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1804,

KENNEDY

Daly.

to set up any claim; for with respect to the costs of the suit in the Exchequer, as against these parties it appears to nie that the proceedings must be taken as fraudulent, and no charge can be made of the costs of that suit. The rents of the estates belonged to Thomas Kennedy during his life, subject to the incumbrances; but then these rents were assets for the discharge of incumbrances which he had made on the estate contrary to his covenant, and therefore properly applicable to the principal debt due to Farrell: they would be in like manner applicable, if they could be so applied, to discharge the other incumbrances affecting the estate ; for after 1778 it does not seem to me that Walter Kennedy, notwithstanding the decree of partition, could have resisted a claim to compel him to convey his moiety to the uses of the articles. I have not the parties before the court which would enable me to say any thing on that subject, but I think it perfectly clear the equity of the case is this : that after 1778 all these estates ought to have been conveyed to the uses of the articles, and being so conveyed, that the incumbrances brought on them by Walter Kennedy ought to have been a personal charge agasnst him; if he had had effects for the purpose he ought to have been compelled to discharge them: and so of the incumbrances of Thomas,

With respect to the leases executed by Mr. Daly: the lessees are not brought before the court; I therefore cannot avoid these leases: and I cannot decree Daly to convey the estate clear of incumbrances, because the plaintiffs have neglected to claim the estate till after he had made that incumbrance. I do not find that they had taken any step to dispute his right to dispose of the estate, until they filed their bill, and in the mean time he makes a disposition which at the time was a conscientious use of the estate as owner of it; and though let at what is now a small rent, yet it would be going too far to decree Mr. Daly to convey the estate clear of these leases.

1804.

KENNEDY

V. DALY.

Reg. Lib. xlix. 507. “ Declare that the proceedings in “ the court of Exchequer, in the cause in which James Farrell, Esq. was plaintiff and the said Thomas Kennedy, Walter Kennedy and others were defendants, appear to “ have been carried on in pursuance of a fraudulent agree“ ment between the said Thomas Kennedy and Walter Ken

nedy, and their creditors, for the benefit of the said Tho" mas and Walter Kennedy, and to the prejudice of the

rights of the plaintiffs claiming under the articles of the “ 3d day of August, 1764, in the pleadings mentioned ; " and that such suit appears to have been fraudulently con“ ducted, so that the same ought not to bind the rights of " the plaintiffs claiming under such articles; and that the “ defendant Owen Daly appears to have peen privy to, and " acting in all such fraudulent transactions; and that the "purchase set up by the defendant Owen Daly of the “ lands of Rowlagh and Raheen, having been made with “full knowledge of the said articles and of such fraudulent “transactions, the same cannot be insisted upon in equity

to bar the rights of the plaintiffs to have a specific execu“tion of the said articles, by a conveyance of the estates “ comprised therein ; and therefore, that said defendant

cannot protect himself against the claims of the plain“tiffs claiming such specific execution under said articles : s but declare that the said Owen Daly is entitled against " the plaintiffs, to the benefit of the judgment obtained by “ Elizabeth Clarke against Marinus fames Kennedy, father “ of the said Thamas and Walter Kennedy, the same affect“ing said estates prior to said articles; and that according

to the true construction of the said articles, the said, “ Owen Daly is also entitled to the benefit of the judgment “ obtained by the said James Farrell against the said Thor mas. Kennedy, the same having been obtained before the " said Thomas Kennedy was by law entitled to convey to

" 'the uses of the articles, and refer it to the master to take 1804. " an account of what said defendant Owen Daly received, KENNEDY. " or without wilful default might have received out of said

DAL. “ premises from the time he entered into possession thereof, " to the time of the appointment of the receiver in this

