1841.

BREST

v.

LEVER.

Each. of Pleas, in support of his plea, proved acts of ownership exercised by him over the locus in quo, for a period of seventeen years before the commencement of the action. The plaintiff proved, that at an earlier period, and within twenty years, the property had been conveyed in fee to a person of the name of Barrow. Neither the plaintiff nor the defendant deduced any title from Barrow. The learned Judge, in summing up, told the jury that in his opinion the acts of ownership proved by the defendant made out a primâ facie case in support of the plea, notwithstanding the evidence given by the plaintiff: and a verdict was found for the defendant.

Bompas, Serjt., having obtained a rule nisi for a new trial, on the ground of misdirection,

Crowder and Butt shewed cause at the present sittings (Feb. 11), and contended that the question was properly left to the jury, and that it was not necessary for the defendant to produce his title-deeds, but that the acts of ownership made out a sufficient primâ facie title, which was not rebutted by the mere proof of the fact that at an earlier period the estate was in another.

Bompas, Serjt., contrà.-By the plea of liberum tenementum, the defendant admits a possession in the plaintiff, but undertakes to destroy the presumption arising from such possession, by shewing a legal title in himself. This he might have done, either by proving his title by deed, or by shewing acts of ownership extending over a period of twenty years. But here he has attempted to prove a title by shewing the exercise of acts of ownership for a less period than twenty years; but the plaintiff rebuts that case, by shewing that within the twenty years the freehold was in a third party, in whom, primâ facie, it continues, unless the defendant prove a legal transfer of it to himself.

The earlier presumption must prevail until a better title is Exch. of Pleas, shewn: Doe d. Harding v. Cooke (a).

1841.

Cur. adv. vult.

BREST

The judgment of the Court was now delivered by

PARKE, B.-[Having stated the facts, his Lordship continued]:-By the plea of liberum tenementum, the defendant admits that the plaintiff is in possession, and that he himself is, primâ facie, a wrong doer; but he undertakes to shew a title in himself, which shall do away with the presumption arising from the plaintiff's possession. This he was bound to do, either by shewing title by deed, in the usual way, or by proving a possessory title for twenty years. But here the defendant has only proved acts of ownership extending over seventeen years, and has not connected them with any prior title; it amounts, therefore, to nothing more than a longer against a shorter possession—a mere priority of possession-and for a period insufficient to confer any title, except against a mere wrong doer. We think, therefore, that there was a misdirection, and that the rule for a new trial must be made absolute.

v.

LEVER.

(a) 7 Bing. 346; 5 M. & P. 181.

Rule absolute.

HAWTAYNE (Public Officer of the Western District

Banking Company) v. BOURNE.

Feb. 13.

DEBT for money lent, and on an account stated. Plea, The resident

agent, appointnunquam indebitatus. At the trial before Maule, J., at ed by the di

rectors of a mining com

pany to manage the mine, has not an implied authority from the shareholders of the company to borrow money upon their credit, in order to pay the arrears of wages due to the labourers in the mine, who have obtained warrants of distress upon the materials belonging to the mine, for the satisfaction of such arrears:-nor in any other case of necessity, however pressing.

VOL. VII.

S S

M. W.

Exch. of Pleas, the last Cornwall Assizes, the following appeared to be the

1841.

HAWTAYNE

บ.

BOURNE.

facts of the case:

