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but to throw away a fee, for that appellant was not, nor should he be personally liable; and that appellant executed the contract under that confidence, and soon after made an assignment to Cholmley upon Lord Ranelagh, the army paymaster, for payment of the said sum of [167] 233l. 12s. 6d. out of the off-reckonings, which was duly entered in the paymaster's books, and Moyer accepted the same in discharge of the contract on appellant's part, and thereupon the appellant, considered himself discharged; and that 430l. 7s. 4d. had been received by respondent, Boddington, pursuant to that assignment; and that other monies were ready to be paid when demanded; and that though Moyer solely contracted, and made the agreement with appellant, who knew not that any other person was concerned with him therein, yet it was pretended respondents, James Boddington and Tracy Pauncefoot, were to be partners with him in that contract, and also in the cloathing of Colonel Brewer's, Colonel Lauder's, and Sir David Collier's regiments, and that they cast lots, and appellant and Colonel Brewer's regiments fell to respondent Boddington, and the two other regiments to Moyer and Pauncefoot; and that the off-reckonings of the year 1695, being insufficient to pay for the cloathing of that year, and part of the off-reckonings of the succeeding year, 1696, being in such case (by the constant course of paying in the 'army, to be applied to make good such deficiency; and there being an act of parliament passed in the year 1697, (9 & 10 Will. 3. p. 464) whereby, it was enacted, that the off-reckonings for the year, 1697, should be applied to pay the cloathing of that year, and Boddington being hereby disappointed, he, in Cholmley's name, brought an action at law against him upon the contract, to enforce him to pay the 2331l. 12s. 6d. out of his own pocket; and that appellant had unadvisedly pleaded, that the cloaths were not delivered at the time by the contract they ought to be; and therefore appellant, in January, 1699, exhibited his bill in Chancery for relief; and that respondent, Boddington, had in his answer confessed that the contract was made between appellant and Moyer, and that the appellant executed the assignment upon Lord Ranelagh for the 2331l. 12s. 6d. to be paid out of the off-reckonings of the regiment; and that the meaning of the contract, and custom of the army, was, that the cloathing for 1696, was to be paid for out of the off-reckonings for that year; and in case they proved insufficient out of the off-reckonings for the next year, and that that assignment upon the off-reckonings was to be accepted in satisfaction of the cloathing, and appellant not to be answerable in his own right or [168] person, if appellant had not prevented him from the benefit of said assignment, which respondent alleged he had done; and that he Boddington, did know of the regiments having been in debt when the contract was made: And that witnesses were examined on both sides, and appellant had fully proved his case; and that Boddington knew of the regimental debts before the contract, and did not, neither could he make any proof that appellant had done any thing to prevent his having the benefit of the assignment; and that pending that suit, Boddington proceeded at law, and issue being joined upon the delivery of the said cloaths, obtained a verdict and judgment against appellant, and took him in execution thereupon; and that the cause was heard, 20th February last, before the Lord Keeper, who would not give appellant any relief, but left respondent Cholmley at liberty to proceed at law upon, but ordered. that he should deduct the 430l. 7s. 4d. received by Boddington; yet appellant insisted he was intitled to be relieved against that decree, because it was proved by the admission of Moyer, and likewise proved in the cause that, however the contract might be worded, it was expressly agreed that appellant should not be chargeable in his own person or right, and that he was hindered from advising with council by Moyer's assurances and promises, that he should not be personally liable; and because Boddington knew the off-reckonings of that year were charged with the cloathing of a former year; and because there were on that account great prices allowed for the cloaths; and because Boddington had admitted by his answer, that the assignment on Lord Ranelagh was to be accepted in full satisfaction, and appellant not to be liable of his own estate or person, unless he should by some act of his, frustrate the same, and that there was no colour of proof of any such thing. (John Hawles. Henry Pooley.)

The respondents, on the other hand, shewed that James Moyer, being agent to