case Andrew Chevers and other appellant Terence Geoghegan and other respondent  that march where new matter be suggest by a amend or supplemental bill foreign  and repugnant to the title set up by the original bill there can be no proceed  against the defendant without serve he with a subpoena ad faciend attorant nor  ought the cause to be bring to a hear without such service because the  defendant shall have a opportunity of defend himself against the new matter  decree of the Irish chancery reverse in vin c Eq ab c the follow point of the  case be state one defendant shall not be prejudice by the admission of another  by the constant and establish rule of the court of chancery in Ireland the  draft of a decree ought to be deliver to the adverse party or his attorney who  in eight day be to return the same sign by the counsel on that side or make  objection to the draft before it can regular be enrol vin Abr can viner vol  can Eq can ab can can John Chevers of Turpanmore esquire be possess of the  land of Lisnegrogy Creganagrogy Moyrish Carrowmore Caherbehernagh  Cahernefryery Buncan Clonescarbery and Blengasse situate in the county of  Galway by indenture date the d of brown June demise the same except the land  of Blengasse to Edward Lord viscount Galmoy and Walter Chevers esquire for the  term of year in trust for Joan Chevers his wife and the heir male of her body  by he beget at the yearly rend of pound sterling by deed date the that of  January the say Walter Chevers as the survive trustee at the request and  nomination of the say Joan Chevers assign the then residue and remainder of  the say term to John Sutton and John wall in trust for such person or person  as the say Joan Chevers shall appoint in may the say John Chevers borrow pound  of Nicholas Netterville and for secure the repayment thereof with interest  after the rate of pound per cent per and he together with the say John Sutton  and John wall the trustee the appellant Andrew Chevers and his elder brother  Edward Chevers convey the say land of Lisnegrogy Creganagrogy Moyrish and  Blengasse to the say Nicholas Netterville and his heir subject to a indefinite  condition of redemption and soon afterward the say John Chevers die leave  issue Edward his old son who sometime after die without issue the appellant  Andrew his second son and the appellant John his three son the say John Sutton  have survive the say John wall make his will in June and thereof constitute  his wife mary Sutton and Henry Loftus esquire executor who have prove the same  do at the request and nomination of the say Joan Chevers by deed date the that  of June grant and assign the then residue and remainder of the say term of  year to Christopher Chevers and Andrew Crosby brown er p by the death of the  say John Chevers and Edward Chevers his old son the equity of redemption of  the say mortgage land descend to the appellant Andrew Chevers who accord  continue in the quiet possession thereof for year and duly pay the interest of  the say mortgage and the appellant Andrew and John continue in the  uninterrupted possession of the demise premise after their mother death which  happen about year ago in August the say Nicholas Netterville apprehend that  the say mortgagors or some of they may be forfeit person exhibit a cautionary  claim before the trustee appoint for sale of the forfeit estate in Ireland and  thereby claim the benefit of the say mortgage and the say Christopher Chevers  and Andrew Crosby likewise claim the benefit of the say term of year but the  say trustee take upon they to sell the reversion of the demise premise and the  equity of redemption of the say mortgage land as the forfeit estate of  Christopher Chevers of Killian common call Lord MountLeinster on a presumption  that the say Edward Chevers brother of the appellant Andrew and John be lawful  outlaw in the year by the name of Christopher or be intend to be outlaw though  in reality brown there be no such person as Christopher Chevers call Lord  MountLeinster in January the respondent Terence Geoghegan who have be agent  and solicitor for the say Christopher Chevers and Andrew Crosby in get their  claim allow exhibit his bill in the court of exchequer in Ireland against the  appellant Andrew Chevers and John Chevers the say Nicholas Netterville and  other state that the say trustee have sell the equity of redemption of the say  mortgage land and the reversion of the say demise premise to the governor and  company for make hollow sword blade in England as the forfeiture of Chevers of  Killian common call Lord MountLeinster that he the say Geoghegan have purchase  the same from the say corporation and that he have apply to the appellant John  Chevers for a account of the rend and profit of the say demise premise and  also to the say Nicholas Netterville for a account touch the say mortgage and  therefore pray a redemption of the mortgage and to be decree to the rend and  reversion of the say land rely on a statute make in great Britain in the that  year of queen whether in favour of the say corporation and other purchaser of  forfeit estate to this bill the appellant Andrew Chevers and John Chevers put  in their answer insist on the title above state and several say they do not  believe that the trustee of the forfeit estate or any derive under they ever  have any title to or possession of the premise or any part thereof and also  insist that they have be all along in possession can not be affect by the say  statute there be a express proviso therein that it shall not extend to  prejudice the right or title of any person who be in actual possession at the  time of make the same which be the appellant case and they further insist that  the say Edward Chevers the old son and heir of the say John Chevers of  Turpanmore be not a forfeit person nor be ever attaint or outlaw as such and  refer themselves to the record of such outlawry or attainder if any there be  and to the judgement of the court thereupon pen this suit a indictment of  foreign treason be