SIR William Barrett being seized of several Mannors, Territories, Lands and Tenements of the yearly value of 1500 l. or thereabouts, if set to the real value, scituate, lying and be­ing in the County of Cork in Ireland, of an Estate Tail, with remainder in Tail to the Ap­pellant, and being also seized in Fee of divers other Lands and Tenements, did, Feb. 16. 1672, by the perswasion of his Landlady where he lodged, make his Last Will and Testament in Writing, whereby he left (as in Justice he ought to do) and did bequeath to the Appellant all his Intailed Estate; and his Estate in Fee-simple to the Respondent John St. Leger and his Heirs Male, with remainder over to the Appellant: made the Respondent Guardian to the Appellant, and shortly alter dyed.

After Sir William's Death, the Appellant entred upon, and took possession, by the Respondents per­mission, of all the Intailed Lands, and the Respondent entred possession of those which were fee-simple.

The Respondent also accepted (jointly with John Barrett the Appellants Uncle) of the Guardian­ship of the Appellant, and entered into Articles under Hand and Seal, faithfully to perform the Trust of a Guardian Covenanted to sue for the Writings relating to the said Intailed Estate, and to ac­count to him for the Profits thereof, when he should come of Age, and then to deliver him back his said Estate and Trust; in which Articles there is contained one, That the Appellant, when of age, should intermarry with his Daughter, which certainly the Respondent St. Leger would not have covenanted to do, had he not known the Estate in Question was Intailed, and belonged to the Appellant, who had not one Groat in the World beside to depend upon.

Pursuant to which agreement, the Appellant lived with the Respondent a year, was and is a Pro­testant, and constantly went to Church, and the Respondent permitted the Appellant to receive the Rents and Profits of the Lands in question, and in his Right, and as his Guardian Exhibited a Bill into the High Court of Chancery in Ireland, against the Respondents own Sister, who was the Mother of Sir William Barrett; in which Bill he set forth all the Ancient Intails, under which the Appellant claims, and the Appellant's Title to the said Estate in Question; by which Suit he got into his possession from his said Sister all the ancient Deeds and Writings, relating to the Appellants Title; which done, and the Appellant leaving him, and chusing a new Guardian, be­cause he would not marry his Daughter; he the said Respondent contrived how to Defraud him of all his Estate, and for that purpose took the method following.

He Exhibited a Bill in the High Court of Chancery in Ireland against the Appellant, thereby setting forth, that most of the Intailed Lands in Question (and which then by the Respondents own permission) was in the Appellants possession) belonged to him; the said Respondent for that they never were Intailed, but were Lands whereof Sir William Barrett dyed seized in Fee­simple, and had given to him by his Will aforesaid, and to induce the Court to believe that the said Lands were Fee-simple Lands, he set forth, that the same were the Inheritance of Katherine, the Wife of Old Andrew Barrett, who was Great Grandfather to Sir William Barrett and the Appel­lant, and that Andrew, their said Great Grandfather, could not Intail the same; prayed to examine Witnesses in perpetuam Rei memoriam, to prove the Will of his Testator, Sir William Barrett, whereby the same were devized to him and his Heirs.

To which Bill the Appellant answered, and denied all the Allegations thereof. Issue thereupon was joyned, Witnesses examined, Publication past; And The Cause came to Hearing before his Grace the Lord Chancellor of Ireland, 29 Nov. 1677, when (and at seve­ral other Hearings thereof before) the Councels for the Appellant insisted, that the Will being proved, the Cause ought not to proceed any farther in that Court. That Court having no Jurisdiction thereof, it being a Question of Free-hold and Inheritance, which is properly and only determinable at the Common Law.

Nevertheless his Lordship, upon the said hearing, directed that a Tryal at Law should be had upon one single Issue.

Viz. What Lands Andrew the Great Grandfather was seized of in Right of Katherine his Wife, and whether he made any Intails, and of what Lands.

