Mc Neil vs. Magee et al. The exception, to which allusion has been made, is the testimony of Mr. Sawyer in respect to the purchase made by the defendant, Adams. This witness testifies to a coversation with Adams, soon after his purchase, under circumstances so peculiar, that it is difficult to resist the belief that Adams had notice at the time of his purchase, if the credibility of the witness is not impeached. It is true, that the witness is manifestly mistaken as to time, for he puts the occurrences in 1815 or 1816, whereas Adams purchased in November 1813. But such a mistake would not ordinarily be fatal to his general credit. Still, giving the fullest effect to the testimony of this witness, it is but one witness against the positive denial of Adams's answer; and I am not satisfied, that the other circumstances do carry with them such positive force, as entitle the Court to disregard that answer. In respect to Wheeler, who was not an original defendant, but who died before he could answer, after he was made a party, I do not find, that it is any where stated directly in the answers of the defendants, that he was a purchaser without notice, though some of the averments seem intended to include him in this predicament, but are not pointedly drawn. It is matter of regret with me, that this omission, which is obviously a clerical slip, should have occurred. The point, which it raises, is somewhat nice and difficult, but upon which, after full deliberation, I have come to a settled conclusion. The point is this,-whether a plaintiff, setting up an equitable title against a legal title in purchasers, (it may be different, where it is an equity against an equity,) is not bound to aver in his bill, that these purchasers had notice of his title; and if so bound, then, whether he is not bound to prove at the hearing the fact of notice, unless it is distinctly admitted by the answers of the defendants. I think, that he is so bound in both respects. It appears to me, that the legal title is a sufficient protection to the defendants, and that a court of equity cannot displace that title, in favour of a mere equitable title, unless, assuming all the facts stated in the bill to be true, these facts justify Mc Neil vs. Magee et al. a decree in favour of the equitable title. Now, where the bill itself sets up a legal title in purchasers, an equity does not attach to the estate in their hands, unless they have notice of it. And, therefore, notice must be averred in the bill; otherwise, the plaintiff has no case. It is true, that upon a bill filed calling for a discovery of title from a purchaser of the legal estate, as well as for relief, he may, if he pleases, interpose, as a bar to the discovery and relief, the plea, that he is a purchaser without notice at the time of his purchase, and payment of the purchase money. And in such a case his plea will be bad, without such an averment and denial of notice; and if notice is charged in the bill without a supplemental answer, also denying that notice as charged in support of his plea. But the reason is, that by the plea he sets up a positive bar to all further inquiry and all discovery. If, instead of such plea, he chooses to answer generally and go to a hearing, he may well do so. And in such a case the parties stand exactly as they do in all other cases, that is to say, the plaintiff must prove all the allegations in his bill necessary to establish his right to a decree, unless so far as they are admitted by the answer. If the answer omits to deny the notice charged in the bill, that is no admission of the notice. The plaintiff may object to the answer for insufficiency in this respect, as he may for insufficiency as to any other fact charged. But if he takes no exception, and the cause goes to a hearing upon the general replication, it is a waiver of the exception, and the plaintiff must prove his case. If notice is essential to a decree, he must affirmatively establish it; for that is the whole foundation of equitable relief against the legal title. Some obscurity is thrown over this subject by confounding cases, where a preliminary objection is taken by way of plea, or special answer, as a bar to all further discovery and relief; with cases where there is a full and general answer and hearing, upon the whole merits. This is not the place to go into a full vindication of this doctrine, though it Mc Neil vs. Magee et al. appears to me supported by a close comparison of the authorities, keeping in view the distinction alluded to.16 In my view of the matter, therefore, it is incumbent on the plaintiff to establish affirmatively, that Wheeler had notice, before the Court can take from his grantees the legal estate vested in them, even supposing notice to have been brought home to the latter at their respective purchases from him. I do not dwell on this last consideration, though there is much room for observation, because there is not sufficient proof to affect the original purchasers with notice, and therefore it is not necessary to consider, how the case would otherwise stand as to notice to the subpurchasers under them. It is also a circumstance not altogether to be passed over, that Magee being dead and his estate