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CONTENTS. Leading Article

164

COURT OF QUEEN's Bench. Notes of the Week..

168 By G. J. P. Smith and W. B. BRETT, Barristers at Law. Reviews ....

169

Jennings v. Roberts.—(Bill of exchange-Notice of Gentlemen called to the Bar

171

dishonour-Knowledge of fact of dishonour by London Gazettes....

171
party giving notice)....

401 NAMES OF THE CASES REPORTED.

COURT OF COMMON Pleas.
COURT OF CHANCERY.

By W. Paterson and W. Mills, Barristers at Law.
By T. EDWARDS, Barrister at Law.

Canbam v. Barry.-(False representation vitiating In re Pearse, ex parte Littledale.—(Bankruptcy

contractPleading-Adding terms to a written Equitable mortgagee-Order and disposition-Di

contract)

... 402 rector of a company mortgaging his shares, but remaining the nominal owner-Equity-Public

COURT OF EXCHEQUER. policy)

385

By W. M. Best, Barrister at Law.
VICE-CHANCELLOR STUART'S COURT.

Wilkinson v. Sharland.-(15 & 16 Vict. c. 76, 88. 143,
By T. F. MORSE, Barrister at Law.

222, and Sched. (B.)- Amendment_Error--SugGore v. Bowser.-(Execution creditor- Judgment not

gestion)..

405 registered–18: 2 Vict. c. 110-Equitable interest

CROWX CASES RESERVED. in a term, sale ofLien in equity on the proceeds) 392

By G. FRANCIS, Barrister at Law.
Vice-CHANCELLOR Wood's COURT.
By MATTHEW B. BEGBIE, Barrister at Law.

Reg. v. Frost.-(Amendment of indictment-14 &. 15
Vict. c. 100- Prosecutor's name)..

406 Scott v. Bentley.- (Conflict of laws-Lunatic 80 found in Seotland-Right to sue in England)..

Evi. 394

Reg. v. Foster.-(Uttering counterfeit coin
dence)

407 ExchEQUER CHAMBER.

Reg. o. Perry.- (Concealment of birth-- Disposing of By G. J. P. SMITH, Barrister at Law.

the body-What sufficient -9 Geo. 4, c. 31, s. 14) 408 The Mayor, &c. of Berwick-upon-Tweed o. Oswald.(Municipal corporation - Treasurer --Sureties

PREROGATIVE COURT. Continuance in office~Future election-5 & 6

By J. P. Dease, D.C.L. Will. 4, c. 76, s. 58-6 & 7 Vict. c. 89, s. 6)... 395 Shaw v. Neville.-(Will-Execution)

408

THE JURIST.

a note to the above passage he says,

“ We are care

fully to distinguish those cases where the suit is brought LONDON, MAY 5, 1855.

by the principal from those where the suit is brought

by a third person, claiming the property against the The doctrine that an agent cannot be permitted to agent. The rights of the latter to maintain the suit set up the jus tertii against his principal, or to dispute

are not affected by anything that has passed between his title, is to be found frequently repeated in the text- the principal and agent. If such third person has a books and in numerous decided cases; but in none of good title to the goods, he may recover them, notthem is the principle on which the rule is founded withstanding the bailment. (See Ogle v. Atkinson, clearly defined, so as to afford a distinct guide to the 5 Taunt. 759; Wilson v. Anderton, i B. & Ad. 450; limits within which its practical application must be and Story on Bailments, s. 102). There is a dictum in confined, and much confusion exists upon the subject. Ogle v. Atkinson, by Gibbs, C. J., which contradicts This may be in some measure accounted for by the the text, in which he refers to a point made, that the infinite variety of circumstances attending mercantile defendants (the agents) cannot refuse to deliver up the transactions, which renders it difficult to define the goods to the plaintiff, (the principal), from whom they extent to which the principle is properly applicable; received them; and then he says, “ But if the probut in some instances, at least, the rule appears to be perty is in others, I think that they (the agents) may stated too generally.

