clines to act and is desir- ous of being discharged, offering to convey on being indem- nified and paid his costs. refer to the said indentures when produced ; And this defendant further answering saith he admits it to be true that the intended marriage between the said complainants J. P. and E. P. was soon afterwards had and solemnized, and that the said other complainants {the children) are the only children of the said marriage ; And this defendant admits that he doth decline to act in the trusts of the said settlement, and that he is desirous of being discharged therefrom, and that he is ready to convey and release the said trust premises to the said complainant S. M. M. and such new trustee as may be appointed by this honorable court on being indemnified in that behalf and paid all his costs and expenses. XXVII. Conclusion of an answer insisting that plaintiff's remedy is at law and not in equity, and claiming the same benefit as if the defendant had demurred to the bill. And this defendant submits to this honorable court that all and every the matters in the said complainant's bill mentioned and com- plained of, are matters which may be tried and determined at law, and with respect to which the said complainant is not entitled to any relief from a court of equity, and this defendant hopes he shall have the same benefit of this defence as if he had demurred to the said complainant's bill ; And this defendant denies, &c. ANSWERS AND DISCLAIMERS. (35) Admit the death of the testator, . his will ap- pointing the *XXVIII. Answer and disclaimer by the personal representatives of a mortgagee, relinquishing the security of the premises comprised in the plaintiff's mortgage. In Chancery. The joint and several answer and disclaimer of J. F. and R. C. two of the defendants to the original and amended bill of complaint of W. S., J. C, and T. P., complainants. These defendants, &c. [see form No. 2, p. 565,] say they admit that J. C. in the said bill named departed this life on the day of , having first duly made his last will and testament whereby he appointed his sons these defendants joint executors thereof, and that they these defendants proved the same in the Prerogative [ *620 ] *Court of the Archbishop of York on the day of , and (35) See Ld. Red. Tr. PI. p. 106, 318, 4th edit. ; 2 Madd. Ch. Pr. 336. ANSWERS AND DISCLAIMERS. 620 thereby became his legal personal representatives ; And these de- defendants fendants further severally answering say they do not claim any in- executors, and terest in the estates in the said bill stated to be charged with the 'ro'ed'ws annuities to the said complainants W. S. and J. 0. therein mentioned will, and with the mortgage therein also mentioned to be assigned to Say they do them ; And these defendants further severally answering say they ?ot <='»■'■? a°y do not object to the payment of what may be due to the said com- ^mtgesVo'^/ plainants out of the rents and profits of the said estates ; And these object to' the defendants do disclaim all right title and interest in and to the said payment of estates and every part thereof; and these defendants deny, &c. [see ^e'^'/aint^ffs" sect. IV. antea, p. 669.1 ^a^a^^V-^' ' J^ -1 and disclaim all right and interest in the estates. XXIX. Answer and disclaimer denying having ever claimed any right or interest in the premises, in the bill mentioned. Answer and disclaimer of A. B. the defendant to the bill of complaint of C. D. complainant. This defendant, &c. [see form No. 1, p. 565, J saith that he doth Denies that he not know that he this defendant to his knowledge or belief ever had ever claimed nor did he claim or pretend to have, nor doth he now claim any right ''"'! now dis- title or interest of in or to the estates and premises situate, &c. in right and in- the said complainant's bill set forth or any part thereof, and this de- terest in the fendant doth disclaim all right title and interest to the said estates premises. and premises and every part thereof ; And this defendant denies, &c. [see sect. IV. antea, p. 669.] XXX. Answer and disclaimer of a trustee under a will, denying having ever interfered in the trusts or received the rents of the trust-estates. The several answer and disclaimer of A. B. one of the defendants to the bill of complaint of L. M. com- plainant. This defendant, &c. [see form No. 1, p. 565,] answereth and saith Believes that that he believes that C. D. did die seised of such estates in as the testator in the said complainant's said bill are mentioned ; And this defendant "^'^^ seised of does believe that the said C. D. did make such last will and testa- tates ment in writing and did thereby create such trusts out of the said that he made estates and appointed this defendant trustee thereof in such awillappoint- manner and to such purport and effect as in the said complainant's J"S defendant said bill for that purpose set forth ; And this defendant does believe J^^^ ^'-^ that the said testator made E. F. gent, executor of his said will ; and cutor, *this defendant does believe that the said C. D. soon after making r *Q21 1 621 DEMURREES. that he died hia Said will departed this life, (that is to say :) on or ahout the soon after ^g^y. ^f ^ without revoking or altering his said will, seised of such estates" * estates in as in the said complainant's said bill are set forth ; And this defendant further saith that he was advised that the said trust would be attended with some difficulty besides expense and loss Saith that he of time to this defendant ; therefore this defendant absolutely refused f ^°^®^ *° 1°' to intermeddle therewith or in any way concern himself therein ; And termedQle m,.,_, ,.,,"''^ j-i,- the trusts, this defendant denies that he or any person or persons tor him denies having ever entered on the said trust estate, or ever received any of the rents ever entered a,iid profits thereof; but this defendant has been informed and be- s?onf blueves li^ves that the same were received by G. H. of, &c. gent, who was that 'the rents employed by the said testator C. D. in his life-time to receive the were received j-gnts and profits of the said estate for him the said C. D. ; And was^thf teltt- *^^^is defendant believes that the said G. H. hath received the said tor's receiver ; rents and profits of the said trust estate ever since the death of the and that he Said testator C. D. and doth still continue to receive the same ; And has continued ^}^\q defendant positively denies that the said Gr. H. had any power same'^^'^^ ^^^ °>" authority or direction from this defendant to receive all or any denies that he P^^"* ^^ ^he rents and profits of the said trust estate, or that he ever has any au- accounted to this defendant for the same ; and this defendant is very thority from desirous and ready to be discharged from his said trust and to do any the defendant, ^^^ ^^^ ^j^^^ purpose as this honorable court shall direct, this defend- rous 'of being ^nt being indemnified in so doing and having his costs; And this de- discharged, fendant further saith that as to so much of the said bill as seeks a Denies that he discovery of this defendant's title to the lands in , this defend- ever claimed, ant saith that he doth not know that he this defendant to his know- and doth dis- Jedge or belief ever had nor did he claim or pretend to have nor doth righTorTnter- ^^ ^°^ claim or pretend to have any right title or interest of in or est in the pre- to the said estate in in the said complainant's bill set forth or mises. any part thereof; and this defendant doth disclaim all right title and interest in and to the said estate in in the complainant's said bill mentioned and every part thereof ; And this defendant denies, &c. [see sect. IV. antea, p. 569.] [ *622 ] *CHAPTER X. DEMURRERS."' Whenever any ground of defence is apparent on the bill itself, either from matter contained in it, or from a defect in its frame, or in the * A bill may be demurred to for any objection apparent on its face ; but when not apparent on the bill, the proper mode is by plea or answer. Harris v. Thomas, 1 Hen. & M. 18 ; Sperry v. Miller, 2 Barb. Ch. R. 632. The demurrer must express the gronnds upon which it is founded ; Nash v. Smith, 6 Conn. 421 ; and it must be founded upon some point of law which goes to the absolute denial of the relief sought ; Verplank v. Caines, 1 Johns. C. R. 51 ; but a demurrer assigning for cause matters of fact not appearing in and differing from the allegations of the bill, is bad. Tallmadge v. Lovett, 3 Bdw. Ch. 563. So a demurrer assigning for cause new matter DEMURRERS. case made by it, the proper mode of defence is by demurrer. The causes upon demurrer are merely upon matter in the bill, or upon the omission of matter which ought to be therein or attendant thereon, and not upon any foreign matter alleged by the defendant. (1) (1) Ld. Red. Tr. PI. p. 107, 8, 4th edit. ; 2 Madd. Ch. Pr. 282. which forms part of the subject of defence, is bad. Saxon v. Barksdale, 4 Dessau. 522. If the defendant, after a general order for further time to answer, put in a de- murrer without special leave of court, it will be taken off the files for irregularity. BurrallY. Raineteaux, 2 Paige, C. R. 331 ; Davenport v. Sniffen, 1 Barb. 223 ; Lahens V. Fielden, 1 1 Paige, 644 ; Bedell v. Bedell, 2 Barb. Ch. R. 99. A demurrer for want of parties, must point out the necessary parties either by name or in some other manner, as to enable the plaintiff to amend by joining the proper parties. JDias v. Bouehaud, 10 Paige, C. R. 445 ; see also, Moore Y. Armstrong, 9 Porter, 697 ; Walford v. Phelps, 2 J. J. Marsh. 31 ; Smith v. Kornegay, 1 Jones, Eq. (N. C.) 40. Where a bill is good in part, though bad as to the residue, a general demurrer to the whole bill will be bad; Le Roy v. Veeder, 1 Johns. C. 417 ; Laight v. Morgan, lb. 429; and a demurrer bad in part is bad in toto ; Verplanh ¥. Caines, 1 Johns. C. R. 57 ; Le Fori v. Delafield, 3 Edw. Ch. 32 ; Thompson v. Mwbin, 3 Ired. Ch. 338 ; Russell Y. Lanier, 4 Hey. 289 ; see also, Kimberly v. Sells, 3 Johns. 0. R. 467 ; Barna- well Y. Threadgill, 5 Ired. Bq. 86; see Burns v. Hobbs, 29 Maine, (16 Shep.) 273; and if a bill for discovery and relief be good as to the discovery, a general demurrer to the whole bill is bad ; Livingston v. Livingston, 4 Johns. C. R. 294 ; Higinbotham v. Burnet, 5 Id. 184; Parsons v. Brown, 7 Paige, C. R. 351; but where the discovery is merely incidental to the relief, a demurrer good to the relief, is good to the discovery also. Sanza v. Belcher, 3 Edw. Ch. 117; see also, Le Roy v. Servis, 1 C. C. E. 3. When a bill in equity seeks relief, which the court has no power to grant, and also seeks a discovery, the defendant may demur to the whole bill, if it do not aver that a suit at law is pending, or is about to be brought, in which a discovery may be ma- terial; Mitchell V. Green, 10 Met. 101 ; but where a complainant is entitled to an an- swer to some part of his bill for a discovery and relief, a general demurrer to the whole bill will be overruled. McLaren v. Steapp, 1 Kelly, 376 ; see also. Beach v. Beach, 11 Paige, 161; Stuyvesant v. Mayor, ^c, of New York, lb. 414. A defendant cannot, by demurrer to a bill, rely on the Statute of Frauds, unless it clearly appear on the face of the bill that the agreement is within the statute. If he claims the benefit of the statute, he must insist upon it in his answer, or set it up by way of plea. Surtser v. Skiles, 3 Oilman, 629 ; Caldwell v. Montgomery, 8 Geo. 106. A party who claims to be a purchaser without notice, should set up his defence by answer or plea, and not by demurrer to a bill filed against the sale. Scudder v. Van Amburgh, 4 Edw. Ch. 29. And where a person is wrongly made a party to a bill in equity, one not affected thereby cannot demur on that ground. Crosby v. Berger, 4 Edw. Ch. 210. Where complainant relies on an acknowledgment and registration of a deed, a failure to exhibit a certified copy thereof, is a good ground of demurrer. Brodie v. Skelton, 6 Eng. 120. A reservation by a defendant, in his answer to the sufSciency of a bill for want of equity, has the effect of a demurrer. Lovett v. Long- more, 14 Ark. (1 Barb.) 339. Where the statute prescribes the specific relief that shall be granted, and the complainant prays for specific relief of a different kind, and does not pray for general relief, a demurrer will not be sustained. Hipp v. JJuchett, 4 Texas, 20. Where a demurrer to a bill is overruled, the defendant should have reasonable time to answer, if requested; Lefavour y . justice, 5 Blackf 366; the order should be, that the defendant answer the bill, and if he neglect to do so, the bill may be taken as confessed. Miller v. Davidson, 3 Gilman, 518; Cole County v. Angney, 12 Mis. 132. Nor is a bill in chancery necessarily put out of court because a demurrer to it is sustained; Fleece y. Russell, 13 111. 31; but if the defendant, after demurrer, enter into an agreement of the facts of the case, and formally submits that the court shall render judgment upon those facts, it is a waiver of his demurrer. Roach y. Gardner, 9 Gratt. (Va.) 89. On a demurrer to a bill, a defendant is not confined to the causes of demurrer assigned in it, but may insist ore tenus on others. Vanhorn T. Duckworth, 7 Ired. Bq. 261 ; see also, Caldwell v. Blackwood, I Jones, Eq. (N. C.) 274. If any part of the matter covered by a demurrer is also covered by a plea or answer, the whole demurrer is overruled by such plea or answer ; Jarvis v. Palmer, 11 Paige, 650 ; but a demurrer in part to a bill, followed by an answer as to the rest, is not thus overruled. See Pierpont v. Fowle, 2 W. & M. 23. 622 622 DEMUEKERS. A demurrer is always in bar and goes to the merits of the case ;(2) whatever the bill represents as fact must be generally takeij to be true by the demurrer ; but not what the bill states as inference from matter of law.(3) A defendant cannot demur and plead or demur and answer to the same matter, for the answer will overrule the demurrer ; and a demurrer to relief is overruled by an answer to the facts, or parts of the bill, in respect of which relief is prayed. (4) A demurrer if good to the relief prayed by a bill is good also to the discovery sought for the purpose of the relief ;(5) the defendant however may waive the benefit of the rule as against himself, and may demur to the relief and yet answer as to the discovery ;(6) but he can- not answer the discovery in part, and demur to part, nor can he demur to discovery only and not to the relief prayed, because the plaintiff may be entitled to relief without being entitled to it through the discovery, and may then obtain a decree, though he has not established his right by the defendant's answer. (7) Where the demurrer extends to relief to which the plaintiff is entitled it will be bad, though there is some relief prayed to which the plain- tiff is not entitled. (8) A demurrer (unlike a plea) cannot be good in part and bad in part;(9) if however several defendants join in a [ *623 ] *demurrer, it may be good as to some of them and bad as to the others.(lO) A defendant may put in separate demurrers to separate and dis- tinct parts of a bill, for separate and distinct causes ; for the same grounds of demurrer frequently will not apply to different parts of a bill, though the whole may be liable to demurrer ; and in such case one demurrer may be overruled upon argument, and another allowed. A demurrer must express the several causes of demurrer ; and in case the demurrer does not go to the whole bill, it must clearly ex- press the particular parts of the bill demurred to. (11) It is not a proper way of demurring to say that the defendant answers to such and such facts, and demurs to all the rest of the bill ; the defendant ought to demur specifying precisely what it is that he refuses to an- swer,(12) and this must not be done hy way of exception, as by de- murring to all except certain parts of the bill. (13) A demurrer ore tenus must be to that which the defendant has de- murred to on the record. If the cause of the demurrer on the record is not good, he may at the bar assign other cause, but he cannot de- (2) 1 Atk. 543. (3) 3 Mer. 503. (4) 2 Madd. Oh. Pr. 282, 3 ; Jones v. Earl of Strafford, 3 P. Wms. 80. (5) 1 Madd. Ch. Pr. 216. (6) Abraham v. Dodgson, 2 Atk. 156, 1; and note [p], p. 185, Ld. Red. Tr. PI. (7) Morgan v. Harris, 2 Bro. Ch. Ca. 124; Attorney-General v. Brown, 1 Swanst. 294; Waring vT Mackreth, Porr. 129, 136; 2 Madd. Ch. Pr. 286. (8) Todd V. Gee, IT Ves. 279, 2d edit. (9) Baker v. Pritchard, 2 Atk. 388 ; 2 Madd. Ch. Pr. 286. (10) 8 Ves. 403. (11) Ld. Red. Tr. PI. 213, 4, 4th edit.; and see note (A), ibid. (12) 2 Madd. Ch. Pr. 283. (13) Robinson v. Thompson, 2 Ves. & B. 118; Weatherhead t. Blackburn, ib. 121; but it seems that a demurrer to the whole bill, with an exception of "■ very small part may be good in point of form; Hicks v. Eaincock, 1 Cox's Ca. 41. DEMURRERS. 623 mur ore tenus upon a ground which he has not made the subject of demurrer on the record.(14) A speaking demurrer is bad ; as where by way of argument or in- ference the demurrer suggests a mafen'aZ/ac^ which is not to be found in the bill.(15) *I. A general demurrer for want of equity [where there is only one defendant.) In Chancery, The demurrer of P. 0. E., defendant, in the bill called F. E., to the bill of complaint of A. B. complainant. This defendant by protestation not confessing or acknowledging all or any of the matters and things in the said bill of complaint con- tained to be true in such manner and form as the same are therein and thereby set forth and alleged,(16) doth demur in law to the *said bill, and for cause of demurrer showeth that the said complain- [ *624 ] ant hath not by his said bill made such a case as entitles him in a court of equity to any discovery or relief from or against this defen- dant(17) touching the matters contained in the said bill or any of such matters ; [Or thus : And for cause of demurrer saith that it appears by the said complainants' own showing by their said bill of complaint that the said complainants are not entitled to the discovery or relief prayed by their said bill against this defendant ;(1 8)] Wherefore and for divers other good causes of demurrer appearing in the said bill of complaint this defendant doth demur to the said bill, and to all the matters and things therein contained, and prays the judgment of this honorable court whether he shall be compelled to make any further or other answer to the said bill, and he humbly prays to be hence dismissed with his reasonable costs in this behalf sustained. ri4) PiUs V. Short, 17 Ves. 215, 6, 2d edit. ; 2 Madd. Ch. Pr. 286. (15) See 2 Madd. Oh. Pr. 28Y ; Hdsell v. Buchanan, 2 Ves. jun. 83 ; Cawthorn v, Chalie, 2 Sim. & Stu. 129 ; Davies v. Williams, 1 Sim. 8. (16) If a demurrer is only to a part of the bill, (as where a discovery is sought of the defendant's title) insert the following form after the word 'alleged' : ' As to so much of the said bill as seeks that this defendant may answer and set forth whether, &c. or as seeks any discovery from this defendant whether, &c. {seiiing out the interrogatories'] this defendant doth demur In law, and for cause of demurrer showeth,' &o. (17) If the demurrer is only to a part of the bill, insert the following words after the word ' defendant.' ' As to the matters hereinbefore specified or any of such matters ; Wherefore,' &c. \_and conclude as in page 631, postea.] (18) See other forms of a demurrer by a defendant for want of equity, postea, p. 626, 7, 8. 624 DEMUKREBS. II. A general demurrer for want of equity {where there are several defendants.) In Chancery. The demurrer of D. D., J. D. and S. K. three of the defendants to the bill of complaint of S. S. com- plainant. These defendants by protestation not confessing or acknowledging all or any of the matters and things in the said complainant's bill contained to be true in such manner and form as the same are therein and thereby set forth and alleged, do demur to the said bill, and for cause of demurrer show that the said complainant has not by his said bill made such a case as entitles him in a court of equity to any dis- covery from these defendants respectively or any of them, or to any relief against them, as to the matters contained in the said bill or any of such matters, and that any discovery which can be made by these defendants or any of them touching the matters complained of in the said bill or any of them cannot be of any avail to the said complainant for any of the purposes for which a discovery is sought against these defendants by the said bill, nor entitle the said com- plainant to any relief in this court touching any of the matters therein complained of; Wherefore and for divers other good causes of demurrer appearing in the said bill these defendants do demur thereto, and they pray the judgment of this honorable court whether [ *625 ] *they or either of them shall be compelled to make any further or other answer to the said bill, and they humbly pray to be hence dis- missed with their reasonable costs in this behalf sustained. *III. Demurrer to so much of a hill as sought a discovery of title- deeds, for want of an affidavit heing annexed to the hill that the same were not in the plaintiff's custody or power.{19) The demurrer of, &c. This defendant by protestation, &c. [see form No. I. p. 623,] as to so much of the said bill as seeks a discovery of the marriage settle- ment of the late father and mother of the said complainant, and of the title-deeds and writings relating to the messuages lands and tenements in the said bill mentioned, and that the same may be de- livered up to the said complainant, this defendant doth demur in law, and for cause of demurrer showeth that no person or persons by the ancient and approved rule of this honorable court shall exhibit a bill (19) Ld. Red. Tr. PI. p. 54, 4th ed. ; Eook v. Dorman, 1 Sim. & Stu. 227 ; and see note (2), antea, p. 269. DEMUKRERS. 625 of complaint in this honorable court against any other person or persons for a discovery of deeds and writings belonging to such com- plainant, and upon which if in his possession he might have remedy at law and pray relief relating thereto, unless such complainant or complainants shall at the time of exhibiting such bill make affidavit that he she or they have not such deeds and writings so sought after in his her or their custody or power ; Wherefore and for that the said complainant hath not made affidavit of not having the deeds and writings in his custody or power so sought after by the said bill this defendant doth demur to such part of the said bill as aforesaid and humbly prays the judgment of this court whether he shall be compelled to make any further or other answer to such part of the said bill as is so demurred unto. *IV. Demurrer to a hill of interpleader, for want of the usual affidavit [ *626 ] that the plaintiff does not collude with any of the defendants. [20) The demurrer of, &c. This defendant by protestation, &c. [see form No. I. p. 623,J to the whole of the said bill doth demur, and for cause of demurrer showeth that although the said complainant's said bill is on the face thereof a bill of interpleader, and prays that this defendant and the other defendants thereto may interplead together concerning the matters therein mentioned, and may be restrained by injunction from proceeding at law against the said complainant touching such matters, yet the said complainant hath not annexed an affidavit to his said bill that he does not collude concerning such matters with any of the defendants thereto, which affidavit ought, according to the rules of this honorable court as this defendant is advised, to have been made and annexed to the said bill ; Wherefore, &c. {as in form No. I. p. 623.] *V. Demurrer to a hill of interpleader, i^l) for want of the necessary affidavit, and also for want of equity. The demurrer of, &c. This defendant by protestation, &c. [see form No. I. p. 623,] doth demur in law to the said bill, and for cause of demurrer showeth that (20) Ld. Red. Tr. PI. 143; 1 Madd. Ch. Pr. \1b. (21) The question in this cause was whether the bill was in fact a bill of inter- pleader I it was contended that it was not, the word " interplead" not being used in the bill ; the material part of the prayer was thus : " And that the said defendants may adjust and determine between themselves to whom," &c. ; the demurrer was allowed. 626 DEMURRERS. although the said complainant's said bill is upon the face thereof a bill of interpleader, yet the said complainant hath not annexed to his said bill an affidavit that he doth not collude concerning such matters with any of the defendants thereto, which affidavit ought, according to the rules of this court, as this defendant is advised, to have been made by the said complainant; and annexed to the said bill; And for further cause of demurrer this defendant further showeth that the said bill does not contain sufficient matter of equity whereupon this court can ground any decree in favor of the said complainant, or give the said complainant any relief against this defendant ; wherefore, &c. [as inform iVb. I. p. 623.] [ *627 ] **VI. Demurrer to a bill for the examination of witnesses de bene esse ; the Mil not alleging that an action has been commenced, or that there is any impediment to an action being brought, and an affidavit not being annexed to the bill.{22) The demurrer of, &c. This defendant by protestation, &c. [see form No. l.p. 623,] and for cause of demurrer showeth that the said complainant in and by his said bill claims to be entitled to the estates and premises therein mentioned, and the said complainant by his said bill prays that he may be at liberty to examine his witnesses, &c. yet the said complain- ant has not stated, nor does it appear in and by his said bill that any action at law has been commenced by him to establish his right, or that there was or is any impediment to any such action being brought by the said complainant, or that the several persons sought to be examined as witnesses or any of them are or is resident abroad, or are about to quit the kingdom, nor hath the said complainant by affidavit annexed to the said bill made oath that the several persons sought to be examined as witnesses or any of them are or is aged or infirm or any other circumstance which may render the, testimony in danger of being lost ; Wherefore, &c. [as inform No. I. p. 623.] *VII. Demurrer for multifariousness. {2S) The demurrer of, &c. This defendant by protestation, &c. [see form No. I. p. 623,] doth demur to the said bill, and for cause of demurrer showeth that it (22) See note (9), antea, p. 359; Phillips v. Careic, 1 P. Wms. 116, and note (z), ib. 6th ed. (23) Ld. Red. Tr. PI. 181 ; and note (S), ibid. ; Brookes v. Lord Whilworth, 1 Madd. Rep. 86, 88, and note [d], ibid.; Salvidge v. Hyde, 5 Madd. 138 ; S. C. on appeal, DEMUKREKS. 627 appears by the said bill that the same is exhibited against this de- fendant and J. H., J. C, T. S. and W. T. for several and distinct mat- ters and causes, in many whereof as appears by the said bill this defendant is not in any manner interested or concerned, by reason of which distinct matters the said plaintiff's said bill is drawn out to a considerable length, and this defendant is compelled to take a copy of the whole thereof, and by joining distinct matters ^together which [ *628 ] do not depend on each other in the said bill, the pleadings orders and proceedings will in the progress of the said suit be intricate and prolix, and this defendant put to unnecessary charges in taking copies of the same, although several parts thereof no way relate to or con- cern him ; for which reason and for divers other errors appearing in the said bill, this defendant doth deinur thereto, and he prays the judgment of this honorable court whether he shall be compelled to make any further or other answer to the said bill, and he humbly prays to be hence dismissed, with his reasonable costs in this behalf sustained. *VIII. Part of a demurrer for multifariousness to a hill against several purchasers of parts of an estate.{24:) And for cause of demurrer showeth that the said bill is exhibited against this defendant and twenty other persons as defendants thereto for several and distinct and independent matters and causes which have no relation to each other, and wherein or in the greater part whereof this defendant is in no way interested or concerned, and ought not to be implicated. *IX. Demurrer for want of equity and also for multifariousness to a bill for discovery and for a commission to examine witnesses abroad in relation to two actions at law commenced against the plaintiff in equity. (25) The demurrer of, &c. This defendant by protestation, &c. \_seeform JVo. I. p. 623,] and for cause of demurrer showeth that the said complainants have not in and by their said bill shown any right or title to the discovery, or to the commission and injunction thereby sought; and for further 1 Jac. R. 151. In Raynsr v. Julian, 2 Dick. 677, a demurrer to a bill " for that it was multifarious" was orerruled as informal. An objection for multifariousness must be taken by demurrer, and cannot be made at the hearing of the cause; Ward y. Cooke, 5 Madd. 122; Wynne- v. Callander, 1 Buss, 293, 1. (24) See the authorities referred to in the preceding note. (25) See Shackell v. Macauley, 2 Sim. & Stu. 79; Thorpe v. Macauley, 5 Madd. 218 ; and see also 5 MadH. p. 146. 628 DBMUEKERS. cause of demurrer this defendant showeth that the discovery and commission by the said bill sought, relate to several distinct matters by the said bill alleged to have been pleaded by the said complain- ants to two several and distinct actions at law in the said bill alleged to have been commenced by this defendant against the said com- plainants, and which two several actions appear by the said bill to relate to several and distinct matters and to be founded on several and distinct causes of action, and such several and distinct matters so pleaded by the said complainants to the said two several actions ought not to have been joined together in one bill : Wherefore and for other good causes of demurrer apparent in the said bill, &c. [as in form No. I. p. 623.] [ *629 ] **X. Demurrer for want of farties to a bill by a creditor of a testator who had died dbroad.iiQ) The demurrer of, &c. These defendants by protestation, &c. {see form No. II. p. 624,J do demur to the said bill, and for cause of demurrer show that it ap- pears by the said complainant's said bill that a personal representa- tive of Robert Stewart the testator therein named, resident within the jurisdiction of the court, is a necessary party to the said bill, and yet that there is no personal representative of the said testator resi- dent within the jurisdiction of the court a party to the said bill : Wherefore, &c. [as inform No. II. p. 624.] XI. Demurrer for want of parties. The demurrer of, &c. These defendants by protestation, &c. [see form No. II. p. 624,] do demur to the said bill, and for cause of demurrer show that it ap- pears by the said complainant's own showing in the said bill, that J. S. therein named is a necessary party to the said bill, inasmuch as it is therein stated, that N. M. the testator in the said bill named, did in his life-time by certain conveyances made to the said J. S. in con- (26) Ld. Red. Tr. PI. 180, 4th ed. and note (s), ibid. ; Lowe v. Fairlie, 2 Madd. Rep. 101. The demurrer need not point out the parties by name; it is sufficient if it points out who the individuals are by some description enabling the plaintiff to make them parties ; 2 Madd. Ch. Pr. 293, 4 | and see Pyle v. Price, 6 Ves. 180, 1 ; and 11 Vee. 369. Semble, such demurrer should be to the whole bill ; see JEast India Company v. Coles, reported in note to Blackburn v. Jepson, 3 Swanst. 142, 3. DEMXJKRERS. 629 sideration of L, convey to him by way of mortgage certain estates in the said bill mentioned to have been devised for the purpose of paying the said testator's said debts and legacies, but yet the said complainant has not made the said J. S. a party to the said bill : Wherefore, &c. [as in farm No. II. p. 624.] *XII. Demurrer to bo much of a hill as sought a discovery of waste *630 ] committed ly the defendant, the plaintiff not having waived hy his hill all penalties and forfeitures.^^!) The demurrer of, &c. This defendant by protestation, &c. [see form No. l.p. 623,] as to so much and such part of the said bill as seeks to have discovery from this defendant of any timber or young timber trees in the said bill suggested to have been since the death of Sir J. T. bart. this defend- ant's late father deceased in the said bill mentioned, felled or cut down on the estate in the said bill mentioned or any part thereof, by this defendant, or by his directions, or as seeks to have any discovery of all or any sum or sums of money for which the same or any part thereof were or was sold by this defendant, doth demur, and for cause of demurrer showeth that by the known and settled rules of this honorable court no person ought to be compelled to set forth or dis- cover any matter or thing which doth or may subject him to any pains penalties or forfeitures whatsoever ; and therefore as the said discovery sought by the said complainant's said bill doth and may by the known law of this kingdom subject and make this defendant liable to several pains penalties and forfeitures, and which the said complainant hath not in and by his said bill waived as is usual in cases of the like nature to do, this defendant doth^demur in law to so much and such parts of the said bill as pray the aforesaid discovery, and humbly demands the judgment of this honorable court whether he ought to be compelled to make any further or other answer than as aforesaid to such parts of the said bill as he hath so demurred unto. (27) See Ld. Red. Tr. PL 19Y, 4th ed. ; Madd. Ch. Pr. vol. i. p. 214, vol. il. p. 290. 630 DEMURRERS. XIII. Demurrer to so much of a bill as sought a discovery which might subject the defendants to a charge of compounding a felony, (28) — accompanied by an answer to the other parts of the bill. The demurrer of the defendants C. D., Gr. H. and E. his wife to part, and their answer to other part of the bill of complaint of A. B. complainant. As to so much of the complainant's bill as seeks to charge these [ *631 ] *defendants or any of them with the concealing or compounding the felony in the bill mentioned, or as seeks to compel any of these de- fendants to make any discovery touching the same or any of the matters relating thereto in the said bill suggested or alleged, these defendants by protestation not confessing or acknowledging any of the matters or things relating thereto in the said bill comprised, to be true in such sort manner and form as the same are therein alleged or set forth, these defendants do demur, and for cause of demurrer show that they ought not to be compelled to discover or set forth any matters whereby they may impeach or accuse themselves of an offence or crime for which they may subject themselves to fine or to corporal punishment ; Wherefore and for divers other good causes of demurrer in the complainant's said bill of his own showing appearing, these defendants as to so much of the complainant's said bill as before is set forth do demur, and do demand the judgment of this honorable court whether they or any of them ought or shall be compelled to make any answer thereto other or otherwise than as aforesaid ; and these defendants not waiving their said demurrer but wholly relying and insisting thereon, for answer to so much of the said bills as these defendants are advised is material or necessary for them or any of them to make answer unto, severally answering say they deny, &c. XIV. Demurrer on the ground that the plaintiff does not appear by the bill to have proved the will of his testator.{29) The demurrer of, &c. These defendant by protestation, &c. [see form No. II. p. 624, j do demur to the said bill, and for cause of demurrer show that the scope and end of the said complainants' bill is to be relieved touching several sums of money by the said bill supposed to be due from these defendants to one A. B., deceased in the said bill named, which the said complainants would or seek by their said bill to claim as exe- (28) See 1 Madd. Ch. Pr. 214; Claridge t. Hoare, 14 Ves. 59; Oarlwrightv. Green, 8 Ves. 405, 2d edit. (29) See Ld. Red. Tr. PI. 155, 4th ed. DKMURREKS. 631 cutors to the said A. B., and yet they have not alleged in or by their said bill that they have proved the will of the said A. B. (if any such was made) or otherwise taken upon themselves the burthen or exe- cution thereof, or any ways entitled themselves unto her personal estate and to sue for the same : Wherefore, &c. [as in form No. 11. p. 624.] **XV. Demurrer on the ground that the plaintiff had not proved Ms [ *632 ] testator's will in the proper Ucclesiastical Court.{SO) The demurrer of, &c. This defendant by protestation, &c. \_seeform No. I. p. 623,] doth demur to the said bill, and for cause of demurrer showeth that accord- ing to the complainant's own showing in his said bill of complaint it appears that C. R. the testator in the said bill named died possessed of bona notabilia out of the diocese of the Bishop of Chichester, and particularly of bona notabilia in the diocese of the Bishop of London which is in the province of the see of Canterbury, and that it appears by the said complainant's said bill that the said complainant hath proved the said testator's will in the said bill mentioned in the Con- sistory Court of the Bishop of Chichester only : Wherefore, &c. [as inform No. l.p. 623.] XVI. Demurrer by the wife and committee of the person of a lunatic, to so much of a bill as sought to perpetuate the testimony of wit- nesses to the alleged will of the lunatic,(2i\) accompanied by her Answer to the other parts of the bill. The several demurrer and answer of B. C. wife of T. C. a lunatic, one of the defendants to the bill of com- plaint of S. E. complainant. This defendant by protestation, &c. [see form No. l.p. 623,] as to so much of the said bill as seeks to have the witnesses to the alleged will of the said T. C. this defendant's said husband examined and their testimony recorded in this honorable court in order to the perpetuating thereof, this defendant doth demur, and for cause of demurrer showeth that the said T. C. at the time of the exhibiting of the said bill was and still is living, and that the witnesses to the said alleged will of the said T. C. ought not to be examined to prove the same nor ought their tes- timony to be recorded during the life of the said T. C, and for that the (30) See Comber's Case, \ P. "Wms. Y66; Tourton v. Flower, 8 P. Wms. 310, 6th ed. (31) See Ld. Red. Tr. PI. p. 156 : Sackwell r. Ayleworlh, 1 Vern. 105 ; 6 Ves. 259, 260. 45 632 DEMURRER, PLEA AND ANSWER. said complainant hath any right or title by or under the said will until the said T. O.'s death : Wherefore and for divers other errors and imperfections good causes of demurrers appearing in the said bill this defendant doth demur to such parts of the said bill as aforesaid ; [ *633 ] *And as to the residue of the said bill this defendant not waiving her said demurrer but relying thereon, and saving and reserving to herself all and all manner of benefit and advantage of exception that can or may be had or taken to the many errors uncertainties and in- sufficiencies in such residue of the said bill contained, doth answer and say she hath heard and believes it to be true that the said T. C. did several years ago but when exactly this defendant cannot set forth, become disordered in his mind and hath ever since been and still is incapable of managing himself or his afi"airs, and that the said complainant did on or about the day of prefer a peti- tion to the then Lord High Chancellor of Great Britain praying that a commission might issue to inquire of the lunacy of the said T. C. ; And this defendant further answering saith that a commission issued accordingly, and that such inquisition was taken thereon as in the said bill is for that purpose mentioned and set forth, and that the said T. C. doth still continue and is a lunatic ; but this defendant for greater certainty craves leave to refer to the records of the said commission and inquisition; And this defendant further saith she admits it to be true that after the said T. C. was found a lunatic as aforesaid, the care and custody of his person was committed to this , defendant, and the care and management of his estate was committed to W. 0. in the said bill named, and that the said T. C. her husband is still living : And this defendant doth deny all manner of combi- nation and confederacy in the said bill charged, and humbly prays to be hence dismissed with her reasonable costs and charges in this behalf sustained. *XVII. Demurrer as to so much of the discovery and relief sought by the hill tvith respect to certain part of the premises therein men- tioned, that the plaintiff ' s remedy is at law ;{?t2) and with respect to other part of the premises, that he has shown no other title thereto ; and Plea in bar as to so much of the hill as sought to set aside the conveyance of other part of the premises, of the indentures of conveyance hy lease and release for a valuable consideration, supported hy an answer denying fraud or any undue influence hav- ing been used. In Chancery. The demurrer, plea, and answer of A. F. one of the defendants to the bill of complaint of J. B. complain- ant. This defendant by protestation, &c. [see form No. I. p. 623,] as (32) See Loka- v. Role, 3 Vea. •?, 2d edit. ; Crow v. Tyrrel, 3 Madd. 182 ; and note (1), antea, toI. i. p. 169. DEMURRER, PLEA AND ANSWER. 633 to SO much of the said bill as seeks to copapel this defendant to ac- count ■with the said complainant for the rents and profits of all or any of the estates therein mentioned (except of the premises in Mary Street therein alleged to have been purchased by T. R. one *of the [ *634] defendants to the said complainant's bill) received by her, or -which but for her wilful default she might have received, and also as to so much of the said bill as seeks to compel this defendant to deliver up to the said complainant or unto such person or persons as she should appoint the possession of all or any of the said estates and premises in the said bill mentioned (except of the said premises therein alleged to have been purchased by the said defendant T. R.,) and to so much of the said bill as seeks to compel this defendant to deliver up to the said complainant all and every the title-deeds evidences and writings in her custody "or power relating to all or any of the said estates and premises in the said bill mentioned (except the said premises therein alleged to have been purchased by the said T. R.,) this defendant doth demur thereto ; And this defendant as to the As to the dis- discovery and relief sought by the said bill (save so much thereof coTeryandre- as relates to the said premises therein alleged to have been pur- AaTe°imo\he chased by the said T. R., and so much thereof as relates to the premises pur- premises in the said bill mentioned to be situate at S. in the county chased by T. of D.,) for cause of demurrer showeth that the said complainant can rem?*^ ''^^t have an effectual and complete remedy in a court of law ; and for ate at S.,) further demurrer in this behalf this defendant as to so much of the for that plain- said discovery and relief as relates to the said premises in S. afore- tiffs remedy is said, for cause of demurrer saith that the said complainant hath not ^* ' by the said bill shown that he is entitled to the said estate and pre- ^^„„^Ll°;iQ mises at iS. or any part thereoi, or to the rents tnereot or oi any parts that plaintiff thereof, or to any of the title deeds evidences and writings relating has not shown thereto ; Wherefore and for divers other good causes of demurrer ap- ^f^*^'^! '^ !°T pearing in the said bill this defendant prays the judgment of this hon- ' orable court whether she shall be compelled to make any answer to such parts of the said bill as she has hereinbefore demurred to ; And this defendant not waiving her said several demurrers but wholly Plea in bar as relying thereon, doth as to so much of the said bill as seeks to have *° so much of the conveyance of the said premises therein mentioned to be situate seeks' toTet at the corner of Mary Street set aside as having been obtained by aside the con- undue means, and to have the same delivered up to the said complain- veyance of ant to be cancelled, and to compel this defendant to account with the f^^aitoTom- said complainant for the rents and profits of the said last-mentioned peithedefend- premises received by her, or which but for her wilful default she ant to account might have received, and also as to so much of the said bill as seeks ^°^^\^ T^i^e to compel this defendant to deliver up to the said complainant or unto up the posses- such person or persons as he should appoint the possession of all and siou of the singular the last-mentioned premises, and to deliver up to the said ^f^^'^t^jf"'^ complainant all and every the title-deeds evidences and writings in ^gg^g^ her custody or power relating thereto, pleads thereto, and for plea saith that by an indenture of bargain and sale bearing date the 10th of a convey- day of July in the year 1799, and made between the said complain- ^^^'^ ^J i^'^se ant and A. his wife of the one part, and the said defendant T. R. T^R.'^anrw." and W. F. in the said bill named of the other part, he the said com- F. in fee as 634 DBMURKBE, PLEA AND ANSWER. tenants in plainant and his said wife in consideration of the sum of 10s. to them common. therein mentioned to be then paid by the said T. R. and W. F. did bargain and sell the last-mentioned premises with the appurte- nances unto the said T. R. and W. F., To hold the same unto the [ *635 ] *said T. R. and W. F. their executors administrators and assigns from the day next before the day of the date of the same indenture for the term of one whole year from thence next ensuing ; And by a certain indenture of release bearing date the 17th day of the same month of July in the year 1799, and made between the said com- plainant and his said wife of the one part, and the said T. R. and W. F. of the other part ; after reciting (amongst other things) that disputes had arisen between the said complainant and the said T. R. and W. F. concerning the premises, for ending whereof the said T. R. and W. F. had agreed to give to the said complainant 1001. on condition that the said complainant and A. his wife would grant bargain sell release and confirm the said premises unto the said T. R. and W. F. their heirs and assigns, to which the said complainant had consented, he the said complainant and his said wife, in con- sideration of the sum of 100?. then to them paid by the said T. R. and W. F., did grant bargain sell release and confirm unto the said T. R. and W. F. and their heirs the said last-mentioned premises with the appurtenances. To hold the same unto the said T. R. and W. F. their heirs and assigns as tenants in common and not as joint tenants, To the use of the said T. R. and W. F. their heirs and assigns ; by virtue of which indenture all the estate right title and interest of the said complainant in and to the said last-mentioned premises became as this defendant is advised, and was well and effectually conveyed released and assured unto and to the use of the said T. R. and W. F. their heirs and assigns ; And this defendant doth aver to the best of her knowledge information and belief that the said sum of 1001. was actually paid by the said T. R. and W. F. to the said complainant, and that neither the said T. R. nor the said W. F. prevailed upon the said complainant by fraud or misrepresentation or any undue means to execute the said indentures of bargain and sale and release or either of them ; all which last-mentioned matters and things this defendant doth plead in bar to so much of the said bill as is herein- before pleaded to ; And this defendant humbly prays the judgment of this honorable court whether she ought to make any further answer to so much of the said bill as is hereinbefore pleaded to ; And this defendant not waiving her said several demurrers and plea but wholly.relying and insisting thereon, for answer to so much of the said bill as this defendant is advised is material or necessary for her to make answer unto in aid of her said plea, answereth and saith she denies to the best of her knowledge remembrance information and belief that the said T. R. and W. F. or either of them ever took an undue advantage of the said complainant's distress or prevailed upon the said complainant by fraud misrepresentation or any undue means to sell and dispose of his right and interest in the said last- mentioned premises or any part thereof, or to execute the said inden- tures of bargain and sale and release or either of them ; And this de- fendant further answering saith she hath been informed and believes it Averments that the con- sideration lOOZ. was paid, and that nei- ther T. E. nor W. F. used fraud or un- due means ; Answer in aid of plea, deny- ing that T. R. and W. F. took any un- due advan- tage, or pre- vailed upon plaintiff by fraud to sell his interest in the premises, or to execute the deeds ; believes that DiSMUllUKK, FLifiA^AWD ANSWER. 635 to be true that the said sum of 1001. was actually and bona fide paid by the eonsidera- the said T. E. and W. F. in equal moieties to or to the use of the said "°" ^^^ P^'*^ complainant, and that the same was considered by the said T. R. and ^ p f^ ^^^ W. F. at the time of the execution of the said several indentures of plaintiff, and bargain and sale and release to be a full and *adequate consideration [ *636 ] for the purchase of all the right and interest of the said complainants i^as at the in and to the last-mentioned premises and every part thereof. time consider- ed a full and adequate con- sideration. XVIII. Demurrer hy husband and wife to so much of the bill as sought to set aside a testator's will, or to restrain proceedings at laiu, that it appeared by the bill that the husband proved the will in the Prerogative Court, that such court has exclusive jurisdiction, and that no equity is shown to stay the proceedings at law ; — Plea by the husband as to so much as sought a distribution of the tes- tator's personal estate, that he made a will bequeathing his re- siduary estate to the husband, and appointed him executor, and that he has proved the will; — Answer by both defendants to the residue of the bill. The joint and several demurrer of S. N. and E. his wife to part, and the plea of the said S. N. to part and the joint and several answer of the said S. N. and E. his wife to other part of the bill of complaint of M. B. W. T. and J. M. and S. his wife, complainants. These defendants S. N. and E. his wife, by protestation, &c. {see Demurrer by form No. II. p. 624,] as to so much of the said bill as seeks to set S. N. and aside or impeach or have any relief against the will of R. R. in the 3' !i'^^f°*^° •11-111 1 1 r.1 .T-riT-i much ot the said bill named as to the personal estate ot the said R. R. or that bill as seeks seeks a discovery from these defendants or either of them, in rela- relief against tion to the said will, or that prays an injunction against this defend- !^® ^T^' P*^ ^^ ant A. N. to stop his proceedings at law against the said W. T. pekrs that S. these defendants do demur thereunto, and for cause of demurrer show N. proved the that it appears by the complainant's own showing that this defendant If"^ m the S. N. hath proved the said will of the said R. R. in the Prerogative court and Court of the Archbishop of Canterbury, and these defendants are that such advised .that the probate of wills relating toipstates and particularly '^°"''* ^^^ ^''- relating to personal estates do properly belong to the Ecclesiastical diction^"" ' Courts of this realm, and that the same ought not to be called into question in this honorable court ; And for further cause of demurrer and that there these defendants show that there is not as they are advised any '^ '^° equity matter or thing set forth in and by the said bill as a foundation of proceedingsat equity for this court to interpose in relation to the action at law law by S. N. commenced by this defendant S. N. against the said W. T. but what against W. T. is properly cognizable at law, and that the said complainant W. T. may have the same or equal benefit upon a trial at law, if the same is true; for which reason and for divers other causes these defend- 636 DEMURRERS. ants do demur to so much of the said bill as aforesaid, and humbly pray the judgment of this honorable court whether they shall make Plea by S. N. any further or other answer thereto ; And as to so much of the said as to so much ])in as seeks to have a distribution of the personal estate or effects W^(nstribii- °f t^e said R. R. according to the statute of _ distribution of in- tion of R. R.'s testates' estates or that seeks an account or discovery of or from [ *637 ] *tliis defendant S. N. of the personal estate of the said R. R. this personal es- defendant S. N. doth plead thereunto, and for plea this defendant tate,tbatB.R. saith that the said R. R. did in his life-time on or about the made a will day of in the year of our Lord as this defendant believes hfs'^resTduafy ^^^J ^^^^ ^^^ publish his last will and testament in writing, and personal es- thereby after giving several legacies therein particularly mentioned, tate to S. N. gave and bequeathed all the rest and residue of his real and personal fn^hk^txe- ^st^ts ^'ito this defendant to hold to him his heirs and assigns for cutor ; and ever, and of the said will made this defendant sole executor ; and that he proved that this defendant also after the death of the said testator proved Prer^'^ith-e^^ the Said will in the Prerogative Court of the Archbishop of Canter- Court^^ ^^* hury, as by the probate thereof under the seal of the said court now in the custody or power of this defendant ready to be produced as this honorable court shall direct, and to which this defendant craves leave to refer, doth more fully and at large appear ; All which mat- ters and things this defendant S. N. doth aver and is ready to prove as this honorable court shall direct, and doth plead the same in bar to so much of the said bill as for that purpose is hereinbefore men- tioned, and humbly craves the judgment of this honorable court Answer to the whether he shall make any further or other answer thereto ; And residue of the as to SO much of the Said bill as these defendants have not before respectively demurred or pleaded unto, these defendants in no sort waiving the benefit of the said demurrer and plea or either of them but wholly relying and insisting thereon, these defendants for an- swer to the residue of the complainant's said bill or to so much thereof as these defendants are advised is material or necessary for them or either of them to make answer unto, these defendants, each speaking for him and herself, and not the one for the other, they these defen- dants do severally answer and say as follows, &c. *XIX. Demurrer to an amended bill, the plaintiff's title to redeem having been obtained after the filing of the original bill -and the answer to i^.(33) The demurrer of, &c.(34) This defendant by protestation, &c. \seeform No. I. p. 623,] doth (33) See PilUngton v. Wignall, 2 Madd. Rep. 240, 4; and Ld. Red. Tr. PI. 207, 4th edit ; see also 2 Madd. Ch. Pr. 374, 5. This demurrer was drawn according to a precedent of a similar demurrer drawn by Lord Redesdale when at the bar, and was allowed ; it was held not to be a speaking demurrer; it only stating matter appearing in the bill, not matter out of it.. (34) See Smith v. Bryon, 3 Madd. 428, 9 ; and note (i), antea, p. 564. UJiMUJlKajiiS. 637 demur thereto, and for cause of demurrer saith that the indentures of lease and release in the said bill mentioned to bear date respec- tively the 15th and 16th days of July 1816, the indenture of re- lease purporting to be made between the said complainant W. M. of the one part and the said complainants J. P. and R. P. of the *other [ *638 ] part, and to be a conveyance of the equity of redemption of the pre- mises therein mentioned and by the said bill sought to be redeemed, appear by the said bill to bear date after the filing of the original bill of complaint of which the said bill of the said J. P., R. P. and W. M. purports to be an amended bill ; Wherefore and for divers other good causes of demurrer appearing in the said bill of the said J. P., R. P. and W. M. this defendant doth demur thereto, and he prays the judgment of this honorable court whether he shall be com- pelled to make any further or other answer to the said bill of the said J. P., R. P., and W. M., and humbly prays to be hence dis- charged with his reasonable costs in this behalf sustained. *XX. Demurrer for want of equity to a supplemental bill.{S5) The demurrer of, &c. '5 These defendants by protestation, &;c. [see form. No. II. p. 624,J do demur in law to the said supplemental bill of complaint and for cause of demurrer show that the said supplemental bill of complaint doth not contain any matter to entitle the said complainant to any such discovery from these defendants or to any such relief against them as is sought and prayed in and by the said supplemental.bill ; Whereof these defendants- do demur thereto, and pray the judgment of the court whether they ought to be compelled to put in any further or other answer to the said complainant's said supplemental bill, and humbly pray to be hence dismissed with their reasonable costs in this behalf sustained. *XXI. Demurrer to a bill of review and supplemental hill, on the ground that there are no errors in the decree, and that the leave of the court was not first obtained.{SQ) These defendants by protestation, &c. [^seeform No. II. p. 624, j do demur in law thereto, and for cause of demurrer show that there are no errors in the record and premises and in the decree of the day of in the said bill of review and supplemental bill mentioned, nor is there any suflScient matter alleged in the said (35) See Adams v. Dowding, 2 Madd. Rep. 53. (36) See Ld. Red. Tr. PI. p. 84, 203, 4, 4th ed. ; 2 Madd. Ch. Pr. 542. 638 PLEAS. bill of review and supplemental bill to entitle the said complainant to reverse the said decree ; and for divers other errors and defects [ *639 ] ^appearing in the said bill of review and supplemental bill, these de- fendants do demur in law thereto ; And these defendants for further cause of demurrer humbly show that by an order of this honorable court bearing date the 17th October in the fifteenth year of his present Majesty's reign, It is ordered, amongst other things, that no supple- mental or new bill in nature of a bill of review grounded upon any new matter discovered or pretended to be discovered since the pronouncing of any decree of this court, in order to the reversing or varying of such decree, shall be exhibited without the special leave of the court first obtained for that purpose; Wherefore and for that the said com- plainant doth not allege by the said bill of review and supplemental or new bill that he had first obtained leave of this court for exhibiting the said bill of review and supplemental or new bill, these defendants demur in law thereto, and humbly pray the judgment of the court whether they ought to be compelled to put in any further or other answer to the said complainant's said bill of review and supplemental or new bill, and humbly pray to be hence dismissed with their reason- able costs in this behalf sustained. [ *640 J ^CHAPTER XI. PLBAS.(l)'' I. Plea of an alien enemy. [2) The plea of defendant to the bill of complaint of complainant. This defendant by protestation not confessing or acknowledging all or any of the matters and things in the said complainant's said bill (1) As to the form and requisites of pleas in general, see Ld. Red. Tr. PI. 294,300, 4tli edit. ; Beames on Pleas, p. 1, 32, 42; 2 Madd. Ch. Pr. p. 297. A plea may be to the whole bill, or to pari only. If a plea does not go to the whole bill it must clearly and precisely express to what part of the bill the defendant pleads ; if the plea is general with an exception of matters after mentioned and is accompanied by an answer, the plea is bad ; but if the exception is clearly stated and does not re- quire a reference to any other part of the record to make it intelligible, it is sufficient ; see the authorities above referred to ; see also Howe v. JDuppa, 1 Ves. & Bea. 514. A plea must not contain unnecessary averments ; Cork v. Wilcock, 5 Madd. 330. In what cases a plea is required to be put in on oath, see Ld. Bed. Tr. PI. p. 301 ; Beames on Pleas, 316 ; Ord. Oh. ed. Beames, 26, 1 ; 19 Ves. 81, 2. (2) See Ld. Red. Tr. PI. p. 229, 4th edit. ; Beames on Pleas, p. 112, 254, and p. 329, where a form of a similar plea is inserted; see also Evans v. Richardson, 3 Mer. 469. •■ The matters set up in a plea must be a complete bar to the equity of the bill ; and if there is any matter of equity in the bill to which a bar is not set up by the plea, it must be set aside; Piatt v. Oliver, 1 McLean, 295 ; therefore a plea in bar to a bill, denying only part of the material facts stated in" the bill, will not avail ; for a PLBAB. mentioned to be true in such manner and form as the same are therein and thereby set forth and alleged, doth plead thereunto, and for plea saith that the said complainant is an alien born in foreign parts, that IS to say, in the kingdom of Spain, out of the allegiance of our Lord the now King, and under the allegiance of a foreign Sovereign, that is to say, of the King of Spain, an enemy to our Lord the King ; and that the said complainant before and at the time of his exhibiting his mere denial of facts is proper for an answer, but not for a plea. MiWgan v. Milledge, 3 Cranch, 220. The plea must be perfect in itself, so that if true, it will make an end to the cause ; Allen v. Randolph, 4 Johns. C. R. 693 ; see also, Bogardus v. Trinity Church, 4 Paige, C.R. 178 ; and it must set up new matter; Bailey y.Le Roy, 2 Edw. Ch. 514; therefore, where all the facts set up by a plea appear upon the face of the bill, the plea is bad. Phelps v. Garrow, 3 Edw. Ch. 139. If there are several pleas, or a plea and a demurrer, to distinct parts of a bill, each plea or demurrer must dis- tinctly specify what part of the bill it is intended to cover; Van Booh v. Whillock, 3 Paige, C. R. 409; Davison v. Schermerhorn, 1 Barb. 480; and where a defendant pleads to one part of the bill and answers another, these defences must clearly refer to separate and distinct parts of the bill. Clark v. Saginaw City Bank, Barring. Ch. 240. One plea in bar to the whole bill, and several pU-as to distinct parts of the same bill, are bad. Van Book v. Whillock, 3 Paige, C. R. 409. A plea of matter in pais, and a plea in bar of matter in pais, must be filed on oath. Dmin v. Keezin, 3 Scam. 292. And where the plaintiff waives an answer under oath, a plea must nevertheless be sworn to. Ileartt v. Corning, 3 Paige, C. R. 566. An answer overrules a plea to the same matter. The Bank v. Dugan, 2 Bland, 254 ; and where the defendant in suit for specific performance, pleads the Statute of Frauds, and answers admitting the contract, the answer overrules the plea; Epis- copal Church T. Leroy, Riley, Ch. 156 ; but a plea in bar is said not to be waived by an answer filed simultaneously. Saddler v. Glover, 1 B. Monr. 53. Where the plea to a bill of discovery in aid of an action at law presents a question proper to be made in the action, and presents no reason why discovery should not be made, the plea is a nullity. Green v. McCarroll, 24 Miss. 427. A plea of a stated account must aver that the accounts settled all dealings between the parties, and that they were just, and fair, and due, and these averments must be supported by an an- swer to the same effect. Schwartz v. Wendell, Earring. Ch. 395. Where in an equity suit to foreclose a mortgage, a defendant, who was joined as a subsequent incumbrancer, pleaded in bar that a receiver had been appointed pendente lite, in a creditor's bill, brought by him against the mortgagor, who was the other de- fendant, it was held, that the plea was manifestly bad and frivolous ; and it seems it is not necessary to make such receiver a party by a supplemental hill. Wilson v. Wilson, 1 Barb. Ch. R. 592. Where to a bill of review, a plea was filed, not being a plea in bar of a former recovery, but that a writ of error to the decree sought to be re- viewed, had been dismissed by the Supreme Court, it was held, that itwasnot neces- sary in such plea to set out the entire record of the judgment of the Supreme Court dismissing the writ of error, but only so much of the leading facts as were relied on by the defendants as a bar to the complainant's bill, in a distinct aud issuable manner. Rice V. Carey, 4 Geo. 558. A plea that a former bill has been brought for the same matter, a demurrer sustained thereto, and an appeal to the Supreme Court granted, should allege specifically that the appeal had been regularly certified to the Supreme Court, and was still therein pending. Moss v. Ashhrooks, 7 Eng. 369. It is sufficient in pleading to a bill filed in the name of a company, and A. and B., alleging an assign- ment of the property of such company to A. and B., to aver that they are not the assignees of such company, and that by a decree of a court, remaining in full force, such assignment has been set aside, and the property placed in the hands of a re- ceiver. Life Insurance and Trust Company v. Davis, 4 Edw. Ch. 5S8. A plea to a bill to set aside a settled account for fraud, that the cause of action arose ten years before, and the fraud, if any, was discovered six years before, is not bad for du- plicity. Boggs v. Forsyth, 2 Sandf Sup. Ct. 533. Where stockholders in a bank are personally liable for the ultimate redemption of its bills, to a suit by a bill holder against a stockholder, a plea that the bank has assets which have not been appro- priated, without specifying what they are, is demurrable for uncertainty. Lane v. Morris, 8 Geo. 468. A plea which negatives material facts set forth in complainant's bill, necessary to his title, and of which discovery is sought, must be accompanied by an answer. Cox v. Mayor, ^c. of Griffin, 17 Geo. 249. 640 640 PLEAS. said bill of complaint against this defendant was and still is an enemy of our Lord the now King, and an inhabitant of C. under the govern- ment of the said King of Spain, and adhering to our said Lord the King's enemies ; All which matters and things this defendant doth aver to be true and pleads the same to the whole of the said bill and humbly demands the judgment of this honorable court whether he ought to be compelled to make any answer to the said bill of complaint, and humbly prays to be hence dismissed with his reasonable costs in this behalf most wrongfully sustained. J. L. [ *641 ] *II. Plea that the defendant is not the deceased's personal represen- tative as alleged in the bill.(3) The plea of, &c. This defendant by protestation, &c. [see form No. I. p. 640,] to all the discovery and relief sought and prayed by the said complain- ant's said bill he this defendant doth plead, and for plea saith that he this defendant is not the executor or administrator or the legal personal representative of the said A. B. as in the said bill alleged, which said representative or representatives ought to be made party or parties to the said complainant's said bill as this defendant is ad- vised ; All which matters and things this defendant avers to be true and pleads the same to the said bill, and humbly demands the judg- ment of this honorable court, &c. *III. Plea to a bill by assignees of a bankrupt, that the same was filed without the consent of the creditors.(4) The plea of, &c. This defendant by protestation, &c. [see form No. I. p. 640,] and for plea saith that by the statute made and passed in the 5th year of the reign of his Majesty King George the Second, intituled, " An act to prevent the committing of frauds by bankrupts,"(5) it is pro- vided that no suit in equity shall be commenced by any assignee or assignees without the consent of the major part in value of the credi- tors of such bankrupt who shall be present at a meeting of the credi- tors pursuant to notice to be given in the London Gazette for that purpose ; And this defendant doth aver that the said bill was filed by the said complainants as the assignees of the estate and effects of (3) See Ld. Red. Tr. PI. p. 220, 234; Beames on Pleas, p. 130, 256. (4) See Ocklestone v. Benson, 2 Sim. & Stu. 265. (5) C. 30, s. 38; and see the 6 Geo. 4, c. 16, s. 88, and note (1), antea, yol. i. p. Ill ■ Eden's Bank. Laws, p. 342. ' PLEAS. 641 the said bankrupt T. C. without the consent of the major part in value of the creditors of the said bankrupt present at a meeting of the creditors pursuant to notice given in the London Gazette for that purpose ; And this defendant doth therefore plead the matters afore- said, &c. *IV. Plea of bankruptcy of the plaintiff .{Q) [ *642 ]. The plea of, &c. This defendant by protestation, &c. [see form JVo. I. p. 640,] doth plead to the said bill, and for plea saith she hath been informed and believes that the said complainant and J. B. the younger his son did for some years before the month of carry on the business of merchants as copartners together at L. in the county of Y. ; And that they were before and on, &c. jointly indebted on account of the partnership dealings to many persons to a large amount in the whole and particularly to H. W. in the sum of 1. ; And that the said complainant and the said J. B. the younger were before and on, &c. severally indebted on their respective separate accounts to many per- sons to a large amount in the whole ; And that the said complain- ant and the said J. B. or one of them on their said partnership ac- count before the said, &c. committed one or more act or acts of bankruptcy ; And that a commission of bankruptcy under the great seal of Great Britain was on the said day of duly issued against them under the names of J. B. the elder and J. B. the younger on the petition of the said H. W., and that they were there- upon by the major part of the said commissioners named in the said commission soon after duly found and declared to be bankrupts as copartners ; And that the said H. W., &c. were duly chosen as- signees of the estate and effects of the said complainant and his said son under the said commission ; And that the usual assignment was made by the major part of the said commissioners named in the said commission unto the said H. W., &c. of the personal effects of the said complainant and his said son and each of them; And that by indenture of bargain and sale duly enrolled in this honora- ble court in the year , the major part of the commissioners named in the said commission of bankruptcy also made the usual conveyance unto the said assignees of all the real estate of the said complainant and his said son and each of them ; And that the com- plainant shortly after the issuing of the said commission of bankruptcy obtained the usual certificate from in number and value of the joint creditors of him and of his son also and also of the separate creditors of him the said complainant who proved their debts under (6) See Ld. Bed. Tr. PI. p. 232; Beames on Pleas, p. 118, 254; a plea of bank- ruptcy must state distinctly and in succession the facts upon which the bankruptcy rests ; Carlton v. Leighton, 3 Mer. 667. A plea that the plaintiff had taken the benefit of an act for the relief of insolvent debtors is to be found in 16 Yes. 467, 2d edit. ; De Minckwiiz v. Udney. 642 PLEAS. the said commission of bankruptcy and also from the major part thereof from the commissioners named in the said commission ; And that the said complainant duly conformed himself to the several laws made and in force concerning bankrupts ; And this defendant hath also been informed and believes that such certificate was duly confirmed [ *643 ] *by the Right Honorable the late Lord Chancellor ; And this defen- dant for further plea saith she believes that the said commission of bankruptcy hath never been superseded but that the same is now remaining in full force, and therefore as the right claimed by the said bill to the estates therein mentioned and to the rents and profits appears by the said bill to have accrued, and if the same is just and well founded did really accrue long before the date and issuing forth of the said commission, this defendant is advised that the said com- plainant's right and interest to and in the said estate and the rents and profits thereof, was at the time of the filing of the said bill and is now vested in the said assignees under the said commission of bankruptcy for the benefit of them and the other creditors of the said complainant and his said son jointly and of the said complainant alone ; All which matters and things this defendant doth aver to be true, and she pleads the same to the whole of the said bill, and humbly demands the judgment of this honorable court whether she ought to be compelled to make any further or other answer thereto. *V. Plea hy bankrupts of their certificate to the whole of the plaintiff ' s bill {brought in respect of a demand arisen previously to their bank- ruptcy,) excepting only as to the allegation in the bill that the bank- rupts claimed an interest in the matters in question, which by answer and disclaimer accompanying the plea they disclaimed, setting forth a release executed to their assignees of all right and interest in their surplus estate.{7) The plea of, &c. These defendants respectively by protestation, &c. [see form No. I. p. 640,] do plead to so much of the said bill as seeks that these defendants may make good to the said complainant the loss and damage alleged to have been sustained by him by the detention of the four hundred and thirty-four casks of pearl ashes in the said bill of complaint in that behalf mentioned, and that all necessary directions might be given to ascertain the amount of such loss ; and for plea thereto, and to all the discovery sought from these defendants with relation thereto or to any other matters in the said bill contained, (1) See De Tasiet v. Sharpe, 2 Madd. 51 ; the plaintifif's bill was held analogous to the remedy by action at law for money had and received, and considered as brought in lieu of that action, and consequently that the certificate was a bar. A plea of bankruptcy of the defendant is good where the decree sought is ad rem and not a personal demand, notwithstanding the commission has issued after the filing of the bill; Turner y. Robinson, 1 Sim. & Stu. 3. PLEAS. 643 except as to the question whether these defendants or one and which of them have not or hath not or do not or doth not claim some and what interest in the matters in question in this cause, these defend- ants say that by a statute or act of parliament made and *passed in [ *644 ] the 5th year of the reign of his late Majesty King George II. and afterwards made perpetual, intituled " An act to prevent the com- mitting of frauds by bankrupts," it is amongst other things enacted that all and every person and persons so become or to become bank- rupts as in such act as aforesaid, who should within the time thereby limited surrender him her or themselves to the acting commissioners named and authorized in or by any commission of bankrupt awarded or to be awarded against him her or them as in and by the said act directed, should have certain allowances in the said act in that behalf particularly mentioned out of the net produce of their esfjate, and every such bankrupt should be discharged from all debts by him or them due and owing at the time that he she or they did become bank- rupt ; and that in case any such bankrupt should be afterwards ar- rested prosecuted or impleaded, such bankrupt should and might plead in general that the cause of such action or suit did accrue before such times as he she or they became bankrupts, and might give the said act and special matter in evidence ; And these defendants do aver that they did respectively become bankrupt since the period in the said act referred to for the commencement of the operation and effect thereof, and that a commission of bankrupt under the great seal of Great Britain, bearing date at Westminister, the 1st day of Oc- tober 1812, was awarded and issued against them together with G. Sharpe the elder deceased their late father and copartner in trade, under which commission they these defendants and the said late G. Sharpe the elder respectively were duly found and adjudged bank- rupt, and that these defendants and each of them did within the time limited for that purpose by the said act, surrender themselves to the acting commissioners named and authorized in or by the said com- mission of bankrupt so awarded against them and the said G. Sharpe the elder, and that these defendants and each of them did in all things conform as in and by the said act is directed : And these defendants do aver that the said cause of action or suit in the said complainant's bill set up against these defendants and each of them, did accrue before such time as these defendants respectively became bankrupt ; And therefore these defendants severally crave the benefit of the said act and plead the same in bar to the relief and discovery (except as before excepted) so sought against them respectively by the said bill of complaint, and pray the judgment of this honorable court whether they or either of them shall be compelled to make any other or further answer to the said complainant's said bill of complaint, save only as to the part thereof above excepted out of this their plea ; And these defendants not in any sort waiving their said plea, do for answer to such said excepted point or question put to them in the said bill of complaint and not covered by their said plea, or to so much of such question as they are advised is material or necessary for them to make answer unto, say that by a certain deed-poll under the hands and seals of these defendants and the said late G. Sharpe 644 PLEAS. the elder deceased, dated the 26th day of July 1813, these defend- ants and the said late G. Sharpe the elder, in consideration of 5s. paid them respectively by the assignees of their estate, released to the said assignees all surplus allowance right title interest benefit [ *645 ] *claim and demand which these defendants and the said G. Sharpe the elder deceased or any or either of them could or might have claim challenge or demand in to or out of their estate, or against the said assignees personally in respect thereof both at law and in equity ; And therefore in case these defendants ever had claimed or pretended to have or claim any interest in the matters in question in this suit, such claim and interest would as they are advised be now extinguished or transferred wholly to their said assignees ; And these defendants further severally say they do not know or believe that since their said bankruptcy they or either of them have had claimed or pretended to have or claim, any interest in the matters in question in this cause, and they do respectively disclaim all right title and interest therein and in every part thereof. *VI. Plea of a fine and non-claim to a hill for an account and for a discovery of the defendant's title, accompanied hy an answer to fart of the bill.{S) The plea and answer of Dame Mary Every, Daniel Parker Coke, William Hoskins, and John Fowler, to the bill of complaint of Allen Butler com- plainant. These defendants by protestation, &c. [see form No. I. p. 640,] as to so much of the said bill as seeks to compel them to set forth an account of the rents and profits of the messuages farms lands tene- ments and hereditaments in the said bill mentioned or any part thereof, late the estate of Sir John Every bart. the intestate in the said bill named, and of which Sir Edward Every obtained the actual possession as hereinafter mentioned, and as to so much of the said bill as prays that possession of such messuage, &c. may be delivered (8) This is a correct copy of the plea (as amended) allowed by Lord Chancellor Thurlow in Butler v. Every, 1 Vea. jun. 136, 2d edit., 3 Bro. Ch. Oa. 80, 81, S. C. It is inserted in the 5th volume of "The property Lawyer," p. 126, (from a MS. in the possession of the editors of that work) in a note to a case of Leigh v. Leigh, where all the cases will be found collected. A similar plea in Dobson v. Leadbeater, 13 Ves. 230, was overruled; an averment of actual seisin being necessary, the words '^ being thereby seised," being argumentative. See further Ld. Red. Tr. PI. p. 253, 4th edit. ; Beames on Pleas, p. 183. In Leigh v. Leigh, cited supra, the plea stated that the defendant at the time of levy- ing the fine was seised in possession, it was objected that such averment was not equi- valent to stating that he was seised of an estate of freehold ; Sir A. Hart, V. C. con- sidered the plea as suflScient in point of form ; (it was however overruled upon the ground that a fine cannot be pleaded to a bill filed merely to prevent a satisfied term being set up on ejectment.) PLEAS. 645 up to the said complainant, or that any title-deeds or writings relat- ing thereto may be delivered up to him, or that an account may be taken of any rents or profits of the said messuages, &c. or that these defendants or any of them may pay to the said complainant any sums of money on account of such rents and profits, or that *the said [ *646 ] complainant may have any other relief touching such messuages, &c., and as to so much of the said bill as seeks to discover in what manner or by what pedigree the said Sir Edward Every is the heir at law of the said Sir John Every these defendants do plead in bar, and for plea say that after the death of the said Sir John Every baronet, which happened about June 1779, Edward Every afterwards Sir Ed- ward Every, baronet, in the said bill named, entered upon the said messuages farms lands tenements and hereditaments hereinafter par- ticularly mentioned, claiming the same as heir at law of the said Sir John Every, and was in the actual possession thereof and in the receipt of the rents and profits thereof; and that the said Sir Edward Every being thereby seised and in the actual possession of all and singular the messuages farms lands tenements and hereditaments aforesaid, in Michaelmas Term in the 20th year of the reign of his present Majesty, a fine sur conuzance de droit come ceo qu'il a de son done was levied in due form of law before the justices of the court of Common Pleas at Westminster, between Daniel Parker Coke, esq. demandant, and the said Sir Edward Every baronet deforciant, of all the said messuages farms lands tenements and hereditaments, by the , description of the manors of Eggington, Newton Solney otherwise Newton Soolney, and Hardwick, with the appurtenances, and of sixty messuages, thirty cottages, ninety gardens, fifty orchards, one thou- sand acres of lands, six hundred acres of meadow, one thousand acres of pasture, one thousand five hundred acres of wood, six hundred acres of furze and heath, two hundred acres of moor, common of pas- ture for all cattle, free fishing in the waters of Trent and Dove, courts leet, court baron, and view of frankpledge, and whatsoever to view of frankpledge belongeth, with the appurtenances in Eggington, Newton Solney otherwise Newton Soolney, Hardwick, and Kipton, and also of the rectories of Hardwick and Newton Solney, with the appurtenances, and likewise of all and all manner of tithes whatso- ever yearly arising, growing or renewing in Eggington, Newton Sool- ney, and Hardwick aforesaid, and moreover of the advowson of the churches of Newton Solney and Eggington, upon which fine procla- mations were duly made according to the form of the statute in that case made and provided, and the last proclamation thereon was duly made in Trinity Term in the 20th year of the reign of his present Majesty, as by such fine and the proclamations thereupon made and remaining of record in the said court of Common Pleas may more fully appear ; And these defendants for plea further severally say that the said estates hereinbefore particularly mentioned, and of which such fine was levied by the said Sir Edward Every as aforesaid, and such proclamations thereupon made, are all the messuages farms lands tenements or hereditaments of which the said Sir John died seised of any estate of inheritance either in fee-simple or otherwise: And these defendants for plea further severally say that the said Sir 646 PLEAS. Edward Every before and after the levying of such fine, and until his death, and after the death of the said Sir Edward Every these de- fendants Daniel Parker Coke, Abraham Hoskins, and John Fowler, claiming under him, have been and now are in the peaceable pos- session of the said messuages and premises and every part thereof . [ *647 ] *without any lawful entry thereon or on any part thereof by the said complainant or any person whomsoever within five years after the proclamation so last -made as aforesaid or at any time since, and without any suit at law or in equity touching or concerning the same messuages and premises or any part thereof prosecuted by the said complainant within five years after proclamation so last made as aforesaid until the filing of the said complainant's bill; And these defendants do aver that the said complainant was not at the time of such fine levied and proclamation thereupon made as aforesaid or at any time afterwards under any legal disability whatsoever ; And these defendants do aver that the right of the said complainant, if any he ever had in the said messuages and premises or any part thereof, accrued before the levying of such fine and five years and upwards before the filing of the said bill ; All which matters and things these defendants do plead in bar to so much of the complainant's bill as aforesaid, and do pray the judgment of this honorable court whe- ther they ought to be compelled to make any further or other an- swer thereto ; And as to so much and such parts of the said bill as J they these defendants have not pleaded unto, they these defendants in no sort waiving the benefit of their said plea but wholly relying and insisting thereon, these defendants for answer thereto say they admit it to be true that Sir John Every bart. above mentioned was in his life-time and at his death seised or well entitled in fee-simple in possession of and to the several estates above mentioned, and that being so seised or entitled he the said Sir John Every died about the time in the said bill of complaint set forth a widower intestate and without issue ; but they these defendants deny that to their know- ledge or belief the said Sir John Every died without leaving any heir at law of the male line or on the part of his father, on the con- trary they these defendants say that they believe that, &c. *VII. Plea hy an heir at laiv that he had no lands hy descent, ac- companied hy an answer admitting that he is heir at law. The plea of, &c. This defendant by protestation, &c. [see form No. I. p. 640,] as to so much of the said bill as seeks any relief from or any discovery from him (save and except whether he is the heir at law of J. C. deceased in the bill named) this defendant doth plead in bar thereto ; And for and by way of plea saith that he hath not nor hath any person or persons in trust for him, nor on the day of filing the bill nor at any time before or since had any lands tenements or here- ditaments by descent coming from the said J. C. deceased this de- fendant's father ; And this defendant not waiving his said plea but •wholly relying and insisting thereon for answer to the residue of the said complainant's bill not hereinbefore pleaded unto, or to so much ""thereof as this defendant is advised is material or necessary for him [ *648 ] to make answer unto, saith he admits he is the heir at law of the said J. C. deceased. *VIII. Plea to an ejectment hill negativing the averment in the hill as to there being outstanding lea8es.{9) The plea of, &c. These defendants respectively by protestation, &e. Iseeform No. I. p. 640,] for plea to the said bill say and aver that James Armitage ib the said bill named was at the time of his death seised in fee in possession of all the real estates whereof or whereto he was then seised or entitled ; And these defendants do aver that none of the said real estates of the said James Armitage were or was let on lease by the said James Armitage to any person or persons for any terms or term of years which were or was unexpired at the time of the death of the said James Armitage ; All which matters, &c. *IX. Plea hy several defendants that the plaintiffs are not next of kin, and averring that one of the defendants only sustains that character.{10) The joint and several plea of the Right Honorable W. Lord B. and R. H. and F. his wife defendants to the bill of complaint of J. J., D. J. and S. J. complainants. These defendants by protestation not confessing or acknowledging all or any of the matters and things in the said complainant's said bill of complaint contained to be true in such manner and form as the same are therein and thereby set forth and alleged, do plead in bar to the said bill, and for plea say that the said complainants were not nor were any nor was either of them the next of kin of the testator W. J. in the said complainant's bill named at the time of his death, nor are the said complainants nor is either of them now the next of kin of the said testator ; For these defendants (9) See Armitage v. Wadsworth, 1 Madd. Rep. 189 ; the Vice-Chancellor held that the bill would have been demurrable but for the statement of outstanding leases, and that as the plea negatived the existence of such leases, it was good, and did not stand in need of any averment by answer. See also Ld. Bed. Tr. PI. p. 222, 4th edit. (10) See Lord Bed. Tr. PI. p. 230 j Beames on Pleas, 121, 128. 46 648 PLEAS. severally for plea say they have been informed and believe it to be [ *649 ] *true that H. J. of was the grandfather of the said testator, and that he had nine children who all died before the said testator W. J. and only two of such children left issue living at the time of the death of the said testator, viz. Esther J. and Ann J. ; And these defendants for plea further severally say they have been informed and believe that R. J. who was one of the nine children of the said H. J. of Erdington had only one child the said testator W. J. who survived his father ; And that the said Esther J. died in the life- time of the said testator having intermarried with W. H. by whom she had issue one child only, namely, Susannah, who also died in the life-time of the said testator having married R. L. esq. by whom she had issue only two children viz. the defendant W. Lord B., and E. L. who died in the life-time of the said testator ; And that the said Ann J. died in the life-time of the said testator having inter- married with Sir C. F. by whom she had only one child, viz. Mary, who died in the life-time of the said testator having intermarried with the Right Honorable H. Earl of A. deceased, by whom she had six children, who all died in the life-time of the said testator except one, viz. Lady Mary who married W. H. Commonly called Lord Viscount A. which said Lady Mary Viscountess A. was living at the time of the death of the said testator, and has since died; And these defend- ants do aver that this defendant W. Lord B. and the said Lady Mary H. commonly called Viscountess A. deceased were at the time of the death of the said testator his only next of kin, and that this defend- ant W. Lord B. is now his only next of kin ; And these defendants severally say and aver that the said complainants were not nor are nor is any or either of them now the next of kin of the said testator, and do plead the same in bar to the said complainant's bill, and humbly pray the judgment of this honorable court whether they shall be compelled to make any further or other answer thereto ; And these defendants pray to be hence dismissed with their reasonable costs in this behalf sustained. *X. Plea of two outlawries, with the certificates thereof annexed.{ll) The plea of, &c. This defendant by protestation not confessing, &c. [^seeform Ifo. I. [ *650 ] p. 640,] and for plea saith that the said complainant now is *and standeth a person outlawed, and is thereby disabled by the laws of (11) This plea was considered to be a perfect plea of the outlawries, but was held to be defective for want of judicial evidence of the outlawries ; the error having arisen by the miatalse of the clerk of the outlawries, the Vice-Chancellor allowed the de- fendant to withdraw the plea and to amend it by annexing an ofiSce copy of the exi- gent or record of the outlawry ; Waters v. Mayhew, 1 Sim. & Stu. 220. A plea of outlawry may be filed after an attachment has issued ; Waters v. Cham- bers, 1 Sim. & Stu. 225. See further Ld. Red. Tr. PI. p. 226 ; Beames on Pleas, p. 17, 100. PLEAS. 650 this realm to sue or commence any action or actions suit or suits in this honorable court or any other court until the said outlawry be reversed by due course of law ; For this defendant saith that on Monday next after the Feast of St. John in the second year of the reign of his present Majesty King George the Fourth the said com- plainant by the name of Edmund Waters late of the Haymarket in the county of Middlesex esq. was outlawed in an action of trespass on the case for 300Z. at the suit of R. Hill (as by the said outlawry sub 'pede sigilli hereunto annexed appeareth;) And further that on Monday next after the Feast of All Saints in the second year of the reign of his present Majesty King George the Fourth the said com- plainant by the name of Edmund Waters late of London esq. was outlawed in an action of trespass on the case for 200Z. at the suit of Joseph Cooper, Joseph Watson, Thomas Osborne Stock and Ford Wilson (as by the said last-mentioned outlawry sub -pede sigilli here- unto also annexed appeareth,) both of which said outlawries do yet stand and remain in full force and unreversed ; And this defendant doth aver that the said Edmund Waters the complainant named in the said bill of complaint, and the said Edmund Waters named in the certificates of the said outlawries sub pede sigilli hereunto annexed, is one and the same person and not divers and several, and therefore this defendant doth humbly demand the judgment of this honorable court whether or not he shall be compelled to make any other or further answer to the said complainant's bill of complaint until the said com- plainant shall have reversed each and every of the said outlawries, and thereby become a person of ability and capable to exhibit a bill of complaint against this defendant, and in the mean time this de- fendant prays to be hence dismissed with his reasonable costs in this behalf sustained. The following certificates were annexed to the plea: " London, June 1821. "Edmund Waters late of the Haymarket in the county of Middle- "sex esquire outlawed in London on Monday next after the Feast "of St. John before the latin Gate in the 2d year of the reign of "King George the 4th, at the suit of R* Hill. "R. Hill (l. s.) Case 300Z. "Examined, John Young, deputy clerk of the outlawries." "London, Nov. 1821. "Edmund Waters late of London esquire outlawed at the Hustings "of Common Pleas held at Guildhall in and for the city of London on " Monday next after the Feast of All Saints in the 2d year of his "present Majesty King George the 4th. " At the suit of Joseph Cooper, Joseph Watson, Thomas Osborne "Stock, and Ford Wilson. "Beavan (l. s.) Case 200Z. "Examined, W. Haines, clerk of the outlawry." *651 PLEAS. *XI. Plea of the statute of frauds to a bill for specific performance of a parol agreement, accompanied hy an answer to the matters stated in the bill tending to show a part performance ; — with a note of the Lord Chancellor's decision on overruling the plea.{12) This defendant by protestation, &c. [see form No. I. p. 640,] to so much of the said bill as seeks to compel this defendant specifically to perform the agreement in the said bill mentioned to have been made and entered into between the said complainant and this defendant for sale by this defendant unto the said complainant of a certain messuage or tenement in the said bill mentioned, or as seeks to com- pel this defendant to execute a conveyance of such messuage or tene- ment unto the complainant pursuant to any such agreement, or as seeks any other relief relating to such messuage or tenement, or as seeks any discovery from this defendant of or concerning any agree- ment made or entered into between the complainant and this de- fendant for sale by this defendant unto the said complainant of the said messuage or tenement and not reduced into writing and signed by this defendant or some person by him this defendant lawfully au- thorized, this defendant doth plead in bar, and for plea saith that by an act of parliament made in the twenty-ninth year of his Majesty King Charles the Second, intituled, " An act for prevention of frauds and perjuries, "(13) it was amongst other things enacted, that from and after the 24th day of June 1677 no action should be brought whereby to charge any person upon any contract or sale of lands tenements or hereditaments, or any interests in or concerning them, unless the agreement upon which such action should be brought, or some memorandum or note thereof should be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized ; As by the said act may appear ; And this defendant further for plea saith that neither he this defendant nor any person by him lawfully authorized, did ever sign any con- tract or agreement in writing for making or executing any sale or conveyance to the complainant of the said messuage or tenement or any part thereof or any interest therein or to any such effect, or any memorandum or note in writing of any such agreement ; All which matters and things this defendant doth aver to be true, and is ready to prove as this honorable court shall award ; And therefore he doth plead the same in bar to so much and such parts of the said bill as aforesaid, and humbly prays the judgment of this honorable court whether he shall be compelled to make any further or other answer to so much and such parts of the said bill as is herein and hereby pleaded unto as aforesaid; And this defendant not waiving his said plea, but wholly relying and insisting thereon, and in aid and support thereof, for answer to the residue of the complain- ant's bill not hereinbefore pleaded unto or to so much thereof as he £ *652 ] this *defendant is advised is in anywise material or necessary for him (12) See Lordjled. Tr. PI. p. 265, T, and p. 299, 4th edit. ; Beames on Pleas, 171, 6. (13) C. 3, 3. 4. PLEAS. 652 to make answer unto, he answering saith that he this defendant was in the month of and now is seised in fee-simple of the messuage or tenement in the bill mentioned, together with the household goods and stock upon the premises, and that the same then were and now are in his possession or occupation in the manner therein set forth ; And this defendant also admits it to be true that this defendant was in the said month of last desirous to sell the said messuage or tenement and the furniture and stock in and about the same, and that the complainant being by trade a brewer and maltster was then desirous of purchasing the same, and that a treaty was in the said month of had between the said complainant and this defend- ant for the sale thereof by this defendant to the said complainant ; And this defendant further answering saith that while the said com- plainant and this defendant were treating or conversing together as to this defendant selling to the said complainant the said messuage or tenement, the said complainant asked this defendant's opinion whether S. W. who is named in the said bill was not a fit person to take or become tenant of the said premises, and this defendant hav- ing answered that he this defendant knew nothing to the contrary, the said complainant then desired that if this defendant should see the said S. W. this defendant would send him to the said complain- ant, and the said complainant at or about the same time asked this defendant at what yearly rent the said messuage or tenement was rated in the parish books ; and this defendant having answered that the said messuage or tenement was in such books rated at the yearly rent of 1., the complainant further asked this defendant whether the same would bear rising for that the same was well worth 1. a year, or conversation to such or the like effect then passed between the said complainant and this defendant to the best of this defend- ant's remembrance and belief; but this defendant also saith that this defendant's declaring that the said messuage or tenement was worth 1, a year proceeded from his speaking in a hurry or by surprise and without consideration, the said messuage or tenement being really worth to be let much more than 1, a year ; And this defendant further saith that this defendant having seen the said S. W. shortly after the aforesaid conversation with the said complain- ant, he this defendant informed the said S. W. that the said com- plainant wanted to see him the said S. W. for the purpose of treating with the said S. W. for letting unto the said S. W. the said messuage or tenement, or to such or the like effect ; And this defendant hath been since informed and believes that the said S. W. did very soon afterwards go to the said complainant, and that after some short treaty was had between them for the complainant's letting the said messuage or tenement to the said S. W. they the said S. W. and the said complainant executed a writing bearing date the day of last and signed by them, whereby it was declared that in case he the said complainant should on or before then next purchase the said messuage or tenement from B. for which he was then in treaty with him, that he would then give a lease thereof to the said S. W. at the rent of 1, per annum, although this defendant for greater certainty as to the date and material contents of such writ- *653 PLEAS. ing *craves leave to refer thereto, now in this defendant's custody or power, the same having been obtained from the said S. W. by a rela- tion of this defendant's, and by him delivered to this defendant; but this defendant saith he doth not know or believe that the said com- plainant in writing or otherwise entered into any absolute agreement or any other agreement than as aforesaid for letting the said messu- age or tenement unto the said S. W. ; And this defendant also saith that to the best of his this defendant's remembrance and belief he this defendant did not at any time further or otherwise than as aforesaid communicate with the said S. W. for letting the said messuage or tenement unto him, or executing any lease thereof unto him, nor was further or otherwise than as aforesaid privy to the execution or sign- ing of the same agreement dated the day of last by the said complainant or the said S. W. or either of them, or to the making of any agreement between them for the complainant's letting the said messuage or tenement unto the said S. W. before or at the time of the executing signing or making thereof or until some time after- wards ; And this defendant is advised and humbly apprehends that according to the terms of the said writing dated the day of last the said complainant cannot be answerable to the said S. W. or liable to make any satisfaction to him for or on account of his not executing a lease of the said messuage or tenement to the said S. W. or not letting the same to him in case the said complainant should not be able to purchase the same from this defendant ; And this defendant absolutely insists that the said written agreement dated the day of is now void and of no effect, as the said complainant was not become the purchaser of the said messuage or tenement by now last past; And this defendant further saith he believes that the sum of 1, in money and in annuity of 1, for the life of this de- fendant were not in the said month of last near a full and valu- able consideration for the purchase of the freehold and inheritance of the said messuage or tenement, [^nd denies combination. '\ Observation. — The answer takes no notice of the charge that the defendant delivered the deeds to the attorney for the purpose of ex- amining the title in preparing the conveyance ; and that therefore in arguing the plea that charge must be admitted to be true ; there was nothing in the instructions concerning that charge. The bill and facts stated in the answer were laid before A. and S. separately, they both advised the plaintiff to plead the statute of frauds. The Lord Chancellor, Hilary Term, overruled the plea in this cause, but ordered it to stand for an answer, with liberty to except and saving to the defendants the benefit of the statute. At the hearing he considered the bill in the same light as if it had stated merely a parol agreement; for the matters contained in the bill tending to show a special performance of the agreement were so frivolous they might as well have been left out. Considering the bill in that point of view, he thought the plea a bad one ; because it went [ *654 ] to the discovery of that which if the court could be satisfied *of the truth of by any other means but by evidence, they would decree per- PLEAS. 