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CONTENTS. Leading Article


Vice-CAANCELLOR Wood's Court. Notes of the Week,.


By Matthew B. BEGBIE, Barrister at Law. Recent Cases on Commercial Law

143 Pollard v. Clayton.-(Vendor and purchaser - Specific Correspondence


performance - Contract to supply goods by instal. Equity Sittings Papers and Cause Lists-Easter Term 144 ments-Laches)

342 London Gazettes.....



By G. J. P. SMITH and W. B. BRETT, Barristers at Law.

The Mayor, &c. of Norwich o. The Norfolk Railway COURT OF APPEAL IN CHANCERY.

Company.-(Railway company-Navigable river By F. FISHER, Barrister at Law,

- Indictable nuisance-Covenant to pay money on Martin v. Foster.-(Ward of Court-Husband and

failure to erect certain works Plea in excuse wife-Payment out of court of fund belonging to wife).


of performance Ilegality of covenant Non

prosecution of indictment - Covenant ultra vires of VICE-CHANCELLOR KINDERSLEY's Court.

the directors-Replications)

344 By C. MARETT, Barrister at Law.

COURT OF COMMON PLEAS. Waley's Trust.-(Composition— Forfeiture)


By W. PATERSON and W. Mills, Barristers at Law.

Towns v. Mead.-(Statute of Limitations, 21 Jac. 1,
By T. F. MORSE, Barrister at Law.

c. 16, ss. 3, 7–4 & 5 Ann. c. 16, s. 19-Absence Morison v. Morison.-(West India estates-Consignee

abroad of one of two joint contractors)...

355 appointed by the Court-LienPrior mortgagee

COURT OF EXCHEQUER. Award of compensation money for slaves-Dis

By W. M. Best, Barrister at Law. charge of consignee-Right to payment of balance Taylor v. The Crowland Gas and Coke Company.due to consignee-Petition to stay execution pend

(County court-Quasi corporation under 7 & 8 ing an appeal-Costs).

339 Vict. c. 110-Costs-15 & 16 Vict. c. 54, 8. 4)., 358


plaintiff sued for the breach of a charterparty not under

seal, purporting to be made“ between the defendant, the LONDON, APRIL 21, 1855.

owner of the ship, &c., of the one part, and the plain

tiff, as agent of the freighter, of the other part," and In our last number we drew attention to some recent containing a stipulation that “this charter being cases upon the personal liability of agents to be sued concluded on behalf of another party, it is agreed upon contracts in which both the principal and agent that all responsibility on the part of Schmalz & Co.” are named. We propose now to consider under what (the plaintiffs) “cease as soon as the cargo is shipped.” circumstances persons, who have described themselves it appeared in evidence at the trial that the plainin contracts as agents for third persons, may or may tiff was himself the only party interested as freighter; not shew themselves to be in fact the real princi- no objection was taken at the trial to the admispals, and sue as such. The distinction appears to be sibility of this evidence, but at the close of the plainbetween cases in which the plaintiff has described him- tiff's case it was objected that he was concluded self as agent for an unnamed principal, and there is by the terms of the charterparty, and fixed with the nothing to shew that the defendant contracted on the character of agent only. Patteson, J., in delivering faith of his being such agent only, and would not have judgment, said, “It is conceded, that if there had been contracted with him as principal if he had known him a third party who was the real freighter, such third to be so; and those in which the supposed principal is party might have sued, although his name was not named in the contract. In the former class of cases, disclosed in the charterparty.” (Higgins v. Senior, 8 the defendant having been unacquainted with the name M. & W. 844; Skinner v. Stocks, 4 B. & Al. 437; of the supposed principal, and not having thought it Garrett v. Handley, 4 B. & Cr. 664; Cothay v. Fennell, necessary to inquire who he was, it is impossible that 10 B. & Cr. 671). “But the question is, whether the he can have been induced to enter into the contract by plaintiff can fill both characters of agent and principal, any reliance on the character, skill, or solvency of the or rather whether he can repudiate that of agent and supposed principal; and the mere possibility that the adopt that of principal, both characters being referred defendant may have been contented to contract with to in the charterparty, but the name of the principal any person as principal, provided it was not the plain- not being therein mentioned.” And after commenting tiff, and that he may have relied on the contract as in- on Bickerton v. Burrell, (5 Mau. & S. 383); Rayner v. dicating that the plaintiff was an agent only, will not Grote, (15 M. & W.359); and Humble v. Hunter, (12 prevent the plaintiff from suing as principal; at least, Q. B. 310; 12 Jur., part 1, p. 1021 ), proceeded—“ A disthe Courts will not in such a case assume that the tinction was taken in the argument in the present case, defendant relied on the plaintiff being an agent only, by the defendant's counsel, between an executed and and would not have contracted with him as principal, an executory contract; and it was said, that whatever in the absence of other evidence to that effect. But might be the rule in the former class of cases, where the where the supposed principal is expressly named in the defendant has received the benefit of the contract, and contract, the defendant has a right to the benefit he it is probably immaterial to him whom he pays, yet may have contemplated from the character, skill, or that in the latter class the defendant cannot be held substance of the supposed principal.

