Superior Court.-Russell et al. v. Wetmore, survivor, &c.

tains no positive direction to invest in Isatle | could not but regard as most unreasonable. raw silk of the first quality. The writer Nor is there to my mind any force in the seems cautiously to abstain from a positive argument, that the defendants shipped the order; he merely says, he "thinks favora-silk before the arrival of the juncture at bly" of an investment in best quality of Is- which the discretion of the defendants was atle raw silk, if costing under $500 per pi- to be exercised. The shipping of raw silks cul. There is no limit in the letter as to for the English market instead of teas dethe quality or price, and by no rule of con- pended upon two facts: that of teas being struction as applicable to commercial in- high, and the quantity shipping for America struments, can any portion of this letter be being very large at the time of the receipt regarded as a positive order to purchase Is- of the plaintiffs' order-who but the defendatle raw silk of the best quality. But it is ants were to judge whether the facts existcontended that before the arrival of the ed upon which this alternative discretion juncture at which this discretion of the de- was to be exercised. They judged that new fendants was to be exercised, they decided teas were or would be high and that the to invest for the plaintiffs in raw silk out of quantity shipping for America would be a particular parcel and at a particular price, large, and there is nothing in the case to and that the defendants were bound to fur-shew that their determination in these resnish the silk at the prices and of the quali-pects was not sound. The letter of plainty upon which their election was made. tiffs' too, contains an ample incentive to a On the 12th October, 1836, the defendant speedy determination of this matter. They wrote to plaintiffs that they should execute say, "in regard to the manufactured silks their order for raw silk out of the parcels specially ordered," they apprehended that contracted for, and ship it by first available extensive orders will be sent to China both opportunity. It appears that shortly before for raw silks from England and manufacturthe date of this letter, the defendants had ed for America, and therefore urge the nemade a contract for silk with Hingtae cessity of contracting for the manufactured Hong, and that he failed to deliver it, and silks immediately upon receiving the order. that it was his silk which defendants inten-As to the raw silk, too, a discretion to invest ded to apply to the order of the plaintiffs, in them before the new tea crop came in is when they wrote the letter of the 12th of fairly inferable from the first letter of the October. Subsequently, they bought the plaintiff. The writer says, "If shipped silk they actually shipped of Fontae Hong, without delay, I think favorably of best qualand it turning out not to be of as good a ity of Isatle raw silk if costing under $500 quality as Hingtae had contracted to deliv. per picul," thus leaving a fair discretion to er, the defendants made a claim for dama- exercise their alternative power immediate. ges on the committee of Hong merchants ly, if defendants should think that most conon Hingtae's affairs and it was rejected.-sistent with the interest of the plaintiffs.The plaintiffs cannot hold the defendants to The defendants were therefore amply warthe delivery of the silk mentioned in their ranted in determining to substitute raw silks letter of the 12th October, 1836. A foreign for teas, at the time they determined to do factor charged with the purchase of a large so. Although in their letter of the 16th of stock of goods makes a contract with a mer- August, 1836, they said they would be gov. chant in the foreign market, to deliver him erned by circumstances when the new tea by a particular day, goods of the descrip- crop arrived in market, they had a right, if tion required. He informs his principal by convinced that teas would be high on the letter of such contract, and that his order arrival of the new crop, to change their first shall be satisfied with the proceeds thereof. determination in this respect, if they thought The party who has contracted with the fac- the interest of their principals would be protor, from insolvency or other cause, over moted by it. A foreign factor charged with which the latter has no control, fails to de- the purchase of goods writes to his princi. liver the goods. Does the law in such case pal that he will not purchase till a particuhold the factor liable to his principal for the lar period or contingency. Before its arridamage which he has sustained for the non-val, he is convinced that it would be for the delivery to him of the particular goods which interest of his principal to anticipate that the factor thus contracted for? This would period or event, he surely is not bound to be holding factors to responsibilities which I wait because in his first letter to his princi

Superior Court.-Russell et al. v. Wetmore, survivor, &c.