654 formance of the agreement. He was therefore of opinion that the plea should be supported by an answer denying the fact of the agree- ment, and seemed to think that where the defendant pleads the statute of frauds and by his, answer admits the agreement, the answer over- rules the plea, and the court would decree execution. He also ob- served that where a bill stated an agreement without mentioning it to be in writing a demurrer would be the proper mode of pleading according to the general rules of and principles of demurrers, because it appears on the face of the bill that the plaintiff has not made out such a case as entitles him to relief ; but he added that the usual course was to plead the statute to such a bill, and that the practice had obtained by analogy to the courts of law, where if the declaration stated an agreement without mentioning it to be in writing, it was always usual to plead the statute in bar to it. XII. Plea of the statute of frauds in bar to so much of a hill as sought to compel the specific performance of a parol agreement for a lease. The plea of, &c. This defendant by protestation, &c. [see form No. I. p. 640,] as to so much of the said bill as seeks to compel this defendant or any person or persons claiming under him to execute a lease in writing of the several lands and tenements in the said bill mentioned or of any of them or of any part thereof pursuant to the pretended agree- ment in the bill mentioned, and as to any relief thereby prayed touch- ing such lease and agreement, this defendant doth plead in bar, and for plea saith that by an act of parliament made in the twenty-ninth year of the reign of his late Majesty King Charles the Second, intituled "An act for the prevention of frauds and perjuries;" it is amongst other things enacted, that from and after the 24th day of June 1677, no action shall be brought whereby to charge any person upon any contract of lands' tenements or hereditaments or any in- terest in or concerning them, unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto lawfully authorized ; As by the said act may appear ; and this defendant avers that neither he this defend- ant nor any person by him lawfully authorized, did ever make or sign any contract or agreement in writing for making or executing any lease to the said complainant of the same premises or any of them or of any part or parcel thereof or to any such effect as by the said bill is suggested, or any memorandum or note in writing of any agreement whatsoever for or concerning the demising or leasing or making or executing any lease of the said premises or any of them or any part or parcel thereof to the complainant ; And therefore this *defendant doth plead the said act of parliament and the matters [ *655 ] 655 PLEAS. aforesaid in bar to so much and such part of the said bill as seeks to compel this defendant or any person or persons claiming under him to execute a lease to the complainant of the several lands and tene- ments in the bill mentioned or any of them or any part or parcel thereof pursuant to the said pretended agreement and as to any the relief thereby prayed touching such lease and agreement, and humbly prays the judgment of this honorable court whether he shall be com- pelled to make any further or' other answer, &c. XIII. Plea of the statute of limitations to a bill h/ an administratrix for account. The plea of, &c. This defendant by protestation, &c. [^seeform No. I. p. 640,] to all the discovery and relief in and by the said bill sought from or prayed against this defendant, other than and except such parts of the said bill as seeks a discovery of or concerning the age of T. N. P. in the said bill named, or a discovery whether the said T. N. P. out of res- pect or affection for the said T. P. his father did not forbear or was not unwilling to take or use any compulsory measures for obtaining a settlement of the accounts of the matters in the said bill mentioned, this defendant doth plead in bar, and for plea saith that by an act of parliament made and passed in the 21st year of King James the the First intituled, " An act for limitation of actions and for avoiding suits at law," it was enacted, &c. [stating the act] ;(14) And this de- fendant for further plea saith that if the said complainant either in her own right or as administratrix of the said S. N. deceased, or as administratrix of the said personal estate of R. N. deceased in said bill named or otherwise ever had any cause of action or suit against this defendant or against the said T. P. this defendant's testator for or concerning any of the matters in the aforesaid bill of complaint mentioned which this defendant doth in no sort admit, such cause of action or suit did accrue or arise above six years before the filing of the complainant's bill of complaint, and above six years before serving or suing out process against this defendant to appear to and answer the same bill ; and the said T. N. P. was not at any time within up- wards of six years before the filing of the complainant's bill, or within upwards of six years before the serving or suing out process against this defendant to appear to and answer the said bill, nor hath the complainant at any time since the death of said T. N. P. been under any of the disabilities mentioned and described in the said act of parliament ; And this defendant for further plea saith that neither r *656 1 ^^ t^'s defendant nor to *his knowledge or belief the said T. P. de- ceased this defendant's testator did at any time within six years before (14) C. 16, s. 3 ; and see Ld. Red. Tr. PI. p. 269 ; Beames on Pleas, p. 161, and note (4), ib.; 15 Ves. 198; 18 Tes. 286; 19 Ves. 185. PLEAS. 656 exhibiting the said bill or serving or suing out process against this defendant to appear to and answer the same, promise or agree to come to any account for or to pay or any ways satisfy the said com- plainant any sum or sums of money for or by reason of any matters transactions or things in the complainant's said bill of complaint charged or alleged ; All which matters and things this defendant doth aver to be true, and is ready and willing to maintain and prove as this honorable court shall award ; and he doth plead the same in bar to the whole of the said bill except such parts as aforesaid, and doth humbly demand the judgment of this honorable court whether he this defendant ought to be compelled to make any further or other answer to such parts of the said bill as he hath pleaded unto ; and this de- fendant not waiving or relinquishing their said plea, &c. [as in p. 644,] he this defendant answereth and saith he believes that the said T. N. P. attained his age of twenty-one years in or about ; and this defendant doth not know or believe that the said T. N. P. for any time whatsoever, forebore or was unwilling out of respect or af- fection for the said T. P. his father to take or use any compulsory measures for obtaining any settlement of the accounts in the bill mentioned : Without that &c. *XIV. Plea of the statute of limitations to so much of a hill as sought a discovery of title-deeds, and of the defendant's title to the estates in question, supported by averments showing an uninterrupted pos- session for sixty years and upwards in the defendant and the party through whom he claimed, accompained by an answer to so much of the bill as required a discovery of the time when the party through whom the plaintiff claimed was seised of the estate.{15) The plea of T. L. defendant, to part, and his answer to the residue of the bill of M. B. complainant. This defendant by protestation, &c. [see form No. I. p. 640,] as to so much of the said bill as seeks to have any discovery from this defendant of all or any or either of the deeds writings evidences conveyances and assurances in this defendant's custody knowledge or power, touching or concerning the manor rectory lands tene- ments grounds and hereditaments in the said bill mentioned or the right or title thereof, or as seeks a discovery of what estate right title or interest this defendant hath in or to the said premises in the said bill mentioned, this defendant doth plead thereto, and for plea saith that by an act of parliament made in the 21st year of the reign of *King James the First, intituled, " An actfor limitation of actions and [. *657 ] for avoiding suits at law, " it was enacted that no person or persons (15) See Ld. Ked. Tr. PI. p. 258, 271 ; Beamea on Pleas, 161, and p. 331, where st form of plea of forty years possession without account is to be found. 657 PLEAS. should at any time thereafter make any entry into any lands tene- ments or hereditaments, but within twenty years next after their right or title should first descend or accrue to the same ; And in default thereof such persons so not entering and their heirs should be utterly excluded and disabled from such entry after to be made ;(16) And this defendant doth aver that J. J. in the said bill named, and under whom the said complainant claims title to the said premises or any other person for his use or in trust for him, was not at any time within the space of twenty years next before his the said J. J.'s death in the possession or in the receipt of the rents or other profits of the manor rectory lands tenements grounds and hereditaments and other the premises mentioned in the said complainant's bill or any part thereof ; And this defendant doth likewise aver that the said J. J. at his death left E. J. his brother and heir at law ; And that the said E. J. or any person for his use or in trust for him was not in his life-time and after the death of the said J. J. in the possession or in receipt of the rents or other profits of the same premises or any part thereof; And this defendant doth likewise aver that the said com- plainant or any person under whom he claims or any other persons or person for his or their or any of their use or in trust for him or them or any of them, were not nor was after the death of the said E. J. to the time of filing the said complainant's bill in the possession or in the receipt of the rents and other profits of the same premises or any part thereof ; And this defendant doth also aver that the said complainant or any person under whom he claims or any other per- son or persons for his or their or any of their use or in trust for him or them or any of them was not nor were within twenty years next before the filing of the said complainant's bill in the possession or in the receipt of the rents or other profits of the same premises or any part thereof ; And this defendant doth aver that E. B. the grandfather of this defendant's wife was in the year 1762 for the space of fifty years and upwards then last past in the continual peace- able and uninterrupted possession and enjoyment by himself and his tenants of the said manor rectory lands tenements grounds and here- ditaments and every part thereof, and continued so to be until this defendant entered thereupon in the said year 1762, in which year this defendant entered upon the said premises ; And he this defendant from that time to the time of filing the said complainant's bill [1770] was in the continual peaceable and uninterrupted possession and en- joyment thereof by himself and his tenants, and is now in the actual possession and receipt of the rents and profits thereof; And this de- fendant doth plead the said act of parliament and such possession and enjoyment as aforesaid to so much of the said bill as is hereinbefore pleaded to ; And this defendant humbly prays the judgment of this honorable court whether he ought to make any further answer to so much of the said bill as is hereinbefore pleaded to; And this defendant [ *658 ] *not waiving his said plea but wholly relying and insisting thereon, for answer to the residue of the said bill or so much thereof as this defendant is advised is material or necessary for him to make answer (16) 0. 16, s. 1. piiEAS. 658 unto, answereth and saith he believes it to be true that J. J. in the said bill named was in or before the year 1670 and not since that year seised or well entitled to him and his heirs in fee-simple in pos- session of in and to the manor and rectory of B., and divers lands tenements grounds and hereditaments thereunto belonging and there- with held and enjoyed by the said J. J. and his ancestors as their family estate situate and being at B. in the county of : With- out that, &c. *XV. Plea of a former suit depending for the same matters in bar to a bill for account.{11) The joint and several plea of R. H. and G. H. defendants to the bill of complaint of R. S. and P. D. exe- cutors of the last will and testa- ment of J. P. deceased, on behalf of themselves and all other the cre- ditors of G. S. deceased, complain- ants. * These defendants by protestation, &c. [see form No. I. p. 640,] do plead in bar to the said bill, and for cause of plea severally say that the said complainants together with R. C. since deceased did in or as of Michaelmas Term 1802 exhibit in this honorable court their bill of complaint which was afterwards amended against J. S. and these defendants and G. S. now deceased, J. C. now deceased, and N. N. now deceased, thereby praying amongst other things that &c. [stating the prayer^ ; And these defendants for plea severally further say that they put in their joint and separate answer to the said amended bill, and which suit is now depending in this honorable court; And these defendants do aver that the said bill now ex- hibited against these defendants by the said complainants is for the same matters as the amended bill before exhibited by the said com- plainants and the said R. C. deceased against these defendants and the said J. S. and the said G. S., J. C. and N. N. now respectively deceased, to which these defendants have appeared and answered, and which suit is still depending and undetermined ; and therefore these defendants do plead the said former bill and answer in bar to the said complainant's now bill, and humbly *pray the judgment of this [ *659 ] honorable court whether they shall be compelled to make any fur- ther or other answer thereto ; And these defendants pray to be hence dismissed with their reasonable costs and charges in this behalf most wrongfully sustained. {\1) See Ld. Red. Tr. PI. 246, 1, 4th edit. ; Beames on Pleas, p. 134, 6, and p. 330 where a form of a similar plea is to be found ; Crofts v. Wortly, 1 Oh. Ca. 24] ; Foster' V. Vassal, 3 Atk. 587; Urlin v. Hudson, 1 Vern. 331; Devie v. Lord Brownlow 2 Dick. 611. 659 PLEAS. *XVI. Plea of another will in bar to a bill by a devisee for redemp- tion.{18) The plea of, &c. This defendant by protestation, &c. [see form Wo. I. p. 640,] and for plea saith that the will and testament in writing of R. M. in the said bill named bearing date on or about the 27th day of October, 1807, and by which it is in the said bill stated that the said R. M. did thereby give and devise all the estate in the said bill mentioned called M. together with the slaves and all the chattels implements and other property thereupon unto the said complainant and this defendant, to hold the same unto the said complainant and this de- fendant their heirs and assigns as tenants in common and not as joint- tenants, and by which it is also stated in the said bill that the said testator did give devise and bequeath all the rest and residue of his real and personal estate of, what nature or kind soever and where- soever situate unto the said complainant and this defendant as tenants in common absolutely and forever, and under which will the said com- plainant claims, was not the last will and testament of the said R. M. for this defendant saith that the said R. M. duly made and published another will, which was his last will and testament in writing, bear- ing date 15th April. 1808, and that such will was executed by him and attested as by law is required for passing real estates, and is in the words and figures following (that is to say) " Th,is is the last will and testament of me R. M. late of, &c. but now of, &c. gent. I di- rect," &c. [stating the will verbatim, and also the attestation clause.'^ And this defendant doth aver that the estate devised by the said last mentioned will to this defendant and her heirs is the same estate of which the said complainant seeks an account of the rents and profits, and which he seeks to redeem by his said bill ; And this defendant therefore avers that the said complainant hath not any title to or interest in the rents and profits of the said estate in his said bill mentioned, nor in the equity of redemption thereof, or the title-deeds papers or writings relating thereto ; All which matters this defend- ant doth plead in bar to the said bill, and to the discovery and relief sought thereby, and humbly demands the judgment of this court whether she shall be compelled to make any further or other answer to the said bill, and she prays to be hence dismissed with her reason- able costs in this behalf most wrongfully sustained. (18) See Ld. Red. Tr. PI. p. 263; Beames on Pleas, 248; 2 Ves. & B. 261. REPLICATIONS. *660 *CHAPTER XII. REPLICATIONS. *I. A general replication to a defendant's answer.{l) The replication of A. B. Complainant to the answer of C. D. Defendant. This repliant saving and reserving unto himself all and all man- ner of advantage of exception to the manifold insuflBciencies of the said answer, for replication thereunto saith that he will aver and prove his said bill to be true certain and sufficient in the law to be answered unto, and that the said answer of the said defendant is uncertain untrue and insuflBcient to be replied unto by this repliant ; Without this, that any other matter or thing whatsoever in the said answer contained material or effectual in the law to be replied unto, confessed and avoided traversed or denied is true ; All which matters and things this repliant is and will be ready to aver and prove as this honorable court shall direct, and humbly prays as in and by his said bill he hath already prayed. *II. A special replication to the answers of several defendants. {^)' The replication of John Marshall complainant to the several answers of Holdsworth Newman, John Baring, William Newman, and Richard Newman, defendants to the said complainant's original and amended bill. This repliant saving to himself all and all manner of advantage of *exception to the manifold insufficiencies of the said answers, for and [ *661 J by way of replication saith that his said original and amended bill of complaint exhibited into this court against the said defendants and all and every the matters, &c. therein contained are true certain and (1) A replication is the plaintiffs answer or reply to the defendant's plea or an- swer. Formerly if the defendant by his plea or answer offered new matter, the plaintiff replied specially, the consequence of which was a rejoinder by the defendant, but special replications are now out of use; if however aplaintiff is disposed to con- trovert a part of the case made by the defendant's answer, and to admit the rest, he may still put in a replication so far special that it is confined to the particular matter controverted, instead of being a general denial of the truth of the whole answer, and then the defendant is put only to proof of the matter replied to. Ld. Red. Tr. PI. p. 321, 2, 4th ed. (2) This and the preceding form are taken from Hide's Chancery Pr. 285, 6. A special replication is always signed by counsel. 661 REPLICATIONS. sufficient in the law to be answered unto by the said defendants, and that the answers of the said defendants are untrue uncertain and in- sufficient in the law to be replied unto by this repliant, save and ex- cept that this repliant doth admit it to be true as in the said answers some or one of them is by the said defendants some or one of them alleged, that the mortgage in the said original and amended bill men- tioned to be made by Philip Marshall deceased to Richard Newman and Robert Newman deceased and therein respectively named, and bearing date the 2d day of June 1754, was made and entered into ■ between them of and concerning and comprehended all the said Philip Marshall's then plantations and meadows in Newfoundland and in the said original and amended bill and the said defendants' said answers respectively mentioned, and that the same plantations and meadows were or are all situate and being in St. John's New- foundland aforesaid in the said bill also mentioned ; and this repliant doth moreover admit it to be true as in the said answers of the said defendants some or one of them is alleged, that on or about the 2d day of October 1775, the said Philip Marshall did settle an account with an agent of or for the said Richard Newman then deceased and in the said bill named, or of or for his executors, of and concerning all and every sum and sums of money therefor due and owing from the said Philip Marshall to the said Richard Newman and Robert Newman or either of them their or either of their executors or ad- ministrators, and did by an agreement of that date in writing under his hand and seal admit, and this repliant doth now hereby admit and acknowledge, that on the said 2d day of October 1755, there was due and owing from the said Philip Marshall on the said security of all the said -plantations and premises, and on the balance of such , accounts the full sum of 5171. 3s. in the said answers or some or one of them mentioned and claimed as the then balance of such accounts and payable with interest ; Without that, that there is any other matter or thing in the said defendants' said answers contained mate- rial or effectual for this repliant to reply unto, and not herein and hereby well and sufficiently replied unto confessed and avoided tra- versed or denied is true ; All which matters and things (save and except as aforesaid) this repliant is ready to aver and prove as this court shall award, and prays as in and by his said original and amended bill he hath prayed. John Heath. EXAMINATIONS. *662 *CHAPTER XIII. EXAMINATIONS. *I. Form of examination of a defendant in the Master's office upon interrogatories settled hy a Master pursuant to a decree. In Chancery. Between A. B. . . . Complainant, and CD. . . . Defendant. . The answer and examination of the said de- fendant C. D. to interrogatories exhibited on he- half of the said complainant A. B. for the ex- amination of the said defendant before Sir J. S. bart. one of the Masters of this court to whom this cause stands referred, pursuant to the decree made on the hearing of this cause dated . To the first interrogatory this examinant saith that, &c. *II. Examination of executors in the Master's office, referring to [ *663 ] schedules annexed.(\) In Chancery, Between, &c. [naming all the parties, plain- tiffs and defendants.2 The examination of the said complainants J. W. and A. G. the executors of S. P. deceased in the pleadings in this cause named, upon interrogatories exhibited by the said defendants before J. W. esq. one of the Masters of this honorable court pur- suant to the decree made on the hearing of this cause bearing date the day of . 1st. — To the first interrogatory these examinants say that shortly after the decease of S. P. the testator in the pleadings in this cause (1) In stating accounts, if a defendant lias set forth in tlie schedule all the receipts and payments down to the time of filing his answer, he must in his examination state only the subsequent receipts and payments, and carry on the account from the foot of his answer to the time of putting in his examination; for although the interro- gatories extend to a wide sweeping inquiry into all receipts and payments, a repe- tition of those comprised in the schedule to the answer might subject the examina- tion to a reference for impertinence ; so on the other hand a defective account to a 663 EXAMINATIONS. named which happened on or about the 3d day of December which was in the year of our Lord , these examinants employed Tl N. then a licensed appraiser and auctioneer in the city of Bristol but now deceased, to take an inventory and make an appraisement, and the said T. N. did as these defendants believe take an inventory and make ^n appraisement, of all the household goods and furniture linen and other personal estate and effects of the said testator then being in and about his dwelling-house, situate in, &c. (other than and except such parts thereof as consisted of chattel interests in houses or lands, and money due on mortgages bonds and promissory notes, and also other than and except such parts of his said personal estate as were and are by the said testator in and by his said will and codi- cil specifically given bequeathed and disposed of,) and such household goods household furniture and linen so inventoried and appraised were afterwards sold and disposed of by public auction by the said T. N., and such inventory and appraisement so made and taken by the said T. N. is now in the custody or power of this examinant A, [ *664 ] Gr., and these examinants crave leave to *refer thereto ; And these examinants say that they did not make any inventory or particular of the real estates or of- the chattels real or securities of their said testator, but the same are nevertheless hereinafter in this their ex- amination fully and particularly mentioned described and set forth according to the best of their knowledge and belief. 2d. — To the second interrogatory these examinants say that the said S. P. the testator in the pleadings in this cause named was at the time of his death in manner hereinafter mentioned possessed of interested in or entitled unto a considerable personal estate consist- ing of leases for terms of years absolute and determinable with lives, and also of moneys due and owing to him upon mortgages bonds and promissory notes, rents and arrears of rent, and the several household goods and furniture contained and set forth in the said • inventory and appraisement, but no cash to the knowledge or belief Reference to of these examinants ; And these examinants say that in a schedule the 1st Sche- hereunto annexed entitled " The first schedule," and which they ^ *' pray may be taken as a part of this their examination and to which they crave leave to refer, they have according to the best of their knowledge remembrance information and belief, each speaking for himself, set forth a full true and particular account of all the goods chattels rights credits debts personal estate and effects whatsoever of or belonging to their said testator the said S. P. at the time of his death, with the several and respective natures species kinds sorts quantities qualities and true and utmost values thereof respectively, reference for insufficiency; and if for the purposes of spleen it runs into scandal, it might be referred and expunged. An examination is subject to all the infirmities of an answer; the admission should be so framed that the receipt and application should be in the same sentence, forming one transaction, and not distinct matters, and should be uno fiatH, otherwise the ad- mission would be evidence of the receipt, and the application must be proved by evidence; 1 Turn. Ch. Pr. p. 584, 6th ed. ; Blount v. Burrow, 1 Ves. jun. 546; Ridge- way V. Darwin, 1 Ves. 404; Thompson v. Lambe, ibid. 587; Robinson v. Scotney, 19 Ves. 582. Examinations do not require to be signed by counsel ; Bonus v. Flack, 18 Ves. 287, 2d ed. ; Jac. Rep. 224 ; and see Eeme v. Price, 1 Sim. & Stu. 99. EXAMINATIONS. 66^ distinguishiag what part thereof consisted of chattels real from the said testator's other personal estate; And these examinants also say that their said testator was at the time of his death seised of a freehold estate consisting of two messuages or dwelling-houses coach-houses stables and other buildings situate in aforesaid, but no other freehold estate to the knowledge or belief of these examinants ; And these examinants in another schedule hereunto Reference to annexed entitled, " The second schedule," which they pray may be the 2d Sche- taken as a part of this their examination and to which they also '^ ' crave leave to refer, have according to the best of their knowledge, information and belief set forth a true and particular account of the said freehold estates of the said testator and of the yearly value thereof and of all rents due and in arrear for such freehold estates at the time of their said testator's death ; And in another schedule Reference to hereunto annexed entitled " The third schedule," which they pray ^^]^^ ^^^^' may be taken as a part of this their examination and to which they ' also crave leave to refer, these examinants have set forth a true account of how much and what particular parts or part of the said testator's personal estate or of such rents and profits have or hath at any time or times and when been received got in or possessed by these examinants respectively, or by any person or persons and whom^by their or either of their order or direction privity or con- sent, or for their or either of their use respectively, with the several and respective particulars and the value thereof, and how and when and by whom and for what use or purpose the same have been sold paid applied administered or disposed of, and how much and what part thereof doth now remain in the hands of these examinants *and of each of them and what is become thereof; And these exami- [ *665 ] nants also say that in the same schedule they have to the best of their knowledge information and belief set forth a true and particular ac- count of what debts due and owing to their said testator's estate are now standing out and unreceived either wholly or in part and from whom the same are so respectively due and owing, and why the same have not been got in and received by them ; And they have also in the same schedule set forth an abstract or list and short account of all securities now in their hands custody or power and of all debts due and owing to their said testator's estate. 3d. — To the third interrogatory these examinants say that the said S. P. was at the time of his death indebted unto several persons in divers sums of money to a considerable amount ; And these exami- Reference to nants have in another schedule hereunto annexed entitled " The ** *'" ^*^' fourth schedule," which they also pray may be taken as part of this ' ' their examination and to which they crave leave to refer, set forth according to the best of their respective knowledge and belief and so far as they are able, a full true and particular account of all sums of money paid by these examinants in discharge of debts due and owing from their said testator at the time of his death, and to whom such debts were due, and for what and when and by whom such debts were paid or satisfied respectively ; And these examinants believe that all such sums of money so paid as aforesaid were really due and owing from their said testator at the time of his death, and that nothing 47 665 EXAMINATIONS. I now remains due for or on account of any debts or debt-of their said testator, so far as such debts have come to their knowledge respec- tively : And these examinants say that they have also paid or ex- pended divers large and considerable sums of money for or on account of the said testator's funeral expenses and for the probate of his will, and other expenses relating to his affairs ; and these examinants have in the last mentioned schedule set forth an account of such sum or sums of money as they have so respectively paid on the accounts aforesaid, and also the times when and the persons to whom the same have been so paid, or how the same have been expended ; And these examinants verily believe that no further sum or sums of money now remain due or owing to any person or persons in respect of the debts or funeral expenses of the said testator or otherwise on account of his estate, except the cost and charges of these examinants as executors as aforesaid, and particularly the costs of the suit. [ *666 ] **III. Examination of femes covert entitled to shares of money in a cause ; toith the certificate of the commissioners and affidavit of the attesting witness. Between, &c. \naming all the parties, plaintiffs and defendants.'\ The examination of the plaintiffs Hannah D. and Mary G., in pursuance of an order made in this cause bearing date the day of 1786. Whereas it is ordered by the said order of the day of last that the plaintiff Hannah the wife of the plaintiff R. D. who resides at , and the plaintiff Mary the wife of the plaintiff I. G., who resides at , should respectively attend B. B. of, &c. esq. the Rev. W. L. of, &c. the Rev. J. Q. of, &c. and H. D. of, &c. or any two of them, and the said plaintiff Hannah D. was to be solely and secretly exam- ined by them separate and apart from her said husband, how and in what manner and to what uses she was willing and desirous the third part of the sum of 5151. 10s. 5c?. cash in the bank in the said order mentioned should be paid and applied, and the said plaintiff Mary G. was also to be solely and secretly examined by them separate and apart from her said husband, how and in what manner and to what uses she was willing and desirous her third part of the said cash in the bank should be paid and applied, and the said E. B., W. L., J. Q. and H. D. or any two of them who should examine the said Hannah D. and Mary G. were to take their examinations respectively in writing, and the same were to be signed by them respectively, and the said E. B., W. L., J. Q., and H. D. or any two of them who should take such examina- tions were to certify the same in writing, and the signing of the said Hannah D. and Mary G. and such certificates were to be verified EXAMINATIONS. 666 by affidavit, and upon the return of such certificates such further order should be made as should be just : Now I the said plaintiflf Hannah D. being solely and secretly examined by the said E. B. and H. D. separate and apart from the said plaintifl" R. D. my husband, how and in what manner and to what uses I the said plaintiff Hannah D. am willing and desirous my third part of the said sum of 575Z. 10s. 5d. cash in _the bank in the said order men- tioned should be paid and applied, I the said plaintiff Hannah D. do say and declare that I am willing and desirous that the sum of 191Z. 16s. lOd. being my third part of the said sum of 5151. 10s. 5d. cash in the bank in the said order mentioned may and shall be paid to the said plaintiff R. D. my husband to and for his own use and benefit, and I the said plaintiff Hannah D. do hereby freely and voluntarily consent that the same may be paid to him accordingly ; And I the said Mary Gr. being solely and secretly examined by the said E. B. and H. D. separate and apart from the said plaintiff J. G. *my husband how and in what manner and to what uses I the said [ *667 ] plaintiff Mary G. am willing and desirous my third part of the said sum of 5751. 10s. 5d. cash in the bank in the said order mentioned shall be paid and applied, I the said plaintiff Mary Gr. do say and declare that I am willing and desirous that the said sum of 1921. 16s. lOd. being my third part of the said sum of 575?. 10s. 5d. cash in the bank in the said order mentioned may and shall be paid to the said plaintiff J. G. my husband to and for his own use and benefit, and I the said Mary Gr. do hereby freely and voluntarily consent that the same may be paid to him accordingly ; In witness whereof we the said plaintiff Hannah D. the wife of the plaintiff R. D. and the said plaintiff Mary Gr. the wife of the said plaintiff J. Gr.. have here- unto signed our names respectively the day of 1786. Hannah D. Witness Wade Smith. Maet G. \_Endor8ed.'] (A) This is the paper referred to by the afiidavit of Wade Smith, sworn to by him this day of 1786, when the same paper-writing was produced and shown to the said deponent. COMMISSIONERS CEKTIFICATB. Between, &c. [naming all the parties.^ To the Right Honorable, &c. We E. B. of esq. and H. D. of gent, do hereby cer- tify unto your lordship that pursuant to an order made by your lord- 6.67 EXAMINATIONS. ship in this cause bearing date the day of 1786, we have been attended by the plaintiff Hannah the wife of the plaintiff R. D. who resides at and by the plaintiff Mary the wife of the said plaintiff J. Gr. who resides at respectively, and we have in pursuance of the said order examined the said plaintiff Hannah D. solely and secretly separately and apart from the said plaintiff R. D. her husband, how and in what manner and to what uses she the said plaintiff Hannah D. was willing and desirous the third part of the sum of 575?. 10s. 5d. cash in the bank in the said order mentioned should be paid and applied, and we did at the same time read the said order to her and explain to her the purport and effect thereof, and we do certify unto your lordship that the said plaintiff Hannah D. did on such her examination say and declare she was willing and desirous that the sum of 1911. 16s. lOd. being her third part of the said sum of 5751. 10s. 5d. cash in the bank in the said order men- tioned might and should be paid to the said plaintiff R. D. to and [ *668 ] for his own use and benefit, *and she did thereby freely and volun- tarily consent that the same be paid to him accordingly ; And we do further certify unto your lordship that we have in pursuance of the said order also examined the said plaintiff Mary G. solely and secretly ' separately and apart from the said plaintiff J. G-. her husband, how and in what manner and to what uses she the said plaintiff Mary G. was willing and desirous her third part of the sum of 575?. 10s. 5d. cash in the bank in the said order mentioned should be paid and applied, and we did at the same time read the said order to her and explain to her the purport and effect thereof, and we do certify unto your lordship that the said plaintiff Mary G. did on such her examination say and' declare she was willing and desirous that the sum of 191Z. 16s. lOd. being her third part of the said sum of 575?. 10s. 5d. cash in the bank in the said order mentioned might and should be paid to the said plaintiff J. G. her husband to and for his own use and benefit, and she did thereby freely and voluntarily consent that the same be paid to him accordingly, and we took down such the examinations declarations and consents of the said Hannah D. and Mary G. in writing, and they thereupon signed the same respectively as thereby now appears. Witness our hands the day of 1786. E. B. Witness Wade Smith. H. D. [JSndorsed.'] (B) This is the paper-writing referred to by the affidavit of Wade Smith, sworn to by him this day of 1786, when the same paper- writing was produced and shown to the said deponent. EXAMINATIONS. 668 AFFIDAVIT. Between, &c. [naming all the parties.] Wade Smith of , gent, maketh oath and saith that he was present and did see Hannah D. wife of the plaintiff R. D. and Mary G. wife of the plaintiff J. Gr. respectively sign the examina- tion declaration and consent being the paper-writing marked with the letter (A), and saith that he was also present and did see B. B. of , esq. and H. D. of , gent, sign the certificate marked with the letter (B), and that the names of Hannah D. and Mary G. now appearing set to the said examination declaration and consent as the names of the said Hannah D. and Mary G. and the names E. B. and H. D. now appearing set to the said certificate as the parties signing the same are of the respective proper hand-writing *of the said Hannah D. and Mary G. and E. B. and H. D., and that [ *669 J the name " Wade Smith" now appearing set or subscribed to the said examination declaratiola and consent and also to the said certificate as a witness to the signing the same respectively, is and are respec- tively of the proper hand-writing of this deponent. Wade Smith. Sworn, &c. *IV. Examination of a feme covert upon a commission, as to her execution of a deed of settlement (under the 39th and 40 J *|3iii stated, the said complainant was or can be considered as a pur- chaser himself of the reversionary interest aforesaid of the said estate and premises and why, nor whether the said complainant was in fact the purchaser thereof, nor whether he did ever and when advance and pay the purchase-money or any part thereof out of his own proper moneys, nor whether the said J. F. R. was not the actual purchaser thereof in the manner and under the circumstances in the said bill stated, and if not why not. 6th. — For that the said defendant hath not in manner aforesaid answered and set forth whether the reversionary interest in the said estate so purchased by the said J. F. R. was not a free gift from him to the said complainant and for his advancement in life, and if not why not ; nor whether the said C. R. did not well know thereof at the time of the execution of the aforesaid conveyance to the said complainant, nor whether he did not fully concur and approve there- of, nor whether all or some and which of the rest of the creditors who had proved debts under the said commission did not also fully concur and approve of the same. 7th. — For that the said defendant hath not in manner aforesaid answered and set forth whether the sale of the reversionary interest aforesaid to the said J. F. R. did not take place in the month of June , or at some other and what time, nor whether the conveyance to the said complainant did not take place in the month of January , or at some other and what time. 8th. — For that the said defendant hath not in manner aforesaid answered and set forth whether upon the death of his father the said J. F. R. in the month of March or at some other and what time the said complainant did not enter into possession of the said estate under and by virtue of the said conveyance, nor whether he hath not ever since been in the undisturbed possession thereof with- out any claim being made by or on the part of the said C. R., or the validity of the transactions and conveyance in the said bill stated being questioned by him. 9th. — For that the said defendant hath not in manner aforesaid answered and set forth whether under all the circumstances in the EXCEPTIONS TO REPORTS, 675 said bill stated the said 0. R. hath any and what claim upon the said estate and premises, nor whether he is entitled to question the vali- dity of the said complainant's title to the said estate, nor whether the said complainant at any time and when executed any declaration of trust of the said estate and premises or any part thereof to or in favor of him the said 0. R. In all which particulars the said complainant excepts to the answer of the said defendant C. R. as evasive imperfect and insufficient, and humbly prays that the said defendant C. R. may be compelled to put in a full and sufficient answer thereto. EXCEPTIONS TO REPORTS. (1) *I. Uxceptions to a Master's report relating to co-partnership ac- counts. (2) In Chancery. Between T. J. Briggs , . Complainant, and J. Smith, Mark Briggs, &c. [inserting all the names'\ . . Defendants, by original and amended bill. And between, &c. &c. [stating the names of the parties,^ by supplemental bill. Exceptions (*) taken by the said M. B. one of the defendants in the said original and amend- ed bill and supplemental bill named, (f) to the report of J. S. H. esq. one of the Masters of the High Court of Chancery to whom the said (1) In what cases it becomes necessary to take objections to the draft of the Master's report as, a foundation for exceptions, see 2 Madd. Ch. Pr. 508 ; 2 Turn. Ch. Pr. 224, 6th edit. Where one general exception is taken to the Master's report including several dis- tinct matters, and the report appears right in any one instance, the exception must be overruled ; Hodges v. Solomans, 1 Cox, 249. (2) Where objections have been previously taken to the draft of the report, and any one of the" exceptions assign matter not comprised in the objection upon which it is intended to be grounded, that exception will be irregular, and as it sliould seem must be overruled ; 2 Turn. Ch. Pr. 224. As the matter of exception must, if not literally, at least in substance, be founded upon the objections to the draft of the report, the following notes marked (*) and (f ), will sufficiently point out to the student the frame of the objections on which the above exceptions were founded : ' * Objections taken by the said M. B., &c. f In framing objections insert these words : " to the draft of the report of," &o., [ *676 ] 676 EXCEPTIONS TO EEPOKTS. causes stand referred, made in pursuance of the decree made on the hearing of the said causes bearing date the day of . 1st Exception. — For that the said Master hath in and by his said report certified that he has charged this defendant, &c. &c. Whereas [ *677 ] *the said Master ought to have certified that he found this defendant had expended the further sum of, &c. 2d Exception. — For that the said Master hath in and by his said report certified that he found that all moneys, &c. 3d Exception. — For that the said Master hath in and by his report certified that he finds that the several balances and sums there- inbefore stated are the clear profits of such co-partnerships respec- tively as in the said report mentioned, except as to the sums there- inbefore mentioned to be unaccounted for by this defendant, and as to them he was unable to ascertain the clear profits of the said co- partnerships for the reasons expressed ; Whereas the said Master ought to have certified that the several sums of money stated by this defendant in his examination to have been the profits made by this defendant on, &c. &c. Wherefore the said M. B. excepts to the said Master's report, and humbly appeals therefrom to the judgment of this honorable court. *II. Exceptions to a Master's general report taken on the ground of the allowances made to the defendant an executor, in the accounts subjoined to the report by way of schedule. [S) In Chancery. Between Ann Freeman, &c., . . . Complainants, and W. Fairlie Defendant. Exceptions taken by the said complainants to the general report of one of the Masters of the High Court of Chancery to whom the said cause stands referred, made in pursuance of the decree made on the hearing of the said cause bearing date the 3d day of February 1816. 1st Exception. — For that the said Master hath in and by his "to be made in pursuance of," &c. And in the statements of the several causes of objectiop, instead of the words " hath in and by his said report certified," insert these words, " hath in and by the said draft of his report stated that," &c. And in- stead of " ought to have certified," Ac, insert " ought to have stated that," &c. And conclude thus : " Wherefore the said M. B. objects to the said draft of the said Mas- ter's report, and prays that he will re-consider and alter the same." Or thus: " In all which particulars the said defendant M. B. submits that the draft of the said re- port ought to be varied and rectified." (3) These exceptions were allowed ; see Freeman v. Fairlie, 3 Mer. 24. EXCEPTIONS TO REPORTS. 677 said general report and the second schedule to which it refers allowed to the said defendant by way of discharge Yarious sums of money amounting together to 1836 sicca rupees or thereabouts being equal to the sum of 229Z. sterling or thereabouts, by way of commission at the rate of 51. per. cent, on principal and interest moneys re- ceived by the said defendant on account of the personal estate of his testatrix in the pleadings named ; Whereas the complainants submit the *said sums of money by way of commission or any of them ought [ *678 ] not to have been allowed to the said defendant in respect of such his receipts, he the said defendant being an executor, and his tes- tatrix having by a codicil to her will desired her executors would each accept 500 sicca rupees as some small acknowledgment for the trouble they would necessarily have in the execution of the trusts reposed in them. 2d Exception. — For that the said Master hath in and by his said general report and the second schedule to which it refers allowed to the said defendant by way of discharge various other sums of money amounting together to 2768 sicca rupees or thereabouts, being equal to 346Z. sterling or thereabouts, by way of commissions at the rate of 51. per cent, on sums annually credited by the said defendant in his account as executor for interest from time to time in his hands, and with which interest he is charged in the first schedule to the said report ; Whereas the complainants submit the said defendant is not entitled to and ought not to have been allowed such last-men- tioned commisssion for the following (among other) reasons : — First, Because the sums credited for interest were not in fact received by the said defendant and invested as part of the personal estate of the said testatrix, but were (as appears by the two examinations of the said defendant) together with the aforesaid principal moneys mixed with the funds of the different mercantile houses in which the said defendant was and is a partner and used in their business of mer- chants ; And secondly. Because by virtue of the said decree the said Master is directed to inquire what interest and profit has been made by the said defendant of the personal estate of the said testatrix, and what balanc^ he had from time to time in his hands belonging thereto, and that therefore the complainants are advised the said Master is not at liberty to make to the said defendant any allowance or abate- ment from the interest admitted by the said defendant to have been made by him, or with which he has submitted to be charged. Wherefore, &c. *679 EXCEPTIONS TO REPORTS. **III. Exceptions to a Master's report in favor of a title fiepending on the validity of a recovery. {^ In Chancery. Between Christopher Shapland, Complainant, and Jane Smith, . . Defendant. Exceptions taken by the said defendant to the report of J. E. esq. one of the Masters of the High Court of Chancery to whom this cause stands referred by the decree made therein on the 18th day of May 1778, whereby it was re- ferred to him to see whether the plaintiif can make a good title to the estate in question to the defendant, and which report bears date the 27th day of November in the year 1799. 1st Exception. — For that the said Master has by his said report certified that he was of opinion that the plaintiff, together with the trustees and mortgagees, may make a proper conveyance by lease and release to the purchaser (under a good title) in fee, and that the term of fifty years therein mentioned, under the settlement of 1731 in the said report mentioned, the term of ninety years therein mentioned in the deed of September 1770 in the said report mentioned, and the term of one thousand years in the said report mentioned to have been created the 21st of April 1772, must be assigned to a trustee for the purchaser to attend the inheritan ce ; Whereas the said defendant apprehends that the said Master ought to have certified that a good title could not be made by the plaintiff to the said defendant for the reasons following: First., For that it appears by the abstract left by the said complainant with the said Master, that by the indentures of lease find release of the 15th and 16th days of August 1781 therein mentioned the estates in question were conveyed from and after the death of C. S. and Mary his then intended wife therein named, to trustees in moieties for the term of fifty years in each moiety, in trust for raising 10,000Z. for the younger children of the said marriage as the said C. S. should by his will direct ; and it appeared to the said Master that there were two younger children of the said marriage, viz. C. S. and R. S. ; But it has not been made to appear before the said Master that the said two several terms of fifty years have been assigned to attend the in- heritance, nor in whom the same are now vested ; And Secondly, For that it appears by the said abstract that J. S. who by the ab- stract is stated to be seised in fee of the lands in question, by his will dated the 21st of June 1770 devised the same to trustees to hold to them their heirs and assigns forever, upon trust and to and [ *680 "] *for the uses intents and purposes thereinafter mentioned; viz.m the (4) See Shapland J. Smith, 1 Bro. Ch. Ca. by Belt, p. 74; 2 Turn. Ch. Pr. 137. EXCEPTIONS TO REPORTS. 680 words following: "Upon trust that they the said J. B., J. S. and G-. S. and their heirs and assigns shall yearly and every year by equal quarterly payments by and out of the rents and profits of the said premises after deducting rates taxes repairs expenses and out- goings, pay such clear sum as shall then remain unto my brother C. S. and his assigns for and during the term of his natural life ; And from and after his decease, To the use and behoof of the heirs male of the body of the said C. S. lawfully to be begotten as they and every of them shall be in priority of birth; And in default of such issue, I give and devise the same unto C. S. son of the said Gr. S. for his life, and after his decease unto the said J. B., G. S. the elder, and J. S. and their heirs upon trust to support the contingent remainders from being defeated ; And after their decease, To the use and behoof of the right heirs of the body of the said C. S. lawfully begotten ; And in default of such issue, I give and devise the same unto his brother G. S. and the heirs male of his body lawfully issuing; And in default of such issue. To J. S. his brother and the heirs male of his body lawfully begotten ; And in default of such issue, To his brother G. S. and the heirs male of his body lawfully begotten; And in default of such issue, to the right heirs of the said J. S. forever;" And the said defendant therefore humbly submits to the judgment of this honorable court whether by virtue of such will the legal estate of and in the premises did not become vested in the said trustees, and whether the said 0. S.the son took any greater interest in the lands than for his natural life and to his first and other sons in tail, and whether therefore the recovery in the said abstract mentioned to have been suffered by the said C. S. in Michaelmas Term 1770 is not void, and whether J. S. the son of the said C. S., (which J. S. is now living but not a party to the suit mentioned in the report) hath not now as the first son of the mar- riage an estate tail in the said land ; And Thirdly, For that it ap- pears by the said abstract that by indenture dated the 6th day of October 1776 the said C. S. and B. his wife declared the uses of a fine levied by them in Trinity Term then last of the estates in ques- tion to and for the confirmation of certain . indentures of lease and release of the 13th and 14th days of July then last, whereby after reciting various mortgages, he conveyed the estates in question to trustees and their heirs in trust to be sold ; and for securing the payment of several sums of money therein mentioned, and also for securing a farther sum of 900Z., and for raising 6000?. upon trusts intended to be mentioned in an indenture of the 6th of October 1776, whereby the said C. S. in consideration of his marriage and of his wife's portion of 6000Z. and in consideration that he had pre- viously to his said marriage agreed to settle on her in case she survived him and on her children a competent provision, and in con- sideration that she had acknowledged the said fine, and of the love which he bore to his wife and children, and in performance of the said agreement, did give grant and appoint unto trustees therein named the sum of 6000Z. (parcel of the surplus money for which he had contracted to sell the estates to the plaintifl",) Upon trust that after the 6000Z. should be raised by the said trustees, they *should place the same out at interest and pay the same to the said [ *681 J 48 681 EXCEPTIONS TO REPORTS. C. S. for his life, and after his decease to the said E. S.^for her life, and after her decease, Upon trust to pay and divide the said £6000 to and among their then children, and to and among such other chil- dren as they should have, in manner therein mentioned ; but as it is not declared by the said indenture that the receipt of the trustees should be a suflScient discharge for the payment of the said sum of £6000, and it has not been made appear before the Master what the agree- ment was which is recited in the said deed to have been made pre- viously to the said marriage for making a provision for the wife and children, and neither the trustees for sale of the said estates nor the children of the said marriage are parties to the suit, therefore the said defendant humbly submits whether any proper discharge can be given for the said sum of £6000 (part of the purchase-money), and whether the purchaser can therefore safely pay the said purchase-money. 2d Exception. — For that as the said Master hath certified that the plaintiff together with the trustees and mortgagees may make a pro- per conveyance by lease and release to the purchaser under a good title in fee, and it appears by the abstract brought in before the said Master that there are various mortgages and incumbrances upon the estates in question in this cause, and none of such mortgages or deeds have been brought in or produced before the said Master, and therefore it did not appear to the said Master, nor is it stated by the said report what incumbrances there are upon the said estates, nor who are the necessary parties to make a legal conveyance thereof, supposing the said C. S. took an estate tail in the lands in question and legally barred the same and all the remainders over, therefore the said defendant humbly insists that the said Master ought either to have stated by his said report that the said C. S. could not alone make a good title to the estate in question, or should have set forth particularly who by name are necessary parties to make a legal con- veyance thereof. Wherefore the said defendant doth except to the said Master's said report, and appeals therefrom to the judgment of this honorable court. EXCEPTIONS TO REPORTS. *682 **IV. Cfeneral exception to a Master's certificate of insufficiency, under an order of reference to look into the plaintiff's hill and the defend- ant's answer and the exceptions thereto, and to certify whether the answer he sufficient in the points excepted to or not (the defendant not submitting to answer the exceptions).{5) In Chancery. Between J. S. and A. his wife, . . Plaintiffs, and G. B. and others, . . Defendants. An exception taken by the said defendant Gr. B. to the report of Sir J. S. bart. one of the Masters of this court to whom the said cause stands referred, bearing date the 15th day of Novem- ber 1822. For that the said Master hath in and by his said report certified that the answer of the said defendant G. B. is insufficient in all the points excepted unto ; Whereas the said Master ought to have disallowed all and every the exceptions taken by the said complainants to the said answer of the said G. B., and to have reported that the said answer is insufiBcient in all the points excepted unto by the said com- plainant. In all which particulars the said defendant G. B. ex- cepts to the said Master's said report. *V. Exceptions to a Master's report of insufficiency, after a second answer put in hy the defendant. In Chancery. Between J. S. and A. his wife, . Plaintiffs, and G. B. and others, . . Defendants. Exceptions taken by the said defendant G. B. to the report of P. H. esq., one of the Masters of this honorable court, made in this cause and dated the 14th day of March 1803. 1st Exception. — For that the said Master hath in and by his said report certified that thg said defendant's first and second answers put into the said complainant's bill are insufiicient as to part of the 10th exception taken by the said complainants to the said defendant's (5) See 1 Turn. Ch. Pr. 788, 9, 6tli edit. *683 EXCEPTIONS TO REPORTS. *said answers, and the said Master hath thereby certified that the said defendant hath not answered and set forth according to the best of his knowledge remembrance information and belief, for whose benefit and on whose account the trade in the pleadings in this cause and in the said report mentioned hath been carried on from time to time since the same ceased to be carried on for the benefit or on the account of the persons interested in the estate of A. Gr. in the said report named, or the income thereof; Whereas the said Master ought not to have so certified. 2d Exception. — For that the said Master hath in and by his said report certified that the said defendant's said answer is insufiicient in the 12th and 13th exceptions throughout, which the said Master ought not to have done. 3d Exception. — For that the said Master in and by his said report hath certified that the said defendant's said answer is insufficient in part of the 17th exception taken thereto by the said complainants ; Whereas the said Master ought not to have so certified. 4th Exception. — For that the said Master hath in and by his said report certified that the said defendant's said answer is insufficient as to the 19th, 20th, 21st, 22d, 23d, 27th, 28th and 29th exceptions throughout ; Whereas the Master ought not to have so certified. In all which said particulars the said defendant G. B. doth except to the said Master's said report, and humbly appeals therefrom to the judgment of this hon- orable court. *VI. Exceptions to a Master's certificate of insufficiency, under an order of reference to certify whether an examination of a creditor going in under the decree in a creditor's suit, to interrogatories settled hy the Master, is sufficient or noi.(6) In Chancery. Between A. P. and another, .... Plaintifis, and Ann D. widow, Defendant. An exception taken by C. C. who claims to be ad- mitted a bond-creditor of P. D. to the report of F. P. S. esq. one of the Masters of this court dated the 10th March 1810. For that the said Master hath in and by his said report certified [ *684 ] *that the answer and examination of the said C. C. to interro- gatories settled by the said Master for the examination of the said (6) See Stanyford v. Tudor, 2 Dick. 548 ; Paxton v. Douglass, 16 Ves. 239, 244 ; 2 Turn. Oh. Pr. 152, and the note ibid. FOKMS OE TITLES. C. 0. is insufficient ; Whereas the said master ought to have certi- fied that the said answer and examination is sufficient. In all which particulars, &c. 684 *CHAPTER XV. INTBRKOGATOKIKS. [ *685 J SECT. I. FORMS OF TITLES, AND OF THE FIRST AND LAST GENERAL INTERRO- GATORIES. In Chancery. Interrogatories to be administered to witnesses to be i. Title of in- produced sworn and examined in a certain cause now terrogatories, depending and at issue in his Majesty's High Court of f"/4TmTna- Chancery at Westminster, wherein W. C. is complain- tion of witnes- ant and M. W. is defendant, on the part of the said ses in chief on complainant. the part of the In Chancery. plaintiff. Interrogatories to be administered to witnesses to be produced sworn and examined in a certain cause now pending and at issue in his Majesty's High Court of Chancery at Westminster, wherein by original and amended bill J. H., C. H., &c., &c., C. H. and A. H. infants under the age of twenty-one years, by the said L. H. their father and next friend, C. V., &c. &c., are plaintiffs, and T. R. B., and D. his wife T. W. B., &c. and E. B. and H. B. infants under the age of twenty- one years, by the said T. R. B. their guardian, are defendants ; and wherein by supplemental bill J. H., C. H., &c., &c., are plaintiffs, and T. R. B. and D. his wife, &c., &c., are defendants on the part of all the said defendants except the said defendants J. J. and G. V. 2. Title of in- terrogatories in Chancery, for ezamina- tion of witnes- ses in chief on the part of some of sev- eral defend- ants. In Chancery. Between A. B Complainant, and CD Defendant. Interrogatories to be exhibited for the examination 3. Title of In- *of witnesses on the part and behalf of the said com- [ *686 ] 686 FOKMS OP TITLES. terrogatories, in Chancery, for examina- tion of witnes- ses on the part of the plaintiff pursuant to a In Chancery. decree. plainant, to be produced sworn and examined pur- suant to the decree made on the hearing of the said cause bearing date . Between A. B. and C. D. and E. J', and Q. H. , Complainants, . Defendants. 4. Title of in- terrogatories in Chancery, for examina- tion of oredi- ors and their witnesses pur- suant to a de- cree. Interrogatories to be exhibited by the said complain- ants before W. Gr. esq. one of the Masters of this honorable court, for the examination of the creditors of T. H. esq. deceased in the pleadings in this cause named and of their witnesses, in pursuance of the de- cree or decretal order of this court made on the hear- ing of this cause bearing date . 5. Title m In Chancery. Chancery, in the case of a contempt for signing a councellor's name to a bill without his authority. Interrogatories to be administered to L. M. solicitor to the bill filed in his Majesty's High Court of Chan- cery on behalf of A. B. against C. D. 6. Title of in- terrogatories, in Chancery, for examina- tion of a per- son de bene esse, pursuant to an order made in a cause. In Chancery. Interrogatories to be exhibited to D. G. of ■ -, for the examination of the said D. Gr. de henne esse in a certain cause lUow depending in the High Court of Chancery wherein J. P. is the plaintiff and J. S. and T. S. are the defendants, pursuant to an order of this honorable court bearing date , on the part and behalf of the said complainant. In Chancery. 7. Title of an interrogatory, in Chancery, for examina- tion of a per- son ^ro inter- esse suo, pur- suant to an or- der made on petition. Between H. R. an infant by J. M. his next friend, Plaintiff, and T. J. W. and J. S. B. Defendants. An interrogatory to be exhibited to G. R. of , before F. C. esq. one of the Masters of this honorable court, for the examination of the said G. R. pro inter- esse suo in certain premises in the pleadings in this cause mentioned pursuant to an order of this honorable court bearing date , made on the petition of the said G. R. FORMS OF TITLES. *687 *In Chancery. Between A. C. . . . Complainant, and T. H. . . Defendant. Interrogatories to be exhibited on the part of the 8. Title of in- said complainant for the examination of A. B. as to his terrogatories, interest in the event or decision of this cause, the said for^xamiZ- A. B. being a witness produced sworn and offered to be tion of a wit- examined in the said cause on the part and behalf of °ess as to his the said defendant. '"^^'^ '? *^« matters in is- In Chancery. Interrogatories to be exhibited to witnesses pursuant 9. Title of in- to an order of his Majesty's High Court of Chancery terrogatories, bearing date the day of -, on the part of A. B. » t'^^Tedftof complainant, and made in a certain cause there depend- witnesses ex- ing and at issue wherein the said A. B. is complainant amined on the and C. D. is defendant, to discredit the testimony of j^^"^ "^j*""^ ^^' E. F. and Gr. H. two witnesses heretofore examined in the said cause on the part of the said defendant(a) upon interrogatories. Mrst Greneral Interrogatory. Do you know the parties complainant and defendant [or, complain- As to the wit- ants and defendants] in the title to these interrogatories named or °6ss's ^J^°^- [any or] either and which of them, and how long have you known parties' in the them respectively or such [one] of them as you do know ?(&) Declare cause, the truth, and your utmost knowledge remembrance and belief here- in. [Or thus: Declare the truth of the several matters inquired after by this interrogatory, according to the best of your knowledge remembrance and belief with your reasons fully and at large. (c)] (a) If the witnesses were examined before commissioners, proceed thus : — "Upon interrogatories by virtue of a commission issued out of the said court directed to G. R. and others for the examination of witnesses in the said cause." (b) Sometimes the first interrogatory is also directed to an inquiry as to the wit- ness's knowledge of deceased persons, as thus : — " And did you or not know J. A. and C. his wife deceased the late grandfather and grandmother of the said complainant, and F. A. deceased the late uncle of the said complainant, in the pleadings of this cause respectively named, or any or either and which of them in their his or her life time, and for any and what length of time be- fore their his or her decease ?" Declare, &c. Or, to an inquiry as to the witness's business or profession, as thus : — " And what profession or business in life do you follow, and where and how long have you followed the same ?" Declare the truth, and your knowledge herein. (c) These are the general forms used in the conclusion of interrogatories according to circumstances ; in the subsequent pages reference is made thereto thus ; De- clare, &c. *688 INTBRROGATOEIBS. '^The concluding Qeneral Interrogatory. Lastly. — Do you know any other matters or things touching the matters in question in this cause which may tend to the benefit or advantage of the said complainant therein [or, the said defendants or any or either and which of them therein ?] If yea, Set forth the same and all the circumstances and particulars thereof fully and at large according to the best of your knowledge remembrance and be- lief as if you had been thereto particularly interrogated. Or thus: Where inter- Lastly. — Do you know or can you set forth any other matter or rogatories are tiding which may in any wise tend to the benefit of the said defend- the part of ^^^^ °^ 0^ either of them in this cause, other than the said defendants, some of sever- J. J. and G. V. ? If SO, Set forth the same, and all the circumstances ai defendants, and particulars thereof, according to the best of your knowledge re- membrance and belief togethej with your reasons at large. SECT. II. FORMS OF INTBRKOGATORIES FOR THE EXAMINATION OP WITNESSES IN CHIEF. (1) To prove the Whether or no did you at any time and when as the solicitor of delivery of the jj^jg ga,;^ complainants deliver to the said defendant or to any per- (1) Interrogatories for the examination of witnesses must be signed by counsel, and should only extend to points material and not confessed; Bea. Ord. 70, 71, 184, 273, 312 ; if the interrogatories are leading, or if they are scandalous or both scan- dalous and impertinent, they will be suppressed with costs ; see 2 Madd. Ch. Pr. 412 ; 2 Fowl. Ex. Pr. 127 ; White v. Fussell, 19 Ves. 112, 2d edit. Interrogatories framed thus, " Did you not do or see," &c. " Did yon not hear that," &c. are accounted leading. Where the plaintiffs christian name is mistaken in the title of the interrogatories the depositions cannot be read, nor will the court permit the title to be amended; White V. Taylor, 2 Vern. 435. Interrogatories administered to witnesses are all strung together, and the party by his agent points out the particular interrogatories or parts of interrogatories to which he wishes the witness to be examined. A witness may object to answering questions which may have a direct tendency to criminate himself, or render him liable to disabilities or pecuniary penalties, (see Paxton V. Douglas, 16 Ves. 242, 3,) but a witness cannot demur to being examined because the question is not pertinent to the matter in issue ; Ashton v. Ashton, 1 Tern. 165 ; if interrogatories be improperly exhibited to a witness (as if for instance he is a party interested) he must demur, and must state his reasons on oath ; see 2 Madd. Ch. Pr. 408; Parkhurst v. Lowten, 2 Swanst. 204; Bowman v. Rodwell, 1 Madd. Rep. 266 ; Nightingale v. Dodd, Mos. 229. Where a witness had in his examination omitted to state material facts, which he had stated in writing previously to his examination that he could depose to, the court INTBRBOGATORIBS. 688 son and wliom by name on his part any abstract of the title of the abstract of the *said complainants to the estates and premises in' the pleadings men- plaintiff's title tioned? Whether or no did the said defendant or any person and ^nt-^ who on his part at any time or times and when and how make to you r *689 1 any and what objection to the said title, and what answer did tou !" „ thereupon make, and if by writing set forth the same in the words objection was and figures thereof, and what afterwards passed between you and the made to the said defendant or any other person and whom on his part respecting *'*'* ' the said title or the agreement for purchase in the pleadings men- ^'"f ""^^^ ^^f' ±; J ooi^iiB sed relative to tioned ? Set forth, &c. the title or agreement for '~~^~^ purchasers. * Were you at any time and when and by whom and on whose To prove that behalf furnished with an abstract of the title of the said complainants ^'I'oHor'for to the premises described as lot 2 in the pleadings of this cause men- the defendant tioned ? And did you at any time or times apply to any person or per- was furnished sons and whom by name as the solicitor or solicitors of the said com- ^J.^'^^fof^'ltie plainants for a copy or abstract of the alleged lease under which the to an estate said premises were stated to have been let ? If yea, What passed be- sold by the tween you and the solicitors for the said complainants at the time of plamtiffs,— making such application relative to such alleged lease ? Declare, &c. tioa for an ab- stract of the lease under which the estate was stated to have been let, and what passed upon such application. * Had or not the said R. W. as you know or do for any and what To prove reason believe access to the said M. W. his wife, or was he or not in ^ug^and had her company or did he or not see her at any and what times or time access to his from the month of to ? And if yea. When and how often wife during a and at or about what times or time and for "what space of time at each par'icu ar pe- 11 11 • o TTT1 I'll ■ 1 Ti TTT riod anu time and where and on what occasion : Where did the said K. W. ^hen live or reside during all such period of time as you know or do or for and where he any and what reasons believe ?. Declare, &c. resided. * Whether or not did the said defendant 0. L. as you know or do To prove the for any and what reasons believe, deliver or cause to be delivered accJunt of^'^ unto the said S. D. P. in his life-time a written account or any writ- moneys owing ing purporting to be an account of some debt or debts or sum or from a deceas- sums of money that was or were due or owing by or from the said S. J^ person to D. F. to the said defendant C. L. ? If yea. In what character and ;„ ^^at Ian- ' language was such account or writing written or made out, and when guage written, or about what time was the same delivered to the said S. D. F., and when deliver- refused to permit him to be re-examined;. -dsSee v. Shiply, 5 Madd. 467; and see Lord Abergavenny v. Powell, 1 Mer. 130 ; Bott v. Birch, 5 Madd. 66. The examination of witnesses being foreigners must be in English, and the inter- rogatories must for that purpose be translated into the language of the deponents, and their answers translated bysworn interpreters; Lord Belmorer. Anderson, 4Bro. Oh. Ca. 90. 689 INTEREOGAffOKIBS. [ *690 ] ed, and the particulars of the debt, and whether the deceased examined the account ; • To prove that he delivered the same to the witness, that witness by his direc- tion made a copy thereof, and in what language, the delivery thereof to the deceased, that he exam- ined the same and made ob- servations thereon ; To prove the copy in the possession of the witness as an exhibit, and the hand- writing. That witness may translate the copy into English and the observa- tions made thereon, dis- tinguishing the parts writ- ten by the wit- ness and by other persons. To prove that witness was a party as a trustee to cer- tain deeds; That he was in the employ of certain per- sons, and that an account ex- isted between them and a deceased plaintiff ; That witness a trustee, sold certain houses ; what was or were tlie particular or particulars of such debt or *debts or sum or sums of money, and how much did the same amount unto in the whole as you know remember or believe ? Whether or no did the said S. D. F. as you know or do for any and what reason believe, peruse or examine the said account ? Did or did not the said S. D. F. ever deliver the said account to you ? If yea, When and about what time and for what purpose did he deliver the said account to you ? Did you or did you not by the order or direction of the said S. D. F. or otherwise and how, at any time and when make or write a true copy of the said account ? If yea. In what language and cha- racter and for what purpose was such copy made or written, and was or was not such copy at any time and when and by whom delivered to the said S. D. F. ? And did or did not the said S. D. F. at any time or times and when peruse and examine the said copy, and did he or did he not in his own hand-writing or otherwise and how and in what language and character and at or about what time or times make or write any and what minutes memorandums or observations on the said copy ? Whether or no is the paper-writing marked with the letter (B) and now produced by you or any and what parts and part thereof of your own hand-writing ? If yea, How much or what part or parts thereof is or are your own hand-writing, and how much and what part or parts thereof is or are of the hand- writing of any other person or persons and whom as you know or do for any and what reason believe ? Is or is not the said paper-writing marked with the letter (B) the copy which was made or taken by you of the aforesaid account ? If yea. Translate the said paper-writing marked with the letter (B) and all the minutes memorandums and observations written or made thereon into and set forth the same in the English language, and in making such translation, distinguish and point out the English of so much or of such part or parts of the said paper-writing as was or were written by you, and also the English of so much or of such part or parts of the said paper-writing as was or were written by any other person or persons and whom ? Declare, &c. * Were you or not a party as a trustee for sale or otherwise and how, to certain and what indentures of lease and release bearing date the 9th and 10th days of March 1792, in the pleadings in this cause stated, or to some or one and which of them ? And were you or not for some length of time and from and to what period in some and what manner in the employ of T. E. and G. D. both now deceased, in the pleadings in this cause named ? And do you or not by some and what means know whether some and what account did not exist between the said T. E. and G. D. or one and which of them in their or his life-time with W. J. deceased, the late plaintiff in this cause ? Did you or not as a trustee for sale as aforesaid, ever and when sell and dispose of the respective houses and premises of which you were a trustee for sale under such indentures of lease and release as aforesaid ? And was there or not some and what account open INTERROGATORIES. 690 and unsettled between the said W. J. deceased and the said T. That at tha E. and G. D. or with one and which of them at the time the said t™« °^ ^uch *houses and premises were respectively so sold and disposed of hy [ *691 ] you ? If yea, Was such account ever to your knowledge settled and sale an ac- adjusted between them or any and which of them, and was or not count existed such account an open and unsettled account at the time of the death "ween the de- of the said W. J. as you know or for some and what reason believe ? ceased piain- And if such account had ever been stated settled and adjusted between t'ff and certain the said T. E. and G. D. and the said W. J. in his lifetime, should °^^''^''''°'''- you or not from your connexion or by your employment with the said T. E. and Gr. D. or by some and what other means have known thereof? Do you or not know whether the said W. J. in his life-time Also to prove made or caused to be made any and what applications or application "^^ appiica- to the said T. E. and G. D. or to one and which of them for a state- ThTde'^eas'ed^ ment of or to come to a settlement of the said account existing be- plaintiff for a tween them^ ? If yea. Set forth the number of such applications and settlement ; the respective times or time in particular when the said W. J. made or caused to be made such applications or application, and the nature thereof, and when and by whom made, and in whose presence, and upon what occasions or occasion, and on or about what date in parti- cular was the last time the said W. J. made or caused to be made such application to the said T. E. and G. D. or to either and which of them, g^^^auhl^^'' and what passed between the said parties respectively at the respec- time of such tive times or time such applications or application were or was made ? applications. Declare, &c. * Were you or not present at any time and when at the stating To prove a of any and what account between the said complainant and the said statement of defendants touching or concerning the estate and effects of the said ^^eenThe''^' testator R. F. in the pleadings of this cause named ? If yea, Was or plaintiff and were or not any account or accounts touching such estate or effects defendants re- then settled between them, and was or not any and what balance JatOT?s*estate^' then settled and ascertained as due to any and which of the said par- ^hat balance ties, and was or not such balance then paid over, and if not, why and was ascertalu- for what reason ? Declare, &c. ^^1°^^ '^"®' ' and the pay- ment thereof. Whether or no did you at any time and when deliver to the said To prove the defendants or either and which of them, any bill for business done by delivery of an you on their or either and which of their account not connected with andThat^an ' the said cause, and whether or no did you at any time and when action was cause any and what proceeding to be commenced against the said commenced defendants or either and which of them for the amount of such bill ? r^^f t^r"^^' Declare, &c. amount. * Did you or not at any or either and which of the meetings be- To prove the tween you and the said inquired after by the last preceding in- production of terrogatory, produce or show unto the said all or any and which person con- 691 INXBRBOaATORIES. taining certain of the acknowledgments or memorandums to which his name appears [ *692 ] *to be subscribed, and which are written or contained respectively in acknowledg- the folios of the said produced book marked (A) ? And did the ments or me- said or any and which of such occasions or on any other and SgnedbyMm ^'^^* occasions or occasion and when in particular, say or declare and the decia- any thing and what unto you or unto any persons or person and rations made whom by name in your presence or hearing relative to such acknow- ^J ^'^ ''^'^" ledgments or memorandums, and to his name appearing to be sub- scribed thereto, and purporting that he had signed the same or any and which of them, or that his name appearing to be subscribed thereto or to any and which of them was in his own hand-writing or to any such or the like effect ? Set forth how and in what manner the said expressed himself at such times or time in relation thereto ? Declare. &c. To prove that * Whether or not did the said defendants or any and which of them the defendants commence an action at law against J. F. the agent of the said com- action ao-ainst pl^inants in the said bill named ? If yea. Set forth when such action the plaintiff's was Commenced, and the nature of and object of the action ? Whether agent, and or not did the said J. F. plead to such action ? If yea. Declare the naturethereof J^a-ture of his defence ; Whether or not did such action come on to be and of the de- tried ? If yea, Whether or not did the plaintiffs in such action get a fence thereto ; verdict ? If yea. Whether or not did the court of King's Bench set That the same aside such verdict and direct a new trial to be had of the said action ? tried that the Whether Or not did such new trial come on to be tried at the summer plaintiffs got a assizes held for the county of Y. for the year 1818 ? If yea. Were verdict which you present at such trial ? If yea. Declare to the best of your remem- B^set aside France what passed thereat, and how and in what terms the judge and directed a charged the jury ; Whether or not were the jury desirous to find a new trial ; special verdict ; Whether or not did the judge make a minute of it in That the same his notes, and if yea. Set forth the purport and effect of such minute ; ^^'f^fo^^o^ii ^ Whether or not was it agreed between the plaintiffs and defendant in O'SSIZGS, aQU , 'I'll ^11 1 Ti what passed tbe Said action that the amount ot the damages to be recovered by on the trial, the plaintiffs in the said action should be left to arbitration ? If yea, char"'^t"'lfr'^ Whether or not was any arbitrator appointed ? If yea, Has such jury. arbitrator ever made his award? If yea, Declare the damages awarded That the jury hy the Said abitrator to the plaintiffs in the said action. Declare, &c. were desir- ous to find a special verdict, the minute thereof made by the judge; The agreement to refer the amount of damages to arbitration, and what amount was awarded by the arbitrator. To prove ad- * Did you at any time or times and when and at whose request or yertisements jjj pursuance of any directions or instructions given to vou bv anv being inserted ' ji.i, ii.i'^.'' in the public person or persons and whom by name, cause any and what advertise- papers for the ment Or advertisements to be inserted in any and what public paper discovery of a or papers relating to or for the discovery of the said A. G., and was or whose dlrec- ^ ^^^^ ^^""^ advertisement or advertisements inserted in such public paper tion ; or papers at any time or times and when as you know or for any and INTERROGATORIES. 692 what reason believe ? Have you heard of the said A. G. or had you and whether any and what application or applications made to you with respect *'^® witness *to him or the matter comprised in such advertisement or advertise- [ *693 ] ments since the same was or were so inserted ? Declare, &c. ^^^ heard of the individual, or had any ap- plications respecting him since the advertisements. * Were you or not employed and when by the said complainant To prove that and defendant or either and which of them to prepare the agreement witness was in the said former interrogatory mentioned ? If yea, Had you any ""P'oyed in and what directions from the said defendants respecting the terms of agreement the said agreement, and concering the land-tax in the said agree- and the direc- ment mentioned, and what did the said defendant say to you or in ti"°s given re- your presence or hearing as to the said land-tax and the sum of 200?. terms"thereV to be paid by the plaintiff to the said defendant, and were you in- formed by either and which of the said parties for what considera- tion the said premium or sum of 2001. was to be paid ? Declare, &c. * Did you or not at any time and when hear the said complainant To prove a pa- make any proposition to the said defendant respecting his the said ™' agreement complainant's residing with the said defendant in his house, and was piafntirs^re-" any and what agreement come to between the said complainant and siding with the said defendant respecting such matter, and did you or not hear ^^^ defendant. upon that or any other and what occasion the said complainant make any and what promise to the defendant respecting the amount and nature of the recompense which the defendant was to receive from the said complainant for his residing in the said defendant's house ? Declare, &c. * Did you or not and by whose desire or direction make any and To prove that what division or allotment of the lands in the pleadings of this cause witness made mentioned ? If yea. To whom and when did you deliver such divi- of certain ° sion or allotment, and did or not the said defendant J. P. acquiesce lands, and to in or approve of such allotment and did he take possession of his whom and part or share ? Did you or not at any time afterwards and when nveTed the^al- review or reconsider such allotment and upon what occasion and by lotment; whose desire, and did you or not make any second allotment or any that defendant and what alteration in your former allotment, and was or not the said acquiesced division or allotment made by you a fair impartial and just division took'^t'osses- or allotment ? Declare, &c. sion of his share ; that witness afterwards reviewed the allotment, and by whose desire and what alterations he made therein. * Do you or not know whether the said complainant entered upon To prove that and enjoyed any and which of the lands in the pleadings in this cause ^^^ plaintiff mentioned in severalty or not ? If yea. State what particular lands jj^g i^ands ai^ were enjoyed by the plaintiff and what by the defendant. lotted to him " in severalty. 693 INTEKKOTrSTOETESr annuity. [ *694 ] To prove the * Are you acquainted with the manner of purchasing annuities on Ini" u?/ ^ ^^^^ *lives and the value thereof, and the way in which the same are secured in the public funds? If yea, How long have you been ac- quainted therewith ? What was the value of an annuity of 1. during the life of a person aged in the month of accord- ing to the method of computing the value of annuities upon lives, and according to the common and usual course of business in trans- actions of that nature ? Declare, &c. To prove that the plaintiff was employed by the defend- ant as her con- fidental attor- ney or agent, and for what period. * Was or not the said complainant T. C. at any time and when to your knowledge or belief employed as the attorney or agent of the said defendant S. A. ? If yea, Declare when the said T. C. was so employed by her or relative to her affairs, and for what length of time, and whether generally as the confidential attorney or agent of the said S. A. as you know or believe, and set forth the grounds upon which you found such your knowledge or belief; Declare, &c. To prove who was the author of a book or reputed so to be, and wheth- er it was au original com- position. * Look upon the book entitled now produced and shown to you at this the time of your examination, marked with the letter (A), and in the pleadings in this cause mentioned ; Who by name wrote or was the author or composer of the said book, or who was and is reputed so to be ? Is the said book an original composition, or a copy of any other and what work ? Declare, &c. To prove an act of bank- ruptcy by keeping house. * Did you or not know A. B. in the pleadings of this cause named, and previously to , and for any and what time before ? If yea. Did the said A. B. at that time and for any and what length of time before carry on any and what trade or business and where, and^do you or not previously to the said recollect any person and whom by name calling at the house or dwelling of the said A. B. for money, and was or not such person a creditor of the said A. B. and was or not the said A. B. at home at such time and did he or not see the person who so called, or what answer was given or sent to such per- son, and was the answer given or sent by the direction of the said A. B. or with his privity or consent ? Declare, &c. To prove an act of bank- ruptcy by ly- ing in prison. * Did or not the said T. M. in the pleadings of this cause named previously to the day of and from and up to what time in particular, carry on any and what trade or dealing and in what sort of merchandise ? Was or not the said T. M. a prisoner in the Fleet Prison, and when did he first become a prisoner there and for and upon what account was he imprisoned, and how long did he continue a prisoner without being bailed or discharged, and what charges or INTERROGATOEIES. 694 detainers were there lodged against him during the whole time of such his imprisonment? Declare, &c. * Whether or no did the said defendant C. D. in the life-time of [ *695 ] the said S. D. send remit or deliver unto the said S. D. any bill or to prove a re- bills of exchange ? If yea, For what sum or sums of money, or of mittance of what value or amount was or were such bill or bills of exchange res- ^'^^^ °^ !^" pectively and in the whole, and when or about what time or times uft-'tfme'of a^ was or were such bill or bills of exchange so sent remitted or delivered, deceased per- and was or were or not the sum or sums of money mentioned in or ^°°' secured or made payable by the said bill or bills of exchange or some ^^^^ 'j^^ ^^™® and which of such sums of money received by or paid to the said S. Ts^they be^-" D. or to his order or for his use when and as the same became due came due, and payable or soon afterwards or at any other and what time or and whether times ? And did or did not the said S. D. in his life-time and when *^® deceased repay the said defendant C. D. or satisfy him the said sum or sums ptrt^oA'lfe a- of money and any or either and which of them or any and what parts mount there- or part thereof ? Declare, &c. of- Whether or no did you draw and deliver to the said complainant any To prove that and what number of bills of exchange and to what amount for the ^''"^ss as the produce of the said cargo upon the said defendants T. R. and C. S., sWp.g^cargo'^ " and did you or not at or about that time or at any time and when delivered bills ship on board the said ship called the M. or any other and what ship ^° ^^^ plaintiff or ships and consign to the said defendants T. R. and C. S. any colo- duVe'^drawn nial produce or any and what effects and to what amount in order to upon the de- provide for the payment of the said bills so delivered by you to the fendants, that said complainant for the produce of the said cargo, Or whether or no coioniaT^"^*^ have you at any time or times and when assigned or conveyed to the duce to them said defendants T. R. and C. S. or to any other person or persons to provide for and whom by name in trust for them or for their benefit any and *!^® payment what estates or property whatsoever in or towards satisfaction of the made over said bills or any of them or any part thereof, or have the said de- property to fendants T. R. and C. S. been in any other and what manner paid J^®™' °'' *''^' or satisfied by you the amount of the said bills or any and which of aat^fied^hT" them or any and what part thereof, or have you in any and what man- amount, or ner and when had credit in account with the said defendants T. R. and ^^"^^ gi^^n C. S. for the amount of the said bills or any and which of them or r!.T„','^?f' 11 1 <>"i o n 1 '" account tor any and what part thereot ; bet torth, &c. the amount of the bills. Do you know and from what circumstances when and where the To prove the said complainant A. W. was born and baptised ? If yea, Set forth ^."^^ and bap- the time and place of her birth and baptism and the reason of your p\l"fatiff. ^ knowledge therein, and who were her father and mother, and where they usually resided at the respective times of the birth and baptism 695 INXEKKOGATORIBS. of the said complainant, and what was their situation in life. Set forth, &c. [ *696 ] ** Do you know the lands in the pleadings of this cause mentioned To prove the Called glebe lands ; If yea, Where are the same situate and how are boundaries of the boundaries thereof marked and described, and in whose occupa- glebe lands, in ^ion and under what term or holding were the said glebe lands on pation the"' *^^ ^^^ October 1801, and what was then the annual value of the said same were at glebe lands as you know or for any and what reason believe? De- a particular clare, &C. time, and what was then the annual value. To prove the * Are you not acquainted with the premises in the pleadings of *arden\mf *^^^ ^*"^® mentioned called the detached garden ; If yea, How is whether there 8"ch detached garden fenced or surrounded and by what ground or isanycommu- premises is it bounded or abutted aad particularly on the east side mcation be- thereof, and is there or not any gate door or opening communicating same and the ^^^^ ^^7 ^^^ what premises on the east side of the said detached gar- adjoining pre- den ? Declare, &c. mises. To prove the Whether or no do you know and how long have you lived in the boundaries of parish of W. in the county of , and whether or no did you at ho^wTiv'ided ^^7 t™^ o*" times and when attend any and what public perambula- from the ad- tions of the said parish, or are you by any and what other means joining one. acquainted with the boundaries of the said parish, and in particular with the boundary or division between the said parish and the parish of C. and how and in what manner is the said parish of W. divided from the said parish of C. ? Declare, &c. To prove the * Are you or not acquainted with the piece or parcel of land con- boundaries of Gaining a stone quarry in the pleadings of this cause mentioned to be Sl piece 01 IfliUCl ^ ■'■ "^ . ^ " containing a situate at or near certain places called or known by the names of stone quarry, and in the parish of and near to the river A. ? If yea, and its dis- How long have you been acquainted therewith, and how is such pi^e river °^ land bounded and at what distance is the same situated from the particularly Said river A. ? Look upon the map or plan now produced and shown with reference to you at this the time of your examination, marked with the letter to a map or ^^^^ — What doth the same purport to be or contain, and does or not ^ ^ ' the same contain a true and correct plan of the said piece or parcel of land and quarry, and of the boundaries thereof as you know or do for any and what reason believe ? Declare, &c. To prove whe- * Do you know L. H. Chapel now or formerly situated at L. in ther a chapel the parish of B. in the county of L. or the site thereof? Was the R*^ "^^Cath ^ ^^™® ^^^^ ^^ ^ Roman Catholic Chapel or as a Protestant Chapel lie chapel or as you know or for any and what reason believe ? Were the cere- Protestant monies of baptism marriage and burial performed in the said chapel ''^^^h ' r''^' ^^ ^°^ know or have heard and from whom or for any and what rea- marriages^™^' SOU believe, and were there or not any registers or register of baptisms INTERROGATORIES. 696 marriages and burials made or kept in or adjoining to the said cha- and burials pel ? If yea,, Are or is there any registers or register thereof now kept "^"^ perform- in or adjoining to the said chapel, of baptisms marriages and burials ^"^j ether' the'' performed therein ? Do you know or have you heard and from registers *whom whether the said chapel and registers were ever and when de- hereof were stroyed by fire or otherwise and how and by whom ? Have you heard "^^J" ^^^^^ ' any person or persons and whom byname make any and what decla- L ^^" J rations relative thereto, and were or was such persons or person in ^''ether the any and what manner connected with or in the service of or in any gjs'Jers wei^" and what mailner related to any person in the service of the family destroyed and of A. in the pleadings of this cause named, and are or is such persons ^^^^ ^^^ or person or any or either of them now living, and if dead, when did craratufiTs' ^''' they respectively die ? What is the general report or belief of the per- witness has sons residing in the neighborhood of the said chapel of L. H. or the "lea"^ relative site thereof relative to the destruction of the said chapel and registers *'^«'''^'° '''■"^ I. n it- 1 /. 1 1 ^ iT. o irom whom ; Dy nre or otnerwise as you know or for any and what reason believe r -vvhether such Set forth according to the best of your knowledge remembrance infor- persons were mation and belief all and every the matters inquired after by this connected interrogatory and the grounds thereof. TuiarlfiiBn '" and whether living or dead; and the general belief in the neighborhood relative to the destruction of the chapel and registers. * Are you or not acquainted with the said complainants J. T. and To prove what M. his wife ? And if yea. Are you acquainted with the state of the children the said complainant's family ? What children or child have the said com- {Jay'e*'*'^ plainants J. T. and M. his wife now living, and what are or is the names or name of such children or child ? Set forth all you know con- cerning the particulars inquired after by this interrogatory and the reasons for such your knowledge ? Declare, &c. Whether or no had the said M. H. and A. his wife heretofore or To prove what late A. C. in the preceding or 7th interrogatory mentioned or acquir- children a i ed after any and what number of children ? If yea, what were their by w^at^'' respective names or the names of any and which of them, and par- husband and ticularly are or is not the said complainants R. H. &c. or some or their names ; one and which of them the children or child of the said M. H. and ^^f \^^il°i\^f A. his wife, and had they or not another son named T. H. and is he are the sur-° living or dead ? And if dead when and about what time did he die, viving chil- and did he or not leave any children or child or issue and whom? ^ren, and that Had or not the said A. H. any and what other children or child or another son^ issue other than and besides those hereinbefore named ? If yea. Are who died they or any and which of them living or dead and if dead when or without issue. about what times or time did they or any and which of them die as you know or do for any and what reason believe ? Declare, &c. * Do you know what is become of T. H. in the preceding inter- To prove whe- roffatorv named ? Is he living or dead ? If living, where hath he "^?'' ^ P^'''^" _ D . •' ,. -J J • i.1, J e ■> r, -c J J cular person from time to time resided since the day oi : Ur it dead, [g uyi^g or 49 697 INTBRKOGATORIES. dead ; that he contributed to the mainte- nance of a child, and fre- quently visit- ed it; [ *698 ] the degree of notice or af- fection he showed to- wards it, and in what man- ner he ex- pressed him- self; that he treat- ed such child as his own, and that the child treated him as his fa- ther. when or about what time did he die and where ? Did he or not for any and what period of time in any manner and how pay or contri- bute any and what sum or sums of money yearly or otherwise and how for or towards the maintenance or education of the child which is inquired after by the last interrogatory, and did he or not during any and what period of time ever and when or how often and where *visit or see such child ? Were you present at all or any and how many and which of such times ? and if yea, Did he at all or any and which of such times take any and what kind of notice of such child, or show or express and how or in what particular manner any and what degree of affection for it and on what account, and how and in what manner did he at such times generally express and behave him- self to or respecting such child ? Set forth the particulars of such expressions or declarations and any circumstances relating thereto ; — Did the said T. H. at all or any and which of such times and in the presence of any other person or persons and whom by name treat such child or speak to it or of it as being his own child, and did such child at all or any and which of such times speak to or address the said T. H. as being its father, or as being in any and what degree or manner related to it ? Declare, &c. To prove what children a de- fendant had at the death of a testator, the time of his death, and what children are living or dead. Whether or no do you know and for how long have you known the defendant J. P., the sister of the said testator W. G. and her family? Whether or no were there any and what children of the said defend- ant J. P. living at the time of the death of the said testator, and when did the said testator die, and which of such children are now living and what are their respective ages, and if any or either of them have or has died since the said testator, when did she or they die ? Declare, &c. To prove the payment of the considera- tion-money expressed in a deed, and the acknowledg- ment of the person on re- ceiving the ' same. * What was the true and real consideration of the said deed marked (A) ? Whether or no were or was any and what sums or sum of mo- ney at or about any and what times or time paid as or for or in part of the consideration thereof, and when and where and by whom and on whose account and to whom and for whose use and on what oc- casion ? If yea, Were you or not present at the time of paying the same or any and what part thereof ? And if yea. Did or not the per- son whose name appears to be subscribed to the receipt indorsed on the said deed at or about the time of signing such receipt say or de- clare any thing and what concerning his having received or being paid or satisfied the whole or any and what part of the money therein or thereby expressed to be paid to and received by him ? Declare, &c. To prove a * Were you at any time and when present at any and what con- conversation versation between the said complainant and defendant respecting pUi^tfff and ^^° ^^^^ defendant's purchasing of the said complainant his the said INTERROGATOEIBS. 698 complainant's interest in the sum of 2400Z. in the pleadings of this defendant, le- cause mentioned to have been paid by him into the Court of Chan- ff^^"^ '.'"^ eery in a certain cause entitled ? If yea, How did such conver- purchasLg sation arise and what passed between the said defendant and com- the piaintfff's plainant respecting such purchase, and did or not the said defend- interest iu a ant agree to purchase such interest upon any and what terms, and p"^ kitocourt *what in particular did the said defendant say to the said complain- r *qqq t ant respecting the said complainant's chance of recovering the said ■ ji 2400/. Declare, &c. causT; the agreemeot to purchase the same, and upon what terms. * Have you at any time or times and when or how often had any to prove con- and what conversation or conversations with the said defendant re- versations re- specting the renewal of the lease granted by the said Dean and Chap- ^pecuug the ter m the pleadings of this cause mentioned ? If yea, How did such jgage and also conversation or conversations arise, and what passed between you the agreement and the said defendant respecting the obtaining of such renewal, and ^y defendant did or not the said defendant agree to apply for or make any and ren^^af. what declarations relative to the making of any and what applications for the renewal of such lease, and what in particular did the said de- fendant say to you respecting such renewal, and was any other per- son and who by name present at the time of such conversation or conversations or any and either and which of them? Declare, &c. Whether or no were you at any time in the year and when To prove the and where present with the said complainant and the said defendant piirticulars of J. p. when any conversation passed between them respecting the and an^offer"'' public-house called the at E., in the occupation of the said com- raade by the plainant, and any agreement relating thereto ? If yea. Set forth the plaintififto one particulars of such conversation and what was said therein by the °^^^ " ^ ^'^^' said parties respectively, and whether the said complainant then r^/^-^ ^^^ ^^^ offered to pay any and what sum of money to the said defendant J. of a set of m- D. : Set forth, &C, lerrogatoHes on the part of the plaintiff to prove an agreement for purchase of a public house.] * Did you know F. A. deceased in the pleadings of this cause to prove a named the uncle of the said complainant, and did you know H. I. knowledge of of deceased or either and which of them in their or his life- g^'^^^^^g"" ^ time, and how long did you know them respectively previously to anThoTand ' their death or such one of them as you did know, and how and in for what what manner and for what length of time previously to their deaths lepg'h of time respectively did you so know or become acquainted with them respec- rcquainted^ tively ? Did you at any time or times and when in particular hear with them ; the said F. A. enter into any conversation or conversations with or To prove con- make any declaration or declarations to the said H. I. or any other yersatlona be- •' "^ tweenthem, or 699 INTERROGATORIES. declarations person Or persons and whom by name and when in particular and in made by one -v^hose presence relative to his family and relations, or any estate or tive to his fiC- estates to which he the said F. A. considered himself entitled ? And rally and rela- did you at any time or times and when hear the said H. I. make any tions, or pro- and what declaration or declarations relative to his being present at hr'con'sidered *^® ^^"^^ ^^^^ ^"7 ^^^ ^^^^ agreement was entered into by the said himself enti- F. A. with any person or persons and whom by name, relative to any tied; and what estate or estates, or to any and what moneys that the said L '"^ J *F. A. was to receive annually from any person or persons and whom To prove de- by name, and the consideration thereof? And did you at any time thTotheT th^t ^^'^ when hear the said F. A. read any and what deed or deeds, he was present agreement or agreements between him and any and what person or at the time an persons relative to any and wha;t estate or estates ? And do you entered^intT^^ know whether any deed or deeds parchment or paper-writings belong- relative to cer- ^"^g to the Said F. A. was or were at any time or times and when, tain property ; destroyed by fire or otherwise and how ? And did you at any time To prove that and when see any and what deeds or deed that were or was at anytime witness heard g^jj^ when in the possession of the said F. A. that had any and whose the agreement ^ a- i i n read; seals attixea thereto, or had the names or name ot any persons or To prove the person and whom signed thereto ? If yea. Set forth all and every destruction of the particulars inquired after by this interrogatory, or such of them r'^fir'e-^a^nd'^^ as you do know, and the particulars thereof and of every part thereof. that witness Declare, &c. saw certain deeds in the possession of one of the deceased persons having the names and seals of certain per- sons thereto. Interrogatories to be exhibited, &c. [see p. 685, antea,^ wherein W. E.. and J. P. assignees of the estate and eifects of E. T. a bankrupt, are complainants, and T. H. is defendant, on the part and behalf of the said complainants. 