case the south sea company versus Bumpstead at the chancellor house Lord  chancellor eoden die Mr solicitor general for the defendant the bill be bring  by the south sea company for a discovery account and relief to which purpose  it set forth that the south sea company in send the royal George to the  Spanish west Indies and make the defendant Mr Bumpstead and three other  supercargos who enter into article with the say company that they will sail  direct for Carthagena or porto Bello and not call in at any other place and  covenant that if within six month after the return of the ship any complaint  shall be make of they to the company that they have carry on my unlicensed  trade contrary to the article and the company shall file a bill against they  they will appear and put in a full answer and not pCd or demurrer and that  they will not suffer any unlicensed good to be put on board during their  voyage to the Spanish west Indies nor in their return and as the south sea  company be by the assiento contract to forfeit their trade if they exceed  their tonnage or bring home any specie not the produce of the negro or any of  the king of Spain subject without his licence they likewise covenant to  indemnify the company from any loss they may suffer by their violation of this  contract and the bill charge that in breach of these article they in their  voyage touch at saint Christopher and stay there twelve day and take in one  hundred tun of good not licence by the company by which delay the galleon  arrive at porto Bello before they whereby they miss the opportunity of their  market and that by their sell their own cargo first at a great advance they  low the price of the cargo of the company and that they in their return stay  seven week at the bastimento and after at Jamaica and then put in at antegoa  and land their own effect and get the ship condemned there as unable to  proceed and put the effect of the company on board the kingsale man of war and  send they home the bill therefore pray a discovery of all these transaction  and a account and satisfaction for the unlicensed good so put on board and for  pound piece of eight the produce of they to this bill the defendant Bumpstead  have plead and answer and have set forth mosely report his conduct during the  whole voyage by which it appear that the plaintiff mosely report er p have no  room to complain and his plea consist of three part the first be to the  discovery of any unlicensed good belong to he put on board the say slip or the  produce thereof to which he plead the statute annae which enact that it shall  not be lawful for the south sea company their agent or factor to export from  any place but England any eastindia good to the south sea or Spanish west  Indies under the penalty of forfeit the say good twothirds to the eastindia  company and the other three to the crown and that if he shall be oblige to  discover what good he put on board at saint Christopher it may subject he to  the forfeiture of that act which as they do not belong to the south sea  company they can not dispense with or exempt he from he ago plead the assiento  contract by which the annual ship be to carry but tun and that the penalty of  carry more be confiscation of the good and loss of their trade and that by the  same contract they be not to bring home any specie not the produce of the  negro or any of the king of Spain subject without his licence under severe  penalty and that this discovery may subject they to those penalty and likewise  to the penalty of the bind they have enter into to indemnify the company the  other two plead be not to the discovery but to the account and relief pray the  first be that the representative of the other supercargos be not make party  though they all enter into the same covenant and that it may appear if they  have be make defendant that they have make satisfaction to the company or that  the company have give they release or if the plaintiff shall be decree a  satisfaction from the defendant he may have it over against they pro rata the  other plea be that the king of great Britain or his attorneygeneral and the  king of Spain ought to have be coplaintiffs because by the assiento contract  the king of Spain be entitle to a four part of the cargo of the annual ship  and to five per cent on the other three four and the king of England to  another four part as to the first plea no one be certain bind to discover what  shall subject he to a penalty this court indeed frequent relieve against  forfeiture but never force a person to discover what shall subject he to they  and if on our discovery of what good we put on board at saint Christopher it  shall appear that they be eastindia good they will be forfeit and as these  forfeiture do not belong to the south sea company they can waive they which be  always do when the plaintiff will have a discovery of what will subject the  defendant to a forfeiture and the plaintiff be so sensible of this that they  have waive the penalty of the bind enter into by the supercargos for the  performance of covenant and the discovery may also subject the defendant to  the penalty of the mosely report assiento contract if it shall appear that he  have carry any thing but negro or bring back any specie not the produce of  they or any of the king of Spain subject so that by the common rule of the  court we be not oblige to make any discovery of these matter that will subject  we to such penalty and forfeiture unless the covenant in the article oblige we  to discover which I think it do not a court of equity have nothing to do with  covenant but to see they execute in which it use a discretionary power because  the party may sue upon they at law now the defendant swear in his answer that  these article be bring to he ready engross by the secretary of the south sea  company a few day before he set sail and after all his effect be on board and  that he object to this covenant but be oblige to sign it or quit his  employment and though this be not such a duress as by law will defeat the  covenant yet this court will so far consider it that if either side take the  other at a advantage they will not carry the covenant into execution since the  party may have his remedy at law beside the effect of this covenant be that  they shall not make use of that defence which the law allow to every subject  suppose they have covenant to refer all dispute to arbitration yet sure they  may have sue in westminsterhall in Stysteads case the mortgagor not only  covenant but make a affidavit that he will not redeem yet he exhibit a bill  and be decree to redeem and if party be relieve against covenant that rob they  of the liberty of sue in common with other subject much more shall they be  relieve against those that deprive they of their legal defence in case they be  sue by other as to the second plea in bar of the account it be a general rule  that where a account be to be take all concern in that account be to be make  party to it now this bill be to have a account of a unlicensed trade carry on  by several supercargos whereas if any one of they have satisfy the plaintiff  it be sufficient and there be a end of the company be demand against the rest  or if mosely report er p the company shall prevail against the defendant  Bumpstead he may be decree a satisfaction over against the other to prevent a  circuity of action and that the load may be lie equal on all whereas if the  defendant Bumpstead shall bring his bill against the representative of the  other supercargos they may show they have make the company a satisfaction and  this decree will not bind they as to the three plea the plaintiff by their  bill demand the whole though they have a right only to part and though they  can not compel the attorney general to join with they they ought at least to  have make he a defendant mosely report Mr will our plea to the discovery be  undoubted good if the covenant do not stand in our way and that certain shall  not bind the defendant if one direct by his will that if any of the legatee  contest the will he shall lose his legacy he may do it notwithstanding or if a  tenant covenant that if his landlord distrain he will not bring a replevin yet  he may repleuie and consider the nature of this covenant your lordship will  not carry it further than the letter which be that if within six month after  the return of the ship a bill shall be bring they will not plead or demurrer  to it but this bill be bring long before the ship come home and therefore be  not the bill they covenant not to plead or demurrer to so that this covenant  it out of the case as to the other plead the charge be against all the  supercargos for carry on a unlicensed trade in confederacy and therefore no  account or relief can be pray against any one of the confederate without bring  all before the court and the company only bring the bill whereas we be  Accountable also to the king of great Britain and to the king of Spain the  Lord chancellor be of opinion for the plaintiff and oblige to go to council  will not hear their counsel but overrule the first plea because it be contrary  to what the company have provide against by a express covenant and which it be  lawful for they to do and the like plea be overrule by Lord Macclesfield after  great deliberation and hear of counsel in the case of the eastindia company  against Nash and Atkins but his lordship save the benefit of the second plea  to the c hear though it appear that the covenant be joint and several and  overrule the three plea because the king of great Britain and Spain be only  entitle to share of the licence good of the say ship but the bill be for a  account of good not licence vern vern Hardr Chan Cas Nels Fol Rep in canc you  may prefer the same petition to the Lord chancellor that have be dismiss by  the master of the roll for it be in nature of a appeal and the party have no  other remedy mosely report Friday December petition in commission OF lunacy