case arthur houghton appellant and west widow and other respondent that march  Mews dig I xi where a bill of review be file for reverse a former decree and  beside specify error in the decree contain original matter and be file without  leave it ought not to be set aside for irregularity for under these  circumstance it shall be consider as a cross bill the manor town and land of  burn Lismur and other land in the barony of Ardagh in the county of Longford  be sequester on account of the Irish rebellion in be by the act of settlement  vest in king Charles two for the use of the several officer and adventurer who  have serve he and his royal father and George Houghton senior the appellant  grandfather have purchase debenture and place they on these land he in Hilary  term file a information in the court of exchequer in Ireland and obtain  judgement thereon and a custodiam of the land under the yearly rend of S and  become possess thereof accord and a commission have afterward issue for remedy  defective title Houghton exhibit his claim before the commissioner who decree  letter patent to be make out of all the premise to he and his heir on payment  of pound which he accord pay but before these letter brown patent be pass king  Charles two die and king James two his successor not only put a stop to they  but by other letter patent grant the say manor and land to colonel William see  by who ancestor they have be forfeit and who be afterward attaint of high  treason on account of the rebellion in George Houghton senior afterward die  leave his son George the appellant father a infant under the guardianship of  Philip savage esquire who prefer a petition on behalf of the infant to king  William III state his title to the premise and pray relief and have obtain a  reference to the then attorney general of Ireland and a report from he in  favour of the title a new custodian be grant to savage in trust for the infant  who have by virtue thereof get into possession of the premise he petition the  king for letter patent to be grant thereof to the say George Houghton junior  and his heir which petition be refer to the lord justice and by they to the  attorney general he make his report in favour of the petitioner but lady see  the mother and guardian of sir Joseph see have get intimation of this report  prefer a counter petition on behalf of her son state his claim to the same  land and obtain the common reference to the attorneygeneral however before any  further proceed be have the contend party come to a agreement and by a write  article date in December lady see and Mr savage on behalf of their ware agree  that if either of they shall make out a title to the premise on a claim before  the trustee for sale of the forfeit estate and obtain a decree thereon one  moiety of the premise shall be in trust for the other and his heir and that  the person obtain such decree shall convey such moiety to the other and his  heir and that if no grant shall be obtain of the premise before the saint of  November then next sir Joseph see shall enjoy a moiety thereof under the  custodiam which have be grant to savage in trust for George Houghton junior by  other article date the that of August between sir Joseph see who be then of  age and the say Philip savage and George Houghton who be still a infant it be  mutual agree that if either of they obtain a grant of the premise the same  shall be as to one moiety in trust for the other of they and sir Joseph agree  that if his claim shall be allow and the premise decree to he he will at any  time after convey one moiety thereof to George Houghton and his heir and it be  likewise agree that George shall grant a lease of his moiety to sir Joseph for  year from the saint of may at pound a year and for the performance of these  article on the part of sir Joseph he enter into a bind in the penalty of pound  sterling sir Joseph see prosecute his claim before the trustee who think  proper brown er p to allow it and decree that he shall hold the premise to he  and the heir male of the body of Thomas see his grandfather but sir Joseph  refuse afterward to perform brown the article his bind be put in suit  whereupon he file a bill the court of chancery in Ireland impeach the article  and pray a injunction this occasion Houghton to file a cross bill against sir  Joseph for a specific performance of the article sir Joseph in his answer to  this bill set forth a settlement that he have make in in consideration of his  marriage with mary Percival whereby the premise be limit to himself for life  remainder to mary his wife for life remainder to the first and other son of  the marriage in tail male and say he hope the court will not enforce the  performance of a voluntary agreement to the prejudice of so many fair  purchaser on the discovery of this settlement Houghton file a supplemental  bill against all the party claim under it charge the same to be voluntary and  make with notice of the article and the cause be at issue and witness examine  be hear on the that of February when the court decree that the article of the  that of August shall be establish and specifical perform by the party thereto  and this decree be afterward enrol sir Joseph see by lease and release date  the that and that of march convey one moiety of the premise to George Houghton  and his heir and covenant to levy a fine and suffer a common recovery thereof  which be accord do and George Houghton execute a lease of such moiety to sir  Joseph his executor administrator and assign for year from the saint of may at  the yearly rend of pound in February George Houghton sell and convey his  moiety of the premise subject to sir Joseph Tuites lease to George west  esquire for pound sterling and covenant in the usual manner that he have a  good title etcetera and that west shall hold and enjoy