1st. \_As to knowledge of the parties, vide antea p. 687.] To prove the 2d. Had you at any time and when first and where and in whose first conversa- presence any conversation with the defendant respecting the affairs defendant re- of E. T. the bankrupt in the pleadings of this cause named ? If yea, specting a get forth upon what occasion such conversation took place and the bankrupt's particulars of such conversation, and what was said thereon by the ' ^ ' said defendant or by you or any other person or persons to or in the ment was presence or hearing of the said defendant respecting the affairs of the made respect- said E. T., and was any and what agreement then come to by you ing the assign- q^ the part of the said E. T. with the said defendant respecting the of™he°bimk- assignment of any and what leases, or was any thing and what then rupt's proper- Said by the said defendant or by you or any other person and whom ty or what ^q the said defendant or in his hearing respecting any such assign- therefo™^^"'"' ment? And did you then inform the said defendant that the said E. That the de- T- ^^^ '° insolvent circumstances, or did any thing and what pass as fendant was to the insolvency of the said E. T. or as to any and what composition informed that being made or proposed to his creditors, or as to the said defendant's was^in°i^sol- guaranteeing such composition ? Set forth, &c. INTERROQATOKIBS. 700 3d. Had you at any other time or times and when afterwards before vent circum- the commission of bankrupt was taken out against the said E. T. any stances, and other conversation or conversations with the said defendant respect- ^laUv^e^t^a mg the aflFairs of the said E. T. and where and in whose presence composition and upon what occasions respecting such affairs ? If yea, Set forth with his credi- the particulars of such conversation or conversations in the order in th^de^fend^'ants which the same took place, and what was said thereon respectively guaranteeing by you or the said defendant or any other person or persons and *e same. whom in his presence or hearing ; And was any and what agree- To prove sub- ment come to, or any thing and what said in any and which of such yer^at^ong""" *conversations, as to the assignment of any and what leases by the with the de- said E. T. to the said defendant, and did any thing and what pass fendant re- in any and which of such conversations as to the insolvency of the spectmg the ■j-cim J 11 ••!•■ 1 bankrupts said Ji. 1. or as to any and what composition being made or pro- affairs; posed to his creditors or as to the said defendant guaranteeing such [ *701 1 composition ? Set forth, &C. What agree- 4th. When did you first inform the said defendant of or did you ment was or not learn from him that he knew or suspected the insolvency of ™a^'^ed°aVt''^' the said E. T., and when first did any thing and what pass between the assigu- you and the said defendant or any other person and the said defend- ment of part ant in your presence and hearing respecting a composition to be °^ ''■^ ^anls- made and proposed to the creditors of the said E. T., and when ^^etu ^a™d as first did the said defendant agree to guarantee such composition ? to the insol- Set forth, &C. "^ ency of the Lastly. \_The last general interrogatory, vide antea, p. 688. j aToinposition [These interrogatories were exhibited to the clerk of the bank- with his cre- rupt, who had discovered his insolvency and informed the ditors and as defendant of it.] »nt*«^t^rf' J ants guaran- teeing the same. To prove when the defendant was first informed of the insolvency of the bank- rupt, and when first any thing passed respecting a composition with his creditors, and when first the defendant agreed to guarantee the same. * Were you or not employed by the said J. R. deceased as his at- To prove that torney or solicitor in the purchase or in completing the purchase of ^'pio^yed bva the said reversionary estate and interest of the said bankrupt, and deceased per- in preparing the necessary conveyances and assurances thereof? If son as his at- yea, Did you lay the abstract of the title thereto before or employ "^"^ °^|fa"' 'f* any counsel and whom by name on behalf of the said J. R. or on bankrupt's re- whose behalf to prepare the necessary conveyance or conveyances versionary es- of the said reversionary estate and interest of the said bankrupt, and tate; that wit- to whom by name ? And did or not the said J. R. inform you of his abstracts be- intentions in making such purchase, and did or not the counsel so fore counsel employed by you prepare the necessary drafts of such conveyances with instruc- according to the directions and instructions of the said J. R. ? If p'are the ^con- yea, Set forth the declarations made by the said J. R. to you relative veyances, and to and expressive of his intentions in making such purchase, and how t^^e intentions and in what manner and for what purpose such conveyances were ed^n^making" prepared by such counsel as you know or do for any and what the purchase; reason believe ; Declare, &c. That counsel prepared the drafts of the conveyances and the declarations of the deceased relative to such purchase, and the conveyances which were prepared. 701 INTEREOGATOKIES. To prove that * Did or not the said J. R. at any time and when alter his inten- he altered his tjous with regard to the draft conveyances inquired after by the pre- with ren-ard to Ceding interrogatory, and did or not the said J. R. give directions to the ooaveyan- you or to any other person or persons and whom by name to make any and what alterations and insertions in the said draft conveyances, and what was the intention expressed by the said J. R. in making such alterations as you know or do for any and what reason be- lieve ? Declare, &c. ces, the direc tions which be gave as to the alterations to be made, and his intentions relative there- to. [ *702 ] ** Do you know or can you set forth whether any deed or deeds To prove that of grant or conveyance was or were made for the purpose of carry- certain deeds ing the agreement in the last preceding interrogatory mentioned were'prepar-* ^'^*'° execution ? If yea, By whom was or were such deed or deeds ed, and by prepared ? Was or not^Sir T.|B. in the pleadings in this cause named whom ; a party to such deed or deeds ? If yea, Whether or not did he exe- That Sir T. B. cute such deed or deeds or any of them ? If yea, then set forth when Mid executed ^^^ upon what occasion and at what place and in whose presence the the same and Said Sir T. B. executed the same ; Whether or not were or was any drafts or draft made from which such deed or deeds was or were pre- pared and engrossed ? If yea. Whether or not was or were such draft or drafts, or any and which of them at any time submitted to the said Sir T. B. for his perusal, or to any person on his behalf? If yea. Whether or not did the said Sir T. B. or any person on his behalf peruse such draft or drafts or any and which of them ? Whether or not did the said Sir T. B. or any person on his behalf approve of such draft or drafts, or make any and what corrections amendments or alterations therein ? Whether or not was or were the engrossment or engrossments of such deed or deeds so executed by the said Sir T. B. prepared or copied from such draft or drafts 'i Whether or iiot was any attorney or other professional person present at the execution of the said deed or deeds on behalf of the said Sir T. B. ? If yea, proved of the 'Whether or not did such attorney or professional person peruse or same, or made ■, , i. ^ o -m-i . i ^ any altera- ^^^^ o^^^r such engrossments or engrossment : Whether or not were or was the same read and by whom to the said Sir T. B. before he executed them ? Whether or not were or was such deeds or deed or any counterpart thereof then or at any time and when left in the possession of the said Sir T. B. or of his stewards or agents ? De- clare, &c. the circum- stances at- tending such execution; To prove whe^ ther drafts thereof were previously prepared ; Whether the same were submitted to Sir T. B. for his perusal; "Whether he perused or ap tious or cor- rections there- in; Whether the engrossments were prepared from such drafts ; Whether any attorney was present on his part, and whether such attorney read over the engrossments, and whether the same were read over to Sir T. B. before he executed the same, and whether the deeds or a counterpart were left with him or his steward. To prove a correspond- ence with, or the receipt of letters from the defend- ant; also to prove the * Whether or no did you at any time or times and when and on whose behalf correspond by letters or otherwise and how with the said defendant T. H., or did you or not at any time or times and how or in what manner and by what means receive any letter or letters from him with respect to ? And if yea. Have you such letters or any and which of them in your possession custody or power, or INTERBOQATOEIES. 702 what is become of the same respectively ? If you are able, produce hand-writing such letters, and declare how or in what manner and by what means tj^e'eof, and the same respectively came into your possession, and of whose hand- g°^g into'^the writing all such letters respectively are, and were or was not the witness's pos- same or any or either and which of them ever and when and by session ; and whom and on what occasion produced or shown to the said defend- Ji^nd- writing ant? If yea, in whose hand-writing did he declare or admit the the defendant same respectively or any and which of them to be, and what is the admitted tlie purport or eflFect of such letters respectively? Declare, &c. uplnthrsame being shown to him. * Whether or no were you on or about the day of and [ *703 ] for how long before employed as clerk or book-keeper in any and To prove by a wjiat trade or business carried on by the said defendant S. F. in co- ''■^^'^^^ ^^^ '^"^- partnership with his said brother A. F. or any other person or per- and state?f sons and whom and at what place ? If yea. Whether or no had you credit of the any and what opportunity to know, and did you or not know the business of a circumstances and state of credit of the said trade or business, and of g^m^and 'of the said S. F. and of the other person or persons interested therein, the partners, and what were the circumstances and state of credit of the said S. and tliat the F. and of the said other person or persons on or about the said defendants WGTG 8.C" day of , and for some and what time before ? Whether or no as quainted you do for any and what reason know and believe,, were the said de- therewith, and fendants or any or either and which of them in any and what manner ^'^'^ refused acquainted on or about the said day of with the circum- draft drawn ^ stances and state of credit of the said S. F. and of his said co-partner upon them by or co-partners; and whether or no did the said defendants or any the firm. and which of them at any time and when on or about the said day of refuse payment of any draft for a sum of 1, or any other and what sum of money drawn on them or some and which of them by the said S. F. and his said co-partner or co-partners or any and which of them, and for what reason and under what circum- stances did they refuse such payment ? State the particulars of the several matters hereinbefore inquired into, fully and at large, and the truth declare, &c. *Did you or not know J. S. in the pleadings of this cause named? To prove the If yea. Is he living or dead, and if dead, where and when did he die, ^^^^^ °^ a'u-, and did you or not see him after he was dead and where was he buried, buriah" and did you or not attend at his funeral or how do you know that he is dead ? Declare, &c. * Did you know the leasehold estate called W. in the particulars of To prove the the estate in the pleadings of this cause mentioned ? And if yea, Did <^eath of a no- you know ? And if yea. Was the said living or dead on the ™aseVew''for 4th October 1821, and if dead, when did he die, and how do you know Uves. that the said is dead ? And was or not the said one of the 703 INTERROGATORIES. lives named in the lease of the said estate called W. as you know or for anv and what reason believe ? Declare, &c. To prove the death of sub- scribing wit- nesses, and their hand- writing. [ *704 ] Did you know A. B. and C. D. ? If yea, Do you know whether they or either and which of them be now living or dead ? And if they are dead, when did they respectively die, and how do you know that they are both or either of them is dead ? Declare particularly your reasons for knowing or believing that the said A. B. and C. D. are or that either and which of them is dead ; And are you acquaint- ed with the character or manner of hand-writing of the said A. B., *and C. D. or either and which of them ? If yea, Look on the exhibit marked with the letter (A) and now produced and shown to you at this the time of your examination, and at the names of A. B. and 0. D. indorsed thereon as witnesses to the sealing and delivering thereof, and declare whether the same be of the respective proper hand-writ- ing of the said A. B. and C. D. as you know or for any and what reason believe ; Declare, &c. a witness examined de * Did you or not know J. G. late of — bene esse in this cause ? If yea. Do you know whether he is living To prove the death of awit- de bene esse °^ dead, and if dead, when did he die, and how did you become aC' his burial. aud a copy of quainted with his death ? Look upon the paper- writing now produced tlie register of and shown to you at this the time of your examination marked with the letter (A) and purporting to be a copy of the register of the burials of ? Did you at any time and when carefully examine the same with the entry made in the register book of or kept for'any and what parish or place, and is the same a true copy thereof as you know or for any and what reason believe ? Declare, &c. To prove the debt due to the plaintiffs. Whether or no was the testator W. 0. in the pleadings in this cause named at the time of his death indebted to the said complainants or either and which of them in any and what sum or sums of money, and when and by what means and on what account did the said tes- tator become so indebted? Declare, &c. To prove that it deceased person was In- debted to the defendant ; applications made to him for payment, * Was or not the said S. D. in his life-time indebted unto the said defendant C. L. in any sum or sums of money as you know or do for any and what reason believe ? If yea, In what sum or sums of money and for what or on what account or accounts and to what amount was the said S. D. so indebted unto the said defendant C. L. ? Whether or no did the said defendant C. L. by himself or by any other person or persons and whom in the life-time of the said S. D., apply to or request the said S. D. to pay or satisfy him the said de- INTERROGATORIES. ' 704 fendant C. L. such debt or debts or any or either or which of them or any and what parts or part thereof, or make any other and what application to the said S. D. touching or concerning the said debt or debts or any or either and which of them or any and what parts or part thereof ? If yea, "When or about what time or times and where and in what manner was or were such application or applications or request or requests made, and what did the said S. D. do say or de- clare then or on that occasion ? Whether or no did the said S. D. in 'be deceased's his life-time and when or about what time or times and where and t'?°t=T,'/thI 1, . , /*i-ii -.1 ments or the upon wnat occasion or occasions say confess acknowledge or declare debt; unto you or unto any other person or persons and whom in your pre- sence or hearing, anything and what touching or concerning such debt or debts or any or either and which of them or any and what part or *parts thereof? And did you or did you not at any time or times [ *705 ] and when by the order or direction or at the desire and request of the said S. D. or of any other person or persons and whom write or that witness send any and what letter or letters or any other and what writing ■^™te several or writings and of what contents purport or effect to the said defen- a^endant'^by dant C. L. touching or concerning the said debt of debts or any or the deceased's either and which of them or any and what parts or part thereof ? direction re- Whether or no did the said S. D. at any time or times in his life-time ^Pf ''°f ^J"!, d, , T • 1 1 - debt : that the When wJiere and in what manner and upon what occasion or oc- deceased pro- casions and to whom and in whose presence and hearing, admit con- mised to pay fess or acknowledge or promise to pay the said debt or debts or any *^ ^'^'^^' or either and which of them or any and what parts or part thereof? And did or not the said S. D. at any time or times and when in his life- and whether time pay or in any and what manner satisfy the said defendant C. L. the debt was the said debt or debts or any or either and which of them or any and ^^^'' P*'^' what parts or part thereof? Declare, &c. \_To prove the execution of deeds; seep. 721, 2, postea.] * Have you now or have you not lately and when last had in your To prove that custody or possession or power certain deeds papers writings and witness had documents in some and what chest or otherwise of or relating to the ■'n'^^;g° ggggl estates and family of A. in the pleadings in this cause named, or of sion, from some and which of them ? If yea. How did the same come into your whom he re- custody or power, and from whom and when did you receive or pos- '^am*' aneTho sess the same and each and every of them, and how did the same the same came come into the custody possession or power of the person or persons into the pos- from whom you received or possessed the same as you know or have ^^^s'"" °^ ^^^ heard, or for any and what reason believe? Declare, &c. whom he'^re^ ceived the Look upon the deeds papers or writings produced, &c. What do To prove the the same respectively purport to be ? Were or was the same or any finding of old 705 INTEKKOUATOEIMS. deeds, and in or either and which of them at or about any and what time or time3 whose custody found and by whom and on what occasion in the custody of any and the same have , '' i t ■,_■ ^ ,.■ j. „ been. ''That persons or person amongst any deeds or writings relating to any and what and whose estate ? Where and in whose custody have or hath the same or any or either and which of them been from time to time and for any and how long time kept, and whether or not amongst the deeds or writings relating to any and what estate, or how other- wise ? Declare, &c. To prove by * By whom were the said indentures brought over to B. to be exe- whom certain cuted, and upon what day in particular, and whether or no upon [ *706 ] *occa3ion of the same being so brought over and prior to the execu- deeds were tion thereof were the same or any and what parts thereof in particu- brought to a \^j. j-ead over to the said Sir T. B. by you or by any person and execu°ed°- ^ whom by name on his behalf for their or his approbation, or were whether the the same or any and what part thereof in particular read over by any same were person and whom by name, in or out of the presence of the said Sir him o°rTn Ms ^- ^- " -^^^ if jea, by whoso directions and requests did such per- behaif ; son SO read and inspect the same, and what parts and for what pur- Whether wit- pose and with what view in particular, and where was the said Sir ness was re- T. B. when such person so inspected the same or any and what part perTon^vho''^^ thereof; and in particular were you or was any other person and brought over who by name upon the occasion aforesaid requested by the said per- the deeds to son or persons who brought over the said indentures to B. or either peruse and ex- ^^^ which of them to peruse and examine the same on behalf of the same on be- ^^^^ Sir T. B. and to approve thereof for him, and to see that the half of the Same was properly and fairly drawn up ; and whether or no was the person by aforesaid memorandum of agreement or any draft of the said release were°to bTex- Produced on the occasion aforesaid, or was the same or any and what ecuted ; part thereof comprised with the said release, and whether or no, as Whether any you do know or have any and what reason for believing, was it memorandum understood Or believed by you and the other persons in the employ- er dfaft'^acT-" ment or service of the said Sir T. B. who were present, and by the companiedthe Said Sir T. B. when he executed the said release, that the said coal deeds, and Comprised therein was the same only as was comprised in the said understandi ^ memorandum of agreement, or was it understood and known or be- at the time of lieved by the said Sir T. B. or by you and 'such other persons or execution with either and which of you that the said release did comprise more than regard to the g^^j^ Jast-mentioned coal and what other coal ? Set forth, &c. premises com- ' prised therein. To prove what * Whether or no did the persons who brought over the said inden- thepersonwho tures to be executed as aforesaid or either and which of them then deed^'t' b"^ inform or intimate to you or to any other person present on behalf executed said of the Said Sir T. B. that the said release had been prepared by them which had the or by either and which of them according to the directions of the said effectofinduc- gjj. r[i_ -Q qj. ^jjJj ]^[q knowledge or consent, or intimate or say any to^elLve that thing upon the aforesaid occasion which had the effect of inducing thereleasehad you or such other persons present on behalf of the said Sir T. B. to been prepared suppose that the said release was properly prepared and according INTBEKOGATORIBS. 706 to the directions and instructions received from him, or that he was according to acquainted with the terms and conditions thereof, or intimate or say *^^ '"^''^"'a'nd any thing which had the eifect of making you inspect or examine toTefess^are- the same less minutely and attentively than you would otherwise ful in examin- have done, or which tended thereto ? And if yea* What was the na- i"g the same. ture and purport of such intimation, and what fell from such per- sons and from either and which of them so far as you recollect the same, and how long did such person remain at B. after the same re- lease was executed ? Set forth, &c. * Whether or no did you upon occasion of the same release To prove why heing brought to B. for execution examine or read over the whole witness thereof? And if nay, What were the reasons which prevented you r^l^nV'i"' *from so doing or which made you think it unnecessary so to do ? Set L <^< J forth, &C. necessary to examine the indenture of release. . * Whether or no did the persons who brought over the said release To prove tvhe- to be executed as aforesaid propose or invite any inspection or exa- therthe person mination thereof ? Set forth, &c. 7^\\Tje\o be examined proposed an examination thereof. * Whether or no was there upon the occasion last mentioned any To prove that appearance of eagerness and anxiety on the part of the persons in *^ ^f"^^""),* the preceding interrogatory referred to or other and which of them tije deeds to that the said indentures of lease and release should be forthwith be executed executed by the said Sir T. B. ? And if yea, did either and which of showed great them express such eagerness and anxiety to you or to any other per- have\hem ex- son in your presence, and what reason did they or either and which ecuted; of them assign for such eagerness and anxiety shown ? And whether ^^^^, such or no did such eagerness or anxiety on their part escape your atten- not'escape the tion and observance at the time when the same was shown, and did witness's ob- you then draw any conclusion or inference therefrom ? And if yea, servation, and What conclusion and inference did you then draw, or did you draw ^''^^ 'n*'<*''6'\<=e ,..„ ic 1 -11 he afterwards any and what mierence tneretrom at any subsequent time, and when drew there- did such eagerness and anxiety if any for the first time appear state, from, and and when did you for the first time draw any and what conclusion or Y^^'^J°'^ ^^^ inference therefrom, and why did you not draw any such inference therefrom at the time when the same was shown ? Set forth, &c. * Whether or no upon discovering the said grant to be objectionable To prove what did you take any and what steps for the purpose of altering the same ^*^?^ witness and in what particular or particulars did you endeavor to have the covering the same altered, and state all such particulars, and whether or no did you indenture of ever and when endeavor to have any alteration made in the descrip- release to be tion of the parcels of land in the said release contained with the view to ''have the of conforming the same with the description of the parcels contained same altered, in the said memorandum of agreement or with any other and what and the parcel view, and if not why not ? Set forth, &c. TableToIhe description contained in the previous agreement. 707 INTEKEOGATORIES. To prove that * Whether or no did you ever compare the said memorandum of ined the agree! agreement and release as to the description of the coal comprised ment and re- therein respectively and of the lands comprised therein respectively, lease; and and of the lands iinder which the same coal did lie, and did you or when he first qq^ (Jjscover, or Were you or not informed that the said memorandum that the des- ^^ agreement and release differed in any and what particulars, and cription of the when did you for the first time discover that the said memorandum ^^^^^ ''°™P"" of agreement and release to differ therein, or by whom were you in- lease°differ7d formed thereof, and what was the occasion of such variation being from the discovered so far as you do for any and what reason know or believe, agreement, or and by whom by name was such variation first discovered ? Set by whom he f ^y^ a^ was informed ^°^^'^y "'°- thereof, and when such discovery was first made, and the occasion thereof. To prove that * Whether or no while you acted in the said land agency .were any promises were promises made or expectations held out to you by the grantees named the indenture ^^ *^^ ^^^^ release or by any and which of them that the same should of release *be Corrected and in any and what particular, and when and in the should be cor- presence of whom by name and upon what occasion were such pro- r JH^riQ 1 ^^^^^ made or expectations held out, and in what manner were the L ' "° J same made and held out respectively ? Set forth, &c. To prove that * Whether or no did you at any time after the release was executed ThT^eUalT ^^^ "^^^^ inform the said Sir T. B. that you objected to the terms was executed and stipulations thereof or to any and which of them in particular, by Sir T. B. and whether or no did the said Sir T. B. ever and when in particular informed him express to vou or to any other person as you do know or believe by of various ob- ^ j _ j r j . i ■ , jections which name any disapprobation of the manner and terms in and upon which he had discov- the said release had been drawn up ? And if yea, What was the extent ered to the gf g^jj^ disapprobation, and to which of the terms and stipulations of that Sir T. B.' ^^^ ^^^^ release was such disapprobation in particular and exclusively expressed his directed ? And whether or no as you do for any and what reason disapproba- know or believe would the said Sir T. B. have continued to acquiesce termsin which ^^ ^^^ ^^^^ release, and especially would he have acquiesced in any the deed was claim on the part of the said L. M. C. to the said farm in the year drawn up; and 1789 occupied by J. K. if any claim thereto had been made or de- never haTeac- glared in his life-time or if he had conceived that any such claim quiesced to would thereafter be made ? And would he as you do for any and what any claim on reason know or believe have endeavored to set aside or alter the said the part of the release by any and what proceedings in any and what particulars if particular ^^ tad become aware of the terms and conditions thereof, and espe- farm if such cially if he had become aware that more coal was comprised therein claimhadbeen ^^{j^jj jjj ^jjg g^[^ memorandum of agreement? Set forth, &c. made m his ° ' life-time; but that he would have taken proceedings to have had the deed rectified if he had been aware that more coal was comprised therein than in the previous agreement. To prove un- * How came you to be present at B. at the time when the before- der what cir- mentioned indentures of lease and release were executed, and for cumstances witness hap- pened to be present at the time of the execution of certain deeds. INTERROGATORIES. 708 what purpose were you there, and whether or no for such purpose exclusively or for any and what other purposes ? Set forth, &c. * Was there or not mj dispute or difference between the said com- Toproveadis- plainant and defendant relative to the said complainant's paying the P"*^ having sum 01 1, or any other and what sum or sums of money to R. T. tweeu the in the pleadings in this cause named ? If yea, When or about what plaintiff and time did such dispute or difference arise or take place, and what was defendant the particular nature thereof? Declare, &c. ThepajmenVof , a certain sum * Did or not the said complainant and defendant ever and when "f money; agree to refer such dispute or difference to the arbitration or determi- '"'o prove an nation of any person or persons and whom by name ? And if yea, refer^^di'dis- Did or not such person or persons undertake such reference and fully pute to arbi- and fairly hear the said complainant and defendant touching such tratiou; dispute or difference? If so, When and where did such arbitrator or '^^/^^'^"jf arbitrators hear the said complainant and defendant, and did or not arbitrator and such arbitrator or arbitrators make any and what award or decision the defend- er give any and what opinion touching the matters so referred to him ^^^'^ acquies- or them? And was or not the said defendant ever and when and where and by whom and how or in what manner informed or *made acquainted with such award decision or opinion, and did he or r *709 ] not then or at any other time or times and when make any and what declarations respecting the same, and did he or not appear to be satisfied therewith ? Declare, &c. * Do you or not know, and if yea, how and by what means. To prove the whether the said complainant H. S. ever and when and of whom and Receipt of dm- .1^ , . , dends upon a in what manner received any and what sum or sums oi money and to gum of stock what amount for or in respect or on account of the dividends due by the plain- upon the sum of 1001. 3 per cent, consolidated bank annuities in the *'*^- pleadings of this cause mentioned, and in particular do you know whether she received such dividends or any part thereof and from whom subsequently to the day of ? Declare, &c. * Were you or not at any time and when during what space of time exhibits. in particular employed by the said defendant J. G. in the pleadings in this cause named, as his attorney or solicitor ? If yea. Look upon J°hfbi'trthe the exhibits now produced and shown to you at this the time of your abstracts of examination marked respectively (A) and (B), the one marked (A) in- title received dorsed as purporting to be an "abstract of the title of E. F. M." &c. ^f ^f; j4\"for and the one marked (B), indorsed as purporting to be a " further the^defen°dant abstract of the title of E. F. M." &c.; Did you at any time or times and when in particular as the solicitor or attorney of the said J. G. receive the said exhibits respectively or either and which of them 709 INTEEKOGATOEIES. EXHIBITS, from any person or persons and whom by name, either on their or his own behalf or on the behalf of any and what other person or persons ? And are the said exhibits respectively in the same state and condi- tion in which they respectively were at the time you received the same from such person or persons or how otherwise? Declare, &c. [ *710 J * Interrogatories for examination of an accountant relative to an account made out hy him of the dealings between de- ceased persons. Outline of the plaintiff ' s case. G. Gr. the husband of the plaintiff was agent to D. defendant's hus- band in L., and as D. made remittances to Gr. who paid money for D. in the capacity of agent, an account was opened between them ; G. died. The person to whom these interrogatories were administered was employed after G.'s death to settle the accounts between him and D., afterwards D. died. The plaintiff brought her bill praying an account, and alleging that a sum of money remained due to her from the estate of D. 1st. [As to knowledge of the parties ; see p. 688, antea.'\ To prove that ^^' ^ere you are not ever and when employed by any and what witness was person or persons and whom by name, to make out any account of employed to the dealings and transactions between the said G. G. and T. D. in account's' also ^^^^^ respective life-times ? And if yea, when did you receive from to prove as the Said complainant any books papers or writings for such purpose, exhibits the and particularly whether or not any and what books or book which ^?°'^^,'?^''^®'^' were or was or appeared to have been kept by or for the said G. G. the part of the in his life-time for the purpose of making entries of any and what plaintiff, kind relating to dealings between him and the said T. D. ? Look which had upon the books now produced, &c. Were or was the same or either her'deceased ^^^ which of them ever and when delivered unto you by or on be- husband. half of the said complainant for such purpose or on such occasion or for what other purpose or on what other occasion, and what do the same respectively purport to be ? Declare, &c. To prove ap- od. Did you Or not ever and when or about what time in any and plications what manner apply to the said T. D. to deliver or send up to you or defendant's'^ furnish you with any books or book of account papers or paper mat- late husband ters or things for or towards enabling you to make out or assisting for his books you to make out the account of dealings and transactions between also to°"f V *^^ ^^^^ ^- ^' ^^^ '^- ^"> ^"*^ '^''^ °^ °°* *^^ ^^^'^ '^- ^- ^^^^ ^^^ the same as^ when or in what manner deliver or send unto you any and what exhibits. books or book of account papers or writings for such purpose or in consequence of such application ? Look on the books papers and writings, &c. Were or was the same or any or either of them deli- vered or sent unto you by the said T. D. on such occasion or for such INTEREOGATORIES. 710 purpose, and what do the same produced books papers and writings exhibits. respectively purport to be ? Declare, &c. 4th. Did you or not ever and when draw out any account in writ- To prove as an ing of or concerning the dealings or transactions of all or any and exhibit the ao- what kinds which were had or passed between the said G. G. and T. out bywftnLs, D. for any and how long time or times and from and to what times ? or a copy Did you or not previously to or in order to the drawing out of such hereof, and account, carefully or otherwise and how examine inspect or peruse Tame'is true^or all or any and which of the books papers or writings which were false. *delivered or sent unto yo^ for such purpose by or on behalf of the [ *711 ] said complainant and the said T. D. respectively or by or on behalf of either and which of them ? Look upon the book or writing, &c. Is the same or not the account which, if any, was so drawn out by you, or a true copy thereof ? Doth the said book or paper marked contain a just and true account of all dealings and transactions between the said G. Gr. and T. D. for the time for which the same appears to be an account, or are there any and what errors omissions or false charges therein and for what reason ? Point out all such errors omissions and false charges and how the same happened there- in ? Declare &c. 5th. Whether or no was a copy of the account which, if any, was To prove that drawn out by you as is inquired after in the 4th interrogatory, at or a copy of the about any and what time delivered or sent and by whom unto the ^<=<=°"°t ^.s said T. D. ? Was the same or not a true copy of the said book or ^e wUness'' writing, &c. or did the copy which if any, was so sent or delivered, was sent to the in any and what respect differ or vary from the said produced books "deceased hus- or writings marked &c. ? Declare, &c. defendant!' 6th. Whether or not were any meetings had and how many in to prove number between you and the said T. D. for or in order to the set- meetings had tling examining or considering of the said account which, if any, was ^^ ^^'^ witness drawn out by you as is inquired after in the 4th interrogatory? If band*f t'b"^' yea. When or about what time and where were such meetings had, and defendant in how long were you and he together at each of such times ? Did or "'^^^^ to the not the said T. D. at all or any and which of such meetings with any settling of the and what degree of care or attention or otherwise and how, examine drawn out the whole or any and what part of such account and all or any and what passed which of the articles therein ; and were or not any and what books ^\^^^'^^ f^^ ... . i J • J u I.- J ^ whatacknow- papers or writings inspected or examined by him and you or one and ledgements which of you at such meetings or either and which of them ? Set forth were made by what passed between you and the said T. D. at such meeting touch- ^"^• the settling or adjusting inspecting or examining of the said account or in any manner relating to the several items or charges therein, and bow the said T. D. at such respective meetings expressed himself relating thereto ; Did or did not the said T. D. at any time and which of such meetings or at any and what other time in any and what manner acknowledge or allow the said account or any and what par- ticulars thereof to be just and true ? And did he or not finally make any and what objections thereto, or to any and what articles matters or things in his favour and to what amount. 7th. [^To prove in evidence the acknowledgments made hy the de- ceased husband of the defendant, in his own hand-writing, contained 711 INTERROGATORIES. EXHIBITS, in an account book ; see the 3cZ interrogatory ; inserted in p. 691, antea.'] 8th. \^To 'proveremittances of hills of exchange ; the same interroga- tory as inserted posteaJ] Lastly. \^The concluding general interrogatory ; seep.688, antea.^ To prove the * Do you know L. N. in the pleadings named, and how long and haud-wnting *Jq what character were you acquainted with him, and can you [or [ *712 ] are you able] by and what means [to] speak to his hand-writing ? of and also to Declare the truth and your utmost knowledge remembrance and prove as an j^gligf herein. exhibit a diary or account kept by a land agent to a proprietor of extensive coal mines. -- * Jiook at the exhibit now produced and shown to you marked with the letter and purporting to be a certain diary or account kept by the said L. N. between the months of January and October 1780 ; Whether or no is the same such diary or account, and in whose hand-writing is the said diary or account, and in what cha- racter or capacity was the same kept or written by the said L. N. or by any other and what person by name ? Declare the truth, &c. [m< supra.^ To prove the signature to an agreement by some per- son accquaint- ed with the parties hand- writing. To prove the signature of a deceased per- son to an agreement, by person ac- quainted with his hand-wri- ting. Look upon the paper-writing now produced and shown to you at this the time of your examination marked with the letter (A) ; Whether or no are you by any and what means acquainted with the character and manner of hand-writing of the said defendant I. D. ? And whether or no is the name I. D. appearing to be set and sub- scribed to the said produced paper-writing of the proper hand-writ- ing of the said defendant I. D, as you know or believe ? Declare, &c. Whether or no were you acquainted with R. D. late of but now deceased, and did you ever see the said R. D. write, or are you by any and what other means acquainted with the character or manner of hand-writing of the said R. D. ? Look upon the paper-writing now produced, &c. whether or no is the name R. D. appearing to be set and subscribed to the said produced paper-writing marked (A) of the proper hand-writing of the said R. D. or as you know or believe ? Declare, &c. To prove wit- ness's signa- ture to an agreement as agent for or on behalf of the defendant ; what passed previously to his signing the Look at the paper-writing marked with the letter (A) and now produced, &c. Whether or no is your name appearing to be set and subscribed thereto for the said defendant of your proper hand-writing ? If yea, when did you so set and subscribe your name thereto, and whether or no had you the instruction or direction of the said defen- dant to sign such paper or any such paper, or to make any such agreement or any other and what agreement with the said complain- ant ; or did you at any time and when previously inform him or in- INTERROGATORIES. 712 • timate to him that you would on his part sign such paper or make exhibits. any agreement to any such or what other eifect with the said com- plainant, and did he approve of such your intention or how otherwise ; whethe"the or did you at any time and when at first afterwards inform him or defendant ap- in any and what manner intimate to him that you had such paper or proved there- made any agreement to any effect with the said complainant and did ° ' he approve thereof or how otherwise, or with what authority and with what intention did you so sign and subscribe the said paper writing or agreement ? Set forth, &c. ** Are you acquainted with the character or manner of hand- writing [ *713 of the said M. S. and the said A. W. and J. W. or either and which To prove the of them? If yea. Look on the paper-writing now produced and execution of shown to you at this the time of your examination marked with the ""J .agreement ■,,,^"' . •' , •T-i.Tt-i which had letter (A) purportmg to be an agreement between the said M. b. on been signed by behalf of the said A. W. and the said J. F. bearing date , and the agent of at the names M. S. and J. P. thereunto subscribed, and declare "j^g ""^^ P^""' whether the same be of the respective hand-writing of the said M. S. ' and J. F. as you know or for any and what reason believe ? And look at the name A. Gr. set and subscribed as an attesting witness to the execution of the said agreement, and is the same of your proper hand-writing, and did you see the execution of the said agreement by the said M. S. and J. F. or either and which of them ? And look at And the me- the memorandum indorsed on the said agreement purporting to be a morandum in- ratification of the said agreement by the said A. W. and the name of j, su^h party A. W. thereunto set and subscribed ; Is the said name of the proper ratifying the ' hand-writing of the said A. W. as you know or for any and what ^'^^ °^ ^^'^ reason believe ? Declare, &c. ^^^° ' *Do you know the character and manner of band- writing of ? To prove bills If yea, look upon the exhibits now produced and shown to you at °^ exchange, this the time of your examination marked respectively and pur- notes' &c^ porting to be bills of exchange and promissory notes drawn indorsed or accepted by the said , and look at the names thereon re- spectively written as drawer indorser or acceptor of the said bill or bills of exchange promissory note or promissory notes or some and which of them ; Are the names thereon respectively written of the proper hand-writing of the said as you know or for any and what reason believe ? Declare, &c. Look upon the bond or paper-writing now produced, &c. whether To prove the or no was the said produced writing at any time and when signed execution of a sealed and delivered or in any and what manner executed by any scribing wh-^' person and whom in your presence? And is your name set and sub- ness, or if scribed as a witness thereto of your proper hand-writing, or whether dead by per- or no were you acquainted with any person or persons whose name g^^^^^th^t^"'" or names appear to be set or subscribed to the said bond or paper- hand-writing 50 713 INTERROGATORIES. EXHIBITS. of the sub- scribing wit- ness or wit- writing as a witness or witnesses thereto ? And did you ever see such' person or persons write, or were you by any and what other means ac- quainted with the character or manner of hand-writing of such person or persons ? And is or are the name or names of such person or persons so set and subscribed to the said bond or paper-writing of his her or their proper hand-writing ? And whether or no is or are such person or persons now living or dead, and if dead, when and where did he she or they die as you do for any and what reason know or believe ? Set forth, &c. [ *714 ] To prove the preparing a bond by wit- ness as solici- tor to a person since dead, for securing pay- ment of a sum of money by tiie plaintiffs ; also to prove the bond as an exhibit ; the objection taken by them to the bond being prepar- ed as a com- mon money bond ; also to prove as an exhibit the minute made by wit- ness of the ac- tual consider- ation of the bond and by whose desire, or to prove the contents and purport there- of. To prove the witness's at- testation of the bond, and what conver- sation passed between the plaintiffs and *Interrogatories to be exhibited, &c. [^seep. 685, antea,^ in a cause wherein J. L. the elder and J. L. the younger are plaintifiFs, and E. T. and J. Gr. are defendants, on the part and behalf of the said complainants. 1st. \_Tke general interrogatory as to knowledge of parties ; see p. 688, antea.'] 2d. Whether or no were you in the year employed by T. C. late of in the county of but now deceased and in the plead- ings in this cause named as his attorney ? Whether or no did you in that character or otherwise at any time and when in or about the month of prepare a bond to be executed by the said com- plainants for the payment of the sum of 1, to the said T. C. Look upon the paper-writing now produced, &c. ; Whether or no is such paper-writing the said bond so prepared by you as aforesaid ? Whether or no did the said complainants or either of them in the presence of the said T. C. or otherwise object to the said bond being prepared as a common money bond, and for what reason and what passed thereupon between the said complainants or either of them and the said T. C. or yourself, and whether or no were you at any time and when desired by any person and whom and in whose pre- sence to make a minute in writing of the actual consideration of the said bond, or to any such or the like and what effect, and whether or no did you make any such minute and whether or no with the consent or in the presence of the said T. C. and whether or no did you then or at any time and when read over such minute to or in the presence of the said T. C, and the said complainants or either of them ; and did the said T. C. make any and what observation thereupon ? Look upon the paper-writing now produced, &c. Whether or no is the said paper-writing the minute so written by you as aforesaid, or what hath become of such minute, and set forth the contents and purport thereof to the best and utmost of your recollection and belief? De- clare, &c. 3d. Look upon the paper-writing now produced, &c. Whether or no is your name set and subscribed as a witness thereto of your pro- per hand-writing ? When and where and in whose presence did you so set and subscribe your name as a witness thereto ? Whether or no previously to the execution of the said bond did any conversation pass between the said complainants or either of them and T. C. in INTERKOGATOKIES. 714 the said bond named, as to the consideration of the said bond ? If exhibits. yea, Set forth the particulars of such conversation and what was said ttt thereon by the said T. C. and the said complainants or either of them to the consi-'' ' or any other person or persons to or in the presence or hearing of deration of the said T. C. ? Declare, &c. the bond. Lastly. \_The last generalinterrogatory ; «ee p. 688, awiea.] Observations. — The bill charges the bond to have been given for the purchase of T. C.'s interest in two farms, farm and farm. By the answer it appears that T. 0. had not at the time farm, and there is therefore a plain mistake in the bill which ought to be amended before the replication is filed. The motion to amend *should be amending defendant's oflBce-copy, and requiring no fur- [ *715 1 ther answer and will create therefore no delay. Inquiry ought to be made of Mr. H. as to this minute in writing. If he has it he must be served with a subpoena duces tecum to produce it upon his examination. If he delivered it over it may be necessary to give notices or to take other measures before parol evidence can be given by Mr. H. of its contents. Look upon the two bonds or paper-writings now produced and To prove the shown to you at this the time of your examination marked with the execution of letters (A) and (B) ; Whether or no were or was the same or either ^nd under ' and which of them made and executed by you at the times they res- what circum- pectively bear date or when else and under what circumstances and stances. for what considerations respectively, and on what terms and condi- tions were you articled as a clerk to the testator W. G. in the plead- ings in this cause named ? Declare, &c. * Whether or no was any case during the life of the said Sir To prove that T. B. submitted to any and what counsel or other legal person ?■ F?!^ was and whom by name for his advice and opinion upon any matters re- counsel and lating to the said memorandum of agreement or release or either by whom, and and which of them, and if yea, by whom was such case so submitted *be points and by whose authority and directions and what were the points cgungei's opU thereby submitted for such opinion and advice ? Set forth, &c. nion. * Look upon the exhibit or paper-writing now produced and shown To prove as to you marked with the letters Z. Z. and purporting to be a case ^° exhibit the stated by you the before-named M. S. for the opinion of C. S. esq. ^^^ laid'^^be- formerly of Bream's Buildings, with his opinion thereon, dated the fore counsel, 24th day of August 1790 ; Whether or no are the same such case with his opin- and opinion respectively and by whom was the said case drawn up ^°^ ^rUterT' and prepared and in whose hand-writing is the same, and is the opinion thereunder written in the hand-writing of the said C. F. or was the same written by his authority and dictation as you do for any and what reason know or believe, and did you receive the same in answer to the case so submitted to the said C. F. as aforesaid ; 715 INTERROGATORIES. EXHIBITS. And whether or no did you or any other person being the agent of ~ or in any manner employed by the said Sir T. B. or by the said de- vrhethe^-wit- fendants or either of them prior to or in the month of September, ness, by the 1790, submit any other case than that set forth in the last mentioned direction of a exhibit Upon any other question concerning the said memorandum of son^or^of Us" agreement and release or either and which of them for the opinion own siigges- and advice of the said C. P. or any and what other counsel or legal tion, laid any person for his advice or opinion ; And whether or no did you state fore^counse'l*^' such case and take such opinion of your own authority or sugges- reiative to the tion Or by any direction from the said Sir T. B. for that purpose ; matters before And whether or no did he ever know of such opinion being taken or submitted to jiear or see the same ? Set forth, &c. counsel. ' [ *716 ] * Look upon the paper or exhibit now produced and shown to you To prove a ^^ this the time of your examination marked (A) : From whom and catalogue of upon what occasion did you receive the same, and was the same de- sale as an ex- Hyered to you or to any other person to your knowledge or belief and by whom as a particular or catalogue of any and what sale ? Declare, &c. an exhibit. To prove the Whether or no doth the said produced writing marked A. contain contents of the words following or any and what other words that is to say; [^Setting out the instrument verbatim.] Have you or not at any time and when and with whom examined and compared the said pro- duced writing with the words set forth in this interrogatory as being a copy thereof ? Declare, &c. To prove as * Whether or no did the said defendant C. L. as you do for any an exhibit the and what reason believe deliver or cause to be delivered unto the copy made by g^[^ g_ J) jjj j^jg life-time a written account or any writing purporting directiou'of a to he an account of some debt or debts or sum or sums of money deceased per- that Was Or were due or owing by or from the said S. D. to the said son, of an ac- defendant 0. L. ? If yea. In what character and language was such had'been'de- 3'CCount or writing written or made out, and when or about what liTered to him time was the same delivered to the said S. D. and what was or were of moneys the particular or particulars of such debts or debt sum or sums of °^'°h Uan™' money, and how much did the same amount unto in the whole as you guage the ac- know remember or believe ? Whether or no did the said S. D. as count and the you know or do for any and what reason believe peruse or examine copy thereof ^j^g gg^i^ account ? Did Or did not the said S. D. ever deliver the said th b rva- ' ^^count to you ; If yea. When or about what time and for what tions which purpose did he deliver the said account to you ? Did you or did the deceased you not by the Order or direction of the said S. D. or otherwise and wrote on the j^g^ g^j. g^j,y ^-i^^g gjj^ when make or write a true copy of the said what Ian- account ? If yea. In what language and character and for what pur- guage ; pose was such copy made or written, and was or was not such copy and requiring at any time and when and by whom delivered to the said S. D. ? And the witness to ^; j gj. ^j^j j^gj. ^^^ gg^jd g. D_ at any time or times and when peruse or INTERROGATORIES. 716 examine the said copy, and did he or did he not in his own hand- exhibits. writing or otherwise and how and in what language and character "j — and at or ahout what time or times make or write any and what ggp. distin- minutes memorandums or observations on the said copy ? Whether guishmg his or no is the paper-writing marked with the letter (B) and now pro- °^'^ and the duced by you, or any and what parts or part thereof of your own ^anT-writing. hand-writing ? If yea. How much or what part or parts thereof is or are of your own hand-writing ? And how much and what part or parts thereof is or are of the hand-writing of any other person or persons and whom as you know or do for any and what reason be- lieve ? Is or is not the said paper-writing marked with the letter (B) the copy which was made or taken by you of the aforesaid account ? If yea. Translate the said paper-writing marked with the letter (B) *and all the minutes memorandums and observations written or made [ *717 ] thereon into and set forth the same in the English language, and in making such translation distinguish and point out the English of so much or of such part or parts of the said paper-writing as was or were written by you, and also the English of so much or of such part or parts of the said paper-writing as was or were written by any other person or persons and whom ? Declare, &c. Look upon the said paper- writing or agreement now produced, &c. ; To prove a Whether or no did you at any time and when and where deliver to copy of an a- the said defendant any paper-writing purporting to be a copy of fng^been'deU- the said paper- writing, and was the same a true copy thereof? And veredtothe whether or no did you at the time of delivering such copy produce defendant. to the said defendant the said original paper-writing or read the same to him, and did anything and what pass between you and the said defendant thereupon ? Declare, &c. * Look upon the exhibit now produced and shown to you at this the jg p^g^g ^g time of your examination marked ; Is or not the same the copy an exhibit a made or caused to be made by you of the said draft lease previously copy of a draft to the alterations made therein ? And is or not the said exhibit a ?I!!7!,'Jl?^f ° true and exact copy of such draft lease previously to such altera- tions being tions ? Declare, &C. ™a,de therein. * Look upon the paper-writing or exhibit now produced and shown To prove a to you at this the time of your examination marked with the letter copy of an ; Did you compare or examine the same with any and what i°\'he*Bank^'^ books or book of the Governor and Company of the Bank of Eng- stock books. land or with any and what book or books entry or entries or not ? If yea, Does the same contain a true copy of such book or books entry or entries with which you so examined or compared the same or not? Declare, &c. 717 INTBKROGATORIES. EXHIBITS. Look upon the parchment-writing now produced, &c. purporting „ to be a copy of a court roll ; Did you at any time or times and when copy of a carefully examine the same with the court roll to any and what ma- court roll, nor by name? If yea, is the same a true copy of the court roll of which the same purports to be a copy as you know or believe ? De- clare, &c. To prove as Look upon the paper-writing now produced and shown to you at an exhibit a ^j^jg ^hg time of your examination marked with the letter (A) ; Did entneTon^the 7°^ ^* ^^J *™® °^ times and when and where examine the same with court rolls (in any entries or entry thereof made in the court rolls or court books of proving the *the manor of M. in the county of H, and are or is the same or any mano™)^ ° * ^^^ which of them true copies or a true copy of such entries or r *718 1 ^"^^^J ■ Declare the truth and your knowledge herein. To prove co- Look upon the paper-writings now produced and shown unto you pies of entries at this the time of your examination marked with the letters A., rolls ^ '^°"'^' ^'' ^^' ' Whether or no did you at any time and when and where ex- amine the same with any entries thereof made in any and what court rolls of the manor of K. in the pleadings in this cause mentioned ; And whether or no are the same true copies of such entries ? De- clare, &c. To prove a Look upon the paper- writing now produced, &c. Did you at any copy of an en- time and when and where carefully examine the same with any entry reaistCT^book t^®''^°f made in the register book of any and what parish or place? ' If yea, Whether or no is the same a true copy of such entry? De- clare, &c. To prove co- Look upon the paper-writings now produced and shown to you at pies of entries this the time of your examination marked respectively with the letters b"okf of" '^■' "'^■' ^^' ' W^sther or no did you at any time and when and where births, buri- carefully examine the same with any entries thereof made in the re- als, &c. gister books of any and what parishes or places and are the same true copies of such entries respectively ? Declare, &c. To prove co- * Look upon the writings now produced to you marked No. 1, &c. pies of entries What do the Same severally purport or appear to be? Did you ever bapfems^'^bu- *°*^ when examine the same or any and which of them with any rials, &c.' and what registers or register of baptisms or burials kept in any and In whose cus- what parish or place ? If yea. When did you so examine the same, tody the regis- and in whose custody or power were or was such registers or re- whomThe en- S^^^^^ respectively? Are or is such produced writings true copies or tries relate, transcripts of any and what entries in such registers or register con- and by what corning any and what person or persons, and who is or are or was w^ acrul^nt- °^ '^^'■^ ^"^^ person or persons respectively as you know or for any ed with them, and what reason believe, and particularly were you ever and when and by what means acquainted with such person or persons respec- tively ? Declare, &c. INTERROGATORIES. 718 * Look upon the paper-writings now produced and shown to you exhibits. at this the time of your examination marked respectively with the letters ; Did you compare and examine them or either and pies^of^nhles which of them with the register books of or kept for any and what in parish re- parishes or places, and are they or is either and which of them gisteis as re- true copies or a true copy of any and what entry or entries in any gong nientfon- and which of such register books as you know or for any and what ed in the reason believe? And do any or either and which of such exhibits as pleadings, you for any and what reason know or believe relate to the births mar- ^°fg*/i.ek- riages or deaths of any or either and which of the persons mentioned tionship in the pleadings of this cause ? And what degree of relationship did which such *such persons respectively bear to the said intestate J. N. ? De- P^^on bore to ds '^ ■' a deceased are, &C. person. ■ [ *719 ] What is the proper Ecclesiastical Office for the probate of wills of to prove persons dying in the parish of W., commonly called in the search made county of W. ? Whether or no have you carefully examined such ^"^rtrula"^ office for the purpose of finding wills of J. 0. late of, &c. who died persons, and in or about the year , and of T. C. late of , who died in discovery or about the year ? If yea, Have you found any will of the said ^^^^ of J. 0. or of the said T. 0. or either and which of them, or doth it ap- fp™"of adm^in- pear that administration of the goods chattels rights and credits of istration to the said J. C. or of the said T. C. was at any time and when granted *eir estates ; to any person or persons and whom ? Look upon the paper-writings ^^^° ^° P™^e now produced and shown to you at this the time of your examination ^°[gg j^ jjjg ;.e. marked with the letters A. B., &c. ; Whether or no are the same true gister books of copies of entries in the register books of the said Ecclesiastical office ? ^^^ Ecciesias- Set forth, &c. ^''^^ O*^"- * Did you at any time and when receive any and what hand-bills To prove as an from any person or persons and whom by name relating to or for the ^^'^''"'A''.??''' discovery of A. Gr. in the pleadings of this cause named ? If yea, distributed for Look upon the exhibit now produced and shown to you at this the the discovery time of your examination ; Is the same a true copy of such hand-bills of a person. as you know or for any and what reason believe, and did you distri- bute or cause to be distributed any and what number of such hand- bills of which the said exhibit is a copy in any and what place or places and by any and what means ? Declare, &c. Look upon the paper-writings now produced and shown to you at To prove co- this the time of your examination marked respectively with the let- J^o^,^g°on"to^bI ters F., G-., &c. ; Whether or no did you at any time and when and stones. where carefully examine the same with any writings or inscriptions • upon any and what tomb-stones or monuments in any and what churches or church-yards ? If yea. Whether or no are the same true copies of such writings or inscriptions respectively ? Declare, &c. 719 INTERROGATOKIES. EXHIBITS. * Look upon the paper-writing now produced and shown to you „ at this the time of your examination marked , and purporting copy of a ^ to be a copy of a judgment in his Majesty's Court of at judgment. Westminster, in a certain cause in which are plaintiffs and defendants. Did you compare and examine the said paper- writing with any and what record or roll, and where did you so [ *720 ] ^examine and compare the same, and is the same a true copy of such record or judgment? Declare, &c. To prove co- pies of judg- ments. * Look upon the paper-writings now produced and shown to you at this the time of your examination respectiyely, marked with the letters , and respectively purporting to be copies of judgments in his Majesty's Court of at Westminster against the said E. P. Did you compare or examine all or either and which of such paper- writings or writing with any and what record or roll, and where did you so examine or compare the same or either and which of them, and are or is the same or either and which of them true copies or a true copy of such records or record or judgment or judgments re- spectively ? Declare, &c. To prove the copy of an in- quisition oflu- nacy, and of the order di- recting a tra- verse. [The commis- sion of lunacy being under the great seal proves itself.] * Look upon the paper-writings or exhibits now produced and shown to you at this the time of your examination marked respec- tively Did you compare and examine both or either and which of such exhibits with any and what original filed or kept in any and what office? And when did you so examine and compare the same or either and which of them respectively, and are they or is either and which of them respectively true copies or a true copy of such originals respectively? Declare, &c. To prove as exhibits co- pies of maps or plans and of a book of re- ference, the originals whereof "were directed by Act of Parlia- ment to be de- posited in a particular of- fice; also to prove that a piece of land and stone quarry were comprised in the original maps. * Have you or not ever and when examined the maps or plans and book of reference mentioned and referred to in and by the Act of Parliament in the pleadings in this cause mentioned ? If yea. Where were such maps or plans and book of reference then kept or depo- sited ? Look upon the maps or plans and book of reference now pro- duced and shown to you at this the time of your examination marked with the letters ; Are or is such last-mentioned maps or plans and book of reference or either and which of them so far as the same relate to the piece of ground mentioned or described in the said ori- ginal maps or plans and book of reference mentioned or referred to in and by the said Act of Parliament as No. 15 in the parish of , true and correct copies or a true and correct copy of such original maps or plans and book of reference ? And have you or not at any time and when examined the same with such original maps or plans and book of reference ? Were or not the said piece or parcel of land and quarry in the preceding interrogatory mentioned comprised or included in the said original maps or plana and book of reference under the said description of No. 15 in the parish of at the INTERROGATORIES. 720 time of the passing of the said Act of Parliament as you know or do exhibite for any and what reason believe ? Declare, &c. * Look upon the exhibit now produced and shown to you at this To prove the thetime of your examination marked with the letter ; Is the copy of a no- "^said exhibit a true copy of any and what original paper, and did [ *721 J you or not at any time and when compare the said exhibit with any tice, and when and what original paper ? And did you or not at any time and when ^""^ °°"S®h, • ,• 1 ° '^ " it"' t 1 -^ wasservedjDy in particular serve upon or denver to any and what person or per- whose direc- sons upon any and what occasion and by whose order or direction, tion, and by the said original paper of which the said exhibit is a true copy, and '^'^°™ s'g°«'J- what did such person or persons say at the time of the service or de- livery of such original paper, and by whom was such original paper signed, and how do you know who signed such original paper ? De- clare, &c. ^} * Look upon the'parchment or paper-writings produced and shown To prove co- to you at this the time of your examination marked respectively with pi^s of re- the letters A. &c. ; Whether or no do or doth the same or any or '^°'''^^' either and which of them contain a true copy or copies of any and what record or records of any and what court or courts of any and what original or originals of which the same do or doth purport to be a copy or copies ? Have you or not carefully examined or compared the said produced papers or writings or either and which of them, with such, if any record or records or other original or originals, and when where and with whom ? Declare, &c. * Look upon the paper-writings now produced and shown to you To prove co- at this the time of your examination, and marked with the letters P'es of original ; What do the same severally purport or appear to be ? Are or jq whose cus- is the same or any and which of them true copies or transcripts or a tody the same true copy or transcript of the whole or any and what part of any and '^^^^' ^°^ ^^^ what original writings or writing, and did you examine and compare ^f^"^"^ the said produced writings or any and which of them, and in whose custody or power were such original writings respectively or any and which of them at the time you so examined and compared such pro- duced writings therewith respectively ? What did such original writing purport or appear to be ? Declare, &c. * Look upon the exhibit now produced and shown to you at this To prove the the time of your examination marked with the letter (B) ; Is or not registering of such exhibit a true copy of any and what register or enrolment of ^^^j g{ ^^g any and what deed in any and what office for registering of deeds in registry, and any and what county ? And did you or not compare such exhibit ^^^ indorse- with any and what record or original enrolment in any and what ™g^gtratiou' office for the registering of deeds in any and what county ? And do on the ezhibit. T21 INTBBEOSATOEIBS, EXHIBITS, you or not know when such enrolment was made ? And is not such register or enrolment the register of the said exhibit marked (A) in the preceding interrogatory mentioned and referred to ? And is not such register or enrolment indorsed on the said exhibit marked (A) and is or not the said indorsement a true copy of the registry of the said deed in the registry boo"k for any and what county? Declare, &c. [ *722 ] * Look at the parchment- writing now produced and shown to you To prove as at this the time of your examination marked with the letter (B) pur- an exhibit a porting to be a Counterpart copy of a lease from the said A. W. to aTease^and"^ the said J. H. bearing date the — day of ; Did you or did that the same you not examine the said counterpart with any and what deed from corresponded to J. K. of , and is Or not the said parchment-writing a Telse o/the'' *™^ ^°VJ of the same ? Declare, &c. same pre- mises. To prove a corporation seal affixed to a deed. * Do you or not hold any and what oflSce under the Ecclesiastical Corporation of the Dean and Chapter of the Cathedral Church of the Blessed Virgin Mary of S. ? If yea, Do you or not know the common seal of and which is used by the said Corporation ? If yea, Look at the exhibit marked and now produced and shown to you at this the time of your examination, and look at the seal thereto affixed and annexed : Is the said seal the common seal of the said Corporation of the Dean and Chapter of the Cathedral Church of the Blessed Virgin Mary of S. ? And if yea. By whose order direction and au- thority and when and by whom was the said seal affixed or annexed to the said exhibit as you know or for any and what reason believe ? Declare, &c. To prove the * Was or not the said testator J. M. deceased at the time of his debt due to death justly and truly indebted to the said complainant in any and accorfTrT t "^^^^ s^™ 0^ sums of money on simple contract ? If yea. Look upon the particu- the paper-writing now produced and shown to you at this the time lars contained of your examination marked ; Does or not the said paper-writing in an exhibit, contain a just or true account of the particulars of such debt or debts, and are or not the charges therein contained fair and reasonable as you know or for any and what reason believe ? Declare, &c. To prove the Look upon the deed or writing now produced, &c. ; Whether or no execution of a .^3,8 such deed or writing at any time and when signed sealed or de- deed by the ,. , . t. Tin., subscribing hvered m your presence by any person or persons and whom ? And witness. were you a subscribing witness to the signing sealing or delivery thereof by such person or persons ? And is your name indorsed and set as a subscribing witness thereto of your proper hand-writing ? Declare, &c. INTERROGATORIES. 722 * Look upon the [paper or] parchment-writing now produced and exhibits. shown to you at this the time of your examination marked with the letter (A) and purporting to be a settlement made on the marriage marriage set- of the said J. B. viith the said A. R. ; Did you or not see the same tiementbythe signed sealed and delivered and by whom respectively and when subscribing and where and in whose presence ? And look upon the names ^'*°^^^^=- — subscribed thereto ; Are such respective names of the respec- tive *hand-writing of the said ? And look upon the names [ *723 1 signed as witnesses to the said exhibit; Is either and which of those names of your proper hand-writing, and did you see either and which of the said other witnesses write their names as witnesses thereto, and were you and such other witnesses present at the time the re- spective parties or either and which of them signed sealed and de- livered the said deed ? Declare, &c. *Look upon the exhibit now produced and shown to you at this To prove the the time of your examination marked with the letter (A), and look execution of a upon the indorsement on the back of the said exhibit; Did you or not ^^e^^t'^o^'^the^' at any time and when see the said exhibit sealed and delivered by consideration any and what person or persons and delivered as the act and deed money by the of any and what person or persons and whom by name ? And did you subscribing or not see the indorsement or acknowledgment at the back of the said exhibit signed and by whom, and did you or not see the money in the said acknowledgment mentioned to have been received paid and by and to whom ? And are the names indorsed and set as one of the subscribing witnesses to the sealing and delivery of the said exhibit and the receipt of the said consideration-money of your own proper hand- writing ? And are the names and characters in- dorsed and set as the names of the other subscribing witnesses attest- ing the sealing and delivery of the said exhibit and the receipt of the said consideration-money of the proper hand-writing of the said or whom else, and did you see the said set his name as a sub- scribing witness to the due execution of the said exhibit and the re- ceipt of consideration-money ? Declare, &c. * Look upon the exhibit or exhibits now produced and shown to you General inter- at this the time of your examination marked , and look upon the rogatory to indorsement on the back of the said exhibit or exhibits respectively; P'^?^„® *^f !,^*" _.., . 1, , .,,., .^,., r' cution or one Did you or not at any time and when see the said exhibit or exhibits or more deeds or either and which of them sealed and delivered by any and what by the sub- person or persons and delivered as the act and deed of any and what scnbmg wit- ■^ ^ ii « *11 QATT'i 116SSCSj EtHCllDC person or persons and by whom respectively by name r And did you signatures to or not see the indorsement or indorsements acknowledgment or ac- the receipts knowledgments at the back of the said exhibit or exhibits and either i°'io''sed. and which of them signed by any and what person or persons and by [W^liere the whom by name, and were you or not a subscribing witness to the furnished are sealing and delivering of the said exhibit or exhibits or either and not sufficient- which of them by any and which of the parties thereto, and to the '? accurate.] signing of the receipt or receipts for the said consideration-money by any and what person or persons, and is your name set or subscribed as such witness to such sealing and delivering and to such receipt 723 INTERKOGATORIBS. EXHIBITS, respectively of your own hand-writing, and is or are the name or names of the other subscribing witness or witnesses attesting the seal- ing and delivering of the said exhibit or exhibits or either and which of them or the receipt or receipts of the said consideration-money of the proper hand-writing of such respective witnesses or either and which of them, and set forth how and by what means you are ac- quainted with the character or manner of hand-writing of the said other witnesses to the said exhibits or either and which of them, and [ *724 ] did they or *either and which of them sign and attest the execution of the said exhibit or exhibits and either and which of them by any and what person or persons and the indorsement on the back thereof by any and what person or persons in your presence ? Declare, &c. To prove the Look upon the deeds or parchment-writings now produced, &c. ; deeds*ami'tlie ^^^ther or no Were or was the said produced writings or either and signature to a which of them at any time and when signed sealed and delivered or reoeiptindors- in any and what manner executed by any persons or person and ed on the back ^hom j^ your presence, and is your name set and subscribed as a of one of them. .. ,i , <• , "^ n ■,• o t i j.t. •^• Witness thereto ot your proper hand-writmg l Look upon tne writing indorsed upon the back of the said deed or parchment-writing mark- ed (B) and purporting to be a receipt for the sum of 1. ; Whether or no was such writing so indorsed at any time and when signed by any person and whom in your presence, and is your name set and subscribed as a witness thereto of your proper hand- writing ? Set forth, &c. To prove aa an exhibit a lease which had been ten- dered to the defendant; also to prove applications made to him to accept the lease and exe- cute a count- er-part, and the reasons of his refusal. [See the first interrogatory in p. 724, an- tea.] To prove cer- tain letters as having been written by the witness, and the receipt of the sums therein men- tioned. *Look at the parchment-writing now produced and shown to you at this the time of your examination marked with the letter (C), pur- porting to be a lease from the said complainant A. W. to the said defendant, and bearing date ? Did you or not at any and what time and by whose order or direction tender the said lease and the counterpart in the preceding interrogatory mentioned or either and which of them to the said defendant, and did you or not at any and what time and by whose order and direction request the said de- fendant to accept the said lease and execute the said counterpart, and did or did not the said defendant refuse to comply with such re- quests or either and which of them and for what reason as you know or for any and what reason believe ? Declare, &c. Look upon the paper-writings now produced, &c. Whether or no were or was such produced writings or either and which of them or any and what part thereof, or the name H P appearing to be set and subscribed thereto of your proper hand- writing ? And whether or no did you duly receive the several sums therein respec- tively mentioned or any and which of them according to the purport and eifect of the said paper-writings or either of them ? Declare, &c. To prove a let- Look upon the paper- writing now produced and shown to you at INTERROGATOKIES. 724 this the time of your examination marked .with the letter (A); Of exhibits. whose hand-writing is the said paper-writing and the name R. R. set ~7~ and subscribed thereto, and the superscription or direction thereof as theroUcitoro'f you know or for any and what reason believe? Who acted as the the defendants solicitor or solicitors of the said complainant with respect to the pur- 'p *e plain- chases in the said bill of complaint mentioned ? And whether or no *'*'^ solicitor. did the said R. R. in any and what manner act with respect to the said purchases on the part and behalf of any and which of the said defendants ? Declare, &c. * Look upon the letter or paper-writing now produced, &c. ; [ *725 ] Whether or no is the said produced letter or paper and the signature To prove a let- thereto and the direction thereof or either and which of them of your ter as being in proper hand-writing or of the proper hand-writing of any person and o'j^n^'anT^'^ whom employed by you, or was such letter or paper-writing written writing, or as by any person and whom by your direction and instruction or with having been your approbation or privity, and what was your motive or induce- ^nttenorsent ment for such letter or paper-writing being written and sent by you tion and\he or by your direction or instruction or with your privity or appro- motive or in- bation, and did not such motive or inducement equally apply to the •^up^'nent for said defendant T. B., and if not why ? Declare, &c. """''"^ ''■ * Are you or not by any and what means acquainted with the To prove a let- character or hand-writing of L. N. in the pleadings of this cause ^^^^^^. ^J^ ^^" named? Look upon the paper-writing or letter now produced and hand-writing shown to you at this the time of your examination marked with the and signature letter (A), and purporting to be a letter written by L. N., and bear- and the occa- ing date the 31st day of October 1789; In whose character or hand- be;ng°written ■ writing is the said letter written, and in whose character or hand- ^■^^^ j^ ^^^ writing is the name L. N. signed or subscribed thereto, and when and written to one upon what occasion was the said letter written ? Is or is not Mr. J. °^ *^ defend- to whom the said letter purports to be directed the said defendant received the* J. J. ? Whether or not did the said J. J. ever receive the said letter ? same. Whether or not did you know or were you by any and what means Also to prove acquainted with the said L. N. ? If yea. How long did you know ^ow long wit- him, and whether or not was he the steward or agent of Sir T. B. in ^f,f;„Tff !f^."- 1 1 T • 7 • TO 1X71 11 1 quaintea with the pleadings in this cause named : Whetner or not do you know the person the reason why or what it was that induced the said L. N. to write who wrote the the said letter ? If yea. Whether or not was the said letter written on ^"g^gj.J^ard''* account of or in consequence of any applications made to the said to Sir T. B.; Sir T. B. or to the said L. N. respecting the purchase of the coals the reason in the said letter mentioned? If yea. Set forth when and by whom which induced such applications were made and the purport and effect thereof, and tu°\ *{! ^"/jf + all the particulars relating thereto ; Set forth the situation of the jt was in'con- lands under which the coals lay which were the subject of such ap- sequence of plications? What do you understand to have been the meaning of ^PP'l^^*'°°^'° the words "Cold Harbor, &c. at Wibsey" in the said letter con- ["jn'^joai *^*'^' tained ? Do you know or can you set forth whether or not the said lands and by defendant J. J. or the said J. H. the elder after the said 31st of Oc- whom made; tober 1749 had any interview or meeting with the said Sir T. B. or T^'^ meaning with the said L. N. for the purpose of treating respecting the pur- expresston"ir 725 INTERROGATORIES. EXHIBITS, chase of the coals in the said letter mentioned ? If yea, Set forth "~~ when and where and upon what occasion such meeting took place, and whether ^^^ ^6* forth to the best of your remembrance and belief the con- any meeting versation that passed at such meeting, and who was present thereat, took place re- specting the purchase of the coals, and what passed thereat. To prove two * Look upon the exhibits now produced and shown to you at this htbft? andthe *^® *™® °^ J°^^ examination marked respectively with the letters hand-writing, , and purporting to be letters addressed by you to some person signatures, and whom by name, and dated respectively 18th March 1811, [ *726 ] *and the 19th day of April in the same year; In whose hand-writing and super- are the said two exhibits respectively and especially the signature and scriptions, superscription, and to whom by name were the same respectively ad- addressed °™ dressed and sent and by what means, and what was the situation or and his situa- employment of the person to whom the said respective letters were tlon in life ; go directed and sent, and by what means are you enabled to state also to prove that the same respectively were addressed and written to such per- the hand-wri- ^^^^ ^^^ -^^ whose hand-writing is the indorsement on the back of ting or an in- •. ,., . , ,, -./-vi°nj -i-yo-i-i ii i dorsement on the Said exhibit dated the 19th of April 1811, and by what means the back of are you enabled to state the same ? And whether or no are or is the °°d "Vther' ^^^^ exhibits respectively or either and which of them the original the exhibits letters Or letter addressed and sent by you as in the former part of are the origi- this interrogatory mentioned or a copy or copies thereof or extract nal letters or qj. extracts therefrom, and how do you know and are you enabled to tracts^ there-' State the Same? Declare the truth together with your means of from. knowing and reasons for believing the same. To prove a no- Look upon the paper-writing now produced and shown to you at ticesenttothe this the time of your examination marked with the letter (B); Of plaintiff's so- -^hose hand-Writing is the said paper-writing and the signature thereto sol'ic°itor"for ^ and the superscription thereof? Whether or no was the said paper- the defend- writing sent to the said complainant or any person and whom on his ants, and the behalf at any time and when by you or by your direction? And sienat^re 'ami '^'^hether or no were you employed as the solicitor or attorney of the address. ' said defendands R. R. and C. his wife and R. W. or any or either and which of them in the matter of the purchases made by the said complainant and in the said bill mentioned ? Declare, &c. To prove ser- Whether or no did you at any time in or about the year , and vice of notices on or about what day or days in particular deliver to the said com- pfaintlffs bv pl3,inants respectively or either and which of them and where, any whom signed, and what writing purporting to be a notice from the defendant of her and the con- desire that the defendant should not be disturbed in the possession of tents thereof; ^^j g^jj^ what house, or to any such or the like eifect ? Was or not as^aa°exhi'bit *'^® name of the defendant subscribed thereto or to either and which a copy made of them ? Were both such notices or writings in the same words and INTBEEOGATOBIBS. 726 figures or in any and what respect different from each other ? Did exhibits. you or not keep a copy of each or either and which of such notices or ~ — writings which if any were or was so delivered ? Look upon the theToticea." paper-writing now produced and shown to you- at this the time of your examination marked with the letter (B) ; is the same or not a true copy of each or either and which of the notices or writings which if any were or was so delivered ? Did you or not ever examine and compare the said produced writing with the notices or writings so delivered or with either and which of them ? Declare, &c. * Look at the exhibit now produced and shown to you at this the To prove a time of your examination marked (A) ; Is or not the same the par- printed par- ticular *which was produced by the vendor or the agents of the ven- *"="'^^ °^ ^^'^ dor at the time of the sale of the premises in the pleadings of this L '^' J cause mentioned ? And is or not the said exhibit the particular by ^s the one by which the said premises were sold, and was or not the said exhibit ^^ were?oTd^" read to the company present at the said sale, and was or not the by auction. same declared to the said company to be the particulars and con- ditions of sale. Declare, &c. Look upon the paper-writing now produced, &c. and purporting to To prove a be a promissory note for 1, from A. B. deceased in the pleadings promissory of this cause named to the said complainants, and bearing date the day of ; Whether or no did you ever see the said A. B. write, or are you by any other and what means acquainted with the character and manner of his hand-writing ? And whether or no is the name A. B. appearing to be set and subscribed to the said pro- duced paper-writing of the proper hand-writing of the said A. B. as you for any and what reason know or believe ? Declare, &c. * Look at the exhibits now produced and shown to you at this the to prove re- time of your examination marked respectively A. B. C, and look at ceipts by per- the names respectively signed to such exhibits ; Do you know the ed^wU*!? "th™'' parties whose names respectively appear to be set or subscribed to hand-writing the said respective exhibits, and are you by any and what means ac- of the party quainted with the character or manner of hand-writing of either and signing the which of them respectively? If yea. Of whose hand-writing is or are such exhibit or exhibits, and in particular of whose respective hand- writing is or are the respective names set or subscribed to such re- spective exhibits ? Set forth the reasons on which you form your belief; Declare, &c. Look upon, &c. Whether or no were or was any and what receipts To prove re- or receipt indorsed thereon or on any or either and which of them ceipts indors- at or about any and what times or time by any and what persons or l^ °^^ ^^^^ 727 INTJiKKUWATUitlJiJiB, EXHIBITS, person in your presence ? Are you or not a subscribing witness to ., ■: . the signing of all or any or either and which of such receipts by all or any or either and which of such persons, and of whose hand- writing is your name now appearing to be set or subscribed as a witness to all or any and which of such receipts. Declare, &c. ness. To prove a Look upon the paper or parchment-writing now produced and Will by the at- ghown to you at this the time of your examination marked with the nesses^ ^' ' letter (A) and consisting of sheets or skins ; Whether or no was the said produced writing at any time and when signed sealed published and declared by W. H. late of the testator in the pleadings in this cause named, as and for his last will and testament in your presence and in the presence of any other person or persons [ *728 ] *and whom by name ; or did the said testator in any other and what manner execute the said produced writing, or acknowledge the same as and for his last will and testament in your presence and in the presence of any other person or persons and whom ? Whether or no is your name and the name or names of the other person or persons set or subscribed as a witness or witnesses thereto, of your his or their proper hand-writing respectively ? And whether or no did you and such other person or persons or either and which of you set or subscribe your name or names as a witness or witnesses thereto in the presence of the said testator ? And whether or no is or are such sub- scribing witness or witnesses now living or dead ? And if any or either of them are or is dead, where and when did such witness or witnesses die as you for any and what reason know or believe, and if any or either of them are living, where do they respectively or where doth he reside? Whether or no was the said testator at the time of his signing sealing publishing and declaring the said produced writing as and for his last will and testament, or otherwise executing or ac- knowledging the same, of sound and disposing mind memory and understanding, or how otherwise, as you for any and what reason know or believe ? Set forth, &c. [Or thus:^ * Look upon the paper-writing now produced and shown to you at this the time of your examination marked with the letter (A) ; Did or not the said testator J. M. deceased sign seal publish and declare the said paper-writing as and for his last will and testament in the presence of you and of any other and what person or persons, or are you or not a subscribing witness to such the signing and publishing or execution of the said will by the said testator J. M. and are or not the several names set or subscribed as witnesses to the signing and publication or execution of the said will by the said testator J. M. of the proper hand-writing of you and of such other person or persons whose names appear to be subscribed, and did or not you and such other person or persons respectively subscribe and set your and their names as witnesses to the signing and publication or exe- INTERROGATORIES. 728 cution of the said will by the said testator J. M. in the presence of exhibits. the said J. M. and of each other, or how otherwise, and what is now become of such other persons, and where do they respectively now live and reside, or are or is any or either and which of such persons now dead ? And if yea. When and where did they or he die ? And was or not the said testator J. M. at the time of signing and pubUsh- mg or executing his said will of sound and disposing mind memory and understanding as you know or do for any and what reason believe? Declare, &c. *Look upon the writings now produced to you, and marked with To prove a the letters (A) and (B) and purporting to be the last will and testa- ^i'l and codi- ment of J. P. in the 2d interrogatory named, and a codicil thereto? "f t^eTub"-"^ Did you at any time and when see the said J. P. sign seal pubHsh scribing wit- and declare the said produced writings or either and which of them nesses is dead. as and for her last will and testament and a codicil thereto, and is the *name J. P. set and subscribed to the said produced writings res- [ *729 ] pectively, or either and which of them, of the proper hand-writing of the said J. P. ? Were you and was or were any and what person or persons besides yourself present at the time when such produced writings or either and which of them were or was so signed sealed published and declared, and did such persons or person or any and which of them see the said J. P. sign seal publish and declare the said produced writings or either and which of them, and did you and any other and which of such persons or person set or subscribe your their his or her name or names to such produced writings respectively or either and which of them as a witness or witnesses thereto, or to either and which of them, and, was or were such name or names, or any and which of them so subscribed in the presence of the said J. P. or not ? Is or are your name or names or the name or names of any other and what person or persons appearing to be set or sub- scribed to such writings respectively or to either and which of them as a witness or witnesses thereto or to either and which of them, of your hand-writing or of the hand-writing of such person or persons respectively, or of any and which of them, and did you see such per- son or persons or any and which of them set and subscribe such pro- duced writings or either and which of them ? Is or are such person or persons or any and which of them dead ? And if yea. When did they respectively or any and which of them die ? Was the said J. P. at the time she signed or sealed published and declared such produced writings or either and which of them of sound mind memory and understanding ? Declare, &.c. Whether or no were you acquainted with the manner of living of To prove the the said A. B. ? And if yea. At what sum upon the average do you average annu- compute the annual expenses of himself and his family to have been, ^he^femir^of '^ other and beside his travelling expenses, and whether or no had the a person de- said A. B. any child who did not live in his family and in what situa- ceased, who tion was such child, and have you ever heard the said A. B. make ^T"^ '" his life- ^ 7 ./ time employ- 729 INTBRROSATOKIBS. ed as a trea- any and what declaration or declarations as to what such child sury messen- annually cost him, and do you know the manner in which the said declarations ° ^- ^- usually travelled in the journeys in which he was employed as made by him treasury messenger and at what expense ? Declare, &c. as to what oae child not resident in his family annually cost him, also to prove the manner in which he usually travelled, and at what expense. To prove whe- ther a person had other means of pro- viding for his family besides what he re- ceived as a treasury mes- senger. [ *730 ] To prove the state of a fami- ly in proving a pedigree. Whether or no had the said A. B. as you for any and what reason know or believe, any and what means of providing for the expenses of himself and his family and for the expense of journeys, other than from the moneys which he from time to time received from the said F. G. ? Declare, &c. Whether or no did you know M. S. formerly of, &c. and when or *about what time did the said M. S. die ? And whether or no did you know W. 0. formerly of, &c. and S. C. his wife, and was the said S. C. in any manner and how related to the said M. S., and when or about what time and where did she die, and what children had the said S. C, and what children survived her, and if any child or children of the said S. C. died in her life-time, did such child or children have any child or children, and what is become thereof? And whether or no did you know J. C. of, &c. the son of the said S. C, and S. C. the younger and E. C. the daughters of the said S. C, and did the said S. C. ever and when marry, and when and where did he die, and whether testate or intestate, and had he or did he leave any child or children ? And if yea. What is become thereof ? And did the said S. C. the daughter of the said S. C. ever and when marry and to whom and when and where did she die, and what chil- dren had she or did she leave ? And whether or no did you know W. C. and T. 0. sons oi the said S. 0. the younger, and what became of the said W. C, and did he ever and when marry as you know or believe, and did the said T. C. ever and when marry, and where and when or about what time did he die and whether testate or intestate, and had he or did he leave any child or children ? And if yea, What is become thereof? And did the said B. 0. the daughter of the said S. C. the elder ever and when marry and to whom, and when or about what time did she die, and had she or did she leave any child or children ? And if yea. What is become thereof? Whether or no did you know the father of the said W. C. of, &c. the husband of the said S. C. the elder, and what was his name and where did he live, and when or about what time and where did he die, and what child or children had he besides the said W. C, and who was his eldest son and who was his second son, and did his eldest son in case the said W. 0. was not his eldest, or if the said W. 0. was his eldest did his second son at any time and when and where marry, and when and where did he die, and had he or did he leave any and what child or children ? And whether or no is the said complainant his eldest son or who else is such eldest son ? Set forth the particulars at large, according to the best of your knowledge remembrance and belief, and the truth declare. INTERROGtATORIES. 730 * Whether or no were any changes made in the out-fences of the Toprovewhen two farms in the pleadings mentioned to have been occupied by alteration was James K. and John K. respectively at any time within your memory, ™u^t-fen"ce*of and how long have you known the said farms respectively, and espe- two farms, cially were any changes made in the out-fences thereof in or about whether rent or prior to the year 1773 or at some and what other time in par- was paid as for ticular? And whether or no were you and during what period of *7one™rm'^ time in particular in the habit of attending at the collection of pay- ^nd whether ment of rents to Sir T. B. in the pleadings named or to his agent, one person at- at the place and on the days of the collection and payment thereof, tended, at the and did you attend at any and what dinner and by and to whom dly*"rn(iTt given on such days? And if yea. Whether or no during such the dinner *period as you attended thereat, «,nd especially before the year 1773 r *73l ] and for some and what time prior thereto did one person attend to g;,en to the pay rent and attend at the said dinner as the sole tenant or occupier tenants as sole of the said two farms, or did two persons so attend as several and tenant of the distinct occupiers the one of the one farm and the other of the other ^h°ethertX of the said two farms, and whether or no was the rent for the said persons at- farms paid as two separate rents paid by two tenants, or as one gross tended as ten- rent paid by one ? And whether or no as you do for any and what ^°'^ ' reason know or believe were the said two farms prior and how long ^tether'^pre- prior to the said year 1773 assessed for and did pay government taxes viousiy to the and parish rates as two separate and distinct farms or as one joint J^'^^ i^'rs, and undivided farm ? And whether or no in the year 1789 and how !^f^^ '^"'^ , ., 1-1 f '' 11 rates were as- long previously thereto were the said two farms commonly known sessed as for and reputed in the neighborhood thereof to be one joint farm and two farms or held by one tenant or two separate and distinct farms held by two ^^ °°^ ^'^'^"^ > tenants, and for what reason were the same so reputed, and state the ^hefarm*^'^ various occupiers of the said two farms and under whom they have reputed to be respectively occupied, and the names and descriptions whereby the one farm or said two farms have been known since you have known the same ? '^° farms. Declare the truth and your utmost knowledge remembrance and belief herein. Do you know of any goods having been at any time previously to To prove the month of sold or delivered by the said complainant H. H. goods sold and or by the said complainant J. A. to the said defendant R. P. ? If the'pWnti'ffs yea. Set forth what goods were so sold and delivered by the said to the defend- complainants H. H. and J. A. or either and which of them to the ant. said R. P., and what was the value thereof, and at what time or times in particular the same were delivered to the said R. P. and how and by what means in particular you are acquainted with the several matters aforesaid ? Declare, &c. *Look on the several books or exhibits, now produced and shown To prove the to you at this the time of your examination, marked respectively with hand-writing the letters ; Are you or not and by any and what means ac- ^^^^"^[q'^^ quainted with the character or manner of hand-writing of the person books, whe- 731 INXERR0GAT0KIE3. ther the same or persons who made the several entries in the said books or any and are correct or ^hich of them? If yea, Of whose hand-writing are such entries or correct to ^^7 ^^^ which of them, and who made such entries or occasioned prove io what such entries to be made as you know or for any and what reason be- respects they Keve ? Are the entries and accounts therein contained just and right as you know or for any and what reason believe? If not. What error or errors are therein contained ? Set forth the same error or errors, if any, fully and distinctly ? Declare, &c. To prove the *Look upon the book now produced and shown to you at this the hand-vfriting j.;^g ^f y^^^. examination marked with the letter (A), and on the made in a entry or entries made therein in folio ; Are you acquainted with r *732 1 *^^^ character or manner of hand-writing of the person or persons , , , who made such entry or entries, or any or either and which of them, book, and tti i "^ -i ii-ipi ■whether the and did you see such person or persons or either and which oi them persons who write ? If yea, Of whose hand-writing is or are such entry or made such en- g^tj-ies or either and which of them or any and what part thereof as tries are living , ,,. ,. ,•' '^ ... or dead, and 7°^ know or believe, and is or are such person or persons living or by whose di- dead that made such entry or entries or any and what part thereof, rectiou the ^nd on what occasion or by whose direction was or were the same or made. ^^J ^^^ what part thereof made as you know or believe ? Declare, &c. To prove the *Did you know A. B. in the pleadings of this cause named, and deceased" per- ^^^ ^^7 ^^^^ what length of time ? If yea, Do you or not know whether son as being he was ever married, and had he or not any child or children by his hisheiratlaw. wife, and what was or were the name or names of such child or child- ren, and which of such children was the eldest son, and is such eldest son now living ? Declare, &c. To prove the *Did you know E. M. in the pleadings of this cause named, and brother of a foj. any and what length of time ? If yea, Do you or not know son^as^bemg' whether he was ever married, and if not, had he any brothers and hisheiratlaw. what were their names and the order of their births, and which of them have survived him, and which of them was his eldest brother ? Declare, &c. To prove the *Did you Or not know J. E. the testator in the pleadings of this nephew of a cause named ? If yea, Do you or not know whether the said J. E. son^^as behig ^^^ ^^'^"^ carried, or whether he had any legitimate child or children, hisheiratlaw. or whether such child or childen survived him or died in his life- time, and whether such child or children left any and what issue, and whether such issue is or are now living ; and do you or not know whether the said testator J. E. had any brothers and sisters, and what were their names, or whether they or either of them survived him, and whether either and which of such brothers and sisters had any child or children, and what were their names, and which was the eldest son of the eldest brother of the said testator, and do you or not know who is- the heir at law of the said testator ? And if yea, In INTEBROaATORIES. 