brown case earl OF ANGLESEY Appellant Charles ANNESLEY Respondent that march  Mews dig seven thirteen if a agreement be in part perform by one of the party  it be too late for the other to complain of fraud surprise etcetera or attempt  to set the agreement aside on that account for a court of equity will decree a  specific performance of the remain part of it Arthur the first earl of  Anglesey have issue James afterward earl of Anglesey Altham afterward Lord  Altham Richard who likewise be afterward Lord Altham Charles and ArthurJames  the old son have issue James John and Arthur who be successive earl of  Anglesey and who all die without issue maleAltham die without issueRichard  have issue Arthur who die without brown er p issue and the appellantCharles  have issue only the respondentAnd Arthur the young son die without issue the  first earl Arthur be seize of several manor town and land in England Wales and  Ireland do on the intermarriage of James his old son with lady Elizabeth  manner execute a settlement date the that of September by which he and his say  son be both make tenant for life with remainder to the first and every other  son of James the son in tail male with remainder over the three earl James  after the death of his grandfather and father levy fine and suffer recovery of  several part of the estate and be thereby seize in fee thereof he make and  publish at different time two will and six codicil contain several repugnant  and contradictory disposition of his say estate under some of which the  appellant and under other the respondent will become entitle to the bulk of  the estate upon failure of issue male of Arthur the last earl of Anglesey for  by the first will date the that of may he inter alian devise all those honour  manor land tenement and hereditament whatsoever in the kingdom of Ireland of  which he have levy any fine or suffer any recovery or of which he be seize in  feesimple and can dispose of to trustee first to pay his debt and after  payment thereof to his brother Arthur for life who be afterward earl of  Anglesey and to his first and other son in tail male remainder to Richard Lord  Altham his uncle the appellant father for life and to his first and other son  in tail male remainder to his other uncle Charles Annesley the respondent  father for life and to his first and other son in tail male remainder to his  own right heir and by a codicil date the d of November follow recite the above  will and that he do not intend to alter the same otherwise than by this  codicil and that he have since suffer recovery of other part of his estate he  devise all his brown manor land tenement and hereditament whatsoever in  England or Wales of which he have suffer recovery or which be in his power to  dispose of to trustee to the use of his brother Arthur for life remainder to  his old and other son in tail male remainder to such person and with such  power as the estate by his say recite will devise to his say brother Arthur be  appoint to go he then devise all his manor land house tenement and estate in  the county of meath and in the town of new Ross in the county of Wexford to  Arthur Lord Altham for life remainder to his old and other son in tail male  remainder to the daughter and daughter of such son and son and to the daughter  of the say Lord Altham and the heir of the body and body of all and every such  daughter and daughter share and share alike remainder to his say brother  Arthur for life remainder to his old and other son in tail male remainder to  the same person and with the same power as his other estate devise to he as  aforesaid on the that of December the testator execute another will and  thereby devise all his estate in Ireland of which he have levy any fine or  suffer any recovery or of which he be seize in fee and can dispose of to the  same trustee as be name in the former will in trust for the payment of his  debt and then to his brother Arthur for life remainder to his first and other  son in tail male remainder to Arthur Lord Altham his cousin for life remainder  to his first and other son in tail male remainder to Charles Annesley his  uncle for life remainder to his first and other son in tail male remainder to  the testator own right heir and on the same that of December the testator  publish a codicil whereby after recite his first will and his intention to  provide for the payment of several legacy and also for the more secure  disposition of his real estate some part of which he have suffer recovery of  since the say will and after desire that this codicil may be annex to his say  will and take as part thereof he devise all his manor land tenement and  hereditament whatsoever in England or Wales to trustee subject to his debt to  the use of his brother Arthur for life remainder to his old and other son in  tail male remainder to such person and with such power as the estate by his  say recite will devise to his say brother Arthur be appoint to go he then  bequeathe diverse legacy to be pay out of his estate in the county of Kildare  Armagh and Tyrone in Ireland and devise the same estate or such part thereof  as shall remain unsold to the use of his brown er p say brother Arthur for  life remainder to