valid. And in Archbold's Poor-Law (vol. 1, 97 k) it is said, that "no rate shall be deemed valid unless the same be allowed by two justices." [Wilde, C. J.It seems to me to have been intended that the signature of A. B. and C. D., churchwardens, was by them as church wardens only; if so, there is no signature by the magistrates at all.] The rate must be signed by the churchwardens, (Reg. v. Fordham, 11 Adol. & Ell. 73), and it must be allowed by two justices. Therefore, unless the same persons can sign in both capacities, the rate is invalid, as wanting the signature of one of the two sets of persons. [Maule, J.-I see that in Rex v. Folly (1 Bott's Poor-Law Cases, pl. 86) it is said, "that justices for the county cannot allow a rate made by overseers of a borough." So that it would seem that the allowance of the magistrates is to some extent a judicial act.] And, further, only one of the persons signing was a justice. The rate, it is submitted, is not only voidable on appeal, but absolutely void; and the nonpayment of a void rate does not disfranchise the voter. In Reg. v. The Mayor of New Windsor, (7 Q. B. 908), B., an inhabitant of a borough, refused payment of a rate, and his name was in consequence struck out of the burgess list; but the Court awarded a mandamus to the mayor to enrol B.'s name, it appearing that the rate was invalid; and the non-payment, therefore, afforded no ground of disqualification. | published as required by the statute. Looking, there fore, to the effect of these cases, it is clear that there i no legal obligation upon a party to pay a rate which ha not been published on the Sunday after it is made, an that the rate so to be published is a rate to be allowe by two magistrates. The present case shews that n such rate has been made, the authorities shewing tha that which has not been allowed is no rate, thoug called one, so as to create an obligation to pay; and therefore, there seems to be no reason, on the ground o his non-payment, why the appellant should not hav voted on the last day of July, had the election been o that day. The Revising Barrister seems to have thought this might have been a rate in point of fact though open to objection on appeal; and that unless th appellant thought fit, which he did not, to appeal, h must pay it. But it seems to me that this was neithe in fact or law a rate at all; which is a very differen thing from a rate which may be liable to be quashe on appeal. The claimant here has not been guilty o default in not paying this so-called rate; and the peal must, therefore, be allowed. ap COLTMAN, J.—I concur in opinion. MAULE, J.-Under the statute of Elizabeth this rat is a public tax, to be paid by the parishioners, impose by the churchwardens and overseers, with the authe rity of the justices; and it is also to be published, a No counsel appeared for the respondents. required by statute; and, until these things have bee WILDE, C. J.-It seems to me that the appeal must done, no person can be taken to be cognisant of wha be allowed. There has not been what the law considers is or is not a poor-rate, which he is bound to pay. Th a rate made in this case at all, and, therefore, there justices are said to act ministerially in allowing th could be no non-payment of the rate, such as would rate; and I think it is correctly said, in this sense, tha disfranchise the voter. By the 33rd section of 2 Will. they have no power to judge of the goodness or bad 4, c. 45, (under which the appellant claims), the rightness of the rate, but are bound to confirm what i of voting in certain boroughs is preserved, but upon the offered to them by the churchwardens; but I als condition, that the claimant, on the last day of July, think they may be said to act quasi-judicially to this should be entitled to vote were the election upon that extent, that they are to determine whether the person day; if he is not, he is not entitled to be registered. who present the rate for their allowance are church The case here finds that the party was entitled to vote, wardens and overseers. This view seems to have bee unless disqualified by reason of his non-payment of this taken by the Court of King's Bench in the case of Re rate. Now, the form of document referred to as a rate v. Folly, (1 Bott's Poor-Law Cases, pl. 86), which i appears to have been a rate, if properly authenticated, cited as follows:-" On a mandamus to the justices o as required by law; but it also appears that it was not Wooton Bassett to allow a rate, they returned, tha allowed by two magistrates. What, then, is the effect ever since the 43 Eliz. c. 2, the justices had appointe of a document properly prepared as a rate by the four, three, or two overseers, within that part of the churchwardens, but not signed by the magistrates? Is parish which lies within the borough; and that the there any obligation to pay it until quashed upon ap- had always made rates within their jurisdiction. The peal? In Reg. v. The Earl of Yarborough, (3 Per. & they say that the rate was offered to them, made by D. 491; S. C., 12 Adol. & Ell. 416), Littledale, J., says, overseers appointed by the justices of the county, an as a reason why the mandamus should go to compel the not of the borough. By the Court.