the money was received to the use of the plaintiff, and then have set out the circumstances under which they claimed to retain it?] It was not necessary to plead specially. The money never belonged to Scott. It is quite immaterial who was entitled to the balance beyond the amount of the defendants' debt. Suppose there had been no debt due from Coupland to the plaintiff, and there was a debt owing by him to the defendants, could the plaintiff then, by a frauluent use of his name, prevent a set-off between Coupland and the defendants? [Maule J. That would be a case of mutual credit. The defendants would have trusted Coupland, and he would have trusted them.] It is submitted that the defendants have a right to say that Coupland gave them credit, that the goods are his, and that he handed over the goods to them, and the defendants made him advances thereon. It was never left to the jury whether the plaintiff had a lien on the goods. Supposing the jury to have, in effect, found that the plaintiff did not know that Coupland was the defendants' agent, their verdict was clearly against evidence. [Tindal C. J. The jury may have found that, looking at the whole case, no possible injury could have resulted to the defendants from the dealings between the plaintiff and Coupland.] It is a fallacy to look only at the ultimate result. Looking at the questions left to the jury, their verdict was not warranted by the evidence.

TINDAL C. J. I can see no reason for sending this cause down to a second investigation. The action is for money had and received; and it appeared by various documents produced at the trial, that the defendants uniformly dealt with the plaintiff as the shipper of the goods, that they treated the proceeds thereof as his, and that they stated the balance of each transaction to [1044] be the plaintiff's money. The money in question was therefore clearly had and received to the use of the plaintiff, unless the circumstances shew that a fraud was committed by the plaintiff and Coupland, which was productive of injury to the defendants. Two questions were left to the jury. The first was, whether, as between the plaintiff and the defendants, the goods were the property of the plaintiff; and the jury have found that they were. The second question was, whether any fraud had been practised between the plaintiff and the defendants to the injury of the defendants, and the jury seem, in effect, to have found that there had not. I am not disposed to disturb the verdict, particularly as no new light can be thrown on the case, inasmuch as Coupland was examined at the trial. I am at a loss to see what bearing the alleged misconduct of Coupland and the plaintiff can have upon the case. One effect is said to be, that larger advances may be made on the consignments sent to India. Even if that were so, it is admitted that all those advances were deducted before the balance was struck for which the verdict was given. No injury resulted to the defendants. On the contrary, they reaped an advantage from the transaction by getting a larger commission than they would otherwise have done. Consequently I cannot see how the circumstance that the plaintiff allowed Coupland's goods to pass in his name, could affect the question between the plaintiff and the defendants. It has been admitted that if the latter had had no demand against Coupland, they could not have denied that the balance in their hands belonged to the plaintiff. But how can that balance be less money had and received by them to the plaintiff's use, because it turns out that Coupland is largely indebted to the defendants upon another account? It seems to me that justice has been done, and that we ought not to send the case to a second trial.

I

[1045] COLTMAN J. I am of the same opinion. The money in question must be assumed to have been had and received to the use of the plaintiff, unless the dealings between the plaintiff and Coupland amounted to a fraud upon the defendants. agree that the conduct of these parties is not altogether correct; for I think that persons ought to let the real nature of their transactions be known, and that concealment is unfair and destructive of the confidence which should exist between merchants. The defendants, perhaps, might have had a right to repudiate the contract on discovering its real nature; but they stand in a different situation when the transaction has been completed, and they have the proceeds in their hands. In that position they may possibly be entitled to say, that although they had treated the plaintiff as the owner of the goods, and had held the proceeds on his account, yet, as that was owing to misrepresentation, they would hold such proceeds for the true owner. The question is, whether, as between these parties, the plaintiff is not the true owner. The case might have been different if the defendants had sustained any actual injury; but none has occurred; for they have been repaid their advances, and have received their com

mission on the consignments. It has been suggested that the debt due to the defendants from Coupland has been the consequence of the plaintiff's dealings with Coupland; but I cannot see any legal connection between such debt and the misrepresentation which was made. As between Coupland and the plaintiff, the latter is clearly entitled to this money; and, as between him and the defendants, it is money received to his use, although it might have been different if any injury had resulted to the defendants from the transaction. The jury, however, have found that no injury was sustained by them.

