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<DATE>06-27-08</DATE>
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<NAME>Mona Logarbo</NAME>
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<HEAD>The Ca&s;e of S^r John Champante, K^t Re&s;pond.</HEAD>
<HEAD TYPE="sub">TO THE APPEAL of Sir <HI>Robert Da&s;hwood,</HI> Knight and Baronet, Sir <HI>Samuel Da&s;hwood</HI> Kt. <HI>John Perry</HI> and <HI>Edward Noel,</HI> &s;urviving Executors of <HI>George Da&s;hwood,</HI> <ABBR>E&s;q</ABBR> Decea&s;ed Appellants.</HEAD>
<P><NOTE PLACE="marg">4 <HI>Aug.</HI> 1671.</NOTE><HI>RICHARD</HI> Earl of <HI>Ranelagh,</HI> and Eight others (whereof <HI>George Da&s;hwood</HI> the Appellant's Te&s;tator was one) by Indenture under the Great Seal of <HI>England,</HI> contracted and became Undertakers with King <HI>Charles</HI> the Second to receive the whole Revenue of <HI>Ireland,</HI> and to pay the whole Charge of that King|dom contained in the Civil and Military Li&s;ts for five Years, ending the 26th of <HI>December,</HI> 1675; and had two Years time afterwards for Collecting the Arrears, and making good the Payments grown due within the five Years.</P>
<P><NOTE PLACE="marg">23 <HI>Sept.</HI> 71.</NOTE>A Commi&s;&s;ion under the Great Seal of <HI>England,</HI> i&s;&s;ued to the &s;aid Undertakers, and in their ab&s;ence in <HI>Ireland,</HI> to others therein by them named to be their Repre&s;entatives; wherein Mr. <HI>Edward Roberts</HI> was named by the &s;aid <HI>George Da&s;hwood,</HI> to be his Repre&s;entative, and to act on his behalf.</P>
<P><NOTE PLACE="marg">8 <HI>Nov.</HI>71.</NOTE>In Virtue of which Commi&s;&s;ion the now Re&s;pondent was duly con&s;tituted Deputy-Receiver-General, Vice-Trea&s;urer, and Trea&s;urer at War, who entred into Bonds of 10000 <HI>l.</HI> penalty, for the execution of the &s;aid Places and Performance of his &s;aid Tru&s;t, which he all along faithfully performed.</P>
<P>But the &s;aid Revenue proving defective, or at lea&s;t not coming in fa&s;t enough to an&s;wer the Ends and U&s;es of the &s;aid Undertaking; and the Undertakers being pre&s;&s;ed to make payments according to their Contract, the &s;aid Undertakers and their Repre&s;entatives, or &s;o many of them as were requi&s;ite in that behalf, to comply therewith, did by &s;everal Orders and Letters importune and direct the Re&s;pondent to Advance and Lend, and to procure from others what Money he could, upon the credit, and towards the &s;upport of the Undertaking, and Undertakers, under promi&s;e of being repaid and indempnified, and for which there was to be an allowance of 10 <HI>per Cent.</HI> (the u&s;ual Intere&s;t in <HI>Ireland</HI>) be&s;ides Gratuity and Commi&s;&s;ion-Money: Many, if not all of which Letters and Orders were &s;igned by <HI>George Da&s;h|wood,</HI> or the &s;aid <HI>Roberts</HI> his Repre&s;entative.</P>
<P>Pur&s;uant whereunto, in order to &s;upport and pre&s;erve the Credit of the &s;aid Undertakers and Undertaking, the Re&s;pondent did lend and advance great Sums of his own, and by direction of the Undertakers in <HI>England,</HI> did become bound to Sir <HI>John James,</HI> and others, re&s;iding in <HI>England,</HI> then unknown to the Re&s;pondent, for great Sums of Money which were procured by the Undertakers; all which Money &s;o lent and procured by the Re&s;pondent, were duly applied to the U&s;es of the Underta|king, and the Undertakers for &s;o much were di&s;charged again&s;t the King upon their Contract.</P>
<P>Two &s;everal Accounts, the one ending <HI>Chri&s;tmas</HI> 72, the other at <HI>Chri&s;tmas</HI> 73, between the Undertakers and the Re&s;pondent, touching the Undertaking, were made up, &s;tated, and examined by the &s;aid <HI>Roberts,</HI> and others employed by the Undertakers for that purpo&s;e, and duly &s;igned and pa&s;&s;ed, upon the foot of which la&s;t Account there was a ballance of 5622 <HI>l.</HI> due to the Re&s;pondent, which together with the other Moneys afterwards lent, and &s;ecured by the Re&s;pondent for the U&s;e and Credit of the Undertakers and Undertaking (be&s;ides what the Undertaking produced) did amount to above 24000 <HI>l.</HI> principal Money (be&s;ides Intere&s;t, Commi&s;&s;ion-Money, &amp; <HI>Gratuity</HI>).</P>
