PROB.] CRISPIN v. DOGLIONI-In the Goods of MATTHEW COTES WYATT. R. Searle for the husband.-The general rule laid down in Harris v. Harris is not applicable to this case. The reasoning there was, that the policy was capable at any time of being converted into money, but this policy is not under the husband's control. He can derive no benefit from it, and he is obliged to pry the premiums. Cur. adv. vult. CRESSWELL, J. O. held, that the husband was entitled to deduct the annual premiums from his income, and allotted alimony accordingly. rule of the Ecclesiastical Courts not to allow deductions I will dated April 28, 1847, with certain interlineation for premiums upon life insurances. and cancellations, some in ink and some in pencil; another will, dated May 3, 1847; and a codici, przporting to be a codicil to the will of April 28, 1947, dated Sept. 1854, and which was executed on the 8th or the 9th Sept. in that year. It appeared that the testator in the year 1847 had requested personal friend of his (Mr. John Sheringham), th retired solicitor, and who died in his lifetime, to prepare him a draft will, which he accordingly did. On the 26th April 1847 a copy of this draft will was mAJE E the office of Mr. George Adams, of the Middle Temple lane, law stationer, by the direction of the testator, is appeared by an entry in his books by G. Macdonald, who was then in Mr. Adams' employ. This copy the testator duly executed on the 28th April 1847, in the presence of two of his clerks, Mr. Thomas Evitt and William James Chambers. Nicholl, proctor for petitioner. COURT OF PROBATE. Reported by Dr. SWABEY, of Doctors'-commons. Tuesday, Dec. 17. (Before Sir C. CRESSWELL.) Testamentary suit—Issues—Mode of trial-20 & 21 The court has the power to direct issues of fact to be This was a testamentary suit. The deft. was one of the surviving residuary legatees under the will of Henry Crispin, deceased. The plt. claimed to oppose the will, and in pursuance of an order of court had filed a declaration, setting forth his interest to be admitted so to do. To this the deft. had pleaded. By the pleadings several issues were raised. One of them only was a question of fact, viz. whether the plt. was the natural son of Henry Crispin. The others were questions of law. Hannen, for the plt., now moved the court to order that the issues should be tried before the court. Dr. Spinks, for the deft., asked that the issue of fact might be tried before the court by a special jury, and the issues of law by the court itself. Sir C. CRESSWELL, after referring to the 20 & 21 Vict. c. 77, s. 35-" It shall be lawful for the Court of Probate to cause any question of fact arising in any suit or proceeding under this Act to be tried by a special or common jury before the court itself," &c.-directed that an issue, "Whether the plt. was the natural son of Henry Crispin," should be tried by a jury before the court, and the remaining issues by the court. Fielder, plt.'s proctor. Tuesday, March 18. In the Goods of MATTHEW COTES WYATT, deceased Probate decreed of the draft will of April 1847, in- On the 3rd May 1847 the will of the 28th Ap was engrossed at Mr. Adams' office by the direction of the testator, and the said G. Macdonald, who mad the engrossment, stated on affidavit that to the best of his belief he copied the engrossment from the will dated the 28th April 1847. Upon a comparison of the engrossment with the former will, it appeared that it corresponded with the former will as altered by the interlineations and oncellations in ink, but not as altered in pencil. I appeared by the affidavit of Mr. Evitt, one of the attesting witnesses to the first will, that from the manner in which it was executed neither of the attesting witnesses could see whether it then contained any interlineations or cancellations. In Sept. 1854 the testator executed a codicil written by himself, and commencing thus :-" I write this as a codicil to my last will and testament, made in the year 1847, and signed on the 28th April in that year, and witnessed by Thomas Evitt, of Champion-grow, Camberwell, and William Chambers, of No. 30, Upper Seymour-street, Portman-square.” After the death of the testator, the codicil nå engrossed will were found in a wooden box which had generally been in the custody of his bankers, and tie draft will of the 28th April 1847 was found in a drawer wherein he kept draft leases, deeds and agre ments. The rough draft from which the first will was copied could not be found. Dr. Tristram moved the court for probate of the draft will dated the 28th April 1847, as altered in but not as altered in pencil, with the codicil, to s granted to H. L. Sharp and W. Ellis, two of the executors named in the will. There might be greas for suggesting that the testator intended the codici to be a codicil to the second will; but, assuming that be made a mistake in the reference, it was so precise tas he apprehended, after the previous decisions, it would be useless to ask the court for probate of the second will. Sir C. CRESSWELL.