bishops and their estates with him, Countess Ann, Earl John's mother and guardian, applied to Dr. Duppa, then bishop; and in regard of her late husband's loyalty and sufferings, and in consideration of 2000l. fine, (though then worth 6000l. if to be sold to a stranger) obtained now lenses of the manor and scite of Adderbury for three lives, for the benefit of Earl John, and as any of the lives fell renewed the leases at very easy fines, for the lives of Earl John, his Lady, and afterwards of Earl Charles; and the Countess held and enjoyed the fee-simple and copyhold, as well as the said leasehold lands, and received the rents and profits from 1660, till 8th March, 1695, (when she died,) during the greater part of which time Earl John, Earl Charles, and the ladies of appellants, were minors; and upon her death the Earl of Litchfield, whose family [105] never had any pretence to this estate, under some general words in her will, claimed all the fee-simple, copyhold, and leasehold premisses to him, and his sons successively in tail-male; pretending that the countess Ana, (by supplying her husband with money during his exile) had become a purchaser of the said estates: And in 1696, Lord Sandwich, Lord Lisburne, Mr. Grevile, and their Ladies, exhibited their bill in Chancery, to be decreed in right of their Ladies, the daughters and heirs to John, Earl of Rochester, and sisters and heirs to Charles, late Earl of Rochester, to the possession of the fee-simple and copyhold, and to have an assignment of the leasehold premisses, and an account of the rents and profits to which respondents put in their answers: And on hearing the cause, 29th June and 22d July, 1700, appellants bill as to the leasehold was dismissed, and a trial at law directed to try whether any, and how much of the estate in Adderbury was freehold or copyhold of inheritance, belonging to Earl Henry at his death; and the account of the profits thereof was respited, and the possession of such parts of the leasehold as was not then in the possession of the Earl of Litchfield was to be delivered to him, and the rents, arrears, and growing rents thereof to be paid to him; which orders appellants insisted ought to be reversed, and the said leasehold lands decreed to them; for that they had as good right to the leasehold, as to the freehold and copyhold; and that the several renewals of the leases ought to be adjudged a trust for appellants; and that it was not in the power of the Countess, who acted as a guardian and trustee for infants, to renew to her own use, or to dispose of the premisses to a stranger: and that the said leases and estates had been in the Rochester family for several generations, and hold altogether in unity of possession without any distinction, and that the countess Ann, mother and guardian of Earl John, then an infant, could not, and in conscience ought not, to take advantage of the leases, being expired on the death of her husband, when in exile, and the Bishops deprived, and their estates sequestered and sold; for if guardians or trustees, when they see anything beneficial which belongs to the infant, might, by laying down their own money, take it to their own use, the rules of justice and equity must be inverted; which are, that guardians may do any thing for the infant's advantage, but nothing to his prejudice; and by many cases and precedents in Chancery, such proceedings and attempts [106] of guardians have been corrected, and set aside as fraudulent; and it appeared by proofs in the cause, that the countess took, and the Bishop granted the new leases for so inconsiderable a fine as 2000l. (when the same was worth 6000l.) in consideration of Earl Henry's loyalty and hardship, he being his intimate friend and fellow-sufferer; and for the benefit of Earl John, his son, then an infant; and insisted that the Countess's enjoyment did no more give her a right to the leasehold than to the freehold and copyhold, all which she managed as guardian; and the greatest part of the time of her enjoyment was during the infancy; and appellants contended, that any money the Countess laid out in buildings had been expended on the freehold, leasehold, and copyhold, without distinction; and that all were to go one way, and not the leasehold to attract the freehold and copyhold, and that the Countess had built for her pleasure, and enjoyed the benefit of it, so long as to be sufficiently recompensed all her monies by the rents, and profits; and that she ought not, out of gratitude to one family, make a satisfaction out of the estate of the other, especially when she had only a jointure settled in consideration of a portion paid; and though the Ladies had given her general releases, yet appellants insisted those releases were only as the Countess was their guardian, and received the profits of part of the estate they had by their mother, and is so recited in those
203
