1799,

WHARTON

V.

MAY.

tainty give an advantage to money-brokers in dealing withi persons in such a situation.

This case contains all the different heads of fraud, upon which in each of the cases of this kind the Court has thought fit to interpose. Whether the manner of dealing, or the situation of the Plaintiff, or the subject-matter of the contract, or the relation between the parties, be considered, in all these different views this case will be found to be composed of all of these ingredients, each of which separately the Court has always considered a sufficient ground for interposing. The three Defendants May, Bernal, and Da Costa, endeavour to distinguish themselves from each other. That is impossible upon the whole case; and they must now be taken, when all the circumstances are considered, as one. Bernal states himself to be a merchant; that he has carried on business in that character in London many years, and in that character has been concerned in money transactions. Though he is a merchant, he states, that of these transactions, of which the bill seeks an account, though he entered into them in the character of a merchant, he has no books of any description, in which there is or can be traced any entry of any one transaction between him and the Plaintiff. When those transactions are considered, that there must have been entries in Bernal's books must be evident. They are bill transactions. Bills were lodged with him by the agent of the Plaintiff, his name upon them; all payable at future times. There must have been bill books, bankers' book, entries of drafts, calculations of interest, in all the ways, in which such transactions are entered in the books of Mr. Bernal, a merchant. But however incredible and improbable it is, if, because he says, he never made any entry of any of these transactions, that must be believed, the whole consequence is, that if he was the most upright merchant in London, it must be his misfortune, that he is in that situation; for this and every Court of Justice has a right to expect, that a person describing himself to be in that situation shall have entries of such transactions. It is incident to his situation. It is part of his obligation as a merchants and the Court can have no faith in his transactions upon such a statement, that, though he is a merchant, and keeps books with other people, he has no entry of these transactions.

I desire

I desire no better evidence of fraud. If the cause stood alone upon that admission, it is quite impossible he could ⚫ sustain those pretended accounts. It is not sufficient to state, that he had settled accounts, and delivered up vouchers. Vouchers perform the office of verifying accounts and entries in mechanics books: but they are not accounts or entries: and though it is perfectly true, that a merchant may have delivered up vouchers, that is no excuse for not having at any time made any entry of these enormous money transactions. If he had delivered up vouchers, it does not follow, that he was not obliged to produce the books. Can better evidence of fraud be offered? If he did enter these transactions, he knows, the production of the books would specifically fix the fraud upon him and if he did not, there can be but one reason; that he was practising the fraud with which he is charged. If any case could exist of omitting entries, least of all ought he to have done so in this case; for he was not dealing with a merchant, who might have books to supply the want of entries in his books or to check them: but he was dealing with a person, from whom the Court would not expect books, with a person, who, he knew, could have no check. He says he never in these six years saw the Plaintiff but once at a coffee-house: the whole of his transactions with the Plaintiff were carried on through Da Costa. Was it fit, that Bernal, knowing, he was transacting with an agent of the Plaintiff, not personally with him, was to furnish him with no means of checking his agent? Was he to permit Da Costa to become the sharer and partner, as he was in many instances, with him, and to make no entry? Was he to become a trustee for Da Costa, Wharton's agent, and to be able to give no account, but generally to state, that whenever he had paper from Wharton, he gave value to Da Costa his agent? Da Costa states himself to be a very old money broker in London, and to have been employed in this way. He also has no books. He could hardly be ignorant, that Bernal kept no books: then it was the more incumbent on him. Therefore the Plaintiff can get no account either from his own agent, to whom he paid a commission, or from the person, with whom that agent dealt. The first transaction between the Plaintiff and Bernal was in 1789. Mrs. Wharton then was above ninety-two: the Plaintiff twenty-two at most.

There

1799.

WHARTON

v.

MAY. [ *44 ]

1799.

WHARTON

V.

MAY.

[ 45 ]

There was no other contingency, upon which that obligation could fail but the Plaintiff's not surviving Mrs. Wharton. Consider the nature of that contingency. It was an event, against which an insurance could have been effected for the smallest sum. In Lord Chesterfield v. Janssen (20) Lord Hardwicke observed, that whether the contingency is inserted, or not, it is the same thing. It is the risk the creditor always necessarily runs: the fund for payment depending upon the debtor's surviving. If that was a reasonable bargain in 1789, what was it in 1791? She died in September 1791. The last bond was given only five months before her death; and all these bonds were upon the same terms, for double the sum received. Upon the same ground it might be contended to be reasonable, if she had been in extremis.

