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counsel, that the order of the 27th of February might be discharged, as against him; and he also shewed cause why the order of the 10th of December 1760, should not be made absolute against him, upon affidavits stating the above-mentioned facts, and upon the letter of attorney from the Earl of Clanricarde to Mr. Burke, dated the 12th of December 1740; when upon debate, the Lord Chancellor was pleased to order, that the cause shewn by the appellant against the order of the 10th of December 1760, should be disallowed, and that the said order should be made absolute against him.

On the 9th of October 1761, the Master reported Peter Kilkenny the best bidder for the appellant's lands, at 7s. an acre (the appellant's rent being after the rate of 5s. an acre); and on the 14th of the same month, the Lord Chancellor was pleased to order, upon the petition of the Earl of Clanricarde, that an injunction should issue to put the said Peter Kilkenny into possession of the appellant's lands, which was executed, and Kilkenny put into possession thereof accordingly.

From these several orders of the 10th of December 1760, and the 27th of February, 18th of April, and 14th of October 1761, the present appeal was brought; and on behalf of the appellant it was insisted (C. Yorke, J. Madocks), that what Mr. Burke did as the respondent's agent, ought to be binding upon the respondent. That Mr. Burke was the person who set the value on the lands, and declared his approbation of a lease to be made, at £110 per ann. That Mr. Butler's agent did no more than make the lease pursuant to such valuation; and which lease was again recognized by Mr. Burke, by his accepting the appellant's bond for the proposed improvements: the respondent was therefore bound by the lease, and ought not upon his petition to have objected to the rent thereby reserved. That the appellant, relying upon the validity of his lease, had laid out £300 in improving the estate, which he did upon the faith of the respondent's consent to the lease; and the rise of 2s. an acre in the value of the estate being owing to the appellant's improvements, it was unjust for the respondent to avail himself, and strip the appellant of the benefit of those improvements. It was therefore hoped, that the said several orders, so far as they affected the appellant and the lands of Tyrehane, would be reversed; and that the possession thereof would be restored to him, with his costs.

[344] On the other side, it was said (T. Sewell, A. Wedderburn) to appear by the proceedings in the cause, that the respondent the Earl and his ancestors had been already greatly injured, by being so long kept out of the possession of their estates, under pretence of incumbrances unfairly obtained at first, and which had been long since satisfied by the rents and profits of those estates; and as many of the defendants in the cause lived out of the jurisdiction of the court, it had been impossible for him to bring his cause to hearing in any reasonable time. That the order of the 27th of February 1761, whereby the order of the 10th of December 1760 was made absolute, was regularly obtained, in default of the appellant's shewing cause against that order in a reasonable time; it appearing by his own affidavit, that he had notice of it on the 16th of the same December, and he never gave notice that he intended to shew cause against it, till the 21st of January 1761, and did not then move on that notice, but gave another on the 16th of February following, which he did not move upon till after the order of the 27th of that month was obtained. That the letter of attorney under which the appellant pretended the respondent's uncle Mr. Burke was impowered to make leases of his estate, could extend only to such part of the estate as was in his possession, and not to such parts as were in possession of the incumbrances; neither did the appellant take his lease from such attorney, but from Mr. Gallway the attorney for the representatives of Lady Iveagh, without the privity or concurrence of Mr. Burke: and though in March 1746, he wrote a letter to Mr. Gallway, whereby he valued the lands at only £110 a-year, yet such value was not mentioned as a rent to let the same at, for a lease of 31, or any number of years whatever, nor was Mr. Burke made a party to such lease, nor was the same or any draft thereof laid before him, nor was he made acquainted therewith, or consulted about the terms on which the said lease was granted; but the matter was carried on and transacted in a private and collusive manner, without his consent or privity; and the rent of land in that part of Ireland was at that time so considerably raised, that the rent of