case naish against the eastindia company it be not reasonable to decree a  deposit back which be make by way of security to any one where the person make  it have a proper power and authority to make it this be a bill in equity  against the eastindia company to account for and interest deposit in their  hand by the plaintiff wife the case appear to be this the plaintiff be  appointedsupercargo to four ship of the company bind for china and by article  between he and the company date the that of November the company be to allow  he per cent per month of the fraught c to allow he a adventure of and to carry  out any sum not exceed for his own use by the same article naish covenant to  be faithful to the company and to perform the trust repose in he to invest  their treasure in good c to keep true book of account and true journal not to  charge for good that he buy more than he pay nor to set down for good that he  sell less prince than he sell they at not to load or bring home any gold in  his own name or in the name of any other at any time during the voyage c that  in by order of the company which send out other ship naish then in china be  continue in their service as supercargo naish before his voyage make a general  letter of attorney to his wife date the that of November give her authority to  receive sue for and discharge debt to settle account pay and disburse whatever  sum she shall think proper and do every thing for he that he himself if  present can do c comens naish when in china send home piece of gold as appear  by his own letter date at canton the that of December direct to captain Digby  dent to take they on board and deliver they at Erith and on the next day as  appear by letter date the that of December send sixtyfour piece of gold more  on the that of July mrs naish receive this gold of captain dent as appear by  her receipt on the that of July Mr Arbuthnot who be another supercargo and be  with Mr naish at canton in china give information to a committee of the  director of the eastindia company in write that Mr naish have act contrary to  his trust and duty and have set down great prince for the tea and coffee which  he buy than what he give c he exhibit a diary of his proceed under his hand  say he can swear that all he inform they be true but can make no proof of they  upon this the court of director take time to consider and have likewise be  inform of the gold bring over on the that of August they come to several  resolution comens er p that it appear that Mr naish have carry out great  quantity of silver and have send home great quantity of gold that he have  break his trust violate his covenant with the company c that a information  shall be file against he and a bill in chancery c that the chairman sir  Matthew Decker shall be request to take such measure as he shall think fit  comens to secure his unlicensed good and bring his person to justice after  these resolution take it be discourse about the eastindia house that a ship be  to be send to the cape or saint Helena to seize the effect of naish on board  the company be ship and to bring he prisoner to England to answer for his  mismanagement in the company be service Ingram Lloyd say to in it that it be  agree in the court of director to do so hall to in it that the court threaten  and be come to a resolution to send a ship to seize his unlicensed good and  arrest he and bring he by force to England c Woodford who be solicitor to the  company speak to hall as a friend of naish ask what his wife intend to do to  prevent a ship be send to seize her husband if she take no care in the affair  it will be send hall say that if he will have he he will speak to her Woodford  reply not from I but as a friend of her husband you may tell her hall tell  governor Harrison who be a friend of naish this discourse be bid he tell the  wife she in concern and terror on this news for her husband life who be a man  of spirit say that she will do any thing to prevent it and talk with sir  Matthew Decker the chairman who say that the only way to prevent it be to  deposit a sum of money and on several meeting and proposal of say that nothing  less than will do Woodford consult bow it must be do and say that she must  write a letter to the company and offer the deposit a letter be draw by  governor Harrison alter by Mr Barnard her solicitor approve by sir Matthew  Decker and by his advice show to Woodford who make several alteration but as  sir Matthew say it be as well before but Woodford must be please the letter  thus settle and offer a deposit of be send on the that of September the  proposal be accept by the company and the be afterward pay in to they at three  payment namely on the that of October on the that of October and on the comens  that of November but as hall believe with reluctance and from her apprehension  of the threat and resolution of the company to send such ship c and then the  court of director resolve that Mr naish shall have free liberty to come to  England as propose on the that of may a information be file against naish for  the gold by he send over in Arbuthnot die in July Mr naish return to England  declare that he be well please with what his wife have do on the that of  September Mr naish by letter to the eastindia company demand the by his wife  deposit as make by her without authority on the trial of the information for  the gold a verdict be against naish for but the case be find special which be  not yet determine nor bring on to be argue on this case the chief baron be of  opinion that the defendant the eastindia company ought to account for the and  interest he think that many thing insist on ought to be lie aside in the  consideration of the case as the misbehaviour of Mr naish in china his breach  of his covenant c his approbation of what his wife have do in deposit the  money nor need it be inquire whether sir Matthew Decker have any authority  from the company to act in what