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Lady Irwin's inrolling the decree; he therefore submitted, and in the course of about five years, he paid Lady Irwin upwards of £500 in part performance of it.

But after this acquiescence, and after Lady Irwin had married Mr. Banbury, they thought proper to appeal (R. Raymond, S. Cowper), from this decree; because it directed, that the house, and so much of the premises as were let to Milburne, should be accounted for, during his lease, at £55 per ann. whereas he paid £55 per ann. for one part of what was let to him, and £5 per ann. for other part thereof, as appeared by the proofs in the cause; and therefore what was so let to him, ought to be accounted for, during the time of his lease at £60 per ann. That after Milburne's lease, the appellant Dame Elizabeth was decreed to have, during her life, only the rent of the premises, as let by the respondent Alderman Bolton; whereas, he purchasing the reversion from the two daughters, and afterwards taking in the mortgage, with full notice of the appellant Dame Elizabeth's estate for life, and so becoming voluntarily concerned, he ought not to put her in a worse condition, than she would have been had he not been so concerned: and therefore the appellant Dame Elizabeth ought not be concluded for her life-interest, at an under rent reserved on fines taken by the Alderman; but ought to [438] have possession of the house and garden particularly devised to her, with all the improvements thereon, or an equivalent for the same, according to the improved rents thereof, and likewise for the materials of the old houses. That as to the third part of the rest of the estate, devised to the appellant Dame Elizabeth, she was decreed only to the third part of the rents at present received, though great fines had been taken on making the leases, and the reversion thereby unduly eased and improved at her charge. That these fines, which were chiefly taken out of her estate for life, were decreed to be applied in satisfaction of the mortgage, and no recompence was decreed to her, though she ought only to bear a proportion of that mortgage; so that the appellants were unequally charged, in case of the reversion, for when the mortgage was paid, Dame Elizabeth, was, during the remainder of her life, to have only the rents reserved, where such fines had been taken. That there was no direction given by the decree, that the appellant Dame Elizabeth should have interest for the money coming to her from the respondent Alderman Bolton, whilst the same lay in his hands, nor was the consideration of interest reserved; neither were the respondents decreed to produce before the Master upon oath, all deeds, writings, and accounts, in their custody or power, which ought to have been done, and without which the account could not be fairly taken and adjusted. That the respondents ought also to have been decreed to be examined on interrogatories, to discover what was bonâ fide paid on the mortgage, and likewise for clearing the accounts and other matters in question, as there should be occasion; and the rather, because the mortgagees were in receipt of the rents and profits of the premises, for about ten years before the assignment to the respondent Alderman Bolton, whereby the mortgage was very near, if not fully satisfied; and the appellant Dame Elizabeth ought to have been decreed her costs. That the personal estate of Dr. Loftus ought to have been in the first place applied towards satisfaction of the mortgage; and what the appellant Dame Elizabeth had paid towards the discharge thereof, ought to be reimbursed her out of such personal estate, or out of the two-thirds belonging to the coheirs. And therefore it was hoped, that in these several particulars, the decree would be altered and amended.

To this it was answered (T. Lutwyche, S. Mead) on the other side, that it did not appear by any proof in the cause, that Milburne paid £55 per ann. for one part, and £5 for another; but it manifestly appeared by the lease, that he only paid £55 per ann. That it was apprehended, the appellant Lady Irwin could have no more than the rent of the house, during Milburne's lease; and if the respondent Alderman Bolton, who was assignee of the mortgage, had not managed in the manner before-mentioned, in letting all the mortgaged premises to improving tenants for long terms of years, the same would not have yielded more than the interest of the mortgage, and then Lady Irwin could not thereout have received any thing. That the Alderman took no fines out of the premises demised to Milburne, but what fines he did take, were out of the rest of the real [439] estate, in which Lady Irwin was only interested as to one-third; and therefore her interest could in no respect be thereby lessened, in regard she was to pay one-fifth part of the