buyers to purchase other quantities of the same tallow, made purchases of 150 tons and 200 tons respectively. When the time arrived for the delivery of the tallow, Simpson & Co. had failed, and the plaintiffs having contracted with them for several other purchases and sales of tallow before the time for performance, settled the whole of these transactions by setting off the sales against the purchases, and paying or securing the difference upon the whole of the contracts. The plaintiffs then, when the time arrived for the delivery of the tallow to the defendant, having purchased the requisite quantities, tendered the tallow in due time to the defendant, when tallow having fallen in price, and the defendant having ascertained that the tender was made by the plaintiffs and not by Simpson & Co. and Rayner, the sellers, repudiated the contract and refused to accept the tallow; whereupon the plaintiffs brought this action to recover 3621., the loss or difference in price which they had allowed to Simpson & Co. and Rayner. And the question is, whether they are entitled to recover. The defendant contends that by reason of the purchase by the plaintiff's of the tallow in different quantities from those which he had ordered, he would have had no right of action against the sellers if they, had failed to perform the contract, and that there was, in fact, no privity between him and them, and that the plaintiffs not having effected these purchases according to the duty and practice of brokers, he is not bound by the contracts entered into, and which are not such as he authorised the plaintiffs to make, and therefore that the plaintiffs cannot maintain this action. The plaintiffs, however, rely upon the usage in the tallow trade in the City of London to the effect that a broker upon an order to purchase tallow, as in the present case, is entitled to contract for the purchase of the quantity required, together with other quantities for which he may have received orders from other parties, including the whole in one and the same contract of purchase; and, further, that he may settle with the sellers as before mentioned, and then enforce the performance of the contract with the purchaser suing in his own

name; he, however, being always personally liable under the usage for the performance of the contract with the buyer, as if he had himself been the seller of the tallow. The question for our consideration is, whether this usage is binding upon the defendant who is a merchant residing and trading at Liverpool, and not in London; and whether it is a reasonable custom, and so incorporated into the contract, as to be binding on the defendant, and to enable the plaintiffs to recover. The custom itself, as above set forth, is expressly found by the case, and the plaintiffs are found to have strictly conformed to the custom throughout these transactions; and I am of opinion that the custom is lawful and reasonable, and also that it is binding upon the defendant. It is true that this custom, as found, does not enable the defendant to enforce the performance of the contract by an action in his own name against the seller, but inasmuch as it may well be that from the nature of the tallow trade a broker may be often unable to effect a purchase of the specific quantity of tallow, neither more nor less, that a buyer may require, or to purchase it on terms as favourable to the buyer as upon the purchase of a larger quantity, I see nothing unreasonable in a custom which enables him, if he has several orders, to buy for different purchasers to execute them by purchasing of a seller a sufficient quantity to provide for the performance of all the contracts; he being himself by force of the custom personally liable to each of the buyers for the complete performance of each of the contracts. objected that the purchaser in such a case, if the broker becomes insolvent, being without the means of enforcing the contract against the seller, is deprived of the benefit of it altogether. But I think that the disadvantage to the defendant of being unable to sue the solvent seller upon the insolvency of the broker is rather apparent than real. For if such had been the state of things in this case, and supposing the price of tallow to have risen, in which case only the defendant could have been interested in suing Simpson & Co., I am of opinion that he might have sued in the name of the plaintiffs, and the value of the 150 tons of tallow would have been