free from disturbance  by indenture of lease and release date the d and d of October George west in  consideration of a intend marriage with the respondent Ann and of her marriage  portion convey the say moiety to trustee and their heir to the use of himself  for life remainder to the respondent Ann for life for her jointure remainder  to the first and other son of the marriage in tail male with other remainder  over on the saint of December George west die leave the respondent Ann his  widow and the respondent James his only son and heir whereupon the widow  become entitle to the rend and reversion of the premise as her jointure and  she accord receive the rend from sir Joseph see till September when he die  leave the respondent sir Henry see his only son and heir and have make his  will and appoint Richard Malone and Thomas magan esquire executor thereof  there be a considerable arrear of rend due to the respondent Ann out of the  premise she in Trinity term bring her ejectment in the court of exchequer in  Ireland to which the respondent sir Henry appear and take defence and the  cause be try at the bar of that court in easter term the respondent Ann prove  her case and make out her title but brown sir Henry prove and insist on his  father marriage settlement in the court be of opinion that sir Joseph see be  thereby only tenant for life have no power to make any conveyance of the  premise to George Houghton and that therefore the respondent Ann be bar and  direct the jury to find a verdict against her which they accord do in December  George Houghton die have make his will and thereby devise his manor of  Bourmont in the county of Wexford to the appellant his second son and the heir  male of his body when he shall attain twentyone upon condition that he shall  pay pound sterling to the testator other young child and he appoint his wife  Euphemia and Nicholas Loftus esquire afterward Lord Loftus and Francis annesly  esquire executor on the d of June the respondent Ann and James west file their  bill in the court of exchequer in Ireland against the appellant and the  respondent sir Henry see and against Richard Malone and Thomas magan the  executor of sir Joseph see Euphemia Houghton Francis annesly and Nicholas  Loftus the executor of George Houghton and also against James Houghton his old  son and heir state the several matter aforesaid and pray that the executor  heir brown er p or devisees of George Houghton may be compel to make  satisfaction for the say reserve rend of pound a year and for the value of the  reversion and inheritance of the say premise or that the executor or heir of  sir Joseph see may make satisfaction for the same and for a account of the  real and personal estate of sir Joseph and the say George Houghton to this  bill the several defendant put in their answer and thereby admit the article  and bind in the decree for performance of those article the conveyance and  lease in pursuant to that decree and the payment of rend by sir Joseph see  till his death in but the respondent sir Henry insist upon the settlement make  by his father in and that he be entitle to the premise by virtue thereof the  defendant Malone admit that he have prove sir josephs will and possess some of  his asset but insist that they be in no wise liable to the satisfaction of any  of Houghton covenant with George west sir Joseph be in no kind of privity as  to any of the transaction between they and the appellant and mrs Houghton and  Mr Loftus insist that they have not any notice of the trial in ejectment on  the that of may this cause be hear when the court decree that the chief  remembrancer or his deputy shall take a account of the real and personal  estate of George Houghton at the time of his death and of the yearly value of  one moiety of the manor of burn and the other land comprise in the lease from  he to sir Joseph see and that the bill shall be dismiss as against the  respondent sir Henry see with cost and as against the executor of sir Joseph  without cost brown the remembrancer make his first report on the that of April  and therein state the value of George Houghton real and personal estate and  certify that one moiety of the manor and land comprise in the lease from he to  sir Joseph see be of the clear yearly value of pound but exception be take by  the appellant and his mother to this report and some of they allow the report  be refer back and on the d of may a special report be make as to several  payment make out of the personal estate of George Houghton and this report  certify that George Houghton die in December seize in fee of the manor of  Bourmont of the yearly value of pound and that he devise the same to the  appellant when he shall attain twentyone he pay pound to his young brother and  sister that the appellant attain twentyone in August and have ever since be in  the receipt of the rend and profit thereof and have pay the pound that these  rend and profit from the saint of November to the saint of may inclusive  amount to pound S and from the saint of may to the saint of may inclusive to  pound and that the same come to the appellant hand on the that of July the  cause be hear upon this report when the special matter be rule for the  defendant and the payment out of the personal estate allow in preference to  the plaintiff demand but the plaintiff counsel pray a issue to ascertain the  value of one moiety of the land evict at the time of sir Joseph Tuites death  it be order and decree that a feign action shall be commence by the plaintiff  against the defendant on the follow issue videlicet what be the value of one  moiety of the manor town and land of burn Lismur etcetera at the time of the  death of sir Joseph see to be sell to the best bidder this issue be accord try  at the lend assize for the county of Longford when the appellant not