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1802.

BOND

HOPKINS.

no such bills had been filed, and the court had determined on the information of the Attorney General only, to which the heir and next of kin were parties defendants and brought before the court to bind their rights, and that, pending the suit on these informations, the statute of limitations had run against the title of the heir, ought the court to have permitted it to destroy that title? I have no doubt therefore, that when the bill of 1757 was dismissed in 1770, if a bill had been filed by Doctor Bond against the parties to the present suit, saying, “ I have a right to this estate “ against you, if Mrs. M'Geough has not; and I am entitled

to a perpetual injunction against you, founded on what “ has passed in your suit; and to take Bondville out of your “possession; to have an account of the rents against you " and the benefit of the recognizance for that purpose :" his right to this relief would have been considered as a clear right arising out of the decree of 1770; and he would have been held entitled to the account, and the benefit of the recognizance, if any had been entered into. That this was meant by the court, and that the bill of 1776 was thus acted upon, is clear ; for an injunction was awarded in 1778, to stay proceedings on the ejectments which had been brought in 1775 ; and upon what ground could that have been, but on the ground that the decree of 1770 had definitively condemned the will, and entitled Dr. Bond to restrain those who claimed under it from ever setting it up against him.

The decree of 1770 is therefore to be considered as the foundation of the present bill, which is brought to have the benefit of that decree; and I ought to give the same relief as if this had been a cross bill, or a bill filed immediately by Dr. Bond, unless the subsequent lapse of time makes a difference. Therefore I ought to decree a perpetual injunction as to the parts of the estate of which he was in possession at the

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time of that decree, if it be necessary; and as to the other parts, I should decree the possession to the plaintiff, in this suit, unless the title of Mrs. M'Geough stands in the way. But it does not; because, as the heir of Mrs. M'Geough has suffered this bill to be taken pro confesso, it is the same as if an issue had been directed between the plaintiffs and Mrs. M'Geough, and found in favor of the plaintiffs. Even if Mrs. M'Geough's heir had answered and contested the legitimacy of Dr. Bond, I should have had much doubt about letting him try the question of legitimacy now ; because Mrs. M'Geough should have made herself a party to the issue formerly directed, if she meant to try that question ; and it was unconscionable to put Dr. Bond alone to try the question on the will at his expense. . The M'Geoughs too may be considered as having admitted the legitimacy of Dr. Bond; for since the will was condemned in 1770, no ejectment has been brought by them for the estates of which he got the possession.

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The only remaining question is whether length of time since the decree of 1770 operates at all, conscientiously, or by that analogy to the provisions in the statute of limitations which has been applied by courts of equity to their proceedings. The first is out of the question. This must be taken to have been an abominable conspiracy to deprive the heir of H. Bond, whoever he might be, of the property in question. It has unavoidably been in part successful, by means of the possession, which enabled the parties who held it, to fight the right owner with his own property. Therefore there is nothing in point of conscience to protect the possession of the defendants. They have no right to try Dr. Bond's legitimacy; they cannot pervert a right, existing only in the person claiming to be the true heir, to the purposes of wrong. A bill was filed in 1776, and to this answers were put in, and replications filed. The present plaintiff

1802.

BOND

HOPKINS.

was all the while an infant. The defendants might have
set down the cause for dismissal ; but if there had been a
single counsel to have stated the right of the infant there
must have been a decree in his favour. The defendants
therefore did not stir: there was an order in 1785 for li.
berty for the plaintiff to sue in forma pauperis, and on that
order the defendants must have been brought into court.
The fine was levied in 1786 ; in 1789 the infant came of
age, and in 1792 filed this bill; and it is sufficiently en-
grafted on the former, (notwithstanding the informality of
it) as there was no demurrer. They both seek the benefit of
the decree in 1770 ; they are founded properly on that de-
cree, and properly seek the benefit of it. I have no doubt
therefore, the decree of the master of the rolls is to be
sustained so far as is necessary. The decision of the former
suit gave the plaintiff a full right to call on the court, by
the bill of 1776, to put the statute of limitations out of
the
way ;

