case sir Cornwall bradshaw Knight Appellant William Sutton  Gentleman Respondent Mews dig thirteen the appellant show that John earl of  Clare now duke of Newcastle and John white executor of Gilbert late earl of  Clare have theretofore bring their bill in chancery against appellant William  bridge Andrew card and other charge that the say late earl Gilbert that of  march by article of agreement in consideration of l S covenant with John hind  that the earl will that march lease to hind or his assign several message shop  stable building and hereditament in or near claremarket clement Dane Middlesex  then in possession of several person name for year from that march at a  peppercorn rend for the first year and per and rend for the residue of the  term to build house and shop upon and agree that when the house shall be  second floor high and the shop finish he will at hind request and cost lease  each house and shop to such person or person as hind shall name for year from  the that of march and reserve a yearly rend on each house and shop Colles not  less than thirty Colles er p nor more than forty shilling a foot and that when  l per and shall be thereby ascertain the earl and his heir shall lease the  residue of the premise to hind for year at a peppercorn rend and for that  purpose the say earl be to let the premise to card and to George caldron since  decease for sixty two year from the say that of march in trust to make such  lease and that accord that march earl Gilbert demise the premise to card and  caldron upon the trust aforesaid and further agree that hind and his assign  may have the benefit of a lease make to the earl for a free passage from  Lincoln inn field to playhouse alley pay the rend reserve thereby and further  charge that earl Gilbert that January make his will and white his executor in  trust for the duke and that the appellant that October have become bind with  hind in a great sum to sergeant west and jane Kingdon and that for further  secure l part thereof with interest hind that may have mortgage all his  interest in the premise to the lady pie condition to pay her the say l with  interest in August follow and that hind afterward become bankrupt and the  commissioner assign all his interest in the premise to John brown and Thomas  sand and further charge that the appellant and bridge pretend some interest in  the premise under some extent or assignment of the lady pie and that hind and  his assign have not perform the article and agreement on their part and  appellant further show that the duke and white have by their say bill pray  that the arrear of rend may be pay and the trust perform or the premise  reconvey free of all encumbrance to the duke and his heir the appellant and  Whitlock Bulstrode thereupon bring their bill in chancery against the now duke  of Newcastle then Lord Clare white and card charge that Bulstrode have pay  lady pie by order of the court of chancery l and interest and take up the say  bind and also take a assignment of her security in trust for the appellant  that hind have perform his say article and lie out above l in building and pay  his fine and great part of the ground rend and have let the house and shop  when build for l S per annum but that the tenant be disturb by the say earl  entry and forbid Colles the shop to be use as shop and also forbid the tenant  to pay their rend to any but he or his agent whereby the tenant be drive away  and the house and shop rend fall above one half and appellant and Bulstrode by  their bill pray that the article may be perform and the house and shop enjoy  accord and they allow the loss sustain by the earl conduct and both case be at  hear saint February the court of chancery decree inter alian that it shall be  refer to a master to examine and certify what rend have be pay and what remain  in arrear of the l per annum and of l per annum for the rend of the say  passage and when the house and shop be build and finish and to who and how let  and that the lease of the premise shall commence from ladyday and that  appellant and his assign shall hold and enjoy all house and building on the  premise in such manner as occupy since the building thereof and that the  ground rend shall be apportion on such of the house and premise as shall be  sufficient to pay the same and saint June sir mile cook knight the master  report inter alian that the house be build and finish by hind in that there be  due to earl John the now duke and white at ladyday l S for nine year ground  rend above l S pay to their agent and for ten year rend of the passage l and  that the house and shop be let by hind agent at l S per annum and that  appellant and bridge have by letter of attorney that of may authorize hill to  receive the rend to their use and that July the court of chancery overrule  several exception to the report and decree that appellant and bridge shall  stand in hind place and pay the arrear of rend amount to l S and take lease of  the house accord to the article and refer it to the master to settle the same  but on a rehear that November the court declare that appellant alone ought to  stand in hind place and bridge to be charge only with the arrear incur since  he join appellant in the letter of attorney to hill and be from thenceforth  discharge of the accrueing rend he in court so desire and wave all right to  the premise Colles er p Colles appellant that December sell his interest in  the premise to Sutton who be privy to the decree and covenant to assign to he  all his estate therein at or before the that of February follow and to procure  card to execute such lease and lease as card be enable direct or ought to make  unto hind or appellant and Sutton covenant to indemnify appellant from all  ground rend c