v.

BINKES.

TROUGHTON Subsequent to the deed of trust Holder contracted another debt with them to the amount of 1361.; for which he executed a mortgage to them of the same estate in Barbadoes, with the stock for ninety-nine years, and warrants of attorney to confess judgment. By indentures, dated the 23rd of December, 1796, Kennett and Kidd assigned their debts and securities to the plaintiff Troughton. The fourth plaintiff Boxham was a creditor, as indorsee of a bill of exchange drawn by Holder, and dishonoured.

[575]

The bill prayed an account of the profits and produce of the plantation, &c. received by the Daniels, and of the application, and of what is due to them and to Norton on their securities; and that the premises may be sold; and that the money produced may be applied in the first place in payment of what shall be found due to the Daniels and Norton. The bill also prayed an account against the trustees, and an application according to the trusts of the deed for the benefit of the creditors.

The defendants, the Daniels, who claimed under their mortgage a debt of above 7,500l., by their answer refused to consent to a sale; and they stated, that they are ready and willing on being paid the whole of what is due to them on their mortgage and their costs to convey, as the Court shall direct; but submit, the plaintiffs are not entitled to have the accounts prayed taken as against them, unless the plaintiffs will undertake to redeem said premises and to pay to the defendants the whole of what now remains due to them on said mortgage.

Mr. Piggott, Mr. Romilly, and Mr. Jordan, for the defendants, the Daniels, insisted, that the plaintiffs had no right to redeem them, notwithstanding the submission in their answer; that the bill * did not seek a redemption; and the submission to do that, which the plaintiffs do not seek, cannot supply the want of proper allegations in the bill and the prayer of that relief; and that the plaintiffs ought to have amended the bill and to have shewn a right to redeem.

THE MASTER OF THE ROLLS:

Most of the relief sought by this bill is of course. But it prays

an account against the Daniels: and that the estate may be sold and the money applied in the first place in payment of what shall be due to them. It is admitted, there could be no sale; the mortgagees not consenting to a sale. The plaintiffs are creditors under the trust deed. The trustees could come for a redemption but I doubted, whether two or three creditors could come in their own names to redeem for their own benefit. It struck me as extraordinary, that they should file a bill to redeem for themselves, and so gain a preference; for then they must be redeemed. But it is now admitted, that they cannot claim to redeem to that extent; but if any creditors choose to come in and contribute, then all are to have the benefit. I should have thought, the trustees should have come, and have claimed the benefit for them; not, that the creditors themselves should come in the first instance, and as a matter of course. For that a case must be made; that the trustees were called upon to redeem ; and they refused. A case of that kind, Franklyn v. Ferne, was stated, in which the general principle was recognized; but it was decided, that the plaintiff had made a case. Lord Chief Baron PARKER stated the established principle, that he, who has the legal estate, must redeem; unless a special case is made; as, that trustees or executors are colluding; or, if they are unsafe. I am therefore confirmed in my opinion, by the authority of that case as well as by analogy, that the Court cannot in this short way decree redemption. In Utterson v. Mairt it was alleged, that the executor was an insolvent person. The assignees demurred; as the executor was the person to make the demand; and the demurrer was allowed. The LORD CHANCELLOR was of opinion, that a case might be made: but that was not done. In this case I am of opinion, *that, though a ground is made for redemption, this bill is not framed for that relief.

Dismiss the bill against the mortgagees.

TROUGHTON

v.

BINKES.

[ *576 ]

404

K. B. HILARY TERM.

1800. Jan. 23.

[434]

[ *435 ]

POLLARD AND ANOTHER v. BELL.

(8 T. R. 434-444.)

Where a policy of insurance has been made on goods on board a certain ship "warranted a Dane" (Denmark being a neutral country), the warranty is not falsified by a sentence of a foreign court of Admiralty condemning the ship for navigating contrary to the ordinances of the belligerent state, to which the neutral country (Denmark) had not assented.