pal, he indicated an intention to do so. The memorandum on a promissory note given result here shows too that the grounds upon by him to the plaintiff, it appeared that one which the defendants acted were sound.- Leigh had acted as his agent in some insuThe new tea crop opened very high and de-rance transactions. On the 7th August 1821, fendants, as faithful agents, could not have the plaintiff notified Leigh that he would invested in it had they waited longer. not accept the sugars, and advised the latter III. If I am wrong in any of the forego- to insure them. Leigh declined to interfere, ing positions, the point of acquiescence or alleging that he had no knowledge of any ratification in reference to the silk is fatal transactions between the plaintiff and the to the plaintiffs' claim for deficiency in the defendant. Upon these facts it was held, silk. The raw silk arrived in England in in an action brought by the plaintiff to rethe spring of 1837. Mr. Hodges, the agent cover the proceeds of the goods shipped by of the plaintiffs' received it and sold it in him, that the jury were well warranted in June, 1837, when the English silk market finding that the plaintiff had assented to the was very much depressed. It was known to purchase of the sugars made by the defenthe plaintiffs that Morrison, Cryder & Co. of dant. The reasoning of C. Justice Abbot, London were the agents of the defendants, and Bayley and Holroyd, Justices, in that and yet not a word of complaint or dissent case, is applicable to the present. It strikes is uttered until May, 1839, when the draft me as a case conclusive in favor of the pofor the balance which the defendants claimed sition that the plaintiffs here from their acwas presented. Judge Story in his work ceptance of the silk, their omission to notion Agency, § 253, says it is by no means fy their dissent, and their long silence, must necessary, that there should be any positive be deemed to have acquiesced in the puror direct confirmation, and that the acts and chase of the raw silk shipped to England conduct of the principal are construed libe- by the defendants. I am of opinion that rally in favor of the agent, and that slight the plaintiffs fail in both branches of their circumstances and small matters will some-claim, and that the defendants are entitled times suffice to raise the presumption of a to judgment. ratification. Thus for example, if an agent who is employed to purchase goods at a limited price should exceed that limit and the principal after a full knowledge of the facts, should receive them on his own account without objection, it would be presumed that he intended to ratify the transaction; and a fortiori, if the principal should not only re-shipped to England. ceive but sell them on his own account.The case of Prince v. Clark, 1 B. & Cres. 186, is a case very much in point. The circumstances to shew the ratification of the principal were not as strong there as in this case, and yet the court held that the jury were warranted in finding that the principal had ratified the purchase made by his agent. The plaintiff there consigned goods for sale to the defendant Clark, the captain of an Indiaman bound on a voyage to Calcutta, and desired him to invest the proceeds in certain specified articles, or in bills at the exchange of the day. The defendant sold the goods at Calcutta and invested the proceeds in sugar, which was not one of the articles specified in his instructions, and informed the plaintiffs of the purehase by a letter which the latter received on the 29th of May 1821. The defendant had no commercial establishment in England, but by a

NOTE.-The Chief Justice and Judge Oakley expressed no opinion upon the point, whether the defendants violated their instructions in sending the raw silk to England, before the arrival of the new tea crop at Canton; not deeming it necessary to express an opinion on that point, as they held the against the plaintiffs in regard to the raw silks point of ratification or acquiescence conclusive

SPECIFIC PERFORMANCE.

Where a vendor contracted to sell an estate in fee, with a stipulation that if any dispute should arise as to the title, the same should be submitted to some eminent conveyancer, and that in case he should be of opinion that a good title could not be made, the contract should be rescinded. Upon the delivery of the abstract, it appeared that the vendor's mother had a life-interest in the premises, and that her interest was known to the vendor at the time of the contract. She refused to join in the conveyance to the purchaser. It was held by Sir K. Bruce, V. C., that the vendor was not entitled to rely on the before-mentioned stipulation as a ground for rescinding the contract, but that the contract must be specifically performed, with compensation in respect of the life-interest. Nelthorpe v. Holgate, 1 Coll. 203.

English Cases.-Rolls' Court.

ENGLISH CASES.

the defendants, Kerrison and wife, it appeared that a settlement was executed on their marriage, by which the share of Mrs. Kerrison in the trust funds was assigned to Before the Right Honorable Lord LANGDALE, of herself and husband, with remainder to trustees upon certain trusts for the benefit

THE ROLLS' COURT.

Master of the Rolls.

the issue of the marriage, and as there were two children of such marriage, these defendants submitted that such trustees and children ought to be parties to the suit.

James Cowan died on the 23rd of Decem

ber, 1823, having by his will appointed James Lowe, since deceased, and the defendant, De Tastet, executors of his will; and having, as the bill alleged, left sufficient assets to answer the 4,000l. covenanted to be paid by him. William Bishop, the trustee, died in 1830, having, as was alleged by the bill, duly accounted for and paid over all moneys received by him on account of the trust funds. The bill also stated, that in consequence of the plaintiff being resi. dent out of London, the defendant De Tastet, took upon himself the active manage. ment of the trusts, and that the plaintiff was not aware until March 1840, when the agents of De Tastet sent to the plaintiff's solicitor a statement of the trust funds, together with certain powers of attorney for the plaintiff's execution, that the 4,000%. had not been received and invested according to the trusts of the settlement. Finding, however, that a considerable portion of this sum still remained outstanding, he refused to give any authority for De Tastet or his agents to receive any further dividends, and shortly afterwards filed the present bill, by which he prayed that an account might be taken of all sums of money paid or invest

