88), the clause, which was contended to operate as an exception, was contained in a subsequent statute. Here the sections creating the offence must be taken together, and the exception is contained in one of them. Cur, adv. vult. Lord DENMAN, C. J., now delivered the judgment of the Court.-Two questions were made in this case: first, whether the defendants were at liberty to give a second conviction in evidence after a first had been returned to the quarter sessions; and, secondly, whether either of the convictions is good. It appears, by the evidence, that the plaintiff was convicted by the defendants of an offence, under the 7 & 8 Geo. 4, c. 30, and committed to prison for a month, in February, 1847. The conviction was drawn up in form, and transmitted to the then next quarter sessions, (as directed by the 40th section of the statute), in April of the same year. In the intermediate time a habeas corpus to discharge the prisoner, on the ground of a defective commitment, was obtained, returnable before a learned judge at the assizes at York held in March of that year, who considered the commitment good, and remanded the prisoner. At the trial of this action, the conviction returned to the quarter sessions in April was put in, and also another conviction of the same date, but transmitted to the sessions held in June of the same year. It was contended, for the plaintiff, on the authority of the case of Chaney v. Payne, (1 Q. B. Rep. 712; 6 Jar. 79), and from the terms of the 40th section of the statute, that the defendants could only rely upon the conviction returned in April, and were not at liberty to give that which was returned in June in evidence. It was determined in Chaney v. Payne, that after a conviction is quashed for informality another cannot be drawn up to protect the magistrate. In that case, in this, the conviction could not be quashed, nor brought before the Court directly by the convicted party, as the certiorari was taken away; but in that case the commitment, which recited a conviction which was returned to the sessions, having been held bad, by reason of a defect in the conviction, as truly recited, it was held to be too late for the magistrates to draw up a second amended conviction; and that the effect was the same as if the original conviction had been quashed. In the present case, no conviction had been transmitted to the sessions at the time the question of the validity of the commitment was before the learned judge at York. If, instead of remanding the prisoner, the judge had discharged her, and the conviction had been transmitted to the April' sessions, as directed by the statute, the case would then have resembled in circumstances that of Chaney v. Payne, and that conviction must have been taken to have been the conviction recited in the commitment, and determined upon by the judge; and another conviction, subsequently drawn Up, and transmitted to a subsequent sessions, would not have been admissible. The judge, however, in this the conviction as recited in it, before any formal concase, remanded the prisoner upon the commitment, and riction had been transmitted to the quarter sessions at all. Nothing, therefore, had taken place equivalent to quashing the conviction; and the case is clearly, we think, distinguishable from that of Chaney v. Payne, inasmuch as it wants the circumstance which was the ground of decision in that case. good conviction, the latter must appear to be for the same offence. If any authority were needed for such a proposition, the case of Rogers v. Jones (3 B. & C. 409) is directly in point. In the commitment in question, the offence is stated to be "wilfully and maliciously cutting up and destroying a quantity of fruit-trees in a garden in her (the prisoner's) occupation," for which she is convicted in the sum of 4l. 13s. 8d., and in 8s. 6d. for costs; and, having refused to pay the fine and costs, is committed to prison for one calendar month, unless the fine and costs are sooner paid. The stat. 7 & 8 Geo. 4, c. 30, has two sections, the 19th and 20th, applicable to the offence of "unlawfully and maliciously cutting, breaking, barking, rooting up, or otherwise destroying or damaging the whole or any part of any tree, sapling, or shrub, or any underwood;" the 19th applying to injuries, exceeding the amount of 17., to trees, &c. in a garden; and the 20th, to injuries to the amount of 1s. to trees, &c. growing anywhere. It has also two sections, the 21st and 22nd, applicable to the offence of "unlawfully and maliciously destroying, or damaging with intent to destroy, any plant, root, fruit, or vegetable production growing in any garden,' (by sect. 21); or any cultivated root or plant used for the food of man or beast, or for medicine, distilling, dyeing, or any manufacture, growing in land not being a garden, (by