Page:The English Reports v1 1900.pdf/751

The appellant, in the year 1683, borrowed of Thomas Bennett £100; and, for securing the repayment thereof, he executed a bond, with a warrant of attorney to confess judgment, and also a mortgage of some houses in Dublin; which mortgage, by an agreement between them, was to stand as a security, as well for the £100 then advanced, as for all such other sums of money, as Bennett, should advance or pay to the appellant, or for his use.

In the year 1689, the appellant left Dublin, and was for some time in England; but, previous to his departure, he intrusted the management of his trade of a brewer to Bennett, and impowered him also to receive the rents of his estate, and to collect in his debts, to the amount of £800 and upwards. But the appellant returning back in 1690, Bennett delivered up to him the possession of his brew-house, and all the utensils thereof (except a brass pan and two horses, which had been forcibly taken away by the Irish officers), and gave him a fair account of all matters depending between them; with which the appellant rested satisfied for some years.

But, in July 1694, he thought proper to exhibit his bill in the Court of Chancery in Ireland against Bennett, for a general account of all dealings and transactions; to which bill, the defendant having put in an answer, an order was, on the 30th of April 1695, made by consent, that all matters in difference between the parties should be referred to the arbitration of Richard Fenner and Henry Gower; and, if they could not agree, then to such umpire as they should appoint; and that the award or umpirage should be conclusive, and he made a decree of the Court, without liberty of excepting on either side.

The arbitrators made no award, but chose an umpire; who, on the 4th of June 1695, made his award, and thereby ordered Bennett to pay the appellant the sum of £200 0s. 2½d. at two different payments. The money being accordingly paid, the appellant, on the 20th of April 1696, executed to Bennett a general release, with an exception of what related to the farm of Insicore, the grazing of St. James's Fields, and a brass pan; and [529] thereupon Bennett delivered up all his vouchers to the appellant.

Under this award the appellant acquiesced for nine years; but on a suggestion, that the umpire had only under his consideration such matters as concerned the brewing trade, the appellant, in July 1704, filed a supplemental bill against Bennett, for an account of all dealings and transactions between them, except what related to the brewing trade. To this bill, the defendant pleaded the general release executed by the plaintiff; but omitting to make a proper averment therein, the plea, upon argument, was over-ruled for informality, and the defendant was obliged to answer over; the benefit of the plea was, however, reserved to him until the hearing of the cause. The defendant accordingly put in an answer, and thereby offered to account with the plaintiff ab initio, if he would repay the £200 and restore the vouchers which had been delivered up to him, on executing the release.

On the 2d of December 1707, the cause was hoard; when the Lord Chancellor declared, that as the award was executed, the money paid, and the release given, he saw no reason for re-examining the award, or unravelling matters so solemnly settled, and therefore ordered the supplemental bill to stand dismissed; but the plaintiff's counsel, accepting the offer made by the defendant in his answer, his Lordship decreed, that in case the plaintiff did not re-pay the said sum of £200