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with interest, on demand; and that the said Francis agreed to pay £40 yearly to the said Thomas Butler and Elinor his wife, during their joint lives, and the life of the survivor, and to give proper security for payment of the said £600 and £40 per ann. after the intended marriage should take effect, in consideration of the said Elinor's passing away her right of dower by fine and recovery, and in consideration of the said agreement of October 1728. This and the foregoing article were in the hand-writing of the appellant, and drawn by him.

The marriage between Francis and Elizabeth Butler having been agreed upon, articles were drawn and prepared by the appellant, and were executed on the 1st of March 1735–6; whereby Francis, in consideration of the marriage and £500 the portion of Elizabeth, agreed to convey the Kilkenny estate, granted and released to him by the deeds of the 16th and 17th of October 1728, and the equity of redemption of the Tipperary estate, to trustees in trust, that they should stand seised thereof to the use of Francis for life, and after his death (subject to a rent-charge of £60 per ann. to Elizabeth his wife, if living) to the use of the first and every other son of the marriage in tail male, with a remainder to the appellant. Thomas was named a party to these articles, but died on the 25th of the same March, without having executed them.

In December 1737, whilst Francis was in custody, on account of his engagements to pay the debts of his late father Thomas, the appellant obtained a lease from him of a considerable part of the Kilkenny estates for three lives, at a very low rent, and procured Flood the mortgagee to join in the lease; and an instrument in writing was then entered into, by virtue of which the appellant was to receive the rents and profits of the Kilkenny estate, and pay the same to Flood in discharge of his mortgage. The appellant held under this lease for thirty-six years.

On the 25th March 1735, Thomas died, leaving Elinor his widow; and by his will dated the same day, after reciting that Francis had covenanted to pay the younger children of Thomas £600 for their portion and advancement, he directed the same to be punctually paid, with interest; and thereby also directed the yearly rent of £92 reserved by the fee-farm grant, to be paid to the appellant, his heirs and assigns; and that the appellant [385] should pay thereout £250 a-piece to Catharine and Ann, in addition to their fortunes, £50 to Elizabeth the wife of Francis, and £50 to the testator's daughter Mary Mandaville; and appointed the appellant and Flood the mortgagee, executors of his will.—The appellant concealed this will till the 14th of July 1748, when he proved the same in common form.

On the death of Thomas, Elinor his widow, at the instance of the appellant, refused to accept the annuity of £40 and insisted on her dower; which was accordingly assigned to her out of the Kilkenny estate, in the management of which business the appellant was particularly active.

In May 1747, the appellant filed his bill in the Court of Exchequer in Ireland (which was afterwards amended) in his own name and that of Pierse Butler the idiot, against Francis, in order to set aside the several deeds executed by Thomas; charging the same to have been obtained by fraud, and to evade the act to prevent the further growth of Popery in Ireland; and charging that the said estates descended in gavel kind. And prayed an account of two thirds of the rents and profits of the lands since the death of Thomas, and to be decreed thereto, and to the possession of two thirds of the said lands, and to the growing rents thereof; but did not make any mention of Thomas's will throughout the bill.

On the 7th February 1748, Francis put in his answer to the bill; and therein stated the debts for which he became engaged, and paid for Thomas, which were a part of the consideration of the fee-farm grant of 1728, the articles of 1735, the mortgage to Flood, the idiocy of Pierse, and several other matters, as his defence; and issue having been joined in the cause, several witnesses were examined on both sides, and Francis fully proved the several allegations contained in his answer.—The appellant afterwards set down the cause to be heard, but expecting to have the bill dismissed, did not appear at the hearing; whereupon the cause was struck out of the paper, and the appellant was ordered to pay the costs of the day.

The appellant, further to harass Francis with suits, in Easter term 1750, caused him to be arrested upon a writ marked for the sum of £642 in the name of the