ants on account, in such a manner that the defendants wholly and for ever ceased to be entitled to the sum so transferred, and that the plaintiffs became entitled thereto, as held for them and at their disposal by their said agents, of all which the plaintiffs had notice. Replication. Similiter to the first plea, and joinder of issue on the second plea. latter were credited as on 28th Aug. with bill on Reid, special contract in question, upon the face of a parIrving, and Co. for 5881. 1s. 3d. The plaintiffs were creditors of Reid, Irving, and At the trial plaintiffs (appellants) tendered evidence to show that the entry made by Reid, Irving, and Co., At the trial the following facts appeared:-The to plaintiff's credit, was, in mercantile usage, conletter of defendants to the plaintiff's ordering the ditional on the payment of the bill. This evidence coffee was dated 25th May 1847, the only material was rejected, and the ruling of the judge was ultipart of which was as follows: "For the costs of said mately confirmed by the court, and judgment given order, we have opened a credit in your favour with for the defendants on the following grounds, as drawn our mutual friends Messrs. Reid, Irving, and Co., up in conformity with the practice of the Privy Council London. In drawing upon them for your invoice by Wylde, C. J.-" The unanimous judgment of the amount as customary, you will please to hand them court was for the defendants, with costs, upon the duplicate invoice and B. lading, with order to insure following grounds:-First, That this case bore no our interests, forwarding also the inclosed letter to analogy to that in which a bill is given by the pursaid friends. We trust that this mode of reimburse-chaser of goods, which is accepted on presentment, and ment will meet your approval, as it is the only one subsequently dishonoured in consequence of the failure with the exception of sending specie (and which, of the acceptor. Secondly, That the plaintiffs in this as the vessel is first touching at Table Bay from case appeared to have agreed to execute the order in this, would not offer any advantage) we could have question upon the terms proposed by the defendants adopted." The inclosed letter referred to from de- in their letter of 25th May 1847, and to accept, in fendants to Reid, Irving, and Co., was of the same satisfaction of their demand, the credit which was date, and as follows: "Having transmitted to Messrs. opened in their favour for the amount of it by the Maxwell, Wright, and Co., Rio de Janeiro, an order defendants with Reid, Irving, and Co., of London, to ship for our account on board the brig Susan, who were the agents of both parties in the transacCaptain Pryce, about 300 bags of coffee, we hereby tion. Thirdly, That such credit when so opened, was make free to open a credit in their favour for the to be regarded as so much money set apart by the costs of said coffee to the extent of 6501.; and in defendants from their other funds, and placed at drawing upon you for our account at usual sight, the immediate disposal of the plaintiffs, of which Messrs. Maxwell, Wright, and Co., will hand you the defendants could no longer avail themselves duplicate B. lading and invoice of our parcel of for the purposes of trade, and which was, therefore, coffee, and also order to cover the same by insurance as entirely at the risk of the plaintiffs as any as customary." The brig Susan soon after sailed from other money which they had in the hands of Rio to Port Elizabeth; and on return plaintiffs shipped the agents at the time of the bankruptcy. on board the 300 bags of coffee, and sent this letter of Fourthly, That the plaintiffs, having executed the 12th July 1847 to defendants: "We have to acknow-order upon the faith of such credit, were at liberty to ledge the receipt of your esteemed favour of 25th May, handing us memorandum of brig Susan's charterparty, and directing us to ship on board of said vessel 300 bags of coffee for your account, which we have done, and inclosed beg to hand you invoice and B. lading of same. Inclosed also, please find account current balancing this transaction to a point by our draft on Messrs. Reid, Irving, and Co., London, for 5887. 1s. 3d. We have written said friends requesting them to provide the necessary insurance on this shipment, and have already forwarded them the shipping documents, and your letter, &c.—Maxwell, Wright, and Co." The plaintiffs on 10th July 1847, drew a bill of exchange for 5881. 18. 3d. on Reid, Irving, and Co. as follows: "At sixty days' sight, pay to second of exchange (first and third not paid), to the order of yourselves, the sum of five hundred and eighty-eight pounds, one shilling, and threepence sterling, for value in account, which place to the account of Messrs. Deare and Deitz, of Port Elizabeth, Algoa Bay, as per advice. "MAXWELL, WRIGHT, and Co. appropriate the amount of the cost of such order "Beid, Irving, and Co. London." The defendants on receipt of the coffee, wrote to the plaintiffs on the 21st Aug. 1847, acknowledging the same, and alluding to the plaintiffs' drawing on Reid, Irving, and Co. "all of which goes in order." On 28th Aug. Reid, Irving, and Co., who had some years been agents both of plaintiffs and defendants, received the bill. They marked it as accepted; but, as the bill was in their own possession, they at first did not sign it, as it was made payable to them; though afterwards, on its becoming due, they formally accepted, by signing the name of the firm across it. On 30th Oct. 1847, it was indorsed by them to Baring Brothers and Co., when the latter, on the part of the plaintiffs, demanded the bills and securities in the possession of Reid, Irving, and Co. belonging to plaintiffs. Reid, Irving, and Co. stopped payment on 17th Sept. 1847. In their books the defendants were debited as on 28th Aug. 1847, for the bill due on 30th Oct. 1847. At no time had Reid, Irving, and Co. assets sufficient to cover their liabilities for defendants on said bill. In a book of Reid, Irving, and Co. containing their account current with plaintiffs, the ticular correspondence, in which the intention of the parties was unambiguously expressed, and looking at he ostensible acts of the agents on whom the bill was drawn, in so far as they stood connected with that special contract, without deciding as to the effect which ought in ordinary transactions between principal and agent to be given to the mere debiting and crediting of bills in account before they are actually due,' considered that the evidence which the plaintiffs proposed to adduce as to the usage and opinion of the merchants of this colony was, under the circumstances of this case, irrelevant and inadmissible in point of law, and rejected it accordingly: (see Edie v. East India Company, Burr. 1216; Gabay v. Lloyd, 3 B. & C. 793; Palmer v. Blackburn, 1 Bing. 63; Seyers v. Bridge, Doug. 509; Yates v. Byrn, 6 Taunt. 