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fine and recovery were declared to be, as to one third part of the said three fourth parts of the said moiety of the premises, to the use of the said Lady Catherine Jones and her heirs; one other third part thereof, to the use of the said Thomas Hewett and Frances his wife, and their heirs; and the other third part to the use of the said Thomas Hawker and Elizabeth his wife, and their heirs.

The appellant being entitled to the other moiety of the premises, and refusing to join in a division or partition thereof into equal moieties, and the tenants refusing to pay a moiety of their rents to the respondent Lady Catherine Jones, Sir Thomas Hewett and the respondent Dame Frances his wife, Thomas Hawker who had survived the said Elizabeth his wife, and Cecil Mignon, who were entitled to one moiety of the premises; they, on the 10th of March 1721, exhibited their bill in the Court of Chancery, against the appellant and Nathan Izod, William Clark and Wil-[116]-liam White, the tenants of the premises, to have a partition of the whole estate as against the appellant; and to compel the tenants to pay a moiety of their rents to the plaintiffs, from the death of the said Cecil Fiennes.

The said Thomas Hawker and Cecil Mignon dying, the respondents Lady Catherine Jones, Sir Thomas Howett and Dame Frances his wife, and Peter Hawker the son and heir and administrator of the said Thomas Hawker, in whom three fourth parts of a moiety of the said promises became vested, exhibited their bill of revivor against the appellant and the said tenants; and afterwards amended the same, by making the respondent Thomas William Burman, the devisee and executor of Cecil Mignon, and the respondent Fiennes Twisleton her son and heir, who claimed the other fourth part of a moiety of the premises under the said Cecil Mignon, parties; and the suit was afterwards revived accordingly.

The appellant and the tenants of the premises, and the respondents Thomas William Burman and Fiennes Twisleton, answered those bills, and Burman by his answer insisted, that he was the devisee and executor of Cecil Mignon, and as such was well entitled to one fourth part of the moiety in question, and the rents thereof from the death of Cecil Fiennes.—The appellant by his answer, inter alia, insisted, that the said three fourth parts of the moiety did not, upon the death of Cecil Fiennes without issue, vest in the respondents Lady Catherine Jones, Dame Frances Hewett, and Elizabeth the wife of the said Thomas Hawker, but that the whole moiety upon the death of Cecil Fiennes, came in fee-simple to the said Cecil Mignon, as her heir at law; and that the said Cecil Fiennes was by the limitations in her mother's will, tenant in tail of the said moiety, or of the trust thereof, or had such estate or interest therein, that by a fine and common recovery she could dock or bar the same, and all the remainders thereupon limited by the will of her said mother Frances Ellis; and further insisted, that Cecil Fiennes being so seised of a moiety of the said premises, she, together with her husband William Fiennes, in July 1693, by deed, fine and recovery, duly levied and suffered, conveyed the said moiety to the Lord Viscount Harcourt and his heirs, to and for such uses as she should by any writing under her hand and seal appoint.—The appellant further stated, that in 1695, the said William Fiennes purchased the other undivided moiety of the premises to him and his heirs; and dying without issue in 1699, that moiety descended to the appellant as his brother and heir. That upon the death of the said William Fiennes, several disputes and differences arising between his widow and the appellant, touching his real and personal estate; for compromising thereof, articles of agreement were made and entered into between the said Cecil Fiennes and the appellant, dated the 22d of March 1699, whereby she agreed, inter alia, to join in a sale of the whole estate at Norton, and that one moiety of the money arising thereby should be paid to the appellant; and as to the other moiety, the said Cecil Fiennes was to have thereout £500 [117] and the interest of the residue during her life, with power to dispose of £1000, and that the residue should come to the appellant.

In Michaelmas term: 1724, the appellant exhibited a cross hill against the Lord Viscount Harcourt, the respondents Lady Catherine Jones, Sir Thomas Hewett and Dame Frances his wife, Peter Hawker, Thomas William Burman, and Fiennes Twisleton, to have a performance of these articles, and a conveyance of the said Cecil Fiennes's moiety of the said premises; to which bill the several defendants put in their answers, before the end of June following.

The original cause came on to be heard before the Lord Chancellor King, on the