sion; and the bags found in Welch Hall were removed to Christ's Hospital by the president and governors thereof, landlords of Welch Hall, in usum jus habentis; and 13th November, 1677, an inventory was taken of testator's estate, intitled an inventory of his goods, chattles, &c. seen, valued and appraised; wherein the sum of 1131l. 10s. 9d. so found in his house, is expressly set down as his proper estate, but, in this inventory, the money found in Welch-Hall was [34] not specified otherwise than under the general name of his stock in trade, and his part of the profits thereof: And that John Tilsley was the only acting executor, and paid appellants several sums; but testator's daughter, Elizabeth, being an infant, and not intitled to receive her share, appellants did not call John Tilsley to account till after her death; and in 1691, appellants preferred their bill in Chancery against the Executor, for a discovery and account; and John Tilsley, in his answer, set forth the inventory taken 13th November, 1677, and distinguished the 1131l. 10s. 9d. as the proper estate of Richard Tilsley; and set forth likewise his receipt of the 2012l. 2s. 6d. from Christ's Hospital, which he called money belonging to the estate in partnership; and having given an evasive account of other suis charged upon him by the bill, appellants took exceptions to his answer, but before they could be argued, John Tisley died, and made respondent, Angelott Wright, his executrix; so that appellants lost the benefit of their exceptions: And, in 1692, appellants revived their suit against respondents, who answered, and the cause was heard 23d May, 1693, before the Lord Keeper, and an account directed of both Richard and John Tilsley's estates; and respondent was decreed to be answerable for John Tilsley's receipts, as far as his estate could extend: And 14th November, 1694, the master reported, that John Tilsley had received of Richard's estate 6540l. 12s. 6d. including said sums of 1131l. 10s. 9d. and 2012l. 2s. 6d. and had disbursed 5361l. 3s. 8d. and that there remained due to appellants 1179l. 8s. 10d. to be paid by respondent out of the estate left her by John, which the master reported to be 1237l. 3s. 9d. To this report respondent excepted, and insisted that the 1131l. 10s. 9d. was part of the 2012l. 2s. 6d. found in Welch Hall, and not a distinct sum; and in 1695, the exception was argued, and the Court directed a trial at law upon this single issue, viz. whether the 1131l. 10s. 9d. was included in the 2012l. 2s. 6d. which issue was tried, in Trinity, 1690, before Holt Chief Justice, where respondent offered in evidence a pocket book, pretended to be kept and written by John Tilsley, wherein was a memorandum, that he had paid to William Pemberton, one of Richard Tilsley's partners, 880l. 11s. 9d. out of the 2012l. 2s. 6d. and because 880l. 11s. 9d. and 1131l. 10s. 9d. make 2012l. 2s. 6d. they would infer, that the [1]131l. 10s. 9d. specified in the inventory was Richard Tilsley's [35] part of the 2012l. 2s. 6d. found in Welch-Hall; and alledged that the inventory was not exhibited till April, [1678], which book was not proved to be John Tilsley's hand-writing, though if so, no evidence in law, and so the Chief Justice declared; but one of appellant's council unwarily admitting the jury to see that book, they were misled by it (as some of them since acknowledged upon oath) and agreed to a verdict for respondent, which the appellants council perceiving, suffered a nonsuit; and in 1696, appellants applied for a new trial, which the chancellor declared he was tied up by the rules of the court from granting, unless the judge should certify the case proper for one; which the Chief Justice declined to do, because appellants had, through ignorance, neglected to apply whilst the cause was fresh in his memory; and therefore the Lord Chancellor ordered, that the 1131l. 10s. 9d. should be taken as included in the 2012l. 2s. 6d. and this decree was signed and inrolled; which respondents insisted ought to be reversed, and a new trial granted; because defendant, John Tilsley, in the schedule to his answer, calls the 1131l. 10s. 9d. the proper estate of Richard, and calls the 2012l. 2s. 6d. money belonging to the partners; which, if the first sum had been included in the second, he would not have done, but would have distinguished; and because there were several goods, rings, and other things besides the bags of money found in Welch Hall not noticed in the inventory, which is an argument that the inventory was only made up of Richard Tilsley's estate, and that no part of the 2012l. 2s. 6d. which was not numbered, when that inventory, was taken, would be included in the inventory; and because Richard Tilsley's daughter had 1000l. bequeathed her by the will, to be paid at 21. which she, dying under age, never received, and appellants are now intitled to, and if the 1131l. 10s. 9d. be
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