446; Cross v. Eglin, 2 B. & Ad. 106; Anderson v. Pitcher, 2 B. & P. 168; Hodgson v. Davies, 2 Camp. 531.)" Against this judgment the plaintiff's now appealed. Sir F. Thesiger, Q. C. and Cowling, for appellants, contended that no payment or satisfaction had taken place in the circumstances; but that the liability was merely suspended until the maturity of the bill, and on nonpayment revived, as if no bill had ever been given: (Ex parte Blackburn, 10 Ves. 206; Taylor v. Briggs, M. & M. 28; and cases cited in the judgment of the court below.) Bramwell, Q. C. and Phipson, for respondents, relied on the forms of the entries in Reid, Irving, and Co.'s books, as importing immediate satisfaction: (Harmer v. Steel, 4 Exch. 1, and cases cited above.) Sir F. Thesiger replied. JERVIS, C.J.-The judgment of the court below ought to be reversed. The case is narrowed to the construction to be put upon the letter of the 25th May 1847. If the appellants had agreed to have accepted the credit of Reid, Irving, and Co., they would have had no case; but they never did accept it. The judges of the court below seem to have considered that, the credit being entered in the books of the mutual agents, therefore the vendors had a right to draw as against that credit; and that, by reason of the laches of the vendors for sixty days, the time of running of the bill of exchange, the plaintiffs had lost their remedy. [His Lordship then read the reasons of the court below as given above.] The court must be considered to have been mistaken in that view of the case, in treating the credit as an immediate payment, and therefore that the vendors were bound to take upon themselves the risk of their agent's insolvency. We cannot agree with the court below, that by means of the entry of this credit the acceptance of the drawees of the bill was to be taken as a payment. We consider it quite plain, looking at the correspondence, that the object was to substitute a bill of exchange for a cash payment as a mode of payment; but only to be considered so, if the bill was duly honoured at maturity, whereby the agents would have realised funds in their hands belonging to their employers, the vendors. Although Reid and Co. had entered the amount of the bill of exchange in their books, they had no right to do so as a present payment, without the concurrence of the parties to whom it belonged. They should only have done so, if honoured at maturity. The result, therefore, was to reverse the judgment of the court below, and declare that the judgment ought to have been entered for the plaintiffs, the present appellants, for the sum of 5881. Ls. 3d., and charges and interest from the 30th Oct. 1847, according to the Dutch law, with all costs of suit in the court below. No costs of the appeal. Reversed. V. C. STUART'S COURT. Friday, Feb. 24. An affidavit sworn before the British Consul at Phila writing referred to was attached to the affidavit by a ribbon, under the consular seal; but it contained on the face of it no reference to the affidavit. Held, that the affidavit was irregular, and leave to have it filed by the Clerk of Records and Writs refused. C. T. Simpson moved for leave to have an affidavit filed in the above cause, which the Clerk of Records and Writs had refused to file, on the ground of irregularity. The affidavit in question referred to a deed, of which it professed that the paper writing thereto annexed was a correct copy. The paper writing thus referred to was attached to the affidavit by a ribbon, under the seal of her Britannic Majesty's consul at Philadelphia, U. S.; but it bore on the face of it no reference to the affidavit, and no statement as to its being the writing referred to by the affidavit. The papers were also accompanied by the certificate of the consul at Philadelphia; and the objections taken by the Clerk of Records and Writs were- -first, that the certificate was not in the regular form of a jurat, inasmuch as it professed to set out the words of the affidavit, but did not set them out accurately; and, secondly, that there was nothing to connect the copy of the deed with the affidavit. C. T. Simpson urged that they were inseparably connected by the ribbon and seal, and that such inseparable annexation was identity. But His HONOUR thought otherwise. C. T. Simpson then asked that the affidavit might be filed as it was, of whatever value it might be. But The VICE-CHANCELLOR said that every exhibit to be produced in this court must be properly annexed and properly authenticated. This exhibit was not verified; it was irregular, and he could not allow it to be filed, valeat quantum. The exhibit must be properly authenticated. Application refused. JUDGES' CHAMBERS. Wednesday, March 1. (Before CROMPTON, J. MARSDEN v. Wardle. Prohibition-Title to land-Objection to jurisdiction. A. sued B. in a Co. C. on a promissory note, given as a deposit on the sale of real estate. B.'s defence was, that the consideration for the note had failed, inasmuch as A.'s abstract disclosed an imperfect title: Held, that the action involved a question of title to a hereditament within the meaning of 9 & 10 Vict. c. 95, 8. 58. The affidavit upon which the prohibition was applied for, did not aver that the objection to the jurisdiction was taken at the trial: Held, nevertheless, that the defendant was entitled to a prohibition, inasmuch as consent cannot give jurisdiction where the action involves a subject-matter not within the jurisdiction of the Co C. When the prohibition was applied for, execution had already issued, and the defendant's goods seized, but not sold: Held, that it was not too late to apply for a prohibition, since there was still something to be done. Thomas Marsden sued James Wardle, in the Staffordshire Co. C., at Leek, upon a promissory note for 50%. It appeared, at the trial, that the defendant had agreed with the plaintiff to purchase of him lands and premises, and that the promissory note in question was given by way of a deposit or part payment of the purchase-money. The plaintiff had, in pursuance of the agreement, delivered an abstract of title, which, as the defendant contended, disclosed an imperfect title. On the part of the defendant, it was contended that, the title being defective, the consideration for the promissory note had failed; but the judge overruled the objection, and gave judgment for the plaintiff. Subsequently Morgan Lloyd obtained a summons, calling upon the plaintiff to show cause why a prohibition should not issue; against which Milward now showed cause.-First, the application is too late, since execution has already issued. Prohibition will not issue after execution, unless the want of jurisdiction appears on the face of the proceedings. Secondly, it does not appear that a question of title has arisen in this case. The action is on a promissory named defendants, under the following circumnote, which is primâ facie within the jurisdiction of stances:the Co. Courts, and the case may have been decided irrespective of title. Thirdly, the defendant has acquiesced in the jurisdiction of the court, and cannot now object. The bailiff took possession of his goods, and he promised payment of the debt, costs, and additional expenses, if the plaintiff would consent to postpone the sale, which he did. Besides, the defendant's affidavit is defective, in not stating that an objection was taken to the jurisdiction of the court below. One Wm. Brassey, requiring a loan of 301., applied to the plaintiff's for it. They agreed to lend upon the promissory note of himself (as principal): Thomas Brown, Wm. Costan, and the above-named female defendant (she representing herself to the plaintiffs as Jane Lloyd, and unmarried, instead of Jane Fairhurst, and then married to the other defendant). joining the note as his sureties for the amount. This was accordingly done. Default having been made in the payment, this action was brought and tried, and a verdict found for the plaintiff. A writ of error was issued to arrest the judgment; and the question was, whether the wife, having signed the note as surety, and falsely and fraudulently represented herself as single and unmarried when, in fact, she was at the time a married woman, was her husband now liable upon that note? Hugh Hill, Q.C., for defendant, contended that he was not liable; and that there was not a sufficient cause of action disclosed by the declaration: (Cooper v. Witham, 1 Lev. 247; 1 Sid. 375; and Bac. Abr. "B. and F." letter G., S. C.; Johnson v. Pyne, 1 Lev. 169; 1 Keb. 913, 914; 1 Sid. 258; Green v. Greenbank, 2 Mar. 485; Price v. Hewitt, 8 Ex. 146, were cited and referred to.) Morgan Lloyd, contrà.