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one creditor would be allowed to receive more than the jest. But this unequal distribution depended on the decision of a court of competent jurisdiction abroad,

(Before Sir Edward Ryan, and Sir J. P. Grant). Their Lordships gave judgment this day in the fol-judging in conformity with the laws which prevailed lowing cases which stood over.

CorKERELL AND OTHERS ASSIGNEES OF PALMER AND
Co. versus THEODORE DICKENS AND OTHERS.
Sir E. Ryan said, that this was a demurrer to a bill in
equity, and was argued before his Lordship sitting alone
in the 4th term of last year. The court now allowed

the demurrer.

there, and it was impossible for the Supreme Court of Calcutta to remedy the inequality. The case must be admitted to be one of doubt and difficulty, but the court had come to the conclusion that the complainants had shown no ground for relief. The demurrer therefore must be allowed and the bill dismissed.

Bill dismissed accordingly.

The Chief Justice intimated, however, that each party must pay their own costs, because the case was undoubtedly one of sufficient difficulty to justify the complainants in taking the opinion of the court. Mr. Prinsep and Mr. Leith for the complainants. The Advocate-General and Mr. Grant for the de<murrer.

IN THE MATTER OF DAVID FAIRLIE CLARKE AND
OTHERS,

OUSELY AND MACNAGHTEN ASSIGNERS OF FERGUSSON
AND Co. versus GRIGSON AND OTHERS, ASSIGNEES.
The report of the argument in this case may be found
in the Hurkaru of the 29th January last.

The learned Chief Justice here went over the facts stated in the bill at great length; they are shortly as follow:-An Armenian merchant, deceased, resident in Batavia, was a creditor of a large amount of the firm of Palmer and Co. His interests are represented by the present defendants, the Registrar of the Supreme Court being the administrator in this country with the will annexed, and the other defendants being parties benefi cially entitled under the will. Upon the insolvency of Palmer's firm the registrar of the Supreme Court as administrator cum testamento annevo, proved the debt due to the deceased creditor from the firm, and obtained About the same payment of the rateable dividends. period, however, a certain public body in Batavia, called the Orphan Chamber, who had been appointed by the will to act as executors and trustees for the deceased Sir Edward Ryan, This is a petition of appeal from creditor in that country, instituled a suit in the courts of Batavia against certain property (a plantation) in a decision in the Insolvent Court, of our lamented which the firm of Palmer and Co. was interested. This colleague, Sir Benjamin H. Malkin. I should have suit being decreed in their favour, the property in ques- gone fully into my reasons, if I had seen any ground tion was ordered to be sold, and the proceeds directed to to differ from the judgment appealed from, but on the be paid over to the Chamber as executors and trustees fullest consideration of the circumstances, I am clearly for the deceased creditor. The whole amount thus re- of opinion that the learned Judge decided correctly. ceived by the estate of this creditor of Palmer and Co., The circumstance that the house was insolvent at the greatly exceeded the dividend received by the other creditors. Accordingly the present suit was instituted by the assignees of Palmer and Co., to compel the defendants (as being the only representatives of the party, who were subject to the jurisdiction of the Supreme Court of Calcutta) to refund the dividends which were paid over to them in ignorance of the proceedings instituted in Batavia, so as to make the amount received altogether by the state of this particular creditor not more than equal to the dividend paid to the other creditors.

and with costs.

