brown case sir robert Barnardiston and other appellant William carter  respondent d may Mews dig seven see bagshaw v Spencer Ves sen a by his will  order all his personal estate to be sell for the payment of his debt and  legacy and in case it shall prove insufficient he devise his real estate to  his executor for the purpose of make good the deficiency he then devise his  real estate after such time as his debt and legacy shall be pay by the rend  and profit thereof to e for life and in case e shall have any issue male then  to such issue male and his heir for ever and after the decease of e in case he  leave no issue male then after such time as the testator debt and legacy be  full pay he devise part of his say real estate to I S in fee and the residue  to I n in fee e enter into possession and keep down the interest of the debt  but brown er p afterward suffer a common recovery of the whole estate and  declare the use thereof to himself in fee hold that a estate for life be vest  in e at the time of the recovery notwithstanding the debt be not pay and that  he can make a good tenant to the prcipe hold also that the remainder limit to  I S and I n be contingent remainder and well bar by this recovery wms Eq can  ab can sir Michael Armyne be seize in feesimple of several estate in the  county of Huntingdon Lincoln and elsewhere make his will date the that of  march and thereby desire that his executor will take care to see all his debt  and legacy pay by make sale of his personal estate not specifical bequeathe  and because his debt be great amount in the whole to pound or thereabouts a  perfect schedule whereof he declare be annex to his will under his hand and  seal he devise to his executor all his manor and land of CherryOrton and  ButolphBridge in the county of Huntingdon to be by they sell for the most that  can be get and the money arise from such sale dispose of in the payment of his  debt and legacy and lest both his personal estate and the money to arise from  such sale shall not be sufficient the testator give his executor full power to  receive the mesne profit of his whole estate lie in Pickworth and Willoughby  in the county of Lincoln or elsewhere within the kingdom of England and also  of a allotment or portion of land lie in Ireland of pound per and upon trust  that the rend and profit arise thereby shall be employ in discharge the remain  part of his debt and legacy and after such time as his say debt and legacy  shall be discharge the testator give a rentcharge of pound per and to his  servant Gamaliel Sylvester and jane his wife for their life and the life of  the long liver of they Payable quarterly the first payment thereof to commence  from the payment of his debt and he charge the manor of Pickworth with the  payment of one moiety of the say rentcharge and the manor of Willoughby with  the payment of the other moiety thereof without any deduction the testator  then devise the say allotment of land in Ireland after his debt pay to his  cousin Norris cove Esq in fee and as for his say manor of Pickworth and  Willoughby with the advowson thereof after such time as his debt and legacy  shall be pay by the rend and profit thereof he devise the same to his uncle  Evers Armyne Esq brown for his life without impeachment of waste and in case  the say Evers Armyne shall have any issue male then to such issue male and his  heir for ever and after the decease of the say Evers Armyne in case he leave  no issue male then after such time as his debt and legacy be full pay he  devise his manor of Pickworth and the advowson thereof after the death of the  lady Armyne his motherinlaw who have the same for her jointure to his nephew  Thomas style Esq in fee and he devise his say manor of Willoughby and the  advowson thereof to his nephew Thomas Barnardiston Esq in fee the testator  then give several annuity and charge one moiety thereof upon the say manor of  Pickworth and the other moiety upon the say manor of Willoughby and he declare  that his debt be only those which be mention in the say schedule and no more  and after such time as all his say debt shall be pay then and not before he  bequeathe several legacy to different person amount to pound and upward and  appoint his brother sir Thomas style and sir Thomas Barnardiston together with  his uncle Evers Armyne and Thomas Lister and his cousin Thomas Bristol  executor of his will soon after the make of this will the testator sell all  his estate at CherryOrton and ButolphBridge and also his land in Ireland and  on the that of June he borrow pound of the lady Diana Holles on a mortgage of  his manor of Pickworth and by that mortgage he covenant to pay the say pound  with the money thus raise the testator pay all the debt mention in the  schedule annex to his will and afterward he make a codicil to his will date  the saint of June whereby after take notice that he have purchase land in  Ingoldsby in Lincolnshire he devise the same to his nephew Thomas style and  Thomas Barnardiston equal and to their heir on the saint of December follow  the testator die and after his death all the executor prove his will but  Thomas Lister one of they die before he have otherwise act brown er p  difference afterward arise among the survive executor certain article be  execute between they date the d of January whereby in order to settle those  difference it be declare that the debt of pound due to the lady Diana Holles  upon the say manor of Pickworth with the interest then due and to grow due  thereon shall be take as the proper debt of sir Michael Armyne to be pay out  of the mesne