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Mr. William Collier, were examined as witnesses for appellant: And that appellant, 7th November, 1702, had his depositions from the examiner, whereby it appeared that before the agreement executed, appellant was urgent to have had the perusal of Evans's accounts, and was prevailed on to execute it upon Evans's express agreement, that appellant should have the accounts; and by reason of Evans's sickness, and his, and Price's importunity, the same was then so executed: which otherwise appellant would not have executed before the accounts settled: And that Collier, who was Evans's clerk, had proved that Evans, who was an attorney, had received satisfaction from other persons, of several of the sums charged upon the appellant in the same accounts, and that the accounts were made up without entries in any books, and without vouchers to justify them: And that Collier, was directed by his master to insert in the accounts all sums which Evans recollected ought to have been paid to any of the creditors of Sir William, though Evans had not paid the same, or any part thereof; and that 21st November, 1702, after publication past, and the depositions delivered out upon suggestion that the said affidavit was not filed until after the witnesses were examined, and that the respondents clerk was not served with the order of the 3d of November until the 4th, though that was as soon as the order could be got drawn, yet the said order of the 3d of November was by order discharged, and appellant's depositions supprest; and Collier and Price ordered to attend at the hearing, to be examined as the Court should direct; and appellant could not prevail to have that order varied; And that 7th December, 1702, [301] the cause came to be heard, and Price and Collier attended, but were not admitted to be examined, Viva voce, whereby appellant was utterly debarred of their testimony; and it was then decreed, that the effect of the writing executed by appellant should be performed, and the 1392l. then in Court, applyed to pay plaintiffs so far as the same would extend, and that appellant should pay the residue out of the first money he should receive of his testator's personal estate, and an account was decreed to be taken and appellant was also decreed to pay respondent the money due on the said bond for 1500l. so far as he had assets, so that respondents were in the first place to be paid upwards of 3000l. out of the personal estate of Sir William Williams; and appellant complained that he was aggrieved by the orders of the 21st November and the 7th December, because the affidavit whereon the order of the 2d November, 1702, was founded, was filed before 21st November, 1702, and was to all intents and purposes as effectual as if filed 3d of November, 1702, and because, before Price and Collier were examined, they were severally produced, and shewed in person at the seat of respondents clerk, and the usual notice in writing left with him; and because before either of the witnesses were discharged from the office, respondents clerk had personal notice of the order of the 3d of November on Wednesday the 4th, two days before publication was to pass, and might have cross-examined them, and, had they been in any sort aggrieved, might have applied to the Court, and so no inconvenience to respondents, but that by discharging the order of the 3d of November, and suppressing the depositions, there the greatest inconvenience to appellant; who was forced to contest with his adversary, and deprived of his evidence, and this without any default of his, or material neglect of his clerk: And appellant complained further that by the decree 1392l. of testators estate that was to be applied towards payment of 700l. and upwards, pretended to be paid to creditors, and 800l. and upwards to an attorney for law charges, without examining the same, or ordering the accounts and vouchers to be delivered over to the appellant, the surviving executor, to enable him to account with such persons as had demands from testator's estate: And that no decree ought to be made touching the 1500l. pretended to be due on the bond to Evans, for that respondent, his executrix, had remedy for that debt at common law, [302] where the appellant might have benefit of the administration of his testator's estate; and that said bond was not within the agreement whereon the decree was grounded; and by respondents own shewing the intention of the testator, was that his debts of speciality should be paid out of his real, and not out of his personal estate. (J. Hooke. P. Crawford.)

The respondents on the other hand shewed, that Sir William Williams had, by his will, devised his real estate of 2500l. per annum to Sir Bouchier Wrey and