-Certainly I could not g probate of the second will. How do you propise t show that you are entitled to ask for probate of the first will as altered in ink? Dr. Tristram.-Macdonald, in whose handwriting both the wills are, says that to the best of his belle de copied the second will from the first one, and, on con paring them it will be found that the second l agrees with the first as altered in ink, but not as akterd in pencil. The alterations in ink must therefore bare been made prior to the 3rd May 1847 (the date of the execution of the second will), and so must have beca in existence when the codicil was executed in 1854. Sir C. CRESSWELL.-I will grant probate of the draft will of April 28, 1847, including the alterat in ink, in so far as they agree with the engrossed d of the 3rd May 1847, with the codicil of Sept. 1854. Solicitors, Upton, Johnson and Upton. C BANK.] [BANK. Re WILLIAM WYATT-Re ANON-Ex parte CASTLETON, re CASTLETON. COURT OF BANKRUPTCY. Reported by D. C. MACRAE, Esq., Barristers-at-Law. Thursday, July 10. (Before Mr. Commissioner FANE.) Re WILLIAM WYATT. Where delay has occurred in proceeding with the necessary steps of a bankruptcy, the court will allow the original petition to be dismissed, on the parties undertaking to file forthwith a new petition complying with all the usual formalities. The bankrupt had himself filed a petition for adjudication of bankruptcy on the 3rd March 1862, but had only proceeded to file the preliminary statement and list of creditors. Having failed to lodge the necessary fees with the messenger the matter was not advertised, and no first meeting was appointed. Terry now moved for leave to dismiss the original petition. The parties were prepared to file forthwith a new petition, and to comply with all the usual formalities, and to append to the proceedings a memorandum to this effect. Application granted. A debtor who had executed a deed of inspection, under which he agreed to pay a composition, applied to be discharged from custody: of these acceptances were sold by the assignees of Laurence and Mortimore under their bankruptcy, and realised only 4831. The petitioners under these circumstances claimed a right to follow these goods, and have the proceeds paid to them in reduction of the amount of their proof upon these three bills. It further appeared that in Oct. 1860 Messrs. Raine effected an arrangement with their creditors, paying 6s. in the pound. This composition was received by the petitioners, who had also received a dividend of 2s. 6d. in the pound under the bankruptcy of Laurence and Mortimore, without prejudice to any claim they might have as against the goods. Bagley, for the petitioners, contended that his clients, as purchasers, were entitled to have the proceeds of the goods applied in payment of the bills, and cited Inmann v. Clare, 32 L. T. Rep. 353; Ex parte Waring, 2 G. & J. 404; and Powles v. Hargreaves, 3 De G. M. & G. 430. De Gex, for the assignees, contended that the consignments were not made on account of the particular bills in question. The equity of the bill-holders to be paid out of the proceeds of the insolvent estates was founded upon the equities of the parties themselves inter se, and did not arise as between them and the outer world. In the present case it must be assumed that Laurence and Co. were the sureties, and Raine and Co. the principal debtors. These latter had been released, and consequently Laurence and Co., the sureties, were released also. There was a large balance due to Laurence and Co. They had an absolute right to the goods. Held, that composition deeds not being within the 192nd section, the court had no jurisdiction. Mr. Commissioner HOLROYD.-The court has only This was an application by a debtor in custody, sup-to consider the arrangement between the parties. That ported by Linklater. His HONOUR declined to entertain the application, or to order the discharge, in consequence of the decision of the Court of Ex. in the case of Walter v. Adcock, 6 L. T. Rep. N. S. 583, in which it was held that to bring a deed within the 192nd section of the statute so as to bind the creditors, it should contain an assignment of the debtor's property. Reported by A. A. DORIA, Esq., Barrister-at-Law. arrangement was that the goods consigned should be sold by Laurence and Co., and that out of the proceeds of those sales from time to time the bills of Messrs. Raine and Co. should be paid. I do not think that the circumstance