case james reilly and other appellant robert ware respondent that may where a  person be make a party to a bill but not serve with any process no decree  ought to be make and much less a decree affect the right of such person DECREE  of the Irish chancery reverse it be plain that the very intent of a person be  make a party be mere frustrate if no process be serve on he see note at the  end of this case viner vol p note to can Eq can ab can in the year Luke earl  of Fingall marry Mabel countess of Fingall and in consideration of that  marriage and of the lady portion the land of Stirropstown Clangowna and  Killallan in Ireland be settle on Mabel for life for her jointure with  remainder to the earl in tail male after the death of earl Luke the say Mabel  countess dowager of Fingall in the year marry one colonel Barnewall and he be  afterward attaint of high treason on account of the Irish rebellion in the  jointureland of his say wife become forfeit and be afterward sequester and  distribute among the soldier and other adventurer from some of who one stirrup  obtain some lease or other conveyance thereof brown in Luke earl of Fingall  who be the issue in tail male be declare and decree a innocent person by the  commissioner appoint to put the act of settlement in execution in consequence  whereof he be restore to all his land in Ireland and particular to the  reversion and inheritance of the jointureland from and after the death of the  say countess earl Luke afterward die leave issue Peter earl of Fingall who  constant residence be in England in countess Mabel die whereupon earl Peter  send direction to his agent in Ireland to take possession of the jointureland  and this be accord do in a quiet and peaceable manner for the occupier thereof  be sensible of his lordship title ready agree to attorn tenant to he and he  consequent receive the rend and profit of the premise for several year after  without any interruption but in easter term the respondent exhibit his bill in  the court of chancery in Ireland against the appellant and also against the  say Peter earl of Fingall and one Garrett hogan and Christopher Murphy state  that the plaintiff be possess of the say land of Stirropstown Clangowna and  Killallan by virtue of a lease make by one Sarah Peppiat for year commence  from the saint of may demise the same to the say Garrett hogan for seven year  from ladyday who grant underleases of several parcel thereof to the defendant  John hogan Charles Bessi and James Lamb That Joseph Gibson the plaintiff agent  do in demise other part of the premise to the defendant Christopher Murphy for  a term of five year and which lease be by assignment become vest in the  defendant James Reilly and that the plaintiff have no counterpart of the lease  so grant by he and his agent the defendant and their undertenant at the  determination of their say several term not only refuse to pay he any rend but  attorned tenant to the defendant the earl of Fingall who pretend some right or  title to the premise and have make a lease thereof to some of the other  defendant and therefore the bill pray that the plaintiff may be restore to the  possession of the say land and that the defendant may account with he for the  rend and profit thereof the defendant Garrett hogan by his answer to this bill  admit that the plaintiff have grant he a lease of part of the premise for six  year only from ladyday and that he demise the same to the defendant Charles  Bessi and other who without his consent or privity give up the possession  thereof to the earl of Fingall in march and who as the defendant be advice be  the lawful owner and proprietor of the premise so demise brown er p the other  defendant the occupier admit by their answer that they first get possession of  the premise by derivative lease from Garrett hogan and that the rend for the  same have be duly pay to the plaintiff up to midsummer but that they then  attorned tenant to the earl of Fingall as apprehend that the brown plaintiff  have no long any right And the defendant James reilly and his son state that  the plaintiff have make a distress on part of the premise the earl have  replevied and that the suit be remove into the court of common plea the  plaintiff have thereby a opportunity of try the earl right but have decline so  to do although the earl of Fingall be make a party to this bill and a letter  missive be pray against he yet the plaintiff do not think proper to serve his  lordship with the same or any other process whatever on the that of February  the cause be hear when the Lord chancellor be please to order a injunction to  be award to restore the plaintiff to the possession of the premise and that  the defendant shall account for the rend and profit thereof and pay the  plaintiff his cost of suit from this decree the defendant appeal insist e  Northey r Raymond that the earl of Fingalls title and possession have be draw  into question and decree away without his be before the court or have any  opportunity of make his defence that it do not appear in the cause that the  respondent have any continue title and without proof thereof he ought not to  have be relieve but if the respondent have show a continue title yet by the  rule of equity he ought to be quiet in no other possession than such as he  have at the time of fill the bill and the earl of Fingall have then peaceable  possession without fraud he ought to have be continue therein till evict by  law that the title and possession in question be fit to be determine at  commonlaw and it appear by the plead in the cause that it be in a fair way of  be try on a avowry make by the say Sarah Peppiat under who the respondent  claim but that suit can not be bring to trial because the avowant refuse to  give oyer of certain deed mention in her avowry on the other side it be argue  S mead to be a direct fraud and breach of contract in the appellant without  the knowledge of the respondent and even while they be his tenant to betray  his possession for that by these mean the respondent be put under a very great  disadvantage in case the earl of Fingall shall think fit to set up any title  to the premise in any court of law or equity that possession be of very great  moment in Ireland because of the many title to land in that kingdom make under  the act of settlement in the reign of king Charles two for it often happen  that pretence of title be set up to land which be former forfeit and length of  possession be frequent a very necessary and almost the only defence where  write happen to be lose by reason of the trouble which have be in that kingdom  and therefore it be insist that the decree be just and agreeable to the rule  of equity and ought to be affirm but after hear counsel on this appeal it be  order and adjudge that the decree shall be reverse and that if possession of  the premise in question have be give under the say brown decree the same shall  be restore as it stand at the time the decree be pronounce and that the profit  of the same premise if any receive in the mean time under the say decree shall  be account for and pay to the appellant and further that the respondent on pay  to the appellant within one year next ensue the cost of the day when the cause  be bring on to hear in the court of chancery in Ireland and pound for their  cost of this appeal shall be at liberty to bring on the say cause again to  hear in the say court against the earl of Fingall and the other defendant as  he shall be advised This determination serve to correct a mistake of Mr viner  and the compiler of Eq can ab who have copy he in the place above refer to who  say the bill be dismiss because the tenant be only party and not the lord they  have attorned to a new title against their first lessor jour vol p brown er p