JOMBART

t.

WOOLLETT.

[391]

the 31st of October; a bill for 53l. 11s. 3d. in favour of Hives and Atkinson, dated August 5, 1836, and which became due on the 28th of August; and a bill for 644l. 13s. 9d. in favour of Charles Fea, dated August 9, 1836, and which became due on the 9th of November following. All these bills were duly accepted by Joseph Woollett in the name of the firm of Woollett and Son.

In order to enable Woollett and Son to take up these acceptances, as they became severally due, Jombart & Co. from time to time remitted to Woollett and Son, by whom they were duly received and acknowledged, the following bills of exchange, which Jombart & Co. had purchased, and which were duly accepted and made payable in London; namely, a bill for 3001. on Esdaile & Co., which became due on the 16th of September, 1836 another bill for 300l. on Esdaile & Co. which became due. on the 25th of October; a bill for 500l. on Gower & Co., which became due on the 3rd of November; a bill for 501. on Guillaume & Co. which became due on the 18th of November; a bill for 1,000l. on Messrs. Trye and Lightfoot, which became due on the 20th of November; and a bill for 4401. on Messrs. Trye and Lightfoot, which became due on the 23rd of November; together with a Bank of England note for 101., which was received by Woollett on the 18th of October.

The nature of the arrangement and the course of dealing between the parties were chiefly to be collected from the language of the correspondence which passed between them, while these transactions were going on.

In the month of July, Jombart & Co. sent the following letter to Woollett and Son: "LILLE, 26th July, 1836. On our particular account you have accepted our draft in favour of Osborn and Son, for 5881. 58. 8d. under date 21st current, at ninety days' date, for which your account is credited. We have this day drawn upon you a bill for 4781. 6s. 5d. at ninety days' date in favour of Moens, Dauncey & Co. And we have also the pleasure to inform you that Messrs. Schaezler & Co. of Liverpool will draw on our account a sum of about 3301."

On the 28th of July, Jombart & Co. again wrote to Woollett and Son as follows: "Be so good to take note that we

have authorised Mr. C. Fea of Canterbury to draw upon you on our account, for the sum of 500l., which we beg you will duly honour."

Immediately afterwards, Woollett and Son wrote and sent the ollowing letter to Jombart & Co.: "LONDON, 29th of July, 1836. We have to observe that we have accepted, on your account, your bills upon us, 5881. 5s. 8d., due the 21st of October, in favour of Osborn and Son, and 4781. 6s. 5d. due 24th of October, in *favour of Moens & Co., which we have carried to your debit, relying upon you to cover us in due time. According to your authorisation, your friends Messrs. Schaezler & Co. have drawn upon us on your account 340l., 27th current, at ninety days date."

In the month of August, Jombart & Co. wrote to Woollett and Son as follows: "LILLE, 2nd August, 1836. We have your letter of the 29th ult. You have now under acceptance for our account the sum of

and moreover we have drawn upon you

which will make together

£1,906 12 1

644 13 9

2,551 5 10

We shall not draw upon you beyond this sum without having your authorisation, considering it as if you had limited our credit with you by acceptance less in amount. You must tell us frankly, and we will cover you immediately.'

On the 4th of the same month Woollett and Son wrote to Jombart & Co. as follows: "We are favoured with yours of the 2nd, by which we observe that you intend drawing upon us for 6441. 13s. 9d., which we shall accept to your debit. You are already informed of our principle of credit which we afford to our friends. Above all in banking affairs, as you desire us to speak frankly, for the future you will consider this facility established between us for the amount of 2,000l."

On the 9th of August, Woollett and Son wrote to Jombart & Co. as follows: "We have received your letter of the 6th, advising your bill of 644l. 13s. 9d. in favour of C. Fea, which we have accepted to your debit."

On the 8th of the same month, Jombart & Co. wrote to Woollett and Son as follows: "We confirm our letter of the 6th,

JOMBART

27.

WOOLLETT.

[ *392 ]

[393]

v.

JOMBART advising our bill of 644l. 138. 9d. in favour of C. Fea, at three WOOLLETT. months' date. Enclosed we remit you 300l., due the 13th of September, which we beg you to carry to the credit of your account."

[ *394 ]

On the 11th of August, Woollett and Son wrote to Jombart & Co. as follows: "We confirm our letter of the 9th current, which was crossed by yours of the 8th, by which we have received 3007., due 13th (16th) of September, which shall be carried to your credit."

On the 23rd of the same month, Jombart & Co. wrote to Woollett and Son as follows: "We have your letter of the 11th which requires no answer. Enclosed we remit 8001., due 25th of October, which we request you to get accepted, and carry the same to the credit of our account. We recall to your recollection a bill for 531. 11s. 3d. payable 25th current. Be pleased to pay it, and pass it to our credit."

