Page:The English Reports v1 1900.pdf/1118

In 1716, Henry Mannaton died; and in July 1721, the said Martha his wife, who had the equitable right to the money due on the said bonds, and always had the custody and possession of them, also died; having before her death made her will, and thereof appointed the said Martha Radcliffe executrix and residuary legatee.

Jasper Radcliffe left, at his death, three sons, Jasper, Andrew, and Walter, the present appellant. The two first dying without issue, and the last of them in 1716, the appellant, from that time, as heir to his said father and brothers, and as executor to his mother, who was the surviving trustee of the 500 years term, received the rents, issues, and profits of the trust estate charged with the said £1400, and with the said bond debts, and all other debts and legacies of Jasper Radcliffe his father.

On the 18th of May 1721, the said Martha Radcliffe married Mr. John Fursman, Clerk, with the consent of her mother; but by articles, dated and executed the day before such marriage, and to which the appellant was a party, as a trustee for the said Martha his sister, it was agreed, that the said £1400 should be to the separate use of Martha for life, or as she should appoint; or otherwise to the issue of that marriage, as directed by those articles; and that, whatever other real or personal estate should come to the said Martha from Martha Mannaton, or otherwise, should belong to her the said Martha, and be to her separate use; and should be vested in the appellant and Francis Gregor, Esq. for her separate use, and for such other uses as she should by will or writing appoint.

Accordingly Mrs. Fursman, by her will, dated the 19th of May 1723, after some particular legacies, gave the residuum of her personal estate to the appellant and Francis Gregor, and other trustees therein named, in trust for the child she then was big with, which was the respondent; and made her husband executor, and died on the 4th of June 1727, leaving the respondent her only chlid; and Mr. Fursman thereupon proved her will in the proper Ecclesiastical Court.

Francis Mannaton, Esq. executor of the said Henry Mannaton, being satisfied that the bonds were originally the separate property of Martha, the wife of the said Henry Mannaton, his testator, on the 19th of October 1728, declared the same under his hand and seal, and that they therefore belonged to the respondent. And John Towgood, administrator de bonis non of Jane Davy, the obligee in one of the said bonds, by writing, dated the 21st of January 1728, and Thomas Mordaunt and Mary his wife, formerly Mary Andrews, the obligee in the other of the said bonds, declar-[516]-ed, by writing under their hands, dated the 13th of November 1728, that the said bonds belonged to the respondent by title under the said Martha Mannaton, for whom the said Jane Davy and Mary Andrews were trustees, and to whom they were near relations.

Application being made to the appellant on behalf of the respondent, for payment of the said legacy and bonds; and he having refused to pay the same, a bill was, in Easter term 1729, exhibited against him in the Court of Chancery, in the name of the respondent, by her next friend, to compel him to pay the same.

This bill charged, that the appellant well know or believed, that these bonds were never paid; and as a demonstration thereof, that the appellant himself, or some person on his behalf, so declared or stated in some case for the opinion of some counsel but to conceal the truth of such case, he stated the same by way of A. B. and C. and other letters; and in particular stated, that A. B. innuendo the said Jasper Radcliffe the father, died about four years after giving two bonds, innuendo, the said two bonds, without payment thereof; and further stated, that the eldest son of the said A. B. died about seven years after his father, without paying any part of the principal or interest due on the said bonds; and then consulted, whether length of time would not prejudice the respondent's right to the said bonds. The bill therefore required a particular discovery of these facts, and that the said case might be set forth in hæc verba & literas.

To so much of this bill as required the appellant to set forth in hæc verba & literas the said case stated by him for the opinion of counsel, or to what counsel such case was stated, or what opinion was given thereon, he demurred; alledging for cause, that the plaintiff was not entitled to any such discovery, and that the opinion was taken for the appellant's own private use and satisfaction.