end to the right; Lickbarrow v. Mason, 2 T. R. 63. (a) In either point of view, therefore, the stoppage in October, 1851, was wrongful: J. R. & J. Alexander might, at that time, have maintained trover or detinue for the cargo; and the payment by them to A. Ralli & Co. to get the cargo was in their own wrong. When it is thus understood, the case comes to be, that J. R. & J. Alexander have, without any authority express or implied by law, paid to A. Ralli a debt owing to him from Spencer Ashlin & Co., and cannot now set off that payment against their own debt to that *firm. The defendants now say that the sale was [*297 from A. Ralli & Co. to J. R. & J. Alexander, who still remained debtors to A. Ralli, notwithstanding that the draft had been accepted; and that, in some way or other, the consideration for accepting the draft has failed. But the conduct of A. Ralli & Co. and J. R. & J. Alexander at the time of the attempted stoppage is strong evidence that the transaction really was one of sale by A. Ralli & Co. to Spencer Ashlin & Co. J. R. & J. Alexander, in their letter to their Falmouth agent, on 11th October, say: "We hold the bill of lading endorsed by Ralli & Co.; but we understand they have some dispute with the original purchasers of the cargo." And A. Ralli & Co. writing to the captain to stop the cargo, say it is "on account of the bankruptcy of your cargo's buyer." This shows that the parties, who knew best, both considered Spencer Ashlin & Co. the purchasers. And this was not a new idea; for A. Ralli & Co., at the time of the sale, debited Spencer Ashlin & Co. in their books, and made out an invoice to them as purchasers. And Spencer Ashlin & Co. request J. R. & J. Alexander that the bill may be made payable at a banker's, as it "facilitates our discounting the bill:" and, though the bill had already been accepted before J. R. & J. Alexander received this request, they promise to observe it in future; so that it is clear that the bill was intended by both drawer and acceptor to be negotiated by Spencer Ashlin & Co., and to be their property, and was not sent merely to be handed over by them to A. Ralli & Co. Against this is to be set the form of the advice note, which, being a lithographed form used by Spencer Ashlin & Co. in all their transactions, is expressed as if they were brokers buying for a principal; and the language of the order *of J. R. & J. Alexan[*298 der, and of the invoice sent to them, which state that it was a purchase on account of J. R. & J. Alexander. But this is merely verbal criticism; the substance shows that it was a sale and subsale; indeed, if it were otherwise, there would have been a gross fraud in Spencer Ashlin & Co. in charging an advanced price. Had all the parties continued solvent, A. Ralli & Co. could not have sued J. R. & J. Alexander; nor could J. R. & J. Alexander have resisted an action by Spencer Ashlin & Co.; for, whenever a purchase is made on behalf of a foreign merchant, credit is necessarily given exclusively to the home merchant, (a) See notes to S. C. in 1 Smith's Lead. Ca. 431.

who is a vendor to the foreigner, though adding a commission; Smyth v. Anderson, 7 Com. B. 21 (E. C. L. R. vol. 62), Paterson v. Gandasequi, 15 East, 62, Thomson v. Davenport, 9 B. & C. 78 (E. C. L. R. vol. 17). Ireland is, like Scotland, a foreign country within the meaning of this rule. Bovill, contrà.-The case very much depends upon the question whether Spencer Ashlin & Co. were purchasers from A. Ralli & Co., or merely brokers making a contract for them. As to that, the documents are produced; and they must speak for themselves. In the written contract, on 3d September, Spencer Ashlin & Co. state that the cargo is Sold by order and for account of Messrs. Antonio Ralli & Co. To our principals ;" and they charge the sellers two per cent. commission. And it was perfectly true that they had principals; for J. R. & J. Alexander had given them an order, on 28th August, "to take for us two cargoes of Ibraila." This is not an offer to buy from Spencer Ashlin & Co. as vendors, but an order to that firm to buy as agents for them; and so *Spencer Ashlin & Co. understood it; for, in the letter *299] of 1st September, they write, "We have been unable to purchase anything more to-day in execution of your order." And, on the same day on which they send A. Ralli & Co., the advice note stating that they had sold the cargo for him to their principals at 24/6, they write to J. R. & J. Alexander, "to advise having purchased for your account the cargo of Bulgarian Indian corn per Cleopatra at 24/9 per quarter C. F. & I., which is 3d. per quarter over your limit for Ibraila, but is proportionably cheaper :" and in a postcript they tell who was the seller: « A. Ralli & Co. is one of our best sellers." A. Ralli & Co., in their books and in the invoice, debit Spencer Ashlin & Co.: but they debit them with the price after deducting two per cent. commission; and the letter of indemnity explains how that was. One per cent. was for a commission of guarantee; the other one per cent., though this is not expressly stated, must have been the commission on an ordinary sale. It was quite natural that the vendor should debit the del credere broker. In the written points delivered it is said that, because Spencer Ashlin & Co. represented to J. R. & J. Alexander that they had bought at 24/9, whereas in truth they had bought at 24/6, the action is undefended as to the extra 3d. But such a representation was a fraud. [WIGHTMAN, J.-In the case as you put it, that Spencer Ashlin & Co. were agents for J. R. & J. Alexander, they might have said "We have bought at 24/6, which together with our commission of one per cent. makes it equal to 24/9;" and that would have produced the same money result.] It might be so: but the account is not so made out. But, in whatever way that extra 3d. may be explained, the transaction is one *of a broker del credere; and the *300] fact that an agent has a del credere commission does not affect the right of the principal to enforce the contract; Story on Agency, s. 420. [Lord CAMPBELL, C. J.-But does not the principal, by taking a del credere engagement from an agent, authorize that agent to get pay. ment from the other principal in any way he pleases? And, if so,

