Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14. 1893 IN riEnoRY OF JUDGE DOUGLASS BOARDMAN FinST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell Unlvaralty Library KD 1626.3.T91 1873 V.I A selection of leading cases on mercanti 3 1924 021 867 241 WSS^^Si Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924021867241 SELECTION OF LEADING CASES IE Till ii 11 WITH NOTES. ByXOWEN DAVIES TUDOR, 3y\c OF THE MIDDLE OiEMP'LE, ESQ., BARKISTEIt-AT-LAW, AUTHOR OF "A BELEOTION OF LEADINa CASES IN EQDITT," ETO. FROM THE SECOND LONDON EDITION. WITH ADDITIONAL NOTES AND REFERENCES TO AMERICAN CASES, BY GEORGE SHARSWOOD. Part First. PHILADELPHIA: T. & J. W. JOHNSON & CO., LAW BOOKSELLERS AND PUBLISHERS, No. 535 Chestnut Street. 1873. Entered, according to Act of Congress, in the year 1873, by T. & J. W. JOHNSON & CO., in the Office of the Librarian of Congress, at Washington. " / ■ HENRY B. ASHMBAD, PBINTEB, 1102 and 1101 Sansom Street. ADVERTISEMENT. In preparing this Edition, it has been deemed most ad- visable, in view of the size of the work, that the American notes should not be extended by a discussion of the cases. It has been the-aim of the Editor after each case to give full references to all the American authorities upon the sub- ject, so arranged that by consulting them the student can be put in possession of the principles which have been recognised in this country. To have given a treatise at large upon each topic would have very much increased the matter ; and short of this, a critical examination and dis- cussion would have been imperfect and unsatisfactory. The utmost care has been exerciSted in the selection and arrangement of the cases. G. S. April, 1873. PREFACE TO THE FIRST EDITION. The plan of this selection of Leading Cases is like that adopted in similar collections. Cases frequently cited in our Courts, or in which some important principle was first enunciated in clear and decisive terms, are first chosen, and to these are appended Notes, in which an attempt is made to develop the principles laid down in the cases, great care being at the same time taken to notice the recent authorities. The Cases in this work may be divided into two impor- tant divisions: the first, relating to ordinary mercantile law in time of peace; the second, relating to the effect of war^ and especially of maritime war, upon the property and contracts of merchants. In the first class of Cases will be found principally the judgments of Lord Hardwicke, C, Lord Mansfield, C. J., Eyre, C. J., Lawrence, J., Lord Eldon, C, Sir Wm. Grant, M. R., Lord Redesdale, C, Lord Bllenborough, C. J., Lord Tenterden, C. J., Lord Brougham, C, Lord Abinger, C. B., and Parke, B. (now Lord Wensleydale), — -judges than vi PEEFACB. whom the authority of none can be higher in all questions relating to mercantile law. The second class of Cases consists principally, as might be expected, of the decisions of Sir William Scott (better known now perhaps as Lord Stowell), whose judgments have, with no undue strain of compliment, been termed models of judicial eloquence. The subjects illustrated by the decisions selected as "Leading Cases," and the annotations thereon, will be found in the annexed List of Cases reported. 16 Old Square, Lincoln's Inn March, 1860. LIST OF OASES REPORTED. PART FIRST. THE PASES EEPEREED TO ABB THOSE BETWEEN BRACKETS [ J. PAGE BiRKLEY V. Peesgrave (General Average) . . 83 Clayton's Case (Appropriation of Payments) . . 1 Ceawshay v. Maule (Partnership — Dissolution of by- different modes — effects of) . . . .310 Devaynes v. Noble — Clayton's Case (Appropriation of Payments) 1 Dixon v. Sadler (Insurance — Implied Warranties) . Ill Don v. Lippmann (Conflict of Laws — Foreign Coi>- ' tracts) 233 Forbes v. Aspinall (Maritime Insurance — Adjustment of Average) ....... 204 Gratitcdine, The (Bottomry Bonds — Hypothecation) 30 Johnson v. Sheddon (Maritime Insurance — ^Adjustment of Average) 199 Joy v. Campbell (Bankruptcy — Reputed Ownership) 446 Lewis v. Rucker (Maritime Insurance — Adjustment of Average) ....... 192 LiNGHAM V. Biggs (Bankruptcy — Reputed Ownership) 439 Mace v. Cadell (Bankruptcy — Reputed Ownership) 437 Rouxe;. Salvador (Insurance — Total Loss — Abandon- ment) ........ 139 viii LIST OF CASES KEPOKTED. RowLANDSON, Bx PARTE (Bankruptcy — Double Proof) 407 RuFFiN, Bx PAETE (Partnership-^Couversion of joint into separate Bstate) ..... 387 Sandilands f . Marsh (Partnership — Power of Partner - to bind the Firm) 285 Tyrie v. Fletcher (Insurance — Return of Premium) 220 Waters v. Taylor (Partnership — Dissolution of by different modes — Bffects of ) . . . .329 WooLRiDGBy. BoYDELL (Insurance — Implied Warranties) 109 INDEX TO THE NAMES OF ENGLISH CASES CITED. THE PAGES BBIEEEED TO ARE THOSE BETWEEN BBACKETB [ ]. FAaS Abbt, The .... 807, 887 Abbott V. Burbage . . . 534 V. Pomfret . . . 539 Abbotts V. Barry . . .721 Abel V. Sutton .... 350 Abell V. Dauiell . . .640 Aberystwith Welsh Coast Rail- way Co. V, Plercy ... 18 Abingdon, Ex parte . . . 430 Ackermann, Ex parte . . . 423 Acraman v. Bates . . . 493 V. Morrice . . 622 Acteon, The . . . .951 Adam, Ex parte .... 433 Adams, Ex parte . . 420, 435 V. Banhart . . .302 ■V. Liardet . . 330, 332 V, Mackenzie . . . 157 Adelaide, The, Box . . 894, 897 Admiral, The . . . .890 Adonis, The . . . .896 Affalo V. Fourdrinier . . .425 African Steamship Co. v. Swanzy 177 Agace, Ex parte . . . 292, 303 Agacio V. Forbes .... 369 Agar V. Macklew . . . 365 A,guilar «. Rodgers . . . 232 Aina, The, Nystrom, . ' 803, 937, 946 Ainsworth v. Walmsley . . 573 Airey v. Borham .... 380 Akermann v. Humphrey . . 675 Akhurst v. Jackson . . . 380 Albert (Prince) v. Strange . . 584 Albion, The .... 58 Albrecht i> Sussmann . . 337 Alcinous V. Nigreu . . . 812 Alder V. Fouracre . 359, 367, 381 i PAOE Alderson v. Clay . . . 361 V. Pope . . . 349 V. Temple 527, 529, 534, 545, 557 Aldred t>. Constable . . . 536 Aldridge v. Bell . . .181 V. Johnson 611, 615, 616, 618 Alexander, The . . 5p, 59, 66, 869 The, Ages . V. Barker . Aline, The .... Alivon II. Furnival Allan V. Gripper Allen V. Kemble . V. Smith V. Sugrue . Allhnsen v. Borries Allwood V. Henckell . 369 66, 68 . 277 . 639, 665 261, 262, 265 . 689, 711 160, 176, 185 . 375 141, 145, 160, 184 Alsager v. St. Katherine's Dock Company . . . 691, 692 Alsop, Ex parte . . . ._ 560 Alves V. Hodgson . 251, 25&, 259 America, The .... 933 Ancher v. Bank of England 728, 729, 730 Anderson v. Maltby . . 402, 405 J)., Royal Exchange As- ' surance Company 145, 149, 164, 179, 183 V. Scott . . .655 i). Thornton . . 232 V. Wallis 144, 145, 149, 178 Andree «. Fletcher . . .230 Andrew v. Moorhouse . . 693 Andrewes v. Garstin . . . 359 Andromeda, The . . .937 NAMES OF ENGLISH CASES CITED. Angelique, The . Ann, The . The Smith . Anna, The, La Porte . 804 . 858 . 805 748, 760, 752, 753, 754 Dorothea, The . . .842 Catherina, The, Wupper . 944 Anne, The, Lord 839, 909, 913, 923, 924, 925, 927 Annen w. Woodman 118, n., 127, 228, 229 A-nnesley's Case . Anon., Oro. Eliz. 68 . Dy. 296 . 2 K. & J. 441 . 2 Mod. 236 12 Mod. 344 . 12 Mod. 446 . 12 Mod. 521 Styles 370 2 Ves. 629 4 Vin. Ab. 280, pi. 4 Salk. 444 . w.-Layfield Antram v. Chace Apollo, The, Bottcher -Appleby, Bx parte ■ Appleton V. Binks Apsey, Ex parte .Arbouin, Ex parte Arden v. Sharp . Argo, The A.rkley, Ex parte Arkwright, Ex parte Arlington v. Merrick Armadillo, The . Armet «i. Innes Armitage v. Winterbottom Armitstead, Ex parte 707 is 607 378 4 604 304 716 294 364 65 . 299 . 302 854, 859, 890 . 414 . 307 . 412, 431 432, 466, 487 . 303 83, 930 . 29 472, 475, 477 . 369 65 .123 292, 303 . 503 Armroyd v. Union Insurance Oo. 77 Armstrong v. Lewis . - . . 339 Arnold V. Poole (The Mayor of) . 22 Arnott V. Redfern . . . 264 Arthur, The . . . 883, 890 ■0. Barton . . •.61 Ashley's Case . . . '512, 5-14 V. Pratt . . . .123 Ashworth v. Stanwix . . . 306 Asia, The 858 Aspinwall v. London and North- western Railway Company . 307, 373 , assignee of Howarth, V. Pickl'ord . . 690 Astle V. Wright . . 377, 379 Astley V. Weldon . 365 Atalanta, The . . 862, 865 Atkins V. Barwick 530, 533, 668 V. Tredgold . 301 Atkinson v. Bell . . 618, 624 V. Brindall . 534 Atkinson v. Mackreth . . 305 V. Stephens ... 73 Atlas, The . . . 56, 57, 58, 933 Attorney-General v. Burgess . 306 V. Stannyforth 306 V. Sillem . 869 of Jamaica v. Manderson Attwood V. Maude Atty V. Lindo Aubert v. Walsh Audley's, Lord, Case V. Duff Ault V. Goodrich Austen v. Boys V. Craven Austin, Ex parte Australia, The Avery v. Bowden 18, 20 . 380 . 170 . 230 . 652 . 232 301, 350, 384, 385 358, 362 614, 621 . 460 74, 75 . 811 Back V. Gooch . . . 558, 560 Backhouse v. Harrison . . 732 Badger v. Shaw . Baglehole, Ex parte Bagshaw v. Parker Baigorry, The Bailey, Ex parte . V. Culverwell V. Ford Bain v. Whitehaven Railway Co. Bainbridge v. Neilson Baird v. Planque Baker v. Blakes . V. Charlton V. Gray Ball V. Dunsterville Ballam v. Price . Ballentine v. Golding Balmain v. Shore Balm« V. Hutton . Baltazzi v. Ryder Bamford v. Baron Bank of Australasia v. Nias Bengal v. Fagan V. Macleod England, Ex parte Scotland v. Christie Bankhead, In re Banks, Ex parte V. Gibson Bannatyne v. Barrington Banuerman v. White 'Barber v. Backhouse V. Barber . V. Lamb . V. Richards Barclay, Ex parte V. Cousins V. Lucas V. Stirling 457 808 378 884 651 641 377 279 172 348, 349 . 184 . 294 . 625 . 307 . 355 273, 274 336, 356 . 559 882, 895, 900 . 560 . 282 . 732 V32 400, 430, 433 . 22 . 497 429, 430 . 358 . 263 . 626 . 304 . 384 . 282 . 728 459, 467 . 170 . 370 123, 170, 180, 191 NAMES OF ENGLISH CASES CITED. XI Barfoot v. Goodall Barhurst v. Clinkard Baring v. Day V. Dix Barker v. Blakes . V. Goodair V. Janson V. M'Andrew V. Sterne . Barkworth, Ex parte Barling v. Bishopp Barlow, Ex parte Earned, Ex parte Barnes v. Freeland Barnett, Ex parte 458, V. Lambert Barnewall, Ex parte Barnwall, Ex parte Barrick v. Buba . Barrow, Ex parte 336, V. Bell . V. Coles . Barry v. Nesham . Bartlett v. Bartlett Bartley v. Hodges Barton v. Boddington V. Williams Bartram v. Farebrother V. Payne Bass's Case . Bate, Ex parte V. Robins . Batten, Ex parte . V. The Queen Battier, Ex parte Battley v. Lewis . Batty V. Hill Bauerman, Ex parte Baxter v. Brown . V. Newman V. Pritchard V. West Baylis v. Dineley Bazett V. iiejei . Beak v. Beak Beale v. Gaddick V. Mouls Beard v. Webb Beatson v. Haworth Beaumont v. Meredith Beaver, The Beckett v. MacOarthy Beckham v. Drake Beckwith v. Corral V. Sydebotham Bedford v. Brntton V. Deakin Beech ». Eyre Behn v. Burness . Beilby, Ex parte . Belcher, Ex parte 351 331 696 333, 311, 380 . 177 373, 382 . 214 . 123 . 263 . 503 . 561 . 504 . 423 . 668 473, 477, 478 . 350 . 430 . 413 811, 813 372, 400, 411 466, 504 626, 673 . 344 468, 472, 488 274 657 294 668 464 571 416, 435 342, 381 . 501 . 945 . 560 . 349 . 589 . 423 . 355 . 338 547, 556 . 376 . 337 . 256 . 381 25, 300 . 350 . 337 . 123 . 377 . 126 . 247 . 303 . 731 . 135 . 363 . 354 . 334 . 120 431, 432 . 460 Belcher o. Bellamy V. Campbell V. Capper V. Jones V. Oldfield V. Prittie Bell, Ex parte ■u. Bromfield V. Buller V. Carstairs ■i;. Nevin V. Nixon V. Phyn D. Reid V. Simpson Bella Giudita, The Benedict, The . 456, 492 458, 473, oOl . 695 . 539, 541 . 557 -634, 537, 541 . 490 . 137, 138 . 805 . 136, 137 373 . 158, 160 • 356 . 805 545, 551, 554 . 794, 803 . 944 Bcnham v. Mornington (Earl of) 259, 282 Benjamin v. Andrews Bennett v. Johnson Benson, Ex parte V. Chapman . 716 . 700 . 433 65, 71, 177, 179, 180, 187 70, 72 . 355 . 502 429, 431, 459 . 360 . 307 . 117, 128 . 661, 674 . 559 . 711 . 378 69 875, 883, 885 . 836 429, 430, 431 . 302 . 541, 546 . 697 127, 129, 133 . 653 . 430 . • 255 . 342, 479 534, 536, 537, 540 651, 653, 667, 668 73, 83, 90, 101, 102 Birley, Ex parte. . . . 424 V. Gladstone . . 691, 695 Bishop V. Church . . .12 II. Crawshay . . . 548 V. Jersey (Countess of) 302, 306 V. Pentland . 116, 119, 129 ■v. Ware . ; . .691 Bittlestone v. Cooke . 548, 553, 555 Blaauwpot v. De Costa . . 696 Black V. Mallalue . . .360 V. Duncan t>. Hadfield Bent V. Puller Bentley, Ex parte V. Craren Berkeley v. Hardy Bermon v. Woodbridge Berndtsou v. Strang Berney v. Davison Bertrand v. Davies Besch V. Prolich . Betsey, The The, Murphy Betsy, The, Kinsman Bevan, Ex parte . V. Lewis . V. Nunn . V. Waters Biccard v. Shepherd Biddlecombe v. Bond Bigg,' Ex parte Biggs V. Lawrence Bignold, Ex parte Bills V. Smith Bird V. Brown Birkley v. Presgrave NAMES OF ENGLISH CASES CITED. 11 Blackburne v. Thompson . . 803 Blackenhageu v. London Assur- ance Company Blackiston, The . Blackwell v. Crabb Blair v. Bromley . Blake v. Nicholson Blakeney v. Dnfanr Blakey v. Dinsdale V. Dixon . Blanchard v. Hill Bland, Ex parte . Bligh V. Brent ii. Dayies' . Blisset V. Daniel . Blofeld V. Payne . Bloss V. Cutting . Bloxam v. Sanders Bloxham v. Pell . Boardman, Sx parte V. Sill Bock V. Gorrissen Boddam v. Ryley Bodenham v. Purchas Boedes Lust, The Bohtlingk v. Inglas Bois V. Cranfield . Bolitho, Ex parte BoliTar, The Bolland v. Bygrave Bolton, Ex parte V. Lancashire and York- shire Bailway Company 667, 668 V. Pullen . . 398, 703 Bonaparte, The . 59, 62, 66, .70, 79 Bonbonus, Ex parte . 303, 305, 413 Bond, Ex parte . . 429, 430, 431 V. Gibson . . . 293, 306 V. Gonsales . . . 125 v. Nutt . . 125, 221, 225 V. Pittard . . 340, 344, 348 Bondrett v. Hentigg . , . 161 Bone V. Pollard . . . .356 Bonfield v. Smith . . - 348 Bonita, The ... 62, 74 Bonser v. Cox . . . .433 Booth V. Gair . . . 103, 161 Bosanquet, Ex parte . . . 308 V. Dudman . . 703 V. Wray . . 21, 24 Boswell V. Eilborn . . .621 V. Smith . . .369 Bothlink v. Scheider . . .657 Bottomley v. Bovill . 122, 123, 293 V. Nuttall . . .302 Boncher ». Lawson . . . 256 iBonillon B. Lnpton . . . 127 Boalnois v. Peake . . . 574 Boulton, Ex parte ; re Sketchley 474 V. Dobree . . .812 125 . 911 . 573 . 304 681, 696 367, 368 . 659 . 693 . 580 . 551 . 356 . 707 . 375 569, 570 . 4, 21 . 670 . 344 . 422 700, 711 701, 704 . 343 ^, 25, 27 . 929 648, 653, 661, 669 . 3, 18 2^4, 303, 413 . 868. . 703 431, 432 Bonrdillon v. Roche . . • 305 Bonrne, Ex parte . . • 558 V. Dodson . . ■ 618 V. Freeth . . • 309 Bousfield V. Barnes . . . 218 Boussmaker, Ex parte . . 812, 930 BoTill V. Hammond . . . 362 Bowden, Ex parte . . . 435 Bowen v. Bramege . . . 720 Bower v. Harris .... 28 Bowes V. Foster . . . .722 V. Lucas .... 4 Bowker v. Burdekin . . . 559 Boyd V. Emerson . . . 302 V. Mangles . . . 471 Boydell v. M'Michael . . 459, 460 Boyfield v. Brown . . . 167 Boyson v. Coles . . . 725 V. Gibson . . . 456 Bradbury v. Dickens . . 358, 381 Bradley v. Millar . . 431, 432 Bradyll v. Ball . . . .699 Bragg V. Anderson . . . 123 Braham v. Bustard . . 573, 578 Bramwell v. Eglinton . . . 494 Brandao u. Barnett . . 701,703 Brandon v. Curling . . . 812 V. Nesbitt . . .811 Bramley v. South-Eastem Rail- way Company .... 251 Brasier v. Hudson . . . 304 Brater, In re . . . .427 Bray v. Fromont .... 336 Bremen Flugge, The, Meyer 906, 938 Brenan v. Currint . 683, 686, 700 Brett V. Marsh .... 19 Brettel v. Williams . . . 299 Brettillot v, Sandos . . . 278 Brewin v. Short .... 495 Brewster, In re . . . .487 Bridges v. Mitchell . . . 384 Brlerley ». Kendall . . . 467 Brighton Railway Company v. Pairclough . . . .625 Brimstone, The, Case . . . 211 Bristow V. Sequeville . . .259 V. Towers . , .811 V. Whitmore . . . 707 British Empire Shipping Com- pany V. Somes . 365, 698 Linen Company v. Drum- mond 236, 241, 262, 281 Broadbent v. Varley Brpadwood, Ex parte . ■V, Granara Brocklebank v. Sugrue Broders Lust, The Bromley, Re Ex parte V. Hesseltine Brooke v. Enderby 476 . 459 . 688 ITO, 180, 186 . 943 . 474 . 458 . 803 IT, 25, 351, 353 NAMES OF ENGLISH CASES CITED. Brooks V. Macdonnell . , . 696 Busk V. Dayis 612 620 658 Broom v. Broom . . 356 V. Royal Exchange Company 114, Broome, Bx parte 348 376, 426 115, 116, 117, 119 128 Broomhead, In re . 711 Butcher v. Basto . 549 550 557 Brotherston ti. Barber . . 172 Butler, Bx parte . . . 489 Brown, Bx parte 303 419 431, 504 V. Hobson . . 489 V. Bateman . . 625 u. Wildman 91 .<. De Tastet . , . 383 V. Woolcott 670 671 691 V. Gracey , . 284 Butterfield, Bx parte 419 V. Heathcote . , . 493 Butts V. Penny , 257 V. Kewley , . 502 Buxton V. Lister . , 364 V. Kidger . 293, 297 V. Snee . 48 V. Leonard 349, 351 Byfield, The, Foster 892 899 901 0. Oakshot , , . 356 Byron (Lord) v. Johnston . , 575 V. Smith . , 173, 186 V. Stapyleton . ,. 104, 105 Caldwell v. Gregory . , , 486 V. Tapscott , . 363 Callonel v. Brigga , . 606 Browne v. Freeman 573 , 578 , 583, 595 Calypso, The, Phalp , 66 V. Hare . 619 , 625, 662 Schultz , 889 V. Savage 473 , 474, 485 Speck 839 Bruce v. Hurley . . 502 Cambridge v. Anderson 158 V. Jones . 219 V. Anderton 73, 142, 145, Brutton v. Burton 307, 308 155 158 Brutus, The . 854 Cammell o. Sewell 74 185 251 Bryans v. Nix 619, 675 Campbell v. Dent 22 260 Brydges v. Branfill . 306 V. Fleming . . 543 Bryson v. Wylie 440, 441, 444, 445, V. The Mersey Dock 615 450, 453, 454 457 467, 505 V. Mullet 397 412 Buchanan v. Findlay . 501, 502 V. Steiner . , 245 281 V. Rucker, . , 237, 246 V. Thompson t 72 45G Buck V. Lee , . 471 Campion v. Colviu 691 695 V. Sbippam , . 709 Canada, The , 16S Buckley, Ex parte , . 295 Canham ti. Jones . , . 583 V. Cater . 3V7 Cannan v. Meaburu 175, 176 179 Bucknall v. Roiston , . 511 Carbis, Bx parte . 479 BuUen v. Sharp . . 347 Carlon, Ex parte . , 501 BuUer v. Christie . . 167 Carlotta, The 951 Bunney v. Poyntz 654, 667 Carolina Verhage, The . . 813 Burbridge, Bx parte 484 490, 499 Caroline, The, Kraft 862, 863, 865, Burden v. Burden 361, 381 944 V. Barkus i . , 359, 384 Carpenter, Bx parte . 427 Burfield v. Bouch . . 358 Carr v. AUat 626 Surges V. Wickham 128, 135 V. Burdiss . 552 635 Burgess v. Burgess , . 582 V. Royal Exchange Assur- V. Hately . 582, 591 ■ ance Corporation . . 161 V. Hills , 582, 590 0. Smith 363 V. Richardson . . 263 Carrick, Bx parte , 505 Burleigh ti. Stott , . 301 Carrington v. Roots 279 Burn V. Boulton . , . 24 Carrol v. Blencow 337 V. Burn . 307, 353 Oarruthers v. Gray , 137 V. Carralho , . 493 «. Payne 464, 493 624 Burnaby, Bx parte 389, 391, 393, 396 Carstairs v. Bates . 502 Burnett, Bx parte . . 423 Carter, Bx parte . 425, 426 V. Kensington . 141, 1^2 V. Boehm . 231 Burridge v. Row , . 479 V. Carlile . . . 589 Burrows v. Jemino , 251, 261 V. Home . 359 Burton, Bx parte 274, 351, 401, 472 V. Royal Bxchang 3 Assur- V. Wookey , . 360 ance Company . 110 Bury V. Allen , 380, 426 V. Toussaint . . 655 V. Bedford . . 279 V. Whalley 351 Bushell, Ex parte • . 304 Cartwright v. Cooke • 353 XIV iSTAMES OF ENGLISH CASES CITED. Case V. Davidson . . 187 Cash V. Kennion . , 264 V. Young , 548 Oaatell, Ex parte . 420, 425 Castellain o. Thompson 699 Castle, Ex parte . 470 ■u. Sworder 623 Catherina, cargo ex 782 Elizabeth, The 78& Catt V. Howard . , 350 Cattell 11. Corrall . . 560 Cawkwell, Ex parte ^ 560 Cazalet v. St. Barbe . , 174 Ceylon, The 946 947 Chambers v. Howell . 381 384 Chamberlain v. Haryey . 257 Chandler, Ex parte , 424 Change, The . 59 Chapman v. Allen, . 683, 697 V. Beach, 376 V. Beckington, . 370 1>. Benson, . 177, 180 V. Eraser, 232 Chappel V. Davidson . . 575 Charlotta, The, Dupleix, 803, 808 Elliot . , 900 Charlotte, The . 7 4, 854, 857 , Coffin 836 Caroline, The 950 Christine, The 890, 891 Sophia, The 893 Charlton v. Poulter 366, 367 dhase V Box 27 V. Goble, . 55 a, 559, 560 and Others, Assign 3es of William and Thomas Hurst, V. James and David West- more, 612, 679, 68 6, 696, 697, 700 Chavany «. Van Sommer . 374 Chavasse, Ex parte ; In re Gaze- brook . . 866, 86 8,871, 901 Cheap V. Cramond, 3C 0, 343, 355 Oheeseman, Ex parte . , 696 Cheetham «. Ward, , 355 Cheshire, The , 890 Ohidell V. Galsworthy , 626 Ghinery v. Tiall . 612 Chippendale, Ex parte . 300, 342 Ohowne v. Baylis 714 Ohristianberg, The, Vande rweyde 895 900 Christie, Ex parte . 413, 415 V. Lewis , 695 V. Secreton . , , 137 Christina, Margaretha, The 885 Christine, The, Schwartz ■. 944, 945 Ohryssys, The, Moraiti 891 Chuck, Ex parte 344 4 il, 423 486 Chunder Sein v. Administr ator of Bengal . 734 Churton v. Douglas . 357 575 Circassian, The . 887 Clapham v. Langton . . 128 Clark V. Orownshavr . . 459, 468 V. Freeman , 588 V. Leach . 362 Clarke, Ex parte . . 422 Clarke v. Clement . 355 V. Fell . . 710 V. Spence 501, 625 Olarkes, In re 416 Clarkson, Ex parte . 399, 401 Clason V. Simmonds . 121, 123 Clay, Ex parte . 417 422 V. Harrison 670 Clayton's Case . . 1, 17,27 353 Cleary v. M'Andrew 57, 80, 82 107 Clegg V, Edmonson 359 ■0. Fishwick 359, 382 V. Levy 258 Clement v. Maddick . 571, 575 Clements v. Hall . 381, 382 Clemonston v. Blessig , , 812 Clifford V. Hunter 114, 134 Clifton V. Chancellor . 715 Olio, The . 811 Close V. Waterhouse . . 706 Clowes, Ex parte 419 Clugas V. Penaluna , 255 Clyde, The . . , 166 Coates V. Rialton . 664 Goats V. Holbrook , 581 Cock V. Goodfellow 5; 1, 518 531 Cotkerell v. Barber 270 Cocking V. Eraser 162, 163 CockriU v. Sparkes . 301 Coffee V. Bryan . , 364 Cognac, The 57 , 58 Coldwell V. Gregory 411, 486 Cole V. Davies 562 Colerdere, In re . 549 Coles V. Marine Insurance C( ). . 124 CoUey V. Smith . . 302 CoUinge, Ex parte , 425 Collingwood v. Berkeley 309, 349 Collins V. Burton . 561 V. Forbes, 440, 44 1, 444, 445, 453, 500 V. Jackson 338 <;. Martin 726, 728 V. Ongly 683, 700 V. Prosser . 355 Company, The, v. Brown 572, 580 V. Oowen , 580 V. Reeves . 580 V. Walker 580, 590 Cologano. London Assurance Com- pany . ' . 143, 164, 167, 177 Colombian Insurance Company v. Ashby . . . . .97 NAMES OF ENGLISH CASES CITED. Colonial Life Assurance Company V. The ^pme and Colonial Life Assurance Company, limited 578, 583 Colt V. WooUaston Columbia, The, Weeks Columbine v. Penhall Colyill, Ex parte Comet, The, Mix . Compte de Wohronzoff, The Comtease de Frigeville, The Conferenzrath, The, Baur Condreve v. Evetts Connell, Ex parte Conner v. Bellamont Const V. Harris Constancia, The . Constantia, The . Conway v. Gray . Cook, Ex parte . V. Caldecott V. Collingridge V. Jennings V. Pritchard Oooke V. Benbow V. Lawder V. Seeley . Cookson V. Cookson Coombe, Mary, Re Coombs V. Beaumont Coope t). Eyre Cooper, Ex parte V. Bill . V. Waldegrave 411 410 . 359, 3T6 884, 890, 897 . 553 . 472, 474 890, 900, 946 . 793 . 67 . 842 . 626 426, 435 . 264 . 366 68,69 653, 865 184, 811 417, 420 547, 548 358, 384 . 82 534, 541 . 342 . 657 . 369 . 356 . 496 459, 467 . 335 400, 426, 475 . 663, 708 (Earl of) ■ 262, 267 . 714 . 499 82, 91, 99 294, 417 25 545 V. Willomatt . Copeland v. Gallant Copenhagen, The, Meining Copland, Ex parte V. Toulmin . Coppock V. Bower Oormack v. Gladstone . . 123 Cornelia, The ... . 946 Cornelius v. Harris . . . 349 , The . . . . 891 Cosio and Pineyro v. De Bernales 249, 337 Cosmopolite, The . . .810 Cosser v. Gongh . . . 536 Costa w. Scandret . . .231 Costello V. Burke ... 22 Cothay v. Fennell . . .369 Cotterill, Ex parte . . . 504 Couch V. Steel . . . .130 Courier, The, Erick . . .900 Courtenay v. WagstafF . . 344 Coventry v. Barclay . . . 361 V. Gladstone . . 666 Covington v. Roberts . . 90, 96 Cowasjee e. Thompson . 654,661, 662 Cowell 1). Simpson 612, 684, 709, 710 Cowie V. Barber . . .230 Cowper V. Andrews . . 684, 697 D.Green . . .709 Cox V. Hickman 293, 343, 344, 345, 347 Coxe V. Harden .... 659 Cramlington v. Evans . . 728 Crane v. London Dock Company 717 Craven v. Ryder .... 662 Crawford v. Stirling . . .299 Crawshay v. Collins 11, 316, 372, 373, 375, 380, 381, 383 V. Eades 638, 641, 667, 668 V. Homfray . . 612, 700 V. Maule 310, 334, 336, 362, 364, 380, 384 V. Thompson . . 569 Cremidii). Powell 892, 893, 899, 937, 939 . 435 . 431 . 27 563, 568 . 424 . 732 534, 536 . 280 358 Crinsoz, Ex parte Crisp, Ex parte V. Bluok Croft V. Day Crofts, Ex parte Crook V. Janis Crosby v. Crouch V. Wadsworth Cross V, Cheshire . . . 364 Crowder, Ex parte . . . 410 Crowfoot V. Gurney . . . 557 Crowley v. Cohen . . . 214 Croxon v. Moss .... 728 Cruickshanks v. Rose ... 22 Crutwell V. Lye .... 575 CuUwick V. Swindell . . .459 Cuming v. Brown . . . 672 Cumming t). Baily . . 513,546 V. Prescott . . . 484 Cunard v. Hyde .... 93 CunlifiFe v. Harrison . . 622 Currie v. Anderson . . .619 Curson's Case . . . .511 Curtis V. Auber .... 625 Cust, Ex parte ; Fordyce's Case, . 424 Custance v. Bradshaw . . . 356 Cynthia, The .... 59 Dacie v. John Da Costa v. Edmunds V. Newnham D'Aguila V. Lambert D'Aguilar o. Tobin Dakin v. Oxley Dale, Ex parte Dalgleish v. Brooke V. Davidson, Dance v. Girdler . 381 . 92 86, 104, 177, 185, 215 647, 648 . 125. . ig'O 457, 489 . 232 . 107 . 370 Danckebaar Africaan, The, Smit 944 XVI NAMES OP ENGLISH CASES CITED. 4, 5, 6, . 557 . 457 . 811 . 805 . 630 470, 489 435 487 . 354 . 426 . 358 . 420 . 368 . 703 . 654 . 534 . 167 14, 24 . 137 , 21 , 582 , 173 , 681 . 307 • 376 . 282 77, 128, 176 366 11 •) Dangerfield v. Thomas Daniels, Re ; Ex parte Ashley Dankbarheit, The Danous, The Danube Company v. Zenos Darby v. Smith . Davenport, Ex parte David V. Ellice Davidson, Ex parte Davies v. Hodgson Davis, Ex parte . ■u, Amer ■I/. BdVsher K. Reynolds Davison v. Robinson . Davy V. Milford . Dawe V. Holdsworth Dawson v. Atty . V. Remnant Day V. Binning Dean v. Hornby . Deaze, Ex parte . Debbs, Re . De Berenger v. Hammell De Oosse Bressac v. Rathbone De Cuadra v. Swann Deeks v. Stanhope Deergarden, The . Deeze, Ex parte . De Gaillon v. D'Aigle De Gols V. Ward . Deguilder v. Depeister Delaney v. Stoddart De La Chaumette v. Bank of Eng- land De la Vega v. Vianna 236, 241 277, 281 Delegal v. Naylor . . . 270 Delia Valle v. York Building Com- pany .... 237, 245 Delondre i». Shaw De Luneville v. Phillipi Dent V. Turpin Denton v. Rodie . De Ribeyre (La Marq, clay . De Tastet, Ex parte V. Bordenave V. Carroll V. Walljer Devas v. Venables Devaux v. J'Anson Devaynes v. Noble Case) •Devon v. Watts . De Wiitz v. Hendricks Diana, The . Dickinson v. Valpy Diligentia, The . Dilworth, Re Dirks V. Richards de) V, 791 703 337 512 58 125 263 262, 581, 585 . 812 . 579 . 303 Bar- 292, 306 422, 536 367 536 459 548 170 (Clayton's 1, 349, 352, 386 . 557, 560 . 357 . 934 296, 309, 360 / 754 . 483 . 711 Dispatch, The Dixon V. Baldwin V. Fawcus . V. Reid V. Sadler V. Stansfield . T85 537, 662, 663, 668 . 413 . Ill "112, 120, 127, 129, 130 . 702 V. Yates 611, 642, 653, 654, 656, 671, 711 Dobson, Ex parte . 479, 484, 493 ■V. Lyall . . . ■ . 67 V. Wilson . . 95, 108 Dodgson, Ex parte . . . 426 Dodson V. Wentworth . . . 663 Doe V. Hulme . . . .306 V. Thorn . . . .732 d. Grimsby v. Ball . . 544 d. Mann v. Walters . . 640 Dolman v. Orchard . . 294, 351 Dommett v. Young . . . 176 Don D. Lippmann . 233, 239, 278 Donaldson v. Thompson . . 803 Doornhaag, The . . . .939 Douglas V. Forrest 237, 239, 246, 458 •».. Patrick . . . 300 V. Russell . . 471, 625 V. Scougall . 127, 134, 135 V. Watson . . 627, 630 Dover, Ex parte .... 462 Down V. Hulling .... 731 Downs V. Collins . . . 336, 365 Dowthorpe, The .... 67 Doyle V. Dallas . 74, 143, 173, 176 Drayson, Ex parte . . . 545 Dree Gebroeders, The . . 939 Dresser v. Bosanquet . . . 706 Drie Trienden, The, Cassena . 900 Drinkwater v. Goodwin . . 702 Driscol V. Bovil .... 124 V. Passmore . . .122 Drummond v. Drummond . . 261 The, Langdon ■ . 899 Dry ». Boswell . . . 340, 343 V. Davy .... 370 Dudgeon v. O'Connell . . . 308 ^ Duff V. Bast India Company . 304 V. Mackenzie . . 168, 169 Duffell «. Wilson . . . . 231 Duke of'Bedford, The ... 59 Dumpor's Case . . . 603, 608 Duncan v. Benson . . 70 72 V. Cannan . . . 263 V. Chamberlayn . . 477 t. Lowndes . . 287, 299 V. M'Calmout ... 67 Dungannon (Earl of) v. Hurkell . 270 Dunlop,.Ex parte . . . 415 Dunstable's, The Prior of. Case . 716 Duranty v. Hart . . 62, 72, 264 Dutton V. Morrison 372, 373, 382, 417, 418, 545, 558 559 NAMES OF ENGLISH CASES CITED. xvu Dyke v. Brewer . Dyson v. Rowcroft Dyster, Ex parte . Eajrle, The, Weeks Eckhart v. Wilson Eddie v. Davidson Edelsten v. Edelsten 569, . 293 . 144, lt)2 411,485,486 . 844 . 557 . 3:n 574, 589, 590, 591 . 586 . 117 728, 720, 730 . 306 . 351 348, 319 855, 85H, 859 68 . 948 653, 654, -670 . 537 453, n. 458, 476, 479 . 237, 238 . 275 . 475, 478 . 709 Ex parte V. Vick . Eden «. Parkinson Edie V. East India Company Edmondson v. Davis . . Edmundson v. Blakey . V. 'fliomirson Edward, The, Bartlett 854 Oliver, The . and Mary, The Edwards v. Brewer V. Glyn . V. Harben V. Martin ■u. Prescott V, Ronald V. Scott V. Southgate . Wood, In re .Wood & Greenwood 405 Eenigheid, The . . . " 797, 804 Egan V. Threlfall . . . .731 Eicholz t). Bannister . . .718 Ekins V. East India Company 264, 268, 270 El Alessandro .... 792 Bleanora Whilelmina, Th? . . 858 Catherina, The . . 951 Elgie V. Webster . . . 363, 364 Eliza, The .... 69, 858 Ann, The, and Others . 754 V. Cornish, The . . 252, 253 Elizabeth, The . . .791, 890 Nowell . . .900 Elize, The 898 Ellershaw ti. Magniac 619,650,661 Elliott V. Brown . . . 367, 381 V. Davis . . . 296, 307 V. Wilson . . . 121, 123 Elliott «. Minto ^jord) . .261 V. Pybus ; . . .624 Ellis, Ex parte . . 425, 426, 496 !;. Hunt 639, 642, 646, 666, 667 V. Schmcech . . . 348 Ellison V. Ellison . . . 628 Ellston V. Deacon . . . 304 Elmer, Ex parte . . ■ . ' .. 464 Elmore v. Stone .... 655 Elsabe, The . . . . 783, 951 Elton, Ex parte . . . .422 V. Brogden . . . 124 B Emancipation, The . . 57, 58, 59 Emanuel, The, Sonderstrom 805, 845 Emly, Ex parte . . 302, 412, 413 V. Lye .... 302 Endeavor, The . 909, 923, 924, 925 Enderby, Ex parte . 411,485,486 Endraught, The 848, 851, 854, 855, 944 England ». Curling . . 361,364 English & Irish Church and Dul- . 347 . 168 939, 944, 945 254, 803, 811 . 376 . 356, 362 . 263 . 754 . 343 . 728, 730 . 351, 354 . 545 . 626 . 734 . 859 170, 180, 186 versify Ass. Soc. Entwistle v. Ellis Ernst Merck, The Esposito V. Bowden Essell V. Hayward Essex V. Essex Este V Smyth Etrusco, The Evans v. Coventry V. Cramlington V. Drummond V. Prolhero V, Thomas V. Trueman Evert, The, Everts Everth v. Smith Ewbunk v. Nutting ... 76 Exchange, The .... 896 Exeter, The .... 69 Expedite van Roterdam . . 794 Eyre v. Glover . . . .227 Fairclaim d. Allen v. Little . . 496 Fair Haven, The ... 70 Fairlie, Ex parte . . 414,416 Fairthorne v. Weston . 366, 367, 377 Faith V. East India Company . 691 V. Richmond . . . 295 Falcon, The . . . .946 Faldo V. Griffin . . . .351 Falk V. Fletcher . . . .616 Falkner v. Ritchie . . .173 Fanny, The, Ingraham . .951 Lawton . . 785, 854 and Elmira, The . 73, 74 Farina v. Silverlock 580, 584, 585, 591 Earn worth v. Hyde . . .166 Farr v. Newman .... 496 V. Pearce . . . 357, 358 Farrar v. Beswick ,. . 338, 341 V. DeflinnS' . . . 351 V. Hutchinson . . . 304 Favenc v. Bennett . . 29 Fawcett v. Fearne . . . 493 V. Whitehouse . . 359 Fawcus ». Sarsfield . . . 133 Fawull V. Heelis . . . .603 Fawkes v. Aikin .... 245 Fearon v. Bowers . . . 662 Featherstonhaugh v. Feowick 11, 316 359, 361, 375, 380, 384, 41 2 XVlll NAMES OF ENGLISH CASES CITED. Feise v. Aguilar . V. Parkinson ■u. Wray Fell, Ex parte Fenn v. Bittleston Fenton «. The Dublin Steam Packet Company Fenwick v. Bobinson . Fereday v. Hornderne . V. Wightwick . Fergusson v. Fyffe Fidgeon v. Sharpe Field V. Carr V. Selean Fielding v. Lee Fife V. Round Finckle v. Stacy Findlater v. Drummond Fisher v. Farrington V. Taylej- . Fisk V. Masterman Fitzgerald v. Pole Fitzmaurices, Minors Flack V. Holm Flavel V. Harrison Fleming v. Smith Fletcher v. Braddick V. Inglis V. Manning Flindt V. Crockatt V. Scott V. Waters . Flintoff, Ex parte Flintum, Ex parte Flood V. Patersou Flook V. Jones Floreat Commercium, decker Foley V. Tabor Fomin v. Oswell . Foord and others, Ex Gayner Forbes v. Aspinall ■V. Cochrane V. Cowie . V. Marshall Fordyce'^ Case ,. Forman v. Homfray Forshaw v. Ohabert Forster v. Christie V. Hale . V. Maekreth Forth V. Simpson . 212, 219 . . .232 605, 649, 650, 653, 654, 670 . 39y, 401 . 467 . 696 . 215 . 340 . 421 260, 264, 281, 300, 342 541 25 612 505 263 336 238 351 294 227 173 17, 28 278 585 160, 181, 184 696 116 459, 466 811 811 812 415 417 301 534 Fortuna, The, Anderson 891, 898, 935 Kock Koedt Bhode Tadsec The Ra 858 127 137 parte, re .. 517,557 170, 204, 211, 213, 217, 218 . 257 170, 207, 218 . 295 . , . 424 . 316, 365 . 125, 134 . 174 . 411 . 296 . 700 Fortuna, The, Verissimo . ■ 943 Foss, Ex parte . . 45j8, 465, 488 Foster «)..Allanson . . . 363 V. Alvez .... 135 V. Cockerell . . .459 V. Frampton . 646, 666, 667 V. Hodgson . . • 384 V. Pearson . . . 732 ^. Steele . . . .135 », Wilmer. . . .110 Fowler v. English & Scottish Ma- rine Insurance Co. . 174 V. Kymer . . .661 Fox V. Clifton . 309, 348, 349, 350 V. Fisher .... 496 V. Hanbury 293, 372, 373, 380, 384 The .... V 883 Fragano v. Long .... 616 Frankland v. M-Gusty . . . 305 Franklin v. Brownlow (Lord) . 383 V. Hosier The Franklyn, Ex parte Franks v. Wearer Franciska, The . Eraser v. Birch i;. Burgess V. Kershaw V. Levy V. Sinclair ' . Frau Margaretha, The . Frayes v. Worms . Frazer v. Hatton . Frederick Molke, The, Boysen 696 . 858, 949 . 422 573, 580, 581 885, 886, 898 22 711 383 548 246 854, 855 105, 282 . 101 856, 873, 884,885, 894, 937 . 435 . 798 . 380 402, 414, 415 . 651 Co. . 179, 252 . 121 . 363 504 Free, Ex parte Freeden, The Freeland v. Stansfield Freeman, Ex parte V. Birch V. East India V. Taylor French v. Styring Frere, Ex parte . Preshney v. Carrick 459, 461, 467, 505 797 933 900 902 Friendship, The Frith V. Forbes . Fromont v. Coupland Frost V. Moulton . Fry, Ex parte Fuentes v. Montis Fuller, Ex parte . Furneaux v. Bradley Furnival ». Weston Furtado v. Rodgers Furze v. Sharwood Gabriel v. Evill . Gairdner v. Senhouse Galam, Cargo Ex Galbraith v. Cunningham 861 . 705 . 363 . 362 414, 415 . 734 . 434 74, 175 . 308 811, 930 . 295 344, 350 . 123 . 80 . 244 NAMES OP ENGLISH CASES CITED. Gale V. Burnell . 625 Glenny ». Smith . , 574 V. Lewia 477 Glyn V. Baker . 728 V. Machell . 230 v. Johnson . 239, 244 Gamba v. Le Mesnrier 811 Goddard v. Cox 4, 6, 12 . 14 , 21, 21 ,24 Garbett v. Veale 355 V. Hodges 24, 236 Gardiner v. Coleman 701 V. Ingram 302 V. Houghton 274 V. Swintou . 237, 238 Gardner v. Lachlan 471 Godfrey e. Browning . . 336 V. Rowe 470 V. TurnbuU . 350 V. Salvador 14, 145, 159, Godson V. Good . , 386 160 176 Godta V. Rose 615 Gardom, Ex parte 299 300 Goede Hoop, The, Pietera 810, 942 Garland, Ex parte 419 Gold V. Canham . , 367 Garrett v, Handley , 369 Goldamid, Ex parte , 433 Gauntlet, The 60, 63, 64 V. Cazenove , 433 Gawan, Ex parte . , 491 V. Gillies 161, 177 Geake v. Jackson 25 Good V. Cheeaman 353 Geavea, Ex parte 491 Goodall 0. Skelton 598 657 Geddes v. Wallace 343 361 Goode V. Harriaon 337, 348 Gellar, Ex parte . . 293, 340 423 ». Langley 624 General Hamilton, The 894 Goodfellow'a, Dr., Case . 511 George v. Claggett 369 Goodman, Ex parte . 435 Georgiana, The . , 947 II. Whitcomb 360, 367, 376, Gernon v. Royal Exchange Assur- 377 384 ance Company 179 182 Goodricke v. Taylor . ■550 551 558 Gertruyda, The, De Vriea 929 Goodtitle v. Woodward , 306 Geyer v. Aguilar . 238 Gordon u. Bogle . , 238 Gibbs V. Fremont . 265 267 V. Eaat India Company u. Gray .80, 81 445, n., 450, 453, n. Gibson, Ex par.te , , 401 V. Ellis . 304 369 371 V. Boutts 536 V. Howdeu . 339 II. Bruce , , •542 ti. Morley . 125 V. Carruthers . 647 Gore V. Gardiner . 60, 64 V. Lupton , 335 Gosling V. Birnie 627 639 642 u. Muskett . 542 Gosa V. Dufresnoy 428 V. Overbury . ^ , 476 V. Withers . 150 174 V. Service 866 Gough V. Davies . , , 354 V. Small .' 130 132 i;. Everard . 457 V. Stewart 244 Gould V. Oliver . , , 92 Giles V. Perkins . 703 Gonlding, Ex parte . 303 Gilkinson v. Middleton 694 Gout ti. Aleplogu . . 588 Gill, Ex parte 427 Gouthwaite v. Duckworth . 302 V. Cubitt ". 731 732 Grace ». Smith . . 344 Gillard v. Brittan 671 Graham v. Barria , . 117 Gillespie v. Hamilton . . 373 V. Chapman 547, 548, 549, 553, Gillett V. Hill , 627 558 Gillow V. Lillie . , 296 Ex parte . 414 Gilmour v. Supple . 623 t). Furber 494 505 Gilpin V. Enderbey 340 V. Hope . 350 351 Gimaon v. Woodfall . , 714 V. Robertson • . 383 Gist V. Mason 800 811 G'rainge v. Warner , 458 Gladstanes v. Royal Exchange As- Grainger v. Martin . 176 surance . 232 Grant ii. Mills . 401 Gladstone v. Birley 691 V. Vaughan . 726 Glascolt V. Lang 62, 67 Gratitudine, The 30, 55, 63, 94 253 Glasgow, The 73, 74 Gray, Ex parte . 560 Glaaaington v. Thwaites 359,-360 366 V. Chiswell 351 Gledstanes v. Allen 691, 710 V. Palmera . . 300 Glemnanna, The 59 Grazebrook, Ex parte . . 426 Glennie v. London Aaaurance Great Indian Peninsula Railway [> Company . 144, 149, 167 Company v. Saunders 103, 161, 166 XX NAMES OP ENGLISH CASES CITED. Greatrex v. Greatrex . 366 Hallen v. Runder , . 459 Greaves, -Ex parte ; In re Strahan 497 Hallett V. Wigram , 72, 95 V. Hopke . 623 Hambridge v. De la Croupe . 302 Green v. Barrett . . 359 , 376 Hamburg, Cargo Ex 62 V. Beasley 343 Hamil v. Stokes . . 426 V. Deakin . . 303 , 304 Hamilton v. Bell . 461, 462 , 463, 468 V. Farmer 681 , 686, 703 , 706 V. Meodes . 150 , 172, 174 V. Folgham , 584 V. Sheddon . 122, 123 o. Ingam . 476 Hammersly v. Knowly 3 . 4, 20 V. Koyal Exchange Assur- Hammond v. Anderson 603, 605, 609, ance Company 154, 176, 180, 623 , 658, 667 186 V. Reid , . 123 V. Sichel . . 661 Hammonds v. Barclay , . 686 V. Waring 380 Hamper, Ex parte . 339 , 340, 344 V. Young . . 121 Hams, Re . . 468 Greening v. Clark 465 Hankey v. Garret 392, 396 Greenslade v. Dower . 294 926 Hanson v. Meyer 600, 610, 619, 620, Greenwood, Ex parte . 464 622 658, 667 V. Churchill 559 Harding v. Glover . 368, 381 Gregg V. Wells . , 734 Hardman v. Booth , . 723 Gregory v. Christie 123 Hare, Ex parte • . , 412, 487 Grell V. Digby . 263 V. Travis . 121 Grey v. Grant 244 Hargraves, Ex parte '. 419 420, 425 Griefswald, The . , 282 Harman v. Anderson 656, 657 Grigg V. Cocks . 21 V. Fishar 394, 518, 525, 533, Grlswold V. Waddington , 373- 551, 668 Groom, Ex parte 435 V. Johnson . 296 304, 305 Groux's Soap Company v .0 ooper 371 Harmer v. Kingston . 812 Grove, Ex parte . . 434 Harmqny, The, Bool , . 938 Groves v. Gordon 239 244 Harrington v. Churchward . . 344 Grugeon v. Gerrard 545 V. Halkeld . . 125 Guepratte v. Young 250, 251 259 Harris, Ex parte . 293, 423 Guibert v. Readshaw . 125 V. Carter . . 101 Gurney, Ex parte 400, 414 487 V. Rickett 537, 555 V. Behrend 650, 661, 671 ». Shaw . . . 716 v'. Evans 348 V. Watson . 101 Gnrr v. Rutton . , 468 Harrison, Ex parte . 458, 484 Gustaf, The , 697 V. Armitage . 365 Gute Gesellschaft, The, Michael . 854 V. Douglas . 134 Gwyer, Re . • 504 V. Jackson V. Tennant . 294, 305, 307 -376, 377 Haabet, The . 859, 861 Hart ». Alexander 351, 353, 354 Haasum and Ernst, The .' 841 V. Bush . . 619 Habershon v. Blurton . 372 V. Clarke . 382 Hagedorn v. Bell 803 Hartfort v. Jones . 696 Hague V. RoUeston .' 527, 532 Hartley i>. Buggin . 121 Haig V. De la Gout . 212, 214 V. Hitchcock . , . 698 V. Wallace ■ . 658, 659 V. Ponsonby . . 101 Haille v. Smith . 654 Hartop V. Hoare . . 717 Hale V. Alnntt 537, 551, 559 Hartshorn v. Slodden . . 540 Hale (Rev. John) v. Hale (George) 368 Harvey v. Archbold , . 268 V. Rawson . 619 o. Bignold . 366 V, Saloon Omnibus C ompany 547 V. Crickett 373, 380, 383 Halfhide «. Fenning . , 365 Harwood v Bartlett . , 548, 562 Hall, Ex parte . 423, 427 V. Edwards . , . 305 V. Bainbridge . 307 Haselinton «. Gill , . 470 «. Brown 122 Hasleham v. Young . . 299- V. Burrows . 572, 573, 279 Hassel v. Simpson . 557 V. Hall 358, 366, 373 Hassels «. Simpson . 549, 553 11. Janson . 99 Haswell v. Hunt . , . 667 .,. Wood . .£ ,21 Hatton V. Royle . . . 302 NAMES OF ENGLISH CASES CITED. Havard, Ex parte . . .29 Havelock v. Rockwood . . 185 Hawes v. Watson 627, 638, 642, (i58 Hawken v. Bourne . . 349, 350 Hawkes «. Dunn . . . 650 Hawkins v. Cardy . . . 602 V. Hawking . . 367, 400 Hawkshaw v. Parkins . . 304, 307 Hawtayne v. Bourne . . . 300 Hay, Ex parte . . . 416, 429 V. Fairbairn .... 457 Hayman v. Melton . . 74, 75 Head, Re, Ex parte Cobbold . 468 Heap ». Dobson . . . . 335 Heart of Oak, The ... 58 Heath V. Hall . . . .435 V. Percival V. Sansom . 389, 391, 396 304, 350, 351, 372, 380 Heathcoate, Ex parte Heathcote v. Hulme Heathorn v. Darling Heaton, Ex parte Hector, The, Smith Hedburgh v. Pearson Hedley v. Bainbridge Heindrick and Jacob, The Heinekey v. Earle Helen, The . Helena, The Helgoland, The . Henderson v. Wild Hendric and Alida, The Hendrick, The, Hansen Henekey v. Earle Henkle v. R&yal Exchange Assur ance Company Henley v. Soper . Henly v Walsh . Hennessey, In Re Henniker v. Wigg Henrick and Maria, The . 459, 475 . 381 60, 64 . 431 . 837 . 165, 167 . 296 . 878 630, 667, 668 . 867, 901 . 946 . 69, 67, 68 . -304 . 864 . 811 . 619 122, Henry v. Staniforth Hentig v. Staniforth . Hercy v. Birch Hernaman, Ex parte . Hero, The Hersey, The , Herstelder, The, De Koe Hervey v. Liddiard Heselton v. AUnutt Heshara, *;x parte Hesketh v. Blanchard . Heslop, Ex parte V. Baker . "Hewison v. Guthrie- . Heyhoe v. Burge Heyman v. Flewker Eeyward's Case . V. Lomax . 228 . ' 363 . 699 477, 479, 484, 485 . 25 882, 889, 946, 954 . 230 . 230 . 364 . 415 54, 58, 64, 66 68 .944 . 464 . 122, 126 . 420,425 . • . 339 461, 504, 505 . 604, 505 . 709 . 334 . 734 . 613, 616 3 Hibbert v. Martin Hibernian Bank, Ex parte Hichens v Congreve . Hickie v. Rodocanachi Hickman v. Cox . Hicks V. Palington Higginbottom, Re / . Higgins, Ex parte V. Brethertou V. Scott . Higgons V. Burton Hill, Ex parte V. Farnell . V. King ■ V. Patten . 118 . 536 . 359 80, 187, 190 . 346 94 . 422 . 415 . 691 . 711 . 725 423, 430, 436 . 548 . 342 104 Hills V. London Assurance Co. . 167 Hinde v. Whitehouse 598, 612, 619, 628 Hinds, Ex parte . . 411, 425, 431 Hine v. Lart .... 580 Hinton, Ex parte • . . . 433 Hirschfield v. Smith . . .264 Hitchcock, Ex parte . . . 414 Hitchcox V. Sedgwick . . 632 Hitchman v. Walton . . . 459 Hoare v. Dawes .... 335 V. Dresser . 611, 673, 705 Hobbs V. Henning . . . 855 Hobson V. Thelluson . . . 557 Hodenpyl v. Vingerhoede . . 300 Hodgkinson, Ex parte 307, 414, 416, 423 Hodgson, Ex parte . . . 417 V. Blackiston 141, 142, 145, 160 ■0. Le Bret . . .655 V. Loy . 605, 653, 670 Hoffman v. Marshall . . .141 Hoffnung, The . . . 885-, 899 Hogg ». Horner .... 123 V. Kirby . . 575, 580, 583 V. Skeen .... 304 Hoggard v. Mackenzie . . 464 Holderness v. CoUinson . 690, 707 V. Rankin . . 464 V. Shackels . . 421 Holdsworth v. Wise 116, 119, 128, 173 HolUnsworth v. Brodrick . 115, 117 Hollondti. Teed ... 25, 370 HoUoway v. Holloway 568, 573, 581, 582, 588 253, 254, 255 .• 337 . 363 . 561 . 625 . 372 . 665 . 366 787, 802, 803, 805, 882, 933, 937 Holraan v. Johnson Holmes v. Blogg V. Higgins ■u. Penney Holroyd v. Marshall V. Wyatt Hoist V. Pownal . Hood V. Aston Hoop, The, Cornelius NAMES OF ENGLISH CASES CITED Hooper v. Gumm Hooper v. Smith Hope, The . V. Oust V, Hayley . V. Meek Horatio, The «. Horn V. Baker Hornhlower v. Proud Horncastle v. Farraa . V. Ha'worth V. Suart Horneyer v. Lushington Hornsby v. Miller Horsey's Case Horsley ». Rush . Horwood, Ex parte V. Smith Hostel's, The, Case Houghton ». Houghton V, Matthews Houlton's Case How V. Kirchner . Howard v. Henriques . ■II. Jemmet Howell V. Brodie Howson V. Hancock Hubbard, Ex parte V. Bagshaw . Huber v. Steiner Hucks V. Thornton Huddleson's Case Hudson V, Granger ii. Harrison . 253 . 546, 557 . 864, 865 . 303 . 625, 626 . 560 . 947 412, 457, 459, 468 . 458, 502 . 695 . 232 . 169 137, 227 464, 467 . 409 . 307 . 499 . 719 . 683 . 356 686, 701 . 349 692, 694 . 574 . 496 . 350 . 230 . 424 459, 460 241, 243, 280, 282 . 117, 135 . 332 691, 179, 181, 702 183, 185 214 376 656 459 458 337 671 306 V. Majoribanks Hue ». Richards . Hughes, Re Hughes' Trust, Re Hulme, Ex parte . V. Tenant Humberston, Re . Hume V. Bolland . Humphrey v. Union Insurance Company . . . .215 Hunt «. Maniere . . . .591 V. Mortimer . , 540, 557 V, Royal Exchange Assur- ance Company 144, 145, 149, 179, 181. 306 Hunter, Ex parte 29, 302, 412, 415, 427 !). Beale . V. Leathley V. Parker V. Potts . V. Prinsep V, Wright V. Wykes ' Huntley, The Huntress, The Hurry v. Mangles 669 123 73, 74, 176, 308 273 170 232 339 58 951 655 Hurry v. Royal Exchange Assur- ance Company . • • 214 Hurting Hane, The, Dahl . . .900 V. Union Insurance Com- pany .... 77 Husbands, Ex parte . . 431, 433 Hussey v. Christie . . 697, 707 Hutcheson v. Smith . . . \342 Hutchings v. Numes . . . 651 Hutchinson v. Bell . . .21 ■u. Heyworth . . 557 Hutton V. Bragg . . 695, 700, 707 V. Cruttwell . . 554, 555 V. Eyre . . . 355j 364 Hyat V. Hare . . . .293 Ida, The, Steen . . . .946 Idle V. Royal Exchange Assurance Company . 74, 155, 176, 180 Imbert, Ex parte . . .18 Imina, The, Bauman Vroom 840, 855 Imlay v. EUefsen . . .278 Immanuel, The, Eysenberg 814, 842, 843, 846, 856, 933, 937 Imrie v. Castrique . . 253, 282 India, The 56 Indian Chief, The, Skinner 803, 804, 940 Industrie, The .... 943 Inglis V. Usherwood 648, 653, 661, 667 V. Vaux .... 123 Ingllss V. Grant .... 545 Innes v. Dunlop .... 277 V. Stephenson . . . 355 Ionian Ships, The . . 803, 805 lonides v. Universal Marine In- surance Company . ' . . 167 Ireland v. Thomson . . 73, 75 Irons V. Smallpiece . ■ \ ■ 628 Irving «;. Manning . . Il58, 212 V. Motly .... 722 V. Richardson . . .219 Jacaud v. French . 304, Jackson, Ex parte 412, 414, V. Cummins . V. Jackson ■u. Irviu . ' . V. Nichol 639, 654, V. Sedgwick V. Stopherd V. Wooley Jacob V. Shepherd . 6 13 ,The . . Jacobs V. Latonr . Jacobus Johannes, The, Miller James v. Catherwood V. Child . . ', V. Griffin . . 653, James Cook, The Jan Frederick, The 306, 371 417,542 697, 700 . 356 464, 466 363, 664, 665, 666 361,.383' . 363 . 301 518, 560 . 55 698, 709 . 941 . 258' . 24 664, 668 890, 896 . 944 NAMES OF ENGLISH CASES CITED. XXIU Jane, The .... 59, 126 Janet Wilson, The . . 68, 69 Janson, Ex parte , . . 423 424 Jardine v. Leathley . . . 185 Jarman v. Woolloton 441,444,445,453, 470 Jauncey v. Knowles Jeanne Marie, The, Kolle Jeffery v. M'Taggart Jenkins v. Blizard V. Heycock V. Morris V. Usborne Jenkyn v. Vaughan Jennings, Ex parte Re V. Baddeley Jerusha, The, Giles Jervis v. White Jeune Voyageur, The Jewan v. Whitworth Joachim d'Aloa, The Joannes, The Job V, Langton . 376 . 886, 898 . 277 . 351 . 133 . 294 650, 670, 671 . 561 . 411 Starkey . 485 . 377 . 83li . 366 . 950 . 734 . 911 . . .850 90, 99, 102 Johan Pieter, The, Schwartz . 811 Johann Christoph, The, Bohss 937, 945 Johanna Eraelie, Ontjes, The 932, 937, 945, 952 Maria, The John, The . Johns V. Simons Johnson, Ex parte V. Evans V. f esemeyer V. Greaves V. Helleley .,. Hill . V. Peck V. Sheddou Jombart v. Woollett Jonathan Goodhue, Th Jones, Ex parte . ■ V. Oliffe V. Dwyer . ■V. Garcia del Kio V. Gibbons V. Jones V. Maund . V. Noy ■u. Pearle . V. Peppercorne V. Tarleton V. Thurloe V. Welch ' . V. Yates V. Young . Jonge Andreas, The Frederick, The Hermanns, The Klassiua, Bol 892 69 61 29 355 537, 538, 550, 555 803 357 688 306 199, 211, 213 . 503 56, 68 . 432 , 710 466 , 257 458, 470, 471 661, 667 25, 27, 353 . 377 683, 689 704, 705 . 711 . 689 . 378 303, 304 . 371 . 850 . 850 . 854 937, 940 Jonge Margaretha, The, Klausen 845, 937 Petronella, The . . .889 Pieter, The . . .806 Thomas, The . 835 n., 843 Tobias, The, Hilken 853, 857, 858 Josephine, The .... 890 The, Fish . . .946 Joy ffl. Campbell 401, 411, 446, 456, 486, V 489, 497, 506 Joyce V. Swann . . . 624, 625 Judson V. Etberidge . . . 697 Juffrouw Catharina, The, Hansen 939 Louis Margaretha, The 791 Magdalena . . .- 843 Maria Schroeder, The 800, 885, 892, 894 Wobetha, The . . 859 Juliana, The, Carstens Jungmichael, Ex parte Juno, The Jurgan v. Logan . Justin V. Ballam . Kay V. Pienne (Duchesse de) Keane v. Boycott . Kearney v. King . Keating v. Marsh Keble v. Thompson Kedie, Ex parte . Keene v. Harris . Kellner v. Le Mesurier Kelshaw v. Jukes Kemp V. Canavan V. Corington V. Halliday Kendall, Ex parte Kenpedy, Ex parte V. Lee . Kennersley Castle, The Kensington, Ex parte o. Inglis . Kepler, The Ker V. Home Kern v. Deslandes Kershaw v. Matthews . V. Ogden Kettle V. Hammond Kewley v. Ryan . Key V. Cytesworth Keyser v. Suse . 840 . . 489 892, 899 . 850 33, 48 . 337 . 337 . 262 . 306 . 431 . 416 . 575 232, 811 . 293 . 671 . 354 104, 161, 166 9, 11, 386, 423 . 423 . 357 58, 59, 66 370, 423, 424 . 811 . 58 . 245 . 710 . 368 . 623 . 557 121, 122 661, 673 . 657 Kidston v. Empire Marine Insur- ance Company . Kill V. HoUister . Kilner, Ex parte Kilshaw v. Jukes . Kinahan v. Bolton King, Ex parte V. Hoare 79, 161 . 365 . 560 298, 347 571, 573 421, 426, 460 . 415 NAMES OF ENGLISH CASES CITED. King V. Manning V. Smitli V. Walker . , Tlie, V. Sankey Kingsford v. Merry Kinston v. Phelps Kinloch v. Craig . Kinnear v. Johnson V. Walmisley Kinnersley v. Mussea Kirby, Ex parte . ' V. Carr . 30G . 371 . 185 . 707 723, 724, 725 . 121 . 650, 707 . 536, 537 . 537 . 308 . 305,417 377 ■It. Marlborough (Duke of) 8, 11, 18, 21 Owners of the Scindia 126 Kirchner v. Venus Kirk-i). Blurton . Kirkman v. Shawcross Kirkwood v. Cheetham Kirwan v. Kirwan Kleinwort v. Shepard Knight V. Bowyer 602, 700 294, 295, 302 699, 700, 706 . 348 351, 353, 354 . 173 20 V. Faith 73, 160, 176, 180, 217 V. Hopper Knill V. Hooper . Knott V. Morgan Knowles v, Horsfall Koebel v. Saunders Kruger v. Wilcox Kulberg, Re 604 . . . 127, 130 565, 567, 574, 580 . 461, 462 . 127 676, 686, 687, 701, 708 . 500 LaPurissima Conception 754, 946 La Virginje, Goigneau . . 938 Labouchere v. Tupper . . 386 LacaussadetJ. White . . . 230 Lackington v. Atherton . 657, 664 L'Actif 947 Lacon v Liffeu . . . 549, 553 Lacy V. McNeil . . . . . 300 V. Woolcott . . 304,' 306 Ladbroke, Ex parte . . . 435 d. Crickett ... 67 Lady Jane, The . . . 791, 800 Laforest, Ex parte . . . 433 Laidler v. Burlinson . . . 624 Laing v. Glover .... 125 Lake v. Craddock . . 356, 406 Lamb v. Attenbqrough . . 734 Lambert's Case . . , . 293 Lambert v. Liddard . . . 123 V.Robinson . . . 691 Lamond w.Davall . . . 630 Lamprell v. Billericay Union . . 22 Lancaster Canal Company, Ex parte 458,479,481,482,483 Lane, Ex parte . . . .414 V. Dixon .... 136 V. Williams ... 12 Lanfear, Ex parte . . 422, 429 Langdale, Ex parte . . . 343 Langfort v. Administratrix of Tiler 607, 628 Langhorn v. Allnutt . 232 V. Cologan . 232 Langmead's Trusts 397 Langton v. Higgins 617 V. Horton 625 Lansdowne (The Marrhioness of] V. Lansdowne (The Marquis of) 270 Lapraik v. Burrows 74, 75 Laroohe^. Oswin 123 Laurel, The '. 59, 64 Lavabra v. Wilson 123, 124 Law, Ex parte 414, 432 V. Hollingsworth 114, 116, 119, 129 135 V. Skinner . 549 Lawrence, Ex parte . 458 ■V. Sydebotham 126 Laws V. Rand 294 Lawson v. Bank of London 570, 571, 577 V. Morgan . 366 V. Weston 731 Lawther v. Belfast Harbou r Com- missioners 708 Laythoarpe v. Bryant . . 280 Le Case de mixt moneys ( Davys' Reports, p. 18) 270, 271 Le Caux «.'Eden . 87 Le Cheminant v. Allnnt 137 V. Pearson 216 Le Feuvre v. Sullivan 275 Le Louis, The, Forest 258, 784 Le Neve v. Le Neve 515 Leadley v. Evans 370 Leaf, Ex parte . . 35 1, 401, 423 V. Coles 378 Leake v. Loveday 462 ■V. Young . 556, 558 Lean v. Schutz 337 Leary v. Shout . 376 Leather Cloth Company y. j imeri- can Cloth Company '57 2, 573, 574, 679, 585, bi 6, 587 588 Leather Cloth Co. v. Hirsch field 589, 590 Lebel v. Tucker . 251 Lee, In re . 423 and Armstrong, In re 423 ■u. Bayes 714, 716 V. Beach 127 V. Griffin 624 V. Hart 547 ■t/. Hewlett . 459 V. Page 380 Leeds v. Wright . 662 Lees V. Martin .542 Leevin w. Cormac 232 Leith's Estate, In re . 711 Leroux v. Brown 279, 280 NAMES OF ENGLISH CASES CITED. Leslie v. Guthrie 458 Lubbock V. Potts . . 230 Lett V. Cowley , 638 Lucas, Ex parte . Re Gwyer 504 , 505 Leucade, The 806 V. Beach . , 363 Leuckhart v. Cooper 651, 671 , 691 V. Dorrien 656, 674, 705 Lever v. Fletcher 256 V. Nockells 692 700 Leverson v. Lane . 304 305 Luckie v. Forsyth . 380 Levy V. Pyne . 296 Lucy, The, Glover , 837 Lewis V. Langdon '. 358 575 Ludlow V. Browning . 496 V. Owen 274 Luke V. Lyde 80, 82 187 V. Rucker 192, 200 , 211, 212 , 213 Lunn V. Thornton 625, 626 Lickbarrow v. Mason 647, 648 671 Lutwidge v. Gray . 82 Liddel, Ex parte . . 432 Lyall 1). Hicks , 60 Liddiard, Ex parte , 430 Lyon u. Wei don . 493 Linden v. Sharp 54f , 550, 551 , 558 Lyons v. De Pass 716 Lingard v. Messiter 457, 461, 462, 463, 467 457, Lyth V. Ault • 354 Lingham v. Biggs 439, 450, 455, Maans v. Henderson 705 460 467 McAndrew v. Basset 575, 577 Linton v. Bartlett 527 , 529, 531 560 McAndrews v. Vaughan 144, 167 Lisette, The, Steg 864 887, 893 894 McCarthy v. Abel 180 Litt V. Cowley 641 , 643, 645 ,669 McCombil v. Davies 706 Littledale, Ex parte . 481, 493 McConnell v. Hector . 337, 803, 812 Liverpool Uarine Credit Co. v. McCormick v. Garnett 283 Hunter • , 282 McCulIoch V. Royal Bxchang B As- Livie V. Sanson . 216 surance Company 226 Lloyd Ex parte/ . 460 McEwan v. Smith 656, 674, 675 V. Ashby . , , 294 McFarlane v. Norris 280 x<. Freshfield . . 302, 303 Mclver v. Henderson . . 173 V. Guibert . tl, 264 284 V. Humble 351 Load V. Green 459, 486, 490, 492, 721, 723 McKenna v. Parkes McKibben, In re • 380 459 Lobb, Ex parte . 416 McLeod V. Schultze , 282 Lock V. Sellwood 733 McMaster v. Shoolbred 175, 184 Locke V. Prescott 704 McNair v. Coulter ■ 227 Lockyer v. OfBey 185 V. Flbming . 294 Lodge V. Dicas 354 McTurk, Ex parte 471 and Fendall, Ex parte As- Macclesfield, Mayor of. Chapman 715 signees of 391, 424, 425 Mace V. Cadell 437, 438, 442, 455, 490, V. Pritchard , 352 499 500 Loeschman v. Machin . , 714 Machell, Ex parte , 423 V. Williams . 657 Mackenzie v. Shedden . 169 Logan V. Le Mesurier 618, 622, 623 Mackrel's Case 512 514 London, &c.. Banking Company Mackrell v. Simond 170 Limited, In re 701 Mackreth v. Symons 401 711 and Provincial Law As- Maclae v. Sutherland . 295, 296 surance Company v. London and Macnamara v. D'Evereux , 257 Provincial Joint Stock Life As- Macnee v. Gorst . , ' 704 surance Company . 575, 583 Macneil u. Macneil , 245 Long V. Allen .. 228, 229 Maddick v. Marshall . 348, 349 Longman v. Pole . 306 Madgwick v. Wimble . . 368 V. Tripp , 458 Madison, The 863 864, 865 Loraine v. Thomlinson , , 228 Madonna delle Gracie, The, Co- Lord V. Colvin . 283, 488 penzia , . 808 Cochrane, The 58 ,66 Madonna D'ldra . , . 67 Loscombe v. Russell . 365 Madrazo i'. Willes 258 Louch, Ex parte 562 Magdalena Steam Navigation Lovat (Lord) v. Forbes (I ord) . 239 Company, Re . 342 Lovelace's (Lord) Case 307 Mair v. Glennie, . . 339 Lowry v: Bourdieu . 230 Majoribanks, Ex parte 465, 493 Lowthal V. Tonkins 721 Malcolm v. Scott . . . 18 Lozano v. Janson ; 173, 177 Male V. Roberts . 249 250, 251, 276 NAMES OF ENGLISH CASES CITED. Maltass v. Maltass Manchester, The, Reynolds Mann v. Forrester ■b. SchifFner Manning's Case . V. Irving V. Newnham V. Westerne Manton v. Moore . 937 . 897 . 705 701, 706 . 733 . 176 144, 178 • 3,4 445, 453 n., 545, 547, 660 Margaret, The .... 857 Margaretha, The,, Magdalena . 857 Maria, The, Jackson . . . -844 Paulsen 757, 782, 785, 864, 893, 937 Marianna, Posodillo . . . 945 Market Overt, The case of 713,716 Marner v. Banks Marqnand v. Banner Marrable, Ex parte Marryat v. Wilson Marryatts v. White Marsden v. Kaye . v. Reid . Marsh, Ex parte . V. Hutchinson V. Keating Marshal's Case Marshall, Ex parte v. Barkworth V. Colman V. Lamb V. Parker V. Watson u. Wilson Marsham v. Dutrey Martin, Ex parte . V. Crokatt V. Heathcote V. Pewtress V. Sitwell Martindale v. Martindale V. Smith Martyn v. Gray. . Mary Ann, The . Mason v. Rumsey «. Skurray Massey, Ex parte . Masson, Ex parte Master v. Kirton . Masterman, Ex parte Matchless, The, Vint Mather v. Lay Matthews, Ex parte V. Gabb V. Gibbs Maude, Ex parte ; Re Braginton Maule V. Crawshay Maxwell v. Hogg . May, Ex parte V. Chapman 715, 716 . 695 . 462 . 805 20 . 368 . 123 . 496 . 337 . 714 . 454 557, 560 . 560 367, 376 . 538 . 2U . 366 56 . 96 . 499 . 160 . 384 . 545 . 226 . 361 612, 628, 630 . 348 58, 68 . 294 . 167 . 470 . 432 366, 373, 376 472, 478, 481 . 937 504, 505 . 435 . 488 79, 80 419 . 310 . 576 . 425 . 304 77, Mayhew v. Barnes . . . 305 V. Herriott . . . 355 Mayou, Ex parte ; In re Edwards Wood and Greenwood 403, 406, 548 Mears v. Serocold . . 307 Med Good's Hjelpe, The . . 778 Medewe's Trust . ... 17, 25 Meggott V. Mills,*, 6, 7, 14, 24, 511, 522 Meinhert2hagen, Ex parte .. . 416 Melan v. Fitzjames (Duke de) 244, 261, 277, 278 Mellersh v. Keen Mellish V. Andrews 123, 154, Mellors v. Shaw . Memphis, The Mentor, 'The, Williams Mercer v. Peterson Mercurius, The . . 858 Mercury, ihe, Roberts Meredith v. Meigh Merriman v. Ward Metcalfe v. Parry V. Royal Exchange elation Meux V. Bell Mew & Thorne, Re Meyer, Ex parte . V. Gregsou V. Sharpe . Meyerstein v. Barbeir Meymott v. Meymott Michael v. Gillespy V. Tredwin Michensen v. Begbie Middleton v. Earned V. Fowler Milbauk v. Revett Miles V. Gorton . V. Thomas . Milford, The Millar v. Craig Miller v. Dametz, ■u. Race V. Tetherington, V. Woodfall Milles V. Fletcher Millingtou v. Fox 357, 379 , 161, 181 . 306 . 911 . 786 549, 555 895, 896 843, 844 . 619 17, 25, 27 . 123 Asso- . 293 . 473 . 545 . 294 229, 230 . 339 625, 674 . 342 . 181 133 691 728 691 368 655 373 278 342 490 727 93 189 178 131, 726, 187 174, 175 568, 571, 572,' 573, .''75, 580, 590 Mills V. Ball 652, 653, 662, 664, 665, 669 17, 22, 23 V. Fowkes Milne v. "Bartlet . V. Leister . Milward v. Hibbert Minehiu, Ex parte Minerva, The, AndauUe Minnit v. Whinery Minshall v. Lloyd Mires v. Soloba'y , Mitchell, Ex parte 378 . 721 92, 108 . 422 835 n., 839, 842, 9U . 293 . .459 . 626 307 «. Edie 141,145,155,181,184 NAMES OF ENGLISH CASES CITED. xxvu Mitchell V. Darthez V. Scaife MoakesK. Nicolson Moet V. Couston . Moffat V. Farquharson Mogg V. Baker Moller V. Lambert Monk V. Sharp Monkhouse-f. Hay Munro, Ex parte Montgomery v. Budge 0. Egginton Moore, Ex parte . V. Barthrop Moran v. Jones Morans v. Armstrong Moravia v. Levy . Morck V. Abel Mordy V. Jones Moreton v. Hardern Morgan, Ex parte ; In house V. Brundrett V. Gath . V. Horseman V, Price . Morison v. Gray . ■u. Moat . V, Salmon Morley v. Hay Morris v, Barrett . V. Cannan V. Colman V. Kearsley V. Robinson 1). Venables Morton v. Lamb . Moses V. Pratt Mosley v. Walker Moss V- Smith V. Sweet Mosse V. Townsend Motley V. Downman Motteux V. London Company Moult, Ex parte . Mount V. Harrison V. Larkins Mouse's Case Mucklovv V. Mangles Muir V. Muir MuUer v. Moss MuUett V. Green . I/. Shedden MuUoy V. Backer Munro, Ex parte . V. Vandam Murray D. Hatch . Musgrave v. Drake Myers v. Edge 426 . 82 691, 695 612, 628 589, 590 412 537 369 542 457 470 264 170, 209 427, 497 . .501 99, 104 . 308 . 363 . 230 . 170 . 306 re Wood- . 558 . 534, 535 . 615 . 560 . 219 . 650 . 583, 584 . 569 651, 670, 671 . 356,412 . 493 . 331 . 356 175, 176, 179 . 555 . 606 . 229 . 715 . 179, 180 . 626 . 688 575, 580, 582, 588 Assurance . 125 . 433 73,176, 181 . 121 . 94 . 624 . 244 . 461 460, 468, 469 143, 145, 154, 161, 181 . 82 . 474 . 133, 135 . 158 . 304 . 370 Nancy, The, Benjamin . 835, n. Joy . . . 839 Enudsen . . . 857 Nash V. Hodgson . 20, 21, 24, 29 Navone v. Haddon . . . 165 Navulshaw v. Brownrigg . . 734 Nayade, The Mertz . . . 804 Naylor v. Mangles . . 699, 706 ■0. Taylor . . . 172, 177 Neate v. Bull . . . .668 Negotle en Zeevart, The . . 944 Neish V. Graham .... 694 Nelly, The, Perrie . .' . 805 Nelson v. Bealby . . . .338 (Earl) V. Bridgport (Lord) 282, 283 V. London Assurance Com- pany .... 458, 483 Nelson, The ... 57, 58 Neptune, The . . . .803 , Keetley . . 944 Neptanus, The, Bachman, 8C5, 809, 810, 854, 858, 859, 887, 889 Hempel, . 889, 900 Kuyp, 889, 892, 897 Nereide, The . . . .785 Nerot V. Burnand 372, 373, 384, 412 Nesbitt t). Lushington . . 91,94 V. Meyer .... 364 Neutralitet, The, . . 853, 858, 891 , New Adventure, The . . .839 New Brunswick and Canada Rail- way Company v. Conybear . 358 ~ . . 468 . 695- . 583 . 107 6, 7, 11, 14, 20, 353 . 542 469, 501 . 653 349, 351 . 472 . 355 550, 557 . 688 640, 651 . 686 . 670 . 665 . 696 . 542 . 355 293, 298 . 878 . 306 . 941 . 541 . 721 299, 424 Newberry, Ex parte V. Colvin Newbery v. James Newman v. Cazalet Newmarch v. Clay 5, Newnham v. Stevenson Newport v. HoUings Newsom v. Thornton Newsome v. Coles Newton, Ex parte ■V. Blunt . V. Chantler V. Trigg Nichols V. Le Feuvre Nichols V. Clent . V. Hart . Nicholson v. Bower V. Chapman V. Gooch ■v. Revill V. Ricketts Nicolas and Jan, The Nicoll V. Glennie Nina, The . Nixon V. Jenkins Noble V. Adams . Nolte, Ex parte . XXVUl NAMES OP ENGLISH CASES CITED. 545 697 423 897 473 56 708 . 723 885, 887, 889 . 542 334 382 892, 899 295, Norden ». James .... Nordsfjemen, The Norfolk, Ex parte . .414, Nornen, The Dahl North British Insurance Company V. Hallett .... North Star, The .... V. Gurney . . . 458, V. Jackson Northcote v. Douglas Norton, Ex parte V. Seymour Norway v. Rowe Nossa Senhora, The Nostra Signora de Begona, The . 854 del Rosario, The 947 NoTarro, The .... 949 Nuestra Senora deles Dolores, The Morales 930 Nunn V. D' Albuquerque . . 590 Nutting, Ex parte . . 458, 484 Oakford v. European and American Steam Shipping Co. . 308 V. Drake . . . 650 Q'Callaghan v. Thomond . . 277 Ocean, The, Harmseu . . ' . 939 Ockenden, Ex parte . . . 681 O'Connor, Arthur, Re . . . 457 . Odessa, The .... 930 Odin, The, Wals . . .807 Ogilvy, Ex parte .... 426 Ogle, Ex parte . . . 419, 426 !). Atkinson . . . 659 •Oldaker v. Lavender . . . 376 Olive V. Smith . . . 703 Oliver v. Cowley . . .127 Olivier, The O'Mealey v. Wilson Omnibus, The, Tennes Onderneeming, The Onni, The^ . Oom V Bruce . . Oppenheim v. Fry V. Russel Orchard v. Rackshaw Ord, Ex parte O'Reilly v. Gonne V. Royal Exchange ance Company Orelia, The . Oriental, The Bank v. Coleman Orozembo, The . Orr V. Chase . V. Murdock . Osborne v. Harper Osmanli, The . . 55 Ospray, The, Paddock Oster, The, Risoer 337, 803, 937 944, 945 . 943 . 67 . 230 91, 215 665, 670, 671, 691 . 698 484 126 Assur- . 126 59, 67 61 553, 558 . 861 307, 353 , 656, 658 . 364 64, 65, 66 . 941 . 858 619, Ostsee, The, Voss Oswald V. Thompson Oswell V. Vigne . Otto and Olaf, The Ouachita, The Ougier v. Jennings Outram v. Chase Owen, Ex parte . Owenson v. Morse Oxolm, The Packer v. Gillies . Page, Ex parte V. Cowasjee Eduljee V. Cox Pagett's (Lord) Case Palmer v. Blackburn V. Marshall Palyart v. Leckie Penanghia Rhomba, The Parfitt V. Thompson Pariente v. Pennell Parish v. Crawford Parke v. Sliason . Parker, Ex parte V. Barker I'. Patrick V. Potts . V. Ramsbottom Parmeter v. Parmeter . V. Todhuater Parminter, Ex parte Parnham v. Hurst Parr, Ex parte Parry v. Aberdeiu . 143 V. M'Lachlau Parsons v. Gingell ■o. HaywArd V. Scott . Part, Ex parte Patapsco, The, Hall Patch, Ex parte . . 475 Patten v. Thompson Patterson v. Ritchie Paul V. Birch Pauli, Ex parte . Payne v. Hornby 286, 412, V. Ives V. Shadbolt Peacock, Ex parte V. Peacock 334| 341, 342, 360, 361, V. Rhodes. Peake, Ex parte 385, 401, 405, 406, Pearce v. Chamberlain V. Lindsay V. Piper . . V. Siocombe Pearl v. Deacon . . 897 557, 561 . 138 . 893 . 858 . 123 . 545 . 338 . 699 . 839 . 717 . 41^ . 629 . 336 . 511 . 218 . 121 . 231 . 895 129, 135 . 493 . 696 . 502 . 414 . 348 543, 723 133, 135 350, 427 . 545 180, 184 . 430 . 557 .■ 434 177, 179 . 239 . 689 . 362 172, 173 . 434 . 842 479, 484 649, 654 . 172 . 691 . 502 538, 555 . 2S9 . 667 ,419, 435 338, 340, 368, 373, 375, 380 726, 727 402, 404, 423, 434 335, 336 . 373 . 377 . 419 18, 20 NAMES OF ENGLISH CASES CITED. XXIX Pearson v. Commetcial Union As- surance Company V. Dawson V. Skelton Pease, Ex parte . V. Gtloahec V. Hewitt . . . 376, V. Hirst Peele, Ex parte . . .413, Peer v. Humphrey . Ili, 715, Peirse v. Bowles . Pellecat v. Angell Pelly V. Royal Exchange V. Wathen . Pemberton, Ex parte . V. Oakes 25, 353, Peninsular and Oriental Steam 121 656 344 504 671 380 27 414 720 300 254 218 707 400 370 Navigation Co. v. Shand Penn v. Baltimore, Lord Pennell, Ex parte V. Alexander V. Dawson, V. Deffell, V. Heading Pensamento Felix, The Penson v. Lee Perring v. Hone Perris ». Roberts Perry v. Jackson V. Truefitt 565 259. 650, 260 276 416 671 . 555 25 . 534 . 948 228, 229,232 . 296 3 . 307 580, 581, 585, 588 . 697 . 782, 858 7, 14, 18, 21, 23 . 105 . 383 . 124 . 368 . 274 . 542 117, 135 136, 176 . 356 . 691 244, 245 . 562 114, 129, 239, Perseverante, The PeterhotF, The . Peters v. Anderson 5, V. Milligan Pettyt V. Janeson Phelps V. Auldjo . Philips V. Atkinson Phillips V Allan . V. Earner V. Headlam V. Nairne V. Phillips V. Rodie . V. Stamfield Philpott, Ex parte V. Jones, V. Swann Phoenix, The, Susini . . 839 The, Wildeboer . Phyn V. Royal Exchange Assur- ance Company .... Pickering v. Busk Pidding v. How .... Pierce v. Franks .... Pilkington u. Commissioners for Claims on France Pilling V. Pilling . . 342, Pinder v. Wilks .... Pinkerton, Ex parte . . 423, Pinkett v. Murray 171 930 941 121 733 585 590 270 361 350 424 537 700, Pinkett v. Wright Piakney v. Hall . Pinnel's Case Pinnock ». Harrison Pirie v. Steele Place V. Pott Plauche v. Fletcher Plantamour v. Staples Plowden, Ex parte Plummer, In re . V. Wildman Podger's Margaret Case Poingdestre v. Royal Exchang As' surance Company Polka, The . Polly, The, Lasky Ponsardin v. Peto ; Ex elli . . Ponsford v. Walton Portalis v. Tetley Porter v. Taylor . V Walker . Portland, The, Farrie Posten, The Potsdam, The Pott V. Eyton Potter, Ex parte ; Re Barron V. Brown . Potts V. Bell Poulson, Ex parte Powell V. Gudgeon V. Hoyland Power V. Whitmore Pratt V. Vizard Prendergast v. Turton Price, Ex parte . V. Bell V. Groom . V. Noble v. Williams Pride of Wales, Re the owners, &c., of the ship Priestley li. Pratt Primus, The Prince George, The Priscilla, The Prismall v. Lovegrove Pritchard v. Draper V. Hitchcock Proctor V. Nicholson Proudfoot V. Montefore Prowett V. Mortimer Pulling V. Tucker Purceli V. Douglass Purissima Conception, Purser v. Brain . 498 294 18 710 . 215 . 67 122, 256, 811 . 175 . 428 . 417,435 100, 101, 103 . 652 215 . 954 . 844 parte Uzi- . 591 . 545 . 734 . 371 . 549 . 941 . 890 . 892 344, 349 . 545 .. 273 . 803, 806 . 413 95, 106 . 723 . 101 . 699 . 382 459, 473, 475 . 137 . 493 . 108 . 365 935, The, 470 464 943 . ■ 64 69, 70 . 464 . 300 . 534 . 639 . 232 . 575 . 545 . 711 754, 946 575, 580 Quarrier v. Colston . . . 256 Quartermaine v. Bittleston . . 504 Queen, The, v. Hildebrandt ; The Aline and Fanny . . .898 xzx NAMES OF ENGLISH CASES CITED. Quelin v. Moisson Quick V. Staines . Quin V. Keefe Baba v. Eyiand . Eackstraw v. Imber Eadcliffe ». Eushworth Baikes, Ee . . Eaine v. Bell Eal.eigb, Ex parte Ealli V. DennistouQ V. Jauson Eandal v. Oockran ■V. Innes . Eandall v. Eandall Bander's Bye, The Bandleson, Ex parte . Eauelaugh v. Champante Banger, The Banken v. Eeere . Eansom6 v. Bentall Baphael v. Bank of England Bapid, The 862, 864, 865 Bapida, The, Bokleman Eapp V. Latham . Bathbone v. Drakeford Eaven, The .... Bawbone's Trust, In re Bawlins v. Wickham . Eawlinson v. Clarke Bawson, Ex parte Bay V. Bay .... Baymond's, Sir Charles, Case Bayner, Ex parte . «. Eitson Bead v. Bonham V. Holliushead Beade v. Bentley . V. Latnb Bebecca, The Eedman v. Wilson Eeed v. Winter . Eeeve, Ex parte . V. Davis V. Parkins V. Whitmore Beg. V. Macdonald V. Smith (John) Beid, Ex parte V. Darby V. Fairbanks V. HoUinshead V. Hoskins . Beimer v. Eingrose Eeliance, The Benton v. Bayley Eesolution, The . Bex V. Almon • V. Sgginton . V. Hall . V3, 143, 176, 181 166, . 2Y3 4Y0, 4^98 . 274 . 293 . 363 340, 348 . 478 . 123 302, 416 . 275 16'4, 167 186, 696 . 245 . 356 . 895 22 . 264 854, 858 . 123 . 568 . 732 944, 945 . 944 . 306 . 302 . 854 458, 489 359, 376 . 340 419, 425 . 496 . 336 . 484 . 181 159, 175, , 182, 184 . 293 . 340 . 279 56, 933 128, 129 . 354 419, 428 . 696 . 377 . 625 . 344 . 593 . 429 74, 176 . -624 338, 339 . 811 167, 179 66 . 245 859, 948 . 306 . 501 . 545 Bex V. Hartley . • . 343 ■ V. Pearce 306 V. Eeculist 545 V. Topham 306 Eeynal, Ex parte . 459 Eeynel v. Lewis . 309 Eeynolds v. Bowley 411 486 0. Hall . 467 495 Bhadamanthe, The 66, 69 Ehode V. Thwaites , 614 Ehodes v. Bhodes 342 Bibbans v. Crickett 22 Bibeyre (La Marquis de) v Bar- clay .... 292, 306 Bich V. Parker , 137 Eichards v. Davifes . 365 V. Heather 386 Eichardson, Ex parte . 458 484 V. Goss ,. 666 668 ■1). Hastings , 366 V. Nourse 72, 104, 106 Bichmond v. Heapy 304. 306, 371 , The . 853 854 Eickards v. Gledstanes , ' 474 Eickman v. Carstairs . 214 Eidgway v. Glare 352 386 V. Boberts 75 Bidley v. Gyde . 542 ■u. Taylor . 304, 305 Eight V. Cuthell . 640 641 Eingende Jacob, The, Lane 791, 859 Eipley v. Waterworth . 356 Elx, Ex parte 428 Bobert Hale, The . 949 Boberts v. Hardy 803 Eobertson v. Carruthers 158 176 V. Clarke 73, 7 4, 143, 155, 158 176 V. Ewer 101 V. Liddell . 545 V. Lockie 379 V. Quiddington 358 Bobinson, In re . 274 Ex parte 425 V. Alexander 384 V. Anderson 341 Bobley v. Brooke Eoderiek Dhu, The Eodgers, Ex parte V, Nowill Eodwell V. Bedge Boe V. Galliers Bogers v. Cathoart V. Bland 239, 256, 263, 264, 267 V. Gleadow . . .303 ». McDonnell . 466, 625 V. Marine Insurance Company . . i24 V. Walter . . . 533 V. Wilkinson . . 344 . 412 . 64 435 580, 582, 591, 592 . 639 . 458 . 239 NAMES OF ENGLISH CASES CITED. XXZl 547, Rogers v. Mackenzie . . . 429 V. Rogers .... 110 Rolfe V. Bank of Australasia . 435 V. Flower . . . .414 Rolla, The . . 882, 885, 886, 890 Rosalie and Betty, The . 842, 857 Rose V. Hart V, Haycock . V. M'Leod Rose, The, Young in Bloom, The Rosetto V. Gurney Rosher v. Hurdis . Rotch V. Eadie Rothschild v. Currie Rothwell V. Humphreys Rouch V. Great Western Railway Routh V. Thompson Roux V. Salvador . Rowe V, Pickford . V. Wood Rowlands v. Kvans Rowlandson, Ex parte 706 556 274 839 813 80, 166, 177, 179 288, 290, 292 . 174 . 264, 267 293 542 226 . 13,9, 157 . 639, 642 . 360 . 378, 384 343, 386, 400, 407, 410 . 502 . 416 67, 59, 60, 64, 65, 66, 67, 69 Royal Bank of Scotland v. Cuth- bert 274 Rubicon, The ... 59, 66 Ruck V. Hatfield . . . .662 Ruckner v. AUnutt . . . 123 Ruckmaboye (Her Highness) «. " Mottichund . . . .282 357, 385, 387, 397, 399,402,412 . 459, 460 612, 619, 622 689, 690, 701 .711 . 359 538, 540, 545 . 429 440, 442, 458, 470 Rowton, Ex parte Roxby, Ex parte . Royal Arch, The RufBn, Ex Parte Rufford D., Bishop Rugg V. Minett Rushforth v. Hadfield Russel iigRussel . Russell V. Austwiok Rust V. Cooper Rutherford, Ex parte Ryall V. Rolle !>. Rowles 458, 471, 489, 511, 512, 513, 522, 524 Ryan, Re 536 Sacker v. Chidley . . . 465 Sadler, Ex parte . . . .423 V. Dixon . . . .129 St. Aubin v. Smart . . .305 St. Barbe, Ex parte . . 420, 425 St. Catherine, The . . 66, 911 St. Juan Baptista, The, and La Purissima Conception St. Louis, alias El Allesandro, The . . . "^ . Salacia. The .... Salisbury v. Townson . 786 792 68 123 Sally, The, Griffiths Hess . Salomons v. Nissen Salti V. Field Salton V. Salton . Salvador v. Hopkins Sampson, The, Barney Samuel v. Duke . V. Royal Exchange Assur- ance Company 121 944 837 672 667 244 123 785 720 160, 187 951 San Francisco, The San lago. The 909, 912, 913, 919, 928, 950 Sander v. Sander .... 378 Sanderson «. Bell . . 698,711 V. Brooksbank . . 306 Sandilands and others. Executors of Howden v. Marsh Sansom, The Santa Cruz, The, Picoa 283, 299, 349, 413 951 908, 914, 925, 939, 946, 950 Santa Reta, The . . . .914 Santissima Cora(;ao de Maria, The 857 Santissima Trinidad, The 865, 868, 870 . 258 853, 859 . 95 . 370 706 350 Santos V. lUidge . Sarah Christina, The Sarquy v. Hobson Saunders v. Taylor Savill V. Barchard Saville v. Robertson Sayer v. Bennett . Scaife v. Tobin Scarfe v. Morgan . Scattergood v. Sylvester Schacht V. Otter . Schoone Sophie, The . 703, . 344, 330, 332, 377, 378 . 107, 108 696, 697, 711 . 718 . 898, 953 . 946 Schotsman v. Lancashire and Yorkshire Railway Company 649, 659, 661, 662 Schuster v. M'Kellar . . 619, Scott V. Avery 672 191 25 V. Beale V. Bevau V. Izon .... 419 V. Newington . . .710 i;. Pettit . . 662, 666, 667 V. Pilkingtou . . 251, 282 V. Scholey .... 330 f. Seymour (Lord) . . 278 V. Thompson . . 124, 126 Scottish Marine Insurance Com- pany of Glasgow V. Turner 170 171, 186, 187 Scurfield v. Howes . . . 451 Sechs Geschwistern, The . . 944 Seddon, Ex parte . . . 416 Sedgwick v. Daniell . . . 363 Segredo, The . . . .252 Seixo II. Provenaede . . 573, 575 xxxu NAMES OF ENGLISH CASES CITED. Selkrig v. Davies . . . 366 Sergeant, Ex parte . . . 504 Serle ». Bradshaw . . . 496 Shaftesbury (Earl of) v. Russell . 460 Shakeshaft, Stirrup and Salis- bury, Kx parte . . . 390, 4.19 Sharp V. Gladstone V. Taj'lor . Sharpies v. Richard Shaw, Ex parte . V. Gait V. Harvey V. Pioton Shawe V. Felton 101,, 191 . 256 . 263 . 560 . 347 . 469 18 160, 208, 212, 214 400 . 313 . 891 614, 621, 658 . 434 . 723 734 108 Sheatfield, Lawrence & Co., In re ; Young V. Keighly Shepherd v. Allen Shepherdess, The Shepley v. Davis . Sheppard, Ex parte V. Shoolbred V. The Union Bank of London ffl. Wright . Sheridan v. The New Quay Com- pany Sheriff h. Potts .... Ship Warre, In re Shipton V. Thornton ShirrefF v. Wilks Shore ». Bentall Shower v. Pilck . Showier V. Stoakes Shrimpton v. Laight Shrubsole v. Sussams Shuttleworth v. Hernaman , Sidaw.ay v.' Hay . Siebel v. Springfield Siebert v. Spooner Sigourney v Lloyd Siffken v. AUnutt i). Wray . Sififkin V. Walker SiUltoe, Ex parte Simeon o. Bazett . Simmonds v, Bailey «. Leonard «. .Swift Simmons v. Swift Siraond v. Boydell Simonds v. Hodgson V. While 619 . 123 . 625 78, 79, 81 . 303, 304 116, 119, 129, 134 .1 .628 . 304 573, 580, 581 462, 536, 542 , 457 . 274, 275 25, 702 . 546 . 728 . 230 640, 649, 650, 652 . 302 . 419, 420, 425 . 256 . 469 . 336 . 621 621, 667 . 232 58 07 Simpson, Ex parte 534, 536, 546, 560 V Chapman V. Fogo u. Sikes ■ V. Vaughau Sims V. Bond V. Brittain . V. Brutton . Slmson V. Cooke , . 382 . '282 550, 557, 558 . 10 . 369 . 369 . 304 . 370 Simson v. Ingham 22, 24, 25, 27, 370 237 497, 537, 543 . 569 458, 477, 484 . 369 . 687, 689 . 391 . 372 . 688 . 301 . 731 7, 352 603, 610, 667 . 358 671, 695, 699, 710 K. Dudley et al. 511,613,518, 520, 627, 528, 529, 630,531 Sniart, Ex paMe .... 474 Smith, Ex parte 372, 412,424, 425,427, 428, 431, 434, 436, 466,-504 Ex parte, in re Styan . 493. V. Brown and Cooper . 257 V. Buchanan . . . 274 V. Cannan 549, 551, 552, 554 Sinclair v. Fraser K. Wilson Singleton v. Bolton Sketchley, Re Skinner y. Stocks V. Upshaw Skip V. West Skipp V. Harwood Skvpworth v. Anon Slater v. Lawson V. West Sleech's (Miss) Case Slubey v. Heyward Smale v. Graves . Small i>. Moates i>. Coleman V. Cramer . V. Craven V. Dearlove V. Everett V. Field . V, Goss V. Gould V. Hudson V. Jameson V. Jeyes . V. Mules . V. Oriell . V. Payne . V. Robertson V. Sherwood V. Smith . V. Surridge V. Watson V. Wlgley V. Winter Smither, Ex parte Smyth, Ex parte Snaith v. Burridge V. Mingay Snead v. Watkins Snee v. Prescott . Snipe, The . Snook V. Davidson Show V. Milford . Soares v. Rahn . Soblomsten, The 296 . 542 . 302 . 687, 689 . 357, 358 . 667 . 664, 671 63, 64, 65, 66, 257, 282, 284 491, 619, 663 . 293, 431 . 367, 376 . 376 . 380 . 536 ... 185 . 334 18, 412, 473 . 121 338, 343, 411, 485, 486 25 . 307, 351 . 471, 489 435, 458, 474, 488 . 303 . ■ . .262 . 688, 689 . 648, 729, 730 . 883 . 705 . 377 65 • • . 82 bodergren v. Flight and Jennings 606, 691 NAMES OF ENGLISH CASES CITED. XXXlll Soglasie, The, Fischer . 944, 945 Sellers, Ex parte . . . 602 Solly ». Whitmore . . . 123 Solomon, Ex parte . . . 432 Solomons f. Bank of England . 731 Somersett's Case . . . 257 Somerville v. Mackay . . . 365 Somes V. British Empire Shipping Company . . . 699 V. Sugrue . . 74, 175, 176 Sora (Duchess di) v. Phillips . 283 Sorensen v. The Queen 937, 944, 945 South Carolina Bank v. Case 293, 294, 303 Southern v. How . . . 569 Spackman v. Miller . . . 467 Spalding v. Ruding . " . . 674 Sparkes v. Marshall . . 615, fil8 Sparrow, Ex parte . . .551 V. Carruthers . . 337 V. bhisman . 306, 371 Spartali «. Benecke . . . 612 Spears «. Hartley . . 706,711 Speculation, The . . .892 Spencer, Ex parte . . . 484 Spes and Irene, The . 889, 890, 891 Spicer v, James .... 358 Spirettt). Willows . . .562 Spottiswoode v. Clarke 673, 575, 680 Sprague, Ex parte . . . 472 Springbok, The . . . 782, 858 Sprowle V. Legge . . . 262 Staadt Embden, The, Jacob 854, 858 Stables v. Eley .... 350 Stacey v. Decy .... 369 Stainbank v. Fenning ... 60 V. Shepard . . 57 V. Stainbank . . 66 Standard, The .... 69 Staner, Ex parte . . 461, 462, 467 Stanger i>. Wilkins . . . 551 Stansfield v. Cubitt . . 466, 493 Stapleton v. Haymen . . . 497 Star, The 839 Stead t). Salt . . . 301,302 Steel V. Lacy .... 138 Steen Bille, The . . . .886 Steiglitz V. Bgginton . . . 307 Stephen Hart, The . . .868 Stephens v. M'Farland . 249, 277 V. Peel . ... 573 .;. Reynolds . . .295 V. Sole . . . 457, 458 V. Wilkinson . . 670 Stephenson v. Hart . . . 721 Sterndale v. Hankinson . . 25 Stert, The 884 Stevens, Ex parte . . . 479 v. Cook . " . . .342 V. Sole . . . : 440 Stevenson v. Blakelock 681, 693, 707 Stevenson v. Newnham 542, 543, 557 u. Snow 221, 223, 224, 225, Steward v. Lombe Stewart, Ex parte ■i;. Forbes V. Greenock 228, 229 . 459 . 484, 485 . 341 Marine In- surance Company 160, I8( 187, If V. Moody V. Steele V. Wilson Stitt V. Warden . Stocken v. Dawson Stocker v. Brocklebank Stokes V. Riviere Stonard v. Dunkin Stone V. Lingwood V. Marsh . Stonehouse v. Gent Storer v. Hunter . Stoveld, Ex parte V. Eade V. Hughes Strachan v. Barton Straker v. Ewing Strange v. Lee Stranford v. Green Stray, Ex parte . V. Russell . Street v. Rigby Stright, Ex parte Stroud, Ex parte Strutt, Ex parte . Stuart V. Bute (Earl of) Styan, In re Ex parte . Success, The Sudlow V. The Dutch Railway Company Sultan, Cargo Ex Sumner v. Powell Sunbolf ti. Alford Susan, The . Sutton V. Gregory Swain v. Shepherd Swainston v. Clay Swan V. Steele Swanwick v. Sothern Swanzy, Ex parte Sweet V. Pym Sweeting v. Pearce Sydney Cove, The Sykes v. Sykes Tait V. Levi Taitt, Ex parte Taleyrand v. Boulanger Tamvaco v. Simpson Tanner, Ex parte V. Bennett 459 650, 558 . 216 . 134 . 123 . 381 . 344 659, 669 . 626 . 697 306, 714 . 61 460, 468 . 426 17, 19 . 655 540, 641 . 651 370 302 560 61^ 366 479 420 434 336 477 468 886 10, Rhenish . 251 . 57 353, 386 686, 688 862, 866 . 294 . 626 464, 699 294, 304 623, 658 432 650, 708 . 706 67, 69 . 669 134, 229 . 424 244, 278 . 692 . 478 159, 175 NAMES OF ENGLISH CASES CITED. Tanner v. Scovell . . . Bet Tansley v. Turner . . 623, 658 Tappenden v. Burgess . 557, 558, 560 V. Randall . . 230 Tarling v. Baxter 596, 610, 611, 612, 629 Tasker ti. Cunnlnghame . . 122 Tate V. Meek Tatam v. Williams Tatham v. Andree Tattersall v Groote -Taylor, Ex parte 401, . 695 336, 384 495, 712 365, 376 426, 458, 465, 557, 561, 562 . 257 . 581 . 715 . 96 . 366 . 17, 20, 25 . 686 . 560 . 598 . 532 . 472, 474 421, 422, 428 . 464 V. Barclay V. Ca"rpenter I/. Chambers V. Curtis . V. Davis . V. Eymer V. Robinson Tealdi, Ex parte . Tempest V. Fitzgerald Temple v. Alderson Tennyson, Ex parte Terrell, Ex parte Terry, Re . . Tewkesbury, Bailiffs of, v. Diston 717 Thackthwaite v. Cock . 468, 469 Thames Iron Works Company v. Patent Derrick Company 688, 699 Thelluson v. Fletcher . . .185 Thellusson v. Fergussou . . 121 Thicknesse v. Bromilow . 293, 294 Thomas, Ex parte . . . 557 In re . . . . 496 V. Courtnay . . . 355 V. The Royal Exchange Assurance Company . 125 Thomason v. Frere . . 373, 383 Thompson,. Ex parte 419, 421, 474, 502 V. Brown ... 27 V. Colvin . . . 176 V. Freeman . . 536 V. Giles . 502, 503, 504 «. Hooper . . 121, 133 v. Hunter . . . 215 ■u. Percival . 354, 402 V. PSttltt . . . 459 V. Powles . . 257, 268 y. Rowtfroft . 179, 187 V. Royal Exchange As- surance Company 144, 145, 149, 165, 179 V. Speirs . 458 477 ». Taylor . 169 V. Tompkins 475 488 ■u. Waithman 301 V. Williamson 341 Thomson ». Lythgoe . 245 Thornely i>. Hebson 174 Thornton, Ex p?,rte 433 Thornton v. Dixon . . .356 ». McKewan . • 18 V. Proctor . • 361, 381 V. Royal Exchange Company Thorpe, Ex parte V. Jackson Tigress, The Timson v. Ramsbottom Tipping ». Clark . Tobago, The Tobin «. Harford Tomlin «. Lawrence Tonge 1!. Watts . Took V. Hollingworth . Topping, Ex parte ; Re Levey V. Reyseil Toulmin v. Anderson . V. Copland ToDssaint v. Hartop Townley » Crump Townshend v. Devaynes Trantor v. Shippin ■o. Watson Trappes v. Barter Travis v. Milne Tredwen v. Holman Trende Sostre, The Trent, The . Treuttel v. Barondon . Trident, The Triheten, The Trimbey v. Vignier Trinity House, The, v. Clark Tripp ». Ai-mitage Tronson v. Dent , Troup's Case Tubal Cain, The . Tucker v. Cosh 135 . 303, 413 . 386 649, 671, 673 . 473 . 584 . 946 . 217 . 371 . 169 500, 502, 667 . 429 . 543 . 808 . 353 . 464 492, 655 . 356 49 49 459, 460 . 381 . 191 864, 887 865, 954 . 728 62, 66 . 885 261, 262 . 696 . 624 76 . 342 . 858 . 511 855, 864, 251, ». Humphrey v. Ruston Tudor V. M,acon>ber Tugman v. Hopkins Tuite 1). Royal Exchange Assur- ance Company Tunno «. Edwards Turley v. Bates .... Turner, Ex parte . . 425, '431 V. Hardcastle . . . 557 V. Liverpool Docks, Trus-. tees of . 619, 650, 661 V. Major . . . .366 649, 675 . 657 . 107 470 212 177 623 420 539 687 890 Turquand, Ex parte . . 344, ». Vanderplank . Turrill ». Crawley Tutela, The ■ ■ . . Twee Gebroeders, The, Al'berts' 748, 752, 754 Northolt . 735 Twee Juffrouwen, The,Etges 853, 859 Twende Brodre, The . . 854 NAMES OF ENGLISH CASES CITED. Twilling Biget, The Twine's Case Twiss V. Massey . Twyne's Case Tyler v. Home Tyrie v. Fletcher . 933 438, 511, 513 410, 417, 418 . 544 . 232 . 220, 224 Underwood «. Robertson . 159,179 Union, The .... 68, 886 United States v. Quiney . . 868 Unity Banking Association, Ex parte 413 Unwin v. Oliver . 511, 513, 521, 560 Urquhart ». Barnard . . . 123 Usborne, Ex parte . . 401, 472 Usher u. Noble . . 211,212,213 Usparicha «. Noble . . .811 Uther V. Rich' . . . .732 Vachel v. Vachel Vacher v. Cocks . Vallance, Ex parte V. Dewar Vallejo V. Wheeler Valpy V. Gibson . Van Casteel v. Booker 65 . 540 , 458, 484 . 123 . 696 . 668 537, 653, 660, 661, 670 Van Grutten v. Digby . . .263 Van Omeron «. Dowick . .179 Vanderzee v. Willis . . ' . 704 Vandyck v. Hewitt . . . 230 Vanzeller, Re . . . .433 Vardon, Ex parte . . . 488 Vaughan Rice, Ex parte '. . 408 Vauxhall Bridge Company, Ex parte ..... 458 Venice, The . . . .888 Venning v. Leokie . . . 363 Venus, The 813 Vere v. Ashby 1 . . 294, 350 Vertue v. Jewell Verwagteg, The Vibilia, The Vice V. Fleming Vickress's Trust, In re Victoria, The Vier Gebroeders, The Vigilantia, The, Geritz Viner v. Cadell . Vining, Ex parte . Violett V. AUnutt Virginie, La, Coigneau Vlierboom v. Chapman Volant, The, Bessom . Vreede, The, Scholtys Vreyheid, The . Vriendschap, The, Jansen Vrouw Anna Catherina, 294, 653, 654 . 819 58, 66 . 293 . 458 . 793 . 50 892, 940, 941, 942, 944 490, 496 . 432 . 123 . 938 76, 170 . 836 . 943 903, 904 . 847 The, Mahts . 748, 753, 933, 941, Vrouw Barbara, The . 942 885 Vrouw Cornelia, The, Dykstry . 8U Elizabeth, Probst . . 942 Henrica, The . . . 93.S Henrietta, The . . 934 Judith, The . 885, 888, 892 Margaretha, Crigsman . 944 Vulliamy v. Noble . 349, 351, 373 Wain V. Warlters Wait, Re V. Baker Waithman, Ex parte Waldron v. Sloper Walker, Ex parte V. Birch . . V. Burnell V. Clyde . V. Maitland V. Rostron Wallace v. Breeds V. Fielden V. Kelsall Woodgate Waller v. Drakeford Wallis, Ex parte . Wallworth v. Holt Walmesley v. Cooper . Walmsley v. Walmsley Walpole V. Ewer . . ^ - Walton V. Butler . V. Dodson Want V. Reece War Onskan, The Warbrook v. Griffin Ward's Case V. Clarke Waring, Ex parte Warner u. Cunningham V. Smith Warre.!). Miller . Warrender v. Warrendcr Wasser Hundt, The, Loretzen Wataga, The Waterfall, Ex parte V. Penistone Waterhouse v. Skinner Waters v. Taylor V. Tompkins Watkins, Ex parte Watney v. Wells Watson, Ex parte «. Balfour «. Clark v. Fletcher V. Peache Watt V. Morris Watts V. Christie . Waugh V. Carver . i>. Wren . . 288, 290 . 383 . 611, 625, 661 . 477, 478 . 458, 474 . 433 . 700, 703 . 440, 445 . 612 . 116, 119, 128 . 557 614, 620, 622, 658 60 . 304, 308, 371 . 697, 708 . 734 . 426 . 365 . 308 . 384 . 107 . 412 . 369 . 363 . 951 . 689 . 514 548, 688 . 502 . 336 . 340 . 123 258, 276 . 901 . 67 . 415 . 457 . 611 316, 329, 334, 372, 376 . 19 424, 459, 478, 484 . 342, 376 344, 348, 422, 425, 427, 428, 431 538 . 135 . 339 460, 468 . 133 . 705 340, 344, 348 . 18 NAMES OF ENGLISH CASES CITED. Way V. Bassett .... 301 V. Modigliani . . . 122 "Waymell v. Reed . . '255, 256 Webb's Policy, Re . 458, 475, 495 Webster v. Bray . .341, 342 ■u. Webster . . . 349 Wedderburn v. Bell . . 127, 134 ■0. Wedderburn . 358, 381 Wedge V. Newlia . . . .545, 551 Weeks v. Goode . . . .711 Weir ». Aberdeen . 125,127,134 Welch D. Knott . . . 571,580 Weldon v. Gould . . . 703, 106 Wellington v. Mackintosh . . 365 Wells V. Masterman . . . 294 jj. Williams . . .811 Welvaart, The, Cornells . . 944 Kwest . 851,.855 ' Van Pillaw . 889, 893 Wensley, Ex parte 545, 546, 558, 562 Wentworth v. Manning . 8, 10 V. Outhwaite 663, 667, 670 West V. Reid V. Skip West Friesland, The . Westbury v. Clapp Western v. Wildy Westley v. Clarke Westmoreland, The Weston V. Barton Westwood V. Bell Westzinthus, In the matter Weymouth v. Boyer Wheatley, Ex parte Wheeler, Ex parte Wheelwright v. Jackson 356, 389, of 344, 478 396 67 534 ■ 65 452 67 370 705 674 700 413 400 560 Whilelmina, The, Otto 829, 836, 838, 842, 937 Whitby, Ex parte . . . 536 Whitcombe v. Whiting . . 301 White V. Dobinson . . . 696 V. Garden . 543, 722, 723 V. MuUett . . .497 V. Spettigue . . . . '714 V. Wilkes . ; . 614 Whitehead and Others, Assignees of E. Benbow, bankrupt, v. Anderson and Others, 632, 651, 655, 664, 665 666 669 Whitehead v. Barron . 350 ti. Taylor . 641 Whitehouse v. Frost . 614 Whitfield !>.. Brand 445, 456, 464 499 Whitmore, Ex parte . 416 ■(/. Claridge. 548 555 V. Empson . 457 459 V. Mason . 381 Whittingham v. Thornburgli 231 Whittingstall v. Grover 352 Whittle V. Macfarlane . 381 Whitwell, Re . . . 433 Whitwell V. Thompson • Whitworth, Ex parte . Wickham v. Wickham Vigfall ii.e master made to that Court, up to the. sentence recording the petition, survey, and esti- mate, etc'. Arnold and Robinson for the petition. Putting out of the present discussion the justness of the account which has been the foundation of the bond, and the THE GRATITUDTNE. 43 reality as well as the magnitude of the difficulties which gave occcasion for it, as matters either not disputed, or if disputed, as fit to be settled, as the Court has intimated, by a reference to the Registrar and merchants, we are called upon to show by what authority of law the master of a car- rier vessel can pledge the cargo, being the property of a general freighter, for the repairs of the ship. In cases not dependent on the necessities of navigation, it would be idle to *contend for such a power. But in such cases adverting to the peculiar situation in which a inaster is placed in *- times of danger, and to his known power over the cargo in other analogous cases, such as jactus and ransom, adverting to the principles of the maritime law, which imposes on the master a particular trust, and require of him a responsibility in cases of emergency for the benefit of the owner of the cargo : it seems to follow as an essential provision of the same sys- tem, that he should have a power and authority over the cargo, adequate to the purpose of discharging his duty, and providing for a safe delivery of his cargo at the port of desti- nation. Freight is not earned but on delivery ; it is but reasonable on that" ground, that when extraordinary exertion is necessary to effect that purpose on which his whole inter- est is made to depend, he should have so much authority as may be necessary to counteract the force of temporary acci- dents. Again, masters are forbidden, even in distress, to delay their voyage for want of money in a foreign port. They are indeed directed to write to the proprietors of the cargo, and supply themselves in that way, if it can be done without delay, but at the peril of answering for damages incurred by delay. This responsibility is enjoined upon them by the laws of Oleron,^ which are in a peculiar manner • Laws of Oleron, art. 23. — " Une marcliant frett une nef et la charge, et la mett en chemin ; et entre cette nef en une port, et demeiire tant que [denari] lui faillent, le maistre puet bien envoyer en son pays, pour querlr de I'argent ; mais il ne doit pedre temps, car s'il le faisoit, il est tenu A, pendre aux marchands tous les dommaiges qu'ils auront ; mais le maistre puet bien prendre des vins aux 44 THE GKATITUDINE. incorporated into the maritime jurisprudence of this country, being copied into the Black Book of the Admiralty as part of its substance, and being continually referred to in the public instruments of later times ^ (H. 6) as an important part of the maritime lai*^ of this country. Such a responsibility must, at least, be provided with the means of conforming to it. Accordingly, by the express letter of the codes of all the States of Europe, the cargo is held up as a fund to which in cases of necessity the master is allowed to resort. The master may bind it for a ransom bill (Consolato, art. 287) ; for if he becomes a pledge for the payment, the cargo is liable for his *redemptioii. He may "'-' throw it overboard to preserve the ship in time of dan- ger. He may sell a part in port to provide for the necessities of the ship, and enable him to continue his voyage. The Con- solato del Mare,* art. 104, directs that if the merchant is marchands, et les vendre pour avoir son estorement. Et quant la nef sera arrivee h droitte descharge, les vins, que le maistre aura pris, doivent etre au feur mys, que les autres seront vendusj ne h, greigineur feur ne k moindre. Et aura le maistre son frett diceulx Tins comme il prendra des autres. ■ Et c'est le jugement en nest cas." • 1 " Contra leges maritimas et statutum d'Oleron." " Juxta formam et statutum d'Oleron." — Black Book of the Admiralty. 2 Proceeding on the supposition that the merchants were on board, and having money : " Ancora h tenuto il patrone della nave, che se il mercante haver^ denari, et che fussero in loco, che il patrone della nave havesse bisogno di esarcie o alcuna ,cosa che necessaria fusse alia nave, il mercante gli debba prestare in quel modo, che il nocchiero et gli altri mercanti conosoerauuo che si debbia fare, e per tale ragione tuttili compagni et prestatori che nella nave saranno si debbono tutti obligare al detto mercante ; et se il patrone della nave, o gli com- pagni, o gli prestatori trovassino alcun huomo che gli prestasse, il sopradetto mercante non h tenuto di niente al loco prestare." — 105. Supposing that the merchants on board had no money : " Se il patrone della nave ha bisogna di denari e non ne trova come di sopra k detto, et che fus- sino in loco sterile, et che quelli denari havesse di bisogno per spacciamento della nave, et se gli detti mercanti non hanno denari, loro debbono vender della lor mercantia per spacciare la nave, et nessuno prestatore n^ compaguo non possono dir niente, nfe contrastare, insino che i^ue' mercanti sieno pagati, salvo che gli salari di marinati. Imper6 h da intendere, che il mercante veda et conosca che quello che lui presterk, sia per spacciamento della nave et necessario della nave." THE GRATITUDINE. 45 present, having money, he shall lend it ; if he has not money, the master may sell part of the cargo, giving him a lien on the ship for his security. The same power is given in the articles of the laws of Oleron before cited, and it is copied into the code of almost every state in Europe. It is true, the words of these ordinances describe a power to sell a part ; but that is not to be taken as a less power than the power of hypothecation, but rather as a greater power includ- ing the other, and expressed in that form only because in the earlier stages of foreign commerce it would appear best adapted to obtain credit, inasmuch as a bond to be enforced in a distant country would not be so negotiable and so accepta- ble to a foreign merchant as the absolute sale and delivery of part of the cargo. Nor is this mere inference unsupported by fact. The Ordinance of Antwerp, art. 19, does inciden- tally mention the power of pledging in the same article : " Le maitre du navire ne pourra vendre ni engager aucune marchandise tant qu'il trouvera argent au ghange ou grosse aventure. Pourra k toute extr6mit6 vendre des marchan- dises charg^es." The object of this article seems to have been to lay restraint on the master in ordinary cases ; yet the power of engaging the cargo is forbidden only condition- ally, and sub modo ; and from the manner in which it is men- tioned, it appears to have been considered as a more eligible mode of raising the necessary sums than an actual sale. In the same manner the *laws of Sweden, having forbidden the master to sell more of the cargo than should amount '- to a fourth part of the value of his ship, prescribe a punish- ment if he exceeds : " Si petulant! modo vendat vel oppignat navem et bona in universum, ille non modo tenebitur resar- cire exercitoribus et conductoribus omnia damna, sed etiam pro delicto suo plectetur :" Jus. Marit. Suec. tit. 4, c. 2, §§1,2. In the same manner later writers speak of the power of hypothecating the cargo in cases of need as the known law : Molloy, vol. i. p. 334. Bynkershoek, in a treatise 46, THE GRATITUDINE. on bottomry, describes it, " contractus quo tota navis et partes, et si hoc actum est, etiam onus pro pecunia erogata pignori ponitur. Hsec omnia obligavit magister et obligare potuit:" Q. Jur. Priv. 1. 3, c. 16. In the common law- books of this country it appears to have been the settled understanding of the Court of King's Bench in the begin- ning of the last century (Justin v. Ballam, 1 Salk. 34), and it is adverted to by modern writers of high authority, as continuing to be the law at this day : Park, p. 413^ In addition to these authorities, it is found to have been the constant practice of this Court to proceed upon such bonds ; and numerous instances are produced in a list that has been looked up since this question was first agitated, in which money has been paid out of the court on bonds enforced against the cargo. On these grounds, the bondholder having lent his money under a security sanctioned by all ancient principle, recognised by constant usage and practice, and not vitiated by any misconduct appearing in the transaction, is entitled to the authority of this Court to enforce the pay- ment of his debt. The King's Advocate, Lawrence, Bwahey, Adams, for the proprietors of the cargo. On a question of great importance to the mercantile world, in which the possible mischief arising from an abuse of the power contended for might be immense, it was to be expected that some very cogent and direct authority would have been produced in support of such a demand. Except- ing the list that has been extracted from the Registry, of which it does not appear that any one case was a contested case, it may be safely affirmed that nothing in the nature of a judicial precedent has been produced. It may be taken therefore as an admitted^ fact, that no such authority exists. To supply this deficiency, reference has been made to autho- rities of another nature, drawn indirectly from principles THE GRATITUDINE. 47 *which govern analogous cases, as they are called, and p^o , from the loose dicta of ancient foreign ordinances and writers on these subjects. Such authorities, at best, are but very unsatisfactory in cases of great importance. They will appear still further weakened by the observations that may be made upon them. The cases of ransom and jactus depend on other principles, arising out of urgent and instant danger, in which the titles of property are sacrificed, with every other consideration, to the preservation of human life. As to cases of authority exercised over the cargo, deliberately and in safety, in a foreign port, the utmost that is directly sanctioned is a power to sell a part ; but this arises from principles very different from those which have suggested this action, and leading to consequences very different from what the proprietors of this cargo will suffer if the demand can be maintained. The master is the appointed agent of the owner of the ship, and, as such, competent to bind him in many instances. lie is bound to consult the benefit of the owner of the ship as to the best means of accomplishing his voyage. The ordinance of the Hanse Towns, tit. 6, art. 2, Emer. v. 2, p. 432, contains a minute description of his duty in such situations, and, as we submit, prescribes the proper limitation of his power. If he is in want of repairs, "et istic loci nullum cambium ad exercitores transmittendum obtinere queat, aut etiam in navi nulla bona habeat, quae meliori cum commodo exercitorum, quam pecunia sub foenore nautico excepta vendere possit ; tumhoc in casu necessitatis, pro servanda navi et bonis, habeat potestatem, nomine uni- versorum exercitorum, tantum pecuniae sub foendre nautico accipiendi, quantum ad reparationem damni et alios similes casu necessitatis opus habet ; et taliter quicquid foenori ac- cepit, universi exercitores solvere tenebuntur." The whole of his discretion is supposed to be exercised fro meliori commodo exercitorum ; but he is not entitled to lay any bur- den on the owners of the cargo. If his ship is disabled by 48 THE GRATITUDINE. accident and storms from proceeding, he is not bound on their account either to tranship or to repair. It is said that he may repair or that he may tranship, but the law lays no obligation upon him to do either. If he judges it for the advantage of his owner, various modes of raising money are offered to him, and he may so far meddle with the cargo as to sell a part ; but not as agent for the proprietor, or as en- gaging him in the repair of the ship, but as making a forced loan as it is termed, for the benefit of his employer ; and for ^„r-, which the proprietor of the cargo is to *be ultimately indemnified, at the price at which the remaining ar- ticles sell at the port of their delivery. In no case was it designed that the proprietors of the cargo should suffer for the repairs of a ship to which they are strangers, and under the direction of a man for whom they are in no degree respon- sible. The sale of a part would be easily compensated to them by the value of the ship and freight ; and according to some ordinances, the master was himself personally liable to them: Em. v. 2, p. 445. Of a very different nature and extent is this power of hypothecating the whole cargo, by which the burden of repairing the damages of the ship may be, in the event, thrown upon the cargo; and by which all distinctions of general and particular average may be over- turned, and the whole expense be thrown as a particular average upon a person no way. interested in the vessel. Neither the Consolato nor any later codes mention such a power. If there are instances in which writers appear to attribute such a power to the master, they will be found to be instandes relating to cases where the master is also the consignee of his' owner, and the dominus mercium, as well as the master of the ship. There is a passage in Targa which points strongly to such a combination of interests, as necessary to support such an act of authority exercised by the master , over the cargo : — " Quando il capitano 6 esser- citori imbarcano robbe e merci di proprio conto, puono THE GRATITUDINE. 49 prender danari a cambio maritimo supra corpo o raerci giorir tamente, perch6 hanno la dispositione dell' una et 1' altra materia; ecchi le di, h^ hypotheca piu ampla " (c. 32,ii. 1. Eric, p. 477). When the interests were several, as the necessary interpretation of this passage seems to imply, no such power could exist to bind the property of another person. Byn- kershoek also, in the passage cited, seems to refer to a situa- tion where the ship and cargo belonged to the same person; at least it is far from appearing that he meant to assert that the master, qua master, was empowered to hypothecate the cargo of a general freighter for the repairs of his ship. Having been speaking of the origin of bottomry, and the simple form in which it continued till. the middle of the sev- ) enteenth century, as a power given to the master in distress to hypothecate the vessel : — " Ita tamenut duntaxat de navi dominus teneatur, non ultra," Bynkershoek goes on, "ad solos magistros, et solas, ut dixi, naves obligatas pertinebat hsec causa mutui sed deinceps protracta est ad exercitores sive dominos, et mox etiam ad dominos mercium." So far the powers are described severally according *to the p^j-op several interests. It is not said that by the latest ex- tension the master was considered as competent to bind the goods, OB dominus mercium. In a following passage, discuss- ing the personal responsibility of the master, he decides against it : " Nisi magister sit inter ipsos exercitores, vel onus pro parte ad ipsum pertineat." In this instance there was clearly a combination of interests, which, it is not im- probable, continued to be in the contemplation of the writer during the next page, from whence the passage cited on the other side is taken, if in fact the words "hcec omnia ohligare poiuit," are to include the onus mentioned in the preceding sentence. He had been just before referring to some case decided in the Council of Holland, in which the fact might be, that the master was part owner of the cargo; or perhaps, as is more probable, the cargo might not be amongst the 4 510 THE GKATITUDINE. things hypothecated; for he begins the whole paragraph, " Dixi et naves, et instrumenta navium pignori dari," advert- ing only to the ship; and he concludes immediately after the sentence relied on, " Hsec omnia instrumenta, salva cred- itoribus, non magistro vel exercitorihus; as if his considera- tion were directed solely to the case of hypothecation of ship and furniture. The other authorities that have been cited will be found in the same manner irrelevant. MoUoy relies entirely on the Article of Oleron, and far exceeds his authority in the dictum which he advances on the subject. In the same manner the citation from Salkeld is a mere dictum of the reporter, not suggested by any of the circum- stances of the case, now depending, as far as it appears, on anything that fell from the Court ; the same case being reported by Lord Raymond without any such observation. The passage from Mr. Parke rests solely upon Salkeld. The list that has been extracted from the Registry contains no in- stance of an adjudged case, and therefore cannot be conclusive. Upon this view of the argument, it is not too much to say that nothing has been produced that can have the force of direct authority to support this demand. It is in its conse- quence of momentous importance to the interests of com- merce; and may be pregnant with incalculable mischief, if a power so easy to be abused should fall into the hands of fraudulent and improvident persons. Arnold and Rohinson in reply. As far as the policy and probable effect of the law are to be considered, it would not be difficult to show that the power *371 ^'^ *er, 1843, and ending on the 24th day of September, in the year 1844, both days included." It was held by the House of Lords (aflSrming the decision of the Court of Exche- quer Chamber, reported 16 Q. B. 141 (71 E. C. L. R.), reversing the judgment of the Court of Queen's Bench), that there was no implied condition that the ship should be seaworthy on the day when the policy was intended to attach. "With regard to ooyage- policies," said Lord Campbell, C. J., "we have usage and authority establishing the implied condition as certainly as any point of insur- ance-law. These being wanting as to the extension of the doctrine to time-policies, the reasoning must be, that as far as this condition is concerned, the contract by time-policies rests on the same prin- ciples, and that no distinction can be made between them. The condition may have been implied in voyage-policies, from consider- ing that probably both the contracting parties contemplated the state of the ship when the risk is to begin ; that this state must bo sup- posed to be known to the shipowner ; that he has it in his power to put the ship into good repair before the voyage begins ; that to DIXON V. SADLEK. 175 prevent fraud, and to gaurd the safety of the crew and the cargo, this obligation ought to be cast upon him before he can be entitled to any indemnity in case of loss ; and above all, that this implied condition in .voyage-policies is essentially conducive to the object of marine insurance, by enabling the shipowner, on payment of an adequate premium, and acting with honesty and securing reasonable diligence, to be sure of full indemnity in case the ship should be lost or damaged during the voyage insured; but time-policies are usually eifected when the ship is at a distance, the risk being very likely to commence when it is actually at sea. Under these circum- stances, is it at all likely that either party would contract with ref- erence to the actual state of the ship at that time with respect to repairs and equipments? The shipowner probably knQ^ys as little upon this subject as the underwriter. Any information which he has received tending to show that the ship is in extraordinary peril he is bound to disclose, or the insurance effected by him is void ; but is it reasonable to suppose that he enters into a warranty or submits to a condition which may avoid the policy with respect to a state of facts of which he can know nothing ? We must further consider that this condition, in many cases, he may have no power to perform. Above all, if this condition was implied in time-policies, their object might often be defeated, andj,he shipowner, acting with all diligence and with the most perfect good faith, might altogether lose the in- demnity for which he had bargained." See also Michael v. Tred- win, 17 C. B. 551 (84 E. 0. L. R.). *Extrajudicial but conflicting opinions were also given in Gibson v. Small, both by the judges and the peers, as to the ■- question whether, in certain other cases, a warranty of seaworthi- ness might not be implied in time-policies; as, for instance, where a ship is about to sail from a given port on a voyage, or from the commencement of every voyage undertaken during the time for which the insurance is effected. And Lord St. Leonards expressed his opinion clearly to be, that "if a ship were about to sail upon a particular voyage, and a time-policy was effected instead of a policy on the intended voyage, a condition would be implied that the ship ' was seaworthy at the commencement of the voyage:" 4 H. L. Cas. 417. Lord Campbell, however, agreed with those of the judges who thought that in a time-policy '^ there is no implied condition what- ever as to seaworthiness." "I never for a moment," said his Lord- 176 WOOLEIDGE v. BOYDELL. ship, "could concur in the notion that there was an implied war- ranty that the. ship was seaworthy when it sailed on the voyage during which the policy attached. To lay down such a rule would, I think, be a very arbitrary and capricious proceeding, and being wholly unsanctioned by usage or by judicial authority, would be legislating instead of declaring the law. I likewise think that it would be very inexpedient legislation, as constant disputes would arise in construing the rule; for in filing adventures, and where ships are employed for years in trading in distant regions from port to port (the instances in which time-policies are chiefly resorted to), there would be infinite diflBculty in determining what was the com- mencement of the voyage during which the policy attaches. There would be a,sitni^ar difficulty as to the terminus ad quern, in consid- ering what the voyage truly is for which the ship must be fit. I have hesitated more upon the question whether, when a time-policy is effected upon an outward-bound ship lying in a British port where the owner resides, a condition of seaworthiness is to be implied. This might be an exception from the general rule, that in time-policies there is no implied warranty of seaworthiness, and it is free from some strong objections to the condition of seaworthiness being im- plied where the risk is to commence abroad. But in addition to the ' objection that as yet there has been no instance of an implied con- dition of seaworthiness in any time-policy, and that the gene'ral rule is against such a condition, this would be a gratuitous and judge-made exception to the rule. I think it more expedient that the rule should remain without any exception, and, as at present advised, I should decide against the implied condition in all cases of time-policies. There is a broad distinction which may always be observed between time-policies and voyage-policies ; but when you come to subdivide time -policies into such where the ship is in a British port and where the ship is abroad, and still more, if the *1331 '^®^'*^®°''^ °^ ^^^ shipowner is to be inquired *into and re- -^ garded, there would be a great danger of confusion being occasioned by the attempted classification. It is most desirable that in commercial transactions there should be plain rules to go by, without qualification or exception. Marine insurance has been found most beneficial, as hitherto regulated, and I am afraid of in- juring it by new refinements. I should be glad, therefore, that it should be understood, according to my present impression of the DIXON V. SADLEK. 177 law, that there is in all vot/age-polieies, hut that there is not in any time-policies framed in the usual terms, a condition of seaworthiness implied. This rule, I Relieve, is adapted to the great bulk of the transactions of navigation and commerce, and when any case occurs to which it is not adapted, this may be easily provided for by ex- press stipulation:" 4 H. L. Cas. 422. See also Thompson v. Hopper, E., B. & E. 1038 (96 E. C. L. R.), (reversing s. c, 6 E. & B. 172 (88 E. C. L. R)) ; Fawcus v. Sars- field, 6 E. & B. 202, in the Queen's Bench, Erie, J., dissentiente ; and see Jenkins v. Heycock, 8 Moore, P. C. 0. 351 ; Michael v. Tredwin, 17 C. B. 651 (84 E. C. L. R.) ; Biccard v. Shepherd, 14 Moo. P. C. C. 471. Where, however, a vessel insured by a time policy is sent to sea in a state not fit for the particular voyage, and, without encounter- ing any more than ordinary risk, is obliged, owing to the defective state in which she sailed, to put into port for repair, the shipowner, though the defects were not known to him, and he has acted without fraud, cannot recover against the underwriters the expenses of such repairs as were rendered necessary in consequence of the unsea- worthy state of the vessel, though there waS' no warranty of sea- worthiness : Fawcus v. Sarsfield, 6 B. & B. 192 (88 E. C. L. R.). So if a ship insured in a titne-policy, is knowingly sent to sea by the assured in an unseaworthy state, and is lost by means of the unseaworthiness, the assured ought not to be allowed to recover on the policy : per Cockburn, C. J., in Thompson v. Hopper, E. B. & E. 1054 (96 E. C. L. R.) ; and in order to constitute a defence in an action on such a policy, it is not necessary that the unseaworthi- ness should have been the proximate and immediate cause of the loss, provided it can be shown to have, been so connected with the loss as that it must necessarily have led to it : Id. It is difficult to lay down what amounts to seaworthiness ; it may perhaps be defined with sufficient accuracy, by saying that the ship ought to be in such a state of repair and equipment as will render her suitable for the voyage she is about to undertake. A want of seaworthiness may arise, either, first, from defects in the vessel itself; or, secondly, from the deficiency or incompetency of the master and crew. A ship will be considered as unseaworthy not only when her bull (Munro v. Vandam, Park on Insurance 469, 8th ed. ; Parker v. 12 178 WOOLRIDGE v. BOYDELL. *1341 ■^*'"*' ^ ^^^ ^^ ' ^^" ''' Morris, 1 Dow *32 ; Douglas v. ■' Scougall, 4 Dow 269), masts, or sails (Wedderburn v. Bell, 1 Campb. 1), are not such as are suitable for her destined voyage, that -is to say, well furnished, tight, sound, and strong; but also when her ground-tackling is not sufficient to encounter the ordinary perils of the sea ; and therefore when it appeared that the best bower-anchor was too light and the cable of the small bower-anchor wholly defective, it was held that the vessel was not seaworthy : Wilkie V. Geddes, 3 Dow 57 ; see also Harrison v. Douglas, 3 Ad. & E. 396 .(30 E. C. L. R.)- So also the vessel will not be seaworthy if she have not sufficient stores and supplies, or even sufficient medi- cines for the voyage (Woolf v. Claggett, 3 Esp. 257 ; and see Stew- art n. Wilson, 12 M. & W. 11), or if she be so heavily or so improperly laden as to be unable to encounter the voyage : Weir v. Aberdeen, 2 B. & Aid. 820. " The ship will not be considered seaworthy unless a master of rea- sonably competent skill is provided. Thus, in Tait v. Levi, 14 Bast 481, a ship was insured at and from Cork to the ship's loading port or ports on the coast of Spain, within the Straits of Gibraltar, in- cluding Tarragona, and not higher up the Mediterranean. The captain, through entire, ignorance of the coast, went to Barcelona, an enemy's port, which is higher up than Tarragona. It was held by the Court of King's Bench that there was a failure of the im- plied -warranty on the part of the assured, that a captain of compe- tent skill and knowledge for the declared purpose of the voyage should be provided. "On my present view of the case," said Le Blanc, J., "there appears to me to have been an incompetent fitting out of the ship with a proper master for the purpose of the voyage insured. The ship was to be fitted out in an adequate manner to secure her from going higher up the Mediterranean than Tarragona, according to the express intention of the parties : the owners should therefore have put on board a captain of sufficient skill to distinguish the port of Tarragona from the neighboring ports on the coast ; and if, from his not knowing one port from another, he goes into an enemy's port instead of the port of Tarragona, which it was his duty to distinguish under this policy, there appears to me -to be a want of sufficient skill in the captain and crew for the purpose of the voyage insured." It has even been decided that a ship was not seaworthy when she DIXON V. SADLER. 179 had sailed on a voyage from Mauritius to England without a person on board *ble to do the duties of the captain, on his becoming so ill as to be incompetent to continue in charge of the ship : Clifford V. Hunter, 1 M. & M. 103 (22 E. C. L. R.); s. c. 3 C. & P. 16 (14 E. 0. L. R.). The ship will not be seaworthy unless she is provided with a crew competent, in point of numbers and skill, to perform (Shore v. Bentall, 7 B. & C. 798 (14 E. C. L. R.)) and engaged for (Forshaw V. Chabert, 3 B. *& B. 158 (7 E. C. 