appended to it-Higgins v. Senior (2), Calder v. Dobell (3), Phillips on Insurance, vol. i. p. 90.

Secondly-The evidence as to the custom in the colonial market was properly received, as tending to corroborate the evidence as to the custom in a similar trade. In Noble v. Kennoway (4), there was an insurance upon a vessel on her voyage from Dartmouth to Waterford, and from thence to the port or ports of discharge at Labrador, and on the goods and merchandises until the same should be there discharged and safely landed. The vessel was captured on the coast of Labrador, and the defence was that there had been unnecessary delay in unloading the cargo. In answer to the defence the plaintiffs called a witness to prove the custom in the Newfoundland trade. It was held that the evidence was properly admitted, as the same sort of fishing was carried on in the same way at Newfoundland.

[COCKBURN, C.J.-It appears that in 1763, before the date of the decision, Labrador had been actually annexed to Newfoundland.]

At any rate the custom in the fruit trade was amply proved by those who were conversant with it.

Murphy, in support of the rule.First, The custom is inconsistent with the contract. In Fairlie v. Fenton (5), it is expressly laid down that where the broker signs a contract note as broker, he cannot sue or be liable as principal. Then there is no authority for the reception of the evidence as to the colonial market. The plaintiffs ought not to be allowed, in shewing the usage in the fruit trade, to prove a different custom in a different market. He cited Fawkes v. Lamb (6).

COCKBURN, C.J.-I am of opinion that this rule should be discharged. I agree in the propriety and soundness of the decision of the Court of Exchequer in Fairlie v. Fenton (5), where it was held that a person contracting as broker on the face

(2) 8 Mee. & W. 834; s. c. 11 Law J. Rep. (N.S.) Exch. 199.

(3) 40 Law J. Rep. (N.s.) C.P. 89; in error, Ibid.

224.

(4) 2 Dougl. 510.

(5) 39 Law J. Rep. (N.s.) Exch. 107. (6) 31 Law J. Rep. (N.S.) Q.B. 98.

of the contract and not as principal, cannot be sued as a contracting party. But I also think that in this case evidence of a custom by which the defendant is personally liable was properly admitted. For although it is true that where the contract is signed by the defendant as broker, he cannot, in the absence of express terms, be liable, yet if he chooses to qualify the rule by saying that he is willing to incur liability, he may, though he professes to act as broker, be liable as principal. Here it was proved at the trial that there was a custom in the fruit trade by which, upon a contract framed like the one in question, the broker is personally liable, and if this custom had been written in extenso in the contract, there could be no doubt that the defendant intended to bind himself to the fulfilment of the bargain. I think that it must be taken as if the custom were imported in the contract, so that although the defendant signs as broker for a principal, yet these words assume a different character by virtue of the custom in the trade. I am therefore of opinion that evidence of the custom in the fruit trade was properly received. I have rather more doubt as to the admission of evidence of the custom in the colonial market. It seems to me to go further than the case of Noble v. Kennoway (4). It appears that at one time before the date of that case Labrador had been actually annexed to Newfoundland, so that it might fairly be inferred that the trade at both places was of the same description. Here, however, although the usage in the colonial market might have considerable weight with any reasonable man in deciding what was meant in the fruit trade, I think that it is by no means so clear that the evidence was rightly admitted. Still, I cannot say that I think it ought to have been refused, and am therefore of opinion that there is no ground for disturbing the verdict.

BLACKBURN, J.-I am of the same opinion. I agree that the decision in Fairlie v. Fenton (5) was right. There can be no doubt that where a broker deals as such he makes the contract between buyer and seller, and is not himself either buyer or seller or liable to be sued as a party to the contract. The law is laid down in

similar terms in Morris v. Cleasby (7). I think also that there can be no doubt of the correctness of what is said in Higgins v. Senior (2), that where the broker uses terms which shew that he is the contracting party and says, "I buy these," he is liable, and that this is the case wherever he enters into a written contract in his own name, although his principal may also be liable. It was accordingly held in Calder v. Dobell (3), that in an action against the principal, it is no answer that the contract was made by his agent in such terms as to make himself personally responsible. In the present case there was evidence of a custom in this particular trade, that the broker is personally liable unless he declares his principal, and according to Humfrey v. Dale (1) this evidence is admissible, to charge the broker as contracting party. Several questions were raised in Humfrey v. Dale (1), and if the matter were res integra I should have some doubt as to whether the defendant in such a case is liable as purchaser. My own impression is that his liability is analogous to that of del credere agents, as described by Parke, B., in Couturier v. Hastie (8). That learned judge, in speaking of these agents, says, "A higher reward is paid in consideration of their taking greater care in sales to their customers, and precluding all question, whether the loss arose from negligence or not, and also for assuming a greater share of responsibility than ordinary agents, namely, responsibility for the solvency and performance of their contracts by their vendees."