sect. 22). It has also a section, the 24th, applicable to the offence of wilfully and maliciously committing any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no remedy or punishment is thereinbefore provided." The offence stated in the commitment is that of wilfully and maliciously cutting up and destroying fruittrees in a garden; and, if the damage done exceeded the value of 17., would be within the 19th section, (if an offence at all); and, if the damage done were to the value of 1s., it would be within the 20th section. The statute containing specific enactments and penalties for malicious injuries to trees, where the damage is to the extent of 1s. or upwards, we are strongly inclined to think that the 24th section of the statute was not intended to apply to injuries to trees at all; and that, if the injury be less in amount than 1s., it is too inconsiderable to be made the subject of prosecution. But, in any view of the case, we are of opinion that the 24th section can only be applicable in case the damage is less than 1s. Both the convictions appear, from their terms, to have been under the 24th section, but in neither is the amount of the damage stated. The commitment also says nothing as to the amount of the damage; it is, therefore, quite uncertain under which section of the act the offence of which the prisoner has been convicted really came. The consequences of conviction under the several sections are very different, and entirely dependent upon the amount of the damage done. We are, therefore, of opinion that the commitment and both the convictions are defective, for not shewing some specified amount of damage, that it might be known for certain under what section of the statute the prisoner has been convicted. The rule, therefore, will be absolute.-Rule absolute. COURT OF COMMON PLEAS.-HILARY TERE SMYTH and Others v. ANDERSON.-Jan. 15 and 18. We are also of opinion that the 40th section of the statute is merely directory, and that the transmitting conviction to the April sessions does not preclude the right of the magistrates to draw up, and produce in evidence, another conviction, transmitted to a subse-If an Agent buys Goods on Credit for an unnamed Prin quent sessions. The remaining question, then, is, whether either of those convictions is good, and will support the commitment. In order to support a bad commitment by a Unnamed Principal-Home and Foreign—Liability of— Payment by to his Agent. cipal, Payment by the Principal to his Agent of the Price of the Goods before the Credit expires may, under some Circumstances, deprive the Vendor of his Right to sue the Principal. Kymer v. Suwercropp (1 Camp. 109) is not an Authority to the contrary. The Right of the Vendor to sue a Home Principal, when discovered, is undoubted, provided that the Vendor has not elected to charge the Agent exclusively at all events; | provided also, that the State of Accounts between the Principal and his Agent is not such as would make it unjust that the former should be sued. and what they ought to have been; and the memorandum concluded thus: "Now, it appears the commission ought to be 17. 10s. per cent. on amount of invoices, 277. 1s. 11d., leaving 247. 4s. 4d. to be re-credited." Soon after, Anderson & Co., in Bombay, had received the account transmitted to them by Melville & Co. and after it had also been communicated to the defendant, they transmitted from Bombay to Melville & Co. (with whom they had large dealings) sums of money, more than sufficient to discharge the two bills, After the receipt of these remittances, and before either of the bills arrived at maturity, Melville & Co. stopped payment, being at the time indebted to Anderson & Co. to the amount of 24521. Both bills having been dishonoured when due, the plaintiffs, as also Smyth & Co., demanded payment of the defendant, which being refused, the present action was brought. The plaintiffs contended, that throughout the transaction credit had been given to Anderson & Co., the principals, and not to Melville & Co., the agents; and that the bills had been drawn upon the latter only by way of collateral security. The learned judge left it to the jury to say, whether the plaintiffs, with the knowledge that Anderson & Co. were the principals, and Melville & Co. the agents, had elected to give credit to the former. He also told them, that if Anderson & Co., in consequence of their name not having been mentioned at the time the goods were ordered, were to be considered as undisclosed principals, whom, when discovered, the plaintiffs would have had a right to sue; still, the transactions which subsequently took place between Anderson & Co. and Melville & Co., in respect of their accounts and these bills, would deprive the plaintiffs of any right they might otherwise have had of suing the former. The jury