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involved in debt, and that he had applied a considerable part of the monies received by him towards payment of his own debts, and squandered away other parts thereof in an expensive and pompous funeral for the testator, and by extravagant presents under pretence of mourning; particularly £50 [508] to the Surrogate, when he obtained the probate, and by an expensive way of living, and setting up an equipage; that the monies so received by the appellant were in danger of being lost, and that some of his children were infants.—Wherefore the respondent, by his said bill, prayed the aid of the court to compel the appellant, as being only in the nature of a trustee under the pretended will, to bring into court the monies received by him, and the tallies and orders of the Exchequer, and other securities and books of account relating to the testator's estate, that the same might be secured and preserved, for the benefit of the persons who should appear to be entitled thereto; and that the appellant might be injoined from receiving any more of the testator's estate, and from alienating or disposing of the same, till the matters in question should be finally determined; and that a receiver might be appointed to receive the interest and produce of the estate, to the end the same might be put out at interest, and improved.

As to so much of this bill, as sought to impeach the last will of the said Mr. Powell, whereof the appellant was named executor, relating to his personal estate, on pretence of insanity, or that the same was not duly made or published; or as prayed, that the appellant might give an account of the books of account, tallies, and orders of the Exchequer, securities, or of any part of the testator's personal estate; or as sought to compel the appellant to bring into court any of the books of account, or any securities, or other personal estate of the testator, or to restrain the appellant from receiving any part of the said personal estate, or to have a receiver appointed thereof, the appellant demurred and for causes of demurrer, shewed, that it did not appear, or was suggested in the bill, that the respondent had any probate of the will, of which he claimed to be executor, granted by any ecclesiastical or other court, and was no ways entitled to commence any suit in the said Court of Chancery, as executor, and had not, by his bill, any ways entitled himself to any account of the said personal estate.—And for that it appeared by the said bill, that the Prerogative Court had granted to the appellant, the probate of the last will of the said Mr. Powell, whereof he was appointed executor; and for that the sanity or insanity of the said Mr. Powell, and the due execution of a will relating to personal estate, solely belonged to the jurisdiction of the Ecclesiastical Court. And the appellant by his answer denied, in general terms, all manner of fraud, circumvention, misrepresentation, or other indirect means and practices; and said, he did not know or believe, that the testator was, at his decease, seised of, or entitled to any real estate, either in law or equity.

Upon arguing this demurrer before the Lord Chancellor Macclesfield, on the 18th of December 1723, his Lordship was pleased to over-rule the same.

And the next day, upon the respondent's motion, his Lordship was pleased to order, that the appellant should forthwith, upon oath, bring before Mr. Holford, one of the Masters of the said [509] court, all the Exchequer orders and tallies, securities, books of account, notes, papers, and writings, which he had in his custody or power, relating to the testator's estate; and should also, within three weeks, bring before the said Master, all the money, which, by the inventory, affidavits, and declarations, made and exhibited in the Prerogative Court, appeared to have been received out of the testator's estate, except £2000, and that the Master should appoint a receiver, to receive and get in the said testator's estate, and to bring the same before the said Master; and that the appellant should be injoined from receiving any more of the estate, until further order; and that the monies which should be brought before the said Master, should be placed out at interest, on government, on other good security.

Upon the affidavit of the appellant's not being to be found, the Lord Chancellor, on the 9th of January following, ordered, that leaving a copy of a writ of execution of the said order of the 19th of December, at the appellant's house, and another with his clerk in court, should be deemed good service. Which being served accordingly, and the appellant not having produced the said securities and money before the Master, as appeared by the Master's certificate, his Lordship, on the 14th of the same month, was pleased to order, that the Serjeant at Arms, attending the court, should immediately take the appellant into his custody, and bring him to the bar of the said court,