'L. R.)) the whole p^^.gg voyage insured. The implied warranty will, as we shall elsewhere see, be satisfied if the crew be originally sufficient. See also and consider Bucks v. Thornton, Holt's N. P. Rep. 30 (3 E. C. L. R.). If a ship sail from a port where there is an establishment of pilots, and the nature of the navigation requires one, the vessel will not be seaworthy unless the master take a pilot on board (see Phillips v. Headlam, 2 B. & Ad. 383 (23 E. C. L. R.)) ; and according to the decision of Law v. Hollingsworth, 7 Term Rep. 160 (if it is still to be considered an authority, see ante, p. 129), if in the course of the voyage the master arrive in a port or place where a pilot is neces- sary, and take one on board, he ought not to dismiss him before the necessity has ceased. But if a vessel sails to a port where the establishment is such that it is not always possible to procure the assistance of a pilot before the vessel enters into the difficult part of the navigation, then, as the law compels no one to perform impossibilities, all that it can reasonably require in such a case is, that the master use all reason- able effi3rts to obtain one. If such efforts are used and fail of suc- cess, it is not material that in the exertise of his discretion in the navigation of the ship, in the absence of. a pilot, the master after- wards commits an error by which a loss is incurred, any more than if he does so in any other part of the voyage, always supposing that he is a person of competent skill and ability : Phillips v. Head- lam, 2 B. & Ad. 380, 384 (22E. C. K R.). Ordinarily the proof of want of seaworthiness falls upon the un- derwriter, inasmuch &a primd facie a ship will be deemed seaworthy (Parker v. Potts, 3 Dow 31, per Lord Eldon, C); but where the inability of the ship to perform the voyage becomes evident in a short time from the commencement of the risk, the presumption is 180 WOOLEIDGE v. BOYDELL. that it was from causes existing before her setting sail on her in- tended voyage, and that the ship was not then seaworthj;; and the onus prohandi in such a case rests with the assured, to show that the inability arose from causes subsequent to the commencement of the voyage. Per Eldon, C, in Watson v. Clark, 1 Dow Rep. 336 j and see Munro v. Vandam, Park on Ins. 469, 8th ed. ; Parker v. Potts, 3 Dow 23 ; Douglas v. Scougall, 4 Dow 269. Seaworthiness is a question peculiarly for the determination of a jury : Foster v. Steele, 3 Bing. N. C. 892 (32 E. 0. L. R.); Foster V. Alvez, Id. 896. As to the best evidence to be given of seaworthi- ness, see Thornton v. Royal Exchange Company, Peake 25 ; Beck- with V. Sydebotham, 1 Camp. 116 ; Burgess v. Wickham, 3 B. & S. 669 (113 E. C. L. R.). It may be here mentioned that the implied warranty of seaworthi- ness may be dispensed with, by the underwriters admitting the sea- worthiness of the vessel' insured, as when the policy contains a clause by which the vessel was " allowed to be seaworthy for the *1361 ^'^J^^^'-" Parfittt;. Thompson, 13 M. & *W. 392; Phillips -" V. Nairne, 4 C. B. 343 (56 E. C. L. R.). The warranty of seaworthiness which is implied as to the ship in an ordinary policy of marine assurance does not extend to lighters employed to land the cargo. Therefore where, there was a declara- tion on an ordinary policy on goods from Liverpool to Melbourne, "including all risk to and from ship," the policy to endure until the goods should be discharged apd safely landed at Melbourne, alleging damage by perils insured against, it was held that a plea that the damage happened after the goods had been discharged from the ship and while they were in a lighter for the purpose of being conveyed to the shore, and that the lighter was not seaworthy for the purpose,' and that the damage was caused solely by such unsea- worthiness, afforded no defence to the action : Lane v. Dixon, 1 Law Rep. C. P. 412. 4. Implied Warranty that the Ship shall he properly documented. — Another implied warranty on the part of the owner of a ship in- sured, is that it shall be provided with those documents which either the general law of nations or treaties with particular nations require. Thus, in Bell v. Carstairs, 14 East 375, a policy of insurance was effected by the plaintiffs, as agents for American citizens, on an DIXON V. SADLER. 181 American ship and her cargo, but no express warranty or repre- sentation was made that the ship or cargo were Americans. The Americans were then neutrals. The ship and cargo were captured by a French ship, and condemned in a French court as prize, upon the express ground, stated in the sentence of condemnation, that the ship was not properly documented according to the existing treaty between France and the United States of America. It was held by the Court of King's Bench that the neutrals assured could not recover their loss against the British underwriter, although there was no express warranty or representation that the ship was Ameri- can. "If," said Lord Ellenborough, C. J., "the condemnation has been occasioned by any act or neglect on the part of the assured, it would not be a loss against which the assurer would, upon any prin- ciple of reason or justice, as applied to this species of contract, be required to indemnify him. The indemnity stipulated on his part being only against the perils described in the policy, as far as they operate upon the property insured adversely, and not through the medium of any act or neglect on the part of the assured himself, producing the loss of the property insured. ... In a policy on . ship (and this, whether there is a warranty or representation re- specting the nation to which a ship belongs or not), as the shipowner is bound to have suoh documents as are required by treaties with particular nations on board, to evince his neutrality in respect of such nations ; the want of them in the event of capture, and when the production of them becomes necessary, is most material." *Although where there is an express warranty of the ship's national character, the underwriters will be discharged if L the ship be not properly documented at the time of sailing (Rich v. Parker, -7 Term Rep. 705), in the case of a mere implied warranty, the existence of the proper documents on board at the eommeneement of the voyage is immaterial, if they are produced at the time of capture: Bell v. Oarstairs, 14 Bast 393, 394. In determining whether a ship has been condemned by a foreign court for want of proper papers, the court will look into the alleged grounds of the foreign sentence as well as at the sentence itself (see Bell V. Carstairs, 14 East 374, 392, 394), and not, as in Christie v. Secretan, 8 Term Rep. 194, confine itself strictly to the sentence. There is no implied warranty on the pirt of the owner of goods that a ship shall be properly documented (Carruthers v. Gray, 8 182 WOOLKIDGE v. BOYDELL. Campb. 142; 15 East 35; Dawson?;. Atty, 7 East 367), for the owner of goods, it has been said, is not liable to suffer in respect of his insurance, on account of any defect in the documents belonging to the ship, with the procurement or existence of which he had no concern. Per Lord Ellenborough, C. J., in Bell v. Carstairs, 14 East 394. A similar argument might be used against a warranty of seaworthiness being implied on the part of the oiin&r of goods, but, as we have before seen, such implied warranty is fully estab- 'lished, ante 127. Where, however, the owner-of the goods insured is also owner of the ship, the warranty will be implied, so as to discharge the under- writers from all loss on account of the goods, if the vessel • be not properly documented : Bell v. Carstairs, 14 East 374. The implied warranty that a ship shall be propmy documented, will be satisfied if the ship have on board such documents as are re- quired, either by general international law, or by treaty between her own country and that of any other ship by which she may be captured. If therefore a ship has been condemned for a mere breach of a private ordinance of another country, the underwriters will not be discharged : Price v. Bell, 1 East 663 ; and sep Bell v. Bromfield, 15 East 368, per Bayley, J. A register is not a document required by the law of nations as evidence of a ship's national character ; unless therefore the posses- sion of one can be shown to be required by some treaty between the country of the captured ship and of the captors, the underwriters will not be discharged from their liability : Le Cheminant v. All- nutt, 4 Taunt. 367. When a ship carries simulated papers without the consent of the underwriters, the owner cannot recover from. them upon a loss by capture (Horneyer «. Lushington, 15 East 46 ; 3 Campb. 85; Fomin V. Oswell, 3 Campb. 357 ; 1 M. & Selw. 393), even though it appear, by the sentence of the foreign prize court, that one only of the causes stated for the condemnation was *the carrying of the simu- J lated papers : Oswell v. Vigne, 15 East 70 ; see also Steel v. Lacy, 3 Taunt. 285. Where, l).owever, by the terms of the policy, the assured has liberty to carry simulated papers, the underwriters will not be dis- charged from the loss, if the sentence of the condemnation of the ship appears to have been on account of her carrying simulated DIXON V. SADLER. 183 papers; or if that bircumstance, mixed up with other considera- tions, operated in proportion at all as the ground of the condemna- tion. Per Lord Ellenborough, C. J., in Bell v. Bromfield, 15 East 369. Tn every contract of insurance there is an implied warranty that the vessel is seaworthy ; if she be not so, the contract is void, and the premium is to be returned : Porter v. Bussey, 1 Mass. 435 ; Starbuck v. New Eng- land Ins. Co., 19 Pick. 198; Talcotw. Commercial Ins. Co., 2 Johns. 124; Talcot v.- Marine Ins. Co., Id. 130 ; American Ins. Co. v. Ogden, 15 Wend. 532 ; Warren v. United Ins. Co.,- 2 Johns. Cas. 231 ; M'Lanahan v. Universal Ins. Co., 1 Peters 183; Hudson v. Williamson, 3 Brevard 342; Common- wealth Ins. Co. u. Whitney, 1 Mete. 11. The implied warranty of sea- worthiness extends to the machinery of a steamer : Myers v. Girard Ins. Co., 2 Casey 192. The ship must have a crew adequate to man and sail her, and a competent master : Draper v. Commercial Ins. Co., 4 Duer (N. Y.) 234 ; s. C. 21 N. Y. 378 ; The Gentleman, Alcott Adm. 110 ; but need not have a ship's carpenter on board : Walsh v. Washington Ins. Co., 3 Robertson 202. It is sufficient on a question of seaworthiness, if the vessel was fit to perform the voyage insured as to ordinary perils ; the underwriters are bound as to extraordinary perils : Watson v. Ins Co. of North America, 2 Wash. C. C. 480. The law implies no warranty of seaworthiness except at the commence- ment of the voyage. Therefore where a vessel which has received damage from a peril insured against, puts into port to repair, the captain or agent who superintends the repairs is only bound to use due diligence. It is not necessary that the vessel should at all events be so repaired as to render her seaworthy: Peters v. Phoenix Ins. Co., 3 S. & R. 25. " When a ship which has received damage puts into port to repair, the captain or agent who superintends the repairs is bound to use due diligence. But it may be impossible to make a complete repair, either for want of materials or of skilful workmen or of accommodations for heaving the ship down in order to make a thorough search. * * *• The law implies no warranty of sea- worthiness except at the commencement of the voyage. To say therefore that a ship which has suiFered damage by a peril insured against, must at all events be so repaired at the port she puts into, as to render her sea- worthy, is to add to the contract a condition not contained in it :" Id., per Tilghman, C. J. ; Donnell v. Ins. Co. 2 Sumn. 366 ; Miller v. RusseH, 1 Bay 309 ; Martin v. Fishing Ins. Co., 20 Pick. 389 ; Copeland v. New England Ins. Co., 2 Mete. 432; Starbuck v. New England Ins. Co., 19 184 WOOLKIDGE v. BOYDELL. Pick. 198. Under a policy on unlimited time, the insurer is discharged if the vessel becomes unseaworthy : Cleveland v. Union Ins. Co., 8 Mass. 308. " It was the duty of the assured to keep the vessel tight, staunch, and strong; and if she stould become unfit from a want of seaworthiness, to commence and perform any voyage she might undertake, the under- writers would be discharged :" Id., per Sedgwick, J.; Hoxie v. Home Ins. Co., 32 Conn. 21. In the insurance of a vessel on time the warranty of sea- worthiness is complied with, if the vessel be in an unexceptionable con- dition at the commencement of the risk, and her being subsequently injured and not properly refitted at an intermediate port, does not discharge the insurer from subsequent loss, not occasioned by the omission : American Ins. Co. V. Ogden, 20 Wend. 287 ; Hathaway v. Sun Ins. Co., 8 Bosworth 33. In the case of Jones v. The Ins. Co., 2 Wallace, Jr. (C. C.) 278, Mr. Justice Grier followed the decision in Small v. Gibson, 4 H. L. 353. " The opinion of Baron Parke, which had the concurrence of the whole court, contains a full review of all the cases and arguments bearing on the sub- ject. This decision of a doubtful point is of the highest authority, and as I fully assent to the reasons on which it is founded, I consider it conclusive on the gdneral qijestion and shall therefore content myself by referring to that case, where the arguments on both sides of the question have been exhausted by the counsel and the court. It is true this case does not decide that there is no warranty of seaworthiness at all, in a time policy, or that there is not a warranty that the ship is or shall be seaworthy for that voyage, if the ship be then about to sail oil a voyage ; or if she be at sea, that she was not seaworthy when the voyage commenced. It may be true also that there is in a time policy, a warranty of seaworthiness at the commencement of the risk, so far as lay in the power of the assured to effect it, so that if the ship had met with damage before, and could have been repaired by the exercise of reasonable care and pains, and was not, the policy would not attach. But in all such cases the plea must set forth such facts and circumstances, as shall show either that at the time the insur- ance commenced, the ship was in her original port of departure, and com- menced her voyage in an unseaworthy condition and so continued till the time of her loss ; or that having come into a distant port in a damaged con- dition before or after the commencememt of the risk, where she might and ought to have been repaired, and the owner or his agents neglected to make such repairs, and the vessel was lost by a cause which may be attributed to / the insufficiency of the ship :" per Grier, J. It is the duty of the insured to keep the vessel seaworthy while the risk attaches, if he can do so ; and it seems the insurer will not be liable for a loss occasioned by an unreasonable neglect to keep her seaworthy : Paddock v. Franklin Ins. Co., 11 Pick. 227 ; see Gazzam v. Cincinnati Ins. DIXON V. SADLER. 185 Ins. Co., 6 Ham. 71 ; Copeland v. New England Ins. Co., 2 Mete. 432 ; Peters v. Phoenix Ins. Co., 3 S. & R. 25 ; Merchants Ins. Co. v. Sweat, 6 Wise. 670. Where the captain is the owner of a vessel insured, and the vessel becomes unseaworthy during the voyage and he neglects on reaching a port to have proper repairs made, and by reason of such neglect the vessel is afterwards lost on the voyage, the insurers are not responsible : Cudworth v. South Carolina Ins. Co., 4 Richardson (Law) 416. A vessel becoming unseaworthy during her voyage, is not a breach of the implied warranty; and of a neglect to keep her seaworthy, the insurer can take advantage only when a loss occurs therefrom : Starbuck v. New England Ins. Co., 19 Pick. 198. Overloading is not a breach of the implied war- ranty of seaworthiness, when the alleged unseaworthiness has supervened during the progress of the -voyage, and after 'the policy has already at- tached : Merchants Ins. Co. v. Butler, 20 Md. 41. If the ship is sea- worthy at the time of sailing it is not necessary that she be so at the inception of the risk : Taylor v. Lowell, 3 Mass. 331 ; Merchants' Ins. Co. V. Clapp, 11 Pick. 56 ; Paddock v. Franklin Ins. Co., Id. 227. On a policy " at and from " the warranty of seaworthiness attaches from the commence- ment of the risk. If between that time and the sailing of the vessel she becomes unseaworthy, the insurer is liable: Garrigues v. Coxe, 1 Binn. 592. Where a vessel springs a leak soon after she sails without apparent cause from the winds or waves, she will be presumed to have been unsea- worthy: Patrick v. Hallet, 1 Johns. 241; Talcot v. Commercial Ins. Co., 2 Id. 124; Talcott v. Marine Ins. Co.,. Id. 130; Patrick v. Hallett, 3 Johns. Cas. 76 ; Wallace v. Depau, 2 Bay 503 ; Miller v. South Carolina Ins. Co., 2 McCord 336; Watson v. Ins. Co. of North America, 2 Wash. C. C. 480; Wallace v. Depau, 1 Brevard 252; Cost v. Delaware Ins. Co., 2 Wash. C. C. 375. Where a vessel insured from New York to Bordeaux, after being out about thirty days was without firewood, oil, or candles, so that for want of necessary light, she was obliged to slacken sail at night and was retarded in her voyage, it was held that she was unseaworthy : Fontaine v. Phoenix Ins. Co., 10 Johns. 58. Seaworthiness of the hull is such a state of the hull as is competent to resist the ordinary action of winds and waves in the voyage for which it is insured. There. is no presumption that defects found to exist in the hull during the voyage, were produced by a peril of the sea. The burden is on the assured to prove this : Bullard v. Roger Williams Ins. Co., 1 Curtis C. C. 148. If a vessel not meeting with any storm or accident cannot reach her destination, the presumption is that she was unseaworthy : Myers v. Girard Ins. Co., 2 Casey 192. Although the unseaworthiness of the vessel occasioned by the want of men at the time the risk commences, may not vacate the policy, provided she is seaworthy when the voyage commences, yet she cannot go out of her course after the 186 WOOLRIDGE v. BOYDELL. commencement of the voyage, to supply such want: Cruder v. Pennsyl- vania Ins. Co. 2 Wash. C. C. 339. A non-compliance with the statute of the United States that every ves- sel hound on a voyage across the Atlantic, shall have on board a certain quantity of water, well secured under deck, under a penalty, does not ipso facto render the vessel unseaworthy, or the voyage illegal, so as to avoid a policy of insurance : Warren v. Manufacturers' Ins. Co., 13 Pick. 518; Deshon v. Merchants' Ins. Co., 11 Mete. 199. Under a Pennsylvania statute, which required the master of an outward bound vessel to take on board a licensed pilot, under a penalty, a policy was not avoided by the master's refusing to receive a pilot on board, although the loss occurred on pilot ground : Flanigan v. Wash. Ins. Co., 7 Barr 306. If a vessel is unseaworthy when she starts on her voyage, it is a suffi- cient defence to the insurers though she arrives in safety at the end of it : Prescott V. Union Ins. Co., 1 Whart. 399. ^ The question of seaworthiness is one of fact for the jury : Chase v. Eagle Ins. Co., 5 Pick. 51 ; Patrick V. Hallett, 1 Johns. 241 ; McFee v. South Carolina Ins. Co., 2 McCord 503 ; Prescott v. Union Ins. Co., 1 Whart. 399 ; Union Ins. Co. v. Cald- well, Dudley 263 ; Fuller v. Alexander, 1 Brevard 149 ; Hudson v. Wil- liamson, 3 Id. 342. Any deviation from the usual course of the voyage without a justifiable necessity discharges the underwriters, although the loss was not thq imme- diate consequence of the deviation : Martin v. Delaware Ins. Co., 2 Wash. C. C. 254; Himely v. South Carolina Ins. Co., 1 Rep. Const. Ct. 154; Stetson V. Massachusetts Ins. Co., 4 Mass. 330; Brazier v. Clap, 5 Id. 1 ; Coffin -u. Newberryport Ins. Co., 9 Id. 436 ; Stocker v. Harris, 3 Id. 409; Kittell v. Wiggin, 13 Id. 68; Vos v. Eobinson, 9 Johns. 192 ; Rob- ertson V. Columbian Ins. Co., 8 -Id. 491; Duerhagen w. United States Ins. Co., 2 S. & R. 309; Tenet v. Phoenix Ins. Co., 7 Johns. 363; Natchez Ins. Co. v. Stanton, 2 Sm. & M. 340 ; (jaryan v. Ohio Ins. Co., Wright (Ohio) 202 ; Jolly v. Ohio Ins. Co., Wright (Ohio) 539 ; Child V. Sun Mutual Ins Co., 3 Sandf. S. C. 26. A deviation, owing to stress of weather, unavoidable accidents, or with a view to avoid the enemy, or the like, does not make a policy void : Miller v. Russell, 1 Bay 309 ; Campbell v. Williamson, 2 Id. 237. It seems that it is not a deviation for a vessel , driven into a port by stress of weather, to proceed in good faith for repairs to a neighboring port, where the owners reside, though she might have been repaired at the first port : Seiloway v. Neptune Ins. Co., 12 Gray 73. The mere apprehension of danger, not founded on reasonable evidence, will not authorize a deviation ; it must be imminent and obvious : Eiggin v. Patapsoo Ins. Co., 7 Har. & Johns. 279. If a vessel being pursued by a cruiser, put into an intermediate port to avoid the danger of capture, it is DIXON V. SADLEE. 187 not a deviation : Post v. Phoenix Ins. Co., 10 Johns. 79; Suydam v. Ma- rine Ins. Co., 2 Johns. 138; Whitney v. Haven, 13 Mass. 172; Goyon v. Pleasants, 3 Wash. C. C. 241. If the master, in departing from the usual course of the voyage from necessity, acts bond fide and according to his best judgment and has no other view but to conduct the vessel by the safest and shortest course to her port of destination, what he does is withjn the spirit of the contract of insurance, and the voyage will be protected by it : Turner v. Protection Ins. Co., 25 Maine 515. A delay or deviation to save lives, which are in jeopardy, is no devia- tion; but to save property it is otherwise; The Boston, 1 Sumn. 328; The Henry Ewbank, Id. 400 ; Little v. St. Louis Ins. Co., 7 Missouri 379 ; Walsh V. Horner, 10 Missouri 6; Bond v. Cora, 2 Wash. C. C. 80. "If the object of the deviation be to save the life of a man, I will not be the first judge to exclude such a case from the exceptions to the general rule. The humanity of the motive and the morality of the act give it a strong claim to indulgence ; but after this object is effected, if the stoppage be continued or the risk increased, by adding to the cargo, diminishing the crew or by other means for the purpose of saving the . property found, I think the underwriters are discharged. For let me ask, if salvage be allowed to the owner in consideration of the risk to which his property is exposed, where is the risk if he be insured? and if the act which produces the increased risk, do not discharge the underwriters, upon what fair prin- ciple shall they take all the risk and the insured receive all the reward :" per Washington, J., Id. Deviation to put the ship under convoy is allowed : Patrick v. Ludlow, 3 Johns. Cas. 10 ; Snowden v. Phoenix Ins. Co., 3 Binn. 457. A voluntary deviation to avoid a peril not insured against, discharges the insurer: Breed v. Eaton, 10 Mass. 21. If after sailipg a vessel stop at a port for more men it is a deviation, unless such a general usage is shown that the parties must have intended a reference to it : Folsom v. Mercantile Ins. Co., 38 Maine 414 ; Creeder v. Penn. Ins. Co., 2 Wash. C. C. 339. As to when delay in port will constitute deviation : see Earl v. Shaw, 1 Johns, Cas. 313 ; Stocker v. Harris, 3 Mass. 409 ; Seamans v. Loring, 1 Mason 127; Oliver v. Maryland Ins. Co., 7 Cranch 487; Suydam v. Ma- rin« Ins. Co., 2 Johns. 138; Gilfort v. Hallet, 2 Johns. Cas. 296; Kings- ton V. Girard, 4 Dall. 274; Lawrence v. Ocean Ins. Co., 11 Johns. 241; Kane v. Columbian Ins. Co., 2 Johns. 264; Columbian Ins. Co. v. Catlett, 12 Wheat. 384; Wiggin v. Amory, 13 Mass. 118. A mere intention to deviate where the vessel is lost before arriving at the dividing point will not avoid the insurance : Marine Ins. Co. v. Tucker, 3 Cranch 357 ; Thompson v. Barker, -1 Root 64 ; Lee v. Gray, 7 Mass. 349 ; Coffin v. Newburyport Ins. Co., 9 Id. 436 ;, Hobart v. Norton, 8 Pick. 188 WOOLRIDGE v, BOYDELL. 159 .; Henshaw v. Marine Ins. Co., 2 Caines 274 ; Lawrence v. Ocean Ins. Co., 11 Johns. 241. If a vessel sail to a port within the policy with intent to go to a port not within the policy, in case the former should be blockaded, this is not a deviation : Maryland Ins. Co. v. Wood, 6 Cranch 29. It is not a deviation within the meaning of that term as used in policies of insurance, if a steamboat engaged in river navigation follows a route less frequented than some others: Fireman's 'Ins. Co. v. Powell, 13 B. Mon. 311. Where the voyage is to several places, if the insured intend to go but to one of them, that one is at his election ; but if to more than one, the order prescribed in the policy must be observed : Kane v. Columbian Ins. Co., 2 Johns. 264. Where a voyage was described in a policy as at and from A. to B. or C, it does not authorize the vessel to go to both ports : to do so is a deviation, unless sustained by a usage generally known : Buckley v. Pro- tection Ins. Co., 2 Paine C. C. 82. A policy on a vessel " at and from" an island, protects her in sailing from port to porf of the island to take in her cargo : Dickey v. Baltimore Ins. Co., 7 Cranch 327. Liberty to touch at a place does not .justify trading there ; it will be a deviation : United States V. Shearman, Peters C. C. 98. The protest of the master and mariners is complete evidence to prove the necessity, which justifies a deviation : Campbell v. Williamson, 2 Bay 237 j Brown v. Grirard, 1 Binn. 40. Where the national character of a vessel is not warranted or represented, it is not incumbent on the assured to show that he had a sea letter or other papers required by the laws of the country or by treaties with foreign nations : Etting v. Scott, 2 Johns. 157. " I very much doubt, whether it be a part of the implied warranty of seaworthiness that a vessel shall have her proper documents on board. There is no case that goes to that length. These documents are. only material when the national character of the ves- sel is warranted or represented. The sea letter and other documents could only have been required to protect the vessel as a neutral, but it was no part of the contract that she was to sail in that character A vessel may be competent to "perform the voyage insured without the posses- sion of these documents ; and although we do not profess to declare a very strong opinion on this point, we are inclined to think that the want of those documents could not have furnished to the plaintiff a valid defence against the policy :" per Kent, C. J., Id. ; PoUeys v. The Ocean Ins. Co., 2 Shep. 141. Where a loss by capture of a neutral ship arises from the negligence of the master in leaving the ship's register, &o., on shore, the underwriters are not liable : Cleveland v. Union Ins. Co., 8 Mass. 308. In the case of a ship warranted 'Neutral " it is a settled rule, that the assured, in order to comply with his warranty, must not only maintain DIXON V. SADLER. 189 the property to be neutral, but so conduct himself toward the belligerent parties as not to forfeit his neutrality. He must pursue the conduct and preserve the character of a neutral ; and for that purpose must furnish himself and keep in his possession the ordinary evidence of his neutrality ; unless deprived of it by some inevitable misfortune:" per Sedgwick, J., Id. 190 ROUX D. SALVADOR. *139] ROUX V. SALVADOR. In the Exchequer Chamber, Mich. Term., 7 Will. IV., Nov. 15, 1836. [Reported 3 Bingh. N. C. 266 (32 B. C. L. E.).] Insurance. — Total Loss. — Abandonment.] — Hides insured from Valparaiso to Bordeaux free of particular average, unless the ship were stranded, arriving at Rio Janeiro, on their way to Bordeaux, in a state of incipient putridity, oc- casioned hy a leak in the ship, were sold for a fourth of their value at Rio, because by the process of putrefaction they would have been destroyed before they could have arrived at Bor- deaux. The assured received the news of the. damage to the hides and of their sale at the same timp : Held, that the as- sured might recover as for a total loss without abandonment. Assumpsit on a policy of assurance, subscribed by the de- fendant for 200?. Plea, non-assumpsit. By a special verdict it was found in substance that the policy on which the action was brought was effected on goods per the "General La Fayette," and other ship or ships, at and from, among other ports or places in the Pa- cific ocean, Valparaiso, to any port or ports in Prance and the United Kingdom of Great Britain, with leave to touch and trade in any place in America or anywhere else, to effect all transshipments, and including the risk of craft to and from the vessel or vessels. The usual perils were in- sured against, and the policy, which was for 700?., had the following memorandum subscribed: — "N. B. Corn, fish, salt, fruit, flour, and seed, are warranted free from average, ROUX V. SALVADOR. 191 unless general, or the ship be stranded. Sugar, tobacco, hemp, flax, hidfes, and skins are warranted free from average under five per cent. ; and all other goods ; also the ship and freight are warranted free from average, under three per cent., unless general, or the ship be stranded." The policy was declared to be upon goods, specie, or bullion, as interest *might appear, to pay average on each species of goods by following landing numbers of the value of 100^. •- each, as if separately insured. Cocoa and hides free of par- ticular average unless the ship were stranded: in cases of aver- age on the hides the assurers were to pay the expense of washing and drying in full. Under this policy the plaintiff, on the 6th. of May, 1831, caused to be shipped on board the ship " Roxalane," at' Val- paraiso, for Bordeaux, in France, 1000 salted hides of the value of 1117/., his property, which hides were intended to be insured by the said policy, and were duly declared there- upon, and a bill of lading duly signed by the captain in the ordinary form. On the 13th of May, 1831, the said ship being seaworthy, with the said 1000 hides, and other hides on board thereof, set sail from Valparaiso aforesaid, on her said voyage to- wards Bordeaux. On the 5th of June, 1831, in the course of her said voyage, the said ship, with the said goods thereof, encountered bad weather, and sprung a leak; and it thereby became necessary, for the safety of the ship and cargo, that the said ship should put into a port for repair; and the said ship did accordingly put into Rio de Janeiro, in Brazil, being the nearest port for repair.. On the 7th of July, 1831, the whole of her cargo was there landed, and it was then found that the said hides were damaged by the said perils and dangers of the seas, as fol- lows, that is to say, that they had been washed or wetted by the sea-water which had entered into the vessel through the said leak, and also by the effect of the dampness pro- 192 KOUX V. SALVADOK. duced in the hold by the leak; and in consequence thereof a partial fermentation ensued, the progress of which could not be stopped by any means practicable in Rio de Janeiro; and in consequence of the progressive putrefaction of the said 1000 hides, it was impossible to carry them, or any fart thereof, in a saleable state to the termination of the voyage for which they were insured: if it had been attempted to take them to Bordeaux, they would by reason of such progres- sive putrefaction as aforesaid, have altogether lost the charac- ter of hides before they arrived there. On the 27th of August, 1831, at Rio de Janeiro, the said 1000 hides in the said policy mentioned, according to the ordinances of the French consul-generail there, were sold by public auction for the gross sum of 273^.; the same were bought by the purchasers for the purpose of being tanned, and were tanned accord- ingly. The ship "Roxalane" being repaired and the leak stopped which was in her bottom, she, on the 3d of October, ^-j .-.-, 1831, sailed from *Rio de Janeiro without the said hides in the said policy mentioned, but with such part of her cargo reloaded on board as had not been sold ; and in the course of her voyage from Rio de Janeiro to Bordeaux, was stranded at the entrance of the river Garqnne, on the 29th of December, 1831. The earliest intelligence of the damage a,nd of the sale of said 1000 hides was re- ceived at the same time by Messrs. Devaux and Company, the agents for the said plaintiff, by a letter from Bordeaux. The Court of Common Pleas, after two arguments, having given judgment for the defendant (see 1 New Cases 526), the cause was removed by error into the Exchequer Cham- ber, where it was argued in Easter vacation, 1836, by Maule for the plaintiff, and the Attorney-General for the defendant. Maule for the plaintiff. First, there has been such a stranding of the ship as to entitle the plaintiff to claim and recover an average loss. KOUX V SALVADOR. 193 The condition in the policy must be taken strictly, and the insurer having consented to abide by it without qualification, it is immaterial whether the stranding was connected with the loss or not. Thus, in gurnet v. Kensington (see 7 Term Rep. 210), upon a similar condition, the ship having been stranded in the course of the voyage, the underwriters were held liable for an average loss arising from the perils of the seas, though no part of the loss arose from the act of strand- ing; and so strictly has such a condition been construed, that a loss occasioned by the stranding of a lighter in conveying goods from the ship has been held not to be a stranding of the ship within the meaning of the condition t Hoffman v. Marshall, 2 New Cases 383 (29 E. C. L. R.). Secondly, there was a total loss of such a nature as, whether actually or only constructively total, to render un- necessary a notice of abandonment. Such notice was unnecessary, because notwithstanding a portion of the goods remained in an altered shape, upon the sale of them the adventure was at an end. The Court be- Idw, in deciding that notice of abandonment was necessary, relied mainly on Mitchell v. Edie, 1 Term Rep. 608 ; All- wood V. Henckell, Park, Ins. 280 ; and Hodgson v. Blackiston,, Park, Ins. 281. In the two first of these cases the sale was not rendered necessary by perUs insured against, and in neither of them was the state of circumstances before the sale such as to make the prosecution of the adventure im- possible, *and to amount to a total loss, independently p^, , ^ of the assured choosing to treat it as such ; conse- quently if there had been no sale, a notice of abandonment would clearly have been necessary. In the third of those cases it is not stated what was the nature of the loss ; the report only states that notice of abandonment was held neces- sary, though the ship and cargo had been sold and converted into money when the notice of the loss was received. It therefore only amounts to an authority that the sale of the 13 194 EOUX V. SALVADOR. ship and cargo does not of itself render unnecessary a notice of abandonment ; a proposition which is not denied by the plaintiff in this cause. The three cases are all of them con- sistent with the proposition contended for by the plaintiff, that where a loss is of itself total, independently" of the election of the assured, that is, where the subject of the in- surance is placed, by the peril insured against, in a situation which renders the prosecution of the adventure impossible, notice of abandonment is not necessary. The cases referred to only establish the proposition not inconsistent with the preceding, that where the perils insured against have re- duced the subject of insurance to such a state as not to render the adventure impossible, but to give the assured a right, by notice of abandonment, to throw it upon the un- derwriters ; and when the loss therefore is only total at the election of the assured, and a notice of abandonment is neces- sary to show that he elects so to treat it, a sale will not ex- cuse the want of such notice. Those cases therefore are not authorities for the doctrine in support of which they are cited by the Court of Common Pleas, and the case of Cam- Iridge v. Anderton, 2 B. & C. 691 (9 B. C. L. R.), 1 Car. & P. 215 (12 E. C. L. R.) (in which Hodgson v. Blackiston was cited), is directly in point in favor of the plaintiff. There the ship having got on rocks, and experienced. persons giving it as their opinion that the expenses of getting off and re- pairing her would exceed her value when repaired, the cap- tain sold her; and it was held that the assured might recover for a total loss, without abandonment, notwithstand- ing the purchaser afterwards got her off and dispatched her on a voyage to England. The Court below, however, relied on principle as well as on authorities, and the reasoning of the Court amounts to this : that an abandonment is neces- sary, because it would be convenient for the underwriter to have early notice of the intention of the assured to call upon him, in order that he may the better prepare his de- KOUX V. SALVADOR. 195 Tence, or exercise the rights belonging to him as an under- writer with respect to the subject insured. This would ipply to make a notice of abandonment necessary in all "cases whatever of total loss, and an early notice of r^-iAo slaim ift all cases of partial loss ; and indeed to re- ijuire a prompt notice in all cases, whether arising out of sontracts of insurance or not, where the defendant might be prejudiced by delay, an object which the Legislature must be taken to have provided for by the Statute of Limitations. The necessity of notice of abandonment, however, does not rest on this principle, but arises out of the'election which the issured has in certain cases to treat the loss as an average loss and to carry out the adventure, or to throw the risk on the underwriters by notice of abandonment ; and where the perils insured against have rendered such an election impos- sible, no notice of abandonment is necessary. In Read v. Bonham, 3 B. & B. 147 (7 E. C. L. R.), a notice of aban- donment having been given, which the Court held sufficient, the plaintiff was not called upon to contend it was unneces- sary ; and in Parry v. Aberdein, 9 B. & C. 411 (17 E. C. L. R.), the plaintiffs having heard of the destruction of the ship before they heard of the subsequent occurrences, were bound to abandon if they meant to claim for a total loss. On the other hand, in Doyle v. Dallas, 1 Moo. & Rob. 48, the want of notice of abandonment appears to have been bhought immaterial; in Robertson v. Clarke, 1 Bing. 445 (8 E. C. L. R.), where the ship was sold, and a total loss re- 30vered, there does not appear to have been any notice of ibandonment; in Mullett v. Shedden, 13 East 304, it is ad- mitted that abandonment is not necessary where goods are sold by the Court of Admiralty ; and in Cologan v. London Assurance Company, 5 M. & S. 447, Abbott, J., says, "Aban- ionment excludes any presumption which might have arisen irom the silence of the assured that they meant to adhere ;o the adventure." Here it is impossible to suppose the as- 196 ROUX V. SALVADOR. sured could mean to adhere to the adventure when he knew the result was ascertained by a sale of which he had received the proceeds. Sir J. Campbell, Attorney-General, contrh. — 1st. There was no stranding for which the underwriter is liable. The stranding intended by the parties must be a stranding in the course of the adventure. A stranding before or after the adventure is wholly unconnected with it, and not within the meaning of the policy Some limitation must be put on the ' time with respect to which the underwriter's liability is to attach, as the liability in respect of the goods commences with their being put on board; so it ceases on their being safely landed. *14.4l *2dly. This was not a total loss, for though the' hides were damaged, they still existed as hides, were sold as such, and if tanned, might have been carried to Bor- deaux. There would not have been a total loss, therefore, even if the goods had not been excepted by the memoran- dum ; but being so excepted h fortiori, they could not be deemed totally lost so long as any of them remained in specie at the termination of the risk, when they were landed at Rio de Janeiro. The assured cannot by a premature sale throw on the underwriter a liability as for a total loss. In Dpson V. Rowcrofl, 3 B. & P. 474, on which the Court of Common Pleas relied, there was an actual total loss by the article being thrown overboard ; and Manning v. Nunham, 3 Dougl. 130 (26 E. C. L. R.); Park, Ins. 260; 2 Campb. 624 n., where the possibility of a salvage was held not to exonerate the underwriter, is much shaken by Glennie v. London Assurance Cmipany, 2 M. & S. 371, where the un- derwriter was discharged, because the goods, although sold for less than their freight, might have been transmitted to their destination. In Hunt v; Royal Exchange Assurance Company, 5 M. & S. 47, it was held that a loss of voyage for ROUX V. SALVADOR. 197 the season by perils of the sea was not a ground of aban- donment upon a policy of goods with a clause of warranty free from average, as where the cargo was in safety, and not of such a perishable nature as to make the loss of a voyage a loss of the commodity, although the ship were rendered incapable of proceeding on the voyage. In Thompson v. Royal Exchange Assurance Company, 16 East 214, where the ship was wrecked, but the goods were brought on shore, though in a very damaged state, so that they became un- ' profitable to the insured, it was held that the underwriters on the goods, who were freed by the policy from particular average, could not be made liable as for a total loss by a notice of abandonment. And Lord EUenborough said, "All the goods w'ere got on shore and saved, though in a damaged state. If this can be converted into a total loss by notice of abandonment, the olause excepting underwriters from particular average may as well be struck out of the policy. "We can only look to the time when the loss happened and the goods were landed ; and then it was not a total loss, however unprofitable they might afterwards be." And that decision is confirmed by M'Andretos v. Vaughan, Park, Ins. 185. In Anderson v. Wallis, 2 M. & S. 240, copper and iron was insured from London to Quebec, warranted free from particular average ; the ship was driven into Kinsale, and being detained for repairs, so that *she could not pro- r*-| j^^ ceed to Quebec that season, the iron, which was greatly damaged, and the copper were sold ; but notwith- standing the ship had lost her voyage, the loss of the goods was held not to be total. So here, though the destined market for the hides was lost, the hides remaining in specie, the loss was not total. Lastly, in order to enable the assured to recover, an aban- donment was necessary, and the cases relied upon in argu- ment and by the Court below, to which may be added An- derson v. Royal Exchange Company, 7 Bast 38, are not 198 EOUX V. SALVADOK. outweighed by Cambridge v. Anderton and Mullett v. Shedden, — ^the only conflicting decisions which bear upon the point. The authority of Cambridge v. Anderton is weakened by the language of Bayley, J., in Gardner v. Salvador, Moo. & Rob. 116; but in Cambridge v. Anderton, as well as in Mullett \. Shedden, abandonment was not necessary, because the loss was indisputably total. If according to Mitchell v. Edie, Allwood v. Henckell, and Hodgson v. BlacMston, a sale does not end the adventure so as to exonerate the assured from giving notice of abandonment, neither will the receipt ' of the money nor the intelligence of sale coming at the same time as the intelligence of the loss : that does not carry the matter further than the sale. Here the money produced by the sale of the hides became vested in the assured; he has a right to keep it, and if he thought fit, to treat the loss as partial; and whenever the assured may treat a loss as par- tial, an abandonment is necessary to make it a total loss. _ Maule was heard in reply ; and with respect to Hunt v. Roi/al Exchange Assurance Company, Thompsons. Royal Ex- change Assurance Company, and Anderson v. Wallis, observed that the goods were not of such a nature or damaged in such a way as to render it impossible, as in the present case, to forward them to their original destination. Cur. adv. vult. Lord Abingee, C. B. — This was a writ of error upon the judgment of the Court of Common Pleas, in an action on a policy of insurance upon goods by the " Roxalane" at and from any ports or places in South America to a port in France or in the United Kingdom, with various liberties not material to be mentioned. By a written memorandum at the foot of the policy, the insurance was declared to be on hides shipped at Valparaiso, /ree of average, unless the ship should be strand- *1461 ^^' ^"^^ ^" ^^^^ ^^ average loss the *underwriters -I were to pay the' expenses of washing and drying in ROUX V. SALVADOR. 199 fall. The declaration contains the usual averments, and states that the hides were shipped at Valparaiso, that the vessel set sail with them on hoard for Bordeaux, a port in France, and that in the course of the voyage the hides became lost by the perils of the sea, and never arrived at Bordeaux. The plea is the general issue. It appears by the record, that the cause was tried and a special verdict found, which after stating the facts necessary to support those parts of the declaration upon which no question arises, sets forth the loss in substance as follows : " That the hides of the value of 1000/. having been shipped in the vessel, she set sail on her voyage, in the progress of which she encountered perils of the sea and sprang a leak, in consecLuence of which she was compelled to put into Rio Janeiro, being the nearest port; that her cargo was taken out and landed, when it was found, as the fact was, that the hides were damaged by the perils of the sea, and by reason of their being wetted by the water issuing through the leak, and of the consequent dampness of the hold, they were undergoing a process of fermentation, which could not be checked; and that, in consequence of their progressive pu- trefaction, it was impossible to carry them or any part of them in a saleable state to the termination of the voyage^ and that if it had been attempted to take them to Bordeaux, the_y would in consequence of the putrefaction have lost the character of hides before their arrival. The special verdict further states that the hides were in consequence sold at Rio Janeiro, by order of the French Consul there, for the sum of 270/. ; that they were purchased to be tanned, and were afterwards tanned. That the ship being repaired, set sail for Bordeaux, and was stranded upon entering the Garonne; and that the earliest intelligence of the damage and the sale i were received at the same time in a letter from Bordeaux. The judgment is entered for the defendant, to set aside 200 KOUX V. SALVADOR. which judgment this writ of error is brought. The strand- ing of the vessel upon entering the river Garonne, in her passage to Bordeaux, is introduced into the special verdict with a view to meet the supposed case of a partial loss ; and it has been contended, that the fact of stranding being a condition to let in the claim for a partial loss, it is not material whether the stranding takes place whilst the goods- insured are on board or after they have been landed. We are not prepared to adopt that conclusion, but the view we *li71 *^^^ ^^ ^^^ ^^^^ render it unnecessary to enter into any discussion of the' argument or to pronounce any opinion upon it. It appears from the report of the judgment of the Court of Common Pleas upon the case, that the learned judges were of opinion that there was a constructive total loss in case it had been followed by an abandonment to the under- writers, and that their judgment for the defendant was grounded upon the want of such an abandonment. It has been urged before us in support of the judgment, first, that there was no total loss ; secondly, that if there were any circumstances which might have amounted to more than an average or partial loss, they were not such as without an abandonment could have been converted into a total loss. Upon the first point it has been contended, that even if these goods had not been excepted from the average loss by the memorandum unless upon the condition of stranding, there, would not in this case have been a total loss, and that fortiori being goods so expressly excepted from average loss by the memorandum, they could not become totally lost so long as any part of them remained in specie at the termL nation of the risk ; that the risk terminated when the goods were taken out at Rio de Janeiro, when they were so far from being distroyed by the perils of the sea that they were actually sold as hides and were capable of being tanned. It appears to us that there is no ground whatever for this as- ROUX V. SALVADOR. 201 sumed distinction between goods that are subject to a partial loss unconditionally and goods excepted by the memorandum from such loss. The interest which the assured may have in certain cases to convert a partial loss into a total loss, may be a fair argument to a jury upon a doubtful question of fact as to the nature of the loss or the motive for an abandonment, and in the same view that interest has been adverted to occasionally by judges where the conclusions to be drawn were from facts upon a special case, or upon a motion for a new trial, were open to discussion. But there is neither authority nor principle for the distinction in point of law ; whether a loss be total or partial in its nature must depend upon general principles. The memorandum does not vary the rules upon which the loss shall be partial or total ; it does no more than preclude the indemnity for an ascer- tained partial loss, except pn certain conditions. It has no application whatever to a total loss or to the principle on which a total loss is to be ascertained. Dismissing this distinction, then, the argument rests upon the position that if at the termination of the risk the goods remain in *specie, however damaged, there is not a p^., , „ total loss. Now the position may be just, if by the *- " termination of the risk " is meant the arrival of the goods at their place of destination according to the terms of the policy. But there is a fallacy in applying these words to the termination of the adventure before that period by a peril of the sea. The object of the policy is to obtain an indemnity for any loss that the assured may sustain by the goods being prevented by the perils o^ the sea from arriving in safety at the port of their destination. ' If by reason of the perils insured against, the goods do not so arrive, the risk may in one sense be said to have terminated at the moment when the goods are finally separated from the vessel, whether upon such an event the loss is total or partial on doubt depends upon circumstances. But the existence of 202 KOUX V. SALVADOE. the goods, or any part of them, in specie, is neither a con- clusive nor in many cases a material circumstance to that question. If the goods are of an imperishable nature, if the assured become possessed or can have the control of them, if they have still an opportunity of sending them to their destination, the mere retardation of their arrival at their original port may be of no prejudice to them beyond the ex- pense of reshipment in another vessel. In such a case the loss can be but a partial loss, and must be so deemed even though the assured should, for some real or supposed advan- tage to themselves, elect to sell the goods where they have been landed, instead of taking measures to transmit them to their original destination. But if the goods once damaged by the perils of the sea, and necessarily landed before the termination of the voyage, are by reason of that damage in such a state, though the species be not utterly destroyed, that they cannot with safety be reshipped into the same or any other vessel, if it be certain that, before the termination of the original voyage, the species itself would disappear, and the goods assume a new form, losing aU their original char- acter, if, though imperishable, they are in the hands of strangers not under the control of the assured, if by any circumstances over which he has no control, they can never or within no assignable period be brought to their original destination, in any of these cases the circumstance of their existing in specie at that forced termination of the risk is of no importance. The loss is in its nature total to him who has no means of recovering his goods, whether his inability arises from their annihilation or from any other insu- perable obstacle; Accordingly in the case of Hunt and Others *149] *^' ^^^ ^^y^^ Exchange Assurance, 5 M. & S. 47, which was cited by the Attorney-General in support of his argument, the judgment of Lord EUenborough con- tains a very important passage, which distinguishes it from the present case. He says, " If indeed the cargo had been ROUX V. SALVADOR. 203 of a perishable nature, this would not have been a case of retardation only, but of destruction of the thing assured ;" and further he says, " I cannot necessarily infer that the flour would be changed in quality and condition by the delay from November to April, so as to incur any material damage operating a destruction of the thing insured." In the case of Anderson v. Wallis, 2 M. & S. 240, which was also relied upon, the goods consisted of copper, which was wholly uninjured, and of iron, which was partially damagad. The assured by their own agent had possession of them, the ship was capable of repair, and might have prosecuted, and did, in four weeks after the accident, sail upon another voyage ; the only pretence for a total loss was the retardation of the voyage, upon which ground combined with the other cir- cumstances, the Court held the loss npt to be total. But it is clear from the judgment of the Court, that if by reason of the perils of the sea the goods could never have been sent to their destination, the loss would have been held to be total. In like manner it will be found in the other cases cited upon this part of the argument, that there has always existed one or more other circumstances in combination with that of the goods existing in specie, to induce the judgment that the loss was not total, as in Glennie v. The London As- surance Company, 2 M. & S. 371. The rice had arrived at its port of destination, and though damaged was delivered to the consignees, and in a saleable state as rice. In Thomp- son V. The Royal Exchange Assurance Company, 16 East 214, the tobacco and sugar, though damaged by the perils of the sea, were in the hands of the owner at Heligoland, and, as stated by Lord Ellenborough in his judgment, might for anything that appeared have been forwarded to their port of destination. In Anderson v. The Royal Exchange Assur- ance Company, 7 East 38, the wheat was partly saved, was in the hands of the shipper at Waterford, was kiln-dried and might have been forwarded, as the rest of the cargo was 204 KOUX V. SALVADOR. after the same operation, to its port of destination ; but the owner, after dealing with it for some time as his own, aban- doned it too late, even if he ever had a right to abandon it at all. In the case before us, the jury have found that the hides were so far damaged by the p,erils of the sea, that they never could have arrived in the form of hides. By the *1 ^m P'^ocess of fermentation and putrefaction which *had ^ commenced, a total destruction of them before their arrival &\ the port of destination became as inevitable as if they had been cast into the sea or consumed by fire. Their destruction not being consummated at the time they were ■ taken out of the vessel, they became iij that state a salvage for the benefit of the party who was to sustain the loss, and were accordingly sold, and the facts of the loss and the sale were made known at the same time to the assured. Neither he nor the underwriters could at that time exercise any con- trol over them, or by any interference alter the consequences. It appears to us therefore that this was not the case of what has been called a constructive loss, but of an absolute total loss of the goods. They coilld never arrive, and at the same moment when the intelligence of the loss arrived all specu- lation was at an end. It has indeed been strenuously con- tended before us that the sale of the hides whilst they remained in specie rendered abandonment necessary to make the loss total; that the money produced at the sale became vested in the assured ; that he had an undoubted right to keep it if he thought proper, and to treat the loss as partial ; and that whenever it is in his power to treat the loss as par- tial, an abandonment is necessary to make it a total loss. The assured certainly has always an option to claim or not, but his abstaining from his right does not alter the nature of it ; and if it be true that the proceeds of the sale vested in him, they would equally have done so if, instead of being sold in specie, the hides had actually changed their for'm and been sold asrglue, or manure, or ashes. The argument there- ROUX V. SALVADOR. 205 fore in effect re-resolves itself into this question, whether when a total loss has taken place lefore the termination of the risk insured, with a salvage of some portion of the suhj'ect in- sured, which has heen converted into mmiey, the insured is hound to abandon lefore he can recover for a total loss. If any doubt should still exist upon this point, it is important that it should be well considered and determined. The history of our own law furnishes few, if any, illus- trations of the subject of abandonment before the time of Lord Mansfield. That great judge was obliged • to resort to the aid of foreign codes, and to the opinion of foreign ju- rists, for the rules and principles which he had laid down in the leading cases of Goss v. Withers, 2 Burr. 683, and Hamilton v. Mendez, 1 W. Black. 276. But even those principles are, comparatively speaking, of modern date. The most ancient codes of the Law Maritime, when it was considered a part of the law of nations, contain no chapter upon assurances, *neither do the earliest municipal codes, nor the earliest treatises upon assurances L make any mention of abandonment; when a policy of as- surance was considered in- the nature of a wager without reference to any actual interest possessed by the assured, it was needless to treat of abandonment. The code of Florence, which bears date 1523, contains no allusion to that topic. The decisions of the rota of Genoa, at the time when that state was most eminent for its naval power and commercial enterprise, have been preserved by Straccha. Amongst them are found many cases of insurance upon sea risks; not one of them turns upon any question of abandonment, or contains any allusion to that subject. The same author has written a very elaborate treatise upon assurances, but is equally silent upon the subject of abandonment. He has also preserved in that treatise the form of a policy bearing date at Ancona, October 20th, 1567, which he says was at that time in general use amongst the states of Italy. From 206 EOUX V. SALVADOR. the terms of that policy it is difficult to infer any right or duty of abandonment. It contains this clause: "Et sidelle mercantie assecurate intervenisse o fosse intervenuto alcun disastro, li assecuratorij debbono dare et pagare quelli danari assecurati al detto assecurato fra mesi due dal di che in Ancona ne fosse vera nuova. Et si pretendessero per ragione alcuna dire in coirtrario, non possono esser uditi da corte, giudice, o magistrate alcuno, si prima non averanno pagati efFectualmente danari contanti." So that not only two months after the credible news of any disaster was the underwriter bound to pay a total loss, but if he meant to contest the claim, he was within that time to purchase the right of litigation by first paying the sum insured. It was however to be restored to him in the event of his success. There is also a clause in the policy by which if there was no account of the ship for twelve months, the underwriter was bound to pay at the end of that time, subject to restitu- tion if the ship should afterward? arrive, — a provision wholly inconsistent with any notion of abandonment. The same law probably prevailed at that period throughout the states of Italy. But when assurances caJlie to be considered as con- tracts of indemnity and not as mere wagers, it became ne- cessary to make some rules for the conduct of the parties where the loss was partial, as well as to secure to the as- sured, when it was total, the fall measurfe of his indemnity and no more. The obligation of abandonment was the ne- cessary consequence of confining the object of the contract to a strict indemnity. Accordingly we find in the chapter *152'1 ^^ assurances in the tsivil statutes of *Genoa in 1610, the disaster upon which the underwriter is bound to pay is limited and defined to be the incapacity of the ship to proceed within a month after she has been disabled, or the detention of her by force and the compulsory dereliction of her voyage, whereby she is forced to land the goods in- sured. In those cases the assured may either abandon the KOUX V. SALVADOR. 207 goods and demand the full insurance, or make up the amount of the loss and demand it from the underwriters, who, if it amount to fifty per cent., shall have their option either to pay that sum and leave the goods to the assured or to pay the whole and take the goods. By the same law wager policies are prohibited and declared void. Here it is obvious that the object of the law was to limit the claim of the assured to a strict indemnity. The same principle will be found in various codes of the other maritime states of Europe in which abandonment is mentioned, though it must be admitted that the rules they have respectively adopted are very different. In some abandonment is merely permis- sive and limited to very few cases. In others, as in the codes of Rotterdam and Amsterdam, abandonment was im- perative, even in the case of an absolute total loss. Such seems to have been the law of France as established by the ordinances of Louis XIV. in 1681. From the words of that code indeed it might b.e thought that they were only intended to prohibit it in all but the specified cases, and not to enforce it as a preliminary condition for recovering an ab- solute total loss: "Ne pourra le d^laissement ^tre fait qu'en cas de prise, naufrage, bris, ^choument, arret de prince, ou perte enti^re des efifets assures : et tons autres dommages ne seront reputes qu'avari^s." Emerigon, in his " Treatise des Assurances," c. 17, s. 1, remarks that abandonment presents to the mind the idea of a thing existing in whole or in part, or at least the fdea of a doubtful existence, for it appears absurd to announce to the assurers a thing of which the ab- solute loss is already established. Nevertheless he says, "According to our Maritime Laws one may abandon to the underwriter a thing entirely lost, and, however singular it may appear, the law requires the form of an abandonment in the process of an action de delaissement, though it be stated that the goods have absolutely ceased to existj" this apparent inconsistency in the law of France is now removed 208 EOUX V. SALVADOK. by the Code Napoleon. Under the title du DSlaissement in the Code de Commerce, there are seven cases enumerated in which abandonment is permitted, amongst which the "perte entire des effets assures" is not to be found. There is in- deed a power given to *abandon in case the loss or -■ damage of the goods insured amount to three-fourths, but the necessity of making an abandonment in case of the entire loss seems to be guarded against expressly by the article 372, which provides "that the abandonment shall extend to nothing but those effects which are the object of the assurance and the risk." But whatever lights might have been heretofore derived from foreign codes and jurists, the practice of insurance in England has been so extensive and the questions arising upon every branch of it have been so thoroughly considered and settled, that we need not now look beyond the authori- ties of the English law to illustrate the principle on which the doctrine of abandonment rests, and the consequences which result from it. It is indeed satisfactory to know, that however the laws of foreign states upon this subject may vary from each other, or from our own, they are all directed to the common object of making the contract of insurance a contract of indemnity and nothing more. Upon that prin- ciple is founded the whole doctrine of abandonment in our law; the underwriter engages that the object of the assurance shall arrive in safety at its destined termination. If in the progress of the voyage it becopes totally de- stroyed or annihilated, or if it be placed by reason of the perils against which he insures in such a position that it is wholly out of the power of the assured or of the under- writer to procure its arrival, he is bound by the very letter of his contract to pay the sum insured. But there are inter- mediate cases, — there may be a capture, which, though jormci facie a total loss, may be followed by a recapture, which would revest the property in the assured. There may be a ROUX V. SALVADOR. 209 forcible detention which may speedily terminate, or may last so long as to end in the impossibility of bringing the ship or the goods to their destination. There may be some other peril which renders the ship unnavigable, without any rea- sonable hope of repair, or by which the goods are partly lost, or so damaged that they are not worth the expense of bring- ing them or what remains of them to their destination. In all these or any similar cases, if a prudent man not insured would decline any further expense in prosecuting an adven- ture the termination of which will probably never be suc- cessfully accomplished, a party insured may, for his own benefit as well as that of the underwriter, treat the case as one of total loss, and demand the full sum insured. But if he elects to do this, as the thing insured or a portion of it still exists, and is vested in him, the very principle of the indemnity *requires that he should make a cession of p^.-, f., all his right to the recovery of it, and that too within a reasonable time after he receives the intelligence of the accident, that the underwriter may be entitled to all the benefit of what may still be of any value ; and that he may, if he pleases, take measures at his own cost for realizing or in- creasing that value. In all these cases not only the thing assured or part of it is supposed to exist in specie, but there is a possibility, however remote, of its arriving at its desti- nation, or at least of its value being in some way affected by the measures that may be adopted for the recovery or pre- servation of it. If the assured prefers the chance of any ad- vantage that may result to him beyond the value insured, he is at liberty to do so ; but then he must also abide the risk of the arrival of the thing insured in such a state as to en- title him to no more than a partial loss. If, in the event, the loss should becojne absolute, the underwriter is not the less liable upon his contract, because the insured has used his own exertions to preserve the thing assured, or has post- poned his claim tUl that event of a total loss has become cer 14 210 EOUX V. SALVADOK. tain which was uncertain before. In the language of Lord EUenborough, in the case of Mellish v. Andrews, 15 East 13, " it is an established and familiar rule of insurance, that when the thing insured subsists in specie, and there is a chance of its recovery, there must be an abandonment. A party is not in any case obliged to abandon, neither will the want of an abandonment oust him of his claim for that which is in fact an average or total loss, as the case may be." Again in Mullett v. Shedden, 13 East 304, the same learned judge says, " If, instead of the saltpetre having been taken out of the ship and sold, and the property divested, and the subject-matter lost to the owner, it had remained on board the ship and been restored at last to the owner, I should have thought there was much in the argument, that in order to make it a total loss, there should have been notice of abandonment, and that such notice should have been given sooner ; but here the property itself was totally lost to the owner, and the necessity of any abandonment was altogether done away." In that case, the sentence under which the sale was made had been reversed, and the proceeds directed to be paid to the owner. So that there was a substitution of money for a portion at least of the matter insured. Both these cases are direct authority that no abandonment is necessary where there is a total loss of subject-matter insured. To which may be added the cases of Green v. The Royal Exchange *1551 *^'*^**''*™^^ Compani/.^ 6 Taunt. 68 (1 E. C. L. R.) ; Idle V. The Royal Exchange Assurance Company, 8 Taunt. 755 (4 E. C. L. R.) ; Robertson v. Clarke, 1 Ring. 445 (8 E. C. L. R) ; Cambridge v. Andertm, 2 B. & C. 697 (9 E. C. L. R.) ; this last is in all points similar to the pre- sent, and is an express decision that, when the subject- matter insured has, by a peril of the sea, lost its form and species, — where a ship, for example, has become a wreck or a mere congeries of planks, and has been bond fide sold in that state for a sum of money, — the assured may recover ROUX V. SALVADOR. 211 a total loss without any abandonment. In fact, when such a sale takes place, and in the opinion of the jury is justified by necessity and a due regard to the interests of all parties, it is made for the benefit of the party who is to sustain the loss ; and if there be an insurance, the net amount of the sale, after deducting the charges, becomes money had and received to the use of the underwriter, upon the payment by him of the total loss. It may be proper to mention, however, that the assured may preclude himself from re- covering a total loss, if, by any view to his own interest, he voluntarily does or permits to be done any act whereby the interests of the underwriter may be prejudiced in the re- covery of that money. Suppose,, for example, that tiie money received upon the sale should be greater than or equal to the sum insured, if the assured allows it to remain in the hands of his agent, or of the party making the sale, and treats it as his own, he must take upon himself the consequence of any subsequent loss ■ that may arise of that money, and cannot throw upon the underwriter a peril of that nature. This is the true principle of the case of Mitchell V. ^die, 1 Term Rep. 608, which was cited as an authority for the decision of the Court of Common Pleas. There the insurance was upon sugar from Jamaica to Lon- don. The ship had been captured by a privateer, deprived of some of her crew and a portion of her stores, then re- leased, and carried by the remainder of the crew into Charleston, where she arrived on the 18th of February, 1782. The report does not state when the intelligence of this event arrived in London, but it is probable that it must have reached the assured before the month of June follow- ing. One of the owners of the ship was resident at Charles- ton ; he took possession of her, and, instead of despatching her on the original voyage, he sold the cargo of sugar in the month of June, and sent the ship on another voyage. He had been connected with the assured in former adventures. 212 ROUX V. SALVADOR. He retained the money in his hands, and came to England in June, 1783. The assured pressed him for payment of *1 fifil *^^® money, but took no steps to recover it ; he he- came insolvent the following year; no claim was made upon the underwriters till after this event, and then, after the expiration of three years from the alleged loss of the goods, notice of abandonment was given, and the action brought ; upon which the defendant paid into court a sum sufficient to cover a general average, and pleaded the general issue. The court gave judgment against the plain- tiff; stating that he had abandoned too late. And it cannot be disputed, that if he ever had any color for claiming a total loss, it must have Jjeen upon an abandonment before he heard of the sale, as he afterwards gave credit to his agent for the money, and elected to treat it as his own, tUl the event of an insolvency, which prevented the underwriter from recovering it. But in fact there never was a total loss by a peril of the sea. The sugars were safe at Charles- ton, and the sale by the owner of the ship was not a loss by a peril insured against. The secret of the conduct of the assured may be discovered by a reference to the dates and the circumstances of the time. During the war with America, and especially towards the close of it, the inter- course between that country and the West India Islands was much interrupted, and the price of colonial produce was higher in Charleston than in London. It was there- fore probably his interest to give up his claim upon the underwriters, and adopt the sale. If therefore the sale of the goods could have been treated as a loss, the conduct of the assured had either deprived him of the right to claim it, or made him liable, if he had the right, to account to the underwriters for the amount of the sale. If indeed the court must be supposed to have treated the sale at Charles- ton as a loss, for which the underwriter was at any time responsible, the case may be an authority for establishing ROUX V. SALVADOR. 213 the principle, that even when a total loss has occurred, by a sale of the goods, the assured may, by his own conduct in electing to take the proceeds instead of making his claim upon the underwriter, if he thereby alters the position of the facts so as to affect the interest of the underwriter, for- feit his claim to recover a total loss. But the case is in no view an authority for the judgment of the Court of Common Pleas, which for these reasons we think ought to be re- versed ; and a verdict entered for the plaintiff for 27/. ISs. Qd. and 40s. costs. Judgment for plaintiff. *"The history of the Law of Abandonment, both in our r^-ir^ own and foreign countries," writes a late very eminent author, "will be found learnedly discussed in the judgment of Lord Abinger, in the great case of Roux v. Salvador," Smith's Mer- cantile Law 389, 7th ed. The doctrine of abandonment cornea into question where there has been a total loss of property comprised in a contract of maritime insurance. A total loss is of two kinds, absolute or constructive. Where the loss is absolute, that is to say, "where the subject in- sured becomes totally destroyed or annihilated, or if it is wholly out of the power of the assured or of the underwriter to procure its arrival," the assured is entitled by the very letter of his contract to immediate payment of the sum insured without his giving any notice of abandonment of the property insured to the underwriter. Where however a constructive total loss takes place, that is to say, where the subject of the insurance is not wholly destroyed, but is placed in such peril as to render the successful prosecution of the adventure improbable, and such as a prudent man uninsured would decline any further expense in following up, in such case the insured may treat the case as a total loss, and demand the full sum insured. He must however give notice, within a reasonable time, to the insurer of his intention so to do, and of his abandonment to him of all his right to the thing insured. 214 KOUX V. SALVADOK. The doctrine of abandonment, as observed by the Chief Baron in the principal case, is founded upon this principle, that the contract of insurance is a contract of indemnity and nothing more, and the very principle of indemnity requires that the assured should make a cession of all his right to the recovery of the property insured, and that too within a reasonable time after he receives intelligence of the accident, that the underwriter may be entitled to all the benefit of what may still be of any value; and that he may, if he pleases, take measures at his own cost for realizing or increasing that value. Ante, p. 153, 154. A policy may limit the liability of underwriters to cases of abso- lute total loss only, the intention however to exclude cases of con- structive total loss must be clear, otherwise the underwriters will be liable for them. Thus in Adams, v. Mackenzie, 13 C. B. N. S. 442 (106 E. C. L. R.), a policy wa;S effected on a ship "against total loss only." The ship was damaged by perils of the sea to an extent to warrant the jury in finding a constructive total loss. It was held by the Court of Common Pleas that there was nothing in the form of the policy to exclude the liability of the underwriters. In examining the subject so well discussed in the principal case, it is proposed to consider : — 1st. What amounts to absolute total loss, or loss in which notice of abandonment is not required. 2d. *1581 *^^''^^*' amounts to constructive total loss, in which notice of abandonment is requisite. 3d. "What is necessary to consti- tute a valid abandonment. 4th. The effect of abandonment on he rights and liabilities of the parties to the contract of insurance. 1. Total absolute loss. As we have before observed, where there is a total absolute loss of the subject-matter insured, the insured may recover the whole sum for which the property lost was insured, without giving any notice whatever of abandonment. In fact, it would be an absurdity to re- quire notice, when the very idea of a total loss supposes either the non-existence of the thing insured, or its existence in such a position or shape as to render its recovery hopeless. There are two kinds of total absolute loss, as laid down by Lord Abinger, C. B., in the principal case:— 1st. Where the subject of the insurance in the progress of the voyage becomes tatally destroyed or annihilated; 2d. Where it is placed by reason of the perils against which he insures, in such a position that it is wholly out of the KOUX V. SALVADOR. 215 power of the assured or of the underwriter to procure its arrival at its destination. To one or other of these classes we shall see that all cases of total absolute loss belong. Total Loss of Ship. — If a ship has foundered, or been burnt at sea (Murry v. Hatch, 6 Mass. 475), or has become a mere wreck so as to be broken in pieces and dismembered (Bell v. Nixon, Holt N. P. 425 (3 E. C. L. R.) ; Irving v. Manning, 1 H. L. Cas. 817), it is clear that a total absolute loss has taken place. And not only where the ship is bodily and specifically lost or is a mere wreck, but under other circumstances also, although the ship may hold together, it may be considered that an absolute total loss has occurred; where, for instance, a ship is so shattered in a storm that upon survey it is found the expense of repairing her would exceed the original value (Robertson v. Clarke, 1 Ring. 445 (7 E. C. L. R.); Robertson v. Caruthers, 2 Stark. 571 (3 E. C. L. R.) ; Cambridge v. Anderson, R. &. M. 60 (21 E. C. L. R.); 2 B. & C. 691 (9 E. C. L. R.)); and d fortiori where, in the words of the Chief Baron in the principal case, the ship has become a "wreck or mere congeries of planks'' {ante, p. 155), the owner may recover as for a total loss, although the vessel or her materials have been sold by the master, if he has done so in the exercise of a sound discretion, as a prudent owner uninsured would have done. Thus in the leading case of Cambridge v. Ander- son, R. & M. 60 (21 E. C. L. R.); 1 C. & P. 231 (12 E. C. L. R.); 4 D. & R..203 (16 E. C. L. R.); a vessel, the principal portion of whose cargo consisted of timber and insured from Quebec to Bristol, struck on a rugged shore two hundred fathoms from the land, and abouttwo hundred and twenty miles from Quebec. Her captain failing to get her off, upon the advice of an agent of Lloyd's had the ship examined by three surveyors, who gave it as their *opinion that she could not be repaired under a sum which would ex- L ceed her prime cost. Her captain, acting on their judgment, sold the ship with her register and her cargo. The purchasers were ship- wrights, who did some repairs to her, and sent her on another voy- age; in the prosecution of which she was lost. The captain and the maj;e and the ship's carpenter proved that they saw her after the repairs were done, and did not think her fit to undertake a voyage, and that they would not have trusted their lives in her. The 'plain- tiff having given no notice of abandonment, brought an action 216 KOUX V. SALVADOR. I against the underwriters to recover for a total loss, with benefit of salvage to the underwriters. It was argued for the defendant that the plaintiff could not recover as for a total loss, for the ship was not sold as a wreck to be broken up, but was sold with her register, to make another voyage, and that it was clear from the circuinstance of her having been purchased by shipwrights and repaired, that she must have existed as a ship; and that if a vessel existed in specie, and could by any repairs be made fit for sailing, it was not a total loss. Lord Tenterden, C. J., before whom the case was tried at Guildhall, said, "This is a question of considerable importance to shipowners. If the jury are of opinion that this vessel could not be repaired at all, or that she could not be repaired without incurring an expense equal to or greater than her value, then I shall hold, that, although sbe may exist in the form of a vessel, and be afterwards sold with her register^ the plaintiff will be entitled to recover as for a total loss, with benefit of salvage to the underwriters :" R. & M. 61 (21 E. C. L. R.). The jury having found a verdict for a total loss, a motion was afterwards made for a new trial, but the rule was refused. Lord Tenterden, C. J., then said, "Whether the ship were repair- able or not was left as a question to the jury, and I think that they disposed of it correctly. If the subject-matter of insurance remained a ship it was not a total loss, but if it were reduced to a mere congeries of planks the vessel was a mere wreck ; the name which you may think fit to apply to it cannot alter the nature of the thing." Bayley J., observed, "I take the legal principle to be this; if by means of any of the perils insured against, the ship ceases to retain that character, and becomes a wreck, that is a total loss, and the master may sell her, and the assured may recover for a total loss, without giving any notice of abandonment. This was decided in Read V. Bonham, 3 B. & B. 147 (6 E. C. L. R.), and although Richard- son, J., there diS"ered from the rest of the court, that was only upon the facts of the case, and not as to the legal principle upon which it was decided:" 2 B. & C. 692 (9 E. 0. L. R.). See also Gardiner V. Salvador, 1 Mood. & Rob. 117; Tanner v. Bennett, R. & M. 182 (21 E. C. L. R.); Underwood v. Robertson, 4 Campb. 138. Where, however, the ship, although much damaged, remains»all *1601 *''^'^ *'™® '" ^^® character of a ship, the owner cannot pro- ceed to a sale (Martin v. Crokatt, 14 East 465), or to break her up (Bell v. Nixon, Holt's N. P. 423 (3 E. C. L. R.)), and after- ROUX V. SALVADOR. 217 wards recover for a total loss without giving notice of abandonment to the underwriters ; for it is but just, that they should be ena- bled to elect whether or not they will incur the expenses of repair : Martin v. Crokatt, 14 East 465, 467 ; Fleming v. Smith, 1 H. L. Cas. 513 ; Knight v. Faith, 15 Q. B. 659 (69 E. C. L. R.). As observed by Lord Campbell, C. J., in his able judgment in the case of Knight V. Faith, 15 Q. B. 659, " The condition of giving notice of abandonment in such a case is imposed by the law to give the in- surers the means of inquiry and of guarding against fraud, to enable them to repair the ship if they should deem such a proceed- ing for their advantage, and to secure to them all the advantages to which, if liable for a total loss, they would be entitled as owners of the ship from the time when the damage was sustained to which the loss is ascribed." In another passage in his judgment, his Lord- ship shows the propriety of requiring notice of abandonment in such cases, because "there is reason to apprehend that great frauds are committed in distant parts under pretence that ships insured have received* an injury which renders it imprudent to repair them ; and such frauds would be much facilitated if the owners were not required to make any communication to the insurer till they came upon him peremptorily to demand payment of the full sum sub- scribed in the policy:" Id. 663. If the master, by means within his reach, can make an experi- ment to save a ship with a fair hope of restoring it to the character of a ship, he cannot, by selling, turn it into a total loss. Bona fides in the master will not decide the question, for if he sells erro- neously what is entitled to the character of a ship, though he thinks it a wreck, it will not do : per Bayley, J., in Gardner v. Salvador, 1 Mood. & Rob. 117. See also Hodgson v. Blackiston, Park on Ins. 400 n. 8th ed. ; Allwood v. Henckell, Id. 399 n. As a question may be raised whether, if a vessel reaches her port of destination, though in such a state as not to be worth while re- pairing, the assured can recover as for an absolute total loss, it would be advisable for him to give notice of abandonment to the insurers, for there is no doubt but that, under such circumstances, he would be able to recover as for a total loss : Stewart v. Greenock Insurance Company, 2 H. L. Cas. 159 ; Shawe v. Felton, 2 East 109 ; Allan V. Sugrue, Dans. & LI. 188 ; 8 B. & C. 561 (15 E. C. L. R.) ; 3 M. & R. 9 ; Samuel v. Royal Exchange Assurance Company, 8 B. & C. 119 (15 E. C. L. R.). 218 ROUX V. SALVADOR. Total Loss of Groods. — In certain cases of loss of goods, no great diflSculty arises in determining whether the total loss is absolute or ^-, a^^ I merely constructive. Thus, *where the goods go down into deep water with a vessel foundered at sea, unless they are in such a position that they may be raised (Kemp v. Halliday, 1 Law Rep. Q. B. (Exch. C.) 520), or have been seized in an enemy's port (Mellish V. Andrews, 15 East 13 ; and see MuUett v. Shedden, 13 East 307), or have been plundered by wreckers (Bondrett v. Hentigg, Holt N. P. 149 (3 B. C. L. R.)), without any hope of recovery down to the time of action brought, it will be a case of absolute total loss, and no notice of abandonment will be necessary. If however there remains a hope of recovering the goods insured before action brought by the assured, it will not be considered a total loss unless notice of abandonment has been given. Thus if the goods insured were seized and confiscated by the enemy, but there remains a hope of recovering them, as, for instance, by the commencement of negotiations for that purpose by the government of the assured, if the goods are restored before action brought, it will not be considered a total loss unless notice of abandonment has been previously given : Goldsmid v. Gillies, 4 Taunt. 803. "Is it not," said Lord Ellenborough, "an established and familiar rule of insurance law, that where the thing insured subsists in specie, and there is a chance of recovery, in order to make it a total loss there must be an abandonment?" Tunno v. Edwards, 12 East 491. From which dictum we may draw the inference that, in order to render abandonment necessary, the thing insured must not only subsist in specie, but there must also be a spes recuperandi. As to Perishable Groods warranted ^'free of average." — Greater difiBculties arise in determining these ijuestions in the case of per- ishable goods, and they arise more frequently, because, in the case of perishable goods, they are generally, by the memorandum to the policy, warranted " free of average," that is to say, nothing is to be recovered in respect of them in case only of an average or par- tial loss, but only when a total loss has taken place. "We may however here remark, as is laid down in the principal case, that whether the loss be total or partial in its nature depends on general principles. The memorandum does not vary the rules upon which a loss shall be partial or total : it does no more than preclude the indemnity for an ascertained partial loss, except on ROUX V. SALVADOR. 219 certain conditions: Ante, p. 147. See The Great Indian Peninsular Railway Company v. Saunders, 1 B. & S. 41 (101 E. C. L. R..) ; 2 B. & S. 266 (110 E. C. L. R.); Booth v. Gair, 15 C. B. N. S. 291 (109 E. 0. L. R.) ; Kidston v. The Empire Marine Insurance Company, 1 Law Rep. C. P. 535 ; 2 Law Rep. C. P. (Exch. C.) 357; Carr v. The Royal Exchange Assurance Corporation, 5 B. & S. 433 (117 E. C. L. R,). It seems at one time to have been thought, that if goods re- mained in specie, although so changed as to be no longer of any value in their original character, *it could not be considered rj^i-iftn as a total loss, and consequently, when such goods were war- ranted "free from average," nothing could be recovered from the underwriter. Thus, in Cocking v. Eraser, 4 Doug. 295 (26 E. C. L. R.), Park 247, 8th ed., goods were insured with the usual memorandum. "Corn, fish, etc., warranted free from average, unless general, or the ship should be stranded." A quantity of fish, part of the goods insured, were so much damaged by the perils of the sea, that they were hove overboard for the general preserva- tion of the rest of the fish a,nd cargo. And upon the arrival of the ship at Lisbon, upon a survey being made at the request of the captain, who was also consignee of the fish, by the Board of Health of Lisbon, it appeared that the fish were rendered of no value, and the ship consequently did not proceed. It was held by Lord Mans- field, C. J., that the loss was not total, and that consequently the plaintifi" could not recover anything upon the insurance. "What," said his Lordship, " is a total loss ? The total loss of a thing is the absolute destruction of it, by the wreck of the ship. The fish may all come to port, though from the nature of the commodity it may be damaged, — it may be stinking, — still, as the commodity spcifi- cally remains, the underwriter is discharged." Buller, J., also made the observation, "that there never was an instance of a pay- ment for a total loss in these cases where the thing existed, though of no value." The authority of this case was questioned by Lord Kenyon, C. J., in Burnett v. Kensington, 7 Term Rep. 222, and indeed it may be now considered as overruled. The first case to be noticed in which Lord Kenyon's views were adopted, is that of Dyson v. Row- croft, 3 Bos. & Pul. 474 ; there a policy was effected on fruit, from Cadiz to London, which contained the usual memorandum that 220 KOUX V. SALVADOR. fruit, etc., were free from average. In the course of the voyage the fruit was so much damaged by sea-water that it became rotten and stunk ; and on the ship's arrival at an intermediate port, into which she was driven, the government of the place prohibited the landing of the cargo. The ship also, being too much damaged to proceed on the voyage, was sold, and the cargo necessarily thrown overboard. It was held by the Court of Common Pleas that the assured were entitled to recover as for a total loss. "If," said Lord Alvanley, C. J., "I understand the policy as restrained by the memorandum, the underwriter agrees that all commodities shall arrive safe at the port of destination, notwithstanding the perils insured against ; but that he will not be liable to pay for any partial loss on fish, or the other articles contained in the memorandum, because those commodities being liable to deterioration from cir- cumstances independent of the perils insured against, he would con- tinually be harassed with claims for partial loss alleged to have *1fi^1 ^'"'sen from the perils mentioned *in the policy. Unless therefore the consequence of the damage sustained 'be the total loss of the commodity, the underwriter does not agree to be answerable ; but if the commodity be totally lost to the assured, he undertakes to pay. If this be not the meaning of the memorandum, it is badly expressed ; and the underwriters would have done better, if they had said that they would not be answerable unless the com- modities enumerated actually went to the bottom. The question is, what is a total loss ? I admit that the circumstances of cases like the present are generally suspicious. If the voyage be protracted,' deterioration necessarily takes place ; and it becomes the interest of the captain and mariners to turn the injury into a total loss. But this is matter for the consideration of the jury. We ought, in- deed, to look at the case with some suspicion, where there is io much temptation to throw the cargo overboard. But here it is found that the necessity of so doing arose from sea-water shipped during the course of the voyage; and that the commodity was in such a state that it could not be suffered to remain on board consistently with the health of the crew. In consequence of this necessity, therefore, the commodity was annihilated, by being thrown over- board. Had it not been so annihilated, it Avould have been annihi- lated by putrefaction ; and is it not as much lost to the assured b/ being thrown overboard, as if the captain had waited until it had ROUX V. SALVADOR. 221 arrived at complete putrefaction ? The case of Cocking v. Fraser was tlie only thing which raised any doubt in my mind ; and it is certainly a very strong case. But the authority of that case is much shaken by the observation of Lord Kenyon upon it, in Burnett v. Kensington. I suspect that the words ' of no value,' applied to the cargo in the case of Cocking v. Fraser are somewhat too large, and that the fact was, not that the cargo was in such a situation as to make it impossible to preserve it, but that it was so much damaged as to be no longer Valuable to the owners, because it was not worth carrying to the port of destination. Lord Kenyon, speaking of Cocking V. Fraser, says that he cannot subscribe to the opinion there given, that 'if the commodity specifically remain, the under- writer is discharged (Marshall, p. 144): I think myself therefore at liberty to consider the case of Cocking v. Fraser as something less strong than it appears to be. The question then is, whether the loss which has happened be not as much a total loss as if the waves had carried the. cargo overboard, or as if it had been directly prevented from arriving at the port of destination, by some of the perils in- sured against?' I never have understood that the underwriters in- sure fish against no perils which do not end in a total annihilation of the commodity. When the loss arise? by capture, the commodity remains in existence in the hands of the enemy ; and yet this loss is *as much within the policy as a loss arising from the wreck r*if»4^ of the ship. I must now take it that the circumstances under which the cargo in this case stood, were such that sea-damage bad so operated as to make it impossible for the captain to keep it any longer on board. Whether the cause of the loss were direct or indirect, it produced a total annihilation of the commodity." In the case of Cologan v. London Assurance Company, 5 M. & Selw. 447, where wheat insured "free of average" had been. thrown away in a putrid state. Lord Ellenborough, C. J., said : — " Con- sidering the contract of insurance as a contract of indemnity, it surely cannot he less a total loss because the commodity subsists in specie, if it subsists only in the form of a nuisance. There is a total loss of the thing, if by any of the perils insured against it is ren- dered of no use whatever, although it may not be entirely annihi- lated." See Ralli v. Janson, 6 E. & B. 422 (88 E. C. L. R.). In the principal case, as decided by the Exchequer Chamber, re- versing the decision of the Court of Cpmmon Pleas, reported (1 Bing. 222 ROUX V. SALVADOR. N. C. 524 (27 E. C. L. R.); 1 Scott 491), this subject was very fully discussed, and the principles upon which the Court proceeded are, to use the words of an able text-writer, " admirably stated by Lord Abinger, in giving the judgment of the Court, — a judgment which should be attentively studied by all who desire to know, the present state of our law on this much litigated subject :" 2 Am. Mar. Ins. 1055, 2d ed. There hides insured free of particular average, having been sold at an intermediate port in a state of incipient putridity, because they would have been destroyed before they could have reached their destination, it was held by the Exchequer Chamber that the assured might recover as for a total loss, without abandon- ment. From this and the former decisions it seems to be clear that where perishable goods, although they exist in specie, have by the perils insured against either already lost their original character, in con- sequence of which they have been thrown overboard, or if they are in such a state that it is clear that they would inevitably lose their original character previous to their arrival at the port of their desti- nation, and they are in consequence sold at an intermediate port, the insured may recover for a total loss, without any notice of aban- donment. Where, however, though much damaged, the goods exist in specie, and there is a reasonable expectation that they may arrive at their port of destination, without their original character being changed, the assured, who has not sent them on, or has sold them at an inter- mediate port, cannot, at any rate, without notice of abandonment, recover as for a total loss. Thus, in Anderson v. The Royal Ex- change Assurance Company, 7 East 38, a vessel laden with corn in- sured "free of average," from Waterford-to Liverpool, when *1651 -*^*^^^°g <^°^" t^6 river from Waterford, struck upon a rock, which occasioned her immediately to fill with water, and to prevent her from sinking she was run ashore. The hull of the ship was for four weeks entirely submersed at high water. The wheat was got out much damaged ; part was thrown into the sea as unfit for use, part was kiln-dried at Waterford, and sold there, although it might have been forwarded to Liverpool had the insured given directions for that purpose. It was held by the Court of Common Pleas that the assured could not recover for a total loss. "It was not," said his Lordship, " in fact, as it turned out, a total loss; but RODX V. SALVADOK. 223 during the time it was submersed in the water it might have been treated as such. They did not however treat it as a total loss at that time, but continued laboring on the vessel and cargo on their own account for some time afterwards, from the Slat of January till the 18th of February, and had succeeded in preserving part of it, and did not elect to abandon till they found that it would not answer to keep to the cargo ; and when they did abandon it was no longer in fact a total loss." Upon the same principle, in the case Hedburgh v. Pearson, 7 Taunt. 154 (2 E. C. L. R.), where there was an insurance "on hogsheads of sugar," warranted "free from particular average," from Gottenburgh to Stralsund, and the ship was stranded and bilged, but every one of the fifty-four hogsheads of sugar on board was saved, and some of the loaves of sugar in each hogshead. But of the whole cargo of sugar, there being about a hundred and twenty loaves to each hogshead, only seventy-eight loaves were saved dry, and forty-five wetted by the sea. It was held by the Court of Common Pleas that, inasmuch as it could not be said that none of the sugar was saved, they could not draw any measure of a proportion to be saved, which should be compatible with a total loss. If they should begin to do so, they could not see where they were to stop ; and even if this were a fit case for the consideration of the Court, they thought the jury had .rightly decided it." See also Thompson v. Royal Exchange Company, 16 East 214; the re- marks of Lord Abinger, C. B., upon those cases, ante, p. 136; and Navone v. Haddon, 9 C. B. 36 (67 E. C. L. R.). Although as a general rule where the whole or any part of a cargo of perishable goods (having suffered from, sea damage), is practically capable of being sent in a marketable state to its port of destination, the master cannot sell, nor can the assured .recover as for a total loss; nevertheless, if the damage cannot be repaired without laying out more money than the thing is worth, the repara- tion is impracticable, and therefore, as between the underwriters and the assured, impossible, and the master, as in the case of a ship similarly situated (see ante, p. 158), may sell the cargo, and the assured can recover as for a total loss. See Rosetto v. *Gurney, 11 C. B. 176, 187 (63 E. C. L. R.), and the re- L ^^" marka there upon the case of Reimer v. Ringrose, 6 Exch. 263. In determining whether the damage to the goods can or cannot be 224 KOUX V. SALVADOR. repaired at a cost more than their worth, the jury must take into account all the extra expenses consequent on the perils bf the sea, such as drying, landing, warehousing, and re-shipping the goods; but they are not to take into account the fact -that, if they are car- ried on in the original bottom, or by the original shipowner in a substituted bottom, they will have to pay the freight contracted to be paid ; that being a charge to which the goods are liable when de- livered, whether the perils of the sea affect them or not : Farnworth V. Hyde, 2 Law Rep. C. P. (Exch. Ch.) 204. And where the original bottom is disabled by the perils of the sea, so that the shipowner is not bound to carry the goods on, and he does not choose to do so, the jury are not to take into account the whole of the cost of transit from the place of distress to the place of destination, which must be incurred by the goods' owner if he carries them on, but only the excess of that cost above that which would have been incurred if no peril had intervened : Id. Moreover, in determining whether a ship submersed with her cargo is a constructive total loss, the amount of general average which would be contributed by the cargo must be taken into account, and the cost of raising the ship calculated as reduced by that amount: Kemp v. Halliday, 1 Law Rep. Q. B. 620. As to the mode of estimating damages by the Court of Admiralty in cases of total loss from collision, see-The Clyde, Swab. Adm. Rep. 23; The Canada, Lush. Adm. Rep. 586. Where goods are insured by a policy of Marine Insurance in the ordinary form, the expression "warranted free from particular aver- age," is not confined to losses arising from injury to, or deteriora- .tion of, the goods themselves, but is equivalent to a warranty against total loss and average only, and consequently includes ex- penses incurred in relation to the goods. In The Great Indian Pe- ninsular Railway Company v. Saunders, 1 B. & S. 41 (101 E. C. L. R.) ; 2 Id. 266 (110 E. C. L. R.), a quantity of iron rails was shipped to be carried to a certain place, for a sum to be paid here, ship lost or not lost. The shippers insured them by a policy in the ordinary form "warranted free from particular average, unless the ship be stranded, sunk, or burnt." The ship was neither sunk, stranded, nor burnt, but there was a constructive total loss of her by perils of the sea. The rails were saved, and sent on in other vessels to their destination, for which the insured was compelled to pay EOUX V. SALVADOE. 225 freight to an amount not exceeding the value of the rails. It was held by the Court of Queen's Bench and the Exchequer Chamber ■ that this freight was not recoverable under the policy. As tp the construction of the *words "warranted free from capture, seizure, &c., and free from all consequences of ■- hostilities, riots, or commotions," see lonides v. The Universal Marine Insurance Company, 14 C. B. N. S. 259 (108 E. C. L, R.). Where goods warranted "free of average" arrive in specie at the port of destination, however much they may be damaged or dete- riorated in value and quality, if they still retain their original character, it will not be held to be a total loss, and consequently there will be no liability on the part of the underwriter. See M'Andrews v. Vaughan, Park 252, 8th ed. ; Mason v. Skurray, Id. 254 ; Giennie v. London Assurance Company, 2 M. & Selw. 376 ; and it is immaterial that the vessel is wrecked, if the goods or some of them arrive at their destination: Davy v. Milford, 15 East' 559. The cases of Boyfield v. Brown, 2 Str. 1065, and Buller v. Christie, cited 2 M. & Selw. 374, must be considered as overruled. It seems also that although the goods arrive at their destination in specie, if they are so deteriorated as to have lost their original character, it will be an absolute total loss, for which the underwriter will be liable, although the goods are warranted free of average. This, at any rate, appears to have been the opinion of Lord Abinger in the principal case, but there has been no express decision upon the point ; see also Reimer v. Ringrose, 6 Exch. 267. See, however, 2 Am. Mar. Ins. 906, 3d ed. Where it is said that " in practice it appears far better to disregard all such refinements, and to lay down the broad position that there can be no total loss on perishable goods, and therefore no claim whatever against the underwriter, who by the memorandum has expressly confined his liability to the case of their total loss, only, unless the goods either go to the bottom of the sea, or are necessarily destroyed or justifiably sold by the as- sured, from the impossibility of sending them on in specie to their port of destination. Where a cargo is made up in packages, and the insurance is upon, each package separately, it will be treated as a total loss upon each package lost : per Lord Abinger, in Hills v. London Assurance Com- pany,°5 M. & W. 576. But if goods of the same species are shipped, whether in bulk or 15 226 KOUX V. SALVADOK. in packages, not expressed, by distinct valuation or otherwise, in the policy to be separately insured, though part only, or one or more entire packages be entirely lost or destroyed by the specified perils, ' it will not be considered a total loss or destruction of such pa.rt only; • the consequence in such case is, that if the goods lost be " free of average" the underwriter will be exempted from all liability, the loss being only partial : Ralli v. Jansori, 6 E. & B. 422, 446 (88 E. 0. L. R.), overruling the decision on this point in Davy v. Milford, 15 East 559, and some of the dicta in Hedburgh v. Pearson, 7 Taunt. 15i (2 E. C. L. R.), and in Cologan v. London Insurance * 168J Company, 5 M. & Selw. 456 ; and see Entwistle *v. Ellis, 2 Hurlst. & N. 549, in which case on an insurance of goods in "ship or ships" which were declared to be valued "on rice to be declared free from particular average," it was held that the insurer could not by endorsing a declaration of interest with a separate valuation of each bag of rice, create a separate insurance on each bag. Where, however, goods of different species are insured generally "free from average," if sonie of them be entirely lost, the assured will be able to recover as for a total loss on account of the goods so lost. Thus, in Duff v. Mackenzie, 3 C. B. N. S. 16 (91 E. C. L. R.), an insurance was effected on '■'■master's effects," valued at lOOZ., ^^ free from all average." Some of the articles thus insured were totally lost by the perils insured against, but others were saved. It was held by the Court of Common Pleas that the assured was enti- tled to recover in respect of the goods which bad been so totally lost. "The word 'effects'" said Williams, J., in delivering the judgment of the Court, "is obviously employed to save the task of enumerating the nautical instruments, the chronometer, the clothes, books, furniture, etc., of which they happen to consist. And al- though it is stipulated by the warranty that these effects shall be free of all average, or, in other words, that the insurer shall not be liable for any amount of sea-damage to them short of a total loss ; we think, looking at the nature of the subject of insurance, and the terms of this exemption, it is doing no violence to the language used, to hold that he is not to be exempted from liability for a total loss of any of the articles of which the 'effects' consist. Suppose, instead of the general description of 'master's effects,' the body of the policy had enumerated them, and then the memorandum had ROUX V. SALVADOR. 227 said, 'the chronometer, the sextant, to be free from average,' etc., might not this be well understood to mean that the insurer was not to be liable for any partial damage, but was to be liable for any total ■ loss of any of the specific things mentioned in the memorandum ? And if so, we do not feel constrained to hold that the intention of the parties is different, and the subject of insurance one indivisible subject, merely because the description in the policy of the articles insured is general, and the memorandum extends to the whole sub ject of the insurance." Upon the same principle, in Wilkinson v. Hyde, 3 C. B. N. S. 30 (91 E. 0. L. R.), an insurance was effected for 240?., " on goods so valued against total loss only." The policy contained the usual memorandum against particular average. The cargo thus insured consisted of different kinds of goods, in separate cases and pack- ages, some of which were, by the perils insured against, totally lost, and others were saved. It was held by the Court of Common Pleas that the assured was entitled to recover in respect of the packages 80 totally lost. "Applying," said Williams, J., "the *doc- r*-i(>Q trine of Duff v. Mackenzie here, as soon as it is ascertained that goods are of different species, it is as if the different species had been enumerated. The words 'against total loss only' cannot mean 'total loss of the whole subject of insurance,' taken collect- ively, as Mr. Blackburn contends. The object is simply to ^et rid of the common average memorandum, — to exempt the underwriters from responsibility except in respect of a total loss of the subject- matters of insurance, each taken separately. I see no more reason why the different sorts of 'goods' should be enumerated, than that 'master's effects' should be separately described. The underwriter who insures ' goods' has no right to expect that they shall be all of one species." Total Loss of Freight. — When a ship founders at sea, and with her cargo is lost beyond hope of recovery, it is clear that a total absolute loss of freight has taken place. And where a chartered ship is lost when about to sail to a distant place to take in her cargo, it will be held that the risk commenced at the time of her sailing, although she had no cargo then on board. The leading case on this subject is Thompson v. Taylor, 6 Term Rep. 478, where a ship was chartered from London to Teneriffe, there to take 228 KOUX V. SALVADOR. on board a certain number of pipes of wine, and to proceed, to Bar- badoes, for which the owner was to receive freight at the rate of so much per pipe. The vessel was taken prize on her voyage to Tene- riffe. It was held by the Court of King's Bench, that a policy of insurance on such freight attached from the sailing of the ship. "As the plaintiff," observed Lord Kenyon, C. J., "had begun to perform his part of the contract, as he had done something under it, which, if matured, would have entitled him to his freight, I think he may recover on this policy, which was an insurance on that freight. His contract under the charter-party was entire, and we cannot divide it. The ship was to sail from hence to Teneriffe, where she was to take wine on board and carry it to. the West Indies ; he was to receive freight for the whole voyage, and the plaintiff had performed part of the contract. Therefore, on the principle on which the case in Strange (Tonge v. Watts, 2 Stra. 1251) was decided, though the circumstances of that case are dif- ferent from the present, I am of opinion that the plaintiff is edtitled to recover." See also Ilorncastle v. Stuart, 7 East 400; Mac- kenzie V. Shedden, 2 Campb. 431. Where an insurance has been effected on freight, to become pay- able on delivery of the goods, by a general ship, if a full cargo has been contracted for, and, though lying at some distance, is ready to be put on board, and the ship is ready to receive it, even though temporarily disabled by the perils insured against, the assured may recover as for a total loss, although, at the time of the loss of the ship, only a part, or even none of the *cargo was on board. J Montgomery v. Egginton, 3 Term Rep. 362 ; S. C cited and commented on, 13 East 330, 331 ; Devaux v. J'Anson, 5 Bing. N. C. 519 (35 E. C. L. E,.). Where however the ship is lost with only a part of her cargo on board, and the rest of her cargo is not contracted for, and the ship, independently of any disability in consequence of the perils insured against, is not ready to receive it, the assured is- not entitled to re- cover for a total loss, but an apportionment only according to his actual loss. See Forbes v. Aspinwall, 13 East 323, 332; j?os«, p. 204, 211 ; Forbes v. Cowie, 1 Camp. 520. In the case of a chartered vessel, where the payment of the freight is in the charter-party made to depend on the delivery of a particular cargo at the ultimate port of destination, if the vessel be ROUX V. SALVADOE. 229 captured before the goods be put in at an intermediate port, the assured can recover for an absolute total loss: Atty v. Lindo, 1 Bos. & Pul. N. R'. 236. So the capture and sale of an outward cargo will involve an ab- solute total loss of outward freight, although the vessel, on being repurchased by the master, may succeed in gaining a homeward freight: Wilson v. Forster, 6 Taunt. 