case John Putland and other appellant sir walter burrow respondent that April  Mews dig ringtail tenant for life make a mortgage in fee pretend to be seize  in fee the mortgagee not have notice of the settlement be not bind decree of  the Irish chancery reverse the point above state do not appear to have be  determine as no proof of the settlement under which the mortgagor be allege to  be tenant for life only be adduce the decree direct issue to be try to  determine this question and the reversal of it appear to have be make on the  ground state in Filkin v hill this work title issue can that no issue ought to  be direct to try a matter not full put in issue in the cause bro p c sir  Kildare burrow be seize in fee of the manor town and land of Castletown omy in  queen county and of the town and land of grange melon and Giltown in the  county of Kildare in Ireland with their several subdenominations and  appurtenance do together with his wife dame Elizabeth by deed of lease and  release date the that and that of June in consideration of pound real and good  fide pay to he by Thomas Putland grandfather of the appellant John grant and  convey all and singular the say land and premise to the say Thomas Putland and  his heir subject to a proviso for redemption on payment of the say pound and  interest at pound per cent per and by sir Kildare burrow his heir or assign at  the end of seven year from the date thereof in which deed of release be  contain covenant for levy fine and suffer common recovery and make further  assurance and other usual covenant and both deed be witness by Robert  Johnstone afterward one of the baron of the exchequer in Ireland and  brotherinlaw to the say sir Kildare burrow fine and recovery be accord levy  and suffer of the premise to the use in the say deed of release mention the  say Thomas Putland be so seize of the say mortgage premise do on the marriage  of Thomas Putland his old son the appellant John father with the appellant  jane who be the daughter of John rotton in consideration of that marriage and  of a considerable marriage portion receive with her by deed of lease and  release date the that and that of August grant and convey the say premise  inter alian to John rotton and brown Edward ryly and their heir to the use of  the say Thomas Putland the son for life remainder to his first and every other  son on the body of the say jane to be beget and the heir male of their body  with other remainder over but subject to a proviso that if the mortgagemoney  shall be pay the some shall be lie out by the trustee in the purchase of land  to be settle to the same use sir Kildare burrow afterward pay several sum of  money in part of the interest of the say mortgage and continue in the  possession of the mortgage premise till his death which happen in march leave  the respondent sir Walter his son and heir who after his father death likewise  pay some money at several time in part of the interest of the mortgage but  there be a very considerable arrear due Thomas Putland the son on the that of  January exhibit his bill in the court of chancery in Ireland against the  respondent sir Walter dame Elizabeth his mother and also against John lion who  claim the land of grange melon part of the mortgage premise by virtue of two  lease under the yearly rend of pound per and and pray that brown er p the  money due upon the mortgage may be pay or that the equity of redemption of the  respondent sir Walter may be foreclose sir Walter who be then a minor and the  say John lion answer the bill joint and the respondent sir Walter by his  guardian admit that his father have borrow money from the appellant  grandfather and have execute such mortgage as in the bill state and that the  estate be come to he but insist that his father have make some settlement of  the premise upon he and do not know whether the same be subject to the  mortgage and the say John lion insist on his lease of grange melon part of the  say mortgage premise the respondent sir Walter have attain his age and lion  have pen the suit assign over his interest in the premise to sir John saint  leger one of the baron of the exchequer the appellant John father on the d of  January exhibit a supplemental bill against the respondent and baron saint  leger for a discovery of what pretend settlement be make of the premise by the  respondent father and when to who and on what condition the same be make and  insist that if he have make any settlement on the respondent his son and heir  the same be voluntary and can not affect the mortgage or the then plaintiff  title thereto he be a purchaser for a valuable consideration without notice of  any settlement and he likewise insist that whatever settlement be make the  same be bar by the fine levy and the recovery suffer upon the execution of the  mortgage and therefore pray that the respondent may either redeem or be  foreclose the respondent on the that of August put in his answer to this bill  and thereby insist that the mortgage premise brown be by some deed prior to  the mortgage for a valuable consideration settle upon he in remainder and that  his father have no power to make such mortgage nor be the respondent in any  manner liable to the payment of the money so borrow he be by such settlement  only tenant for life of the mortgage premise but whether the several use by  the say settlement limit be bar by the fine and recovery he submit to the  court the baron also put in his answer to the bill insist on the assignment of  the lease to he from lion the appellant father have reply issue be join in the  cause and rule for publication pass but no witness be examine for the  respondent either to prove the pretend settlement or any copy or notice  thereof though he apply for and obtain a commission to examine his witness the  then plaintiff however prove the execution of the mortgage and the settlement  make upon his marriage and on the saint and d of February the cause be hear  before the lord commissioner for hear and