brown case alice lucas widow and another appellant Francis lucas and other  respondent that February as to trial at bar in civil case see Dixon v Farrer Q  b d Anderson v gorri lr in what case a new trial may be grant after a trial at  bar but it must be on payment of the cost of the last trial Matthew Lucas  esquire decease be in his lifetime seize and possess of the town and land of  Rathdaniel and other land in the county of Carlow and Wicklow for the  remainder of several lease for life of the yearly value of pound per and over  and above the reserve rend and also possess of a personal estate of the value  of pound and have no legitimate issue but seven natural child videlicet three  son John Lucas the respondent Francis Lucas and Charles Lucas and four  daughter Catherine the wife of Richard William Judith Caroline and mary for  who he have the most tender regard and affection have constant breed they up  and educate they in his own house and family from the time of their respective  birth till it be proper to place they out at public school and have one  brother William Lucas esquire the appellant Alice late husband who be his heir  apparent and five sister videlicet mary baker Sarah Jackson Elizabeth hay and  Judith Higginbotham widow and Ann Grogan wife of Edward Grogan and as he  always intend his fortune for his natural child when he renew two of the say  lease he take the same for the life of the say John Francis and Charles Lucas  his three natural son notwithstanding one of the lessors who be well acquaint  with and have a friendship for William Lucas the brother very much press the  say Matthew Lucas to insert his say brother name in the lease as one of the  three life but he refuse declare that he think his brother already provide for  sufficient in September Matthew Lucas be take ill of a cold which turn to a  fever attend with a inflammation on the lung and be mind to make his will and  settle all his worldly affair he give instruction to one Mr John sexton who  have be breed a attorney and be accustom to do business for he in draw lease  and other deed to prepare his will and accord Mr sexton prepare the draught of  a will agreeable to such instruction and deliver the same to Mr Lucas who  thereupon order his daughter Catherine to make a fair copy of it as she write  a more legible hand than sexton which she accord do and deliver such fair copy  to the say Matthew Lucas who read over the same and afterward duly execute the  say will in the evening of the that of September which be on a Sunday at which  time as well as brown at the time of his give such instruction for prepare his  will to sexton as aforesaid the testator be of sound mind memory and  understanding and which will he duly execute by sign seal and publish the same  as and for his last will and testament in the presence of Garrett Fitzgerald  the apothecary who attend he in his illness William Fenellon yeoman and the  say John sexton who all subscribe their name as witness in the presence of the  testator and of each other by this will the testator devise his say freehold  lease to his old son John Lucas with limitation over to his other natural  child and give several pecuniary legacy to all his other natural child under a  proviso that if any or either of they shall intermarry with a papist or papist  the person so marry shall have one shilling only and after give to his sister  Higginbotham pound and to his sister Ann Grogan pound he give to his brother  captain Lucas and his sister Jackson baker and hay but five shilling apiece  and make his son John Lucas residuary legatee with a limitation over to his  other natural child and he appoint colonel Joshua Paul the respondent Byrne  and his son John Lucas when at full age executor of his will but the testator  direct that all the child except Judith shall live together at his  dwellinghouse at Rathdaniel and be maintain out of the profit of his fortune  by his executor until otherwise provide for accord to the will the testator be  apprehensive of danger to his child from the resentment and violence which he  think his brother may exert after his death and be extreme anxious that his  will shall be effectual and his effect secure and dispose of so as to answer  the purpose thereby intend he direct the respondent Byrne to carry his brown  er p ready money bind and note to Dublin to be lodge there for safe custody  and to lie the will before counsel and to prevent mistake he make his daughter  Catherine write a particular account of the money bind and note so send the  respondent Byrne go immediate to Dublin for that purpose and during that time  the testator execute three different lease date the that of September by one  of which he demise to the respondent Byrne the mansionhouse and middle part of  Rathdaniel contain acre at S a acre by another be demise to he that part of  Rathdaniel call Ballyhurst at S a acre and by the three he demise to he  another part call Rahendaw contain acre at S a acre these lease be for the  term of seven year to commence from the that of march