case the town OF Galway appellant henry russell respondent saint may a court  of equity will not carry interest beyond the penalty of a bind where the  demand be stale and appear to have be neglect for many year order report and  decree in the court of exchequer in Ireland reverse see note at the end of  this title p infra viner vol p e can Eq can ab b can the corporation of Galway  be entitle to diverse land and to several duty and custom arise by trade they  for supply part of the army in Ireland do before the year mortgage their  charter custom and duty for pound or thereabouts to several person who  afterward forfeit on account of the rebellion in and king Charles two by  letter patent have grant those mortgage to Elizabeth Hamilton widow she by a  order of the court of chancery in Ireland obtain a sequestration of all the  revenue of the corporation and by virtue thereof receive great part of her  debt about the year colonel Theodore Russell the respondent father be quarter  in and governor of the say town of Galway propose to the corporation that if  they will elect he mayor he will treat with mrs Hamilton for her interest in  the say mortgage and will procure for they a new charter he be accord choose  mayor and soon afterward agree with mrs Hamilton for her interest in the  mortgage and brown likewise obtain from his majesty a new charter for the  corporation in this new charter colonel Russell procure himself to be name  mayor send also procure a clause to be insert therein to the effect follow  videlicet that the corporation shall not levy or receive any of the say duty  and custom nor interrupt the colonel or his agent in the receipt of they until  he out of the issue and profit shall receive pound by he expand in purchase  the say charter duty and custom and also such other sum as he shall make  appear to have lie out concern the same together with pound for his trouble  over and above his disbursement and the Lord lieutenant deputy or chief  governor of Ireland and the privycouncil thereof from time to time be require  to keep colonel Russell in quiet possession of the say duty and custom either  by annual elect he mayor of the say town or otherwise as they shall judge  expedient until he be pay as aforesaid under colour of which clause and by his  power as governor he enter into the receipt of all the revenue of the  corporation of the yearly value of pound or thereabouts and procure himself to  be continue mayor and in the receipt of the say revenue for the space of  fourteen year in the year the corporation petition the government and  privycouncil of Ireland pray that colonel Russell may account for the say  revenue and thereupon sir John topham knight one of the master of the court of  chancery Richard coote and John Coghill esqr be by the government and Council  appoint auditor of all account between colonel Russell and the corporation and  they have examine the same do on the d of march report that the say account  appear intricate and that by mean of the multiplicity of order of the common  council and those of the say town many of they be contradictory to each other  and the corporation be like to suffer by the arrear of the revenue which  colonel Russell allege stand out uncollected therefore to prevent further  detriment to the party they by mutual consent have come to the follow  agreement videlicet that the corporation shall on the that of September then  next ensue pay colonel Russell pound in full of all demand whatsoever and to  insure the payment thereof good and sufficient security such as the then next  judge of assize for Connaught circuit shall approve of shall enter into bind  with warrant of attorney to confess judgement thereon and that by like  security pound more be to be secure to colonel Russell Payable on the that of  September brown er p as a gratuity above what be grant he by charter and other  sum give he for his service in consideration whereof colonel Russell be to  quitclaim and release the corporation of all demand and be likewise to deliver  to they a full schedule and particular of the arrear of rend and charter duty  and custom which he allege amount to pound S d and which one Dominick brown  bodkin his agent by a note under his hand bear date the that of march engage  to justify to be due or to pay the same and the colonel be also to give up to  the corporation the bind and pledge then in his hand for pound more and in  case any part of either of the say sum have be receive by he or for his use he  be to discount they out of the pound and the better to discharge the say pound  the corporation be to have the full benefit of the revenue from Michaelmas  this report and agreement be respective sign by the auditor and also by  colonel Russell and Richard plumer agent for the corporation and the same be  approve of by the government and privycouncil by their order of the that of  march and all person be require to conform thereunto and accord Thomas revett  John Gerry Thomas Yeaden Thomas Wilson William Hoskins Thomas Simcock Thomas  pool and Richard plumer be responsible person by the consent of colonel  