The bonds were due six months after Mrs. Wharton's death. Bernal then calls upon the Plaintiff: but so far from expecting to be paid he advances other money, and takes other securities. All, that can be alleged for him, is, that after her death the Plaintiff took up those post obits, and in July 1792 gave an absolute bond for 97401. payable at the end of one year from that time. Before that new bond became due, Bernal states, that he had supplied the Plaintiff with 30007. more, for which he takes a post obit upon the death of Mrs. Stevenson. These two dates, viz. the transaction of that post obit, and the date of that bond substituted for the former post obits, are material to shew the Plaintiff's situation, and the impossibility, that Bernal could expect payment; for only seven days before the bond for 97401. was due he had furnished the Plaintiff with 3000l. and taken a post obit. Can he then state himself to know, the Plaintiff was in a situation to pay that bond of 97007.; that he was a free agent; that that bond did not become due for a year, and he was at liberty to pay or contest it, as he thought proper? It did not rest there. Plaintiff was not in a condition to pay the bond for 97001.

(20) 2 Ves. 125. 1 Atk. 301. In addition to the authorities referred to in that case and upon this argument see 1 Ch. Ca, 276, Hill v. Caillovel, 1 Ves, 122, Nicols v. Gould, Hylton v.

the

Hylton, 2 Ves. 422. 549. Gwynne v. Heaton, 1Bro. C. C. 1. Heathcote v. Paignon, and Fox v.Mackreth, 2 Bro, C. C, 167, 400, 1 Fonb. Tr. Eq. 134, 135, 141,

the week after; and when that bond became due Bernal makes a new contract, and writes off 3000l. from the bond of 97007., and takes another post obit bond for 6000l. more upon the death of Mrs. Farquharson; which is the subsequent transaction, upon which May dealt with Bernal. These transacactions shew the same state of distress, that gave rise to these unfortunate means of raising money, and made the Plaintiff the prey of rapacity such as the Court sees in this

cause.

This debt being accumulated, these parties have recourse to a stratagem, upon which, if one could forget the indignation such a scene excites, one should pity the folly and weakness of supposing, that such a contemptible artifice could shut out an inquiry. Bernal's securities might be questioned; and so might Da Costa's. It was difficult to screen them: but if they could hand over their securities to another person, and could produce a written authority from the Plaintiff, desiring that third person to interfere, it was intended, that person should stand in this Court as a purchaser, and there should be a universal destruction of all vouchers, and Bernal then should tell the Court he has no demand. May states, that he interposed not only in his professional character, but he adds the stimulus of private friendship, to Bernal, according to his statement upon honour in his letter, to the Plaintiff, according to his statement upon oath. What is the effect of this as to the Plaintiff? He is in just the same situation. The effect is only, that Bernal and Da Costa pay 40007, each to Williams, May must have been a very monied man, if this was so; if he could pay at that time 8000l. to Williams, of whom he gives no account; and he had so much money, and so many bank notes, that he can give no account, how he paid that sum, though so recently afterwards called upon to state, how he paid that sum of 8000l. to a person, of whom he knows nothing, who stumbled upon him by accident among the many practising barristers in this town. He denies, that he had any thing to do with the actions, that he knew the attorney employed, in his first answers. At length he admits, Edwards was the attorney; which enabled the Plaintiff to have recourse to him, and to develope this extraordinary proceeding, and completely disprove the answers.

1799.

WHARTON

v.

MAY.

[ 46 ]

1799. WHARTON

v.

MAY.

[ 47 ]

In these transactions, May in his answer says, he intended benefit to the Plaintiff. There is as little benefit to him as in the other transactions, where May purchased the post obits, in which he increases the debt above 40007. more than he had contracted to pay. If he had acted in the character of a fair and honest adviser, he would not have suffered the Plaintiff to pay a farthing of those demands without investigation. If the reduction of the 80007. upon the settlement with Bernal had been obtained for Plaintiff's benefit, May would have had something to have stated. But it is impossible for him to state any thing but that he placed Plaintiff * in precisely the same situation; only putting a cover over these transactions. Your Lordship has the best evidence of the nature of their transactions. May then was advising his friend Mr. Wharton to come to this settlement, where he had such complete evidence of the imposition practised upon him. The Plaintiff had not to bring actions for usury. The advice ought to have been "file a bill; and have an account taken." But May states, that he gave this advice; the consequence of which is making Plaintiff debtor to him in the same sum, from the impression, that he could not get out of it.

In the transaction of the two post obit bonds purchased for 7500%. the benefit, which May professes to give Plaintiff, is shewn by his taking a bond for 6000l. payable by instalments, and another bond for 60007. payable upon the death of Mrs. H. Stevenson, with interest at 3 per cent. in the mean time. He makes the debt absolute instead of contingent. The gain upon that transaction is 45007. He says, he had those bonds valued. Suppose, that was so, then he makes a profit of nearly 30007. upon it: which however is not the true estimation.

As to Da Costa, he stands upon the settlement of accounts with the Plaintiff upon the 29th April, 1794: Wharton alone settling the account with Da Costa, unattended, unassisted by any person, by any man of business; and Da Costa èlaims the benefit of that settlement, as if he had pleaded it! The settled account remains. If it was properly settled, there would be two parts. The vouchers, which verify it, may be delivered up: but where is this account; and where are Da Costa's books, containing the entries; from which it was made out?

Can