*afterwards paid by the plaintiff. Then the purpose, for which the property in question was sent, was answered by the plaintiff himself; and that lets in the doctrine of Lord Hardwicke in the case Ex parte Dumas, which I consider immediately and directly in point. The instant the acceptances were taken up by the plaintiff, and the end for which the goods were sent was answered, I consider the property as revested in the plaintiff. But it has been asked, When and how was this property revested in the plaintiff? I consider it to have been a qualified and conditional property in the defendants; it was not vested in them as an absolute and unconditional property by the transmission for a particular purpose: it was vested in them only for a special purpose, and the instant that purpose was answered in another way, the property was revested in the plaintiff. Then it was asked, What would have been the case had the acceptances been discharged by the bankrupt? I answer, that in such a case the purpose for which they were sent would have been answered by the bankrupt, and then the plaintiff would have had no property in the goods; then that property, which was before conditional, would have become absolute in the bankrupt. This case comes directly within that of Dumas; for here the goods were sent for a particular purpose; the property vested in the defendants for a particular purpose; and as soon as that purpose could not be answered by the bankrupt, or was otherwise answered by the plaintiff, the property revested in the plaintiff; and therefore I think he may maintain this action of trover to recover back this property, or the value of it.

1793.

TOOKE

V. HOLLING

WORTH.

[ *234 ]

A writ of error having been brought on the judgment in this case it was twice argued in the Exchequer Chamber. And now the judgment of this Court was pronounced by

LORD CHIEF JUSTICE EYRE, who, after stating the special verdict, proceeded thus:

The case was well and laboriously argued at the bar. It was † 2 Ves. 582; and 1 Atk. 232.

1795. May 16.

[2 H. Bl. 501]

R.R.-VOL. II.

P P

1795.

HOLLING-
WORTH
V.

TOOKE.

In Error.

very full of thorny points, which necessarily required from us a good deal of investigation. The consequence has been that a length of time, perhaps somewhat inconvenient to the parties, has elapsed before we could come to an agreement. We have at length come to an agreement, and we are all of opinion that this judgment ought to be affirmed. I shall state very shortly the reasons which have induced me to concur in that opinion. The right of the parties to the light gold and bills, which are the subject of this action, appears to me to depend principally upon the true construction of the original agreement between Tooke and Daniel, made two years and upwards before the bankruptcy. [2 H. Bl. 502] That agreement consisted of two parts; one being a contract for a bargain and sale of light gold by Tooke to Daniel at a given price, to be paid for by bills of exchange payable at two months, a simple and unembarrassed transaction; the other being a contract, the effect of which was that Daniel should become Tooke's banker, that he should accept his bills, Tooke remitting value to the amount of such acceptances in bills and in light gold. That is plainly the effect of the latter part of the agreement. They might have dealt as mere merchants, the one selling and the other buying this article of light gold, and paying for it according to agreement. And had this been a case of that kind, the transaction would have had one complexion, and the argument upon it, I think, would have taken one course. But as they might act in that manner, so they might upon the latter branch of the agreement act as principal and factor, or principal and banker, and not as mere merchants; and the idea of bargain and sale would enter no farther into their transactions upon that branch of the agreement, than merely as it went to fix the price at which the light gold which should be remitted from time to time should be carried to the account of Tooke as cash, and be applied by Daniel, as Tooke's agent, in payment of the acceptances which he had made on the credit of Tooke. There would certainly be this mixture of bargain and sale in any transactions which should take place even under the latter branch of the agreement, which in other respects would be the transaction of principal and factor, or principal and banker. But though there be this mixture, yet I think the case of the

light gold cannot, in respect of that circumstance, be separated from the case of the bills. If Daniel was to be considered as factor or banker only with respect to the bills which should be remitted, he ought to be considered as banker or factor only as to the light gold, with an agreement on his part to apply that light gold in payment of his acceptances at the rate fixed in the former part of the agreement. In a word, the bargain and sale of the light gold, when considered under the second branch of the agreement as a remittance to pay the acceptances, is but an incident in the business of the principal character of factor or banker. Now, if it can be established that Tooke and Daniel acted in the characters of principal and factor, their respective rights of property are very easily ascertained: the general right

1795.

HOLLING

WORTH

v.

TOOKE.