-The return mus magistrates to sign, "that if the justices refuse to allow be confirmed." In that case, therefore, the justice the rate, there is no power to amend, and, therefore, exercised jurisdiction to determine whether the rat there will be no rate." He seems to give that as a rea- was made by the proper overseers to whom the Legis son for shewing why the magistrates act ministerially, lature had given the power to make the rate; and because there is no appeal against their decision. If, that, I think, they judge exclusively. If the prope for any reason, whether good or bad, they may refuse solemnities are not complied with-if the rate is no to sign, the parish could make no valid rate at all, and made by the proper persons-not allowed by the jus the Court, therefore, would grant a mandamus to com- tices, or not published in due time-it is no more tha pel them to sign (provided the document were in the a claim made by any private person. What has bee proper form as a rate when submitted to them for sig- done in this case has the same effect as if it had been nature) in their ministerial capacity. Although that done by a private person without authority; and act is ministerial on their part, yet it is of considerable think the appellant is not guilty of any default, as importance, for there is nothing else to shew to the per-scot and lot voter, in not paying that which somebody sons called upon to pay it or to appeal, that a rate has called a rate, but which, in point of law and fact, wa been made. The stat. 17 Geo. 2, c. 3, which has been no rate at all. referred to, after noticing the allowance of the rate by the magistrates, says, that no rate shall be valid for the purpose of being collected, unless notice be given of the rate on the Sunday next after it has been allowed by them. Then the case of Sibbald v. Roderick and Others | (11 Adol. & Ell. 38) decides, that, unless the rate be published in proper time, it is a void rate; and in that case a distress for the rate was considered to be void, as being wholly unjustified, by the existence of that-Decision reversed. which had been called a rate, but which had not been WILLIAMS, J.-I am of the same opinion. If thi had been a legal rate, and, in order to resist it, it ha been necessary to appeal against it, then, perhaps, the non-payment of it would have been a disqualification But the case of Sibbald v. Roderick and Others (1 Adol. & Ell. 38) shews that the rate was invalid though unappealed against; and, therefore, I thin that the non-payment of it did not disqualify the voter COURT OF CHANCERY. In the Matter of the JOINT-STOCK COMPANIES WINDING- WALKER.-Dec. 16. 11 & 12 Viet. c. 45, ss. 5 and 58-Suit not affected by Order to wind up. The Cirennstances that a Joint-stock Banking Company An Order for winding up, under this Act, does not pre- Preliminary Inquiries will not be ordered, where it is go on. This was an appeal from an order of Knight Bruce, V. C., made upon two petitions in the above matter, for the dissolution and winding-up of this Company, under the above-mentioned act. The first petition was presented by Eliza Troutbeck, Maria Stevenson, and Margaret Stevenson-Eliza Troutbeck as the executrix of George Troutheck, deceased, and the two other petitioners as the owners of five shares each. It appeared, that, in April, 1841, George Troutbeck, who was then the owner of ten shares, sold them to Donald McLean, a director; that he duly executed a deed of transfer on 30th April, which had been forwarded by the secretary of the Company, and that he returned the deed on the following day to the secretary; that in June following, Troutbeck, upon coming up to town, ascertained that his transfer had not been duly completed, and that the bank was in difficulties; that, to save the bank from bankruptcy, and allow the directors time to get in assets, 20,000l. were advanced by the London and Westminster Bank, on bills at six months, with notes, signed by directors and shareholders, to the same amount, as a collateral security; that Troutbeck, with notes of 5000% each, all of which were also signed by one or two other shareholders, put his name to four four directors. The bank did not pay the bills; the assets failed; the notes were taken up by E. Walker, one of the directors who had signed them, to whom Troutbeck had to pay, from first to last, as his contributive share, 3214/. That Troutbeck died 5th June, 1848, leaving Eliza Troutbeck, his widow, and John Trontbeek, his son, (an infant), executors; that probate was taken out by the widow alone, power being reserved to the infant; and that the bank had long ceased to carry on business.