case in chancery newland contra horseman novemb S c vern charterparty master  merchant foreign servant examine horseman be owner of the ship call c whereof  ford be master b the plaintiff treat with a friend of horseman for hire of the  ship and a charterparty be seal by b and horseman by which horseman agree that  the ship shall sail to new England to take in fish on the account of Newland  and thence to Barcelona and there to deliver the fish Newland covenant with  horseman to pay the fraught on delivery of the fish the ship arrive at  Barcelona and the fish be deliver to one Dalmasie ford the master demand of  Dalmasie the fraught and Dalmasie demand a deduction out of the fraught  pretend that there want Kintals of fish of what be to be deliver and that the  part of that which be deliver be damage thereupon the master sue Dalmasie in  the court at Barcelona for fraught Dalmasie sue likewise for deduction of  damage the court there order the whole fraught to be bring into court and  consideration to he have for damage for Dalmasie thereupon Dalmasie appeal to  a superior court then Dalmasie remove the appeal on pretence of prevent  several appeal the master find his fraught lodge so that he can not have it  till the Cause be hear in the high court which be not like to be in some year  time come away without any other fraught or Relading there for his principal  account which he can not help for want of the money for his fraught then horse  man sue Newland on the charterparty for his fraught here Newland exhibit his  bill in chancery to stop the proceed here though the suit be only to recover  damage and not for the penalty the great debate be whether the proceed at  Barcelona be judicial and begin there by ford master of the ship and sentence  there obtain by he shall conclude and bar the defendant he have cause money to  be bring into court there not as exclude the jurisdiction of this court by the  sentence there but that the court shall have regard to the sentence and insist  that Newland act here for Dalmasie and that Dalmasie be the principal factor  and not himself and in case there shall be a recovery against Newland he be  without any remedy against Dalmasie which last matter case in chancery seem to  stick with the chancellor whereto the counsel for horseman offer that horseman  do consent that Dalmasie may take out his money again at Barcelona and to make  any instrument for that purpose and they deny that Dalmasie be the principal  merchant for have it be declare to horseman that Dalmasie be the principal  merchant and must have seek remedy against he horseman will never have let his  ship to Dalmasie be a stranger to he and there be no probability that he will  let his ship to fraught to one that he have never hear of nor have any thing  to do with and insist further that though Dalmasie be the principal master and  Newland his agent yet that will not concern horseman unless horseman or his  agent have notice of it which they never have and though ford sue Dalmasie in  Barcelona that may not prejudice horseman nor ford because he can not  otherwise do for by the course of merchant the receiver of the merchant be to  pay fraught upon the receipt of the good it be not possible for he to recover  the money any other way or against any other person Newland be in England and  horseman have instant necessity for the money to relade the ship back again so  the suit be not a matter of election but necessity the Lord chancellor if the  Cause have be full determine at Barcelona then but the Cause be not full  determine at Barcelona for the damage be not full ascertain in conclusion he  order that horseman shall proceed to a trial against Newland upon his covenant  and therein give in evidence the nonpayment case in chancery er p of his  fraught and what damage he have thereby and that Newland may give in evidence  of the mitigation of the damage and deliver ho opinion how far or whether  Dalmasie be the principal merchant or not but will consider that when satisfy  in that other point thereupon the plaintiff counsel pray a Commission to  Barcelona to examine to that point which be oppose by the defendant counsel be  publication be pass and nothing prove in the Cause of it Churchill this  objection be raise by the court and arise upon the debate and be not in issue  before and be to be try by letter resident in that place as well as here case  in chancery chancellor take a Commission and examine to it if you will consent  to go to trial next term and return the Commission before the term and go to  trial whether the Commission be return or no to which the plaintiff and his  counsel assent but move first that the defendant may name commissioner that  the plaintiff may not be delay for want thereof second that the return of the  Commission may be by the post and not in the usual way may be allow and  therefore the Lord chancellor direct that the Commission shall be deliver to  Mr Herne to send the same by the post to Barcelona and when execute to receive  the same back