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respondent Sarah Elizabeth. But in a further answer he admitted, that Francis died seised in fee of a third part of the lands and premises in the county of Kilkenny, and that Richard became seised in fee-simple of one-third, or some other part of the premises, and that the respondent Sarah Elizabeth was his heir at law.

On the 2d of November 1764, Flood also answered the bill; and admitted the executorship and judgment; and said, he never intermeddled, but permitted the appellant to use his name.

On the 19th of December 1764, the respondents obtained an order for liberty to pay the defendant Flood, or bring into court the money sworn due by him on the foot of the said mortgage; and in pursuance of the said order, on the 26th of February 1765, paid the same to Flood, and took his receipt, but he had not re-conveyed or assigned the said mortgage, nor were there any further proceedings in that suit.

In May 1767, Pierse, the idiot, died unmarried and without issue, leaving the respondent Sarah Elizabeth, his heir at law; and the appellant having refused to deliver up the possession of Pierse's third of [392] the estate of Thomas Butler, or Richard Butler's third thereof, the respondent Sarah Elizabeth, by the respondent Sarah her mother and guardian, and the said Sarah, as administratrix of Richard Butler her husband, and also as administratrix of Francis, the father of Richard, on the 18th of June 1767, filed their original bill in the Court of Chancery in Ireland, against the appellant and Stephen Creagh Butler, esq. the committee of the estate of Pierse the idiot, John Flood the mortgagee, Philip Tisdale, Attorney General of Ireland, and the appellant, administrator of Elinor, the widow of Thomas Butler, stating such of the several facts before mentioned, as had come to the knowledge of the respondents; and that the respondent Sarah Elizabeth was then the heir at law not only of Richard Butler, but also of Francis Butler, Pierse Butler, and Thomas Butler, and entitled to all their estates in the counties of Kilkenny and Tipperary, except the third part to which the appellant was entitled by virtue of the deed of the 22d of March 1756: and prayed, that the appellant might account with the respondent Sarah, for the third part of the rents and profits of the estates which belonged to Francis and Richard respectively, to the death of Richard her husband, and might account with respondent Sarah Elizabeth, from the respective deaths of Richard and Pierse Butler; and that the appellant might be obliged to execute the covenants and agreements in the deed of the 22d of March 1756; and that an equal partition might be made of the estates, pursuant to the tenor of that deed; and that the respondent Sarah Elizabeth might be decreed the possession of such parts of the estates as she should be entitled to; and that the appellant might be restrained from receiving any of the rents thereof.

The appellant put in his answer to this bill, and therein (inter alia) said, he was advised that Thomas Butler was not seised in fee; but believed Pierse Butler was seised in fee of the lands in question, and being so seised did, about the year 1694, make a settlement of the said estates; and by his will, published in 1703, reciting such settlement, confirmed the same; and that Thomas, as the eldest son and heir male of James in the said settlement named, was in virtue thereof seised of an estate in tail male, and not of any other or greater estate; and that Thomas lived and died a Papist. And the appellant by his answer insisted upon the settlement of the 20th of July 1694; that he was a stranger to his title, and to the title of Thomas his father, at the time he took the lease in 1737 from Francis, and that he entered into the deeds of 1753 and 1756 in ignorance of his title; that in regard no partition was made under the deed of 1756, or any fine levied or recovery suffered by Thomas, the son of Francis, to establish the same, he was not to be affected by such deed; that he was entitled, since Pierse's death, as heir male of Thomas, to the whole of the estates; and insisted that he did not get into possession under that deed, but under the gavel-king clause in the act to prevent the growth of Popery.

The appellant soon after putting in this answer, caused ejectments to be brought for the recovery of such parts of those estates [393] as he had not got possession of; wherefore the respondents, on the 10th of March 1768, obtained the order of the Court of Chancery to stay the appellant's proceeding in the ejectments, until the hearing of the cause.—The appellant thus disappointed, determined to put the