such contract binding on the defendants, it should be proved that Jones had authority from them to enter into such a contract. M. T. 1854. ANDERSON V. CHESTER AND HOLYHEAD Secondly, that the Judge should have told the jury that the conditions printed on the back of the receipt given by Jones to the plaintiff formed part of such contract, if made; and that, inasmuch as the contract as proved varied from that stated in the pleadings, RAILWAY. his Lordship should have directed the jury to find a verdict for the defendants. J. A. Lawson and W. W. Brereton, for the defendants. As to the first exception, there were two questions for the jury: first, whether Jones entered into the contract as alleged? secondly, whether he had authority to make such a contract? The second question should have been left to the jury as well as the first: Whitehead v. Tuckett (a). In that case, Lord Ellenborough in his judgment said (p. 409), "Looking, then, at this correspondence "(which might perhaps have been more properly left to the con"sideration of a jury), we find that there was a sale of part of "those sugars recognised in one instance by the defendant, and "that subsequently there was not any positive prohibition against "future sale. Upon the whole, therefore, I think it must be inferred "that Sill & Co. had a general authority to sell, and that the sale "made by them is valid."-[BALL, J. The question there was, whether the agent's authority was general or special? but here the question is, whether, from his position, he must be inferred to have had a general authority?]-He also cited Fenn v. Harrison (b); Giles v. The Taff Vale Railway Company (c); Anderson v. Mackenzie (d). As to the second exception, the conditions on the back of the receipt formed part of the contract: Carr v. The Lancashire and Yorkshire Railway Company (e); Shaw v. The York and North Midland Railway Company (f); Austin v. The Manchester and Sheffield Railway Company (g). M. T. 1854. Common Pleas. ANDERSON CHESTER HOLYHEAD O'Driscoll, for the plaintiff, cited Scothorn v. The South Staffordshire Railway Company (a); Pickford v. The Grand Junction Railway Company (b). Fitzgibbon, on the same side, was stopped by the Court. Brereton replied. MONAHAN, C. J. We do not think that there are any grounds for allowing the exceptions in this case. We are of opinion that the law was correctly laid down at the trial, namely, that if a Railway Company opens an office for the purpose of receiving goods for hire, to be conveyed by their railway, and if the Company thinks fit to employ an agent to attend in that office and transact business with the public, it must be held that the employing such agent necessarily implies the existence of authority on his part to undertake to forward certain goods by a particular train, in the absence of notice to the contrary to the person dealing with them. Therefore, this agent, having authority to receive goods for hire, must be considered to have had authority to undertake to forward goods by a particular train. Accordingly, we are of opinion that the exception upon that ground must be overruled; and that being so, it is not necessary to consider whether the exception is formally correct. We are also of opinion that I was right in leaving it to the jury to say whether the receipts, and the conditions printed on the back of those receipts, formed part of the contract actually entered into between Jones and the plaintiff? Therefore, both the exceptions must be overruled. TORRENS, J. I am also of opinion that both the exceptions should be overruled. I think the CHIEF JUSTICE was perfectly right in the law laid down by him at the trial. As to the second objection, I think it was a proper question to be left to the jury, whether the printed conditions (b) 12 M. & W. 766. (a) 8 Exch. 341. Common Pleas. ANDERSON v. indorsed on the receipt notes formed a part of the contract? and I M. T. 1854. think the jury came to a right conclusion upon that question; for, upon inspecting the document, it is quite clear that it was never intended to apply to the conditions indorsed on it. Therefore, upon both points, the exceptions must be overruled. BALL, J. Upon the law of this case I have no doubt whatever. I think the law laid down by the CHIEF JUSTICE was perfectly right; the cases to which we have been referred in the 17 Law Times and 12 Meeson & Welsby emphatically affirm that law, and I am not aware of any cases the other way; therefore, the first objection must be overruled. As to the second exception, I have no doubt that the question was a proper one to be left to the jury. JACKSON, J. I entirely concur in my Brethren's view of the law; indeed it would be most perilous to the public if it were held otherwise. As to the second exception, it is too plain to be discussed. It is quite clear the CHIEF JUSTICE was right in leaving the question to the jury. Exceptions overruled. CHESTER AND HOLYHEAD RAILWAY. E. T. 1855. Common Pleas. A May 1. married woman cannot plead separately from her husband. Therefore, COPINGER v. QUIRK and Wife. THIS was a motion that the order made by this Court on the 21st April 1855, granting liberty to the defendant Honoria Quirk to defend this action separately, and to file a demurrer to the summons and plaint, without her husband, be set aside; and that the demurrer filed by her be set aside; and that the defence filed by James Quirk sued jointly in an action on a contract, and where husband and wife were the husband for himself alone be set aside; and that the plaintiff be the Court at liberty to mark judgment against defendants. made an order granting li berty to the wife to take On the 21st of April 1855, an order was made granting liberty to the defendant Honoria Quirk to defend separately, and to file a defence sepa- demurrer without her husband. The order was obtained on the rately, and to file a demur- grounds that the two causes of action set forth in the plaint were rer, without her husband, well brought against the husband, and therefore he could not the Court sub sequently, on demur; but one cause of action was badly brought against the the application of the plaintiff, wife, therefore it was necessary to her to demur. set aside their order and the demurrer filed Accordingly the husband filed defences for himself alone, and by the wife, the wife demurred separately.* without pre judice to the defendants pleading jointly afterwards. Copinger, in support of the motion. All the authorities show that, even though a wife have a separate defence, she must make that defence jointly with her husband.— He cited 6 Com. Dig., tit. Pleader, 2 a, 3, Watson v. Thorpe and wife (a); Parker v. Curson and wife (b); Cox v. Crapnel and wife (c); Rhemes v. Humphreys and wife (d); Moore v. Hussey and wife (e); Watkinson and wife v. Turnor (f); Gordon v. Hal (a) Cro Jac. 239. (c) Cro. Eliz. 883. (e) Hob. 93. (b) Cro. Jac. 529. * NOTE. For the facts of this case, see Copinger v. Quirk and Wife, infra, 444. Common Pleas. pen and wife (a); 2 Archbold's Practice, by Chitty, p. 1097; E. T. 1855. Exham and Sullivan, contra. In Baddington v. Freeman (f), husband and wife were sued together. The wife was under age, and it was held that the husband and wife could not join in their defences, but the wife should defend by guardian. There are two passages in Fitzherbert's Natura Brevium showing that the Court has power to grant liberty to a married woman to defend alone. The first is (vol. 1, p. 27)-"There is a dedimus potestatum given in the register to "receive an attorney for him who is vouchee, because he is received "for the default of tenant for life; and a writ directed unto the "Justices to receive an attorney for a woman who prayeth to be "received for the default of her husband, before she be re"ceived." [MONAHAN, C. J. Is there any authority to show that a woman, sued jointly with her husband in a personal action, can take defence alone?]-There is no distinction between real and personal actions in this respect, for the error would appear on the record in the one case as much as in the other. The second passage in the Natura Brevium is (p. 98):—“In a præcipe quod reddat "against the husband and the wife at the Grand Cape, the husband "appeareth in person, and the wife appeareth by attorney, who hath 66 a warrant which is insufficient, by which judgment is given, upon "the default of the wife, against the husband and wife, &c., yet "they shall have a writ of disceit, if they were not summoned," &c. In a case where the wife alone has ground for demurring, what is the husband to do ?-[MONAHAN, C. J. Could they not both demur to the whole cause of action, and could not the husband then plead COPINGER v. QUIRK. |