discovered her rights, and was unable to proceed at law by reason of the outstanding term of 200 years. The bill then stated, that the defendant pretended that some recovery had been suffered by Lord John Cavendish, as tenant in tail in remainder, under which, and Lord John's will, Lord George Henry Cavendish became absolutely entitled to the premises; and it charged, that no valid recovery was ever suffered of the estates, and if it were, that the estates were so re-settled, that, in the events which had happened, the plaintiff, as the right heir of Sir William Lowther, was entitled thereto; and that, so it would appear, if Lord G. H. Cavendish would set forth when and in what court the recovery was suffered, and who were the parties thereto, &c.; and if he would produce the deeds creating the tenant or tenants to the precipe, and leading or declaring the uses of the recovery, &c. all which deeds, if they still existed, were in the possession of the defendant. The prayer was, that Lord George Henry Cavendish might be decreed to deliver up to the plaintiff possession of the premises, and of the title-deeds relating thereto; that he might account for the rents and profits received to his use since 1803, and that he and the other defendant (the person in whom the term of 200 years was vested) might be restrained from setting up that term in bar to the plaintiff's proceedings at law. A plea was put in to the whole of the bill. The plea stated, that upon the death of Catherine Lowther, Lord George Cavendish was seised in possession of the premises as tenant for life, and Lord John was entitled to them for an estate in tail male in remainder, expectant upon the determination of the prior estates; that indentures of lease and release, (the purport of which was set forth,) dated in 1766, were executed by Lord George Cavendish and Lord John Cavendish, creating a tenant to the præcipe for the purpose of suffering a common recovery, and also leading the uses of the recovery; according to which, after the estates tail created by Sir William Lowther's will, the ultimate remainder was limited to the use of the survivor of Lord George, Lord Frederick, and Lord John in fee; that accordingly a re covery was suffered to the uses so declared; that Lord Frederick survived Lord George and Lord John; and that upon his death in 1803, the defendant, under a title duly derived from him, entered into possession of the premises. Mr. Sugden and Mr. Pemberton were in support of the bill. Mr. Horne and Mr. Munro were for the plea. For the plaintiff it was said, that, in a future stage of the proceedings, the legal validity of the recovery mentioned in the plea would be denied; for it was a remote, and not an immediate remainder man in tail, who had joined with the tenant for life in suffering it; and the case of Smith v. Clifford, which favours the doctrine, that the ultimate reversions and remainders may be barred by such a recovery, had been regarded with doubt by very great authorities. That question, however, would be waived for the present; and the ground on which the plea ought to be disallowed, was, that it was bad in point of form. The plea relied on the suffering of the common recovery. Now the bill contained an allegation, that the lands were so settled by the recovery, that, under the uses declared upon it, the plaintiff was still entitled. There was also an allegation, that the defendant has documents in his possession which would show that the title is not in him, but in the plaintiff. These allegations ought to have been denied by an answer supporting the plea; and, consequently, the plea, not being so supported, must fail. Vice Chancellor.-The question here is, does this case come within the rule, that where, though the matter of the plea is admitted, there are other allegations in the bill sufficient to avoid the effect of it, those collateral allegations must be denied, in order to make the plea a full and valid defence? The charge in the bill is, that, if any recovery were suffered, the uses of it were so limited that the plaintiff is entitled under them. Now the plea is a complete answer to that allegation; for it sets forth the uses of the recovery, and under these uses the plaintiff is altogether without title. The matter charged in the bill is not col 1 Term Reports, 748. The defendant being in default for want of answer, one of the co-plaintiffs dies; before the suit is revived, an attachment is issued against the defendant: Held, that the attachment is irregular. executor. The bill was filed by a number of persons who had vested interests in certain portions of a pecuniary legacy, against the The defendant did not put in his answer within due time; one of the plaintiffs died; and subsequently, an attachment issued against the defendant for want of answer. The defendant now moved, that the attachment should be discharged as irregu lar. The alleged ground of irregularity was, that, by the death of the co-plaintiff, who had a vested interest in the subject of the suit, an abatement had taken place, and that till the suit was revived, no process of contempt could issue. Mr. Pemberton, for the motion. Vice Chancellor.