appellant, as an insurance broker and underwriter, for premiums only, amounted to £12,000 and upwards, antecedent to the 31st of December 1762.
The appellant being engaged as agent and owner of a great number of privateers, was frequently in distress for money, and borrowed several sums to a considerable amount of the respondent William Lem, who not only lent him his own money, but from motives of friendship, borrowed money of others, and stretched his credit to serve the appellant, and extricate him out of his pecuniary difficulties.
The appellant being frequently absent from London, found it necessary for the transaction of his business, to give the respondent William Lem an unlimited authority to draw on his banker, and to leave with him blank papers signed with the appellant's name, which is usual among merchants, when they place a confidence [4] in their clerks; but the respondent constantly accounted with the appellant, when he returned to town, for all money paid and received in consequence of such authority.
The appellant finding his want of money increase, as well from his extravagant manner of living, as from his losses in his new trade of privateering, was reduced to the necessity of mutually borrowing and lending his name to notes and bills, payable at a future day, in order to raise money by discount; a great part of which passed through the hands of the respondent William Lem, but no entries were made, either of the receipt or payment of many of such notes and bills, because they were generally destroyed as soon as they had served their purpose, so that no trace remained of the transaction.
The respondent William Lem was so fully employed in raising money, and transacting the business of the privateers, that he had no time even to post the appellant's books, much less to balance them; of which the appellant was so sensible, that he hired one Richard Postlethwaite for that purpose, and the respondent William Lem was obliged to leave the appellant's books at the expiration of his clerkship unbalanced, as he received them from William Hunter, the appellant's former clerk.
On the 20th of February 1762, the appellant executed a deed of copartnership between him and the respondent, in consideration, among other things, that the respondent might, by means of his credit, raise money to enable the appellant to carry on his business. And he accordingly continued to advance money for the use of the appellant, from time to time, so that the debt due to the respondent in the year 1762 amounted to £4341 14s. 11d. upon a fair balance of all accounts then subsisting between them, except the copartnership account.
The appellant having lost upwards of £15,000 by gaming in Exchange Alley, the respondent became very uneasy, and requested him to execute a mortgage for £2000 or £3000 or any nominal sum, to secure what was owing to him (the respondent at that time, not having balanced the account between them); but Mr. Francis Eyre, the solicitor for the appellant, refused to let the appellant give a mortgage for any, except the real and exact sum which should be found due to the respondent on the balance of all their accounts; whereupon the respondent some time after, having settled such balance, which amounted to £4341 14s. 11d. the appellant, by the approbation of the said Francis Eyre, executed a mortgage for that sum, being the exact balance of all accounts then subsisting between them, to the 31st of December 1762, (except the copartnership account,) which mortgage the appellant himself sent to Antigua, to be registered, and the respondent, on receiving the mortgage, signed a paper, agreeing to rectify any mistake in the settled account, which the appellant should afterwards discover.
Having thus balanced and settled all accounts between the appellant and the respondent William Lom, to the 31st of December 1762, except the account of the copartnership, a second account [5] was opened between thein, commencing from that period, and distinguished by the name of the private account, and the appellant was indebted to the respondent very considerably on this second account.
On the execution of the deed of copartnership, a third account was opened between them, called the copartnership account, which continued till the expiration of the partnership in February 1766, and the appellant was likewise considerably indebted to the respondent on the balance of this third account.
As to the second and third accounts, the respondent was ready to settle them
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