appear  the jury find that one moiety of the say manor and land at the time of sir  Joseph Tuites death on the that of September to be sell to the best bidder be  worth pound and a certificate of this verdict be file it be on the that of  April order that the same shall be confirm unless cause show to the contrary  in four day but instead of show any cause the appellant together with his  mother and Mr Loftus on the that of April prefer a petition of rehear and  obtain the common order thereon upon make the usual deposit this order however  the respondent Ann and James west move to discharge for surprise and  irregularity and after much debate on this motion it be on the d of June order  that the petitioner shall be at liberty to rehear the cause upon payment of  all the cost incur both at law and in equity since the decree in a week after  service of a tax bill of cost and that unless the cost shall be pay in that  time the order for rehear shall be discharge the cost be tax by the proper  officer at pound brown er p S d and a copy of the bill so tax be duly serve  and on the that brown of December follow it be order that the order of the d  of June shall be make absolute and the rehear discharge without further motion  unless good cause shall be show to the contrary on the first day of the then  next Hilary term and no cause be show the order be on the that of February  make absolute and the rehear discharge accord on the that of June the cause be  hear upon the report the judge certificate of the verdict and the merit when  the report be absolute confirm and the respondent Ann and James west be decree  to have pound sterling be the sum find by the verdict to be the value of one  moiety of the premise and it be order that the remembrancer shall compute  pound a year from the that of September to that day in lieu of interest for  the pound be the rend reserve upon the lease grant to sir Joseph see and the  computation be accord make it amount to pound S and make the whole sum pound S  and it be further order that pound part of the asset of George Houghton in the  hand of his widow shall be by her pay to the respondent Ann and James west  towards payment of the say pound S and that pound S the residue of that sum  with legal interest for the same and pound S d for their cost of the suit  shall be and remain a charge on the manor of Bourmont the real estate of the  say George Houghton of which he die seize in fee and shall be pay by the  appellant in six month and in default of such payment the say respondent be to  be at liberty to apply to the court the appellant and his mother neglect to  obey this decree the usual process of contempt issue against they when mrs  Houghton think proper to comply so far as relate to her by pay the pound the  respondent Ann and James west therefore on the d of February file their bill  against the appellant in order to carry the last decree into execution and to  have the say manor of Bourmont sell for payment of their principal interest  and cost thereby decree to they to this bill the appellant put in his answer  and on the that of June follow he without leave of the court think proper to  file a bill of review and reversal but which he call a cross bill only insist  upon several error in the two former decree and pray that they may be review  and rectify and that the respondent Ann and James west may either be restore  to the possession of a moiety of the premise or may have a satisfaction for  their demand out of the real and personal asset of sir John see the say  respondent have inadvertent obtain a order for time to answer this bill the  court afterward give they leave to withdraw it and on the saint of December  they move that the bill of review may be set aside for irregularity as contain  new matter and yet file without leave which the court be please to order  accord the appellant however on the that of January follow file a new bill  pray the same relief as before with a addition that this birthright be take as  a cross bill to this bill brown the respondent Ann and James west put in their  answer insist upon the benefit of the former decree and proceed in the same  manner as if they have plead they in bar and on the that of may they obtain a  conditional decree in their new cause against the appellant for sale of the  say manor of Bourmont and on the that of July follow this decree be make  absolute but to prevent the effect of this decree the appellant appeal from  the two former decree of the that of may and the that of July and the several  other order and proceed contend W Murray a Hume Campbell that the agreement of  August as it exact pursue and conform to the prior agreement of so it proceed  upon good and valuable consideration be express make for accommodate matter in  contest between the party and for obtain a grant which sir Joseph do thereby  and can not otherwise obtain that it be not only valid in its commencement as  a agreement but be confirm by sir josephs subsequent conveyance and complete  by a fine and recovery to Houghton and that sir josephs acceptance of a lease  from he execute a counterpart and pay the reserve rend under it till his death  render the interest of Houghton indefeazible by any subsequent act of sir  Joseph or those claim under he that the pretend settlement of have the strong  mark of fraud for sir Joseph be in possession under the agreement and the  prior right and possession of Houghton brown er p be notorious to everybody  the two first limitation in that settlement be to the use of Diana see and sir  Joseph see the one of they the party execute the agreement of the other a  party to the agreement of and the principal trustee be a subscribe witness to  this latter agreement that beside these circumstance of notice and fraud the  decree of effectual establish and order a specific