Page:The English Reports v1 1900.pdf/1104

should be advised; and if the respondent should plead the same matter over again, he might again amend his bill, (an experiment which the appellant had already several times tried in the course of this cause,) and so on till the court should restrain him from making any further amendment.

After hearing counsel on this appeal, it was ordered and adjudged, that the order therein complained of, should he reversed; and that the plea should stand for an answer, with liberty to except, and the benefit thereof be saved to the hearing. (Jour. vol. 31. p. 110.)

The appellant, in the years 1705, 1706, and 1707, as treasurer of the transports, was concerned in the receipt and payment of the public money allotted for that service; and being recommended to the respondents, Joseph and George Newell, who were bankers in Lombard-street, he, from time to time, lodged large sums in their hands, as well of the public money as his own; and which he drew out again in the usual manner, as his occasions required.

During the continuance of this connection, the Newells were several times under difficulties for want of money; but whether because the appellant had overdrawn them to the amount of £14,000 and upwards as they alledged, or whether because they were obliged to make considerable payments into the Exchequer, [496] does not clearly appear: thus much, however, is certain, that the Newells prevailed with the appellant to assist them in borrowing money on the credit of his own estates, for the purpose either of satisfying his debt to them, or in order to enable them to support their credit with others and the method suggested by them, for procuring this accommodation was, that Thomas Lake, Esq. a barrister at law, and an intimate friend of the Newells, would lend them for a month or two, or some such short space of time, whatever money they wanted; if, for securing the repayment thereof, they would give him their own cash notes, payable to bearer on demand, and if the appellant would make a mortgage of some part of his estate, redeemable at the day the money borrowed was proposed to be re-paid; which cash notes, together with the mortgage, were to be left in Mr. Lake's hands, and when the time was expired, the Newells were to pay the money, and take up their notes, and thus the appellant's mortgage would be satisfied.

This method was accordingly put in practice, in relation to three several sums of £2000 each, which were borrowed of Lake in March 1706, and in April and May 1707; and when the respective times for redeeming these mortgages were expired, Lake delivered out, and the Newells punctually discharged their cash notes, and so those mortgages were fully satisfied.

Some time afterwards, the Newells having a further occasion for money, borrowed of Mr. Lake £5000, and as they had punctually satisfied the appellant's former mortgages, he was the more easily prevailed upon to assist them in negociating this fresh loan: accordingly, on the 13th of September 1707, the Newells gave five cash notes for £1000 each, payable to the respondent Turner, or bearer, on demand; and on the same day the appellant made a mortgage for 1000 years, of all his estates in the counties of Montgomery and Salop, to one Paine, in trust for Lake; redeemable on payment of the said £5000 and interest, on the 20th of November then next. This mortgage,