insolvent, and the defendants having made expensive improvements upon their estates, they can, in case of a decree against themselves, have no remedy over upon their covenants of warranty against Magee, or his representatives. If Mc Neil, instead of lying by for so great a length of time, had pressed for redress at an early period, they might have had an effectual remedy ever. I lay no stress upon the releases which the defendants have procured from Binney, because they operate as a simple extinguishment of his claim against them under the mortgage to Carey, assigned to Amory, and by him to Binney. They do not purport to assign any title, or to grant an interest in or under that mortgage to either of the releases; and therefore create no bar in the way of the plaintiff. Upon the whole, the conclusion to which my mind has arrived is, that there would be great difficulties in the way of relief for 16 See Williams vs. Williams, 1 Ch. Cas. 252. Harris vs. Ingledew, 3 P. Will. 91, 94.-Eyre vs Dolphin, 2 Ball & Beat, 290, 302, 303.Jerrard vs. Saunders, 2 Vez. jun. 454, 458.-Beames Pl. 233, 245.Bruce vs. Duchess of Marlborough, 2 P. Will. 491.-Jones vs. Thomas, 3 P. Will. 244, note F.-Sugden Vendors, ch. 18, p. 701, 702.— Hardy vs. Reeves, 5 Vez. 426.-Coop. Eq. Pl. 312. Mc Neil vs. Magee et al. the plaintiff, if Magee were now before the Court, as sole owner and defendant; that the equity is far less strong against the purchasers under him; and that, under all the circumstances, my duty is to dismiss the bill; but it will be without costs to either party. Bill dismissed. UNITED STATES vs. BENJAMIN HAINES AND OTHERS. The crew of a ship who have signed shipping articles for the voyage under a particular master, without any clause providing for a change of master, are not discharged from the articles by the dismissal of the master by reason of sickness, or any other reasonable cause, and the appointment of a new master; but they are bound to obey the new master. If in such case they combine together to refuse all duty on board, and to refuse obedience to the new master, that is an endeavour to make a revolt within the mean. ing of the crimes act of 1790, ch. 9 [36], § 12. INDICTMENT against the defendants for an endeavour to make a revolt on board the ship Plato, in Boston harbour, founded on the crimes act of 1790, ch. 36 [9], § 12. Plea, not guilty. At the trial it appeared in evidence, that the ship was owned by American citizens, and was bound on a voyage from Boston to Havana, from thence to ports in Europe, from thence to the East Indies, and back to Europe or the United States; and that one Thomas Dimmock was master. The defendants were seamen on board, and had shipped for the voyage under the common shipping articles, in which Thomas Dimmock was described as master, and there was no clause, "or whoever else shall be master for the voyage," in the articles. The ship being ready for the voyage dropped down to the outer harbour of Boston, called Nantasket Roads, to proceed to sea, about the 10th of June 1829. But the master, before actually proceeding to sea, was taken ill with a dangerous disease; and in consequence of United States vs. Haines et al. his illness it became necessary to substitute another master for the voyage. The new master (who was a competent and suitable master) came on board with some of the owners, while the ship lay in Nanțasket Roads, and the necessity of the change of the master was stated to the seamen. They made no particular objection to the new master, whose character did not appear to be known to them; but the defendants and another of the crew (in all seven) contended, that their contract was dissolved by the removal of the master, and they accordingly refused to go on the voyage. Orders were given by the new master to weigh anchor and proceed to sea; which the defendants refused to obey; and those of the crew who were ready to obey, took the starboard side of the ship, and the defendants and those who acted with them took the larboard side. The master and owners then resorted to persuasion, and endeavoured to induce the defendants to return to their duty, and to obey the orders; and each being severally asked, refused, though the legal consequences of their refusal was stated to them. They offered no force to the master or owners, and used no threatening or insulting language. The defendants were then carried on shore, and being apprehended on a warrant, were brought before the District Judge, who upon the examination explained the law to them, and urged their return to duty. But they refused, and were committed for trial. The owners, upon the examination, expressed an entire willingness to take them on board again, and to forgive and forget the past, if they would go upon the voyage; but these offers had no effect. The cause was argued by S. D. Parker for the defendants, and by Dunlap (District Attorney) for the United States. Two points were made in the defence. 1. That the contract of shipment was dissolved by the appointment of a new master. 2. That the acts of the defendants did not amount to the legal offence charged in the indictment. On the last point, the case of United States vs. Kelly (11 Wheaton, 417) was cited. |