Page:The English Reports v1 1900.pdf/1101

In April 1760, the respondent put in a plea in bar to the relief and discovery sought by the bill; and for that purpose pleaded, that John Charles, about the 29th day of February 1719, filed his bill in the said Court of Exchequer against the said Hercules Rowley, charging the facts previous to the 29th of February 1719, in effect as before set forth; that on the 12th day of May 1720, the said Hercules Rowley put in his answer thereto; that witnesses were examined, and on the 21st day of February 1723, the cause was heard; when it was ordered and decreed by the court, that the said bill should be dismissed, so far as it related to a renewal of the said lease; and the respondent referred to such proceedings and decree, averring, that the decree was unreversed and in full force, and no ways altered or varied since the pronouncing of it; and that the said John Charles, Hercules Rowley, Sir Arthur Langford, and the lands, lease, and covenant of renewal mentioned in John Charles's bill, and the appellant's bill, were the same, and not different: he farther pleaded, that John Charles, or any of his representatives, or any person claiming title to [491] the said leasehold estate under him, never took any step to appeal from the said decree, or to rehear the cause, or otherwise draw in question the justice of the decree, till filing the appellant's original bill in this cause; and that John Charles did not, in the bill filed by him against Hercules Rowley, or otherwise, name any life; nor did any other person claiming the lease under John Charles, name any life, in the place of Alice Charles, till the 18th of January 1747; and that Richard Charles, one other of the cestique vies in the lease, died in or before the month of January 1746.

The respondent also put in an answer, whereby he claimed title to the lands under Sir Arthur Langford's will; and said, he believed that, by the loss of papers, he was deprived of evidence very material, to support the decree pleaded by him.

The appellant being advised that a memorandum in the Register's note or minute book, of the pronouncing of such an order, could not be pleaded, as a complete decree, amended his bill; charging, that if any such cause was ever heard in that court, and such order made thereon as pretended, (which he in no wise admitted,) such order was never signed nor inrolled, nor entered, nor even drawn up, which the appellant insisted was necessary to give a judicial force and effect to the decrees and orders of that court; and before the drawing up, entering, or inrolling of which, it was not in John Charles's power to appeal therefrom, nor rehear the cause; and therefore the appellant ought not to be bound or prejudiced by the bare pronouncing of such order, if any such was in fact really pronounced; and that no papers or writings of any consequence were lost or mislaid, as the respondent pretended.

On the 18th of March 1761, the respondent put in a plea and answer to this amended bill; the plea in substance was the same as his former, except that he now also pleaded to the injunction prayed by the appellant's bill; and by his answer said, he believed the decree in his plea mentioned, was not inrolled, nor formally drawn up nor signed by the then Chief Baron of the court, but that it was duly entered in the Register or Remembrancer's book of the said court.

The court, after hearing the plea argued for several days, pronounced the following order: "9th February 1763: Over-rule that part of the plea which goes to the discovery, and allow that part of the plea which goes to the relief prayed by the bill." This order the Register entered in his note or minute book, in like manner as the former order pronounced in 1723; but the very next day the court, ex officio, ordered the Register to strike it out of his book, resolving to take the matter into further consideration.

[492] The Barons being divided in opinion, no decree was pronounced till the 5th of December 1763; when, upon the appellant's application for judgment, the Chief Baron, although he was clearly of opinion that the benefit of the plea ought to be reserved to the hearing of the cause, with liberty to except; yet to expedite justice, by giving the appellant an opportunity of appealing, he joined with the second Baron, and ordered and decreed, that the plea put in by the respondent to the appellant's bill should be allowed; but without prejudice to such other methods of proceeding, as the appellant might be advised to take, in order to obtain the relief sought by his present bill.

Accordingly the present appeal was brought; and on the appellant's behalf it was contended (W. de Grey, A. Forrester), that the original suit abated by the death