Page:The English Reports v1 1900.pdf/385

were adjourned over to the 20th of May following; and upon the 18th of July, 1718, the court of Exchequer decreed the lands to respondent, on the said supposed trust, and referred the stating an account of the profits to the Remembrancer; and 2d December, 1712, the causes were re-heard; and 16th February following, Mr. Baron Johnson, declared his opinion, that the respondent's bills should be dismissed without any trial at law; but the other two Barons directed a trial on this issue, whether the bond in 1666, and the deed in 1677, were executed by appellant's grandfather; and, 26th of February, 1712, ordered the issue to be tried by a jury of the city of Dublin, and would not permit it to be tried by a jury of the proper county, where the credit of the parties and witnesses were best known: And that Shee appealed [454] from the orders of the 18th July, 16th and 26th February, 1712; and Lawless also appealed from these orders of 16th and 26th February, 1712; and appellant Shee insisted that the Lords ought by their final decree, to establish his title and possession, and dismiss respondent's bills with exemplary costs; because appellant was an innocent purchaser, without notice of respondent's pretensions, and the benefit of his plea ought to have been reserved to him, in regard the matter thereof was a good bar; and because appellant had both law and equity for him, and respondent only a bare pretence of the evidence of equity supported by a single witness, who by his own confession had been suborned to swear falsely: And further, because respondent had set up a variety of fraudulent and inconsistent titles, viz. 1. An assignment of a mortgage made to him expressly by name in 1640, when he was not born. 2. A devise made to him by his father in 1662, of the same mortgage when his father had no power to dispose, he being a nocent person, and the mortgage then vested in the crown. 3. His brother Walter's decree of innocency and the trust declared thereupon, which was both fraudulent and absurd; unless one man might be allowed to lend his innocency to save another man's estate. 4. A. purchase under colonel Castle's title, which was a mere fiction, and not one word of it in proof: And again, because the bond was apparently feigned and contrived, and the deed of trust intirely founded thereupon, must necessarily fall with it: And further, because it appeared on the face of the pretended bond and deed of trust, that both were grounded on a supposition that respondent was, in 1666, well intitled to the mortgage, whereas it was manifest that he had no manner of right thereto: And lastly, that if a trial at law were necessary, it ought to be by a jury of the County of Kilkenny, where the lands in question lay, where the parties and witnesses lived, and their credit was best known. (Edw. Northey. Rob. Raymond.)

The respondent Lawless, on his part, stated: That Patrick Denn was seised in fee of Lovestown, and had issue Thomas and Margaret; and Richard Lawless, respondent's father, married Margaret, and that Patrick Denn, and Thomas Denn, executed the mortgage of 1631, to Richard Lawless, for 90l. being part of his wife's portion: And that Richard Lawless, by an indorsement on that deed, dated March 3d, 1640, as-[455]-signed the mortgage to respondent his youngest son; and by his last will, dated September 8th, 1662, devised the mortgaged premises to the respondent, and the rest of his real estate to his eldest son Walter; and that Patrick and Thomas Denn were attainted of treason in Ireland, in 1641; and that the estate of Richard and Thomas Lawless, was in the time of Cromwel's rebellion, seised and sequestred, and so continued till after the restoration; and that Walter Lawless, the eldest brother, in 1663, claimed his paternal estate, and also Lovestown, as an innocent papist, and his claim was allowed, and he put into possession; but gave a declaration of trust as to Lovestown, to respondent, who enjoyed it; and that in 1664, Walter joined with respondent in a lease of Lovestown, to one John Fitz-Gerald, who paid the rent to respondent: And that Lovestown, the equity of redemption and inheritance whereof was forfeited in 41, by the attainder of the said Patrick Denn, were, among other lands, set out and allotted to Colonel James Castle, for his service to the crown in Ireland, before 1649, subject to respondent's mortgage: And that colonel Castle had issue Anne, who married Thomas Tomlins; and respondent, in 1665, purchased from Tomlins and his wife the equity of redemption and inheritance of Lovestown, but that Tomlins and his wife afterwards surrendered Lovestown to the crown, without respondent's knowledge, without taking any notice of the sale before made to him, and thereby the equity of redemption and inheritance of Lovestown, became