To this Tryal neither the Appellant nor his Counsel ever gave their consent, but were forced thereunto; nor did the Appellant consent that a Jury should be appointed by the Court of Chan­cery, but his Grace commanded the Sheriff to bring the Pannel of the County into the Court, where the same was named: the Foreman whereof Sir Richard Aldworth married his Grace's Neece, Sir Richard Hull was his Sisters Son, besides these there were others related to his Grace, and the Respondent Impannelled; none of which the Appellant durst presume to accept against, because of their Relation to his Grace, and his Graces Relation to the Respondent, who is Brother-in-law to the Earl of Inchiqueen, which Earl intermarried with his Grace's Sister.

A Tryal upon the Issue aforesaid was had, 28 Jan. 1677, when the Jury found that Andrew Barrett, the Great Grandfather was seized in Right of Katherine his Wife of most of the Lands in Question, and also many thousand Acres of Land belonging to other persons, which the Respondent did not Claim by the Bill (adding as followeth), viz. We do not find that the said Andrew made any Intail.

After which Verdict, the Cause coming again to be re-heard, Exceptions were taken to the Pro­ceedings of that Court therein (and against the said Verdict), for that

1. The Court ought not to have proceeded in this Cause to direct the Tryal of any Issue whatsoever, nor otherwise than to have inabled the Respondent to prove the Will in Question.

2. The Issue was unreasonable, Restraining the Appellant from the just Defence of his Right and Title, it being only to try whether Andrew the Great Grandfather made any Intail; whereas if Grandfather, the Father, or Sir William Barrett himself had Intailed the same, the Respondents pretended Right is bound thereby.

3. The Issue was to try an Intail de Jure only; whereas an Intail de facto is sufficient to make good the Appellants Title; and it is notorious that Sir William Barrett in his life-time lookt upon it as Intailed: and in his Answer to a Bill in Chancery, Exhibited against him in his life-time, Swore it was Intailed, and as such devised it by Will to the Appellant, which Intail de facto is sufficient to assertain the Appellants Title.

4. The Verdict in it self is uncertain as to the matter, for it only saith they did not find that Andrew Barrett made an Intail, but doth not say that Andrew Barrett made no Intail; and yet upon this Verdict, which recites but part of the Land in Question. 5 July 1677, the Court of Chan­cery, notwithstanding the Exceptions aforesaid, proceeded to Decree from the Appellant, and to the Respondent all the Lands in Question, without admitting him to a new Tryal, though moved for, and Affidavits made of new Evidence being found after the aforesaid Tryal had; which Evi­dence, by the Respondents Art, were kept concealed till the said Tryal was over. The Cause coming again to be heard, 4 May 1678, his Grace called to his assistance the Lord Chief Baron, Mr. Justice Reynell, the former upon hearing Counsel on both sides, declared the Cause was im­proper for that Court, and that both the Issue and Verdict were uncertain. His Grace (as by the Notes taken upon that days hearing appeareth) declared he was satisfied, 1 Feb. 1677, Sir William Barrett believed there was an Intail, and that he intended something to the Appellant by his Will, but what, was the Doubt. Whereupon he ordered a Reference, advised the Parties to agree, declaring, That if they did not, the Court had the Rains in their hands, and a Hank upon them both; adding, That if the Respondent should insist too much upon his Right, the Court would give the Appellant liberty to defend his Right at Law; and the Court has the Appel­lant in their power, if he should insist too much upon his Right. It having been found there is no Intail; whereupon the Court, in the Appellants absence, without his consent, and when he was above 100 Miles distant from Dublin, proceeded to make an Order of Referrence (the Respon­dent then present, and naming his Referee); by which Order it was directed, that the Appel­lant should meet the Respondents Referree at Cork and there name his Referee to joyn with him, and the Court would make choice of an Umpire; but the Appellant (being advised by his Council, that it might hazard his Title, and injure the Heir in Remainder to attend the said Referrence) never appeared: Whereupon for his Contempt, the Court awarded a Sequestration against all his Estate, before any final Decree made, which Sequestration was continued till December 1678. When his Grace re-heard the Cause, assisted with six Judges; but before the Cause was entered upon, declared to the Judges, that they should only speak to the Construction of the Will aforesaid.

But not to the Jurisdiction of the Court.