performance of the  agreement of upon sir josephs own bill for set it aside and in opposition to  this settlement which be rely on and put in issue in that cause by sir Joseph  himself and by the trustee who be bring before the court on Houghton  supplemental bill this decree sir Joseph complete obey and as it have never  since be impeach it be now a conclusive judicial determination not only in  favour of the agreement but against the validity of the settlement so far as  it vary from that agreement and this alone be a sufficient foundation for the  court to have decree the respondent sir Henry see to have restore the  possession to the respondent the Wests and to have account to they for the  tent that if Houghton afterward enter into warranty with George west he have  the same prior engagement from sir Joseph to himself for the support of his  own title and the warranty to Houghton be not less Obligatory upon the heir  and executor of sir Joseph than the warranty from himself west be Obligatory  upon his own heir and executor that the eviction of Ann west be tortuous and  not by legal title they have therefore no right to recover against Houghton  for a breach of covenant as he can have no remedy brown over for a recovery in  value against the representative of sir Joseph see upon a entry where the  right be or can be try and it will be extreme hard to conclude Houghton by a  trial to which he be neither party or privy and when no proper measure be take  by the Wests to recover the possession nor be the respondent sir Henry compel  to assert his pretend right as he ought to have be but even suppose there have  be a breach of covenant yet the compensation be proper pray by the bill of the  Wests against the representative of sir Joseph see all proper party be before  the court the bill require no satisfaction or relief against the  representative of Houghton but only that they may put the pound bind which  have be take in the name of George Houghton in suit against the representative  of sir Joseph and may assist the west in the recovery of the premise that the  court shall have decree the Wests a perpetual injunction find on the decree of  establish the article of against all person claim under the settlement of as a  equitable title convey to they on their purchase or if that can be doubt the  court shall at least have decree the Wests a satisfaction for the loss of the  purchase both out of Houghton and sir josephs asset and that on Houghton  representative make that satisfaction they shall have be at liberty to  prosecute the decree against the real and personal asset of sir Joseph see but  if the respondent the Wests be entitle to any satisfaction out of the manor of  Bourmont the court ought to have decree James Houghton the appellant elder  brother to have account for the profit or for the pound S receive by he  thereout during the appellant minority and he ought to have pay or at least  bear a proportional share of the charge induce upon this estate that the court  ought not to have direct any issue to try the value of the manor of burn as  the same appear to have be sell by Houghton to west in subject to a lease of  ninetynine year from may at the yearly rend of pound and though the real value  of the land have be ever so great yet west or any person derive under he can  not have be in any sort benefit thereby during the lease of which there remain  near fifty year to come and the respondent the Wests be only entitle to pound  a year for the residue of the ninetynine year term and to the value of the  reversion at the expiration of that term the make they a compensation as  decree accord to the value of the inheritance in with interest from thence be  not agreeable to the contract with George west neither ought the court to have  dismiss the appellant petition for a rehear because it appear that George  Houghton be innocent and that sir Joseph see be the person guilty of the fraud  and breach of covenant in the article of August and the conveyance of march  and there be great reason to believe that the heir and executor of sir Joseph  concur in strip the respondent Ann and James west of the possession of the  premise and therefore the appellant conceive he be brown er p entitle to all  the indulgence which a court brown of equity can give consistent with the  security of those respondent that the court by order the appellant cross bill  to be take off the file deprive he of a material part of his defence to the  bill file by the Wests in February which may have arise from their answer to  his cross bill and which bill the court ought to have consider as a cross bill  not as a bill of review and reversal and the Wests have once submit to answer  that bill by obtain a order for time ought not to have be permit to retract  such submission at anytime afterward for the respondent Ann and James west it  be argue W Noel king Evans that their original bill be bring to recover a  satisfaction in damage for a breach of covenant by George Houghton the  appellant father and testator and to be pay the same out of his real and  personal asset and as the several decree and order make in that cause have  direct such satisfaction to be make out of those asset in a just and equitable  manner the decree and order be just and agreeable to the rule of law and  equity and therefore ought not to be reverse or alter that the respondent be  not only entitle to receive such satisfaction out of the asset of George  Houghton under his covenant but as the proper representative both of his real  and personal asset be all party in the cause the court be bind in justice to  make the decree they have make and not to turn the respondent Ann and James  west upon the asset of sir Joseph see for George Houghton pay no consideration  as a purchaser to sir Joseph for the conveyance make to he