his son in tail male remainder to the same person and with  the same power as his say other estate devise to he as aforesaid be appoint he  then devise all his estate in the county of meath and in the town of new Ross  in the county of Wexford to Arthur Lord Altham for life remainder in tail to  his son remainder to the daughter and daughter of such son and son and to the  daughter of the brown say Arthur Lord Altham remainder to his say brother  Arthur for life remainder to his old and other son in tail male remainder to  the same person and with the same power as his say other estate devise to he  as aforesaid be appoint to go on the that of the same month of December the  testator publish two codicil by the first after recite that he have publish  his last will bear date the that of may last and also a codicil bear date the  d of November annex he thereby confirm his say will and codicil and bequeathe  some pecuniary legacy to be pay out of his estate in Essex and by the other  codicil after recite the will bear date the day before and the codicil annex  thereto of the same date he confirm both and bequeathe the same legacy to be  pay out of his Essex estate as in the first of these two codicil and on the d  of January follow he publish two other codicil by both of which after recite  general that he have by his last will devise certain land etcetera to his  brother Arthur for life with diverse remainder over he thereby give a power to  his say brother to settle a jointure on any wife or wife he shall marry in  January earl James die without issue male on who death both the say will and  the codicil thereto be prove in the ecclesiastical court and also in the court  of chancery and a Act of parliament pass for exemplify the same under the  great seal of great Britain and to make such exemplification evidence in all  court of law and equity in England and Ireland and the say will and codicil be  exeniplified accord so that the appellant be full apprise of all his title and  claim under the same Arthur earl of Anglesey be seize in fee of the park of  Knockgrenan otherwise Camolin park in the county of Wexford in Ireland build a  large mansionhouse and office which cost he pound at least and be so seize on  the that of February he make his will and thereby devise the say park house  and keeper lodge and the wood grow in the park to his cousin Charles the  respondent and his heir and which wood be repute to be worth pound at least on  the saint of April earl Arthur die without issue and upon his death the  appellant find mean to get possession of part of the say devise premise and  particular of Camolin park the house and keeper lodge and cut down some part  of the wood and threaten to cut down all the rest whereupon the respondent in  easter term exhibit a possessory bill in the court of chancery in Ireland  against the appellant to be restore and quiet in the possession of the say  devise estate and that the appellant may be enjoin from cut down the say wood  and upon move the court and read several affidavit and a certificate of the  bill file a order be make that the appellant shall show cause why a injunction  shall not be grant and that in the mean time he shall be brown restrain from  cut any of the wood which order be serve on the appellant on the that of may  pen this suit the appellant be in London often apply to and request Francis  Annesley Esq who be equal relate both to the appellant and respondent to use  his kind endeavour towards bring about a accommodation between they and press  Mr Annesley to write direct to the respondent who be then in Dublin in order  to prevail upon he to come to London to adjust and settle the matter in  difference and voluntary propose that the respondent shall have and enjoy one  three of both the English and Irish estate whereupon Mr Annesley be persuade  to write to the respondent acquaint he with the appellant proposal and that  the appellant desire the respondent will come to London in order to settle the  dispute that be depend on the respondent come to London in June a meeting be  have between he and the appellant at the house and in the presence of Mr  Annesley who then tell the appellant that as there be dispute concern the  title to the estate he will produce any deed or paper that shall be think  necessary brown er p relate to that title and several other meeting be  afterward have when the appellant rise in his demand and insist upon have the  whole of the English estate and that the respondent shall have only one three  of the Irish estate and that the appellant shall have a power to charge his  two three of that estate with pound which be pound more than he at first  desire nothing therefore be conclude on at any of those meeting but both party  take time to consider and after many interview between they and their relation  and friend they come into the follow agreement by article date the that of  June recite that diverse dispute and controversy have be between the appellant  and respondent touch their respective right and title to the estate land  tenement and hereditament whereof the late Arthur earl of Anglesey die seize  or possess in the kingdom of great Britain and Ireland it be witness that for  end