case sir edward leighton appellant William leighton and other respondent d  march after two trial at bar by direction of the court of chancery and both  verdict the same way equity will grant a perpetual injunction and decree upon  the right find by the verdict decree of Lord chancellor Parker affirm the  follow more ample statement of this case will no doubt be satisfactory the  defendant father mortgage and afterward sell land to b his brother the  plaintiff the respondent in the house of lord upon his death the defendant the  appellant set up a old entail create about year before and get into possession  the plaintiff bring a ejectment and a verdict pass for the defendant the  plaintiff at law bring his bill set forth that the write be all in the  defendant hand and pray that they may be produce and that the defendant may  not set up a title under any trustterm and decree by Lord Cowper that the  trial shall be upon the mere right in a ejectment and that no trustterm  mortgage or lease shall be set up but that the defendant shall make title only  under the entail upon such trial it be find again for the defendant but the  judge certify against the verdict a three trial be have at the bar of the  exchequer in which a verdict be find for the respondent the original plaintiff  and after that by order of the court of brown er p chancery another trial on a  feign issue be have at the bar of the court of b r upon the ground that in a  case so long litigate it be hard to conclude the defendant by one verdict on  this trial also a verdict be find for the respondent on the equity reserve it  be pray that the plaintiff shall have a perpetual injunction with cost Lord  chancellor Parker observe that he do not see what that court have be do in  direct trial and order write to be produce unless it shall grant a perpetual  injunction which after so many trial seem to be for the benefit of both party  see Eq ab c in the report in stram the precede case No of bath e v Sherwin  appear to have be quote as a precedent action of ejectment be now become the  usual mode of try title at the commonlaw judgement in those action not be in  any degree conclusive the court of ordinary jurisdiction admit at least for a  certain time of repeat attempt to litigate the same question court of equity  have brown therefore assume a jurisdiction to put a end to the oppression  occasion by the abuse of this privilege and by grant perpetual injunction to  restrain further litigation have in some degree impose that restraint in  personal which be the policy of the commonlaw in real action see Mitfords  treatise p Eq ab can in n the reason of a ejectment be never final be not lie  down in the general book on that subject but be thus ingenious state by a very  elegant modern writer that it be impossible from the structure of the record  in that action to plead a former in bar of another ejectment bring because the  plaintiff and defendant be nominal and exist in most case on record only and  consequent may be change in a new action but the identity both of plaintiff  and defendant must be aver in plead a former action in bar the term demise may  be lie many different way Eunomus vol p p win Eq can ab can viner vol p note  to can stram sir Edward Leighton the appellant father and the respondent elder  brother by indenture of lease and release date the that and that of December  in consideration of pound convey the manor of Baulsley and diverse land in the  county of Montgomery to the respondent William Leighton and his heir and  covenant to levy a fine but no fine be levy it be think altogether unnecessary  as it be the constant reputation in the family that sir Edward and his  ancestor have for several generation be seize of the premise in fee by virtue  of this conveyance Mr Leighton enter into possession and by indenture of lease  and release date the d and d of October he convey this estate to trustee and  their heir to the use of himself for life without impeachment of waste and  then to the intent that a annuity of pound may be raise and pay to Dorothy his  wife for her life pursuant to article enter into before their marriage and  subject to this annuity to the use of his own right heir in April sir Edward  Leighton the vendor die leave the appellant his old son and heir who thereupon  claim to be entitle to this estate under a old entail say to be make the that  Charles I and accord bring a ejectment to recover possession but upon the  trial of this ejectment at the assize for the county of Salop in August the  appellant fail in the proof of such old entail be nonsuit however upon his  counsel represent to the court that it be a cause between very near relation  and that it be the earnest desire of their client to live for the future at  peace with his uncle the defendant consent to forgive he the cost accord a  juror be withdraw and the defendant continue in possession as before but  notwithstanding this indulgence the appellant prevail upon most of the tenant  to attorn to he which oblige the respondent to bring his ejectment and on the  trial thereof at the great session hold for the county of Montgomery in  September the appellant again set up the former entail but find the court of  opinion against he on that point he brown er p set up another entail say to  have be make by John Leighton one of his ancestor that Henry VIII and this be  a matter of surprise upon the respondent who be quite unprepared to give any  answer to it the ancient deed and write relate to the premise brown be in the  appellant custody the jury find a verdict for the appellant whereupon the  respondent William Leighton find himself under the necessity of pray the aid  of a court of equity but before a bill can be prepare for that purpose he  discover that some part of the premise be not include in this pretend old  entail wherefore he bring another ejectment against the appellant in order to  recover the same and on the trial of this ejectment at the assize hold for the  county of Salop in march the respondent get a verdict for that part in  December follow the respondent exhibit his bill in chancery against the  appellant pray a production of all deed and write in his custody or power  which in any wise concern the premise in question that the tenant who have  attorned to he may be enjoin from pay he any rend and that the respondent and  the rest of the tenant may be quiet in their several possession the cause be  hear on the that of may before the