The CASE upon the Appeal.

THE Plaintiff Mrs. Took by her Bill in Chancery,* sets forth a Title to Iohn Bennet, Esq (as her Trustee) to a Lease for Lives in Nineteen Houses in Castle-Yard in Holbourn, in Trust to pay her 200 l. per Ann. clear above all Charges and Payments, for her Life, as a Separate Mainte∣nance while her Husband Lives. This was by a Deed made by her Husband, Mr. Took, in April 1686.

And by the same Deed she claims further 300 l. per Ann. clear in like manner for her Jointure, if she outlive her Husband.

Sir Robert (the Defendant) Lent 820 l. to the Husband,* Mr. Took, to help him out of Prison, and to pay his Debts; and took a Mortgage of him of the same Houses, Three years after Mrs. Took's Deed, viz. in May 1689. So that Mrs. Took's Separate Maintenance is first in time (if it be not fraudulent).

The Chancery upon hearing of the Cause Trinity Term,* 1694. hath Decreed the Separate Maintenance to be good in Law against Sir Robert's Mortgage; and hath granted a perpetual Injunction to stay the Trial at the Common Law, upon an issue, whether Mr. Ben∣net's Estate be Fraudulent or not. Which Issue was join'd before Mrs. Took's Bill was Exhibited: But the Chancery will not suffer it to be Tried at Law, though it be matter of Fact.

The ground and pretence for Equity against Sir Robert,* is, That Sir Robert had Notice of this Trust of a Separate Maintenance be∣fore he took his Mortgage.

Answ. Sir Robert claims not under the Estate in Trust, nor by, nor under Mr. Bennet the Trustee; and therefore no Bill nor Equity lies for it against him: And therefore his Notice of the Trust (which he admits he had) is not Material.

That which, probably, misleads the Chancery, (as Sir Robert sup∣poses,) is the common Case in our Law-Books of an Use, (which was the same thing as a Trust now is).

Viz. If a Feoffee to an Use (before the Stat. of 27. of H. 8. for transferring the Possession to the Use) had Enfeoffe'd I. S. of the Page  4 Land, although for a Valuable Consideration; yet if I. S. had Notice of the Use, he shall be Subject to the Use, although he were a Purchaser, and a Subpoena lies against him by Cestuy que Use, (the Party for whom the Use was); the true reason is, because I. S. in this Case claims in privity of the Estate, and derives under the first Feoffee himself, and comes into the Estate in the (per) as the Law distinguishes, and terms it, and not in the (post) as Sir Robert does.

And so are the Books,* viz. 7. H. 7. Fitzh. Abr. tit. Sub poena, plac. 18. and 5 E. 4. ib. placit. 2. & 5. and Dame Burgh's Case Moor's Rep. 602.

And in this Case if I. S. were not a Purchaser, and paid no va∣luable Consideration, it is all one whether he had Notice or not; and if he paid a Consideration, yet if he had Notice before-hand, he shall be subject to the Use, and liable to a Subpoena in Chancery at the Suit of Cestuy que Use.

But Note, The true reason and distinction in this Case is, I. S. comes in under the first Feoffee himself, and under that Feoffee's Estate; so that there is a privity of Estate between them, which is termed (coming in the Per).

It has been Resolv'd by a Chancellor and all the Judges, That the Heir of such a second Feoffee is not liable to a Subpoena by Cestuy que Use (but they must seek to the Parliament) though he be (in the* Per) and under a Privity of Estate. 8 E. 4. Fitz. Subp. plac. 8. and 22. E. 4. 6. Bro. Abr. tit. Conscience, plac. 23.

But all the Books are, That no Subpoena in Chancery lies against a Stranger, that is, who is not privy, nor comes not under the very Estate, out of which the Use issues, or the Trust arises, (which is all one) for a† Stranger is he that comes not in the (per) but in the (post) and this is very Case of the Appellant Sir Robert Atkyns; he Claims not from, nor under Mr. Bennet; and in such Case Notice is not material.