<P>To obtain &s;atisfaction wherein, and to have his Accounts &s;etled, the Re&s;pondent u&s;ed great Importunities with the Undertakers, who all along owned the great &s;er|vice and kindne&s;s he had done them, by crediting them and the Undertaking &s;o far, and promi&s;ed to give Directions for &s;tating and &s;etling Accounts, and to take effe|ctual care for his payment and &s;atisfaction. And in order thereunto about <HI>June</HI> 1677, Sir <HI>James Hayes</HI> one of the Undertakers went into <HI>Ireland;</HI> and he with <HI>John Stepny,</HI> <ABBR>E&s;q</ABBR> another Undertaker, and <HI>John Hayes</HI> Brother of Sir <HI>James,</HI> and intere&s;&s;ed in the Undertaking, having &s;ufficient power, as they pretended, and as the Re&s;pondent believes, from all the Undertakers, to &s;ettle and conclude the Affairs of the Undertaking (they being the only per&s;ons then acting therein), in <HI>Augu&s;t</HI> 77, impowered the &s;aid <HI>Roberts</HI> by an In&s;trument under their hands, to make up, &s;tate, and certifie the Re&s;pondent's Accounts, from the 25. of <HI>Decemb.</HI> 73, to the 24th of <HI>June</HI> 77. In pur&s;uance whereof the &s;aid Mr. <HI>Roberts,</HI> (who was the &s;ame per&s;on imployed and relied upon by the Undertakers to make up the former Accounts) with the a&s;&s;i&s;tance of the Secretary of the Undertaking, and two of their Clerks, &s;pent &s;everal Months in &s;tating the Re&s;pondent's Accounts, and comparing them with the Vouchers, which ju&s;tified the &s;aid Accounts in all things; and after the &s;tricte&s;t &s;crutiny imaginable, two di&s;tinct Accounts were made and clo&s;ed in the &s;ame method as the two former Accounts; the one commencing the 25th of <HI>Decemb.</HI> 73. and ending 25 <HI>Decemb.</HI> 74, and the other going on from thence to 24 <HI>June</HI> 77, upon the foot of which la&s;t Account there remained a Ballance for principal Money, (not reckoning Intere&s;t, Commi&s;&s;ion-Money, nor Gratuity), the Sum of 36454 <HI>l.</HI> 8 <HI>s.</HI> 8 <HI>d</HI> &frac14;: And thereupon all the Re&s;pondent's Vouchers were delivered up, and Ab&s;tracts thereof, and of the Accounts were delivered to the Undertakers, or their Repre&s;enta|tives.</P>
<P><NOTE PLACE="marg">12295 <HI>l.</HI></NOTE>But the Sum of 12295 <HI>l.</HI> (which the Re&s;pondent had received from Sir <HI>John Jame</HI>'s Agent as borrowed Money, and as &s;uch had given Bond, and became lyable for the &s;ame, by the direction of the Undertakers) not appearing at the time of making up the &s;aid Accounts, but afterwards to be Money due to the Undertaking, the &s;aid <HI>Edward Roberts</HI> thought it proper to enter a Memorandum thereof in the Accounts, which cau&s;ed a change and tran&s;cribing of &s;ome of the leaves, but no alteration of any Sum, Article, Figure, or other thing in the &s;aid Accounts, &s;ave the entry of the &s;aid Memorandum, which reduced the ballance to 24159 <HI>l.</HI> 8 <HI>s.</HI> 8 <HI>d</HI> &frac14; as is fully in proof in the Cau&s;e, and hath been cleared to the &s;atisfaction of the Courts of <HI>Exchequer,</HI> both in <HI>England</HI> and <HI>Ireland,</HI> at the re&s;pective Hearings of the cau&s;e, notwith&s;tanding any &s;eeming Reflections upon the Re&s;pond<GAP DESC="illegible" REASON="damage" EXTENT="1 letter">nt concerning the &s;ame. It being evident, that the Re&s;pondent had not, nor could have any Advantage <UNCLEAR>if</UNCLEAR> the &s;aid Memorandum had not been incert<GAP DESC="illegible" REASON="in crease" EXTENT="1 letter">d, for <GAP DESC="illegible" REASON="in crease" EXTENT="1 span"> obliged to pay the 12295 <HI>l.</HI> as above; and when it was <GAP DESC="illegible" REASON="damage" EXTENT="5 letters">vered to be paid in <HI>England,</HI> and &s;o not to be allowed again to the &s;aid Sir <HI>John James</HI> in <HI>Ireland,</HI> he had his Security delivered up, which made the matter equal to this Re&s;pondent.</P>
