he ought to do by the decree of that Court, which appellant was advised to do, in regard that Court had the priority of suit, and the Duke and Card were not parties to Sutton's bill in the Exchequer; and the Exchequer having enjoined the appellant not to proceed in Chancery against Sutton [30] on pretence the Exchequer had the priority of suit, appellant exhibited his bill in the Exchequer, against the Duke, Card, and Sutton, to the same effect; and thereupon the Chancery injoined the appellant not to proceed against Card in the Exchequer, for that the Chancery had the priority of suit. By which proceeding, the appellant was utterly deprived of remedy under either decree.
But the appellant is advised, that he can have no relief against the decrees and orders of Chancery, and that the decrees and orders of the Court of Exchequer, ought to have been agreeable thereto, in regard the said proceedings in Chancery were prior; and that Sutton, coming in pendente lite, was privy to all those proceedings, and bound thereby, and ought to have brought his suit in that Court, and not in the Exchequer; and submitted to the Lords dismission of so much of his appeals as concerned the decree, order and proceedings in Chancery, and that these proceedings should be affirmed: Wherefore, and for that, appellant was, by his articles, only obliged to procure Card to grant Sutton such lease or leases as the Court of Chancery enabled him, appellant conceived, that the Exchequer having ordered him to procure Card to make several leases to Sutton, at apportioned rents, such order ought to be reversed, as contradictory to the proceedings in Chancery, and the Lords affirmation thereof; and that Sutton ought not to have any lease until he hath paid the arrears of the said ground rent, incurred since Christmas, 1693: and therefore appealed from the decrees and orders of the Exchequer, and prayed they might be reversed, and to be generally relieved in the premisses. (Francis Browne. T. Newport.)
The respondent made this case: That appellant and he, 14th December, 1693, entered into and sealed articles concerning respondents purchasing from appellant several houses and buildings in Bear-Yard, and thereby Sir Cornwall, in consideration of 1100l. paid and secured by a mortgage of Sutton's estate in Surry, convenanted that he would, at or before the 15th of February then next, by indenture, assign and set over to Sutton all said premisses, and all his estate therein, free from incumbrances, and ground rent, to Christmas following, with reference, and according to certain articles, dated 5th March, 1682, between Gilbert, late Earl of Clare, and [31] John Hynd; and also to a lease of the same date, between the said Earl and Hynd, and Cowdron and Andrew Card. And Sir Cornwall thereby further covenanted, that he would, at or before said 15th day of February, procure Card to execute to Sutton such demise and demises, for such term or terms as by said articles, lease, and a decree in Chancery, dated 1st February, 1691, is enabled and directed to make; and that Sutton thereupon took possession; and, in confidence of Bradshaw's performing his agreement, laid out above 2000l. in repairing the premisses, and making a convenient passage thereunto; and that Bradshaw, from December, 1693, till Hillary term, 1694, declining to make him a title in the premisses, Sutton in that term brought his bill in the Exchequer for a specific performance of the articles; and that appellant had, in his answer, confessed the agreement, and set out a decree in Chancery between the Duke of Newcastle and himself, whereby leases were to be made according to Hynd's articles, and that the ground rent should be apportioned. And 26th June, 1696, the cause was beard in the Exchequer, and, after a long hearing, it was referred to two gentlemen to arbitrate the matter; and the cause to stand in the paper for the 26th October following. And respondents counsel then informing the Court that the referees could not determine the matter, prayed judgment in the cause; and no council attending for Sir Cornwall, it was decreed, that Sir Cornwall should perform his said articles, in specie, literally according to his covenant, unless cause that day fortnight; and then the decree was confirmed, and an issue directed as stated by appellant. And now appellant, by his appeal, endeavours to reverse the said decree, and avoid his own agreement, and to keep Sutton's money in his pocket for nothing; and objects that he cannot perform his own agreement, and that Sutton is become the Duke's tenant, and that his Grace promised to lease the premisses to him; but the respondent submitted, that the
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