Russell and with the approbation of Henry Hern and William worth esqr the then  next judge for the Connaught assize do on the that of April enter into two  several bind with warrant of attorney to colonel Russell for payment of the  say several sum of pound and pound as before mention and the colonel on the  say that of April do perfect to the corporation a general release of all debt  and demand whatsoever notwithstanding colonel Russel have sufficient security  for his full demand and have absolute release the corporation from the same  yet be mayor of the town he continue the say Dominick bodkin his agent in the  receipt of the say revenue and on the that of October pound of the corporation  money be actual place in the hand of Thomas revett one of the say bondsman  towards payment of colonel Russell and he be also continue mayor of the  corporation until Michaelmas do or may have receive his say debt of pound from  the say revett and out of the say arrear and revenue the revenue be then of  the yearly value of pound or thereabouts but colonel Russell have the power of  the corporation in his hand by the assistance of a few of the member dispose  of the say revenue as he and they think fit have suspend such as will have  oppose he and grant lease of the corporation land to other who assist he and  be conscious that he be or may have be full pay the say pound and have a  intent to increase and renew his demand and keep the corporation in his power  he seek out mean to avoid the say agreement and accord on the that of may he  and about nine member more be assemble enter a order in the corporation book  that the aforesaid release by he duly perfect shall be cancel and deliver up  to he and he be thereupon to deliver up the say bind which be accord do  notwithstanding two of the bondsman who be then suspend from be common  councilman be against it and the pound brown in the say Thomas Revetts hand be  thereby order forthwith to be pay to colonel Russell and the say bodkin be  also to pay he all such sum as he have in his hand due to the corporation and  that colonel Russell shall be leave to account with the corporation from the  beginning for all sum of money by he pay and disburse for they allow he a  salary of pound per and for the time he serve as mayor and have in like manner  obtain several other order allow he several great sum of money he on the that  of June follow to colour his proceed have another order enter confirm all  former order make in his favour and have thereby compass his design he then  restore all the suspend member in August follow the corporation have elect  another mayor colonel Russell on the that of October summon a full assembly  which he attend where his proceed and particular those relate to the cancel  the release be examine and thereupon the say order of the that of may and that  of June and several other order be no one to speak against order to be and  accord be vacate as injurious to the corporation and at this assembly there be  forty member present though at the former there be but nine brown er p after  the removal of colonel Russell from the mayoralty in he petition the  government and privycouncil and the corporation have complain to they against  his proceed they be please to refer the examination thereof to John Bingham  Robert miller Dennis Daly and garret more esqr who full hear all party and  report that the arrear of the corporation revenue stand out at Michaelmas the  pledge in colonel russell hand and the revenue of the corporation from  Michaelmas to Michaelmas exclusive of the water bailiff office amount to pound  S d and that colonel Russell do or may have receive the say pound clear of all  charge this report have be lie before the government and privycouncil colonel  Russell acquiesce therein till the year when he apply to the government and  privycouncil to compel the corporation to account with he from the beginning  which be refuse but by a order date the d of December two master of the court  of chancery be appoint to state the account on the foot of the say agreement  in but the colonel know that several member of the corporation be then live  who can justify the report make by the auditor in neglect to prosecute this  order or make any further demand during the remainder of his life  notwithstanding he live until the month of November but on the d of December  about nine year after the colonel death the respondent as one of his executor  exhibit his bill in the court of exchequer in Ireland against the appellant  and the colonel other executor not only for the recovery of the pound with  interest but also for several other sum to which bill the appellant have plead  the statute of brown limitation the plea be on the saint of November argue and  the benefit thereof reserve till the hear of the cause on the that of may the  appellant put in a answer to the bill and thereby inter alian insist that they  be not liable to the say debt the same and all demand on the foot of the  mortgage have be release by colonel Russell as aforesaid and no corporate act  do afterward to set up the say mortgage and that