*SITTINGS AFTER EASTER TERM, AT GUILDHALL. [*245

A messenger under a commission of bankrupt sues the assignees for his costs and expenses; and obtains a judgment against them. One of the assignees pays the debt and costs under the judgment. He has a right to an action of contribution against his co-assignee, and is not bound to show that any funds came into his hands from the bankrupt's estate.

THE plaintiff and defendant had been joint assignees under a commission of bankrupt.-A person of the name of Billings, who had been employed as messenger under the bankruptcy, brought an action against Hart & Biggs jointly for costs incurred in the prosecution of that commission. Billings obtained a judgment against both; and Hart, in order to prevent an execution against himself, paid the debt and costs. This was an action of contribution, to recover from the defendant a moiety of the money paid under the judgment.

Shepherd, Solicitor General, for the defendant, contended, I. That the plaintiff was not entitled to maintain the present action. It was admitted that Hart & Biggs were joint assignees; but unless the plaintiff could show an account stated and adjusted, one assignee cannot maintain an action against another. The present demand was a mere item in the account, and the plaintiff must wait till the whole account was liquidated. This is not like the case of sureties, where, if one surety *pay the whole debt, contribution is due from the other. 2. No assignee can call on his co-assignee, till he has shown [*246 that there are no effects from the bankrupt's estate. The claim of the messenger, which arises out of the bankruptcy, must be satisfied out of that fund; Hart even now may have in his hands effects beyond the debt claimed.

Best, Serjt., contra.—Whatever answer the defendant might have made to the original action, he has suffered a judgment to be obtained against him, and it is now too late to dispute his liability. The messenger does not speculate on the bankrupt's estate, but trusts to those who employ him.

GIBBS, C. J.-The assignees were trustees for the creditors: they employ a third person, to whom they become jointly responsible in his retainer; he sues both assignees, and recovers against both; but one pays the whole debt. I am of opinion that he may recover against his co-assignee a moiety, and is not bound to show that such co-assignee had any funds from the bankrupt's estate in his hands.

Best, Serjt., and Ross, for the plaintiff.

Verdict for plaintiff.

Shepherd, S. G., and Onslow, Serjts,, for the defendant.

The petitioning creditor is liable to the solicitor, for the expense of conducting the commission up to the choice of the assignees. Ex parte Hartop, 1 Rose's Cases in Bankruptcy, 449. But, as between the solicitor and the messenger, there is no implied contract on the part of the former to pay him his expenses: the solicitor is not to be regarded as his principal. In Hartop v. Jukes, 2 Maule and Selwyn 238-240, the Court of King's Bench decided, that the solicitor was not liable, in the first instance, to the messenger, whom he nominates, for his bill of fees: that the messenger, upon the opening of the commission, might ascertain who the petitioning creditor was, and that, although the solicitor was the medium through whom the messenger received his fees, that would not make him a principal.

But, as respects the assignees, and the messenger, the case is different. They have the distribution of the bankrupt's funds, with which neither the petitioning creditor nor the solicitor can intermeddle. They are directed by the statute, 5 Geo. II. c. 30. s. 25, to reimburse the petitioning creditor out of the first money they receive; and it is their duty, at the same time, to see that the messenger be paid. Thus, in ex parte Hartop, 1 Rose 449, the Lord Chancellor determined, that it was no objection to an application by a messenger, praying that the assignees might be directed by the court to pay him his bill of fees, that he had reglected to make a de

mand upon them till after a final dividend. "They ought," says his lordship, "to have known that they were indebted to the messenger. It was their duty to pay him; and the distribution of the funds, without having done so, is their own misconduct."

In Lingard v. Bromley, upon a petition to the Master of the Rolls, contribution was enforced Binongst assignees in bankruptcy, to reimburse a payment by one under an order, for a loss occasioned by their joint act; and the objection, that the defendant (the co-assignee) acted only for conformity, upon the representation and advice of the plaintiff, did not prevail. 1 Vezey and Beames, 114-118,

A., being in bad circumstances, goes to Glasgow, and obtains goods from B. paying for them by a bill upon a house in London, which house he knows to be insolvent. The goods are shipped at Leith; the invoice and receipt made out to A., and they are afterwards delivered to a wharfinger in London, who receives a notice from the original vendor (B.) to hold them for him.