Where a Man is a meer Wrong-doer, as a Trespasser, or Disseisor, and who hath Notice too before-hand of an Use or Trust, even in such Case the Cestuy que Use, or Cestuy que Trust, (as Mrs. Took in this Case is,) cannot maintain a Subpoena, nor hath any Remedy in Chan∣cery against such Trespasser, or Disseisor; but must take his Remedy by Sub-poena against her own Feoffee, or Trustee, (if there be Cause,) to Compel him to enter again upon such a Disseisor,* or to bring an Action against such a Trespasser. So is 11 E. 4. 8. Bro. Conscience 17. at the end of that placitum, and ib. placit. 17.

Sir Moile Finche's Case in Chancery referr'd by Queen Elizabeth to all the Judges of England, after hearing Councel on both Parts on se∣veral days, and after Conference between the Judges themselves; it was Resolv'd, That a Disseisor is subject to no Trust, nor was a Subpoena maintainable against him: Not only because a Disseisor Page  5 was in the (post) but because the right of Freehold and Inheritance was determinable at the Common Law, and not in† Chancery; neither had Cestuy que Use (while he was in being) any Remedy in such Case.

If no Subpoena will lie against a Disseisor, (i. e. a wrong-doer,) much less against a Purchaser, who comes in by a Legal Conveyance, with∣out any Privity of Estate, as Sir Robert Atkyns doth.

But, which is yet much stronger than all those Cases before-cited, there is not only a want of Privity in this present Case of Sir Robert's, (which is a sufficient reason why no Subpoena, nor remedy in Equity •ies against him by Mrs. Took, the Cestuy que Trust): But he pleaded to her Bill in Chancery, and insisted upon it at the hearing, That he is a Purchaser upon a Valuable Consideration, and that the Estate for Life made by the Husband, Thomas Took, to Mr. Bennet in Trust for a Separate Maintenance for the Wife, is Fraudulent, and there∣fore void by the Stat.* 27 Eliz. cap. 4. and that this ought to be tried by a Jury, and determined at the Common Law.

And that by their Distreining the Tenant for his Rent,* who sued a Replevin, they themselves had put the matter into a right course at Common Law, where a matter of Fact, (Fraudulent, or not Fraudulent,) ought to be tried by a Jury, and not by Witnesses in Chancery, and a Fraudulent Conveyance being made void by the Statute before mentioned: the Exposition of Statutes belongs to the Judges of the Common Law,* and not to a Court of Equity; and especially there being Estates of Freehold and Inheritance on both sides concern'd in this Case, which is examinable and de∣terminable by the Courts of the Common Law, and the Rules of Law, and not in Equity by Witnesses: And they themselves had join'd Issue upon the Fraud,* and a Jury return'd to try it before they Exhibited their Bill in Chancery. And Notice of the Trust before he took the Mortgage, being also confess'd by Sir Robert in his Answer, (if it be at all material,) it is so upon the trial of the Issue, to prove their Deed not Fraudu∣lent; so that she might take the benefit and advantage of that upon the Trial at Law, if it be material.

Note, Sir Robert hath no way to overthrow their Deed and Title but by making it out to be Fraudulent: If it be not Fraudulent, they are safe, for their Deed is prior in time to Sir Robert's Deed by Three years; so that they had no need, if it were not Fraudulent, to re∣sort to Equity: If it be a Fraudulent Deed, Will a Court of Equity support it? Which should rather relieve a Purchaser against frauds; especially in the Case of such an upstart, and mischievous, and late invention, as a Separate Maintenance is, granted by the Husband, Thomas Took, about Ten Years after Marriage, (there being no pre∣ceding Agreement before Marriage for it;) and being in Considera∣tion only of her joyning with her Husband in a Fine for the Sale of Page  6 some other Houses, wherein she was also Entituled by the Marriage to her Thirds, and this being done in the year 1686. Whereas,

1st. She had before (in the year 1684) levied a Fine with her Husband to enable him to Mortgage, and Borrow Money to pay his Debts, and then 100 l. per An. Separate Maintenance was settled on her, which was large enough, considering his mean Estate; and she parted with no Thirds in 1686; (so the Consideration was but feigned in 1686. when the 200 l. per Ann. was Settled).

2dly. The Husband in 1686. was much more Indebted than in 1684. and yet the Separate Maintenance must then be doubled, viz. from 100 l. to 200 l. per An. clear, and many of those Debts re∣main unpaid to this day, as is prov'd in this Case.

