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affidavit of her having delivered the testator's will to the appellant, in manner aforesaid, and thereupon applied by petition to the Master of the Rolls, to have the same restored, in order that she might be thereby enabled to put in her answer, and defend the suit; and his honour, after hearing counsel on both sides, was pleased to order, that the will should be delivered to one of the examiners of the court, and that the mother should not be obliged to answer till that was done. This order, however, was not obeyed; but the appellant, so far acquiesced under it, that he never called for his mother's answer, nor were any further proceedings ever had in that suit.

On the 10th of April 1704, Mrs. Hampden the mother died; having first made her will, whereby, after declaring and affirming, that she delivered her husband's will to the appellant, in order to be proved, and not otherwise; she gave him a legacy of £200 upon condition that he did, either in her life-time, or within one month after her decease, deliver the said will to her son Richard, the respondent; and, after giving a legacy of £200 to the respondent, and a like legacy to her son Henry, and her daughters Faith and Ann; the testatrix gave all the rest of her real and personal estate for the payment of her debts, funeral expences, and legacies; and of her said will, made the respondent sole executor and residuary legatee.

Soon after the mother's death the respondent proved her will, and delivered a copy thereof to the appellant, requesting him to deliver up their father's will; but he refusing so to do, and the respondent being thereby unable to satisfy and discharge the incumbrances affecting the estate, he, in Easter term 1704, exhibited his bill in Chancery against the appellant [552] and others, praying a discovery of the father's will, and that the same might be delivered up and established; that both the wills might be proved per testes, and that the plaintiff might be at liberty to redeem the mortgages.

To this bill, the appellant put in an answer, and thereby positively denied that he ever had his father's will, or knew thereof: he also exhibited a cross bill, as the heir at law and administrator of his father, for an account of his real and personal estate.

Pending these proceedings in equity, a suit was instituted in the Ecclesiastical Court; where, after an examination of witnesses, and a full hearing, sentence was pronounced, revoking the letters of administration which had been granted to the appellant, and establishing the father's will.

On the 12th of December 1707, both causes were heard at the Rolls, when his honour declared he was fully satisfied, that Edmund Hampden the father did make a will, and that the same, after his death, came to the hands of Elizabeth the mother, and was by her delivered to the defendant Edmund, in order to be proved; and, in regard the said defendant, to the intent that the contents thereof might not be known, had suppressed the same; it ought to be most strongly presumed against him, and to be taken as set forth in the plaintiff's bill; because, if the will were otherwise, it was in the power of the defendant Edmund to make it so appear, by producing the same, if he thought fit; it was therefore decreed, that the plaintiff should be at liberty to redeem the said mortgages, and that he and his heirs should hold and enjoy the estate, against the said defendant Edmund and his heirs; unless the said defendant should produce to the court his said father's will, within six months then next following; and is he so did, then the parties were at liberty to resort back to the court, touching the same.

From this decree, the defendant appealed to the Lord Chancellor Cowper; and the cause being beard on the 8th of December 1708, his Lordship was pleased to affirm the former decree.

The defendant therefore brought the present appeal; insisting (S. Dodd, F. Mulso), that the decree at the Rolls was made upon the affidavit and order made in the first clause, brought by the appellant against his mother; neither of which ought to have been read, to gain a title to Elizabeth, the mother, or to the respondent, as claiming under her; and yet, without this affidavit, there was not sufficient evidence to shew, that the appellant ever had the will, nor was there any witness produced, who ever saw it after the father's death. That the rest of the evidence consisted of some loose words and letters, the sentence in the Ecclesiastical Court, and a deposition of one Mr. Wells; but which deposition ought not to have been read, as it manifestly appeared, that Wells was an interested witness, he having money [553] owing to him from Elizabeth; and she having charged the estate with the payment of her debts, he had