profit of his real estate which they be authorize to receive for  the payment of his debt and by other article between the executor date the d  of June it be agree that Edward Searson who have be employ by sir Michael  Armyne in his lifetime and by his executor after his death to receive the rend  and profit of his land shall collect and gather in all the rend and arrear of  rend then due and to become due out of Pickworth and Willoughby and dispose of  the same towards payment of the say pound debt upon Pickworth and that the say  Searson shall from time to time brown account for all such his receipt and  disbursement to the say executor Evers Armyne the devisee have get into  possession of the say manor of Pickworth and Willoughby keep down the interest  of the pound mortgage until his death but he think proper in his lifetime to  suffer a common recovery of these estate and to declare the use thereof to  himself in fee he afterward make his will whereby he devise both these manor  to his nephew Armyne Bullingham in tail with remainder to the heir male of the  body of his granddaughter Elizabeth sander afterward the wife of John Mortimer  and in default of such issue to the heir of her body with remainder to his own  right heir and on the d of June he die after the death of Evers Armyne the say  Thomas then sir Thomas Barnardiston enter upon the manor of Willoughby and  receive the rend thereof but who then enter upon the manor of Pickworth do not  appear however the pound mortgage have by several mesne assignment become vest  in faith Heneage widow she in April enter upon the say manor of Pickworth and  receive the rend and profit thereof till her death when Thomas Heneage Esq her  executor become entitle to the mortgage and enter upon the say manor accord in  march sir Thomas Barnardiston the devisee borrow S of sir Richard Rothwell and  for secure the repayment thereof with interest he mortgage the manor of  Willoughby to he for a term of year and this mortgage become afterward vest in  the Lord Middleton be on the be it of July assign by he to sir Samuel  Barnardiston Bart in consideration of pound S then due thereon the say sir  Thomas Barnardiston afterward borrow pound more and for secure it he make  another mortgage of the say manor of Willoughby which by mesne assignment  likewise become vest in the say sir Samuel Barnardiston and both these  mortgage be by he assign to the appellant Samuel Barnardiston and upon the  death of sir Thomas Barnardiston the appellant sir Robert as his brother and  devisee claim to be entitle to the equity of redemption of this manor after  the death of Evers Armyne several suit be and controversy arise between the  say Armyne Bullingham his devisee and the say sir Thomas Barnardiston the  devisee of sir Michael Armyne touch the say manor of Willoughby and the estate  which the say Evers Armyne have therein in consequence whereof a special  verdict be find in a action of replevin wherein the title of both these party  be bring into question and after several argument in the court of common plea  judgement be give in favour of the say Armyne Bullingham Loddington v kime I  salk lev Eq can ab can but both of they be relation they afterward come to a  agreement and by deed enrol date the that of January and a fine and recovery  in pursuance thereof they join in a conveyance of the brown say manor of  Willoughby and thereby a rentcharge of pound per and clear of tax the whole  estate be only pound per and be secure out of the say manor to the say Armyne  Bullingham in feesimple and subject thereto the manor be convey to the say sir  Thomas Barnardiston and his heir this rentcharge be afterward great in arrear  Nicholas Bullingham the cousin and heir and also the administrator of the say  Armyne Bullingham bring his bill in chancery to enforce the payment thereof  but the appellant coppin have purchase the whole rentcharge and arrear he and  the other party to that suit brown er p in order to compromise the same enter  into article date the saint of February whereby it be agree that coppin shall  have the sum of pound in lieu of the say rentcharge and the arrear thereof and  that the say manor of Willoughby shall be sell for the payment in the first  place of this pound and for the other purpose therein mention and these  article be establish by a decree of the court on the that of may the say manor  be accord sell and sir John Newton Bart be report and afterward confirm the  best purchaser thereof for the sum of pound but in easter term and before the  conveyance to sir John Newton be execute the respondent who claim the equity  of redemption of the manor of Pickworth under a conveyance from the heir of  Thomas style the devisee exhibit his bill in the court of chancery against the  appellant and Thomas Heneage the mortgagee suggest that the pound mortgage  upon Pickworth ought to be esteem as one of the debt for the payment whereof  sir Michael Armyne have make provision by his will and to stand in the place  of the scheduledebts and therefore pray that he the plaintiff may be admit to  redeem the say manor of Pickworth on payment of what shall appear due to the  say Thomas Heneage and that a proportionable part of the say debt for which  Pickworth be mortgage by sir Michael Armyne may be charge upon Willoughby and  pay to the plaintiff and that a proportional part of what have already be pay  out of Pickworth may be reimburse to he out of Willoughby on the d of march  this cause be hear before the Lord chancellor Cowper when his lordship declare  that the construction of the will and codicil of