Page:The English Reports v1 1900.pdf/1040

to have retained the money paid him by Banister, in part of what was ordered him by the Court of Chancery, and what other sums he had before received of Banister, and likewise to have had the money remaining in Banister's hands at the time of Higgons's death; or at least so much as would make up the £250 assigned to him by Higgons, in part of his debt; and if there was not sufficient for that purpose, the respondent ought to have paid the appellant the £150 which she received of Banister. That even if the respondent had made out a good title to the premises in question, yet she ought not, under the circumstances of this case, to have had an account of the rents and profits, for any longer time than from the filing of her bill in 1712; but the rents and profits received by Higgons, prior to that time, or by any other person for his use and benefit, ought to have been applied towards satisfaction of his just debts. That considering the whole circumstances of the case, and that the appellant was a bona fide creditor; that there had been above forty years possession under Metcalfe's will; that there was but one verdict in favour of the respondent, and even that obtained by default, in the manner before mentioned, it was apprehended to be exceedingly hard to decree a perpetual injunction, to quiet the respondent in the possession of the premises, and not leave the appellant to pursue his remedy against her at law, as he could, for the recovery of his just debt. But in all events, his bill ought not to have been dismissed with costs; nor ought he to have been decreed to pay the respondent the costs of the cause wherein she was the plaintiff. And therefore it was hoped, that the said several decrees and order would be reversed.

[401] On the other side it was contended (C. Talbot, W. Hamilton), that the will never having been proved, and the witnesses examined in the cause having convincingly proved Metcalfe's insanity, at the time of the pretended execution of this will, the court very justly refused to intrust the original will, which laboured under such manifest objections, with the appellant, in order to prevent any ill use which might have been made of it; but directed it to be put into the hands of a person nominated by the respondent, and by him to be shewn to such persons as the appellant should desire. That the appellant had accordingly an opportunity of seeing the will; and he also brought several persons to look at it, particularly the son of William Ward, one of the pretended witnesses; and if Ward really was a witness, there could be no great difficulty for the son to prove the father's hand-writing. Nor could it be supposed difficult to prove the hand-writing of Sir Thomas Pershall, the other pretended witness, he being a person very well known in the world; and the appellant had actually £20 paid to him for carrying down two witnesses, whom he alledged he had in town to prove Sir Thomas Pershall's hand. That if it had been necessary to carry the will into Staffordshire, Freeman, in whose hands it was, offered to go there with it, for so small a sum as five guineas; and if he had in any manner misbehaved himself, the appellant might, and probably would have applied to the court, when proper directions would doubtless have been thereupon given. That this will was never proved, either in the Spiritual Court, or in the Court of Chancery; but Eleanor, the pretended devisee and executrix thereof having renounced, administration was granted to William Ward, one of the pretended witnesses to the will, who, upon that Occasion, must have sworn that he believed the deceased died intestate. That the appellant made no attempt to prove the will, or examine any witnesses thereto, before the cause was heard; and though he was indulged with an opportunity of making proof thereof at the trial, yet he did not think fit so to do, or even to make any defence, nor to move for a new trial, when the cause was heard upon the equity reserved; but by his acquiesconce under the last decree, had induced the respondent, relying upon the justice thereof, to sell the estate for a valuable consideration. And therefore it was hoped, that the decrees and order would be affirmed, and the appeal dismissed with costs.

After hearing counsel on this appeal, it was ordered and adjudged, that the orders or decrees therein complained of, of the 24th of January 1718, and the 1st of July 1719, should be affirmed and it was further ordered and adjudged, that so much of the decree of the 10th of December 1719, as directed costs in equity to be paid by the appellant, in either of the two causes, should be reversed; but that the same decree, in all other respects, should be affirmed; and it was further ordered, that what of the said costs in equity the appellant might have already paid, should be repaid to him by the respondent. (Jour. vol. 23. p. 48.)