ing been incurred in prosecuting the cause: and although Thomas had signed a receipt for the 8987. yet in fact he did not receive any part of it, but it was applied by Daly in discharge of the judgments obtained by Farrell and the costs thereon, though such judgments were not included in the decree. There was also introduced into the conveyance a covenant on the part of Thomas and Walter Kennedy that they and their respective wives should levy a fine sur cognisance de droit come ceo of the said lands which was to enure to the use of Daly his heirs and assigns, and which was accordingly levied in Trinity Term 1790.

Walter Kennedy died in 1790, and Thomas Kennedy died on the 9th of April, 1791, intestate, without having executed any settlement pursuant to the articles of Aug. 1764, leaving Frances his widow, James Marinus his eldest son and heir at law, and Macarius John his only other surviving issue, who were then within the age of twenty-one years, but had since attained their full age, and had taken the oaths and performed the requisites to entitle themselves to the benefit of the laws made for the relief of his majesty's subjects professing the Roman Catholic religion. As soon as they became apprized of the circumstances of the case they ap plied to Daly to re-convey to the trustee in the articles of 1764, offering to pay a moiety of E. Clarke's judgment and the costs of obtaining the decree, or proposing an arbitration, which being refused, a bill was filed on the 26th of Oct. 1799, by Frances, James Marinus and Macarius John against Daly and others stating the several transactions, and insist ing on the benefit of the statute 17 and 18 Geo, 3,(a) and

(a) c. 49, 8,8, whereby it is enacted, "that all persons deriving "under settlements made upon marriages or other valuable con"sideration by papists in possession, shall have, take, hold or enjoy "the same, as if the acts of the 2d and 8th of Q. Anne or any thing "therein contained had not been made;" See stat, 2 Ann. c. 6, & 8 Ann. c. 3.

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charging that the decree of the 19th June, 1784, had been obtained by fraud; and praying that the defendant should be precluded from setting up the same in bar of the relief sought by the plaintiffs; that the conveyance executed to Daly in July 1786 might be declared fraudulent and void; that the plaintiffs should be decreed entitled to the full benefit of the articles of 3d Aug. 1764, and that the fine should be deemed to have been levied in trust for plaintiffs: And that an account should be taken of what was due by plaintiffs to Daly on the foot of E. Clarke's judgment, and of the rents and profits which he had or without wilful default might have received out of said lands, the same to be applied to pay off the interest and principal of said judgment debt, and the surplus to be paid to plaintiffs or to the trustee in the articles of 1764; and that the plaintiffs or such of them as should be entitled should be decreed to the possession of said lands, they offering to pay any balance that should appear due to Daly with reasonable costs of obtaining said decree.

Daly insisted by his answer that in the management of the suit instituted by Farrell he had acted merely as his solicitor and not collusively with Thomas and Walter, who were directed by their own counsel and solicitor. That, with respect to the charge of serving orders, &c. on Blakeley after he had ceased to be solicitor for Thomas and Walter, he was under the necessity of doing so, it not being in his power to have another solicitor appointed for the defendants; but that, knowing that Blakeley and his clients had disagreed, he always took care to serve such orders, &c. upon Thomas and Walter also, until they appointed another solicitor. He denied having with a fraudulent intent, or at all, made up the decrce of 19th June, 1784, as charged, the same having been perused and approved by counsel and he

insisted that he had given a fair price for the lands. He stated that he had made leases of the premises for lives renewable for ever (and as to the lessees they were not made parties, nor was it pretended that they were privy to any fraud): And he relied upon the fine and his seisin under it, and the non-claim from the time of the death of Thomas Kennedy (the plaintiffs being under no incapacity): and prayed the benefit thereof in as ample manner as if the same had been pleaded.

