upon him; that the bills were tendered to Machado for acceptance; that he refused to accept them; that, the bills being unpaid, the plaintiff had brought an action against him, and arrested him for 80,000l., and had declared for money had and received to his use; and that he intended, when he should have obtained the necessary discovery, to add special counts.

The bill charged, that part of the rentes had been, in 1822, applied by Machado to the use, and according to the direction, of the executive government of Spain; and that he had, by various acts and words, admitted the authority of the Spanish government, to dispose of the monies in his hands. There were also charges as to various collateral matters; and a full discovery was called for, as to all the dealings, accounts, and correspondence relating to the abovementioned monies.

To these allegations of the bill, and to the discovery and commissions prayed in respect thereof, the defendant pleaded.

Intermixed with these statements, were allegations that the defendant had promised to accept the bills, or to accept them when they came into his hands, &c. These latter allegations were answered.

The plea to the former part of the bill set forth articles of various treaties, the effect of which was, that the French government was to provide certain funds for the discharge of debts, due from it to Spanish subjects. The first of these was the treaty of 1814, the 19th article of which was: "The French government engages to cause to be liquidated and paid, all sums which it shall find itself bound in duty to pay, in countries beyond its territories, in virtue of contracts, or other formal engagements entered into between individuals, or private establishments, and the French authorities, both for supplies and legal obligations." The last was a convention made between France and Spain, in April 1822; by one article of which, France, who had retained in her own hands part of the monies which she had engaged to pay, in discharge of the claims of Spanish subjects, agreed to pay to such persons as his Catholic Majesty should appoint for that purpose, the overplus of the rentes, which the French government had kept as a deposit, together with all the accumulations of compound in

terest upon it. The plea, after tracing the history of these transactions, averred, that the overplus of rentes in the said treaty mentioned, was the overplus of the rentes, which, according to the third article of a treaty of the 28th of March 1818, was to remain deposited in the manner therein mentioned; that the French government, after the conclusion of the said convention, and in pursuance thereof, caused the said overplus of the rentes, in the said last-recited treaty mentioned, to be transferred into the name of Jose de Noguera, who was the person duly authorized in that behalf, by his Catholic Majesty, for the purposes in the said treaties and conventions, and for no other purpose or purposes whatsoever that the said Jose de Noguera, by the order and authority of his Catholic Majesty, afterwards, at different times, transferred certain parts, but not the whole, of the said overplus of rentes, into the name of this defendant, being the person duly authorized in that behalf by his Catholic Majesty, as consul-general and agent-general of the Spanish nation, at Paris, for the same purposes in the said treaties and conventions mentioned, and for no other purpose or purposes whatsoever: and that at the respective dates of all the aforesaid treaties, there were, and that there still are, as this defendant verily believes, debts due to persons and private establishments in Spain, within the meaning of the said 19th article, and to the payment of which the said overplus of rentes, so transferred as aforesaid, is appropriated, to an amount greater than the said overplus of rentes, and the remainder of the funds provided for that purpose by the said treaties, will be able to satisfy or discharge.

The plea next set forth a royal decree of Ferdinand the Seventh, appointing two boards for the examination and liquidation of the claims of Spanish subjects under the treaties; and it then proceeded to aver as follows: that in pursuance of the said royal decree or ordinance, two several public boards,-one of them styled the Board of Examination and Liquidation, and the other of them styled the Board of Appeal,-were duly formed and appointed, and are both of them actively engaged in liquidating the claims of persons, who are entitled under the said 19th article of the first

mentioned treaties, and under the subsequent treaties, to have payment made to them out of the said overplus of rentes; and that both of the said boards hold their sittings at Madrid, in the kingdom of Spain. The plea then proceeded as follows: "and for plea this defendant further saith, that the said complainant had not, on the 30th April 1822, or at any subsequent time, and has not now any sum due to him, or any claim under any of the treaties and conventions hereinbefore mentioned, or under any of the articles or clauses therein contained, or any interest in, or right to have or receive any portion of the funds, provided, paid, or transferred, for the purposes in the said treaties and conventions or any of them expressed and for plea this defendant further saith, that the 12 millions of rentes or inscriptions, and the interest in the said bill mentioned, and the monies to which, or to some part of which, the said complainant by his said bill claims to have some right; and every part of the said rentes, inscriptions, interest, and monies, are portion of the said overplus of rentes, in the said treaty of the 30th of April 1822 mentioned, or the produce and proceeds thereof; and were not, and are not, portion of any sum placed by the government of France, at the order and disposition of the government of Spain."

