case John Oldbury merchant appellant Owen win gentleman respondent the  appellant show that about may Ellan a scrivener be to advance l to dr triplet  on a mortgage of ground rend in London apply to respondent his client to lend  it who pretend to be then out of cash but tell Ellan if he can get any person  to advance the money for the present respondent expect money in a month and  will then advance the l and take a assignment of the mortgage to himself and  that Ellan thereupon apply to appellant who at first refuse but at ellans  importunity and tell he if he advance l respondent will lend l and appellant  shall take the mortgage in his own name and respondent will in a month take a  assignment and repay appellant the l with the interest again appellant in  kindness to Ellan consent to lend the l and that thereupon Ellan receive l  from respondent for which he give his own receipt as part of the l to be  advance upon the mortgage but respondent who be altogether a Colles stranger  to appellant never appear in the business but leave it entire to Ellan and  appellant never give any note or other engagement for the l and about saint  may Ellan pay triplet l and the appellant pay he l and take a mortgage from  triplet in his own name for l and in about two month after appellant call on  Ellan to get respondent to pay the l and take a assignment of the mortgage who  after frivolous excuse at length tell he respondent mind be alter but he Ellan  will get some other person and accord that October procure one Atkinson who  pay l and take a assignment of the mortgage from appellant and then Ellan  desire the appellant to pay he the l for respondent which the appellant refuse  unless by a write order front respondent and Ellan desire appellant to write  such a order as will satisfy he appellant write a order in these word Mr  Oldbury see I do not proceed to take off the mortgage Mr triplet make to you  as I intend I pray pay the l former advance thereupon to Mr James Ellan for my  use who receipt shall be your discharge witness my hand the that October which  Colles er p order be afterward sign by respondent and attest by Ellan and  thereupon appellant immediate pay the l to Ellan for respondent use and Ellan  give his receipt for it at the foot of say order videlicet receive the l above  mention I Ellan and appellant immediate make a entry of the payment of l in  his book of account accord and hear no more of this matter till about April  when respondent have cause Ellan to be arrest for this and other money and  have obtain judgement against he for l and take his good in execution and then  the respondent call on appellant to know at what time he pay Ellan the l and  desire to see his receipt which appellant show he under his own order of which  he take a copy and go away full satisfy and in Trinity term respondent file a  bill in chancery against appellant and Ellan charge a confederacy and  contrivance to cheat respondent of the l pretend that although he have give  appellant a order to pay it to Ellan yet that order be surreptitious obtain by  Ellan and that appellant do not real pay the money but either discount a debt  Ellan owe appellant or if he do pay it receive it back immediate for his own  Colles use or that appellant suspect ellans fidelity and shall not have pay  the money notwithstanding the order and pray to be relieve against appellant  for this l appellant answer and swear he real and good fide pay the l to Ellan  for respondent use and do not know or remember he discount any debt due to  himself nor that he receive back any part of the money and deny all  contrivance or combination to defraud respondent or that he mistrust Ellan but  it be transact four year before can not remember in what specie he pay it have  take no other notice of it in his book than that it be actual pay and  appellant submit that if all merchant who can not after four year tell in what  specie they pay their debt shall be oblige to pay they over again it will  occasion the great loss that ever happen on the exchange of London and that if  in any way of trade one man shall be oblige to declare what suspicion he may  have of another it will be of very dangerous consequence and man will be undo  by relate that of other which they can not prove and the other by have that  relate of they which be not true and show that Ellan continue in his house and  business near eighteen month after he receive the l from appellant and that  respondent have Ellan under execution Ellan and he combine to put this l on  appellant and to make he pay it over again for which end respondent never  compel Ellan to answer his bill but about twelve month after appellant have  answer respondent strike Ellan out as a defendant and examine he as a witness  who through favour to respondent and to clear himself swear appellant pay he  no money at all but that be indebt to he and so in his power he be force to  give he a receipt for the money though not receive but Ellan show no  circumstance of any debt due by he to appellant nor any write under appellant  hand so that appellant insist this deposition of Ellan have no probability or  colour of truth and suppose Ellan admit to be read as witness which appellant  insist he ought not he evident swear to discharge himself yet little credit  ought to be give to his testimony and that there be no proof of any fraud or  contrivance save by ellans deposition and appellant show further that  respondent have all along trust Ellan and when the order be bring to  respondent Colles to sign to empower Ellan to receive the l no constraint be  use to he and he have think fit to trust Ellan