Page:The English Reports v1 1900.pdf/289

been obtained by surprise, but that it was void by the statutes of frauds; which respondent insisted it was not, for that it had been recited in writing, and owned by the appellant under his hand, [252] and by several letters, and executed in part by payment of the 810l. and that the old cancelled articles and conveyances insisted on by appellant, to cover the freehold lands, were in his custody before he made the agreement, and never set up till after the bill filed; and that the grounds of the present appeal, were appellant's own ignorance, and his solicitor's idleness, which could be no reasons for the reversal of a decree before the Lords: And respondent insisted that appellant ought not to be suffered to take advantage of his own wilful defaults, and vexatious delays, nor be let in to make use of proofs before the Lords, which he neglected to produce in the Court below; and that it would tend to introduce a new and inconvenient practice if a party were suffered to decline the judgment of the Court below as to the merits of the cause, and bring the matter originally to be heard in the house of Lords. (Sim. Harcourt. W. Cowper.)

Die Veneris, 18 Decembris, 1702. After hearing council on this appeal, complaining that the decree was made ex parte, and without hearing appellant, and was signed and enrolled, and appellant precluded in Chancery, and praying that the decree might be reversed, or the cause sent back to be re-heard in Chancery, it was adjudged by the Lords that the appeal should be dismissed, and the decree and orders complained of affirmed. Lords Journ. vol. xvii. p. 194. (Prec. Ch. 212.)

The appellant stated the question in this case to be, whether an executor ought to pay judgment debts recovered against him on bonds, in priority to debts of simple contract, or debts by bond not reduced to judgment? And shewed, that Richard Kent, deceased, devised his real and personal estate to his executors for payment of his debts and legacies; and that John, Earl of Kildare, and his trustees, exhibited their bill in Chancery against the executors to be paid a debt of 8000l. alleged to be due upon a note under testator's hand, whereby he agreed to charge certain lands with the payment of that money, but which he had not charged therewith: And that the cause was heard 28th June, 1692, and the Court declared that the lands were well charged in equity by that note or agreement, and decreed accordingly, that all testator's freehold and copyhold estates specified in the note, should be forthwith sold to the best purchaser; and if the purchase money should not be sufficient to pay the 8000l. and interest, then the remainder to be paid out of the profits of the same lands from the time of exhibiting the Earl's bill, to the time of such sale; and that respondents, the executors, should account for the profits accordingly; and if these also were insufficient, then that the testator's personal estate should be applied to make up the deficiency, and that the executors should accordingly account for the personal estate: And it was further ordered, that all testator's creditors should come in and prove their debts, and receive satisfaction out of the personal, or produce of the real estate, according to the course of law in payment of debts by executors or administrators; and that appellants were bond creditors, and had recovered judgments thereon [254] against respondents, the executors; and in November, 1695, exhibited their bill against the Earl, his trustees, and the executors, complaining that they were real creditors of Richard Kent, and no parties to the Earl's cause; and that that cause had been carried on by collusion with the executors, who never disclosed, but purposely concealed appellant's debts, which were of an higher nature than the Earl's debt; and that appellants