lands held by Emerton, at the old rent of 150l. a year, and which Usher, being a stranger to the value, and to Croasdaile's fraud, consented to; and thus the articles between Usher and Croasdaile were entered into: And that the woods cut down by Croasdaile on the lands of Woodford, and other lands thereabouts, would, if yet standing, be worth 5000l. and for these woods Croasdaile never accounted: And that respondents, in March, 1709, filed a bill for an account against Croasdaile, but he died about three months after, before he answered, and then respondents filed their bill against appellants, his executors, as stated by appellants; who put in an answer, which they said Croasdaile in his life time had prepared to the bill exhibited against him by respondents Ormsby and wife, and confessed assets: And upon a trial of the issues directed by the degree at the Exchequer bar, and after a full bearing the jury ascertained the several values of the woods and iron-works, amounting in the whole to 3507l. 7s. which was 6000l. less than respondent ought to have had; and though appellants had voluntarily near a year since paid and secured all the money decreed, with the cost of suit to respondents, they now appealed from the decree: And respondents stated that appellants complaints against the decree were, because the Court refused to let the bill filed by respondents Ormsby and his wife against Croasdaile, and also against Usher and wife, to compel him to pay his rent reserved on his articles, and to perfect a counterpart of the same, be road on the hearing; and 2dly, that the issues contended for by appellants were not directed: And to these objections respondents answered, that that bill was never prosecuted, nor any answer put in thereto; and it was the constant course of equity not to admit such a bill to be read as evidence: That it was in proof in the cause that Croasdaile's agent as well as Emerton's managed the [467] works from the beginning, and that the profits were divided between them according to their respective shares, and each paid his own servants; and that Emerton sent a message to Croasdaile previous to the lease, that if Croasdaile would procure the lease, he, Croasdaile, should go sharer with him one third. All which necessarily implied an agreement before the lease, though the agreement was not reduced to writing for above a year and half after Emerton's lease, the better to conceal and colour such fraudulent conduct in Croasdaile, and that this and the lease afterwards procured from Usher, was a manifest breach of trust in Croasdaile, and therefore he ought to answer what he made of the lands, woods, and works, and not what they might be let for: And respondents contended that, after appellants had submitted to the issues directed by the decree, and made full defence on the trial, they ought not to be admitted to complain of the decree; and the rather, as appellants had long since paid the money, or secured it, and respondents bad given discharges for it, appellants were concluded to complain of the verdict: Wherefore respondents insisted the lords should affirm the decrees, verdict, and subsequent proceedings, and dismiss the appeal with cost. (R. Raymond. S. Mead.)
Die Lunæ, 6 Julii, 1713. After hearing council upon this appeal, it was adjudged by the lords that the same should be dismissed, and the decrees, orders, and proceedings complained of affirmed; and that appellants pay respondents 60l. for their costs. Lords Journ. vol. xix. p. 600.
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