1858.

[150]

[151]

1858. March 26.

[152]

HINTON v. FORESTER.

(1 F. & F. 150-151.)

In an action against two persons not partners, but having a joint power and authority (as trustees under a deed of assignment in trust for creditors), for work done or goods supplied on the order of one of them, any acknowledgment of liability on the part of the other, although accompanied by some qualification, or apparently made under some mistake of law or fact, may be left to the jury, as evidence of a ratification or of a precedent authority. ACTION for work done and materials supplied.

Plea: Never indebted.

Hawkins for the plaintiff.

Joyce for the defendant.

The particulars showed that the claim was for builder's work, to a house which had belonged to one A.

The defendant Forester had given the plaintiff the order, and apparently on his own account. He and the other defendant, one Alder, were co-trustees under a deed of assignment by A. for the benefit of creditors.

After the work was done the plaintiff met Alder and said, "You also are liable as a co-trustee," to which Alder answered, 'Well, if I am, I am," or words to that effect. That was his own account of the matter when called at the trial; the plaintiff's was that he acknowledged his liability.

WILLIAMS, J.:

The only question is, whether Alder is jointly liable with his co-trustee. He is not liable unless he concurred in or consented to the order; but if he did so afterwards that would be sufficient; and whether he did so it is for you to determine. Verdict for the plaintiff (1).

SUTTON v. BATH.

(1 F. & F. 152—156.)

In an interpleader issue between claimant and execution creditor. the plaintiff claiming under a bill of sale for alleged advances to the assignor, a son, the question is, whether the property was really intended to pass, and this will greatly depend upon whether the advances were really made; but it is not conclusive that the assignor's object was to evade an execution, because, except in cases of bankruptcy or

(1) The case was moved, and a rule granted to set aside the verdict, as against the weight of evidence or without evidence; and it was pressed, that Alder's alleged acknowledgment was a mere hypothetical admission under a mistake of law; but on argument of the rule per CURIAM, there was evidence which it was impossible

to withdraw from the jury; for though the defendant Alder may not have meant to admit his liability, as it is alleged he did, that was a question for the jury; and, under all the circumstances, it was for them to determine whether it amounted to an acknowledgment.

insolvency, a debtor may prefer a particular creditor and pay him in money or in goods; and the question will be, whether he really meant to do so, or only to pretend and appear to do so for the purpose of escaping the execution, the goods to be afterwards resumed by the assignor.

In an assignment of all the furniture in a house, and comprised in a schedule annexed, goods bought and inserted in the schedule before, but not received until after, the execution of the bill of sale, will pass.

A medical student, who has only temporarily acted as surgeon's assistant, may be described on a registry under the Bill of Sales Act as "gentleman "(1).

INTERPLEADER issue between the claimant and the execution

creditor.

It appeared that the plaintiff claimed under a bill of sale from his son, dated the 9th January, 1857.

The notice of trial in the original action (trover for a piano) was given on the 10th January, and it was not disputed that the object of the assignment was to evade the execution upon the judgment anticipated in that action.

The plaintiff's son, the assignor, had a furnished house (in which he let lodgings), and the assignment was of all the furniture, &c. then on the premises, and mentioned in the schedule annexed.

The schedule had been prepared some days before the assignment was executed, and certain extra articles of furniture (which the plaintiff had suggested should be purchased to render the house more attractive to lodgers) had been ordered and partly paid for, and inserted in the schedule (as it was distinctly sworn) the day before the bill of sale was executed, though they were not brought into the house until the day after, viz., the 10th January.

The attorney who prepared the bill of sale was called, and stated that he had no instructions about it from the plaintiff, but only from his son, the assignor.

The verdict in the original action was on the 21st January. The bill of sale was not registered until the 23rd January, and during the interval was kept by the attorney.

It was then given to the son to be registered, and afterwards sent down to the father, the plaintiff, in the country. In the registry the son, the assignor, was described as "gentleman."

The plaintiff was a blacksmith living in the country, in a cottage at 8l. a year.

The plaintiff's wife swore that her husband had made advances to the son to the amount of 2001., partly to enable him to furnish the house.

The son was called and confirmed this, and that it was stipu(1) See S. C. 3 H. & N. 382,

SUTTON

v.

BATH.

[153]

SUTTON

v. BATH.

[ *154 ]

[155]

[ *156 ]

lated that the furniture should be assigned as security. He admitted on cross-examination that he had acted as surgeon's assistant (it did not appear for how long), but he denied that he practised as surgeon, or was a member of the college. He had written surgical works for remuneration, and had called himself therein and in advertisements "doctor" and "surgeon." It was attempted to enter into the transaction out of which the original action arose.

Sed per ERLE, J.:

That is wholly irrelevant, except only so far as it might tend to show that the assignment was merely colourable. It is not denied, however, that it was intended to escape the execution, but that is not fraud.

Hawkins, for the defendant, objected that the description of the assignor's occupation given in the bill of sale was insufficient.