Mr. Heald and Mr. Russell appeared in support of the plea ;

Mr. Sugden and Mr. Anderdon, contrà. In support of the plea, it was stated, that the plaintiff had put his case in his bill in two ways. In some passages, which were here and there intermixed with his story, he had alleged that the defendant had made promises, done acts, &c., by which, independently of any consideration of the interest of any party in the fund in question, he would have become, or might have become, personally responsible for the sums claimed by the plaintiff. To these the defendant had answered. The plea, therefore, to the other parts of the bill is, in fact, a plea to a bill, which prays discovery and commissions in aid of proceedings to enforce the alleged right of the plaintiff, to have the specific sum mentioned by him applied in satisfaction of his demand; and the way in which the plea meets the plaintiff's case, is,

that the right to this fund, and every part of it, is in other persons, and is not and cannot be in the plaintiff.

For this purpose, tracing the origin of the fund in question, under a succession of treaties, it shows that it is devoted by those treaties to the satisfaction of a specific class of demands; that it is not sufficient to satisfy all those demands; that the ascertainment of their amount is now in progress; that the plaintiff has no claim under these treaties; and that he, in fact, calls upon the Court to lend him its assistance to effectuate a breach of trust, by causing to be paid to him monies, which, by the treaties between France and Spain, (treaties to which the other principal powers of Europe are, either in form or in substance, parties,) were devoted to widely different purposes. The Court will not interfere to assist so iniquitous a proceeding.

Besides, the action, in aid of which the bill is filed, is for money had and received to the use of the plaintiff. Now, upon the transactions disclosed on the plea, taken in conjunction with so much of the bill as is pleaded to, it is clear, that whatever the rights of the plaintiff might be, if he adopted a different course of proceeding, it is impossible that he could sustain the form of action which he has brought: Williams v. Everett. (1)

The Vice Chancellor stated his opinion, that the plea was good in substance; and, that if it could be resisted, it must be on some point of form.

The counsel for the plaintiff did not suggest any objection in point of form; but contended, that the plea was substantially bad. For it was a plea which went, in fact, to show that the plaintiff had no merits in the action which he brought. Now, that was a question to be tried at law; and the Court had no jurisdiction to try it, in deciding this plea. Lord Thurlow had so decided in Hindman v. Taylor. (2)

The plaintiff had a title derived under what was at the time, and was by all Europe acknowledged to be, the supreme legislative and executive government of Spain. This title he was seeking to enforce

(1) 14 East, 584. (2) 2 Bro. Chanc. Cases, 7.

at law. The defendant could not bar him from the discovery and the commissions, which he sought in aid of this action, by pleading that he had no title. This was the substance of the plea. The title to these funds, says the defendant, is in other persons, and it is not in you. In this respect the plea is substantially a double plea.

In reply, it was argued, that a more monstrous proposition could not be suggested, than that a bill for discovery and commissions could not be met by a plea, negativing and destroying the plaintiff's title. If such were the doctrine of the Court, any plaintiff, by merely bringing a sham action, and then filing a bill stating a supposititious case, might compel what discovery he pleased, with respect to matters in which he had not a particle of interest. It was clear, that the Statute of Limitations, if pleaded with proper averments, might be a bar to a bill for discovery, as appeared both by Sibbald v. Baillie, (3) and by a late case, Macgregor v. the East India Company, (4) before the Vice Chancellor. In the latter case, the plea was defective in form; but the Court gave leave to amend. Yet that was a plea of matter, which was a legal bar to the action. Hindman v. Taylor is a case by itself, and can never be an authority, except where the circumstances are entirely similar.

When a plaintiff, relying upon a legal right, comes upon the ground of that right, claiming equitable aid, and the defendant controverts the legal right, which is the sole foundation upon which the other party claims to be heard in equity, the Court must look at the legal right; for that is the point in issue between the parties; and it is not the defendant, but the plaintiff, who brings it into question here.

