brown case earl OF clanrickard and another appellant thomas Bourke respondent  where a defendant answer to the same thing to which he insist by his plea that  he ought not to answer the answer overrule the plea the above abstract be copy  from vin and Eq ab the point of the case be thus state in the report of it by  comens a person restore after a attainder for high treason shall have the same  equitable interest in ever part of his estate as he have before the attainder  the last order of the Irish chancery reverse viner vol p can Eq can ab can  comens Rep king Charles two by his letter patent date the that of April grant  several manor land tenement and hereditament charge with the payment of pound  to Charles viscount Muskry unto Rickard then earl of clanrickard in tail male  remainder to his heir male of the body of Ulick first earl of clanrickard  remainder over to his right heir and which letter patent be afterward confirm  by the act of settlement and explanation protestant child of the earl of  clanrickard and the Lord Bophin it be enact that the appellant then call Lord  Bophin and his heir shall be and be thereby restore in blood and lineage and  shall be restore to hold have and enjoy all their honour title dignity and  privilege whatsoever and all the land tenement colonel William Bourke in the  lifetime of his brother the say earl Rickard marry the lady lettuce Shirley  and by her have issue two son Rickard late earl and the appellant John and  after her decease he marry the respondent Helen by who he have issue three son  who all die without issue and two daughter Margaret viscountess Iveagh and  Honora since also dead in earl Rickard die without issue whereupon the honour  and estate charge of earl Ulick and about nine year afterward the colonel by  deed of lease and as aforesaid descend to the say colonel William Bourke as  heir male of the body release and common recovery limit the barony of  Dunkellin inter alian to the respondent countess Helen for life for her  jointure with remainder over and declare that in case the pound shall be  demand or recover the estate settle shall only bear its proportion thereof in  earl William make a additional jointure to countess Helen of other land and  tenement in recompense of such part of her former jointure as have be or may  be evict by reason of encumbrance but subject to a power of revocation and in  he make a settlement of other part of the say estate upon his son by the first  marriage and also make a provision of pound for his daughter Margaret Payable  at the age of sixteen or marriage but subject likewise to a power of  revocation in October earl William die and Rickard his old son by the first  marriage take possession of the estate subject to the pound with a great  arrear of interest and several other encumbrance and countess Helen be keep  out of her jointure brown whereupon great difference arise in the family to  compose which all party concern submit to reference and enter into bind to  perform such award as the referee or umpire shall make in a award be make  ascertain what proportion of the estate shall be apply for payment of the debt  and encumbrance and what part thereof the son of earl William and countess  Helen shall respective enjoy and all party have agree to such award a act be  pass in Ireland by mutual consent con brown er p firming the same but this act  be make after the abdication of king James two it be void and can not have the  force of a law after the revolution the respondent colonel Burke who marry the  other respondent countess Helen and the son earl William his first marriage  become forfeit person but the colonel and earl Rickard the old son of earl  William by his first wife be comprise in the article of Limerick and Galway  and by that mean save their estate whereupon the respondent colonel Bourke in  right of the other respondent countess Helen enter upon all the land limit to  her in jointure by the settlement of and contrary to the award whereby she be  to have a less proportion of the land until the debt portion and encumbrance  be pay off and on that account the proportion allot her by the award be to be  free by those encumbrance to which her jointure be before subject by a act  that and that William c it be enact that all honour manor and land of what  nature or kind soever within the realm of Ireland whereof any person convict  or attaint of high treason or who shall be so before the last day of Trinity  term be seize possess or entitle to on or since the that of February shall be  vest in certain trustee therein name and their heir in order to be sell for  the purpose in that act mention provide always that nothing therein contain  shall be construe to take away impeach or prejudice any estate right title  interest etcetera which any person who have be adjudge to be entitle to the  benefit of the article of Limerick or Galway may claim in or out of the say  forfeit estate and in the same act provision be make that all person except  his majesty and those claim by from or under the crown or the forfeit person  and those claim by from or under they have any estate right title interest  charge or encumbrance whatsoever in law or equity in to or out of any of the  premise so vest in the say trustee shall on or before the that of August enter  their claim before the say trustee or in default thereof every such estate  right title etcetera shall be be thereby declare void and the estate liable  thereto or charge therewith shall from thenceforth be free and discharge of  and from the same and if such claim shall not be allow such claimant shall be  for ever brown debar and without remedy but if allow the same shove never  afterward be impeach avoid or call in question by the king his heir or  successor trustee or any person under they in pursuance of this power to make  claim colonel Bourke in right of countess Helen his wife exhibit his claim  before the trustee for all the land limit for her jointure by the say  settlement in and and obtain from the trustee a allowance of his claim but no  notice be therein take of the award by a act Ann saint c entitle a act for  make provision for the protestant child of the earl of clanrickard and the  Lord Bophin it be enact that the appellant then call Lord Bophin