ASHDOWN v. MANITOBA LAND CO.

Contract with agent under seal.—Liability of principal.

Plaintiffs as assignees of W. & B. declared upon a contract under seal made between W. & B. and M., whereby W. & B. agreed to erect a certain building for M.; it was further alleged that M. was authorized by the defendants to make the contract for them in his own name as their agent; that W. & B. entered into the contract with M. as and being the duly authorized agent of the defendants; that the defendants duly authorized all the work and took the benefit of the contract and the work.

Upon demurrer,—

Held, that the defendants were not liable upon the contract.

The declaration was as follows:

"For that by a certain contract bearing date the fourth day of February, 1884, made in writing under seal, and signed and executed by Henry Rutherford Morton, it was agreed that in consideration of Joseph Williams and William Blackmore building for the said Henry Rutherford Morton an apartment house on, &c., the said Henry Rutherford Morton would pay to the said Joseph Williams and William Blackmore therefor the sum, &c.; and the plaintiffs aver as the fact is that the said Henry Rutherford Morton was duly authorized by the defendants to make the said contract for them in his own name as their agent, and the said Joseph Williams and William Blackmore did enter into the said contract with the said Henry Rutherford Morton, as and being the duly authorized agent of the said defendants, and in that behalf, that the said defendants duly authorized all the work done thereunder or by virtue thereof, and took the benefit of the said contract and the work done thereunder."

Then followed allegations of assignment by W. & B. to the plaintiff, and performance of the work.

The defendants demurred.

J. W. E. Darby for defendants.-The count cannot be upheld as a count in assumpsit; it is clearly framed in covenant; there is no promise averred or implied; the contract averred negatives any possibility of consideration for a promise from defendants to

plaintiffs; the work is to be done for and to be paid for by Morton, not defendants; the pleas of non assumpsit or nunquam indebitatus would not do to such a count. The general issue is clearly non est factum. Neither can plaintiffs recover on the agreement as alleged. The deed alleged is Morton's, and not defendants. Williams & Blackmore elected to take Morton's covenant, and plaintiffs are bound by their election. Where agent contracts under seal in his own name, though really for a principal, the agent is bound, and not the principal. Action, if any, should be in the name of Williams and Blackmore; the cause of action alleged is not a chose in action, assignable under Con. Stat. Man. p. 613 (same as R. S. Ont., p. 1117). There was no existing claim matured or maturing at time of assignment to plaintiffs, and plaintiffs say "they did build and complete the said apartment house, &c." Inferentially, Williams & Blackmore had done nothing at the time of assignment. Even if plaintiffs have a remedy at equity, they have clearly none at law.

Defendants cannot be held except under their corporate seal; not even can they be bound by deed executed by attorney under circumstances alleged.here No privity between plaintiffs and defendants. The plaintiffs-who are strangers to the contract alleged, the assignment to them not being within the statutesue the defendants upon a contract to which they (defendants) are not parties, in which they are not interested, and by which they are not liable.

In re International Contract Co., Pickering's claim, 6 Ch. 525; Evans on Principal and Agent, pp. 171-175; Doig v. Holley, Man. L. R. 61; Story on Agency, 147, 148, 149 (n. 4), 175; Thompson v. Davenport, 2 Sm. L. C. 400; Higgins v. Senior, 8 M. & W. 834-845; Jones v. Littledale, 6 Ad. & E. 486; Silsby v. Dunnville, 8 Ont. App. 525; Hall v. Bainbridge, 1 M. & G. 42; Wilks v. Back, 2 East. 142; Cayhill v. Fitzgerald, I Wil.. 28-58; Appleton v. Binks, 5 East, 148; Stone v. Wood, 7 Cowen, 453; Taft v. Brewster, 9 John. 334; Stackpole v. Arnold, 11 Mass. 27; Robbins v. Butler, 24 Ill. 387; Clements v. Machebœuf, 92 U. S. Sup. Ct. 418; Con. Stat. Man. 613; R. S. O. 1117; Mitchell v. Goodall, 44 U. C. Q. R. 398; 5 Ont. App. 164; Abbott's Law Dictionary, tit. "Chose in Action" Smith v. Corporation of Ancaster, 45 U. C. Q. B. 86.

A. E. McPhillips for plaintiff. That Morton acted as agent only may be shown by evidence. Humfrey v. Dale, 26 L. J. Q. B. 137; affirmed on appeal, 27 L. J. Q. B. 390; Higgins v. Senior, 8 M. & W. 844; Beckham v. Drake, 9 M. & W. 91; Steiglitz v. Eggington, 1 Holt, 141; Bolt v. Dunsterville, 4 P. R. 313; Colder v. Dobell, L. R. 6 C. P. 486; Lindus v. Bradwell, 5 C. B. 583; Bateman v. Phillip, 15 East. 272. The count is good in assumpsit, the rest of it being taken as inducement. Kelner v. Baxter, L. R. 2 C. P. 175; Wilson v. Tumman, 6 M. & G. 236; Brook v. Hook, L. R. 6 Ex. 89. The seal of the company was not necessary, South of Ireland Colliery Co. v. Waddle, L. R. 3 C. P. 463; Pauling v. London and North Western Ry. Co., 8 Ex. 867; Reuter v. Electric Telegraph Co., 6 E. & B., 341; Nicholson v. Bradford Union, L. R. 1 Q. B. 620. The contract was in the ordinary course of the company's powers and not, therefore, necessary to be under seal. Shelford on Joint Stock Companies, 365; Angell on Corporations, 220, 211, 296; Stephens on Joint Stock Companies, 463, 478, 352, 366. [22nd January, 1886.]