-The interest of the deceased plaintiff is not now represented : his executor or administrator must be brought before the court. It was clearly irregular to issue the process of contempt while the suit was thus abated. The attachment was discharged with costs. A bill praying for an account and charging fraud, the defendant answers to the whole of it, except certain parts pleaded to; and then in bar to the relief, and to a few specified questions, he pleads a release with averments negativing fraud: Held, that the plea was overruled by the answer, because the answer extended beyond the allegations of equitable matter, which would have avoided the plea, though it did not go to any of the questions specified in the plea. 3 The bill, filed by four seamen on behalf of themselves and the rest of the crew, stated, that the defendant, Smith, being the owner of a ship called the Granger, engaged the four plaintiffs, and divers other persons, to go out as officers and seamen in that vessel, on a whale voyage to the South Seas; that articles of agreement were signed, by which, upon their return to the port, of London, they were to receive respectively, in lieu of wages, certain specified proportions of the clear produce of the cargo; that in October 1823, they returned with a large cargo of oil, and a considerable quantity of ambergris; that Smith took the cargo into his possession, and sold the oil, but kept the ambergris unsold; that, being in distress for money, they applied to him to make advances to them, whereupon he stated, that, upon the whole clear produce of the cargo, including the unsold ambergris, for which he himself was willing to give 9007., their respective shares would amount to certain sums which he specified; that they at first refused to accept the sums offered, and insisted upon the production of the accounts, but that the exigencies of their situation compelled them finally to yield; that they then signed or put their marks to some papers produced by Smith, which were not read over to them, and which they understood to be receipts for the sums which he had mentioned; and, finally, that Smith, after obtaining these supposed receipts, did not pay the sums which he had mentioned as the respective shares of the plaintiffs, but only a part thereof, and retained the residue in discharge of monies alleged to be due to him from the plaintiffs, on account of supplies and advances furnished and made to them during the voyage, though he had never produced any account of those demands. The bill then charged, that, in ascertaining the clear proceeds of the cargo, Smith had knowingly and fraudulently deducted from the gross produce, on account of customary and proper charges and allowances, divers sums far exceeding the ordinary amount of such charges, and much greater than what he had actually disbursed in respect thereof; and that the ambergris, which he had estimated at only 9007., was B 2 worth 3000l., and 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 plaintiffs 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 variance or inconsistent with, any thing which he hath herein before 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 officers, seamen and crew, do not 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 aforesaid, 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 voyage, 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 1823, 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 if the bill had merely sought an account, without making an especial case of fraud, a release would have been a complete defence to it; that the allegations of fraud, being denied both by averments in the plea and also by the answer, made no alteration in the case; and that, therefore, the plea must prevail. The plaintiff replied, that the plea, if good for any thing, would have been a defence against the whole of the bill. But as the defendant had given part of the discovery, he was bound to give the whole. Vice Chancellor.-The form of this plea is unusual. The defendant first answers to the greater part of the bill, and then pleads in bar to the whole of the relief, and to certain parts of the discovery prayed by it. There might be a doubt whether this mode of meeting a bill is not objectionable in point of form. But, without determining that question, it is clear that this plea is overruled by the answer with which it is joined. The argument for the defendant contends, that the answer is only to the special matter, which, if not negatived, would have avoided the plea. Now, the fact is not so. The answer extends to many circumstances, which have no reference to the special matter which would avoid the plea. Mr. Knight submitted to the court, that the form of the plea protected it from the objection which had been taken. It was enough, if nothing was answered which the plea professed to meet; and it was of no importance, that the plea might have been made to cover more than it had actually purported to cover; and that some of the matters, which it might have covered, but which it did not purport to cover, were answered. Here the plea selected certain questions, which it declined to answer; and nothing was answered, which it professed to cover. Vice Chancellor.