GRAINGER.

testator used it. For this purpose the Court is not only authorised, SLINGSBY but is bound to place itself as far as possible in the situation of the testator when the will was made, and to expound the bequests which are contained in it by the light afforded by the surrounding circumstances.

Now it appears in this case that the bulk of the testatrix's property consisted of stock in the public funds, properly so called, and of Bank stock, both standing in her own name in the Bank books, and that she had no other property of any kind producing income; that her brother was in the habit of receiving the income arising from those funds which would all be paid by the Bank of England, though in different characters, the dividends on the public funds being paid by the Bank as agents for the Government, and the dividends on the Bank stock as a share of their own profits. It farther appears, that the testatrix's brother acted as her banker, and in this character had monies of hers in his hands, and that this balance, with her plate, linen, furniture, and articles of a similar description, constituted the whole remainder of her property.

In this state of things she makes her will, and, after giving certain legacies, she bequeaths "everything that she may be possessed of at her decease to her brother for his life, and, should he marry, and have children of his own, to those children after." And she then proceeds to provide for the event of his dying a bachelor; in which case she leaves the whole of her "fortune now standing in the funds" to her god-daughter, the appellant. She then makes a gift to her brother absolutely of all the monies belonging to her in his hands, after payment of her funeral expenses and legacies, and gives him also all her plate, linen, furniture, &c. &c.; that is, she gives to him absolutely the whole of her property, as it existed at the *date of her will, except that which was invested in the manner already described.

The bequest to the brother for life is, therefore, inaccurately worded. The testatrix did not mean to settle all that she might die possessed of, but merely her stock, Government stock, and Bank stock, as is clear by the effect of the subsequent gifts to the brother absolutely. The same observation, of course, applies to the subsequent bequest to his children. When the testatrix, in the next clause, makes a bequest to her god-daughter, it is difficult to resist the impression, that she intended, by the words "all my fortune," the same thing which, in the preceding gift, she had described as "all that I may be possessed of at my death," but that it occurred to her that neither form of words described accurately the subject of the bequest, inasmuch as she was, in the very next sentence, about to give to her brother absolutely everything she had except the stocks standing in her name. And that she, therefore, introduced the

[ *288 ]

[ *289 ]

SLINGSBY

v.

succeeding words as limiting the generality of the bequest; that she GRAINGER. intended, in short, not in a particular event to make a specific bequest of sums of stock then standing in her name, but to reconcile the bequests in her will by distinguishing between the property which was in a state of investment, and was intended to be settled, and that which, in the immediately succeeding words, she gives to her brother absolutely.

| *290 ]

At the same time, it is impossible to deny that this construction does some violence to the language of the will; that it is difficult to mould the expressions used so as to give effect to the supposed intentions; and that it requires the Court, contrary to its ordinary rules of interpretation, to say, that the testatrix, in the same instrument, *meant the same thing by words in their ordinary meaning essentially different.

Two Courts, the VICE-CHANCELLOR and the LORDS JUSTICES, with every disposition to adopt, if possible, this construction, have held it to be inadmissible. Two of the noble and learned Lords who have heard this case are strongly of the same opinion. In order to advise the reversal of a judgment, I apprehend it is not sufficient that your Lordships should doubt whether it is right: you must entertain a reasonable assurance that it is wrong. I cannot myself, in this case, feel such an assurance; and I concur, therefore, though very unwillingly, in the opinion that the appeal must be dismissed, but I think without costs.

Decree and order affirmed (without costs).

HOARE v. DRESSER.

1859.

March 14, 15, (7 H. L. C. 290-331; S. C. 28 L. J. Ch. 611; 5 Jur. N. S. 371; 7 W. R. 374 17, 18, 21.

Lord CHELMSFORD, L.C.

Lord CRANWORTH.