-As to the first objection, the rule is that, so long as there remains anything to be done, a prohibition will issue. In Jones v. Owen, 18 L. J. 8, Q. B., a prohibition was granted even after complete execution; and, the plaint being for recovering possession of a tenement, a writ of restitution was awarded. In the cases where the application has been held too late, execution was complete, and there remained nothing to which the prohibition could attach. Re Poe, 5 B. & Ad. 681, was a rule for a prohibition to a court martial, and, as sentence had not only been executed, but the court also dissolved, the Q. B. held that the application was too late; and all the other cases where the application for a prohibition has been held too late may be explained on the same principle. Secondly, it is quite clear upon the affidavits that the real question in the Co. C. was, whether or not the consideration for the promissory note had failed, and that depended upon whether the plaintiff had a good title to the land purchased. It follows, therefore, that a question of title arose, over which the court had no jurisdiction. Thirdly, as to the third objection, the application to delay the execution is not an acquiescence in the jurisdiction; and though the words of the affidavits are ambiguous, yet it may be reasonably gathered that the objection to the jurisdiction was taken at the trial. But, supposing no objection was taken, still consent cannot give jurisdiction. Here the subject-matter of the action is not within the jurisdiction of the court, and nothing short of an agreement according to the provisions of 13 & 14 Vict. c. 61, s. 17, can give jurisJan. 31.-POLLOCK, C.B.-This is a writ of error diction where a question of title is involved. The from the Court of Passage for the borough of Livercases in which consent has been held to confer juris-pool. The declaration is against Wm. Fairhurst and diction are those in which the want of jurisdiction has arisen from some collateral fact, and not where the issue in the action is one which the court has no jurisdiction to try. Willes (Milward with him) for plaintiffs.-[ALDERSON, B.-The wife would not in this case be liable for obtaining the money by false pretences, as here the She is no money was obtained by a third person. doubt liable for wrongs done; but not for contracts made. Is this a wrong or a contract? The plaintiffs contend it is a wrong. PARKE, B. referred to Jennings v. Rundall, 8 T. R. 335, where tort was mixed up with contract in the case of an infant.] Williamson v. Addison, 2 East, 446; Bac. Abr. "Baron and Feme," H.; 2 Ken. Com. 149; Head v. Briscoe, 5 C. & P. 484; Catteral v. Kenyon, 5 Q. B. 310; Rawlings v. Bell, 1 C. B. 951, were cited. Hugh Hill, Q.C. in reply. JUDGMENT. Cur. adv. vult. Jane his wife, and states that one Thomas Brassey applied to the plaintiffs, the Loan Association, for a loan of 30%., upon the security of a promissory note, to be signed by the said Thomas Brassey, Thomas Brown, William Costan, and the defendant Jane, for payment by them to the plaintiffs of the said sum of 304; and the declaration contains an allegation that the defendant Jane signed the said promissory note as such surety, and by falsely and fraudulently representing to the plaintiff that she, the defendant Order for a prohibition granted on the following Jane, was sole and unmarried at the time of signing day. CROMPTON, J., having consulted Parke, B., said: As to the preliminary objection, the rule is that it is not too late to apply for a prohibition so long as there remains anything to be done. As to the other questions, I shall look into the affidavits. COURT OF EXCHEQUER. Wednesday, Jan. 18. THE LIVERPOOL ADELPHI LOAN ASSOCIATION v. FAIRHURST AND WIFE. the said promissory note, and that her name was then Jane Lloyd, induced the plaintiffs to lend the said sum of 30%. to the said Thomas Brassey, on the security of such promissory note, when in fact the defendant Jane was then married to the said defendant William. The pleas are, first, that the defendants are not guilty; secondly, that the defendant Jane did not falsely represent; and, thirdly, that the plaintiffs did not lend the sum of 30%. on the security Husband and wife-False and fraudulent representation of such promissory note. The plaintiffs joined issue, by the wife-Liability of the husband. and all those facts were found, and the judgment of An action will not lie against husband and wife for a the court was, that the plaintiffs do recover against false and fraudulent representation by the wife to a the defendants the said damages by the jurors aforeloan society that she was sole and unmarried at the said in form aforesaid assessed, and also 25l. 16s. 6d. time of her signing a promissory note as surety for a for costs. Then the defendants say that there is error third person, whereby the loan society were induced to on the above record, the proceedings, and the record advance a sum of money to that person. made up in this court. We have to consider whether A feme covert is incapable of binding herself by her there was any error or not. The question is, whether contract, and it is wholly void; but she is responsible an action will lie against a husband and wife for a for torts committed by her during coverture. The false and fraudulent representation by the wife to the husband and wife are liable, therefore, for frauds com- plaintiffs that she was sole and unmarried at the time mitted by the wife; but when the fraud is directly of her signing the promissory note as surety for a connected with the contract of the wife, and, in fact, third person, whereby the plaintiffs were induced to is the means of effecting it, and it is part of the same advance a sum of money to that person. We are of transaction, the wife cannot be responsible, and the opinion that the action will not lie. A feme covert husband cannot be sued for it, neither can the wife. is unquestionably incapable of binding herself by her This action was brought in the Court of Passage contract; it is altogether void; and no action will for the borough of Liverpool against the above-lie against her husband or herself for a breach of it. But she is undoubtedly responsible for all torts committed by her during coverture, and the husband must