period when the retiring partner quitted it, is not sufficient, the transaction, it otherwise bona fide. The whole question turns on the existence or non-existence of fraud; ex-parte Meake in the 1st vol. of Maddock's Reports, governs the present case; it was there held that knowledge of the insolvency alone, without other circumstances to evidence fraud, was not sufficient. The decision which I formerly gave in the ease arising from the insolvency of Palmer and Co. and the decision of Mr. Justice Grant in the case of Mackintosh and Co. in the Insolvent Court, are both distinguishable from the preThe learned Chief Justice stated, that no authority precisely in point had been cited by the coun-sent. There the transactions were effected by fraud. sel who argued the case at the bar, although the ques-In the present instance, looking at the whole of the evition had been argued with great acuteness and ability. dence, I am of opinion that the arrangement was fairly Hunter v. Potts, 4th Term Reports, and Phillips v. and honestly made. The order must be discharged, Hunter, 2d Henry Blackstone, had been cited but there was no analogy between those cases and the present. The principle there laid down was that personal property passes under the assignment, wheresoever situated, and it had been contended that this property therefore in Batavia passed to the assignees, and that the creditor or his representatives must either bring it into hotchpotch, or relinquish their claim against the general dividends. But the property in the case before the court was not personal property; for a foreign court of competent jurisdiction had decided the contrary. The assignees had there set up their title, which the court abroad refused to acknowledge. Now, it had been laid down by Lord Loughborough that the law of bankruptcy will not interfere with the law of other countries with respect to property situate there. This subject had been well considered in Chief Justice Story's Commentaries on the conflict of Laws. p. 345. It was true that the Bankrupt Law, professed to be founded on justice and equality, and it was equally undeniable that this prin

Sir J. P. Grant.-The present appeal has made it necessary for me to re-consider the decision which I pronounced when sitting alone in the Insolvent Court, in the case relating to Mackintosh and Co. I have not changed the opinion I then formed, and if the circumstances of the present case had been the same, I should have given a similar decision. But all these cases must depend on their own peculiar circumstances; and fraud, which existed in that case and which was expressed to be the ground of that decision, is absent here. There is no reason to doubt that the statement of their accounts as set forth by the partners at the time of the retirement, was not made in good faith. Although there was a deficiency of assets, they might reasonably sup pose that this would be subsequently made up. I think the case cited in 1st Maddock is precisely in point; and Anderson v. Maltby cited for the defendant differs from the present case, because there the circumstances shewed that the partner retired solely from the conviction that

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RAJA BURRODOCAUNT ROY versus JUGGUTCHUNDER
MOOKERJEE AND OTHERS.

The argument of this case is briefly reported in the
Hur caru of the 31st of January.

Sir Edward Ryan.-This is a very singular case, and I do not recollect one similar to it in this court. The original decretal order, which was merely ad computandum was obtained in 1835, but the final decree was not until November 1837. Now the present supplemental bill was filed in the interval, and prays for an account of the estate, and that an injunction may issue to prevent waste. It is established by Smith v. Eyles, 2 Atkyn's Reports, that an interlocutory decree does not take effect, until the final decree has been pronounced. Since, therefore, we cannot look at the final decree, which was of posterior date, it follows that there is no equity to support the complainant's case.

Sir J. P. Grant concurred.

Bill dismissed.

Mr. Clark, and Mr. Lieth for the complainant. Mr. Prinsep and Mr. Cochrane for the defendants. A rule for a nonsuit will be moved for on Monday in the case of Walker v. Bruce, on the liberty reserved. The Insolvent Court sits this day, (Saturday.) -Hurkuru, March 3.

MONDAY, MARCH 5.

(Before Sir Edward Ryan and Sir. J. P. Grant.)

not only entitled to a verdict, but entitled to recover the full purchase-money, and for this position he cited Dunmore v. Taylor, Peake 56. Now it was entirely through the operation of the new rules of pleading that the plaintiff had been debarred from inserting such a count in the present instance; it was hoped, therefore, that if the court should be hostile on the first point, leave would be given to the plaintiff to discontinue this action on payment of costs.

Sir Edward Ryan.-Take your rule upon both points. Rule granted accordingly.

J. A. WALKER AND OTHERS v. W. BRUCE AND OTHERS. Mr. Leith moved for a rule to shew cause why the verdict for the plaintiff in this case should not be set aside, and a nonsuit entered instead. The learned counsel said that the liberty reserved was for a nonsuit, but he should submit that he was entitled to move for a verdict for the defendant.

Sir Edward Ryan.-State the points very shortly which you mean to take on argument, because you will be entitled, of course, to a rule nisi.

