case edward wingfield appellant richard WHALEY Respondent that march Mews dig  thirteen where a contract have lie dormant for many year and nothing do by  either party in pursuance of it a court of equity ought not to decree a  specific performance viner vol p note to can vol p can Eq can ab note to can  can by indenture date the that of April foliot Wingfield esquire afterward  Lord viscount powerscourt in consideration of a marriage between he and the  lady Elizabeth his wife old daughter of Roger earl of orrery and for other  consideration therein mention covenant to levy a fine inter alian of the manor  of Benburb in the county of Tyrone to the use of himself for life remainder to  the first and every other son of the marriage in tail male remainder to the  say foliot Wingfield in tail male general remainder to Lewis Wingfield the  appellant father in tail male general with other remainder over and a fine be  accord levy of the premise in easter term follow on the that of January the  say foliot Lord viscount powerscourt demise the say manor of Benburb to  Richard chapel esquire for twentyone year from the saint of may then next at  the yearly rend of pound for the first three year and pound per and for the  remainder of the term and chapel make lease thereof to several under tenant at  a very considerable advance rend the say Richard chapel by his will date the  saint of January devise the benefit of this lease to the respondent upon trust  thereout to raise pound for the testator sister and niece and then the  remainder and benefit of renewal to go to the respondent and he make mary his  wife executrix in November chapel write a letter to the lady powerscourt  desire a new lease for a further term and offer to pay whatever shall be think  reasonable by way of fine or advance and much about the same time some of the  under tenant to who he have agree to grant new term have apply to he for a  renewal of their lease he tell they that he himself have not renew his own  lease and do not know that he ever shall on the that of march chapel die but  just before his death he acquaint his wife that he have make her executrix of  his will and declare that he think the pound leave to his sister and niece too  great a charge on the say manor of Benburb and therefore direct her to pay  pound which he brown have by he in ready money towards discharge of part  thereof in case of the respondent who be to pay the remain pound and after  chapel death the respondent have free access to his write and paper and  frequent search and examine the same in October the respondent make a proposal  in write to Lord powerscourt offer to pay pound per and for the say manor from  the expiration of the lease then in be and application for the same purpose be  make in the respondent favour to his lordship by the under tenant of the manor  and also by mrs chapel and one Mr Dawson who marry her niece and mrs chapel in  one of her letter tell his lordship that Mr chapel have devise the lease to  the respondent in expectation of his lordship kindness and say she hope in  case brown er p his lordship have any objection to the respondent that she may  claim the preference provide she have the respondent consent without which she  will not make the least offer but Lord powerscourt come to the knowledge of  great waste and destruction commit by chapel and the respondent in wood of  considerable value grow on the demise premise be for that reason unwilling to  accept the offer make on the respondent behalf or to grant he a new lease and  have about the same time receive proposal from other person and particular  from Mr Thomas Richardson who be the fair bidder a treaty be set on foot with  he whereof the respondent have notice and during such treaty videlicet in  November Mr Richardson offer the respondent pound for his interest in the say  manor but the respondent insist positive on pound allege that there be about  two year of his term then unexpired that the clear profit over and above the  reserve rend amount to pound per and and that he value his tenantright at  pound but Mr Richardson refuse to give the pound conceive the respondent  tenantright to be precarious and of no value in consequence of this treaty  with Richardson Lord powerscourt on the that of December execute a lease of  the say premise to he for year to commence from the saint of may follow at the  yearly rend of pound whereupon on the that of October the respondent exhibit  his bill in the court of chancery in Ireland against Lord powerscourt the say  Thomas Richardson and other state the lease make to chapel in and that before  the year Lord powerscourt agree that chapel shall hold the say manor for year  or three life to be nominate by he his heir or assign after the expiration of  the say former lease under the same yearly rend and that Lord powerscourt  shall allow chapel pound per and for maintain a school and six acre of land  with a house and garden for maintain a schoolmaster and that the tenant of six  village adjoin to the premise which Lord powerscourt hold by lease from the  archbishop of Armagh shall brown grind their corn at the mill of the say  manor that chapel about three day before his death have tell the respondent  that Lord powerscourt have contract with he for a renewal and that Richardson  have notice of such contract and therefore the bill pray a injunction to stay  proceed at law and that Lord powerscourt may be compel to execute a lease to  the respondent accord to the say contract Lord powerscourt by his answer to  this bill confess the lease in but deny that he ever make any such agreement  or contract with chapel for renewal and Richardson by his answer deny that he  have any notice of such agreement or contract at or before the execution of  the lease make to he on the that of November the respondent file a  supplemental bill and for new matter allege that a contract be find among Mr  chapel paper under Lord Powerscourts hand and seal date the that of November  whereby it be agree that chapel after the determination of the former lease  shall hold the say manor with the appurtenance for year or during the natural  life of such three person as shall be nominate by he under the yearly rend of  pound and that the tenant of the say six village shall grind at the say manor  mill Lord powerscourt after a view and perusal of this allege contract put in  his answer and deny that any such deed or contract for renewal be ever execute  by he and Mr Richardson deny that he have any notice thereof before his take  the