brown case Chaloner ogle Esq  Appellant John SANSOM Respondent that July Mews  dig ten xiv two captain of ship of war enter into a agreement that all prize  take by either of they whether in the ship they then have or in any other ship  which they may thereafter command shall be equal divide between they one of  they change his ship which meeting with a accident be order to be lie up and  it be some time before he get another the other captain continue cruise all  the time but object to account for the prize which he take during the interval  of his partner be unemployed but hold that he be Accountable for all the prize  take from the date of the agreement the appellant and the respondent testator  be respective captain of ship brown er p of war and incline to share equal in  the good fortune of each other enter into the follow agreement for that  purpose memorandum this that day of November it be covenant promise and agree  upon by and between captain Michael Sanson of her majesty ship mary galley and  captain Chaloner Ogle of her majesty ship tartar on the respective part and  behalf of they the say captain each to other that all and whatsoever prize or  prize shall be take by either of the say captain whether in their respective  ship before name or in any other of her majesty ship which they may hereafter  happen to command all such share or share of prize plunder bounty or ransom  money which shall become due as aforesaid to either of the say captain by any  capture or recapture whatsoever from the day of the date hereof for and during  the present war with France or Spain shall be equal divide and distribute  between the say captain to their common and respective use in further  confirmation thereof they the say party do bind and oblige themselves each to  other in the penalty of forfeit each to other in case of failure of any part  of the forementioned agreement the full sum of double the value which the say  share may amount to in witness c soon after this agreement captain Sanson  receive order from the admiralty to cruise with his ship in the channel and  the appellant in pursuance of like order go first to Newfoundland and  afterward to the straight and each of they take several prize the appellant  continue in the command of his ship the tartar but Sanson change his ship for  the bonadventure which soon afterward receive damage at sea by strike on a  sand be order to be lie up and the captain after some month application for  another ship be appoint to the ship more of which he die commander in November  but he take no prize in either of these two ship some time after captain  Sansoms death the appellant return to England whereupon the respondent apply  to he for a account of the prize he have take since he have be out and to be  pay one moiety of the value thereof pursuant to the agreement brown the  respondent on his part offer to account with the appellant for a moiety of the  prize take by captain Sanson but the appellant put a direct negative upon this  application the respondent in Michaelmas term exhibit his bill in chancery  against the appellant for a specific performance of the agreement and the  defendant by his answer to this bill submit to account for all the prize which  be take while he and captain Sanson be both in command but insist that as  Sanson have voluntary quit the mary galley and through his own wilful act have  continue for fifteen month without any command he be not entitle to any share  of the prize take by the defendant during that interval on the that of  December the cause be hear at the roll when his honour declare that by the  construction of the agreement captain Sanson during the time that he be not  commander of any one of her late majesty ship be not entitle to any share of  the prize which become due to the defendant within that time and therefore  decree that the account shall only be take during the time that both the  captain be in command and that what shall appear due on such account shall be  pay accord the plaintiff be dissatisfy with this decree apply for and obtain a  rehear before the Lord chancellor Cowper on the that of may this be in the  second Chancellosrship of Lord Cowper who be first make chancellor in may and  again in September the only instance of this kind that ocurs in our history  except in the case of Lord Thurlow who be also twice chancellor first in and  again in when his lordship be please to declare the meaning of the agreement  to be that the captain shall supply the want of each other during the war and  that the mutual contingency of be continue in command for a great or lesser  part of that war be one of the chance which they intend to run and therefore  it be decree that a account shall be take of all the prize make by the two  captain whether in their first mention ship or any other which either of they  afterward brown er p command and of all prize c which become due to either of  they from the date of the agreement to the time of captain Sansoms death from  this decree the defendant appeal insist n Lechmere S mead that it be not the  intent of the party to the agreement that they shall be Accountable to each  other for any prize but what be take while they be both in command and that  their mutual command and the hazard which they be several to run in quest of  prize be the consideration of the agreement and the only inducement to their  make it that the construction make by the last decree be not warrant by the  agreement for it can not from thence be collect that the captain mean to  supply the want of each other during the wax or to run the hazard of either of  they be turn out of the service nor can it be think either just or reasonable  that captain Sanson while actual out of service and take his case at home  shall reap a brown moiety of the benefit obtain by the appellant at the  continual hazard of his life abroad especial when it be consider that Sanson  voluntary quit the mary galley for a old decay ship which be the sole occasion  of his be out of service and therefore it be hope that the decree at the roll  will be confirm and the subsequent decree reverse on the other side it be say  t Lutwyche S Cowper that both the word and intent of the agreement be plain  and positive that the party be to be mutual sharer in the fortune of each  other and the time of its continuance be precise ascertain videlicet during  the then present war with France and Spain that the agreement be to share the  prize take by those ship they then have or any other ship which plain imply  that either of they may be at liberty to change his ship that captain Sanson  do not quit the mary galley till he have get the bonadventure which be a four  rate ship and which of all other kind of ship be well know to be the most fit  for cruise that this ship receive a accidental damage in the service and be  order by the admiralty to be lie up and refit the captain use his utmost  endeavour and application for another ship and at length procure the more in  the command whereof he die that the agreement be equal and mutual on both side  and if the appellant have be order to stay at home the whole time or have not  be fortunate enough to take any prize yet he will have be entitle to a moiety  of whatever captain Sanson have take and thereof over that advantage ought to  be mutual accord after hear counsel on this appeal it be order and adjudge  that the same shall be dismiss and the decree therein complain of affirm jour  vol p