the colonel have have  sufficient security for his demand ought not to resort to the corporation and  the cause be at issue and witness examine and publication pass the same be on  the rd of July hear and full debate when the respondent say bill be dismiss  although the respondent acquiesce under this dismission till the year yet on  his petition for a rehear the cause be on the that and that of may reheard  before Mr baron Pocklington and Mr baron saint leger who differ in opinion a  further day be appoint for the court to give judgement and on the that of the  same month one of the say baron declare he will have the officer to state the  account in the cause before he will give his opinion no decree be pronounce  but a order be make that the officer shall state the account on the say order  of the government and Council date the d of December and he be require to  report that or any other matter which may appear difficult to he special the  appellant have petition for a rehear the cause be on the that and that of  January reheard accord when the court be please to affirm the former order to  account but on the saint of February follow the court declare they have  reconsider the cause do then order that the appellant shall account for the  sum of pound only which appear to be due to colonel Russell on the account  state in and not for the pound demand by he as a gratuity the respondent  pursuant to the say order and decree on the that of February procure the  officer report whereby the say officer take upon to determine that the say  Dominick bodkin be agent or receiver for the corporation and state the account  on the return make by bodkin as such which be contrary to the order of the  that of may direct the account wherein the say bodkin be allow to be agent for  colonel Russell and to account as such and the officer do thereby report  without any proof that colonel Russell deliver the corporation a full  particular of the arrear and also the bind and pledge mention in the agreement  in and refuse to give the appellant any allowance for the say arrear bind and  pledge or to examine or report the difficulty the appeal brown er p lants  labour under from the time the Irish papist have before the rebellion in  dispossess the protestant of the say revenue until the reduction of the say  town and garrison of Galway in but charge the appellant with the say pound and  interest at pound per cent per and for thirtyfour year four month and eighteen  brown day whereby a balance of pound and upward be report from the appellant  which Triple exceed the sum contain in the bind accept by colonel Russell as a  security for the pound neither will the officer in the say account allow the  appellant the sum of pound pay into the hand of the say Thomas revett for  colonel Russell which by his own agreement at the time of cancel the release  he be forthwith to have receive from revett and which he do or may have  receive accord and the officer also refuse to allow the appellant pound S d  which appear by bodkin book of account that he do or may have receive for  charter duty and although it be admit that the rend of the corporation land  from Michaelmas to Michaelmas amount to pound and no impediment appear to the  receive thereof by colonel Russell yet the officer will give the appellant a  allowance only of pound S d on account of the say rend and the say officer  allow colonel Russell and bodkin several sum which fall due before Michaelmas  to Michaelmas and which ought and may have be pay out of the revenue receive  before Michaelmas he also allow they several sum allege to have be expend for  the repair of the citadel and dwell of colonel Russell and several other sum  which be no corporation charge and several sum be abate for rend though no  charge be allow the appellant for the rend of the land so abate the appellant  therefore on the that of may take several exception to this report which be  hear on the d and saint of June before Mr baron saint leger the substance of  the first exception be that by the say order of the that of may and which be  confirm on the saint of February it be declare that the say Dominick bodkin be  agent to colonel Russell and the officer be require to allow the appellant  what the colonel or his agent do receive of the sum in the say order mention  whereas the officer report bodkin to be receiver for the corporation and the  obligors and report fact and state the account on the return make by bodkin as  agent for the appellant contrary to the proof in the cause but this exception  be overrule notwithstanding the say former order and the evidence of several  witness who prove bodkin to have be agent for colonel Russell in the year and  and the court refuse to direct a issue to try that fact though the appellant  counsel insist on the same at the peril of costsThe substance of the second  exception be that the officer report that colonel Russell do deliver to the  corporation a full particular of the arrear of pound S d allow due by the  agreement in and also the say bind and pledge for pound then remain in his  hand which be then agree