Mr. Leith.-The first point relates to matter of form; negligence is the foundation of this action, and yet there is no duty alleged from the breach of which negligence may be inferred. Max v. Roberts. 12 East's Reports. Secondly, we shall contend, on the merits of the case, that the action cannot be maintained unless

there be fraud on the part of the defendant, and in support of this we shall rely on Pasley v. Freeman. 3 Term Reports, Haycraft v. Creasy. 2 East. Ashlin v. White, Holt's nisiprius cases. Tupp v. Lee. 3 Bosanquet and Puller, Scott v. Lara, Peake. Ames v. Milward. 8 Taunton. The third objection which we intend to advance is, that the injury is too remote. Vicars v. Wilcor. 3 East. Ward v. Weeks. 7 Bingham. And, lastly, we shall rely on the laches and negligence of the plaintiff himself, by which he would be barred from recovering even if this action were maintainable on principle. But

DOE ON THE DEMISE OF JAUN BEDEE versus ABDOOLAH terfield v. Forrester. 11 East. Vernon v. Keyis. 4 Taun

BARBER.

The Advocate-General mentioned this case to the Court in which liberty had been reserved to move to set aside the verdict, upon certain points of Mahommedan law. The learned counsel was not prepared upon the argument, but he mentioned the case, because this was the last of the four initial days of term allowed for the moving of new trials.

ton.

Sir Edward Ryan.-Your rule must be for a nonsuit. and not that a verdict may be entered for the defendant, Rule granted.

SREEMUTTY NIBBUNMONEY DABEY versus SHAMYLOLL TAGORE AND HURREELOLL TAGORE. The court gave leave to move for a rule on a future of the defendant Hurreeloll, to strike out certain words Mr. Leith made an application to the court on behalf day.

in a decretal order drawn up in this case. A motion had been formerly made by Mr. Prinsep, to let in two SHEFKISSEN SING v. GOVINDCHUNDER BUNDOPADHYA. creditors to prove against the testator's estate before the The Advocate-General moved for a rule to shew cause and this was granted conditionally by the court, the Master (see the report in the Hurkaru of February 15th) why damages to the amount of Rs. 1,365-3 should not be terms being subsequently accepted by the counsel for substituted for the verdict of one rupee, nominal dama- the creditors. Mr. Leith stated, that he had then, as ges, entered for the plaintiff. This was a special action counsel for Hurreeloll, consented to the motion upon a brought for the breach of an agreement for the purchase common consent paper put into his hands that morning of several maunds of indigo, and it was tried as an un-in court, but affidavits were now put in, to the effect defended cause last term, when nominal damages were that the terms of the order varied from the original mogiven for the plaintiff. The court then said that in es-tion, and that this alteration was made without any timating damages, the period when the breach occurred, communication with the party, his counsel, or attorney; must furnish the standard of computation. Now the it was, therefore, complained that the consent of the party agreement was, that the defendant would weigh the indigo had been entered upon an order to which he never inwithin ten days, and pay the full amount, and remove tended to consent at all. the property; or, if failure took place within that period, that he would pay interest at 9 per cent. It is contended that the breach took place, not at the expiration of the ten days, but at the time of action brought, and it was proved that a re-sale could not have been then effected without great loss. The learned counsel further stated that if account for goods bargained and sold had been

Sir E. Ryan. If a consent paper is put into counsel's hands, and the motion afterwards takes a different the counsel ought either to exercise his own discretion, or consult with his client, before he consents.

rarn,

Mr. Leith then offered to pay all the costs, upon being allowed to withdraw the consent, which would put

Sir E. Ryan.-It seems that the attornies here, bequest contained in the second. It is observable that (Messrs. Hedger and Smalley) are in partnership. here was a mistake in the original translation of the will There is only an affidavit of Mr. Smalley that he was ignorant of the change in the terms of the motion. Why is there not au affidavit by Mr. Hedger?

Mr. Leith stated that that gentleman had been absent at Burdwan, and was present only upon one of the days when the application was before the court.