that the goods in hand at the time of the failure were not equal in amount to the acceptances, is at all material, or in any way alters the nature of the transaction. The holders of the outstanding bills have a right to require that these goods shall be applied in discharge of the bills so far as they will extend. The case of Inmann v. Clare establishes this principle, namely, that goods placed in the hands of a broker who accepts bills against the goods are sacred for the discharge of the debt so incurred. As to the other point respecting the arrangement made by Raine and Co. with their creditors, and the steps taken by the petitioners under that arrangement, I do not The holders of bills of exchange which are drawn think that there is anything in that. The order will against consignments are entitled to have the pro-be the same as in Ex parte Waring. The petitioners ceeds of the consignments applied in liquidation of will have their costs out of the estate. their claims in respect of the bills. Ex parte Waring, 2 G. & J. 404, followed. Friday, June 27. (Before Mr. Commissioner HOLROYD.) Ex parte CUNLIFFE AND Co., re STREATFEILD, LAURENCE AND MORTIMore. Lien-Bills drawn against goods—Holders entitled to have proceeds applied in payment. Lien. Messrs. Cunliffe and Co., bankers, the petitioners in this matter, conjointly with Messrs. Wormersley and Co., bill brokers, presented their petition, praying that they might be declared entitled to receive from the assignees of Laurence and Mortimore, bankrupts, the proceeds of certain parcels of leather which had been consigned by Messrs. Raine and Co., of Kendal, to them as factors for sale in the London market. Messrs. Raine and Co. were in the habit of consigning leather to Laurence and Mortimore as factors for sale, drawing upon them from time to time against their consignments. The firm of Laurence and Mortimore suspended payments in the summer of 1860, and at that time the amount of bills accepted by them was considerably in excess of the value of the leather so consigned. Three of these bills, of the respective amounts of 1000l., 850l. and 750l., were in the hands of the petitioners, who had discounted them for Messrs. Raine and Co. The consignments of leather in respect July 1862. Ordered accordingly. (Before Mr. Commissioner Goulburn.) Ex parte CASTLETON, re CASTLETON. Release from custody-Trust-deed by one of three partners-Arrest under judgment against the three not entitled. A. being in partnership with two other persons, with whom he is jointly indebted, and in respect of which debt an action is brought against the firm, executes a trust-deed in his own nume as a sole trader, without referring to his being in partnership. After registration the creditor obtains judgment in his action against the three, issues execution, and arrests A.: The Court declined to interfere, upon the ground that the plt. in the action being a joint creditor, was not bound by the deed which was of the separate estate only. Release from custody.-The debtor, being in partnership with two other persons, and having incurred a Exple Smith re Smith & Layton L.T.NS. 239. BJ BANK.] Ex parte BELLAMY, re PARTRIDGE AND EDWARDS. debt of 70%. jointly with them to one Merrifield, the latter commenced an action against them on the 8th May 1862, in which he subsequently recovered judgment and issued execution. Previously to this, however, the debtor had executed a trust-deed, under the 192nd section of the Bankruptcy Act 1861, in his own name as a sole trader, and without referring in any manner to his copartnership. After the deed was duly registered Merrifield, the judgment-creditor, caused him to be arrested, and now the debtor applied for his release from custody under the 112th section of the Consolidation Act 1849. The following table of dates may be useful:1862. May 8. Writ issued against the debtor and his copartners to recover the sum of 70% upon their promissory note. May 26. Leave to appear. May 27. Defts. appeared to the action. Twice adjourned at the request of the defts.' at- June 9. Trust-deed executed by Castleton. June 23. Summons for defts. to show cause why Consent by defts.' attorney. June 24. Judgment in action signed. Plt.'s costs to be June 30. Castleton arrested notwithstanding he pro- Dowse opposed the application. Mr. Commissioner GOULBURN.