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child, after the death of him the said Marquis; he did fully, freely, and absolutely give, grant, and confirm, unto the respondent the sum of £2000 so secured by the said recited bond, to be paid to the respondent out of the personal estate, goods, and chattels of him the said Marquis; to have and to hold the aforesaid sum of £2000 unto the respondent, after the death of the said Marquis from thenceforth for ever, without any manner of claim, challenge, or demand, of or by any other person or persons whatsoever, but to [251] the several uses, intents, and purposes after mentioned; viz. that the said sum of £2000 should be placed and laid out on an annuity or yearly income, to and for the only proper use and benefit of the respondent, and the child begot by him the said Marquis on her body as aforesaid; and to be paid to them during the life of the respondent and the said child, or the longest liver of them.

On the 15th of November 1718, the respondent was brought to bed of a female child by the Marquis; but which died on the 17th of December following.

On the 14th of January 1720, the Marquis died, having made his will, and thereby appointed the appellant the Marchioness his executrix; and directed, that she should pay out of his personal estate, all his lawful executory and personal debts, in which Lord Johnston his eldest son was not bound, and which were contracted since the 1st of April 1690.

The appellant the Marchioness, soon after the death of the Marquis, proved the will in the Prerogative Court of Canterbury, and possessed herself of his personal estate, to the amount of about £6000.

The respondent soon after the death of the Marquis, made her application to be paid the money due to her, but the appellant refusing to pay the same, an action was brought upon the bond; whereupon in Michaelmas term 1721, the appellant exhibited her bill in Chancery against the respondent, praying a discovery of the said bond and deed, and in whose presence, upon what inducements, and for what considerations the same were executed; and an injunction to stay the respondent's proceedings at law on the bond.

To this bill the respondent put in her, answer, setting forth the matters aforesaid, and the said bond and deed, and that the same were given for the considerations aforesaid, without any fraud or circumvention; that the Marquis himself procured such bond and deed to be drawn, and that the respondent knew not who prepared the same.

The respondent proceeded to trial in her action; but the appellant the Marchioness having pleaded non est factum, and one of the witnesses being dead, and the other in Scotland, the respondent could not prove the execution of the bond, and was therefore nonsuited.

But in October 1723, she filed her bill in Chancery against the appellants, setting forth the matters aforesaid, and praying a discovery of the late Marquis's assets, and to be thereout paid the £2000 and interest.

The appellants put in their answer to this bill, setting forth the Marquis's will, and an account of his personal estate come to the hands of the appellant the Marchioness, and the payments she had made thereout; and admitted, that upon inspecting the deed and bond, she apprehended the subscription thereto to be like the Marquis's writing.

Issue being joined, several witnesses were examined on both [252] sides; and on the 25th of January 1727, both causes came on to be heard before the Lord Chancellor King; when his Lordship declared he saw no cause to give the plaintiffs in the original cause any relief, and therefore ordered the original bill to be dismissed, with costs to be paid out of assets. And in the cross cause it was ordered and decreed, that it should be referred to the Master to take an account of what was due for principal and interest on the said deed of the 15th of September 1718, from the end of one month after the death of the said late Marquis of Annandale; and also of the assets of the said late Marquis, which had come to the hands of the appellant the Marchioness, or any other person or persons on her behalf; and what the Master should find and certify to be due to the respondent for principal and interest as aforesaid, and for her costs in the cross cause, the appellant the Marchioness was decreed to pay to the respondent out of assets, in a course of administration.