case John KIRWANE appellant sir walter black respondent that June interest may  be carry beyond the penalty where the bind be only take as a collateral  security By marriage article the lady be father be to pay her portion at  different time and in different sum towards disincumbering the husband estate  the father advance money to the husband and also maintain the wife and child  for some year the money so advance together with a allowance for the  maintenance shall be add to the foot of the account but shall not carry  interest order and decree of the Irish court of exchequer affirm see the note  at the end of this title p infra viner vol p can vol p can can Eq can ab can c  c by article bear date the that of August make between the respondent dame  mary his mother and Robert French his uncle of the one part and the appellant  and whether Kirwane his daughter of the other part it be inter alian agree  that a marriage shall he have between the respondent and the say whether the  appellant daughter that the appellant shall pay as a marriage portion with her  pound which be to be dispose of and lie out in redemption of mortgage and  encumbrance on the respondent estate by the direction of himself and the say  dame mary and Robert French and that the say pound shall be pay brown in  manner follow videlicet pound on or before the that of August pound on or  before the last day of August pound on or before the last day of August pound  on or before the last day of August and pound on or before the last day of  August and for better secure the four last sum make pound for the use mention  in the article the appellant perfect to Denis Daly Esq one of the trustee  therein name four several bind of equal date with the article Payable at the  respective day aforesaid with warrant of attorney to confess judgement thereon  and after recite that the respondent be under age and therefore incapable by  law of secure a jointure to the say whether it be agree that the appellant may  lie out and apply the several sum aforesaid as they shall become due in  redemption of mortgage due on the follow land agree to be settle on the say  dame whether for her jointure videlicet the land of Cloneen lie in the barony  of wagon and county of Mayo mortgage for pound the land of Kigalagh in the say  barony and county of Mayo mortgage for pound the town and land of Kinlagh in  the barony of Killmaine and county of Mayo and BaIlidonough in the half barony  of Ross and county of Galway mortgage for pound and may procure assignment of  the say mortgage in the name of trustee in trust for the respondent and  whether Kirwane and the heir of the respondent until he shall come to full age  the marriage take effect on the that of August and on the same day the  appellant in pursuance of the article pay to Patrick bodkin in part of the  mortgage of pound on the land of Cloneen the sum of pound and in the appellant  pay pound in discharge of a mortgage on the respondent estate in the month of  June the respondent attain his age and in January follow he perfect a  settlement of his estate on the say dame whether and the issue of the marriage  in pursuance of the say article the war break out in Ireland a pretend  parliament under king James two sit in Dublin and pass a act for repeal the  act of settlement in that kingdom whereby the appellant be dispossess of his  estate which he have purchase under the say act of settlement and the  respondent go into the army application be make to he by the appellant lady  insinuate that if the respondent shall happen to perish in the war the bind  pass to the say Dennis Daly will be put in suit against the appellant which he  be not then able to discharge whereupon the respondent deposit those bind in  the appellant hand and the same be afterward cancel by he or his lady the  trouble continue in Ireland and the appellant and his family remove to France  the respondent be prevail upon to let his lady and daughter go brown er p  along with they where they stay above three year much against the will of the  respondent who be very impatient to have they over the appellant however brown  declare that the respondent shall be at no manner of expense for they while  they be abroad but that he will provide they with all manner of necessary in  some time after the appellant return from France when the respondent frequent  apply to he to discharge the encumbrance affect the respondent estate accord  to the marriagearticle which the appellant for a considerable time refuse to  do but at length be much importune thereto by the respondent he instead of a  compliance deliver the respondent a account wherein he charge he with several  small sum of money lend for which he take the respondent note and also with  several hundred of pound pay the respondent in brass money which at the time  of payment be not worth above twelve penny a pound in discharge of the portion  covenant to be apply in redeem encumbrance on the respondent estate as  aforesaid the respondent find himself much oppress by be oblige to pay the  money become due yearly on the mortgage which ought to have be discharge by  the appellant out of the say portion and have in vain apply to he to perform  the article the respondent on the saint of December file his bill in the court  of exchequer in Ireland against the appellant and other for a specific  performance of the say marriagearticle but be afterward advice that in regard  he be the only tenant for life of the say mortgage land and his two son have  remainder in tail in they it be proper that they shall be before the court be  therefore soon afterward file a supplemental bill to which his say son be make  party the appellant by his answer confess the marriagearticle but say that as  a further security that the money shall be apply to the use therein mention  there be bind pass by he to Dennis Daly Esq and that the respondent give he up  the say bind in consideration that he have lose his estate by the act of  repeal he then set forth several payment which he have make to the respondent  and his order enumerate several present give by he to the respondent and his  lady and several benefit they have receive by his bounty particular that he  maintain the appellant lady and daughter three year and upward in France  without any obligation on he so to do but in friendship to the respondent as  he be marry to the appellant only daughter to who he grudge nothing that be in  his power to give the appellant find on a strict enquiry that a great part of  the portion remain unpay he in February