was the case of Bonar v. Macdonald (2), where the principal debtor was a clerk in a bank, and he was afterwards appointed as manager to a district branch of that bank, with power to discount bills. There there was a change altogether in the nature of his employment, and, therefore, the surety for him as clerk was no longer surety for him as manager. The same reasoning applies to the case of the bailiff of a county court-Pybus v. Gibb (3), where the statute altered afterwards the jurisdiction of the Court, so that the risk of the surety for such bailiff was increased. That is my view of the cases, and for the reasons I have mentioned I think the plea is bad.

WILLES, J.-I am of the same opinion. The declaration alleges in effect that the principal debtor was appointed in 1852 collector of poor-rates, and in 1856 collector of sewers and general rates, and the bond was given by the defendants, as sureties, to secure the proper conduct of the principal as collector of poor-rates and sewers rates under his existing appointments, and also to secure his good conduct in respect of his being re-appointed to collect all, or some, or one of the rates. The declaration afterwards goes on to allege that he misconducted himself by not accounting and paying over money he had received for rates. That declaration might be proved by shewing either that he was collector of poor-rates and that he misconducted himself in that capacity, or that he was collector of sewers rates and misconducted himself in that capacity, or that he was appointed to both offices and misconducted himself in both. The defendants plead the establishment, under statute, of maindrainage rates, and states, first, a distinct appointment of the principal debtor as collector of the main-drainage rates, and next, that the principal debtor, as collector of the sewers rates, would be bound to collect the main-drainage rates; and it states further, that new duties were imposed in respect of the main-drainage rates which, if he discharged them, would impose new responsibilities on the sureties. That is the scope of the plea, and to that there is a demurrer, and it is familiar law that the plea, to be good, must answer all the causes of action stated in the declaration;

and if there be one cause of action therein stated to which it is no answer, there must be judgment for the plaintiffs. The question of law appears to be, whether the entire liability of the sureties for the principal debtor as collector of the poor-rates is discharged by the matter stated in the plea. I am of opinion that it is not. There is, I apprehend, a distinction between the new circumstances which affect the position of the sureties only, as, for instance, giving time, and cases where the condition of the principal debtor is altered. To the latter class belong the cases to which my Lord referred, of Bonar v. Macdonald (2) and Pybus v. Gibb (3). To this class of cases we must direct our attention, for unless this plea establishes an alteration in the condition of the principal debtor as collector of the poor-rates, it sets up no answer whatever. With respect to Bonar v. Macdonald (2), it is a mistake to suppose that the House of Lords laid down any such rule that additional labour to be done by the principal debtor and stipulated for by a distinct contract, would discharge the surety. In that case the clerk for whom the surety was responsible had not only an additional salary and additional labour, but also additional liability, and it will be found, on referring to the judgment of Lord Brougham, in which the judgment of Lord Cottenham is set forth, that it was because of that essential change in the obligation by altering the liability of the principal debtor that it was held that there was a discharge of the surety. Therefore the judgment of Lord Campbell in Pybus v. Gibb (3), when he speaks of the duties of the principal debtor being enlarged, must be understood in the sense of liabilities. The case of Pybus v. Gibb (3) was a case in which the principal debtor held an office which was enlarged with new duties and new liabilities.

I have observed on these cases because they were the strongest which Mr. Philbrick could produce, and I now turn to the present case. It is not necessary to consider whether the appointment of collector of poor-rates was an office; that would depend on whether it was to be held during a period, or whether the collector could be discharged. as an ordinary servant. But whether a

distinct office or not in point of law, the parties to the bond treat it as a distinct employment, as to which a liability may subsist wholly apart from the collection of sewers or general rates. That being so, the question arises just as if there had been a distinct bond given for the conduct of the collector of poor-rates, and as if the plea had set up in answer to a proceeding on the bond that the principal debtor was subsequently appointed collector of sewers rates. To such a case the authorities referred to are wholly inapplicable. With respect to the other question, probably what Mr. Gibbons stated in the outset may be right; but I cannot give an opinion until further facts appear before us, and I content myself with saying that the bond is not entirely discharged, and therefore that our judgment should be for the plain

tiffs.

KEATING, J. concurred.