and his heir  shall be and be thereby restore in blood and lineage and shall be restore to  hold have and enjoy all their honour title dignity and privilege whatsoever  and all the land tenement hereditamets etcetera of what nature or kind soever  which he or they will have be entitle unto in case he have not be attaint and  the act of that and that William have never be make but provision be make in  this act that the appellant shall by the method therein prescribe pay pound to  the use of the public and pound for the portion of the wife of Alexander  Pendarvis and in the same act be a clause that all adjudication and decree  make by the trustee before the that of march for any part of the land tenement  or hereditament of the say Lord Bophin shall be as good and effectual as if  the say act have not be make and all pretence claim and demand to or for any  part of the say estate or any charge or encumbrance thereon not claim or allow  by the trustee unless the same be allow by this act shall be void and the  estate free and discharge there from as sell by the say trustee in march the  respondent colonel Bourke exhibit a bill in the court of chancery in Ireland  against the appellant and other to enforce the payment of the portion provide  for Margaret afterward viscountess Iveagh by the settlement in whereupon the  appellant exhibit a cross bill against the respondent pray that the land and  tenement limit to they may be exonerate from the brown er p debt and  encumbrance affect the same pursuant to the award and that the defendant may  account for the rend and profit of the jointure land over and above what  countess Helen be to receive pursuant to the award and to perform the say  award to this cross bill the respondent plead the say several settlement fine  and recovery by earl William the say several statute of that and that William  and saint Ann and the allowance of their claim by the trustee in bar to the  demand by the award Com Rep and on argue this plea on the that of June the  then Lord chancellor of Ireland order the same to stand for brown a answer  with liberty to except but on a rehear the d of February the plea be allow  with cost from this last order the present appeal be bring and it be urge I  comens r Raymond in support of it that the statute Ann be a act of restitution  not a new grant whereby the appellant be restore to their honour and estate in  the same manner as if there have be no attainder and the statute of that and  that William have never be make and this for a sum of pound pay by they for  the use of the public that therefore they ought to have the same right and  advantage and consequent the same benefit from the award and the respondent  agreement to it as if no forfeiture have be commit but which if this plea  stand they will be entire deprive of that the jointure settle on the  respondent countess Helen in and be subject to the debt of pound and other  encumbrance in proportion to the rest of the appellant estate and be no way  discharge unless by virtue of the award if then the respondent will take  advantage of the award to excuse themselves from the proportion which the  jointureestate ought to pay towards such debt and encumbrance they ought to be  bind by the same award with respect to the proportion of the jointureestate  which they ought to enjoy and to account for the profit of any other part more  than what they be allow by the award to receive that by the proviso in the  statute of Ann the decree of the trustee be set upon the same foot on which  they stand by the statute of that and that William whereby those decree be  final and not to be impeach by the crown the trustee or any purchaser under  they and all claimant if they make not their claim by a limit time shall be  for ever bar and therefore if the pound or other encumbrance which affect the  jointure or the appellant estate have not be claim before the trustee they  have for ever bar but such claim be make and allow the question now be not  whether any estate or charge upon it not claim shall be allow but whether any  charge or encumbrance claim and allow shall not be satisfy and apportion out  of or upon the land liable thereto in such manner as equity shall direct or as  the party themselves by any private agreement have assent to and that it be a  rule in court of equity that when the defendant answer to the same thing which  he insist on by his plea he ought not to answer the answer overrule the plea  which it be insist the respondent have do in this case and therefore it be  pray that the order allow the plea may be reverse and that the respondent may  answer in such manner as that the merit of the cause may be hear on the other  side it be argue S Cowper S mead that the allow the respondent title to be  good which be all that be do by the order appeal against be no more than what  have be already do by the act of parliament make in favour of the appellant  and by which they be restore to their blood and estate that brown even the  present appellant oppose the allowance of the pretend award by the trustee for  forfeit estate in Ireland when the late earl Rickard who live till about the  year make some claim before the say trustee under colour of that award and  which claim be disallow by the trustee that if the plea shall be overrule it  will tend to give a great handle to people to controvert and question the  decree of the say trustee which be make final by act of parliament and be the  occasion of endless suit to the almost ruin of the respondent as well as other  who have purchase under such decree that if any such pretend award be make in  it be not the part of a court of equity ex debt is owed the whole of the laws  to establish a award and in the present case it will be of the most dangerous  consequence since this pretend award have be so long neglect and not regard in  the family and since there have be such decree and proceed which brown er p be  now all attempt after so long a acquiescence to be overturn by set up this  pretend award but after hear counsel on this appeal it be order and adjudge  that the order complain of shall be reverse and that the say plan shall stand  for a answer with liberty to except accord to the order of the say court of  chancery of the that of June jour vol p