case arthur squire appellant dame rakehell pershall widow respondent that  February Mews dig way a as a creditor of b bring his bill against the proper  party for a sale of b s estate allege that he have by his will charge it with  the payment of his debt on the trial of a ejectment a verdict be find against  the will and thereupon a s bill be dismiss with cost but on a appeal this  decree so far as it relate to cost be reverse John Metcalfe Esq have one son  John and two daughter namely the respondent and Isabel and be seize in fee of  a estate at Leeds in the county of York make his will in September and thereby  devise all his estate both real and personal either in possession or reversion  to Eleanor his wife to dispose of at her will and pleasure out of which she be  to give portion to his son John and to his young daughter Isabel as she think  fit and convenient and make his say wife sole executrix and soon after die the  say Eleanor his widow enter on the estate and quiet hold and enjoy the same  several year and in John the son die under age and unmarried by indenture of  lease and release date the saint and d of January Eleanor the widow for the  consideration therein mention convey all the say premise to John bright Esq  and his heir who she soon after marry Isabel the young daughter afterward levy  a fine of the premise to the say John bright and by a deed date the that of  November declare the use of the say fine to the say John bright and his heir  and he hold and enjoy all the say premise during his life in February John  bright make his will and thereby give one moiety of the say estate to his say  wife Eleanor and her heir and the other moiety to the say Isabel then the  widow of Abel Durden during her life and after her death to her two daughter  Eleanor and Isabel Durden and to the heir of their body Eleanor enjoy a moiety  of the premise under the will of her husband bright and soon after his death  she marry one brook who live but a short time she on the that of February  marry baldwin higgons but the very day before videlicet the that of February  without the privity of Mr higgons she convey her moiety of the say premise to  trustee reserve a power to herself to dispose thereof without the consent of  any brown husband she shall afterward marry and accord by lease and release  date the that and that of October she by the name of Eleanor brook widow  convey the same to trustee and their heir upon the several trust therein  mention baldwin higgons know nothing of the deed of and he and his wife  Eleanor levy a fine of the say moiety and by deed date in November declare the  use of the say fine to the say Eleanor during her life and after her death to  the say baldwin during his life and to other use therein specify in which deed  Eleanor reserve a power to herself by any write under her hand and seal to  revoke the say use and declare any other use and by her will under her hand  and seal date in January she do revoke those use and devise her moiety of the  say estate to one mary Cox and her heir who by write under her hand and seal  date the saint of January declare her name be use in the say will in trust for  the say baldwin higgons and his heir and covenant that higgons and his heir  shall enjoy the say estate in January Eleanor higgons die and soon after her  death banister the survive trustee in the deed of October enter upon the say  moiety and brown er p receive the rend and profit thereof for several year and  keep the same from the say baldwin higgons and the other moiety be all along  from the death of John bright and under his will receive by Isabel Durden  during her life and after her death by John Whilton and Thomas Harrington who  marry her say two daughter in Hilary term baldwin higgons bring a bill in  chancery against the say banister Whilton and Harrington to set aside the deed  of trust make to banister and that higgons may have his moiety of the say  estate and a account of the rend receive since his wife death and upon hear  that cause on the that of February the court declare there be a fraud apparent  in the say deed and decree that banister shall convey the say moiety to  higgons accord to the use of the deed and fine in and that banister shall  account before a master for what rend he have receive for the say moiety since  the death of Eleanor and pay the same to higgons and in consequence of this  decree the master by his report date the that of February certify that there  be due from banister for rend receive by he out of the say moiety pound which  the master direct he to pay to higgons banister accord pay he pound and be to  pay he the rest at such future day as be agree upon between they in November  the respondent exhibit her bill in chancery against the say baldwin higgons  and sir Thomas Pershall her husband and thereby claim one moiety of the say  John Metcalfes estate as one of his daughter and coheir suggest that her say  father be non compos chin at the time of his death and so not capable of make  any will and flat Eleanor Metcalfe her mother have no right to the estate or  any power to convey the same to bright and higgons and therefore pray that the  brown say deed make by her mother under which higgons claim a moiety of the  say estate may be set aside to this bill higgons put in his answer and thereby  insist on his title to the say moiety and on his say decree for the same and  soon after die in possession before anything more be do in that cause but be  indebt to the appellant on a judgement for pound and in other debt amount to  pound more as appear by a account state under his hand he in April assign to  