Page:The English Reports v1 1900.pdf/937

fifth part of the money or land which belonged to the said Frances Dennis; and, in Hilary term 1698, this cause came on to be heard before the Lord Chancellor Somers, who directed that a petition should be presented to the House of Lords in the name of the defendant Woodman, to explain their said judgment of reversal.

This petition was accordingly presented, and on the 19th of April 1699, after hearing counsel, it was dismissed. (Jour. vol. 16. p. 442.)

On the 31st of January 1700, the cause came on again to be heard before the Lord Keeper Wright, when the appellant's coun-[246]-sel not appearing, the bill was dismissed. The appellant thereupon preferred a petition to have the cause re-heard, which was granted; but the defendants having, in the mean time, procured the order of dismission to be inrolled, the appellant was thereby defeated of the benefit of his petition.

He therefore, in June 1702, brought his bill of review, to which the defendants demurred generally; and on arguing that demurrer, in Trinity term 1704, before the Lord Keeper Wright, his Lordship was pleased to allow the same, and dismiss the bill.

From both these orders of dismission the present appeal was brought; and on behalf of the appellant it was insisted (S. Dodd), that he was a real and bona fide creditor of Mrs. Dennis for £1600, and had a mortgage of all her right and title to her father's estate and that this right was either the pre-emption, or a fourth part of the money, or a fifth part of the land, which she neither did or could forfeit. That the matter of the pre-emption was the single point decreed to Woodman, and determined against him by the reversal of that decree; but that the appellant claimed only a security upon the fourth part of the money, or a fifth part of the land which Woodman never claimed. That the appellant was no party to Woodman's cause, and could not therefore be affected by any of the proceedings in it; but, as the present cause had not been yet heard upon the merits, it was hoped, that the said several orders of dismission would be reversed, and the inrolment discharged; and that the cause might be sent back to the Court of Chancery to be heard, it being unreasonable that the appellant should be dismissed unheard.

On the other side it was said (T. Bedford), that since the dismission of Woodman's petition by the House, the estate in question had been sold, and conveyed to several persons, who had purchased it, under the said orders of reversal and dismission: wherefore, and in regard the appellant's case was the very same with Woodman's, and contained no new matter, nor suggested any thing which was not disclosed, and under consideration upon the former appeal, it was hoped that the present appeal would be dismissed with costs.

And accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the orders and decrees therein complained of, affirmed. (Jour. vol. 18. p. 99.)

Thomas Newburgh, esq. was tenant by the curtesy of a moiety of the manor of Ballyhaise, in the county of Cavan, in Ireland, in right of his first wife Mary, by whom he had issue two sons, namely, Thomas and the respondent; and by his second wife Letitia, he had issue the appellant and two other sons; and, being seised of other lands in England and Ireland, he made his will on the 24th of May 1693, and thereby gave to his second son the respondent and his heirs, all the estate of inheritance which