Habershon v. Vardon.

before the master;" and the master considered that in this case the advertisement might be dispensed with.

Smythe, for the petition.

Bagshawe, for the secretary of the company, consented.

KNIGHT BRUCE, V. C. The 16th section of the act of 1849 is applicable only to proceedings by or before the master. I think, how. ever, if Master Kindersley is satisfied, and he seems to be so, that the advertisement may be dispensed with; it may be so, and I will now make the order asked.

A gift towards contributions for the political restoration of the Jews to Jerusalem not a charity legacy, and held to be void.

A gift towards the fund for the bishopric of Jerusalem agreed to be a good charitable legacy.

MR. NADIR BAXTER, of Wonston, in Huntingdonshire, by his will, in 1842, gave and devised all his real and personal property and estate, to which he should be entitled, at law or in equity, at the time of his death, to Mr. R. James, Mr. M. Habershon, and Mr. J. Bourdillon, and declared the trusts of certain sums, and then proceeded thus: "Further, upon trust that other 1000l. out of such part of my personal estate as may by law be devoted to charitable purposes, be paid towards the contributions that I do confidently believe and earnestly pray will speedily be begun to be raised under the sanction of our hitherto so highly favored church and nation, in evidence of Christian faith, towards the political restoration of the Jews to Jerusalem and to their own land; and as I conscientiously believe also that the institution by the Anglican Church of the bishopric of Jerusalem is the actual commencement of the great and merciful work of Jehovah towards Zion, to be fulfilled in due time, so I further devise, in trust, other 500l. out of such part of my personal estate as may by law be devoted to charitable purposes, to be appropriated and paid into the fund of the said bishopric accordingly."

Bacon, Rogers, W. M. James, W. Rudall, C. Bourdillon, and others, appeared for the various parties. It was agreed that the 500l. legacy

1 15 Jur. 961.

Pooley v. Budd.

towards the bishopric of Jerusalem was a good charitable gift, but the validity of the 1000l. was questioned.

KNIGHT BRUCE, V. C. The gift of 1000l. is not a charity legacy : it is void. If it can be understood to mean any thing, it is to create a revolution in the dominions of an ally of her Majesty. At any rate, it is totally void.

POOLEY V. BUDD.1

April 23; May 1, 1851.

Specific Performance-Sale of Personal Chattels - Trusts, how Constituted.

Courts of Equity will not lend their assistance to enforce the specific performance of ordinary contracts for the sale and purchase of chattels, unless there be something very special in the nature of the contract. On the other hand, if a trust be created, the circumstance that the subject-matter is a personal chattel, will not prevent this court from enforcing the due execution of that trust.

Trusts may be constituted not merely by direct declaration of trust, but also by the constructive operation of the consequences flowing from the acts of parties. Thus equity will enforce the execution of a trust, not only against the trustees themselves, but against all persons who obtained possession of the property affected by the trust, provided they had notice of it.

A, who sold 500 tons of iron stacked on his wharf to B, in consideration of a bill accepted by a third party, gave an acknowledgment engaging to deliver it to the bearer, he (A) "having been paid for the same." B mortgaged the iron, and the bill having been dishonored, A refused to deliver the iron. The mortgagee proceeded in equity to make A responsible for the iron.

Held, that A had no ownership or property in the iron so stacked, and was a trustee, and therefore a demurrer for want of equity was overruled.

THIS case came before the court on demurrer to the whole bill.

The bill stated, that in the month of July, 1850, the Ystalyfera Iron Company was "possessed of many hundred tons of white and mottled pig iron, and bright and grey pig iron, including the iron particularly mentioned in the document of the 23d of July, 1850, after mentioned, and the same was, on the said 23d of July, 1850, stacked upon the ironworks at Swansea."

That, after some negotiation, the company agreed to sell, and Scale to buy, 250 tons of white and mottled pig iron, and 250 tons of bright and gray pig iron, and it was agreed, that the defendant Scale should give, as the consideration for the said iron, a bill of exchange, dated the 22d day of July, 1850, drawn by Scale on Albert Dummler, for the sum of 1343l. 15s., payable at four months after the date thereof, and accepted by Dummler.