MONTAGUE SMITH, J.-I am of the same opinion. The bond recites distinct appointments, and I think the liability of the sureties is to be taken distributively. Then, it is said that there was a change in one of the offices for the due performance of the duties of which the sureties are liable, which increased the risk of the sureties, and so the sureties were discharged. It is not necessary to give any opinion as to whether the duties have been so changed as to discharge the sureties; but, assuming that they would be discharged as to the main-drainage rates, they are not discharged as to the other independent office. It appears to me that it is the same as if the obligation of the sureties had been contained in two bonds; and supposing that were so, and that after one bond was executed by the sureties, Skillett was appointed collector of the main-drainage rates, that independent appointment would not interfere with the former contract, which related to Skillett being the collector of the poor-rates, and would not discharge the sureties as to such former contract. There is nothing in the plea to shew that his appointment of collector of main-drainage rates rendered him incompetent for the discharge of the duties of collector of the poor-rates. I think we are bound to regard these as two distinct appointments, and the bond applicable to

each as if there had been separate bonds. I am disposed to think that the cases in which the surety has been discharged, turn very much on the point of the contract itself being altered so as to prejudice the surety. That appears to be the principle of the decision in Bonar v. Macdonald (2), and that is the principle laid down in Bell's Principles of the Laws of Scotland, 5th ed., p. 95, in the passage cited in Lord Cottenham's judgment, where he says, "The rule is laid down in Bell's Principles, that the cautioner is freed by any essential change consented to by the creditor on the principal obligation or transaction without the knowledge or assent of the cautioner." Therefore, treating the collection of poorrates as a distinct appointment, the sureties were not discharged as to Skillett's liability for that; and therefore I think our judgment should be for the plaintiffs.

Judgment for plaintiffs.

Attornies-Walter, for plaintiffs; Walters & Gush, for defendants.

1866. Feb. 10.

PEACHE, appellant, v. COLMAN, respondent. Public-House-Opening on a Sunday11 & 12 Vict. c. 49. s. 1.

The appellant kept a public-house outside the Sevenoaks Railway Station, which was a mile from Sevenoaks. On Whitsunday, after the arrival of several excursion trains, and before half-past twelve in the day, several persons were in his house drinking; two were Sevenoaks persons, but the only evidence as to the appellant's knowledge that they were there was his remark (upon his attention being called to them as they left), that he was not aware Sevenoaks persons were there:-Held, that the Justices were not bound to convict him on a charge under 11 & 12 Vict. c. 49. s. 1. for having his house open illegally.

[For the report of the above case, see 35 Law J. Rep. (N.s.) M.C. p. 118.]

Principal and Agent-Agent for Sale of Goods-Payment to Agent-Settlement of Accounts between Agent and Purchaser.

The defendant advanced a sum of money to a factor on a general account, as against goods which were to be subsequently delivered to and purchased by the defendant. Goods were accordingly delivered, the property of different makers, part of them being the goods of the plaintiff, who had employed the factor to sell them for him on a del credere commission. The defendant knew which were the plaintiff's goods, and that the factor sold them only as agent for the plaintiff. On a settlement between the factor and the defendant the accounts between them were balanced, by the latter paying the factor the difference between the price of the goods and the sum advanced-Held, that the defendant could not treat any part of such advance as a pre-payment for the plaintiff's goods, and that the settlement between the defendant and the factor did not make any portion of the advance which was applied to the payment of the plaintiff's goods a good payment as against the plaintiff.

This was an action brought to recover the sum of 2741. 7s., for goods sold and delivered. The pleas were, never indebted, and payment.

The cause was tried, before Montague Smith, J., at the last Suminer Lancashire Assizes, when the facts appeared to be that the plaintiff, who traded under the name of "Paul Catterall, Son & Co.," was a cotton-spinner at Preston, and employed one Joshua Armitage, a commission agent at Blackburn, to sell yarns on his account, upon a del credere commission, as broker. The defendant, a manufacturer at Blackburn, trading under the name of "Edward Briggs & Co.," dealt with Armitage, in purchasing from him, as agent for the plaintiff and others, yarns marked with the initials of the parties spinning them. Previous to the 14th of October, 1864, he had purchased from Armitage yarns of the plaintiff's, and paid for them in cash, NEW SERIES, 35.-C.P.

