case eastindia company vers atkins in canc a man may wave a privilege though  he be not oblige to discover what will subject he to a penalty I Str S c this  be a bill for a discovery of a private trade carry on by the defendant who be  supercargo of the stringer galley send by the company on a voyage to canton in  china in the year and from thence to return to England and set forth that it  be agree between they and the defendant that he shall go supercargo for the  company in the say ship call the stringer galley that he shall take several  good from the ship call the Purfton galley and then to proceed to china and  there take in good for the company ft and that the defendant covenant that he  will not use any private trade during the voyage and that if any bill in  chancery shall be bring against he that he will answer thereto and not plead  the act of parliament which create any penalty or forfeiture in bar to such  discovery and then charge that he sail to the comens down and there take in  good for the company from on board the Purfton galley and from thence proceed  to canton in china where he private sell the company be cargo and with the  produce of such cargo buy other good and dispose of they in his return at  Lisbon in Portugal and part be carry by the success and part by the  Lemon Galley to holland c and offer to wave all penalty c the defendant as to  so much of the bill as seek a discovery of good export without licence or sell  before the return of the ship at Lisbon or elsewhere plead the statute W c and  the stat annae c by which if bulk be break before the return of the ship the  ship and good shall be forfeit c and Mr Vernon argue that this plea be  sufficient for by the stat W the penalty be the loss of ship and good comens  and the double value of the same one four part to the prosecutor and the other  three four to the eastindia company and therefore though the waver may be  sufficient as to the part give to they yet as to the other four part of the  ship and double the value the plaintiff be not entitle this they seem  apprehensive of and for that reason allege that they have exhibit information  without say when or for what good which they ought to have show particular and  express set forth the information they comens er p self to show that they be  for the good in the bill inquire after if they will have entitle themselves as  prosecutor to the other four part but if they shall be entitle to the  forfeiture upon the stat W c yet the forfeiture by the stat annae c be give  one moiety to the crown and the other to they who will sue or shall seize c  wherefore to this penalty they appear not to be entitle and then we be in the  common case where a discovery be pray which will subject the defendant to a  penalty in which case the court will not oblige the defendant to answer a  court of equity will not subject person to penalty for it relieve against they  but it be say here that the defendant covenant to answer to any bill in equity  and not to plead or demurrer but such covenant be of dangerous consequence and  here will subject the party to the payment of per cent to the company by way  of damage for so the covenant run which be a mulct as great as the forfeiture  the manner of obtain it be hard when the defendant be ready to set sail he  must then execute this charter party or not go but this be say to be no more  than what the company have always practice yet there be also a covenant that  if the ship miscarry the party shall lose his wage which as often as bring  into question have be set aside for they be entitle t from port to port to  receive wage to such port where the cargo be unladen and such covenant be  unreasonable comens No consideration be pretend for this covenant but the  company be undertake that they shall not be subject to any forfeiture which  the company be not able to make good the person covenant here do not pretend  or pray to have relief against his covenant but the plaintiff will have a  specific performance of it which be not so proper in a court of equity for a  difference have always be take between a circumstance of fraud to be relieve  against a covenant and the pray a specific performance of it if a man make a  mortgage and covenant not to bring a bill to redeem nay if he go so far as in  Stisleds case to take a oath that he will not redeem yet be may redeem it be  lie down in Mr powell useful treatise on mortgage vol p that the right of  redemption be consider in equity as inseparable incident to every contract  find on a mortgage and can no more be restrain than the power of tenant in  feesimple to alien general or of tenant in tail to suffer a recovery it be a  maxim that the same estate or interest can be a mortgage at one time and at  another time cease to be so if a man borrow money and covenant that if the  interest be not pay at the day it shall carry interest yet a court of equity  will relieve though he may be say as much to wave the benefit of a court of  equity in those case as here it be indeed a covenant of a extraordinary nature  that he shall not make part of his defence if he may be abridge of one part of  his defence why not of the whole indeed in a covenant to suffer a common  recovery it be agree what defence shall be make and what the party shall do  and if this be allow the defendant may at another time be oblige to make  default that the bill may be take pro acknowledged admitted fact the covenant  be that the defendant shall not plead nor insist on the penalty to avoid a  discovery but suppose he do be the court bind will they refuse to regard his  plea and pass over the merit which the law