25 (1 E. C. L. R.). Where however the insurance is effected on the homeward freight, on goods to be put on board by certain charterers, and no cargo is put on board by them, if a full freight is earned by the vessel returning home with a cargo belonging to other persons, the assured cannot recover for a total loss from the underwriters, even though the expenses of the vessel while detained waiting for another cargo exceed in amount the freight which she thereby earned: Everth v. Smith, 2 M. & Selw. 278, 284; Barclay v. Stirling, 5 Id. 6; Brocklebank v. Sugrue, 1 Moo. & R. 102. And see and consider Mackrell v. Simond, 2 Chit. Rep. temp. Mansfield 666. In the case of an insurance of profits, if there is a total loss of the goods on which the profits were expected to be made, the insurer may recover as for a total loss of the freight; and even if there has been only a partial loss of the goods, if the goods have been abandoned, a separate abandonment of the profits to arise from them is unnecessary : Barclay v. Cousins, 2 East 544, 551. In all these cases the loss must arise from the perils insured against, and there will be no claim against the underwriter unless the loss of freight be by reason of the perils insured against: Scot- tish Marine Insurance Company v. Turner, 1 Macq. H. L. Gas. 340. If, for instance, the loss of freight has been occasioned by reason of a sale of a sea-damaged cargo at an intermediate port, even when such sale took place in exercise of a wise discretion by the master, the underwriter will not be liable. See Hunter v. Prinsep, 10 East 378; Mordy v. Jones, 4 B. &, C. 394 (10 E. C. L. R.); Vlierboom v. Chapman, 13 M. & W. 230. *Upon the same principle, in Philpott v. Swann, 11 C. B. r*irT-i N. S.270(103E.C.L.R.),freigbtunderacharterwas'insured, for a voyage from the Cape of Good Hope to Hondeklip Bay, an open roadstead 180 miles up the coast, there to load a cargo of copper ore, to proceed therewith to Swansea, at a freight of forty shillings per ton. Arriving at Hondeklip Bay the master received on board part of 230 ROUX V. SALVADOR. the cargo (the whole being ready), -when a storm coming on, he was compelled to put to sea with the loss of an anchor, and an injury to his windlass; and, 'after beating about the offing, he deemed it ex- pedient to sail to St. Helena, a distance of about 1800 miles. Finding, on his arrival there, that he could not get an additional anchor, or the requisite repair, the master discharged the portion of the outward cargo which he had not landed at Hondeklip Bay and proceeded to Swansea with the homeward cargo, short by about 120 tons of a full cargo. The jury, although the master did not run for the Cape, where it appeared that the necessary repairs might have been obtained, found that the master acted throughout as a prudent owner uninsured would have done. It was held by the Court of Common Pleas that under these circumstances, the under- writers were not responsible as for a total loss of the freight of the IZp tons by perils of the sea. "The captain," said Willes, J., "was prudent in avoiding foul weather, but he was not prevented by perils of the sea from procuring the necessary repairs and earning the freight." See also Scottish Marine Insurance Company v. Turner, 1 Macq. H.^ L. Cas. 334. 2.' Of Constructive Total Loss. — As before observed, a construc- tive total loss takes place where the subject of insurance is not wholly destroyed, but is placed in such peril as to render the suc- cessful prosecution of the adventure improbable, and such as a prudent man uninsured would decline any further expense in following up. In such a case the insured, upon giving notice to the insurers that he abandons all his interest in the subject-matter assured, may treat the case as ■ a total loss. The notice of abandonment, as will be hereafter more fully shown, must be given within a reasonable time, it must be of the whole thing insured and unconditional in its terms. In the principal case. Lord Abinger, C. B., enumerates the cases in which a constructive total loss takes place. "There may," he observes, "be a capture, which, though primd faoie a total loss, may be followed by a recapture, which would revest the property in the assured. There may be a forcible detention, which may speedily terminate, or may last so long as to end in the impossibilty of bringing the ship or the goods to their destination. There may be some peril which renders the ship unnavigable, without any rea- ROUX V. SALVADOR. 231 sonable hope of repair, or by which the goods are partly lost, or so damaged that they are not worth the expense of bringing r*i7o *them, or what remains of them, to their destination :" Ante, p. 153. These and similar cases it is now proposed to examine in detail. * Constructive Total Loss of Ship. — Where a ship is captured, the assured has immediately a right to give notice of abandonment, and hb will be able to recover for a total loss, provided the capture or the total loss occasioned thereby continue to the time of abandoning and bringing the action. See Hamilton v. Mendes, 2 Burr. 1212. Where, however, at the time when the notice of abandonment is given, the assured is aware of the recapture (Hamilton v. Mendes, 2 Burr. 1198), or the recapture has actually taken place, and he is not aware of it (Bainbridge v. Neilson, 10 East 329; Parsons v. Scott, 2 Taunt. 363; Naylor v. Taylor, 9 B. & C. 718 (17 E. C. L. R.)), and even where the capture continues until the notice of abandonment, if the recapture takes place before action brought, the assured cannot claim to recover for a total loss. See Patterson t). Ritchie, 4 M. & Selw. 398; Naylor v. Taylor," 9 B. & C. 724 (17 E. C. L. R.); and Bro- . therston v. Barber, 5 M. & Selw. 418. In the last-mentioned case, the vessel insured was captured on the 19th of April. Notice of abandonment was given on the 25th of April, and the recapture and restoration of the ship took place before action brought. It was held by the Court of King's Bench, a partial damage having been sustained, that the assured could only recover for a partial loss. "This is," said Bayley, J., "a contract of indemnity only; the ship was captured in the course of her voyage. Now, capture is an event. which may or may not terminate ia a total loss; if it continue, and terminate in a total loss, the assured will be entitled to his full indemmty; but if the capture be only temporary, and the loss partial, it would be against the spirit as well as the letter of the contract to hold the underwriter bound to take the subject-matter insured, and to allow the assured, who stipulates only for indemnity, to come upon the underwriter for the whole amount of his subscription; while the subject-matter insured subsists in perfect safety. What is it that is thus to entitle the assured to demand more than the safety of the thing insured? It is said chat abandonment gives this right, by closing the transaction between the underwriter and as- 232 KOUX V. SALVADOK. sured. But notice of abandonment is no naore than a proposal on the part of the assured, -n-hich the underwriter may accept, and then there will be a new agreement between them, binding on both parties. But while the transaction rests in abandonment only on one side the underwriter's responsibility may vary, and cannot amount to a total loss, if, by subsequent events, it has become otherwise at the time of action brought." The mere, recapture, however of a ship; if, in consequence of the improper conduct of recaptors, the ship be not restored to the assured *or they have not. the means of recovering her, will not pre- J vent their claim for a total toss. Thus, in Dean v. Hornby, 3 E. & B. 180 (77 E. C. .L. R.), a ship was insured on a time- policy, for a year ending the 21st of April, 1852. In December, 1851, being on her homeward voyage from Valparaiso to Liverpool, she was captured by pirates in the Straits of Magellan. In January, 1852, she was recaptured by an English war-steamer, and a prize- master took the commandand brought her to Valparaiso. Intelli- gence of the facts reached the owners at one time, about the end of April, 1852, and they on the 30th of April, 1852, gave notice cf abandonment to the underwriters, stating that intelligence had ar- rived " of the condemnation at Valparaiso " of the vessel " as a prize to her Majesty's steamer." The underwriters refused to ac- cept notice. The vessel was sent home by the recaptors from Val- paraiso, under the command of a prize-master, with instructions to proceed to Liverpool, and obtain an adjudication in the Court of Admiralty. She met with bad weather, and put into Fayal on the 19th of August, 1852, where she was sold by the prize-master, being then in a state not justifying the sale. In December, 1852, the owners haying commenced an action against the underwriters, it was held by the Court of Queen's Bench that they were entitled to recover for a total loss. "The cases referred to," said Lord Campbell, C. J., " establish this principle, that if once there has been a total loss by capture, that is construed to be a permanent total loss, unless something afterwards occurs by which the assured either has the possession restored, or has the means of obtaining sucl) restoration. The right to obtain it is nothing; if that were enough to prevent a total loss, there never would in this case have been a total loss at all ; for pirates are the enemies of mankind, ' EOUX V. SALVADOK. 233 and have no right to the possession." See Kleinwort v. Shepard, 1 E. & E. 447 (102 E. C. L. R). Where, however, after the capture of a ship, notice of ahandon- ment has been duly given, although she he afterwards restored, if she be in such a state that her repairs would cost more than she is worth, the assured can recover for a total loss. See M'lver v. Henderson, 4 M. & Selw. 576. " The mere restitution of the hull," said Lord Ellenborough, C. J., "if the assured may eventu- ally pay more for it than it is worth, is not a circumstance by which the totality of the loss is reducible to an average one:" Id. 584. See also Brown v. Smith, 1 Dow. P. 0. 349 ; Ploldsworth V. Wise, 7 B. & C. 794 (14 E. C. L. R.) ; Lozana v. Janson, i! E. & E. 160 (105 E. C. L. R.). If the ship is restored in such a state as not to justify an aban- donment, the mere loss of the voyage will not have that effect : Fitzgerald v. Pole, Willes 641 ; 5 Bro. P. C. 131 ; Parsons v. Scott, 2 Taunt. 363; Falkner v. Ritchie, 2 M. & Selw. 290; Brown v. Smith, 1 Dow. P. C. 359; Doyle v. Dallis, 1 Mood. & Rob. 55 ; so that the *contrary doctrine upon this subject r*j '74 laid down in some of the earlier cases (Goss v. Withers, 2 Burr. 683 ; Hamilton v. Mendes, 2 Burr. 1198 ; Milles v. Fletcher, 1 Doug. 231 ; Cazalet v. St. Barbe, 1 Term Rep. 187 ; Rotch v. Edie, 6 Id. 413), by Lord Mansfield, Mr. Justice Buller, and Lord Kenyon, may be considered as overruled. The assured will not however be entitled to recover for a total loss, unless he has, during some period of the risk, been completely deprived of his ship. See Thornley v. Hebson> 2 B. & Aid. 513 ; there the crew of a vessel in distress, worn out by fatigue, deserted her in order to save their lives, and she was at the same time taken possession of by eight fresh men from the ship to which the crew had escaped, who volunteered, at the risk of their lives, to go on board the vessel in distress, in the hope of bringing her into port, and thus earning salvage. They succeeded in bringing the vessel into port, where she was sold under a decree of the Admiralty Court to pay for the salvage. Notice of the abandonment had been given. It did not however appear that the assured had taken any means to prevent the sale. It was held by the Court of King's Bench that the assured had no right to abandon, and could only recover for a partial loss. "Where a ship is captured," said Bay- 234 ROUX V. SALVADOR. ley, J., " she is taken possession of by persons adversely to the owner, and so it is in the case of barratry ; but here the ship was taken possession of by persons acting, not adversely, but for the joint benefit of themselves and the owners, and the latter were never dispossessed of the vessel. The desertion of the crew therefore does not amount to a total loss." It was also held that the sale did not amount to a total loss, as it did not appear that the sale was necessary, or that the owners might not have prevented it. If there be an arrest, detention, or embargo of a ship, unless it is of very short duration (Foster v. Christie, 11 East 205), the shipowner will primd facie have an immediate right to abandon: Rotch V. Edie, 6 Term Rep. 413. Although in the event of the recapture or restoration of the ship before action brought, there can be no claim for a total loss {ante p. 172), in order to escape from the inconvenience of the rule the parties to the insurance may stipulate that the loss shall be paid for as total, a certain length of time after official news of the capture or embargo. See Fowler v. The English and Scottish Marine Insurance Company, 18 C, B. N. S. 818 (114 E. C. L. R.). There a policy was effected on a Prussian ship, valued at 2500Z., against such risks only as were excluded by the clause " warranted free from capture, seizure, and detention, or the consequences of any attempt thereof." With a stipulation that the insurers " should pay a total loss thirty days after receipt of official news of capture or embargo, without waiting for consummati6n." The ship was ^^„f., detained by an embargo in a Danish *port, after the break- ■J ing out of hostilities between that power and Germany. It ■was held by the Court of Common Pleas that the right of the as- sured to claim for a total loss became invested on the expiration of the thirty days, notwithstanding that the vessel had never been actu- ally, taken out of the possession of the captain, and was afterwards (and after action brought) restor^ and arrived in safety in London. It was also held that the entry of the fact of the embargo, in Lloyd's " Loss Book," however the intelligence might have been received was sufficient to satisfy the term " official news " in the policy. Where a captured vessel has been bought by the master, if no notice of abandonment has been given, he will be considered as agent for the owners, and upon his restoring her to them, they will \ ROUX V. SALVADOR. 235 only be entitled to claim for an average loss : M'Masters v. Shool- bred, 1 Esp. 236. It was admitted however by the Court in that case, "that when the ship had been captured and carried into port in the enemy's possession, the insured might then have abandoned it, and so have made it a total loss : Id. p. 239. See also Wilson V. Forster, 6 Taunt- 25 (1 E. C. L. R.) ; 1 Marsh. 425 (4 E. C. L. R.). We have before seen in what cases the assured is entitled to re- cover for a total loss of the ship without notice of abandonment. There are, however, as observed in the principal case by the Chief Baron, "intermediate c&ses." Thus, where the ship has been re- duced to such a state by the perils insured against that she cannot keep at sea without repairs, and the repairs either cannot be efiFected in the place where the injury occurs (Somes v. Sugrue, 4 C. & P. 283 (19 E. C. L. R.), or, if being in a place where they may be done, he has no funds in his possession, and is not able to raise any : Read v. Bonham, 3 B. & B. 147 (7 E. C. L. R.)), unless his ina- bility arises from the fault of the agents or correspondents of the assured (Tanner v. Bennett, R. & M. 182 (21 E. C. L. R.)), then the master is justified in selling the ship, and the assured, on giving due notice of abandonmenf, may recover for a total loss. The mere fact that the rate of bottomry interest is extravagantly high (Somes v. Sugrue, 4 C. & P. 276 (19 E. C. L. R.) ; Morris V. Robinson, 3 B. & C. 196 (10 E. C. L. R.) ; 5 D. & R. 34 (16 B. C. L. R.) ; Cannan v. Meaburn, 1 Bing. 243 (8 E. C. L. R.) ; 8 Moore 127 (17 E. C. L. R.)), or that there is a difficulty in procur-' ing materials for repairs (Furneaux v. Bradley, Park on Ins. 365), will not justify a sale by a master, nor consequently an abandon- ment by the assured. For it will be found on an examination of the authorities that the right to abandon depends, not upon the fact that a sale has been eifected by the master, but upon the fact whether the sale was or not, under the circumstances, justifiable. See Milles V. Fletcher, 1 Doug. 232 ; Plantamour v. Staples, 1 Term Rep. 611 n. ; 1 Mood. & Rob. 117. A sale will be justifiable, and consequently on giving notice the assured can recover as for a constructive total loss, either when *there is no reasonable hope of 'extricating the vessel at all r*i yg (Idle V. Royal Exchange Assurance Company, 3 Moore 115 (4 E. C. L. R.) ; 8 Taunt. 755 (4 E. C. L. R.) ; 3 B. & B. 151 n. 236 KOUX V. SALVADOE. (7 E. C. L. R.) ; Hunter v. Parker, 7 Mees. & W. 322), or of ex- tricating or repairing her except at a cost greater than her value ■when repaired : Robertson v. Caruthers, 2 Stark. 571 (3 E. C. L. R.); Robertson v. Clarke, 1 Ring. 445 (8 E. L. C. R.); 8 Moore 622 (17 E. C. L. R.) ; Mount v. Harrison, 4 Ring. 388 (13 E. 0. L. R.) ; 1 Moo. & P. 14 (17 E. C. L. R.) ; De Cuadra v. Swann, 16 C. R. N. S. 772 (111 E. C. L. R.). In all these cases the assur.ed will not be able to claim as for a constructive total loss, unless, at the time of the sale, that proceeds ing appeared, in the prudent exercise of the best and soundest judg- ment that could then be formed, to be most beneficial to all parties concerned : see Morris v. Robinson, 3 R. & G. 196 (10 E. C. L. R.) ; 5 D. & R. 35 (16 E. C. L. R.) ; Cannan v. Meaburn, 1 Ring. 243 (8 E. C. L. R.) ; 8 Moore 127 (17 E. C. L. R.) ; Doyle v. Dallas, 1 Mood. & Rob. 48 ; Gardner v. Salvador, 1 Mood. & Rob. 116 ; Knight v. Faith, 15 Q. R. 649 (14 E. C. L. R.) ; Dommett V. Young, 1 C. & M. 465 (41 E. C. L. R.) ; but where such a judg- ment has been exercised, he can claim for a constructive total loss, even although the vessel has been recovered and repaired by the purchaser at a cost much less than her repaired value : Idle v. Royal Exchange Assurance Company, 3 Moore 115 (17 B. C. L. R.) ; 8 Taunt. 755 (9 E. C. L. R.) ; Robertson v. Caruthers, 2 Stark. 571 (3 E. C. L. R.). And it is immaterial whether the sale be effected by the master alone, or by the master with the sanction of one of the part- owners (Idle V. Royal Exchange Assurance Company, 3 Moore 115 (17 E. C. L. R.) ; 8 Taunt. 755 (4 E. C. L. R.)), or even by the owner or a part-owner who is also master. See Green v. Royal Ex- change Assurance Company, 1 Marsh. 447 (4 E. C. L. R.) ; 6 Taunt. 68 (1 E. C. L. R.) ; Doyle v. Dallas, 1 Mood. & Rob. 48 ; Knight V. Faith, 15 Q. R. 649 (69 E. C. L. R.). A sale, however, of the vessel is not essential in such cases in order to enable the assured to recover for a constructive total loss, for it is clear that where the estimated costs of the repairs of a vessel exceed the repaired value, the assured may, without a sale, upon giving a proper notice of abandonment, recover for a construc- tive total loss : Allen v. Sugrue, 8 R. & C. 561 (15 E. C. L. R.) ; 3 M. & R. 9 ; Young v. Turing, 2 M* & Gr. 593 (11 E. C. L. R.). As to the nature of the repairs, the cost of which will exceed the value of the ship, the mode of estimating their cost, and the value ROUX V. SALVADOR. 23 of the ship ; seeKeid v. Darby, 10 East 143 ; Doyle v. Dallas, Mood. & Rob. 48 ; Thompson v. Colvin, LI. & Wels. 140 ; Read 1 Bonham, 3 B. & B. 147 (7 E. C. L. R.) ; Morris v. Robinson, 3 I & C. 196 (10 E. C. L. R.); 5 D. & R. 35 (16 E. C. L. R.) ; Cat nan v. Meaburn, 1 Bing. 243 (8 E. C. L. R.) ; Somes v. Siigrue, 4 C. & P. 276 (19 E. C. L. R.) ; Mount v. Harrison, 4 Bing. 38 (13 E. C. L. R.); Gardner v. Salvador, 1 Mood. & Rob. 116 ; Phi lips V. Nairne, 4 C. B. 343 (56 E. C. L. R.); Allen v. Sugrue, B. & C. 561 (15 E. C. L. R.) ; 3 M. & R. 9 ; Dans. & LI. 188 Young V. Turing, 2 M. & G. 593 (40 E. C. L. R.) ; 2 Scott, N. J 752 (30 E. C. L. R.); Manning v. Irving, 1 C. B. 168 (50 E. ( L. R.) ; 6 C. B. 391 ; 1 H. L. Cas. 287 ; Grainger v. Martin, *B. & S. 456 (101 E. C. L. R.); The African Steamship ^-^^ Company' v. Swanzy, 2 K. & J. 660. Where the master of a ship, instead of selling or abandoning hei electsto repair her, raising money for the purpose by a bottomr bond, the owner will not, on the arrival of the vessel at home, b entitled to abandon because the amount spent on repairs is greate than the value of the ship, as shown hy her sale in order to satisf the bottomry bond: Benson v. Chapman, 6 M. &. G. 792 (40 E. C L. R.); Chapman v. Benson, 5 C. B. 330 (57 B. C. L. R.); 2 B L. Cas. 696. And see Rosetto v. Gurney, 11 C. B. 176 (73 E. C L. R.). Where however the owner of a vessel relinquished his intentio of abandonment, in consequence of the underwriters requesting hir not to do so, and ordering repairs for which a bottomry bond wa given, upon the refusal of the underwriters to pay the bottomr bond on the arrival of the ship, in consequence of which the shi was sold, they were held liable for all damage which accrued to th owner in consequence of that refusal: Da Costa v. Newnham, Term. Rep. 407. Constructive total loss of Goods. — As, in the case of a ship, if th cargo has been captured, and there is a spes recuperandi, it is n< cessary for the assured to give notice of abandonment in order tha he may recover as for a total loss (Tunno v. Edwards, 12 East 488 Goldsmid v. Gillies, 4 Taunt. 802) ; but even if he had given notic in such a case, his right to recover as for a total loss will be divesi ed if the cargo be restored before action brought: Naylor?^. Tayloi 238 KOUX V. SALVADOK. 9 B. & C. 718 (17 B. C. L. R.); 4 M. & R. 526; Dans. & LI. 2^0. But this will not be the case where the goods have not been effectively restored to the hands of the owners after a capture, as, for instance, where, after a recapture, they have been detained in consequence of an embargo (Cologan v. London Assurance Company, 5 M. & Selw. 447); or where, after the goods have been ordered to be restored to the owners, it becomes impossible to take them to their port of des- tination in consequence of its being blockaded: Barker v. Blakes, 9 East 283. So where after desertion of the ship by the crew, notice of abandonment has been duly given by the owner of the goods, their delivery to his agent abroad, before action brought, so much damaged that they would have been worthless if sent on to their port of destination, T^ill not be considered to be such a resto- ration as will defeat the abandonment made on the desertion of the ship by the crew: Parry v. Aberdein, 9 B. & C. 411 (17 E. C. L. R.); and see Lozano v. Janson, 2 E. & E. 160 (105 E. C. L. R.). The mere fact of goods being sent to this country hy persons acting neither as agents nor on behalf of the assured, will not be considered such a restoration as will defeat a notice of abandon- ment properly given. See Dixon v. Reid, 5 B. & Aid. 597 (7 E. C. L. R.); there a ship with its cargo was *barratrously J taken out of her course by the crew to Barbadoes, where the ship was condemned and sold, and part of her cargo (47 logs of timber) was also sold to pay the charges incurred there, and the re- mainder, consisting of 186 logs, was forwarded to London by an- other vessel. The insured abandoned to the underwriters. Dn the arrival of the logs, the plaintiff at first proposed to settle the loss with the underwriters at 69Z. 9s. Qd. per cent., but they refused to settle upon those terms, and the logs were afterwards sold, but not by the plaintiff, who brought an action for a total loss. It was held by the Court of King's Bench to be a case of total loss. "Here," said Abbott, C. J., "by the fraud and barratry of the master and mariners, the cargo was taken out of the possession of the assured. From that time it became to them a total loss. The payment of the wages at Barbadoes and the sending home of the 186 logs were not the acts of the assured, or any person authorized by them. I think therefore that this was a total, and not an average loss." Notwithstanding some of the older decisions (Manning v. Newn- ROUX V. SALVADOR. 239 ham, 3 Doug. 130 (26 E. C. L. R.); Millesw. Fletcher, Doug. 231), it appears now to be settled that a mere loss or retardation of the voyage for the season is not a constructive total loss on imperishable goods, and will only be considered so with respect to perishable goods when they have received such sea-damage as that they could not be forwarded from their port of distress so as to arrive at their port of destination in a merchantable state, or except at an expense exceeding the value of the goods. Thus, in Anderson v. Wallis, 2 M. k Selw. 240, there was a policy of assurance on goods, consist- ing of, copper and iron, warranted "free of particular average," at and from London to Quebec, and the ship, owing to sea-damage in the course of her voyage, was obliged to run into the nearest port — Kinsale in Ireland — to undergo repairs. She could not however be repaired in time to prosecute her voyage that season. There was not any ship at Kinsale or Cork to be procured to forward the cargo, so that the voyage was abandoned, and the captain ultimately sailed on another voyage. The cargo was damaged and sold as a damaged cargo at Kinsale, and notice of abandonment was duly given. It was held by_ the Court of King's Bench that this was not a total loss of the goods, and that the assured could not abandon : "The case of an interruption of the voyage," said Lord Ellenborough, C. J., "does not warrant the assured in totally disen- gaging himself from the adventure, and throwing this burthen on the underwriters. It is unnecessary to pursue the subject farther, as there is not any case or any principle which authorizes an abandon- ment; unless where the loss has. been actually a total loss, or in the highest degree probable at the time of abandonment." The result will be the same *where, although the thing ; . r*179 insured is of a perishable nature, it is not so sea-damaged "- as to render it likely to be spoiled if kept until another vessel can be found to forward it to its port of destination: Hunt v. Royal Exchange Assurance Company, 5 M. & Selw. 47. See also Van Omeron v. Dowick, 2 Campb. 42; Wilson v. Millar, 2 Stark. 1; Un- derwood v. Robertson, 4 Campb, 138; Wilson v. Royal Exchange Assurance Company, 2 Campb. 623. Although the cargo is at one time so far lost (for instance, by submersion) as to give a right to abandon, yet if no notice of aban- donment be given, and it is afterwards recovered in such a state as that it can be forwarded to its port of destination in a marketable 240 KOUX V. SALVADOR. condition, the assured cannot by selling treat the case as one of total loss. See Andersons. Royal Exchange Assurance Company, 7 East 38, and ante, p. 149, where it is alluded to by the Chief Baron in the principal case. See also Thompson v. Royal Exchange Assurance Company, 16 East 214. So if only a part of the cargo can be forwarded by the master to its destination, he cannot by selling the whole make the loss total: Freeman v. East India Company, 5 B. & Aid. 617 (7 E. C. L. R.) ; Morris v. Robinson, 8 B. & C. 196 (10 E. L. C. R.); 5 D. & R. 34 (16 E. C. L. R.); Cannan v. Meaburn, 1 Ring. 243 (8 E. C.L. R.); 8 Moore 127 (17 E. C. L. R.) ; Moss v. Smith, 9 C. B. 94 (67 E. C. L. R.). Where however the goods are sold because they are so sea-dam- aged, that if sent on to their port of destination they would be worth nothing, this would be clearly a case of total loss: Parry v. Aber- dein, 9 B. & C. 411 (17 E. C. L. R.)'; and see Reimer v. Ringrose, 6 Exch. 263. On the other hand, if the damage is reparable, the loss is total or partial, according to circumstances. If the damage cannot be repaired without laying out more money than the thing is worth, the reparation is impracticable, and therefore as between the under- writers and the assured impossible. If it can, the cargo is then practically capable of being sent in a marketable state to its port of destination, the master canno.t sell it and the assured cannot recover as for a constructive total loss. And the same" rule applies if a part only of the cargo can be saved: per Jervis, C. J., in Rosetto V. Gurney, 11 C. B. 186 (73 E. C. L. R.) ; sed vide Gernon v. Royal Exchange Assurance Company, Holt N. P. 52 (3 E. C. L. R.); 6 Taunt. 383 (1 E. C. L. R.) ; 2 Marsh. 88 (4 E. C. L. R.) ; Hudson' V. Harrison, 3 B.- & B. 97 (7 E. C. L. R.); 6 Moore 288 (17 E. C. L. R.). Constructive total loss of Freight. — Primd facie the assured on freight has a right of abandoning freight where there has been a constructive total loss of ship : per Tindal, C. J., in Benson v. Chap- man, 6 M. & G. 810 (46 E. C. L. R.). Thus if a vessel be captured or detained by arrest or embargo, and the assured on freight gives notice of abandonment, he may recover as for a total loss of freight if he bring his action before any freight is earned : Thompson v. Rowcroft, 4 East 34. KOUX V. SALVADOK. 241 *But although a constructive total loss of freight may have p^-. q« taken place, and notice of abandonment may have been duly given, if the ship arrive earning freight before action brought, the assured cannot recover for a total constructive loss : M'Carthy v. Abel, 5 East 388 ; and if any freight be ultimately earned, it is im- material whether it be the particular freight contracted for or not : Everth v. Smith, 2 M. & Selw. 2T8. A mere retardation of the voyage will not give the assured on freight a right to recover as for a total loss, if it does not prevent the freight from being ultimately earned : Id. See also Barclay v. Stirling, 5 M. & Selw. 6 ; Brockelbank v. Sugrue, 1 Moo. & Rob. 102. Nor will the loss be rendered total, by the fact that the freight when earned has been swallowed up by bottomry charges : Benson V. Chapman, 6 M. & G. 792 (46 E. 0. L. R.); 5 C. B. 330 (57 E. 0. L. R.); 2H. L. Cas. 696. The assured on freight will primd facie have a right to abandon on receiving intelligence of the loss or disability of the ship, but if the goods are transshipped, he will be entitled to recover for a total loss in case the subsntuted ship does not arrive before action brought : 2 Arn. Mar. Ins. 980, 981, 3d ed. ; secus, if the sub- stituted ship arrives and the freight be earned before action brought : Id. When the ship and cargo are justifiably sold abroad, this will amount to a total absolute loss of freight, and no notice of abandon- ment will consequently be necessary ; but when the ship is not jus- tifiably sold, that is to say, where it could have been repaired, or the cargo have been forwarded by another vessel, such notice is inope- rative, for it has been well said that, " if the loss of freight be not total in its nature, abandonment cannot make it so:" Chapman v. fienson, 5 C. B. 363 (57 E. C. L. R.) ; and >ee Idle v. Royal Ex- change Assurance Company, 8 Taunt. 755 (4 E. C. L. R.); 3 Moore 115 (4 B.C. L. R.) ; 3 B. & B. 151, n. (d) (7 E. C. L. R.) ; Parmeter v. Todhunter, 1 Campb. 541 ; Green v. Royal Exchange Assurance Company, 6 Taunt. 68 (1 E. C. L.. R.); 1 Marsh. 447 (4 E. 0. Ifl. R.). Sed vide Knight v. Faith, 15 Q. B. 649 (69 E. C. L. R.). The mere liability to repair a ship so as to send on the entire cargo by her will not amount to a constructive total loss of freight. Thus, in Moss V. Smith, 9 C. B. 94(67E. C. L. R.),aship valued at 12,000Z. was 16 242 KOUX V. SALVADOK. insured from Valparaiso to England. The freight, valued at 4000Z., was also insured by a separate policy. The ship having sailed with a full cargo, consisting of 800 tons of merchandise, was compelled, by stress of weather, to put back to Valparaiso, where the master, finding, upon survey, that to repair her, so as to enable her to bring home the entire cargo, would cost a sum exceeding the value of the freight, though less than the value of the ship when repaired, sold her. It was held by the Court of Common Pleas not to be a total loss either of ship or freight. " The only lossin question here," said Maule, J., "is a loss of freight as ""incident to the loss of -I the ship. If the ship was so irreparably damaged, — ^con- sidering the damage to be irreparable in the view I have mentioned, and which I take to be well established, — to the extent that she could not bring home any part of the cargo, then that would be a total loss of freight. If the ship was damaged to such an extent only as that she might have been repaired so as to have been able to bring home part of the cargo, but not the whole, then there would be a total loss of that part of the freight which the ship was thus incapacitated from earning." * It is clear that there will be a total loss of freight if the cargo be so damaged by the peril of the sea in the course of the voyage as to render it impossible (except at an expense which would greatly exceed its value on arrival) to carry it to its port' of destination : Michael v. Gillespy, 2 C. B. N. S. 62T (89 E. C. L. R.). See and consider Mount v. Harrison, 4 Bing. 388 (13 E. C. L. R.) ; 1 M. & P. 14 (17 B. C. L. R.). As' to the right of underwriters in questions of total loss to have inspection of documents such as the correspendence between the captain and owner, see Rayner v. Ritson, 14 "W. R. (Q. B.) 81. 3. What is necessary in order to constitute a valid Abandonment. — Where an absolute total loss takes place, in which case, as we have before seen, no abandonment is necessary, the insurer will be entitled to whatever is ultimately saved, and it is termed "Salvage loss without notice of abandonment." Thus in the principal case, where the damaged hides had been sold at an intermediate port. Lord Abinger, C. B., said that " the proceeds of such sale would be considered as salvage to the party who was to sustain the loss," i. e. the underwriter. Ante, p. 150. ROUX V. SALVADOR. 243 When the assured receive intelligence of. such a loss as entitles them to abandon, they have the option to treat the loss either as total or average. If they elect to treat it as a total loss, they must give notice of abandonment to the underwriters within a reasonable time: Mitchell v. Edie, 1 Term Rep. 608 ; and what is a reasonable time is a matter of law for the decision of the Court, and depends upon the peculiar circumstances of each case : Hudson v. Harrison, 3 B. & B. 106 (7 B. C. L. R.). Where the assured has received certain intelligence of a disaster such as gives him a right to abandon (Hunt v. Royal E.xchange Assurance Company, 5 M. & Selw. 47 ; Aldridge v. Bell, 1 Stark. 498 (2 E. 0. L. R.) ; Read v. Bonham, 3 B. & B. 147 (7 E. C. L. R.) ; Fleming v. Smith, 1 H. L. Cas. 514), or of the ship's capture or detention in a foreign port (Mullett v. Shedden, 13 East 304 ; Mellish V. Andrews, 16 East 13), immediate notice of the intention to abandon must be given to the underwriters by the assured, with- out waiting to see what will be the result. The assured however cannot be expected to give notice until after he has had certain and accurate *information of the disaster j-^^ no (Read v. Bonham, 3 B. & B. 147 (7 E. C.-L. R.)), and he is '" entitled to a reasonable time for acquiring a full knowledge of the state and nature of the damage done to the thing insured before he is bound to elect whether he shall abandon to the underwriters for a total loss or not, but he will not be allowed to lie by in order to ascertain, from the state of the markets or for any other reasons, whether it will be most for his benefit to treat the loss as total or partial. This is Well laid down in the case of Gernon v. The Royal Exchange Assurance Company, 6 Taunt. 383 (1 E. C. L. R.). There a cargo of sugar had been insured from Liverpool to Calais, or the ship's port of discharge in the British Channel. The ship sailed on the 1st December, 1814, and meeting with tempestuous weather on the 20th, put back into Liverpool. On the same day, one of the owners there resident apprised his agent in London of her return, and that it was presumed there would be some damage from the sea-water. This was stated to the defendants "on the 22d. On the 21st, surveyors were employed to inspect the condition of the sugar. On the 24th the owners wrote that the cargo had been discharged and was abofit to be surveyed, that from appearances the damage would not be equal to what they had feared, and they 244 ROUX V. SALVADOR. requested the underwriters' permission to proceed to Havre or to the ship's original destination. To this communication the defend- ants refrained from making any observation. On the 29th the owners again wrote for permission to go to a second port, and added, that after a minute inspection of the sugars, 290 boxes were found to have received damage, and that it was impossible to say how far the real injury might extend. On the 2d of January, the defendants being applied to for instructions, declined giving any directions upon the subject of the damaged goods. On the 7th of January, the owners having obtained a formal protest and certificate of survey and of the damage of the cargo, sent them to the defend- ants, adding, that by the latter it appeared that the greater part of the cargo was destroyed, and that the whole of it had suffered dete- rioration, insomuch that they could not think of sending any part of the cargo forward, and they signified to the insurers their inten- tion of abandoning the whole, and that it would be brought to sale on a day named. At the trial, Gibbs, C. J., left to the jury the question whether the time which the plaintifi" had taken for making the abandonment was longer than was sufBcient for ascertaining and judging the state of the cargo; and the jury found that the assured had abandoned in a reasonable time, and found a verdict for the plaintiff. And the Court of Common Pleas afterwards discharged a rule to set aside the verdict. "It is v6ry true," said Gibbs, C. J., in delivering the judgment of the Court, " that the assured must *18^T *^^*y^ *elect in the first instance whether he will consider -I a loss as partial and take to the property himself, or as total and abandon to the underwriter. This is the law in all cases where the assured has his election, by abandoning or not abandoning, to treat the loss as total or partial. But it is equally true that the first instance means, after the assured has had a convenient opportunity of examining into the circumstances which render abandonment expe- dient or otherwise, because it is on the result of that examination that he is to make up his mind whether he will abandon or not. Let it not be supposed that I accede to the proposition that the assured may use this latitude as an opportunity to judge of the state of the markets, and, as the markets fall or rise, to elect whether he will abandon or not abandon. He has no right to govern his conduct by any such rule. tThe only examination he may make is into the actual state of the cargo. ... It was not ROUX V. SALVADOR. 245 competent to set up the abandonment on the 7th of January, if the assurers were fully apprised of the facts on the 29th of December ; but I think it appears, from all the circumstances, that they were not so apprised on the 29th, and that the cargo had not then under- gone so full an examination as was afterwards made. They ought to have a reasonable and convenient time for their "inspection;" if they had been dilatory in making their survey it would have been a very different case, though the plaintiff ought not to be pressed too closely on this point; yet, if he had been grossly negligent and had slept over the business, I think it would have been an answer to the plaintiff's demand ; but here is no unreasonable delay, and therefore we think there is no ground for saying the abandonment was made at too late a period. See s. c. 2 Marsh. 88 (4 E. C. L. R.); and Hudson v. Harrison, 3 B. & B. 106 (7 E. C. L. R.). • The assured will not be allowed to lie by and treat the loss as an average loss, and then afterwards give notice of abandonment to the underwriters because he finds it more to his advantage to treat the loss as total. Thus, in Anderson v. Royal Exchange Assu- rance Company, 7 East 38, where- a vessel laden with corn was stranded near Waterford on the 28th of January, and the vessel continued at high tide under water for near a month, during which time, from the 31st, the assured at low water were employed in saving the cargo, the whole of which was damaged, but the greater part recovered and kilndried. The assured did not give notice of abandonment to the underwriters until the 18th of February. It was held by the Court of Queen's Bench that the notice was not given in time. " It was not in fact," said Lord Ellenborough, C. J., "as it turned out, a total loss; but during the time it was submersed in water it might have been treated as such. The assured, however, did not treat it as a total loss on their own ac- count, but *continued laboring on the vessel and cargo on their own accoUnt for some time afterwards, from the 31st '- of January till the 18th of February, and had succeeded in pre- serving part of it, and did not elect to abandon till they found that it would not answer to keep to the cargo; and when they did abandon, it was no longer in fact a total loss." And Le Blanc, J., tersely observed, " The assured must not take the chance of en- deavoring to make the best of the accident for himself, and when he finds that it does not answer, then to abandon to the under- 246 KOUX V. SALVADOK. ■writers." See also Allwood v. Henckell, Park 399 ; Baker v. Blakes, 9 East 283 ; Fleming v. Smith; 1 H. L. Gas. 613. Upon the same principle as is laid down in the principal case, the assured may preclude himself from recovering for a total loss, if, by any view to his own interest, he voluntarily does, or permits to be done, any act whereby the interests of the underwriter may be prejudiced in the recovery of the money arising from the sale of the property insured. And the learned judge who decided that case gives as an illustration of the principle what was in reality decided in Mitchell v. Edie, 1 Term Rep. 608. " Suppose," he says, "that the money received from the sale -should be greater than or equal to the sum insured, if the assured allows it to remain in the hands of his agent, or of the party making the sale, and treats it as his own, he must take upon himself the consequence of any subsequent loss that may arise of that money, and cannot throw upon the underwriter a peril of that nature." Ante, p. 155. See also Allwood v. Henckell, Park 399, 8th ed. An abandonment cannot be partial, it must be of the whole thing insured : Smith's Merc. Law 391, 6th ed., and it must be abso- lute and unconditional : M'Masters v. STioolbred, 1 Esp. 238, and consequently a person who has not an absolute and unconditional right to the possession of the goods injured cannot make a valid abandonment : Conway v. Gray, 10 East 636. Although an abandonment is generally in writing, it may be by parol : Parmeter v. Todhunter, 1 Campb. 641 ; Read v. Bonham, 3 B. & B. 147, 149 (7 E. C. L. R.) ; but in either case it must be express and unequivocal. Thus, in Parmeter v. Todhunter, 1 Campb. 641, where the insurance-broker stated to the underwriters that the ahip insured had been captured, recaptured, and taken into a foreign port, and required them to. settle as for a total loss, and to give direction as to the disposition of the ship and cargo, it ^was held by Lord Ellenborough, C. J., that this did not amount to an abandonment. " There is," he observed, "no implied abandonr ment by a demand of a total loss. It would be very well to pre- vent parol abandonments entirely ; but if they are allowed, I must insist upon their being express. ■ An implied parol abandonment *1861 '® *°° uncertain and cannot be supported. *The abandon- ment must be express and direct, and I think the word 'abandon' should.be used to render it effectual." So likewise ROUX V. SALVADOR. 247 where a letter stating the damage done to a cargo insured was shown to the underwriters, and they desired that "the assured would do the best they could with the damaged property," Lord Kenyon, C. J., held that this did not enable the assured to go for a total loss: Thelluson v. Fletcher, 1 Esp. 73; see also Lockyer v. Offley, 1 Term Rep. 252 ; Da Costa v. Newnham, 2 Id. 407 ; Have- lock V. Rock wood, 8 Id, 277. Notice of abandonment must be given by the assured, or by a person having authority from him to give it. Thus it was held in Jardine v. Leathley, 3 B. & S. 100 (113 E. C. L. R.) ; and 32 L. J. Q. B. 132, that the person with whom a policy of insurance on ship had been simply deposited as a security for a loan to the owner of the ship, had no implied authority to give a notice of abandonment to the underwriters; and that a notice given by him without the express authority of tlie owner could not enure for the benefit of the latter, so as to enable him to recover as on a constructive total loss. But the underwriters may by their conduct acquiesce, so as to be bound by an informal notice of abandonment: Hudson w. Harrison, 3 B. & B. 97 (7 E. C. L. R.). Where notice of abandohment has been accepted by the under- writers it is irrevocable, even although the thing insured be restored before action brought: Smith t). Robertson, 2 Dow, P. C. 474; and see King v. "Walker, 3 Hurlst. & C. 209, 214, reversing s. c. 2 Hurlst. & C. 384 ; and their title to the thing abandoned will have relation back to the time of the alleged loss : Cammell v. Sewell, 3 Hurlst. & N. 617. An acceptance of an "abandonment may be either written or parol, or it may be inferred from the acts of the underwriters, without either a written or a verbal communication: Hudson v. Harrison, 3 B. & B. 97 (7 E. C. L. R.); 6 J. B. Moore 288 (17 E. C. L. R.); but it should be distinct and unequivocal: Thelluson v. Fletcher, 1 Esp. N. P. 72. If the underwriters upon receiving notice of abandonment wish to dispute it, they should do so within a reasonable time; otherwise they will, by lying by, be held to have acquiesced in, and will consequently be bound by the notice. See Hudson V. Harrison, 3 B. & B, 97 (7 E. C. L. R.) ; Smith v. Robertson, 2 Dow, P. C. 474. Abandonment may before its acceptance be revoked or waived by the act of the assured. No acts of the master, acting as agent for 248 ROUX V. SALVADOR. both parties with regard to the. property insured, will have that effect (2 Arn. Mar. Ins. 863, 3d ed.); nor will the acts of the in- sured have that effect unless they unequivocally amount to acts of ownership. Thus, after notice of abandonment, a direction by the assured to a Government agent to sell a ship which had been re- covered from a mutinous crew (the cargo having been previously *l8fil ^^^^) ^^^ *held not to amount to a waiver of the notice: j3rown v. Smith, 1 Dow, P. C. 349 ; and see Allen v. Sugrue, Dans. & LI. 190, note (a); Stewart v. Greenock Marine Insurance Company, 2 H. L. Cas. 159. 4. The Uffects of Abandonment on the Rights and Liabilities of the parties to the Contract of Insurance. — The effect of an aban- donment operates as an assignment to the insurers, except in the case of an abandonment of a ship where in consequence of the Registry Acts, the abandonment does not absolutely vest the ship in the insurers, for it enures only as a binding agreemenf to assign the ship, the assured in the meantime, being trustees for the underwriters : Scottish Marine Insurance Company of Glasgow v. Turner, 1 Macq. H. L. Cas. 334, 342 ; Stewart v. The Greenock Marine Insurance Company, Id. 328, 331. The thing insured, when thus transferred by abanddnment to the underwriters, is termed the salvage ; and hence it is that losses, which give the right of abandonment, are known, in Insurance law, as salvage losses, or total losses, with benefit of salvage : 2 Am. Mar. Ins. 866, 3d ed. The result of abandonment is that aJl incidents to the thing abandoned pass with it; thus any claims on account of damage arising, from collision, caused by the fault of another ship, will pass to the underwriters, who may commence an action in the name of the assured: Yates v. Whyte, 4 Bing. N. C. 272 (33 E. C. L. R.); 5 Scott 640. Upon the same principle it was held that underwriters who had paid a total loss on British ships captured by the Spaniards, were entitled as salvage to the proceeds of Spanish ships captured by way of reprisals, which had been distributed by the British Government amongst the assured: Randall v. Cockran, 1 Ves. 98. So where, after the abandonment of a ship,, the assured on freight becomes entitled to be indemnified against its loss, the underwriters ROUX V. SALVADOR. 249 can claim any other freight earned by the ship in her voyage, instead of that insured : Green v. Royal Exchange Assurance Company, 6 Taunt. 68 (1 E. 0. L. R.); 1 Marsh. 447 (4 E. C. L. R.); and see Everth v. Smith, 2 M. & Selw. 278 ; Brocklebank v. Sugrue, 1 Mood. & R. 102. Upon the same principle the freight pending at the time of the casualty or earned by a ship after abandonment will belong, not to the. shipowner, but to the underwriters on ship. Thus, in Stewart v. The Greenock Marine Insurance Company, 1 Macq. H. L. Cas. 328, the "Laurel" sailed from Quebec for Liverpool on the 14th of July, 1842. On the 27th of July she was damaged by an iceberg, but on the 11th of August was brought into the Mersey, where, on the receding of the tide, she took ground, and sustained further in- jury. Nevertheless, on the 12th of August, she was floated into dock, and moored. On the 13th or 14th of August she delivered *her cargo, which consisted of timber, to the consignees, r*iQ'T who duly made payment of the freight. The ship afterwards being found not worth repairing, was abandoned to the underwriters on ship. It was contended on behalf of the shipowners that they were entitled to the freight, inasmuch as it had been earned before the abandonment, and that a decision in favor of the underwriters would give to the abandonment a retrospective operation. The House of Lords, however, held that the underwriters were entitled to the freight. " In my view of the case," said Lord Cottenham, C, " it is not material whether the total loss is to be considered as having been completed on the 27th of July or on the 12th of August, for the voyage was not completed at either of these two dates. It was indeed argued that the voyage had been completed at the latter date, and the freight earned at that time ; the freight was, in fact, subsequently earned by the delivery of the goods, but at the last date to which the total loss can be referred, namely, the 12th of August, it had not been earned. ... In all cases in which the subject is not actualjiy annihilated, the assured is entitled to claim, and claiming as upon a total loss, must give up to the under- writers all the remains of the property recovered, together with all benefit and advantage belonging or incident to it, or rather such property vests in the underwriters. Now the freight which a ship is in the course of earning is a benefit or advantage belonging to it, and is as much to be given up to, or to become the property of, 250 EOUX V. SALVADOK. the underwriters paying for total loss of the ship, as any other matter of value belonging to or incident to the subject insured. It cannot be of importance at what part of the voyage the accident happens, and the property in the vessel is changed by what is ac- counted in law to be a total loss." See also Samuel v. Royal Ex- change Assurance Company, 8 B. & C. 119 (15 E. C. L. R.) ; Benson v. Chapman, 6 M. & G. 792 (46 E. C. L. R.) ; 2 H. L. Cas. 721; Case v. Davidson, 5 M. & S. 79 ; 2 B. & B. 379 (6 E. C. L. R.); 5 J. B. Moor« 117 (16 E. C. L. R.); 8 Price 542 ; Miller v. Woodfall, 8 B. & B. 493 (92 E. C. L. R.) ; Hickie V. Rodocanachie, 4 Hurlst. & N. 455. Where the owners of the ship and the cargo are distinct persons, and the freight is insured with one set of underwriters, and the ship with another, and a separate abandonment- is made of each, the underwriters on ship will be entitled to the whole freight pend- ing at the time of the casualty, and ultimately earned by the ship (Case V. Davidson, 5 M. & Selw. 79; 2 B. & B. 379 (6 E. C. L. R.) ; 8 Price 542 ; Stewart v. Greenock Marine Insurance Com- pany, 2 H. L. Cas. 159 ; see also Luke v. Lyde, 2 Burr. 882 ; Thompson V. Rowcroft, 4 East 44), and the freight which becomes thus vested in the underwriter on ship cannot bo recovered by the shipowner from the underwriter on freight. Thus,' in The Scottish Marine Insurance Company of Glascow v. Turner, 1 Macq. H. L. Cas. *334, the owners of the ship "Laurel," as appears in -I the case first noticed of Stewart v. The Greenock Marine Insurance Company, having been compelled to surrender the freight received by them from the consignee of the cargo, instituted an action against the insurers on freight, alleging, that as the under- writers on ship had been found entitled to the freight, it must be considered as lost to the assured, and consequently recoverable under the policy. It was held however by the House of Lords, re- versing the decision of the Court of Session in Scotland, that the action was not maintainable. " Having regard," said Lord Truro, " to the true construction of the policy, — in other words, the obli- gation of underwriters on freight, — the facts of this case appear to be conclusive against the claim of the respondents. The decision below however rests upon a different construction of the policy, and it therefore becomes necessary to examine that construction. The expression ' the loss of freight ' has two meanings, and the dis- KOUX V SALVA-DOK. 251 tinction between them is material. First, freight may be lost in the sense that, by reason of the perils insured against, the ship has been prevented from earning freight ; or, secondly, freight may be lost in the sense that, after it has been earned, the owner has been deprived of it by some circumstances unconnected with the contract between the assured and the underwriters on freight. For a loss of freight in the first sense, the underwriter on freight is liable ; but for any loss of freight in the second sense, I conceive the underwriter is not answerable. I can extract no obligation what- ever from the policy which should subject hirn to such a liability. He has performed his warranty, the freight has been earned, and he has no concern with the subsequent results. In the present case the owners received the freight, on their own account, for their own benefit ; and as the facts stood, when they so received it they were entitled to retain it against all the worlc^. The contract between the owners and the underwriters on freight had been entirely performed, and the relation between them determined. The owners were then entitled to claim full compensation from the insurers of the ship for any pecuniary loss they might have incurred by reason of the damage their ship had sustained ; but rather than thus claim as for a partial loss, they preferred to claim as for a total loss. The consequence of their electing to take that course was to make the freight which he' had received for his own benefit an item in account between them and the insurers of the ship. Therefore the present claim against the insurers of the freight is founded, not on the policy for freight, but upon something else with which the insurers of the freight have nothing to do." Where, however, the same person is the owner of the ship and cargo, no freight will, upon abandonment, pass to the underwriters *on ship. See Miller v. Woodfall, 8 E. & B. 493 (92 E. C. p^^^gg L. R.). There a shipowner loaded his ship, which was bound for Liverpool, with goods on his own account, and he insured the ship and the freight of the goods by distinct insurances. The ship was stranded at Southport, on the English coast, about twenty miles from Liverpool. The shipowner abandoned the ship to the insurers on ship. After -the abandonment, the shipowner, at his own ex- pense, had a part of his goods taken out and conveyed by lighters to Liverpool, and he, at his own expense, procured assistance by which the ship, with the remainder of his goods on board, was 252 ROUX V. SALVADOR. brought to Liverpool. Afterwards the assurers accepted the aban- donment. On the assured claiming for the loss of the'ship from the assurer, the assurer claimed credit for the freight of the goods of the shipowner. It was held by the Court of King's Bench that nothing in the nature of freight for the carriage of the shipowner's goods to Southport passed to the abandonees, but that they were entitled to an allowance for the carriage of the part of the goods from Southport to Liverpool in the ship after the abandonment, to be estimated at the current rate of freight as if brought from South- port to Liverpool in* another ship. " If," said Lord Campbell, C. J., " the goods on board the ship at. the time when the casualty to which the abandonment i^efers occurred had belonged to third per- sons, for whom they were to be carried on freight from St. John to Liverpool, there can be no doubt that, by our law, the right to the whole of that freight would have passed to the abandonees of the ship. . . . But in the case which we have now to decide, at -the time of the casualty there was no freight pending. The goods in the ship were the property of the owner of the ship ; he was carry- ing them on his own account, and he could have no contract with himself. As between him and the underwriter on ship, it was quite immaterial that, under the designation of freight, he had insured with other underwriters the increased value of his goods, by reason of their being carried from St. John to Liverpool. Considering as a test what would have passed to the purchaser on a sale of the ship at the time of the casualty, it seems clear that he could have had no claim against the vendor in respect of the goods having been carried in the ship from St. John to Southport before the sale. No more can the abandonee. At the moment of tHe casualty, the goods had become more valuable to the owner from being carried the greatest part of the voyage ; and he might have sold them afloat at an increased price. This is rather analogous to the case of freight earned and received by the owner of the ship before the abandon- ment, to which the abandonee of the ship would have no claim. We are therefore of opinion that it is only for any benefit which the owner of the goods may have derived from the use of the ship *1901 *^'^^s^1^®^t to t'i6 casualty, that the abandonees can claim compensation in the nature of freight." And see Dakin v. Oxley, 15 0. B. N. S. 646 (109 E. C. L. R.). When, however, the freight is earned, not by the abandoned ship, EOUX V. SALVADOR. 253 or a ship engaged by the persons abandoning her, or their agents, but by a vessel into vrhich the cargo has been transshipped by the captain acting as agent for the owners, the underwriters on ship will not be entitled to the freight. Thug, in Hickie v. Rodocanachi, 4 Hurlst. & N. 455, the plaintiffs were the owners of a ship called the "Sarah Sands," which they chartered for a voyage to carry troops to Calcutta. By the charter-party a portion of the freight was payable only on the completion of the voyage, so that the plaintiff's right to it depended on that event. The vessel sailed, and when 700 miles beyond the Mauritius took fire, and was compelled to de- sist from the prosecution of the voyage, and made for the Mauri- tius, which she reached, having sustained great damage. She was insured by a marine policy in the common form. On notice of the loss the insured abandoned, and the abandonment was accepted. The captain freighted another ship ; the troops were forwarded to Calcutta ; the freight earned and received by the insured. An ac- tion having been brought upon the policy, it was held by the Court of Exchequer that in forwarding the troops the captain acte4 as agent for the owner, and not for the underwriters ; and that the underwriters to whom the ship had been abandoned were not enti- tled to any benefit from the freight so received. In delivering the judgment of the Court, Bramwell, B., said, "When the injured ship finishes the voyage, it is the ship of the underwriters ; and those who make use of it may not altogether unreasonably be held to do so for the benefit of its then owners. But where another ship finishes the voyage, it is not the underwriters' ship, and there is no reason why those who hire it should be supposed to be acting for the benefit of the under\*riters, rather than for their own employers, the former owners. Here the captain, when he hired the new vessel, was not the underwriters' captain nor their agent, nor under any duty to them ; he was to his former owners. Take the case put in the argument. Suppose the plaintiffs and the defendant had been at the Mauritius, and each had claimed to forward the troops for his own benefit, who would have been entitled to do so ? Undoubtedly the plaintiffs. Take the other case of there being a breach of duty to the charterer in- not forwarding the troops, who would have been liable? The plaintiffs, not the defendants. Again, suppose the hire and cost of the new ship exceeded the freight earned, who would have been liable for it ? The plaintiffs, not the defendants. 254 KOUX V. SALVADOR. Or suppose the case of the owner of the goods arriving at the Mau- ritius, and insisting *on the goods being there delivered to *^^^^ him, in which case he must pay the whole freight, surely the owner would be entitled to it. . On these grounds we are satisfied that the captain in such a case as the present acts for the owners of the ship, and not for the underwriters ; and that they are not enti- tled to any benefit from the freight acquired ; that the underwriters may indeed be entitled to advantages attached to the ship, but not to those arising from contracts, the fulfilment of which can be,, and is detached from the ship." As to the deductions made from freight, ultimately earned before its proceeds are paid over as salvage to the different sets of under- writers, see Sharp v. Gladstone, -7 East 24 ; Barclay v. Stirling, 5 M. & Selw. 6. It may be here mentioned that although ordinarily an action lies against the underwriter to recover for a total loss, the insurer and the underwriter may contract that no right of action (to be enforced in a Court of law) shall accrue until an arbitrator has decided, not merely as to the amount of damages to be recovered, but upon any dispute that may arise upon the policy : Scott v. Avery, 5 H. of L. 811 ; Tredwen v. Holman, 1 Hurlst. & C. 72. The principal case of Roux v. Salvador was much examined and discussed in American Ins. Co. v. Francia, 9' Barr 390. In that case a ship was in- sured from Spain to the United States. On her voyage, having encoun- tered storms by which her mainmast was sprung and other injuries suf- fered, the captain bore away for St. Thomas. On his arrival there, surveys were made, and the estimated cost of repairs considerably exceeded what would be the value of the vessel when repaired. The captain sold the ves- sel, and this was an action for an actual total loss, there having been no abandonment in time. Gibson, C. J. "It is not pretended that the notice was in time; but there is plausibility in the argument that it was not necessary. It is said that if the sale by the master was no more than a wholesome exercise of his discretion under the circumstances, there was a total loss of the title ; and that though the brig afterwards existed as a vessel gone from the control of the assured, there was nothing to abandon. On the other hand, it is asserted that the right to contest the validity of ROUX V. SALVADOR. 255 the sale with the master or his vendee ought to have been ceded as a thing of appreciable value, like the spes recwperandi between capture and con- demnation. But, replies the assured, even that is extinguished by sentence of condemnation which passes the title ; and as the validity of the sale must be maintained by the assured, the fact can as well be tried in an action on the policy, as it can be tried in aa action against the master and his vendee. Whatever force there may be in these arguments, it seems to be settled by a decisive weight of authority, that in every case of insur- ance on the ship or cargo, though perhaps not on freight, when the master has sold the thing insured, there must bo an abandonment to avoid the conclusion that the assured has elected to go for a partial loss. It is said that if any part of the property survive the peril, as in case of shipwreck, without a total destruction of it; or that, if any claims springing from the. ownership of it remain to the assured, they must not be retained but ceded as a foundation to recover the whole. Most of the English authorities have been collected by Chief Justice Tindal, in the comparatively modern case of Roux V. Salvador, and from their express bearing in opposition to Cam- bridge V. Anderton, 2 B. & C. 691, he concluded that'an abandonment was necessary in that case, which was in principle identical with the case befjSre us. The hides when sold were rapidly becoming a loathsome mass of putrefaction, and if ever the master's right to sell was incontestable, it was in that case. If contestable it could have been tried in the action on the policy there as well as it could be tried in the action on the policy here ; but Chief Justice Tindal introdticed a new element into the discus- sion, which seems to be of commanding influence. " For as the assured," said he, " in no case is bound to consider the loss a total loss, but may always take to what is saved, and recover for an average loss, if it is to be held that abandonment is unnecessary when there has been a sale, the underwriter can have no certainty as to his rights or liabilities before the assured determines his election by bringing the action for a total loss. This uncertainty of itself and if no other consequence follow, is highly prejudicial to the underwriter. It may be further prejudicial in its direct consequences; agents may fail in whose hands the proceeds are left, and still further the right of the underwriters to dispute the validity of the sale with the purchaser of the ship or cargo, upon the ground of fraud, might by the. intervention of time be impaired or entirely defeated." I am at a loss to see how this argument can be refuted. In reviewing the judgment in the Exchequer Chamber, Lord Abinger, who delivered the opinion of the Court, did not attempt to refute it, and we are at liberty to give more weight, on principle, to the judgment of the Common Pleas, accordant as it is with the judgments of the state courts of our Union, and the general course of the British courts, than to the judgment of the Superior Court 256 ROUX V. SALVADOR. in England. He assumed what cannot be maintained, that the under- writers cannot be prejudiced by a protracted ignorance of the responsibility they have to meet, or of the course they have to pursue. The conclusion drawn by Chief Justice Tindal is sustained by Martin v. Crokatt, 14 Sast 465, and Bell v. Nixon, 1 Holt 423 — cases posterior or not cited by him. Idle V. The Royal Exchange Insurance has been thought to bear the other way, but the insurance was on freight, which was entirely lost by the breaking up of the voyage, and there was consequently nothing to aban- don. The American oases generally fall in within the current. The authorities were examined by Chief Justice Shaw in Smith v. The Manu- facturers' Ins. Co., 7 Mete. 449, who kid down the rule that in every case like the present, an abandonment is necessary. Such, too, is the rule of Pierce v. The Ocean Insurance Company, 18 Pick. 91 ; Cohen v. The In- surance Company, Dudley S. C. 147, and The American Insurance Com- pany V. Ogden, 15 Wend. 532; while we have to the contrary only Gordon v. The Insurance Company, 2 Pick. 249, said to have been recog- nised by Mr. Justice Thompson, 5 Peters 604. It was said in The Ameri- can Insurance v. Ogden, that " the right to abandon does not in all cases depend upon the amount of damages, but exists in all cases where the ship is gone from the control of the assured ; where the voyage is broken up and when a sale of the ship has become necessary for the benefit of all concerned." The master had sold the vessel at auction because she was without indis- pensable repairs, which he had not means to procure ; and it was held that the assured might abandon and recover for a total loss ; which certainly implies that he could else have recovered only for a partial loss. In Wat- son V. The North American Insurance, 1 Binn. 47, our own court held that the assured might recover without abandonment for an average loss after sentence of condemnation, leaving the jury to estimate and deduct the value of the chance of reversal and restoration of the property; but in Brown v. The Phoenix, 4 Binn. 445, the Chief Justice and Mr. Justice Breckenridge seem to have been disposed to carry the necessity of aban- donment as far as it is at' present proposed to do." The force of this rea- soning, as compared with that of Lord Abinger in Roux v. Salvador, will have to be considered in the other State or United States Courts in which it may hereafter arise. The dictum of Mr. Justice Thompson of the Su- preme Court of the United States above referred to, is to be found in his opinion in The Patapsco Insurance Co. v. Southgate, 5 Peters 622, where there had been a sale, and an abandonment, which the Courts held to be valid. " This renders it unnecessary for the Court to express any opinion upon the question made at the bar, whether any abandonment was necessary in this case. It may not, however, be amiss to observe, that there is very respectable authority, and that, too, founded upon pretty sub- ROUX V. SALVADOR. 257 Btantial reasons for saying that no abandonment is necessary where the property has been legally transferred by a necessary and justifiable sale 2 Pick. 261, 265." In Mutual Safety Insurance Co. v. Cohen, 3 Gill. 459, it was decided that if there be an urgent necessity for the sale of an in- sured vessel, damaged by the perils of the sea, the master has a right to sell the vessel, and such sale constitutes a total loss, although there has been no valid abandonment. When an injury to an insured vessel can be repaired at an expense less than her value, when repaired, the assured can- not recover for a total loss without abandoning to the underwriters ; but when an insured vessel is broken up and sold, in consequence of an injury received, without an abandonment to the underwriters, and a suit is brought on the policy, the proceeds of the materials sold, are to be deducted from the sum which the assured would be entitled to recover if there had been an actual total loss of the vessel : Smith v. Man. Ins. Co., 7 Mete. 448. If a sale by the master is necessary and warranted by the rules of law, it would, even without an abandonment, constitute a total loss : Fuller v, Kennebec Mutual Ins. Co., 31 Maine 325 ; Greely v. Tremont Ins. Co., 8 Cush. 415. When the sale of a disabled vessel is made by the master, no abandonment is necessary, provided the sale be justifiable, to enable the assured to recover for a total loss : Prince v. Ocean Ins. Co., 40 Maine 481 ; Buckman v. Merchants' Ins. Co., 5 Duer 342. The necessary sale of a vessel in the course of a voyage to defray salvage expenses, creates of itself, a total loss of the vessel for the voyage : Williams v. Sufiblk Ins. Co., 3 Sumn. 510. See Paddock v. Commercial Ins. Co., 2 Allen 93; Stephenson v. Piscataqua Ins. Co., 54 Maine 55 ; Graves v. The Wash- ington Ins. Co., 12 Allen 391; Duning v. Merchants' Ins. Co., 57 Maine 108. When there is an actual destruction of the subject-matter insured, an abandonment is unnecessary, to entitle the assured to recover for a total loss: Gordon v. Bowne, 2 Johns. 150; Fosdick «>. Norwich Ins. Co., 3 Day 108. On a voyage between New York and Cura9oa, the vessel lost her mast, and at Curagoa had to be abandoned for want of materials to re- pair her. It was held that she received her death wound on the voyage, and the insured were entitled to recover for a total loss : Stagg v. United Ins. Co., 3 Johns. Cas. 34. Abandonment is not always necessary in- cases of salvage or total loss: Portsmouth Ins. Co. v. Brazer, 16 Ohio 81. A vessel insured was taken by a French cruiser retaken by a British frigate, libelled in an English Court of Vice- Admiralty of a British island, and decreed to be sold for the payment of Salvage. The master purchased her, returned with her and delivered her to the former owner, the assured, who without any abandonment, credited the underwriters with the proceeds of of the sale. It was held to be a total loss ; that the underwriters were 17 258 ROUX V. SALVADOR. entitled to the net proceeds of the sale received by the master and no more, that the assured was not bound to abandon, but might lawfully retain the vessel: Storer v. Gray, 2 Mass. ^65. There is a total loss, where by reason of a peril insured against, the cargo is permanently prevented from arriv- ing at the port of destination : Kobinson v. The Commonwealth Ins. Co., 3 Sumn. 220. The provision in a policy that the risk is against total loss only, means an absolute, nqt a mere technical total loss : Buchapan v. Ocean Ins. Co., 6 Cowen 318. Where an injury is sustained by a vessel insured under a valued policy, the loss is not total, unless the expense of repairs will exceed fifty per cent, of the valuation in the policy, after the deduction of one-third new for old : Deblois v. Ocean Ins. Co., 1,6 Pick. 303. The insured may abandon a vessel, which has been damaged in the course of her voyage fifty per cent., though she has performed her voyage, and lain twenty-four hours in port: Peters v. Phcenix Ins. Co., 3 8. & R. 25; Wood v. Lincoln Ins. Co., 6. Mass. 479; Hall v. Ocean Ins. Co., 21 Pick. 472; Gordon «. Massa- chusetts Ins. Co., 2 Id. 249; Deblois v. Ocean Ins. Co., 16 Id. 303; Abbott V. Broome, 1 Caines 292 ; American Ins. Co. v. Center, 4 Wend. 45 ; King V. Hartford Ins. Co., l' Conn. 422 ; Kalston v. Union Ins. Co., 4 Binn. 386; Clark v. Mass. Ins. Co., 2 Pick. 104; Moses «. Columbian Ins. Co., 6 Johns. 219 ; Dickey v. New York Ins. Co., 4 Cowen 222 ; Center v. American Ins. Co., 7 Id. 564; Patapsco Ins. Co. v. Southgate, 5 Peters 604 ; Humphreys v. Union Ins. Co., 3 Magon 429 ; Whitney v. New York Firemen's Ins. Co., 18 Johns. 208; Callender w. Ins Co. of North America, 5 Binn. 525 ; Bradlie v. Maryland Ins. Co., 12 Peters 378 ; Pezant v. National Ins. Co., 15 Wend. 453; Orrak v. Commonwealth Ins. Co., 21 Pick. 456; Hall v. Ocean Ins. Co., Id. 472; Robinson v. Commonwealth Ins. Co., 3 Sumn. 220 ; Magoun v. New England Ins. Co., 1 Story 157 ; Cohen V. Ins. Co., Dudley S. C. 147 ; Citizens Ins. Co. v. Glasgow, 9 Mis- souri 411 ; Hedley v. Nashville Ins. Co., 6 Richardson 130 ; Allen v. Commercial Ins. Co., 1 Gray 154; Forbes v. Manufacturing los. Co., Id. 371 ; Buckman v. Merchants' Ins. Co., 5 Duer 342 ; Fiedler v. New York Ins. Co., 6 Id. 282; Ins. Co. v. Goodman, 32 Alab. 108; Lincoln v. Hope Ins. Co., 8 Gray 22. A partial loss of an entire cargo by sea damage, if amounting to more than fifty per cent, may under circumstances be con- verted into a technical total loss; but not if a distinct part of the cargo be destroyed, and the voyage be not thereby broken up or rendered unworthy of being prosecuted : Seton v. Delaware Ins. Co., 2 Wash. C. C. 175. Where a cargo insured from Havana to Castine was wrecked on the way, and taken from the vessel without damage, and it might have been sent to Castine for less than fifty per cent, of its value, but the master sold it on the beach, it was held that the insurers were not liable for a total loss: ROUX V. SALVADOR. 259 Bryant v. Commonwealth Ins. Co., 13 Pick. 543. In determining whether there has been a technical total loss of a vessel, her value in the port of necessity is the standard : American Ins. Co. v. Prancia, 9 Barr 390 ; Suarez v. Sun Mutual Ins. Co., 2 Sandf. S. C. 482. Where the goods saved do not amount to half in value of the goods insured, the assured may abandon : Gardiner v. Smith, 1 Johns. Cas. 141. Where a cargo insured for a round voyage was permanently separated from the ship by the total wreck of the latter on the outward voyage, and it being perishable in its nature it became necessary to sell it, although it was not injured to half its value, it was held to be a case of technical total loss, on account of the breaking up of the voyage: Columbian Ins. Co. t;. Catlett, 12 Wheat. 383. Where the voyage shall be deemed to be broken up and the assured en- titled to abandon for a total loss : see Symonds v. Ins. Co., 4 Dall. 417 ; Buckman v. Merchants' Ins. Co., 5 Duer 342 ; Delaware Ins. Co. v. Winter, 2 Wright 176. The insurer may covenant to repair, though the loss exceed one-half the value of the vessel ; and if he does so repair, the as- sured cannot abandon: Ritchie v. United States Ins. Co., 5 S. & R. 501; Hart V. Delaware Ins. Co., 2 Wash. C. C. 346. The assured may abandon for a tojal loss on information of a capture, though the vessel is afterwards released and arrives at her port of destina- tion : Slocum V. Ins. Co., 1 Johns. Cas. 151 ; Brown v. Phcenix Ins. Co., 4 Binn. 445 ; Gardere v. Columbian Ins. Co., 7 Johns. 514 ; Rhineland v. Ins. Co., 4 Cranch 29; Murray v. United Ins. Co., 2 Johns. Cas. 263; Camel V. Marine Ins. Co., 7 Johns. 412. The assured on learning the capture of his vessel may abandon, and in case of a subsequent condemnation may recover for a total loss : Bohlen «. Delaware Ins. Co., 4 Binn. 430; Lovering v. Mercantile Ins. Co., 12 Pick. 348. But in case of capture or detention the abandonment must be made before the cause of the loss is removed : Richardson v. Maine Ins. Co., 6 Mass. 102; Amory v. Jones, Id. 318; Tucker v. United Ins. Co., 12 Id. 288; Lovering v. Mercantile Ins. Co., 12 Pick.. 348; Hallett v. Peyton, 1 Caines' Cas. 28 ; Church v. Bedient, Id. 21 ; Muir v. United Ins. Co., Id. 49 ; Queen v. Union Ins. Co., 2 Wash. C. C. 331 ; Adams v. Delaware Ins. Co., 3 Binn. 287 ; De Peau v. Russell, 1 Brevard 441. The redelivery of a captured vessel on bail does not defeat the right to abandon : Lovering v. Mercantile Ins. Co., 12 Pick. 348. Restraint and detention by an em- bargo has been decided to be a technical total loss, or an event by which the voyage insured is lost, although the subject-matter of the contract may remain in safety and under the control of the assured : Delano v. Bedford Ins. Co., 10 Mass. 347. Detention by an embargo will justify an abandonment : M'Bride V. Marine Ins. Co., 5 Johns. 299 ; Walden v. Phcenix Ins. Ca, Id. 310 ; Ogden V. New York Firemen's Ins. Co., 10 Johns. 177 ; s. c. 12 Id. 25. 260 ROUX V. SALVADOR. t If the port of destination be blockaded on arrival, the assured may aban- don : Schmidt v. United Tns. Co., 1 Johns. 249. The loss of a voyage from mere fear of a capture will not justify an abandonment : Richardson v. Maine Ins. Co., 6 Mass. 102 ; Amory v. Jones. Id. 318 ; Cook v. Essex Ins. Co., Id. 122 ; Lee v. Gray, 7 Id. 349 ; Tucker v. United Ins. Co., 12 Id. 268 ; Brewer v. Union Ins. Co., Id. 170 ; Corp. v. United States Ins. Co., 8 Johns. 277 ; Shapley w. Tappan, 9 Mass. 20 ; Craig v. United Ins. Co., 6 Johns. 226 ; Smith v. Universal Tns. Co., 6 Wheat. 176. Where a regular abandonment is made, the property vests in the insurer by relation to the time of capture ; but the captain continues the agent of the insured until abandonment: Diderer v. Delaware Ins. Co., 2 Wash. C. C. 61 ; Clarkson v. Phoenix Ins. Co., 9 Johns. 1 ; Levering v. Mercantile Ins. Co., 12 Pick. 348. An underwriter is not answerable for a partial loss on memorandum articles, except for general average, unless there is a total loss of the whole particular species, whether the particular article be shipped in bulk or in separate boxes: Wadsworth v. Pacific Ins. Co., 4 Wend. 33. There cannot be a total loss of part of a cargo consisting of memorandum arti- cles of only one species, such as hides ; nor are the underwriters liable for salvage upon such articles, under the clause which authorizes the insured to labor, &c., for the preservation of the cargo, unless perhaps in a case where the salvage may have prevented an actual loss of the cargo : Beays V. Chesapeake Ins. Co., 7 Cranch 415 ; Newlin v. North American Ins. Co., 4 Amer. L. J. 272. The insurer on articles in the memorandum is liable only for a total loss, which never can happen where the cargo or a part of it has been sent on by the insured and reaches its original port of destina- tion : Morean v. United States Ins. Co., 1 Wheat. 219; s. c. 3 Wash. C. C. 256 ; Robinson v Commonwealth Ins. Co., 3 Sumn. 220 ; Williams v. Cole, 4 Shepl. 207 ; Bryan v. Ins. Co., 25 Wend. 617-; Ins. Co. v. Bland, 9 Dana 143; Hugg v. Augustin Co., 7 Howard S. C. 595; Williams v. Kennebec Ins. Co., 31 Maine 455 ; De Peyster v. Sun Ins. Co., 19 N. Y. 272 ; Tudor v. New England Ins. Co., 12 Cush. 554. Under a valued policy on a cargo warranted free from average, it was held that the insured could not recover, though at the end of the voyage, owing to leaks and other damage, the loss on the goods sold was more than fifty per cent, on all the goods shipped and on the whole cargo there was no profit: Wain v. Thompson, 9 S. &. R. 115. As to memorandum articles: Robinson v. Commonwealth Ins. Co., 3 Sumn. 220 ; Williams v. Cole, 4 Shepl. 207; Poole v. Ins. Co., 14 Conn. 47; Maryland Ins. Co. v. Bosley, 9 Gill & Johns. 336 ; De Pau v. Jones, 1 Brevard 437 ; Wallenstein v. Columbian Ins. Co., 3 Robertson 528. In order to entitle the assured to .recover for a technical total, where the thing still remains in specie, the owner must abandon : Norton v. ROUX V. SALVADOR. 261 Lexington Ins. Co., 16 111. 235. The right of the assured to abandon for a total loss depends upon the state of the fact at the time of the offer to abandon, and not upon the state of information received : Marshall v. Delaware Ins. Co., i Cranch 202 ; s. c. 2 Wash. C. C. 54 ; Dorr v. Union Ins. Co., 8 Mass. 502 ; Robinson v. Jones, Id. 536 ; Rhinelander v. Ins. Co., 4 Cranch 29 ; Alexander v. Baltimore Ins. Co., Id. 370 ; Radcliff v. Coster, 1 Hoffm. Ch. 98 ; Chidd v. Sun Mutual Ins. Co., 2 Sandf S. C. 76; Fuller V. Kennebec Mutual Ins. Co., 31 Maine, 325 ; McCouochie v. Sun Ins. Co., 3 BoBw. 99; Mordecai v. Firemen Ins. Co., 12 Richardson "(Law) 512. Where a vessel was stranded, and afterwards before aban- donment was gotten off without material injury, but was in the interme- diate time sold by the master at public auction and purchased by him, the assured was held not to be entitled to recover for a total loss : Church V. Marine Ins. Co., 1 Mason 341. Whether stranding or submersion will justify an abandonment depends on the particular circumstances of each case : Wood v. Lincoln Ins. Co., 6 Mass. 479 ; Sewall v. United States Ins. Co., 11 Pick. 90; King v. Hartford Ins. Co., 1 Conn. 422. There cannot be a stranding unless the vessel remain stationary some time. If a vessel strike and bilge, but pass on without stopping, it is not a strand- ing : Lake v. Columbian Ins. Co., 13 Ohio 48. No particular form of abandonment is necessary, nor is it indispensable that it should be in writing : Patapsco Ins. Co. v. Southgate, 5 Peters 604 ; Chesapeake Ins. Co. v. Stark, 6 Cranch 268 ; Pierce v. Ocean Ins. Co., 18 Pick. 83 ; Ins. Co. v. Goodman, 32 Ala. 108 ; Silloway v. Neptune Ins. Co., 12 Gray 73. The master of a vessel has' not authority by virtue of his office to abandon her to underwriters : Younger v. Gloucester Ins. Co., Sprague 236. An abandonment should be explicit, unconditional and on sufficient grounds, and the accident occasioning it should be de- scribed with certainty : Suydam v. Marine Ins. Co., 1 Johns. 181 ; Pa- tapsco Ins. Co. V. Southgate, 5 Peters 604; King v. Delaware Ins. Co., 2 Wash. C. C. 300; Fuller v. McCall, 1 Yeates 464; s. c, 2 Dall. 219; Suydam v. Marine Ins. Co., 2 Johns. 138 ; Dickey v. New York Ins. Co., 4 Cowen 222; s. C, 3 Wend. 658; Pierce v. Ocean Ins. Co., 18 Pick. 83 ; Reynolds v. Ocean Ins. Co., 22 Id. 191 ; Thomas v. Rockland Ins. Co., 45 Maine 1 16 ; fleebnor v. Eagle Ins. Co., 10 Gray 131 ; McConachie V. Sun Ins. Co., 26 N. Y. 477. An abandonment must be made within a reasonable time after notice of a total loss : Livermore v. Newburyport Ins: Co., 1 Mass. 264 ; Smith v. Newburyport Ins. Co., 4 Id. 668 ; Hurtin v. Phoenix Ins. Co., 1 Wash. C. C. 400 ; Krumbhaar v. Marine Ins. Co., 1 S. & R. 281; Fuller o. McCall, 1 Yeates 464; s. c, 2 Dall. 219; Duncan W.Koch, Wallace, Sr. 33; Reynolds v. Ocean Ins. Co., 22 Pick. 191; Osrok V. Commonwealth Ins. Co., 21 Pick 456; Teasdale v. Charleston 262 ROUX V. SALVADOR. Ins. Co., 2 Brevard 190. The question whether an abandonment is made in a reasonable time is for the jury under the direction of the Court, being a mixed question of law and fact : Smith v. Newburyport Ins. Co 4 Mass. 668; Peele v Suffolk Ins. Co., 7 Pick. 254; Bell v. Beveridge, 4 Dall. 272 ; Livingston v. Maryland Ins Co., 7 Cranch 506 ; Chesapeake Ins Co. V Stark, 6 Id. 268 ; Maryland Ins. Co. v. Ruden, 6 Id. 338 Reynolds v. Ocean Ins. Co., 22 Pick. 191. What amounts to an accept- ance of an abandonment : see Peele v. Merchants' Ins Co , 3 Mason 27 Wood V Lincoln Ins. Co., 6 Mass. 479 ; Bell v. Smith, 2 Johns. 98 Reynolds v. Ocean Ins. Co., 22 Pick. 191; s. c, 1 Mete. 160; Common- wealth Ins. Co. V. Chase, 20 Pick. 142 ; Peele v. Suffolk Ins. Co., 7 Id, 254; Badger v. Ocean Ins. Co., 23 Id. 347; Cincinnati Ins. Co. v. Bake well, 4 B. Monr.' 541 ; Grloucester Ins. Co. v. Younger, 2 Curtis C. C 322 ; Norton v. Lexington Ins. Co., 16 Illinois 235. Whether an aban- donment has been waived is a question for the jury : Curcier v. Philadel phia Ins. Co., 5 S. & R. 113; King v. Middleton Ins. Co., 1 Conn. 184 Ogden V. New York Piremens' Ins. Co., 10 Johns. 177 ; King v. Hartford Ins. Co., 1 Conn. 333 ; Columbian Ins. Co. v. Ashby, 4 Peters 139. An abandonment operates as a transfer to the underwriter of the pro- perty insured only to the extent of the indemnity contemplated by the policy : Cincinnati Ins. Co. v. Duffield, 6 Ohio N. S. 200, In case of abandonment, the underwriter is entitled to all the proceeds of the thing abandoned and to all the profits arising from the investment thereof, and liable for all the charges : Hurtin v. Phoenix Ins. Co., 1 Wash. C. C. 400; McBride v. Marine Ins. Co , 7 Johns. 431 ; Hammond v. Essex Ins. Co., 4 Mason 196; Pierce v. Ocean Ins. Co., 18 Pick 83; Badger v. C^ean Ins. Co., 23 Id. 347; Union Ins. Co. v. Burrell, Anthon 128; Teas- dale V. Charleston Ins. Co., 2 Brevard 190; Atlantic Ins. Co. v. Storrow, 1 Edw. Ch. 621 ; Rogers v. Hosaek, 18 Wend. 319 ; New York Ins. Co. V. Roulet, 24 Id. 505; Cincinnati Ins. Co. v. Bakewell, 4 B. Monr. 541; Norton v. Lexington Ins. Co., 16 Illinois 235; Mutual Ins. Co. v. Cargo of George, Alcott Adm. 89. After a legal abandonment, the insured is considered as the agent of the insurer and may employ the ship to the best advantage: Curcier v. Philadelphia Ins. Co., 5 S. & R. 113. The master is the agent of all concerned in the voyage, and whenever an abandonment has been accepted he becomes by relation the agent of the underwriters from the time of the loss, and a sale by him is then on account of the underwriters : The Sarah Ann, 2 Sumn. 206 ; Gardiner v. Smith, 1 Johns Cas. 141; Chesapeake Ins. Co. v. Stark, 6 Cranch 268; Smith V. Touro, 14 Mass. 112 ; Pierce v. Ocean Ins. Co., 18 Pick. 83; Mowry v. Charleston Ins. Co., 6 Richardson 146. On a policy on freight against a total loss onlj, a party is not entitled to ROUX V. SALVADOR. 263 abandon for a technical total loss: Willard v. Millers' Ins. Co., 24 Mis- souri 561. The underwriters are liable for freight as a total loss where there is a total destruction in specie of the cargo : Redyard v. Phillips, 4 Blatohf. C. C. 443. In the case of a constructive total loss, it is the duty of the master to earn freight by forwarding the cargo by another vessel ; and to entitle the assured to recover for the loss of freight he must show that no other vessel could be had : Kinsman v. New York Ins. Co , 5 Bosw. 369. The doctrine of abandonment for a constructive loss does not apply to a contract of affreightment : Henderson v. Maid of Orleans, 12 Louis. Ann. 352 ; Lord v. Neptune Ins. Co., 10 Gray 109. The insured is never compelled to abandon. He has an election to do 80, but no right to claim for a technical total loss until he makes such election : Bosley v. Chesapeake Ins. Co., 3 Gill & Johns. 450 ; Ma'rcan v. United States Ins. Co., 3 Wash. C. C. 256 ; Earl v. Shaw, 1 Johns. Cas. 313. 264 LEWIS «.,RUCKEE. ^192] *LEWIS V. RUCKER. Saturday, 2d May, 1761. [Repoktjed 2 BuEB. 1167.] Maritime Insurance — ^Adjustment of Average.] — -The nature of the contract of insurance is, that the goods insured shall come safe to the port of delivery ; or if they do not, that the insurer shall indemnify the assured to the amount of the prime cost or value in the policy. If the goods urrive lessened in value through damage received at sea, the nature of the corir tract of insurance being a contract of indemnity requires that the insured should he put in the same condition {relation being had to the prime cost or value in the policy), which he would have been in if the goods had arrived free from damage, — that is, by paying such proportion or aliquot part of the prime cost or value in the policy, as corresponds with the proportion or aliquot part of the diminution in value occasioned by the A rule having been obtained by the plaintiffs (the in- sured) for the defendant (the insurer) to show cause why a verdict given for the defendant should not be set aside and a new trial had, the Court, after hearing the matter fully debated by counsel on both sides, took time to advise. Lord Mansfield, C. J., now delivering their resolution, in doing which he stated everything requisite to be known in so full and ample a manner as to render it quite unneces- sary, and even impertinent, for the reporter to pretend to LEWIS V. RUCKER. 265 prefix any preface or introduction to it. What he said was to the following effect : This was an action brought upon a policy, by the plaintiffs, for Mr. James Bourdieu, upon the goods aboard a ship called the " Vrow Martha," at and from St. Thomas Island to Hamburg, from the *loading at r*-i no St. Thomas Island till the ship should arrive and land the goods at Hamburg. The goods, which consisted of sugars, coffees, and indigo, were valued at 30^. per hogshead the clayed sugars, and 201. per hogshead the Muscovado sugars; and the coffee and indigo were likewise respectively valued. The sugars were warranted free from average under 51. per cent., and all other goods free from average under 3/. per cent., unless the cargo of the ship be stranded. In the course of the voyage the sea-water got in, and when the ship arrived at Hamburg, it appeared that every hogshead -of sugar was damaged. The damage the sugars had sustained made it necessary to sell them immediately, and they were accordingly sold, and the difference between the price which they brought by reason of the damage and that which they might have been sold for at Hamburg, if they had been sound, was as 201. Os. 8d. per hogshead is to 231. 7s. 8d. per hogshead, i. e. if sound, they would have been worth 2%l. Is. 8d. per hogshead; as damaged, they were only worth 201. Os. 8d. a hogshead. The defendant paid money into Court by the following rule of estimating the damage. He paid the like proportion of the sum at which the sugars were valued in the policy, as the price of the damaged sugars bore to sound sugars at Hamburg, the port of delivery. All this was admitted at the trial, though perhaps, upon an accurate computation, there may be a mistake of about 17s. upon the money paid in, but no advantage was attempted to be taken of this slip at the trial. It was admitted that the money paid in was sufficient, if the rule by which the defendant estimated the 266 LEWIS V. EUCKER. loss was right, and the only question at the trial was, by what measure or rule the damage, upon all the circumstances of this case, ought to be estimated. To distinguish this case, under its peculiar circumstances, out of any general rule, the plaintiff's counsel called Mr. Samuel ChoUett, clerk to Mr. Bourdieu, who proved that upon the 15th of February (the time of the insurance), sugars were worth at London and Hamburg B5l. a hogshead; that the proposals of a Congress to be holden, and the ex- pectations of a peace, had on a sudden sunk the price of sugars ; that before the ship arrived at Hamburg, and before he could know that the sugars had received any damage, Mr. Bourdieu had sent orders, "that the sugars should be housed at Hamburg, and kept till the price should rise above SOI a hogshead;" that he had many hundred hogs- *i QAi ^®^ds of sugar lying at *Amsterdam, to which place -I he sent the like orders; that in fact the Congress not taking place, sugars rose 25/. per cent.; that what he sold of the sugars he had at Amsterdam brought 30/. per hogshead and upwards; that he might have sold these sugars at the same price if they had been kept according to his orders, and the only reason why they were not kept was because they were rendered perishable from the sea-water which had got in. Therefore, said they, the necessity of an immediate sale and the consequence thereof "ought to be computed with the damage. The special jury (amongst whom there were many knowing and considerable merchants) found the defendant's rule of estimation to be right, and gave their verdict for him. They understood the question very well, and knew more of the subject of it than anybody else present, and formed their judgment from their own notions and ex- perience, without much assistance from anything that passed. The counsel for the plaintiff, in the outset, chiefly rested upon the particular circumstances of this case. LEWIS V. RUCKER. 267 The counsel for the defendant offered to call witnesses to prove the general usage of estimating the quantity of damage where goods are injured. I was struck with the argument, "that the immediate ne- cessity of selling in this case might be taken into considera- tion, as an exception to the general rule," and proposed that the cause might be left to the jury upon that point. Then Mr. Winn, for the defendant, argued "the necessity of selling and the consequence thereof ought not to be regarded." And what he said had so much weight, that it very much chang- ed my way of thinking. There was nothing to sum up, but the jury asked whether I would give them any directions; I said I left it to them "whether the difference between the sound and the damaged sugars at the port of delivery ought to be the rule," or "whether the necessity of an immediate sale (certainly oc- casioned by the damage) and the loss thereby should be taken into consideration." I told them, though it had struck me at first, that this case might be an exception, yet what the counsel for the defendant had said to the contrary seemed to have great weight. The counsel for the plaintiff not having replied nor gone into the general argument, upon an apprehension that my opinion was with them upon the particular circumstances of this case, were dissatisfied with the verdict, and said they would try the *other cause in the paper upon the r*igK same policy; but instead of that, they have moved for a new trial in this cause, which I am extremely glad of. No fact is disputed. The only question is, " whether (all the facts being agreed) the jury have estimated the damage by a proper measure." To make the matter more intelligible, I will first state the rule by which the defendant and jury have gone, and then I will examine whether the plaintiff has shown a better. 268 LEWIS V. KUCKER. The defendant takes the proportion of the diflference be- tween sound and damaged goods at the port of delivery, and pays that proportion upon the value of the goods speci- fied in the policy, and has no regard to the price in money which either the sound or the damaged goods bore in the port of delivery. He says the proportion of the difference is equally the rule, whether the goods come to a rising or a falling market. For instance, suppose the value in the policy 30/., — they are damaged but sell for 40?., if they had been sound, they would have been sold for 50/., — the differ- ence is a fifth. The insurer then must pay a fifth of the prime cost or value in the policy, that is 6/. E converso, if they come to a losing market, and sell for 10/., being damaged, but would have sold for 20/., if sound, the differ- ence is one-half J the insurer must pay half the prime cost, or value in the policy, that is 15/. To this rule, two objections have been made. 1st Objection. That it is going by a different measure in the case of a partial, from that which governs in the case of a total loss, for upon a total loss the prime cost or value of the policy must be paid. Answer. The distinction is founded in the nature of the thing. Insurance is a contract of indemnity against the perils of the voyage. The insurer engages, so far as the amount of the prime cost, or value in the policy, " that the thing shall come safe" He has nothing to do with the market. He 'has no concern in any profit or loss which arise to the merchant from the goods ; if they be totally lost, he must pay the prime cost, that is, the value of the thing insured at the outset. He has no concern in any sub- sequent value. So likewise, if part of the cargo, capable of a several and distinct valuation at the outset, be totally lost, as if there be 100 hogsheads of sugar and 10 happen to be lost, the LEWIS V. RUCKER. 269 insurer must pay *the prime cost of those 10 hogs- r*-|Qf. heads, without any regard to the price for which the other 90 may be sold. But where an entire individual, as one hogshead, happens to be spoiled, no measure can be taken from the prime cost to ascertain the quantity of such damage. But if you can fix whether it be a third, fourth, or fifth worse, the damage is fixed to a mathematical certainty. How is this to be found out ? not by any price at the outset port, but it must be at the port of delivery, where the voyage is completed and the damage known, whether the price there be high or low ; in either case it equally shows whether the damaged goods are a third, a fourth, or a fifth worse than if they had come sound ; consequently, whether the injury be a third, fourth, or fifth of the value of the thing. And as the in- surer pays the whole prime cost, if the thing be wholly lost ; so, if it be only a third, fourth, or fifth worse, he pays a third, fourth, or fifth of the value of the goods so damaged. 2d Ohjedion. The next objection with which this case has been much entangled, is taken from this being a valued policy. I am a little at a loss to apply the arguments drawn from thence. It is said " that a valued is a wager policy (like interest or no interest) ; if so, there can be no average loss, and the insured can only recover as for a total [loss], aban- doning what is saved, because the value specified is ficti- tious." Answer. A valued policy is not to be considered as a wager policy, or like " interest or no interest." If it was, it would be void by the Act of 19 Geo. II. c. 37. The only effect of the valuation is fixing the amount of the prime cost, just as if the parties had admitted it at the trial. But in every argument, and for every other purpose, it must be taken that the value was fixed in such a manner as that 270 LEWIS V. RUOKER. the assured meant only to have an indemnity. If it be un- dervalued, the merchant himself stands insurer of the sur- plus ; if it be much overvalued, it must be done with a bad view either to gain, contrary to the 19th of the late king (George II.) ; or with some view to a fraudulent loss.' Therefore the insured never can be allowed in a court of justice to, plead that he has greatly overvalued or that his interest was a trifle only. It is settled that upon valued policies, the merchant need only prove soine interest, to take it out of 19th Geo. II. c. 37, because the adverse party has admitted the value, and if more were required, the agreed valuation would signify nothing. But if it should come out in proof that a man had insured 2000^., and had *interest on board to the -' value of a cable only, there never has been, and I believe there never will be, a determination, that by such an evasion the Act of Parliament may be defeated. There are many conveniences from allowing valued policies, but where they are used merely as a cover to a wager, they would be considered as an evasion. The effect of the valu- ation is only fixing conclusively the prime cost. If it be an open policy, the prime cost must be proved. In a valued policy it is agreed. To argue that there can be no adjustment of an average loss upon a valued policy, is directly contrary to the very terms of the policy itself. It is expressly subject to aver- age, if the loss upon sugars exceeds 51. per cent. If it was not, the consequence would be, that every partial loss must thereby become total ; but the event, to entitle the insured to recover, would not happen unless there was a total loss. Besides the plaintiffs have taken to the goods, and sold them. In opposition to the measure the jury' have gone by, the plaintiffs contend that they ought to be paid the whole value in the policy, upon one of two grounds. First. Because the general rule of estimating should be LEWIS V. KUCKEK. 271 m the diflference between the price the damaged goods sell for, and the prime cost (or value in the policy) . Here the dam- aged [sugar] sold at 201. Os. 8d. per hogshead, and the un- derwriter should make it up 30^. Answer; It is impossible this should be the rule. It would involve the underwriter in the rise or fall of the market. It would subject him, in some cases, to pay vastly more than the loss ; in others it would deprive the insured of any satis- faction, though there was a loss. For instance, suppose the prime cost or value in the policy 30^. per hogshead ; the sugars are injured, the price of the best is 20/. a hogshead, the price of the damaged is 19/. 10s. The loss is about a fortieth, and the insurer would have to pay above a third. Suppose they come to a rising market, and the sound sugars sell for 40/. a hogshead, and the dam- aged for 35/., the loss is an eighth, yet the insured would have to pay nothing. The second ground upon which the plaintiff contends that the 30/. should be made up, is, that it appears the sugars ' would have sold for that price, if the damage from the sea- water had not made an immediate sale necessary. The moment the jury brought in their verdict, I was sat- isfied *that they did right, in totally disregarding the r^-, qn particular circumstances of this case, and I wrote a memorandum at Guildhall, in my note-book, " that the ver- dict seemed to me to be right." As I expected the other cause would be tried, I thought a good deal of the point, and endeavored to get what assist- ance I could by conversing with some gentlemen of experi- ence in adjustments. The point has now been very fully argued at the bar, and the more I have thought, the more I have heard upon the subject, the more I am convinced that the jury did right to pay no regard to these circumstances. The nature of the contract is, that all goods shall come safe to the port of delivery, or if they do not, to indemnify the 272 LEWIS V. RUCKER. plaintiff the amount of the prime cost, or value in the policy. If they arrive, but lessened in value through damages re- ceived at sea, the nature of an indemnity speaks demonstra- tively, that it must be by putting the merchant in the same condition (relation being had to the prime cost, or value in the policy) which he would have been in if the goods had arrived free from damage ; that is, by paying such propor- tion, or aliquot part of the prime cost, or value of the policy, as corresponds with the proportion or aliquot part of the diminution in value occasioned by the damage. The duty accrues upon the ship's arrival and landing her cargo at the port of delivery. The insured has then a right to demand satisfaction. The adjustment never can depend upon future events or speculation. How long are they to wait ? a week, a month, or a year ? In this case the price rose, bufif the Congress had taken place, or a peace had been made, the price "would have fallen. The defendant did not insure " that there should be no Con- gress or peace." It is true, Mr. Bourdieu acted upon politi- cal speculation, and ordered the sugars to be kept till the price should be 30^. or upwards. But no private scheme or project of trade of the insured can affect the insurer. He knew nothing of it. The defendant did not undertake that the sugars should bear a price of 30/. a hogshead. If speculative destinations of the merchant, and the suc- cess of such speculations were to be regarded, it would in- troduce the greatest injustice and inconvenience. The underwriter knows nothing of them. The orders here were given after the signing of the policy. But the decisive answer is, that the underwriter has nothing to do with the *1991 ^^^^' ^^^ ^^^^ ^^^ ^^S^^ ^f *^^ insured *to a satis- -' faction, where goods are damaged, arises immediately upon their being landed at the port of delivery. We are of opinion that the plaintiffs are not entitled to have the price for which the damaged goods were sold. JOHNSON V. SHEDDON. 273 made up 30/. per hogshead. And it seems to us as plain as any proposition in Euclid, that the rule by which the jury have gone is the right measure. The rule must be discharged. JOHNSON V. SHEDDON. Wednesday, July 1th, 1802. [Reported 2 Bast 581.] The rule hy which to calculate a partial loss on a policy on goods hy reason of sea-damage is the difference between the respective gross proceeds of the same goods when sound and when dam- aged, andnot the net proceeds. It leing settled that the under- writer is not to hear any loss from fluctuation of market or port duties, or charges after the arrival of the goods at their port of destination. This case was very fully argued in Easter Term, 41 Greo. III., by Garrow; Parke, and Lawes, against the rule for a new trial, and by the Attorney-General and Gihbs, in support of it. It is unnecessary to detail the arguments, as the sub- stance of them was so distinctly stated in the judgment of the Court, which was delayed till now, in consequence of a difference of opinion on the Bench while Lord Kenyon pre- sided in the Court. Lawrence, J. (in the absence of Grose, J.), now delivered the judgment of the Court. 18 274 JOHNSON v. SHEDDON. This is a motion for a new trial of an action brough against the defendant, an underwriter, on goods on board i ship called *"The Carolina," from Sicily to Hamburg J . to recover a partial loss sustained by the plaintiff by reason of the sea-water having damaged a cargo of brim stone and shumack; and upon a calculation by Mr. Qliphant to whom it was referred by the parties to. ascertain the loss sustained, it has been settled after the rate of 76^. 7s. 4c? per cent. And the ground on which the new trial has beer moved for is, that Mr. Oliphant has proceeded in his calcu- lation upon a mistake, inasmuch as in estimating the loss he has taken for his foundation the difference between the ne\ produce pf what the goods have produced, and what thej would have produced if sound; instead of the difference between their respective gross produces. Upon the fuUesI consideration that we have been able to give this questior (which has beien depending a great while, and which was argued before Lord Ellenborough came upon the Bench, and who, if the case were to be argued again, would give nc opinion, having been concerned in the cause when, at the Bar), my brothers Grose and Le Blanc agree with me ir thinking there should be a new trial, and that the calculatior is wrong. Some points are agreed on both sides; viz. that the loss is to be estimated by the rule laid down in Lewis v RucJcer, 2 Burr. 1170, that the underwriter is not to be sub- jected to the fluctuation of the market ; that the loss foi which the underwriter is responsible is that which arises from the deterioration of the commodity by sea-damage: and that he is not liable for any loss which may be the con- sequence of the duties or charges to be paid after the arriva of the commodity at the place of its destination. In Lewii V. Ruder, Lord Mansfield says, "Where an entire indi vidual, as one hogshead, happens to be spoiled, no measur* can be taken from the prime cost to ascertain the quantum o the damage; but if you can fix whether it be a third, a fourth JOHNSON V. SHEDDON. 275 or a fifth worse, the damage is fixed to a mathematical cer- tainty;" and this he says is to be done "by the price at the port of delivery." From hence it follows, that whatever price at the port of delivery ascertains whether a commodity be a third, fourth, or a fifth the worse, is a price to which he alludes. And this deterioration will be universally ascertained by the price given by the consumer or the purchaser, after all the charges have been paid by. the person of whom he purchases; or, in other words, by the difference of the gross produce, and not by the diflPerence of the net produce. When a commodity is offered for sale by one who has nothing further to pay than the *sum the seller is to receive, it is the quality of the r*on-i goods which, in forming a fair and rational judgment can alone influence him in determining him what he shall pay ; he has nothing to do Avith what it may have cost the seller, and the goodness of the thing is the criterion which, must regulate the price ; for being liable to no other charges, he has only to consider its intrinsic value, and therefore if a sound commodity will go as far again as a damaged com- modity, by having twice its strength, or by being in any other respect twice as useful, he will give twice the money for the sound that he will for the damaged, and so in pro- p6rtion. To say that this is not the rule will be to assert, what I conceive it will be difficult to prove, that the market price of things is not proportioned to their respective values ; and if it be, it is a means of ascertaining whether a com- modity be a third, or fourth, or a fifth the worse by any risk it may have met with, and the damage will be thereby ascertained in the degree pointed out in Lewis v. Rucker ; and the underwriter who shall pay by this rule wUl pay such proportion, or .aliquot part of the value in the policy, as corresponds with the diminution in value occasioned by the damage. Lord Mansfield, in laying down the rule, speaks of the price of the thing at the port of delivery as the means of ascertaining the damage ; by which he must re JOHNSON V. SHEDDON. lean the whole sum which is to be paid for the thing. For le net proceeds are not the price, but so much of the price 3 remains after the deduction of certain charges. Lord [ansfield cannot mean the price before the mast, leaving le purchaser liable • to the payment of further sums ; for ich payment is in effect but a part of the price ; it is not a equivalent for the thing sold ; for if the purchaser were ot liable to the duties and charges, he would give as much tore as the amount of those charges come to. The price f a thing is what it costs a man ; and if, in addition to a iim to be paid before the mast, other charges are to be orne, that sum and the charges constitute the cost. It is ot necessary that the whole price should be paid to one erson. To taking the net proceeds to calculate by, there fe several objections ; one is, that by taking the net pro- 3eds as the basis of the calculation instead of the gross pro- 3eds, it will happen, where equal charges are to be paid n the sound and damaged commodity, that the underwriter dll be affected by the fluctuation of the market, which he aght not to be. This is obvious, from considering that if ou take equal quantities from two unequal quantities, the smaller such unequal quantities are, *the greater will -J be the difference between the remainders ; e. g. sup- ose sound goods, including all charges, to sell for 600^., amaged for 300^., let the charges on each be 100^., the ifference after they are deducted will be 300/., or three- ffchs. But let the goods come to a fallen market with the ame degree of deterioration, and let the sound sell for 300/. nd the damaged for 150/., and deduct from each the harges, the net proceeds of the sound will be 200/., and f the damaged 50/., and the difference trill be three-fourths, lut as the deterioration is the same in both cases, the un- erwriter should pay the same, whatever be the state of the larket ; which he will do if the gross produce be taken ;£ half the valued or invoice price. Another consequence JOHNSON V. 8HEDD0N. 277 of taking the net produce will be, that you will make the underwriter responsible for a loss not arising from the de- terioration of the commodity by sea-damage ; but for that loss which the assured suffers from being being liable to pay the same charges on the sound and damaged com- modity. This will be illustrated by the case put of two ships arriving with the same commodity equally damaged ; one being subject to duties and charges, and the other to none, the degree of deterioration being supposed the same, the underwriters should pay alike in both cases. Suppose then the cargoes- to be deteriorated ; that the de- mand for the commodity and the state of the market is the same : and that the goods if sound would seU for 1000^., but being damaged, for 500^., and the charges to be 200/. On those goods where no charges are to be paid, the insurer will have to pay 50 per cent. The goods on which charges are to be paid, being equally good with the other, wiU sell in the market for the same sum, and when the charges are deducted, if sound, will produce 800/. ; but being damaged, after the same deduction, will produce only 300/. : and ac- cording to that calculation, if the underwriter were to pay, he would pay five-eighths instead of four-eighths or one- half; not because one cargo has suffered more than the other by the sea,- for the supposition is, that the sea-damage is the same in both ; but from commodities of unequal value being subjected to equal duties and charges. Suppose the same goods sold before the mast ; a purchaser for those not liable to the duties would give exactly what he would give if there had been duties which the seller had paid; for as he has nothing further to pay to him, it is just the same, whether the seller had no charges to pay, or whether there were charges which he has paid ; the commodity in the one case and in the other comes to the buyer's hands in the *same state. But on these grounds, if liable to the r*203 further charges, he would give, if sound, but 800/., 278 JOHNSON v. SHEDDON. as the duties he would have to pay would make the whole cost 1000/., and if damaged and liable to the same charges, he could give but 300/. ; for as he would be liable to pay 200/. in charges, if he were to give above 300/., the whole amount of what he would ultimately pay for the damaged goods would exceed their value, which by the supposition is but 500/. ; he would therefore in this case give for the damaged less than in proportion to its degree of deterioration; for in giving 300/. he would only give three-eighths instead of four- eighths, or a half; not because the damaged commodity is not half so good as the sound, but because on such damaged com- modity he must pay as large charges as on the sound; and as this loss to the assured arises from a purchaser not being able to pay in proportion to the intrinsic quality of the commodity, it shows that a sale before the mast, when equal duties are to be paid, does not correspond with the deterioration of the commodity, nor ascertain whether it be a third, fourth, fifth, or in what degree worse than the sound; consequently that the difference of thfe net produce cannot be the rule to cal- culate by, where the charges are not proportioned to the respective values of the sound and damaged commodity; Another objection is, that if the net produce be taken, it may happen that you can have no data to calculate by, which will be the case if the gross produce of the sound commo- dity should only pay the charges, and has no net proceeds, for then there can be no difference between the net. proceeds of the sound and the damaged, in proportion to which it is contended that the underwriter is to pay. Upon the whole of this case it is our opinion that the rule should be abso- lute for a new trial. Rule absolute. FORBES V. ASPINALL. 