Page:The English Reports v1 1900.pdf/397

the mortgage was extorted from the appellant when he was under the utmost distress in his circumstances, and all his creditors were falling on him, for a balance of accounts pretended to be due from him to the respondent upon his own representation, who had it in his power to impose upon the appellant, and to make or omit any entries be pleased in his books of account, having had the sole management of his affairs: And it appeared both by the respondent's answer, and by the recital in the mortgage deed, that the accounts between the appellant and respondent were not settled, but only stated by the respondent, and that upon such stating, the balance was made to be £4341 14s. 11d. It was admitted by the respondent, that at first he proposed security to he given him for £2000 only; that in a few days afterwards, he proposed the security to be for £3000 and in a few days after that for upwards of £4000 which the appellant found himself under the necessity of submitting to in his then situation of affairs, without examining the accounts; and understanding, that the mortgage was not to be an absolute security for the £4341 14s. 11d. but a security only for what, if any thing, should be really due from him to the respondent, trusting that at some future time the accounts would be fairly taken and settled; and therefore the respondent ought not to proceed at law upon the security, until the accounts between the parties should be liquidated and adjusted. That the respondent becoming partner with the appellant in 1762, upon the unreasonable terms of the appellant being bound to secure to him a profit of £200 a year at all events, afforded two very strong inferences: 1st, That there was not any thing due to the respondent at that time, upon the balance of all accounts; for if there had, the respondent would have settled and adjusted the same, before entering into such partnership. And, 2dly, That the appellant was ignorant of his affairs, and in the respondent's power, and ready to come into any terms he proposed. It was therefore hoped, that the orders complained of would be reversed, with costs, and that the injunction would be continued till the hearing of the cause, and further order.

On the part of the respondent it was insisted (A. Wedderburn, G. Scullard), that the £4341 14s. 11d. was the balance of a settled account, for securing which the appellant executed a mortgage; and that no settled account ought to be opened upon the bare suggestions of a bill in equity, especially when the truth of such suggestions is fully and substantially denied by the answer. That the paper signed by the respondent, and called by the appellant a defeazance, was nothing more than an acknowledgment on the part of the respondent, to rectify any error in the said account, which it was apprehended [9] did not open the whole account, but only the particular item or charge supposed to be erroneous. That if there was any error in this account, it was incumbent on the appellant to have pointed it out in a reasonable time, but which neither he nor his agents had been able to do during a space of eight years; on the contrary, after a careful examination, they had declared, that they were perfectly satisfied with the respondent's account, and could find no error therein. That the respondent was under no obligation to settle the appellant's books, or transact any of his affairs as clerk, after the expiration of his clerkship, especially as he had stated a very fair account between him and the appellant; and therefore, if the appellant's accounts with his other correspondents were unsettled, he ought to be at the expence and trouble of making them out, as they had no relation whatever to the respondent.

After hearing Counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the several orders therein complained of, affirmed. (MS. Jour. sub anno 1772, p. 371.)