732 ■what degree of kindred is he to the said testator, and how does he appear to be his heir at law ? Whether or no did the said T. B. and J. E. or either and which To prove that of them, or any other person and who on their or either and the defendants which of their part and behalf, at any time and when after the ^j^n^g th^ir date of the aforesaid letter or paper-writing call at your office or solicitor, of see you elsewhere and where and inform you or any other person their intention and whom on your part and behalf that they or either and otjjeTsoUcitor" which of them had employed or meant to employ Mr. J. or any and when it other person than yourself as their solicitor in the said cause, and first came to *when and by what means did you first know or had reason to be- J"? know- lieve and suspect that the said defendants or either and which of f^noo i of them had or meant to employ the said Mr. J. or any other person L J than yourself as the solicitor in the said cause ? Declare, &c. Whether or no did you at any time and when before the said To prove -whe- cause came on to be heard inform the said defendants T. B. and J. ^''^ witness E. or either and which of them that you should instruct counsel to clients two of appear for them at the hearing or did you at any time and when the defend- receive any instructions from the said defendants or either and '^"^^ '°,u , j^ which of them so to do, or did you in fact give any briefs or in- ghoui^ in. structions to counsel to appear for the said defendants or either struct counsel and which of them other than the briefs delivered by you for the ^° appear for other defendants, and did you not previously to such hearing and ijea'Jing what when first know that the said Mr. J. as the solicitor for the said instructions defendants T. B. and J. E. had taken copies of the depositions and he received had prepared or meant to prepare briefs for the instruction of coun- and'wherti'er sel at the hearing on the part of the said defendants or one and he did in fact which of them ? Declare, &c. deliver briefs to counsel other than the briefs delivered for other defendants and when he first knew that anothersolici- tor had prepared briefs for counsel. Whether or no did you know W. G. late of but now de- To prove a ceased, the testator in the pleadings of this cause named, for any and knowledge of how long a time previously to his death, and did you know S. J. the enUred'the nephew of the said testator, and in what profession or situation of navy, and in life was the said S. J. ? Did the said S. J. ever and when serve on ^^at ^^arac- • board his Majesty's ship U. and in what character and what has be- ^^^ become of come of the said S. J. as you know or for any and what reason be- him; lieve ? Declare, &e. Look upon the paper- writing now produced and shown to you at also to prove a this the time of your examination marked with the letter (A) ; '=°PJ "^ ^° e°- Whether or no did you at any time and when compare the same il,t"at^he°° with any entry in any and what book kept at his Majesty's Navy navy office. 733 INTERROGATORIES. OflBce, and whether or no is the same a true copy of such entry? Declare, &c. To prove for * How many years as you do for any and what reason know or how many believe prior to the year 1780 was the said L. N. land agent to the waT'empfoyed ^^^^^ ^ir T. B. Or to the owners and proprietors of the said W. estate as land agent and whether or no as you do for any and what reason know or be- to the proprie- Heve prior to the year 1780 was the said L. N. land-agent to the said tate '(con'taiu- ^^^ "^^ ^- °^ ^'^ *^® owners or proprietors of the said W. estate, and ing coal whether or no as you do for any and what reason know or believe mines); also was the Said L. N. during the whole or any and what part of such h* k'°t^ d^**' period accustomed to keep such diary or account as is contained in or account of ^^^ exhibit which has been shown to you or any and what diary or his agency, account of his agency or of the matters relating thereto, and up to and when he •^yhat period of time in particular did he keep such diary or account of keeping same. *^^^ ^g^^y, and why did he then cease or discontinue keeping the r *734 1 same, and whether or no did he ever afterwards keep any and what diary or account of his said agency or the matters relating thereto, and if not why not ? Declare the truth and your utmost knowledge remembrance and belief herein. To prove the * When and upon what occasion did the said S. D. come to live residence of a ^^^^ reside in England and for how long time did he live or reside person in Eng- ,qtii ti) -ir-iT-vi n land and in there ! In what language did the said a. D. always or generally whatlanguage write or correspond and converse during the time of his residence in he correspon- England, and was he or was he not conversant in the English Ian- versed ■ ' gii^g^ • -^^6 J°^ ^^ ^i"® J^^ ^^^ ^^'1 o'* ^^ ^T^7 ^^^ what degree ac- alsotoprovea quainted with the character and manner of hand-writing of the said knowledge of S. D., and have you or have you not frequently or at any times and his band-writ- Jjq^ often Seen him write in any and what language or languages and whatworkshe character? Did or did not the said S. D. when he was resident in was engaged, England manage or carry on or employ himself in or about any work and where he or works ? If yea. Of what nature sort or kind was or were such same! °" ^ work or works, and when and for how long time and at or in what house or houses or place or places was or were the same so managed or carried on ? Declare, &c. To prove the Do you know of any money having been at any time previously to loans of sums ^^g month of lent or advanced by the said complainant H. H. the^pkin^tiffl o'" ^J ^^^ ^^^^ complainant J. S. to the said defendant R. P. ; If yea, to the defend- Set forth what sums of money were so lent and advanced by the said '^°t. complainants H. H. and J. S. or either and which of them to the said R. P., and at what time or times in particular the same and each of them were and was so lent and advanced and how and by what means in particular you are acquainted with the several matters aforesaid? Declare, &c. INTBRKOGATOKIES. 734 * Whether or no did the said defendant C. L. in the life-time of Toproveloans the said S. D. lend or advance unto the said S. D. any sum or sums °^ ^"™l°^tj, of money ? If yea, What sum or sums of money and to what amount defendant to a in the whole did the said defendant 0. L. lend or advance unto the deceased per- said S. D. in his life-time, and when or at or ahout what time or son, and whe- times was or were the same so lent or advanced ? And did or did not ^^^ i^e'paid'''^' the said S. D. at any time or times in his life-time and when repay such sum or sums of money or any or either and which of them unto the said defendant C. L. or satisfy him the same? Declare the truth of the matters inquired after by this interrogatory according to the best of your knowledge remembrance 'and belief, together vfith the grounds reasons or circumstances on which such your belief is founded, fully and at large. Whether or no was there on the day of any and what To prove tbe sum of money due and owing to the above-named complainants T. amount due to *B. and B. B. and their partners in the R. Bank in respect of mon- [ *735 ] eys advanced by the said complainants to or for the use or on the the plaintiffs account of the said T. D. and B. B. and their said partners or how ™ ''^^P^c' °^ otherwise and what is now due to the said complainants in respect made by them thereof ? Set forth, &C. as bankers. * Do you or not know whether the said J. B. deceased and A. R. To prove mar- also deceased in the pleadings of this cause named did at any time "age ceremo- and when intermarry together or not? If yea, Were you present at "Jpfe^^t^"^^" such marriage ceremony or not, and by whom and in the presence of what witnesses and at what place and when and on what day in particular was such marriage solemnized and whether by banns or license? Declare, &c. Whether or no was the said J. C. in the preceding interrogatory to prove a mentioned or inquired after ever and when married and to whom, marriage, and and what was the maiden name of his wife ? Had or not the said J. *j^g*]Ja^ '^^g" C. any and what children or child or issue by his said wife or by any daughter. other wife and whom by name, and particularly had he or not a daughter called by the name of , and had he or not any other children or child and of what names or name ? Declare, &c. Whether or no do you know or were you acquainted with the said To prove a A. C. in the preceding interrogatory mentioned or inquired after for ^^"'efj^ of "^ any and how long time and from and to what time ? Did or not the the wife. said A. C. ever and when intermarry with M. H. late of, &c. and now deceased, and when and about what time did the said M. H. die ; Declare, &c. * Whether or not have you ever been employed in mining concerns To prove that or are you acquainted with coal mines and the manner in which coals witness has are won and got ? If yea, Set forth the nature of your profession or erhi^iSning" 735 INTERROGATORIES. concerns, and occupation and how you came to be acquainted -with the nature of orthe°co!if ^^ ^°^^ mines and the method of winning and getting coals ; Whether mines lying OT Dot do you know the R. H. estate in the pleadings in this cause under an es- mentioned and the mines and minerals lying thereunder and the es- ***s ! tates in the pleadings in this cause mentioned to have been the pro- cUnaUon"'^ '"" perty of Sir T. B. in the pleadings in this cause named deceased or thereof from ^^J of them ? If yea, Set forth how long you have known them and the horizon, each of them and how and by what means you became acquainted and the nature -^j^jj them; Whether or not are there any coal mines strata of coal the drains or *"* minerals lying under such estates or any part thereof? If yea, soughs made State what is the dip or inclination of such coal mines from the hori- for the pur- zon ; Whether or not was it necessary for the purpose of winning Fng^off th"^" ^^^ g^t^ing such coals or coal mines that the same should be loosed water and Or freed from water ? Whether or not did Mr. L. in the pleadings in lopsing the this Cause mentioned drive any drain or make any sough or soughs *^°^ ^ ' for *the purpose of loosing the coals and coal mines lying under the L '^^ ] said R. H. estate? If yea, Set forth and describe particularly the also to prove nature of such drain or drains sough or soughs and set forth parti- lying under^ ^ cularly the direction and course of such drain or drains sough or lands within a soughs from the tail or opening thereof where the water is discharged ring-fence throughout the full extent of the driving of and the making of the i™!,.q ^^^A same ; Whether or not are the coals and coal mines lying under the loosed, and , , ' , , ... , . „ . , ■, ' ■,■ ■ i • areinacondi- lands and grounds within the ring-tence m the pleadings in this tion to be cause mentioned now loosed and in a condition to be worked won and ^Tuf*^ 'd^'f " S°* without the aid of a steam engine to pump up and discharge the steam engine • water therefrom ? If yea, Whether or not are such last-mentioned also to prove coals and coal mines so loosed and in a condition to be won and got whether the by means of the said drain or drains sough or soughs ? And whether same \vere so ^j. jjqj. jg |.jjg ^^ter drained or carried away from such last-mentioned at the date of , , , . , »,"',. , . , an agreement coals and coal mines by means ot such dram or drains sough or and when and soughs ? Whether or not were such last-mentioned coals and coal by whom the mines SO loosed and drained at the date of the agreement with th« mines were ^^^^ ^^"^ ^' ■^" ^"^ ^^^ pleadings in this cause mentioned? Set forth loosed and when and upon what occasion and by whom such last-mentioned coals drained, and and coal mines were loosed and drained ; Whether or not could the tainVefend-' ^^^^ defendant J. J., and R. H., J. H. and J. D. in the pleadings in ants could this cause named or either of them have prevented such last-men- have prevent- tioned coals and coal mines from being loosed or drained ? If yea, and'lf ^^™^ ^®* ^°'^*'^ ^°^ ^°*^ ^y viha.i means they could have prevented the ii„„ -f tv,„ same from being loosed or drained : If such last mentioned coals and Also It the . Ill 1 11.11 /.!■ mines had not coal mines had not been loosed or drained by means of a drain or been drained sough, whether or not would it have been necessary in order to win by means of a ^^j^^ ^g^. ^j^g game that a Steam engine or steam engines should be the? one or erected for such purpose ? If yea, Set forth how many steam engines more steam would have been necessary for that purpose ; Set forth the original engines would expense or prime cost of such steam engines or steam engine, and necessary and ^^^ forth the annual expenses that would be incurred in keeping in what would repair and in the working of such steam engines or engine ; Suppose have been the the coals lying under the lands occupied by Jonathan K. in the plead- of^'anrof ^'^^' ^"gs ^'i ^^^^ cause mentioned were not loosed or drained and could keeping the not be loosed or drained without a steam engine, what in your opin- INTEREOaATOEIBS. 736 ion would be the present value of such last-mentioned coals and coal same in re- mines? Suppose the coals lying under the lands occupied by James pairandwork- K. in the pleadings in this cause mentioned were not loosed or drained . , and could not be loosed or drained without a steam engine, what in ^jjat would your opinion would be the present value of such last-mentioned have been the coals and coal mines ? Declare, &c. ■*'^'"'> °^ *« ' coalslymgun- der the lands of different tenants, supposing the coals could not have been loosed or drained without a steam engine. * From what points of the compass do the beds or strata of coal To prove the under the said W. estate or under any and what part thereof in i.°'^''°f[''°^ • general rise and sink, and especially from and to what points do the ^g^ of certain beds of coal or either and which of them being underneath such beds of coal parts of the said estate as lie to the west of the sough or drain in the 'y'°s under last preceding interrogatory mentioned rise and sink, and from and ^j- an^estaS ^ *to what points do such of the beds of coal under the said estate as r ^itqit t lie on the east of the said sough or drain rise and sink respectively, *• -^ and from what distance therefrom do they rise or sink respectively ? Declare the truth and your utmost knowledge remembrance and belief herein. * Whether or no supposing a bed or vein of coal to have a general To prove that inclination downwards from one given point to another is it common ^l'?l°^ "?■ . lO..^^ . , ,. „ 111 which inchae or uncommon to lind occasional variations in the dip ot such bed or downwards, vein between the two points aforesaid ? And if yea. Whether or no occasionally is the coal to be found under the lands and grounds in the second of '!?■''{ ^° *^, these interrogatories mentioned or referred to as much or more sub- tjje coaia un- ject to such occasional variations than beds or veins of coal to be der the lands found under other lands and grounds in general, and assuming such mquestionare occasional variations to exist and a sough or drain driven along that guch'^Taria- - side of the bed which according to the general inclination would be tions,andsup- the lowest side, how would such parts of the coal as might occasion- posing a ally vary from such general inclination be loosed and worked? De- along the low- clare the truth, together with your means of knowing and reasons er side, how for believing the same. would the coal found in the parts varying from the general inclination be loosed and worked. * Whether or not had the said complainants or those through whom To prove that they claim sunk any pits or pit or made and erected any steam engines JJ'^j P'^'^*''''?^ or steam engine or got any coals or coal in the lands and grounds oc- and erected cupied by the said Jonathan K. in the pleadings in this cause men- steam engines tioned at the date of the agreement therein mentioned? If yea. Set on the lands of forth when such pits or pit steam engines or steam engine were or tenant at the was sunk made and erected ; Set forth the purpose for which such date of an steam engines or steam engine were or was made or erected ; Whether agreement, or not were the said defendants or their or any of their stewards game"wer°e *^ agents or tenants informed of or acquainted with or were they privy sunk and erec- to the sinking making and erecting such pits or pit engines or engine? ted and the If yea, Set forth when and to whom and by whom such information ^'^^^1^^^^!^^°'^ was given ; Whether or not was a Mr. B. the steward or agent of steam engines T37 INTERROGATORIES. ■were erected, the Said defendants or either of them ? If yea, Did he ever inspect th^d'feM'"^ or overlook the said defendant's estate at W. in the pleadings in this ants or their cause mentioned ? If yea, Whether or not did he upon such inspec- stewards, tion See the said pits and engines ? Whether or not are such pits and agents, or ten- engines large objects and easy to be seen at a considerable distance ? formed^there- Whether or not is a person of the name of H. the steward or agent of or privy of the Said defendant's W. estate ? If yea. Whether or not did the thereto. said H. about eight years ago inspect or overlook the said es- ^h° h° ^™^^ *^^® ■ WJisther or not did you then see him, and if yea, Was he when mer steward'^' 7°^ ^^^ ^^"^ ^^ ^^^^ ^ situation that he could see the said pits and of the defend- Steam engines and other works in the lands and grounds occupied by ants inspected the Said Jonathan K. ? Declare, &c. the estate, and i saw the pits and engines, and that the same might have been seen at a considerable distance ; Also to prove that the present steward some years ago, inspected the estate, and that he could see the pits, steam engines and other works. [ *738 ] ** Whether or no in grants or leases of coal where there are two To prove the heds or strata of coal whereof the upper bed or stratum is united to method of or intermixed with or contiguous to a bed of iron-stone is it neces- workiDg coals ga,j.y ^g you do for any and what reason know or believe to dig and are two strata g^* ^^^ upper bed of coal before the iron-stone can be dug and got and one of and vice versa ; and whether or no is it usual to sell and dispose of them IS inter- guch upper bed or stratum when the iron-stone is not also sold and bed of iron- disposed of, but if nevertheless the upper bed of coal should be sold stone, and in and the iron-stone reserved, whether or no would any and what pro- case of the visoes and stipulations be necessary in order to prevent a grantee in pe/s°ratum'of *^® ^^® °'' ^^^^^^ having the power so to work the said upper bed of coal what sti- coal as to destroy entirely or to damage greatly and in what manner pulations are the Said iron-stone from delaying to work and dig such bed of coal usua ymade g^ ^ \ocls. up and render useless the said iron-stone as long as he to prevent the •■,■,■■, ^ i i • • i • ■> ■ tti grantee from might think fit, and what provisions and stipulations would be proper destroying the and necessary for the purposes aforesaid, namely, 1st. What provi- iron-stone, or g^^g a,n(J stipulations are necessary and proper to prevent the lessee to DrCVSDb tll6 • t/ X X i. iron-stone o^ grantee so working such upper bed of coal as to destroy or greatly from being damage the said iron-stone ; and 2dly. What provisoes and stipula- rendered use- tions are proper and necessary to prevent the said iron-stone from grantor at the ^^i^ig locked up and rendered useless to the grantor at the will of ■will of the the grantee in fee, and whether or no did you ever hear of a grant grantee, and or lease of any upper bed or stratum of coal so united and intermixed ^s'havecome °'" Contiguous as aforesaid with provisoes or stipulations proper for within the the above purposes, and by whom and to whom was any such grant witness's or lease made ? Set forth, &c. knowledge. • To prove no- * Had or not the said defendant at any time or times and when in tice given to particular and how and in what manner and upon what occasion or the defendant ' . j i x i- • c i- • ,■,■■, of the plain- occasions any and what notice or intormation given to him by or on tiffs claim to behalf of the said complainant or any other person or persons and an estate, and -^hom by name, or otherwise and how, that the said complainant had same -was b^e- ^"^ claimed to have some and what right title or interest in or to the INTERROGATORIES. 738 premises in the pleadings of this cause mentioned ? And if yea, Was fore or after such notice or information so given to the said defendant before or ^^^ defendant after and how long before or after he the said defendant had any thereon! ^^^^ and what lien charge or security upon the said premises or how otherwise ? Declare, &c. * Did you at any time and when and by whose authority make any To prove an and what offer to the said complainant relative to the subject-matter °^^'^ J"?"^? *° of this cause or any and what part thereof? And if yea, On whose t^^P'*'"™- behalf ? Set forth all you know touching or concerning the matters inquired after by this interrogatory fully and at large. ** Are you or not acquainted with the several manors and other [ *739 ] freehold hereditaments situate in the counties of in the plead- To prove that ings in this cause mentioned or any and which of them ? Were you witness was or not employed as the surveyor and agent for and on behalf of any g^yey^r on' and which of the said several parties in the preceding interrogatory the partition inquired after in the partition of the said several manors and other of estates; his hereditaments in the pleadings of this cause stated ? If yea. When ^he^riiotmenfs or at what time and by which of the said several parties were you and as to a so employed ? And did you or not act as such surveyor or agent in particular the business of such partition, and are you or not acquainted with '^^f™ '" ^ .f* ., in, , T . .1 •! • ^-1 allotment it the several allotments made to the said parties respectively or any ^as compris- and which of them and to whom ? And do you or not know a certain ed; that a farm called W. farm in the pleadings of this cause mentioned ? If P'eoe of land yea, where or in what parish or parishes is the same situate, and did jjjm ^g form- er not the said farm called W. farm form part of any and which of ingpartof the the said allotments made in the partition of the aforesaid manors farm, and was and other hereditaments and to whom was the same allotted? And ^^^^ ^^^^ ^o do you or not know a certain piece or parcel of land situate in White whom. Meadow, containing eleven acres or thereabouts, in the pleadings in this cause particularly mentioned ? Was or not such piece or parcel of land ever and when and by whom shown to you as forming part of any and what farm comprised in the aforesaid partition between the said several parties, and was or not the said piece or parcel of land situate in White Meadow included in the allotment of the said farm called W. farm or in any and what allotment on the partition of the aforesaid manors and other hereditaments, and to whom was the same allotted as you know or for any and what reason believe ? Declare, &c. * Were or not the several allotments of the said manors and other To prove whe- hereditaments made to the said parties respectively in the first in- ^^^'^ ""® ^■'^°'' terrogatory named on the partition thereof of equal value or what "p^^n^heTpar. was the difference in value between the said allotments respectively titiouofeer- as you know or do for any and what reason believe ? And did or tain estates not the allotment made to the said complainants comprise or contain "^^^^ ° eqnal a certain piece or parcel of land forming part of a certain meadow ^^^ ^^^^ ^■^^^ called White Meadow in the pleadings of this cause particularly men- allotment tioned as and for owelty or equality of partition, or why or for what made to the 739 INTERROGATORIES. plaintiffs com- reason was the said piece of land forming part of the said meadow prised a par- galled "White Meadow comprised or included in the allotment made ticular piece , ., . oat i ■ t • rij ofiandaspart ^0 the Said complainants : And was or not the said piece oi land of a farm, forming part of the said meadow called White Meadow allotted unto [which piece the said complainants subject to tithes as part of and together with been"ho''wn to *^® ^^^^ freehold farm called W. farm ? And in particular was or not the surveyor the allotment made to the said complainants of equal value with the by mistake as several Other allotments-made of the said manors and other here- being part of ditaments as you know or do for any and what reason believe? the farm :1 -rv i o , ^ Declare, ac. also to prove ' whether the allotment made to the plaintiffs was of equal value with the other allotments. [ *740 ] * Interrogatories relating to partnership matters. Interrogatories to be administered, &c. wherein S. W. is complainant, and T. P., H. J. F., E. F., S. G-. F., M. F. and S. F. are defendants, on the part and behalf of the said complainant. 1st. \_G-eneral interrogatory as to knowledge of parties ; vide antea, p. 688.] To prove how 2d. Whether or no did you ever and when first live and in what long witness situation and at what age with J. F. and R. J. F. both late of, &c. but the serTice^of °°^ deceased in the pleadings of this cause respectively named, and certain de- for how long did you continue with them and when did you quit ceased per- them ; and did you ever and when return to them and for how long sous, and ^j^j ^^ afterwards remain with them and in what situation ? Whe- WilCQ ll6 l6lt them, and ther or no did the said J. F. ever and when and where and how often whether he declare to you or in your hearing that the said R. J. F. was his part- afterwards re- jjgp jjj a,ny and what trades or business, or make any declarations to as to any de- ^^^^ ^^^ what effect? Whether or no did you ever and when and clarations how often by the directions of the said J. F. make out bills to customers which he may pf t;]je s^id trades or businesses or any of them in the name of ' J. made by J F. ^' ^^^ Company' and who was intended by the word "company" as tbatR. J. F. you know or collected and how from the said J. F. ? And how many was his part- keys were there to the till of the shop in which the said businesses "^''' . were carried on, and by whom were such keys respectively kept, and maleTut the ^^° ^^^ access thereto, and what and whose expenses were paid bills to cus- therefrom ? What name or names was or were painted over the shop tomers ; door in which the said business was carried on, or painted or en- how many graved on the passage door of the house in which the said J. F. and were to^^he ^- "^^ ^- ^^'^^^^ ^^^ ^J whom or by whose direction was or were such till, what names or name painted or engraved, and who was or were intended names were thereby as you know or for any and what reason believe ? Who ap- the°sho "d^"^ r P^^'^^'^ t° ^^^ ^^ masters or partners in the said trades, or businesses, and house ^'^d who had access to all the books of the said trade and make en- door, tries therein and gave receipts for moneys received and in what names ? who appeared Whether or no did the said R. J. F. ever and when and how often INTERROGATORIES. 740 in the presence or hearing of the said J. F. speak of himself as a to act as mas- partner in the said trades or businesses with the said J. F. or to' ne7s°and who such effect ; and did or not the said J. F. upon such occasions deny ],ad 'access to or admit the same or how otherwise ? What part did the said com- the books; plainant take in the management of the family or of the said trades also to prove or businesses as you know or believe ? Set forth the particulars, &c. **' ^' ^v^' oj -iTiTt . • 1 1 • 111 TO spoke or nim- od. What 18 your trade or busmess and where do you live: self as being a Whether or no did you ever and when and for how long deal in partner in the any and what goods with J. F. and R. J. F. late of, &c. but now de- ^^^^^/^l^^' ceased and in the pleadings of this cause named or either and which tijgr he denied of them ? In what name or names were your invoices or bills of or admitted parcels for such goods made out during the life of the said R. J. ^^^ ^'^'^^' ^nd F. and after his death ? Whether or no were or was any bills or piainti^hadin bill of parcels ever returned to you by the said J. F. which had the manage- *been made out in his name alone, and with any and what instruc- '^''"} of ^^^ tions as to making out the same in a different and what manner ? "p'°l^!' Whether or no were you ever and when informed by or did you in L '"^^ J any manner and how collect from the said J. F. that he had any and '^° examine what partner in his said business ; and whether or no did you know ^j^o dealt from the course of any dealings with the said J. F. and R. J. F. that with the de- they were partners together in the said business ? Declare, &c. ceased as to 4th. Whether or no are you a partner in any and what banking- ^^ich the in° house or house of business ? Whether or no did J. F. late of, &c. voices were but now deceased at any time when he was in and when in par- ™ade out, and ticular open any cash account with you and in what name or names; ^Qo^iedge or and whether or no did he upon that or any other and what occa- information sion or occasions make any and what declaration or declarations to that R. J. F. you or to any person and whom in your hearing respecting his ^-^^^J ^"'^'^^'^ brother R. J. F. in the pleadings in this cause also named being in ^^ examine a partnership with him in any and what trades or businesses ? Set banker with forth, &c. whom J. F. 5th. Whether or no were you at any time and for how long em- ^g°iajations*° ployed in any and what situation in the late firm or banking-house made by him of B. and company ? Whether or no had J. F. and R. J. F. late respecting E. of but now both deceased and in the pleadings in this cause ''• ^- ^^^^S ^ named or either and which of them any cash account with the said ^j^jj bim. banking-house during such your situation therein, and what was the -jq examine name or style of such account; and did the said J. F. and R. J. F. or the banker's either and which of them draw in their own names upon such account '^^,^^^° ^J°I,^ and were such drafts honored, and were such accounts with such ^^^ ^ j j ' drafts credited therein afterwards admitted by them or either and both kept a which of them ? Declare,' &c. cash account 6th. What is the right for voting for members of parliament at name^a^d**' ? Whether or no did R. J. F. late of, &c. ever and when vote whether their for any member or members of parliament for the said borough and drafts were in what right and character ; and whether or no did the said R. J. F. |i°°°™^'„^°^ ever and when serve any and what parochial offices in the said borough ? ^m, ^^^.^ Set forth, &C. drafts credited 7th. Whether or no did J. F. in the pleadings of this cause named, therein ad- c i^i ' mitted by them, To prove whether R. J. F. voted for a member of parliament, and whether he served any parochial office in the borough. To prove whether J. F. at the election, made any declarations 741 INTERROGATORIES. respecting upon the occasion of any and what election for a member or members iier°with Mm' ^^ parliament for the borough of make any and what declara- To prove con- *'°'^ ^^^ when respecting his brother R. J. F. in the pleadings of this versations cause named being a partner with him ? Declare, &c. with J. F. re- 8th. Whether or no were you acquainted with J. F. and R. J. F. p?oviSon*'in- ■'^*® °^' ^°- ^"* °°^ deceased the testators in the pleadings of this leaded to be cause respectively named or either and which of them, and how long made for the before their respective deaths ? Whether or no had you at any time plaintiff by and when any conversation or conversations with the said J. F. re- ^im or y . gpg^^jj^g |{jg g^^j^j complainant, or respecting any provision which he To prove a had made or intended to make for the said complainant, or which conversation had been made for the said complainant by the said R. J. F. ? If between R. J. ygg,. Set forth all the particulars of such conversations, and when and respecting the upon what occasions the same passed according to the best of your provision knowledge remembrance information and belief and the truth declare, made for the 9t;h_ Whether or no were you at any time and when and where wiu"ofR'^J ^ present when any conversation passed between R. J. F. and J. F. r *749 1 *both late of, &c. but now deceased respecting any provision made for F and whe *^® complainant S. W. by the will of R. J. F. ? If yea, Set forth ther he then" "^^^^ 'was said both by the said R. J. F. and the said J. F. upon that delivered his occasion ; And whether or no did the said R. J. F. then or at any will to J. F. other time and when deliver to the said J. F. his will or any paper To prove a -which he. described as his will ? Set forth, &c. stock by J F. 10th. Whether or no did J. F. and R. J. F. in the pleadings of and R. J. F. as this cause respectively named or either and which of them at any a gift for the time and when purchase any and what sum in any and what stock that'the same ^"*^ ^° whose names as a gift for the said complainant as you know after the death or for any and what reason believe ; and whether or no was the same of R.J. F. was at any time and when and upon what occasion and by whose advice toTh^'^lafn-"" ^^^^^ ^^^ ^^^^^ °^ *^® ^^^^ ^- '^- ^- transferred into the name of the tiff's name- ^^^^ complainant as you know or for any and what reason believe? also to prove Whether or no did the said J. F. ever and when and upon what oc- declarations casion make any and what declaration respecting his brother R. J. F. ^^ "^t'^' R ' T ^^^^S a partner with him and respecting the share and interest which F. beino- a ' he had in the joint trade and property ? Set forth, &c. partner with 11th. Whether or no were you present in the room with the said him, and his j_ p_ about two days before his death when the said J. F. made any busines". declaration to the defendant H. J. F. and S. F. respecting the said To prove a de- complainant? If yea, Set forth the particulars of such declara- claration tion, and what was said thereupon by the said H. J. F. or S. F.? made by J. F. Declare, &c. fm-e hifdeath, ■'•^th. Whether or no did you on the part of the defendant H. J. respecting the F. ever and when attend any meeting of the said several defendants plaintiff. or any and which of them for the purpose of settling the share of the To prove whe- said H. J. F. in the said J. F.'s estate? If yea, Was the value of Iverlttended *^® ^^^^ '^' '^''^ ^^^^^^ ^^^^ ®*'^*®'^ *° ^^ °^ admitted by the said de- aay meeting fcndants or any and which of them to be of any and what amount in of the defend- the whole ? Declare, &c. ants for the 13th. [Interrogatory to prove exJdhits in the hand-writing of J. F.'] tiingthe°share Lastly. [The concluding generalinterrogatori/ ; Videantea,p.Q8d.'] of H. J. F. and what the value thereof was admitted to be. INTBREOGATORIES. 742 Look at the deed or writing now produced or shown to you at this To prove a the time of your examination marked with the letter (A), purporting partaership to be articles of copartnership between the said W. G. and the said ^ibft.''" ""^ ''^" A. E. Whether or no was the same at or about any and what time or times signed sealed or delivered by any and what persons or per- son in your presence ? Are you or not a subscribing witness to the signing sealing or delivering thereof by the said W. Gr. and the said A. E. or either and which of them ? Of whose hand-writing is your name now appearing to be subscribed or indorsed as witness thereto ? Declare, &c. Were you or not ever and when and for how long between the To prove en- day of — and the ■ day of employed at -— in the county '^Z:^^ 01 in tne conduct or management of any and what trade or in trade by the trades carried on during such time or any and what part of such person em- time in the name of the said W. Gr. or any other and what person or P'°y^'^ '" ^^'^ *persons as his partner or partners ? And if yea, Did you or not L '43 ] during such or any and what part of such time keep any and what management, book or books for the purpose of making entries of any and what °„^ how th?^ kind respecting the dealings and transactions of such trade or trades bills were or either of them ? Look upon the books produced and shown to ™ade out, and you at this the time of your examination marked respectively with ^e^t ■ '^^' the letters ; Were or not the several entries therein or in some and which of them or some and which of such entries made by you ? And if yea. When and upon what occasion and for what pur- pose did you make such entries respectively, and what do the same respectively purport to be ? And did you or not during such time or any part of such time and when, make out or deliver any bill or bills to any person or persons and to whom, for goods sold during such time and when, from such trade or trades or some and which of them ? And if yea, To whom was or were such person or persons charged to be indebted, by the title of the said bill or bills ; and did you or not during such time and when receive from any person or persons and whom any and what sum or sums of money for goods sold from the said trade or trades or some and which of them during such time ? And if yea, For whom and for whose use did you by writing or otherwise and how acknowledge the same to be received ; and was there or not during such time or some and what part of such also to prove time some written or painted inscription in or on the external part ""''^** names of the shop or warehouse in which the said trade or trades or some ^^^^ the'shop. and which of them were carried on, denoting the name or names of the person or persons by whom or upon whose account the same were carried on? And if yea, Set forth what in particular was such writ- ing or inscription in the very words thereof? Declare, &c. Look at the paper-writing now produced, &c. purporting to be a To prove aa proposal for or heads of articles of copartnership between ? '^° exhibit a Whether or no do you know or are you acquainted with the charac- fn^g heads'of"' ter or manner of hand-writing in which the same or any and what articles of co- parts or part thereof are or is written ? If yea, Set forth of whose partnership ; hand-wnting the same and every or any and what parts or part T43 INTEKROGATOEIES. thereof is or are, and have you or not seen such persons or person Also to prove write ? Whether or no was the said paper-writing at any time and that the same ■vyhen and by whose direction sent or delivered to any person or per- toTsrficUor*^ sons and whom in order that regular articles of copartnership might to have regu- he drawn pursuant thereto, or otherwise ; Whether or no did you for lar articles of any time and when, and for how long and where, carry on any and drawn^thl't'^ ^^^* ^^'^'^^ °^ trades in copartnership with the said T. E. upon the the trade was terms Stipulated and expressed in the said paper-writing, or upon carried on any and what terms and conditions ? Look upon the printed news- thrsti^'^ula'-° P^P^i'S "^0^ produced, &c. entitled respectively , and upon the tions contain- advertisement in each of the said newspapers marked ; When ed therein, and and for what purpose and by whose direction were the said seve- aiso to prove j.^^ advertisements or some and which of them inserted in the said rect]on°certain Several newspapers, and were the same or any and which of them advertise- inserted with your knowledge or approbation ? Declare, &;c. ments vrere newspl^pers * ^"^ '''^^^ manner and at what periods were the balance sheets of r *744 1 *^® ^^^^ accounts made up ? Were or not such balance sheets from '- -^ time to time delivered to the said T. B. ? If yea. For what reason th'e^e'xamina- ^^^ foi" what purpose Were such balance sheets made up and deliv- tionofapart- ered to the said T. B. ? Did you or did you not at any time and ner when the -^hen during the continuance of the said partnership between the said of'the copart- ^- ^- ^^^ T. B. and yourself, consider the said T. B. entitled to any nership ac- and what share and proportion of the profits of the said brokage counts were business ? And if the said T. B. had demanded any share or propor- whether'th'e' ^^^^ °^ ^"^"^^ profits in the years when such business was profitable, same were de- should you or should you not have complied with such demand, &c. ? livered to T. Set forth, &C. B. and why ; also to prove whether witness considered T. B. entitled to any share of the profits of the brokerage business and whether if he had demanded a share thereof the witness would have complied therewith. To prove the *Do you and by any and what means know whether the said A. amount of ca- g^ advanced any and what sum or sums of money as and for his by\^partner share of the capital of the said trade in the pleadings of this cause mentioned ? And if yea. Set forth the several sums of money which he advanced for such purpose ; And have you or not examined the said copartnerships books ? And if yea. What sum or sums of money does the said A. B. by the said books appear to have brought into the said trade ? Declare, &c. To prove a "= Do you Or not know the nature and extent of the trade in the partnersinp pleadings of this cause mentioned ? If yea. What was the extent of increased. ' ^^^ said trade at the time of the commencement of the said partner- ship betweeen the said , and was or not the said trade after- wards increased and by whom and to what extent and by what means ? Declare, &c. To prove whe- Whether or no had the said defendants R. and S. or either and therthe defen- ^hich of them any acquaintance or connection with R. C. who was INTERROGATORIES. , 744 some time since your partner, before he became your partner ; And dantswereac- whether or no did your dealings and transactions with the said de- qua'ntt'd or fendants R. and S. depend upon the continuation of your partnership ^^j^ ^ q ^j^g with the said R. C, or upon the personal confidence which the said witness's late defendants R. and S. reposed in you? Declare, &;c. partner; and ^ •' ' whether wit- ness's deal- ings with the defendants depended upon the continuance of the partnership or upon the confidence re- posed in the witness. Whether or no did you in the month of command the packet To prove that boat in his Majesty's service called the , bound from F. to L. ; witness com- and whether or no did you at any time in or about the said month of w"^„^5.'^??*^I make a voyage in the said packet trom J^ . to Jj. and on what the plaintiff day did you sail from F. and on what day did you arrive at L. ? was a passen- *whether or no did the said complainant the Honorable Mr. M. sail [ *745 ] with you as a passenger in the said packet on the said passage ? And ger on a par- if yea, What name did the said complainant assume, and under what ti^^ular voy- name did he pass upon the said voyage ? Set forth, &c. nfme'^he Ts''-''' sumed. Whether or no did you in the month of see the complainant To prove the the Honorable Mr. M. at L. ? If yea, When and where and upon particulars of what occasion did you first see him, and did any conversation then tionYetween pass between you and the said complainant respecting the defendant the plaintiff S. ? If yea, Set forth the particulars of conversation, and what was "■nd witness sa,id thereon by the said complainant and by you respectively, accord- ^efe^Ha^f ^^^ ing to the best of your knowledge remembrance and belief? Whether or no did you on the day of see the complain- To prove the ant the Honorable J. M. at L. ? If yea, When and where and upon particulars of what occasion did you first see him, and what passed thereupon, and conversations when and how soon afterwards did you next see him, and did the said andthedecla- complainant enter into any conversation with you, or make to you rations made any declarations respecting the defendant S.? If yea. Set forth the re^gp''ecu„^^°the particulars of such conversation or declarations according to the best defendant. of your knowledge remembrance and belief and the truth declare. Look upon the letters or paper-writings now produced, &c.. To prove let- marked &c. Of whose hand-writing are the said several letters or J^/^ ^^ «^'^i- paper-writings and every of them, or the superscriptions thereof and ' ^' the signatures thereto, as you know or believe ? And did you ever see the person or persons write whom you believe to have written superscribed or signed the same respectively, or by what means are you acquainted with the manner or character of the hand-writing of such person or persons ? Set forth, &c. * Do you or not know whether the said J. N. the intestate deceased To prove the was ever married and when and to whom, and whether he left any plaintiff's pe- and what legitimate children living at his death or any legitimate dedarations 745 INTERROGATORIES. person re- specting his nearest rela- tions. of a deceased grandchildren or grandchild, or any wife or any father or mother, brother or sister, brothers or sisters, or brother's or sister's children, uncles or aunts, or uncle's or aunt's children respectively living at the time of his death ? And if any. Set forth whom by name par- ticularly. And do you or not know whether the said complainants A. B. and C. D. or either and which of them were or was in any manner and how related to the said intestate J. N. deceased ? And if yea. Set forth their or her or his degree of kindred, and how you make out the same ; and if you at any time heard the said intestate J. N. make any and what declarations touching or concerning any persons in particular and whom by name, being his nearest relations of the whole or of the half blood ; Set forth all you know and ha,ve heard and believe concerning the matters inquired after by this in- terrogatory, according to the best of your knowledge remembrance and belief, with the reasons and circumstances to induce your belief fully and at large. [ *746 ] To prove tliat certain per- sons occupied certain farms until their death ; that, upon their death their son entered and continued in possession until his death ; and that upon his death another person entered into posses- sion. To prove that a person was in possession of lands, &c. until his death ; that he died intestate and without issue ; Also to prove that another person had possession of the lands, &c. and whether he left any family ; * Whether or no were or was the said W. C. and S. his wife or either and which of them at any time and for how long in possession or in the receipt of the rents and profits of any messuages farms or lands in the parish of commonly called , and by whom are such messuages farms and lands now respectively occupied ? And whether or no did the said S. C. continue in such possession or receipt until death, or how otherwise ? And whether or no did J. C. the son of the said W. and S. C. at any time and when enter into the pos- session or into the receipt of the rents and profits of the said messu- ages farms or lands and whether or no did he continue in such possession or receipt until his death, or how otherwise ? And whe- ther or no did T. C. in the last interrogatory named, at any time and when enter into the possession or into the receipt of the rents and profits of the said messuages farms or lands ? And whether or nodid he continue in such possession or receipt, or how other-wise? Declare, kc-. Whether or no was J. C. late of, &c., commonly called yeo- man at any time and when in possession or in receipt of the rents and profits of the freehold and copyhold messuages lands and tenements which were subject to a mortgage which formerly belonged to the late A. M. clerk, and afterwards to the defendant M. M. and now to the defendant T. F. and whether or no did he continue in such possession or receipt until' his death, and when did he die ? Whether or no was the said J. C. ever and when married and to whom, and had he and did he leave any child or children, and whether or no did he die testate or intestate, and who upon his death entered upon such possession or receipt ? And whether or no was T. C. late of, &c. aforesaid at any time and when in the possession or in the receipt of the rents and profits of the said freehold and copyhold messuages lands and tenements, and whether or no did he continue in such pos- session or receipt until his death or how otherwise, and when did he die, and was he ever and when married and to whom, and had he and INTBRROGAXORIBS. 746 did he leave any child or children, and did he die testate or intestate? Also to prove And whether or no was any and what allotment made to the said T. '^^t ^° ^Uot- C. in respect of the said freehold and copyhold lands or any and what mon'iandTas part thereof under any act of parliament passed for embanking the made to him common salt-marsh in the township of W. aforesaid, and for inclosing i" respect of the same? Set forth, &c. the same ' lands. Whether or no did the said F. G. as you for any and what To prove that reason know or believe receive any moneys from the Treasury » treasury or elsewhere and where on the account of the said A. B. and have ^iygT^^n"^^' you ever and in what years and how often seen the said F. G. pay due to another any and what sums of money to the said A. B. in respect of the messenger, moneys so received by him, and whether or no was it the practice ^^^^ ^^ P""^ of the said F. Gr. at such times to take receipts or memorandums for neyssoreceiv- the moneys so paid to the said A. B. or how otherwise, and whether ed, and whe- or no was it as you for any and what reason know *or believe the [ *747 1 general habit of the said F. Gr. to be regular in his, account and to ther he was in take receipts or make memorandums of moneys paid by him or how the habit of otherwise ? Declare, &c. taking re- ceipts for the Whether or no did the said G. G- in the course of the dealings and To prove re- transactions between him and the said T. D. frequently or how often ^'"^ii'^es of for any and how long time receive from the said T. D. drafts or bills bills to an of exchange for money and to what amount yearly for the purpose agent for the of the said G. G. receiving; the money payable thereby or for what P".''Pose of re- • CGivinp" Trip other purpose ; and whether or not also for the purpose of the said money due G. G.'s paying all or part of the money so received to any other thereon; that person or persons on account of the said T. D. 1 Did it or not appear ■' appeared to you on drawing out the accounts between the said G. G. and T. t^e^person ° D. that it was reasonable that any and what sum of money should employed to be allowed by the said T. D. and on what ground unto the said G. "i^ke out the G. or his representatives or estate as or by way of commission for t^g°n°|fe p^r. receiving the money on or by virtue of such bills or drafts ? Was or ties that an al- were or not any and what sum or sums of money charged in the ac- lowance counts drawn out by you as aforesaid for such commission and whe- ^^°^^^ ^^ >'•'„, . ., made for com- ther or not for postage oi letters f Had you or not ever and when mission and any discourse or conversation with the said T. D. with regard to his postage of let- making any and what allowance to the estate or representative of '^■'^ > the said G. G. for such commission and postage of letters or on ^'?° *° ^^^^d either and which of such accounts ? If yea. What answer did the said ^y the person T. D. make or how did he express or declare himself relating to such charged there- matters or things or either and which of them ? Declare, &c. '^''■'^ "P™ ^ ° conversation with him relative thereto. {Refer to p. Ill, antea.l Hath or have or not any and what sum or sums of money been To prove what 747 INTBEROGATOBIES. rents have paid to Or to the use of the said J. A. in the title to these interroga- ^h^Vf "^d" ^o^'iss named by any tenant or tenants as the rent or rents of any by\ije tenants ^^^ ^^^^ P^'"'' °f ^^^ premises in the 5th interrogatory mentioned? of the pre- If yea, Set forth for what and by whom by name, and what sum mises in ques- or sums hath or have been so paid ? Declare, &c. tinn. * Interrogatories to be exhibited to witnesses, &c. [see p. 685, anted] wherein J. B. is complainant and R. B. is defendant, on the part and behalf of the said complainant. 1st. [As to knowledge of the parties ; vide p. 687, antea.~\ To prove that 2d. Whether or no did you or any person and who in partnership tised^the'^^re- ^^*'^ ^'^^ ^* ^^^^ *^™® ^^"^ ^'^^° ^""^ ^? whose order or authority mises for sale cause the premises in the pleadings in this cause mentioned amongst and sold the others to be advertised for sale by auction, and whether or no did [ *748 J you or any person and who in partnership with you *at any time same by auc- and when and where and by whose order or authority put up the said tion, what premises to sale by public auction, and were the same described as ''"itnesrhlT ^°* ■'■' °^ '^^ '^^^^ °^^®'' ^°* ^^ *^® ^^'*^ auction ? And whether or no with the de- did any and what conversation pass between you and the said defen- fendant the dant previously to the said lot being put up to the price at which the vendor as to game should be sold, and whether or no did the said defendant bid which the fo"" t^® ^^^^ ^°* ^'^'^ ^^^ much and to whom was the said lot knocked same should down and at what price ? And was it so knocked down fairly and be sold; hona fide- or how otherwise? And had the said defendant any time whether the q^, opportunity to make a further bidding; and did the said defend- ed down fairly ^^* when the same was so knocked down publicly or otherwise and and bona fide, how object thereto, or when first did the said defendant object to and whether the Said sale ? Set forth, &c. then made any ^^- Look upon the paper- writing now produced, &c. ; Of whose objection hand-writing is the said paper-writing and every part thereof and in thereto. particular the signatures of "John White and Son" set and subscribed To prove as thereto ; And whether or no had you authority from the said defen- memorandum^ dant to set and subscribe your name to such memorandum or receipt or receipt or to sign any agreement as to the sale of the said premises ? And signed by the is it the usage for persons employed as auctioneers to sign such memo- ^"hTa^th' ri- I'^'^i'^'^™ receipts or agreements on the part of the persons by whom ty he had for they are employed to sell, and whether or no had you then actually signing the received from the said complainant the said sum of 1, or for same, and the -^i^at reason did you give a receipt for the said sum as if you had ac- of auc'tionee^rt tually received it ? Set forth, &c. as to signing 4th. Look upon the paper-writing now produced, &c. ; Of whose receipts on the band-writing is the said agreement, and whether or no was the same vendors and signed by any person and whom in your presence ? And is your name whether wit- Set and subscribed as a witness thereto of your proper hand-writing ? ness had re- Where was the said agreement written and signed, and was the said posit*^ ^^^ ^^' "isfendant then present, and did he make any and what objection To prove as thereto, and whether or no were you present when the sale of the n INTEEROGATOEIES. 748 said lot took place ? And if yea, State wtat passed thereupon, and au exhibit the whether when the said lot was knocked down to the said complainant agreement any and what objection was made thereto by the said defendant ? 'l^^l'^i'^ *^ Set forth, &c. _ _ CX^lt Lastly. \_The concluding generalinterrogatory ; seep. 688, antea.'\ fendant was present when Opinion. — The question in this cause is, whether any memoran- signedTnd'^^ dum of the sale was signed by any person lawfully authorized by the objected defendant, and the only paper that can be stated to have that effect t'^«i'«t°. ^nd is the memorandum and receipt of the 1, mentioned in the bill Tt th?Hme of to have been signed by one of the Whites. sale. The agreement signed by the plaintiff does not bear upon the difficulty of the case. If the evidence comes up to the representa- tion of it, I think the plaintiff will succeed ; but the case is not with- out doubt. *Interrogatories to be exhibited to witnesses, &c. [ *749 ] [see p. 685, antea.] 1st. [As to the knowledge of the parties, see p. 688, antea.] 2d. Whether or no were you employed on as auctioneer at To prove by the sale of a certain copyhold estate which had belonged to the late *" auctioneer S. C. late of, &c. inn-holder ? If yea, In how many lots was the '^^Z Zute estate sold, and who was the purchaser at such sale of lots and was sold ; also , and at what prices ? Look upon the printed paper now pro- *» prove as an duced, &c. marked with the letter (M) ; Whether or no is the same ^^^*^^^^l°^^ one of the copies of the particular and condition of the said sale, and lars of saie^"" were the said lots and purchased subject to such particu- the amount of lar and condition? And if yea. What was the amount of half the ?.'*^^'i'^ ^"'^', auction duty on the said lots and , and what was the ap- thTval'ue'oT praised value of the fixtures which were to be taken by the purchaser fixtures and of lot , and at what sum was the timber on lot valued ? t'™ber. Set forth, &e. 3d. Whether or no were you at any time or times and when after To prove con- present at any conversation or conversations between the said versations be- complainant and the said defendant as to whom the said complainant i^ln^iff and was to consider as the purchaser of lots and part of the defendant as estate of the late S. C, being the premises in the pleadings in this to whom the cause mentioned ? If yea, set forth all and every the particulars of plaintiff was such conversation or conversations, and what was said therein both the purchaser by the said complainant and the said defendant respectively, and of particular when and where and in whose presence and hearing and upon what ^°'^" occasion or occasions all and every such conversation or conversa- tions took place ? Set forth, &c. 4th. Whether or no were you present when the said complainant 'F.° P™^^ ^^' delivered to Mr. K. the possession of the premises in the pleadings Be^s^iorfby"^" in this cause mentioned ? If yea. Set forth the particulars of what plaintiff to a passed upon that occasion and what was said thereupon by the said **''■ ^- and complainant to the said Mr. K. ; Set forth, &c. tellT''^ 749 INTERROGATORIES. To prove ap- 5th. Whether or no were you at any time present when the said plicatioa defendant made any application or request to the said complainant made by de- . . , . ,. , •' '^^,, , ^ i? xi, • • xi. fendant to the ^0 S}'^^ "i"^ *i™^ to V^J t^^ purchase-money oi the premises in the plaintiff for pleadings mentioned ? If yea, Set forth the particulars of such appli- time to pay cation and request, and when the same was made, and whether or no moneyj'^and^^' ^f*^*" ^^^ ^aid Mr. K. was in possession of the said premises ; Set whether the forth, &C. same was after 6th. Whether or no did you ever and when hear the said Mr. K. was^^delivered ™*^® ^^7 ^^^ ^l^^t declaration and to whom as to his having or not to Mr. K. employed the said defendant to purchase for him of the said corn- To prove de- plainant the premises in the pleadings in this cause mentioned ? Set claration by forth, &C. hishavinsr" Lastly. \^The concluding general interrogator^/, see p. 688, antea.] employed the defendant to purchase the premises for him. [ *750 ] *In Chancery. Interrogatories to be administered to witnesses &c. [^seep. 685, anted] wherein J. D. is complainant and I. D. and T. R. C. are defendants, on the part and behalf of the said complainant. 1st. [J.S to knowledge of tlie parties ; see p. 688, antea.] 2d. [To prove as an exhibit the agreement signed ly the defend- ant I. D. with the plaintiff ; see the first interrogatory inserted in p. 712, antea.] To prove as 3d. Look Upon the letter or paper-writing now produced and shown an exhibit a ^^ yg^ ^^ ^j^jg ^.j^g ^.j^g ^f ygyj. examination marked with the letter by one^of the (S)' ^^^ ^he Superscription or direction thereof; Whether or no are defendants. you by any and what means acquainted with the character and man- ner of hand-writing of the said defendant I. D., and whether or no is the body of the said letter or paper-writing and the name I. D. appearing to be set and subscribed thereto and the superscription or direction of the said letter or either and which of them of the proper hand-writing of the said defendant I. D. as you know or believe ? Declare, &c. 4th. \_To prove the particulars of a conversation between the plain- tiff and one of the defendants, and an offer made hy the plaintiff to pay part of the consideration money ; see the Zd interrogatory in- serted in p. 699, antea.] To prove by 5th. Whether or no did you at any time and when treat with or the examina- gnter into any agreement with- the said defendant I. D. for the sale licitors em-°' ^J ^^™ "^ *^^ public-house at E. in the pleadings of this cause ployed in ne- mentioned, to the defendant T. R. C. ? If yea. When and by whom gotiating the -^ere you employed to enter into such treaty and agreement, and tween the de- '^^^^ ^'^'^ from whom respectively did you receive all and every your fendants, by instructions or directions as to such treaty or agreement ? And in whom they particular did you ever and when receive any instructions or direc- e?7hat'the^' tions respecting such agreement from D. W. and W. H. the part- received di- uers of the said defendant T. R. C. or either and which of them ? rections from And whether or no pending such treaty, or after the said agreement INTERROGATORIES. 750 was concluded, and before the purchase-money was paid by the said the partners of defendant T. R. C. pursuant to such agreement, did you know or t^p^q"'^*"^ believe or had you any intimation that the agreement in the plead- t^at pending ings in this cause set forth or any agreement had been entered into tbe treaty or between the said complainant and the said defendant I. D. as to the beforethepur- sale of the said public-house called the by the said I. D. to the ^a?paTd they said complainant; and when and from whom and upon what grounds receivedanin- did you know or believe the same, or when and from whom did you timation that receive such intimation 1 And did you at any time and when before ^'i^j^'r'^n ^1,^^ the said agreement was concluded or before the said purchase-money entered into was paid by the said defendant T. R. C, inform the said defendant an agreement, of such your knowledge or belief, or of such intimation, and if not, f/"^ whether ■L •) a J. c ^1 they informed why.' Set forth, &c. _ _ T. E.G. of it. *6th. Whether or no did you ever and when treat or agree with r *']^\ "i the defendant I. D. for the sale by him of the public-house at j.^ .^ < E. in the pleadings of this cause mentioned, to the defendant T. R. C. the examina- or employ any person or persons and whom in any such treaty or tion of the agreement, or did you ever and when and to whom give any and what f^e'defendant instructions or directions as to such treaty or agreement ? And t. R. C. whe- whether or no did you so treat or agree with the said defendant I. D. ther they en- or so employ such person or persons in such treaty or agreement, or '^^''^f '°'° "'i T ■ , ,■ T .• , 1 , employed oth- give such instructions or directions as to such treaty or agreement er persons and by the previous authority of the said T. R. C, or with his privity or whom to en- approbation ; or did he after you had so treated or agreed, or so terintoa,trea- 111, ■ I. J- ^- ■ i ty with the de- employed such person or persons, or given such directions or instruc- fondant I. D. tions, know and approve of the same, or how otherwise ? And whether for sale of the or no pending the treaty with the said defendant I. D. for the sale premises whe- of the said public-house to the said defendant T. R. C. or after the ti,!'^,lotL„! agreement for such sale was concluded, and before the purchase- authority of T. money was paid by the said T. R. C. pursuant to such agreement, &c. R- C. or whe- [the same as the concluding part of the former interrogatory.'] Set ther he after- ^ a r .^ .^ D c J wards knew or lOrth, oEC. ^ ^ approved of 7th. Whether or no did you on any day and when in particular in it. or about the month of dine in company with the said complain- To prove that ant at the public-house at B. ? And whether or no did the said com- at a dinner the , . ,^ , , , , . plamtitt m- plamant then say to you or to any other person and whom in your formed one of presence or hearing, that he had made any agreement for the purchase the partners of of the public-house called the at B. in which he lived, or T. R- C, that to any such and what effect ? And whether or no was the agreement f^^ ^^^ ^^^l^ between the defendants I. D. and T. R. 0. as to the sale of the said chase of the house then concluded, or had the said T. R. C. then paid his purchase- premises, and money for the said house to the said I. D. as you know or believe? Lreementbe- And whether or no did you mention or give any intimation to the tween the de- said T. R. C. of what the said complainant had then said before the fendants was said agreement was concluded between the said defendants I. D. and *j^° conclud- & , ™ , . n 1 • 1 1 1 • 1 m ^o or the pur- T. R. C, or before the said purchase-money was paid by the said 1. chase-money R. C, and if not why ? Set forth, &c. paid, and 8th. Whether or no did you ever and when and how often and at whetiier wit- what particular times in or about the month of , and whether rp ^ q ^^ alone or in company with any other person and whom, call at the what he had house of the said complainant and ask to look at the agreement which heard. 751 INTERROGATORIES. To prove by he had entered into for the purchase of his house, or to any such and the examma- ^j^^^ effect ? Or have you had any other and what conversation with tionofoneof , ., _. J . •' , iOAiii.i the partners ^he Said Complainant respecting any such- agreement : And whether of T. R. 0. or no did you or any other person and who in your presence at any and that he fre- -vrhich of such times see the said agreement ? And whether or no did at" the plain- 7^^ o"* ^"^J Other person and who in your presence, at any and which of tiff's house to such times desire to take the said agreement away and allege any and look at his what reason for so doing, or actually take the said agreement away and that heTook ^-Uege any and what reason for so doing? And for how long did you the same away Or such Other person keep such agreement, and for what reason? and how long And when did you or such other person return the same to the said he kept it, and complainant ? And whether or no did you or such other person when [ *75», ] the said agreement was so returned *to the said complainant, make what passed any and what declaration as to the value that the said agreement turned th?" would be of to the said complainant if he knew how to use the same, same ; or to any such or any other and what effect ? And whether or no Also to prove when you first called at the house of the said com'plainant as afore- whetherwhen said, and had any conversation with the said complainant respecting any conversa- ^^J ^^'^^ agreement as aforesaid, or when you or such other person tion with the took away such agreement as aforesaid, had the treaty for the pur- plaintiff re- chase of the said public-house called the by the said defendant specting his T_ j^ Q_ jjggjj entered into with the said defendant I. D. ? Or if en- agreement or ,. iii ■• t i ^ •<■ iiiini took the same tered into, had the same been concluded, or it concluded, had the away, the purchase-money for the said house been paid by the said T. R. C. as agreement be- -y^^ know or believe ? Set forth the particulars at large according to fendants had ^^^ '^^st of your knowledge remembrance and belief, and the truth been entered declare. 1°'° "'■ '^°'^" Lastly. l_The concluding general interrogatory ; see p. 688, antea.J purchase- mo- ney paid. Interrogatories to be exhibited, &c. [see p. 688, antea.'] 1st. [As to knowledge of the parties ; vide p. 687, anteaJ] As to witness's 2d. Did you knowN. L. in the pleadings named the said complain- knowledge of ant's late grandfather deceased in his life-time and for how long before . . eceas- j^jg death, and when or about what time did he die ? Declare, &c. As to witness's ^^- Whether or no do you know and have you or not at any and knowledge of how long time known or been acquainted with a messuage or tene- the premises meut and premises situate, &c. now called or known by the name in question. ^^^ ^^^ ^^^ heretofore or formerly called or known by the name of, &c. and late or heretofore the estate of the said N. L. ? Declare, &c. To prove that 4th. Whether or no did the said N. L. ever and when in his life- N. L. sold the time sell or dispose of the messuage Or tenement and premises in the QueTthm to third interrogatory mentioned or inquired after to the said defend- the defend- ants or any and which of them, or to any and what other persons or ants and exe- person and whom by name, and for what sums or sum of money or ^^ Ih^^^'e foi" ^■'^y other and what consideration ; and were or was or not the to them ; and Same or any and what part thereof by any and what deeds or deed that the de- or Otherwise and how conveyed and by whom and particularly INTERROGATORIES. 752 whether or not by the said N. L., to such purchasers or purchaser fendants had or any and which of them? Had or not such persons or person Previously purchasers or purchaser or any and which of them at any and what thatN. L.'s ti- time before or at the time of making such purchase or of the exe- tie was defec- cution of the conveyance of the said premises or of the payment t'i^" ^"^^ ^^^^ of the whole or any and what part of the purchase-money or con- cMmidTitle sideration for the same, and by what means any and what know- to the same ledge notice or information that the title of the said N. L. to the premises. said messuage or tenement and premises or any and what part thereof was defective, or that he had not full power or authority to sell or dispose of the same or of the inheritance thereof, or that *any and what other person and who by name had any right title r *Y53 i claim or interest thereto or therein or to or in any and what part thereof as you know or for any and what reason believe? De- clare, &c. 5th. Whether or no had the purchaser or purchasers of the said to prove that messuage or tenement and premises in the said 3d interrogatory men- thepurchasers tioned or inquired after or any or either and which of them at any °{ the pre- . and what time before or at the time of making such purchase or tjon jjad no- executing the conveyance of the said premises or of the payment tiee of the of the whole or any and what part of the purchase-money for the plaintiff's same and by what means any and what knowledge notice or infor- pre'^ousirto mation that the complainant had any and what right title claim or the time of interest thereto or therein or to or in any and what part thereof ? purchase or Declare, &C. payment of 6th. Whether or no was the price or the sum of money paid by the tlon money, said purchasers or purchaser of the said messuage or tenement and To prove that premises as in the said preceding interrogatory is mentioned and in- tte purchase quired after the full or utmost price or value thereof, or was or not ]"'"^+{a^^4 the same and for what reason less and by how much less than the mi value of full value thereof in case a good title could have been made thereto the premises, to such purchasers or purchaser ? Were or not the same premises '^"^ ^^^^ "^"^ purchased for some and what sum of money less than the real and made thereout fall value thereof on account of some and what defect in the title of on account of the vendors or vendor thereof and whom by name in the title thereto tj^e defective or therein, or was or not some and what deduction or allowance made out of the purchase-money for the same or such or some and what other account ? Declare, &c. 7th. Whether or no did you ever and when on any and what occa- To prove de- sion hear the said defendants or any and which of them say or de- ciarationsby, clare anything and what touching or concerning their or any and tions^with'^the which of their right or title to the aforesaid messuage or tenement defendants re- and premises or any and what part thereof or any defect therein, or Iftive to their touching or concerning the right title interest or claim of any and ^''^^ *° 1? Ill 1 i-o premises, what Other persons or person and whom by name thereto or therein ; Set forth all and every the particulars and when and where and be- fore whom or in whose presence or hearing and upon what occasion the same or any of them were or was made ; Had you or not ever and when any and what conversation with the said defendants or any and which of them touching their or any and which of their right 753 INTEEROGATORIBS. or title to the aforesaid premises or any and what part thereof? Declare, &c. Lastly. \_The concluding generalinterrogatory ; vide antea, p. 688.1 To prove the Whether or no were you at any time or times and when previ- particQiars of ously to the agreement between the said complainant and the said betweeu^tiie°° defendant respecting the purchase by the said defendant of the house plaintiff and and premises of the said complainant at present at any con- defendant re- versation or conversations which passed between the said complain- Me of1,he^ ant and the said defendant upon the treaty for the said purchase ? plaintiff to a If yea, Set forth the particulars of such conversations and what was r *754 *said therein by the said complainant to the said defendant respect- house and*? ^^S ^is ti*-!® to t^® said premises ; and whether anything and what ground previ- was Said by the said complainant to the said defendant as to the title ous to the to the newly-enclosed ground in front of the said premises ; Set forth tered^^to for' ^^^ ^°*^ every the matters and things aforesaid according to the best purchase. of your knowledge remembrance information and belief. To prove a Whether or no at any time and when after the agreement between by°the^defen-^ ^^® ^^^^ Complainant and the said defendant respecting the said pur- dant to be re- chase, did the said defendant desire you to communicate to the said leased from complainant any proposal on his part as to his being released from for purchase ^^® ^^^^ agreement ? If yea, Set forth the particulars of such pro- posal, and when and upon what occasion the said defendant made the same ; Set forth, &c. To prove that Whether or no had you at any time and when previously io the the^a'°reement ™^ti'^g 0^ ^^^ agreement of the day of in the pleadings in for purchase this cause stated, and upon what occasion any and what communica- witness com- tion with the said complainant as to the title of the said defendant withthe^lain *° *^® premises comprised in the said agreement ? And did the said tiff as to the Complainant at anytime and when and upon what occasion previ- defendant's ously to the making of the aforesaid agreement, state to the said title and that defendant or to you or to any other person and whom as the solicitor stated that ^^ agent of the said defendant that there existed any and what ob- there existed jections to the title of the said defendant to the said premises, and objections to ]^ particular any and what objections by reason that one R. B. had reason tha^ not joined in the conveyance of the said premises to the said defend- certain per- ant, or any and what objections by reason that one A. S. claimed to sons claimed have some right or interest, in the said premises, and for what pur- the^premi^s'es'^ P°^® ^^^ *^® ^^^^ complainant State the said objections to the title of also to prove *^® ^^^^ defendant to the premises, and had the said objections any what was the and what effect as to the price which the said defendant agreed to plaintiff's ob- accept from the said complainant for the said premises ? Declare, &c. ject in making such objec- tions. To prove that Did or not J. A. the defendant in the title to these interrogatories INTBRROOATORIES. 754 named, at any and what time sell to any and what person or persons the defendant by name any and what part of the premises in the last interrogatory l^^s sold part mentioned ? If yea, Set forth for what price, and what sum or sums °^ qul'g't^on'^^ of money the said defendant received as the consideration thereof; and at what Declare, &c. pi'ice. * Did you at any time and when act as an auctioneer and put up To prove that to sale by auction the estate in the pleadings in this cause mentioned, 'w'tness as and was or not the said estate sold in lots, and did you or not at the sold an estate time of such sale and before the putting up of any of the lots pro- and the plan duce some and what plan or particular of the said estate, and did produced at you at or before the said sale make any and what declaration con- gaL*^'™^ ° corning the lots so to be put up to sale or concerning the plan or particular of the said estate ? Declare, &c. *'^ Were you at any time and when and by whom and on whose behalf [ *755 ] employed to sell by public auction or otherwise a certain freehold To prove that estate situate, &c. in the pleadings of this cause mentioned? If yea, witness was Did you prepare or cause to be prepared any plan or particular of auctioneer^to the said estate, or was any plan or particular of the said estate pre- sell an estate pared ? If yea. Where was such plan or particular left, and was the ^^'^ "^'^* ^^ same open for the inspection of persons who might be desirous of pian^hereof buying the said estate or any part thereof? And was the sale of the referred to in said estate advertised, and was any and what plan or particular re- ^^^ advertise- ferred to in such advertisements, and were or not the respective lots ^^"J'?; ^° 11 1 •IT- 11 -lOT-viD that the same marked or described in such plan or particular i Declare, «c. was left open to the inspec- tion of persons desirous to purchase. * Did you know J. 0. late of deceased, in his life-time, and for tq pro^e that any and what length of time previously to his decease ? Was he or a deceased not at any time in the service or employ of the said Bristol Dock P^''^?"-^^^ '° Company ? If yea. In what station or capacity and for what length a^t's service of time was he so employed by the said Bristol Dock Company ? De- and in what clare, &C. capacity. Whether or no have you now and have you for any and what time To prove what had any and what situations or office, situations or offices in or about ^ggg jj^i^g j^ his Majesty's Treasury, or connected with the business thereof, and his Majesty's whether or no have you by means of such office or situation, or by Treasury and any other and what means had any opportunity to become acquainted, ^^ ^^^ duties and are you in any and .what degree acquainted with the duties em- and profits of ployment and profits of the Treasury messengers ? Declare, &c. *e treasury ' "^ ./ o messengers. Whether or no were you intimately or otherwise and how acquaint- To prove what ed with F. G. and A. B. who were lately two of the said Treasury ^"ji'g^^*^"^^!^ messengers but are now deceased, and for how long did you severally before he was know them, and what was the situation of the said A. B. before he appointed a was appointed a Treasury messenger, and was he before such ap- treasury mes- , i>iiiii, c senger, and pointment a person oi property or reputed to be a person oi proper- whether he ty or how otherwise ? Declare, &c. was reputed to be a man of property. 755 INTBREOGATOEIES. To prove that Whether Or no had you any and what relation or connection who relation w^h^o'' ^^® ^ Treasury messenger at the same time with the said F. G. ? ■was e°mp7oyed -A-nd If yea, Did the said F. G. receive the moneys which were due as a treasury to such your relation or connection in his employ of messenger, in messenger, ^}jg game manner as he received the moneys due to the said A. B., messenger "e- ^^^ ^^^ ^^^ Said F. G. from time to time pay over to such your re- ceiTedthemo- lation or connection the moneys which he received from him, or what neys due to -(vas the State of the accounts between them at the death of the said wa's'thtutF-G-? Declare, &c. of accounts between them at the decease of such person. To prove the * Whether or no did you know or were you acquainted with S. D. son*and TvhTn °^ ' deceased (in the pleadings of this cause named) in his life r'*756 1 *^™e? If yea. When and where did he die? And for how long time \ -' did you know him or were you acquainted with him before the time long witness ^^ ^^^ death ? And when and where did you first know or become ac- was acquaint- quainted with him, and for how long time or to what time did you ed with him, continue acquainted with him ? Did you or did you not live or reside TnwlTll''^ with the said S. D. in his life-time ? If yea, When and where and pacity witness for how long time and in what rank station or capacity did you live, lived with or reside with or serve the said S. D. in his lifetime ? And in what im, and circumstances and situation in life at the time when you first knew the circum- , -I'li •if>(-r\ t n • stances and or became acquainted with the said S. D., and trom time to time situation in during the time that you knew or were acquainted with him, was ^'*^^ °^ d^^ ^^' *^e ^^^^ ^' ^'' ^^^ ^^ what circumstances and situation in life at the respective ^he time when you first lived or resided with or served the said S. D. periods that and from time to time during the time you lived or resided with or witness was served him was the said S. D. ? Declare according to the best of withliim^ and Jour knowledge remembrance and belief, together with the grounds lived in his or reasons on which Your belief is founded. To prove with- Whether or no do you know and for how long have you known in what parish two pieces of land called the forty acres, which are now in the occu- Tnd llTlu- P^'^io" of. ^- ^- of the said parish of W. farmer ? If yea, Within ate or reputed what parish are the said pieces of land situate as you know or for to be situate, any and what reason or reasons believe, and whether or no have you and to what g^g^ ^^^ when heard from any person or persons and whom who are parish tue -,-,.,. ^ .,'', ^., ^ , r»ii • o poor's rates or i"^^ dead Within what parish the said two pieces of land are situate : tithes have And whether or no do you know to what parish the poor's rates or been paid. tithes have been paid for the said two pieces of land, and when and by whom and to whom ? Declare, &c. To prove a Whether or no did you ever and when and by whose employment of'^au'^estat^e^ make a survey and admeasurement of certain lands called the S. situ- INTEKROGATORIBS. 756 ate in the parish of C. in the county of ? If yea, Of what num- and of what ber of acres do the said lands consist ? Declare, &c. number of acres it con- sists. Whether or no did the said defendants or either and which of them, or any and what person or persons on their or either and which of their to prove a behalf, at any times or time and when, or about what times or time tender of mo- particularly, and whether before or after the day of , tender ^'^y°^ of se- or offer to pay or satisfy unto any and what persons or person any and payment or what sums or sum of money in or towards discharging any and what discharge of legacies or legacy given by the will of ? Were or was or not legacies, and any and what securities or security, and from and to whom, for pay- ^^^^ '^^^ ^^_ ment of any and what sums or sum of money, produced and by whom cepted or re- at all or any and which of such times ? Did the persons to whom such, fused, and if any, tender was offered or made at any or either and which of such ^!'^'. P^H^^ •' ' p J, 1 •' , . „ . relative there- times agree or refuse to ^accept the money or other satisfaction so to. offered, and how and in what manner did he she or they at such time or r *'j^'j ] times express or declare him or herself or themselves relating thereto ? Declare, &c. * Did or not the said F. E. in the pleadings in this cause named in To prove a de- his life-time and from and up to what time in particular carry on ^^^^.^^ person Ti 1 IT T-1 p ii-n having been a any and what trade or dealing and in what sort oi merchandize : trader within Declare, &C. the meaning of ^___^_ - the bankrupt laws. Of what trade or profession are you ? Do you know the copyhold To prove the premises in the pleadings in this cause and in the 5th interrogatory annual value mentioned, and how long have you known the same ? Of what an- the^HmTthe^ nual value were the same when J. A. the defendant in the title to defendant these interrogatories named first took possession of the same as you took posses- know or for any and what reason believe ? Of what annual value are ^f^™^ present" the same now, and particularly what is the annual value of such part value. thereof as remains in the possession of the said J. A. ? Declare, &c. * Are you or not acquainted with the parish of W. and the rectory To prove the of W. described in the particular of the estate in the pleadings of ^^'"^ °^ *° , . • 1 o Tr- T\ i 1 J t, J advowson. this cause mentioned : if yea. Do you or not know and by any and what means what was the value of the advowson of the said rectory on the 4th of October 1821, and how do you calculate and make out such value ? Declare, &c. Whether or no were you at any time and when employed by To prove the to estimate the value of the estate and premises described in the estimated va- printed particular of sale marked (A) now produced, &c. ? If yea, ^11^° at°whtt Did you form your estimate of the value from any actual survey quantity wit- and admeasurement or from any and what other information respect- nesscomputed ing the quantity of lands to be sold, and in particular in forming ^ndTn what^' such valuation at what quantity did you compute certain lands part degree it of the said estate called the ? And whether or no should you would have 757 INTERROGATORIES. reduced the in any and what manner have reduced the estimate of the value of estimate if g^gjj ggtate and premises if you had known the said lands called the had known Contained a less number of acres than they were so computed that certain at by you ? lands contain- ed less than they were computed at. To prove the * Did you previously to the time of the sale of the estate in valuation of the pleadings of this cause mentioned make any and what estimate ary mteTesUn °^ ^^® ^^^"^ "^ t^^ reversion of the said houses or lots after the houses after expiration of the leases under which the said houses were held ? And the expiration if yea, How did you make such estimation or valuation, and was or il.!oi^!!r£; iiot in particular the valuation of lot 10 or the houses comprised in ously to the Such lot higher than the valuation ctt some other lot containing tne sale thereof, same number of houses and let at the same rents, and what was [ *758 ] *the reason of such difference in the valuation of such reversion ? De- thatthevalua- clare, &C. tion of one lot exceeded another lot containing the same number of houses and let at the like yearly rents, and the reason of such difference. a will. To prove the * Do you know whether the said T. M. in the 1st interrogatory cancelling of named ever and when and in whose presence cancelled any will or testament made by him and of what date in particular ? And if yea, Were you present at the time, and did the said T. M. inform you or make any declaration why he cancelled such will or testament ? And set forth the particular words or declarations used or made by the said T. M. as the reasons for his cancelling such will or testament as nearly and fully as you can recollect the same ? Declare, &c. [To prove the execution of wills, see p. 727, antea.] SECT. in. FORMS OF INTERROGATORIES FOR THE EXAMINATION OF PARTIES, AND ALSO FOR THE EXAMINATION OF CREDITORS AND THEIR WIT- NESSES, AND OTHERS, UNDER DECREES AND DECRETAL ORDERS. Interrogatories for the examination of the personal re- presentatives of an administrator as to his intestate's estate and effects exclusive of his share in a partner- ship business, and also to the debts which were owing by the intestate. Between, &c. Interrogatories to be examined, &c. \_For a form of title, vide antea, p. 685.] 1st. Whether or no was R. P. the intestate in the pleadings in INTERROGATORIES. 758 this cause named at the time of his death possessed of or entitled to any personal estate and effects other than and besides and exclu- sive of his part share or interest in the copartnership trade and business in the pleadings in this cause mentioned, and the stock and effects belonging thereto ? If yea, Set forth a full true and parti- cular inventory and account thereof and all the particulars whereof *the same consisted, and the full true and utmost value thereof, and [ *759 ] all the particulars thereof which were possessed by you or any and which of you and by any other person or persons by your or any and which of your order and for your or any and which of your use, or by the said late defendant T. P. or any other person or persons by his order or for his use in his life-time, and how and in what manner the same were and have been applied or disposed of, and also an account of all and every sums and sum of money received by sale or on account of the said intestate's personal estate and effects other than and independent of or distinct from his share interest or concern in the co-partnership trade or business in the pleadings in this cause mentioned or the stock or effects belonging thereto, or otherwise on account of the said separate personal estate and effects of the said intestate, and when by whom and of whom for what and on what account or accounts the same and every part thereof were or was so received, and whether any and what part or particulars of the said separate personal estate and effects of the said intestate remains or remain outstanding or unreceived. 2d. Whether or no was the said intestate R. P. at the time of his death separately indebted to any persons or person besides or exclu- sively of the debts owing from him as a partner in the aforesaid co- partnership concern or business ? If yea. Set forth a full true and particular account of all and every such debts ; Have you or not or have or hath or not any and which of you or any persons or person by your or any and which of your order or on your or on any and which of your behalf paid laid out or expended, and did the said late defendant T. P. or any other person or persons by his order or on his behalf in his life-time pay lay out or expend any and what sums or sum of money in or towards the discharging of all or any and which of such debts or of the funeral expenses of the said intestate R. P. ? If yea. Set forth a full just true and particular account of all and every such sums or sum of money, and when and by whom and to whom and for what or on what account or accounts the same and every part thereof were or was so paid laid out or expended. An interrogatory for the examination of an agent or steward. Whether or no were you in the life-time of the said testator T. D. To prove whe- and for how long time before his death empowered by him or any ^ertheexam- 1 11 i 1 i J 11 11 J I. X i. -V inant was em- other person and whom to let a,nd sell all or any and what part oi powered by the freehold and leasehold estates of the said testator and to receive the testator to the rents and profits thereof, or do you otherwise and how know of J.^' ^°*^^^" ¥^ what freehold or leasehold estates the said testator died seised or pos- leasehold es- 759 INTERROGATORIES. tates and to receive the rents thereof; Also to prove the particulars of such es- [ *760 ] tates, how long the ex- aminant has been in pos- session of any part, what rents have been received by him and what remain in arrear, and also as to what moneys have been expend- ed on the es- tates. sessed or entitled unto ? If yea, Set forth a full true and just rental description and particular thereof, and where the same and every part thereof are situate, and the yearly value of each particular thereof, and in whose tenure or occupation the same and every part thereof then was or since has been and now is, and under what leases or terms of years, if any, and at what yearly or *other rent or rents ; And set forth for how long time you have been in possession or receipt of the rents and profits of such freehold and leasehold estates or any and what part thereof, and by what right and title and for whose use ; And also set forth a full true and particular account of all and every sum and sums of money which have been received by you or any other person or persons by your order or for your use for or in respect of the rents and profits of the said estates or any part thereof which have or hath become due since the death of the said testator, and what and by whom and for whose use and for what rent and of what part of the said estates and when due all and every such sums were respectively received, and whether any and which of such rents and profits are now in arrear, and if so, why ; And also set forth a full true and particular account of all and every the sum and sums of money which have been from time to time paid and disbursed by you since the death of the said testator for or on account of the said freehold and leasehold estates of the said testator, and when and to whom and for what all and every such sums were respectively paid and disbursed ; Set forth, &c. Interrogatories for the examination of a de- fendant before the Master, to prove the number and age of her children and when baptized. Between B. B. and others, . . Plaintiifs, and T. A. and others, . . Defendants. Interrogatories exhibited on behalf of the plaintiffs before J. S. H. esq. &c. 1st. Whether or no were there any children living of the marriage between you and your late husband W. A. in the pleadings in this cause named at the time of his death, and what were their respective names, and when and where were they severally born, and are or is any or either and which of them since dead, and when did he she or they die ? 2d. Whether or know were they or any or either and which of them at any time or times and when and where and by whom bap- tized, and whether or no were or was any entries or entry at any time or times and when made in any registers or register of any and what parish church or churches or chapels or chapel or other places or place as to the birth and baptism of all or any or either and which of them ? INTERROGATORIES. *761 * Interrogatories for the examination of ereditors and their witnesses. Between A. B. and C. D. complainants, and B. F. and G. H. defendants. Interrogatories exhibited by the complain- ants before W. G. esq. one of the Masters of this honorable court, for the examination of the creditors of T. H. esq. deceased in the pleadings in this cause named and of their witnesses, in pursuance of the decree and order of this court made on the hearing of this cause on the 8th day of March 1781. * 1st. Was the said T. H. in his life-time and at the time of his To prove the death indebted to you in any and what sum or sums of money on any ^^^^^ ^^^. *° and what account, and have you or have you not at any time or times nants at the and when and from whom received any and what satisfaction for the time of the in- same or any part thereof, and is the same and every or any and what testate's part thereof still justly due and owing to you ? Declare, &c. whether'any * 2d. Was the said T. H. in his life-time and at the time of his part thereof death indebted to you in any and what sum of money for principal ^_^^ l^^^" sa- and interest due to you on naortgage or other security or securities *'^ made from him to you, and when does or do such mortgage deed or moneyl'^are * other security or securities bear date, and for what consideration was due on mort- or were the same made and by and before whom and when executed, gages or other and who is or are the subscribing witness or witnesses to the execu- f^^""*'f^^ ,f' ^ 1 1 ''°^ particu- tion thereof, and have you or have you not or any other person and lars thereof. whom on your account or behalf and when received such principal money and interest or any and what part thereof, as you know have heard and believe ? Declare, &c. * 3d. Was the said T. H. in his life-time and at the time of his To prove what death indebted to you in any and what sum or sums of money on moneys are any and what judgment, and when was the same confessed or recov- nient'"and ^' ered by you or whom else in any and what court against the said T. when such H., and have you or have you not or any other person and who on judgment was your account or behalf or on any other account and when and from whom received any and what satisfaction for the same or any and what part thereof, and is the same and every or any and what part thereof still justly due and owing as you know and do believe ? De- clare, &c. * 4th. Was the said T. H. in his life-time and at the time of his To prove what death indebted to you in any and what sum or sums of money on any "„e°^nVoQd and what bond or other security made and entered into by him to you or any other person or persons and whom by name, and when was the same so made and given and for what consideration or on what ^account and in what penalty, and what was the consideration thereof, [ *762 ] and when does the same bear date, and hath or liath not the same 63 762 INTERROQATORIES. been and when paid off and discharged, or is any and what part thereof still justly due and owing to you or whom else on the said bond as you know have heard and do believe ? Declare, &c. To prove what * 5th. Was the said T. H. in his life- time and at the time of his moneys are death indebted to you in any and what sum or sums of money on any missory^notes. ^^^ ^^^^ promissory or other note, and when and for what con- sideration was the same so made or given or indorsed to you or whom else by the said T. H. and what is the date thereof, and hath or not the same and every or any and what part thereof been and when paid off and discharged, or is the same or any and what part thereof still justly due and owing to you or whom else as you know have heard and believe ? Declare, &c. To prove what * 6th. Was the said T. H. in his life-time and at the time of his is due for death indebted to you in any and what sum or sums of money on and delivered. ^"^J *'^<^ what book debt or debts for any and .what goods sold and delivered by you to him or by his order or for his use or on his ac- count, and at what particular time or times were the same so sold and delivered by you to him or by his order or for his use, and what was or were the particular or particulars thereof, and hath or have or not the same or some and what part or parts thereof been and when paid off and discharged, and is or are the same and every or any and what part or parts thereof still remaining justly due and owing thereon ? Declare, &c. To prove what * 7th. Was the said testator T. H. in his life-time and at the time isdueforwork ^j yg ^gath justly and truly indebted to you in any and what sum or sums of money for work and labor done and performed by you and your journeymen and servants or any of them and for materials and things found and provided by you and used in and about such work for the said T. H. or by his order, and when where and at what place or places ? And have you or have you not or any other person or persons and who on your account or behalf or on any other and what account and when and from whom received any and what satis- faction for the same or any and what part thereof, and is the same and every or any and what part thereof still justly due and owing to you or whom else as you know and do believe ? Declare, &c. To prove what * 8th. Was the said T. H. in his life-time and at the time of his 13 due to the ^ga,|;]i justly and truly indebted to you in any and what sum or sums ueceaseu 3 so- „ n i • -x i ip p t n licitor. 01 money tor business done by you, and tor your iees and tor money necessarily paid laid out disbursed and expended by you and when for him or on his account or behalf in any and what business, and have you or have you not or any other person or persons and who on your account and behalf or on any other and what account and from whom and when received any and what satisfaction for the same or any and what part thereof, and is the same or any and what part thereof still justly due and owing to you or whom else as you know or do believe ? Declare, &c. To prove the * 9th. Was or were the bond or bonds or other writing or writings execution of marked now produced and shown to you at this the time of your other exhibits examination or any and which of them signed sealed or executed in by the sub- your presence and by whom ? Were you or not a witness to the signing [ *763 ] ^sealing or executing such bond or bonds or other writing or writings INTERROGATORIES. 763 or any and which of them ? Is your name set or subscribed as a scribing wit- witness to the same respectively, or any and which of them, of your "esses. own proper hand-writing, and is or are the name or names of the other subscribing witness or witnesses thereto of his their or any and which of their own proper hand-writing or not ? Declare all that you know or believe concerning the same. Interrogatories for the examination of a person claiming to be a creditor, to prove the actual consideration of a bond, and under what circumstances the same was executed; also as to loans of moneys in the examinant's charge stated to have been lent, and as to an agreement made with him for the passage of a woman and two children on board a vessel. Between B. M. widow, and others. Plaintiffs, and B. N. and others, . . Defendants. Interrogatories exhibited on behalf of the said defendants before J. S. esq. one of the Masters of this honorable court to whom this cause stands referred, for the examination of T. S. esq. who claims to be a creditor of the testator G. S. in the pleadings of this cause named, pursuant to the decree made in this cause bearing date the day of . 1st. When and where and in whose presence did the said testator To prove un- G. S. execute the bond to you for the sum of 1, in your charge 'ler what cir- mentioned, and at what time of the day was such bond executed ^'^^^ wIT^ex- and was it not after dinner, and was the said G. S. then intoxicated ecuted, and or in any and what degree heated with liquor, and was not the said *e considera- G. S. addicted to drinking, and by whom was such bond prepared, *'°" ^^■'''of ; and when in particular, and by whose directions, and what was the obiiKor^was^ consideration of such bond ; and if you allege that the consideration not intoxicat- was for moneys advanced or paid by you to or for the use or on the ^^ ^t the time account of the said G. S., then set forth when and where and in J",^ executed what manner and in whose presence and to whom such moneys and whether he every part thereof were so advanced and paid ?, Did not the said had any occa- G. S. pay to you the sum of 1, for his passage from to ^'°° ^°I^ *^j , 1 / "^ „ ,. . T, J T.- 1 sum alleged to before or upon or soon alter his coming on board your ship, and ^ave be been did not the said G. S. bring on board with him the further sum of lent, for the 1, or thereabouts, or some other and what further sum as you securing know or believe, and how happened it therefore that the said G. S. bond was exe- had occasion for the said sum of 1., and how did he spend the cuted. same, and what did he do therewith ? 2d. When and where and in whose presence did you pay to Mr. To prove the S. in your charge named, the sum of 1, therein mentioned, and time of pay- when and where and in whose presence did the said G. S. request j^ tii^ exami- *764 INTERROGATORIES. nant's charge *you to pay the Same, and ■when and how did the said Gr. S. become duetohimand ^°<^®^*® ^^^ *? possession or power of the said bond ? Or if the said bond hath never Hve°red it^ and been in your custody possession or power, and upon what occasion or what has be- occasions did you see the same in the custody possession or power of '^""^ °^ '^^ any other person or persons; and what is now become thereof as you ^^'^'^' know or for any and what reason believe? 3d. Are you acquainted with the character of the hand-writing of To prove the the said Marquess of D., and have you ever seen the said Marquess hand-writing write, or by what other means did you become acquainted with the \^^^ tVthe"^" character of his hand-writing, and whether or no do you believe that bond, and of the name "B " set and subscribed in the said bond or obligation the attesting was of the proper hand-writing of the said Marquess, or if not why, aiso'^the'hTnli- aud whether or no was the name of any attesting witness and whom writing of the set and subscribed to the said bond, and are you by any and what body of the means acquainted with the character of the hand- writing of such at- ^°'^^- testing witness, and was such name of his proper hand-writing, and is such attesting witness now living or dead, and when did he die ? And do you know of whose hand-writing was the body and condition of the said bond ? 4th. Whether or no was any instrument or other authority produced To prove whe- to you whereby the said Mrs. T. the obligee in the said bond autho- l^f:*^l °''^'" • J 1 1 1 11 -1 see m the rized. and empowered any other person and whom to receive the money bond gave au- due on the said bond, or otherwise to discharge the same ? If yea, thority to any Set forth the particulars of such instrument or other" authority, and pepo" t" re- , , , , , ^ , „ •' ' ceive the mo- what hath become tnereoi. neyduethere- 5th. Whether or no have you at any time or times and when and on. upon what occasion or occasions had any conversation with the said To prove ac- Marquess of D. upon the subject of the said bond, or have you at knowiedg- Hisnis or 3iCi— any time or times and when and upon what occasion or occasions missions made heard the said Marquess of D. speak of the said bond ; and whether by the obligor or no did the said Marquess of D. upon such occasion or occasions J!''^''.