Case 2.—Humphry Brown,—Appellant; Richard Bradford, Executor of Willoughby Pond,—Respondent [2d March 1698 [7]].
Appellant had brought debt against respondent, as executor, upon a bond dated 16th November, 1670, executed by Pond and Leonard Upsall, [9] senior, and Leonard Upsall junior, for 200l. conditioned to pay 100l. with interest. And respondent brought his bill in Chancery, alledging he paid the debt to the appellant; who, in his answer, denied this bond paid, but confessed respondent paid him 107l. 10s. in discharge of another bond for 200l. dated, 7 July, 1671, executed by Pond and Upsall the elder, only; and though there had been three verdicts against appellant, that the bond in question was satisfied, yet he alledged that the bond of 1671 was paid in 1679; and that the executor of Upsall the younger had on 11th November, 1686, paid 9l. for interest on the present bond; and as the respondent alledged, he paid one bond only, when there were in truth two bonds, it was against conscience to decree him to deliver up the bond not paid, and further to pay 160l. costs; and insisted, if, as alledged, the bond were indeed paid, the respondents could have so proved it at law, and need not come into equity, and insisted further that the two first trials had not satisfied the conscience of the Court, or a third would not have been directed, and that it appeared fully at the last hearing, that there were two bonds, and but one paid; and that the judge (Powel) was not satisfied with the last verdict, and that the decree ought to be reversed.
The respondent, on the other hand, averred that Pond and the two Upsalls, in 1670 or 1671, were bound to appellant in 200l. to pay 100l. and interest, and that respondent had, after Pond's death, paid that debt to appellant with interest and charges, and took his receipt; that appellant pretended he had not then the bond, but acknowledged Pond owed him no other money, and complained by his bill. that appellant sued him on an old bond of twenty years standing for 100l. entered into by Pond and the two Upsalls, which was for the same money. The cause was heard at the Rolls, 30th October, 1689, and an issue directed, whether the bond, dated 16th November, 1670, were satisfied or not; which issue was tried and found for respondent, and the cause heard on the equity reserved, and appellant decreed to deliver up the bond to be cancelled, and to pay the costs at law and in equity; and afterwards on a rehearing at the respondent's instance, in 1691, the Court directed a new trial on this issue, whether there were two bonds or not, and whether both were satisfied or not? Which issue was tried at Nottingham, 1692. and a second [10] verdict in favour of respondents; and on a further rehearing at appellant's instance, a further issue was directed, whether the several bonds in question were satisfied or not, which was tried at Nottingham, 1695, and a third verdict in favour of respondent; and appellant several times moved for a new trial and was refused; and 15th June, 1696, the cause was heard on the equity reserved. and appellant decreed to deliver up the bond of 1670, and to pay costs as before, which were taxed to 140l. and in December, 1696, appellant again petitioned for a rehearing, which petition was dismissed. And the respondent insisted that the said order and decree of the 15th June, 1696, had satisfied the conscience of the Court, and were agreeable to the rules of law, equity, and justice, and that the appellant ought to be concluded after so many solemn hearings and proceedings, and that the appeal ought to be dismissed.
And accordingly, after hearing council, the Lords adjudged that the petition and appeal should be dismissed, and the decree affirmed. (Journ. vol. xvi. 223.)
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