The Sun.
London, England, 1804-02-06 00:00:00

FOXHALL 'V. LORD ARUNDEL.

This was a Rule obtained by Mr. BURROUGHS,
calling on the Plaintiff to skw cause why a rule
calling upon the Sheriff to . return a Writ of. Fieri
Facia' should not be enlarged, on the.ground that
An injunction had been granted in the Court of
Chancery to stay proceedings in this came until an
answer shall be brought in and further order made
in that Court. •
There being no doubt the injunaion was .bin ling
on all parties Whom it applied to, and that the
Sheriff would be guilty of a contempt of the Court
Of Chancery if he proceeded, the rule was of course
made absolute.

Mr. BURROUGHS moved 1,-,r a Certiorari to re_
.move an indictment preferred against Lord Bolton
and others, charging them with a Libel, in publish-
ing certain proceedings of Magistrates in the
country, &c.—Rule granted.

COURT, OF CHANCERY, r JAN. 3t.
EAST-INDIA COMPANY'V. DONALD.

This was a Bill, filed by the East India Com-
pany, praying that the Defendant might be ,de-
creed to pay to them the sum of toool. with in-
terest, as money- had and received to their Use.
The circumstances of the case, which are extremely
important to all persons conneded with East India
Shipping, were shortly these-:
Messrs. Mitchell and Crawford, being owners of
the Ship Fort William, had 'chartered the sime to
the East India. Company for a voyage; to Madras,
on which occasion Captain George Simpson ap-
plied for the Command. /-‘,C;er ,some negotiation,
this application was acceded to,: on Simpson's exe-
cuting a bond to Mitchell and Crawford,. binding.
himself to pay to them, previous to the commence-
ment of each voyage, the sum. of roool. as a consi-
deration for his being appointed Captain. The
ship performed her first voyage in /79/, and, in
1792, Mitchell sold his interest in her to the De-
fendant, Donald, who soon after called tipon Simp-
son to resign the Command ; but, after some nego-
tiation, it was settled that Simpson should retain
his situation, on executing a bond to the Defendant,
in the same terms as the former, which was given
. up and cancelled.
In the Charter Party, which was executed pre-
vious to the ship's sailing on this voyage, and dated
on the /7th Sept. 1794 a covenant was inserted,
that neither the owner, master, or any part owner,
should, on any account, sell, or permit any other
person to.sell, any situation, office, or command, in
the said ship, or should receive, in any manner
whatever, any sum of money or gratuity, in respect
of any place or office in the said ship, or in consi-
deration of any person in such place or office re-
signing the same ; and that, in case any such
owner, part owner, or master, shall so offend, then
that the money or gratuity thus received, shall be
Considered as received for the use, and on the ac_
count of the said United Company ; and such of-
fending party shall pay and account to them for the
same, or the full value thereof, wish interest; and
the party shall be bound to make a lull discovery in
equity thereto, and shall not plead in bar of such
deariaud.

PreVious to the ship's sailing from the River,
Simpson paid to the Defendant the sum of wool.
as the consideration for his appointment, and ae.-
cordingly performed the voyage.- After the return
of the ship, she was chartered for a second voyage
by the Company, Simpson still retaining the com-
mand ; but the first voyage not being successful,
he did not, previously to sailing on the second, pay
to the Defendant any sum of money whatever.
Some short time after the completion of this second
voyage, the Defendant desired Simpson to accom.
Filly him to the house of hiS agent, when lie asked
for a paper parcel he had left there, saying at the
same time to Simpson, " In case I had died before
your return, this would have been delivered to
you;" and the Defendant, at the same time, put
the parcel in his pocket, and 'shortly afterwards
repaid to Simpson the sum of Aoool. which the
latter had given him previous to the first voyage,
saying, '' There is your money again, and I hope
you will resign the command of the ship,"

This Bill was accordingly filed by the East India
Company, praying that the Defendant might be
declared to have received this money for their use
and on their account, according to the covenant in
the Charter Party, and, praying that he might be
direded to pay the sane to them with interest from
the time that he had received the same. The Defend-

otherwise, but as a consideration for his appoint_
merit to the command of the ship; and he admitted
the faas stated in the. Bill.

The LORD CHANCELLOR, after hearing Counsel
on bo:b. sides, prqnounced his judgment. After
stating the fads of the_case, his Lordship said, " It
is clear that as to the, money paid upon such„trans-
atlion as this, it might be recoverable in an anion
at law ; but where a specific delivery up is neces-
sary, the remedy must' be in a Court of Equity.—
The language of the Covenant in the Charter Party
is rather obscure, but the true meaning of -it must
be, that where a party receives a sum of money in
violation of his contrail, that it is'not to be con-
sidered as enforcing a penalty against him, but as
money had anti received to the use of the Plaintiffs
and if the remedy is not taken away by the delivery
up of the' Charter'Party, Donald must be a debtor
for so Much -had and received for their use nor
will the Circurnitance of his paying it back again
destroy their right to enforce their demand. In the
pre:;ent case,' both 'an aCtion at law and a suit in
equity may 'be maintained, even taking as granted
all-that the Defendant had stated, for the East India
CoMpany are not privy to:the trinsadions between
those parties.

