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original bill; as was also the settlement of 1706. That neither the appellant's father or grandfather had really any right to, or any just ground to claim the manor and lands in question, before the time of Sir Joseph Tuite's being drawn into the articles and bond, which were fraudulently and unfairly obtained, without any real or valuable consideration. That there was no foundation to decree Sir Joseph Tuite's assets, either real or personal, to be applied in satisfaction of any breaches of covenant between George Houghton and George West, as Sir Joseph was neither a party or privy to those covenants, or any of the transactions to which they related, nor ought the respondents the Wests to have attempted it by their bill. And that the several orders of the 2d of June, the 15th of December, and the 5th of February 1749, were just and proper; and the appellant ought not to have been at liberty to rehear the cause, after so long an acquiescence since making the decree, but upon the terms of paying the subsequent costs which the parties had been put to.

The respondents Anthony and Edward Malone, who were the executors of Richard Malone, the surviving executor of Sir Joseph Tuite, insisted (C. Pratt, T. Sewell) upon the justice of the decrees and proceedings complained of, upon the same grounds as the respondent Sir Henry Tuite; and that the appeal, so far as it related to them, ought to be dismissed with costs, it being upwards of ten years since the decree of May 1744 was made, and great part of Sir Joseph Tuite's assets having been since paid away in a course of administration.

[98] After hearing counsel on this appeal, it was ordered and adjudged, that the decree of the 11th of May 1744, and the order of the 8th of July 1748, should be affirmed and as to the orders of the 19th of April, 5th of May, and 2d of June 1749, relating to the application for rehearing the cause, it was declared, that there was not a sufficient foundation for the Court of Exchequer to require the appellant to pay, within a week, all the costs incurred in equity and at law since the decree, as the terms of granting such rehearing; but that it would have been sufficient for the court to have required the appellant to give security for, or submit to pay the said costs, in case the decree should have been materially varied upon such rehearing: but considering the subsequent proceedings, and that the appellant had appealed to the House against the decree, which was now affirmed, their Lordships did not think fit to reverse those orders. And it was further ordered and adjudged, that the order of the 1st of December 1752, for setting aside the appellant's bill exhibited on the 12th of June 1752, should be reversed; it appearing that the said bill, besides such part thereof as prayed a review and reversal of the former decree and orders, was also an original bill, praying relief for the appellant against the respondents Sir Henry Tuite, and the representatives of Sir Joseph Tuite. And it was further ordered and adjudged, that all the other orders and proceedings complained of in the appeal should be affirmed. (Jour. vol. 28. p. 364.)

James Carroll, esq. by his will, dated the 28th of November 1711, devised all his real estate to Duncan Cuming. Joseph Henry, and Caleb Thomas, and the survivor of them and his heirs, in trust to and for the uses and under the limitations following; viz. First, to the intent that his personal estate falling short, all his just debts and funeral expences should be paid out of the rents and profits, or by sale or mortgage of his real estate, as afterwards directed; and then to the use of any son which he should or might have by Catherine his then wife, and to the heirs of the body of such son; remainder to any daughter he might have by his said wife, and