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discovered her rights, and was unable to covery was suffered to the uses so declarproceed at law by reason of the outstand- ed; that Lord Frederick survived Lord ing term of 200 years. The bill then George and Lord John; and that upon his stated, that the defendant pretended that death in 1803, the defendant, under a title some recovery had been suffered by Lord duly derived from him, entered into possesJohn Cavendish, as tenant in tail in re- sion of the premises. mainder, under which, and Lord John's Mr. Sugden and Mr. Pemberton were will, Lord George Henry Cavendish be- in support of the bill. came absolutely entitled to the premises ; Mr. Horne and Mr. Munro were for the and it charged, that no valid recovery was plea. ever suffered of the estates, and if it were, For the plaintiff it was said, that, in a that the estates were so re-settled, that, in future stage of the proceedings, the legal the events which had happened, the plain- validity of the recovery mentioned in the tiff, as the right heir of Sir William Low- plea would be denied ; for it was a remote, ther, was entitled thereto; and that, so it and not an immediate remainder man in would appear, if Lord G. H. Cavendish tail, who had joined with the tenant for would set forth when and in what court life in suffering it; and the case of Smith the recovery was suffered, and who were v. Clifford,* which favours the doctrine, the parties thereto, &c.; and if he would that the ultimate reversions and remainproduce the deeds creating the tenant or ders may be barred by such a recovery, tenants to the precipe, and leading or de- had been regarded with doubt by very claring the uses of the recovery, &c. all great authorities. That question, however, which deeds, if they still existed, were in would be waived for the present; and the the possession of the defendant. The prayer ground on which the plea ought to be diswas, that Lord George Henry Cavendish allowed, was, that it was bad in point of might be decreed to deliver up to the form. The plea relied on the suffering of plaintiff possession of the premises, and the common recovery. Now the bill conof the title deeds relating thereto; that tained an allegation, that the lands were he might account for the rents and profits so settled by the recovery, that, under the received to his use since 1903, and that uses declared upon it, the plaintiff was he and the other defendant (the person in still entitled. There was also an allegation, whom the term of 200 years was vested) that the defendant has documents in his might be restrained from setting up that possession which would show that the title term in bar to the plaintiff's proceedings is not in him, but in the plaintiff. These at law.

allegations ought to have been denied by A plea was put in to the whole of the an answer supporting the plea; and, conbill. The plea stated, that upon the death sequently, the plea, not being so supportof Catherine Lowther, Lord George Ca- ed, must fail. vendish was seised in possession of the Vice Chancellor.—The question here is, premises as tenant for life, and Lord John does this case come within the rule, that was entitled to them for an estate in tail where, though the matter of the plea is male in remainder, expectant upon the de- admitted, there are other allegations in the termination of the prior estates; that in- bill sufficient to avoid the effect of it, those dentures of lease and release, (the purport collateral allegations must be denied, in of which was set forth,) dated in 1766, order to make the plea a full and valid dewere executed by Lord George Cavendish fence? The charge in the bill is, that, if and Lord John Cavendish, creating a te- any recovery were suffered, the uses of it nant to the præcipe for the purpose of suf- were so limited that the plaintiff is entitled fering a common recovery, and also lead- under them. Now the plea is a complete ing the uses of the recovery; according to answer to that allegation ; for it sets forth which, after the estates tail created by Sir the uses of the recovery, and under these William Lowther's will, the ultimate re- uses the plaintiff is altogether without title. mainder was limited to the use of the sur- The matter charged in the bill is not colvivor of Lord George, Lord Frederick, and Lord John in fee ; that accordingly a re

• 1 Term Reports, 748.


lateral to the matter pleaded. The plea is The bill, filed by four seamen on bea direct denial of the averment.

half of themselves and the rest of the Plea allowed. crew, stated, that the defendant, Smith,

being the owner of a ship called the

Granger, engaged the four plaintiffs, and 1824.

divers other persons, to go out as officers Nov. 12. GIBSON V. CHESTON.

and seamen in that vessel, on a whale voy

age to the South Seas ; that articles of The defendant being in default for want

agreement were signed, by which, upon of answer, one of the co-plaintiff's dies;

their return to the port, of London, they before the suit is revived, an attachment

were to receive respectively, in lieu of is issued against the defendant: Held, that the attachment is irregular.