be joined with the wife as a defendant. They are liable, therefore, for frauds committed by her on any person, as they are for any other personal wrongs; but when the fraud is directly connected with the contract of the wife, and, in fact, is the means of effecting it, and is parcel of the same transaction, the wife cannot be responsible, and the husband be sued for it, neither can the wife. If this were allowed, it is obvious the wife would lose the protection which the law gives her against contracts made by her during coverture; for this is not a contract of any kind which a feme covert could make while she knew her husband to be alive; for there is no con tract which a feme covert could make, when she knew her husband to be alive, that could not be treated as a fraud; for every such contract would involve in itself a fraudulent representation of her capacity to be sued. Accordingly, it has been held in the case cited at the bar, and so much commented upon during the argument (Cooper v. Witham and Wife, 2 Lev. 247), that the wife could not be bound in such a case. It is true that Twisden, J. assigned another reason, namely, that, the wife having represented herself to be sole, and induced the plaintiff to marry her, that was a felony in her, and so no action could lie till the felony was tried; but it was said if the wife had been pardoned, by which that objection would be removed, yet it seemed an action could not lie, and the reason was that it sounded in contract. That case is also reported in 1 Sid. 375. There one of the reasons stated was that the ground of the action was the communication and contract of the wife. In the case of an infant it was held, for a similar reason, that he could not be made liable for a fraudulent representation that he was of full age, whereby the plaintiff was induced to contract with him. In Wilkinson v. Richardson, Sid. 258, and in the later report in 1 Keb. 913, it was said that, if the action should be maintained, all the pleas of infancy would be taken away; for such affirmations are substantially in every contract professed to be made by an infant. For these reasons, we are of opinion that the action is not maintainable, and therefore that the judgment ought to be reversed. The rule, therefore, -will be drawn up to reverse the judgment. Judgment reversed. COURT OF APPEAL. Friday, Feb. 24. Re BEAVAN. Counsel's fees-Stamps not requisite to counsel's A stamp is not necessary upon a brief, where counsel acknowledges by his signature the receipt of the fee marked thereon. T. C. Wright in this case stated that by an order in lunacy, dated Aug. 2, 1853, a taxation of certain costs was directed to be made. The Taxing Master, Mr. Joseph Parkes, had refused to allow certain items, consisting of fees to counsel, upon the ground that the signature of counsel, indorsed upon the briefs acknowledging the receipt of such fees, had not the penny receipt stamp affixed to them. That he had been requested to ask their Lordships whether they considered it necessary that stamps should be used i such cases. Lord Justice KNIGHT BRUCE.-I have seen the point alluded to in a periodical publication. I think, if I had been asked what I should have done, I should have answered that I should have allowed the items of fees without the stamp ; and being now asked what is to be done, I answer that I direct the items to be allowed without the stamps. Lord Justice TURNER concurred. Polt, Q.C. stated that applications had been recently made to counsel to put their initials on stamps, but they had been universally refused. REPORTS. Cases decided in the County Courts. YORKSHIRE. SHEFFIELD, January 25, 1854. Action for penalty for breach of a covenant entered into by the owners of certain allotments in a building society-Liable for full penalty though the actual injury may not amount to it. Wightman appeared for the plaintiff; and This action was brought for an alleged breach of covenant, both the plaintiff and the defendant being the owners of portions of an estate near Shirebrook, Heeley, which was purchased by the Sheffield Reform Freehold Land and Building Society. The owners of the various allotments entered into a covenant which provided, amongst other things, that none of them should build a dwelling-house upon the property worth less than 80%. 50%. The defendant is the owner of two allotments, The penalty for a breach of the covenant was fixed at and it was alleged by the plaintiff (who has five allotments on the opposite side of the road) that he had built on one of his allotments six dwellings, each of less value than 80%.; it being contended that the remainder of the estate, and the plaintiff's portion in particular, had been considerably deteriorated thereby. The present action was brought to recover the 50l. penalty, for the payment of which the defendant was said to be liable in consequence of the alleged breach of the covenant. Fretson in addressing the court for the defence, conwhether any injury had been inflicted upon the plaintiff, tended that the question was simply one of damagesand, if so, what was the extent of the damage. He urged that the penalty of 50l. was not recoverable in this instance, although the covenant had been broken, because the same penalty attached to the violation of several trifling regulations; and it had been held by the courts of law that in such cases, although by the letter of the covenant the full penalty of 501. ought to be paid, yet that it was merely to be considered in the due performance of the contract. light of a penalty inserted for the purpose of securing a The 50%. must be considered merely as a measure of the damages to be awarded. If it was proved that injury had been caused to the plaintiff by defendant, a sum not exceeding 50%. could be awarded as damages. Mr. Fretson argued this point at some length, and then proceeded to urge that no injury had been done to the plaintiff's property, and that he had therefore no right to sue defendant for damages. It was stated in the covenant that any person who was aggrieved" should sue for damages. But the plaintiff could not be considered to be aggrieved, if, as he (Mr. Fretson) contended, he had suffered no injury, and he therefore had no right to Mr. Fretson declared that plaintiff's property had not been at all deteriorated by the building of defendant's houses, and he called three witnesses-Mr. J. Harrison, Mr. Crosland, land valuer, and Mr. Taylor, builder, who bore out this statement. At the conclusion of the case for the defence, sue. His HONOUR said the real question at issue was whether the plaintiff had suffered any injury. Having heard Mr. Wightman in reply, the learned judge said that, although Mr. Fretson had argued the legal point in the case with much ability, he could not go with him in his view of it. The only question in his mind was whether the plaintiff had been aggrieved at all, and, consequently, whether he had a right to sue. This was a question which, if the parties wished it, he should be glad to submit to a jury; or, otherwise, he had no objection to view the property before he gave his decision. The covenant must be maintained if it was the most foolish agreement in the world; and the only question was whether the plaintiff had been aggrieved. which form of