It has been urged on the part of the defendant, First. That the proposition came from Molloy and not from him: that Molloy had openly declared that the person who expected a lease must advance him money: but suppose any person were to advertise in the paper, that he would give ten per cent. for the loan of money, that would not alter the law. It is said also that the rent reserved was proved to be the full value of the land: but it is perfectly clear that the loan of money was given besides, and consequently that Irwin considered the lease to be of such value as to induce him to give that further douceur.

On public principle I cannot suffer the lease to be benificial to Irwin: it would trench so much on the statutes against Irwin: it usury that no transaction of this kind can stand, unless where it would work a manifest hardship and injury to the defendant to relieve for as this is usurious only in the contempla tion of a court of equity, such a court should not relieve if it were to work such a hardship or severity as would make it unconscionable to insist on rescinding the transaction. As to Molloy, I do not think him an object to be specially relieved; therefore, as far as Irwin has any benefit, I must decree this lease to be delivered up, and Irwin to account, but without prejudice to any claim which Mrs. Molloy may have on it. As to the lease made by Irwin, there appears nothing unfair in it, and I cannot suffer it to be affected, nor expose him to an action at the suit of the under-tenant, particularly under the circumstances of this case, in which the plaintiff, in some sort drew him into the transaction.

3.3

1804. MOLLOY

V.

IRWIN.

VOL. I,

1804.

MOLLOY

υ.

IRWIN.

· Reg. Lib. xlix. 377. "Declare that under the circum"stances of this case the defendant, F. Irwin, ought not "to derive to himself any benefit from the lease bearing "date the 30th day of April, 1798, in the pleadings men"tioned, and let said lease be deposited by said defendant, "with the register, and let the said defendant forthwith 66 execute unto the plaintiff and said defendant Coote Mol66 loy, a surrender of said lease by deed to be executed by plaintiff and defendant Coote Molloy, and containing a "saving of all rights of said Mrs. Susannah Molloy to the "annuity of 501. therein mentioned, in case she shall sur"vive said plaintiff her husband, and also a saving of all

66

rights of said James M'Cullagh to such parts of said pre"mises as in the answer of defendant F. Irwin, to plain"tiff's bill, is stated to have been granted by the said de“fendant to said James M'Cullagh; and refer it to the “master to take an account of what said defendant J. "Irwin made, or without wilful default might have made "of the premises in the pleadings mentioned since he en"tered into possession thereof, and of the sums paid or al"lowed by said defendant to plaintiff in respect of the "rent reserved by said lease; and in taking such account, “let the master charge the said defendant with a fair rent "for the lands in his own occupation to the 1st of May

next; and let the master also take an account of the sums “remaining due to defendant . Irwin, for principal "and interest, on foot of the sum of 2001. lent by the "defendant, Irwin, to the plaintiff on the notes in the 66 pleadings mentioned, and let the master in taking said ແ account set off the sums with which defendant F. Irwin, shall appear chargeable on the account before di"rected against him, after allowing the sums paid or al"lowed by him to the plaintiff for rent as aforesaid; first "in discharge of the interest, and next to sink the princi"pal of said 2001. and let the master thereupon strike a

"balance, and let said defendant, on the 1st day of May next, deliver to the plaintiff, Toby Molloy, the possession "of said premises, save that part thereof comprized in the "said lease to the said James McCullagh, and deliver up ❝to the said plaintiff the counterpart of the lease executed by the said defendant to the said James M'Cullagh, and "procure said James McCullagh to attorn tenant to the "said plaintiff under the said lease, and let said defendant "be restrained in mean time from committing any manner ❝of waste on said premises."

No costs on either side.

1804.

MOLLOY

v.

IRWIN.

O'DEA v. O'DEA.

Feb. 24.

THE plaintiff having changed his solicitor, an order Where plainhad been obtained that the plaintiff should stop proceeding solicitor, the tiff changes his till the former solicitor was paid his costs; the plaintiff former solicitor has no right notwithstanding, set down his cause for hearing, and it be- to stop him ing now called on,

Mr. McMahon, on the part of the defendant, moved to strike it out, upon the former order; stating this to be the constant practice, in which he was supported by the six clerks and by several practitioners.

from proceeding till his costs are paid.

1804.

O'DEA

V.

O'DEA.

Lord CHANCELLOR.

I cannot do this; it is not in my power: I never heard of such a practice before. A solicitor has advantages for the recovery of what is due to him for costs, which men in other situations have not, by keeping his client's papers; but he has no right to stop the cause from ceeding.

pro

The cause proceeded.

Feb. 24.

VAUGHAN v. FITZGERALD.

Bill to perpetu- IN this case the bill prayed to perpetuate the testimony of

ate testimony

not to be

merely, ought the witnesses to a will, and to prove its destruction and the contents thereof, and also that the copy of the will set brought to an hearing; but if out therein might be decreed to be a true copy. The plainit prays relief, the defendant tiff examined his witnesses, and one of the defendants (the may set it down heir at law) also examined witnesses on his part, No furfor a dismiss. Heir at law ther proceeding having been taken by the plaintiff, the dehas a right to fendant obtained the usual order to set down the cause for a his costs, tho' he cross-exa- dismiss. Upon its coming on this day, the practice was mine plainstated by all the six clerks to be, not to bring the cause to tiff's witnesses but if a hearing in the common case of a bill to perpetuate testihe examines witnesses on mony to a will, as the bill prayed nothing more than to his own part, perpetuate the testimony, which was done by the examinahe shall not tion: But here the plaintiff having prayed a special decree,

have costs as to that.

and not having brought his cause to a hearing, it was insisted that the defendant had a right to have it set down for a dismiss.

On the part of the plaintiff it was pressed to have such a decree as was prayed by the bill.

Lord CHANCELLOR.

I cannot establish the copy of a will as a copy; you have got all you can; your evidence will be preserved by the examination; but as you have prayed relief, to which you are not entitled, and so have given the other party a` right to set down your cause for a dismiss, you must pay the costs as to that. But the heir having taken the benefit of your suit by examining witnesses as to the execution of the will, has used the bill as a bill to perpetuate testimony on his part, and is not entitled to his costs. (a) He had a right to cross-examine your witnesses, and if he had only done so, he would have been entitled to his costs.

1804.

VAUGHAN

บ.

FITZGERALD

It appeared afterwards that counsel had been wrongly instructed in stating that the heir had examined witnesses.

Reg. Lib. xlix. 399. "It appearing that the object of plaintiff's bill was to perpetuate the testimony of wit"nesses, and that the same ought not to have contained any prayer for relief, and ought not to have been set