sir Michael Armyne ought to  extend to all the debt he owe at the time of his death and not to the debt  mention in the schedule annex to his will only and that sir Michael by make a  mortgage of the say manor of Pickworth for secure the pound to the lady Holles  show only how that money shall be secure and not in what manner the same shall  be pay that the make such mortgage be not a revocation of the purpose in his  will that the trust shall extend to all the debt he owe at the time of his  death and that the mortgage be one of those debt the plaintiff ought to be  admit to a redemption thereof on payment of what shall appear due to the  defendant the mortgagee for his brown principal interest and cost and that the  plaintiff ought to have a proportionable contribution out of the manor of  Willoughby towards the payment thereof and order and decree the same accord  and that it may be see what that proportion ought to be it be refer to a  master to take a account of what debt be owe by the say sir Michael Armyne at  the time of his decease and what part thereof be pay out of his personal  estate and out of Orton ButolphBridge the land in Ireland or any other land by  his will direct to be sell for the payment thereof before the manor of  Pickworth and Willoughby be to be charge therewith and when the master shall  have take such account then he be to see what have be pay out of the rend and  profit of the manor of Pickworth and what out of the tent and profit of the  manor of Willoughby towards satisfaction of the old debt and to balance the  account between the say two manor by rateable proportion it be sir Michael  Armynes intention that have charge the say two manor with his debt the same  shall be clear thereof before they shall come to the possession of his  devisees and when the master shall have settle the balance between the manor  then either side be to be at liberty to apply to the court for further  direction touch what contribution ought to be pay out of the manor of  Willoughby towards satisfaction of the say debt by mortgage and what rateable  proportion thereof the same ought to bear in case of the say manor of  Pickworth and for that purpose the master be to state the annual value of each  of the say manor that it may be see what proportion each manor ought to bear  and if upon such account to be take it shall appear that Pickworth have pay  more than its proportion of the say debt and interest then the same be to be  reimburse out of Willoughby and the plaintiff be at his charge to bring the  heir at law of sir Michael Armyne and also the heir at law of Evers Armyne  before the master to contest the say account and for that purpose the  plaintiff and defendant be to join in publish proper notice in the gazette but  these direction be to be without prejudice to sir John Newton the purchaser  who be to have a good title before he part with his purchasemoney from this  decree the defendant sir Robert Barnardiston Samuel Barnardiston and brown er  p John coppin appeal and on their behalf it be argue r Raymond W peer William  that if Evers Armyne by the will of sir Michael Armyne take a estate tail the  recovery suffer by he bar the remainder to Thomas style but if Evers Armyne  take only a estate for life then the limitation to the issue male of Evers  Armyne and his heir for ever be a contingent remainder in feesimple to the  issue male that be to the first son of Evers Armyne and the remainder limit to  Thomas style be a contingent feesimple also but those fee be not expectant one  after another it be admit that by law a feesimple can be limit after a  feesimple but these fee be two concurrent contingency not contrary to one  another nor either of they vest and brown therefore if Evers Armyne have have  issue male then such issue male have take a feesimple but if Evers Armyne die  without have any issue male then Thomas style have take a feesimple and then  the common recovery suffer by Evers Armyne bar the remainder to his issue it  be a contingent remainder and likewise the remainder to Thomas style that be  contingent also so that on the death of Evers Armyne without issue Thomas  style can not take by this devise and consequent the respondent who claim  under Thomas style have no right or title to the manor of Pickworth and so it  be adjudge in the court of common plea pasch W III in a question upon this  will between Loddington and kime as print in sergeant salkelds report that in  case the respondent have any right or title to the say manor of Pickworth sir  Michael Armyne intend by his will only to secure the debt mention in the  schedule thereunto annex and it be resolve in the say case of Loddington and  kime as report in lev that by the several clause and the whole scope of the  will it appear that the debt to be pay by the provision of the will be the  debt in the schedule but if sir Michael Armynes will shall be take to extend  to the secure of all his debt yet by his make a mortgage of the manor of  Pickworth only and do this subsequent to his will he thereby revoke his will  pro tanto and do himself execute the trust as to the say schedule debt that  the appellant Samuel Barnardiston and John coppin be purchaser of the say  manor of Willoughby for a valuable consideration and without notice of the  mortgage make by sir Michael Armyne of the manor of Pickworth subsequent to  his will that the respondent right or title if any he have accrue fortyfour  year before he or any under who he claim pursue the same or file his bill in  chancery since which time so many mortgage and conveyance have be make of the  