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commanded; and of all prizes, &c. which became due to either of them, from the date of the agreement, to the time of Captain Sansom's death.

From this decree the defendant appealed; insisting (N. Lechmere, S. Mead), that it was not the intent of the parties to the agreement, that they should be accountable to each other for any prizes, but what were taken while they were both in command; and that their mutual commands, and the hazards which they were severally to run in quest of prizes, were the considerations of the agreement; and the only inducement to their making it. That the construction made by the last decree was not warranted by the agreement; for it could not from thence be collected, that the captains meant to supply the wants of each other during the war, or to run the hazard of either of them being turned out of the service: nor could it be thought either just or reasonable, that Captain Sansom, while actually out of service, and taking his ease at home, should reap a [151] moiety of the benefit obtained by the appellant, at the continual hazard of his life abroad; especially when it was considered, that Sansom voluntarily quitted the Mary Galley for an old decayed ship, which was the sole occasion of his being out of service. And therefore it was hoped, that the decree at the Rolls would be confirmed, and the subsequent decree reversed.

On the other side it was said (T. Lutwyche, S. Cowper), that both the words and intent of the agreement were plain and positive, that the parties were to be mutual sharers in the fortune of each other; and the time of its continuance was precisely ascertained, viz. during the then present war with France and Spain. That the agreement was, to share the prizes taken by those ships they then had, or any other ships; which plainly implied, that either of them might be at liberty to change his ship. That Captain Sansom did not quit the Mary Galley till he had got the Bonadventure, which was a fourth-rate ship; and which, of all other kind of ships, is well known to be the most fit for cruizing. That this ship's receiving an accidental damage in the service, and being ordered by the Admiralty to be laid up and refitted, the captain used his utmost endeavours and application for another ship; and at length procured the Moore, in the command whereof he died. That the agreement was equal and mutual on both sides; and if the appellant had been ordered to stay at home the whole time, or had not been fortunate enough to take any prize, yet he would have been entitled to a moiety of whatever Captain Sansom had taken, and therefore that advantage ought to be mutual.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 20. p. 118.)

In the year 1685, Ambrose Muschamp, esq. as lord of the manor of East Horsley, in Surry, came to an agreement with the tenants holding of the same manor, for inclosing a piece of ground called the Great or Lower Common; which was parcel of the manor, and on which the tenants had a right of common. And to effectuate