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Die Lunæ, 5 Maii, 1701. Upon hearing council on this appeal, it was ordered and adjudged that the same should be dismissed; and that the order of dismission, and the other order therein complained of, should be affirmed. Lords Journ. vol. xvi p. 667. (Prec. Chan. 94. 2 Eq. Ab. 430. 434. Vin. Ab. xi. 152. 410.)

The appellant made this case: That the testatrix Lady Ormsby, upon her marriage with Sir Edward Ormsby, had a jointure of near 500l. a year settled upon her in lands in the county of Limerick, in Ireland, and that after Sir Edward's death, respondent, his brother and heir at law, was anxious for the possession of the jointure lands, and had previously articled with one Thady Quin, an Irish papist, to make him a lease of some part of them for a considerable term; and prevailed on Lady Ormsby, in 1684, to make him a lease for ninety-nine years (if she lived so long) of the said lands, at 300l. per annum, rent payable half-yearly, at May and All Saints, above taxes and reprizes whatsoever, which was Lady Ormsby's only support and maintenance; and for due payment thereof, besides the usual clauses for distresses, there was a clause for the payment of twenty shillings per week, nomine pœnæ, whenever the rent should be behind, and unpaid after any of the days of payment; and for her further security of recovering all arrears, respondent gave her a bond of 1000l. for performance of all said covenants and agreements; and that said Thady Quin occupied parcel of the lands, and one Plummer other parcels, and respondent duly paid the 300l. per annum to Lady Ormsby up to May, 1688, but from thenceforward not one farthing had at any time been paid to her, and that she died about 11th October, 1691; so that at her death six half-yearly payments were in arrear; and that appellant, her executrix, having taken probat of her will, had for recovery of those arrears put the said bond in suit against respondent, who, to avoid such suit, exhibited a bill in Chancery in Ireland for an injunction; but being disappointed thereof, deserted his bill in Chancery, and filed a similar bill in the Exchequer, and soon after appeared himself to another bill filed against him by his tenant Thady Quin, to be relieved against arrears of rent, on pretence of great losses suffered in the late wars of Ireland; and that both these causes were [135] brought to hearing at the same time; and on respondent's bill a decree was made, for an intire abatement of all arrears from the feast of All Saints, 1688, unto Lady Ormsby's death; and that respondent should pay 150l. for one half-year's rent due at All Saints, 1688, and costs at law, about 2l. 10s. 8d. and that upon payment thereof the lease and bond should be delivered up, and a perpetual injunction was decreed to stay any further proceedings at law; to be relieved against which decree appellant now appealed, and insisted, that the arrears from November, 1688, ought not to have been struck off on account of the common calamities in that kingdom, because there were not any disturbances in the county of Limerick, where these lands lie, until after the battle of the Boyne, in July, 1690; and further, that though Thady Quin, the tenant, had been plundered of all, yet it could not be reasonable that all allowances to be made to him by the heir at law, should be deducted from the jointress only; for that landlords and tenants, land-inheritors, and those having but particular estates, are usually in such cases, and in justice, ought to be brought into a sort of average loss, where each may bear a part; but that by this decree, Quin, the tenant, had all the rent, 230l. per annum, allowed him for pretended losses by rapparees; Ormsby, his landlord, had 300l. per annum allowed to him for making that allowance to his tenant Thady, and Lady Ormsby, the paramount, must pay all, and bear the whole loss herself; and further, that even though it might be thought just to take from Lady Ormsby the whole rent for all the time the troubles were in the county of Limerick, yet that by no rules of equity could the arrears be deducted, which were