Page:The English Reports v1 1900.pdf/363

several conveyances from the Duke to his trustees, for payment of his debts; and the nature of the several conveyances, and securities made by the Duke, and what had been done thereon: And that the master had made two reports, one dated July 3d, 1708, and the other June 10th, 1709, viz. that there was due October 27th, 1694, to appellant Baker 2069l. 19s. 11d. November 27th, 1694, to appellant Philips 848l. 11s. 4d. May 20th, 1697, to Goodwin and others 5869l. 16s. 6d. February 19th, 1694, to Goodchild 4556l. 16s. 6d. July 5th, 1697, to William Smith, Barnes & al. 3456l. 1s. 7d. July 17th, 1708, to Elizabeth Edwards 226l. 9s. 9d. and 28th October, 1709, the special matter of these reports came to be heard before the late Lord Chancellor, and the several orders for making Cherry and Browne's interest to carry interest, being stated in the [407] report of July 3d, 1708, and that the interest of such interest amounted to above 12,500l. and that the said decrees were signed and inrolled, his lordship declared he could not give appellants any relief, as to this allowance of interest upon interest: And appellants insisted the orders for interest upon interest should not affect them, for that appellants debts were contracted in confidence and credit of the trust the Duke had created for payment of his debts, and of the letters sent by him to Major Wildman, directing his servants and tradesmen to be paid out of such trust, and that these letters were antecedent to any money lent by Cherry or Browne, and that the debts of some of the appellants were contracted before Cherry and Browne's debts, and all in confidence of the known trust created by the Duke for their payment: And appellants shewed that appellants Baker and Philips had obtained a decree 25th July, 1693, for their debts, founded upon the Duke's orders of November 19th, 1675, and another order without a date to Major Wildman, and on the Duke's deed-poll of August 24th, 1676. And that appellant Goodchild's father, upon the same orders, July 9th, 1694, obtained a decree for his debt: And that by the payment of interest upon interest, appellants debts, though in their nature favoured in law and equity, being some for wages and others for the Duke's necessaries for his family and table, would be intirely unpaid, and appellants and many others of the Duke's servants and creditors, and their families, ruined; and if such interest upon interest should be allowed, Cherry and Browne would yet have their debts and their principal and interest for about twenty-six years at six per cent. per annum, and about 1700l. for their costs. Wherefore appellants appealed from such part of the decrees, orders, reports, and proceedings mentioned in the report of July 3d, 1708, by which more than 12,500l. interest upon interest was allowed to Cherry and Browne, or their representatives, and from the order made October 28th, 1709. (G. Paunceforte. Spencer Cowper.)

The respondents, in affirmance of the decree, stated, that George late Duke of Buckingham, by indenture, dated 21st December, 1680, mortgaged his whole estate, then in the hands of his trustees, to secure 5000l. then lent by Cherry and Browne, and interest, and such further sums as they should advance: And by another indenture, dated [408] 16th May, 1681, charged his whole estate with the 5000l. as also the further sum of 25,000l. lent to him by Cherry and Browne, and interest, and directed his trustees, by sale or otherwise, to raise and pay the same, and such further sums as they should advance; and that in June, 1682, Cherry and Browne exhibited their bill in Chancery against the Duke and his trustees, to have their debts raised and paid out of the Duke's estate, and, 6th March, 1682, obtained a decree accordingly; and upon the re-hearing of the cause, 23d May, 1683, it was decreed that the master should compute the debt and costs, and that the trustees make sale of sufficient part of the estate to satisfy them; and that Sir John Hoskins, 13th July, 1685, made two reports, and certified due to Cherry 10,272l. 3s. 3d. and to Browne 43,433l. 13s. 7d. for principal and interest to the 16th of July, then next following: And that Browne being a scriviner, great part of the money reported due to him was the money of his clients, entrusted to him to dispose of upon good securities: And that Browne and Cherry not being able to receive the money so reported due, upon application to the Court, 13th November, 1684, obtained an order that the master should compute interest for the sums from the time they were reported due for twelve months, and such interest to be made a principal sum, and to carry interest from that time; and 5th February, 1684, on hearing council on both sides, the Court declared the plaintiffs ought to have