3dly. The only consideration for the Separate Maintenance of 200 l. per Ann. clear in the Deed of 1686. being her then joyn∣ing in a Fine, and barring of her Thirds; (all which was done be∣fore in 1684.); but by this Deed of 1686. She has 300 l. per Ann. besides, clear above all Payments settled upon her for her Jointure, in Lieu of her Thirds (if she survive;) which is far greater in pro∣portion too, than the whole Estate would have born, had she been left to her Thirds.* And this is a more suitable Recompence too for her Thirds, being in case she survive, (as the Thirds would have been,) but she must hook in a Separate Maintenance too in the mean time, while the Husband is alive.

And there is nothing else left to maintain him, nor to pay his Debts, but he was forced to take up Money of Sir Robert to pay off some of his Debts, and to fit him for an Employment in the Army; for which Money so borrowed, Mr. Took Mortgag'd these Houses to Sir Robert Six years ago; and not a Penny, Principal or Interest paid in Six years time, nor like to be (if this Decree stand) while Mrs. Took lives, who is about 34 years old.

4thly. A Separate Maintenance is the same thing with Alimony. Now in the Exchequer Chamber,* 15 Car. 2. in the Case of Manby against Scot, the then Chief Justice Bridgman, and the rest of the Judges there, were of Opinion, That by Law the Wife shall be maintain'd according to the present Estate, and not only according to the Degree of the Husband. See Siderfin's Reports, Fol. 128. But this Separate Maintenance, and Alimony of 200 l. per Ann. clear of all Payments, swallows up all the Husband's Estate; none is left.

There are many other Badges of Fraud, which Sir Robert reserved to be made out upon the Trial before the Jury, but held them not proper at the Hearing; so that the Opinion of that Court for Allowing and Confirming the Separate Maintenance, was a surprize upon Sir▪ Robert.

Sir Robert at the Hearing mov'd the Lord Keeper that he would hear the Opinion of some of the Judges, in the Case concerning the Page  7 Jurisdiction of Courts of Law and a Court of Equity) but it would not be granted.

Yet it appears by the Cases before-cited, (and many more in the Books,) That in Cases of Uses, the Chancellor was heretofore used to Adjourn such Cases into the Exchequer-Chamber, and to go thi∣ther himself, and to have the Cases there debated by all the Judges; which kept a good Correspondence among the Courts, and kept Equity within some bounds. See the before-cited Case of 8 E. 4. Fitz. Abr. Tit. Subpoena Plac. 8. and much of that Title, to the same purpose.

It may be Observ'd out of all that hath been said, That the pre∣sent Decree incroaches upon the Common-Law, in several main points.

1st. In Examining and Determining a Matter of Fact (whether a Conveyance be Fraudulent or not Fraudulent) by Witnesses, which ought to be Tried by a Jury of Twelve Men. And this is done by the Chancery too, after an Issue join'd at Law, upon that very point, before any Bill Exhibited: And Sir Robert at last must pay the whole Charge of both, near 200 l. Costs, besides his own Char∣ges, and mighty trouble.

2dly. The Chancery by this Decree hath taken upon it to deter∣mine a Matter of Freehold, (which is in Question on both Sides, and claimed by both Parties,) which is not Determinable in a Court of Equity, but only at the Common-Law, and by Judges Sworn to judge according to Law, and not after the Rules of Equity.

3dly. By drawing in a Purchaser to answer to, and to be Sub∣ject to a Trust, to which he is neither Party nor Privy: Neither claiming under the Trustee, (Mr. Bennet,) nor under Mrs. Took, for whom the Trust is, contrary to all the Authorities in the Books both Ancient,* and Modern, in this very point, and against the Rules and Precedents in Chancery: A Trust now being the same thing with an Use, as it stood before the Statute of 27 H. 8. for Transferring the Possession to the Use. As fully appears by that Statute, wherein Use and Trust are often repeated as signifying the same.

4thly. By entertaining a Suit, and Decreeing in Equity, when there is a plain Remedy at Law,* (in the Name of the Trustee, Mr. Bennet.) For if Mr. Bennet's Estate be good in Law, (which ought to be determin'd at Law,) then the separate Maintenance must be good, and cannot, nor will not be contested: And Mr. Bennet's Deed and Title at Law is Prior in time to the Appellant Sir Robert's Mortgage: So that if it be not Fraudulent, it is not in the least danger.