and there was no evidence of any other mode of payment as between him and Armitage before that date. On that day the accounts between them being then balanced, Armitage applied to the defendant for a loan of 1,000l., which the defendant refused, but agreed to advance that amount for the purchase, at an agreed price, of yarns to be subsequently delivered. The defendant accordingly paid Armitage on that day 1,000l., and on the 19th and 21st of October deliveries of yarns of one Kershaw, to the amount of 7251. 13s., were made by Armitage on account of the advance. On the 24th of December and the 5th of January following he delivered yarns of the plaintiff's to the value of 5271. 38., and on the 11th of January a settlement took place by the defendant paying to Armitage the excess beyond the 1,000l. in cash, and so balancing the account between them to that date. The plaintiff, however, was not paid for those yarns by Armitage, who soon after became bankrupt. In taking the account the defendant debited Armitage not only with the 1,000l., but also with interest for delay in the deliveries, as well as discount, short weights, &c. He put to his credit the yarns as delivered, without specifying the makers, but he knew which were the yarns of the plaintiff, and that Armitage sold them as agent. The jury found that the 1,000. was advanced to Armitage upon a general account, and not for Kershaw's yarns specifically, that being the only question the parties desired to be so left. The verdict was entered for the defendant upon the plea of payment, leave being reserved to the plaintiff to move to enter a verdict for him for the amount he claimed, namely, 2741. 78., or for such other sum as the Court might think fit, if the transaction between the defendant and Armitage did not prove payment to the plaintiff.

A rule nisi to that effect having been afterwards obtained by E. James, on behalf of the plaintiff,

Temple and J. Edwards shewed cause.→→→ It was contended by the plaintiff at the trial that the 1,000l. was not paid as against the plaintiff's goods but as against Kershaw's. The jury having found that the payment was made by the defendant on his general account, it is submitted that

Y

the defendant became entitled to the verdict. It was a payment of 1,000l. in advance, which, according to Chief Justice Wilde, in Fish v. Kempton (1), would bind the principal. In that case Chief Justice Wilde says, "Where a factor sells with notice to the vendee that he sells as factor, payment to him is good, even though made prematurely." Moreover, when the settlement of accounts took place between Armitage and the defendant in January, 1865, there was such an appropriation of this 1,000l. to the plaintiff's account, as according to Favenc v. Bennett (2) would amount to a payment which would bind him.

Kemplay, in support of the rule.-However the 1,000l. was paid, whether specifically as against Kershaw's goods or generally on the account between Armitage and the defendant, it does not affect the plaintiff's rights. When the settlement took place between Armitage and the defendant there was nothing which amounted to a payment which was binding on the plaintiff. Suppose the plaintiff had refused to deliver goods, the defendant could not have sued the plaintiff for money had and received in respect of the 2747. 78., the amount of the balance of the 1,000l., after paying what was due for Kershaw's goods. This shews that no part of the 1,000l. could be considered a payment on account of the plaintiff's goods. Then it is clear Armitage had only authority from the plaintiff to receive payments in money, and therefore the writing off on the settlement of accounts so much of the, 1000l. as remained due to the defendant after Kershaw's goods had been paid for was without authority from the plaintiff, and cannot be taken as payment to that extent of the plaintiff's debt -Todd v. Reid (3), Bartlett v. Pentland (4), and Sweeting v. Pearce (5). The exception to this is where there is a custom to make settlements in accounts by taking credits as payments, and such custom is known to and binding on the principal

Stewart v. Aberdein (6); but that does not apply to the present case. The payment here, as regards any part of the 1,000, was before anything was due to the plaintiff, and was only a debt from Armitage to the defendant. Cur, adv. vult.