A. becomes a bankrupt. In trover by A. against the wharfinger for the benefit of his assignees: held that B.'s right of stoppage in transitu was gone, but that there might still be a question for the jury, whether the sale was not made under such gross circumstances of fraud as to vacate the contract altogether.

TROVER to recover a quantity of goods which the plaintiff had purchased of Cross&Co., of Glasgow, in April, 1815, and which the defendant, as agent of the vendors, had refused to deliver up. The circumstances were these: the goods were sent according to order from Glasgow to London; they were landed at the defendant's wharf, and deposited in his warehouse. On the 3d of May the plaintiff produced the invoice to the defendant, and demanded the goods, at the same time tendering freight and other charges. The defendant refused to deliver the goods, on the ground that Cross & Co. had given him notice to retain them till further orders. It appeared by the invoice, that the goods were valued at 5567. 6s. and had been paid for by two bills of exchange; one of which was for the sum of 4471. 13s., drawn at four months from the 11th of March; the other for the balance (1087. 138.) at two months from the 24th of April. The plaintiff, at the time he demanded the goods, produced a receipt, given by the Shipping Company at Glasgow, in the following terms:

66

Glasgow, 21st April, 1815. "Received from Mr. Joshua Noble three boxes and eight bales, marked and numbered as in the margin, to be shipped at Leith in the Hope, deliverable at Glasgow wharf, London.

66

Signed, &c."

*For the defendant, it was contended, 1. That the goods had been *249] obtained by fraud; 2. That Cross & Co., the vendors, had not lost their right of stoppage in transitu. It was in evidence that the bill for 4471. 138. was an acceptance of Outhwaite & Co., in London, who were insolvent, within the knowledge of the plaintiff, at the time that he gave the bill to Cross & Co. It likewise appeared, that the plaintiff and Outhwaite had been in the habit of exchanging paper, and that the insolvency of Outhwaite & Co. was notorious at the time of the purchase from Cross & Co. The latter bill, for 1087. 138., did not appear to be a bona fide transaction; and there was strong ground for suspecting the plaintiff of a deliberate fraud. Noble had since become bankrupt, and the present action had been brought for the benefit of his estate. Best, Serjt., for the plaintiff, contended, 1. That there was no pretence for a stoppage in transitu; Cross & Co. had delivered the goods to the Shipping Company at Leith. That the delivery was complete, and that the vendors renounced all further right of property, was apparent from the act of the VOL. III.-14.

Company, who had acknowledged the receipt of the goods "from the plaintiff.” There was no connection between Cross & Co. and the Company at Glasgow. The delivery by Cross & Co. to them was equivalent to a delivery to Noble. 2. With respect to the alleged fraud, Cross & Co. took the bills in the course of trade. The fact of the insolvency of Outhwaite & Co., although within the privity of the plaintiff, could not avoid any contract which he made with the vendors. *How often are purchases made with accommodation paper; [*250 but who ever objected that they were, therefore, void? In almost all bankruptcies, cases of sale like the present occur; and, supposing it was in the reach of a court of equity, a court of law was incompetent to decide with what view such contracts were made. No mercantile contract will be safe, if cir

cumstances like these, introduced afterwards, can invalidate it.

Shepherd, Solicitor General, for the defendant. 1. The right of stoppage in transitu is not gone. The Glasgow Company were agents for both parties; and the receipt, which is in terms "from the plaintiff," is a mere form, capable of explanation. 2. The present action is founded in fraud; and it is a principle of law, that ex dolo malo non oritur contractus.