he do he say it be to be admit that the  deposit be make on the term propose by the letter of mrs naish comens as also  that she have authority sufficient to do what she do but the chief baron  insist on it that this deposit be draw from her art comens er p full and  insidious and by false representation and that the only consideration to be  make in this case be whether she be fair induce to make it or not that where a  person threaten such usage to another as he can legal carry into execution but  by violence may act against he and thereby prevail on he to do what otherwise  he be not bind to do the act so do ought to be set aside in a court of equity  that in this case it appear what mrs naish do be through the terror and threat  use to send a ship to the cape or saint Helena to seize her husband effect and  to seize his person and to bring he a prisoner to England by force this be  what they can not do by law but this be what they threaten to do and the  terror of it be artful insinuate to her that it will be do it be agree as  Ingram Lloyd say to be do in the court of director it be general whisper and  discourse that it will be so about the eastindia house Mr Woodford who be  solicitor to the company desire hall to tell her it will be so if she do not  take care to prevent it and when he bid he tell her but not from he it look  like a artful contrivance to make the deep impression upon her to draw her to  a compliance then governor Harrison who be a director sir Matthew Decker who  be chairman of the committee all contribute their endeavour to the same end  and persuade her to do so sir Matthew Decker say that resolution be take to do  it nothing can prevent it but a deposit of a sum of money governor Harrison  sir Matthew Decker and Woodford join to persuade her to make a offer of such  deposit by letter frame a letter for that purpose it must be Woodford comens  vary the letter that it may be express and positive and not appear as if she  be frighten into it and by these mean she be induce to do what otherwise she  be no way oblige to do she be prevail on to do it by the art and contrivance  of agent of the company and they have the benefit of what their agent do the  money be by these mean draw into the company be stock who ought consequent to  repay the money with interest baron carter concur in opinion I differ in  opinion apprehend that it be not fit in conscience consider the circumstance  of the case to decree the company to repay the deposit by mrs naish unless Mr  naish have make the company safe against his imbezilments in their service or  have show that there be no probable ground to apprehend that he have commit  any it appear that information be give by Mr Arbuthnot to the company that Mr  naish have misbehave in their service that he have set down high prince for  tea coffee c buy for they than what he real give which be a direct breach of  his covenant that Mr Arbuthnot give in the diary and journal which he have  keep of his proceed and can swear that all he inform they of be true although  he can produce no other proof of the matter upon this information which be on  the that of July the company take time to consider what be fit for they to do  and in the mean time discover that naish have put on board captain dent and  send home three hundred and sixtyfour flat piece of gold or shoe as they call  they worth near though by the absence of the witness who have take the exact  weight the jury on the trial find but and odd pound this appear evident true  by Mr Naishs own letter to captain dent date the that and the that of December  and by mrs Naishs receipt for they date the that of July all now in proof  before the court comens upon this discovery what have the company do on the  that of au gust in a court of director it be resolve that Mr naish have be  guilty of a breach of trust and breach of covenant that a information shall be  file against he for the gold and a bill of equity to bring he to a account for  his other imbezilments and sir Matthew Decker their chairman be desire to take  such measure as he shall think fit to secure his unlicensed good and bring his  person to justice what be there in these resolution that be improper or  unreasonable for the company to do or what be there in any degree illegal here  be strong proof or presump comens er p cion at least that the plaintiff be  guilty of gross abuse in the company be service if true what more fit than to  secure his unlicensed effect and to bring he to answer for his fault in a  court of justice if they can no body can say it be improper or that it be  unlawful for they to do it it may be proper to consider what power or  authority the company have in such a case by their charter read in evidence W  the company have power to seize in England in the eastindies or elsewhere all  ship good bullion c forfeit by the statute stat will c sec a W or seisable for  want of a entry or a false entry in the book of the company or for nonpayment  of the duty of per cent or for unlawful trade or any other offence against the  say Act whereupon that may be forfeit or seize by virtue of the say Act by the  statute Geo c all power grant by any of their charter be confirm so that the  company have undoubted a power to seize or secure any unlicensed good carry to  or bring from the eastindies and every subject or body politic of the realm  bath power to bring the person that injure he to justice and when the company  authorize sir Matthew Decker the chairman to do so by such measure as he shall  think fit that mean and be always understand by all lawful comens mean  wherever any thing be refer to the wisdom judgement or discretion of another  it be always to be intend and interpret accord to law and justice   a so that  nothing appear in this case to have be do by the defendant but what be lawful  reasonable and proper for they to do but it have be insist that upon the  foundation of these resolution the