Page:The English Reports v1 1900.pdf/638

respondents, and thereby prayed, that the Earl might be compelled personally, and out of his own property, to pay her the arrears of her said annuity of £200 left her by her father's will, from his death, with interest for the same from the respective times the payments became due; and likewise all the arrears of the additional annuity of £200 during her life, from the time that Lady Herbert was appointed guardian, with interest for the same as aforesaid; and that the said two annuities might be established, and that the Earl might personally, and out of his own property, pay the appellant the same during her life, in pursuance of his Lordship's agreement and undertaking; the appellant having performed her part of such agreement, or at least was ready so to have done when properly called upon, and when she was not hindered by the Earl from so doing; or that all the defendants, or some of them, might pay the appellant all the arrears of the said annuity left her by her father, with interest, and that the growing payments thereof might be established and secured; and in case the arrears thereof, with interest, should not be paid by a limited time, that then so much of the real estate of the appellant's father might be sold, as should be sufficient to raise money to satisfy the same; and that all proper parties might join in such sale.

To this bill the Earl and Countess of Powis put in a demurrer and answer, and as to the compromise in the Prerogative Court and Court of Delegates, between the Marquis of Powis and Baker, touching the validity of the will and codicils of the Marquis the father; and as to the declaration of trust made by the Earl of the legacy of £1000 given to Baker; and as to what was done by Baker, Pusey, and Goostrey, to enable the Earl to obtain administration to the Marquis the father; the Earl and Countess demurred, for that a discovery of the matters aforesaid did not tend to the appellant's relief, but only to question the validity of the administration, which was only cognizable in the Ecclesiastical Court: and by their answer, they admitted the will of the appellant's father, and the devise to the appellant of £200 a-year for her life; but denied that her father had power to charge his estates with the said annuity, excep the estate in the county of Salop, and the Earl denied that he ever promised to pay the said annuity: he admitted that he was in possession of the appellant's father's real estate, but insisted that the appellant was indebted to the Marquis the son in £23,851 17s. and that her annuity should not be paid till she had indemnified the Marquis's estates from that debt, and offered to do any act the Court of Chancery should judge necessary to satisfy the said annuity, out of such part of the real estates of the appellant's father as he had power to [362] charge therewith, in case there should be a sufficient surplus, after payment of his debts, to pay the said annuity, or if not, in proportion with the other annuitants and legatees.

The demurrer having been argued and over-ruled, the Earl by a further answer admitted, that in the latter end of the year 1749, he applied by Mr. Morris to Mr. Pritchard, the appellant's agent in London, the appellant being then in France, for the approbation of the appellant and Lady Arundell to the appointment of Lady Herbert to be guardian to the Countess, then Miss Herbert, being advised, that procuring their consent would occasion such appointment; but denied that he gave Morris any authority to say, that the same would so highly oblige him, as to induce him to pay the appellant's annuity; and denied the whole of the applications and promises, by the bill charged to have been made by himself, on appointing such guardian: he admitted that he was in possession of the appellant's father's real estates, of the annual value of £10,008 8s. 10d. but refused to discover what sum of money had been raised by sale of the real estates.

The Earl and Countess of Powis by another answer admitted, that the appellant had not received any part of her annuity; that they had refused to pay the same, or to come to any account with the appellant touching the monies received by sale of the real estates, or to discover how the same had been applied; insisting, that the appellant was not intitled to satisfaction of her annuity out of the money received by such sale. The Earl admitted, he could not set forth how he was related to the Marquis of Powis the son, but said there was a friendship and correspondence between them; and that at his request the Earl had done him at different times several services, but admitted he had no personal acquaintance with him. The Earl also admitted, that he had not paid the annuities of £400 or any arrears thereof; and in general denied the case charged by the appellant's bill.