[175]Case 36.—Jonathan Vaughn, and Katherine his Wife,—Appellants; Robert Thurston, Senior,—Respondent [1701].
[Mew's Dig. vi. 1863. See Bretland v. Cope, 1700, sup. p. 199.]
The appellants by their petition stated, that in November, 1691, respondent, who was father of John, appellant Katherine's former husband, for his son's preferment in the world, gave him 100l. to purchase an annuity of 20l. per annum from one Stafford, for his life only, without any provision or advantage to appellant, Katherine, then his wife; and that John died within three months after, without having received any benefit from the annuity, and much in debt; and appellant, Katherine, resolved not to intermeddle with his effects, but was persuaded and prevailed on by respondent to take administration to him, and that respondent and his son, Robert, were present when appellant paid her husband's debts, and advised and approved thereof; and that respondent never demanded the 100l. during her widowhood, which was six years; but that, as soon as the appellant, Jonathan, and she had intermarried, respondent commenced his action at law for the said 100l. pretending it was only lent; and appellant, Jonathan, being a stranger to the intrigues of the family, and informed that it had been given as a portion, and not secured or acknowledged by any writing or memorandum as a debt, and that respondent had possessed himself of good part of his son's personal estate, preferred his bill in Chancery for relief, and discovery of the assets of John, which had come to his father's hands: And that respondent, by his answer, insisted it was a subsisting debt, and preferred his cross bill against the appellants for discovery of assets: And that both causes came to be heard, 7th November, 1699, before the late Lord Chancellor Somers; who decreed an account before Sir Robert Legard, one of the Masters, of what assets had come to appellants hands; and that the Master reported 132l. 2s. 4d. assets in appellants bands: And shewed that it appeared on the hearing, that respondent had possessed himself of 15l. of his son's effects, though he by answer had utterly denied it; and an issue at law was directed to try whether he had such effects in his hands [176] or not; but respondent, to avoid that issue, admitted the 15l. and offered to accept of it as part of the 100l. and was ordered to discount accordingly, whereby his debt was reduced to 85l. which the Master allowed him out of the 132l. 2s. 4d. after which there remained, according to the report in appellants hands, 47l. 2s. 4d. but that appellants took ten exceptions to the report; on arguing which before Sir Nathan Wright, Lord Keeper, 5th July, 1700, his lordship over-ruled some, and ordered a commission to examine witnesses as to others, whereby appellants clearly discharged themselves of 47l. and at the same commission, though the examination was confined to the matter of two exceptions, yet the appellants having no other opportunity to discharge themselves, exceeded the limits of the order, and, by positive proof, purged themselves of 35l. more, and were able, by particular proof, to have balanced the account; but the depositions to that point were over-ruled by the Court, as exceeding the limits of the order, and appellants paid 7l. costs in that respect; and, 26th July, 1701, the cause was finally heard before the Lord Keeper; who decreed appellants to pay to respondent 85l. out of 85l. 2s. 4d. assets reported to remain in their hands; which decree appellants insisted was erroneous and severe; because appellants were denied a trial at law, or a further commission to make proof of the other eight exceptions; and because appellants depositions, which were suppressed, would shew that appellants had in truth paid more than the assets amounted to; and because, notwithstanding that by the report there remained but 2s. 4d. assets in appellants hands, after paying the 85l. the Lord Keeper, by a subsequent order of the 13th of November last past, ordered appellants to pay respondent his costs, which are taxed at 224l. 17s. 4d. to the utter ruin of appellants; and insisted that awarding costs against an executrix was unprecedented, and that appellants ought rather to have their costs in their own cause, as they had been relieved in part, and had falsified the respondent's answer, and would have discharged themselves of all assets, had they been allowed to examine to those items of the report they had excepted against. (Robert Price.)
The respondent, in support of the decree, stated, that the appellant, Catherine,
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