[1046] ERSKINE J. In this case the jury have found that the defendants received the money to the plaintiff's use; and the evidence clearly shewed that the defendants had treated it as money which had come to their hands on his account. But it is said that the verdict cannot be sustained because of a misrepresentation practised on the defendants with the knowledge of the plaintiff, which amounted to a fraud upon them. If it had appeared that the defendants had sustained any injury, it would have been material to consider whether such a fraud had been committed, and whether the jury had come to a right conclusion upon that point. Whether the consignments were made in the name of the plaintiff for the purpose of enabling Coupland to receive larger advances than he would otherwise have obtained, it is impossible to say; but no evidence was given that larger advances than were warranted were made on any goods, except in a few instances, which may be considered accidental. On the part of the plaintiff it has been contended, that the object of the arrangement was not that adverted to, but was, to give the plaintiff a security both for advances made by him in respect of the goods, and for a debt then due to him from Coupland. The latter swore that such was the object of the arrangement, and consequently there was evidence from which the jury might fairly come to that conclusion. There was, therefore, nothing necessarily wrong in the finding of the jury, assuming that fraud alone would have defeated the plaintiff's right of action. But it appears to me that even if the dealings of the parties had amounted to fraud, that would not have been sufficient, unless the defendants could have shewn that they had been injured. But, instead of being injured, they appeared to have been benefited by the commission received by them on the larger amount of goods, which was probably purchased in consequence of the arrangement between the plaintiff [1047] and Coupland. It is also said that Coupland owes the defendants 18,0001., and that, if allowed to retain this money as belonging to him, they might set off against it a portion of their debt. I agree, however, with the Lord Chief Justice, that this case cannot be altered by the fact that Coupland was indebted to the defendants, if they actually received the money to the use of the plaintiff, and incurred no injury from the arrangement between the plaintiff and Coupland. On the whole, I can see no ground for disturbing the verdict.

MAULE J. I also think that this was money had and received to the use of the plaintiff; and as all the facts were clearly brought out at the trial, that the verdict ought not to be disturbed. The object of Coupland in entering into the arrangement with the plaintiff was probably to obtain larger advances from the defendants than he could otherwise have done. When, however, the plaintiff, having received advances from the defendants, made further advances to Coupland, he became the purchaser of an interest in the goods. The plaintiff, therefore, having an actual interest in the goods, and being the party actually contracting with the defendants, Coupland could not interfere between the plaintiff and the defendants, and dispute the right of the former to receive the proceeds. The defendants had the benefit of the contract with them, making advances which were for the benefit of the plaintiff, and afterwards reaping the benefit of that part of the contract which was for their advantage, namely, the payment of those advances and their commission out of the proceeds of the con signments. Having done so, they clearly held the balance to the use of the plaintiff, unless the alleged fraud is an answer to his claim. Assuming that there was a fraudulent representation, by which larger advances were made than would otherwise have been [1048] obtained, or whereby advances were made which would not have been made at all, would such a fraud prevent the plaintiff from recovering? Cases have been cited to shew that a party, on discovering fraud, may rescind a contract into which he has entered. But he cannot take the benefit of part of a contract, and repudiate the rest. Here, the defendants would not have contested the matter with the plaintiff at all if Coupland had not happened to be indebted to them.

dants do not seek to put an end to the whole of the transactions with the plaintiff. They have applied part of the proceeds to the payment of their own advances and charges, and they cannot withhold the balance from the plaintiff. When a person has received money as an agent for another under a misrepresentation, he is bound to pay it over, and if he sustains any injury, he may bring an action against the party guilty of such misrepresentation. Here, these defendants, having received the money under a contract with the plaintiff, cannot now say that Coupland was the real party to the transaction. The plaintiff was not a mere agent of Coupland, but entered into a contract with the defendants, in which contract the plaintiff had an interest. I think that the jury came to a right conclusion; that this was money had and received to the plaintiff's use.

Rule discharged.

[1049] JOHN INMAN TUCKER, WILLIAM TUCKER, AND JOHN JAMES v. WILLIAM SOUTHCOTE INMAN AND ANNA VICTORIA LITTLE. Nov. 23, 1842.

[S. C. 5 Scott, N. R. 843; 12 L. J. C. P. 21: at Nisi Prius, Car. & M. 82. Referred to, Smart v. Tranter, 1888-90, 40 Ch. D. 168; 43 Ch. D. 587.]

In prohibition the declaration objected to the jurisdiction of the ecclesiastical courts to grant probate of a testamentary paper made by S. I., a feme covert, under a power purporting to be contained in a deed, to which her husband was not a party. The plea stated the title of the defendants under the will of S. I., and that they were about to file a bill in Chancery enforcing their equitable right, upon the ground that according to the rules of equity the husband must be taken, by his conduct, to have assented to the deed; and that by the course and practice of that court, in order to obtain the adjudication thereof upon the validity in equity of the said appointment so made (under the will) by S. I., it was necessary that letters of administration with the will annexed, should be granted, limited so far as concerned the right of S. I. to the sum of money which she, by virtue of the deed, had a right to dispose of, and had, by the said will, disposed of accordingly; to the end that such administrator with the will annexed, might be made a party to the suit in Chancery. The replication traversed the allegation of the existence of any such rule and practice of the court of Chancery.-At the trial it was proved that in the case of a will made by a married woman, either with the assent of her husband or under a power, a limited administration is granted by the ecclesiastical court, and that such administration or a general administration, is required by the court of Chancery, before it will allow any party to claim any interest under such will:-Held, that upon this evidence, the defendants were entitled to the verdict.-Held also, upon motion for judgment non obstante veredicto, that the plea contained an answer to the action, as alleging that the defendants would be able to prove in the court of Chancery facts which either amounted to an election on the part of the husband to take under the provisions of the deed, whereby the power was conferred on the wife to make a will, or to an assent by him of the exercise of such power by the wife.

