premises to the plaintiff, or to such person as he shall direct. And in case it shall appear that the defendant hath been over paid, it is ordered, that he do pay such overplus (5) to the plaintiffs. And in case the plaintiffs shall not so pay to the defendant what, if any thing, shall be found due to him for principal, interest, and costs as aforesaid, after such deductions as aforesaid, by the time aforesaid, the plaintiff's bill is to stand dismissed out of this Court with costs, to be taxed by the Master. And for the better taking the account &c. (6). [See Usual Directions, No. II. ante.] And any of the parties are to be at liberty to apply &c. [See Usual Directions, No. XIX. ante.] Byne v. Vivian, L. C. 28th January, 1800. Reg. Lib. A. 1799. fol. 337. S. C. 5 Ves. 604. NOTES. (1) Account of Consideration. It was formerly doubted at law whether, where an annuity was set aside for a defect in the memorial, the consideration could be recovered back. See Davis v. D. of Marlborough, 2 Swan. 157. Low v. Barchard, 8 Ves. 136. Bromley v. Holland, 7 Ves. 23. But it is now settled that it may. See Davis v. D. of Marlborough, supra. Jones v. Harris, 9 Ves. 492. Low v. Barchard, supra. Bromley v. Holland, supra. In Davis v. D. of Marlborough, supra, it is said by the Lord Chancellor, that on a bill by the grantor to have an annuity deed delivered up as void under the statute, he is entitled to that relief, without accounting for the consideration paid for the annuity, leaving the annuitant to proceed at law. But see Aguilar v. Aguilar, 5 Mad. 416. and note. Lien for Consideration. upon the fund upon The grantee has no lien for the consideration which the annuity is secured. Jones v. Harris, 2 Ves. 496. A fortiori, where the fund is the separate estate of a fême covert. Williams v. D. of Bolton, 2 Ves. jun. 138. S. C. 4 Bro. 297. Jones v. Harris, 9 Ves. 486. Angel v. Hadden, 2 Mer. 169. Aguilar v. Aguilar, 5 Mad. 414. But the grantor may deprive himself of the benefit of the rule by an offer to redeem. See Davis v. D. of Marlborough, 2 Swan. 156. Barzelgetti v. Battine, Ib. Byne v. Vivian, supra. See 5 Mad. 417. note. So it seems in a case of misconduct. Ex parte Wright, 19 Ves. 255. It seems however that the offer may be made so as to constitute a personal charge only, not a charge on the fund. See Davis v. D. of Marlborough, 2 Swan. 160. D. of Bolton v. Williams, 2 Ves.jun. 142. (2) Costs. In Byne v. Potter, 5 Ves. 609. the defendant was decreed to pay the costs. But see what is said of this case in Bromley v. Hol land, 7 Ves. 28. In Bromley v. Holland, 7 Ves. 3. S. C. Coop. 9. the decree was without costs. So in Duff v. Atkinson, 8 Ves. 577. wards, 18 Ves. 362. Dupuis v. Ed See But it seems that the defendant will be allowed his costs. Byne v. Vivian, supra. Hoffman v. Cooke, 5 Ves. 633. Holbrook v. Sharpey, 19 Ves. 134. As to costs in the case of oppressive bargains. See Beames on Costs, 105. (3) Account of Payments. Where the consideration is recovered at law, the payments made in respect of the annuity are deducted. See Davis v. D. of Marlborough, 2 Swan. 157. Bromley v. Holland, 7 Ves. 23. And the rule is the same in equity. supra. Byne v. Vivian, 5 Ves. 608. 633. See Bromley v. Holland, Hoffman v. Cooke, 5 Ves. In Bromley v. Holland, 5 Ves. 610. the account was confined to the time of the filing of the bill. But this was reversed on appeal, and an account directed from the beginning. S. C. 7 Ves. 3. Coop. 9. And see Holbrooke v. Sharpey, 19 Ves. 133. Rests. In taking the account rests will be directed. See Hoffman v. Cooke, 5 Ves. 633. Bromley v. Holland, 7 Ves. 29. S. C. Coop. 26. and what is said arguendo in Holbrook v. Sharpey, 19 Ves. 132. See Decrees for Account, No. I. Note (6), ante. (4) Delivery of Deeds. That equity has jurisdiction to decree deeds void under the Annuity Act to be delivered up. See Byne v. Vivian, supra. Byne v. Potter, 5 Ves. 609. Bromley v.Holland, 5 Ves. 610. S. C. 7 Ves. 3. Hoffman v. Cooke, 5 Ves. 623. Lowe v. Barchard, Philipps v. Crawfurd, Jones v. Harris, 9 Ves. 493. Ware v. Coop. 9. lar, 5 Mad. 414. 2 Horwood, 14 Ves. 28. Holbrook v. Holbrook v. Sharpey, 19 Ves. Swan. 157. Aguilar v. Agui And this after the failure of an application to a court of law for the like purpose. Bromley v. Holland, supra. Angel v. Hadden, 2 Mer. 164. And notwithstanding an order for the payment of the annuity in another cause, not expressly instituted for the purpose of determining the validity of the annuity. Angel v. Hadden, supra. Whether the bill can be sustained without an offer to repay the consideration, Q. See Account of Consideration, Note (1), ante. (5) Surplus. In Byne v. Potter, 5 Ves. 609. no direction-was given for repayment of the surplus. And see what is said by the Lord Chancellor in Bromley v. Holland, 7 Ves. 13. 24. Holland, 7 Ves. 13. 