james Grahme, Esq Appellant, Francis Stamper, Respond. The Respondent's Case. To be heard the 23th of January, 1693. JAMES GRAHME, Esq Appellant, FRANCIS STAMPER, Respondent. The Appeal is to Reverse an Order of the High Court of Chancery, made the 18th of December, 1693. on Re-hearing of the Cause and the Respondents Plea put in, to the Appellants Bill. The RESPONDENT's CASE. THAT the Respondent is a Laceman, Trial in Michaelmas Term, 1689. and the Appellant for many Years past hath been the Respondent and his Partners Customer; and in the year, 1688. owed them 318 l. 18 s. 9 d. for Wares sold; and Appellant refusing to pay them, they brought their Action against him in the Common Pleas, which was tried in Michaelmas Term, 1689. before the late Lord Chief Justice Pollixfen; and the Appellant; in mitigation of Damages, gave in Evidence on the Trial, that part of the Goods (in question) were for Livery-Lace, delivered for the Use of the late King James his Hunt's, and to be paid for by him; but the Respondent, denied that he trusted King James, and proved he only trusted the Appellant, who promised Payment thereof. At which Trial, the Appellant produced his own Books of Accounts, and several Receipts and Acquittances given by the Respondent; and also the Respondent produced all his Shop-Books, which the Jury viewed and examined, and the Appellant also produced several of his own and King James his Servants, and divers other Witnesses were examined on both sides; and, after a long Trial, had a Verdict passed for the Respondent for 299 l. 18 s. 9 d. Damages [besides Costs.] Immediately after the Trial, In the same Michaelmas Term. the Appellant moved the Court of Common Pleas upon the Affidavits of himself and three other Persons, for a new Trial; but all the four Judges there were fully satisfied with the Verdict, and denied a new Trial. And the Appellant 〈◊〉 ●rought a Writ of Error returnable, in the King's Bench, which in Easter-Term, 1690. was argued, and Judgement was affirmed thereon for th●●●●●ondent; but just before the Court affirmed the Judgement, viz. The Appellant exhibited his Bill in Chancery, In Easter Term, 1690. generally, praying to be Relieved; alleging the same Matter and no oth●● 〈◊〉 he had before offered on on his Defence, at the Trial at Law; and had urged, to the Judges, when he moved for a new Trial (as appears by comparing the Bill in Chancery with the said Affidavits) whereto the Respondent pleaded the said Verdict and Judgements, and therein set forth the whole Series of the Proceed and Evidence, given at the Trial at Law, and the motion for a new Trial and that denied; and insisted, that after a Verdict upon full Evidence, and a new Trial denied, and Judgement in a Writ of Error, and entire Damages given the Chancery, ought not to Interpose, especially not new Matter being alleged in the Bill, and therefore prayed to be dismissed. The Plea was heard, Order of the 1st of July, 1690. but the Court ordered the Respondent to answer (saving the benefit of the Plea at the hearing of the Cause;) but the Respondent afterwards Petitioned to have the Plea Re-heard, which was Re heard on the 10th of December, 1690. and then the Court Ordered the Respondent to Answer the Appellants Bill, and to produce upon Oath, all his Books touching the Matters (in question) for the Appellant, and his Agents, to inspect and peruse, Order of the 10th of December, on re-hearing of the Plea. and that the Cause should not be further proceeded on till further Order; and the Respondent and his Partners fully answered the Appellants Bill, and set forth the whole Proceed at Law, and swore they only trusted the Appellant, and not King James; and that they relied only on the Appellants Promise of Payment, and insisted on their Verdict and Judgement recovered at Law, and denied the whole Equity of the Appellants Bill. So that the Appellant had the Respondents and his Partners Oaths and Denials, and his Bill required no more. That on the 20th of January following, Order, 20th of Jan. 1690. the Respondent moved the Court to dissolve the Injunction, but the Court Ordered the Respondent to produce the next day, before a Master upon Oath, all his Books touching the Matters (in question) for the Appellant or his Agents to look into (which was done accordingly) and the Injunction Ordered to be dissolved, nisi Causa. That on the 29th of January following, Order, 29th Jan. 1690. the Appellant shown Cause, and the Court Ordered, upon the Appellants bringing 326 l. into Court (being the Damages and Costs recovered at Law) the Appellants Bail at Law should be