but I think it warrants more ; I think it warrants a perpetual injunction against the parties to that suit to restrain them from setting up the will or the question of legitimacy to the prejudice of the plaintiff's title. M'Geough cannot now set up the question of legitimacy for his mere benefit, and it is against conscience that the other defendants should be permitted to set it up for their benefit. Suppose

there had been a decree against M'Geough in a separate cause, or a renunciation by deed : the other defendant in this cause having no title founded on the question of illegitimacy, could not in point of conscience be allowed to discuss that question. Therefore the decree of 1770 appears to me not only to be a foundation for the master of the rolls' decree, but to give a clear equitable title to the plaintiff, which nobody but Mrs. M'Geough could dispute. I think the court should have made the delivering up the possession to Dr. Bond, (in case a verdict should be found against the will) a condition on directing the issue : but if the

1802,

BOND

HOPKINS.

court has not done all it ought to have done, that shall
not prejudice the party, according to the decision of Lord
Eldon, in Pulteney v. Warren. So in the case of a bill
waiving a forfeiture, and on that ground seeking relief in a
court of equity; though plaintiff fail in obtaining that relief,
he shall be restrained from insisting on the forfeiture at
law. I must consider the plaintiffs in the bill of 1757 as
having undertaken to abide the fate of that cause with re-
spect to the will under which they claimed ; and the issue
which they prayed, as the foundation for a perpetual injunc-
tion against the heir. The court itself was blameable in
not having expressly provided for Dr. Bond all it ought to
have provided, either when directing the issue, or by the
decree of 1770; but I think in point of conscience those
*provisions ought to be considered as made, which ought to
have been made ; and that the other parties ought not in
conscience to be permitted to take advantage of that neg .
lect or mistake of the court.

The decree directed that " said decree be reversed ; " and declared that in as much as the bills filed by the

plaintiffs in this cause are to be taken as confessed by “the defendant Jos. M'Geough son and heir at law of " the late defendant Elizabeth M'Geough deceased, who " claimed to be the heir at law of the late Henry Bond “ deceased, and as such entitled to his estates in case the “ said John Bond deceased was not such heir ; the plaintiff “ T. B. in right of the said y. B. his father, is entitled in

consequence of the verdict on the issue directed by the VOL. I.

3 L

1802.

BOND

0. HOPKINS.

“ order 12th May, 1767, in the cause of 'Malone and “ others v. Bond and others; and by virtue of the order “ made in July, 1770, on the hearing of the same cause on

equity reserved, to the possession of the town and lands “ of Bondville, and to be quieted in the possession thereof, " and of the rest of the estates of the said Henry Bond, by

perpetual injunction against the defendant Rose Hopkins, “ and all persons claiming under her, by virtue of the al“ ledged will in the pleadings mentioned, either in her

own right, or as claiming under the said Henry Hopkins, otherwise Bond: and also against defendant, yos. “ M'Geough as heir of E. M'G. : and to have all the title “ deeds and writings concerning the said estatt's delivefed “to him: and that an injunction should forthwith issue ac

cordingly. And that defendant Rose Hopkins, and all per“sons claiming under her should be restrained by perpetual “ injunction from hereafter setting up or insisting on the “ will and codicil in the pleadings mentioned ; and that “ defendant 7. M'Geough should be restrained by the like

injunction from setting up any title to the said estates as “ heir of the said Henry Bond, to the prejudice of com“plainants and those claiming under said John Bond as '" heir of said Henry. And it appearing that defendant Rose had been in possession of the town and lands of “ Bondville from the death of Henry Hopkins, otherwise

Bond, it was referred to the master to take an account of “ what she made or without wilful default might have made “ from the death of said H. H. until possession should be " delivered to complainant, and that she should pay the

amount to complainant together with his costs. This de “cree to be without prejudice to any claim which may be “ made on Bondville by any person claiming under the will “ of 7. B. ; or to any claim which may be made by virtue of " the order of the - day of 1767 in said cause of Malone v. Bond, whereby security was ordered to be given

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