279 *rORBES AND ANOTHER V. ASPINALL. [*204 Monday Feb. 11th, 1811. [Repokted 13 East 325.] The valuation upon a freight policy is calculated upon all the goods the ship is intended to carry upon the voyage insured, and if ly a pepl insured against the ship be lost, when part only of the goods, the freight of which was intended to be covered, was on board, the valuation must be opened, and the assured can only recover as for that proportional share ; as where freight valued at 6500^. was insured on a ship from any port or ports in Hayti to Liverpool ; and the ship, which had sailed with goods from Liverpool to Hayti on a voyage of barter, after exchanging a part of her outward cargo for fifty-five Vales of cotton at the port of Hayti, proceeded with the same to another port, for the purpose of making a similar barter of the rest of the outward cargo, but was lost by a peril of the sea before it was effected ; the assured was only entitled to recover for the freight of the fifty-five bales of the return cargo on board; though there was a moral cetiainty at the time, that the remaining part of her outward cargo would, except for the loss, have been exchanged for a full return cargo; for shortly after the loss of the ship, tlie goods saved from the wreck were, in fact, exchanged for more produce than was sufficient to have covered the freight insured. But if there be a loss by a peril insured against of the whole subject-matter of the insurance to which the valuation applied, as of all the intended freight, where the insurance is on freight, the valua- tion in the policy will not be opened. And in an action on a 280 • FORBES v. ASPINALL. freight policy, it seems sufficient to prove a contract under wMch the shipowner would have heen entitled to demand freight if the voyage were not stopped by a peril insured against. This case came before the Court upon a motion for a new trial *in an action on a policy of insurance, in which -• the plaintiffs had recovered a verdict at the sittings after last Trinity Term at Guildhall. It was first moved in the last term, when a rule to show cause was granted : and it was afterwards argued at length in the same term by the Attorney-General Scarlet, and Richardson, on the part of the plaintiffs, and by Park and Littledale for the defendant. The Court took till this term to consider of their judgment ; in delivering which the Lord Chief Justice went so fully into the arguments urged, and the cases cited at the bar, that it is unnecessary to repeat them. The insurance, as it concerned this case, was on freight valued at 6 500^.' upon the ship " Chiswick," " at and from any port or ports in Hayti to Liverpool, or her port of discharge in the United Kingdom." .The declaration alleged that on the 9th of July, 1808, the ship was in safety in a certain port in Hayti, and that divers goods and merchandises were then and there loaded on board, to be carried on the voyage insured ; that the plaintiffs were interested in the freight, etc., to the amount insured ; and that on the 15th of July the ship, with the goods on board, was lost by the .perils of the sea, and the plaintiffs thereby logt their freight, etc. The facts proved and admitted were, that the plaintiff's were the owners of the ship " Chiswick ;" that she saUed from Liverpool with the goods to Hayti to trade there, and to bring home a return cargo of produce, and arrived at Hayti on the 4th of July, 1808, with goods to be there bar- tered for other goods to be brought back to Liverpool. Part of the goods were accordingly bartered and exchanged for fifty-five bales of cotton, which were shipped on board at FOEBES V. ASPINALL. 281 Jaquemel (on the south side of Hayti) ; the remaining part of her outward cargo was was still on board, and would, in all probability, have been exchanged for other goods, but for the loss after-mentioned. That the ship proceeded from Jaquemel to Au Cayes, another port of Hayti, to barter away the residue of her outward cargo, and to complete her lading home ; and with such cargo and fifty-five bales on board, was in safety oh the 16th of July, when, by the perils of the seas, she was driven on shore and lost. That the defendant settled for the freight of the fifty-five bales of cotton, without prejudice to the plaintiff's claim for further loss of freight, if they were entitled to it. That the remaining part of the outward cargo, though damaged, was saved from the wreck, and in twelve days after the loss of the *ship, were exchanged for 250 r*on« tons of coffee and 100 tons of wood, the freight of which would have been of larger value than the sum insured on freight, if the ship had not been lost. Lord Ellenborough, C. J., now delivered the judgment of the Court. This was a motion for a new trial in an action upon a policy of insurance " at and from any port or ports in Hayti to Liverpool," etc., on freight valued at 6500^. The ship had sailed from Liverpool to Hayti with a cargo intended for barter ; had bartered away part of her outward cargo, and taken in fifty-five bales of cotton in part of her return cargo; and was proceeding from one port of Hayti to another, viz. from Jaquemel to Au Cayes, to barter away the residue of her outward cargo, and to complete her lading home, when she met with an accident by the perils of the sea which occasioned a total loss. If the plaintiffs be only entitled to a satisfaction for a partial loss, that satisfaction has already been made, and a nonsuit should be entered. But the plaintiffs contend, that as this was a valued policy. 282 FORBES v. ASPINALL. and as part of the goods to be carried upon the freight in- sured were on board at the time of the loss, they are entitled to claim their verdict for a total loss. Freight is the profit earned by the shipowner in the car- riage of goods on board his ship ; and an insurance upon freight is an insurance made in order to secure that profit to the shipowner, in case he is prevented^by any of the perils insured against from actually earning such profit! An insurance upon freight has no reference to the hull of the ship, or to its outfit for the voyage, both of which are protected by insurance upon the ship ; but its sole object is to protect the assured from being deprived, by any of the perils insured against, of the profit he would otherwise earn by the carriage of goods. To recover, therefore, in any case upon a policy on freight, it is incumbent on the assured to prove, that unless some of the perils insured against had in- tervened to prevent it, some freight would have been earned ; and where the policy is open, the actual amount of the freight which would have been so earned limits the extent of the underwriter's liability. In every action upon such a policy evidence is given, either that the goods were put on board, from the carriage of which freight would result, or that there was some contract under which the shipowner, if the voyage were not stopped by the perils insured against, ^ ^ would have been entitled to demand *freight ; and in -' either case, if the policy be open, the sum payable to the shipowner for freight, together with premiums of insu- rance and commission thereupon, is the extent to which the underwriters are chargeable.. In this case, therefore, as there was no contract under which the shipowner could claim freight, but for goods actually shipped on the homeward voyage, the assured could have made no claim, had this been an open policy, but to the extent of the actual freight on the fifty-five bales of cotton which were shipped for this country, and of the premiums and commission thereon. FOKBES V. ASPINALL. 283 And indeed that point has been settled against this very plaintiff, in an action on an open policy on this very risk, in Forbes and another v. Cowie, in Mr. Park's Addenda to the last edition, p. 604. The question then is, whether it makes any essential difference that this is the case of a valued policy ? And we are of opinion, upon full consideration, that it does not. The object of valuation in a policy is to fix, by agreement between the parties, an estimate upon the subject insured, and to supersede the necessity of proving the actual value, by specifying a certain sum as the amount of that value. In fixing that sum, if the assured keep fairly within the principle of insurances, which is merely to obtain an indemnity, he will never go beyond the first cost in the case of the goods, adding thereto only the premium and com- mission and, if he think fit, the probable profit ; and in the case of freight, he will not go beyond the amount of what the ship would earn, with' the premiums and commission thereupon. The valuation, however, in the case of goods, looks to all the goods intended to be loaded ; and in the case of freight, it looks io freight upon all the goods the ship is in- tended to carry upon the voyage insured ; and if by the perils insured against in a valued policy on goods, part only of the goods intended to be covered be lost, the valuation must be opened, and the assured can only recover in respect of that part ; and so, if by the perils insured against, the freight of part only of the goods to be carried be lost, the assured can only recover in respect of that loss, according to the proportion which that part bears to the whole sum at which the entire freight was estimated in the valuation. If, for instance, the insurance be generally upon goods, and the goods intended to be protected be 500 hogsheads of sugar, and a valuation be made accordingly, but the ship by acci- dent takes on board 100 only, and sails, and is afterwards lost by one of the perils insured against with those 100 on board, can it be contended that the assured shall recover to 284 FORBES v. ASPINALL. the *full amount of the valuation, that is, for the *^^^-' whole 500, when he has lost only 100 ? So in the case of freight ; if the ship would carry 500 tons, and in fixing the valuation the. assured calculates his freight upon 500 tons, but when he reaches the loading port he can get 10 tons only upon freight, and sails upon the voyage insured with those 10 tons only; is it to be allowed, that if the ship be lost by any of the perils insured against, and he thereby lose freight upon 10 tons, he shall be entitled to the valua- tion which includes the freight upon 500 tons ? And yet, to this extent the plaintifi"s argument in this case is carried. The proposition is monstrous ; instead of confining the policy, as it' ought to be confined, to a contract as nearly as may be of indemnity, against what may be lost in respect of freight by the perils insured against, it converts it into a contract of indemnity against a diff"erent class of accidents, which may operate to prevent the assured from being able to pro- cure a full cargo upon freight, •a,nd. may make it the interest of the assured, which it never ought to be, that a loss should happen. The Court therefore will look for very strong au- thorities before they yield to such a proposition. It was pressed, upon the argument, that in the case of a valued policy, if any interest be proved to be on board, and there be no fraud, a total'loss will entitle the assured to re- cover the sum specified in the valuation. And to tha;t posi- tion we accede,"with this limitation, that is, provided there is a total loss, by any of the perUs insured against, of the WHOLE subject-matter of insurance to which the valuation applied, viz., of all the intended cargo of goods, where the insurance was on goods, and of all the intended freightj where the insur- ance was upon freight. But if he meani to carry that position to this extent, that the underwriter is not at liberty to inquire what was intended to have been included in that valuation ; or when he has ascertained that point, that he cannot reduce the sum below the valuation, by proving that a part only of FORBES V. ASPINALL. 285 what was included in the valuation has been lost by a peril insured against ; we deny the position when so extended. In Shaw v. Felton, 2 East 109, which has been strongly re- lied upon, the interest of the assured was in ship and outfit, including provisions and sea stores laid in for slaves, and wages advanced to the crew : and the chief ground insisted upon for opening the policy was this, that the principal part of the provisions had been consumed in the voyage, and therefore had n'bt been lost by the *perils insured [-*oqq against. But that ground was resisted with effect, because the subject insured was to be considered as of the value ascribed to it when the voyage commenced ; and if the diminution of the provisions were to be allowed to reduce the extent of the underwriter's liability upon the policy, every valued policy upon the ship would be opened ; be- cause every day, after the voyage commenced, the quantum of the ship's provisions would be proportionably reduced. Mr. Justice Lawrence, in the opinion he gave, intimated distinctly, that upon an open policy such a diminution would not have varied the underwriter's liability. That case, when examined, does not appear to have proceeded altogether, if at all, upon a distinction between valued and., open policies; it was not decided upon the ground that if part only of the subject intended to be covered by the policy, and included in the valuation, were lost by the perUs insured against, the policy could not be opened, ai^d the liability of the under- writers apportioned; but upon this ground merely, viz. that in the case of an insurance upon ship and outfit, if a total loss of ship occurred by a peril insured against, no deduction was to be made for provisions, etc., expended in the voyage before the loss occurred, or for the deterioration of the ship during that time; but that the underwriters were to be answerable for the original value, estimated in whatever manner such original value might be, as though the loss had occurred the instant after the policy attached. Indeed, where 286 FORBES v. ASPINALL. a loss occurred before any freight is earned, it would be un- just not to charge the underwriters to that extent, because by the event it has become of no avail to the assured, that the provisions have been expended, and the ship used; and that case, as applied to the present, only decides that the underwriter is chargeable to the same extent. The only remaining case relied upon by the plaintiffs, which is material to be considered, is that of Montgomery v. Egginton, which is shortly reported in 3 Term Rep. 362. • This was an action on freight valued at 1500Z. Freight to the amount of 500Z. only was on board when the ship was lost ; but goods to the amount of the rest of the freight were ready to be shipped, and were lying on the quay for that purpose at the time. Lord Kenyon told the jury that if this were a honA fide transaction, and not a mere colorable insurance and a gaming policy, the assured was entitled to Yecover for the whole value in the policy. The jury gave a verdict for that sum : and though a rule nisi for setting aside the ver- dict was obtained, yet the opinion of the Court being *2101 *s^'"0'^Sly against the rule, it was afterwards aban- doned. The grounds of this decision between valued and open policies are not expressly stated : and it might be that upon an (ypen policy in such a case. Lord Kenyon and the Court might have thought that the assured would have been entitled to recover in respect of the freight on the goods on shore, as well as fo^ the freight of those that were actually put on board. There might be circumstances in that case which would have entitled the shipowner to full freight, had the owners of the goods on shore refused to let them be shipped, and the ship had sailed with that part only which she had on board; there might have been a contract for giving the ship a fuU loading; or it might have been con- sidered (though it is difficult to suppose that it was) that, as the residue of the goods to complete a cargo was ready to be shipped, and lying on the quay for the purpose, it was FORBES V ASPINALL. 287 the same to the assured' as if they really had been shipped. If that case, however, is to be considered as having decided that upon a policy estimating the freight upon a full cargo at 1500/., a loss by a peril insured against may be recovered to that extent, when a third only of a cargo is obtained, and freight to the amount of such third could only have been earned, and when it was uncertain whether none ever could have been procured, we should pause long before we allowed ourselves to adopt such, a ground of decision; we should hesitate extremely before we should say that 1500/., the calculated amount of the whole intended risk, should be paid for a loss of 500/. incurred in respect of a third of the in- tended risk; in other words, that a totalloss should be paid for a loss of onli/ one-third of that which the parties to the insur- ance contemplated as the whole subject insured. It is sufficient however to say, that that case is distinguishable from this in many of its circumstances. There a full cargo was ready to be laden, and ihe ship in a state ready to receive it, and nothing but the perils insured against did or (as appears) could prevent its being received; here it was uncertain whether any additional cargo could have been ever procured, and the outward cargo must also have been discharged be- fore the homeward cargo could have been completed; so that the ship was not ever in a condition to receive her home- ward cargo, if the cargo had been ready, which it never was, to have been put on board. In a case, therefore, circum- stanced as this is, where the valuation was with reference to freight upon a complete cargo; where a complete cargo, or any *thing like a complete cargo, never was in fact obtained, and for all that appears never might have L been obtained; where there was no contract by any person to load a complete cargo, or pay dead freight, but the ship was a mere seeking ship ; we cannot feel ourselves war- ranted in saying that there has been a total loss, by any peril insured against, of that which the insurance was intended to 288 FOKBES v. ASPINALL. cover, and which the valuation contemplated, viz. fre upon a complete cargo ; but are obliged to pronounce, that no loss by the perils insured against is made out beyond the loss of freight upon part of a cargo only, viz. upon fifty-five bales of cotton ; that the assured are therefore not entitled to recover a total loss, but an apportionment only, according to the measure of their actual loss ; and as that apportion- ment has been already allowed to the plaintiffs, that there must be a new trial case. Lewis V. Rucker, Johnson v. Sheddon (generally known at Lloyd's as the Brimstone Case), and Forbes v. Aspinall, are always cited as leading authorities upon the mode of the adjustment of average. They are all worthy of an attentive perusal, and in particular the judgment in Johnson v. Sheddon, which has been stated by an eminent author to be " one of the ablest evir delivered in Westminster Hall:" 2 Am. Mar. Ins. 835, 3d ed. The principle upon which the underwriters' liability to make good a loss, whether total or partial proceeds, is well stated by Lord Mansfield, 0. J., in Lewis v. Rucker. It depends upon the nature of the contract of insurance, which is a contract of indem- nity against the perils of the voyage, "the insurer engages, so far as the amount of the prime cost, or value in the policy^ ' that the thing shall come safe,' he has nothing to do with the market :" 'ante, p. 195. ' • .In the case of a valued policy, the valuation in the policy is the agreed standard ; in the case of an open policy, the invoice price at the loading port, including premiums of insurance and commis- sion, is for all purposes of either total or average loss, the usual standard of calculation resorted to for the purpose of ascertaining this value: per Lord EUenborough, C. J., in Usher v. Noble, 12 East 646. Suppose, for instance, in a valued policy the goods were valued in the policy of insurance at lOOOZ. : if there were a total loss, the underwritfers would be liable, pursuant to their own agreement, to pay lOOOZ. to the insured ; nor could they, except in the case of LEWIS V. KUCKEE. 289 a fraudulent overvaluation, an instance *of which is given by Lord Mansfield, C. J., in Lewis v. Rucker (see ante, p. t. "'■'••^ 196), require the assured to prove the actual value of the subject- matter of the insurance (Shawe v. Felton, 2 East 109 ; Marshall v. Parker, 2 Oampb. 69 ; Haig v. De la Cour, 3 Campb. 319 ; Feise v. Aguilar, 3 Taunt. 606 ; Irving v. Manning, 1 H. L. Gas. 287 ; 6 C. B. 391 (60 E. C. L. R.) ; 2 C. B. 784 (52 E. C. L. R.)) ; and it is immaterial that the subject-matter of the insurance is dimin- ished in value, LEWIS V. RUCKEE. 297 See Forbes v. Aspinall, ante, pp. 206, 207 ; Forbes v. Cowie, 1 Campb. N. P. 520. , It may here be mentioned that valuation in a policy is only con- clusive in settling a loss upon it between the assured and under- writers who have subscribed it : Bousfield v. Barnes, 4 Campb. 228, 229. And the valuation in one policy will not limit the assured to that amount in an action against other underwriters, to another policy where the valuation is fixed at a higher sum ; but the amount he has recovered under the former policy must go in reduction of the sum recoverable under the latter. Hence where there are several valued policies of insurance effected upon the same vessel valued differently, and upon a total loss the assured receives under some of the policies part of the sums insured, in an action upon another polioy he is only entitled to recover the difference between the amount received and the agreed value in that policy. See Bruce *v. Jones, 1 Hurlst. & C. 769. There a shipowner had r^oi Q effected upon the same ship four policies of insurance, in which respectively the agreed value of the ship was stated to be 3000Z., 3000Z., 6000Z., and 3200Z., and upon a total loss received under the three former policies sums amounting to 3126Z. 13g. 6d., and then sued upon the latter policy — that for 3200Z. It was held by the Court of Exchequer (overruling the case of Bousfield v. Barnes, 4 Campb. 228), that as between the assured and the underwriter of that policy, the value of the ship must be taken to be 8200?., and the assured was only entitled to recover the difference between that sum and 3126Z. 13s. Qd. " The learned judge who tried the cause," said, Pollock, C. B., "considered that, as between the plaintiff and defendant, the value of the vessel must be taken as 3200Z., and it appears to me that is the correct view. It may happen that when a vessel is insured for a long time, or a long voyage, her value may not be the same at the beginning as at the end of the voyage. More freight being carried might increase her value, or she might have met with an accident, and have been so thoroughly repaired that her value might be considerably increased. But in general the value must be taken to be that which is stated in the policy. If that is binding upon the underwriter, so that he cannot give evidence of the real value of the vessel, and so prevent the assured from recovering the amount stated in the policy, the assured is equally bound by the agreed value, and if he has re- 298 LEWIS V. RUCKER. ceived that amount, he has no further claim upon any other under- writer. If he has received less, he can only recover on other policies the difference." Where however a person effects two insurances, declaring the same value in each, he is bound by that sum, and cannot recover beyond that extent. Thus, in Irving v. Richardson, 1 Mood. & Rob. 153, a party insured by one policy for 1700?. on a ship valued at 3000Z., and by another on the same ship, valued again at 3000Z. It was held by Lord Tenterden, C. J., "that the assured could not receive more than 3000i!. on the two policies. See also s. c. 2 B. & Ad. 193 (22 E. C. L. R.) ; Morgan v. Price, 4 Exch. 615. Where the assured has an interest in any part of a cargo, on a valued policy it will be unnecessary for him to prove the amount of interest, as its value will be taken to be that of the value insured : Feise v. Aguilar, 3 Taunt. 506. A question sometimes arises in badly drawn policies, whether they are open or valued policies. In these cases it should be borne in mind, that the onus of showing a policy to be a valued one lies upon the underwriters : Wilson v. Nelson, 5 B. & S. 354 (117 E. C. L. R.). In estimating a total loss on an open policy, the value of the goods at the commencement of the risk with the usual charges is what the insurer ought to pay, and the prime cost is generally the safest and best rule of ascertaining such value, especially when the goods are purchased for ex- portation: Le Roy v. United Ins. Co., 7 Johns. 343; Bailey v. South Carolina Ins. Co., 3 Brevard 354. The insured on a policy, on a ship which sustains a total loss by a seizure for illicit trade, is entitled to recover all expenses fairly incurred in obtaining a restoration of the proceeds of the ship on condemnation and sale: Francis v. Ocean Ins. Co., 6 Cowen 404; Jumel V. Marine Ins. Co., 7 Johns. 412 ; Watson v. Marine Ins. Co., Id. 57. The rule for fixing the value of a vessel which has been lost, and which has been insured in an open policy, is to take the sum she was worth at the time of her departure including certain expenses : Carson v. Marine Ins. Co., 2 Wash. C. C. 468; Snell v. Ins. Co., 4 Ball. 430. On a total loss the insured is entitled to recover the invoice price of goods without any deduction for the drawback allowed "on exportation : Gahn v. Broome, 1 Johns. Cas. 120 ; Minturn v. Columbian Ins. Co., 10 Johns. LEWIS V. KUCKBR. 299 75. Goods laden at a foreign port should be valued at their invoice price there : Coffin v. Newburyport Ins. Co , 9 Mass. 436 ; Clark v. United Ins. Co., 7 Id. 365. The rule for calculating a partial loss, is to take the proportion of the diiference between the gross price of the sound and damaged articles at the place of delivery, and' for the insurer to pay that proportion upon the gross value of the goods specified in the policy : Lawrence v. New York Ins. Co., 3 Johns. Cas. 217. A partial loss arising from a compulsory sale of the cargo in a foreign port, is to be estimated by deducting the net proceeds of the sale from the invoice amount or cost of the goods : Suy- dam V. Marine Ins. Co., 2 Johns. 138. The assured can recover only the proportion of the valuation in the policy, which the goods and freight at risk bore to the subject-matter valued : Walcott'y. Eagle Ins. Co., 4 Pick. 420 ; Alsop V. Ins. Co., 1 Sumn. 451 ; Haven v. Gray, 12 Mass. 71. If temporary repairs are made on a vessel in a foreign port, by the authority and for the sole benefit of the insurers, they must bear the whole expense of the temporary re- pairs as well as of the permanant ones subsequently made in the home port, although the two sums taken together should turn out to be more than the amount for which the vessel was insured : Alexander v. Sun Ins. Co., 49 Barb. 475. In adjustment of partial losses, valued policies are to be treated like open policies : Clark v. United Ins. Co., 7 Mass. 365. In calculating the loss on an open policy the premium of insurance is to be added: Ogden V. Columbian Ins. Co., 10 Johns. 273 ; Mayo v. Maine Ins. Co., 12 Mass. 259 ; Bailey v. South Carolina Ins. Co., 3 Brevard 354 ; Ins. Co. v. Bland, 9 Dana 143 ; Cox v. Charleston Ins. Co., 3 Richardson 331. The expense of salvage is to be added to that of repairing, in estimating a partial loss : Sewall V. United States Ins. Co., 11 Pick. 90. The valuation in a policy is conclusive on the insurers, if there is no fraud or imposition : Kane v. Commercial Ins. Co., 8 Johns. 229; Deblois v. Ocean Ins Co., 16 Pick. 303 ; Whitney v. American Ins. Co., 3 Cowen 210 ; S. o. 5 Id. 712 ; Carson V. Marine Ins. Co., 2 Wash. C. C. 468. In adjusting a partial loss on a ship which has been repaired, the pro- ceeds of the old material not used in the repairs are first to be deducted from the gross expenses of the repairs, and then the deduction of one-third new for old is to be made from the balance : Eager v. Atlas Ins. Co., 14 Pick. 141 ; Byrnes v. National Ins. Co., 1 Cowen 265. The rule to deduct from the cost of repairs one-third for the difierence between new and old materials, applies even when the ship is new : Nickels v. Marine Ins. Co., 11 Mass. 253; Sewall v. United States Ins. Co., 11 Pick. 90; Deblois v. Ocean Ins. Co., 16 Pick. 303; Dunham v. Commercial Ins. Co., 11 Johns. 315; Orrak v. Commonwealth Ins. Co., 21 Pick. 456. In case of repairs of the damage done to a ship by the perils insured against, the customary 300 LEWIS V. RUCKER. deduction of one-third new for old, is applicable only to the labor and materials employed in the repairs, and to the new articles purchased in lieu of those which are lost or destroyed; and it does not apply to other inci- dental expenses having no connection with the repairs or new articles fiir- nished, and from which the assured can possibly derive no enhanced Value or benefit beyond his loss ; such as steamboat towage, boat hire, &c. : Potter v. Ocean Ins. Co., 3 Sumn. 27 ; Hall v. Ocean Ins. Co., 21 Pick. 472. In an action on a valued policy to recover for a partial loss, the measure of damages is the difference between the appraisement of the damaged article and that stipulated in the policy with all necessary expenses : Natchez Ins. Co. V. Buckner, 4 Howard (Miss.) 63 ; Stanton v. Natchez Ins. Co., 5 Id. 744. Upon a total loss the sum insured in a valued policy is the measure of damages, and is not to be reduced on account of any expenses required in the management and sale of the damaged property : Ports- mouth Ins. Co. w.Brazee, 16 Ohio 81. Where the insurer is liable beyond the amount of a total loss, for expenses which have been paid by the in- sured, the latter will be allowed interest from the time of making the advance : Vanderheuvel v. United Ins. Co., 1 Johns. 406. TYRIE V. FLETCHEE. 301 *TYE,IB V. FLETCHER. [*220 Mich. Term, 18 Geo. III., B. R., Tuesday, Nov. 26, 1777. [Reported Cowp. 666.] Insurance — Return of Premium.] — Upon a policy '^ at and\ from such a port to any other port or place whatsoever, for twelve months at 91. per cent., warranted free from capture," the risk is entire ; and therefore if once begun there shall he no return of the premium. This was an action on the case, for money had and re- ceived to the plaintiff's use, brought by the plaintiff, the insured in a policy of insurance, against the defendant, the underwriter, for a return of part of the premium. The cause was tried before Lord Mansfield, at Guildhall, at the Sittings after last Trinity Term, when, by consent, a verdict was found for the plaintiff, subject to the opinion of the court upon the question, whether, under the circum- stances of the case, a proportionable part of the premium out to be returned or not? If the court should be of opinion that a proportionable part of the premium ought not to be returned, then 'a nonsuit was to be entered. It now came before the court upon a rule to show cause why a nonsuit should not be entered ; and the cause, as it appeared from the report, was shortly this : " The policy of insurance was upon the ship ' Isabella,' at and from London to any port or place, where or whatsoev.er, for twelve months, from the 19th of August, 1776, to 19th of August, 1777, both days inclusive, at 9^. per cent., warranted free 302 TYRIE V. FLETCHER. from captures and seizures by the Americans and the con- sequences thereof." In all other respects it was in the common form, against all perils of the sea, &c. The ship sailed from the port of London, and was taken by an American privateer, about two months afterwards. *99-i-i *M.r. Dunning &n.di Mr. i?a«;ewjoor^ for the plaintiff, showed cause, and insisted that a proportionable part of the premium in this case ought to be .returned; that 9^., the compensation estimated for the risk of twelve months, was much more than adequate to the risk actually run in this case, viz. only two .months ; that from the nature of the insurance, both parties must know the risk was divisible, and of course intended, if it ceased before the twelve months, that the whole premium should not be retained ; that this was the law in other cases, where upon a suitable compen- sation for a given risk, the risk had turned out to be different from what was expected. In Stevenson v. 8now, 3 Burr. 1237, the risk ceased before the end of the voyage insured, and it was there held there should be a return of the premium in proportion to the risk that had not been run. It is true that was a policy upon a voyage ; but it is as easy, or easier, to apportion the risk in a policy upon time as it is in a policy upon distance. In the case of Bond v. NuU, Trin. 17 Geo. III., B. R. (Cowp. 601), which was a policy " at and from Jamaica to London," the underwriters paid into Court a part of the premium, in proportion to that part of the voyage from which they held themselves discharged. This case is not like the case of an" insurance upon lives, to which it was compared at the trial ; because that is in the nature of a wager. But this is, in the true spirit and use of an insurance, an indemnity against a loss. That loss, ac- cording to the terms of the policy, might accrue later or earlier, or not .at all; but in the case that has happened, namely, a capture by an American privateer, the risk of any such loss as that insured against must totally cease. The TYRIB V. FLETCHER. 303 construction therefore of this policy, under these circum- stances, ought to be, that it was an insurance for twelve months, at the rate of so much per month ; and as the risk in fact was only run for two months, the premium advanced upon the other ten ought to be returned. Mr. Wallace and" Mr. Baldwin, contrd,, for the defendant, and in support of the rule, contended that as soon as the ship sailed from the port of London, the policy attached for the whole time insured against. That there was no calcula- tion of the premium, at so much per month; but it was one entire gross sum of 91. per cent, stipulated and paid for twelve months. The contract therefore was entire, without any intention or thought of division or apportionment. That the case of Stevenson v. Snow did not at all apply ; for there the Court went upon the ground of its *being r*ooo a policy upon two distinct voyages, separately and distinctly in the contemplation of the parties at the time; and the premium calculated accordingly. Of course, if either of the voyages were prevented from taking place, the risk upon it could not attach ; and therefore the premium ought to be returned. Upon the principles laid down on the other side, every policy for time might be divided. Suppose an insurance for a month, would the plaintiff have been en- titled to restitution for a number of days? It is absurd; and there would be no drawing the line. If there had been a recapture the policy would have been revived. The fault of the party, is not the true ground upon which the return of premium is or is not allowed ; but it rests upon this : whether the risk or the voyage insured has begun ? If it has, there can be no return of premium : 2 Magens, No. 1071. There are many cases where, notwithstanding the fault of the party, a return of premium is allowed. For in- stance, if a ship is insured at and from such a port to such a port, and the party goes on another voyage, the premium must be returned, because the risk never commenced. So, 304 TYBIE V. FLETCHER. if he is to sail with convoy, and stays behind. But with respect to the present case, it is not distinguishable from an insurance upon a life for a year, with an exception of suicide, where the party destroys himself within a month. No one ever thought of requiring a return of premium in that case, because the risk is entire. So here, it is one entire, indivisible risk ; which being once begun, there can be no return of premium, and consequently the plaintiff is not entitled to recover. Lord Mansfield, C. J. — It was very proper to save this case for the opinion of the Court, because, in all mercantile transactions, certainty is of much more consequence than which way the point is decided, and more especially so in the cage of policies of insurance; because if the parties do not chose to contract according to the established rule, they are at liberty between themselves to vary it. This case is stript of every authority. There is no case or practice in point; and therefore we must argue from the general principles applicable to all policies of ' insurance. And I take it, there are two general rules established, appli- cable to this question, — the. first is. That where the risk has not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured, or tojiny other cause, the *2'2ST J"'"^™'^^ sAa^^ be returned *because a policy of insur- ance is a contract of indemnity. The underwriter receives a premium for running the risk of indemnifying the insured, and whatever cause it be owing to, if he does not run the risk, the consideration, for which the premium or money was put into his hands, fails, and therefore he ought to j-eturn it. 2. Another rule is, that if that risk of the contract of indemnity has once commenced, there shall be no apportionment or return of premium afterwards. For though the premium is estimated, and the risk depends upon the nature and the length of the voyage, yet, if it has com- TYRIE V. FXETCHER. 305 menced, though it be only for twenty-hours or less, the risk is run y the contract is for the whole entire risk. And no part of the consideration shall be returned ; and yet it is as easy to apportion for the length of the voyage, as it is for the time; If a ship had been insured to the East Indies agreeably to the terms of the policy in this case, and had been taken twenty-four hours after the risk was begun by an American captor, there is not a color to say that there should have been a return of the premium. So much then is clear ; and indeed perfectly agreeable to the ground of determination in the case of Stevenson v. iSnow, 3 Burr. 1237, for in that case the intention of the parties, the nature of the contract, and the consequences of it, spoke manifestly two insurances and a division between them. The first object of the insurance was from London to Halifax, but if the ship did not depart from Portsmouth with convoy (particularly naming the ship appointed to be convoy), then there was to be no contract from Portsmouth to Halifax. Why, then, the parties have said, "we make a contract from London to Halifax, but on a certain contingency it shall only be a con- tract from London to Portsmouth." That contingency not happening, reduced it in fact to a contract from London to Portsmouth only. The whole argument turned upon that distinction. Mr. Yates, who was for the plaintiff, put it strongly upon that head j and all the judges, in delivering their opinion, lay the stress upon the contract comprising two distinct conditions, and considering the voyage as being in fact two voyages ; and it was the equitable way of con- sidering it; for though it was at first consolidated by the parties, there was a defeasance afterwards, though not in words. I think Mr. Justice Wilmot put it particularly upon that ground, but it was the opinion of the whole Court. There was a usage also found by the jury in that case, that it was customary to return a proportionable *part of the r^nnj premium in such-like cases, but they could not say 20 306 TYRIE V. FLETCHEE. wh^t part. The Court rejected this as a usage for the un- certainty; but they argue from it, that there being such a custom, plainly showed the general sense of merchants as to the propriety of returning a part of the premium in such cases. And there can be no doubt of the reasonableness of the thing. There has been an instance put of a policy where the measure is by time, which seems to me to be very strong and apposite to the present case ; and that is an insurance for a man's life for twelve months. There can be no doubt but the risk there is constituted by the measure of time, and depends entirely upon it ; for the underwriter would demand double the premium for two years that he would take to insure the same life for one year only. In such policies there is a general exception against suicide. If the person puts an end to his own Ufe the next day, or a month after, or at any other period within the twelve months, there never was an idea in any man's breast that part of the premium should be returned. A case of general practice was put by Mr. Dunning, where the words of the policy are, "At and from , provided the ship shall sail on or before the 1st of August," and Mr. Wallace considers in that case, that the whole policy would depend upon the ship sailing before the stated day. I do not think so ; on the contrary, I think with Mr. Dunning, that cannot be. A loss in port before the day appointed for the ship's departure, can never be coupled with a contin- gency after the day ; but if a question were to arise about it, as at present advised, I should incline to be of opinion that it would fall within the reasoning of the determination in Stevenson v. Snow, and that there were two parts or con- tracts of insurance, with distinct conditions. The first is, I insure the ship in port, provided she is lost in port before the 1st of August ; and secondly, if she is not lost in port, I insure her then during her voyage from the 1st of August TYRIE V. FLETCHER. 307 till she reaches the port specified in the policy. The loss in port must happen before the risk on the voyage could commence ; and, vice versd, the risk in port must cease the moment the risk upon the voyage began. Let us see then what the agreement of the parties is in the present case. They might have insured from two months to two months, or in any less or greater proportion, if they had thought proper so to do; but the fact is, that they have made no division of time at all; but the contract entered into is one entire contract *from the 19th August 1776 to the p^,f>r, r 19th August 1777, which is the same as if it had been expressly said by the insured, " If you, the underwriter, wUl insure me for twelve months, I will give you an entire sum ; but I will not have any apportionment.". The ship sails and the underwriter runs the risk for two months, no part of the premium then shall be returned. I cannot say, if there had been a recapture before the expiration of the twelve months, that the policy would not have revived. Aston, J. — This case depends upon the words of the policy, and I am of opinion, it is one entire contract at a certain gross sum of 9Z. per cent, for a certain period of time, viz., twelve months ; and that no division is to be implied. The determination in Stevenson v. Snow went expressly upon this consideration, that there were two distinct voyages ; and no consideration received by the insured for the premium upon the second voyage ; and there certainly was not, for there never was any point of time when any risk was run from Portsmouth. In Bond v. Nutt, the losses insured against were distinct, and unconnected with each other : 1st, a loss of the ship in port, if any should happen there ; 2dly, a loss in her passage home, provided she sailed on a c.ertain day. The risk in some policies may be distinct and divisible in its nature. In the case of an insurance upon a life, the sum is lumped, and the time is lumped for the year. So in this 308 TYRIB V. FLETCHEE. case, I think the contract is one entire contract ; and there- fore, that there ought to be no return of premium. Mr. Justice Wilks and Mr. Justice Ashurst were of the same opinion. Per Cur. Let a nonsuit be entered. *When an underwriter is able to show that he is not liable J upon a policy of insurance, the question often arises whether the insured is entitled to a return of the whole or a part of the pre- mium. Oases where Bish has not been run. — In the absence of any ex- press stipulations (which are often inserted in policies) the rules laid down by Lord Mansfield, C. J., in the principal case are always re- ferred to for the purpose of determining the question. "The first rule," in the words of that eminent judge, "is that where the risk has not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured, or to any other cause, the premium shall be returned." The reason he gives is, " Because a policy of insurance is a contract of indemnity. The underwriter receives a premium for running the risk of indemnify- ing the insured, and whatever cause it be owing to, if he does not run the risk, the consideration, for which the premium or money was put into his hands, fails, and therefore he ought to return it." To show the application of this rule, may be cited the case of Martin v. Sitwell, 1 Show. 161. There a policy had been effected on goods and a premium paid on behalf of the plaintiff, who had no goods on board : it was held that the premium must be returned. "The money," said Holt, C. J., "is not only to be returned by custom, but the policy is made originally void, the party for whose use it was made having no goods on board ; so that by this discovery the money was received without any reason, occasion, or considera- tion, and consequently it was originally received to the plaintiff's use." So if the insured has no insurable interest in a ship, if there be no illegality in the voyage nor fraud in effecting the policy, he will TYRIE V. FLETCHER. 309 be entitled to claim a return of the premium from the underwriters, ■who set up his want of an insurable interest as a defence to his claim upon the loss of the ship. See Routh v. Thompson, 11 East 428. Where however the risk has been run, and the ship or goods in- sured have arrived in safety, the premium cannot be recovered upon the ground of the plaintiff not having had an insurable interest : M'CuUoch V. Royal Exchange Assurance Company, 3 Campb. 406. When either, in a valued or an open policy, only a part of the goods insured are put on board, a proportionable return of the pre- mium must be made for what is termed "short interest." For example, if 100 bales of cotton be insured, valued at lOOOZ., or at 101. per bale, or if 100 bales of cotton be specified in the policy as the subject of insurance without any valuation, in such and the like cases, if there be only 50 bales on board, " or only half the interest intended, and declared to be insured, a return of half the premium must be made for short interest:" 2 Arn. Mar. Ins. 1224, *2d ed. ; Stevens on Average 204, 5th ed. ; see also Horn- r=icoo7 eyer v. Lushington, 15 East 46 ; 3 Campb. 90. So likewise when the profits on goods are insured, a return of premium will be made for short interest, which means no more than a short profit on the cargo to the extent of the whole sum insured : Eyre v. GloVer, 16 East 218, 220. In the case however of a valued policy, if all the goods have been put on board, there will be no return of premium made, upon the ground that the goods were not of the value mentioned in the policy : MacNair v. Coulter, 4 Bro. P. C. 450, Toml. ed. ; and see Stevens on Average 200, 5th ed. If an- over-insurance has been effected, that is to say, where the assured insures property for a greater amount than its actual value, as he could only recover from the underwriters the amount of the value, and as that is the measure of their risk, he will be entitled to recover from them a part of the premium, proportioned to the amount by which the aggregate sum insured exceeds the insurable value of the property risked. The question then arises, how in the event of there being several underwriters, shall they contribute to return the premium ? It seems to be clear that where the over- insurance is effected by a single policy, all the underwriters, what- 310 TYKIE V. FLETCHER. ever may be the date of their subscriptions, must contribute rateably to the return : Marsh on Insurance 649. The law is also the same where there are several policies of the same date, as these are oonsidered as one policy : Fisk v. Master- man, 8 Mees. & W. 165. Where however there are several sets of policies of different dates, those' underwriters who have at any time been liable to pay the whole amount of their subscriptions are entitled to retain the whole amount of the premium, while the underwriters on the sub- sequent sets who do not come within that category must make a reteable return for over-insurance. Thus, in Fisk v. Masterman, 8 Mees. & W. 165, the plaintiff, a merchant at New Orleans, shipped 1957 bales of cotton from Mobile to Liverpool, consigned to a house there. On the 12th April, insurances were effected on the cotton by five several policies, at the rate of fifty guineas per cent. On the 13th, news of the vessel's safety having arrived, a further insurance was bond fide effected by six different policies, at ten and five guineas per cent. The latter insurance, added to the former, exceeded in amount the value of the subject-matter insured, but the former of. itself did not. It was held by the Court of Exchequer that the plaintiff was entitled to have a return of the premiums to the amount of the over-insurance, to which the under- writers who subscribed the policies on the 13th of April were to contribute rateably, in proportion to the sums insured by them respectively on that day, — the amount of the over-insurance to be *2281 *^s''®'''^^iii6j r*298 was. L No member, however, of a partnership can bind another by draw- ing or accepting a bill, unless he have an authority, either express or implied, so to do ; as, for instance, where no express authority is given by agreement between the partners, and the partnership is not known to the world. Thus in Nicholson v. Ricketts, 2 E. & E. 623 (105 E. C. L. R.), the defendants, carrying on business as merchants in London, entered into a contract with Von Seutter & Co., merchants at Buenos Ayres, for the purpose of transacting exchange operations : the substance of which was, that Von Seutter & Co. should, periodically, draw and sell, at Buenos Ayres, bills for the defendants, to be accepted by them, and should periodically remit other bills to the defendants to the same amount, to keep the defendants out of cash advance ; that the proceeds of these opera- tions should be applied to the common purposes of the two firms, and that there should be a community of profit and loss between them. In the course of these transactions, Von Seutter & Co. drew certain bills on the defendants, and sold them to the plaintifis. These bills the defendants refused to accept, when presented to them in this country for acceptance ; ^nd the plaintiffs thereupon brought an action, against the defendants, upon the ground that the agreement, and the community of profit and loss, constituted the defendants partners with Von Seutter & Co., and so rendered them liable on the drawing of the bills by the latter. The Court of Queen's Bench, however, held that the plaintiffs had no cause of action against the defendants. " In ordinary cases of commercial partnership," said Cockburn, C. J., "there is no need of express authority, the .law implying an authority from the fact that the 406 SANDILANDS v. MARSH. drawing and accepting of bills is part of the ordinary course of such a partnership. So, again, in partnerships not strictly com- mercial, it is obvious from the nature of the partnership, or from the particular purposes to which the bills are to be applied, that the drawing of bills is essential, there also the law implies an authority to each partner to draw them. But here there being no express authority to Von Seutter & Co. to draw so as to bind the defendants, but, on the contrary, an arrangement that the one firm should draw and the other accepit, and that each should be bound so far only as their own signature was concerned, it seems to me that no authority can be implied. The existence and purposes of this partnership were unknown to the world. The principle, there- fore, that where a partnership for particular purposes is held out to the world as existing, and it is reasonable to consider that the draw- ing of bills is incidental to those purposes, one partner has an im- plied authority to bind the others by drawing bills, is here inapph- cable:" Kilshaw v. Jukes, 3 B & S. 847 (113 B. C. L. R.). *2QQ1 *■'■* ^®^'^^' *^^* ordinarily one partner cannot bind the firm by a guarantee for collateral purposes (Duncan v. Lowndes, 3 Campb. 478; Hasleham v. Young, 5 Q. B. 833 (48 E. C. L. R.); Brettle v. Williams, 4 Exch. 623) ; but where it is within the scope of the partnership dealings, one partner has power to do so (Ex parte Gardom, 15 Ves. 286 ; 2 Hov. Supp. 406 ; Ex parte Nolte, 2 G. & J. 306) ; and the firm may be bound although the guarantee may have been given out of the usual course of their business,. if, as in the principal case, they have subsequently adopted it (Crawford V. Stirling, 4 Esp. 209), a question which will be left for the con- sideration of the jury': Payne v. Ives, 3 D. & R. 664 (16 E. C. L. R.); and see v. Layfield, 1 Salk. 292. This subject was much discussed in the case of Brettel v. Williams, 4 Exch. 623, there one of a firm of railway contractors, without the consent or knowledge of his copartners, signed in the name of the firm a guarantee for payment of coals to be supplied to Messrs. Unit & Brothers, who had entered into a subcontract with the firm. It was held by the Court of Exchequer that the guarantee was not binding on the firm. " It was contended for the plaintiflfs," said Parke, B., " that though one partner could not bind another by a guarantee for collateral purposes, he had that power where the guar- antee was connected with the partnership business, and a reason- SANDILANDS v. MARSH. 407 able mode of giving effect to a transaction within the scope of the partnership dealings ; and he relied on the case of Ex parte Gardom, 15 Ves. 286. That pne of two partners engaged in business as merchants had not by reason of that connection alone, power to bind the other by a guarantee apparently unconnected with the partnership trade, was decided by Lord EUenborough in the case of Duncan v. Lowndes, 3 Oampb. 478 ; and the Court of Queen's Bench gave a similar decision in that of Haslehani v. Young, 5 Q. B. 823 (48 E. C. L. R.), where the defendants were in partnership as attorneys. No proof was given in either of these cases of the previous course of dealing or practice of the partners, which it is admitted in both cases, might be sufficient to prove a mutual au- thority ; nor was any evidence given of the usage of similar partner- ships to give such guarantees ; nor was there any of a recognition and adoption by the other partners, which would have the same effect. The case of Sandilands v. Marsh, 2 B. & Aid. 673, pro- ceeded on the latter ground. In the present case no evidence was given to show the usage of the defendants in this particular busi- ness, or of others in a similar business, nor was there any evidence of the sanction by the other defendants of the act of their co- partner .... Simply as railway contractors they could not have any such power. The only question then is, whether they had it in this particular case, in consequence of its being a reasonable mode of carrying into effect an acknowledged *partnership contract, r^qrin We think that position cannot be maintained. One partner does communicate to the other, simply by the creation of that re- lation and as incident thereto, all the authority necessary to carry on their partnership in its ordinary course (see Hawtayne v. Bourne, 7 Mees. & W. 595), and all such authority as is usually ex- ercised by partners in the same sort of trade, but no more. To allow one partner to bind another by contracts out of the apparent scope of the partnership dealings, because they were reasonable acts towards effecting the partnership purposes, would be attended with great danger. Could one of the defendants in this case have bound the others by a contract to lease or buy lands, or a coal mine, though it might be a reasonable mode of effecting a legitimate object of the partnership business ? Our opinion is that one partner cannot bind the others in such a case, simply by virtue of the partnership relation . In the case of Ex parte Gardom, this point was not fully discussed, 408 SANDILANDS v. MARSH. but given up by Sir S. Romilly, wbo had two other objections to the guarantee on which he could rely, and on one of which he suc- ceeded. Besides, we are not suflSciently informed by the report, whether there might not have been some peculiar circumstances in the case which caused the abandonment of that point." And see Ex parte Chippendale, 4 De Gt., M. & G. 19. It has been before shown when an individual p&rtner can bind the firm by such contracts as loans, purchases, sales, pledges, bills of exchange, and promissory notes. The implied power, however, of a partner is much more extensive, for in the words of -Lord Tenterden- in the principal case, " the act and assurance of one partner, made with reference to business transacted by the firm, will bind all the partners." Hence an acknowledgment (Hodenpyl v. Vingerhoede, Chitt. Bills, 381, n. 7th ed. ; Gray i). Palmers, 1 Esp. 135); account rendered by (Ferguson v. Fyfie, 8 CI. & Fin. 121), or the admission of one partner with reference to the transactions of the firm, will be evidence against the firm .(Wood «. Braddick, 1 Taunt. 104; Pritch- ard V. Draper, 1 Russ. & My. 199 ; Cheap v. Cramond, 4 B. & Aid. 668 (6 B. C. L. R.)), although it may not necessarily be conclusive (Wickham v. Wickham, 2 K. & J. 491). So a promise by one part- ner to pay a debt as a partnership debt will be considered as a pro- mise by the firm : Lacy v. M'Neil, 4 D. & R. 7 (16 E. C. L. R.). Upon the same principle it has been held that one partner had power to bind the firm by his assent to the transfer of their account, with a balance due from them by their former to a new hanker: Beale v. Chaddick, 2 Hurlst. & N. 326. A tender to one partner of a debt due to the firm is equivalent to a tender to all the partners, and a tender by one of the firm is the same as a tender by all : Douglas v. Patrick, 3 Term Rep. 682 ; Peirse v. Bowles, 1 Stark. 323 (11 E. C. L. R.), ^ *Part payment of principal or interest by one of several -I partners or co-contractors was formerly considered as made by him as agent for all the other partners and co-contractors, and ope- rating as a new promise to pay, was a good answer against the plea of the Statute of Limitations. See Whiitcomb v. Whiting, Doug. 651; Wyatt v. Hodson, 8 Bing. 309 (21 E. C. L. R.); Burleigh v. Stott, 8 B. & C. 36 (15 E. C. L. B.) ; 2 M. & R. 93 (17 E. C. L. R.). The law, however, has been recently altered by the Mercantile Law Amendment Act, 1856 (19 &20 Vict. c. 97), which enacts that "in &ANIHLANDS v. MAKSH. 409 reference to the provisions of the Acts of 21 James I. c. 16, s. 3, and of the Act of the 3 & 4 Will. IV. c. 42, s. 8, and of the Act of 16 & 17 Vict. c. 113, s. 20, when there shall be two or more co- contractors or co-debtors, whether bound or liable jointly only or jointly and severally, or executors or administrators of any con- tractor, no such co-contractor, or co-debtor, executor, or adminis- trator, shall lose the benefit of the said enactments or any of them, so as to be chargeable in respect or by reason only of payment of any principal, interest, or other money, by any other or others of such co-contractors or co-debtors, executors or administrators." Sect. 14. Sir R. T. Kindersley, V.-C, in Thompson v. Waithman, 3 Drew. 628, held that this section of the Act was retrospective, so that although the right of action had accrued in consequence of a payment made by a co-contractor before the passing of the Act, yet inasmuch as its operation was retrospective, the other co- contractors could take advantage of the Statute of Limitations. This construc- tion of the Act was followed by the Court of Queen's Bench in Jackson v. Woolley, 8 E. & B. 778 (92 E. 0. L. R.), but that case was afterwards reversed on appeal by the Court of Exchequer Chamber, Id. 784, where it was held that the 14th section of the Mercantile Law Amendment Act, 1856, did not apply to the case of a payment made before the Act. And see Flood v. Patterson, 29 Beav. 295; Cockrill v. Sparkes, 1 Hurlst. & C. 699. It seems moreover to be doubtful whether a co-partner is an agent duly authorized under the 13th section of the Mercantile Law Amendment Act, 1856, to make an acknowledgment Or promise in writing, so as to keep alive a debt barred by 9 Geo. IV. c. 14 : Dix. Part. 33. Even before this statute, the acts of surviving partners of a firm had not the efiFect of keeping a debt alive against the representatives of a deceased partner. See Atkins v. Tredgold, 2 B. & C. 23 (9 E. C. L. R.) ; Slater v. Lawson, 1 B. & Ad. 396 (20 E. C. L. R.) ; Ault V. Goodrich, 4 Russ. 430 ; Way v. Bassett, 5 Hare 55, 67. A partner has not an implied authority to bind the firm by a sub- mission to arbitration. This was clearly laid down in Stead v. Salt, 10 Moore 389, 3Bing. 101 (11 E. C. L. R.), where the partnership was not general, but only in dealings to which the award referred. It has how- ever been followed in the case of general partnership. Thus, in Adams V. *Bankart, 1 C, M. & R. 681, where the submission to r+ggo arbitration was made by one only of three general partners, 410 SANDILANDS v. MAESH. it was held by the Court of Exchequer not to be binding on the firm. " The authority," said Parke, B., "to bind a partner to sub- mit to arbitration does not flow from the relation of partnership, and where it is relied upon, it must, like every other authority, be proved either by express evidence, or by such circumstances as lead to the presumption of such an authority having been conferred. The case of Stead v. Salt shows that the relation of partnership does not communicate any such power as that which has been con- tended for." See also Boyd v. Ilmmerson, 2 Ad. & E. 184(29 E. C. L. R.); Antram v. Chase, 15 East 209 ; Goddardw. Ingram, 3 Q. B. 839(43 E. ,C. L. R.); Gale& Dav. 46; Hatton v. Royle, 3 Hurlst. & N. 500. A partner, however, who has entered into a submission to an award, will himself, on the refusal of his partner to be bound by it, be liable to an action for damages : Strangford v. Green, 2 Mod. 228. Upon the same principle one partner has no implied authority to consent to an order for a judgment in an action against himself and his co-partner : Hambidge v. De La Croupe, 3 C. B. 742 (54 E. C. L. R.). Or by giving a cognovit to pay the debt and costs : Rath- bone V. Drakeford, 4 M. & P. 57. The partnership will not be bound by any contract entered into by one of the partners if it be not in the name of the partnership, even although it may have derived a profit thereby. Thus, if one of two or more partners signs a promissory note (Siffkin v. Walker, 2 Campb. 308), draws (Emly v. Lye, 15 East 7) or accepts (Kirk v. Blurton, 9 M. & W. 284) a bill of exchange, executes a warrant of attorney (Bevan v. Lewis, 1 Sim. 376) or borrows a sum (Loyd v. Freshfield, 2 C. & P. 325 (12 E. C. L. R.)) in his own name only, the firm will not be liable even although the money arising from such transactions be applied by the partner who procured it for the benefit of the firm. See also Ex parte Hunter, 1 Atk. 223 ; Ex parte Emly, 1 Biose 61; Smith v. Craven, 1 C. & J. 500; Wilson V. Whitehead, 10 Mees. & W. 503; see and consider Ex parte Raleigh, 3 Mont. & A. 670; 3 Deac. 160; Bishop v. Countess of Jersey, 2 Drew. 143. But if a member of a firm purchases goods in which the firm usually deals, and afterwards applies them to its use, a presumption may arise that he was dealing on behalf of the firm, although such presumption may not have arisen had he borrowed money and ap- plied it to the use of the firm. See Ex parte Emly, 1 Rose 61 ; SANDILANDS v. MARSH. 411 CoUey V. Smith, 2 M. & Rob. 96; Gouthwaite w. Duckworth, 12 East 421 ; Bottomley v. Nuttall, 5 C. B. K S. 122 (94 E. C. L. R.). This last class of cases must not be confounded with another at first sight somewhat similar, where the contract is in reality entered into by the partnership, though a security is given only by one of the *partners, for in such case the partnership (at all events r+onn where it has derived benefit from the contract), though not liable upon the security, may be liable under their general contract. See Ex parte Brown, 1 Atk. 225 oited ; Ex parte Bonbonus, 8 Ves. 542 ; Denton v. Rodie, 3 Oampb. 493 ; Ex parte Bolitho, Buck 100 ; Robinson v. Gleadow, 2 Ring. N. C. 156 (29 E. C. L. R.) ; Browne v. Gibbins, 5 Bro. P. C. 491 ; South Carolina Bank V. Case, 8 B. & C. 427 (15 E. C. L. R.) ; Loyd ?;.' Freshfield, 2 C. & P. 325 (12 E. C. L. R.) ; Beckham v. Drake, 9 M. & W. 79 ; 11 M. & W. 315. No contract, however, of one of the partners will bind the firm' if it be wholly unconnected with the partnership business. Thus, in Ex parte Agace, 2 Cox 312, one of two partners took an assignment of a bond to the firm in consideration of five acceptances signed by him for the firm. The assignor had been falsely informed by the partner who signed the acceptances, that the other partner was ac- quainted with the transaction and that it was with his consent, whereas he was a total stranger to it ; and when he found it out, immediately expressed his disapprobation in the strongest terms, and insisted upon an immediate dissolution of the partnership. It was held by Lords Commissioners Eyre and Ashurst, upon the bank- ruptcy of the partners, that the bills could not be proved against the firm. "In partnership," said Eyre, L. C, "both parties are authorized to treat for each other in everything that concerns or properly belongs to the joint trade, and will bind each other in transactions with every one who Is not distinctly informed of any .particular circumstances which may vary the case. On the other harid, if the transaction has no apparent relation to the partnership, then the presumption is the other way, and the partnership will not be bound by the acts of one of the partners without special circum- stances." See also Armitage v. Winterbottom, !J. Man. & Gr. 130 (39 E. C. L. R.) ; 1 Scott N. R. 23. The firm will not be bound by any securities obtained fraudu- lently from one of the partners by the person claiming against 412 SANDILANDS v. MARSH. them. Thus if negotiable instruments, such as bills of exchange or promissory notes, be given by one of the firm in its name, and fraud or collusion can in any way be shown, as for instance where the transaction indicates that the money was for the individual part- ner's own use, and was not raised on the partnership account, the partnership will not be bound by such securities : Arden v. Sharpe, 2 Esp. 624 ; Hope v. Oust, 1 East 53, cited ; Shirreff v. Wilks, Id. 48 ; Green v. Deakin, 2 Stark. 347 (8 E. C. L. R.) ; Jones v. Yates, 9 B. & C. 532 (17 E. . C. L, R.) ; Snaith v. Burridge, 4 Taunt. 684 ; Ex parte Goulding, 2 Glyn. & J. 118 ; Ex parte Thorpe, 3 Mont. & A. 716. And if one of the partners in the name of the firm gives a pro- missory no;te, or accepts a bill for his own separate debt, the pre- sumption arises that the creditor knew that the transaction was *3041 f''*^*^'*l6°*> ^? being without the *authority of the firm : Shirreff v. Wilks, 1 East 53 ; Richmond v. Heapy, 1 Stark. 202 (2 E. C. L. R.) ; Green v. Deakin, 2 Stark. 348 (3 E. C. L. R.) ; Barber i;. Backhouse, Peake 61 ; Wallace v. Kelsall, 7 M. & W. 264 ; Jones v. Yates, 9 B. & C. 532 (17 E. C. L. R.) ; Jacaud V. French, 12 East 317; Gordon v. Ellis, 7 M. & G. 607 (49 E. C. L. R.) ; Leverson v. Lane, 13 C. B. N. S. 278 (106 E. C. L. R.), and the remarks therein on Ridley v. Taylor, 13 East 175 ; Ellston V. Deacon, 2 Law Rep. C. B. 20. Nor will such securities bind the partnership, even in the hands of an endorsee, unless he can prove that he gave a valuable consideration for them : Heath v, Sansom, 2 B. & Ad. 291 (22 E. 0. L. R.). And see Hogg v. Skeen, 18 0. B. N. S. 426 (114 E. C. L. R.), and the remarks therein on Musgrave v. Drake, 5 Q. B. 185 (48 E. 0. L. R.) ; Dav. & Mer. 347. An endorsee for value, however, who obtained them without fraud (Wintle v. Crowther, 1 0. & J. 316 ; Ex parte Bushell, 3 Mont., D. & De G. 615 ; May v. Chapman, 16 M. & W. 355) or . without knowing that they had been fraudulently obtained (SwaA v. Steele, 7 East 210 ; Lacy v. Woolcott, 2 D. & R. 458), might en- force them against the partnership. Every partner has an implied power as agent of the firm to re- ceive payment of debts due to the firm (Anon. 12 Mod. 446), and such payments even after the dissolution will discharge the debtor (Duff V. The East India Company, 15 Ves. 148 ; Brasier v. Hud- SANDILANDS v. MAKSH. 413 son, 9 Sim. 1), unless there has been an assignment of the debts to another partner, and the debtors have notice thereof (Duff v. The East India Company, 15 Ves. 213), or unless there has been an orde* of a court of competent jurisdiction to pay a sum to another partner : Showier v. Stoakes, 2 Dowl. & L. 3. Upon the same principle one partner has power ordinarily to bind the firm by his receipt for debts (Henderson v. Wild, 2 Campb. 561), unless it be given in fraud of his copartners, in which case they will still be able to recover notwithstanding the receipt : Farrar v. Hutchinson, 9 Ad. k E. 641 (36 E. C. L. B.) ; Henderson v. Wild, 2 Campb. 561. On the receipt of money by a partner to be employed for any purpose of the firm, if it be part of their business tp receive money for such purpose, they will be bound thereby, although the partner who.received the money should misappropriate it. Thus, if one of a firm of attorneys receive a sum of money from a client for the purpose of its being invested on a particular security, the other partners are liable to account for it, such a transaction coming within the ordinary business of g-n attorney : Harman v. Johnson, 2 E. & B. 61 (75 E. C, L. R.); Blair v. Bromley, 5 Hare 542 ; 2 Ph. 354 ; Sims v. Brutton, 5 Exch. 802 ; and see Willett v. Chambers, 2 Cowp. 814 ; Bawkshaw v. Parkins, 2 Swanst. 539 ; Henderson v. Wild, 2 Campb, 561. The receipt, however, of money by one of a firm of attorneys from a client professedly on behalf of the firm, for the general purpose of *investing it, as soon as he can meet with a good security, is r+onr not an act within the scope of the ordinary business of an attorney, so as without further proof of authority from his partners to render them liable to account for the money so deposited ; such a transaction being part of the business of a scrivener, and attor- neys as such not necessarily being scriveners: Harman v. Johnson, 2 E. & B. 61 (75 E. C. L. R.) ; Bourdillon v. Roche, 6 W. R. 918. Where, however, one of a firm of solicitors received from a client a sum of money, for which a receipt was given in the name of the firm, stating that part of the money was in payment of certain costs due to the firm, and that the residue was to make arrangements with the client's creditors, and the solicitor misappropriatied the money, it was held that the transaction with the client was within the scope of the partnership business, and that the partners in the firm were jointly and severally liable to make good the amount : Atkinson v. 414 SANDILANDS v. MAKSH. Mackreth, 2 Law Eep. Eq. 570. See also St. Aubjn v. Smart, 5 Law Rep. Eq. (V.-C. M.) 183; 16 W. R. (V.-C. M.) 394. Although it is clear from all the cases upon this subject, that 'it lies' upon a separate creditor who has taken a partnership security for the payment of his debt, if it be taken simpUciter, and there is nothing more in -the case, to prove that it was given with the con- sent of the other partners ; yet if tHere be circumstances to show a reasonable ground of belief that it was given with the consent of the partnership, it will lie upon the partners to prove the fraud. See Frankland v. M'Gusty, 1 Knapp. Priv. C. C. 274, 301, 302 ; Ridley v. Taylor, 13 East 178 ; Ex parte Kirby, Buck. 511 ; Lever- son v. Lane, 13 0. B. N. S. 283, 285 (106 E. C. L. R.). Where money is advanced to an individual partner in the ordinary course of commercial transactions, as upon the discount of a bill of exchange signed by him in the name of the firm, the mere know- ledge of the creditor that the money advanced has been carried to the account of the individual partner, will not of itself be sufficient to rebut the liability of the partnership : Ex parte Bonbonus, 8 Ves. 540 ; 2 Hov. Supp. 132. Although primd facie the partnership will not be bound by a secu- rity given by an individual partner for his own purposes, as to secure an antecedent debt, it will nevertheless be bound if it can be shown that he had the previous authority of the firm or their subsequent approbation — (a strong case of subsequent approbation, raising an inference of previous positive authority) : Ex parte Bonbonus, 8 Ves. 540, 543, 544. As a general rule in the course of proceedings at law or in equity the act or admission of one partner, and likewise notice to one part- ner, is binding upon the firm. For instance, one partner agreeing to stay proceedings (Ilarwood v. Edwards, Gow. Partn. 65), or en- tering an appearance (Harrison v. Jackson, 7 Term Rep. 207), may bind the rest. Again, notice by one partner, in legal proceedings (Mayhew v. Eames, 1 0. & P. 550 (12 E. C. L.- R.)), or, in *3061 **^® ^^^^ °^ ^'^ insurance of a cargo, of abandonment (Hunt V. Royal Exchange Assurance Company, 5 M. & S. 47), will be sufficient. So although in an ordinary case one of two or more joint lessors not in trade cannot give a valid notice to quit (Goodtitle v. Wood- ward, 3 B. & Aid. 689 (5 E. C. L. R.)), he can do so if the joint SANDILANDS v. MAKSH. 415 lessors hold the lease as partners in trade : Doe v. Hnlme, 2 M. & R. 433 (17 E. C. L. R.)- Upon the same principle a firm -will be bound by the frauds com- mitted upon innocent parties by one of the partners in matters con- nected with the partnership. For instance, if one of the partners purchases for the partnership goods used in the partnership business, which he, without any collusion on the part of the seller, converts to his own use (Bond v. Gibson, 1 Campb. 185), if he fraudulently negotiates a partnership security which gets into the hands of an endorsee for value without notice of fraud (2 Esp. 525 ; Lacy v. Wolcott, 2 D. & R. 458 (16 E. C. L. R.); Sanderson v. Brooks- bank, 4 0. & P. 286 (19 E. C. L. R.) ; and see Richmond v. Heapy, 1 Stark. 202 (2 E. C. L. R.); Johnson v. Peck, 3 Stark. 66 (8 E. C. L. R.); Jacaud v. French, 12 East 317 ; Sparrow v. Chisman, 9 B. & C. 241 (17 B. 0. L. R.) ; 4 M. & R. 206), converts to his own use moneys of customers lodged with the firm as bankers (Stone V. Marsh, R. & M. 364 (21 E. 0. L. R.); 6 B. & C. 551 (13 E. C. L. R.) ; 8 D. & R. 71 (16 B. C. L. R.) ; Keating v. Marsh, 1 Mont. & A. 582 : 2 01. & Fin. 250 ; and see Hume v. Bolland, R. & M. 371 (21 E. 0. L. R.) ; La Marquise de Ribeyre v. Barclay, 23 Beav. 107), makes a fraudulent statement (Rapp v. Latham, 2 B. & Aid. 795), or fraudulently colludes with the partner of an- other firm (Longman v. Pole, 1 M. & M. 222 (22 E. C. L. R.) ; Danson & Lloyd, 126), his own firm will be liable. See also Brydges V. Branfill, 12 Sim. 369. Where, however, a firm is liable for the fraud of an individual part- ner, it must have been committed in a matter within the scope of the partnership business : Bishop v. Countess of Jersey, 2 Drew. 143. Moreover the firm may be liable for a wron^ (Moreton v. Hardern, 4 B. & C. 223 (10 E. C. L. R.); 6 D. & R. 275 (16 E. C. L. R.); and see NicoU v. Glennie, 1 M. & S. 588), personal negligence (Ashworth V. Stanwix, 30 L. J. Q. B. 183 ; 7 Jur. N. S. 467; Mel- lors V. Shaw, 1 B. & S. 437), or breach of the revenue laws (The Attorney-General v. Stannyforth, Bunb. 97 ; Attorney- Gen oral v. Burges, Bun. 223 ; Edmonson v. Davis, 4 Esp. 14 ; King v. Man- ning, Com. Rep. 616), committed by one of their co-partners« And in some cases not only civilly but criminally: Rex v. Almon, 5 Burr. 2686; Rex v. Pearce, 1 Peake 75; Rex v. Topham, 4 Term Rep. 126. 416 SANDILANDS v. MAESH. In bankruptcy it is sufficient if one partner sign the petition for adjudication (21 Rules and Orders of 19th of Octdber, 1852), or the demand and notice in a trader debtor summons (68 Id.) on behalf of the firm. So one partner may prove a debt, or sign a letter of at- torney authorizing another to represent the firm in the bankruptcy *^07n *^^^ P*^*® Mitchell, 14 Ves. 597 ; Ex parte Hodgkinson, 19 Ves. 291-298). • And it has been recently held that a power of attorney to vote at a choice of assignees by one partner in a firm, may be revoked by a subsequent power executed by another part- ner: Re Debbs, 15 L. T. (Bkcy.) 53. As a general rule a partner, unless under an express power by deed (Horsley v. Rush, 7 Term Rep. 209, cited; Appleton v. Binks, 5 East 148; Berkeley v. Hardy, 8 D. & R. 102 (16 E. C. L. R.)), cannot bind the partnership by a deed. Thus, in Harrison v. Jack- son, 7 Term Rep. 207, where a person signed a deed purporting it to be executed for himself and his partners, the Court of Queen's Bench held that the execution of the deed was not binding on the partners who had not signed it. " The law of merchants," said Lord Kenyon, 0. J., "is part of the law bf the land; and in mer- cantile transactions, in drawing and accepting bills of exchange, it never was doubted but that one partner might bind the rest. But the power of binding each other by deed is now for the first time insisted on, except in the Nisi Prius case of Mears v. Serocold, cited, the facts of which are not sufficiently disclosed to enable me to judge of its propriety. . . . This would be a most alarming doc- trine to hold out to the mercantile world. If one partner could bind the others by such a deed as the present, it would extend to the case of mortgages, and wou^d enable a partner to give to a favorite creditor a real lien on the estates of the other partners." See also Hall v. Bainbridge, 1 M. & G. 42 (39 E. C. L. R.). A general partnership agreement, though under seal, does not authorize the partners .to execute deeds for each other, unless a particular power be given for that purpose : per Lord Kenyon, C. J., in Harrison v. Jackson, 7 Term Rep. 210. The subsequent acknowledgement by one partner that he has given another partner power to execute a deed, will not, where the power is not given by deed, be sufficient to bind the partner who did not execute the deed (Steiglitz v. Egginton, Holt N. P. C. 141 (3 E. C. L. R.); Brutton v. Burton, 1 Chit. 707 (18 E. C. L. R.)), SA^DILANDS v. MAKSH. 417 although it will bind the partner who did so : Elliot v Davis, 2 Bos. & Pul. 338. Where, however, a person executes a deed (Ball v. Dunsterville, 4 Term Rep. 313 ; and see Lord Lovelace's Case, Sir W. Jones 268) or bond (Burn v. Burn, 3 Ves. 573; 1 Hov. Supp. 410; Orr v. Chase, 1 Meriv. 729) for himself and his partners in the presence of the latter and by their authority, although there be but one seal, all will be bound. See and consider Smith v. Winter, 4 Mees. & W. 454. It seems moreover that, although as a general rule one partner cannot by deed bind the firm except under an express power by deed, the rule must be confined to those cases where the deed ope- rates by way of grant, for where it operates by way of release, it will, in the absence of fraud and collusion (Aspinall v. The London and Nortlr*Western Railway Company, 11 Hare 325), be binding on the firm. See 2 Roll. Abr. 410, D ; Perry v. •- Jackson, 4 Term Rep.'519; Hawkshaw v. Parkins, 2 Swanst. 539, 544 ; Furnival v. Weston, 7 Moore 356 (17 E. C. L. R.). These cases appear to proceed upon the principle that "where a person has re- ceived satisfaction for a joint demand, due to himself and others, which puts an end to such joint demand, he cannot afterwards, by joining the other parties with him as plaintifi's, recover that debt:" Wallace v. Kelsall, 7 Mees. & W. 264, 274. A covenant, however,. by one partner not to'sue for any debt due to him, cannot be pleaded as a release in bar of an action by the two partners for a debt due to them jointly : Walmesley v. Cooper, 11 Ad. & E. 216 (39 E. C. L. R.). "If one of several partners assents to a deed executed by a debtor in favor of his creditors, the firm is bound by the deed, and the doctrine that one partner has no implied authority to bind his copartners by an instrument under seal, has no application to such a case :" 1 Lindley on Partnership 280, citing Morans v. Armstrong, Arms., M'Art. & Ogle Ir. N. P. 25; Dudgeon v.O'Connell, 12 Ir. Eq. 566. Although a deed executed by one partner will not bind the firm, by taking ^fi"ect as the deed of the firm, nevertheless where the transaction itself is one within the authority of the partner, the circumstance of a deed being executed will not invalidate the con- tract: Ex parte Bosanquet, 1 De Gex 432, 439; and see Hunter v.. Parker, 7 Mees. & W. 322. - • 27 418 SAND.TLANDS v. MAE8H. A warrant of attorney under seal, executed by one person for himself and his partner, in the absence of the latter, but with his consent, is a sufficient authority for signing judgment against both : Brutton v. Burton, 1 Chit. 707 (18 E. C. L. R.). This, however, appears tp proceed upon the principle that a warrant of attorney need not be under seal, and that therefore a parol authority to exe- cute it is sufficient. See Kinnersley v. Mussen, 5 Taunt. 264 (1 E. C. L. E,.). Where a member of a firm which is under a continuing contract retires with an indemnity, the continuing partners are his agents for carrying on the contract, and although after notice of the re- tirement the retiring partner is in a sense a surety, he will not be discharged from the contract by reason of acts of the continuing partners fairly within the scope of their authority in carrying out the contract. See Oakford v. The European and American Steam Shipping Company, 1 Hem. & Mill. 182. There, continuing part- ners under such a contract which gave, amongst other things, their firm the power of appointing an arbitrator in. case of dispute, entered into an agreement by which they waived a very doubtful point of construction on the original contract, and referred differ- ences to arbitrators, one of whom was selected by themselves in- stead of by the firm as constituted at the date of the contract. It was *held by Sir W. Page Wood, Y.-C, that this "was not -^ such a variation of the original contract as to discharge the retired partner." It may be here mentioned that the promoters of companies are not, as such, partners, and they will not therefore, in the absence of authority either general or special (Collingwood v. Berkeley, 15 C. B. N. S. 145 (109 E. C. L. R.)) be liable for each other's acts: Reynel v. Lewis, Wyld v. Hopkins, 15 M. & W. 517. Allottees moreover of an unformed company are not, simply as such, liable for the acts of their managers : Bourne v. Freeth, 9 B. & C. 632 (17 E. C. L. R.); Dickinson v. Valpy, 10 B. & C. 128 (21 E. C. L. R.); Fox V. Clifton, 6 Ring. 776 (19 E. C. L. R.); 9 Ring. 115 (23 E. C. L. R.). The authority of partners to bind each other is not determined by the articles of co-partnership, but by the character of their dealings, and the manner in which they hold themselves out to the world : Cattin v. Gril- SANDILANDS v. MAESH. 419 ders, 3 Alab. 536; Sauffey v. Howard, 7 Dana 367; Frost v. Harford, 1 E. D. Smith 540; Gray v. "Ward, 18 Illinois 32; Saltmarsh v. Bower, 34 Alab. 613; Stockwell v. Dillingham, 50 Maine 442; Welles v. March, 30 N. Y. 344; Barker v. Mann, 4 Bush 672. One partner has a right to bind the firm in contracts for the use of the partnership : Manufacturers and Me- chanics' Bank v. Gore, 15 Mass. 75; Boardman v. Gore, Id. 331 ; Galloway V. Hughes, 1 Bailey 553; Winship v. Bank of United States, 5 Peters 529; Storve v. Hinckley, Kirby 147. The contract to be binding on the firm must be within the scope of the partnership business : Long v. Carter, 3 Ired. 238 ; Barnard v. Lapue, 6 Michigan 274 ; Scott v. Bandy, 2 Head 197; Venable d. Levick, Id. 351; Hotchir v. Kent, 8 Michigan 526; Boardman v. Adams, 5 Clark 224. One partner cannot bind his copartner by a bargain made without his consent or knowledge, if the thing to be done be out of the usual course of the partnership business, unless there be evidence of a special usage in relation to such bargains made by such parties: Nichols v. Hughes, 2 Bailey 109; Waller v. Keys, 6 Verm. 257; Wagner v. Clay, 1 A. K. Marsh. 257. Although the engagement of an individual member of a firm may not be within the scope of the partner- ship dealings, yet if the transaction come within the knowledge of his co- partners, and is assented to by them, then it will be binding upon them all: McNeil v. Reynolds, 9 Ala. 313. Where one of the members of a partnership for a particular business does an act on account of the firm, jorimd facie not within the scope of his authority, evidence is admissible to show, that, in the exercise of good faith and reasonable discretion he was justified in so doing, by the course pursued by the firm in the manage- ment of their business, and that so the other partners were responsible for his act: Woodward v. Winship, 12 Pick. 430; Miller v. Hines, 15 Geo. 197; Pant V. West, 10 Richardson (Law) 149. If one of the partners of a firm has been in the habit of endorsing the name of the firm on bills of exchange, it is a fact from which the jury may legally infer that he had authority from the other partner so to do : Bank v. Brooking, 2 Litt. 41. A partner in the practice of the medical profession, has no power to bind his copartner by a note in the name of the firm for the purpose of raising money for his own ac- commodation : Crosthwait v. Ross, 1 Humph. 23. A promissory note given by one of two partners in the business of farming and coopering, signed A B. & C. D., is binding on both : McGregor v. Cleveland, 5 Wend. 475. Ordi- narily, a partner in a firm created for the purpose of carrying on a farm, will not have the power to bind his copartners by a bill of exchange given with- out their consent: Kimbro «.• Bullitt, 22 Howard (S. C.) 256. The im- plied authority of one partner to bind his copartner by contract, may be revoked by the refusal of the latter to be thus bound, communicated to the party in whose favor the contract is to be made: Leavitt v. Peck, 3 Conn. 420 SANDILANDS v. MAKSH. 124; Feigley v. Sponeberger, 5 W. & S. 564; Yeager v. Wallace, 7 P. P. Smith 365. A note made by one partner, in the name of the firm, will be presumed to have been made in the course of the partnership business : Doty v. Bates, 11 Johns. 544; Barrett v. Swann, 5 Shepl. 180; Ensinger v. Marvin, 5 Blackf 210; Knapp u McBride,7 Ala. 19; Turston v. Lloyd, 4 Maryland 283; Hogg v. OrgiU, 10 Casey, 344. The presumption is that contracts made by a partner are made on account of the partnership, and the firm will be bound thereby, unless the party with whom he contracts knows the contrary: Le Koy v. Johnson, 9 Peters 198; Kochester v. Trotter, 1 A. K. Marsh. 54. An acting" partner may, for the benefit of his firm, and in order to raise money, use the name of the firm by accepting a bill of exchange, to be exchanged for the acceptance of another firm: G-ano V. Samuel, 14 Ohio 592. Where money is borrowed by one partner in the name of the firm, the partnership is liable, though the money is appropriated to the use of the partner borrowing: Church v. Sparrow, 5 Wend. 223 ; Onondaga Bank v. De Puy, 17 Id. 47 ; Steel v. Jennings, Cheves 183; Bascom v. Young, 7 Missouri 1. The rule that a partnership is liable for money borrowed by one of its members on the credit of the firm, within the general scope of its authority and according to the usual course of its business, applies as well to partnerships formed for mechanical or manufacturing purposes, as to commercial partnerships : Hoskinson v. Eliot, 12 P. F. Smith 393-. If a partner purchase goods in the name of the firm, although he applies them to his individual use, the partnership is liable for the price to the vendor : Dickson v. Alexander, 7 Ired. 4. All the members of a firm are liable for goods purchased by one for the use of the firm, although the existence of the partnership was not known to the ven- dor at the time of the sale: Given «. Albert, 5 W. & S. 333; Bisel v Hobbs, 6 Blackford 479; Baxter v. Clark, 4 Ired. 127; Reynolds v. Cleveland, 4 Cowen 282. A note given by a partner in the name of the firm for money received by him individually, is not binding on the other members of the firm, unless the money was applied for partnership purposes and with their knowledge: Whitaker v. Brown, 16 Wend. 505. If one part- ner borrows money on his own credit and gives his note for the amount, the firm is not liable, though the money be used in the partnership trans- actions: Willis V. Hill, 2 Dev. & Bat. 231; Graeff z). Hitchman, 5 Watts 454; Jaques v. Marquand, 6 Cowen 497; Holmes v. Burton, 9 Verm. 252. If a partner borrow a sum of money on his own security only, it does not become a partnership debt, although . applied to partnership purposes. The presumption in such cases is that_ it is a part of the capital fund, con- tributed by the individual partner : Logan v. Bond, 13 Georgia 192. A .note given in the individual name of one partner is primd /acie deemed 8ANDILANDS v. MAKSH. 421 his individual obligation, unless his partner be a dormant partner : Scott v. Cdmesnil, 7 J. J. Marsh. 416 ; Farmers' Bank v. Bayless, 35 Missouri 428. A partnership is liable for lumber purchased by and charged to one of the partners, where it was purchased for partnership purposes : Braches v. Anderson, 14 Missouri 441. One co-partner may bind the firm by a bill of exchange drawn by him in his own name upon the firm for a partnership debt: Dougal v. Cowles, 5 Day 511. To render a firm responsible for a note given by one member thereof in his own name, it must appear that the credit was given to the firm, and that the money ob- tained by the note went to the business of the firm, otherwise it will be treated as an election by the cre'ditor to trust to the responsibility of the maker of the note alone : Foster v Hall, 4 Humph. 346 ; Staats v. Hew- lett, 4 Denio 559 ; In re Warren, Davies S20 ; Orozier v. Kirker, 4 Texas 252; Bacon «.' Hutchings, 5 Bush' 595. A note in common form, signed by an individual in whose name a partnership is carried on and who at the same time openly transacts business on his own account, does not, primd facie, bind his copartners: Manuf. & Mech. Bank v. Winship, 5 Pick. 11 ; United States Bank v. Binney, 5 Mason 176; Mifflin v. Smith, 17 S. & K. 165 ; Buckner v. Lee, 8 Georgia 285 ; Mercantile Bank v. Cox 38 Maine 500. Where one of two partners subscribes the partnership name to a note as securities for a third person, without the authority or consent of the other partner, the latter is not bound, and the burden of proving the consent is on the holder of the note : Schermerhorn v. Schermerhorn, 1 Wend. 119 ; Kalston v. Click, 1 Stewart 526 ; Hamill v. Puryiss, 2 Penna. K. 176 ; Sut- ton V. Irwine, 12 S. & R. 13 ; Laverty v. Burr, 1 Wend. 529 ; New York Fire Ins. Co. v. Bennett, 5 Conn. 574; Foot v. SabinJ 19 Johns. 154; Bank v. Bowen, Id. 158; Andrews v. Planters' Bank, 7 Sm. & M. 192 ; Langan v. Hewitt, 13 Id. 122; Sweetsser v. French, 2 Cush. 309; Rollins V. Stevens, 31 Maine 454. An accommodation endorsement, made by one member of a firm, in the firm's name, does not bind the others, unless in the hands of an innocent holder without notice : Whaley v. Moody, 2 Humph 495 ; Bank v. SaflFarans, 3 Id. 597 ; Chenowith v. Chamberlin, 6 B. Monr. 60 ; Bank v. Cameron, 7 Barb. (S. C.) 143 ; Lang v. Waring, 17 Ala. 145; Beach v. The State Bank, 2 Carter 488; Mechanics' Bank V. Livingston, 33 Barbour 458; Hendrie v. Berkowitz, 37 California 113. One partner cannot bind the firm by the guaranty of the debt of a third person without the assent or ratification of the other partner : Mayberry v. Barniton, 2 Barring. 24; -Maudlin v. Branch Bank, 2 Ala. 502; McQuewans v. Hamlin, 11 Casey 517; Selden v. Bank, 3 Minnesota 160. Although it appears that each one of a firm has, with the assent of the other members, repeatedly endorsed accommodation notes in the firm name, 422. SANDILANDS v. MAESH. it is no evidence that either member was authorized to do so without such assent : Early v. Beed, 6 Hill 12. Contrd, : Dundass v. Gallagher, 4 Barr 205.' If a promissory note, endorsed by a partner out of the usual course of business, for the accommodation of a third person, is discounted bond fide and without notice by a bank, the other partners are bound, though they knew nothing of the transaction : Catskill Bank v. State, 15 Wend. 364. A hond, fide holder without notice of an accommodation note en- dorsed with the name of the firm by one of the members without the assent of the others may collect it of the firm : Austin v. Vandermark, 4 Hill 259 ; Maudlin v. Branch Bank, 2 Ala. 502 ; Stall v. Catskill Bank, 18 Wend. 466 ; Wills v. Evans, 20 Id. 251 ; s. c. 22 Id. 324 ; Bank v. Gilliland, 23 Id. 311 ; Emerson v. Harman, 2 Shepl. 271 ; Waldo Bank V. Lumbert, 4 Id. 416 ; Bank v. Saffarans, 3. Humph. 597 ; Abpt v. Miller, 5 ^ones (Law) 32. An endorsement by a partner of his Separate accom- modation note with the name of his firm is a sufficient indication of the nature of the transaction to make it the duty of the bank, which discounts it, to inquire into his authority to use the firm name : Tanner v. Hall, 1 Barr 417; Mecutehen v. Kennedy, 3 Butcher 230. One partner cannot without the consent of his co-partner, appropriate the assets of the firm to the payment of his individual debts, and such appropriation, if made with a knowledge on the part of the person, re- ceiving them, that they are the joint property of the firm, is no bar to an action instituted against him by the partnership : Burwell ■;;. Springfield, 15 Ala. 273; Perry v. :^utt, 14 Geo. 699; Buck v. Mosley, 24 Miss. 170; Jackson v. Holloway, 14 B. Monr. 133 ; Hall v. Mclntyre, 31 Ala. 532 ; McNair v. Piatt, 46 111. 211. One partner cannot release a debt due the firm, even during the partnership, in consideration of a debt due from him individually : Cram v. Cadwell, 5 Cowen 489. One partner has no right to give to his own separate creditor, an order on a debtor of the firm, without the consent of his copartner ; and it matters not that the other partner knew of the order before it was executed, and did not express his dissent to the party, in whose favor it was drawn : McKinney v. Bright, 4 Harris 399. A. and B. being partners in one firm, and A. and C. in another firm, A. gave to B. for his own debt, a note of the firm of A. and C. Held, that C. was not liable : Clay v. Cottrell, 6 Harris 408. Where one part- ner, without the knowledge of his copartner, makes a special contract to . perform labor or sell goods of the partnership, and to take in pay specific articles for his own use, and the contract is executed by the parties who made it, an action cannot be maintained in the name of the firm, to re- cover the value of the goods so sold or labor performed, on the ground that the partner has no authority to make such contract : Greeley v. Wyeth, 10 N. Hamp. 15. Conlrd, : Cadwallader v. Kroesen, 22 Maryl. 200. The 8ANDILANDS v. MAKSH. 423 private debt of a partner cannot be set of by his creditor against a debt due from him to the firm : Pierce v. Pass, 1 Porter 232 ; Pierce v. Hicken- burg, 2 Id. 198; Norment v. Johnson, 10 Ired. 89; Kameyu. McBride, 4 Strob. 12; Bourne v. Wooldridge, 10 B. Monr. 492. Where a person receives a partnership note for the individual debt of a partner, he is chargeable with notice, and cannot enforce payment of the note against the other members of the firm : Gansevoort v. Williams, 14 Wend. 133 ; Foster v. Andrews, 2 Penna. E. 160 ; Huntingdon v. Ly- man, 1 Chipm. 438; Baird v. Cochran, 4 S. & E. 397; Davenport v. Eunlett, 3 N. H. 386 ; Weed v. Eichardson, 2 Dev. & Bat. 535 ; Liv- ingston V. Eoosevelt, 4 Johns. 251 ; New York Fire Insurance Company V. Bennett, 5 Conn. 574; Beckham v. Pray, 2 Bailey 133; Taylor v. Hillyer, 3 Blatch. 433; Dub v. Halsey, 16 Johns. 34; Everingham v. Ernsworth, 7 Wend. 326 ; Brewster v. Mott, 4 Scam. 378 ; Hickman v. Eeineking, 6 Blaekf 388 ; Maudlin v. Branch Bank, 2 Ala. 5U2 ; Miller V. Manier, 6 Hill 115; Stainer v. Tyson, 3 Hill 279; Williams v. Gil- christ, 11 N. Hamp. 535; Smyth v. Strader, 4 Howard (8. C.)404; Elliotts. Dudley, 19 Barb. 326; King «. Faber, 10 Harris 21; Tutt i;. Adams, 24 Miss. 186 ; Hickman v. Koehl, 27 Missouri 401 ; Eobinson v. Aldridge, 34 Miss. 352; Leonard v. Winslow, 2 Grant 139; Porter v. Gunnison, Id. 297; Fletcher v. Anderson, 11 Iowa 228; Bowman v. Cecil Bank, 3 Grant 33. Where a member of a partnership had endorsed his own note with the name of the firm for his own exclusive benefit, without authority from the other copartner, and the endorsee took the note with full knowledge of the facts, it was held that no independent consideration was required to support a subsequent ratification and promise by the other copartner to pay the note : Commercial Bank v. Warren, 15 N. Y. 577. Though the payee of a partnership note believed that the proceeds of the note were to be applied to the individual debts of one of the firm, the note would still be binding on the firm, if the proceeds were in fact used by the firm : Hamilton v. Sumner, 12 B. Monr. 11. If a partner give a negoti- able note, in the name of the firm, for his own private debt, a bond fide endorsee of the note, who had no notice of the purpose for which it was given, may recover the amount of the co-partnership : Monroe V. Cooper, 5 Pick. 412 ; Chazournes v. Edwards, 3 Id. 5 ; Livingston V. Eoosevelt, 4 Johns. 25 ; Babcock v. Stone, 3 M'Lean 172 ; Duncan V. Clark, 2 Eichardson 587; Gildersleeve v. Mahony, 5 Duer 383; Haldeman v. Bank of Middletown, 4 Casey 440; Collins v. Gross, 20 Geo. 1 ; Eich v. Davis, 4 Cal. 22 ; s. 0. 6 Cal. 141 ; Gray v. Ward, 18 111. 32. The rule that a note given by one partner in the firm name for his individual debt is good against the firm in the hands of a bond fide holder applies only to notes of mercantile partnerships, and not to those for keeping taverns : Cocke v. Branch Bank, 3 Ala. 175. 424 SANDILANDS v. MARSH. One partner cannot bind another by a sealed instrument without a special authority or assent and ratification, -which may be implied from circum- stances, or when execiited in his presence : Tremble v. Coons, 2 A. K. Marsh. 375; United States v. Astley, 3 Wash. C. C. 508; Fleming v. Dunbar, 2 Hill (S. C.) 532; Modisett v. Lindley, 2 Blackf. 119; Posey V. Bullitt, 1 Id. 99; Pitchburn v. Boyer, 5 Watts 159; Mackay v. Blood- good, 9 Johns. 285 ; Cady v. Shepherd, 11 Pick. 400 ; Clement v. Brush, 3 Johns. Cas. 180; Gram v. Seaton, 1 Hall 262; Perron v. Carter, 3 Murphy 321 ; Layton v. Hastings, 2 Harring. 147 ; Anon., 1 Taylor 113 ; Doe V. Tupper, 4 Sm. & M. 261 ; Morse v. Bellows, 7 N. H. 549 ; Lucas V. Sanders, 1 McMullen 311; Lee v. Onstott, 1 Pike 206; Montgomery V. Boon, 2 B. Monr. 244 ; McCart v. Lewis, Id. 267 ; Cummings v. Carsily^ 5 Id. 47; Bentrin v. Zierlien, 4 Missouri 417; Turbeville v. Ryan, 1 Humph. 113; Henderson v. Barbee, 6 Blackf. 26; Swan v. Stedman, 4 Mete. 548 ; Pike v. Bacon, 8 Shepl. 280 ; Lee v. Onstoll, 1 Pike 206 ; Day V. Lafferty, 4 Id. 450 ; Dickinson v. Legare, 1 Dessaus. 587 ; Donald- son V. Kendall, 2 Geo. Decis. 227; Napier v. Catron, 2 Humph. 534; Smith V. Kerr, 3 Comst. 144 ; Morris v. Jones, 4 Harring. 428 ; Price v. Alexander, 2 Greene 427; McDonald v. Eggleston, 26 Verm. 154; Snyder V. May, 7 Harris 235; Gwinn v. Rooker, 24 Missouri 290; Grady v. Rob- inson, 28 Ala. 289 ; Henry County v. Gates, 26 Missouri 315 ; Little v. Hasard, 5 Harring. 291 ; Shirley v. Fearne, 33 Miss. 653 ; Frombarger v. Henry, 6 Jones (Law) 548; Lowery v. Drew, 18 Texas 786; Fox v. Norton, 9 Mich. 207 ; Haynes v. Seachrist, 13 Iowa 455 ; Wilson v. Hunter, 14 Wise. 683 ; Dillon v. Brown, 11 Gray 179. One partner may seal a deed of composition, or release of a debt due to the firm : Bruen v. Mar- quand, 17 Johns. 58 ; Smiths. Stone, 4 Gill & Johns. 310 ; Pierson v. Hooker, 3 Johns. 68 ; McBride v. Hagan, 1 Wend. 326 ; Morse v. Bellows, 7 N. H. 549 ; Wells v. Evans, 20 Wend. 251 ; s. o. 22 Wend. 324 ; Beach v. Ollendorf, 1 Hilton 41 ; Yandes v. Lefavour, 2 Blackf. 371. In a suit by a partnership commenced by attachment, a bond given by one of the partners will bind the firm : Wallis v. Wallace, 6 How. (Miss.) 254. One partner may appoint an agent by parol to make and endorse bills, and such power is not void, though given under seal : Lucas v. Bank of Darien, 2 Stew. 280. One partner may execute a charter-party under seal so as to bind the other partner: Straffin u Newell, Charlt. 163. The 'rule that one partner cannot bind his copartner by deed, does not apply when one partner conveys by deed property of the firm which he might have con- veyed without deed: Tapley v. Butterfield, 1 Mete. 515; Anderson v. Tompkins, 1 ' Brock. 456 ; McCullough v. Sommerville, 8 Leigh 415 ; Forkner v. Stuart, 6 Gratt. 197. A partnership contract, which would be good without a seal will still be valid as a simple contract, although the SANDILANDS v. MAKSH. . 425 partner, who executed the instrument, had no special authority to put the ■partnership name to such paper : Haman v. Cuniffe, 32 Missouri 316 ; Schmertz v. Shreeve, 12 P. P. Smith 457. Where a contract under seal was executed for the erection of a dam for a partnership, an object within the scope of its business, it was held that an action lay against the firm upon an implied promise to pay for the work and materials : Van Deusen v. Blum, 18 Pick. 229. One partner cannot bind his copartner individually by a voluntary con- fession of a judgment : Crane v. French, 1 Wend. 311 ; Barlows v. Eeno, 1 Blackf. 252; Bissell v. Carvill, 6 Ala. 503; Bitzer v. Shunk, 1 W. & 8. 340; Sloo v. State Bank, 1 Seam. 428; Overton v. Tozer, 7 Watts 331; Mills V. Dickson, 6 Kichardson 487 ; Kemmington v. Cummings, 5 Wise. 138; Shedd v. Bank, 32 Verm. 709; Christy v. Sherman, 10 Iowa 535; Edwards v. Petzer, 12 Id. 607 ; North v. Mudge, 13 Id. 496. Though one partner cannot confess a judgment against another partner, even for a partnership debt, yet a creditor of the firm cannot make objection to the judgment on that account; and a sale of partnership property on an ex- ecution issuing upon such judgment, will pass a perfect title to the pur- chaser; and if the first lien, it will be entitled to the proceeds of the sale; but the judgment will not affect the persons nor the separate property of the other partners : Grier v. Hood, 1 Casey 430. One partner cannot bind the firm by a submission to arbitration : Carthaus v. Ferrers, 1 Peters S. C. 222; Armstrong v. Robinson, 5 Grill & Johns. 412; Buckoz «. Grand- jean, 1 Manning 367; Wood v. Shepherd, 2 Patton & Heath 442; Jones V. Bailey, '5 California 345; Martin ■;;. Thrasher, 40 Verm. 460. Contrd: if not under seal: Taylor v. Coryell, 12 S. & R. 243; Buchanan v. Curry, 19 Johns. 137; Southard v. Steele, 3 Monr. 435; Hallack v. March, 25 Illinois 48. 426 CEAWSHAY v. MAULE. *310] CRAWSHAY v. MAULE. MAULE V. CRAWSHAY. June 9, 10, 27; July 11, 23, 31, 1818. [Reported 1 Swanst. 495.] Partnership — ^Dissolution op, by different Modes — Effects OF.] — R. C, leing in possession of mines and iron-worJcs held under leased of unequal duration, hy his will bequeathed 25,000?. to B., " as a capital for him to become a partner with my executor of one-fourth share in the trade of all those .works so long as the lease endures," with a devise to H. and his wife of the residue of his estates, real and personal. By a codicil, the testator gave to W. C. three-eighths of the con- cern at the iron-works, " so the partnership will stand at my decease, — W. C. three-eighths, H. three-eighths, B. two- eighths." After the testators death, W. C, H. and C, carried on the works for two years, selling iron manufac- tured not only from the produce of their mines, but from ore and old iron, purchased for the purpose of manufacture and resale. B., having then assigned his share to C, the busi- ness was carried on in like manner by C. and H. till the death of the latter ; no agreement having ever been entered . into for the duration of the partnership. 1. The codicil withdraws the trade from the operation of the residuary clause in the will, and vests three-eighths in H., to the exclusion of his wife. 2. The concern is not a mere joint interest in land, but a part- nership in trade. 3. The purchase of a leasehold interest as part of a stock in CKAWSHAY V. MAULE. 427 trade, is not evidence of an agreement to contract a partner- ship, commensurate with the duration of the lease. 4. The partnership is dissolved hy the death of H. 5. *In a suit instituted hy W. C, praying a sale of the p^-q-i -i partnership property, the court, on motion, directed an inquiry whether it would he for the henefit of all parties inter- ested that the works should he sold or carried on for the pur- pose of winding up the concern. By articles of agreement, dated the 31st of July, 1794, between Anthony Bacon and Richard Crawshay, Bacon agreed to assign to Cratfshay aU his interest in certain lands and mines of coal and iron ore, situate at Cyfarthfa, in the county of Glamorgan (of which he then was in pos- session, under three leases for terms of ninety-nine years each, commencing respectively in the years 1763, 1765 and 1768), subject, after the 29th of September, 1815, to an annual rent of 5000^., and a payment of 15s. a ton on aU pig-iron annually made on the premises beyond 6400 tons. Richard Crawshay accordingly took possession of the pre- mises, and carried on iron-works there ; and in 1801, in- tending an extension of the works and the erection of new furnaces, it was agreed between him and Bacon that the payment of 15s. a ton beyond 6400 tons should cease at 10,700 tons. Disputes having arisen on the subject of that agreement in 1808, Richard Crawshay filed a bUl to com- pel specific performance. The decree pronounced in March, 1810, directed Bacoa to execute to Richard Crawshay an underlease of the premises, for all the terms which he or the trustees under his marriage settlement had therein, ex- cept the last day, subject to the yearly payments stipulated. Richard Crawshay being seised and possessed of a con- siderable real and personal estate, including the iron-works at Cyfarthfa, and the buildings and machinery thereon, and a leasehold wharf at Cardiff, used for shipping iron, by his 428 CEAWSHAY v. MAULE. will, dated the 26th of September, 1809, after giving, among other legacies, 100,000^. to his son William Crawshay, gave to Joseph Bailey 25,000/., " to be transferred from my ac- count in the ledger^to his, intended as a capital for him to become a partner with my executor of one-fourth share in the trade of all those works so long as the lease endures, with the principal and profit therefrom to be his own for ever." He then gave to Benjamiii Hall, Esq., and his wife, of Abercarne, and to their heirs forever, all the residue' of his estate, real and personal^ and appointed Mr. Hall sole executor. By a codicil, dated the 4th of May, 1810, the testator gave to his son William Crawshay, "three-eighth' ^ shares of my concerns at *this iron-work, and of the J premises at Cardiff"; so the partnership will stand at my demise, — William Crawshay, three-eighths ; Benjamin Hall, three-eighths ; Joseph Bailey, two-eighths." The testator died on the 27th of June, 1810; Mr. Hall proved his will, and William Crawshay, Hall and Bailey, took possession of the iron-works, and carried them on as co-partners in the shares bequeathed to them under the firm of Crawshay, Hall and Bailey, but without any articles of co-partnership. In October, 1812, William Crawshay purchased the share of Bailey for 30,000/., and from that time the works were conducted by William Crawshay and Han, tiU the death of the latter, under the firm of Crawshay and Hall ; no written articles of co-partnership were ever executed or prepared between them; but they verbally agreed that the future capital of the concern should be 160,000/^, which consisted of an imaginary or estimated value of the whole of the partnership property (100,000/. standing to the credit of William Crawshay, in respect of his five-eighth parts, and 60,000/., to the credit of Mr. Hall, in respect of his three-eighth parts) ; and that the books should be balanced on the 31st of March in each CKAWSHAY V. MAULE. 429 year, and the annual profits drawn out by William Craw- shay and Hall, in proportion to their shares. No underlease having been executed in the life of Craw- shay, by indenture of the 21st of May, 1814, Bacon and his trustees, in obedience to the decree of 1810, assigned to Hall, his executors, &c., all the premises for the residue of the respective terms, except the last day of each, subject to the annual rent of 5000^., and the payment of 15s. a ton on all pig-iron made yearly on the premises above 6400 tons, and not exceeding 10,700 tons ; and by a deed dated the 1st of June, 1814, and endorsed on the assignment, HaU declared that he would stand possessed of the pre- mises, as to three-eighth parts, in trust for himself, and as to five-eighth parts, in trust for William Crawshay ; and Hall and William Crawshay entered into covenants for pay- ment of their respective proportions of rent, and for mutual indemnity. By indenture, dated the 23d of May, 1814, Bacon, in con- sideration of 32,500/., paid, — three-eighths by Hall and five- eighths by William Crawshay — assigned to Joseph Kaye, his executors, &c., in trust for Hall and Crawshay, in pro- portion of three-eighths to the former and five-eighths to the latter, the rent of 155. per ton on iron, then due or to become due. By another indenture of the same date, Bacon, in consideration *of 62,500/., assigned to Kaye, in p^q-i n trust for William Crawshay, his reversionary inter- est in the premises, and the annual rent of 5000/. On the 1st of June, 1814, Bailey, in execution of the agreement of October, 1812, assigned to William Crawshay his share in the partnership property. On the 31st of July, 1817, Mr. Hall died, leaving four sons (the eldest of the age of fifteen years) and a daughter. By his will, dated the 8th of the same month, he devised to George Maule, John Llewelin, and Joseph Kays, all his freehold, copyhold, and leasehold estate (except trust and 430 CEAWSHAY v. MAULE. mortgage estates and the estates in which he was interested as a partner with William Crawshay at Cyfarthfa), in trust, subject to the payment of debts and legacies in aid of his personal estate, for the benefit of his children. He then de- clared, that if he should have one or. more son or sons living at his decease, or born in due time afterj but no such son should then have attained the age of twenty-one years, it should be lawful for his trustees, and the survivors and sur- vivor of them, and the executors, etc., of such survivor, to carry on the iron-works and other mercantile or trading con- cerns in which he should be cfoncerned at his decease, if they should judge it for the benefit of the persons interested in his property under his will; and that if they should carry them on, then, during such time as his having such a son should be in suspense, it should be lawful for them to cause or permit any part of the stock in trade or effects which should be employed in or belong to the said works or concerns at his decease, to be employed in carrying on the same ; and he exempted the stock in trade and effects so to be employed from the payment of his debts, to the extent and in the manner thereinafter mentioned. The testator also declares, that if his son who first or alone should attain the age of twenty-one years should be desirous to have the iron-works and concerns or any of them continued, and should signify such desire to his trustees by any writing under his hand, the amount of the stock and effects then employed therein should be valued, and his said son should pay (or secure in manner therein mentioned) to the trustees the money at which such stock and effects should be esti- mated. The testator then directed the application to be made by his trustees of the profits of the iron-works during the suspense of his having a son who should attain twenty- one years, and of the amount of the valuation to be paid or secured by his son as before mentioned ; and declared that if his iron-works and other concerns should be so carried on, CKAWSHAT V. MAULE. 