the appellant pound part of the money due from banister and direct banister to  pay the same towards satisfaction of the say judgement debt in may higgons  make his will and thereby devise the say premise to Arthur lake and George  take and their heir in trust to be sell for payment of his debt and legacy and  appoint they executor but lake and take refuse to prove the will or act in the  trust and thereupon one Catherine Farnham widow a residuary legatee take out  letter of administration to higgons with his will annex in Michaelmas term the  appellant exhibit his bill in chancery against the say Arthur lake and George  take the trustee the say Catherine Farnham lady Pershall and George banister  and other pray to have the estate sell pursuant to the say baldwin higgons  will for payment of his debt and legacy and that the appellant may be pay his  debt when the estate be sell and may have the money remain in banister hand  pay to he in part of his say debt in easter term the respondent bring her bill  of revivor and supplement against the say Catherine Farnham Arthur lake George  take the appellant and other state the will of the say John Metcalfe her  father and insist that he be non compos chin at the time of make the same and  in this bill as well as in her answer to the appellant bill she insist that  the say will be a forge will and by higgons and one ware and therefore pray  that the defendant may set forth what title they have to the moiety of the say  estate of which higgons die in possession the appellant by his answer to this  bill disclaim any other title to the say moiety but only as a creditor of  higgons and pray that the same may be sell and his debt pay pursuant to the  will both these cause be at issue and witness examine they be hear on the that  of January before the Lord chancellor Macclesfield when it be order and decree  that the respondent shall proceed to a trial at law at the next York assize in  a ejectment to which the appellant be to appear and plead to issue and to  admit that John Metcalfe die seize in fee and that the respondent be one of  his coheir and entitle to a moiety of the estate not dispose of by deed or  will brown er p and the defendant banister be order to pay the respondent  pound and to the appellant pound out of the rend and profit of the estate in  his hand in order to enable they to proceed to such trial brown the appellant  be advice it be necessary for he to prove the say John Metcalfes will at the  trial and the original will be by order bring into court he on the saint of  July move the court that the say will may be deliver to he to the end he may  show the same to some person who be likely to know the handwriting of the  witness thereto they be all dead but it be then order that the will shall be  deliver to such person as the respondent shall think proper to be entrust with  it to be nominate by her in two day and to remain in his hand in order to be  show to such person as the appellant shall desire but the appellant for want  of have the will deliver to he in order to be carry down into Staffordshire to  show to some person there who be acquaint with sir Thomas Pershalls  handwriting he be a witness to the say will be not prepare with witness to go  down to the assize at York to prove the say sir Thomas Pershalls handwriting  and therefore on the that of July at least a week before the assize the  appellant give notice to the respondent agent and solicitor in write that he  can not appear at the assize to make any defence at the trial for want of have  Mr Metcalfes original will to show to some person who be acquaint with sir  Thomas Pershalls handwriting and accord the appellant do not go down to York  or make any defence at the trial so that the respondent obtain a verdict by  default on the that of December the cause be hear on the equity reserve when  it be decree that the lady Pershall shall have possession of the moiety of the  estate in question and that the receiver former appoint by order of the court  shall account before a master and pay to her all the rend in his hand and that  banister shall also account for and pay to the respondent all the rend in his  hand and he be to be allow the pound which he have pay lady Pershall and also  pound which in the decree be say to have be pay to the appellant pursuant to  the order make on the former hear and the appellant be to pay S cost to lady  Pershall which she be order to pay to banister and a perpetual injunction be  order to quiet the respondent in possession and the appellant have receive the  say pound in order to make his defence at the trial he be order to pay the  same to the respondent and it be further order that the appellant cross bill  as to the respondent shall stand dismiss with cost to be tax and that the  appellant shall pay the respondent the cost of the suit wherein she be  plaintiff to be tax by the master and that all the deed and write belong to  the say moiety shall be bring before the master and that the will of Mr  Metcalfe shall be leave with the register subject to the further order of the  court from both these decree of the that of January and that of December and  also from the order of the saint of July the appellant appeal insist I will W  fortescue that Metcalfes will have be read at the first hear of the cause  ought to have brown be admit as a good will at least as to the appellant  demand after above forty year quiet possession under it and that after so long  a enjoyment and when all the witness to the will be dead the appellant who  have no other claim upon the estate but as a good fide creditor for money  actual advance to