Page:The English Reports v1 1900.pdf/378

causes ought to have been heard [439] together, and publication to have been stayed until defendants had answered appellant's cross-bill: And further insisted that the master's report ought not to have been discharged, and that the decree ought to have been set aside as irregularly obtained; and that the decree was itself unjust; because appellant ought not to pay respondent any costs, nor indemnify him against any, on account of the counter-bond or otherwise; and that the counter-bond ought not to have been decreed to be delivered up, nor any injunction awarded against it. (J. Pratt. N. Lechmere.)

The respondent stated that appellant, an attorney at law, by the means of David Codd, procured 150l. to be lent by Robinson, Esq. to respondent, and 50l. to Codd; and that the bond and counter-bond stated by appellant were entered into; and that in April following respondent, who had no acquaintance with appellant, paid Codd 150l. with interest, being his share of the money borrowed before any suit commenced, and Codd undertook to see the bond discharged, but did not; and Robinson took out a writ against respondent Codd and appellant, who acted only as Codd's attorney; and Codd, and appellant, without respondent's knowledge, gave bond to the sheriff for respondent's appearance to the writ, and appellant took upon him to appear as attorney for respondent to the action in the Common Pleas, without respondent's privity, and received a declaration against respondent in that action, and suffered judgment to be entered against him, and afterwards brought a writ of error in respondent's name, and procured bail thereon, and appeared to a Sic' fac' to assign errors, and the judgment was affirmed without the least knowledge of respondent; and afterwards exhibited a bill in Chancery, without respondent's knowledge in the name of himself, respondent and Wogan, against Robinson; in which suit Robinson served respondent with a subpœna for 40s. costs of over-ruling exceptions to his answer, which was the first notice respondent ever had of any of these proceedings; and at the principal equity sought by that bill, was for appellant to set off a debt he claimed of Robinson for law charges against the bond; and that this bill was dismissed with costs, which Robinson compelled appellant to pay, the bill being framed solely for appellant's own benefit; and then Robinson proceeded on the judgment against respondent and Codd, and recovered the 200l. with interest and costs at law, and le-[440]-vied the same on Codd; but appellant did not pay any part, nor was appellant in any manner damnified by the said bond, notwithstanding which appellant brought an action against respondent on his counter-bond 800l. and extorted 20l. from him on pretence of damage; and the condition of the counter-bond being to pay at the day in the original band, respondent could not at law plead payment, though the money had been really paid: and therefore exhibited a bill as stated by appellant; and all the defendants having answered, rules were given for publication in Trinity term, 1710; and after publication twice respited on respondent's petition, appellant moved to respite publication further to the first day of the then next term, which was granted on terms, that respondent should be at liberty to set down his cause the same term, and appellant to appear gratis, on six days notice to his clerk in Court, and pray no day over; and publication was afterwards twice respited till the second general seal after that term; and in Hilary, 1710, pursuant to the former order, the cause was set down for the 1st of Feb. 1710, and notice in writing given to appellant's clerk; but to prevent the hearing, appellant, in that term, filed a bill against respondent, Robinson and Codd; and by petition, suppressing the proceedings in the original cause, obtained the order that proceedings in the original cause should star till defendants should answer appellant's bill, and then both causes to be heard together, which order wholly stopped respondent's cause; for though respondent answered appellant's bill, yet the other defendants not answering, the cause could not proceed, for appellant never served Robinson or Codd with a subpœna to answer his bill, and by this artifice appellant always meant to delay respondent, for he never proceeded in his cause but by an order 1st August, 1782, his cross-bill was dismissed; and the Lord Chancellor, on a full hearing of council on both sides, discharged the order of 14th of February; and on respondent's special application, his cause was set down to be heard, and a subpœna served on appellant to bear judgment; and 14th November, 1711, the decree complained of was made on appellant's default, and that appellant obtained an order to refer the regularity