Nor whether the Cause were properly Cognizable by that Court.

Nor whether the Issue tryed at Law were a proper Issue; nor whether the Verdict obtained upon that Tryal were certain: Nevertheless the Lord Chief Baron, Sir Richard Keneday, and Mr. Justice Jones delivered their Opinions positively.

1. That the Respondents Bill ought to be Dismist, for that Court had no Jurisdiction of the Cause; and gave as their Judgment, that upon the Will it self the Matter of Law was for the Appellant.

2. The Lord Chief Justice Booth, and Mr. Justice Johnson delivered their Opinions, That al­lowing their former Proceedings to be regular, and that there was no Intail de Jure, or de facto; that then, and in such case nothing past to the Appellant by the Will in Question.

But Mr. Justice Reynell declared, That his Grace ought to proceed to Decree for the Respon­dent: Whereupon

His Grace declaring, 7 Feb. 1678, That nothing the Judges delivered had prevailed with him to alter his Opi­nion, therefore Decreed all the Lands in Question (being all the Estate the Appellant hath) to the Respondent; notwithstanding the Verdict doth not extend to many of the Lands in the Re­spondents Bill mentioned; and for which his Grace upon former Hearings had declared the Re­spondent could have no Decree, yet the Respondent is like to be put into the possession of the Estate which this Appellant and his Ancestors have injoyed, and been possest of for many Hundred years last past.

And although it is mentioned, that the said Decree should be without prejudice to the Appellants having a new Tryal, in case he can find out any new Intail, yet is the Appellant ruined thereby: for, first, there never was any Intail, but what he hath now found, and moved for a new Tryal, because kept from him at the former Tryals, and such new Tryal denied.

2dly, For that as the Order is pen'd, if a new Intail should be found, yet cannot the Appellant have a new Tryal, till he hath first performed the Decree, so that he must deliver the possession of his Estate to the Respondent; which done, he hath not a penny to help himself, or wage Law against the Re­spondent for recovering of it back; besides, the Respondent hath most of the Evidences that prove the Appellants Title in his possession; so that if the Estate be Decreed his, and delivered to his pos­session, the Deeds relating to it belong to him also, and the Decree will warrant his destroying them; which being done, will put an utter impossibility upon the Appellant ever to prove his Titie, or re­cover back his Estate by any Tryal at Common Law, where the Respondent ought to sue for his Right, if he have any, and not in Chancery.

From which Decree and Proceedings (for the Reasons aforesaid, April 1679. as well as for that the same is Illegal and Arbitrary, and tends to the subverting the due course of Tryals of Rights of Inheritance and Free-holds; and if led in Example and President, may prove pernicious to the publick, and by consequence, in a short time, become the Destruction of Property) the Appellant addrest to this Su­preme Court of Judicature and Fountain of Justice for Relief, and appealed from the Jurisdiction of the Court of Chancery in Ireland in this Cause, as well as from the Decree aforesaid, and prayed the Respondent might Answer, and the Cause be heard, and he receive Relief agreeable to Justice, and that his possession in the mean time might be quieted, which Appeal was signed by Serjeant Maynard, Sir Francis Pemberton, Sir Henage Finch, Sir Francis Winnington, and Mr. Keck.

To this Appeal the Respondent answered, this Appelant replyed, and a re-joynder was put in, but the Respondent prevented a Hearing the last Parliament save on, by alledging all his Papers were in Ireland, when-as he came into England on purpose to attend the said Appeal.

The Appellant from April 1679, till Aug. 1680, attended his Appeal in England, waiting for the Sitting of the last Parliament.