It is

recovered by the plaintiffs or in their name in trust for the defendant as to 50 tons, and for the purchaser of the 100 tons as to the remainder. And if the defendant's order and the plaintiffs' note of the contract had been so expanded as to embrace all these contingencies and to provide for them, there would have been no departure from the real intention of the parties, either as to the contract itself, or the mode of carrying it into effect. The direct operation of a custom upon any contract, and indeed the very essence of a custom, inasmuch as it is supposed to be known to both parties, is to make it as much a part of the contract itself, as if it had been expressly recited or stated in it. If the contract here to all that it contains had added the words hereafter following, it appears to me that the contract would have been reasonable and just to all parties, and that which, if the parties knew of the custom they must actually have intended-" it is hereby agreed that the broker may purchase of the seller any larger quantity of tallow than 50 tons, in order to supply other contracting parties, provided that the buyer shall, if he thinks fit, be at liberty to sue the seller in the name of the broker, and that the broker hereby guarantees the performance of the contract by the seller." As to the objection that the broker in fact becomes the seller, I need say no more than that he becomes so only to the same extent as in the common case of a broker guaranteeing the performance of the contract by the seller. If all parties remain solvent, no difficulty arises. If the broker becomes insolvent, the remedy above pointed out is open to the buyer. If the seller become insolvent, as here, the broker must perform the contract with the buyer. Why should the buyer in either case escape the performance of the contract as against the one party or the other? So I think that the defendant upon authority as well as on principle, although carrying on business at Liverpool, must be taken to have known, or if not, that he must be content to be bound by the custom of the tallow trade in London, if he think fit to instruct a broker there to effect a purchase on his behalf. The custom in London is universal, and the broker as before ob

Parliament-Borough Vote-Successive Occupation-30 & 31 Vict. c. 102. ss. 3, 26 -2 Will. 4. c. 45. 8. 28.

A claim to be registered as parliamentary voter for a borough, under 30 § 31 Vict. c. 102. ss. 3, 26, as an inhabitant occupier of two houses in succession, is good, although, as respects the second house, the landlord is the person rated, and by his agreement with the claimant has paid the rates.

This was a case stated by the revising barrister for the borough of Bath, raising the question whether, where a claim is made as inhabitant occupier of two houses in succession, under 30 & 31 Vict. c. 102. ss. 3, 26, it is sufficient that the landlord of the second house should be rated and pay the rates by agreement with the occupier. The barrister had disallowed the cl im. The facts of the case are so fully stated in the judgment, that it is unnecessary to set them out.

Saunders, for the appellant. - By 2 Will. 4. c. 45. s. 28, it was provided that the premises, the occupation whereof entitled a man to vote, might be different premises occupied in immediate succes

sion, he having paid all the poor-rates and taxes become payable by him before a certain day, and in Rogers v. Lewis (1) it was held that, if he paid, it was sufficient, and that it was not necessary that he should be rated. Then came 30 & 31 Vict. c. 102, giving by s. 3 a qualification requiring rating, and by s. 26 allowing different premises occupied in immediate succession to have the same effect in qualifying "as continued occupation of the same premises in the manner herein provided." Either this last section refers only to the occupation, so that if the occupation of these premises satisfies s. 3, it is sufficient; or at least s. 28 of the previous Act is incorporated (for by s. 59 of the latter Act, the two Acts are to be construed as one, as far as is consistent) and consequently Rogers v. Lewis (1) applies, and payment of rates is enough. And here there was payment, for payment by the landlord was payment by the tenant; and even if this be not so, the point as to non-payment was not taken.

Gorst, for the respondent.-The franchise claimed is founded on the occupation qualification in s. 3 of the new Act, and the meaning of s. 26, as applied to the present case, is that the conditions of the occupation franchise given by s. 3, must be fulfilled as to each house (excepting, of course, the duration of occupation for twelve months); and therefore, as one of these conditions is that there should be rating, payment alone is not sufficient. As respects what has been said as to the old Act, and the case of Rogers v. Lewis (1), in the first place, the reasoning used there does not apply, as the Act in terms provided that payment should be enough; and in the second place, the section is not incorporated with the new Act, so as to touch s. 26, as the two incorporating sections, ss. 56, 59, use the words, "but subject to the provisions of this Act," and "so far as is consistent with the tenour thereof;" and to thus incorporate it would be adverse to the provisions and inconsistent with the tenour of the new Act.

Cur, adv. vult.

(1) 7 Com. B. Rep. N.S. 29; s. c. 29 Law J. Rep. (N.S.) C.P. 85.