proceeding in the County Court provision is made by rule 28. This is a point of very considerable nicety, and various cases may be cited on each side; but upon the whole I am of opinion that the covenant in question must be treated as one for liquidated damages, and that consequently the plaintiff is entitled to judgment for 501." This, however, his Honour said was dependent upon his having been so aggrieved as to entitle him to sne. As to the latter point, his Honour said he would view the property before he gave his decision. He felt that it was a serious matter to give a decision on this question, because if it was adverse to the defendant he saw nothing to prevent twenty other actions been brought against him for similar amounts, by persons having property in the locality. The legal point upon which he had given a decision was a peculiarly proper one for appeal. After some conversation it was decided that the case should be adjourned till the following Wednesday, in order to give his Honour an opportunity of viewing the property. January 26, 1854. HORNE v. CLAYTON. Action for goods sold-Return of goods. The plaintiff, William Horne, is a stays manufacturer, living at Barnsley; and the defendant, George Clayton, is a twine dealer, in Snig-hill, Sheffield. Barrett, of Wakefield, appeared for the plaintiff, and Chambers for the defendant. The action was brought to recover 241. 2s., being the balance of an account of 261. 3s. 7d. for money advanced, and 17. 18s. 5d. for goods supplied. The plaintiff admitted the payment of 47. on account, which reduced the original demand to the sum stated-241. 28. The facts of the case are as follows:-It was alleged and defendant had some dealing together which reon behalf of the plaintiff, that in 1852 the plaintiff sulted in defendant giving plaintiff, in the month of August in that year, a bill of exchange for 207. 10s. When that bill became due, he was unable to take it up; and plaintiff to assist him, advanced him 117. 10s. Early in December, plaintiff sent goods to defendant to the amount of 10. 7s. 6d. ; and in the same month defendant gave another acceptance on account of the money advanced and goods supplied, for 261. 38.7d. ; that bill would become due in March, 1853. Plaintiff sent further goods to the defendant, and in the April following he received another acceptance for 481.; but before it became due, the goods supplied were returned by defendant to the plaintiff. Witnesses were called to prove these stateplaintiff's assignees), and he stated that he had called ments, amongst whom was Mr. B. Canter (one of on defendant, who admitted that he owed the money. The defence set up was, that the only transactions which defendant ever had with the plaintiff were in respect to goods supplied before August, 1852, and in that month he gave a bill for 201. 10s. which became dne in the following November. When that bill became due, plaintiff called at defendant's house to remind him of the circumstance. Defendant was from home, but plaintiff saw his wife, and she said that she had got all the money except 51. This 51. plaintiff lent to her, and on the following day defendant paid the money at the bank, and obtained the bill. The 51. was afterwards paid back by instalments. As to the bill of 261., which was said to have become due in March, it was stated that defendant had, at plaintiff's request, taken up a bill for that amount at the Sheffield and Hallamshire bank, having received the money from plaintiff for that purpose. The goods which were supplied to the defendant were never touched by him, but were returned unopened to the plaintiff. He never heard anything about the two bills till he was waited on by a policeman from Barnsley, who showed him a bill for 40%, which was a forgery. Plaintiff was tried for forgery at York, and was acquitted; defendant appearing as a witness against him. Plaintiff had made an assignment of his property; and defendant stated that when Mr. Canter called on him he told him the circumstances of the case, and refused to pay anything because he did not owe it. His HONOUR said he did not consider defendant to be quite free from blame and suspicion, but looking at all the facts he must give a verdict in his favour, and he therefore nonsuited the plaintiff. HORNE v. BROOMHEAD. His HONOUR then read his judgment, in the course of which he said "The ouly point to be considered is, whether the plaintiff, supposing him to be a party aggrieved, is entitled to recover as damages the whole of the sum of 50%. specified in the eighth covenant, or only a sum equivalent to the actual amount of injury which he is proved to have sustained from the defendant's conduct. In other words, is that sum named as liquidated damages to be considered as such in point of law, or merely as a penalty or penal sum named for the Action for goods sold-Defence of a bill outstanding securing of the performance of the covenants? the latter the defendant is protected by stat. 8 & 9 Will. 3, c. 11, s. 8, an execution can be issued against him only for such a sum, with costs, as the court, acting as a jury, may determine that the plaintiff's damages actually amount to-the judgment standing for 50l., as a security to be enforced hereafter, in case of any further breaches of any of the other of the covenants, and for If it is in the hands of a third party. The plaintiff in this action was the same as in the preceding case; the defendant is a cutler, living in Bailey-lane, Sheffield. The same professional gentlemen appeared as in the preceding case. This action was brought to recover 501., being part of a claim of 647. 11s. 2ď., reduced to bring the case within the jurisdiction of the court. For the plaintiff it was stated that in November, 1852, he sent goods to defendant to the value of 74l. 178. 1d In the March following he called at defendant's house, and defendant's wife paid him 107. on account, defendant's son signing his father's name to a bill for 647. 11s. 2d.; thus leaving a balance of 5s. 11d., which was afterwards paid. Plaintiff discovered that the bill had been made out on a paper with a wrong stamp, and he drew up another bill for the same amount, but dated the 11th of April, and signed defendant's name to it; having, as he alleged, afterwards mentioned the circumstance to PHOENIX v. Walker. Action for injuries to a hired horse, which arose while in charge of plaintiff's man-Defendant, being drunk at the time, and caused the accident, made answerable for the damages, notwithstanding that he was conveyed by cab proprietors' man. Pattison for the plaintiff. Chambers for the defendant. The plaintiff in this case was Mr. William Phoenix, cab proprietor, of Watery-lane, and the defendant, Mr. George Walker, butcher, Silver street. The action was goods to make a truckfull by themselves. The hamper was not delivered to plaintiff till next morning (the 27th) whon its contents were in such a state of decomposition that they were unfit for food. For the defence it was alleged on this point that there had been no unnecessary delay on the part of the Midland company. The officials at Sheffield had been frequently told by plaintiff and other fish dealers that in the day it was of no use sending them that day, but when packages of game arrived after a certain hour that next morning would do as well. In this instance defendant, who made no objection to his name being brought to recover the sum of 30/. for damages done to they had acted in accordance with these instructions, thus used. Before the bill became due plaintiff was apprehended on a charge of forgery, and on his being searched the torn-up fragments of the bill signed by defendant's son in March was found in his pocket. Broomhead went over to Barnsley and saw plaintiff's assignees, to whom he admitted that he owed the way to Kiveton park, from whence he intended to pro- the carriage of five was charged for by the Midland 641. 