returned a verdict for the defendant. A Foreign Principal is in no Case liable to an Action, at the Suit of the Vendor, for the Price of Goods purchosed by an Agent resident in England. Assumpsit for goods sold and delivered, money paid, work done, commission, interest, and upon an account stated. Plea, non assumpsit. The cause was tried before Wilde, C. J., at the Guildhall, on 18th December, 1848, when the facts appeared to be as follows:-The plaintiffs, Smyth, Cowan, and Pender, carried on business in Manchester as commission agents, under the firm of Pender & Co. Smyth and Cowan also carried on business (in which Pender was not interested) as merchants in Glasgow, under the firm of Smyth & Co. The defendant was partner in a firm of Anderson & Co., merchants, resident in Bombay; and Melville & Co. were their London agents. The order for the goods, the subject of the present action, was given to the plaintiffs in July, 1847, by Melville & Co., on account of, and in execution of directions received from, Anderson & Co. The name of the latter was not mentioned when the order was given; but the invoices, sent by the plaintiffs a few weeks after to Melville & Co., were in the following forms:-" Invoice of forty cases, goods bought, and lying here to order, on account of Messrs. A. Anderson & Co., Bombay, per Messrs. Melville & Co., London, by John Pender & Co., agents;" and Invoice, six cases, goods bought and forwarded to Messrs. Leach, Harrison, & Co., Liverpool, to be shipped Jan. 15.-Shee, Serjt., (Greenwood with him), moved by on account and risk of Messrs. A. Anderson for a rule nisi for a new trial, on the ground of misdi& Co., Bombay, per Messrs. Melville & Co., London, rection, and that the verdict was against the evidence. by John Pender & Co., agents." At the time these It is submitted, that the learned judge misdirected the invoices were sent, two bills were drawn by Smyth & jury, in omitting to state to them that the payment by Co., of Glasgow, at the request and for the use of the Anderson & Co. to Melville & Co. (assuming it to have plaintiffs, upon Melville & Co., and accepted by the been made to discharge these bills) being made prelatter, for the price of the goods. The first, a bill for maturely, before the bills were due, did not protect the 12867. 198., was at six months, and fell due on the 26th defendant. In Smith on Contracts, 282, it is said, that February, 1848; the second, for 6467. 16s. 6d., was at "a principal cannot, by prematurely settling with his four months, and fell due on the 24th January, 1848. agent, deprive the other contracting party of his right The goods were shipped, and arrived safely at Bombay; of election." A payment before the expiration of the and Anderson & Co., about the same time, received an credit on which goods are sold is such a premature account from Melville & Co., in which the latter debited payment. (Kymer v. Suwercropp, 1 Camp. 109). It is them with the amount for which the bills were drawn, also clear upon the evidence, that the plaintiffs did elect and also informed them, that Melville & Co.'s accept to charge the principal and not the agent. [Maule, J. ances had been given for and on account of these goods-It seems odd that a manufacturer at Manchester supplied by the plaintiffs. The statements of the should elect to give credit to a house in Bombay. If as matter shipments were sent to Melville & Co. from Smyth & the defendants had been resident in France, Co., of Glasgow, and were headed thus:of law, it would be assumed that credit was given to the agent. Is not the same law applicable here?] In down as matter of law, that credit is given to an agent Thompson v. Davenport, (9 B. & C. 78), it is not laid "To John Pender & Co., agents." buying for a foreigner, but that merchants have that understanding; and it is not singular that the plaintiffs Soon after the goods had been shipped the defendant elected to give credit to the defendants, when they had arrived in England, and a difference which had arisen the collateral security of an English firm. In Addison between the plaintiffs and Melville & Co., as to the v. Gandasequi, (4 Taunt. 573), it is said, that the plainquality of certain of the goods, was referred to him, and tiff, who had sold the goods, had debited the agent in he had interviews with the plaintiffs at Manchester, and his books and invoices, and, therefore, could not recover with Smyth & Co. at Glasgow, on the subject; and against the principal; but from the invoices in the prealso with reference to some charges to which he ob- sent case, there can be no doubt but that Anderson is jected, made by Smyth & Co., in the above-mentioned mentioned as the principal. [Wilde, C. J.