answerable to B., having expressly contracted with A.; The above appears to be the rule by which the and a passage in the judgment of the Court in Rayner Court were guided in their judgment (delivered by Pat- v. Grote was much relied on, which is this If, inteson, J., after time taken to consider) in Schmalz v. deed, the contract had been wholly unperformed, and Avery, (15 Jur., part 1, p.291; 16 Q. B. 655). There the one which the plaintiff, by merely proving himself to be the real principal, was seeking to enforce, the ques- perly say the defendant cannot refuse to complete that tion might admit of some doubt. In many cases-such contract.”. as, for instance, the case of contracts, in which the skill

From the portion of the judgment just stated, and or solvency of the person who is named as the prin- judgment in Schmalz v. Avery, it will be seen that the

the passage cited therefrom by Patteson, J., in his cipal may reasonably be considered as a material ingre- | Court inclined to the opinion, that but for the acceptdient in the contract-it is clear that the agent cannot ance of part of the goods, with notice that the plaintiff then shew himself to be the real principal, and sue in was the real principal, the plaintiff could not have his own name; and it may be fairly urged that this, sued; and that the judgment was founded upon the in all executory contracts, if wholly unperformed, or if consideration that both parties at the time of the part

acceptance treated the contract as one made with the partly performed, without the knowledge of who is the plaintiff as principal, and that what then took place real principal, may be the general rule.' With this amounted to a new and substituted agreement between passage we entirely agree; but it is clear that it is the defendant and the plaintiff as principal. applicable only to cases where the supposed principal The decision, coupled with the facts of the case, in is named in the contract; if he be not named, it is Bickerton v. Burrell

, does not support the general proimpossible that the other party can have been in any it support the proposition for which the case has been

position stated in the marginal note thereto; nor does way induced to enter into the contract by any of the frequently cited, that after notice that he is the real Teasons suggested. In the present case, the names of principal, a party who has made a contract, describing the supposed freighters not being inserted, no induce- himself as an agent for a supposed principal named ment to enter into the contract, from the supposed therein, may sue on such contract as principal. The solvency of the freighters, can be surmised. Any one

plaintiff had purchased 'some ground-rents of the dewho could prove himself to have been the real freighter himself as agent of R., and paid a deposit of 1201., for

fendant by a written contract, in which he described and principal, whether solvent or not, might most un- which he took a receipt, in which the money was questionably have been sued on this charterparty. The stated to have been received from the plaintiff as agent defendant cannot have been in any way prejudiced in for R. The action was, not to enforce the contract for respect of any supposed reliance on the solvency of the the purchase of the rents, but to recover back the freighter, since the freighter is admitted to have been deposit so paid to the defendant; and it was sought to unknown to him, and he did not think it necessary to cipal in the purchase, and that the money was his, and

