Page:The English Reports v1 1900.pdf/821

The appellants put in their answer to the same effect with the cross bill filed ten years before; and particularly insisted, that John Norris concealed his conveyance from the Neves; that his taking it was a breach of trust, and that he ought to be deemed a trustee for Peter and his heirs.—They said, they had caused all the deeds and writings in their custody or power to be inspected by their solicitor; but could not thereby distinguish the freehold and copyhold lands. They admitted the agreement by the clerks in court; but said, it was not intended to bind, nor could bind the interest of any of the parties; and hoped they should not be concluded thereby, or be obliged to account for the rents and profits of the estate; but that the respondent's great-grandfather should be deemed a trustee for them, and the respondent be obliged to account with them for the rents and profits.

The other defendants having put in their answers, a commission issued for the examination of witnesses, in which the appellants joined; but did not examine any witnesses, though several were examined for the infant respondent. On whose behalf an order was made, that he should be at liberty, at the hearing of the cause, to read the bill, answers and depositions in the cause, Neve against Neve in 1679.

On the 17th of July 1742, the cause was heard before the Lord Chancellor Hardwicke when it was referred to a Master to take an account of the rents and profits of the freehold estates, to which the infant respondent was then entitled, which had accrued since the death of Peter Neve; and that what should be found to have accrued due in the life of the infant respondent's father, should be paid to his executors; and what was due since his death, should be paid into the Bank for the benefit of the infant and that the appellants Isabella and Edward Nove should deliver possession of Shackle's Farm to the infant respondent's guardian for his use; and that the rest of the freehold estate should be distinguished from the copyhold and leasehold lands belonging [80] to any of the appellants; and a commission was to issue, to set them out by metes and bounds, and that all deeds, etc. in the hands of any of the parties, should be produced upon oath before the commissioners; and such as should belong to the freehold, should be delivered to the infant respondent's guardian, for his benefit.

A commission accordingly issued, which was soon after executed by the commissioners named by all parties; and the estates were distinguished and set out by metes and bounds.

In February following, the infant respondent preferred his petition, that the cause might be set down for further directions on the return of the commission, and as to other matters reserved at the hearing; but before the same could come on, the appellants preferred their petition, setting forth, that since the decree, they discovered that they were heirs at law to the blacksmith, who was dead without issue, which they had never heard of before; and therefore they did not, nor could claim as his heirs and that the appellant Matthew Graves had married the appellant Ann after the decree; and praying leave to exhibit their supplemental bill, in the nature of a bill of review, and to apply for a rehearing, and that all proceedings upon the decree might be stayed.

On the 2d of June 1743, this petition came on to be heard; and to prove that the appellants were heirs to the blacksmith, they made an affidavit which was read, whereby they swore positively to their own and the blacksmith's pedigree, so far back as the year 1601. But it being impossible the particulars could fall within their knowledge, the court ordered the petition to stand over, till the day of petitions after Michaelmas term; and that both sides should file their affidavits by à certain time in the order limited.

Several affidavits were accordingly filed for the appellants, and several in answer to them for the infant respondent; by which it appeared, not only that the appellants were not heirs to the blacksmith, but that the infant respondent probably was, and certainly was much nearer of kin, both to the blacksmith and old Oliver Neve, than the appellants, or those under whom they claimed.

On the 22d of October following, the petition came on again to be heard; but the appellants did not think proper to attempt to support it, and therefore suffered it to be dismissed with costs.

However, in a few days afterwards, the appellants preferred another petition wherein they set forth most of the allegations of their former petition and their bill