nees. We are here upon the question of the distribution of the bankrupt's estate: what is no part of that, we are bound to give to the real owners. Mr. Bethell has raised an ingenious argument upon the case of Williams v. Everitt, that the general principle is, that where a court of law will not interfere by considering an implied contract, a court of equity will hold that there is no trust; the consequence of which would be, that there would be no relief against a trustee having money of the cestui que trust in his hands. There is nothing in the case of Williams v. Everitt, which was a case at law, to prevent the Court here deciding the present question between the assignees and the petitioners. I am of opinion, that the petitioners are entitled to obtain from the assignees their proportion of the remittance come to their hands since the bankruptcy.

SIR G. ROSE.-I was not present when judgment was pronounced in the case of the Belgian company; but it struck me, on reading the petition, that the Court never had a clearer case, as there stated, to justify them in taking the property out of the hands of the assignees, and it occurred to me, had I seen the affidavits, to have intimated to the Court, that the order should have been a general order, as to all the parties interested, and that is the general practice. It is said, that the former case is under appeal; but till I hear a different result, I shall say, that there never was a case which more fully justified the doctrine of appropriation. It is said, the bills were specially indorsed to the bankrupts, and no doubt but by that all the legal property and controul is passed to the bankrupts, and from them to the assignees; yet we are not now to be told that though the property so passes to the bankrupts, this Court will not, upon petition, give relief; or that the mere fact of bankruptcy so determined the agency, that the Court now cannot act upon the property. There is a legal title in the bankrupts by the fact of the special indorsement, and the Court will always make the agency of the bankrupt a continuing agency. When the payments were forwarded for the goods consigned, the bankrupts were agents of Cotterill & Co., as agents for the Singapore

house, but bankruptcy intervening, the assignees get the bills, and say, they have a right to apply them to the general estate. Without going further, if it stood upon the habit of dealing, the mere habit alone would make the bankrupts agents for the shippers. If it is to be taken upon the letter accompanying the bills, "These bills are belonging to or on account of the following parties," and the letters of the remittees, "which, after perusal, we will thank you to forward," is not the Court bound to act, notwithstanding the jurisdiction may not attach; the question being, whether against the remitters there has not been an absolute appropriation, that is, whether the property has not irrevocably gone out of their hands? It is an admission on their part, that the remittee is a creditor to the full amount; and there is no possibility of the remitters recalling the fund, it being out of their hands, as so much money. The question is within the jurisdiction, by the right of the creditors to prove against the estate, the 7341.; and so the question is, between the assignees and the party claiming the benefit of the appropriation, a mere question of administration, how far the estate is to be relieved from proof. If the party, not coming within the jurisdiction, considers that the order of the Court has given to a third person funds to which he has no right, that party's right is no way concluded, for the Court only takes out of the hands of the assignees to give to a particular creditor. I am of opinion, that this is a distinct specific appropriation of bills come into the hands of the assignees, and to be applied by them to the trusts mentioned, that is, in favour of the petitioners.

A special order, as to this fund, with liberty to the parties to make it a general order; as to the others, in consimile casu, if they think fit.

Principal and Agent-Forfeiture-Compensation-Freight.

A merchant had consigned goods to a fac tor, in Denmark, and the goods were confiscated. Compensation was afterwards made by the English government:-Held, that the factor was entitled to be paid out of it for the freight.

In 1807, Atkinson, the bankrupt, consigned a cargo from England, in a neutral ship, Fortuna, to Good & Son, English subjects residing at Elsinore, Denmark. Before the ship arrived war was suddenly declared by England, and in consequence thereof, Good & Son refused to receive the consignment. The captain, anxious to receive the freight money, summoned Good & Son before the Sea Court of Copenhagen, to compel them to receive the consignment and pay the freight, and that Court made the following order: "The summoned John Good must, before three

settings of the Sun, after this sentence is legally made known to him, and under the penalty of thirty rix dollars to the poor funds, for every day it is not complied with, point out a convenient place of discharge for the plaintiff's vessel; and when the vessel has got to the place of discharging, without delay receive her cargo, and after that is discharged, to pay the freight, and that money amounting to 260 guineas of British money, as well as 4 guineas daily from the 10th of this month, until the day the place of discharge is fixed upon; and further, from the day on which the plaintiff reported his being ready to discharge, the demurrage."

all

Good & Son accordingly received the cargo, and paid the freight, &c., but as soon as the goods were landed from the neutral vessel, they were confiscated by the Danish government. During the war, intercourse was forbidden to British subjects residing in Denmark, who were bound by an oath, and under penalty of confiscation of property, not to communicate with England. In 1810, Atkinson became a bankrupt, and peace was declared in 1814. Good & Son were desirous of being repaid what they had advanced for freight, &c., but, as claims had been made upon the British government for compensation, it was agreed that the demand of Good & Son should stand over, and form a lien upon the amount of compensation to be made. In 1834, the sum of 3,7691. was awarded to Patrick Johnson, the official assignee to the estate of Atkinson. The other assignees had died, as well as Good and Son; and the personal respresentative petitioned for the sum of 5021., the freight and demurrage money, the petition praying that Good & Son might be declared entitled to a lien on the amount awarded as such indemnification for the sum of 5021.