WALLBRIDGE, C.J.-Does this count show a contract made by Morton, or does it show a contract by defendants through and by means of Morton as defendants' agent,-in other words, does it show a contract by which the defendants were themselves bound, which is all I have to inquire into. Williams & Blackmore agreed with Morton to build for Morton. This agreement was in writing, signed and sealed by Morton, and Morton agreed to pay them. Thus far it is Morton alone who is said to contract. Then follows an averment, that Morton was duly authorized by defendants to make the said contract for them, in his own name, as their agent, and that Williams & Blackmore entered into the contract with said Morton, he being the duly authorized agent of the defendants in that behalf, that defendants duly authorized all the work to be done under and by virtue thereof, and took the benefit of the contract and the work done thereunder. What meaning am I to attach to this method of stating the liability of the defendants? Is it a liability of Morton, or is it a liability of the defendants? It is certainly a liability of Morton, but is it also a liability of defendants? There is no allegation that the defendants personally contracted, or that they contracted in any other way than through Morton, and then it is set out by

what kind of obligation Morton contracted. In a contract under the hand and seal of Morton himself, expressed to be for work to be done for him, and for which he gave his covenant to pay. Can that in any sense be said to be the contract, agreement or obligation of these defendants. I think Pickering's Case, 6 Ch. 525 is really conclusive on this point, besides the numerous passages cited from Story on Agency. In Pickering's case it is expressly held that a principal is not bound on a contract of this kind, and this case seems precisely in point.

Then, as if to give a clearer meaning to what the plaintiffs claim, they state that they are assignees of Williams & Blackmore's contract with Morton, and of the work done for him. What is assigned to the plaintiffs is the very basis upon which the action is brought, and that is alleged to be the said contract, the extras, the proceeds of the same, and the funds and monies which Morton or the defendants were to pay for the same.

In my opinion there can be no reasonable doubt that this count is framed upon the Morton contract and the assignment of it to the plaintiffs, and for the work done by the plaintiffs and their assignors under it. They set up no other right to go on with the contract except as they acquire it by assignment of the Morton contract.

It was strongly urged by Mr. Mc Phillips that there is a good contract, by parol, between plaintiffs and defendants, leaving out all that is said as to Morton. I do not think there is. At best it can only be said that Morton, having authority to contract for the defendants, did in fact contract in his own name. It is not said that the contract professes to have been made on behalf of defendants, but at best that having authority to make a contract for defendants he made it in his own name, and to such a contract the law does not attach a liability on these defendants. Appleton v. Binks, 5 East, 148.

I allow the demurrer with costs.

QUEEN v. SCOTT.

Trials under Speedy Trials Act.—Election.

A prisoner charged with the crime of perjury cannot be brought up before a judge of the Court of Queen's Bench under the Speedy Trials Act.

L. W. Coutlee for the Crown.

N. F. Hagel, Q. C., for the prisoner.

[8th May, 1886.]

DUBUC, J.-Under the Speedy Trials Act, 32 & 33 Vic. c. 35, s. 2, the sheriff has notified me in writing that the prisoner David H. Scott has been committed to jail under the charge of forgery, for the purpose of my causing the prisoner to be brought up before me to elect whether he desires to be tried summarily by a judge. Section 1 of the same statute says, that a judge may try any prisoner, if he so consent, for any offence for which he may be tried at a Court of General Session of the Peace. That statute was applicable, first, only to the Provinces of Ontario and Quebec. By 38 Vic. c. 54, the same statute was made to apply to this Province, and it enacts that as respects the Province of Manitoba the expression "A Court of General Session of the Peace" in the Act 32 & 33 Vic. c. 35, shall mean and include the Court of Queen's Bench of that Province, and the expression, "the judge," shall mean "the chief justice" or "a puisne judge" of the said court. By 47 Vic. c. 41, the said court is meant to include the county court judge's criminal court, and the authority is given to the county court judge. The jurisdiction of the Court of General Session of the Peace is not defined by the statutes establishing the said court in Ontario and Quebec, but it is enacted that it shall have the same jurisdiction as the same court in England. The jurisdiction of the Court of the General Sessions of the Peace seems to have been defined in England by Statute 34 Edward III. c. 1 (1300), and to include all felonies and trespasses, which means that even capital offences could be tried by such court. But by 5 & 6 Vic. c. 38, certain offences are excepted from those triable at the General Sessions of the Peace, and