ambler case ekins against MACKLISH August m owner of a ship let we it to the  commissioner of the navy and appoint t his factor and attorney with power to  receive the fraught and profit and to compare and transact with the  commissioner t settle the account and take a navybill for the money to m he  then sell it and endorses it as attorney for m Q whether m bind lib Reg a foe  b S c hark ms No Lord Hardwicke chancellor have take time for consideration  deliver his opinion this day I do not order this cause to stand over from any  difficulty in it but from the great consequence of the question with regard to  transact money in the public fund bill bring to be relieve against a verdict  and judgement obtain in a action of trover the case at law be as follow the  defendant reside in Scotland and be owner of a ship which in he let to the  commissioner of the navy tod be general agent for defendant in London to who  he execute a letter of attorney and thereby constitute and appoint he factor  and attorney and give he full power to receive all fraught and profit due for  such ship and to compare and transact with the commissioner of the navy c tod  transact with the commissioner of the navy and they on make up the account  make out a Navybill for pound S d to the defendant and on the back of the bill  John tod name be write as attorney for defendant tod pledge it to honeywood  and full honeywood and full afterward with the consent and authority of tod  sell it to Hanicks and he sell it to ekins who purchase it on behalf of the  royal exchange assurance company lib Reg and afterward sell it at the market  price it be after that sell again to plaintiff who be a officer in the royal  exchange assurance company tod assign it in the common form this matter rest  for four year and in that interval of time several account and affair be  transact and pass between tod and the defendant trover be bring by defendant  against the executor of tod and on the trial the evidence be as before state  ambler the question be whether tod have power to dispose of the Navybill case  be make for the judgement of the court of king bench and they on argument be  of opinion the letter of attorney do not give sufficient authority to sell and  dispose of the Navybill in the cause as it appear to this court there be  further circumstance videlicet that John tod be general factor for defendant  that there be a general account between they and that several bill of exchange  have be draw by defendant on tod and be pay evidence have be read of the  opinion of person in trade that tod may sell under such a letter of attorney  and that it be not usual to look further than on the back of the bill and see  the name it appear by a account settle that tod have give credit to defendant  for the balance of a account in which the purchase money of this Navybill be  insert and that defendant have send word it be sell without his consent two  question saint whether plaintiff have such a right at law that this court will  order it to be try again d if not whether he be entitle to relief against the  verdict and judgement obtain to saint I shall not send it again to law and  however I may have doubt if I have sit in the king bench on the argument in  point of law yet I shall not depart from the opinion of those learned judge  this lead to the second question which be proper for the determination of this  court there be a great many ingredient some preparatory and some lead those  which be preparatory and lead however they may prevail at law yet they may  mislead such as the strong word in the letter of attorney videlicet he  constitute tod to compare and transa t both those word in the Scotch law mean  to compound there be very little difference between compound with the  commissioner for prompt payment and sell at per cent discount ambler in  exchange alley which be a market over for stock though not allow so by law  other ingredient be the evidence of the custom among merchant to explain the  ambler er p letter of attorney as in case of policy of insurance which can not  be otherwise understand perhaps the judge of the court of king bench think the  construction ought to be on the letter of attorney itself without such  evidence in this court it be otherwise in salk ford v Hopkins Lord holt say  the way and manner of trade be to be take notice of see baker v pain Ves  Kruger v Wilcox post in gyles v Wilcox atk and admit evidence of the usage  among goldsmith which be not at all relative to the custom among merchant  there be evidence in the present case of merchant that they will not have  scruple buy under this letter of attorney nor as they believe will any broker  another circumstance tod be agent and factor for defendant in several other  affair several account be settle and bill of exchange draw and the money arise  by sale of this Navybill be pay out of the fund to answer those bill if  exchange tod appear by those account to have be considerable indebt to  defendant at his death on the balance of those account and that such balance  be make up by the money arise by sale of the nay bill and that without such  money the defendant will have be indebt to tod objection sell without  authority and a letter from the defendant to tod executor be read for that  purpose by which he charge that tod have sell the bill without his consent  what result from that letter be that the defendant do not impeach the  authority to sell but complain that it be do without his knowledge or consent  for that he ought to judge of the time and circumstance dly the account be  decisive in one of which tod mention the sale of the Navybill and after charge  himself ambler with the money due on it add the whole discount to the balance  due to himself the defendant do not dispute the authority to sell but on the  contrary in his own account set down the balance of tod account in which  account the money receive by sale of the Navybill be include and insert be the  first item and give credit to himself for it that amount to a affirmance of  the sale argue defendant may have bring trover against tod be of opinion he  can not for he have admit it be a item in the account and take credit for it  objection ford v Hoskins in salk but that case do not furnish any authority to  the present as it stand now before this court there be a case much more  similar of turner and another v Crookshanks hear at the roll on that may and  afterward on appeal to Lord Macclesfield on that Dec and afterward go to the  house of lord bro p c Edward Toml the plaintiff be scrivener and merchant and  deal in stock and in subscription receipt in June defendant give order to  plaintiff to buy a subscription receipt in three subscription in south sea  company and by way of indemnity deposit with he a first subscription receipt  of pound for which plaintiff give a receipt videlicet receive pound in the  first subscription to be account for at the bottom be write pound receipt No  plaintiff servant put this receipt together with other into a drawer on the  same day that defendant deposit this receipt the plaintiff have another pound  receipt of the first subscription which belong to one Mitchell sell it for  pound and take out the first receipt they meet with deliver the defendant  receipt instead of Mitchell they give credit to Mitchell for the pound about a  year afterward when affair be alter defendant discover the matter and bring  trover for his receipt against plaintiff and bill by they to be relieve and  for injunction the equity set up be the usage not to regard the number but the  receipt and that every receipt of the same ambler subscription be of equal  value that they take a receipt out of the drawer at a venture and they be  ready to deliver the other receipt to defendant on the other side it be insist  the receipt be number and therefore not like money which have no earmark  relief be deny at the roll Lord Macclesfield reverse that decree and grant a  injunction and his decree be affirm in the house of lord that be a strong case  than the present because there be not one circumstance of affirmance by  defendant the credit of the fund depend on the facility of transact they and  therefore nice and critical construction be not to be put on these power  either at law or in equity but the usage ought to be regard decree relief  against verdict and judgement at ambler er p law and the injunction to be  perpetual in that case of turner v Crookshanks though Lord Macclesfield decree  for plaintiff he give the defendant his cost but as there be the circumstance  of affirmance in the present case which be not in that lot there be no cost on  either side the decree declare that under all the circumstance of the case his  lordship be of opinion that the plaintiff be entitle to be relieve against the  verdict obtain at law by the defendant Macklish and do h order the injunction  already grant to be make perpetual and that Macklish at his own cost and  expense do enter satisfaction on the say judgement obtain at law No cost on  either side