case John walker appellant joseph nightingale respondent that march Mews dig I  see sale of good Act and Vict c S a bring his bill for a allowance of a  certain sum of money as a commission upon the sale of good by auction where he  attend as a puffer to enhance the price of the good bill dismiss with cost the  demand be of such a nature as ought not to have any countenance in a court of  equity and equity will not suffer demand of a unfair nature to be set against  fair and just demand in a account and a crossbill for that purpose be dismiss  with cost the decree of the lord commissioner of the court of chancery be  affirm with pound cost Mr Fonblanque in his note to the treatise of equity c  observe that the practice of puff as it be call at auction be in Bexwell v  Christie Cowp consider as illegal but the legislature have since that case  enact that property put up to sale at auction shall upon the knock down of the  hammer subject the auctioneer to the payment of certain duty unless such  property can by the mode prescribe by the act be show to have be buy in by the  owner himself or by some person by he authorize this seem indirect to have  give a sanction to this practice which may material affect the authority of  the decision in walker v Gascoigne the case here report and the opinion in  Bexwell v Christie see morris v twine bro c b and stat Geo c which recognize  these puffer or bidder viner vol p can Eq ab can can cite in both book by the  name of walker v Gascoigne sir Robert nightingale who be many year resident in  east India return to England in August and both before and after that time to  his death he employ Francis chamberlain Esq to manage most of his affair which  Mr chamberlain do chief in his own name and have deal with the appellant he  entrust he with several money army debenture and other thing of sir Robert for  which Mr chamberlain take note in his own name from the appellant or his  servant before Mr chamberlain have settle any account with sir Robert  nightingale videlicet on the that of July sir Robert die have make his will  and thereof appoint Robert Gascoigne the brown respondent brother executor who  pursuant to the direction of such will take the surname of nightingale and  afterward die have make his will and appoint the respondent executor thereof  who duly prove the same and also take the surname of nightingale pursuant to a  clause in the same will soon after sir Robert death Mr chamberlain commence a  suit touch the validity of his will in the prerogative court of Canterbury  against the say Robert Gascoigne nightingale and after his death carry on the  same against the respondent until the that of February when the respondent  obtain a definitive sentence against chamberlain and a confirmation of the  probate former grant to the say Robert Gascoiane nightingale after which the  respondent apply to Mr chamberlain for a account of sir Robert effect come to  his hand have three note deliver he in part of such effect two of they sign by  the appellant and the other by David Karver his servant which note be in the  follow word videlicet I promise to pay unto Mr Fran chamberlain or his order  on demand four hundred pound London may value receive for self and comp John  walker pound receive may of captain Edward Arnold a warrant to clear good  amount unto the sum of eight hundred eighty three pound eleven shilling and  sixpence which I promise to be Accountable for on demand pound S d John walker  brown er p receive the that of June of Mr Francis chamberlain one hundred and  twelve pound five shilling and nine penny in a debenture for Mr John walker  per David Karver pound S d Mr chamberlain own upon the delivery of these note  that the money have be often demand of the appellant and be not pay because of  several demand make on sir Robert by the appellant which can not be adjust and  the respondent afterward demand satisfaction for such note from the appellant  he own the same be unpay but say sir Robert owe he more than the money come to  and be press for the particular of his demand deliver a account make sir  Robert estate debtor to he pound S d whereof S d be for commission at pound  per cent on account of good of sir Robert sell at the east India company be  sale and pound more for so much he pretend to have lose by two bale of muslin  he have at those sale bid very high for and which be therefore leave upon his  hand the appellant refuse to pay the note unless he be allow his demand and  the respondent not be able to bring a action at law in his own name he on the  that of July exhibit a bill in chancery against the appellant and Mr  chamberlain for a satisfaction of the money due on these note to which bill  the appellant put in his answer and thereby admit brown the note but insist  that in sir Robert have many muslin and calico to dispose of at a public sale  bid the appellant lie aside his other business and apply himself to that sale  promise to allow the appellant as customary in those case full commission for  the whole produce of such sale that the appellant thereupon undertake and go  through the management of the sale which amount in all to pound S d and his  commission at pound per cent to pound S d which commission he insist on  pretend that by his management of the sale he gain for sir Robert several  thousand pound and which he believe no other person will have do he also  insist on pound more as a loss sustain by two bale of muslin which he say be  sell at the risk and on the account of sir Robert and the rest of the pound S  d he say be due to he for wine and linen sell sir Robert and that he be  Willing to account for the money due on the note if the respondent will allow  his say demand but because great part of the appellant act and sir Robert  order be of a private nature and impossible for the appellant to prove but by  circumstance he therefore if the respondent refuse to allow they insist on the  statute of limitation in bar of the