then last at the  expiration of which the old son John will if he live attain his age of and the  intent of grant they be that if the testator die the value and income of the  say estate may be fix and ascertain during the minority of his son in order  that the same shall be apply in keep the child together at the mansionhouse  until his son arrive at his full age but that in case the testator shall  recover from that indisposition the say brown lease shall be surrender and so  he inform the respondent Byrne who promise to deliver up the same accord the  testator die some time in the night of the that or early in the morning of the  that of September and immediate after the removal of his corpse out of the  house the say William Lucas with a number of arm man forcible take possession  of the house and turn the respondent Byrne and the child out of it and leave  about twenty people in it to keep possession for he he also take possession of  the stock that be upon the ground and sell a great part thereof and though he  have hear that his brother have make a will and have actual see a copy of it  and know that the testator at his death have good in several diocese to find a  prerogative jurisdiction and have actual cause a caveat to be enter in the  prerogative court against prove any will or grant any administration till he  be hear yet in order to give a colour to his possess and dispose of the effect  of the decease he apply to the consistorial court of the diocese of leighlin  in which diocese his brother die upon a suggestion that he die intestate and  by that mean obtain administration the respondent Byrne propound his will in  the prerogative court and cause citation to issue against the say William  Lucas the brother and the five sister of the decease in order to prove and  establish the will to this citation William Lucas appear by his proctor and  allege among other thing that Matthew Lucas be of insane mind memory and  understanding at the time of make his will issue be join and witness examine  this cause come on to be hear in the prerogative court on the that of march  when a definitive sentence be pronounce in favour of the will and the burden  of the execution thereof with administration of the good right credit and  chattel of the say Matthew Lucas be grant to colonel Joshua Paul and the  respondent Byrne two of the executor save the right of the other executor to  prove the will when he shall be capable by law of so do William Lucas appear  so full convince of the justice of this sentence that he deliver up to the  respondent Byrne peaceable possession of the several farm he have enter upon  return the stock and cattle which he have not dispose of and pay some of the  money which he have receive for that part of the stock which he have sell the  respondent Byrne enter upon the management of the estate for the benefit of  the child and colonel Paul though of a great age declare he will act whenever  it shall become necessary and in the mean time direct his agent Mr George  warren to keep a account of the rend of the farm and to inspect and inform he  of the conduct of the respondent Byrne in the management of the estate John  the old son of the testator die soon after and the respondent Francis Lucas  the second son on the that of brown September file his bill in the court of  exchequer in Ireland by the respondent Byrne his next friend to perpetuate the  testimony of the witness to the will upon which the three subscribe witness be  examine and William Fenellon one of the witness be cross examine on the part  of the say William Lucas the defendant in that cause depose that the testator  appear not to be in his sense at the time of the execution of the will  although upon his examination in the prerogative court he have swear that the  testator be in his sense at the time of the execution of it on the that of  June William Lucas exhibit his bill in the say court of brown er p exchequer  against the respondent Francis and Charles Lucas Catherine Lucas and Caroline  and mary Lucas the survive five natural child of Matthew Lucas Judith be then  dead and against the respondent Byrne and Richard mulligan in order to set  aside the will as to the freehold lease and to be decree the profit of the say  leasehold land and for a account and other purpose therein mention to this  bill the respondent Byrne put in his answer on the d of November and Francis  and Charles Lucas and Catherine Lucas by their guardian and the say Richard  mulligan put in their answer on the that of the same month whereby they  several insist on the validity of the will and deny the suggestion of the bill  but Caroline and mary the two other child by their answer admit that Matthew  Lucas be insane at the time of make the will however they both die before  issue join and therefore no further notice be take of they in the cause  William Lucas the plaintiff reply to the answer of all the other defendant and  the cause be at issue witness be examine on both side and a order be obtain by  the respondent Francis to read the