defendants should join in such sale, and that the £500, when raised, should be invested in the purchase of lands, and the profits thereof enjoyed by the plaintiff for his life, and afterwards by his said daughter Barbara. And it was further ordered, that the plaintiff should have £10 per annum, for the maintenance of his wife, from the time of their intermarriage, till her death; and from the time when, had she lived, she would have attained her age of 21, till the £500 should be raised and paid, towards the interest thereof, to be paid out of the trust-estate decreed to be sold; but if the defendants did not comply with the decree, and gave the plaintiff any farther trouble, then they were to pay him full interest for the £500 from the time that his wife would have attained her age of 21, and full costs of suit.
Soon after this decree, and before any thing was done in pursuance of it, the defendant Bryan Ferrand attained his age of 21; but instead of acquiescing under the decree, he, on the 26th of August 1701, applied to the court, by petition, for leave to put in a new answer to the plaintiff's bill, suggesting, that by an ancient deed, which he had but lately discovered, part of the estate was entailed, and that therefore the testator's will, as to so much, was void; but upon hearing counsel on both sides, the court thought proper to dismiss the petition.
Whereupon, in April 1702, the defendants filed a bill of review, in order to obtain a reversal of the decree, assigning for [4] new matter, the old deed of intail; and for error in the body of the decree, that no care was taken for the payment of the two mortgages.
On the 30th of June 1703, this cause came on to be heard, when, as to the new matter, the court dismissed the bill of review with costs, to be taxed; but without prejudice to the assigned error, in case the plaintiffs should think fit to bring the same on to be argued.
Accordingly, on the 27th of October following, the cause was brought on upon this error, when the court declared, that the matters assigned for error, were such as would have been provided for by the decree in the original cause, if the defendants in that cause had desired the same, as they ought to have done, and that their omitting so to do, was with design to insnare and delay the defendant: and therefore it was decreed, that the estate should be forthwith sold, and the £500 with interest and maintenance, paid to the defendant, as by the former decree was directed; but it was ordered, that the money due to the plaintiff William Watkinson, upon his mortgage, should in the first place, be paid out of the monies arising by the sale; and that the premises should likewise be subject to Lupton's mortgage, and to the annuity payable to the testator's widow, if living. But, in regard the plaintiffs had not complied with the former decree, it was further ordered, that they should pay the defendant interest for the £500 after the rate of £5 per cent. per annum, together with full costs of suit.
From this decree, the plaintiffs appealed, insisting (R. Turner), that, by the above-mentioned deed, part of the Flasby estate was intailed, and could not be charged by the testator's will, but descended, upon bis death, to the appellant Bryan, as heir in tail; and that therefore the decree was erroneous, in directing this part of the estate to be sold. And that the appellant ought not to have been decreed to pay interest and costs, because there was just ground to complain of the defect in the original decree, in not taking care to have the several prior incumbrances first satisfied.
To this it was answered (E. Wiat, J. Browne), that the deed of intail was not fully proved, nor was such a reasonable account given of it at the hearing, as was sufficient for a Court of Justice to found any judgment or decree upon it, in prejudice of an apparent right; neither was the affidavit in support of this new matter, sufficient to satisfy the conscience of the court, but on the contrary, very loose and uncertain, it plainly appearing, that this deed (if any such there was), had been all along in the appellant's custody, ever since the testator's death; and therefore it being their own fault that the same was not sooner produced, such neglect ought not to turn to the respondent's prejudice.
But after bearing counsel on this appeal, it was ordered and adjudged, that the decree complained of should be reversed, so that the estate intailed by the deed, dated 13th of May, 17 Car. I. should not be sold, nor be liable to any payments, as directed by the said decree; and that the fee-simple estate should pay interest [5] from the 29th of January 1699, and that the respondent Richard Jackson should account for and pay back the costs which he had received. (Jour. vol. 17. p. 394.)
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