judice of the heir. But if it cannot be avoided upon principles applicable to all cases of the same description, or without breaking in upon the provisions of a statute; it is better to suffer this conspiracy to succeed, than to disturb the titles of others, by infringing settled principles or the provisions of an act of parliament. . Upon the death of Henry Bond, the persons engaged in this conspiracy, got possession of his house, his title deeds and personal: fortune, and of every thing which could be used to protect their possession against the heir. Possessing all these papers and documents, they had the completest means of investigating the heirship. Even the very evidence of the marriage (if the completest existed) fell into their hands. Under these circumstances Dr. John Bond came to Ireland and made his claim. He found means to get into possession of that part of the property which was in the occupation of tenants, by prevailing on them to attorn to him; and he and his creditors have been in posses-. sion ever since of these parts. It is admitted, if Dr. John Bond was not the heir at law of Henry Bond, that Elizabeth M Geough was. There is no question as to her title, except the legitimacy of Dr. John Bond, and the will of Henry set up by the defendants, supposing it an operative devise. Dr. John Bond filed his bill in Oct. 1755, to enable him to discuss the question as to this will. He charged another will devising the property to himself, which, if estab lished, would have put the question of his legitimacy out of the case; but the evidence in the cause is silent as to that will; therefore it is out of the question, and I must now take it that Henry Bond died intestate. The bill of 1755 required a production of all instruments in the hands of the defendants, and prayed an injunction as to the parts of the estate of which Dr. Bond was 1802. BOND V. HOPKINS. 1802. BOND υ. HOPKINS. in possession, and for which ejectments had been brought by the person claiming under the alleged will It also suggested the fraudulent proceedings which had been taken in collusion with Mr. and Mrs. M'Geough. This bill was brought therefore by Dr. Bond, on the supposition that he had a right to the assistance of this court to try his title at law to the lands now in question, and to retain possession of the others in the mean time. In 1756 this bill was amended by a new bill put on the file, distinctly praying that the real will of Henry Bond might be brought in and deposited in court. That was a clear equitable title in Dr. Bond. He might be mistaken in point of fact, but he was right in point of jurisdiction. The bill so amended prayed an injunction in the same way as the former bill did. On the 19th January, 1757, pending this suit, and whilst Dr. Bond was unable to bring an ejectment, for want of the necessary discoveries sought by this bill, Malone, and the other persons claiming under the will set up by them, filed their bill. It prayed that the will which they set up might be established; that they might be quieted in the pos session of such part of the estate as they were in possession of; and that the tenants of the other parts might be obliged to pay their rents to them; or that a receiver might be appointed. In this way both parties put themselves into a court of equity-Dr. Bond necessarily. It was impossible he could proceed at law without discovering what were the instruments which had been procured from his father. He could not enjoy the benefit of the instrument devising to him, if any such there were, unless it was discovered and produced; and he had a right to seek the discovery against those persons who had possessed all the papers of the deceased. It is impossible, when persons thus possess themselves of all the papers of a dead man, and keep the party who may be entitled in the dark, that lapse of time should be allowed to prejudice the party so kept in the dark, whilst he is seeking in a court of equity the discovery to which he is entitled. Therefore I throw out of the case the lapse of time between the arrival of Dr. Bond, and January, 1757. The bill then filed by Malone and others proceeded but slowly; it brought before the court Dr. Bond, and by an amendment M'Geough and wife also; and it made all the tenants parties. As amended therefore, it put the title of the plaintiffs therein merely on the will set up by them, calling on Dr. Bond and Mrs. M'Geough to interplead as to the question of heirship, and praying to be quieted against both; putting the title merely on the issue of devisavit vel non. Unless it could be considered as amounting to an undertaking to put the title on this issue merely, it was an improper bill; but the court considered it as so doing, and as properly so doing; and accordingly, on the 10th May, 1767, directed an issue on the single fact, whether the alleged will and codicil were the real will and codicil of Henry Bond: That was the only question conceived to be in issue between the plaintiffs and defendants in that cause. Notwithstanding this suit, ejectments had been brought by Malone and the other persons claiming under the alleged will: an order to elect was obtained, and they elected to proceed in equity, and by that election they submitted to have the question discussed in equity. Dr. Bond had at that time his own bill pending (originally properly) on the file; but I take it his proceedings were suspended by the other bill bringing the same question, as to the will set up against him, before the court. Under these circumstances Malone's cause was brought to a hearing, and an issue was directed. The cause was re-heard, merely as to the venue for the trial of the issue, and the decree affirmed on the re-hearing. In consequence, (whatever I may think of the proceed 1802. BOND ' . HOPKINS 1802. BOND V. HOPKINS. ing) I cannot take the decree of the 10th May, 1767, to have been a slip of the court; but that the court on deliberation conceived it proper to direct that issue. If it had been found in favour of the plaintiffs, the court would have directed Dr. Bond to give up the estates, of which he was in possession. He had put himself on the question of will or no will, admitting that to be the question on which the title stood as between him and the plaintiffs in that cause. An order was made between the hearing and the rehearing, that the plaintiffs should give security for the rents of those parts of the estates of which they were in possession. It is evident that was done under the impression that otherwise an injury might arise to Dr. Bond from the delay It is not important, with respect to the title to these rents in equity, whether security was in fact given or not; but if a recognizance had been entered into, the court was bound to give Dr. Bond the benefit of that recognizance. The issue was tried in 1769, and there was a finding against the will. An application was made for a new trial, which was refused with costs. The final decree was pronounced on 25th July, 1770: The certificate of the verdict being confirmed, the bill was dismissed with costs. I do not con'ceive that nothing is pronounced by this decree respecting the pretended will and codicil. Dr. Bond gained at least this right under the decree, that the will and codicil so condemned, should form no obstacle in future to his title. In that respect therefore, I think, the master of the rolls. has not gone far enough in the relief which he has given under the present bill: I think he should have prevented the setting up of these instruments to defeat the title of Dr. Bond. Some time after the dismissal of Malone's bill, a very disgraceful transaction took place. An attempt was made by Dr. Bond, under pretence of an injunction, to get into pos session of Bondville. 1802, BONDI V2 HOPKINS. It is not wonderful that he should be mad with disappointment at finding, after such a scene of litigation, terminated so successfully for him on the trial of the issue, that he was not in possession. If the decree of 1770 was not to be followed up by any benefit to him, the whole proceeding was a mockery, and ought not to have been suffered : But I cannot conceive the court so intended; for though he was not authorized by it to put himself in possession by force, yet the court must have intended that the question of will or no will should be for ever closed between the parties; and that the plaintiff in the bill of 1757, should be precluded from setting up a title under that will, or under the mere possession which they held under pretence of that will. The litigation had involved Dr. Bond in the utmost difficulties: He died in prison, in the greatest disqe tress, in 1774. The costs ordered to him were not paid; It is said other costs due on his part were not paid by him; but the balance must have been in his favour. I take it, his situation was that of extreme misery, produced by the fraud of these persons. If they had not fabricated this will, but had said on his arrival, "we do not know who is "heir; we will deliver up possession to the heir, whoever he "is;" that would have been quickly decided: But they set up this will, and thus by the semblance of right prevailed on a court of equity to direct an issue, and protect them in the mean time in the possession. If they had not set up this title, the court would not have protected them in the possession. To a certain extent the rule that a party shall not be allowed to change the ground of his possession, is just. In this cause it is particularly so. The question here is, whether a court of equity should suffer length of time to prejudice the title, where the possession was protected by the court as a lawful possession, by force of instruments, afterwards condemned by the court as fraudulent; and the court therefore cannot suffer these parties now to use their |