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1803,

Bow LES

STEWART

account of rents and profits, and that the fine which had been levied might be decreed to accrue to the use of the plaintiff, and to have been levied by R. Bowles as his trustee of these premises. This bill went no higher in the deduction of the title than the will of General Bowles : It took no notice of the original tenure of these premises, nor of the will of Samuel Hill, nor of the settlement of 1724, of which the plaintiff was not then apprized.

Richard Bowles answered this bill, and insisted on a title under the will of Samuel Hill, and that General Bowles could only be considered tenant for life of these premises, and had therefore no power to devise them: he also relied upon the fine and proclamations, and five years' non-claim as a bar to the plaintiff's claim.

In February 1791, the plaintiff wrote a letter to the defendant Richard Bowles, expressing a desire of accommodation, and saying that “ he would rather have 2,000). and “ be on amicable terms with him than the whole property 6 which with the arrears would amount to six thousand in

case of the suit going on.” This letter was enclosed by Mr. Bowles, who was a resident in England, to his solicitor in Ireland, with directions to him to act in whatever manner he thought most advisable.

About the same time an application having been also made to Mr. Bowles's solicitor with a view to a compromise, by a Mr. William Bowles, with whom the plaintiff had been in correspondence on the subject of his claim, he desired him to inform the plaintiff that he as solicitor for defendant had laid a case before counsel, who had given an opinion thereon in favour of defendant, and he therefore thought the plaintiff could not succeed in his suit, and would not recommend it to Mr. Bowles to give him any sum of money as a matter of right; but that on Mr. Wm. Bowles's account, he would

1803.

BOWLES

STEWART.

recommend it to Mr. Bowles (his client) to make him what ever compliment he should think proper, on the plaintiff executing a release of all claims and dismissing his bill, and throwing himself on Mr. Bowles's generosity. Pending this treaty, Mr. Bowles's solicitor was served with a subpena ad test. to prove the hand-writing of his client to certain letters, which he having declined to do, conceiving it contrary to his duty as solicitor, an application was made to the court for an attachment against him; this circumstance produced an application from Mr. Wm. Bowles to plaintiff on his behalf to prevent any proceedings on the attachment, and to urge strongly an accommodation of the entire suit. The corres. pondence continued until it was at length agreed that plaintiff should accept of a sum of 450l. in satisfaction of his claim, should execute a release, and dismiss his bill.

Accordingly a deed bearing date the 14th May 1791 was executed by the plaintiff, releasing all his right in the most general terms. A consent was also signed by him for dismissing his bill, and it was dismissed accordingly. The plaintiff, after executing this release, applied for a copy of the opinion of council which was stated to him to have been given on the title of the defendant: In this the settlement of 1724 appeared to be noticed, which induced plaintiff to procure a search to be made in the registry office, where he discovered a memorial of that deed. The original case was not produced to the plaintiff, but it afterwards appeared thereby that he was also entitled to a distributive share of his father's personal fortune, which he was not before apprized of, though the release was made in terms sufficiently large to comprize this claim. The plaintiff's friends being extremely dissatisfied with the compromise he had made, a supplemental bill was filed on the 18th July 1792, putting in issue distinctly his title as discovered,

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1803.

BOWLES

V.

STEWART

charging that General Bowles had by the 3,000l. paid on his marriage, become a purchaser of the premises in question; and praying to be decreed to the possession thereof and to be relieved against the release as obtained by fraud and surprize, and against the dismissal of the former bill, and praying a discovery and production of title deeds. To this bill Mr. Bowles's solicitor and Mr. Wm. Bowles were made defendants; and it charged that they had conspired on behalf of defendant Richard Bowles to procure from plaintiff such fraudulent release. Richard Bowles, the original defendant, having died and bequeathed the premises in question to the defendant Stewart and wife ; the present bill was filed on 27th January 1796, as an original bill in nature of a bill of revivor against the present defendants as devisees of Richard Bowles, for the purpose of obtaining as against them the benefit of the former proceedings and the relief sought thereby

The cause came on to be heard before Lord CLARE, when his lordship decreed the release to be set aside as fraudulent and void, and the plaintiff to be restored to the possession of the premises in question. The cause now came on, upon a petition for a re-hearing.