-He may statements; and a memorandum, in his handwriting, be mentioned merely as consignee of the goods: the was, at his request, forwarded to Smyth & Co. by the invoices would be as effectual to shew that credit was plaintiffs, commencing thus:-"Explain to Messrs. given to Melville & Co. as that it was given to AnderSmyth & Co. that they charge 17. per cent. in the in-son & Co.] The words "per Melville & Co." exclude voice for buying, and again, 17. 10s. per cent, on the statement, making 27. 108. per cent." Then followed a calculation of the difference between the actual charges "Manchester, (date). "Messrs. A. Anderson & Co., per Melville & Co., London. the supposition that they were principals. This is like the third case mentioned by Littledale, J., in Thompson v. Davenport, "The seller may, in his invoice and bill of parcels, mention both principal and agent: he may the facts pretty evidently were so put to the jury; hat defit A. as a purchaser for goods bought through B., the Lord Chief Justice, in the course of his charge, also his agent. In that case, he thereby makes his election stated the following proposition of law, which was the to charge the principal, and cannot afterwards resort to only one ultimately, I think, questioned by the learned the agent." (Cresswell, J.-Against that presumption, counsel who moved for the rule nisi:-" Putting it," is the fact in this case of the bills having been drawn the judge said, "as a possible case (which, however, as upon the agent.] Bayley, J., in Thompson v. Daven- I have already remarked, was excluded by the evidence) port, says, "If the agent does make himself personally that Anderson & Co. were unknown principals in this liable, it does not follow that the principal may not be contract, whom the plaintiffs, but for something which Hiable also; subject to this qualification, that the princi- deprived them of it, would have had a right to sue when pal shall not be prejudiced by being made personally discovered, the transactions which took place between liable, if the justice of the case is, that he should not Anderson & Co. and Melville & Co., in respect of their be personally liable," that is, if the principal has paid accounts and of these bills, did deprive the plaintiffs of his agent. In this case, it does not appear that he has that right." Several cases have been cited, and more paid his spent for these goods, and, if he has, he did it particularly these three, Paterson v. Gandasequi, Adprematurely. There is no plea except non assump-dison v. Gandasequi, and Thomson v. Davenport, which at if the defendant had relied upon payment to his have formed the basis of any legal discussion which has agent, he should have pleaded it specially; the state of occurred on subjects of this description of late years. accounts between the defendants and Melville & Co. in And in them the rights of a vendor, where the purchase November were not admissible in evidence on this issue. has been made by an agent, on behalf of a principal, Maule, J.-I think any special plea, setting up these known or unknown, Englishman or foreigner, have facts as a defence, might have been' demurred to, as been considered. There is no doubt, that where a conManchester and Glasgow relative to the dispute about resident in this country, and nothing has been done to assumpsit.] What took place at tract is made by an agent for an unknown principal the goods, and the memorandum in the defendant's shew that the vendor elected at all events to charge the handwriting as to the statements of shipments, was evi-agent exclusively, he may, on discovering the principal, 94) was also referred to.] dence of an account stated. [Feise v. Wray (3 East, charge him. In the first two cases, this was either as amounting to non Cur, adv. vult. The Court delivered judgment on January 18th. MATLE, J.-This was persons, trading under sumed or ruled to be the law, where the vendor deals with the agent, supposing him to be the principal. Thomson v. Davenport went further, and decided, (what might have been doubtful before, and as to which there were strong reasons to be urged on both sides), that an action brought by certain Co. at Manchester, against the defendant, one of a the firm of John Pender & firm trading under the name of Anderson & Co. where the agent discloses that he has a principal, but at Bombay, for the price of goods, which had been does not mention his name, and the vendor does not bought by Melville & Co. of the plaintiffs for the inquire, still the latter, on discovering the principal, use of the defendant and his partners. Some ques- may sue him. A principal, whose name is not commution was made at the trial, as to whether, at the time nicated, whether his existence is or is not, is put on the the goods were bought, the name of Anderson was men- same footing as a principal whose existence is not comtioned; but it appeared, that two bills were drawn by municated. In