The Sun.
London, England, 1808-12-10 00:00:00

ZIESSTTER V. WOOD, BART.

In this rase a bill had been tiled, for the specific
performance of an agreement for the exchange of'
certain estates, of equal value,„ in the Borough of
Shaftesbusry„ by-the Defendant, an eminent attorney '
in Shaftesbury, against Sir Mark Wood, Bt. and an
injuneftOß had been granted,' till the answer should'
be given- in, restraining, the Defendant from suing
out execution -on an ejeament he had obtained
against the Plaintiff at Common Law, 'and turtling ,
Lim out of the possession of the subjetts, as to the:,
contrast for the exchange of which specific perform-
ance was sought by the bill. The answer being at
length given in, fit was now moved that the injunc-
tion be dissolved.
Mr. HART and Mr. RUSSELL sheaved cause why
the ivjunCtion should be continued. So far back as,
the year 1804,.the Defendant in .ihe present aaiun
(then Colonel, noW Sir Mark Wood), whip had
lately purch scd a valuable property in Shaftesbury,
which had formerly belonged to a Mr. Bryant,
agreed to_ exchange the same with the present 'Plain-
tiff for another property of equal value, in the same
place, belOnging to the Plaintiff. An agreement to,
this elle& s as committed to writing, and being
signed by the parties,. was entrusted to the care of.
a Mr. Templar, a [Diana] friend, till the transaction
should be concluded by the execution of the neces-
sary conveyances. The Defendant had so far acted
on this agreeintnt as belually to make a Conveyance
of a small part of the property, in favour of the
Plaintiff, but when called on to complete the con-
veyance-of the whole, he declined, and ultimately
-brought an ejectment, in which he-prevented the
Plaintiff having a defence against it by. law*.

In his answe-r to the Plaintiff's 1311), the Defend-
ant had exhibited a very convenient want of memory
conne6ted with almost every circumstance which
could support the Plaintiff's plea; and as an excuse
Tor not perkortning his agreement, had contented
himself with stating the exititence of a precedent
condition, a sort of pocket defeasance, which, with-
out explaining the nature or terms of it;he contend-
'4 had not been Complied with at` the time fixed- for
the Nvrforinance of it, in consequence of which he
wa, liberated from .his agrecinent to complekthe
'exchange in questiov. Such a defence, however,
his Lordship would not,suifer to avail the Defendant
to the extent, •at least, of dissolving the injunction,
which mu,t, iu effeal,. by h;verting the,posszssion,
determine the merits of the Bib on this interlocutory
in ition as ttfe6tually as it could cm: a hearing.
_ _

Sir S. ROMILLY and M. COOK ,t,:.rgtied, that as
the injunction in this case had been grwted 'only till
tale answer should 'be given in, its being:continued
or dissolved,- would diipend on the terms of the an-
swer alone. In his answer, the Defendant h po-
sitively the existence of a condition to be
performed by the Plaintiff, without which the agree-.
men: entered into between the patties was not to
be carried into etred-7-that this condition was limit-
ed in point of time—that the time hAd expired;
and y e z that the condition bad not beets complied

