Page:The English Reports v1 1900.pdf/325

respondent being informed that appellant had unfairly retained a great number of attornies in the solicitation and management of the same, who had made mighty application in his favour, respondent without attending the success of the cause became non-suit, and forthwith brought a new action in the county of Salop; but before the cause could be tried, appellant brought on his cause in Chancery to be heard, upon which the Court was pleased to [325] direct that the parties should proceed to try the cause in the county of Salop, being an indifferent county, though great endeavours were used to carry the cause into Staffordshire, where appellant had great interest and power; and the Court directed that the cause should be tried by a jury of gentlemen of quality of that county, and accordingly such a jury was returned; and the respondent on the trial produced a specification of the bond, but it not being exactly according to the act of parliament, although the duty was paid to the receiver, and appellant's council insisting thereon, respondent was for that cause only nonsuited; and upon application made by the appellant the next ensuing term unto the Court of Chancery, for the costs of that nonsuit, and respondent was forced to pay 50l. costs before he could have a new trial: And that at a new trial had last Lent assizes for Salop, by a jury of gentlemen of great quality, a verdict was given for respondent, that the bond was the deed of Thomas Scott; and then the cause was beard upon the equity reserved, and appellant pressed for a new trial, which the Court, after two verdicts for the bond, refused to grant, and dismissed the bill with 20l. costs: And that appellant petitioned the Court to rehear the cause, which was accordingly re-heard; and then again pressed for a new trial, which was again refused, but was relieved against the penalty of the bond: And that appellant, who was near eighty-six years of age, had appealed for delay; wherefore respondent insisted the decree of dismission ought to be affirmed. (W. Banastre.)

Die Martis, 29 Februarii, 1703. After hearing council upon this appeal, it was ordered by the Lords that the decree, or orders, complained of, be reversed so far only as that a new trial should be had, touching the validity of the bond in question, upon a feigned issue, "Whether the writing in question be the deed of the intestate Thomas Scott," in the Queen's bench, at the bar, by a special jury of the county of Middlesex in next term: And that appellant should name an attorney, and be plaintiff in that action: And that respondent should produce the bond in question at the trial; and that the money decreed being 657l. 7s. 6d. and 20s. per month interest since 27th January last, should within fourteen days be brought into Chancery; which, if not done, or trial not proceeded on, or if on the trial verdict for respondent, then this appeal to stand dismissed, [326] and the decree affirmed; and the money to be brought in immediately paid to respondent: And further ordered, that if at the trial verdict for respondent, appellant should pay him bar-costs; but if for appellant, respondent not to pay any costs, as was offered by appellant's council at the bar.—Lords Journ. vol. xvii. p. 463.

N.B. It appears from the Journal, p. 581, that, 17th November, 1704, the money which had been brought into Chancery, pursuant to the Lords former order, was ordered to be paid out to appellant, the respondent (as there expressed) so consenting.

The appellants made this case: That they were incorporated by charter from the Crown, and had thereby a grant of the trade to Africa, exclusive of all others, with power to seize on all ships and cargoes which should presume to trade thither and that his late Majesty King Charles the second, to enable the company better without their licence, and to dispose thereof, reserving one moiety to the Crown; to carry on their trade from time to time, sent one or more ships of war to the coast of Africa, to take all ships found trading there other than the company's, and to deliver them to the company's factors there; and that in the year 1676, Captain