that case, as was intimated by the Smyth & Co., of Glasgow, at the request and for the Court, the question might have been raised whether use of the plaintiffs, upon Melville & Co., and accepted Thomson was liable at all as buyer, on the ground that for the price of the goods, payable at the expiration of he was resident in Scotland, or perhaps on some other the credit on which the goods were sold; and, at the ground, and, possibly, had the question been raised, it time the bills were drawn, there is no doubt, from the would have been decided in favour of the defendant. evidence, that the plaintiffs were well aware that the But it was assumed, by those who disputed his liability, goods were to be remitted to Anderson & Co. Indeed, that he was a buyer; but they said, inasmuch as the the great probability is, that it was known at the time seller knew there was a principal, but did not choose to the order was originally given. It also further ap- ask after him, he must be taken to have contracted with peared, that Melville with Anderson & Co.. & Co., who had large dealings the agent exclusively. Now, it is that proposition and had sent over to the latter at that alone which the Court negatived in Thomson v. Bombay an account, in which they debited them with Davenport; but, in the judgment of Bayley, J., there the amount of these bills, and pointed out to them, that are some dicta on the subject of limiting the liability the bills had been accepted for and on account of the of an undisclosed principal to this effect:-"It is said goods which had been sent to them; and I think that that the seller ought to have asked the name of the the defendant was in England, and had notice of this principal, and charged him with the price of the goods; also. After this was known to the defendant and his by omitting to do so, he might have lost his right to firm, larger sums of money than the price of the goods claim payment from the principal, had the latter paid were remitted by them from Bombay to Melville & the agent, or had the state of the accounts between the Co., in England. Now, it certainly appears to me, that, principal and agent been such as to make it unjust that considering these for persons resident in Bombay, who were entirely un- therefore, in his opinion, the right to sue the principal known to the plaintiffs, and that the latter took bills is limited, not only by the latter paying the agent, but be no reasonable doubt that this was a sale by the such as to make it unjust that the contract should be for the amount accepted by Melville & Co., there could also by the state of accounts between these two being plaintiffs to Melville & Co. and not to Anderson & Co. enforced against the principal. A similar proposition That the latter stood in no situation at all of buyers, is to be found in Railton v. Hodgson, (2 Smith's Lead. any more than does a foreigner, resident abroad, who Cas. p. 207). In that case there was a curious kind of buys goods of a manufacturer in England through an concealment. Hodgson was really the principal, but preagent also resident in England. In such a case, it is tended to be the agent. Mansfield, C. J., says, "If Hodgwell known that there is no privity between the son had really paid Smith, Lindsay, & Co., it would have foreigner and the seller, and that the foreigner is in no depended on circumstances whether he would be liable case liable to an action at the suit of the latter, but to pay for the goods over again; if it would have been that the agent is; and probably, if the matter had been unfair to have made him liable, he would not have been specifically put to the jury in that way, they would so. It is to be observed, that payment is put by both have had no hesitation about it. It seems to me, that these learned judges as one instance only of the circum stances under which, in the language of one, it would be" unjust," and, in the language of the other, "unfair," that the plaintiff should enforce his contract against the defendant. Now, these two dicta (and I do not find anything contradictory to them in any other case) seem to me to afford a reasonable rule on the subject. In the present case, however, it is said, inasmuch as the remittance which was made by Anderson & Co. to Melville & Co., to enable them, amongst other purposes, to meet these bills, on which they had incurred a liability to the nominees of the plaintiffs, was made before the time of credit for the goods had expired, that, according to the case of Kymer v. Suwercropp, such a payment would not avail to discharge the defendant. In that case, four specific quantities of coffee were sold by auction to Kenyon & Co. By the conditions of sale, the goods were to be paid for on delivery, and were to be weighed and taken away within one month from the day of sale. The