Sir Edward Ryan.-There must be an affidavit by Mr. Hedger of all the facts, and the matter must stand over in the meantime. Notice to one of the firm would be equivalent to notice to all. But if the consent was really given improperly, it is clear that the court has not the power of imposing terms concluding this party behind his back: he ought to have an opportunity of shewing cause against the order itself.

Ordered to stand over.

in respect of the Bengally word "AR." This word commences the second member of the sentence, and is explained to mean," and," other," "further," or "moreover." pretation, the inference is obvious that the two members Now whichever of these expressions be used in the interof the sentence are intended to be connected together, and to be governed by the selfsame contingency. But, farther, if the construction contended for by the other side were to prevail, it must also extend by parity of reasoning to the fourth bequest, so that the whole property would be devised away absolutely to the executor, and the son (to whom the will sets out by giving all) would be entitled, upon coming of age, to nothing more than the lapsed legacy to the widow. This would be absurd. The object of the testator is evident: -he wished to give all to the son, if he survived his minority, as the head of the joint and undivided Hindoo family. If the son lived, he was expected to take care of his vide for them. In the construction of wills there are which the court ought to consider in pronouncing their four general rules applicable to the present case, and decision. 1st, That where there is both a particular intent and a general one, the former must be sacrificed

BISSUN SOONDUNNEY DABEY versus RAJAH BURRODI- mother and sisters, and if he died, the will was to pro.

CAUNT ROY.

The Advocate-General moved for an injunction to stay the proceedings in this suit. An application had been made to the late Mr. Justice Malkin, to alter certain sums incorrectly set forth in the final report of the Mas-to the latter. Robinson v. Robinson, 1 Burrow. Doe v. ter, which was refused as an irregular proceeding. The present motion was made on a bill of review brought to rectify the error in the final decree made in the cause. Mr. Clarke took a preliminary objection to the application. This is the state of the case. We have got a decree for thiry-eight lacs of rupees; the opposite party wish to alter this sum by the subtraction of three lacs, and in the meanwhile to stay our execution. By their own shewing, therefore, we are entitled to five and thirty lacs, and yet no money is brought into court.

The court said, that this objection could not be go

over.

Mr. Clarke stated, that he was willing to make an offer. If the other side paid in the thirty-five lacs his clients would be very happy on their part to remit the disputed three lacs without further opposition!

Motion refused.

JOYGOPAL BYSACK V. SREEMUTTY NUBBUNGO DOSSEE. This was a demurrer to a bill in equity. The ques tion raised was, whether a certain legacy given by the testator to his two daughters was a contingent bequest, or vested and absolute.

Mr. Clarke and Mr. Grant for the heir.

Mr. Prinsep and Mr. Leith in support of the demurre for the legatees.

Mr Clark. There are four distinct legacies in the will, the first is the bequest of all of the testator's pro perty to his son -the second, which is admitted to be

contingent, is the bequest of Rs 30,000 to his widow, receivable in the event of the son dying under age. The third is the disputed legacy of Rs 20,000 to each of his daughters, with an additional sum of Rs 10,000 to be shared between them for the purchase of a house; and lastly, the residuary clause in favour of his brother, the executor. Of these the first is simple and distinct, and the second is compatible with it, because the latter is contingent on the failure of the former; we contend, that unless the third is construed to be contingent also, the whole will is utterly inconsistent and unintelligible. It is true that there are no words in the second member of the clause of bequest to the widow and daughters repeating the contingent event, but from all the circumstances it is clear that the contingency ex

Harvey, 6. B. and C. 2dly, The construction of the will is to be made on the entire instrument, and each part is to be considered with reference to the others. it is not necessarily to be inferred that the first is to be 3dly, Where expressions inconsistent are used in a will, overthrown. Jesson v. Wright, 2 Bligh. Lastly, that an express disposition cannot be avoided by mere inferrence and argument drawn from other parts of the will. Laurence v. Laurence, 1 Vesey Junior.

