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was apparent upon the bill and the plea the record is a plea concluding in bnr, and taken together; and a defendant, who not for wint of parties. To raise the ob pleaded, was entitled to avail himself of jection in this stage of the suit, it must be every objection which could be drawn from
pleaded : not having been pleaded, it canthe matter so stated in the plea. There- not avail the defendant. fore, the plea ought to be allowed, as
The plea was overruled. showing that the necessary parties were not brought before the court. Vice Chancellor.—This plea is as defi
1824. cient in substance as the case made by it Nov. 5 & is in moral justice.
Dec. 23, The plaintiffs are officers and seamen of a ship, who were to be paid for their ser
The Master having reported the answer vices on a whale fishing voyage, by certain
of a defendant insufficient, the plaintiff proportional parts of the cargo produced served a subpæna, to put in a better anby it. They state, that on the return of swer : exceptions to the report were taken, the ship, the produce was given over to the and the order for setting them down to be owners; that the owners sold it ; that they argued, was served before the defendant professed to render an account of the pro- was brought into contempt, but not till ceeds, and to pay the crew the shares to eight days from the service of the subpana which they were respectively entiiled; but had elapsed: Held, that an uttachment subthat the accounts rendered were fraudu- sequently issued, for wunt of a better anlent, and the sums paid to the seamen far swer, was irregular. short of what they ought to have received. After exceptions are filed, and the order The object of the bill is to correct the setting them down is served, all further fraud, by compelling a just account to Le process for a better answer is stayed ipso rendered.
facto ; nor is it necessary to come to the To this bill the owner pleads the articles court for an order to stay proceedings. of agreement, to which, he says, he was In this case the Master having reported not a party; which were maile by the cap- the answer of the defendant insufficient, tain ; and which provided that he was not the plaintiff issued a subpæna against her to to be liable to any demands.
put in a better answer. The subpæna was Now, I doubt, in the first place, whether alleged to have been served on the 9th of any such stipulation would bind this court, August: or would have any operation to prevent the On the 16th of August, the defendant seamen from enforcing their demands against filed exceptions to the Master's report. On theowner, whose agentthe captain was. But the 17th, the order for setting them down that question does not arise here. For the . to be argued was obtained. On the 18th, owners took this property into their posses- the exceptions were set down, and the orsion, acted upon the articles, and professed der served upon the plaintiff's clerk in to render accounts, and to make part pay- court. Several days afterwards an attach. nents according to the articles. After ment was issued, to which the defendant that, must not this court relieve against å gave
bail. fraud upon those articles! Must it not in- The defendant now moved, that the atquire, whether the owner has fairly fulfill- tachment should be discharged as irregued that agreement under which he , pro
lar. fesses to have acted ?
Mr. Russell, for the motion. As to the objection of want of parties, in Mr. Roupell, contrà. what shape is it urged by the defendants ? In support of the motion, it was argued, The question is not, whether it appears that the exceptions having been regularly upon the bill and plea, taken together, that filed, the service of the order for setting the captain ought to have been brought them down to be argued, stayed all probefore the court-but, whether has this ob- ceedings, till the judgment of the court was jection been taken in the way prescribed obtained. That more than eight days from by the rules of the court? The plea upon the service of the subpoena had elapsed be
fore the order was served, was a circum
did not include the stock specifically approstance of no importance. The plaintiff, priated to meet his demand; and that it is indeed, might have availed herself of that no objection to the plea, that, after the spedelay to have brought the defendant into cial purposes are answered, there may be contempt, who then would have had no in the hands of the agents a surplus in means of avoiding the putting in immedi- which the plaintiff may have an interest. ately of a further answer, unless the court A creditor cannot file a bill for an achad interposed specially in her behalf. But count against the agent of the principal so long as she was not actually in con- against whom his claim is, unless he makes tempt, she was at liberty to file her excep- out a case of collision between the principal tions; and if the order for setting down and the agent. the exceptions was served before an at- The plaintiff, Admiral Jabat, was the tachment was sealed, no process of con- envoy from the Spanish Government to tempt could issue afterwards. There was this country in the year 1822. At the close not a shadow of authority for the notion, of that year the Cortes of Spain entered that the defendant ought to have come to into arrangements for raising a large sum the court for an order to stay proceedings; of money, by way of loan, for the exithe established practice was quite the other gencies of the state.