set up this defence. This dictum has since been treated Mr. Justice Story, in his work on Agency, sect. 217,

as untenable. (See Gosling v. Birnie, 7 Bing. 339; says, “ An agent is not ordinarily permitted to set up Paley on Agency, by Lloyd, 80, 81, and note, 18. 53).” the adverse title of a third person to defeat the rights

In the above passages, and again in Story on Bailments, of his principal, against his own manifest obligations ss. 450, 582, Mr. Justice Story lays down the rule to him, or to dispute his title. If, therefore, he has broadly, that, except in cases where the principal has received goods from his principal, and has agreed to obtained the goods fraudulently or tortiously from the hold them subject to his order, or to sell them for him, real owner, the agent cannot set up as a defence to an and to account for the proceeds, he will not be allowed action by his principal for the goods, that they in fact to set up the adverse title of a third person to the same belong to a third person, and have been claimed by him. goods to defeat his obligations*. An exception, how- He treats the dictum of Gibbs, C.J., as untenable, and ever, is allowed where the principal has obtained the assumes, that although the goods may have been duly goods fraudulently or tortiously from such third

claimed by a third party, who is in fact the real owner,

person. (Hardman v. Wilcock, 9 Bing. 382).” And in and to whom the agent would be liable in an action,

yet, in cases other than those above excepted, the agent * Holl v. Griffin, (10 Bing. 246); Harman v. Anderson, cannot, in an action by his principal, set up the title (2 Camp. 243); Stonard v. Dunkin, (Id. 344); Dixon v. and claim of such third party. The rule, as above Hamond, (2 B. & Al. 310); Gosling v. Birnie, (7 Bing. 339); stated, would lead to this palpable injustice, that the White v. Bartlett, (9 Bing. 378); Roberts v. Ogilby, (9 Price, 269); Nicholson v. Knowles, (5 Mad. 47); Kircan v. San. agent might, without any laches on his part, be liable, dars, (6 Ad. & El. 515); Hawes v. Watson, (2 B. & Cr. on the one hand, to an action by the real owner, if he 540); Crawshay v. Thornton, (7 Sim. 391).