" The payMent of 'cool. by Simpson to the Pe-
fendant is clearly proved, while the Charter Parry
still continued in force ; and the Defendant must
clearly be liable to this dernand,:unleSs the money
was advanced, not by way„of gratuity, but df,loan.
" It is necessary here,. according to the rules of
the Court„ to consider the faas.as stated by. Silnp--
son; he was examined .for the Defendant ; but his
deposition is wholly i,n support of the Bill, and, he
positively denies having ever paid this
.10001. or
any other sum, as a loan. There is, certainly, no
proof of the allegation• in the Bill, that amald told
Simpson he might continue in. the command upon
the.same.terms as before ; but, upon his cross.exa-
Initiation, he says, that it was agreed he should con.
tinue in tkiti? command, and that, previously: to the
,commencement of each voyage, he should pay 10001,,
which, he says, on, the first voyage, he regularly
paid. •The Defendant does not in ,his ,answer deny
the allegation introduced into the Bill, that it was.
so agreed, and iliac Simpson executed a bond for•the•
payment of!such sum accordingly. With respeft
to the paper parcel, there is no' proof of what it
contained, for Simpson says,• that he never saw it
after the Defendant took .it.; and said, you see
what I intended to da for you in case of alyAleath.'
" The circumstances nntler•which this money was
paid back are certainly very extracrdioary. It is
clear that Simpson; could . hale no. right to demand
it. The bond is not pranced, nor :was there any
conversation between toe two voyages.which
cated any demand an tile- pact :of,'Simpson, nor-.•any
~intimation from the Defendant to him, that he con-
sidered this sun) as it loan wchich,he.was- to repay,
and. it is . not until five years. had elapsed, viz, on
the, 6th of „Septanber,, 1798, that!the, -money is
returned and- it• must• be: ob.sei-medtb that it 'is
then conne&ed with. a hope, that, Simpson should
resign, the command. If Simpson lent the, money,
he did .it without. army docurnent-.or security, and
it is not- a little singular that theDefertdant should
permit' the matter to-rest until after: the second
voyage, without any communication or, explana-
tion on the subl.6l. The DefeJadant pOsitively de-
nies that the .transadion was. as stared: Simpson as
positively denies.that the sum paid by him was as a
loan. hut as a ,gratuity- alone

" If the Chatqer Party :had not been destroy-
ed, an aftion a 2 law might have--been 'brought,
and Simpson called as- a Witness The neCessary,
consequence must hiiie been a - verdift for- the
Plaintiffs,

if It is a painful necessity' imposed upon a' Judge
sitting in a
,Court of Equity, to decide: on Which
side the truth lies. In this court, the rule oftvi-
dence gives the Defendant the prote(fion 'of his
own conseience,•and you most contrast the evidence
of an interested -party with that of one who
interest 'at all. It is true; that if a Bill is filed in'ihis
Court, that' you' may read
the
on discovery sctollielrya•
t only,la„
'and the Defendant,
consequently, haS the advantages of laying hiS
ii t.t
sn-v foraer
own evidence before the Jury, though' he could
not be examined Biwa voce. thiS-Court, the
general rule is, that if the answer'coritAns a po,i-
live denial to the case stated in the Bill, and it is
contradined by one witness only, there cannot he
a decree against the Defendant, unless the circum_
stances so 'preponderate against the oath of the
Defendant, that greater credit must be. given to.
the witness 'than to the answer, laying aside all re-
colleffion the oath of one of the partieS is that of
an interested person. Lord Thurlow, I think,
rightly-said, that if the 'rule of this Court was to
give equal credit, unless where circumstances pre.
ponderate.over denial, 'and the Jury is called upon
in such a case to decide, there must be an evident
inconsistency,' because the Defendant cannot he
heard unless you order his answer to be read, and
thin he must be heard with the prejudice of in-
t,:rest, • whiCh in this Court you diSmis's from.your
mind. 'ln thiS ease, do circumstances so outweigh,
as to call upon me to decide against the Defendant ?
An inquiry at law is certainly less favourable in its
-principles for a-Defendant; but if -he desires it, he
must have an issue to try the question. Upon the
second "point, whether these Plaintiffs are entitled
to any relief, the Charter Party being, delivered
up, I an of opinion, that there are many cases in
which this Court must reiuse to ael, yet where -it
does an, if that made any difference in the case ;
indeed I think that the delivery up of - the Charter
Party rather assists the claim for equitable relief.
But it is necessary for me, b-dfore I can decide 'final.:
ly, to knoirWhethet the Defendant' desires to
have an

Mr. RomILLY said, he had advised his Client
not to desire an issue.