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![handle is hein.slavery/ssactsengr0351 and id is 1 raw text is: BRADSHAW V. BRADSHAW
William Herbert into this Court to show cause why all the proceedings in said cause
should not be declared void, because during all that suit she was a minor, and was
not cited to appear by a guardian, and did not appear by one. We insist that this
Court has not jurisdiction, and have appeared under protest. We object that this
is an original cause of complaint and not an appeal, and therefore by statute 23 H. 8,
c. 9, this Court is restrained from citing Herbert out of his diocese, unless in some
of the five cases excepted in said statute; but this case does not fall under any of
those exceptions; querelas are never admitted here originally; if an appeal had been
brought here and deserted, they could not afterwards have brought a querela. Arches,
4th session, Hilary, 1713, Doughty against Newell; Doughty, a clergyman, was suspended,
renounced his appeal, then brought a querela in the Arches: [288] held, it could not
be here, because the Arches cannot cite originally. Dr. Wallis's case was cited in that
cause, where it was held that the time for appealing being lapsed, a querela could not
be brought in the Arches.
Dr. Hay for Hughes. Hughes was about fourteen at the time of said suit; never
appeared by a guardian, and even Herbert's proctor alleged her to be a minor. The
question is whether, she being then a minor, and not cited to appear lawfully, the
proceedings are not void. She is now married to Mr. Hughes, and therefore brings
this querela; a cause of nullity is a cause of appeal; nullity may be alleged within
thirty years before the same judge, or before his superior. Clark's Prax. tit. 128.
Judgment-Sir George Lee. I was clearly of opinion that this was not an appeal,
and if it was it was void, because not interposed within fifteen days after the sentence;
that I had no authority to cite originally, except in the cases specified in statute
23 Hen. 8, c. 9, of which this is not one ; that the case of Doughty and Newell was in
point, and in all the cases I knew of where querelas had been brought in this Court,
the jurisdiction was first founded by an appeal brought in due time; and I believed
there was not one case to the contrary, for whatever the canon law may say concerning
bringing of querelas before the superior judge, this Court is now restrained by the
statute of Hen. 8. I therefore pronounced that Herbert was improperly cited, and
dismissed him, and said that Hughes might bring a querela in the Court of St. David's,
and if it was rejected there, [289] she might appeal therefrom to this Court as a
grievance, and so it was held in the Arches, June, 1719, Collins against Addison.
I cited the following cases, in every one of which the jurisdiction of the Arches
was first founded by appeals, and then qu~erela's nullitatis were brought.
June 26, 1724, Palmer and Jackman against Hicks and Lydstone; Arches, 1726,
Lomax against Lomax; Mich. By-day, 1726, Warren against Culme; Delegates,
December 9, 1734, Rushworth against Mason and Others; Easter Term, May 15, 1739,
Hawkins and Sumon against May; Arches, 4th Sess. Hilary, 1713, Doughty against
Newell, in which case this point was expressly determined.
BRADSHAW against BRADSHAW. Arches Court, Trinity Term, June 28th, 1756.-
An application for interest on a legacy, rejected.
Dr. Bettesworth for Thomas Bradshaw. Robert Bradshaw died in March, 1745,
made his will and appointed Elizabeth his wife executrix; she took probate; gave a
legacy of 101. to his nephew Thomas Bradshaw, in these words: Item-I give to
my well-beloved nephew Thomas Bradshaw, the sum of 1101., to be paid by my
executrix before her death. Executrix declined 'paying it, and therefore we have
brought this suit for the legacy, with interest ,from the testator's death ; she has
tendered 71. 10s. and alleges she has paid for said Thomas 21. 10s. already. The words
of the will imply an immediate payment of the legacy, because it was uncertain how
soon she might die. The 21. 10s. is a debt which this Court cannot determine upon,
and interest is due from her delay of payment.
[290] Dr. Hay contrA. 21. 10s. was advanced for his freedom, and she has made
affidavit that Thomas applied to her for that money to pay for his freedom. The will
leaves it to the discretion of the executrix to pay the legacy when she thinks fit, but
I admit under those words it would be payable upon demand from the legatee, but that
must be a legal demand by a suit. The principal question is, whether this legacy shall
carry interest? A legacy payable at a certain day shall carry interest from the day
of payment, 1 Vern. 166, Jolliff and Crew, Prec. in Chan. Interest cannot be due upon
a 101. legacy upon which no interest can have been made.
Judgment-Sir George Lee. I was of opinion the tender was sufficient; that the
344
2 ILEE. 288.](ViewImageLocal?handle=hein.slavery/ssactsengr0351&div=1&collection=&method=preview&ext=.png&size=3)