<P><NOTE PLACE="marg"><HI>Nov.</HI> 1678.</NOTE>The Re&s;pondent (notwith&s;tanding many promi&s;es) not being able to get the Money due to him, was forced to exhibit his Bill for that purpo&s;e, in the Exchequer in <HI>Ireland,</HI> again&s;t the &s;aid Undertakers and their Repre&s;entatives, &s;ome of which being brought to hearing, and the Bill again&s;t others taken <HI>pro Confe&s;&s;o,</HI> a Decree was made for the now Re&s;pondent's recovering the &s;aid 24159 <HI>l.</HI> 8 <HI>s.</HI> 8 <HI>d.</HI> &frac14;, again&s;t the then De&s;endants, with his Co&s;ts (no mention being made of Intere&s;t, Commi&s;&s;ion-Money, or Gratuity, but that left to be recovered afterwards). But the Earl of <HI>Ranelagh</HI> exhibiting a Cro&s;s-bill again&s;t the now Re&s;pondent, procured a Re-hearing of the Cau&s;e, which being had, and taking up &s;ix &s;everal days, in <HI>June</HI> 1684. The &s;aid Court of Exchequer approved the Authority given to <HI>Roberts,</HI> and the Accounts by him made, the Undertakers and their Repre&s;entatives having free acce&s;s to all the now Re&s;pondent's Books, and to all the Offices of Cheque in that Kingdom, and having in their Cu&s;tody the Re&s;pondent's Vouchers delivered up, with &s;everal other particular Accounts of his daily Receipts and Payments, the &s;aid Court upon full and mature deliberation of the whole matter, was plea&s;ed to affirm the former Decree, as well again&s;t the &s;aid Earl, as other the Defendents, for paying to the Re&s;pon|dent the &s;aid 24159 <HI>l.</HI> 8. <HI>s.</HI> 8. <HI>d.</HI> &frac14;.</P>
<P><NOTE PLACE="marg"><HI>May</HI> 1685.</NOTE>That Decree proving in a great mea&s;ure ineffectual in <HI>Ireland,</HI> in regard the Appellant's Te&s;tator, (upon who&s;e credit and ability the Re&s;pondent mainly de|pended in his whole proceedings) and &s;ome other of the Undertakers having no E&s;tates nor Effects there, but living in <HI>England,</HI> the now Re&s;pondent was forced to ex|hibit his <HI>Engli&s;h</HI> Bill in the Exchequer in <HI>England,</HI> in <HI>Ea&s;ter</HI>-Term 1685, again&s;t the &s;urviving Undertakers, and the Executors and Admini&s;trators of tho&s;e deceas'd, for obtaining what was due to him; being at that time about 56000 <HI>l.</HI> for Principal, Intere&s;t, Commi&s;&s;ion-Money, and Gratuity (and no part thereof &s;ince paid). The Defendants to the &s;aid Bill (whereof the now Appellants were &s;ome) u&s;ed &s;o great delay, that it was four years before the Cau&s;e could be brought to an hearing. And for further delay a Cro&s;s bill was exhibited by the now Appellants, and other the Defendants in the &s;ame Term, the Re&s;pondents Cau&s;e &s;tood for hearing, with de&s;ign to put off the hearing of the Re&s;pondent's Cau&s;e; however it came to hearing in <HI>Ea&s;ter</HI>-Term 1689. And then, and in <HI>Trinity</HI>-Term following, it took up eight days; and the Court did decree the two fir&s;t Accounts made up by the &s;aid Mr. <HI>Roberts</HI> to be final and conclu&s;ive. And as to the two la&s;t Accounts, made up till <HI>Mid&s;ummer</HI> 1677, the Court con&s;idering the impo&s;&s;ibility the Re&s;pondent lay under, by rea&s;on of the length of time, and the pre&s;ent &s;tate of <HI>Ireland,</HI> and delivery up of his Vouchers to come to a new Account for the &s;ame, did not think fit to adjudge them conclu&s;ive, nor to reject or di&s;allow of the &s;ame as &s;tated and clo&s;ed Accounts; but in ca&s;e the Defendants had any material Objections to offer again&s;t the particulars thereof, it was referred to the two Auditors of the Impre&s;ts to in&s;pect and examine the &s;ame; and al&s;o whether the &s;ame were made up and &s;tated in the method of the two former Accounts, and wherein they did agree or differ from the &s;ame; and decreed the Re&s;pondent to be examined upon Interrogatories, and the Auditors to re&s;ort to the Court for Directions, in, ca&s;e of difficulty.</P>