might not Spencer Ashlin & Co., even if only del credere agents, still take the bill?] If they were authorized to take a bill, the bill would belong to the vendors A. Ralli & Co., not to the assignees of the bankrupt factor; Ex parte Dumas, 1 Atk. 232, Scott v. Surman, Willes, 400. Supposing that a merchant in Ireland is to be considered a foreign principal, the mercantile rule of giving credit exclusively to the home agent is for the benefit of the vendor not of the agent: but in Thompson v. Davenport, 9 B. & C. 78 (E. C. L. R. vol. 17), the vendor recovered against the principal though resident in Scotland. The correspondence after the stoppage of Spencer Ashlin & Co. ought not to have much weight. The parties then were seeking how they might best save their money; and they by mistake thought that they could stop in transitu. They did, no doubt, by their conduct make evidence that the sale was to Spencer Ashlin & Co.; and, if there had been no other evidence, that should have prevailed: but the real transaction appears.

(He admitted that the averment that the bill was not to be negotiated was not proved, but prayed leave to amend under the power reserved in the case. Some discussion ensued as to the manner in which the plea *should be amended; ultimately it was amended as stated, ante, p. 284.)

[*301 Bramwell, in reply.-As the plea is now amended, the case seems to be put in some such way as this: though the bill was given to Spencer Ashlin & Co., that he might discount it, and though he, whilst sui juris, might lawfully use it as his own, yet as soon as he failed there arose a trust for A. Ralli & Co. But that is not law. When a sale is made by an agent for a bill which he holds in trust to hand over to his principal' in specie, or to apply it to any special purpose, then, on the agent's bankruptcy, the bill does not pass to the assignees, except as being in the order and disposition of the bankrupt; and on that point of order and disposition the earmarking of the bill is most material; that is the principle of Ex parte Dumas, 1 Atk. 232, and Scott v. Surman, Willes, 400. But in the present case the bill was expressly given for the purpose of being discounted: it belonged to Spencer Ashlin & Co. till their failure, and then passed to the assignees, who must recover on it unless the consideration has failed. As to that, the residence of J. R. & J. Alexander in Ireland is most material. It is the universal custom that, in dealings by a commission merchant for a foreign constituent, credit is exclusively given to the commission merchant: and this is done, not merely because the home vendor will not trust the foreigner, but because the foreigner desires to be able to pay his correspondent as may be convenient, which he could not safely do if his own credit were pledged. In *Poirier v. Morris, 2 E. & B 89, 101 (E. C. L. R. vol. 75), Crompton, J., explains this. He says: "There are very many mercantile cases in which a person is employed as an agent to buy, (a) See Wilson v. Zulueta, 14 Q. B. 405 (E. C. L. R. vol. 68).

