REPORTS OF.. CASES ARGUED AND DETERMINED IN THE HIGH *CRAWSHAY V. THORNTON [1] 1837; January 13. [*1] 1836; April 23, 25, 27. A. deposited certain iron with B. & Co., who were wharfingers, and afterwards directed them to deliver it to C. C. applied to B. & Co, to know the particulars of the iron held by them on his account; and B. & Co. then wrote a letter to C., saying, that in compliance with his request, they annexed a note of the landing weights of the iron transferred into his name by A. and now held by them (B. & Co.) at his (C's) disposal. B. & Co. subsequently received notice from D. that the iron belonged to him, and that it had been deposited with A. as an agent for sale, and that he had without authority pledged it to C. B. & Co. then filed a bill of interpleader against C. and D.: held, on demurrer, (affirming the decision of the court below,) that after B. & Co's letter to C. they could not maintain a bill of interpleader against him. Of two defendants to a bill, one only demurred, and the demurrer having been allowed by the ViceChancellor, the plaintiff appealed. The order for setting down the appeal was served on the other defendant's solicitor, who, afterwards received a letter from the plaintiff's solicitor, asking him whether he would consent to have the appeal advanced; and that the defendant appeared upon the argument, but was not allowed to be heard: held, that he was not entitled to the costs of his appearance. THIS was a bill of interpleader. The plaintiffs were the persons who, for some years previously to the month of August, 1834, constituted, together with William Crawshay, since deceased, the firm of Richard & William Crawshay & Co., but who now constituted the firm of Richard, William, & George Crawshay & Co. The defendants were Henry Sykes Thorn- [*2] ton and Pavel Daniloff Daniloff. The bill stated, that the plaintiffs had for some years carried on business as iron merchants in London, in partnership, and that they had and have a bonded yard for foreign iron, and have also acted as wharfingers; and that in and prior to the year 1831, the persons constituting the firm of W. & T. Raikes & Co., of London, were in the habit of depositing foreign iron in the plaintiffs' yard for safe custody, the bill then stated, that, in the year 1832, certain specified parcels of iron were deposited with the plaintiffs by W. & T. Raikes & Co., and that, in the early part of the year 1833, an order in writing was brought to the plaintiffs, signed by W. & T. Raikes & Co., requiring the plaintiffs to weigh and deliver the iron; that [1] S. C. before Shadwell, V. C. 7 Sim. 391. VOL. II. 1 1836.-Crawshay v. Thornton. the order did not specify the name of the person to whom the iron was to be delivered, but that a verbal message was.left that the same "was for Mr. Thornton." The bill then stated, that if application having been made for the delivery of the iron, one of the plaintiffs wrote, in pencil, in the book of his firm which contained an account of the iron, the name "Thornton" against each of the parcels mentioned in the order. The bill further stated, that, in March, 1834, application was made to the plaintiffs by Henry Sykes Thornton, to know the particulars of the iron which the plaintiffs held on his account; and that one of the plaintiffs having thereupon ascertained from Richard Mee Raikes who then carried on the business of the firm of W. & T. Raikes & Co., that H. S. Thornton was the person in whose favor the order for delivery had been given, wrote in the book of the plaintiffs' firm, which contained the particulars of the iron, against the entry of each of the parcels, the following words and figures, viz. "8th March, 1834, transferred to H. S. Thornton;" [*3] and that the plaintiffs, at the same time, wrote or *caused to be written to Thornton a letter in the following words : 66 'George Yard, 8th March, 1834. "Sir-In compliance with your request, we annex a note of the landing weights of the various parcels of cc ND iron, transferred into your name by Messrs. W. & T. Raikes & Co., and now held by us at your disposal. "We are, &c., "H. S. Thorton, Esq." "RICHARD & W. CRAWSHAY & Co. The bill then stated that R. M. Raikes became bankrupt in October, 1834, but that neither he nor his assignees claimed