refuse to deliver the goods to him; and, on the other, to an action by his principal, if he comply with the goods as the agent of another, will not preclude him real owner's demand, or refuse to deal with the goods from setting up, in answer to a claim by his principal, according to the directions of his principal; and from that the goods really belong to a third person, and have this dilemma the agent would have no means of escape; been duly demanded by him; and that to this extent, for he cannot, after notice of the real owner's claim and and in the absence of any special circumstances beyond demand, duly made by him, defend himself from such the mere fact of the agency—as that the agreement to claim by delivering the goods to the person from whom hold for the principal was made after notice of the he received them, the refusal to deliver to the owner adverse claim, or that the principal was induced by such on demand being evidence of a conversion. (Per Ten- agreement to incur some liability, or otherwise alter terden, C. J., in Wilson v. Anderton, 1 B. & Ad. 456). his position—the above dictum is sound, and is not Neither could he, if Mr. Justice Story's position be overruled by or inconsistent with any of the authorities correct, discharge himself by a delivery to the true cited by Mr. Justice Story. There is, indeed, one case owner, except where the principal obtained the goods cited by Mr. Erskine, arguendo, in Laclough v. T'owle, fraudulently or tortiously, for that position is based (3 Esp. 115), as having been decided by Gould, J., to on the assumption that the agent is estopped from the effect that a carrier, who has received goods from shewing that his principal was not entitled. Further: the plaintiff to carry, which were afterwards claimed in such a case, if the real owner claims hy title para- by a third person, with whom the carrier agreed that mount to that of the principal, the agent cannot inter- upon receiving an indemnity he would retain the goods, plead; for, as between principal and agent, the latter and would not deliver them according to the orders of is entitled to an interpleader order only where the his principal, could not be permitted to set up any adverse claimant relies on a title' derived from the question of property out of the plaintiff, and was preprincipal, and not upon a title paramount. (Crawshay cluded from shewing a property in any other person; v. Thornton, 2 My. & C. 23). An interpleader order and Lord Kenyon admitted the authority of the case will be granted only in those cases in which the party cited as law. But this decision at Nisi Prius was preseeking to compel the several claimants to interplead vious to the dictum in Ogle v. Atkinson, and was exis under no liability to either of them beyond that plained and distinguished by Littledale, J., in his judgwhich arises from the title to the property in contest, ment in Wilson v. Anderton, which strongly supports and the whole rights of the rival claimants can be de- the position laid down by Gibbs, C. J. The action termined by the litigation between them ; (Id. 19); but was by the real owner of goods against an agent, into an agent, receiving goods for or on account of his prin- whose custody they had been delivered by a third percipal, incurs a personal liability to him, and may by son; and Littledale, J., commenting on the case before his own acts have rendered himself liable to his prin- Gould, J., said, “ There the carrier, on the goods being cipal independently of the question of title—as by demanded by a third party, voluntarily identified himagreeing to hold the goods for his principal after notice self with that party, by proposing to retain them on an of the adverse claim, (Gosling v. Birnie, 7 Bing. indemnity, and offering to set up the title of that party 339), or by putting the principal in a position to in an action by the bailor. Now, a lessee cannot disincur a liability, which he did incur in consequence pute the title of his lessor at the time of the lease, of the agent agreeing to hold the goods on his behalf. but he may shew that the lessor's title has been put an (Hawes v. Watson, 2 B. & Cr. 541). In these cases, end to; and therefore, in an action of covenant by the if a third party claim under a title paramount to lessor, a plea of eviction by title paramount, or that that of the principal, no litigation between the claim- which is equivalent to it, is a good plea, and a threat to ants could ascertain their respective rights as against distrain, or bring an ejectment, by a person having good the agent; and the order to interplead, by staying any title, would be equivalent to an actual eviction.So action by the principal against the agent, might de here, if the bailor brought an action against the defendprive him of part of his legal right, without affording ant as bailee, the latter might, on the same principle, him any equivalent compensation. The Courts will shew that the plaintiff recovered the value of the goods, not, upon an application for an interpleader order, or that, on being threatened with an action by a person try the question, whether or not such circumstances, who had good title to the goods, he had delivered them giving the principal a right independently of the right to him.” to the property in the goods, exist*, but will leave Now, if shewing a valid title in a third person, and the agent to plead the title and claim of the third a delivery to him under the threat of an action, would, party to the action brought against him by his principal. as stated by Littledale, J., constitute an answer to the (Per Alderson, B., in Horton v. The Earl of Devon, action, it is difficult to see why the title of the third 4 Exch. 499).

party, and a demand by him, should not also be an It is submitted, however, that the meaning of the answer; in the former, as in the latter, the strict rule dictum of Gibbs, C. J., in Ogle v. Atkinson, that the that the agent cannot shew title in another is broken agent may set up property in others against his prin- in upon; in neither case can the agent shew a good cipal, is, not that an agent may of his own mere motion defence unless he proves that the third party has, in set up the title of a third person, without any demand fact, a valid title to the goods; and as, in order to comhaving been made by him, but that ordinarily the plete his defence, where actual delivery has not been mere fact that a party has received, or agreed to hold, made to the owner, he must shew a demand by him,

