ing to be held in pursuance of the said act, or to such
other person as they should direct, a true, fair, and par-
ticular account in writing of ull money which shall have
been by the said trustees from time to time received, by
virtue of the said act of the 8th Geo. III., and how, to
whom, and on what account such money has been paid, to-
gether with the proper receipts and vouchers for such pay-
ments; and the said trustees shall
pay all such money as
upon the balance of such account, appear to be in their
hands, or in the hands of any other person or persons, for
their use or on their account, to the said commissioners, at
a meeting to be held in pursuance of the said act, or to
such other person as they should appoint, to be applied
for the purposes of the said act; and if such trustees
should refuse or neglect, at the time and in manner as
aforesaid, to make out and deliver such accounts, or to
produce and deliver the vouchers relative thereto, or make
such payments as aforesaid, then and in any of the said
cases the said commissioners are thereby empowered to
cause an action to be brought against any one of the said
trustees, on behalf of all the said trustees, in any of his
majesty's courts of record at Westminster, in order to re-
cover such money from the said trustees, with costs of suit.
The commissioners under the last act of parliament ́
duly proceeded to execute the powers thereof, and
the plaintiff was regularly appointed their clerk and
treasurer. And the said commissioners caused such
notice to be given to the said trustees under the 8th
Geo. III. as is required by the act of 32d Geo. III. re-
quiring them to make up and deliver to the plaintiff a
true, fair, and particular account in writing, of all
money which had been from time to time received by
virtue of the said act of the 8th Geo. III., and how, to
whom, and on what account such money had been
paid, together with the proper receipts and vouchers
for such payments. That the trustees did deliver an
account, with the proper receipts and vouchers; that

1797.

EDWARDS

against WILSON.

1797.

EDWARDS against WILSON.

in that account they took credit for the said sum of 941. 17s. 7 d. expended pursuant to an order of the trustees, under the 8th Geo. III. of 16th March, 1791, in opposing in parliament the bill for selling Nuns Green. That there was no balance in the hands of the trustees at the time of passing the act of 32d Geo. III. unless the said sum of 941. 17s. 7 d. is to be considered as such. The question is, whether the plaintiff is intitled to recover.

Clark, for the defendant, was called upon by the court to argue. The questions are, first, whether the application of the money by the parties was proper ; and secondly, whether the form of action is proper. The trustees had a discretionary power under the former statute, to act as they should think most useful for the carrying the purposes of the act into execution. Now an application was made to parliament to take the trust out of their hands; and that Nuns Green should be sold to pay the expences of the act. The trustees did not act improperly in opposing the bill. No commoners opposed it; and the trustees applied the money in opposing it; and the bill was thrown out. Clearly the opposition of the bill was for the purpose of carrying the former act into execution; for if the bill had passed, the former act could not have been carried into execution. Mr. Justice Buller was of opinion for the defendant on this point. The other objection is, that this action cannot be maintained. The balance of the account, if any, can only be recovered; and here there is no balance: the treasurer is obliged to pay over the money when ordered by the trustees. The legislature did not mean to leave the question to a jury, to say whether the money was properly expended.

The Court, however, thought otherwise on both the points, and gave

Judgment for plaintiff.

PEDDER and others against WATT and another.

DECLARATION for goods sold and delivered to defendant, and on the common money counts, and account stated. The defendant pleaded the general issue. At the trial of this cause before Lord Chief Justice Kenyon and a special jury, at Guildhall, the sittings after Trinity Term, the jury found a verdict for the plaintiffs for the sum of 25847. 12s., subject to the opinion of the Court upon the following case, viz. John Pedder, and Co. the plaintiffs, are merchants, at Cork, Ireland. Messrs. Watt and Walker, the defendants, are merchants at Liverpool. Messrs. Forbes and Gregory, and their late partner Mr. Burton, were for many years merchants in London, and carried on business both during the lifetime of Mr. Burton, and afterwards under the firm of B. Burton, Forbes, and Gregory, down to the time of the failure of Forbes and Gregory, hereinafter mentioned. Messrs. Caldwell and Co. were bankers at Liverpool, with whom Messrs. Forbes and Gregory were partners in that business, only as the same was carried on at Liverpool; but Messrs. Caldwell and Co. had no concern in the house of Burton, Forbes, and Gregory, in London. Pedder and Co. corresponded, and had an account with the house of B. Burton, Forbes, and Gregory, in London, who acted as their bankers and agents, and on whom they drew bills, but had not any account with Caldwell and Co. At different times, between the month of May, 1784, and the month of January, 1792, Pedder and Co. supplied Watt and Walker with provisions to a considerable amount. In the course of these transactions, Pedder and Co. always ordered the payments to be made to their correspondents, B. Burton, Forbes, and Gregory, in London, but never, in any one instance, ordered such payment to be made to Caldwell

1796.

