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a purchaser, and for the fine and the charges he was at in such purchase, with interest at £5 per cent. and his costs of suit; and that thereupon the defendant Moore should surrender the premises to the plaintiffs, and account for the mesne profits; and that the defendant Blenkarne should pay the plaintiffs their costs; but, in default of the defendant Blenkarne's paying Moore as aforesaid, then the order of the 8th of May was to stand confirmed, with this direction, that the defendant Blenkarne should pay the defendant Moore his costs.

[280] On the 31st of December 1708, the Master reported £365 14s. 4d. due to the plaintiffs for principal, interest, and costs; but the defendant Blenkarne, instead of paying this money, appealed from all the decrees and proceedings; insisting (T. Powys, N. Lechmere), that, in point of equity, he had good right to endeavour to secure his debt, it being as just a debt as Mr. Guidott's, and due upon as high a security; and that Guidott having, by his own wilful default, lost the advantage which he had at law, he ought not now to be preferred in equity to the appellant. That if pocket surrenders should be countenanced in Courts of Equity, the lords of manors would be defeated of their just fines, and copyhold titles would become precarious and uncertain. That all the notice proved upon the appellant, prior to the purchase, amounted only to notice, that Guidott's debt was intended to be secured by a mortgage, but was really satisfied, or at least, that he had neglected to perfect his security in point of law; and the appellant conceived himself at liberty, both in law and equity, to get his own debt as well as he could, inasmuch as Guidott was likewise at liberty to deprive him of it, and pay himself, by getting the lands into his security.

On the part of the respondents Jennens and his wife, it was contended (J. Pratt, W. Guidott), that there was no colour for saying that Mr. Guidott had waived the surrender, and relied only on the bond; for that a bond is always usual on mortgages, whether by surrender of copyhold, or a conveyance of freehold lands; and there was not the least proof in the cause, of his ever having waived the surrender. That the court had upon all the hearings been of one and the same opinion, that these respondents ought to have their principal, interest, and costs; though the directions for the payment thereof, as between the appellant and the respondent Moore, had been varied. That if the appellant had taken the surrender to himself, it could not be doubted, but he would have been affected with notice; and there was no difference in reason between the taking it in his own name, or in the name of a stranger, whom ho afterwards imposed it upon. And as to the objection, that Mr. Guidott's surrender was not presented at the next court held for the manor; it was not proved, nor was it true in point of fact, that he had any notice of such court; but as the appellant had full notice of Mr. Guidott's title, he and the respondent Moore, for whom he was agent, ought to be bound by such notice.

On behalf of the respondent Moore it was insisted (J. Jekyll), that he was an innocent purchaser, without the least notice of Mr. Guidott's incumbrance; and that he had actually paid his money, and completed his title by admittance, long before he knew any thing of this mortgage. That he was admitted at a public court, where he must needs have had notice of it, if the surrender had been presented according to the custom of the manor. That the agreement with Whitelock for the lands was made by the appellant, and the surrender taken in this respondent's name, without [281] his privity or direction; that the notice of Guidott's mortgage was only given to the appellant, and it was not even pretended, that the respondent Moore had any manner of notice thereof, nntil after he was actually admitted, and had paid his money. That if Mr. Guidott's representatives were entitled to any relief, it could only be against the appellant; and as the respondent was brought before the court in the character of a fair purchaser, who had not in any shape misbehaved himself, he was justly entitled to his costs.

And accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and that the decrees, orders, and report therein complained of; should be affirmed. (Jour. vol. 18. p. 656.)