11s. 2d., and promised to pay it. On cross-examination, however, plaintiff admitted that he had pressed defendant to take the goods in question, and that he had admitted to defendant's wife that the price of them was very high, telling her to sell them for what she could get. For the defence, it was urged that in a legal point of view defendant was not liable for the payment of the money claimed, because the account having furiously and recklessly driven it in a dog cart the plaintiff's horse, in consequence of the defendant on the 20th of September last. It appeared that in the evening of that day the defendant wanted to go by railceed home. Finding, however, that he could not get by rails, he hired the plaintiff's cab at the railway station, for the sum of 12s., to take him to Kiveton. Finding, however, that the vehicle was too heavy, James Watson, the plaintiff's man, fetched a dog cart and a fresh horse, and they proceeded on their journey, accompanied by a cousin of Watson's, who, with defendant's permission, went with them as companion to the former. On arriving at the Wellington Inn, Darnall, the defendant All three then got out of the dog cart, when the defenbusiness to transact with Mr. Hardcastle, the landlord. and had delivered the hamper the day after it came to their hands. With respect to the barrels of fish, it appeared that five barrels had been sent from Beal, on the York, Newcastle, and Berwick Railway, but only four were delivered to the plaintiff at Sheffield, although Company. In defence, it was urged that only four barrels had been received by the Midland Company when the goods were delivered into their hands at Normanton, but they had charged for the goods according to the way-bill, in which five barrels were put Newcastle, and Berwick Company were responsible for down. In giving judgment, his Honour said the York, the loss of the barrel of fish, and the action has as regarded the goods had been settled by the payment desired the driver to stop, as he had some particular regarded this item ought to have been brought against them. The Newcastle and Berwick Company were Sheffield, and the Midland Compny in this case were the parties who undertook to convey the goods to of part of the money and the giving of a bill for the rest. This bill was not now in the possession of the plaintiff, but of Mr. Canter; and if a verdict was given for the value of the goods which formed a consideration for the and get what they wanted, and order a glass for him at only their agents. If it could be shown that the the same time. bill, the defendant would also be liable to another action, which might be brought by the holder of the bill which had been given. Supposing, however, his Honour should be of opinion that the money was due, it would be a very great hardship if the defendant were compelled to pay for the goods a sum of money which could, and the horse galloping at a tremendous rate. He Midland Company had no right to charge for five the plaintiff himself had admitted to be excessive. His HONOUR said he considered the defendant liable in law, and he must give a verdict for the plaintiff for the amount claimed, allowing, however, no costs except the advocate's fee. February 1, 1854. (Before W. WALKER, Esq.) Liability of railway company for delay in delivering goods-Though insufficiently directed when due proof by letters and invoice of the identity of the owner, by keeping them from him after that time, the company is liable for damages for carelessness and negligence. The plaintiff, Samuel Linley, is a retail tobacco dealer, in the Park He sued the Midland Railway Company for 21. 13s. 6d., for damages sustained by their neglecting to deliver a cask of "cutty" pipes sent by them for him. W. S. Turner appeared for the plaintiff, and Wm. Smith, jun., for the defendants. On the 22nd of November, a cask of pipes was sent by the defendants for the plaintiff from Glasgow, directed for "Samuel Linley, merchant, Sheffield." It was received at Sheffield on the 25th. Having received the invoice, but not the goods, on the 29th, the plaintiff sent a messenger to the defendants' agents, Hunt and Co., carriers, to make inquiry as to the pipes. It was said that the cask had been sent to a Mr. Samuel Linley, merchant, Clough works, and had been returned; but that it should be sent to the plaintiff. On the 2nd of December, the plaintiff himself applied for the pipes, and produced the invoice and some letters to prove that the goods were for him. They promised to send them the same night, but did not. He applied again next day, and was told that the cask had been sent that morning at seven o'clock. He, however, did not receive it, and on the 10th December the plaintiff refused to receive it. The cost of the goods was 17. 88. 6d., and the plaintiff estimated that he had lost, by not having the sale of them for the Sheffield fair, the sum of 17. 58. For the defence, it was stated that the delay had arisen from the wrong direction of the goods. Every effort was made to find "Samuel Linley, merchant, Sheffield," but without finding the owner; and it was supposed, from information which had been given to the defendants, that some fraud was intended to be committed upon the sender of the goods. As soon, however, as the plaintiff applied for them, and it was proved that they were intended for him, the defendants were ready to deliver them. Mr. Smith therefore submitted that the plaintiff had failed to establish that the defendants had been guilty of carelessness and negligence. Afterwards, the cask was delivered to Mr. Herrat, of Smithfield, by order of the sender; and a few days subsequently another cask was sent for the plaintiff, who, however, refused to receive it, and it now lies at the warehouse of the defendants. His HONOUR gave a verdict for the plaintiff for 21. 