-A defendant, who, while he puts in a plea, answers what the plea might have protected him from answering, overrules his plea. A plea of a release covers the whole bill, unless there be special allegations of equitable matter which would avoid the release; and then the matter of such special allegation must Articles of agreement are executed between the crew of a vessel, of the one part, and the captain, of the other part, containing a stipulation, that the seamen are not to have any demand against the owner of the ship: the owner subsequently acts under the agreement, and, in pursuance of it, makes payments to the seamen out of the proceeds of the cargo: Held, that the owner, by such conduct, becomes a party to the agreement, and that a bill for the performance of the agreement may be maintained against him. The case stated by this bill was similar to that in Williams v. Smith. The plaintiffs were sailors, who had performed a South Sea whaling voyage under articles of agreement, which entitled them to certain aliquot parts of the cargo. The defendant was the owner of the ship: he had taken possession of the cargo, disposed of it, made some payments to the plaintiffs, professed to render accounts of the transactions. These accounts, however, were, it was alleged, altogether fraudulent: the prayer was, for the taking of the accounts under the sanction of the court, with the consequential directions. and To this bill the defendant pleaded the articles of agreement, under which the voyage had been made. These articles were, not between the sailors and Smith, but between the sailors and the captain; and there was contained in them an express stipulation, that the officers and seamen were not to have any demand against the owners. The captain was not a party to the suit. Mr. Hart and Mr. Girdlestone appeared in support of the bill : Mr. Horne and Mr. Knight, for the plea. The bill, it was argued for the defendant, seeks to enforce a demand against Smith, the owner, upon the footing of certain articles of agreement. The plea shows that Smith was no party to that agreement; and, therefore, it is not against him that performance of it is to be sought; particularly, inasmuch as there is an express stipulation, that the agreement is not to create any demand against the owner. Nor will any accounts gratuitously rendered, or payments voluntarily made by him, subject him to a demand from which he is protected by the articles. Vice Chancellor.-The bill is filed to carry into effect an agreement, to which the plaintiffs say thẹ defendant was a party. Upon the plea it turns out, that, in truth, he was no party to the agreement. But a person, who is originally no party to an agreement, may, by his subsequent conduct; make himself a party. Now, what acts can be stronger for that purpose than the conduct of this defendant? He has acted under the articles; he has availed himself of them; he has paid money under them. He has, therefore, made himself a party to the agreement. The plea was overruled. COCKELL V. WHITING. If a person, not originally a party to an agreement, acts under it, and professes to render accounts, and make payments according to its provisions, a bill for the performance of it may be maintained against him, even though the original agreement stipulated that it was not to extend to create any demand against him. If a plea in bar is bad, although it appears on the matter contained in it, that the suit is defective for want of parties, the objection of the want of parties cannot be urged on. the argument of the plea. The question, which was decided in Gostling v. Smith, was again argued in this case. The bill was to the same purport as it was in Gostling v. Smith; and was, in like manner, met by a plea of the articles of agreement made between the crew and the captain, to which the defendants, the owners, were no party, and which contained a stipulation, that nothing in them was to extend to give the officers or seamen any demand against the owners. Mr. Phillimore appeared in support of the bill; Mr. Jacob, of the plea. For the defendants it was said, that, in the first place, the articles themselves gave no right to sue the owners; the remedy which they provided was only against the captain, who covenanted to pay, or cause to be paid, to the sailors certain shares of the net proceeds of the cargo. Secondly, The subsequent conduct of the owner created no liability as between him and the seamen: for he had done nothing, except in pursuance of the stipulations of that instrument, which excluded them from any remedy against him. The articles provided, that the owners should be at liberty to sell the cargo; and all that he had donethe sales which he had caused to take place -the accounts which he had renderedthe payments which he had made, were consequential to, not inconsistent with, the situation in which the articles placed him. Thirdly, There was no consideration in the agreement, moving towards the owner, for any liability to be incurred by him. The cases of Johnson v. Machielsne,* and of Giener v. Meyer,† were cited upon this part of the case. It was further argued, that there was a want of parties. The captain, who was not only a party, but the sole party (exclusive of the plaintiffs and the rest of the crew) to the articles, was a necessary party to a suit seeking to enforce the performance of them. This defect did not appear on the bill, which concealed it by misrepresenting the particulars of the agreement. But it 3 Campbell, 44. +2 H. Blackstone, 603. |