—The second petition was that of E. Walker, the director above named, and it was supported by an affidavit, stating that the petitioner had been called upon, by creditors of the Company, to pay, and had actually paid, large sums of money, in respect of debts and liabilities of the Company, to an amount greatly exceeding his contributive share. E. Walker was one of the defendants in the suit of Deeks v. Stanhope, reported, on demurrer, 8 Jur. 349; that bill was afterwards amended. Knight Bruce, V. C., made the one order on both petitions. This was a motion to discharge that order. hope, in support of the motion. My objections to the order are three. First, this Company is not within the operation of the Winding-up Act; it had ceased business as long ago as 1842, and there were no public or outstanding debts due from the Company; it cannot, its pecuniary engagements. Secondly, the petitioner therefore, be said to be a company unable to meet Walker, being one of the defendants to the suit of Deeks v. Stanhope, which was a suit for the purpose of establishing grave charges of fraud and mismanagement against him and others of the defendants, must not be allowed upon a petition under this act to embarrass that suit, which would be the effect of directing a reference upon this petition; for if the plaintiffs went on in their suit, they would be doing over again what was already done under the reference on petition, or, if they did not proceed, they would be subject to have their bill dismissed for want of prosecution. Thirdly, the order should not be absolute, but should be to inquire whether it was advisable that the affairs should be wound up under this act. Bacon and Lloyd, for the respondents. Dec. 16.-LORD CHANCELLOR.-I do not see any ground of doubt as to the construction of the act. What has been stated, that there are no outstanding debts, is not at all essential to bring the case within the scope of this act. It is to enable those who have entered tions in certain cases. The seventh head of the 5th into certain speculations to escape from those speculasection says, "If any company shall have been dissolved, or shall have ceased to carry on business, or shall be its affairs, and the same shall not be completely wound carrying on business only for the purpose of winding up up," a petition may be presented in a summary way. not only so, but there is a suit for winding up its conThis is a company having ceased to carry on business; cerns, and, in this suit, to establish claims against innotwithstanding the existence of a suit, the Court may dividual shareholders. The act, however, says, that, exercise the power given by the act, (58th section). This case falls within the seventh head of the 5th section. Here there is not, indeed, a carrying on of the business in order to wind up the Company, but it is a case shewing the Company cannot go on. This is one with companies going on, so as to enable a dissatisfied case contemplated. The act never intended to interfere party coming to put an end to their proceedings; but, where a company cannot go on, it is intended to afford means of avoiding the insurmountable difficulties attending the winding-up of the affairs in a suit. As to to be made liable by the suit. Does this disqualify Walker, all that is stated is, that he is a person sought him? It may be that the Court will not be able to the assets of the Company not being able to be ascercome to a final conclusion until the suit is disposed of, tained until the personal liabilities of the parties shall be disposed of; but it is quite competent for the parties to go on with the suit. The act, containing such a provision as that of the 58th section, must have contemplated all descriptions of suits. I cannot think it necessary to wait until the suit is determined; for, so far act does not interfere with it; but, as to winding up, as the liability of individual members is concerned, the the act affords a more speedy remedy than could be obtained in the suit. As to the other point, whether I should direct any preliminary inquiries, I do not see any ground for so doing. No doubt, circumstances may be brought forward justifying the Court in doing selves that they cannot go on, this is enough. Withthis; but seeing this Company agreeing among themout, then, adverting to what may be a proper order in any other case, I see nothing to require an inquiry in order to justify the order of the Vice-Chancellor, which The reporter is indebted to his friend, Mr. A. Gordon, for I think is right.-Order affirmed. Glasse, for the plaintiffs in the suit of Deeks v. Stan a note of this case. VOL. XIII. h here Ex parte REAVELY, in re THE NORTH OF ENGLAND of each person's liability: it may be primarily, second- Stat. 11 & 12 Vict. c. 45—“ Contributory." Ex parte HAWTHORN, in re THE NORTH OF ENGLAND JOINT-STOCK BANKING COMPANY.-Jan. 30. The Joint-stock Companies Winding-up Act, 1848List of Contributories—Former Shareholder. In settling the List of Contributories, under the 77th and 81st Sections of the 11 & 12 Vict. c. 45, the Master is right in including all Persons who may be liable to contribute towards the Liabilities of the Company; but he does not thereby decide either the Amount or the Order of the Liability. This was an appeal from a decision of Knight Bruce, V. C., refusing a motion on behalf of Robert Hawthorn, that the decision of the Master charged with the winding up the affairs of the above-named Company, whereby his name had been included in the list of contributories of the said Company as a contributory in respect of eighteen shares, and, as such, liable to the debts and losses, if any, up to the 1st January, 1847, inclusive, might be reversed, and that the name of the said Robert Hawthorn might be struck out of, and excluded from, the list of contributaries of the said Company. The facts of the case are stated in the report of the case before the Vice-Chancellor, ante, p. 77. Russell and Bates, in support of the motion, made use of the same arguments that were urged in the court below. [They cited the cases of Steward v. Greaves, (10 Mee. & W. 711); Barker v. Buttress, (7 Beav. 134); and Eardley v. Law, (12 Adol. & Ell. 802).] [Lord Chancellor.