1822. June 18th EASUM and Others, Assignees of DowSLAND Tuesday, ASSUMPSIT for money had and received, and the goods Where J. S. being desirous of making a shipment for his own risk and advantage, but not in his own name, re presented to the merchants, through whom the shipment was to be made, that the goods were the property of A., and shipped on his account, and 4. accordingly, by the desire of J. those mer S., wrote to They 8000l., chants, stating the party to be so, and direct ing them to insure, and to ad vance money to goods, which was done: Held, that this was a credit given to A. by in the name of the defendant. It appeared, from a J. S. on the letter dated 17th December, 1818, from the bankrupts to the defendant, and his answer thereto, that the shipment was on the account and risk, solely, of the bankrupts, and that the defendant had no interest in it. bankrupts, however, represented to Messrs. I. and W. March, that the goods belonged to, and were shipped on the account of the defendant. The goods were ac The cordingly shipped, and the defendant, by the desire of J. S. by the delivery of goods in its nature likely to termi nate in a debt, and that, therefore, J. S. having subsequently become bankrupt, 4. was entitled to re cover the pro ceeds of the shipment from the merchants, and to set off against them a debt due from the bankrupt to him, it being a case of mutual credit within 5 G. 2. c. 30. s. 28. the 1822. EASUM against Сато. the bankrupts, copied and sent a letter to Messrs. I. and W. March, dated 1st January, 1819, as follows: "Gentlemen, I have shipped on board the Friendship, Captain Dawson, for Rio de Janeiro, about ten tons of wrought copper, consigned to your house there for sale, the invoice cost of which will be about 2000%., and I have to request you to advance to my friends, Messrs. Dowsland and Davison, on account of this shipment, 1000l., or thereabouts, upon their handing you bills of lading. I have further to request, that you will insure 2000l. on these goods for my account, and with respect to the disposal of them, Messrs. Dowsland and Davison will make the necessary communications on the subject, previous to the departure of the ship." Messrs. I. and W. March accordingly advanced to the extent of 800%, and such advance was made by them on the credit of the shipment made through their house. At the time the defendant copied and sent the letter, he did not know from whom the bankrupts had purchased the goods. The bills of lading stated that the goods were shipped by I. and W. March and Co. for Rio de Janeiro, and to be delivered to March, brothers, and Co., or to their assigns, freight for the said goods to be paid in London, with primage and average accustomed. The invoices were furnished by Dowsland and Davison, and signed by them; they were headed thus: "Invoice of 35 cases, &c. shipped on board the Friendship, William Dawson master, and consigned to Messrs. March, brothers there, for sale, on our account and risk, as agents." The insurance on the goods, &c. shipped, was ef fected by Messrs. I. and W. March in their own name. From the 1st January to the 14th of June, 1819, the defendant, at the instance of Dowsland, made very con siderable siderable advances in cash and bills to Dowsland and Davison, making a balance due to the defendant, of 11967. 10s. 1d. on the 14th June. Doresland and Davison became insolvent in July, 1819, and committed acts of bankrupty about the 19th March, 1820, and a commission issued against them, dated the 19th May, 1820, under which the plaintiffs were chosen assignees. After their insolvency, the house of March, brothers, and Co., of Rio Janeiro, forwarded to the house of I. and W. March and Co., London, the accounts sales of the copper. consigned to them, with three letters addressed to the defendant, dated 27th September, 1819, and 19th April, and 6th May, 1820. This was the only correspondence which the defendant had with them, but it is not usual for persons making consignments through London houses, to correspond with the houses abroad, who know only the house through which the consignments are made. On the 29th July, 1820, the assignees, through their solicitors, wrote letters to Messrs. I. and W. March and Co., claiming the property in question, and requiring them not to account to any persons but themselves for the same. After the issuing of the returns for the shipment commission of bankruptcy the so made to the house of March, brothers, amounting to 2477. 19s. 11d., came home to the house of I. and W. March and Co., who, in December, 1820, paid to the defendant the sum of 101. in part of such proceeds. This payment was made to the defendant before this action was brought, and after notice given of the bankruptcy, and of the claim made by the assignees. At the time of the bankruptcy Dowsland and Davison were indebted to the defendant in the sum of 31027. 18s. 8d. for monies paid and advanced by the defendant, and for liabilities 1822. EASUM against CATO. 1822. EASUM against CATO. liabilities which the defendant had entered into for them previously to their stopping payment. The jury found as a fact that the bankrupts intended to give the defendant a lien on the shipments for the money previously advanced by him. (a) Marryat, in last Easter term, obtained a rule nisi for a new trial, on the ground that this was a verdict against evidence, and as to that he relied on the letter of the 17th December, 1818, as decisive to shew, that the only object the bankrupts had was to conceal their interest in the transaction, which was not a proper one for them, as brokers, to undertake. The Court, in granting the rule, directed the question to be argued, whether, independently of that finding, the verdict was not right, it being a case of mutual credit within 5 G. 2. c. 30. s. 28. Scarlett and Campbell shewed cause. They contended, that, whether or not the special finding of the jury could be supported, this was clearly a case of mutual credit between the bankrupts and the defendant, within 5 G. 2, c. 30. s. 28., by which the commissioners are to settle the account between the parties, and the balance alone is to be claimed or paid. Here the bankrupts represented the defendant as the owner of the goods to the merchants through whom the consignment was to be made, and thereby gave him an authority, which being coupled with an interest was not countermandable by them, to receive the proceeds. It is quite clear that the defendant, if he had received these proceeds before the (a) There was another shipment through Messrs. Warre, brothers, to which the action equally applied. But as the two were in all essential particulars exactly similar, we have thought that our report would be simplified by omitting the facts relative to that transaction. bankruptcy, bankruptcy, could have set them off against the debt due from them to him. And what is the difference? Here it was a credit, given by the delivery of the goods, in its nature likely to terminate in a debt; and that is the criterion laid down by Gibbs C. J. in Rose v. Hart. (a) This case falls, therefore, within the principle laid down in Olive v. Smith (b), and French v. Fenn. (c) Marryat, Puller, and Maule, contrà, contended, that this was not within the statute. Here the bankrupts could have compelled the house of March and Co. to account for the proceeds to them. For the defendant was not at all interested in the gain or loss arising from the transaction. There is no instance to be cited in which it has been determined to be a case of mutual credit, unless where the goods have been delivered to and are in the possession of the party himself. That was the case in Olive v. Smith and French v. Fenn, which are, therefore, distinguishable from the present case. In Sampson v. Burton (d), where they were in the hands of a third person, it was held not to be within the statute. As to the finding by the jury, there is clearly no evidence to support it. ABBOTT C. J. My opinion, in this case, is not founded upon the intention found by the jury, but on the ground that the facts here establish a case of mutual credit. It appears that the bankrupts, being desirous of making consignments to Rio de Janeiro, and not choosing (a) 2 Bay. M. 547. VOL. V. (b) 5 Taunt. 56. (c) Cooke's B. L. 7th ed. 556. 3 L to 1822. EASUM against Сато. |