In Error.

of property would be in Tooke, the special right of property in [2 H, Bl. 503] Daniel, to enable him to execute the commission with which Tooke had entrusted him, and he would also have a lien as against the general property of his principal, for the balance of his account. In this way of considering the case, we may lay all this story of the bankruptcy entirely out of the question. For suppose Daniel had remained solvent, Tooke might at any time have paid him his balance, including any acceptances he might be under, and have withdrawn his effects out of Daniel's hands, and there could have been no room for a question between them, but merely as to the profit upon the light gold, estimated at the price in the agreement. Now I think that would depend upon the question whether the light gold was sold under the first part of the agreement, or whether it was to be considered as a mere article of remittance under the latter part; and according to my view of the case I think that question would be decided against Daniel. The assignees standing in the place of Daniel, certainly can be in no better condition than Daniel himself: they may be in a worse condition if many of the arguments which we heard at the bar, and of which we have an account in print, are well founded. But those arguments take a very wide compass indeed; they involve, as I have already said, points of considerable difficulty upon which we have not formed an opinion, and upon which perhaps an opinion ought not to be formed till the points come judicially and unavoidably before the

1795.

WORTH

v.

TOOKE.

In Error.

Court. If that discussion can be avoided now, I think we do our HOLLING duty by delivering an opinion upon narrower grounds. The ground I have taken is very distinctly marked, and very well enforced in the argument of one of the judges of the Court of King's Bench.* He concludes somewhat differently from me, but the ground work is there. In my opinion it may be sustained, it steers clear of all difficulties, and it reaches the substantial justice of the case, because it meets the only argument of considerable weight that struck my mind, namely the possibility that the bankrupt might have been the creditor, and the injustice which would have been done to his estate if these effects could, on account of the bankruptcy, have been withdrawn from the mass of his estate. Now, as the principle upon which my [ 2H. Bl. 504] opinion proceeds is, that the bankrupt would have a lien upon those effects for every thing for which his estate was creditor, that difficulty is removed. Upon this ground I concur in thinking that the judgment in this case ought to be affirmed, and it is the unanimous opinion of the Court that the

Judgment be affirmed.

1793. May 4.

[239]

GALE v. WALSH.

(5 T. R. 239-240.)

In an action against the drawer of a foreign bill of exchange a protest for non-acceptance must be proved.†

In an action against the drawer of a foreign bill of exchange the question was, Whether it was necessary to prove a protest for non-acceptance; which was reserved by Lord Kenyon before whom it was tried at the Sittings after last Michaelmas Term, when a verdict was taken for the plaintiff.

Mingay for the defendant moved in last Hilary Term to enter a nonsuit; and the Court thought the matter so clear on the ground of the protest being part of the custom of merchants in the case of a foreign bill, that they suggested to the counsel

* This probably alludes to the opinion of Grose, J. (reported, supra).

+ Bills of Exchange Act, 1882, 45 & 46 Vict. c. 61, s. 51 (2).

for the plaintiff the expediency of making the rule absolute in the first instance to save unnecessary expense; and the rule was then made absolute. But on a subsequent day,

Erskine, for the plaintiff, wished the rule to be opened again, intimating that it would appear upon the learned judge's report that the drawer had no effects in the hands of the drawee, in which case he contended that no protest was necessary; and that the want of notice to the drawer of the non-acceptance of an *inland bill of exchange had been held to be no objection under similar circumstances: the rule was accordingly suspended. But on this day,

Lord KENYON, in reporting the case, said, that the fact relied upon by the plaintiff's counsel did not appear at the trial; and accordingly

The rule to enter the nonsuit was now made absolute.

1793.

GALE

V.

WALSH.

[ *240 ]

GALLINI v. LABORIE.

(5 T. R. 242-244.)

Having regard to the provisions of 10 Geo. II. c. 28, s. 2, and 25 Geo. II. c. 36, ss. 2, 3, no action can be maintained for the breach of an agreement "to dance at the King's Theatre in the Hay-Market, or at such other place as the plaintiff should appoint," if it appear that no licence for that theatre was granted by the Lord Chamberlain, as required by the 10 Geo. II. c. 28; and that the plaintiff did not request the defendant to dance at any other place which was licensed.

THE plaintiff brought this action upon a contract by which the defendant, a foreigner, undertook to come over to England in order to dance ballets at the Italian opera in the Hay-Market, called the King's Theatre, or at such other place as the plaintiff should appoint. The defendant never came at all. But it appeared that during the time for which the defendant had engaged there had been no licence from the Lord Chamberlain for the Opera House, though the plaintiff's company had exhibited dancing entertainments there but the plaintiff had a licence for performing musical entertainments at an house in

1793.

May 4.

[242]