mitting, Ellan's deposition to be read, reversed the former decree, and decreed that appellant should pay respondent so much of the 200l. with interest, since May, 1692, as respondent had not received from Ellan, together with costs, which will amount to above 350l. and that appellant should be at liberty to sue Ellan in respondent's name, giving security to save him harmless. That some of appellant's council being absent at the last hearing, he was advised to petition for a re-hearing, which was granted; and the 14th November, 1698, the Chancellor confirmed his former decree against appellant. From both which decrees, and all the proceeding, appellant appealed, and prayed that both the last decrees might be reversed, and the decree pronounced by Mr. Justice Turton affirmed. (Con. Phipps.)
The respondent in affirmance of the last decree stated, that appellant had 500l. due to him on a mortgage of Dr. Triplet's estate, and commissioned James Ellan, his scrivener, to get some body to lend that sum upon an assignment of the mortgage, and that Ellan applied to respondent, and respondent agreed, in case the title should be approved of, and actually delivered to Ellan a goldsmith's note for 200l. (in part of the 500l.) which was to be repaid in case the title was not approved of; and this note for 200l. Ellan delivered to appellant, who re-[95]-ceived the money upon it; and that respondent's council not approving of the security, respondent demanded the 200l. back, but was amused, from time to time, about six months. And appellant having great sums of money owing to him from Ellan, which he suspected Ellan was unable to pay, contrived with Ellan to retain respondent's 200l. for so much of Ellan's debt, and to get a colourable discharge from respondent; in order to which fraud appellant refused to send respondent any bill on a goldsmith as respondent had desired, but with his own hand wrote the artful note or order stated by appellant, and instructed Ellan to tell respondent that he, appellant, disliked the method proposed, and rather than trouble any goldsmith therein, desired respondent to sign that note, and he would pay the money down; and when Ellan, with these pretences, had prevailed with respondent to sign the note, appellant procured Ellan to sign a receipt under the said order as if he had actually received the said 200l. for respondent's use; whereas in truth appellant paid not one penny to Ellan, but retained the 200l. towards satisfaction of Ellan's debt to him, And Ellan soon afterwards absconded, and the appellant insisting that he had paid the 200l. to Ellan, respondent followed Ellan, but could never get more of him than 11l. 10s. in part of interest, and sued him to judgment. This fraud lay concealed for about three years; but as soon as the respondent discovered it he brought his bill in Chancery, and on the first hearing before Justice Turton the bill was dismissed with costs, Ellan's depositions not being suffered to be read. But upon a re-hearing before the Lord Chancellor, respondent's council insisted that Ellan stood indifferent between the parties, and could neither gain nor lose by the cause; it being all one to him whether he should be debtor to one or the other, and was therefore a good witness; and that Ellan's evidence was confirmed by appellant's answer, he confessing that Ellan did tell him that respondent desired appellant to send him a goldsmith's note or bill of exchange for the 200l. and that the appellant replied he would have no goldsmith's note, nor should a bill lie out against him, and that appellant wrote the artful note aforesaid with his own hand; besides appellant's answer was falsified by two witnesses besides Ellan, in that part; for it was proved by these two witnesses that he did at that time transact his great payments by goldsmith's notes; but in that [96] method he could not have effected his intended fraud. And appellant in his answer to that part of the bill, which pressed him to discover how, when, and where he paid the 200l. to Ellan, artfully said he paid the 200l. to Ellan, but how, whether all in money, or by a goldsmith's or other notes, or whether at home or at a goldsmith's, or at a scrivener's, or where, or how, could not tell. And appellant insisted that Ellan being no more than a servant or messenger in this case, his receipt without having the 200l. actually paid him, did not discharge respondent's debt; wherefore, and for other good reasons, the Lord Chancellor allowed Ellan's depositions to be read, and declared that appellant ought to pay respondent; and decreed, as stated by appellant; which decree was confirmed on a re-hearing solicited by appellant, and the Master reported 355l. 6s. 11d. due to respondent for principal, interest, and costs; which decree respondents insisted was just and reasonable,
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