Scope and Content
in case of (i) Elizabeth Humphreys, spinster, plaintiff and (ii) Henry Hall (executor of John Garthorne, clerk, deceased), Gilbert Burton, gentleman (devisee and trustee in the will of John Garthorne), John Downes, since deceased and Sarah, his wife (sister, heir at law and devisee in the will of John Garthorne and John Emmerson, clerk, defendants by original bill and bill of reviver:
Reciting:
The substance of the original bill was:
- that in May 1729 Elizabeth, wife of John Garthorne and Beatrice Ridges, both now dead, applied to (i) to borrow £200 proposing to execute a bond for repayment;
- (i) lent them £200 and “on account of a great opinion of their integrity on account of the long intimacy and friendship” between them did not consult anyone to see the bond properly prepared but left to to Elizabeth Garthorne and Beatrice Ridges
- they, having obtained a blank form, procured it to be completed “by some person unknown” and executed it to (i)’s use with the following condition: “if the above bounden Beatrix Ridges de parathia predicto and Elizabeth Garthorne their heirs, executors, administrators and assigns shall do well and duly pay or cause to be paid unto the above named Elizabeth Humphreys her executors, administrators and assigns the sum of two hundred pounds of good and lawful money of Great Britain with lawful interest of five pounds per cent for the same on the twenty third day of June in the year of Our Lord one thousand seven hundred and thirty without fraud or further delay then this obligation to be void and of none effect or else to be and remain in full force and virtue”
- Beatrice Ridges, at the time of entering into the bond, was seized of half share of lands in Great Barford and Renhold and elsewhere and copyhold land of the Manors of Walthamstow, Tony and Highhall [Essex] and Elizabeth Garthorne was seized of the other half share of her own separate use;
- Beatrice Ridges and Elizabeth Garthorne duly paid interest during the life of Beatrice Ridges and never disputed the validity of the bond;
- Beatrice Ridges died in September 1745 [sic] intestate and unmarried leaving Elizabeth Garthorne her sister and heir at law;
- after the death of Beatrice Ridges, Elizabeth Garthorne in a letter to (i) dated 6 March 1735 acquinted her with her death saying: “her estate, real and personal descends to me but notwithstanding it is liable to the payment of the bond. She had no debts nor demands besides yours madam; her copyhold lands which is personl estate which is deemed by law liable to the payment of debts, which lands both of hers and mine lies in Chappel End at Walthamstow in Essex in the manor of Sir Henry Maynard and in occupation of William Finchell who is a good and substantial tenant that pays his rent well. I write this madam for your present satisfaction. But at first opportunity of our meeting you shall have this security in the way you like best both from Mr Garthorne and my self and I assure you madam I thank God we are free from all debts, therefore madam I hope you may be very easy that yours is in very safe hands, our other estate lies in Great Barford four miles from St Peter’s in Bedford”;
- Elizabeth Garthorne made her will in May 1736 being empowered so to do by her husband and devised all estates to him, he paying (i) £200 upon delivery of a bond signed by Beatrice Ridges and the testatrix;
- Elizabeth Garthorne died and John Garthorne, her husband, survived her and proved her will and enjoyed her real estate;
- soon after his wife’s death John Garthorne wrote to (i)’s mother on 21 September 1736 acquainting her with his wife’s death and saying: “as she and my sister Beatrix were the only persons bound to you both their executors are liable to your debt and I am chargeable with it”;
- in another letter to (i)’s mother on 6 October 1736 he wrote: “The chief intent of my last was to give you (as a particular friend of my wife’s) the earliest notice of what had happened and that I might know what your intentions were with regard to my wife’s and sister’s bond. I find that letter came to hand by the kind answer Miss Humphreys was pleased to give me miss seems to think that my joining in the bond will be a sufficient security and if that be to yours and Miss’ satisfaction I will readily do it or satisfy in any other way that shall be most agreeable to you both, with regard to my wife’s estate a fine was passed after marriage by my wife and a deed of settlement was also made by which settlement the estate was to go to the longest liver of us two and to the heirs of such longest liver and by this settlement as well as by her last will provision is made for the payment of your money so great was her justice and so true her regard for your friendship”;
- at court on 1 May 1737 the homage presented that on 9 May 1736 John and Elizabeth Garthorne had surrendered all the lands etc of Elizabeth Garthorne to the use of her will, that Elizabeth garthorne was dead but had made her will devising the property to her husband he paying (i) £200 on delivery of a bond signed by Beatrix Ridges and Elizabeth Garthorne and John Garthorne was admitted, immediately surrendering to the use of his will;
- (ii) insisted that John Garthorne by his will devised all his real estate to Henry Hall and Gilbert Burton during the life of his sister Sarah, wife of John Downes, on trust to permit her to receive rents and profits for her own separate use and after her death he [John Garthorne] devised the real estate to the heirs of the body of Sarah Downes with remainder to his cousin John Garthorne (who died in the testator’s lifetime), “it is also pretended” that the testator gave his sister Sarah all his personal estate and appointed Henry Hall sole executor, which he proved;
- by virtue of the will of John Garthorne Henry Hall and Gilbert Burton had been admitted tenants to the copyhold land of Beatrix Ridges and Elizabeth Garthorne;
- that Beatrice Ridges, Elizabeth Garthorne and John Garthorne until their deaths paid interest to (i);
- Henry Hall paid interest to (i) on the bond until 24 June 1741 and (i) hoped he and Gilbert Burton would continue to do so and paid the principal but, with John and Sarah Downes and John Emmerson, who claimed a mortgage on the estates, “pretend there is some mistake or error in the bond and that the penal sum is omitted and a blank left in the obligatory part”;
