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that Perry had forty acres more in the two thirds than he ought, to the prejudice of the retrenched third, applied himself to Perry for redress, which he often promised, but did not; and so things continued till 1673, when Sir Audley began to disturb some of Perry's tenants, and then he preferred a bill in Chancery against Sir Audley, charging the agreement, and that he had set forth lands to the full value of 100l. a year, and that the retrenched third part ought to be in trust for him, and that he had not his full number of acres set out to him for his service, and therefore Sir Audley ought to have placed deficiencies of Perry's thereon: And that Sir Audley, in his answer, said Perry never pretended that he was deficient in his two thirds; and though they lived within a stone's throw of each other, yet Perry, for near six years, never made any pretence to the retrenched third part, until Sir Audley disturbed his tenants: And that, 7th February, 1673, on Perry's petition, the matters in difference were by order of the Court of Chancery referred to Thomas Taylor, and Henry Osborn, Esqrs. Officers of the Courts of Claims: and, 8th August, 1674, the arbitrators awarded Perry to give Sir Audley lands of 4l. 4s. 6d. a year, to make up the 100l. a year, and that Sir Audley should pay Perry 319l. 9s. 8d. and then he to deliver Sir Audley all the rest of the lands in possession but that at Sir Audley's desire (thinking the arbitrators had done him wrong in ordering him but 4l. 4s. 6d. a year) matters were referred back to be reviewed by the arbitrators, and before any award Sir Audley died, and left the estate to respondent Mervin, and then the executors or trustees of Sir Audley revived the suit, and the like referrees as before: And that the referrees made no alteration in their former award, save that they mentioned, that Perry had no right to the retrenched lands: And that the executors or trustees thinking that Perry, whilst in possession, was in the nature of a mortgagee, 5th April, 1676, preferred a bill in Chancery against Perry, for an account of the profits, and charging that the demesne lands were over-valued: And that Perry answered, 3d May, 1676, and objected against nothing, save being accountable for the mesne profits, and insisted on the former references and awards, and that he was willing to accept of the 319l. 9s. 8d. and thereupon to reconvey the lands [380] to Sir Audley Mervin's trustees, without any reserve or pretence to the retrenched third part: And then Perry died, and made appellants executors, who revived the suit: And that, 29th January, 1684, the court referred it to a master, to state the value of the demesne lands, and there were never any further proceedings thereon: but, in 1683, respondent Mervin mortgaged, amongst other lands, the retrenched lands to one Rolls, whose executrix, in 1691, preferred a bill in Chancery against respondent to foreclose, and accordingly had a decree; but before he was fore-closed, procured respondent Reily to pay off Mrs. Rolls, and to advance a farther sum, amounting in all to 3100l. and that the estate was accordingly made over to Reiley, who, in 1702, preferred his bill to foreclose him, and made the executors of Perry parties, to have the rest of the lands in their possession, upon paying the six years purchase; and that thereupon appellants, in 1703, preferred their bill against respondents, to have a decree for the retrenched lands, and an account of the rents and profits from 1667; whereto respondents answered, and respondent Mervin insisted on the matters aforesaid: And that the cause was heard several days in November and December, 1704, before the Lord Chancellor of Ireland (assisted by the Lord Chief Justice Doyne, and the Lord Chief Baron) who decreed that appellants had no right to the retrenched lands; and that as to the lands for which the 319l. 9s. 8d. was to be paid, appellants were not to account for mesne profits, nor were they to be bound by the account made up by Taylor and Osborn, but it was referred to a master: And respondent insisted this was just, because the acts of settlement and explanation, had always been expounded to bar all rights not expresly saved in the certificate and letters patents; and that Sir Audley, by placing deficiencies on the retrenched third part, made it his own purchase, without any dependence on, or reference to his contract with Perry, as any other person might have done. (St. John Brodrick.)

The appellant's bill having been dismissed as to the respondent Reiley; he on his part shewed his mortgage, and insisted that that decree of dismission was just and ought to be affirmed, because he had lent his money without notice of appellant, or Captain Perry's pretences to the retrenched lands, or of any trust, either express or implied, under the sanction of the decree of foreclosure, at the suit of Mrs. Rolls, and that appellants [381] during that first foreclosure suit, made no pretence to the