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custodiam, nor any injunction issued thereon: and it was also decreed, that the appellant should account with the respondents, for one sixth part of the rents and profits of the Wexford estate, from the time of the attornment of the tenants to the appellant; his Lordship declaring, that the purchase of the said sixth part was fraudulent, the respondent being then out of possession, and the appellant in possession, though concerned as counsel [174] for the respondents, to recover the possession for them. And it was further decreed, that so much of the respondents bill, as sought to set aside the articles wholly, should be dismissed; and that the appellant should be left to his action of covenant for the performance of the articles; and that the appellant's cross bill should be dismissed with costs, and an injunction awarded to put the respondent Francis into possession.

From this decree the plaintiff in the cross cause appealed; insisting (R. Raymond, C. Phipps), that the articles ought to have been established by the decree, in regard they had been in part executed, and would have been executed entirely, had not the respondent Francis, after many years acquiescence, refused to perform the same, although the appellant was always ready on his part. That the appellant's cross bill ought not to have been dismissed with costs, because the articles were in part established, even by the decree; and also because the respondents did not, by their bill, absolutely pray that the articles might be set aside, but prayed in the disjunctive only, that the appellant should either account for the profits of the said sixth part, or pay the purchase-money, with the interest thereof, according to the articles, and which he was ready to do. That the respondent Mary, in her answer to the cross bill, declared her readiness to comply with the respondent Francis her husband, in executing the articles; and he in his answer said, that until filing his original bill, he was always willing to perform the said articles; and therefore the decree ought to have confirmed and established them, and directed a specific execution, in regard there was no fraud, circumvention, or surprize in obtaining them; and that at the time of their being executed, the rate of lands in Ireland was generally at twelve or thirteen years purchase; so that the appellant was to pay a full consideration for the said sixth part. That the appellant was an entire stranger to the dealings between the respondent and Sir Richard Holford, and could not know what was due from the respondent to Sir Richard; and as Sir Richard had a custodiam of the estate, the decree ought to have allowed the appellant all be had paid to Sir Richard, on account of the respondent's debt, and have put the respondent, and not the appellant, upon recovering back such over-payment, if any, from Sir Richard Holford's executors; it being the respondent's fault, that he did not settle the account with Sir Richard, as by the articles he covenanted to do.

On the other side it was contended (T. Lutwyche, C. Talbot), that the appellant, by obtaining possession of the premises, and holding the same in his own right, whilst he was concerned as counsel for the respondent, in order to obtain the possession for him, was guilty of great injustice and breach of trust. That the respondent, from the difficulties he was under, by the appellant's keeping him out of possession, and refusing to come to an account, was forced to come into the agreement in question, without a sufficient knowledge of the value of the estate, or the amount of the arrears of rent; and the respondent was likewise imposed upon as to part of the consi-[175]-deration, for as to the £160 supposed to be paid to Holford, no more than £120 was paid; and no more than £20 was paid of the £30 supposed to be paid in London. That the appellant did not comply with the terms of the articles after they were executed; the £200 not being paid to Mr. Scroop till near a year after the time limited; and even then the appellant annexed a new condition to that payment, not warranted by the articles; and although he was to pay Sir Richard Holford the half-year's rent due at All Saints 1702, being £20, yet he never paid it. That the appellant by his proceedings, and an answer put in to a bill exhibited by the respondent, had waived the articles; for in that answer he had sworn, that he disregarded the articles, further than as to the arrears, and minded the same no more, and was resolved never to have any further dealings with the respondent thereon. That since pronouncing the decree, the respondent's wife Mary had died, and her right descending to her heir at law, it was not in the respondent's power to perform the articles; for no act had been done, either by him or his wife, to bar the right of such heir. That as to any payments made by the appellant to Sir Richard Holford, whose proceedings against the respondent