prefer a cross bill against the  respondent insist that the say several benefit and present shall be apply in  discharge of the say portion and that the respondent deliver up the say bind  to he to be cancel the respondent by his answer to this cross bill absolute  deny that he cancel the bind or give they up to the brown appellant to be  cancel but affirm that he deposit they in the appellant hand in case he shall  miscarry in the war and to prevent their be put in suit against the appellant  when he shall be in no condition to discharge they both cause be at issue  witness examine and publication pass be hear on the that of February when the  court order that the chief remembrancer shall audit and state the account  between the party and report what payment or satisfaction have be make since  the article to the respondent or to any and what person and when and on what  account and also whether the encumbrance or any of they in the say article  mention be pay off and discharge and when and by who several matter appear  difficult to the say officer he on the that of June make a report consist of  several special point which come to be hear on the that and that of June and  afterward to be reheard on the that of February follow and it appear by one of  these special point that the appellant have pay the respondent and his  creditor several small sum amount to pound S d which the appellant insist  ought to go towards discharge the bind of pound Payable the last of August the  court be please to order the brown er p officer to inquire and ascertain when  the several payment in the say point be make by the appellant to the  respondent and whether there be any interest and how much due to the  respondent from the appellant at the time the say payment be make and in case  any interest shall happen to be due at the time of such payment the same be in  the first place to go in discharge of such interest and whatever the say  payment shall amount to over and above such deduction for interest the  overplus be declare to bear interest and when it shall appear that as much  interest become due to the respondent for the say portion the interest in  proportion of the payment make by the appellant to the respondent be to cease  and the value of the present make to the respondent and his lady by the  appellant be to be allow as so much money pay to the respondent and all other  point in the say special report as to the payment be to be under the some  direction and manner and method of account another of these special point  concern a allowance crave by the appellant for maintain the respondent lady  and daughter in France for three year and three month videlicet from July to  October and the same be open and debate it be order that the appellant shall  be allow pound per and for the maintenance and expense of the respondent lady  her child and servant for the time they be in France but that no interest  shall be allow for the same and it shall be bring in and stand at the foot of  the account when make up as a charge against the respondent But this point  come to be reheard on the that of November and the respondent brown insist  that he have do several service for the appellant and his family particular in  preserve his estate when he be in France procure a reversal of his attainder  and get a pass for he and his family to come over into Ireland the respondent  desire he may be consider for those service whereupon the court direct that a  issue shall be try at the bar of the say court by a jury of the county of the  city of Dublin to try what the appellant deserve for meat drink lodging and  cloth of the respondent daughter from July to October and also what the  respondent deserve for the service which he do for the appellant and his  family from the beginning of the year to the end of the year and the  respondent be to be allow whatever sum of his money shall appear to be in the  hand of Simon Kirwane at the time the respondent lady be in France pursuant to  this order a trial be have and the jury find that the appellant deserve for  the say maintenance pound and that the respondent deserve for his say service  pound and the cause come to be hear upon this verdict on the that of July the  court order that the respondent shall be allow the say sum of pound and that  the appellant shall be allow the say sum of pound both which sum be to be add  to and stand at the foot of the account to be make up in the cause and strike  out of the balance of the say account on the that of may the officer make his  report and thereby certify that about the saint of August Simon Kirwane the  appellant only son have livres of the respondent money in his hand which be  then worth about pound sterling and which sum accord to the order make on the  thirteenth point the officer allow to the respondent To this report the  appellant take exception and the report and exception be hear on the that of  July when most of the exception be overrule but in regard Mr Stanton the  appellant attorney offer to abide by the respondent answer to personal  interrogatory as to the livres it be order that he shall be oblige to answer  personal interrogatory as to those livres and that the appellant shall be  conclude thereby on the that of December the officer state the account and on  the saint of February follow the cause come to a final hear when the appellant  counsel make several objection to the report but be all overrule the court be  please to decree the appellant to pay the sum of pound S d with interest from  the time of confirm the report and with full cost and direct the officer to  compute the interest for the principal sum from the time of the last  calculation in his report to the time of confirm the same and to add it to the  say sum of pound S d and the respondent be to make up his decree for the same  accord from these several order and decree of the that of February that of  brown er p February that of July that of July brown and saint of February the  appellant appeal and on his behalf it be urge t Lutwyche c Phipps that it be  above twentytwo year from the time the respondent give up the bind to the time  of his make any legal demand of the portion and that consider this length of  time the circumstance of the case and the several transaction between the  appellant and respondent the court ought not to have decree any account to be  take but shall have dismiss the respondent bill that by the know method of  account in equity where money appear to be pay exceed the interest due on any  principal sum the overplus