wages, certain specified proportions of the The bill was filed by a number of per

clear produce of the cargo ; that in Octo

ber 1823, they returned with a large cargo sons who had vested interests in certain

of oil, and a considerable quantity of amportions of a pecuniary legacy, against the bergris; that Smith took the cargo into his executor. The defendant did not put in

possession, and sold the oil, but kept the his answer within due time ; one of the

ambergris unsold ; that, being in distress plaintiffs died; and subsequently, an at

for money, they applied to him to make tachment issued against the defendant for

advances to them, whereupon he stated, want of answer.

that, upon the whole clear produce of the The defendant now moved, that the attachment should be discharged as irregue which he himself was willing to give

cargo, including the unsold ambergris, for lar. The alleged ground of irregularity 9001., their respective shares would amount was, that, by the death of the co-plaintiff,

to certain sums which he specified; that who had a vested interest in the subject of

they at first refused to accept the sums ofthe suit, an abatement had taken place, fered, and insisted upon the production of and that till the suit was reviveu, no pro

the accounts, but that the exigencies of cess of contempt could issue.

their situation compelled them finally to Mr. Pemberton, for the motion.

yield; that they then signed or put their Mr. Belt, contrà.

marks to some papers produced by Smith, Vice Chancellor.—The interest of the

which were not read over to them, and deceased plaintiff is not now represented :

which they understood to be receipts for his executor or administrator must be

the sums which he had mentioned ; and, brought before the court. It was clearly finally, that Smith, after obtaining these irregular to issue the process of contempt supposed receipts, did not pay the sums while the suit was thus abated.

which he had mentioned as the respective The attachment was discharged with shares of the plaintiffs, but only a part costs.

thereof, and retained the residue in discharge of monies alleged to be due to

him from the plaintiffs, on account of sup1824. 2 Nov. 3 & 4.)

plies and advances furnished and made to

them during the voyage, though he had A bill praying for an account and charg- never produced any account of those deing fraud, the defendant answers to the inands. whole of it, except certain parts pleaded The bill then charged, that, in ascerto; and then in bar to the relief, and to a taining the clear proceeds of the cargo, few specified questions, he pleads a release Smith had knowingly and fraudulently dewith averments negativing fraud: Held, ducted from the gross produce, on account that the plea was overruled by the answer, of customary and proper charges and albecause the answer extended beyond the al- lowances, divers sums far exceeding the legations of equitable matter, which would ordinary amount of such charges, and much have avoided the plea, though it did not go greater than what he had actually disbursed to any of the questions specified in the in respect thereof; and that the ambergris, plea.

which he had estimated at only 9001., was


worth 30001., anii ought to be taken out of his possession, in order to be sold under the direction of the court.

The prayer was for an account of the gross proceeds of the cargo, of the sums to be deducted therefrom, and of the sums chargeable upon the shares of the plaintiff's for monies advanced, or articles supplied to the plaintiffs during the voyage.

The defence which Smith made to the suit, was by an answer, followed by a plea. The answer purported to be an answer to the bill, except so much of it as was afterwards stated to be pleaded to. It admitted the contract, the performance of the voyage, the possession and sale of the cargo, &c. but negatived the most essential parts of the plaintiffs' case, and concluded with these words : “And this defendant denies that any thing to the contrary of, or at vizriance or inconsistent with, any thing which he hath bereiubefore stated, would appear, if any books or book, or documents or document, or writing or writings whatsoever, which is, are, or ever was or were in his possession or power, were produced." He then went on to say, “And this defendant, by protestation, not confessing or acknowledging any part of the matters alleged by the said bill to be true, to all the relief prayed by the said bill, and to so much of the said bill as seeks a discovery from the defendant, whether this defendant hath not, under the alleged like fraudulent representations, as in the said bill in that behalf mentioned, or some and what representations, paid to others of the officers, seamen, and crew of the said ship, divers or some and what sums less in amount than the monies fairly due to them on such accounts as therein aforesaid; and whether others of such oflicers, seamen and crew, do pot remain wholly unpaid; and whether defendant hath not now or had not lately, and when last, in his possession or power divers or some and what account or accounts, books or book, books of account or book of account, receipts or receipt, vouchers or voucher, estimates or estimate, or valuations or valuation, documents or document, letters or letter, papers or writings, or paper or writing, other than the said articles of agreement and releases relating to the matters