the defence does not appear to be open to the objection * Crawshay v. Thornton, (2 My. & C. 1); Dalton v. The that the agent may be seeking to defeat his principal's Midland Railway Company, (12 C. B. 462, per Jervis, C. J.) I claim in order to retain the goods for his own ben efit. The agent, unless indemnified by the claimant, would not been weighed, the property had not passed to him. reasonably desire to retain the goods in his possession The Court held that A., by the order to weigh, transfer, until the action by his principal against him is decided; and deliver, had enabled B. to resell the tallow, and the for if he fail to prove the claimant has a valid title, he defendants having sent to the plaintiff an acknowledgmust deliver up the goods, or their value, to his prin- ment that they had transferred it to his account, they cipal; and the difficulty and hardship of his position thenceforth held the tallow as his agents; the possession would be materially increased, if, notwithstanding he thereof had passed to him, and the right of A. to stop acted upon the bona fide belief that the claimant had a in transitu was gone. Here, again, the plaintiff (the good title, and that therefore he was liable to him, yet principal) was in fact the real owner, and A., whose he could not set up this liability as a defence against an title the defendants set up, had no valid claim. In this action by his principal without delivering the goods to case, too, the plaintiff had, in consequence of the agents' the claimant, and incurring the additional risk attend. (the defendants') acknowledgment, incurred a liability ing such delivery. We will now proceed to consider on his acceptance; and the Court relied also on this the cases cited by Mr. Justice Story. In Harman v. circumstance. Anderson, (2 Camp. 243), the purchaser of goods, So, in Holl v. Griffin, (10 Bing. 246), the owner of having obtained from the seller an order for their goods, upon an advance of money by the plaintiff, delivery, lodged it with the warehouseman in whose handed to him a wharfinger’s receipt for certain goods, possession the goods were, and the latter transferred together with the invoice, and at the same time directed them in his books into the name of the purchaser, and the defendant, to whose wharf the goods were then in debited him with warehouse rent. The purchaser transitu, to deliver them on their arrival to the plainafterwards became bankrupt, and his assignees claimed tiff. This the defendant promised the plaintiff to do. the goods, but the defendant delivered them back to The goods afterwards arrived; and in an action of trothe seller; and the Court held, that the transfer into ver, the sole question was, whether the property in the the purchaser's name was tantamount to a complete goods had passed to the plaintiff, so as to entitle him to delivery as between the vendor and vendee; the right sue in trover; and the Court held that it had. Here, to stop in transitu was therefore gone, and the ware- too, the principal suing was he

to be the real owner, houseman became the agent of and trustee for the pur- And it should be further observed, that in this case chaser; the plaintiffs, his assignees, were, in fact, the there was no claim by any third person at all, but the real owners of the goods, and the seller, whose title defendant was seeking of his own mere motion, withthe defendant set up, had no valid claim. So, in Sto- out any adverse claim, to defeat the right which he nard v. Dunkin, (2 Camp. 344), the defendant, a ware- had acknowledged in the plaintiff. houseman, on receiving an order from the seller of a In Kirwan v. Sandars (6 Ad. & El. 515) the defendquantity of malt to hold it on account of the plaintiff, ant had sold goods to the plaintiff as the sole purchaser, who advanced 75001. on the security of the malt, gave and received payment from him; the defendant apprised a written acknowledgment that he so held it; the seller the warehouseman in whose hands the goods were of became bankrupt, and his assignees having claimed the the sale, and ordered him to weigh the goods, which malt, the defendant refused to deliver it to the plaintiff, had been done, and the goods transferred into the name on the ground that by the custom of the malt trade the of the plaintiff in the warehouseman's books. Afterproperty in the malt was not transferred until it was wards the defendant ordered the warehouseman to remeasured. Lord Ellenborough said, “It is clear the detain the goods, on the ground that one M. was indefendant cannot say to the plaintiff, The malt is not terested in the goods as a joint purchaser, and that M.'s yours,' after acknowledging to hold it on his account.” assignees had given the defendant notice not to part It will be observed, that in this case the seller, by with the goods. In trover against the defendant, he giving the order to hold the malt on account of the proposed to prove the above statements; but the Court plaintiff, had done all that was necessary on his part held, that the goods having been transferred in the usual to cause the due transfer of the malt to the plaintiff, way, the sale and delivery to the plaintiff was complete, and the defendant was endeavouring to set up his and that therefore the defendant had no longer any own omission to do what was necessary to enable him right to detain the goods. Patteson, J., said, “The to comply with the seller's order to transfer the malt, defendant, when he received notice from the assignees, in opposition to his written acknowledgment to the should have said, “It is too late; I have transferred the plaintiff that he had so transferred the malt, and held goods.?” This was not the case of an agent setting up it for him.

