Page:The English Reports v1 1900.pdf/335

executor, who exhibited his bill of revivor, and that all proceedings were by an order ex parte, 9th March, revived; and that it was farther decreed, appellants should pay respondent what the master should report due for principal, interest, and costs: And appellants complained that the decree had been inrolled, being but thirteen days after this ex parte order pronounced without notice to appellants; and that, 3d of July [346] following, Sir John Hoskins made a report ex parte, and certified the principal and interest to be 68l. and taxed costs 64l. 10s. 9d. all which the Master, without directions or authority, appointed to be paid on 5th September then next; and that on 5th July the report was confirmed, unless cause in eight days; and that appellants had filed exceptions to the said report, to stay proceedings till they could exhibit their bill of review, which they soon after did; and assigned for errors that they were decreed to pay Hubbuck's debt, with interest and costs, not de bonis intestati but general, whereby they were subjected to pay out of their own estates; and that costs were awarded against appellants, who being but administrators, were not liable to costs, they having neither broken their trust, nor made any unnecessary adversary defence in the cause; but that a plea and demurrer having nevertheless been allowed to their bill of review, not upon the meer right, but upon the strictness of the forms of proceedings in Chancery, they now appealed, and insisted that the decree ought to be reversed; and the rather, for that respondent, Robert Vigures, was either dead (pendente lite) or absconded, so that he was not to be found or heard of, and that these vexatious proceedings had been carried on in his name by others without any legal authority. (Jo. Collins.)

The respondent stated, that his testator exhibited his bill against appellants and Hester; and that appellants answered, and the cause was heard as shewed by appellants; and that in regard appellants had not proved any debt due to them from their intestate Hubbuck, nor any of the payments mentioned in their schedule, whereby they charged themselves with the receipt of so great a part of the intestate's estate, it was decreed as stated by appellants; which decree respondent insisted ought to be affirmed, because the appellants had made no manner of proofs of any payments by them, or debts due to them or others from their intestate; and therefore no ground for the Chancery to direct an account of assets of the intestate's estate, when appellants had confessed so much come to their hands, and not proved any payments, nor shewn any colour to retain appellant Oades's pretended debt, or any other, and that costs justly followed such a decree even against an administrator. (R. Thornhill.)

Die Lunæ, 13 Martii, 1703. After hearing council on this appeal, the same was adjudged to be dismissed, and the decree complained of affirmed. Lords Journ. vol. xvii. p. 408.

The appellants made this case: That in contemplation of a marriage between Simon Eaton, Junior, and Mary Aldworth, appellant Martha's father and mother, by articles dated 6th March, 1672, Sir Richard Aldworth, father of Mary, agreed to pay Sir Simon Eaton, father of said Simon, 2000l. on the day the marriage should be consummated, which was to be in May, 1678, and 1010l. more on several contingencies therein mentioned, and to settle all his real estate, being about 1000l. per ann. more on the said Mary in tail, in default of other issue of his body; and Sir Simon agreed to settle a jointure on Mary of 400l. per ann. and the inheritance thereof on her if she survived her husband without issue by him; and also to settle 400l. per ann. more on his said son for his and his wife's maintenance during Sir Simon's life; and afterwards all his real estate on him and his heirs for ever: And further agreed (at his death) to leave and bequeath all his personal estate to his said son and his issue by Mary, provided he and his said wife should give no just cause to the contrary, by any gross, obstinate or habitual undutiful-