agent of the company Mr Woodford their  solicitor sir Matthew Decker their chairman and governor Harrison have artful  spread abroad terrify report of send a ship to seize the good and person of Mr  naish and bring he by force to England andby insinuate cunning these menace  and design to mrs naish induce her to make a deposit which she be not oblige  to do and unless she have be artful wrought upon by such contrivance will not  have do but first if the agent of the company have do any thing unlawful which  the company do not authorize they to do they ought to be answerable for it and  not the company nothing be a more certain and know rule in law than that if I  command a lawful thing and my servant do it in a unlawful manner he must be  answerable for the trespass or misdemeanour and not the master quaere will not  the master be liable to a action for damage at the same time that the servant  be punishable by a criminal prosecution above p this Mr naish be sensible of  for he at first bring his bill against sir Matthew Decker as well as the  company though before a hear he think fit to dismiss it as to he and although  sir Matthew Decker and the other be member of the company yet it be well know  that the law do not charge any corporate body with any act do by they who be  member of it but they be answerable for all such act personal and in their  natural capacity unless they act by express authority from the corporation  which can be give but by some authentic deed or write of they now there be no  pretence that there be any other resolution or act of the company but what  have be read Ingram Lloyd indeed in his deposition express himself that comens  it be agree in a court of director that a ship shall be send c but what he  mean by its be agree non constat it may possible be the sentiment of some of  the director that this may be do and they may talk or agree to do it but there  be not the least proof or colour that this come to be the sentiment much less  the resolution of the court of director or that any such determination be ever  make by they without which it can never be esteem or impute as the act of the  company whatever some of the director may think as to their power in that  respect it be manifest that the determination be to refer it to such measure  as sir Matthew Decker shall think fit to take that be as he shall be advice  will be proper for he to proceed in upon this occasion these who be call agent  to the company act real as friend to mrs naish and be consult with and advice  with by her as such what Mr Woodford mention to hall be mention by he as to a  friend of Mr naish and although he desire Mr hall to speak to mrs naish as of  himself and not from he which be urge as a piece of art and cunning in Mr  Woodford to communicate what he say comens er p will be do in a underhand way  in order to make the great impression upon her yet there be no proof that he  have any order from the company or any of its member to do so and in reality  he not only appear to be a friend in it to mrs naish but do as far as I can  see a real piece of friendship to the plaintiff it be what the chief friend of  mrs naish think well of and advice her to for Mr hall do not immediate tell  her what woo ford say till he have first advice with governor Harrison who  though he be a director yet be consult as a particular friend of the plaintiff  and real act with friendship for he as do likewise sir Matthew Decker who be  consult as a friend and although they several persuade her to deposit as a  security for her husband come to England and abide what the company shall  charge he with yet this be what seem to I very kind and friendly advice for  what be it they advice her to do Mr naish be evident guilty of several breach  of big article with comens the company they have resolve to prosecute he for  those breach to take the best method their chairman sir Matthew Decker upon  consultation shall think fit to pursue to secure big unlicensed effect and  bring he to justice it can be deny but that they may have send a ship to the  cape or saint Helena to seize his unlicensed good on board the company be ship  this be warrant by the power of their charter confirm by the statute Geo c by  the statute W c sec no member of the eastindia company shall trade but in the  joint stock of the corporation of which he be member and no person who shall  have the management c of the voyage or affair of the company shall be allow to  ship or send from the eastindies any good c till swear to be faithful to the  company c and by the stat Geo c see all good ship for the eastindies not  licence or take out of any ship in her voyage homeward from the eastindies to  England shall be forfeit with double the value c by the statute Geo c sec a  capias may issue as the first process upon any information file for any  offence mention in any Act for secure trade to and from the eastindies c upon  which the offender shall be oblige to give bail to answer such prosecution and  pay all the penalty and forfeiture incur by such offence if convict or yield  big body to prison so that not only Mr Naishs unlicensed good may have be  seize but on fill such a information as be order by the court of director a  capias may have be take out against big person upon which he may have be seize  or arrest as soon as he come infra corpus comitatus and detain in custody till  be find bail to answer the forfeiture or penalty incur comens what then do her  friend advice her to do to prevent this proceed why to make a deposit of to  abide what the company shall by law or arbitration recover from he be any  thing unjust or unreasonable in this No it be what Mr naish if present ought  in justice in honour in conscience to have do and what if he have refuse to do  be may have be compel by law to do which will have make the company equal  secure though with more harsh usage more dishonour and disgrace to himself but  it be urge that