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![handle is hein.slavery/ssactsengr0643 and id is 1 raw text is: BOSANQUETT V. DASHWOOD
mas 1710, the said Robert Cooke died without revoking his said will, and seised in fee as
aforesaid, and without having made any surrender to the use of the will, and leaving the
said Richard Cooke his grandson and heir at law. The said Richard Cooke, by virtue of
the said will, entered on the said premises and enjoyed the same for life, and about the
year 1718, died without issue, whereby all the said premises devised by the said will, and
particularly the said copyhold premises descended to the plaintiff. The defendant
Arnham got into possession of the said copyhold premises, and refused to deliver up the
same to the plaintiff, pretending that the said Robert Cooke did not surrender the said
copyhold premises to the use of his will, and that the same upon his death descended to
the said Richard Cooke in fee, and that he before his death surrendered the said copyhold
premises to the use of his will, and that he afterwards made his will, and thereby de-
vised the same to Susannah Cooke his mother, and her heirs ; and that the said Susannah
Cooke afterwards devised or surrendered the said copyhold premises to the use of the
defendant Arnham in fee. The plaintiff insisted, that if a surrender by the said Robert
Cooke to the use of his last will is wanting, the want of such surrender ought to be aided
in a court of equity in favour of the plaintiff, who is a younger son of the said Robert
Cooke. The defendant Arnham insisted, that the said Richard Cooke and himself
having been above twenty years in quiet possession of the said premises, the plaintiff
ought not to set up any title to the same after such length of time, and that a surrender
should not be supplied in prejudice of an heir at law and those claiming under him,
though the plaintiff was a younger son, for that the plaintiff's father, in his life-time
gave him £5000, and at his death, by his will, gave him also £10,000 more, which far
exceeded the fortunes either left or descended to the said Richard Cooke, as heir at law
to the said Robert Cooke ; land that after the said Richard Cooke's death, who died
without issue, the plaintiff had, as heir at law to his father, estates of £100 per annum :
and after the death of the said Susannah Cooke, the plaintiff had also, as heir to his
father, other estates of inheritance, of the yearly value of £90, and that there was
no want of assets to pay his debts. Reg. lib. 1733, fol. 480.
(2) It appears by the register's book, that in this case the bill was brought (inter
al') to supply the deficiency of a surrender left in the hands of a customary tenant, and
not presented at the next court. The uses of the surrender were to the testator's eldest
son Andrew Burton, and the heirs male of his body ; and for want of such issue, to the
plaintiff, the second son, and the heirs male of his body, remainder over. The cause was
heard before his Honor, 3d July 1712, who decreed for the plaintiff ; and on the 14th
November 1713, that decree was, on an appeal, affirmed by Lord Chancellor. Vid.
3 P. Will. 285.
[38] DE Tmi i. S. MICHAELIS, 8 GEO. 11. [1734], IN CURIA CANCELLARI.E.
Case 10.-BosANQUE'rT versus DASuWOOD.(1)
11 Nov. [1734].
This court will decree money overpaid in pursuance of an usurious contract to be
accounted for, notwithstanding the agreement of the oppressed party to allow such
payments.
The plaintiffs being assignees under a commission of bankruptcy against the two
Cottons, brought their bill against Dashwood the defendant, as executor of Sir Francis
Dashwood, who had in his life-time lent several sums to the Cottons the bank-
rupts upon bonds bearing £6 per cent. interest (being the then legal interest) and
had taken advantage of their necessitous circumstances, and compelled them to pay at
the rate of £10 per cent. to which they submitted, and entered into other agreements
for that purpose , and so continued paying £10 per cent. from the year 1710 to the year
1724.
It was decreed at the Rolls that the defendant should account; and that for what
had been really lent, legal interest should be computed and allowed; and what had
been paid over and above legal interest, should be deducted out of the principal at the
time paid; and the plaintiffs to pay what should be due on the account : and if the
testator had received more than was due with legal interest, [39] that was to be re-
funded by the defendant, and the bonds to be delivered up.
CASES T. TALBOT, 38.](ViewImageLocal?handle=hein.slavery/ssactsengr0643&div=1&collection=&method=preview&ext=.png&size=3)