-I should err greatly if I released the debtor in this case. It seems to me that the protection obtained under the certificate of registration of the deed was not available as against this creditor, and for this reason, that the debtor was guilty of a suppressio veri in reference to the deed. The debtor's attorney consented to the judgment being signed without mentioning or in any way referring to the deed in question. The costs were subsequently taxed at 147, but still no mention was made of the deed. The fact of the execution of the deed is kept entirely in the dark; but it is said that notice of the execution of the deed was given in the London Gazette. That may be, but in my opinion that amounts to nothing. I found my decision in this case upon the fact that the judgment was against the three debtors as copartners, and not against the one only, so that the creditor of the partnership is not, in my opinion, bound by a deed which is executed by one of the debtors in his individual capacity of all his separate estate and effects, without reference to either his partnership, his partnership debts, or his partnership assets. I do not think that a debtor is, by a deed of this description, relieved from the consequences of a judgment obtained against him as a member of a firm jointly with his copartners. Wednesday, July 9. (Before Mr. Commissioner GOULBURN.) Ex parte BELLAMY, re PARTRIDGE AND EDWARDS. Money deposited with a member of a firm of solicitors to invest upon mortgage, and by him, without the cognisance of his copartners, invested upon the security of a sum of Consols, which he knew at the [BATL time had ceased to exist, is not a debt provedle s against the separate estates of the continuing partus upon their bankruptcy subsequent to his retireme Proof. The bankrupts were attorneys, carrying n business at King's Lynn, in Norfolk, and also in Loniz in partnership with C. Goodwin (since deceased) mil. C. Williams, under the style of Goodwin and Ca, d to the end of 1859, the London business being comin by Williams. In April 1856 the Misses Bellamy, deta of the firm, deposited with Williams 400 to ins for them upon mortgage, and in Dec. 1857 they på him 100%. more for the same purpose. A mange deed was executed to them upon the occasion of t first advance, and a second mortgage by way of furtiz charge indorsed thereon upon the occasion of the sent advance, with interest reserved in each case at 6 cent., which was paid regularly by cheques signed Williams in the name of the firm, down to April 1961. The mortgage property was represented to be a sund Consols standing in the names of Williams sad m others, as trustees under the will of the Rev. J. Miss in trust for legatees, but which had been sold out in Ja 1855, and the proceeds paid into the bankers of firm to their account, and entered in the books of the firm to the credit of the trustees under the will s cash, however, remained in the hands of the firm, though in the mortgage-deed it was treated as a of 29031. Os. 4d. Consols then in existence, and the security was made to extend over it and the stat, funds and securities upon which the said legacy sh from time to time be invested. Williams subsequen retired from the firm, which became bankrupt upon t petition of a creditor on the 14th Oct. 1861. A proof was now tendered embodying the sk facts on behalf of the Misses Bellamy for 500 interest at 61. per cent. from April 1861, in respect their advances against the separate estates of the barrupts. Kimber (solicitor) appeared in support of the pre Sargood, for the assignees, opposed the proof p the ground that a fraud committed by one member a firm could not be charged as against the firm. Mr. Commissioner GOULBURN.-In this case spre is sought to be placed upon the proceedings by the ladies, under these circumstances. The money vanced by these ladies to Williams, to be laid out mortgage, was not misapplied, but was actu paid by him to the purpose for which it was intended by the lenders. This, therefore, is not a case of a pat professing to lend money upon mortgage, and the appropriating it to himself, Williams having lent t money to the Missings. The mortgagee took vis he calls a security, and it was in giving this security to those ladies that the wrong done to them cost The instrument professes to give a charge p a certain amount of Consols, he (Williams), the time he delivered it, knowing perfectly all that the money was no longer in the funds; that it been dealt with by him in the name of t firm, and in a manner in which the firm was clea responsible for it, and that it could not form the subject of a charge, because it did not exist for such purpose. Therefore Williams was giving to the ladies what he knew in fact to be no better ti waste paper. It cannot be said that the security s altogether worthless, because there were the pe sonal covenants of the mortgagors. It seems that the are wholly unable to pay the amount, but still legally there is the security of this covenant of the mortgag But the charge upon the consols was worse th for no such fund existed. However it is endeavoured to make the account in the books of