THIS was an action on a policy of insurance on goods on board the ship Juliana, "warranted a Dane," on a voyage at and from London to Teneriffe, with liberty to touch at Guernsey and Madeira. The defendant subscribed the policy as an underwriter for 2001. at a premium of four guineas per cent. The policy was effected by the plaintiffs, as agents, on account and for the benefit of certain persons resident in the island of Teneriffe, in whom it was averred that the interest was. There were counts in the declaration for a total loss by capture, and *for money paid, and for money had and received. The defendant pleaded the general issue, and paid the premium into Court; and at the trial a verdict was taken for the plaintiff, subject to the opinion of this Court, on the following case :

The persons for whose benefit the policy was effected were, at the time of making it, and still are, resident in Teneriffe. The Juliana was a Danish ship, and the property of Danish subjects; and previous to the voyage insured, had a passport signed by the King of Denmark, for a voyage from Copenhagen to ports in the East Indies. Eggleston, the captain of the ship, sailed from Copenhagen on the 23rd of June, 1796, having on board a partial cargo of tar, pitch, cordage, cables, pump leather, French brandy, sail-cloth, and coals; and, in pursuance of the verbal instructions of the owners of the Juliana, arrived in the Thames on the 23rd of July, 1796. During his stay in the said river, he took on board a quantity of goods on account of the

v.

BELL.

owners of the ship, and the goods on which the policy was POLLARD written; and, having taken out his clearances for Guernsey and Madeira, on the 23rd of August, 1796, he sailed on the voyage insured. At Guernsey he took in additional goods on account of the ship-owners; and, proceeding from thence on the 27th of August, was captured on the 18th of September by a French privateer, La Dorade, and carried into Bordeaux. At the time of the capture, and during the whole voyage insured, the Juliana had on board the passport above mentioned, and every other document usually carried by Danish ships. She had also a roll d'equipage, containing the names and places of nativity of the officers, but not of the crew, only stating the latter generally to be sixty men of colour. Captain Eggleston, who was master of the ship for the voyage insured, was born in Scotland, of British parents, under the allegiance of the King. He was not naturalized in Denmark; but on the 6th of October, 1794, posterior to the war between England and France, he obtained letters of burghership in Denmark; but had no domicile there, never having resided there. Upon the ship's arrival at Bordeaux, proceedings were instituted by the captors before the tribunal of commerce, by which court the ship and cargo, with the exception of one bale of goods, were condemned as prize. From this sentence Captain Eggleston appealed to the civil tribunal of La Gironde, where there was a general sentence of condemnation. [These two sentences were set forth at large in the special case: but being unusually long and complicated, introducing a variety of irrelevant matter and false reasoning, they are here omitted, as they could not fail of disgusting every person on whom the task of reading them should be imposed. It may be sufficient to state, that they recited several French ordinances, particularly one in 1778, by which it is declared, That all ships shall be confiscated "wherever there shall be found on board a supercargo, merchant, commissary, or chief officer, being an enemy; and that this Court were of opinion that it appeared on the sentences themselves, that this ship was ultimately condemned for a violation of that ordinance, the captain being a Scotchman.] From this sentence Captain Eggleston appealed to the supreme tribunal of cassation at Paris,

[ *436 ]

TOLLARD

".

BELL.

[ *437 ]

which decreed as follows: "Having heard the parties, the tribunal, considering that it hath been fully proved by the confession of Captain Eggleston, and ascertained by the judges of La Gironde, that the said Captain Eggleston was born in Scotland, and an enemy; that his denization in a neutral country was not justified according to law; that his quality of enemy sufficed to legitimate the prize; that the fact of Captain Eggleston being a Scot and enemy, existed independently of the papers on board; that in consequence all remedies of nullity drawn either from the withdrawing of some of the papers on board, or from the non-application of the seal to the bag wherein they were inclosed, cannot give any ground to cassation,-rejects the request of Charles Eggleston, and condemns him to the fine of 150 francs."

This case was twice argued; the first time in Michaelmas Term last by Park for the plaintiff, and Carr for the defendant; and now by Gibbs for the former, and Rous for the latter; and judgment was now given for the plaintiff.

LORD KENYON, Ch. J.:

This is an action on a policy of insurance on goods on board a ship, warranted to be a Danish ship; a loss having happened, the defendant resists the plaintiff's claim, because (he says) that the ship in question was not what she was warranted to be, Danish; and I agree with the defendant, that the meaning of the warranty was not merely that the ship was Danish built, but that she should be circumstanced during the voyage as a Danish ship ought to be. This does not appear to me to be a case of difficulty, though it is of great importance to the public. This is one of the numberless questions that have arisen in consequence of the extraordinary sentences of condemnation *passed by the Courts of Admiralty in France during this war. I do not think that they were characterized too strongly at the bar, when it was stated that they all proceeded on a system of plunder; but still, until the legislature interferes on this subject, we, sitting in a court of law, are bound to give credit to the sentences of a court of competent jurisdiction. If, therefore, in this instance, the French courts had condemned this ship on the ground that it was