Lord chancellor Cowper a mutual production  upon oath be order of all deed and write before the master that both party  shall be at liberty to see and peruse the same and try their title at law and  that the defendant sir Edward shall not on such trial insist on any title but  under the old entail that Henry VIII nor shall the plaintiff insist on any old  lease or that the title be in any three person but only on his deed of  purchase in consequence of this decree another ejectment be bring and try at  the assize at Shrewsbury on the that of July when the appellant insist on the  say old entail by his ancestor John Leighton and the respondent on the other  hand offer to produce a parchment copy or counterpart and also a paper office  copy of a inquisition take post death Thomas Leighton on the d of August d  Elizabeth whereby it be find that the say Thomas Leighton be seize in fee of  the say manor of Baulsley etcetera and that be so seize he convey the same to  trustee for ten year to commence after his death for the payment of debt and  raise child portion but the judge be of opinion that this be not legal  evidence the respondent suffer himself to be nonsuit without offer any other  evidence upon the judge promise to certify the cause of such nonsuit this  matter be afterward disclose to the court of chancery a order be make on the  that of November that the bill shall be retain and on the that of march follow  another order be make for a production of the deed and write on the next trial  soon after the last trial at Shrewsbury videlicet on the d of September there  be a trial at Montgomery between the appellant and some of the leaseholders of  the manor but upon this brown trial the title never come in question some of  they suffer judgement by default and those who make any defence insist only  that the appellant have confirm their lease by his acceptance of rend but  which they not be able to make out a verdict be obtain against they on the  that of August the cause come on again to be try at Shrewsbury when contrary  to the direction of Mr baron price who try it a verdict be find for the  appellant but the court of exchequer in which court the ejectment be bring  upon a representation of the whole evidence by Mr baron price concur with he  in opinion that the verdict be contrary to evidence and therefore set it aside  and direct a trial at the bar of that court accord on the that of November  this trial come on when the appellant make title under the say old entail  insist that John Leighton one of his lineal ancestor by deed of feoff bear  date the that of may that Henry VIII convey to Thomas Dudley and several other  person and their heir inter alian the say manor of Baulsley etcetera to the  use of the say John and Joyce his wife and the heir of their two body that  this entail have never be cut off and consequent that he be lineal descend  from the say John be entitle to the premise in question as heir under the say  entail brown er p to this title some material objection be make on the part of  the respondent as that the say old deed of entail be no otherwise prove than  by the traverse of a inquisition post death the same John take so long ago as  the Henry VIII and by a inquisition find post death eduvardi son the same John  take in the Elizabeth and that this deed have never be hear of or use on any  other occasion but in those two instance to defeat the crown of its wardship  it be then prove that the appellant ancestor from the very time of make this  pretend entail have all along act as tenant in fee of the premise in question  and have from time to time make such conveyance and lease thereof great number  of which be produce as be inconsistent with the power of a tenant in tail and  in particular that John himself act as tenant in fee of the manor after the  make of this settlement and that Thomas his grandson by deed date the that of  October Elizabeth convey this manor to trustee for a term of ten year to  commence after his death and by his will date the that of August Elizabeth  charge that term with the payment of several legacy and annuity and be so  positive of his power to make such a charge that have by his will charge  several other estate with the payment of other legacy he add that if it shall  fall out that by law he can not charge they then the say manor of Baulsley  shall be charge likewise with the payment of those other legacy and it be  further prove that the fine and recovery for the county of Montgomery where  the say manor lie have be keep in a damp vault under the church at Wrexham in  so careless a manner that several brown of they be quite moulder away and  those that remain at least till the reign of queen Elizabeth be so deface as  not to be legible and so confuse that it be almost impossible to find out any  fine or recovery upon this evidence and after a trial of twenty hour by a  special jury of the county of Salop a verdict be find for the respondent  agreeable to the opinion of the court but the appellant soon afterward apply  to the court of chancery for a new trial and though nothing be offer to  impeach the last verdict yet insist that in a cause which have be so long  litigate he ought not to be conclude by one verdict the court on the that of  may think proper to direct another trial to he have at the bar of the court of  king bench in a feign issue and by a special jury of the county of Middlesex  and the issue agree upon be whether the say sir Edward father of the appellant  at the time of make the say conveyance be seize in feesimple or feetail of the  premise in question this issue be accord try on the that of may when the same  evidence be give and the same argument use on both side as at the last trial  another verdict be find for the respondent in consequence of this second  verdict the cause in chancery come on to be hear upon the equity reserve by  the decree of the that of may on the that of November when the Lord chancellor  Parker be please to decree a perpetual injunction against the defendant sir  Edward Leighton that he shall forthwith deliver possession of the premise in  question to the plaintiff and account with he for the rend and profit thereof  and bring in before the master upon oath all the deed and write in his custody  or power relate thereto and that each party shall bear his own cost of that  suit but that the defendant shall pay the plaintiff the cost of the last trial  at law from this decree the defendant appeal