atkins case Powell versus KNOWLER at the roll December see James v Kerr Ch d  where a person undertake to make out the title of another to a estate and be  to have a part of the land as a satisfaction for his trouble though the  agreement for this purpose be arIfully draw in order to keep it out of the  statute of champerty he will not be entitle to have a specific performance  decree here but will be leave to his remedy at law upon the death of sir  Thomas Coleby the plaintiff come to Mr Gilbert Knowler the brother of the  defendant and tell he that he be positive be can make it out that he Mr  Gilbert Knowler be the sole heir or at least a coheir of sir Thomas Coleby Mr  Gilbert Knowler it be extreme doubIful at that time who be heir or coheir of  sir Thomas Coleby decline it and be unwilling to engage in it but upon the  press solicitation of the plaintiff and upon his offer to defray the whole  expense of any suit that shall be commence Mr Gilbert Knowler listen to the  proposal and execute the follow article of agreement may the that memorandum a  wager be make and this day enter into between Gilbert Knowler Esq and Francis  Powell clerk the say Gilbert Knowler wager with the say Francis Powell pound  that he the say Gilbert Knowler be not heir coheir or one of the coheir of sir  Thomas Coleby late of Kensington and the say Gilbert Knowler do bargain and  promise with and to the say Francis Powell that he the say Gilbert Knowler his  heir executor c will pay to Francis Powell his executor or administrator pound  so soon as it shall be prove that the say Gilbert Knowler be heir coheir or  one of the coheir to the say sir Thomas Coleby and the say Francis Powell  wager with the say Gilbert Knowler pound that lie the say Gilbert Knowler be  heir coheir or one of the coheir to sir Thomas Coleby decease and this day  enter into bind in the penalty of pound to pay the pound to the say Gilbert  item the say Gilbert Knowler do promise to prosecute suit both in law and  equity for recovery of this claim and the say Francis Powell promise to gather  necessary evidence together in order to prove the say gilbert right item it be  also agree between the say party that if the value of the estate and rend  recover by the say Gilbert as heir c be less than pound the say Gilbert shall  be oblige to pay the say Francis Powell one full half of the value of the  estate so recover item it be also agree that the say Francis Powell shall take  his bind he have this day enter into to bind himself for payment of pound to  the say Gilbert Knowler on the that of December next at pound in part of the  sum of pound or such less sum as may arise from this wager accord to the forgo  article if the say Francis win the say wager item the say Francis consent and  agree that the say atkins Gilbert shall over and above the say pound deduct  and keep back out of the say pound or such less sum as shall or may arise from  the wager all such money as he the say Gilbert shall have any way expend or be  liable to pay in or about the prosecute any suit or suit f r recover this  claim item the say Francis atkins er p consent that he the say Gilbert shall  no otherwise be liable to pay to the say Francis Powell the say pound or less  sum than by give security for it upon the say estate so to be recover and if  the say Gilbert or his heir be or be ready to execute any deed or write  whereby to secure the say pound or less sum accord to this agreement to the  say Francis or his executor or administrator by way of sale or mortgage upon  the say estate or any sufficient part thereof within two month after the say  Gilbert shall be in quiet possession of the same then it shall be understand  that the say Gilbert have full perform his part of this agreement to which  article William Knowler the defendant in the present cause be one of the  witness and the say article be now in his custody soon after the execution of  the article Gilbert Knowler bring a bill in the court of chancery and issue be  direct to try whether Gilbert Knowler be heir or one of the coheir of sir  Thomas Coleby and a verdict be find in the affirmative that he be one of the  coheir and when the cause come on upon the equity reserve possession of one  three of the estate be decree to Mr Gilbert Knowler in a short time after the  decree ejectment be bring by one person claim to be the sole heir of sir  Thomas Coleby and a bill be prefer by other person against Gilbert Knowler set  up different right to the estate but the bill be dismiss and a perpetual  injunction grant before a writ of partition can be take out Mr Gilbert Knowler  die I but by a codicil date July the that he devise all his undivided three in  the message land c situate in Middlesex and Essex or elsewhere which he as one  of the coheir of sir Thomas Coleby late recover to his brother William Knowler  the defendant in trust that he shall with all convenient message land c shall  be divide and allot into three and assure in feesimple unto the reverend Mr  Francis Powell rector of all saint in the town of Colchester and unto his heir  and assign such part and so much of my say premise and land as shall be value  at the sum of money he the say Francis Powell be shall or may be entitle unto  by virtue of a contract or agreement bear date c now in the custody or power  of my say atkins brother doctor William Knowler item my mind and will be that  my agreement with the say Francis