coffee, therefore, became the property of the purchaser by the contract of sale, but he was not entitled to get possession of it until he chose to pay for it, and that he was bound to do within a month; that is, he was entitled to have possession upon payment at any time, within which it could reasonably be delivered, not exceeding a month. Kenyon & Co. were the brokers of the defendant, the buyer, which was not known to the plaintiffs till the 8th July, on which day Kenyon & Co. became insolvent. A great part of the coffee had previously come to the defendant's hands; the warrants for the delivery of it from the West India Docks having been given to him by Kenyon & Co., who had received them from the plaintiffs. For so much he paid Kenyon & Co., by accepting a bill, dated 15th June, drawn by them upon him at one month after date, which was satisfied when it became due. In that case, therefore, a purchaser of coffee, who had no right to receive it, until he was ready to pay for it, which he was bound to do within a month, obtained the coffee within the month, without paying for it in money-without, therefore, paying for it according to his contract. If we are to suppose that there was a representation by Kenyon & Co. to the defendant, or a well-founded belief on his part, that they had advanced the money for him, and paid the plaintiffs, then it would have been as if the coffee were the property of Kenyon & Co., which they might part with on what terms they pleased; but there is nothing in the case to suggest any supposition of that kind; and it does not seem very probable that Kenyon & Co., who were soon about to become insolvent, would be in advance in paying for this coffee for a person for whom they were not bound to make any such payment. It is more probable that this bill transaction was between Kenyon & Co. and the defendant, without the knowledge and in fraud of the plaintiffs; for, by means of it, the defendant got the coffee with out paying ready money for it, which he had no right to do; and Kenyon & Co. obtained a bill, which would be of some service to them, they being soon about to stop payment, as they actually did very shortly afterwards, and before the month expired. In this state of things, the plaintiffs tendered to the defendant the warrants for the residue of the coffee, on the last day on which he was bound to receive it, and demanded payment. To this demand there could be no answer; it was a clear case of goods bargained and sold. But, in answer to the demand for payment for the coffee, which the defendant had received, he said, "I have already paid Kenyon & Co." The plaintiffs said, "No, it is true that you have paid them a bill, but you had no right to the coffee without paying ready money. Had you paid ready money, we should probably have been bound by that payment, and could not have repudiated it, although Kenyon & Co. had afterwards become insolvent. But, as you have not paid for the coffee in the way you were bound to do, and as we had a right to expect that you would do, we have a right to repudiate that part of the transaction." That was probably the view which Lord Ellenborough took, and which would clearly sustain the plaintiffs' right to the verdict; supposing the facts to be as I have stated them, and as they are to be found reported in 1 Campb. 109. In some of the books, this case has been treated as if it had been a sale upon credit. But, by a sale on credit, one generally understands a sale, where the buyer gets the goods before he is bound to pay his money. Whereas, here, the buyer said, "I will buy the coffee, and pay for it within a month, and you, the seller, shall give it to me when I pay for it," which was, in fact, a sale for ready money. Then, Lord Ellenborough says, "A person selling goods is not confined to the credit of a broker who buys them, but may resort to the principal, on whose ac count they are bought; and he is no more affected by the state of accounts between the two than I should be were I to deliver goods to a man's servant pursuant to his order, by the consideration of whether the servan was indebted to the master, or the master to the ser vant. If he lets the day of payment go by, he may lead the principal into a supposition that he relies solel on the broker; and if, in that case, the price of the good has been paid to the broker, on account of this decep tion, the principal shall be discharged. But, here, pay ment was demanded of the defendant on the severn days it became due, and no reason was given him to be lieve that his broker alone was trusted. He has re ceived a great part of the coffee, and enjoyed the benefi of it. The right of the vendors is entire, unless he ha paid them, or some person authorised by them to re ceive payment. Kenyon & Co. had no such authority therefore he is still