determine cause in the absence of  the Lord chancellor when it be decree that the then plaintiff Thomas Putland  and the respondent sir Walter burrow shall go to a account before the master  and that baron saint leger shall account for the rend of such part of the  mortgage premise as be hold by he and all party be to have just allowance and  after the master report the court will consider whether the appellant father  ought not to have his cost and will make such further order as shall be just  pursuant to this decree several proceed be have before the master upon the  account thereby direct and when the master be ready to make his report the  respondent petition the Lord chancellor set forth that he be inform his father  sir Kildare burrow have upon his marriage enter into article for settle the  mortgage premise whereby he be to be only tenant for life that after the  marriage take effect settlement be make pursuant to the say article that  subsequent to that settlement his father have borrow pound from Thomas Putland  for which he mortgage the premise to he that Thomas Putland his son have bring  his bill against the respondent to redeem or be foreclose and that though the  respondent have by his answer insist that his father have no power to mortgage  the premise yet not be able to prove it a decree be pronounce against he but  be now inform that the say Thomas Putland have notice of the say article and  settlement before the money be lend and that he do not doubt to prove the  execution of the say article and settlement he therefore pray that the cause  may be reheard which be order accord at the same time the respondent file a  bill of discovery against the say Thomas Putland the appellant John father  state that upon his father marriage with brown er p the respondent mother  brown article be enter into whereby the mortgage premise be to be settle upon  the respondent father for life remainder as to part to the respondent mother  for life remainder to the first and every other son of that marriage in tail  male with several other remainder over and that pursuant to the say article  after the marriage take effect a settlement be make accord that Thomas Putland  who lend the respondent father pound upon a mortgage of the say premise and  his agent have notice of the say article and settlement before any money be  lend and that the same be deliver to the mortgagee to be by he cancel that  Thomas Sisson who be agent for the mortgagee in a answer to a bill exhibit  against he during the respondent infancy have admit notice of such article and  that he have see the same that John rotton have copy thereof deliver to he and  full notice of the same before the intermarriage of his daughter with the  appellant John father that the say Thomas Putland the son and the trustee in  his marriagesettlement have before the marriage notice of the say article and  settlement and therefore pray that the defendant may discover the same and  that the say answer may be make use of at the rehear of the original cause to  this bill the say Thomas Putland put in his plea and answer and by his answer  deny that he at any time before his marriage or that the say John rotton or  any trustee in his marriagesettlement to his knowledge or belief have any  notice or intimation of the article make on the marriage of the respondent  father or of any settlement make pursuant to such article nor do he ever hear  or believe there be any article enter into whereby the respondent father be to  be tenant for life of the premise with remainder over to his first and every  other son but insist that if sir Kildare burrow have make any settlement limit  the premise after his death to the respondent in tail the same be voluntary  and can not affect the mortgagee who be a purchaser without notice for a  valuable consideration and have a good right thereto both at law and in equity  he also deny the charge in the bill from Sissons answer for that Sisson swear  the article contain no limitation to the issue of the marriage and be make  after marriage and as to so much of the bill as pray a discovery of any  article or settlement or copy thereof or any deed relate to the mortgage  premise and to bring the same into court he plead his marriage settlement and  that he be a purchaser for a valuable consideration without notice to he or  any person act for he on his say marriage this plea be argue on the that and  that of July and it be insist that though the defendant deny any manner of  notice or intimation to he or his trustee or that they see the say article yet  it be charge that the defendant wife father have a copy of the article deliver  to he before brown the marriage of the defendant the defendant shall have deny  that fact it be therefore order that the defendant shall amend his say answer  and plea but the respondent have petition for and obtain a rehear of the say  order the same be reheard on the that of November and the plea overrule the  respondent however never proceed far in that suit nor insist upon a far answer  from the appellant father though he live near five month after the plea be  overrule before any further proceed be have in the cause the say defendant  Thomas Putland die on the saint of march leave the appellant John his son and  heir by the appellant jane but before his death he make his will and thereof  appoint the appellant jane and dr HeIsham executor who prove the same the  appellant the executor be entitle to all the arrear of interest of the  mortgage due at the death of their testator and the appellant John to the  principal money thereby secure by virtue of the settlement upon his father  marriage they in April file their bill of revivor against the respondent and  also against baron saint leger the bishop of clogher who be executor of John  rotton decease and mary ryly the executrix and James ryly the son and heir of  Edward ryly who be the survive trustee of Putlands marriagesettlement pray  that the proceed may be revive and that the appellant