respondent demand on the that of April the  appellant bring a cross bill against the respondent and Mr chamberlain to be  pay the pound S d and also pound more pretend to be due to he for manage a  sale of other part of sir Robert good by chamberlain order and that the say  through note may be deliver up and cancel and in this bill the appellant open  and explain his pretend service say he be by sir Robert order to raise the  price of his good at the public sale by bid upon the buyer thereof and thereby  increase the value of such good and that the reason why the appellant be to  have pound per cent commission be for that if he outbid other he be to pay for  the good which be very hazardous and he set forth particular that at a sale in  sir Robert make sign to he to bid on two bale of muslin which he accord do and  lose pound by they which loss he also demand by his bill of the respondent  beside he pound S d for commission the respondent put in his answer to this  cross bill and on the that of October bring on his original cause to be hear  before the Lord chancellor Macclesfield who decree the respondent to pay  chamberlain he be only a trustee in the three note his cost to be tax and that  the master shall see what be due from the appellant to the respondent on the  say three note and compute interest for they and tax the respondent his cost  and it be further decree that the appellant shall pay the respondent the say  principal money interest and cost together with such cost as the respondent  shall pay chamberlain but the appellant then make default this decree as to he  be only unless cause brown the appellant have pay the cost of his default both  cause come to brown er p be hear together before the lord commissioner of the  great seal on the d of April who be please to confirm the former decree with  this variation only that the master shall compute interest on the three note  from the that of February and also take a account of what sir Robert  nightingale be indebt to the appellant for wine and linen and allow the same  in the account direct by the former decree but dismiss the cross bill with  cost declare they see no cause to relieve the appellant therein in pursuance  of these decree the master make his report on the that of November and thereby  certify that after a deduction of pound allow the appellant for his wine and  linen there remain pound os lid due to the respondent for principal and  interest on the note and for his cost in the original cause and this report be  afterward duly confirm and the appellant serve with a writ of execution of the  decree he pay the respondent the whole money but notwithstanding this payment  he soon afterward appeal from the decree insist c Talbot t Lutwyche that the  same be erroneous and ought to be alter and set aside in the particular and  for the reason follow that a allowance ought to have be make to the appellant  for the S d prove to have become due to he for his commission of pound per  cent on the sale of good for sir Robert nightingale account amount to the net  produce of pound S d be the usual and customary commission give to other in  all such case or at least it shall have be refer to the master to settle a  proper allowance that although the last deal between sir Robert nightingale  and the appellant be in and sir Robert live till July and during all that time  they be near neighbour in the country and the appellant frequent at sir Robert  house yet he never demand the money on any of the say note which afford a  strong presumption that sir Robert look upon those note as satisfy by the  service which the appellant have do he and it can not reasonable be presume  that sir Robert will let such a sum remain so long in the appellant hand if he  have not be conscious that the same be account for and satisfy by those  service for which the appellant never receive any other recompense than the  money contain in the say note and therefore it be conceive that the appellant  demand ought to have be allow or some reasonable compensation make he for his  trouble in sir Robert affair or that both party shall have be leave to their  respective remedy law that the appellant cross bill have be dismiss with cost  although it be the common practice of the court of chancery where there be  mutual account and deal between party for the defendant in the original cause  to exhibit a cross bill to have a satisfaction of his demand and the appellant  have a just demand upon the respondent which he refuse to allow as appear upon  the face of his own brown bill the cross bill be therefore proper and  necessary as well for a discovery as relief and ought to have be retain and  the appellant relieve in the manner thereby pray that by the decree the  appellant be order to pay the respondent not only his own cost but also the  cost which he be to pay the defendant chamberlain whereas it appear both by  the respondent bill and the evidence in the cause that the appellant be always  ready to come to a account with he on have a just allowance for his service  beside the appellant be so conscious of the justice of his demand that he  offer to leave it to the determination of any two indifferent person  conversant in the east India trade but which the respondent have refuse he  ought not to be allow cost if he shall be excuse from pay cost to the  appellant it be therefore hope that the decree will be reverse the appellant  bill retain and the money he have pay the respondent restore to he on the  other side it be contend p York n fazakerley that the demand of the appellant  even if he have prove as he have not that they be ground on any promise or  agreement of sir Robert nightingale be of such a nature as ought not to have  any countenance in a court of equity the service pretend to have be do for sir  Robert be no other than attend for a few day at the public sale where sir  Robert good be sell and by a fraudulent underhand contrivance enhance the  prince of those