SIR William Barret, being in England, but having a considerable Estate in Ireland (part whereof he apprehended might be in­tail'd.)

Made his Will in Writing and leaves all his intail'd Land to Mr. Barret (his Heir Male) and those not intail'd to Mr. St Leger, 16. Feb. 72. his Unckle and his Heirs Males, making him Guardian of Mr. Barret; but yet he had a very little regard for him, declaring often the Respon­dent Mr. St. Leger should have his Estate.

At first Mr. St. Leger apprehended also that part of the Lands might be intailed, but afterwards discovering that they were not, exhibited his Bill in the Chancery in Ireland, to discover the Writings, and prove the Will, and examine the Witnesses, the Will being made here in Eng­land, and the Lands lying in Ireland: And to have the Deeds deliver­ed, and have the Benefit of Depositions taken in a former Cause, but between other Parties, viz. The Daughters of one Sir James Barret who claim'd Portions out of the Estate, and to be reliev'd upon the whole matter.

To which Bill the Defendant answered, and did not Object against the Jurisdiction of the Court; but by answer prayed to have a Determination of the Matter, saying he hoped it would appear at the Hearing, that the Estate was intailed. Whereupon

The Cause was heard, at which time the Questions were, 21. May. 77. whether the E­state were Old Andrew Barret's (an Ancestor of the Family of the Testa­tors) his Wife Katharines, and whether it was intail'd? And the Court after three days Hearing, directed a Tryal upon these Issues.

Whether Andrew were seiz'd in Right of his Wife Katharine of the Lands in question, and whether there was any intail, and of what Lands.

In which Tryal the Appellant join'd, and after a full Tryal at the King's Bench-Bar,

The Jury found that Andrew was seiz'd in Right of his Wife Katha­rine of particular Lands: 17. Feb. 78, And did not find he made any intayl, vid. the Judges Certificate.

After 13 several days hearing of Counsel on both sides, 20. June 77. the Court Decreed the Lands in the Bill (being those found to be Katharines by the Verdict) to the Plaintiff Mr. St. Leger, and an Injunction for Pos­session, but without prejudice to the Appellant, if any intayl should af­terwards be discovered, and brought to light, provided he first give Obedience to the Order of the Court.

Against which Decree Barret now Appeals, as if the Court had ex­ceeded their Jurisdiction in making a Decree. But it is conceived to be very Just, and agreeable to Reason; and the Appellant's Preceed­ings against it very unreasonable.

For the Plaintiff in the Decree Mr. 1 St. Leger could never have had a­ny relief without the help of a Court of Equity, either to discover what Lands were Intayled, (which must be done by the writings if any were) or to have the writings of the Fee-simple Estate out of Barret's hands, or to examine Witnesses who lived in England, and elsewhere to use at Common Law, if Occasion were. As also to have the Benefit of Depositions taken in another Cause between other Par­ties, but touching the same Estate.

The Appellant joyned to have the Cause determin'd in Equity (as before) and did not Object against it, 2 as hoping himself to have a fa­vorable Construction in Equity upon the Will, as to the Pretence of the Intayl. And then he Joyned in defence of the Tryal.

There being an Issue directed, 3 and a Verdict upon the Right, it would have been hard to have made all that signifie nothing, as it must, if there was no Decree made; But the Court being so pos­sest of the Cause, it was fit and just to make some Rule upon those Proceedings, and no other could be but the said Decree: For it would have been very unreasonable to have dismissed the Bill, when the Plantiff Mr. St. Legers's Right had been asserted upon the Tryal.

By the Decree the Appellant has all the favor shewed him that was possible, 4 for altho the Verdict found no entail by which the Court might have concluded him, yet he is left at Liberty to make out an entail at any time after, and have the benefit of it; but he knows there is, or can be none, for that the whole Estate was Katharine's In­heritance, and she out-lived both her Husband and her Eldest Son Sir James, and in truth did no Act to entail it, and neither her Husband, or Son, without her could entail it.

But the great Trouble of the Cause is, that Barret finding the mat­ter upon the Intail to be against him; and that he fails in his ex­pectation of making that out, one Alderman Dean, now starts up to oppose the Decree. And he pretends that he has purchased the Estate, of Barret. And so would render all that has been done voyd.

But that is very ill done of him: for he knew of the Suit, and after Issue joined in the Cause, has (as is pretended) purchased; so comes in pendente lite. And so the Judges of Ireland have Certified. And therefore no Consideration ought to be had of him.

And the Plaintiff in the Decree (as is humbly hoped) shall proceed for possession of the Estate, having been hung up (now seven years) by this Appeal, from proceeding on the Decree. And he hopes the Decree shall be Confirmed having been so Solemnly made.

As to the Appellants Printed Case given out this Sessions, this Re­spondent [Page 3]conceives it needs no Answer, the main of it being a scanda­lous Libel, Reflecting on his Grace the Lord Chancellor of Ireland, and some of the Judges, and on all the Jury.

He therein gives your Lordships some Lawyers opinions, hoping thereby to perswade your Lordships into a good Opinion of an ill Cause: Nay, he Prints Sir William Jones, and Sir Francis Pembertons Opinions, which if they ever did give, was upon his mistaking the Case; for the same Persons have given their opinion upon the Case truly stated, with their Reasons for the same.

That this Respondent was, and is well Intitled to have the Decree, against which the Appeal is brought, and not only those two, but the late Chief Justice Saunders, Judge Reymond, and Mr. Holt, have Con­curred therein.

But this Respondent did not think fit to put the same in Print, be­cause he is well assured, he shall by his Council give your Lordships at the Bar such Reasons, as will Convince your Lordships that the Appeal ought to be dismist, and the Respondents Decree confirmed.