the firm look an account with Missing, the fact is that the fund sold out by the trustees, of whom Williams was and the proceeds appropriated to the firm, and thei in no way discharge themselves from that BANK.] TAMVACO v. LUCAS AND OTHERS. [Ex. CH. duct, as an attorney advising a client to take a security which he knows to be bad, is not such an act as will entitle the party advancing the money to prove against the separate estates of the other members of the firm. I am therefore compelled to reject this proof. Proof rejected. EXCHEQUER CHAMBER. Reported by C. J. B. HERTSLET, Esq., Barrister-at-Law. ERRORS FROM THE QUEEN'S BENCH. Thursday, June 19. (Before ERLE, C.J., POLLOCK, C.B., WILLIAMS, J., MARTIN, B., BYLES, J., CHANNELL, B., and WILLES, J.) TAMVACO v. LUCAS AND OTHERS. Shipping Sale and purchase of cargo—Shipping documents. Williams therefore is guilty of the fraud of appro- | fact it is not worth the parchment upon which it is priating the fund, of having turned it from its proper written. In Blair v. Bromley the money was approuse to his own individual benefit. That being so, he priated by the partner to his own use. Here it was must have known when he gave these ladies a charge appropriated by Williams in the way he said it would apon the fund as still being in the Three per Cent. be. Then there is the case of Coomer v. Bromley, 5 Consols, that he was giving them what was worthless De G. & Sm. 532, which seems to bear the other way. is a security. That was a very gross act of mis-In that case I do not think Bromley pretended that he conduct on his part, and for which he would have been had invested the money. It found its way to the responsible as an attorney, and perhaps the other credit of the firm at their bankers as this did; but it meinbers of the firm, though ignorant of it, might was not invested upon mortgage as pretended; that is, have been made answerable in an action against them if what was said to be done was not done. All the cases there had been no bankruptcy. But the case goes further. seem to show this, that where money has been entrusted The applicants seek not only to make the other mem- to a man who misapplies or misappropriates it, the pers of the firm responsible, but to treat this as a debt principles holds good that each member of the firm, contracted by Partridge and Edwards with them. I though ignorant of the fraud, yet, having the means of very much wish I could hold that it is so, but I can- knowledge, is clearly responsible for the acts of his conot bring the case within the principle of the authori-partner. But the principle here is, that mere misconties that have been cited. The cases are very well put together in Lindley's book on Partnership, vol. 1, p. 240, where he lays down this principle: "Where one partner acting within the scope of his authority, as evidenced by the business of the firm, obtains money and misapplies it, the firm will be answerable for chat." But where a firm in the course of its business receives money belonging to other people, and one of the partners misapplies that money whilst it is in the custody of the firm, the firm must make it good. He then cites cases some of which differ very much. It is difficult to reconcile the case of Harman v. Johnson, 2 Ell. & Bl. 61, with that of Willett v. Chambers, Cowp. 814. Now, first of all, was Williams acting within the scope of his authority as evidenced by the business of the firm? I think he was, and that there is quite evidence of that. In Willett v. Chambers Dudley had the money and misapplied it. But that is not the case here. This is not a case of misapplication of the money, but the point is, whether it was within the scope of his authority, as evidenced by the business of the firm. Lord Mansfield says, in that case, "It is necessary to see what the business was which Dudley carried on alone before his connection with the deft. in the year 1776;" and he then states the nature of Dudley's business as a conveyancer. "But," says his Lordship," he did not act as a scrivener, who sometimes does not touch the money, but who in all cases gets procuration money. There is no proof of any transaction of that kind, nor indeed is it customary for attorneys like him to do so, for they get profit enough without it." So far then I think I am borne out in saying that this money was received by Williams acting within the scope of his authority, as evidenced by the business of the firm, which is, as Lord Mansfield states it to be, the ordinary business of attorneys, receiving money from their clients to place out on security. Now the question is, whether the money was misapplied in the way referred to in these cases. The money was not misapplied at all. It was paid to Missing who received