For this purpose,
40,000,000 of reals vellon of rentes or anAgainst the motion it was stated, that nuities, at the rate of 5 per cent. on the the clerks in court conceived the attack- nominal capital represented by them, were ment to be regular, and that proceedings created : and on the 14th of January 1823, to enforce a further answer were not stay- Egea, who was the secretary of state and ed, unless an order to stay them was ob- of the treasury, concluded a contract with tained.
a person duly authorized as the agent of The Vice Chancellor ordered the mo- Bernales, by which the house of Bernales tion to stand over, in order that he might and Co. was appointed to conduct in Loninquire into the practice.
don the arrangements necessary for giving Finally, His Honour ordered the attach- effect to the original intention of the parment to be discharged with costs. A course ties, and for disposing of the certificates of of procedure, observed his Honour, such the different portions of the loan. In antias the plaintiff contended to be necessary, cipation of the produce of the loan, Berwould be most cumbrous and expensive. nales and Co. were to accept and pay to
the order of the Spanish Government bills to the amount of 800,000l.; and, accord
ingly, that house accepted bills drawn by 1824.
the Spanish Government to the amount of
73,000l., but dishonoured others which Plea--Creditor - Agent.
were subsequently drawn from Spain for Upon allegations, that, under the decrecs the residue of the 800,0001. In conseof the Cortes and orders of the Spanish quence of their so refusing to accept the Government, the plaintiff had a lien for Spanish bills, the Cortes, in March 1823, the payment of a debt due to him on a cer- annulled the contract with Bernales and Co.; tain portion of stock, which, along with and, at the same time, the government other stock had been, by the commissioners sent orders to their commissioners liere to of the Spanish Government, placed at the complete the loan on the most advantagedisposal of, and sold by, certain agents here, ous terms they could, by the sale of the a bill is filed praying an account (amongst certificates. others) against the agents: Held, that a The failure of Bernales to fulfil his engood and complete defence may be made to gagements, had occasioned great pecunisuch a bill by a plea, stating matter from ary embarrassment to Spain: and the gowhich it appears, that the stock placed at vernment not being able to supply the the disposal of these agents was intended plaintiff with money, either for the payfor special purposes, unconnected with the ment of the salary and expenses of his ofsatisfaction of the plaintiff's demand, and fice, or for the purchase of the stores and
-JABAT V. CAMPBELL.
commodities of which they were in want, received for them large sums of money, sent him orders, bearing date on the 25th out of which they ought to have paid the of March, by which they directed him to sums due to the plaintiff; and that they enter into contracts with British merchants still held in their hands others of the cerand manufacturers, and to take all means tificates, which ought to be sold in order to necessary for supplying the government discharge the defendant's claim. It further with various articles not exceeding in the set forth, that Campbell, and Lubbock and whole the produce of 50,000 hard dollars of Co. pretended, that the sale of certificates rentes, part of the 40,000,000 of reals vellon. by them was intended only for special purThese orders were repeated subsequently ; poses, and particularly to pay various bills and instructions were transmitted to three of exchange drawn upon Bernales, and necommissioners of finance, who had been gotiated by the Spanish Government, which sent to London for the negotiation of the Bernales had refused to accept : and it loan, that they should pay to him the mo- charged, that, if the funds raised by the sale nies wanted for purchases, and also the of the certificates had been applied in amount of what was due to him for salary, preference to the payment of any such out of the produce of the sale of the certi- bills, such application of the money was ficates, as soon as a sufficient sum of money fraudulent ; both because the holders of was realized by such sale.
the bills had not given full consideration In pursuance of the orders given him, for them, and also, because, being indebted Admiral Jabat made purchases, for some to Campbell, and Lubbock and Co., they of which he had actually paid, while for had, in discharge of their debts, indorsed others he had become personally liable. them over to these gentlemen, who had For the sums so disbursed by him, or due the means of giving themselves an undue to him for salary, the bill insisted that he preference. bad a lien on the 40,000,000 of reals vel- The prayer was, that an account might be lon of rentes, and on the monies raised by taken of the monies received by Campbell, the sale of every and any part of them. and Lubbock and Co. in respect of the sale
The commissioners of finance not having of certificates, and also an account of the entered into any final contract for the rate certificates remaining unsold ; and that the of the certificates, the Spanish Government, plaintiff might be declared to have a claim in June 1823, caused an inscription to be upon the monies in their hands, and upon made in the great book of the public debt the unsold certificates, to the amount of of Spain, for the sum of 50,000 hard dol- the pecuniary claim, which he had stated lars of rentes, and directed Martinez, who in the bill. was joined with the commissioners, to sell To the case thus made, the defendants certificates to that amount, and pay the put in a plea. That plea began with setting produce to Jabat, for the above-mentioned forth a decree of the Cortes, of the 16th purposes.