good by bid upon the buyer of they as if he have be a real  buyer himself and shall a court of equity decree a satisfaction brown er p of  such demand it will give sanction to a practice contrary to the faith of  public sale and be a injury to the fair and honest purchaser and therefore  ought to meet with the great discouragement that the appellant have make such  a unjust defence and seek by his cross bill a satisfaction of demand find upon  unfair practice and be moreover unable to make proof of any promise or  agreement of sir Robert it be but just to dismiss his bill with cost and  though he be thereby leave to seek his remedy at law yet it will not have be  reasonable to have send the respondent to law for recovery of a just and  uncontroverted debt and for which he can not maintain any action in his own  name the note be take in the name of Mr chamberlain and the respondent only  entitle to the benefit of then inequity the decree therefore be find on such  manifest justice ought to be affirm and the appeal dismiss with cost accord  after hear counsel on this appeal it be order and adjudge that the same shall  be dismiss and the decree order and proceed therein complain of affirm and it  be further order that the appellant shall pay the respondent pound for his  cost in respect of the say appeal jour vol p gold v Okenden brown PC er report  date brown case John gold and other appellant William okeden and other  respondent saint April Mews dig v seven where a purchaser take advantage of  the distress or ignorance of the vendor or of any particular authority over he  a court of equity may set aside the purchase as fraudulent even after the  purchaser death decree of the Lord chancellor king reverse ground and rudiment  of law and equity p by the name of gold v Morgan Bartholomew lane have a wife  and two daughter and be seize in fee of several message and land in Sembley  and Tisbury in the county of wilts and in Wimborne in the county of Dorset by  his will date the that of may direct that his wife shall enjoy his  dwellinghouse at Wimborne so long as she remain his widow and all the rest of  his real estate he give to trustee on failure of his own issue male in trust  for his two daughter in tail with diverse remainder over but by a settlement  make subsequent to this will date the that of march her settle his land in  Sembley and Tisbury on himself for life remainder to trustee for year to raise  out of the rend and profit pound per and for his wife for hold life remainder  as to one moiety to his daughter Susan and as to the other moiety to his  daughter Magdalen in fee in the lifetime of lane Susan his old daughter  intermarry with Robert Coker and after lane death Magdalen the young daughter  intermarry with William okeden Esq and by indenture of lease and release date  the that and that of August in consideration of that marriage and of pound pay  down as the marriage portion of Magdalen by her father executor okeden and his  father convey to trustee several estate of pound per and as to part to the use  of William okeden for life remainder to Magdalen for life for her jointure  remainder to the first and other son of that marriage in tail male remainder  to the heir male of the body of William okeden remainder to William okeden in  fee and as to the residue to the use of William okeden for life remainder to  trustee for year remainder to the first and other son of the marriage in tail  male remainder to trustee for year remainder to William okeden and the heir  male of his body remainder to the heir of the body of William okeden remainder  to William okeden in fee the trust of the year term be declare to be for raise  portion for young child in case of a son and other child but if there shall be  only daughter that term be to cease and the trust of the year term be declare  to be that in case William okeden shall die without issue male and leave issue  female the trustee be after his death to raise portion for such issue female  and particular if but one brown daughter pound but such portion be not to  become due unless such only daughter shall survive her father brown er p in  the year Bartholomew lane die whereupon the feesimple and inheritance of his  real estate except the dwell house at Wimborne be vest in the say Susan and  Magdalen his daughter in moieties and mary his widow have in intermarry with  one Draycott Susan and Magdalen become thereby seize in feetail of the say  dwell house in moieties Magdalen okeden die in July leave issue only one  daughter name mary whereupon the say William okeden become seize of a moiety  of all lane real estate as tenant by the courtesy and in June the say mary his  only daughter intermarry with William Glisson but this marriage be without the  consent of and displease to the father Glisson be very careless and  extravagant and have contract a debt of pound to one George Pashen for secure  the repayment thereof he and mary his wife by lease and release date the that  and that of December and by a fine convey to the say Pashen and one George  clarke and their heir the reversion of a undivided moiety of her grandfather  lane estate in trust by sale or mortgage to raise and pay the say Pashen pound  and interest and afterward in trust for the say William Glisson in fee William  Glissons debt increase and he be under a necessity of sell the say estate for  satisfaction thereof frequent application be make by he and his wife to  William okeden her father to purchase their reversionary interest and after  several treaty they agree at the price of pound in pursuance whereof by  indenture date the that and that of July execute by Glisson Pashen and clarke  recite the last mention indenture of lease and release and that Pashen and  clarke have not raise the pound and that Glisson want to raise other money and  have agree that the premise convey to Pashen and clarke shall for pound be  grant and convey to the say William okeden it be witness that in