Page:The English Reports v1 1900.pdf/792

dents title, they ought either to have examined all the subscribing witnesses to it, or have proved their deaths, nothing of which was attempted to be done in the present case and it was fully proved in the cause, that Packington Edgworth was insane for some time before the making of this pretended will. But as the court permitted the respondents to go into their title under this will, against the appellant's title as heir at law, and to allow the same to be read; the appellant ought to have been permitted to read the will and codicil made by Robert Edgworth, and the proofs relative thereto, to shew that Packington had no power to devise or dispose of the lands, but had only a bare interest for life therein.

It was further argued to be the constant practice, where an injunction has been granted and defence made, to admit both plaintiffs and defendants to keep and continue the possession which they respectively had at the time of granting such injunction, until the determination of the cause; and therefore the appellant ought not to have been turned out of the possession of the manor, demesne lands and rents, before the hearing of the cause; nor ought Newcomen to have been restrained from acting as seneschal, or any attachment to have gone against him for so acting That the behaviour of Magill being such, as that the court thought proper to order an attachment against him, the same ought to have been allowed to issue without any further order; and he should have been compelled to restore the possession which he had got from the appellant in the manner before stated, and ought not to have been permitted to receive and distrain for the rents of the manor, when Newcomen was restrained from granting replevins. That as Magill was only a schoolmaster, and in low circumstances, the appellant's motion to oblige him to bring the rents into court, or give security for the same, was a reasonable motion, and ought not to have been denied much less was there any ground to consider it as so unreasonable and vexatious, as to make the appellant pay the costs thereof. That there was no proof of the appellant's using any kind of force, nor did he use any force in getting and keeping possession of the premises, and therefore he ought not to have been declared in contempt; and the decreeing injunctions to the sheriffs of Meath and Kildare, to [37] restore and quiet the respondents in the possession of the manor and lands, was in effect establishing the pretended will of Packington, in a summary way; and even if that will had been established, yet the appellant ought not to have been condemned in the costs of the suit, which he defended as the heir at law of Packington, and in which he fully proved himself so to be. That the statute 19th Geo. II. to prevent Protestants intermarrying with Papists, having been found experimentally more effectual in preventing families from being tainted with Popery, and in establishing the Protestant church, than all the other statutes made in Ireland to prevent the further growth of Popery, the same ought to be strictly put in execution, and all attempts to elude it discountenanced; and as it fully appeared in proof, that Packington Edgworth was a Protestant, and Mary Moore, the mother of the respondents, a Papist, no proof or evidence ought to have been allowed to defeat the appellant's claim, as brother and heir at law of Packington. And lastly, it has been determined and settled in a solemn manner, that if a plaintiff in a possessory bill fails to make out his case beyond all contradiction, or if there is a contrariety of evidence which may require an issue to ascertain the fact; the bill ought to be dismissed, and the plaintiff left to the common course of law. It was therefore hoped, that the orders complained of would be reversed; that the appellant would be restored to and quieted in the possession of the premises, and he paid and satisfied all the rents and profits which had accrued due since the death of Packington Edgworth, with interest; and that the respondents bill would be dismissed with costs.

On the other side it was said (W. de Grey, C. Ambler), that the proceeding by possessory bill is grounded on the equity of the statutes against forcible entries and detainer, and that the respondents being within that equity, were entitled to the remedy. That this proceeding not affecting the right but only the possession, the only requisites for supporting a decree of restitution and injunction, which in terms give a possession only till eviction by due course of law, are the proof of a triennial possession by virtue of a title still subsisting, though it should be a defeasible one, and a forcible entry and detainer. That Packington Edgworth appeared by the will of his father, and the decree of the Court of Exchequer, as well as by the proofs in the cause, and the appellant's own admission, to have been seised in fee and in