1803.

BOWLES

V.

Semble, a fine

sur concessit begins to operate as a bar only from the execution.

aside; and I think the title of the plaintiff is as cestui que trust of Richard Bowles, and therefore that the fine (what ever operation it might have had if the legal title was in STEWART him) cannot bar the equitable title of the person claiming as cestui que trust under him. Therefore I shall not enter into the consideration how far such a fine could or could not operate as a bar in another case; it would require consideration. The impression on my mind is that it would not operate as a bar under the statute, but merely as a grant, there having been no execution to make a seisin in the conuzee, who would not therefore claim by force of the fine. I do not deliver any opinion what difference it would make in such a case, if execution had been sued.

What has been said applies to the premises in Charlesstreet and Ormond-quay, and the decree of Lord CLARE is right with respect to these premises, except so far as it omits. to direct a conveyance to the plaintiff, and it is right also so far as it directs the release to be set aside, and the leases to be handed over; the direction as to the rents and profits and the personal estate of B. is proper; with respect to the account of rents and profits, the 450l. which has been received, must be given credit for. Then as to Stoney-batter an inquiry must be directed.

ແ

The decree" affirmed said former decree, so far as it set aside the release obtained from the plaintiff, and declared that the leasehold estate on Ormond-quay and in "Charles-street, ought to be deemed to have been vested in "General Phineas Bowles by virtue of the lease obtained by "him in 1734 from Lord Mount Cashell, for three lives

"with covenant for perpetual renewal, either for his own "benefit, as having purchased the leasehold interest for 66 years which Samuel Hill had therein, or in trust for the purposes to which the leasehold estates for years of Samuel "Hill, were applicable under his will: and that in either "case the absolute property therein ought to have been "deemed to have vested in his eldest son William Phineas "Bowles, subject to such interest as his mother might claim "therein, either under the will of General Bowles, or un"der the will of Samuel Hill: and that General Bowles 66 having no other estate in the city of Dublin to answer the "devise in his will except the house in Mary's-abbey speci"fically given to William Phineas Bowles, Alithea Maria 66 ought to be deemed to have entered on the tenements on "Ormond-quay and in Charles-street, after the death of "General Bowles, by virtue of the devise in his will, and 66 to have elected to take the same under such will, and to "have obtained the renewal obtained by her in her life time, "in trust for herself for her life, and after her death in "trust for her son William Phineas Bowles, and that the 66 same on her death descended and came to the late de"fendant Richard Bowles, subject to the same trust, and "that the defendant Richard Bowles ought on the death of "the said Alithea Maria to have conveyed the same to the plaintiff and his heirs, and to have delivered up the pos"session thereof to him with the title deeds and writings 66 relating thereto; and therefore affirmed said decree so far "as the same relates to the said leasehold premises on "Ormond-quay, and in Charles-street, except that the master "in taking the accounts of rents and profits of the said "leasehold premises is to give the defendants credit for the sum of 4501. paid to the plaintiff on executing the release "as for so much money advanced by defendant Richard "Bowles to plaintiff in part of his demands on the said de

1803.

BOWLES

V.

STEWART.

1803.

BOWLES

υ.

STEWART.

"fendants, and defendants Stewart and wife, and all "other proper parties were directed to execute a convey

ance of said leasehold premises on Ormond-quay and "in Charles-street to plaintiff, free from any incumbrance "made thereon by said Richard Bowles, except any lease "made by him thereof bona fide at the best rent, and the "defendants were directed to deliver the title deeds and "writings relating thereto to the plaintiff. And as to "the leasehold tenements in Stoney-batter, the master was "directed to inquire what was the title of said Samuel "Hill thereto at the date of his will and what was then "the subsisting lease thereof, and whether any and what "lease thereof was obtained after his death, and particu66 larly by the said General Phineas Bowles, and whether "any title therein became vested in the said General Phineas "Bowles by any and what means, and particularly whether "the same in the life time of the said Samuel Hill was sub"ject to any and what mortgage or other incumbrance, and "whether any and what debts of said Samuel Hill, or any " and what charges or incumbrances on his estates and par❝ticularly on the said estate at Stoney-batter were paid off by "the said General Phineas Bowles out of his own money or 66 were discharged out of the sum of 3,000 mentioned in "the settlement of June 1724, and also to inquire particu

larly how such sum of 3,000l. was applied, and especially "whether any part thereof constituted the charge on the Kil"mainham estate mentioned in the will of the said General "Phineas Bowles, or by what means such charge was created "and what was the nature and amount thereof, and how "such sum of 3,000l. was paid or applied: and declared "that in case the said Gen. Phineas Bowles did not become "entitled to the said Stoney-batter estate, yet in as much as "he devised the same by his said will to said Wm. Phineas "Bowles his son and made a division of his property

"amongst his children founded on such disposition, the late "defendant Richard Bowles was bound to elect either to "take under the said will, and release all claim to the said "Stoney-batter estate, or to take against the said will, and to 66 relinquish all claim on his father's estate to said Wm. P. "Bowles his brother: and the master was directed to inquire "what interests the said Richard Bowles took under his "father's will, and whether the same exceeded in value the "said estate in Stoney-batter, subject to the estate for life of "his mother in the said Stoney-batter estate either under the "said will of the said Samuel Hill, or under the will of "the said Gen. P. Bowles; and in case it should appear "that the interest which the said Richard Bowles took un"der his father's will exceeded in value the remainder in "said estate in Stoney-batter; it declared that the said Rich"Bowles ought to be taken to have elected to take under "his said father's will, and in that case affirmed said decree 66 as to said Stoney-batter estate, and decreed it to be convey"ed to the plaintiff by the defendant Stewart and wife and all "other proper parties, free from any incumbrance made "thereon by the said Rich. Bowles except any lease made by "him thereof bona fide at the best rent; and defendants were "ordered to deliver to plaintiff the title deeds and writings "relating thereto : and in case the master should find that the "remainder in said Stoney-batter estate exceeded the value "of the benefit taken by said Richard Bowles under his "father's will, then and in such case all further directions " as to that part of the decree to stand reserved. And the "parties were ordered to produce on oath before the master "all such deeds evidences and documents relative to the "matters in question, as the said master should direct: and "the master also was directed to inquire whether the debts "of said Samuel Hill have been paid and out of what fund,

1803.

BOWLES

v.

STEWART.

1803.

BOWLES

v.

STEWART.

"and the receiver heretofore appointed in this cause to be "continued as to said premises in Stoney-batter until fur"ther order; and the register of this court forthwith to dedeposit said will in the court of prerogative; and reserved "all further directions till after the master should have made "his report."

66

Reg. Lib. xlix. 198.

KEENAN v. BOYLAN.

MR. SCRIVEN moved on a former day, that an affida

vit made in this cause might be taken off the file and delivered to the clerk of the crown for Leinster, in order to be sent up to the grand jury of the county of Louth, to have bills of indictment for perjury found thereon.

Mr. Burston on the other side contended that this motion was unprecedented and unnecessary; for that the constant practice of grand juries here had been to find such bills. upon attested copies. He referred to Bull. N. P. 239, (where Mr. J. BULLER says "perhaps such office copy "would be sufficient for the grand jury to find the bill ;") and mentioned the case of O'Connell v. Butler, and O'Hara v. Martin in the Exchequer some time ago, where a like motion was refused on these grounds.

The Lord CHANCELLOR had some doubts whether the order ought not to be, to let the officer of the court attend with the affidavit, instead of handing it to the clerk of the crown. But as to the necessity of the motion he was strong