case Charles mason appellant sir Bibi lake and other respondent that may in  what case a bill for a discovery may after a demurrer be amend by wave all  penalty and forfeiture viner vol p can Eq can ab can the appellant in the year  and as treasurer of the transport be concern in the receipt and payment of the  public money allot for that service and be recommend to the respondent Joseph  and George Newell who be banker in lombardstreet he from time to time lodge  large sum in their hand as well of the public money as his own and which he  draw out again in the usual manner as his occasion require during the  continuance of this connection the Newells be several time under difficulty  for want of money but whether because the appellant have overdraw they to the  amount of pound and upward as they allege or whether because they be oblige to  make considerable payment into the exchequer brown do not clear appear thus  much however be certain that the Newells prevail with the appellant to assist  they in borrow money on the credit of his own estate for the purpose either of  satisfy his debt to they or in order to enable they to support their credit  with other and the method suggest by they for procure this accommodation be  that Thomas lake Esq a barrister at law and a intimate friend of the Newells  will lend they for a month or two or some such short space of time whatever  money they want if for secure the repayment thereof they will give he their  own cash note Payable to bearer on demand and if the appellant will make a  mortgage of some part of his estate redeemable at the day the money borrow be  propose to be repay which cash note together with the mortgage be to be leave  in Mr lake hand and when the time be expire the Newells be to pay the money  and take up their note and thus the appellant mortgage will be satisfy this  method be accord put in practice in relation to three several sum of pound  each which be borrow of lake in march and in April and may and when the  respective time for redeem these mortgage be expire lake deliver out and the  Newells punctual discharge their cash note and so those mortgage be full  satisfy some time afterward the Newells have a further occasion for money  borrow of Mr lake pound and as they have punctual satisfy the appellant former  mortgage he be the more easy prevail upon to assist they in negotiate this  fresh loan accord on the that of September the Newells give five cash note for  pound each Payable to the respondent turner or bearer on demand and on the  same day the appellant make a mortgage for year of all his estate in the  county of Montgomery and Salop to one pain in trust for lake redeemable on  payment of the say pound and interest on the that of November then next this  mortgage brown er p together with the five cash note be leave in lake hand and  for advance this money and other pretend service he take a gratuity from the  Newells of two hundred guinea Mr lake after this transaction advance large sum  of money to the Newells and take other security from they for the repayment  thereof particular the sum of pound on the security of a leasehold estate in  ken and several goldsmith note and another sum of pound on certain malt tally  debenture and other goldsmith note in the interim the time for payment of the  pound elapse but Mr lake in order to favour the Newells from who he have  receive so large a gratuity for advance that sum omit to deliver out their  five cash note for pound each for payment and keep they in his own custody  from the that of November when the money become due till the that of December  follow whereas during all the intermediate time the Newells be in full credit  and have not less than pound run cash in the bank brown of England so that the  whole of this pound may have be recover if demand but on the say that of  December the Newells be seize in their shop upon a extent at the suit of the  crown and thereupon total fail whereby their five cash note which lake have  neglect to receive become of no value there be a prior mortgage on the  appellant Montgomeryshire and Shropshire estate to one mrs Tighe for pound  lake without the appellant privity procure a assignment of it and then not  only bring ejectment to recover the possession of the mortgage premise but in  easter term he file his bill in chancery to foreclose the equity of redemption  in Hilary term follow the appellant file his cross bill to be relieve against  this mortgage upon the nature and hard circumstance of his case or that at  least he may have the benefit of all such sum and security as lake or any  person for he have take and receive from the Newells the bill also pray a  redemption of mrs Tighes mortgage a reassignment of the three satisfy security  and a discovery of the transaction relative to the gratuity of two hundred  guinea to this bill lake at first demurrer for that such a discovery may make  he liable to some or one of the penal law of this kingdom but upon argue this  demurrer the bill be order to be amend by wave all penalty and forfeiture and  thereupon lake put in three insufficient answer and have stand in contempt to  a commitment he die before he have full answer the bill have make his will and  thereof appoint his son the respondent sir Bibi lake sole executor both these  cause have be revive be hear together before the Lord chancellor Harcourt on  the that of December when it be decree that as to the three satisfy mortgage  they shall be reassigned and the deed and write relate thereto deliver up to  the appellant but as to the other security it be refer to a master to see what  be due on the mortgage of the that of September for principal and interest and  also for the pound pay on take in the assignment of Tighes mortgage but the  master be not to compute interest on what be pay to mrs Tighe for interest as  to cost his lordship do not think fit to give any to sir Bibi lake to the hear  but he be from thenceforth to have his cost in both cause to be tax by the  master and what upon the say account the master shall find and certify to be  due for principal money and interest on the say mortgage of the that of  September and in respect of the pound and the interest thereof from the time  of mrs Tighes assignment and in respect of such interest as be pay to mrs  Tighe at the time of take that assignment together with sir Bibi lake cost of  these suit from the time of the hear be to be satisfy by sale of a competent  part of the appellant estate in the county of Montgomery and Salop but in case  such sale can not he have within a year sir Bibi lake be to be at liberty to  apply to the court for further direction touch the brown foreclosure pray by  his bill and it be further order that the master shall take a account of all  deal and transaction between the appellant and the Newells and for what brown  er p they shall appear to owe he he be to come in as a creditor with the rest  of their creditor but if he shall appear to be indebt to they the same be to  be raise by sale of a further part of his estate after sir Bibi lake be  satisfy and it be further order that these several account shall be take  separate