Vice-Chancellor's Court, ...
it]r. J ACon argued thie plea in this cause. It appeared that the bill was filed by some of the officers of the Elizabeth, a Sotithl Sea whaler, against the owners of the ship, to compel payment of the wages due to the plaintiffs under a certain agreement stated in the pleadings. This agreement was marlebetween the captain on the one part, and the crew on the other: the latter covenanted that they s?,ould perforra their duties on board the Blizabeshl during the voy- age she was then about !o mnake; and in consideration of this, the captain agreed that they should receive, by way of compensation, cerain shares of the prodluce of all oil, whalebone, head-niatter, seals, and other animals, which should be taken dluring the voyage. The agreement contained also a stipulation, that the captain should alonete responsible to the crew For the shares thus agreed to be paid to them,and that neithier the owners nor the cargo should be lIIsb e to any clairps in rcspect of sucb shares. The ship ma(le her voyage, and returned to the pert of London,whereher cargo was dispsosedoffbv the owners, who afterwvrds produced accounts of the profits arising trom the voyage, and of the proportions which were die to the crew. These prOportions fell short of the expectations of the scameni, and a biUllwas fi ed, charging that the accounts were untrue,tbattheproduce of the voyage wasmore profitable than it was represente4 to be by the owners,and that consequently their own shares were larger.To this bill the owners, the defentants, had pleaded that the agreement preclhd. ed the gailors from all right to srue them, and that if they had any reason to complain, their only remedy should be against the captain. The learned counsel argued at some leigthi in favour of this piea. He contended that the covenant was binding upon the parties Iwo made it, and that as they had chosen before they began their voyage to content themselves with the liability of the captain, they could not now resort to any other remedy. lHe drew a distinedon between this covenant and a general covenant not to sue (which courts of equitv will always rClieve against), by urging that the cove. -nant here was linited to one particular description of personsonly,viz. the owners, and that it was therefore like that stipulation which w,. commonly made when ships were manned by foreign sailors- . at they should not sue for wages in an foreign port, and whicil e courts in England had held to be valid. He contended also, that the plea was good for want of parties, the captain not being included. The VXCa.-CHANCcELOR overruled- the plea. He doubted very ,nuch, whether the covenant In the agreement was one which could be maintained under any circumstances, but in the case before the tourti,t bad been rescitided by the act of the owners themselves. NIt athe ship came horne they took possession of the cargo and 1spfffesale of it: after which thay drew out accounts, which, ns the biXhairged, were fraudulent, and as the defendants, by resorting to theplca now argued, did not deny. The plea was as invalid in pornt of law as of justice, and although every thing hal been said upon it by the learned cotunsel of which it was capable, it could not be allowed to prevail against the claims of the plaintiff. The owners pretended that because thesailors made an agreement with the cap. tainthiat tIey-would oilysBuehbim for their shares of the voyage's produce, they were therefore not entitled to relief against a subse. ,quent fraud - which badl been practised upon them by persons not parties to that agreement, but who had obtained possession of the hiunds o-nt of which it was to be satisfied. Hlis Honour could not listen to soy such arguments; but woaldcoplteefdat,oan .swNer the allegations of the bill. cme h eednst n VICE-CHAINCELLOR'S COURT, WrDEDNEADAY. NoV 17 COCKLE V. WUITING.