28., with full costs. dant told Watson and his companion to go into the house house, expecting the defendant would follow them, but Watson and his cousin went into the instead of doing so he again got into the dog cart and drove furiously away, Walker flogging as hard as he went up two steep hills, and by a miracle passed through a bar without injury, and at length drove the horse against Swallow-Nest bar, breaking the poor animal's nose and knees, and, as a witness described it, considerably injured its "hockses." The defence set up was, that the defendant was drunk, and that it was the duty of the plaintiff's man to have taken care of him. The defendant, it was alleged, never got out of the dog cart at all, but that the horse, when left by plaintiff's man, ran away. His HONOUR blamed the conduct of plaintiff's man, but thought that the defendant was responsible for his actions, and accordingly gave judgment for the plaintiff for 211. BIRD v. WHEELHOUSE. Webster for the plaintiff, and Chambers for the defendant. The plaintiff was a tobacco dealer, and the defendant the landlord of the Green Dragon, in Fargate. The action was brought to recover the sum of 10%, the value of a share of a money club held at the defendant's house. The plaintiff said he took three shares in a money club held at defendant's house, and drew out two shares whilst the club was running. At the expiration of the club he applied for his third share, but was unable to obtain it. The landlord said he was not liable, as the club was a copartnership and he had nothing to do with its management. The club owed him 100%. for shares he had paid for, and he had no doubt that as soon as the affairs were settled, the plaintiff would receive his share. His HONOUR nonsuited the plaintiff. February 25. (Before W. WALKER, Esq.) RAYWOOD V. THE MIDLAND RAILWAY COMPANY. Action for overcharge by railway in the carriage of The railway company using a line belonging to another Broomhead appeared for the plaintiff; Fretson but it was stated that only four barrels had come into BARNSLEY, February 3, 1854. Defendant in person. This action was brought by Mrs. Hannah Fearnley, of Tankersley, against John Moorhouse Fearnley, of Holbrook, near Wortley, "to recover the sum of 25%, being 50 weeks arrears of a certain legacy by way of annuity of 10s. per week bequeathed to the plaintiff by the will of John Fearnley, deceased. The said arrears being calculated from the 16th December, 1852, to the 1st of December, 1853." Defendant was executor of the above-named will of his father, and his mother (the plaintiff) was compelled to bring this action to recover the annuity so due to her by reason of which she was compelled to throw herself upon the parish for relief. In seeking redress for her hard-hearted son's perverseness, she had been put to privations which at her age excited the commiseration of people in the court. The case was entered for last court (January 5th), when the poor woman had to walk in the severe snow storm from daylight to near 2 o'clock, before which time she could not reach the court, and the case had been struck out, but the judge under the circumstances allowed it to be adjourned to this day. All these difficulties the poor woman was placed in by her son wilfully keeping from her her just demands. This was the second year she had entered an action for her annuity. The last year's was recovered by means of the County Court. On the judge asking the poor widow what expenses she asked for she declined charging defendant with any expenses. The amount was ordered to be paid forthwith, with 30s. for advocates, and 30s. for witnesses. WAITE v. HEALD. Attempt to defraud an auction sale. Smith, of Doncaster, appeared for the plaintiff. The plaintiff, Mr. Thomas Waite, auctioneer, Doncaster, held an auction sale at Staincross, near Barnsley, in March last, at Mr. Chomley's residence, who was then removing. The defendant, Robert Heald, a jobber, residing at Balne-lane, Wakefield, attended the sale and bid at several articles. A cow for 91. 2s. 6d., three harrows for 12s. 9d., and one drag for 5s.; total, 101. Os. 3d, were knocked down to the defendant, and, contrary to the conditions of sale, he managed to get these articles from the premises before he had paid for them. As goods so taken away were presumed to be paid for, he attempted now to take advantage of the conditions by alleging payment for them. At the outset of the case, however, Mr. Smith warned defendant that there were witnesses in court to prove that he had admitted that he had not paid for the goods, and if he now swore on oath what he had dared to allege verbally, namely, that he had paid for the cow and goods, he (Mr. Smith) would ask the judge to hand defendant from the civil to the criminal court for perjury. The case was gone into, and James Bolland and Thomas Swift, as witnesses, swore they had heard defendant say at Wakefield, when he was offering the cow for sale, that "she was cheap enough to him, for he had not paid for her." Upon this the defendant would not be sworn, and his defence, which was that the money was paid, completely failed, whereupon Mr. Hamer, as his attorney, threw up the case. His Honour, in giving judgment for the amount sought, severely censured the defendant for his dishonest conduct, and said that he was only deterred from committing perjury under the fear of the threatened punishment. He went from the court with the brand of dishonesty, and he would never be believed on his oath in that court. He was ordered to pay forthwith, with the highest costs the law allowed, with 15s. for advocate, and 47. 48. for witnesses. WAKEFIELD, March 4, 1854. (Before T. H. MARSHALL, Esq., Judge.) BOLLAND . BOROUGH MARKET COMPANY. A public body constructing works under the authority of an Act of Parliament, not liable for damages arising from any accident during their progress. As the company deliver up in a safe state to the contractors, they alone are liable Plaintiff is a fishmonger, residing in New-street. The present action was brought to recover 12., being the amount of compensation claimed by him of the defendants for injuries received, owing, as he alleged, to the carelessness of the company. Wainwright appeared for the plaintiff. pany. It appears that on a Saturday night in August last, plaintiff left a public-house in the Borough Market, and was crossing the street to go home, when he unfortunately fell into a cellar which had been left exposed, and broke his leg. He was subsequently attended for several weeks by Dr. Wood, and the present action was brought to recover the amount of the bill for medical attendance and loss of time. Wainwright, in opening the case, argued that the company was liable, and quoted from Ellis v. Sheffield Gas Consumers' Company in support of his position. In this case, plaintiff claimed damages from the Gas Company for injuries sustained in falling over some impediment left in the street by the Consumers' Company, who had taken up a street to lay a main, and had not sufficiently fenced off the dangerous ground. Westmorland, in reply, said that Mr. Wainwright had not quoted fairly from the case submitted. The Sheffield Gas Consumers' Company were working without the authority of an Act of Parliament; the consent only of the local authorities had been obtained; and he (Mr. Westmorland) wished to show that the court had in that instance granted its verdict on the ground that the company had employed contractors to do certain unlawful work, and were consequently liable for the ensuing results. If any company employed contractors to do any work that was unlawful, if any evil consequences ensued, the company was clearly liable. As the Borough Market Company, however, in the present instance, had full authorization from Parliament to delegate certain work to contractors, if any evil consequences ensued, the contractors alone were liable. When the Borough Market Company delivered up the ground to the contractors for the performance of the duties of the contract, the locality was quite safe and protected. If, therefore, in the progress of the work, the