allow he to insist on what have a  court of equity to do with a covenant unless it be executory to pray a  specific performance of it but can there be a specific performance here comens  the defendant covenant not to plead this matter but he have plead it the  plaintiff may take what advantage they can at law but a court of equity will  not interpose especial to do what be contrary to the design of a court of  equity videlicet to relieve against forfeiture and penalty the rule that no  person shall be compel to subject himself to penalty and forfeiture be find on  natural right and justice it be a rule which bath be observe inviolable  without exception till this attempt therefore as we can be acquit by the  company from these forfeiture it will be a monstrous thing in a court of  equity to subject we to they and the rather where it be a strain upon the  allegation of the plaintiff who allege that they be apprehensive of a injury  from the defendant though the proceed show that they never make a better  voyage have gain per cent profit their whole complaint be conjectural and  groundless and seem to have no foundation and bath no oath to support it if  they have any ground they have their remedy at law and the defendant ask no  relief in equity against the covenant sir Thomas powis on the other side argue  that the defendant be not within the penalty of the stat W which prohibit all  person except the company and comens er p their servant or agent to trade or  carry good to the Indies the defendant be the servant of those who may trade  and so not subject to the penalty of that Act but if in respect to those good  export they be look upon not as servant but as trader and so within the  penalty of the Act yet three four of the penalty be give by that Act to the  company and the other four to the informer they may allege that they have  exhibit a information whereby they will be entitle to that four and then wave  the benefit of comens the penalty they be entitle to they be in the common  case as where a person wave the forfeiture of the Triple value and pray a  discovery of tithe or where a man wave the penalty of the statute and pray a  discovery of timber fall and if the penalty of this Act can be waive and a  discovery of the outwardbound voyage pray then the plea which cover the  discovery of this be ill as to the discovery pray by the bill in relation to  the homewardbound voyage that stand upon the statute annae c where the moiety  of the penalty be give to the crown which therefore will stand upon the  covenant of the defendant not to insist on this matter by way of plea and may  not a man covenant not to commit a fraud or to discover it when commit it be  find on the consideration of be admit to the benefit of all the profit to  which he may be entitle as supercargo so that it be a lawful covenant and find  on a consideration then it be a covenant which go along with a trust and such  a trust as none will commit to another unless he can come to the knowledge how  it be perform but it can be know without the discovery of the defendant it be  a transaction in a ship at sea a mortgage be in its nature redeemable and  therefore a covenant not to redeem be unlawful so be a covenant to pay  interest upon interest for simple interest be a reasonable compensation but  this covenant hinder no one of his right but only tend to prevent the  defendant from defraud the plaintiff it be say that a man have a right to  plead or demurrer but may he not waive such right may he not covenant to give  judgement by default to release error to suffer recovery by default and will  not a court of equity compel the performance of these comens Lord chancellor  the plaintiff show not when any information be exhibit or for what but the  defendant must take their word for it if a person plead a former suit depend  he must show when and for what that the court may see that it be for the same  cause but as to the covenant it must be consider that it be in a case where it  be moral impossible to get a discovery but from the defendant himself and it  be the more reasonable to get it since it relate to a fraud where the  plaintiff be prejudice by the defendant and ought to have amends and the  defendant have a opportunity of do the wrong by reason of the trust repose in  he by the plaintiff it be not a covenant to restrain a court of justice from  do right but enable it to do right for it cause the whole truth to be lie  before the court and there be a difference between a defence upon a answer and  a plea the plea be not a defence to the justice of the cause but to the  inquiry that the defendant may conceal the truth therefore not like the case  of a covenant not to redeem a mortgage it be a negative privilege which the  law allow that a man be not oblige to discover what may subject he to a  penalty but it be not a natural right for then a discovery if he please to  make it will invade that right but sure a man may waive such a privilege it be  not what the law prohibit but the other party have no right to oblige he to it  but if he will discover he may there be no law or right against it if the  defendant have not act against his duty his answer do he no harm and why shall  the court protect he if he have play the knave though the law do not oblige  any one to subject himself to penalty yet be may if he will if he think it for  his advantage remedy at law comens be vain where there can be no proof and the  bill be to discover what good be carry for that be the measure of their damage  comens er p the plea be overrule N B there be afterward a appeal to the house  of lord but the matter be compound