1811. DOE, Lessee of V. WHITTING HAM. [ 22 ] [ 23 ] the deed of gift appeared stamped with the 30s. deed stamp which was in use for deeds in the year 1811; and it was alleged that the stamp, which was in use for similar instruments in the year 1787, was obsolete and destroyed, and could not now be obtained at the stamp office. Two objections were made at the trial: first, that this instrument could not take effect, because it purported to create a freehold estate in futuro; secondly, that it could not be received in evidence, unless stamped with the particular deed stamp which was by law required at the time of the execution of the deed. Lawrence, J., however, on both points thought otherwise, and the jury, under his direction, found a verdict for the defendant. Shepherd, Serjt. in Easter term obtained a rule nisi to set aside the verdict, and enter a verdict for the plaintiff. Best, Serjt., who was in this term to have shewn cause against the rule, was stopped by the Court. Shepherd contended that this case was distinguishable from Doe ex dem. Wilkinson v. Tranmer, 2 Wils. 75. S. C. more fully Willes, 182.; that in the case cited, the estate of freehold remained in the re-lessor during his life, and upon his decease descended to his heir, who would be seised to the use of the usee. But in this case an intermediate estate of freehold was intended to intervene, namely, to the grantor's wife, for it is as if he had said, I intend that the estate shall be by some means conveyed, after my own decease, to my wife for her life; and after her decease, I covenant to stand seised of it to the use of my daughter, the defendant's wife, and her heirs; but there are no apt words by which if he had died, living his wife, the estate which he contemplates his intention to limit to his wife, could have taken effect; therefore the heir would not stand seised to her use, and then the ulterior estate to his daughter must fall to the ground, for want of any present estate of freehold to support it. HEATH, J. Here, after the death of the covenantor, there would be a resulting use. The mischief against which the law intended to provide was, that there might be no tenant to the precipe, but that would not happen in the present case. LAWRENCE, J. The case in Willes decides, that a covenant to stand seised, where the use is to arise at a future time is good: here the use will arise after the death of the wife. The objection upon the stamp was abandoned. Rule discharged. DoE, DOE, on Demise of BARBER, v. Lawrence. 1811. June 20. A right of entry cannot be re estate. THIS HIS was an action of ejectment brought to recover certain premises upon a forfeiture committed by an under-tenant served to a by the breach of covenants contained in a building lease, which stranger to the was made between John Barber and Peter Reynolds, a trustee for Barber, of the first part; James Collins, of the second part; Robert Collins, of the third part; and John King, the original lessee, of the fourth part; and recited the state of the title, which was, that Robert Collins being seised in fee, had mortgaged to Reynolds in trust for Barber, so that the legal estate was in Reynolds, and he had made a second mortgage to James Collins. All these parties were made to join in the demise to King, and the entry upon breach of covenant was reserved to the several cestui que trusts and trustee together: Reynolds alone of all the parties, had never executed the lease. Upon the trial at the Westminster sittings after Hilary term 1811, before Heath, J., a verdict passed for the plaintiff. Shepherd, Serjt. in Easter term obtained a rule nisi to set aside the verdict and have a new trial upon the ground that a right of entry could not be reserved to a stranger to the estate, and the lease shewed the legal estate to be in Reynolds. Co. Litt. 214. Best, Serjt., in this term, contended, against this rule, that the covenant of the lessee that the cestui que trust might reenter, estopped him from taking this objection, and next, that the first mortgage being paid off, the equitable estate of Barber, and legal estate of Reynolds, were at an end. But the Court, asking for the proof of the re-assignment, held that the case was too clear for argument, and made the Rule absolute. [ 24 ] VOL. IV. C JACKSON, 1811. June 20. J. F. advised the plaintiffs that he had re cousigned to cock received 4700 dollars, and pledged the bill of lading to the defendant, who received the price of the dollars at the bank of Eng JACKSON and Another v. ANDERSON and Others. TH ROVER for 3000 pieces of foreign coin called Spanish dollars. The plaintiffs were the surviving partners of Sadmitted to them ler, Jackson, and Co. merchants of London; the defendants 1969 dollars, were bankers there. In 1808, Sadler, Jackson, and Co. conLaycock. Lay- signed to Mr. J. Fielding, resident at Buenos Ayres, an assortment of linen goods for sale, which he accordingly sold, and rendered them an account of the proceeds calculated in dollars, and annexed to the following letter: "Buenos Ayres, August 28, 1809. Messrs. Sadler, Jackson, and Co. Gentlemen, Annexed I hand you an account of sales of four trunks, net proceeds 1969 Spanish dollars, which amount I shall ship per the Cheerly gun brig, Lieutenant Fullarton, who will sail direct for England in 10 or 14 days; this being a direct and safe conveyance, I deemed it more your interest, than sending them to Rio, more especially as the exchange has considerably fallen there. Signed, J. Fielding." Some time afterwards the plaintiffs received the following letter, which was brought by the ship Cheerly: "Buenos Ayres, 12th Sept. 1809. Gentlemen, I have by this conveyance sent to my friends Messrs. Laycock and Co. a bill of lading for a barrel of dollars, marked F100, in which land, where they were deposited for safe custody, on a sale of them to the bank. the letter was a defendant were although no had been sever ed for the plaintiff, yet, as the defendant had converted all the plaintifl's and ail his own, for plaintiff's share. * mon of the dol- are included 1969 for you and on your account, which sum will lars. 3. That be rendered to you by said gentlemen. Signed J. Fielding." specific dollars Addressed to Messrs. Sadler, Jackson, and Co. per Cheerly, Captain Fullarton. Upon the receipt of this letter, the plaintiffs referred to Laycock and Co., who after repeated applications made to them, returned for answer that they had transferred the bill of lading to a friend. In consequence of this answer the trover would lie plaintiffs made inquiry at the Bank of England, and there dis4. That covered that the barrel of dollars upon its arrival had been dealthough the posited at the Bank, and that the bill of lading, indorsed seveed in the same rally by J. Fielding, Laycock, and Co., and the defendants, had been transmitted to the bullion office by the defendants, of whom the Bank had purchased the dollars, and paid them the sum of 10987. 