say lease on the that that and that of July the cause be hear when the  Lord chancellor order the follow issue to be try by a jury of the county of  Monaghan 1st whether the deed date the that of November be the act and deed of  the Lord powerscourt or not dly whether Richardson have notice at or before  his take the say lease from Lord powerscourt that chapel or the respondent  have any further interest than the lease for year commence at may afterward  Lord powerscourt on affidavit of the value of the land move that the issue may  be try at bar and the rather for that by the deposition of the respondent  witness it appear that the say contract if genuine be execute brown er p in  Dublin but the court order the issue to be try at dundalk in the county of  Louth at the next assize which be to be hold on the that of the same month so  that twelve day only be allow to prepare for a trial of such consequence the  issue be accord try and the jury find the contract for renewal to be the Lord  Powerscourts act and deed on the evidence of mean person who swear only to  similitude of hand but that Richardson have no notice at or before the take of  his lease on the that of June Lord powerscourt move for a new trial and some  affidavit be read to show there be great brown reason to believe that the say  deed of the that of November be forge but the court refuse to grant a new  trial on the that that and saint of January the cause be hear on the equity  reserve when the court take time to consider of the matter until the d of  February follow but in the mean time Lord powerscourt die without issue on the  d of February at night upon who death the premise come to the appellant as  heir male of the say Lewis Wingfield however on the say d of February the  court decree that the Lord powerscourt shall perfect a lease to the respondent  pursuant to the contract but as to the say Thomas Richardson it be order that  the bill shall be dismiss and the injunction dissolve and this decretal order  be accord draw up and pass as of the d day of February the respondent on the  that of June exhibit a bill of revivor against the appellant as heir at law of  the say Lord powerscourt set forth the former proceed and pray that the say  suit so abate and all the order and proceed have therein may stand revive  against the appellant to this bill the appellant put in a answer and plea  state by his answer that Lord powerscourt die the day before the decree be  pronounce and as to that part of the bill which pray that the cause may be  revive against he he plead the say indenture of the that of April and the fine  levy thereon and that by virtue thereof the appellant upon the death of Lord  powerscourt without issue become seize of the premise as a remainder man in  tail and not as heir at law to Lord powerscourt on argue this plea on the that  of June the Lord chancellor order the same to be overrule and that the cause  shall stand revive against the appellant which order be afterward on the that  of November follow affirm by the then commissioner for hear and determine  cause in the absence of the Lord chancellor in easter term the say Thomas  Richardson bring a ejectment in the king bench in Ireland for the say land and  obtain a verdict and judgement against the respondent and the respondent have  bring a writ of error in the king bench at Westminster the say judgement be  there affirm the respondent have dismiss his say bill of reviver he on the  that of July bring a original bill against the appellant and the say  Richardson set forth the proceed in the former cause and that he be advice he  can not proceed on the say bill of revivor in regard the appellant claim under  a settlement and not as heir by descent and further set forth that the lease  make to Mr Richardson be in trust for the appellant and therefore pray that he  may have the full benefit of all the proceed have in the cause against the  late Lord powerscourt in his lifetime and may be at liberty to make use of the  plead deposition and other proceed therein and may also have the benefit of  the say decree and a account brown of the value of the land and of Lord  Powerscourts personal estate to this now bill the appellant put in a answer  and plea to the same effect as his answer and plea to the bill of revivor save  only that by this answer the appellant admit he have sufficient asset of Lord  powerscourt in his hand on the that of November this plea come on to be argue  when it be order that the same shall stand for a answer and that the benefit  thereof shall be reserve to the hear of the cause the cause be at issue  witness be examine on both side and by the concur testimony of several witness  as well as from many strong circumstance in the cause there be great reason to  suspect the reality of the allege brown er p contract of the that of November  and good ground to believe that the hand of Lord powerscourt have be   and the  cause come afterward to be hear on the that of January before the Lord  chancellor the appellant counsel offer to read several new proof take in this  cause against the validity of the say allege deed of November but his lordship  refuse to admit any such new proof allege that the verdict find in the  lifetime of the Lord powerscourt be Obligatory on the appellant and therefore  his lordship be please to decree that the appellant shall execute a lease for  three life of the premise to the respondent pursuant to the say article of the  that of November and that the say Thomas Richardson and the appellant shall  account with the respondent for the rend reserve upon the lease make to  Richardson over and above the rend Payable by the respondent from the  commencement of the say lease and that Richardson shall from time to time  account with and pay to the respondent his heir and assign the surplus rend  reserve on the say lease over and above the pound Payable by the respondent  and decree cost against the appellant but dismiss the bill as to the set aside  Richardson lease without cost by a subsequent order of the that of April it be  refer to a master to prepare and settle the draft of a lease to be execute by  the appellant pursuant to the say decree which draft the master accord settle  and thereby the appellant be make to covenant that the respondent shall enjoy  the demise premise free and discharge from all lease and encumbrance  whatsoever from this decree and all the other order the appellant appeal  insist r Raymond S mead that in a cause of such consequence the trial ought to  have be at bar and