Page:The English Reports v1 1900.pdf/243

that De la Chambre and his partners soon after exhibited their bill against appellant, insisting, that they, and not the respondent, made up and provided the cloaks and suits, and demanding of appellant the 1425l. assigned to them by respondent: And that this cause was heard the 27th June, 1700, before the Master of the Rolls; who decreed appellant to pay the whole 1425l. to respondent, with reasonable costs; and respondent to indemnify appellant against De la Chambre and his partners: And that from this decree, appellant appealed to the Lord Keeper; and although it appeared by depositions of seven witnesses, that the cloaks and suits in question were not worth above half 1425l. and that De la Chambre and his partners, and not Cardy, had made up and provided them, and that Cardy had assigned to them the whole 1425l. and that they had sued appellant in this court for the same; and that Cardy was a bankrupt, and not able to indemnify appellant; and that the cloaks and suits, at the prices agreed on, come 12l. short of 1425l. and though appellant prayed an issue at law, to try the value of the cloaks and suits in question, and that Cardy might there produce the patterns sealed with the appellant's seal, his Lordship denied such trial, and affirmed the former decree, and decreed appellant to pay the whole 1425l. to respondent Cardy, on the 25th of same month; and caused the word (reasonable) to be struck out of the said decree with respect to costs. (Richard Turner. D. Deane.)

The respondent, in affirmance of the decrees, stated that appellant had by the articles covenanted to pay respondent the 1425l. out of the off-reckonings of the regiment; and that for performance thereof, they had thereby bound themselves to each other in 3000l. penalty, and that respondent had provided the cloaks and suits in every respect answerable to, or better than the patterns, and that the cloth of which they were made [155] was viewed, and approved of by John Jones, a person appointed by appellant himself; but that some few of the cloaks and suits were, by Jones's order, for haste cut out, and made before the cloth was pressed, which might make them seem coarser than the rest, though they were all of the same goodness, and that all were viewed by Jones before they were packed up, and none but such as he approved of sent to Flanders, where they were received and made use of; and appellant himself so well approved them, that he, treated with respondent for his cloathing the regiment again for the year 1697, and the respondent and he differed only about 25l. for the hautboys cloaths: And that these cloaks and suits having been at respondent's request provided by Lawrence De la Chambre, Thomas Woods, and Bostock Johnson, respondent assigned to them his interest in the 1425l. but payment having been refused at Lord Ranelagh's office, because appellant had received it, they threatened to sue respondent for it; and the assignment thus proving ineffectual, respondent expected appellant would have paid him; but that he, to avoid or delay payment, exhibited his bill in Chancery, on pretence of the mistake of 12l. and that the cloaks and suits, though long since worn out, were not answerable to the patterns, and not worth within 500l. of the money agreed on, and obtained an injunction against respondent's proceedings at law, on giving security to abide the decree. And that respondent had denied the whole equity, and witnesses were examined on both sides, and the cause beard before the master of the rolls, who on proof that appellant had received the money, so by him assigned to respondent, decreed him to pay respondent the 1425l. with reasonable costs, to be taxed by Sir John Franklyn, one of the masters, or in default thereof, that respondent might put the recognizance in suit, and that on payment thereof respondent should indemnify appellant against De la Chambre, Woods and Johnson: And that afterwards, on appellant's petition, the cause was re-heard before the Master of the Rolls, who, 24th October, 1700, affirmed his former decree: And then appellant appealed to the Lord Keeper, who, 1st March, 1700, on a full hearing, also affirmed the said decree: And that appellant now further appealed to the Lords, on pretence that he ought to have had a trial at law, to try the value of the cloaks and suits; but respondent insist-[156]-ed it would he unreasonable at this distance of time, to grant such trial after a positive agreement in writing under hand and seal, for the price and sum to be paid; and after full proof that the cloaks and suits were answerable to the patterns, and viewed, accepted, and approved of by appellant's own appointee, and after they had been long worn out, and more especially after appellant had received the money, and had kept the