On the 26th of August, Woollett and Son wrote to Jombart & Co. as follows: "You remit us, by your favour of the 23rd current, 3001. due 22nd (25th) October, upon Esdaile & Co., upon which we will do the needful, and pass it to your credit as soon as received."

On the 15th of October, Jombart & Co. wrote to Woollett and Son as follows: "Enclosed we remit 500l. due 31st October, 501. due 15th November, 10l. at sight, making 5601., of which please to give credit and acknowledge receipt."

On the 17th of the same month, Woollett and Son wrote to Jombart & Co. as follows: "We have received your favour of the 15th current, covering 101. at sight, 500l. due the 31st October (3rd November), 50l. due 15th (18th) November, amounting to 560l., to your credit when due."

On the 19th of October, Jombart & Co. wrote to Woollett and Son as follows: "By your letter of the 17th current, you acknowledge the receipt of remittances which you have carried to the credit of our account. You have herewith a bill for 1,000l. upon Trye and Lightfoot of your city, to your debit. Please to acknowledge the receipt."

On the 21st of the same month, Woollett and Son wrote to Jombart & Co. as follows: "We have received your favour of the

19th, covering 1,000l., due the 17th (20th) of November, upon Trye and Lightfoot of this city, to your credit."

On the 24th of October, Jombart & Co. wrote to Woollett and Son as follows: "By your favour of the 21st current you acknowledge our remittance of 1,000l. Enclosed you have a bill for 4401. due 20th November, upon Trye and Lightfoot, which we beg you to place to our credit."

Several other letters passed between the parties, in the course of these transactions, but the foregoing are the most material.

On Saturday the 22nd of October, 1836, Joseph Woollett became insolvent, and early on the following Monday he stopped payment. He gave immediate notice of the fact to Jombart & Co.; and by a letter, dated the 26th of October, after acknowledging the receipt of the bill for 440l., he informed them that he had sent it for acceptance, and would hold it at their disposal; and by another letter dated the following day, he returned that bill to them.

With the exception of the bill for 531. 11s. 3d. drawn on Woollett and Son, in favour of Hives and Atkinson, all the bills accepted by Woollett on the plaintiffs' account were dishonoured, and remained unpaid at the time of his insolvency, and were all subsequently taken up and paid by the plaintiffs. Of the bills remitted by the plaintiffs to Woollett for the purpose of meeting his acceptances, the whole had been discounted or sold, and the proceeds received by him prior to his insolvency, with the exception of the two bills for 50l. and 1,000l. which then remained in his hands. It appeared that, at the date of Woollett's insolvency, he was indebted to the plaintiffs in upwards of 1,000l. beyond the amount of these bills. Under an arrangement with the creditors of Woollett, the two bills were afterwards sold, and the proceeds carried to the account of the other defendants (who were three of the principal creditors), upon trust to abide the result of any legal proceedings that might be taken.

The bill prayed that the right of the plaintiffs to the property in the two bills of exchange might be declared, and the proceeds paid to the plaintiffs, and that, in the meantime, the defendants.

JOMBART

v.

WOOLLETT.

[ *395 ]

JOMBART

might be restrained from distributing such proceeds among the WOOLLETT. insolvent's general creditors.

V.

[ *396 ]

[ *397 ]

[ 398 ] [ *399 ]

[400]

Woollett afterwards became a bankrupt, and his assignees were brought before the Court by supplemental bill.

The VICE-CHANCELLOR having granted the injunction, the defendants appealed against his Honour's order; *and it was arranged between the parties, that the LORD CHANCELLOR's judgment on the appeal-motion should be taken as concluding the question in the cause.

The motion was supported by an affidavit, which detailed the facts and set forth the letters as they have been already stated.

Mr. Wigram and Mr. Richards, in support of the appealmotion:

The accidental circumstance that these two bills happened *to remain in specie in the hands of the London agent, cannot affect the question. If they were his to deal with as his own, it signified nothing whether they were actually converted into cash, or continued in the form of paper at the time of his insolvency. [Unless he was to be at liberty to treat the bills as cash, he must have been out of pocket by large sums.]

In Bent v. Puller (1), a case which in its circumstances strongly resembled this case, Mr. *Justice BULLER said, that "in order to make it a specific appropriation of bills, there must be a lodging of a bill for a bill, or at least several deposited at once as one entire transaction to answer some particular purpose; whereas here the bills were paid in on a general running account, and the amount of the bills claimed as a deposit not even corresponding with the amount of those for which they were supposed to be deposited.

*

The Solicitor-General and Mr. Bligh, contrà :

* The bills were remitted for the purpose of "covering," that is, being security to Woollett for, the amount of the liabilities which he was from time to time undertaking on the plaintiffs' behalf by accepting their drafts. For the amount of those liabilities he had a lien on the bills remitted; and as those

(1) 2 R. R. 654 (5 T. R. 494); and see Er parte Surgeant, 1 Rose, 153.