contractors neglected to provide for the public safety, and by such neglect a certain accident resulted, the contractors were clearly the parties who were liable. Mr. Child, surveyor to the Borough Market Company, was then called to prove that the ground was in a safe state when delivered up to the contractors; and he also stated that Messrs. Simpson and Speight were the contractors for the bricklayers' work, and Mr. John Pickles for the stone work. His HONOUR was of opinion that the case quoted by clearly the contractors, who had the ground delivered HUDDERSFIELD, March 6, 1854. Though there be a variation in the general custom of the trade between the resident merchants and those attending market on market-days, yet, as the par- the merchants and manufacturers of this town and Clough appeared on behalf of the plaintiffs; and allow those half-yards, whilst the defendants did not allow them, was contrary to common sense. The question involved was really a question of law. Mr. Clough then proposed to call further witnesses to show that the custom was not followed in the case of manufacturing merchants dealing with merchants. His HONOUR objected to hear any more witnesses on had all admitted that the allowance was made in that point, on the ground that the former witnesses one shape or other, and that both sides had agreed to proceed to the evidence as to whether the plaintiffs had allowed those-half yards by giving liberal measure. The question therefore was, had those allowances been made by the plaintiffs? It was for them to make out that they had. From the evidence of Messrs. Barber and Woofenden, it appeared that the pieces were not measured at the time the sale took place, and Woofenden was open to this observation, that there was some variation in this statements he had made that day and those made on the former occasion. On the other hand, for the defendants, evidence had been tallied in all the instances adduced with the measureadduced to show the actual measurements, which verdict for the defendants. ments of the plaintiffs; therefore he should give a Floyd then made an application for costs, and it appearing that the expenses of the whole of the witnesses amounted to 25%. odd, His HONOUR made an order that 121. 14s. should be allowed towards the costs of defendants' witnesses. The case occupied the court four hours.. REPORTS OF INSOLVENCY CASES. PROTECTION CASE. Wednesday, Jan. 25. Trader debtor-Stock and share broker. A stock and share broker is a trader This insolvent appeared to day for his first examination upon his interim order, and was opposed by Dowse, when it transpired that, although he petitioned as a non-trader he had carried on the business of a stock and share broker; and, his debts being above 300%., his petition was dismissed. PROTECTION CASE. Wednesday, Jan. 18. (Before Mr. Commissioner MURPHY.) Re EDWARD BOURNE LOVELL. A., a practising barrister, prepares periodically a series of legal reports, and a digest of cases in all the courts, paying for professional assistance to enable him regularly to complete the manuscripts. He buys paper, pays for the printing of his works upon it, and sends it to a publisher for sale upon commission, his own name not being held out to the world as engaged in the transaction: Clough stated the action was commenced for the purpose of recovering 171. 48. 6d., due from the defendants to the plaintiffs for goods sold and delivered. This was a new trial, the case having come before the Court some time ago, when the question which arose was as to whether there had been any previous custom between the parties which would affect them as to their dealings with each other. There was an attempt to show that, in previous dealings, certain allowances had been made which ought to preclude the plaintiffs from setting up any claim, and which prohibited the question of custom arising between them. The 177. odd claimed was the balance of an account which the defendants had deducted, as they said, by virtue of a custom which extended to the Huddersfield market, that custom being to deduct shorts and half-yards, and coppers on the accounts. He (Mr. C.) contended that, though the custom might extend to a certain class of sellers, who came to Huddersfield market and exposed their goods in the Cloth-hall and in shops which they only occupied on market-days, it did not extend to manufac- Held, not a trader within the meaning of the bankrupt turing merchants who had warehouses in the town, and kept them open during the six days of the week; to which latter class the plaintiffs belonged. John Brooke and Sons, the Messrs. Starkey, and others, made no such allowances. If he established a number of instances in which a contrary custom was followed, then it would be for his friend on the opposite side to rebut the evidence offered on the side of the plaintiffs. He contended that, according to law, for a custom to be binding in trade it must be "the universal and invariable usage "practised, unless there be a special contract entered into between the parties. Several witnesses having been examined to support the case laid down by Mr. Clough, His HONOUR said it appeared there was always a liberal allowance made in one shape or other; some measured strictly to the length and then deducted half a yard, and others gave liberal measure, not going to the end of a piece to within half a yard or three quarters, therefore the only question at issue was this Mr. Barber said that they had given the liberal measure; and for the defendants a witness was called who had made the actual measurements, and according to his statement they were identical with those for which the plaintiffs had charged the defendants, and the latter sold them at the same lengths within a quarter of a yard. Clough contended that such a custom as the one which the defendants appeared to act upon in buying and selling goods was absurd and irrational, and repugnant both to the laws of reason and to the laws of the land. To say that the plaintiffs were bound to laws. This insolvent, a barrister, petitioned under the Protection Act as a non-trader. Upon examination the insolvent stated that he was the author of several legal works, and the originator of the Common Law and Equity Reports, for the purpose of which he engaged barristers in the several courts to furnish notes of important cases. He paid those gentlemen, and bought the paper for the publication. He paid the printer, and employed Messrs. Benning to publish the reports upon a commission, they accounting to him for the proceeds of the sale.. Sargood submitted, upon these facts, that the insolvent was a trader. Cooke thought it monstrous to assert that the publication of reports ancillary to his profession as a barrister made the petitioner a trader, and instanced as analogous the case of a schoolmaster who bought books to supply his pupils, which act had been held to be ancillary to his real business, and therefore not constituting a trading. Sargood replied, that there was a wide distinction between a schoolmaster selling books to his pupils, who could not do without them, and a barrister who, whether for popularity or profit, chose to become the publisher of a series of reports. It was not a single dealing in a legal work connected with the branch |