Lord WENSLEYDALE, Lord KINGSDOWN. [290]

[ *291 ]

[292]

33 L. T. O. S. 63.)

66

If there has been an engagement to appropriate to a certain individual a particular cargo, or a particular part of a larger cargo, as, for example, one hundred quarters of wheat out of five hundred quarters which I have now sent," in either of these cases equity will interfere to enforce performance of the engagement; but though the person who has made an engagement to sell a certain quantity of property may be shown to possess such a quantity of that property, equity will not treat the property so possessed as available for the engagement, unless it is identified with the property sold.

The agent and manager of the business of a London firm who resided in Sweden, gave to a merchant there about to draw bills on that firm an assurance that the bills would be accepted; whereon bills of lading of cargoes of timber were transmitted to the London firm, and bills of exchange were drawn against them:

Held, that this assurance, though thus made and acted on, was not as between the London firm and the foreign merchants to be treated *as equivalent to an acceptance of the bills, so as to vest in the Loudon firm legal rights from the time the assurance was given.

THIS was an appeal against a decretal order of the LORDS JUSTICES, by which they varied a decree of the Vice-Chancellor KINDERSLEY made in favour of the appellants.

The appellants are merchants, carrying on business in London,

under the firm of Hoare, Buxton & Co. The respondent Dresser is also a merchant, carrying on business in London, under the name of Henry Dresser & Co. The other respondent, Norrbom, is a timber merchant in Sweden.

In November, 1852, a correspondence was opened between Norrbom and Dresser, by which Dresser undertook to sell, on a del credere commission, for Norrbom, 2,000 loads of fir timber, at 60s. a load, to be shipped from Sweden. Dresser, in pursuance of this commission, in the months of December, 1852, and March, 1853, entered into contracts for the sale of upwards of 1,500 loads of timber, 500 loads for Bristol, the rest for Gloucester and London. There was some delay in sending the cargoes of timber, of which Dresser complained to Norrbom; but, on the 30th June, 1853, Norrbom wrote to Dresser, stating, that he had received two charterparties for two of the cargoes, and hoped to get one for the third; and requesting, as the three cargoes were forthcoming, and would have to be paid for by the end of July, that Dresser would give him authority to draw on them for 1,000l. at ninety days' date. Dresser, in reply to this letter, on the 19th July, 1853, consented to Norrbom's drawing upon him as requested. Norrbom accordingly, on the 4th of August, advised Dresser, that he had that day ordered Mr. Frestadius to draw on Dresser for his account 500l., at ninety days' date; and he also enclosed to Dresser copies of two charterparties of two vessels, called the Verene and the Christiana (1), in which two vessels the cargoes of timber for *Bristol and for London were afterwards shipped. The bill for 500l. was accepted by Dresser, and paid at maturity. On the 24th August, 1853, Dresser wrote to Norrbom, complaining of his conduct, and saying, "We have sold the goods delivered for your account, and as we are answerable for their delivery, we have only to request you to arrange so that the sold cargoes be shipped as soon as possible this year; in contrary case, and although, with the greatest efforts, we have succeeded to silence the buyers for the present moment, we anticipate great difficulties, together with lawsuits and damages." On the 6th September, 1853, Norrbom wrote to Dresser, that, in consequence of the consent granted him in the letter of the 19th July, and as the 5001. already drawn would go against a cargo to Littlehampton, he had requested Frestadius to draw upon Dresser for his account 5001., at ninety days. This bill for 500l. was also accepted, and when due, paid by Dresser. On the 29th September, 1853, Norrbom wrote to Dresser, stating that he expected to receive by the next post the bills of lading of the Verene and the Christiana, and that the captains of two other vessels would complete their loading next week, and that in a few posts he would send the shipping documents (1) In the correspondence throughout described as the Christiane.

HOARE

ፖ.

DRESSER.

[293]

HOARE

v.

DRESSER.

[ *294 ]

[295]

of all the four cargoes: and he added, "As an advance of the freight to these captains, I have been compelled to request Frestadius to draw upon you for my account for 2001., at ninety days, which I request you to honour to my debit." This bill for 2001. was not accepted by Dresser. No cargo of timber was shipped for Gloucester. The shipping documents in respect of the two cargoes of timber by the Verene and the Christiana were not sent to Dresser, but were forwarded to the appellants, Hoare, Buxton & Co.

