WILLIAMS, J.-In my opinion there was no case for the jury. 1860. METCALFE TON. CROMPTON, J.-If the jury had found a verdict for the HETHERINGplaintiff, the verdict would have been wrong. There was no evidence to warrant such a finding. WILLES, J.-I agree with my brother Williams that there was no evidence to go to the jury. BYLES, J., and BLACKBURN, J., concurred. Judgment affirmed (a). (a) The demurrer was then struck out by arrangement. IN THE EXCHEQUER CHAMBER. (Appeal from the Court of Exchequer.) Withers v. IsabELLA PARKER, Executrix of G. S. PARKER. May 14 & 15. THIS was an appeal against the judgment of the Court of Exchequer in discharging a rule to enter the verdict for P. having recovered judg ment against F., the sheriff, on the 15th April, seized F.'s goods in Hampshire under a fi. fa. in that action, and left a man in possession. On the same day F. executed a bill of sale to W., and a writ of fi. fa. in an action by W. against F. was lodged with the sheriff for execution. On the 1st of May, F. was taken in Middlesex under a writ of ca. sa. issued on P.'s judgment, and thereupon P.'s attorney, at Southampton, immediately wrote to request the sheriff to withdraw from possession under the f. fa. The officer received the letter, but his man continued in possession of the goods and did not in fact withdraw. The officer, however, told W. that he would hold for him under the writ. A summons was taken out to set aside the ca. sa. for irregularity, when F. was discharged out of custody, and an order was made by consent, "that on payment of the judgment debt on a certain day no ca. sa. should be issued, but in the meantime the plaintiff should be at liberty to proceed on the fi. fa. already issued, and under which the sheriff of Hants is now in possession." The consent to the order was given by the London agent of W., who was the attorney for F. in the action against him by P. W. knew nothing of the terms of the order at the time it was made, and, when he heard of it, took no steps to set it aside.-Held, in the Exchequer Chamber (affirming the opinion of the Judges in the Court below), that W. was bound by the consent of his London agent to the order, and thereby precluded from contesting that the sheriff was in posses. sion under P.'s writ. the plaintiff on the grounds that the fi. fa. of the defendant was withdrawn, and that the Judge's order of the 4th of May, 1858, did not affect the rights of the plaintiff. The material facts stated in the case on appeal fully appear in the report of the case in the Court below (4 H. & N. 524). Collier argued (a) for the plaintiff, and Montague Smith for the defendant. The arguments were in substance the same as those in the Court below. In addition to the authorities there cited, Howard v. Cauty (b), Gregory v. Cotterell (c), Curtis v. Mayne (d), and Alchin v. Wells (e), were referred to. COCKBURN, C. J.-We are all of opinion that the judgment of the Court of Exchequer ought to be affirmed. We think it unnecessary to pronounce any decision on the first point, viz., whether there was a withdrawal on the part of the sheriff under the fi. fa. issued by the defendant, so as to let in the plaintiff's writ, or whether, on the other hand, there was a continuous possession, so that the possession under the defendant's writ was never divested; because we are all agreed that the plaintiff was a party to the order of the 4th of May, so as to be precluded from contesting that the possession of the sheriff under the defendant's writ continued. It is true that the order was obtained by the London agent of the plaintiff, who was acting as the attorney of the execution debtor, and without the plaintiff's knowledge; but we concur in the view taken by two of the Judges in the Court below, that an attorney (a) Before Cockburn, C. J., (c) 5 E. & B. 571. is bound by what is done on his behalf by his London agent. No doubt there is a distinction between the characters in which the plaintiff acted, and two distinct interests were involved: but where an attorney has an individual interest, and also his client's interest, it is impossible to hold that when, as an attorney he has assented to a given course of proceeding, he is at liberty to contend that he has withheld his assent as an individual by simply holding his tongue. We have less hesitation in discharging this rule, because it is plain that the plaintiff must have seen that the defendant was placing herself in a position of considerable disadvantage as to the terms upon which she consented to the order by which the plaintiff's fi. fa. was to be considered in operation, since the execution debtor obtained an extension of time for payment of his debt. The plaintiff knew of the order, and if he felt that his interest as a private individual had been interfered with, the proper course was to have got the order rescinded on that ground. He did not do so, but allowed it to remain for many months, and consequently he has altogether precluded himself from now objecting to it. Therefore, without expressing any opinion as to whether the execution of the defendant's writ of fi. fa. was suspended, we think, on the ground to which I have adverted, that the judgment of the Court below must be affirmed. Judgment affirmed. 1860. WITHERS v. PARKER. 1860. IN THE EXCHEQUER CHAMBER. May 15. If personal chattels are sold in a man ner binding according to that disposition Prussian vessel "Augusta Bertha," by Russian merchants at Onega, for an English firm carrying on business at Hull. The vessel struck on the rocks on the coast of Norway, CAMMELL and Others v. SEWELL and Others. THIS was a proceeding in error upon the judgment of the Court of Exchequer on a special case, the material facts of which are stated in the report in the Court below, 3 H. & N. 617. Bovill and Milward argued for the plaintiffs, and Wilde (with whom was Honyman), for the defendants, in Hilary Vacation, Feb. 9, and Michaelmas Vacation, Nov. 29 & 30, 1859, before Cockburn, C. J., Wightman, J., Williams, J., Crowder, J., and Byles, J. Crowder, J., having died, the case was re-argued before Cockburn, C. J., Wightman, J., Williams, J., Crompton, J., Byles, J., and Keating, J., in Hilary Vacation, Feb. 9, 10 & 11, 1860. Arguments for the plaintiffs.—When the vessel struck on the coast of Norway, and the goods were landed there in safety, the captain was in possession of the cargo without but the cargo was landed safely. A survey was held, when the surveyors recommended, as best for all parties, that the ship and cargo should be sold, and the cargo was sold accordingly. It appeared that, by the law of Norway, though the captain might not under such circumstances be able to justify the sale as between himself and the owners of the cargo, an innocent purchaser would have a good title to the property bought at such sale.-Held, by the Court of Exchequer Chamber, that the sale in Norway bound the property, and that the goods having afterwards come to this country, the owner claiming under such sale had a good title to them as against the underwriters to whom the cargo had been abandoned: Ryles, J. dissentiente. Per Cockburn, C. J., that though the goods were the property of English owners, yet as they never were on board a British ship, and never reached British territory, the law of England never attached to them, and therefore could not apply to the case. any power to sell it. By the abandonment the captain 1860. CAMMELL v. SEWELL. |