Page:The English Reports v1 1900.pdf/1164

In pursuance of this decree, the said Francis Chichester paid Susannah £1575 in full for her portion and interest; and in Michaelmas term 1698, he exhibited his bill in Chancery against Henry Chichester, as the executor of Dorothy his wife, who was executrix of John Chichester, in order to be re-imbursed what he had so paid to Susannah, out of the personal estate of John; but Francis and Henry both dying soon afterwards, the suit was revived by the respondents against the appellants, as their respective personal representatives and the defendants, by their answer, insisted, that the personal estate of John Chichester was wholly discharged from this demand, by Lord Somers's decree; and they also insisted on that decree, in bar to any discovery of John's assets.

On the 1st of February 1703, this cause came on to be heard before the Lord Keeper Wright, who decreed an account to be taken of the personal estate of John Chichester, come to the hands of Dorothy his late wife, or of Henry her late husband, or of any other person or persons to or for the said Dorothy's use; and also an account of the rents and profits received by the said John Chichester, out of Sir John's trust estate, which were not by him applied according to the trust; and of the rents and profits received by Dorothy of the same trust estate, after the death of John Chichester; and likewise of the rents and profits by her also received out of John Chichester's trust estate; and the Master was to enquire, whether Dorothy enjoyed any part of the estate of Francis Chichester, which was not part of her jointure; and in case the Master should so find, he was to take an account of what she had so received out of that estate and it was ordered, that what should appear to be due on taking the said several accounts, after all just allowances, should be paid and applied towards reimbursing the plaintiffs what the said Francis Chichester, their testator, had paid to the said Susannah for her portion, interest, and costs; and the costs of the suit were reserved, until after the accounts should be taken.

The Master, by his report of the 19th of December 1704, certified, that there had come to the hands of Dorothy and her husband Henry, of the personal estate of John Chichester, £1500, and also, that Dorothy enjoyed some part of the estate of Francis Chichester, not comprised in her jointure, and had thereout received £297 6s. 10d., making together £1797 6s. 10d. And by another report of the 23d of February 1705, the Master certified, that Francis Chichester had paid Susannah, for her portion, interest, and costs, the sum of £1575.

But the defendants, instead of paying this money, exhibited a bill of review, to set aside the decree and all subsequent proceedings; and that hill having been dismissed on a full hearing, they took exceptions to the reports, in which being equally unsuccessful, they at last brought the present appeal insisting (S. Dodd), that by John [18] Chichester's deed of trust, under which the respondent Arthur claimed the estate, it appeared that Susannah's demands ought to be a charge on the trust estate; and that therefore, the personal estate ought to have been enjoyed by Dorothy, discharged of those demands. And that by the decree, the appellants were made personally liable to re-imburse the respondents what Francis had paid Susannah, without directing any account of what assets had come to their hands; whereas no assets, either of Sir John Chichester, John Chichester, or Dorothy Chichester, had ever come to their hands; and what they had received of the personal estate of Henry Chichester, had been fully administered by them before the commencement of this suit.

On the other side it was contended (T. Powys, T. Parker), that though John Chichester did make a security out of his lands for the payment of his debts; yet that security did not discharge his personal estate, which still continued liable, and ought to be taken in aid of the real estate; and that there was no case, where it had been otherwise determined, upon the like reason and circumstances. That the objection as to assets had never been made or thought of till now; for the appellants had neither at the hearing of the cause originally, or upon the hill of review, or even by their answer, complained of the want of assets of Henry Chichester, come to their hands; but, on the contrary, insisted, that such assets were no way liable to the respondent's demands. If, however, the appellants had thought an enquiry into assets material, it was incumbent on them to have prayed for such an enquiry at the hearing, and it would of course have been directed; but the reason why no such direction was given, was not only because the appellants did not so much as ask it, but because the defence they chiefly relied on by their answer, and at both the hearings, was, that the personal estate of John