of the money so pay be apply to sink so much of the  principal sum then due but although it appear by the several report in these  cause that the appellant have pay pound S d when only pound principal can be  due and before any interest thereof be due yet by the method of account direct  by the order of the that of February and pursue in the report the pound be  keep entire and interest only give the appellant for such payment until the  interest of the pound discharge those payment and the interest thereof which  be in effect give the respondent interest upon interest for his stale demand  whereas such payment ought to have be apply in discharge of the principal then  due or the account shall have be keep separate and the appellant allow the sum  so pay with interest at the close of the account that the appellant ought not  to be charge with pound the value of the livres in Simon Kirwanes hand that  article not be give in charge or mention in the special report nor any  exception take by the respondent to that report for want of such charge or  ever mention in the cause till the order of the that of November beside Simon  Kirwane full prove that the same be transmit and pay to the respondent and his  lady that the appellant ought to have have a allowance of the pound expend on  the respondent lady from to from October with interest for the same from that  time it appear that the same be then expend and therefore the order of the  that of July direct the same to be place at the foot of the account without  any interest ought not to have be make that if the appellant be to be charge  with the pound for the livres in Simon Kirwanes hand he ought not to be charge  therewith from August but in such case the same ought at least to be deduct  out of the pound allow to be expend on the respondent wife from to that the  order confirm the report of the that of December be apprehend to be contrary  to the form of the court and against the rule of equity the sum therein report  due be more than the penalty of the unsatisfy bind give up neither do the  order of the that of June decree more than that the say bind shall bear  interest as if they have not be give up and cancel and the court have order  that the respondent child shall not be affect by the allowance make to the  appellant amount to pound S the appellant brown ought to be allow the same  against the respondent in the usual way of account that interest at pound per  cent be decree for the pound for twentynine year and a half which ought to  have be moderate in regard the respondent make no legal demand for twentytwo  year and because in the year interest be reduce to pound per cent that by the  order of the saint of February full cost be decree against the appellant  whereby the respondent and his agent have it in their power to load the  appellant with excessive charge that full cost be never decree but where the  party commit manifest fraud or make a unconscionable defence which the  appellant have be no way guilty of on the contrary it appear in the progress  of these cause that twelve out of the fifteen special point and also the  several rehearings and exception be occasion by the respondent refuse to allow  the several payment make by the appellant and which be afterward adjudge for  he except the particular now complain of and therefore the appellant insist he  ought not to be charge with cost at least not with the distinction of full  cost on the other side it be say S mead c Talbot to be clear that the  marriagearticle remain in a great measure unperformed on the part of the  appellant in who a confidence be thereby repose to apply the portion in  discharge of the encumbrance on the estate which be to be settle to the use  mention in the article but which it be not pretend he have do that as the  appellant be to brown er p lie out the portion in redemption of the mortgage  of which his daughter and the issue of the marriage as well as the respondent  be to have the advantage he can not in justice apply the trivial sum lend to  the respondent for some of which he take the respondent note and the rest he  charge to his account in his book in discharge of the say portion that Simon  Kirwane be the appellant only son and agent and manager for he in France and  it appear by Simon be book that he charge what sum or effect he pay or receive  from the respondent to the appellant account that the appellant in his answer  swear that he furnish the respondent with a account of all the payment make in  part of the portion in but nothing concern the respondent wife maintenance  appear in that account nor do the appellant by his say answer insist on any  allowance for such maintenance on the contrary say that neither he or his lady  ever charge it to the respondent account or even intend to mention it have he  not be provoke by the respondent usage of he for which reason as well as  because the respondent lady and daughter go to France upon the invitation of  the appellant lady and be detain there three year against the respondent will  the respondent apprehend that he have more reason to complain of any allowance  at all have be make to the appellant on that head than the appellant have to  complain that the allowance be no large that the respondent do not ground his  demand upon the bind which be brown a collateral security only but prefer his  bill against the appellant to compel he to perform his trust accord to the  marriagearticle and it be by the appellant neglect and a great misfortune to  the respondent that the interest of the portion have swell to so large a sum  as to the reduction of interest in Ireland the act pass for that purpose  relate only to money lend from the year but do not affect the interest of any  security enter into before that time that though the appellant be entrust by  the article to apply the portion in redeem mortgage affect some particular  land which be to be settle on his own daughter and though the respondent have  often apply to he to execute that trust yet the appellant so far from comply  with these reasonable request have oblige the respondent to commence a suit  against he and by frivolous delay have keep the respondent at law for upward  of nine year and therefore be just condemned in full cost of the suit accord  after hear counsel on this appeal it be order and adjudge that the same shall  be dismiss and the order and decree therein complain of affirm and it be  further order that the appellant shall pay to the respondent the sum of pound  for his cost in respect of the say appeal jour vol p