deposition in the cause for perpetuate  testimony save just exception and the like order be obtain by William Lucas  for read the cross examination of William Fenellon on the that of may the  cause be hear when it be agree on both side that there be a contrariety of  evidence concern the sanity of the testator and that the same be proper to be  try and that the proof on each side shall be enter as read the court direct  that the two follow issue shall be try in feign action at the then next summer  assize to be hold for the county of Carlow where the say Matthew Lucas live  and die and where the great part of his estate lie videlicet whether the will  bear date the that day of September in the plead mention be at any time and  when duly execute by the say Matthew Lucas and if so whether the say Matthew  Lucas be of sound and dispose mind memory and understanding at the time of  execute the say will or not and whether the lease in the plead mention and  allege to have be make by the say Matthew Lucas to the respondent brown Henry  Byrne bear date the that day of September or any or either and which of they  be or be duly execute by the say Matthew Lucas and if so whether the say  Matthew Lucas be at the time of the execution thereof of sound and dispose  mind memory and understanding or not the respondent be apprehensive they can  not have a impartial trial in the county of Carlow where the plaintiff  connection and interest be very great move the court on the that of June upon  affidavit set forth the value of the land the alliance and interest of the say  William Lucas in the say county and that he have frequent serve on the grand  jury there in order to make a interest among the gentleman of the county so  that a impartial trial can not be expect there and that there be several  material witness not yet examine in the cause who live in Dublin and can not  be prevail on to go to Carlow that the issue may be try at the bar of the  court some day in the next Michaelmas term by a jury of some indifferent  county and not by any jury of the county of Carlow William Lucas at the same  time move that the rend and profit of the land may be bring into court or that  a receiver may be appoint and he oppose the motion make on behalf of the  respondent on a affidavit make by himself wherein he deny have any influence  though he have many relation in the county of Carlow and urge his apprehension  concern the circumstance of the respondent Byrne and of his intention to quit  the kingdom in case the issue be find against he in answer to which affidavit  the respondent Byrne swear that he be in good circumstance independent of any  of the effect of the testator Matthew Lucas and that he have no intention to  leave the kingdom but the court refuse to make any order upon either of the  motion the issue be accord try at the assize hold for the county of Carlow in  August before Mr justice martial the trial of the first issue on which sexton  and Fitzgerald two of the subscribe witness to the will and many other witness  be examine on the behalf of the respondent and also several witness on behalf  of the plaintiff last above seventeen hour but Mr justice martial quit the  court before the jury give in their verdict and leave John smyth esquire one  of the justice of assize in court to receive the verdict the jury return their  verdict to Mr smyth that they find that the say Matthew Lucas do duly make and  execute his brown er p last will bear date the that day of September in the  plead mention but that the say Matthew Lucas be not of sound mind memory and  understanding at the time of execute the say will but the counsel and agent  for the plaintiff not be satisfy with the word of this verdict draw up another  which the jury find and return to the say John smyth in the word follow  videlicet we find that the will bear date the that day of September in the  brown plead mention be not at any time duly execute by Matthew Lucas decease  in the plead also mention and we also find that the say Matthew Lucas be not  of sound and dispose mind memory and understanding at the time of execute the  say will the second issue be try the next day before Mr justice martial when  the jury find the follow verdict videlicet we find that the lease in the plead  mention and allege to have be make by Matthew Lucas in the plead mention to  the defendant Henry Byrne in the plead also mention be duly execute by the say  Matthew Lucas but we find that the say Matthew Lucas be not at the time of the  execution of the say lease respective or of any of they of sound and dispose  mind memory and understanding the judge sign certificate of these verdict on  the that of November and the same be deliver into court on the that and upon  the that the plaintiff obtain two several order for confirm nisi the judge say  certificate on the that of the same month the respondent Francis and Charles  Lucas and Byrne apply by counsel to show cause against confirm the certificate  and at the same time move to set aside the verdict and for new trial on the  say issue