Page:The English Reports v1 1900.pdf/952

and heir apparent of the said Benjamin by the said Ann; Edward Stratford and Penelope his wife; Robert Echlin, son and heir apparent of the said Penelope, and Clotilda Eustace, spinster, (which said Ann, Penelope, and Clotilda, were nieces and co-heirs of the said Sir John Eustace,) against several of the children of the said Charles Tasburgh, setting forth, inter alia, the said decree of foreclosure; and insisting, that it was obtained by surprise, fraud, and imposition; and therefore praying, that the same might be reviewed and reversed, and that they might be let into a redemption of the premises. But they did not think fit to make Francis Tasburgh, the eldest son and heir of the said Charles Tasburgh, or the appellants, or either of them, parties to this bill; nor was any process made out, or further proceedings had thereon, till the 4th of September 1725, when the bill was amended, by making the appellants and the said Francis Tasburgh parties; but they were never served with any process to answer such amended bill, nor were any further proceedings had thereon.

But on the 10th of October 1728, the respondents exhibited their bill in the said Court of Chancery, against the defendants named in the first bill, and also against the appellants and others, stating the substance of the former bills; and that the same abated by the marriage of the said Clotilda Eustace with the respondent Tickle in 1726, and by the death of the said Benjamin Chetwood; and that they were entitled to revive the same; and praying to be let into a redemption of the premises.

The appellant Henry being served with a subpoena to answer this last bill, he, on the 17th of April 1729, put in a plea and answer thereto; and as to so much thereof as sought a redemption of the premises, or to compel him to account for the rents, or for any profit made thereof, or to compel him to produce any deeds, evidences, or writings relating thereto, he, by way of plea, insisted on the title as before set forth. And he further pleaded the indentures of lease and release of the 30th and 31st of May 1681, executed by Sir John Eustace, the declaration of trust executed by Charles Tasburgh, the decree of foreclosure, and the proceedings had in that cause; and the great length of time and acquiescence under the said decree. And by his answer he denied, that to his knowledge or belief, his late father used any fraud, or took any unfair advantage of Sir John Eustace, in obtaining the said decree of foreclosure or otherwise; and said, he was put to very great charges and expences in law, in maintaining the title to several parts of the said premises, particularly the rectories and impropriations. And the other appellant also put in an answer to this bill; and thereby denied, that at or before the time of the execution of the said lease, he had any notice of the respondents title, and insisted, that he was a purchaser, for a valuable consideration, of his said term, without any such notice.

[269] The appellant Tasburgh's plea coming to be argued before the Lord Chancellor of Ireland, on the 7th of July 1729, his Lordship was pleased to order, that the same should stand for an answer, with liberty for the respondents to except thereto, and the benefit thereof was reserved to the hearing of the cause.

The respondents replied, and the appellants having rejoined, the respondents, without reviving the former suit, proceeded to an examination of witnesses to matters charged in the former bills, and not properly put in issue in the present suit; and the cause coming on to be heard on the 9th of February 1731, a conditional decree was pronounced against the appellants, without having the said Francis Tasburgh, in whom the legal estate of the premises remained, before the court.

The appellants coming to show cause against this conditional decree, the cause came on to be argued on the 24th of November 1732, when the Lord Chancellor thought fit to permit the respondents to read as evidence against the appellant Henry, certain notes or minutes, pretended to have been taken in court in the year 1688 or 1689; and the depositions taken on the part of the respondents on the said irregular examination, not withstanding the objections made to the reading thereof by the appellants counsel; and his Lordship having taken time to consider of the matter, he was pleased to decree, that upon the respondents paying the appellant Henry, the principal, interest, and costs due to him on the lands and promises in the pleadings mentioned, he should re- convey the same to the respondents by such deed or deeds of conveyance, as one of the Masters should prepare and settle; and it was referred to the Master to take an account of what was due to the appellant Henry for principal, interest, and costs, the interest to be at £10 per cent. per ann. for the first five years, ending the 31st of May 1686, at which time the said interest and the principal sum