was not certified by the Master, pursuant to an order of the third day of July, 1683, the Court discharged that order. (1 Vern. 344.)
[3] The cause upon the appeal was heard first July, 1689, and the appeal dismissed, and notwithstanding such report concerning the equivalent or any other of the subsequent proceedings were not, nor could be, in judgment before the Lords on that appeal; yet Popham insisted, that the Petitioners were concluded from controverting the supposed equivalent, and from examining into the particulars thereof; alledging that such report was made before the cause was heard upon the appeal, whereas the Petitioners contended that that report could never be in judgment before the Lords on the hearing of such appeal, the same being made thirteen months after the appeal. (Journ. xiv. 261.)
Bampfield, the only surviving trustee and executor of Rogers, on the 18th July, 1693, filed a bill in the Court of Chancery, to review and reverse the proceedings had in that Court, subsequent to the appeal, and assigned divers errors therein; and Popham, on the 29th July, 1693, obtained an order to dismiss the bill of review with exemplary costs, unless cause in Michaelmas term following, suggesting that the matters assigned for errors had been heard, and in judgment before, and settled by the Lords: and 27th October, 1693, on Bampfield's shewing cause against that order, it fully appeared to the Court of Chancery, that the errors so assigned, never were, nor could be, in judgment before the Lords, these errors not having been complained of in the appeal, nor insisted on in the answer thereto: yet,
In December (Journ. xv. 328. 331. 332), 1693, Popham petitioned the Lords suggesting that the Court of Chancery had proceeded to examine into and reverse a decree settled by the Lords, and would thereby draw their Lordships' order into examination in Chancery, and a committee was appointed thereupon to consider of the cause and proceedings therein, and report what was fit to be done: and on 3d January, 1693, the committee reported, That there not appearing to have been any proceedings in the Court of Chancery on the matters determined by the Lords, nothing needed to be done therein; to which report the House agreed. After which Popham pleaded these proceedings, and Bampfield replied; and before any further proceedings, Bampfield died; having previously conveyed his estate to Petitioners the trustees, first, for payment of his debts and legacies, and afterwards for petitioner Sir C. Warwick Bampfield, and his issue male; remain-[4]-der to petitioner John Bampfield, and his issue male, and by his will confirmed such settlement.
In Easter term, 1695, petitioners exhibited a bill of revivor, in nature of a bill of review, to review and revive these proceedings. This bill Popham answered, and examined witnesses to prove that the report and matters subsequent to the appeal, were read and in judgment before, and settled by the Lords; but petitioners insisted, that though it should be admitted that the report had been read, yet it could not have been in judgment, as having been made subsequent to the appeal and answer; and petitioners alledged, that Popham had insisted on the same matter, by way of plea in Chancery, which had been ruled against him there, when insisted on by way of motion, and likewise ruled against him by the Lords when insisted on by his petition.
And petitioners suggested, that being but trustees for infants and debts, they were advised it was not safe to proceed without the Lords directions, which they therefore prayed, and that they might have leave to proceed on the bill of review.
The respondent Popham, by his answer to this petition, shewed that Sir Francis, his father, in 1668, married Helena, the niece and heir of Henry Rogers, with his consent; and that he and Alexander Popham, the respondent's grandfather, with the approbation of Rogers, made a settlement of a great part of their estate subject to the debts of Alexander the grandfather: that Helena died in 1671, leaving respondent, her only son; that Sir Francis contracted some debts, to provide for which, he, after his wife's death, suffered a common recovery of all or great part of the settled estate, and that Mr. Rogers, fearing his extravagance might disinherit respondent, who was then but about a year old, he, Rogers, merely to preserve Sir Francis's estate for respondent, in 1672 made his will, which is, necessarily, set out more at large than in the petition; viz. he devised his estate to the trustees in trust; in the first place, to raise money to pay his debts and legacies, and that
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