1803.

DREW

υ.

POWER.

these facts; that it was part of the consideration in the mind of Power as well as of Drew that these leases should be given in consequence of the advance of money by Power, and that they were the purchase of that advance; that three of these witnesses at least might certainly have been crossexamined by Power, and probably two others; that he must have known the nature of the evidence they were to give, and that he himself has not brought forward any witness to the fact that there was a valuation put on the lands by an indifferent person, so that at this moment (unless Hastings be the person alluded to in the answer) there is a man who might have been brought forward for the purpose, and is not brought forward; there is no reason to send this case to a jury, where the only purpose of sending it would be to give an opportunity of cross-examination. There is sufficient to satisfy the conscience of the court that these leases ought not to stand.

Reg. Lib. xlix. 138. "Declare that the sum of 1,416. "14s. 9d. for which the bond bearing date the 30th day of

66

June 1791 in the pleadings mentioned was given by the "plaintiff to the defendant, ought to be considered as the "balance of a settled account between the parties which ought not to be unravelled or opened, except as the same

may be falsified as herein directed; but declare that it does "not appear to the court that the papers referred to in the 46 depositions of Peter Griffin, and marked C. and D. ought not to be considered as containing the accounts so settled "between the said parties, and let the master inquire "what accounts were actually settled between the parties "on 16th of Nov. 1790, when the bond for 1,008/. 15s. "was given by the plaintiff to the defendant, and on the "30th of June 1791, when the said bond for 1,416. 14s. 9d. "was given by the plaintiff to the defendant, or whether

"such accounts or either of them are or is forth-coming, or "what has become thereof respectively; and let the master "inquire and report whether the whole of said sum of "1,416. 14s. 9d. was justly and fairly due from the plaintiff "at the date of such bond either for money before paid or "advanced by the plaintiff to or for the use of the de"fendant, or for interest of money so paid or advanced, or "for money agreed to be paid by defendant for plaintiff, "and afterwards actually advanced by defendant, and for "interest of such money; and let the master be at liberty 66 so far to falsify the account on which such balance of "1,416/. 14s. 9d. was struck, and in case any sum which "defendant agreed to pay to or for the use of the plaintiff, "and which constituted part of the said sum of 1,416/. 14s. "9d. shall appear to the master not to have been actually 66 paid or not paid to the full extent, or in case it shall appear to the master that there was any overcharge of "interest in stating the said sum of 1,416. 14s. 9d. "to be due from the plaintiff to the defendant at the "date of the said bond; let the master in taking the

account of the principal money and interest due on "foot of such bond as herein after directed, deduct "from the said principal sum of 1,416. 14s. 9d. so "much as ought to be deducted therefrom, and compute in66 terest on the difference only; and let the master take an account accordingly of the principal and interest due on "such bond after the deduction aforesaid, if he shall find "that any such deduction ought to be made; and let the 66 master also take an account between plaintiff and defend(6 ant on the foot of all dealings and transactions between "them subsequent to the date of said bond; and let “him also take an account of the judgment debts due from "the plaintiff to Samuel Dixon, W. W. Moony and Thos. "Bourchier respectively, and of the principal money and in"terest due thereon respectively; and declare that the leases

1803.

DREW

V.

POWER.

1803.

DREW

V.

POWER.

66

66

now appearing to bear date the 1st day of April 1791, "and 25th day of March 1792, in the pleadings mentioned, ought to be considered as obtained under the influence of "the loans made and agreed to be made by the plaintiff to "the defendant, and as advantages gained by the defendant over and above legal interest on the money advanced by the plaintiff to or for the use of the defendant, and "that the same ought to be deemed fraudulent evasions of "the statutes for prevention of usury, and under advantages "taken of the distressed situation of the plaintiff, and that "therefore the same ought to be set aside; and let the same "be set aside accordingly. And let the master take an ac66 count of what said defendant made, or without wilful "default might have made of the lands and premises com

