order was afterwards signed by respondent, and attested by Ellan; and thereupon appellant immediately paid the 200l. to Ellan for respondent's use, and Ellan gave his receipt for it at the foot of said order, viz. "Received the 200l. above mentioned. J. Ellan." And appellant immediately made an entry of the payment of 200l. in his books of account accordingly, and heard no more of this matter till about April, 1693, when respondent had caused Ellan to be arrested for this and other money, and had obtained judgment against him for 700l. and taken his goods in execution; and then the respondent called on appellant to know at what time he paid Ellan the 200l. and desired to see his receipt, which appellant shewed him under his own order, of which he took a copy, and went away fully satisfied. And in Trinity Term, 1696, respondent filed a bill in Chancery against appellant and Ellan, charging a confederacy and contrivance to cheat respondent of the 200l. pretending that although he had given appellant an order to pay it to Ellan, yet that order was surreptitiously obtained by Ellan, and that appellant did not really pay the money, but either discounted a debt Ellan owed appellant, or if he did pay it, received it back immediately for his own [93] use, or that appellant suspected Ellan's fidelity, and should not have paid the money notwithstanding the order, and prayed to be relieved against appellant for this 200l. Appellant answered, and swore he really and bona fide paid the 200l. to Ellan for respondent's use, and did not know or remember he discounted any debt due to himself, nor that he received back any part of the money, and denied all contrivance or combination to defraud respondent, or that he mistrusted Ellan; but it being transacted four years before, could not remember in what specie ho paid it, having taken no other notice of it in his books than that it was actually paid; and appellant submitted that if all merchants, who could not after four years tell in what specie they paid their debts, should be obliged to pay them over again, it would occasion the greatest loss that ever happened on the Exchange of London, and that if in any way of trade one man should be obliged to declare what suspicion he may have of another, it would be of very dangerous consequence, and men would be undone by relating that of others which they could not prove, and the others by having that related of them which is not true. And shewed that Ellan continued in his house and business near eighteen months after he received the 200l. from appellant, and that respondent having Ellan under execution, Ellan and he combined to put this 200l. on appellant, and to make him pay it over again; for which end respondent never compelled Ellan to answer his bill; but about twelve months after appellant had answered respondent, struck Ellan out as a defendant, and examined him as a witness, who through favour to respondent, and to clear himself, swore appellant paid him no money at all; but that being indebted to him, and so in his power, he was forced to give him a receipt for the money though not received; but Ellan shewed no circumstance of any debt due by him to appellant, nor any writing under appellant's hand, so that appellant insisted this deposition of Ellan had no probabilty or colour of truth; and supposing Ellan admitted to be read as witness, (which appellant insisted he ought not, he evidently swearing to discharge himself) yet little credit ought to be given to his testimony, and that there was no proof of any fraud or contrivance save by Ellan's deposition. And appellant shewed further, that respondent had all along trusted Ellan, and when the order was brought to respondent [94] to sign, to impower Ellan to receive the 200l. no constraint was used to him, and he had thought fit to trust Ellan to receive the money.
The cause was heard 11th February, 1697, before Mr. Justice Turton, the Lord Chancellor being then indisposed) and respondents council strongly urged that Ellan's depositions might be read, which was denied; Justice Turton observing, that what Ellan was said to swear was contrary to his own receipt, and tended to discharge himself, not only from the 200l. but also from respondent's judgment and execution against him, and that he had sworn himself guilty of a very great fraud; and if such evidence were allowed it would be a great obstruction to all trade, and no man would be safe in the payment of his debts; and thereupon Mr. Justice Turton decreed for the appellant, and dismissed the bill with costs. But respondent petitioned the Lord Chancellor for a re-hearing, which was granted, and the cause was accordingly re-heard 1st June, 1698, and his Lordship per-
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