as be entitle to the  mortgage money and interest may have the benefit of the say decree in and to  have a account of the mortgage money and the interest thereof that the arrear  of interest due in the lifetime of the say Thomas Putland may be pay to the  appeal brown er p lants jane and Richard that the principal money may be lie  out at interest to the use of the say settlement and that the trustee may  either act in the trust thereof or assign the same as the court shall direct  the respondent answer and insist on the marriage article make upon his father  sir Kildare burrow marriage with sir Walter mother Elizabeth date the that of  February and upon a settlement date the that and that of February and that sir  Kildare have no power to make such mortgage the appellant reply to avoid this  answer be take for true but give notice that no witness will be examine on  their part in regard to all that be insist on in the respondent answer to the  last bill have be in issue in the former plead before the decree but the  respondent examine Robert Johnstone who be a subscribe witness to the mortgage  deed and also one Robert Dixon as to the execution of the article and  settlement who only swear that they have hear that some article be enter into  before sir Kildare marriage but neither of they ever see they brown and that  sir Kildare tell Johnstone they be not execute till after his marriage though  they bear date before publication have pass this cause come to a hear on the d  and that of December and although objection be make by the appellant counsel  to the read the deposition take on behalf of the defendant in that cause  because they be examine to a matter which be in issue before the decree and  although no proof have be make or even attempt to be make of notice to the say  Thomas Putland or any other person act on his behalf before the settlement of  the premise in question upon his marriage yet the follow issue be direct to be  try by a jury of the county of Kildare videlicet whether any and what deed of  settlement be execute by sir Kildare burrow in of the land in the mortgage in  the plead mention or any of they in pursuance of any and what article or for  any other and what consideration and what be the use of such settlement and if  any such deed or article be execute to who the same or either of they be come  and whether Thomas Putland sen Thomas Putland jun or the trustee in the  settlement make on the say Putland junior marriage or any person or person  that transact the marriage of the say Putland jun with the daughter of John  rotton decease or any and which of they have notice of such article or  settlement at the time of the say marriage or at any other time and when from  this last decree and also from the order for rehear the cause the appellant  appeal insist c Wearg t Lutwyche that it be admit that the appellant John  grandfather real and good fide lend the respondent father pound at pound per  cent interest which be pound per cent less than the then common interest in  Ireland that for secure the repayment thereof the mortgage in question be  execute and that this sum with a great arrear of interest remain unpay the  appellant therefore as a honest creditor without notice be entitle to all the  assistance of a court of equity to compel payment of the money so lend and the  same ought to have be decree accord that the mortgage premise be before the  intermarriage of the appellant John father with the appellant jane and  inconsideration thereof and of a marriage portion convey to trustee to the use  of the appellant father for life with remainder to the first and every other  son of that marriage so that the appellant John father be a purchaser of the  premise in question for a valuable consideration and therefore ought to have  the benefit thereof in order to recover the money real due unless it be plain  prove that the mortgagor have no title to convey and that the appellant father  have notice thereof before the settlement for as to the appellant John it be  impossible that he can have notice he be then unborn that the respondent by  his answer to the original bill bring by the appellant father and also to the  supplemental bill insist that his father be only tenant for life of the  mortgage premise by settlement for a valuable brown consideration and have  therefore no power to mortgage the same but though publication be at his  desire frequent enlarge and a commission grant to examine witness yet no proof  of such settlement be make wherefore a decree pass in favour of the appellant  father and consequent there be no reason afterward to direct a issue to try  whether such article or settlement be execute that after publication be pass  the cause hear a brown er p decree pronounce and a bill of revivor bring upon  the death of one of the party it seem to be a matter of very dangerous  consequence to allow a defendant to adduce evidence to support the fact of his  answer which be substantial the same as what he have former insist upon and be  full put in issue in the original cause but to which he have examine no  witness therein and it be the more extraordinary in the present case because  the two witness since examine by he namely Mr Johnston and Mr Dixon be not  only his uncle but intimate acquaintance from who he may have have the same  discovery in the first cause and who no doubt may have be then examine have  there not be some private reason for delay such examination till after  publication be pass especial since it appear by the respondent own bill that  he be inform of these transaction long before they be all charge in a bill  bring by he against the appellant grandfather and Sisson in the year and  though they both answer that bill and insist that these two witness be privy  to the mortgage and all the transaction relate thereto yet no far proceed be  have in that cause nor any attempt make to examine these witness till after  the death both of the appellant grandfather and father and of Sisson