Page:The English Reports v1 1900.pdf/299
and upon the examination of the said Mr. Thompson, touching the said commission and survey, and the copy or copies thereof made by him as aforesaid; and upon reading the said order of the 26th of February last, and the said order or decree of this Court, made the 18th day of June, in the 19th year of the reign of the late King James the first, the said entry or inrollment in the auditor's book, and also of the affidavits of John Todd, Gent. and of Robert Squire, Gent. and upon hearing Sir John Hawles, Knight, his Majesty's Solicitor General, Mr. Ettrick, Mr. Dodd, Mr. Stone, and Mr. Cheshire, on the behalf of the said Lord Wharton, opposing the filing of the said commission and survey: And upon view and perusal of the said commission, articles, and survey, and on long debate of the matter the Court Seriatim, delivering their opinions touching the same, it is thereupon this day ordered by the Court, that the said order of the 26th of February be, and is hereby set aside; and that the said commission, articles, and schedules, purporting the survey as aforesaid, be allowed as a record of this Court, and filed accordingly on the proper file, (to wit,) amongst the inquisitions and extents of the sixteenth year of the Reign of the said King James the first; but the inrollment thereof, prepared by the said Mr. Thompson, is hereby set aside; and the entry of the said inrollment, on the said commission and schedules, is to be obliterated.
And in support of this appeal appellant stated, that he had a cause depending in Chancery, about the boundaries of certain lands in the mines of Yorkshire, in which cause respondent was a defendant; and finding by respondent's answer and cross bill in Chancery, that a pretended survey of the honour of Richmond and lordship of Middleham, was much relied on by respondent, appellant caused diligent search to be made in all the offices of record, but could not then find any such: And that appellant had afterwards discovered, that about Michelmas term, 1700, the pretended survey had by respondent's contrivance, whilst the said cause was depending, been privately brought out of Yorkshire, and delivered to one Thompson, an attorney in the [274] Exchequer, an agent for respondent, with design that Thompson should secretly file the same, with intent to make use thereof when upon record as evidence in that cause; and that Thomson had, without any warrant, taken upon him to receive it as an officer, and to keep it for some time privately, and had also clandestinely made and prepared an inrollment thereof, which appellant had likwise discovered, and thereupon applied to the Court of Exchequer; and that the Court of Exchequer thereupon, 20th February, 1700, made an order to suspend the filing it; and afterwards, on respondent's application, made the order of the 15th July, 1701, by which last final order appellant conceived himself aggrieved, and insisted it ought to be set aside and discharged, and that the pretended survey, or parchment writing, should be ordered to be put into the same state and condition wherein it was when the said suits were commenced; because it was not denied that it had been for 28 years out of the Court, and out of the custody of any sworn officer; nor was there any order of Court for taking out the same, nor any manner of account given by whom it was taken off the file, nor where it had been from that time until it was pretended to be found amongst the papers of Grainge after his decease, who had died about five years past; and that from that time, instead of being immediately transmitted into the office, it appeared to have been privately kept by respondent's agents for some years, and endeavoured to be privately filed, without the knowledge or order of the Court: And that it was now manifestly imperfect, and that some schedules had been taken from it; and that there were no verdicts, depositions, plots, or maps, now remaining therewith, all which were required by the commission, and by the certificate and return appeared to have been taken, and were referred to for the explanation thereof, the commissioners in their return referring to several schedules as annexed thereto, and though to answer in appearance the words of the return, the certificate was now divided into eight several pieces, or presses, each figured or numbered at the top, yet that it appeared by the stitches at the top and bottom of each press, that they had been originally all sowed together as one long schedule; and that Thompson owned that he or his master set the said figures thereon: And that it appeared by several holes in the parchment where it was now tied, that it had been often untied; and that the office book wherein the account would [275] have appeared of the true number of schedules originally returned therewith, had been
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