The judgment of the Court (2) was (on Feb. 9) delivered by

BRETT, J.-In this case Thomas Moger claimed to have his name inserted in the list of voters for the city and borough of Bath. His name appeared upon the list of claimants as an occupier of a house, 7, Taylor's Court, in immediate succession to his occupation of a house, 13 Paradise Street. It was proved that the claimant had occupied 13 Paradise Street for a long time previous to and up to July, 1871, at a rent of 61. per annum, and that he was duly rated to all poorrates made during the time of such occupation, and had paid all rates payable by him in respect of the premises during such occupation. In February, 1871, the claimant moved direct into and occupied 7 Taylor's Court, for which he agreed to pay an annual rent of 81., his landlord agreeing to pay the rates. A poor-rate was made in April, 1871, in which the claimant's name did not apear; he did not claim to be rated; he was not entitled to the benefit of s. 19 of the Poor Rate Assessment and Collection Act, 1869; but all rates payable in respect of 7 Taylor's Court were, previous to the 20th of July, 1871, paid by his landlord. The revising barrister disallowed the claim. It was contended on behalf of the claimant that this decision was erroneous; that it was not necessary that the claimant should be rated in respect of the second house, if he paid all rates payable in respect of it; and that he had, by the hands of his landlord, paid all such rates. It was contended on behalf of the respondent that, according to sections 3 and 26 of the Representation of the People Act, 1867, it was necessary, in order to entitle the claimant to be registered, that he should not only have paid all rates payable in respect of the second house held in immediate succession, but that he should also have been rated to such rates; and further, that the claimant had not paid in this case the rates payable in respect of the second house. As to the first point, inasmuch as both houses occupied by the claimant were below the annual value of 10., the question is, whether

(2) Willes, J.; Byles, J., and Brett, J.

s. 26 of the Act of 1867 deprives the occupier of a house in immediate succession within the year, and which house is of a less value than 107. a year, of the privilege contained in the proviso to s. 28 of 2 Will. 4. c. 45, as interpreted in Rogers v. Lewis (1). According to that proviso, as interpreted by that case, it is sufficient for such an occupier to have paid all rates due in respect of the second house, though he be not rated in respect of such house, if he has been rated in respect of and has paid all rates due in respect of the first house. Now, by s. 3 of the Act of 1867, the inhabitant occupier of a dwellinghouse, in order to entitle himself to be registered, must have occupied it, i. e., the one dwelling-house, for twelve months, &c.; and must have been rated in respect of it, and must have paid all rates payable in respect of it. Section 26 deals with one only of these conditions, namely, that of the occupation, and enacts that the occupation of different premises in immediate succession shall have the same effect as a continual occupation of the same premises. Then are added the words, "in the manner herein provided." These words might at first sight seem to refer to an occupation accompanied by a being rated and a payment of rates. But these conditions are not the manner of the occupation; they are other conditions required to be fulfilled, when the claimant has satisfied the condition as to occupation. These words seem to refer to the necessity of a separate as distinguished from a joint occupier. Section 26, therefore, does not interfere with any obligation or any privilege attaching to the questions of being rated and of the payment of rates. Those obligations and privileges are regulated by other enactments. By sections 3 and 26, if there were no other enactments applicable, it would seem that the occupier of two houses in immediate succession, claiming to be registered in virtue of the qualification contained in the Act of 1867, must have been rated, and must have paid the rates in respect of both houses. But by sections 56 and 59 of the Act of 1867, the proviso in s. 28 of the 2 Will. 4. c. 45 is applicable to the case of houses occupied in immediate succession, according to the Act of

1867, unless it be inconsistent with s. 26 of the new Act. According to the interpretation we have given s. 26 of the new Act, with reference to s. 3 of the same, there is no inconsistency between it and the proviso in s. 28 of the old Act. It follows that the proviso is applicable to the cases of occupation in immediate succession under the new Act, and that in such cases the occupier may be registered, if he has been rated and has paid all rates in respect of the first house, and has paid all rates payable in respect of the second house, though he has not been rated in respect of it. The reason given in Rogers v. Lewis (1) for the distinction between the first and second houses is as applicable in the cases of successive occupation under the new as under the old Act.

