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decree, or letting him know what it was, though they might have served it when they personally served him with a subpœna, 2nd April, 1705, at his dwelling house in Thursford in Norfolk, and that appellant was not yet in contempt under the decree, and therefore the [358] sequestration was unwarrantably obtained; and the rather, because the money was decreed to be paid 3rd April, 1705, the very next day after the subpœna served; which decree and proceedings therefore appellant insisted ought to be reversed, because appellant had not (as by law, and the course of equity, he insisted he ought to have had) liberty to examine his witnesses, and make his defence upon the usual affidavits; and that appellant's defence would have been sufficient; and because respondent Jane had divested appellant of the possession of the estate, out of which the legacy should have been paid, and thereby made herself an executor, and her own carver, and got more than her legacy amounted to: And further, because by the decree appellant, an executor, was to pay interest for this legacy, from three months after the date of the will, though there was no proof to ground it: And finally, because it did not appear by the proofs taken, nor by respondents answer, neither was it true that appellant had any of the said estates after the 7th of March, 1699. (Isaac Hawkins, Fran. Hollinshead.)

The respondents on the other hand shewed, that respondent Jane was one of the daughters of Elizabeth Ashby, deceased, for whom appellant had done some business as her attorney, and, lodging in her house, had frequent opportunity of conversing with her, and insinuated himself into her good esteem, and prevailed on her to make her will, dated 28th January, 1699, and himself executor, in trust for her five younger children, William, Fletcher, Champion, John and Susan, who were all infants: And that testatrix by this will gave respondent Jane, then a widow, by the name of Jane Patrick, a legacy of 100l. in money, and some household goods, and, after other particular legacies, gave the residue of her estate to her five younger children equally, and made appellant executor in trust for them, and gave him only a legacy of 10l. but that appellant inserted a clause in the will, that in case any of the children gave him any disturbance in the executorship, or called him to an account for what he did in relation thereto, such children should forfeit their legacies: And that testatrix had been long sick of a languishing distemper, and appellant being daily with her, prevailed upon her to turn all her estate, amounting to near 5000l. into goldsmiths bills, bank bills, and ready money, that he might the better carry it off as soon as she was dead; And that [359] she died 20th February, 1699, and appellant next morning sent for a goldsmith and opened her scrutore, and took from thence near 5000l. in bank bills, goldsmiths bills, and money, and there being 800 Guineas in specie, he took out 100 of them upon pretence to defray the funeral charges, but the rest of them he paid to the goldsmith, in the presence of the children, for whom he was trustee, and then appellant would have turned the house and household goods into money; hut those being the estate of Champion Ashby, the husband of Elizabeth, Thomas Ashby, the eldest son, took out administration de bonis non, and possessed himself thereof, and took an inventory of all the goods, as well those in appellant's chamber as in the other rooms; and when appellant found himself thus disappointed, he went away with all the ready money, goldsmiths bills, &c. and left the children, for whom he was trustee, to the care of their friends; and that respondents finding appellant had so abandoned the children, and was spending the estate in an extravagant manner, brought their bill in Chancery for their legacy; and appellant, in his answer, made this defence: That after he had possessed himself of Mrs. Ashby's estate under her will, Thomas, the eldest son, under bis administration de bonis non, to his father, entered upon him and turned him out of the house, and divested him of all Mrs. Ashby's estate, which he had so possessed himself of by virtue of her will; but never attempted to prove that fictitious defence; but when the cause came to be heard, moved to put it off, and for time to examine, pretending his own clerk in Chancery had betrayed him; and that the cause was regularly brought to hearing, and the Lord Keeper Wright, in the presence of council on both sides (and not ex parte) decreed, as stated by appellant, and that appellant had been several times summoned to attend the master, but did not; and that the master, 31st July, 1704, reported 128l. 10s. due for the