-Is not the Master to settle a list of all the persons that are in any way liable? The Master has said nothing about the order of their liability.] The Master ought not to have placed Hawthorn, a former proprietor of shares, upon the list of contributories, without some qualification, until he saw that there was some probability of the present shareholders being unable to meet the liabilities of the Company; as between the former shareholders of the Company and the present there is no right of contribution. Bacon, Lloyd, and Headlam, for the official manager of the bank, were not called on. LORD CHANCELLOR.-There is nothing in this case. The 3rd section of the Winding-up Act defines the meaning of the word "contributory:" it says, "The word 'contributory' shall include every member of a company, and also every other person liable to contribute to the payment of any of the debts, liabilities, or losses thereof, whether as heir, devisee, executor, or administrator of a deceased member, or as a former member of the same, or as heir, devisee, executor, or administrator of a former member of the same, deceased, or otherwise howsoever." The official manager is bound to make out a list of the members and other contributories; and then the Master, having settled the list of contributories, and having determined the amount necessary to be raised by calls, he is, according to the 84th section, to apportion the same among the several contributories of the company, or such of them as ought to contribute thereto. Every person, therefore, who, in any event, may be liable to contribution, is to be included in the list. The insertion in the list does not conclude the amount or the order of liability, but only that there is some liability. Now, here is a party who, according to the Master's finding, was a shareholder, and, as such, liable to all losses anterior to the 1st January, 1847, but he, has decided nothing as to the proportion of liability. Having got all the contributories on the list, the Master is then to decide the order arily, thirdly, or fourthly; but all he has at present done is to say that the party is liable in some degree and that Hawthorn is a person who may be liable for All that I decide is, that the Master's entry is correct. losses anterior to January, 1847.-Motion refused, with costs. SMITH V. PINCOMBE.-Feb. 9. Practice-Order to examine a Party—Notice of Names of Witnesses. The common Order for Leave to examine a Party, "saving just Exceptions," does not require Service on the opposite Side. Quare, whether there is any Rule of Practice that requires a Party examining Witnesses before a Commis sioner to give the opposite Side Notice of the Names, &c of the proposed Witnesses? Circumstances under which a Motion to suppress Deposi tions taken before a Commissioner, on the Ground that no Notice of the Names, &c. of the Witnesses had been given, was refused. This was a renewed motion by way of appeal from the Vice-Chancellor of England, (reported ante, p. 91). Since the decision of the Vice-Chancellor, the solicitor of the plaintiff filed an affidavit, stating, that, although he was present at the inn where the examination of the witnesses was taking place, yet that he was wholly ignorant of the names of the witnesses who were examined, and did not become aware of them until after publication had passed. James Parker and W. H. Terrell, in support of the motion to suppress the depositions, took the same points that were taken in the court below, and, in addition to the authorities there cited, they referred, on the neces sity of service of orders of course in general, to Taylor v. Harrison (1 M. & C. 274) and Dearman v. Wych, (4 M. & C. 550). And, as to the necessity of giving notice of the names, &c. of the witnesses to be examined before the commissioner, they referred to the 26th Order of October, 1842, and to 1 Newland's Chan. Prac. 267, edit. 1819. Upon their proceeding to read the affidavit filed since the decision of the Vice-Chancellor, the Lord Chancellor said, that, if new affidavits were let in, it would be no longer an appeal motion. Rolt and Follett, contra, objected to the reading of the new affidavit. LORD CHANCELLOR.-It is a ground to have the motion stand over to answer the affidavit, if you wish. Parker referred to Const v. Barr, (2 Russ. 161), and stated the effect of the affidavit. Mr. Munroe's Book of They referred also to Earl Nelson v. Lord Bridport (7 Beav. 195) and Lord Mostyn v. Spencer, (9 Jur. 97). Rolt and Follett, contra.