431 and his son who first *or alone should attain the age t-^o-ia of twenty-one years should decline to carry on the same, or to give such security for the stock and effects em- ployed therein, or if while it should be in suspense whether he should have any such son, his trustees should deem it advisable to discontinue the said iron-works and concerns, in either of such cases the iron-works and concerns should be discontinued, and the stock and effects employed in the same should be sold and disposed of in such manner as his trustees should judge prudent and reasonable, and the money arising from the sale, and the gains and profits pre- viously arising from the iron-works and concerns, should be disposed of in the manner in which he had directed the gains and profits, and the money to be paid or secured by his son, in the event before mentioned, to be paid or applied, or as near thereto as circumstances would admit. The tes- tator then appointed Maule, Llewellin, and Kaye, executors of his will, and guardians and managers of the estate of his children during their minorities, and he also appointed his executors and his wife guardians of the persons of his children, and he authorized his trustees to employ any per- sons in the management of the iron-works and concerns, at such salary, and to repose in them such trust or authority in conducting the trade, and in the management and dis- posal of the estate employed or to be employed, and in the receipt of any debts to be contracted therein, as his trustees should in their discretion think fit. On the 12th of August, 1817, William Crawshay sent a written notice to the executors of Hall, that he considered the partnership absolutely dissolved by Hall's death, and would not consent to carry on the works in conjunction with his representatives. The bill in the first cause filed by William Crawshay against the executors of Mr. Hall prayed a declaration that the partnership between the plaintiff and Hall, in the iron- 432 CEAWSHAY v. MAULE. works and all the trade and business thereof, became abso- lutely dissolved or determined, by the death of Mr. Hall, or from that period ; an account of the partnership dealings, from the foot of the last settlement thereof previous to his death, and payment of the balance (after satisfaction of the partnership debts) between the plaintiff and the executors of Mr. Hall, according to their respective interests ; a sale of aU the partnership effects, and a division of the proceeds. The defendants, the executors of Hall, admitted that no written articles were ever entered into between William Crawshay and Hall, any such articles, as they believed, jj. - „ being considered unnecessary, *inasmuch as the pro- -' portions to which the parties were entitled in the leasehold premises and the leases sufficiently ascertained their rights and interests as long as tlTe leases endured. They denied that by the death of Hall, his interest in the premises and iron-works determined or was in any respect affected, submitting that they were entitled to the premises and iron-works, as tenants in common with WUliam Craw- shay, for the residue of the terms of years, for which they were holden, and to carry on iron-works for the benefit of the family of Hall, in the same manner as he carried on the same with William Crawshay, and according to the direc- tions in his will, until one of his sons should attain the age of twenty-one years. They stated that the iron-works were absolutely necessary to the beneficial enjoyment of the leasehold premises; and they insisted, that it appeared from his .will and codicil to be the intention of Richard Craw- shay that his legatees should, for themselves and their representatives and families respectively, have an interest in the leasehold premises and iron-works, commensurate with the terms for which they were holden; that the joint interest which William Crawshay and Hall had therein was not an interest in an ordinary trading partnership, but an interest given by Richard Crawshaw to them for the benefit CEAWSHAY V. MAULE. 433 of themselves and their respective families, commensurate with the terms of years for which the leasehold premises were holden; and that therefore no sale of the property ought to be directed by the Court in opposition to the be- quest of Richard Crawshay, and to the wUl of HaU, whose family would in that event be deprived of the benefits in- tended and contemplated by him to be derived from the leasehold premises and iron-works. The bills in the second cause, filed by the executors and the children of Mr. Hall, against William Crawshay, prayed a declaration that the executors were entitled to the lease- hold premises and iron- works, for three-eighth parts there- of, as tenants in common with William Crawshay (who was entitled to the other five-eighth parts), until one of the sons of Hall should attain the age of twenty-one years, and to carry on the iron-works with William Crawshay, for the benefit of the family of Hall, in the same manner as Hall carried on the same, and according to the directions of his will, until one of his sons should attain the age of twenty- one years, and that then such son, if he chose, would be entitled to the said leasehold premises and iron-works, for three-eighths *parts thereof, as tenant in common with r*qi (• WUliam Crawshay, for the remainder of the said terms of years, and to carry on the iron-works with William Crawshay accordingly. The bill also prayed the conse- quential accounts and directions. June 9th. — On this day a motion was made on behalf of William Crawshay, that it might be referred to the Master, to consider and approve a proper plan for the sale and disposal of the whole of the co-partnership, iron-works, property, estate, and effects, including the goodwill of the joint trade, and that the Master might proceed to a sale thereof immediately. Sir Samuel Romilly, Mr. Bell, Mr. Home, and Mr. Righy^ in support of the motion. 28 434 CRAWSHAY v. MAULE. The partnership, subsisting without any agreement for its continuance during a certain term, was dissolved by the death of Mr. Hall. As long as the surviving .partner carries on the trade with the original capital, the representatives of the deceased are, according to the doctrine of Crawshay v. Collins, 15 Ves. 218, entitled to an account of the profits; but it is by no means clear that the surviving partner could render them responsible for a loss ; an event of probable oc- currence in a business producing very uncertain returns, highly profitable in some years, and in others proportionately disadvantageous. Mr. Crawshay, therefore, insists on his right to a judicial declaration of the dissolution of the part- nership. The object of the motion is not to obtain the effect of a hearing; the decree would direct an account as well as a sale. But were the order for a sale decretal, the Court would not, on that objection alone, compel the surviving part- ner to carry on the trade, during the interval which must elapse before a decree can be obtained, upon the terms of admitting the representatives of the deceased to a participa- tion ia the profits, without being entitled to obtain from them contribution for a loss: Waters v. Taylor, 15 Ves. 10; Forman v. Humfray, 2 V.> & B. 329 ; Featherstonhaugh v. FenwieJc, 17 Ves. 298. Sir Arthur Piggott, Mr. Hart, and Mr. Winthrop, against the motion. The order sought is discretal, and cannot be obtained on motion. The object of Mr. Crawshay's suit is, a judicial declaration of the dissolution of the partnership and a sale. The Court will not, by their summary proceeding, supersede the established rules which protect its suitors and itself from premature decision. *qi 71 *Were the order in its nature interlocutory, at -I least it cannot be obtained on this application. The motion though entitled in both causes, can be made only in the first, the object of the second being foreign ; and to the CRAWSHAT V. MAULB. 435 first cause, neither the widow nor the children of Mr. Hall are parties. Under the residuary clause in the late Mr. Crawshay's will, Mrs. Hall became entitled to the residue, including the iron-works and stock-in-trade, as joint tenant with her husband; that interest was not devested by the codicil, and at the death of her husband, the whole devolved on her by survivorship ; she is therefore a necessary party, and before the suits can proceed,4he posthumous son of Mr. Hall, born since their institution, must be brought before the Court. Independently of these preliminary objections, the order cannot be obtained on the merits. First, this is a case, not of partnership in trade, but of joint interest in land ; each party may apply for a partition, or sell his own share, but cannot compel a sale of the whole. The manufacture of the produce was merely a mode of enjoyment of the land, not a trade. Next, the leases taken during long terms of years, for the purposes of the partnership, amount, in the absence of express agreement on that subject, to evidence of an in- tention to continue the partnership during the continuance of the leases. Lastly, it was the manifest intention of the late Mr. Crawshay, in the provisions of his will, that the duration of the partnership should be commensurate with the duration of the leases. The legacy of 25,000/. to Mr. Bailey is given expressly as a capital for him to become a partner " so long as the lease endures." Lord Chancellor Eldon. — An important consideration is, whether this business is such as would subject the parties to become bankrupts. The distinction is obvious, and for this purpose material, between a partnership in trade and a joint interest in land. As between tenants in common, the Court does not dissolve the tenancy, but leaves each to sell his share ; while in cases of partnership in trade, unless under particular circumstances of the trade, the rule is diflferent. Sir Samuel RomUly, in reply. — If on the death of Mr. 436 CRAWSHAY v. MAULE. Hall his interest in the trade devolved to his widow by sur- vivorship, his executors have no interest, and the second , suit is improperly instituted by them. But the objection is untenable. The codicil of the late Mr. Crawshay withdraw- ing the trade from the operation *of the residuary -I clause in his will, disposes of three-eighths in favour of Mr. Hall alone, to the exclusion of his wife. The objection that the children are not parties to the first suit is equally unfounded. They have no fixed interest. Mr. Hall's will contains only a contingent bequest in favor of a child who shall attain twenty-one. The motion, how- ever, is made in both causes, and the persons interested under that will are therefore before the Court. It is clear that the property consists not of a mere-joint interest in the land, but of a partnership in trade. The business includes the manufacture of ore purchased from strangers, and is such as subjects the parties to the bank- rupt laws. Mr. Crawshay, the testator, described it as a trade. He gives not an interest in leasehold property, but a share in a trade, of the capital of which that leasehold property forms a part. The expression, " so long as the lease endures," assigns no definite period. Among the several subsisting leases, to which is the Court to refer those words ? The testator evidently employed them only to de- note the intention of passing his whole interest in this stock- ■ in-trade. It is absurd to impute to him the design of im- posing on his legatees the obligation of receiving as part^ ners the representatives of such of them as died or became insolvent ; a creditor, for example, taking out administration. On that construction, under the bankruptcy of one, his as- signees, being competent to sell his interest, might introduce the purchaser as a new partner during the continuance of the leases. The order sought is in strict confirmity with practice. The Court, more especially where infants are concerned, CRAWSHAY V. MAULE. 437 takes immediate measures to terminate a trading, which is in effect conducted with the propertj^ of others. Lord Chancellor Eldon. — The object of this motion is a sale of the partnership property ; and in whatever terms ex- pressed, the Court, if it directs a sale, will so direct it, that the property may be sold in the manner most beneficial for all parties interested. Where a suit is instituted for the dissolution of a partnership, and where it is clear on the bill and answer that all or some of the parties have a right to a dissolution, it is not contrary to the course of practice to direct a sale on motion. The two modes of proceeding for obtaining an injmediate order for a sale, either to set down the cause for hearing on bill and answer, or to apply by motion, are the same in effect, though different in form. The *reason of that practice is, that if one partner r^^^-, g has a right to consider the partnership as at an end, it may continue for the purpose of windirig up the affaii^ ; hut being hy death, or notice, or any other mode of determination, actually ended, no person in possession of the property can maJce any use of it inconsistent with^ that purpose. If any person conducts it otherwise, the Court wUl appoint a manager to wind up the concern, and will direct inquiries in what man- ner it can be wound up most beneficially to those interested. The object of this motion, therefore, might be obtained, not- withstanding the objection of form ; and the difficulty with regard to parties might also be remedied by allowing the case to stand over for the bill to be amended ; and the question is to be considered on the part of Mr. Crawshay, as if the infant children of Mr. Hall had applied for a de- claration that the partnership is not dissolved. The general rules of partnership are well settled. Where no term is expressly limited for its duration, and there is nothing in the contract to fix it, the partnership may be terminated at a mmnenfs notice by either party. By that notice the partner- ship is dissolved to this extent, that the Court will compel 438 CKAWSHAY v. MAULE. the parties to act as partners, in a partnership existing only for the purpose of winding up the affairs. So death terminates a partnership, and notice is no more than notice of the fact that death has terminated it. With- out doubt in the absence of express, there may be an im- plied, contract, as to the duration of a partnership ; but I must contradict all authority, if I say that wherever there is a partnership, the purchase of a leasehold interest, of longer or shorter duration, is a circumstance from which it is to be inferred that the partnership shall continue as long as the lease. On that argument the Court, holding that a lease for seven years is proof of partnership for seven years, and a lease of fourteen of a partnership for fourteen years, must hold that if partners purchase a fee simple, there, shall be a partnership for ever. It has been repeatedly decided, that interests in lands purchased for the purpose of carrying on traj^e are no more than stock-in-trade. I remember a case in the House of Lords about three years ago (the case of the Carron Company) in which the question was much discussed, whether, when partners purchase freehold estate for the purpose of trade, on dissolution that estate must not be considered as personalty with regard to the representa- tives of a deceased partner? See 1 Lead. Cas. Eq. 174, 3ded. The doctrine that death or notice ends a partnership has ^ ^ been *called unreasonable. It is not necessary to -• examine that opinion, but much remains to be con- sidered before it can be approved. If men will enter into a partnership, as into a marriage, for better or worse, they must abide by it ; but if they enter into it without saying how long it shall endure, they are understood to take that course in the expectation that circumstances may arise in which a dissolution will be the only means of saving them from ruin ; and considering what persons death might intro- duce into the partnership, unless it works a dissolution, there CKAWSHAY V. MAULE. 439 is strong reason for saying that such should be its effect. Is the surviving partner to receive into the partnership, at all hazards, the executor or administrator of the deceased, his next of kin, or possibly a creditor taking administration, or whoever claims by representation or assignment from his representative ? If Mr. Crawshay, the testator and owner of this property, had thought proper, by his will, to declare that his legatees should continue the partnership as long as the longest of the leases should endure, no person, I agree, claiming under that will, could enjoy the benefits conferred by it, without sub- mitting to the inconveniences which it imposed ; but I find nothing to that effect in his wiU. It might have been plausi- bly, though I think not effectually, contended, that Bailey and Hall were bound to continue partners as long as they lived ;.but the words cannot be represented as imperative on any other person. The difficulty on the part of those who insist that the partnership is to continue as long as the leases, is this, that they cannot insist that it is to continue between the original partners and their representatives ; for they have admitted, and must admit, that each partner might assign his interest, and assign it to any number of individuals, in any number of shares ; so that in truth the partnership, within two years after its formation, might not contain either an original partner, or a representative of any one of the original partners ; but might consist entirely of a multitude of assignees. ^ In another view of this question it becomes important accurately to know the nature of the business. It seems difficult to establish that this is an interest in land distinct from a partnership in trade — a mere interest in land, in which a partition could take place ; for when persons having purchased such an interest, manufacture and bring to market the produce of the land, as one common fund, to be sold for their common benefit, it may be contended that they have 440 CKAWSHAY v. MAULE. entered into an agreement, which gives to that interest the . *nature, and subjects it to the doctrines, of a part- J nership in trade. Such is my present vie*W; but both on the merits and on the objections of form the case deserves further consideration. June 27. Lord Chancellor Eldon. — It may be assumed, though the observation is not material to the purposes of this applica- tion, that the desire of Mr. Crawshay, the testator, was to keep the concern together. He gives a sum of 25,000/. to Mr. Bailey, as a capital for him to become a partner with his executor, Mr. Hall ; the rest of his interest in the trade, if he had not made a codicU, would have passed by the will to Hall and his wife. The effect of the will and codicil combined is this, — ^by the former, the testator being pos- sessed of the entire concern, bequeathed two-eighths' to Bailey, the rest, including the thrfee-eighths given by the Qodicil to William Crawshay, would have devolved under the residuary clause to Hall and his wife ; the codicil, continu- ing the gift of two-eighths to Bailey, disposes of three- eighths to William Crawshay, and of the remaining three- eighths to Hall, in exclusion, as I understand, of his wife. Such being the state of the concern at the death of the tes- tator, it appears that Bailey sold his share to William Craw- shay, and it has not been disputed in the course of the dis- cussion, that every one of the legatees was at liberty to sell his interest ; the consequence is, that the individuals form- ing the partnership may be changed as often as the partners think proper. The question on these pleadings is, whether supposing this the hearing of the cause, the Court could order the property to be sold ; and whether the nature of the concern, and of the interest of the several parties in it, is not such that, each being at liberty to sell his own share, they yet cannot, more particularly by interlocutory applica- CRAWSHAY V. MAULE. 441 tion, call on the Court for a sale of the whole ? Mr. Craw- shay, having bought the interest of Mr. Bailey, carried on the business jointly with Mr. Hall till the death of the latter. His wUl seems to me to devolve on his executors the discre- tion of continuing or discontinuing this concern, as they should think most for the benefit of his family ; and he con- siders himself at liberty (for the wUl states as much) to in- troduce three executors as partners with Mr. Crawshay, and various branches of his family as cestuis que trust of those executors, as they must be, if the partnership is continued. It is impossible to contend that Mr. HaU may thus impose on Mr. Crawshay the necessity of continuing *in r*qoo partnership with his three executors, and their cestuis que trust, without admitting that on the same principle he might have imposed the obligation of receiving as partner any person who might now sustain, or hereafter acquire, the character of executor or administrator to any of the trustees, or of their cestuis que trust, and that Mr. Crawshay might have exercised a similar power. If this case is to be con- sidered subject to the principles which govern partnerships in general, I cannot say that such was the situation of either party. On the death of Mr. Hall, there being no articles of part- nership or agreement for its continuance, without any notice, and for every purpose except that of winding up the concern, the partnership would cease, unless the surviving partner, and the representatives of the deceased, entered into some agreement for its continuance : and in the absence of articles or stipulations to the contrary, Crawshay, in the life of Hall, or Hall in the life of Crawshay, might, on the common principles of the contract, by notice have terminated the partnership. It is contended, that the late Mr. Craw- shay, having formed this business, must have had an inten- tion to keep it together as one concern, though he distributed diflferent interests in it among different members of his 442 CKAWSHAY v. MAULE. family 5 had lie so said, without doubt those who took his bounty must have taken it on the terms which he imposed ; but there is no such expression in his will. or codicil; nor is the effect of those instruments more than to give an in- terest in aliquot shares and proportions in this concern. He has said, indeed, that Bailey should have an interest to the amount of 25,000?. and should be partner with his ex- ecutor ; but neither the terms nor the intent of the will im- pose on Bailey, or on his executor an obligation to carry on the partnership, except as between themselves ; and if Bailey thought proper to sell to Crawshay his interest, a question might have arisen, a,s long as the executor was livings whether CraWshay, purchasing the interest of Bailey, did not purchase subject to the obligation which, it is said, this will imposes on Bailey; but it seems to me impossible to contend, that when the executor was dead, either Crawshay or Bailey were bound to carry on the trade with the execu- tors of that executor, a proposition which cannot be main- tained without asserting that they were bound to carry on the trade with the successive executors of that executor, to the expiration of the leases. It has also been insisted that the purchase of leases must be *considered as evidence of a contract for the continu- -■ ance of the concern. Unquestionably partners may so purchase leasehold interests as to imply an agreement to continue the partnership as long as the leases endure ; but it is eofually certain that there is no general rule, that partners pur- chasing a leasehold interest must he understood to have entered into a contract of partnership commensurate with the duration of the leases. For ordinary purposes a lease is no more than stock-in-trade, and, as part of the stock, may be sold; nor would it be material that the estate purchased by a partner- ship was a freehold, if intended only as an article of stock; though a question might in that case arise on the death of a partner, whether it would pass as real estate, or as stock, CEAWSHAY V. MAULE. 443 liersonal estate in enjoyment, though freehold in nature and quality. It is impossible therefore in my opinion to hold, that there being many leases, some long, some of short duration, and others intermediate, the partnership is to sub- sist during the term of the leases or the longest lease. By the will of Mr. Hall, the question, whether his executors and trustees should continue in partnership, is left to their discretion; clear evidence of his opinion, that his interest might be separated from Crawshay's; if so, Crawshay's might be separated from his; and upon that construction of the will of the late Mr. Crawshay, the argument is, that he meant the whole concern to be kept together, but cared not who Avere to be the partners; an intention not to be im- puted to him unless unequivocally expressed in the words of his will. The question then resolves itself into this, what is the nature of this partnership property? The general doctrine with respect to a trading partnership is, that where there is no agreement for its continuUnce, any one of the partners may terminate it; and admitting the serious inconvenience which sometimes ensues, it becomes us to recollect the formidable evils which would attend the opposite doctrine ; nor is it clear that a better rule could be suggested : but whatever is its policy, the principle of law being established, it is in- cumbent on those who engage in partnership to protect themselves by contract against its inconveniences; if they omit that precaution, courts of justice have no right to re- deem them from the penalties of their imprudence. . With respect to mere joint-interests in land, I apprehend the rule to be different; the parties then becoming tenants in common, each cannot call on his companions to concur in a sale, but must sell his own interest. It is said that this is only the case of *tenancy in common of a mine ; if so I rufonA think that the doctrine with respect to land would apply, and not the doctrine with respect to trading partner- 444 CRAWSHAY v. MAULE. ships; but a very difficult question may arise whether, if the parties, being originally tenants in common of a mine, agree to become jointly interested in the manufacture of its produce for the purpose of sale, they continue mere tenants in com- mon of the mine; still more, if not only carrying the pro- duce of their own mine to market, they become purchasers of other property of a like nature, to be .manufactured with their own. On such a case in bankruptcy, it might be a question whether they were purchasers for the mere purpose of better bringing to market the produce of their own mine, or for the purpose also of bringing a distinct subject to market as traders. On the evidence before me the case is left somewhat doubtful, though I think that the language of Mr. Hall's wUl, and of all the instruments, describes this as a trading concern; but under the circumstances it will not be wrong to have the nature of the business explained by affidavit. , If this is a trading partnership, the common principles must be applied. Then comes the question, can the Court, in such a case, direct a sale by interlocutory order on motion? I have con- sidered that question much, and I think that the Court not only can, lut in many instances does, order a sale on motion, in the instance of a trading partnership actually dissolved. Con- sider the inconveniences of a contrary proceeding. By the hypothesis, the Court has before it the case of a trading partnership clearly dissolved, and nothing remains, therefore, but to wind up the concern; we must then weigh the con- sequences of permitting the business of a partnership actually dissolved, to procee(i until a decree for a sale; a decree which, in those circumstances, must necessarily be pronounced. An universal rule, that the trade, whether beneficial or not, should be carried on till the decree, would render the jurisdiction of the Court in many cases extremely mischievous; and on general principles, therefore, it is the practice, in the instance of a trading partnership clearly dis- CRAWSHAY V. MAULE, 445 solved, at once to put an end to the trade, where that mea- sure is required by the evident interest of the parties. I shall reserve my final decision till I have seen the affi- davit; and it may he worth consideration, whether you wUl not in the meantime bring before the Court the posthumous child of Mr. Hall. *The affidavit of Mr. Crawshay, in explanation of rsHoor the nature of the business, was to the following effect: — That the ironworks at Cyfarthfa had, from the period of their first establishment by his father, being con- cjucted as a trading concern ; that the produce of the mines consisted of ironstone, coal, and limestone, and that at the works large quantities of iron (of various specified descrip- tions) had been and were manufactured, sometimes from the materials obtained from the leasehold premises in question, and sometimes from pig-iron and finers' metal purchased in London, Plymouth and Bristol ; that from the establishment of the works, the proprietors had been in the habit of making very considerable purchases of iron-ore from Lanca- shire, pig-iron, and finers' metal, and of old wrought-iron, naval and ordnance stores, for the purpose of manufacturing the same at the works into various sorts of iron, and reseU- irig them in that manufactured state ; that such purchases (to a large amount), manufacture, and resale, had been made by the successive firms of Crawshay, HaU and BaUey, and Crawshay and Hall, during those respective partner- ships ; that "the whole of such purchases were made with a view to profit, by manufacturing the same at the works, into bar and other iron for resale, and not merely for mixing the same with the iron the produce of thie works, for the purpose of improving the iron of the works, or bring- ing the same better to market; and that from the first 446 CRAWSHAY v. MAULE. establishment of the works, the ironstone, coal, and lime- stone, produced from the mines on the works, had niever been sold in their natural or raw state, except a small quantity of coal for the accommodation of the laborers. Juh/ 23. Lord Chancellor Eldon. — This application, whether granted or refused, is one of the most important with which I have lately had to deal. The motion is made in two causes, to neither of which' , is the widow of Mr. HaU a party. The first bill prays a declaration that the partner- ship is dissolved ; the object of the second is to compel its continuance, omitting to advert to a fact which in any view of the case, seems clear, that Crawshay could not be con- strained to remain a partner, but had the same right to dis- pose of his interest which was exercised by Mr Hall over his own. I am perfectly satisfied that the relief sought by that bill cannot be given, that is, that the executors of Mr. Hall cannot bind Crawshay to them ; whether he can com- ^ pel dissolution, is quite another *question. Mr. -■ Hall having by his will disposed of his own share, and attempted to introduce new partners, there is obviously no equity to constrain these parties to continue in partner- ship, unless it arises from express or implied contract or from directions in the will under which they all claim. In that will I find no such direction. It is calculated only to render Bailey a partner in the trade, but imposes no condi- tions on Crawshay. On that point, however, it may be sufficient to say, that had any such conditions been imposed, yet when the interests of Bailey and Crawshay became united in one . person, and the executor was dead, having made such a will as appears in these pleadings, it would be impossible to maintin that an obligation existed among the parties to continue in partnership during the remainder of the leases. CRAWSHAY V. MAULE. 447 I am also of opinion that, if this is to be considered as a partnership in trade, the utmost that can be made from the purchase of leases of longer or shorter duration, is to pro- pose that as a circumstance of evidence, from which may be inferred an implied contract that the partnership should last as long as those leases ; but I find nothing here to authorize the conclusion that such was the intention. The purchase of a lease by a partnership is no more than the purchase of an article of stock, which when the partnership is dissolved must be sold. I lay aside the affidavit as to the nature of the undertaking, because there is sufficient in the wills of Crawshay and of Hall, to call on the plaintiffs in the second cause to show that this was not a trading part- nership, if they meant to insist on that proposition. At present, I think that this was a trade. The next question is, what is the consequence of Mrs. Hall not being a party ? It is said that the effect of Craw- shay's codicil is not such as to deprive Mrs. Hall of her in- terest under the will. That argument, if correct, might raise a question somewhat difficult ; for considering the nature of the property, including freehold, leasehold, and personal chattels, and the power of Mr. Hall, as her husband, over her interest in many parts of that property, by reducing them into possession, unless we hold that the codicil deprived her of all the benefit which the residuary clause in the will conferred, it would not be easy to know what is become of her interest. Mr. Hall has taken on himself by his will to dispose of this property, and has given to his wife a provision which would put her to elec- tion, if she retains any interest in it ; and should she r*oo7 *elect to take against the will, it requires considera- tion, that she is not a party. The infant also is not before the court; and some difficulty may arise from "acting in their absence. On the other hand, it is iinpossible to call on Crawshay to continue a partner with the executors of 448 GEAWSHAY v. MAULE. Hall, and to say that, whether they are considered as having the legal estate only or as trustees for the family of Hall, Crawshay is obliged to unite himself with them as a trustee carrying on the trade for the benefit of theiv cestuis que trust ; or that he has not at this moment the same right which HaU by his wUl supposed his executors would have at his death, and his eldest son at twenty-one. That brings it again to the question, whether this is a partnership in trade or a tenancy in common in land ; and if a partnership in trade, whether the ordinary rule of the Court is, on dissolution by the death of a partner, to wait till a decree before disposing of the partnership property, if the concern is of such a nature that it cannot be wound up at once ? I consider it clear, that the general rule is not to wait for a decree ; but at least if the parties differ as to the mode of carrying on the trade, the Court will, without refer- ence to the objection for want of parties, appoint a manager. Whether they will give notice of a motion for that purpose, which they shall be at liberty to do, or call on the Court for its opinion, and a reference to the Master to state the best mode of winding up the concern, is what the parties wUl determine. Mr. Crawshay says, what I think is not unreasonable, that he will not carry on the trade five-eighths for. himself, and three-eighths for the benefit of others. I desire to be un- derstood as not deciding against ordering a sale, if Mrs. Hall and the infant were before the Court. If Mr. Crawshay will not carry on the trade, it is for the benefit of all parties interested, absent as well as present, that a manager should be appointed ; and it is clear that the Court possesses the power of making the order on motion, without waitiag for a decree. Jul^ 31. Lord Chancellor Eldon. — The first question that remains to be considered is, whether Mrs. Hall has any interest in CRAWSHAT V. MAULE. 449 this fund ? How does that stand in the opinion of other per- sons ? First, Mr. Hall disposed of the whole interest by his will ; and his executors have filed a bill on the supposi- tion that she had no interest ; next, if the codicU had not the effect which I imagine on the will, the nature of the property renders it extremely improbable that Mrs. *Hall should retain any interest ; lastly I think the r*qoo codicil a revocation of the will, so far as concerns the trade. The question follows, is it clear that the partnership was dissolved by the death of Hall, or am I to say that his executors, or any of them, are partners at this day in this concern ? After repeated consideration I entertain no doubt, either that if this is to be regarded as a trading concern the partnership was ended by his death, or that it was a trading concern ; the consequence is, that being a trading concern, and the partnership being terminated by Hall's death, Craw- shay would be justified in dealing with the property, since that event, as a person who is to wind up the concern : that introduces the question, whether I am to place a manager on the estate, or to leave Crawshay to deal with the property as surviving partner ? In that character he is at liberty to deal with it for the purpose of winding up the concern ; it is true that other parties are at liberty to deal with it in the same way, and in the event of differences between them, the Court can only appoint a manager to act under its direc- tion. If application was made for a manager, it would be the duty of the Court, with regard to the infants, to consider whether that appointment is for their benefit, or whether there should be a reference to inquire the expediency of ap- pointing a manager to wind up the business, or ordering a. sale. The state of the market varies so much, that a sale^ which might be beneficial at one moment and prejudicial at. another, cannot be ordered without inquiry. I think that I shall not do wrong in directing a reference to. the Master of the vacation to inquire whether it is for the advantage of all 29 450 CKAWSHAY v. MAULE. parties that this property should be sold, and if so, on what terms, without prejudice to any question. " His Lordship doth order, that it be referred to Mr. Courtenay, the Master of the' vacation, to inquire and state to the Courtj whether it will be for the benefit of all parties concerned in the works, that the same should be sold, and in what manner, as going works, or that they should be car- ried on for the purpose merely of winding up the concern; and for the purpose of making such inquiries, the parties are to be examined upon interrogatories, if the Master should so think fit, and to produce all books, papers, and writings re- lating to the said works, the production of which the said Master may think it proper to require ; and it is ordered, that the said Master do proceed de die in diem" 31 July, 1818, Reg. Lib. A. 1817, fol. 1760. *H2Q1 *'^y ^^^ report, dated 11th December, 1818, the Master, after stating that it was admitted that it would be highly injurious to all parties interested, to stop the works, or^^to carry them on merely for the purpose of winding up the concern, or to put them up to sale otherwise than as going works, and that William prawshay has offered to purchase the whole of Mr. Hall's share for 90,000/., cer- tified that it would be for the benefit of the infants, and of all other parties concerned in the works, that the whole of the shares and interests in the said leasehold and other es- tates, etc., vested in the executors of Mr. Hall, should be sold to Mr. Crawshay at that price. By an order-'of the Vice-ChanceUor, on the petition of Mr. Crawshay, the Re- port was confirmed, and it was " ordered, that the defend- ants, G. Maule. J. Llewellyn, and J. Kaye, as executors of the said B. Hall, Esq., the testator in the pleadings named, be at liberty to sell and dispose of, to the petitioner by private contract, at the sum of 90,000/., ascertained and ap WATEKS V. TAYLOR. 451 portioned as in the said Report specified, all the estate, shares, right, and interest of them the defendants, as such executors as aforesaid, of an,d in the said iron-works, and the said late co-partnership of Crawshay and Hall, and in the leases, farms, lands, and buildings, wharf, machinery, etc." 24th December, 1818. Reg. Lib. A. 1818, fol. 204. WATERS V. TAYLOR. November 4, December 24, 1813. [Reported 2 Ves. & Bea. 299.1 Partnership in the Opera House, dissolved by the conduct of the parties making it impossible to carry it on upon the terms sti- pulated. Decree accordingly for a sale of the whole concern; restraining the managing partner from acting, with liberty to either party to lay proposals before the Master for management until the sale. This cause^ coming on to be heard, the plaintiff, who claim- ed as executor of Mr. Gould, who was entitled by assignment from the defendant, Mr. Taylor, in 1803, to seven-sixteenth parts of the Italian *Opera House, and as mortgagee r.-;cqqA of the remaining shares, which continued to be the property of Taylor, by his bUl prayed a decree of foreclo- sure of the mortgage, a dissolution of the partnership, an account of the transactions, and particularly the receipts and payments, of the defendant Taylor, an injunction restraining 1 See the case stated in the Report upon the motion, 15 Yes. 10. 452 WATERS v. TAYLOR. him from receiving any part of the income, and interfering in the concerns of the Opera House, and a direction to the Master to consider of a scheme for the sale of the joint property or for the future management. The defendant, Taylor, by his answer claiming as a creditor upon the result of the account, insisted on a lien upon the plaintiff's share for the balance, that should appear to be due. Sir Arthur Piggott, Mr. FonUanque, Mr. Hart, and Mr. Johnson, for the plaintiff. Mr. Richards, Sir Samuel Romilly, Mr. Leach, Mr. Wetherell, and Mr. Shadwell, for the defend- ant, Taylor. For the plaintiff it was insisted, that if he was entitled to a decree, dissolving the partnership, the Court in directing the future management was not bound to the particular sti- pulations of the contract ; but would consult the benefit of the parties. Upon the question as to the dissolution of the partnership, Sayer v. Bennett, 1 Cox 107, and Adams v. Idardet (from a MS. of Sir Samuel Romilly, before Lord Thurlow) were cited. In the former, upon the insanity of a partner, an in- quiry was directed, whether he was in such a state of mind as to be capable of conducting the business, but the result does not appear. The Lord Chancellor (Lord Eldon) in the course of the argument inquired, how the sheriff executes the writ under a judgment against one partner, according to the present doctrine of courts of law, that he takes the interest of the partner ; and in some way (it is not very clear how) they take an account of all the concerns ; and the creditor sells the" interest of the partner. Is not that a dissolution of the partnership ? ■ Mr. Cooke {amicus curiae) said, the way in which the sheriff executes the writ in practice, is by making a bUl of sale of the actual interest : 8cott v. Sholey, 8 Bast 467. "WATEKS V. TAYLOR. 453 Lord Chancellor Bldon. — If the coiirts of law have fol- lowed courts of e(iuity in giving execution against partner- ship eflfects, I desire to have it understood, that they do not appear to me to adhere to the principle, when they suppose that the interest can be sold, before it has been ascertained what is the subject of sale and purchase. According to the old law (16 Vin. Ab. 242, 243, etc.), *I mean before r*qo-i Lord Mansfield's time, the sheriff under an execution against partnership effects took the undivided share of the debtor, without reference to the partnership account ; but a court of equity would have set that right by taking the ac- count, and ascertaining what the sheriff ought to have sold ; the courts of law, however, have now repeatedly laid down (Barhurst v. ClinJtard, 1 Show. 173; Eddie v. Davidson, Doug. 650), that they will sell the actual interest of the partner, professing to ekecute the equities between the parties ; but forgetting, that a court of equity ascertained previously what was to be sold. How could a court of law ascertain what was the interest to be sold, and what the equities ; depending upon an account of aU the concerns of the partners for years ? By the express contract of these parties, which is the basis of this concern, whether a partnership, or to be de- scribed by ai^y other denomination, Taylor was manager, subject to aU the engagements to which Grould had been sub- ject. Whether this is a partnership, which might be dis- solved by filing the biU (which it is perhaps difficult to maintain), or for a term of years, or, as was contended in the case of the theatre on the other side of the Haymarket {Morris v. Coleman), without limits, as long as renewals could be obtained, is not extremely material in the view the Court is obliged to take of this case. The case alleged is : that all these engagements have been violated from day to day ; that performers have been em- ployed without mutual consent; that this has been the 454 WATERS v. TAYLOR. habit, and may ~ be persevered in: so, as to the nightly- receipt of the money, which, it is represented, being either left in a particular place, or paid to an agent, has in some way got to the disposition of Taylor ; and the attempt of this Court to put an end to that has been rendered ineffect- ual by a slip in the terms of the injunction — a circumstance which I cannot regard, as the effect is, that the parties were under no prohibition. There is hardly one covenant which has not been violated. It is said the remedy is by repeated actions of covenant, and it is supposed that juries may have feelings of vengeance that may subject Mr. Taylor to such damages as may produce the full object of the plaintiff; but a court of equity has power to restrain and enjoin, — a power in many instances recognised by the law, as resting on that very circumstance, that without such interposition the party can do nothing but repeatedly resort to law ; and when that has proceeded to such an extent as to become vexatious,, for that very reason the jurisdiction of a court of equity attaches. ^ _.^ *It was supposed, that I haA contradicted Lord ""J Kenyon's doctrine in jSatfer v. Bennett, 1 Cox 107. Certainly I did not contradict that doctrine, nor did I make any decree which, duly considered, was an assent to it. The case wasno more than this : one partner becoming alunatic,the others thought proper by their own act to put an end to the partnership, which they had no right to do, if he had been sane ; and they continued to carry on the business with his capital, not being able to state what was his as a creditor and what was not his as a partner. That Lord Kenyon thought afforded a sufficient ground for saying the partnership was not determined ; and he also held, that one partner cannot on account of the lunacy of another put an end to the part- nership, but that object must be attained through the decree of a court of equity. My decision was not intended either to support or im- WATERS V. TAYLOE. 455 peach that; proceeding upon the particular circumstances of the case before me. The question whether lunacy is to be considered a dissolution, is not before me {Huddlesons Case, «ited 2 Ves. 34) ; I shall therefore say no more upon it than this. If a case had arisen, in which it was clearly established, as far as human testimony can establish, that the party was what is called an incurable lunatic, and he had by the articles contracted to be always actively engaged in the partnership, and it was therefore as clear as human testimony can make it that he could not perform his con- tract, there could be no damages for the breach in conse- quence of the act of God ; but it would be very difficult for a court of equity to hold one man to his contract, when it was perfectly clear that the other could not execute his part of it. It will be quite time enough to determine that case when it shall arise ; for as we know that no lunacy can be pronounced incurable, yet the duration of the disorder may be long or short, and the degree may admit of great variety, I would not therefore lay down any general rule by antici- pation, speculating upon such circumstances. I agree with Lord Thurlow, that the jurisdiction is most difficult and deli- cate, and to be exercised with great caution. The real question here is quite different from Adams v. Liardet, which I take to be that in which Lord ■ Thurlow's opinion was expressed. This question is, whether from the acts of Taylor himself it is not manifest, that this partner- ship cannot be carried on upon the terms for which the par- ties engaged : whether a single act has been done by him of late, that is not evidence, on his part, that he can no longer himself be bound by his contract, so as to *ob- r*ooo serve the terms of it ; when he excludes himself from the concern and the partnership, as far as it is to be con- ducted upon the terms on which it was formed, and says he wiU carry it on upon other terms. Taking that to be his conduct, this comes to the common case of one partner ex- 456 "WATBKS v. TAYLOR. eluding the other from the concern; as, if one will not, because he cannot, continue it upon the terms on which it was formed, the consequence must be, that he says his part- ner shall not, because he cannot, carry it upon those terms. That is the true amount of this case. The one cannot en- gage a performer without the other's consent ; having entered into stipulations only with reference to agreement, they have given me no means of extricating them from the difficulties arising from non-agreement. Suppose an opera at this time requires more than 300^. per week, or a new exhibition more than 500?., if the plaintiff differs upon that, what is a judge to do but to look at the contract, as the only thing the Court can act upon : and if both parties agree that the contract cannot be acted on, that furnishes the means of saying there is an end of it, and their interests arte to be regarded as if no such contract had existed. The parties by consent de- termine that there is an end of the concern, which cannot be carried on upon the terms stipulated ; and the Court can-, not substitute another contract. In this view of the case, my opinion is that this contract is determined, and the parties must be treated accordingly: Baring v. Dix, 1 Cox 213. The decree as tq the mortgage, etc., is of course. But another view of the case arises from the answer of Taylor claiming as a creditor upon the ac- counts, and that the Court, regarding this as partnership pro- perty, shall give him a lien upon the plaintiff's share for the balance that may be due on the account. Upon the same principle then, if the plaintiff shall appear to be a creditor, has not he a right to have Taylor's share sold ? and then is the Court, winding up the concern, to sell the share of one, and not the whole, joint property ? Each has an interest to have the whole sold, which will sell much better than the shares, especially if unliquidated. The most difficult question is that as to the appointment of a manager in the interval between the decree and the WATERS V. TAYLOR. 457 sale. This joint concern ought to be brought to sale, if at all, upon the principles I have mentioned ; placing them in the state in which they would be, if without any stipulation for management they were *respectively owners of r*qqj. given undivided shares, they agree upon given prin- ciples and prescribed terms for the management, which can no longer be carried on upon those principles and terms, and the question is, whether the Court can impose a manager before the sale, not upon the prescribed terms, but on such as may be advisable for all the parties concerned. With an inclination, that I shall have great difficulty to make that a part of the decree, without some previous inquiry, I reserve for further consideration that difficulty and material ques- tion, having expressed my opinion upon the rest of the case; in a word, that these parties have themselves dissolved this joint concern, as their conduct shows that they cannot carry it upon the terms stipulated. December 24. — The minutes, as corrected by the Lord Chancellor, declared, that the defendant Taylor was not en- titled to act as manager until a sale ; and that if the Master's opinion should be, that the property could not be immedi- ately sold, either party was to be at liberty to lay proposals before him for the management until a sale. Crawshay v. Maule and Waters v. Taylor are printed together, because they are generally cited as leading cases on the law relating to partnership, more especially whenever the questiqn arises as to what amounts to, or is a sufficient reason for a court of equity to decree, a dissolution of partnership, and as to the important results therefrom, both to the partners themselves or to third parties con- nected with the partnership. These topics it is proposed to consider somewhat in detail in this note, so far as relates to ordinary private partnerships only. 458 CRAWSHAT v. MAULE. Before doing so, however, it may be remarked, althougli it is usual for partners to regulate the terms upon which they agree to associ- ate in any business by articles of partnership, yet that a private unincorporated partnership does not require to be evidenced by writing, a^d it may be entered into by a mere parol engagement, or be inferred from the acts of the parties : Peacock v. Peacock, 16 Ves. 49. See also Norton v. Seymour, 3 C. B. 792 (64 B. C. L. E.) ; Smith v. Sherwood, 10 Jur. 214 ; Beech v. Eyre, 5 M. & G. 415 (44 E. C. L. R.); 6 Scott K R. 327; Heyhoe v. Burge, 9 C. B. 431 (67 E. C. L. R.). We may also notice the diflferent classes of partners. They may be (1) Ostensible partners, or those who really are and appear to the world as partners. . (2) Nominal partners, or those who, though they *have no interest in the firm, appear and are held out to the J world as partilers. (3) Dormant partners, or those who are not known to the world as partners, and do not intertneddle with the partnership affairs ; but who, as they share in the profits, are ordinarily liable to third parties.. Having made these preliminary remarks, it is proposed to con- sider: 1. What constitutes a partnership. 2- The liability of per- sons as partners to third parties though not partners inter se — quasi partnership. 3. The liabilities of partners. 4. The rights and in- terests of partners in the partnership property. 5. The rights, duties, and obligations of partners, between themselves. 6. The remedies of partners as between, themselves. 7. The rights of part- ners against third parties. 8. The dissolution of partnership, when and how it may be effected. 9. The effects and consequences of a dissolution. 1. What constitutes a partnership. — Partnership may be defined to be a voluntary contract, whereby two or more competent persons put, or contract to put, something in common, whether it be money, effects, labor, and skill, or some or all of them, for some lawful pur- pose or business, in order that there may be a communion of profits arising therefrom between or amongst them : Coll. Partn. 2 ; Story Partn. § 2; Pothier Partn. by Tudor, p. 2. It is worth while to examine carefully this definition of the con- tract of partnership, for it will be seen hereafter to have a most WATEKS V. TAYLOE. 459 important, bearing upon many questions -whicli arise, both between partners themselves and others. First of all, partnership is said to be a voluntary contract, and herein it is clearly distinguishable from those cases in which a com- munity of interest may exist, independently of contract or the will of the parties interested. Persons, for instance, who by deed, will, or gift inter vivos, become entitled to property, either as tenants in common or joint tenants, although they enjoy a community of inter- ests, are not partners but part-owners. So if two or more persons purchase goods for the mere purpose of division, and not for the purpose of selling and dividing the profits, although there is a com- muaity of interest between them, it is not a partnership : Hoare v. Dawes, Doug. 371 ; Coope v. Eyre, 1 H. Black. 37 ; Gibson v. Lup- ton, 9 Bing. 297 (23 E. C. L. R.); Heap v. Dobson, 15 C. B. N. S. 460 (109 E. C. L. R.). So likewise, although there is a community of interest between the representatives of a deceased partner and the surviving partners, there is not, independently of contract, any partnership between them : Pearce v. Chamberlain, 2 Ves. 33. Upon the same principle, where persons engage to do some par- ticular work, and receive money for it, not on a joint account or for their joint benefit, but to be divisible between them on receipt ; the contracting parties, it seems, *will not be partners but joint contractors : Finckle v. Stacy, Sel. Oh. Ca. 9. See the re- •- marks of Wigram, V.-C, 7 Hare 174. In the contract of partnership, moreover, which is founded upon the delectus persona, no third party can be introduced, as a partner in the firm, without the consent of all the persons comprising it, although such third person might, without the consent of the rest, become a partner with an individual member of the firm in his share ; for it has long since been established that a man may become a part- ner with A. when A. and B. are partners, and yet not be a member of that partnership which existed between A. and B. See Ex parte Barrow, 2 Rose 255 ; Sir Charles Raymond's Case, cited 2 Rose 255 ; Bray v. Fromont, 6 Madd, 5; Goddard v. Hodges, 1 C. & M. 38; 3 Tyrw. 209. Upon this ground, as was laid down in the principal case of Craw- shay V. Maule, a surviving partner cannot, in the absence of a stipulation to that eflfect, be compelled to receive into the partner- 460 CEAWSHAY v. MAULE. ship the representatives of a deceased partner : Pearce v. .Chamber- lain, 2 Ves. 33; Godfrey v. Browning, ib. 34, cited. So strictly was this principle adhered to in the Roman law, that even a stipu- lation for the admission of the heir of the deceased into the partner- ship was void. "Adeo morte socii solvitur societas, ut nee ah initio pacisci possimus, ut hceres suceedat aocietati:" Dig. lib. 17, t. 2, 1. 59; and see Dig. lib. 17, t. 2, 1. 35; Dig. lib. 17, t. 2, 1. 52, s. 9; Dig. lib. 17, t. 2, 1. 65, s. 11; Dig. lib. 17, 4. 2, \. 70. The law of England, however, very rightly does not restrain persons entering into a contract for a partnership, from expressly stipulating that upon the death of any of them, any person or class of persons may be introduced into the partnership : Stuart v. Earl of Bute, 3 Ves. 212; 11 Ves. 657; 1 Dow. 73; Balmain v. Shore, 9 Ves. 500 ; and see Warner v. Cunningham, 3 Dow. 76 ; Simmons V. Leonard, 3 Hare 581; Page v. Cox, 10 Hare 163; but such stipulation must be clear, otherwise the onus of showing the exist- ence of a partnership, in order to render any such person or class of persons liable, will lie upon the surviving partners : Tatam v. Williams, 3 Hare 347, 356. The option reserved to the executors of a deceased partner to enter into the partnership with a surviving partner must be accom- panied by the obligation on the part of the surviving partner to admit them ; and unless the option be confined to the representatives of the partner who shall die first, the surviving partner must have the option of entering into the partnership with the representatives of the deceased partner, with the same accompanying obligation on their part to admit him : Downs v. Collins, 6 Hare 418, 436. With regard to the question, who are competent persons to enter into partnership, it may be observed that all persons sui juris may *3371 "^^ ^°' ■^^^'^ ^'^ *^® ^^^^ °f ^^ infant, his contract to be- come a partner is not void, but only voidable, as it may be for his benefit ; and if, after attaining his majority, he either ex- pressly intimates his desire to remain a partner, or does so impliedly, by not repudiating the contract within a reasonable time, he will be considered to have affirmed it, and his liability as a partner will attach: Holmes v. Blogg, 8 Taunt. 35, 508 (4 E. C. L. R.); Baylis V. Dineley, 3 M. & Selw. 477; Goode d. Harrison, 5 B. & Aid. 147, 156 (7 E. C. L. R.); and see Keane v. Boycott, 2 H. Black. 511, 514, 515. WATEES V. TAYLOR. 461 An alien friend may undoubtedly contract a partnership in this country, but an alien enemy, or a person domiciled in an enemy's country, cannot do so, indeed, as we shall, hereafter see, a war breaking but between the countries of two partners, of itself effectu- ally dissolves the partnership. See M'Oonnell v. Hunter, 3 B. & P. 113; Albretcht v. Sussmann, 2 Ves. & B. 323; O'Mealey v. Wilson, 1 Camp. 482, and the cases in the note thereto. At common law a married woman is disabled from entering into the contract of partnership : Cosio v. De Bernales, R. & M. 102 (21 E. C. L. R.); 1 C. & P., 266 (12 B. C. L. R.), ante, p. 249. She may however do so under a special custom, as by the custom of London (Beard v. Webb, 2 Bos. & Pul. 98), — upon the civil death of her husband in consequence of profession or abjuration (Beard v. Webb, 2 Bos. & Pul. 93, 105; Lean v. Shutz, 2 Wm. Bl. 1199), upon the suspension of his martial rights by transportation for a term of years (Sparrow v. Carruthers, cited 2 Wm. Bl. 1197 ; 1 Term Rep. 6, 7; 1 Bos & Pul. 369; .Carroll v. Blencow, 4 Esp. 27 ; Marsh v. Hutchinson, 2 Bos. & Pul. 231), or, in case the hus- band be a foreigner, if he has never come within the realms : De Gaillon V. L'Aigle, 1 Bos. & Pul. 357; Kay v. Duchesse de Pienne, 8 Camp. 123. \ In equity if a woman is possessed of separate property, she may, it is conceived, enter into a contract of partnership so as to bind such property, although it would not be binding as against herself personally.- See Hulme v. Tenant, 1 Leading Cas. Eq., 3d ed., p. 435, and note. So likewise a married woman, after a judicial separation from her husband under the Divorce 'and Matrimonial Causes Act, 20 & 21 Vict. c. 85, can, it is presumed, as long as the separation continues, enter into the contract of partnership. See sect. 26 ; Macqueen on Div. and Matrim. Jurisdict. 63. It is essential to the contract of partnership that each of the partners should put or contract to put something into the partner- ship ; either money, effects, labor, or skill. But it is not necessary that what each of the contracting parties puts or contracts to put into the partnership should be of the same Jiature. If one brings, or promises to bring, money or goods, it is not necessary that the other *should in like manner bring the same; and it is suffi- cient that he should contribute his labor and industry. See ^ 462 CRAWSHAT v. MAULE. Poth. Partnership, by Tudor, p. 6 ; Peacock v. Peacock, 16 Ves. 49 ; Eeid V. Hollinshead, 4 B. & C. 878 (10 E. C. L. R.)- The Eoman law was the same, according to which it is said "Socletatem uno pecrtoiam conferente, alio operam posse contrahi magis obtinuit:" L. i. Ood. Pro. Soc, Cod. 4, tit. 37, 1. 1. If there be any stipulation with regard to the property in the capital stock, either express or implied, such stipulation will of course be binding upon the partners : Ex parte Owen, 4 De G. & Sm. 351. If there be no such -stipulation, and no implication from the cir- cumstances of the particular case leading to a different conclusion, there will be presumed to be a community of interest in the property as well as in the profit and loss : Story Partn. § 27 ; Baxter v. New- man, 8 Scott N. R. 1019; Farrar u. Beswick, 1 Mood. & Rob. 527; Collins V. Jackson, 31 Beav. 645 ; Nelson v. Bealby, 30 Beav. 472. A partnership may exist in the capital stock, although the whole price is in the first instance, advanced by one party, the other con- tributing his time and skill and security in the selection and pur- chase of the stock. Thus in Reid v. Hollinshead, 4 B. & C. 867 (10 E. C. L. R.),'A., a merchant in London, by letter directed B., a broker in Liverpool, to purchase lt)00 bales of cotton, and stated that B. was to be allowed to be one-third interested therein, acting in the business free of commission. B. agreed to purchase the cot- ton, and to hold one-third interest therein, charging no commission. B. purchased the cotton, and in the subsequent correspondence, which continued for upwards of three months, the transaction was referred to as a joint account, joint concern, joint purchase, joint speculation, joint cotton adventure. B. transrnitted policies of in- surance against loss by fire to A. and stated that the cotton was deposited in rooms rented by him (B.), and that he held the key for their joint security. It was held by the Court of King's Bench that B. was interested as a partner in the cotton, and consequently that a pledge of the whole by him, without any fraud or collusion on the part of the pawnee, gave the pawnee a right to hold the goods against A. An agreement by a person purchasing goods that another shall be interested in a certain proportion of the profits and loss of their sale, will not give the latter any property in the goods. Thus in Smith V. Watson, 2 B. & C. 401 (9 E. C. L. R.), an agreement was WATEKS V. TAYLOR. 463 entered into between A., a merchant, and B., a broker, that the latter should purchase goods for the former, and in lieu of brokerage should receive for his trouble a certain proportion of the profits arising from the sale, and should bear a proportion of the losses. It was held by the Court of Kings's Bench that B. was not entitled to any share in the *property so purchased, or in the pro- ceeds of it, although the agreement might render him liable •- as a partner to third persons. "A right to share in the profits of a particular adventure," said Bayley, J., "may have the effect of rendering a person liable to third persons as a partner, in respect of transactions arising out of the particular adventure in the profits of which he is to participate ; but it does not give him any interest in the property itself, which was the subject-matter of the adven- ture." See also Meyer v. Sharpe, 5 Taunt. 74 (1 E. C. L. R.); Hesketh v. Blanchard, 4 East 144 ; Ex parte Hamper, 17 Ves. 404 ; Mair D. Glennie, 4 M. & Selw. 240. It is often a very important question to ascertain whether a partner has a property in the capital stock, for if he has he can pledge it (Reid V. Hollingshead, 4 B. & C. 867 (10 E. C. L. R.); whereas if he has an interest only in the profits be has not such power, and if he is a mere part-owner he can of course only pledge his own share. A partnership must moreover be constituted for some lawful pur- pose. Thus if it be for an immoral object, as for the keeping of a house of ill-fame (Poth. Partn. by Tudor, p. 11), or a gambling-house (Watson V. Fletcher, 7 Gratt. 1), or if it be in contravention of an act of parliament (Gordon v. Howden, 12 CI. & Fin. 237 ; and see Armstrong v. Lewis, 2 C. & M. 274 ; 3 Myl. & K. 53), it will be void. Upon the same principle in the recent case of Hunter v. Wykes, 15 W. R. 125, the plaintiff brought an action against the defendant for a breach of contract in not taking him into partnership on a certain day. The defendant pleaded that he was a broker within 6th Anne, c. 16, and 67 Geo. III., and that on the said day, the plain- tiff had not been admitted a broker pursuant to those acts. On de- murrer it was held by the Court of Queen's Bench to be a good plea. "When," said Cockburn, 0. J., "a man enters into partner- ship with another as a broker, it is plainly implied that he should be able to act as a broker, so that both parties might take their fair share of the work of the business in earning the profits. Here 464 CKAWSHAY v. MAULE. there were duties on the exchange, therefore it was incumbent on the plaintiff to do all those out-of-door duties, to do which, in order that the law might not be violated, it was necessary that he should be admitted a broker. The defendant in his plea says, that inasmuch as if he had taken the plaintiff as a partner, the plaintiff could not have acted as a broker without a breach of the law, and that if the defendant had suffered the plaintiff so to act, there would have been a breach of the law by the defendant as well as by the plaintiff; that he the defendant was not bound to receive the plaintiff into partner- ship. That being so, showed that the plaintiff was not legally quali- fied to act, and that the defendant could not permit him to do so „ ,„^ without a breach of the law. The ^defendant therefore, is *3401 . . -^ entitled to judgment." Another thing essential to the formation of the contract of part- nership, at any rate as between the parties themselves, is that there should be a communion of the profits arising therefrom between the parties to the contract, which ordinarily implies a communion of loss : Dry V. Boswell, 1 Camp. 329 ; Radcliffe v. Rushworth, 33 Beav. 484. But any partner may enter into a stipulation with his co-partners, that he shall be free from loss, and that will be binding as between him and them (Fereday v. Hornderne, Jac. 144 ; Gilpin v. Enderby, 5 B. & Aid. 954 (7 E. 0. L. R.); Bondi;. Pittard, 3 M. & W. 357 ; Reade v. Bentley, 4 K. & J. 663); though his liability to strangers will not be thereby affected : Waugh v. Carver, 2 H. Bl. 285 ; 1 Smith's L. Cases 726, 4th ed. Although it is clear where there is a community of interest in the capital stock and also a community of profits, that there exists a partnership between the parties themselves (Ex parte Gella, 1 Rose 297 ;■ Rawlinson v. Clarke, 15 M. & W. 292), it is not essential to constitute a partnership even between the parties themselves that there should be a communion of interest in the capital stock. For although the whole capital stock is contributed by one party and by contract is to remain his property exclusively, nevertheless, if there is between them a community of profit or of profit and loss, they will be partners both as regards themselves individually and with regard to third parties : Ex parte Hamper, 17 Ves. 404. In the absence of any express stipulation or evidence (Warner v. Smith, 1 De G., J. & Sm. 337) showing the intention of the parties, partners will participate equally in the profits and losses of the con- WATEES V. TAYLOR. 465 cern. See Peacock v. Peacock, 16 Ves. 49, in whicli case a father having taken his son into partnership without any express stipula- tion as to the share he was to have in the concern, upon an issue directed by Lord Eldon, which was tried before Lord Ellenborough, the jury held the son entitled to a fourth part of the profits (2 Campb. 45). On the case coming back to Lord Eldon, it was unnecessary for him to decide the question, as the parties considered themselves bound by the verdict, but he made the following comments in disapproval of it: — "The father," said his Lordship, "employed his son in his business ; and as is frequently done by a father, meaning to introduce his son, 'the business was carried on in the name of "Peacock & Co." It appeared to me that the son, insisting that he had a bene- ficial interest, must be entitled to an equal moiety, or to nothing ; that as no distinct share was ascertained by force of any express contract between them, they must of necessity be equal partners if partners in anything. In that view, the result of the issue that was directed appears to be extraordinary. The proposition being that the son was interested in some *share, not exceeding a [-*q4.i moiety, the jury, in some way upon the footing of quantum meruit, held him entitled to a quarter. I have no conception how that principle can be applied to a partnership." In Farrar v. Bes- wick, 1 Mood. & Rob. 527, Mr. Justice Parke held the same opinion as Lord Eldon ; as did also Lord Cottenham, in Stewart v. Forbes, 1 Macn. & Gr. 146; and Sir J. Wigram, V.-C, in Webster v. Bray, 7 Hare 159, 179. There the question to be decided was in what shares two persons who had accepted the oflSce of solicitors to a railway company were entitled in the emoluments, when they had made no arrangement as to the division of the business or the emolu- ments of the ofiice, and a much larger portion of the work was done by the defendant than the plaintifi". Sir James Wigram, V.-C, said, " In the absence of previous arrangement between the parties, the remuneration to be paid to either for personal labor exceeding, /that contributed by the other, must be left to the honor of the other; that where that principle was wanting, a court of justice could not supply it, and that equality in the division of the profits would be the rule." See also Robinson v. Anderson, 20 Beav. 98;. 7 De G., M. & G. 239. The law of Scotland, however, differs from that of England upon the point now in discussion, for it has been held by the House of 30 466 CKAWSHAY v. MAULB. Lords that where there is no express contract between partners, it is not according to the law of Scotland a necessary presumption of law that the profits are to be divided in equal shares. But it is a question for a jury, upon evidence of all the circumstances, such as goodwill, skill, capital and labor, what the proportion of interest in the loss and profit should be : Thompson v. Williamson, 7 Bligh N-. S. 432. Although the contract of partnership itself does not determine in what proportion the partners are to participate in the profits of the business, it may be inferred from their dealings, as, for instance, from the entries in the partnership books, so as to rebut the ordi- nary presumption of equality. See Stewart v. Forbes, 1 M. &. G. 137 (39 E. 0. L. R.), where Lord Cottenham, 0., said, " The plaintiff puts this case in his bill, and his argument rests upon the supposition, that from 1830 to 1840 Sir Charles Forbes and the plaintifi" were equal partners ; and Peacock v. Peacock was relied on as a foundation for that assumption. In that case it was properly held, that in the absence of any contract between the parties, or any dealings from which a contract might be inferred, it would be assumed that the parties had carried on their business on terms of an equal partner- ship. That case has no application to the present, because there is in this case conclusive evidence, not from any form of contract, but from the books of the business, and the dealings between the parties^ that such were not the terms on which the parties carried on their business. An equal partnership implies not *only "J an equal participation de facto in the profits and loss, but a right in each partner to claim and insist on such participation. But what would have been the decision in Peacock v. Peacock, if the books and accounts, instead of absolute silence as to the shares of the partner in each year, had described the shares in which the partners were entitled in the business, and had attributed to the plaintiff four-sixteenths only of the shares of the business ? These entries are as conclusive of the rights of the parties as if they had been found prescribed in a regular contract." An important question may be raised, when the whole of the capital belongs to one partner, or he has advanced a larger amount of capital than he was bound- to do according to the partnership contract, whether, in the absence of any stipulation he shall be WATERS V. TAYLOR. 467 allowed any interest for such capital, beyond his share in the profits. It seems, however, that as a general rule, in the absence of any agreement, or a usage from which an agreement may be inferred, partners are not entitled as against the firm to interest upon the capital which they may have respectively brought in (Cooke v. Benbow, 3 De G., J. & Sm. 1 ; Millar v. Craig, 6 Beav. 433 ; and see Watney v. Wells, 2 Law Rep. Ch. App. 250), and the rule is the same even in the case where one partner has brought in the capital he had agreed so to do, and the other has neglected to do so : Hill V. King, 1 N. R. (L. C.) 161, 341. Where, however, interest is payable on capital, it will be allowed until actual repayment, and not merely up to the day of the disso- lution of the partnership : Pilling v. Pilling, 3 De G., J. & Sm. 162. Interest, however, is payable on advances made bond fide by a partner to the firm for the purposes thereof, at all events, when made with the knowledge of the partners : Ex parte Chippendale, 4 De G., M. & G. 36 ; Ex parte Bignold, 22 Beav. 167 ; Troup's Case, 29 Beav. 353 ; Re Magdalena Steam Navigation Company, Johns. 690. The rate allowed, unless a different rate is ordinarily paid by the custom of the trade (Fergusson v. Fyffe, 8 CI. & Fin. 121 ; Bate V. Robins, 32 Beav. 73), or of that particular partnership (Re Mag- dalena Steam Navigation Company, Johns. 690), is simple interest at 51. per cent. : Ex parte Bignold, 22 Beav. 167 ; Troup's Case, 29 Beav. 353. As a general rule, however, a partner is not charged with in- terest on balances in his hands, or on sums drawn out or advanced to him (Webster v. Bray, 7 Hare 159 ; Cooke v. Benhow, 3 De G., J. & Sm. 1 ; Meymott v. Meymott, 31 Beav. 445 ; Rhodes v. Rhodes, Johns. 653 ; 6 Jur. N. S. 600 ; Stevens v. Cook 5 Id. 1415), unless he has fraudulently retained (Hutcheson v. Smith, 5 Ired. Eq. 117) or improperly applied the money of the firm : r+o^^Q Evans *v. Coventry, 8 De G., M. & G. 835. "- A surviving partner may disentitle himself to interest by his hav- ing kept the accounts so badly that it was impossible for a long time to ascertain the balance due to him from his deceased partner: Boddam v. Ryley, 1 Bro. C. C. 239 ; 2 Bro. 0. C. 2 ; 4 Bro. P. C. 561. 468 CRAWSHAT v. MAULE. 2. lAability of persons as partners to third parties, though not partners inter se — quasi partnership. — A person who is not a part- ner may make himself liable as one to third persons in two ways — 1st, By sharing profits ; 2d, By holding himself out as a partner. 1st. Liability as a partner hy sharing profits. — As the law upon this "subject" has been considerably modified and altered by the important decision of Cox v. Hickman, 8 H. L. Cas. 268, in the House of Lords, and by the Act 28 & 29 Vict. c. 86 (both of which will be hereafter noticed), it will be more convenient briefly to refer to the result of the decisions' prior thereto. As to the law before Qox v. Hichman and 28 & 29 Vict. c. 86. — According to the old decisions as we have before observed, a per- son may be a partner, although he has no community in the partner- ship stock, if he is entitled to a share of the profits. But Where he has a share in the profits, he may not be a partner so far as the firm is concerned, if it was intended that he should be a mere agent or clerk, although he may nevertheless be considered a partner so far as third parties are concerned. A diflSculty often arises in ascertain- ing whether a contract for the payment of a salary dependent on the amount of the profits of a concern makes the recipient a partner or a mere agent. The cases upon this subject, in which very refined distinctions are taken, are ably reviewed in 1 Smith's Leading Cas. 740, 4th ed., and the learned author comes to the conclusion that whenever it appears that the agreement was intended by the part- ners themselves as one of agency or service, and the agent or servant is to be remunerated by a portion of the profits, then the contract would be considered as between themselves one of agency (Geddes V. "Wallace, 2 Bligh 270 ; E,. v. Hartley, Buss. & By. 139) ; but as be- tween them and third persons as one of partnership : Smith v. Watson, 2 B. & C. 407 (9 B. C. L. B.) ; Ex parte Bowlandson, 1 Eose 91 : Green v. Beasley, 2 Bing. N. C. 110 (29 E. C. L. B.) ; Ex parte Langdale, 18 Ves. 300. If, however, the agent or servant is to be remunerated not by a portion of the profits, but by part of a gross fund or stock which is not altogether composed of the profits, the contract even as against third persons will be one of agency, although that fund or stock may include the' profits, so that in value, and the quantum of the agent's reward, will necessarily fluctuate with their fluctuation (Dry v. Boswell, 1 Campb. 329, 830 ; Cheap v. Cra- WATEKS V. TAYLOK. 469 mond, 4 B. & Aid. 663, 670 (6 E. C. L. R.); *Waugh v. p^„.. Carver, 2 H. Bl. 236, 246, 247 ; Saville v. Robertson, 4 •- Term Rep. 720 ; Bond v. Pittard, 3 M. & W. 357 ; Pearson v. Skelton, 1 M. & W. 504) ; and it seems that where the agent or servant is not to receive a part of the profits in specie, but a sum of money calculated in proportion to a given quantum of the profits, he will not be a partner even as to third persons : Ex parte Ham- per, 17 Ves. 404, 412 ; Ex parte Watson, 19 Ves. 461 ; and see Grace v. Smith, 2 Wm. Black. 998 ; Pott v. Eyton, 3 C. B. 32 (54 E. 0. L. R.) ; Barry v. Nesham, 3 0. B. 641 ; Withington v. Her- ring, 3 M. & P. 30 ; Stocker v. Brockelbank, 3 M. & G. 250 (42 E. C. L. R.) ; R. v. Macdonald, 7 Jur. N. S. 1127 ; Harrington V. Churchward, 6 Jur. N. S. 576. The option to become a partner and receive a share of the profits of a concern, even from a time past, is not of itself alone, and while it remains unexercised, suflScient to make the person having such option a partner: Gabriel v. Evill, 9 M. & W. 297; C. & M. 358 ; Ex parte Turquand, 2 M., D. & D. 340 ; Wilson v. White- head, 10 M. & W. 503. See Courteney v. Wagstaff, 16 C. B. N. S. 110 (111 E. C. L. R.). A person receiving interest or an annuity, fixed as to amount and duration, for money lent to a firm, is not a partner, because he has no mutuality in the profits with the firm (Grace v. Smith, 2 Sir W. Black. 998) ; but if he received an annuity out of (Bond v. Pittard, 3 M. & W. 357, 361; Ex parte Wheeler, Buck 25; Ex parte Chuck, 8 Bing. 469 (21 E, C. L. R.) ; Ex parte Hamper, 17 Ves. 404, 412) or in lieu of the profits of a trade, or determinable on the cessation of the trade (Bloxham v. Pell, 2 Wm. Black. 999), or an annuity (Young v. Axtell, cited 2 H. Black. 242 ; Ex parte Wheeler, Buck 25), or a rate of interest (Ex parte Chuck, 8 Bing. 469 (21 E. C. L. R.), although it be contingent (Ex parte Wilson, Buck 48), fluctuating with the trade of the profits, be will be considered to be a partner. See Coll. Part. 26-29 ; Story Part. § 30-§ 70. The reason given why in these cases, when it is held there is a community of profits, the person receiving a salary, an annuity, or interest, is considered to be a partner, is, that by taking a part of the profits he takes from the creditors a part of the fund which is their proper security for payment to them of their debts : Waugh v. 470 CRAWSHAY v. MAULE. Carver, 2 H. Black. 235 ; Barry v. Nesham, 16 L. J. (C. P.) 21. And it is upon this ground that a, -dormant partner, that is to .say, one who, without being known to third parties as a partner, receives a share of the profits of the firm, is liable for its engagements : Robinson v. Wilkinson, 3 Price 538 ; Wintle v. Crowther, 1 C. & J. 316. Departure in Oox v. Hickman from the rule as to the effect of sharing profits. — In the important case of Cox v. Hickman, 8 H. L. Cas. 268, the principles upon which those cases which decide that the mere participation in the profits of *a concern is the J test for determining whether a person is liable to third persons as a partner, have been departed from, and it was laid down, in a judgment deserving a most careful perusal, that "it is not strictly correct to say that a person's right to share in the profits makes a person liable to the deb.ts of the trade ; but that the correct mode of stating the proposition is to say that the same thing which entitles him to the one renders him liable to the other, namely, the fact that the trade has been carried on on his behalf, i. e. that he stood in the relation of principal towards the persons acting osten- sibly as traders, by whom the liabilities have been incurred, and under whose management the profits have been made :" per Lord Cranworth in Cox v. Hickman, 8 H. L. Cas. 306. Hence it was held in that case that the mere concurrence of creditors in an arrangement under which they permitted their debtor, or trustees for their debtor, to continue his trade, applying the profits in dis- charge of their demands, did not make them partners with their debtor, or the trustees. The material facts of Cox v. Hickman were as follows : — B. Smith and J. T. Smith, trading in the name of Smith & Son, becoming embarrassed, executed a deed to which they were parties of the first part ; five of the creditors (of whom Cox and Wheatcroft were two) as trustees of the second part ; and the general scheduled creditors (among whom the trustees were named) of the third part. The deed assigned the property of Smith & Son to the trustees, and empowered the trustees to carry on the business under the name of " The Stanton Iron Company," to execute all contracts and instru- ments necessary to carry it on, to pay out of the gross income the rent of the business premises, interest of a moiety of the debt, and the expenses of carrying on the business, and to divide the net in- WATEKS V. TAYLOR. 471 come of the business remaining after answering the aforesaid pur- poses, unto and among the creditors of the Smiths, and each of them in rateable proportions, according to the amount of their respective debts; but it was provided that in distributing such net income the same should be deemed and taken to be the joint property of the Smiths. ■ There was also a power to the majority of the creditors, assembled at a meeting, to make rules for conducting the business, or to put an end to it altogether ; and after the debts had been dis- charged, the property was to be re-transferred by the trustees to the Smiths. Cox, one of the five trustees, never acted. Wheat- croft acted for six weeks, and then resigned. Some time afterwards, the other trustees, who continued to carry on business, became in- debted to Hickman for goods supplied to the Company, in payment for which they accepted bills of exchange (drawn by Hickman), "per proc. the Stanton Iron Company." The bills having been dishonored, an action was brought against Cox and Wheatcroft, charging them as partners in the *concern, either as being trustees or creditors for whose benefit the business was car- L ried on, or as being persons who had been held out as partners. The cause was tried in 1856, before Jervis, C. J., when a verdict was found for the defendants ; but on motion on leave reserved, the verdict was entered for the plaintifl": Hickman v. Cox, 18 C. B. 617 (86 E. C. L. R.). The case was taken to the Exchequer Chamber, where the judges being equally divided, the judgment of the Com- mon Pleas was afiirmed : Hickman v. Cox, 3 C. B. N. S. 523 (91 E. C. L. R.). Upon the case coming on to be heard in the House of Lords, the judges consulted were again equally divided. "Their lordships, how- ever, were unanimously of opinion, that there was no partnership created by the deed, so far as regarded the scheduled creditors, and that the defendants (who were not liable as trusteesj could not be sued as scheduled creditors as partners in the company. The grounds upon which the decision proceeded are very clearly stated by Lord Wensleydale. "A man," says his lordship, "who allows another to carry on trade, whether in his own name or not, to buy and sell, and to pay over all the profits to him, is undoubtedly the principal, and the person so employed is the agent, and the prin- cipal is liable for the agent's contracts in the course of his employ- ment. So, if two or more agree that they should carry on a trade. 472 CRAWSHAY v. MAULE. and share the profits of it, each is a principal and each is an agent for the other, and each is bound by the other's contract in carrying on the trade, as much as a single principal -would be by the act of an agent who had to give the whole of the profits to his employer. Hence it becomes a test of the liability of one for the contract of another, that he is to receive the whole or a part of the profits arising from that contract, by virtue of the agreement made at the time of the employment. I believe this is the true principle of partnership liability. Perhaps the maxim that he who partakes the advantage ought to bear the loss, often stated in the earlier cases on this subject, is only the consequence, not the cause, why a man is made liable as a partner. Can we then collect from the trust- deed that each of the subscribing creditors is a partner with the trustees, and by the mere signature of the deed constitutes them his agents for carrying on the business on the account of himself and the rest of the creditors ? I think not. It is true that by this deed the creditors will gain an advantage by the trustees carrying on the trade ; for if it is profitable, they may get their debts' paid ; but this is not that sharing of profits which constitutes the relation of principal, agent, and partner. If a creditor were to agree with his debtor, to give the latter time to pay his debt, till he gq^; money enough out of his trade to pay it, I think no one could reasonably contend that he thereby made him his agent, to contract debts in the way of his trade ; nor do I think that it would make any *^471 *<^iff6rence, that he stipulated that the debtor should pay the debt out of the profits of the trade. The deed in this case is merely an arrangement by the Smiths to pay their debts, partly out of the existing funds, and partly out of the expected profits of their trade, and all their efi'ects are placed in the hands of the trustees as middlemen between them and their '^creditors, to efiFect the object of the deed — the payment of their debts. These effects are placed in the hands of the trustees as the property of the Smiths, to be employed as the deed directs, and to be returned to them when the trusts are satisfied. I think it is impossible to say that the agreement to receive this debt, so secured, partly out of the existing assets, partly out of the trade, is such a participation of profits as to constitute the relation of principal and agent between the creditors and trustees. The trus- tees are certainly liable, because they actually contract by their WATERS V. TAYLOR. 473 undoubted agent ; but the creditors are not, because the trustees are not their agents." Upon the same principle, in The English and Irish Church and University Assurance Society, 1 Hem. & Mill. 85, it was held by Sir W. Page Wood, V.-C, that the holder of a policy of assurance was not liable as a partner with the members of the society, either to the holders of other policies issued by it, or to its other creditors, because he was entitled to be paid, in addition to the sum assured, such further sums as should be appropriated by way of bonus or addition thereto. See also Kelshaw v. Jukes, 3 B. & S. 847 (113 E. C. L. R.)', Bullen v. Sharp, 1 Law Rep. C. P. 86; Shaw v. Gait, 16 Ired. Com. Law Rep. 357. Further Ihnitation of the rule as to the effect of sharing profits by 28 ^ 29 Vict. c. 86. — The liability which according to the decisions (especially those before Cox v. Hichman) was incurred by persons sharing the profits of a concern, has been to a certain extent limited by the recent Act of 28 & 29 Vict. c. 86, entitled "An Act to Amend the Law of Partnership." By this Act, which received the royal assent on the 5th July, 1865, it is enacted that, " The advance of money by way of loan to a person engaged, or about to engage, in any trade or undertaking upon a contract in writing with such person that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on such trade or under- taking, shall not, of itself, constitute the lender a partner with the person or the persons carrying on such trade or undertaking, or render him responsible as such." (Sect. 1.) "No contract for the remuneration of a servant or agent of any person engaged in any trade or undertaking by a share of the profits of such trade or undertaking, shall, of itself, render such servant or agent responsible as a partner therein, nor give him the rights of a partner." (Sect. 2.) *"No person being the widow or child of the deceased r*q4Q partner of a trader, and receiving by way of annuity a por- tion of the profits made by such trader in his business, shall by rea- son only of such receipt, be deemed to be a partner of or to be subject to any liabilities incurred by such trader." (Sect. 3.) "No person receiving by way of annuity or otherwise a 474 CEAWSHAY v. MAULE. portion of the profits of any business, in consideration of the sale by him of the goodwill of such business, shall- by reason only of such receipt, be deemed to be a partner of or to be subject to the liabilities of the person carrying on such business." (Sect. 4.) "In the event of any such trader as aforesaid being adjudged a bankrupt, or taking the benefit of any Act for the relief of insol- vent debtors, or entering into an arrangement to pay his creditors less then twenty shillings in the pound, or dying in insolvent cir- cumstances, the lender of any such loan as aforesaid shall not be entitled to recover any portion of his principal, or of the profits or interest payable in respect of such loan, nor shall any such vendor of a goodwill as aforesaid be entitled to recover any such profits as aforesaid untU the claims of the other creditors of the said trader for valuable consideration in money or money's worth have been satisfied." (Sect. 5.) "In the construction of this Act the word 'person' shall include a partnership firm, a joint stock company, and a corporation." (Sect. 6.) Liability from a person holding himself out as a Partner. — ^If a person allow his name to be used in a business, or in any way hold himself out to the world as a partner in a firm, although he does not share the profits or losses (Ex parte Watson, 19 Ves. 461; Kirkwood v. Cheetham, 2 Fos. & Fin. 798), he will, as regards third parties, be equally .liable as if he were actually one (Ex parte Wat- son, 19 Ves. 459, 461 ; Fox v. Clifton, 6 Bing. 776 (19 E. C. L. R.); Parker v. Barker, 1 B. & B. 9 (5 E. C. L. R.); Goode v. Harrison, 5 B. & Aid. 147 (7 El C. L. R.); Bond v. Pittard, 3 Mees. & W. 357; Bonfield «;. Smith, 12 Mees. & W. 405; Waugh V. Carver, 2 H. Black. 235; Young v. Axtell, Id. cited 242; Gur- ney v. Evans, 3 Hurlst. & N. 122; Baird v. Planque, 1 F. & F. 344; Edmundson v. Thompson, 2 F. & F. 564; 8 Jur. (N. S.) 235 ; Radcliffe v. Rushworth, 33 Beav. 484), and it is not necessary that such person should be identified by his Christian and surname : it will be enough that he should be so pointed at as to be distinctly identified : Martyn v. Gray, 14 C. B. N. S. 824, 839 (108 E. C. L. R.); and see Maddick v. Marshall, 16 C. B. N. S. 378 (111 E. C. L. R.); 17 Id. 829 (112 E. C. L. R.). And it is immaterial whether the person holding himself out as a partner was induced by WATERS V. TAYLOR. 475 fraud so to hold himself out as a partner: Ellis v. Schmaech, 5 Bing, 521 (15 E. C. L. R.) ; Ex parte Broome, Rose 691 ; CoUing- YTOod^;. *Berkeley, 15 C. B. N. s! 145 (109 E. C.L.R.); [-^„.q Maddick v. Marshall, 16 C. B. N. S. 387 (111 E. C. L. R.); '- 17 Id. 829 (112 E. C. L. R.). And a person may be liable even though it be known that he does not share the profits and losses : Brown v. Leonard, 2 Chit. 120 (18 E. C. L. R.); but see Alderson V. Pope, 1 Campb. 404, note. A person will not be liable for having held himself out as a part- ner, unless the holding out was an act (tone by himself, or by others by his authority, expressed or implied, and unless it was made known to the person seeking to render him liable as a partner (Fox V. Clifton, 6 Bing. 776 (19 E. C. L. R.) ; Pott v. Eyton, 3 C. B. 32 (54 E. C. L. R.) ; Newsome v. Coles, 2 Campb. 617 ; Edmund- son V. Thompson, 2 F. & F. 564 ; 8 Jur. N. S. 285 ; Cornelius V. Harris, 2 F. & F. 758) before the contract was entered into with respect to which the question of liability arises : Baird v. Planque, 1 F, & F. 344, The continuation, however, of the business on the death of a partner by the survivor in the old name, will not constitute such a holding out, even to the old customers or correspondents of the firm, as will render the executor liable for the acts done by the surviving partner after the decease of his co-partner (Webster v. Webster, 3 Swanst. 490 ; Devaynes v. Noble (Houlton's Case), 1 Mer. 616 ; Vulliamy v. Noble, S Id. 614), but the result might be different if the surviving partner using the old name were the ex- ecutor, as he might thereby render the estate liable : Vulliamy v. Noble, 3 Mer. 614. 3. Liabilities of Partners. — One partner by virtue of the rela- tion of partnership is constituted a general agent for another as to all matters within the scope of the partnership dealings, and has communicated to him by virtue of that relation all authorities necessary for carrying on the partnership, and all such as are usually exercised by partners in that business in which they are engaged. Any restriction which by agreement amongst the part- ners is attempted to be imposed upon the authority which one pos- sesses as a general agent for the other, is operative only between the partners themselves, and does not limit the authority as to 476 CKAWSHAY v. MAULE. third persons who acquire rights by its exercise, unless they know that such restrictions have been made : Hawken v. Bourne, 8 M. & W. 710. This is a good summary of the law on this branch of the subject, but for further information relating to it the reader is re- ferred to the case of Sandilands v- Marsh, ante, p. 285, and note. The liability of one partner for the acts and dealings of the others begins with the commencement of the partnership, and it is immaterial that the deed of partnership was not signed when the alleged liability occurred, if the parties had then acted as partners : Battley v. Lewis, 1 M. & G* 155 (39 E. C. L. R.) ; 1. Scott N. R. 143. He is not liable to third parties for contracts made previous *to the commencement of the partnership (Catt v. Howard, ^^"J 3 Stark. 5 (3 E. C. L. R.) ; Saville v. Robertson, 4 Term Rep. 720 ; Fox v. Clifton, 6 Ring. 776 (19 B. C. L. R.)), even although it may have been agreed by the partners among them- selves that the partnership was to have a retrospective operation, so as to relate back previous to the creation of the alleged liability ; " for although the retrospective date of the partnership may affect the account between the partners, it will not affect the rights of third persons :" Vere v. Ashby, 10 B. & C. 288, 298 (21 E. 0. L. R.); Young V. Hunter, 4 Taunt. 682 ; Dickinson v. Valpy, 10 B. & C. 142 (21 E. C. L. R.). Nor is a person liable for goods furnished while he was a member of a firm under a contract made before he became one : Whitehead V. Barron, 2 M. & R. 248 ; Beale u. Mouls, 10 Q. B. 796 (59 E. C. L. R.). If a person agree to become a partner at a future time with others, provided other persons agree to do the same, and advance stipulated portions of capital, or provided any other previous con- ditions are performed, he gives no authority at all to any other in- dividual, until all those conditions are performed. If any of the other intended partners in the meantime enter into contracts, it seems to be clear that he is not bound by them, on the simple ground that he has not authorized them (always supposing that he has not held himself out, directly or indirectly; to the party with whom the contracts are made, as having in substance given that authority) : per Parke, J,, in Dickinson v. Valpy, 10 B. & 0. 142 (21 E. 0. L. R.) ; see also Howell v. Brodie, 6 Bing. N. C. 44 WATEKS V. TAYLOn. 477 (36 E. C. L. R.) ; Hawken v. Bourne, 8 M. & W. 703 ; Gabriel v. Evill, 9 Id. 297 ; Barnett v. Lambert, 15 Id. 489. Another important question is, when does the liability of a per- son who has entered into a partnership cease with regard to third parties, for the acts of the firm ? In the case of an ostensible partner it is clear that after he has retired from the partnership, and given proper notice of the disso- lution, although he will be liable for previous (Wood v. Braddick, 1 Taunt. 104 ; Ault v. Goodrich, 4 Russ. 430), he will not be liable for the subsequent (Finder v. Wilks, 5 Taunt. 612 (1 B. C. L. R.) ; Abel V. Sutton, 3 Esp. 108 ; Wrightson v. Pullan, 1 Stark. 375 (2 E. 0. L. R.) ; Heath v. Sansom, 4 B. & Ad. 177 (24 E. C. L. R.)) contracts of his late partners. If however he has not given proper notice he will be liable for all contracts made even after his retirement, for it is but just that as he holds himself out to the world as being still a member of a firm, he should be responsible for its engagements : Parkin v. Carruthers, 3 Esp. 248 ; Stables v. Eley, 1 C. & P. 614 (12 E. 0. L. R.) ; Graham v. Hope, 1 Peake 154. With regard to what is proper notice, it seems that notice in "The Gazette" of the dissolution of partnership is sufficient as against parties who have not previously dealt with the firm : God- frey V. Turnbull, 1 Esp. 371 ; Wrightson v. Pullan, 1 Stark. 375 (2 E. C. C. R.) ; but actual notice should be sent to those rMcoc-i *with whom the firm has had dealings (Graham v. Hope, 1 Peake 154 ; Kirwan v. Kirwan, 2 C. & M. 617 (41 E. C. L. R.) ; 4 Tyrw. 491) ; and this is generally done by means of a circular letter : Newsome v. Coles, 2 Oampb. 617 ; Jenkins v. Blizard, 1 Stark. 418 (2 E. C. L. R.) ; M'lver v. Humble, 16 East 169 ; Ex parte Burton, 1 G. & J. 207 ; Ex parte Leaf, 1 Deac. 176. Although notice may not have been expressly given, it will under certain circumstances be presumed. Thus where a change had taken place in names of the firm in the printed checks of a banking- house, it was held that it was a sufficeint notice to the customers of a change in the firm : Barfoot v. Goodall, 3 Campb. 147 ; Hart v. Alexander, 2 M. & W. 484. Although a person may have given notice of his retirement from a firm, he will still continue liable if he permits his name to be used by his late partners, where, for instance, he allows his name to re- 478 CEAWSHAY v. MAULE. main on the door of the house of business : "Williams v. Keats, 2 Stark. 290 (3 E. C. L. R.); Dolman v. Orchard, 2 0. & P. 104 (12 E. C. L. R.) ; Brown v. Leonard, 2 Chit. 120 (18 E. C. L. R.); Smith V. Winter, 4 M. & W. 454 ; Faldo v. Griffin, 1 F. & F. 145; but he will not be liable if his name is used by his late part- ners without his authority : Newsome v. Coles, 2 Campb. 617. A dormant partner is only chargeable with respect to the Uabili- ties of the firm contracted when he was actually a partner, receiving the emoluments and profits of the business ; and it is not necessary for him to give notice of his retirement (Evans v. Drummond, 4 4 Esp. 89, 90 ; Heath v. Sansom, 4 B. & Ad. 177 (24 E; C. L. R.); Brooke v. Enderby, 2 B. & B. 71 (6 E. C. L. R.)) except to those who were aware of his being a partner ; for unless notice of his re- tirement be given to such persons he will be liable for debts con- tracted by the firm after his retirement : Farrar v. Deflinne, 1 C. & K. 580 (47 E. C. L. R.) ; Evans v. Drummond, 4 Esp. 89 ; Heath V. Sansom, 4 B. & Ad. 177 (24 E. C. L. R.) ; Carter v. Whalley, 1 B. & Ad. 11 (20 E. C. L. R.) ; Edmundson v. Blakey, 31 L. J. Exch. 207. When a partnership is dissolved by the death of one of the part- ners, his personal representatives will not be liable at law for the contracts entered into by the firm when the deceased was a member of it, inasmuch as at law the liability survives, and a remedy only exists against the survivors. In equity, however, as a partnership, debt is several as well as joint, the estate of a deceased partner re- mains liable to the creditors of the firm, until the debts which affected him at the time of his death have been fully discharged : V«lliamy v. Noble, 3 Meriv. 593 ; Winter v. Innes, 4 Myl. & Cr. 109. It seems that where the surviving partner is bankrupt or insol- vent, the joint creditors in a suit to administer in equity the estate of the deceased partner will be postponed to separate creditors as against the separate estate of the deceased partner : Gray v. *3521 ^^^^^®^'^' ® ^®^- ^^^ 5 Fisher v. Farrington, *Setoh on De- -•• crees, cited 1 Myl. & K. 583; Ridgway v. Clare, 19 Beav. Ill, 116 ; Lodge v. Prichard, 4 Giff. 294 ; 1 De G., J. & Sm. 610; Whittingstall v. Grover, 10 W. R. 53. The joint creditors however of a deceased partner may in the first instance proceed in equity against his representatives in order to WATEKS V. TAYLOR. 479 obtain satisfaction out of his estate, although it be not proved that the surviving partner is insolvent. See Wilkinson v. Henderson, 1 Myl. & K. 682. There the plaintiff was a creditor of a firm, and one of the members thereof having died, he filed a bill on behalf of himself and all other joint creditors against the executors of the deceased partner, and against the surviving partner, and it prayed payment of the partnership debts out of the estate of the deceased partner. Sir J. Leach, M. R., held that the plaintiff was entitled to a decree for the benefit of himself and all other joint creditors. "All the authorities," said his honor, " establish that in the con- sideration of a court of equity, a partnership debt is several as well as joint. The doubts upon the present question seem to have arisen from the general principle, that the joint estate is the first fund for the payment of the joint debts, and that, the joint estate vesting in the surviving partner, the joint creditor, upon equitable consid- erations, ought to resort to the surviving partner before he seeks satisfaction from the assets of the deceased partner. It is admitted that, if the surviving partner prove to be unable to pay the whole debt, the joint creditor may then obtain full satisfaction from the assets of the deceased partner. The. real question, then, is whether the joint creditor shall be compelled to pursue the surviving partner in the first instance, and shall not be permitted to resort to the assets of the deceased partner, until it is established that full satis- faction cannot be obtained from the surviving partner ; or whether the joint creditor may, in the first instance, resort to the assets of the deceased partner, leaving it to the personal representatives of the deceased partner to take proper measures for recovering, what, if anything, shall appear upon the partnership accounts to be due from the surviving partner to the estate of the deceased partner. Considering that the estate of the deceased partner is at all events liable to the full satisfaction of the creditors, and must, first or last, be answerable for the failure of the surviving partner ; that no ad- ditional charge is thrown upon the assets of the deceased partner by the resort to them in the first instance, and that great incon- venience and expense might otherwise be occasioned to the joint creditors ; and further, that according to the two decisions in Sleech's Case in the cause of Devaynes z). Noble, 1 Meriv. 536, the creditor was permitted to charge the separate estate of the deceased part- ner, which in equity was not primarily liable, as between the part- 480 CBAWSHAY v. MAULE. ners, without first having resort to *dividends which might -' be obtained by proof under the commission against the sur- viving partner, I am of opinion that the plaintiff is entitled in this case to a decree for the benefit of himself and all other joint cred- itors, for the payment of his debt out of the assets of the deceased partner." Courts of equity moreover will treat a joint security as several where it has been given for an antecedent partnership debt : Burn V. Burn, 3 Ves. 573 ; Orr v. Chase, 1 Meriv. 729 ; ^but where an obligation executed by partners is purely a matter of arbitrary con- vention, growing out of no an^cedent liability in all or any of the parties, its extent can only be measured by the words in which it is conceived, and a court of equity will not construe it differently from what a court of law would : Sumner v. Powell, 2 Meriv. 30, 36, 37 ; and see Wilmer v. Currey, 2 De G. & Sm. 347. There a firm of three dissolved partnership, one of them retiring ; and by the deed of dissolution, the two continuing partners covenanted for them- selves, their heirs, executors, and administrators, that they or one of them would pay to the outgoing partner certain specified sums. It was held by Sir J. L. Knight Bruce, V.-C, that this constituted only a joint liability at law, and could not be construed otherwise in equity, and a demurrer to a creditor's bill filed by the outgoing partner against the executrix of one of the covenantors, who died before the other, was allowed. The claims, however, against a retired partner and the estate of a deceased partner, will be lessened by all payments made by his late companions, and all appropriations of payments subsequent to the dissolution, of the partnership, in satisfaction of the demands against the partnership. See Clayton's Case, ante, p.. 1 ; 1 Meriv. 572 ; Brooke v. Enderby, 2 B. & B. 70 (6 E. C. L. r!) ; Newmarch V. Clay, 14 East 239 ; Toulmin v. Copland, 3 You. '& Col. Exch. Cas. 625 ; 1 West. App. Cas. 164 ; Jones v. Maund, 3 You. & Col. 347 ; Pemberton v. Oakes, 4 Russ. 154. Upon the dissolution of a partnership, it is frequently agreed that the debts due to, and from the firm shall be received and paid by the new firm, or one of the late partners. No arrangement, however, between the partners alone can vary the right of the creditors. The law, however, is now settled, that by the consent of all parties, the creditor, the old firm, and the new firm, or one of WATEKS V. TAYLOR. 481 the late partners, the debts of the old firm may be transferred to the new firm, or one of the late partners : Hart v. Alexander, 2 Mees. & W. 493 ; Kirwan v. Kirwan, 2 C. & M. 617 (41 E. C. L. R.) ; 4 Tyrw. 491 ; Good v. Chessman, 2 B. & Ad. 328 (22 E. C. L. R.) ; Oartwright v. Cooke, 3 B. & Ad. 703 (23 E. C. L. R.). It will be found that in some cases at law, even where it was clear that the creditor intended to take the separate security of the continuing partner, in lieu of the joint liability of the dissolved firm, the retired partner was held not *to be discharged, as in David v. Ellice, 5 B. & C. 196 (11 E. C. L. R.), and t ^^^ 'Lodge V. Dicas, 3 B. & Aid. 611 (5 E. C. L. R.), in which a cred- itor, with the knowledge that the continuing partner had agreed to pay all the debts, took his personal security for the debt : but it was held, that he had not thereby released the retired partner upon the ground of want of consideration for his bo doing. But these cases have been disapproved of by the subsequent authorities, and it seems now to be clear, that if a creditor of a firm • agree with them to take, and does take the separate security, aS, for instance, the bill, of one -partner in discharge of the joint debt, the other partner will be discharged : Thompson v. Percival, 3 N. & M. 167 (28 E. C. L. R.); 5 B. & Ad. 925 (27 E. C. L. R.); Read V. Winter, 5 Esp. 122 ; Evans v. Drummond, 4 Esp. 89 ; Kirwan V. Kirwan, 2 C. & M. 617 (41 E. C. L. R.); 4 Tyrw. 491; Winter V. Innes, 4 Myl. & Cr. 109. In Lyth v. Ault, 7 Exch. 669,. it was held by the Court of Exchequer that the acceptance by one creditor of the sole and separate liability of one of two or more partners was a good consideration for an agreement to discharge all the other debtors from liability. "It is demonstrable," said Alderson, B., "that'the sole security of A. may be a better thing than the joint security of A. and B. ; for by accepting the sole security of A., instead of the joint security of both debtors, the creditor possesses a legal remedy against A. during his lifetime, and against his assets after his death, and no security whatever against B. Now as to the case where the security is joint, after the death of A., there exists a legal liability of B., and no legal liability of A.'s assets ; but an equitable remedy against the assets of A., subject to the necessity of making B. a party to a suit in equity. Now these two securities are different things, and therefore a bargain to take the one for the other is good. Cases may be suggested of A. being rich 31 • % 482 CRAWSHAY v. MAULE. and B. poor, in which the advantage of taking A. as the debtor in lieu of A. and B. ia clear ; or it may be that A. is as rich as B., in ■which case the creditor may fairly consider that one debtor alone is preferable to both together." The acceptance however of the note of one of the partners as a collateral security (Bedford v. Deakin, 2 B. & Aid. 210) or the receipt of interest from him on the joint debt (Gough v. Davies, 4 Price 200), will not be considered as conclusive evidence of the in- tention of a creditor to exchange the liability of the firm for that of a single partner. The question whether such an agreement has been made, is one' for the determination of a jury : Thorapson v. Percival, 3 N. & M. 167 (28 E. 0. L. R.); 5 B. & Ad. 925 (27 E. C. L. R.); Kirwan V. Kirwan, 2 C. & M. 617 ; 4 Tyrw. 491 ; Hart v. Alexander, 2 M. & W. 484; Kemp v. Corington, 28 L. T. 289; in short, as ob- served by Sir James Wigram, V.