The second point is, whether the claimant can be said to have paid the rates payable in respect of the second house. He has not paid them with his own hand. He has not been released from payment. Nor can he be deemed to have paid by virtue of the Poor Rate Amendment and Collection Act, 1869. The question is, whether, without recourse to that or any other statute, he can be said to have legally paid the rates. We are of opinion that it can properly be said that he has legally paid the rates. By virtue of the agreement between him and his landlord, the actual payment of the rates by the landlord in this case is a legal payment by the tenant-Cook v. Luckett (3).

We are of opinion in the result that the claimant was entitled to be registered, and that the decision of the revising barrister was wrong, and must be reversed, and the claimant's name must be inserted in the register.

Decision reversed.

Attorneys-Rogerson & Ford, agents for John Ricketts, Bath, for appellant; Maule & Robertson, Bath, for respondent.

(3) 2 Com B. Rep. 168; s. c. 15 Law J. Rep. (N.s.) C.P. 78.

The defendant, a tenant, prepaid his rent to L, his landlord, who afterwards mortgaged his reversion to the plaintiff; one B. brought ejectment against the defendant as being entitled under a mortgage previous to the tenancy, but nothing came of it; the plaintiff wrote to the defendant saying B. no longer had any title, and asking for the rent; the defendant answered, saying he did not understand the application, and asking for particulars; no reply was made, but subsequently the action was brought for the rent :—Held, that though the plaintiff could not recover rent prepaid and accruing due before his letter, yet that there was a sufficient notice within 4 Anne, c. 16. s. 10, and he was entitled to recover rent paid before but accruing due after the letter.

This was an action to recover 1377. 10s. as two and a half year's rent, due Christmas, 1867.

It appeared at the trial that by an agreement dated the 7th of July, 1864, one Lamb let a house to the defendant at a rent of 551. per annum (from the 24th of June then past), payable quarterly, finally, however, agreed to be 501.; that on the 18th of July, 1864, the defendant paid Lamb 1501., and on the 3rd of March, 1865, paid him 701. as rent in advance; that on the 15th of September, 1865, Lamb mortgaged the house to the plaintiff, and in August, 1866, gave him a further mortgage; that in May, 1866, one Banchini, who claimed under a mortgage made by Lamb in 1858, by Carpenter, his attorney, brought ejectment against the defendant, but the matter was not pressed; that on the 1st of November, 1866, the plaintiff wrote to the defendant saying Carpenter had written to say his client was no longer entitled to the rent, and requesting payment thereof; that on the 2nd of November, 1866, the defendant's solicitors answered, saying they and he did not understand the application, NEW SERIES, 41.-C.P.

and asking for particulars; and that there was no reply but this action, commenced on the 13th of March, 1868. A verdict was found for the plaintiff for the full amount, with leave to the defendant to move to enter a verdict for him, or reduce the amount, and a rule nisi was granted accordingly.

Montagu Chambers and Gibbons shewed cause. The plaintiff is entitled to recover the rent from the time of assignment, because when the lessor has assigned he has no power to discharge the lessee when the proper time for payment comes; before the proper time for payment comes the advance payment is not a payment of rent under the contract, but is a loan, and this loan can only be converted into a payment of rent on the proper day, because the lessor then is in a position to discharge the lessee and give it the character of rent paid; but if his power be gone, the payment remains merely a loan to him, the rent is unpaid, and the notice requisite under 4 Anne, c. 16. s. 10 does not apply; and the assignee of the lessor is entitled to recover all prepaid rent accruing due after the assignment. And the case of De Nicols v. Saunders (1) is not only consistent with but supports this contention. Secondly, but at all events the rent accruing due after the 1st of November, 1866, is recoverable, as there was a proper notice under 4 Anne, c. 16. s. 10.

[WILLES, J.-The money paid which was due before the alleged notice at least cannot be recovered.]

W. Paterson, in support of the rule.That being so, the only question is as to the sufficiency of the notice. It is submitted that there was no such notice that the reversion had been assigned to the plaintiff as is required by the statute, and on the contrary the natural conclusion would be that the plaintiff was assignee of Banchini, and only entitled, if anything, to eject, not to recover the rent. That this was really the impression is shewn by a subsequent letter; further, though the defendant writes to say he does not understand and asks for an explanation, no answer is given, and no steps are taken till

(1) 39 Law J. Rep. (N.s.) C.P. 297. N