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The Earl having afterwards paid off this mortgage, procured the term to be assigned by deed, dated the 11th of February 1687, to Sir John Foach and the respondent Sir Philip Meadows, in trust for the said Earl, his executors, administrators, or assigns; but the Countess did not join in, or was privy to this assignment.

On the 24th of December 1688, the Countess died, and the Earl continued in possession of the estate till his death; applying part of the profits towards the maintenance of the appellant, who was the reversioner, and the residue towards satisfying the debt secured by the said mortgage.

The Earl having six younger children by his second wife, to be provided for out of his personal estate, of which he considered this mortgage-money to be part, made his will on the 11th of April 1698, and thereby devised the said mortgage, and all other his personal estate, to the respondent Dr. Gery, his executor, in trust for his said six younger children.

In 1701 the Earl died, and in Michaelmas term in that year, the appellant exhibited his bill in the Court of Chancery against the respondents, praying an account of the rents and profits of the estate from the death of his mother; and that the defendant Sir Philip Meadows, as the surviving trustee of the 1000 years term, might surrender, or assign the same, to attend the inheritance, free from incumbrances.

The cause being at issue, was heard before the Lord Keeper Wright, on the 12th of May 1702; when his Lordship decreed an account to be taken of what rents and profits had been received by the late Earl, out of the mortgaged premises, since the death of the Countess Elizabeth; and that the same, after a reasonable allowance to be thereout made for the plaintiff's maintenance and education, and other just allowances, should be applied towards the discharge of the said mortgage; and on payment of what should appear to be remaining due thereon, to the defendant Dr. Gery, in trust for the defendants the infants; the mortgage was to be assigned to the plaintiff, or as he should appoint.

From this decree the plaintiff appealed; insisting (W. Cowper), that he was thereby, in effect, decreed to pay the mortgage debt, which was wholly a debt of the late Earl, created to serve his particular occasions; and never was in any shape the debt of the late Countess, nor did any part of the money come to her use; besides, the Earl covenanted in the mortgage deed to pay and satisfy the mortgage-money and interest, and this covenant being in fact per-[3]-formed the term ought not any longer to have been kept on foot, unless to attend and protect the inheritance, but not to charge it. That the appellant's mother being, at the time of making this mortgage, tenant for life, with remaindor to the appellant in tail, and the premises being her own inheritance, the same ought not to be charged further, or otherwise than she agreed or consented; and it could not be imagined, that she agreed to charge her land any otherwise, than to stand as a security for the money which her husband had occasion for, and was thereby enabled to borrow, and to be exonerated when he, the principal debtor, should pay off the debt; but she never meant to make any absolute gift of so much money to her husband, or that her estate should stand mortgaged to him, or any in trust for him, for that or any other sum. That it appeared by proof in the cause, that the Earl, in order to gain the Countess's consent to the mortgage, had promised that he would pay off the money, and discharge the land; but if the Earl had made no such promise, yet he ought not in conscience to be deemed a mortgagee or incumbrancer upon the estate, for having discharged his own debt, which he alone was liable to pay, and to be sued for by virtue of his covenant; and it was not agreeable either to reason or experience, that a principal debtor, merely by paying the debt he owes, should become a creditor, and charge his own surety with the payment of the debt, by any means or contrivance whatever.

On the other side it was contended (T. Vernon), that the late Earl was no way compellable to discharge the land of his debt; nor did the Countess, when she agreed to mortgage the premises for raising the £4500 desire or insist on any covenant or agreement for that purpose; but, on the contrary, by the assignment of the mortgage in January 1683, it was expressly agreed, that on payment of the £4500 the term should be assigned to the Earl and Countess, or as they, or either of them, should direct. That the Earl was so far from intending to exonerate the land, by his paying off the mortgage-money, that he not only took care to have the mortgage assigned and kept on foot; but also, considering himself as a creditor for the money so advanced,