consideration  of pound S pay by okeden to Pashen and pound S pay by he to Glisson and S pay  to clarke Pashen and clarke at the instance and request of Glisson convey to  okeden in fee all the say premise convey to Pashen and clarke as aforesaid and  the say William Glisson thereby covenant against encumbrance except the say  William Okedens estate for life as tenant by the courtesy and also covenant to  make further assurance William okeden be so seize of the say premise and of a  considerable real and personal estate on the that of January make his will and  thereby devise his personal estate and particular part of his real estate to  the respondent Walter Hussey and bind and Joshua Churchill decease in trust to  be apply in payment of his debt and legacy and the pound to be raise by virtue  of his marriage settlement and he devise brown the residue of his real and  personal estate to his say trustee for the benefit of the respondent William  and Edmand okeden his natural child successive in tail male with remainder to  his own right heir on the that of September William okeden the testator die  leave mary Glisson his only daughter and heir at law who die in January leave  the appellant mary and Magdalen and one son who afterward die a infant and  without issue in November William Glisson die intestate whereupon the  appellant place the elder take out letter of administration both to he and  mary his wife and in may the appellant bring their bill in the court of  chancery against the respondent and other for a account of the real and  personal estate of Bartholomew lane and particular for a account of profit of  the estate at Sembley Tisbury and Wimborne convey to the say William okeden as  aforesaid and also to set aside the conveyance thereof suggest that William  Glisson and his wife be very necessitous be impose upon by William okeden and  his agent and draw in to execute the same for little or no consideration be  under the power and influence of okeden and on assurance of kindness and other  promise which be never make good and the bill likewise pray relief as to the  raise the pound provide by the marriage settlement of and seek also to impeach  the will of William okeden the respondent answer this bill and the respondent  William okeden by his answer set forth the conveyance to William okeden of the  estate at Sembley brown er p Tisbury and Wimborne deny the several charge of  fraud and imposition and insist on the say purchase be make for a full and  valuable consideration and not obtain by fraud or imposition in any respect  whatsoever on the that of may the cause be hear before the Lord chancellor  king who be please to decree that what of the pound be not raise together with  the interest there of from the death of William Okedeii shall be raise and pay  out of his personal and trust estate and direct the account to be take for  that purpose with proper direction touch the same and for the maintenance of  the appellant and place out their money for their benefit till their come of  age and as to the deed and write of the real estate they be to be produce upon  oath before the master to be inspect by each side who be to be at liberty to  take copy thereof at their own charge and the same be to remain with the  master for six month for that purpose and then the party be to be at liberty  to apply to the court to have the deed deliver out to those to who they belong  or for any other purpose relate to the land contain in the say deed and as to  all other matter and thing the appellant bill be dismiss as to the defendant  mrs Morgan with cost to be pay by the appellant and the respondent bind Walter  and Hussey be to have their cost out of the brown testator estate and the  defendant farewell and his wife to have S cost out of the trust estate and  then appellant to leave their cost as to that part of the bill which relate to  the raise the pound out of the trust estate till the same shall be raise from  so much of this decree as dismiss the appellant bill relative to William  Okedens purchase they appeal and on their behalf it be urge c Talbot I Floyer  that William okeden not have advance any thing to his daughter either upon or  after her marriage she and her husband and child be at the time of this  purchase under the most extreme want and necessity from whence as well as from  their ignorance of the real value of the estate which be in Okedens possession  and from the influence of his paternal authority they be liable to be impose  upon by he that the great disparity between the real value of the estate and  the sum of pound advance by okeden for the purchase of it be a strong proof of  his have take a unreasonable advantage of Glissons distress ignorance and  dependence upon he it appear full in the cause that the estate be then worth  pound to be sell and though he be entitle to a estate for life therein as  tenant by the courtesy yet there ought not upon that account to have be a  deduction of more than one three at the most which will have leave above pound  as the value of the inheritance purchase by he and this unkindness to his  daughter Mr okeden complete by his will whereby he total disinherit her and  leave not only the estate in question but also all his family estate which be  in his power to dispose of his two natural son it be therefore pray that the  decree may be reverse as to this point that the pretend sale may be set aside  and consider as a security only for what be real pay by okeden as the  consideration thereof and that upon repayment of the same with interest after  a deduction of the profit which have grow due since his death the estate may  be convey to the appellant mary and Magdalen and their heir and that they may  have their cost out of his estate on the other side it be say p York d rider  that there be not the least proof of any fraud or imposition upon Glisson or  his wife in obtain this purchase but on the contrary it appear clear by the  evidence that they