but become entitle  to it mere under a voluntary agreement for divide the premise in question and  how far the person stand in the place for George Houghton can entitle  themselves to any remedy or relief for a breach of covenant enter into with he  for quiet enjoyment be a question which the respondent the Wests who be  purchaser for a full and valuable consideration and be entitle to a short and  easy remedy under his covenant be not compellable to sustain and I especial in  case or favour of a I meet volunteer claim under his will but suppose the  remedy to be clear and easy in that respect yet sir Joseph see may have leave  no asset or if he have it may be attend with great delay and expense to follow  those asset and if the respondent can be entitle to any relief against they  the appellant as stand in the place of George Houghton who take the conveyance  from sir Joseph see must be more clear entitle to a satisfaction for any  damage which he may sustain by a breach of the covenant enter into by sir  Joseph and therefore he will be entitle to recover over against sir josephs  estate a satisfaction for any damage he may sustain by be oblige to make the  respondent such satisfaction as be direct by the decree that the respondent be  purchaser for a valuable consideration under the marriage settlement of George  west who be likewise a purchaser for a valuable consideration from George  Houghton but the appellant be mere a volunteer and stand in the place of  George Houghton the covenanter can have no equity to retard brown or vary the  respondent remedy against or out of the asset of Houghton if however the  appellant have any such case as will entitle he to turn the respondent the  Wests upon the asset of sir Joseph see to receive a satisfaction thereout in  case of the asset of George Houghton yet he have no bill file or cause bring  on to hear which can enable the court to make any such decree and upon the  respondent bill no other decree can have be make than what be make for though  the respondent have bring the representative of sir Joseph see before the  court and pray relief against they yet that be do mere from a apprehension  that George Houghton may not have leave asset and ought to be no ground for  turn they upon the asset of sir Joseph see on behalf of the respondent sir  Henry see it be insist r Henley c York that he be and ought to be consider as  a purchaser of the premise in question for a valuable consideration and  without notice under the settlement of may make upon the marriage of his  father and mother and have the legal estate vest in he by that settlement  which be prior to any conveyance allege to have be make to the appellant  father that sir Henry be not bind nor ought to be any way affect by the decree  of he be no party thereto though he be then bear and which be a fact know to  the appellant father at the commencement of the suit in which that decree be  make be disclose by the answer to the brown er p original bill as be also the  settlement of that neither the appellant father or grandfather have real any  right to or any just ground to claim the manor and land in question before the  time of sir Joseph Tuites be draw into the article and bind which be  fraudulent and unfair obtain without any real or valuable consideration that  there be no foundation to decree sir Joseph Tuites asset either real or  personal to be apply in satisfaction of any breach of covenant between George  Houghton and George west as sir Joseph be neither a party or privy to those  covenant or any of the transaction to which they relate nor ought the  respondent the Wests to have attempt it by their bill and that the several  order of the d of June the that of December and the that of February be just  and proper and the appellant ought not to have be at liberty to rehear the  cause after so long a acquiescence since make the decree but upon the term of  pay the subsequent cost which the party have be put to the respondent Anthony  and Edward Malone who be the executor of Richard Malone the survive executor  of sir Joseph see insist c Pratt t jewel upon the justice of the decree and  proceed complain of upon the same ground as the respondent sir Henry see and  that the appeal so far as it relate to they ought to be dismiss with cost it  be upward of ten year since the decree of may be make and great part of sir  Joseph Tuites asset have be since pay away in a course of Administration brown  after hear counsel on this appeal it be order and adjudge that the decree of  the that of may and the order of the that of July shall be affirm and as to  the order of the that of April that of may and d of June relate to the  application for rehear the cause it be declare that there be not a sufficient  foundation for the court of exchequer to require the appellant to pay within a  week all the cost incur in equity and at law since the decree as the term of  grant such rehear but that it will have be sufficient for the court to have  require the appellant to give security for or submit to pay the say cost in  case the decree shall have be material vary upon such rehear but consider the  subsequent proceed and that the appellant have appeal to the house against the  decree which be now affirm their lordship aid not think fit to reverse those  order and it be further order and adjudge that the order of the saint of  December for set aside the appellant bill exhibit on the that of June shall be  reverse it appear that the say bill beside such part thereof as pray a review  and reversal of the former decree and order be also a original bill pray  relief for the appellant against the respondent sir Henry see and the  representative of sir Joseph see and it be further order and adjudge that all  the other order and proceed complain of in the appeal shall be affirm jour vol  p