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commission to be signed by his late Majesty King William for appellant in respondent's room, dated at Gemblours in Flanders, 3d July, 96, and on its being returned into the Duke of Shrewsbury's office, (then one of the principal secretaries of state) respondent gave appellant notice that the commission lay there ready for him; and that after this, and not before, the bond and warrant of attorney were delivered to respondent by Milburne; but that appellant thought fit to disappear, [269] and neglected to take out his commission, or perform his duty required by the said commission; and that thereupon it was some months after granted to one Bradbury, a lieutenant in the same company: And that after appellant had made respondent lose his employment, instead of paying the 600l. he brought his bill in Chancery to be relieved against the agreement, untruly pretending he was overcome with wine, and not in his senses when the band and articles were executed; and that although he found himself tricked into a very foolish agreement, yet he was resolved quietly to undergo the punishment of his folly, if respondent would have performed his part of the agreement, and pretended he had not so done; and contended that offices in the army were not saleable: And that appellant had made no proof of his pretended equity, but that respondent had fully proved the agreement, and that he had performed all required of him; and that the Court was of opinion on the hearing, that appellant ought not to be relieved any further than against the penalty of the bond and judgment, and therefore decreed appellant to pay respondent the principal and interest due upon the bond upon service of the decree; and that in case appellant paid the money upon service of the order, he was to be excused from costs, but in default thereof was to pay respondent his costs: Which decree respondent insisted was just and equitable, and ought to be affirmed. (Henry Poley.)
Die Sabbati, 20 Februarii, 1702. After bearing council upon this appeal, it was adjudged by the Lords that the same should be dismissed, and the order and decree complained of affirmed.—Lords Journ. vol. xvii. p. 298. (Prec. Ch. 199. Vin. iv. 406. xvi. 129.)
[270]Case 55.—Thomas, Lord Wharton,—Appellant; Robert Squire, Esq.—Respondent [1702].
[Mew's Dig. i. 334.]
The appeal was from the following order of the Court of Exchequer, dated 15th July, 1701.
Ebor: WHEREAS on the 26th of February last, upon motion on the part of Thomas, Lord Wharton, it was ordered by the Court, that a commission issued out of this Court in the 15th year of the reign of King James the first, together with six several articles of instruction, and eight several schedules thereto annexed, purporting a boundary and survey of the honour of Richmond, and the lordship of Middleham, in the county of York, taken by virtue of said commission by Sir Timothy Hutton, and Sir Talboth Bowes, Knights, and other commissioners, and dated at Richmond 19th October, 1618, should be left in the bands of Mr. Thomson, one of the attornies, but should not be received as a record, or filed, nor any use made thereof, or of the inrollment thereof, until further order; now, on motion of Mr. Turner, on behalf of Sir William Robinson, Baronet, and others, praying that the said order might be set aside, and that the said commission, articles, and survey, might be allowed of as a record, and filed accordingly: For that it appeared by an endorsement, written in the hand of the Court on the outside of the last of said schedules, that the same were delivered into this Court 28th November, in the 16th year of the reign of King James, by the hands of Roger Kenion, Gent. one of the commissioners in the said commission named, and that the said commission survey likewise appeared to have been returned and filed in this Court, for that in an order or decree made 18th June, 19. Jac. touching the tenants of the honour of Richmond and lordship of Middleham, it was recited that upon survey made in June, July, August, September, and October, 1618, by Sir Timothy Hutton
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