in the said bill mentioned, or some and which of them; and whether defendant doth not refuse to produce the same (other than such articles of agreement and releases); and saith, that defendant may set forth a list or schedule of all and every such accounts, books, books of accounts, receipts, vouchers, estimates, valuations, documents, letters, papers, and writings, relating to the matters aforesaidl, or any of them as are or ever were in his possession or power; and may produce and leave in the hands of his clerk in court for the usual purposes, such of them (other than the said articles of agreement and releases). as still remain in his possession or power; and saith that defendant may, by way of discovery, set forth a full and true account of all and every the sum and sums of money and deductions payable out of or chargeable against the gross produce of the said cargo, on account of costs, brokerage, wharfage, cooperage, lighterage, gauging, pilotage, stamps, duties, commission, discount, and other customary, incidental and proper charges and deductions and allowauces, and which of the same have been paid, and which of them remain unpaid: and also a like account of all and every the slops and articles supplied and sold and advanced (other than advances made by defendant, or on his account) made to plaintiffs, and which of them, during or in respect of the said toyage, and the fuli and true particulars, items, amount and value thereof, doth plead in bar, and for plea saith, that four several deeds poll in writing, bearing date respectively 6th November 182.3, were severally on that day duly signed, sealed and delivered by the said four plaintiffs; such four deeds poll severally and respectively reciting," &c. The purport of the releases was then set forth ; averments were added, that the consideration stated in the respective releases was paid by the defendant, deducting therefrom the sums due for monies previously advanced by him, of which monies a schedule was annexed; and likewise that the defendant had not made or practised any concealment, misrepresentation, fraud or deceit.

Mr. Hart was for the bill.

Mr. Horne and Mr. Knight appeared in support of the plea.


In support of the plea, it was said, that be denied by answer. But if the answer if the bill had merely sought an account, goes beyond the special allegation of equitwithout making an especial case of fraud, able matter, the plea is overruled. Here a release would have been a complete de- the defencant begins his answer with adfence to it; that the allegations of fraud, mitting that he was owner of the ship being denied both by averments in the plea called the Granger; that he was desirous and also by the answer, made no alteration of sending her on a certain voyage ; that in the case ; and that, therefore, the plea he entered into il certain agreement with must prevail.

the plaintiffs and other persons, &c. These, The plaintiff replied, that the plea, if and many other of the matters answered to, good for any thing, would have been a de- are covered by the plea. The plea nust fence against the whole of the bill. But be overruled. as the defendant had given part of the discovery, he was bound to give the However, as nearly the whole of the bill whole.

was answered, the court, at the request of Vice Chancellor.—The form of this plea the defendant, ordered, that the plea should is unusual. The defendant first answers stand for an answer, with liberty to exto the greater part of the bill, and then

cept. pleads in bar to the whole of the relief, and to certain parts of tlie discovery prayed by it. There might be a doubt whether this

1824. mode of meeting a bill is not objectionable

Nov. 3 & 4.

GOSTLING V. SMITH. in point of form. But, without determining that question, it is clear that this plea Articles of agreement are executed be

is overruled by the answer with which it is tween the crew of a vessel, of the one part, joined. The argument for the defendant and the captain, of the other part, con

con tends, that the answer is only to the taining a stipulation, that the seamen are special matter, which, if not negatived, not to have any demand against the owner would have avoided the plea. Now, the of the ship: the owner subsequently acts fact is not so. The answer extends to under the agreement, and, in pursuance of many circumstances, which have no refer- it, makes payments to the seamen out of ence to the special matter which would the proceeds of the cargo: Held, that the avoid the plea.

owner, by such conduct, becomes a party to Mr. Knight submitted to the court, that the agreement, and that a bill for the perthe form of the plea protected it from the formance of the agreement may be mainobjection which had been taken. It was tained against him. enough, if nothing was answered which The case stated by this bill was similar the plea professed to meet ; and it was of

to that in Williams v. Smith. The plainno importance, that the plea might have tiffs were sailors, who had performed a been made to cover more than it had ac- South Sea whaling voyage under articles of tually purported to cover; and that some agreement, which entitled them to certain of the matters, which it might have cover- aliquot parts of the cargo. The defendant ed, but wbich it did not purport to cover, was the owner of the ship: he had taken were answered. Here the plea selected possession of the cargo, disposed of it, certain questions, which it declined to an- made some payments to the plaintiffs, and swer; and nothing was answered, which it professed to render accounts of the transprofessed to cover.

