The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1832-11-30 00:00:00

LAW INTELLIGENCE.

IMPORTANT TO CORN MERCHANTS,

GIBSON AND ANOTHER V. LUPTON AND WOOD.
This was an action tried the last March assizes, at York, be-
fore Mr. Justice Alderson, in which a verdict was taken for
the
plaintiffs, for the sum of £623 7s. 5d., subject to the opinion el
the Court upon a special case.
The action arose out of the following order, given by the 4,e' -
fendanti to ad agent of the plaintiffs, who are merchants resit'.
ing at Hambirrg:
Ordered of the house of John Fisher and Co., of Hamburg, ,
a small loading of wheat, say 750 or 800 quarters of the best red
wheat, selected from the most favoured districts, where it can
be procured the most free from sprouts, the heaviest in weight,and the best in colour. As to the price, it is left to their dis-
cretion, minding to pay proper attention to our interest, both in
that as well as time of purchase, and to effect the said purchase
immediately, if it is imagined that betwixt the present time and
Christmas to be done the best. Payment for the same to be ,
drawn upon each of us in the usual manner; supposing that this'
is for one-third part thereof to be drawn on the purchase, and
the other two-thirds at the time of shipment, and handing- bin
of lading. (Signed) " JONATHAN LurfON•
"Leeds, Dec. 1, 1830. "THOMAS WOOD."
In pursuance of this order, the plaintiffs purchased 756 quar-
ters of wheat, and drew at the separate times bills of exchange
upon each of the defendants for one-half of the price, which
they accepted. Each of the defendants paid his first accept-
ances. when they became due, and the defendant Lupton pail
his second and third acceptances, but the defendant Wood be-..
came a bankrupt, and his second and third acceptances were
dishonoured—to recover the amount of which, from the defence
ant Lupton, the present action was hrought upon the contract;
The special case set forth a deal of correspondence that ha'
passed between the parties.
Mr. Serjeant Taddy argued the case on' the part of the plain:
tiffs, and Mr. Serjeant Wilde for the defendant Lupton.
On the 13th instant the following judgment was delivered by
the Lord Chief Justice :—There is no question in this case as to
any partnership inter se between the defendants, for the easei
states that there was no general partnership between them, an!
the facts, that each was to pay upon his one moiety of this Pow
cular cargo, that the freight and charges were paid by the mon,'"
of Lupton, and that the cargo was, upon arrival at Leeds, eena"Y,
divided between them before it was warehoused, sufficiently she!'
is
that there could not be any joint interest in profit and loss,
essential to constitute a partnership. The question is, wheel
';
the wheat was sold to the defendants upon a joint contract e
that is, whether upon the correspondence a set other facts 'eL . •
out in the case, the defendants gave the plantiffs reason to nn:
derstand and believe that they had the joint security of both n,e •
fendants for the whole cargo, or whether the fair inferencde to
_
drawn by any reasonable man was not that each of the efen".
ants contracted separately for his moiety of the joint cargo.,
Now, upon looking at the whole of the correspondence,oa pd
be
ti
at the other circumstances of the case, this appears to us I
nn,
the proper construction; though there are some
in the letters that, if taken separately, raise ambiguity,
must be admitted, and unless such had occurred, nod p
could have arisen; but we think that the preponderancy. 15
very great in favour of the construction of the contract betni
separate and not joint. The plaintiffs rely upon the origi"!
order being signed by both defendants, and that the defenthrl!
are informed in reply that the purchase has been made on their
of
joint account. This is the strongest expression iu favou!
the plaintiffs' construction; on the other hand the original
order itself states the payment for the same was to be draw,'
upon each of the defendants, which imports, most clearl3-, _
,
separation of interests and of liability..—Then again, t,tr.,
fact that the plaintiffs' upon one occasion draw a bill
or
one moiety of the price upon one of the defendants, and 'e
the other moiety upon the other defendant, a circuinstanc
by no means usual in a joint concern, leads to the sames
conclusion. Why should the plaintiffs' agent, tral!_
mitting the order, give information of the solvency of tjile
defendant Wood, who was before a stranger to them, if
defendant Lupton, who had dealt with them before. Wa:'
liable for the whole. The very form of address of all the letters
voice, and the indorsement of the bill of lading by
sent to each defendant to a separate abode, the form of the
was
ant separately,.agree with the supposition that the contractte
separate, not joint. The proposal to the plaintiffs, by th
time
fendant Lupton, in his letter of the 17th February,
is
th
plaintiffs should re-sell, in which he states that he has. nothis
alto-
gether the authority of Wood, whom in the letterhhi
he
calls
half
Co., but in the letter of the 11th of May he calls him
to
mo
distinct
owner : all which point to separate interests an
to both
rights. In the plaintiffs' letter of the 29th of February,
rou both per-
fectly this expression occurs :" We hold 3
bill of f
fectly harmless for this advance up to the period o
tion that
an expression more compatible with the supposi
and
the plaintiffs were trading with the defendants as separatelyn,
not as jointly liable.—lt is from this and some other exressio
Purchased
of a similar nature, that we infer that the defendants
must
each of them a moiety of the cargo, and that the plaintiffs ,
usion• at
have known such to be facts, and as this is the concl
state;
we think the jury ought to have arrived upon this s
ment of fact, we direct the postea to be delivered to defendant
each defen
•