On the 22nd October, 1853, the appellants received from Mr. Frestadius, one of their correspondents in Sweden, a *letter, which was in the Swedish language, and in the following terms: "Messrs. HOARE, BUXTON & Co., LONDON.

"STOCKHOLM, 14th October, 1853.

"I beg to refer to my last respects of the 12th instant, in which I advise my draft of 300l., and I have now to advise that I this day, according to the order of Mr. Joh. Norrbom, of Hernosand, have drawn on you 1,300l. at 90%, in the following bills, which I beg you will accept to the said friend's debit.

"100l. to the order of W. and L. Robinson.

"Advice letter of these drafts from Mr. Norrbom is forwarded to Mr. Kleman, who has promised to forward it to you, and write thereabouts. A. W. FRESTADIUS.”

On the morning of the 24th October, 1853, the appellants received from Mr. Kleman, at that time their agent, and the manager of their business in Sweden, the following letter:

"STOCKHOLM, 17th October, 1853.

"Enclosed you will find a letter from Mr. J. Norrbom, of Hernosand, with documents of wood shipments on account of Messrs. Henry Dresser & Co., and a draft on them for 1,312. 1s. 9d., against which he has authorised Mr. A. W. Frestadius to draw upon you at 90 for 1,300l., and knowing Dresser & Co. to be very good, I have not hesitated to assure Mr. Frestadius that you will promptly honour his draft to Mr. Norrbom's debit, and remain."

The letter from Norrbom, mentioned in the above as being enclosed, was in the Swedish language. The following was given in the printed papers, as a translation of it:

"I am indebted to our mutual friend, Mr. C. G. H. Scherman, of Sundswall, for your address; I now take the liberty to hand you a letter of which please to take notice, and to hand, when sealed, to Messrs. Hy. Dresser & Co. I also enclose my first of exchange, 1,312l. 1s. 9d., three ma last, this firm, with which please to do the needful, to my credit. After having accepted this bill, and acknowledged the correctness of the annexed account current, and given their written acknowledgment that I have delivered to them all the cargoes of wood sold or contracted for to them, except one per Ingeborg Anna, Captain Neilson, now loading, you will please to deliver to them the enclosed three bills of lading of timber and deals per ships Verene, Captain J. A. Jacobson, per the Christiane, Captain C. Kjerulf and the brig Solide, Captain M. C. Prahm, and also the enclosed two charter parties per the Christiane, et per the Verene. If, contrary to expectation, Messrs. Dresser & Co. should dishonour the bill, or not be willing to give the requested acknowledgment, that all the cargoes contracted for and sold to them have been delivered, I request you to protest against them, to insure the cargoes, or dispose of them in the best way for my account, convinced that they, being superior, will realise a net produce far above the invoice amount. Several of my friends have told me that I must be very cautious in my dealings with D. & Co., otherwise I would be exposed to much inconvenience and law suits, and, for this reason, *I [ *296 ] have been obliged to apply to you in this business, hoping to be able to render you any service in future. There against, I have authorised my Stockholm friend, Mr. A. W. Frestadius, to draw on you 1,300l. ninety d/d, which I beg you will honour to my debit. If, according to what has been mentioned above, you should effect insurance on these three cargoes, I request you to observe if any of the vessels has passed the Sound, and, in such case insure only from there. Having some cargoes of timber of first quality ready for shipment at Hudickswall, I beg you will inform me by return of mail about the highest price these would sell f. o. b. in London, to be shipped as soon as the season opens next year, it being impossible to find ship-room for them before the close of this season. Awaiting your communication, I am, Sirs, your obedient servant,

(Signed) "JOH. NORRBOM."

The last two letters came to the hands of Messrs. Hoare, Buxton & Co. on the morning of the 24th day of October, 1853, and not before.

Upon the receipt of Norrbom's letter, which contained the bills of lading of the cargoes and the draft and account current mentioned