Page:The English Reports v1 1900.pdf/653

from what passed between Godfrey Bagnall Clarke, the son, and the appellant, after the death of the father, which happened on the 8th of March 1774; for the son, after his death, paid the appellant two sums of £50 for two quarters of a year expired during the father's life, the last of which ended at Christmas 1773; but paid none for the following year, the whole of which he lived, dying on the 26th of December 1774; and in that month the appellant delivered to [383] and settled with Godfrey Bagnall Clarke, an account of all his demands, to a large amount, without inserting any charge for the arrears of the annuity, though, if it had then subsisted, three quarters arrears would have been due.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed. (MS. Jour. sub anno 1780. p. 316.)

Thomas Butler, great grandfather of the respondent Sarah, having been in the year 1714, tenant in tail male of certain estates in the counties of Kilkenny and Tipperary in Ireland, suffered a common recovery of the Tipperary estate, and died on the 25th of March 1736, a Papist, leaving Elinor his widow, Pierce Butler his eldest son, an idiot, Francis, the grandfather of the respondent Sarah, his second son, the appellant his youngest son, and no other issue male.

In 1718, Francis conformed to the church of Ireland, as by law established, and continued of that religion during the remainder of his life. His father Thomas having been considerably indebted, and having considered Francis as his eldest son (Pierce being an idiot), came to the following agreement with him, namely, that Francis should undertake the payment of the debts due from Thomas, and that in consideration thereof, Thomas the father should execute a fee farm grant of the Kilkenny estate to Francis, at the yearly rent of £92; and accordingly, by lease and release of the 16th and 17th of October 1728, Thomas conveyed the Kilkenny estates to Francis, in fee, at the said yearly rent of £92; Francis maintained Thomas and his family from this time to the death of Thomas, paid several of his debts, and placed the appellant with an attorney, as clerk, and paid the usual fee.

On the 18th of July 1734, Francis mortgaged the Kilkenny estate to John Flood, for £700 a debt of Thomas; and afterwards, with Flood's consent, appointed the appellant agent or receiver of the rents, thereout to pay the principal and interest; and Francis having embarrassed his affairs by engaging for the payment of other debts of Thomas, it was thought expedient, in order to extricate himself, and to enable him to pay the debt still remaining due from his father, and provide for his own family, that he should endeavour to marry a woman of some fortune; and in order to qualify Francis for such a match, Thomas, by deed poll of the 28th of January 1735, in consideration of natural love and affec-[384]-tion, and for Francis's better advancement in marriage, agreed to convey him in fee the equity of redemption of the Tipperary estates, then in mortgage to Thomas Hayden; and a treaty of marriage having been entered into between Francis and Elizabeth the daughter of Richard Butler, esq. with whom he was to have £500, Thomas on the 29th of the same January, executed another agreement, reciting the former agreement of the 28th of January, and that Francis had agreed to give £600 to be equally divided between the appellant James and Catharine, and Ann Butler the younger children of Thomas Butler, for their portion and advancement in the world, to be paid to the said two daughters, with interest, on the days of their marriage, or whenever they should call it in, and to be paid to the appellant James,