For the plaintiffs, the Attorney General, Mr. Burston, Mr. Fitzgerald, Mr. Mahon and Mr. Locke, contended, that the articles of 1764 were a specific lien upon the land, and that every person thereby covenanting to make a settlement became in the contemplation of a court of equity, a trustee in the strictest sense of the word; Le Gard v. Hodges, 1 Ves. jun. 477. Nor is this construction inconsistent with the popery laws; for this being only a covenant to execute a future settlement, in case the party should have a right, it would not create a discoverable interest. If then these articles were a lien upon the land, they bind it in equity against subsequent judgment creditors. Finch v. Lord Winchelsea, 1 P. Wms. 277. A judgment creditor is not considered to contract specifically for the security of the land, Brace v. D. of Marlborough, 2 P. Wms. 499: besides, these articles having been registered, acquire thereby a precedence against subsequent judgment creditors, though obtaining a lien upon the legal estate. D. of Chandois v. Brownlow, 2 Ridgw. P. C. 345. But at all events, from the time of passing the act of 1778, these articles must be held to have bound the lands; the words of that act are, "that all persons deriving under settlement made upon marriage or "other valuable consideration by papists in possession, shail 66 enjoy under the same as if the acts 2d & 8th of Anne had not been made." Then if the articles either originally or by

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force of this statute bound the land so as to make the original contracting parties, having the legal estate, trustees for the benefit of those claiming under the contract, Mr. Daly, being a purchaser with full notice of these articles, must be also a trustee. It is the settled doctrine of the court that a conveyance, in whatever form, whether by lease and release or by fine, taken by a purchaser with notice, from a trustee, does not bar the cestui que trust; Willoughby v. Willoughby, 1 T. R. 770. The person taking with notice of the trust becomes himself a trustee; the legal estate passes by the fine, but the trust still attaches to it. There is no difference in this respect between a fine and any other species of assurance. It is equally within the controul of a court of equity; not by setting aside the fine, but by decreeing the purchaser to be a trustee for those to whom in conscience the estate belongs. This was the doctrine as to uses at common law, whoever took from the feoffee to uses, with notice, became seized to the same uses, Plowd. 351; 1 Co. 122. The non-claim cannot operate here, as the estate was not displaced. The parties to the fine being looked upon as trustees, their title was not adverse to the title of their cestui que trusts, and of course the non-claim does not operate: Bovey v. Smith, 2 Ch. Cas. 124, S. C. 1 Vern. 60; Story v. Lord Windsor, 2 Atk. 631; Shields v. Atkins, 3 Atk. 562; 2 Cruise's Dig. 403, 460; Lord Pomfret v. Lord Windsor, 2 Ves. 482; Baker v. Pritchard, 3 Atk. 387; Gilb. For. Rom. 61, 62,

As to the proceedings in the court of Exchequer, it was contended that the court meant only to decree a sale for the debt of the ancestor, but that the decree for that purpose was fraudulently carried into execution, in pursuance of the original contrivance to defeat the articles: that there was a clear misapplication of the surplus after payment of the debt; and that the decree was made use of as a cover to defeat the

rights of the plaintiffs, and put into the pockets of Walter and Thomas Kennedy and their personal creditors, the value of the surplus of this estate: that Mr. Daly was conusant of and a party to all these frauds from their commencement, and had availed himself of his situation to get a bargain of the lands, and that upon the whole he could not therefore avail himself of that decree in the way in which an ordinary purchaser, coming in fairly, might perhaps have done. (The facts upon which this part of the argument was founded are fully stated and observed upon in the judgment.)

For the defendant, the Solicitor General, Mr. Saurin, Mr. Ponsonby, Mr. Macartney, Mr. Ball and Mr. C. Ball, insisted that the articles of 1764 were designed as an evasion of the then existing laws, and made in contravention of the spirit and policy of those laws, and were therefore entitled to no favour; that at most they could only operate as a personal covenant, and could not affect the lands to the prejudice of fair creditors who obtained a legal lien. At all events, the judgment creditors, prior to 1778, had a clear right to have their lands sold for their benefit discharged of these articles; and this was the object of the bill in the Exchequer; and although the decree obtained thereupon might not have been as formal and correct as it should have been, it would be too much at this distance of time to treat all these proceedings as a nullity, to the prejudice of this defendant who was a purchaser under the decree. Richmond v Taylor, 1. P. Wms. 736. It has been always conceived in this country that a decree for a sale bound all equitable rights of the parties to the decree: and the circumstances in the case shew that no fraud was designed to be practised by that suit.

Upon the operation of the fine and non-claim they contended, that it had never been decided that the rule which

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