prized in the said respective leases from the time of de"fendant's entering into possession thereof; and let the mas"ter also take an account of all improvements made on land's "by the defendant at his own expense, or repaid by him to "his tenant and not deducted out of the rents reserved by the "demises made by the said defendant to his under-tenants 66 or any of them; and let the said defendant have credit "for same in the account heretofore directed of the rents "and profits of such lands; and let the master in taking "said several accounts set off the sums which defendant

shall from time to time appear chargeable with for such rents and profits, first in discharge of the interest, and next to sink the principal which shall appear to have been really due on foot of said bond upon the account herein "before directed, and of the judgment debts of which "the defendant obtained such assignment as aforesaid, and "then in discharge of the other demands, if any, of the "defendant on the plaintiff on the account herein before "directed; and let the master state the balance remaining "due on the accounts aforesaid to the plaintiff or defendant "respectively, and let the master also inquire what under

"leases have been made of the said premises by defendant "prior to filing plaintiff's bill, and when and for what

66

CC considerations and under what circumstances, and particularly what covenants are contained therein respec❝tively."

1803.

DREW

V.

POWER.

BATEMAN v. WILLOe.

July 4.

THE plaintiff being engaged in a variety of litigation, Where a ver

dict has been

fendant who

about the year 1792 employed the defendant as his attorney obtained and solicitor, in which capacity he transacted business for against a dehim till 1799, when the plaintiff having called on him to furnish his bills, the defendant furnished twenty bills of costs, seventeen of which had been taxed, and were for regular professional business done in various suits to which the plaintiff rules of the

" for

neglects to aptrial within ply for a new the time appointed by the

bill for an injunction on the ground that the mand was unplaintiff's de conscientious,

was a party; one other bill of costs was recovery of court of law, this court will "the Ross jointure," and there were two entitled "miscel- not entertain a "laneous business," one of which defendant admitted he did not originally intend to charge: there was also an unsettled cash account. The parties having agreed to refer the matter to two gentlemen of the bar, they proceeded in July 1800 to settle the account on the foot of the seventeen taxed bills and the cash account, and found a balance of 7131. 11s. 4d. due to the defendant, which was paid by plaintiff: it was agreed that the other bills should be referred to two attornies, and there was a submission for that purpose signed

or that it was

subject matter for an account; provided it was competent to the party to lay those grounds before the jury on the trial, or before the court of law on motion for a new trial.

1803.

BATEMAN

V.

WILLOE.

by the parties; but that not being proceeded on, the defendant entered a rule for proceeding (compromise being off) in an action which he had in June 1800, commenced in the Exchequer : on the trial in Michaelmas term, 1800, he gave in evidence the three bills of costs, and recovered the amount of them, 2991. Bateman conceiving that he had good grounds to impeach this verdict, directed a motion to be made in the ensuing term, and filed an affidavit for the purpose, but by some mistake, notice of the motion was not given until after the period within which, by the rules of the court of Exchequer, it was competent to him to give it, and the court therefore, on that ground, and without going into the merits of the application, refused to disturb the verdict. Thereupon the present bill was filed, stating that some of the business charged for in the bills on which the verdict was founded was done by Willoe while in his apprenticeship, and some without having been employed by plaintiff as his attorney; that there were unreasonable charges in those bills; that Willoe had waived demanding the amount of one of them, in consideration of being paid the balance awarded to him by the arbitrators, and that he had not given credit for several sums amounting to £61: 15: 5 1-2, for which plaintiff was entitled to credit, and which were not included in the accounts settled by the arbitrators, but had been by them specially excepted by a memorandum at the foot of the cash account. And the bill prayed an account and an injunction to restrain Willoe from proceeding on his verdict. Defendant by his answer alleged that credit had been given for much the greater part of those sums (which composed the £61: 15: 5 1-2) in an account settled in 1793, previous to the commencement of the accounts in question.