by a jury of the proper county and that a new trial ought  to have be grant as the contract insist upon be liable to several objection  and appear suspicious from many circumstance and positive oath beside this  contract if any such real exist be voluntary and without consideration lie  dormant for many year and be never brown insist in by Mr chapel with who it be  suppose to have be make and therefore the appellant plea ought to have be  allow and the bill in consequence to have be dismiss that the respondent by  his new bill admit that the proceed in the former suit be abate by the death  of Lord powerscourt and can not regular be revive against the appellant and  therefore those proceed so abate can never serve as a foundation for decree a  specific performance against the appellant who do not claim either as heir or  representative of the Lord powerscourt that the respondent have bring a  original bill against the appellant and witness have be examine on both side  the appellant ought to have have the benefit of the deposition take in this  cause and the new evidence against the validity of the allege contract ought  to have be admit that the court may judge whether there be not sufficient  ground to direct a new trial that the appellant ought not to be bind by the  verdict find against Lord powerscourt in his lifetime and though the contract  have be free from all suspicion yet a specific performance thereof ought not  to have be decree against the appellant who do not claim by descent from Lord  powerscourt but under the deed and fine of and the rather because a specific  execution be in this case become impracticable through the fault of the  respondent who let the suppose contract lie dormant without give Mr Richardson  any notice thereof though the treaty between he and Lord powerscourt be carry  on with the respondent privity so that there be no reason for a court of  equity to interpose but the respondent ought to have be leave to seek his  remedy at law against Lord Powerscourts representative who have sufficient  asset and it be humble apprehend that there be no reason to decree a specific  performance even against Lord powerscourt but that the respondent ought to  have be send to law to recover his damage against he in a action of covenant  on the say allege deed or article and therefore it be hope that the several  order will be reverse and the respondent bill dismiss on the other side it be  say t Lutwyche c Talbot that the trial be in the long vacation that Lord  powerscourt have occasion great delay and be in a very decay condition and  that for these and other reason the court be induce to put the cause off till  the then next assize that the jury be so far from be of a improper county that  the county first name be alter to the county of brown er p Lowth upon the Lord  Powerscourts petition and as to a new trial there be no colour to grant one  the contract be prove in the most consistent and plain manner by many witness  of fortune and undoubted reputation and the verdict remain whole unimpeached  except by the affidavit of one brown which be in itself and from undoubted  proof inconsistent and impossible to be true that this contract be not  voluntary but enter into on very valuable consideration videlicet the building  a bridge a school house and many other house and make other brown improvement  on the premise beside a advance rend of pound per and and the consideration of  these building and improvement have be perform to the value of pound neither  do this contract lie dormant for many year for it be not to be perform till  may and within five month afterward the respondent exhibit his bill for a  discovery of it not have then find the same but this inconsistency can not be  wonder at when it be observe that chapel be complain of for not insist on the  contract though he be dead eight year before any one can or at least need to  have insist on it that if the appellant have claim as heir at law the bill of  revivor will certain have be proper but as he claim under a voluntary  settlement the respondent be oblige to proceed by original bill in the nature  of a bill of revivor and it be conceive that the verdict and decree against  Lord powerscourt ought to bind the appellant who come in under a voluntary  settlement make by his lordship and expectant upon a estate tail limit to he  whereas the respondent testator be a purchaser for a valuable consideration  that the deposition in the cause be use on both side except such as tend to  set aside the verdict as to which the court object have with great care and  justice and extraordinary cauction examine as to that point before the verdict  be confirm and therefore will not allow a instrument so prove and establish to  be again draw into question by a new examination that whoever claim under a  voluntary settlement be bind by any lease sale or mortgage execute after such  settlement by the person who make it and as a decree against a person make a  voluntary settlement will bind he claim under it so will a verdict also and  especial where as in the present case the person against who the verdict be  obtain be tenant in tail and where the settlement itself be dormant and  conceal and as to a specific performance it be so far from be impracticable  that it be high just and reasonable for Richardson lease be for year and the  respondent for three life be not inconsistent the lease for life be a great  interest in law and what may probable survive the other it be therefore in  such case absolute necessary to entitle the respondent to the surplus rend  during Richardson lease and to the land after the expiration of it and if the  respondent be content with such a execution of the agreement the appellant  have no reason to complain especial since he be Lord Powerscourts  representative in every capacity as heir at law and under the settlement and  as sole executor and residuary legatee beside the respondent conceive he have  a right in equity to the land and ought not to be put to seek a satisfaction  in damage out of the asset of Lord powerscourt for the breach of this  agreement and therefore it be hope that the decree will be affirm and the  appeal dismiss with exemplary cost but after hear counsel on this appeal it be  order and adjudge that the order and decree of the d of February brown the  that of November and the that of January and that of April complain of in the  say appeal shall be reverse and that the respondent bill in the court of  chancery in Ireland shall be dismiss jour vol p brown er p