Page:The English Reports v1 1900.pdf/272

then a formal assignment of Lord Bargeny's interest, made to themselves, the agreement previously made with him, was for all the five; and on their return, told the three, that they had purchased Henry Moore and Lord Bargeny's interest for their own use, and that the title under the will was worth nothing; and that the three should have no part, unless they would be contented with their shares of Countess Ann's jointure lands, and old freeholds; and that Archibald and Patrick were not able to contest; and after some years consented, being chiefly induced by one Bayly, who told Patrick, out of affected kindness, that he had a deed would destroy their pretensions under the will; and that he had got 500l. and lands of 60l. value, from Sir Hans and appellant James; and that Archibald and Patrick accordingly sealed articles with them; but fames, of Neilsbrook, refused and insisted on his right to a fifth of the whole, and was willing to pay his proportion of the purchase money: And in May, 1680, appellant James told him, he should have right done him by a reference; and that they two thereupon entered into bonds, to refer to Creighton and Hamill, who awarded, that James, of Neilsbrook, should do to Sir Hans and appellant James as Archibald bad done; and they should [216] do to him, as they were bound to do to Archibald: And that James, of Neilsbrook, finding himself imposed upon, and greatly injured by the award, never pressed the performance of it, but soon after became very sickly; neither did Sir Hans or appellant James ever desire it to be performed, but declined it; for Sir Hans refused, unless he got the Castle and gardens of Killeleagh, and 500l. per annum more than the award gave him; and that after Sir Hans's death, appellant James confessed, that Sir Hans or he had no right when they made the agreement, and that Chancery might relieve them, but was confident of James, of Neisbrook, Archibald and Patrick's inability to force them; and declared often, that the three had neither friends nor money, and he would make them do what he pleased: And that Sir Hans died, 26th February, 1681, and left appellant Hans, his grandson and heir, and his estate to the guardianship of appellant James; but that Sir Robert Hamilton (the infant's father) soon after prevailed on appellant James, to let him have the possession and management of the estate; and assured him he had a great design, which he could not otherwise accomplish: And that Sir Robert and appellant James afterwards purchased the Countess of Dalhousy's interest for 100l. And that respondent Ann, the daughter, and heir of James, of Neilsbrook, 30th December, 1683, preferred a bill in Chancery against appellants and Sir Robert Hamilton, to recover a fifth part of the whole estate; and that they in their answers, insisted on the purchases being for themselves, and not in trust; and that Earl James was non compos mentis when he made his will; and that they paid for their purchases above 4400l. And prayed, that if respondents would not take his offer, they might be barred of all advantage by the award, and left to their remedy under the will, &c. And that on the hearing, the Court decreed respondents a full fifth part of the whole estate, and an account to be taken of the mesne profite, subject to a fifth part of Earl James, Earl Henry, and Countess Alice's debts, and of the purchase money: And inasmuch as the award was never executed, nor sought to be performed by either party, the Court left that matter open to each party, to take his legal remedy; and that appellants so far submitted to the decree, as to proceed in the accounts before the Master, and to demand, and get allowances for Sir Hans's expences in making the purchases with interest, and other debts and [217] demands; and that the Master made his report, and appellant had taken exceptions; and in order to keep respondents out of possession, and a fifth part of the money reported, had appealed from the decree, which respondents insisted was not erroneous as alleged; and that it ought to be affirmed, because, Sir Hans and appellant dames, had by writing, owned that James, of Neilsbrook, was to have a fifth part of the estate, and moved his friends to persuade him to join in a suit for the same, and promised in writing to make no separate agreement for themselves; and that they had accepted the trust, and received money to take advice on the title of the five; and that they prosecuted the suit during Countess Alice's life, and after her death joined with the three in taking possession of the two mansion houses, and in receiving attornments; and had sworn in their answers, that the title of the five by will was good, and that possession had run many years under it; and after the decree made, charged respondents with a proportion of all purchase money, and expences in making