Page:The English Reports v1 1900.pdf/697

The respondent opposed this application by a counter petition, stating the same facts as Mrs. Vernon had stated; and insisting (W. Murray), that though the order of the House limiting the time for bringing appeals was out of the case, yet the original parties to the suit being dead, no appeal could be brought without first reviving the suit below; and which being entirely relative to the inherit-[448]-ance of lands, could only be done by the heir at law of John Vernon; and even was he desirous of appealing from the decree of 1686, he could not do it under the circumstances of this case, without first filing a supplemental bill, as well as a bill of revivor; stating Colonel Vernon's will in 1684, his mortgages to Carter and others, and the respondent's recovery in ejectment, and making the trustees and devisees in that will, and the representatives of the mortgagees, as well as the Colonel's heir at law, parties to such suit. But as the heir acquiesced, Mrs. Vernon could not bring an appeal from this decree; because her right arose under a mortgage not made till November 1707, above twenty years subsequent to the date of the decree; and which right having no existence at the time of the decree, could never entitle her to appeal from it; nor could this right, such as it was, appear or come in question before the House, under an appeal from the decree of 1686, the mortgage and will under which she claimed being no part of the proceedings below; and therefore the House must exercise an original jurisdiction to let the parties into proof concerning these facts. Besides, the House could not, on such an appeal, give judgment different from what was prayed by the bill on which the decree of 1686 was founded; and which, supposing that decree should be reversed, must be for George Venables Vernon, as heir at law of Colonel Vernon, to convey the inheritance of the lands of Clontarff, and the island adjoining, and one-third of the Hollybrooks, (to no part of which Mrs. Vernon claimed the least title,) as well as the other two-thirds of the Hollybrooks, (to which she claimed to be entitled for a term of years,) to the heir at law of General Vernon, who desired no such decree, but acquiesced under that already made; and such a decree as this could not be made on the appeal of Mrs. Vernon, who claimed no interest but in a small part of the premises, and that for a term of years only. But if such a decree could be made on Mrs. Vernon's appeal, it would be of no service to her; the only decree she could pray, or was entitled to pray, being to have the respondent's judgment set aside, and be restored to the possession of the two-thirds of Hollybrooks, till she was satisfied her principal and interest, or to have what remained due to her on mortgage, raised by sale of the mortgage term; which decree was impossible to be made on John Vernon's bill, or by any judgment to be given on an appeal from the decree of 1686. That the mortgage under which Mrs. Vernon claimed, being only for a term of years, which is a chattel interest, by way of security for a sum of money, and affecting only a very small part of the lands in question in the cause below, she could not in any view so connect her case with that of the heir at law, as to be considered as standing in his place; neither had she the same kind of right or interest in her by conveyance from the plaintiff, as the plaintiff had; hers being only a redeemable interest in a small part of the lands for a term of years, whereas the heir was entitled to the absolute inheritance of the whole. And as to Mrs. Vernon's making the heir of John Vernon, and all other proper [449] parties respondents to the appeal, there was no instance of any person's being permitted to bring an appeal, who had not the same right as was in the party aggrieved by the decree; nor where the House ever permitted an appeal to be brought under a new and different right from that which was, or appeared to be, in the parties below; and to make new and original parties before their Lordships, and to enter into new proofs of title, not made out in any of the Courts below, or upon which any decree had been made below, was what could not be done without exercising an original jurisdiction: and if the heir at law of John Vernon was to be made a party respondent, and the decree should be reversed, it must be reversed not in favour of the appellant, but of the heir as respondent, which could never be done. That if the general order of the House, for limiting the time of bringing appeals was out of the case, yet Mrs. Vernon ought not to be at liberty to appeal from the decree of 1686, whilst her bill in the Court of Chancery was pending for the same matter; but she ought to have dismissed that bill, before presenting her present petition; it being a settled maxim both in law and equity, that no person shall be doubly vexed in two Courts, at one and the same time for the