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pretending that he had mortgaged these lands, (among many others) to the other respondent, appellants filed their bill in Chancery of Ireland against respondents, for an account of the profits, and to be restored to, and quieted in the possession of the lands pretended to have been retrenched: And respondent Reiley, by his answer, insisted that he had no notice of appellant's title to the retrenched lands before his mortgage; and respondent Mervin insisted, that his father had placed deficiencies of his own on them, and had passed them in distinct letters patent; and the cause coming to be heard in December, 1704, the Lord Chancellor decreed, that respondent Mervin should not pay, or account for the lands mentioned to be retrenched; and, 12th December, 1705, declared appellants ought not to have any relief against respondent Reiley as to them lands; and therefore decreed the bill to be dismissed without costs, as to the respondent Reiley, in relation to those lands: And from these orders or decrees, so far as the same relate to, or concern the lands supposed to be retrenched, this appeal was brought, and appellants insisted they ought to be reversed, because there was no proof in the cause that the lands were ever retrenched but the contrary; and that it was apparent by Sir Audley Mervin's claim, that no part thereof was to be retrenched, in regard the whole was short of the two thirds which were to be enjoyed without retrenchment; and no notice was taken in Mervin's decree or patent of any retrenchment: And further, because if the lands had been retrenchable, yet Sir Audley Mervin acting as Captain Perry's agent or attorney, ought to have placed Captain Perry's deficiencies thereon: And finally, because, though Sir Audley had had never so good a title, yet he, and all those deriving under him, were bound by the lease of 1000 years, and the confirmation in November, 1666, after the decree, which though made before Mervin had past patent or got the title in law, yet were made good and binding by an express clause in the act of settlement: And appellants having thus good title in both law and equity, respondent Reiley's pretence of being a purchaser without notice was insignificant. (Sam. Dodd.)

The respondent Mervin, on the other hand stated, that by the act of settlement made in 1663, the adven-[378]-turers and soldiers were obliged to claim the estates allotted to them in order to pass patents thereof; and that Captain Benjamin Perry, sen. being in possession of 839 acres, 1 rood, and 19 perches of land, in the County of Meath, in satisfaction of his pay, in April, 1665, contracted with Sir Audley to sell him those lands, or so much of them as he should pass letters patent of under Perry's title, for six years purchase, Sir Audley to pay moreover the year and a half's value to the forty-nine officers, and be at the charges of claiming and passing letters patent, &c. And that accordingly, by lease and release, dated the 20th and 25th April, 1665, Perry conveyed the lands to Sir Audley and his heirs, and Sir Audley demised all back again (except the demesne of Naule, which were considered as bought for the 200l. paid down) to Perry for 1000 years, at a pepper-corn rent, as his security for Sir Audley's paying the six years purchase, when the patent should be passed; and that Sir Audley soon after paid him 400l. more, and had thereupon more of the lands delivered to him, which, with the Naule, amounted to about 100l. a year: And that the act of explanation was made 20th October, 1665, whereby one third part of the soldiers lands was retrenched, and taken from him, in order to pay deficient soldiers and adventurers: And that, 23d February, 1665, Sir Audley Mervin (as assignee of Perry) claimed all the lands, but his claim was rejected as to one third part; and afterwards, in May, 1666, under Perry's title, he passed certificate of two parts only, and in March, 1668, passed patent thereof: And that Sir Audley Mervin, as any other might have done, a year after the retrenched part had been thrown out, placed deficiencies thereon, to the value according to the qualifications of the act, and had a certificate thereof, and letters patent passed to him, and possession accordingly; and at Perry's desire (to save the charges of a new patent) included in his patent a parcel of lands called Newtowne, which occasioned a deed to be made between them, dated 20th October, 1666, whereby Sir Audley declared his name as to Newtowne, to be in trust for Perry; and in that deed the terms of the sale of the estate, at six years purchase, were recited, and to defend the one thousand years lease against Sir Audley's lady's dower, and other incumbrances, was the sole end of that deed: And that Sir Audley finding that Perry had over-valued the lands, [379] delivered to him when he paid the 400l. by at least 5l. a year, and