Mr. Grant followed on the same side, and dwelt chiefly on the grammatical necessity for considering this legacy a contingent bequest, as an authority for which he cited "Horne Tooke on conjunctions!"

by the learned counsel is more acute than just. The new reading which is so much relied on, appears more favourable to our construction. All the general principles laid down with respect to the interpretation of wills are freely granted in the abstract, but their applicability is denied One, indeed, is a strong argument.in our favour, viz. that an express disposition cannot be varied by reference to other parts of the will. Now, here is an express and absolute disposition on the face of it, in favour of the daughters, and it is sought to qualify this by reference to the former clause. Wright v. Compton, 9 East. There is nothing in the argument that our construction, if allowed at all, must be extend. red to the bequest to the executor. That bequest is residuary, that is, a bequest, intended to take effect, acafter the payment of all legacies previously specified cording to the essence of residuary clauses in general, testator clearly was to give this legacy to his daughters whether vested or contingent. The intention of the absolutely: for he speaks of their being given in marriage, and these sums were intended for a marriage portion.

Mr. Prinsep and Mr. Leith contra. The view taken

Mr. Clarke replied.

Sir Edward Ryan.-I have no doubt in my mind upon this case. The court is of opinion that the testator's intention is clear to give these specific sums to his daughters contingently, only upon the decease of the son under age. Upon any other construction the will is unintelligible.

Demurrer overruled-but without costs.

TUESDAY, MARCH 6.

(Before Sir Edward Ryan and Sir J. P. Grant.)

BARCLAY versus MORTIMER.

The Advocate-General moved for a rule to shew cause

pro tanto, for the lessors of the plaintiff. This ejectment case was tried last sittings, and a verdict being found for the defendant, leave was reserved to the plaintiff to move upon certain points of Mahommedan law. The learned counsel shortly stated the points which he intended to take on argument. First, that the instrument under which the defendant claimed was nothing more than a writing declaring the proprietorship of the party axecuting it, and that it was therefore inoperative altogether. Secondly, that a legacy cannot be left to one heir without the consent of the co-heir. (McNaghten's Mahommedan law, pp. 53, 124.) And lastly, that the instrument in question, if it was operative at all, operated as a will, because all charitable gifts are taken to be legaSir E. Ryan on looking over the affidavits, said, that cies, and follow the same rules of construction, (D'Huson's Tableaux de l'Empire Ottoman), and that therethey were insufficient, because they only stated the ex-fore according to the rules of Mussulman law the testapectation of the defendant, and did not shew any positor could not by will legally alienate more than onetive duty on the part of the plaintiff to delay entering third of his whole estate. (Sir William Jones, on the up judgment after the usual time.

why the judgment by default against the defendant in this action should not be set aside. Affidavits were put in, certifying that there was a good defence on the merits, and stating that a negociation between the parties had been pending for some time previously to the signing of the judgment, the whole matter being intended to be referred to arbitration, and finally settled out of court.

BHOWANNY PERSAUD EXECUTOR OF KHOON DOOROOLOLL

v. GOPAULLOLL AND OTHERS.

law of inheritance, p. 517.)

Rule grunted.

HURRYLOLL TAGORE.

Mr. Leith renewed the application to the court, which stood over from Monday, in order to allow time for an affidavit to be put in by Mr. Hedger, the other partner in the firm of Messrs. Hedger and Smalley, attornies for the defendant Hurryloll. The matter, it may be recollected, had reference to a consent alleged to have been obtained through mistake to an order of the court.

This equity suit came on for bearing on evidence SREEMUTTY NIBBUNMONEY DABEY . SHAMYLOLL AND The bill prayed for a decree establishing the will of the testator. Khoondooroololl, and declaring the rights of the parties; also for an account of all the estate of the said testator, which had come into the bands of the defendants, or any of them, and for an injunction against wasting the same, and for the appointment of a receiver. The bill and the answer of Gopaulloll having been opened by Messrs. Sandes and Grant, the Advocate-Ge neral rose and stated to the court, that the parties were willing to effect an amicable arrangement, which would render the further hearing unnecessary. It was hoped, therefore, that the prayer of the bill would be granted, and the rights of the parties decreed.

The court said, that an account might be decreed, but that it was impossible to decree the rights of the parties, until some evidence was given concerning those rights.

