Principal and Agent-Bill of Exchange.

A, residing abroad, established an agency with B, in England, for the following purpose: A. drew bills on B, which the latter accepted; and "to cover B," A. from time to time sent undue bills of other parties to B: -Held, that B. not having paid his acceptances, was not entitled to treat the undue remitted bills as cash; and, consequently, that two bills which remained in specie in his hands, did not pass to his assignees, but belonged to A.

In July and August 1836, the plaintiffs, Messrs. Jombart & Lacoste, merchants, residing in Belgium, employed Joseph Woollett & Co. as their bankers and commission agents, limited to the following purposes. The plaintiffs drew bills on Woollett, which the latter accepted, and, to meet these acceptances when due, the plaintiffs remitted to Woollett bills which they purchased in Belgium for that purpose. The course of dealing was evidenced particularly by letters, which passed between the parties. When Woollett accepted bills, he expressed himself thus: "We have accepted on your account your bill upon us, which we have carried to your debit, relying upon you to cover us in due time;" or thus, ". we have accepted your bill for 6441. to your debit."

The plaintiffs, in transmitting bills, directed them "to be passed or placed to their credit, or to the credit of their ac

"We have accepted on your account your bills on us, which we have carried to your debit, relying upon you to cover us in due time."

In this course of dealing, a number of bills had passed between the parties; and on the 22nd of October 1836, Woollett became insolvent, and stopped payment on the 24th. At this time, all the bills remitted by the plaintiffs had been either discounted or sold by Woollett, except two bills of 50l. and 1,000l., which remained in his possession. On the other hand, Woollett had only paid one of his acceptances, to the amount of 531., the others were afterwards paid by the plaintiffs; and on the balance of account, Woollett was indebted to the plaintiffs in more than 1,000/., independent of the bills.

By arrangement, the proceeds of the two bills were carried to the account of three of the creditors, to abide any legal proceedings which might be taken thereon.

This bill was filed by Messrs. Jombart against Woollett and the three creditors, to have it declared, "that the two bills for 50l. and 1,000l. belonged to the plaintiffs, and to restrain the creditor trustees from distributing the produce.

the parties should be bound, as to the whole suit, by the result of this motion.

Mr. Wigram and Mr. Richards, in support of the appeal.

The Solicitor General and Mr. Bligh, ontrà.

The following authorities were referred

to:

Ex parte Smith, Buck. 355.

Ex parte Armitstead, 2 Gl. & Jam. 371. Bent v. Puller, 5 Term Rep. 494. Buchanan v. Findlay, 9 B. & C. 738; s. c. 7 Law J. Rep. K.B. 314. Thompson v. Giles, 2 B. & C. 422; s. c. 2 Law J. Rep. K.B. 48.

Ex parte Frere in re Sikes, 1 Mont. & Mac. 263.

Ex parte Thompson, 1 Mont. & Mac.

Ex parte Oursell, Amb. 297.
Ex parte Aiken, 2 Mad. 192.
Moore v. Barthrop, 1 B. & C. 5; s. c.
1 Law J. Rep. K.B. 4.
Thorpe v. Thorpe, 3 B. & Adol. 580;

s. c. 1 Law J. Rep. (N.s.) K.B. 170. Ex parte Copeland, 3 Dea. & Ch. 199. Ex parte Prescott, 3 Dea. & Ch. 218. Ex parte Benson, 1 Mont. & Bl. 120;

s. c. 3 Law J. Rep. (N.s.) Bank. 19.

The LORD CHANCELLOR.-The question is, whether these two bills of 1,000l. and 501. belong to the assignees of the London agent, or to the foreign merchants. The rule on this subject is sufficiently clearly laid down in the cases of Thompson v. Giles, Ex parte Pease, Ex parte Smith in re Power, and Ex parte Frere in re Sikes, and the result is, that unless there be a contract to the contrary, if a person remits to his agent bills not due, for a particular purpose, that purpose not being answered, the latter has no right to deal with the bills until they are due; and if the agent carries them to account, and becomes a bankrupt, the property in the bills is not altered, but remains in the party making the remittance.

