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In consequence of the determination of the former appeal in this cause (Vide MS. Jour. sub. anno 1772–3. p. 177), the appellant prepared for the trial of the issue, which was to have been tried at the summer assizes of 1773, held at Clonmell, for the county of Tipperary; but on the 13th of July 1773, a few days before the assizes were to have been held, the respondents moved the court, and upon reading the affidavits of the respondent Damer Edgworth, in support of the motion, and of William Lane against it, it was ordered that the issue directed in the cause, should be tried in the county of the city of Dublin, by a jury of the said county; although Mr. Baron Power declared himself to be of a contrary opinion.

The substance of the affidavit made in support of this motion, was, that the lands in question lay in the counties of Meath, Westmeath, and Kildare; that the appellant had a large estate and property in the county of Tipperary, and several incumbrances affecting many estates there, and by that means had a very powerful interest and influence in that county, so that the respondents could not expect a fair trial; that on account of the distance of Clonmell, the ages and infirmities of their witnesses, and the expence of producing them there, the respondents were unable to support that expence; that the principal gentlemen at the bar were retained for the appellant; and that the respondents were not able to fee counsel who did not go that circuit.

This affidavit was answered by the affidavit of the appellant's Solicitor Mr. Lane, who deposed, that to his knowledge and belief, the appellant was not related to, or connected with any considerable family in the county of Tipperary, and that his connections with any family in that county gave him no influence therein; that the appellant had no incumbrances upon or affecting any estates in Tipperary, exceeding the amount of £3200 due to him on judgments; that the respondents might expect to have, and would have as fair and equal a trial in that county, as in any county in this kingdom; that he had retained only three lawyers as counsel for the appellant, upon the trial of the issue; and that the respondents had the choice of thirty more at least, most of whom were deemed gentlemen of ability.

[465] The appellant apprehending this order to be exceedingly erroneous, appealed from it; and on his behalf it was insisted (A. Wedderburn, J. Maddocks), that the decree of the 25th of November 1771, having been affirmed by the House of Lords, with only an addition, became a decree of that House; and consequently, the Court of Exchequer had no right afterwards to make any alteration therein. That if the respondents had been dissatisfied with that part of the decree, which directed the issue to be tried at Clonmell assizes, they ought to have appealed from it; and not have rested till a very short time before the issue was to have been tried there. But if the Court of Exchequer had any authority to vary the decree after its having been so affirmed, which it was contended they had not; yet there was no sufficient ground or reason laid before them, for directing the issue to be tried in the county of the city of Dublin, and by a jury of that county. But it surely ought to be tried in the county of Tipperary, where the conversation happened, which was the foundation of its being originally directed.

On the day appointed for hearing this appeal, counsel appeared and were heard for the appellant; but no counsel appearing on behalf of the respondents, it was ordered and adjudged, that the order complained of should be reversed; and that the issue before directed to be tried, should be tried by a jury of the county of Tipperary, at the next assizes to be held at Clonmell, in and for the said county. (MS. Jour. sub anno 1774. p. 647.)