by the Plaintiff to the Defendants are to stand as securities for what is really due from the Plaintiff on a balance of all accounts; that an account may be taken of all monies advanced by the Defendants Da Costa, Bernal, and May, respectively to the Plaintiff or on his account; an account of all monies received by Defendants respectively from or on account of the Plaintiff'; and that the balance may be ascertained, which the Plaintiff offers to pay: and an injunction to restrain the Defendants from proceeding at law, and from assigning the securities.

The bill was twice amended, and a supplemental bill filed; and each of the Defendants put in six answers. The consideration for the twelve bonds obtained by May for the sum of 24,1401. according to the representation in May's first

The schedule to May's answers set forth an account current between him and the Plaintiff, commencing in July, 1793; in which among various payments by May on account of the Plaintiff were some in July and August 1793 to Bernal and Da Costa.

The sum of 19,212. 12s. 10d. consisted of the following securities of the Plaintiff's and interest due upon them:

A bond for

Interest

A bond for

Interest

A bond for

Interest A bond for Interest A note for Interest A note for Interest

£6740 0 0

359 3 1

1700 0 0

90 11 9

3243 0 0

159 14 9

1200 0 0

16 9 6

2630 0 0

147 2 9

2900 0 0

26 11 0

£19,212 12 10

1799.

WHARTON

v.

MAY.

[ 29 ]

1799.

WHARTON

V.

MAY.

The sum of 67401. was the balance due on a bond of the Plaintiff's for 97407. dated the 7th of June, 1792, after deducting 30007., which according to Bernal's latter answers formed the consideration of the post obit bond after mentioned on the life of Mrs. Farquharson for 60007.

The sum of 97401. accrued due to Bernal as follows:

By agreement in October, 1789, for a post obit bond for 20007, in consideration of 1000l. if the Plaintiff should survive Mrs. Wharton.

By agreement 22d of October, 1789, upon the same terms. 1789. Nov. 9th. Post obit bond by Plaintiff un

der the above agreements £4000 0 0 1790. Feb. 20th. A similar bond in consideration

[ 30 ]

£9740 0 0

Mrs. Wharton died on the 8th of September, 1791, in the ninety-fifth year of her age. She was born on the 24th of April, 1697. On the 7th of June, 1792, the Plaintiff paid to Bernal all interest from Mrs. Wharton's death to that day; and executed the bond for 97401. payable in twelve months.

As to the bond for 17007. dated the 7th of June, 1792, the statement by the answers of Bernal and Da Costa was, that it was taken by Da Costa in Bernal's name for a debt, which, Da Costa told Bernal, the Plaintiff owed him, but he thought it best to take it in Bernal's name: and Da Costa informed Bernal, that he had delivered up four of Plaintiff's promisory notes to him as the consideration for it.

The bond for 32437. dated the 6th of July, 1793, was a post obit bond for payment of 6486 on the death of General Lambton, in case he should live beyond the 25th of March, 1794, and the Plaintiff should survive him: but in case of his

death

death before that day the money advanced only was to be returned with interest. General Lambton, who was of a very advanced age, died upon the 22d of March, 1794; consequently only the single sum became due. The consideration for this bond was stated to be a note of the Plaintiff's for 32431. payable to Da Costa or order, and for which Bernal swears he paid Da Costa the full amount in cash, notes, or drafts on a banker. Da Costa was partner with Bernal for 500%, part of this bond.

The bond for 12007. dated the 1st of April, 1791, was also a post obit bond on the life of General Lambton, in consideration of 6007. of which 400l. was Bernal's and 2007. Da Costa's.

The note for 26301. was a promisory note by the Plaintiff, dated the 18th May, 1793, remitted by the Plaintiff to Da Costa, in exchange for a note to the same amount, as stated by Da Costa in his letters, but which, as the Plaintiff contends, was altered by Da Costa from 16307. to 26301.

The note of the Plaintiff's for 29007. bore date the 25th of April, 1794. Bernal by his answer stated, as the consideration, that he allowed the full amount as cash in account with May, as per schedule.

The two bonds for 6000l. each, dated the 3d of November, 1794, were given in consideration of two other bonds of the Plaintiff, which May assured the Plaintiff he had discharged or taken up from Bernal; one dated the 30th of May, 1793, for 6000l. payable at the death of Mrs. Hall Stevenson, in case the Plaintiff should survive her; and the other, dated the 6th of July, 1793, for 60007. payable at the death of Mrs. Farquharson, in case the Plaintiff should survive her. The consideration paid by May to Bernal for these two bonds was stated by May to have been his own note for 7500l. with an obligation to secure the same farther by his bond and warrant of attorney; which he afterwards executed.