liable. The rest of the coffee was stopped, only to prevent its getting into the hands of the insolvent brokers; and, as payment was to precede the delivery, it was enough if the plaintiffs, on being paid, were ready to have delivered it." It is clear that Kenyon & Co. had no authority to receive a bill in pay. ment, and hand over the coffee to the defendant; there fore, this decision is perfectly supported by the facts It is to be observed, however, that in p. 180 of the same volume of Campbell, is this note: "In Kymer v. Suwercropp, a rule for a new trial was discharged, on the ground that the defendant had not properly substanti ated the fact, that he had paid the broker for the coffer delivered to him; but the Court did not give any de cided opinion as to the effect of payment by the vendet to the broker before the day of prompt, when the war rants for the delivery of the goods have been parted with by the vendor, and passed to the vendee." The Court, therefore, thought the facts here stated had not been entirely made out to their satisfaction; but as they did not disturb the judgment of Lord Ellenborough, he must be considered to have correctly decided that, under all the circumstances of that case, the defendant had no right to defeat the plaintiffs by setting up a payment not made in conformity with his obligation, and which was accepted by the brokers, contrary to their duty. That is all that the decision in that case comes to; and it seems to me to be perfectly consistent with the rule laid down by Bayley, J., and by Mansfield, C. J., that the plaintiff shall be barred from recovering, when, in consequence of transactions between the defendant and his broker, it would be unfair that the plaintiff should recover. this proposition, that no transaction between the broker It is, however, often cited, as if it established and the concealed buyer, his principal, shall bar the recovery of the vendor against the latter, except a payment at or after the time that the money became due according to the contract. Now, nothing of that kind was there held: the vendee was held to be not disthat the vendor had a right to expect; there could, charged, because he had never paid at all in any manner therefore, be no kind of unfairness in his being made to pay; but it is by no means said, that no circumstances can occur, except payment after the day, which shall make it unfair for the vendor to recover against the vendee. Text-writers have also said, "That if the vendee pays his broker after the money has become due," (and I suppose without notice that the vendor intends him to pay him and not the broker), "that will be a payment always which will bind the seller." That may be very true, but it does not follow, that, in all other possible and conceivable cases, the seller shall not be bound, but shall be entitled to recover against the vendee, although it may be ever so unjust and iniquitous that he should recover. The difference between the case of Kymer v. Suwercropp and the present is very striking. If, in that case, the bill had been given to the plaintiffs, instead of to Kenyon & Co., or, if the plaintiffs had known of it, or had desired the defendant to give it to Kenyon & Co., and had directed them to deliver the coffee on that being done, then, I apprehend, the plaintiffs would have been bound by the payment, because they would have been parties to the transaction. That would have approached more nearly to what took place in the present case. But the transaction there between the broker and the vendee was without the knowledge of the vendor-was contrary to his interest, and in violation of the terms of the contract. Here, on the contrary, the whole arrangement was made by and for the benefit of the plaintiffs, the vendors; they desired to have negotiable instruments particularly accepted by Melville & Co., who were persons of great credit; they get bills so accepted given, not to themselves, but, for some purpose of their own, to their nominee; they had the power to put, and did put, them into circulation, and raised money upon them; and this they did with the full knowledge that Melville & Co. were agents for Anderson & Co., who resided in Bombay, to which place the plaintiffs themselves directed the goods to be shipped; knowing also, that, in the natural course of dealing, and in pursuance of that arrangement, Anderson & Co. would, as they did, and as it was their duty to do, remit funds to Melville & Co. to cover these bills. The plaintiffs at their own request obtained these bills; in like manner they must be taken to have requested that all should be done, and to have known that all would be done, that was necessarily incident to that. This remittance must, therefore, be taken to have been made at the request, and with the cognisance of the plaintiffs; and