On the petition coming on to be heard, the Court inquired whether the petitioner would submit to any order the Court might make.

Mr. Bethell, for the petitioner, consented. The question is very simple, Atkinson's assignee having received the 3,7697. compensation money for the cargo, do not the same equities attach on it in his hands, as if Good & Son had actually received

the cargo? The money decreed by the Privy Council is in lieu of the property on which Good & Son had a lien. But supposing the lien does not extend to this fund, still Good is entitled to it, as the necessary legal consequence of the order in council. The acts of the King's enemies do not affect the rights of the King's subjects, so that if a vessel is captured, and the master turned out of her, still, if she is re-captured, the captain's lien for freight remains-Ex parte Cheeseman (1). The other side will possibly cite Campbell v. Mullett (2), but in that case, an alien was in partnership with two Americans, and the partnership property was confiscated. Compensation was awarded by commissioners to the Americans, and the alien was excluded from all claim on the fund for his share; and the partnership creditors were held to have no claim as against the separate creditors of the Americans. The respondents may also rely upon what the Master of the Rolls said in that case, and contend that this compensation money was a mere donation; but that case is not a precedent here, for the alien partner was expressly excluded from any share by the order of the commissioners. In this case, the bankrupt having been illegally deprived of his rights, the petitioner's claim for freight, &c. still remains, and revives with the grant of indemnity from our government; he has suffered loss, then why is he not entitled to a share of the relief awarded? What is meant by a lien ? [SIR G. ROSE.-A right to possess or retain.]

Yes, and it may be carried further-a right to be paid or satisfied out of a specific fund. Compensation money has always been considered as standing in the same character as the original. Now Atkinson gets back from the British government, compensation for the goods wrongfully taken by the Danish government, and the petitioner has a right to follow the money into the hands of Atkinson's assignee.

Mr. Swanston, for the official assignee. -There is nothing in common between the compensation money and the cargo upon which the petitioner claims a lien. The money is a newly-created fund by the (1) 2 Eden, 181. (2) 2 Swanst. 551.

policy of the English government, and comes to him, not by his original proprietory right, but by a right newly conceded. No one denies the right or jurisdiction of the Court in Denmark to confiscate, and that sentence has never been reversed. All that the case of Ex parte Cheeseman establishes is, that a re-capture places things in statu quo. This is not a re-capture, and at the time of the bankruptcy, the bankrupt had no right upon which the claim or lien of the petitioner could attach.

Mr. Bethell, in reply, was stopped by the Court.

The CHIEF JUDGE.-The Court is of opinion, that the petitioner is entitled to what he asks for. The fund in question was not awarded as compensation damages; if so, it would have been difficult for Good to have established any right of lien; but at the time the compensation was awarded, Good had paid as consignee, by the direction of Atkinson, a certain sum for freight. The cargo was seized by the Danish government after that payment, and this as well as other losses were incurred by British subjects. Our government, having thought it just to indemnify its subjects from the consequences of a sudden declaration of war, have placed the owners in precisely the same situation as if the cargo had never been seized; and the compensation money, representing the property seized, is subject to all the claims and interests of British subjects, which would have been available against the goods.

SIR J. CROSS.-The cargo was consigned to Good, and received by him as factor; he pays the freight and other charges, and is in possession of the cargo at the time it is seized he is a British subject, and has suffered a loss. What right can the assignees of Atkinson have to retain Good's share of the compensation money?

SIR G. ROSE.-This claim cannot be sustained on the ground of lien. The jurisdiction of this Court over the assignees was in the nature of trying an action for money had and received to the use of the petitioner; if there were any doubt, it should weigh in favour of the petitioner; but I do not think a doubt exists.

Costs out of the estate.

A commission issued against Ward in 1811, under which he was declared bankrupt. In 1813, a dividend of 20s. in the pound was paid to all the creditors who had proved, but the bankrupt had neglected to obtain his certificate, or a supersedeas of the commission. Since the payment of the dividend, the bankrupt had purchased an estate, and had lately contracted for the sale of it. Objections to the title were raised by the purchaser, on the ground, that Ward was an uncertificated bankrupt. The assignees, the commissioners, and most of the creditors were dead.

Mr. Swanston applied for a supersedeas of the commission.

The COURT inquired who had been served.

Mr. Swanston.-There is nobody to serve. It would be most expensive to have procured the signature of the creditors who are alive, and of the representatives of all those who are dead.

[The CHIEF JUDGE.-You might have a renewed commission.]

There are no creditors. In Twogood v. Neave (1), Lord Eldon held, that he could not grant a renewed commission, where all the creditors had been paid in full. As there has been a valid commission, that will give the Court jurisdiction to supersede.