Powell shall be full perform and satisfy out  of the message land c late belong to the say sir Thomas Coleby and not out of  any other Dart of my estate real or personal after the say agreement with  Francis Powell be full perform be give to his son Gilbert Knowler and his heir  all the rest and residue of the say message land c and make the defendant  doctor Knowler and Gilbert Bouchery his nephew executor to this his codicil  doctor Knowler who be privy to the whole transaction between his late brother  and Mr Powell with regard to the proposal for recover of the estate of sir  Thomas Coleby and a witness likewise to the article of agreement that be  execute in pursuance of this proposal and who have also have they in his  custody ever since refuse to comply to Mr powell demand upon his application  to he soon after the death of the late Mr Gilbert Knowler the bill therefore  be bring by Mr Powell against doctor Knowler executor of the late Gilbert  Knowler for a specific performance of the article case cite for the plaintiff  Bickley versus Newland p wms Wyatt versus slater before Lord chancellor Talbot  case cite for the defendant pool versus sacheverell p wms walker versus  Gascoigne hear in dom proc Walmsley versus booth may ante S c proof versus  Hines July Cas in Chan in Lord Talbot time master of the roll I shall give  such a opinion as be agreeable to the notion which I ha e of the case at  present but so as not to tie myself down if I shall see any reason for vary my  opinion and as it appear to I at first sight the plaintiff be very proper in  bring a bill for a specific performance of this agreement and nothing more  usual in this court than bill of such a nature but whether he be entitle to  the relief that he pray be another consideration and that will depend upon two  question first whether the court will relieve the plaintiff single on the  agreement exclusive of the codicil second if the agreement shall not be good  in equity whether the plaintiff be entitle to relief upon the foot of the  codicil atkins er p with regard to the first question though at the set out of  the agreement it be frame in the nature of a wager yet take the whole article  together it seem to I to be a agreement only for a part of the estate to be  recover upon the event take place f Mr Gilbert Knowlers recover and be in  possession of the whole or part of sir Thomas Colebys estate amount to pound  in value or upward atkins I be far from think the person who draw these  article frame they in this manner out of ignorance but on the contrary  contrive it arIfully to keep they out of the statute of champerty for though  by way of wager in the outset yet in the latter part it be plain part of the  land be intend to go in satisfaction of the agreement and the mention in the  beginning of the article be only intend as a security for the performance of  the agreement but without enter any further into this part of the case I will  very ready own if it stand only upon the agreement that the plaintiff can  notbe entitle t oh have a specific performance in this court but must have be  leave to his remedy at law I shall have have a much better opinion of the  plaintiff if he have not tie himself down by bind in the penalty of pound to  gather evidence in support of Mr Knowlers title second whether if the  agreement be not good in equity the plaintiff be not entitle to relief upon  the foot of the codicil and as I be at present advice I do think he be entitle  to relief under this head the counsel for the defendant aware of the strength  of this will as to the real intention of the testator to establish the  agreement have endeavour to put a force construction upon the word that the  testator do not intend absolute to confirm and make good the agreement but  have direct only in what manner he will have it do provide the law shall think  it such a agreement as ought to be carry into execution but to I it seem  extreme clear from the word of the codicil that it be the testator intention  the agreement shall be establish and that he have express himself very full  for that purpose and that he confirm the agreement in the first place and then  direct the manner how it shall be carry into execution the case of Wyatt  versus slater come the near to the present case upon the whole the article of  agreement be of no further use than to serveonly as a explanation of the  testator intention and by way of direction for carry that intention into  execution the last consideration be what decree I shall make atkins I do not  think the plaintiff be entitle to payment upon the value of the estate recover  with the addition of arrear of rend and profit for to be sure a agreement of  this kind ought to be take as strict and strong as possible against the  plaintiff and therefore I shall only decree he a moiety of the estate recover  exclusive of the arrear of rend the next question be when I shall decree the  plaintiff to be entitle to this moiety and I be clear of opinion that the time  ought to be compute from the date of the perpetual injunction and not so far  back as the decree for possession for Mr Gilbert Knowler till the injunction  can not be say to be in quiet possession which be the express term of the  agreement therefore let the conveyance be prepare accord No cost be give as to  the suit of either side Reg lib b fol a moiety of the rend and profit be  decree from the perpetual injunction