41
COLONIAL ADMINISTRATION AGAIN !—Court qf Kinq's Bench, 4i
Saturday, No. 21—THE KING V. THE EAST INDIA COMPANY.
—This was an application on behalf of the Board of Control, to
grant a rule to show cause why a mandamus should not issue, 9ii
calling upon the Directors of the East India Company to irl- Il
form the Court why they refused to send to India a
which had been approved of, and finally settled by the officers 14
of the Board.—The ATTORNEY-GENERAL said he made this aP-
-1 • 'S
which
on the authority of the Act of Parliament 33 Geo. 11 -,
,``s
which provided, that when despatches originated with the Court
:tt
of Directors, they should be sent to the Board of Control to be.
settled ; that they should be inspected, and such alterations as ,1]
appeared proper should be made, and then returned to the Di-
rectors, who are required to transmit them to India. On the M
3d of April last, the despatch, which they refused to send out Is
was agreed upon by the Directors, and was sent to the Board ki]
of Control ; some alterations were made, and the document was t,'
'
remitted to the Court of Directors, when some amendineal
'tt
were proposed and inserted, and the despatch was again ri:,_
back to the officers of the Board, who finally settled it, and r, , k
turned it to the Directors of the. Company, who refused to sea! 0
it to India, and now endeavoured to evade the provisions of th,'
Act of Parliament,' by rescinding their original despatr?'
despatch . .
'1
"The King v. the East India Company," reported in Maute
i;
and Selwyn, was a case in point, and was one in which a 7011 0
damus was granted under circumstances precisely similar to the
present—Rule Nisi granted.
t.IIOII
VICE-CHANCERY.—Monday„ Nov. 26.—WioarroN v. LOP
this morning, in this case, which was argued in the
DURHAM.—His Honour the VICE-CHANCELLOR gave judgraenti,
last week. The bill was filed against Lord Durham, for. the
1,1
purpose of having it declared that a legacy of £10,0009 give vt
to the wife of the plaintiff by her father, General Lambton, wag
payable. Mr. John Lambton, the young lady's uncle, had
44
given her a legacy of £5,1300, and, upon her marriage with
_,,the •111
plaintiff, her father gave her a marriage portion of £lo,oou, St
000
having previously given her, by his will, a -legacy of £lO, 9 '
which he declared to be over and above that given her by her
the
uncle. Under these circumstances, the question before • vo
Court was, whether the marriage portion was not to be com-. ki
dered an adem tion of the le H• Honour was clearly ot ‘l4lv,
P gacy. is. .
the rule;
opinion, that the present case did not come within Y
that where a parent gave a legacy to a child, and afterward` . 0,, t
upon the marriage of that child, advanced a sum of money, that
_ irlol
prima facie, it was to be taken as an ademption of the legacy
d 01
the presumption of law being, that the parent would not intend 44‘4,4
to give double portions. The Court would, therefore, decree fa_
the payment of the legacy, with interest; and as Lord DurhoTT • !itt,
had admitted assets, and had rested his defence solelxon a pour u' Nt
of law, which had failed, he must .pay the costs. His 11°he . 1
COHIS i 1,4
observed, that, in ordering Lord Durham to pay the coats,
wished it to be understood that he attributed blame to no on
e*