-The form of the order giving leave to examine a co-defendant originally contained these words, "and hereof give notice forthwith;" but Sir John Leach altered the form of that order, leaving out those words, and inserting the words "saving all just exceptions." Forms was produced before the Vice-Chancellor, shewing that those words are now invariably left out; and there is no general order of the Court requiring notice to be given. What analogy is there between this and other orders of course? All just exceptions are saved for the hearing. As to the second point, there is no rule of the Court that requires the names of the witnesses, about to be examined before a commissioner, to be given to the opposite side, neither was there under the old practice. The commissioner was furnished at once with all the interrogatories and cross-interrogatories, so that, in fact, there was no use in furnishing the names of the witnesses; but it was usual to give the names. This is all the books of practice say; but certainly not, unless the adverse solicitor attended the exe cution of the commission. Now, by the present practice, the commissioner may be furnished with fresh interrogatories. ROLLS COURT. SMITH V. OLIVER.-Dec. 9, 1848, and Jan. 18, 1849. Will, Construction of-Substitution — Charity-Void Bequests. Parker, in reply.-The evidence being conflicting, the motion must be decided upon the question of regu-A Testator gave pecuniary Legacies to several Persons, larity or irregularity of the proceeding. LORD CHANCELLOR.-This is a motion by the plaintiff to suppress depositions, on two grounds: first, that the defendant did not serve the plaintiff with a notice of the order for the examination of his co-defendant; and, secondly, that several witnesses were examined on a commission by the defendant, and no notice had been given to the plaintiff's solicitor of the names, &c. of the several witnesses. As to the first ground, I think that is entirely displaced by the alteration in the form of the order, which was made by Sir John Leach; and that no service of the order for the examination of a codefendant, saving just exceptions, is now necessary. That has been the established practice ever since the alteration of the order. As to the second point, whereever a party asks an order, on the ground of irregularity on the other side, it is for that party to shew that there was irregularity, according to the practice of the Court. The plaintiff has failed in this; for I have not been referred to any authority as to the practice of this Court, nor to any other proof of the existence of such a practice: but he this as it may, the facts of this case are a sufficient answer to the motion. If I am to believe the affidavits in opposition, the plaintiff's solicitor attended at the place where the commission was opened and carried on, where all the parties knew one another, and that it was well known that the witnesses were in attendance for the express purpose of being examined. The solicitor for the plaintiff, by his affidavit, filed after the decision of the Vice-Chancellor, represents, that, though he must have seen the several witnesses there, yet that he never informed himself who the witnesses were that were under examination. That would be very strange indeed, and it would require very strong evidence indeed to prove it to my satisfaction. I have no such difficulty in coming to the conclusion that this was not so. First, I have the fact of his being at the place where the examination was going on; he is proved to have had communications with the witnesses; he was known to the solicitor on the other side, but did not require notice of the names of the witnesses from him; he contented himself with watching the proceedings, and now he denies that he knew who the witnesses were. All the witnesses swear that he saw them there, and that they had said, in his hearing, that they were in attendance for the purpose of being examined. The plaintiff left the case before the ViceChancellor on those affidavits. The Vice-Chancellor could not have done otherwise than as he did. Now the selicitor, finding the decision against him, files these affidavits, attempting to shew, from various statements of facts, that he had no knowledge of the names of the witnesses who were examined until after publication had passed, and asking me to disbelieve the affidavits on the other side. It is impossible that I can give credit to his affidavit. Then we have a solicitor in the country, who, knowing that certain witnesses are under examination, makes no objection to the solicitor of the other side at the time, nor until after publication has passed, and he has read the depositions; and then moves, upon the ground of no notice, that these depositions should be suppressed. My opinion is, that the solicitor of the plaintiff had knowledge of the witnesses who were examined, and that he is precluded from making this objection after he had seen the depositions; and that the motion must be refused, with costs.