they insinuate and inculcate to mrs naish that they will send  a ship to the cape or saint Helena to seize his person as well as big  unlicensed good and bring he a prisoner to England by force which be more than  they can lawful do whereby she be put in fright and concern for the life of  her husband and thereby induce with reluctance to make the deposit which  otherwise she will not have do the deposit be therefore draw from her artful  and unfair by false representation ought to be look upon as null and void in  itself but to I there seem a considerable difference where the thing prevail  upon to be do be a thing just and reasonable in itself and where it be a act  in itself unreasonable and tortuous to he that do it in the first case many  instance may be give where the thing shall stand good notwithstanding some  irregularity in the obtain of it quod become non to withhold factum valet but  to make what have be do in this case to amount to a fraud and imposition  comens er p upon mrs naish be to presume what do not appear in proof and yet  it be a know rule that fraud be never to be presume the circumstance that must  help out the court to determine the proceed of the defendant the eastindia  company in this case to be a fraud upon the plaintiff must be all extend by  presumption for there be no positive proof of they with regard to the  defendant it be say that the eastindia company come to a comens resolution of  send a ship to bring the plaintiff a prisoner to England by force in order to  influence mrs naish to make a deposit but no such resolution appear it be only  presume because there be such discourse about the eastindia house and Lloyd  say it be agree in the court of director but by who or when it do not appear  it be certain that no such determination appear upon the company be book or  other authentic act of the company it be say that Woodford governor Harrison  and sir Matthew Decker treat as agent of the company but no authority give to  they by the company appear it may as well be presume that they act as friend  to the plaintiff it be presume that these agent raise the rumour of send a  ship for the plaintiff by concert and contrivance with the defendant to  terrify and intimidate mrs naish but it may as well be presume that the talk  arise from mistake and misapprehension of the law in this matter by the  statute Geo c sec make to prevent his majesty subject from trade to the  eastindies under foreign commission it be say that all offender may be seize  and bring to England and commit to gaol till they have find security to answer  the offence and not go out of the court or the kingdom without leave of the  court and by the statute Geo c it be provide that if any of his majesty  subject shall go to or be in the eastindies contrary to the law now in be it  may be lawful for the company to arrest and seize such person where find in  the limit aforesaid and to send he to England to answer the offence c this Act  can extend to the plaintiff who go by licence and as servant to the company  but it be possible nay not improbable it may be at first apprehend to do so  till upon mature consideration or better advice they become convince of the  contrary so that all the discourse and talk of send a ship c be not the effect  of any fraudulent contrivance to impose upon the plaintiff but mere ignorance  or inadvertency and then the case will be exact parallel to that of frank and  frank that may comens car where a man seize of a copyhold in fee and of a  freehold in tail with remainder to his elder brother devise the freehold to  his young the copyhold to his elder brother the brother come to a agreement in  write that each shall enjoy the land accord as they be devise by the will and  to draw on such agreement the young brother pretend that the testator have  suffer a recovery but there be real no recovery on record but only a  commencement of a recovery which may have be perfect if the party have live  the elder brother be entitle to the freehold there be no recovery and to the  copyhold as heir there be no surrender to the use of his will it be insist in  chancery that this agreement be find on a fraud there be a pretence of a  recovery when there be none but by the decree at the roll and afterward by the  chancellor on a appeal the agreement stand Eq Abr pl a I can Chan and as there  appear no fraud in the present case so there appear no imposition upon mrs  naish in what she do she be apprise of the law as well as the defendant and of  the resolution of the court of director have time to advice on what she do and  do long advice and deliberate about it it be plain propose what be desire and  she form her letter not only on a consultation with governor Harrison her  friend but with hall and Mr Bernard her own solicitor so there can be the  least colour of surprise or imposition upon her but what she do be not only  approve by her friend but by her husband himself after his return to England  who declare himself well please and satisfy with what his wife have do now  indeed when he have be permit to return home and continue here undisturbed  till he have dispose of and settle all his affair and all illicit effect when  there be a verdict stand out against he for he will Willing get the deposit  out of the defendant hand as well as the gold of which by the absence of a  witness they can not prove the value comens if indeed the plaintiff have give  security to abide the event of the prosecu comens er p tions against he if  there have appear no ground for any such prosecution or in case the prosecutor  have gross delay their proceed there may be some pretence for the desire of  have the deposit restore the first pretence for the plaintiff bring this bill  be that his wife have no authority from he to make it it be upon that foot be  make his demand of it from the company but his letter of attorney to his wife  be now discover whereby it appear she have full