was apparent upon the bill and the plea taken together; and a defendant, who pleaded, was entitled to avail himself of every objection which could be drawn from the matter so stated in the plea. Therefore, the plea ought to be allowed, as showing that the necessary parties were not brought before the court.

Vice Chancellor.-This plea is as deficient in substance as the case made by it is in moral justice.

The plaintiffs are officers and seamen of a ship, who were to be paid for their services on a whale fishing voyage, by certain proportional parts of the cargo produced by it. They state, that on the return of the ship, the produce was given over to the owners; that the owners sold it; that they professed to render an account of the proceeds, and to pay the crew the shares to which they were respectively entitled; but that the accounts rendered were fraudulent, and the sums paid to the seamen far short of what they ought to have received. The object of the bill is to correct the fraud, by compelling a just account to be rendered.

To this bill the owner pleads the articles of agreement, to which, he says, he was not a party; which were made by the cáptain; and which provided that he was not to be liable to any, demands.

Now, I doubt, in the first place, whether any such stipulation would bind this court, or would have any operation to prevent the seamen from enforcing their demands against the owner, whose agent the captain was. But that question does not arise here. For the owners took this property into their possession, acted upon the articles, and professed to render accounts, and to make part payments according to the articles. After that, must not this court relieve against à fraud upon those articles? Must it not inquire, whether the owner has fairly fulfilled that agreement under which he professes to have acted?

As to the objection of want of parties, in what shape is it urged by the defendants? The question is not, whether it appears upon the bill and plea, taken together, that the captain ought to have been brought before the court-but, whether has this objection been taken in the way prescribed by the rules of the court? The plea upon

The Master having reported the answer of a defendant insufficient, the_plaintiff served a subpoena, to put in a better answer: exceptions to the report were taken, and the order for setting them down to be argued, was served before the defendant was brought into contempt, but not till eight days from the service of the subpoena had elapsed: Held, that an attachment subsequently issued, for want of a better answer, was irregular.

After exceptions are filed, and the order setting them down is served, all further process for a better answer is stayed ipso facto; nor is it necessary to come to the court for an order to stay proceedings.

In this case the Master having reported the answer of the defendant insufficient, the plaintiff issued a subpoena against her to put in a better answer. The subpoena was alleged to have been served on the 9th of August:

On the 16th of August, the defendant filed exceptions to the Master's report. On the 17th, the order for setting them down to be argued was obtained. On the 18th, the exceptions were set down, and the order served upon the plaintiff's clerk in court. Several days afterwards an attachment was issued, to which the defendant gave bail.

The defendant now moved, that the attachment should be discharged as irregular.

Mr. Russell, for the motion.
Mr. Roupell, contrà.

In support of the motion, it was argued, that the exceptions having been regularly filed, the service of the order for setting them down to be argued, stayed all proceedings, till the judgment of the court was obtained. That more than eight days from the service of the subpoena had elapsed be

fore the order was served, was a circumstance of no importance. The plaintiff, indeed, might have availed herself of that delay to have brought the defendant into contempt, who then would have had no means of avoiding the putting in immediately of a further answer, unless the court had interposed specially in her behalf. But so long as she was not actually in contempt, she was at liberty to file her exceptions; and if the order for setting down the exceptions was served before an attachment was sealed, no process of contempt could issue afterwards. There was not a shadow of authority for the notion, that the defendant ought to have come to the court for an order to stay proceedings; the established practice was quite the other way.

Against the motion it was stated, that the clerks in court conceived the attackment to be regular, and that proceedings to enforce a further answer were not stayed, unless an order to stay them was obtained.

The Vice Chancellor ordered the motion to stand over, in order that he might inquire into the practice.

Finally, His Honour ordered the attachment to be discharged with costs. A course of procedure, observed his Honour, such as the plaintiff contended to be necessary, would be most cumbrous and expensive.

Plea-Creditor-Agent.

Upon allegations, that, under the decrees of the Cortes and orders of the Spanish Government, the plaintiff had a lien for the payment of a debt due to him on a certain portion of stock, which, along with other stock had been, by the commissioners of the Spanish Government, placed at the disposal of, and sold by, certain agents here, a bill is filed praying an account (amongst others) against the agents: Held, that a good and complete defence may be made to such a bill by a plea, stating matter from which it appears, that the stock placed at the disposal of these agents was intended for special purposes, unconnected with the satisfaction of the plaintiff's demand, and

did not include the stock specifically appropriated to meet his demand; and that it is no objection to the plea, that, after the special purposes are answered, there may be in the hands of the agents a surplus in which the plaintiff may have an interest.