say manor of Willoughby a fine and recovery levy and suffer thereof and such  several transaction relative thereto as before state that the appellant find  it impracticable after so great a length of the to make out such a account as  by the decree be direct to be take or to prove what part of sir Michael  Armynes estate be sell or for what or how the money thereby raise be apply or  how much his executor or the receiver by they a point have receive out of the  rend and profit thereof or to have the rend and profit of the say manor of  Pickworth and Willoughby apply as by the decree be direct towards satisfaction  of the say pound mortgage all which inconvenience have arise by the delay of  the respondent and those under who he claim in not pursue their claim while  matter be recent and without any excuse be give for such delay of which the  respondent himself will now reap the advantage And last that the respondent  claim the reversion and equity of redemption of the manor of Pickworth under a  mere voluntary conveyance and for which he have pay no consideration it seem  that John Mortimer and Elizabeth his wife who be the granddaughter and heir at  law of Evers Armyne though party brown to the suit in chancery be not original  make party to this appeal nor have they any notice of it till within a few day  of the hear and therefore on the that of may they apply to the house by  petition for leave to be hear by their counsel at the same time that the  appeal shall be hear whereupon it be order that counsel for the petitioner may  attend at the say hear in order to be hear if the house shall think fit jour  vol p accord a case be print for they and on their behalf it be insist t  Lutwyche n Lechmere that the decree ought to be reverse as to that part of it  by which the respondent carter be admit to redeem the manor of Pickworth for  that he have no title to the estate in question and though the manor of  Willoughby be liable to a contribution towards the mortgage yet that mrs  Mortimer and not brown er p carter be entitle to the benefit of such  contribution and in support of this proposition it be argue that Evers Armyne  be tenant for life of the manor of Pickworth and Willoughby and that the  remainder limit to Thomas style be a contingent remainder and perfect  uncertain whether it will ever take effect or not that it be a know and  undoubted rule of law which have never yet be deny or overrule by the  judgement of any court that where a tenant for life suffer a recovery it be a  good bar to and destroy any contingent remainder which depend on the estate  for life and in this very case the opinion of the court of common plea have be  already give in a point entire proper for their judgement that the estate vest  in Evers Armyne notwithstanding the devise to he be original subject to the  payment of the debt and legacy mention in the will and that the title to the  redemption of Pickworth be only a question of law the same ought to have be  try at commonlaw where the say John and Elizabeth Mortimer may have full make  out their title and the liberty of do which they now pray on the part of the  respondent carter it be contend S Cowper t reeve that the mortgagedebt of  pound which sir Michael give his personal covenant to pay be a debt within the  word as well as meaning of his will for though sir Michael in his will say I  know my debt to be great amount to pound a perfect schedule whereof be  hereunto annex yet the word of his will be not confine to the schedule debt  for if he have forget or omit out of the schedule pound of his debt no man can  say that the creditor for pound shall not have the benefit of the will as well  as the schedule creditor especial when sir Michael in his will express himself  in these general word without restrain they to the schedule videlicet my will  be that my executor see all my debt pay out of my personal estate and because  I know my debt to be great I devise my land in Orton etcetera to be sell for  payment of my debt and lest both personal estate and the money raise by sale  be not sufficient I devise the profit of Pickworth and Willoughby in trust to  pay the residue of my debt till the whole of they be full pay and after my  just debt be full pay I give a annuity to Silvester and his wife the first  brown payment to begin after my debt be full pay and as to my manor of  Pickworth and Willoughby from and after such time as my just debt be pay then  from and after such time I devise the say manor to my uncle Evers Armyne for  life that it be prove in the cause that sir Michael apply thepound borrow on  the mortgage to pay the schedule debt and it appear by the two deed poll  execute by the executor that they understand this mortgage to be a debt within  the will but above all sir Michael after the mortgage republish his will by  the codicil and at the time of make the codicil there be no schedule debt  subsist the mortgage debt be the only debt he then owe it be therefore a debt  which he mean and intend shall be pay by the provision and trust create by his  will before Evers Armyne or any of his devisees shall have or take any estate  or interest under his will that if the mortgage be a revocation of the will  pro tanto yet that revocation extend only so far as concern the creditor lady  Holles but do not alter the case as between the devisees style and  Barnardiston however a full answer to the pretence of a revocation be that the  codicil to the will be make after the mortgage and the codicil be a new  publication of the will and of every part of it it be apprehend that it ought  to be