to be deliver to the corporation though it be not so  much as allege by the respondent in his bill or any wise prove in the cause  that the same be so deliver but the contrary appeared And the substance of the  eight exception be that brown though it appear to the officer by the proof in  the cause that colonel Russell and bodkin as well before as after the  perfection of the say security continue in receipt of the say revenue whereby  the corporation can not receive any part of the say arrear of pound S d or any  of the say security for pound all paper relate to account be by the say order  for cancel the release to be give up to the colonel and the say bodkin be  thereby to pay he all money in his hand due to the corporation yet the officer  refuse to allow the appellant the say sum or any of they and notwithstanding  the respondent do not produce any proof that the say particular of the arrear  and the pledge be deliver up to the corporation or that the say corporation  have receive the same but by the proof in the cause it appear that the colonel  and bodkin be in receipt of the say corporation revenue yet both the say  exception be overruled The substance of the four exception be that the officer  have make no allowance for the time the papist dispossess the protestant of  the say revenue or for the time of the rebellion but have charge the appellant  with pound per cent per and for thirtyfour month and eighteen day it be  therefore order that the appellant shall have a allowance of two year in brown  er p terest only notwithstanding the interest compute Triple exceed the sum  for which the bind be enter into and that colonel Russell and the respondent  do not make any demand of the say debt for fifteen years The substance of the  five exception be that the officer refuse to allow the appellant the sum of  pound in the say Revetts hand in trust for colonel Russell which by the say  order of council procure by he for cancel the say general release be by his  own agreement to be forthwith pay to he and which he do or may have receive  several deal have pass between he and revett but on the contrary give bodkin  credit for the same against the appellant contrary to the order of reference  and notwithstanding the appellant counsel offer to try it at law whether  colonel Russell do not receive the pound from revett by a issue to be direct  for that purpose and at the peril of cost yet the exception be overruled The  substance of the seven exception be that though the officer find the rend of  the corporation land from Michaelmas to Michaelmas to amount to pound yet he  give the appellant a allowance only of pound S d for the rend which appear to  be a arrear due at Michaelmas and be recover by Russell in his own name in  march and which be a proof that he do or may have receive all former rend and  arrear yet this exception be also overrule and the substance of the several  other exception be against a allowance of pound S d for mend the steeple and  bell which be twice charge and other sum for the repair of the citadel and  dwellinghouse and other purpose which be no corporation charge and also  against a allowance of rend abate where no credit be give to the appellant for  the rend but these several brown exception be likewise overrule and the  officer be direct to amend the say double charge and make up his report accord  and the say officer have in pursuance thereof on the d of June make up such  amend report do thereby report remain due to the respondent from the appellant  on the that of February for the say sum of pound and interest pound S d on the  that of June upon motion of the respondent counsel but without give the usual  day for except the court be please to confirm the say report absolute and  decree to the respondent the sum of pound S d and interest for the say pound  to that day make together pound S d with interest and also decree a injunction  to put the respondent in possession until the say sum with interest and pound  S d cost of suit shall be pay from the say several order and decree of the  that of may saint of February and saint and that of June the appellant appeal  insist t Lutwyche S mead that the dismission of the respondent bill on the d  of July ought upon the rehear on the that of may to have be affirm and no  account direct in regard no demand have be make for fifteen year and that  there have be no transaction between the corporation and colonel Russell since  when the auditor report that he be or may have be pay and therefore upon the  circumstance of this case it be humble apprehend that the appellant ought to  have have the benefit of the statute of limitation that the colonel have take  sufficient security for more than his full demand and have absolute release  the corporation he can not reassume the same without a corporate act regular  make the corporation not be bind by any order make by he or any commoncouncil  of the town in manner aforesaid as not be a corporate act or under the  corporation seal that the security so give for the pound be not insolvent nor  be colonel Russell by any corruption or fraud of the