Page:The English Reports v1 1900.pdf/339

and the articles to be thereby waved, or specifically executed, especially after so long an acquiescence. (W. Cowper. H. Powley.)

Die Sabbati, 18 March, 1703, After hearing council upon this appeal, it was adjudged by the Lords that the same should be dismissed, and the decree of dismission complained of affirmed: And that appellants should pay respondents 40l. further costs in defending this appeal. Lords Journ. vol. xvii. p. 487.

The appellants made this case: That, in 1690, Henry Godfrey, an attorney at law, was a monied man, and acted as attorney and solicitor for appellant Anne, and at several times lent her several sums of money, and left in her hands several other sums, as cash for his conveniency, until he should call for the same, without any memorandum or security, and for discovery and payment of such sums. William Godfrey, as said Henry's executor, in Easter term, 1703, exhibited his bill in Chancery against appellant, alleging that she was indebted to bis testator in 350l. for money lent, and to secure this and other debts had assigned an annuity of 500l. and upwards, and all her personal estate to the appellant Harry, reserving only an annuity of 50l. for herself; and that appellants answered, and appellant Anne acknowledged that she borrowed several aums of the said Henry Godfrey, and that the said Henry Godfrey had left in her bands several other sums, all which she had repaid him in his life time, except 100l. brought into the court of Queen's Bench upon the common rule, on an action brought against her there by said William Godfrey for 1034l. 10s. 4d. before the said bill exhibited. And both appellants averred that appellant Anne never made over her annuity or personal estate to appellant Harry, upon any account whatever: And the appellant Harry averred he never received the profits of the annuity under any trust or assignment whatever: And that 31st May, 1704, that cause was heard before the Master of the Rolls ex parte, who decreed an account of what said Henry Godfrey advanced and lent appellant Anne which was not repaid in his life-time, with interest and costs; and on a re-hearing 7th March, 1704, affirmed the former order, with this alteration; that costs should be reserved till after the account taken, and the said Master was to report any difficulty arising in the accounts specially; [355] but that said William, before any farther proceedings, signed and enrolled that decree, which was not usual; and that the matter, 7th December, 1705, reported 414l. due for principal and interest, without distinguishing what was lent, and what deposited with appellant Anne and ordered the appellant to pay the same. And that William Godfrey died, and respondent Mercy his sole executrix, in May, 1706, brought a bill to revive these proceedings; and the cause was re-heard, on appeal to the Lord Keeper, 29th January, 1706; and respondent insisting that the decree was signed and enrolled, his Lordship would not proceed to re-hear the cause, and the order for re-hearing was discharged, though costs were given respondent by an order made the 21st day of December subsequent to the enrollment; which order and decree appellants insisted ought to be reversed, because the money pretended by respondent to be lent, was only deposited, and not lent; and though lent, it was not lent upon any security to carry interest, nor was any day of payment set for the same, but demandable at pleasure; therefore no interest ought to have been decreed to the respondent's testator for the same; and appellant Harry was decreed to pay the money due by appellant Anne, with interest and costs, jointly with her, though it was not pretended that he was concerned in any of the transactions between Henry Godfrey and appellant Anne, or any way security for the same; and because the cause abated by the death of William Godfrey, and was not regularly revived; for that the same ought to have been revived by Scire facias, and not by bill: And finally because the 100l. paid into Court before the said suit commenced, was the whole principal debt due to testator