-Motion refused, with costs. and he directed that the Legacies should be paid within Six Months after his Decease; and in case any or either of the Legatees should die, not having received their respective Legacies, and leaving any Child or Children, he directed such Child or Children to be entitled to their Parent's Share, in equal Proportions. Some of the Legatees died in the Testator's Lifetime, leaving Children:-Held, that such Children did not take their Parent's Legacy. The Testator also gave 2000l. Stock to certain Churchwardens and Overseers, upon Trust to apply 8007. in erecting Almshouses; and he directed the Dividends of Residue, after the Houses should have become fit for Habitation, to be applied for Maintenance of poor Persons residing therein:-Held, that, as the Trust for the Erection of Almshouses was void, the Trust as to Residue of 2000l. also failed, and the whole Legacy fell into the Residue, as undisposed of. Thomas Barber, by his will, dated the 15th October, 1839, gave certain pecuniary legacies to different parties, and he directed the said legacies to be paid within six months after his decease; and in case it should happen that any or either of the said legatees should die, not having received their respective legacies, and leaving any child or children, then he directed that such child or children should have, and be entitled to, their parent's share, in equal proportions, to be payable to them at twenty-one, or marriage, and the interest in the meantime to be applied for their benefit. Some of the legatees died in the testator's lifetime, leaving children. The Master, by his report, found that these children were not entitled to their parents' legacies; and exceptions were taken by the children to his report on that ground. Koe and Follett supported the exceptions. Lord LANGDALE, M. R., said, it was probably the intention of the testator, that if the parents never became entitled to the legacies, yet their children should take by way of substitution. But he had not expressed that intention-voluit non dixit. The legacies were directed to be paid within six months after the testator's decease; and in case it should happen that any or either of the said legatees should die, not having received their legacies, and leaving any child or children, he directed that such child or children should have, and be entitled to, their parent's legacy. But the legatees who died in the testator's lifetime did not take any legacies. He thought the testator must be taken to have meant, that the legacies to which the parents became entitled should go to their children respectively. But the parents did not become entitled to the legacies intended for them, and, therefore, their children could not take anything. He thought the Master was right, and the exceptions must be overruled. Jan. 18.-The cause was now heard on further directions. The testator, by his will, gave to the churchwardens and overseers of the parish of Tottenham, and their successors for the time being, the sum of 20007. Bank Annuities, upon trust to pay and apply the sum of 8007. in erecting six almshouses in the said parish as a residence for six poor persons, inhabitants thereof, of the age of fifty years and upwards; and he expressly directed that the interest and dividends of the remaining part of such 20007. stock should be paid and applied weekly and every week, after the first dividend should become due, and such houses should have become fit for habitation, for the maintenance of such six poor persons therein residing. A question made was, whether, as the 800%., part of the 20007., could not be legally laid out in the erection of almshouses, the residue of the sum was effectually devoted to charitable purposes, or whether the whole gift must fail, and fall into the residue for the benefit of the plaintiff, as residuary legatee. Turner and Forster, for the plaintiff, cited Limbrey v. Gurr (6 Madd. 151), and The Attorney-General v. Whitchurch (3 Ves. 141). Koe, contra. uary, 1848. The Bombay firm had also shipped 50 bales of cotton on board The Majestic, on the arriva of which ship at Liverpool, in March, 1848, the plain tiff accepted a bill for 27367. for the price of that cotton and a bill for 8197. for the freight, drawn on him by th Liverpool house. The Henry Gardiner arrived in April and the plaintiff then discovered, as he alleged, tha freights were higher than 57. when the cotton wa shipped, that the house in Bombay had given to Lord LANGDALE, M. R., decided, that the entire legacy much for it, and that the cotton on board both ship lapsed and fell into the residue. VICE-CHANCELLOR OF ENGLAND'S COURT. SHARP v. ARBUTHNOT.-Feb. 12, 13, and 15. Injunction-Bill of Exchange-Notice-Time to answer. S. directed A. & Co., the Bombay Branch of a Liverpool Firm, to send him Cotton, and draw a Bill on him for the Amount. The Bill was drawn and accepted by S. When the Cotton arrived, S. refused to receive it, as having been improperly sent, and Negotiations took place between S. and A. & Co. The Bill had been sent to the Liverpool Firm, who sent it to their London Bankers, and Advice was sent to the London Bankers to sue on it if not punctually paid. The London Bankers, by their Answer, denied all Knowledge of the Circumstances under which the Bill was accepted, and of the Negotiations. Under the Circumstances, an Action brought by the London Bankers was restrained. In a similar Case, the Liverpool Firm had drawn Bills for the Amount of Cotton, which had been accepted by S. The Bills were handed over to the Cotton-Brokers of A. & Co., A. & Co. expressing to them some Doubt whether the Bills would be paid. The Brokers, however, took them, and gave A. & Co. their Acceptance for a somewhat larger Amount than the Amount of the Bills. The Brokers, by their Answer, denied all Knowledge of the Circumstances under which the Bills were given, and, except generally, of the Disputes