included in the 2012l. 2s. 6d. the daughter could have had no portion at all had she lived, and the executor would hardly have parted with all the estate till she was satisfied, or he had her discharge; and because it was proved in the cause, and at the trial that Richard Tilsley left a great sum in ready money in his house in Coleman's-Street, besides that in Welch Hall, and no account is given of the money found in his dwelling-house, save by the inventory, which though not exhibited till April, 1678, was taken 13th November, 1677, at which time it was impossible for the executors to [36] know how much of the money found in Welch Hall, belonged to Richard Tilsley, because that money was not told over till, the 2d February following and because no pocket book could be given in evidence in discharge of the party who kept it; but even so, the memorandum entered there will not support the inference made from it; for John Tilsley admits the capital stock in trade between Richard Tilsley and his partners, to be 4000l. and Richard Tilsley's share 2300l. so that Richard Tisley's dividend of 2012l. 2s. 6d. would be 1157l. 17s. 7½d. and further, because the jury were misled by illegal evidence, and some have so acknowledged on oath; and the form of proceedings in Chancery ought not to outweigh the merits of a cause. And appellants insisted that new trials are frequently granted in the common law courts, where the evidence doubtful, or the jury misguided by illegal evidence, and a new trial might have been granted in this case, if appellants had not ignorantly mistaken the manner of applying for one in due time; and submitted, that a new trial would not take away respondent's right, but only bring it under a fresh examination, and give appellants an opportunity of assorting theirs, which they were in a great measure deprived of at the former trial by their own solicitors, who concealed many material papers from them. (J. Beresford.)
The respondents stated, that Richard Tilsley was in partnership with William Pemberton, Robert Pemberton, and Eduard Phillips, and kept the cash, and managed the trade at a place under Guild Hall, belonging to Christ's Hospital, called the Welch Hall, and there kept his own cash as well as the cash of the partners, and made his will, and appointed William Pemberton and Philips (his partners) and John Tilsley, executors, and died as stated by appellants, and that Pemberton and Tilsley proved the will; and 13th November, 1677, began to take an inventory, but did not exhibit it till April 15th, after when they preferred it in the Prerogative Court of Canterbury; and in that inventory is an item of 1131l. 10s. 9d. mentioned to be in ready money at testator's decease, properly belonging to his estate, but not mentioned to be in testator's house; and in Hillary Term, 1690, the appellant Ann being married to James Pottenger, he and she exhibited a new bill in Chancery [37] (though she received her thirds according to the said inventory on a former bill) for an account of the said Richard's estate, which the said John Tilsley, 18th June, 1691, answered, and annexed a copy of the inventory as the whole estate of the said Richard, and also annexed two accounts, one of the particular receipts of money, the other of his particular disbursements; among which former there is mention of 2012l. 2s. 6d. received in cash, belonging to the estate of Richard Tilsley and partners, in a chest at Christ's Hospital; and among the payments there is mention of 880l. 11s. 9d. paid to Pemberton, to make up the cash in partnership, and soon after the said John Tilsley died, having made his will, and the respondent sole executor thereof, against whom the plaintiffs (now appellants) revived that suit, and the cause was heard, and the master reported as stated by appellants; to which report both sides took several exceptions, and respondents first exception (which is the matter now in question) was, that the master had charged respondents with all the monies mentioned in the said account, which John Tilsley had confessed to have received; and had moreover charged respondent with the 1131l. 10s. 9d. mentioned in the inventory, to belong properly to his estate. Whereas the 1131l. 10s. 9d. was part of the 2012l. 2s. 6d. mentioned in the account of particular receipts, to be in cash, belonging to the estate of said Richard Tilsley and partners, as appears by deducting the 880l. 11s. 9d. paid to Pemberton, from the 2012l. 2s. 6d. the remainder being the 1131l. 10s. 9d. mentioned in the inventory: On hearing the cause on which exception, the Chancellor ordered the parties to proceed to a trial in London, whether the 1131l. 10s. 9d. was any part of the 2012l. 2s. 6d. or not, and to resort to the court for further direction: And on the trial, after a full
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