at the bar of the court by jury of another county this motion be  find upon a affidavit of the respondent Byrne wherein he point out several  inconsistency in the evidence produce on the part of the plaintiff and more  particular as to one Margaret Ennis the plaintiff principal witness she be the  mother of Caroline and mary two of the daughter of Matthew Lucas and attend he  in his last illness she be also make a party to the plaintiff bill as guardian  to her daughter and by the answer which she put in for her daughter she admit  the charge of insanity of the testator at the time of execute the will and  lease but her child die before issue be join in the cause she be no long  regard as a party to the suit and be produce on both trial at Carlow as a  witness for the plaintiff and crossexamined by the respondent it be allege by  the respondent that she have tell Mr George warren that she have hear a  conversation between the decease and his sister Higginbotham some hour before  his death in which he tell his sister that he have make his will and leave her  a legacy in it and further that she declare to warren that Mr Matthew Lucas be  in his sense at the execution of his will and of the lease but be  crossexamined at the trial of the first issue she deny every thing of this  conversation Mr warren be afterward examine for the respondent swear positive  to it and upon the trial of the second issue Margaret Ennis in her  crossexamination acknowledge the conversation between the testator and his  sister this matter together with many other material circumstance in the trial  be set forth in a affidavit of the brown respondent Byrne which be confirm by  the affidavit of Mr John clark who attend likewise at the trial the plaintiff  oppose the motion for a new trial and to support his opposition file also a  affidavit to contradict the respondent Byrnes but the honourable Richard  Mountney Esq one of the baron of the court of exchequer have declare that he  have speak with Mr justice martial concern his opinion of the verdict and ask  he whether he think from what pass on the trial there ought to be new trial  grant and that Mr justice martial have declare it to he as his opinion from  what pass on the trial that new trial ought to be grant and have inform he  that the say Margaret Ennis have on the say trial swear to the effect above  mention the court on the d of December allow the cause show by the respondent  against confirm the verdict and grant new trial of the former issue to he have  on different day in the next ensue Hilary term at the bar of the court by two  separate jury of the county of Carlow to be strike by the chief remembrancer  or his deputy and they refuse to give the plaintiff the cost of the former  trial and direct that the plaintiff and the respondent shall be at equal  expense in the trial of the issue at bar the first issue accord come on to be  try at the bar of the court of exchequer brown er p on the that of January by  a jury of the county of Carlow when it be full prove that Matthew Lucas have  for several year before his death a dislike and aversion to the plaintiff that  he have a considerable time before his death a settle and deliberate intention  to leave his fortune to his natural child and no part thereof to the plaintiff  and that he have always educate and support his natural child in such a way as  show the utmost paternal regard for they but though the execution of the will  and lease and the sanity of the testator at the time of execute the same be  sufficient prove and though no one deny the testator have lucid interval  during his illness except Margaret Ennis who on this trial be so sanguine as  to contradict what she have admit in her crossexamination on the trial of the  second issue at the assize of Carlow yet the jury after a trial of twelve hour  find the follow verdict videlicet we find the will in the plead mention be  duly execute on the that day of September by Matthew Lucas but that the say  Matthew Lucas be not of sound and dispose mind memory and understanding at the  time of execute the say will the next day the respondent give notice to the  plaintiff of a motion intend to be make for set aside the say verdict and for  a new trial of the say issue at the bar of the court in the next ensue term by  a jury of a indifferent county and not by a jury of the county of Carlow the  court be accord move and the motion be support by the former affidavit and by  a affidavit make upon this occasion by the respondent brown Byrne and oppose  by the plaintiff with another affidavit and the matter be debate on the saint  of January and saint of February the court who know all that pass on the trial  and be dissatisfy with the verdict be please to order that a new trial of the  first issue shall be grant the verdict on the say first issue be contrary to  the weight of evidence and that the say first issue shall be try by a jury of  the county of Dublin at the bar of that court on the second law day in the  next easter term and that the second issue direct in the