13s. 9d., being the value of 4718 dollars contained in the barrel: which sum the defendants carried to the credit of Laycock and Co., with whom they had an account as bankers. Upon this the plaintiffs demanded the 1969 dollars of the defendants, who refused to deliver them up. This cause was tried before Mansfield, dollars remain unaltered custody, yet the delivery, by the defendant, of the bill of Jading, which was the symbol of them, and the receipt of the value, was a conversion. [ *25 ] 1811. JACKSON บ. Mansfield, C. J. at the London sittings after last Hilary term, when the defendants endeavoured to shew that the consignment of this barrel of dollars to Laycock and Co. was not the same transaction with that in which the 1969 dollars were included ANDERSON. on account of the plaintiffs; but the jury being against them on that point, they relied principally on their right to retain them under the bill of lading indorsed to them by Laycock and Co.' for a valuable consideration: upon this point, the jury, under the direction of the learned Chief Justice, found a verdict for the plaintiffs for 4187. 18s. 9d., being the value of the 1969 dollars, with liberty to the defendants to move to enter a nonsuit. Accordingly in last Easter term Shepherd, Serjt. obtained a rule nisi for that purpose; against which Best, Serjt., now shewed cause, and maintained that the 1969 dollars were clearly the property of the plaintiffs, and that Laycock and Co. had no authority to dispose of them, and that having no title themselves, they could convey none by such disposal to the defendants. He said it might be admitted that in general an indorsement of a bill of lading by the owner of property, operated as an assignment of such property to the person to whom it was indorsed, and that the whole interest of the indorser would thereby pass to him: but in this case Laycock and Co. had no interest to pass, as they were the mere agents of Fielding, for the purpose of handing over a specific number of dollars before enumerated and appropriated by him to the plaintiffs. The relation of Laycock and Co. with respect to these dollars was merely that of a servant, and there could be no doubt, if a servant should dispose of his master's property, that the master might recover it back. [The Court here interrupted Best, and intimated a strong doubt, as there was nothing to distinguish the 1969 dollars from the remaining contents of the barrel, whether they could be considered as such specific property for which trover would lie.] That point was not made at the trial, but if it had been, it might be answered that however strong the objection might be, if this were an action of detinue, where more certainty is required than in this form of action, inasmuch as it lies for the recovery of the goods in specie, yet in trover, which is for the recovery of damages only to the value of the goods, the objection does not apply. [Lawrence, J. observed that the damages in trover were for the conversion of a specific thing: and also enquired how the indorsement of the [ 26 ] [ 27 ] 1811. JACKSON บ. bill of lading by the defendants, which according to Best's argument did not transfer any property to the Bank, but was inoperative and merely void, could be considered as a conversion ANDERSON. by them; and whether this action, if it could be maintained at all, did not rather lie against the Bank, in whose possession the dollars were.] Without the intervention of the defendants for their indorsement of the bill of lading, the Bank would have had no colour of title, and therefore that act is sufficient to constitute the defendants guilty of a conversion, which implies only that the party has affected to dispose of, and not that he has made an effectual transfer of the property. Such was the doctrine held in 6 East, 538., M'Combie v. Davies, and accordingly Lord Ellenborough, C. J., who in giving judgment in that case, cited and adopted the language of Lord Holt in Baldwyn v. Cole, 6 Mod. 212., is reported to have said, that the very assuming to oneself the property and right of disposing of another man's goods is a conversion. [ 28 ] Shepherd and Vaughan, Serjts. contrà. Admitting the barrel consigned to Laycock and Co. to be the same from which the 1969 were intended to be appropriated to the use of the plaintiffs, still there has not been any such appropriation of them as will entitle the plaintiffs to this form of action; and although this was not made a ground of objection at the trial; yet that is no reason for the Court's refusing to entertain it now, if upon argument it appear to be a substantial point. The objection is, that there has not been any act done in respect of the 1969 dollars claimed by the plaintiffs, to separate them from the rest so as to enable the plaintiffs to designate them as their own property; the absence of which circumstance mainly distinguishes the case from that of M'Combie v. Davies, where there was an actual transfer of the specific goods into the defendant's name, which was equivalent to an appropriation of them to the defendant: but in this case, when a demand was made by the plaintiffs of the dollars, if the defendants had desired them to point out which dollars were their property, they could not possibly have ascertained them, which shews that neither trover nor detinue will lie. But supposing them to be the distinct property of the plaintiffs, still there has been no conversion by the defendants, for they were never in possession of any part of the dollars, (the Bank having been the depositaries of them from the time of their landing until the sale by the defendants,) and a bare indorsement by them of the bill of lading, by means of which they |