Common Cases upon this Subject were quoted, to shew what Words would bear an Action in respect of Officers and Allegiance: And then 'twas argued strenuously, that this was a Special Damage, viz. to lose the Prince's Favour, which every Man ought to covet, and to lose a Place of Honour and Command, both which the Jury have found.
Reply for Plaintiff in Error. Judgment reversed.—It was replied on the Behalf of the Plaintiff in the Writ of Error, That as to the Reflection on the Government, it might perhaps warrant an Information or Indictment, but not an Action: That as to Challenges, there was vast Variety of Words which are reckoned provocative in the highest degree, As the giving the Lie, calling a Man a Coward, and the like, and yet will bear no Action. And at last, upon Debate, the Judgment was Reversed.
John Duvall and Elizabeth his Wife, Appellants; William Terrey of London, Merchant, Respondent [1694].
[15 Lds. Jo. 523.]
Court of Equity where not to direct an Issue. Penalty relieved there. When no Appeal for Costs.—The Appeal was to be relieved against a Decree in Chancery: The Case was, That the Appellant Elizabeth had entred into a Bond of 140l. Penalty, conditioned for the Payment of 72l. on the Twentieth of April 1676. and by reason of several Promises and Delays of Payment, and insisting upon Privilege, and other like Occasions, it was not put in Suit till lately, and then the Appellants were Arrested: And upon a Declara-[16]-tion the Appellants pleaded Payment at the Day. And after Issue joined, and Notice of Trial, upon some Discovery of a Defect in the Evidence to prove the Bond, Motion was made in the King's Bench to alter the Plea; which denied, a Bill was preferred in Chancery, on Suggestion that Elizabeth had never executed it, or that 'twas obtained by Fraud, and that there was no Consideration for the same; and the Respondent preferred a Bill, praying a Discovery if such Bond, &c. Upon Examination of Witnesses, and after Publication passed, the Cause was heard; and upon the Hearing 'twas ordered, That the Appellants should not be relieved, save against the Penalty of the Bond; and that it be referred to one of the Masters to compute the Principal Money and Interest due thereon, and to tax for the Respondent his Costs both at Law and in that Court; and that what should be found due for the Principal, Interest and Costs, be paid by the Appellants at such Time and Place as the Master should appoint, who computed the Principal and Interest at 154l. and the costs at 67l. and to be paid the Twentieth of October following.
Attorney pleads without Direction. Remedy against him.—Upon the Hearing of this Appeal, there were two Quæries made 1. Whether, there being some Difference in and about the Proof of the Bond, the Court ought to have made a Decree without directing a Trial at Law upon the Validity of the Bond: But 'twas held, That the Bond not being denied in pleading upon the Issue at Law, the Chancery had done right, and could not well have directed any other Issue than what the Parties themselves had joined in at Law; and tho' 'twas pretended that the Attorney had pleaded thus without Direction, the Court did not much regard that Pretence, because of the proper Remedy which the Law gives against such an Attorney, if the Pretence were true, and therefore they did not much consider that.
1 Ver. 350. Costs no Cause of Appeal, if the Merits against Appellant Decree affirmed.—Another Quære was, Whether the Court of Equity could justly award more than the Penalty? And objected, that the Order being to save against the Penalty, no more ought to have been decreed. But 'twas said, That notwithstanding that, when the same was referred to a Master to tax Principal and Interest, the Order bound the Party to pay both, tho' it amounted to more than the Penalty; and the Meaning of the first Part was only to relieve against the Penalty in case the Principal and Interest came to less than the Penal Sum;
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