The defendant, who resides at Liverpool, was the holder of 100 shares in a Company established for the working of a mine called the Trewolvas Mine, in the parish of St. Columb Major, Cornwall. The mine was managed by an agent, appointed by the directors of the Company for that purpose. In March 1839, in consequence of the shareholders not having paid up the calls regularly, the concern fell into difficulties, and the agent, from want of funds, became unable to pay the labourers; a considerable number of whom, their wages being in arrear, applied to the magistrates, and obtained warrants of distress upon the materials belonging to the mine. The agent, finding that these warrants were about to be put into execution, applied in the name of the Company, but in fact upon his own responsibility, and without the knowledge of the shareholders, to the St. Columb Branch of the Western District Banking Company, for a loan of £400 for three months, which was advanced accordingly, and placed by the Bank to the credit of the Company, and out of it the arrears of wages were discharged. To recover the balance of that sum the present action was brought. There was some evidence of a conversation between the defendant and the agent, in which the former had asked whether they could not get money from the Bank to keep the concern going: but this evidence was not left to the jury. The learned Judge, in summing up, stated to the jury, that although under ordinary circumstances an agent could not, without express authority, borrow money in the name of his principal, so as to bind him, yet if it became absolutely necessary to raise money in order to preserve the property of the principal, the law would imply an authority in the agent to do so, to the extent of that necessity: and he left it to the jury to say whether the pressure on the concern was such as to render the advance of this money a case of such necessity. The jury found for the plaintiff.

In Michaelmas Term, Erle obtained a rule nisi for a new Exch. of Pleas, trial, on the ground of misdirection.

Bompas, Serjt., and Cockburn now shewed cause.-In the first place, there was evidence in this case to go to the jury of an express authority from the defendant to the agent to borrow money for the necessities of the mine. [Alderson, B.-That was not left to the jury: the learned Judge reports, that he thought the necessity of the case created, by law, a presumed authority to borrow money.] It was material as shewing the necessity, that the defendant had himself suggested that course. But secondly, the proposition stated to the jury was correct. This money was advanced, not to a common servant or clerk, but to an agent who was entrusted by the Company with authority to carry on the entire control and management of the mine, at a distance from his employers, with whom it was impossible for him to communicate on every sudden emergency. Under such circumstances, the agent has an implied authority to raise money on the credit of the shareholders, whenever an immediate outlay of money becomes necessary for the preservation of the concern. The principle of law is, that where an agent is employed for a specific purpose, he has an implied authority to do what is essentially necessary to carry that purpose into effect. It is like the case of the master of a ship, who has an implied authority to borrow money for the necessary use of the ship, upon the credit of the owner: Robinson v. Lyall (a), Arthur v. Barton (b). In like manner, where a poor person met with an accident, and was attended by the parish surgeon, the parish officers were held liable for the amount of the surgeon's bill, by reason of the necessity of the case: Lamb v. Bunce (c). Suppose a coach were to break

1841. HAWTAYNE

v.

BOURNE.

Exch. of Pleas, down on its journey, would not the coachman have autho

1841.

HAWTAYNE

v.

BOURNE.

rity to hire another, on the credit of his employers, for the conveyance of the passengers to the end of the journey? [Parke, B.-The law provides for that which is common, not for that which is unusual; on that principle it is that the master of a ship has authority to charge his owners, because ships are ordinarily exposed to casualties. There was no evidence here that it was the usual course to borrow money for the use of the mine.] Suppose water had burst in upon the mine, and it became necessary for its preservation immediately to employ persons to clear it, would not the agent have had authority to obtain an advance of the money necessary for that purpose? [Parke, B.-Suppose the bankers would not have advanced the money without a mortgage of the mine, would the agent have had authority to contract for a mortgage?] There was no evidence of any repudiation of the act of the agent, which was done solely with a view to the benefit of the Company, and the continuance of the concern; and there are many instances in which, where money has been laid out for a party's benefit, the law will imply a promise to repay it; as in the case of the acceptance of a bill of exchange for the honour of the drawer. [Parke, B.—That is by the custom of merchants.] Which arises out of the necessity of the case. [Alderson, B.-A party who draws a bill according to the custom of merchants, knows that by that custom a party taking it up for honour has a claim upon him. He contracts on that footing.] Suppose the directors themselves had borrowed this money, would not the partners generally be responsible? Then, whatever they can do, they have invested this their agent with authority to do.

Crowder (with whom was Erle), in support of the rule, was stopped by the Court.

PARKE, B.-This is an action brought by the plaintiffs,