any interest in the matters in question. The bill then stated, that on the 8th of October, 1834, the plaintiffs received from Messrs Lemme & Co., merchants, a letter in the following words: "Messrs. R. & W. Crawshay & Co. "1 Finsbury Circus, 1834. "Gentlemen :-You will please to take notice that the whole of the cc ND iron, lying at your wharf, is the property of Messrs. P. Daniloff and A. Lubinoff, of St. Petersburgh, and that Messrs. W. & T. Raikes & Co. were agents to them for the sale thereof, and had no power to pledge the same. Learning however that Messrs. W. & T. Raikes have pledged certain part of the above iron to Messrs. Williams, Deacon, Labouchere & Co., (a) and that you have the authority of the latter to hold such iron at their disposal, we beg to inform you that the authority is nugatory, and you are hereby [*4] required to treat it as a nullity, and not to *part with the possession of any part of such CC ND iron, but hold the whole thereof at the disposal of Messrs. P. Daniloff & A. Lubinoff, for whose house we have the honor to be, &c. JOHN LOUIS LEMME & Co." (a) H. S. Thornton was a partner in this firm. 1836.-Crawshay v. Thornton The bill then alleged, that Pavel Daniloff Daniloff, being the P. Daniloff mentioned in the letter of Lemme & Co., carries on business at St. Petersburg under the firm of P. Daniloff & A. Lubinoff, and claims the said iron, and is now resident out of the jurisdiction of the court. The bill went on to state that, in the month of December, 1834, Thornton attended at the plaintiff's counting house, and tendered to the plaintiffs their charges in respect of the iron, and demanded the delivery of it; and that, on the 22d of January, 1835, Lemme, as the agent on behalf of Daniloff, attended at the plaintiffs' counting. house, and delivered to the plaintiffs the following notice in writing :"To Messrs. R. & W. Crawshay & Co. - "Gentlemen :-As the agent for and on the behalf of Pavel Daniloff, of St. Petersburgh, in the empire of Russia, trading under the style or firm of P. Daniloff & A. Lubinoff, I hereby demand of you the delivery of the under mentioned goods, the property of the said Pavel Daniloff Daniloff, viz." [here followed the particulars of the iron] " and I hereby tender you, as such agent of the said Pavel Daniloff Daniloff, the sum of 2001., and such other sum or sums of money as may be due or owing to you in respect of the said goods; and in the event of your refusing to deliver the same to me as such agent as aforesaid, I hereby give you notice that I shall forthwith cause an action of trover to be commenced against you for the conversion of the said goods, and shall hold you responsible in respect thereof. Dated this [*5] 22d day of January, 1835. Yours, &c. "JOHN LOUIS LEMME." The bill stated that Lemme at the time of the demand, tendered and offered to pay any further amount of charges of the plaintiffs in respect of the iron, if the same should exceed 2001. The bill further stated that on the 1st of January, 1835, Thornton commenced an action of trover against the plaintiffs, to recover the iron, in which action a declaration was delivered on the 24th January, 1835, and that an action of trover against the plaintiffs for the recovery of the iron was also commenced by Daniloff, on the 23d of January, 1835. The bill alleged that the warehouse rent, charges, and expenses on the iron due to the plaintiffs, amount to the sum of 160l.-15s. 6d., and that the plaintiffs claim no interest or right in or to the iron, except in respect of their charges, their right to which is admitted by the defendants; and that in manner aforesaid the iron is claimed by Thornton and Daniloff. The bill charged that the plaintiffs do not collude with Daniloff and Thornton or either of them, but are ready to dispose of the iron as the court may direct; that Daniloff alleges and insists that he claims the iron by a title paramount to the title of Thornton, or the persons under whom Thornton claims the same. The prayer of the bill was, that Thornton and Daniloff might be decreed to interplead together, and that it might be ascertained to which of them. the iron belongs and ought to be delivered over; and that whatever order the court might make respecting the iron, proper directions [*6] |