Page:The English Reports v1 1900.pdf/1031

After the death of Mr. Pigot, the respondent being present at the inspection of his papers, amongst which was found the said bond, applied to the appellant Mary, and desired she would make him a present of it, but did not pretend any right thereto; and to induce the appellant Mary to deliver the same up, he promised to be her counsel, and to serve her on all occasions as long as he lived; and several of the testator's relations then present backed the respondent's request, and told the appellant Mary they would also take it as a favour; upon which, and other assurances of the respondent's friendship, the appellant Mary told him, you may be easy, for it is safe, in my hands. But the respondent hinting at accidents which might put it out of her power, such as matrimony; the appellant Mary, in confidence of the respondent's assistance and friendship, replied, If I marry, I will deliver the bond to you the night before.

The respondent having afterwards acted, as the appellant Mary apprehended, in many respects very unfriendly by her, and she intermarrying with the other appellant, they caused the said bond to be put in suit against the respondent.

To stay the proceedings in which suit by injunction, the respondent, in 1721, exhibited his bill in the Court of Chancery against the appellants; charging therein, that Mr. Pigot had given express orders to the appellant Mary, to deliver up the said bond, and prayed a discovery thereof, and that the same might be delivered up accordingly.

To this bill the appellants put in their answer; and the appellant Mary positively denied, that Mr. Pigot ever gave her any orders to deliver up the bond; but owned that he declared, in his last sickness, and within a few days before his death, that if the respondent proved her friend, and was not able to pay the bond, she might then spare him as he deserved; and that Mr. Pigot, at the same time, gave directions about his funeral; and that this was the last discourse of Mr. Pigot to her, touching the said bond, or any other of his temporal concerns.

On the 22d of February 1723, the cause was heard before the Lord Chancellor Macclesfield, who was pleased to decree, that the bond should be delivered up to be cancelled, and satisfaction acknowledged on the record of the judgment given by order of court upon the said bond; and that the appellants should pay the respondent his costs, both at law and in equity, to be taxed by the Master.

[388] From this decree the appellants appealed; insisting (J. Darnall, W. Hamilton), that it was not pretended by the respondent, that he ever paid or satisfied the bond in question, or that the same was not given for an honest and just debt, or that he was not in circumstances to discharge it. That the appellant Mary expressly swore in her answer, that Mr. Pigot gave her no orders to deliver up the bond; and as to the respondent's pretence, that such orders were given in consideration of, and as a recompence for his great services, it appeared by the proofs in the cause, that the respondent received and accepted of £100 from Mr. Pigot in full for such services; which Mr. Pigot then declared he thought a sufficient gratuity for what the respondent had done for him, and therefore required a general release, which was accordingly given. That it was of very dangerous consequence, to admit proof of parol orders to defeat a written will; but as this fact was denied by the answer, and not supported by the proofs in the cause, the bond ought not to have been decreed to be delivered up; but the most that should have been done, was to have directed a trial at law, and which the appellants counsel prayed for at the hearing. That as the respondent's pretence for having the bond delivered up, was founded only upon a voluntary order, without any valuable consideration, and as the action brought upon the bond, was in the appellant Mary's capacity of executrix; it was conceived, that under these circumstances, there were not sufficient grounds for making the decree.

On the other side it was contended (T. Reeves, C. Talbot), that a parol order, attended with Mr. Pigot's declarations in his last sickness, and his express directions given to the appellant Mary, her acknowledgment thereof, and her express promise to deliver up the bond, pursuant to those directions, were sufficient evidences of a trust reposed in her by the testator for that purpose; and her promises were also sufficient to enforce a performance of such trust. That the respondent's equity was founded on matters within the knowledge and privity of the appellant Mary, and on her own breach of trust, in putting the bond in suit, contrary to the testator's orders, and her express promises; and therefore the appellants were very justly decreed to pay the respondent his costs, both at law and in equity.