Page:The English Reports v1 1900.pdf/377

The appellant made this case: That respondent, David Codd, William Wogan, and appellant, 7th of December, 1705; became jointly bound to George Robinson, Esq. in a bond of 400l. penalty, to pay 200l. and interest, on the 8th March, then next, and that this was for the proper debt of the other three, who divided the money between them, appellant having had no part; and then respondent, Codd, and Wogan, gave appellant a counter-bond in 800l. and Robinson, about Trinity term, 1706, put his bond in suit against the four obligors, in several actions; and they employed appellant as their attorney and solicitor, to bring a bill in Chancery, to be relieved against the penalty of that bond; and appellant therein laid out considerable sums, and was greatly damnified thereby, and by the action brought against himself; and his co-obligors refusing to reimburse him, he, about Hilary term, 1708, put his counter-bond in suit against respondent only, who moved the court of Common-Pleas to have appellant's bills taxed, and brought Codd with him to consent, by rule of court, to pay what the Prothonotary should tax due to him; but respondent, or Codd, not proceeding upon that rule, appellant, obtained liberty to proceed in his action; and thereupon respondent, upon a bill in Chancery, for relief against the counter-bond, obtained an injunction to stay appellant's proceedings at law: And that appellant in his answer denied the pretended equity thereof, and annexed a bill of his disbursements and other demands, and submitted to have it taxed, and to deliver up the counter-bond, on payment of the sum to be taxed; and then exhibited a cross-bill against respondent and the other obligors, for discovery of his retainers; and Feb. 14th, 1710, obtained an order to stop in the original cause, till defendants should have answered the said bill, and then both causes to be heard together, and thereby publication was stayed in the original cause, according to the constant practice of the Court: But, 28th June, 1711, respondent moved to discharge that order, and it [438] was then ordered by the Lord Chancellor, (Harcourt) then Lord-Keeper, that respondent's clerk should give appellant a note in writing, where the other defendants lived, and appellant to proceed against them; which note never was given: Yet, 20th of July, 1711, respondent obtained an order, whereby the order of the 14th of Feb. was discharged, and appellant deprived of the benefit of the other defendant's answer to his cross-bill, and also of the benefit of examining his witnesses: And that whilst the cause stood in the paper for hearing, respondent's clerk (without any order to transfer it) set down the cause to be heard as an original cause; and in Michaelmas term, 1711, brought it on without any notice to appellant or his clerk, and so it was heard ex parte, and a decree obtained against appellant, as by default: That Robinson should, at respondent's charge, acknowledge satisfaction on record of the judgment obtained by him against respondent, and respondent to pay him 40s. for his costs; and that appellant should pay respondent all costs which he had been put to at law by Robinson's suit against him, together with what costs respondent paid in that suit; and if respondent was then liable to pay any costs therein, it was further decreed that appellant should indemnify respondent against them, and also should pay any costs respondent had been put to by reason of appellant's putting his counter-bond in suit, together with such costs as respondent should pay Robinson, and likewise respondent's own costs in this suit; and that appellant should deliver up his counter-bond to be cancelled, and a perpetual injunction against the same; and in appellant's default therein, that Codd should pay these costs to respondent, and be at liberty to make use of respondent's name, to recover over against appellant unless cause by the return of a subpœna; and that appellant shewed cause against the decree, 7th May, 1712, and insisted on the irregularity of the proceedings, which was referred to Mr. Rogers, who, 14th May, certified that the proceedings were irregular; but that to this report respondent took exceptions; and 30th of July, 1712, the report was discharged, and the decree made absolute; which proceedings and decree, appellant insisted were erroneous and unjust; because, by order of the 20th July, 1711, the order of the 14th of Feb. was discharged, and appellant deprived of examining his witnesses, and respondent's cause heard, ex parte, as against appellant; and both