actions. These accounts, however, were, Vice Chancellor.-A defendant, who, it was alleged, altogether fraudulent: the while he puts in a plea, answers what the prayer was, for the taking of the accounts plea might have protected him from an- under the sanction of the court, with the swering, overrules his plea. A plea of a consequential directions. release covers the whole bill, unless there To this bill the defendant pleaded the be special allegations of equitable matter articles of agreement, under which the which would avoid the release ; and then voyage had been made.

These articles the matter of such special allegation must were, not between the sailors and Smith,

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but between the sailors and the captain ; defective for want of parties, the objection
and there was contained in them an ex- of the want of parties cannot be urged on.
press stipulation, that the officers and sea- the argument of the plea.
men were not to have any demand against The question, which was decided in
the owners.

Gostling v. Smith, was again argued in
The captain was not a party to the

this case.

The bill was to the same pursuit.

port as it was in Gostling v. Smith ; and Mr. Hart and Mr. Girdlestone appeared was, in like manner, met by a plea of the in support of the bill:

articles of agreement made between the Mr. Horne and Nir. Knight, for the crew and the captain, to which the defendplea.

ants, the owners, were no party, and which The bill, it was argued for the defend- contained a stipulation, that nothing in ant, seeks to enforce a demand against them was to extend to give the officers or Smith, the owner, upon the footing of cer- seamen any demand against the owners. tain articles of agreement.

The plea

Mr. Phillimore appeared in support of shows that Smith was no party to that the bill ; agreement ; and, therefore, it is not against Mr. Jacob, of the plea. him that performance of it is to be sought; For the defendants it was said, that, in particularly, inasmuch as there is an ex- the first place, the articles themselves gave press stipulation, that the agreement is not no right to sue the owners; the remedy to create any demand against the owner. which they provided was only against the Nor will any accounts gratuitously render- captain, who covenanteil to pay, or cause to ed, or payments voluntarily made' by him, be paid, to the sailors certain shares of the subject hiin to a demand from which he is net proceeds of the cargo. Secondly, The protected by the articles.

subsequent conduct of the owner created Vice Chancellor.—The bill is filed to no liability as between him and the seacarry into effect an agreement, to which men : for he had done nothing, except in the plaintiffs say the defendant was a party. pursuance of the stipulations of that inUpon the plea it turns out, that, in truth, he strument, which excluded them from any was no party to the agreement. But a remedy against him. The articles providperson, who is originally no party to an ed, that the owners should be at liberty to agreement, may, by his subsequent con- sell the cargo; and all that he had doneduct; make himself a party. Now, what the sales which he had caused to take place acts can be stronger for that purpose than -the accounts which he had rendered the conduct of this defendant? He has the payments which he had made, were acted under the articles ; he has availed consequential to, not inconsistent with, the himself of them ; he has paid money un- situation in which the articles placed him. der them. He has, therefore, made him- Thirdly, There was no consideration in the self a party to the agreement.

agreement, moving towards the owner, for The plea was overruled. any liability to be incurred by him.

The cases of Johnson v. Machielsne, *

and of Giener v. Meyer, t were cited upon 1824. 2

this part of the case. COCKELL V. WHITING. Nov. 17. S

It was further argued, that there was a

want of parties. The captain, who was If a person, not originally a party to an not only a party, but the sole party (exagreement, acts under it, and professes lo clusive of the plaintiffs and the rest of the render accounts, and make payments ac- crew) to the articles, was a necessary party cording to its provisions, a bill for the per- to a suit seeking to enforce the performance formance of it may be maintained against of them. This defect did not appear on the him, even though the original agreement bill, which concealed it by misrepresenting stipulated that it was not to extend to create the particulars of the agreement. But it any demand against him. If a plea in bar is bad, although it appears

3 Campbell, 44. on the matter contained in it, that the suit is

+ 2 H. Blackstone, 603,

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