^^ f^^^ acknowledge or admit that he gave the said bond for the proper use tjjg obligee's and benefit of the said Mrs. T. or how otherwise ? own benefit. 6th. Look upon the letters or paper-writings now produced, &c. ; To prove let- Of whose hand-writing are the said letters or the signatures and *^^^ ^^ ^^'^'" superscriptions thereto respectively as you for any and what reason know or believe ? •=766 INTERROGATORIES FOR THE * Interrogatories for- the examination of executors lefore the Master. Between A. B Plaintiff, and C. D., &c. . . Defendants. Interrogatories exhibited on behalf of the said plaintiff before I. B. esq. one of the Masters of this honorable court, for the examination of the defendants pursuant to the decree made in this cause bearing date the day of . "Whether or no was D. W. deceased in the pleadings of this cause named at the time of his death possessed of or entitled to or in- terested in any and what goods chattels personal estate and effects as you know or for any and what reason believe ? If yea, Set forth a full true and just inventory and account thereof and of every part thereof and of all the particulars whereof the same consisted, and the quantities qualities full real and true valuations of all such par- ticulars ; And whether or no were all or any and which of such par- ticulars and to what amount and value possessed or received by or come to the hands of you or one and which of you or any and what persons or person by the order or for the use of you or one and which of you, and how and in what manner and when and where and by whom and for how much have or hath the same and every or any and what part thereof been sold or disposed of, and whether any and what parts thereof and to what value and amount now remain undis- posed of, and what is become thereof? Whether or no were any and what sums of money due or owing to the said D. W. at the time of his death ? If yea. Set forth a full true and particular account of all and every such sums, and from whom and for what the same were respectively due, and whether on any and what securities or security and whether carrying interest or not and at what rate, and how much was due for interest thereon respectively at the time of his death ; and also a full true and just account of all and every sums and sum , of money from time to time received by or by the order of or for the use of you or either of you in or towards the discharge of such debts or any of them or the interest thereof or of any of them since the death of the said D. W., and when and by whom and for whose use and for what all and every such sums were respectively received ; and what sums or sum of money still remain due in respect thereof or of the interest thereof or of any of them and from whom, and why such sums have not been gotten in and received, and where do the persons from whom the same are respectively due live and reside ? Set forth all the matters aforesaid according to the best of your respective knowledge remembrance information and belief. As to the Whether or no was the said D, W. at the time of his death in- debts owing debted to any and what persons or person in any and what sums As to the par- ticulars of tlie personal es- tate and the application thereof by the examinants, and also as to the debts due to the testator at the time of his death, and what moneys have been re- ceived in dis- charge there- of. iiAAMiJNATlOJN UF l-AitTiJiS AND OTHERS. *767 *or sum of money ? If yea, Set forth a particular account of all and by the testa- every the debts whatsoever which were then justly due and owing *<"■■ ^""^ ^'^** from him, and to whom and for what and on what security (if any) "een%'aid to- the same were respectively due ; and whether any and what sums or wards the dis- sum of money have or hath been since paid by you in or towards the charge there- discharge of all or any and which of such debts and when and to ft^^era^iexp'^en- whom and for what ; and whether any and what sums or sum of sea. money do or doth now remain unpaid on account thereof; Whether or no were or was any and what sums or sum of money paid and disbursed by you for or on account of the funeral expenses and debts of the said testator or otherwise in relation to his estate, and when and by whom and to whom and for what were all and every such sums respectively paid? Set forth, &c. Whether or no was the said testator at the time of his death pos- As to the tes- sessed of or entitled to any leasehold property ? If yea. Set forth the ho'w Vo^'it particulars of which the same consisted and where the same and what rents ' every part thereof was situate, and by whom and for what term or have been re- terms of years and under what yearly or other rent or rents the same ^^'^^^ there- and every part thereof was held at the death of the testator, and ^jjat parts whether any and what sums or sum of money have been received by have been you or either of you in respect of such rent or rents and when and ^"'"^i' from whom and for what rents respectively ; And whether or no have you or either and which of you sold any and what part of the said testator's leasehold property ? And if yea. When and to whom and for what was the same sold, and what sum or sums of money hath or have been received by you and either and which of you in respect of such sale, and when and from whom and for what was or were such sum or sums received, and what now remains due in re- spect of such sale, and why the same is outstanding and unpaid ? And set forth also a full true and particular account of the stock in also as to the trade which the said testator was possessed of or entitled to at his testator's death, of what the same and every part thereof consisted, and what t^e'^yaiJie'^'^ ^' at the said testator's death was the full and true value of each and thereof', and every part thereof; And set forth also a full true and particular ac- what moneys count of the moneys produced by the sale of such stock in trade, and iiaje^een re- when and to whom and for what the same and every part thereof thereof, was sold or what became thereof; Set forth all and every, &c. Whether or no was the said testator J. B. at the time of his death As to the free- seised of or otherwise and how entitled to any and what freehold '^°''^,^°jj and copyhold estates? If yea, Set forth a full true and just rental l°fjg to which description and particular thereof, and the number of acres thereof the testator respectively, and where the same and every part thereof is situate, ""f^ entitled, and the yearly value of each particular thereof, and in whose tenure '^^^^ ^^^^ or occupation the same and every part thereof respectively then was sold, and how or since has been and now is, and under what leases or terms if any, tbe purchase and at what yearly or other renter rents ; And set forth also whether be°er'^appUed ■ any and which of such estates or any and what part thereof have or also as to what "768 INTERROGATORIES FOR THE rents have *hath since the death of the said testator J. B. been sold and disposed and^whaTr^ °^' ^^^ ^^^®" ^^^ where and by and to whom and for how much mam in ar- every particular thereof hath been sold and disposed of, and whether rear. at the full and utmost value thereof, and if not, why, and how and in what manner the money arising from the same hath been paid and applied; And set forth also a full true and particular account of all and every sum and sums of money which have been from time to time received by you or any or either and which of you or by any other person or persons by your or any or either and which of your order or for your or any or either and which of your use for or in re- spect of the rents and profits of the said freehold and copyhold estates and every or any part thereof which were due and owing at the death of the said testator or which have since become due, and when and by whom and from whom and for what all and every such sum and sums were respectively received, and whether any and which of such rents and profits are now in arrear, and if so, why ? As to what Whether or no have you been paid or in any manner satisfied any money has part of the principal money of 1, mentioned in the bond or ob- foT'^rincral'^ ligation of T. B. the said testator bearing date, &c. or any part of and interest the interest which- hath accrued due thereon ? If yea, Set forth the due on bond, particulars and amount of all and every sums or sum which you have been so paid or satisfied and when respectively and by whom and in what manner. Interrogatory for the examination of executors and trustees as to any personal estate got in or disposed of by them, and moneys received by sale of real estate and from the rents thereof since the time of the exaniinants putting in their answers to the plaintiff's bill. Hath not some and what part of the personal estate and effects of R. H. esq. deceased, the testator in the pleadings in this cause named, or of the produce of such personal estate, or of the money arisen by sale of his real estate or any part thereof, or in respect of the rents and profits of his real estate or of any part thereof, been possessed by or come to the hands of you or one and which of you, since the respective times of your respectively swearing to your re- spective answers in the plaintiff's bill in this cause? Set forth a full true and just account of all and singular such personal estate and the produce thereof which hath been so possessed or received by you respectively or by your respective order or for your respective use, or come to your respective hands since the time of swearing your said respective answers, and the natures kinds qualities and quantities and the full real and true value of all and every such particulars, and when and by whom and to whom all and every or any and which of such particulars have been sold or disposed of, and whether any and what part thereof remains undisposed of, and what is become [ *769 ] ^thereof? Hath any and what part of the personal estate of the said EXAMINATION OF PARTIES AND OTHERS. 769 testator R. H. -whicli remained undisposed of at the time of swearing your said respective answers being since sold or disposed of and when and by and to whom and for how much, and whether for the full value thereof, or how much under the full value thereof respectively, and what sums or sum of money have or hath been received for the same, and when and by whom and for whose use ? Set forth also a full true and just account of all and every the sums or sum of money which have or hath been from time to time received by you or either of you, or by any persons or person by the order or for the use of you or either of you since the swearing of your said respective an- swers for or in respect of the produce or money arisen by sale of the real estate of the said testator or any part thereof, or the rents or , profits of such real estate or any part thereof, and when and by whom for what and on what account all and every such sums were respectively received ? Set forth all and every the matters .and things aforesaid according to the best of your respective knowledge remembrance and belief. Interrogatories for the examination before a Master of the executor and heir at law of a deceased defend- ant, who was the agent, steward, receiver, and manager of the estates in question. Between, &c. Interrogatories exhibited, &c. 1st. Set forth according to the best of your knowledge and belief ^^ to tl^e a full true and particular account of all and every the rents- issues ed"o/whkh and profits and sums and sum of money arisen from rents issues and wi'thoat wilful profits of the estates of the plaintiffs Viscountess S. and C. C. in the default might pleadings mentioned, situate in the several counties of, &c. or any of bave beenre- them, which have arisen or become due since the death of J. B. their mother, received by or come to the hands of the late defendant R. B. in his life-time, and you the now defendant R. B. as his heir at law and executor since his death, or any other person or persons by your or either of your orders, or for your or either of your use, or which without your or either or one of your wilful default might have been received thereout, with the times when and from whom and for what the same and each and every of them were respectively received or might have been received. 2d. Set forth in manner aforesaid a full true and particular account As to monejs of all and every sums and sum of money paid laid out expended dis- ^^'."^ °",'' ^"^ '^^' bursed or allowed for repairs taxes and other outgoings in respect of ' the said estates or otherwise, to for or on account of the plaintiffs or any of them by the late defendant R. B. in his life-time, and you the now defendant R. B. since his death, or by any other person or per- sons by your or either of your order or on your or either of your ac- count, with the times when and by and to whom and for what the *770 INTBKROGATORIES FOB THE *same and each and every of them were so paid laid out expended disbursed or allowed. As to what 3d. Set forth in manner aforesaid a full true and particular account ^T*t °^-^^^ °f *^1 such parts of the said estates as were at any time or times sold been sold and since the death of the said J. B. the mother of the said plaintiffs, the moneys with the times when and to whom and for what prices respectively received the same and every part thereof were or was sold, and also an account ere rem, ^j ^-^^ ^^^ every sums and sum of money arisen from such sales or sale received by or paid to the account of or in any wise come to the hands of the said late defendant R. B. or to the hands of his bankers or any other person or persons by his order or for his use, with the , times when and from whom and for what all and every such sums ^vf°t^^ *° and sum of money were or was received or paid ; and also a full true has been cut ^^^ particular account of all timber which hath been cut down in or down and on upop all or any part or parts of the said estates of the said plaintiffs whatgroands, Viscountess S. and C. C. at any time or times since the death of the thereof Tnd to ^^^^ '^' ^' *^®^'" ™other, with the times when and the names of the whom sold, particular woods fields grounds or places in which the same were cut, and the mo- and the number of trees from time to time so cut, and the prices or neys received y^lue thereof respectivelv, and to whom the same were sold and by on account , , ^ •' ' . , „ . . < thereof, or Whom the same were cut down respectively trom time to time ; and which without also a full true and particular account of all and every sums and sura ^•^ M if ^^^"^' of money which at any time or times and when were received by or been received. coDQo to the hands of the Said late defendant R. B. or any other person or persons by his order or for his use from such timber as aforesaid, or which without his own wilful default might have been received, and from whom and for what all and every such sums and sum of money were or was received. As to the ren- 4th. Set forth also in manner aforesaid a full true and particular tal of the es- rental of all and every the said estates of the plaintiffs, &c. in the thneolfthe de- Several counties aforesaid as the same stood at the time of the death cease of the of the Said J. B. their mother, specifying therein the names of all plaintiffs' mo- and every the tenants and the yearly rents of each of the said estates crease^at*^"' ^^ ^^^^ time; And also set forth all and every increase or advance been made in of all and every or any of the rents of the said estates from time to the rents, and time made, with the particular times or periods when and from which the times g^^,jj increase or advance took place, so as to show what was the when, and the , „ , i f i • i • i yearly amount yG3,rly amount 01 the rentals ot the said estates in every year when of the rentals any advancement or increase took place from the death of the said of the estates. j_ g_ ^q t^g time, save and except such increase or advance as may have been made by the plaintiffs in the rents of such of the said estates as were delivered into their hands since their possession thereof. As to the 5th. Set forth in manner aforesaid a full true and particular woods and account of all the woods and wood-lands parcel of the said estates, rndthe^names ^^*^ the names and quantities or number of acres thereof respectively, and number and the places where the same are situate ; and also a full true and of acres there- particular account of all such lands and tenements parcel of the said estates as at any time or times were not let to any tenant or tenants, 4'tate? which °^ ^®^^ ^° ^^'^'^ °^ occupied by the said late defendant R. B. or any were from other person or persons by his order or on his account, with the EXAMINATION OF PARTIES AND OTHERS. 770 names and quantities or number of acres and yearly value thereof time to time *respective]y, and when and how long from time to time the same °'^ ^^'^^ °^ were so unlet to any tenants or tenants or were in hand or occupied the^decease'd by the said late defendant R. B. ; And set forth also in manner defendant. aforesaid the names of the several manors belonging to the said es- [ *771 ] tates, and in what particular counties the same are situate, with the ^iso as to the natures and extents of such manors respectively, and a full true and names of the particular account of all quit rents and of all fines heriots and other manors be- uncertain profits belonging or arising from each of such manors res- estates^and pectively, with the yearly amounts thereof. the descrip- 6th. Set forth in manner aforesaid the name or names and place t'ons thereof, or places of abode of the steward or several stewards employed by quft°ents^ the said late defendant R. B. from time to time in the collection of fines, &c. be- the rents and management of the said estates and each of them res- longing there- pectively, from the time of the death of the said J. B. down to the '°- time when possession of any of the said estates was taken by the nlmls\ffhe plaintiiFs, and down to the time of his own death as to such of the stewards em- said estates as he continued in possession of to that time. ployed by the 7th. Set forth in manner aforesaid a true and particular schedule fg^'^^anUn^the of the accounts of all and every the stewards and agents of the said collection of estates respectively from the time of the death of the said J. B. down the rents and to the time when the possession of any of the said estates was delivered "fTh^^^tate into the possession of the plaintiffs, and down to this time as to such „ , , , P , , ^ ^, . , , 1 « 1 ' . 1 . • , -1 Schedule re- 01 tnem as tne said late deiendant continued in possession or until quired of the his death and which are now in your possession ; and also a true and accounts of particular schedule of all the surveys field-books maps plans counter- the stewards parts of leases rentals particular books and papers of accounts min- ^i^g esfa™s^- utes entries agreements and memorandums kept by all or any of the ^iso of all said stewards or agents of or concerning the said estates or any of surveys, them or the rents profits or management thereof, and whether any ™ap^' rentals, such have at any time or times to your knowledge information or them- and belief been torn burnt or destroyed and when and by whom ; or whether any whether you have ever seen or heard of any such which are or is not ^^^^ ^^^^ ^e- now forthcoming, and what is become thereof according to the best l^^^^^ of your knowledge information and belief. 8th. Set forth also in manner aforesaid a full and particular sche- Schedule and dule and description of all and every or any books or book of account required of all memorandums agreements declarations of trust letters minutes entries accounts de- or other papers at any- time or times kept by the said late defendant ciarations of R. B. of or concerning his receipts payments or transactions for or ^°^^g!^"bT ' upon account of the plaintiffs Viscountess S. &c. or all or any of the deceased their estates, or the plaintiffs Lord S., &c. or in any wise concerning defendant of the said estates or any of them ; and whether to your knowledge in- ^'^ receipts formation or belief any such books or book of account memorandums transactions minutes declarations of trust letters entries or papers have at any for or on ac- time been torn burnt or destroyed, or whether you have ever seen ''°".'^'.^,*® or heard of any such which are or is not now forthcoming, and if so, ^^^^^ ^^^ what is become thereof according to the best of your knowledge in- whether any formation and belief. l^ave been de- 9th. Set forth in manner aforesaid a full true and particular ac- ^^^^ ^" count of all and every the manors messuages lands tenements and j^^ account 771 INTBBROGATOEIBS FOE THE required of all hereditaments which are comprised in the indentures of, &c. in the the manors, pleadings mentioned, and in the indenture of, &c. in the pleadings [ *772 ] *also mentioned, and in each and every of them ; And also set forth &c. comprised a full true and particular account and rental of all such of the said deeds*^and a ^'^'^ors, &c. as now remain unsold, specifying therein the names of rental of sucii ^^ ^^^ every the tenants or tenant or occupiers, and the names and as remain un- quantities or number of acres of the fields and lands occupied by ^°^'^- each tenant. Schedules re- 10th. Set forth in manner aforesaid a true and particular schedule T"d^ & ^'' °^ ^^^ title-deeds and writings and other deeds instruments evidences lating to the ^^^ Writings relating to the said estates of the said Viscountess S. &c. estates in in the several counties aforesaid or to any of them now in your cus- question. ^ody or power, or which at any time or times have been in your cus- tody or power or in the custody or power of the said late defendant R. B., and if any of the deeds and evidences relating to the said es- tates or any of them were at any time or times in the custody or power of the said late defendant R. B. or in your custody or power and are not now in your custody or power, set forth in whose custody or power the same now are or what is become thereof as you know have heard or for any and what reason believe. As to whether Hth. Do you not admit assets of the said late defendant R. B. the exarainant suflBcient to answer what on taking the aforesaid accounts shall ap- of ftTdec^ a'^- P®^"" *° ^^^^ ''°™^ *° *^® hands of the said late defendent ? If not, ed defendant Then Set forth in manner aforesaid a full true and particular account sufficient to of all and every the sums and sum of money securities for money answer what arrears of rent goods chattels personal estates and effects whatsoever hav^Tome\o° "^ °'" belonging to the said late defendant R. B. at the time of his his hands. death, with the kinds qualities natures true and real values thereof respectively, and also set forth a full true and particular account of all such parts thereof as have been possessed and received by or which have come to the hands of you the said now defendant R. B. as his executor, with the times when and how and from whom you have possessed or received the same, and what part or parts thereof, if any, now remain outstanding. Interrogatories for the examination of executors before the Master. Between L. M Plaintiff, and E. C. and others, Defendants. Interrogatories exhibited on behalf of the plain- tiff, before J. S. esq. one of the Masters of this honorable court to whom this cause stands referred, for the examination of the defendants M. C. and A. C. pursuant to the decree made on the hearing of this cause, bearing date the day of . As to certain * 1st. Whether Or not was T. C. deceased the testator in the EXAMINATION OF PARTIES AND OTHERS. 772 pleadings of this cause named at the time of his death possessed of particulars of *entitled to or interested in any books pictures china household goods ^^'^ testator's and household furniture and live or dead stock or any and which of [ *773 J such particulars ? If yea, Set forth a full true and particular in- personal es- ventory or schedule of such several articles, and the descriptions and ''*'^' ^" i^iyen- 1 torv or '^clip-" true and utmost value of all such articles and .eifects at the time of daie thereof the death of the said testator, and ho^w and by what means do you required to be ascertain the value thereof, or hath the value thereof been ascertain- ^^' *'°''^^ > ed by any and what persons or person and whom by name, and whe- ^^j^g ^f °jj ther or not are such several articles or any and which of them now such particu- in your or either of your possession or power, or what hath become 1"''^ ^'^^ '^^^- of the same, and have or hath or not you or either and which of you i^e^^^ave sold or otherwise and how disposed of the same or any and which of been sold, them ? Have you or hath either and which of you or have any per- what moneys son or persons and who by name by your or either of your order or ^gj^ gj'^fu" ^^' for your or either of your use possessed or received all or any and from and how which of such several articles, or any and what sum or sums of mo- the same have ney from the sale and disposition thereof and of any and which of '^^^" ^h'^t' h^' them ? If yea, Set forth a full true and particular account of all ance remains such sum and sums of money, and of the times when the same were due from the received, and of the purposes to which the same have been applied, examinants. and of the amount or balance due from you and each of you in re- spect thereof ; Set forth the several matters inquired after by this interrogatory, and all the particulars relating thereto, fully and at large according, &c. * 2d. Whether or no was the said testator T. C. at the time of his As to any otli- death possessed of entitled to or interested in any and what goods er personal chattels personal estate and effects other than and besides the several P™P^rty to • 1 • • T (■ 1 1 T • t) Tf CI which the articles inquired arter by the preceding interrogatory : it yea, bet testator was forth a full true and particular account of all such personal estate entitled, and and effects distinguishing the several particulars thereof; And whe- '■'"w the same 1 1 ° 1 .1 -.I p 1 1 i has been dis- ther or not have or hath you or either oi you or any and wriat per- posg^ of. sons or person by your or either of your order or for your or either of your use possessed or received all or any and what part of such last-mentioned personal estate and effects of the said testator T. C, or any and what moneys produced from the sale and disposition thereof or of any and what part or parts thereof? If yea. Set forth a full*true and particular account of all such personal estate and effects and of all and every the sum or sums of money so possessed and received from the sale and disposition thereof, distinguishing the several particulars thereof, together with the names of the persons or person by whom the same and every part thereof were or was pos- sessed and received, and what parts of such personal estate and effects now remain in your or either and which of your hands or power, and what is the amount or balance due from you and each of you in re- spect of the moneys so possessed or received, and all other particu- lars relating thereto fully and at large ? And whether or not is any part of the said testator's personal estate and effects now outstanding, and if so, in whose hands or power ? Declare, &c. * 3d. Have or hath you or either of you or any and what person as to any mo- or persons by your or either of your order or for your or either of neys laid out 773 INTERROSATOBIES FOR THE by the exami- nants in pay- [ *774 ] ment of the testator's debts, funeral and testamen- tary expeness. As to what debts remain unpaid. your use paid laid out expended or allowed any sum or sums of mo- ney *in or towards payment and satisfaction of the said testator's debts funeral and testamentary expenses or otherwise on account of the said testator's personal estate ? If yea, Set forth a full true and particular account of all such sura and sums of money so paid laid out or expended, together with the times when and the names of the persons by and to whom and for what the same and every part thereof have or hath been so paid laid out expended or allowed, and all the particulars relating thereto fully and at large according to the best and utmost of your knowledge remembrance information and belief. * 4th. Have all the debts due and owing by the said testator T. C. at the time of his decease and his funeral expenses been paid and satisfied, or do any and which of such debts now remain due and owing ? And if so. To whom and to what amount and on what se- curity or securities ? Declare, &c. As to the par- ticulars of the testator's in- terest in lease- hold premises, and in whose occupation the same have been since his death, and at what rent. Was or not the said testator P. C. at his death possessed of or in some manner interested in a messuage or tenement at H. in the county of M. ? If yea, Set forth the particulars of which the same consisted, and from whom and under what lease or agreement and for what term and at and by what yearly or other rent the same and every part thereof was holden by the said testator, and set forth also at what rent and other conditions and for what term of years you have since taken the same, and in whose occupation the same and every part thereof hath been since the death of the said testator and now is, and at what rent or rents. As to what property spe- cifically be- queathed has been possess- ed by the ex- aminauts be- sides such as has been de- livered over. As to what an- nuitants un- der a will are living and who have died since the tes- tator's death, what sums have been paid in dis- charge of their annui- ties, and what funds have been set apart Whether or no have you or either and- which of you since the death of the said testator possessed any and what property of the said testator which was specifically bequeathed by him, other than and except such moieties as you have delivered to the specific legatees ? If yea, Set forth a full true and particular inventory and account thereof and of every part thereof, and all the particulars whereof the same consisted, and the quantities qualities full real and true values of the said particulars respectively. * Whether or no are any and which of the annuitants in the said testator's will named living, and have any and which of the said an- nuitants died since the death of the said testator, and when in par- ticular, and hath or have any and what sum or sums of money been paid in discharge of any and whjch of their said annuities, and in particular in discharge of the annuities given for the charitable pur- poses in the said will mentioned, and when and by whom, and have any and what fund or funds been set apart and in whose name or names and in what manner to answer the same annuities or any and which of them ? Set forth, &c. to answer the same. EXAMINATION OF PARTIES AND OTHERS. *775 ^Interrogatories for the further examination of exe- cutors, defendants, pursuant to a decree. Between S. H. and others, infants, by J. F. their next friend, . Complainants, and J. S. H. an infant, J. G., S. G., and W. B., . . . . Defendants, Interrogatories exhibited on the behalf of the defendant J. S. H. for the further examination of the defendants J. G. and S. G. pursuant to the decree made on the hearing of this cause bearing date the day of , before J. S. esq. one of the Masters of this court to whom the said cause stands referred. * 1st. Have any and what money securities for money book and ^^ '° moneys other debts goods chattels estate and effects belonging to the personal ^"j^ effects re- estate of J. H. deceased, the testator in the pleadings of this cause count of the named at the time of his decease, or which have since accrued arisen business car- or become due on account of his business carried on by you by virtue "^"^ °." ^^. *^ of his will or otherwise been received by you or either and which of by virtue of you, or come to your or either and which of your hands custody pos- the will since session or power, or to the hands custody possession or power of any *^e/°'''"e'' «^- ,1 '■ 1 ■ . -4.1, Vc 3 n animation. other person or persons by your or either oi your order, or for your or either of your use since the time of and other than and besides what is set forth in your last examination put in before the said Master ? Set forth a full and particular account of all and singular such money securities for money book and other debts goods chattels estate and effects, and when and by whom and from whom and on what particular account the same and each and every part thereof were or was received. * 2d. Have you or either and which of you paid any and what sum As to the ei- or sums of money, or been at any and what expense or expenses in P^nses incur- and about your executorship or in and about the management and eutorship or'^' conduct of the business of the said testator J. S. H. either by your- the manage- selves or by any person or persons appointed or authorized by you ^f^^' of ^^^ to manage and conduct the same business since your former exami- sine'ss°since'" nation put in before the said Master in this cause, other than and the former ex- besides what are set forth in your former examination ? Set forth the amination. particulars of all such payments and expenses, and when and by whom and to whom paid and on what account; Were the same and every of them just debts and necessary expenses ? Declare according to the best of your and each of your several and respective knowledge and belief. *3d. Are there any parts of the goods chattels moneys securities Astoanyout- for money debts estates or effects either specific or pecuniary of or standing per- belonging to the estate of the said testator J. H. deceased at the ^"'^^^ ^^^^^' 775 INTERROGATORIES FOR THE effects par- time of his death or which have accrued or become due since his ticntoiy as to *(jeath, now outstanding unreceived or now remaining in your hands cific articles, undisposed of and unaccounted for, and particularly a five guinea r *776 1 P'^ce, a silver pencil-case, sundry medals and small pieces of silver coin and other things ? Have any and what means or endeavors been used by you or either and which of you or by your order to collect or get in such outstanding debts and effects, and when and in what manner? Have any or either and which of the persons owing such debts or sums of money to the said testator's estate, declined or refused to pay the same and for what reasons ? Declare the truth of the several matters inquired after by this interrogatory, according to the best of your knowledge remembrance and belief. Interrogatories for the examination of witnesses before the Master as to a testator's real estates, and the title-deeds belonging thereto. Between T. H. and S. his wife, Complainants, and H. J. and others, . . . Defendants. Interrogatories exhibited on behalf of the said complainants, before A. P. esq. one, &c. [the usual title~\ for the examina- tion of witnesses. 1. As to the 1st. Whether or no as you for any and what reason know or be- real estates to lieve was A. B. the testator in the pleadings of this cause named at the which the tes- ^j^^g ^f j^^jg death seised of or otherwise and how entitled to or in any titled and his i^d what manner interested in any and what freehold and copyhold interest in a estates, and in particular had he any and what interest in a certain particular es- estate Called P. in the parish of K. in the county of M. ? Set forth a full true and just description and particular of all and every the free- hold or copyhold estates which the said testator was seised of or en- titled to or interested in at the time of his death, and where the same and every part thereof is situate, and in whose tenure or occupation the same and every part thereof then was or since has been and now is respectively; Set forth, &c. 2. As to the 2d. Have you or had you at any time and when last in your cus- title-deeds re- tody or power any deeds or deed instruments or instrument naners latingthereto: •' "^ . . •' -j.- i, i • • i • "^^ ^ or paper-writings or writing belonging or m any manner relating to any and what freehold or copyhold estate which the said testator was seised of or entitled to or interested in at the time of his death, and in particular relating to the said estate called P., or to a certain messuage lands and premises situate in the parish of B. in the said county of M. called L. in the occupation of D. H. or to another messuage lands and premises in the said parish of B. called T. P. in the occupation of the said D. H., or to another messuage lands and premises called C. P. situate in the parish of M. in the said EXAMINATION OF PARTIES AND OTHERS. 776 county in the occupation of J. J. ? Set forth a list or schedule Schedule of all and every such deeds or deed instruments or instrument thereof re- papers or paper writings or writing, and set forth what has become s""fortJ° ^^ *of such thereof as were but are not now in your custody or power, p *777 i and set forth also whether any person or persons and who in par- '- ■' ticular as you know or for any and what reason believe has or have now or has or have at any time and when had in his her or their custody or power any and what deeds or deed instruments or instru- ment papers or paper-writings or writing belonging or in any manner relating to the said freehold and copyhold estates of the said testator, or any and what part thereof. As to what the property of a Lunatic consists, also as to the rents received and the application thereof, the re- pairs done to the estates, and what land-tax has been re- deemed. 1st. Of what did the property of the said lunatic consist at the death of his father and of what doth it now consist, and what part of it did then and doth now consist of personal property ? And set forth a fall true and just rental and particular of the real estate to which the lunatic became entitled at the death of his father, and the nature quantities and qualities thereof, and where the same and every part thereof is situate, and the yearly value of each particular thereof, and in whose tenure and occupation the same and every part thereof was at the death of the father of the said lunatic and since has been and now is, and under what yearly or other rent or rents and for what teym or terms of years, and whether at full rack-rent or how otherwise. 2d. Have not you or some person or persons and who by your or- der or to your use since the death of the father of the said lunatic been in possession or receipt of the rents and profits of the real estates to which the said lunatic became entitled at the death of his father or of some and what part thereof? If yea. Set forth a full true and par- ticular account of all and every sum and sums of money which hath and have been received by you or by any person or persons by your order or to your use for or in respect of the rents and profits of the said estates or any part thereof which have become due since the death of the father of the said lunatic, and when and by whom and from whom and for what rent and of what part of the said estates and when due all and every such sums were respectively received ; And set forth also a full true and particular account of the manner in which such rents and profits have been applied or disposed of by you in each year, particularly distinguishing how much thereof hath in each year been applied for the maintenance and provision of the lunatic and how much thereof for repairs and other outgoings. 3d. Were the repairs which have been so done to the said estates done by you by the advice of any surveyor or builder and whom, and were the same necessary and such as the tenants of the 54 777 INTBEROGATORIBS FOR THE said several premises had a right to require from their landlord ? If so, why? And was the father of the said lunatic at the same average expenses for repairs in his life-time a8 you have incurred since his [ *778 1 *death? And if not why? And whether or no is it a prudent course of management to let the said estates upon such terms that the tenants have a right to require such repairs, and might not the same have been let on repairing leases or otherwise upon terms more ad- vantageous to the landlord ? And would you have let the said estates upon such terms and have done the said repairs thereto if the said estates had been your own property? And have you not redeemed the land tax on some and what part of the said estates, and for what reason ? Interrogatories for the examination of mortgagees in possession. Between, &c. Interrogatories exhibited, &c. [Before the Master.^ As to what is 1^*- Whether or no is or are there any and what sum or sums of due for princi- money due and owing to you or any or either and which of you for pal and inter- principal or interest on the mortgaged premises in the pleadings in this cause mentioned ? If yea, Set forth how much is due for prin- cipal and how much for interest and the particulars thereof respec- tively, and how you make out or compute the same ? Set forth, &c. How long the ^^' Have you or either and which of you or any other person or examinants persons and who by your or either and which of your order or for ■ have been in your or either and which of your use been for any time and how long rents'and nro- ^'^ possession Or receipt of the rents and profits of the said mortgaged fits of the pre- premises or of any and what part thereof? If yea. Set forth a full mises, and true and just rental and particular thereof and where the same and what has been gygj.y p^^j.^ thereof is situate and the yearly value of each particular r6C6lV6Cl OQ . . account thereof, and in whose tenure and occupation the same and every part thereof. is and hath been during the time of such possession and under what yearly or other rent or rents ? And set forth also a full true and par- ticular account of all and every sum and sums of money which hath and have been received, or but for your or some or one and which of your wilful default or neglect might have been received by you or some or one and which of you or by any other person or persons and whom by your or some or one and which of your order or for your or some or one and, which of your use, for or in respect of the rents and profits of the said mortgaged premises or any part thereof, and when and by whom and from whom and for what rent and of what part of the said mortgaged premises and when due all and every such sums were respectively received or might have been received? Set forth, &c. EXAMINATION OF PARTIES AND OTHERS. *779 * Interrogatories for the examination of a mortgagee of an estate in the West Indies. Between W. D. Q. and J. G., . . Plaintiffs, ' and W. B., W. A., J. J., G. B., and W. L., Defendants. Interrogatories exhibited by the plaintiffs and the defendants J. J. and W. L. before Sir W. W. bart. one, &c. 1st. Is there or not any sum of money due and owing to you for As to the principal or interest on the mortgages in the pleadings in this cause ^™°","* °' '^^ mentioned and in the decree in this cause particularly specified ? If mtercst due" yea, Set forth how much is due to you for principal and how much on the securi- for interest and the particulars" thereof respectively, and how you *'*^^- make out or compute the same ; Set forth the matters in this inter- rogatory inquired after according to the best of your knowledge remembrance information and belief; distinguish whether you set forth the same from your own knowledge or from any and what written book document or account, or from the information of any other person or persons, and if from the information of any other person or persons set forth the name or names of such person or persons and the time when you received such information ; and if according to your belief only, set forth how and from whom in what manner and when you received the information on which you form your belief and all the grounds and reasons for such your belief, fully and at large. 2d. Have you laid out or expended any sum or sums of money in As to what necessary repairs or lasting improvements upon the estates and pre- moneys have mises in the island of J. comprised in the indentures of mortgage in ;„ „" ces'sln"*^ the decree in this cause particularly mentioned ? If yea. Set forth repairs or what sum or sums of money you so laid out or expended, and for lasting im- what repairs or lasting improvements, and when where by whom and P''0''f"'^"ts, to whom particularly such sum or sums of money and every of them respectively was or were paid laid out or expended ; And set forth and distinguish how much of such sum and sums of money hath been laid out or expended in necessary repairs, and how much in lasting improvements ; Set forth the matters in this interrogatory inquired of you according to the best of your knowledge remem- brance information and belief; distinguish whether you set forth the same from your own knowledge or, &c. [^Oonclude as in the 1st In- terrogatoryT^ 3d. Set forth a full true and particular account of the rents pro- ^.s to what duce and profits of the estates and premises comprised in the mort- rents have eaees in the decree in this cause mentioned received by you or by ^^^'^ '"^ *^*" °°,i u JJ- *i,-u out his wil- any other person or persons by your order or tor your use, or *which ^rrorv without your wilful default might have been received thereout, and L ' o^ J - • • - - . . ' - ful default when where and at what times respectively and by whom and from ,^. ^^ hftre 780 INTERROGATOKIES TOR THE been received whom respectively such rents produce and profits and every part by the exami- thereof have and hath and might have been received, and why and for what reason or reasons any and what part and parts of such rents produce and profits have or hath not been received ; Set forth the matters in this interrogatory inquired of you according to the best and utmost of your knowledge remembrance information and belief; distinguish whether, &c. [^Oonclude as in the 1st Interroga- tory.'] As to the 4th. Whether or no did you or any person for your use or on your estates taken account under color of the writ of assistance in the decree in this by the exami- cause mentioned, enter upon and take possession of any estates and nant under a premises the property of or belonging to the plaintifiB or those writ of assist- under whom they claim which were not comprised in the said several rents' re'ceived ™ortgages in the Said decree mentioned or any or either of them ? therefrom. If yea, Set forth what estate or estates or premises you or any per- son for your use or on your account so took possession, and the nature quantity and quality thereof and the particulars thereof and of every part thereof; And also set forth a full true and particular account of the rents produce issues and profits of the said estates and premises in this interrogatory inquired after received by you or by any other person or persons by your order or for your use, or which without your wilful default might have been received thereout ; and distinguish the same from the rents and profits of the estates and premises comprised in the said several morgages, and set forth when and at what time and times particularly and by whom such rents produce issues and profits as by this interrogatory are inquired after have or bath been or might have been received and why and for what reason or reasons any and what parts or part of such rents produce issues and profits have or hath not been received ; Set forth the matters, &c. ; Distinguish, &c. As to what 6th. Have you expended any sum or sums of money in lasting im- been laW^out pro^ements upon the estates and premises in the preceding interro- in lasting im gatory inquired after, being the estates and premises not comprised provements in the mortgages in the decree in this cause mentioned ? If yea. Set on the estates fQi-th -yvhat sum or sums of money you so expended and for what last mention- ... , i i i i i t i ed. lasting improvements, and when where by whom and to whom par- ticularly such sum or sums of money and every of them respectively was or were paid laid out or expended ; Set forth the matters, &c. ; Distinguish, &c. To proTe at 6th. Has it not been the constant and invariable usage for your what times the agents or managers of your estates in the West Indies to transmit owii' e3t*ates'^ accounts every year or at any and what other stated or uncertain transmitted periods- of all the sugars rum and other produce arising from the theic accounts estates in the pleadings in this cause mentioned and how the same ofVe''esta"tes ^*^® been disposed of? Were not such books annually or at some in question ; and what Other stated or uncertain periods examined and the accounts at what times therein contained signed or allowed by you as settled accounts or by such accounts gome and what person or persons duly or in some and what manner Td^and^e™'"" authorized by you to settle, and sign such accounts or to act on your tied; behalf? Do not such accounts- contain an account of all the produce [ *781 j ^arising from the estate in the pleadings mentioned, and how the EXAMINATION OP PARTIES AND OTHERS. 781 same from time to- time have been disposed of for the whole of the whether the time since the same were taken possession of under the writ of assist- ^^™^ contain ance to the present time or for any and what part of such time ; and ^^]l ti^e pro- if not for the whole of such period, Set forth from what time the duce of the accounts of the produce of the estates in question in this cause have estates in been omitted to be included in the accounts returned to you or your ofthe'ap'pUca- agents in England of the produce of your other estates in the West tion thereof Indies, and why and for what reason the same were so omitted? since the ex- Have all and each and every of such signed accounts been produced *™'"1":'i°.° J,-. '' to r possession ; and left with the Master to whom this cause stands referred, and if ^^^ whether not why ? Answer fully and distinctly the several matters inquired such accounts after by this interrogatory ; And distinguish, &c. i^a^« been left 7th. Set forth a true and accurate account of the names of the ^J. * *^' managers of the estates in the pleadings mentioned in the West ^^ ^^ |.[^g Indies and of the consignee or consignees of the produce thereof in names of the England from the time the same were taken possession of as afore- managers of said to the present time, and from what time and up to what time *'^^ estates m , , r ! f question. each and every ot such persons were manager or managers or con- signee or consignees ; Set forth the particulars inquired after by this interrogatory according to the best of your knowledge information and belief. 8th. What number of negroes or slaves was there on the estates in Astothenum- the pleadings in this cause mentioned at the time you took possession her of negroes thereof under the writ of assistance in the said pleadings mentioned? ji,^ estates in Set forth a list or schedule thereof with the names of each and every question at • of such negroes or slaves and of the issue and increase thereof exist- ^^'^ t'™^ *•* ing at the time or since produced after you had so taken possession of too™posses- the said estates ; Were or were not some and which of such negroes sion under the or slaves removed at some and what time or times off and from the writ of assist- said estates to some and what other estates belonging to you in !'^'^^„t"„ " , T ■ 1111 1 n Tp TTri • 1 the issue and Jamaica or to some and what other place or places i it yea. Which increase of such slaves were so removed ? Set forth the particulars and names thereof, and of such slaves which were so removed and of the issue and increase ^'^^^"^^'^ ^"J' _ thereof and when they were respectively so removed and what became moved to any of them, and how they and each and every of them and their issue other estates and increase were disposed of; AVere any and which of such negroes ^""^ i^°^ ^'^' or of the issue and increase thereof sold and when and to whom and ^^er any were for what price or prices ? Set forth, &c. sold and at what prices. Interrogatories for the exarnination of a mortgagee of a West India estate. Ist. Whether or no on the sale of the plantation and estate by you To prove that to H. Gr. for which the said sum of 1, was the consideration or Jjj^ crop on purchase-money, was the crop then on the said plantation or estate or at «L\'ime'°" any and what part thereof comprised in the said sale and in the said the examinant purchase-money of 1. ? If yea, whether or no have or has any sold the estate persons or person and who applied or converted any and what part ^d^therewith' 781 INTERROGATORIES FOR THE inthesale,and of the Crop SO sold to your use and when and to what amount as you that the same fp^ ^jjy g^^^ what reason know or believe ? verted to his" *-<^- Whether or no have you in pursuance of the agreement or own use. articles of sale between you and the said H. G. made the said planta- r *782 1 tion and other premises comprised in such agreement or articles free As to whether ''^^^ clear of and from all estates rights royal and other duties, par- the examinant ticularly the duties if any payable to the King of Denmark in respect hiis cleared gf (.[^g g^\^ plantation and premises on the sale and transfer thereof from all duties °'' Otherwise howsoever, and of and from all other duties claims and chargedthere- incumbrances? Do the said plantation and other premises or any on on the sale .md which of them now remain subject or liable to any and what from all 'other *^"ties claims or incumbrances contrary to the effect of the said agree- incumbran- ment? ces. 3d. Whether or no had you any security or securities for the pay- To prove whe- ment of the said principal sum of 1, and the interest thereon or ther the exam- ^^^ thereof Other than the said bond of the said testator T. B. mant held any ^ i <. i • t tt /^ i i ■ n other securi- and the covenant oi the said H. (i. and the mortgage or security oi ties besides the Said plantation or estate ? If yea, Set forth the particulars of tje testators ^^jj ,^^^ every such securities and the value and amount thereof and oond and the , . •'. , , „ , . , mortgage of what IS now due thereon and irom whom respectively. the plantation. 4th. Whether or no have you in any and what manner and when To prove what resorted for payment of any and what part of the said sum of 1. security mort- ^^^ j.jjg interest thereof or of any and what part thereof to any and to for payment what Other Security other than the said bond of the said testator T. B., of his money, and if not, why ? And whether if you had used due and reasonable and whether if diligence could not the payment of some and what part of the said due diligence principal sum of 1, or some and what part of the interest thereof the payment have been in some and what manner enforced from some and which thereof could other of vour securities other than the said bond ? not have been enforced on his other secu- rities besides the bond. Interrogatories relating to partnership matters. Between, &c. Interrogatories to be, &c. As to partner- 1st. Set forth a full true and particular account of all and every ship moneys the Sum and sums of money received by you or by any person or received. persons by the order or for the use of you and G. B. deceased in the pleadings mentioned or either of you on account of the copartnership trade carried on by the said G. B. and the said R. B., and after the decease of the said G. B. by you the said R. B., as in the pleadings mentioned, and when and from whom and to whom and by whom and on what account the same have been received and paid ; Declare the truth, &c. As to what 2d. Have you or not at any and what time or times since the moneys have day of drawn any sum or sums of money out of the trade which outly^th^x- "^^^ ^° carried on by you and the said G. B. and afterwards by you aminant for alone for any other purpose than for the purposes of such trade ? If EXAMINATION OF PARTIES AND OTHERS. 782 yea, Set forth a full true and particular account of all and every any other than such sum and sums of money and when the same were drawn out by partnership you respectively ; And have you or not placed out or applied any fn whafLe'^u- *and which of such sums of money at interest or in the purchase of rities any part government or other and what stocks and funds or in any and what thereof has other manner so as to make any profit or advantage thereby ? If yea, ^'^^'^ J^'Jp^*-!'^' Set forth how and in what manner and in what stocks funds or how L ' "" J otherwise you have applied each and every of such sums and sum of money, and all and every the sum and sums of money which you have received as the interest or dividends thereof or otherwise on ac- count or by means thereof; Declare, &c. 3d. Set forth a full true and particular account of the stock in trade As to the par- outstanding debts and other property and effects which belong to the ticulars of the said trade or business which was carried on by you and the said G. B. gfo'c'^Tn'trade as in the pleadings mentioned and which hath since been carried on and effects, by you, and all the particulars whereof the same consisted, and the and what natures kinds quantities qualities full true and utmost value thereof; o^'''h/'art^"* and in case the same or any of them are not now in your possession nership ac- or power, set forth in whose possession or power the same are ; and count, set forth an account of the debts which are justly due and owing on account of such concerned and to whom and for what the same arc due and owing ; Declare, &c. 4th. Set forth a full true and particular account of the gains and Astothegains profits which have been made since the day of in the said and pi'ofits trade or business which was so carried on by you and the said Gr. B. ^^d since' the and afterwards by you alone, and by means of the moneys which partnership. you have received on account thereof, and how and in what manner you compute the same ; Declare, &c. 1st. Whether or no were you acquainted with 0. H. late of To prove the but now deceased, and for how long did you know him before his ^^'stence of a death, and when and about what time did he die? Whether or no and °he^ terms did the said at any time and when take as a partner with thereof, how him in any and what business ? If yea, What were the terms of such '?°S ^t '^"o- partnership, and what proportion or share was the said to have ^p^^ ^^^^ therein, and for how long did such partnership continue, and when terms it was and for what reason was the same determined or dissolved and upon dissolved, and what terms, and whether or no have you at any time or times re- cjarations ^^' spectively heard the said make any and what declaration or made relative declarations respecting the said copartnership or the terms or con- thereto. ditions thereof or the commencement or dissolution thereof? Set forth, &c. 2d. Whether or no were you at Christmas and for how long To prove the before in any and what manner employed by the late in the admission of a carrying on of his paving business ? Whether or no did the said partnership, at Christmas or at any other time and when take any partner and in what and whom in his said business, and for how long did such partner- names bills ship continue, and in what name or names were the bills made out ^"re'^after-^ from that time to the persons for whom such business was done ; wards made And whether or no were you at any time and when after Christmas out. 783 INTERROGATORIES FOR THE [ *784 j To prove whe- ther after a particular pe- riod a person continued to carry on or in- terfered in the business, and by whom it was carried on, and how bills and re- ceipts were made out; also to prove a valuation raade of the stock of carts, horses, &c. employed in the business and under what agree- ment. To prt)ve who were employ- ed during par- ticular years in paving cer- tain streets, and to whom the profits were to be- long, and as to any decla- rations made relative there- to. To prove a partnership entered into in several trades, the shares of the parties inter- ested, by whom the cap- ital was pro- vided, and the agreements made relative thereto, and as to the part- nership mo- neys ; by whom stock was provided stock and the employed and by whom and by whose directions in the making out or delivering of such bills or in the receipt of moneys for the same, and in whose name or names were receipts for such moneys given ? Set forth, &c. 3d. Whether or no did the said in any and what manner and when and for how long time after Christmas continue to carry on the paving business in which he had been concerned or in any and what manner to interfere therein or in any part thereof, or by whom was the said paving business and every part thereof and particularly the business of the government boards done and performed from Christmas until the death of the said , and in whose name or names were the bills made out from that time to the persons for whom such business was done ? And whether or no were you at any time and when after Christmas employed and by whom and by whose directions in the making out or delivering of such bills or in the receipts of moneys for the same, and in whose name or names were receipts for such moneys given ? And whether or no in or about Christmas or at any other time and when were the stock of carts horses barges and other property employed in the said paving business or any part thereof valued by any person or persons and whom ? And if yea, Upon what occasion did such valuation take place and under what agreement and at what prices ? Declare, &c. 4th. Whether or no were and the said or either and which of them in or about the years or employed in the paving of and any other and what street or places in the city of L. ? If yea, To whom were the profits of such particular paving business to belong as you for any and what reason know or believe, and did you at any time or times and when hear the said make any and what declaration or declarations respecting the same ? De- clare, &c. 5th. Whether or no did you the defendant I. C. and R. C. now deceased or either and which of you at any time or times and when respectively enter into copartnership with the bankrupt T. C. in the pleadings of this cause respectively named, in the several trades or businesses of or in any and which of such trades or businesses ? And if yea. In what shares and proportions were you the said I. C. and the said R. C. and the said bankrupt respectively interested in such trades and every of them, and what was the capital employed in such trades or businesses or every of them and by whom was the same provided, and what were the conditions and agreements between you in each and every of such trades with respect to the providing of capital and the bringing into and taking out monejs from the said trades ; and to whom did the buildings stock and utensils in each and every such trade belong at the commencement thereof, or by whom were the same provided, and what was then agreed between you with respect thereto ? And set forth the particulars of all such buildings stock and utensils and the full true and utmost value thereof and of every part thereof, and what hath since became thereof? Declare, &c. at the commencement of the partnership ; an account required of the partnership value thereof. EXAMINATION OP PARTIES AND OTHERS. *785 "^Interrogatories as to the sale of a ship, the moneys re- ceived for freight, and the sums expended for seamen's wages and the ship's disbursements. Between H. D. , . . Plaintiff, and Gr. B. . . Defendant. Interrogatories exhibited on behalf, &c. [usual title before a master.'] 1st. Whether or no is the ship called the Sir E. H. in the plead- As to the sale ings of this cause mentioned sold ? If yea, When and where and °^ ^^^ ^'^'P' by whom and to whom and at what price was the same so sold ; and neys produced have you or hath or have any other person or persons and who by thereby. your order or to your use or by the order or to the use of any other person or persons and whom at any time or times and when respec- tively received the said purchase-money or any and what part there- of, or for what reason doth the same or any and what part thereof now remain unreceived and what hath become thereof, and if the said ship be not sold for what reason does the same remain unsold ? 2d. Whether or no have you or hath or have any other person or As to the mo- persons and who by your order or to your use received any sum or neys received sums of money for the freight of the said ship ? If yea, Set forth ^°^^^^ freight a full true and particular account of all and every such sum and sums ° '^' of money which hath or have been received by you or any other per- son or persons by your order or to your use for the freight of the said ship, and when respectively and for what and from whom and by whom all and every such sums were so received and set forth also whether any and what sum or sums of money now remain due and owing in respect of the freight of the said ship, and from whom and for what all and every such sums are due and owing, and why the same respectively are unreceived ? 3d. Whether or no have you paid any sums or sum of money for As to the sums the seamen's wages and other charges in respect of- the said ship P^"^/°'^ ^®^" forming a prior lien to the demand of the said complainant, or for ^nd the ship's any bills drawn by the captain of the said ship from the island of 0. disburse- for the ship's disbursements ? If yea. Set forth a full true and par- ments. ticular account of all and every the sum and sums of money which hath or have been so paid by you and when and to whom and for what all and every such sums were respectively paid' and disbursed ; Set forth, &c. An interrogatory for the examination of a person pro interesse suo. Have you any and what estate right or interest in or to the pre- mises in the pleadings of this cause mentioned situate in , or 785 CROSS-iJNXJSJiKUtrATOKlJaH. the rents and profits thereof, or in any and what part or share parts [ *786 ] or shares *thereof ? If yea, Set forth the nature and extent of such your estate right or interest, and how and in what manner you make out or derive the same ? SECT. IV. SOKMS OF INTERROGATORIES FOR THE CROSS-EXAMINATION OF WIT- NESSBS.(l) In Chancery. Interrogatories to be administered for the cross-examination of witnesses to be pro- duced sworn and examined on the part of the plaintiffs in a certain cause now de- pending and at issue in the High Court of Chancery, wherein the Most Noble Charles Duke of D. and J. S. are complainants, and B. C. spinster is defendant, on the part and behalf of the said defendant. As to witness * 1st. Did you act as the auctioneer of and put up to sale by having acted public auction the premises in the pleadings in this cause men- and prepared' tio'^^d • If J^a, Did you prepare or cause to be prepared the printed the particulars particulars of sale by which the said premises were sold, and by of sale ; whom and by whose direction were such printed particulars of sale prepared and by whose direction and upon whose account and for whom did you prepare or cause the same to be prepared ? Did [ *787 ] *you not or did not your assistants or some other agent of the said complainants and who by name inform the company present at (1) An adverse party may cross-examine a witness to the same point to which he has been examined in chief, but not to any new matter ; Dean and Chapter of Ely v. Sir Simeon Stewart, 2 Atk. 44. A party who examines a witness is bound to keep him in town for forty-eight hours after his production at the seat of the adverse clerk in court; and if cross-interro- gatories are left with the examiner within the forty-eight hours, the party must keep the witness in town till his cross-examination is finished. Where a witness left London before the forty-eight hours were expired, the party producing him was ordered to bring him back at his own expense, or the examination in chief to be sup- pressed ; Whittuch Y. Lysaght, 1 Sim. & Stu. 446, 8. See the 25th of the New Orders in Chancery, ^oatea. If a witness refuse to be cross-examined it is a cause of exception to his testimony, and the court on motion will suppress his deposition ex parte; Wyatt's Prac. Reg. 419 ; where a witness who had been examined on the part of the plaintiif secreted himself before he could be cross-examined, the plaintiff was ordered to procure him to attend to be cross-examined within a fortnight, or in default, his deposition on the plaintiff's part to be suppressed ; Flowerday v. Collet, 1 Dick. 289. Cross-examining a witness is no waiver in equity of an objection on the ground of interest to the competency of such witness : Moorhouse v. De Passou, Coop. 300 ; S. C. 19 Ves. 433 ; and see note (1) to Stokes v. M'Kerral, 3 Bro. Ch. Ca. by Belt, p. 228; Vaughanx. WorraU,3 Swanst. 395. CKOBb-iJVTKilKOUATORIES. 787 the time of the sale of the said premises or represent to them that As to repre- the said premises were let on lease as stated in the said particulars mentations of sale, and did you in any and what manner explain to them such ^^he ^ain- statement contained in the said particulars of sale ? Did you not pro- tiff's agents at duce and exhibit to the said company present at the time of the said *Jj^ ^^^^> .*^*' sale a lease or some paper-writing purporting to he a lease of the werele™on'^ said premises, and was or not the same produced and shown to the lease, and as said company by you or by your assistants or some other agent of t° ^'^^ having the said complainants and whom by name, as the lease or copy of fng^rument" the lease of the said premises referred to in lot 2 of the said partieu- purporting to lars of sale? Did you not or did not your assistants or some other be the lease or agent of the said complainants and who by name read or state from ^ "^"^^j-g^rred the said paper-writing or alleged or pretended lease to the said com- to in the par- pany present at the time of the said sale, the terms and conditions ticularsofsale under which the said premises in the pleadings of this cause men- '^"'^ also as to COTllII16tl'tS tioned to be comprised in lot 2 of the said particulars of sale were so made by him stated by you or such other person or persons to be on lease ? Did on the cove- you not or did not your assistants or some other agent of the said nants therein complainants and who by name at the time of the said sale comment upon the covenants and conditions contained in such pretended or alleged lease, and represent the same as being highly advantageous to a purchaser and more beneficial to a landlord than what are usually introduced into leases in general, and particularly did you not or did not such person or persons represent or state to the said company at the time of the said sale, that the tenant of the said premises was bound to keep the same in repair, and was not entitled to timber from off the same premises for that purpose, or to that or the like or some other and what effect ? Declare, &c. * 2d. Did not Mr. A. the solicitor for the said defendant apply to As to applica- you for a copy or abstract of the alleged lease under which the *'°j''f'°^., - T -1 1 T n • 1 1 T- • 1 • i- J made to wit- premises described as lot 2 in the pleadings in this cause mentioned ^gss by the were stated to have beea let, and when or at what time was such defendant's application made ? Did you not at the time of such application in- ^°''"'f'j5°'j^i^ form the said Mr. A. for the first time that no such lease had been jggg^ jg^se, then granted, and had any such lease in fact been then granted ? and whether Declare, &C. the same had ' m fact been granted. * 3d. Did you not and when deliver to the said Mr. A. as the j^^g to witness solicitor for the said defendant a draft or copy of a draft lease pur- having deliv- porting to be the same as was produced by the auctioneer or agent eredtothede- ^ , ,°i,. ,. 1 • 1 1 ■ , , ,1 ,■ J- ii -J 1 fendant's soil- on behalf or the said complainants at the time ot the said sale, or ^■^^^^ ^ jj^ff what did you represent the same to be at the time, and what passed lease purport- between you and the said Mr. A. relative to such draft lease ? Did ing '" ^^ ^^^ not the said Mr. A. return such draft lease to you with some and p^^duge^at^ what observations thereon, and did you not afterwards and when re- the sale, what turn the same to him with several and what alterations made therein ? passed rela- -r^ 1 tive thereto, Declare, &c. and as to the alterations ** 4th. Did not the intended lessee of the said premises make r ^'jgg t some and what objections to the said proposed draft lease, and did ^jj^^j^ ^g^g 788 CROSS-INTBREOGATORIES. made by wit- not Considerable negotiations take place between you and the said ness therein, intended lessee before the terms of the said proposed draft lease were As to the Ob- agreed upon and settled with him ? Did not the indenture of lease ify the intend- which was ultimately executed by the said intended lessee contain ed lessee to Several and what clauses different and in what respect from the said the proposed draft lease when first delivered to the said Mr. A., and also different and^'thrnego- ^"^^ '^^ ^^^^ respect from such draft lease when last delivered to the tiatious which said Mr. A.? Declare, &c. took place in * 5th. What is the date of the said indenture of lease ? When and consequence g^j. ■yf\^g^^ tjjjjg -y^j^s the said indenture of lease of the said premises and what respect ^^^ counterpart thereof executed by the lessor and the lessee thereof the lease when respectively? And when or at what time did you give or cause notice executed dif- thereof to be given to the said Mr. A. or to his copartners as the draft when ^ solicitor for the said defendant or to either and which of them, and first delivered, deliver or cause to be delivered to him or them a copy of such lease ? As to the date Declare, &c. and time of * g(;ii_ j)q yo^ know any other matter or thing not inquired after theTease and ^7 t^ese interrogatories which may tend to the benefit or advantage when notice of the Said defendant in this cause ? If yea. Set forth the same fully thereof was and at large as if you had been thereto particularly interrogated. defendant's solicitor. The concluding general interrogatory. As to the * Was the said L. N. capable at the time when the said agreement knowledge of -^^ras made of forming an accurate judgment or competent opinion of land^ffent°of *^® value of the coal mines or beds of coals under the lands and the value and grounds in the said memorandum of agreement and release com- na.ture of coal prised; And had he as you do for any and what reason know and mmes,mwhat {jgijgyg a,ny and what knowledge of and practice in such matters or capacity he. ■' . °. r- was employed m any matters relating to coal mmes, and nad he ever and when bythedeceas- been employed in any coal mines or in or about concerns or busi- ther ^r"^ d '^^^^ °^ description, or was he in any respect acquainted there- to his occupa- with, and had he in any and what manner been in any way obtaining tion in life knowledge and information of the nature and value of coal mines, previously ^nd in what capacity or character was he employed by the said Sir T. B. deceased, and especially at the time when the said memoran- dum of agreement and release were respectively made and thence- forth to the time of his decease, and what had been his business or occupation previously to his being so employed by the said Sir T. B. ? Declare the truth and your utmost knowledge remembrance and belief herein. Whether a * Upon what occasion of and prior to the execution of the said deed was read release by the said Sir T. B. was the same read over by or to "rantoVrevi- ''^™' ^^^ ^7 whom by name was the same read over to him ? Was ously to his the Said Sir T. B. as you do for any and what reason know or executing the believe aware of the terms and conditions of the said release, and wh'th^°h ^° particular of the number of acres of coal thereby conveyed and was aware of ^^e mode of payment for the same and that the same might be got- the terms ten as quickly as possible, and that the payment for the same would [ *789 ] *not be completed for 276 years or for any and what number of years, CROSS-INTEREOGATOKIES. 789 and that according to the terms of the said release he would be a thereof or the trespasser if he entered the pits of the said company to ascertain effect thereof, that the iron stone and upper bed of coal were not .damaged or car- ^f payment of ried away, and that the coals then under the lands then occupied the considera- by the before-named S. F., &c. or any and which of them were tion-money. therein comprised ? Set forth the several matters inquired after by this interrogatory fully and at large according to the best and utmost of your knowledge remembrance information and belief, together with the means of knowing and reasons for believing the same, and the truth declare, &c. * If the said Sir T. B. had been aware of all or any and which ^^ to a party of the circumstances in the last preceding interrogatory mentioned teT'ade'ed^""' or that the said upper bed was intended to be included so as to destroy without its and lock up the iron-stone, would he as you do and for any and what having been reason know or believe have executed the same ? And did he not exe- ^^^"'^o^ ^j^ cute the same in confidence that the said release had been prepared part and ia with a view to the fair and equal benefit of both parties, and in igno- confidence ranee that such terms and conditions as in the preceding interrogatory *'^'** '' ?"!;'* mentioned were contained therein, and if not, why not ? And had prepared. not the said Sir T. B. a high opinion of the said J. H. and J. J. or of one and which of them, and did he either read over the whole of the said release or any and what part thereof himself or give directions that any other person should do so for him before he executed the same ? And if yea, Whom did he direct to read over the whole of the said release or any and what part thereof, and to whom and in whose presence were such directions given? Set forth, &c. [_Con- clude as in the preceding interrogatory.'^ * What was the age of L. N. at the time when the memorandum As to the age of agreement in the pleadings in this cause mentioned was made, and ^""^ ^'^^^f °^ what was the state of his bodily health and mental faculties at the ties of a stew- time ; had he not been twice or how often stricken with palsy previously ard or land thereto, and was he not thereby to a great or to some and what ex- agent, and tent or from some and what other cause inefiicient or incapacitated attaclirofpX to transact business requiring knowledge and skill, or requiring the sy he was not exercise of mental faculties to transact the same, and in particular incapacitated was not the said L. N. unfit and unequal to treat for the .sale of the "^terinto a*° said coal mines and for making proper stipulations and provisions for contract rela- carrying such, treaty into effect ? Declare the truth and your utmost ting to coal knowledge remembrance information and belief herein. "iew^to^secur * Were you not acquainted with the hand-writing of the said L. ;^g ^he inter- N. *for a long and for some and what period of time in particular est of his em- before the two letters dated respectively the Slst day of October pioyer- 1789 and the 18th day of December in the same year, marked ^^!°*^f j?*" respectively with the letters (C) (D) and which have been produced hind-writing and shown to you were written or do bear date, and is not the man- of certain let- ner or character of hand-written of the same respectively a different ters (written *790 CROSS-INTERROGATORIES. by a steward *character and manner from that wherein the said L. N. wrote at °'^tf°'h*?h°*'^ some and what earlier period during the time you have known his the same was hand- writing, and in particular is not such character or manner of not more fee- hand- writing much more unsteady and indistinct and more scrawling ble than at an and SO far as you can judge more feeble than the character or manner and 'whether ' °^ *^® ^^^^ ^- '^'^ hand-writing at some and what earlier period in he was not particular of your acquaintance with him, and do you not know or then in fact in believe and for some and what reason that the said L. N. was in a of health^'^'^ feeble state of health at the time when the said two letters do respec- tively bear date ? Declare the truth of the matters aforesaid, together with your utmost knowledge and belief herein and your reasons for the same. Interrogatories to be administered for the cross-examination of witnesses to be produced sworn and examined on the part of the plaintiff in a certain cause now depending and at issue in the High Court of Chancery wherein M. H. is complainr ant and J. H. and E. his wife, B. R. and H. L. and J. H. an infant are de- fendants, on the part and behalf of the said defendant J. H. As to the dne * 1st. Are you a subscribing witness to the pretended or alleged execution of a j^st will and testament of J. H. deceased in the pleadings of this ^' ■ cause named, and which has been exhibited to you on your examina- tion on the behalf of the said plaintiff? If yea, Did the said J. H. sign the said pretended or alleged last will and testament and publish the same as his last will and testament in your presence and in the presence of the other subscribing witnesses thereto or either and which of them as you know, and were you all present together with him when he signed and published the same as his last will and tes- tament or how else ? And did you and the other subscribing wit- nesses to the said pretended or alleged will respectively or either and which of them sign or set your or their name or names as subscribing witnesses to the signing and publishing thereof by the said J. H. in the presence of the said J. H. or how else and did not you or the subscribing witnesses to the said pretended or alleged will or one and which of them attest and subscribe the same when the said J. H. was not present ? And on what day and what time of the day and when was the said pretended will signed and published by the said J. H. and attested by you and the other subscibing witnesses, and how came you to be an attesting witness to the said pretended cr alleged will, and by whom were you requested to be present at the signing and publishing thereof and to attest the same ? And was there or not some other and what last will and testament of the said J. H. at the time when he signed and published the said pretended or alleged will? And if yea, What has became thereof? Declare, &c. [ *791 ] * 2d. Are you a subscribing witness to the alleged writing or me- CROSS-INTBKROGATORIBS. 791 morandum at the bottom of the pretended or alleged last will and As to the re- testament of J. H. deceased in the pleadings of this cause named and publication of which has been exhibited to you on your examination on behalf of ® ^' • the said plaintiff, and alleged to be a re-execution and republication thereof by the said J. H. deceased? If yea, Did the said J. H. sign the said pretended or alleged writing or memorandum in your pre- sence and in the presence of the other subscribing witnesses thereto or either and which of them as you know, and were you all present together with him when he signed and published the same as a re- execution and republication of his last will and testament or how else ? And did you and the other subscribing witnesses to the said pretended or alleged writing or memorandum respectively or either and which of them sign or set your or their name or names as subscribing wit- nesses to the signing and publishing thereof by the said J. H. in the presence of the said J. H. or how else? And did not you or the other subscribing witnesses to the said pretended or alleged writing or memorandum or one and which of them attest and subscribe the same when the said J. H. was not present ? And on what day and at what time of the day and when was the said pretended or alleged writing or memorandum signed and published by the said J. H. and attested by you and the other subscribing witnesses, and how came you to be an attesting witness to the said pretended or alleged writing or me- morandum, and by whom were you requested to be present at the signing and publishing thereof and to attest the same ? And was there or not some other and what last will and testament of the said J. H. at the time when he signed and published the said pretended or alleged writing or memorandum ? And if yea. What is become thereof? Declare, &c. * 3d. How do you know and what particular reason have you to As to the sa- believe that the said J. H. was of sound and disposing mind memory °''y ^^^ y"*^"" and understanding at the time when he signed and published the said the'testator.° pretended or alleged will or writing or memorandum ? And was he or not or might he or not for anything you know or have any reason to believe to the contrary be at the time of unsound and undisposing mind memory and understanding and incapable of making a will, and how did you consider him to be in that respect ? And in what state of health of body and of what age was he at the time ? And what opportunity had you to judge of his sanity or insanity or of his capacity or incapacity to make a will or conduct his worldly affairs? Aiid did or not you or the other attesting witnesses respectively or any or which of them converse with him at or before or after the time when you say he signed and published the said pretended or alleged will or writing or memorandum ? And if yea, Was his con- versation sensible and indicative of his capacity to make a will and manage his concerns or how else? And had you or not any acquaint- ance or intimacy with him for any and what length of time before or after he as you say signed and published the said pretended or alleged will or writing or memorandum ? And was he or not in some and what manner as you know or believe and whyinfluenced and prevailed upon and by whom to make the said pretended or alleged will or to *792 CEOSS-INTERROGATORIES. *sign or publish the said alleged writing or memorandum ? And was he or not under great mental imbecility from his age and infirmities? Declare, &c. The conclud- * 4th. Do you know any other matter or thing not inquired after inggeneralin- by these interrogatories which may tend to impeach the validity of terrogatory. ^-^^ g^j^j pretended or alleged will or writing or memorandum to the benefit of the said defendant J. H. in this cause ? If yea, Set the same forth. Title of interrogatories for the cross-examination of a parti/ examined pro interesse suo. Between W. A., . . . Plaintifi", and H. S. &c. &c. . Defendants. Interrogatories exhibited before W. W. P. one of the Masters of the High Court of Chan- cery for the cross-examination of the above named defendant W. 0. pursuant to an order made in this cause bearing date the daiy of , whereby it was ordered that the said defendant W. 0. be at liberty to go before Mr. P. one of the Masters of the said court, and be examined pro interesse suo. Interrogatories to the competency of witnesses, exhi- bited to them on their cross-examination.{2) As to witness * Are you not interested in all or some and which of the matters being interest- in issue between the parties or some and which of them in this suit ed '" t'V'., and shall you not and in some and what manner lose or gain by suit and whe- the event thereof, and especially are you not the defendant in an ther he is not action of trespass or in some and what action at law wherein the (2) If a witness is interested and is linown to be so previously to his examination, a general interrogatory should be framed requiring him on his cross-examinatioif to answer whether or no he is interested ; aud if he untruly denies that he is interested the party affected by his evidence may discredit the witness by examining other wit- nesses as to the truth of that proposition ; 2 Madd. Ch. Pr. 422 ; (there may be how- ever a general interrogatory to every witness whether he has any interest, Purcell v. Mamamara, 8 Ves. 325, 2d edit.) If however a party has omitted to examine a wit- ness as to his interest in the suit, he may, before publication move on affidavit for leave to re-examine the witness as to the fact of interest ; see Vavghan v. Worrall, 2 Madd. Rep. 322, 328 ; which case was affirmed on appeal, 2 Madd. Ch. Pr. p. 422, note ((). If a man is examined as a witness and is at his examination disinterested, but afterwards becomes interested and either plaintiff or defendant in the cause, his de- positions may be read; Gross v. Tracey, 1 P. Wms. 288 ; Olynn v. The Bank of Eng- land, 2 Ves. sen. 42 | Cope v. Parry, 2 Jac. & W. 438, 9. CROSS-INTERllOGATORIBS. ' *793 ^defendants in this cause or some and which of them are plaintiffs, defendant in and wherein is or was at issue or depending either mediately or imme- -^ action of diately the right and title of the complainants and defendants in this wWcr^tbe ti- causeor of some and which of them to tiie same beds or strata of coal, tie to the lands the right and title whereto is litigated and in issue in this cause, or to '" question is some and which of the same beds or strata, or to some or what other ll^^^fw^^i^, ,j „, .. Ti n-1'1^ wnetner tiver- beds or strata oi coal, and has not a verdict been found in the afore- diet was not said action at law in favor of the plaintiffs therein, and is not execu- found for the tion stayed therein by the order and injunction of the High Court of P'^'nt't^'f ^l r\, 1 , ■ 1 • ,1 • "^1 T ■ °n , law, andwhe- Onancery obtained in this cause upon the application of the com- ther execution plainants or of some and which of them therein ? Declare the truth is not stayed of the several matters aforesaid, together with your utmost knowledge ^^ injunction. and belief herein. * Have you not lately and since this suit was instituted, and at A? to whether what tinie in particular, become a co-partner together with the before ^^''"^^^s has named several complainants or some and which of them in the estab- co-partner lishment or concern called or known by the name or style of the with the *'L M Company" and in the pleadings mentioned, and have plfi'iutiifs in you not thereby or by some and what other means acquired, and have carried on by you not now and do you not and for what reason claim to have a them, and beneficial interest or some and what interest in the beds or strata of whether he coal the right and title whereto is litigated in issue between the com- a°ben"e'ficial'™ plainants and defendants or some and which of them in and by this interest in the suit, or a beneficial or some and what interest in some and which of l^nds the title the said beds or strata of coal or in some and what parts thereof, or y'^^''^'° ^^ m r ' issuG between. in some and which of the several matters whereto this suit has rela- the parties. tion ? Declare the truth of the several matters aforesaid, together with your utmost knowledge and belief herein. * Shall you not be in some manner a gainer or be otherwise As to whether affected in case the will of the said J. H. should be established and ^''"^^^ ^^■s ... ■ o Tp f 1 1 1-1 not an interest carried into execution : It so, set forth how and in what manner or in the estab- in what respect you are likely to be a gainer or affected thereby ; Hshment of Declare, &c. "^« Y-''^ '° ' question. Interrogatories for the examination of a witness on the voir dire as to his being interested.{S) \_For a form of title, vide antea, No. 8, p. 687.] * 1st. Have you any and what interest in the performance or To ascertain non-performance of the agreement in the pleadings of this cause '^Jiat interes mentioned? And if yea, Set forth .the nature of such your interest ^e"^^^^,^- and how the same arises ; Declare, &e. auce of the (3) See Stokes V M'Kerral, 3 Bro. Ch. Ca. 228 ; S. C. cited by the Vice-Chancellor in Vaughan v. Worrall, 2 Madd. Rep. 328. 55 *7U ARTICLES TO DISCREDIT WITNESSES. agreement in ** 2d. Have you any and what interest in the determination or qnestion. decision of this, cause, or can you by any and what means gain ot terest in\he" ^°^® ^^ ^^^ event of the said suit ? Declare, &c. event of the s"it- * 3d. Are you under any and what honorary or legal obligations As to any ob- and to whom to pay or secure or to see paid or secured the costs or nmy be under ^^7 P'*'"* °^ *^^ ^°^*s °^ ^^^ ^^^^ defendant which she has or may to pay or se- incur in this suit or be liable by decree or otherwise to pay ? De- cure the de- clare, &C. fendant's costs. Articles to discredit witnesses. [i) Articles exhibited by A. B. complainant in a certain cause now depending and at issue in the High Court of Chancery wherein the said A. B. is complainant and C. D. defendant, to discredit the testimony of E. F., G. H., and J. K. three witnesses examined before L. H. esq. one of the examiners of the said court on the part and be- half of the said defendant. (5) 1st. The said A- B. doth charge and allege that the said E. F. hath since his examination in the said cause owned and acknowledged that he is to receive or be paid and also that he doth expect a consider- able reward gratuity recompense or allowance from the said defend- ant in case the said defendant recovers in the said cause or the said cause be determined in. his favor, and that the said E. F. is to gain or lose by the event of the said cause. 2d. The said A. R doth charge and allege that the said G. H. and J. K. are persons of bad morals and of evil fame and character, and that they are generally reputed and esteemed so to be, and that the said G. H. and J. K. are persons who have no regard to the nature or (4) A party ia at liberty to examine a witness by general interrogatories as to the credit of the witness, and in contradiction of such facts sworn to by the witness as are not material to what is in issue in the cause ; Purcell V, Maenamara, 8 Ves. 327, 2d edit., and the cases referred to in note (31}, ibid. Examinations to the credit of witnesses can only be by order upon special appli- cation with notice, whether before or after publication ; but though it is a special motion, it is not necessary in all cases that it should be accompanied by affidavits, see Watmore v. Dickinson, I Ves. & B^ 267, and note (6), 2 Madd. Cb. Pr. 423. If evidence as to the credit of a witness is taken upon the examinatiou in chief it may be suppressed as impertinent; Mill y. Mill, 12 Ves. 409; 2 Madd. Ch. Pr. 423, 4. There is no precise time within which the examination as to credit is to take place; Piggott V. Croxhall, 1 Sim. & Stn. 467 ; in which case the plaintiffs were allowed to examine by general interrogatories (in support of articles) as to the credit of the wit- nesses, and also as to the fact of their having previously to their examination made declarations contrary to their depositions, the Court being of opinion that the fact of such declarations was not material to the issue in the cause. Forms of titles of interrogatories to discredit the testimony of witnesses will be found in pages 687, 8, antea. (5J See 2 Newl. Ch. Pr. 317. ORDERS. *795 ^consequences of an oath, and that they are persons whose testimony is not to be credited or believed. The title musLhe varied if the depositions are taken hy commission ; As thus ; Articles exhibited by A. B. complainant in a certain cause depending and at issue in the High Court of Chancery wherein the said A. B. is complainant and C. D. defendant, to discredit the testimony of E. F. and G. H. two witnesses examined by virtue of a commis- sion issued out of the said court to J. K. and others directed for the examination of witnesses in the said cause upon certain interrogatories exhibited before them for that purpose, and which said witnesses were , examined in the said cause on the pa^t and behalf of the said defendant. ^CHAPTER XVL [ *796 ] FORMS OF 0RDBRS..(1), I. Order to amend an Answer. Forasmuch, &c. that the defendant since putting in his answer to , the plaintiff's bill hath discovered that in the title to his said answer he hath made a mistake in the christian name of the plaintiff by calling him instead of -, It is therefore prayed that the defendant be at liberty to take his said answer off the file and amend the same in the title thereof by naming the plaintiff instead of , which is ordered accordingly,, and that after such amendment the defendant do re-swear the said answer. (1) As by the practice of the Registers two days elapse before an order is delivered out by the Register after it has been made, the solicitor should, whenever it is an object to save that time, as where an order has been made to dissolve an injunction nisi, or to confirm a report m«, draw up the order himself on the same day on which it is obtained, and carry it to the Register's office to be passed and entered immediately. So also where an order for the transfer of stock has been made, two days may be saved by the solicitor drawing out the Register's certificate (without which the Ac- countant General refuses to act), and carrying it to the Register to be signed ; the following is a common form of such, certificate ; To the Accountant-General of "I the Court of Chancery. / Morris v. Johnson. Pursuant to an order made in this cause, bearing date the day of , 1. (in words at length) bank three pounds per cent, annuities, being one-third part of the sum of 1, like three pounds per cent, annuities standing in your name in trust in this cause, are to be transferred unto th« defendant Samuel Johnson. 796 OKDBRS. II. Order that bonds of suhmission to arbitration be made an order of court. Whereas the plaintiff and defendant have severally entered into bonds, &c. [reciting the bonds^ which said bonds were duly executed as by the affidavit of a subscribing witness thereto now produced and read appears, It is on the motion of ordered that the said bonds of submission entered into as aforesaid be made an order of this court, and that the said parties do submit to and be finally con- cluded by the award which the said arbitrators shall make pursuant to the said commission according to the statute in that case made and provided. [ *797 1 *III. Order directing that an agreement he made an wder of court. Whereas by articles of agreement bearing date, &c. it is recited and agreed as follows; (that is to say,) [seiting forth the instrument verbatim;^ Now upon motion, &c. and upon producing one part of the said articles under the respective hands and seals of , and praying that the same may be made an order of this court. It is ordered that the said agreement be made an order of this court, to be observed and performed by the parties thereto according to the tenor and true meaning thereof, Mr. of counsel for con- senting thereto. * IV. Order for payment of the plaintiff's costs, part to the execu- tors of his deceased solicitor, and other -part to his present solicitor ; the deceased solicitor before his death obtained an order for taxa- tion, but died before the same was completed. Vice Chancellor. Eecital of pe- tition, stating an or- der made on farther direc- tions, direct- ing a reference to the Master to tax the Wednesday the — year, &c. 1826. • day of , in the 6th Between J. S. on behalf of himself and all other the creditors of B. R. deceased. Plaintiffs, and J. R.., M. D. and others, . Defendants. Whereas A. C. and C. R. and C. C. did on the 26th day of July 1825 prefer their petition unto the Right Honorable the Lord High Chancellor of Great Britain, setting forth that by the order made on the hearing of this cause on further directions and bearing date the 1st day of August 1823, it was amongst other things referred to the Master to tax the parties' costs subsequent to the last taxation thereof, and what should be taxed for such subsequent costs of the ORDERS. 797 plaintiff should be paid by the Accountant-General of this court to plaintiff's Mr. T. 0. or his solicitor; That before the completion of the said .^"'^^^l"^"' suit and taxation of costs the said Mr. T. 0. died, having duly payment made his will and thereby appointed the petitioners A. C. and C. R. thereof to his executors thereof, who have since duly proved the same in the Pre- solicitor. rogative Court of Canterbury ; and the petitioner C. C. since his °^?'^J' °^ *^ death has acted as the solicitor of the said plaintiff, and prosecuted fy^^ ti,e taxa- the said suit to a close ; That the said taxation of *costs has lately r ^yog i been completed, and the costs of the said plaintiff amount to the sum ,. , . j?nir7 1 1 'iTiT > Ti 1 tion, having 01 A-iol. as appears by the said Master s report, and that such part made a will thereof as had accrued in the said T. O's life-time and belong to his and appointed estate is the sum of 183Z. which the first-named two petitioners are ^7'P "tf^^.pe- entitled to receive and be paid as such executors as aforesaid, and executors who the residue thereof amounting to the sum of 621. the petitioner C. C. proved the is entitled to receive and be paid as the said plaintiff's present soli- '*^'"' ^'^'^ ^^^^ citor in the said cause, but the said Accountant-,Ueneral cannot pay ^i^j^^.^ ^^s^^ '' the same to the petitioners without the order of this court; And since acted as therefore praying that instead of the direction in the said order dated ^^^_ plaintiff's the 1st day of August 1823 to payout of the sums therein mentioned brought' the*^ what should be taxed for the plaintiff's subsequent cost to Mr. T. 0. suittoaclose; his solicitor, the said Accountant-General might be directed to pay statement of to the petitioners A. C. and C. R. or one of them as such executors the amount of as aforesaid the sum of 183?. part of the said plaintiff's said subse- */„'l°f„^ ''^^' 11 1 •• /-) oil the execu- cause, " The amount of moneys produced by sale ot real estates as tion by peti- aforesaid, and might also have paid to her any future dividends which tioner of the may accrue due thereon previous to such transfer thereof; Where- conveyances upon, &c. upon hearing the said petition, the said will, the said order gg^g a^rans- ' dated the 23d day of December 1817, the said order dated the 13th fer of there- day of February 1821, the said report dated the 27th day of January gaining sum 1821, an affidavit of L. W. the wife of the defendant J. W. whereby 1^,^^°^ ^j^^' it appears that she is the mother of the defendant L. L. S. and that the moneys the said L. L. S. has attained her age of twenty-one years, and that produced by she is sole and unmarried, and the Accountant-General's certificate 11^1° * * *^' read and what was alleged by the counsel for the petitioner and for the said parties and purchasers, This Court doth order that the 9561. bank 3 per cent, annuities standing in the name of the Ac- countant-General of this court in trust in this cause, " The defend- ant L. L. 8. her account of dividends and interest," together with any interest which shall accrue on the said bank annuities previously to the transfer thereof hereby directed, be transferred and paid to the defendant L. L. S. spinster ; And it was ordered that the sum of 13Z. cash in the bank to the credit of this cause the like account be paid to Mr. 0. S. the petitioner's solicitor on account of his costs ; And upon the due execution by the petitioner of the several con- veyances and assurances of the said estates sold as in the petition mentioned to the several purchasers thereof, such execution to be 816 OKDEKS. yerified by affidavit, It IS oedbebd that the 2545Z. bank 3 per cent, annuities standing in the name of the said Accountant-Gen- r *817 1 ^^^^ ^^ ^^^^^ ^^ *^^^ cause, "The amount of moneys produced by *sa]e of real estates," and the interest to accrue due on the said bank annuities previously to the transfer thereof hereby directed, be trans- ferred and paid to the said defendant L. L. S. spinster ; and for the purposes aforesaid the said Accountant-General is to draw on the bank according to the form, prescribed by the act of parliament and the general rules and orders of this court in that case made and provided. *XXI. Order directing the transfer of a sum of slock to the trustees of a settlement, which stock hy a former order made before the marriage had been directed to he transferred to the wife upon the execution by her of certain conveyances ; vide antea, 811. At the Rolls. Master of the Rolls. Monday the 25th day of February, &c. 1828, Between J. M. and J. his wife, E. L. and M. his wife, Plaintiffs. and J. S., J. W. and L. his wife, &c. &c. Defendants. Eecital of pe- Whereas the Rev. H. 0. clerk and L. L. 0. his wife (late L. L. S. tition of the one of the defendants above named) and the Rev. J. W. (one other w'ift and the °^ ^^^ ^bove named defendants) and the Rev. J. L. W.) clerk did trustees of on the 12th day of February 1828 prefer their petition unto the their marriage Right Honorable the Master of the Rolls, setting forth that by an settlement, ^^^^^ ^^^^ ^^ ^.j^jg ^^^^^ bearing date the 8th day of August 1827, stating an or- _ , _ i-\'iti it . der directing It was (among Other things) ordered, that upon the due execution a transfer to by the Said petitioner of the several conveyances and assurances of be made to the j.