1. It is supposed, that this is the first Precedent wherein a Court of Equity hath countenanc'd that new thing, (a separate Mainte∣nance, or Alimony,) and that against a Purchaser.

Page  8 2. And so large a separate Maintenance as 200. per An. clear above all Payments, out of so small an Estate as her Husbands is.

3. And which was Granted by the Husband Ten years after their Marriage, and not in performance of any Marriage-Agreement.

4. And the Husband being,▪ at the time of Granting of it, greatly Indebted, many of which Debts are unpaid to this Day: So that the Husband is driven from his Wife and Home by reason of his Debts; and the Husband hath nothing left him to live upon, but what his Wife secretly spares him, (as he has receiv'd several Sums since the Granting this separate Maintenance, as appears in proof,) which proves the Fraud.

5. The Husband having borrow'd the Appellant's Money to ena∣ble him to pay his Debts, and to set him at Liberty, and to procure and fit him for an Employment in the Army.

6. And where the Wife had a former separate Maintenance of 100l. per An.* Granted her about two Years before, upon her joining in a Fine, and barr'd her self of her Thirds, (if she Surviv'd), in Recompence of which Thirds too,* she hath by this very last Settlement 300l. per An. clear above all Payments for her Jointure, (if she Survive.)

And in this Case, the Purchaser (the Apellant Sir Robert Atkyns) hath not had one penny Principal or Interest, after Six years parting with his Money; which Money he is still willing to have repaid him, and to quit the benefit of the Purchase.

The Appellant,* Sir Robert, hath had so great tenderness and respect to the Respondent Mrs. Took,* (that claims this present Maintenance) as to gain to himself the Possession but of one House of nineteen Hou∣ses, which he hath gained too, not against her, nor her Trustee, but by his own Suit, and at his own charge, against one Collins, who de∣tain'd it from the Estate of Captain Took several years, and conceal'd it from them: So that it was given by them for lost, and not so much as look'd after by them, (tho it had some time paid them Rent;) they contenting themselves all the while with the other Eighteen Houses, and may (if they will be quiet) enjoy their eighteen Houses for the future. Which eighteen Houses (if well look'd after, and if the Rents of them were duly Collected) will be very sufficient to answer Mrs. Took her full separate Maintenance of 200. per An. during her Life, if Sir Robert might have the naming of the Collector, which is deny'd him by the Decree.

There are Two things more yet remaining in this present Case to be remembred.—1. The now Appellant Sir Robert Atkyns (then Defen∣dant) moved the Lord Keeper at the Hearing, That he might have Reparation against the Plaintiffs in that Bill, especially against the Plaintiff Bedford, a Clerk in Chancery, who needlesly thrust himself in to be a Plaintiff, and drew the Bill himself, as appears by the Bill Fol 34, 35, 36.) and also against the Plaintiff's Council, who sign'd the Bill, viz. Sir William Williams, Sergeant Bretland, and E. Otterborn, Page  9 for the Scandals cast upon the Appellant Sir Robert,* (who at that time was Chief Baron of the Exchequer, and an Assistant to the House of Lords.)

1. The Bill charges the then Defendant, (Sir Robert,) as acting against the Plaintiff, (Mrs. Took,) by his Greatness and Power. Fol. 44. and 46. (which Reflects upon him in Relation to his Judge's Office.)

2. And Fol. 54. and 55. That Sir Robert threatens to ruin the Plaintiff, (Mrs. Took,) in Law-Suits, unless she will comply with his unreasonable desires.

3. And Fol. 58. and 60. That Sir Robert carried on the Suit at Common-Law, in the Replevin, in the Name of Hook, contrary to Hook's desire.

All which are very false, and the Plaintiffs have not made the least proof of them; but the contrary of them appears by Hook's own∣ing the Suit by Replevin, Nor were they at all material to the Bill, which had been as sufficient without them.

By the Stat. of 8 Eliz. Cap. 2. Parag. 4. The penalty for Suing in another's Name without the consent of such Person, is six Months Imprisonment without Bail, and not then to be delivered out of Prison, till first paying treble Damages, and Costs, and Ten pounds penalty besides; yet the Court would have no regard to all this, but it must remain to Posterity upon the File.

It is usual in Chancery, (as it was also in the Star-Chamber,) and other Courts, to give Damages to the Defendant for the Scandals in the Bills, and there are Precedents of it.—But the Lord-Keeper held these no Scandals.

