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[243] which report, order, and decree, appellants alleged were made ex parte, without hearing appellants, and that they had therefore frequently applied to the Court to have the cause re-heard upon the said report, and though they had paid the respondents 30l. more, could not obtain a re-hearing, unless upon the terms of paying the whole 475l. decreed, and that appellants were then in prison for not performing the decree, which they insisted ought to be reversed; because appellants ought not to have been decreed to account with respondents for the profits of testator's estate, but with his creditors; neither ought they to have been decreed to pay the 50l. until it had appeared that they had assets in their hands; and because there were upwards of 1500l. debts and incumbrances not taken notice of by the report, orders or decrees; and because the profits of testator's estate, found to be in appellants hands, were decreed to be paid towards satisfaction of respondents legacies, and not for discharge of testator's debts and incumbrances, in the first place, as they ought to have been; and because appellants were decreed to pay the growing yearly legacies of 20l. and 30l. to respondents, out of the profits of Branton, which appellants insisted ought first to be applied to discharge the incumbrances, and testator's just debts; and finally, because appellants were charged with the profits of the Holly Island for nine years and a half, amounting to 760l. as part of testator's personal estate in their hands, liable to satisfy respondents demands; whereas Holly Island was a specific legacy given to Colonel Collingwood's son, and belonged to him, and respondents demands, and the testator's debts, were by express words charged upon the manor of Branton, which was reported sufficient to pay all; and that therefore the island, or the proceeds thereof, ought not to be so applied.

The respondents on their part shewed, that George Collingwood, (intending a provision for respondents, and to keep them from starving,) by his will gave the respondent Mary, the mother, an annuity of 20l. for her life, and to the other respondent 30l. per annum, until her age of twenty-one years, and therewith charged all his estate, of great value, and which had come to appellant Margaret, his sister; and that respondents could not after testator's death get one penny of their [244] annuities, and were reduced to great necessities, and forced to lie upon the bare boards: And, in Hillary, 1694, brought there bill as paupers in the Exchequer, against appellants, and that appellants so delayed the cause, that it was six years before it could be heard, and in all this time, respondents obtained only 50l. upon security by order of the Court; and that an account was decreed to be taken of what was due to respondents for arrears, and that same should be paid out of Mr. Collingwood's estate, which was all declared subject and liable thereto; and that appellants declining to attend the accounts, the Court ordered the officer to proceed ex parte, unless appellants attended in a week; and that appellants then obtained a commission to examine returnable next term, when both sides attended several days, and the account was taken, and the officer reported as stated by appellants, and the cause standing to be heard upon the report, appellants desired to put it off, till Michaelmas term, which was ordered, on payment of 50l. in part of the arrears, but that no money was paid; and that the cause was hoard 27th October, 1701, and the 425l. decreed to be paid, unless cause in a fortnight, and then the decree was made absolute; and appellants not paying the money, attachments, proclamations and commissions of rebellion were successively awarded against them: And that appellants, 23d January following, moved for a rehearing; and the officer was ordered to state the proceedings; which he did: And appellants, 18th May, 1702, moved for a further hearing, and, by consent, appellants were to pay 105l. and bring 100l. into Court by the next term, and then to have liberty to except to the report; notwithstanding which no money was paid or brought into Court; but appellants, 21st May, moved for a commission to examine witnesses to prove a pretended debt, which was granted on paying 20l. down, in part of the 105l. but that no money was paid; but appellants had now brought the present appeal for further delay and difficulties to respondents, who were paupers in fact, and in form, and therefore insisted that this appeal ought to be dismissed with exemplary costs. (Samuel Dodd.)

Die Sabbati, 19 Decembris, 1702. After hearing council on this appeal, it was adjudged by the lords that the same should be dismissed, and the decree,