corporation force to give  up his say security but the same be do upon his own application and when he be  in full possession of all the revenue of the corporation on the contrary his  proceed in relation thereto be carry on and prosecute in a very unfair and  illegal manner that the respondent demand if any lie against the obligors and  he ought to have sue they or at least have make they party to his bill so that  they may have be thereby oblige to account either with the respondent or the  corporation for what they have receive of the say revenue towards pay the sum  for which they stand security that if the respondent be entitle to a account  he ought not to have have a allowance of more than the sum for which the bind  be enter into and especial in the case of so stale a demand which appear to  have be brown er p neglect for fifteen year and the appellant ought to have  have credit for the pound in Revetts hand which colonel Russell on cancel the  security agree brown to take and which he either receive or may have compel  revett to have pay and for the pound S d arrear and the pound due on the  pledge which the colonel or his agent bodkin do or may have receive that in  regard the colonel from November during his life never prosecute any account  for his demand nor do the respondent after his death till December commence or  prosecute any suit for the same it be apprehend that no interest ought to have  be decree he for that time or at least that the interest ought to have be  mitigate and not decree at so large a rate as pound per cent for so long a  time as thirtyfour year and upward that the appellant ought to have have  credit for the rend of the corporation land there not appear to have be any  obstruction to prevent colonel russell receive such rend and that several of  the sum allow the respondent by the report to discharge colonel Russell of the  sum he receive ought not to have be admit because those payment no way relate  to the corporation nor be there any corporate act to justify his pay the same  it be therefore hope that the say order and decree will be reverse and the  respondent bill dismiss on the other side it be say r Raymond S Cowper to be  well know that in king James two be model all the corporation in Ireland and  put in popish magistrate that the obligors be protestant magistrate of the  town of Galway and in possession of the town revenue in order to enable they  to pay the debt to colonel Russell for which they have give their bind it be  apprehend as it afterward happen that they be soon to be turn out of the  magistracy and papist put in their place they therefore desire colonel Russell  to deliver up their bind on their deliver up his release which be accord do by  a order of common council of the that of may make with the unanimous consent  of the corporation and confirm by a subsequent order of the that of the same  month that the give this security by the magistrate of the town be evident do  for the better secure to colonel Russell his debt and the more speedy payment  of it which be to be in twelve month time and though such bind be give the  debt still remain unpay and no injury be do to the town by colonel russell  deliver up these security for the debt which be to be pay by the town to the  bondsman while the bind remain in force be to be pay to the colonel after  those bind be deliver up that the bind to colonel Russell be enter into on the  that of April the corporation by a order of the that of may follow empower  revett and the other bondsman to receive the revenue by virtue of which order  revett receive pound of those revenue but when the bind be deliver up in case  of the bondsman and not in case of the town the corporation from thenceforth  become colonel russell debtor so that it be not in his power to compel revett  to pay he this pound nor do he in fact ever receive it that colonel Russell be  a infirm brown man much afflict with the stone and actual die under the  operation to be cure of it and after his death the respondent have great  difficulty and many suit with his motherinlaw before he can get possession of  the say security and these be the reason why the corporation be not prosecute  for the say debt soon than the year that as to the allowance make to the  respondent by the report the objection be too general those sum be fifty in  number so that it be impossible for the respondent to be prepare to answer  they but if the appellant have give notice what particular sum they object to  as in fairness they ought to have do the respondent will have be able to give  a very full and satisfactory answer thereto and therefore it be hope that the  complaint of the appellant will appear frivolous and vexatious and that the  decree and proceed will in consequence be affirm and the appeal dismiss with  cost but after hear counsel on this appeal it be order and adjudge that the  say order report and decree and all proceed thereupon shall be reverse and it  be further order and adjudge that the respondent bill in the chancery of the  say court of exchequer in Ireland shall be dismiss jour vol p brown er p