4. Aug. 1671. The Undertak­ing was for Five Years from 25th. Decemb. 1670. to 26th. Dec. 1675. 8. Nov. 1671.THE Lord Ranelagh, Sir Alexander Bence, Sir James Hayes, Robert Huntington, Richard Kingdom, John Bence, Joseph Dean, John Stepney, and the Testator Mr. Dashwood, by Letters-Patents under the Great Seal of England, were concerned in the Undertaking for Management of the Revenues of Ireland, from 25th. Dec. 1670. to 26th. Dec. 1675. and no longer; and by Commission also under the Great Seal dated 23th. Sept. 1671. the said Undertakers, or in their resepective ab­sences (most of them living here in England) several Persons therein named as their respective Representatives, or a Quorum of such five of them as are therein particularly named, were appointed to manage the undertaking until the said 26th. Dec. 1675. and no longer; and by Articles between the Undertakers, the Lord Ranelagh was to have and bear four 12th. Shares, and Mr. Dashwood, and each other of the Undertakers one 12th. Share of all Profits and Lossess by the Undertaking. But the Representatives had no Interest in the Undertaking, and only acted for the respective Undertakers for a Salary allowed them by each Undertaker.

Sir John Champante was appointed Treasurer of the Undertaking, and by his Commission (which recites the said Commission to the Undertakers) was appointed to receive and pay all Money relating to the Undertaking, during the Continuance of his said Commission, in such manner as he should be directed in Writing, signed by the said Quorum of the Undertakers, or their Representatives, and not otherwise.

Sir J [...]hn Champante's Accompts to the 26th. Decemb. 1673. were stated and drawn into two Accompts, one for 1671/2;, and the other for 1673, and afterwards were examined, allowed of, and subscribed by a Quorum of the Undertakers, or their Representatives, and are not questioned.

8. May 1674. Dashwood's As­signment. Bill in Ireland. Geor [...]e Dashwo [...] by Indenture assigned his Share in the Undertaking to Sir James Hayes, and from that time Sir James Hayes was to stand in the place of Mr. Dashwood as to all Profit and Loss by the Undertaking. Of this Assignment Sir John Champante soon after had notice, and from the time of the Assignment, Mr. Dashwood never intermedled in the Undertaking, nor further concerned himself therein.

Sir John Champante brought his Bill in the Exchequer in Ireland against my Lord Ranelagh and some others (and amongst others named therein the Testator Mr. Dashwood) and thereby demanded against them the Sum of 36454 l. 8 s. 8 d. as due to him upon two pretended stated Accompts made up and stated about October 1677. by one Edward Roberts, by colour of an Authority given to him by the said Sir James Hayes and Mr. Stepney, without the privity or consent of any of the other Undertakers, one of the Accompts be­ing from 25th. Decemb. 1673 to 25th. Decemb. 1674. and the other Accompt from 25th. Decemb. 1674. to the 24th. day of June 1677. But finding after he had filed his Bill that the Undertakers then concerned could falsifie those Accompts in 12295 l. in one intire Summ, Champante and Roberts alone, and without the privity of the Undertakers, about January 1678. being above 12 Months after the pretended Accompts were stated, altered the same, and cut out and destroyed the whole Charge-part of the Accompts being many Leaves, and caused a new Charge-part to be written over again, and fixed the last Leaf containing Roberts's Approbation of the Accompts to the Leaves so new added.

To the Bill in Ireland Mr. Dashwood never appeared, and died 8th. March 1682. 8. Mar. 1682. long before the Case there was brought to Hearing, and the Suit was never revived there a­gainst the Appellants his Executors, nor they ever called to or made parties to the Bill or the Accompts. But 11th. June 1684. Champante obtained a Decree in Ireland against the Lord Ran [...]lagh, and some others of the Undertakers which were then alive, for 24159 l. 8 s. 8 d. besides Costs.

Bill in England. 6. May 1675. 58756 l. 4 d.Sir John Champante afterwards exhibited his Bill in the Exche [...]uer in England against my Lord Ranelagh and several others, and amongst the rest against the Appellants, the Executors of Mr. Dashwood, and thereby demanded the 24159 l. 8 s. 8 d. decreed in Ireland, 17350 l. for Monies he pretends he stands bound for, and 9180 l. for Money he [...]retends he advanc'd besides other Principal Monies, Gratuities, Commission-Monies, &c. not included in the said Accompts, amounting to 34596 l 11 s. 07 d. his Demand in [...]ll amounting on the 6th. of May 1675. to 58756 l. 0 s. 4 d. ⅛. and Interest for the same ever since, which was the first time the Appellants ever heard of Sir Jo. Champate's Demands against them.

Appellants An­swer.To this Bill the Appellants by their Answer amongst other things insisted, That their Testator had but a 12th. Share in the Undertaking, and had assigned as abovesaid, and that Champante soon after had notice thereof.

