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in that case, said, that the claim of G., K. & Co. to a lien on the goods did not rest upon the letter alone, emphatic as was the expression contained in the postscript, "for," he observed, "when we come to the bill itself, we find also these words, which place to account of shipments per Gardner.' Now it appears to me, that, as between drawer and drawee, this was a specific appropriation of particular funds for the payment of the bill;"

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and," he added, "the interpretation which I think most consistent with justice, most consistent with fair dealing, and with mercantile custom, is, that the bill should be paid out of the shipments by the Gardner." Now, we beg to call in aid that reasoning to the present case. Here, in the body of the bill the words occur, "goods per Bewlah," on account of which it purports to be drawn. [The Lord Chancellor. There is a distinction between that case and this. Here the letter of the 28th June 1841 from G. Boggs, enclosing the bill, says, "of course Boggs & Co. will put you in funds for this draft; it being understood, we mutually keep each other out of cash outlay, in our transactions with your house in China."] Ex parte Waring (a), and that class of cases, are authorities for exercising an equity in favour of bill-holders, which would not arise if the parties had continued solvent.

Mr. Anderdon, and Mr. Mylne, on the same side. With respect to the 50007. remitted to China for investment in the purchase of goods there by the Canton house, to be consigned by them to England,—there is no question but that this must be dealt with as a joint adventure; and there is also no question as to the identity of any

(a) 2 Rose, 182; 19 Ves. 345.

1843.

Ex parte GEMMELL and others.

1843.

Ex parte GEMMELL and others.

of the returns of the produce of the silks shipped by the Canton house. Now, in the common case of a joint adventure for the purchase of goods, it is consistent with the acknowledged principles of equity, that neither party should profit by the proceeds of the adventure, until each has indemnified the other for the price of the goods purchased. In the present case, therefore, the funds arising from the proceeds of the silks are liable to discharge the outlay incurred by the price. The agreement between the parties was, that Gemmell & Co. were to keep the bills current, until funds came home for the payment of them. In Ex parte Prescott (a) the expression in the letter of the party who drew the bills is nearly the same as in the present case, the drawer there engaging "to renew the bills until funds came round;" and it really seems quite impossible to distinguish that case from this. In regard to the bill for 1500l. drawn by G. Boggs on Gemmell & Co., that was an isolated and distinct transaction, except as it may show what the understanding of the parties was, as to the provision for the payment of the bill for 50007. in the first transaction.

Mr. James Russell, Mr. L. Wigram, and Mr. Tennant, for the respondents. None of the cases cited by the other side have any bearing upon the question in this case. They affirm nothing but the law of partnership and of lien, as recognized in Ex parte Waring (b). In Er parte Prescott (a) it was a special partnership; but if you throw out entirely the question of partnership, there was in that case a specific agreement, that the bills should be paid out of the return proceeds, when they

(a) 3 Deac. & C. 218.

(b) 2 G. & J. 404; 2 Rose, 182; 19 Ves. 345.

should arrive. It is a mistake, therefore, to suppose that the question in that case arose on the construction of the letter. In that case, as well as in Ex parte Copeland (a), it is clear that the goods were to be applied to discharge the joint liabilities. In the present case, there is an absence of any expression in the correspondence between the parties, that can possibly raise a contract for a lien on the goods for the payment of the bills. Here each party lends his name to the other to raise the sum of 10,0007.; one bill Gemmell & Co. were to provide for; the other Boggs & Co. were to provide for. Neither of the parties here gives the other the slightest control in the management of the transaction, or the application of

the funds.

The LORD CHANCELLOR.-The expression in the correspondence relied on by the other side is, "that the bills were to be renewed, until the funds came home," and "to save cash outlay by renewing the bills, until bills of lading are received from China." But is the transaction more than this-we want to raise this money, without making any cash advances, providing for the payment of the bills, as soon as the arrival of the goods from China will enable us to do so? Then with regard to the 15007. bill, besides the expression in the bill, they rely on the expression contained in the letter of Gemmell & Co. of the 29th September 1841, wherein they say, "We enclose a bill for 1500l. drawn against goods per the Bewlah." Now what is the meaning of the word "against" in commercial transactions? If I send goods from India to England, and draw against the goods, I

(a) 3 Deac. & C. 199.

1843.

Ex parte GEMMELL and others.

1843.

Ex parte GEMMELL and others.

draw on the consignee to accept bills in respect of my own goods thus consigned to him.

Mr. L. Wigram, and Mr. Tennant. They say also on the other side, that the inducement for Gemmell & Co. to renew the bills, was, that they were to have a lien on the return cargo for the payment of them. We wholly deny that any portion of the correspondence warrants that construction. The inducement for the renewal of the bills was, merely, that each party should render accommodation to the other.

Mr. Anderdon, in reply.

Westminster,
Nov. 13.

Cur. ad. vult.

The LORD CHANCELLOR.-This was an appeal against the decision of Vice-Chancellor Knight Bruce, acting as Chief Judge of the Court of Review. The facts of this case are shortly these. Gemmell & Co. the petitioners, were merchants at Glasgow, and Boggs, Taylor & Co. at the same time carried on business in London. W. & T. Gemmell & Co. also carried on a separate business at Canton, in China. By an arrangement made partly by correspondence, and partly by personal communications, it was proposed that Messrs. Gemmell & Co. of Glasgow, should draw bills for the amount of 10,000l. on Messrs. Boggs, Taylor & Co., which being accepted by them, the discount of them should be procured by Messrs. Gemmell & Co. of Glasgow. This was accordingly done; the bills were drawn, and the discount of them on behalf of Boggs, Taylor & Co., was procured by Messrs. Gemmell & Co of Glasgow. The money thus obtained, was divided into two portions of 50007. each, one of which

was retained by Gemmell & Co. of Glasgow, and the other received by Boggs, Taylor & Co. The object of each house was to send the money through India to Canton, to be laid out there by W. & J. Gemmell & Co., as the agents of Gemmell & Co. of Glasgow. The Glasgow house agreed to save any cash outlay, by renewing the bills so drawn on the London house, till bills of lading were received from China as remittances for cash amount, the London house giving instructions to the Canton house for the investment of their moiety, and the Glasgow house doing the same for theirs. Thus each adventure was a distinct transaction; the only stipulation being for the benefit of the Canton house, who were to lay out the money. The goods, which were purchased with the proceeds of the bills in China, were accordingly transmitted from thence to England, one portion to the Glasgow house, and the other to the London house. On these goods advances were made by W. & T. Gemmell & Co. of Canton, both to Gemmell & Co. of Glasgow, and to Boggs & Co.; but from the time of the division of the fund, neither house interfered with the disposal of any part of it, except its own portion. There was nothing in the original transaction to give either house a lien on the goods purchased, nor is there anything in the subsequent correspondence between the parties to show their intent that such lien should be created. Reliance has been placed on the wording of the third article contained in the letter from the Glasgow house of the 19th January; where it is said, that the outlay of money was to be saved to either party, by the Glasgow house negotiating their drafts upon Boggs & Co., and renewing them till the funds came home. But there was no

appropriation of the goods to the discharge of the bills,

1843.

Ex parte GEMMELL

and others.

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