Vice Chancellor.-The bill states generally, that by certain treaties and conventions, this sum of money was placed by France, at the order and disposition of the King of Spain; that this fund came into the hands of a gentleman, who was at that time holding a public office in Paris; that it was afterwards, by a like order and dis

(3) 15 Ves. 185. (4) 4 Law Journ. Chanc. 23.

position of the King of Spain, transferred from the gentleman holding that public office to the present defendant M. Machado; that M. Machado expressly held it upon trust, to apply it according to the direction of the executive government of Spain; that some time after, (I think in the year 1822,) the Cortes of Spain then assembled, and forming a part of what was considered the legitimate government, had passed a decree or order, whereby they authorized the executive government of Spain, to apply this fund, so in the hands of M. Machado, to the then pressing exigencies of the state; that in consequence of that decree of the Cortes, the finance minister of Spain applied to the plaintiff, who had been an agent and contractor for the supply of the army of Spain, to advance a certain sum of money upon the credit of the funds, so in the hands of the defendant M. Machado; that he accordingly did comply with the request of the minister of finance, and did advance no less a sum than 111,000l. apon the credit of the funds so in the hands of the defendant; and that he received, by way of security for the sum so advanced, certain bills of exchange, which were drawn, not, I think, by the minister of finance, but by a public officer called the treasurer of Spain, upon the defendant; that those bills were presented to the defendant, and ought to have been paid by him, inasmuch as he expressly received the money upon the ground that it was a trust, to be at the disposition of the executive government of Spain; and that the Cortes, representing that executive government, or authorized to act on the part of the executive government, had directed the application of it through the minister of finance, to the exigencies of the state. The bill, besides containing this statement, upon which the title of the plaintiff is founded, contains many allegations of conduct and admissions, on the part of the defendant, which would give a personal title as against him.

To this bill, thu shortly stated, the defendant has put in an answer to all those parts of it, which he considered as introduced for the purpose of founding a personal charge upon his conduct and admissions and as to the general title of the plaintiff he has put in a plea; and the substance of the plea is, that it is not true that

this money, by conventions between France and Spain, was placed generally at the order and disposition of the executive government of Spain; but, on the contrary, this money, expressly by the conventions and treaties between France and Spain, was specially appropriated, not as money which was to be applied to the exigencies of the state, but expressly for the purpose of being applied to the indemnity of certain Spanish subjects, who were creditors of the French government; and that he the defendant had received it, therefore, not for the purpose of being in his hands, subject to the order and disposition of the executive government of Spain, but for the purpose of being applied, as it ought to be applied according to the effect of these treaties and conventions, viz. to be applied in payment of the claims of Spanish subjects upon the government of France, when those claims should be settled by the commissioners, who, according to the terms of the treaties, were to be appointed for that purpose. The plea goes on to state, that the King of Spain has, I think, in the year 1824, actually named commissioners for the purpose of adjusting these claims; that the commissioners are now in the course of exercising that commission; and they are proceeding to investigate the claims, and to determine who the persons are, who are to be entitled to this fund; and the plea avers, that there are claimants entitled according to the spirit and true construction of the treaties, to an amount greatly exceeding the funds in the hands of the defendant. The question then is, whether, upon this plea, this plaintiff can have a title.

Now, the Cortes cannot pretend to a higher authority under these treaties, than the King of Spain himself could pretend to. The utmost the Cortes can say, is, that they, by the effect of the constitution of Spain, as it stood in 1822, were entitled to exercise the same authority over this fund, that the King of Spain, according to the letter of the treaty between France and Spain, was entitled to exercise that is the utmost to which they could pretend. Now, suppose the King of Spain had himself borrowed this money from the plaintiff, upon the faith of the fund in the hands of the defendant, in order that VOL. V. CHANC.

that fund might be applied, not for the indemnity of the Spanish subjects, but to the general exigencies of the state, and he had filed a bill to give effect to that application, the question would be, whether this act of the King of Spain, in thus attempting to divert this fund from the purpose for which it was destined, by the treaties and conventions with France, is so much against the general principles of equity, that he could receive no aid for that purpose from this court. I am of opinion, that, if the King of Spain himself had made the destination, which has been made under the authority of the Cortes, it would have been the duty of this court, to refuse its aid to that destination. that destination. Consequently, it must be its duty to refuse its aid to the Cortes, who, upon many principles, may be considered as not representing the King of Spain, according to the effect of these treaties. But, even admitting that they do represent the King of Spain according to the effect of these treaties, the destination made by them of this money could not be aided by this court. I am of opinion, therefore, upon the substance of this plea, that the plea must be allowed.

