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![handle is hein.slavery/ssactsengr0612 and id is 1 raw text is: PINCKE V. THORNYCROFT [1785] IV BROWN.
CASE 6.-ALURED PINCKE and others,--Appellants; EDWARD THORNYCROFT
and others,-espondents [28th February 1785].
[In what cases courts of equity will restrain a party from setting up a fine
as a bar to an ejectment; especially where the non-claim has run pending a
suit in equity between the same parties.]
** DECREE of Lords Commissioners, dismissing the bill, REVERSED.
Although a bill in Equity is not such an action as will avoid a fine, if the
subject matter of the suit be of legal jurisdiction, yet still in some instances
the filing a bill in a Court of Equity will prevent the bar arising from a,
fine and non-claim: and in cases of this kind the Court will direct a trial at
law, with an order that the defendants shall not set up the fine in bar of the
plaintiff's claim; upon the same principle that a Court of Equity sometimes
directs that the defendants in a suit at law shall not plead the statute of
limitations. Cruise on Fines, 329; cites 2 Atk. 389, 390; insisted on by the
counsel for the appellants.
In 1 Bro. C. R. 289. it appears that the Lords Commissioners determined
That the filing a bill for equitable relief, is equivalent to bringing an
action, in its effect of preventing a fine from being set up as a bar; but filing
a bill merely for discovery is not.-The present bill was for a discovery and
an account; and the House of Lords reversed the Lords Commissioners'
decree.**
** 1 Bro. C. R. 289.
Sir John Thornycroft Bart. the son of Sir John Thornyeroft, late of Milcomb in
the county of Oxford, Bart. was, in his life-time, as heir of his father, entitled to the
remainder in fee of the estates in question in this cause, expectant on the decease of
his sister [93] Elizabeth, the then wife of Roger Peter Handasyde Esq. without
issue, under a settlement made by his father, by indentures of lease and release,
dated respectively the 15th anrd 16th of March 1722, whereby the same, with divers
other estates, were settled amongst other uses to the use of trustees, for 500 years,
upon the trusts therein mentioned, and which term was still subsisting; remainder to
the use of Elizabeth Ilandasyde for life; remainder to trustees to preserve contingent
remainders; remainder to her first and other sons ii tail male; remainder to the
daughter and daughters of the said Elizabeth Handasyde in tail general; remainder
after the determination of other estates therein mentioned, and which were at an
end, to the use of the right heirs of Sir John Thornycroft the father, for ever.
Sir John Thornycroft the son being so seised, made his will, dated 12th May
1739, whereby he devised all the estates to which he was so entitled, to the use of
'his wife for life; remainder to the use of the heirs of his body on his said wife
begotten or to be begotten, with remainder to the use of Henry Forster, his heirs and
assigns for ever.
Sir John Thornycroft the son died 24th of June 1743, without issue, in the life-
time of his sister the said Elizabeth Handasyde, who upon his death became the only
surviving child and right heir of Sir John Thornyeroft the father..
After the decease of Sir John Thornycroft the son, divers controversies arose
between Elizabeth Handasyde and Henry Forster, touching the validity of the said
will, and a suit was instituted by the said Roger Peter Handasyde and Elizabeth his
wife, against the said Henry Forster, in the court of Chancery, for the purpose of
setting aside the same; which disputes were afterwards compromised; and Forster
having agreed to accept £630 in lieu of all claims and demands under the will,
did thereupon, by indentures of lease and release, dated respectively the 8th and
9th of May 1745, convey all his interest in the estates devised by the said will, unto
the said Roger Peter Handasyde and Elizabeth his wife, who was the heir at law of
her brother, Sir John Thornycroft, to hold to the use of the said Roger Peter Handa-
syde and Elizabeth his wife, their heirs and assigns for ever, as joint-tenants.
Elizabeth Handasyde survived her husband, and having no issue, made her will,
dated the 24th of April 1772, in the words following: In the name of God, Amen.
I Elizabeth Handasyde, of the parish of Walton upon Thames, in the county of
Surry, widow, being in health and of sound memory, do make this my last will
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