in find by the grand jury of the county of Dublin against  one Edward Chevers of Killian in the county of Galway esquire common call Lord  MountLeinster on the information of the respondent Geoghegan who swear he  believe the say Edward be in France in arm against her majesty queen whether  and thereupon by his procurement a capias be award in Hilary term against the  say Edward Chevers returnable Quind Paschae follow and though the say Edward  Chevers die before the return of the say writ yet a exigent be award against  he in easter term and he be thereupon as now allege outlaw in October follow  the respondent Geoghegan do not however think fit to insist upon or make brown  any use of this pretend outlawry but the cause be at issue he in may examine  some witness to prove that the gentleman of the grand inquest who find the  bill of indictment against Christopher Chevers common call Lord MountLeinster  in intend to indict the person who be the old son and heir of the say John  Chevers of Turpanmore by his wife Joan though his Christian name may have be  mistake in the record brown er p on the that of February the cause be hear  when the respondent Geoghegan produce a outlawry of high treason promulge in  the year against Christopher Chevers late of Killian in the county of Galway  common call Lord MountLeinster and will have have the court presume that it be  against Edward Chevers the elder brother of the appellant Andrew and John  though there be no proof in the cause to ground any such presumption upon and  the appellant by their counsel insist that the respondent Geoghegan have not  show that the say Christopher Chevers the outlaw person ever have any estate  right title or interest whatsoever in or to the land in question pray that his  bill may be dismiss but which the court on that and several other hear in the  year and absolute refuse on the that of February the cause be further hear and  it be then order that the appellant Andrew shall bring a ejectment and try his  title at the bar of that court by a jury of the county of Galway the three  Friday in the then next easter term but if he refuse to try the say ejectment  it shall be take pro acknowledged admitted fact that the name of the old son  of the say John Chevers be Christopher and if there be a default in the  respondent Geoghegan it shall be take pro acknowledged admitted fact that the  name of such old son be Edward the appellant Andrew Chevers be advice that the  direction give by this order be improper in regard he be thereby to admit  against truth that he be out of possession and that the respondent Geoghegan  be in consequence thereof leave at liberty to set up the say irregular  outlawry of against the appellant Andrew though it make no title for the  respondent and can have be of no avail to he in a ejectment bring on his  demise the appellant Andrew therefore apply for a rehear but although two of  his counsel certify under their hand that there be just ground to have the  cause reheard the court refuse it nothing however be do in consequence of the  say order the cause be again set down and come on to be hear upon the that of  December when the record of the say pretend outlawry in be produce by the  respondent Geoghegan and read the court be please to declare that the outlawry  then produce show the title to be in the crown rather than in the respondent  Geoghegan and therefore order that he shall be at brown liberty to amend his  bill by make his majesty attorneygeneral or such other of his majesty counsel  as he shall be advice a party the bill be accord amend and contain three  additional allegation videlicet that by virtue of a commission issue under the  great seal of Ireland in January the Lord MountLeinster be indict in the  county of Dublin by the name of Edward Chevers late of Killian in the county  of Galway common call Edward Lord MountLeinster for foreign treason commit  against her late majesty queen whether and that in the year he be outlaw  thereupon whereby the defect in the former outlawry by the name of Christopher  be supply and in regard the old son of John Chevers be the person intend to be  outlaw in it be insist that the subsequent outlawry in shall be deem to enure  and be in trust and for the benefit of he the say respondent Geoghegan so far  as to corroborate and strengthen his say purchase under the trustee for sale  of the Irish forfeiture and to the end that he may have equity decree to he  against the king he pray the usual order of process require his majesty  attorney or solicitor general to answer the say amend bill John Rogerson  esquire his majesty then solicitor general in Ireland immediate put in a  answer to this amend bill and thereupon it be on the that of November order  that the cause shall be hear on bill and answer as to Mr solicitor general the  four hear day in that term and shall be then further hear as to the rest of  the defendant but on the that of February follow it be order that the  solicitor general shall be at liberty to take his answer off the file and  amend the same which be accord do and on the that of the same month the say  solicitor general file his amend answer and on his majesty behalf say he  believe the say John Chevers late of Turpanmore decease leave three son as per  bill videlicet Chevers late of Killian esquire common call Lord MountLeinster  his old son and the appellant Andrew and John that the person common call Lord  MountLeinster be outlaw for high treason in three county in that king brown er  p dom on account of the late rebellion and that by virtue of a commission  issue in January he be indict in the county of Dublin by the name of Edward  Chevers of Killian in the county of Galway esquire common call Lord  MountLeinster for foreign treason by he commit against her late majesty queen  whether and be in the year outlaw thereupon and refer himself to the record of  the say outlawry and further say he conceive if any defect shall appear in any  of the former attainder by reason of any misnomer of the