with----a course that the agreement for the ex-
change • in question-,-dependent .and consequent on
thi,: precedent c,..ndition, had fallen to the•ground.
-It might.not ,be proper or becoming ta, trouble his
Lordship with the natureof .the condition! alluded
to, or to enter the same on the file of that; Court.
In the Boroughs in Dorsetshire, Somerset; atose
scrupulous notions of. propriety in.eledion matters
might
.not , be felt to the same degree• as. in other
plates. But it was sufficient barely. to read the-let-.
•terof the -Plaintiff. to Mr. Temolar.. the gentleman
who was,.to- be the mutual cusiodiar of • the agree-
ment in question, and also of the conveyances to be
granted,, had the transaaion ever gone that 'length,
without seeing (bat the Plaintiff had not in his Bill
.given a fair state of the case, or one which could ever
.in its present shape entitle him to: the equity got
that Court. The letter bore that his (Mr.,Templar's)
friend; . Colonel .Wood,; ailed very .honourably
by. M r..Messiter, in ngreeing to Confirm :t he exchange
which was to have-been, made•by Mr.. Bryant.: that
:though never two properties were more :equal .in
-.value, the exchange was, highly agreeable- to him
(Mr. M.). as it insured-him" the possession of the
house in which .he lived.- That it should be his
•ut most endeavour to serve ColonetW, •in every re-
.sped, acid to induce bis friends to do the same, as a
pledge -of which he now sent Mr. Templar. that
letter.. He inclosed hint (Mr, T.) the
.eounter agree-
ments to remain -in his hands, as a mutual friend,
till the.business should •be entirely settled. The
conveyances should; also be sent to hint when ready,
to. remain with him-till afier the, meeting of the
next. Parliament ; and
,he (Mr...M.)-hoped whether
the in-operty should then remain-Col: .Wood's,,,or be
:made over to another, that he and his'friend should,
not withstanding, represent it. .
The LearneclQokinsel contended, that it. was im-,
..possible to read theletterand rtorsee that the Plain-
titt had misrepresented' hisscase; atid asked equity
where be.was.entitled;to none. -That- the Defendant
,had been so far untOrtnuate as to giVe to the Plain-
-411'a conveyance to_sornesruall part of the property,
Was to.be. regretted,: :but • it•could-never ,render it im-
Teratimon,the Defendant to.give him the, remaining
part. Because be had,giveo his cloak be.was: not to
give his coat also. Such ,an argument • •tnight
indeed have been,of.some avail, had the 'conveyance •
even'ota• i?mall part of this property to be exchanged,
-bee, Made b, the Plaintiff, bUt
_baying been:made
`by the Defendant, it must be esteethed sufficient that
'he was content to lose what he had already given,
without adding the remainder of his property.
• The Loan CH A NCELL.O4I was decidedly of opinion,
from 'the *hole tenor of -they Plaintiff's letter, that
something conne&ed With eliion puiposes was in
the C'ontemplatiOnofthe parties when they executed
the agreements in question,: For, it was to be oh-
.served•that it was not one copy of the agreement
only which w as executed, and in which case a mu-
friend-, wOuld have been necessary to aaas the
'eustOdiar'.'6l it, till tie transaction could be Conclud-
`ed ;.:b'orthere were here: actually two copies of the
, wit-cement, and yet both. duplicates W'eee depo,ited
in the hands of Mr. Tetuplar. This was not all 7
*for even after. the .c6oveyant's were ey...<::tatetf they
•were nk,,t to be'del4Cred the parties entitled to,
them, but were,' in lik;thataiter,:tO. remain
Mr. Templar's hands-and tiii* when !--Till after
the meeting of next Parliament f.' such cir-
cumstances as these-, the Plaintiff had grit horn the
Defendant his Wholeestate; 'without pay-ing him tiny
Consideration' for it, the Court would not have in-
terfered to recover for the Pefendant -in-:price Of
`his' property; neither, on the other hand, yould•it
interfere to procure to the Pl'itintiff the 'est'Ate, if he
could nOl'otherwise compel the Defendant to make
good bas agreement. His Lordship should look:into
the answer,---and-meotion to-niorroW if he saw
,any
-thing in, it to nAke -him change his opinion ; but
his impression, arising from the Plaintiff's letter,
was so 'strung, that he, fe'lt the most decided convic-
tion, at ibis Moment, that this Was not a caserbr
the equitable inted.erence of the Court.

COURT OF COMMON PLEAS, DEC. g.

BEDSON V. BENNET.

Mr. Serjeant COCKEI-1, stated, 'that this was an
anion against the owner of the • South' Sea Whale
Ship, the .Favourite,.by the Plaintiff, who had been
Second Mate of that vessel, for the balance of prize-
money due to him. • The Favourite Was a Letter of
Marque as. Well as a Trader and in the passage out
had, after a warm engagement, taken a valuable
prize, -sailing under Dutch colours. —The prize,
called the Juliana- Afaria, was §u leaky that the
Favourite, instead of prosecuting her' voyage to the
South 'Seas, returned home with the eaptured vessel.
The Defendant, according to the statement of the
Counsel; had represented to the men, that the prize,
after the expences of condeMnation, would 'amount
to. little. He afrerwards,-however,, seemed to adinit
tbdt the clear moceeds amounted to 25,0601. and
with the assistance of his Agent; had ..settled with
the Plaintiff; and he believed others, at that
.rate.
The Plaintiff had a .50th share, it being the custom
in this trade to give shares instead of wages, and
accordingly received 5001. in• full of his demands.
The fad, however, was, -that the produce, after the
paymont
.of
.211 expences, amounted to 41,8721.
The both part °ldle additional 16,8721. was now
claimed by the Plaintiff.- '['he Learned Serjeantob-
served, that though our sailors were .the.• noblest
fellows in the world at sea, they were on shore the
greatest lubbers imaginable, and suffered themselves
to be bitten by • the Land •.Sharks, in spite of -all
the. provisions made by the Legislature for their pro-
tection.