Page:The English Reports v1 1900.pdf/753

rent, and the due performance of agreements; whereupon separate accounts were stated on the 9th of March 1742, and the appellant having insisted, that the respondent was indebted to him in £208 19s. 2d. for the lands of Ardlonan, a bond was then perfected by the respondent and Ecklin, and one Humphry Barry, for securing that sum to the appellant. That the appellant having also insisted, that Ecklin was indebted to him in £134 2s. 9d. for the lands of Marvelstown, two bonds were on the same day perfected by Ecklin [531] and the respondent, and one Murray, for securing the £114 2s. 9d. to the appellant: that is to say, one for £74 2s. 9d. and the other for £40. That the appellant on the same day perfected leases to the respondent and Ecklin, of the lands of Ardionan and Marvelstown pursuant to the agreement. That he afterwards accepted a surrender of the lease of Marvelstown, held by Ecklin. That in May 1744, the appellant distrained the respondent's goods; whereupon the respondent and Humphry Barry perfected a bond to the appellant for £400 conditioned for the return of the goods distrained, although the respondent was not at that time indebted to the appellant in half a year's rent. That the appellant insisted, that the lands of Ardlonan contained 208 acres and one rood, and claimed rent for the same according to that quantity, which was more than they really contained. That in order to heap more costs on the respondent and Ecklin, he caused nine judgments to be entered on the three bonds perfected by them and their co-obligors. That the respondent and Ecklin, besides the above mentioned bonds, did also, on the 9th of March 1742, give the appellant a note for £14 for securing fees, which he insisted upon for the appraisement of distresses taken by him from the respondent; and on the same day, they also gave the appellant another note for £30 which he insisted upon for securing the performance of an agreement to glaze windows and plaster walls of two houses, built by them on the lands of Ardlonan and Marvelstown. That at the time of the respondent's filing his bill, there was only £132 6s. 11d. due from him to the appellant for the lands of Ardlonan; which sum. together with £10 17s. 2d. for costs of an ejectment brought by the appellant for those lands, the respondent deposited with the proper officer of the court. The respondent therefore by his bill prayed, that the bond for £208 19s. 2d. might be delivered up to him, and satisfaction acknowledged, on his paying what should appear due, after deducting the several unreasonable articles which made part of the £208 19s. 2d. and that the notes for £30 and £14 might be cancelled, and that the respondent might be restored to the possession of the lands of Ardlonan and Dressoge, from which he was ejected and withheld by the appellant; that proper allowances might be made to him for a deficiency of acres, and for the value of part of a distress taken by the appellant in December 1744, which was not accounted for; and that the appellant might set forth what payments had been made to him, or his order, on account of the lands of Ardlonan, including the bond for rent; and that he might be obliged to give up the bond for £400 taken for return of distress, and come to a general account with the respondent.

The respondent deposited £143 4s. 1d. with the Usher of the Court, and thereupon obtained an injunction to restrain the appellant from proceeding at law.

The appellant by his answer admitted, that he had accepted a surrender of the lease of Marvelstown; that he had given the respondent receipts generally on account, for sums of money which he had paid to him; and that he did so, with an intention to ap-[532]-ply them to the account of rent due for Marvelstown, and made entries thereof in his books accordingly. He insisted, that £132 6s. 11d. with the £10 1s. 2d. costs of ejectment, which the respondent had lodged with the Usher, could not entitle him to be restored to the possession of the lands of Ardlonan and Dressoge; for that the sum sworn to be due in an affidavit made by the appellant ought to have been deposited, by which affidavit it appeared, that on the 29th of September 1744, there was £317 12s. 0½d. due for rent and arrears; so that the further sum of £111 0s. 1½d. to make up, £317 12s. 0½d. ought to have been lodged with the Usher, to entitle the respondent to any relief; but that in case the £102 4s. 4d. which the appellant had applied in discharge of the rents of Marvelstown, should be applied in discharge of the £317 12s. 0½d. then the money deposited by the respondent, would still be £8 15s. 9½d. short of the £317 12s. 0½d.

In April 1746, the appellant and respondent submitted their several disputes