That the Appellants (being only Executors in Trust for Minors) being alarm'd with so great a Demand, and especially it being founded (as was pretended) upon a stated Ac­compt, and knowing their Testator had assigned as before is set forth, having found amongst his Writings a Counter-part of the said Assignment, inquired into the said Ac­compts, and Mr. Roberts's authority, and presently discovered that the great Summs that made up the Foot of the said pretended Accompts were Monies pretended to be ad­vanced and borrowed by Sir John Champante for the Undertakers, long after Mr. Dashwood's Assignment, and without his order or privity, and after the end of the Under­taking, and that Roberts had not fairly stated the said Accompts, nor had any concluding authority to state the same.

That the Cause being at Issue, the Complainant in Trinity Vacation 1688. Trinity Vacation 1688. took a Commission into Ireland for Examining Witnesses, and the Appellants joyned in the Com­mission and sent a Person into Ireland on purpose to look after their Witnesses, and to attend the Execution of the Commission, who got some of their Witnesses Examined: But one Mr. John Beesley who was Imployed as a Clerk in the Undertaking under Sir John Champante, and could have proved that Sir John Champante had notice of the Assignment from Mr. Dashwood to Sir James Hayes, was at that time sick at Sligo, far distant from Dublin, and so could not be Examined at that Commission; and Mr. John Hayes who also was then in Ireland, and could have proved the Notice to Sir John Champante, was made a Defendant to prevent his Testimony, and could not be Examined without Leave of the Court which were the Reasons the Appellants exhibited no Interrogatories there, for to prove Notice of the said Assignment.

23. Oct. 1688.The Court was moved by the Appellants for a Commission to Examine their Witnesses as of Right due unto them, but the Barons denied, it and only gave the Defendants a Weeks time to Examine Mr. John Hayes to prove Notice to Champante of Mr. Dashwood's Assignment, but Mr. Hayes then being in Ireland, and not returning it that time, nor long after could not be Examined.

29. Oct. 1688.The Person that went into Ireland to attend the Execution of the Commission came thence before the same was ended, that he might be in Town before the first day of Mi­chaelmas Term 1688. to move for a new Commission, but being becalmed at Sea was prevented, but soon after his coming made Oath, That Mr. John Hayes, Mr. Beesley and others, were material Witnesses for the Defendants, and set out in the Affidavit that Beesley could prove the Notice; and also what the other Witnesses could speak to, and the Reasons why they could not be Examined on the said first Commission; and thereupon the Court was again moved for a new Commission to Examine the said Witnesses, the Defendants never having had one before. But the Court refused to grant one, but ordered Mr. John Hayes to attend at the Hearing to be Examined as the Court should think fit; and the Court then declared that they would let in the Appellants to prove Notice if they found it material at the Hearing of the Cause.

Trinity Vacation 1688.The Appellants and other Defendants exhibited a Cross Bill against Champante, and therein charged him particularly to answer if he had not Notice of of Mr. Dashwood's Assignment to the said Sir James Hayes: To this Bill Champante, refused to answer, but put in an Evasive Plea, upon hearing of which the Court of Exchequer would not give their Judgement, whether he should answer or not till they had heard the Cause upon Champante's Bill.

Easter and Trini­ty Terms 1689.The Cause was heard in the Exchequer, and the Appellants the Executors proved the Assignment in Court, and had their said Witnesses there ready to prove Notice there­of to Champante, but the Court being altered, and all new Judges, and therefore strangers to the former Debates, would not hear them, and Champante endeavoured to prove that Mr Dashwood acted in the Undertaking after the said Assignment, and exhibited for that purpose several Letters and Orders pretended to be signed by Mr. Dashwood, but the same were all counterfeited, and not Mr. Dashwood's Hand-writing.

Decree. 20th. of June 1689.The Court bv their Order on Hearing declard, as on one side they were not fully satisfied to adjudge the said Accounts stated by Roberts to be conclusive, so on the other side, they would not disallow thom as stated and closed Accounts, but being willing that in case the Defendants should have material Objections to offer agianst any of the Particulars of the Accounts, that the same should be examined by Auditors, referred it to the Auditors of the Imprest to examine the two last Accounts, and also if they are in the Method of the former Accounts, and the Auditors are to be armed with a Commossion to examine Witnessess on both sides, if need be, concerning the said Accounts, as also for examining Champante, who not having answered the Cross-Bill, is instead of an Answer thereto, to be examined upon Interrogatories: And in case of any Difficulty, the said Auditors are to certifie the Matters specially, and crave the further Direction of the Court therein. And the said Auditors are also to state the Interest, Commission-Money, and Gratuities upon the said two last Accounts, and take the Account of Champante's Receipts and Disbursements relating to the Undertaking since the 24th. of June 1677. and such of the Defendants as would be exempted from Accounting were to bring in their Cases for the Barons to consider of and the said Jo. Hayes is thereby dismist as to being a Party to the Account, but is not to be examined as a Witness in the said Cause.

Upon passing of which Order or Decree the Appellants were not permitted to insert therein any part of their Answer or Defence, or that the said Assignment was proved in Court.

The Appellants the Executors of Mr. Dashwood delivered in their Case for the Barrons to consider of, and insisted that they ought not to be accountable to Champante further than from 25th. December 1673. to 8th. of May 1674. being the time Mr. Dashwood assigned to Sir James Hayes, or at farthest to the time Champante had Notice thereof, and that Champante as against them ought to come to a new Account to that time.