also who  transact the mortgage in question but even these witness do not prove the  article insist upon by the respondent or that either of they be witness  thereto or ever see the original article or any copy of they but only say that  they have hear article be execute and that they be deliver up to the mortgagee  and cancel that though both the witness refer to the answer of Sisson as the  reason of their belief touch the article and the delivery thereof to the  mortgagee yet they plain differ from the answer itself both as to the nature  of the article and the delivery of they to the mortgagee for the article as  Sisson set they forth be only a provision for the present maintenance of  Kildare and his lady during the life of sir Walter his father and for a  jointure for the lady but contain no limitation to the issue of the marriage  and be in fact execute after the marriage that it seem very strange to leave  it to at jury to try the limitation of use in article of which no copy be  produce and neither the original or any copy prove to be extant nor even a  single witness examine who ever see they that the direct a issue to try  whether the appellant John father have any notice of these article be  apprehend to be contrary to the usual course of proceed in a court of equity  when the party on who notice be pretend brown express upon oath deny have have  any notice and where not the least proof be make to falsify that answer nor  any attempt make to prove such notice and it be apprehend that if the  appellant John father have no notice of the article all the other inquiry will  be fruitless and to no purpose it be therefore hope that the decree of the  that of December will be reverse and that the respondent shall be decree to  redeem the appellant or be absolute foreclose on the other side it be contend  p York c Talbot that the appellant not have think fit to proceed on the  decretal order off February or to revive the suit in which that order be make  but have exhibit a original bill and the appellant John claim under the  settlement make upon his father marriage the respondent be well entitle to  examine witness in this last cause and the rather because the appellant join  issue by reply to the respondent answer and because no witness be examine in  the other cause before the say decretal order that cause have be bring on to a  hear without the respondent knowledge or privity who be then in England and  though a counsel open his answer at the hear it be without his knowledge or  direction that it be apprehend not to be unprecedented to try the limitation  and substance of a deed of which there be no copy extant and it seem to be  very just and reasonable to do it in this case there be strong proof that the  article and settlement come to the hand of the appellant grandfather and that  he destroy they that the loss of estate be not a necessary consequence of lose  deed for evidence may be give of they though no copy be extant that it be  agreeable to the know rule of equity to direct issue to be try concern matter  of fact where any doubt remain with the court and such issue be often direct  upon very slender proof that if a title thus contest shall be give away  without trial because the deed or copy of they be not extant many marriage  settlement may be in danger of be de brown er p stroyed by the same practice  which have be use in this case as the needy father of a family by thus get  deed into his custody may to answer present necessity agree to cancel or  destroy they and thereby ruin his family beside great regard ought to he have  to the respondent be a infant of only eight year old when the mortgage be make  that the infancy of the appellant John be conceive not to very considerable in  this case as he be only seek to reap the benefit of a wrong do by his  grandfather which however it may affect his estate as have covenant to make  good the mortgage upon the settlement thereof on his son marriage yet ought  never to fall on the respondent estate that fair creditor can never be hurt by  the order make in this cause and to shake settlement in general for the sake  of dishonest creditor who to carve out a good security to themselves be  capable of a combination to suppress or destroy deed which stand in their way  brown ought never to be countenance in any cause or upon any consideration  that to direct this trial at law will be no injury to the appellant if in  truth there never be any article or settlement and if there be it may be very  injurious to the respondent and his family not to do it and therefore it be  hope that the decree will be affirm and the appeal dismiss with cost but after  hear counsel on this appeal it be order and adjudge that the say decree of the  that of December shall be reverse and that the former cause and proceed  wherein Thomas Putland the appellant John father be plaintiff and the  respondent sir Walter burrow be defendant shall stand revive and that the  appellant shall have the benefit thereof and it be further order that the say  court of chancery shall cause a account to be take pursuant to the decree of  the d of February of what be due for principal and interest upon the say  mortgage and that the say court shall likewise cause cost to be tax for the  appellant in the original cause and on the bill of revivor and that if the  respondent shall pay or cause to be pay what shall be so compute and report  due for principal interest and cost at such time and place as shall be point  by the say court of chancery the appellant shall at the respondent charge  reconvey the mortgage premise to such person as be entitle to a redemption  under the mortgage deed but in default of payment of the say principal  interest and cost at the time and place to be appoint as aforesaid the  respondent shall be absolute foreclose of all equity of redemption of the say  mortgage premise and it be further order that the say court of chancery shall  give proper direction in pursuance of this judgement jour vol p