1853. WALLER V. DRAKEFORD. goods in question were taken in distress as for rent due from Bambrough, the tenancy of the house having in fact, some time previously, been changed from plaintiff's name to that of Bambrough: and, when the bailiffs had been from three to four days in possession, the defendant was sent for by Bambrough, and so much of the goods sold to him, defendant, as sufficed to pay off the distress; and these goods were forthwith removed. In the course of the same day, the defendant purchased the remainder of the property under the circumstances hereinafter referred to. The defendant paid Bambrough and the bailiffs, by Bambrough's direction, the several sums agreed on for the two lots of goods, and took a receipt from Bambrough for the entire sum as for one payment. That, about a month after these occurrences, Bambrough was taken up and committed upon a charge of bigamy: and at the last Chester Summer Assizes he was convicted of having married the present plaintiff, he having at that time another wife living; and he is now undergoing punishment upon this conviction. It was also admitted that, up to the day of the arrest, neither the plaintiff nor the defendant had even a suspicion but that her marriage with Bambrough was valid; and that none of the goods, the subject of the present action, were the property of Bambrough; and that they had been purchased prior to the decease of Drakeford, plaintiff's second husband, and in her possession from his decease to the time of her marriage with Bambrough, and in the same house, and so continued until the distress; that plaintiff was not executrix of, nor had taken administration to, either her first or second husband; and that the plaintiff did not oppose the transactions with Bambrough and defendant, but that she actively interfered to carry them out; to The questions for the opinion of the Court of Queen's are: 1. Whether or not, upon the facts stated, the decision of the Judge was right or wrong in point of law. 2. And, in case the Court of Appeal consider it right in law, whether or not there ought not to have been a deduction from the amount of the judgment to the extent of the sum paid to the bailiffs for rent and expenses. Welsby, for the appellant (the defendant in the plaint). The goods are not the plaintiff's property; for they belong to the representatives of one of her deceased husbands, it is immaterial which. She seems at one time to have been in possession; and, whilst she was so, she probably was able to maintain a possessory action against 1853. WALLER V. DRAKEFORD. 1853. WALLER V. every person except the legal representative of her deceased husband: but, before the defendant did anyDRAKEFORD. thing, she parted with that actual possession, and conferred it on Bambrough. After having done so, she could maintain no action even as against a wrong doer. Besides, supposing that the property was her own, she constituted Bambrough her agent to sell it: and, though she was induced to do so by a mistaken belief that he was her husband, she is bound to the defendant who was no party to the deception. Miller Serjt., contrà. The plaintiff had no intention to part with the property in these goods, though she obeyed the man whom she erroneously believed to be her husband and therefore owner of the goods. Suppose a servant had by her master's orders delivered a parcel to a purchaser from him, believing it to contain his property, but the master had, without the knowledge of the servant, sold the servant's property: the servant would not be concluded from asserting her property. That would be like the present case. Welsby was not called upon to reply. Lord CAMPBELL C. J. It seems to me clear that the Judge ought to have given judgment for the defendant. In the first place, the plaintiff shews no property in her sufficient to maintain the action. It is clear that she never had any absolute property; for the goods belonged to the personal representative of one or other of her deceased husbands. But, though she had no right of property as against the personal representative, yet as against a wrong doer mere possession might be sufficient to enable her to maintain an action. But the defendant cannot be considered as a wrong doer as to her, the goods having been taken with her concurrence and assent; and therefore mere possession would not be sufficient to enable her to maintain the action against him. But, further, even if the property had been absolutely her's, it would be so on the ground that she was in fact a feme sole, as otherwise it would have belonged to Bambrough. And, being a feme sole and capable of contracting, she represented to the defendant that Bambrough had authority to sell these goods. It is found that she not merely "did not oppose the transactions with Bambrough and defendant, but that she actively interfered to carry them out." By so doing she constituted Bambrough her agent to sell the goods: he did sell them and she cannot now say that it was no sale. WIGHTMAN and CROMPTON JS. concurred (a). Decision reversed with costs. 1853. WALLER V. DRAKEFORD. (a) Erle J. was absent. 1853. EVANS, FREDERICK Friday, EDWARD EVANS, in 1844, FREDERICK LONGDON and THOMAS WALMSLEY against The LANCASHIRE and YORKSHIRE Railway Company. An Act, passed DEBT. The declaration stated that, by stat. 7 & 8 Vict. c. lxxxii (a), The Ashton, Stalybridge, and making a rail way from A., contained a clause that nothing in that Act should prevent its being subject to any general Act, relating to railways, subsequently passed. It also contained a clause authorizing The L. & M. Railway Company to purchase the line. The L. & M. Railway Company did purchase the line. In 1847 an Act was passed, reciting the Acts under which The L. & M. Railway and its branches were made, including the Act of 1844, and, that it was expedient that the powers conferred by them should be altered. It changed the name of the Company from The L. & M. Railway Company to The L. & Y. Railway Company, and incorporated the general Acts of 1845 with that Act, so far as not inconsistent therewith. The L. & Y. Railway Company injuriously affected lands of O., after 1847, by works done under the powers of the Act of 1844. 0. gave notice that he chose to have his claim settled by arbitration under The Lands Clauses Consolidation Act, 1845; and, the Company not having done anything, he formally appointed F. arbitrator for both. F. made his award, but more than three months after his appointment. Held, that The Lands Clauses Consolidation Act, 1845, applied, and that O. was entitled to have the claim settled by arbitration in manner provided in sect. 68. But held, also, that sect. 23 applied as well to arbitrations under sect. 68 for claims for damages to lands taken, as to arbitration for claims for lands intended to be taken; and consequently that the award was out of time. (a) Local and personal, public: "For making a railway from The Manchester and Leeds Railway to the towns of Ashton under Lyne and Stalybridge." Royal Assent, 19th July 1844. This Act incorporates The Ashton, Stalybridge, and Liverpool Junction Railway Company, by that title. It contains clauses analogous to those after. wards enacted in The Lands Clauses Consolidation Act, 1845, but not quite identical. Sect. 343 authorizes The Manchester and Leeds Railway Com pany to purchase The Ashton, Stalybridge, and Liverpool Junction Railway. Sect. 387 enacts: "That nothing herein contained shall be deemed or construed to exempt the railway by this or" certain therein "recited Acts authorized to be made from the provisions of any general Act relating to this Act which may pass during the present session of Parliament, or of any general Act relating to railways which may pass during the present or any future session of Parliament." The Court having decided this case upon the more general ground, it is not thought necessary to state fully the provisions of the special Acts. |