-C, "where a partner retires from ^n-p.-, a firm, and a customer has notice of his *retirement, and afterwards continues his dealing with the new firm, without making any claim on the retired partner, a jury may, from circum- stances, presume that the customer agreed to discharge the retired partner, and to accept the new firm as debtors, instead of the old one. In deciding whether such agreement ought to be presumed, the nature of the dealings subsequently to the retirement, the form of the accounts rendered, the time elapsed, and other circumstances may be most material :" Benson v. Hadfield, 4 Hare 37. The cases at law upon this subject have necessarily arisen where the dissolution of the partnership has taken place by arrangement between the partners, and not by death. In equity, however, when the dissolution has taken place in consequence of the death of one of the partners, the claims against the estates of deceased partners will be regulated by the same principles, and ah intention must ap- pear, or an agreement he proved to release the estate of the deceased partner. Hence the estate of one of two partners will not, after his death be discharged from a partnership debt by the circumstance that the creditor continues his transactions with the survivor, and forbears for some years, at the survivor's request, to take any steps to enforce payment of his debt. But the result will be otherwise where the transactions show that the creditor has accepted the liability of the survivor in discharge WATEKS V. TAYLOK. 483 of the liability of the partnership ; Winter v. Innes, 4 Myl. & Cr. 101. It may be here mentioned, that payment of a debt by one partner (Innes v. Stephenson, 1 Moo. & R. 145 ; Cheap v. Cramond, 4 B. & Aid. 663 (6 E. C. L. R.) ; Ballam v. Price, 2 Moore 235 (4 E. C. L. R.) ; Clark v. Clement, 6 Term Rep. 525 ; Newton v. Blunt, 8 C. B. 675 (54 E. C. L. R.)), or a release or discharge to one part- ner (Collins V. Prosser, 1 B. & C. 682 (8 B. C. L. R.)) ; though the debt be joint and several (Nicholson v. Levill, 4 Ad. & E. 675 (31 E. C. L. R.) ; Cheetham v. Ward, 1 B. & P. 63.0), will discharge the firm ; but a mere covenant not to sue one partner will not release the rest : Hutton v. Eyre, Marsh. 608 ; Thomas v. Courtney, 1 B. 6 Aid. 8. See 2 L. 0. Eq. 910, 3d ed. 4. The Rights and Interests of Partners in the Partnership Property. — Assuming that partners have a community in the part- nership property, the question next arises. What, in the absence of special stipulations which will of course be binding as between them (Garbett v. Veale. 5 Q. B. 408 (48 E. C. L. R.) ; Johnson v. Evans, 7 M. & G. 240; Majhew v. Herriott, 7 C. B. 229 (62 E. C. L. R.) ; Baxter v. Brown, 7 M. & G. 198 ; 8 Scott N. R. 1019), is the in- terest of each therein. Partners are joint-owners of the partnership property, and their interest therein differs from that both of ordinary joint-tenants and tenants in common. In the first place, because a partner may, for *partnership purposes and in the partnership name, dispose r^ocf^ of the whole of the partnership property, consisting of mere personalty : ante, p. 294. Whereas a mere tenant in common or joint-tenant can only dispose of his own undivided share : Story Part, §89. It also differs from a joint-tenancy, inasmuch as like a tenancy in common, the interest of a partner in the partnership stock and effects does not go to the surviving partner, but to the representatives of the deceased partner. This is in accordance with the well-known rule, "Inter mercatores pro beneficio commercii jus accrescendi locum non habet:" Bone v. Pollard, 24 Beav. 283. In the case of real property belonging to a firm, although at law the surviving partners would be deemed either joint-tenants or tenants in common (according to the construction which ought to 484 CRAWSHAY v. MAULE. be put upon the conveyance), in equity, the legal owners will be held trustees for the partnership, and will consequently hold the share of a deceased partner in trust for his represetatives : Lake v. Craddock, 3 P. "Wms. 158; s. c. 1 Lead- CaseEq. 3d ed. 162; Moaris V. Barrett, 3 You. & Jar. 384 ; Jackson v. Jackson, 9 Ves. 591. Indeed, in many cases real property held for partnership purposes is in equity treated as mere personalty. And although the cases may, at first sight, seem to be conflicting, the result of them appears to be, that in the absence of any agreement, and except for the pur- poses of paying the probate duty (Custance v. Bradshaw, 4 Hare 315), real estate purchased with partnership capital for the purposes of partnership in trade will in equity be converted into personalty : Townshend v. Devaynes, 1 Mont, on Partn. Append. 97 ; Rop. H. & W. Jac. Ed. p. 346 ; Selkrig v. Davis, 2 Dow 231 ; Phillips v. Phillips, 1 Myl. & K. 669 ; Broom v, Broom, 3 Myl. & K. 443 ; Morris v. Kears- ley, 2 You. & Col. Exch. Ca. 140; Bligh v. Brent, Id. 268; Houghton V. Houghton, 11 Sim. 491. But where real estate belonged to the partners when they entered into partnership, or has been subsequently acquired by them out of their own private moneys, or by gift, although it is used for partnership purposes in trade (Thornton v. Dixon, 3 Bro. C. C. 199 ; Balman v. Shore, 9 Ves. 500 ; Cookson v. Cookson, 8 Sim. 529 ; Brown v. Oakshot, 24 Beav. 254), or if, although paid for out of the partnership capital, it is not purchased for the pur- poses of partnership in trade (Bell v. Phyn, 7 Ves. 459 ; Randall v. Randall, 7 Sim. 271), it will, in the absence of any agreement or direction for its sale, which will of course be binding (Ripley v. Waterworth, 7 Ves. 425; Thornton v. Dixon, 3 Bro. C. C. 199; Essex V. Essex, 20 Beav. 441), retain the character of reality. See also 1 Lead. Cas. Eq. 174, 183, 3d ed. Each partner has moreover a specific lien on the partnership ^ _ .*property, not only for his own share under the partnership, J but also for moneys advanced by him for the use of the firm, and also for the moneys abstracted from the firm by any copartner beyond his share : West v. Skip, 1 Ves. 239 ; Ex parte Rufiin, 6 Ves. Jun. 119. The share however of a partner can only be ascer- tained after payment of the debts of the firm. See note to Ex parte Ruffin, post, p. 387. With regard to the goodwill of a partnership business, an inter- WATERS V. TAYLOR. 485 est of an outgoing partner in it may be valued : Kennedy v. Lee, 3 Mer. 141 ; Farr v. Pearce, 3 Madd. 74. In selling the goodwill of a business, the book debts and business ought to be sold in one lot, and the purchaser ought to be informed if the fact be so, that the sellers are entitled to carry on business in competition with him: Lindley on Part. 1026 ; Johnson v. Helleley, 34 Beav. 63 ; 10 Jur. N. S. 1041. When a person purchases the goodwill of a business, not only does he acquire the right to repre- sent himself as the successor of those who carried it on, but also to prevent others from doing the like : 2 Lind. Part. 845, 2d ed. ; Churton v. Douglas, Johns. 174. When, on a dissolution, one partner obtains exclusively the benefit of the goodwill, and is made accountable for it, the court in ascertaining its value, considers what it would have produced if sold in the most advantageous manner, and at the proper time : Mellersh v. Keen, 28 Beav. 453. But although a goodwill is a valuable and tangible thing in many cases, it is not so unless cminected with the business itself from which it cannot be separated. See Robertson v. Quiddington, 28 Beav. 529 ; there A. and B. carried on business in partnership on premises belonging to the firm. A. died, having bequeathed his goodwill (not including the book debts or stock in trade) to the plaintiff. The executors assented to the bequest, but had assigned the testator's interest in the trade premises to the surviving partner. A bill having been filed by the plaintiff against the surviving part- ner to realize his share of the goodwill, Lord Romilly, M. R., allowed a general demurrer to the bill. " I do not," said his lord- ship, " express any opinion as to what may occur in a suit for the general administration of assets, if it should appear that the execu- tors have, by realizing the business, made a profit by the sale of this goodwill, or whether thereupon the plaintiff may not have a right to be paid in respect of his interest in it. I should follow, no doubt, my decision in Smith v. Everett, 27 Beav. 446, in which the business*had been actually sold, and where part of the purchase- money was attributable to the goodwill. That, however, can only be ascertained, if, in the course of administration by the executors, they have been able so to deal with the business as to make some- thing from the goodwill. Here the .bill *expressly states r^ocg that they have so dealt with the business premises as to 486 CEAWSHAY v. MAULE. make that impossible, because they hare assigned the testator's interest to Quiddington." As to goodwill in connection with .trade marks, see post, note to Croft V. Day. Although on the death of one partner, the surviving partner has a right to carry on the business under the name of the old firm (Lewis V. Langdon, 7 Sim. 421 ; Robertson v. Quiddington, 28 Beav. 536 ; Banks v. Gibson, 34 Id. 566), the estate of a deceased partner, or in case of a dissolution occurring otherwise than by death, every one of the partners, is entitled to participate in the goodwill of a business, as it does not belong to the surviving or con- tinuing partner except by express agreement : Wedderburn v. Wed- derburn, 22 Beav. 84; Bradbury v. Dickens, 27 Id. 53; Burfield V. Rouch, 31 Id. 241 ; Smale v. Graves, 3 De G. & Sm. 706 ; sed vide Lewis v. Langdon, 7 Sim. 421. Upon a sale therefore of the entire partnership under a decree, the court will order the sale to be adjusted so as to give full value t® the goodwill : Cook v. Col- lingridge, Jac. 607 ; S. c. 27 Beav. 456, n. ; Smith v. Everett, 27 Id. 446. Although the goodwill of a business has been sold, the surviving partner has still a right to carry on the same business at the same place : Smith v. Everett, 27 Beav. 446 ; Davies v. Hodgson, 25 Id. , 177. Where the articles of partnership, although they regulate how the partnership property is to be valued to the surviving or remain- ing partner, do not specify that any compensation is to be made for the goodwill, the retiring partner will not be allowed anything for his share in it : Hall v. Hall, 20 Beav. 139. These remarks, however, are applicable only to the goodwill in a business of a commercial character. The goodwill of a business in a profession, such as that of a surgeon or solicitor, as it is not con- sidered to have a local existence, but to depend upon purely per- sonal qualifications, is not considered to be susceptible of valuation, and will, therefore, in the absence of contract, go to the surviving partner : Farr v. Pearce, 3 Madd. 78 ; Spicer v. James, Coll. Part. 104 ; Austin v. Boys, 24 Beav. 598 ; 2 De G. & J. 626. 5. Bights, Duties, and Obligations of Partners between them- selves. — The contract of partnership, both in its inception and WATEKS V. TAYLOK. 487 during its continuance, ought to be characterized by perfect good faith between the parties. " In societatis contractibus fides exube- ret," says the Code : Cod. Lib. 4, tit. 37, 1. 3. Hence, if a man has been induced to enter into a partnership by fraudulent mis- representation, which however must be clearly proved (New Bruns- wick and Canada Railway, &c.. Company v. Conybeare, 9 H. L. Cas. 711 ; reversing s. 0. 1 De G., F. & J. 578, and affirming the ♦decision of Stuart, V.-C, 1 GiflF. 339), he may set it aside r*orQ ab initio : Colt v. Woollaston, 2 P. Wms. 154 ; Green v. Barret, 1 Sim. 45 ; Rawlins v. Wickham, 1 Giff. 355 ; 3 De G. & J. 304. But mere vague and uncertain allegations affecting the character of a person who has entered into an agreement for a partnership will be no defence to an action for a breach' of it : Andrewes v. Garstin, 10 C. B. N. S. 444 (100 E. C. L. R.). So if one partner obtains a renewal of a partnership lease in his own name, behind the backs of his copartners, he will be held a trustee of the renewed lease for the firm : Featherstonhaugh v. Fenwick, 17 Ves. 298, 311; Aiders. Fouracre, 3 Swanst. 489; Cleggi). Edmond- son, 22 Beav. 125; 8 De G., M. & G. 787; Clegg v. Fishwick, 1 M. & G. 294 (39 E. C. L. R.). See also 1 Lead. Cas. Eq. 44, 3d ed. If a lease be acquired for the purposes of a partnership, no matter whether acquired in the name of one partner or of all, being acquired for the purposes of the partnership and dedicated to the partnership, that leaae is part of the partnership assets : per Stuart, V.-C, in Kurdon v. Barkus, 3 Giff. 429. But where the lease is not acquired for the purposes of the part- nership, but was antecedently existing, the property of one who, on his engaging in the partnership, agrees that a part only of the pro- perty in the lease shall be used for the purposes of the partnership, and containing a demise of other and larger property, which never was dedicated to any purposes of the partnership, such a lease is only affected by the rights of the partner so long as the partnership lasts, unless there be some express agreement to the contrary, or some extraordinary circumstances, such as' expenditure of partner- ship capital on the part dedicated to partnership purposes : Burden V. Barkus, 3 Giff 412, 429, 430. So where parties enter into a contract, as, for instance, in making a purchase (Carter v. Home, 1 Eq. Cas. Ab. Account, Tit. pi. 13), 488 CEAWSHAY v. MAULE. or in negotiating a new partnership (Fawcett v. Whitehouse, 1 Russ. & My. 132), one of them will not be allowed to derive any advan- tage by an underhand bargain for his own advantage. See also Hitchens v. Congreve, 1 Russ. & My. 15G. So where one of the partners undertakes clandestinely and for his own benefit, any business properly falling within the province of the firm, and what it was his duty not to have undertaken on his own account, he will be compelled to share his profits with the firm (see Russell v. Austwick, 1 Sim. 62), for the principles of courts of equity will not permit that parties bound to each other by express or implied contract to promote an undertaking for the common benefit, should any of them engage in another concern which neces- sarily gives them a direct interest adverse to that undertaking : Glassington v. Thwaites, 1 S. & S. 124, 133. *TJpon the same principle as it is the duty of a partner J in sales and purchases to act for the best advantage of the firm, he will not be allowed to place himself in such a position as that his interests would conflict with his duty. Thus where two persons were partners in dealing in lapis calaminaris, and one of them, who was a shopkeeper, instead of purchasing it from the miners by cash payments, obtained it by way of barter for shop goods, it was held by Sir John Leach, V.-C, that the partnership was entitled to an account and equal division of the profits made by such barter. "The defendant," said his honor, "here stood in a relation of trust or confidence towards the plaintiff which, made it his duty to purchase the lapis calaminaris at the lowest possible price ; when in the place of purchasing the lapis calaminaris he obtained it by barter for his own shop goods, he had a bias against a fair discharge of his duty to the plaintiff. The more goods he gave in barter for the article purchased, the greater was the profit which he derived from the dealing in the store goods, and as this profit belonged to him individually, and as the saving by a low price of the article purchased, was to be equally divided between him and the plaintiff, he had plainly a bias against the due discharge of his trust or confidence towards the plaintiff:" Burton v. Wookey, 6 Madd. 367 ; see also Glassington v. Thwaites, 1 S. & S. 124, 133. Upon the same principle, where one of several partners is employed to purchase goods for the firm, and he, unknown to his copartners, purchases goods of his own, though at the market price, he will be WATERS V. TAYLOR. 489 accountable to the firm for the profit he makes by the transaction : Bentley v. Craven, 18 Beav. 75 ; Williams v. Tyre, Id. 366, 367. The parties however to the contract of partnership may by express stipulation therein, take themselves out of the operation of the principle laid down in these cases. See Black v. Mallalue, 7 W. R. 303. It is moreover the duty of a partner not to exclude another from the equal management of the concern (Rowe v. Wood, 2 Jac. & W. 558), and they ought each to enter receipts in the partnership books, and to keep precise accounts and to have them always ready for inspection, and in short to keep good faith towards each other : Id. ; and see Goodman v. Whitcomb, 1 Jac. & W. 593 ; Ex parte Yonge, 3 Ves. & B, 37. " In the case of partnership," says Lord Eldon, " the Court acts upon this principle, — that the good faith of the partners is pledged mutually to each other, that the business shall be conducted with their actual, personal interposition, enabling each to see that the other is carrying it on for their mutual advan- tage, and not destroying it." See Peacock v. Peacock, 16 Ves. 51. It is the duty also of a partner to devote a due amount of his time and his interest and skill *in promoting the interests r*qf.-j of the firm, nor can he, in the absence of any special stipu- lation, demand any reward or compensation for extraordinary ex- penditure either of time, labor, or skill. See Thornton v. Proctor, 1 Anst. 94 ; The York and North Midland Railway Company v. Hudson, 16 Beav. 485, 500. Even in the case of a surviving part- ner being executor carrying on the trade after the death of his copartner, he will not, without an express stipulation to that effect, be entitled to any allowance for his management and time, but only for his costs out of, pocket : Burden v. Burden, 1 Ves. & B. 170. Having observed what are the duties of partners, resulting from the mere relation between them, independent of express stipulation, we may here remark, that where there are articles of partnership, it will be the duty of the partners to conform to them in all re- spects. When the articles are ambiguous or silent, the course of dealing between the partners will regulate the mode by which the Court will deal with them : Coventry v. Barclay, 33 Beav. 1. With regard to the construction placed upon provisions in articles of partnership, the reader is referred to the text-books on the sub- 490 CRAWSHAY v. MAULE. ject of partnership. See Coll. Partn., p. 136, 2d ed. ; Story, § 187, 4th ed. ; Bisset oa Partn., p. 153; 2 Lindley on Partn., 2d ed., 801, 855. A departure from the provisions contained in articles of partner- ship, if it can be shown to be beneficial to infants interested therein, ■will be sanctioned by the Court of Chancery : Martindale v. Mar- tindale, 1 Jur. (N. S.) 932. As we have before observed, according to the law of England, no writing is necessary to constitute a private unincorporated partner- ship, the consent of the parties, or their dealings, from which a con- sent may be implied, being sufficient for that purpose (Peacock v. Peacock, 16 Ves. 49; Featherstonhaugh v. Fenwick, 17 Ves. 298; Alderson v. Clay, 1 Stark. 405 (2 E. C. L. R.)) ; and when there is an agreement in writing, it is by the unanimous concurrence of all the partners, open to variation from day to day, and the terms of such variations may not only be evidenced by writing, but also by the conduct of the parties in relation to the agreement and their mode of carrying on the business (England v. Curling, 8 Beav. 129, 133, 137; and see Geddes v. Wallace, 2 Bligh 270, 295, 297; Coventry V. Barclay, 33 Beav. 1; Pilling v. Pilling, 3 De G., J. & Sm. 152) ; and special clauses in the partnership articles, for instance, as to the mode of taking accounts, will be considered as expunged from the articles, if the parties have not acted on them : Jackson v, Sedgwick, 1 Swanst. 460, 469. Although some of the clauses in a partnership deed may be pre- sumed from the dealings of the partners . to have been waived, a single instance of departure from them is not a sufficient foundation 362*1 *^°'' ^"^"^ ^ presumption: Austen v. Boys,' 2 De C & Jo. ^ 626. Where partners, after the expiration of the term agreed upon by the articles of copartnership, continue to carry on the business at will, without charge, even where one of the partners is a sleeping part- ner (Parsons v. Hayward, 31 Beav. 199), the partnership is regu- lated by the articles, so far as they are applicable to the new state of circumstances ; but such of the articles as are inconsistent with a partnership at will have no application. See Clark v. Leach, 1 De G., J. & Sm. 409. Where by articles for a partnership for seven years, a partner, upon certain default of his copartner, had power to dissolve, and WATERS V. TAYLOR. 491 thereupon the defaulting partner was to be considered as quitting the business for the benefit of the partner giving the notice, who was to have the option of taking the property and effects of the partnership at a valuation, it was held by Lord Westbury, C, affirm- ing the decision of Lord Romilly, M. R. (32 Beav. 14), that this clause did not apply to a partnership continued at will after the ex- piration of the seven years: Clarke. Leach, 1 De Gr., J. & Sm. 409. If two partners take in a third partner, without specifying the terms on which he becomes such partner, he has the same rights and is subject to the same liabilities as the two original partners. The terms and conditions of the partnership which bind them will bind him, unless a new contract be made between them : Austen v. Boys, 24 Beav. 598, 606; 2 De G. & J. 626. So also if the conditions of his becoming partner are partially set forth, then to the extent that they are not specified and involved by necessary inference therein, he will be bound by the terms of the partnership contract affecting the two original partners with whom he associates himself : Id. The mere fact that a lease, being part of the subject-matter of the partnership has a particular duration, as was laid down in the prin- cipal case of Crawshay v. Maule, ante, p. 310, will not, as a matter of course, create any implication as to the duration of the partner- ship, in the absence of any agreement express or implied. See also Frost V. Moulton, 21 Beav. 598. Where one of several partners agrees with a stranger for a sub- partnership, it is not to be implied, in the absence of any agree- ment, that the duration of the sub-partnership is to be co-extensive with the original partnership : Frost v. Moulton, 21 Beav. 596 ; see also Essex v. Essex, 20 Beav. 442. 6. Remedies of Partners as between themselves. — With regard to the remedies of partners against each other, they are to be followed out either in courts of law or courts of equity. It is a general rule, that between partners, whether they are so in general or for a particular transaction only, no account can be taken at law (Bovill v. Hammond, *6 B. & C. 149 (13 E. C. pggg L. R.); Holmes v. Higgins, 1 B. & C. 74 (8 E. C. L. R.); "- Brown v. Tapscott, 6 M. & W. 119 ; Wilson v. Curzon, 15 M. & W. 532) ; nor can one partner maintain an action at law against 492 CRAWSHAT v. MAULE. the other partners, or any one or more of them, for moneys ad- vanced or paid or contributed on account of the partnership. The reason given for this is that a court of law could not in such cases do complete justice, since the forms of an action would not permit it to enter on such an investigation of the entire state of the part- nership accounts as would be necessary in order to ascertain the fair and real claims of the contending parties : Smith's Merc. Law 34, 7th ed. Where however there is a covenant by deed or a special under- taking, not by deed, for the performance of a duty neglected, an action may be brought at law upon such covenant or uadertaking: Smith's Merc. Law 33, 7th ed. ; and see Brown v. Tapscott, 6 M. & W. 119 ; "Want v. Reece, 1 Bing. 18 (8 E. C. L. R.) ; Bedford v. Brutton, 1 Bing. K C. 399 (27 B. 0. L. R.). A partner may also maintain an action against a copartner for money advanced to him before the partnership for the purposes of its formation (Venning v. Leckie, 13 Bast 7 ; Elgie v. Webster, 5 M. & W. 618), for work done for the firm before he joined it (Lucas V. Beach, 1 M. & a. 417 (39 E. C. L. R.)), or for a balance of an account after an account has been taken and a balance struck, either by the firm, the Court, or an arbitrator (Moravia v. Levy, 2 Term Rep. 483, n. ; Foster v. Allanson, Id. 479 ; Winter v. White, 1 B. & B. 350 (5 B. C. L. R.) ; Henley v. Soper, 8 B. & C. 16 (15 E. C. L. R.); Brown v. Tapscott, 6 M. & W. 119; Carr v. Smith, 5 Q. B. 128- (48 B. C. L. R.)) ; and an implied promise to pay is suf- ficient, an express promise, although formerly (Fremont v. Couplaud, 2 Bing. 170 (9 B. C. L. R.) ; 9 B. M. 318), not being now considered requisite : Rackstraw v. Imber, Holt N. P. 0. 368 (3 B. C. L. R.) ; Wray v. Milestone, 5 M. & W. 21. So it seems that where a partner makes advances not to the con- cern but to another partner, in respect of what he is to contribute to the joint capital, such advances, being altogether dehors the part- nership, may be recovered back by the partner making them : French V. Styring, 2 C. B. N. S. 357-364 (89 B. C. L. R.). And see Sedgwick v. Daniell, 2 Hurlst. & N. 319. Moreover, if any matter be withdrawn from the adjustment of partnership concerns, and made the subject of a distinct settlement, the general rule that one partner cannot sue another in respect of a partnership transaction till the whole partnership concerns are ad- WATERS V. TAYLOR. 493 justed, will not apply. See Jackson v. Stopherd, 4 Tyrw. 330 ; 2 C & M, 361. There the plaintiff and defendant had worked a coal-pit in partnership till it was exhausted, when the plaintiff said he would join in no more coal-pits, and the defendant said he should work another, whether the plaintiff joined him or not. The mate- rials and utensils belonging to the mine *were valued, and rMtqf>4. each party was to take an article by turns, according to that valuation, till the whole was divided. The valuation was made; and it was subsequently agreed that the defendant shotild take the whole at the valuation, and he took possession of them. The other part- nership debts and credits remained unsettled. It was held by the Court of Exchequer that this was a transaction so separate and dis- tinct from the general accounts, that the plaintiff might sue for his moiety of the value of the materials and utensils before the final settlement of the partnership accounts. "Upon the general rule of law," said Bayley, B., "there is no difficulty; it being clear that one partner cannot maintain an action against another on the part- nership account till the accounts of the firm have been wound up, and the balance due from the partner to be sued to the partner making the claim is ascertained. But by special bargain between them, a particular transaction may be separated from the winding up of the general concern, and, when thus insulated, is taken out of the general law of partnership, constituting between the partners a separate and independent debt, on putting an end to their joint concern." See also Coffee v. Brian, 3 Bing. 54 (11 E. C. L. R.); Wray v. Milestone, 5 M. & W. 21 ; Elgie v. Webster, 5 M. & W. 518. Where after the dissolution one of the partners, by using the partnership name, renders the firm liable to a person not having notice of the dissolution, his copartner, may maintain an action against him for the amount to which his liability extends : Osborne V. Harper, 5 East 225 ; Button v. Eyre, 1 Marsh. 603 (4 E. C. L. R.) ; Cross v. Cheshire, 7 Exch. 48. The remedies of partners in equity against each other are much more extensive than at law. In the first place, a court of equity will decree the specific performance of a contract to enter into part- nership for a fixed and definite term (Anon., 2 Ves. 629 ; Buxton V. Lister, 3 Atk. 385 ; England v. Curling, 8 Beav. 129) ; but it will not do so when no term has been fixed, for such decree would 494 CRAWSHAY v. MAULE. be useless when either of the parties might dissolve the partner- ship immediately afterwards : Hercy v. Birch, 9 Ves. 357. It has, however, been suggested by Mr. Swanston, in his learned note to Crawshay'v. Maule, 1 Swanst. 513, that in many cases, although the partnership could be immediately dissolved, the performance of the agreement, like the execution of a lease after the expiration of the term (see Nesbitt v. Meyer, 1 Swanst. 226), might be important, as investing the party with the legal rights for which he contracted. Specific performance of a partnership contract for an absolute term of years, leaving undefined the amount of the capital, and the manner in which it is to be provided (the mode of carrying on the business being discretionary) cannot be enforced in a court of equity; *and the Court, being unable to enforce the entire contract, *3651 . . . . J will not enforce it in part, as against the representatives of -a deceased partner, by refusing them a decree for the dissolution of the partnership and the sale of the property, which may, under the contract, have been specifically devoted to partnership purposes : Downs V. Collins, 6 Hare 418-437. A court of equity will not decree specific performance of a cove- nant to refer disputes to arbitration (Price v. Williams, cited 6 Ves. 818 ; Street v. Rigby, 6 Ves. 815 ; Wilks v. Davis, 3 Mer. 507), and a plea of an agreement to refer to arbitration would not con- stitute a valid objection to a bill either for discovery only or for discovery and relief (Wellington v. Mackintosh, 2 Atk. 569 ; Street V. Rigby, 6 Ves. 815 ; overruling Half hide v. Fenning, 2 Bro. C. C. 336; Wood v. Robson, 15 W. R. (V.-C. W.) 756 ; but see and con- sider The British Empire Shipping Company v. Somes, 3 K. & J. 433), nor will the Court substitute the Master for the arbitrators. "For this," observed Sir John Leach, "would be to bind the parties contrary to their agreement:" Agar v. Mack^ew, 2 Sim. & Stu. 418. It seems to be doubtful how far an action will lie at law for breach of such a covenant (Kill v. Hollister, 1 Wils. 129) ; or, at any rate how other than nominal damages can be obtained: Tattersall v. Groote, 2 Bos. & Pul. 136. Covenants, however, to refer to arbi- tration may be made efi'ectual. " There are," says Lord Eldon, "prudential ways of drawing them; as, for instance, there may be an agreement for liquidated damages, to enforce specific perform- ance, if an action cannot produce sufficient damages, or equity will WATEKS V. TAYLOR. 495 not entertain a bill for specific performance:" Street v. Rigby, 6 Ves. 818; and see Astley v. "Weldon, 2 Bos. & Pul. 346. So where one partner has, in breach of a covenant, carried on any trade on his own separate account, his copartner* may file a bill in equity for an account of the profits, and he will be entitled to a due proportion thereof unless it be shown that he acquiesced in such breach. See Somerville v. Mackay, 16 Ves. 382, in which case it was held by Lord Eldon that a special consent to one part- ner sending a small quantity of goods to a foreign country on his separate account, was not to be considered sis a general acquiescence in an unlimited trade, contrary to the general obligations in the partnership contract. Courts of equity moreover will take accounts between partners, nor is it essential, as it appears once to have been the opinion (Foreman v. Humfray, 2 Ves. & B. 329; Loscombe v. Russell, 4 Sim. 10), that a dissolution should be at the same time sought, at all events in a case where one of the partners is misconducting himself by violation of the partnership contract: Harrison v. Armitage, 4 Madd. 143 ; Richards v. Davis, 2 Russ. & My. 347 ; Wallworth v. Holt, 4 My. & C. 619; Richardson *v. Hastings, 7 Beav. r*Qf.f. 323 ; Harvey v. Bignold, 8 Beav. 343 ; Decks v. Stanhope, 14 Sim. 57 ; Fairthorne v. Weston, 3 Hare 387. In examining hereafter at what time a court of equity will order a dissolution of partnership, the subject of taking accounts between partners on such an occasion will be more appropriately considered. As a general rule, where a partner has committed such acts as would warrant a decree for a dissolution, the Court of Chancery will restrain the repetition thereof by injunction. Thus if a part- ner has been for his own purposes drawing, accepting, or endorsing bills of exchange (Williams v. Bulkeley, 2 Vern. 278 n. Raith. ed. Prec. Ch. 151 ; Master v. Kirton, 3 Ves. 74; Jervis v. White, 7 Ves. 412; Lawson I). Morgan, 1 Price 303; Hood^f. Ashton, 1 Russ. 412), has been using the property or resources of the partnership for a rival business (Glassington v. Thwaites, 1 Sim. & Stu. 124), or obstructing or interrupting the carrying on of the partnership busi- ness (Charlton v. Poulter, 1 Ves. Jr. 429, cited; 19 Ves 148 n. Reg. Lib. 1752, A. fol. 78 b, 13 June 1-753), excluding his partner from the business (Id., and see Hall v. Hall, 12 Beav. 414), removing the partnership books from the place of business (Taylor v. Davis, 3 Beav. 496 CRAWSHAY v. MAULE. 388 n. ; 4 L. J. N. S. 18 Ch.; Greatrex v. Greatrex, 1 De G. & Sm. 692), or doing acts of waste and destruction, or an intentional serious injury to the partnership property (Marshall v. Watson, 25 Beav. 50L), after a dissolution making use of the partnership pro- perty, and carrying on business in breach of an agreement (Turner V. Major, 3 Giff. 442), a court of equity will restrain him by in- junction. See also Const v. Harris, T. & R. 496. The mere circumstance that a partner gives a partnership bill for his separate debt, may or 'may not, lay a ground for issuing an in- junction against its negotiation ; for the person who takes it may or may not have some reason for supposing that his debtor had a right or authority so to use the partnership name. But where it appears that an individual partner, indebted to the partnership, being unable to pay his separate bill, holden by his bankers, substitutes for it, by a negotiation with them, a partnership security, made and given without the consent or knowledge of his copartners, and the bankers are aware that it is so given without their consent or knowledge ; that is a case which comes within the principle upon which the Court of Chancery has always been in the habit of interfering by injunc- tion: per Lord Eldon, 1 Russ. 415; see Hood v. Aston, 1 Russ. 412-, Jervis v. White, 7 Ves. 413. It was however at one time thought that the Court would never grant an injunction except upon such facts as, if proved at the hearing, would be a ground for a dissolution. There is however no ^ _ such universal rule at the present day, and it is essential to ■^ *justice that no such universal rule should be sustained, for if, for instance, a bill in no case would lie to compel a man to ob- serve the covenants of a partnership deed, it is obvious that a person fraudulently inclined might of his mere will and pleasure compel his copartner to submit to the alternative of dissolving a partnership, or ruin him by a continual violation of the partnership contract. See Fairthorne v. Weston, 3 Hare 392 ; Charlton v. Poulter, 19 Ves. 148 n. ; Goodman v. Whitcomb, 1 Jac. & W. 592. It seems however that there is a reluctance on the part of the court of equity to grant an injunction against a partner unless there be a ground for a dissolution. Thus an injunction will not be granted to restrain the breach by a partner of a particular cove- nant, unless it be studied, intentional, and prolonged, and there be continued intention to the application of one partner calling upon WATEKS V. TAYLOR. 497 the other to observe the contract : Mapghall v. Colman, 2 Jac. & W. 266, 269. After the dissolution of the partnership the Court of Chancery ■will restrain any of the former partners from doing any acts incon- sistent with their duty of winding up the concern. Thus if any of the former partners still persist in carrying on the business for their own benefit, the Court of Chancery will restrain them by in- junction : De Tastet v. Bordenave, Jac. 516 ; and see Gold v. Can- ham, 1 Ch. Cas. 311 ; 2 Swanst. 325. Upon the same principle where a deceased partner having con- tracted in his own name for a lease of premises to be employed in the partnership trade. Lord Eldon, C, although he refused to restrain the lessor from granting a lease to the representatives of the deceased partner^ nevertheless restrained the representatives froni disposing of the lease when granted, except for partnership purposes, and with the assent of the surviving partner : Alder v. Fouracre, 3 Swanst. 489. So likewise upon a motion made by the representatives of a deceased partner, an injunction has been granted against a sur- viving partner proceeding by ejectment to obtain possession of premises of which a joint lease had been made to himself and his deceased partner : Elliot v. Brown, 3 Swanst. 489 n. ; see also Hawkins v. Hawkins, 4 Jur. N. S. 1045. In proper cases, although generally with some reluctance, the Court of Chancery will appoint a receiver or manager of the part- nership property, but to entitle a partner to an order for a receiver against his copartner, he must either show a dissolution, or facts which, if proved at the hearing, would entitle him to a decree for a dissolution : Smith v. Jeyes, 4 Beav. 503. Thus where one part- ner seeks to exclude another from taking any part in the partner- ship concern (1 Swanst. 481 ; Blakeney v. Dufaur, 15 Beav. 41), insists on a legal objection as destroying all right of his partner to. a share in *the partnership, as that he is a clerk in holy orders (The Rev. John Hale v. George Hale, 4 Beav. 369), ■- a receiver will be appointed. The reason why the Court of Chancery does not appoint a mana- ger unless a dissolution is sought, appears to be this, that the Court only appoints a receiver or manager temporarily — that is, until the partnership affairs are wound up : ante, p. 318, 319, 328. 32 498 CKAWSHAY v MAULE. But partners, if they think fit, may by contract between them- selves exclude the interference of the Court; and by express contract provide that on any particular event occurring, one party shall exclude the other, and so prevent the interference of the Court : Blakeney v. Dufaur, 15 Beav. 42. Where however a dissolution is sought, or has already taken place, the Court of Chancery will appoint a receiver if there has been any breach of duty or of the partnership contract committed by one of the partners. Thus if one of the partners improperly takes possession and refuses to account for the partnership effects (Peacock v. Peacock, 16 Ves. 49 ; Milbank v. Kevett, 2 Mer. 406), or after a dissolution carries on trade with the partnership eifects on his own account (Harding v. Glover, 18 Ves. 281), or excludes his copartner from the share to which he is entitled on the winding- up of the concern (Wilson v. Greenwood, 1 Swanst. 483 ; Kershaw V. Matthews, 2 Russ. 62), or persists in collecting the debts after having agreed upon the dissolution that they should be collected by a third party (Davis v. Amer, 3 Drew. 64), a receiver will be ap- pointed. So likewise where surviving partners insist on continuing the partnership business with the assets of a deceased partner, the rep- resentatives of the latter will be entitled to have a receiver appointed : Madgwick v. Wimble, 6 Beav. 495. Where a primd facie case is made out for obtaining a decree for the dissolution of a partnership, the Court of Chancery will, upon an interlocutory application, appointa receiver and manager until the hearing : Marsden v. Kaye, 30 L. T. 197. The Court of Chancery however will not, upon a motion for a receiver of a partnership, determine the questions arising between the partners, the only object then being to protect the assets until the determination of the rights of the parties : Blakeney v. Dufaur, 15 Beav. 40. Where all the partners are dead, and a suit is instituted by their representatives, a receiver will, as a matter of course, be appointed; for "where there is a copartnership there is a confidence between the parties, and if one-dies the confidence in the other partner re- mains, and he shall receive ; but when both are dead, there is no confidence between the representatives, and therefore the Court will WATERS V. TAYLOE. 499 appoint a receiver :" per Lord Kenyon, M. R., in Philips v. Atchi- son, 2 Bro. C. C. 272. 7. Bights of Partners against *third Parties. — We may next consider what are the rights of partners against third L parties. And first, as to the mode in which such rights may be acquired. Where a person obtains an advance from another without ascer- taining whether it is made by him on his own account, or on behalf of a firm o£ which he is a member, the debtor will become liable to the firm if the advance were made on its behalf: Alexanders. Bar- ker, 2 C. & J. 133 ; Boswell v. Smith, 4 C. & P. 60 (19 E. C. L. R.); Sims v. Brittain, 4 B. & Ad. 375 (24 E. C. L. R.); Sims v. Bond, 5 B. & Ad. 393 (27 E. C. L. R.) ; Cooke v. Seeley, 2 Exch. 746. So where one of several partners either sells or buys goods for or on behalf of the partnership, the whole of the partners may 'sue the purchaser for the price, or the vendor for breach of his contract: Skinner v. Stocks, 4 B. & Aid. 437 (6 E. C. L. R.); Rodwell v. Redge, 1 C. & P. 220 (12 E. C. L. R.); Cothay v. Pennell, 10 B. & C. 671 (21 E. C. L. R.); and see Agacio v. Forbes, 14 Moo. P. C. C. 160. But where the partners sue a person for goods supplied by the osten- sible partner, he will be able to set off against the demand a debt due from the ostensible partner. See Stacey w. Decy, 2 Esp. 469 n. There it appeared that the plaintiffs had entered into partnership as grocers ; and it was agreed that Ross should keep the shop in his own name only. Under those circumstances he sold the defendant partnership goods for which the action was brought. The defendant had done business for the plaintiff Ross on his own account, and not on account of the partnership, to a greater amount than the demand now made against him by the partnership, and this he now offered to set off. This was opposed on the ground of the demand accruing in different capacities, and that so it was inadmissible. It was held however by Lord Kenyon, C. J., that the set-off was good. " The plaintiffs," said his Lordship, " had subjected themselves to it by holding out false colors to the world, by-permitting Ross to appear as the sole owner. That it was possible the defendant would not have trusted Ross only if he had not considered the debt due to himself as a se- 500 CEAWSHAY v. MAULE. curity against the counter-demand." See also S. C 7 Term Rep. 361 n. ; George v. Claggett, 7 Term Rep. 359 ; Gordon v. Ellis, 2 C. B. 821 (52 E. C. L. R.). An action may be maintained by several partners of a firm upon a guarantee given to one of them, if there be evidence that it was given for the benefit of all : Garrett v. Handley, 4 B. & C. 664 (10 E. C. L. R.). A guarantee for goods addressed to one of two partners, may be declared on, as given to both, if it appear that the partner to whom it was addressed did not carry on any separate business (Walton v. Dodson, 8 C. & P. 162 (14 E. C. L. R.)), but a guarantee not ad- dressed to any one must be declared on as given to the party to whom or for whose use it was delivered: Id.; and see Moller v,^ Lambert, 2 Oampb. 548. , Where a security, whether by specialty (Arlington v. Merrick, 2 ^n-rn-i *Wms. Saund. 412 and notes ; Strange?;. Lee, 3 East 484; •Pemberton v. Oakes, 4 Russ. 154; Dance t). Girdler, 1 Bos. & Pul. N. R. 34; Wright v. Russel, 2- Blatchf. 934; Weston u. Barton, 4 Taunt. 673; Chapman v. Bickington, 3 Q. B. 703 (43 E. C. L. B.), or by simple contract (Myers v. Edge, 7 Term Rep. 254; Dry v. Davy, 10 Ad. & E. 30 (37 E. C. L. R.); Ex parte Kensington, 2 Ves. & B. 79 ; Holland v. Teed, 7 Hare 50), is given to a firm for future advances, if it is intended to remain in force notwithstanding any change in the partnership, it must appear either by express words or by implication that such was the intention of the parties, otherwise upon any change in the partnership, as by th coming in of a new partner, or upon the death or outgoing of one of the old partners, the obligation will cease. The principle on which these cases proceed is well stated ' in Strange v. Lee, 3 East 484. There a bond given by the defendant, after reciting that Blyth intended to open a banking account with Walwyn, Strange and the other plaintifiB as his bankers, was con- ditioned for payment to them of all sums from time to time advanced to Blyth at the banking-house of the said Walwyn, Strange, etc. It was held by the Court of King's Bench that on the death of Walwyn such obligation ceased and did not cover future advances made after another partner was taken in, and that Blyth, who was indebted to the house at the death of Walwyn, having afterwards paid off the balance which was applied at the time to the old debt incurred in WATERS V. TAYLOR. 501 Walwyn's lifetime, the defendant was wholly discharged from his obligation. " The Courts," said Lord EUenborough, C. J., "will no doubt construe the words of the obligation according to the intent of the parties to be collected from them ; but the question is what that intent was ? The defendant's obligation is to pay all sums due to ^them,' on account of their advances to Blyth. Now who are ^them' but the persons before named, amongst whom is Walwyn ; who then constituted the banking-house, and with whom the defendant contracted ? The words will admit of no other mean- ing, and indeed with respect to any intent which parties entering into contracts of this nature may be supposed to have, it may make a very material difiference in the view of the obligor, as to the persons constituting the house at the time of entering into the obli- gation, and by whom the advances are to be made to the party for whom he is surety. For a man may very well agree to make good such advances, knowing that one of the partners on whose prudence he relies will not agree to advance money improvidently. The characters therefore of the several partners may form a material in- gredient in the judgment of the obligor upon entering into such an agreement." See also Barclay v. Lucas. 1 Term Rep. 291 ; Simson V. Cooke, 1 Bing. 452 (8 B. C. L. R.) ; Simson v. Ingham, 2 B. & C. 65; 9 B. C. L. R.); Leadley v. Evans, 2 Bing. 32 (9 E. C. L. R.); Saunders v. Taylor, 9 B. & C. 35 (17 E. C. L. R.); Groux's Soap *Company v. Cooper, 8 C. B. N. S. 800 (98 E. C. L. R.) L ^ With regard to a guarantee to or for a firm, see 19 & 20 Vict. c. 97, s. 4. With regard to the mode in which the rights of a partnership against third persons may be determined, it may be remarked that one of the partners may in the absence of fraud release third par- ties from their liability to the firm (Wallace v. Kelsall, 8 Dowl. 841), and payment of a partnership debt to one of the partners is as valid as a payment to all, even after dissolution (Porter v. Taylor, 6 M. & Selw. 156), and although there be a clause in the deed of disso- lution, according to which another partner is to receive the debts : King V. Smith, 4 C. & P. 108 (19 B. C. L. R.). So one partner may give time to a debtor of the firm, as by taking his acceptance (Tomlin V. Lawrence, a M. & P. 555 ; 6 Bing. 376 (19 B. C. L. R.)), or he may by some act of his own prevent the partnership 502 CEAWSHAY v. MAULE. from suing because it would be unconscientious for himself to do so. See Jacaud v. French, 12 East 317 ; there Jacaud and Blair, after endorsing a bill to Jacaud and Gordon, received securities from the drawer, in order to take up and liquidate the bill, but they applied them to their own purposes. It was held by Lord Ellenborough, C. J., that Jacaud and Gordon could not sue the acceptor on the bill. "It is impossible," said his Lordship, "to sever the individuality of the person. Jacaud, being a partner with Blair, must be considered as having, together with Blair, received money from the drawers to take up this very bill. . How then can he, because he is also a part- ner with Gordon in another house, be permitted to contravene his own act, and sue upon this bill, which has been already satisfied as to him ?" See also Kichmond v. Heapy, 1 Stark. 202 (11 E. C. L.. R.) ; Sparrow v. Chisman, 9 B. & C. 241 (17 E. C. L. R.) ; Jones V. Young, Id. 532 ; Wallace v. Kelsall, 7 M. & W. 264 ; Gordon v. Ellis, 2 C. B. 821 (52 E. C. L. R.). 8. Dissolution of Partnership, when and how it may he effected. — Partnership may be dissolved in various ways : (1) By operation of law. (2) By the partners themselves, or some of them. (3) By the diecree of a court of equity. 1st. As to dissolution of the partnership hy operation of law. A dissolution will take place when a person has lost his capacity *to act sui juris, in consequence of his having been outlawed, or convicted and attainted of felony or treason, and' it seems moreover the Crown thereupon becomes entitled hot merely to the share of the offending, but also to that of the innocent partner, for by an absurd doctrine still existing, though practically obsolete, it is held that as it is beneath the dignity of the Crown to become a tenant in common, or joint-tenant of anything with a subject, it is therefore entitled to the whole by virtue of its prerogative : 2 Black. Comm. 409 ; Wats. Partn. 377 ; Coll. Partn. 71. ^ *The marriage of a female partner will of itself operate "-' as. a dissolution of the partnership, because, in the absence of any contract reserving her personal property to her separate use, it will belong to her husband absolutely, and he cannot be forced upon the firm as a partner ; and moreover upon her marriage, ex- cept as regards property settled to her separate use, she becomes incapable of binding herself by any contract. See Nerot v. Bur- WATERS V. TAYLOR. 503 nand, 4 Russ. 247, 260 ; 2 Bligh. N. S. 215 ; "Wrexham v. Hudleston, 1 Swanst. 517 n. A general assignment by one. or more of the partners will operate as a dissolution of a partnership carried on for no definite period, and therefore determinable at will ; and it seems, even where the partnership is for a definite period, if an assignment is bond fide made within that period, the same result will follow (Heath v. Sansom, 4 B. & Ad. 172 (24 ,E. C. L. R.) ; Ex parte Barrow, 2 Rose 252); for in neither case can the purchaser be compelled to become a partner, nor can the other partners be compelled to re- ceive him as such, and if they do so, a new partnership will be formed. The Roman law seems to have been the same in this respect. "Si quis ex sociis, mole debiti prsegravatus, bonis suis cesserit, et ideo propter puMica aut privata debita, substantia ejus veneat, sol- vitur societas : sed, hoc casu, si adhuc consentiant in societatem, nova videtur incipere societas:" Inst. Lib. 3, tit. 26, § 8. Upon the same principle, if a separate creditor of one partner take in execution the whole or part of the partnership efiects, he thereupon becomes by operation of law a tenant in common thereof with the other partners, and the partnership will be thereupon, either wholly or partially, dissolved, and upon a sale under the ex- ecution the purchaser merely stands in the place of the execution creditor, and is not a partner, but a mere tenant in common with ' the other partners : Fox v. Hanbury, Cowp. 445 ; Skipp v. Har- wood, 2 Swanst. 585 n. ; Button v. Morrison, 47 Ves. 193 ; Waters V. Taylor, ante, p. 329 ; Holroyd v. Wyatt, 1 De G. & Sm. 125 ; Habershon v. Blurton, 1 De Gr. & Sm. 121 ; Aspinall v. The London and Northwestern Railway Company, 11 Hare 325. The insolvency or bankruptcy of one or more of the partners will of necessity operate as a dissolution of the partnership, for as the property of a bankrupt passes to his assignees he becomes un- able to fulfil the partnership contract, and with regard to the assignees, the solvent partners are not obliged to admit them into, and their own duties will not allow them to carry on, the partner- ship (Fox V. Hanbury, Cowp. 445 ; Ex parte Smith, 5 Ves. 295 ; Wilson V. Greenwood, 1 Swanst. 471, 482, 483 ; Crawshay v. Collins, 15 Ves. 218, 228; and in the event of baftkruptcy, the dissolution which takes effect immediately upon the adjudication will 504 CRAWSHAY v. MAULE. have relatioil back to the act *of bankruptcy: Barker v. '*^ ' ^^ Goodair, 11 Ves. 83 ; Button v. Morrison, 17 Id. 193, 203, 2d4> Fox V. Hanbury, Oowp. 445 ; Harvey v. Crickett, 5 M. & Selw. tm ; Thomason v. Frere, 10 East 418. Where paTtners are the subjects of different countries, it seems that a declaration of war between those countries will ^so facto dissolve the partnei^ship, not only because one alien enemy cannot make a contract binolag upon the other, but because it is the in- evitable result arising fifem the new relations created by war, that it becomes unlawful to haVe any communication or trade with each other as being enemies ; in eflfect, in the words of Chancellor Kent, a state of war creates disabilities, imposes restraints, and exacts duties altogether inconsistent with, the continuance of that relation. A partnership formed between aliens must at once be defeated when they become alien enemies. They can no more assist each other than if they were palsied in their limbs, or bereft of their understandings by the visitation of Providence : Griswold v. Wad- dington, 16 Johns. 438, 488, 492. Lastly, a partnership, although i1^ ma,y have been entered into for a definite period and between many persons, will be dissolved upon the death of one of them, unless there' be an express stipula- tion to the contrary : Gillespie v. Hamilton, >3 Madd. 254 ; Craw- shay V. Maule, ante, 210 ; Bell v. Nevin, 15 W. 5-. (V. C. W.) 85) ; 'and this will take place at that time with respect to the other part- ners and to third persons, irrespective of the consideration whether they have had notice thereof or not: Vulliamy w. Noble^,3 Mer. 593,614. 2d. As to the dissolution of partnersMp hy the partners themselves. It is clear that although a partnership may have been entered into for a limited period, it may be dissolved by the consent of 524 CEAWSHAY v. MAULE. Gallop V. Newman, 7 Pick. 282; French v. Price, 24 Id. 13; Macy v. De Wolf, 3 Wood. & M. 193. Owners, however, of the freight and cargo, who share the profit and loss, are partners : Nicoll v. Mumford, 4 Johns. Ch. 522 ; s. 0. 20 Johns. 611 ; Gregory v. Dodge, 14 Wend. 593. The members of a private association, as a telegraph eompjiny, are not partners. They are tenants in common of the property and franchises belonging to the company, and the majority cannot bind the minority unless by special agreement: Irvin v. Forbes, 11 Barb. S. C. 587; Cox v. Bodfish, 35 Maine 302. Where one party furnishes a boat and the other sails it, an agree- ment to divide the gross earnings does not constitute a partnership : Bow- man V. Bailey, 10 Verm. 110. Although a partnership as to third persons may arise by mere operation of law contrary to the intention of the parties, yet as between themselves it only exists when such is their actual inten- tion, and a mere participation of profits will not make them partners inter sese unless such is their intention : Hazard v. Hazard, 1 Story 371. Persons may be partners as respects third persons without being partners inter se : Gill v. Kuhn, 6 S. & E. 333. They are to be treated as such if they so conduct and hold themselves out to others, whether their con- tract would make them so or not: Stearns v. Haven, 14 Verm. 540; Bucknam v. Barnum, 15 Conn. 67; Benedict v. Davis, 2 McLean 347; Given v. Albert, 5 W. & S. 333 ; Kellogg v. Griswold, 12 Verm. 291 ; Hicks V. Cram, 17 Verm. 449 ; Tabb v. Gist, 1 Brock. 33 ; Buckingham V. Burgess, 3 McLean 364, 549 ; Cotrill v. Vandusen, 22 Verm. 511 ; Kerr v. Potter, 6 Gill 404 ; Morshon v. Hobensack, 2 N. J. 372 ; Furber V. Carter, 11 Humph. 231 ; Crozier v. Kirker, 4 Texas 252 ; Young v. Smith, 25 Missouri 341 ; Shackleford v. Smith, Id. 348 ; Stephenson v. Cornell, 10 Ind. 475 ; Fisher v. Bowles, 20 Illinois 396 ; Wait v. Brew- ster, 31 Verm. 516; Stanchfield v. Palmer, 4 Greene 23. It must appear that the creditor had knowledge of such holding out at the time he gave credit to the firm : Benedict v. Davis, 2 McLean 347 ; Wright v. Powell, 8 Ala. 560; Irvin v. Conkling, 36 Barb. 64; Wood v. Pennell, 51 Maine 52. ^ Partnerships between attorneys are subject to the ordinary iacidents of mercantile partnerships : Livingstone v. Cox, 6 Barr 360 ; Smith v. Hill, 8 English 173. So also between mechanics : McMullen v. Mackenzie, 2 Greene 368. There may be a partnership for the purpose of buying and selling land : Kramer ■;;. Carthurs, 7 Barr 195 ; Dudley v. Littlefield, 8 Shepl. ,418 ; Turnipseed v. Goodwin, 9 Ala. 372 ; In Ke Warren, Davies 320; Patterson D. Brewster, 4 Edw. Ch. 352. An agreement by two to buy lands jointly and share the proceeds constitutes a partnership : Lud- low V. Cooper. 4 Ohio N. S. 1 ; Fall Eiver Co. v. Borden, 10 Cush. 458 ; Gray v. Pahner, 9 Cal. 616; Clagett v. Kilbourne, 1 Black (S. C.) 346. WATEKS V. TAYLOR. 525 Real estate purchased with partnership funds for partnership purposes, and which remains after paying the debts of the firm as between them- selves is considered and treated as real estate : Buckley v. Buckley, 11 Barb. (S. C.) 54 ; Lang v. Waring, 17 Ala. 145. As to real estate held in partner- ship, see Pitts v. Waugh, 4 Mass. 424 ; Goodwin v. Richardson, 11 Id. 469 ; Coles V. Coles, 15 Johns. 159; Hall v. Henrie, 2 Watts 143; Devine v. Mitoheson, 4 B. Monr. 488; Hoxie v. Carr, 1 Sumn. 173; Sigourney «. Munn, 7 Conn. 11 ; Smith v. Jackson, 2 Edw. Ch. 28 ; Smith v. Wood, Saxton 74; Forde v. Herron, 4 Munf. 316; Waugh v. Mitchell, 1 Dev. & Bat. Ch. 510 ; Winston v. Chiffelle, 1 Harp. Ch. 25 ; Thayer v. Lane, Walk. Ch. 200 ; Piatt v. Oliver, 3 McLean 27 ; Delmonico v. Guillaume, 2 Sandf. Ch. 366; Buchan v. Sumner, 2 Barb. Ch. 165; Smith V. Tarlton, Id. 336; Averill v. Loucks, 6 Barb. (S. C.) 19, 470; Cox v. McBurney, 2 Sandf. S. C. 561 ; Deming.w. Colt, 2 Sandf. (S. C.) 284; Lancaster Bank v. Myley, 1 Harris 544 ; Boyce v. Coster, 4 Strob. Eq. 25 ; Olcott V. Wing, 4 McLean 15 ; Ridgwa/s Appeal, 3 Harris 177 ; Andrews v. Brown, 21 Ala. 437 ; Owens v. Collins, 23 Id. 837; Jarvis v. Brook, 7 Foster 37 ; Moderwell v. Mullison, 9 Harris 257 ; Black v. Black, 15 G-eo. 445 ; Lang v. Waring, 25 Ala. 625; Matlock v. Matlock, 5 Ind. 403 ; Coder v. Huling, 3 Casey 84 ; Moreau v. Saffarans, 3 Sneed 595 ; Galbraith v. Gidge, 16 B. Monr. 631 ; Ludlow v. Cooper, 4 Ohio N. S. 1; Tillinghurst v. Champlin, 4 R. I. 173; Pattersons. Sullivan, 4 Casey 304; Roberts v. McCarty, 9 Ind. 16; Buffum v. Buffum, 49 Maine 108; Lane V. Tyler, Id. 252 ; Willis v. Freesman, 35 Verm. 44. A dormant partner is liable for all the partnership debts contracted dur- ing his connection with the firm, whether credit is given exclusively to the ostensible partner or not, and this liability is founded on his participation in the profits : Lea v. Guice, 13 Sm. & M. 656. The liability of a dor- mant partner may be avoided by proof of fraud in forming the partner- ship, if no part of the funds have been received by such dormant partner : Mason v. Oonnell, 1 Whart. 381. A dormant partner need not be joined as plaintiff in an action for goods sold where the defendant in making the contract did not deal with him or know him in the transaction : Clarkson V. Carter, 3 Cowen 84 ; Clarke v. Miller, 4 Wend. 628 ; Hilliken v. Loop, 5 Verm. 116 ; Mitchell v. Dale, 2 Har. & G. 159 ; Monroe v. Ezzell, 11 Ala. 603; Desha v. Holland, 12 Id. 513; Bank of St. Marys ». St. John, 26 Ala. 566; Secor v. Keller, 4 Duer 416. In general one partner cannot maintain an action of assumpsit against his copartner for any matter connected with the partnership, without evidence of an express promise, or of a balance struck and agreed to upon settlement: Oauster v. Burke, 2 Har. & G. 295; Beach v. Hotehkiss, 2 Conn. 425; Williams v. Henshaw, 12 Pick. 378; Dewit?;. Staniford, 1 626 MAULE v. CEAWSHAY. Root 270; Lamalere v. Caze, 1 Wash. C. 0. 435 ; Kennedy v. Mcladon, 3 Har. & Jolins. 194; Ozeas v. Tolman, 1 Binn. 191; Young v. Brick, 2 Penn. 663; Murray v. Bogert, 14 Johns. 318; MoCall v. Oliver, 1 Stew. 510; Haskell v. Adams, 7 Pick. 59; Clarke v. Dibble, 16 Wend. 601; Gibson V. Moore, 6 N. H. 547; Ozeas v. Johnson, 4 Dall. 434; Willey V. Phinney, 15 Mass. 116; ]Chase «. Garvin, 1 App. 211; Burleyv. Harris, 8 N. H. 233; Davenport v. Gear, 2 Scam. 495; Killam v. Preston, 4 W. & S. 14 ; Gulick v. Gulick, 2 Greene 578; Paine v. Thatcher, 25 Wend. 450; Glover v. Tuck, 24 Id. 153; Eockwell v. Wilder, 4 Mete. 556; Dickinson v. Granger, 18 Pick. 315; Springer v. Cabell, 16 Mo. 640; Rearl v. Wilhelm, 3 Gill 356; Pope v. Randolph, 13 Ala. 214; Gridley V. DqII, 4 Comst. 486; Capen v. Barrows, 1 Gray 376; Halderman v. Halderman, 1 Hempstead 559; McKnight t). McCutchen, 27 Mo. 436; Robinson v. Green, 5 Harring. 115; Martin v. Solomons, Id. 344; Sikes V. Work, 6 Gray 433; Odiorne v. Woodman, 39 N. H. 541; Lower v. Denton, 9 Wisconsin 268; Wycoff w. Purnell, 10 Iowa 332; Lane v. Tyler, 49 Maine 452; Nims w. Bigelow, 44 N. H. 376; Holyoke «. Mayo, 50 Maine 385. Where the partnership is but in a single item or adventure, such an action will lie by one partner to recover the balance of account: Byrd V. Pox, 8 Mo. 574; Galbreath v. Moore, 2 Watts 86; Hamilton «. Hamilton's Exrs., 6 Harris 20; Buckner v. Ries, 34 Mo. 357. It may be maintained by one party against the other for a balance due him grow- ing out of a partnership transaction, if there is but a single item to liqui- date: Musier v. Trumpbour, 5 Wend. 275. One partner may sue another on a note given by the latter to the former, for the payment of a part of the capital stock: Grigsby v. Nance, 3 Ala. 347. The existense of a partnership having been proved at a particular time, it will be presumed to continue until a dissolution is proved, and to have been on equal terms, until the contrary is shown : Reybold v. Dodd, 1 Harring. 401 ; Honore v. Colmesnil, 1 J. J. Marsh. 506; Irby v. Brigham, 9 Humph. 7^0. Once formed it is considered aS continuing as to third persons, until notice of its dissolution : Thurston v. Perkins, 7 Mo. 29 ; Princeton Turn- pike Co. V. Gulick, 1 Harring. 161; Lucas v. Bank of Darien, 2 Stewart 280 ; Sanderson v. Milton Stage Co., 18 Verm. 107. Where it has been formed for a limited term, it cannot be dissolved by the mere will of either partner: Henn v. Walsh, 2 Edw. Ch. 129; Bishop v. Brickies, 1 Hoff. Ch. 534. Sed quaere: Blake t>. Dorgan, 1 Iowa 537; Mason v. Connell, 1 Whart. 381; Slemmer's Appeal, 8 P. P. Smith 168. An inquisition of lunacy, found against a member of a firm, ipso facto dissolves it : Isler v. Baker, 6 Humph. 85. Insolvency does not per se work a dissolution: Arnold v. Brown, 24 Pick. 89; Sigel v. Chidny, 4 Casey 279. ContrA: Williamson v. Wilson, 1 Bland 418. A partnership between persons WATEES V. TAYLOE. 527 residing in two different countries, for commercial purposes is dissolved by the breaking out of war between the two countries : Griswold v. Wad- dington, 15 Johns 57; s. o. 16 Id. 438; Seaman v. Waddington, Id. 510. If several persons enter into written articles, and the majority alter the agreement in a material point, the minority may retire from the firm, pro- vided they do so within a reasonable time: Abbot *. Johnson, 32 N. H. 9. A sale of partnership property under a separate execution against one partner, operates as a dissolution : Eenton v. Chaplain, 1 Stock. 62. It has been held that a conveyance by a partner of his interest in all the personal and real estate of the firm to one of his copartners, does not ipso facto dissolve the partnership: Taft v. Buffum, 14 Pick. 322. But a majority of the cases hold the contrary doctrine: Cochran y. Perry, 8 W. & S. 262; Marquand v. New York Manufacturing Co., 17 Johns. 525; Edena v. Williams, 36 Illinois 252. The death of a partner dissolves the partnership, though it is for a number of years, unless there is an express stipulation, to the contrary: Scholefield v. Eichelberger, 7 Peters 586; Gratz V. Bayard, 11 S. & E. 41; Knapp v. McBride, 7 Ala. 19; Burwell V. Mandeville, 2 Howard (S. C.) 560; Williamson v. Wilson, 1 Bland. 418; Goodburo v. Stevens, 5 Gill 1; Ames v. Downing, I Bradford 321. To discharge a retiring partner, there must have been actual notice to one who has had dealings with the firm : Prentiss v. Sinclair, 5 Verm. 149; Watkinson v. Bank of Penna., 4 Whart. 482 ; Mauldin v. Branch Bank, 2 Ala. 502; Vernon v Manhattan Co., 17 Wend. 524; s. c. 22 Wend, 183; White V. Murphy, 3 Eichardson 369 ; Wardwell v. Haight, 2 Barb. S. C. 549; Hutchins.iJ. Sims, 8 Humph. 423; Hutchins v. Hudson, Id. 426; Hutchins v. Bank, Id. 418; Simonds v. Strong, 24 Verm. 149; Conro v. The Port Henry Iron Co., 12 Barb. 27; Pope v. Eisley, 23 Missouri 185; Clapp V. Eogers, 1 E. D. Smith 549 ; Shannel v. Taylor, 12 La. Ann. 773; Johnson v. Totten, 3 Cal. 343 ; Page v. Brant, 18 111. 37 ; Williams v. Birch, 6 Bosworth 299 ; Little v. Clarke, 12 Casey 114 ; Ennis v. Williams, 30 Geo. 691 ; Kirkman v. Snodgrass, 3 Head 370 ; Zbller v. Janvrin, 47 N. H. 324. To constitute a person a previous dealer, and entitled to actual notice of dissolution, he must have dealt directly with the firm; and it is not sufficient that he may have dealt in paper for which the firm was responsible : Hutchins v. Bank, 8 Humph. 418. Notice of the dissolution of a firm to one of its customers may be inferred from circumstances : Coddington v. Hunt, 6 Hill 595 ; Mauldin v. Branch Bank, 2 Ala. 502. Where a partnership is dissolved by war no notice of dissolution is neces- sary : Griswold v. Waddington, 15 Johns. 57. Notice of the dissolution published in the Gazette is notice to all persons, who had not previous dealings with the firm : Lansing v. Gaine, 2 Johns. 300 ; Prentiss v. Sin- clair, 5 Verm. 149 ; Graves v. Merry, 6 Cowen 701 ; Shurlds v. Tilson, 2 528 CRAWSHAY v. MAULE. McLean 458; Watkinson v. Bank of Penna., 4 Whart. 482; Grallicott v. Planters' Bank, 1 McMidlan 209; Mauldin v. Branch Bank, 2 Ala. 502; Simonds v. Strong, 24 Yerm. 642. A dormant partner on retiring need not give notice : Scott v. Colmesnil, 7 J. J. Marsh. 416 ; Magill v. Merrie, 5 B. Monr. 168 ; Creghe v. Durham, 9 Ind. 375 ; Deford v. Eeynolds, 12 Casey 325. A partner whose name has not appeared in the firm will he liahle to persons dealing with the firm after his retirement from it, if he was known to such persons as a member of the firm either by direct trans- actions or public notoriety and they have not been notified of the dissolu- tion : Davis v. Allen, 3 Comst. 1 68. Where the facts are ascertained it is a question of law, whether the notice of dissolution is sufficient or not: Mowatt V. Howland, 3 Day 353. Ex PARTE KUFPIN. 529 *Ex PARTE RUFFIN. [*387 June 6, 1801. [Reported 6 Ves. 119.] Partnership — Conversion of joint into separate Estate.] — A fair dissolution of partnership between two ; one retiring and assigning the partnership property to the other ; and taking a hond for the value, and a covenant of indemnity against the debts ; the other continued the trade separately a year and a half, and then became bankrupt. Held, that the joint creditors had no equity attaching upon partnership effects remaining in specie; and, at all events, such a claim ought to be by bill, not a petition. In June, 1797, Thomas Cooper, of Epsom, brewer, took James Cooper into partnership. That partnership was dissolved by articles, dated the 3d of November, 1798; under which the buildings, premises, stock in trade, debts, and effects, were assigned to James Cooper, by Thomas Cooper, who retired from the trade. Upon the 2d of April, 1800, a commission of bankruptcy issued against James Cooper, under which the joint cred- itors attempted to prove their debts, but the commissioners refused to permit them ; upon which a petition was pre- sented to Lord Rosslyn, who made an order that the joint creditors should be at liberty to prove, with the usual direc- tions for keeping "distinct accounts, and an application of the joint estate to the joint debts, and of the separate estates to 34 530 Ex PARTE KUFFIN. the separate debts. At a meeting for the purpose of de- claring a dividend, the commissioners postponed the dividend, in order to give an opportunity of applying to the Lord Chan- cellor; in consequence of which this petition was pre- sented, praying that the partnership effects remaining in ^-ocQ-i *specie, and possessed by the assignees, may be sold ; and that the outstanding debts may be accounted joint estate. By the articles of dissolution the parties covenanted to abide by a valuation to be made of the partnership pro- perty ; and James Cooper covenanted to pay the partnership debts then due, and to indemnify Thomas Cooper against them ; and Thomas Cooper covenanted not to carry on the trade of a brewer for twenty years within twenty miles of Epsom. A bond for 3000^., the calculated value of the part- nership property assigned, was given to Thomas Cooper by James Cooper an,d his father, as surety. In pursuance of the covenant, the partnership property, consisting of leases, the premises where the trade had been carried on, stock, implements, outstanding debts, and other effects, were valued by arbitrators at 2030/., after charging all the partnership debts then due. James Cooper, by his affidavit, stated that all the joint creditors knew of the dissolution and the assignment of the property ; that advertisements were published ; and that the deponent, after the dissolution, received many debts due to the partnership ; but paid more on account of the partner- ship. His father, by affidavit, stated that he paid the in- terest of the bond regularly; and intended to pay the principal when due. Mr. Romilly and Mr. Cullen for the joint creditors, and Mr. Bell for Thomas Cooper. — If one partner can, by assigning all his interest in the effects, prevent the joint creditors from going against those effects, fraud must be the consequence. Ex PARTE RUPFIN. 531 The partners may agree to divide the eflfects, and carry on business separately. By this agreement between the part- ners, the whole fund of the joint creditors is taken away. Upon the principles, upon which the effects, joined at the date of the bankruptcy, are applied to the joint debts, effects joint at the dissolution of the partnership, and remaining the same in specie at the time the commission issues, should be considered joint property. The ground is, that credit has been given upon the faith of the joint property; and it is a fraud upon the persons giving that credit to apply that fund to the separate creditors, trusting only to the individual and separate effects ; and that ground applies equally to this case. Until the partnership accounts are taken, there is no separate property but in the surplus after paying the part- nership debts {Taylor v. Fields, 4 Ves. 396), the creditors standing in the place of the *bankrupt. The joint r*qoq creditors therefore have a mediate, if not a direct lien upon the whole of the partnership effects. At law the partnership creditors have more advantage than under a com- mission ; taking the partnership eflfects exclusively, and the separate effects with the separate creditors. What differ- ence arises from the circumstance, that the partnership did not exist at the time of the bankruptcy ? That is not suf- ficient to take the case out of the common rule. In West v. Skip, 1 Ves. 239, 456, it is laid down, that upon a dissolu- tion by agreement or by time, the partner out of possession is not divested of his property in and lien upon the partner- ship eflfects. . The same right remains to an account of the partnership eflfects; in which the first item always is the payment of the partnership debts. The position that part- ners can, as between themselves, by any act or agreement alter the partnership stock, so as to aflfect the rights of third persons, cannot be maintained. Why have they not an equal right, in the same manner, to discharge their persons by such act or agreement ; especially, if with the knowledge of 532 Ex PARTE KUFFIN. the joint creditors j but Heath v. Percival,. 1 P. Wms. 682, shows, that circumstance will not bind them ; the transac- tion being res inter alios acta. That an actual assignment and divesting partnership property out of one partner will not defeat the right against the partnership effects is proved by Ex parte Barnahy, 1 Cooke's Bank. Law 253, 4th ed. No evidence is produced to show that the separate creditors thought this was separate property, and gave credit accord- ingly : it must, therefore, be taken that they knew it was not. The assignment is made upon condition, and subject to the payment of the partnership debts. A considerable part of the property consisted of debts, which are not as- signable. But this question has been decided by the order made by the late Lord ChahceUor. Mr. Mansfield and Mr. Cooke for the assignees. — ^No such attempt was ever made before, under such circumstances ; a fair dissolution, and aq assignment by one partner of all the effects to the other ; and trade carried on by that other ; and at this distance of time. Upon the petition before the late Lord Chancellor there was no debate; and, the separate creditors not appearing, and Thomas Cooper consenting, the usual order was made. The circumstance, that part of the property consisted of debts makes no difference. Thomas Cooper is a solvent partner endeavoring to get what he can, through the medium of the *joint creditors. It is -I perfectly immaterial to them ; for he is solvent, and able to pay them. The petition is in truth his. If this was not a complete assignment, it will be impossible to draw the line. Why may. not joint creditors as weU, at the end of twenty years, fix upon a house or any specific article, once partnership property? Certainly fraud will vitiate transactions of aU sorts ; but this would be a singular fraud ; for if the bankruptcy does not follow soon enough to prevent the joint creditors from enforcing their remedy at law, the Ex PARTE KUPFIN. 533 object cannot be attained ; and it is only in bankruptcy that the question can ever arise ; for at law the joint creditor takes "joint as well as separate property, and the distribution takes place in bankruptcy only. The object of such a plan must be to serve the separate creditors, not the partners themselves ; and the bankruptcy must follow so immediately as to prevent the creditors from pursuing their remedies at law. There is no pretence of fraud. The consideration was a bond ; but the question is precisely the same as if it was paid in money. The trade was carried on a year and a half, and there is nothing to show that any one looked on Thomas as a partner. The effect would be, that until aU the joint debts are paid, there never could be a complete assignment from one partner to another. Consider, how separate cred- itors may be defrauded, giving credit to what they see as separate property. Cases infinitely stronger occur in daily practice, as The case of ShaJceshaft, Stirrup, and Salisbury. One of three partners, by arrangement between them, hap- pens, in the course of trade (he living in London, and the others ia the country), to get into his possession a quantity of goods. A commission of bankruptcy issued. Lord Thur- low said he could not take accounts between the respective partners ; but finding the effects in the hands of one, what- ever might be the demands of the others, or the conse- quences to the joint creditors, the goods were the separate property of that one, and must be applied to his separate debts. There it happened by accident, that a considerable part of the partnership stock was transferred to one of the partners, not by an actual assignment for consideration, as in this instance, which is in effect a purchase. There is no sound distinction between this transaction and the sale of part- nership effects to any other person, a stranger. After the assignment, Thomas Cooper, in whose right the petitioners claim, had no interest whatsoever. None of the cases cited apply. The joint creditors have no lien, though in the 534 , Ex PARTE KUFFIN. arrangement in bankruptcy *tlie joint effects are ap- -1 plied to the joint debts. Thedoctrineof Skip v. West is not disputed; that a partner put out of possession, whether by agreement or effluxion of time, does not lose his right; what were partnership effects at that time, still remain so ; but Lord Hardwicke never said, that notwithstanding a sale of the partnership effects, and a separate trade carried on with them for years afterwards by the person who bought them, they remain joint. The agreement of partners can neither discharge goods nor the person; but it may change the property in the goods. Heath v, Percivah has not the least relation to this case. There was no agreement to give up the joint bond. The party therefore. had a right to enforce it, notwithstand- ing his giving time to Sir Stephen Evans. In Ex parte Bwcnaly it does not appear that any one of the partners had gone out; nor, when Crispe committed the act of bank- ruptcy; which might have been prior to the assignment. That assignment was merely of the share of one to the other, not attended with any dissolution of the partnership ; which in this case was actually dissolved, and the share legally assigned. The partnership subsisting up to that time, there was a right to insist that the partnership debts should be paid. With respect to the lien, in the case of Lodge v. Fendall, to which your Lordship has referred, Dr. FendaU had paid 10,000/. into a banker's .hands, and immediately afterwards Lodge stopped payment. The utmost contended for there was, that the assignees of the separate estate might be at liberty to prove that sum, not to take it out. Lord Thur- low there established the rule, that, unless there was a transmutation of the estate by fraud, the creditors must take it, as it happened at the time of the bankruptcy. That rule has been since acted upon in other cases, and the law is es- tablished, that the date of the act of bankruptcy is the com- Ex PARTE EUFPIN. . 535 mencement of the lien, and until then there is no lien. At law there is no lien upon the iefFects of the debtor, until the execution. is delivered to the sheri£F. At the date of this deed there was neither act of bankruptcy nor execution. There being no lien therefore at law, what objection is there to this deed, public — attended with possession and upon bond fide consideration? The intent of the deed was to convey all the property to James Cooper. He was to use his capital in the continuing trade. For that purpose the assignment was necessary. It is not necessary in such a case to prove, that *the separate creditors trusted to rnsono the apparent separate stock. To what else could they trust ? James Cooper swears, no idea was entertained of his having any partnership property ; that he contracted debts to the amount of 5000/.; and that he laid out consider- able sums upon this very property ; and that he paid part- nership debts to the whole amount of wh^t he received. But the case is not to be decided upon such circumstances, but on the legal rights of the creditor. The joint property was liable to their execution, but in common with any other property. But suppose a separate creditor had obtained a prior judgment and execution, could that have been super- seded by the subsequent execution of a joint creditor ? In Hankey v. Garrett, 1 Ves. Jun. 236, also referred to by your lordship, the question was the same as in Ilpc 'parte Burnahy ; whether under the separate bankruptcy there was a right to distribute the joint property among the joint creditors : Lord Thurlow's doubt being, whether the solvent partner had not a right to appear. That doubt has been of late got over ; the Court having been in the habit of dispos- ing of joint property under a separate commission without a bill, or the appearance of the other partner. But in those cases the question was not what is or is not joint property, but as to the jurisdiction. Mr. Romilly, in reply. — Though this order was not made 536 Ex PARTE RUFFIN. by Lord Rosslyn upon argument, it certainly did not pass as a mere matter of course. This must be decided as a gen- eral case. There is one very important fact, that there were outstanding debts to a very considerable amount. None of those debts could be collected but by action in the joint names of the two partners untU the bankruptcy, and now of the assignees. The effect'therefore was not to make James Cooper the legal owner : an equitable interest could only be transferred, subject to all equities and therefore to the equi- table lien upon the covenant to pay aU the debts ; to which these outstanding debts, as well as the other property, were liable. The joint creditors claim, not by way of lien, but as having by the rules established in this Court an equitable claim upon the joiat property, in preference to the separate creditors, until the former are paid 20s. in the pound. There is an analogy to the case of a partner dying ; in which case all survives at law to the other ; but this Court either in a suit or in bankruptcy would direct an account of all the debts at the dissolution. So, where an executor becomes bankrupt, all the effects would belong to the assignees, but the *Court considers them trustees, as he was. So J in this case the bankrupt was a trustee for the joint creditors after the dissolution of the partnership, as both were before. The case of Lodge and Pendall is materially distinguishable. In this the whole fund of the joint cred- itors is done away. In that also the question was not as to specific effects, but a sum of money paid in by one partner. These petitioners only say, these specific effects subsisting in the hands of this partner ought to be applied. Ex parte Burnahy is an express decision upon the point. The ground of this claim is upon the assignment, not the dissolution, which is immaterial ; but how can one partner assign all his property to the other without a dissolution? As to the fraud, suppose the person going out is insolvent, a case ex- tremely likely to happen. Ex PARTE BUPFIN. 537 Lord Chancellor Eldon. — This case is admitted, unless Ex parte Burnaby applies to it, to be new in its circum- stances. Therefore, if I was of opinion that the petition could be supported, I should be very unwilling to express that in bankruptcy where my opinion would not be subject to review. If the case I have mentioned has decided the point, there is the authority of Lord Hardwicke upon it ; which would weigh dowii the most considerable doubt that I could be dis- posed to entertain. I feel great difficulty in complying with the prayer of the petition, and when I read it was struck with it as a new case, and as one upon which I do not clearly see my way to the relief prayed. It is the case of two partners, who owed several joint debts, and had joint eflfects. Under these cir- cumstances their creditors, who had a demand upon them in respect of those debts, had clearly no lien whatsoever upon the partnership effects. They had power of suing, and by process creating a demand, that would directly attach upon the partnership effects. But they had no lien upon or in- terest in them in point of law or equity. If any creditor had brought an action, the action would be joint ; his execu- tion might be either joint or several. He might have taken in execution both joint and separate effects. It is also true, that the separate creditors of each, by bringing actions might acquire a certain interest even in the partnership effects ; taking them in execution in the way in which separate creditors can affect such property. But there was no lien in either. *The partnership might dissolve in various ways : — r*Q94 First, by death ; secondly, by act of the parties (that act extending to nothiag more than mere dissolution), with- out any special agreement as to the disposition of the property, the satisfaction of the debts, much less any agree- ment for an assignment from' either of the partners to the 538 Ex PARTE EUFFIN. others. The partnership might also be dissolved by the bankruptcy of one or of both, and by eflQ.uxion of time. If it dissolved by death', referring to the law of merchants, * and the well-known doctrine of this Court, the death being the act of God, the legal title in some respects in all the equitable title would remain, notwithstanding the survivor- ship ; and the executor would have a right to insist, that the property should be applied to the partnership debts. I . do not know that the partnership creditors would have that right, supposing hoth remained solvent. So, upon the bankruptcy of one of them, there would be an equity to say, the assignees stand in the place of the bankrupt, and can take no more than he could, and conse- quently nothing, until the partnership debts are paid. So upon a mere dissolution without a special agreement, or a dissolution by effluxion of time ; to wind up the ac- counts the debts must be paid, and the surplus be distributed in proportion to the different interests. In all these ways the equity is not that of the joint creditors, but that of the partners with regard to each other, that operates to the payment of the partnership debts. The joint cred- itors must of necessity be paid, in order to the administra- tion of justice to the partners themselves. When the bankruptcy of both takes place, it puts an end to the partnership certainly, but still it is very possible, and it often happens, in fact, that the partners may have differ- ent interests in the surplus, and out of that a necessity arises, that the partnership debts must be paid, otherwise the surplus cannot be distributed according to equity, and no distinction has been made with reference to their inter- ests, whether in different proportions, or equally. Many cases have occurred upon the distribution between the sepa- rate and joint estates; and the principle in all of them from the great case of Mr. Fordyce (Harman v. Fishar, Cowp. 117) has been, that if the Court should say, that what has Ex PABTE RUFFIN. 539 ever been joint or separate property shall always remain so, the *consequence would be, that no partnership rH^qoK could ever arrange their affairs. Therefore, a bonS, fide transmutation of the propertt/ is understood to be the act of men acting fairly, winding up the concern, and hinds the cred- itors, and therefore the Court always lets the arrangement be, as they (i. e. the parties to the arrangement) stand, not at the time of the commission but of the act of hanhruptcy. Thomas Cooper is admitted to be solvent. He certainly has no such equity as if the partnership had been dissolved by bankruptcy, death, effluxion of time, or any other cir- cumstance not his own act. But he dissolves the partner- ship a year and a half ago ; and instead of calling upon these effects according to his equity at the dissolution to pay the partnership debts, he assigns his interest to the other, to deal as he thinks fit with the property, to act with the world respecting it ; desiring only a bond to pay a given value in three or four years. Therefore he, or his executors could not sue. If it was necessary for the creditors to operate their relief through his equity, he has no equity. It is then said, and the circumstance had struck me, that all the property is not assignable at law : for instance, the debts ; but as between the two Coopers they were the pro- perty of the bankrupt, for debts are within the statute of James (21 Jac. 1, c. 19, ss. 10, 11), and if left in the order and disposal of the bankrupt, he is proprietor of the debt. Therefore Thomas Cooper could never set up the insuffi- ciency of the legal operation of the assignment against his own deed. The assignment was not made subject to the payment of the debts, but in consideration of a covenant, leaving no duty upon the property, but attaching a personal obligation upon the assignee to pay the debts. The creditors therefore cannot rest upon the equity of the partner going out. I was struck with the argument of inconvenience : the in- 540 Ex PARTE RUFPIN. convenience on all sides is great. To say this seems to me a monstrous proposition : that, which at any time during the partnership has been part of the partnership effects, shall in aU future time remain part of the partnership effects not- withstanding a londfide act. Suppose an improbable case, that the partners in Child's house chose to shift their shop from Temple Bar to the West End of the town ; and that house, now the property of the partnership, was bond fide bought by one of the partners, and *the money was -I invested in the purchase of the new house, in which they were going to reside ; suppose, a still more improbable case, that a year and a half or ten years afterwards they became bankrupt, would that house be the partnership effects? It would be so, if it remained without the legal interest being passed, or without any equitable claim, taking it out of the reach of a legal execution; but where the effect is a bond fide transaction of this sort, if it were held at any time afterwards to be partnership property, not for the pur- pose of satisfying demands of the partners, or of any creditor who cannot otherwise be satisfied, but to enable them to undo aU the intermediate equities, commercial transactions could not go on at all. It would be much less inconvenient to examine the hona fides of each transaction, than to say such transaction shall never take place. The case of West v. SJcip falls within some of these ob- servations I have made : Heath v. Percival does not apply at all. The bond in that case was not given up ; and therefore the creditor keeping the best security, and refusing to part with it, no inference can be made against the conclusion arising from that. Hanhey v. Garret is also very different. There the partnership was dissolved by bankruptcy or by death, and there was no actual transfer of the property to take it out of the reach of legal execution. I am unwilling to make any observation upon Bwnabys Case. I do not know how to understand it; whether there was anything ExPAETE RUFFIN. 541 special in the assignment, I cannot find out from the report. I shall endeavor to find the papers. It looks very like this case, if it is in specie -this case, as an authority I should think myself bound to submit to it. But it is not in specie this case; there is so much doubt, whether this relief can be given, that I am satisfied it ought to be given, if at all in a jurisdiction where my opinion would be subject to re- vision. My present inclination is, that the creditors have not this equity. I have considerable doubts also, whether, if they have it, Thomas Cooper would be benefited by it; and a further subject of grave and serious doubt is, whether, if the joint creditors disturb the arrangement, the separate creditors would not have a right to set the arrangement right at his expense. I now think there is a circumstance that distinguishes Bumabi/s Case. The assignment was not by one to the other two, but by one to one of the other two, which may be very diflferent. I think that circumstance distinguishes the case so much, that I shall *consult the interest r^oQ^ of the parties better by saying, they may file a biU,^ if they think proper, than by further delay. Petition dismissed. " If upon the dissolution of a partnership," says a learned author, "the retiring partner hon& fide assigns all his interest in the stock and effects to the remaining partner, who afterwards becomes bank-, rupt, so much of the partnership stock so assigned as remains in specie will vest in the assignees of the bankrupt as his separate property, and will be distributable accordingly. The leading case upon the subject is Ex parte RufiBn." See Coll. Partn. 603, 2d ed., and Belt's Supp. to Ves. Sen. 135 ; see also Ex parte Fell, 10 Ves. 347 ; Ex parte Williams, 11 Ves. 3 ; Campbell v. Mullett, 2 Swanst. 575, where this case has been commented upon and followed. 1 No bill was filed ; see " Cook's Bankrupt Laws," p. 537, n. 542 Ex PARTE KUFFIN. The decision in Ex parte Ruffin depended upon this principle, that during the solvency and continuance of the partnership the creditors have no lien upon the partnership effects ; it therefore fol- lowed that any one of them might assign his interest therein to the other partner, without the creditors having any lien upon it ; that, in fact, by the assignment the joint effects of the partnership had become the separate property of the partner to whom the assign- ment was made ; and therefore his separate creditors were entitled to be satisfied out of it before the joint creditors of the firm. See Langmead's Trusts, 20 Beav. 20 ; 7 De G., M. & G. 353. It is true that upon the dissolution of a partnership, the joint creditors are entitled to have satisfaction out of the joint effects of the partnership before the separate creditors of each, partner, but this arises, as is laid down by Lord Eldon, in the principal case, not from any lien of the creditors, but from the equities existing be- tween the partners, or their representatives or assignees. This was clearly shown by Lord Eldon in the case of Ex parte Williams, 11 Ves. 5, where he explained the grounds upon which he decided the principal case. "The grounds," he observed, "upon which I went in Ex parte RiiflBn were these. Among partners clear equities subsist, amounting to something like lien. The pro- perty is joint: the debts and credits are jointly due. They have equities to discharge each of them from liability, and then to divide the surplus according to their proportions ; or, if there is a defi- ^qqn-i ciency, to call upon each other to make *up that deficiency, according to their proportions. But, while they remain solvent, and the partnership is going on, the creditor has no equity against the effects of the partnership. He may bring an action against the partners, and get judgment ; and may execute his judg- ment against the effects of the partnership. But when he has got them into his hands, he has them by force of the execution, as the fruit of the judgment; clearly not in respect of any interest he had in the partnership effects, while he was a mere creditor, not seeking to substantiate or create an interest by suit. There are various ways of dissolving a partnership : effluxion of time ; the death of one partner; the bankruptcy of one (which operates like death); or, as in this instance, a dry naked agreement that the partnership shall be dissolved. In no one of these cases can it be said, that to all intents and purposes the partnership is dissolved ; for the con- Ex PARTE RUFFIN. 543 nection still remains, until the affairs are wound up. The repre- sentatives of a deceased partner, or the assignees of a bankrupt partner, are not strictly partners with the survivor, or the solvent partner ; but still in either of those cases that community of interest remains, that is necessary, until the affairs are wound up ; and that requires that what was partnership property before shall continue, for the purpose of a distribution, not as the rights of the creditors, but as the rights of the partners themselves require : and it is through the operation of administering the equities, as between the partners themselves, that the creditors have that opportunity; as in the case of death, it is the equity of the deceased partner that enables the creditors to bring forward the distribution." Upon the same principle it has been laid down "that as between themselves, a partnership may have transactions with an individual partner, or with two or more partners having their separate estate engaged in some joint concern, in which the general partnership is not interested ; and that they may by their acts convert the joint property of the general partnership into the separate property of an individual partner, or into the joint property of two or more partners, or e eonverso. And their transactions in this respect will, generally speaking, bind third persons, and third persons may take advantage of them in the same manner, as if the partnership were transacting business with strangers. For instance, suppose the general partnership to have sold a bale of goods to the particular partnership, a creditor of the particular partnership might take those goods in execution for the separate debt of that particular partnership :" per Eyre, C. J., in Bolton v. Pullen, 1 B. & P. 546. In order, however, to convert the joint into separate property, or vice versd, two things are essential. First, the transfer must ^ . r 399 be *complete ; and, secondly, it must be bond fide. l 1. Transfer in order to convert joint into separate Property must he complete. — In the principal case, it will be observed, that there was a legal deed of assignment of the partnership effects. Where, however, the partnership effects are in specie, it is perfectly imma- terial whether the assignment takes place by agreement, or by deed, if there be an actual and corporeal handing over of the property. See Ex parte Clarkson, 4 Deac. & C. 67. Thus in Ex parte Wil^ liams, 11 Ves. 3, Shepherd and Smith, two partners, on the 5th of 544 Ex PARTE RUFFIN. September, 1803, dissolved their partnership, and on the 25th of the following November inserted a notice in the "London Gazette," stating the dissolution, and that all debts due from the partnership were to be paid, and would be discharged by Shepherd. At the dissolution of the partnership there were effects belonging to the partners to a considerable amount remaining in specie, and several outstanding debts to the partnership were still remaining due. The effects of the partnership appear to have been delivered up to Shep- herd. On the 24th of December, 1803, a Commission of Bank- ruptcy issued against Shepherd. The joint creditors contended before the Commissioners that the specific property and outstanding debts, belonging to the partnership, were to be considered as joint effects, and applicable to joint debts ; but the opinion of the Com- missioners was, that such effects, remaining in specie, had, by the effect of the dissolution of the partnership, become the separate property of Shepherd, and applicable, in the first instance, to his separate debts ; and in taking the accounts they refused to include any part of such specific effects, as forming part of the joint estate (except certain debts owing to the partners). Lord Eldon, C, dis- missed a petition of appeal from the decision of the Commissioners. "The question," said his Lordship, "is whether the contract for dissolution has left the equities of the partners attaching upon the possession. If it is competent to partners to say, those equities shall no longer exist, inquiry is necessary to ascertain whether, by the bargain for the dissolution, that which was the property of all has become the property of one. In Ex parte Ruffin, there could be no doubt upon that : a legal instrument being produced, the legal effect of whiph was such as I have stated, that case was no more than that a bankruptcy happening a considerable time after the execution of the deed, the effects came to be considered the separate effects of the trader in whose hands they were left ; and the other was only to come in as a creditor. Upon the facts of, this case, without saying whether the conclusion of the Commissioners as to the joint debts is right, there is distinct evidence of an agreement, that the joint effects should be considered separate effects; and *4001 **^^* ^^°* "^^^^ "P°'^ ^^ **^ declare the conclusion of law, that these are separate effects." And see Ex parte Gurney; 2 Mont., D. & D. 541. Where the instrument affecting to assign the partnership property ExPAETE RUFFIN. 645 is merely an executory agreement, and something thereby agreed to be done is left undone at the time of the bankruptcy, it will not convert the joint into separate property. Thus in Ex parte Wheeler, Buck 25, a retiring partner by agreement in writing assigned all the stock and debts to Mallam, the partner continuing in the busi- ness, who agreed to pay a debt owing by the former, and also to pay him an annuity, for the due payment of which it was stated that the father of the continuing partner (who was not a party to the agreement) should be security. Mallam's father refused to be- come a security for his son. It was held by Lord Eldon, C, that the partnership stock was not transferred by the agreement to Mallam. " The first question," said his Lordship, "is whether this is an actual legal assignment or an executory agreement ; because if it is only an executory agreement, circumstances have occurred, as appears by the evidence, that may have the effect of putting an end to it. I think it is to be collected from the agreement, that the father was to join in being security for payment by the son. But Mallam's father refused to give such security; therefore that further act which was necessary to be done in order to complete the transfer of the property, did not happen before the bankruptcy." And see Ex parte Cooper, 1 M., D. & D. 358 ; Hawkins v. Hawkins, 4 Jur. N. S. 1044 ; The Case of the Bank of England, 8 De G., F. & J. 645 ; 7 Jur. N. S. 715 nom. In re Sheatfield, Lawrence & Co. ; Young V. Keighly, 15 Ves. 557. Upon the same principle, where, after a dissolution and an assign- ment of the partnership effects to one of the partners, the retiring partner filed a bill against him, alleging fraud in the non-perform- ance of the articles of dissolution, and praying an injunction and a receiver, which were ordered, it was held by Lord Eldon, C, upon a subsequent bankruptcy, that such interference of the Court re- stored the' property to its original character, as joint property, unless the plaintiff in equity had, by his conduct, between the time of his obtaining the injunction and the bankruptcy, rendered nuga- tory the effect of such interference : Ex parte Rowlandson, 1 Rose 416 ; Ex parte Barrow, 2 Rose 252 ; Ex parte Pemberton, 2 Mont. & A. 548 ; 1 Deac. 421. The mere fact, that part of the consideration payable on an agreement, for a dissolution of partnership by which the stock, is assigned to one of the partners, is made up of bills of exchange, 35 546 Ex PARTE RUPFIN. payable at a future time, will not be suflScient to render the agree- ment executory, and the joint will be converted into separate pro- perty, though the bills may not be paid. In such a case the bills *4fl1 1 °^ exchange are *looked upon as a mere mode of payment, and the person taking them has the usual remedies by action in case of their dishonor, or in the. event of bankruptcy by proof: Ex parte Clarkson, 4 Deac. & C. 56, 67, 68 ; Ex parte Gibson, 2 Mont. & A. 4. In the case of real property, in the event of the non-payment of the purchase-money, the retiring partner would have a lien for the unpaid purchase-money. See Mackreth v. Symmons, 1 Lead. Cas. Eq. 263, 3d ed. ; Ex parte Peake, 1 Madd. 346 ; Grant v. Mills, 2 Ves. & B. 306 ; Ex parte Gibson, 2 Mont. & A. 4. But if, notwithstanding an assignment, the personal effects re- main in the order and disposition of the partnership, the joint cred- itors will be entitled to tjjem : Ex parte Burton, 1 Glyn & J. 207. See also Ex parte Williams, 11 Ves. 3, ante, p. 397; Ex parte Usborne, 1 Glyn & J. 358 ; and see Ex parte Gibson, 2 Mont. & A. 10 ; 2 Sim. 257 ; Ex parte Leaf, 1 Deac. 176. And see note ito Joy V. Campbell, post. A mere dissolution of the partnership or the retirement of one of the partners from trade will not have the effect of converting the joint property of the partnership into separate property, for, in the words of Lord Eldon, " that does no more than declare, that the partnership is not to be carried on any further, except for winding up the affairs : and he who has actual possession has it clothed with a trust for the other, to apply the property to the debts ; and that will qualify the nature of his possession, so that it cannot be said he has the sole possession of the specific effects or the debts, to bring it within the doctrine of reputed ownership:" Ex parte Williams, 11 Ves. 6. But see and consider Ex parte Taylor, Mont. 240. There one of four partners having died, and the surviving partners having compromised and obtained securities for a debt due to the original firm, became 'bankrupts, it was held by Sir L. Shadwell, V.-C, that the securities were, by reputed ownership, distributable among the creditors of the three. If a partner, upon retiring from the partnership, desires that the partnership effects should remain liable to the joint debts of the Ex PARTE RUFFIN. 547 partnership, he should assign such effects upon trust to pay the debts. See Ex parte Fell, 10 Ves. 348. Although the joint effects of the partnership may, by assignment to one of the partners, be rendered his separate property so as to give his separate creditors a prior claim upon them, nevertheless the joint creditors may before his bankruptcy elect to become his separate creditors, though they cannot do so afterwards. " The engagement of one partner with the other," says Sir John Leach, V.-C, "to pay the debts of the firm, can, as to the creditors of the firm, be considered only as a proposal that he is willing to become their sole debtor. If they accede to this proposal *before r^^no the bankruptcy, then a contract to that effect is concluded) and under the bankruptcy they are his separate creditors. But their acceptance of him as their separate debtor, after the bank- ruptcy, comes too late, for he is then incapable of contract. . . . I agree that it may be some hardship upon joint creditors, that the joint stock to which they may have given credit, should, by the dealings of their debtors with each other, be thus converted into separate estate. That hardship would have been avoided if it could have been held that where, upon a dissolution, one of two partners is to become the sole owner of the joint stock, and it is a part of the consideration that he shall pay the joint debts, such joint stock shall not, in bankruptcy, be considered as actually converted into his separate estate, unless he has paid the joint debts. The cases of Ex parte Ruffin, and the other cases of that class which followed it, have established that the legal principle which converts the joint estate into the separate estate by mere force of the contract is too strong for this equity:" Ex parte Freeman, Buck 473; see also Thomp- son V. Percival, 5 B. & Ad. 925 (27 E. C. L. R.); 8 N. & M. 167 (28 E. C. L. R.). But although the partnership effects have been made by contract the separate property of one of them, and therefore cannot be touched in bankruptcy by the joint creditors, the joint creditors may undoubtedly proceed against the two partners, for the agree- ment to dissolve does not deprive the joint creditors of their right of applying for payment to those who are responsible to them : Ex parte Peake, 1 Madd. 358, 359. 2. Transfer in order to convert Joint into separate Property must 548 Ex PARTE KUFFIN. he bond fide. — In order that the joint property should be converted into separate property, the transaction must be bond fide. As Lord Eldon observed in the principal case, " a bond fide transmutation of the property is understood to be the act of men acting fairly, ■winding up the concern." If partners enter into a contract for the purpose of defrauding their joint creditors, the one agreeing to permit the other to with- draw money out of the reach of the joint creditors, such contract is fraudulent and invalid : Anderson v. Maltby, 4 Bro. 0. C. 423 ; 2 Yes. Jr. 244. Upon the same principle, when at the time of the dissolution the partners both collectively and individually are insolvent, a convey- ance from one of them to the other of the partnership effects, in con- sideration of his covenanting to pay the debts of the partnership, will be fraudulent and void as against creditors, and consequently will not have the effect of converting the joint into separate estate, although at the time of the transfer the partner taking it may have believed that, the business of the late firm could be profitably car- ried on. This was decided in the important case ^i Ex parte *, 403] *Mayou, In re Edwards Wood & Greenwood, 34 L. J. (Bktcy.) 25, 11 Jur. N. S. 438. There the bankrupts Wood and Greenwood were partners. TJieir business was that of brickmakers, and they held a lease or agreement for a lease of a colliery that was expected to be a profitable undertaking. , In the month of August, 1863, the partners were in great diflSculties. In November, 1863, a trader debtor summons was taken out against them for a debt of 250Z., and several writs demanding large sums of money issued against them. On the 9th of December, they went together to a person who had accepted bills for their accommodation to induce him to renew them, and to make a further advance of money. He declined to comply with their application, whereupon the bankrupts determined to dissolve partnership, and a deed was prepared and executed on the same day, by which Mr. Greenwood assigned the whole of the property to Mr. Edwards Wood, taking from Mr. Edwards Wood a covenant to pay the debts of the partnership. At the time of the execution of the deed the part- nership was insolvent, and each of the partners was insolvent. There seems, however, to have been some expectation on the part of Mr. Edwards Wood, that if he succeeded in obtaining advances, Ex PARTE KUFFIN. 549 the colliery might be profitably worked. It was held by Lord West- bury, C, that the deed of dissolution was fraudulent and void, and did not consequently convert the joint property of the firtn into the separate property of Mr. Edwards Wood. "The case," said his Lordship, "was learnedly argued with reference to several decisions of Lord Eldon ; but I take it that the principle of all the decisions is that which is shortly stated by Lord Eldon, in the case of Ex parte Williams, 11 Ves. 3, in which he very concisely states that every one of these transactions must depend entirely upon the bona fides. The question, therefore, that I have to answer is simply this, whether an assignment of this nature can be made bond fide by a part- ner when the partnership is in a state of insolvency, and the part- ners themselves are equally insolvent in their separate character ? Now the principle of law embodied in the 13th Bliz., and also the principle which is expressed and declated by the 67th section of the Bankrupt Law Consolidation Act, 1849, entirely forbid my holding that this assignment was anything but a fraudulent conveyance, fraudulent against creditors, a transaction which cannot have effect given to it, because it would have the efi"ect of delaying and defeat- ing the just creditors of an insolvent person in their attempts to re- cover and make available the property of that person. I, therefore, applying that test to the matter, hold that there was no bona fides in this transaction, that the assignment was fraudulent, that it was void, that it did not operate as a conversion of the bankrupts' pro- perty into the separate estate of Wood, that *the whole of the property as it existed belonging to the bankrupts at the. ■- date of that deed must still be considered as remaining the joint property, and must be administered and distributed as such under the bankruptcy among the joint creditors." It has however been held, though under somewhat peculiar cir- cumstances, that one partner may agree with a retiring partner to give him a sum of money for the concern, and thereby convert the joint assets of the firm into the separate estate of the continuing partner, although they knew at the time of the dissolution that the partnership was insolvent, provided no fraud was intended. The case referred to is that of Ex parte Peake, In re Lightoller, 1 Madd. 346. There the petitioner Peake and Lightoller the bankrupt car- ried on the business of calico-printers in partnership together (at premises which had been conveyed to them jointly) until the month 550 Ex PARTE KUFFIN. of September, 1814, when they agreed to dissolve the partnership, and the petitioner Peake agreed to sell his interest in the premises to the bankrupt, the bankrupt also agreeing to pay the debts due from the firm, amounting to about 6701. By indentures of lease and release, dated respectively the 10th and 11th of October, Peake conveyed and assigned to LightoUer his moiety of the premises, and certain implements and utensils. The consideration for the sale being the sum of 20091. (which was not paid), but LightoUer gave his drafts for that amount payable at different dates. The first bill, which became due on the 14th December, 1814, being dishon- ored, Peake obtained a deposit of the deeds to secure the whole of the purchase-money, and subsequently a memorandum, by which it was agreed that, upon a sale or mortgage of the premises, the 2009?. should be paid. The remainder of the bills, when due, were dis- honored. After the dissolution of the partnership, LightoUer sepa- rately and ostensibly carried on the concern (Peake never interfer- ipg), and held himself out as the sole owner of the property, obtained credit with his different creditors upon the credit of the property belonging to him separately and as his own estate. In May, 1815, LightoUer stopped payment, and in the following June he became a bankrupt. A petition presented by Peake prayed for the sale of the premises, the payment of the 2009Z., with interest, and of the partnership debts. The bankrupt swore that when the state of the accounts were ex- amined in the months of September and October, 1814, the part- nership estate was insolvent to a very considerable amount. This was denied by Peake. Peake, it appears, was solvent. Some of the joint creditors appeared to contend that the transaction between Peake and the bankrupt had not rendered the property of the former the separate estate of the bankrupt. But the assignees con- tended that they had a right to go back to the transaction of October, *A')^1 ^^^^' *"*^ *^** *upon finding the partnership dissolved at -J that period, and the affairs not wound up, they had a right to take the account against Peake, and to render him responsible for part of the joint debts afterwards paid by LightoUer, those debts being so paid by the sale of goods furnished to LightoUer by the new creditors. Sir Thomas Plumer, however, held that the part- nership property had, by the transaction between the partners in 1814, been made the separate property of the bankrupt, and that Ex PARTE RUFFIN. 