<P>That &s;ome of the Defendants pretending they could &s;hew Rea&s;ons why they &s;hould be exempted out of the &s;aid Decree, from going to an account before the &s;aid Au|ditors, there was a Clau&s;e in the &s;aid Decree, <HI>viz.</HI> That &s;uch of the Defendants as &s;ought to be exempted from accounting, &s;hould bring their Ca&s;e to the Barons to con&s;ider of; whereupon (among&s;t others) the now Appellant's, who&s;e Te&s;tator lived till the year 1682, brought in their Ca&s;e, pretending their Te&s;tator in <HI>May,</HI> 1674, a&s;&s;igned his Intere&s;t in the Undertaking to the &s;aid Sir <HI>James Hayes,</HI> and pretended that the Re&s;pondent had notice thereof; and that therefore they ought not to be accountable from that time, or at lea&s;t longer than <HI>Chri&s;tmas</HI> 1675, when the time of the Undertaking ended.</P>
<P>Upon hearing of which, and upon full debate of the matter, the Appellants not having proved any Notice, (though they had opportunities for that purpo&s;e) the Court did (as is humbly conceived was ju&s;t) declare their Opinion, and &s;o ordered that the Appellants &s;hould be included in the whole Account, they having not fi|led any Interrogatories pur&s;uant to the Decretal Order, though the Re&s;pondent all along offered him&s;elf to be examined.</P>
<P>Again&s;t which &s;aid Orders the &s;aid Appellants have appealed to the mo&s;t Honourable Hou&s;e of Lords, under pretence as if the Court of Exchequer refu&s;ed to hear their Witne&s;&s;e&s;, <HI>viva voce,</HI> to prove Notice to the Re&s;pondents of their Te&s;tators A&s;&s;ignmment. When as in truth none &s;uch were ever produced, and it was in i&s;&s;ue in the Cau&s;e, and <HI>Roberts, Da&s;hwoods</HI> Repre&s;entative examined upon Interrogatories, as to Notice of the A&s;&s;ignment, and all opportunities offered for &s;uch proof, if it could have been made out, but it was and is evident that none was; and Mr. <HI>Da&s;hwood</HI> wrote &s;everal Letters, which were prov'd by &s;everal Witne&s;&s;es, and his Repre&s;entative acted in <HI>Ireland</HI> as concerned in the Undertaking, after the time of the pretended A&s;&s;ignment, and during the two Years after the Undertaking ended, which by their In|denture with His Maje&s;ty, they had to collect their Arrears in, and to make good the Payments grown due within the five years.</P>
<P>As to pa&s;&s;ing the Orders complained of, they were done in u&s;ual method, and the Appellants had time and opportunity to incert what of the An&s;wers they plea&s;ed, the draught of the Decretal Order being left with their Clerk in Court and Soliciter, a Month before it was entred.</P>
<P>And as to the incerting the pretended Allegations of Council into the la&s;t Orders, they being meer Sugge&s;tions, and no Memorial taken of them by the Regi&s;ter, the Order was drawn up without them, as is conceived was both ju&s;t and u&s;ual. Wherefore, and for that the Appellant's pretences are &s;ome of them vain and ground|le&s;s, others utterly untrue, and all of them made only for delay, to keep the Re&s;pondent from recovering &s;o great a Sum of Money ju&s;tly due to him, his being kept out of which for above twelve Years la&s;t pa&s;t, hath reduced him and his Family to great &s;traits, and all further delays will tend to his utter and inevitable Ruine.</P>
<P>It is therefore mo&s;t humbly prayed, that the Appeal may be di&s;mi&s;&s;ed, and the Re&s;pondent left to proceed and Pro&s;ecute upon the &s;aid Orders; and Decrees.</P>
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