A creditor cannot file a bill for an account against the agent of the principal against whom his claim is, unless he makes out a case of collusion between the principal and the agent.

The plaintiff, Admiral Jabat, was the envoy from the Spanish Government to this country in the year 1822. At the close of that year the Cortes of Spain entered into arrangements for raising a large sum of money, by way of loan, for the exigencies of the state. For this purpose, 40,000,000 of reals vellon of rentes or annuities, at the rate of 5 per cent. on the nominal capital represented by them, were created: and on the 14th of January 1823, Egea, who was the secretary of state and of the treasury, concluded a contract with a person duly authorized as the agent of Bernales, by which the house of Bernales and Co. was appointed to conduct in London the arrangements necessary for giving effect to the original intention of the parties, and for disposing of the certificates of the different portions of the loan. In anticipation of the produce of the loan, Bernales and Co. were to accept and pay to the order of the Spanish Government bills to the amount of 800,000l.; and, accordingly, that house accepted bills drawn by the Spanish Government to the amount of 73,000l., but dishonoured others which were subsequently drawn from Spain for the residue of the 800,000l. In consequence of their so refusing to accept the Spanish bills, the Cortes, in March 1823, annulled the contract with Bernales and Co.; and, at the same time, the government sent orders to their commissioners here to complete the loan on the most advantageous terms they could, by the sale of the certificates.

The failure of Bernales to fulfil his engagements, had occasioned great pecuniary embarrassment to Spain: and the government not being able to supply the plaintiff with money, either for the payment of the salary and expenses of his office, or for the purchase of the stores and

commodities of which they were in want, sent him orders, bearing date on the 25th of March, by which they directed him to enter into contracts with British merchants and manufacturers, and to take all means necessary for supplying the government with various articles not exceeding in the whole the produce of 50,000 hard dollars of rentes, part of the 40,000,000 of reals vellon. These orders were repeated subsequently; and instructions were transmitted to three commissioners of finance, who had been sent to London for the negotiation of the loan, that they should pay to him the monies wanted for purchases, and also the amount of what was due to him for salary, out of the produce of the sale of the certificates, as soon as a sufficient sum of money was realized by such sale.

In pursuance of the orders given him, Admiral Jabat made purchases, for some of which he had actually paid, while for others he had become personally liable. For the sums so disbursed by him, or due to him for salary, the bill insisted that he had a lien on the 40,000,000 of reals vellon of rentes, and on the monies raised by the sale of every and any part of them.

The commissioners of finance not having entered into any final contract for the rate of the certificates, the Spanish Government, in June 1823, caused an inscription to be made in the great book of the public debt of Spain, for the sum of 50,000 hard dollars of rentes, and directed Martinez, who was joined with the commissioners, to sell certificates to that amount, and pay the produce to Jabat, for the above-mentioned purposes.

The bill, after setting forth these matters, went on to state, that, before any treaty was concluded for the sale of the certificates of the inscription of 50,000 hard dollars of rentes, the commissioners, in July 1823, concluded an agreement with Campbell, and Lubbock and Co. for the sale of the certificates of the rentes; that, in pursuance of that agreement, certificates to a great amount, being part of the 40,000,000 of reals vellon, and including the 50,000 hard dollars of rentes, were signed by the commissioners, and delivered to Campbell, and Lubbock and Co.; that Campbell, and Lubbock and Co. sold many of these certificates, and

received for them large sums of money, out of which they ought to have paid the sums due to the plaintiff; and that they still held in their hands others of the certificates, which ought to be sold in order to discharge the defendant's claim. It further set forth, that Campbell, and Lubbock and Co. pretended, that the sale of certificates by them was intended only for special purposes, and particularly to pay various bills of exchange drawn upon Bernales, and negotiated by the Spanish Government, which Bernales had refused to accept and it charged, that, if the funds raised by the sale of the certificates had been applied in preference to the payment of any such bills, such application of the money was fraudulent; both because the holders of the bills had not given full consideration for them, and also, because, being indebted to Campbell, and Lubbock and Co., they had, in discharge of their debts, indorsed them over to these gentlemen, who had the means of giving themselves an undue preference.