themselves first apply to and afterward press Mr okeden to  become the purchaser that several treaty be have about it and even when the  price be agree upon he give they time to procure a better purchaser and that  the conveyance be not execute nor the agreement itself complete till a  considerable time have be spend in seek for a better purchaser and they  themselves declare they can not find one that the purchase be only of a  reversion after a estate for life of a undivided moiety then let at pound per  and out of which be allow by the landlord pound per and in lieu of tithe and  all other rate tax repair and outgo to which the premise be liable and part  thereof consist in old house so that this bargain upon the face of it can not  be very beneficial and brown it appear in fact that pound be the most which  can be get for it but how advantageous soever the purchase may be it be a fair  agreement between party who be capable of brown er p contract and have a right  to dispose of their own and it be apprehend to be no ground for a court of  equity to set aside a agreement make without fraud or deceit because one party  happen to have a good bargain that Glisson himself never complain of be injure  by the sale but quiet acquiesce till his death which be six year after and it  be submit that a attempt to set aside a purchase after so great a length of  time and upon a charge of gross fraud and imposition without any proof to  support it be very vexatious and that therefore the appeal ought to be dismiss  with cost but after hear counsel on this appeal it be order and adjudge that  so much of the decree as be therein complain of shall be reverse and it be  further order and adjudge that the deed of lease and release of the that and  that of July shall be set aside from be a absolute purchase and be consider  only as a mortgage or security for the money real and good fide pay by William  okeden to William Glisson or to his order or for his use and that it shall be  refer to a master of the court of chancery to take a account of what be due  for principal and interest of the money so pay and advance by the say William  okeden and that a account shall be likewise take of the rend and profit of the  land and premise comprise in the say deed receive by the respondent since the  say Okedens death or which may have be receive without their wilful default or  through the mean of the say William okeden in his lifetime and the master be  to make a rest at the end of every year and deduct that rest first out of the  interest and then out of the principal advance by the say okeden and if upon  take the say account the respondent shall be find to be overpay then they  shall pay the surplus to the appellant and deliver up to they the title deed  and convey one moiety of the say estate free from all encumbrance to the  appellant mary gold and her heir and the other moiety to the appellant  Magdalen place and her heir but if on take the say account there shall be any  thing find due to the respondent then on the appellant payment to they of what  shall be so find due the respondent be to convoy one moiety of the say land  and estate to the appellant mary and her heir be and the other moiety to the  appellant Magdalen and heir heir and it be further order that the respondent  shall pay the appellant their cost in the court of chancery with respect to  that part of the bill which relate to the matter appeal from and that such  cost shall be tax by the master jour vol p Cotter v earl of Barrymore brown PC  er report date brown case laurence cotter appellant james earl OF Barrymore  respondent rd April Mews dig way seven viii a file his bill in the court of  chancery in Ireland to be relieve against a long lease grant by his ancestor  on the foot of fraud but not give sufficient evidence of the fraud his bill be  dismiss with cost some year after a file a new bill for the same purpose  charge fresh proof of the fraud which be not discover pen the former suit upon  hear this second cause the lease be set aside and on a appeal this decree be  affirm but vary by consent see ante can of this title Richard earl of  Barrymore be seize in fee of the land of Ballyvillowne alias cove Lissinesky  Tyneglassy and bane collig in the county of cork by indenture date the that of  November demise the same be then only of the yearly value of pound to Nicholas  Astwood for the term of year in consideration of a fine of and of a reserve  rend of pound S but as the premise be hold either in jointure or dower by  Alice countess dowager of Barrymore care be take to provide that this lease  shall not commence till her decease which do not happen until fifteen year  afterward and his lordship at the same time also execute a penal bind for  pound to Astwood condition for performance of the covenant on his part contain  in the lease by deed date the that of April Mr Astwood resign all his interest  brown er p in the lease to Edmund Cotter Esq the appellant grandfather for  pound who in the year die have by his last will devise his say reversionary  term when the same shall fall into possession to his two son garret Cotter and  James afterward sir James Cotter the appellant father equal between they and  if either of they shall die before he have lawful issue then his part be to go  to the survivor the countess dowager die in the year and sir James Cotter be  then in England his brother and codevisee on their joint behalf enter upon the  premise which they hold afterward as jointtenants or tenant in common till the  whole at last same to vest absolute in sir James what continue in the sole  enjoyment of the land under the say lease and mint without any interruption  other than that in the year one George Gamble get into possession under a  covenant of lease which the earl have take upon himself to maker of the  promise but which be soon after give up as a void lease sir James be again  restore and enjoy the land during the remainder of his life