24. But that the defendant will be decreed to repay the surplus. See Byne v. Vivian, supra. Holbrook v. Sharpey, 19 Ves. 131. As to refunding in case of usury. See Bosanquet v. Earl of Westmoreland, 1 West, 598. (6) Allowances. In ex parte Shaw, 5 Ves. 620, the defendant was not allowed the expense of insurance, nor the costs incurred in supporting his annuity. In Hoffman v. Cooke, 5 Ves. 623, the expense of insurance was allowed. And see Gwynne v. Heaton, 1 Bro. 11. Heathcote v. Paignon, 2 Bro. 170. In the first case it was allowed on the ground of an offer contained in the bill, which was struck out by amendment, but afterwards restored in consequence of a motion for that purpose by the defendant. See Mr. Bell's Evidence, Chan. Rep. Appendix A. 392. Whether the expense of insurance is allowed at law. Q. See Ex parte Shaw, 5 Ves. 622. Hoffman v. Cooke, 5 Ves. 632. Sawyer v. Bence, there cited. It seems that formerly the Court, in setting aside oppressive instruments, often directed in the decree that every thing should be taken most strongly against the defendant. See Mitford v. Featherstonhaugh, 2 Ves. 445. No. II. DECREE SETTING ASIDE FORGED INSTRUMENT. [The plaintiff Amey was devisee of the copyhold, which had been purchased by her late husband, John Thomas, through the intervention of the defendant Braban, but to which he had not been admitted. The defendant Morgan, the lord, claimed the premises as forfeited. The defendant Williams, the heir at law, claimed them as not well devised. The defendant Braban had got into possession, and set up a title in himself, under a declaration of trust alleged to be executed by John Thomas, but which was forged. The defendant Anne Powell was heir at law of the vendor.] It appearing to the Court that the said declaration of trust was forged, His Honour doth order that the plaintiff's bill, as against the defendant Anne Powell, do stand dismissed out of this court with forty shillings costs; and that it be referred to Mr. I. B. one &c. to tax the said defendants Morgan and Williams their costs of this suit, which are to be paid to them by the plaintiffs. And it is further ordered and decreed, that the said defendant Williams be admitted to the said copyhold estate, at the expense of the said plaintiffs, and do then surrender the same to the said plaintiff Amey, her heirs and assigns; and that thereupon the said plaintiff Amey be admitted to the said copyhold estate at the plaintiff's expense. And the said defendant Morgan is to permit such admittance and surrender to be made accordingly. And the said defendant Braban is to come to an account before the said Master for the rents and profits of the said estate received by him, or by any other person or persons for his use. For the better discovery whereof &c. [See Usual Directions, No. II. ante.] And what upon the balance of the said account shall appear to be remaining in the said defendant's hands of the said rents and profits, is to be by him paid to the said plaintiffs. And the said defendant Braban is to pay unto the said plaintiffs their costs of this suit, to be taxed by the said Master, together with the costs which the said plaintiffs shall pay to the said defendants, Morgan and Williams as aforesaid. Masters v. Braban, M. R. 10th July 1735. Reg. Lib. B. 1734. fol. 504. S. C. 1 Russ. 560. note. NOTE. Forged Instrument. In the case of a forged instrument equity will give relief, though not discovery. See Brownsword v. Edwards, 2 Ves. 246. The Court has jurisdiction to give relief without directing an issue. Peake v. Highfield, 1 Russ. 559. and cases there cited. Fitton v. Earl of Macclesfield, 1 Vern. 292. But, unless in a plain case, an issue will be directed. Peake v. Highfield, supra. Barnsley v. Powel, 1 Ves. 120. And see Jones v. Jones, 3 Atk. 111. Shirley v. E. Ferrers, 3 P. W. 77. Where an issue was directed to try the validity of a will suspected to be forged, the Judge was directed to indorse upon the postea whether the finding of the jury proceeded upon the ground of forgery or defect in execution. Barnsley v. Powel, supra. Further Directions. In a case mentioned by Lord Hardwicke, 2 Ves. 246. a deed being found to be forged was cancelled, and cut to pieces in court. But in Frankland v. Hampden, I Vern. 66. it was said by the Solicitor-General, and not denied by the Court, that a forged deed or writing cannot be torn or defaced by law, but must be kept so that the king may proceed upon it against the criminal. And with this view, instruments suspected to be forged will be ordered to be deposited with the registrar. Bishop of Winchester v. Fournier, 2 Ves. 445. and cases there cited. And see Calvert v. Saunders, 1 West, 698. Lord Redesdale, 104. note. In the case of John Ward, cited 2 Ves. 447., a prosecution was directed. Where the verdict is against the forgery leave will be given to the |