^g estates sold as in the said petition mentioned to the several pur- L. 0. then L. chasers thereof (such execution to be verified by affidavit) the sum of L. S. spinster, ,£2545 bank 3 per cent, annuities standing in the name of the Ac- °5 V't'" fl-^ countant-General of this court in trust in this cause, " The account in°the^Ac- '"^ ^^ moneys produced by sale of real estates," and the interest to accrue countant- due on the said bank annuities previously to the transfer thereof General's thereby directed should be transferred and paid to the said defendant ttie°ex(fcu°ion *^^ ^^^^ petitioner (and by her then name and addition of) L. L. S. by her of cer- Spinster ; That before the complete execution of the said several con- tain convey- veyances and assurances of the said estates sold as in the said petition ^^'^^^' and order mentioned by the said petitioner L. L. 0., and before any fina'i'compie-* transfer of the said sum of £2545 bank annuities unto her, she the tion thereof said petitioner intermarried with and is now the wife of the pe- and transfer of titioner H. 0., but before the solemnization of such marriage certain intermarried indentures of settlement were made and executed bearing date respec- with the peti- tively the 3d and 4th days of February now instant, the latter made ORDERS. *818 *between the said petitioner L. L. S. spinster of the first part, the tioner H. 0. ; petitioner H. 0. of the second part, the petitioners J. W. and J. L. that previous- W. of the third part, and P. P. and P. B. L. therein described, of ^^1^^'^^*°^'' the fourth part, whereby after reciting (amongst other things) that ■^s.s executed the said petitioner L. L. 0. (then L. L. S.) was possessed of or en- whereby L. L. titled {inter alia) to the said sum of 2552Z. bank 3 per cent, an- ^^ l°^^^^f^l nuities standing in the name of the said Accountant-General, and stodclo^ras- which would be transferred unto her immediately upon the execu- tees upon the tion of certain conveyances to be certified by affidavit, and that a t™^*? therein marriage had been agreed upon and was shortly intended to be ™^°*'°"^ ' had and solemnized between the said H. 0. and L. L. S., and that upon the treaty for the said marriage it was stipulated and agreed (amongst other things) that the said sum of 2545Z. bank 3 per cent, annuities should be settled and assured upon and for the trusts intents and purposes and with under and subject to the powers provisoes declarations and agreements thereinafter expressed and declared of and concerning the same ; It was (amongst other things) witnessed that in pursuance of the said stipulation and agreement and for efi"ectuating the same, and for and in consideration of the ' said marriage, he the said H. 0. for himself his heirs executors and administrators and also for the said L. L. S. his said intended wife did covenant promise engage and agree, and the said L. L. S. did with the privity consent and approbation of the said H. 0. (testified as therein mentioned) for herself her heirs executors and adminis- trators further consent covenant declare and agree to and with the said J. W. and J. L. W. their executors administrators and assigns, that in case the said intended marriage should take effect they the said H. 0. and L. L. S. should and would with all con- venient speed after the solemnization thereof make do and execute or cause and procure to be made done and executed or join and concur in and procure all proper and necessary parties to join and concur in all such acts deeds matters things transfers and as- surances as by the said J. W. and J. L. W. or the survivor of them or by their or his counsel should be required for effectually trans- ferring and making over the said sum of 2545?. bank 3 per cent, annuities which were so standing in the name of the said Accountant- General and to which the said L. L. S. was so entitled as aforesaid so and in such way and manner as that the same bank annuities might be vested in or in the joint names of the said J. W. and J. L. W. their executors administrators and assigns upon the trusts and to and foi* the ends intents and purposes and with under and sub- ject to the powers provisoes declarations and agreements therein- after particularly declared of and concerning the same ; That the that the peti- Detitioner the said L. L. 0. has now fully completed the execution Y°^^^If' ^' ^' ■rX , ., , T •' i-ii -lii hasfullycom- of the said several conveyances and assurances oi the said estates pieted the ex- sold as in the said order mentioned, and is thereby become entitled ecution of the to have the said sum of <£2545 bank 3 per cent, annuities trans- conveyances, ferred, and the petitioners are desirous that the same should be to haTe^th°" transferred into the names of the said J. W. and J. L. W. pursuant fund transfer- to their said covenant in that behalf; That since the date of the redtothetruss said order the sum of .£38 cash has arisen and now stands to the tLment^*^^*' *819 ORDERS. that a half- *credit of the said cause the before-mentioned account for half a year's dend^is^du'e •^i^l^end upon the said sum of 2545Z. bank annuities, which sum the which the pe- petitioners H. 0. and L. L. 0. his wife are desirous should be paid titioners are unto their Solicitor on account of his costs of obtaining the said order fhouldbe aid ^^^^ o^t^is application; And therefore praying that the sum of 2545Z. to their solid- ^^^^ ^ per cent, annuities standing in the name of the Accountant- tor, General in trust in this cause, " The account of moneys produced by and praying Sale of real estates," and mentioned in and directed by the said order ma* be^^ans- °^ *^® ^*^ ^^^ °^ August last to be transferred to the petitioner L. L. ferred to the ^' ^J ^^^ ^^^^ name and description of L. L. S. spinster might be petitioners the transferred unto the petitioners J. W. and J. L. W. upon the trusts trustees of the and to and for the ends intents and purposes and with under and tlement* ^^ " subject to the powers provisoes declarations and agreements men- tioned and declared in and by the said indenture of settlement of the 2d day of February now instant of and concerning the same ; and and the t^at the sum of S8l. cash in the bank to the credit of this cause the amount of the like account might be paid to the petitioner's solicitor on account of fhlreon^be*^"^ his costs of obtaining the said order and of this application; Where- paid to the pe- upon, &c. upon hearing the said petition, the said order dated, &c., titiouer'B soli- the said indenture of settlement dated, &c. and the afiSdavit of P. B. citor. jj^ whereby it appears that the said conveyances and assurances have been duly executed, and an affidavit of the said P. B. L. identifying the said indenture of settlement, and that there is not any other set- tlement of the fund in question, and the Accountant-General's cer- tificate read, and what was alleged by the counsel for the petitioners, His Honor doth order that the 2545?. bank 3 per cent, annuities standing in the name of the Accountant-General of this court in trust in this cause, " The account of moneys produced by sale of real estates," directed by the order of the 8th day of August last to be transferred to the petitioner L. L. 0. by her then name and descrip- tion of L. L. S. spinster, be instead thereof transferred to the peti- tioners the defendants J. W. and J. L. W. upon the trusts and to and for the ends intents and purposes and with under and subject to the powers provisoes declarations and agreements mentioned and de- clared in and by the indenture of settlement of the 4th day of Feb- ruary instant in the petition mentioned of and concering the same, it appearing by the affidavit of P. B. L. that the several conveyances and assurances mentioned in the former order have been duly exe- cuted by the petitioner L. L. 0.; And it is ordered that the sum of $38 cash in the bank remaining on the credit of this cause the like account be paid to Mr. C. S. the petitioner's solicitor on ac- count of his costs of obtaining the said order and of this application ; And for that purpose the said Accountant-General is to draw on the bank according to the form prescribed by the act of parliament, and the general rules and orders of this court in that case made and provided. ORDERS. *820 XXII. Order for a will to he delivered out of the Prerogative Court m order to he proved on, a commission,, security heing first given for the return of the same. Upon opening, &c. by Mr. M. of counsel for the defendant T. A. it was alleged that this cause came on to be heard, &c. ; and it was ordered that the same should stand over with liberty for the de- fendant T. A. to prove the will of W. A. dated, &c. made and exe- cuted by him at B. in France, whereof defendant T. A. is the only devisee and executor ; That the said defendant on the death of the said testator proved the will in common form, and thereupon the said testator's original will was deposited in the Prerogative Court of C. ; That W. one of 'the witnesses to said will is master of a packet-boat which goes from D. to C. and B. in F., and H. one of the other witnesses to the said will now resides at B. aforesaid, and B. the other witness lives in L. ; That as said defendant T. A. cannot get the said W. up to L. or the said H. to come over from B., it is necessary that he should have a commission to be executed at D. and B. in order to examine the said witnesses to prove the said will, at which commission it will be necessary that the said will be produced ; and it being customary in such cases for the Prerogative Office to deliver out original wills to be proved at places distant, on taking bond from one or more sufficient persons in a reasonable penalty to return the same, the said defendant T. A. hath applied to the register and record-keeper of said Prerogative Court to have said will delivered out accordingly, but they refuse to deliver out the same upon any security, but insist upon sending a messenger of their own with it, which will put the said defendant to a considerable expense ; It was therefore prayed that, &c. ; Where- upon and upon hearing, &c. His Lordship doth order that the said defendant T. A. be at liberty to take out a commission for the examination of his witnesses at B. and D. aforesaid to prove the said will, and that the plaintiff and the other defendants in this cause do join in commission and strike commissioners' names within six days after notice hereof, and in default thereof, that the said de- fendant T. A. be at liberty to sue out such commission directed to his own commissioners ; and it appearing that the defendant T. A. is the only devisee who can claim any real estate under the said will, It is ordered that the original will be delivered out by the proper officer of the Prerogative Court to a proper person to be named by the said defendant in order to be proved at the said commission, such person first giving security to be approved of by the Judge of the Prerogative Court to return the same in from the delivery thereof to him. *821 ^ ORDERS. *XXIII. Order for the like purpose as the preceding order. Upon opening, &c. by Mr. Attorney-general of counsel for the plaintiffs and defendants in this cause, it was alleged that W. R. having in his life-time contracted several debts, on the day of made his will, and thereby devised to the defendants L. H. and W. R. his son all his real estate in trust to be sold for payment of his debts, and appointed them executors, and died in , soon after which the defendants his executors proved the same in common form, and thereupon the said testator's original will was deposited in the Prerogative Office, and that the plaintiffs in Term exhibited their bill in this court against the defendants for an account of the said testator's personal estate, and to have the said will proved and the testator's real estate sold for payment of his debts, to which the said defendants have appeared and put in their answers and plain- tiffs have replied, and the cause being at issue, a commission issued for the examination of witnesses in the county of , at which com- mission it will be necessary to have the said testator's will proved in regard the defendant W. R. who is heir at law to said testator is an infant, and it being customary in such cases for the Prerogative Office to deliver out original wills to be proved in the country, on taking bond from one or more sufficient persons in a reasonable penalty, the parties in this cause have applied to the registers of the Preroga- tive Court to have the same delivered out accordingly, but they refuse to deliver out same on any security, but insist to send a messenger of their own with it, which will put the parties to a con- siderable expense ; and in regard the testator's estate is not sufficient for payment, it was therefore prayed that the registers of the Preroga- tive Court or their deputy may forthwith deliver out the said origi- nal will in order that the same may be proved at the said commission, upon giving sufficient security to bring back and re-deliver same unto the said office in six weeks ; Whereupon and upon hearing Mr. Solicitor-General of counsel for the register of the Prerogative Court, an order in a cailse of L. against D. dated , an order in a cause B. against B. dated , and an order in a cause S. against B. dated read, and what was alleged by the counsel for said parties, His Lordship doxh order that the said original will be delivered out by the proper officer of the Prerogative Court of a proper person to be named by the plaintiffs and defendants the said executors and devisees under the said will, in order to be proved at the said com- mission, such person first giving security to be approved of by the Judge of the Prerogative Court to return the same in six weeks from the delivery thereof to him. DECREES AND DECRETAL ORDERS. *822 *XXIV. Order to compel a witness to attend to he examined, or stand committed. Upon motion, &c. that is a material witness for tlie plaintiff in this cause, and hath been served with a subpoena returnable im- mediately to attend and be examined as a witness for the plaintiff in this cause, as by affidavit now produced and read appears, notwith- standing which the said hath not attended to be sworn and examined, as by the examiner's certificate now also produced and read appears ; It is thereupon ordered that the said do in four days after personal notice hereof attend and be sworn and ex- amined as a witness for the plaintiff in this cause, or in default thereof that the said do stand committed to the prison of the Fleet. XXV. Order for liberty to exhibit interrogatories as to the credit of a witness. Upon motion, &c. it was alleged that the plaintiffs have examined A. B. as a witness for them' in this cause who is a person of .ill fame, and the defendant hath exhibited articles in the examiner's office touching the credit of the said A. B. as by certificate appears ; It was therefore prayed that the defendant may be at liberty to exhibit interrogatories for the examination of witnesses to the credit of the said A. B. which is ordered accordingly. *CHAPTER XVII. [ *823 ] DECREES AND DECRETAL ORDERS.* I. Decree opening stated accounts, and directing a general account to be taken of all dealings and transactions between the plaintiffs and defendants ; costs given as to so much as relates to setting aside the stated accounts. His Lordship doth declare that the three stated accounts dated, &c. ought to be opened and set aside and doth order and decree the ^ Decrees are interlocutory or final. A decree which finally disposes of the sub- ject of litigation, so far as the court is concerned, reserving no further questions or directions for the future judgment of the court, is a final decree, though some further proceedings are to be had before a master, exceptions to whose report may bring the matter again before the court ; Mills v. Hoag, 1 Paige, 0. R. 18 ; Vanmeter v. Van- meler, 3 Gratt. 148; Dickenson y. Codwise, 11 Paige, 189; see Bates y. Delavan, /^ 823 DECREES AND DECKETAL ORDEKS. same accordingly ; And it is hereby referred to Mr. one, &c. to take a general account of all dealings and transactions between the 5 Paige, C. R. 299 ; Tennent v. Patton, 6 Leigh, 196; Wetherford T. James, 2 Ala. ItO ; Cook V. Bay, 4 How. (Miss.) 485 ; Talbot v. Todd, 1 J. J. Marsh. 456 ; Graham v. Elmore, Earring. Ch. 265 j such as the appointment of a commissioner to sell a part of the subject of controversy, and account for, and pay the proceeds to the parties, with liberty to them to apply to the court to add other, or substitute new commissioners, or for a partition of the subject directed to be sold in kind ; Harvey v. Sranson, 1 Leigh, 1 08 ; or a reference to a master to ascertain the amount of the debt. Johnson V. Everett, 9 Paige, C. R. 636. A decree of foreclosure and sale of the premises, in a bill to forclose a mortgage, is a final decree. And a sale under the decree, after the death of a defendant, without a revival of the suit, is not an error for which the decree will be reversed on a bill of review. Whiting v. Bank United States, 13 Pet. 6. Where a claim in the original bill becomes unimportant before decree, and the de- cree does not pass upon it, but disposes of all other matters in the suit, the decree is final; Ruff v. Starke, 3 Gratt. 134; and a decree appointing a trustee to sue under a deed of trust, is final as to this matter, and binding alike on strangers and on parties to the decree. Oriffin v. Doe, 12 Ala. 783. A decree becomes final and conclusive at the adjournment of court, even if it did not become so by enrolment; Sagory v. Bayless, 13 S. & M. 153; and where a case was fully submitted to the chancellor, although a motion was made that it be dismissed without prejudice, it was held, that the chancellor did not err in making a final decree in the case. Doggelt v. Lane, 12 Miss. 215. Judgment upon a demurrer in favor of a petition, or against a plea, is not final but interlocutory ; and the court must inquire and find the facts ; Warner v. Tomlinson, 1 Root, 201 ; Gray v. Hays, 7 Humph. 588 ; for a decree is not final unless all the material facts are ascertained at the time; and a decree referring the cause to a master to ascertain such facts is interlocutory only ; Jaqves v. Methodist Episcopal Church, 17 Johns. R. 548 ; in like manner, where the further action of the court is necessary to give completely the relief contemplated by the court, there the decree upon which the question arises, is to be regarded not as final but interlocutory. Cocke V. Gilpin, 1 Rob. (Va.) 20. A decree deciding the rights of the parties as to the matter in controversy, and awarding costs, is still but interlocutory if it be referred to commissioners to execute it, and the court has afterwards to act upon the report ; Mackey v. Bell, 2 Munf. 523 ; see also Price v. Nesbit, 1 Hill, Ch. 445 ; and a decree ordering an act to be done be- fore the decree can be effectual, is interlocutory. Hays v. Mays, 1 J. J. Marsh. 497. Where an account is stated and agreed upon by the parties themselves, it is not error to refuse an interlocutory decree to account, unless there is ground laid to sur- charge and falsify the stated account. Calvit y. Markham, 3 How. (Miss.) 343. Where money is directed to be paid into court, or property to be delivered to a receiver, or to a new trustee, or where anything is to be done which may be the subject of exception or appeal, the decree is not final but interlocutory only ; Bellamy v. Bellamy, 4 Florida, 242 ; and an order in chancery, directing an issue at law, is interlocutory merely, and may therefore be set aside at a subsequent term. Dabbs v. Dabbs, 27 Ala. 646. It is the constant practice to make a decree between co-defendants, founded upon the pleadings and proofs between the plaintifi' and defendants, or upon the allega- tions in the bill admitted by the defendant sought to be charged by his co-defendant, either expressly or by suffering the bill to be taken as confessed ; Jones v. Grant, 10 Paige, C. R. 348 ; Elliott v. Pell, 1 Id. 263; Terby v. Grigsby, 9 Leigh, 387; Cram- ford V. McDaniel, 1 Rob. (Va.) 448 ; Tyson v. Tyson, 2 Ired. Ch. 137 ; Henderson v. McClure, 2 M'Cord, Ch. 466 ; Motte v. Schult, 1 Hill, Ch. 146 ; Piatt v. Oliver, 3 M'Lean, 27 ; see also. Law v. Sutherland, 5 Gratt. 357 ; Morris v. Terrell, 2 Rand. 6 ; Contee v. Dawson, 2 Bland, 264 ; but although a decree between co-defendants, grounded upon the pleadings between the complainants, may be made, yet such decree, to be binding, must be founded on and connected with the subject-matter in litigation between the complainant and one or more of the defendants. Gibson v. McOormick, 10 Gill & J. 65. It seems, however, that there cannot properly be a decree between co-defendants in equity, in any case in which the plaintiff is not entitled to a decree against both or either. Hubbard v. Goodwin, 3 Leigh, 492. Equity will decree against the party ultimately responsible in the first instance, where the parties are before the court at the time of the decree, but not otherwise ; Garnett v. Macon, 6 Call, 308 ; therefore, on a settlement of accounts in a court of equity, a decree may be rendered for the defendant for a balance due him against the plaintifiT; Pitzgeraldv. Jones, 1 Munf. 150 ; and there may be a decree for one defendant against another, where at the same time the decree operates in favor of the com- (Ul^ DECBEES AND DECRETAL- ORDERS. 823 plaintiffs or either of them and the defendants, and also of the value of any timber felled and taken by the defendants from off the plain- plaiuant. McNeil v. Baird, 6 Munf. 316. A decree may also be made between co- plaintififs. Haskelly. Raoul, 2 Const. Rep. 852. In a suit in rem, the court should not render a decree in personam, unless the proper parties, as defendants, have an- swered the bill, and thereby given jurisdiction over the person. Graham v. Sublett, 6 J. J. Marsh. 44. One defendant cannot have a, decree against a co-defendant, without a prayer for it in his answer, in the nature of a cross-bill; Myers v. Baker, Hardin, 544 ; but a deeree may be rendered on the testimony of a co-defendant, if Ills interest is precisely balanced between the parties to the suit, although he is an indispensable party to the bill. Montandon v. JJeas, 14 Ala. 33. _ la rendering a decree in chancery, the rights of the parties at the time are to be con- sidered, and not as they were at the time of the institution of the suit ; Randel v. Brown, 2 How. U. S. 406; and the decree must find the facta which warrant it. Sampson v. Eunt, IRoot, 20Y, 521; Burdoinv. Shellon, 10 Yerg. 41. Where several applications are decided, or several directions in the cause are given at the same time, but one order should be entered, embracing the whole. Hunt v. Wallis, 6 Paige, 0. R. 371. Where various defendants claim, under the same title, a decree directing a joint surrender is proper ; Brand v. Webb, 2 A. K. Marsh. 574 ; and it is no objection to a decree, that it is nominally in favor of one defendant against another, if it is substantially in favor of the complainant; WestY.Belches,5 Munf. 187; and the court may decree a sale of land subject to a life estate in a third person, directing compensation for the life estate. Rut- ledge V. Williamson, 1 Dessau. 159. A decree ordering a sale of property in the hands of heirs, must specify and identify it ; Oayle v. Singleton, 1 Stewart, 566 ; and it is erroneous to decree a conveyance of land, without identifying the bounds with reason- able certainty. Fribble v. Davis, 3 J. J. Marsh. 633. A decree should show upon its own face what the court has decided ; Honore v. Cobmesnil, I J. J. Marsh. 506 : and a final decree confirming a master's report ascertaining the amount due, and awarding execution thereon is sufficiently certain. Moore v. Hubbard, 4 Ala. 187. Informality will not vitiate a decree ; Harlandi/. Eastland, Harden, 590 ; but a court of equity cannot, consistently decree the title to one party and the land to another. Whitesides v. Lackey, 1 Litt. 80. It is a settled rule, that a decree must conform to the allegations in the pleadings as well as to the proofs in the cause ; Crocket v. Zee, 7 Wheat. 522 ; Ringgold v. Ring- gold, 1 Har. & G. 11; Pigg v. Corder, 12 Leigh, 69 ; Corneal v. Banks, 10 Wheat. 181 ; Stuart V. Mechanics and Farmers Bank, 18 Johns. R. 496 ; Cloud v. Whiteman, 2 Harring. 401 ; Smith v. Smith, 1 Ired. Ch. 88 ; Bosman v. Draughan, 3 Stewart, 243 ; Langdon v. Roane, 6 Ala. 518; Morgan v. Crabb, 3 Porter, 470; Uaury v. Mason, 8 Id. 211 ; Dickinson v. Morgan, 8 Dana, 130 ; Bougher v. Miller, Wright, 328 ; Handly v. Young, 4 Bibb, 376 ; Delaware and Hudson Canal Company v. Pennsylvania Canal Company, 21 Penn. (9 Harris,) 131; and a complainant cannot obtain a decree for more than he has asked in his bill. Simons v. Guthrie, 9 Cranch, 19. And where a bill prays for particular relief, " and other relief," the orator can have no relief inconsistent with the particular relief prayed. Wiltshire y. Marfleet, 1 Edw. Ch. 654; aliter, where the prayer for further relief is in the disjunctive ; lb. ; see also, Clifton v. Haig, 4 Dessau. 330 ; Marine and Fire Insurance Bank v. Early, Charl. R. M. 279; Peck v. Peck, 9 Yerg. 301 ; Miami Exporting Company v. United States Bank, Wright, 249 ; Wilkin v. Wilkin, 1 Johns. 0. R. Ill ; Driver v. Fostner, 5 Porter, 9 ; Butler v. Durham, 2 Kelly, 413 ; Tayloe v. Merchants Fire Insurance Company, 9 How. (U. S.) 390. A court of equity can only decree upon the case made by the pleadings, although the evidence shows ground for further relief Mundy v. Vawter, 3 Gratt. 518 ; see also, Scudder v. Young, 25 Maine, (12 Shep.) 153; Horton's Appeal, 13 Penn. St. R. (1 Harris,) 67. And where a bill is properly excepted to, upon the ground of the insufficiency of its aver- ments to charge a party proceeded against, no decree can be pronounced against him, whatever may be the proof Berry v. Pierson, 1 Gill, 234. A decree may refer to the bill for a description of the lands on which it is intended to operate ; Jones V. Belt, 2 Gill, 106 ; but it is informal and irregular to make a decree, without Betting out the premises upon which it is predicated. Hartfield v. Brown, 3 Eng. 283. Before a final decree can be rendered, all the necessary parties must be before the court, or due notice given them either by service of summons, or by publication, and a decree ^ro eonfesso entered against those who have failed to answer; Anthony v. Shannon, 3 Eng. 52 ; bat a decree may be made against one of two heirs who submits to the jurisdiction, though the other, from non-residence, cannot be made a party to the bill. Holman v. Bank of Norfolk, 12 Ala. 369. Where the answer denies the case made out in the bill, but states facts which, entitle the party to relief different 823 DECREES AND DECRETAL ORDERS. tififs estate, in the taking of which account the Master is to make unto all parties all just allowances ; And for the better taking the said account all parties are to be examined upon interrogatories, and produce all books and papers in their custody or power relating thereto upon oath before the said Master as the said Master shall direct ; And it is ordered and decreed that defendants do pay to the plaintiffs their costs for as much of the cause as relates to the setting aside the said stated accounts to be taxed by the said Master, and his Lordship doth reserve the consideration of the rest of the costs of this suit until after the said Master shall have made his report, and the said parties are to be at liberty to apply to the court as oc- casion shall require. from that asked for in the bill, and expresses a willingness to do equity accordingly, a court of chancery will give a decree to the complainant according to the facts stated in the answer. Bailey y. Bailey, 8 Humph. 230. A decree in chancery cannot be rendered against an infant defendant without proof, although the answer filed by his guardian ad litem admit the bill to be true. Hough v. Doyle, 8 Blackf 300 ; Sough V. Canby, lb. 301. Where a decree is rendered against infants, it should give them a day in court to contest the claim of the complainant when they arrive at full age ; Anderson v. Irvine, 11 B. Monroe, 341 ; Dow v. Jewell, 1 Foster, (N. H.) 470; and neither a default nor a decree ^ro confesso can be taken against an infant, but a guar- dian ad litem, should be appointed for him, who should answer for him, and then the complainant must make full proof of his right to the relief sought; Enos v. Oapps, 12 111. 255; Heath v. Ashley, 15 Miss. 393 ; Hendricks v. McLean, 18 Id. (3 Bennett,) 32 ; Grace v. Field, 13 Geo. 24; and a decree cannot be entered against infants with- out proof to sustain the case. Hamilton v. Oilman, 12 111. 260. Where the plaintiff claims against two defendants, to recover as surety for both, alleging they are both principals, he cannot have a decree against one of them as a joint surety; Howard v. Jones, 5 Ired. Eq. 15 ; and where a decree in a bill in equity, by creditors of a deceased person, directs a sale of his property by a commissioner, it should specify the persons to whom, and define the proportions in which the pro- ceeds are to be distributed. Arnold y. Arnold, 11 B. Monr. 81. Where a complainant makes several allegations, and only proves a part of them, he is entitled to relief so far as his proof goes; Lytle v. Pope, 11 B. Monr. 297 ; but where a plea to the merits of a bill is found for the defendants, the bill should be dismissed. Bell v. Simonds, 14 Miss. 100. Where, however, the allegations of a bill authorize any decree what- ever against a defendant who is in contempt, it is error in the chancellor to dismiss it as to him. Hogan v. Smith, 16 Ala. 600. A decree, pro confesso, cannot be rendered against a defendant who has not been served with process; Hunter v. Bobbins, 21 Ala. 585 ; nor can a bill be taken ^ro confesso while a plea in bar remains undisposed of. Jordan v. Jordan, 16 Geo. 446. A prayer for relief may be in the alternative, and one or the other may be granted, as the court shall decide. Ward v. Ward, 1 Jones, Eq. (N. C.) 334. It is not necessary that a decree should recite the matters proved on which it is based. The pleadings and proofs being now matters of record, the necessity for such recital no longer exists. Dousman v. Hooe, 3 Wis. 466. A decree in favor of a fictitious person is a, mere nullity. United States v. Samperyac, 1 Hemp. 118. By the rules of practice for the courts of equity of the United States and the State of Pennsylvania, it is provided, " that clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may at any time before an actual enrolment thereof, be corrected by order of the court, or a judge thereof, upon petition, without the form or expense of a rehearing." Also that " In drawing up decrees and orders, neither the bill nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order, but the decree and order shall begin in substance as follows : ' This cause came on to be heard (or to be further heard, as the case may be,) at this term, and was argued by counsel, and thereupon upon consideration thereof, it was ordered, adjudged and decreed as follows, viz.' " [Here insert the decree or order.] DECREES AND DECRETAL ORDERS. 823 *II. Decree for payment of the arrears of an annuity secured hy bond given for maintenance with interest upon each half-yearly payment, against the devisee of the real and personal estate of the obligor. (See Newman v. Auling, 3 Ath. 579.), This cause came on to be heard 9th November 1747, before the ^"^ acconnt to Lord Chancellor, -when his Lordship was pleased to order and decree arr^a^^V^"^* that it should be referred to Master Allen one of the Masters of this and interest at Court, to take an account of what was due to the complainant for ^i- per cent on the arrears of an annuity of 30Z. a year secured by bond, and to each half jear- compute interest on each respective half-yearly payment from the from the^end end of six months after the same respectively became due after the of six months rate of 4 per cent, per annum ; And the defendant having by her ^^^^^ ^f-"^^ ^^- answer admitted *that the personal and real estate of her said father '^^^Ioq^' * were together more than sufEcient to answer the said annuity. It was L J further ordered that the plaintiff should pay to the said defendant ^^i„?f^°ass''ets what should be found due for the arrears of the said annuity and directed to pay- interest at such time and place as the said Master should appoint, the amount to and continue to pay to plaintiff the growing payments of the said ^^ iJ?""*^ "^"^ annuity as they should become due half-yearly ; And in case the de- should direct- fendant should not pay what should be' found due for the arrears of and in default the said annuity and interest as aforesaid, then the plaintiff was to of payment be at liberty to apply to the court for a sale of a sufficient part of ^|*,'?^"^ '? ^"^ the real estate in question ; And it was further ordered that the said apply for sale Master should see a sufficient part of the said real estate set apart of the deceas- for securing to the plaintiff the growing payments of the said annuity ^"^'^ ^^^^ ^: during her mother's life ; And it was further ordered that the de- ^^ \^^ mTsIm" fendant should execute to the plaintiff a proper conveyance of the to set apart said estate or grant thereout for securing the growing payments of sufficient real the said annuity accordingly with the approbation of the said Mas- pur^'tj^'g ani ter ; And that the defendant should pay to plaintiff her costs of nuity, and the this suit up to this time to be taxed by the said Master ). the con- defendant to sideration of subsequent costs reserved till the Master should make e^'=<^"'<' '^P™- , . ... ^ . 10 per convey- his report; liberty to parties to apply, to. ance or grant; defendant to pay costs up tothehearing; subsequent costs reserved. III. Decree by consent directing a reference to arbitration.. His Lordship doth by consent order that all matters in difference between the plaintiffs and defendants in this caus-e be referred to the award and determination of I. H. of, &c. esq. so that he shall make and publish his award in writing of and concerning the premises in Award to be question on or before now next ensuing, or on or before such' made by a fix- further time as hereinafter mentioned, and that the said parties do eilt^e! stand to abide by perform and fulfil the award which the said arbi- trator shall so make of and concerning the premises ; And by the Arbitrator to like consent it is ordered that the said arbitrator is to be at liberty beatiibertyto 57 S2-i DECREES AND DBORBTAL ORDERS. examine upon to examine upon oath or upon interrogatories or otherwise at his oath the par- discretion the said plaintiffs and defendants or any of them, or any nesses" " Other person or persons who shall be produced as a witness or wit- before whom nesses before him by either party, such plaintiffs and defendants to be sworn; Or Other person or persons being sworn before one of the Masters of this court or before a Master Extraordinary in the country if all parties to there shall be occasion ; And the said parties are to produce before ^'^°d"'^& *^^ ^^^^ arbitrator upon oath if required all deeds instruments books ' " papers writings and accounts in their or any or either of their cus- tody or power touching the matters in question or any of them as the costs of the the Said arbitrator shall direct ; And by the like consent it is ordered suit and of the ^j^^^ ^j^g costs of this Suit and also of the said reference and award in the discre- ^^^ ^^^ Other costs charges and expenses attending or relating to the tion of the ar- matters in difference between the said parties or either of them shall bitratorwhois ^jg j^ ^jjg discretion of the said arbitrator, and shall be paid in such [ *825 ] *manner and by whom and to whom and at such time or times as to be at liberty shall be directed by his award; And by the like consent it is ordered to enlarge the ^^^^ ^j^^ gg^j^j arbitrator shall be at liberty by writing under his hand tiiwfi lOr m Hilr— ■/ »< o ing his award, *" enlarge the time for making his award from time to time as he and to pro- shall see occasion ; and that the said arbitrator may if he thinks fit ceei ex partem proceed ex parte in the said reference in case of the refusal or neglect party atteiTd-'' °^ ^^J °^ *^® ^^^^ parties to attend him thereon after reasonable ing; notice in that behalf; And by the like consent it is ordered that no No bill to be bills or bill are or is to be filed in any court of equity by any or either filed against of the Said parties against the said arbitrator for any matter or thing ™' he shall do in about or touching the matters to him hereby referred; served^ to^the -^^^ ^^^ °'" ^i^^^r of the said parties are or is to be at liberty to parties to have apply to this court to have the said award made an order of this court, the award made a rule of court. IV. Minutes of a decree directing a reference to arbitration, with a direction for appointing an umpire in case the arbitrators disagree. Let all matters in difference between the parties be referred to the arbitration and determination of T. T. and S. S. and they to make their award on or before , and in case they shall not agree they are to name an umpire, and he is to make his umpirage on or before , and both parties are to produce all books and papers relating to the matters in question in their custody or power before the arbi- trators and umpire respectively, or such of them as the arbitrators and umpire shall respectively direct, to be ascertained by the oath of the respective parties producing the same, and the award or um- pirage is to be made an order of this court, and no bill in equity is to be brought against the arbitrators or umpire. DECREES AND DECRETAL ORDERS. 825 V. Decree for establishing a charity. His Lordship doth declare that the charitable bequest and uses Decree the made and created by the will of W. B. ought to be established and charitable be- the trusts thereof performed and carried into execution, and doth order 1"^^']^°]'^ '^^' and decree the same accordingly ; And his Lordship doth order that ,,•<•' tne miormation as against the deiendant i. B. do stand dismissed out tion to stand of this court with costs, &c. ; And as between the relators and the dismissed other defendants it is ordered and decreed that it be referred to Mr. j"^ '"f °"® • one, &c. to take an account of the rents and profits of the ^ith costs • charity estate accrued since the death of J. B. son of the testator N. an account to B. which have been received by the defendant R. L. and the other be taken of defendants or any of them, or by any other person, &c. the Master to ^^ rents of make all just allowances, &c. and particularly an allowance of, &c. ; j^te *And it is ordered and decreed that what shall be coming on the r *g26 1 balance of the said account be divided into two equal moieties, *], v, j c whereof one moiety is to be paid to or retained by the defendant the the account to Corporation of C. according to the said testator's will, and the other bedividedinto moiety to be paid or retained by the defendants the ministers of, &c. ™oieties and for the charitable purposes devised by the said will concerning the ed by the will' moiety is to bepaid to the minister of those parishes; And it is ordered Schemes to be that any of the relators and the Corporation of the City of C. do produced be- produce before the said Master a scheme or schemes for the appli- fore the Mas- cation of what shall be coming on the balance of the said accounts pUcation^f^' for the moiety of the said rents and profits for the poor inhabitants one moiety of of the said city of C, and also for that moiety of the growing rents such balance, and profits of the said charity estate in such manner as may be most gro^"^ ' ^ beneficial for said poor inhabitants, and the said Master is to state rents ; the same with his opinion thereon ; And the number of the trustees new trustees mentioned in the last conveyance of the said charity estate being tobeappoint- redueed to six, let eighteen other proper persons of the borough of C. appTobation or inhabiting near thereto be appointed with the approbation of the of the Master, Master to be feofi'ees and trustees of said charity estate, and let the relators and defendants be at liberty to propose proper persons before the Master for that purpose ; And when eighteen such persons shall and the survi- be appointed by the said Master, let defendants, the surviving trus- ving trustees tees, convey the said charity estate to the said eighteen persons and ^°,a'i-it"^^tat^ their heirs to and upon the charitable uses and trusts declared in the to them to the said schedule annexed to ; And let the Master settle the con- charitable veyances in case the parties differ about the same. "^®s- VI. Another form of a decree directing the appointment of new trus- tees of a charity estate jointly with the surviving trustees. And it being admitted that the trustees of the said charity were "reduced to three, it was ordered that nine proper persons should be 826 DECREES AND DECRETAL ORDERS. appointed with the approbation of the said Master to complete the said number of twelve, and when such persons should be appointed, the three remaining trustees should with the approbation of the Master make conveyance of the said charity estate to the use of themselves and the new trustees so to be appointed, subject to the same charitable uses and trusts. VII. Decree on a hill hy creditors against an executrix. Whereupon, &c. his Honor was pleased to order and decree that it should be referred to Mr. S. one of the Masters of this honorable court, to take an account of what was due to the plaintiffs and to [ *827 ] *a]l other the creditors of the said testator A. I. and of his funeral expenses, and to compute interest on such of his debts as carried interest after the rate of interest they respectively carried; and the said Master was to cause an advertisement to be published in the London Gazette and such other public papers as he should think proper, for the creditors of the said testator to come in before him and prove their debts, and he was to fix a peremptory day for that purpose ; and such of them who should not come in and prove their debts by the time so to be limited were to be excluded the benefit of the said decree, but such persons not parties to the said suit who should come in before the said Master to prove their debts, were, before they should be admitted creditors, to contribute to the plain- tiffs their proportion of the expense of the said suit to be settled by the said Master ; And it was ordered that the said Master should also take an acct>unt of the said testator's personal estate come to the hands of the said C. I. his executrix, or to the hands of any other person or persons by her order or for her use, and the said testator's personal estate was to be applied in payment of his debts and funeral expenses in a course of administration ; and for the better taking of the said accounts, &c. [usual directions given."] VIII. Part of an order directing the delivery of deeds and attested copies, and the execution of deeds of covenant for the production of deeds. Let such of the title-deeds and writings as relate solely to the estate comprised in lot , and also such as relate to the same estate j.ointly with other estates of less value, be delivered to , he submitting to produce the last-mentioned deeds and writings on necessary occasions and to enter into covenants for that purpose and to give attested copies thereof if required at the expense of the party requiring the same; and as to such of the title-deeds and writings as relate to the estate comprised in the said lot jointly DECREES AND DECRETAL ORDERS. S27 with other estates of greater value, he is to have attested copies if required at the expense of the estates, and the persons entitled to such estates are to execute to him the like deed or deeds of cove- nant to produce the same on necessary occasions ; and in case any dispute shall arise between the parties touching the copies of any particular deeds or writings relating to the title, the Master is to settle the same. IX. Decree for dower out of freehold and copyhold lands. His Lordship doth order that it be referred to the Master to in- Inquiry en- quire what freehold lands the said S. M. died seised of wherein the rectedofwhat *plaintiff B. M. is dowable, and also to inquire what copyhold or [ *828 j customary lands the said S. M. died seised of wherein plaintiff B. M. freehold and is entitled to dower or any other estate by the custom of the manor f Py'i°l'i wherein the said copyhold or customary lands or any of them do lie; eddied seised- And that the said Master do assign to the plaintiff B. M. her dower Master to as- in such freehold lands and tenements, and also her dower and sign plaintiff widow's estate in such customary or copyhold lands and tenements, ^^^ f°^h^]T and the said Master is to assign and set out particular lands and and her wid- tenements for that purpose ; And after the said lands and tenements ow's estate in shall be set out and ascertained, it is ordered that the defendant do tte copyhold deliver possession to plaintiff B. M. of the lands and tenements that get out the shall be so set out and ascertained for the said dower or widow's particular estate of plaintiff B. M., and the tenants thereof are to attorn and ^^^^h pay their rents to the said plaintiff B. M. ; And it is ordered and ^"^^ "^'^^'^ s^' decreed that the Master do take an account of the rents and profits ";" ^ fhereofto of the said freehold and copyhold or customary lands and tenements be delivered to whereof the said S. M. died seised, accrued since the death of the ^^^ plaintiff, said S. M., which have been received by the said defendant, or by ^°? ''^^ *f °' ,_! 11- 1 CI- » 1 1 1-1 ants to attorn ; any other person by his order or tor his use; And that one third- ^^ account to part of what shall be coming on said account of the rents and profits betaken of the of such freehold lands and tenements is to be paid to plaintiff B. M. "'e^ts of the by the said defendant in respect of her dower out of such lands and comhold^es- tenements, and that such part of what shall be coming on said account tates accrued of rents and profits of the said copyhold or customary lands and tene- since the ments as the said plaintiff B. M. shall appear to be entitled to in re- '^falntiffVlni's- spect of her said dower or other widow's estate in such copyhold or band, and one cutomary lands and tenements, is to be paid to the said plaintiff B. M. third part of by the said defendant ; And for the better taking; the said account what shall be • • . loiinci clu6 to and discovery of the matters aforesaid the said defendant is to pro- ^e paid to the duce before the said Master upon oath all deeds writings papers and plaintiff by the books of account in his custody or power relating to the matters in defendant; question, and both sides are to be examined upon interrogatories as Defendant to the said Master shall direct, and the said Master is to make unto deeds, &c. both sides all just allowances; And it is ordered that the said de- Master to fendant do pay unto the plaintiff B. M. her costs of this suit to this make all just allowances ; make a separate report; And his Lordship doth reserve the con- pay^^ha plain- time to be taxed by the said Master, of which the said Master is to •' .... 1 . Defendant to 828 DECREES AND DECRETAL ORDERS. tiff her costs sideration of subsequent costs as between the plaintiff B. M. and de- np to the fendant until the Master shall have made his report ; And it being s^ b"°^ ' declared by the counsel for the plaintiff that they do intend to con- costrresCTv- trovert the probate of the will of the said S. M. insisted on by the ed. said defendant in the Ecclesiastical Court, his Lordship doth reserve Plaintiff in- liberty to any of the parties to apply to the court for further direc- tendmg to ^jg^g jjj respect of any other demands made by the bill in respect deceased's either to the real or personal estate of the said S. M. as occasion will, further shall require. directions re- served. [ *829 J *X. Decree for foreclosure. His Lordship doth order and decree that it be referred to Mr. E. one, &c. to see what is due to the plaintiff for principal and interest on his mortgage and to tax him his costs of this suit, and the defen- dant is to pay unto the plaintiff what shall be reported due to him for such principal interest and costs within after the said Mas- ter shall have made his report, at such time and place as the said Mas- ter shall appoint, and thereupon the said plaintiff is to reconvey the said mortgaged premises free and clear of all incumbrances done by him or any person claiming from by or under him, and to deliver up upon oath unto the defendant or to whom he shall appoint, all deeds and writings in his custody or power relating thereto ; But in de- fault of the said defendant paying unto the said plaintiff such principal interest and costs as aforesaid by the time aforesaid, the said defen- dant is from thenceforth to stand absolutely debarred and foreclosed of and from all equity of redemption of in and to the said mortgaged premises. XI. Minutes of a decree hy consent, directing the plaintiff to con- firm the defendant's jointure in the settled estates, and when con- firmed, the defendant to produce all deeds in her possession or power relating thereto. And the plaintiff Sir W. A. now offering to confirm the jointure of the defendant C. A. in the several estates settled upon her in join- ture by the deeds dated, &c.. Decree that plaintiff Sir W. A. do con- firm the jointure of said defendant C. A. in all the said estates as the Master shall direct ; and let the Master settle the deeds or as- surances for the confirmation of such jointure in case the parties differ about the same ; And after such jointure shall be confirmed as aforesaid, let defendant C. A. produce before the said Master upon oath all deeds and writings in her custody or power relating to the several estates comprised in the settlement dated, &c. ; and reserve the consideration of all further directions until after the deeds and writings shall be produced. DEGREES AND DECRETAL ORDERS. 829 XII. Minutes of a decree declaring the plaintiff to he entitled to a jointure, and directing the defendant to convey to her the lands to be set out hy the Master. Declare that plaintiff is entitled in equity to have a jointure of -I. a year made good to her out of the estate in question accord- ing to the settlement, &c. ; and therefore refer it to the master to Reference to set out and allot so much of the lands and premises comprised in the ^^^ ^u'and" said settlement of, &c. as shall amount to and not exceed the value ^f aufficient of 1 a-year, subject to taxes and repairs, for plaintiff's *jointure value, for her life ; And let defendant M. H. settle and convey such lands [ *830 J and premises so to be set out and allotted as aforesaid to plaintiff defendant to for her life for her jointure by such conveyances and assurances as executeproper the said Master shall think fit, free from all incumbrances done by conveyances, defendant M. H., and let all proper parties join in such conveyances as the said Master shall direct : And let defendant M. H. deliver and delirer possession to plaintiff of the lands and premises which shall be so possession of 11 ,, 1 1 ,-11 Aii.,1 !• .-jr the lands to be allotted and set out with the appurtenances ; And let the plamtitt ^^^ ^^^^ enjoy the same for her life against defendant M. H. and all persons claiming under him or E. H. her late husband deceased, and let all deeds and writings relating to the estate in question be produced before the Master upon oath. *XIII. Decree directing the execution of several leases ; — accounts to he taken of principal and interest due on several mortgages, — and also of the arrears of rents in respect of different parts of the p)remises in question according to certain drafts of leases and agreements between the parties, with a direction to the Master to set an occupation rent on other parts of the premises, and to as- certain what is due in respect thereof ; a set-off directed as between the amount of the account of rent to he found due from one de- fendant, and the amount of principal and interest to he found due on her mortgage ; the hill dismissed as to certain defendants with costs ; there having been several former hearings which proved fruitless, special directions given as to the costs of them. At the Rolls. Master of the Rolls. Monday the 26th day of November, &c. 1827. Between S. Page Plaintiff, and J. Brown, J. Harris, &c. Defendants, By original bill ; and Between S. Page Plaintiff, and P. F. Page .... Defendant, By supplemental bill. These causes coming on the 12th, 13th, 15th, and 19th days of 830 DECREES AND DECRETAL ORDERS. Original bill November 1827 to be heard and debated, &c. the substance of the praying tbat plaintiff's bill appeared to be, That, &c. [after stating the sub- may'^be"taken ^^'^''^'^^ "f the hill, the decree set forth the prayer of the hill as fol- ofwhatisdue lows :'] That an account may be taken of what is now due to to the plain- the plaintiff under and by virtue of the aforesaid agreements or agreen^ent" Otherwise ; And that the said agreement may be specifically per- may be per- formed and carried into execution, and that a lease of the said pre- formed, and a mises thereby agreed to be demised to the plaintiff may be executed 'rthe^^iarn-*^ ^^ ^^^ necessary parties, the plaintiff being ready and willing to do tiff; all things to be done therein on his part and behalf; And that an r *831 1 "'a-ccount may be taken of what is due from the said Mary Linwood that an ao- ^° respect of the said sum of lOOOZ. so agreed to be paid to the count may be plaintiff with interest thereon from the time the same ought to have taken of what been paid, and also in respect of the said annual rent of 2501. with defendanUn*' ^'^^^rest from the times such annual sums ought respectively to have respect of a ^^en paid, and that what shall be so found to be due may be paid sum of 1000?. to the plaintiff, and that the plaintiff may be declared to have a and interest jien upon the Said Mary Linwood's estate and interest in the said pre- also in respect ™ises for the payment thereof, and that the same may be raised and of the rent paid thereout accordingly in reduction of the plaintiff's said demand ; agreed to be And that an account may be also taken of what is now due in res- and^interest P®°* °^ *^^ ^^^^ *^° annual sums of 2001. and 200Z. so agreed to be thereon, and paid by the Said T. Willows together with interest thereon from the to have a lien times the Same ought respectively to have been paid, and that the the'p7em^se's°' P^*'"*'^ ^^J ^^ declared to have a lien upon all the estate and in- fer the terest of and in the said premises which belonged to the said Thomas amount; Willows for payment of the amount of what shall be so found to that an ac- be due, together with so much of the plaintiff's demands as shall re- ount ™^y^^e uiain unpaid by the means aforesaid, and that the same may be raised is due in re- ^"^^ P^'d thereout to the plaintiff accordingly, and that the plaintiff spect of two may have the full benefit of the aforesaid securities for the pay- annual sums ment of what is so due to him ; And if necessary for that purpose, paid\y an-^ that such of the rents and profits of the said premises, if any, as other defend- are not applicable to the payment of the plaintiff's aforesaid demands antwith inter- may be applied in discharging all such incumbrances upon the said and*to"^have a P^'emises as have priority to the plaintiff's aforesaid demands ; And lien on his in- that the mortgage debt due to the said John Broom and Herbert terest in the Broom may be considered as satisfied to the amount of the rents and premises ; profits of the Said premises received by them and of the occupation sarythattuch ^^^^^ of such parts of the Said premises as have been occupied by of the rents them, and that accounts of such rents and profits and occupation not applicable value may be taken accordingly ; and that all other necessary direc- ^f ^''laMff^s"* *'°'^® ™^y ^® given for the purpose of paying or securing to the plain- demands may tiff the payment of what is so due to him out of the said premises ; be applied in And that some proper person may be appointed receiver of the said discharge of premises, and particularly of such parts thereof as were so agreed brances^"™ to be demised to the plaintiff for securing his aforesaid demands ; that a mort- -A-nd that the rents and profits thereof may be applied according to gage debt due the provisions of such agreements, and to be relieved is the scope of to two other ^j^g {jjn . ["^^^ ^y^g^ stating the substance of the defendants' answers, may be consi- ^he decree proceeded thus ;] That T. Willows being dead, the plain- DECREES AND DHOKETAL OKDERS. 831 tiff though it advisable to institute a suit in the Prerogative Court "^ered as satis- for the purpose of procuring administration of the estate and effects amount of of the said T. W., and accordingly letters of administration of the es- rent received tate and effects of the said T. W. were duly granted by such court by them and to P. F. P., but limited to the purpose only of attending supplying "fo^^^aTuTof" substantiating and confirming the proceedings already had or which smjjj part of might be thereafter had in the aforesaid cause or suit or in any the premises other cause or suit which might thereafter be commenced in this ^? '^^?^ "'^^"' or any other court between the aforesaid parties or any other parties ^nd to^ave™' touching or concerning the aforesaid premises, or until a *final decree an account ta- should be had and made therein, and the said decree carried into ex- ^^'"- tiifreof ecution, and the execution thereof finally completed ; And the plain- ^''r°*QQO^n tiff thereupon filed the supplemental bill in this court against the L "^'^ J said defendant P. F. P., stating the several matters aforesaid, and and for the thereby praying that the plaintiff may have the same relief against ^f ^ receiver. the said P. F. P. as if he had been originally a party defendant Recital in the to the said original bill ; Whereto the counsel for the defendant decree that a, P. F. P. alleged that he by his answer saith he admits, &c., [admit- jiefendant be- ting the letters of administration granted, the proceedings had in the tefs of ad'min- original cause, and claiming such interest as he might appear to be istration limi- entitled to as such personal representative.'] Whereupon and upon tedithe mat- debate of the matters and hearing an exhibit, &c. &c. read, and what tbn were^^' was alleged by counsel on both sides, his Honor did order that this granted to the cause should stand for judgment ; And this cause standing this present defendant in day in his Honor's paper of causes for judgment accordingly, in the pre- ^gnta? suit sence of counsel learned on both sides, and the defendants J. B. and ^^^ ^^^^ ^j^^ R. B. by their counsel at the bar now consenting that the four several piaintififthere- exhibits marked, &c. b&ing drafts of leases in the possession of the de- "pon filed a fendant M. L. and proved by her in this cause shall be considered by biu^praTng^ this court as proved by the plaintiff against the said defendants J. B. to have the and R. B., His Honor doth declare that the plaintiff is entitled to same relief have the lease to him, the two several leases from him, and the under- ^S^^'^^^ f^^ lease from the defendant Mary Linwood to him executed by all pro- as if originally per parties according to the drafts prepared by Mr. White in the year a party. 1809 and approved of on the part of the plaintiff, with this difference. Decree.— Lea- that the lease thereby proposed to have been made by the plaintiff to sesandunder- Thomas Willows in the bill named is to be made to John Broom, executed ac- H. Broom, and John Harris or those who represent them who by cording to the virtue of the agreement in the pleadings mentioned as between the ^J'^^'s origin- said T. Willows and the said J. B., H. B. and J. H. are entitled there- ^j,J ^ap^proved to, and with this difference also, that if the mortgage to the defend- of, with cer- ant John Broom and the late Herbert Broom shall appear to be tfin '^^aria- satisfied, the plaintiff Samuel Page is entitled to have the lease grant- ■nhL^'decree ; ed to him for the additional term of fifty years at the rent of 40s. per annum; And it is ordered that all proper parties do execute Upon the ex- the same and counterparts thereof; And it is further ordered that as fg'^^ge"" the*'^^ soon as such lease shall have been executed to the said plaintiff as plaintiff he to aforesaid, the said plaintiff do forthwith grant and execute to the said execute aiease defendant M. Linwood a demise of the said premises agreed to be let *° defendant to her according to the lease prepared by the said Mr. White, to hold j^'in portions for forty-seven years and three quarters wanting ten days from the of the premis- 832 DECREES AND DECRETAL ORDERS. es according 25tli of December 1807, at the annual rent of 250Z. to be paid illA ™'^' 1 and payable according to the said agreement of the 21st November lease original- ^„t\o a i i • tt i i i i i ^ ^ ^ • ly prepared, loUo ; And his Honor doth declare that upon such lease being ex- and thereupon ecuted by the said plaintiff, the plaintiff will be entitled to receive Sitied to r^e^ from the said defendant M. Linwood the sum of lOOOZ. agreed by ceive from her t^® ^^^^ agreements of the 27th June 1806 and 21st November asumofioooz. 1808 to be paid to him, with interest on the same after the rate of with arrears 4 per cent, per annum, according to the instalments and from thereon ■ ^^^ respective times when such instalments were to have been paid r *833 1 *according to the said agreement of 21st November 1808 and the An a t draft of the said lease prepared by the said Mr. White ; And it is be taken as Ordered that it be referred to the Master in rotation to take an ac- principai and count of what is due for principal and interest in respect of the said interest due in sum of ,£1000 as aforesaid; And it is ordered that the said Master 1000? also an *^° ^^®° ^*^® *^ account of what is due from the said defendant Mary account of the Linwood to the plaintiff in respect of the rent of £250 per annum arrears of the from the 25th day of December 1807, being the time from which doe from de- ^^'^^ ^^^^ ^^^ reserved, &c. &c. payable in and by the said draft fendant M. L., lease prepared by Mr. White as aforesaid ; and the said Master in the Master to taking such last-mentioned account is to make unto the said M. L. lust aU '^'^ ^^^ ^^^ j*^®* allowances for and in respect of all or any rates taxes assess- ces in respect Dients and Other proper disbursements paid laid out assessed and of rates, taxes, made upon or by her; And it is ordered that the said Master do take *■"• an account of what is due to the said M. L. for principal and interest An account to j^ respect of her mortgage in the pleadings mentioned, and also an principal and account of the costs charges and expenses which she has paid been interest due to put to Or sustained in certain suits entitled "Browning against her in respect Willows," and " Broom against Linwood," or in any other suit or gaffe'''and"of ^uits brought against them as mortgagee or in any wise incidental to costs' sustain- or respecting the said inortgage ; and it being alleged by the counsel ed by her in for the plaintiff and the said M. L. that it has been agreed that the orin'refatfo ^^^^ plaintiff shall become the assignee of the said mortgage. It is to her mort- Ordered the difference between the amount of the account of the gage; principal interest and costs of the mortgage and the amount of the The plaintiff account of the rent and of the before-mentioned sum of £1000 and avmg agreed interest after making such allowances thereout as aforesaid above to become as- -.. -. , , °, . -, . , .,,..^ -, -iiit signee of the directed to be taken, be paid by the said plaintiff to the said Mary rnortgage, the L. or be paid by the said M. L. to the plaintiff according to the re- difference of g^,]^; qJ ^^q balance between such accounts, and if it shall be found directed to be ^^^^ ^^^ ^^^^ mortgage debt with interest and costs aforesaid is satis- taken as be- fied, or upon the balance of such mortgage account being paid to the tweeuhimand gaid M. L. by the plaintiff and such underlease being executed m\ to be^" *° ^^^ ^^^^ ^" •'-'• % *'^® plaintiff as hereinbefore directed, It i& paid accord- Ordered that the said M. L. do thereupon transfer and assign her ingtothere- gaid mortgage unto the said plaintiff S. P. or as he shall direct, baiince*b^e- ^^^ ^^^ proper parties are to join in such transfer and assignment, tween such which is to be settled by the said Master in case the parties differ accounts ; and about the Same ; And it is ordered that the said Master do tax the L^^to^trTn 'f ^^^^ ^" ^' ^^^ °°®*'® °^ *^^® ®'^^*' ^^^ *^^ ^^^ °°®*^ charges and expenses her mortgage '^^ ^^^ different hearings in this suit or incidental thereto as between solicitor and client ; And it is ordered that the said plaintiff do pay DECREES AND DECRETAL ORDERS. 833 the same to the said M. L. ; And it is ordered that thereupon and to the plain- upon the said M. L.'s doing what she is hereinbefore directed to do, ''*i the plaintiff's bill do stand dismissed out of this court as against the The Master iS said defendant M. L.; And his Honor doth reserve the consideration the suit and as between the said plaintiff and the other defendants by whom so incidental to much of the costs hereby directed to be in the first place allowed and *e different paid by the plaintiff to the defendant M. L. as is or shall be properly tetwe"? soli- costs as between party and party in this cause, shall be ultimately citor and cli- borne, *until after the said Master shall have made his report ; And [ *834 1 his Honor doth declare that the plaintiff ought to be considered as ^^t ti^g same having a charge upon the several premises in the pleadings mentioned to be paid by for the purpose of supplying the deficiency, if any, of the rent of ,£200 plaintiff and a-year to be reserved to him by the lease before mentioned, which was tuTto'be dis- agreed to be granted to Thomas Willows, and also for the payment missed as of an additional sum of £200 per annum during the term of forty- against her; eight years and three quarters of a year wanting ten days mentioned '^^^ consider- in the deed-poll of the 26th November 1807, or until such time as by wh"ch the plaintiff's demands are satisfied, and to have a proper deed exe- part of the cuted for that purpose, but such charge is not to take effect until it costs above shall appear that the mortgage (for £3000) which was held by the ^'^.^f^'^ *°>^ defendant John Broom and the deceased Herbert Broom is satisfied, tiff, as shall be but in case it shall appear that such last-mentioned mortgage is satis- properly costs fied, then It is ordered that the said Master do settle and approve of ^^ ^etween a proper deed for securing such two rents-charge accordingly ; And Lrty in the in case it shall appear such last-mentioned mortgage is satisfied, then cause, shall be it is ordered that the said Master do compute interest upon the sum ultimately of £13,290 Is. 6d. from the 25th day of March 1809 according to the p°™Jji^ ^^ acknowledgment of the said Thomas Willows dated the 19th day of ciared to be' July 1810, after the rate of £5 per cent, per annum, and according entitled to a to the agreement of the 27th June 1806 ; but in case it shall appear charge for that such mortgage as last aforesaid is not satisfied, then it is ordered ^"gjie^gy Jf * that such last-mentioned account be postponed until the further order two yearly of the court ; And it is ordered that the said Master do take an ac- sums of 2001. count of what is due from the defendants J. Broom and John Harris *° '^^^^^'^ ^^^ or either of them or the estate of Herbert Broom deceased to the until his 'de- plaintiff in respect of the rent of £200 a-year from the 25th December mandsaresat- 1807 according to the draft prepared by Mr. White, and according to i^s^'^i the said agreement of the 27th June 1806, up to the date of the report ^Qt'^to^'lkT to be made by the said Master; And it is ordered that the said Master effect until a do also take an account of what is due from the defendant J. Broom prior mort- and John Harris or either of them or the estate of Herbert Broom s^s^^ ]^ ^^tis- deceased in respect of the rents reserved by the lease of the 2d day g^j^g gj^^n ap- of August 1806, and the agreement of the 30th day of June 1808, peartobesat- and in respect of any other rents of the premises or any part thereof isfied, the received by them or any or either of them or by any other person tie Indeed for' or persons by their or any or either of their order, or for their or securing the any or either of their use ; And it is ordered that the said Master two rents- do set an occupation rent on such part (if any) of the premises charge, and to not included in such lease or agreement of which they or any or terest upon either of them shall have had a valuable occupation, or which the amount of would have produced rent but for their or his wilful default, and *'^® plaintiff's 834 DECREES ANB DBCKBTAL OKDBRS. demand ac- ascertain what is due in respect thereof; And it is ordered that tahi instru-^"^' '^^^^ ^^ ^^^^^ fi"^*! ^^^ Oil ^^'^^ Several accounts or any of them ments ; but if be set against what he shall find due in respect of the principal not satisfied, and interest of the mortgage for £3000 which was vested in the mettio^'ned ac- "defendant J. Broom and the said H. Broom deceased ; And it is count to be Ordered that the said Master do ascertain and state whether after postponed nn- so doing any thing and what remains due upon such mortgage, or til further or- *y^]ien by such means the same was paid off; And it is ordered that [ o35 ] be do for such purpose take the account of principal and interest on d«r; an ac- such mortgage ; And it is ordered that the Master do take an account taken of all °^ ^^^ rents and profits of the said premises or any of them received rent due to the hy the defendant E. Rosser or by his order or for his use under the plaintiff from deed of the 20th day of September 1806 ; And his Honor doth re- ant^"^ '^ d^^th" ^^^^'^ ^^^ question whether he is liable for any and what further por- estate of a de- t'oii of the rents and profits of the said premises ; And it is ordered ceased party, that the Master do also take an account of what rents and profits of according to ^jjg premises or any of them were received by the defendant R. ments, and in I^osser and the deceased R. S. White jointly or by their order or for respect of any their use, and what has become thereof; And for the better taking other rents re- of tbe Said accounts and discovery of the matters aforesaid, the par- or'for their*™ ^'^^ ^^^ ^° ^^ examined upon interrogatories, and to produce on use the Master Oath before the said Master all deeds books papers and writings in to set an oc- their custody or power relating thereto as the said Master shall direct, upon'such^*"^' ^^° ''^ taking of the said accounts is to make unto the parties all part of the just allowances, and the said Master is to be at liberty to make a premises not separate report or reports as to any of the matters hereby referred included in a ^^ j^jjjj ^^^^ ^ State any special circumstances at the request of either agreement of 0^ ^he parties as he shall think fit ; And it is ordered that the plain- whichsaid de- tiff do pay unto the defendants E. Willows, Sarah M. Sankey, John fendantshada Hanbury, and Daniel Sutton their costs of this suit to be taxed by pation or ' *^^ ^^^^ Master in case the parties differ about the same, including which would the costs of all the former hearings ; And it is ordered that thereupon have produced the plaintiff's bill do stand dismissed out of this court as against the their wilful^ ^^^^ ^'^^^ ^^^^ named defendants ; And his Honor doth reserve the default the Consideration of all parties' costs so far as not hereinbefore provided amount to be for, and also the consideration of all further directions and of the ^°"?''„^"® °?„ subsequent costs of this suit until after the said Master shall have such accounts il. , aii-xx iini i i i- to be set off made nis general report ; And his Honor doth declare that the plam- against the tiff in his costs is not to be allowed the costs of more than one hear- amount of ;jj„ g^^^ g^^y gf ^jjg parties are to be at liberty to apply to this court principal and ° , i H i ■ rr ./ interest to be ^^ there shall be occasion. found due in respect of a mortgage vested in the defendants ; An account to be taken of rent received by another defendant, the question as to his liability for any further rent reserved; The parties to be examined upon interrogatories, and to produce all deeds, papers, &c., the Master to make all just allowances, and to be at liberty to make separate reports, and to state special circumstances. Directions as to costs. DjaCKBEB AJND DKUBUTAL ORDERS. 835 *XIV. Decree declaring the legitimacy of the plaintiff, as the eldest surviving son of his father, as established hy the verdict of a jury on the trial of an issue ; also declaring certain agreements entered into hy the plaintiff with a younger brother to be void, {the grounds on which such decree was founded being inserted in the decree,) and directing a reference to the Master to take an account of moneys paid by the plaintiff' to the defendant, and to compute interest thereon, the amount to be paid into the bank subject to further order; decree made without prejudice to any claims which the defendant might establish against the plaintiff'. {Gordon v. Gfordon, 3 Swanst. 400, 478.) The decree stating that the cause now stood for judgment, and reciting the pleadings, and that the parties proceeded to a trial of the issue on the 27th February 1818, when the jury found that the plaintifi" was and is the legitimate son of Colonel Harry Gordon, *proceeds thus : — " His lordship doth declare that it is established by r *836 1 the verdict found in this matter that the plaintiff is the legitimate son of his father, and his Lordship doth declare that Peter Gordon his elder brother must also have been legitimate, and consequently that the defendant James Gordon was not the heir at law of Harry Gordon the elder, nor of the said Peter Gordon, and farther that it appears that if Peter Gordon was not legitimate, yet if having survived Etarry Gordon the elder he became entitled in fee in law or equity to the estates in question by virtue of his father's will mentioned in the agreement of 1790 to bear date the 5th day of August 1787, the de- fendant James Gordon could not be entitled at his father's death or at the death of Peter Gordon to the estates of Harry Gordon the father as his heir at law, or have any well-founded claims to the said estates as such heir at law ; that nevertheless the agreement of 1790 purports to be made between the plaintiff Harry Gordon and the defendant James Gordon claiming to be the heir at law of the said testator Harry Gordon the elder, and as such, making certain claims upon the estates therein mentioned, over and besides the provisions made for him by the will and codicil of 1776, 1782, and 1787, re- cited in the said agreement of 1790, and which will and codicil are thereby by the said plaintiff and defendant admitted to have been made by the said Harry Gordon the elder ; that it further appears from the recitals of the said agreement of 1790, that if Peter Gordon had been illegitimate and Harry Gordon the younger also illegiti- mate, and if the estates were vested in Peter Gordon by virtue of the said will of 1787, the said James Gordon could not as heir at law of his father or otherwise by his contract or by any other his act authorize or give title to Harry Gordon the younger to enter upon the said estates or empower him effectually to require the mortgagees mentioned in the said agreement to reconvey to him the said Harry Gordon the younger upon payment of what was due to them, or vest in the said Harry Gordon the younger any interest in the said estates, save the said James Gordon's interest as a lega- 0"0 DECREES AiMiJ JJJiiUitiS'i'Ali UJti>JJiilB. tee ; that it also appears that the other agreement of the 4th day of February 1805, as well as the said agreement of 1790, was made between the parties thereto in consequence of the supposed illegiti- macy of the plaintiff negatived by the before-mentioned verdict ; and that the defendant, if the plaintiff was illegitimate, had no title to the lands in America, nor any right for his own behoof to hinder the plaintiff from obtaining possession thereof subject to the charges thereon, in case such lands under the grant thereof were vested in his father, and passed by his father's will to Peter Gordon ; And his Lordship doth declare that if the plaintiff could not be relieved against the said agreements on the mere ground of mistake re- specting his legitimacy, or on the ground that the said agreements were entered into in consequence of mistake and misapprehension respecting such legitimacy, yet that the plaintiff is entitled to be relieved against the same as having been also entered into under a misapprehension and misunderstanding that the said James Gordon the defendant had such right and interest in the said estate as would enable him effectually to give and assure to the plaintiff [ *837 ] *those benefits and interests which, for the considerations mentioned in the said agreements, are contracted or agreed to be given and assured to him by the said James Gordon ; and inasmuch also as it is established by the evidence in the cause, that prior to the enter- ing into the said agreement the defendant James Gordon had been informed and knew that a ceremony of marriage had previously taken place between his father and mother before the birth of the plaintiff (being the marriage which by the aforesaid verdict has been established as a valid marriage), and the said agreement having been entered into with such previous information on his part, and without such information being imparted to the plaintiff, who might, if the said James Gordon had communicated to him that informa- tion, have been able by due inquiry to prove his legitimacy as he has since proved the same after he had discovered that such cere- mony had previously taken place; His Lordship doth therefore de- clare the agreements in the pleadings mentioned, bearing date the 30th day of March, 1790, and the 4th day of February 1»05, to be void, and doth order and direct that the same be delivered up to be cancelled ; And it is further ordered that it be referred to Mr. Dowdeswell to whom this cause stands referred, to take any account of all sums of money paid by the plaintiff to the said defendant James Gordon or to any other person or persons by his order or for his use in respect of the annuity mentioned in the agreement bearing date the 31st day of March 1790, and of the sums of 4600?, and in- terest and 1040Z. in the said agreement also mentioned ; And it is ordered that the said Master do compute interest on the respective sums paid by the plaintiff to the defendant James Gordon from the respective times of paying the same, and for the better taking the said account, &c. ; And it is ordered that what the said Master shall find to be the amount of such sums and interest, be paid into the bank with the privity of the Accountant- General of this court on the credit of this cause, subject to the further order of this court ; And his Lordship doth reserve the consideration of costs, &c. ; And this DECREES AND DECRETAL ORDERS. 837 is to be without prejudice to any claims -which the defendant James Gordon may have or can establish against the plaintiff in respect of the estate or effects of Harry Gordon the elder deceased or Peter Gordon deceased or either of them in any suit or proceedings which he may be advised to institute against him and other proper and necessary parties." — Reg. Lib. A. 1820, fol. 1984. *XV. Decree for sale of an estate and payment of mortgagees and judgment creditors according to their priorities. It was declared that one account should be taken of what was One account due to the defendants the mortgagees for principal and interest on to be taken of their respective mortgages, and to tax them their costs of this suit "^^^^ ^^^ f^^ and at law; And that the Master should take an account of the gees the Mas- rents and profits of the premises comprised in the defendants the ter to tax their Nicholl's mortgage which had been received by the said defendants "^"^'^ m equity *or by their testator or any of them, or by any person by their or _ ^qqo \ either of their order or for their or either of their use, or which L "^° J without their or any of their wilful default might have been re- ^e^tar^^^th" ceived; And that what should be coming on the account of the rents received rents and profits should be deducted out of what should be found or ivhich but due to the said defendants the Nicholl's for principal interest and f°'^i7''^"Vj^" costs ; And the Master was also to take an account of what was due have been re- fer principal and interest to the several judgment creditors who were ceived by cer- parties to the said suit, and also to the several judgment creditors ti^in ™ortga- of the defendant H., and all the said judgment creditors were to- be amount there- at liberty to come before the said Master and prove their judg- of to be de- ments ; And the said Master was to cause an advertisement to -iiatiiti«- ■ t i> certained • Said testator s Will ; And let the Master consider or a proper part certain annul- of the said testator's estate to be set apart to secure the growing ties declared payments of the said annuities, to which the personal estate is to l°f^ a^d^'^th'^"-'^ considered as liable in the first place ; And let the Master state so long as the ^^^ Same unto the court, whereupon such further order shall be annuitants made as shall be just ; And several questions arising in the cause t'h ^-^ h ^h" °^ touching the extent and construction of that clause in the testator's th M t ' ^^^^ whereby he has directed the trustees to entail upon his daughter set apart suffi- ^^^ her issue all his estate and effects after the payment of the cient estate to jointures to his wife and of his annuities and legacies, with such secure the limitation as therein mentioned, declare that the said testator's will ments° th^ ^' '^°* heing executed according to the statute against frauds and per- personai es- juries, the testator's real estate in the county of L. is not comprised tate to be con- in or affected thereby, but is descended to the plaintiff the Countess bleTn the first °^ S. his daughter and heiress at law; But declare that the tes- piace; tator's annuity of 1000?. per annum, which was originally created (2) The executors Garvan and Stoper had renounced probate, and letters of ad- ministration with the will annexed were granted during the minority of the testator's daughter, and for her benefit, to the testator's widow, who had intermarried with F. Bulkeley. DECKEBS AND DECRETAL OEDERS. 851 by grant of King Charles the Second to the Earl of Kinnoul in fee, the real estate and also the surplus of testator's personal estate arising at the time declared to of his death are subject to the power thereby given to his executors ; edto'theTme And declare that the said annuity of lOOOZ. per annum in fee being plaintiff aa capable of being settled and limited to the testator's daughter and heiress at the heirs of her body, the same did by virtue of his will vest in her '^^ ' in equity as a fee-simple conditional, and that she having had issue ofThTbequTst is capable of aliening or settling the same ; And declare that ac- of an annuity cording to the true construction of the said clause in the will, the pf loooz. issu- limitation over of the residue of the testator's personal estate to his Ba^rbrdo°e^s *^ two nephews the defendants B. C. and T. C. is too remote and duties, as vea- void; And declare also that the said annuity of lOOOL per annum ting in her ia subject to make good the annuities and legacies given by the said f^'^gf^'^i ^ testator's will in case his personal estate shall be deficient for that conditional ■ purpose, and also the said real estate in the city of L. are subject the limitation to and affected by the articles dated the 6th of July 1743 entered over to the ne- into upon the plaintiff's marriage ; And declare that the interest pl^ews of the and profits of the surplus of the testator's personal estate over and sonai estate above the 2001. a-year given for the maintenance of the plaintiff declared to be the Countess of S. accrued before her marriage (if any shall be) too remote; did by virtue of the said will go to and belong to the plaintiff the ^^ """^ th°" Countess of S. ; And declare that the articles ought to be performed real estate de- and carried into execution, and decree the same accordingly, and ciared to be let proper settlements conveyances and assurances be executed by subject to the the respective parties to the said articles, so far as the deaths oi ^^^^„o^^^^^' parties will admit thereof, with the approbation of the Master, ex- plaintiffs' cept so far as the said articles relate to any surplus of the testator's m^irriage ; the personal estate existing at the time of his death which shall remain reshiuary per- after payment of his debts funeral expenses annuities and legacies, sonai estate touching which surplus his Lordship doth reserve any directions till ^ft^^ payment after the said account shall be taken *and the Master shall have [ *852 ] made his report ; Let the Master also take an account of the in- of the aiiow- come of the said annuity of lOOOZ. a-year which has been received ^nce for main- by the defendant B. or by any other person by his order or for his ciared to be- use ; And in taking of the said account let the Master make unto long to the the said defendant all just allowances ; And it being admitted by '^^me plaintiff; the said defendant E. that he has in his hands the sum of 6000^. ^Z '^^''TS^ part of the money arising out of that annuity, let the said defendant (.^gg^ ^g [,g E. pay the said sum of 6000Z. into the bank with the privity of the performed; said Accountant-General of this court to be placed to the credit of further direc- this cause, subject to the further order of this court ; And the de- *^°°^ leserved fendant S. W. being the heir at law of her father who was the trustee duary person- of the testator's real estate in the county of L,, desiring to be dis- al estate; charged from the trusts, let her convey the same to a new trustee An account to to be approved by the Master, at the plaintiffs' expense, subject to Retaken of the the trusts and provisions of the said marriage articles; And it being loooT annuity admitted that the defendant Q. entered into security to the Bank received by of England for the benefit of the testator's estate in respect of ""s of the de- certain bank notes burnt in his house, let the said defendant G. b°iance\d^* be indemnified in respect of such security given by him out of the mittedtobein testator's estate ; And let the Master be at liberty to make separate bis hands di- 852 DECKEES AND DECRETAL ORDERS. reeled to be reports as to the account hereby directed against the defendant E., paid into a^jj^ as to the account of what is due to the annuitants for the arrears '. of their several annuities, and as to any fund to be set apart for of^a' decreased securing the said annuities ; [And for the better clearing of the trustee desir- several accounts before directed, the usual directions given for pro- iug to be dis- duction of books and papers, and examination of the parties ; the ^^f'^seddireo- pgg^g ^f ^Yl parties out of the testator's estate; The consideration the real estate ^^ Subsequent costs and of all further directions, and particularly as to to a new tras- any question that may arise between the interest which the Countess *^^ ' of S. may take and the interest which any child or children she hath the executor \^^^ qj. ^^j ]ja,ye jnay take in the surplus of the said testator's per- nifiedthebank sonal estate reserved until after the Master shall have made his re- against cer- port ; Liberty to any of the parties to apply, &c.] tain notes burnt, directed to be inderaniiied out of the testator's estate; The Master to make separate reports; all parties to produce books, &c. costs to be paid out of the estate ; subsequent costs, and all further directions reserved, *XXXVII. Decree establishing a will with several codicils thereto, and directing the trusts to he carried into execution, except as to a direction in the will for the accumulation of the interest and divi- dends of the residuary personal estate and the rents of the real estate during the minority of any person or persons entitled thereto, which is declared to he too remote and void ; a grandson of the testator, an infant, declared to he entitled to the devised estates for life, with remainder to his first and other sons in tail general ; directions given as to an allowance for his maintenance; the tes- tator's widow having made her election to take under the marriage settlement, declared to he harred of her dower ; a trustee declared to he entitled to certain leasehold premises for his own henefit, and special directions given as to prospective and retrospective allow- ance to he made to him for his trouble. Marshall v. Holloway, 2 Swanst. 432, 450.) April 22, 1820.— His lordship doth declare that the will of Tho- [ *853 ] mas *Holloway the testator, &c. dated, &c. and the three several codicils of the testator dated, &c. are respectively well executed and proved, and that the trusts thereof ought to be carried into execu- tion, except in so far as the said will directs the laying out and in- vesting the dividends interest and annual proceeds of the stocks and securities in and by the said will directed to be purchased with the surplus of the said testator's personal estate after the payment of his debts funeral and testamentary expenses and legacies, and the rest of his personal estate, and also the clear yearly rents and profits of his real estates from time to time, and when and so often and during all such .times as any person or persons beneficially interested in or entitled to his real or personal estates under the trusts therein- after declared thereof should be under the age of twenty-one years, and the adding all such investments to his personal estate in order DECREES AND DECRETAL ORDERS. 853 to accumulate tlie same ; And his lordship doth declare that such direction to lay out and accumulate the said rents and profits interest and dividends is too remote and void in law; And his Lordship doth declare that the defendant the infant H. F. K. Martelli is en- titled in possession to the rents and profits of the said testator's free- hold and copyhold and leasehold estates, and to the dividends interest and annual proceeds of his personal estate and effects for and during the term of his natural life, with remainder to the first and other sons of his body lawfully to be begotten successively, according to seniority of age, and the heirs of their bodies respectively, with such remain- ders over as in the said will and codicils in that behalf respectively contained. — The decree after the usual directions for an account of the personal estate of the testator and the rents and profits of his real estates received by the plaintiffs, proceeded thus : — It appearing that the defendant Horatio Martelli the father of the ^"^Tal'^to^'' said defendants the infants, is dead, it is ordered that the said Master the persons by do inquire and state to the court by whom the said defendant the whom the in- infant H. P. K. Martelli has been maintained since the decease f^"* ^^^ *'eeu of the said testator, and what sums of money have been paid in re- ^^J." ^^^^ ^es- spect thereof and by whom, and what will be proper to be allowed tator's death, for his maintenance and education for the time past, and to whom, ti^e sums paid and also what will be proper to be allowed for his maintenance and ?,f„^^^f ""'j !• 1 cici^i- 1 thereoi, ana education, and out or what lund tor the time to come, and to whom, what allow- and in making such allowance the said Master is to have regard to ance is proper the situation and circumstances of the other defendants the younger !? ''^t™^'^^ ^°j brothers and sisters of the said H. F. K. Martelli, and the said and to come Master is to be at liberty to make separate report, &c. ; And the the Master to defendant Ann HoUoway having elected to take the provision made "^^^^ ^ ^^P^" for her by the indenture of settlement in the pleadings in this cause i^^^j^^ ^^??^ ' mentioned to bear date the 17th day of November 1798, in lieu of her havingeiected dower thirds and free-bench in and out of the said testator's freehold to take under and copyhold estates, his Lordship doth declare that the said defend- ^^^ ^,^"^^', ant Ann HoUoway is barred'^of all claim in respect of such dower or ed to'be bar- thirds and free-bench, and doth order that the said defendant do exe- red of her cute a proper and sufBcient ^release of such claims, such release to dower; be settled by the said Master ; And it is ordered that all the costs [ *854 j charges and expenses attending the making and executing thereof be A proper re- paid and discharged by the said plaintifl" out of the personal estate ^^^^^^u^u^' and effects of the said testator, &c. ; And his Lordship doth declare the costs'*' ^'^' that the said defendant Faithful Croft is entitled to the leasehold thereof to be house and premises in Chancery Lane given and bequeathed to him paid out of the in and by the codicil of the said testator bearing date the 20th day of fatT""^ January 1816, for the remainder of the term of years now to come r^j^g defendant therein, from the death of the said testator, for his own use and F. 0. a trustee benefit ; And it being alleged by the said plaintiffs the trustees that declared to be the nature and circumstances of the estate of the said testator require ^V leasehold the application of a great proportion of time by and on the part of premises. the said trustees for the due execution of the trusts of his said will in regard to his estate, and that they cannot undertake to continue the execution of the trusts without the aid and assistance of the said Faithful Croft as a co-trustee, he having during the life of the said 854 DECREES AND DECRETAL ORDERS. testator had the principal and confidential management thereof, and being better acquainted therewith than any other person, and there- fore it will be for the benefit of the said testator's estate that he should continue to be a trustee thereof, and the said Faithful Croft alleging that due attention to the afi"airs and concerns of the said testator will require so much of his time and attention as will be The Master di- greatly prejudicial to his other pursuits and concerns in business, and rected to settle therefore that he would not have undertaken to act therein but under an allowance ^^^ assurance that an application would be made to this court to au- to be made to . rr . the defendant thorize the allowance and payment ot a reasonable compensation out F. c. for his of the Said testator's estate for such his labor and time, and that he trouble in the gannot continue to act therein without such reasonable allowance the trusts for being made to him ; It is ordered that it be referred to the Master the time past, to settle a reasonable allowance to be made to the said Faithful Croft ^""^ *° '"I'^'r J out of the said testator's estate for his time pains and trouble in the be for the ben- execution of the said trusts for the time past; and in settling such efit of the es- allowance the said Master is to have regard to the legacy of 200?. tate that he given and bequeathed to the said Faithful Croft by the said will of tinued a\rus- *^® ^^^^ testator on the execution of the trusts thereby reposed in tee and receive him ; And it is ordered that the said Master do inquire whether it compensa- ^^i\[ be for the benefit of the said testator's estate that the said Faith- *TO°'er^the^ ful Croft should continue to be a trustee under the said will and to Master' to set- receive a compensation for the future employment of his time and tie an allow- trouble; and in case the said Master shall be of opinion that it will ^"T \° ^him ^® ^°^ ^^^ benefit of the said testator's estate that the said Faithful and the Master Croft should be continued a trustee, then the said Master is to settle tomakeasep- reasonable allowance to be made to the said Faithful Croft therein, arate report, j^jj^ j^e Said Master is to be at liberty to make a separate report, &c. ; The costs of j^jj(j j^ jg ordered that the said Master do tax all parties their he texed^and costs, &c. ; And it is Ordered that the same when taxed be paid to paid out of the them by the said plaintiffs as executors out of the personal estate and personal es- effects of the said testator, &c.— Reg. Lib. B. 1819, fol. 777, 780. tate. ' ° . ' ' [ *855 ] *XXXVIII. Decree establishing a will of real estate, and directing an account to he taken of the testator's debts, funeral expenses, and legacies, with directions in case the personal estate should be deficient, for raising the deficiency by mortgage or sale of the real estate. '"^i'^^P?!?"^ Declare that the will of the said testator being admitted by the creed to be Said defendant P. H. his heir at law, ought to be established and the established trusts thereof performed, and doth order and decree the same accord- and the trusts {^^\j . ^nd that it be referred to Mr. one, &c. to take an performed ■ account of the Said testator's debts funeral expenses and pecuniary An account to legacies, and to compute interest on such of his debts as carry in- be taken of terest, and also to compute interest on his said legacies at the rate the testator's of 41. per cent, per annum from the time the same ought to have gacies^" ^" ^®®° P^^*^ according to the said testator's will; And the said Master DECREES AND DECRETAL ORDERS. 855 IS to cause an advertisement to be published in the London Gazette the Master to for the testator's creditors and pecuniary legatees to come in before compute inte- him and prove their respective debts and claim their respective lega- clrried^inter-^ cies within a time to be therein limited, or in default thereof they est; will be excluded the benefit of this decree. And the said Master is Advertise- also to take an account of the personal estate of the said testator not ™^/','\'°^'^l specifically bequeathed come to the hands of the said defendant J. H. f^g creditor^ his surviving executor and the defendant P. H. or either of them, and legatees or any other person or persons for their or either of their use or by ^o come in be- their or either of their order ; And the said personal estate of testa- ]^l^. ^^^ ^^^' tor is to be applied in payment of his debts funeral expenses and An'accountto legacies in a due course of administration ; And if there shall be any betaiienofthe surplus of testator's personal estate remaining after payment of said personal es- testator's debts funeral expenses and pecuniary legacies, it is ordered *^gcaiiy be!' and decreed that the same be equally divided between and paid or queathed, retained by the said defendant P. H. and the defendants Lord Vis- possessed byv count W. and S. his wife in right of the said S., and the defendant *'/'^'°'^: , A TT T • 1 ° > Ml T. • 1 ■ 1 i antSftne same . A. H. accordmg to the said testator s will ; But m case the said tes- to be applied . tator's personal estate shall not be sufiicient to pay the said testator's in a due debts and funeral expenses and pecuniary legacies, then it is ordered course of »dr and decreed that the said defendant P. H. do out of the rents and ^^^ ^^^g g^^-' profits of the said testator's real estates which have accrued since his plus to be di- death and been received and taken by him, keep down the interest y^cd accord- of such of the said testator's debts and legacies as carry interest ; Bator's wHl^^' And that so much of the principal of the said testator's debts and j^ ^^se the pecuniary legacies as his personal estate shall be deficient to pay and personal es- satisfy, be raised by mortgage or sale of a sufiicient part of the said tate should be testator's real estate as the said Master shall direct, and that a suffi- p^^y theTebts° cient part thereof be for that purpose mortgaged or sold with the &c. the rents ' approbation of the said Master, wherein all proper parties are to join, of the real es- and all deeds and writings relating thereto in the custody or power pHed^in'^keep- of any of the parties are to be by them produced upon oath before ing down the the said Master as the said Master shall direct; And the money interest of the arising by such mortgage or sale is to be applied in the first place in g^des^'and'the payment and satisfaction of so much of the principal of the said debts deficiency of as the said ^testator's personal estate shall fall short to satisfy, and r *g5g i then in payment of so much of the principal of the said pecuniary ^j^g g^g^^ai legacies as the said personal estate shall fall short to satisfy, and if estate to be the same shall be raised by mortgage of the said estate, then the said raised by defendant P. H. is to keep down the interest thereof during his life; ^"g'^f^'f^g"'" And it is further ordered that all the parties have their costs of this ^eai estate ; suit out of the said testator's estate to be taxed by the said Master, tj^g interest of any mortgage to be kept down by the devisee during his life ; the costs of all parties to be paid out of the testa- tor's estate. 59 856 DECREES AND DECRETAL ORDERS. XXXIX. Decree for an account of a testator's personal estate, and directing the appointment of a receiver. An account to Decree that it be referred to Mr. one', &c. to take an account betaken of the ^f ^}ia,t leasehold estates the testator was entitled to at the time of leasehold es- ^^^ death, and of the annual value thereof, and also an account of tates and the the rents and profits thereof accrued since the testator's death re- rents thereof ceived by the defendants his executors or either of them or by any thedefendants Person or persons by their or either of their order or for their or his executors; either of their use ; And it is ordered that the said Master do also Also an ac- take an account of the personal estate of the said testator not speci- count of the figally bequeathed possessed or received by the defendants his exe- tate not spe- cutors Or either of them, or by any person or persons by their or cificaiiy be- either of their order or for their or either of their use ; And it is queathed poa- ordered that the Master do also inquire and state to the court what defendants ■ ^ ^^ *^® value of the leasehold house at, &c. lately belonging to the tes- The Master' to t^'^o'^ ^-i^ taken by the defendant ; And it is ordered that the said ascertain the Master do also inquire and state to the court whether the defendants value of a have possessed any and what specifi-C articles bequeathed by the tes- bv'derendant • t^*"'' Other than and except those which they have delivered to the An inquiry di- Specific legatees thereof; And for the better taking the said accounts rected as to and discovery of the matters afoi-esaid the parties are to be examined what specific upon interrogatories and to produce all deeds, &c. ; the Master to articles the i-i.ii n defendants make just allowances, &c. have possess- And it is ordered that the Master do appoint a proper person to be ed besides receiver of the rents and profits of the leasehold estates in question those deliver- -^^ ^j^jg cause, and allow him a reasonable salary for his care and The Master to P^ii^s therein ; such person so to be appointed receiver first giving appoint a re- Security to be allowed of by the said Master, and taken before a Mas- ceiver at a sa- ter Extraordinary in the country if there shall be occasion, duly and '^''^ ' . annually to account for what he shall receive of such rents and profits to be aUiber- ^^ *^® court shall direct ; and the tenants of the said estates are to ty to let the attorn and pay their rents in arrear and growing rents to such re- estates with ceiver, who is to be at liberty to let and set the said estates from time the approba- ^^ ^jj^g ^■^^]^ ^j^^ approbation of the said Master as there shall be oc- tion or the . * i • • i tit i • i • Master, and to casion ; And it IS ordered that the person so to be appointed receiver pay all baian- do from time to time pass his accounts before the Master and pay b^^ k°'°h''^t ^^^ balances that shall be reported to be in his hands into the bank to^'further^or- ^0 ^^ there placed to the credit of this cause, subject to the further der. order of this court ; And reserve further consideration, &c. DECREES AND DECKBTAL ORDERS. *857 *XL. Decree on further directions, directing the Master to compute subsequent interest on such debts as carried interest, and to take an account of any other debts remaining unpaid, also directing the sale of a sum of stock and payment thereout and out of other moneys of the debts to ie reported due to the creditors, except the plaintiff, he consenting to waive his right ; the executor directed to pay the balance in his hands into court, and directions given as to applying the proceeds in the hands of a consignee of a West India estate. His Honor did order that it should be referred back to the said The Master to Master to compute subsequent interest on such of the debts of the compute sub- testator W. M. B. mentioned in the first schedule to his general re- est orluctT'" port dated whereon interest is thereby computed, and also to debts as car- take an account of any other debts due from the said testator at his "<=d interest, death remaining unpaid and not mentioned in the said first schedule ^^^ *° '"'i" ^°- ii ■ -\ I -I • PI 111 1 en accountoianv to the said report; And it was lurther ordered that the sum ot £ other debts bank 3 per cent, annuities standing in the name of the said Account- remaining un- ant-General in trust in the said cause, " The account of the said tes- P"'^ ' tator's real estate," should be sold with the privity of the said ^ be"o[fand Accountant-General, and the money arising by such sale paid into thereout and the bank with the privity of the said Accountant-General to be there out of certain placed to the credit of the said cause, tlie like account ; and that out ^"™^ of cash of such money and out of the interest of the said bank annuities until ^^ j,g „^x^ ^-^^ such sale, and also out of the sum of £ cash in the bank on the sums reported credit of the said cause, " The testator's real estate," and likewise '^"^ to thern out of the sum of £ cash in the bank on the credit of the said plaintiff V. ^ cause, "The testator's personal estate," the several creditors of the H. ; said testator or their legal personal representatives should be paid what should be reported due to them except the said complainant W. H., he by his counsel consenting to waive his right or claim to receive any part of his debt out of the said bank annuities and cash ; And it was further ordered that the said J. F. B. should pay into The exe&utor the bank the sum of £ reported due from him by the said Mas- directed to ter's general report dated, &c. on account of the personal estate of bank'a°sum^ the said testator with the privity of the said Accountant-General to reported due be there placed to the credit of the said cause, " The account of the from him ; said testator's personal estate;" And it was further ordered that C. The consignee S. the consignee of the rents profits and produce of the testator's ^[a^esteteV"" estate in the said island of St. C. should be continued and pass his ^e continued, accounts before the said Master; and that the said C. S. should out and out of the of the profits and produce of the said testator's estate which might P™'^"'^.