the question is, whether the defendants, having, in so making this remittance, paid for the goods once, (for it was in substance and in truth a payment for the goods), it is fair that they should be made to pay for them again? It seems to me that a stronger instance than the present, of a case falling within the rule to which I have adverted, could not be propounded; supposing always that this state of things existed, as it did upon the hypothesis that Anderson & Co. were concealed buyers, to whom, upon discovery, the plaintiffs would have had a right to resort for payment. Under these circumstances, I think that the fact of the money having been paid before the credit for the goods had expired, and before the bills were due, does not at all prevent the defendant from availing himself of this defence. In the case of a transaction between parties all living in the same country, and where no bill is given, and where there is no occasion for any remitLance to put the broker in cash against the payment becoming due, if the principal, before it is due, and without the privity or knowledge of the vendor, pays his agent, one can see that it may be just not to allow the principal to avail himself of that as a defence. But we are not to adhere to the letter of a particular case, and make it, what it was never intended to be, the parent of a general rule. It seems to me, therefore, that the proposition of law, stated by the Lord Chief 215 Justice, was perfectly correct, and in conformity with the principle of established cases, and it would be most inconvenient to express any doubt about it; not inconvenient, however, as regards the dealings of foreigners with English people, for they are protected by the ordinary rule which prevails in such dealings. In point of fact, a foreigner, purchasing through an English agent, is not a purchaser at all; there is no contract of sale between him and the vendor; and, therefore, the difficulty which there might be, as to his right or not to avail himself of such a defence as has been here considered, cannot arise. The vendor has no right of suing to be deprived of; and there can be no question, therefore, whether he is or is not deprived of that right. A question was raised, upon moving for this rule, whether this defence could be set up under a plea of non assumpsit; upon which, at the time, I expressed an opinion, and to that opinion I adhere. I think it is clear, that any plea in this matter would be a roundabout plea of non assumpsit. There was a want of that proof of an indebitatus upon which an assumpsit could be founded. In fact, the defendant's liability never arose in consequence of the transaction between the plaintiffs and Melville & Co. He never was indebted in money for goods sold and delivered; and the facts from which the promise would be implied not having arisen, the promise did not arise. The defendant was, therefore, entitled to the verdict; and this rule must be refused. Kymer v. Suwercropp certainly does not seem to have WILDE, C. J.-I will just observe, that the case of been very accurately understood. The marginal note is, "If goods are bought by a broker, the principal is liable to the vendor, if called upon when payment becomes due, although he has previously paid the price of the goods to the broker." give rise to any such doctrine? The warrants for the delivery of part of the goods had been handed by the Do the facts of the case seller to the broker of the buyer, and that possibly agent for what? Agent to deliver the goods to the buyer, and to receive payment when they were delimight constitute the broker agent for the seller. But vered, according to the terms of the contract. The defendant did not pay according to the terms of the contract, but in a different mode; and the agent did not receive payment, according to his authority. The real objection in the case was, not that the principal had paid his broker before he was bound to do so, but that he had not paid him at all, in accordance with the contract. With respect to the other portion of the goods for which the warrants had not been delivered, the objection made was, that there had been no proper tender of the warrants, which is in nowise applicable to the point now under consideration. But this case is cited as deciding, that a payment by a principal to his agent before prompt is due, is not a good payment as against the vendor. That may or may not be; but the case decides no such thing, for the money there had become due at the time the transaction, which was set up as a payment, took place, but which was not a payment contemplated by the contract. I entirely concur in the judgment delivered by my Brother Maule. CRESSWELL and WILLIAMS, JJ., concurring-Rule refused. COURT OF EXCHEQUER.-HILARY TERM. plead-First, not guilty. Secondly, not possessed. |