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That, of course, may be regulated by usage, but prima facie without special contract, the presumption is, that the bills are received by the agent, for the purpose of indemnifying him against any eventual loss, and are not to be dealt with as his own, and immediately converted into cash. In Ex parte Smith in re Power, a bill of exchange was remitted, with a direction to do the needful," which was construed not to give the house to which it was remitted a right to sell the bill, but only a right to keep it until the time arrived, when it became payable. Unless, therefore, there is to be found in the correspondence in this case, any special contract, authorizing the London agent to deal otherwise with the bills, viz. to make them immediately his own, he would be bound to keep them until they became due. Several letters were referred to, to shew what the contract really was between the foreign house and the London house :among others, I find a letter dated the 29th of July 1836, from the London house to the foreign merchants.-[His Lordship read the letter.] Now, the expression "to cover us in due time," can only mean that funds should be provided in due time to meet the obligation into which the writers had entered by accepting the bill referred to in the letter. There is another letter from the foreign merchants to the London house, dated the 8th of August 1836.-[His Lordship read the letter.] Here the remitters, Jombart & Co., request the London agent to carry the 300l., due on the 13th of September, "to the credit of their account.' That expression may be ambiguous. It might mean either that the bill, or that the money should be carried to the credit of the account; but it is obvious, that if the bill had been discounted, there would not be 300l. to be carried to the credit of the account, because the amount would be diminished by the sum paid for discount.-[His Lordship read letters of the 11th, 23rd, and 26th of August.] In the letter of the 26th of August Woollett says, you remitted us 3007., due on the 25th, upon Esdaile & Co., "upon which we will do the needful, and put to your credit as soon as received." In the letter I have last read we have the identical expression, "do the needful," which occurred in

Ex parte Smith, but explained, as it was not in Ex parte Smith, by the clause which follows. There, without any such explanation, it was held, that as the bills were remitted for a particular purpose, which affected them with a trust, they did not pass to the assignees; whereas, here, the writer explains what he means by "doing the needful;" that is to say, passing the bill to the credit of the remitters as soon as received.

There is then another letter from Woollett and Son, dated the 17th of October, in these words: "We have received your favour of the 15th current, covering 101. at sight, 500l. due the 31st of October, (3rd of November,) 501. due the 15th (18th) of November, amounting to 560l. to your credit when due." In order to to establish the right of the assignees, and to displace the title of the remitters of the bills, it would be necessary to make out by the correspondence, an authority to sell these bills; for the cases shew that the mere fact of sending bills, makes the party to whom they are sent, mere agents, for the particular purpose for which they were sent. Instead of finding in the correspondence any other authority, except the common custom of merchants, the correspondence proves the very reverse; and it is impossible to read it, without coming to the conclusion, that the only obligation of the foreign house, was to find the cash in time to meet the obligations of the London house, when due, and not to procure money, which might or not be necessary to meet the obligations. It is obvious that these remittances were made for the purpose of meeting obligations, which were not met. Therefore, the condition upon which the bills were remitted has not been performed, and the London agent may consequently be said, not to have done that which was requisite to complete his title. If the facts had not been so, I find these bills in specie not disposed of, and not discounted, and the obligation unperformed. I am of opinion, that the foreign house is entitled to these two bills, and the application to discharge the Vice Chancellor's order must be refused with costs.

The testator bequeathed to Catherine Miller, his widow, 3,000l. stock, 5l. per cent. government securities, and after giving various pecuniary and specific legacies, proceeded, "Item, at the death of my wife Catherine Miller, I give and bequeath unto my son James Miller, the sum of 1,000l. stock, in the Bank of England, in the 51. per cent. government securities, and also all the property of what nature or kind soever, which shall or may remain, after paying the whole of the bequests named in this will, to him, his heirs and assigns, as his and their own property;" he gave other legacies on the death of his widow, all of which he directed to be paid within six months after her decease. His will then proceeded in the following words: "Item, my will further is, that if any person or persons whose names are inserted in this will, and are entitled to claim any property by virtue thereof, shall die before they can prosecute their claim thereto, the property, so falling to the deceased person or persons, shall be equally divided amongst the nearest relations and next-of-kin, share and share alike."

The legatee, James Miller, died seven months after the testator; and the testator's widow died some time after.

