Page:The English Reports v1 1900.pdf/1035

The appellant, in the month of April 1716, put several goods and merchandize, to the value of £2000 sterling, on board a ship of his, called the King David, then lying at the port of Dublin, to be sent to, and sold at the Madeiras and other Spanish islands; and, at the request of the respondent, employed John Maddin, the respondent's son, a young man under the age of twenty-one, to be his Supercargo and Factor, upon the respondent's engagement, by a note under his hand, that his said son should discharge his trust faithfully and honestly.

The appellant accordingly, on the 5th of April 1716, gave instructions in writing to the said John Maddin, for his conduct and behaviour in the said trust; and therein, among other things, ordered him to sell his whole cargo for ready money, and to bring home with him such ready money as he should receive; and if he could not sell all the said goods for ready money, and the wines of that season should not be good, that he should barter such of the goods as should remain unsold, for the best Malmsey and Palm wines of the next season, and bring them with him; and gave him directions how he should dispose of them at his return.

In a few days afterwards, the ship sailed from Dublin, and on the 17th of May following arrived at Fyall, where the said John Maddin sold part of the goods for about £75 sterling, in ready money; and the rest he bartered with one Thomas Maguire at Port Oratavia, in the island of Teneriffe; and agreed with him, that he should give of the best Malmsey wines, the full value of the cargo at a price to be agreed on; and if the price of wines should not be broke at the time that Maddin was to embark them, then the price was to be settled by persons to be named by him and the said Thomas Maguire. These wines were to be shipped as early in the month of December, as any ship there should be loaded; and as many of them were to be put on board the ship King David as she could carry, and the rest were to be sent, according to the orders of Maddin, or the appellant.

This agreement with Maguire, was made on the 22d of August 1716; and on the 30th or 31st of that month, Maddin caused the Master of the ship to set sail, and he himself came away with her empty to Dublin; having left all the appellant's effects behind him, and particularly the ready money, for which he had sold some part of the goods; without waiting for, or so much as settling the price of the new wines, contrary to his said instructions, and also to the directions given by the appellant to one Owens, who went with him, and whose instructions he often saw.

[394] In consequence of this conduct, the appellant was forced to send another ship on purpose to Teneriffe, to bring home the said wines and money; and was at a new expence of insurance for her, though he had before insured the King David, and was likewise at the charge of sending another Supercargo; by which, and by the loss of an early market, the appellant sustained damages to the value of more than £400 sterling.

The appellant therefore, in Hilary term 1717, brought his action on the case against the respondent, in the Court of King's Bench in Ireland, and assigned for breaches of trust in the said John Maddin, his not bringing home the appellant's ready money, for which he had sold part of the cargo, and his bringing home the said ship empty. But the respondent, instead of pleading at law, where alone the matter ought to have been determined, filed a bill against the appellant in the Court of Chancery in Ireland; and having therein set forth the agreement to make his son Super-cargo to the said ship, and his own note for his said son's faithful discharge of the trust and pretending, that he must examine witnesses in the said island of Teneriffe, he prayed to be relieved in equity; and obtained an injunction for want of the appellant's answer, which was afterwards ordered to continue, till the hearing of the cause.