sir James Cotter  be afterward in treaty for purchase the reversion of this estate and desirous  to protect the term from be merge by deed date the that of July assign over  brown the same to William Cotter in trust for himself during his own life and  afterward in trust for his old son James Cotter who upon his father death in  become entitle to and accord enter upon and for some time continue in the  quiet possession of the premise without any contest whatever but in Trinity  term the respondent derive under a fine levy and a settlement make of the  reversion by the say earl Richard his father some time in the year exhibit a  original bill and soon after a supplemental bill in the court of chancery in  Ireland against the say James Cotter and other to impeach and set aside the  interest under the say term of year in order to which it be among other thing  suggest by these bill that earl Richard have in execute another lease of the  same land to one Vincent Scott for the term of year at the yearly rend of  pound in trust for the say garret and sir James Cotter and that his lordship  then also acknowledge a statute staple for a certain sum of money to the say  Vincent Scott which by a deed of deferrable be declare to be only intend as a  collateral security for the better performance of the covenant and condition  contain in such second lease and that the say Vincent Scott have also by some  deed declare the same to have be so take only in trust for the say sir James  Cotter and his brother garret and assign it over to the latter for their joint  use and benefit all which as be suggest do amount to a surrender or at least a  agreement to waive the benefit of the term lease for year and in order to give  a great colour of probability to such pretend agreement it be further allege  that their reason for come into it be a persuasion and conviction they have  that the first lease be either void or voidable as exceed the lessors power or  authority to grant the same and the bill further set forth that sir James in  his lifetime and since his death the say James Cotter his son have get into  their hand and fraudulent withhold and suppress the say several deed and that  to carry on still the appearance of a title under the first lease there have  be some erasure make in the deed by which the rend reserve be change from  pound to pound a year with a view of make it the better to correspond with  that sum which have all along be pay annual for the premise but that the  respondent who be become entitle as reversioner to reenter upon the premise at  the expiration of the second lease be disable from make out his title or  proceed at law for the recovery thereof on account of the say several suppose  fraud and therefore he by his say bill pray a discovery of all these  particular and to be decree the possession of the premise James Cotter in his  several answer to these bill admit to have hear of the second lease to Vincent  Scott but deny that thereby or otherwise it be agree or ever intend to  surrender or waive the first lease or that there be any erasure or alteration  therein and therefore insist upon the benefit of the first lease as a subsist  lease which his ancestor have purchase for so brown valuable a consideration  under a unquestionable title in the lessor and which there can not have be any  motive or inducement for depart with afterward as be pretend and he likewise  deny the several other allegation of the bill brown er p issue be join and  publication have duly pass after a long examination of many witness on both  side the cause come on to be hear in Trinity term and afterward reheard in  Hilary term follow before the Lord chancellor of Ireland assist by the Lord  chief justice Forster and Mr justice dolben when upon great consideration have  of the several proof and circumstance in the cause and more particular of the  deposition of Vincent Scott himself who be examine as a witness for the  respondent and on his deathbed deny any such agreement as be pretend and it  appear likewise that the old lease and bind be cancel and entire without any  erasure or alteration whatsoever and that the take a assignment of this  concurrent or reversionary interest whether accept to prevent a law contest  with Vincent Scott or even to protect his first title under a mistake  misapprehension that the same may be question by the earl himself or Vincent  Scott or any other lessee be not a sufficient foundation in equity for set  aside the first purchase the court decree both the respondent bill to stand  dismiss with cost and be also please to direct his majesty attorneygeneral to  carry on a prosecution against some agent or solicitor that appear guilty of  indirect practice in tamper with Vincent Scott about his evidence in the cause  this decree be afterward enrol the appellant under the sanction of it treat  for and become a purchaser of the remainder of the first term from his brother  James who assign all his interest over to he for a valuable consideration by  deed date the d of September in pursuance whereof the appellant immediate  enter upon and enjoy the premise for many year without any the least  interruption or contest but on the that of July which be after above five year  acquiescence under the decree the respondent exhibit a new bill in the same  court against the appellant and also against James Cotter the old son of the  say James Cotter Robert reeves Francis Bernard Esq John Rogerson Esq his  majesty attorneygeneral and other state all that have be before allege and  insist upon in his former bill but disclose no new matter what so ever other  than the death of the say James Cotter in the year under a attainder of felony  for a rape of which he have be convict and that there have since be discover  fresh proof to support the allegation of the original and supplemental bill  concern the suppression and concealment of the second lease for year and the  other deed relate thereto by the say James