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that the Master made his report 1st July, 1701, and charged appellants with the whole assets of Lord North's estate, amounting to 4752l. 13s. 3d. and (inter alia) certified, that there rested in the hands of Russel (after just allowances) 2075l. 3s. 7d. And that appellants, 26th July, 1701, took exceptions to the report, for that the Master had not allowed them 702l. 10s. which their testator had actually paid to a Mrs. Hatton on a bond, due to her from Lord North; and also for that he had charged appellants with the whole assets of Lord North's estate, though Lady North had, before her intermarriage, paid away 1389l. 11s. 8d. for his debts and funeral, with which Russel's estate ought not to be charged; and that these exceptions were argued before the Lord Keeper, 17th December, 1701, when it was ordered, that as to the 702l. 10s. it should be re-referred to the Master, to examine when that money wae paid by Russel, viz. whether before or after Russel had appeared, or was served with process, to appear to the respondent's original bill; and the other exception, as to the 1389l. 11s. 8d. was over-ruled: And that the Master, 10th February, 1701, made his further report, that it appeared by the six clerk's certificate, that Russel and the Lady North appeared to respondent's bill in Michaelmas term, 1692, and that the 702l. 10s. was paid to Mrs. Hatton, 25th March, 1693; and that the matter on the Master's further report was heard, 2d June, 1702, and the Lord Keeper over-ruled the exception touching the 702l. 10s. and ordered that money to be paid by appellants to respondents, notwithstanding their testator had actually paid it before to Mrs. Hatton in discharge of her bond; and that though appellants had procured the other exception, as to the 1389l. 11s. 8d. to be re-argued, they could not obtain any relief therein; from both these decrees or orders of 17th December and 2d June, therefore the appeal was brought, and appellants insisted both ought to be reversed, because, as to the first point, the [231] 702l. 10s. due to Mrs. Hatton by bond, was a debt of equal nature at law with respondents demands, and if both had been sued for at law Lord North's executor might by law, have preferred which he pleased; and that this judgment in equity, would in this instance change the law, and create infinite mischief to executors and creditors; for then, if any creditor having a demand in equity, though never so uncertain as this was, should file his bill against an executor, the executor after service of a subpoena, could pay no debts, though never so legal or well ascertained, till such suit in equity determined, though it should be ten years depending, as this had been, and in the mean time may be sued at law by other creditors, and could not plead the suit in equity in barr of such suits at law; and that it might so happen, that an executor might, pending such equity suit, waste the assets, and all the creditors be defrauded: And appellants submitted, that the presidents (M. 1697. Joseph v. Mott. Prec. Ch. 79) which governed this case in Chancery were of very late date, and had not been affirmed by any judgment of the Lords: And that as to the second point, the decree was, that appellants testator should answer only what came to his hands after his intermarriage with the Lady North, and his estate ought not to be charged with what she had paid away before her marriage with him; and that it appeared by full proofs in the cause, that the 1389l. 11s. 8d. had been paid away by her out of the assets before the marriage, and therefore could not possibly have come to his hands after the marriage. (Samuel Dodd.)

In the circumstances of the case, respondents altogether agreed with appellants, and submitted to the Lords, that there were but two questions; the first, whether the voluntary payment to Mrs. Hatton, a bond creditor, without compulsion of law, or any proceedings to enforce it, made after a bill exhibited and an appearance thereto, was a good payment against the respondent, who was a creditor both by bond and covenant? And respondents contended, that the standing rules of equity, had on all occasions adjudged such payments void and that there were many precedents to the same point; and as to the second point, that Lady North had, before her marriage with Russel, paid away several sums which were not allowed to his executors, respondents insisted, that these payments neither could or ought to have been allowed, for that Russel's estate [232] was not charged with any thing received by the lady before her marriage; and showed that respondents were confined by that decree, to take the account from Russel's marriage only, and that nothing received or paid before could be brought into the account; and complained that respondent had been a dear purchaser of this annuity, and had travelled in this suit