power from he   act as she do  be now put it upon the foot of fraud and imposition but as there do not appear  any thing do by the defendant but what they may lawful do nor any thing do by  Woodford sir Matthew Decker and governor Harrison but in friendship and  service to mrs naish nor any thing do by her but what be just and reasonable  in itself and advantageous to her husband and approve of by he and what he be  bind in honour and conscience to have do or to give security to the company to  answer their demand against he I can think it agreeable to equity and  conscience to take this money out of the hand of the defendant and pay it to  the plaintiff who approve the deposit and have already enjoy the advantage on  his part of the term upon which the deposit be make unless he give security to  abide the event of the defendant prosecution against he or it appear that  there be not any reasonable ground for such prosecution in case there be any  real fraud or imposition upon mrs naish that will avoid what she do at law as  well as in equity the plaintiff may bring his action against the defendant for  so much money receive by they to his use in case the money be extort from her  by illegal mean by menace threat or imposition without any reasonable  consideration but if the plaintiff can recover at law I do not see any just  cause why equity shall interpose to annul a act just and agreeable to  conscience unless the plaintiff will do what conscience and equity require  which be to make the defendant safe in respect to any fraud commit by he in  comens their service he that expect equity shall do equity what be say that it  be hard that the plaintiff shall be keep out of so large a sum of money  proceed from not consider that mrs naish have receive the shoe or flat piece  of gold near three or four month before her deposit so that she be enable out  of this illicit treasure to raise the whole money before it be pay and that  there be now find a verdict against the plaintiff for more than that sum which  be deposit which if judgement be against the plaintiff upon that verdict the  defendant may seek for as they can when the plaintiff have give no security to  answer their prosecution that if in the event of these proceed it shall appear  that there be nothing due from the plaintiff to the defendant the plaintiff  will be reimburse the money deposit with interest baron Thompson think that  the defendant ought to be charge with all the acta of Woodford Sir Matthew  Decker and governor Harrison since they act for they and their benefit and  must be suppose to do so by authority since sir Matthew Decker act by their  order and declare that the company have come to resolution to send a ship to  seize the plaintiff and Lloyd say that it be so agree in the court of director  but be give his opinion against the defendant return the deposit to the  plaintiff at present the court be divide in opinion upon this case the decree  be suspend till sir Robert Walpole the chancellor of the exchequer can be at  leisure to hear it and give his opinion therein which he do in Michaelmas term  follow when the case be again argue by the counsel on both side before he and  the baron and after hear the argument of the counsel the baron deliver their  opinion seriatim as before after which the chancellor give his opinion as  follow he be of opinion that the money be not proper to be repay by the  company that he shall think the company comens ought to be bind by the act of  the agent of the company but in this case he apprehend that the transaction  between the company and mrs naish begin on the that of September that then she  by letter make a proposal of a deposit of to secure her husband return to  England and abide the determination of all dispute at law or by arbitration  provide they will give assurance that he shall not be arrest nor his person  secure this proposal be accept and the assurance give all that precede be a  treaty to bring on this accommodation the friend of mrs naish do the best they  can for comens er p her Mr hall Mr Bernard and governor Harrison form a letter  for her to write to the company Mr Woodford and sir Matthew Decker act on  behalf of the company do the best they can for they alter the letter as may  best suit they Mr Woodford and Mr Bernard for aught I hear be of equal ability  and each be Willing to assist his own client that the letter of mrs naish be  for two purpose to secure her husband return to England and his abide the  issue of all suit there when return it be evident the last be not yet fulfil  information be order and good ground for they whether all the evidence appear  then which be now produce appear not but whether it do or not the company have  then information of fraud commit by the plaintiff which be now verify and make  plain by letter under his own hand it be their duty upon such a discovery to  order a prosecution they can not otherwise answer it to the world nor  discharge their trust to the company this therefore be do a information be  file be now depend he have give no other security to answer the company be  demand and as this deposit of be the only security they have and mrs naish  have power to make it I think it not reasonable to take this security from  they chief baron and baron carter then the plaintiff bill ought to be dismiss  which be object to by the counsel for the plaintiff the other baron be for  retain it till the end of the suit depend to which I say that the opinion of  the chief baron and baron carter be that the comens shall be repay by the  company with interest I and baron Thomson be against the repayment at least  till the event of the information now depend appear upon which possible more  than that sum may be recover from the plaintiff but since it be then object  that the detainer can not be decree on that bill and the plaintiff may by a  new bill have make the company safe be relieve I be not against the dismission