Page:The English Reports v1 1900.pdf/347

bagg, Carokeele, and Derrinegonne, long before and after the 23d day of October, 1641; and in consideration of a marriage to be had between him and Martha Boyle, daughter to the then archbishop of Tuam, and of a considerable portion, settled those lands, among others, to the use of himself for life, remainder to Martha for life for her jointure, remainder to the heirs of their two bodies; remainder to his own right heirs, and died in England, in 1644, without issue; and the lands remained to Martha for life, and the reversion in fee descended to John Osbaldeston, brother and heir of Jeoffry; and Martha some time after married Colonel Nelson, of the usurper's army, who in her right enjoyed the said lands till his death; after which Martha married Sir Matthew Deane, who also in her right enjoyed the said lands until she died, in November, 1702, and that Jeoffry Osbaldeston, Colonel Nelson, and Martha, having been protestants, and not concerned in the rebellion of 1641, these lands were never seized or sequestred by the usurped powers; and that after the restoration, in 1663, com-[371]-missioners being appointed, pursuant to the Irish act of settlement, to hear the claims of innocents, said John Osbaldeston claimed, as an innocent, several lands he was intitled to, which had been seised and sequestered, and was decreed innocent; but did not claim this remainder, the same not having been seized or sequestered; because if he should, it would make them liable to quit-rent; and that upon hearing the claim before the commissioners, the marriage-settlement of Jeoffry was proved, and Jeoffry decreed an innocent protestant, and John an innocent papist; and that John had an only daughter, Mary, and entered into the articles of 1673, for her marriage with Peter Pilley, and covenanted to settle the said remainder on Peter and Mary, and the heirs-male of their bodies, remainder to the heirs female, until such heirs female should be paid 800l. and after such payment, to the right heirs of John; and that the said Peter perfected a bond of 1000l. to John for performing the articles: And that Peter also, together with two other responsible persons, did before the marriage perfect a penal bond of 400l. conditioned to lay out 200l. in a purchase or mortgage to the use of the issue of the marriage, and that soon after the marriage John died without any other issue, whereby the remainder came to Mary as his sole daughter and heir; and that Peter, in her right, possessed himself of John's personal property, to a considerable value; and that Mary soon after died, leaving issue by Peter two daughters, respondent Katherine and Mary, who died young, so that the remainder of said lands came entirely to respondent Katherine, as grand-daughter and right heir of John and that in 1676, whilst Katherine and Mary were minors, and under the sole care of Peter Pilley, their father, commissioners were appointed pursuant to the said act of settlement, for hearing and determining the claims of persons transplanted into Connaught and Clare; and that Peter Pilley being desirous to strengthen the title to said lands by the sanction of certificates and letters-patents under said act, and having some deficiencies of transplanted interests, did, the better to secure the said title, desire liberty from commissioners to place the same on the said lands, as upon lands by himself brought into the stock; which was readily granted to him, and many others who desired the like, because such proceedings eased the stock of reprisals, which was so short, that such deficiencies were of little value: But Martha, then widow of Colonel Nelson, being in actual posses-[372]-sion of the lands as her jointure, threatened to oppose Peter Pilley's so passing the lands; and Peter thereupon assured her, that what he did was only intended to strengthen his daughter's title, and that he would give Martha a saving in the patent for her jointure: Upon which she gave him no opposition, but lent him several deeds and writings relating to the title of the lands; and the said Peter ordered Hugh Kelly, his attorney, to proceed in passing the certificate and patent; which Kelly refused, and declared he would oppose him, unless Peter should give him a declaration under hand and seal, that the patent should be in trust for his daughters Katherine and Mary, who, by their mother, were Kelly's near relations; and accordingly the said Peter Pilley, gave Kelly a declaration of trust in writing to that effect, as appeared by proof in the cause; but Kelly being killed in the late rebellion in Ireland, the writing was lost; and Peter Pilley several times, before and after passing the patent, declared it to be in trust for his said daughters, in the presence of several persons examined in the cause; and that in some short time after passing the patent, the farmers of quit-rent in Ireland, distrained the lands