Cotter while the former suit be  depend and that the respondent have since get the same into his own power  which bear date respective upon the that of April and that off may together  also with another deed date the that of brown December by winch it be allege  that garret Cotter have assign or release his interest under the second lease  to his brother sir James and it be also allege that by the second lease earl  Richard covenant that he his heir or assign shall within one year after the  expiration of the say year term at the charge of the say Vincent Scott his  executor administrator or assign renew the say lease for year to commence from  the expiration of the say year at the same rend and that a old mortgage make  by his father subsequent to the second lease though satisfy be still  outstanding in the say Francis Bernard the respondent therefore pray that the  say decree of dismission may be reverse or set aside and that he may be decree  to the possession of the say land and to a account of the profit since the  appellant become possess thereof the appellant put in a plea to part of this  bill and insist that the several particular thereby pretend to have be  discover be not any new matter of fact which have not already be put in issue  but only fresh supplemental proof of the same fact which have be before  examine into and determine upon in the former cause and therefore by the rule  and practice of the court it be a improper foundation for any bill to reverse  or impeach a decree make upon so great consideration he also insist upon his  be a purchaser for a valuable consideration long before the conviction of his  say brother and without notice of any title the respondent have to impeach the  same and by his answer to the rest of the bill the appellant set forth at  large the several reason which induce he to believe that the deed allege to be  in the respondent power brown er p be not genuine or ever conceal by James  Cotter or if they have yet that the same be whole immaterial they ought not to  affect the appellant title to the premise on the that of June this plea come  on to be argue before the Lord chancellor of Ireland when his lordship be  please to overrule the same with cost afterward Mr attorneygeneral put in a  answer but insist upon no title by reason of the conviction of James Cotter on  account of the appellant antecedent purchase and the say Francis Bernard also  put in a answer and thereby submit to act as the court shall direct this cause  come on to be hear before the Lord chancellor upon the d d that that that and  that day of April and upon the d of July follow his lordship be please to  direct a trial at law to he have by jury of the country of cork upon the  follow issue videlicet whether the say several deed date respective the that  of April the d of may and the that of may and the other deed date the that of  December be in the possession of James Cotter son of the say sir James and  when and whether the say deed or any and which of they be conceal by he or his  order brown a trial be accord have on this issue upon the that of April before  the Lord chief baron of the court of exchequer in Ireland but the appellant be  disable to make a defence by the death of those witness who have be examine in  the former cause to the same point the jury return their verdict in these word  videlicet that the say four deed be in the possession of the say James Cotter  the son of the say sir James on the that day of December and that the same be  conceal by he from that time till the time of his death this verdict be  afterward certify by the Lord chief baron the cause come on to be further hear  before the Lord chancellor on the that of may when his lordship be please to  decree that the say lease for year shall be set aside and deliver up to the  respondent as have be surrender and determine by the acceptance of the say  other lease for year and direct a account to be take against the appellant  from the time he first come into possession for what he make or may have make  of the say land without wilful default and that a injunction shall be direct  to the sheriff of the county of cork award he to put the respondent into  possession of the premise and also decree the say Francis Bernard to convey  the legal estate he have therein to the respondent from this decree and also  from the order for overrule the plea the appellant appeal insist p York I  strange that as this in its own nature seem to be a bill of the first  impression so the overrule the plea put in to it by the appellant may become a  precedent of the most dangerous tendency and which if once establish must lie  open the justice of almost every decree to be call in question and reexamined  either upon a real or pretend discovery of further evidence to the same point  which have already be controvert and determine and thereby introduce the  utmost confusion not only among the immediate suitor themselves but all those  derive under they by purchase or otherwise and be a great inlet to perjury and  subornation that the issue direct in this cause and the fact find upon it be  plain immaterial and what ought not therefore in any sort to impeach or affect  the appellant title to the land in question because neither the first  acceptance or subsequent assignment of the new lease by Vincent Scott to  garret Cotter ever amount to a legal surrender even of his own moiety of the  old lease and if any act thus do have wrought a surrender of his moiety yet it  can not affect the contingent interest either present or future of the other  jointtenant who be then in another kingdom and a entire stranger to the whole  transaction nor can the subsequent assignment to have be make in amount in any  sense to more than the release of one tenant in common to another of whatever  interest pass under the second lease but there be not the least colourable  foundation for presume either of the joint tenant ever agree or intend to  waive