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![handle is hein.slavery/ssactsengr0701 and id is 1 raw text is: RODDAM ). HETHERINGTON
No evidence was produced on either side.
Mr. Romilly and Mr. Hall, for the Plaintiffs, observing, that the receipt, upon
which the Defendant relied, was not and could not be set up as a release, but as
evidence of a stated account, contended upon the answer, and particularly upon
the admission, as to the state of the testatrix, that the Defendant must be decreed
to account generally according to the prayer of the bill.
Mr. Short, for the Defendant, relied on this receipt as in nature of a release;
as evidence, that an account was stated, and the balance paid.
Master of the Rolls [Sir. R. P. Arden]. This receipt is not sufficient to entitle
the Defendant to set it up as an absolute bar of all demands.; when I see the answer
stating, that she did not choose to have a running account, and the other circum-
stances and admitting, that she was frequently disordered in her mind ; for from
the nature of his [91] employment he imposed upon himself the duty of keeping
accounts, not only out of justice to his employer but to himself. I do not wish to
encourage any gentleman in not keeping any accounts whatsoever. This Defendant
admits, that during the time he did receive certain sums for the use of the testatrix
he regularly accounted for them. He does not swear he kept no accounts : but
he produces none. By holding this instrument a bar I should establish an extremely
bad precedent. At the same time I do not mean to say, that in no case whatsoever
such an instrument can stand. I know the disadvantage, under which persons
in these circumstances labour in the Master's office. Suppose, she never would give
him a voucher, how could he prove payment I That perhaps, if he could prove it,
with an account kept by himself, would do. But under the circumstances dis-
closed by this answer I do not see such a case set up as will excuse him as steward
for this monstrous negligence in keeping no account whatsoever. Therefore I
am of opinion, that for the sake of the precedent I am bound to direct an account
of all dealings and transactions between the testatrix and the Defendant Sharland
concerning her estate, &c. ; and declare, that the receipt in the pleadings mentioned
is to be conclusive evidence of the payment of £280, but is not to have the effect
of a release or discharge to the Defendant. (Lord Hardwicke v. Vernon, 4 Ves.
411, and the note, 418.)
RODDAM v. HETHERINGTON. Nov. 8th, 16th, Dec. 2d, 1799.
Affidavit to support a writ of Ne ezeat Regno must be positive. Writ of Ne exeat
Regno, obtained by a resident here against a resident in the West Indies upon a
demand arising there, when the answer came in, was discharged under the circum-
stances, with costs against the prochein amy of the infant Plaintiff: but upon
the admissions in the answer the Defendant was ordered to give security to abide
the decree.
Mr. Piggott moved before the Master of the Rolls, sitting for the Lord Chancellor,
that the writ of Ne exeat Regno might issue against the Defendant, to be marked
for the sum of £2000.
This application was made upon an affidavit by the Plaintiff, who was of the age
of eighteen, stating his title under the wills of his father, who died in 1784, at the age
of twenty-two, and his uncle William Adamson, who died in 1772, to their real
and personal estates, and particularly to a plantation purchased by Adamson
in the island of Tortola ; that the Defendant, the executor of Adamson [921 possessed
himself of all his effects, and had the management of the plantation ; that he refused
to account, though often applied to; that the plantation was negligently and
improperly managed by the Defendant ; and that divers sums pretended to be paid
on account of the testator Adamson were not paid, or were not really due, with
other general allegations of improper conduct that the Plaintiff is informed and
believes, that there is due and owing from the Defendant in respect of his receipt
of the rents and profits of the testator's real and personal estates upwards of £2000,
and the Defendant intends to go abroad, and there is reason to believe the money
will be lost.
The Master of the Rolls would not make the order; the affidavit not being
positive, but to information and belief only ; observing, that it must be as positive
as an affidavit to hold to bail ; and that this affidavit was defective in other respects,
5 V/S. MsL. 91.](ViewImageLocal?handle=hein.slavery/ssactsengr0701&div=1&collection=&method=preview&ext=.png&size=3)