and accommodate all dispute and difference between they any way relate to  the premise it be mutual agree that the respondent shall release all the right  and title which he have or claim to all and every the estate land tenement and  hereditament whereof the say Arthur late earl of Anglesey die seize or possess  in great Britain or Wales to the appellant and his heir for ever and for that  purpose shall do and execute all such further and other act and deed as by the  appellant counsel shall be advice or require that the appellant and respondent  be to have all the wood and timber tree then grow upon any part of the say  earl Arthur estate except the wood and timber tree stand and grow in the park  of Camolin to be divide equal between they and dispose of as they shall think  fit that the respondent shall convey the park and land with the wood and  timber tree stand and brown grow thereon of Knockengarrow alias Knockgrenan  near Camolin in the county of Wexford and the mansionhouse and keeper lodge  with their and every of their appurtenance to the appellant and his heir for  ever in consideration of which the respondent be to have hold and enjoy part  of the say earl Arthur estate of the clear yearly value of pound free from all  encumbrance to he and his heir for ever the same to be set out with all  convenient speed that the appellant be to have two three of the remain part of  the say estate in Ireland for life remainder to his first and every other son  in tail male and for want of such issue remainder to the respondent for life  remainder to his first and every other son in tail male and for want of such  issue remainder to the right heir of the appellant and the respondent be to  have the other three of the say estate for life remainder to his first and  every other son in tail male and for want of such issue remainder to the  appellant and his first and every other son in tail male with the like  remainder over to the right heir of the respondent and each of they be to have  a power to make lease and settle jointure in the manner therein mention and  likewise a power of charge by mortgage or otherwise on their respective share  any sum not exceed pound to the appellant and pound to the respondent until  such time as the say partition or division of the say estate can be make and  each of they be to have and receive a proportionable share of the rend issue  and profit accord to the allotment beforementioned of the say whole estate and  premise in Ireland that the two three of the estate so belong to the appellant  shall be charge and Chargeable with the payment of two three of a annuity of  pound Payable to the duchess of Buckingham for her jointure and also with the  payment of two three of what shall appear to remain due of the portion of lady  Catharine daughter of James earl of Anglesey decease and of all other  encumbrance affect the estate of the late James and Arthur earl of Anglesey  and that there shall be a like proportionable charge on the three allot to the  respondent that the appellant agree to waive all privilege of parliament as a  Peer of great Britain or Ireland with respect to any suit or suit to be  commence or prosecute for any matter or thing to be claim sue for or demand in  consequence and pursuance of this agreement between he and the respondent and  the appellant and respondent do mutual covenant and agree each with the other  to execute all further act and assurance which by their counsel shall be  advice or require at the request of either party for the further convey and  assure the premise accord to the tenor and intent of the say agreement brown  er p after the execution of these article the appellant enter into a treaty  with Mr Francis Annesley for the sale of a undivided moiety of a estate in  Oxfordshire the other moiety whereof be devise to Mr Annesley himself by earl  Arthur and Mr Annesley insist that unless the respondent join in the brown  conveyance he will not purchase the same accord in execution of these article  the respondent join in the fine recovery and conveyance which be levy and  suffer of this estate and also levy fine and suffer recovery of all other the  estate in England and Wales and execute proper deed declare such fine and  recovery to be to the use of the appellant and his heir and at the same time  many of the tenant both in England and Wales who have attorned to the  respondent do at his request attorn tenant to the appellant by which the  appellant obtain the quiet possession of the estate in England and Wales and  the respondent in further performance of the article on his part cause several  suit in of which the appellant soon after cut down part of the most valuable  timber in the park of Camolin to the value of pound at least which he can not  have do have the respondent oppose it as he be restrain by the order of the  court of chancery before mention but the respondent do not oppose his cut down  the timber be Willing in every thing to perform the article on his part and  not doubt but the appellant will do the same when desire thus the respondent  do all that be to have be do on his part and though the appellant have get all  that be desire by he yet he refuse to perform the article