Page:The English Reports v1 1900.pdf/746

and taken into custody, the trial came on upon the 1st of September 1750, when the witnesses for the prosecution not being able to recollect some circumstances touching the payment of the purchase-money, at the time of executing the conveyances, and there being also some trifling variance in their evidence, the defendants were acquitted.

Pending this prosecution, the appellant Bateman filed a bill in the Court of Exchequer in Ireland, against the respondent Hugh and his two sons, and against the several indorsees of the notes, for a discovery of several matters concerning them, and for an injunction to stay proceedings at law upon them, and that they might be brought into court and lacerated. And the respondents the Conways having neglected to put in any answer to this bill, several processes of contempt issued against them.

In consequence of the Conways being acquitted of the criminal prosecution, the appellant Bateman found his character very severely handled, for having attempted to defraud a poor distressed man of his right; and therefore he thought it necessary to take some steps in order to his own vindication. For this purpose, he, on the 4th of September 1750, applied to the other appellant Yielding to be concerned for him as his attorney; who being then a stranger to the matter, and not knowing any thing of the suit depending in the Exchequer, desired to see one of the appellant Bateman's briefs which had been given to his counsel upon the trial of the indictment; to which Bateman replied, that Mr. Enraght, his former attorney, had got all his briefs, and was then out of town; but Thomas Studert, esq. happening to be present at this conversation, thereupon observed, that he had heard at [521] the house of Mr. Kean, who was attorney for the Conways, and with whom he had dined the day before, that after the trial was over, the appellant Bateman's briefs bad been seen lying about the hall, or court-house, and that he Kean had taken up one of them out of curiosity and brought it home to read, and had laid it by in his window for that purpose; whereupon Mr. Studert being desired by the appellant Yielding, to go to Kean's house and ask for that brief, he went accordingly, and received from Henry Napper, son-in-law of Kean, a brief which he understood and imagined was one of Bateman's briefs, and soon after delivered the same to Anthony Stoughton, esq. who, in the presence and by the order of the appellant Bateman, delivered it to Mr. Yielding as his attorney.

The appellant Yielding, on seeing this brief, discovered, that instead of being one of Mr. Bateman's briefs, it was one of the briefs which the Conways had prepared for their counsel, and which had been accordingly used upon the trial; but that prosecution being over, and it having been rumoured that the Conways admitted the payment of the purchase-money, but alledged that the same had afterwards been repaid to the appellant Bateman, who had given the notes in question for it; Mr. Yielding was desirous of knowing what had been stated in the brief relative to that matter. And for this purpose he caused the brief to be read, and therein found it stated as part of the Conways case, "that Mr. Bateman had paid the entire purchase-money, but that Hugh Conway had in some days after repaid the same to him."

The appellants immediately upon this discovery, made it as public as they could, in order to wipe off some of the aspersions which had been thrown out upon the appellant Bateman's character; and soon afterwards, an application was made to Yielding by Mr. Kean, as the attorney concerned for the Conways, to return him this brief, which. Mr. Yielding declared he was ready to do, upon receiving an order from the appellant Bateman for that purpose; but Mr. Kean did not think fit to apply to Mr. Bateman for any such order, although he was told that Bateman was then in the house.

The appellant Bateman being advised to dismiss his bill in the Court of Exchequer, and file a new one for the same purpose, but with some necessary alterations and amendments in the Court of Chancery, he accordingly filed such new bill, and on the 12th of February 1750, moved for liberty to dismiss his said bill in the Court of Exchequer with costs, and obtained an order accordingly, as a matter of course: but on the 19th of the same month, the respondents, although they were in contempt for not answering this bill, obtained an order discharging the said order of dismission. And on being served with process to appear to the