the 400l. and the 100%. wrong done consists in this, that Williams being a solicitor, and advising these ladies, placed in their hands as a good and valid security a document that was not, to a certain extent, valid at all; and the question is, whether this conduct and misfeasance of the attorney is such as will make every member of his firm liable severally as for a debt proveable against their estates in bankruptcy. I cannot go that length; I think that would be going much further than any of the cases The case of Brydges v. Branfill, 12 Sim. 369, as well as that of Blair v. Bromley, 5 Hare, 542; s.c. on appeal, 2 Ph. 354, are clearly distinguishable from the present case, where the money was actually advanced, as Williains pretended it was, to Missing; but he tells a gross untruth, and scandalously advises these ladies, against all justice and truth, that he has a good security for them, when in will warrant. The A contract was made in London, by which plt. sold to defts. on behalf of D. a cargo of wheat, then unshipped, at 50s. per quarter, free on board at Taganrog, and including freight and insurance to any safe port in the United Kingdom; payment, cash in London, in exchange for usual shipping documents, less discount. The plts. having obtained a cargo afloat answering the requirements of the contract, tendered to the defts. the shipping documents and a provisional invoice which stated the cargo to be— 1850 quarters at 50s................£ 4626 0 0 Less freight, at 10s. 9d. per qr.... 1001 10 0 A 3624 10 0 policy of insurance tendered as one of the shipping documents was a valid policy on the 1850 quarters for 36001. Deft. refused to accept, and on the trial of an action brought against him on the contract, a question arose as to the sufficiency of the policy, and whether or no it was to be considered a shipping document within the contract : Held, that it was a question for the jury whether the policy tendered was a shipping document within the contract. This was an appeal against the decision of the Court of Q. B., discharging a rule to enter a verdict for the defts. The plts. were merchants in London, and the defts. were brokers, and this action was brought to recover from the defts. the price of a cargo of Taganrog Ghirka wheat, which they sold for the plts. under a del credere guarantee for the solvency and performance of the contract by the buyer, who afterwards became insolvent, and the defts. having refused to fulfil the contract which they had guaranteed, this action was brought. The first and only material count of the declaration averred that the plts. employed the defts. as their del credere agents, to make a contract for them, and the defts. did make a contract for plts., and delivered them a contract note as follows: “London, 25th Aug. 1857. Sold to our principal on account of Messrs. Tamvaco, Micrulachi and I Mavrogordato, a cargo of Taganrog Ghirka wheat, of fair average quality, of the season's shipment, at time of loading consisting of about 2000 quarters, say from 1800 to 2200 quarters, at the price of 50s. per delivered quarter of 492 lbs., free on board at Taganrog, and including freight and insurance to any safe port in the United Kingdom, calling for orders as usual. The wheat is to be shipped between the 1st Oct. and the 15th Nov. (New Style) in an A1 English, or a firstclass foreign vessel, not Greek nor Turk; and the vessel is to suffer no detention from ice. The measure, for the sake of invoice, to be calculated at the rate of 100 chetwerts equal to 72 quarters; sellers' guarantee, delivery of invoice, weight, sea accidents excepted. Buyers to pay for any excess of weight, unless it be the result of sea damage or heating. Payment, cash in London, in exchange for usual shipping documents, so soon as the vessel has got out of the Sea of Azoff less discount at the rate of 5 per cent. per annum for the unexpired portion of three months from date of bill of lading. Sellers guarantee to buyer a reasonable number of lay days for discharging. Commission, 2s. 2d., to be paid by sellers.-S. H. LUCAS and SONS." and according to the measure that each quarter vab At the trial at Guildhall, before Cockburn, C. J. m. By the terms of the contract, the payment was to he cash in London, in exchange for shipping documen (as soon as the vessel had got out of the Sea of Auf less discount at 5 per cent. per annum for the unexp portion of three months from the date of bill of l On the 14th Dec. 1857 the plts. handed to the det provisional invoice and tendered the shipping docume against payment of the amount. The following is a copy of the provisional ivoice : "Messrs. S. H. Lucas and Sons, London, 14th De 1857. To Tamacho, Micrulachi and Mavrogordas cargo of Taganreg Ghirka wheat, shipped per Gill, captain John Daniell, from Taganrog, cons of 2570 chetwerts, as per bill of lading. De Taganrog, 24th Oct. 1857 (0. S.) against contras ( 25th Aug. last. 5th Nov. 1857 (N.S.) 2573 chetwerts at 100-72 qrs. Qrs. 1850.