Sir Robert Appeals to the Lords herein, and prays he may have Reparation, as well against the Council that Sign'd the Bill, as against the Plaintiffs; and that the Bill may be taken off the File.

It may perhaps be offer'd by the Respondents, (Mrs. Took, &c.) upon the Hearing this Appeal before the Lords, That in the hearing of the Cause in Chancery, a Bill Exhibited by the Appellant, (Sir Robert,) in the Exchequer, against Mrs. Took, and her Husband, (Capt. Took,) and against her Trustee, (Mr. Bennet,) and against Hook, (the Tenant of the Rose-Tavern, &c.) was read; whereby it appear'd that Sir Robert in Effect then admitted of Mrs. Took's Sepa∣rate Maintenance, and Mr. Bennet's Estate, (in Trust for her,) as good, and claimed to himself only the overplus of the Rents, (if any) during her Life, and the Reversion of the whole after her Death.

In this Bill of Mrs. Took's in the Chancery,* whereupon the Decree now Appeal'd from, is made, there is not any Allegation, nor the least touch or mention of that Bill of Sir Robert's in the Exchequer, nor of the Matter of that Bill: For had it been alledg'd in Mrs. Took's Chancery-Bill, Sir Robert could have given it a full Answer, Page  10 and shewn how that Sir Robert at the Exhibiting of his Bill in the Ex∣chequer, had not so fully discovered the Fraud of the Separate Mainte∣nance, as he has done since, but believ'd; (as the Deed for the Sepa∣rate Maintenance, does alledge, see her Deed,) that the Rents were sufficient to answer her the 200l. per An. and that 160l. per. An. over, would have been left for Sir Robert, which by her proofs appear to be false, and the Rents short of making good her 200l. per An. as she alledges: See her Bill. A Court must proceed Secundum Allegata.

2dly. The reading that Bill of Sir Robert's in the Exchequer, and in∣deed all the proof offer'd at the hearing the Cause in Chancery, were ir∣regular, there being nothing in the Cause in the Chancery put in Issue by the Bill and answer. The only Equity of the Plaintiff, Mrs. Took's Bill, being a Trust of the Separate Maintenance, and Sir Robert's No∣tice of it; both which were confess'd by Sir Robert in his answer. He only insisted upon it both by his Plea and Answer, that their Deed was Fraudulent, which ought to be tried at the Common-Law; and that he being a Stranger, (neither Party nor Privy,) therefore the no∣tice was not material. Here was nothing remain'd that requir'd proof in Chancery; yet to increase the Charge, the Plaintiffs proceeded to proofs, which has given occasion to Sir Miles Cook, to load Sir Robert with near 200l. Cost; which, tho excepted too, is confirm'd by the Court.

3dly. Had the matter of Sir Robert's Bill in the Exchequer been the least hinted at, or stirr'd in Mrs. Took's Bill in Chancery, Sir Robert had been awakened by it, and forewarn'd to have answer'd to it, and made proof upon it, Viz.

That his Bill in the Exchequer was designed meerly to state the Debt owing to him by Mr. Took, and to compel him to a Redempti∣on of the Mortgage, or to be barr'd of his Redemption; and all Par∣ties, (as was propos'd to Sir Robert on the behalf of Mr. Took,) were inclin'd to get an Act of Parliament pass'd for the sale of Mr. Took's Estate; and to have the Debt due to Sir Robert upon the Mortgage, and the Debts to his other Creditors paid off, and a provision after∣wards made for Mrs. Took, which Sir Robert offer'd to further: So that it was not so seasonable nor proper at that time to question their Ti∣tle, nor to object Fraud against it. Nor was it proper for Sir Robert to Object or Controvert the Fraud of it in Equity, there being sufficient Remedy against it at the Common-Law; which Course too he after∣wards pursued; when he found they proceeded not in their Agree∣ment to get the Act of Parliament pass'd. And the Fraud more plainly appearing,

4thly. Sir Robert at the hearing of this Cause in Chancery, oppos'd the reading of his Exchequer-Bill in Evidence, as being no regular proof or evidence either in Law or Equity.* Bills in Equity being the Invention and Surmises of the Council that draw them; and the Suggestions and Allegations that are in them, are indeed but of the Nature of Interrogations to enforce a Discovery from the Defen∣dants, Page  11 but are no Conclusions, nor Estopples to the Parties that exhi∣bit them, nor evidence against them, who do not so much as Sign them themselves.

