hearing of witnesses on each side, and examination by the court and jury, of books and papers produced on each side, the jury being ready to give a verdict, the appellant voluntarily became nonsuit, and thereby gave up the cause; after which the cause was heard before the Chancellor, who ordered that respondents said exception be allowed, and that the 1131l. 10s. 9d. be taken as part of the 2012l. 2s. 6d. and over-ruled the other exceptions on both sides, and referred it back to the master to make his [38] further report therein; but the appellant petitioned for, and obtained a rehearing of the said exception, and on a full debate, the Chancellor ordered the Master to proceed according to former order; and, 1st May, 1697, the Master made his further report, and certified due to the appellants, 47l. 18s. 9d. which report was duly confirmed; after which appellants summoned respondent twice before Lord Chief Justice Holt, to obtain his certificate for a new trial; who, upon hearing council on both sides, saw no cause to certify any ground for a new trial, which the Court of Chancery also refused to grant, though often moved for that purpose; and the decree being now signed and enrolled, respondent hoped the said decree should be affirmed, because respondent is only executrix of an executor,, and an utter stranger to this whole affair, which was transacted above twenty years since, and because the issue was directed to be tried at law, on a fair and full hearing of council on both sides, and not by any consent of appellants council, or at the importunity of respondent's council; and lastly, because the trial was had by a substantial jury of London, upon a full and long examination of the whole matter, upon producing all the books relating to the said partnership, and hearing the whole evidence and allegations on either side. (T. Powys. E. Northey.)
Die Marturii, 22 Junii, 1698, after hearing council on both sides on this appeal, It was ordered and adjudged by the Lords, that the said petition and appeal he dismissed, and the several orders and report complained of be affirmed. Lords Journ. vol. xvi. 325.
[See Mew's Dig. vi. 1863 (Bretland v. Cope), Colles, p. 97. See Faughan v. Thurston, Colles, p. 175.]
The appellants stated, That Sir Thomas Fowle, by his will, dated 30th July, 1691, bequeathed two fee farm rents, (in the will particularly mentioned) one 76l. 6s. 8d. per ann. the other 50l. per ann. to appellants Bretland and Fowle, (his executors) and their heirs; and directed that they, out of his personal estate, should purchase lands and hereditaments, to make up said two fee farm rents 300l. per ann. and should permit and suffer Susanna, his daughter, then the wife of Jonathan Cope, during her life, to take the rents and profits of the old rents and new purchase, to her own separate use; and afterwards permit and suffer such child or children of Susanna, to take the rents and profits, or any part thereof, for such term and estate; and charged or chargeable with such sum or sums of money, as Susanna, (distinct without her said husband or any other husband) by any writing, deed, or will, signed, sealed, and published, in the presence of two or more witnesses, should appoint; and that in case of no such direction or appointment, the trustees should convey the same to the use of Thomas Cope, son of said Jonathan and Susanna, for life; remainder to his first and other sons in tail male; remainder to all the sons of Susanna by Jonathan, successively, in tail male; remainder to all her sons by any other husband, successively, in tail male; remainder to the right heirs of Sir Thomas Fowle. And that Jonathan Cope, by his will, dated 15th July, 1694, appointed all his debts to be paid, and made his wife executrix, during her widowhood, and died greatly indebted, much more than his personal estate could satisfy. And Susanna, to satisfy her husband's debts, (about 5000l.) and being advised she had power to
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