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and the defendant Banister was ordered to pay the respondent £150 and to the appellant £100 out of the rents and profits of the estate in his hands, in order to enable them to proceed to such trial.

[399] The appellant being advised it was necessary for him to prove the said John Metcalfe's will at the trial, and the original will being by order brought into court, he, on the 1st of July 1719, moved the court, that the said will might be delivered to him, to the end he might shew the same to some persons who were likely to know the hand-writing of the witnesses thereto, they being all dead; but it was then ordered that the will should be delivered to such person as the respondent should think proper to be intrusted with it, to be nominated by her in two days, and to remain in his hands, in order to be shewn to such persons as the appellant should desire. But the appellant, for want of having the will delivered to him, in order to be carried down into Staffordshire, to show to some persons there, who were acquainted with Sir Thomas Pershall's hand-writing, he being a witness to the said will, was not prepared with witnesses to go down to the assizes at York, to prove the said Sir Thomas Pershall's hand-writing; and therefore, on the 11th of July 1719, at least a week before the assizes, the appellant gave notice to the respondent's agent and solicitor, in writing, that he could not appear at the assizes, to make any defence at the trial, for want of having Mr. Metcalfe's original will, to shew to some persons who were acquainted with Sir Thomas Pershall's hand-writing; and accordingly the appellant did not go down to York, or make any defence at the trial; so that the respondent obtained a verdict by default.

On the 10th of December 1719, the causes were heard on the equity reserved; when it was decreed, that the Lady Pershall should have possession of the moiety of the estate in question; and that the receiver formerly appointed by order of the court, should account before a Master, and pay to her all the rents in his hands; and that Banister should also account for and pay to the respondent all the rents in his hands, and he was to be allowed the £150 which he had paid Lady Pershall, and also £120, which in the decree was said to have been paid to the appellant, pursuant to the order made on the former hearing; and the appellant was to pay 40s. costs to Lady Pershall, which she was ordered to pay to Banister, and a perpetual injunction was ordered to quiet the respondent in possession; and the appellant having received the said £120 in order to make his defence at the trial, he was ordered to pay the same to the respondent and it was further ordered, that the appellant's cross bill, as to the respondent, should stand dismissed, with costs to be taxed; and that the appellant should pay the respondent the costs of the suit wherein she was plaintiff, to be taxed by the Master; and that all the deeds and writings belonging to the said moiety, should be brought before the Master; and that the will of Mr. Metcalfe should be left with the Register, subject to the further order of the court.

From both these decrees of the 24th of January 1718, and 10th of December 1719, and also from the order of the 1st of July 1719, the appellant appealed; insisting (J. Willes, W. Fortescue), that Metcalfe's will having been read at the first hearing of the cause, ought to have [400] been admitted as a good will, at least as to the appellant's demand, after above forty years quiet possession under it; and that after so long an enjoyment, and when all the witnesses to the will were dead, the appellant, who had no other claim upon the estate, but as a bona fide creditor for money actually advanced to Higgons, who was himself above twenty years in quiet possession of the premises, ought not to have been decreed to go to a trial, upon the validity of this will; and more especially, since Sir Thomas Pershall, the respondent's own husband, was one of the witnesses thereto. That if the trial had been properly directed, yet the original will, which the appellant was to support at such trial, and under which he was to make his defence, ought to have been delivered to him, and not to such person as the respondent should name, she claiming the premises in question as one of the coheirs at law of her father, the testator and though this order for the delivery of the will, was the reason why the appellant could not defend himself at the trial; yet the verdict then obtained by default, was apprehended to be the only foundation for decreeing a perpetual injunction against him; and had since been attended with this further bad consequence, that the will was now pretended by the respondent to be lost, though by the decree it was expressly ordered to be left with the Register of the Court of Chancery, but which had never been done. That the appellant ought