and will neither  execute deed pursuant thereto or suffer the respondent to receive any part of  the rend of the estate wherefore the respondent on the that of February  exhibit his bill in the court of chancery in Ireland against the appellant to  have the say article specifical execute but before the appellant put in his  answer many application be make to the respondent by person employ by the  appellant to prevail on he to come to a accommodation with the appellant  rather than to be at the expense and trouble of a tedious law suit and by  repeat solicitation the respondent at length be prevail on to meet the  appellant in order to try whether their dispute can be amicable determine and  accord they have a meeting at a tavern in Dublin on the that of may with  friend on both side at which meeting several matter be talk of and propose but  Mr Edmund Shamley the respondent agent declare that nothing be intend final to  be conclude and hope that nothing then say or do shall be conclusive for that  the end and design of that meeting be only to propose mean for a accommodation  to which declaration the appellant and his friend agree and it be understand  on both side that nothing then say or do shall be in any sort bind on either  party it be however after much conversation propose that three of the company  shall withdraw into another room and consider of some term which be to be the  subject matter of future consideration and they accord do so and in a short  time return and bring in a paper in the word follow Charles Annesley Esq be to  have brown pound per and in fee clear of encumbrance another pound per and be  to go to my Lord Anglesey for life remainder to his first and every other son  in tail male remainder to Charles Annesley for life remainder to his first and  every other son in tail male remainder to the right heir of the Lord Anglesey  all the rest of the Anglesey estate to go to my Lord Anglesey in fee and the  article perfect in England to be cancel when deed be perfect pursuant to this  agreement and fine and recovery levy and suffer to establish those deed may  the that but this paper be not sign by either party when this proposal be  bring in the appellant seem to be very angry that he be thereby to be make  tenant for life only and he arraign the friendship of the person who make the  proposal as contain term too much in favour of the respondent but at length he  ask the respondent whether he will agree to it and desire the respondent to  sign the say write which the respondent express refuse to do intend to consult  his friend and further to consider of it before he make it conclusive upon  which the appellant call for a bible and ask the respondent to swear that he  will abide by the term propose which the respondent also refuse to do  notwithstanding which Caesar colclough and John Stratford two of the appellant  friend think proper to sign the say write as brown er p witness and the next  day Mathias reilly one of the appellant agent go with Mr Shamley to the  several tenant of the Dublin estate and persuade they to sign a instrument  purport to be a attornment but as soon as the respondent come to the knowledge  of what have be do he direct Mr Shamley to restore the possession to reilly  which he instant do and in his presence deliver the money receive by the  tenant for their attornment and cancel the instrument so sign by they the  lastmentioned proposal or treaty for a accommodation be thus end the appellant  on that of August put in his answer and thereby insist that the say article of  the that of June be obtain and enter into by fraud surprise and  misrepresentation when he be ignorant of his title and that he and the  respondent have come to a subsequent agreement which be reduce into write and  which he set forth in his answer and declare he be Willing to perform and  therefore insist that the first agreement be waive and ought not to be carry  into execution to this answer the respondent put in a special replication  state that the pretend second agreement be only a treaty for a accommodation  that it be not reduce into write by his direction or with his consent and that  it be not sign by either of the party and be therefore void on the that of  march the appellant exhibit his cross bill allege as he have do in his answer  to the respondent bill that the agreement of the that of June be obtain by  fraud misrepresentation and surprise and while he be brown ignorant of his  title and that the appellant have come to a second agreement as  beforementioned and therefore pray that the first agreement may be set aside  and that the second may be establish to this bill the respondent put in his  answer deny any fraud surprise or misrepresentation and insist that he be not  bind by the second suppose agreement for the reason contain in his replication  both cause be at issue witness be examine and publication have pass they come  on to be hear before the Lord chancellor of Ireland on the that of February  when his lordship be please to decree a specific execution of the article bear  date the that of June so far as the same have not be already carry into  execution and that accord the appellant shall convey to the respondent and his  