now take as if the will itself have be make after the mortgage and in  that case it be plain that the testator charge the mortgagedebt of pound upon  Willoughby as well as upon Pickworth as to the pretence that the devise to  Thomas style be a contingent remainder and therefore bar by the common  recovery which be suffer by Evers Armyne the tenant for life the respondent  carter insist upon these two answer to it that when the testator have in  express word and in as strong term as can be invent limit the time when the  estate give to Evers Armyne shall commence and take place videlicet and as to  my manor of Pickworth and Willoughby from and after such time as my just debt  be pay by the profit of they then from and after such time I devise unto my  uncle Evers Armyne the say manor for his life it will be a strange violence  upon the will to expound it so as to say that the testator intend contrary to  his own express word that Evers Armyne shall have a estate for life before the  debt be pay and especial when this exposition can serve no purpose except only  to enable Evers Armyne the tenant for life as the appellant will have it to  dispose of the inheritance and defeat the reversioner brown er p Thomas style  and therefore if Evers Armyne have not nor can have any legal estate before  the full payment of the debt his recovery be void because the debt be not yet  pay that the devise of Pickworth to Thomas style be not a contingent remainder  but be a vest remainder it be plain that the devise to the issue male of Evers  Armyne if he shall have any be a contingent remainder that a contingent  remainder be mere in abeyance or possibility till it happen and the  contingency in this case never do happen for Evers Armyne never have a son so  that the word of the will may be reasonable brown marshal to run thus that sir  Michael Armyne devise Pickworth after such time as his debt shall be full pay  unto Evers Armyne for his life remainder to style and his heir subject  nevertheless to this open that if Evers Armyne have a son then to that son and  his heir for ever for if that case have happen videlicet if a son have be bear  it will have take place and defeat style but since it do not happen and as the  devise to style be a vest remainder never disjoin from the estate for life of  Evers Armyne the same be not nor can be disturb or bar by the common recovery  or at least it be a spring or executory devise to style to arise upon the  contingency of Evers Armynes not have a son bear and as such not barable by  the recovery the testator intent therefore be full express videlicet that  Evers Armyne shall have only a estate for life to commence after the debt be  full pay and that style shall have the remainder in fee to commence after the  payment of the debt and immediate after Evers Armynes death if there be no son  bear the appellant however be anxious to have the will construe direct  contrary to the plain word of it videlicet that Evers Armynes estate shall  commence before the debt be pay only to introduce a nicety in law that Evers  be tenant for life may dispose of the inheritance and defeat the reversion to  style but it be hope that the Supreme judicature will not assist any such  construction as to the pretence of the mortgage and other disposition of  Willoughby it be insist that the appellant and those under who they claim have  full notice of sir Michael Armynes will and of all the trust and provision  thereby create for the payment of his debt for that they themselves claim not  only Willoughby but Ingoldsby also under the very same will and codicil and  the pound lend by sir Richard Rothwell to sir Thomas Barnardiston be lend on  the security of Ingoldsby the manor of Willoughby be throw in only by way of  collateral security for sir Richard Rothwell be very well apprise that  Willoughby be liable to its proportion of sir Michael debt and as to the  pretend difficulty in account for the profit of Willoughby the appellant stand  by very easy and unjust put the rend of Willoughby into their pocket without  contribute to or assist Pickworth while it be labour to pay the debt of pound  and interest the appellant ought not therefore to take advantage of their own  neglect and yet in this case they complain without any manner of reason for  the decree have not direct any retrospective account of the profit of  Willoughby which they have so long wrongful receive see note p brown on the  saint of may jour vol p counsel be call in to be hear on this appeal and be  direct to proceed counsel in behalf of John Mortimer Esq and Elizabeth his  wife who upon their petition be allow to attend to be hear if the house think  fit express their fear that the petitioner may be preclude if their lordship  shall give judgement without permit they to be hear and therefore desire time  to bring a appeal allege that the say Elizabeth claim the estate in question  as heir to Evers Armyne but the other counsel object brown to the put off the  cause they be direct to withdraw and be accord withdraw a debate ensue and the  question be put that this house do now proceed to the hear of the cause  between the appellant and respondent upon the appeal and answer before this  house and be resolve in the affirmative the counsel be call in and acquaint  therewith and accord the counsel for the appellant and respondent be hear upon  the say appeal and answer the judge be then direct to give their opinion  whether the will of sir Michael Armyne do extend to include all the debt of  the say sir Michael Armyne and have confer together the Lord chief baron in  the