Prohibition (a). The declaration stated that whereas, previously to the marriage of one George Inman, clerk, since deceased, with one Joan Darch, spinster, to wit, on the 19th of January 1760, certain hereditaments situate at Blagdon, in the county of Somerset, were legally conveyed and assured to certain trustees, their heirs and assigns, to the use of the said George Inman in fee until the said marriage, and then [1050] to the use of the said George Inman for life, with remainder to the use of Joan his intended wife for her life, with remainder to the use of trustees, to preserve contingent remainders; and after the death of the survivor of them, the said George Inman and Joan his intended wife, to the use of such child or children of the said marriage in such shares and proportions, and for such estate or estates, as the said George Inman should, by any deed or writing under his hand and seal executed in the presence of two witnesses, or by his last will and testament in writing duly

(a) See the proceedings upon the rule Ex parte Tucker, ante, vol. i. p. 519. 1 Scott, N. R. 379, post, 1079.

executed and attested, limit, appoint or devise; and in default thereof, to the use of the first son of the said George Inman and Joan, and the heirs of the body of such first son lawfully issuing; that afterwards, to wit, on the day and year last aforesaid, the said marriage was duly solemnized; that afterwards, to wit, on the day and year last aforesaid, there was issue of the said marriage, one other George Inman, one Henry Inman, one John Inman, and one Sarah Inman, who afterwards, to wit, on the day and year aforesaid intermarried and took to husband one other John Inman; that afterwards, to wit, on the 1st of January 1795, by an indenture under the hand and seal of the said George Inman, clerk, and made between the said George Inman, clerk, of the first part, and the last mentioned John Inman and one John Whitley of the other part, which indenture was executed by the said George Inman, clerk, in the presence of two witnesses, the said George Inman, clerk, in exercise of the power so given or reserved to him in and by his marriage settlement, appointed the said hereditaments to the said John Inman and John Whitley, their heirs and assigns for ever, upon trust, to receive the rents and profits thereof, and apply the same and so much thereof as should be necessary in the maintenance of the said George Inman the son for his life, and after his decease then, as to one moiety of the said hereditaments, [1051] to the use of such person and persons and for such estate and estates as the said Henry Inman should in manner therein mentioned appoint, and in default thereof to the use of the said Henry Inman, his heirs and assigns; and as to the remaining moiety of the said hereditaments to the use of such person or persons, and for such estate and estates as the said Sarah Inman should in manner therein mentioned appoint, and in default thereof to the use of the said George Inman, clerk, his heirs and assigns for ever; and in which indenture was contained a power for the said last mentioned trustees, in case the rents and profits of the said hereditaments should be more than sufficient, with certain other provisions therein mentioned, for the support and maintenance of the said George Inman the son, to pay over the surplusage thereof from time to time unto the said Henry Inman and Sarah Inman, their executors, administrators, and assigns in equal shares; and wherein was also contained a declaration, that in case the said last mentioned trustees, during their joint lives, should think it was beneficial to sell the said hereditaments, it should be lawful for them to do so, and place out the net produce on government or other good security, and to apply the interest money arising therefrom towards the maintenance of the said George Inman (the son) for his life, in the same manner as the rents were therein before directed to be applied, together with the surplusage, and at his decease to pay all such moneys, together with all interest money or dividends as should be then due and in the hands of the said John Inman and John Whitley, or of the survivor of them, his heirs or assigns, unto the said Henry Inman and Sarah Inman, their heirs, executors, administrators and assigns, equally between them absolutely; that neither the share of the said Henry Inman nor that of the said Sarah Inman in the moneys which might arise by any such sale as aforesaid was by the said in-[1052]-denture subjected to any power of appointment whatsoever; that afterwards, to wit, on the day and year last aforesaid, the said George Inman, clerk, died; that afterwards, to wit, on the 5th and 6th of November, 1795, by certain indentures of lease and release, the release being made between the said George Inman, the son, of the first part, the said Henry Inman and Katherine his wife, the said John Inman and Sarah his wife and John Whitley, of the second part, Robert Blake of the third part, and Peter Cox of the fourth part; and by a common recovery afterwards, to wit, on the day and year last aforesaid, duly suffered in pursuance thereof, the same hereditaments were conveyed, limited and assured to the use of the said John Inman and John Whitley, their heirs and assigns, upon trust, to sell the same and invest the net produce in some of the public stocks, or on government or real security, by way of mortgage, and to apply the dividends. towards the maintenance of the said George Inman, the son, for his life, and to apply the rents and profits in the mean time until the sale, in the like manner; and after the decease of the said George Inman, the son, then to stand possessed of the said trust moneys and the future interest or dividends thereof, upon trust, for the said Henry Inman and Sarah Inman, in equal shares, or in trust for their respective executors, administrators or assigns, in case they or either of them should die in the life time of the said George Inman (the son) and to pay and transfer the same accordingly; that afterwards, to wit, on the day and year last aforesaid, the said hereditaments were sold; that afterwards, to wit, on the 24th of February, 1802, a certain indenture