GIBBS, C. J.—I am inclined to think, that the vendors have lost their right to stop in transitu; they have not taken a receipt from the Glasgow Company to themselves, which they might have done, but have suffered them to give an absolute and unconditional receipt to the plaintiff. I have doubts upon this part of the case, and will reserve the point. Upon the question of fraud, I shall tell the jury, that the mere circumstance of the plaintiff's knowing himself to be insolvent, and that the bills which he offered in payment for the goods were doubtful, does not afford evidence of that degree of fraud which will avoid a contract of sale. Undoubtedly, a purchase under such circumstances would be grossly dishonest; *but I am not prepared to say that the contract [*251 would be void. If the jury believe that Noble not only knew that the bills were waste paper, but that he had contrived them for the purpose of gain. ing possession of these goods; that he was irremediably insolvent at the time, and had no intention of standing his ground; under such circumstances, I shall direct them that there is a degree of fraud, which will vitiate the contract, and that no property will pass to the plaintiff under it.

The jury found a verdict for the defendant.

Best, Serjt., and Andrews, for plaintiff.

Shepherd, Solicitor General, Vaughan, Serjt., and Lawes, for defendant.

REPORTER'S NOTE.

In the ensuing term, Best, Serjt., obtained a rule to show cause why there should not be a new trial, on the ground that there was not sufficient evidence of fraud to justify the finding of the jury.

When the case came to be argued, the Lord Chief Justice observed, that "although he had reserved the point of stoppage in transitu, he was of opinion, and the court concurred with him, that there was no pretence for exercising that right. That the delivery of Cross & Co. to the Shipping Company at Glasgow, was a complete delivery; and that the Company, by the receipt which they were impowered to give, had recognized the right of property in the plaintiff." Shepherd, Solicitor General, and Vaughan, Serjt., showed cause against the rule nisi for a new trial; and the court determined, that although there was a strong presumption, there was not sufficient evidence of fraud, to avoid the transaction; and that unless the repr sentations of Noble amounted to the offence of obtaining goods under false pretences, they would not take *upon themselves to say that the contract was altogether void. The court, therefore, made the rule absolute for a new trial, adding, however, as a condition, that the assignees [*252 should put themselves in the place of Noble. On a subsequent day the assignees, by their counsel, refused to accept these terms, and the rule was accordingly discharged.

*253]

*SITTINGS IN TRINITY TERM, 56 GEO. III. AT

WESTMINSTER.

MITCHELL et al. v. LAPAGE.

Where the broker makes a mistake in the contract, describing, in the bought and sold notes, goods to be sold by A, B., and C., which he believed to be the real name of the firm which employed him; which firm. in fact, from a recent alteration, that the broker was not privy to, consisted of A., D., and E. only. Held, that the purchaser of the goods was not at liberty to avoid the contract on this account, after having treated the contract as subsisting, upon a subsequent communication from the plaintiffs, unless he could show that he had been prejudiced, or had lost the benefit of a set-off.

ASSUMPSIT for a breach of contract, in not taking a quantity of hemp, which the defendant had bought of the plaintiffs, through their broker, in March, 1815. The hemp at the time was in Russia, and was to be shipped from Riga by the Alexander. Mr. Metcalfe, the broker, who made the contract, had described it in the bought and sold notes in these terms :—“ Bought for George Lapage, of Todd, Mitchell & Co., thirty-eight tons of hemp, &c." The action was brought in the names of John Mitchell, George Armistead, and P. F. Graabner; but the old name of the firm was Todd, Mitchell & Co. This firm had been dissolved in December, 1814, when Todd, and James Mitchell retired, and John Mitchell, one of the plaintiffs, remained, with Armistead and Graabner, the co-plaintiff's. Neither Todd nor James Mitchell had any concern with the hemp in question. The change in the firm had not been published in the Gazette, but was known to the clerks in the house. #254] When Metcalfe made the contract in March, 1815, it was not known by him that any change had taken place in the firm. It was in evidence that a letter from the present plaintiffs, in the name of the new firm, had been sent to the defendant in August, 1815, advising him of the arrival of the hemp, which had at that time fallen in price, and calling upon him to fulfil his contract; that shortly afterwards Mr. Lapage expressed to the broker a wish to be liberated from his bargain. He frequently spoke of the hemp which was to come by the Alexander; but latterly he refused to take it, upon the ground that the insertion of Todd's name avoided the contract.