This bill was subsequently filed by the children and representatives of James Miller against Ibbs, the executor of the testator, and some of the testator's next-of-kin, claiming certain sums, to which James Miller, if he had survived the widow, would unquestionably have been entitled under the above bequests. It was contended by the defendants, that as James had died "before he could prosecute his claim" to

the above funds, the same ought to be divided amongst the next-of-kin of the testator.

The only question, therefore, was, whether the words, "the nearest relations and next-of-kin," meant the next-of-kin of the testator or those of James Miller.

The Solicitor General and Mr. Monro, for the plaintiffs.

Mr. Tinney, for one of the children of the testator.

Mr. Treslove and Mr. Stinton, for other parties.

The LORD CHANCELLOR.-I have no doubt in this case, for it is clear that the object of the testator was to make a provision for the legatee; and where the legacy is clearly given for the provision of a child, the Court will, if possible, extend that benefit to the family of such legatee. The testator does not in terms specify amongst whose next-of-kin the property is to be divided; and to ascertain what he meant, I must look to the last antecedent, and the last antecedent is the person dying before he can prosecute his claim. I therefore think, that the children of the legatee are entitled to the same interest as the legatee himself would have been, if he were now living.

defendant obtained an order nisi for dissolving the injunction.

Mr. Pemberton and Mr. Webster now shewed cause against dissolving the injunction, contending, that it was not regular to obtain the order nisi after the publication had passed: that to determine the merits, it would now be necessary to go through the whole evidence in the cause, and that it would be productive of great inconvenience if the Court were to examine the evidence before the hearing of the cause.

Mr. Kindersley and Mr. Piggott, contrà, contended, that the defendant had a right to get rid of the injunction at any stage in the cause; and they cited Molineux v. Luard (1), and 1 Grant's Practice, p. 323.

The MASTER OF THE ROLLS was inclined to the opinion, that the course taken was irregular, but postponed deciding until he had inquired into the practice.

April 12.-The MASTER OF THE ROLLS said, he had inquired into the practice, but could not find any instance of the order nisi for dissolving an injunction having been obtained at so late a period as in the present case that he had caused the register's book to be searched, and found that in the case cited, the Court had, after replication, when the cause had not proceeded further, considered the propriety of continuing the injunction; but the order in that cause was made by consent: that there was no instance of an order nisi being obtained after publication, and, though reluctant to lay down any rule, he thought it was sufficient cause that the evidence had been published, which ought, therefore, to be taken into consideration; and, consequently, the injunction must be continued until the hearing, with costs to be paid by the defendant.

(1) Dick. 684.

Charity-Petition - Statute 52 Geo. 3. c. 101-Jurisdiction.

The legal estate of charity property had been vested in the corporation of Newark exclusively, but the management of the charity had been intrusted to the corporation conjointly with other parties. Disputes arose between the trustees, who had been appointed under the act for the regulation of municipal corporations, and the town council, relating to their respective right to interfere in the charity. Directions had been long before given by the Court for the management of the charity, which a change of circumstances had rendered it impossible to comply with. A petition was presented by the new trustees, praying that their powers and duties might be declared, and all proper directions given for the future management of the property:

Held, that the case was not within the 56 Geo. 3. c. 101, and that the Court could not therefore interfere in a summary way by petition, but that an information was necessary to give jurisdiction.

In 1556, William Phillipott, of Newarkupon-Trent, merchant, devised to the cor

poration of Newark certain real estates for the support of an alms-house, with a direction to employ the surplus rents, after repairing the alms-house and the estates, toward the fifteenths, or tenths, or other like charges, of the said town. The estates were to be under the management of the two chamberlains of Newark for the time being; and their accounts were to be passed yearly before the corporation, twelve coadjutors, the vicar, and two commoners, who also were the parties to fill up vacancies in the alms-house.

In 1732, an information was filed for the regulation of this charity, and by the decree made therein, all vacancies among the alms-men were to be filled up by the mayor and aldermen of Newark, and by twelve persons paying to the church and poor (such persons being substituted for the twelve coadjutors), and by the vicar and two commoners, or the greater part of them. The twelve coadjutors were to be chosen by the mayor and aldermen, and were to hold their office for life, or until they ceased to reside in Newark, or became aldermen. As to the two commoners, four persons were to be nominated by the inhabitants of Newark, paying to the church and poor, and two of the persons so