expressed to be made between the said George Inman (the son) of the one part, and the said John Inman and John Whitley of the other part, was executed by the said George Inman (the son), and which indenture never was executed by the said John [1053] Inman and John Whitley, or either of them, and to which indenture neither the said Henry Inman nor the said Sarah Inman was made or was named as party; by which indenture, after reciting the said hereinbefore recited indenture of the 1st of January, 1795, so far as related to the appointment thereby made of the hereditaments aforesaid, and the uses thereby declared thereof, but wholly omitting the particular trusts thereby declared with respect to the application of the moneys arising from any sale of the said hereditaments; and after reciting that the said hereditaments had been sold, and that the said George Inman (the son) was desirous and willing that the moneys arising from the sale aforesaid, amounting to the sum of 10501. should be vested in the said John Inman and John Whitley, for the uses thereinafter mentioned, agreeably to the intention of the said George Inman, clerk, it was witnessed, that for the purpose of carrying such intention into effect, and in consideration of 1s. to the said George Inman (the son) therein stated to be paid by the said John Inman and John Whitley, the said George Inman (the son) did direct and declare that the said sum of 10501. should from thenceforth be vested in the said John Inman and John Whitley, their executors, administrators and assigns, upon trust, that they and the survivor of them, and the executors, administrators and assigns of such survivor, should apply the interest, dividends or produce of the said sum of 10501., or so much thereof as should be necessary, in the maintenance of the said George Inman (the son) during his life, and after the decease of the said George Inman (the son) upon trust, as to one moiety of such principal sum of 10501. to the use of such person or persons as the said Henry Inman should in manner therein mentioned appoint, and in default thereof to the use of the said Henry Inman, his executors, administrators and assigns, and as to the [1054] remaining moiety or half part of the hereditaments and premises thereby limited and appointed to the effect following, that is to say, to the use of such person or persons, for such estate and estates, either absolutely or conditionally, and with or without power of appointment, and in such sort, manner and form, and subject to such powers, provisoes, conditions and agreements as the said Sarah Inman, by herself alone, and whether sole or covert, should from time to time, by any deed or deeds, writing or writings to be by her signed, sealed and delivered in the presence of two or more credible witnesses, or by her last will and testament, which last will and testament, it was thereby expressed that the said Sarah Inman should have power to make, as to her should seem meet, to be by her signed and published in the presence of three or more credible witnesses, direct, limit and appoint; and in default thereof, to the use of the said George Inman (the son); and by the last mentioned indenture it was provided that in case the interest and dividends of the said 10501. should be more than sufficient, with a certain other provision in that indenture mentioned, for the support and maintenance of the said George Inman (the son) it should be lawful for the said John Inman and John Whitley, and the survivor of them, his executors or administrators, to pay over such surplusage from time to time, or any interest or dividends then in their hands, unto the said Henry Inman and Sarah Inman, their executors, administrators and assigns, in equal shares and proportions; that afterwards, to wit, on the 3d of September, 1807, the said Sarah Inman died, leaving her husband John Inman her surviving, having previously to her death executed an instrument, purporting to be a testamentary appointment, dated the 3d of September, 1807, and purporting to be made in pursuance of the power so expressed to be given to her in and by the said indenture on the 24th of February, 1802, [1055] in which instrument it was expressed that the said Sarah Inman had appointed the interest, produce or dividends arising from all such money or principal sum of money over which she had a disposing power, unto the said John Inman for his life, with remainder to her nephew John Inman, of Minehead, in which instrument it was also expressed that she, the said Sarah Inman, appointed her said husband executor of her said will; that afterwards, to wit, on the 27th of January, 1813, the said John Inman (the husband) died, leaving the said John Whitley him surviving, having previously duly made and published his last will and testament in writing, bearing date the 11th of April, 1812, and thereby appointed James Tucker and the said John Whitley executors of the said will, and who duly proved the same in the Prerogative Court of Canterbury; afterwards, to wit, on the 6th of December, 1831, the said John