^ ^° '^'^ come to his hands pay the arrears and growing interest of the debt thTa^rear^s''^ reported due to the said W. H. and of the legacies given by the said and growing testator's will and codicil, and also the arrears and growing payments interest of the of the annuities thereby given, and that he should pay the residue of ^ H^"and°of such rents profits and produce into the bank with the privity of the the legacies, said Accountant-General to be there placed to the credit of the said and also the cause, subject to the further order of the court ; And it was further "^"^^"^^ ^'^^ 857 DECREES AND DECRETAL ORDERS. growing pay- ordered that the said Master should tax all parties their cost of this meats of the g^i|. other than *the mortgagees who had been paid their costs, and L 858 ] that such costs when taxed should be paid to the solicitors for the annuities, and said several parties out of the residue of the money to arise by sale beVaTd into ° °^ *^® ®^'*^ bank annuities before directed to be sold, and of the divi- thebanis;; dends that should accrue thereon until the sale thereof, and of the Directions Said sums of £ and £ cash in the bank in the said cause, given as to the aforesaid accounts, (after payment of the said several creditors) and"cmt of ^ ^^^ ^^^° °'^* °^ *^® ^^^^ ^"™ °^ °^ before directed to be paid into what funds to ^^he bank on the account of the personal estate, as far as the same be paid; would extend, and that the residue of such costs should be paid by the said C. S. out of the rents profits and produce of the said testa- Further direc- tor's estate in the said island of St. C. [and the usual directions were tions reserved thereby given for the said Accountant-General to draw on the bank tions in what' ^'^^ *^® purposes aforesaid ;] And his Honor did continue the reser- proportions vation of any directions as to the question whether there were any - certain lega- and what circumstances aflfecting the said testator's estate to make it nuUies should P^op^"^ ^^7 Ways and how far to lessen the two legacies of £ abate, each given by the said testator's will to his two daughters the said E. B. and L. B., and also the annuities of £ sterling given by the said will to the said D. M. G., £ St. C.'s currency thereby given to the said L. F., and also the two annuities of £ each given by the first codicil to the testator's will to the said E. B. and the question L. B. ; And his Honor did reserve the consideration of any question respecting the ^^^^ might arise between the creditors of the said testator respecting widow^s para- i . °, , ~ , i. i • n , -n phernaiia re- ^ne jewels and ornaments oi the person oi the said testator s wiie served, and which she usually wore, and of all further directions ; and any of the all further di- parties Were to be at liberty to apply to the court as there should be rections. ^ . ^ rr •/ occasion. XLI. Order directing a reference to the Master to inquire as to what part ef a testator's personal estate is out on securities, which of them are proper to he continued or called in, with directions given for the latter purpose. Let the Master inquire what part of the said testator's estate is standing out upon securities and what debts are owing to the said estate, and whether any and which of them are proper to be called in or continued, and let such of them as the Master shall find are proper to be continued be continued accordingly, and let such of them as the Master shall find are proper to be called in be called in with the approbation of the said Master, and let the Master appoint a proper person for that purpose, and make him a reasonable allow- ance in respect thereof; and if it shall be necessary to put any of them in suit, let the same be put in suit accordingly in the name of the defendant E. 0. the executrix, and let her be indemnified therein out of the said testator's estate. BECREES AND BECRBTAL ORDERS. *859 XLII. Decree on further directions in the original cause, and on the hearing of a supplemental suit ; the plaintiffs in the latter suit declared to be entitled to the benefit of the proceedings in the origi- nul cause, and to prosecute the same ; the accounts directed to be carried on from the foot of the former accounts, and the executor to be charged with a legacy retained by him and allowed in the Master's general report ; the testator' s real estates declared to be subject to the payment of his simple-contract debts, and the plain- tiffs in the second suit declared to be creditors to the amount of a sum of stock sold out by the testator, and an account directed to be taken of the dividends which would have accrued due in case the same had not been sold out ; construction of the will declared with regard to a devise of certain estates not exceeding 3000Z. a-year as being to the separate use of a married woman for life {she having for some years been separated from her husband), with remainder to her children in fee ; the testator's shares in a theatre directed to be sold and the purchase-moneys paid into the bank. The costs of all parties to be taxed as between solicitor and client, and direc- tions given out of what funds the same were to be paid. The prayer of the original bill, the decree made at the original hearing, the Master s general report, and the prayer of the supple- mental bill recited. Thursday the 15th day of March, in the 8th year of, &c. 1827. Between G. Gooch, Plaintiff, and J. Haworth and S. his wife, &c. Defendants. And between L. M. Mestaer, &c. infants, all out of the jurisdiction of this court, at the Cape of Good Hope, by their next friend, ■ . . Plaintiffs, and G. G., J. H. and S. his wife, &c. Defendants. By original and supplemental bills. The first mentioned cause coming on on the 18th day of April 1820, to be heard and debated before the Right Honorable the Master of the Rolls, in the presence of counsel learned on both sides, the scope of the plaintiff's bill appeared to be, that the will of Prayer of the the said testator P. E. M. might be established, and that the trusts ^^'fi'the^Ts"' thereof might be performed and carried into execution by and tator's will e's- under the direction and decree of this court, and that the rights and tablished and interests of all the parties entitled and interested under the same *^® '™^'^ right be ascertained and declared, and that an account might be edTnto execu- taken of the said testator's freehold and copyhold estates devised tion, and the by his will, and of the rents and profits thereof, and of the personal "ghts of all estate and effects of the said testator not specifically bequeathed, \l^^l. *^°^'^' ^59 DECREES AND DECRETAL ORDERS. Accounts tak- and of the said testator's funeral and testamentary expenses, and audpersonaf^ °^ ^^^ debts, and of the legacies and annuities given and bequeathed estates and of ^J ^is Said will and codicil, and which accounts the plaintiff was debts, &c. ready and willing and thereby offered to come to *in such manner [ *860 ] as this court should direct, upon being indemnified and having all That the per- j"st allowances made to him in taking of such accounts, and that sonai estate the Said personal estate might be applied in payment of the said might be duly funeral and testamentary expenses debts legacies and annuities in the clear resi- ^ ^^^ course of administration, and that the clear residue (if any) due ascertain- might be ascertained and secured for the benefit of the persons who ed and secur- should be declared to be entitled thereto ; and in case the said per- . ' , sonal estate not specifically bequeathed should be found insufficient personal es- *° V^7 ^^^ ^^id funeral and testamentary expenses, debts legacies and tate should be annuities, that the rents and profits of the said freehold and copyhold 'h^^^i?'^"*' estates might be applied in aid of the said personal estate, and that of^the reafes- *^® deficiency (if any) might be supplied by the sale or mortgage tate might be of the whole or a competent part of the said freehold and copy- applied in aid, hold estates, subject to such mortgages or equitable liens as were cilnc ^su ^^en subsisting therein, and that all proper parties might join in pliedbysaleof such sales, and that the residue of such freehold and copyhold the real es- estates (if any) and the surplus produce of the sales of such part ^^^^' as should be sold might be ascertained, and might be conveyed d*"^' Hb ™^^i *° °^ secured for the benefit of such persons as should be declared estate and the ^7 ^^^ court entitled thereto or interested therein; and that the surplus pro- plaintiff might be authorized and directed either to complete the duce of any gjjjp q^ ^]^q stocks or to Sell and dispose thereof in its then present ascertained Condition ; and that some proper person or persons might be ap- and secured ; pointed to Collect and receive the rents and profits of the said tes- Tbat the tator's freehold copyhold and leasehold estates, and also to collect plaintiffmight ^nd get in the debts and outstanding personal estate of the said to coraplet'e or testator, and that such directions might be from time to time given to sell a ship for the better collecting in and administering the estate of the said on the stocks; testator as to this court should seem fit; and that the said defend- That a receiv- ant S. H. might set forth a full true and just account of all the per- apijomted of ^onal estate and effects of the said testator come to her possession the rents of or power, and in particular a full true and exact inventory of all the theestatesand household goods furniture linen china plate jewels and effects in the standing per- possession of the Said testator or in the said testator's dwelling-house sonal estate; or known at his decease, and that it might be referred to one of the That a defen- Masters of this court to ascertain whether any and what part of the dant might set said household furniture and effects were the separate property of forth an ac- ^^^^ gg^j^j defendant ; and that in the mean time the said defendant count or the • i . .,,,.. . <• i ■ testator's ef- might be restrained by the injunction oi this court from selling or fects posses- disposing of the said household goods furniture linen china plate sedby her, jewels and effects or any other part thereof, and from removing or toryof aiithe permitting the same or any part thereof to be removed from the effects in his Said testator's dwelling-house or houses, or from the place or possession at places where the same then were ; Whereupon and upon debate and that the ^^ ^^^ matter and hearing the will of P. E. M. dated the 2d day Master may of June 1809, and the codicil thereto read, and what was alleged ascertainwhat by the counsel on both sides, His Honor did order and decree JJilUKJiiJiiB AJNU va\jD,ax^Ii ORDERS. 860 that it should be referred to Mr. A. then one of the Masters of part thereof this court, to take an account of the testator's personal estate not T^ \*'"' '^^a'^'^" specifically bequeathed come to the hands of the plaintiff the exe- rate property, cutor, or any person or persons by his order or for his use, and and that iu the *of such part of the personal estate as had been sold, and of the out- [ *861 ] standing personal estate ; and the said Master was to distinguish mean time an such part of the said personal estate as was specifically bequeathed ; injunction And it was ordered that the said Master should inquire whether any ^gfrain^her' part of the personal estate specifically bequeathed had been sold by from selling the plaintiff, and if any had been sold, It was ordered that the said or removing Master should inquire and certify the amount of the produce thereof; ""^ ^"""^ ' And it was ordered that the said Master should also take an account ^j^recUn'^a're- of the said testator's debts funeral expenses legacies and annuities, ference to the and compute interest on his debts carrying interest after such rate Master to take of interest as they respectively carried, and on his legacies from the ^"^ account of time and at the rate directed by his will ; and where no time of pay- f^te not spe'ci- ment or rate of interest was directed, then at the rate of 4Z. per cent, ficaiiy be- per annum for the end of one year after the death of the testator ; queathed pos- And the said Master was to cause advertisements to be published in p^alntift'the the London Gazette and such other public papers as he should think executor, proper, for the creditors of the said testator to come in before him '''lat part had and prove their debts, and he was to fix a peremptory day for that ^^hat was'o^ut^ purpose, and such of them as should not come in to prove their debts standing; by the time so to be limited were to be excluded the benefit of the also to enquire said decree ; And it was ordered- that the said testator's personal what personal estate not specifically bequeathed should be applied in payment of caii'^e^^'^''^' his funeral expenses and debts in a course of administration, and queathed had then in payment of his legacies and annuities; And it was ordered been sold, and that the clear residue thereof should be ascertained; And it was or- tjje produce dered that the said Master should inquire and certify whether any , ' ,. * Accoimt Qi— part of the household goods furniture linen china plate jewels and rected of the efiects in the possession of the said testator or in and about his dwel- testator's ling-houses at his decease, belonged to the said defendant S. H. ; ^^^^^' fuu^ral And it was ordered that the said Master should inquire and certify gadeT'aad^' whether the said defendant J. E. M. was the heir at law of the said annuities, testator and whether there was or were any and what other child ^'^ '^'™''- or children of the said defendant living at the decease of the said c'^mpujiag in. testator besides the said defendant L. M. M. the daughter of the terest on debts said J. E. M. ; And it was ordered that the said Master should in- and legacies. quire whether the said defendant L. M. M. or any of the said children Advertise- had or hath obtained the age of twenty-one years, and what age they ™^|°/-^.*° A^ had respectively attained, and whether any and which of them had [j^g creditor^ died, and whether any and what child or children had been born to to come in and the said defendant J. E. M. since the decease of the said testator; prove; And it was ordered that the said Master should inquire whether any i3|rections and what deed or instrument was entered into and executed on the fppl"caticm'(ff personal es- tate not specifically bequeathed ; Inquiry directed what goods, furniture, &c. in the testator's posses- sion at his decease belonged to defendant S. H.; Inquiry directed whether J. E.M.wasthe testator's heir at law, what other children the defendant had besides the plaintiff L. M. M. and as to their respective ages, whether any had died, and which of them had been born since the testator's death ; 861 DECREES AJNiJ UJBUHJaTAJj UKliJSBH. Inquiry di- occasion of the Separation of the said defendant J. H. from the said rected as to a defendant S. H. and whether notwithstanding such deed or instru- ratlon°execat- Client the said defendant J. H. had any and what claim or was enti- ed by the de- tied to any and what part of the property and effects given or devised fendants J. H. to the Said defendant S. H. by the will and codicil of the said testator whether J^H ^^ ^^® *^® ^^^^ defendant's niarital right or otherwise ; And it was had notwith- Ordered that the receiver of the rents and profits of the real and lease- standing any hold estates, and of the outstanding personal estate should be con- [ *862 ] tinued, and pass his accounts before the said Master ; *And it was claim in his Ordered that the said Master in passing the said Receiver's accounts marital right should distinguish the accounts of the freehold from the accounts of and effertf *'^® leaseholds, and distinguish the accounts of such part of the said given by the testator's real and leasehold estates as was specifically devised by his testator to S. -will ; And it was ordered that the said Master should inquire whether ' . any and what sum of money had been paid by the said plaintiff and to be'^continu- ^^^ ^^^^ Receiver or either of them in the reparation of or relating ed, and direc- to the Said estate specifically devised ; And the said Master was to tions given to be at liberty to make a separate report or reports of any or either of the Master in ^j^^ matters aforesaid as he should think proper, and for the better passing his , . , ^ "pi p ■ ^ accounts, to taking the several accounts and discovery oi the matters aioresaid, distinguish the parties were to produce before the said Master upon oath all the freehold papers and writings in their custody or power relating to the matters and leasehold '^ ~'^ ., , °,, . ^ '^ . , ,°. ^, .■• accounts and atoresaid, and were to be examined upon interrogatories as the said the accounts Master should direct, who in taking of the said accounts was to make of the parts unto the parties all just allowances ; And it was ordered that the said devtsed'^ '^ Master shpuld tax the costs of the said suit of all the parties to that Inquirv di- time, the costs of the plaintiff to be taxed as between solicitor and reeled as to client ; And it was ordered that the said Master should inquire what sums whether any and what costs charges and expenses had been properly b thrplatn- iiicurred by the said plaintiff as executor and trustee of the said.tes- tiff or receiver tator's will in the execution and performance of the trusts of the said in repairs; testator's will, Or Otherwise relating to the said testator's affairs ; by the plaintiff And his Honor did reserve the payment thereof, and also the consi- ^I're'^air's 0? deration of all further directions and of the subsequent costs of this an estate spe- suit until after the said Master should have made, his general report ; cifically de- And the parties were to be at liberty to exhibit Hn interrogatory in vised ; ^j^g Master's ofBce and examine witnesses thereon to prove the will b"^ Ub^*T t° °^ *^® testator as to his real estate ; And any of the parties were make separate to be at liberty to apply to this court as there should be occasion ; reports, and in That in pursuance of the said decree the said Master made his taking the ac- report dated the 6th day of December 1824 which stands absolutely make all" just Confirmed, and thereby certified that he found that all the cre- allowances; ditors of the Said testator named in the several reports therein- the costs of all before mentioned had subsequently been paid the several sums re- parties to be ported due to them out of a sum of 9115Z. in manner directed by thrpiaintiff as ^^ Order of the 30th day of July 1822, but a claim had been laid between soli- before him on behalf of the defendant J. B. M. and his children, citor and cli- the plaintiffs in the second mentioned cause, being the claim herein- .^"''. ,. after mentioned, in respect of the trust funds sold out by the said ed^ar to 'what testator as hereinafter stated ; And the said Master after stating the costs had been will and codicil of p. M. the father of the defendant J. E, M. and DECREES AND DECRETAL ORDERS. 862 of the said testator P. E. M., certified that it appears that the said incurred by P. M. died in January 1791, being at the time of his decease pos- the plaintiffin sessed of lOOZ. per annum consolidated long annuities standing in of the trusts of the books of the governor and company of the bank of England the will; in his own name ; And that the will was proved by the said P. B. M. the parties to and J. M. in the Prerogative Court of Canterbury on the 5th day be at liberty to of February 1791, and that the said J. M. died leaving the said nessesMThe' testator P. E. M. him surviving and that the said testator P. E. M. Master's Office received the dividends which became due on the said long annuities to prove the up to the 10th day of October 1801, and afterwards departed, this ^r";^of.o ^ *life on the 6th day of February 1819, having by his will appointed L J the said plaintiffs G. G. and R. P. and W. L. his executors, and that f^e 'n^sTer-f in pursuance of an act of parliament passed in the 56th year of the report, certi- reign of his late Majesty King George the Third, intituled, "An act fying that all " to authorize the transferring stock upon which dividends shall re- the creditors " main unclaimed for the space of at least ten years at the Bank of and out of ' " England, and also lottery prizes or benefits or balances or sums wbatfund,but " issued for paying the principal of stocks or annuities which shall ''^^^^ claim " not have been demanded for the same period, to the commissioners before him on " for the reduction of the national debt," the said lOOZ. per annum behalf of de- consolidated long annuities were transferred out of the name of the fendant J. B. said P. M. or otherwise in pursuance of the said act appropriated to gj^y^ren in re- the account of the commissioners for the reduction of the flational spect of cer- debt, together with the amount of the dividends which accrued due tain trust thereon from the said 10th day of October 1801 inclusive, and that b"°the'testa"* there became due for dividends on the said annuities up to and in- tor- clusively of the 5th day of April 1823 the sum of 21501., being for and certifying forty-three half-yearly dividends thereon ; and that by an order made that P.M. died in the matter of the said act of parliament on the 29th day of Novem- ^"^^^^^^"^ °^ ber 1822, It was referred to Mr. J. lately one of the Masters of this nuities that honorable court, to inquire and state to the court what Bank long his will was annuities which were standing in the name of the said P. M. in the P™Y?'^ ^^a^\ books of the Governor and Company of the Bank of England had jj' tj^at^p, b! been transfered into the names of the commissioners for the reduction m. survived of the national debt under and by virtue of the said act of parliament, and received and what was due and unreceived for dividends in respect of the said ' ^i, '^'^^'l ^ T^iT •■ 11 ■■ 1 ,on the long Bank long annuities ; and also to inquire and state to the court who annuities up was or were beneficially entitled to the said Bank long annuities and to i so i, that the interest due and unreceived thereon, and in what shares and pro- jg, g'!*^ ^'^ portions ; And that in pursuance of the said order Mr. T. the successor andthatunder of the said Master J. made his report bearing date the day of the 56 Geo. 3. 1823, and thereby certified that he was of opinion that the said the im. long 1001. per annum consolidated long annuities standing in the name f^ferred^to of the said P. M. which had been transferred into the name of the the account of said commissions for the reduction of the national debt by virtue of the commis- the said act of parliament, belonged to the said P. M. deceased, and smners for the that the same passed under the will of the said P. M. to the said tes- t;,g national tator P. E. M. as his residuary legatee, and that the same, together debt, together with the divi- dends accrued due thereon, amounting to 2150^. ; Order made directing an inquiry as to what bank long annuities standing in the name of P. M. were transferred to the said commissioners, and what was due thereon, and who were beneficially entitled thereto; Statement of the Master's report certify- 863 DBCKBES AND DECRETAL ORDERS. inghis opinion -witli the sum of 2150Z., being the amount of forty-three half-yearly lon^ annuS ^i^i'^ends Upon the said long annuities from the 5th day of April 1802 passed under to t^^ said 5th day of April last inclusive, then formed part of the out- the will of p. standing personal estate of the said testator P. E. M., and that he as Ws^residu ^^^ further of opinion that the said G. G. as executor of the said P. ary legatee -^- '^- deceased Was beneficially entitled to the said consolidated long and that the annuities, and that the same ought to be transferred by the said G. ^Th'?^^*^"^ G. into the name of the Accountant-General of this court, in trust in n5oi. the *^^^ cause, and that the sum of 2150Z. accrued for dividends thereon amount of di- ought to be paid to the said 0. T. the person appointed to collect Tidends ac- and get in the outstanding personal estate of the said testator P. E. [ *864 ] M., to be disposed of by him under *the order and direction of this crued due, court ; And the said Master W. by his said report of the day th™ u^tstand°^ °^ "^^^* ^°'^°*^ ^^^^ ^^ ^^ °^^^^ ^^^^^ *® ^^^ °^ ing personal' 1^23, It was ordered that the report of the said Master T. should be estate of p. E. absolutely confirmed; And it was further ordered that the secretary M. and that G. or deputy secretary of the Governor and Company of the Bank of tor was benefit ^"^glaid should transfer unto the Accountant-General of this court ciaily entitled in trust in this cause, the said sum of 1001. per annum consolidated to the long an- long annuities theretofore standing in the name of the said P. M. the'sam*^* and since transferred into the names of the commissioners for the ought to be reduction of the national debt ; And it was further ordered that the transferred said sum of 2150Z. being the amount of the dividends accrued into t'^'^ A^- upon the said consolidated long annuities up to and inclusive of the nerai's^name' ^*^ ^^J °^ April 1823 should be paid unto the said receiver C. T. ; and that the And it was referred to the said Master T. to tax and settle the costs 21502. ought incurred by the said commissioners for the reduction of the national the receiver? *^®''*' ^^^ *'^° V ^^^ Majesty's Attorney-General by the said plaintiff Statement of ^' ^* ^^ ^^^ ^^^^ matter, and that the said costs when taxed should . an order con- be paid by the said 0. T. out of the said sum of 2150Z., and that the firming the residue of the said sum of 2150Z. should be applied and disposed of pM^t^fTnd du' ^y ^^^ ^^^^ ^- '^- ^^ ^^^^ receiver as aforesaid under the direction of recti'ng a this honorable court ; And he found that the said 1001. per annum transfer to be consolidated long annuities were transferred into the name of the Ac«)Vntant- Accountant-General of this court in trust in this cause on the General of the day of 1823, and that the said long annuities were then stand- 1001. long an- ing in the name of the said Accountant-General in trust in this cause ; nuities, and ^^^ ]jg farther found that the said C. T. as such receiver as afore- 2i5o)^to°the^ said on the 14th day of August 1823 received the sum of 2025Z., receiver, also being the said sum of 2150Z. dividends accrued due on the said con- directing a re- golidated long annuities up to and inclusive of the dividends due on taxation of *^® ^*^ ^ay of April last l_after allowing thereout for property tax and costs and pay- costs,^ and which Said sum of 2025Z. was included in the said C. T.'s ' ™^°' thereof fifth account as receiver of the outstanding personal estate of the said 2150° ■ * testator ; And he further certified that under the circumstances afore- And further ^^^^ he had at the request of the solicitor for the said defendant J. certifying that E. M. thought fit to State those circumstances for the judgment of the 1001. long the court ; And he further certified that a statement on the part of were'transfer- *^^ ^^^^ plaintiff G. G. had been laid before him, whereby it appeared red into the that on or about the 10th day of January 1817 G. E. since deceased name of the filed his bill in this court against the said testator, setting forth the DECREES AND DECRETAL ORDERS. 864 bond of the said testator bearing date the 1st day of March 1805 Acconntant- whereby the said testator became bound unto the said Gr. E. in the General, and penal sum of 10,000Z. with a condition for making the same void on ^gf^'^ had%e- payment of 5000Z. and interest at the times thereinafter mentioned, ceivedthebal- and also setting forth certain indentures of lease and release dated a°<=e of the respectively the 28th day of February and the first day of March lUl^alTii^e 1805, and made between the said testator of the one part and the property tax said G. E. of the other part, by which indenture of release in con- and costs; sideration of 5000Z. therein expressed to be paid to the said tes- And further tator by the said G. E., he the said testator did convey a certain certifying that dock yard and several messuages tenements or dwelling-houses '^r^M^o'^T-i *situate at R. in the county of S. part of the real estate of the said L J testator, and comprising the whole of his R. estate unto and to the plaintiff g.V use of the said G. E. his heirs and assigns for ever subject to redemp- had been laid tion on payment by the said testator to the said G. E. of the said sum before him, of ^5000 with interest at £5 per cent, per annum on the 1st day of ^earettVatT March 1806, and praying that an account might be taken by one of e. filed a bill the Masters of this court of what was due to the said G. E. for of foreclosure principal and interest on his said security, and that the said testator ^^^'°^' ^'^^ might be decreed to pay to the said G. E. what should be so found ting forth a due, and in default thereof that the said testator might be foreclosed bond, and in- from all equity of redemption in the same premises ; And that the dentures of said testator filed a cross-bill against the said G. E. and thereby iHH ^^^ ^^' prayed that he the said testator might be let in to redeem the said mortgage ex- mortgaged premises, and that an account might be taken of the prin- eouted by him cipal and interest secured by the said mortgage, and of all sums paid s'ooorand m- or advanced by the said testator to or for the use of the said G. E. terest on an on account of the said mortgage; And in case it should appear that estate atR., the said G. E. had been overpaid the amount of what was due to him and praying in respect of his said mortgage, then that he might be decreed to re- *'^e usual ac- pay to the said testator so much money as it should be found he had gj "° and in-' been overpaid, and that the said G. E. might be decreed to re-con- terest due, and vey to the said testator and to deliver up the said indentures of lease f°'' a forcio- and release and bond together with six several bills of exchange in of'^faymeivt- the said cross-bill mentioned : And that after the death of the said „, , ,, , ' testator the said G. B. filed his bill of revivor against the plaintiff ^ator filed a G. G., and that afterwards the said G. E. died having appointed A. cross-bill H. 0. and W. H. executors of his will, and that since the death of ^"'^'°^^°Y^^ the said G. E. his said executors had filed their bill of revivor and to hLe'an^ac- supplement against the said plaintiff G. G. and J. R. of, &c. esquire, count taken of who under and by virtue of certain indentures of lease and release principal and bearing date the 27th and 28th days of November 1818, made be- g^'bythe''"'" tween the said testator of the one part and the said J. R. of the mortgage, and other part was a mortgagee of the same premises for the sum of of all sums ^£8000 and interest at £5 per cent, per annum; And the said Mas- fe^g'fatoronac- ter further found that the said G. G. put in his answer to the said count; last-mentioned bill, and that the said suits and proceedings were then rpj^g^^ j^^^gj. ^j^^ testator's death the mortgagee filed a bill of revivor, and died having appointed A. H. 0. and W. H. executors, who filed a bill of revivor and supplement against the plaintiif G. G. and J. E. a subsequent mort- gagee; That the proceedings were then pending, but that £3000 had been paid to J. R. under an 865 DECREES AND DECRETAL ORDERS. order in part pending, but the sum of £3000 had been paid to the said J. R, under the''''rhfci °al ^"^ °^^^^ ^^^^ ^'^ ^^^^ ^^^^^ °^ *^® ^^^ °^ ^^^* °^^ °^ *® due to Wm^ Outstanding personal estate of the said testator in part discharge of And further ^^^ ^aid principal sum of £8000 and that the said interest on the re- certifying that maining principal sum of £5000 had been paid up to the 28th day ?- ^A^h^ T" °^ November 1824 out of the rents and profits of the said testator's gacy of £500. ^^^^ estate ; And as to the directions in the said decree that his pre- And also cer- decessor should take an account of the said testator's legacies and tifying what annuities and commute interest on his legacies from the time and at was due to J. the rate directed by his will and where no time of payment or rate rears o^Ms' °^ interest was directed then at the rate of £4 per cent, per annum annuity, from the end of one year after the death of the said testator, the said and also what Master W. by his report found that the plaintiff G. Gr. had retained was due to F. his Said legacy of £500 out of the personal estate of the said testa- defendan^j *°''' ^^^ *^^* ^® ^^^ heen allowed the same in his accounts of the r *8fifi 1 ^^^^ testator's *personal estate come to his hands ; And as to the be- '- ■' quests given by the said testator's will, he found that the sum of of interest^on ■£4666 was then due to the defendant J. E. M. for arrears of the her legacy, aforesaid annuity of £800 given to him for his life, such arrears and also what being computed from the day of 1819 the day of the death fendan^E E^' °^ ^^^ ^^^^ testator unto the day of 1824 being the date M. A. for ar- of his Said report ; and that the sum of £466 was due to the defen- rears of inter- dant P. M. P. late F. M. M. but then the wife of the defendant J. *ac°°and also ^- ^°^ ^.rrears and interest of the aforesaid sum of £2000 bequeathed what was due ill manner aforesaid, such arrears being computed for the same period to the other and at the rate of il. per cent, per annum ; and that the like sum of thdrTe''/cies ^^^^ "^^^ ^^^ *° *^^ defendant E. E. M. A. widow, late B. E. M. M. and interest ^°'' arrears of interest bequeathed as aforesaid in respect of the thereon as aforesaid sum of £2000, such arrears being also computed for the specifiedinhis period and at the rate aforesaid; and that the several sums afore- T^""^ ' said particularly set forth in the last schedule to his said report and quest of £3000 amounting together to the sum of £620 then remained due to the per annum to Several Other legatees in the testator's will and in the first schedule S. H. for life, named, for the principal of their respective legacies, and for interest clined^to^nro- t^^i'^on computed at 4Z. per cent, per annum from the 7th day of ceedtotakean February 1820 (being one year after the death of the testator) unto account until the 5th day of December 1824; And as to the aforesaid bequest of fllf l?ties°n- ^^000 per annum to the defendant S. H. for her life, and after her terested there- decease for the benefit of the children of the defendant J. E. M., in were ascer- he had not proceeded to take any account thereof being of opinion tamed; that no such account could be taken until this court should have rectlon'^^'fh' declared the right and interests of the defendant S. H. under and regard to what ^J virtue of the testator's will; And as to the direction in the said household decree that his predecessors should inquire whether any part of the goods, &c. in household goods furniture linen china plate jewels and effects in the of the testator possession of the testator or in or about his dwelling-house at his de- belonged to s. cease belonged to S. H., he found that by an order dated the H., the Mas- day of 1820 on the application of the said defendant S. H., It that'^by a for- ^^^ ordered that the plaintiff should be at liberty to deliver to the mer order G. Said defendant S. H. the keys of the iron chests in the petition G. was direct- mentioned containing the jewels and plate, and that she should sign DECREES AND DECRETAL ORDERS. 866 an inventory of such jewels and plate and a receipt for the same ; ed to deliver And he found that in pursuance of the said order th6 said keys were *° ber the delivered to the said defendant S. H. on the day of 1820, frTa chests" and that she signed an inventory and receipt for the same which was containing then in the hands of the said plaintiff; And as to the other part of J^'"'^'^ ^^^. the effects in question, he found that by his predecessor's said sepa- ?j^ ^^ ^nveu- rate report of the 19th day of June 1821 the said plaintiff had with tory tiiereof, the consent of the said defendant S. H. sold twelve houses and se- and that the veral cows specifically bequeathed to her for several sums of money ^g^g.^^^ amounting together to the said sum of ^6974 which was received by ^^^ ^^ ^^ the plaintiff, and was included in the sum which his predecessor other part of charged him in and by his said separate report ; And he found that tbe effects he the clear residue of the said testator's personal estate subiect to the ^^'■'''^/'^ ^^'^^ bv Si form p. T* payment of the residue of the said mortgage debt of £8000 to the report it ap- said J. R. and also to the said claim of the executors of the said peared that G. E., and also subject to the claim of the said J. E. M. and his *^ plaintiff *children in respect of the sale of the said 6666Z. bank 3 per cent. [ *867 J annuities, consist of the following particulars : in the name of the ^^^^ sold cer- Accountant-General of this court in trust in this cause the sum of ^^'° cow^^^ d lOOZ. per annum consolidated long annuities, and the sum of lOOZ. received the cash arisen from interest thereon up to the day 1824 in- moneys pro- elusive, also the sum of 1241. cash remaining in the bank on the ^^'^^^ v^u^u^ credit of this cause being the balance of personal estate paid into had been court after payment thereout of the debts found due to the creditors charged : of the said testator as thereinbefore mentioned and of the costs of Also certify- the said suit paid thereout as aforesaid, also of two Drury-Lane shares J°S of what of small value, also of five River-Lea shares amounting to 600Z. which ^yg ^f ^^^ were deposited by the testator in the hands of R. W. of, &c. as secu- personal es- rity for payment of a balance of 500Z. and upwards due to him from tate consisted; the said testator and still continue in his hands, also of the several outstanding debts remaining due to the said testator's estate, and an unliquidated claim made by the said receiver upon the Columbian Government amounting to 7000Z., but which claim hath not been admitted by the said Government, and doth also consist of a leasehold public house situate at W. let at the yearly rent of 301. and which was held by the said testator by lease granted by I. Earl T. deceased to the said P. M. deceased the father of the said testator at a ground rent of 11. 10s. per annum, and which lease would expire at Lady- day 1833 ; And as to the direction in the said decree that his pre- Also certify- decessor should inquire whether the said defendant J. E. M. was the ing t^i^t J. E. heir at law of the said testator, he certified that having made the fnil^bro^ther said inquiry he found that the said testator the said P. E. M. died and heir at a bachelor, leaving the said defendant J. E. M. his only brother and law of thetes- heir at law him surviving; And as to the inquiry respecting the *'^*'°''' children of the said defendant J. B. M. he found his predecessor had made the separate report hereinbefore mentioned bearing date the day of 1823 ; And as to the direction in the said decree And as to the that his predecessor should inquire whether any and what deed or direction in instrument was entered into and executed on the occasion of the *-!if ^'^'^^''d separation of the said defendant J. H. from the said defendant S. the deed of H., and whether notwithstanding such deed or instrument the said separation, 86T DECREES AND DECRETAL ORDERS. and what claim J. H. might have in the property bequeathed to S. H. by the testator, the Master certifi- ed that on ac- count of loss of the deed as appeared by affidavits set forth he was unable to give any opinion how far the rights of the parties were affected : [ *868 ] And further certifying as to the receiv- er's accounts : defendant J. H. had any and what claim or was entitled to any and what part of the property and effects given or devised to the said defendant S. H. by the will and codicil of the said testator in the said defendant's marital right or otherwise, he found that by an affi- davit of the said J. H. made in the said cause on the 25th day of July 1823 he made out that he had not then in his custody or pos- session or power the deed of separation made between him the said defendant J. H. and the said defendant S. H., nor did he know in whose custody possession or power the same was ; And the said Master certified that the said defendant S. H. by an affidavit made before him in the said cause on the 5th day of March 1824 made out that a deed was executed on the occasion of her separation from the said defendant J. H. in or about the month of April 1797 ; and that one part of such deed was delivered to her and remained with her until the month of September 1820 or thereabouts, when at the request of T. H. who then acted as her solicitor in this cause she delivered the same to him for the purpose as he represented to her of laying the same before his the *said Master's predecessor, and further that she had caused numerous applications to be made to the said T. H. for the said deed without being able to obtain the same, he the said T. H. stating that the said deed was lost, upon considera- tion of which several matters the said Master found that a deed was entered into and executed on the occasion of the said separation be- tween the said defendant, but the same not having been produced to him and no evidence given as to the provisions of the said deed he was not able to give any opinion how far the rights of the said parties were affected thereby ; And as to the direction that the said re- ceiver of the rents and profits of the real and leasehold estates and of the outstanding personal estate should be continued and pass his ac- counts before his predecessor, and that in passing the said receiver's accounts he should distinguish the accounts of the freehold from the accounts of leasehold, and distinguish the accounts of such part of the said testator's real and leasehold estate as was specifically be- queathed by his will, he certified that the said receiver had passed his said accounts as to the said real estate up to Christmas in 1823 as appears by his said report bearing date the day of 1824 ; and that under an order of the day of 1828, and his certificate bearing date the day of 1824 he paid the said balance of the said account amounting to the sum of 186Z. unto the said defendant S. H. on the said 4th day of June, and as to the said personal estate that he had passed his account up to the day of 1824 as appeared by his report bearing date the day of 1824, and had under an order bearing date the ■ day of 1824 paid the balance of the said accounts to J. R. hereinbefore mentioned, and he certified that in passing the said ac- counts he distinguished the same in the manner directed by the said order ; And as to the direction in' the said decree that his prede- cessor should inquire whether any and what sums of money had been paid by the said plaintiff and the said receiver or either of them in the reparation or otherwise relating to the said estate specifically de- vised, he found that his predecessor had included the same in the DECBBES AND DECRETAL ORDERS. 868 separate report of the day of 1821 hereinbefore men- And farther tioned; and that his predecessor had taxed the costs of the said suit certifjingthat and of all parties to the time of making the said order, and made a j^e suit\ad separate report thereof which bore date the day of 1821, been taxed and that the said costs were paid under the said order of the ^^^ V^^^ ; day of 1821 ; And he further found that in pursuance of an- other order bearing date the 30th day of July 1822 his predecessor taxed the subsequent costs of all the parties at the time of making the said order as between solicitor and client, and made a separate report thereof which bore date the 6th day of August 1823, and that the said costs had been since paid under an order bearing date the 25th day of July 1823; And as to the direction in the said decree that his pre- And further decessor should inquire whether any and what costs charges and certifying as expenses had been properly incurred by the said plaintiff as exe- of costs incur- cutor and trustee of the said testator's will in the execution and per- red by the formance of the trusts of the said will or otherwise relating to the pi^iQt'ff in the said testator's. affairs, he certified that having made the said inquiry jj^g trusts of he found that the said plaintiff had incurred certain costs in the the will, and said suit instituted by the said A. H. C. and W. H. as executors of i° defending ■^the said G. E. against him the said plaintiff amounting to the sum and^ictilnf- of S8l., and also certain costs amounting to 41?. in defending an r ^qcq i action brought by J. P. against the plaintiff as executor of the said '- -' testator to recover a debt which had previously been rejected by the said Master W.'s predecessor, and also certain other costs amount- ing to 701. in defending an action brought by J. L. against the said plaintiff as executor of the said testator to recover another debt which had previously also been rejected by his predecessor, and also cer- tain charges amounting to 49Z. for various business relating to the said testator's estate transacted by the solicitors of the said plaintiff from August 1820 to March last past, and which said several costs charges and expenses amounted together to the sum of 2001. ; and he found that the said plaintiff exclusive of the above costs and charges had also incurred costs in a suit instituted by or on behalf of E. J. A. widow against the said plaintiff as executor of the said tes- tator, but which suit was dismissed, and the costs of the said plaintiff were ordered to be paid by the said E. J. A., but which have not yet been paid ; And the said cause coming on on the 14th instant and on this present day to be heard for further directions and costs, in the presence of counsel learned on both sides, and the second men- tioned cause coming on to be heard at the same time in the presence of counsel learned on both sides, The substance of the said bill, after statement of stating the said decree and report in the said first mentioned cause, the substance appeared to be, that P. E. M. being at the respective times of making ""the'^gecon^^ his will and of his death, seised of divers freehold and copyhold mentioned estates, and being at the time of his death possessed of or entitled to cause, a considerable personal estate and effects, and being a trader within the true intent and meaning of the laws relating to bankrupts, did make and publish his will bearing date , which was signed by him and attested in such manner as by law is required for passing freehold estates, and was in the words and figures or to the import and effect following : (The bill after stating the will, the particulars 869 DECREES AND DECRETAL ORDERS. of the testator's property, and various petitions orders and reports, proceeded thus :) That in pursuance of the said order the said J. L. has been duly appointed receiver of the rents and profits of the freehold copyhold and leasehold estates, [in the place of C. T. the former receiver deceased] and S. M. S. has been duly appointed receiver of the outstanding personal estate and effects, and that the executors of the said C. T. the late receiver have duly passed his last accounts of the rents and profits and also of the personal estate and effects, and have paid the balance appearing due on account of the rents and profits to the said S. H. pursuant to the order of this court, and have paid the balance appearing due on account of the personal estate and effects with the privity of the Accountant-General to the credit of the said suit under the order of this court ; That being entitled to a beneficial interest under the said will of the said testator P. E. M. the plaintiffs are, as they humbly submit, entitled to have the benefit of the said decree orders reports and proceedings in the said cause, and to have their rights and interests ascertained and secured by and under the direction and decree of this court ; That the plaintiffs are, as they humbly submit, entitled to have the said trust fund or sum of 6666Z. 3 per cent, consolidated bank annui- [ *870 ] ties which was appropriated by the said testator P. E. M. *out of the assets of the said testator P. M. to answer the said annuity of 2000Z. bequeathed by the said testator P. M. to the said P. E. M. and the plaintiffs, which was afterwards sold out by the said testator P. E. M. as aforesaid, raised and secured for the benefit of the plain- tiffs; and that the said sum of 1001. per annum long annuities part of the assets of the said P. M. which has been transferred into and now stands in the name of the Accountant-General in trust in this cause, and that the said sum of 20501. being the dividends thereof up to the 5th day of April 1823 received by the said C. T. the late re- ceiver as aforesaid, and the subsequent dividends which have since accrued due thereon ought to be applied in the first place towards raising the said trust fund or sum of 6666Z. bank annuities, and that the deficiency ought to be raised out of the estate and effects of the said testator P. E. M. ; And the plaintiffs charge that the said sum of 2050Z. having been applied towards payment of the said sum of 3000?. to the said J. R. as aforesaid, the plaintiffs are entitled to stand in the place of the said J. R. as creditors upon the said mort- gage estate for the sum of 2050Z. and the interest thereof, and the said defendant S. H. claims to be entitled by virtue of the said will of the said testator P. E. M. to some part of the said testator's real and personal estate absolutely, or in all events to some interest greater than a life estate therein, and the plaintiffs charge and hum- bly submit that according to the true construction of the said will of the said testator P. E. M. the said defendant S. H. is entitled only for her life to the yearly rent or sum of 3000Z. by and out of the an- nual income of the real and personal estates of the said testator if such income shall be sufiBcient for that purpose, and that subject to such yearly rent or sum of 3000Z. or to so much thereof as shall be produced by the annual income of the said real and personal estate, the same belongs to the plaintiffs the children of the said J. E. M. DEOKBES AND DECRETAL ORDERS. 870 in equal shares ; Therefore that the defendants in the second men- Praying that tioned cause might answer the matters aforesaid; And that they might '^^ plamtififs have the benefit of the said suit decree 'decretal orders report and the° benefit of proceedings in such manner as this court shall direct, and might be the former at liberty to prosecute the same ; And that the rights and interests proceedings, of the plaintiffs under the will and codicil of the said testator P. E. g°j ^^ mose- M. might be ascertained and declared and secured for the benefit of cute the same, the plaintiffs, subject to raising and paying of the said trust fund or that the rights sum of 6666?. 3 per cent, consolidated bank annuities; And that it f,'"^ ^'f f.!i °^ •11 1111 1 • -ly -11 1 1- •! '"^ plaintiffs might be declared that the piaintifis are entitled to have the said might be as- trust fund or sum of 6666Z. 3 per cent, bank annuities raised and certained and secured for their benefit ; And that the said sum of 1001. per annum tu''^7h ' ^^^ long annuities standing in the name of the said Accountant- General might be de- in trust in the said cause of Grooch v. Haworth, and the said sum dared entitled of 20501., the dividends thereof received by the said late receiver ^°f^^In,^f^'^ C. T. and the subsequent dividends of the said long annuities, raised and ought to be applied towards raising the said sum of 6666?. bank that certain annuities, and that the deficiency might be raised out of the ^^''^^ might estate and effects of the said testator P. B. M., and that the said ^LTf'!^?:*°: long annuities the sum of zOoOl. and subsequent dividends might the same, and be applied accordingly ; And that the deficiency might be raised ^^f deficiency accordingly out of the real and personal estate and effects of the '■'^'^^'^ °"' °^ *said P. E. M., and that for that purpose it might be declared that L ° ' ■■■ J the said P. E. M. was at the time of his death a trader within the **=« testator's true intent and meaning ojf the laws relating to bankrupts ; And that l^^^i estate"^' it might be declared that the plaintiffs are entitled to stand in the ^^^^ ^ might place of the said J. R. as creditors upon the said mortgaged estate be declared for the said sum of 2050?. part of the said sum of 3000?. paid to him ^^fj^g f 'J^" as aforesaid and the interest thereof, and that the plaintiffs might have ^g^ nMe to ' the benefit of the said mortgage security accordingly ; And to be re- the bankrupt lieved is the scope of the plaintiff's bill in the second mentioned cause; '^^s ; Whereto the counsel for the defendant S. H. alleged that, &c. [^stating ^^^, ^^^ ^^^ the substance of the answers of the several defendants;^ Whereupon miVht\e de- and upon debate of the matter and hearing the decree dated the dared entitled 18th day of April 1820, the report dated the 6th day of December to stand in the 1824, and exhibit marked (A)_, being the will of P. E. M.,the codicil ^^^.'^fg^l ^^ thereto, and the proofs taken in these causes read, and what was al- part of a sum leged by the counsel on both sides, This Court doth decree that paid to him ; the plaintiffs in the cause of Mestaer v. Gooch are entitled to the Decree.— The benefit of the proceedings in the original cause of Gooch v. Haworth, f^e'sgcond"^ and doth order that they be, at liberty to prosecute the same as par- cause entitled ties thereto; And it is ordered that it be referred back to the Master to the benefit to carry on the account of the testator's personal estate from the foot °^ ^^.^ P™" of his report dated the 6th day of December 1824; And this court ^^^ original doth reserve any question as to the application of the specific legacies cause, and to given by the will of the testator P. E. M. to the payment of the said prosecute the testator's debts ; And it is ordered that the said Master do carry on tfeTth'ereto!" the account of the defendant G. G. from the foot of his last account, Directions to and therein charge him with the sum of 500?. allowed to him in the the Master to schedule to the said Master's report dated the 19th day of June <=^"y "'^ ^^^ 1821, on account of his legacy under the said testator's will ; And the°testator'3 60 871 BECEEES AND DECRETAL ORDERS. personal es- this court doth declare the will of the testator P. E. M. well proved foot oms r*^ ^^^ ^^^^ declare that the said testator having been a trader at the port. time of his death, his freahold estates are liable to the payment of question re- ^^^ simple-contract debts in case of a deficiency of his personal estate, served as to and that J. E. M. and L. M. M., and P. M., J. E. M. and M. M. ^^eciTl°° °^ infants, his children, are to be considered as creditors on the estate cies to'^pay^' °^ *^® ^^^^ ^- ^- '^- to the amount of 6666?. bank annuities ; And it ment of debts; is Ordered that the said Master do take an account of what is due the Master di- under or by virtue of the indenture of mortgage made to J. R. in the rected to car- Master's report mentioned; And this court doth declare that the tes- cutor's ac-^^^' tator's copyhold estate at and all the freehold and copyhold countfromthe estatp of the Said testator not exceeding 3000Z. per annum, are well foot of the last devised to the defendant S. H. for her life for her separate use, chargrhi^ with remainder to the children of the defendant J. B. M. as tenants with a legacy in Common in fee, and are not subject to the legacies given by the retained by said testator's will ; And it is ordered that the said Master do take ""' an account of what is now due to the estate of the said testator P. deciaredto'^be ^- ^: "^'^^^ *^? indenture of the 31st day of December 1796 in the well proved, pleadings of this cause mentioned ; And it is ordered that the said and his real Master do make an account of the dividends which would have ac- estates liable g^ued due in respect of the 6666Z. bank 3 per cent, annuities, in case olz ] *the same had not been sold out; And it is ordered that the said tes- te the pay- tator's shares in the Theatre Royal Drury Lane be sold by some pircontract' pi'ops'^ person to be approved of by the said Master to the best pur- debts, and the chaser or purchasers that can be got for the same, to be allowed of plaintiffs in by the said Master, wherein all proper parties are to join as the Master causelo^b shall direct; and in order to such sale. It is ordered that all deeds considered as *nd writings in the custody or power of any of the parties be produced creditors to before the Master upon oath; And it is ordered that the moneys to 6666Z™T°i °^ ^I'ise by such sale, the amount thereof to be verified by affidavit, be an a t t P*^*^ ^^^'^ ^^^ bank with the privity of the Accountant- General of be taken of this court, to the Credit of the said cause, Gooch v. Haworth, subject what is due to to the further order of the court ; And it is ordered that the receiver the mortga- gf ^jjg j-gnts appointed in the cause of Gooch v. Haworth of the said I " testator's freehold and copyhold and leasehold estates be continued exceeding ^^d pass his accounts before the Master, and pay the balances to be 3000^. per an- reported due from him according to the order of the 28th day of May num declared 1828 ; And it is Ordered that the person appointed to collect and get vised to S h" '^ the said testator's personal estate be continued and pass his ac- for life, with counts, and pay the balance to be reported due from him into the remainder to bank with the privity of the said Accountant-General to the credit infee and^not °^ the cause, Gooch V. Haworth, subject to the further order of the Bubject to le- court; And it is ordered that the said Master do tax the costs of gacies; thesc suits of all parties to this time as between solicitor and client; be taken" f *" "^^^ ^^ '® ordered that the said Master be at liberty to make a separate what is due to report thereof, and also separate reports of any other of the matters the testator's hereby referred to him, as he shall think fit; And it is ordered that ceitain°deed-^ such costs when taxed, and also the sum of 200Z. the amount of the , ' costs charges and expenses found by the said Master's report of the count of the ^th day of December 1824 to have been incurred by the plaintiff G. dividends G., be paid out of the said sum of 150Z. part of the sum of 358Z. cash, DECREES AND DECRETAL ORDERS. 872 on the credit of the cause Gooch v. Haworth, and out of any other which would cash which may remain on the credit of the same cause; and in case ^*^®. accrued such cash shall not be sufficient, It is ordered that so much of the of the l^m. 3805Z. bank 3 per cent, annuities standing in the name of the Ac- stock in case countant-General of this court in trust in the same cause, as will with ^^""^ ^^^ °°* the said sum of 150Z. cash raise the amount of such costs when .^^"^^ x°° ' taxed and the said sum of 2001., be sold with the privity of the said shares in a Accountant- General, and one of the cashiers of the bank is to have theatre direct- notice and receive the money to arise by such sale, who upon receipt ^'^ i",^® ^°^^> thereof is to pay the same into the bank with the privity of the said ^ ^^ "j^g Accountant-General, to be there placed to the credit of the said cause ; therefrom to And out of the money to arise by such sale and such cash. It is be paid into ordered that such costs when taxed, and also the said sum of 200Z. * ^ ^° .' the amount of the costs charges and expenses found by the said Master's directeTirb^ report of the 6th day of December 1824 to have been incurred by the continued and said plaintiff G. G., be paid in manner following, viz. &c. &c. to P^ss their And for the purposes aforesaid the said Accountant-General is to ^'^•^o""'^ 5 draw on the bank according to the form prescribed by the act of par- parties" to\e liament, and the general rules and orders of this court in that case taxed as be- made and provided ; And any of the parties are to be at liberty to tween solici- apply to this court as there shall be occasion. tor and client; ^ '■ "^ Master to be at liberty to make separate reports; directions given out of what funds the costs are to be paid. APPEIDIX, ORDERS IN CHANCERY. COUKT OF CHANCEEY. 3d April, 1828. The Right Honorable John Lord Ltndhcrst, Lord High Chancellor of Great Britain, by and with the advice and assistance of the Right Honorable Sir John Leach, Master of the Rolls, and the Right Honorable Sir Lancelot Shadwell, Tice-Chancellor of England, doth hereby order and direct in manner following; that is to say : I. That every plaintiff, as well in a country cause as in a town cause, shall be at liberty, without affidavit, to obtain an order for a subpoena returnable immediately ; but such sub- poena in a country cause is to be without prejudice to the defendant's riglat to eight days time to enter his appearance after he has been served with the subpoena. II. That a writ of subpoena to appear, or to appear and answer, shall be sued out for each defendant, except in the case of husband and wife defendants ; and that the costs of all such writs shall be costs in the cause. III. That a defendant in a country cause shall no longer be permitted to crave the common dedimus, but shall either put in his answer within eight days after his appearance, or shall obtain the usual orders for time. IV. That in all cases, whether the defendant's answer be filed in term time or in vacation, the plaintiff shall be allowed two months to deliver exceptions to such answer ; but if the exceptions be not delivered within the two months, the answer shall thenceforth be deemed sufficient, and the plaintiff shall have no order to deliver exceptions nunc pro tunc. Y. That when exceptions taken to an answer for insufficiency are not submitted to, the plain- tiff may at the expiration of eight days after the exceptions are delivered, but not before, unless in injunction causes, refer such answer for insufficiency; and if he do not refer the same within the next six days he shall be considered as having abandoned the exceptions ; in which latter case such answers shall be thenceforth deemed sufficient. VI. That if the plaintiff do not within a fortnight after a defendant's second or third answer is filed, refer the same for insufficiency on the old exceptions, such answer shall thenceforth be deemed sufficient. VII. That if the plaintiffs do refer a defendant's second or third answer for insufficiency on the old exceptions, then the particular exception or exceptions to which he requires a further answer shall be stated in the order. 874 ORDERS IN CHANCERY. VIII. That if upon a reference of the exceptions the Master shall find the answer insufficient, he shall fix the time to be allowed for putting in a farther answer, and shall specify the same in his report, from the date whereof such time shall run, and it shall not be necessary for the plaintiff to serve a subpoena for the defendant to make a better answer ; and any de- fendant who shall not put in a further answer within the time so allowed, shall be in con- tempt, and be dealt with accordingly. IX. That if upon a reference of exceptions the answer be certified sufficient, it shall be deemed to be so from the date of the Master's report ; and if the defendant submit to answer with- out a report from the Master, the answer shall be deemed insufficient from the date of the submission. X. That upon a third answer being reported insufficient, the defendant shall be examined upon interrogatories to the points reported insufficient, and shall stand committed until such defendant shall have perfectly answered such interrogatories, and shall pay in addition to the 4Z. costs heretofore paid, such further costs as the Court shall think fit to award. XI. That no order shall be made for referring any pleading or other matter depending before the court for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or im- pertinent, nor unless such order be obtained within six days after the delivery of such exceptions. XII. That when any order is made for referring an answer for insufficiency, or for referring an answer or other pleading or matter depending before the Court for scandal or impertinence, the order shall be considered as abandoned unless the party obtaining the order shall pro- cure the Master's report within a fortnight from the date of such order, or unless the Master shall within the fortnight certify that a further time, to be stated in his certificate, is neces- sary in order to enable him to make a satisfactory report, in which case the order shall be considered as abandoned if the report be not obtained within the further time so stated ; and where such order relates to alleged insufficiency in an answer, such answer shall be deemed sufficient from the time when the order is to be considered as abandoned. XIII. That the plaintiff shall be at liberty before filing a replication to obtain, upon motion or petition without notice, one order for leave to amend the bill ; but no further leave to amend shall be granted before replication, unless the Court shall be satisfied by affidavit that the draft of the intended amendments has been settled, approved and signed by counsel, and that such amendments are not intended to be made for the purpose of delay or vexation, but because the same are considered to be material to the case of the plaintiff; such affi- davit to be made by the plaintiff, or one of the plaintiffs where there is more than one, or his her or their solicitor, or by such solicitor alone in case the plaintiff or plaintiffs, from being abroad or otherwise, shall be unable to join therein ; but no order to amend shall be made before replication, either without notice, or upon affidavit, in manner hereinbefore mentioned, unless such order be obtained within six weeks after the answer if there be only one defendant, or after the last of the answers if there be two or more defendants, is to be deemed sufficient. XIV. That every order for leave to amend the bill shall contain an undertaking by the plain- tiff to amend the bill within three weeks from the date of the order ; and in default thereof, such order shall become void, and the cause shall, as far as relates to any motion to dismiss the bill for want of prosecution, stand in the same situation as if such order had not been made. XV. That after a replication has been filed, the plaintiff shall not be permitted to withdraw it and to amend the bill without a special order of the Court for that purpose, made upon a motion of which notice has been given ; the Court being satisfied by affidavit that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into the bill. ORDERS IN CHANCERY. 875 XVI. That where the answer of a defendant is to be deemed sufficient, whether it be in terra time or in vacation, if the plaintiff or plaintiffs shall not proceed in the cause, the defend- ant shall be at liberty to move at the first seal after the following Term, upon notice, that the bill be dismissed with costs for want of prosecution ; and the bill shall accordingly be dismissed with costs, unless the plaintiff or plaintiffs shall forthwith file a replication, and appear upon such motion, and give an undertaking to speed the cause with effect in the usual form ; or, without filing a replication, shall appear upon such motion, and give an undertaking to hear the cause, as against the defendant making the motion, upon bill and answer ; or unless it shall appear that the plaintiff or plaintiffs is or are unable to proceed in the cause by reason of any other defendant or defendants not having sufficiently an- swered the bill, and that due diligence has been used to obtain a sufficient answer or answers from such other defendant or defendants, in which case the Court shall allow to the plain- tiff or plaintiffs such further time for proceeding in the cause as shall appear to the Court to be reasonable. XVII. That where the plaintiff files a replication without having been served with a notice of any motion to dismiss the bill for want of prosecution, the plaintiff shall serve the subpoena to rejoin and obtain his order for a commission within one week from the filing of the repli- cation ; and if such order be obtained in Term time, then such commission shall be at the latest returnable on the first return of the following Term ; and if such order be obtained in the Vacation, then such commission shall be returnable at the latest on the last return of the following Term ; and where such commission is returnable on or before tbe first return of the following Term, there the plaintiff shall give his rules to produce witnesses and pass publication in that Term, and shall set down his cause to be heard in the following Terra ; and where such coraraission is returnable on or before the last day of the following Terra, there the plaintiff shall give his rules to produce witnesses and pass publication in the next Term, and shall set down his cause to to be heard in the third Terra ; and if the plaintiif shall make any default herein, then upon application by the defendant upon motion or peti- tion without notice, the plaintifl''s bill shall stand disraissed out of Court with costs. XVIII. That publication shall not be enlarged except upon special application to the Court, sup- ported by affidavit, and at the costs of the party applying unless otherwise ordered by the Court. XIX. That whenever the time allowed for any of the following purposes, that is to say for amending any bill, for filing, delivering and referring exceptions to any answer, or for ob- taining a Master's report upon any exceptions, would expire in the interval between the last seal after Trinity Term and the first seal before Michaelmas Term, or between the last seal after Michaelmas Term and the first seal before Hilary Term, such time shall extend to and include the day of the general Seal then next ensuing.' XX. That service on the Clerk in Court of any subpoena to rejoin, or to answer an amended bill, or to hear judgment, shall be deemed good service. XXI. That the order nisi for confirming a report may be obtained upon petition as well as by motion, and that service thereof upon the Clerk in Court of any party shall be deemed good service upon such party. XXII. That every notice of motion, and every petition notice of which is necessary, shall be served at least two clear days before the hearing of such motion or petition. XXIII. That the order nisi for dissolving the common injunction may be obtained upon petition as well as by motion, and that ev«ry such order be served two clear days at least before the day upon which cause is to be shown against dissolving the injunction. XXIV. That when a defendant in contempt for want of answer, obtains upon filing his answer the common order to be discharged as to his contempt on payment or tender of the costs thereof, the plaintiff shall not, by accepting such costs, be compelled in the event of the 876 ORDERS IN CHANCERY. answer being insufficient, to re-commence the process of contempt against the defendant, but shall be at liberty to take up the process at the point to which he had before proceeded. XXV. That no witness to be examined before either of the Examiners for any party in a cause be in future produced at the seat of the Clerk in Court for the opposite party; but that a notice in writing containing the name and description of the witness be served there as here- tofore. XXVI. That the Examiner who shall take the examination in chief of any witness shall be at liberty to take his cross-examination also. XXVII. That where the same solicitor is employed for two or more defendants, and separate an- swers shall have been filed, or other proceedings had by or for two or more defendants sepa- rately, the Master shall consider in the taxation of such solicitor's bill of costs either between party and party or between solicitor and client, whether such separate answers or other proceedings were necessary or proper, and if he is of opininon that any part of the costs occasioned thereby has been unnecessarily or improperly incurred, the same shall be disallowed. XXVIII. That where a plaintiff obtains a decree with costs, there the costs occasioned to the plaintiff by the insufficiency of the answer of any defendant shall be deemed to be part of the plaintiff's costs in the cause, such sum or sums being deducted therefrom as were paid by the defendant according to the course of the Court, upon the exceptions to the said an- swer being submitted to or allowed. XXIX. That where the plaintiff is directed to pay to the defendant the costs of the suit, there the costs occasioned to a defendant by any amendment of the bill shall be deemed to be part of such defendant's costs in the cause (except as to any amendment which may have been made by special leave of the Court, or which shall appear to have been rendered neces- sary by the default of such defendant;) but there shall be deducted from such costs any sum or sums which may have been paid by the plaintiff according to the course of the Court at the time of any amendment. XXX. That when upon taxation a plaintifi'who has obtained a decree with costs is not allowed the costs of any amendment of the bill, upon the ground of its having been unnecessarily made, the defendant's costs occasioned by such amendment shall be taxed, and the amount thereof deducted from the costs to be paid by the defendant to the plaintiff. XXXI. That upon the allowance of any plea or demurrer, the plaintitf or plaintiffs shall pay the defendant or defendants the taxed costs thereof; and when such plea or demurrer is to the whole bill, then the further taxed costs of the suit also ; unless in the case of a plea the plaintiff or plaintiffs shall undertake to reply thereto, and then the costs shall be reserved, or unless the Court shall think fit to make other order to the contrary. XXXII. That upon the overruling of any plea or demurrer, the defendant or defendants shall pay to the plaintiff or plaintiffs the taxed costs occasioned thereby, unless the Court shall make other order to the contrary. XXXIII. That when two Counsel appear for the same party or parties upon the hearing of any cause or matter, and it shall appear to the Master to have been necessary or proper for such party or parties to retain two Counsel to appear, the costs occasioned thereby shall be allowed, although both of such Counsel may have been selected from the Outer Bar. XXXIV. That when a cause which stands for hearing is called on to be heard, but cannot be de- cided by reason of a want of parties or other defect on the part of the plaintiff, and is therefore struck out of the paper, if the same cause is again set down, the defendant or de- fendants shall be allowed the taxed costs occasioned by the first setting down although he or they do not obtain the costs of the suit. ORDERS IN CHANCERY. 877 XXXV. That where a cause being in the paper for hearing is ordered to be adjourned upon pay- ment of the costs of the day, there the party to pay the same, whether before the Lord High Chancellor, the Master of the Rolls, or the Vice-Ohancellor, shall pay the sum of 101. unless the Court shall make other order to the contrary. XXXVI. That whenever upon the hearing of any cause or other matter it shall appear that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to deliver any paper necessary for the use of the Court, and which according to its practice ought to have been delivered, such solicitor shall personally pay to all or any of the parties such costs as the Court shall think fit to award. XXXVII. That the sworn Clerks of the Court and the Waiting Clerks shall not be entitled to rer ceive any fees for attendance in Court, except in cases where they shall actually attend, and where their attendance shall be necessary. XXXVIII. That where any cause which is set down to be heard either in the Court of the Lord Chancellor or in the Court of the Master of the Rolls, shall be afterwards set down to be heard in the other of the said two Courts, there the solicitor for the plaintiff shall certify the fact to the Registrar of the Court where the cause was first set down,, who shall cause an entry thereof to be made in his book of causes, opposite to the name of such cause; and the solicitor for the plaintiff shall be allowed a fee of six shillings and eight pence for so certifying the fact, if he shall certify the same within eight days after the said cause is so set down a second time. XXXIX. That where any cause shall become abated, or shall be compromised after the same is set down to be heard in either of the said two Courts, the solicitor for the plaintiff shall also certify the fact, as the case may be, to the Registrar of the Court where the cause is so set down, who shall in like manner cause an entry thereof to be made in his cause book, and the solicitor for the plaintiff shall be allowed the same fee of six shillings and eight pence for such certificate, if he shall certify the fact as soon as the same shall come to his know- ledge. XL. That the penal sum in the bond to be given as a security to answer costs by any plaintiff who is out of the jurisdiction of the Court, be increased from forty pounds to one hundred pounds. XLI. That the deposit upon exceptions to a Master's report shall be increased to £10, to be paid to the adverse party if the exceptions are overruled, in which case the exceptant shall also pay the further taxed costs occasioned by such exceptions, unless the Court shall other- wise order ; but in case the exceptant shall in part succeed, the deposit shall be dealt with and costs shall be paid as the Court shall direct. XLII. That the deposit upon every petition of appeal or rehearing be increased to £20, to be paid to the adverse party when the decree or order appealed from is not varied in any material point, together with the further taxed costs occasioned by the appeal or re-hearing, unless the court shall otherwise order. XLIII. That for the purpose of enabling all persons to obtain precise information as to the state of any cause, and to take the means of preventing improper delay in the progress thereof any Clerk in Court shall at the request of any person, whether a party or not in the suit or matter inquired after, procure and furnish a certificate from the Six Clerk's Office, specify- ing therein the dates and general description of the several proceedings which have been taken in any cause in the said office, whether such Clerk in Court be or not concerned as Clerk in Court in the cause, and that he shall be entitled to receive the sum of three shil- lings and four pence for such certificate, and no more. 878 ORDERS IN CHANCERY. XLIV. That whenever a person who is not a party appears in any proceeding either before the Court or before the Master, service upon the solicitor in London by whom such party ap- pears, whether such solicitor act as principal or agent, shall be deemed good service, except in matters of contempt requiring personal service. XLV. That clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may at any time before enrolment be corrected upon petition, without the form and expense of a rehearing. XLVI. That every application to stay proceedings upon any decree or order which is appealed from, be made first to the Judge who pronounced the decree or order. XL VII. That every application for the new trial of any issue at law directed by a Judge of this Court, be first made to the Judge who directed such issue. XL VIII. That where any decree or order referring any matter to a Master is not brought into the Master's office within two months after the same decree or order is pronounced, there any party to the cause, or any other party interested in the matter of the reference, shall be at liberty to apply to the Court by motion or petition, as he may be advised, for the purpose of expediting the prosecution of the said decree or order. XLIX. That every Master shall enter in a book to be kept by him for that purpose, the name or title of every cause or matter referred to him, and the time when the decree or order is brought into his oflSce, and the date and description of every subsequent step taken before him in the same cause or matter, and the attendance or non-attendance of the several par- ties on each of such steps, so that such book may exhibit at one view the whole course of proceeding which is had before him in each particular cause and matter. L. That upon the bringing in of every decree or order, the solicitor bringing in the same shall take out a warrant appointing a time which is to be settled by the Master, for the purpose of the Master taking into consideration the matter of the said decree or order, and shall serve the same upon the Clerks in Court of the respective parties, or upon the parties or their solicitors in cases where they shall have no Clerks in Court. LI. That at the time so appointed for considering the matter of the said decree or order, the Master shall proceed to regulate, as far as may be, the manner of its execution ; as for example, to state what parties are entitled to attend future proceedings, to direct the neces- sary advertisements, and to point out which of the several proceedings may be properly going on pari passu, and as to what particular matters interrogatories for the examination of the parties appear to be necessary, and whether the matters requiring evidence shall be proved by affidavit or by examination of witnesses, and in the latter case, if necessary, to issue his certificate for a commission ; and if the Master shall think it expedient so to do, he shall then fix a certain time or certain times within which the parties are to take any cer- tain proceeding or proceedings before him. LII. That upon any subsequent attendance before him in the same cause or matter, the Master, if he thinks it expedient so to do, shall fix a certain time or certain times within which the parties are to take any other proceeding or proceedings before him. LIU. That where some or one but not all the parties do attend the Master at an appointed time, whether the same is fixed by the Master personally or upon a warrant, there the Master shall be at liberty to proceed ex parte if he thinks it expedient, considering the nature of the case, so to do. OKDEES IN CHANCERY. 879 LIT. That where the Master hag proceeded ex parte, such proceedings shall not in any manner be reviewed in the Master's ofBce, unless the Master, upon a special application made to him for that purpose by a party who was absent, shall be satisfied that he was not guilty of wilful delay or negligence, and then only upon payment of all costs occasioned by bis non- attendance ; such costs to be certified by the Master at the time, and paid by the party or his solicitor before he shall be permitted to proceed on the warrant to review. LV. That where a proceeding fails by reason of the non-attendance of any party or parties, and the Master does not think it expedient to proceed ex parte, there the Master shall be at liberty to certify what amount of costs, if any, he thinks it reasonable to be paid to the party or parties attending by the absent party or parties, or by his or their solicitor or soli- citors, or Cl.erk or Clerks in Court, personally, as the Master in his discretion shall think fit ; and upon motion or petition, without notice, the Court will make order for the payment of such costs accordingly. LTI. That where the party actually prosecuting a decree or order does not proceed before the Master with due diligence, there the Master shall be at liberty, upon the application of any other party interested either as a party to the suit, or as one who has come in and estab- lished his claim before the Master under the decree or order, to commit to him the prosecu- tion of the said decree or order ; and from thenceforth, neither the party making default, nor his solicitor, shall be at liberty to attend the Master as the prosecutor of the said decree or order. LVII. That upon any application made by any person to the Court, the Master, if required by the person making the application, shall, in as short a manner as he conveniently can, certify to the Court the several proceedings which shall have been had in his office in the same cause or matter, and the dates thereof. LTIII. That every Master shall be at liberty, without order, to proceed in all matters de die mi diem at his discretion. LIX. That every warrant for attendance before the Master shall be considered as peremptory, and the Master shall be at liberty to continue the attendance beyond the hour and during such time as he thinks proper, and shall be empowered to increase the fee for the solicitor's attendance in proportion to the time actually occupied ; and in case the Master shall not be attended by the solicitor, or a competent person on the behalf of the solicitor, of any party, the Master shall in such case disallow the usual fee for the solicitor's attendance, taking care either in allowing an increased fee or disallowing the usual fee, to mark his determi- nation in his attendance Book, and also on the warrant for attendance. LX. That where by any decree or order of the Court, books, papers, or writings are directed to be produced before the Master for the purposes of such decree or order, it shall be in the discretion of the Master to determine what books papers or writings are to be produced, and when and for how long they are to be left in his office ; or in case he shall not deem it necessary that such books, papers, or writings should be left or deposited in his offices, then he may give directions for the inspection thereof by the parties requiring the same, at such time and in such manner as he shall deem expedient. LXI. That all parties accounting before the Masters shall bring in their accounts in the form of debtor and creditor : and any of the other parties who shall not be satisfied with the ac- counts so brought in, shall be at liberty to examine the accounting party upon interroga- tories as the Master shall direct. LXII. That all such accounts when passed and settled by the Master shall be entered in a book to be kept for that purpose in the Master's Office, as is now the practice with respect to Receiver's accounts, and with proper indexes, in order to be referred to as occasion may require. 880 ORDERS IN CHANCERY. LXIII. That the Master in acting upon the Order of the Court of 23d April, 1796, shall be at liberty upon the appointment of a receiver, or at any time subsequent thereto, in the place of annual periods for the delivery of a receiver's accounts and payment of his balances, to fix either longer or shorter periods at his discretion; and when such other periods are fixed by the Master, the regulations and principles of the said Order shall in all other respects be applied to the said receiver. LXIV. That in every Order directing the appointment of a receiver of a landed estate, there be inserted a direction that such receiver shall manage, as well as set and let, with the appro- bation of the Master; and that in acting under such an Order it shall not be necessary that a petition be presented to the Court in the first instance, but the Master, without special Order, shall receive any proposal for the management or letting of the estates from the parties interested, and shall make his report thereon, which report shall be sijbmitted to the Court for confirmation in the same manner as is now done with respect to reports on such matters made upon special reference ; and until such report be confirmed, it shall not give any authority to the receiver. LXV. That all aflidavits which have been previously made and read in Court upon any pro- ceeding in a cause or matter may be used before the Master. LXVI. That where upon an inquiry before the Master affidavits are received, there no afSdavit in reply shall be read, except as to new matter which may be stated in the aflSdavits in an- swer, nor shall any farther affidavits be read unless specially required by the Master. LXVII. That the Master shall not receive further evidence as to any matter depending before him after issuing the warrant on preparing his report ; but that he shall not issue such warrant without previously requiring the parties to show cause why such warrant should not issue. LXVlIi That no warrant to review any proceeding in the Master's Office shall be allowed to be taken out, except by permission of the Master, upon special grounds to be shown to him for that purpose; and the costs of such review when allowed shall be in the discretion of the Master, and shall be paid by and to such persons and at such time as he shall direct. LXIX. That the Master shall have power at his discretion to examine any witness %'iva voce, and in such case the subpoena for the attendance of the witness shall, upon a note from the Master, be issued from the Subpoena Office ; and that the evidence upon such viva voce ex- amination shall be taken down by the Master, or by the Master's clerk in his presence, and preserved in the Master's Office, in order that the same may be used by the Court if neces- sary. LXX. That in all matters referred to him, the Master shall be at liberty upon the application of any party interested, to make a separate report or reports from time to time as to him shall seem expedient ; the costs of such separate reports to be in the discretion of the Court, LXXI. That where a Master shall make a separate report of debts or legacies, there the Master shall be at liberty to make such certificate as he thinks fit with respect to the state of the assets ; and every person interested shall thereupon be at liberty to apply to the Court as he shall be advised. LXXII. That the Master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require, the evidence upon such examination being taken down at the time by the Master or by the Master's clerk in his presence, and pre- served, in order that the same may be used by the Court if necessary. ORDERS IN CHANCERY. 881 LXXIII. That if any party wishes to complain of any matter introduced into any state of facts, afiSdavit or other proceeding before the Master, on the ground that it is scandalous or im- pertinent, or that any examination taken in the Master's oEBce is insufficient, he sh^U be at liberty, without any order of reference by the Court, to take out a warrant for the Master to examine such matter and the Master shall have authority to expunge any such matter which he shall find to be scandalous or impertinent. LXXIV. That the Master in deciding on the sufBciency or insufficiency of any answer or examina- tion, shall take into consideration the relevancy or materiality of the statement or question referred to. LXXT. That in cases where estates or other property are directed to be sold before the Master, the Master shall be at liberty, if he shall think it for the benefit of the parties interested, to order the same to be sold in the country at such place and by such person as he shall think fit. LXXVI. That where a Master is directed to settle a conTeyance, or to tax costs, in case the parties difier about the same, there the party claiming the costs, or entitled to prepare the convey- ance, shall bring the bill of costs or the draft of the conveyance into the Master's office, and give notice of his having so done to the other party ; and at any time within eight days after such notice, such other party shall have liberty to inspect the same without fee, and may take a copy thereof if he thinks fit ; and at or before the expiration of the eight days, or such further time as the Master shall in his discretion allow, he shall then either agree to pay the costs or adopt the conveyance, as the case may be, or signify his intention to dis- pute the same ; and in case he dispute the same, the Master shall tlieu proceed to tax the costs or settle the conveyance, according to the practice of the Court. LXXVII. That whenever in any proceeding before a Master the same solicitor is employed for two or more parties, such Master may at his discretion require that any of the said parties shall be represented before him by a distinct solicitor, and may refuse to proceed until such party is so represented. LXXVIII. That such of the foregoing Orders as limit or allow any specified time for any party to take any proceeding, or for any other purpose, shall only apply to cases where the period from which such specific time is to be computed shall be on or subsequ-ent to the first day of Easter Term now next ensuing. LXXIX. That such of the foregoing Orders as relate to the manner in which the costs of any suit or proceeding are to be taxed, and to the amount of costs to be paid on any occasion, shall not apply to any costs which shall have been incurred, or to the costs of any proceeding which shall have been had or taken previously to the first day of Easter Term next ensuing. LXXX. That such of the foregoing Orders as relate to the course of proceeding in the offices of the Masters of the Court, or to the authority of the Masters, shall have effect from and after the first day of Easter Term next ensuing, and shall be acted upon by the Masters in all cases except where from the then advanced stage of any proceeding they are not practically applicable. LXXXI. That subject to the regulations hereinbefore specified, the foregoing Orders shall take effect as to all suits whether now depending or hereafter commenced, on the first day of Easter Term next. Ltndhohst, C. John Leach, M. E. Lancelot Shadwell, V. 0. INDEX OEDEES IN CHANCEEY. OEDBK. ACCOUNTS, to be carried in before the Master in the form of debtor and creditor. . . 61 ■when passed and settled by the Master, to be entered in a book to be Isept in the Master's Office. . . . . . . . . .62 AFFIDAVIT, of materiality of amendments to be made upon a second application for leare to amend bill before replication filed. ...... 13 having been read in court may be used before the Master. . . .65 in reply to affidavits upon an inquiry before the Master, not to be read except as to new matter stated in the affidavits in answer, nor any further affidavits unless , required by the Master. ....... 66 AMENDMENT, before replication, one order for leave to amend obtainable as of course. . 13 no further leave to be granted before replication, except on affidavit. . . ib. within what time an order to amend before replication must be obtained. . ib. order for leave to amend to contain an undertaking to amend within three weeks from the date of the order. ....... 14 no amendment after replication, except on special application supported by affidavit. ......... 16 time for amending bill expiring in the vacation after Trinity or Michaelmas Term, to extend to and include the day of the ensuing general seal. . . 19 ANSWER, in a country cause to be put in within eight days after appearance, unless orders for time obtained. ........ 3 to be deemed sufficient unless exceptions thereto delivered within two months. 4 not to be referred for insufficiency until the expiration of eight days (except in injunction causes,) if not referred within the next six days to be thenceforth deemed sufficient. ........ 5 a second or third answer, if not referred for insufficiency on the old exceptions within a fortnight after it is filed, to be thenceforth deemed sufficient. . 6 when found insufficient, the Master to fix a time for putting in a further answer. 8 when certified sufficient, to be deemed so from the date of the Master's report. 9 defendant submitting to answer without a report, the answer to be deemed in- sufScieut from the date of the submission. . . . . .lb. if a third answer be reported insufficient, the defendant to be examined on inter- rogatories, and to stand committed until the same are fully answered, and to pay additional costs. ........ 10 when referred for insufficiency, scandal, or impertinence, the Master's report to be obtained within a fortnight from the date of the order, or within such further time as Master shall certify is necessary, otherwise the order to be considered as abandoned, and from such time, in case of alleged insufficiency, the answer is to be deemed sufficient. ....... 12 Master on deciding on sufficiency or insufficiency of, to consider the relevancy or materiality of the statement or question. ..... 74 (See tit. Costs.) APPEAL.— (See titles Costs; Deposit.) ...... 42 884 INDEX TO THE ORDERS IN CHANCERY. CAUSE, ORDER. time for setting down a cause for hearing. . . . , .11 when set down to be heard in the Lord Chancellor's court, and afterwards in the court of the Master of the Rolls, or vice versa, the plaintiff's solicitor to certify the fact to the Registrar, and to be allowed 6s. Sd. for so doing, if certified within eight days. ........ 38 . when abated or compromised after it is set down to be heard, the plaintiff's so- licitor to certify the fact to the Registrar, and to be allowed 6s. 8d. if certified as soon as possible. ........ 39 CLERK IN COURT, service on, in what cases good service. ..... 20, 21, 50 fees not to be allowed to the sworn clerks and waiting clerks for attendance in court, except their attendance necessary. . . . . . 3T upon request of any person, to furnish certificate of dates and description of the proceedings in any cause. ....... 43 may be directed to pay costs personally in the discretion of the Master where a proceeding fails by reason of non-attendance of any party. . . .55 COMMISSION, order for to be obtained by plaintiff within one week after filing replication. . IT order for, when obtained in term feme, the commission to be returnable on the first return of the following term at the latest. . . . . . ib. order for, when obtained in vacation, the commission to be returnable on the last return of the following term at the latest. . . . . . ib. CONTEMPT, defendant to be in contempt in default of putting in a further answer within the time directed by the Master, after exceptions allowed to the former answer. . 8 process of, may be taken up at the point to which the plaintiff had before pro- ceeded, in the event of the answer being found insufficient, notwithstanding he accepted costs upon the defendant's discharge. . . . .24 COSTS, of subpoenas to be costs in the cause. ...... 2 upon a third answer reported insufficient, to be paid as the court thinks fit. . 10 acceptance of, upon the defendant's discharge upon filing his answer, not to com- pel plaintiff to re-commence the process of contempt in the event of the answer being found insufficient. ....... 24 on taxation of, the Master to consider the necessity or propriety of separate an- swers filed or other proceedings had, where one solicitor was employed by several defendants. . . . . . . . .27 occasioned to plaintiff by insufficiency of answer, to be deemed part of his costs in the cause. ......... 28 occasioned to a defendant by any amendment of bill (excepting in certain cases) to be deemed part of his costs in the cause. . . . .29 occasioned to a defendant by amendment of bill, to be deducted from the amount to be paid by a defendant in cases where upon taxation plaintiff has not been allowed the costs of such amendment. . . . . .30 of plea or demurrer to be taxed upon allowance thereof, and if to the whole bill the further taxed costs of the suit (unless otherwise ordered.) . . 31 occasioned by plea or demurrer, when taxed to be paid, upon the overruling thereof to plaintiff (unless otherwise ordered.) . . . .32 occasioned by retaining two counsel, although selected from the outer bar, to be allowed by the Master at his discretion. ..... 33 occasioned to defendant by cause being struck out of the paper, through defect of parties, or otherwise on the part of plaintiff, to be allowed to the defendant. 34 of the day fixed at £10 (unless otherwise ordered) where the cause is ordered to be adjourned upon payment of the costs of the day. . . . .35 in the discretion of the court to be paid by the solicitor where the hearing of any cause or matter is adjourned by reason of any neglect in attendance or omis- sion on his part. ........ 36 penalty of bond to answer costs, where plaintiff is out ofthe jurisdiction, increased to 1001. ......... 40 occasioned by exceptions to report, when overruled, to be taxed and paid by the exceptant (unless otherwise ordered.) . . . . .41 occasioned by a petition of appeal or re- hearing, to be taxed and paid to the adverse party, where the decree or order is not varied in any material point (unless otherwise ordered.) ....... 42 occasioned by the non-attendance of a party applying afterwards to the Master INDEX TO THE ORDERS IN CHANCERY. 885 COSTS, continued. oedbk. to review the proceedings, to be paid before tlie warrant to review is pro- ' ceeded oa. ......... 54 when certified by the Master as reasonable to be paid to the party attending on the failure of any proceeding by reason of non-attendance of any party, order for payment to be made as of course. ...... 55 of reviewing proceedings when allowed, to be in the discretion of the Master. . 68 of separate reports to be in the discretion of the court. . . . .70 directed to be taxed in case parties differ, the bill to be brought into the Mas- ter's Office, and within a limited time the other party to agree to pay same, otherwise the amount thereof to be taxed. ..... 76 COUNSEL.— (See tit. Costs.) 33 DECREE, clerical mistakes in, or errors arising from accidental slip or omission, to be corrected at any time before enrolment upon petition. . . .45 application to stay proceedings, to be made first to the judge who pronounced the decree. ......... 46 if not brought into Master's Office within two months, any party interested to be at liberty to apply for the purpose of expediting the prosecution thereof. . 48 Master to settle the time for taking into consideration the matter of. . . 50 Master to regulate the manner of execution of, and proceedings under the same. 51 if not prosecuted with due diligence, the Master to be at liberty to commit the prosecution thereof to any other person interested. . . . .58 DEDIMUS, not to be allowed, to take the answer of defendant in a country cause. . . 3 DEMURRER.— (See tit. Costs.) . . . . . . . 31, 2 DEPOSIT, upon exceptions to a report increased to £10. . . . . 41 upon a petition of appeal or re-hearing increased to £20. . . .42 DISMISSAL, of bill, when defendant to be at liberty to move for. . . . . 16, 17 EVIDENCE, as to any matter depending before a Master not to be received by him after issu- ing the warrant on preparing his report. . . . . .67 EXAMINATION, of creditors or other claimants in the Master's Office to be taken upon written interrogatories or viva voce. . . . . . . .72 the Master to be at liberty to examine as to any alleged insufficiency of, with- out any order of reference. ....... 73 the Master, in deciding on sufficiency or insufficiency of, to consider the rele- vancy or materiality of the question. ...... 74 EXCEPTIONS,— For INSUFFICIENCY, see tit. Answer. for scandal or impertinence must be in writing and signed by counsel, and the order for referring the same must be obtained within six days after delivery thereof. . . . . . . . . . .11 time for delivering exceptions expiring in the vacation after Trinity or Michael- mas Term, to extend to and include the ensuing general seal day. . . 19 INJUNCTION, order nisi for dissolving the common injunction obtainable upon petition as well as motion ; the same to be served twb clear days before the day upon which cause is to be shown. ........ 23 MASTER, to keep a register of the name and nature of all proceedings in every cause or matter referred to him. ........ 49 to settle the time for taking into consideration the matter of every decree or order. .......... 50 to regulate the execution of the decree or order and all future proceedings. . 51 upon any subsequent attendance, to fix the time for other proceedings if expe- dient. .......... 52 to be at liberty to proceed ex parte in default of any party attending. . . 53 having proceeded ex parte, such proceeding not to be reviewed by him unless, upon special application by the party absent, he is satisfied that there was no wilful delay or negligence, and upon payment of all costs. . . .54 a proceeding failing by reason of non-attendance, the Master to certify the amount of costs to be paid to the party attending and by whom, and order for payment thereof to be made as of course. ..... 55 61 INDEX TO THE ORDEKS IN CHANCERY. MASTER, continued. ordee. a decree or order not prosecuted with due diligence, the Master may commit the prosecution thereof to any party interested. . . . .56 upon any application to the court, the Master if required to certify to the court the proceedings had in his office. ...... 57 may proceed de die in diem in all matters. . . . . .58 every warrant of attendance to be peremptory . . . . 59 the Master may continue the attendance beyond the hour, and increase the soli- citor's fee accordingly, and in case of his non-attendance or of neglect on his part, his usual fee to be disallowed. ...... ib. when books, &c. directed to be produced before he is to determine as to what particular books, &c. and when and how long to be left at his office, or as to the time and manner of inspection. ...... 60 to direct as to the examination of any accounting party. . . .61 having passed and settled any accounts, the same to be entered in a book to be kept in the Master's Office. . . . . . . . .62 to be at liberty to fix the periods for the delivery of a receiver's accounts and payment of his balances. ....... 63 may receive proposals for the management or letting of an estate from parties interested, without special order, and make his report thereon. . . 64 not to receive further evidence after issuing the warrant on preparing his report, nor to issue such warrant without previously requiring the parties to show cause against it. ........ 67 no warrant to review any proceeding in the Master's Office to be taken out ex- cept by permission, upon special grounds shown, the costs of such review to be in the discretion of the Master. ...... 68 may examine any witness viva voce. ■ . . . . . .69 to be at liberty in all matters referred to him to make separate reports upon the application of any party interested. . . . . . .70 to certify as to the state of the assets, upon making a separate report of debts or legacies. ......... 11 may examine creditors or other claimants upon written interrogatories or viva voce. .......... 72 to be at liberty to expunge matter found in any proceeding before him to be scandalous or impertinent, upon a warrant taken out for such purpose, with- out any order of reference. ....... 73 in deciding as to sufficiency of answer or examination to consider the relevancy or materiality of the statement or question. . . . . .74 may direct sales to be made in the country. ■ . . . .75 course of proceeding before, when directed to settle a conveyance, or to tax costs in case the parties diffisr. ....... 76 may require parties to be represented by distinct solicitors, and may refuse to proceed until so represented. ....... 77 NEW TRIAL, application for, to be first made to the Judge who directed the issue. . . 47 NOTICE, of motion or of petition where necessary, to be sen-ed two clear days before the hearing thereof. . . . . . . . . .22 of name and description of witness to be examined, to be'left at the seat of the clerk in court for the opposite party. ...... 