Page:The English Reports v1 1900.pdf/842

and Mary Barry, the appellant executed a power of attorney, dated the 9th of October 1700, whereby, after reciting that one part of the said manor and eleven plow lands, and advowson of Rathcormuck, had descended to him as one of the co-heirs of Redmond and Mary Barry, subject to their debts and legacies, he appointed the respondent Mrs. Townsend his attorney, to enter upon the premises, or his share thereof, to institute and carry on one or more suits in law or equity, as she should be advised, and to appoint attornies under her, with a confirmation of whatever she should lawfully do in the premises; and the appellant some time after leaving Ireland, the respondent Mrs. Townsend, under this authority, appointed an agent and six clerk for him, (being the plaintiff's own agent,) who appeared, and on the 23d of February 1753, put in a proper answer for him, which was received without oath, and acted as his agent and with his privity till the 6th of October 1763. By this answer the appellant said, that Redmond Barry the elder was seised of the town, manor and eleven plow lands, and advowson of Rathcormuck, and that after his decease in 1690, his son and heir James Barry the elder, became seised of such estate, but whether by descent or settlement could not set forth. But that if the estate was intailed on the marriage of James with his first wife Mary Anseline, as the bill suggested, he was advised and believed, that such intail must have been destroyed by the fine and recovery mentioned in the bill to have been levied and suffered in 1709; and said, he was an absolute stranger whether the said James Barry, in his life-time, sold or disposed of the lands, or charged his estate, or any part thereof, with the incumbrances set forth in the bill, but referred to such proofs as should be made thereof; said he was an absolute stranger to the wills and codicil in the bill charged to have been executed by Redmond and Mary Barry, having for several years been out of Ireland in his Majesty's service; and therefore insisted, that the plaintiffs should be compelled to make due proof of such wills and codicil, before they should take any benefit thereby, in disherison of him and the other heirs at law. And, supposing the plaintiffs should be able to make due proof of the execution of Mary Barry's codicil, he submitted, whether they should be let in to make any collateral or parol proof of her intention, by the bill supposed, to charge the estate by the codicil with £1399 or any sum or legacy other than what was expressed in and appeared upon the face thereof. And as to a sale of the estate, and a distribution of the money which should arise by such sale, he submitted the same to the order and decree of the court.

The several other defendants having answered, some upon, and some without oath, the plaintiffs replied to all their answers, except those of the appellant, and John St. Ledger and Robert Downes, two of the mortgagees; but though a replication to the appellant's answer was intended and prepared, and actually [112] engrossed, it was by some accident not filed, nor was the mistake discovered till after the hearing; but while the cause was at issue, it was considered equally so against the appellant, as against the other co-heirs, who were in the very same predicament with him; and the appellant's clerk was served with commissioners names for the examination of witnesses, and consented that the commissions should go to the commissioners settled by the plaintiffs and other defendants; and he was named in the stile of the plaintiffs interrogatories, and considered by them as at issue; and abatements happening in this interval by death, and by the respondent Mrs. Townsend's marriage, bills of revivor were filed, wherein, according to the then misapprehension, it was repeatedly stated, that the appellant's answer was replied to with the rest.

The plaintiffs proved their and the other co-heirs pedigree, the different fines and recoveries in 1709 and 1737, the possession of James and Redmond Barry, the entry of Mary Barry, and of her co-heirs on her death, and the forcible possession taken by Henrietta Barry for her son; they also proved the execution of the wills and codicil of Redmond and Mary Barry, the former by the three witnesses to it, and the codicil by two of the witnesses, without the least evidence on the other hand to impeach either the will or codicil, though objections had been taken by Henrietta Barry to the execution of the codicil, but which she did not pursue. They likewise proved the several securities upon the estate, with their respective assignments; and James Barry proved the settlement of 1666, and his descent as heir male of Redmond Barry the common ancestor. But no witnesses were examined for the other co-heirs, or any other of the defendants.