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GEE v. LEWIS [1709]
COLLES.

not somuch as known, or in use when the model was made; nor were there any sash windows, or crown glass then in England.

[415] Die Jovis, 13 Martii, 1711 After hearing council upon this appeal, and the question put thereon, it was ordered and adjudged that the same should be dismissed, and the decrees, orders, and proceedings complained of affirmed. Lords Journ. vol. xix. p. 397.


[416]Case 80.—Richard Gee, Esq., and Phillippa his Wife, Executrix of John Beaumont, Esq., who was Colonel of the Regiment called the Princess Anne of Denmark,—Appellants; Edward Lewis, Administrator of James Pearse the Younger, the Right Honourable Edward, Earl of Jersey, and the Right Honourable Barbara, Countess of Jersey, his Wife, Daughter, Heir, and Administratrix of William Chiffince, Esq., and William Blackway, Executor of Elizabeth Pearse, who was the Relict and Executrix of James Pearse the Elder,—Respondents [1709].

[Mew's Dig. i. 67, 71.]

The appellants made this case: That Colonel John Beaumont, by articles, 12th February, 1688, appointed James Pearse the younger, agent to his regiment, who thereby covenanted to receive and pay the regiment's money, according to the Colonel's directions, and to keep his accounts clear and even; in consideration of his being allowed one man's pay out of every company, from the 1st of January, 1688; and that William Chiffince, Esq. and James Pearse his father, became bound to the Colonel for his due performance of the articles in a bond of 4000l. but that Pearse having misapplied the regiment's money, by advancing to several officers considerably more than their full pay, without the Colonel's directions, was turned out in August, 1689, and the Colonel put the bond in suit against his sureties, and exhibited a bill in the name of the Attorney General, to compel him to account in the Exchequer, according to the articles and the course of agency; and in his answer, he confessed 8641l. 7s. 10d. received, and submitted to account accordingly: And 4th February, 1690, it was decreed that proceedings on the bond should be stayed, and that Mr. Eden, then Deputy Remembrancer, should state the accounts ac-[417]-cording to the articles, and the course of agency; but that Pearse had only brought in a confused schedule of one hundred and forty general items, without any order of time or persons, amounting to 8163l. 7s. 7d. to discharge the said 8641l. 7s. 10d. and that thereupon the Colonel insisted that be should state the accounts for each company according to the articles, and the course of agency, which exclude all sums so over-paid to officers; and therefore Pearse declined the same, and died in 1695. And in Trinity term following Colonel Beaumont renewed proceedings on the bond, and obtained judgment; (Comb. 397.) which was affirmed in the Queen's Beach in Michaelmas term, 1698, but was stayed from taking out execution, by cross suits in the Exchequer, and died in 1701, before he could reap any benefit by that judgment, leaving appellant Phillippa his executrix; against whom respondents exhibited a bill in the Exchequer, to revive the former proceedings on the account, and to stay further proceedings at law: And, 22d June 1704, it was referred to Mr. Barker, Deputy Remembrancer, to state the account according to the articles, and course of agency, and to allow such vouchers as had been proved, or admitted by Colonel Beaumont, before Mr. Eden; and that several witnesses had proved that the constant and known course of agency was to make the pay of every company, and the payments issued by the agent, balance with the establishment, and not exceed it to any officer without the Colonel's express direction; but that respondents relying upon the general items formerly brought in by Pearse, and transcribed in a paper, signed by Mr. Eden, demanded allowance for 8163l. 7s. 7d. and further insisted upon a new schedule of six other items, which were never pretended to by Pearse; and

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