Page:The English Reports v1 1900.pdf/1105

together with the five cash notes, were left in Lake's hands; and for advancing this money and other pretended services, he took a gratuity from the Newells of two hundred guineas.

Mr. Lake, after this transaction, advanced large sums of money to the Newells, and took other securities from them for the repayment thereof, particularly the sum of £1500 on the security of a leasehold estate in Kent, and several goldsmiths notes, and another sum of £1500 on certain malt tallies, debentures, and other goldsmiths notes.

In the interim, the time for payment of the £5000 elapsed, but Mr. Lake, in order to favour the Newells, from whom he had received so large a gratuity for advancing that sum, omitted to deliver out their five cash notes for £1000 each for payment, and kept them in his own custody, from the 20th of November 1707, when the money became due, till the 6th of December following; whereas during all the intermediate time the Newells were in full credit, and had not less than £50,000 running cash in the Bank [497] of England, so that the whole of this £5000 might have been recovered, if demanded.

But on the said 6th of December 1707, the Newells were seized in their shop, upon an extent at the suit of the Crown, and thereupon totally failed; whereby their five cash notes, which Lake had neglected to receive, became of no value.

There being a prior mortgage on the appellant's Montgomeryshire and Shropshire estates to one Mrs. Tighe, for £2700, Lake, without the appellant's privity, procured an assignment of it, and then not only brought ejectments to recover the possession of the mortgaged premises, but in Easter term 1708, he filed his bill in Chancery, to foreclose the equity of redemption.

In Hilary term following, the appellant filed his cross bill, to be relieved against this mortgage, upon the nature and hard circumstances of his case, or that at least he might have the benefit of all such sums and securities, as Lake, or any person for him, had taken and received from the Newells; the bill also prayed a redemption of Mrs. Tighe's mortgage, a re-assignment of the three satisfied securities, and a discovery of the transaction relative to the gratuity of two hundred guineas.

To this bill, Lake at first demurred; for that such a discovery might make him liable to some or one of the penal laws of this kingdom: but upon arguing this demurrer, the bill was ordered to be amended, by waiving all penalties and forfeitures; and thereupon Lake put in three insufficient answers, and having stood in contempt to a commitment, he died before he had fully answered the bill, having made his will, and thereof appointed his son, the respondent Sir Biby Lake, sole executor.

Both these causes having been revived, were heard together before the Lord Chancellor Harcourt, on the 9th of December 1713, when it was decreed, that as to the three satisfied mortgages they should be re-assigned, and the deeds and writings relating thereto delivered up to the appellant; but as to the other securities, it was referred to a Master to see what was due on the mortgage of the 13th of September 1707, for principal and interest, and also for the £2700 paid on taking in the assignment of Tighe's mortgage; but the Master was not to compute interest on what was paid to Mrs. Tighe for interest. As to costs, his Lordship did not think fit to give any to Sir Biby Lake to the hearing, but he was from thenceforth to have his costs in both causes, to be taxed by the Master; and what, upon the said account, the Master should find and certify to be due for principal money and interest on the said mortgage of the 13th of September 1707, and in respect of the £2700 and the interest thereof, from the time of Mrs. Tighe's assignment, and in respect of such interest as was paid to Mrs. Tighe at the time of taking that assignment, together with Sir Biby Lake's costs of these suits from the time of the hearing, was to be satisfied by sale of a competent part of the appellant's estates in the counties of Montgomery and Salop; but in case such sale could not be had within a year, Sir Biby Lake was to be at liberty to apply to the court, for further directions touching the [498] foreclosure prayed by his bill. And it was further ordered, that the Master should take an account of all dealings and transactions between the appellant and the Newells; and for what