name of they all deliver it as their opinion that the will of the say sir  Michael Armyne do extend to include all his debt the judge be also direct to  give their opinion whether the estate for life be vest in Evers Armyne at the  time of the recovery before all the debt be pay so that he can make a tenant  to the prcipe brown er p but the judge desire some time in regard the same as  they allege be a question of great importance they be allow till the next day  in order to confer together the better to give their opinion thereon accord on  the next day the Lord chief justice of the court of common plea in the name of  all the judge who have consult together deliver their unanimous opinion that  the estate for life be vest in Evers Armyne at the time of the recovery then  the judge be direct to give their opinion whether the remainder to style be of  that nature as to be bar by the recovery and have confer together the say Lord  chief justice deliver their joint opinion that the same be only a contingent  remainder whereupon it be order and adjudge that the decree shall be reverse  and that the respondent bill in the court of chancery as against the appellant  shall stand dismiss without prejudice to the right if any of the heir at law  of sir Michael Armyne or Evers Armyne ibidem p note brown subjoin to the  respondent case be the follow answer to the case of Loddington and kime as  report in Levinx that in draw the special verdict the plaintiff counsel  overreach the defendant counsel for the special verdict find two fact that be  absolute true and omit to find one fact that be true and absolute material  that the schedule debt be pound be all unpay at sir Michael death which be not  true that the schedule debt of pound be pay brown after sir Michael death and  in the lifetime of Evers Armyne and before he suffer the common recovery which  be not true the codicil to the will that be make in time after the debt of  pound be contract be not find by the special verdict though it be true and  absolute material now those two fact which be true do very much influence the  case for Levinx report that in the argument of the case the first question be  whether any estate be vest in Evers Armyne before the debt of pound be pay for  if not then the common recovery suffer by he and the disposition of the estate  by his will be void and the report say that it be resolve by the judge without  any difficulty that the estate for life be vest in Evers Armyne because by  several clause and by the whole scope of the will it appear as the book say  that the debt which by the provision of the will be appoint to be pay  precedent to the vest of the estate in Evers Armyne be the schedule debt all  which be find to be pay before the suffer of the recovery from this book it be  plain that the judge be of opinion that the schedule debt ought to be pay  precedent to the vest of the estate in Evers Armyne and the special verdict be  artful draw the fact that be find make this specious case that sir Michael  annex to his will a schedule of his debt be pound and appoint those debt to be  pay before any estate shall vest in Evers Armyne and after his will contract a  new debt of pound by mortgage upon which do arise this question whether the  estate shall vest upon payment of the first debt or shall not vest till after  payment of the new debt of pound contract after the will and the judge be so  mislead by the mistake special verdict and in favour of vest estate do resolve  that the estate do vest upon payment of the schedule debts This resolution be  in effect in favour of the respondent in regard these two fact be utter true  for sir Michael after his will contract this new debt of pound and with it and  with the money raise by the sale of Orton and ButolphBridge do pay all the  schedule debt in his lifetime and leave no debt unpay at his death but only  the pound contract after his will to pay the schedule debts This fact be full  put in issue in this cause for the respondent by his bill have positive charge  it as a most material part of his case and the appellant in their answer have  in effect admit that the schedule debt be pay in sir Michael lifetime and that  the new debt of pound be contract for that purpose and have make their defence  by argument from that fact as take to be true but the respondent have full  prove that fact videlicet that the schedule debt be pay in sir Michael  lifetime with the very pound borrow of lady Holles and with the money raise by  the sale of Orton etcetera and the appellant have not so much as attempt to  disprove it but the full answer of all be that the special verdict have not  find a most material part of the case for it have not find the codicil which  be make after brown er p the new debt of pound be contract for the will be  make the that of march the new debt of pound be contract the that of June and  the codicil which be a new publication of the will be make the saint of June  so that if the new debt of pound be the only debt that be owe at the testator  death and be contract before the codicil then by the express word of the will  as be new publish this debt of pound be the very debt which be to be pay  precedent to the vest of the estate in Evers Armyne upon the whole the special  verdict have not find the case and consequent the judgement upon it be nothing  to the purpose or if it be to the purpose it be in favour and not to the  prejudice of the respondent note also the judgement in this case be not  unanimous there be only two judge against one although the fact be so true  state by the special verdict