Page:The English Reports v1 1900.pdf/1152

£2062 13s. 8½d. in three months after the date thereof, with interest for the same, from the 23d of October 1724, to which time the interest for the said £2700 was computed by the Deputy Remembrancer; and that the mortgage deed, bond, and defeazance, given by the respondent to the appellant, should be forthwith delivered up to the respondent.

From this decree and order the appellant appealed, insisting (P. Yorke, C. Wearg), that there was no manner of proof in the cause, for what sum the subscription receipt No. 195 was sold, or that it was ever sold at all, and much less by the appellant. That he kept another subscription receipt by him, to be delivered to the respondent, in case he had paid the money due to the appellant, of equal value with that deposited by him; and there was no more difference between one subscription receipt and another for the same sum, than there was between one £100 stock and another £100 stock. That under these circumstances there was no foundation for a Court of Equity, to give the respondent such relief as had been decreed him; and therefore it was hoped, that the decree would be reversed, and an account directed to be taken of what was due to the appellant for principal, interest, and costs, deducting the £95 12s. 9d. received by him for the sale of the subscription receipt No. 338; and upon payment of what should be so reported due, by such time as should be appointed for that purpose, the respondent might be relieved against the penalty of the bond, and the mortgaged estate be reconveyed; but in default thereof, that the respondent's bill might be dismissed with costs.

On the other side it was contended (T. Lutwyche, C. Talbot), that the decree, order, and proceedings, were just and equitable, for that it did not appear, nor was proved in the cause, when, or at what time, the appellant first had the subscription receipt No. 338, or how long he kept it by him; and therefore he might, consistently with his answer, have bought in that receipt at a low price, after he had sold out the respondent's receipt No. 195, for £2700. That this receipt was fully proved to have been actually sold for that sum, and therefore no issue was needful to be directed, nor was any prayed or insisted on, to try that fact; the only doubt with the court being, whether the receipt No. 195 was deposited by the respondent, because the appellant might have come by it some other way. That the appellant not only acquiesced under the decree, but likewise made a full defence, both at the hearing of the cause, and at the trial of the issue; and afterwards, when the cause came back upon the equity reserved. That the decree was only conformable to the appellant's agreement, who covenanted by the defeazance, that if he sold the subscription receipt No. 195, therein mentioned, to be deposited with him, and so found to have been upon an issue directed only for that purpose, he would account with and pay the respondent, the surplus of the money for which he should sell the same, after a deduction of what was due [567] to him; and if there had been no such covenant, yet the appellant ought nevertheless to be accountable to the respondent for the money raised by sale of the said receipt; and therefore it was hoped, that the appeal would be dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed and it was further ordered, that the appellant should pay to the respondent the sum of £40 for his costs in respect of the said appeal. (Jour. vol. 22. p. 608.).