Per Curiam. We have jurisdiction, if we could see our way to exercise it safely. How can we supersede a commission issued in 1811, upon the petition of the bankrupt in 1837, alleging, that all the creditors were paid 20s. in the pound? What proof is there that creditors entitled to interest have been paid their interest? It would be to annul everything that has been done by

(1) Buck. 65.

the assignees under the commission. That the intended purchaser is not satisfied with the title, gives good reason that we should not grant this application.

Application refused.

Nov. 25.-Mr. Swanston again applied, that the Court would either supersede or in analogy to the proceedings in the Master's office, and with the practice of the Court of Chancery distributing assets, would direct an inquiry to ascertain whether there were any creditors.

The CHIEF JUDGE.-If it were established, that every bankrupt who had paid 20s. in the pound is entitled to a supersedeas, then it would be right for the Court to interfere, in order to ascertain that fact by a reference. But the inquiry asked would not advance you. The fact of 20s. being paid, is a good ground for the creditors. assenting, or having their debts expunged. But it is always a question of indemnity to the assignees in superseding; and their personal representatives are not served. It would subject them to be called on to account for everything they have done under the commission, by reason of our taking out of the way that which justified their

acts.

There is no safe ground why the Court should set up such a precedent.

SIR J. CROSS.-The question is new and peculiar. There are two things for consideration, whether, under the circumstances, there is not reasonable evidence of the consent of the creditors; next, whether, under the circumstances, and after the lapse of time, there is not sufficient evidence of the signification of the commissioners. The impression on my mind is, that there is.

SIR G. ROSE.-We can do nothing more for you than to impound the proceedings. The COURT made no order.

Mr. Swanston then intimated that he should apply to the Lord Chancellor.

The CHIEF JUDGE.-It is no question of appeal. But if the Lord Chancellor think there is sufficient evidence for him to remove the commission out of the way, he will do it.

NEW SERIES, VII.-BANKR.

C

1837.

Nov. 28.

Ex parte MAGEE re slack.

Supersedeas-Misdescripton.

Where a bankrupt carried on his trade as a paper-manufacturer at one place, but had a warehouse where he transacted business at another, it was held not a misdescription to describe him as of the former place.

A fiat issued on the 3rd of October 1837, against the bankrupt, and he was therein described as "Robert Slack, of Hefield, paper-manufacturer." It was alleged, that the right name of the place where the bankrupt manufactured his paper and also resided was Heyfield ;" and that there was also a defective description, inasmuch as the bankrupt carried on the principal part of his trade at Sheffield, where he had a large warehouse, and where he was most generally known as a trader.

66

The petition prayed that the fiat might be annulled, and that a new one might issue at the instance of the present petitioner.

Mr. Swanston, for the petition.—The name of the bankrupt's residence is wrongly spelt, and his principal place of trade omitted.

[SIR G. ROSE.-Have you evidence that any inconvenience has resulted from not appending the further description ?]

A case of misdescription is enough without that.

[The CHIEF JUDGE.-This is not the case of parties coming to the office at the same time, one with the addition, and the other without it.]

The place of his manufacture is not the place of his trade. As well might the laboratory of a chemist be called the place of his trade. Sheffield was the place of his general business for buying and selling.

[The CHIEF JUDGE.-Have you any case where such a misdescription has been held sufficient ground for a supersedeas?]

In Ex parte Parry (1), the bankrupt was described as of Sutton, Surrey. It appeared from the evidence, that he had for some years resided and traded at Bath, and had only quitted it a few months previous to the issuing of the commission. The Vice Chancellor considered the omission of all

(1) 2 Glyn & Jam. 225.

reference to Bath, where chiefly the bankrupt was known as a trader, and where the body of creditors might naturally be presumed to reside, was as much calculated to mislead as if he were described of a place where he had in reality never been. In the present case, the place where Slack carried on his trade is omitted altogether.

It

The CHIEF JUDGE.-I never heard an application with so little foundation. The fiat issued against a paper-manufacturer, at Hefield, and the first objection raised is, that the place of the manufacture wa Heyfield, and the petition does not allege that it is not idem sonans; and, besides, there is no motive for misdescription. Next, as to the defective description. is said, that the place where the paper was manufactured was not the place of his trade. But that was the place of his trade; because, there, he purchased all his goods, and made them up, which the act declares a trading. It is not necessary that the bankrupt should be described as of every place where he has a warehouse. The question is, then, whether there has been any omission tending to deceive. The case cited was of that description, because the only place where the bankrupt was known as a trader had been omitted.

SIR J. CROSS and SIR G. ROSE Concurred.
Petition dismissed, with costs.

Bill of Exchange-Undertaking to accept-Proof.

A, agent of B. & Co., is sent abroad to purchase goods; and, for that purpose, is authorized to draw bills upon B. & Co., and by sale or negotiation of the same, to raise money for the payment of the goods, B. & Co. undertaking to the agent to honour such bills when presented in Liverpool. A bill, drawn by the agent accordingly, is discounted by C, and by C. indorsed to another, and by him to the petitioner, all parties having notice, at the time of taking the bill, of such authority and undertaking on the part of B. & Co. Before the bill arrived at Liverpool, B. & Co. had become bankrupt. Issue