- for discovery of (i)’s several claims on the estates of Beatrix Ridges and Elizabeth Garthorne she may be paid the £200 and all arrears of interest with her costs and that a sufficient part of the real estate be sold for the purpose and that (i) be at liberty to redeem John Emmerson in order to have a satisfaction for the money so due to her
John Downes died after he and Sarah answered the original bill and (i) exhibited her bill of reviver against Sarah Downes, widow and the proceedings stand revived
Counsel for (ii) alledged that John Downes and Sarah, his wife by their answer to the original bill believed Elizabeth Garthorne or Beatrice Ridges had not occasion to borrow £200 or any other sum and that about that time Elizabeth Garthorne informed John Downes “and the defendant Sarah believes it to be true” that she and her husband John Garthorne had a considerable sum of money “which lay dead in their hands” and desired John Downes to help them in placing some out for profit; she also believed Beatrice Ridges was “a weakly woman and in no way of business wherein to use and employ any such sum of money” and had been advised that the bond could not be for payment of the sum;
- the following were admitted by (ii): that Beatrice Ridges and Elizabeth Garthorne were entitled to copyhold property of the Manor of Walthamstow, Toney and High Hall; death of Beatrice Ridges and inheritance of Elizabeth Garthorne; death of Elizabeth Garthorne survived by her husband; will of John Garthorne;
- (ii) hoped “to make such objections to the said bond as they shall be advised aand admit that for the reasons aforementioned they have forbid the defendant Hall to pay the plaintiff the principal and interest due on the said bond or any part thereof”;
- Sarah Downes stated she and her late husband were “strangers” to the mortgage to John Emmerson “save that since Mr Garthorne’s death he has claimed and set up a mortgage thereon for eight hundred pounds and interest” and denied they were in possession of the personal estate of John Garthorne;
- Sarah Downes claimed to be sister and heir-at-law of John Garthorne and devisee for life under his will with remainder to the heirs of her own body and hoped her interest in the property would be protected;
- John Emmerson insists “he did actually lend and advance to and to the use of the said John Garthorne” the sum of £800 and that a demise of 28 December 1739 was made to him by Garthorne of 7 acres of meadow in Westmead; 10 acres of arable in Millfield; 10 acres of meadow with a cottage and a wood called Cuckow Wood containing 40 acres all in Great Barford and Renhold;
- John Emmerson also claimed a lease and release of 27 and 28 December 1739 from John Garthorne of Thirty Acres Piece adjoining Boseley Fields containing 31 acres, 3 roods, 2 perches “and several other lands and grounds particularly described and mentioned in Great Barford and Renhold;
- John Emmerson insisted there was no notice taken in any of the mortgages of (i)’s debt and he claimed no interest in any of John Garthorne’s estates except those comprised in the mortgages and there was now due to him £880 for principal and interest as of 29 June 1747 and he wanted payment of principal, interest and costs in this action and another in which Sarah Downes was plaintiff and John Emmerson and others defendants;
- Henry Hall and Gilbert Burton in their answer to the original bill admitted: seeing in the hands of Lloyd, (i)’s solicitor, the bond mentioned in the bill; that Beatrice Ridges and Elizabeth Garthorne were seized of real estate in Great Barford and Renhold as well as Walthamstow and that they paid interest during their lives; that Beatrice Ridges died intestate, her estate descended to Elizabeth Garthorne; Elizabeth Garthorne’s will; descent of her real estate to her husband on her death; his admission to her copyhold land and surrender of it to the use of his will; his will devising his real estate to Sarah Downes with remainder to the heirs of her body; also his bequest of his personal estate to Sarah Downes and his appointment of Henry Hall as sole executor; that John and Elizabeth Garthorne paid interest on the bond; that he had paid interest on the bond until 25 June 1741;
- Henry Hall and Gilbert Burton insisted that by order of 13 July 1742 in a cause depending on a cause in this court in which Sarah Downes was plaintiff and Henry hall, Gilbert Burton, John Downes and John Emmerson were defendants it was referred to Master Montague to appoint a receiver of the rents and profits of the estates who was to reimburse Henry Hall “what had been paid by him over and above what he had received to keep down the interest of the incumbrances on the premises and pay the residue of the said rents and profits to the said Sarah Downes” but believed no receiver had ever been appointed and that the rents were in arrear from making the order;
- Henry Hall and Gilbert Burton believed there was a mistake or omission in the bond under which (i) claimed “as the penal sum is omitted and a blank left for the same” but denied they ever pretended they would take any advantage nor did they refuse to pay, really believing that (i) lent £200 to Elizabeth Garthorne and Beatrice Ridges on credit of the bond, believing the letters mentioned in (i)’s bill to be Elizabeth Garthorne’s hand;
- Henry Hall admitted being in possession of such part of the personal estate of John Garthorne as he could come by but believed that John Downes possessed himself of a very considerable part of John Garthorne’s personal estate “for which he refuses to account with” Henry Hall;
- Henry Hall admitted that John and Sarah Downes had forbidden him to pay any more interest due on the bond
“Whereupon and upon debate of the matter” the Lord Chancellor ordered:
- that it be referred to Mr Sawyer, Master in Chancery, to take account of the principal sum of £200 and interest due and tax (i) her costs;
- the copyhold estate in Walthamstow be sold with approbation of the master and money arising applied first to payment to (i) for principal and interest on the bond, secondly to her costs;
- John Emmerson having consented to sale of the freehold estate in mortgage to him it was to be sold with the approbation of the master and the money arising applied to sum due for principal and interest on the mortgage and costs of John Emmerson;
- (i) to pay expenses of Henry Hall and Gilbert Burton which were to be added to her own costs which she was to be paid from the sale of the copyhold land which, if not sufficient, was to be ameliorated by money from sale of the freehold land; any shortfall to be paid by Sarah Downes