be shewn that the plaintiff was in fact the real prininquire who he was. It is, indeed, possible that he may not R.'s; and although a doubt was expressed by Lord have been contented to take any freighter and principal, Ellenborough, whether, where a person has described provided it was not the present plaintiff; and he may himself as agent to another, whom he names, he could have relied on the terms of the charterparty indicating afterwards shift his position, and shew himself to be the that the plaintiff was an agent only, being willing to of the want of any

notice to the defendant, before ac

real principal, his Lordship decided the case on the ground accept of any one else, be he who he might, as principal. tion, of the plaintiff's real character. And Bailey, J., After all, therefore, the question is reduced to this expressly held that the plaintiff might, under the cirwhether we are to assume that the defendant did so cumstances, by giving notice to the defendant of the rely on the character of the plaintiff as agent only, and real nature of the transaction, and tendering him an would not have contracted with him as principal if he indemnity

, against any claim by R. to the

money, have

entitled himself to sue. And the whole Court decided had known him so to be, and are to lay it down as a against the plaintiff's right to sue as principal, on the broad rule, that a person, contracting as agent for an ground of the want of any previous notice to the deunknown and unnamed principal, is precluded from fendant. This decision will be found on examination saying, 'I am myself that principal.' Doubtless his not to conflict with the principle laid down by Patsaying so d oes in some measure contradict the written teson, J., in Schmalz v. Avery. The action was not contract, especially the concluding clause, which says, tract made by the plaintiff as agent for R., but appears,

brought to enforce performance of the executory con"This charterparty being concluded on behalf of another

as observed by Alderson, B., in Rayner v. Grote, to party,' &c.; for there was no such party.

have been for money had and received, and was, in Rayner v. Grote and Bickerton v. Burrell were both fact, founded upon a new implied contract arising out cases in which the supposed principal was expressly of the circumstance that the money received by the named. In Rayner v. Grote the plaintiff had made a

defendant was the plaintiff's money; and if the de

fendant had had notice of the real circumstances, the written contract for the sale of goods to the defendant, plaintiff might, consistently with the

above principle, in which he described himself as the agent of A., and have maintained an action on such new implied conthe defendant had accepted and paid for a portion of tract. (See The Duke of Norfolk v. Worthy, 1 Camp. the goods, and evidence was given at the trial that the 338). The Court, however, thought that the money defendant at the time of such acceptance had notice that having been paid by the plaintiff to and received by the plaintiff was the real principal in the transaction, the defendant as the money of R., and the defendant and not the agent of A. Alderson, B., delivering the pot having any reason to suppose, or any means of judgment of the Court, said, “We think that it was knowing, that the money was in fact the plaintiff's, it properly left to the jury to infer from the evidence, would be unjust to the defendant, and he would be unthat the defendant, with the full knowledge of the fairly prejudiced, if he were subjected to an action at facts, had received a portion of the goods, and that all the suit of the plaintiff without any previous notice of parties then treated the contract as one made with the the real facts, so as to enable him to pay or tender the plaintiff as the principal in the transaction. ... The amount without being subjected to the costs of an jury must be taken to have found that this contract has action. And notwithstanding the doubt expressed by been in part performed, and that part performance Alderson, B., in Rayner v. Grote, whether the case was accepted by the defendant with full knowledge that the well decided on that ground, it is apprehended, that upon plaintiff was not the agent, but the real principal. If the sound and reasonable principle that the right of the so, we think the plaintiff may, after that, very pro- | party really interested to come in and sue, is limited to

cases in which the defendant will not be unfairly pre- in its origin, and before execution, was not a contract judiced thereby, the judgment of the Court was correct, with the plaintiff as principal, can by its mere execuand is in accordance with the rule laid down in Schmalz tion become a contract with him so as to entitle him to V. Avery and Rayner v. Grote. Humble v. Hunter (12 sue on such express contract. In Humble v. Hunter Q. B. 310; 12 Jur., part 1, p. 1021) is a case somewhat the contract appears to have been executed, but the analogous, in the principle on which it was decided, plaintiff had declared on the charterparty itself; and to those already commented upon. In that case A., Patteson, J., observed, “The plaintiff here must be an agent, had executed a charterparty, and described taken to have allowed her agent to contract in this. himself therein as “owner" of the ship; and in an form, (i. e. as owner), and must be bound by his act.” action on the charterparty for freight, demurrage, &c., the plaintiff, who was the real owner, sought to give