For the plaintiff, Mr. Attorney General and Mr. O'Dwyer insisted that it was to be inferred under all the circumstances of this case that the absolute interest in the premises now sought to be recovered was purchased by General Bowles from the trustees. These premises were not comprised in the settlement, and yet he appears to have been in posses, sion of them, and to have exercised several acts of dominion over them. If he were absolute owner, then the entire interest under his will vested in the father of the plaintiff ; and by his will they were devised to the plaintiff, subject to the life estate of Mrs. Bowles, who did not die

1803.

BOWLES

v. STEWART

until 1777: There is evidence that the plaintiff was then a minor : Mr. Bowles got into possession and levied a fine, but that fine and non-claim cannot be allowed by a court of equity to bar the plaintiff. Mrs. Bowles having become by the renewal obtained by her a trustee, Richard Bowles must also have been a trustee, and having in his possession all the title deeds and keeping the plaintiff in utter ignorance of his right, no act done by him can bar the plaintiff's equitable title. Lord CLARE was of opinion on the authority of a passage in Co. Lit.(a) that this fine only operated as a grant and did not divest the estate or work any legal bar.

As to the release which has been obtained : it was procured before any full or fair disclosure was made of the plaintiff's title. It was obtained under such circumstances that it ought not to be allowed to bar the plaintiff's right ; he was deceived and surprised into the execution of it. It is conceived in terms sufficiently large to release the right of which he then had no knowledge. Under these circumstances the release and the dismissal of the bill founded thereon should not be allowed to stand in the way of the relief prayed.

Mr. Saurin, Mr. Plunket, and Mr. O'Driscoll, for the defendants.

The first question is whether the plaintiff at the time of filing his original bill in 1789 had any title ; and if he had, then whether it has been since effectually released. As to the first question : it is true these premises were not included in the settlement of 1724, because they were to be a fund for the payment of debts : but subject thereto they were to be settled agreeably to the limitations in the will of Samuel Hill. There is no evidence of their having been purchased by General Bowles, nor any sufficient ground for

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1803.

BOWLES

STEWART

presúming it; then the freehold leases obtained by General Bowles having been grafted on the original leases, are to be considered as subject to the same limitations which these leases are inade subject to by the will of Samuel Hill; and although Gen. Bowles took upon himself to dispose of them by his will be had no power so to do. On his death Mrs. Bowles became tenant for life under the will of Samuel Hill with remainder in quasi tail to her first and other sons. William Phineas the eldest son did no sufficient act to bar the intail, for his will cannot be considered as sufficient to do so: and therefore he having died without lawful issue, R. Bowles his next brother (the original defendant) became entitled on the death of their mother in 1777, when he entered, claiming title under the will of Samuel Hill and the grafted interest taken by General Bowles; and by the operation of both he became quasi tenant in tail of these purchased leases. In 1780, he levied a fine sur concessit with proclamations. Plaintiff was then of age and no claim was made by him until the bill filed in 1789 : this fine therefore is a bar of any title the plaintiff could originally have pretended to. His estate, if any, was previously turned to a right by the adverse possession of Richard Bowles : there was no privity between him and Richard Bowles to prevent the fine and non-claim barring: the renewals which were taken did not create any trust as between them; they might have given the plaintiff a title to some equitable relief, but R. Bowles entered and was in possession claiming an adverse equitable title as well as the legal title ; and therefore there is nothing to prevent this fine and non-claim operating as a bar. Though it is not a fine of the highest kind, yet it was such as only could be levied of this sort of estate, and proclamations having been made upon it according to the statute, it must bar. The passage in Littleton, on which Lord Clare relied does not apply to this case. Then even supposing the plaintiff's VOL. I.

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