:

The prayer was, that an account might be taken of the monies received by Campbell, and Lubbock and Co. in respect of the sale of certificates, and also an account of the certificates remaining unsold; and that the plaintiff might be declared to have a claim upon the monies in their hands, and upon the unsold certificates, to the amount of the pecuniary claim, which he had stated in the bill.

To the case thus made, the defendants put in a plea. That plea began with setting forth a decree of the Cortes, of the 16th of May 1823, which authorized the Government to annul the inscription made in favour of Bernales and Co., and to negotiate and issue such part of the 40,000,000 of reals vellon of rentes, as might be necessary to cover the bills which Bernales had refused to pay. One provision of it was, that the certificates of rentes should be delivered at a stipulated price, to the holders of the dishonoured bills. The plea next stated, that, in pursuance of that decree, Campbell, and Lubbock and Co. concluded with the Spanish commissioners a written agreement, the whole of which was set forth. The agreement stated, that in order to provide for the bills dishonoured by Bernales, and for the payment of British

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claims amounting to 38,2237, 12s. 9d., the Cortes of Spain had directed new inscriptions to be issued by the minister of finance for two sums therein mentioned; and that the commissioners were authorized to grant certificates of these inscriptions, and had requested the assistance of Campbell, and Lubbock and Co. in the negotiation thereof, and in appropriating the proper amounts in certificates in satisfaction of the British elaimants, and of the holders of the bills. It then specified the conditions of the contract between the commissioners of the one part, and Campbell, and Lubbock and Co. of the other. The first two articles of it were in the following words :

"Article Ist. That the commissioners shall, upon the credit and authority of the said inscriptions, issue and sign certificates of different amounts, from 25 dollars to 400 dollars rentes, bearing interest at 5 per cent. per annum, payable to the bearer thereof, and which certificates shall be signed by the said commissioners, and the said James Campbell and Co. shall certify and attest the signatures of the said commissioners thereto; and the interest or dividends thereon, shall be made payable at the counting-house of the same James Campbell and Co., London; but the said James Campbell and Co. are not in any manner to guarantee or become responsible for payment thereof, further than the sums which may be placed in their hands for that purpose, as hereafter stipulated and provided; and the same James Campbell and Co. shall be paid the same commissions for making such payments as were paid to Messrs, Ardouin, Hubbard and Co. of Paris, for making simr payments for the Spanish Government, upon antecedent loans.

said certificates to the holders of the said bills of exchange and British claims, according to the respective amounts thereof, as agreed on and adjusted by the officers of the Spanish Government in Spain, with the holders of the said bills, and the said British claimants; and the said Don Antonio Martinez is to sign his approbation of the sums to be paid to each holder of the said bills, and of the orders of the Spanish Government in favour of British creditors; and if, upon a full and correct statement of the payments to be made in certificates as aforesaid, it shall appear that the said two inscriptions are inadequate to the discharge of the whole sum, to be paid at the rate stipulated in the instructions under which the said Don Antonio Martinez is acting,then he does hereby engage and agree to apply to the Spanish minister of finance for a further sum of inscriptions, conformable to the instructions in that respect which he has received from the Spanish Government, to enable the said commissioners to issue certificates thereon for the deficiency, with the first year's interest or dividends thereon, and the expenses attending the execution of the decree of the Cortes, of the 16th May last, and the royal orders confirming the same."

The seventh article declared, that Campbell and Co. and Lubbock and Co. should be at liberty to act as the agents of any of the holders of bills, or British claims, and in that character to receive the certicates to which such bill-holders or creditors should be entitled. The ninth provided, that, out of the monies received by Campbell and Co. and Lubbock and Co., certain sums should be paid to the commissioners for their personal expenses, &c.

The plea went on to state what had been done under these arcicles of agreement; and it averred, that the certificates deliver

Co. did not form any part of the inscription of 50,000 hard dollars of rentes, mentioned in the bill; that no part of the produce of the certificates, which had been delivered to them, were ever, to the best of the knowledge, information, or belief of the defendants, ordered by the Spanish Go

* A Commission had been established for the liquidation of British claims.