cause shall be try by  a separate jury of the county of Dublin at the bar of that court on the three  law day in the say term under the term of the former order that be at the  equal expense of both party and without give the plaintiff cost of the former  trial from this order the plaintiff William Lucas appeal but die soon  afterward the appeal be duly revive in the name of the present appellant on  who behalf it be say W Murray W Noel that upon the first trial of both the  issue before Mr justice martial the jury find a verdict in affirmance of the  title of the heir at law that the question be a single matter of fact of which  the jury be the proper judge and that Mr justice martial declare he have no  fault to find with the verdict that upon the new trial of the same issue  relate to the execution the verdict be also against the will and the court  before who that issue be try do not say that the verdict be against evidence  but only that it be against the weight of the evidence the weight of evidence  where witness be examine on both side depend in a great measure upon the  credit of the witness of which the jury and not the court be the only judge  and the jury be the proper judge of the credit of witness be a capital reason  why issue be direct in case where there be a contrariety of evidence by live  witness that the county shall not have be change or if change it shall have be  to the county of Wicklow where some of the land lie and which be adjacent to  the county of Carlow or to some other adjacent county where the jury may have  knowledge of the witness and of their credit and not to the county of Dublin  where neither the witness or their credit be know that if any of the appellant  witness shall die before new trial can be have they may thereby suffer  irreparable loss after two trial already have in their favour that as the  question be sanity or insanity which be a plain single fact and as trial at  bar be expensive to the party the issue shall not have be order to be try at  bar and that the court have grant a three trial shall at least have give the  appellant the cost of the former trial on the other side it be contend c Pratt  king Evans that the late William lucas title if any be mere as heir at law his  proper and natural remedy to set aside the testator will and lease be at law  and the direct of issue be either a matter of mere brown indulgence to he or  to satisfy the conscience of the court as to the due execution of the will and  lease respective and therefore the court have a right to direct those issue to  be try upon such term as to they seem just and brown er p reasonable especial  in respect to Lucas for who benefit alone the same be direct to be try that  the verdict find on the trial of the issue at nisi prius in the county of  Carlow be certify by the judge to have be both give contrary to evidence and  the verdict afterward give upon the trial of one of those issue at bar appear  to the court before who it be try to have be likewise give contrary to the  weight of evidence the court be bind to order a new trial even for the benefit  of Lucas since the court can neither establish the verdict so give against  evidence or make any decree thereon as pray by his bill and as it must and do  appear to the court that the verdict find upon all the trial so contrary to  the weight of the evidence must have arise from a partiality and prejudice in  the mind of the freeholder of the county of Carlow the court be under a  necessity for the end of justice which can only be attain by a fair and  impartial trial to order the issue to be try by a jury of some other county  which be more indifferent and therefore the court do right in direct such new  trial to he have by a jury of the county of Dublin which will be equal  impartial with any other jury and will be attend with the least expense to the  party that as such issue be direct to be try for the information and  satisfaction of the conscience of the court and rather for the benefit of  William Lucas and as the respondent be no way to blame it be but right and  reasonable that such new trial shall be at the joint and equal expense of both  party and Lucas can have no ground to complain of the order on that account  since he may have proceed at law if he have think proper and he have the less  reason to complain since he submit to the same term when the first trial at  bar be order after hear counsel on this appeal it be order and adjudge that  the order therein complain of shall be affirm with the follow variation  videlicet that the respondent do pay the appellant their cost of the last  trial in this cause to be tax by the deputy remembrancer of the say court  before any new trial he have and that the say court do appoint such time for  the new trial of the first issue in this cause and also for the try of the  second issue as shall be proper and it be further order that the say court of  exchequer shall give the proper direction for carry this judgement into  execution and all such further direction as shall be just jour vol p