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In December 1676, William Waad, the son, mortgaged the manor and lands of Battles Hall, together with the manor and lands of Peyton's Hall, to Samuel Hind for 99 years; subject to redemption, on payment of £800 and interest; £500 part whereof was the money of Edmund Hussey, to whom the respondent Mary Moore was administratrix; and the remaining £300 belonged to Hind himself, who afterwards died, leaving the respondent Richard Hind, his executor.

[547] In October 1686, William Waad died, leaving Ann his widow, and two children, namely, William and Ann, who both soon afterwards died infants, and without issue.

In 1695, Lady Douglas, the jointress of Battles Hall died; whereupon Ann, the widow of William, entered on the estate; but an ejectment was soon afterwards brought against her for the recovery of it by the appellants. This ejectment was tried at the bar of the court of King's Bench in Easter term 1696, when the defendant set up a recovery suffered by her husband, and insisted, that by virtue of this recovery, all the subsequent remainders in the original settlement were barred; but it appearing that the recovery was suffered in the life-time of the jointress, who was no party to it, the court were of opinion, that it was void for want of a good tenant to the precipe; and therefore, a verdict was given for the plaintiff, and judgment entered up; and upon a writ of error in parliament, this judgment was affirmed. (Jour. vol. 16. p. 22.)

Soon afterwards, the respondent Moore and his wife brought their bill in Chancery against the appellauts, and also against the respondent Hind, to have a satisfaction of what was due to them upon the mortgage or otherwise, that the appellants might be foreclosed. The appellants put in an answer to this bill, but it does not appear that they thereby set up, or insisted upon their title under the settlement.

On the 9th of July 1697, the cause was heard at the Rolls, when the Court decreed, that an account should be taken of what remained due upon the mortgage; and that the mortgaged premises should stand charged with what should be so found due; and upon payment thereof the same were to be re-conveyed to the defendants Sir Edward Baesh and his wife; but, on default of payment, they were to stand foreclosed of their equity of redemption.

From this decree the present appeal was brought; and, on behalf of the appellants, it was insisted (P. Crawford), that as to the estate of Battles Hall, the appellant Dame Ann's title thereto was that of a purchaser for a valuable consideration, paramount the mortgage, which she was neither privy to, nor had any part of the money lent thereon; and was not therefore in any manner bound by it; and that the other estate comprised in the mortgage, which the appellants admitted to be subject to it, was a sufficient fund for raising the money due thereon.

On the other side it was said (W. Banastre), that the respondents were absolute strangers to this old settlement; that the appellants never made any mention of it in their answer in Chancery; nor was it proved in the cause, or even insisted on at the hearing; and that therefore no regard could be had, or any use made of it now; it being a known and constant rule, that nothing can be read in evidence on the hearing of an appeal, which was not read or insisted on in the court below.

[548] After hearing counsel on this appeal, it was ordered and adjudged, that the decretal order complained of should be rectified, by adding thereto the words following, viz. "That the mortgaged premises shall stand charged with what shall be found due thereupon, against any title the defendants Baesh and his wife claim, by, from, or under the said William Waad." (Jour. vol. 17, p. 465.)

The respondent and the said William Worts deceased, being two of the three Esquire beadles of the university of Cambridge, and severally possessed of wine