Christian name of the  say Chevers common call Lord MountLeinster then the aforesaid attainder of  foreign treason in the year ought to be apply in aid of the plaintiff purchase  and that it be reasonable the plaintiff shall not be deprive of the benefit of  his purchase upon brown the mistake of the Christian name of the say Chevers  common call Lord MountLeinster who appear to be the person intend to be outlaw  this answer be the more surprise to the appellant for that by a report make in  August on a order of reference from his majesty grant on the humble petition  of the appellant Andrew pray leave to sue out a writ of error for reverse the  outlawry in it be certify that by reason of the mistake of the Christian name  of the person call Lord MountLeinster the say estate be never vest in the  trustee for sale of the Irish forfeiture and that consequent the sale make by  the say trustee to the corporation for make hollow sword blade and that make  by the say corporation to the respondent Geoghegan be void the suit become  afterward abate by the death of the defendant Nicholas Netterville the  mortgagee a bill of revivor be file against the appellant Arthur and mary as  she be the personal representative of the say Nicholas and against Patrick  Netterville his son and heir and by two order of the that of January and that  of February the cause be revive against they though no process be ever award  nor any order make require the appellant or the say Nicholas Netterville to  answer the new matter insert in the say amend bill or to declare whether they  will abide by their former answer on the that of April the cause be bring to a  hear without serve the appellant or any of they with process to hear judgement  and on read the solicitor general be answer it be order and decree that the  respondent Geoghegan shall be at liberty to redeem the say mortgage premise  and that it shove be refer to the chief remembrancer to state the account on  the say mortgage and that on payment of what shall appear to be due the say  Patrick Netterville and the appellant Arthur and mary shall assign and convey  the say mortgage to the respondent Geoghegan and that the appellant Andrew  shall account with he for the full improve issue and profit of the say land of  Blengasse since the say trustee sale and that the appellant Andrew and John  shall account for the arrear of the pound per and since the say sale and that  the respondent Geoghegan shall by injunction be forthwith put into the actual  possession of the say land of Blengasse with the appurtenance part of the say  mortgage land not comprise in the lease and shall after the redemption of the  say mortgage premise be put into the actual possession and receipt of the say  pound per and reserve on the say lease and that the respondent Geoghegan shall  have and recover all and singular the say land and the rend and reversion  thereof under the rule aforesaid and shall also have and recover against the  appellant Andrew and John his cost expend in the say cause in pursuance of  this decree the respondent Geoghegan be soon afterward put into possession of  the land of Blengasse by virtue brown of a injunction though the money due to  the appellant Arthur and mary on the say mortgage be not pay or satisfy and  afterward the decree be irregular enrol without serve the appellant or any  attorney or agent concern for they or any of they with the draft thereof the  appellant therefore on the that of November move the court to set aside the  say enrolment for such irregularity and also to set aside the say decretal  order of the that of April for that the cause be irregular bring on to a hear  against the appellant Andrew and John who never answer the amend bill and have  no opportunity to controvert the new matter therein set forth also for that  the appellant Arthur and mary be not bring before the court after the say  revivor and be never serve with a subpoena ad faciend attorney in the say  brown er p cause and for that none of the appellant be serve with a subpoena  to hear judgement after the say amendment but although these several  irregularity full appear by the act and proceed of the court yet they absolute  refuse to set aside the say decree or the enrolment thereof on the that of  December the respondent Geoghegan move the court that he may be quiet in the  possession of Blengasse part of the say mortgage premise against distress to  be make by the say Patrick Netterville or the appellant Arthur and mary and  though it be urge on their behalf that until the account be take and certify  by the officer and until satisfaction be make to they for what be due for  principal interest and cost the respondent ought not to be quiet in the  possession of any part of the mortgage premise yet the court be please to  order the appellant Arthur and mary to make a affidavit of what be due for  principal and interest and that the respondent Geoghegan shall bring the same  into court subject to a account and thereupon be quiet in the possession of  Blengasse against distress until the account shall be state by the officer  from all these order and decree and particular the order of the that of  February the that of July and that of December the that of November and that  of February the decretal order of the that of April and the enrolment thereof  and the order of the that of November and that of December the appellant  appeal and on their behalf it be argue S Cowper S mead that it do not appear  to the court upon the hear in February or on any of the subsequent hear in and  that the respondent Geoghegan have any right or title to the premise and that  therefore no trial ought to have be order in the manner direct by the order of  the that of February but the original bill ought to have be dismiss with cost  that by the statute of that and that will for sale of the forfeit estate and  interest in Ireland no land be to be vest in the trustee therein name by  reason of any outlawry save only the estate of person outlaw brown before the  