NOTES OF THE WEEK. evidence at the trial that she was the owner, and that A. had executed the charterparty as her agent only. The evidence was objected to, but received;

and upon last term) on Tuesday moved the Court of Queen's

Sir Fitzroy Kelly (pursuant to special appointment motion for a new trial, the Court, referring to Lucas v. De la Cour, (1 Mau. & S. 249), held that the plaintiff Fitzroy observed that he had been induced to render

Bench for the renewal of Mr. Barber's certificate. Sir must be taken to have allowed A. to enter into the his assistance in the cause solely from

a full conviction contract describing himself as owner, and that she was bound thereby. And per Lord Denman, C. J., “ You of its entire justice; and that after the most minute have a right to the benefit you contemplate from the investigation, he had satisfied himself that the previous character, credit, and substance of the party with whom difficulties had arisen from the complication of circumyou contract.”

stances and an imperfect knowledge of the actual facts. The result of the above cases appears to be, that in He then reviewed the elaborate judgment of 1850, and contracts where the plaintiff has described himself as an

contended that the new evidence completely explained agent, but has not named his supposed principal, the away and removed the grounds upon which that judgplaintiff may shew that he is the real principal, and ment was based. The recently discovered private inmay sue as such on the contract, and this whether it structions to his solicitor by Sanders (Fletcher's prinbe executed or executory; subject, perhaps, to the de- cipal confederate in the frauds) was a most remarkable fendant shewing affirmatively that he declined to deal revelation, and threw a flood of light upon points of with the plaintiff except as an agent only, and would vital importance to the applicant. A further statenot have dealt with him as principal: and that in ment of Mrs. Dorey had also been discovered; and both such cases parol evidence, that the party describing of these narratives, especially that of Sanders, fully himself as agent is the real principal, is not

inadmissible confirmed the statements which years before had been on the ground that it contradicts the written contract; made by Mr. Barber, when he could have had no for inasmuch as the defendant contracted with an un

conception that such a means of testing his veracity named principal, he contracted with that principal

could ever be supplied. “I have,” said Sir Fitzroy whoever he might eventually prove to be; and the Kelly, “ thoroughly analysed and sifted the volumievidence is not admitted to discharge the plaintiff from nous documents in this

matter, and if it can be shewn any liability he might have incurred as agent, but to that Mr. Barber has in any single instance wilfully enable him to shew who is the party really interested, peared that Fletcher had for twenty years been more

made one misstatement, I give up his case.” It apwithout

any unfair prejudice to the defendant. (See Higgins v. Senior, & M. & W. 844; and the observa- claimed dividends; in some cases helping parties to

or less actively employed in tracing owners to untions of Patteson, J., upon this point in Schmalz v: their rights; but when he could not find the true Avery). But where a person describes himself as agent declare himself to be the real principal, and sue as such; his introduction to Mr. Barber's

office, Fletcher had for a supposed principal, whom he names, he cannot owners, he and his confederates obtained the fund by

personation and forgery. In the sixteen years prior to for to allow such a course might be to the prejudice of the defendant, who may have relied on the character or

not only in numerous instances imposed upon soliciskill of the supposed principal; and would also be, in tors, proctors, brokers, and the Bank officials, but also the case of a written contract, to contradict the written upon the solicitors and counsel for the Crown. In one agreement by parol evidence. A question may arise instance, where the Bank of England had refused to whether the plaintiff can sue, where the supposed prin- pay over the money, from an avowed mistrust of the cipal in whose name he contracted is a non-existent claim, Fletcher had the audacity to file a bill in Chanand purely fictitious person : in such a case the defend- very; and the story which he fabricated, and supported ant cannot be supposed to have relied on the

character, for the Crown, that they consented to the application

by false affidavits, so effectually deceived the counsel skill, or credit of the supposed principal, and could, without

argument, and the

Bank, under an order from therefore, scarcely be prejudiced by the introduction of the Court of Chancery, paid the money—upwards of the plaintiff as the real principal; but in the case of a