of May 1823, which authorized the GoThe bill, after setting forth these mat- vernment to annul the inscription made in ters, went on to state, that, before any favour of Bernales and Co., and to negotitreaty was concluded for the sale of the ate and issue such part of the 40,000,000 certificates of the inscription of 50,000 of 'reals vellon of rentes, as might be nehard dollars of rentes, the commissioners, cessary to cover the bills which Bernales in July 1823, concluded an agreement with had refused to pay. One provision of Campbell, and Lubbock and Co. for the it was, that the certificates of rentes sale of the certificates of the rentes; that, should be delivered at a stipulated price, to in pursuance of that agreement, certifi- the holders of the dishonoured bills. The cates to a great amount, being part of plea next stated, that, in pursuance of that the 40,000,000 of reals vellon, and 'in- decree, Campbell, and Lubbock and Co. cluding the 50,000 hard dollars of rentes, concluded with the Spanish commissioners were signed by the commissioners, and a written agreement, the whole of which delivered to Campbell, and Lubbock and was set forth. The agreement stated, that Co. ; that Campbell, and Lubbock and in order to provide for the bills dishonoured Co. sold many of these certificates, and by Bernales, and for the payment of British
claims amounting to 38,2231, 12s. 9d., the said certificates to the holders of the said Cortes of Spain had directed new inscrip- bills of exchange and British claims, actions to be issued by the minister of finance cording to the respective amounts thereof, for two sums therein mentioned ; and that as agreed on and adjusted by the officers the commissioners were authorized to grant of the Spanish Government in Spain, with certificates of these inscriptions, and had the holders of the said bills, and the said requested the assistance of Campbell, and British claimants; and the saiu Don Antonio Lubbock and Co. in the negotiation thereof, Martinez is to sign his approbation of the and in appropriating the proper amounts sums to be paid to each holder of the said in certificates in satisfaction of the British bills, and of the orders of the Spanish elaimants, and of the holders of the bills. Government in favour of British creditors; It then specified the conditions of the con- and if, upon a full and correct statement of tract between the commissioners of the one the payments to be made in certificates as part, and Campbell, and Lubbock and Co. aforesaid, it shall appear that the said two, of the other. The first two articles of it inscriptions are inadequate to the discharge were in the following words :
of the whole sum, to be paid at the rate sti“ Article 1st. That the commissioners pulated in the instructions under which the shall, upon the credit and authority of the said Don Antonio Martinez is acting, then he said inscriptions, issue and sign certificates does hereby engage and agree to apply to of different amounts, from 25 dollars to the Spanish minister of finance for a fur400 dollars rentes, bearing interest at 5 per ther sum of inscriptions, conformable to cent. per annum, payable to the bearer the instructions in that respect which he thereof, and which certificates shall be has received from the Spanish Government, signed by the said commissioners, and the to enable the said commissioners to issue said James Campbell and Co. shall certify certificates thereon for the deficiency, with and attest the signatures of the said com- the first year's interest or dividends missioners thereto; and the interest or divi- thereon, and the expenses attending the dends thereon, shall be made payable at the execution of the decree of the Cortes, of counting-house of the same James Camp- the 16th May last, and the royal orders bell and Co., London ; but the said James confirming the same.'' Campbell and Co. are not in any man- The seventh article declared, that Campner to guarantee or become responsible for bell and Co. and Lubbock and Co. should payment thereof, further than the sums be at liberty to act as the agents of any which may be placed in their hands for that of the holders of bills, or British claims, purpose, as hereafter stipulated and provi- and in that character to receive the certided; and the same James Campbell and cates to which such bill-holders or creditors Co, shall be paid the same commissions should be entitled. The ninth provided, for making such payments as were paid that, out of the monies received by Campto Messrs. Ardouin, Hubbard and Co. of bell and Co. and Lubbock and Co., certain Paris, for making similar payments for sums should be paid to the commissioners the Spanish Governmeät, upon antecedent for their personal expenses, &c. loans,
The plea went on to state what had been “Article 2d. The said Don Antonio Marti; done under these arcicles of agreement ; nez being authorized by the said Spanish and it averred, that the certificates deliverminister of finance, to superintend the li- ed to Campbell and Co. and Lubbock and quidation and payment of the said bills Co. did not form any part of the inscription of exchange and British claims, and being of 50,000 hard dollars of rentes, mentioned for that purpose intrusted with two inscrip- in the bill ; that no part of the produce tions for 580,000 and 24,000 rentes; doth of the certificates, which had been deliverhereby authorize the said commissioners to ed to them, were ever, to the best of the sign and deliver the said certificates upon knowledge, information, or belief of the the credit and authority of the said inscrip: defendants, ordered by the Spanish Gotions, to the said Sir John Lubbock and Co. and James Campbell and Co., who do A Commission had been established for the herebyl bind themselves to deliver the liquidation of British claims.