discharged, and continued the Injunction until the hearing of the Cause, and the 326 l. was accordingly paid into Court, which was afterwards moved for to be paid out of Court to the Respondents upon Security, but was denied. That the Cause proceeded, and the Appellant hath Examined in Chancery all the same Witnesses which he before had Examined at the Trial, and only two new Witnesses, viz. the Countess of Dorchester and her Woman, who might have been Examined at the Trial, and their Evidence is but circumstantial; and they say nothing as to the particular Goods in Question, but the Respondent only examined Witnesses to prove what Evidence was given at Law, and made no Proofs in Chancery as to the Merit of the Cause, because it would have been a waver of the said Plea (as advised.) The Cause was heard, before the last Lords Commissioners, and the Court declared it a Case of Consequence, yet delivered not their Opinions, but ordered to be attended with the Bill, Answer and the Record of the Postea, and then they would consider of the Matter: And afterwards the Court was moved to give Judgement; 'Cause Re-heard 1st June 1692. and, on the 1st of June following, the Court re-heard the Cause, but gave no final Judgement, only declared they had considered of the Case, which (as they alleged) appeared to be a Matter of great consequence, and proper to be stated upon the whole Plead, and ordered it to stand referred to Sir John Hoskins and Sir Adam Oteley, Knights, Two of the Masters of that Court, to look into and state the whole Matter of the Bill, Answer, Declaration and Plead at Law and in Chancery, and the Books of Account and Proofs taken, in the Cause, and to examine and see what Goods were delivered by the Respondent on the Appellants own Account, and what on the Public Account; and what were the Particulars of such Goods, and how Entered in the Respondents Books of Account; and the said Masters were to look into the Respondents Books of Account, and see how the Entries were made therein for any Goods delivered, and paid for in the years, 1685, 1686 and 1687. And Certify to the Court how they found the whole Matters; Order, 1st June, 1692. and after the Masters had made their Report therein, the Court would give their final Judgement in the Cause, and appoint a day for such purpose (but in the mean time the Injunction was continued.) The Respondent being advised that such the Proceed in the Cause, were contrary to Law and Equity; and being aggrieved therein, On the 25th of April, 1693. 25 April, 1693. 18 Decemb. Petitioned the Lord Keeper to Rehear the said Plea and Cause. That the Cause and Plea were Re-heard before the Lord Keeper and Mr. Baron powel, who declared their Opinions, That there was no Equity in the Appellants Bill, it being a proper Cause at Law, and received a Trial there, upon full Evidence on both sides, and no Fraud alleged by the Appellants Bill, they allowed the Plea, and dismissed the Appellants Bill, with Costs to the time only of the Respondents answering the Appellants Bill. Wherefore the Respondent humbly insists, to have the Fruit and Benefit of the Verdict and Judgements at Law, there being nothing but a plain Matter of Fact four Years since tried at Law, and not any Equity in the Appellants Bill, alleged; the Bill in Effect, being only to Arraign the Juries Verdict, and the Opinion of the four Judges; and the Respondent having positively sworn by his Answer, that he trusted the Appellant only; and not King James, and that the Appellant promised him Payment; so that if any Provision should be made for Payment of King James his Debt, the Respondent can have no benefit by it. The Respondent Stamper hath Sworn in his Answer, Nota. That the Appellant threatened he would spend 5000 l. and not leave himself worth a Groat, before he would pay this Debt, and hath kept this poor Tradesman above four years out of his Money since the Trial, which would have been very useful in his Trade, and caused him to spend above 500 l. so that the Respondent is almost undone. The Appellant, Nota. as Keeper of the Privy Purse to King James, might pay whom he pleased; and, as Master of his Buck-hounds, might have taken up such Livery Lace for the use of King James' Hunts, as the course was of the proper Tradesmen belonging to the Wardrobe, who must have accepted of King James' Payment; Ans. fol, 9 but the Respondent was a Tradesman at large, and only credited the Appellant (as he hath positively Sworn;) nor does it appear in the Cause, but that the Appellant may have paid himself. And therefore humbly hopes the Appeal shall be dismissed with Costs.