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and said, he was willing to perform the same; and as to his title, he insisted, that he was seised in fee of the premises; for that his grandfather, Arthur Earl of Anglesey being seised in fee thereof, did, on the marriage of his son James Earl of Anglesey, settle the same on his said son for his life, with remainders to the [219] sons of that marriage successively in tail male; and that the said James his father had three sons, James, afterwards Earl of Anglesey, his first son; John, late Earl of Anglesey, his second son; and the respondent Arthur, now Earl of Anglesey, his third son: that the said James, the first son, died without issue male, whereby the lands descended to John, the second son; who being so seised, suffered a common recovery, and being by virtue thereof seised in fee, devised the lands to the respondent Arthur Earl of Anglesey, his brother; and therefore insisted that the appellant should perform the agreement.

The respondent Lord Altham by his answer alledged, that the said James Earl of Anglesey, the respondent Earl Arthur's elder brother, did, by his will, devise the said lands to Earl Arthur for life, with contingent remainders in tail to all his sons, with a remainder in tail to the respondent Lord Altham; and he insisted, that the appellant had no better title to the lands, than Earl Arthur had, who was but tenant for life, subject to impeachment of waste.

The respondent Richard Bayley by his answer insisted, as the Lord Altham had done, that the appellant had no right to the woods, for that Earl Arthur was but tenant for life, subject to impeachment of waste; and that the Lord Altham being tenant in tail of the premises, had, by deeds of lease and release, conveyed the same to him, and had sold him the said woods.

The other respondent Charles Annesly by his answer said, he believed that James late Earl of Anglesey was seised in fee of the premises, and devised the same to the respondent the Earl for life, with remainder to all his sons successively in tail male; and for want of such issue, to the respondent Lord Altham for life, with like remainders to his sons successively in tail male; and for want of such issue, to Charles Annesly, uncle of the said Earl James for his life, with like remainders to all his sons successively in tail male; and that he was the first son of the said Charles Annesly, who was dead.

The cause being at issue, witnesses were examined on behalf of the appellant, andof the respondents the Earl, and Lord Altham.

The appellant proved his agreement with the respondent the Earl, and he proved the settlement set forth in his answer, to have been made by his grandfather; that the said James Earl of Anglesey his brother, died without issue male; and that John Earl of Anglesey thereby became seised, and suffered a recovery of the lands whereon the woods grew, and by his will devised the same to the respondent Earl Arthur and his heirs. But the respondent Lord Altham did not make any proof of a title in himself to the premises, as he had alledged by his answer.

On the 1st of July 1724, the cause was heard before the Lord Chancellor, when his Lordship having heard the pleadings opened, and the proofs read, and what was offered by counsel on all sides, was pleased to take time to give his judgment.

And on the 14th of November following, his Lordship was pleased to declare, that the appellant's purchase appeared not to be [220] real, but only colourable, in order to try the other defendants title in equity, which could not be done, being properly at law; and therefore decreed, that the appellant should be at liberty to make use of, and give in evidence the depositions taken in the cause, (which were depositions taken on behalf of the Earl of Anglesey,) against the defendants, the Lord Altham, Bayley, and Annesly, to shew that Knockangarrow were the same lands with Camolin-park; but as to the rest of the bill, that it should be dismissed against those defendants with costs. And as to that part of the bill which sought to stop the respondent the Earl from recovering the purchase-money, his Lordship decreed, that the bill should be dismissed with costs.

From this decree the appellant appealed (T. Lutwyche), because the ground assigned by the Lord Chancellor for dismissing the hill, was, that the appellant's title was properly triable at law; whereas, the appellant had no grant in law of the woods, and could therefore make no defence to any action which might be brought for any of the wood he should cut; neither had be any of the family deeds or writings, to shew the title of the Earl of Anglesey, under whom he claimed.