The judgment of the Court (7) was now (Jan. 12) delivered by

KEATING, J.-[After stating the facts as above, the learned Judge proceeded as follows:] A rule having been granted, cause was shewn last term, and, after hearing the arguments and considering the case, we think the rule should be made absolute to enter the verdict for 2741. 7s. That a broker or agent employed to sell has prima facie no authority to receive payment otherwise than in money, according to the usual course of business, has been well established, and it seems equally clear that if, instead of paying money, the debtor writes off a debt due to him from the agent, such a transaction is not payment as against the principal, who is no party to the agreement, though it may have been agreed to by the agentsee the judgment of Abbott, C.J. in Russell v. Bangley (8) and Todd v. Reid (3), the authority of which upon this point is not affected by the correction as to a fact by Baron Parke in Stewart v. Aberdein (6). It has also been held by this Court, in the case of Underwood v. Nichols (9), that the return to the agent of his cheque cashed for him by the debtor a few days before, was not part payment as against the principal; "It amounts to no more," said Chief Justice Jervis, "than the debtor seeking to discharge his debt to the principal by writing off a debt due to him from the agent, which he has no right to do." We think the present case the same in principle with Underwood v. Nicholls (9).

When the plaintiff supplied his goods on the 24th of December and the 5th of January, Armitage had from the 21st of

(6) 4 Mee. & W. 224; s. c. 7 Law J. Rep. (N.S.) Exch. 292.

(7) Erle, C.J., Willes, J., and Keating, J. (8) 4 B. & Ald. 398.

(9) 17 Com. B. Rep. 239; s. c. 25 Law J. Rep. (N.S.) C.P. 79.

the preceding October been in debt to the defendant to the amount of 2747. 78., being the difference between the amount for Kershaw's yarns and the 1,000l. advanced, and the defendant so treated it in his own account. Now, the only way in which the goods so supplied were ever paid for was by writing off that amount from the 1,000l. and paying the balance in money, which is precisely what was decided in Underwood v. Nichols (9) not to be a good payment as against the plaintiff. And it is to be observed it did not appear there was any usage or course of business that would at all make it so; on the contrary, the evidence shewed that all the payments for goods delivered before and after the transaction in question were payments in money in the ordinary way, and that the advance of the 1,000l. was an isolated and exceptional transaction; neither was there any proof whatever of any ratification by the plaintiff, who at once repudiated any authority to Armitage to receive payments for his yarns except in money.

It was argued by the counsel for the defendant that the advance of 1,000l. might operate as a pre-payment, and that such would be good, and for this he cited the dictum of Chief Justice Wilde in the case of Fish v. Kempton (1). The case itself only decided that a set-off by the debtor of a debt due to him by a known factor, would not be good as against the principal; but the dictum of Chief Justice Wilde was referred to as distinguishing between setoff and pre-payment, and suggesting that the latter would have been good. It is unnecessary, however, to say more in the present case than that the dictum of the Chief Justice applied to the case of a payment to the factor as part of the particular transaction, and which the principal could treat at the time as being made to his agent for him, whereas in the present case the payment was not made on account of the plaintiff's yarns, so as that the plaintiff could have called upon Armitage to account for the 1,000l., or any part of it as money received to his use. Had he done so the answer of Armitage would have been that, although a pre-payment in which the plaintiff had a possible interest, yet, inasmuch as the whole might have been exhausted in payment of Kershaw's or other yarns of

the agreed quality, the plaintiff would have no right to treat it as a payment to or for him until a subsequent act of appropriation, which in substance is nothing more than writing off a debt, should take place. It is unnecessary therefore to express any opinion upon that dictum as to the law or usage as applied to factors, as we do not think it applies to the present case.

It is right to notice, though it was not pressed in argument as creating a distinction, that Armitage acted under a del credere commission from the plaintiff. We think this makes no material difference as to the question raised in the case. The agent selling upon a del credere commission receives an additional consideration for extra risk incurred, but is not thereby relieved from any of the obligations of an ordinary agent as to receiving payments on account of his principal.

The rule therefore to enter a verdict for the plaintiff for 2741. 7s. will be absolute. Rule absolute.

Lands Clauses Consolidation Act (8 & 9 Vict. c. 18), s. 68. - Action on Award · Plea traversing injurious Affection.

By an award made under the Lands Clauses Consolidatian Act (8 & 9 Vict. c. 18), the arbitrator awarded one entire sum as the amount of damage sustained by a person by reason of his messuage being injuriously affected by the execution of the works of a railway company, to wit, by the erection of an embankment, and by the narrowing of the road in front of the said messuage. To a declaration in an action on this award for not paying the sum awarded, the company pleaded, that the said messuage was not injuriously affected by the narrowing of the road-Held, on demurrer, a good plea.

Declaration, after reciting that the plaintiff was seised in fee of a messuage, situate