the title of a third person against his principal, but a In Hawes v. Watson, (2 B. & Cr. 540), A. sold to B. vendor seeking to detain the goods from the purchaser a quantity of tallow then lying at the defendants' wharf, with whom he dealt, after a transfer, which amounted and on the same day gave to B. a written order on the to a delivery to him. defendants to weigh, deliver, and transfer the tallow: It will be observed, too, that neither in this, nor in the tallow was not subsequently weighed, but B. re- any of the four cases previously commented on, was sold it to the plaintiff, and obtained from the defend the defendant (the agent) liable to be sued for the ants, and handed to the plaintiff, a written acknowledg- goods by the third party, whose title he set up. Gosment that they had transferred the tallow to the ling v. Birnie (7 Bing. 339) is the case more especially plaintiff's account; the plaintiff thereupon gave B. his relied upon by Mr. Justice Story as overruling the acceptance for the price of the tallow. B. stopped pay- dictum of Gibbs, C. J. In that case A. had purchased ment, and A. gave the defendants notice not to deliver timber of B., and paid part of the purchase money. the tallow to B.'s order, on the ground, that as it had | B. sent the timber to the defendant's wharf, and apprised him that it had been sold to A., who marked Richards, C. B., “ There was no privity between the the whole of it, and paid to the defendant 18l. 98. due other owners and the defendants. There was nothing from B. to the defendant for the cartage of the timber. out of which the other owners could make a claim Afterwards B. gave A. notice that unless he paid the against the defendants, whatever they might do against balance of the purchase money the next day he should the plaintiff.” And the Court held, that as the defendresell the timber; and he accordingly resold it to the ants were employed by the plaintiff alone, and as his plaintiff, and gave a written order to the defendant to agents recovered the money from the underwriters, they deliver the timber to him upon payment of 18l. 98. for received it to his use, and must account to him for it. the cartage. The defendant, upon receiving the order Neither in Dixon v. Hamond nor Roberts v. Ogilby had and the 181. 98., said to the plaintiff, “ Very well, I will the parties whose title was set up by the defendants, hold the timber for you;” and afterwards delivered to the agents, any valid claim against them; in neither the plaintiff a bill for wharfage, saying, “These are the of them was there any such privity of contract between only charges on your timber.” A. afterwards paid the the adverse claimants and the agents who received the balance of the purchase money to B. In trover by the money as would enable such claimants to maintain an plaintiff for the timber, the defendant set up as de- action against the agents for money had and received fence that the timber belonged to A., but it does not to their use; and it should be borne in mind that appear from the report that any claim or demand of there is this distinction between goods and money, as the timber had been made by A. of the defendant to the liability of an agent to third persons with Bosanquet and Parke, JJ., it is true, likened the case respect to the former, the real owner may, without to Stonard v. Dunkin and Hawes v. Watson, the cir- any privity between him and the defendant, recover in cumstances of which, on examination, will be found to trover by virtue of his property in and right to the be very different; but Lord Tenterden, C. J., and possession of the specific goods; but with respect to Park and Alderson, JI., all relied on the fact that the the latter, (unless, indeed, the money be in a bag or defendant had agreed to hold the timber for the plain- earmarked, so that the particular coin can be identitiff with full knowledge of the circumstances of the fied, in which case trover will lie), the plaintiff can previous sale to A., and without any mention of A. to recover only by reason of some contract, express or the plaintiff; and Alderson, J., decided the case en- implied by law, to hold the money to the plaintiff's tirely on this ground, saying, “The defendant has re- use; and although a privity of contract may be implied peatedly acknowledged the title of the plaintiff, with a in many cases where the defendant has in the first full knowledge of the transaction as to the contract instance improperly received money, yet, in the case with A. Under these circumstances he cannot after- of money received by an agent on account of his prinwards be allowed to dispute that title on grounds with cipal, he is accountable to that principal, and to him which he was fully acquainted when he made the ad- alone, though the principal may himself be answerable missions."