between S. A. & Co. Under the Circumstances, an Action on the Bills by the Brokers was restrained. The Liverpool Firm applied for Time to put in their Answer till they could hear from Bombay, stating, that they themselves knew nothing of the Circumstances. Application refused. The plaintiff in this case was William Sharp, a merchant and shipowner, at Liverpool; the defendants, G. C. Arbuthnot, Peter Ewart, Edmund Lyon, A. G. Latham, and Robert Brown, were merchants, carrying on business at Liverpool under the firm of Arbuthnot & Co., and at Bombay under the firm of Ewart, Lyon, & Co. The plaintiff, by a letter, dated 4th August, 1847, directed the defendants at Bombay, in case freights had fallen below 57. a ton, to purchase cotton for the homeward cargo of one of his ships, The Henry Gardiner, concerning the quality and price of which cotton certain directions were given; and the letter contained the following passage:"For this cotton you may take the company's advance, or draw on me for the amount of invoice, which drafts shall meet due honour on presentation." The plaintiff, on 22nd October, wrote to cancel this order, in consequence of the loss he had incurred by some previous shipments of cotton from the defendants at Bombay. On 20th November, 1847, the defendants at Bombay wrote to the plaintiff, acknowledging the receipt of the letter of 22nd October, but stating, that they had already bought 510 bales of Broach cotton to fill up The Henry Gardiner, and that they had drawn upon the plaintiff for 27057. at six months on the balance of the account for the same. The bill was sent to the Liverpool firm, and, after some complaints made by the plaintiff to the Liverpool firm on account of the delay and the charges of the house in Bombay, the bill was accepted by the plaintiff in Jan was of inferior quality. The plaintiff made application to the defendants in Liverpool on 19th April, 1848, bu they refused to make any allowance, and a long cor respondence ensued; and, on the 12th July, 1848, th plaintiff and the Liverpool house agreed to refer the dispute as to the quality of the cotton to arbitration and that what sums might be awarded to the plainti in respect of the matters referred should go in reductio and as a set-off against the claims of the firms at Liver pool and Bombay in respect of the said cotton. A award was accordingly made, which appeared to fin that the cotton was inferior, and found that the valu of the differences ought to be paid to the plaintiff, de ducting therefrom what might be the amount; that th prices paid in the execution of the orders had falle short of the limit by which each order was governed Under this award plaintiff claimed 9607. In the mean time, the bill for 27057. had been indorsed by the Liver pool house to the defendants Arbuthnot, Latham, & Arbuthnot, London bankers, who, when it became due commenced their action against the plaintiff: and th bills for 27367. and 8197. were indorsed to the defend ants Gladstone & Sergeantson, of Liverpool, who were the cotton-brokers of the Liverpool house, and they had commenced an action on them. The plaintif filed his bill on 30th November, 1848, stating as above, and charging, that these actions were in fact brought by the Liverpool firm; that the cotton had been refused by the plaintiff, and landed and taken possession of by the Liverpool firm; and, in answer to alleged pretences, charging, that the bills were not indorsed to the London bankers, and to Gladstone & Sergeantson, for good consideration, and were not delivered to them respectively in the ordinary course of business, and as an item in their accounts. And the bill prayed, that Arbuthnot, Latham, & Arbuthnot, the London bankers, and Gladstone & Sergeantson, the brokers, respectively, might be restrained from proceeding in their actions on these bills; and that the Liverpool firm might be restrained from commencing any action on the bills. The London bankers, by their answer, professed their ignorance of most of the matters alleged in the bill as having passed between the plaintiff and the Bombay and Liverpool firms, and said that they were unacquainted with the disputes between those parties; and that they were indorsees of the bill for 27051 for valuable consideration, without any notice or knowledge of the matters stated in the bill relating to the previous transactions. They said, that the said bill (but never any other bill accepted by the plaintiff) was, on the 21st June, 1848, handed over by the Liverpool firm to them, and had ever since been in their possession. That, in the course of their business, they were in the habit of receiving from the Liverpool firm remittances of bills to be received when due, and to reduce, when received, the balances from their correspondents, and, until received, to be held as a security for such balances; and that this bill had been so received and held by them, and that it had been sent to them in a letter with seven other bills. The letter was set out in the answers, but only contained the following sentence relating to the bills:-"Enclosed are eight bills, together 86721., which please realise to the credit of our account." The defendants further said, that G. C. Arbuthnot, of Liverpool, and A. Latham, of London, |