PEDDER

and others against WATT and another.

and Co. Watt and Walker accordingly, from time to time, remitted by bills to Burton, Forbes, and Gregory, the several sums due from them to Pedder and Co. and always advised Pedder and Co. thereof. That in two particular instances, that is, in 1787 and 1789, Watt and Walker, being indebted to plaintiffs for provisions, paid the several sums due to plaintiffs to Caldwell and Co., on account of Burton, Forbes, and Gregory, with directions that Burton, Forbes, and Gregory should credit the account of plaintiffs to the amount of such sums on a future day, as they did in the present case. That plaintiffs had notice from Burton, Forbes, and Gregory, of such credit being given by them, and acquiesced therein. In November and December 1792, Watt and Walker sent orders to Pedder and Co. to ship sundry provisions in the John, the Trelawney, the Green Castle, and the Alathea, for Jumaica, which were shipped accordingly. On the 4th February, 1793, Pedder and Co. wrote to Watt and Walker as follows, viz.: "The total amount of invoices, &c. per the sundry vessels, deducting 31. per cent. discount as usual, makes 2474l. Os. 7d. Irish, which sum, brought into English money at par, makes 22837. 14s.5d. sterling, and at your leisure you will please to remit the same to B. Burton, Forbes, and Gregory, Esqrs. London, for our account." Watt and Walker having an account with Caldwell and Co. as bankers, on the 25th February, 1793, gave the following order to them, viz. : "Place to the credit of Messrs. B. Burton, Forbes, and

Gregory, 22831. 14s. 5d., so as to make the payment "the same as a bill at one month from this date to "Messrs. Pedder and Co. of Cork.. W. and W." On the same 25th February, Caldwell and Co. wrote to Burton, Forbes, and Gregory as follows, viz. : "Messrs. "Watt and Walker desire you will credit the account "of John Pedder and Co. 2283l. 14s. 5d., as if a bill "for that sum had been sent this day at one month."

On the 27th February, B. Burton, Forbes, and Gregory, sent the following answer to Caldwell and Co.: "We will credit Messrs. John Pedder and Co. on 28th "March 22831. 14s.5d., on account of Messrs. Watt and "Walker, and advise them thereof to-morrow." On the 28th of February, Forbes and Gregory wrote to Pedder and Co. "We shall credit you on the 28th March

by order of Messrs. Watt and Walker, of Liverpool, "22837. 14s. 5d." On the 10th March, Pedder and Co. received a letter from Watt and Walker, dated Liverpool, 6th March, saying," We received your letters, the last "under date the 4th ult.; on examining your account "therein contained, we find it right, and paid on the "23d ult. to Messrs. Caldwell and Co., on your ac"count, 22831. 14s. 5d. W. and W." To which lastmentioned letter Pedder and Co. did not reply. On the 16th March, 1793, the house of B. Burton, Forbes, and Gregory, of London, stopped payment, and on the 18th a commission of bankrupt was issued against them. On the 18th March, Caldwell and Co., of Liverpool, stopped payment, and a commission of bankrupt was soon afterwards issued against them. That before, and at the time when the above-mentioned letter of the 25th February was written by Caldwell and Co. to Burton, Forbes, and Gregory, and from thence continually until the time of the several failures abovementioned, Caldwell and Co. were indebted to Watt and Walker to a much larger amount than the sum ordered to be paid by them to B. Burton, Forbes, and Gregory, and that Pedder and Co. were, at the time of those several failures, indebted to B. Burton, Forbes, and Gregory in 1717. 12s. 4d. No entry was made in the books of B. Burton, Forbes, and Gregory, to the credit of Pedder and Co. for the amount of their account with Watt and Walker, except in a book which they call a prospectus book, which contains entries as a memoranda of payments to be made by Burton, Forbes,

1796.

PEDDER and others against WATT

and another.