All the necessary parts of the evidence were then put in and read, and the court accordingly directed a decree for an account, and declared the rights and shares to which the parties were severally entitled under the will of the testator Khoondooroololl.

Mr. Clarke submitted that there ought also to be an affidavit by the defendant Hurryloll himself. Mr. Hedger had sworn positively that he himself was not in court at the time when the order was made, but he could only swear to his belief that the defendant Hurryloll was not present on the occasion.

The court said, that the affidavit of Hurry loll was indispensable.

Motion stood over.

The Advocate-General and Mr. Sandes were for the SREEMUTTY SIBBOOSOONDERY DOSSEE v. GOVINCHUNDER complainant.

Mr. Prinsep and Mr. Grant alone for one of the defendants, Gopauloll.

Mr. Leith alone for one of the defendants, the widow, of the testator.

Mr. Cochrane alone for the other defendants.-Hurk. March 7.

WEDNESDAY, March 7.

Sir Edward Ryan sat alone this-day to take common motions.

SREEMUTTY SIEBOOSOONDERY DOSSEE V. KISTNONUNDO

BISWAS.

Stands for hearing on the equity board for to-morrow, Thursday. This day there are no causes yet set down on the plea side.-Hurk. Mar. 8.

THURSDAY, MARCH 8.

BISWAS.

This cause came on for hearing on further directions, and was referred to the Master by consent.

The Advocate-General and Mr. Osborne for the complainant.

Mr. Prinsep, Mr. Clarke, and Mr. Nott for the defendants.-Hurk. March, 9.

SATURDAY, MARCH 10.

(Before Sir Edward Ryan.)

IN THE MATTER OF W. P. BIRD, Deceased.

Mr. Leith moved that citations do issue, upon an exemplification under seal out of the Ecclesiastical Court at Madras. There were affidavits verifying and authenticating the seal of the court.

The Chief Justice said, that the affidavits were not necessary. Although a doubt was expressed some days since whether the seal of a court in Ireland did not re

DOE ON THE DEMISE OF JAUN BEEBER AND OTHERS v.quire authentication here, this is not necessary in resABDOLLAH BARBER. pect of the Madras court, the seal of which proves itself.

The Advocate-General moved for a rule to shew cause why the verdict for the defendant should not be set

Motion granted.

MONDAY, MARCH 12.

(Before Sir Edward Ryan, and Sir J. P. Grant.)

WALKER V. BRUCE.

The court was occupied from eleven o'clock until half past four, in hearing the argument in this case, the facts of which are well known.

The Advocate General, Mr. Prinsep and Mr. Clarke for the plaintiffs, shewed cause against the rule nisi obtained by Mr. Lieth for entering a nonsuit.

The learned counsel first directed attention to the question of evidence, and contended that there was suffi cient proof that the defendants were aware of the fact that the goods were not on board at the time of granting the policies, and that they had no right, therefore, to grant the policies under those circumstances, or at least to certify that the goods were actually laden. The case was like giving a receipt or acknowledgment for money, when no money was received. It was not intended to advance any argument inconsistent with the finding of the court as a jury, but although they had negatived moral fraud, it was still open to shew that there had been fraud in law. Crassa negligentia æquiparatur dolo. The learned counsel were proceeding to shew that the act of Jones, the agent, must be taken in every respect to be the act of the defendants, his principals. But the court said, it was quite unnecessary to cite cases upon this point, because nothing could be more clear than that a principal was civilly responsible for all the acts of his agent done within the scope of his business and employment.

considered (the case of Polhill v. Walter) as bearing the most strongly against the defendants.