6th. of December 1689.The Appellants Case coming to be heard before the Barons, who were strangers to the first Proceedings of the Cause, and to the Promises the Court had made to let in the Appellants to prove Notice at the hearing of the Cause, they refused to hear Witnesses Viva voce to prove the Notice, or to refer the same to be Tryed by an Issue at Law, although the same was very Material, and so declared by the Court, and indeed was the sole Point upon which the Appellants Cause depended; And ordered, that the Appel­lants (in regard they had not proved Notice in the Depositions before Hearing) (which they were disabled to do for the Reasons aforesaid) should be subject to the whole Account, though one of the Barons declared his Opinion, that the Appellants ought to be permitted to try the Matter of Notice at Law.

Upon passing of which Order however the Appellants were not permitted to insert in the same, that their Council prayed the Court would allow them to examine their Wit­nesses, or to go to a Tryal at Law to prove the Notice, and that they ought to be discharged from the time of the Assignment and Notice thereof.

Against which Orders and Decree the Appellants have appealed, as conceiving the same unjust and contrary to Equity and good Conscience.

Reasons of Ap­peal. I For that the Appellants Testator Mr. Dashwood, having by Deed under his Hand and Seal the 8th. of May 1674, assigned his share in the Underta­king to Sir James Hayes, another of the Undertakers, the Court ought before the Hearing to have granted the Appellants a Commision to have exa­mined their Witnesses, (as was desired) and at the Hearing the Court ought to have examined the Appellants Witnesses to have proved Notice of the said Assignment (the Assignment it self being proved in Court) or to have let in the Appellants some other way to have proved the same, according to the former Declaration of the Court (before the Judges were altered) that they would so do. And the Appellants ought not to have been decreed accountable further than to that time, Mr. Dashwood never acting not intermedling in the said Undertaking after the said Assignment. And the sub­sequent Letters and Orders produced by the said Sir John Champante as signed by Mr. Dashwood, to prove he acted afterwards, were all counterfeited, and not his Hand-writing, and near 30000 l. of the said Account is for Moneys pretended to be lent the Undertaking, long after Mr. Dashwood's Assignment; and the End of the Undertaking, which never did redound to the Benefit or Profit of Mr. Dashwood, and therefore not reasonable that his Estate should be chargeable with the same, and in truth one penny thereof was not paid or brought into the Undertaking.

II For that the Court of Exchequer have thereby, as far in them lies, deprived the Appellants of all means of proving the Notice, for they have ordered Champante only to be examined upon Interrogatories instead of answering the Cross Bill, which, if he had answered, the Appellants might in that Cause have examined to the Notice. And they have also ordered that Mr. John Hayes, who is one of the Appellants Witnesses to prove the Notice, and was so declared brfore Publication, or the Hearing shall be dismist, as not being concerned in Interest, to account with or answer Cham­pante's Demands, and yet to deprive the Appellants of his Testimony, have ordered he shall not be examined as a Witness in the Cause, notwith­standing he hath disclaimed by his Answer, and was not, nor is in any ways concerned in Intererest, being only the Representative of Sir James Hayes.

III For that the Court ought utterly to have rejected the pretended stated Accounts by Mr. Roberts (as to the Appellants) he having no Authority for stating thereof from the Appellants Testator; And Roberts himself hath sworn, that he understood the Authority was intended only for him to pre­pare the Accounts for the Undertakers perusal, and not that the same should be binding or conclusive to them. Nor was the said Authority signed by a Quorum of the Undertakers, or their Representatives, or by the Complainant Champante himself, and so he was not bound by what Roberts should do therein.

Also the said pretended stated Accounts are made up of general Heads and Abstracts, containing no Particulars of Times, Persons, or Sums paid or received: Besides, in them great Sums are allowed without sufficient Vouchers, and also vast Sums, to the value of 100000 l. and more are therein passed and allowed, without any Vouchers at all, and Champante refused to deliver the Vouchers he had, by a Schedule, though the Undertakers offered to take them, if he would do so, but carelesly threw them away, to prevent any Examination or Discovery thereof.

Also the said pretended stated Accounts were above a year after the making up of the same, and after a Bill brought in Ireland for the Moneys pretended due thereupon, altered by Sir John Champante and Mr. Roberts, without the Privity of any of the Undertakers in 12295 l. in one Item, as is since discovered, and all the Charge-part cut out and destroyed, and a new Charg-part of several Leaves put in the room thereof.

Also the said pretended Accounts are carried on until the 24th. of June 1677. whereas the Undertaking ended at Christmas 1675. and after that, Sir John Champante acted only by Order from some particular Persons then concerned in the Undertaking (but Mr. Dashwood was not any of them) so that that Account at most as against the Appellants (because Notice was not proved of the said Assignment) ought only to have been taken until Christmas 1675. And the same as to the Appellants, ought to have been an open Account; It not being pretended that their Testator ever had any Notice of the stating thereof, or concerned himself therein, or assented to the same.