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of war, and inclined to share equally in the good fortune of each other, entered into the following agreement for that purpose:

Memorandum: This 4th day of November 1708, it is covenanted, promised, and agreed upon, by and between Captain Michael Sansom, of her Majesty's ship Mary Galley, and Captain Chaloner Ogle, of her Majesty's ship Tartar, on the respective parts and behalfs of them the said captains each to other, that all and whatsoever prize or prizes shall be taken by either of the said captains, whether in their respective ships before named, or in any other of her Majesty's ships, which they may hereafter happen to command; all such share or shares of prize, plunder, bounty, or ransom-money, which shall become due as aforesaid, to either of the said captains, by any capture or re-capture whatsoever, from the day of the date hereof, for and during the present war with France or Spain, shall be equally divided and distributed between the said captains, to their common and respective uses. In further confirmation thereof, they the said parties do bind and oblige themselves, each to other, in the penalty of forfeiting each to other, (in case of failure of any part of the fore-mentioned agreement,) the full sum of double the value which the said shares may amount to. In witness, &c.

Soon after this agreement, Captain Sansom received orders from the Admiralty to cruize with his ship in the Channel; and the appellant, in pursuance of like orders, went first to Newfoundland, and afterwards to the Streights; and each of them took several prizes. The appellant continued in the command of his ship the Tartar, but Sansom changed his ship for the Bonadventure, which soon afterwards receiving damage at sea, by striking on a sand, was ordered to be laid up; and the captain, after some months application for another ship, was appointed to the ship Moore, of which he died commander in November 1711; but he took no prizes in either of these two ships.

Some time after Captain Sansom's death, the appellant returned to England; whereupon the respondent applied to him for an account of the prizes he had taken, since he had been out, and to be paid one moiety of the value thereof, pursuant to the agreement; [150] the respondent, on his part, offering to account with the appellant for a moiety of the prizes taken by Captain Sansom.

But the appellant putting a direct negative upon this application, the respondent, in Michaelmas term 1713, exhibited his bill in Chancery against the appellant, for a specific performance of the agreement: and the defendant, by his answer to this bill, submitted to account for all the prizes which were taken, whilst he and Captain Sansom were both in command; but insisted, that as Sansom had voluntarily quitted the Mary Galley, and, through his own wilful act, had continued, for fifteen months, without any command, he was not entitled to any share of the prizes taken by the defendant during that interval.

On the 10th of December 1714, the cause was heard at the Rolls; when his Honour declared, that by the construction of the agreement, Captain Sansom, during the time that he was not commander of any one of her late Majesty's ships, was not entitled to any share of the prizes, which became due to the defendant within that time; and therefore decreed, that the accounts should only be taken, during the times that both the captains were in command; and, that what should appear due on such account, should be paid accordingly.

The plaintiff, being dissatisfied with this decree, applied for, and obtained a re-hearing, before the Lord Chancellor Cowper, on the 14th of May 1715,^[1] when his Lordship was pleased to declare the meaning of the agreement to be, that the captains should supply the wants of each other during the war, and that the mutual contingency of being continued in command, for a greater or lesser part of that war was one of the chances which they intended to run; and therefore it was decreed, that an account should be taken of all the prizes made by the two captains, whether in their first mentioned ships, or any other which either of them afterwards