1804.

GIFFARD

V.

HORT.

wise; because, as courts of equity have determined, on grounds of high expediency, that it is sufficient to bring before the court the first tenant in tail in being, and if there be no tenant in tail in being, the first person entitled to the inheritance, and if no such person, then the tenant for life, and as courts of equity constantly act on these parties being before the court, in any thing relating to the whole estate, I do conceive that the decree in the court of Exchequer decided against the rights of Sir Duke Giffard and his son Thomas, a minor, and that that is a decision binding the right. If it is not a decision binding the right, it must be on this ground, that the title in a court of equity to an equity of redemption is just as distinct a title, as a title in the court of law to a legal remainder in tail: now, I think, considering the manner in which courts of equity act on property, it is impossible to admit that doctrine; but that where all the parties are brought before the court that can be brought before it, and the court acts on the property according to the rights that appear, without fraud, its decision must of necessity be final and conclusive. It has been repeatedly determined that if there be tenant for life, remainder to his first son in tail, remainder over, and he is brought before the court before he has issue, the contingent remainder-men are barred; this is now considered the settled rule of courts of equity, and of necessity; and the danger of holding otherwise in the present case would induce me to hesitate very much, even if I thought that there was less of authority on the subject: but at the same time I do confess that I do not find the precise distinct authority that enables me to say that the point has come completely in discussion before a court of equity; indeed the argument shews that it is not completely so decided. Now, if I were on this ground to dismiss the plaintiff's bill, I should be doing him great injustice; and I think I ought to do the thing I originally thought of. If I had a doubt in point of law, I should put the question in a train of decision in a court of

law: so, if I have a doubt whether this decree be binding, I ought to put it in a course of decision that would enable me to act in case it be not binding. If it is binding, I take it Sir J. Giffard has clearly an appeal. Even in cases of creditors coming before the master, they have been held entitled to re-hear the cause though not parties, because the decree affected their interest. In Hungerford's case, the creditors complained that the property had not been applied as it ought; it was objected that they should not come in under the decree, and impeach the decree; it was answered that they might; for that if the decree contained in itself wrong disposition of the property, they, coming in as creditors, had a right to appeal, because the decree bound their

a

Even credi

tors, not parties to the suit, but who came

in under the

hear.

decree, may right. In Osborne v. Usher,(a) the same sort of principal appeal or rewas admitted; if the right of a remainder-man, or a person entitled to the estate in any way, is bound by the de- So a person en. cree, he must have a right to appeal from it, as well as the titled in any person against whom it was made.

2

Under this impression therefore I think I ought to let the cause stand over to enable Sir J. Giffard to apply to the House of Lords. If the lord shall think him not entitled to appeal from that decree, it must be because they think him not bound by it: and the result will be, that I shall not consider myself bound by that decree, but shall be at liberty to make the decree which I think the plaintiff is entitled to,

Very little difficulty on the ground of the lapse of time, would strike my mind in making this decree; and even if the difficulty were greater, it is an object of importance to make a decree to defeat such frauds. I cannot consider Jos. G. Hort. as innocent; he must have been conscious of these transactions.

way.

1804.

GIFFARD

V.

HORT.

However, I cannot make this decree in the face of the decision in the Exchequer. It may be said that new matter is brought forward, viz. the fact of the bill filed in Chancery by the archbishop for the purpose of raising the arrear of interest upon the two charges of 6001. each: but this new matter is of a very slender nature; for in the bill of 1799, filed by Sir Duke Giffard, he stated the circumstance of the pendency of that suit, and he was perfectly conusant of the circumstances; and if it was matter subsequently discovered, if the suit in Chancery had gone quite out of the minds of the Giffard family, then it might be said to be the subject of a bill of review as new matter; but that cannot be thought to be the fact.

I shall let this cause stand over to the last day of next term, to let Sir F. Giffard petition the House of Lords; his petition may be presented in the mean time, and I shall then see whether it be proper to let the cause stand over for a further time.

The cause was ordered to stand until the last hearing day of next term.

On the 25th of June, the cause was again mentioned by counsel for the plaintiff, who stated that application had been made to the House of Lords for liberty to present a petition of appeal, but that the state of the public business at that time had prevented the matter from being pursued with effect. His lordship was then pleased to order that the cause should stand over until one month after the commencement of the then next session of parliament, with liberty for

the plaintiff to apply in the mean time to re-instate the cause in the list if he should be so advised.

On the petition for liberty to appeal being preferred, the House of Lords referred it to a committee (of which the Lord CHANCELLOR of England was chairman, and the Lord CHANCELLOR of Ireland a member) which came to the following resolution: "Resolved that it is the opinion of "this committee that the petitioner claiming to be entitled as tenant in tail in remainder upon the death of his nephew Sir Thomas Richard Walter Giffard, may, if so "entitled, appeal from the decree of the court of Exchequer "in Ireland, making himself a party to the suit instituted in "said court, by filing a supplemental bill to have the benefit "of the proceedings therein, for the purpose of appealing "from said decree." And the house was pleased, on the 29th of April, 1805, to make an order pursuant to said report.

The plaintiff did accordingly file his supplemental bill in the court of Exchequer, and on the 3d day of December, 1805, moved that court to set aside or vacate the enrolment of the decree of dismissal of 20th March, 1802, on alleged irregularities in the enrolment; and that plaintiff might be at liberty to apply by petition to that court for a re-hearing; on which motion, the court was pleased to pronounce

No rule.

1804.

GIFFARD.

V.

HORT.

END OF THE SITTINGS AFTER EASTER TERM, 1804.