40001. written contract, it is apprehended that the parol testi

At the conclusion of Sir Fitzroy Kelly's mony, that the plaintiff was the real principal, would argument, which occupied seven hours, the Court said, be open to the objection that it tends to contradict future day whether or not a rule nisi will be granted.”

“ We will read all the affidavits, and intimate on a the written instrument. It will be observed that a distinction was drawn by Alderson, B., in Rayner v. Grote, between executed and executory contracts, in AN INTELLIGENT JURY,--In an action tried at Tauncases in which the supposed principal is named in the ton last week to recover possession of some land, Mr. contract; and he was of opinion, that as in the former Justice Crowder, in directing the jury that the plainit would be immaterial to the defendant whom he paid, tiff's case had been clearly proved, spoke of Mr. Serthe supposed agent might declare himself to be the jeant Kinglake, the plaintiff's counsel, as his “ Brother principal, and sue as such on the executed contract. Kinglake.” The jury, however, had determined upon But it is apprehended that this right must be confined giving their verdict the other way, and, as a reason for to cases in which the execution of the contract has disregarding the summing up of the learned judge, one raised a new implied contract, which entitles the plain of them was heard to address a fellow-juror thustiff to sue thereon for a remuneration, in the nature of a “Didst thee hear the judge call that counsel brother? quantum meruit, for the benefit conferred; inasmuch Dost thee think it is likely he was going to say anyas it is difficult to see how an express contract, which thing against his own brother?"

RECENT CASES ON COMMERCIAL LAW. lick, (1 Jur., N.S., part 1, p. 110), which was an action 1. TINDALL 0. TAYLOR.—2. EDWARD 0. TREVELLICK. plaintiff had engaged to serve on board a British mer

by a seaman for his wages. The defence was, that the

chant ship from Liverpool to San Francisco, and that In a recent number we offered some comments upon he deserted after the passing of the stat. 7 & 8 Vict, the case of Gibson v. Sturge, and we now call attention c. 112, which makes desertion from such ships a penal to a decision of somewhat kindred character, namely, offence. The plaintiff replied, that the captain and Tindall v. Taylor, (1 Jur., N. S., part 1, p. 112). The officers flogged him with unreasonable cruelty and question involved in it refers to the right of a con- severity, although he had not been guilty of mutinous signor of goods to demand their redelivery to himself, or improper conduct, and in order to escape from such as against the owner of the ship, after they have been cruelty he deserted. This replication was held good once shipped. Upon the pleadings these facts were on demurrer, as setting forth facts which shewed that admitted:-The defendant had shipped goods on board the plaintiff had not deserted,” within the technical a vessel about to proceed from London to Port Philip, meaning of that word. The Court adopted this as in Australia, and was to pay freight in advance two a test – whether on these facts the plaintiff could months after the vessel should have set sail. After a have been found guilty of the offence of desertion? reasonable time had elapsed for the sailing of the ship, Erle, J., in answer to the argument that there ought and within a reasonable time before she sailed, he to have been such misconduct of the captain as demanded a redelivery of the goods; but before such endangered the plaintiff's life or limbs, said —« There demand the captain had signed the bills of lading, is no law which obliges a sailor to remain in the ship, making the goods deliverable to consignees at Port and submit to any treatment short of danger to his Philip, one of which bills the defendant had transmit- life.” In the course of the argument his Lordship also ted to the consignees, who, however, were his agents, said—“The contract between master and servant is for of which the shipowners had notice at the time of the the mutual performance of a series of acts; and if an demand. The action was for the freight for carrying act is done by one party which breaks his part of the the goods to Port Philip