-40-100 at C. F. and I. £& per qr. 50s. Less freight at 70s. per ......... 4626 01 ton for tallow is for at Taganrog 160 0 0 841 £3784 10 The policy of insurance tendered as one of t shipping documents was a valid policy for 3600 the documents, but simply refused to have anyt the cargo. Defts. did not look at the policy or That the contract was made by the defts. between the plts. and one Dart, who was the defts.' principal, and who is designated by them the buyer. That the defts. were employed by the plts. to make, and did make the contract on the terms, amongst others, that the defts., for certain commission payable to them by the plts., should be del credere agents, and should be responsible to the plts. for the solvency of, and the performance of the contract by, the defts.' unnamed principal the buyer; and should be responsible to the plts. for the payment of the price of the cargo accord-Less advanced to captain ing to the terms of the contract. That after the making of the contract Dart was declared by the defts. to be their principal; and afterwards and in due time the plts. were ready and offered to deliver to the defts., who then were agents for Dart, and to Dart, the usual shipping documents, according to the contract, of a cargo of wheat, such and so shipped as stipulated for in the contract, in exchange for the invoice price. Averment of performance of conditions precedent to their right to have the shipping documents accepted to do with him. In the end a verdict was found and paid for by Dart, and notice to the defts., and that the plts., subject to the opinion of the court up 2 Dart became insolvent, and has not accepted the docu-point raised as to the sufficiency of the policy, also the date at which the price was to be taken fr ments, nor paid plts. for the cargo. Averment of perforinance of conditions precedent to their right to purpose of estimating the damages. hold the defts. responsible for the solvency of and performance of the contract by their principal, and to hold the defts. responsible for the payment of the price. Breach, that the defts. had not, nor would perform the contract nor procure the same to be performed by Dart, nor had, nor would they pay, nor be responsible for the payment of the price of the cargo according to the contract, nor had they, or would they pay, nor be responsible to the plts. for the loss which they had sustained by the nonpayment of the price and nonfulfilment of the contract by Dart and by his insolvency. Pleas to the first count: -1. Denial that plts. employed defts. as their del credere agents and brokers, on the terins alleged. 2. That the defts. did not make a contract for plts. as alleged. 3. That plts. were not ready and willing to deliver, nor did they offer to deliver to defts. or to Dart the usual shipping documents, according to the contract, of a cargo of wheat, such and so shipped as was stipulated in the said contract, in exchange for the invoice price. 4. That the said cargo of wheat, of which the plts. were so ready and willing to deliver to the defis. the shipping documents, was, at the time it was shipped on board at Taganrog, and at all times subsequent, a cargo of wheat consisting of less than 1800 quarters, both aceording to the measure of 100 chetwerts equal to 72 quarters, show cause why the verdict obtained by them sh A rule having been obtained calling on the pla not be set aside and a verdict entered for the dets the ground that the amount of the policy of inser was not sufficient, or why, in case the verdict s stand for the plts., the damages should not be a for argument in due course, when the court below is on such principle as the court might direct, cant charged the same. Against this decision the deft. now appealed The judges in the court below went on the grou Honyman for the plts. in error, the defts, belt the plts. had no right to a policy to cover the car price. The issue is, whether they were ready and ing to deliver shipping documents. [EBLE, C was a question for the jury to decide, whether this shipping document to which you were entitled the contract.] We do not get what we contracte MARTIN, B.-I do not say you do; but surely is a question for the jury.] a Watkin Williams, contra, was not called on. ERLE, C. J.-We are all of opinion that they ment of the court below ought to be affirmed, that the question whether the document tendered a shipping document within the meaning of the tract was purely a question of fact for the jury. Judgment afirmed. |