551 after the payment of the purchase-money it was applicable towards payment of the separate creditors of the bankrupt. " I will take it," said his honor, " that the two partners were each cognisant at that period, that the effects of the partnership were greatly insufficient to pay its debts, and that Lightoller chose sepa- rately to remain conducting the business, and to buy out the retiring partner — there being no deception, no misrepresentation, no conceal- ment, no fraud, on the part of the retiring partner. The first ques- tion is — Is it not competent to two partners to make such a bargain, however advantageous or disadvantageous it may be to either party ? May not one copartner dissolve publicly his partnership with the other, he knowing the then state of it, but having a better opinion of it, or choosing, for his own advantage, to give a sum of money if the other will convey his interest to him ? They certainly might make such an agreement, no fraud being practised or intended." And, after commenting upon the case of Anderson v. Maltby, 4 Bro. C. 0. 423, 6. 0. 2 Ves. Jun. 244, his honor said : — "In that case there was strong ground to believe a fraud was intended ; and it does not warrant me in declaring generally that the mere circumstance of the partner- ship being at that time in such a state that their joint effects were not sufficient to pay their joint debts, will^er se be sufficient to invalidate a dissolution of partnership made fairly between the partners them- selves. No fraud was intended by Lightoller — he paid the joint creditors — there was therefore no connivance with Peake to put the joint effects into a state to benefit Peake. Anderson v. Maltby, ■therefore does not apply." It will be observed that this case differs in many respects from In re Edwards Woods, Ex parte Wood & Greenwood, for in the latter case not only the firm, but also the partners individually, were in- solvent at the time of the dissolution, which was soon afterwards followed by the bankruptcy of both partners. Whereas in Ex parte Peake, the retiring partner was solvent, and the continuing partner who openly carried on the business for some months, contracting new debts upon the faith of the possession of the former property of the partnership, paid off the joint creditors, so that there was no person before the Court who had any right to insist that a *fraud had been committed upon them by the transfer of p^Qg the partnership property upon the dissolution. And as between the partners themselves, it is clear that there was no fraud. .552 ExPABTE KUFFIN. The case of Ex parte Peake seems therefore to be quite. consistent ■with the decision of Lord Westbury in Ex parte Mayou. However, after the latter decision, it may well be doubted whether it would be competent for a partner knowing the insolvency of the firm, to assign the partnership effects to the continuing partner, so as to con- vert the joint into separate estate, at any rate where the assignment was soon followed up by the bankruptcy of one of the continuing partners, because the effect of the assignment, although no actual fraud was intended, would be that of delaying or defeating the joint creditors. In the principal case the assignment took place a considerable time — a year and a half — before the bankruptcy, and that lapse of time was no doubt evidence of the bona fides (see Ex parte Williams, 11 Ves. 4) ; but the mere fact that the bankruptcy takes place soon after the assignment will not of itself, in the absence of fraud, ren- der the assignment invalid : Ex parte Williams, 11 Ves. 3. As to the conversion of real estate held for the purposes of a part- nership, see note to Lake v. Craddock, 1 L. C. Eq. 174, 3d ed. As to the equity of the joint creditors, see White v. Dougherty, Mart. 6 y erg. 309 ; Bevan v. Aller, 3 Harring. 80 ; Tredwell v. Roscoe, 3 Dev. 50; Wilder v. Keeler, 3 Paige 167; Christian v. Ellis, 1 Gratt. 396; Lucas V. Atwood, 2 Stew. 378; McDonald v. Beach, 2 Blackf. 55; Washr burn V. Bank of Bellows Falls, 19 Verm. 278; Filley v. Phelps, 18 Conn. 294; Pearson v. Keedy, 6 B. Monr. 128; Black v. Bush, 7 Id. 210; Mer- rill V. Neill, 8 How. (S. C.) 414; In re Warren, Davies 320; Muir a.Leitch, 7 Barb. (S. C.) 341 ; Cleghorn v. The Insurance Bank of Columbus, 9 Geo. 319; Glenn v. Gill, 2 Md. 1 ; Emanuel v. Bird, 19 Ala. 596; Wilson v. Soper, 13 B. Moni;. 411; Morrison v. Kurtz, 15 Illinois 193; Toombs v. Hill, 28 Geo. 371 ; Crooker v. Crocker, 46 Maine 250 ; Black's Appeal, 8 Wright 503; Houseal's Appeal, 9 Id. 484; Burpee v. Bunn, 22 Cal. 194; McCormick's Appeal, 5 P. F. Smith 252 ; Bank of Kentucky v. Keizer, 2 Duval 169; Whitehead v. Chadwell's Adm., Id. 432. In equity the partnership effects are pledged to each separate partner, until he is re- leased from all his partnership obligations; and while the partnership continues, this equitable lien, existing for the benefit and security of the separate partners, may be reached in a court of equity, by the creditors of Ex PARTE RUFFIN. 553 the firm for the purpose of securing to themselves a preference over the separate creditors : Bardwell v. Perry, 19 Verm. 292 ; Talbot v. Pierce, 14 B. Monr. 195; Huskill v. Johnson, 24 Geo. 625; Jones v. Lusk, 2 Mete. (Ky.; 356; McNutt v. Sfrayhorn, 3 Wright 269; Backus v. Murphy, Id. 397; Matlack v. James, 2 Beas. 126; Dean v. Phillips, 17 Ind. 406; Dunham v. Hanna, 18 Id. 270; Snodgrass' Appeal, 1 Harris 474; O'Ban- nan v. Miller, 4 Bush. 25. Though the creditors of a partnership are entitled to a priority of payment as between them and creditors of an in- dividual partner, out of the partnership funds so long as they continue partnership funds ; yet they have no specific lien thereon ; and ■while the partnership remains and its business is going on whether it be in fact sol- vent or not, there is no legal objection to a bond fide distribution of the partnership funds among the members of the firm or a honS, fide change of them from joint to separate estate: Allen v. The Center Valley Co., 21 Conn. 130; Miller v. Bstell, 5 Ohio N. S. 508; Sigler v. The Knox Co. Bank, 8 Id. 511; Schaeffer v. Fithian, 17 Ind. 463; Mittnight v. Smith, 2 Green 259 ; National Bank v. Sprague, 20 N. J. Eq. 13. The partner- ship creditors have a right to be substituted to the lien of the partners : Black V. Black, 7 B. Monr. 210, If the contract be of such a nature that the partners can enforce no lien for the partnership debts as between themselves, the partnership creditors can claim no preference : Rice v. Barnard, 20 Verm. 479; but see Elliott v. Stevens, 38 N. H. 311. The only insolvency which will give the chancellor jurisdiction to decree pri- ority of payment in favor of partnership debts is that which is ascertained by a judgment execution and return of " no property" against one or more of the partners : Jones v. Lusk, 2 Mete. (Ky.) 356. The rule that the creditors of a firm have no equitable lien upon the co-partnership pro- perty, but can only work out such lien through the equities of the copart- ners, applicable whilst the copartners are administering their own funds, has no application to the case of a copartnership dissolved by the death of one of the copartners, especially if the surviving partner be insolvent, or where, though living, one or both of the partners have become insol- vent or bankrupt, so that their property is in the hands of assignees for distribution : Tillinghast v. Champlin, 4 R. I. 173. Where one partner sells out his interest to his copartner, his lien upon the partnership pro- perty to have the partnership debts paid out of it is gone, and there is no partnership property left ; and if such outgoing partner dies insolvent, the partnership creditors may come in and prove their claims against his pri- vate estate and take dividends pari passu with his separate creditors : Ladd V. Griswold, 4 Gilman 25. Where a partner sells his interest in the concern to his copartners, taking their personal covenant as indemnity against the debts, he has no lien on the partnership property for the pay- 554 BxPAETE RUFFIN. jnent of debts for which lie is liable : Smith v. Edwards, 7 Humph. 106 ; Sage V. Chollar, 21 Barb. 596; Upson v. Arnold, 19 Geo. 190; Eobb v. Mudge, 14 Gray 534. Where one of two partners, with the consent of the other, sells and conveys one-half of the effects of a firm to a third person, and the other partner afterwards sells and convej^ the other half to the same person, such sales and conveyances are not ^md facie void, as against creditors of the firm, but axe primS, facie valid, against all the world, and can be set aside only by the creditors of the firm upon their proving the transactions to be fraudulent as against them : Kimball v. Thompson, 13 Mete. 283 ; Flack v. Charron, 29 Md. 311. Equity will not sustain an agreement made by partners for the purpose of giving the separate creditors of one of the partners a preference to the creditors of the firm, if the firm be, at the time of making such agreement, insolvent : Collins V. Hood, 4 McLean 186 j Ransom v. Van Deventer, 41 Barb. 307. Ex PARTE EOWLANDSON. 555 *Ex Parte ROWLANDSON. [*407 De Term. 8. Hilarii, 1735. [Reported 3 P. Wms. 405 ; s. c. 2 Eq. Ab. 110, pl. 2.] Bankruptcy — Double Proof.] — If A. and B. are hound in a bond Jointly and severally to J. S., he may elect to sue them jointly or severally ; but if he sues them jointly he cannot sue them severally, for the pendence of one suit may be pleaded in abatement of the other. By the same reason, if A. and B., Joint traders, become bankrupt, and there are Joint and separate commissions taken out against them, and A. and B., before th&ybankruptcy become Jointly and severally bound to J. 8., J. 8. may choose under which commission he will came, but shall not come under both. If two Joint traders owe a partnership debt, and one of the partners gives a bond as a collateral security for payment of this debt, here the Joint debt may be sued for by the partner- ship creditor, who may likewise sue the bond given by one of the traders. The case was, John Crossfield and James Birket were partners in trade, and 'bo\xnA Jointly and severally in their Joint and several bond to the petitioner Rowlandson. On the 27th of October, 1734, a joint commission was awarded against Crossfield and Birket, who were found bankrupts, and their estate and effects made over to as- signees in trust for their creditors. Afterwards a separate couimission was sued out against 556 Ex PARTE KOWLANDSON. each of the partners, and. each upon this commission was also found a bankrupt. The petitioner proved his debt under all three commis- sions, and received a dividend under the joint commission of shillings in the pound; and having also applied to the Commissioners under each of the separate commissions, to be let into his *dividend under such separate com- -■ mission, and being by them refused, in regard of his having received the same under the joint commission, he now applied to . the Lord Chancellor to be admitted to re- ceive his dividend under the separate, as well as under the joint' commissions. The Lord Chancellor (Lord Talbot) at first inclined to think that the petitioner being a joint and separate creditor, ought to be at liberty to come in under each of the com- missions, provided he received but a single satisfaction; but the next day his Lordship held that at law^ when A. and B. are bound jointly and severally to J. S., if J. S. sues A. and B. severally, he cannot sue them jointly; and on the contrary, if he sues them jointly^ he cannot sue them sever- ally, but the one action may be pleaded in abatement of the other. So, by the same reason, the petitioner in the present case ought to be put to his election, under which of the two commissions he would come ; and that he should not be per- mitted to come under both; for then he would have received more than his share; but his Lordship said he would hear counsel, if they had anything to object against this order. Argument for the petitioner. "Whereupon it was now offered, that it was true, if at law two men are bound jointly and severally in a bond to J. S., the obligee may either sue the bond jointly against both, or severally against each, at his election; but on his suing them 1 1f three are bound jointly and seyerally, the obligee cannot sue two of them jointly, for this is suing them neither jointly nor severally. Roll. Abr. 148. Ex PARTE KOWLANDSON. 557 jointly and severally at the same time, the pendency of one suit may be pleaded in abatement to the other; but the rea- son of this is, for that if the obligee sues the obligors jointly and recovers judgment, the plaintiff in such case is at liberty to take as well the joint, as the separate effects of each of the obligors in execution. Now, in such case, he can have no more than aU the effects of each, consequently during such joint suit it would be fruitless, and indeed vexatious, to bring a separate action against each of the obligors; but that nothing could be inferred from hence against a joint creditor's taking under each of these commissions the utmost advantage allowed him by law; and that the bankruptcy of the debtor ought not to hinder him of such advantage, so as he did not receive a double, satisfaction. For which purpose a case was cited {Ex parte Rke r*4nq Vaughan) *as determined by the Lord King, Sep- tember 6, 1732, where a joint commission issued versus Stainer, Jones, and Prestland, who were partners and joint traders ; and one Rice Vaughan proved a debt of 3251/. under the commission, and received a dividend of 45. in the pound. Afterwards Rice Vaughan, having likewise a sepa- rate bond from Stainer for the same debt, sued out a sepa- rate commission for it against Stainer, and petitioned that the commissioners and assignees under the joint commission might deliver up the separate effects of Stainer, in order that the petitioner might receive a further satisfaction towards his debt out of Stainer's separate estate. On the other hand the joint creditors petitioned, that the separate ' commission might be superseded, forasmuch as Rice Vaughan, on whose petition the separate commission had issued, had been allowed for the same debt under the joint commission, viz. 4s. in the pound. But it was ordered, that the as- signees under the joint commission should deliver up the separate effects of Stainer, to the end that they might be applied to pay the separate bond. And it was insisted that 558 Ex PAETE KOWLANDSON. this was a case in point ; for here Rice Yaughan was a joint creditor of all the partners, and also a separte creditor of owe, and had proved his debt, and taken his dividend under the joint commission; nothwithstanding which he was allowed relief as a separate creditor for the same debt. •Lord Chancellor Talbot said, he observed this difference between the cases. In that which had been cited, there was a single bond given as a collateral security for the same debt, by one of the partners only; but in the principal case, the bond upon which the petitioner would seek relief under the separate commission, was not only. for the same debt, but given by both the parties ; and the plea in abatement would have been proper, had the bond been sued at the same time both as a joint and several bond, which cannot be, where there is only a separate bond. Then taking this to be the rule at law, that a joint and several bond cannot be sued at one and the same time, both jointly and severally, but that the obligee must make his election ;. so it ought to be (he said) in the principal case. And this would best answer the general end of the statutes concerning bankrupts, which provide, that all debts shall be paid equally, as in con- science they are all equal ; that it is upon this foundation that debts of a partnership have been ordered to be first paid out of the partnership effects (see Horsey s Case, 3 P. Wms. ^i 1 Q-] 23), and *that afterwards the joint creditors, when the separate creditors are satisfied, may come in upon the separate effects, but not before ; and so vice versd, the separate creditors are to ^onie in first on the separate effects of the partners, a1id if these are not sufficient, ' then on the joint effects, after the partnership creditors are paid. And therefore, that there might be an equality in the principal case, his lordship ordered that the petitioner should make his election, whether he would come in for a satisfac- tion out of the partnership, or the separate effects, but not Ex PAETE EOWLANDSON. 559 out of both at the same time ; however, his having received his dividend out of the joint effects, on the joint commission, whilst this matter was in suspense, was not to bind him ; and provided he brought that back again, he might come in for a satisfaction out of the separate effects. In the often-cited and leading case of Ex parte Rowlandson, Lord Talbot lays down the well-known rule as to the mode in which on the bankruptcy of a firm the joint property of the firm, and the sepa- rate property of its various members, is to be distributed amongst the joint and separate creditors, viz., the debts of a partnership (that is to say, the joint debts) will be ordered to be paid first out of the partnership or joint eifects, and afterwards the joint creditors, when the separate creditors are satisfied, may come in upon the separate efiects, but not before : and so vice vend the separate cred- itors are to come in first on the separate efi"ects of the partners, and if these are not sufficient, then on the joint efiects, after the part- nership or joint creditors are paid : ante, p. 409; and see Ex parte Cook, 2 P. Wms. 500 ; Ex parte Crowder, 2 Vern. 706 ; Twiss v. Massey, 1 Atk. 67. The question, however, which arose for the decision of Lord Tal- bot was whether when a creditor ias a security which is both joint and several he has a right to a double proof, that is to say, whether he may prove at the same time against the joint and separate estates, or whether he must elect against which of the estates he will pro- ceed. Lord Talbot ultimately, though evidently after considerable doubt and hesitation, determined that the creditor was bound to make his election. How far this decision is founded upon correct principles will be hereafter considered ; it is proposed however in discussing the doc- trine laid down in the principal case, and with a view to their eluci- dation, to make a few observations under the following heads : — First, what is *joint and what is separate estate. Secondly, r*^-. -. as to joint, separate, and joint and separate debts. Thirdly, as to the right of proof as against joint and separate estates. Fourthly, proof against both joint and separate estates, and as to the election of proof. 560 Ex PARTE ROWLANDSON. 1. WTiat is joint and what is separate Estate. — Joint estate is that in which the partners are jointly interested for the purposes of the partnership, at the time of the bankruptcy. Separate estate is that in which the partners are each separately interested at the time of the bankruptcy : Coll. Partn. 595, 2d ed. Partners may by their articles, of partnership agree what shall be joint and what shall be separate estate : Id. 596. What was made joint estate by any such agreement will remain such joint estate until it is converted into separate estate, or unless, after a dissolution, it be considered to be separate estate by coming within the reputed ownership clause of the Bankrupt Law Consoli- dation Act, 12 & 13 Vict. c. 106, s. 125. But that will not be the case where after a dissolution the partnership effects are in the actual possession of one of the partners for the purpose of winding up the affairs of the partnership. See Ex parte Williams, 11 Ves. 6. Formerly it was held that if a dormant partner allowed the joint effects to be in the possession, order, and disposition of the osten- sible partner, on the bankruptcy of the latter (Ex parte Enderby, 2 B. & C. 389 (9 E. C. L. R.); 3 D. & R. 6m, overruling Coidwell V. Gregory, 1 Price 119), even although there might have been an agreement (Ex parte Wood, De G-. 134) or an assignment upon trust (Ex parte Dyster, 2 Rose 256 ; Ex parte Barrow, Id. 252), to pay the partnership debts, the whole of the effects would pass to the assignees. See also Smith v. Watson, 2 B. & C. 401 (9 E. C. L. R.); 3 D. & R. 751 (16 E. C. L. R.); Ex parte Chuck, Mont. 364, 457 ; Ex parte Jennings, Mont. 45 ; 8 Bing. 469. So where traders in copartnership having admitted a dormant partner, and his share in the joint stock being in the order and dis- position of the ostensible partners, was distributable as such, it was held that the creditors of the new firm and the creditors of the old firm, who had notice that a dormant partner had been admitted, were entitled to prove their debts, pari passu with the other cred- itors of the old firm : Ex parte Chuck, Mont. Rep. 364, 457 ; 8 Bing. 469 (21 E. C. L. R.). The doctrine, however, laid down in Ex parte Enderby, 2 B. & C. 389 (9 E. C. L. R.), and similar cases, appears to be overruled in the recent case of Reynolds v. Bowley, 2 Law Rep. Q. B. 474, and see the note to Joy v. Campbell, post. Property, moreover, whether land (Forster v. Hale, 3 Ves. 696 ; Ex PARTE R0WLAND80N. • 561 5 Ves. 308) or shares in a company (Ex parte Connell, 3 Deac. 201 ; Ex parte Hinds, 3 De Cr. & Sm. 613), purchased -with the *partnership money will, until the contrary be shown, be presumed to be the joint property of the firm, although the L conveyance or transfer may have been taken in the name of one of the partners only. See also Smith v. Smith, 5 Ves. 193 ; Rob- ley V. Brooke, 7 Bligh 90 ; Morris v. Barrett, 3 You. & Jer. 384. But this presumption may be rebutted by showing that it was not the intention of the firm to acquire the property, as, for instance, where the purchase-money was lent by the firm to the partner (Smith V. Smith, 5 Ves. 189), or was in good faith purchased by him for his own private purposes : Walton v. Butler, 29 Beav. 429 ; Ex parte Emly, 1 Rose 64. Where however an individual partner obtains an advantage in fraud of his copartners, as, for instance, by obtaining a renewal of a lease behind their backs, he will be held a trustee for them, and it will in equity be considered as joint property. See Peatherstonhaugh v. Fenwick, 17 Ves. 298, 311 ; and cases cited ante, p. 359. Secus where the advantage is not connected with the partnership : Campbell v. Mullett, 2 Swanst. 551 ; Moffat v. Farquharson, 2 Bro. C. C. 338. Property .acquired by a continuing partner after the dissolution, but before the winding up of the partnership, will not necessarily be copsidered partnership property, although the business was car- ried on without the consent of the other partners : Nerot v. Bur- nand, 4 Russ. 247, 2 Bligh, N. S. 215 ; see also Payne v. Hornby, 25 Beav. 280. Separate Estate. — Whatever is separate estate at the time of the partnership or is agreed by the partners to be separate estate will continue to be such (Smith v.. Smith, 5 Ves. 189; 1 Hov. Supp. 602 ; Ex parte Smith, 3 Madd. 63 ; Buck 149), until it be cpnverted (see note to Ex parte Ruffin, ante, p. 387), or unless when it con- sists of goods and chattels it is in the reputed ownership of the firm at the time of the bankruptcy, and in that case it will be considered- as joint estate: Ex parte Hare, 2 Mont. & A. 478; 1 Deac. 16; Ex parte Smith, 3 Madd. 63 ; Buck 149 ; Ex parte Hunter, 2 Rose 382 ; Eix parte Jackson, 1 Ves. 131 ; Horn v. Baker, 9 East 215 ;. Ex parte Arbouin, 1 De Gex 359. Whatever is converted into separate estate, and is no longer in^ 36 562 ■ Ex PARTE ROWLANDSON. the order and disposition of the partnership, is separate estate under the bankruptcy : Coll. Part. 603, 2d ed. ; Ex parte Wood, 1 De Gex 134. As to the conversion of joint into separate and separate into joint estates, see Ex parte Ruffin, ante, p. 397, and note. 2. As to joint, separate, and joint and separate Debts. — The debts of creditors who in the administration of the assets of a bankrupt firm may prove against their estates are divisible into three classes : ^^-, q-| First, joint debts ; secondly, separate debts ; and *thirdly^ debts which are both joint and separate. Joint debts are those for which the firm is jointly liable, but for which the individual members of the firm have not made themselves separately liable. For instance, debts contracted by a firm for goods supplied or for money advanced to themj for bills duly accepted or endorsed, although only by one of the partners in the name of the partnership, or even if the partnership name has been improperly or fraudulently used, if the bills are in the hands of a bond fide holder for value, and although the partner fraudulently using the name of the partnership has alone derived benefit from the transac- .tion. See Sandilands v. Mar^h, ante, p. 304 ; Ex parte Bonbonus, 8 Ves. 642. Separate debts are those which an individual partner ha^ con- tracted for goods or money supplied or advanced to himself, or for bills which he has accepted in his own name (Ex parte Bolitho, Buck 100), or even in the name of the partnership, if the bills were ■given for a private debt of the individual partner, unless the drawer can show that they were given with the consent of the other part- ners (Ex parte Thorpe, 3 Mont. & A. 716), and see note to Sandi- lands V. Marsh, ante, p. 303. Where a debt has been contracted by one of a firm without the authority express or implied of the firm — as, for instance, where a partner has borrowed money in his own name, the mere fact that the firm have had the benefit of the money so borrowed, will not make the lender the joint creditor of the firm, and thus enable him to prove against the joint estate: Ex parte Wheatley, Cooke's Bank. Law 534, 8th ed. ; Ex parte Peele, 6 Ves. 602 ; Ex parte Emly, 1 Rose 65. A debt is joint and separate when the firm collectively and each Ex PARTE ROWLANDSON. 563 partner separately is liable for its payment. As, for instance, where a firm gives a bond or a promissory note in which they are bound or promise to pay jointly and severally : Ex parte Christie, Mont. & Bl, 354. Where breaches of trusts or frauds have been committed by a firm, the members composing it have been held to be jointly and severally indebted to the cestui que trust and the persons whom they have defrauded : Ex parte Poulsori, De Gex 79 ; Ex parte Barn- wall, 6 De G., M. & G. 291 ; Ex parte Woodin, 3 M., D. & D. 399 ; Ex parte The Unity Banking Association, 3 De G. &.J. 63; and see cases cited 1 Gri£f. & Holmes on Bankruptcy, p. 667-669. See cases, p. 431, post. Where a debt is due from a partnership consisting of two part- ners, one of whom is a dormant partner, the creditor may prove either as a joint creditor of the firm or as a separate creditor of both the dormant and ostensible partner. " In bankruptcy," says Lord Eldon, 0., "it has been taken as unquestionable, that if I deal with A., he cannot with reference to that transaction say, there is a contract between him and B. of *whom I know nothing; r:^A-iA thus compelling me to be a joint creditor of those two, whose joint property may be scarcely anything, and not the sole creditor of the only man I knew. I have said in this place, follow- ing q, series of precedents, that the joint creditors may elect ; that a man, purchasing from or selling to A., not knowing of any part- ner, may consider A. as the sole vendor or vendee. He may, find- ing that B. has taken a share of the profits, elect to go against him also, but cannot be compelled certainly :" Ex parte Norfolk, 19 Ves. 458 : and see Ex parte Hodgkinson, Id. 294 ; Ex parte Law, 3 Deac. 541. Upon the bankruptcy of a firm or an individual member of it, an important question sometimes arises, viz., whether a joint may not have been converted into a separate debt, or, on the other hand, a separate into a joint debt. Independently of the doctrine of merger, the conversion of joint into separate or of separate into joint debts may be efi'ected by the assent of all parties. Thus if a partnership be dissolved upon the terms that one part- ner is to continue the business and to pay all the debts, that arrange- ment between the partners merely will not convert the joint debts of the firm into separate debts of the continuing partner ; but it 564 Ex PAKTE KOWLANDSON. will have that effect, if it be acceded to by the creditors : Ex parte Freeman, Buck 471; Ex parte Fry, 1 G. & J. 96; Ex parte Gurney, 2 M., D. & D. 541 ; Ex parte Appleby, 2 Deac. 482. So likewise the creditors of one person who enters into partner- ship with another, upon the terms that the debts of the one are to become the joint debts of the two, will not thereby become joirit debts unless the creditors accede to that arrangement: -Ex parte Jackson, 1 "Ves. Juti. 131 ; Ex parte Peele, 6 Ves. 602 ; Ex parte Williams, Buck 13 ; Ex parte Parker, 2 M., D. & D. 511; Ex parte Graham, Id. 781 ; Ex parte Hitchcock, 3 Deac. 507 ; Kolfe v. Flower, 1 Law Rep. P. C. 27. The best evidence of an intention to convert is by an instrument in writing,, and if it imposes any terms upon the creditor, he must show that they have been complied with : Ex parte Fairlie, Mont. 17. A parol agreement, however, or conduct from which an agree- ment may be inferred, is suflScient to effect a conversion, and also to extinguish the original obligation. See Ex parte Lane, 1 De Gex 300; 10 Jur. 382; 16 L. J. Bank. 4;. there a father and son trading together in partnership became bankrupts. A debt had been due from the father alone to the petitioner, but from the evi- dence it appeared that at the formation of the partnership all parties considered that the firm became liable to pay the debts, tha^t one of the bankrupts told the petitioner so, and that she assented, and that subsequent transactions proceeded on that footing. It was held by Sir J. L. Knight Bruce, C. J., that the *separate J debt of the father was converted into a joint debt of the firm. "If," said his honor, "A. be a creditor of B., and B. and 0. purpose to enter into, or have entered into partnership, and say to A., ' We wish this debt to be a debt from us both, and we will pay it,' and A. accedes to that, although there is no writing, the agreement is valid and effectual, and is not impeached or affected by the Statute of Frauds. The effect of such an agreement is to ex- ■ tinguish the first debt, and for a valuable consideration to substitute the second debt. These very words need not be used by the parties, if there is sufficient to show that the intention was so ; that will be as effectual as if the most formal expression had been given to the intention. Creditors moreover who seek to show conversion of a debt, must prove that they gave their assent to such conversion before the Ex PARTE KOWLANDSON. 565 bankruptcy, because after the bankruptcy the bankrupt becomes in- capable of entering into a contract : Ex parte Freeman, Buck 471 ; see Ex parte Fry, 1 G. & J. 96 ; Ex parte Hunter, 1 Atk. 223. As the doctrine of merger by which a lower merges in a higher security, or in a judgment applies to debts in bankruptcy as well as at law, it is sometimes important in determining the question, whether a debt is joint or separate. Thus if a separate bond be given to secure a joint debt, it will destroy the joint debt and create a separate debt: Ex parte Hernaman, 12 Jur. 643; Ex parte Flintoff, 3 M., D. &. D. 726. • Upon the same principle when a creditor obtains a judgment against one of two partners for a joint debt, the joint debt both at law and in equity is merged in the judgment, and the ari passu with the individual creditors : Ex parte Jewett, 16 Amer. L. Reg. 291 ; s. c. 1 Bankrupt Reg. 130 ; Ex parte Downing, 3 Bankrupt Reg. 182 ; s. c. 3 Amer. L. Times 165. Where one of two partners sells his interest in the concern to his copartner, taking his notes therefor and the latter becomes bankrupt, leaving some of the notes unpaid, the former cannot receive a dividend until after the firms debts have been paid: Ex parte Jewett, 16 Amer. L. Reg. 294; s. c. Bankrupt Reg. 131. The obligee in a joint and several bond given by the members of a firm, is entitled to dividends out of the several assets ; Ex PARTE ROWLANDSON. 591 the firm and its several members having been adjudged bankrupts : Ex parte BigeloT, 2 Bankrupt Reg. 121. By the twentieth section of the same Act it is provided, that " when a creditor has a mortgage or pledge of real or personal property of the bank- rupt, or a lien thereon for securing the payment of a debt owing to him from the bankrupt, he shall be admitted as a creditor only for the balance of the debt, after deducting the value of such property, to be ascertained by agreement between him and the assignee or by a sale thereof, to be made in such manner as the court shall direct, or the creditor may release or convey his claims to the assignee upon such property and be admitted to prove his whole debt. If the value of the property exceeds the sum for which it is so held as security, the assignee may release to the creditor, the bankrupt's right of redemption therein on receiving such excess, or he may sell the property, subject to the claim of the creditor thereon." A secured creditor can only prove fbr his balance : Ex parte Bridgman, 1 Bankrupt Reg. 59; Ex parte Bolton, Id. 83; Ex parte Winn, Id. 131. He may prove without, surrendering his securities; he is to be deemed a general' creditor after exhausting them : Ex parte Ruehle, 2 Amer. L. Times 59 ; Ex parte Campbell, 16 Amer. L. Reg. 100 ; Jones v. Leach, 1 Bankrupt Reg. 165; Ex parte Bigelow, Id. 186; s. o. 1 Amer. L. Times 95; Davis v. Delaney, 2 Bankrupt Reg. 125. 592 MACE V. CADELL. *437] *MACE V. CADELL. Novemler 2Uh, 1774. [Reported Cowp. 232.] Bankettptcy-^^Reputed Ownership.] — A woman permitted a man to have the use of furniture — her property, and she had falsely declared that the man was her husband. Held, that the furniture belonged to the assignees of the man who had become bankrupt, as he was the reputed owner, and had the disposition of it as owner. Teover for goods. Upon showing cause why the verdict, gfven in this case for the plaintiff, should not he set aside, and a nonsuit entered, the Court took time to consider. Lord Mansfield, C. J., now delivered the unanimous opinion of the Court^ as follows : — The plaintiff Mace kept a puhlic-house, had a license, and said she was married to one Penrice. She went to the Bxcise-ofBce, had his name entered in the books, with a note in the margin " married." Penrice had the license, and continued in possession of the house and goods from that time till he absconded and went to Pimlico, which was an act of bankruptcy. Mace, the plaintiff, first claimed the goods in question, under a bill of sale from Penrice ; but afterwards as her own original pro- perty, and denied that Penrice and she were married. Penrice was examined, and said that it was not till within three weeks before he went away that he knew whether he should marry her or not. MACE V. CADELL. 593 At the trial a doubt occurred to me, whether this case did not come within the statute 21 Jac. I. c. 19, s. 11. For the possession which the bankrupt had of these goods, was em- phatically a possession of them as Ms own, and kept by him as such. It was suggested there was a similar case depend- ing in the C. B., where the question was, whether the enact- ing clause of the eleventh section extends further than the preamble of that section, so as to include *goods not rss^qn originally the lanJcrupfs. The preamble^ only says, " And for that it often falls out that many persons, before they become bankrupts, do convey their goods to other men, upon good consideration, yet still do keep the same, and are reputed owners thereof, and dispose of the same as their own." But the words of the enacting part are as follows : " Be it enacted, that if any person, at such time as he shall become bankrupt, shall hy the consent of the true owner, etc., have in his possession, etc., any goods, etc., whereof he shaU be reputed owner, the Commissioners shall have power to sell the same in like manner as any other part of the bank- rupt's estate." These words clearly extend to other persons' goods, as well as to those which were originally the bankrupt's property. For the sake of conformity, we were desirous to stay till the Court of Common Pleas had given their opinion. But that case, we understand, is made up. We have considered the general question ; and to be sure there is a variety of mooting in the books without any de- termination. But if the statute meant to comprehend nothing more than is contained in the preamble, it means nothing at all. Because even "before the statute, if a man had conveyed his own goods to a third person, and had kept the possession, such possession would have been void, as ' The preamble to the 11th section, which was by mistake included in the 10th, gave rise to some doubt, removed however by Maoe v. Cadell, whether the 11th section was not confined in its application to property which had once been the bankrupt's. The preamble or recital, however, which gave rise to the doubt was omitted in 6 Geo. IV. c. 16, s. 17, and also in 12 & 13 Vict. c. 106, s. 125. .38 594 LINGHAM v. BIGGS. being fraudulent, according to the doctrine in Twines Case, 3 Rep. 81. At the same time, the statute does not extend to all possible cases, where one man has another man's goods in his possession. It does not extend to the case of factors or goldsmiths,- who have the possession of other men's goods merely as trustees, or under a bare authority, to sell for the use of their principal ; but the goods must be such as the party suffers the trader to seU as Ms own. Therefore upon this ground we are all of opinion that the verdict ought to be set aside. But in the consideration of this general question another point appeared, upon which we are equally clear ; namely, that after a solemn declaration by the plaintiff that she was married to Penrice, and that these were the goods of Pen- rice in her right, she shall never be allowed to say, that she was not married to him, *and that the goods were her J sole property. On either ground, therefore, the ver- dict is wrong. If such a practice were to be allowed, it would be laying a trap for persons to deal with bankrupts. Per Cur. Let the verdict be set aside, and nonsuit entered. LINGHAM V. BIGGS and Another. Trin. Term, 2^1 th Geo. III. 1797. [Reported 1 Bos. & Pull. 82.] Reputed Qwnerehip.] — The furniture of a coffee-house was taken in execution hy a creditor, and without ever leing re- moved, was let ly him to the keeper of the coffee-house, who became bankrupt while in possession of it. Held, that the assignees might seize it under the 21 Jac. I.e. 19, s. 11. LINGHAM V. BIGGS. 595 Trover against the defendants, who were the assignees of Anne Munday, a bankrupt, for all the household furniture, and other articles belonging to a coffee-house. This cause was tried before Eyre, C. J., at Guildhall sit- tings after last Easter Term. Anne Munday, the bankrupt, was the widow of a person who had kept a coffee-house, and being indebted to the plaintiff, gave him a warrant of attorney for 800/., under which he entered up judgment, and took in execution the goods in question. They were valued by the sheriff at 337/. 13s. 6d., and thereupon a bill of sale was made out by the sheriff at that price to Thomas Lingham, the plain- tiff's brother, in trust for the plaintiff. , In June, 1791, articles of agreement under seal were entered into between the said T. Lingham, the plaintiff, and Anne Munday, by which the plaintiff let the goods to Anne Munday at the yearly rent of 27/! for four years, and she covenanted not to remove them from the coffee-house with- out the plaintiff's consent. The deed contained a proviso that the plaintiff should enter and *take possession rtnAAn on failure in the payment of rent. Anne Munday continued in possession of the goods beyond the four years, and until they were seized under the commission. At the trial an objection being taken to the plaintiff's recovery on the 21 Jac. I. c. 19, s. 11, the Chief Justice doubted whether this case were within it, and a verdict was given for the defendant, with liberty to enter a verdict for the plaintiff, damages 337/. 13s. Qd. if the Court should be of opinion that it was. Adair, Serjt., having accordingly obtained a rule to show cause why the verdict should not be entered for the plaintiff, Cochell, Serjt., showed cause. The 21 Jac, being a con- siderable extension of the bankrupt laws in favor of cred- itors, ought to receive a liberal construction. It differs from 596 LINGHAM v. BIGGS. the 13 Eliz., which only provided against fraudulent con- veyances; but this statute attaches on all goods left in the hands of a bankrupt, even without fraud, if the bankrupt has thereby obtained a false credit with the world. It was determined in Stevens y. Sole (cited 1 Atk. 170; Cook's Bankrupt Laws 229), that an ostensible possession of chattels by the bankrupt was sufficient to entitle the as- signee under the 21 Jac. Now here Mrs. Munday had as full and ostensible a possession as possible; she had the use of the articles in question, and they were of a perish- able nature. Possession of movables imports property ; and on that ground a distinction is taken between a mortgage of realty and a mortgage of chattels ; in the latter case the supposition of ownership can only be repelled by notice., In Rt/all V. Rolle, 1 Atk. 165, Lord Hardwicke decided on the spirit, not on the words of the act, and thought that the 11th section ought to be governed by the preamble at the end of the 10th section. This case cannot be compared to that of a banker or a factor, because they are known to deal upon commission; nor to that of furniture in lodgings, which is known not to belong to the person in possession; therefore the world is not deceived. The case of Bryson V. WyUe, 1 Bos. & Pull. 83 n.; Cook's Bankrupt Laws 234, is exactly like the one at bar : now that has been recognised at law, and still remains untouched. The more modern cases, where the rule has been narrowed, are distinguishable from that and from the present. In Walker v. BurneU, Doug. 317, the bankrupt held the goods for a special pur- pose, of which the general creditors had notice. In Collins V. Forbes, 3 Term Rep. 316, the timber was appropriated *4.4.1 -\ ^^^ special purpose, and the bankrupt had not *such -■ an ownership as would give him credit with the world. So also in Jarman v. Woolloten, 3 Term Rep. 618, Buller, J., says, "It is sufficient to say, that thfe husband LINGHAM V. BIGGS. 597 had not the order and disposition of this property with the consent of the real owner, the trustee." Adair, Serjt., in support of the rule. — All personal pro- perty of which a bankrupt has the possession, is not within the object of the statute. The legislature, not choosing to go that length, added the words " order and disposition," etc., " sale and alteration," etc., which words must be rejected if the mere circumstances of possession and reputed ownership are sufficient. Indeed, if this were the case, job coaches, and horses, and furniture in lodgings would be brought within the statute. The act was not intended to interfere with anything but the stock in trade, the possession of which necessarily implies the order and 'disposition, sale and alterar tion, etc.; for a trader who is left in possession of his stock does acts every day which make him the reputed owner, and give him a degree of credit beyond what arises from the naked possession. All the cases cited for the defend- ant, except Bryson v. Wylie, are cases of mortgage. In mortgages of realty the absolute property vests in the mort- gagee, though the mortgagor continue in possession ; but in mortgages of personalty it is otherwise : there the property is only pledged as a security, and the absolute ownership does not pass de facto till default in payment of the money. The doctrine of specific liens agrees with this principle, where a person is always held to have parted with the lien when he parts with the possession: Bryson v. Wylie was a case of stock in trade and implements of a profession, which come so directly within the act as not to be taken out of it by any private agreement. Lord Mansfield there calls it *' a new experiment to defeat the bankrupt laws," which he would not have done if he had considered the act as extend- ing to household furniture. The case of Collins v. Forles was within all the mischief contended for : Kent was the ostensible and reputed owner, and all the arguments with respect to false credit were urged : there no visible altera^ 598 LINGHAM v. BIGGS. tion of the property took place ; but here there was an act of notoriety, — there was an execution by matter of record executed in the house, and therefore a visible alteration both by law and fact. Jarman v. Woolhton is the strongest case for the plaintiff; for the presumption of property in a hus- band is of course stronger than in a stranger ; and the jury • found a verdict *for the defendant as to the stock in -' trade, and for the plaintiff as to the furniture. Marshall, Serjt., on the same side. Our. adv. vult. This day the judgment of the Court was delivered by Eyre, C. J. — This stood over in order to give the Court an opportunity of looking 'into the case of Byall v. Rolle. We Were desirous of reading over that case, lest we should at all break in upon what was there so solemnly decided. In effect there were but two points then agitated, and re- solved : — 1st. Whether a mortgagee of goods were a true owner within the 21 Jac; and much labor was employed, and learned distinctions taken between Hypothecation and Pignus, absolute and conditional sale, in order to show that he ought not to be so considered ; but by the unanimous opinion of the chancellor and judges it was ruled, that a mortgagee was to be considered as the true owner, in oppo- sition to the reputed owner. 2dly. Whether the trustee of the partner of a mortgagee was to be considered as the true owner, and the mortgagor the reputed owner within the statute. But it is very obvious that neither of these points H^uch affects the present case. Perhaps the cases which, fall within the statute of James may be divided into two classes : 1st. ,Where goods not originally the property of the bankrupt are left in his order and disposition. In Ryall v. Rolle, Lord Hardwicke inti- mates a pretty, strong opinion that the preamble should govern the eleventh clause, and confine it to cases where the baiikrupt was the original owner ; but in latter times, Mace LINGHAM V. BIGGS. 599 V. Cadell, Cowp. 232, ante, p. 383, the statute has been con- sidered as a remedial act ; and it has been thought, that although the bankrupt was not the original owner, yet if he had in his possession the goods of another person, they fell within the statute. This has formed a class of cases clearly within the 21 Jac. as the first class. Many cases have cer- tainly been taken out of this class by exceptions, as those of factors. Though Ryall v. Rolle goes no further than I have men- tioned, yet thus far it may be made use of as an authority here, that it was assumed throughout the whole discussion, both by the bench and the bar, that the words " goods and chattels" in the statute was not to be confined to stock in trade or utensils. The words were there supposed to in- clude choses in action, which might *pass by an Act r^^^^o of Parliament, though they could not by bill of sale. The case of an assignment by a bankrupt of a bond which he retains in his possession, and consequently of which he has the disposition, so that he may receive the money, shows how the words " order and disposition " and " reputed owner " are to be understood. They are to be understood thus. Being allowed to have possession of goods under cir- cumstances which give the reputation of ownership, brings the case within the statute ; and it is fair so to consider them, because every man who can be said to be the reputed owner, has incidentally the order and disposition ; not in- deed between the parties, but as to general appearance. It is impossible for the world at large to inquire what accounts may exist between the parties; general credit with the world is aU ; if the party be the reputed owner, it imports that he has the order and the disposition, and that he may seU. Admitting that the words " order and disposition, sale and alteration," might refer to such goods only as a party has in his shop, and ready to sell to customers, yet they cannot refer to the actual sale, as they seem to import ; for if the 600 LINGHAM v. BIGGS. goods are once sold, they are out of the power of the i assignees. The act supposes them to remain in the posses- sion of the bankrupt, and because they remain there the assignees are allowed to take them. The words therefore must not have that absolute sense which they seem to bear, but must have a meaning consistent with the end proposed to be attained, by the statute. If a man be the reputed owner of goods, and appear to have the order and disposition of them, he must be understood to have taken upon himself the sale, order, and disposition within the meaning of this statute. We must suppose that he has done that which the act supposes ; and certainly to hold a construction at this day different from that of all the cases on this remedial law, could not be justified by the mere .letter of the act. The question then comes to this, — Can furniture be dis- tinguished from other goods and chattels, to which the statute would extend ? Now, I think it cannot, except so far as it may go to show that this bankrupt was not the reputed owner, did not appear to have, and therefore had not the order and disposition ; and it was fairly admitted by my brother Adair, that it was not worth while to go to another trial on that point ; Mrs. Munday had been in such possession, that no jury could have hesitated to pronounce her the reputed owner That being admitted, I think *it necessarily follows from her being the reputed J owner, that she will appear to the world to have the order and disposition, sale and alteration, etc. She' must clearly derive a credit from these appearances, and conse- quently, if the owner allows her to retain the property, how- ever fair that may be between herself and the o-wner, it must be a fraud upon the creditors. It has been suggested that this doctrine would go to an inconvenient length ; it was said, by way of instance, that no trader .could go into a ready-furnished house, or hire horses on a job, because possession would create a reputar LINGHAM V. BIGGS. 601 tion of ownership, and consequently the furniture and horses, would be liable to be seized. I admit that posses- sion is always evidence of ownership, and with nothing to oppose it, would create a reputation of it ; but it is evidence which may be opposed, and so satisfactorily opposed as to destroy that reputation. Let us pursue this idea. A respectable tradesman, residing in his own house in London, takes a journey for two months to Brighton, or some other seaport, and hires a ready-furnished house ; all the world would say that he was the reputed owner of the furniture of the house in London, and not the reputed owner of that in the house at Brighton. So as it is notorious that people do not always drive their own coaches and horses, possession in such a case is only equivocal, and too equivocal to create a reputation of ownership ; it would therefore be necessary to go into other evidence to determine of what character the possession was. I have no apprehension of this doctrine going to an inconvenient length. It has been suggested also, that most of the cases are cases of mortgage, and that they are not in their circumstances like the present. But when once it is determined that a mortgagee is an owner within the statute of James, they will be found to be the same in principle. Two cases have been principally relied on at the bar ; that for the defendant was Brysmy. Wylie, and that for the plaintiff was Jarman v. Woolloton, which last happened to be a case of furniture, and was held not to be within the statute of James. I am unable to perceive in those two cases, or in Collins v. Forbes, any difference in the rule of construction with respect to the statute. They are cases where the circumstances to which the statute was applicable lead the Court to different conclu- sions ; perhaps both of them were right; but it is sufficient to say that neither of them has anything in common with the present case : possibly they would not govern other 602 LINGHAM v. BIUGg. cases much nearer to them *m circumstances thait -■ this. Notwithstanding Bryson v. Wylie, I can sup- pose that a dyer may be in possession of a plant, without being ^he reputed owner ; I can also suppose cases where a trustee for a married woman, permitting the husband to take possession of the goods and chattels, and to become the re- puted owner to all the world, may lose these goods in conse- quence. We cannot argue from the circumstance of a dyer being in posession of a plant, and being the reputed owner, that therefore«thi& furniture shall be liable to be taken by the assignee; nor from the furniture being protected in Jarman v. WooUoton, that the furniture shall also be pro- tected here. As to the case of Collins v. Forbes^ we perfectly agree in that decision ; because Kent, the carpenter who was to do the work, was not, at the time he became bankrupt, in possession of the goods which were lying in the king's yard, and were in contemplation of law in the possession of the true owner, whoever he was. It was weU observed by Mr. Justice BuUer in Walker v. Burnell, that questions on the 21 Jac. have much more of fact than of law in them. I believe when once it is ascer- tained whether the bankrupt was the reputed owner or not, there would be very little difficulty in deciding. Fronj that reputed ownership false credit arises ; from that false credit arises the mischief; and to that mischief the remedy of the statute applies. This seems a fair and sound construction of the statute ; and the present being confessedly a case of reputed ownership, and the other terms of the eleventh section being incidental to reputed ownership, we think the verdict proper. Rule discharged.^ 1 On the decisions in that case, see the opinion of Mr. Justice Lawrence, as reported in Gordon v. The East India Company, 7 Term Rep. 237. 2 See Manton v. Moore, 7 Term Rep. 67. JOY V. CAMPBELL. 603 *JOY V. CAMPBELL. [*446 Mat/ 1, 2, 4, 5, 12, 1804. • [Reported 1 Soho. & Lef. 328.] Reputed Ownership.]— :Z'. holds shares in a irading company in trust for W., who hy his will appoints T. his residuary legatee, T. continues in possession of the shares and becomes bank- rupt. The shares are not within the meaning of the Bank- rupt Act, 11 ffe 12 Geo. III. c. 8, *. 9, inasmuch as T. is himself the true owner and proprietor thereof, subject however to the debts and legacies of W. The object of the Bankrupt Act, 11 dc 12 Geo. III. c. 8, s. 9, is to prevent deceit by a trader from the visible possession of property to which he is not entitled; that is, where the posses- sion is not in the true owner, but in one whom the true owner unconscientiously permits to have it. That credit has been given on the faith of the property does not bring the case within the Act. William Brown, deceased, was*, in and before the year 1787, a dormant partner in a mercantile house at Belfast, called the Sugar House Company, in which he possessed one-half of six shares, part of twenty shares of whifch the capital stock consisted, the other half of which six shares belonged to John Brown, his brother. WUUam Brown was also a dormant partner and had one-third of a share of the capital stock in another mercantile establishment, called the 604 JOY V. CAMPBELL. I Rope-walk Company, in which John and another brother, Thomas Brown, were concerned in the same manner and to the same extent, each having one-third of a share. In 1787 John Brown, beiag about to commence business as a banker, assigned his interest in the said two mercantile *4.4.71 concerns *to his brother William in trust for himself, and William executed a declaration of trust accord- ingly; and shortly after, WUliam, intending to enter into another banking-house, prevailed on Thomas (who was ap- prised of the f(jrmer trust) to become a trustee both for him and for John, for their respective shares in the said houses. The other partners having agreed to accept Thomas as a partner, an assignment was executed to him for merely nominal consideration, the object being to evade the pro- visions of the Bankers Act,^ and soon after the execution of the assignment Thomas cancelled the deed by cutting off the name and seal of William, and delivering back the deed so cancelled to WUliam, in whose possession it re- mained till his death. Thomas regularly received the divi- dends accruing from the said companies, and duly paid over to William his shares during his life, and gave credit to John, in his account with him, for the amount of his shares. During the period of these transactions Thomas carried on a distinct trade in partnership with John Oakman, under the firm of Brown and Oakman. , William Brown died in 1794 without issue, seised and possessed of considerable real and personal estates; having shortly before his death made and published his last will and testament, whereby amongst other pecuniary legacies he bequeathed to the plaintiff, William Brown Joy, son of his niece Mary Anne Joy, 1000/. to be paid when he should come of age, with interest, or sooner, at the option of his executors ; and in case W. B. Joy should die under the age of twenty-one years without having received his legacy, the » 29 Geo. II. c. 16. JOY V. CAMPBELL. 605 testator ordered and directed the same to go to and be paid in equal shares amongst the other children of the said Mary- Anne Joy, amongst whom he also bequeathed the further sum of 2000/. The testator then devised the farm and pre- mises at the "Throne," which was held under a lease for lives, to his nephew William Brown, son of his brother Thomas, to hold to him, his heirs, executors, administrators and assigns, from the time he should attain the age of twenty- one years; but in case his said nephew should die under the age of twenty-one years, he devised the said farm and premises to the next eldest son his said brother Thomas should happen to have, when such next eldest son should attain the age of twenty-one years, and to his heirs, exe- cutors, &c.; and in case no son of his said brother Thomas should attain the age of twenty-one years, then he devised *the said premises amongst the daughters of his said r^^^o brother, share and share alike : with this special limi- tation, that none of the said devises should take effect until the decease of Thomas; for that it was the testator's will, and he did thereby direct that his said brother should have and enjoy the free use and benefit, profits and advantages of the said farm and premises from the testator's decease, for the term of his natural life without impeachment of waste. The test9,tor then bequeathed 3000/., in equal shares, among the children of Thomas; and gave, devised, and bequeathed all the rest, residue, and remainder of his lands, tenements, freehold estates, effects, money, and securities for money, goods, chattels and worldly property of every discription and denomination whatsoever and wheresoever, unto his brother Thomas Brown, his heirs, executors, administra- tors, and assigns; and nominated his good friends John Campbell (to whom also he gave legacy of 100/.) and James Joy, with his brother Thomas Brown, to be exe- cutors and trustees of his will; directing further, that such j)f the legacies therein mentioned as should remain unpaid 606 JOY V. CAMPBELL. at- the end of twelve months from his decease, should be then well and sufficiently secured upon his freehold or per- sonal estates and assets, and should bear legal interest from thence until paid. All the executors proved the will, but as James Joy did not live at Belfast, where the property principally lay, it was managed by the others ; Thomas Brown contintdng until his bankruptcy in October 1798, to receive the dividends of the Sugar-house and Rope-walk Companies, as trustee, col- lecting debts due to the deceased, and paying some of his debts and legacies; and Campbell (who had been the part- ner of William in the Bank) retaining in his hands a sum of 5285^. Is. hd. belonging to his testator, which was lying in the bank .at the time of his death, and paying himself his legacy of 100^. With respect to this sum of 5285/. Is. 5rf. the following transactions took place. Campbell had in the lifetime of William Brown lent a sum of 4200/. to Brown and Oakman, on the joint note of William and John Brown and Brown and Oakman for 1500/., and of William Brown and Brown and Oakman for 2700/. Of this, part was paid in William Brown's lifetime, and there remained due at his death the sum of 3232/., which Campbell received from the bank, and lodged the notes in the bank to the credit of William Brown's account. Soon after, the bank settled ac- counts with Thomas Brown as *executor of William -■ Brown, on which occasion after deducting the said sum .of 3232./., and also a sum of 1540/. which had been previously paid to Thomas Brown, a balance of 513/. Is. bd. appeared due to the estate of William Brown, which was then paid him, and a receipt for the whole sum of 5285/. Is. hd. was given to the bank by Campbell and Thomas Brown as executors. At the same time, the notes not only of William Brown but of John Brown and of Brown and Oak- man, were given up to Thomas Brown, and no steps were JOY V. CAMPBELL. 607 ever taken to compel payment against either John Brown or Brown and Oakman. After the bankruptcy of Brown and Oakman (which did not take place until October, 1798), the assignees insisted on their right to have not only Thomas's original share in the Rope-walk Company, but also that which he held in trust for William, which trust he had admitted on his examination before the Commissioners ; and this claim, having been dis- puted by the executors of William, was submitted to arbi- trators, who decided in favor of the assignees; in conse- quence of which the value of that share was paid over to them by the company. Thomas Brown died on the 2d of July, 1801, before his son William Brown, or any of his children, had attained their age of twenty-one years. The present bill was filed on the 14th of January, 1803, by the children of Mary Anne Joy against John Campbell, James Joy, John Brown, and the assignees and children of Thomas Brown, charging that, owing the misapplication of the assets by Thomas Brown and Campbell, there was not a sufficiency left to pay them the legacies bequeathed to them by the will of William Brown, and praying that his executors should account, and that Campbell might answer in particular, for such part of the testator's estate as had been misapplied in the payment of the notes in which William was security for Thomas Brown and Brown and Oakman ; or that John Brown should contribute to the payment thereof; and that the award made in favor of the assignees of Thomas Brown might be set aside ; and that the whole real and per- sonal estate of WUliam might be decreed subject to his debts and legacies, and might be sold for the payment thereof, or that the plaintiffs might be permitted to claim as creditors on Thomas Brown's estate for the amount, and also for all sums received by him before his bankruptcy for William Brown on account of the two companies. 608 JOY V. CAMPBELL. *The Attorney-General and Mr. Saurin, Mr. Mayne -' and Mr. Joy, for the plaintiffs. Mr. Dunn and Mr. Bushe for the defendants, Campbell and Joy. Mr. ^a//and Mr. Bell, for the assignees of Thomas Brown. For the assignees it was urged that they had no knowl- edge of the alleged trust as to the shares in the two com- panies ; and insisted that when William Brown was about to become a banker, he assigned those interests bond fide to Thomas, who accordingly had ever after until his bankruptcy exercised the ostensible ownership over them ; that no de- claration of any trust appeared on the deed of assignment, which had come to the hands of the assignees ; but that even though the existence of the trust were proved, and though Thomas might have acknowledged it, such acknow- ledgment ought not to defeat the claims of his just cred- itors, who had given him credit on account of such supposed property. They insisted on the clause in the Bankrupt Act 11 & 12 Geo. III. c. 8, s. 9, by which it is enacted, " That if any person or persons shall become bankrupt, and at such time shall by the consent and permission of the true owner and proprietor have in their possession, order, and disposition, any goods or chattels whereof they shall be re- puted owners, and take upon them the sale, alteration, or disposition as owners (such goods excepted as shall be in the custody of such bankrupt by consignment or factorage), in every case the Commissioners or the major part of them shall have power to sell and dispose of the same to and for the benefit of the creditors who shall seek relief by the said commission, as fully as any other part of the estate of the said bankrupt," and cited the cases of*Lingham v. Biggs, 1 Bos. & Pul. 82, ante, p. 439; Bryson v. Wyllie, 1 Bos. & Pul. 83 n. ; and Gordon v. East India Company, 7 Term Rep. 228, to show that being allowed td have possession of goods under circumstances which gave the reputation of ownership brings the case within this clause of the statute. It was JOY V. CAMPBELL. 609 also argued on their behalf, that the trust was created in fraud of the law, for the purpose of defeating the policy of the Bankers Act, and therefore was of such a nature as a Court of Equity should not recognise. If William Brown in his lifetime had quit the business of a banker, and then had filed his bill to compel Thomas to declare the trust, he must have stated in that bill the purpose for which it was created, and in that case could he have been entitled to an execution of the trust ? And if not, can the *plain- tiffs, claiming as volunteers under him, be in a better ■- situation?. It was urged that if either of the companies had sustained loss in trade, that loss must have been borne by the personal estate of Thomas, and not that of William, in- asmuch as the deeds of co-partnership were executed by Thomas only, and there was no indemnity or any other se- curity given by William. It was submitted therefore that the award was right, and that the assignees were entitled to retain these shares for the benefit of the creditors. On behalf of John Campbell, it was said that he, being an aged and very infirm man, had undertaken the executorship put of respect to the memory of the testator, and without any intention of acting ; which was the less necessary on his part, as James Joy and Thomas BroWn were both active men, conversant in business, and particularly interested in the due management of the fund ; the first, on account of legacies given to his chUdren (the plaintiffs) ; and the other, as being entitled to the residuum. With regard to the trans- action respecting the property of William Brown whicL remained in the bank at the time of his death (which was the only particular in which Campbell appeared at all to. have intermeddled), so far as the amount of the notes in which William Brown had joined, he had made himself debtor to Campbell, who had lent the money on the credit of the balance in the bank, and had .a right to distrain for that debt ; he was not, as creditor of William Brown, bound 39 610 JOY V. CAMPBELL. to resort to the other makers of the notes ; the acting exec- utor had»the notes in his hands from the time the accounts were settled with the bank. At that time, John Brown and Brown and Oakman were in full credit, and Campbell had no reason to suppose that the assets of William Brown were in danger from non-payment of those notes ; he had, on the contrary, sufficient reason to rely on Thomas Brown's procuring payment of them, he being a residuary legatee, the person most likely to be interested in them. Then the handing over to Thomas Brown the notes (which had in fact become the property of William Brown instead of the amount of them retained by Campbell) was payment to Thomas Brown, and the circumstance of Campbell's joining in the receipt to the bank ought not to charge him, as it was a mere formal act, and necessary for the satisfaction of his partner in the bank. The signing of the receipt is not of itself conclusive evidence in equity of receiving, property ^ _ -. (Scwrfield v. Howes, 3 Bro. 0. C, 95) ; *but here there J is evidence that the property was not received by Campbell, though he signed the receipt : Westley v. Clarke, 1 P. Wms. 83 n. Lord Chancellor Redesdale. — I shall consider further the point with respect to Campbell and the " Throne " pro- perty. The only other question is with respect to the shares in the partnership concerns. There is no ground for holding that the transaction is of snch a nature as disabled Thomas Brown from saying that the shares in the Sugar-house and Rope-walk Companies, assigned by William to him, were not the' assets of William. I will not enter into a discussion of the question, whether William might not have compelled Thomas to account with him as trustee if he had brought a bill in his lifetime ; but as between the creditors and legatees of William and Thomas there is no doubt in point of conscience, Thomas JOY V. CAMPBELL. 611 was bound to consider this a trust for them, and accordingly he does after the death of William acknowledge himself to be a trustee ; and I should have conceived that if the ques- tion had arisen on an action brought against Thomas by creditors of William, whether there were or were not assets in his hands, the declaration which he made would preclude him from saying that they were not ; therefore the case is confined to this question, whether under the operation of the bankrupt laws this property is so bound that notwith- standing the bankrupt himself is so subject in equity and conscience to the creditors, that he might have been charged at law, yet that the property shall not be liable in the hands of the assignees by reason of the clause in the statute. Now that clause refers to chattels in the possession of the bankrupt ; " in his order and disposition with consent of the true owner ;" that means, where the possession, order, and dis- position, is in a person who is not the owner — to whom they do not properly helong, and who ought not to have them, but whom the owner permits, unconscientiously as the Act supposes, to have such order and disposition. The object was to prevent deceit by a trader from the vis- ible possession of a property to which he was not entitled ; but in the construction of the Act the nature of the posses- sion has always been considered, and the words have been construed to mean possession of the goods of another with the consent of the true owner. Now who was the true owner of this property after the death of *William ? The r^^^^^, true owner was Thomas, subject to the payment of the debts and legacies of William. Thomas was the acting executor and residuary legatee, and the possession was there- fore according to his right, but even as against him charge- able in favor of creditors and legatees, the creditors having a right to charge at law or in equity-, the legatees in equity only. In all those cases in which that clause in the act has been permitted to have' the effect of divesting the right in 61;: OKji V. vjAmi-ujiiijij. the person who has a right to the property, the nature of the possession has always been considered, and whether it was according to right.^ In cases of specific chattels, which are settled on marriage upon the husband for life, and then on the children, the possession has been with the party, the bankrupt, with the consent of the party creating the trust, and so far, with the consent of the true owner ; but the pos- session was according to the title qualified by the rights of others ; and wherever that has been the case, I take it the law has never been construed to extend to destroy that right of property ; but it has been confined to those cases where the sole and absolute owner of the property has permitted it to remain in possession of the trader, in whose possession it ought not to be. In Brt/son v. Wt/lie, 1 Bos. & P. 83, n., and cases of that description, the construction has been this : the property was in the bankrupt ; he meant to make a transfer of it, as a security, and to do so by a deed ; but a deed was not com- petent to complete the transfer, that is, to give an absolute title, without delivery ; and, consequently, the title was im- perfect ; and being imperfect and he remaining in possession, it has been held, that the property shall be considered as re- maining in possession of the trader, with the consent of ithe true owner, that is, the mortgagee. If there be a mortgage of household estates, where the possession, according to the nature of the 'transaction, remains with the mortgagor, the law does not apply ; but if there be a sale, the possession remaining with the trader, the law would apply. Now, I think, if we look at all these cases, we shall perceive that the law (which in certain cases is a Severe law) must always be construed by this criterion. Was the possession that of a person not the owner with the consent of the true owner ? If it was the case, it is within the meaning of the statute. Now 1 Edwards v. Harben, 2 Term Rep. 587 ; Collins v. Forbes, 3 Id. 316 ; Jarman r. Woolloton, Id. 618 ; Manton v. Moore, 1 Id. 6T , Gordon v. East India, Co., Id. 228. JOY V. CAMPBELL. 613 here, from the death of William, the property *was p^. , , in that condition that it was perfectly competent .to ^ Thomas to acknowledge that he was trustee ; he did so ac- knowledge ; and his possession was according to the right of property, qualified by the right of others. That credit is given on the property is a circumstance which might, belong to a variety of other cases not within th^ statute. In MarshaTs Case, for instance, the creditor who had the plate could not know that it was settled on the marriage ; but possession was according to the ownership ; he was the rightful owner, and therefore the rule did not extend to that case. Here, for four years after the death of William, Thomas treated this as the estate of William : he held it indeed in his own possession, but that possession wg-s according to the ownership, and therefore it shall not give a right to the assignees which otherwise would not be in them. I therefore think, with respect to this property, that the right is with the creditors and legatees. And here I would observe that the eSFect of this law is not a forfeiture of the property. In Bryson v. Wylie, Bryson was a creditor of the bankrupt for so much, and his taking that species of security did not avoid his demand for the. debt. If a man were to purchase goods and pay for them, and permitted them to remain in the hands of the seller, who became bankrupt, he would be a creditor to the amount of the money he paid for the purchase. As to that part of the case, therefore, there is no difficulty in saying that this money must be accounted for : I do not touch on the case of John Brown, nor on what would have been done if William had filed a bill in his lifetime. I remember a case where a person who was executor to a smuggler, on being called on to account for the estate of the testator, endeavored to avoid a considerable part of the account, by saying that they were smuggling transactions, on which the Courts would not allow any action to be main- 614 JOY V. CAMPBELL. tained. The answer was, all that died with the smuggler ; he could not have sued himself; but his executor shall not " set up that as a defence against his creditors and legatees. May 12, 1804. Lord Chancellor Redij^dalb.— I have stated my opinion with respect to the greater part of this case. .... 1 have since that *time thought more and more on the. siA- -l ject, and have looked into the Act of Parliament ; and it is impossible to say, within the words of the act, that under the circumstances of the case, these interests were chattels in possession of the bankrupt with the consent of the true owner : with respect to them he was the true owner, subject to the iaterest which the persons who claimed under W. Brown had. Therefore I must consider this ques- tion as I did before, clearly with the plaintiffs. Mace V. Cadell, Lingham v. Biggs, and Joy v. Campbell, are printed, together, because they are always referred to as the leading . cases upon the doctrine of reputed ownership : Whitfield v. Brand, 16 M. & W. 286, 288. This doctrine derives its origin from the 10th and 11th sections of 21 Jac. I. c. 19, with some alterations, incorporated in 6 Geo. IV. c. 16, s. 72, which has since been repealed, and, in effect, re-enacted by the 125th section of 12th and 13th Vict. c. 106. That section is as follows: — " That if any bankrupt, at the time he becomes bankrupt, shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition, any goods or chattels whereof he was^reputed owner, or whereof he had taken upon him the sale, alteration or disposition as owner, the Court shall have power to order the same to be sold and disposed of for the benefit of the cred- itors under the bankruptcy. Provided that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mortgage or assignment, duly registered according to the provisions of an Act of Parliament, holden in the JOY V. CAMPBELL. 615 eighth and ninth years of the reign of her Majesty, intituled, 'An Act for the Registering of British vessels,' or any of the acts therein mentioned." On comparing this section with the 11th section of 21 Jac. I. c. 19, it will be found to agree with it substantially, except that following 6 Geo. IV. c. 16, s. 72, for the words "possession, order, ancZ disposition," it substitutes "possession, order, or disposition," and for the words "whereof they shall be reputed owners, and take upon them the sale," etc., it substitutes the words "whereof he was reputed owner, or whereof he had taken upon him the sale," etc. The clause of the Act of 1849 which has been before set out, differs from the corresponding clauses in 21 Jac. I. c. 19, and 6 Geo. IV. c. 16, s. 72, inasmuch as instead of the provision in the two last-mentioned acts as to| goods and chattels in the reputed ownership of the bankrupt, that "the Commissioners shall have power to sell and dispose of the same for the *benefit of the r^^cfj creditors under the commission:" the Act of 1849, con- tains a provision that "the Court shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy." The proviso as to shipping in the new act, following that in 6 Geo. IV. c. 16, s. 72, is not to be found in the statute of James I., and now by 17 & 18 Vict. c. 104, s. 72, "No registered mortgage of any ship, or of any share .therein, shall be affected by any act of bankruptcy committed by the mortgagor after the date of the record of such mortgage, notwithstanding such mortgagor at the time of his becoming bankrupt may have in his possession and disposition and be reputed owner of such ship or share thereof; and such mortgage shall be preferred to any right, claim, or interest in such ship, or any share thereof, which may belong to the assignees of such bankrupt." See also Boyson v. Gibson, 4 0. B. 121 (56 E. C. L. R.) ; Campbell v. Thompson, 2 Hare 140, 143. "A luminous exposition by Lord Redesdale of the corresponding Irish Act, 11 & 12 Geo. III. c. 8, s. 9," observes Parke, B., will be found in Joy v. Campbell, 1 Sch. & Lef. 336; Lord Redesdale there says, " That clause refers to chattels in the possession of the bankrupt, 'in his order and disposition, with consent of the true owner.' That means where ' the possession, order, and disposition ' is in a person who is not the owner, to whom they do not properly belong, and who 616 JOY V. CAMPBELL. ought not to have them, but whom the owner permits unconsoien- tiously as the- act supposes, to have such order and disposition. The object was to prevent deceit hy a trader from his visible pos- session of property to which he was not entitled; but in the con- struction of the act, the nature of the possession has always been considered, and the words have been construed to mean possession of the goods of another with the consent of the true owner:" Whitfield V. Brand, 16 M. & W. 286 ; and see Belcher v. Bellamy, 2 Bxch. 309. Somewhat similar provisions have been made in favor of the as- signees of persons taking the benefit of either of the acts for the relief of insolvent debtors (1 & 2 Vict. c. 110, ss. 37, 57 ; and see 5 & 6 Vict. c. 116, s. 1; 7.& 8 Vict. c. 96, s. 17), since repealed by 24 & 25 Vict. c. 184; see also Macrae's Prac. of Insolvency, p. 429. It may be here mentioned that the Bills of Sale Act, 17 & 18 Vict. c. 36, requiring the registration of bills of sale of personal chattels, does not give such bills of sale as are duly registered under it any greater validity as against the assignees in bankruptcy or insolvency than bills of sale had previous to the passing of the act, in cases where the goods and chattels were left in the possession of the grantor. See Stansfield v. Cubitt, 2 De G. & J. 222. There a bill of sale was executed of goods which remained in the possesr sion of the bankrupt at the time of his bankruptcy. The bill of sale was *duly registered. It was contended that chattels ■J assigned by a registered bill of sale were not liable to the doctrine of reputed ownership. That this was plain on the scope of the act (17 & 18 Vict. c. 36), which says, that if the bill of sale is not registered, it shall be void as against assignees in bankruptcy, and that this would be unmeaning and unnecessary unless a regis- tered bill of sale took goods out of the doctrine of reputed owner- ship. That the intention that it should do so was reasonable, as the registration of a bill of sale gave it a notoriety which excluded ap- parent ownership in the grantor. Lord Justice Turner, however, said, "I do not think that the intention of the Legislature in pass- iiig 17 & 18 Vict. c. 36, was to alter the law as to reputed owner- ship. The act does not say, that registration shall give any new effect to a bill of sale; and in the enactment as to the effect of omitting to register it, various persons, with some of whom the JOY V. CAMPBELL. 617 doctrine of reputed ownership has nothing to do, are classed to- gether." . See also Badger v. Shaw, 2 E. & E. 472 ^105 E. C. L. R.); Gough V. Everard, 2 Hurlst. & C. 1; Re Daniels, Ex parte Ashby, 25 L. T. 188 ; Re Arthur O'Connor, 27 L. T. 27. In examining this subject it is proposed to consider, — 1st. "What property comes within the meaning of the reputed ownership clause. 2. What will be considered as the "possession, order, or disposition of a bankrupt, as reputed owner," within the meaning of the act. 3. What is meant by the "consent and permission of the true owner." 4. As to the time at which the goods and chattels must be in the possession, etc., of the bankrupt to come within the clause. 5. It is next proposed to notice certain exceptions from the opera- tion of the reputed ownership clause. 6. Next, the power given to the Court over goods and chattels coming within the -operation of such clause. 7. And lastly, whether the clause applies to deeds registered under sec. 192 of the Bankruptcy Act, 1861. 1. What Property comes within the Meaning of the reputed Ownership Clause. — This section of the Bankrupt Act now under consideration operates only upon property coming within the descrip- tion of "goods and chattels." Thus furniture, as in the principal case of Lingham v. Biggs {ante, p. 439), utensils of trade not fixed to the freehold (Jiingard v. Messiter, 1 B. & C. 308 (8 E. C. L. R.) ; Bryson v. Wylie, 1 :^s. & P. 83 n. ; Ex parte Dale, 1 Buck 365 ; Whitmore v. Empson, 23 Beav. 313 ; Shuttleworth v. Hernaman, 1 De G. & J. 322 ; Waterfall v. Penistone, 6 E. & B. 876 (88 E. C. L. R.)) ; unless perhaps such as are usually let to traders, as the cus- tom, in such cases, may rebut the presumption of ownership arising from the possession and apparent order and disposition of them (Horn V. Baker, 9 East 215) ; ships (Stephens v. Sole, 1 Ves. 352, cited ; Hay v. Fairbairn, 2 B. & Aid. 193 ; Monkhouse v. Hay, 2 B. & B. 120 (6 E. C. L. R.)), *unless in the case of a mort- gage they are duly registered (ante, p. 456) ; freight of ships L (Leslie v. Guthrie, 1 Ring. N. C. 697 (27 E. C. L. R.); Douglas v. Russell, 4 Sim. 524); choses in action, such as debts (Ryall v. Rowles, 1 Ves. 348) ; bills of exchange (Hornblower v. Proud, 2 B. & Aid. 827) ; promissory notes (Belcher v. Campbell, 8 Q. B. 1 (55 E. C. L. R.)); stock (Ex parte Richardson, Buck 480; Bartlett v. Bartlett, 1 De G. & J. 127) ; policies of assurance (Gale v. Lewis, 618 JOY V. CAMPBELL. 9 Q. B. 730 (58 E. C. L. E.) ; Thompson v. Speirs, 13 Sim. 469 ; Ex parte Bromley, Id. 476; Ex parte Styan, 2 M., D. & D. 219; Ee Webb's Policy, 15 W. E.(V.-C. M.) 529; Edwards v. Martin, 1 Law Eep. Eq. 121); annuities (Ex parte Smyth, 3 M., D. & De Gex*, 687; Waldron v. Sloper, 1 Drew. 198); the benefit of an admiralty contract (North v. Gurney, 1 J. & H. 609); come within the meaning of the term "goods and chattels " in the reputed owner- ship clause. So likewise do shares in public companies, where they are either of themselves personal estate, as shares in an assurance company (Nelson v. The London Assurance Company, 2 S. & S. 292 ; Ex parte Nutting, 2 M., D. & D. 302), in a newspaper (Longman v. Tripp, 2 Bos. & Pul. N. E. 67; Ex parte Foss, 2 De G. & J. 230), or shares in-public companies, as railway, gas, canal, or waterworks companies, which although connected with land have been declared to be .personal estate, either by act of parliament or in the deed constituting the company (see Ex parte Harrison, 3 M. & Ayrt. 506 ; Ex parte Vallance, Id. 224 ; Ex parte The Lancaster Canal Company, 1 Mont. & Bligh. 94; 1 D. & C. 411; Ex part^ Law- rence, 1 De G. 269; Ee Sketchley, 1 De G. & J. 168); and it seems that shares in a commercial company possessing lands in a foreign country for the purposes of trade, are not to be considered as real property : Ex parte Eichardson, 3 Deac. 496.^ It was at one time supposed that a bankrupt's reversionary in- terest in a chose in action not falling into possession until after his bankruptcy, was exempt from the operation of the clause as to order and disppsition (In re Eawbone's Bequest, 3 K. & J. 300 ; Ex parte Hulme, 3 Sm. & G. 325), but such interests are now held' to be- within it : Bartlett v. Bartlett, 1 De G. & J. 127, overruling the decision of Sir J. Stuart, V.-C, reported 8 Sm. & G. 533 ; In re Eawbone's Trust, 3 K. & J. 476. See also In re Vickress's Trust, 7 W. E. 542 (V.-C. K.); but see Grainge v. Warner, 13 W. E. (V.-O. S.) 833. Eeal property, however (Eyall?;. Eolle, 1 Atk. 165; 7 Term Eep. 234; Ex parte Taylor, Mont. 240), chattel interests in real property (Stephens v. Sole, cited 1 Ves. 352; Eoe v. Galliers, 2 Term Eep. 188), debts secured on mortgages of real estate (Jones v. Gibbons, 9 Ves. 407), or shares in a public company whose funds arise wholly from real estate (Ex parte Vauxhall Bridge Company, 1 G. & J. JOT V. CAMPBELL. 619 101 ; Ex parte Barnett, 1 De Gex 194), do *not come within the meaning of the 125th section. L ^ Moneys, however, to arise from the sale of real estate (Lee v. Hewlett, 2 K. & J. 531 ; Foster v. Cockerel!, 3 C. & F. 456), or portions to be raised by trustees out of real estate by sale, mort- gage, or otherwise (Re Hughes' Trust, 2 Hem. & Mill. 89), not being considered as of the nature of realty, come within the mean- ing of the 125th section. Fixtures affixed to the freehold do not come within the reputed ownership clause, and it is immaterial whether they are such as would be removable as between landlord and tenant or not. See the leading case of Horn v. Baker, 9 East 215 ; 2 Smith's L. Cas. 161, 4th ed. ; Whitmore v. Empson, 23 Beav. 313. In Boydell v. M'Michael, 1 C, M. & R. 177, a lessee of a house for a term of years purchased the fixtures from the lessors at a valuation ; and after having assigned the term and the fixtures by way of mortgage, he continued in possession and became bankrupt. It was held by the Court of Exchequer that the fixtures were not "goods and chattels" within the order and disposition of the bankrupt, and did not pass to his assignees. " The real nature," said Parke, B., "of the tenant's interest in this case is, that he has a right to remove the fixtures during the term. That interest has been held sufficient to enable the sheriff to seize them under a fi. fa. ; but Horn v. Baker decides that they are not goods and chattels within the mean- ing of the clause as to the order and disposition of the bankrupt. The reason is this, that with regard to real property, the possession is considered as nothing, but the title only is looked to. In this case it' is clear that the mortgage took the interest in the realty and everything affixed thereto, and the tenant's right to remove the fix- tures during the term." See also Clark v. Crownshaw, 3 B. & Ad. 804 (23 E. C. L. R.); Coombs v. Beaumont, 5 B. & Ad. 72 (27 E. C. L. R.); Hallan v. Runder, 1 C, M. & R. 266: Minshall v. Lloyd, 2 M. & W. 459; Hitchman v. Walton, 4 M. & W. 414; Steward v. Lombe, 1 B. & B. 511 (5 E. C. L. R.); De Tastet v. Walker, 1 Buck 153; Ruffordw. Bishop, 5 Russ. 346, cited 4 Sim. 336; Hub- bard V. Bagshaw, 4 Sim. 326; Storer v. Hunter, 3 B. & C. 368 (10 E. C. L. R.); Ex parte Watkins, 1 Deac. 296; Ex parte Broad- wood, 1 M., D. & D. 631; Ex parte Reynal, 2 M., D. & D. 443; Ex parte Price, Id, 518; Ex parte Bentley, Id. 591; Ex parte 620 JOY V. CAMPBELL. Heathcoatei, Id. 711; Fletcher v. Manning, 1 C. & K., N. P. 350 (47 E. C. L. R.); Load v. Green, 15 M. & W. 216; Ex parte Bar- clay, 5 De G., M. & G. 403; Freshney v. Carrick, 1 Hurlst. & N. 653; In re M'Kibbin, 4 Ir. Ch. Rep. 520; Thompson v. Pettitt, 10 Q. B. 101 (59 E. C. L. R.); Cullwick v. Swindell, 3 Law Rep, Eq. 249. The case of Trappes v. Barter, 2 C. & M. 158 (41 E. C. L. R.) ; 3 Tyrw. 603, although some of the law there laid down is at least doubtful (see Minshall v. Lloyd, 2 M. & W. 456), is correct, because as the fixtures were held not to pass to the mortgagee, the *4601 *^ssignees of the mortgagor were entitled to them, whether they were personal estate or not. Those cases in which a distinction has been taken between fix- ttires annexed by the owner of the freehold to his estate, and fixtures put up by a tenant, according to which the letter, at any rate in the case of trade fixtures, have been held not to come within the reputed ownership clause (see Ex parte Lloyd, 1 M. & A. 494, 506 ; Ex parte Wilson, 2 M. & A. 61, 70; Ex parte Belcher, Id. 162; Ex parte King, 1 M., D. & D. 119 ; Ex parte Austin, 1 Deac. & C. 208), are inconsistent with the current of authorities, and are not to be relied upon. It may here be observed that in some of the cases where it has been held that fixtures were not to be considered to come within the doctrine of reputed ownership, the judges seem to rely partially, at any rate, upon the custom in the neighborhood of demising fixtures together with the premises (see Rufibrd v. Bishop, 5 Russ. 346 ; 4 Sim. 336; Storer v. Hunter, 3 B. & C. 368 (10 E. C. L. R.); Wat- son V. Peache, 1 Bing. N. C. 327 (27 E. 0. L. R.); MuUett v. Green, 8 C. & P. 382 (34 E. C. L. R.); Trappes v. Harter, 2 C. & M. 153; Hubbard v. Bagshaw, 4 Sim. 326); so that mere pos- session of them by a bankrupt would not necessarily lead people to believe that he had the property in them, so as to obtain a false credit by the fact of possession; the true" principle, however, upon which the decisions rest is that mentioned by Parke, B., in Boydell V. M'Michael {ante, p. 459), viz. that with regard to realty and everything affixed thereto, the possession is considered as nothing, but the title only is looked to. Heirlooms are not within the reputed ownership clause : Earl of Shaftesbury v. Russell, 1 B. & G. 666 (7 E. 0. L. R.). JOT V. CAMPBELL. 621 2, WTiat will be considered as '■^Possession, Order, or Disposi- tion" of a Bankrupt as "reputed Owner." — Confining our attention at first to the question, when goods and chattels, passing by manual delivery, such as utensils or articles of trade, or furniture, will be considered as being in the possession, order, or disposition of a bankrupt as reputed owner, it appears to be clear, as is laid down in the principal case of Lingham v. Biggs, that the cases upon this subject may be divided into two classes. The first, where the bank- rupt was originally the owner of the goods and chattels left in his order or disposition ; the second, where he was not. The evidence required to establish reputed ownership in each of these cases is difi'erent. In the former case, when it is once proved that the bankrupt has been the owner, and has continued in pos- session until the time of the act of bankruptcy, the presumption is, that he then continued in possession in the character of owner, and therefore proof of those facts is primd facie evidence that the bankrupt . is both reputed and real owner. In the latter case, the *mere possession of goods and chattels may not be suflScient ri^iAo-i to show that the bankrupt was the reputed owner of them, and then it may be necessary for the assignees to establish that fact by other circumstances : Lingard v. Messiter, 1 B. & C. 312 (8 E, C. L. R.). We may illustrate the first class of cases, viz. those where the bankrupt was original owner of the goods left in his pos- session, by reference to the authorities, where he has sold (Knowles V. Horsfall, 5 B. & Aid. 134 (7 E. C. L. R.) or mortgaged (Ex parte Heslop, 1 De G., M. & Gr. 477 ; Freshney v. Carrick, 1 Hurlst. & N. 653 ; Ex parte Stoner, 53 L. T. 244) the goods, for he will be presumed to have continued in possession as owner, if it be not shown by the purchaser or mortgagee, as the case may be, not only that there was a change of ownership, but that that change of ownership had become notorious to the world (1 B. & C. 813 (8 E. C. L. R.) ; Muller v. M. & Selw. 835), unless perhaps in those cases where, from the nature of the business carried on by the per- son with whom goods are left, it is not to be inferred that all the goods in his possession belong to him : Hamilton v. Bell, 10 Exch. 545. The fact of the initials of the purchaser having been written upon goods has been held not to be suflScient evidence of the notoriety of the change of property. Thus in Knowles v, Horsfall, 5 B, & Aid. 622 JOY V. CAMPBELL. 134 (7 E. C. L. E.), Dixon, a spirit-merchant, sold to the plaintiff, a wine-mei'chant, several casks of brandy, some of which at the time of the sale were in Dixon's own vaufe, and others in the vaults of a regular warehouse-keeper at Liverpool. At the time of the sale, it was agreed that the brandies should remain in the several ware- houses in which they were then deposited, rent free, until it suited the convenience of the plaintiff to remove them. Immediately after the sale, the plaintiff caused the letter K. to be marked in chalk on each of the casks by his warehouse-man. It was notorious in the wine trade, that these sales had been made to the plaintiff, but no notice of the sale had been given to the warehouse-keeper with whom some of the casks had been' deposited: Dixon having become bank- rupt while the brandies remained where they were originally depos- ited, it was held by the Court of King's Bench that the whole of them passed to his assignees. "It appears," said Abbott, C. J., "that some of the casks remained, in the vaults of Dixon, the original seller, and that the others were in the vaults of a ware- housekeeper. As to the latter parcel, if the plaintiff had given notice of the sale to the warehouse-keeper, the latter would not then have been justified in delivering them to the order of Dixon, who had placed them there. It is clear, therefore, that that parcel of goods remained after the sale subject to the order and disposition of the bankrupt. With respect to the brandies which remained in his own vaults, the case is much stronger, because as to *them J Dixon united in himself the character of warehouse-keeper and that of merchant or dealer in the commodity. Any person who went for the purpose of purchasing these brandies could not know tha^ Dixon did not continue the owner. He had the corporeal power over them. The letter K, marked on the casks, might speak a language to a certain class of persons intelligible ; but to others, who might be induced to become the creditors of Dixon, in the belief that the brandies belonged to him, it would be wholly unintel- ligible. Ifany person of the latter description had purchased them of the bankrupt, I have no doubt that he would have a good title to them as against the plaintiff ; for the real owner ought not to have left the goods, after the purchase, in the hands of Dixon, and suf- fered him to treat them as his own." See also Lingard v. Messiter, 1 B. & C. 308 (8 E. C. L. R.) ; Leake v. Loveday, 4 M. & G. 972 (43 E. C. L. R.) ; 2 Dowl. P. C. N. S. 624. JOY V. CAMPBELL. 623 So the mere handing over to a mortgagee of the key of a house of the mortgagor's in which furniture, the subject-matter of the mortgage, was kept, has been held not to be suflBcient to take the furniture out of the order and disposition of the mortgagor : Ex parte Staner, 33 L. T. 244. In the case, however, of Ex parte Marrable, 1 G. & J. 402, where wine sold by the bankrupt, remained in his cellars, but was set apart in a particular bin, and marked with the. pur chaser's' seal and entered in the bankrupt's books as belonging to the purchaser, it was held by Sir J. Leach, V.-C, to belorrg to the purchaser, and not to be in the order and disposition of the bankrupt. And in the recent case of Hamilton v. Bell, 10 Exch. 552,. Alderson, B., said that Knowles v. Horsfall "merely sets forth a particular state of facts from which the Court were to draw their own conclusion, and for that reason I regret that I reported it." See also Ex parte Dover, 2 M., D. & De G. 259. In Shrubsole v. Sussams, 16 C. B. N. S. 452 (111 E. C. L. R.), Tomlin, an inn-keeper at Sheerness, being indebted to the defendant, under what the jury thought suflBcient pressure, on the 30th of May, 1868, employed his own attorney to prepare a bill of sale of all his eflfects in favor of the defendant, to secure an existing debt and a small further advance (the amount being about a fair equivalent for the value of the goods) and sent it to the defendant. On the 10th of July thg; defendant sent a man to Tomlin's premises to paint out Tomlin's name, and on the 13th went down to Sheerness and took possession, leaving Tomlin there to manage the concern on his behalf. On the 15th Tomlin filed a'petition in bankruptcy, and on the 16th was duly adjudicated bankrupt. In an action by the assignees to recover the value of, the goods thus conveyed, the jury having found that the transaction was bond fide, and that possession was really and notoriously taken by *the defendant prior to r+^gg the bankruptcy, it was held by the Court of Common Pleas that the goods were not in the order and disposition of Tomlin at the time of his bankruptcy. The fact that goods have been seized under an execution, and the sheriflf's officer having been in possession, is not sufficient to show that the change of property has become notorious to the world ; it is at most only evidence- of the notoriety of the goods having been taken in execution ; for when the owner continues in possession, as. 624 JOY V. CAMPBELL. for instance, under a demise from the execution creditor, it may well be supposed that the execution has been withdrawn in consequence of the debt having been paid; and the very circumstance of the bankrupt having afterwards continued in possession of the goods, might well induce others to suppose that such was the fact, and that he still continued owner : Lingard v. Messiter, 1 B, & C. 308, 314 (8 B. C. L. R.)- It seems, however, that although the bankrupt was the original owner of the goods, the mere possession of them will not be suffi- cient in itself to show that he is the reputed owner, if they were left with him under circumstances not calculated to lead the world to believe that he was the true owner. See Hamilton v. Bell, 10 Bxch. 545. There the plaintiflf purchased some clocks of a London tradesman, who kept a shop in which were exposed for sale clocks and watches. A portion of the tradesman's business Was to clean and repair clocks, and such as were sent to 'him for that purpose stood amongst those in the shop which were for sale. The plaintifif left the clocks which he had purchased with the tradesman, with di- rections that they were to be sent to him when they had been cleaned and put in order. The tradesman some time afterwards be- came bankrupt, the plaintiff's clocks still remaining in his shop.. In an action by the plaintiff against the assignees for taking these clocks, it was held, under the circumstances, there was no evidence either that the bankrupt was the reputed-.owner of the goods, or that they we're in his possession, order, or disposition, within the meaning of the 125th section of the Bankrupt Law Consolidation Act ; and consequently that the goods did not pass to the assignees. "The true exposition of the 125th section," said Alderson, B., "is this. The goods to be sold for the benefit of the creditors are those of which the bankrupt has become the reputed owner by the consent and permission of the true owner, who has made him so by placing the goods in the order and disposition of the bankrupt, under such circumstances as he must reasonably know will lead the world to treat the bankrupt as the true owner. Thus, if property be sent to a shop where goods are sold as the property of the shopkeeper, that property is pliaced in such a situation as, in. the eyes of the *4641 ^°^^^' would fairly lead to the inference that it ^belongs to the possessor ; and such a case falls within the meaning and spirit of this clause of the statute ; and such goods would go to the JOY V. CAMPBELL. 625 assignees, to be disposed of for the benefit of the creditors. But if, as here, the goods are left in a shop -where it is notorious that goods are placed for other purposes than sale, namely, for the con- venience of the owners, the conclusion cannot be reasonably drawn that the goods are the property of the shopkeeper." So, a carriage left by a purchaser with the builders, first for alterations and after- wards for sale (Carruthers v. Payne, 5 Bing. 270 (15 E. C. L. R.)), or even for his own convenience, because he happened to be abroad when it was ready (Bartrum v. Payne, 3 C. & P. 175 (14 E. C. L. R.)), a ship left in the yard of a builder for completion (Swainston v.. Clay, 4 Giff. 187 ; Holderness v. Rankin, 28 Beav. 180 ; 2 De G., F. & J. 298) ; and books left with a publisher in the course of trade (Ex parte Greenwood, 6 L. T. N. S. 558 ; Whitfield v. Brand, 16 M. & W. 282), have been held not to come within the reputed ownership clause. And in Priestley v. Pratt, 2 Law Rep. Exch. 101, it was held that lambs and pigs, in Lincolnshire, left by the vendee for his con- venience in the hands of the vendor, were not in his order and dis- position, as their being so left was in accordance with the notorious usage and custom of the country. In Ex parte Elmer, 13 W. R. (Bktcy.) 476, the decision was the same, with regard to a horse purchased from a firm of brewers and general contractors, and at the same time let out to hire to them by the purchaser at a weekly sum. See also Re Terry, 7 L. T. N. S.. 370 ; Prismall i\ Lovegrove, 10 W. R. Exch. 527. The possession of a servant or manager will be considered as that of his master or employer (Jackson v. Irwin, 2 Campb. 48 ; Tous* saint V. Hartop, Holt 335 ; Hoggard v. Mackenzie, 25 Beav. 493), the possession of a person to whom goods have been lent, as that of the lender (Hornsby v. Miller, 1 E. & E. 192 (102 E. C. L..R.)),, and the possession of a carrier, as that of the person who employs him (Hervey v. Liddiard, 1 Stark. 123 (2 E. C. L. R.)). And where a person whose possession of goods and chattels i» considered as that of a bankrupt, and they are held to be within his- order and disposition, it has been held that such person cannot en- force any lien against such goods and chattels. Thus in Hoggard V. Mackenzie, 25 Beav. 493, a Scotch firm had a branch in London, which was wholly conducted by an agent and manager at a sal^ry^ but in their name. By contract he was to have a lien on goods 40 626 JOY V. CAMPBELL. consigned to him for bills accepted by bim for the jfirm. The firm became bankrupt in Scotland. It was held by Sir John Romilly, M. R., that the goods under the manager's control were at the time within the "order and disposition" of the bankrupts, and passed to their assignees unaffected by his lien. *A question may arise as to what is the effect of a joint -J possession of the servants of the ba^nkrupt, and of the owner of the goods, with respect to reputed ownership. It was discussed in Ex parte Marjoribanks, 1 De Gex 466, where the chief judge thought that the true owners, the petitioners, were entitled to. try the question in an action, the terms of which w-ere settled, but the matter was afterwards compromised. The possession of the pawnee will not be considered as that of the pawnor. Thus in Greening v. Clark, 4 B. & C. 316 (10 B. 0. L. R), where the plaintiff bought from one Phillipson goods in the East India Company's warehouses, and left the warrants in Phillip- son's hands, who pledged them, and afterwards became bankrupt whilst the warrants were in the possession of the pawnee, it was held by the Court of King's Bench that the goods did not pass to the assignees. It was observed by the Court, that the effect of the statute was to render the property of one person, under certain cir- cumstances, available as a fund for the payment of the debts of another ; that such a statute, although in some cases very benefi- cial, should not be applied to any that did not come within the words of it ; . . . that the goods in question certainly were not in the possession of Phillipson at the time of his bankruptcy, nor could he have obtained the possession without repaying the pawnee the money that he had advanced. The case then did not fall within the words of the statute ; and as without the statute there was no defence to the action, the verdict was properly found for the plain- tiff, and ought not to be disturbed. See also Ex parte Taylor, Mont. 240. Goods in the custody of the law, Although in the house of a bank- rupt, "will not be considered as being in his possession. See Sacker V. Chidley, 13 W. R. Exch. 690, where it was held that goods of a third party which had been seized under a distress for rent in the house of a man who afterwards committed an act of bankruptcy, upon which .he was adjudicated bankrupt, were not in his " order and disposition," Pollock, C. B., observing that "in a case where JOY V. CAMPBELL. 627 the goods of a third person, in the possession of a bankrupt, had been seized by the officers of excise under a claim for duty, it was held that they did not pass to the assignees of the ban'krupt." See also Ex parte Foss, 2 De G. & J. 230. There Baldwin was the owner of the type and plant used in the publication of certain news- papers. He mortgaged the type and plant to Foss. Afterwards the sheriff entered under an execution issued by a creditor of Bald- win, and though possession was demanded by Foss, remained in possession till Baldwin had become bankrupt. It was held by the Lords Justices of the Court of Appeal in Chancery, reversing the decision of Mr. Commissioner Evans, that the type and plant were not within the order and disposition *of the bankrupt, at the r^^j^fj time of his bankruptcy, with the consent of the true owner. Lord Justice Turner, after distinguishing the case from Barrow v. Bell, 5 E. & B. 540 (85 B. C. L. R.), observes, "Now how does this case stand? The sheriff takes possession of the plant. One of the mortgagees gives him notice to withdraw. There is no pre- tence for saying that the possession afterwards was in any sense the possession of the bankrupt, or that the bankrupt continued in pos- session after the execution by the sheriff, in the same mode as he had been in possession prior to the execution levied. This state of circumstances, I think, brings the case distinctly within the doc- trine of Fletcher v. Manning, 12 M. & W. 571, which is in conform- ity with a long train of previous decisions to be found in Jones v. Dwyer, 15 East 21, and Arbouin v. WilHatns, R. & M. 72 (21 E. C. L. R.), and in Ex parte Smith, Buck 149, and Robinson v. M'Donnell, 2 B. & Aid. 134. The case seems to me, therefore, to be clearly in favor of the mortgagees as to the plant." A tortious seizure, however, by a sheriff will not take goods ou^' of the possession of the reputed owner. Thus in Barrow v. Be.i. 5 E. & B. 540 (85 E. C. L. R.), Eyre, a trader, had in his house goods, not his own property, in his order and disposition with the consent of the true owner. The sheriff entered the house under a fi. fa. against the trader, and made a levy. A man was left in pos- session in the house, but no change was made in the apparent possession of the goods by the trader, until after the filing of a petition for adjudication of bankruptcy against him, under which he was declared a bankrupt. . It was hel^ by the Court of Queen's Bench that the act of the sheriff did not withdraw the goods from 628 JOY V. CAMPBELL. the order and disposition of the bankrupt, and consequently that the Court of Bankruptcy might order them to be sold by tlje as- signees, asagainst the true owner. "It is clear," said Lord Camp- bell, C. J., " that the sheriff in seizing those goods was a wrongdoer; for the writ authorized him to seize Byre's goods, not those of the plaintiff in Eyre's possession. The case is, therefore, I think, as if the sheriff had no writ at all, or the person seizing had been any other wrongdoer. It seems to me that what took place between Eyre and the sheriff is, as between the true owner and the as- signees, res inter alios, having no operation, and leaving their rights as if the sheriff had never entered. See also Jackson v. Irwin, 2 Campb. 48. It has been suggested that the doctrine of reputed ownership ap- plies only where the possession of the bankrupt is purely permissive, so that his ownership is merely apparent ; and that where he is in possession under an interest by virtue of which he is true, though only limited, owner, the doctrine in question has no application, and the assignees take no more than the limited interest vested in the bankrupt. Upon the principle just *stated, it has been sug- -' gested in a very useful work that where a person mortgages personal chattels by a deed so framed that he takes under it an in- terest in the chattels mortgaged for a term determinable upon his own default in payment, this limited interest saves him from being merely reputed owner; and by preventing his bankruptcy from passing anything more than the transient and defeasible interest vested in him, in effect, gives complete protection to the mortgagee: 4 David. Convey. 614 n., 4th ed.. by Davids. & Waley. This doc- trine is supposed to rest upon the cases of Fenn v. Bittleston, 7 Exch. 152; Brierly v. Kendall, 21- L. J. Q. B. 161 ; and a.dictum of Lord Cranworth, in Ex parte Barclay, 5 De Gr., M. & G. 403. Although conveyancers may adopt, as a measure of precaution, the form of mortgage thus suggested, it is nevertheless now settled, that even in such a case the mortgagor in possession would be deemed the reputed owner, " as the law will not allow this provision of the Bankruptcy Act to be defeated by this sort of contrivance :" Spackman v. Miller, 12 C. B. N. S. 659, 678 (104 E. C. L. E.); and see Freshney w. Carrick, 1 Hurlst. & N. 663; Ex parte Staner 33 L. T. 244 ; see also Bryson v. Wylie, 1 Bos. & Pul. 83 n. ; Lin- ard V. Messiter, 1 B. & C. 308 (8 E. C. L. R.); Coombs v. Beau- JOY V. CAMPBELL. 