Page:The English Reports v1 1900.pdf/370

several suits in England and Ireland, which by the said William and Mi-[422]-chael Hill removing out of one kingdom into another, and their deaths, became fruitless: And that appellant being reduced to great extremity, was forced, 18th December, 1703, to come to an agreement with the mother and guardian of Trevor Hill, Esq. the heir male of the family, whereby in consideration of 1000l. paid down, and 100l. a year for her life, she released the arrears due to her as executrix to her mother, the principal sum of 1000l. for her portion, and above twelve years interest, due for the same: And that the guardian insisting to have the lands of Glynn included in the release, and appellant conceiving herself barred by the decree against her mother, and never having heard of any debt owing by her father, consented to it for peace sake; but that, in July, 1705, respondent, as administrator of Charity Leigh, and administrator de bonis non of Thomas Leigh, in trust for and on the behalf of other persons only, exhibited his hill in Chancery in Ireland, against appellant, as executrix of her mother, executrix of Moses Hill, setting forth that in 1664, Moses borrowed 100l. from Samuel Winter, and together with said Thomas Leigh and Richard Palfrey, executed a bend of 200l. to pay this 100l. on the 17th December, 1665; and that Leigh in his life, Charity, his widow, after his death, and respondent since her death, paid Winter or his executors this 100l. and all interest due thereon: And that appellant had assets of Moses Hill's, namely the 1000l. and 100l. annuity, and thereout prayed to be paid this debt and interest: And that appellant having answered, the cause was heard 10th May, 1708, and the Court, on the testimony of one witness only (who deposed to his belief only, that appellant would not have got within 400l. on the agreement, if she had not released Glynn) decreed a trial at law for the ascertaining what assets came to appellant either from her father or mother; that a trial was had 8th February, 1708; and the jury, on such evidence, found assets of Moses Hill's came to appellant of the value of 400l. and 17th February, 1708, the cause was heard, and the Court confirmed the verdict, and ordered a master to inquire how much money Thomas and Charity Leigh, and respondent, had severally paid on account of the bond, and how much the whole, with interest from the respective payments, amounted to: And that the master reported only 170l. paid in money; but by computing [423] interest upon interest thereon, made the whole amount to above 500l. and that thereupon the Court ordered appellant to pay the 400l. as assets in her hands, by the first day of the then next Michaelmas term, without costs, if paid without further trouble, otherwise respondent to be at liberty to apply for his costs: And that after appellant had appealed to the Lords, and about five days before respondent could be served with the order to answer the appeal, the Court ex parte ordered costs against her; which decree, orders, and proceedings, appellant insisted were unjust, because no proof was made of any other assets besides the Glynn lands, and that last on the loose belief of a single witness; which appellant insisted was not a sufficient ground to direct such issue, appellant having in her answer sworn that she had no assets of her father's, and that the demands by her released over, and besides the Glynn lands, amounted to above 3000l. And further insisted that, and as to the Glynns, no proof of those lands being assets, ought to have been regarded by the Court; for that by the decree in 1673, the rents and profits of those lands were decreed to William Hill, and ever since received by him and his heirs male: And further shewed, that appellant's mother lived thirteen years after the death of Moses, and was five years wife to the bishop of Cloyne, and no demand was ever made against her on account of this debt: And that from her death, to the time of the agreement in 1703, which was twenty years, no demand was ever against the appellant, nor had appellant any notice thereof: And appellant insisted that at all events the debt ought not to exceed 200l. the penalty of the bond (there being no counterbond to Leigh) especially as it was his own laches that the suit was not commenced sooner. (Sim. Harcourt. Ric. Turner.)

The respondent, in affirmance of that decree, shewed: That Moses Hill and Thomas Leigh, 17th December, 1664, had executed a counter-bond to Palfrey, in the penalty of 400l. which recited that Palfrey, at the request of Moses, and for his proper debt, had that day become bound together with the said Moses and Thomas, unto Winter, in an obligation of 200l. conditioned to pay 100l. and that Moses Hill was tenant for life to a considerable real estate, with remainder for