pray that the same may be reverse  but before assign any reason in support of the appeal he state and answer  several objection which the respondent have make to some of the verdict in his  favour as saint that the first and second trial be have before the respondent  have obtain a order of the court of chancery for leave to peruse the deed and  write in the appellant custody to this it be answer that the respondent do not  discover any new evidence by the perusal of the appellant deed and write  except a copy of the will of Thomas Leighton which make more against the  respondent William than for he for the method of keep the record of fine be a  matter of a public nature and the respondent have always in their custody  several lease make by the appellant ancestor for a term of year exceed the  power of a tenant in tail beside the lady Leighton who be real concern in  interest in all these trial have the custody of all the appellant deed and  write on the death of brown his father and by that mean have a opportunity  brown er p of inspect and conceal such marriage settlement and other deed as  she may think inconsistent with her interest to deliver over to the appellant  dly it have be object that two of the ejectment be bring not against the  respondent but against other tenant of the manor to this it be answer that the  same title be in question the same defence make and the same attorney and  counsel employ and the appellant be by the decree order to account for the  profit of the land recover on such trial so that it be plain to be consider as  one and the same cause dly another objection be that in the ejectment try at  Salop assize before Mr justice Eyre the respondent be nonsuit for want of a  office copy of a inquisition post death thomae Leighton but to this it be  answer that the respondent have never venture to give that inquisition in  evidence in any trial although there have be four trial since which show that  the want of it at that trial be of no consequence nor the cause of such  nonsuit and thly it be object that the last of the verdict in favour of the  appellant be set aside by the court of exchequer upon the certificate of the  judge before who it be try to this it be answer that the judge do not express  any dislike to the verdict when the jury bring it in that he have approve of a  like verdict for the appellant at a former trial upon the same title and the  appellant conceive he have great reason to complain of the set aside that  verdict since it be set aside after he have regular enter up his judgement  contrary to the practice of all the court in Westminster HallThe reason for  set aside this judgement seem to have be because it be enter up after a motion  in the court of chancery and leave obtain to move for a new trial and  therefore the court of exchequer be of opinion that the judgement be unfair  enter the reason offer in support of the appeal be that the appellant be  decree to account for the rend and profit of the estate in question and  deliver up the write belong to the same after so clear a title make out at law  and after have prevail in no less than seven ejectment to the satisfaction of  the several judge who try the same whereas the respondent have only prevail in  two trial neither of they with the concurrence of the court and the last which  be conceive to be the foundation of the decree contrary to the direction of  the court that it will be a precedent of very dangerous consequence to all  such family as enjoy estate in tail under marriage settlement which can only  be bar by a fine or recovery to be defeat by mere presumption ground on no  fact and inference deduce from very weak circumstance that as the respondent  Mr Leighton have no title at law so neither have he a better claim in a court  of equity for the appellant be a purchaser as well as he and under a  settlement make in consideration of marriage and at that time a considerable  portion paramount the brown respondent title and for a more valuable  consideration that the respondent be a purchaser with notice of this  settlement as full appear by his purchase deed in which there be a special  agreement to levy at fine of these land at the next grand session to be hold  for the county of Montgomery beside there be less reason for a court of equity  to decree the estate to the respondent Mr Leighton because the executrix of  sir Edward be very well able to make he amends for the loss of it and have  actual do so the dispute therefore in reality be between the heir in tail and  the executrix as be prove by the respondent own confession he have declare  that it be the concern of the executrix and that he have do with it that the  instance where perpetual injunction have be grant be very few and those few  instance have be where the title of the person in who favour such injunction  be grant have be confirm by many repeat and unexceptionable verdict but there  be no instance where a perpetual injunction have be grant against a heir in  tail who have support his title in seven several ejectment in favour of a  person who have never be able to obtain one single verdict in maintenance of  his title with the approbation of the court which try the cause and that by  this perpetual injunction the appellant will be deprive of the benefit of  insist upon any other title which he may have to the estate beside the  settlement of Hen VIII which be the only title that he have brown er p ever  yet insist upon and which he think and be advice to be sufficient until it be  avoid by proof of a fine or recovery on the other side it be contend in  support of the decree that the respondent William Leighton be a purchaser for  a full and valuable consideration that the premise have be settle by he on  marriage that his title after a very long examination have be establish in the  most solemn manner that there have be but one verdict against he since the  commencement of the suit in chancery which have be set aside as be contrary to  evidence and that there be two concurrent verdict in his favour on trial at  bar in two different court and by special jury of two different county after  hear counsel on this appeal it be order and adjudge that the same shall be  dismiss and the decree therein complain of affirm and a motion be make and the  question put that the appellant do pay or cause to be pay to the respondent  the sum of pound for their cost in respect of the say appeal it be resolve in  the affirmative jour vol pa