It seems to me that where a custom like that proved in the present case exists, it regulates the terms of the brokers' employment, and it is just as though a board were stuck up over their offices with the words, Nota bene.-We conduct business on the following terms. If we receive one per cent. (or whatever is the extra commission), or if we conceal the name of our principals for the sake of avoiding a disclosure of our business connections, we take upon ourselves the

(7) 4 M. & S. 566.

(8) 8 Exch. Rep. 56; s. c. 22 Law J. Rep. (N.s.) Exch. 102.

liability of del credere agents." Now I do not think that such terms so qualify the written contract as to be inconsistent with it. It follows that the evidence was properly admitted. With regard to the question as to whether proof of the usage in the colonial trade ought to have been admitted, I may mention that it seemed to be conceded at the trial, that the two trades were so far allied to each other that the same usages would be likely to prevail in both, and I thought that upon the question of the liability of a broker, evidence of his liability in a similar trade might be received. I quite agree that the evidence is entitled to very little weight, and that Noble v. Kennoway (4) is scarcely a sufficient authority for receiving it. The question may well be submitted to a Court of Error, if the defendants think proper to appeal.

MELLOR, J.-I am of the same opinion. I think the evidence as to the custom in the colonial trade was admissible and relevant, although the two trades were not strictly analogous to each other, as tending to shew the responsibility which a broker undertook under similar circumstances.

Rule discharged.

Attorneys-Lowther, Mullen, & Clare, for plaintiffs; Stibbard & Beck, for defendants.

1871.

}

Nov. 15. J

HAN

(In the Second Division of the Court.) CANWELL, appellant, v. SON, respondent. Metropolitan Building Act, 1855 (18 & 19 Vict. c. 122).-District Surveyor-Fees -Owner of Buildings.

The appellant laid out part of an estate, of which he was seised in fee, for building purposes. He agreed with L. that so soon as L. should have erected and covered in buildings upon four plots of land, he would demise to L. the several plots of land and the buildings thereon for the term of ninety-nine years, from the 29th of September, 1865, at the rent of a peppercorn, until the 24th

of June, 1870, and from thence, at the yearly rent of 281. during the remainder of the term. The buildings were to be completed by the 24th of June, 1870. This was not done, but the time was extended by the appellant, and the buildings were completed in or about September, 1870. The respondent, the district surveyor, having become entitled to fees in respect of surveying the buildings claimed them in October from L., and subsequently from the appellant:-Held, that the appellant was not the "owner" of the buildings within the meaning of ss. 3 and 51 of 18 & 19 Vict. c. 122, so as to be liable to pay the said fees to the respondent.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. p. 8.]

1871. Nov. 25.

}

STIMSON v. FARNHAM.

Sheriff Action for False Return Estoppel-Absence of Damage.

In an action against the defendant as sheriff for a false return, it appeared that the plaintiff had issued a fi. fa. against the goods of one F., and that the defendant, upon being ruled to return the writ, returned that he had seized the goods and chattels of F. and kept them in his possession until ordered to withdraw by the plaintiff. At the trial the statement in the return was not proved, but the defendant shewed that the plaintiff had sustained no actual damage, as the goods upon the premises of F. had been already assigned under a bill of sale, and could not be taken under an execution: -Held, that the defendant was entitled to the verdict, and was not precluded from shewing that his return was inaccurate.

Mildmay v. Smith, 2 Wms. Saund. 343, and Clerk v. Withers, 2 Ld. Raym. 1075, explained.