The consideration received by the Plaintiff for those bonds, according to Bernal's answer, was, as to the bond depending on the life of Mrs. Stevenson, 3000l., stated to have been paid by Da Costa to the Plaintiff; and, as to the bond depending on the life of Mrs. Farquharson, 3000l., written off by Bernal on the 7th of June, 1793, from the bond for 97401. dated the VOL. V. C 7th

1799.

WHARTON

บ.

MAY.

[ 31 ]

1799.

WHARTON

v.

MAY.

[ * 32 ]

7th of June, 1792, which became payable on the 7th of June, 1793. Da Costa was partner with Bernal for 500l. of the consideration for the last-mentioned post obit bond. Mrs. Farquharson died in February, 1797.

The debt claimed from the Plaintiff by Da Costa amounted to 79007. and interest from the 10th of July, 1794; for which sum the Plaintiff had given his bond of that date to Da Costa; payable by instalments, and May gave his bond and warrant of attorney as a collateral security. Da Costa stated, that all accounts between him and the Plaintiff were finally settled upon the 29th of April, 1794; and the balance of that account due to Da Costa, viz. 72271. was the consideration of a bond for 6000l. and a note for 12281., taken by Da Costa from the Plaintiff on the 1st of May following; and that bond and note being delivered up by Da Costa, together with a note of the Plaintiff's for 600l. in the hands of one Parker, which Da Costa undertook to pay, formed the consideration for that bond of 79007.

Bernal by his answers stated, that on the 1st of July, 1794, the Plaintiff was indebted to him on bonds and other securities 19,2127. He admits, he never paid the Plaintiff personally any sum of money * whatsoever, but always through the medium of Da Costa; and swears all the above transactions passed between him and Da Costa, who acted as agent of the Plaintiff but not of him (Bernal); that he settled and paid all the money to Da Costa as the Plaintiff's agent; that all the bonds and securities were prepared by Da Costa, and he was a subscribing witness to them all. Bernal stated, that he became acquainted with May in January or February, 1791; and had afterwards very considerable money transactions with him; and there was generally a very considerable balance due from May to him; that in the account between him and May were several promisory notes of the Plaintiff's; that he (Bernal) kept a regular entry of his accounts with May; that he kept no account of the notes of the Plaintiff's, which he discounted for Da Costa; that on the 1st of July, 1794, May owed him (Bernal) 10,4007. on his own private account.

Da Costa by his answers stated, that he first became acquainted with the Plaintiff at May's house in 1788 or 1789; that the Plaintiff wanting money, and May representing to him

(Da

(Da Costa) the Plaintiff's large expectations, he at the instance
of the Plaintiff and May at that time and various times after-
wards had very considerable money negociations with the
Plaintiff; but can give no account of the particulars: but the
same were finally settled on the 29th of April, 1794, at 72277. ;
and the Plaintiff then either took away or destroyed all the
vouchers; that such accounts and vouchers having been deli-
vered up to the Plaintiff or destroyed by him or at his request,
he (Da Costa) cannot set forth the several sums of money or
the amount thereof received by him from or on account of the
Plaintiff; that such balance of 72271., together with the
Plaintiff's note in the hands of Parker formed the whole con-
sideration for his bond for 79007.; that he cannot set forth any
particulars, either as to the persons, to whom, or the times
and places, when or where, and the persons, in whose pre-
sence, the several consideration monies for his securities were
paid; that in the course of such money negociations with the
Plaintiff he (Da Costa) occasionally, and when he had not
money of his own for the purpose, got the Plaintiff's bills dis-
counted by Bernal; and that in all such cases he always gave
or remitted to the Plaintiff all the money he so received from
Bernal; which were the full value for the same, but he cannot
set forth any particulars, all the vouchers having been de-
stroyed or delivered up to the Plaintiff; that he hath not, nor
ever had any book or books, wherein any accounts or entries
relating to any transactions or dealings with the Plaintiff are
entered; that he cannot set forth any account of the monies
paid by him and Bernal to the Plaintiff, or the times when,
or purposes, for which, or occasions, on which, the same were
advanced, or of the monies received by him and Bernal of
Plaintiff or on his account, except as before stated. He
admits, he received several sums of money from or on account
of the Plaintiff or for his use, and for insuring his life, but
cannot set forth the particulars or amount, except as before
stated;
but such insurance was upon the life of the Plaintiff
singly, not against that of Mrs. Wharton. He admits, he did
not pay any money for such insurance; but at the Plaintiff's
request, lest it should make his affairs too much known, he took
the risk upon himself. He admits, he purchased about 50007.
India stock for Plaintiff to enable him to vote at the India
house:

C 2

1799:

WHARTON

v.

MAY.

[ * 33 ]