Cause ; and also an account of what was due on foot of the “ said judgment for 700l. principal obtained by Elizabeth Clarke deceased, in the pleadings mentioned, for prin

cipal and interest at the time the said defendant entered, " into possession; and also an account of the sum due at the

same time on foot of the judgment for 400l. principal, “ obtained by James Farrell, in the pleadings named i and “ let the sums so received by said Owen Daly, be ser of « first against the interest, and next to sink the prineipal “ due on said judgments respectively; and declare that be

yond the said two debts, the said defendant is not enti“tled to set up any claim against the rights of the plain“ tiffs claiming under the said articles ; and particularly that the proceedings in the said suit in the court of Exche“quer, having been as against the plaintiffs in this cause “ wholly fraudulent, no part of such costs ought to be $* charged against the plaintiffs : but inasmuch as the plain4 tiffs neglected to institute their suit immediately on the " death of the said Thomas Kennedy, and the said defen“dant Owen Daly, before the commencement of their suit, \ executed leases of said premises to persons not parties to " this suit, declare that the interests of the said lessee's

ought not to be impeached on the ground of this dea

cree, and that the conveyance herein after directed "ought to be made subject to such leases, so far as the "same are binding on the said defendant Owen Daly. " And let the said defendant Owen Daly and all proper "parties join in a conveyance of the said estates to the uses “in the said articles ; and let what (if any thing) shall apVOL. I.

3 D

1804.

KENNEDY

DALY.

pear to be due to the said defendant Owen Daly on the

accounts aforesaid, be paid to him by the plaintiffs, and “ if the balance shall appear to be due from him, let him

pay the same to the plaintiff James Marinus Kennedy, and “ decree defendants Thomas Daly and the Attorney General their costs against plaintiffs. Plaintiffs to have same

over against defendant Owen Daly,&c.

1803.

GIFFARD ». HORT. Dec. 5, 6, 7, 10.

1804. SIR Thomas Giffard, the grand-father of the plaintiff, April 27, 30. being seized in fee of the lands of Hardwood, in the county May 15. June, 25.

of Meath, and of Killinagh and Ballycowan, in the county of A decree, ob- Kildare; and being also seized of the lands of Castle Jordan, tained without for his life, under a settlement made by his father in 1696 ; making parties of those whose on the 25th Aug. 1730, mortgaged the lands of Hardwood, fected thereby, Killinagh and Ballycowan to E. Dillon to secure the sum of is fraudulent 2,2701. Sir Thomas Giffard and his eldest son, Duke Gifand void as to those parties. fard, (who was entitled to a remainder in tail, in the Castle chaser under it, with notice of the defect, is not protected by it.

Where there is a suit pending for forty years, and not abated, but remaining in such situation that the defendant might at any time have applied to dismiss the bill if he had thought fit; he shall not avail himself of laches in the plaintiff in not proceeding, in bar of the relief sought. Secus Semble. If the suit had abated in the mean time.

An appeal lies at the suit of tenant in tail in remainder against a decree affecting his rights, had against a prior tenant in tail. And such remainder-man may file a supplemental bill to make himself party to the former suit, for the purpose of appealing.

And a pur:

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1804.

GIFFARD

HORT.

Jordan estate) having each contracted debts, in order to discharge them, the lands of Castle Jordan, Hardwood, Killinagh and Ballycowan were by deeds of lease and release dated 1st and 2d June 1739, conveyed to trustees in trust, as to Killinagh and Ballycowan, to sell so much as should be sufficient to discharge said debts; and such part thereof as should remain unsold, together with the other lands therein mentioned, were settled (charged with annuities for Duke Giffard and the lady of Sir Thomas Giffard) on Sir Thomas Giffard for life, remainder to Duke for lite, remainder to his first and other sons in tail. These deeds were registered on the 4th day of July, 1739, but by accident, the denominations of Killinagh and Ballycowan were not men. tioned by name in the memorial. Fines and recoveries to the uses of this settlement were levied and suffered by Sir Thomas and Duke Giffard.

In June 1740, the executors of Dillon filed their bill of foreclosure in the Exchequer against Sir Thomas Giffard and Elinor his wife, (but neither Duke Giffard nor the trustees of the settlement of 1739 were made parties) and obtained a decree to an account; and on the 4th Dec. 1744, the sum of 2,939). was reported due to the plaintiffs. In Feb. 1745, a final decree for a foreclosure and sale was pronounced, which was affirmed on a rehearing in January 1746 : by this decree the surplus arising after payment of the sum reported due was directed to be paid to Sir Tho. mas Giffard. Pursuant to the decree, the mortgaged premises were set up to sale in 1747, and the lands of killinagh and Ballycowan were purchased by Thomas Loftus for 3,050). and Hardwood by Anthony Dopping for 1,690). : but the purchasers having laid the settlement of 1739 before, counsel, and having been advised that it was not safe to proceed further in the purchase, they were discharged therefrom by order of the court. The lands were again set up by the

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