last day of Trinity term and it be thereby express enact that for the  encouragement of industry no person or person whatsoever shall at any time  after the say last day of Trinity term be prosecute indict or try for high  treason by he or they commit during the late rebellion in Ireland and  therefore the copy of the pretend outlawry in produce by the respondent  Geoghegan on the that of December can not mend his title or give he any better  right than he have before and consequent he ought not on that pretence to have  be indulge with liberty to amend his bill but the court on produce this  pretend outlawry ought to have dismiss the original bill with cost that the  new matter suggest by the amend bill do not as be apprehend give the  respondent Geoghegan any title either in law or equity nor ought the appellant  to have be in any respect prejudice or conclude by the admission of his  majesty solicitorgeneral who be only a defendant with they in the cause and  therefore the say decree of the that of April ought not to have be make but  the respondent amend bill ought to have be dismiss that the matter suggest by  this amend bill be foreign and repugnant to the title set up by the original  bill and do not in the least tend to strengthen or corroborate the same and  therefore the appellant ought to have have a opportunity of defend their title  and possession against such new matter that the appellant Arthur and mary be  never proper in court nor serve with a subpoena ad faciend attorney in the  cause or with process to hear judgement after fill the amend bill or the bill  of revivor so that the cause be not on the say that of April regular bring on  to a hear against any of the appellant that by the constant and establish rule  of the court the draft of a decree ought to be deliver to the adverse party or  his attorney who in eight day be to return the same sign by the counsel on  that side or make objection to the draft which have not be observe in the  present case that the respondent have be put into possession of part of the  mortgage premise before satisfaction be make to the representative of the  mortgagee and before any account take of what be due for principal interest  and cost on the mortgage and the appellant Andrew and John be to account with  the respondent from the time of the trustee sale although that sale be null  and void and nothing pass by it it be therefore hope that the say several  order and decree will be reverse as erroneous and that the respondent original  and amend bill will be dismiss with cost brown er p to all this it be answer p  York t reeve that the respondent upon the hear in February full show a title  under the trustee brown who sell by authority of parliament and who sale be  confirm against all pretender and therefore it be but just to deny a rehear  against the order direct a trial because such trial be a favour to the  appellant who have thereby a opportunity of prove the misnomer which they have  make no proof of in the cause that the outlawry in be for foreign treason and  not for the rebellion in Ireland nor either post death or clandestine and this  outlawry entire exclude the appellant from any pretence of title that none but  the crown can contest the respondent title but the crown have grant such right  as it have to the respondent in order to strengthen his purchase and it be the  prerogative of the crown alone to reverse that outlawry it can not be  controvert on a appeal that the only new matter in the amend bill be state in  the outlawry in and insist that if there be any defect in the first outlawry  it be supply by the second and pray relief against the crown who agree to  relieve as far as that outlawry give title and the answer of the  solicitorgeneral extend only to conclude the crown nor be any of these matter  repugnant to the first bill that the appellant be serve with a attest copy of  the amend bill and have time from the that of November to the that of April to  have answer the same and defend themselves but they obstinate refuse to do so  and will now make use of their own laches as a ground of appeal that there be  no occasion nor be it the practice to serve the appellant with a subpoena ad  faciend attorney because by the subpoena to revive they be command to appear  and show cause why all the proceed shall not be revive and they may have  appear and answer the bill of revivor if they please neither be it necessary  to serve they with a subpoena to hear judgement the cause and all the party be  at full hear on the that of February and the last hear be only a further hear  as to they and not a original hear that the appellant refuse to appear on the  that of April when the decree be pronounce the respondent on the that of may  follow move for liberty to make it up which as no body appear for the  appellant the court grant and yet the appellant make a complaint of matter  occasion by their own default that the respondent be just put into possession  in place of the mortgagor who by the express term of the mortgage be to hold  possession the mortgagee or any derive under he never have have possession and  therefore it be hope that the say several order and decree as be just and  agreeable to equity will be affirm and the appeal dismiss with cost but after  hear counsel on this appeal it be order and adjudge that the decree of the  that of April shall be reverse without prejudice to the precede order complain  of by the appeal and that the appellant shall be forthwith restore to such  possession of any of the land in question as have be take from they under the  say decree or any subsequent brown order and that the respondent shall pay the  rend and profit by they receive by virtue or under colour of the say decree or  order to the appellant and that the respondent Terence Geoghegan shall be at  liberty to bring on the cause regular in the court of exchequer in Ireland  accord to the course of that court and that thereupon the say court shall  proceed to determine as shall be just jour vol p