The Respondent delivered Appellants Tennents Declarations in Ejectment in Ireland, Easter-Term, 1680, and prest for a Tryal last Summer Assizes, when the Appellant, with all his Evidences, were in England waiting for the Session of the last Parliament (by which be intended to have surprized him); but that was de­nied, and a Tryal at Bar directed to be had Michaelmas-Term last; accordingly a Jury came from the Country of Cork to try the Cause: Notice was given that the Tryal should be had the 22d of Novemb. 1680. 48 l. was Deposited in Court by the Respondent to pay the Jury, and the Respondent upon Apellantsmotion in Chancery (that he might Elect which Court to proceed in, for that he ought not to have two Suits Depending in two several Courts at the same time, and for the same matter) chose to proceed at Law, and his Bill in Chancery had been Dismist, but that it was Exhibited to examine Witnesses in perpetuam Rei Memoriam; so that the Appellant well hoped his Appeal had been at an end, it seeking only for Liberty to try his Title at Law; but the said Respondent, because the Court would not grant Liberty to Exemplifie the Deposition of one Mrs. Brimsdom, Sir William Barretts Landlady examined by him at Bristoll (who is now living), and to use the same at the said Tryal (which was opposed by the Appellant, as being contrary to the Practice of the Court, therefore the Respondent would not proceed to Tryal; took his 48 l. out of Court, and moved, that the Suit might be discontinued; the last motion was denied, and the Suit is still Depending, and ready for Tryal; but the Appellant by these means hath been put to vast charge, in going to Ireland, Feeing Counsel, providing and bringing Witnesses to Dublin; and the Court of Exchequer 27 Nov. 1680, by Rule declared it was not the Appellants fault the Tryal was not heard last Michaelmas-Term.

Now the Reason why the Appellant insisted upon it by his Council, not to give way to the use of the Deposition, desired it as followeth.

The Respondent first Exhibited a Bill only to prove the Will in question: To which the Appel­lant answered, and not opposing the proof thereof, suffered him to Examine Witnesses Ex parte; one of which swore they saw him sign, seal and publish the Will: and this was the Evidence he de­sired to use at Law.

Afterwards the Respondent Exhibited his Bill against the Appellant, not only to Examine Wit­nesses in perpetuam Rei memoriam, but also to have the Estate in question decreed to him. In this Cause the Appellant joyn'd in Examining Witnesses, and Cross Examined the Witnesses he desired to make use of at Law; who swore not only the Will made and published, but also that it was done at her desire; and that at the same time Sir William Barrett told her he had refused to make a Will before, though prest thereto, for that his Estate was Intailed, and he left it to a poor boy in Ireland of his Name, to keep up the Name of his family; adding, That seeing God had given it him, he would not take it from him.

The Appellant never denied the making use of this persons Testimony in the Cause, wherein the Decree was pronounced, and the Tryal aforesaid directed, but offered to consent thereunto; but the Respondent would have publisht it in the first Cause, where Examined Ex parte; in which Cause never any farther proceeding was yet had: and this purposely to defeat the Appellant of the benefit of his cross Examination; which the Appellant opposed, and the Court denied to Grant: Whereupon,

The Respondent leaving the Appellant in Ireland, 20 Dec. 1680, came to London.

Petitioned this most Honourable House for a hearing, alledging great damage by the Appellants delay, and obtained Order for the Cause to be heard 20 Jan. 1680, without any other notice to be gi­ven to the Appellant, then by the affixing up the Order upon the door of this most Honourable House. The Appellant Petitioned, 14 Dec. 1680, setting forth the Proceedings aforesaid, and what delays and tricks had been used by the Respondent, that he was advised his Appeal was at an end by the Respondents chusing to proceed at Law: Therefore prayed that he might not be surprized, offering, if he might have convenient time to come to a hearing, if your Lordships should think fit to hear the Cause. Whereupon

It was Ordered the said Cause should be peremptorily heard the 1st of February 1680.

Accordingly Sir Mathew Dean his Agent came into England 16th January 1680, found the Parliament Dissolved, and hath ever since waited here in order to the hearing of his Cause before this most Honourable House.

This being the third time Sir Matthew Dean, with the Records and Evidences to prove the Ap­pellants Title to the Estate in question hath been hazarded at Sea; (which Evidence if lost, the Appellants Title at Law can never be made out). The Appellant hath spent these six years in Suits to defend his Right above 4000 l. which hath put him into so great debts, that he cannot appear; and if the Cause be not determined by your Lordships, the same will be his, and his posterities utter ruin. Therefore it is most humbly prayed this Cause may receive a determination before your Lordships this present Sessions.