Page:The English Reports v1 1900.pdf/323

jury had given a privy verdict against him, suffered himself to be non-suit: And that notwithstand-[321]-ing this, respondent brought another action, and laid it in Shropshire, although Staffordshire were the adjacent county to Warwickshire, and the county wherein the cause of action arose, and the reputation of the parties and witnesses were only known; and that appellant had brought his bill in Chancery to discover the fraud, and to have the bond cancelled: To which bill respondent answering, many witnesses were examined on both sides, and the cause heard 1st May, 1702, when after opening the pleadings and nature of the evidence, the Lord Keeper did not think fit to enter into the merits, but directed a trial at law, in Shropshire, Whether this was Thomas Scott's deed or not, at the then next Shrewsbury assizes; and that preparations were accordingly made for trial there; but it appearing that attornies, and twenty or thirty persons of greater interest in that county, had been industriously soliciting for respondent, before the assizes; and that papers had been dispersed by him, to prepossess the people of that county, appellant was, for these reasons only, advised not to try the merits then; and therefore insisted that the bond was not specified according to the act of parliament for taxing money at interest; and respondent was thereupon non-suit: And that appellant, for these reasons, applied to have the trial in some other county, particularly in Staffordshire, where the credit of the parties and witnesses was best known, all or most of them living there; but not prevailing, the cause was again tried at Shrewsbury; upon which respondent had a verdict for the said pretended bond; and thereupon the cause was heard in Chancery, 8th May, 1703, and the bill dismissed with 20l. costs. Whereupon respondent took out execution for the whole penalty of 1000l. and levied the same; but that upon a re-hearing, 27th November, 1703, that matter was rectified, and only the principal sum of 200l. with interest, and the 20l. without interest, ordered to be paid the 27th day of January last; and if not then paid, the same to be paid in a month after, with the costs of the last trial, to be taxed by a Master of the Court. And that at the hearing and re-hearing, appellant (having liberty so to do) moved for another trial, because there had been a non-suit, on full evidence, without any objection made on the respondent's side to the trial; and considering the last trial at Shrewsbury fair, there had been only verdict [322] against verdict; and because Doleman's bond, and the letter of the 22d of August, 1699, which were very material evidence, were not allowed to be read, or used, though they had been allowed at the former trials, and though evidence was then offered of their being respondent's writing, and not Scott's, and although at the first trial the matter of that bond and letter was insisted upon by respondent himself; and further, because respondent's witnesses varied materially from the testimony they gave at the former trials, which the appellant was not admitted to prove, because the record of the postea of the non-suit in Warwickshire, offered in evidence to prove the former trial, was disallowed as evidence, which by the rules of law had usually been allowed in such cases; and finally, because the judge who tried the cause had signed a certificate, wherein, in respect of the nature and length of the evidence, and that appellant had offered to try the cause at bar, and if it went against him to pay respondent bar-costs, and if it went for him to expect no costs at all; he submitted it to the consideration of the Lord-Keeper, Whether the cause might not deserve a re-examination by a trial at bar? notwithstanding all which the Lord-Keeper did not think fit to order another trial, or to enter further into the merits of the cause, or admit the appellant to read any proofs, but dismissed the bill as aforesaid; which dismission appellant insisted ought to be reversed, and a new trial directed; because, as to the verdict at the first trial, it being set aside by the Court of Common Pleas, was never capable of being entered upon record, and so quite out of the case; and at the second trial respondent was non-suit upon full evidence; and that the third trial was not upon the merits, but went off only for want of a specification of the bond; and that the last trial was not upon the whole evidence, nor upon a full defence; and that in truth the many matters, evidence, and circumstances in this cause, were too long for the time allowed in a circuit at the assizes: And that the concern being of such value, near a thousand pound, and the reputation of the parties and witnesses being much at stake, appellant, insisted that another and final trial should be granted at bar, by a jury of the county where the parties and witnesses were best