VOL. III.-26

[*302

but without any authority to pledge his principal's credit. In the ordinary case of a Liverpool merchant purchasing cotton at New Orleans, the constant custom is to write to his correspondents there to buy cotton for him on commission. The New Orleans house buy as the Liverpool merchant's agents; they charge him the cost price and a commission for buying the cotton for him; but they cannot pledge his credit for the cotton. They must buy it on their own credit, or pay for it out of their own funds." Now, if a London merchant acting for a Londonderry house is in the same position as a New Orleans house acting for a Liverpool one, every document in this case is explained at once. Spencer Ashlin & Co. were buying as agents for J. R. & J. Alexander; and they charged them the cost price, adding a commission of 3d. per quarter; but they had no authority to pledge the credit of J. R. & J. Alexander; and they did not do so. The corn was obtained on Spencer Ashlin & Co.'s own credit: A. Ralli & Co. properly debited them with the price; and J. R. & J. Alexander, who were debtors to Spencer Ashlin & Co., properly accepted their draft, which they must now pay to their assignees. Cur. adv. vult.

Lord CAMPBELL, C. J., on a subsequent day in this term (January 81st), delivered the judgment of the Court.

*We are of opinion that the plaintiffs are entitled to recover. *303] If this decision operates a hardship upon Antonio Ralli, who has indemnified the defendants, he has himself to blame for entries in his books, and letters written by him, giving an untrue account of the transaction out of which the bill of exchange declared upon originated. The question is, whether we are to consider that the cargo of the Cleopatra was sold by him to the defendants through Ashlin as his agent, or that he sold the cargo to Ashlin, and that Ashlin resold it to the defendants.

Upon the former supposition, the fourth plea would be established; and, the bill accepted by the defendants for the cargo of the Cleopatra remaining in Ashlin's hands down to the time of his bankruptcy, the property in it would not vest in his assignees, as he held it only as trustee for Ralli, nor could the assignees recover the price of the corn as for goods sold and delivered. The plaintiffs indeed have said that, as to the difference between the 24/6 and 24/9 a quarter, this is an undefended action; but, although Ralli might not be entitled to recover more than at the rate of 24/6, if the corn never was the property of Ashlin his assignees cannot sue for any part of the price of it; for the fraud which he perpetrated in charging the defendants a higher price than that at which he had purchased as their agent could vest no right of action in his assignees.

On the other hand, if this was a sale by Ralli to Ashlin and by Ashlin to the defendants, the fourth plea is not supported; there was no right to stop in transitu, on Ashlin's insolvency, after the resale and

the bill of lading had been endorsed to the defendants; and the *assignees are entitled to recover on the bill of exchange.

[*304

In coming to the conclusion that this was a sale by Ralli to Ashlin, we wish it to be understood that in this case we attach no weight to the circumstance that the defendants resided at Londonderry, and for some purposes might be regarded as foreigners. We do not think that the class of cases headed by Paterson v. Gandesequi, 15 East, 62, have any application to such a dealing; and we should have arrived at the same conclusion had the defendants resided at Plymouth or Newcastle upon Tyne. We are influenced by the written documents evidencing the transaction, which, we think, satisfactorily show that Ralli treated Ashlin as the purchaser of the corn, and looked to him exclusively for payment. Ashlin was certainly supposed by Ralli to be selling the corn to a purchaser at the price for which Ralli was credited, Ashlin receiving no profit beyond a commission: and he made the defendants believe that he charged no more than the price at which he purchased in the market. But still he was considered by Ralli as the purchaser, and by the defendants as the vendor. Although the sold note in the lithographed form has the aspect of Ashlin being only a broker, by "our principals" Ralli seems to have understood Ashlin himself; for in his own books he immediately made an entry stating that Ashlin was indebted to him for the cargo of the Cleopatra, in the common form as if Ashlin had been the purchaser; and, along with the bill of lading and shipping documents connected with the cargo, he sent to Ashlin an invoice of which the following is a copy.

"Messrs. S. Ashlin & Co.,

* London, September 3d, 1851.

Bought of A. Ralli & Co.

[*305

The cargo of Indian corn per Cleopatra, Captain Saliaris @ Ghia

cetti, as per bill of lading, dated 10th July,

14,000 kilos. I. corn at 816kos. per 100 qurs., equal to

1715g quarters, at 24/6 per quarter C. F. & I.

Charges.

Freight on 1715 quarters at 9/3 per

£2101 12 10