after such demand, and the contract, it entitles the other party to consider the conCourt of Queen's Bench decided that it was recoverable tract broken, and to put an end to it." under the circumstances. They recognised the doc- A second replication stated these facts—that the plaintrine laid down in Abb. Ship. 595, 596, 7th ed., that tiff was a negro; that negroes were bought and sold as “ a merchant who has laden goods cannot insist upon slaves in divers of the United States; that the captain having them relanded, and delivered to him, without threatened to sell the plaintiff as a slave to certain paying the freight that might become due for the car- citizens of the United States; that San Francisco is riage of them, and indemnifying the master against the situated in one of them; and the plaintiff having just and consequences of any bill of lading signed by him.” In reasonable grounds for believing that the threat would answer to the argument that there could be no lien on be carried into execution, and in order to prevent it, the goods for freight not yet earned or due, the Court deserted. This replication was held to be bad, upon said, that when the goods were laden to be carried on the ground that it did not shew that the place where a voyage, there was a contract that the master should the threat of the captain to sell the plaintiff was to carry them in the ship upon that voyage for freight, take effect was one where slaves could be bought and and, like other contracts, it could not be dissolved, sold. except by the consent of both parties. It was conceded, however, that, by the usage of trade, the merchant, if he demands the goods in a reasonable time

Correspondence. before the ship sails, is entitled to have them delivered back to him on paying the freight tliat might become due for the carriage of them, and indemnifying the A COURT-HOUSE IN UPPER CANADA. master against the consequences of the bills of lading, The Court did not decide the question, whether wilful

TO THE EDITOR OF “THE JURIST." and unjustifiable delay in commencing the voyage SIR,—The following extract is taken from an account would entitle the consignor to rescind the contract, or lately sent by a correspondent of a highly respectable only entitle him to a cross action. With regard to the paper, and may, I believe, be relied upon for its accuconsignees being mere agents of the consignor, the Court racy. It will doubtless amuse some among your said, that as such agents they might have had autho- readers :rity to indorse the bill of lading to a purchaser of “ The Division or County Courts in Upper Canada the goods, who, as assignee of the bill of lading for were established some few years ago for the trial of valuable consideration, would have become proprietor civil causes in which the amounts at issue do not exceed of the goods, and entitled to demand them from the the sum of 251. They are presided over by a barrister, master. Although an action of contract could not have who is also chairman of the quarter sessions, and gebeen maintained by the indorsee, (Thompson v. Dominy, nerally termed judge, and who makes the circuit of the 14 M. & W. 403), yet he might sue the master for different townships in which the courts are held about detaining or converting them, aná the latter would be once in every two months. ... The cases are decided estopped by his declaration in the bill of lading from in a manner truly patriarchal: the judge hears the denying that he had the goods. Besides a contingent evidence, and gives his judgment accordingly; and as power of sale, the consignees, as the Court observed, this decision is guided more by justice than by the under the Factors Act, 5 & 6 Vict. c. 39, s. 1, though strict letter of the law, and the cost is very trifling, only, agents, would have had a right to pledge the the parties generally return to their homes perfectly goods, and to indorse the bill of lading to the pawnee, satisfied. who would have a remedy against the master.

“A short time ago I accompanied a young barrister, The Court saw no objection to the goods having been who was about to plead a cause before one of these carried all the distance to Port Philip after they had courts in one of the remotest parts of the county of been demanded back, saying it had not been suggested Limcoe. ... The apartment in which the court was what the master ought to have done with them if he held had been principal room in a log shanty, and had did not deliver them back when demanded, and that the been divided along one side by a strong wooden bar, to contract remained in full force,

keep the crowd at a respectful distance from the judge We may here notice the case of Edward v. Trecel-I and the bar. The judge availed himself on this

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