higgons who be himself above twenty year in quiet possession  of the premise ought not to have be decree to go to a trial upon the validity  of this will and more especial since sir Thomas Pershall the respondent own  husband be one of the witness thereto that if the trial have be proper direct  yet the original will which the appellant be to support at such trial and  under which he be to make his defence ought to have be deliver to he and not  to such person as the respondent shall name she claim the premise in question  as one of the coheir at law of her father the testator and though this order  for the delivery of the will be the reason why the appellant can not defend  himself at the trial yet the verdict then obtain by default be apprehend to be  the only foundation for decree a perpetual injunction against he and have  since be attend with this further bad consequence that the will be now pretend  by the respondent to be lose though by the decree it be express order to be  leave with the register of the court of chancery but which have never be do  that the appellant ought brown er p to have retain the money pay he by  banister in part of what be order he by the court of chancery and what other  sum he have before receive of banister and likewise to have have the money  remain in banister hand at the time of higgons death or at least so much as  will make up the pound assign to he by higgons in part of his debt and if  there be not sufficient for that purpose the respondent ought to have pay the  appellant the pound which she receive of banister that even if the respondent  have make out a good title to the premise in question yet she ought not under  the circumstance of this case to have have a account of the rend and profit  for any long time than from the fill of her bill in but the rend and profit  receive by higgons prior to that time or by any other person for his use and  benefit ought to have be apply towards satisfaction of his just debt that  consider the whole circumstance of the case and that the appellant be a good  fide creditor that there have be above forty year possession under Metcalfes  will that there be but one verdict in favour of the respondent and even that  obtain by default in the manner before mention it be apprehend to be exceed  hard to decree a perpetual injunction to quiet the respondent in the  possession of the premise and not leave the appellant to pursue his remedy  against her at law as he can for the recovery of his just debt but in all  event his bill ought not to have be dismiss with cost nor ought he to have be  decree to pay the respondent the cost of the cause wherein she be the  plaintiff and therefore it be hope that the say several decree and order will  be reverse brown on the other side it be contend c Talbot W Hamilton that the  will never have be prove and the witness examine in the cause have convince  prove Metcalfes insanity at the time of the pretend execution of this will the  court very just refuse to intrust the original will which labour under such  manifest objection with the appellant in order to prevent any ill use which  may have be make of it but direct it to be put into the hand of a person  nominate by the respondent and by he to be show to such person as the  appellant shall desire that the appellant have accord a opportunity of see the  will and he also bring several person to look at it particular the son of  William ware one of the pretend witness and if ware real be a witness there  can be no great difficulty for the son to prove the father handwriting nor can  it be suppose difficult to prove the handwriting of sir Thomas Pershall the  other pretend witness he be a person very well know in the world and the  appellant have actual pound pay to he for carry down two witness who he allege  he have in town to prove sir Thomas Pershalls hand that if it have be  necessary to carry the will into Staffordshire freeman in who hand it be offer  to go there with it for so small a sum as five guinea and if he have in any  manner misbehave himself the appellant may and probable will have apply to the  court when proper direction will doubtless have be thereupon give that this  will be never prove either in the spiritual court or in the court of chancery  but Eleanor the pretend devisee and executrix thereof have renounce  administration be grant to William ware one of the pretend witness to the will  who upon that occasion must have swear that he believe the decease die  intestate that the appellant make no attempt to prove the will or examine any  witness thereto before the cause be hear and though he be indulge with a  opportunity of make proof thereof at the trial yet he do not think fit so to  do or even to make any defence not to move for a new trial when the cause be  hear upon the equity reserve but by his acquiescence under the last decree  have induce the respondent rely upon the justice thereof to sell the estate  for a valuable consideration and therefore it be hope that the decree and  order will be affirm and the appeal dismiss with cost after hear counsel on  this appeal it be order and adjudge that the order or decree therein complain  of of the that of January and the saint of July shall be affirm and it be  further order and adjudge that so much of the decree of the that of December  as direct cost in equity to be pay by the appellant in either of the two cause  shall be reverse but that the same decree in all other respect shall be affirm  and it be further order that what of the say cost in equity the appellant may  have already pay shall be repay to he by the respondent jour vol p brown er p