The learned counsel submitted that the case was clearly distinguishable. Bills of exchange and promissory notes stand upon their own peculiar footing, and are liable to rules of construction not applicable to other transactions. The defendant, by accepting the bill by procuration made himself a party to it, and this alone removed the main objection which exists, in the case before the court. Every subsequent indorsee, acquired a right of action against the defendant, because all subsequent parties to a bill are by a restrospective operation referred that there was a privity between them and the defendant, back to the date of the creation of the instrument, so just as much as if he had contracted with each specifieither of these two objections had been got over, first, cally and by name. No case had yet been cited in which that the communication was plaintiff, and secondly, that there was no sort of intention not made directly to the at the time of performing the act in question, and no probability that the defendants could perceive, of causing injury to the plaintiff in particular, or indeed to any fendants and the party insured were in the least degree party at all. It was an act in which no one but the deconcerned, and it was the plaintiff's own gratuitous act 10 step in and act upon the faith of matters which had no reference to him whatever. The doctrine would be most mischievous in its consequences. In effect it would not only the duty of insuring the safe arrival of goods, compel an Insurance Office to take upon themselves which was their appropriate business, but also the burthen of guaranteeing the due shipping of those goods for the protection of consignees of whom they know nothing.

The learned counsel then considered the cases which Other arguments were urged by the learned counsel had been cited when this rule nisi was obtained, and for the defendants, but not dwelt upon at so much they expressed their surprise that Pasly v. Freeman, length. It was contended that here the plaintiffs' own Haycraft v. Creasey, Tapp v. Lee, and others of a simi- negligence had barred them from recovering. Even Jar tendency should have been adduced in support of between party and party (where the objection of want the defence, when the principle on which they proceeded of privity did not exist), a plaintiff could not recover, was in favour of the plaintiff. The case of Foster v. unless he took sufficient precaution to protect his own Charles, 6 Bingham's Reports, and Corbett v. Brown, 7 interests, and surely the present plaintiffs exercised very Bingham, sufficiently established the distinction be- little caution, indeed in relying so implicitly upon the tween moral fraud or fraud in fact and constructive faith of an act done by third persons, with whom they fraud or fraud in law. These cases lay down the posi-had no connextion, and who were not in the least detion that the motive is immaterial altogether, that it is not gree called upon to protect their interests. Again, the necessary for the party to have collected with any other, injury is too remote and consequential. Authorities or to have derived personal benefit from the false repre- abundantly shew that the injury complained of must sentation, and that it is simply sufficient to support the result as a direct and natural consequence from the alaction, wherever a false representation has been actually leged wrongful act, and surely it was not a very direct made, provided that it was known at the time to be or probable consequence from the granting of a policy of untrue by the party making such representation. Nay, insurance, expressing that the goods were shipped on further, that it was not absolutely necessary the party board, that strangers would be forthwith induced to should know it to be false, it was enough if he did not advance money on what turned out to be fictitious know it to be true, and injury subsequently accrued consignment. The learned counsel also said, that they therefrom. But the case upon which they principally by no means conceded the point that the defendants relied was Polhill v. Walter, 3 Burnewall, and knew at the time of granting the policies that no goods Adolphus's Reports, (K. B.) 114. There the defenwere shipped. The defendants were in fact themsalves dant had accepted a bill of exchange per procuration, the dupes, equally with the plaintiffs; the real tort-feaand an indorsee, on the faith of such implied guaranty sor had escaped, and now one of his dupes sought to having sued the supposing acceptor, and having been make good his losses by claiming compensation from the non-suited for want of proof of authority to accept, other. brought the action against the defendant for falsely and deceitfully representing that he was authorized to accept by procuration; and the action was held sustainable notwithstanding that the jury had negatived all fraud in fact.

The court, after a short consultation, said that they should deliver judgment in a day or two.-Hurkaru,

March 13.

TUESDAY, MARCH 13.

(Before Sir Edward Ryan and Sir J.

P Grant.)

Mr. Lieth and Mr. Grant, contra, in support of the rule, contended that none of the cases cited in the least degree touched the main objections urged against the present action. It had been asked why the cases on the question of fraud had been adduced in support of the defence, the reason was that that entire series of cases established that fraud was the essence of the ac-action of assumpsit on two bills of exchange. The first

tion.

CHARLES MORELL v. HENRY T. SHELDON.
Mr. Marnell opened the pleadings. This was an

was for £68 10s, drawn in 1834, by one John Lewis, at

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