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set forth his title as above, and denied any trust for respondent Katherine; and shewed that John Osbaldeston had deluded Peter Pilley into the said articles to marry his daughter, and insisted that by the said act of parliament the lands were given to Peter Pilley and his heirs, to the use of him and his heirs; and that all estates not saved by the said certificate and patent were barred; and that the said lands having been adjudged, seized and sequestered by the commissioners, no evidence could now be taken contrary to the said acts: and that the cause was heard 15th July, 1704, and the Court directed an issue, to try whether Peter Pilley did at any time, and when, declare that the patent should be in trust for his daughter, by Osbaldeston, or to strengthen her title; but that respondent not prevailing to obtain a verdict on that issue, petitioned for a re-hearing, and the cause was accordingly re-heard, and mentioned to be before the [369] Chancellor of the Exchequer, Lord Chief Baron, Mr. Baron Ecchlin, and Mr. Baron Johnson, (though the Chancellor was not present, but in England all that term) and after the cause was re-heard and the proofs read, the Court adjourned the consideration to the following term, and then upon debating the matter the Court was divided, the Lord Chief Baron, and Mr. Baron Johnson, were of opinion for the appellant, that there was no trust; but the Chancellor of the Exchequer, who was not present at the re-hearing, and Mr. Baron Ecchlin, were of opinion, that there was an implied trust; and the Court being thus divided, the Lord Chief Baron died, and respondents thereupon moved for the judgment of the Court; and though Mr. Baron Johnson (taking notice that the Court upon the re-bearing were divided in opinion) desired no decree might be pronounced till the Court were full; yet the Chancellor, and Baron Ecchlin, proceeded to make a decree, that appellant should convey to respondent Katherine and her heirs, and appellant to be allowed for the deficiencies placed by his father on the said lands, and the charge of passing certificate and patent, over and above the 200l. he was to lay out by his bond, and to account for the profits since the death of Lady Deane; which decree appellant insisted ought to be reversed, because John Osbaldeston, at the time of entring into the articles, had not any estate or possession in the premises, and had no portion to give his daughter, but deluded appellant's father with a pretended title, which was a fraud in him; and that the articles founded in fraud, could not be obligatory on Peter Pilley, either to purchase the real title, or compel him to pay the 200l. for the benefit of the issue of that marriage, for that it was only a covenant for a covenant not performed, and no trust by implication of law can arise upon fraud: And further, because the said acts of parliament had made the judgment of the commissioners final, and that their judgment being grounded on records to reprize appellant's father for lands to which he was intitled in his own right, there was no colour why the letters patents granted to him on just causes, and on good and valuable considerations, arising only on his part, should be construed in trust for those who had no title at all, and who could never have had a pretence to have any assurance made pursuant to the articles: And further, because it was agreed on all hands that Peter Pilley never had [370] any possession of the lands in question under the title of the articles, nor were these articles any motive to bis obtaining the letters patents: And though some witnesses of doubtful reputation, had deposed something relating to a declaration, that the letters patents were obtained in trust, and upon account of the marriage articles, which occasioned the sending that point to a trial at law, yet respondents were not able to make out any such trust, and that it must be taken that they waved the pretence of an express trust; yet the Court had thought fit to give judgment upon a supposed trust arising by implication of law: And further, because Peter Pilley parted with his own deficiencies and transplantable right, and if he had not so done, would have been intitled to other satisfaction for them, the benefit whereof would have come to appellant by descent, which was irrecoverably lost to appellant; yet the decree, as given, had no regard to those, nor gave appellant any consideration with respect thereto: And finally, because in the said decree no consideration was had of the sum of 100l. paid to respondent Katherine by appellant's mother for her portion. (J. Jekyll. St. John Brodrick.)

The respondent on the other hand shewed, that Jeoffry Osbaldeston was seized and possessed of the lands of Tully Carroward, Lissenerin, Coggallmore, Coggall-