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![handle is hein.slavery/ssactsengr0905 and id is 1 raw text is: STEWART V. GIBSON [1838, 1840] vii CLARK & FINNELLY.
The Lord Chancellor :-My Lords, notwithstanding the complexity of this case,
and the difference of opinion amongst the Judges upon some points, it does not appear
to me that there is much difficulty in deciding upon the course this House ought to
adopt, because there are points upon which there is a uniformity of opinion amongst
the Judges, in which I think it is [705] impossible not to concur, as to such part of
the case as must regulate that course, if your Lordships agree in opinion with the
learned Judges upon those points. That the condition of the bond was broken,
there is, I conceive, no doubt. In this all the Judges concur; and all but one concur
in thinking that the appropriation of the property of the collector, towards payment
of the debt due from him, was acondition precedent to calling on the surety: whether
it was to exhaust the whole of his property, or such part alone as came to the know-
ledge of the Commissioners, was the subject of much difference of opinion amongst
the Judges; but as the defendant, by his fifth plea, set up the defence that property
of the collector of which the Commissioners had notice had not been applied, and as
'the decision must turn upon that plea, it does not appear to me to be very material
to consider how far the defendant might have defended himself by pleading and
proving that the collector had property unapplied, of which it was not shown that
the Commissioners had notice.
According to the opinon of all the Judges but one, the fifth plea, if established by
a verdict., would have amounted to a good defence to the action. Objections were
made as to the manner in which the plaintiffs' replication to the fifth plea was
framed; but in substance the replication tendered an issue on the defence set up in
the fifth plea, which alleged that the collector had property, of which the Commis-
sioners had notice. The defendant did not join issue on the point so raised, but
by his rejoinder departed from his plea; and the plaintiffs, instead of taking advan-
tage of that departure in the proper manner by demurrer, took issue on this irregular
i ejoinder. And the question is, what, under such circumstances, ought to be the fate
[7.06] of the action. The issue so raised being, if it is to be considered an issue at all,
an immaterial issue, cannot, though found for the defendant, afford ground of a
judgment for him in the action. At the same time, the state of the pleadings pre-
cludes the plaintiffs having a judgment no- obstante v redicto; for, so far from
there being any admission upon the record of their title, there is the fifth plea, which,
if true, would constitute a good defence to it. This unfortunate state of the plead-
ings could not have arisen without blunders on both sides. That there can be no
repleader in this House appears clear from the opinion of all the Judges, and the
authorities to which they refer; and as there can be neither judgment for the plain-
tiffs nor for the defendant, the only course is to reverse, simpliciter, the judgment
of the Court below.
Lord Brougham :-The defendant cannot get his costs, though he has succeeded
here: but upon the whole, everything connected with the rejoinder being considered.
I cannot say that that in my opinion is to be regretted.
Judgment reversed.
[707] DUNCAN STEWART,-Appellant; WILLIAM GIBSON, and JOHN MAC-
KENZIE, his Mandatory,-Respondents [Jan. 23, 25, 26, 1838; Aug 3, 1840].
(Et e Contra.)
[Mews' Dig. xiii. 1372; S.C. 1 Robin. 260.]
An American ship was fitted out in the port of Liverpool and sent to the coast
of Africa, in 1806, on a joint adventure for trafficking in slaves. An English
ship was sent at the same time, by the same parties, with arms and ammuni-
tion, to be at the disposal of the supercargo of the American ship; security
having been given to the Admiralty that they were to be expended in trade
on the coast of Africa. On the arrival of the two ships in the river Congo,
the arms and ammunition were transhipped on board the American ship,
which was thereupon seized by a British privateer, and ultimately condemned
as contraband.-HELD that the whole transaction was illegal, and that no
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