from and after Christmas and under these article Sutton be let  into possession of the premise then let at l per and and receive rend ever  since but in breach of his covenant with appellant never pay one penny of the  ground rend incur since Christmas and soon after the execution of these  article card by order of the appellant and Sutton make a draught of a lease of  the say premise to Sutton whereby the ground rend of l per and be to issue out  of the whole which draught be peruse and settle by council and agree to by  Sutton who order card to engross a lease pursuant thereto but afterward Sutton  insist to have distinct lease and will not accept of a lease accord to the say  draught but in Hillary term exhibit his bill against appellant in the  exchequer to compel a execution of the say article in specie and that  appellant shall procure card to make he twenty distinct lease but before the  appellant be require to answer that bill Sutton prevail on he to attend a  master in chancery and see if the rend can be apportion accord to the decree  of that court and Sutton produce a rental amount to l per and and the duke and  his agent insist the premise let be not sufficient for a apportionment the  master certify that matter to the court and pray further direction and the  court hear council in the presence of Sutton and his council July that declare  that all the premise ought to be subject to the say ground rend and so order  after which Sutton require a answer to his say bill which the appellant put in  Michaelmas term follow and thereby set forth the proceed in chancery and that  he be ready to perform the agreement on his part so far as he be empower by  the say decree and order but can not procure distinct lease of each shop and  house and that October the court of exchequer upon hear the say cause decree  appellant to perform his article with Sutton in specie with reference to the  word in the article unless cause Colles that day fortnight and that November  follow confirm their decree and further order a feign action to be bring  against the appellant as upon a quantum dampnificatus to ascertain what damage  Sutton have sustain by appellant not perform his article for the time pass  upon trial whereof Sutton recover l damage against the appellant although  Sutton have quiet enjoy the premise and receive the rend from the time of his  agreement without interruption or pay any of the ground rend and that December  the court of exchequer refer it to Mr baron Blencow to settle the lease to be  grant by card and the baron notwithstanding the decree and order of chancery  declare it his opinion that the ground rend ought to be apportion and that  card ought to grant distinct lease and have approve a draught of the lease to  be make by card issue several summons for Sutton to attend he with a account  of the name of the several tenant and a particular rental in order to  apportion the rend thereof and that February appellant in obedience to the  decree of the exchequer assign all his interest to Sutton though Sutton have  not execute a counter part but without attend the baron accord to the summons  move the court of exchequer against the appellant for a attachment for  contempt in not perform the decree of that court in procure card to execute  several lease at apportion rend and the that December obtain a order for a  attachment upon which the appellant appear and be examine on interrogatory and  acquit of the contempt inasmuch as the lease direct by the baron be not  perfect by insert the apportionment and the duke afterward prosecute appellant  for the arrear since Christmas which Sutton ought to pay and Sutton be in  possession and a prisoner in the king bench in execution but not at the  appellant suit appellant in Michaelmas term bring his bill in chancery against  his grace card and Sutton to oblige the duke to accept Sutton tenant and to  enforce Sutton to pay the arrear since Christmas and card to make such lease  as Colles er p he ought to do by the decree of that court which appellant be  advice to do in regard that court have the priority of suit and the duke and  card be not party to sutton bill in the exchequer and the exchequer have  enjoin the appellant not to proceed in chancery against Sutton Colles on  pretence the exchequer have the priority of suit appellant exhibit his bill in  the exchequer against the duke card and Sutton to the same effect and  thereupon the chancery enjoin the appellant not to proceed against card in the  exchequer for that the chancery have the priority of suit by which proceed the  appellant be utter deprive of remedy under either decree but the appellant be  advice that he can have no relief against the decree and order of chancery and  that the decree and order of the court of exchequer ought to have be agreeable  thereto in regard the say proceed in chancery be prior and that Sutton come in  pendent light be privy to all those proceed and bind thereby and ought to have  bring his suit in that court and not in the exchequer and submit to the lord  dismission of so much of his appeal as concern the decree order and proceed in  chancery and that these proceed shall be affirm wherefore and for that  appellant be by his article only oblige to procure card to grant Sutton such  lease or lease as the court of chancery enable he appellant conceive that the  exchequer have order he to procure card to make several lease to Sutton at  apportion rend such order ought to be reverse as contradictory to the proceed  in chancery and the lord affirmation thereof and that Sutton ought not to have  any lease until he hatch pay the arrear of the say ground rend incur since  Christmas and therefore appeal from the decree and order of the exchequer and  pray they