to receive the money the cause  be hear that February before Mr justice Turton the Lord chancellor be then  indispose and respondent council strong urge that ellans deposition may be  read which be deny justice Turton observe that what Ellan be say to swear be  contrary to his own receipt and tend to discharge himself not only from the l  but also from respondent judgement and execution against he and that he have  swear himself guilty of a very great fraud and if such evidence be allow it  will be a great obstruction to all trade and no man will be safe in the  payment of his debt and thereupon Mr justice Turton decree for the appellant  and dismiss the bill with cost but respondent petition the Lord chancellor for  a rehear which be grant and the cause be accord reheard saint June and his  lordship per Colles er p mitting ellans deposition to be read reverse the  former decree and decree that appellant shall pay respondent so much of the l  with interest since may as respondent have not receive from Ellan together  with cost which will amount to above l and that appellant shall be at liberty  to sue Ellan in respondent name give security to save he harmless that some of  appellant council be absent at the last hear he be advice to petition for a  rehear which be grant and the that November the chancellor confirm his former  decree against appellant from both which decree and all the proceed appellant  appeal and pray that both the last decree may be reverse and the decree  pronounce by Mr justice Turton affirm con Phipps the respondent in affirmance  of the last decree state that appellant have l due to he on a mortgage of dr  triplet estate and commission James Ellan his scrivener to get some body to  lend that sum upon a assignment of the mortgage and that Ellan apply to  respondent and respondent agree in case the title shall be approve of and  actual deliver to Ellan a goldsmith note for l in part of the l which be to be  repay in case the title be not approve of and this note for l Ellan deliver to  appellant who Colles receive the money upon it and that respondent council not  approve of the security respondent demand the l back but be amuse from time to  time about six month and appellant have great sum of money owe to he from  Ellan which he suspect Ellan be unable to pay contrive with Ellan to retain  respondent l for so much of ellans debt and to get a colourable discharge from  respondent in order to which fraud appellant refuse to send respondent any  bill on a goldsmith as respondent have desire but with his own hand write the  artful note or order state by appellant and instruct Ellan to tell respondent  that he appellant dislike the method propose and rather than trouble any  goldsmith therein desire respondent to sign that note and he will pay the  money down and when Ellan with these pretence have prevail with respondent to  sign the note appellant procure Ellan to sign a receipt under the say order as  if he have actual receive the say l for respondent use whereas in truth  appellant pay not one penny to Ellan but retain the l towards satisfaction of  ellans debt to he and Ellan soon afterward abscond and the appellant insist  that he have pay the l to Ellan respondent follow Ellan but can never get more  of he than l S in part of interest and sue he to judgement this fraud lie  conceal for about three year but as soon as the respondent discover it he  bring his bill in chancery and on the first hear before justice durton the  bill be dismiss with cost ellans deposition not be suffer to be read but upon  a rehear before the Lord chancellor respondent council insist that Ellan stand  indifferent between the party and can neither gain nor lose by the cause it be  all one to he whether he shall be debtor to one or though other and be  therefore a good witness and that ellans evidence be confirm by appellant  answer he confess that Ellan do tell he that respondent desire appellant to  send he a goldsmith note or bill of exchange for the l and that the appellant  reply he will have no goldsmith note nor shall a bill lie out against he and  that appellant write the artful note aforesaid with his own hand beside  appellant answer be falsify by two witness beside Ellan in that part for it be  prove by these two witness that he do at that time transact his great payment  by goldsmith note but in that Colles method he can not have effect his intend  fraud and appellant in his answer to that part of the bill which press he to  discover how when and where he pay the l to Ellan artful say he pay the l to  Ellan but how whether all in money or by goldsmith or other note or whether at  home or at a goldsmith or at scrivener or where or how can not tell and  appellant insist that Ellan be no more than a servant or messenger in this  case his receipt without have the l actual pay he do not discharge respondent  debt wherefore ant for other good reason the Lord chancellor allow ellans  deposition to read and declare that appellant ought to pay respondent and  decree a state by appellant which decree be confirm on a rehear solicit by  appellant and the master report l S d due to respondent for principle interest  and cost which decree respondent insist be just and reasonable Colles er p and  give relief against a new invent and dangerous fraud and ought to be affirm by  the lord t powys die MartisIt be Jan in the print journal but it be a error  for the saint the date before be Jan and the date follow Feb January upon hear  council on this appeal it be order and adjudge by the lord that the same shall  be dismiss and the decree and order complain of affirm lord journ vol xvi p