25 . ORDER, to deliver exceptions nMnc^ro tome not to be allowed. .... 4 nisi for confirming a report obtainable upon petition, and service thereof upon the clerk in court of any party to be deemed good service. . . .21 nisi for dissolving the common injunction obtainable upon petition ; such order to be served two clear days before the day for showing cause. . . 23 PETITION, of which notice is necessary, to be served two clear days before the hearing thereof. .......... 22 PLEAS.— (See tit. Costs.) . . . . . . . . 31, 32 PROCEEDINGS, upon any decree or order, application to stay, to be made first to the Judge who pronounced the decree or order. ...... 46 PUBLICATION, when plaintiif must give rules to pass. . . . . . .17 not to be enlarged except upon special application. . . . .18 INDEX TO THE ORDERS IN CHANCERY. 887 EEOEIVER, ORDER, the Master to be at liberty to fix any periods at his discretion for delivery of a receiver's accounts and payment of his balances. . . . .63 of landed estate, in the order for appointment of direction to be inserted that such receiver may manage as well as set and let. . . . .64 EEGISTRAR, upon certificate to him of cause being set down to be heard in Lord Chancellor's Court, after it had been set down to be heard at the Rolls, or vice versa, to cause an entry thereof to be made in his book of causes. . . .38 so also where a cause has become abated, or been compromised after it had been set down to be heard. ........ 39 EEHEARING.^(See tit. i3fpos!<.) ....... 42 not requisite for correction of clerical or accidental errors in decrees or decretal orders before enrolment. ....... 45 REPLICATION, not to be withdrawn and bill amended without a special order upon motion with notice. .......... 15 REPORT, upon a reference for insufficiency, scandal, or impertinence, to be procured within a fortnight from the date of the order for reference, or within such further time as the Master may certify to be necessary. . . . 12 the Master to be at liberty in all matters referred to him, to make separate re- ports upon application of any party interested. . . . .10 upon making a separate report of debts or legacies, the Master to certify as to the state of the assets. ........ 11 REVIEW, qf proceedings had ex parte in the Master's Office, not to be allowed, unless upon special application to the Master by the party absent he is satisfied that there was no wilful delay or ne'gllgence, and upon payment of all costs. . 54 no warrant to review any proceeding in the Master's office to be taken out, except by permission upon special grounds shown ; the costs of such review to be in the discretion of the Master. ...... 68 SALE, estates or other property directed to be sold before the Master, may be sold in the country if the Master thinks fit. . . . . . .75 SCANDAL OR IMPERTINENCE, no order for referring any pleading or other matter for, to be made, unless ex- ceptions are taken in writing and signed by counsel. . . . .11 such order to be obtained within six days after delivery of exceptions. . . ib. (And see titles Report; Warrant.) . . . . . 12, '?3 SERVICE, on clerk in court, of subpoena to rejoin or to answer an amended bill or to hear judgment, to be deemed good. ....... 20 on clerk in court of order nisi for confirming report, to be deemed good. . 21 upon the solicitor in London of a person appearing in any proceeding though not a party, to be deemed good service, except in matters of contempt. . . 44 SOLICITOR, where appearing for two or more defendants not to be allowed on taxation the costs of separate answers or other proceedings, if in the opinion of the Master improperly incurred. ........ 27 to pay personally such costs as the court shall think fit when upon the hearing of any cause or other matter the same cannot proceed by reason of his non- attendance, or not having delivered any paper necessary for the use of the court. .......... 36 to certify to the Registrar when a cause set down to be heard in the court of the Lord Chancellor is afterwards set down to be heard at the Rolls, or vica versa; if certified within eight days, to be allowed 6s. 8d. . . . .38 to certify to the Registrar where a cause set down to be heard has afterwards become abated or been compromised ; if certified as soon as possible, to be allowed 6s. ad. . . ■ ■ ■ ■ ■ ■ .39 in London, of a person appearing in any proceeding though not a party, service upon to be deemed good service, except in matters of contempt. . . 44 bringing in a decree or order to take out a warrant appointing a time for the purpose of taking into consideration the matter of such decree or order. . 50 may be directed to pay costs in the discretion of the Master, where a proceeding fails by reason of non-attendance of any party. . . . .55 INDEX TO THE ORDERS IN CHANCERY. SOLICITOR, continued. order. fees of, may be increased by the Master, where attendance before him continues beyond an hour. ........ 69 if not attending personally or by a competent person upon any warrant before the Master, his usual fee may be disallowed. . . . . . ib. where employed in any proceeding before a Master for two or more parties, the Master may require any party to be represented by a distinct solicitor. . 11 SUBP(ENA, order for, returnable immediately, may be sued out in a country cause. . 1 writ of, must be sued out for each defendant, except in the case of husband and wife defendants. ........ 2 to make a better answer not necessary. ...... 8 to rejoin, to be served within one week from filing replication. . . .17 to rejoin, or to answer an amended bill, or to hear judgment, to be served on clerk in court. ......... 20 for attendance of witness before a Master to issue, upon a note from him. . 69 TIME, from what, the Orders are to take effect. . . . . 78, 81 UNDERTAKING TO SPEED, when to be given, ........ 16 VIVA VOCE EXAMINATION, evidence upon, to be taken down by the Master or in his presence and preserved. 69, 72 WARRANT, appointing a time for taking into consideration the matter of a decree or order, to be taken out by the solicitor bringing in such decree. ... .50 on preparing report, not to issue without requiring parties to show cause against it. ......... 67 to be taken out for the Master to examine as to any alleged scandal or imperti- nence in any proceeding before him, or as to alleged insufficiency of an ex- amination. ......... 73 WITNESSES, when rules to produce, must be given. ...... 17 not to be produced at seat of clerk in court for the opposite party, but notice of their names and descriptions to be served there. . . . .25 may be cross-examined by the same examiner as took their examination in chief. 26 may be examined vivS. voce by the Master. ... . . 69 INDEX TO THE PEECEDENTS AND NOTES. ABATEMENT, bill of revivor in general necessary to warrant any proceedings after abatement, 413, u. ABSTRACT, delivery of, statements of, in bills, 8, 10, 18. interrogatories to prove delivery of, or matters relative thereto and to the title, 688, 689. interrogatory to prove abstracts as exhibits, 709. ACCESS, of husband to wife, interrogatory to prove, and also his residence, 689. ACCOUNT, bill for an account of moneys advanced by defendant to plaintiff, also of sums paid on account, that the amount paid may be set-off against the amount of moneys advanced and that upon payment of the balance, certain bonds may be delivered up to be can- celled, 53. bill by assignees for an account of testator's personal estate, debts, &c., and to have one moiety of the clear residue carried over to the bankrupt's account, subject to the widow's life interest, 100. bill by an assignee for an account of mercantile dealings and transactions between the defendant and the bankrupt, and payment of the balance, 102. bill by assignees for an account of the proceeds of a shipment of goods made by the bankrupt, 106. of debts due to defendant, interrogatory to prove delivery of, to a deceased person, in what language v|f itten, the copy in witness's possession made by his direction, and his observations written thereon ; also to prove the copy as an exhibit, requiring the witness to make a translation thereof distinguishing the hand- writing thereof and of the observations written thereon, 689, 690. existing unsettled, interrogatory to prove, and applications for payment, 691. interrogatory to prove a statement and settlement of accounts between plaintiff and defendants, respecting the effects of a deceased person, and payment of the balance, 691. interrogatory to prove delivery of an attorney's bill, ib. interrogatories for examination of an accountant, relative to an account made out by him of the dealings between deceased persons ; also to prove as exhibits the books of account delivered to him for that purpose, and the copy made by him of such account, 716. interrogatories to prove the hand-writing of and also as an exhibit the diary or account kept by a land agent, 718. interrogatory to prove that a land agent kept a diary or account of his agency, and up to what time, and whether he discontinued keeping the same, 733. interrogatory to prove how and when the balance-sheets of partnership accounts were made up, to whom delivered, and why, 744. statement of a prayer for account of moneys due to the plaintiff under certain agree- ments, in pursuance whereof he had rebuilt the premises in question; also to have a lease executed to him, and for an account of the arrears of the rents agreed to be paid to him by the defendants, 830. decree opening stated accounts and directing a general account to be taken of all deal- ings and transactions between the plaintiffs and defendants, 823. ACCOUNTANT GENERAL, form of the Register's certificate to the Accountant-General of the amount of stock standing in his name, 796, n. 890 INDEX. ACCUMULATIONS, statement (in a petition) of accumulations in respect of dividends on stock, the inyest- ment thereof from time to time, and the amount of stock produced thereby, standing in the name of the Accountant-General, 816. ACKNOWLEDGMENTS, Interrogatory to prove production of a book to a person, containing acknowledgments or memorandums signed by him, and what passed relative thereto, 691. interrogatory to prove Jhe acknowledgment made by a person on receiving a sum of money, 698. interrogatory to prove acknowledgments or admissions made by an obligor as to the person for whose benefit the bond was intended, 765. ACT OP PAELIAMENT, statements of application for, of the act obtained, of sales in pursuance thereof, and payment of the purchase-moneys into the Bank in the name of the Accountant- General, 256. ACTION, on bond, statement of and of judgment obtained, 135. in ejectment brought by trustees of a term, and of verdict found for the plaintiff, state- ment of in a bill, 195. brought by trustees for the recovery of the balance of an account, statement of in a bill, and of a set-off pleaded by the defendant, 375. brought by defendant for the recovery of the balance of an account, statement of, in a bill, 377. brought by defendant for the recovery of an alleged shipment of dollars, statement of, in a bill, 381. of ejectment brought for recovery of possession of a moiety of an estate, statement of, in a bill, 391. statement of an action of ejectment brought by lessor to recover possession of premises agreed to be let to the plaintiff in equity, 408. commenced for recovery of the amount of an attorney's bill, interrogatory to prove, 691. interrogatory to prove defendant's having commenced an action against the plaintiff's agent, the trial thereof, and what passed thereat, 692. ADDRESS OF BILLS, 1. ADMINISTRATION, statements, in bills, of grant of, 132, 135, 148, 217, 291, 293, 295, 417, 426, 431. statements, in bills, of grant of, with the will annexed, 435, 439. statement, in a petition, of the death of executors, and of letters of administration of effects left unadministered, with the will annexed, granted, 503. statement, in an answer, of grant of, with the will annexed, 584. recital in a decree of letters of, limited to matters in issue, and until final decree nlade and the execution thereof completed, 835. ADMINISTRATOR. — (For bills against administrators, see Contents, tit. Bills hy next of Kin for Account.) plea that defendant is not, 641. interrogatories for the examination of the personal representatives of an administrator, as to his intestate's estate and effects, exclusive of his share in a partnership busi- ness, and also as to the debts which were owing by the intestate, 758. ADMISSIONS. — (See tit. Acknowledgments.) statements of admission of three sisters to copyholds, as co-heiresses — the death of one of ihem, and the admission of the surviving sisters (the defendants) to her share, 273. ADVERTISEMENT, for discovery of a person, interrogatory to prove insertion of, and by whose direction, and what applications were made in consequence, 692. interrogatory to prove as exhibits advertisements inserted in newspapers, and by whose direction inserted, 747. interrogatory to prove an estate advertised for sale by auction, and by whose authority, 755. ADVOWSON, when mortgaged, sale of should be prayed instead of foreclosure, 181, n. decree for partition of, 839. — (And see tit. Will.) AFFIDAVIT.— (See Contents, 839, Chapter VIII.) When required to be annexed to a bill, 169, n. form of, to be annexed to a bill for delivery of title-deeds, 173. forms of, to be annexed to a bill of interpleader, 208. forms of, accompanying the examinations of femes covert, 669, 671. AFFIRMATION, of a quaker, a surveyor, as to repairs being requisite, 562. INDEX. 891 AGENT, of vendor, statement of agreement made with, in a bill by vendor for specific perform- ance, 9. contracting for sale or demise of lands need not be authorized in writing, 21, u. statement (in a bill) relative to parliamentary agents employed in prosecuting an elec- tion petition, 377. interrogatory to prove that plaintiff was employed by defendant as her confidential attorney or agent, 694. interrogatory to prove for how many years a person was emplojed as land agent to pro- prietors of coal mines, whether he kept a diary or .nccount of his agency, and when he discontinued keeping the same, 737, (also tit. Cross-Interrogatories.) interrogatory for the examination of an agent or steward as to Ws having been em- powered by a testator to let and sell his estates and receive the rents, also to ascer- tain the particulars of the estates how long the examinant had been in possession of any part, what rents he had received, what remained in arrear, and what moneys had, been expended on the estates, 759. interrogatories for examination of, before the Master, as to rents received by him, moneys laid out in repairs, moneys received by sale of estates and timber, and re- quiring him to set forth the rental and all the particulars of the estates belonging to a deceased person, 769. AGREEMENT. — (See Contents, titles. Bills for Specific Performance of Agreements ; and Bills to cancel Agreements.) stated in a bill for specific performance to be in writing, signature presumed until con- trary shown, 8, n. statement in a petition of a bill filed by a purchaser praying for an injunction to re- strain the vendors from proceeding at law, and that they might be decreed specifically to perform their agreement, and to execute a conveyance to the plaintiff, or that the agreement might be cancelled, 525. statement (in a petition) of a petition presented praying that an agreement for purchase might be cancelled, 526. Interrogatory to prove the preparing and terms of, 693. a. parol agreement respecting the plaintifi''s residing with a de- fendant, ib. interrogatory to prove defendant's signature to, 724. a deceased person's signature to, ib. the signature of witness to an agreement as agent on behalf of the defendant,'what passed previously to, and whether de- fendant approved of his signing the same, ib. signed by an agent, interrogatory to prove as an exhibit, also to prove the memorandum indorsed signed by the party ratifying the act of her a,gent, ib. signed by the purchaser and auctioneer, interrogatory to prove as an exhibit, and what passed at the time of execution, 748. interrogatory to prove, by examination of solicitors, by whom they were employed in negotiating a treaty or agreement for sale between defendants, that they received their instructions from the partners of defendant T. R. C, and that pending the treaty or after the agreement was concluded they received information that an agreement for sale had been entered into between plaintiff and defendant I. D., and whether they communicated the same to the other defendant, 750. interrogatory to prove, by examination of the partners of defendant T. R. 0. whether they treated for or employed any person to enter into a treaty for purchase of pre- mises from defendant I. D., whether they had the previous authority of T. R. C. or whether he afterwards knew or approved of it, 751. decree declaring agreements to be void, the grounds upon which such decree was founded being inserted, 835. — (And see tit. Composition.) ALIEN, plea that plaintiff is an alien enemy, 640. ALLOTMENT, statement of an allotment made to a defendant upon an inclosure, 407. interroo'atory to prove the making of, and circumstances relative thereto, 693. of common land made under an act of parliament, interrogatory to prove being made, 739. AMENDED BILL, form of amending bill, a subsequent mortgagee added as a party defendant to a bill of foreclosure, 188. statements of bills being amended, 408, 409. statement of an order to amend a bill, and that defendant may answer the amendments and exceptions at the same time, 416. considered as the original bill, 563, n. 892 INDEX. AMENDED BILL, continued. demurrer to an amended bill for redemption, BST. ANNUITY. — (See Contents, tit. Bills relating to Annuities; also Chapter XVII. tit. Decrees and Decretal Orders.) cannot be set aside for mere inadequacy of price, 90, n. if validity of the annuity is not raised on the pleadings, the court is not authorized to question the title of the annuitant, ib. n. statement of a grant of, secured by a demise of premises and warrant of attorney f prayer for payment of the arrears, to have a value set upon the annuity and the pre- mises sold, and in case of a deficiency, to be admitted a creditor against. the general assets of the deceased grantor, 148. bill praying that plaintiff may be declared entitled to an annuity, and for an account of the arrears, 179. charges in a bill relative to an annuity charged by will on an estate, plaintiff insisting that she is entitled as well to the annuity as to her dower, 181. prayer for payment of a weekly annuity given by a will, 246. prayer for account of several annuities given by a will, and payment of the arrears out of the rents of the residuary real estate, and in case of a deficiency then by sale or mortgage, and for payment in future out of the residue of the rents, 264. prayer to have a sum invested to secure, 403. statement in a petition of a reference to the Master to inquire as to the value of, 455. for life, interrogatory to prove value of, 693. decree for payment of arrears of, with interest, and directing defendant to execute a conveyance for securing growing payments, 823. decree declaring the rights of annuitants under a will, also declaring the construction of the will as to the bequest of an annuity in fee, granted out of the Barbadoes Duties, as vesting in equity in the legatee as a fee-simple conditional, and directing an account to be taken of the arrears, 850, 852. ANSWERS.— (See Contents, Chapter IX.) titles of, 563. title of, reflecting on plaintiff, is scandal, 563, n. commencement of, 565. as to framing answer to amendments and exceptions, 565, n. common forms used in framing, 566. conclusion of, 569. introductory observations as to framing, 569. statements of defendants having appeared and put in their answers, 404, 406, 409, 412, 416, 417 to 543. statement of (in a petition) insisting that a sum of money paid by the grantee of an annuity was not paid for the purchase of the annuity for the plaintiff's life, that the payments made in respect of the annuity ought not to be taken in satisfaction of such sum, and that the plaintiffs ought not to be let in to redeem, 543. statement of (in a petition) insisting that a widow accepted the provisions made for her by her husband's will and in compliance with the directions contained therein executed a deed of release, that at the time of making her will she was ignorant of his having obtained renewals of leases of certain leasehold premises in his own name, and that it was only discovered upon occasion of looking into the title upon a sale of the premises, and insisting that the provisions made by the will were a bar to all claims under a settlement, and in particular to the leasehold premises, 553. claim by defendant of the benefit of the defence set up by answer, as if by plea, or de- murrer, 596, 597, 619. APPEAL. — (See Contents, tit. Petitions of Appeal.) petition of, statement of, (in a petition) praying that an order made by the V. C. might be discharged and an agreement for purchase cancelled, an account taken of all ex- penses incurred by petitioner in the investigation of the title, and also for costs of suit, 530. APPOINTMENT.— (See tit. Trustees.) legatees taking in default of appointment held necessary parties to a bill brought for a moiety of the residuary estate, 240, n. APPORTIONMENT of rents, prayer for, in a bill of partition, 301. ARBITRATION, statement of reference to, and of bond executed, 80. interrogatory to prove an agreement for reference of amount of damages to arbitration and what were awarded, 692. decrees directing a reference to, 824, 825, ARREST, — of plaintiffs, statement of, in a bill, 115. ARTICLES,— to discredit witnesses, 794. INDEX. 893 ASSETS, mode of administering real assets, 124, 128, n. marshalling of, 213, n. ASSIGNEES. — (See Contents, tit. Bills hy Assignees on lehalf of Bankrupt's Estates.) authority to commence a suit should appear on the face of the bill, 95, n. statement of the assignees of a bankrupt executor having in their hands part of the personal estate in specie, in bill filed by creditors praying an account thereof, and to be allowed to prove against the bankrupt's estate the balance of his account due from him to the testator's estate, 143. charge in a bill relative to the removal of an assignee, and the appointment of a new one in his stead, 164. statement in a bill of the assignees of a bankrupt executor having possessed assets of his testator, 436. plea to a bill by, that same was filed without the consent of the creditors, 641. assignment; pretences and charges in a bill to set aside a voluntary assignment of effects for the benefit of relations, 84. bill by the assignees of a bankrupt's estate, to set aside an assignment of the lease of certain premises made to the defendant by the bankrupt a short time previously to his bankruptcy, 98. of a legacy to a purchaser pending a suit by creditors for an account and payment of it, void, 135, n. prayer (in a bill of foreclosure) to have an outstanding term assigned to a trustee for the plaintiff, 185. statements of conditional assignments made of shares of a fund in court in trust for securing money lent, 404, 515. ATTACHMENT, issued out of the Lord Mayor's Court, statement of in a bill, and withdrawal thereof, 162. issued out of the Lord Mayor's Court, statement of in a bill, and charges relative thereto, 397. ATTORNEY, interrogatory to prove that plaintiff was employed by defendant as her confidential attorney or agent, 694. interrogatory to prove that witness was employed by a person (deceased) in the pur- chase of an estate, and the deceased's intention with regard thereto, 701. interrogatory to prove information given by defendants to witness of their intention to employ another solicitor, 732. interrogatory to prove whether witness informed his clients, two of the defendants in a cause, that he should instruct counsel to appear for them at the hearing, what in- structions he received from them, and whether he did in fact deliver briefs to coun- sel other than the briefs delivered for other defjendants, and when first he knew that another solicitor had prepared briefs for counsel, 733. interrogatory to prove by whom employed in negotiating a treaty for sale between de- fendants, and whether they communicated information which they received to a defendant, 750. interrogatory to prove the amount due to an examinant for business done for deceased, 759. (And see tit. Action.) ATTORNEY-GENERAL, form of introducing the name of, where made defendant, 4, n. prayer of process in a bill where made defendant, 6. may refuse to put in an answer, but no process of contempt can go against him, nor can his answer be excepted to, 571, n. forms of answers of, 571, et seq. AUCTION,— statements of sales by, 12, 17, 95. AUCTIONEER, interrogatory to prove authority to sign a receipt or agreement as to sale of premises, and the usage of auctioneers, 748. interrogatory to prove what observations were made by an auctioneer previously to biddings, as to the custom of a manor with respect to the right of widowhood, 751. interrogatory to prove that witness sold an estate by auction, the plan or particular produced, and what was stated by him relative thereto, 754. interrogatory to prove that witness was employed to sell an estate by auction, that he " prepared the plan referred to in the advertisements, and that the same was left open to the inspection of persons desirous to purchase, ib. AUTHOR, — interrogatory relative to the authorship of a book, 694. 894 INDEX. AUTHORITY, interrogatory to prove whether given by the obligee in a bond to receive the money due thereon, 165. AVERMENT, form of the general averment that the acts complained of are contrary to equity, 5. AWARD, statement of, in a bill, and of circumstances to invalidate the same, 81. statement of an award (made in pursuance of an order made upon petition) declaring the petitioner to be a mortgagee, and fixing the value of his security, at which price he was to become the purchaser thereof, and also ascertaining the amouut in respect of which the petitioner was to be entitled to prove under a commission of bankrupt issued against the mortgagor, 519. BANK OP ENGLAND, as to making, parties, 291, n. bills against, 291, 295, .^40. interrogatory to prove the custom at, of retaining powers of attorney to receive divi- dends, and also to prove as an exhibit a copy of a power of attornev deposited there, 111. BANKERS, interrogatories to prove by a partner and a clerk in a banking-house whether two de- ceased persons kept cash accounts with the firm, and how, 710. BANKRUPT. — (See Contents, tit. Bill by Assignees on behalf of Bankrupts' Estates.) statements of the issuing of commissions of, and the proceedings under the same, 30, 82, 107, 406, 436, 439, 519. statement in a bill of bankruptcy of an acting executor, 144. prayer in a bill by creditors that a debt may be proved under a commission, and that a receiver may be authorized to receive the dividends to become payable thereon, 148. charge relative to the bankruptcy of defendant, and the provisions in a deed with re- ference thereto, 161. prayer for liberty to prove under a commission of bankrupt against a mortgagor for any deficiency which may happen by sale before the commissioners of the plaintiff's security, and to receive dividends thereon with the separate creditors, 200. charge that a defendant, an executrix, is in danger of becoming bankrupt, and that some person ought to be appointed to prove in respect of the balance due from her, 260. prayer for liberty to prove as a debt against the bankrupt's estate the amount due from him as executor, 439. plea of bankruptcy of plaintiff, 642. plea by bankrupts of their certificate to the whole bill, excepting only as to the allega- tion of their claim of interest, which they disclaim, 643. , statement of a release by bankrupts of their surplus allowance and all right to their surplus estate, 644. interrogatories to prove acts of bankruptcy, 694. conversations respecting the affairs of, 700. BAPTISM, of plaintiff, charge relative to, 366. of plaintiff, interrogatory to prove, 695. interrogatories for examination of a defendant before the Master, to prove the number and age of her children, and when and where baptized, 760. — (And see tit. Entry.) BILL IN EQUITY, praying relief, usually consists of nine parts, 1. address of, always prescribed by the court, 1, n. > an amended bill considered as the original bill, 563, n. BILLS OF EXCHANGE. — (See Contents, tit. Bills to cancel Agreements, Bills of Exchange, Bonds, and other Instruments.) statements of bills being accepted by bankers, and payment thereof not provided for when due, 95. statement of meetings of bill-holders and of the sums due to them, 112. interrogatory to prove remittance of, and paj'ment thereof, 695. interrogatory to delivery of bills for the produce of a cargo, consignment of colonial produce, or assignment of other property to secure payment thereof, or whether wit- ness had credit in account with defendants, 695. interrogatory to prove, as exhibits, 713. interrogatory to prove remittances to an agent of drafts or bills of exchange during a long period, and to what amount yearly, the allowance made for commission and postage of letters by the person employed to draw out the accounts between the INDEX. 895 BILLS OF EXCHANGE, continued. parties, and what was said by the party charged therewith upon a conversation with him relative thereto, T47. BILLS OF LADING,— statements of, 144, 381. BIRTH.— (See titles Baptism; Entry.) of plaintifif, interrogatory to prove, 695. BONDS. — (See Contents, tit. Bills to cancel Agreements, Bills of Exchange, Bonds, and other Instruments.) bill by a grantor of annuity and his surety to set aside an annuity bond, 90. statements of mortgage bonds, 190, 231. interrogatories to prove the execution of, 713, 715. interrogatories to prove a bond prepared for securing payment of a sum of money by the plaintiffs, the objection taken by them to the same being prepared as a common money bond, also to prove as an exhibit the minute made by witness of the actual consideration, the contents and purport thereof, and the conversation which passed relative to the consideration, 714. interrogatory to prove the amount due on bond to examinants, 761. interrogatories for the examination of a person claiming to be a creditor, to prove the actual consideration of a bond, and under what circumstances the same was exe- cuted, 763. interrogatories for examination of a witness before the Master as to the existence of a bond and what has become of the same, also to prove the hand-writing, and acknow- ledgments or admissions made by the obligor as to the person for whose benefit the bond was intended, 764. interrogatory to prove whether examinant has received any part of the principal or in- terest due on bond, 768. BOOKS. — (See Contents, tit. Bills to restrain the Infringement of a Copy-right. — See also antea, tit. Author.) BOUNDARIES.— (See Contents, i\t. Bills by, and against, lords of Manors'.) bill does not lie for the mere purpose of settling the boundaries of two manors, 267, n. charges in a bill that defendants have thrown down or neglected the boundaries be- tween freehold and copyhold land, 273. statements and charges in a bill relative to the boundaries of plaintiff's estate, 371. of lands, interrogatories to prove, 696. or division between parishes, interrogatory to prove, 696. BUILDINGS.— (See titles Dilapidations; Waste.) CANCELLATION. — (See Contents, tit. Bills to cancel agreements, Bills of Exchange, Bonds, and other Instruments ; also tit. Bills relating to Annuities.) of a will, interrogatory to prove, and why cancelled, 758. CAPITAL, interrogatory -to prove amount of, advanced by a partner, and how much appears by the books to have been brought in, 744. CASE, interrogatories to prove that a case was laid before counsel and the points submitted for his opinion; also to prove as an exhibit the case with the opinion, and whether wit- ness laid any other case before the same or any other counsel relative to the matters before submitted to counsel, and why, 715. CATALOGUE, interrogatory to prove a catalogue of sale as an exhibit, 716. — (See also tit. Sale.) CERTIFICATE, of counsel to a petition for re-hearing two causes, 542. plea by bankrupts of their certificate to the whole bill, excepting only as to the allega- tion of their claim of interest, which they disclaim, 643. by commissioners on examination of femes covert as to the application of moneys to which they were entitled, 667. by commissioners on examination of a feme covert as to her execution of a deed of set- tlement, 669. of the register of the Accountant-General, of the amount of stock standing in his name, 796, n. CERTIORARI, prayer for writ of, 7. bill for writ of, to remove proceedings from the Lord Mayor's Court in London, on the ground of one of the plaintiflf's witnesses residing out of the jurisdiction of that court, 109. writ of, on what grounds and by whom it may be applied for, ib. n. plaintiff must prove the suggestion of his bill within fourteen days after the return of the writ of, 110, n. 896 INDEX. CHANCERY, jurisdiction of the court of, 110, n. CHAPEL, to prove -whether used as a Roman Catholic or Protestant, whether ceremonies of bap- tism, marriage, and burial performed there, and the general belief relative to the destruction of the chapel and registers, 696. CHARITY.— (See Contents, Chapter VI. tit. Informations.) commencement of suit on behalf of, 4. decree for establishing, 825. CHILDREN, interrogatories to prove number and ages of, 69'7, 698. maintenance of, and degree of affection shown for a child, 698. interrogatories for examination of a defendant before the Master to prove the number and age of her children, and when and where baptized, V60. CLAIMS.— (See tit. Release.) stated in bills^ charge of a claim of interest by some of several defendants in the performance of cer- tain contracts, 56. statement of a claim of interest by a person resident abroad, 89. charge of a claim of interest by some of several defendants in purchase-moneys, 96, 134. charge of cross claims by defendants, 105. to dower by defendant, statement of, 134. by assignees of a bankrupt, of interest in the execution of trusts, charge relative to, 161. by an heir disputing a will, 178, 230, 259, 362. of interest in mortgaged premises, statements of, 183, 190. by an assignee under the insolvent debtors' act in right of the insolvent as tenant in tail, statement of, 197. of various persons to residuary property, statement of, 265. of interests in trust estates, statement of, 337. by next of kin before a Master, statement of, 435. by surviving assignee of a bankrupt to his interest under a will, statement of, 439. by an heir to surplus rents, statement of, in an information, 472. stated in answers, by defendant to be entitled in right of his wife, to receive a legacy given to her, 589. by adult defendants jointly with infants as next of kin to plaintiff's deceased wife, to the exclusion of plaintiff, 595. by defendant lord of a manor to be entitled absolutely to copyhold premises by seizure for want of a tenant, 598. claim of the benefit of the defence set up by the answer, as if by plea, or demurrer, 597, 619. of plaintiff to an estate, interrogatory to prove notice of to defendant, and whether giveu before or after defendant had a charge thereon, 738. CLERK, statement of a clerk to a company, being in receipt of rents of a charity estate, and in possession of deeds, &c. be being made a defendant, 477. COAL, bill for an account of coals and other minerals raised by the defendants and their lessees from coal mines lying under copyhold lands, 279. interrogatories to prove knowledge of, the sinking of coal pits, the direction of drains or soughs, the erection of steam engines, and matters relative to the situation, drain- ing, working of beds or strata of coal and iron-stone, 735 to 738. CODICIL.— (See titles Probate; Will) COMBINATION, forms of the general charge of, 5. charge of, ought to be specific to render it material, 569, n. general charge of, need not be answered, ib. COMMENCEMENT, of bills, forms of, 2. of informations, 4. of an inforniation and bill, 4, 479. of petitions, 5U2, 525. of affidavits, 556. of an affirmation, 562. of answers, forms of, 565. of demurrers by one or more defendants to the whole of the bill, forms of, 628, 9. of demurrers to part of the bill, 630, 632, 633, 636. of pleas by one or more defendants to the whole of the bill, forms of, 640, 648. of pleas by one or more defendants to part of the bill, 645, 654. INDEX. 897 COMMISSION, to examine witnesses abroad, prayer for, 344, 348, 368, 3T2, 391. for examination of witnesses when returnable on a day certain, the time cannot be en- larged, 361, n. to examine witnesses abroad, may be obtained before answer, 381, a. statement of, sued out to take defendant's answer abroad, 427. prayer for to take the consent of a married woman (residing abroad) to the transfer of stock, 520. COMMITTEE of a lunatic, commencement of bill by, 4. COMMON, interrogatory to prove a meeting held of the inhabitants of townships for the purpose of fixing the limits of the common lands, 739. Interrogatory to prove the quantity of common land which would be allotted to the plaintiff, with reference to the quantity to be allotted to the lord of the manor, 746. — (And see tit. Inclosure.) COMPANY, statements in and prayer of an information and bill filed against the Skinner's Company and their clerk, for an account of the charity estates vested in them for the support of the free grammar school at Tunbridge, 4Y7. COMPENSATION, bill praying for the value of plaintiff's dower out of such part of the testator's estates as was directed to be sold in her life-time, 179. prayer for a supplemental bill for compensation for the loss of a piece of land which the plaintiff had contracted to purchase, 406. COMPOSITION, creditor agreeing to accept a composition, and taking security for the rest of his demand, or taking additional security for the amount of his composition, such security void, 34, n. statement of an agreement to accept, 35. bill by insolvent partners and certain persons who had been appointed inspectors and had also become sureties for them for the payment of certain instalments, against a creditor and the executors of a deceased trustee (under a deed of trust alleged to have been executed by the other defendant, the creditor, for the benefit of his creditors,) to compel them to accept a dividend declared by the inspectors, HI. CONDITIONS OP SALE.— (See titles Catalogue; Sale.) CONFEDERACY, forms of general charge of, 5, 6. — (And see tit. Combination.) CONFIRMATION, of lease, prayer for, 66. offer by plaintiff to confirm underleases, &c., 83. of plaintiff's jointure, decree directing, 829. CONSIDERATION, of a deed, interrogatory to prove payment of, and whether the whole or only part thereof was paid, and the acknowledgment of the person receiving the same, 698. — (And see tit. Deeds.) CONSIGNMENT, statement in a bill for an account of mercantile dealings, of consignments made and investment of the proceeds, 103. of cotton, statement of in a bill by creditors against executors, 144. CONTRACTS, bill by two merchants partners, against several merchants, partners in different firms, praying to have certain contracts entered into with the plaintiffs by the defendants' brokers, delivered up to be cancelled, as having been obtained by fraud, 45. — (And see tit. Agreement.) CONVERSATIONS, interrogatories to prove, 698 to 700. respecting the provision made, or intended to be made, for the plaintiff by a deceased person by his will, interrogatories to prove, 741. interrogatories to prove particulars of conversation between plaintiff and witness, and declaration made by the former respecting the defendant, '745. between plaintiff and defendant respecting the purchaser of particular lots of an estate sold by auction, interrogatory to prove, 749. respecting an agreement for purchase, interrogatory to prove, 751. with defendants, relative to their title, interrogatory to prove, 753. _ interrogatory to prove particulars of a conversation between plaintiff and defendant, respecting the purchase by the defendant of a house and premises, and the plaintiff's title thereto, and a piece of newly-enclosed ground in front, 753. 898 INDEX. CONVEYANCE, bill to set aside deeds of lease and release conveying away an estate absolutely, In- tended to operate only as a security for money lent, 67. interrogatories relative to the preparing a draft of conveyance by counsel, and the in- structions given, and the deceased purchaser's intention with regard thereto, 701. interrogatory to prove the preparing of deeds of, for carrying an agreement into execu- tion, and the circumstances attending the preparing and engrossing thereof, and their execution by a particular party, V02. COPARTNERSHIP.— (See Contents, tit. Bills relating to Partnership Matters.) COPY, interrogatories to prove copies of registers of baptism, burials, &c., 718. interrogatory to prove as an exhibit the copy made by witness by direction of the de- ceased person, of an account which had been delivered of moneys owing by him ; also to prove in what language the account and copy were written, the observations which the deceased wrote on the copy and in what language, and requiring the wit- ness to translate the copy, 710, 716. interrogatory to prove a copy of an agreement having been delivered to defendant, and what passed thereupon, 717. interrogatory to prove as an exhibit a copy of a draft previously to any alteration being made therein, ib. interrogatory to prove as an exhibit a copy of an entry of stock in the bank stock books, 717. interrogatory to prove as an exhibit a copy of a court-roll, ib. interrogatories to prove exhibits copies of entries upon the court-rolls, ib. interrogatories to prove as exhibits copies of entries in parish register books, 718. interrogatories to prove as exhibits copies of entries in the register books of an ecclesi- astical office for probate of wills, 719. interrogatories to prove as exhibits copies of inscriptions on tomb-stones, ib. interrogatory to prove as an exhibit a copy of hand-bills distributed for discovery of a person, ib. interrogatories to prove as exhibits copies of judgments, 720. interrogatory to prove as an exhibit a copy of an inquisition of lunacy, and of the order directing a traverse, ib. interrogatory to prove as exhibits copies of maps or plans of a book of reference, and that in the originals a piece of land and quarry were comprised therein, 720. interrogatory to prove as an exhibit a copy of a notice, 720. interrogatory to prove as an exhibit a copy made by witness of notices served upon the plaintiffs, ib. interrogatory to prove as an exhibit a copy of a power of attorney deposited at the Bank of England, 721. interrogatories to prove as exhibits copies of records and original writings, ib. interrogatories to prove the registering of a deed by a copy of the register, and the in- dorsement of such registration on the exhibit, ib. interrogatories to prove as an exhibit the counterpart of a lease, and that the same cor- responded with a former lease, 722. interrogatories to prove as an exhibit a copy of an entry in a book kept at the navy ofBce, 733. COPYHOLD. ^(See Contents, titles, 5JHs /or Specific Performance of Agreements ; Bills to cancel Agreements, ^c; Bills of Foreclosure ; Bills by, and against. Lords of Manors.) statements in a bill of the admission of three sisters to copyholds, as co-heiresses — the death of one of them, and the admission of the surviving sisters (the defendants) to her share, 278. COPYRIGHT. — (See Contents, tit. Bills to restrain the Infringement of a Copyright.) in what cases an injunction will be granted against an invasion of, 116, n. CORN-MILLS, information and bill (in the nature of a bill of peace,) to restrain the inhabitants of a certain district from buying or bringing therein for the purpose of sale, or consuming in their own houses, or using any corn, grain, flour, malt or meal, which had not been ground at the relator's mills, which were ancient mills, originally parcel of the pos- session of the Duchy of Lancaster : Praying also for an account of all the corn, &c. used by the defendants in their houses, which according to the custom ought to have been ground at the relator's mills, and to have a value set thereon ; containing state- ments of informations filed by former proprietors of the mills against the inhabitants of the district, the establishment of the custom on the trial of issues directed by the court, and the decrees made in the causes, 479. having been kept in repair, statement of, and of persons being employed to attend to the business thereof, 492. INDEX. 899 COBPORATION, interrogatory to prove the manner of granting leases held under an ecclesiastical cor- poration, 722. interrogatory to prove the seal of an ecclesiastical corporation afBxed to a deed, 122. CORRESPONDENCE, interrogatory to prove a correspondence by letters with the defendant, and the hand- writing of the letters if in the possession of the witness, and any admissions made by the defendant on the same being produced to him, 702. COSTS, prayer for, in bills, 53, 84. prayer that plaintiff, a trustee, may retain his costs out of trust-moneys in his hands, 337. statement (in a petition) of a petition of appeal, praying that an account might be taken of all expenses incurred by the petitioner in the investigation of the title, and to tfix his costs of the suit, and for payment thereof by the defendants, 530. directions in a decree as to costs, where there had been several former hearings which proved fruitless, (See tit. Petitions.) COUNSEL, — certificate of, to a petition for re-hearing two causes, 542. COURT ROLLS, interrogatory to prove as an exhibit a copy of a court roll, 7l7. interrogatories to prove as exhibits copies of entries in, ib. COURTS OP EQUITY OF INFERIOR JURISDICTION, bill in the Lord Mayor's Court, London, for discovery in aid of the defence to an action brought in that court; the defendant having pleaded to the jurisdiction, 394. bill in the Lord Mayor's Court, London, for discovery of property in the hands of the garnishees, in aid of an attachment, 397. (And see tit. Ceriiorari.) COVENANT, prayer to have a covenant contained in a deed of dissolution of partnership, reformed according to the agreement of the parties, 161. CREDIT, interrog.ntory to prove by a clerk the circumstances and state of credit of a partnership firm and of the partners, 703. a witness can only be examined as to credit, in contradiction of facts sworn to, not material to what is issue in the cause, 794, n. examinations to credit can only be by order upon special application, ib. evidence as to, taken upon the examination in chief, may be suppressed, ib. no precise time within which an examination as to credit is to take place, ib. titles of interrogatories to discredit testimony of witnesses, 687. articles to discredit witnesses, 794. CREDITORS. — (See Contents, tit. Bill by Creditors for Payment of Debts.) petition by, for leave to prove their debts before the Master; the time limited having expired and the Master's report having been confirmed, 521. and their witnesses, interrogatories for ^examination of, 761. decree on a bill by, 826. CROSS-BILL, to set aside an agreement for the conveyance of a piece of ground, 61. bill of revivor by the executor of the plaintiff in, 420. may be filed in Chancery to an original bill in the Exchequer, 444, n. statement, (in a petition) of a cross-bill exhibited by the petitioners, 541. statement of a cross bill praying that it might be declared that the plaintiffs in the original bill were not entitled to call upon the plaintiff in the cross bill to make good dividends received upon a sum of stock by a deceased person, or that what he should be obliged to pay might be repaid him out of the assets of such deceased person, 420. CROSS-INTERROGATORIES, witness may be cross-examined to the same point to which he has been examined in chief, but not to any new matter, 786, n. if left within forty-eight hours after production of witness at the seat of the adverse clerk in court, the party producing him must keep him in town till his cross-exami- nation finished, ib. ; {But see No. XXV. of the New Orders, p. 878.) witness refusing to be cross-examined, cause of exception to his testimony, 786, n. objection to competency of witness on the ground of interest, not waived by his cross- examination, ib. as to witness having acted as auctioneer and the representations and comments made by him respecting an instrument produced by him at the sale purporting to be a lease or copy of the lease referred to in the particulars of sale, 786. 900 INDEX. CROSS-INTERROGATORIES, continued. as to application made for a copy of the alleged lease, the delivery of a draft lease, the objections taken thereto by the intended lessee, the negotiations which took place in consequence, the alterations which were made, and the time when the lease was executed, 787. as to the knowledge of a steward or land agent of the value and nature of coal mines, in what capacity he was employed by the deceased owner thereof, and- as to his occupation in life previously thereto, 788. whether a deed was read over to the grantor previously to his executing the same, and whether he was aware of the terms or effect thereof and the mode of payment of the consideration money, ib. as to a party having executed a deed without its having been examined by him or on his part, and in confidence that it had been fairly prepared, 789. as to the age and state of mental faculties of a steward or land agent, and whether from attacks of palsy he was not incapacitated or unequal to enter into a contract relating to coal mines, with a view to securing the interest of his employer, ib. as to the character of the hand-writing of letters, whether the same was not more in- distinct and feeble than at an earlier period, and whether the writer was not then in a feeble state of health, ib. as to the due execution of a will, 790. as to the republication of a will, 791. as to the sanity and mental capacity of a testator, ib. for examination of a party examined ^ro inleresse suo, title of, 792. CROWN, commencement of suit on behalf of, 4. (And see Contents, Chapter VI. tit. Informations.) CUSTOM, bill by the tenants of several manors parcel of another manor against the lord and his steward, to establish certain ancient customary rents and fines, and other customs, 280. — (And see tit. Decrees and Decretal Orders.) for all tenants within a manor and two miles of certain corn-mills to do suit and soke to the mills, and grind all corn, grain, and malt used within the manor and two miles of the mills at the same mills, statement of, in an information and bill filed to estab- lish the custom, 479. DEAF AND DUMB PERSON, commencement of bill on behalf of, 4. DEATH, of parties, witnesses, and others, interrogatories to prove, 703, 704. DEBT, interrogatory to prove debt due to the plaintiffs, 704. interrogatory to prove that a deceased person was indebted to the defendant, applica- tions made for payment, and the deceased's acknowledgments and promises to pay, ib. interrogatory to prove the debt due to the plaintiff according to the particulars con- tained in an exhibit, 722. interrogatory to prove the debt due to the plaintiffs in respect of advances made by them as bankers, 734. interrogatory to prove the amount of debts due to examinants, 768. DECLARATIONS, interrogatories to prove, respecting the renewal of a lease, 700. interrogatories to prove, relative to a. person being present at the time an agreement was entered into, 701. interrogatories to prove, expressive of the intentions of a purchaser in making the pur- chase and in having the conveyances prepared, — also as to his having altered his intentions with regard to the conveyances, and his intention in making such altera- tions, 701. interrogatory to prove declarations made by one brother relative to another brother being in partnership with him, 741. interrogatory to prove a declaration made by a person shortly before his death respect-' ing the plaintiff, 742. interrogatory to prove declarations made by the plaintiff respecting the defendant, 745. interrogatory to prove declarations made by a deceased person respecting his nearest relations of the whole or half blood, 745. made by a person as to his having employed defendant to purchase for him an estate at auction, interrogatory to prove, 749. interrogatory to prove a particular declaration made at a sale by auction, 749. interrogatory to prove declarations made by defendants relative to their title to an estate, 753. INDEX. 901 DECREES AND DECRETAL ORDERS.— (See Contents, Chapter XVII.) sappleraental bill filed by infants, praying that tbey may be at liberty to prosecnte a decree made in a former suit and have the accounts thereby directed prosecuted, charging the executors and trustees with neglect in not having duly invested the trust-moneys according to the will, 449. statement of a supplemental bill praying that plaintiffs might have the benefit of a former suit and the decree and proceedings therein with liberty to prosecute the same, that the rights and interests of the plaintiffs might be ascertained and secured, and that they might be declared entitled to have a sum of £6666 stock raised, and that certain funds might be applied towards raising the same, and the deficiency raised out of the testator's real and personal estate, 871. statement (in an information) of a decree directing a refel'ence to the Master to see that a proper license was obtained to enable the relators to purchase in mortmain, and directing an estate to be conveyed to the Master and Fellows of a college subject to the trusts of the will, with power to let the estate at rack rent, 469. statement (in an information and bill) of a! decree declaring that all tenants of any of the king's manors ought to grind all the corn growing on their lands or used in their houses at his majesty's mills, and so also at such mills when in the hands of fee- farmers or patentees, and decreeing that the defendant to an information and bill should do suit and grind his corn at the relators' mills, 482 ; also statement of the decree made on the rehearing, confirming the former decree and extending it to all corn growing or bought unground and brought into the manor and spent in the de- fendant's house, and directing the defendant to pay the relator twenty nobles for costs, 482, and statement of a subsequent decree declaring the custom to be well proved, and what tolls should be paid for grinding wheat, oats, malt, peas, &c.,488. statement of an order directing a surviving executor to transfer stock into the Ac- countant-General's name, the dividends thereof to be paid to the testator's daughter for life, 511. statement (in a petition) of a decree declaring a will well proved, and directing the trusts thereof to be performed, the testators' estates to be sold, the purchase-moneys to be paid into court, and an account to be taken of the incumbrances, 514. statement (in a petition) of an order directing a share of sums of stock to be carried over to the separate account of the petitioner, 5, 181. statement (in a petition) of an order directing a reference as to title, with liberty to the Master to state special circumstances, 527. statement (in a petition) of an order directing reference to the Master to inquire whether all necessary parties were ready to join in a conveyance, and if so, to settle the same, with liberty to state special circumstances, 530. statement (in a petition) of an order directing a reference to the Master to settle con- veyances, and upon the execution thereof by the time fixed, purchase-money to be paid as the court should direct; and in case the same should not be so executed, purchaser to be discharged, 531. statement (in a petition) of several orders enlarging the time for completing a purchase and executing the conveyances, ib. order of the Lord Chancellor directing causes to be reheard before the Vice-Chancel- lor, 537. statement (in a petition) of a decree dismissing cross cause with costs, and directing the defendants in the original suit to surrender copyhold lands to the plaintiffs, also declaring the construction of an agreement relative to the erection of a wall to be built by the plaintiffs; no costs given in the original cause, 541. statement (in a petition) of a decree directing the defendants to assign premises to the plaintiff and to deliver up the subsisting lease, the assignment to be settled by the Master in case the parties differed, the injunction which had been granted ordered to be continued, and the defendants to pay costs, 554. statement of an order enlarging the time for completing conveyances, and directing, upon certain acts being done, the full amount of the purchase-money (excepting two small sums) to be paid into the bank, without prejudice to the purchafSer's claims for costs and dilapidations, also directiing part of the purchase-money to be carried over to a separate account, a mortgage to be paid off, and the interest of the purchase- money retained by the purchaser to be paid into the Bank, the title-deeds to be deli- vered up to him, and he to be let into receipt of the rents, 805. statements of a subsequent order varying the former as to payment of the purchase- money, and the time of the purchaser being let into receipt of the rents, 804. statement of a subsequent order varying the time for payment of the purchase-money, 805. statement of an order directing an account to be taken of the interest due on two lega- 62 902 INDEX. DECREES AND DECRETAL ORDERS, continued. cies charged on an estate, and of the rents received by the defendants, also directing the estates to be sold and an infant heiress to join on her attaining twenty-one, the purchase-moneys to be paid into the Bank, 812. statement of an order directing the payment of the interest due on two legacies and also of the legacies in five shares, the Master to tax the costs of all parties, also directing a sum of stock to be sold for the payment of the legacies and costs, also directing certain sums to be invested in the purchase of stock to the separate account of an infant, and the dividends to be laid out to accumulate, 814. DEEDS. — (See Contents, tit. Bills to compel the Delivery of Title- Deeds.) referred to in a schedule to an answer as being in defendant's possession, plaintiff en- titled to inspection of, 6V, n. in what cases a plaintiff must establish his title to the property at law before he can come into a court of equity for delivery of, 169, n. an heir out of possession, entitled to a discovery of, to support his legal title, but if the delivery thereof is prayed, the bill is demurrable, ib. in what cases an affidavit must be annexed to a bill praying a discovery of, ib. bill by tenant in tail to have possession of certain estates with the title-deeds delivered up to him, and for an account of the rents received by the defendants claiming under a recovery alleged to have been suffered, 169. bill by a devisee against the testator's widow and her solicitor, to have the title-deeds relating to the devised estate delivered up, 173. mortgagee omitting to take, under what circumstances postponed, 199, n. prayer that defendants may deposit all deeds, &c. in the bands of the Master, 297. prayer of delivery of, in bills of partition, 300, 301. bill praying that indentures of settlement may be deposited with a Master, with liberty for the plaintiffs to give them in evidence in an action of ejectment, 391, 393. supplemental bill filed by a surviving trustee against a new trustee in the room of a deceased plaintiff, praying that the defendant might be decreed to join in all acta necessary to obtain possession of title-deeds, 411. statement of a bill filed by trnstees, praying that the defendants might deliver up cer- tain deeds, &c. plaintiffs offering to discharge any lien which the defendants, as soli- citors, might have upon them, 412. prayer of a petition by a purchaser to have deeds delivered out, 525, 533. statements in answers admitting execution of, 581, 602, 620. demurrer to so much of a bill as sought a discovery of for want of affidavit annexed, 625. interrogatory to prove destruction of, and when witness saw or heard them read, 700. interrogatory to prove preparing of, for carrying an agreement into execution, and the circumstances attending the preparing and engrossing thereof, and their execution by a particular party, 702. interrogatory to prove witness being in the possession of, and from whom received, 705. interrogatory to prove the finding of old deeds, and in whose cnstody the same have been, 705. interrogatory to prove by whom deeds were brought to a person to be executed, whether read over to him or on his behalf, whether witness was requested so to do, and the understanding at the time of execution with regard to the premises com- prised therein, 705, 706. interrogatory to prove what the person who brought the deeds to be executed said which led witness to believe that the conveyance had been prepared according to the instructions given, and to be less careful in examining the same, ib. interrogatory to prove that the person who brought deeds to be executed showed great anxiety to have them executed, and the inference witness afterwards drew therefrom, and when first ; also to prove how witness happened to be present at the execution, 707. interrogatories to prove matters with regard to the procuring a conveyance to be altered or corrected, 707, 708. interrogatory to prove the seal of an ecclesiastical corporation affixed to a deed, 722. interrogatories to prove the execntion of,- by subscribing witness or witnesses, — also to prove receipts indorsed on, 722, 723. interrogatory for discovery of deeds, &c. in possession of witnesses examined before the Master, 776. part of an order directing delivery of deeds and attested copies, and the execution of deeds of covenant for production of, 827. DEMURRERS.— (See Contents, Chapter XII.) claim by defendant of the same benefit from his defence by answer as if he had de- murred, 619. observations on the frame of, 623. INDEX. 903 DEPOSIT, of purchase-money in a bank, and of its laying there without producing interest, state- ment of in an answer, 560. DILAPIDATIONS, prayer of a petition for a reference to the Master to take an account of the dilapidations on the estates, and deterioration in value of the lands by neglect of management previously to the petitioner talcing possession, 525, 533. statement of, in a petition by a purchaser, and prayer for a reference to the Master to take an account and valuation of, 808, 809. DISCLAIMER. — (See Contents, Chapter IX. Sect. 5, tit. Answers and disclaimers.) answer and disclaimer accompanying a plea, 645. — (And see tit. Execulors.) DISCOVERY.— (See Contents, Chapter III. Sect. 2, tit. Bills for discovery.) observation on bills for, 373. DISPUTE, interrogatories to prove, with regard to the payment of a sum of money, the agreement to ftfer to arbitration, the award made, and the defendant's acquiescence therein, T08. DIVIDENDS, interrogatory to prove receipt of, by plaintiff, 709. interrogatory to provS'the custom at the Bank of England of retaining powers of attor- ney to receive dividends, 717. — (And see titles Cross-Bill. Stock.) DOWER.— (See Contents, tit. Bill for Dower.) statement of a defendant having brought a writ of, the bill praying to restrain her pro- ceedings at law, 175. from what time a widow is entitled to an account, 176, n. on a bill for, costs do not follow, ib. bill for, against the deceased's heir at law and his other children and his executors and devisees in trust, praying also to be declared entitled to an annuity given by the deceased's will, the defendants insisting that the plaintiff ought to elect, 177. prayer for, and for compensation for the value of the plaintiffs dower out of such part of the testator's estate as was directed to be sold in her life-time, 179. charges in a bill for, the defendants alleging that a sum due on bond was intended to be discharged by the bequest of a legacy and an annuity, and that the annuity was intended to be in full satisfaction of her dower, 180. decree for, out of freehold and copyhold lands, 827. decree declaring widow to be barred of dower, (she having elected to take under a settlement,) also directing her to execute a proper release, 853. DRAFT, interrogatory to prove as an exhibit a copy of a draft previously to any alteration being made therein, 717. EJECTMENT, statement of defendant having brought ejectments and actions against tenants, and levied distresses, 336. statement of plaintiffs having brought an action of, 394. brought by lessor to recover possession of premises agreed to be let to the plaintiff in equity, statement of, 408. statement of an action of ejectment brought by a devisee in the names of trustees and executors, 548. plea to an ejectment bill negativing the averment as to there being outstanding leases, 648. ELECTION, prayer that defendants may elect either to accept the benefits given by a will and to confirm the will, or to renounce in favor of the plaintiff the benefits given tothem, 262. — (And see tit. Dower.) ENTRY, of stock in the bank books, interrogatory to prove, 717. interrogatories to prove copies of entries on the court rolls, ib. in parish register books, 718. in the register books of an ecclesiastical office for probate of wills, 719. interrogatories to prove the hand-writing of entries in books, and whether correct or not, and by whose direction made, 731. interrogatory to prove a copy of an entry in a book kept at the navy office, 733. interrogatory to prove entries in partnership books, 742. EQUITY, demurrers for want of, 623, 624, 628. demurrer to supplemental bill for want of, 638. 904 INDEX. EQUITY OP EEDEMPTION, all persons having an interest in, necessary parties to a bill of forclosure, 181, n. EXAMINATIONS.— (See Contents Chapter XIII.) observations as to framing, 663, n. EXCEPTIONS.— (See Contents, Chapter XIV.) statement of exceptions taken to an answer and allowed, 672. forms of, to answers, 612 to 6V5. observations as to framing exceptions to answers, 672, u. 673, n. forms of, to reports, 676 to 684. observations as to framing exceptions to reports, 676, u. EXECUTORS.— (See tit. Stock.) statements and charges in bills of executors having misapplied testator's moneys, in bills for account against, 100, 159, 225, 253. statement of one only of several executors having proved a will, and also of his bank- ruptcy, in a bill by creditors against all the executors, 143. poverty of, no ground for appointing a receiver, 240. must deposit papers and writings in their hands for the benefit of the parties interested, 245, n. statement of renouncement and disclaimer by executors and trustees, 251, 415. statement in a bill of an executor admifting a balance in his hands, payment thereof into court and investment thereof in the name of the Accountant-Genera], 404. statement of a cross-bill, praying that it might be declared that the plaintiffs in the original bill were not entilled to call upon the plaintiff in the cross-bill to make good dividends received upon a sum of stock by a deceased person, or that what he should be obliged to pay might be repaid him out of the assets of such deceased person, 420. statement of two executors having proved a will, that one alone acted, and received and applied the personal estate, and of large arrears being due from him at his death, 440. prayer that executors may be charged with moneys neglected to have been invested by them, 449. admission by executors defendants, of the testator's will and probate, and their pos- session of personal estate, for which they submit to account, but whether sufficient to answer plaintiff's demands cannot state, 590. admission by an executor, being also the testator's heir at law, of his will and codicil, setting forth the will more fully than stated in the bill, also of his having proved the same, and possessed the personal estate and received the rents of the real estate, 596. admission by defendants of having proved, and possessed assets, 597. demnrrer on the ground that plaintiff did not appear by the bill to have proved the will of his testator, 631. demurrer on the ground that plaintiff had not proved bis testator's will in the proper Ecclesiastical Court, 632. plea by, of will and probate,, 636. plea that defendant is not, 641. interrogatories for the examination of executors before the Master, 766, 772, 775. interrogatories for further examination of executors pursuant to a decree, 775. EXHIBITS, interrogatories to prove, 709, 712, 713 to 729. interrogatory to prove the contents of an exhibit, 716. EXPENSES, interrogatory to prove the average annual expenses of the family of a deceased person who was in his life-time employed as a treasury messenger, and as to declarations made by him as to what one child, not resident in his family, annually cost him ; also to prove the manner in which he usually travelled, and at what expense, 729. interrogatory to prove whether a person had other means of providing for his family, besides what he received as a treasury messenger, ib. FAMILY, interrogatory to prove conversations or declarations relative to the deceased's family and relations, or property to which he considered himself entitled, 699. inquiry as to the members of a family in proving a pedigree, 729. FAKM, interrogatory to prove when alteration was made in the out- fences of two farms, whether rent was paid as for two farms or as one farm; and whether one person attended at the rent-receipt day, and at the dinner given to the tenants, as sole tenant of the two farms, or whether two persons attended as tenants; also to prove whether previously INBEX. 905 FARM, continued. to a particular year taxes and rents were assessed as for two farms or as one farm, and whether the farms were reputed to be one farm or two farms, 730. interrogatory to prove knowledge of farms occupied by defendants, 739. FELONY, • demurrer to so much of a bill as sought a discovery which might subject the defend- ants to a charge of compounding, 630. FEME COVERT, commencement of bill by, where her husband is made defendant, 3. bill on behalf of, cannot be brought without her consent, ib. n, petition by, (with others) praying that her share of a sum of stock may be transferred to her husband, together with dividends accrued due, 510, (And see tit. Commission.) FENCES, — of farms, interrogatory to prove when altered, 730. FIERI FACIAS,— statement of the issuing of a writ of, 137. FINE, and non-claim, plea of, 645. cannot be pleaded in bar to a bill filed by tenant in tail to prevent the setting up of an outstanding term on the trial of an ejectment, 645, n. (The case there referred to has since been reported, 1 Sim. p. 349.) FOOTWAY, — information to restrain the breaking up of, 461. FORECLOSURE,— (See Contents, tit. Bills of Foreclosure.) prayer to have a mortgage security assigned, and in default of payment for a fore- closure, 28. as to the necessary parties to bills of, 181, n. et seq. mortgagee of copyhold not in possession may before admittance bring a bill of, 192, n. prayer for foreclosure of a term of years for raising portions, in default of payment by defendant, 313. statement of a bill praying, 431. bill of revivor and supplement for, ib. decree for, 829. short recital of prayer for, 865. FORFEITURE, by waste, and all penalties ought to be waived in a bill for restraining waste, 350, u. FORGERY, of the names of the plaintiff and other persons to false bills of lading, statement of, in a bill, 381. order declaring an account to have been forged, and recommending a prosecution for forgery, 846. GIFT, interrogatory to prove the purchase of stock by deceased persons as a gift for the plaintiff, and the transfer thereof after the death of one of them into the name of the plaintiff, 742. GOODS, sold and delivered by plaintiff to defendants, interrogatory to prove, 731. interrogatory to prove the amount due to examinants for goods sold and delivered, 762. GUARDIAN.— (See Contents, Chapter VII. tit. Petitions.) prayer for appointment of, of infant plaintiffs, with allowances for their maintenance and education for the time past and to come, 221, 296. HAND-BILLS, interrogatory to prove as an exhibit a copy of hand-bills distributed for discovery of a person, 719. HAND-WRITING, interrogatory to prove knowledge of, 731. of particular words contained in an exhibit, interrogatories to prove, 725, 745. — (And see titles Entries'; Letters.) HEIR AT LAW, of a testator, statement of in a bill, 152. and also customary heir, statements of, in bills, 365. out of possession, entitled to a discovery of deeds necessary to support his legal title, or to have terms put out of his way, 169, n. 645, n. disputing a will, allegation as to, in a bill, 178, 245. charges in a, bill relative to the heirs at law of several persons disputing the dispo- sitions made by their wills of moneys directed to be laid out in lands, 260. pretences and charges where will is disputed by, 266, 362. statement of heiress at law born after the decease of her father, defendant to a bill of foreclosure, 431. an infant, answer of, to a bill by creditors, 592. 906 • INDEX. HEIR AT LAW, continued. plea by, that he had no lands by descent, accompanied by answer admitting that he is, 647. interrogatories to prove, 732. decree declaring real estate to have desoensled to, 850. — (And see Contents, Chapter IV. Sect. 3, tit. Bills of Revivor and Supplement,) HEIR-LOOMS,— prayer for directions as to, 236. HIGHWAY, information to restrain the obstructing and breaking up a public road, 461. IMPROVEMENTS, interrogatories for account of moneys laid out in lasting improvements, 780. INOLOSURE, of common lands, interrogatory to prove that the lord of a manor assented to, 739. interrogatory to prove that the inhabitants or land-owners within a township had agreed to the inclosure of the common lands, and when the inclosure was likely to take effect, ib. 696. INCUMBRANCES, allegations in bills as to, 186, 190, 194, 197. — ^(And gee tit. Interrogatories.) INDEMNITY, — against plaintiff's claims, charge in a bill relative to, 16. INFANT. — (See Contents, Chapter IV. tit. Supplemental Bills, and Chapter VII. tit. Peti- tions; see also postea, titles. Supplemental Bills ; Tenant in Tail.) commencement of a bill on behalf of, 3. consent of, not necessary to a bill filed in his name, 3, n. bills by, for payment of legacies unnecessary, 220, n. statement of the person of an infant being identified, 367, 368. mode of framing the answer of, 568, 565, n. answer of, cannot be excepted to for insufficiency, 592, n. mode of framing answer where adult and infant defendants join, 595. INFORMATION.— (See Contents, Chapter VI.) commencement of, 5. cannot be dismissed without the consent of the Attorney-General, 5, u. statement of an information filed to establish a devise of an estate to a college, 470. statement of an information and bill filed to establish the custom to grind malt, corn, or grain, at the relators' mills, and to have all other mills suppressed, 479. interrogatory to prove that plaintiif informed one of the partners of defendant T. R. C. that he had entered into an agreement for purchase of premises, whether the agree- ment between defendants was then concluded, and whether witness informed T. R. C. of what he had heard, 750. INJUNCTION, prayer for a writ of, to restrain proceedings at law, 6, 7. waste, ib. prayer for, to restrain defendant from bringing an ejectment, 16. bill for, to restrain proceedings at law upon, and the negotiating of a bill of exchange, 29. bill for, to restrain proceedings on a foreign attachment in the Lord Mayor's Court, or any other proceedings at law, and to restrain the negotiating a bill of exchange, and also to restrain the garnishee from paying over moneys in his hands, 34. bill for, to restrain proceedings at law upon a bond and promissory note, and also to restrain the defendant from entering up judgment on a warrant of attorney, 41. bill for, by merchants, to restrain proceedings at law upon certain contracts obtained by fraud, 45. bill for, to restrain proceedings at law on certain bonds executed by the plaintiff, 53. bills for, to restrain proceedings in actions of ejectment, 64, 408. bill for, to restrain assignees from proceeding at law in an action of trover to recover possession of title deeds, 70. prayer for, to restrain the defendant from digging clay or gravel, and making bricks, or committing waste, and from making underleases or assignments (the bill being filed to set aside a lease), 83. bill for, to restrain the defendants from taking out execution on a judgment entered up on a warrant of attorney for securing an annuity, 90. bill for, to restrain the selling of a pirated edition of a book, 116, 121. bill for, to restrain publication of atrial, 121. prayer for, in a bill by creditors, to restrain executors from collecting outstanding per- sonal estate, and receiving cotton consigned to one of them, who had been the tes- tator's agent and consignee, 143. prayer for, to restrain a widow from proceeding in a writ of dower, 173. proceedings in actions for rent, 210, 211. an action of ejectment, and the levying distresses, 211. INDEX. 907 INJUNCTION, continued. prayer for, to restrain executors from receiving personal estate or tbe rents of real estates (in a bill by legatees,] 23T, 261, 265. prayer for, to restrain the felling timber trees, and committing waste, 267, 357. prayer for, to restrain the working of coal minxes, and disposing of coal and other minerals, 273. prayer for, to restrain the sale and transfers of stock, 295, 340. receiving partnership debts, 305 to 312. selling partnership stock, 312. trustees from acting, 331. a defendant from proceeding at law against tenants, and receiving rents or intermeddling with the trust premises, 337. prayer for, to restrain proceedings in actions against underwriters, 344, 349. bill for, to restrain the defendant from ploughing up fields and committing waste, 350. prayer for, (in bills for discovery) to restrain proceedings in actions, 396, 430. statement of prayer for, to restrain the defendants from delivering up deeds, 412. statement of, obtained upon affidavit before answer, to restrain proceedings at law, and service of the same on the defendant's solicitors, 342. prayer for, to restrain a defendant, a testator's heir at law, from applying to the Crown for a charter and license for the purpose of founding a college, 446. statement of an injunction obtained to restrain the transfer of stock, 353. statement of a perpetual injunction granted to restrain all tenants, &c. within a certain district, from erecting or using any mills to the prejudice of the soke and suit to be performed by them to the corn-mills belonging to the relators; also to restrain them from grinding any corn, &;c. had upon their lands or consumed in their houses within the district, at any other than the relators' mills; also to restrain them from buying or bringing within the district, for the purpose of sale, any corn, &c. or from using the same in their houses, or making, baking, or brewing any flour, meal, or malt, not ground at the relators' mills, 489. prayer for, to restrain defendants from buying, bringing, selling, consuming, or using within a certain district, any corn, grain, flour, malt, or meal, other than such as shonld be ground at the relators' mills, 500. INSCRIPTIONS, on tomb-stones, interrogatory to prove, as exhibits, copies of, 710. INSOLVENCY, charge of, in a bill, 30. of plaintiffs and of several meetings of their creditors, statements of, in a bill. 111. of a defendant, statement of, in a bill, and of the meeting of his creditors, and the assign- ment executed to a trustee for them, 143. of a mortgagor, and of an assignment under the insolvent debtors' act, statement of, in a bill, 199. of a defendant, and assignment made under the insolvent debtors' act to another de- fendant, 405. interrogatories to prove conversations respecting a bankrupt's affairs, and an assign- ment made by him, when insolvent, and a composition then proposed to his creditors, 700. — (And see tit. Bankrupt.) INSPECTORS, statement in a bill of a resolution made at a meeting of the creditors of insolvent part- ners, to appoint inspectors, and of their having taken upon themselves the manage- ment of the alfairs. 111. — (And see tit. Composition.) INSURANCE.— (See Contents, tit. Bills by Underwriters.) charge in a bill by creditors, that an insurance ought to be effected on a consignment of cotton, and prayer that the receiver may be at liberty to insure the same, 139. fraudulently obtained, may be set aside, 341, n. INTERESSE SUO, titles of interrogatories for examination of a person^ro interesse suo, 686. interrogatory for examination of a person pro interesse suo, 785. title of interrogatories for the cross-examination of a defendant, examined/iro interesse suo, 792. INTEREST, a general interrogatory may be exhibited to every witness, whether he has any in- terest, 792, li. a witness becoming interested after the examination, his depositions may be read, ib, interrogatory as to witness being interested in the event of the suit, whether he is not defendant in an action of trespass in which the title to the lands in question is de- pending, whether a verdict was not fonnd for tne plaintiffs at law, and whether execution is not stayed by injunction, 792. 908 INDEX. INTEREST, continued. interrogatory as to -whether witness has not become a co-partner with the plaintiffs in the concern carried on by them, and whether he does not claim a beneficial interest in the lands, the title whereto is in issue between the parties, 792. interrogatory as to whether witness has not an interest in the establishment of the will in question, T93. interrogatories for the examination of a witness on the voir dire as to his being in- terested in the performance of the agreement in question, or in the event of the suit, or as to his being under any obligation to pay or secure the defendant's costs, ib. INTERPLEADER.— (See Contents, tit. Bills of Interpleader.) what is sufficient to sustain a bill of, 205, n. rule as to costs of a bill of, ib. demurrers to bills of, for want of afBdavit annexed, 626. The word " interplead" not absolutely essential to be inserted in a bill of, ib. n. INTERROGATORIES, for the examination of witnesses in chief, forms of, 688, 758. forms of titles to, 685. form of the first general interrogatory, 687. forms of the concluding general interrogatory. 688. observations as to framing, 688. in bills, introductory words to, 5. interrogating part unnecessary in bills to perpetuate testimony, 363. relating to sale by auction, purchase by private contract, the title to the estate, and the purchase-money lying unproductive, 13. relating to applications made to the defendants, and the consideration of a bill of ex- chance, 40. relating to pecuniary dealings between the plaintiff and defendant, and as to books, accounts, &c. in the defendant's possession, 59. relating to an agreement set up by defendants, 64. relating to the execution of deeds, the acceptance and payment of bills, sale of an estate by auction, commission of bankrupt, proceedings, interest of moneys employed in trade, and for account of dealings, &c., 96. for a discovery of the number of copies of a book sold, and the prices and profits pro- duced thereby, 122. as to a defendant's claim to a mortgage, 164. as to trust estate and effects possessed by the defendants, and their application thereof, 1 64. for a discovery of the separate estate of the bankrupt, possessed or applied by as- signees, ib. for an account of a testator's personal estate, and the application thereof by the de- fendant, and also of the testator's debts, and what remain unpaid, also of his money out at interest, and on what securities, the interest and dividends accrued due in respect of the personal estate, and the moneys received by the defendant ; also of the mortgages and incumbrances affecting the testator's estate, and in whom vested ; also for an account of testator's real estates, the rental thereof, and of the rents and profits received by the defendant ; also as to the rental of a particular manor, and the fines set and payable upon the renewal of any leases, and all other casual profits, and of the moneys received in respect thereof, and from whom, 165. for the discovery of a testator's estates, the rental thereof, and the rents received by the defendants, 178. for a discovery as to the claim of a mortgage set up by a defendant, and as to the in- cumbrances affecting the mortgage premises, 187. as to incumbrances prior to the plaintiffs security, and also as to the claim on the part of a subsequent mortgagee, 191. relating to a claim made by a defendant as mortgagee, the validity of his security, his being arrested for debt, and his knowledge of the agreements for a mortgage executed to the plaintiff, 203. for discovery of deceased's personal estate, and the application thereof, 217, 437 ; and also as to debts, 237. for account of executor's receipts and payments, and of property subsisting in specie, and also as to books, accounts, 245. as to books, accounts, maps, rentals, &c., 255, 776. for account of testator's real estates, and the rental thereof, as to the time the defend- ants have been in possession, or any other persons, and by what right, 263. as to the incumbrances on the estates, and in whom vested— as to the rents received by the defendants — also for discovery of the personal estate, the application thereof. INDEX. 909 INTERROGATORIES, continued, in bills, and the amount undisposed of — also of the debts due from the testator, and on what securities, and what remained due, also as to title deeds, accounts, &c., 264. for discovery of deeds, receipts, &c. relating to the payment of an ancient rent, and of the lands subject to the payment thereof, 276. relating to the admission of copyhold tenants, the opening and working of seams of coal, the applications made to the defendants, the destruction of boundaries between the lauds, the admissions made by the defendants as to procuring the coal, also as to the value of the lands per acre, to be let, and as to a lease alleged to have been granted ; also as to plaintiffs title to the coal, and to an account, the quantities of coal procured, the moneys produced by sale thereof, and the quantities of coal re- maining unsold, 277, 278, 279. for an account of moneys received in respect of the rents and produce of a West India estate, 327. relating to the plaintiff having received on board his ship quantities of dollars, the signirtg of bills of lading, entries in the ship's manifest, the arrival of the ship, and delivery of her cargo at the bank, the applications by the parties entitled, the forgery of the names of the plaintiff and other persons to false bills of lading, an action brought for recovery of the value of an alleged shipment of dollars, applications made to the defendant for the particulars of his demand, and requiring the defend- ant to set forth all the particulars and circumstances relative to the alleged shipment of dollars; also as to the plaintiff's wituesses being resident abroad, 385 to 391. relative to an action brought against the plaintiff, and for a discovery of the particulars of all dealings and bill transactions between the plaintiff and defendants, and also of all books and accounts in the defendants' possession, 395, 396. for a discovery of the particulars of the debt claimed by the defendants, also of the goods and securities in their possession, and what balance is due from them, 399. in a bill of revivor and supplement, relative to the abatement of a suit, the grant of letters of administration, the claims set up by the defendant, and an action com- menced by him ; also as to the correspondence kept up by the defendant relative to the shipment of dollars made by him, and for a discovery of letters, papeis, &c., 428. as to a will and the possession of assets by defendants, and requiring an admission of assets or a discovery of the particulars of the personal estate, 434. relating to the filing of an original bill, the decree made at the hearing, the filing of bills of revivor, order made directing payment of money into court, the settlement of a testator's residuary personal estate, moneys received by the defendants, and the plaintiff's right to prosecute the decree, 451. relating to the writing and receipt of letters, and the contents thereof, and what has become of the same, 454. for a discovery of accounts and entries relating to the felling and sale of trees, wood, &c. and of the moneys produced thereby, 459. relating to an information and bill exhibited, the statements therein of deceased per- sons having been seised of certain mills, the execution of deeds, the solemnization and issue of a marriage, probate of a will ; also as to the mills having been kept in repair, and persons employed to despatch the business thereof; also as to the defen- dants being residents within a certain district, and having brought and consumed therein, &c. and having sold corn, and having ground corn at other than the rela- tors' mills, and their refusal to do suit and soke thereto, and for a discovery of what is due from them, and of all accounts, &c. in their possession, 495 to 500. INTESTATE, interrogatories for the examination before the Master of the personal representative of an administrator, as to his intestate's estate and effects, exclusive of his share in a partnership business, and also as to the debts which were owing by the intestate, 758. INVENTORY, prayer that an inventory may be made of the effects bequeathed to a widow for life, and deposited with the Master, 102, 230, 233. charge in a bill that administratrix has not exhibited an inventory into the Ecclesiasti- cal Court, or if exhibited, that the same is defective, and the particulars appraised at less than their real worth, 134, 230. .SSUE AT LAW, prayer for, in a bill by an heir at law to set aside a will, 75. to t"ry the validity of a will, prayer for, 260. statement of issues directed to try the validity of custom of doing suit and soke at the relators' mills, and of grinding corn used within a certain district at the same mills, and also whether such mills were sufficient to grind all such corn, and also of the verdicts found upon the trial of such issues, 487. 910 INDEX. ISSUE AT LAW, continued. prayer of a petition to vary minutes as to, 535 — (And see Contents, Chapter XVII. tit. Decrees and Decretal Orders.) JOINTURE, statement of a recovery suffered, and of a married woman joining, with a view to extin- guish her jointure, 527. decree directing confirmation of, 829. decree declaring plaintiff entitled to, and directing defendant to settle lands to be set out by the Master, ib. JUDGMENT, entered up on a warrant of attorney, statements of, 149. taken by confession in an action on a bond, statement of, 136. interrogatories to prove copies of judgments, '?21. interrogatory to prove moneys due to examinants, on judgment, and when judgment confessed, Y61. JURISDICTION, statement of a person being resident out of, 100, 415. KNOWLEDGE, of persons, interrogatories to prove, 687, 699, 752. of a person who entered the navy, and in what character, and what has become of him, interrogatory to prove, 733. of estates and premises, interrogatory to prove, 752. of a person, and how long witness was acquainted with him, in what circumstances and situation in life he was when witness first knew him, and afterwards when witness resided with him, interrogatory to prove, 752. of lands in defendant's occupation, interrogatory to prove the particulars of, 769. LAND-TAX, prayer in a bill by lessee for account of, and re-payment, 64. interrogatory as to the redemption of, 778. LANGUAGE, interrogatory to prove in what language an account and a copy thereof were written, and requiring the witness to translate the copy, 690. to prove in what language a person resident in England corresponded and conversed, also to prove a knowledge of his hand-writing, and in what works he was engaged, and where he carried on the same, 734. LEASE.- — (See Contents, Chapter II. titles Bills for Specific Performance of Agreements, and Bill to cancel Agreements and other Instruments.) of a farm, statement of, in a bill, 351. prayer of an original and amended bill for specific performance of an agreement for, 408. statement of a bill praying that a defendant may be compelled to obtain the renewal of a lease, and to pay the necessary fine, 433. of corn-mills, statement of, in fin information, 483, 492. statement (in a petition) of a bill praying that the defendants might be declared to be trustees for the plaintiff of premises of which their testator had obtained a renewed lease in his own name, and might be decreed to re-assign the premises to the plain- tiff, together with the indenture of lease ; praying also for an injunction to restrain proceedings in an action of ejectrhent, 548. '' interrogatory to prove the manner of granting leases, and renewal of leases held under an ecclesiastical corporation, 722. interrogatory to prove as an exhibit a counterpart of a lease, and that the same corres- ponded with a former lease, 722. interrogatory to prove as an exhibit a lease which had been tendered to the defendant, also to prove tender of the lease and counterpart, and request made to defendant to accept the lease and execute the counterpart, and his refusal to comply, 724. interrogatory to prove the provisoes and stipulations necessary to be inserted in a lease of beds or strata of coal, to prevent the lessee or grantee from working the coal, so as to destroy iron-stone lying underneath, and also to prevent the iron-stone from being rendered useless to the grantor at the will of the lessee or grantee, and as to witness's knowledge of any such leases, 725. decree directing execution of several leases, 830. LEGACY. — (See Contents, tit. Bills for Payment of Legacies, and also to carry the Trusts of Wills into Execution; also Chapter XVII. tit. Decrees and Decretal Orders.) bill to attach a legacy, whilst in the hands of the testator's executor, and for payment of the plaintiff's bond debt thereout, 135. bills by infants for payment of, unnecessary, 220, u. bill in the nature of a supplemental bill against the executor of one of the defendants to the original bill, who had died abroad without having put in his answer, he being INDEX. 911 LEGACY, continued. entitled to a legacy under his father's will in case he claimed the same within seven years, the payment whereof had been restrained by an injunction obtained by the plaintiff in the original bill ; the prayer of the supplemental bill is, that the legacy with its accumulations may be declared to be part of the deceased's personal estate, and may be applied in payment of the debts due to the plaintiff and the other cre- ditors, 453. LEGATEES. — (See Contents, tit. Bills for Payment of Legacies, and also to carry the Trusts of Wills into Execution.) as to necessary parties to bills by, 213, n. not excluded the benefit of a decree for account, by not coming in to claim, 214, n. one of the several legatees cannot sustain a bill on behalf of himself and all other lega- tees, for legacies charged on real estate, 224, n. taking in default of appointment, held necessary parties to a bill brought for a moiety of the residuary estate, 240, n. statement of a bill filed by residuary legatees, praying to have an account taken of the testator's personal estate, debts, &c. (one of the plaintiffs offering to account for the moneys received by him,) also that the residue may be ascertained and the executor charged with interest upon balances retained by him, that the shares of the plaintifls in one moiety might be ascertftined and secured, and the share of a deceased child paid to his representative, and the other moiety secured for the benefit of persons en- titled thereto, and that a sufficient sum might be invested to answer an annuity given by the will, 403. LEGITIMACY, of plaintiff, decree declaring, as established on the trial of an issue, 835. LETTER MISSIVE, prayer for, 6. who entitled to, ib. n. LETTERS, statement in a bill of letters in the defendants' possession, showing a fraudulent scheme formed by them, with the charge relative thereto, 48, 52. charges as to letters, &c. evidencing statements in the bill, 348. statement that defendants wrote letters to and received letters from a person abroad, 454. interrogatory to prove a correspondence by letters with the defendant, and the hand- writing of the letters if in the possession of the witness, and any admissions made by the defendant on the same being produced to him, 702. interrogatories to prove letters, as exhibits, 745, 750. LETTERS PATENT, statement of, granting corn-mills, parcel of the Duchy of Lancaster, to certain persons in fee, paying certain annual rents, 481. LICENSE, statement in a bill of a letter of license from creditors to a debtor, 34. statement of a license granted by the Crown to the Master and Fellows of a College, to purchase lands in mortmain, 470. LIEN, offer by plaintiffs, trustees, to discharge any lien which the defendants, as solicitors, might have upon certain deeds, 412. LIMITATION, plea of the statute of limitations to a bill by an administratrix for account, 655. plea of the statute of limitations to so much of a bill as sought a discovery of title- deeds, and of the defendant's title to the estates in question, 656. LIS PENDENS, assignment, pending a suit, is void, 135, u. LOAN, statement of loans made by executors upon personal security, 101. interrogatories to prove loans of sums of money, 734. interrogatories for examination of a person claiming to be a creditor, as to moneys in the examinant's charge stated to have been lent, 763. LORD MAYOR'S COURT, bill in, discovery in aid of a defence to an action pending there, 394. bill in, for discovery of property in the hands of the garnishees in aid of an attach- ment, 397. LUNACY, statement in a bill of a commission issued, verdict found by the jury, and the appoint- ment of committees of the person and estate of the lunatic, 257. statement in an answer of the issuing of commissions of, of the return made by jurors being declared insufficient, and of proceedings in the matter of the lunacy, 5'?7. 912 INDEX. LUNACY, continued. interrogatory to prove as an exhibit a copy of an inquisition of lunacy, and of the order directing a traverse, T20. LUNATIC, commencement of a suit on behalf of, 4. may be a party to a bill by his committee to set aside acts during his lunacy, 4, u. statement of death of, 258. demurrer to so much of a bill as sought to perpetuate the testimony of witnesses to the alleged will of a lunatic, 632. interrogatories for examination of persons before the Master, as to the property of the lunatic, the application of the rents, the repairs done to the estates, and whether necessary, and the redemption of land-tax, ill. MAINTENANCE, of infant plaintiffs, prayer for, for the time past and to come, 220, 221. of an infant defendant, prayer for allowance of, to his father, 233. pretences and charges as to, plaintiff disputing the application of his share of personal property, 294. statement in an answer of sums expended for maintenance and education of and for apprenticing an infant, 584. decree directing an inquiry by whom an infant had been maintained, the sums expended, and the allowance proper to be made for the time past and to come, and out of what fund, 852. MAPS, interrogatory to prove as exhibits copies of maps or plans and of a book of reference, and that in the originals a piece of land and stone quarry was contained therein, 720. MARRIAGE, bond given to refund part of marriage portion, fraudulent, 16, n. of a testator's daughter with consent of trustees, statement of, 335, n. of plaintiff's parents, statement and charges in a bill as to the validity thereof, the marriage being disputed, 368. interrogatories to prove ceremony of, 735. MEMBER OF PARLIAMENT, statement of a petition presented against the return of, 377. interrogatory to prove whether a deceased person voted for, and what parochial ofBces he served in the borough, 734. MEMORIAL, of an annuity, defect in, unless appearing on the pleadings or in evidence, no advan- tage can be taken thereof, 90, n. MESSENGER, interrogatory to prove that witness had a relation employed as a treasury messenger with one F. G., whether F. G. received the moneys which became due to him and paid over the same from time to time, 746. MILLS. — (See titles Corn-Mills; Custom.) MINES, interrogatories to prove knowledge of, and matters relative to the situation, draining, and working of coal mines, 735. MISTAKE. — (See Contents, titles Bills to cancel Agreements, Bills of Exchange, Bonds and other Instruments ; and Bills relating to Partnership matters.) MORTGAGE, prayer to have a mortgage security assigned, 28. security, prayer for sale of, and in case of a deficiency to be admitted a creditor against the general assets of the deceased mortgagor, 148. by demise, statement of, in an answer, and of default made in payment, 600. interrogatory to prove the amount due on mortgages and other securities, 761. prayer of a bill by mortgagees for an account and foreclosure against the second mort- gagee, then for a further account and for a sale of the property before the commis- sioners acting under the commission of bankrupt against the mortgagor, and in case the moneys to arise therefrom should not be sufficient to pay plaintiff's mortgage- money, interest, and costs, then for liberty to prove the remainder of the mortgage- money and interest against the separate estate of the bankrupt, 200. MORTGAGEES, statement of an award, (made in pursuance of an order made upon petition) declaring the petitioner to be a mortgagee, and fixing the value of his security at which price he was to become the purchaser thereof, and also ascertaining the amount in respect of which the petitioner was to be entitled to prove under a commission of bankrupt issued against the mortgagor, 519. interrogatories for the examination of mortgagees as to principal and interest due, how INDEX. 913 MORTGAGEES, continued. long the examinants had been in possession, and what ihey had or might haTe re- ceived, 778. interrogatories for the examination of a mortgagee of an estate in the West Indies as to principal and interest due, also as to.moneys laid out in repairs or lasting improve- ments, and as to rents received or which might have been received, also as to the names of the managers of the estates in question, and the number of negroes or slaves on the estates at the time the examinant took possession, the issue and increase thereof, and which of them have been removed or sold, 779, 781. interrogatories for the examination of a mortgagee of a West India estate, to prove that the crop on the plantation was sold by iiim with the estate, and that he has converted the same to his own use, also whether he has cleared the estate from all duties and incumbrances, what securities he held besides the testator's bond and the mortgage, and whether he could not have enforced payment thereon, without resort- ing to the testator's bond, 781. — (And see tit. Award.) MULTIFARIOUSNESS, objection for, must be taken by demurrer, 627, n. demurrers for, 627, 628. NAVIGATION, statements of acts of parliament, and of the works performed pursuant thereto, for making rivers navigable, 536, 539. NATY, interrogatory to prove knowledge of a person who entered the navy, and in what character and what has become of him; also to prove a copy of an entry in a book kept at the navy office, 733. NB EXEAT REGNO, prayer for writ of, 7, -29. under what circumstances the writ of, will be granted, 106, n. 524, u. will not to be granted for interim alimony before a decree in the Ecclesiastical Court nor even after a decree pending an appeal from that decree, 522, n. petition by a married woman for writ of, to prevent her husband from going abroad until he had settled alimony upon her, 522. part of a petition presented by the plaintiffs in a cause, praying for writ of, against the defendant in respect of a debt arisen on mercantile transactions, 524. NEXT OP KIJ>I.— {Sen Contents, tMe, Bills by next of Kin for Account.) bill by the heir at law and one of the next of kin of a deceased person, praying inter alia, for an account of the deceased's personal estate and payment of the plaintiffs share of the residue, 71. statement in a bill showing the plain tiff to be the nearest of kin to a deceased person, 393. plea that plaintiffs are not, and averring that one of the defendants only sustains that character, 648. NON-CLAIM,— plea of a fine and, 645. NOTES, interrogatory to prove promissory notes as exhibits, 713. interrogatory to prove a promissory note as an exhibit, 727. interrogatory to prove the amount due to examinants on promissory notes, 762. NOTICE, to vendor of purchase-money lying unproductive, essential, 12, n. charge of, in a bill, 16. to a mortgagee, of plaintiffs having a prior charge upon the mortgaged premises, charge of, in a bill of foreclosure, 199. statement of service of, 265. interrogatory to prove as an exhibit a copy of a notice, and when such notice was served, by whose direction and by whom signed, 720. interrogatory to prove as an exhibit a notice sent to the plaintiff's solicitor by the solicitor for the defendants, 726. interrogatory to prove service of notices npon the plaintiffs, by whom signed, and the contents thereof; also to prove as an exhibit a copy made by witness of the notices, ib. to defendant, of plaintiff's claim to an estate, interrogatory to prove, and whether given before or after defendant had a charge thereon. 738. interrogatories to prove that defendants had, previously to their purchase, notice that the vendor's title was defective, 752. OBJECTIONS,— 672, n. OFFER, „„,.,. on the part of a plaintiff to pay the balance, if found against him, not necessary in a bill, 60, li. on the part of plaintiffs, to discharge any lien on deeds which defendants might have, 412. 914 INDEX. OFFER, continued. by defendant, lord of a/aanor, to admit the rightful tenant on payment of the custo- mary fine, 595. made to plaintiff, interrogatory to prove, 738. by petitioner, on having attained twenty-one, to execute conveyances of estates sold during her minority, 815. OPINION, as to the power of the Lord Chancellor, by order of the House of Lords, of granting the exclusive right of publication of the trial of a peer, and whether an injunction could be obtained in equity, 123. as to the course to be adopted by the first mortgagee against a second mortgagee and the assignees of the mortgagor bankrupt, 201. on the construction of a will with regard to a clause contained therein, declaring the provisions thereby made for the widow to be in bar of all claims under a settlement, 553, n. ORDER,— (J«;erZoc«