That, on the 23d of July, 1850, the company sent to Messrs. Moss, their London agents, the following document:-"We hold stacked

Pooley v. Budd.

on our wharf at Swansea, 250 tons of white and mottled pig iron, 250 tons of bright and gray do., 500 tons, all of our usual quality, which we engage to deliver free on board at Swansea, to the bearer of this document only, on presentation indorsed by Messrs. H. Moss & Co., we having been paid for the same."

The agents indorsed this document, and exchanged it with Scale for the bill of exchange.

That Scale, being desirous of raising a sum of money "on the security of his interest under such document and the iron therein mentioned," applied to the plaintiff, who advanced him 10007. on such security, and Scale signed and gave a memorandum expressed in the following terms: "London, 27th July, 1850. Sir, I beg to deposit in your hands an order for the delivery of 500 tons of Ystalyfera pig iron, as security for an advance of 1000l. this day, of which I acknowledge the receipt. Upon default of payment of the said 1000l. upon the 27th September next, I authorize you to dispose of the 500 tons of pig, either by public or private sale, and apply the proceeds to the payment of the sum of 1000l., together with all costs and charges attending such sale."

The bill then stated, that it was agreed between the plaintiff and Scale that the iron should immediately be placed in the possession and power of the plaintiff, and that the plaintiff, accordingly, on the 30th of the said month of July, with a view of obtaining possession thereof, wrote and sent to the company the following letter:-" I am the holder of your order dated the 23d instant, and indorsed by H. Moss & Co., for 250 tons white and mottled pigs, and 250 tons gray do. Will you please deliver the same to a wharf, and inform me, per return of post, on what day it will be delivered."

On the 2d of August, 1850, the company, by their agent, retúrned the following answer:-"I have written to our shipping agent at Swansea, Mr. George Ace, to honor the order in favor of indorsees, and to deliver the iron to any one who presents it. The delivery is free on board, and there will be extra expense in putting it on a wharf, which the indorsee must of course pay. There are no public wharves for the purpose at Swansea, but if you will direct Mr. George Ace, he will make the best arrangement he can for you."

The plaintiff accordingly, on the 6th of August, 1850, forwarded the said document to Mr. Ace, and directed him to forward the iron to a wharf at Swansea, and inform the plaintiff, per return of post, on what day it would all be delivered, also the name of the wharfinger to whom it would be most conveniently delivered.

As to the bill of exchange accepted by Dummler for 13437. 15s., the bill alleged, that the company received and negotiated it, and received the value thereof, but that they refused to deliver the 500 tons of pig iron to the plaintiff, and to comply with the terms of the document of the 23d of July, 1850.

The bill then stated that when the bill became due, Dummler, in consequence of the 500 tons of iron, the consideration for such bill of exchange, not having been delivered, declined to pay it until the iron had been delivered. It charged, that the company took the bill of

Pooley v. Budd.

exchange accepted by Dummler, as the sole consideration for the purchase of the said 500 tons of pig iron.

It also alleged that the company had sold the said 500 tons of pig iron, and applied the proceeds to their own purposes, and that Scale was in insolvent circumstances.

The bill prayed a declaration, that the said 500 tons of iron mentioned in the order or document of 23d of July, 1850, had been effectually charged with the payment to the plaintiff of the sum of 1000%. and interest. It prayed an account thereof, and for an account of the sums received by the company in respect of the proceeds of the sale of the iron, and that the company might be decreed to pay over the amount in satisfaction of the sum due to the plaintiff; and that the iron unsold might be sold, and the proceeds similarly applied.

To this bill the defendants demurred for want of equity and multifariousness.

Mr. Lloyd and Mr. W. M. James, in support of the demurrer.

1. The company have never been paid for the iron; for it is stated, that the bill of Dummler has been dishonored; as against Scale they are not bound to part with the iron, except on payment, and the plaintiff stands in the same situation as Scale, and takes subject to all equities which can affect him.

2. It does not appear, from the allegations of the bill, that the contract related to any specific iron, but only to 500 tons, portion of the "many hundred tons" stated to have been possessed by the company, and "stacked" at Swansea. There was, therefore, no separation from the general bulk, and nothing specific on which a decree for specific performance can properly operate.