Lens, Serjt., for the defendant.-The plaintiff's cannot recover upon the present contract. The bought and sold notes are in the name of the old firm. Every man has a right to select with whom he will deal. The plaintiff might choose to contract with the old firm of Todd, Mitchell & Co., and not with another firm. When the broker sent the sold note to the plaintiffs, and they discovered, as they must have done, the mistake on inspection, it was their duty to have had the bought note altered, and to have apprised the defendant of the error. The present plaintiff's never traded under the names of Todd, Mitchell & Co., the firm with which the defendant contracted; and having made a contract with one set of persons, he cannot be prejudiced by having it adopted by another.

GIBBS, C. J.-I agree with the defendant's counsel, that he cannot be pre*255] judiced by the substitution. If the defendant could show any inconvenience which he has sustained by the inaccuracy of the broker, it might be an answer to the present action. Metcalfe has misdescribed the names of his principals; and if by this mistake the defendant was induced to think that he had entered into a contract with one set of men, and not with any other; and if, owing to the broker, he has been prejudiced, or excluded from a set-off, it would be a good defence. But the defendant has notice, not from Todd & Co., but expressly from the plaintiffs, of the arrival of the hemp.

After that notice he confers with the broker, treating the contract as subsisting. He has notice from the new firm, and makes no objection. This is only a mistake of the broker; and, unless the defendant shows that he has been prejudiced, the plaintiffs have a right to recover.

Best, Serjt., and Marryatt, for plaintiffs.
Lens, Serjt., and F. Pollock, for defendant.

Verdict for plaintiffs.

*SITTINGS AFTER TRINITY TERM, 56 GEO. III.
AT WESTMINSTER.

[*256

JONES v. DAVISON.

4. employs B. to get a bill discounted, and agrees to give him a sum of money beyond the legal interest; B. procures C. to discount it, who requires B. to indorse the bill, but takes no more than the legal interest upon the discount. B. then pays over to A. the proceeds of the bill, minus the sum which A. had agreed to give him for procuring the discount: Held, that in an action against A., brought by the indorsee of C.; A. could not defend himself on the ground of usury between him and B.

THIS was an action against the defendant as the acceptor of a bill of exchange for 391. 3s. 1d. The bill was drawn by F. A. Rickards, payable to his own order, upon, and accepted by, the defendant. It was indorsed by Rickards to Duckworth, by Duckworth to Shoel, and by Shoel to the plaintiff. The defence was usury. The circumstances were these:-The defendant, being in want of money, applied to Duckworth to raise him some upon his bill of exchange: the bill in question was accordingly drawn, which Duckworth promised to get discounted for 30s. The bill being indorsed by Rickards in blank, was delivered to Duckworth with this understanding, that he should get it discounted, giving the value of the bill (minus the 30s. which he was to take out of it) to the defendant. Duckworth's name was not upon the bill at this time, but he carried it to Shoel, who discounted it at legal interest, but required Duckworth to indorse it. Shoel afterwards parted with the bill to the present plaintiff for a good consideration.

Vaughan, Serjt., for the defendant, contended, that this bill was void on account of usury. It originated in an usurious agreement, not intermediate, but accompanying the bill in its creation. Duckworth is a [*257 party upon the bill, who receives the usurious interest; and the defendant, who is sued, was the hand who paid it.

Pell, Serjt., contra.-There is no evidence that it was intended that Duckworth should be a party to the bill in its first formation. He undertakes, for a commission, call it extravagant if they please, to get it discounted. But this is not usury. The circumstance of his putting his name upon the bill when he passed it to Shoel will not make it usury. Duckworth did not discount, nor undertake to discount it himself. He received the full value from Shoel, who, having paid a good consideration, passes a legal right to the plaintiff.

GIBES, C. J.-The construction upon the 12th of Anne, which avoids all usurious contracts, has been fixed and settled by many cases; but I must say I could never understand the equity of the rule which has so long obtained under this statute, that an innocent indorsee shall be prevented from recovering upon a bill of exchange which has been contaminated in its creation with usury, by means to which he is not privy, and of which, when he receives the bill, he can know nothing. I own I have serious doubts upon this construction; and