heir land of the clear yearly value of pound part of the estate which Arthur  late earl of Anglesey die seize or possess of in Ireland free from all  encumbrance and shall account with the respondent before the master for the  say pound yearly from the date of the say article upon which account all just  allowance be to be make and the respondent be to convey to the appellant and  his heir all his right and title to the park and land with the wood and timber  tree stand and grow thereon of Knockengarrow otherwise Knockgrenan near  Camolin in the county of Wexford and the mansion house and keeper lodge with  their appurtenance thereto belong and that a partition shall be make between  the appellant and respondent of the residue of the estate whereof the say earl  Arthur die seize in Ireland accord to the say article videlicet one three part  thereof to the respondent and the other two three part to the appellant and  that a commission shall issue to set out accord to quantity and quality one  three part of the say residue to be convey to the respondent by the appellant  under the several limitation remainder power charge and encumbrance mention in  the say article and the other two three of the residue of the say estate so  set out to be convey by the respondent to the appellant under the several  limitation remainder power charge and encumbrance also mention in the say  article and until such partition can be make injunction be award to put the  respondent into and from time to time to quiet he in the peaceable possession  of one three part of the say residue and the appellant be to account with he  before the master for one three part of the issue and profit of the say  residue from the date of the say article upon which account all just allowance  be to be make and the respondent be declare to be entitle to cut down fall and  dispose of one half of the wood and timber tree which be stand and grow on the  that of June be the date of the say article upon any part of the say estate  whereof the say earl Arthur die seize or possess in Ireland except the wood  and timber tree in the say park brown er p of Camolin and of Knockengarrow  otherwise Knockgrenan brown and if any of the say wood exclusive of the say  wood and timber tree in the say park of Camolin and of Knockengarrow otherwise  Knockgrenan have be cut down by the appellant or his order since the date of  the say article he be to account with and pay to the respondent one moiety of  the value of the wood so cut down and in order to ascertain the same the  master be to take a account of such wood so cut down and the value thereof and  the appellant and respondent be direct to levy fine and suffer common recovery  of the estate of which the say earl Arthur die seize or possess in Ireland and  to execute conveyance and assurance one to the other accord to the tenor and  intent of the say article and the master be to prepare and settle the same  accord the appellant cross bill be order to be dismiss and the consideration  of the cost as between he and the respondent be reserve until the master shall  have make his report from this decree the earl think proper to appeal and on  his behalf it be contend d rider W Murray that upon a plain construction of  all the say will and codicil the respondent have no right nor even a  colourable title to any thing comprise in the article of June but that the  title to all the premise appear clear to have be in the appellant so that  those article be obtain without any real consideration and be in their nature  both unequal and unreasonable a court of equity ought not to have decree a  agreement of that kind to be specifical perform that these article be find in  error and a total ignorance of the appellant title he not know that by the say  will and codicil he have a good title to the whole estate which pass by the  will of earl James and that earl Arthur be only tenant for life of the mansion  house lodge and park of Camolin and can not dispose thereof by will beside the  appellant be draw into this agreement not only by a concealment of what ought  to have be discover to he and take a unfair advantage of big ignorance and  credulity but also by direct imposition and misrepresentation and accord the  first agreement be absolute waive and depart from by the second it be however  object on the part of the respondent that the first agreement be in part  perform by he by deliver possession of the English estate to the appellant and  join with he in levy fine and suffer recovery thereof and that therefore the  appellant ought not to be excuse from perform his part but to this it be  answer that the respondent have not the least colour of title to the  possession of the English estate which be take by his friend Mr Annesley for  his use it not be so much as pretend that the codicil of the d of November  which settle the English estate be revoke by the will of the that of December  or otherwise and as that be a tortuous possession it will be extreme  unreasonable that the yield it up to the appellant who have the right shall be  deem a adequate consideration for his give up a three part of his estate and  as to the respondent join with he in fine and brown recovery it serve only