Page:The English Reports v1 1900.pdf/655

appellant, and of John Flood, as executors of Thomas Butler, for an arrear of the yearly rent of £92 under the fee-farm deeds of October 1728, alledged to have become due to Thomas Butler in his life-time, although Thomas died fourteen years before, and Francis had, with the consent of Thomas, applied the rent to the payment of his debts. Francis having been turned over to the four courts marshalsea in Dublin, for want of bail, he, on the 2d of November 1750, filed his bill in the Court of Exchequer in Ireland, against the appellant and John Flood, and others; setting forth the fee-farm grant of October 1728, several debts of Thomas, for which he was bound to the said John Flood, and to Edward Evans, William Markham, William Hayden, George Huish, Charles Flood, and Michael Roth, esqrs. and others, to a very large amount; and that he had paid several debts, bills of costs, and other expences, which attended several [386] law-suits in which Thomas was involved;—that he had, from the time of the execution of the deeds in October 1728, supported and supplied Thomas and his family, viz. Elinor his wife, Pierse the idiot, James the appellant, and Catharine and Ann his daughters, and their servants and horses, with diet, cloathing, lodging, washing, hay, oats, grass, and all other necessaries, and bound the appellant apprentice to an attorney, and paid for him a sum of £70 as an apprentice fee, for all which he never received any payment;—he also stated the articles of the 28th and 29th of January, and 1st of March 1735, and the marriage in consequence thereof between him and Elizabeth, and that the said several deeds were prepared and engrossed by the appellant;—that Elinor, the widow of Thomas, refused to be content with the £40 a-year, agreed to be paid to her by the articles of the 29th of January 1735, but insisted on dower out of all the estates of Thomas, and was then in receipt of £300 a-year thereout, under favour of the appellant, whom she employed for that purpose;—that Francis was arrested, and committed to the marshalsea for want of bail, for the debts of Thomas; and that the appellant insinuated himself, under the colour of brotherly love and affection, into the confidence of Francis, and thereby obtained from him the key of his closet, where his papers and family deeds were, and possessed himself thereof, and obtained from him the lease of the 3d of December 1737—(in which Flood the mortgagee joined at the rent of 40s. a-year, during the life of the said Elinor, and £6 a-year afterwards, which was considerably less than the value of the premises thereby demised)—on pretence that the appellant would influence Elinor to contribute largely out of her dower to the payment of the debts of Thomas; instead of which, or returning the said deeds and papers, the appellant filed the said bill in the year 1747; and Francis by his said bill prayed an injunction against the appellant and Flood, to stay proceedings on the said action, and to have the said deeds and papers delivered up, and for an account; and obtained an injunction, whereby the proceedings on the action were stayed.

To this bill however the appellant, in opposition to Francis's title, put in his answer, and (inter alia) said, he had heard and believed that his father Thomas was seised of some estate of inheritance in the lands in Kilkenny and Tipperary, in virtue of a settlement made in the family from whom Thomas was descended, and enjoyed said estates in Kilkenny and Tipperary accordingly under said settlement; and heard and believed, that Thomas had but a use for life of the said estates.

The appellant having thus been disappointed in his designs, thought proper, in the beginning of the year 1753, to propose to Francis an accommodation of differences between them; to which proposal (Francis being tired with the litigation and expences brought upon him by the appellant, and his engagement for the debts of Thomas) willingly agreed; and the terms of the agreement having been settled, Francis and the appellant entered into and executed a deed-poll or agreement in writing, dated the 27th [387] of April 1753, whereby it is mentioned, that in order to put an end to the several litigations and proceedings between the parties, Francis did, on his part, promise and agree to release or convey to the appellant one third part of the estates that belonged to Thomas Butler, in the counties of Kilkenny and Tipperary; and the appellant did likewise, on his part, engage to indemnify and save harmless Francis, from any dower that Elinor their mother should or might thereafter have or claim against Francis, his heirs and assigns; and Francis did thereby oblige himself to give the appellant his fit and