the said agreement in all things on his part; but Owen and Eleanor did not execute any grant of the rent charge, nor settle any lands according to the marriage agreement; and Owen, after several years cohabitation, proved an unkind husband; and, after he had often immoderately corrected his wife, without any cause, forcibly turned her out of his doors, and sent her to her father's, where she continued upon a slender separate maintenance, until Owen's death, in November, 1694; for some years before which, appellant, who was no relation, insinuated himself to his favour, being his agent and tenant, and was principally instrumental to his ill disposition to his wife, sisters and relations; and when he sickened, and began to decay in his health, appellant, who was an attorney at law, prepared several voluntary and fraudulent instruments for him to seal, on purpose to defeat Jane of her marriage agreement, viz. one obligation of great penalty, conditioned for payment of 480l. to appellant, though appellant was then indebted to Owen 200l. and upwards. A deed of gift, a will, a bargain and sale, a lease and release, and a deed-poll, [56] importing to be in execution of some power in the said articles on marriage, which, though of different dates, were all executed at the same time, before the same witnesses, thereby to dispose of all his real and personal estate to appellant; and immediately, on Owen's death, appellant possessed himself of his personal estate, 400l. and upwards; and Owen Wynne, Esq. as heir at law to Owen's father, entered upon the real estate, claiming the same by virtue of a remainder in the father's will, which title is yet litigated between him and appellant. And that respondent Anwill, afterwards married Jane, and they exhibited their said bill for a specific execution of the marriage articles; and defendants having severally answered, Owen Wynne, Esq. insisted on his title to part of the premisses of the yearly value of 36l. and that the said rent charge of 35l. could not affect the same. And appellant insisted, that other part of the deceased's real estate was subject to other incumbrances prior to the marriage covenants; and that all the real estate was but of the yearly value of thirty-one pounds, and that the title was then litigated between appellant and defendant, Wynne, who was in possession; and the cause being at issue, witnesses were examined on both sides, whereby it appeared, that the title of the real estate was controverted, and that the personal estate of the covenantor Owen, in appellant's hands, amounted to 400l. and upwards. And the said cause being heard, it was decreed, and further decreed, as stated by the appellants.
To be relieved against which decree, appellant first brought a bill in the Court of Chancery, at Westminster, in nature of an appeal, and pending that suit, brought the present appeal; so that the respondents are twice prosecuted at the same time, for one and the same thing. And respondents further stated, that Owen Wynne, the husband, was a wilful conceited man, and easily imposed upon; and there was not any proof in the cause of disobedience in the respondent Jane towards him, nor any proof tending to taint her virtue or chastity; and that the reason of lodging respondents demands upon the personal estate, in the first place, was because the real estate, which was upon the marriage treaty represented to be 70l. per ann. was not really competent to answer the annuity of 35l. and because the title of the real estate is litigated by a title paramount the husband's.
[57] Die Veneris, 24 Februarii, 1698. After hearing council upon this appeal, it was ordered and adjudged by the Lords, That the appeal be dismissed with 20l. costs against appellant. Lords Journ. vol. xvi. 389.
Case 12.—William Warr, Gentleman,—Appellant; John Præd,—Respondent [1698].
[Mew's Dig. i. 70.]
The appellant stated, that in 1680, appellant and Daniel Gates sent the ship Old African, (whereof he was sole owner) with great sums of money and effects to Zante and the Morea, to bring home a cargo of currants for his account, and consigned her to respondent, then living at Zante, who accordingly bought a cargo
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