over to a third party, and there is no sufficient privity In Dixon v. Hamond (2 B. & Al. 410) the defendant, of contract in such case between the agent who received an assurance broker, effected an assurance as agent for and the party ultimately entitled to the money to two partners, A. and B., on a ship the property of A., enable the latter to sue the agent. (Stephens v. Badand charged them with the premiums. The ship was cock, 3 B. & Ad. 354; Williams v. Everett, 14 East, lost, and the underwriters paid the amount of the as- 582; Baron v. Husband, 4 B. & Ad. 611). The recent surance to the defendant as agent for A. and B., for case of Tassell v. Cooper (9 C. B. 509) was decided on whom the policy had been effected. A. died, and B. the same principle as Dixon v. Hamond and Roberts v. became bankrupt; and in an action by the assignees of Ogilby, namely, that the money having been received B., the surviving partner, for money had and received by the defendant from and for the use of the plaintiff, by the defendant to the use of A. and B., the defendant as between them the money was the plaintiff's, and he set up that he was accountable only to the executors of was liable to account to him, and to him alone. Of A., to whom the ship belonged. Abbott,C.J., said, “The White v. Bartlett (9 Bing. 378) it is sufficient to say legal title to the ship has nothing to do with this ques that it was not a case of an agent setting up the title tion.” Bayley, J., said, “Here the defendant effected of a third party, or disputing that of his principal. an assurance for both A. and B., and the underwriters Hardman v. Wilcock (9 Bing. 382) was no doubt depaid the amount to him as the agent of both partners; cided upon the ground that there the principal had then he must pay it over according to his duty as obtained the goods fraudulently; and the Court relied agent, viz. to the partnership.” And Holroyd, J., upon this as distinguishing the case from some of those said the money, though paid to the defendant, was the already alluded to, and seemed to assume that but for money of the partnership.

such fraud the title of the principal could not have been In Roberts v. Ogilby (9 Price, 269) the defendants questioned; but it was not necessary to consider or had, as agents for the plaintiff, and by his directions, decide that point, nor was it much ued. insured, on his account only, a vessel of which he was Tenant v. Elliott, (1 B. & P. 3); Farmer v. Russell, part owner, and had received the amount from the (Id. 296); Bousfield v. Wilson, (16 M. & W. 185); underwriters as his agents. Other parties interested in and Betteley v. Reed, (4 Q. B. 5,11, 17), simply decide the vessel afterwards gave them notice not to pay over that an agent, who has received money or goods for his the money so received to the plaintiff; and in an action principal, cannot set up, in answer to an action by the by the plaintiff for money had and received to his use, principal to recover such money or goods, that the the defendants set up that the plaintiff was not entitled money was paid to him, the agent, by, or the goods to sue alone, being part owner only. As observed by were received by him from, a third party, under an

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illegal contract between the latter and the principal, comes to be shewn, we wish it to be understood that it the third party himself not having taken the objection, is to be argued upon the ground, whether there be new a point on which the Court laid some stress in the deci- matter disclosed by the affidavits which ought to alter sion of these cases. In Betteley v. Reed, Lord Denman,

the opinion we before formed and expressed." C. J., in giving judgment, said, “ To allow a depositary by the Bishop of Exeter upon church rates, the Lord

In the House of Lords, during a debate commenced of goods or money, who has acknowledged the title of Chancellor and Lord Campbell, C. J., concurred in one person, to set up the title of another who makes no opinion, that under the present state of the law there claim, or has abandoned all claim, would enable the depo- is no mode by which the making of a church rate can sitary to keep for himself that to which he does not pre- be compelled. The old remedies, by way of excom

be enforced, although, when made, payment of it can tend to have any title himself.” Nicholson v. Knowles, munication and interdict, are obsolete. (5 Mad. 47); Crawshay v. Thornton, (7 Sim. 391; 2

The same noble and learned Peers have expressed My. & C. 1); Patorni v. Campbell, (12 M. & W.278); their opinions that soldiers need not be sent out of an Dalton v. The Midland Railway Company, (12 C. B. assize town during the assizes, as has lately been the 458); and Horton v. The Earl of Devon, ( 4 Exch. 497), practice. were all cases in which the only point decided was, Mr. Bright, in the House of Commons, alluded to that the agent was not entitled to compel his principal, the case of Baranelli, the murderer, and stated that a and the third party claiming the property, to interplead; medical witness was in court, having been subpænaed and it may well be that it would be a hardship on the his opinion was to the effect that the prisoner was

