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![handle is hein.slavery/ssactsengr0648 and id is 1 raw text is: GOULD V. TANCRED
be intitled to a moiety : for there are many cases where one party sets up a title in.-
consistent with the title set upby another party, and though he fails in his own claim.
yet hemay appear to have a right to something under the other's claim; and this
court cannot consistently with justice deprive him of it.
1 will not absolutely determine this point now, but will suspend that part of the
decree which directs Mr. Francis Lee to join in the conveyance of the Kentish estate
until this question is settled, and dismiss Mr. Francis Lee's petition as to every thing
clse.(2)
(1) The plaintiff Sir John Napier, an infant, exhibited his petition to Lord Chan-
cellor Parker, for leave to bring a new bill, shewing that his cause had been mismanaged
by his former solicitor, and making out the same by affidavits; the court gave him
leave to bring a new bill,
The defendant Lady Effingham appealing from the order to the House of Loris,
she was let into the possession of the premisses, which she claimed under a conveyance
from Sir Theophilus Napier, her first husband and uncle of Sir John, who brought a
bill to be relieved against this conveyance as unduly obtained ; but they gave leave
to the plaintiff to shew cause within six months after he came of age. Sir John Napier
v. Lady Effingham, 2 P. Wins. 401.
(2) His Lordship doth order, upon the petition of Richard Lee the infant, that
he be at liberty to amend his answer to the original bill, or to put in a new answer
thereto : and his Lordship doth order, upon the petition of Francis Lee, that the
performance of that part of the decree, whereby the said Francis Lee is decreed to
join in a conveyance of the Kentish estate, &c., be suspended as to the said Francis
Lee, until the cause shall come again to be heard on the new defence to be made by
the said Richard Lee the infant. Reg. Lib. A. 1742, fol. 278.
Case 317.-GouLD versus TANCRED, March 23, 1742.
It being referred to a Master to take the account between a mortgagor and mort-
gagee under a bill of foreclosure, his report was confirmed in the year 1736. Lord
Hardwicke dismissed the defendant's petition for a bill of review, as it appeared the
defendant's agent, attorney and solicitor attended the settling the account on his
behalf before the Master, which bound the party.
The plaintiff being a mortgagee in possession of Mr. Tancred's estate, brought a bill
against him to redeem, or that he might be foreclosed ; and it being referred to a
Master to take the account, he made his report, which was confirmed as long ago as the
year 1736. The defendant petitions now for a bill of review, upon three suggestions :
First, That the Master in taking the account has not made any rests, or sunk the
principal of the mortgage. Secondly, That there are three years omission in the
account; and Thirdly, That there is matter come to his knowledge, subsequent to the
Master's making his report, though it existed at the time.
Lord Chancellor. This is a very unfavourable application when the Master's report
has been confirmed so long, and where the defendant might properly have excepted
to the report, upon every one of the suggestions which he now makes for the bill of
review.
It has been said by his counsel to strengthen the application, that the defendant,
being an unfortunate man, has lain in prison some part of the time, and forced to leave
the kingdom for the rest.
This is thrown in to move compassion, for all persons in the defendant's case, who
are incumbered, are liable to such acei-[534]-dents, and if I was to give any weight
to it, a creditor would lie under very great hardships, and the saying inverted, for
a lender then would become a slave to the borrower.
Here the defendant's agents, attorney, clerk in court, &c., attended the settling
the account before the Master, which must bind the party, or there would be no end of
controversies: and yet the whole tendency of this application is, that all may be set
loose again : this makes me say it is a most unfavourable application; but however,
if justice is with the defendant, it ought to prevail.
The petition is upon three grounds :
First, that the Master has not made any rests, or sunk the principal.
2 ATK. 534.](ViewImageLocal?handle=hein.slavery/ssactsengr0648&div=1&collection=&method=preview&ext=.png&size=3)