629 mont, 5 B. & Ad. 72 (27 E. C. L. R.); Reynolds v. Hall, 4 Hurlst. & N. 519; Hornsby v. Miller, 1 E. & E. 192 (102 E. 0. L. R.) And the possession of a portable chattel, as, for instance, that of a portable steam-engine by a person to whom the mortgagor in pos- session has let it out in the way of his trade, will be considered as that of the mortgagor: Hornsby v. Miller, 1 E. & E. 192 (102 E. 0. L. R.) With regard to the second class of cases, viz., those in which the bankrupt was not originally the owner of the goods and chattels in his possession, it has been well illustrated in the principal case of Lingham v. Biggs, by the case put of the furniture let with a ready- furnished house, and of horses let on job. In these and such like cases, possession is evidence of ownership, and if there be no evi- dence to oppose thereto, would create a reputation of ownership. This evidence, however, might be opposed, and so satisfactorily opposed, as to destroy that- reputation. Furniture let to hire with a house will not ordinarily be con- sidered as being in the reputed ownership of the hirer. "If," says Eyre, C. J., "a respectable tradesman, residing in his own house in London, takes a journey for two months to Brighton, or some other sea-port, and hires a ready-furnished house; all the world would say that he was the reputed owner of the furniture in the house in London, and not the reputed owner of that in the house at Brighton. So, as it is notorious that people do not always drive their own coaches and horses, possession in such a case is only equivocalj and too equivocal to create a reputation of ownership ; it would therefore be necessary to go into *other evidence to r-^.f.Q determine of what character the possession was :" ante, p. L 390. See Gurr v. Rutton, Holt N. P. 326 (3 E. C. L. R.). Where, however, furniture has been hired to put into a house, the result may be different, unless a general custom to let furniture to hire at a particular place, or to a particular class of persons, can be proved. See also Mullett v. Green, 8 C. & P. 382 (34 E. C L. R.); Re Hams, 10 Ir. Ch. 100; Re Head, Ex parte Cobbold, 12 W. R. 215; Ex parte Newberry, 10 L. T. N. S. 661. There is moreover a class of tradesmen, who, although neither brokers nor agents, nevertheless are'in possession of property the greatest portion of which belongs to other people ; for instance, sil- versmiths and jewellers, who have in their possession for years. 630 JOY V. CAMPBELL? family plate and jewels of great value ; and such articles, ■whether exhibited or not, in the case of the bankruptcy of the tradesman, ought not to pass to his assignees : per Pollock, C. B., in Hamilton V. Bell, 10 Exch. 550. Upon the same principle, where utensils necessary for carrying on a trade are hired or leased to a trader, they will prinid facie be considered as being in his reputed ownership. Thus the vats and utensils of a brewery (Horn v. Baker, 9 East 215), and the imple- ments of a mill and iron forge (Clark v. Crownshaw, 3 B. & Ad. 804 (23 E. C. L. R.)), have been considered as being in the reputed ownership of the hirer or lessee. The usage however of certain trades to let out utensils of trade or machinery, and the notoriety of such a usage in the trade, may rebut the presumption of ownership which would otherwise arise from the possession. Thus, for instance, where it is the usage in Vi country for the owners of collieries to demise the machinery and other things used in the colliery (Storer v. Hunter, 3 B. & C. 376 (10 E. C. L. B,.); and see Thackthwaite «. Cock, 3 Taunt. 490)); for the owners of furniture to let it out to hotel-keepers (Mullett v. Green, 8 C. & P. 382 (34 E. C. L. R.)); for the owners of barges to hire them out to coal-merchants (Watson v. Peache, 1 Bing. N. C. 327 (27 E. C. L. R.)) ; in these and such like cases, the usage may rebut the presumption of ownership. So it is stated that in the counties of Nottingham and Leicester, it was extremely common for the working hosiers to have on hire the possession of stocking-frames — valuable machines, which they were unable to purchase, and which therefore, coming within the I'eason of job carriages, job horses, and the like, would not be considered as being in the reputed ownership of the hirer. See Thackthwaite v. Cock, 3 Taunt. 490. It is suflSeient if the custom be shown to be so general as that all should know it who had dealings or were likely to have dealings with the bankrupt. See_ Watson v. Peache, 1 Bing. N. C. 327 (27 E. C. L. R.). There a coal-merchant at the time of his bankruptcy had in his possession barges which bore his own name and number, *4691 ^"^ ^^^^ registered *in his name under the Waterman's Act. These barges he had hired of the defendant. It was proved to be the custom for coal-merchants to hire barges, and to paint on them the name of the hirer. Upon a question whether the barges JOY V. CAMPBELL. 631 passed to the coal-merchant's assignees under his bankruptcy, it was held by the Court of Common Pleas that Tindal, C. J., before whom the cause had been tried, had properly left it to the jury to deter- mine whether the custom to hire barges on which the hirer had painted his own name and number, was generally notorious in the coal trade, and that it was not necessary to direct them to inquire whether the custom was notorious to the world at large. " Whether," said Tindal, C. J., "the bankrupt be the reputed owner of the pro- perty or not, can only be known by looking to the acts of the trader, his contracts, and his dealings in his trade — in the world in which he moves. When the jury are satisfied that the usage relied on is notorious to all who are likely to have any dealings with the bankrupt, there is sufScient to warrant their verdict, and the question ■which they were directed to consider." See also Ex parte Wiggins, ^2 Deac. & Ch. 269; Newport v. Rollings, 3 C. & P. 223 (14 E. C. L. R.); Mullett v. Green, 8 C. & P. 382 (34 E. C. L. R.). The custom relied upon must however be clearly proved: Thack- thwaite v. Cock, 3 Taunt. 487, 491. If moreover a custom be one calculated to deceive the public, it will not have any effect. See Thackthwaite v. Cock, 3 Taunt. 487, where it was held, that a custom that purchasers of hops from hop-merchants should leave them in the merchant's warehouse for the purpose of resale, upon rent, undistinguished from the merchant's stock, was not such a cus- tom of trade as would prevent the hops from becoming the property of the merchant's assignees in case of his bankrupty, as being in his possession, order and disposition. See also Shaw v. Harvey, 1 Ad. & E. 920 (28 E. C. L. R.). A question sometimes arises where goods and chattels have for valuable consideration been vested in trustees upon trust for the separate use of a married woman, and such goods and chattels have been left in her possession in accordance with the terms of the in- strument creating the trust, whether upon the bankruptcy of her husband he will be the reputed owner of such goods and chattels. And it seems he will not be ^o considered, because the trustees, who are the true owners, by allowing the wife to be in possession of the goods and chattels do not thereby consent to their being in the pos- session, order, or disposition of her husband. See Simmons v. Bailey, 16 Mees. & W. 838. There household furniture, linen, and plate belonging to B. were assigned by him, by deed, in con- 632 JOY V. CAMPBELL. templation of his marriage, to the plaintifiFsj in trust after marriage, to stand possessed thereof during the joint lives of B. the settlor and his intended wife, for her sole and separate use independently *of B. The marriage took place, and B. afterwards became J bankrupt. The settled furniture and other articles were then in the house in which he resided with his wife. It was held by the Court of Exchequer that they were not at the time of his bankruptcy "in his order and disposition with the consent of the owners," and that the fact that the furniture, etc., not having been the wife's before the marriage was immaterial. For the furniture and other articles passed by the deed to the trustees justas if they had been the property of the- wife before the marriage, and the pos- session which followed the deed was right and consistent with its terms. See also Jarman v. WooUoton, 3 Term Rep. 618; Haselin- ton V. Gill, Id. 620 n. ; Darby v. Smith, 8 Id. 82; Quick v. Staines, 1 Bos. & Pul. 293; Ex parte Castle, 3 Deac. &'De G. 117; Ex parte Massey, 4 Deac. & Ch. 405 ; Gardner v. Howe, 5 Russ. 258 ; Tugman v. Hopkins, '4 M. & G. 389 (43 E. C. L. R.). With regard to choses in action, such as debts, and policies of as- surance, which are not capable of actual delivery, such a transfer must be made on a sale or mortgage as is considered equivalent to actual delivery of movables, so as to take them out of the order and disposition of the bankrupt. This is done by giving notice to the' debtor, or other person holding the property at the order or disposition of the bankrupt, of the assignment of the debt or other chose in action. The reason why notice is necessary is this, that if it were not given the assignor might by a subsequent assignment, to a party giving notice, transfer the property to him, and conse- sequently the laches of the person omitting to give notice acquire a false credit, by the debt or other chose in action remaining in his order or disposition : Jones v. Gibbons, 9 Ves. 410. Thus in Ex parte Monro, Buck 300, a bond debt was assigned and the bond delivered to the assignee, but as no notice of the assignment was given to the debtor, it was held by Sif, Thomas Plumer, V.-C-, that the debt remained in the order and disposition of the bankrupt. " I find," said his honor, " the practice of the commissioners has been conformable to the rule stated in Ryall v. RoUe, 1 Atk. 165 ; the absence of any decision to the contrary since the time of Lord Hardwicke shows that rule to have been acquiesced in, and I think JOY V. CAMPBELL. 633 rightly for the obligee, where notice is not given, may obtain pay- ment of the debt;. which is sufficient to leave it in his ordering and disposition within the meaning of the statute." Upon the same principle, where the owner of a chartered vessel assigns the freight to a person for valuable consideration, if such person neglects to give notice of the assignment to the charterers or their agent, previous to the bankruptcy of the owner, the freight will be held to be in the order and disposition of the bankrupt : Re The owners and Mortgagees of the ship "Pride of Wales," 15 W R. (V.-C. M.) 381. ♦Notice j;o the debtor or person liable to pay, of ah assign- |-^ ,_., ment of a chose in action is sufficient to take it out of the order and disposition of the assignor (Ex parte Smither, 3 M. & A. 693; 1 Deac. 418; Douglas v. Russell, 4 Sim. 524; Boyd v. Mangles, 3 Exch. 387), The only person however to whom notice of the assignment need be given is the party from whom the assignor is to receive the payment of his money, and not the original debtor. Thus in Gardner v. Lachlan, 4 Myl. & Cr, 129, Lachlan on behalf of the owner of a ship entered into a charter-party with the Com- missioners of the Navy, by which they agreed to pay to Lachlan, on the owner's behalf, a certain sum for freight. The owner after- wards assigned all the freight accruing under the charter-party to Gardner as a security for a debt, and Gardner gave notice of the assignment to Lachlan, but not to the Commissioners of the Navy. The owner having subsequently become bankrupt, it was held by Lord Cottenham, C, that the notice given to Lachlan took the arrears of freight out of the order and disposition of the owner. " When," said his lordship, " the doctrine was first entertained that debts due to a trader were within the 21st James I. c. 19, it became necessary to lay down some rule by which such property might become capable of a secure assignment. It was considered that the debt, whilst unpaid, was in the order and disposition of the trader, inasmuch as he could demaad payment of it when due, or direct payment to be made to any other person ; and it was therefore held that notice, authorized by the creditor, to the debtor, of the fact that the debt had been assigned to another, as it prevented it from there- after being so in the order and disposition of the trader, would prevent the debt from being within the operation of 21 James I. , . The ground of the rule so established rests wholly upon this, that the 634 JOY V. CAMPBELL. party to wliom the notice is to be given is the party from whom the trader trusts to receive payment — in- other words, the party holding the property at the order and disposition of the trader, and which order and disposition is, for the future, to cease in consequence of the notice. . . . Upon this principle, no notice can be necessary to any party from whom the trader is not to receive payment, or who does not hold any property at the order or disposition of the trader. . . . When, indeed, the freight had been paid to Lachlan, he became debtor for the amount. Notice, therefore, was very properly given to him, but was not necessary to any other party. If any cases have required notice, under such circumstances, to any qther party, they must have departed from the reasoning in Ryall v. Rowles, 1 Ves. Sen. 348, and Jones v. Gibbons, 9 Ves. 407) ; but upon exam- ining the cases cited, I do not find that they have done so." See also Buck v. Lee, 3 N. & M. 580 (28 E. C. L. E.) ; Ex parte M'Turk, 2 Deac. 58. *Where the bankrupt was himself the assignee of a chose J -in action, and bad given no notice of the assignment, if he himself afterwards assigned the chose in action, and his assignee gave no notice of such second assignment, it was at one time held that the reputed ownership clause did not apply, because it was said that the bankrupt having given no notice, could not be said to have the order and disposition of the property. See Ex parte Newton, 4 D. & C. 138. But this case must be considered as overruled by the subsequent case of Ex parte Wood, 3 M.,, D. & D. 315 ; which de- cides that notice by the person to whom the bankrupt had assigned ' a chose of action under similar circumstances was necessary, in order to take it out of the order and disposition of the bankrupt. And see the remarks of Lord Justice Turner in Bartlett v. Bartlett, 1 De G. & J. 143. A fortiori would a chose in action if assigned to a bankrupt be in his order and disposition if he gave notice of tte assignment, bu|t a person to whom he made a subsequent assignment neglected to give notice of it before the bankruptcy: Ex parte Arkwright, 3 M., D. k D. 129 ; Ex parte Masterman, 4 D. & C. 751 ; 2 M. & A. 209. And notice is equally necessary, where debts are assigned by a retiring. partner to a partner continuing in the trade. See Ex parte JOT V. CAMPBELL. 635 Burton, 1 G. & J. 207 ; Ex parte Usborne, 1 G. & J. 358 ; Ex parte Colwill, Mont, 110 ; Ex parte Tennyson, 1 Mont. & B. 67. A mere notice, however, to pay debts to one of the partners will not take the debts out of the order and disposition of the firm of which he was a member. Thus in Ex parte Sprague, 4 De G., M. & G. 866, a dissolution of partnership was advertised in the " Ga- zette," and a circular sent in the name of the dissolved firm, request- ing debtors to the firm to pay their debts to one partner. It was held by the Lord Justices of the Court of Appeal in Chancery, that the notice was insufficient to take the debts out of the reputed ownership of the firm. " At the time of the dissolution of the part- nership," said Turner, L. J., "the debts belonged to the partners jointly. They must have so continued until notice was given to the debtors that the debts which had been joint property, had be- come the sole property of the one. Now there is nothing in the shape of such notice, except the fact that authority had been given by both partners to the debtors to pay the amount of their debts to one of these partners. I take it that'a mere authority of that de- scription would not alter the property between the two. Therefore I think that, as to the debts, there was not here sufficient to take the case out of the operation of the statute as to reputed ownership." An exception to the general rule has been established in the case of negotiable securities, such as bills of exchange or promissory notes, *which do not require notice to the debtor, in order to take r*AnQ them out of the operation of the clause as to reputed owner- ship : Ex parte Price, 3 M., D. & De G. 586, 595 ; Ex parte Barnett, 1 De Gex 203 ; Belcher v. Campbell, 8 Q. B. 1 (55 E. C. L. R.). And it seems that where the acceptor of bills of exchange, en- dorsed by the drawer, gives a bond in order to secure their payment, and the bond and bills are mortgaged together, notice to the obligor is not necessary, in order to take the bond out of the order and dis- position of the mortgagor : Ex parte Barnett, 1 De Gex 203. It should, however, be mentioned that in the case of Ex parte Price, 3 M., D. & De G. 586, which was not cited in Ex parte Barnett, notice was held necessary to give validity to a deposit of a warrant of attorney which was expressed to be executed to secure payment of two bills of exchange, one of which was deposited as part of the 636 JOr V. CAMPBEEL. security. But in that case it must be observed, that the deposited bill was not endorsed, and the depositee had only an equitable right to have his security completed by the endorsement of the bill. Upon the assignment of a chose in action, if there be several co- debtors or co-trustees, notice ought to be given to all of them, although notice to one of them will, it seems, be sufficient notice to all, so long as the circumstances of the case remain unaltered ; but it will not be sufficient upon the death of the individual to whom the notice was given, or in the case of his being a trustee upon his ceasing to act in that capacity : Smith v. Smith, 2 C. & M. 231 ; Timson v. Ramsbottom, 2 Kee. 35 ; Meux v. Bell, 1 Hare 73 ; Wise V. Wise, 2 J. & L. 403. The reason is this, that a person who is asked to advance his money on the trust property, whether by way of purchase or of mortgage, ought, for his own safety, to apply to every one of the trustees ; and if he omits to take that precaution, it is his own fault if he should suffer loss in consequence of the omission : per Kindersley, V.-C, in Browne v. Savage, 4 Drew. 640. It is not necessary that a notice to a trustee should be a notice formally given in writing ; a verbal informal notice is sufficient, pro- vided the fact of the assignment is distinctly and clearly brought to the mind and attention of the trustee : per Kindersley, V.-C, in Browne v. Savage, 4 Drew. 640 ; North British Insurance Com- pany V. Hallett, 7 Jur. N. S. 1263. The purpose for which notice to a trustee is given, if a notice be in fact given, is altogether immaterial. See Smith v. Smith, 2 C. & M. 231: in that case the plaintiff made advances to Maberly, a trader, and afterwards took from him as a security an assignment of an equitable life-interest in stock, and other property standing in the names of and vested in three trustees under a marriage set- tlement. There being rumors about the solvency of Maberly, the plaintiff, in the course of conversation subsequently to the assign- *A74.T '^®'^*' ^^^ '^°* "^^^ * view of giving *validity to his security, -■ mentioned to one of the trustees, who was not the acting trustee, that he was secured by the assignment. It was held by the Court of Exchequer that this communication was a sufficient notice to prevent the interest of Maberly passing to his assignees on his bankruptcy, as property in his order and disposition. Where, however, one of the trustees was also a beneficiary, and JOY V. CAMPBELL. 637 assigned his beneficial interest in the fund to a stranger, it has been held that the notice acquired by such trustee as assignor will not constitute notice to the other trustees, it being the interest of such trustee as assignor to conceal the assignment : Browne v. Savage, 4 Drew. 635. But where such trustee assigned his beneficial interest to one of his co-trustees, the notice which that co-trustee acquired as assignee, constituted during his life notice to the trustees, it not being his in- terest as assignee to conceal the assignment : Browne v. Savage, 4 Drew. 635. So it has been held that if the mortgagee of goods and chattels be one of the trustees to whom notice ought to be given, as he must necessarily, from the nature of the transaction, have full notice of his own act, that will be sufficient to prevent reputed ownership : Ex parte Smart, 2 M. & Ayr. 60, and Ex parte Smyth, 3 M., D. & De G. 687, and the remarks thereon in Ex parte Boulton, Re Sketchley, 1 De G. & J. 163. Notice to the solicitor of the trustees is sufficient : Bickards v. Gledstanes, 3 Giff. 298. Notice must also be given to an assurance office of an assignment of a policy in order to take it out of the order and disposition of the assignor, although the policy be delivered to the assignee, and any rule of the office not to attend to notices is immaterial. Thus in Williams v. Thorp, 2 Sim. 257, a policy effected by J. Newman with the Equitable Assurance Company was assigned by him to secure Thorp a sum of money and interest. The policy was given up to the mortgagee, but no notice of the assignment was ever given to the office. Newman became bankrupt. It was held by Sir L. Shadwell, V.-C, that the assignees in bankruptcy were entitled to the benefit of the policy. "In Ex parte Munro," observed his honor, "the Vice-Chancellor says, 'Did the delivery of the bond by the bankrupt take away his power to receive the debt ? Certainly not ?' Supposing that the executor of Newman had obtained pay- ment of the sum insured from the office, could the office have been compelled to pay it over again to Thorp ? I see no ground upon which the office could have been compelled to make a second pay- ment. If this society does not take notice of assignments, it takes all the risk of such conduct upon itself." " See also Ex parte Colvill, Mont. 110; Ex parte Tennyson, 1 Mont. & Bligh. 67; Thompsons. Speirs, 13 Sim. 469; In re Bromley, 13 Id. 475; Waldron v. Sloper, 63S JOY V. CAMPBELL. *1 Drew. 193; Ex parte Patch, 7 Jur. 820; Ex parte *475] p^jgg^ 3 ]yj_^ J) ^ j)g ^ 58g . Thompson v. Tompkins, 2 Drew. & Sm. 8 ; Re Webb's Policy, 15 W. R. (V.-C. W.) 529. And notice to the insurance office is equally necessary where the bankrupts are not the original insurers, but only equitable mortgagees. See Ex parte Arkwright, 3 M., D. & De G. 129. There the bank- rupts being mortgagees of various policies of life assurance, of which the respective offices had notice, deposited them with their bankers to secure the repayment of advances ; but the bankers gave no notice of such deposit to the different offices. It was held by Knight Bruce, C. J., that the policies must be considered as being in the order and disposition of the bankrupts. The cases decided by Sir John Cross, in which he held that re- puted ownership of a policy was a fact to be proved, and was not conclusively to be inferred from the absence of notice to the office of a change of ownership (see Ex parte Heathcoate, 2 M., D. & D. 711 ; Ex parte Cooper, Id. 1), must be considered as overruled by the cases already cited, which establish that notice to the office of an assignment or deposit of a policy is sufficient of itself to take the policy out of the order and disposition of the assignor or depo- sitor. It has moreover been decided at law, that the question whether a trader was at the time of his bankruptcy the reputed owner of a policy of assurance, is a question of fact, depending not merely upon a notice in' writing having been given to the office, but upon a consideration of all the circumstances attending the possession of the property, at any rate when a verbal notice has been given to the office. See Edwards v. Scott, 1 M. & G. 962 (89 E. C. L. R.) ; 2 Scott N. R. 266. There trover having been brought by the assignees of Weston, a bankrupt, for a policy of assurance, the defend- ants pleaded not guilty, and that the plaintiffs were not possessed as assignees ;' and at the trial it appeared, that in 1836 the policy had been deposited by Weston with the defendants as a security for an advance of money ; that in March, 1837, Weston became embar- rassed, and a meeting was called of his creditors, at which a list of his debts was read aloud, and handed round the room, which list contained a statement thafrthe policy in question was deposited with the defendants as a security for 3000Z., from which sum 1200?., the estimated value of the policy, was deducted, leaving the defendants JOY V. CAMPBELL. 639 creditors for the balance, 1800?. ; that on the 15th of July, 1837 (the fiat being granted on the 27th), an agent of the defendants called at the insurance office, and asked if the premium on the policy had been paid, at the same time stating that policy had been depos- ited with the defendants; that the insurance company kept a book for entering written notices of assignments and deposits of policies, which book contained no such *entry with respect to the r^^-rf. policy in question ; and that the insurance office paid no re- gard to a verbal notice. It was held by the Court of Common Pleas that a direction by the judge at the trial, that the defendants had not got rid of the apparent ownership of Weston, by what passed at the meeting of the creditors, and by the conversation at the office, not followed up by a notice in writing — was wrong, it being a question for the jury, whether, under those circumstances, Weston was the reputed owner of the policy at the time of his bankruptcy. It is submitted that in this case, upon proof being given of the verbal notice to the office, it ought to have been laid down as law, that the policy was taken out of the reputed ownership of the bank- rupt : Edwards v. Martin, 1 Law Rep. Eq. 121. Where a policy is deposited with the intention of conferring a lien 'upon the instrument only, and not with the intention of passing any interest in the debt, the assignee is not entitled to it as being in the possession, order, and disposition of the bankrupt as reputed owner, though no notice of the deposit has been given to the office. See Gibson v. Overbury, 7 Mees. & W. 555, where in such a case it was held that the assignee could not recover the policy of assur- ance in trover. And Lord Abinger, C. B., observed, " In the case of a mere lien from a deposit by the bankrupt, I believe there is no example of the assignees having been held entitled to maintain trover. Our decision in this case will not affect the title of the as- signees, who have claimed the debt; they may still give a discharge to the office for the debt due upon the policy, to which the bankrupt was entitled, and inasmuch as there was no legal assignment of the policy. But the lien upon the policy remains unaffected by the bankruptcy ; and therefore we think the defendants are entitled to judgment:" Broadbent v. Varley, 12 C. B. N. S. 214 (104 E. C. L. B,.). Where however, the policy is handed over with the intention of 640 JOY V. CAMPBELL. giving the party taking it not a mere interest in the paper of the policy, but a claim to the money secured by it, the case wiH, even at common law, not be considered to come within the decision of Gibson V. Overbury. See Green v. Ingham, 2 Law Rep. C. P. 525. There A. delivered to B. a policy of insurance on his own life, to secure a loan from B., with the intention of giving B. an interest in the sum assured. No notice of the transaction was given to the in- surance oflSce. It was held by the Court of Common Pleas that the policy remained in the order and disposition of A., and that on his bankruptcy his assignee was entitled to recover it from B. " The decision in Gibson v. Overbury, 7 M. & W. 655," said Byles, J., " when examined, amounts to . this, that if the policy is deposited without any intention that the person with whom it is deposited should have conferred upon him *an equitable right to recover the -■ mon^ payable thereunder, but only with the intention of giving him a dry interest in the paper, such deposit does not fall within the principle applicable to an assignment of a debt, and the instrument so deposited is not in the order and disposition of the bankrupt at the time of the bankruptcy, within the provisions in the Bankruptcy Act; but that, if the deposit was made upon an agreement that the depositee should have confefred upon him a right to the money, then, as the debt would pass to the assignee, so the paper, which is the title-deed to the debt, would pass to him also." With regard to the question what notice of the assignment of a policy of assurance is sufficient, it is clear that notice to the directors as a body would be effectual notice. So notice may be given to an officer representing the companyj and the effect of the notice thus received by that officer is sufficient to bind the company even though not communicated to them (In re Hennessy, 2 Dru. & Warr. 663, per Sugden, L. C), and even although the notice of the assign- ment was acquired by the agent in a different capacity, for instance as solicitor for the assignor and assignee : Gale v. Lewis, 9 Q. B. 730 (68 B. C. L. B,.). If the agent of the insurance office is himself the assignor, notice to him of the assignment will not, it seems, be sufficient, for he has obviously an interest in withholding it from his employers. In re Hennessy, 2 Dru. & War. 555, 565. See also Ex parte Sketchley, 1 De G. & J. 163. In some cases where the assignor of a policy in a mutual assu- JOY V. CAMPBELL. 641 ranee office was a copartner, in consequence of his being entitled to share jn the profits of the company, it has been held that the com- pany would, by implication of law, have notice through the assignor, one of its members, sufficient to take the policy out of his order and disposition. See Duncan v. Chamberlayn, 11 Sim. 123; Ex parte Waithman, 2 M. & A. 364 ; 4 Deac. & Ch. 412. These cases, however, have been overruled, and it is clear now that such notice is insufficient. See Thompson v. Speirs, 13 Sim. 469; Ex parte "Wilkinson, Id. 475; In re Hennessy, 1 Conn. & L. 559; 2 Dru. & War. 555; Ex parte Arkwright, 3 M., D. k D. 129; In re Styan, 2 M., D. & D. 219. If a mortgagee of a policy of assurance deposits it by way of submortgage, and gives notice of the submortgage to the insurance office, but not to the original mortgagor, this will be sufficient to take the policy out of the reputed ownership of the mortgagee : Ex. parte Barnett, 1 De Gex 194. Where a bankrupt who was one of the directors of a life assu- rance office deposited a policy of that office with his bankers, as a collateral security for advances, one of the bankers being also one of the auditors of the assurance office, it was held by the Court of Review that this wafe sufficient notice to the office so as to prevent the *claim of reputed ownership: Ex parte Waithman, 4 Deac. & Ch. 412; sed vide Ex parte Watkins, 2 Monk. &. L**'^ Ayr. 348. Where notice of a mortgage of a policy has once been given to. an insurance office, it will be sufficient to take the policy out of the.- order and disposition of the assignor, although no notice may have been given to the office on a subsequent change in the object of the mortgage. See Ex parte Barnett, 1 De Gex 194. There a trader deposited policies of insurance with his bankers to secure the float- ing balance due from him, and signed a memorandum of the object of the deposit, of which notice was given to the insurance office. Afterwards he took a partner, and the policies remained and were treated as a security for the floating balance due from the firm ; but of this change in the object of the security, no memorandum was signed, nor was any notice given to the office. It was held by Sir J. L. Knight Bruce, C. J., that the bankers were entitled to the usual order, as in the case of an equitable mortgagee without a written memorandum. "I am of opinion," said his honor, "that 41 642 JOY V. CAMPBELL. although of that change the oflSce had not notice, the policy was nevertheless not in the order and disposition of the bankrupt, that being effectually prevented by the prior notice rendering it impos- sible to deal with the policy without making inquiries." It is usual and indeed advisable to give notice of an assignment of a policy to the oflSce in writing, nevertheless, a verbal notice is sufficient, even although it be not entered iii the books of the office (Ex parte Tanner, 1 Bank & Ins. Rep. 156; and see Re Raikes, 4 Deac. & Ch. 412; Edwards v. Scott, 1 M. & G. 962; 2 Sco^t, K R. 266; Ex parte Masterman, 4 Deac. & Ch. 767); but whichever mode is adopted, it ought to be a clear and distinct notice. Thus a mere direction that all letters from the insurance office are to be sent to a particular person, and that the premiums will thenceforth be paid by him, will not amount to a sufficient notice of an assign- ment to the client of such persons. See West v. Reid, 2 Hare 249 ; there Daniell in 1816 assigned a policy of insurance on his life to a trustee, to secure a sum of money owing to WoodroiFe, and soon after the solicitor of the latter caused a memorandum to be entered in the office of the insurance company, directing that all letters were to be sent- to such solicitor, and the premiums were thence-, forth paid by Woodroffe through the hands of such solicitor ; but the insurance company were imt informed on whose behalf the solicitor acted. In 1826, Daniell became bankrupt, and his as- signees declined to interfere respecting the policy. The premiums continued to be paid by Woodroffe through his solicitor, during his life, and by the executors of Woodroffe through their bankers after his death. Daniell died, 1839. It was held by Sir James Wigram, *4791 ^•"^•' *'^^* *^® *policy was in the order and disposition of the bankrupt, and that there was not any notice given to the insurance office of the assignment of the policy to take it out of such order and disposition. See all Burridge v. Row, 1 Y. & C. 0. C. 183. So likewise in the case of Ex parte Carbis, 4 Deac. & Ch. 354 ; a party to whom the bankrupt had assigned a policy of assurance, sent an agent to the office for the purpose of paying the annual pre- mium, who, in the course of conversation with one of the clerks in the office, told him of the policy having been so assigned. It was held that this notice was not sufficient ; and see Edwards v. Martin, 1 Law Rep. Eq. 121. JOY V. CAMPBELL. 643 It has however been held that the slightest circumstance of notice is sufficient. Thus a letter to a secretary of an insurance company, in which the writer says, " I am holder of the under-mentioned poli- cies," and inquires what the office will give for them, is sufficient notice of an assignment : Ex parte Stright, Mont. 502 ; 2 Deac. & Ch. 314. The fact that one of the parties to an assignment of a policy is an agent for the assurance office, will not amount to constructive notice of the assignment to the office, if he was not an agent for that par- ticular purpose : Ex parte Patch, 7 Jur. 820. So where an insur- ance has been effected in a central office of the company, notice of an assignment to an agent in a country office, connected with the central office, will not be sufficient (In re Hennessy, 2 Dru. & War. 555), a fortiori, if the agent be himself also the assignor of the policy : Id. Where the same person is secretary to two insurance companies, it seems to be doubtful whether his knowledge of a deposit of shares acquired by him as secretary to one of the companies, amounts to notice to the other, so as to prevent the operation of the clause as to reputed ownership : Ex parte Bignold, 3 Deac. 161. On a deposit of a policy of assurance by way of equitable mort- gage, the onus does not lie on the mortgagee to show that notice of the deposit was given to the office before the act of bankruptcy, but with the assignees to show that it was not : Ex parte Stevens, 4 Deac. & Ch. 117 ; Ex parte Dobson, 2 M., D. & D. 601. It has been supposed to have been decided that shares in a public company being personal property, will remain in the order and dis- position of a bankrupt, unless upon a transfer of them he has com- plied strictly with the forms required by the provisions of the Act of Parliament constituting such company, even although notice of the transfer may have been given to the proper parties. And that this rule is applicable not only where the act expressly relates to transfers between third parties, but also where it impliedly relates to cases in which the company are the transferees. See Ex parte The Lancaster Canal Company, Re Dilworth, 1 Deac. & Ch. 411 ; Mont. & Bli. 94. There Dilworth and his partners — a firm *of r*4go bankers — becoming treasurers of The Lancaster Canal Com- pany, entered into a bond for the purpose of indemnifying the com- pany against any loss which might arise in consequence of their fail- 644 . JOY V. CAMPBELL. ing properly to account. In addition to this bond, Dilworth, who at that time was the holder of 345 shares (which were personal estate) by an assignment dated September, 1823, transferred 300 out of the whole number to the company, and at the same time the com- pany executed a trust deed by which they undertook to pay the dividends of the shares to Dilworth, until there should be some de- fault in the accounts of the treasurer ; and in case of any default they were to have the power of selling the shares to the extent of making good the deficiency. By the provisions of the Companies Act, 32 Geo. 3, c. 101, a certain course was to be pursued for the transfer of shares, and a particular form of instrument was to be executed which is set out in the Act. It is provided that a duplicate shall also be -executed, and that the duplicate shall be lodged with the committee, or with the clerk ■ of the committee, and it shall be entered in a book; and that until these forms are complied with, the party is not to be entitled to receive any profits of the shares, or to act as proprietor. And there is a further provision that the names of the proprietors should be entered in a boqk to be kept for that purpose by the clerk of the concern. The provisions of the Act were not complied with, an instrument of transfer to the Canal Company alone was executed, and that was delivered to the clerk. No duplicate was executed, n6r entry made of the execution of the transfer, agreeably with the provisions of the Act. On the 13th of February, 1826, a commission issued against Dilworth and his partners. Lord Lyndhurst, C, held that the 300 shares transferred by Dilworth to the Canal Company, were in his order and disposition. "It is quite obvious," said his lordship, " as I collect from the transaction, that it never was in- tended that Dilworth should cease to be apparent proprietor ; it was intended that this should be a mere security in the hands of the company, to be made use of in case of default of the treasurers, and not otherwise. It is perfectly clear, therefore, taking the provision of the Act of Parliament and the trust-deed together, that during the whole of this period, and at the time of the bankruptcy, Dil- worth .was entitled to receive the dividends on his shares. It was perfectly clear also, that he was entitled to vote as a proprietor. There seems, therefore, as far as the public are concerned, to have been no alteration in the apparent situation of Dilworth; he had i'ginally been a proprietor of these 300 shares, receiving the divi- JOY v.. CAMPBELL. 645 dends, voting as a proprietor ; and those transactions which took place between him and the company did not at all vary his apparent situation, for he was still on the books of the *company as rifAo-t a proprietor. There is no entry made of his having made any transfer of his shares, he was still entitled to receive his divi- dends. I should, therefore, think he had the order and disposition of this property as apparent owner." Upon appeal to Lord Brougham, C, it was argued, on behalf of the appellants, that the forms required by the Act were required merely as an indemnity to the company, and were inserted for its safety alone ; that if accompanied by notice, the transfer though informal would be binding; that the notice was complete, inasmuch as the company was at one and the same time the party liable to pay the dividends on the shares, and the transferree of the interest herein; and that any person, by inquiry at the office of the com- pany, might have ascertained who was the true owner. Lord Brougham, 0., however, though without giving any reasons, affirms the decision of Lord Lyndhurst, C. If Ex parte The Lancaster Canal Company can only be sup- ported upon the ground that notice was not sufficient to take such shares out of the order and disposition of the bankrupt, because a legal transfer "in the form required by the Act had not been exe- cuted, it can scarcely be supported either by principle or by authority. In the subsequent case of Ex parte Masterman, 2 Mont. & A. 209, the owner of shares in an insurance company assigned them by way of 'mortgage, but the transfer not being made in pursuance of the clauses in the deed of settlement of the company, the shares still remain in the books of the company in the name of the as- signor. Notice, however, of the transfer having been duly given to the company before the bankruptcy of the assignor, it was held by the Court of. Bankruptcy that the shares were not in his reputed ownership. Sir George Rose distinguished the case Ex parte The Lancaster Canal Company from the case before him, upon the ground that in the former case the company was regulated by an Act of Par- liament whereas the latter case was a mere joint-stock company. Lord Cranworth, C, however, denies this distinction in the subse- quent case of Ex parte Littledale, In re Pearse, 6 De G., M. & G. 714 726. There in 1846, Littledale lent a sum of money to Pearse to enable him to purchase the requisite amount of shares in two 646 JOY V. CAMPBELL. public companies — The East and West India Dock Company and the Imperial Fire Company — to qualify him for the office of direc- tor in each, and Pearse assigned the shares in both companies in which he had become director to Littledale as a security for the loan. The qualification for the- office of director in the East and West India Dock Company would have been lost by the disposal or reduction of the amount of that qualification, and the provisions of *4891 *^^^ ^^^^ ^y which the other company was constituted re- quired that its directors should be possessed of or entitled to the requisite amount of shares in their own right. The assignment was not made in the form or with the formalities required by the Act of Parliament, incorporating the Dock Company, or by the company's deed of settlement of the Imperial Fire Assurance Com- pany. Five days only before Pearse committed the act of bank- ruptcy upon which he was adjudicated bankrupt, Littledale gave notice to the directors of both companies of the assignment to him. There was, however, no binding contract which restrained him from giving notice whenever he might think right so to do. At the time of his bankruptcy Pearse was actually a director of one of the companies, and out of office by rotation in the other, in which pro- bably he would have been re-elected. It was held. by a full Court of Appeal in Chancery (dubitante Knight Bruce, L. J.) that the ■ shares in neither company were in the possession, order or dis- position of Pearse at the time of his bankruptcy, with consent of the true owner. The judgment of Lord Justice Turner, which clearly distinguishes this case from Ex parte The Lancaster Canal Company, Re Dilworth, is deserving of a careful perusal. " As I understand the transaction between the parties," said his Lordship, "it was simply this : — Mr. Littledale took a security upon the shares of Mr. Pearse in companies of which he was a director. He gave no immediate notice.of that security. It was competent to him upon the contract to give notice of the security at any time when he thought proper to do so. The . effect of his giving the notice would be at once to determine Mr. Pearse's position as a director of these companies. Under the cir- cumstances of this case, it does not seem to me that if, instantly upon the notice being given by Mr. Littledale, a bill had been filed in a Court of Equity against Mr. Pearse, to compel him to perfect the legal title to that property which had been equitably transferred by JOY V. CAMPBELL. 647 the contract of the parties, it would have been competent to Mr. Pearse to resist the performance of that contract, by the transfer of the legal property, upon the ground that there had been a fraudulent intention on the part of Mr. Littledale to defeat the provisions of the Acts of Parliament , It seems to me, that the effect of the notice given to the companies, was to take away from Mr. Pearse the capacity of dealing with these shares. That was done at the instance of the person who had the security upon the shares, and who had become the true owner of them ; and therefore, there can- not, as I 'think, be said to be a holding of the possession of these shares by the bankrupt, with the consent of the true owner Some cases were cited in the course of the argument which per- haps it may be material to distinguish from the present. I refer *particularly to the case of Ex parte The Lancaster Canal r*4Qq Company, Re Dilworth, 1 Deac. & Ch. 411 ; Mont. & Bl. '- 94, and the case of Nelson v. The London Assurance Company, 2 Sim. & Stu. 292. The case- of Re Dilworth, at first sight, appears to have some bearing upon the question before us, but on looking at the case I find that the intention of the security was this — that in the event of a default being committed by the treasurer, which default had not been and never was committed, the security should be in force. But what was the consequence ? that the Lan- caster Canal Company could not file a bill in Equity, for the pur- pose of effectuating that security, until the default had been com- mitted. It would have been a fraud in the Lancaster Canal Company to have set up as against Dilworth any rights under the agreement which had been entered into with them when there had been no default on the part of Dilworth, and the effect, therefore, was that there was no charge in equity upon the shares, by virtue of the transaction which had taken place between Mr. Dilworth and the Lancaster Canal Company, and certainly there was none at law. That, therefore, was a case in which the party claiming under the deposit had no right either at law or in equity. So in the case of Nelson v. The London Assurance Society, 2 Sim. & Stu. 292 ; there the agreement between the parties contained this provision, "and further it was agreed that until there should be some order or resolution of the Court of Directors to the company, it should be lawful for each of those persons to receive their respective salaries, and the dividends upon their stock or shares, and to sell and trans- 648 JOT V. CAMPBELL. fer their stock or shares." Therefore, until the order and resolu- tion of the Company was made, there was no capacity on 'the part of those with whom the contract had been entered into, to enforce that contract in equity. Those two cases seem to me to be clearly distinguishable from the present ; and I am satisfied that in main- taining the decision of the learned Commissioner, we should disturb transactions which have taken place and are constantly taking place with regard to property of this description, and that we should not be giving that effect to equitable rights which we are bound in bank- ruptcy, administering both law and equity, to give." Lord Cranworth, C, considered the case distinguishable from Ex parte Lancaster, upon the "broad ground" that "it was clear that no notice had been given" of the assignment in that case up to the time of the bankruptcy. His Lordship however appears to have been laboring under a misapprehension, because in Ex parte Lan- caster the assignment was actually made to the Canal Company and deposited with the clerk ; they must therefore have had notice of it. Upon a deposit by way of mortgage of shares, even, it seems al- though a certain form is required by Act of Parliament for their *4.84.1 *trarisfer, they will be taken out of the order and disposition of the mortgagor or depositor, by proper notice being given to the directors or to their secretary (Ex parte Harrison, 3 Deac. 185; Ex parte Dobson, 2 M., D. & De G. 685 ; Ex parte Richard- son, 3 Deac. 496; Ex parte Rayner, 1 Bank. & Ins. Rep. 256); otherwise they will be considered as being. in his order and disposi- tion : Ex parte Spencer, 1 Deac. 468 ; Ex parte Nutting, 2 M., D. & De Gr. 302; Ex parte Vallance, 2 Deac. 354; Cumming v. Pres- cott, 2 You. & Col. Exch. Cas. 488; Ex parte Stewart, 13 W. R. L. C. 356 ; 34 L. J. (Bk.) 9. Where shares of a company stand in the name of the bankrupt, who is on all occasions the only apparent owner, and has possession of the certificates of the shares, but the shares belong to another, in whose favor there exists a secret declaration of trust, the shares will be in the reputed ownership of the bankrupt: Ex parte Wat- kins, 2 Mont. & Ayrt. 348; 1 Deac. 131, reversing s. c. 1 Mont. & Ayrt. 689; 4 Deac. Ch. 87. See also Ex parte Ord, 1 Deac. 166 ; 2 Mont. & Ayrt. 724. Notice to a company should ordinarily be given to the person appointed for that purpose, as the secretary or managing director, JOY V. CAMPBELL. 649 for a notice to any other oflScer of the company might be insuflS- cient : Ex parte Patch, 7 Jur. 820 ; In re Hennessy, 2 Dr. & War. 555 ; Ex parte Watkins, 2 Mont. & Avrt. 348 ; Ex parte Burbridge, 1 Deac. 131; Ex parte Nutting, 2 ]VL, D. & D. 302. Where the person who mortgages shares in a company is the person to whom notice is in ordinary cases given, the notice which he necessarily has of such a transaction is not sufficient, but it should be given to the company. Thus in Ex parte Sketchley, 1 De G. & J. 168, a holder of shares ,in a railway company, which was subject to the provisions of the Companies Clauses Consolida- tion Act, 1845; was one of the secretaries of the company, and a solicitor. He borrowed money of a client on a deposit of the cer- tificates of the shares, but no further notice of the deposit was given to the company. On the solicitor becoming bankrupt, it was held by the Lords Justices of the Court of Appeal in Chancery, that the shares were in his order and disposition, with the consent of the owner, his client. "The question," said Lord Justice Turner, "is whether there was sufficient notice to the company; and I am of opinion that there was not. Notices of this description operate not only to prevent the property which is the subject of the notice being disposed of without the knowledge of the person by whom or on whose behalf the notice is given, but also to prevent injury to other persons from subsequent dealings with the property affected by the notice, in ignorance of the prior claim upon it. It is the duty therefore of the person by whom or on whose behalf the notice is given, to take care that it reaches *the person who has the r^Aoc control over the property which it affects ; and this, I think, cannot be said to have been done, where, there being other and more effectual means of giving notice, it has been given only to a person who has an interest in withholding it. Lord St. Leonards has inti- mated a strong opinion to that effect in Ex parte Hennessy, 2 Dru. & W. 55, and I agree in that opinion. Besides, in this case I think there .was no intention to give notice to the company. The respond- ent was dealing with the bankrupt as his solicitor, and there was no intention that the company should be affected by that dealing. That the bankrupt was bound, by his position, to give notice to the company, cannot affect the case." Suppose, however, that a director mortgages his shares by de- posit, will the notice which he necessarily has of the transaction be 650 JOY V. CAMPBELL. sufficient to take the case out of his order and disposition ? It would seem from the case of Browne v. Savage, 4 Drew. 635, ante, p. 474 (which, however, was a case where there were several trustees), that it would not, because it would — as laid down by Kindersley, V.-C. — be his interest to conceal the transaction from the other directors. It has, however, been decided, that where all the directors of a joint stock company, one of whom was both manager and secretary, and being all the persons to whom notice should be given, have made a joint deposit of their shares, that such transaction constitutes suf- ficient notice to take such shares out of the order and disposition of the depositors upon their bankruptcy, although it is obvious in such a case that there was no independent third party who could have prevented them dealing with the shares. See Ex parte Stewart, Re Shelley, 13 W. R. 356 ; 34 L. J. Bk. 6 ; 11 Jur. N. S. 25. It has been held until recently, though not without some conflict of authorities, that the doctrine of reputed ojvnership was applicable to cases where a secret partner left goods and chattels belonging to the firm in the order and disposition of the ostensible partner. See Ex parte Enderby, 2 B. & C. 389 (9 E. C. L. R.). There A. and B. were partners, but the whole of the business was carried on in the name of A. alone, B. never appearing to the world as a partner ; and at the dissolution of the partnership by effluxion of time, all the partner- ship stock and effects, by agreement between them, were left in A.'s hands, who was to receive and pay all the debts due to and from the concern, and to repay, by instalments, the capital brought in by B. The business was carried on by A. for a year and a half the same as ■ before, when he became bankrupt. It was held by the Court of King's Bench, that all the partnership property and effects so left in A.'s hands, and also the debts due to the concern, were in his order and disposition. See also Ex parte Dyster, 2 Rose 256 ; Ex parte Jennings, Re Starkey, Mont. 45 ; Smith v. Watson, 2 B. & C. *486] *^^^ (^ ^- ^- ^- ^O; Ex. parte Chuck, 8 Bing. 469, 472 (21 E. C. L. R.) ; overruling the case of Caldwell v. Gregory, 1 Price 119. In the recent case, however, of Reynolds v. Bowley, 2 Law Rep. Q. B. 474, in the Exchequer Chamber, reversing s. c. in the Court of Queen's Bench, 2 Law Rep. Q. B. 41, it was held that where one partner allows the other bond fide to carry on the business ostensibly as his own, on the bankruptcy of the latter the share of the dormant partner, in the partnership stock in trade, JOT V. CAMPBELL. 651 cannot be dealt with as being in the possession, order or disposition of the bankrupt, with the consent of the true owner. This is put in a very clear light by Kelly, C. B., in his able and convincing judgment. His Lordship, after referring to the case of Ex parte. Dyster, 2 Rose 256; Ex parte Enderby, 2 B. & C. 389 (9 E. C. L. R.) ; and Smith v. Watson, Id. 401, as adverse to the judgment he was about to deliver, and referring to Joy v. Campbell, 1 S. & Lef. 336, ante, p. 446 ; and to the decision of Coldwell v. Gregory, 1 Price 119, in the Court of Exchequer, as authorities in support of it, adds: — "We have, besides that, not a direct decision, but the high and clear authority of Parke, B., in delivering the judgment of the Court of Exchequer, in Load v. Green, 15 M. & W. 223, where the proposition is clearly pointed out which, I think, lies at the very root of this question, and is fatal for the argument urged for the defendants, viz., that the apparent owner must he oneperson, the true owner be another person The question that arises is this : — Had the bankrupt, when he had possession as ostensible partner in a copartnership in which there is also a dormant partner, possession of the partnership eifects by the consent and permission of the true owner? Now, if (as Parke, B., observes) the reputed owner who has the actual possession must be one person, and the true owner must be another, if in truth the goods must belong to one person, and the true owner of those goods of his own free will and consent permit another, not the owner, to appear to the world as the reputed owner of them, how can the answer "be in the aflSrm- ative ? We find here {i. e. in section 125), that the words are, " by consent and permission of the true owner, has in his possession, order or disposition." The bankrupt was the true owner himself; he was as much the true owner of these goods as the plaintiff was ; and when we come to look at the actual facts, and the legal effect of them, we find that he had possession of those goods, not by the con- sent of any other person, or by the consent of the plaintiff, but in his own right, and by virtue of a contract, to which, indeed, the plaintiff also was a party, and to which the bankrupt also was a party, and which vested in him exactly the same description of ownership, or joint ownership, that the plaintiff himself possessed. The language of the statute seems to point to this, a state of things in which *the owner of the property allows the property to j-*487 remain in the possession of another person, so that the other 652 JOY V. CAMPBELL. person appears to be the owner, althougli not himself the true owner. But it also implies a power in the true owner to resume his rights, to resume possession of the property of which he is the owner, to take it out of the possession of the person to whom he may have entrusted it, and which therefore shows that he is the true owner, and the other person only the apparent owner. "Whereas, look at the case existing here : this is the case of a partnership which commenced some years from the time when the bankruptcy occurred. If the plaintiff, who was the joint owner of this property together with the bankrupt, and who only permitted it to be in pos- session of the bankrupt by virtue of an ordinary partnership deed, had desired at any time to prevent these goods passing into the hands of her brother, in case he became bankrupt, she had no power to do so. Nothing can be held by one person with the consent of another which the other has no power by law, from the nature of the contract, to interfere with, or take possession of. Looking to the language of this statute, it appears to me that the bankrupt held these goods in his own right ; he had been the joint owner of them together with another person for more than three years before the bankruptcy, he was carrying on business by means of those and other partnership effects, and was possessed of them under a per- fectly honest and lawful contract of partnership entirely in his own right. His possession could no more be disturbed by the person who is said to be the true owner of them than her possession could have been disturbed by him. It seems to me that the statute cannot apply to a case in which there is a joint ownership, even without a joint possession, where there is a joint ownership under a clear and bond fide contract of copartnership in which no other consent is given by the dorraant ' partner to the possession of the ostensible partner than that which results from the contract of partnership, which, therefore, clothes both of the parties with an equal and joint right of possession, and which neither party is at liberty by law to disturb." The doctrine, however, of reputed ownersbip will apply where one of two partners allows goods and chattels of his own to be used as partnership property: Ex parte Hare,' 1 Deac. 16; Ex parte Arbouin, 1 De Gex 359; Ex parte Davenport, Mont. & B. 165. But the doctrine is not applicable where there has been an abso- lute assignment to the partner in possession of the goods, because JOY V. CAMPBELL. 653 there he is the real owner (Ex parte Gurney, 13 L. J. N. S., Bank Rep. 17; and see Ex parte Wood, 1 De Gex 134; In re Brewster, 22 L. J. N. S. 6% Bank Rep.), nor where two persons being joint owners of goods and chattels, on one becoming *bankrnpt, such goods and chattels are in the possession of the other: ^ Ex parte A^'ardon, 2 M., D. & D. 694. Where the goods and chattels are vested in trustees, notice should be given to them of the assignment : Matthews v. Gabb, 15 Sim. 61 ; Ex parte Smyth, 3 M., D. & D. 687. Where a fund in the Court of Chancery is assigned, a stop order should be obtained by the assignee to take it out of the order and disposition of the assignor: Bartlett v. Bartlett, 1 De Gex & J. 127. See cases collected, 2 Lead. Cas. Eq. 734, 3d ed. But unless that which is the subject of the assignment is a share of or an interest in or a charge on a trust fund, it is not necessary to give notice to the trustee or to obtain a stop order. See Lord V. Calvin, 2 Di'ew. & Sm. 82. There the solicitor to a party in a suit assigned the costs due and to become due to him in the suit, and subsequently became insolvent ; and an order was afterwards made for the payment of the costs out of a fund in the Court, and the provisional assignee in insolvency of the solicitor claimed the costs, as against a person to whom they had been assigned as being in the order and disposition of the insolvent, upon the ground that, though notice of the assignment had been given to the solicitor for the plaintiff in the suit, no stop order had been obtained on the fund in Court. It was held by Sir R. T. Kindersley, V.-C, that it was unnecessary for the assignee to have obtained any stop order, inasmuch as at the respective times when the assignment and the insolvency took place previous to the order for the payment of the costs, the solicitor had no charge or lien on the fund in Court, and that therefore they were not in the order and disposition of the insolvent so as to pass to his assignees in insolvency. Notice to an executor of an assignment of a fund, part of his testator's estate, paid into Court, in a suit for the administration of the estate, or under the '"Trustee Relief Act," will be sufficient for that purpose without a stop order : Thompson v. Tompkins, 2 Drew. & Sm. 8. If indeed any subsequent encumbrancer gets a stop order before such notice is given, such stop order takes priority : per Kindersley, V.-C, in Thompson v. Tompkins, 2 Drew. & Sm. 20. 654 JOY V. CAMPBELL. If the right to pubh'sh a newspaper be assigned by way of mort- gage, it seems that the proper way to take it out of the reputed ownership clause would be to give notice of the assignment at the Stamp OfiSce, where the proprietorship of the newspaper is regis- tered: Ex parte Foss, 2 De Gr. & J. 230; and see 5 Jarm. Byth. 269, 3d ed. 3. What is meant by the Consent and Permission of the true Owner. — The meaning of that part of the clause referring to goods and chattels in the possession, order, or disposition of the bankrupt, *48Q1 "''^i^''^ t^® consent and permission of the *true owner, is well explained in the principal case of Joy v. Campbell {ante, p. 452), viz. that it is where a person who is not the owner to whom the chattels do-not properly belong, and who ought not to have them, is permitted by the owner, unconscientiously as the act sup- poses, to have such order and disposition. The first question which generally arises in discussing this question is, who is the true owner? It is. clear that the person who is the purchaser or even the mortgagee of goods is the true owner : Ryall V. Rowles, 1 Ves. 348; 1 Atk. 165; 2 Lead. Cas. Eq., 3d ed. The assignee of a bankrupt is the true owner of his "goods and chattels;" where therefore he permitted them to remain in the order and disposition. of the bankrupt as reputed owner, they have been held liable to be seized upon a subsequent insolvency by the as- signee of the Insolvent Debtors' Court: Butler v. Hobson, 4 Bing. N- C. 290 (88 E. C. L. R.); 5 Scott 824. See also Ex parte Jung- michael, 2 M., D. & De G. 471; Ex parte Butler, Id. 731. But in such a case, if the true owner has ho knowledge of (Tr means of knowing the bankrupt's interest, consent on his part cannot be implied. Therefore where a bankrupt, upon the occa- sion of a previous insolvency, suppressed the circumstance of his being entitled to a reversionary interest in a legacy and excluded it from his schedule, and it did not appear that, the assignee in insolvency had any knowledge of that circumstance, the latter was held by Sir W. Page Wood, 'V.-C, to be entitled notwithstand- ing his title had not been perfected by notice to the trustee, his honor being of opinion under the circumstances that there were no laches on his part (In re Rawbone's Trust, 3 K. & J. 476); but it seems that laches on the part of the assignee in insolvency JOY V. CAMPBELL. 655 would bave been equivalent to consent within the meaning of the rule: Id. Where, however, a bankrupt had agreed to pay his creditors in full, and gave bills for the amount, and the creditors executed a power of attorney to one A. B. to receive their dividends for the bankrupt's use ; the bills not being paid, it was held by the Court of Review that the creditors, and not A. B., were entitled to the divi- dends, and a second commission having issued, that the dividends were not in the reputed ownership of the bankrupt: Ex parte Smither, 3 Mont. & Ayrt. 693. A trustee having the legal right to the possession of the property, and the power of dealing with it, will be considered as the "true owner," so that his consent and permission "will be sufficient although his cestui que trusts be infants:" Ex parte Dale, Buck 365; see also Darby, v. 8mith, 8 Term Rep. 82. An able writer, however, has expressed a different opinion, observing that " whether the per- mission of a bare trustee can be said to be that of the ' true r+^oQ owner,' to the prejudice of innocent cestuis *que trust, is a question of some difficulty, but which upon principle should, it is conceived, be answered in the negative." Lewin on Trustees 278, 3d ed., and see cases there cited. A cestui que trust absolutely entitled is, it seems, the true owner, so that if he leaves the goods and chattels to which he is entitled in the possession of the trustee, they will be considered as being in his re- puted ownership : Ex parte Burbridge, 1 Deac. 181 ; 4 Deac. & Ch. 87. A true owner in order to give consent must have a capacity for doing so ; hence as infants cannot give consent, goods and chattels belonging to them in possession of a party who becomes bankrupt will not be considered in his reputed ownership: Viner v. Cadell, 3 Esq. 88. The goods of a woman married to and living as wife with a per- son who becomes bankrupt or insolvent, he having a former wife living, would not, it seems, pass to his assignees (although such goods were in his possession) if she were ignorant of the former marriage. But if she allowed him the control and management of her property after discovery of the former marriage, such property would, as is laid down in the principal case of Mace v. Cadell, pass to his 'assignees: Miller v. Demetz, 1 Mood. & Rob- 479. Assuming the real owner to have a capacity to consent, it must 656 JOY V. CAMPBELL. appear that the bankrupt had possession with such consent. Thus in Ex parte Bell, 1 De Gr. 577, some oil merchants gave a lien on oil belonging to them in the hainds of other persons- to a creditor, who, trusting to an incorrect representation of the oil merchants, delayed taking possession or giving notice of lien, and the merchants repossessed themselves of the oil, mixed it with their general stock, and became bankrupt. It was held by Sir J. L. Bruce, V.-C, that the lien was good, and that the oil was not in the order and dis- position of the bankrupts with the consent of the true owners. Upon the same principle, in Load v. Green, 15 M. & W. 216, where a person bought goods from the plaintiffs with the fraudulent intention of never paying for them, and kept them until his bank- ruptcy, it was held by the Court of Exchequer, that the goods were not in the possession, order, and disposition of the purchaser, with the consent of the true owner. "In order," said Parke, B., "to bring the case within the statute, there must be a real owner, dis- tinct from an apparent owner, and the real owner must consent to the apparent ownership as such; but in this case the plaintiffs never did consent to the apparent ownership as such; they never contem- plated "the permitting the bankrupt to obtain a credit by means of the possession and apparent ownership of property which really did not belong to him. They intended to part with the property itself, and to divest themselves altogether of all right to it; and although, ^ in consequence *of the bankrupt's fraud upon them, they -• had a right to annul the contract, and be again the real owners, that right they did nbt exercise until after the bankruptcy, and consequently at the time of the act of bankruptcy (upon which the title of the assignees depends) the bankrupt was not apparent owner, but real owner, and the statute does not apply. It is to be understood that these observations are not meant to affect that class of cases in which the real owner gives, not the possession only, but an interest to the bankrupt, as where he leaves the goods under such circumstances as that the possession will necessarily, according to the habits of society, carry with it the repute of absolute ownership. These cases proceed upon the principle that the true owner does consent to an apparent ownersliip in the bankrupt contrary to the truth, because that is the natural result of the consent which he gives. Whether or not this peculiar case would have fallen within the statute if the plaintiffs had discovered. the fraud long before the act of bank- JOY V. CAMPBELL. 657 ruptcy, and omitted, for an unreasonable time before that period, to avail themselves of the right to rescind the contract, is no ques- tion in the present case ; for the act of bankruptcy followed the sale and delivery within a short time." See Ex parte Go wan, 25 L. J. Bank. 1 ; Ex parte Geaves, Id. 53. In Smith v. Hudson, 6 B. & S. 431 (118 E. C. L. R.), T. M. Hud- son, the defendant, on the 3d of November, 1863, entered into a verbal contract with Wilden to sell him 48J quarters of barley at 35s. per quarter. The sale was by sample, and the bulk was taken, on Novem- ber 7th, by the defendant to the Swaffham Railway Station, and left there with a delivery note — " Great Eastern Railway. To the Station Master, SwaflFham Station. Receive 97 combs of barley, consigned to the order of Mr. Wilden, from T. M. Hudson, Charges." It is the custom of the trade for the buyer to compare the sample with the bulk as delivered, and if the examination is not satisfactory to strike it, i. e., either refuse to accept it, or allow it to remain the property of the vendor ; and it was in the power of Wilden to strike the corn if it had not proved according to sample. On November the 9th Wilden was adjudicated a bankrupt, and on the 11th the de- fendant gave notice to the station master not to deliver the corn to the bankrupt or to his assignees, or any other person, without his written consent, which the station master promised. At the time of the notice the bankrupt had given no order or direction respect- ing the corn, nor had he examined it to see whether the bulk corre- sponded with the sample, nor had he given any notice to the de- fendant that he accepted or declined it'. On the 1st December the assignees of Wilden claimed the corn. On the 6th the railway company on an indemnity from the defendant delivered it to him. *In an action by the assignees to recover the value of the r*492^ corn, it was held that there was no acceptance of the goods sufficient to satisfy the 7th section of the Statute of Frauds, and also that Wilden, at the time he became bankrupt, had not the corn in his possession, order, or disposition as reputed owner with the consent and permission of the true owner. " My judgment," said Blackburn, J., " rests on the ground that there was not and could not be a subsequent acceptance of the goods, and, there being noth- ing to bind the contract under the Statute of Frauds, they remained the goods of the defendant. As to the last point I entertained some doubts, but the judgment in Load v. Green, 15 M. & W. 216, 42 i58 JOY V. CAMPBELL. satisfies me that goods do not pass to the assignees as in the order md disposition of the bankrupt at the time of his bankruptcy, mless it is a case in which the true owner consents that the other Darty shall be reputed owner, not being the true owner. What the lefendant assented to do was that the bankrupt should, as soon as le had accepted the goods, have them as true owner. This was not n fraud of the bankrupt law, nor what the bankrupt law contem- plated. The defendant intended the vendee to be the true owner, and therefore there was no apparent ownership." So where goods sold to a person who afterwards becomes bankrupt are stopped in transitu, they will not come within the reputed owner- ship clause, because it refers to cases where the bankrupt , shall ■'by consent and permission of the true owner," have goods in his possession ; whereas in the case before mentioned, the bankrupt, if be has possession, is himself the true owner, under the contract of sale : Townley v. Crump, 5 N. & M. 606 (36 E. 0. L. K.) ; 4 Ad. k B. 58 (31 E. C. L. R.). Goods will not be deemed to be in the possession of a trader with the consent of the true owner, if the latter takes ey6ry possible pains to obtain possession of them. Thus in Belcher v. Bellamy, 2 Exch. B03, Hawkins, who resided in Australia, being indebted to Han- nen in the sum of 771?. 3«. 4d., the latter on the 8th of January, 1844, bond fide and for valuable consideration, assigned the debt to Winsland, and on the 22d of January joined Winsland in a lietter notifying to Hawkins the assignment, and requiring him to pay the debt to Winsland. This letter was posted on the 1st of February, 1844, in the ordinary way in which letters to New South Wales are posted, and could not have reached Australia before the 10th of Feb- ruary, on which day a fiat in bankruptcy was issued against Hannen. On the ^9th of January, 1844, Hawkins remitted by letter 60?., which was received after the fiat, and delivered ove^^o Winsland. The assignees of Hannen having sued Winsland for the amount, it was held by the Court of Exchequer that Winsland having taken every possible step to obtain possession of the debt, it could not be *4931 ^*'*^ *° *remain in the order and disposition of the bank- rupt with the consent of the true owner. " A person purchasing a chose in action," observed Rolfe, B., "is considered to leave, it in the possession of the debtor, unless he is active and gives notice ; although, if he takes every possible step to give notice, JOY V. CAMPBELL. 659 and the debt nevertheless remains in the possession of the bankrupt, it does not so remain with the consent and permission of the pur- chaser. If, as was suggested by Mr. Bramwell, he does not give notice for three months, during that period the debt remains in the order and disposition of the debtor ; but the moment he gives notice, it is otherwise ; and the fact, that many months must elapse before the notice can take effect, does not alter the case." So notice given of a previous assignment of shares in a public company before the act of bankruptcy will be sufficient to take the shares out of the reputed ownership of the assignor : Ex parte Littledale, 6 De G., M. & G. 714. Upon the same principle, in Brown v. Heathcote, 1 Atk. 160, a debtorthaving assigned to his creditor certain goods in two ships then at sea, and delivered to him the bills of lading and invoice ; and the debtor having become bankrupt, it was held by Lord Hard- wicke, C, that as everything which could show a right to thff goods had been delivered over to the creditor, the bankrupt could not be said to have the order and disposition of the goods with the consent of the true owner. See also Carruthers v. Payne, 5 Bing. 270, 277 (15 E. C. L. R.); Acraman v. Bates, 2 E. & E. 456 (102 E. C. L. R.)- 4. As to the Time at iohich Goods and Chattels must he in the Possession of the Bankrupt to come within the Clause. — In order to bring a case within the clause, the possession of the reputed owner, with the consent and permission of the true owner, must continue up "to the time he becomes bankrupt," and by that is meant the time of the committing of any act of bankruptcy capable of sup- porting the adjudication, though such act be prior to the act on which the adjudication is founded: Lyon v. Weldon, 2 Bing. 334 (9 E. 0. L. R.); 9 Moore 629; Fawcett v. Fearne, 6 Q. B. 20 (51 E. e. L. R.); Stansfield v. Cubitt, 2 De G. & J. 222; Price v. Groom, 2 Exch. 542; Ex parte Marjoribanks, 1 De Gex 466; Morris v. Cannan, 8 Jur. N. S. 653. It must however be remembered that where the true owner takes goods out of the "possession, order, or disposition of a bankrupt, after a secret act of bankruptcy, but before the date of the fiat, or the filing of the petition, the true owner may retain such goods, under the 133d section of 12 & 13 Vict. c. 106." See Ex parte 660 JOY V. CAMPBELL. Smith, In re Styan, 2 M., D. & De G. 213, 219; Pariente v. Pen- nell, 2 M. & Rob. 617 ; Ex parte Majoribanks, 1 De Gex 466 ; Young V. Hope, 2 Exch. 105; Ex parte Dobson, 2 M., D. & D. 685; Burn *4q41 '"• Carvalho, 4 Myl. & Cr. 690. In *the recent case of Gra- ^ ham V. Furber, 14 C. B. 155 (78 E. C. L. R.), Maule, J., made the following important observations on the construction of this section : " It seems to me that the goods in this case, not being in the possession, order, or disposition of the bankrupt at the time of the filing of the petition, and the true owner not having notice of any act of bankruptcy, they are remitted to the situation they would have been in before the act, if they had ceased to be in the possession of the bankrupt before an act of bankruptcy. It was thought, and justly thought, to be hard against the true owner of goods, where he had lond fide allowed the trader to have the pos- session, order, or disposition of them, that they should be taken away 'from him, and disposed of for the benefit of the "creditors, merely because he had not been churlishly strict in not allowing anybody to use the goods but himself. It was the intention of the legislature, by this statute, to relieve such a person, and to place him in as good a position where he got back his goods before notice of an act of bankruptcy, as if he got them back before the commis- sion of an act of bankruptcy. When he got his goods back, they were taken to have been got back before an act of bankruptcy, if got back without notice of an act of bankruptcy. The words of the 133d section, 'All contracts, dealings, and transactions by and with any bankrupt really and bond fide made and entered into before the date of the fiat or the filing of such petition,' are suflScient for this purpose. It is a ' transaction ' between the bankrupt and the true owner of the goods, when the latter resumes possession of them. This construction of the act makes the law simple and clear, and in conformity with the rule as to all other transactions." See also Re Atkinson, Fonb. Bank Rep. 246. Where, however, a prisoner for debt is adjudicated bankrupt under the 98th and 99th sections of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), as the adjudication by section 103 of the same Act is to have relation back to the commitment absolutdy, and not merely as an act of bankruptcy, a bond fide dealing with the bank- rupt after his commitment is void, and cannot be protected by section 133 of the Bankruptcy Act, 1849. See Bramwell v. Eg- JOY V. CAMPBELL. 661 linton, 1 Law Rep. Q. B. 494. There goods were assigned by one Service to the defendant, but Service remained in possession of them up to his arrest under a ca. sa., and after his commitment to gaol the defendant took possession of the goods, and Service was • afterwards adjudged a bankrupt on his own petition in formd pau- peris under sections 98 and 99 of the Bankruptcy Act, 1861. It was held by the Exchequer Chamber, affirming the decision of the Court of Queen's Bench, that the goods passed to Service's assignee under section 125 of the Bankruptcy Act, 1849, as in his order and disposition with the *eonsent of the true owner, and that the defendant could not avail himself of the protection of t***^^ section 133 of the same Act. And even if before the date of the fiat, and before notice of an act of bankruptcy, the true owner has bond fide demanded posses- sion of the goods, and communicating with the bankrupt, has done that which would show that the goods did not longer, with his con- sent and permission, remain in the possession, order, and disposition of the bankrupt, the title of the true owner would not be defeated by a prior secret act of bankruptcy: 5 E. & B. 237 (85 E. C. L. R.) ; and, see Tatham v. Andree, 1 Moo. P. C. C. (N. S.) 386, 407. But a mere intention to demand the goods and to get possession of them will not amount to a "dealing" or "transaction" within the meaning of the 133d section of the Bankrupt Act, so asio take the goods out of the operation of the reputed ownership clause : Brewin V. Short, 5 E. & B. 227, 238 (85 E. 0. L. R.). And even after a seizure and attempted sale of the goods, if they are afterwards allowed to remain in the possession of the mortgagor, they will not be considered as having been taken out of his reputed ownership. See Reynolds v. Hall, 4 Hurlst. & N. 519. There a trader executed a bill of sale of his stock-in-trade and all other his effects to the defendant an auctioneer. On the 17th of June, in pur- suance of an arrangement between the parties, the defendant came on the premises of the trader and attempted to sell the goods ; but there were no buyers, and nothing was sold. The defendant then left the premises, and the trader remained there, and continued to carry on the business till the 22d, when he committed an act of bankruptcy. The sale had been advertised, but it did not appear that the goods were advertised to be sold as the goods of the de- fendant. It was held by the Court of Exchequer that, notwith- 662 JOY V. CAMPBELL. standing the attempted sale, the goods were in the possession of the bankrupt as reputed owner with the consent of the true owner at the time of the bankruptcy. ■ The assignee for value of a chose in action neglecting to give notice of the assignment thereof before the bankruptcy, so that it remains in the order and disposition of the bankrupt, will not gain any priority over the assignees in bankruptcy by giving notice of the assignment before the assignees give notice of the bankruptcy or obtain an order for a sale. See Re "Webb's Policy, 15 W. R. (V.-O. M.); there "Webb had insured his life, mortgaged the policy, ' and became bankrupt, but never entered the policy in his statement of accounts,, and paid the premiums and received the bonuses. Shortly after his death the mortgagee gave notice to the insurance office of' the assignment, but the assignee in bankruptcy gave no *J.Qfi1 ^°^^^^ *° ^^^ office of the bankruptcy, and *the Commissioner in Bankruptcy ordered a sale of the policy; the office paid the proceeds into Court under the Trustee Act. It was held by Sir R. Malins, V.-C, that the assignee in bankruptcy was entitled thereto. And see Re Mary Coombe, 1 Giff. 91, and cases cited 2 L. C. Bq. 728. 5. Exceptions from the- Operation of the Reputed Ownership Clause. — Where a person has possession of property in auter droit, as executor or administrator, or as husband of an executrix or ad- ministratrix, the reputed ownership clause will not be applicable: Ludlow V. Browning, 11 Mod. 138; Ex parte Marsh, 1 Atk. 158; Ex parte Ellis, Id. 101; Viner v. Cadell, 3 Bsp. 88. "If," says Lord Mansfield, "an executor becomes bankrupt, the commissioners cannot seize the specific efiects of his testator; not even in money, which specifically can be distinguished and ascertained to belong to such testator, and not to the bankrupt himself:" Howards. Jemmet, 8 Burr. 1369 ; see also Farr v. Newman, 4 Term Rep. 648 ; Serle V. Bradshaw, 2 C. & M. 148 ; 4 Tyrwh. 69. "Where, however, a person keeps possession of the property of a deceased person, as executor de son tort, with the consent of a person who might have taken out administration, upon the bankruptcy of the former, such- property will pass to his assignees. Thus, in Fox V. Fisher, 3 B. & Aid. 135 (5 E. C.'L. R.), Mary Fish, an inn- ■keeper, died intestate in 1807, and her son took possession of the JOY V. CAMPBELL. 663 inn and furniture, and carried on the business until 1819, when he became bankrupt, and the defendants, as bis assignees, took the goods and sold them. The son never took out letters of adminis- tration to his mother. After the bankruptcy, a creditor of Mary Fish took out letters of administration to her, and in an action of trover claimed the goods from the assignees. It was held, however, that the assignees were entitled to them. "Here," said Abbott, 0. J., "the son was entitled to take out letters of ad- ministration to his mother, and if he had done so, he would have vested in himself a complete legal right. Now, a creditor of the mother might either have brought an action against him as executor de son tort, or might have cited him before the Ecclesiastical Court, to show cause why the creditor, and not the son, should be consti- tuted administrator. Neither of these things was done, and the son continued in possession of these goods for nearly twelve years. I think, therefore, that these goods were clearly within 21 Jac. I. c. 19, as being, with the consent of the true owner, in the possession, order and disposition of the bankrupt. The case of Fairclaim d. Allen V. Little (C. P. H. 58 Geo, III., cited 3 B. & Aid. 136 (5 E. C. L. R.)) is distinguishable, because -there the person in possession was not entitled to take out letters of administration ; but here the bankrupt was so entitled." See also. Ray ?^. Ray, Sir G. Coop. 264 ; In re Thomas, 8 M., D. & De G. 40 ; 1 Ph. 159, overruling s. c. 2 *M., D. & De G. 294 ; White v. Mullett, 6 Exch. ^^^g^ 713 ; Ex parte Moore, 2 M., D. & De G. 616, and post 498. Where a person at the time of his bankruptcy is in possession of goods and chattels as trustee, inasmuch as the possession is accord- ing to the ownership, the case will not fall within the reputed owner- ship clause ; for in order to do so, there must be possession of a person not the owner, with the consent of another person, the true owner. This is well explained in the principal case of Joy v. Campbell; there, it will be observed, Thomas Brown held shares in a trading company in trust for his brother William, who, by his will, after giving certain legacies, bequeathed the residue to his brother Thomas, who continued in possession of the shares and acted as ex- ecutor. Thomas afterwards became bankrupt. It was held by Lord Redesdale, that the shares were not within the reputed ownership clause, inasmuch as Thomas was himself "the true owner and pro- prietor thereof," subject, however, to the debts and legacies of 664 JOY V. CAMPBELL. William. In the case of In re Bankhead, 2 Kay & J. 560, a sole trustee who had appropriated 4000Z., part of the trust property de- posited in the box in which he kept the trust deed and the securities for other portions of the trust funds, two policies of assurance, one on his own life for 2000Z., the other on the life of his father for 3000?., enclosing them in an envlope with a memorandum, that in the event of his, the trustee's death, the amount of the enclosed policies was to be applied to the payment of 4000^ borrowed by him of the, cestui que trust. Six years afterwards, the trustee be- came bankrupt. The policy for 2000Z. was found by the oflScer of the Court of Bankruptcy enclosed with the memorandum in the box, the other policy having been paid to the bankrupt upon his father's death. It was held by Sir W. Page Wood, V.-C, that as between the cestui que trust and the assignees in bankruptcy : — First, that notwithstanding the words importing contingency, the memorandum was a valid declaration that the policy was, in any event, subject to the trusts of the settlement. And, secondly, that there being a valid declaration of trust by the sole trustee, he was the proper person to be in possession of the policy, in other words, "the true owner" within the meaning of 12 & 13 Vict. c. 106, and he being also in the reputed possession of the property when the bankruptcy took place, there was no separation of interests — the true owner and reputed owner were the same person, and the 125th section of the Act did not apply. See also Sinclair v. Wilson, 20 Beav. 324; Ex parte Graves In theStraham, 8 De G., M. & G. 291; Stapleton V. Haymen, 2 Hurlst. & C. 918. If a trustee were to blend trust funds with his own, and to sell out part of the funds, it would be presumed that those remaining unsold belonged to .the trusts, and were not in the order and dispo- *4981 ®'*'°'^ ^^ *^^^ trustee at the time of his bankruptcy. "If," says Wigram, V.-C, "20,000Z. consols were standing in the name of a party who was trustee of one moiety and beneficial owner of the other moiety, and that party were to sell and transfer 10,000?. of the stock, it cannot, I think, be doubted for a moment, that a court of equity would, as against the trustee and his assignees in bankruptcy, hold that the 10,000Z. transferred was the property of the bankrupt, and that the remaining 10,000?. was not the property or in order and disposition of the bankrupt, but was subject to the trust:" Pinkett v. Wright, 2 Hare 129. JOY V. CAMPBELL. 665 Where, however, goods and chattels are in the possession of a trustee contrary to the title, they will not be considered as trust property. See Ex parte Moore, 2 M., D. & D. 616 ; there resid- uary estate was bequeathed to the testator's widow and two other trustees (also the executors and executrix of the will), upon trust to be converted with all possible speed into money, to be laid out in the purchase of an annuity for the lives of the widow and children ; and the trustees were directed to pay the annuity to the wife, for the sole use and benefit of the children. After the testator's death the widow was permitted by the acting trustee to retain possession of furniture, part of the residuary estate, and eight years after the testator's death she married again, and took the furniture to the husband's house, where the testator's children resided with her, and after six years more the second husband became bankrupt. It was held by the Court of Review in Bankruptcy that the trustees could not claim the furniture from the assignees. "I think," said Sir J. Cross, " that this trust was never considered as having any existence before the bankruptcy occurred, which was fourteen years after the property was given to the widow to be converted into money as soon as possible. I consider it as property which she thus appropriated to herself and made her own. She was responsible to the children for her administration of the estate, and of course did not get rid of that responsibility by her conversion of the property to her own use. But I am of opinion, that the property, as regards the world at large, had long since ceased to be the property of the testator. The case of Quick v. Staines, 1 Bos. & Pul. 293, is decisive of the ques- tion ; there, exactly as occurred in this case, the executrix used the goods of the testator as her own, and afterwards married, and then used the goods as those of herself and her husband, and it was de- cided, that they might be taken in an execution against the husband. Therefore by the general law, independently of the Bankrupt Act, the point is settled against the petitioners." And where a person holds goods and chattels upon a secret trust for another, who is the absolute owner of them, the exception in favor of trust property will not *apply. See Ex parte Bur- rieAan bridge, 1 Deac. 131. There it appeared by a special case that by the rules of an insurance company no person except a di- rector was permitted to hold more than two shares in his own name. A proprietor who was already the holder of two shares, having pur- 666 JOY V. CAMPBP]LL. chased two others, caused them to be entered in the name of the bankrupt in the company's books, with the knowledge of one of the directors and the actuary. The bankrupt signed a declaration of trust, that he held the shares as trustee for the proprietor, but no notice of the trust was taken in the books of the company, and the bankrupt held the certificates of the shares, and continued to receive lithe dividends thereon, accounting for them from time to time to the proprietor, up to the period of his bankruptcy, when the shares were still standing in his name, during all which time he was treated as owner by the company, had notice of meetings served upon him, attended meetings of the shareholders, and voted as a shareholder. It was held by the Lords Commissioners, reversing the decision of the Court of Keview (reported 4 Deac. & Ch. 97), that the shares were in the order and disposition of the bankrupt as reputed owner. " There was," said Lord Commissioner Shadwell, "no open or hon- est purpose, like the payment of debts," to be answered by this trusteeship, as in Copeland v. Gallant, 1 P. Wms. 314, nor was there any trust for the benefit of third persons, or created by third persons, as in Ex parte Martin, 2 Rose 331 ; 19 Ves. 491, and Ex parte Horwood, 1 Mont. & M. 169. But the trust was created by the proprietor of the shares for his own sole benefit, and for no other purpose, than that of enabling him to hold more shares than he was allowed by the regulations of the company to-hold in his own name. No convenience to society is promoted by such a trust, and great injury to the public may be occasioned by the delusive credit which it confers. It does not appear t'o us, that the private knowledge which one of the directors and the actuary had of the transaction, could operate as notice of this secret trust to the company, who in fact treated the bankrupt as owner. For anything that appears to the contrary, the dividends were received by the bankrupt. And the shares might have been sold by him, without the intervention of the directors or the actuary. We are of opinion that such a secret trust is not within the meaning of the reputed ownership clause in the Bankrupt Act, but it is to be considered as a case of property left in the possession, order, and disposition of the bank- rupt, with the consent of the true owner, thereby inducing a reputa- tion of ownership within the meaning of that act." Another .exception, as is laid down in the principal case of Mace V. Cadeil, is where a person holds goods as a factor. Thus in the JOT V. CAMPBELL. 667 recent case of Whitfield v. Brand, 16' M. & W. 282, the author *of a book deposited with a bookseller 1500 copies of it to r^rnn be sold by commission. The bookseller became bankrupt. It was held by the Court of Exchequer that the unsold copies did not pass to the assignees. " It is," said Parke, B., " notoriously the practice of booksellers to sell books received by them to be sold on commission. That would rebut the inference that the defendant held these particular goods as owner. But had there been no such evidence, I should not think that these books passed to the assignee, as it is well known that booksellers act also in the capacity of fac- tors. It appears to me that in this case the bankrupt received the deposit of the books in question, not as owner but as factor, and as such he had possession, but with authority to sell, and that is enough to take it out of the statute. It was said, that as he was not shown by the plaintiff to have been known to the world to be such factor, the books would pass to his assignees in respect of his reputed ownership ; but that is not so ; for if booksellers sometimes act as factors, and it is part of their business to sell books of which they are not the owners, no one had a right to presume those books to be his own without inquiring how the case really stood. Besides, as to the necessity of notoriety, there was enough evidence here to show that all persons interested were put upon inquiring whether the bankrupt held the books as factor or owner. The question of reputed ownership does not arise on these facts. In a very early case on the bankrupt laws, Mace-'W. Cadell, Cowp. 232, it was held that the stat. 21 Jac. I. c. 19, s. 11, did not extend to the case of factors who have the possession of other men's goods merely as trustees, or under a bare authority to sell for the use of their prin- cipal. The goods must be such as the party suffers the trader to sell as his own :" Re Kullberg, 12 W. R. (Bk.) 137. And if goods sent to a factor's be sold and reduced into money, if the money be in separate bags and distinguishable from the factor's other property, the principal may recover it in specie, and is not driven to the necessity of proving his debt in bankrupty : per Lord Kenyon, C. J., in Tooke v. HoUingworth, 6 Term Rep. 227. Where a. bankrupt is in possession of the goods of another bond fide with the consent of the owner at the time of the bankruptcy, for a specific purpose, beyond which he has not the right o.f disposition o;- alteration, that is not such a possession as comes within the 668 JOY V. CAMPBELL. meaning of the reputed ownershij) clause. See Collins v. Forbes, 3 Term Rep. 316. There Kent by arrangement with Forbes and Co. being about to enter into a contract to erect a stage for- rolling bar- rels on board shipping for the Victualling-office, Forbes and Co. agreed that upon his doing so, Kent was to have one-fourth of the clear profits of the contract, and a guinea a week for his super- ^tendence of the work, and Forbes and Co. were to supply *'iOn **^^ timber and to have the residue of the profits. Kent accordingly entered into the contract with the commissioners, and Forbes and Co. shipped the timber in their own name to the yard, where it was delivered as for Kent's use, and received by the king's officers as such, and they swore that they would not have received it on account of any other person ; but that they would . not have permitted even Kent to dispose of it in any other manner than for the work contracted for, except such parts of it as were found unfit for the intended purpose, because they considered it as delivered for the purpose of the contract. , Before the work was finished, Kent became a bankrupt, on which Forbes and Co. got possession of the timber. It was held that the assignees of Kent were not entitled to recover the timber under 21 Jac. I. c. 19. "In the present case," said Ashurst, J., "there never was any sale of the timber to Kent, nor any general delivery, so as to give Mm the absolute disposition of it; for it appeared in evidence that the store-keepers in the yard would not have permitted even Kent to have sold the timber to any other person, unless any part of it had been unfit to be used in performing the contract, as they considered that it was delivered only for the purpose of the contract. There- fore there could be no danger that Kent's creditors would be in- duced to trust him on the credit of that property, or as supposing it liable to their debts. The possession which he had (as it appeared by the facts in the case) is somewhat similar to that of a carpenter, who receives timber to convert into a wagon, or of a tailor, to whom cloth is sent for the purpose of being worked up. And it is a very different case from that of a person making a sale of any part of his property, and yet continuing in possession and taking upon him the disposition of it with the consent of the vendee ; for in such • case, as the property was originally his, and there never was any visible alteration in it, it is a snare' to induce persons to give him credit, to which the vendee, by his neglect to obtain the JOY V. CAMPBELL.- 669 possession, lends his assistance, as he concurs in giving a false ap- pearance to the transaction. But in the present case, this timber came in.to Kent's possession in the natural course of the transaction, in which there was no fraud either actual or constructive, for it appeared by the evidence that the timber was originally sold to the defendants on their own account, and that the vendor did not know that the'bankrupt had any concern in the transactions." See also^ Rex V. Egginton, 1 Term Rep. 370; Ex parte Carlon, 4 Deac. & Ch. 120; Clarke v. Spence, 4 Ad. & E. 448 (31 E. C. L. R.). See also and consider Ex parte Batten, 3 Peac. & Ch. 328 ; Newport v. Hollings, 3 C. & P. 223 (14 E. C. L. R.). Upon the same principle checks (Moore v. Barthrop, 1 B. & C. 5 (8 E. C. L. R.)), bills of exchange, or promissory notes (Belcher v. Campbell, 8 Q. B. 1 (55 E. C. L. R.); Buchanan v. Findlay, 9 'B. & C. *738 (17 E. C. L. R.); 4 M. & R. 693; Bruce v. Surly, 1 Stark. 23 (2 E. C. L. R.); and see Took v. Hoi- 1^*^^^ lingworth, 6 Term Rep. 215), placed in the hands of a person for a specific purpose, will not be considered as being within his reputed ownership. It has been already stated that bills of exchange are considered "goods and chattels" within the meaning of the reputed ownership clause ; it is important to consider when, on being deposited by the owner with another, they fall within its operation. In the first place it is clear that where bills are remitted to an agent, as a factor or banker, and entered short while unpaid, and bills paid in generally to be received, and not to be discounted or treated as cash, are not affected by the bankruptcy of the factor or banker, the property in them "is not altered, and the bills, or the proceeds thereof, if received by the assignees, must be returned to the prin- cipal, subject to such lien as the factor or banker may have upon them: Zinck v. Walker, 2 Sir W. Black. Rep. 1154; Brown v. Kewley, 2 B. & P. 518; Tock v. Hollingworth, 5 Term Rep. 215; Bent V. Puller, Id. 494; Parke v. Eliason, 1 East 544, 550; Ex parte Waring, 19 Ves. 345; Buchanan v. Findlay, 9 B. & C. 738 (17 E. C. L. R.); Ex parte Pauli, 3 Deac. 169. Where bills are delivered to a banker expressly for the purpose of their being discounted, or if in the course of dealing between the customer and banker, bills received by the latter are regarded by both parties as cash, minus the discount, and the customer is at 670 -JOY V. CAMPBELL. liberty to draw on account thereof, beyond the amount of cash in the hands of the banker, then in the event of the bankruptcy of the banker, the assignees will be entitled to the bills : Carstairs v. Bates, 3 Campb. 301; Ex parte Rowton, 17 Ves. 426, 431; 1 Rose 15; Ex parte SoUers, 18 Ves. 229; Ex parte Thompson, 1 Mont. & M. 102. So likewise in Hornblower v. Proud, 2 B.- & Aid. 327, a person having three bills of exchange, applied to a country banker with whom he had no previous dealings, to give for them a bill on London of the same amount, and the bill given by the banker was afterwards dishonored. It was held by the Court of King's Bench that this was a complete exchange of securities, and that trover would not lie for the three bills of exchange. It was also held that if the exchange had not been complete, still that the banker having .become bankrupt, and the three bills having come to the possession of his assignees, must be considered as goods and chattels in the order and disposition of the bankrupt at the time of his bankruptcy. In order to change the property in bills so deposited by a cus- tomer with his banker, a contract must be shown between the banker and customer, by which the property in the bills- is to be changed, as, for instance, a contract by the bankers to buy or discount the bills: Thompson v. Giles, 2 B. & C. 428, 432 (9 E. C. L. R.). And a contract of this nature which cannot be considered as beneficial *5031 *° *^® customer ought not to be *presumed without strong evidence: Id. 430. Where, for instance, bills are not entered as cash, but as bills, although the amount is carried by the banker into the cash column, it does not follow that the customer assented to their being considered as cash. It is only an undertaking on the part of the banker to answer drafts in advance to the amount of the bills so entered : Thompson v. Giles, 2 B. & C. 422, 429 (9 E. C. L. R.). There a customer was in the habit of endorsing and paiying into his bankers' hands bills not due, which, if approved, were im- mediately entered (as bills) to his credit, to the full amount, and he was then at liberty to draw for that amount by check on the bank. The customer was charged with interest upon all cash payments to him from the time when made, and upon all payments by bills from the time when they were due and paid : and had credit for interest upon cash paid into the bank from the time of the payment," and upon bills paid in from the time when the amount of them was re- ceived. The bankers paid away such bills to their customers as they JOY V. CAMPBELL. 671 thought fit. The bankers having become bankrupt, it was held by the Court of King's Bench that 'the customer might maintain trover against theif assignees for bills paid in by him, and remaining in specie in their hands, the cash balance, independently of the bills, being in favor of the customer. " It has been argued for the de- fendants," said.Bayley, J., "that we must infer an agreement to have been made between the banlcer and his customer, that as soon as bills reached the hands of the former, the property should be changed. Undoubtedly, if there were any such bargain, the de- fendants would be entitled to our judgment ; but if there be no such bargain, then the case of customer and banker resembles that of principal and factor, and the bills remaining in specie in the bank- er's hands will, notwithstanding the bankruptcy, continue the pro- perty of the customer. ... It appears that the bills were not entered as cash, but as bills, and although the amount was carried into the cash column, it does not follow that the customei' assented to their being considered as cash. See also Ex parte Armitstead, 2 G. & J. 371 ; Ex parte Barkworth, 1 De G. & J. (Bk.) 140. The same principle was acted upon by Lord Cottenham in the important case of Jombart v. WooUett, 2 Myl. & Cr. 389 : there a merchant abroad sent drafts from time to time to his London cor- respondent for acceptance under an authority for that purpose, and upon an understanding that the liabilities of the latter in respect of all such acceptances should be covered by means of bills payable in London to be remitted to him from time to time. It was held by Lord Cottenham, C, that under such an arrangement, the pre- sumption was, until an agreement to the contrary was shown, that the London correspondent was not intended or entitled to treat the bills so remitted as cash, or to discount them before maturity ; and therefore that two *of such bills, which were existing in pgQ^ specie in his hands at the time of his bankruptcy, and were not then due, did not pass to his assignees, but were the property of the party who remitted them. "Unless," said his lordship, " there be a contract to the contrary, if a person, having an agent elsewhere, remits to him, for a particular purpose, bills not due, and that purpose is not answered, and then the agent carries them to account, and becomes bankrupt, the property in bills is not altered, but remains in the party making the remittance. That of course may be regulated by usage, but primd facie, without special con- 672 JOY V. CAMPBELL. tract, 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." See also Ex parte Smith, Buck 365 ; Ex parte Pease, 19 Ves. 25; 1 Rose 232; Ex parte Frere, 1 Mont. & Mac. 263; Ex parte "Brown, 3 Mont. & A. 471; 3 Deac. 91 ; Ex.paj:te Cotterill, 3 Mont. & A. 376 ; 3 Deac. 12. And even where bills are entered as cash, the assent of the customer to their being so considered must be proved, and the onus of proving it lies upon the banker. Ex parte Sergeant, 1 Rose 163 ; Thompson v. Giles, 2 B. & C. 430 (9 E. C. L. R.). 6. The power given to the Oourt over Goods and Chattels coming within the reputed Ownership Clause.-^The goods which at the time of the bankruptcy were in the possession, order, or disposition of the bankrupt, with the consent of the true owner, do not pass by the adjudication, and in order to enable the assignees of a bankrupt to deal with them, an order must be made by the Commissioner, directing the assignees to sell them : Heslop v. Baker, 6 Exch. 740 ; Barrow v. Bell, 6 E. & B. 640 (85 E. C. L. R.). The order to sell should be made upon an ex parte application by the assignees supported hj primd facie evidence (Ex parte Bar- low, 2 De G., M. & G-. 921 ; Ex parte Wood, 4 Id. 861 ; Ex parte Young, Id. 864 ; Ex parte Lucas, Re Gwyer, 3 De G. & J. 113). It may be made retrospectively (Ex parte Heslop, 1 De G., M. & G. 477), and, it seems, cannot be appealed against by the true owner : Mather v. Lay, 2 J. & H. 374. The order for sale must be specifically directed to the particular goods which the assignees are thereby authorized to sell and dispose of, for it has been decided that a mere general order for.the sale of all goods which were in the possession, order, or dispositioij of the bankrupt with the consent of the true owner, does not satisfy the requirements of the statute : Quartermaine v. Bittleston, 13 C. B. 133 (76 E. 0. L. R.) ; for as Jervis, C. J., well observes there, p. 158, "inasmuch as the goods to be taken under the authority of the order are confessedly the goods of a third person, it is not unfair that there should be some preliminary inquiry before the Commis- ^ . „ sioner, and something *like a primd facie case made out, J before the true owner is to be called upon to litigate his rights." JOY V. CAMPBELL. 673 But it is sufficient if the order specifies without going into detail the "goods in or about such a house:" Fielding v. Lee, 18 C. B. N. S. 449 (86 E. C. L. K.). An order under the 125th section of 12 & 13 Vict. c. 106, is sufficient, if it specifies to goods ordered to be sold, -without refer- ring by name to the persons supposed to be the true owners of such goods : Freshney v. Carrick, 1 Hurlst. & N. 653 ; Fielding v. Lee, 18 C. B. N. S. 449 (86 E. C. L. R.). The order for sale, when made, relates back to the act of bank- ruptcy (see Heslop v. Baker, 6 Exch. 740; 8 Exch. 411), and it may be made even after a sale of goods by the assignees. Thus in Ex parte Heslop, 1 DeG., M. & G. 477, a mortgagee of goods under a bill of sale allowed the goods to remain in the order and disposition of the mortgagor, until the latter committed an act of bankruptcy, but took possession before any petition of adjudication was filed. On the mortgagor being found bankrupt, the messenger took the goods out of the mortgagee's possession, and sold them. The mort- gagee brought an action of trover and recovered, on the ground that under the Bankrupt Law Consolidation Act, 1849, the assignees could not sell, without an express order of the Commissioner, goods in the reputed ownership of a bankrupt. The assignees applied to the Commissioner, who made an order retrospectively confirming the sale, and reciting, as a fact, that the goods were in the order and disposition of the bankrupt, at the time of the bankruptcy, with the consent of the true owner. It was held by the Lords Justices of the Court of Appeal in Chancery, that the mortgagee was not entitled to have the order discharged on his appeal, as being invalid upon the face of it; and on the appellant declining to enter into the ques- tion whether he had notice of the act of bankruptcy, when he took possession, his appeal was dismissed with costs. The order for sale however, as it may be made upon an ex parte application, is not final and binding upon the true owner, who had no opportunity of being heard against it; he may still try the ques- tion of reputed ownership at law, through the intervention of a iury Graham v. Furber, 14 C. B. 134 (73 E. C. L. R.) ; Ex parte Carrick, 4 De G., M. & G. 861. The Court of Chancery has jurisdiction to restrain a sale ordered by the Court of Bankruptcy, and to determine the rights of the parties : Mather v. Lay, 2 J. & A. 375: and an application by the 43 674 JOY V. CAMPBELL. true owner to the Court of Bankruptcy for a stay of proceedings is no bar to a subsequent bill for an injunction to stay a sale: Id., and see Ex parte Lucas, 3 De G. & J. 113; Ex parte Wood, 4 De Q., M. & G. 861, The effect of the law of reputed ownership is not a forfeiture of the property. In Bryson v. Wylie, 1 *Bos. & Pul. 83 n., J "Bryson was a creditor of the bankrupt for so much, and his taking that species of security did not avoid his demand for the debt. If a man were to purchase goods and pay for them, and permitted them to remain in the hands of the seller, who became bankrupt, he would be a creditor to the amount of the money he paid for the pur- chase." Per Lord Eedesdale, in Joy v. Campbell, 1 Sch. & Lef. 337; anteTp. 454. 7. Whether the reputed Ownership Clause applies to Deeds regis- tered under the 192d section of the Bankrupt Act, I861.^-As the 197th section of the Bankruptcy Act, 18S1,. gives to trustees of a deed under the 192d section the benefit of all the provisions of the Act (which by the 232 section is to be construed with the unrepealed portion of the Act of 1849, as one Act), in like manner as if the debtor had been adjudged bankrupt, and the trustees had been ap- pointed assignees, and as the Court of Bankruptcy has power to make and enforce all such orders as it might do if the debtor had been adjudged bankrupt, and his estate had been administered in bankruptcy, it would seem that the trustees of a deed in the statu- tory form, or of any other deed amounting to a cessio bonorum, and satisfying the conditions of the 192d section, may obtain from the Court of Bankruptcy an order for the sale Etnd .disposition of pro- perty of third persons in the debtor's order and disposition, with the consent of the true owner. De Gex and Smith on Debtors' and Creditors' Deeds, p. 85. There is no provision in the Bankrupt Laws of the United States (Act of Congress, March 2, 1867, 14 Statutes at Large 517) which corresponds with the enactments of the English statutes, discussed in the foregoing note. It has, however, been decided that the rights of action of an as- signee are not limited to those of the bankrupt. He may maintain an action to recover any property which might have been reached by the bankrupt's 'creditors, if he had not become a bankrupt: Shackleford v. Collier, 6 Bush (Ky.) 149. / i