may be reverse and to be general relieve in the premise Francis  brown t Newport the respondent make this case that appellant and he that  December enter into and seal article concern respondent purchase from  appellant several house and building in bear yard and thereby sir Cornwall in  consideration of l pay and secure by a mortgage of sutton estate in Surre  covenant that he will at or before the that of February then next by indenture  assign and set over to Sutton all say premise and all his estate therein free  from encumbrance and ground rend to Christmas follow with reference and accord  to certain article date that march between Gilbert late earl of Clare and  Colles John hind and also to a lease of the same date between the say earl and  hind and Cowdron and Andrew card and sir Cornwall thereby further covenant  that he will at or before say that day of February procure card to execute to  Sutton such demise and demise for such term or term as by say article lease  and a decree in chancery date saint February be enable and direct to make and  that Sutton thereupon take possession and in confidence of Bradshaw perform  his agreement lie out above l in repair the premise and make a convenient  passage thereunto and that Bradshaw from December till Hillary term decline to  make he a title in the premise Sutton in that term bring his bill in the  exchequer for a specific performance of the article and that appellant have in  his answer confess the agreement and set out a decree in chancery between the  duke of Newcastle and himself whereby lease be to be make accord to hind  article and that the ground rend shall be apportion and that June the cause be  hear in the exchequer and after a long hear it be refer to two gentleman to  arbitrate the matter and the cause to stand in the paper for the that October  follow and respondent counsel then inform the court that the referee can not  determine the matter pray judgement in the cause and no council attend for sir  Cornwall it be decree that sir Cornwall shall perform his say article in  specie literal accord to his covenant unless cause that day fortnight and then  the decree be confirm and a issue direct as state by appellant and now  appellant by his appeal endeavour to reverse the say decree and avoid his own  agreement and to keep sutton money in his pocket for nothing and object that  he can perform his own agreement and that Sutton be become the duke be tenant  and that his grace promise to lease the premise to he but the respondent  submit that the Colles er p first objection be strange in a court of equity  and if it shall be receive for doctrine and good equity that a person shall  take my money to cause and procure a three person his trustee to convey a  estate to I and then shall tell I he can prevail upon he to do it and yet will  not restore I my money or put I in the same condition he find I it will  encourage all manner of fraud and oppression of that nature and Colles few man  will be safe under any agreement especial consider sir Cornwall be of full age  know what he do and do not pretend he be impose upon by Sutton and as to the  second objection there be no such matter prove in the cause and in truth there  be no such thing neither do the duke ever accept respondent his tenant nor  promise to make he any lease but always oppose it and refuse it and the decree  and proceed in chancery be not ground on the article between sir Cornwall and  Sutton and Sutton be no party to that suit and respondent conceive no man can  be bind by a decree who be not a party to it and insist that the decree order  and proceed in the court of exchequer be agreeable to justice equity and good  conscience and that the appeal ought to be dismiss with exemplary cost and the  rather because appellant during his proceed in equity against Sutton prosecute  Sutton at commonlaw upon the say agreement and lie he in gaol for l and that  Sutton be now actual a prisoner at his suit for the same and during sutton  confinement sir Cornwall foreclose Sutton of the equity of redemption of the  mortgage estate which sir Cornwall have for the security of his l and be now  in the actual possession thereof and have be so and receive the rend and  profit thereof about l a year from the time of his article with Sutton Edm  bridge I Daniel that April sir Cornwall Bradshaw present to the lord his  petition of appeal from two decree of the court of chancery one in a cause  between John earl of Clare then duke of Newcastle and John white plaintiff  Bradshaw bridge card and other defendant and one in a cause between Bulstrode  and Bradshaw plaintiff the duke white and card defendant and also from a  decree and several order of the court of exchequer in a cause between Sutton  plaintiff and Bradshaw and other defendant and that may sir Cornwall Bradshaw  present a further petition to the lord pray that his say petition and appeal  may be dismiss as to so much of it as relate to the say decree order and  proceed have and make in the court of chancery and that the say decree order  and proceed may be affirm which be order accord and die moon June upon hear  council upon the petition Colles and appeal from the exchequer decree it be  order and adjudge by the lord that the say decree and order of the court of  exchequer do stand affirm with this alteration that the say sir Cornwall  Bradshaw do procure the say Andrew card upon the say sutton perform what by  the article mention in the say decree he be oblige to perform to execute one  or more lease for such term and estate as the say Andrew card by the say  article and the decree and order make in the court of chancery as they now  stand affirm by this house be enable and ought to do and no otherwise lord  journ vol xvi