With respect to the answer which accompanies the plea, the plaintiff has not called for the opinion of the Court upon any matter of form; he desired the opinion of the Court upon the substance of the plea; and the Court, therefore, has not entered into the consideration of any matter of form, and has given no opinion upon the subject.

[The Counsel for the plaintiff inquired, whether the plea, in his Honour's opinion, was a good bar to the commissions, as well as to the discovery.]

Vice Chancellor.-It is a bar to the commissions, as well as to the discovery. I give no aid whatever.

I ought to have observed, that a point was raised here of a different kind in the argument. It was supposed, that, provided the Court should be of opinion that the plea was in substance good, that is to say, that the Cortes had no authority to deal with this fund as they have done; yet it ought not to refuse a discovery to the plaintiff; for that the rule of this court was, that there could be no such plea to

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discovery. Now, I am not of that opinion, ---and it would be a great public misfortune, if it were the doctrine of this court, that any man, by merely alleging an interest, could compel another to disclose the most private and confidential transactions; and if it were not permitted to a defendant, when such an attempt was made either by curiosity or malice, to put the plaintiff to the proof of that interest, which he alleged on his bill. I am of opinion, therefore, that to a bill of discovery, it may at all times be pleaded, that the plaintiff has no interest in the subject matters, as to which he seeks discovery. Such is the plain doctrine of common sense, and such will be found to be the clear doctrine stated in my Lord Redesdale's book, which was referred to, indeed, on the part of the plaintiff. I am of opinion, therefore, that this plaintiff, not being entitled to relief, is not entitled to a discovery, inasmuch as this is, in truth, a plea, that he has no interest in the subject matter, as to which he seeks a discovery.

This was a petition of certain freeholders of the county of Stafford, on behalf of themselves and the other freeholders of that county. It stated, that, Thomas Sparrow having resigned his office of coroner, whereby the same became vacant, a writ de coronatore eligendo was duly issued, commanding the sheriff of the county to cause another coroner to be chosen in the place of Thomas Sparrow ;-that the writ de coronatore eligendo was delivered at the sheriff's office at Stafford, to Messrs. Keen, who acted as under-sheriff, or as the deputies of the under-sheriff, on the 1st of April 1826; that on the 5th of the same month,

Mr. William Keen wrote to, and informed the persons who were candidates for the office of coroner, that the sheriff had appointed Thursday the 27th of April then instant, for the election of a coroner, in the place of Thomas Sparrow; that the county courts for the county of Stafford are held once in twenty-eight days; that the next county court to be held after the receipt of the writ, fell out to be held on the 13th of April; that in pursuance of the act of parliament, passed in the 58th year of George the Third, intituled "An Act to regulate the Election of Coroners for Counties," the sheriff of the county ought to have proceeded to the election of a coroner, in the room of Thomas Sparrow, at the county court held on the 13th of April; that the said sheriff did not proceed to such election on the 13th of April; but on that day he gave notice, that he would proceed to an election of a coroner for the county, in the place of Thomas Sparrow, at his county court, to be held by adjournment, at the Shire Hall in Stafford, on Thursday the 27th of April then instant, at 10 o'clock in the forenoon; that several of the peti tioners, and a great number of freeholders of the county, attended at the county court, held by adjournment at the time and place in the notice mentioned, for the purpose of the election, when two candidates, John Dent and John Ford Hyatt, were proposed and put in nomination as fit persons to fill the office of coroner; that after the candidates had been so proposed, the election not being determined upon the view, with the consent of the freeholders then present, a poll was demanded on behalf of John Dent, for the determination thereof, and the sheriff forthwith proceeded to take the poll accordingly; that the petitioners, and several other freeholders of the county, gave their votes in favour of John Ford Hyatt; that the poll was proceeded in from day to day, Sundays excepted, until the same was finally closed, on the 8th of May 1826, when the undersheriff, or Mr. William Keen his deputy, in the absence of the sheriff, declared the majority of the votes to be in favour of John Dent, and that he was duly elected a coroner for the county; and that the sheriff had since returned John Dent as duly elected.

The petition contained also various