Sed per ERLE, J.:

It is, in my opinion, clearly sufficient. Not being a surgeon, the assignor is not improperly described as a "gentleman." It is true that he has described himself as surgeon, and in common parlance he may be so, because any person practising as surgeon has a right to call himself so, for there is no statute against any one practising as a surgeon who is not a member of the college. But not being actually a surgeon, he was not required to describe himself as such. Indeed he could not properly have described himself as surgeon, not having any regular employment or practice as such.

*

*

Hawkins objected that the extra furniture was not com prised in the assignment; but

ERLE, J., upon the evidence, overruled the point.

The question is, whether the goods really passed under the bill of sale, or whether it was intended that they should pass, or whether the assignment was only pretended and colourable, and not intended to convey the property. If it were intended to convey the property it matters not that the object was to ovade the execution, the assignor not appearing to have contemplated insolvency, *for, except in cases of bankruptcy or insolvency, it is competent to a debtor to prefer a particular creditor, and pay him either in money or in goods. The question

is, whether he intended to do so, or only to appear to do so, for the goods to be resumed when the execution was evaded. In considering whether the property was intended to pass, it is important to consider whether the father was really a creditor, or to the amount represented, and whether the advances represented actually and really took place, as to which, though the advances were to a son, the professed object was natural and probable to advance him in life. And in this case it is stated that the advances were made on a precedent stipulation for an assignment by way of security.

Verdict for the plaintiff.

WYBORN v. GREAT NORTHERN RAILWAY

COMPANY.

(1 F. & F. 162-164.)

In an action against a Railway Company complaining that plaintiff became a passenger by their line, and that they so carelessly conducted themselves in the premises," that by their carelessness and improper conduct in that behalf, the carriage wherein the plaintiff was carried was thrown off the rails and broken, whereby the plaintiff was injured; it appearing that by reason of an extraordinary flood, an embankment over which the line passed had been overrun with water, which had worn away the soil and left the sleepers unsupported, so that the rails gave way: and there being conflicting evidence as to whether the drivers of the train-an express traincould have seen that the water was over the line; and they had driven the train at the ordinary express rate: the Judge told the jury that the defendants would not be liable if the accident arose necessarily and entirely by reason of the suddenness and extraordinary violence of the flood; but that they must consider whether there had not been negligence in not keeping a good look out, or in driving at such a speed under such circumstances. And though rules were granted in this and a similar case as against evidence, yet the learned Judge adhered to his direction, and semble, it was right. THE declaration stated that the plaintiff became a passenger on the defendants' railway for hire, and that they so carelessly and improperly conducted themselves in and about the premises, that through their careless and improper conduct and default in that behalf the carriage wherein the plaintiff was being carried was thrown off the rails and broken to pieces, whereby the plaintiff's leg was fractured, &c.

Plea: Not guilty..

O'Malley and Hayes, Serjt., for the plaintiff.

Mellor and R. Clarke for the defendants.

The plaintiff's case was commenced by calling witnesses to show that on the 13th August, on the night of which the disaster occurred, there had been a heavy storm of rain, and that in the evening the water had risen to the top of the embankmont upon which the line passed when the accident occurred,

SUTTON

2.

ВАТН.

1858.

[162]

and was flowing over it. The water *had afterwards washed away the soil of the embankment under the " sleepers," and this had caused the rails to slip, for want of support, when the train came upon it, and it went off the line.

Trains had passed safely not long before. The train was the (night) express train, and went at the ordinary express speed, forty-five to fifty miles an hour. The engineers admitted that they saw the water in the fields on the sides of the line, and that a little of it was on the line at or near the place in question; but they denied that they could see it on the line before they came to that part of the line. There was, however, evidence that they could.

It was pressed on the part of the plaintiff that at the place in question the line went over a tract of land which was a perfect level, and likely to be flooded (as it was flooded generally every year), and was raised only on a low embankment, liable to be washed away by a flood.

For the defendants it was urged that the storm was extraordinary, and that the drivers could not see any signs of danger.

WATSON, B. (to the jury):

The plaintiff can only recover by reason of negligence on the part of the defendants' servants. Negligence is a relative term. The care which is required in one state of things is different from that which is required in another; and the question is, whether there was due care under the circumstances.

Now the night being stormy, that was a reason for greater care; and if the water was over the line, that would be a reason for going slowly, because it would be impossible to know what the effect of the water might have been, or what stones or rubbish it might not have carried upon the line. You must consider whether, by keeping a good look out, the drivers might not have seen that there was water on the line, and whether it was prudent to go at the usual rate of speed under such circumstances.

It was hardly necessary to call witnesses to show that *the train should not have been driven at that pace over a line covered with water. That is a matter for your own understanding to judge of.

If the accident was entirely owing to the act of God in that extraordinary storm, and very shortly before the train came up the line had been washed away by it, the Company would not have been answerable for that.

But if you think that the Company's servants were not keeping a good look out in order to see water, or if they did see it,