and distinct and not stay the one for the other and the cash note for  the pound be order to be allow in the account and thereupon to be deliver up  in pursuance of this decree the three satisfy mortgage be reconvey to the  appellant and on the that of November the master by his report certify that  there be due to sir Bibi lake for principal interest and cost pound os d to  this report the appellant take exception which be argue be overrule and  thereupon the report be absolute confirm on the that of January the appellant  estate direct to be sell be put up to sale before the master pursuant to  advertisement in the gazette for that purpose and one Mr Newton be allow and  certify to be the purchaser of the same at the sum of pound but before this  sale be complete the present appeal be bring in order to obtain a reversal of  so much of the decree tend to charge the pound and interest on the appellant  estate or to sell the same for satisfaction thereof and in support of the  appeal it be argue r Raymond I Hungerford that it appear from the answer in  the cause that the money be borrow for and actual receive by the Newells and  apply to their use and from the nature of the whole transaction it be manifest  that the pound as well as the several sum secure by the three former mortgage  now admit to be satisfy be lend by lake to the Newells on their cash note that  they be his principal debtor and that the security upon the appellant estate  be only in the nature of a collateral security and in the instance of the  three former satisfy security it be plain that lake himself think so for he  receive his satisfaction by the cash note of the Newells and never in the  least attempt to resort to the appellant estate that on the that of November  when the pound mortgage become Payable lake have his satisfaction in his own  hand the Newells be then and to the that of December follow banker in full  credit and pay all their note and other demand make upon they during that time  as punctual as the bank of England and since lake wilful omit to receive or  call for this pound for sixteen day after he may have receive the same and be  induce to do so by have take such a unjustifiable premium as two hundred  guinea for lend his own money it be insist that lake during that time keep the  say note upon his risk and hazard and that the appellant ought to be discharge  of the pound in the same brown manner as if he have draw note upon the Newells  for pound Payable to lake and that he afterward have keep such note above  three day without receive the same in which case the appellant even at law  will have be discharge of such note and not continue answerable for any part  of the money thereby make Payable for that by the statute of and Ann c it be  in the case of accept and protest inland bill of exchange express declare and  enact that if any such bill be accept and not pay within three day after the  same become due the drawer shall not be compel to pay any cost damage or  interest unless a protest be make and notice give thereof in the manner  therein mentioned And that if any person accept such bill of exchange in  satisfaction of any former debt or sum of money former due to he it shall be  account and esteem full and complete payment of such debt if such person do  not take his due course to obtain payment thereof by endeavour to get it  accept and pay and make his protest as thereby direct either for not  acceptance or nonpayment the appellant therefore submit to the justice and  consideration of the house whether his case be not within the equity and  meaning of this statute as in the preamble thereof goldsmith note be express  mention but it be further argue that no account be direct by the decree as  between lake and the Newells whereby it may have appear whether by the money  and security which lake receive and take from they the pound or any and what  part thereof be satisfy or secure nor have the decree direct that the  appellant shall be allow what lake or any for he have receive from or by the  order of the Newells after the that of November brown er p or that the  appellant shall have the benefit of such money or security as lake have from  the Newells and which ought the rather to have be direct for that in such  security it be provide that the same shall secure what lake do or shall  advance or lend to the Newells and the wilful assignment of such security or  the give to any other creditor of the Newells a preference to the pound so owe  by they to lake on their note be a further act of injustice in lake and a  additional evidence of the effect which the gratuity of two hundred guinea  have upon he it be therefore hope that the decree so far as it charge the  appellant or his estate with the pound and interest will be reverse and that  he shall be permit to redeem his estate upon payment of what lake have pay to  mrs Tighe with interest for the principal money only and such cost as the  decree have direct on the other side it be contend I Jekyll t Lutwyche that  upon full and clear proof and upon the appellant own confession in his answer  the respondent sir Bibi lake appear to be a honest creditor for pound actual  pay by his testator to the appellant himself that the appellant not only  acquiesce under the decree for above three year but by his subsequent proceed  thereupon have comply therewith by enter into and litigate the account brown  thereby direct and by set up a purchaser and proceed to a sale of the estate  in order to pay the debt which he now think proper to controvert that the  appellant be in possession of the estate reconvey to he by virtue of another  branch of the decree against which he now appeal that his whole equity in  respect of the pound be find upon groundless and improbable conjecture without  the least shadow of proof and contradictory to his own act and deed manifest  in several successive conveyance under his hand and seal and that it do not  appear by any of the appellant proof that the respondent the Newells be any  way indebt to he but on the contrary it appear by undeniable evidence in both  cause that the appellant be at the time of make the pound mortgage and still  remain very great indebt to the Newells after hear counsel on this appeal it  be order that the house will reserve give judgement on the point in question  till the account be finish between the appellant and the Newells as direct by  the court of chancery with this direction that the master shall also make a  rest how the account stand on the that of September and that sir Bibi lake  shall have notice give he from time to time of the attendance before the  master and may controvert the same as he shall be advice and that either side  shall be at liberty to apply to the court of chancery for any further  direction for the better take of such account as shall be just and that after  such account take and a report make and confirm the party be to resort back  for the further order of the house jour vol p this case will not have be  insert in the present collection if it have not receive a final determination  by the same judicature which will appear in its proper place brown er p