Page:The English Reports v1 1900.pdf/1150

On the 5th of August 1720, the respondent borrowed of the appellant ₤1100, and for securing the re-payment thereof, not only gave him a bond in the penalty of £2200, but likewise deposited with the appellant, a receipt for £500 in the second money-subscription, taken in by the South-Sea Company, numbered 195: and, by an indenture of defeazance of the same date, the appellant covenanted and agreed with the respondent, that if he paid the £1100 pursuant to the condition of the bond, then the appellant would assign to the respondent the said subscription receipt, and also pay and account with him, for all dividends and payments that should be made thereon in the mean time. And the respondent agreed, that if the said subscription receipt should be of less value than £1200 before the bond was discharged, that the appellant should sell the same towards satisfaction of the debt, in case the respondent should not give such security as should be approved of by the appellant, within three days after notice in writing; and that if default should be made in payment of the £1100 contrary to the said bond, then it should be lawful for the appellant to sell the said subscription receipt, and to apply the money arising thereby towards payment of the said £1100. And the appellant agreed to account with the respondent for the over-plus raised by such sale.

This sum of £1100 being made payable on the 5th of November then next, the interest thereof for that time being three months was calculated, and the appellant stopt £55 as the amount of such interest; so that the respondent received no more than £1045, and for that reason no mention was made of interest in the bond.

[564] The subscription receipt so deposited, was expressly described in the defeazance, to be marked or numbered 195, and the number thereof was carefully compared and examined with the receipt, before the executing of the indenture and it was also fully proved in the cause, by the person who engrossed the said indenture and examined the number of the receipt. But before the £1100 became payable, the price of stocks having considerably fallen, and the appellant pretending to he uneasy thereat, the respondent made him a mortgage of an estate in Childwell, in the county of Lancaster, of £45 per annum, for better securing the payment of the said £1100, and on the 21st of April 1722, the respondent paid the appellant £100 in part of the principal money which he then thought to be due and owing from him.

But some time afterwards the respondent discovered, that within four or five days after the pledging of the said subscription receipt No. 195, with the appellant for the purposes aforesaid, the same was sold for £2700, and the appellant refusing to make the respondent any satisfaction on account thereof, he, in November 1722, exhibited his bill in the Court of Exchequer against the appellant, praying that he might come to an account with him, for the money raised by sale of the said £500 subscription receipt and pay him the overplus, after a deduction of what was due to him in respect of the £1100 so borrowed of him as aforesaid, according to his own