By the settlement made on the marriage of James Cowan, deceased, with Caroline Cowan, then Caroline Yaldwyn, all the moneys, stocks, funds, and personal estate, to which the said Caroline Yaldwyn was or might become entitled under the will of her late father, Richard Yaldwin, were assigned to William Bishop, the plaintiff, G. F. Gordon, and the defendant, Firmin de Tastet, upon trust to pay the dividends and annual produce to the said James Cowan and Caroline Yaldwin and the survivor for life; and after the decease of the survivor, that the trustees should stand possessed of the trust funds upon trust for the children of the marriage, in such shares and proportions as the said James Cowan and Caroline Yaldwined by Lowe and De Tastet, as the execu should appoint, and in default of appoint- tors of Cowan, in respect of the 40007., ment, for the said children equally. The and that what should be found due from the settlement also contained a covenant by the estate of Cowan in respect of it might be said James Cowan that his executors or ad- paid and invested by the defendauts Lowe ministrators should, within twelve months and De Tastet, as his executors, upon the after his death, pay to the trustees the sum trusts of the settlement, and if necessary, of 4,000l. with interest from the time of his that the usual accounts might be taken of death, which should be held by them upon the estate and effects of Cowan possessed the same trusts, for the benefit of Mrs. or received by those defendants, and that Cowan and the children of the marriage, as the same might be administered; and that were declared respecting the personal es- if necessary a receiver might be appointed; tate of Richard Yaldwyn. There were is- and also, if necessary, a new trustee in the sue of the marriage three children; viz:- place of the defendant Firmin de Tastet, Frances, the wife of Henry Holl; Caroline, who was resident out of the jurisdiction of the wife of Wm. Kerrison; and James Alex. the court. The defendant Lowe having Cowan, an infant; all whom were made died since the filing of the bill, his personal parties to this suit: but by the answer of representatives were brought before the

English Cases.-Rolls Court.

court by bill of revivor. The case having | Before the Right Hon. Sir LAUNCELOT SHADbeen partially opened,

WELL, Kt., Vice Chancellor of England. GARDINER V. MARSHALL.-5th May 1845

MARRIED WOMEN.-SETTLEMENT.-COSTS.

Where a husband had received the fortune of his wife and employed it in his trade, and then had become bankrupt, and a part was afterwards realized out of his assets. Held, that the wife had an equity as against the assignees, to have the whole of this fund settled upon her.

The costs of a motion reserved till the hearing, will not be included in the costs of the suit, by a general reservation of costs at the hearing.

Mr. Tinney and Mr. Bagshawe, for the defendants Kerrison and wife, took a preliminary objection for want of parties. The trustees under their marriage settlement and the children of the marriage being interested in taking the accounts sought to be directed, it was necessary that they should be brought before the court previously to any order being made in the cause; and it was also necessary that the personal representatives of Wm. Bishop, who might prove to be a defaulting trustee, should be made THIS was a bill to have the whole of a parties. certain part of the fortune of a married woMr. Kindersley and Mr. Miller, for the man settled upon her, under the following plaintiffs, submitted that as the suit was sub-circumstances: No settlement had been stantially a suit by one trustee against an-made of her fortune upon her marriage; other for a breach of trust, and to recover but her father had from time to time adthe trust funds, it was not necessary to make vanced various sums, amounting altogether any of the cestui que trusts parties, and that at all events the interests of those on whose behalf the objection was taken would be sufficiently protected by the parties already before the court in the same interest; and that with regard to the deceased trustee, the allegations in the bill that he had duly accounted, was an answer to the objection; They cited Franco v. Franco, 3 Ves. 75. May v. Selby, 1 Yo. & Col. C. C. 235.

to 6,000l. to her husband, who had employed them in his trade. The wife was also entitled to a sum of nearly 6,0001. under her uncle's will. This also had, with her consent, been lent to her husband for the purpose of being employed by him in his trade, on certain securities, which afterwards proved unavailable. The husband had become bankrupt, and a sum of 4,5001. had been realized out of his assets, which the bill sought to have settled upon the wife The MASTER OF THE ROLLS.-There are for her life. The assignees opposed the no good grounds for these objections, and the claim. They urged that the present fund allowance of them can only be productive of was quite distinct from that out of which addelay. If it were desired, there might be avances had been made to the husband; and reference to the master to inquire whether that a wife's equity to a settlement had there were any and what children of the never been extended to the whole fund, exmarriage of Mr. and Mrs. Cowan, and cept in cases of cruelty or desertion, neiwhether any assignment or appointment ther of which were here alleged, but only had been made of any share of the trust misfortune. It appeared that the marriage funds to which either of the parties became had taken place in 1815; from that time entitled; but if the cestui que trusts seek a until 1835, when the bankruptcy took place, general administration of the trust property, the husband had supported the wife, except they must file a proper bill for the purpose, during a short period in 1833. Subsequentas the object of this suit is limited to the re-ly the wife had been supported by her own covery and investment of the 4,0001. The relations, who, during a part of the time defendants having adopted his lordship's suggestion, an inquiry was directed according to the terms of it, and a reference was also ordered to ascertain how much of the 4,0001. had been received, and to take the usual accounts of the estate of James Cowan, and whether the defendant De Tastet had any and what lien on any part of such estate.

had supported by her husband also, while he was living with her. The case came on for further directions, and on exception to the master's report, which found that the whole of the fund in question in the suit ought to be settled on the wife,

Mr. Anderdon and Mr. Freeling for the assignees.

tiff.

Mr. Bethell and Mr. Rolt, for the plain

English Cases.- Exchequer.

680; Watkyns v. Watkyns, 2 Atkins, 96; Before the Rt. Hon. Sir FREDERICK POLLOCK, Priddy v. Rose, 3 Mer. 96; and Green v. Otto, 1 Sim. & Stu. were cited.