Nor shall Sir Robert's Bill in the Exchequer controll his Indenture of Mortgage, whereby the Fee-Simple of the Houses in Question is conveyed in possession to him, and not a Reversion only.

Nor shall it overthrow his Answer upon Oath in this Cause, where∣in he makes Title to the Houses in Possession, as being the Purchaser of them for a valuable consideration,* and being indeed forced to ac∣cept the Mortgage, (by Mr. Took's defrauding him of a former se∣curity, which Sir Robert had for his Money,) or else Sir Robert must have lost his money.

Now that Sir Robert's Exchequer-Bill ought not by the Rules of Law to have been allow'd for Evidence, no not in the Chancery, tho between the same Parties, appears by a printed Case, by the Reso∣lution of a Lord-Chancellor too, in the very like Case in the main; but the present Case on Sir Robert's part is much stronger than that too on his Side.

The Case is Mich. 14. E. 4. Fitzh. Abr. Tit. Subpoena plac. 15. One Tate was Sued in Chancery by a Bill in Equity, (as Sir Robert is,) and made to answer upon Oath at the Hearing, (just as was in this pre∣sent Case,) a Bill of Tate's, (then Defendant,) exhibited by him in the same Court too, and for the same matter, (and thereupon so much the stronger against Tate,) was offer'd to be read, which did contradict and differ from his answer: By the Chancellor, (by ad∣vice of the King's Sergeants,) Tate's Bill was not to be regarded, for he was Sworn to his Answer, but not to his Bill.

5. If Sir Robert's Exchequer-Bill had been Evidence, (as it is not,) yet it serves only to prove, that (in Sir Robert's opinion at that time when his bill was Exhibited,) Mrs. Took's Deed of Separate Mainte∣nance was not Fraudulent, or that he then had not discovered the Fraud.

This would then have been proper to have been offer'd upon the trial of the Issue at Common-Law, but is no Ground for a Decree: And Sir Robert may change his Opinion upon further Discovery of the Truth of the Case; for it is at most but his then apprehension of it, it alters not the truth of the Case, nor the matter of Fact in it: and he was seduced into that good opinion of Mrs. Took's title to her Separate Maintenance by Mrs. Took's own Deed, which did affirm the yearly value to be 360l. per An. which (had it been true,) would have been sufficient for both their turns; but in truth there has not been enough to pay the 200l. per An.

Separate Maintenances are but of late Invention, and bring many mischievous consequences after them: And not one Precedent of the Chancery, (as 'tis believ'd) can be produc'd, where ever, (before this Decree,) a Separate Maintenance hath been Countenanc'd against a Purchaser. Which Purchase to the Appellant, (Sir Robert Atkyns,) Page  12 never was made out of any greediness of profit,* but he was meerly driven to it, to accept it as a farther Security, after he had parted with his Money to the Husband, who had defrauded Sir Robert of a for∣mer Security, (as appears by the proofs.)

And either the Husband or the Wife, or any Friend of theirs on their behalf, may still redeem if they please, if it be done in some reasonable time, Sir Robert will be willing to accept of his money again.

Sir Robert hopes to be excus'd for using this Freedom with the Chan∣cery; It being generally known, that long before this present occasion, even while he himself Sate in a Court of Equity, (established by Act of Parliament,) he both in that Court, and in the Highest Court, (the House of Lords,) discharg'd his Conscience, by inveighing against the Encroachments of Courts of Equity.

To Conclude, The Apellant, (Sir Robert Atkyns,) humbly moves the Lords, to take up the same resolution in this present Case, (which appears in the Precedent and Example to be of highest con∣sequence,) as their Noble Ancestors and Predecessors did in the Twentieth Year of King Henry the IIId. when the Statute of Merton was made, Chap. 9th. The Lords being press'd by all the Bishops to make the Ancient Law of England to conform to the Constitution of the Church but in one point, Viz. That Children born before Ma∣trimony might be accounted Legitimate, and Inheritable to Lands. All the Earls and Barons with one Voice answered, That they would not change the Laws of the Realm, which hitherto have been Used and Ap∣proved.