to  show the appellant ignorance of his title in desire that assistance from the  respondent which can not add to it or be of any service to the appellant who  may have levy fine and suffer recovery without the respondent concurrence and  even against his consent but it be further object that as no direct fraud be  prove against the respondent he ought not to be answerable for the confidence  place by the appellant in Mr Annesley or for any misrepresentation or  concealment of his to this it be answer that the circumstance of fraud mention  in the objection be proper applicable to the respondent himself who have  better opportunity of learning the nature of this case than the appellant have  he act by good advice the appellant do not he at least take advantage of the  appellant ignorance and credulity and endeavour to profit by it and which  ought to have be a sufficient reason with a court of equity not to have decree  a specific performance of so unequal a agreement it be also object that the  second agreement be not intend to be Obligatory and if it have be void by the  statute of fraud and perjury because it be not subscribe by the party but that  this second agreement be real intend to be absolute and Obligatory appear from  a undoubted fact videlicet that it be partly carry into execution by the  delivery and acceptance of the possession of the Dublin estate as part of the  pound per and which be to be enjoy by the brown er p respondent in pursuance  of that agreement the performance of a agreement either in whole or in part as  to the term whereof there be no uncertainty have always be consider by court  of equity as a circumstance to take it out of the statute of fraud which be  only intend to prevent the consequence of perjury where agreement be uncertain  and therefore they have decree in favour of parole agreement when ascertain by  the confession of the party in his answer and when a parole agreement be in  part perform by the party contest the same and there be no doubt concern the  term of it as in the present case such agreement be establish and decree for  in court of equity if not unequal or unreasonable in themselves or liable to  some other objection than that of their not be sign by the party it be  therefore hope that the decree will be reverse the first agreement vacate and  the second establish on the part of the respondent it be insist f Chute t  clarke that the agreement of June be a very reasonable agreement be make  between two near relation of a noble family the one have no issue and the  other be his first cousin and next heir male who in default of issue male of  the appellant must succeed to the honour and earldom and who be clear intend  to succeed to the Anglesey estate and that such agreement be the more  reasonable because it be make to quiet dispute and difference then subsist  which be occasion by the confusion that have be introduce by the two will and  six codicil and to secure a convenient part of the estate to support the  honour of the family brown and therefore fit and proper to be carry into  execution by a court of equity that this agreement take its rise from a  proposal original make by the appellant and be afterward carry on by treaty  between the common friend of both party till at last upon full consideration  it end in a manner more favourable for the appellant than his own first  proposal and after due time have be take for draw and engross the article they  be fair and voluntary execute by both party without the least ground for any  imputation of fraud surprise or imposition the appellant have previous take  the advice of learned counsel concern his title and have have full opportunity  of inspect into it if he have think proper that as this agreement have in the  several particular abovementioned be carry into execution on the part of the  respondent the circumstance of the estate be so far vary that the respondent  can not now be put into the same condition he be in before the agreement and  it will be very inequitable to let the appellant lose from his agreement when  so many act have be do by the respondent in favour of the appellant and to  quiet his title to the estate he enjoy under it in which the respondent be no  otherwise bind to assist or concur than in compliance with the agreement that  the pretend second agreement can not vary the case or amount to a waiver of  the first because it be never perfect accord to the statute of fraud nor  proper carry into execution nor can the appellant have compel a specific  performance of it for although possession of part of the Dublin estate be  deliver to the respondent agent without his consent yet those premise be hold  only by chattel lease from the city of Dublin and therefore in their nature  can not be apply in performance of this pretend agreement beside this  possession such as it be as soon as the respondent know of it be restore and  the appellant have ever since be in the receipt of the rend and profit of the  premise and therefore it be hope that the decree will be affirm and the appeal  dismiss with cost after hear counsel on this appeal it be order and adjudge  that the same shall be dismiss and the decree therein complain of affirm jour  vol p