Declaration-That the plaintiff on the 15th of September, 1870, in the Court of Queen's Bench, recovered, by judgment against H. Follows, 74l., and on the 15th of September, 1870, sued out of the Court a writ of fieri facias directed to the sheriff of Leicestershire, commanding him to

cause to be made of the goods of Follows in his bailiwick 74., with interest, &c. That the writ was duly endorsed, and delivered to the defendant (who was then, and until after the time of making the return to the writ, Sheriff of Leicestershire) to be executed. Breach-That although, while the writ was in force and before the commencement of this suit, goods and chattels of Follows were within the bailiwick of the defendant, and he might and ought as Sheriff to have levied the amount endorsed on the writ, and a reasonable time for so doing elapsed before this action, yet that he wrongfully neglected the execution of the writ, and afterwards wrongfully and falsely returned to the Court upon the writ, that he had by virtue of it seized the goods and chattels in his bailiwick of Follows, and kept them safe in his possession until the 19th of September, 1870, when he received from the attorney of the plaintiff an order to withdraw from possession of them; whereby the plaintiff was injured and deprived of the means of obtaining the amount endorsed on the writ, &c.

Pleas, first, not guilty. Second, except as to the claim in respect of the return,— that there were no goods and chattels of Follows in the defendant's bailiwick, and that he could not have levied the amount endorsed on the writ. Third, that the defendant seized the goods and chattels under the writ, and kept them until the 19th of September, 1870, on which day, before any of the alleged grievances, the plaintiff by his attorney ordered the defendant to withdraw from possession of the goods and chattels, which he accordingly did, and made the return complained of in the declaration. Joinder of issue.

At the trial before Mellor, J., at Westminster in Easter term, 1871, it appeared that the plaintiff, as stated in the pleadings, in 1870 recovered judgment against H. Follows, a farmer in Leicestershire, for 741., and on the 17th of September issued a fieri facias against him, endorsed, to levy 761. and costs, which was delivered at the office of the defendant, who was sheriff of Leicestershire for 1870. The defendant's officer, in proceeding to execute the writ, found that Follows had absconded, and that the goods on his pre

mises were in possession of his brother, G. Follows, under a bill of sale. On the 19th the goods were sold by an auctioneer on behalf of G. Follows, and the plaintiff, who believed that the bill of sale was invalid, subsequently ruled the defendant to return the writ. On the 2nd of November the defendant filed the following

return :

"By virtue of the within writ, to me directed, I seized the goods and chattels in my bailiwick of the within named Henry Follows, and kept them safe in my possession until the 19th of September, 1870, when I received from J. W. Smith, the attorney of the plaintiff in the writ named, an order to withdraw from possession of the goods and chattels, whereupon I immediately withdrew from such possession." The action was then commenced. The only question left to the jury by the learned judge was whether the bill of sale was a valid one. The jury found for the defendant, leave being reserved to the plaintiff to move to set aside the verdict, and enter a verdict for the plaintiff for 771., on the ground that the defendant was concluded by his return. A rule having been obtained accordingly,

Mundell and Abbott shewed cause.The defendant is entitled to retain the verdict, for the return, though inaccurate, did not cause any damage to the plaintiff. It must be taken on the finding of the jury that the bill of sale was valid, and the only question is, whether the defendant as sheriff is estopped by his return from shewing the real facts of the case. In Williams v. Mostyn (1) it was decided that no action could be maintained against the sheriff for the escape of a prisoner on mesne process, no actual damage being shewn; and in Wylie v. Birch (2) the principle of that former decision was applied to an action for a false return. There the sheriff had returned that the goods were in his hands for want of buyers, and in an action for not paying over the proceeds of the goods and for a false return, he was allowed to shew that the execution was void as against the as

(1) 4 Mee. & W. 145; s. c. 7 Law J. Rep. (N.s.) Exch. 289.

(2) 4 Q.B. Rep. 566; s. c. 12 Law J. Rep. (N.s.) Q.B. 260.

signees in bankruptcy of the judgment debtor. It is true that in Remmett v. Lawrence (3), where the sheriff made an inaccurate statement in his return as to a previous seizure under another writ, Lord Campbell, while holding that he was not estopped by it, expressed an opinion that if the statement had been in the return made to the plaintiff, there would have been an estoppel. But this was a mere expression of opinion.

[COCKBURN, C.J.-If the sheriff had seized diamonds, and made a return that he had goods in his hands to a considerable value, and afterwards found that what he supposed to be diamonds were paste, would he be prevented from shewing their real value ?]

Such a case shews the injustice of the defendant's contention. In Levy v. Hale (4), where the sheriff in his return claimed to retain the proceeds of goods for possession money to which he was not entitled, he was allowed to shew in an action for a false return that he was bound to apply the money to rent due from the debtor, so that there was no damage to the plaintiff. It must be remembered that here the defendant did not return that he had the money in his hands. They cited Mayne on Damages, p. 4; Com. Dig. Sheriff; Field v. Smith (5); Woodgate v. Knatchbull (6).

