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they should appear to owe him, he was to come in as a creditor with the rest of their creditors; but if he should appear to be indebted to them, the same was to he raised by sale of a further part of his estate, after Sir Biby Lake was satisfied: and it was further ordered, that these several accounts should be taken separate and distinct, and not stay the one for the other; and the cash notes for the £5000 were ordered to be allowed in the account, and thereupon to be delivered up.

In pursuance of this decree, the three satisfied mortgages were re-conveyed to the appellant and on the 17th of November 1715, the Master by his report certified, that there was due to Sir Biby Lake, for principal, interest, and costs, £11,557 0s. 5d. To this report the appellant took exceptions, which being argued were over-ruled, and thereupon the report was absolutely confirmed.

On the 10th of January 1716, the appellant's estates, directed to be sold, were put up to sale before the Master, pursuant to advertisements in the Gazette for that purpose; and one Mr. Newton was allowed and certified to be the purchaser of the same, at the sum of £20,500.

But before this sale was completed, the present appeal was brought, in order to obtain a reversal of so much of the decree as tended to charge the £5000 and interest on the appellant's estate, or to sell the same for satisfaction thereof.

And in support of the appeal it was argued (R. Raymond, J. Hungerford), that it appeared from the answers in the cause, that the money was borrowed for and actually received by the Newells, and applied to their use; and from the nature of the whole transaction it was manifest, that the £5000 as well as the several sums secured by the three former mortgages, now admitted to be satisfied, were lent by Lake to the Newells, on their cash notes; that they were his principal debtors, and that the security upon the appellant's estate was only in the nature of a collateral security; and in the instances of the three former satisfied securities, it was plain, that Lake himself thought so; for he received his satisfaction by the cash notes of the Newells, and never in the least attempted to resort to the appellant's estates. That on the 20th of November 1707, when the £5000 mortgage became payable, Lake had his satisfaction in his own hands; the Newells being then, and to the 6th of December following, bankers in full credit, and paying all their notes and other demands made upon them during that time, as punctually as the Bank of England. And since Lake wilfully omitted to receive or call for this £5000 for sixteen days after he might have received the same, and was induced to do so, by having taken such an unjustifiable premium as two hundred guineas, for lending his own money; it was insisted, that Lake, during that time, kept the said notes upon his own risque and hazard; and that the appellant ought to be discharged of the £5000 in the same [499] manner as if he had drawn notes upon the Newells for £5000 payable to Lake, and that he afterwards had kept such notes above three days, without receiving the same; in which case the appellant, even at law, would have been discharged of such notes, and not continued answerable for any part of the money thereby made payable: for that by the statute of 3 and 4 Ann. c. 9. it is, in the case of accepting and protesting inland hills of exchange, expressly declared and enacted,

that if any such bill be accepted and not paid within three days after the same becomes due, the drawer shall not be compelled to pay any costs, damages, or interest, unless a protest be made, and notice given thereof, in the manner therein mentioned.—And that if any person accepts such bill of exchange, in satisfaction of any former debt, or sum of money formerly due to him, it shall be accounted and esteemed a full and complete payment of such debt, if such person does not take his due course to obtain payment thereof, by endeavouring to get it accepted and paid, and making his protest as thereby directed, either for not acceptance, or non-payment.

The appellant therefore submitted to the justice and consideration of the House, whether his case was not within the equity and meaning of this statute; as in the preamble thereof, goldsmiths notes were expressly mentioned. But it was further argued, that no account was directed by the decree, as between Lake and the Newells, whereby it might have appeared, whether by the money and securities which Lake received and took from them, the £5000 or any and what part thereof, was satisfied or secured; nor had the decree directed that the appellant should be allowed what Lake, or any for him, had received, from or by the order of the Newells, after the 20th of November