by the prosecution, but it having been learned that principal to compel him to interplead, and simply to insane, he was not called by the counsel for the Crown. try the question of property with the adverse claimant, He then asked the Secretary of State for the Home for that would deprive him of the benefit of any circum- Department whether it was the custom of counsel for stances, beyond the mere fact of the agency, which might the Crown to take such advantage of prisoners placed

in critical and desperate circumstances; and whether it entitle him to recover against the agent independently

was not the duty of counsel, in a case of this kind, to of the question of the title to the property in contest; adduce all the evidence, in order that a prisoner might and it was upon this principle that the above cases were have every chance for his life which the law fairly gave decided. But there is no such hardship in permitting the him? Sir George Grey declined giving any opinion agent to plead, in answer to the action by his principal, of his own on the subject, but stated that the learned the title and claim of the third party; for if any special judge (Mr. Justice Erle) who tried the prisoner did not circumstances exist which, as between the principal medical witness could have been called for the prisoner,

think that the counsel had acted improperly, that the and his agent, entitle the former to maintain his action, and that his testimony had been brought to the notice independently of the mere question of title to the pro- of the judge. This is a matter of great importance, perty in dispute, the principal may rely on these cir- and deserving of serious consideration by the Profession cumstances in reply , as an estoppel in pais to the agents with the prosecuting counsel; if he be judicious, and

as well as by the public. Some discretion must be left defence of title in and claim by the third party. It is at the same time honourable and humane, he will not submitted, therefore, that all which the cases shew is, abuse it. that an agent cannot for his own benefit, and in cases The first report of the commissioners appointed to in which he is not liable to any third party by whom a inquire into the state of the County Courts, and the claim has been made, dispute the title of his principal; course of practice therein, has been published in the nor can he do so when by his conduct, with a full form of a large blue book. We shall shortly consider knowledge of the adverse claim, or by wilfully inducing

its suggestions. the principal to alter his position, he has estopped him- (April 28) decided, that although by the stat. 57

In Lewis v. Bright the Court of Queen's Bench self from disputing his liability to his principal; but Geo. 3, c. 99, any contract made in the way of trade by that where the agent is liable to a third party by whom a spiritual person holding a benefice is void, yet by the a claim has been made, the agent may, in the absence stat. 1 & 2 Vict. c. 106, 5. 31, such contract, if entered of any special circumstances beyond the mere fact of into, may be enforced against the clergyman. l'he first the agency, shew the title and claim of such third statute is to prevent him from trading, the latter to party in answer to an action by his principal.

prevent him from being dishonest.

The same Court has also decided, in Esposito v.

Bowden, (April 28), that the mere declaration of war NOTES OF THE WEEK.

did not justify the owner of a neutral vessel in not proceeding to Odessa and taking a cargo on board there

pursuant to the charterparty. Circumstances could be A RULE NISI has been granted (May 1) in Mr. Bar. supposed which would have rendered it possible for the ber's case. Lord Campbell, C. J., said,

« In the case

contract to have been legally performed. of William Henry Barber, we have looked at the affidavits, and we think there ought to be a rule to shew INRULMENT OF ANNUITIES.--We are much obliged to

It is granted upon this express understanding, two of our correspondents who have called our attenonly in respect of any new matter that can be shewn tion to the fact that the Annuity Inrolment Acts are to be disclosed by the affidavits. When the matter was repealed by the late act 17 & 18 Vict. c. 90, which a second time before the Court, and we refused the rule also repeals the Usury Laws. This should have been to shew cause, we gave a clear intimation that it was noticed in the review of Mr. Bunyon's work on Life to be considered as final. In spite of this, we, being Assurance in our last number. now told that there is new matter since discovered, MEMBER RETURNED TO SERVE IN PARLIAMENT. gave permission to the application being renewed, but Rickard Deasy, Esq., Dublin, one of her Majesty's it was upon the express condition that it should be Counsel, for the county of Cork, in the room of Edconfined to matter subsequently discovered. The leave mund Burke Roche, Esq., who has accepted the office was accepted upon that condition, and when cause l of Steward of her Majesty's Chiltern Hundreds.

cause.

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