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Henry, or respondent's testator; and had not the decree ordered interest, appellants might have been intitled to costs, having before made proof thereof in the said action by one Mrs. Rodes, which witness was dead before the bringing the bill, and was the occasion of this suit. (Law. Carter.)

The respondents on the other hand stated, that Henry Godfrey had lent appellant Anne, in 1691, 92, 93, and 94, 1200l. and upwards, and, with much solicitations, received part of the money, and that in 1699, Henry Godfrey drew up a just account between him and appellant Anne, stating a balance of 350l. due to him for prin-[356]-cipal and interest; and sent it to her, and she made no objections thereto, but afterwards wrote him a letter that she had received such account, and had not then monies in her hands to pay the same, but had written to her son, the other appellant, who had twice as much of her monies in his hands, and desired testator to send to him for his money; and that testator accordingly sent to appellant Harry, who wrote by his own servant, that if 40 or 50l. would do him any kindness, he would send him the same: And that thereupon testator insisted to have the whole 350l. paid in together: And that Henry Godfrey died in 1700, before he had received any part, and made William, his brother, sole executor, and that appellants had often promised, by letters and otherwise, under their hands, to pay that money; but appellants failing in their promises, said William exhibited his bill, as stated by appellant, and the appellants bad in their answer denied the assignment from appellant Anne to the other appellant, yet that Henry Godfrey had, as her attorney, drawn such assignment, and that respondent had the original draught in his hands; and that the hearing, decree, rehearing, and further hearing and final decree, as stated by appellants, were had, which decree respondent insisted was just, and ought to be affirmed with exemplary costs. (Wm. Banastre.)

Die Mercurii, 12 Martii, 1706. After hearing council upon this appeal, it was adjudged by the Lords that the same should be dismissed; and the decree, orders, and proceedings complained of affirmed; and that appellants pay respondent 10l. for her costs in this appeal. Lords Journ. vol. xviii. 282.

The appellant stated: That Champion Ashby the husband of the testatrix Elizabeth, died intestate, and she administered, and died 20th February, 1699, and left part of her husband's estate unadministered, and appellant, her executor, in possession thereof and of her own estate: And 100l. being given respondent Jane by testatrix, respondents, in Easter term, 1702, filed a bill against appellant, and, by intrigue with appellant's clerk in court, and the late Lord Keeper Wright refusing to give appellant a week's time to examine his witnesses, by surprise, 22d May, 1704, obtained a decree ex parte for this legacy, though respondents and their assistants had gotten the executory estate, where out this legacy should have been paid, and 69l. 18s. 6d. for costs; which were extravagant costs, as respondents had examined but three witnesses; and that respondents had by answer to a cross bill, in effect confessed these facts; and that by that decree it was referred to a master to take an account of the personal estate of the testatrix come to appellant's bands, and to compute what was due for the legacy, and interest, from the end of three months after the date of the will, and that appellant pay what the master report with costs, so far as assets came to his hands; and appellant complained that the decree took no notice that appellant had been so dispossessed of the estate by the legatee herself, though appellant had insisted thereon by his answer, and that respondents had on this decree, on pretence that appellant had absconded, clandestinely gotten a sequestration, and, 25th March, 1706, sequestered appellant's own lands of inheritance, and his household goods, &c. to the value of 3000l. for this 100l. legacy, without serving the