no proof that the appellant agreed that the rent should be applied to sink the interest, and the Court at the hearing made no decree or order for that purpose, though it was expressly in issue, and particularly insisted on by respondent: And though appellant were to be charged with the rent in default of Edward, yet he was not to answer the rent otherwise than as a security, and the account for that ought to be taken separately, and not introduced into the mortgage account, no more than the money due to appellant for goods left to Sir Thomas at the time of the sale, which was decreed to appellant, but ordered not to be brought into the mortgage account. And appellant further objected, that there was no order or direction for his being allowed (though ordered to stand in Edward's place) the 14l. a year in lieu of the boots, nor for losses by overflowing of the river, nor for any allowance for the time the Earl of Torrington and Philadelphia herself possessed considerable parts of the farm. And that appel-[89]-lant ought not to have been decreed to pay respondent's costs in Edward's cause; for that Edward owned the suit brought in his name; which suit was moreover just against the respondents, Cottons, to have allowances for the boots, &c. and to be relieved against the 2000l. bond. And insisted that a perpetual injunction ought not to have been decreed to restrain appellant from proceedings against Edward, on the counter-bond of 4000l. when it appearing Edward held the land till he assigned to Gosling in 1684, and no proof that he ever paid a penny rent to appellant, nor that appellant was indemnified by Edward against the rent; and that, as the account was decreed to be taken, respondents, Cottons, would not only have the rent but interest for it, though the interest of the mortgage money would not be reduced to the principal monies, but would continue dead near ten years together, the rent (if allowed) and other payments not answering the interest to the appellant for so long time. And lastly, that respondents, Cottons, had been the occasion of these suits, by not bringing Edward to a hearing, though originally made a party, or adjusting their separate account with him for the rent. (P. Bowes. John Squibb.)
The respondents on the other hand showed, that about October, 1681, on Sir Thomas's being appointed Governor of Jamaica, he stated an account with appellant, and paid him then and several times before 1360l. part of the principal money due on the mortgage, and that at Michaelmas, 1681, 5000l. only was due, towards sinking the interest of which sum, the rent of the said farm was to go, and that this appeared by a receipt and letter under appellant's own hand; and that respondents having filed their said bill against appellant, appellant exhibited his cross bill to open the stated account, and to foreclose the equity of redemption. And it was on hearing both causes decreed, that appellant should be at liberty to falsify the account, and it was referred to Sir Lacon William Child to take the account; and if any difficulty arose the Master was to report specially; and that the Master took the account, and certified the matter touching the rent of the farm specially: On arguing which, and on appellant's then alleging that respondents had for some time possession of some part of the farm, it was ordered back to the said Master to examine how long respondents, or Edward Doughty, appellant's [90] brother, or one John Gosling, were in possession, and of what part; and the rent of the farm was to be applied to sink the interest due on the mortgage; and the Master certified that Edward and Gosling were in possession of the said farm during the term of said lease; and nine years rent (2205l.) due to respondents, but did not then apply same towards sinking the interest. And appellant petitioned the Chancellor to rehear the special matter touching the rent; and on the re-hearing, it was ordered that appellant should stand in the place of Edward his brother, who it appeared was only a servant or agent under appellant; and that the rent of the said farm, after all allowance according to the said lease, should go in discharge of the interest of the said mortgage. And that respondents endeavoured to procure the Master's report, and the Master was several times attended; but appellant, for delay, and to create expence, procured a bill to be exhibited by Edward against respondents, and appellant himself to be made a defendant thereto, which the respondents answered, and witnesses were examined; and the causes coming to be heard, 1st March, 1698, the Chancellor, before he would deliver his opinion, ordered that it should be referred to the Master to examine, at whose instance that bill was brought and carried on; and the parties
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