vernment to be paid to the plaintiff, or due of the rentes. Fourthly, the plea did applied to the purposes alleged in the bill; not meet that part of the bill which and that the certificates delivered to theni charged, that the Spanish Government gave were neither part of, nor issued upon the directions to the commissioners who concredit of, the 40,000,000 of reals vellon cluded the agreement with Campbell and mentioned in the bill.
Co. and Lubbock and Co. to sell a sufficient Mr. Hart and Mr. Pemberton appeared number of the certificates in order to pay in support of the plea:
the plaintiff's demand. The Solicitor General and Mr. Koe in support of the bill.
Vice-Chancellor.-- It is clear that the For the plea it was argued, that the plaintiff has a just' claim on the Spanish inatters stated by the plea completely de- Government; it is likewise clear that the stroyed the plaintiff's right to an account. Spanish Government had placed stock to a The propositions on which the right was large amount in the hands of some commade to rest were these : -That the Spanish missioners, out of which stock an inscripGovernment had appropriated 50,000 hard tion of 50,000 hard dollars was appropridollars of rentes, to the discharge of what ated to the discharge of this claim. That was due to him ; that this sum of 50,000 the plaintiff has a claim upon that inscriphard dollars was part of the inscription tion, is out of all doubt; but it is a very which had been delivered to, or sold by, the different question, whether he has any claim defendants; and therefore that the plain- on the proceeds of that portion of stock tiff was entitled to an account. Now, to which was delivered to Campbell and Co. the case so shaped the defence made is, that and Lubbock and Co. the certificates delivered to, or sold by The commissioners, in part execution of them, did not include the 50,000 hard their duty, place certain certificates of dollars of rentes, and were provided by the stock at the disposal of these defendants : Cortes, not in order to satisfy the demands For what purpose is this done? Is it of the plaintiff, but for two especial pur- for the purpose of paying the debts due to poses, neither of which at all regarded the the plaintiff? Or, is it in order to pay other plaintiff.
debts, to provide for the payment of which Against the plea it was objected, First, was within the scope of the authority of that, upon the showing of the plea, part of the commissioners the inscriptions, which were to furnish the Now, it is clear from the matters stated fund for the payment of the plaintiff, had in the plea, that the purpose, for which the come into the hands of the defendants, and certificates were placed in the hands of that he therefore haù such an interest as Campbell and Co., was to satisfy two partiwould entitle him to call for an account. cular species of demands, within neither of Secondly, even although the inscriptions, which is that of the plaintiff included. It which were placed at the disposal of the was within the scope of the commissioners' defendants, were to be applied in the first authority to have provided for his claim ; instance to the two specified purposes, of but they have not done so. paying the dishoroured bills, and of satis- It has been said, that the sums placed at fying British claims; yet, after both of the disposal of these defendants, may be these destinations were fulfilled, there more than sufficient for the two special purmight remain a surplus, in which the poses for which they were intended, in which plaintiff would have an interest. Thirdly, case Campbell and Co. must account, for there was a charge that the bills have been the plaintiff will have a right to satisfaction obtained by Campbell and Co. and Lub- out of the surplus. That Campbell and Co. bock and Co. at a very cheap rate, from must account for their receipts, is beyond persons who had not paid a full valuable all doubt; it is not, however, to the present consideration for them. The pecuniary plaintiff that that account is to be rendered advantage which may have been thus by them, but to the commissioners with gained cannot belong to the defendants, whom they concluded the agreement, and who are trustees; they must be answerable whose agents they are. A creditor cannot for it to the persons interested in the resi- be permitted to file a bill for an account