Field and J. W. Mellor, in support of the rule. The defendant as sheriff is concluded by his return, for the plaintiff may be said to have acted upon it by bringing this action. In Field v. Smith (5) the Court refused to allow the sheriff' to shew that the proceeds of the goods belonged to the assignee in insolvency, because, if he had used due diligence, he might have known this when he made his return. Here also the defendant was guilty of negligence. In Levy v. Hale (4) Williams, J., refers to Mildmay v. Smith (7), and Clerk v. Withers (8) as support

(3) 15 Q.B. Rep. 1004; s. c. 20 Law J. Rep. (N.s.) Q.B. 25.

(4) 29 Law J. Rep. (N.s.) C.P. 127.

(5) 2 Mee. & W. 388; s. c. 6 Law J. Rep. (N.S.) Exch. 119.

(6) 2 Term Rep. 148.

(7) 2 Wms. Saund., 5th edit. 343. (8) 2 Ld. Raym. 1075.

ing the dictum of Lord Campbell in Remmett v. Lawrence (3). Both these cases shew that the defendant is estopped by his return.

[BLACKBURN, J.-They are cases of scire facias, and there the return was like a plea on the record.]

The defendant here made his return after being ruled to return the writ, and did not apply to amend his statement. They cited Standish v. Ross (9).

COCKBURN, C.J.-I am of opinion that the rule should be discharged. The action is founded in tort, that is, a wrongful act done by the sheriff in making this return, which we must take in one sense to be a false return. The fundamental rule that in actions of tort there must be a wrongful act and damage resulting from it applies here, unless the case is an exception on the ground that the sheriff is concluded from denying the statement in his return. We have, therefore, to see whether there is any authority for assuming this to be an exception to the general conditions which govern actions of this kind, and the authority relied upon is a dictum of Lord Campbell in Remmett v. Lawrence (3). Now the dictum was clearly unnecessary to the decision in that case, though it is no doubt entitled to the respect due to everything which fell from that distinguished judge. Still, it is not an authority which is binding upon us, and in Levy v. Hale (4), it was distinctly held that the sheriff is not estopped in an action for a false return from proving the real facts to shew that the plaintiff has sustained no damage. It is true that in Mildmay v. Smith (7) and Clerk v. Withers (8) it appears to have been held that the sheriff was not at liberty to controvert the facts stated in his return. But on turning to Mildmay v. Smith (7), we find that it was a case where the sheriff had returned that the goods were rescued while they were in his hands. It was argued for the defendant that a scire facias would not lie to charge him with the value at which he had returned the goods, except where he had returned that he had the money in his hands. But this argument

(9) 3 Exch. Rep. 527; s. c. 19 Law J. Rep. (N.S.) Exch. 185.

was overruled, because the sheriff by his return of the rescue had put the plaintiffs to the end of their suit. And in Clerk v. Withers (8), it is simply stated that the sheriff is answerable for the value of the goods after he has seized them, and is bound to the value he has returned them to be of. Both these cases arose upon scire facias, and involved questions different from the present one. I think they are no ground for saying that this case is an exception to the general rule. It is clear that no damage has been sustained by the plaintiff; that the bill of sale was bona fide and valid, and that the goods. were not available in satisfaction of the execution. It is true that the defendant did not interplead, but this fact cannot be relied upon to make him liable to the present action.

BLACKBURN, J.-I am of the same opinion. The rule is that an action will not lie against the sheriff for a false return, unless actual damage is proved, and therefore the present action would not be maintainable, unless the statement which the defendant made in his return is to conclude him contrary to the fact. If this be the law, the jury ought not to have found a verdict for the defendant. But then the question arises, how can the sheriff be concluded by this statement ? By the general rule, a man's statement, though evidence against him, is not conclusive evidence, except as against a person who may have been induced by it to alter his condition. There are several cases which come within this last exception, and the law applicable to them is stated in Pickard v. Sears (10) and Freeman v. Cooke (11). But I do not see anything to bring the present case within the principle of those decisions. If the sheriff has said inaccurately in his return, "I had a right to seize goods in the possession of the judgment debtor," it may be that a scire facias will lie against him on the judgment, not so much because he is in the position of a person who is concluded from denying the truth of the return, as because he is in the position of one who has pleaded a false plea, and wants to

(10) 6 Ad. & E. 469.

(11) 2 Exch. Rep. 654; s. c. 18 Law J. Rep. (N.S.) Exch. 114.