3. It is settled law, that this court will not entertain a bill for a specific performance of contracts for chattels, or which relate to merchandise, but it will leave the party to law, where the remedy is much more expeditious; Buxton v. Lister, 3 Atk. 383; Cud v. Rutter, 1 P. Wms. 570, and 5 Vin. Abr. 538, pl. 21. In the latter case, Lord Macclesfield held, reversing the decision of Sir Joseph Jekyl, that this court would not decree the specific performance of an agreement to transfer South Sea stock. In the present case, damages would be a sufficient compensation, and in this, it differs from the cases of the Pusey horn, Pusey v. Pusey, 1 Vernon, 273; or the parish tobacco box, Fells v. Read, 3 Ves. 70; or the instances referred to by Lord Redesdale, page 117, 4th ed., where the remedy afforded by the ordinary courts is incomplete. It differs also from Doloret v. Rothschild, 1 Sim. & St. 590, where the bill prayed the delivery of stock certificates; and from Adderley v. Dixon, 1 Sim. & St. 607, which was for a specific performance of a contract to sell debts proved in a bankruptcy. Taylor v. Neville, 1 Sim. & St. 610, (cited), it is true, related to a contract for iron, but the ground of that decision is explained by Sir John Leach. If such be the law as between the company and Scale, the assignee of his contract can stand in no better situation, for no dealing between Scale and the plaintiff can create a new equity

Pooley v. Budd.

as against the company; the assignee cannot stand in any better situation than the assignor.

4. The remedy of Scale is at law, by the common form of action for non-delivery of merchandise, according to a contract; the plaintiff might proceed at law in the name of Scale, and he alleges no difficulty in doing so. His case is like that of the assignee of a debt, who cannot sue for it in a court of equity, unless the assignor refuses to allow the assignee to use his name, or has done or intends to do some act which will prevent the assignee from recovering it at law, in the assignor's name; Hammond v. Messenger, 9 Simons, 327. There is no such allegation in the bill, as to entitle the plaintiff to proceed in equity, and in Hammond v. Messenger a demurrer to the bill was on that ground allowed.

5. The bill is multifarious, because it seeks accounts as between Scale and the plaintiff, with which the defendants have no concern.

Mr. Roupell and Mr. W. R. Ellis, in support of the bill.

1. The company have no lien whatever. They received the consideration stipulated for, — namely, the acceptance of Dummler, which he now declines to pay, because the company will not deliver the iron. Having negotiated the bill, the lien, if they had any, was thereby destroyed; Bunney v. Poyntz, 4 B. & Ad. 568; Horncastle v. Farran, 3 B. & Ald. 497. Besides, by the document of the 23d of July, 1850, the company have acknowledged that they have been paid, and have estopped themselves from averring the contrary. Having engaged by their delivery note to deliver the iron "to the bearer," they are bound to perform their undertaking, and have waived all right of stoppage in transitu; Hawes v. Watson, 2 Barn. & Cr. 540.

2. This is not a bill for specific performance. If it were, it is sufficiently alleged that the iron in question is severed from the rest, for it is stated in the bill and delivery note to be 500 tons of a parti cular quality "stacked on the company's wharf at Swansea." The nature of the suit is this. The company have sold 500 tons of iron to Scale, and have received the full consideration, and by a document, which states they have "been paid for the same," engage to deliver it "to the bearer of this document;" and afterwards, by the letter of the 2d of August, have admitted the plaintiff's title. Having thus become trustees, and bound to deliver the iron to the bearer, they, in breach of their duty as trustees, have sold it, and the object of the bill is to make them responsible for the trust property. This is a common equity, which this court will enforce. The law of the court has thus been stated:-The jurisdiction to protect by injunction the possession, and to decree the delivery up, of specific chattels, is not confined to chattels, the loss or injury of which would not be adequately compensated by damages, but extends to all cases in which the party in possession of the chattels has acquired such possession, through an alleged abuse of power on the part of one standing in a fiduciary relation to the plaintiff. Wood v. Rowcliffe, 2 Phillips, 382. So where the direct substance of an agreement "can be had in this court, it is not necessarily an answer to a bill for the performance of such an