the benefit of a valuable interest to which their title be clear and  brown unquestionable and which have be brown er p purchase by their father at  so high a price especial consider the evidence of Vincent Scott who best know  the truth of the whole transaction and to the time of his death persist in his  denial of any such agreement it be however object that it appear by the  evidence of one Richard Barry a witness examine in the former suit that on  pretence of the lease for year be a void lease either because it exceed the  power which earl Richard have to make lease or because Nicholas Astwood happen  to die in the lifetime of the countess dowager his lordship soon after heir  death enter and distrain upon the premise which give birth to a lawsuit on his  part to set aside that lease and that this dispute be afterward compromise by  a agreement between he and garret Cotter by which the old term be to be  surrender in consideration of a new lease for a less number of year to be  perfect by the same lessor but it be apprehend that the bare state of this  lose parole evidence be sufficient to show the improbability of its be true in  almost any one particular for though it shall be admit that the lessor have  only a particular estate in these land which may make any act he do void as  against his remaindermain yet as it evident can not be so against himself  there do not seem to be any colour or pretence for contest the same in his  lifetime beside it be hardly conceivable how any such suit shall have take its  first rise by distrain upon the premise or why if it ever have be begin and  carry on there shall not be now extant the least footstep of any such proceed  upon record or why the second lease for year with a covenant to renew for a  further term of year shall have be think a more certain interest or in less  danger of be avoid than the other but what render the whole of this evidence  yet more improbable and almost incredible be that it appear of the respondent  own show that the lessor have a absolute estate of inheritance in the premise  the respondent claim by a settlement under he which necessary imply a  antecedent power in he to execute the lease now contest beside it further  manifest appear that the lease to Astwood be make for year to commence  absolute at the death of the countess and not to depend upon his survive her  or any other contingency whatever last that although the old lease shall be  look upon as a interest agree to be surrender yet the appellant ought to have  enjoy the entire benefit of the second lease which be allow to be the only  recompense and consideration for give up so valuable a purchase as the other  nor ought he to be deprive of the benefit of the further term thereby covenant  to he grant by be decree to account for the profit from the time of his come  into possession notwithstanding such covenant full appear in the cause and  amount to a lease in equity for that term it be therefore hope that the order  and decree appeal from will be reverse and the respondent bill dismiss with  cost brown on the other side it be contend c Talbot t Lutwyche that the  concealment of the several deed mention in the issue and verdict by James  Cotter the appellant brother and the subsequent transaction relate thereto be  unknown to the respondent and not discover till long after the dismission of  his former bill and that several of these fact happen after such dismission  can not be make use of in the former cause that the appellant have neither in  his answer or plea swear to any particular consideration be pay for the  purchase nor do the instrument under which he claim to be a purchaser mention  any particular consideration nor have he prove that he ever pay or give any  consideration for such purchase he ought therefore to be consider only as a  volunteer and must be affect with the fraud and ill practice of his brother  James in relation to the deed beside it appear in the cause that James Cotter  execute the assignment in the absence of the appellant and without any  previous agreement or communication with he concern the same and as to the  appellant have any benefit of the covenant for renewal it appear by the  covenant that application be to be make for such renewal within a year after  the expiration of the year lease but the appellant brother instead of apply  for a new lease fraudulent set up the lease for year and by his answer in the  former cause express waive the benefit of that covenant as do the appellant  likewise by his answer in the present cause it be therefore pray that the  order and decree may be affirm and the appeal dismiss with cost brown er p  after counsel have be hear on this appeal the party come to a agreement which  be reduce into write and sign be deliver in at the bar and desire to be make  the order of the house it be accord order and adjudge that the decree complain  of shall be so far vary as that the appellant shall have the benefit of the  renewal of Scott lease for year of the land in question for the term of year  from the expiration of the say year lease accord to the term of the covenant  therein and that the appellant shall be let into possession on the saint day  of may next and that the respondent shall answer a year and a half rend of the  estate in question from the saint of November to the saint of may at pound a  year amount to pound S and the appellant be to answer for fifteen year reserve  rend of the premise at pound a year from the saint of may to the saint of may  amount to pound which be deduct out of the say pound S there remain due to the  appellant pound S which the respondent be to pay to the appellant on the say  saint day of may next and the appellant be to deliver back the possession of  the say estate to the respondent on the saint day of may when the say year  will expire and no cost be to be pay by either party in his cause either here  or in Ireland and with these variation the decree be affirm jour vol p