and he thought there was an error in that advice. His lordship then proceeded to deliver the judgment he had formed after consulting the best authorities. To a certain extent the rule that the Attorney-General could receive no costs was necessary, in order to protect parties opposed to him as a suitor from injustice. In a suit in which the Attorney-General, if he had been a private individual, would have been compelled to pay costs, nothing would be more unjust than that he should, under any circumstances, be entitled to receive costs. In such a case, therefore, and to such an extent, the court adopted the rule. This, however, was not a case of that description, and did not fall within the rule so adopted. The party in possession of a judgment was never made to pay costs. Having got the judgment, he was entitled to defend it; and although the court upon rehearing, or upon hearing exceptions to the Master's report, which was the same thing, might be of opinion that the judgment was not right, and therefore alter it, the party who merely supported what a court of competent jurisdiction had already determined, was never made to pay costs in that contest. Here the Attorney-General was in possession of the Master's report. The defendants complained of that report. The Master of the Rolls was of opinion that there was no ground for that complaint, and gave the costs of upholding the judgment. The Attorney-General could not have been made to pay costs, and therefore his position as to costs was no grievance to the defendant upon appeal. The appeal was therefore dismissed generally, including the question of costs.

The practical conclusion from this judgment will be best expressed in the words with which Lord Cottenham concluded:"I have consulted with the best authorities upon the subject, and we are all of opinion that it would be well to consider, not as a rule without exception (because it is always matter of discussion to a certain extent), but as a general rule, that the principle that the Attorney-General never receives nor pays costs, may be modified in this way, namely, that the Attorney-General never receives costs in a contest in which he could have been called upon to pay them, had he been a private individual. That would give all the protection to the suitor opposed to the Attorney-General, which is in justice due to him, and at the same time discourage what, I think, is too often the case, namely, carrying on an unnecessary litigation in consequence of the rule."

COMMON LAW.

STATUTE OF LIMITATIONS-PART PAYMENT-PROOF OF BY ADMISSION OF DEBTOR-9 GEO. 4, c. 14.

Cleave v. Jones (in error), 20 Law Journ. Exch. 238.

FROM the passing of the Statute of Frauds until the 9 Geo. IV. c. 14, a debt, of what magnitude soever, might have been taken out of the operation of the Statute of Limitations, by evidence of a nature wholly insufficient to fix a defendant with it originally if above a certain sum. A mere verbal acknowledgment or promise given in evidence as having been made by the debtor, was enough to make him liable for a debt, the recovery of which was barred by the lapse of time; and thereby in those very cases in which the Statute of Limitations was most likely to be an honest defence, its beneficial effects were liable to be defeated by false swearing, of a class the most difficult to expose or punish, and the most impossible to rebut. Lord Tenterden's Act, however, rendered it necessary that the promise or acknowledgment should be in writing and signed by the debtor, and so remedied the evil; at the same time it expressly professed to leave untouched the third way of defeating the effect of the Statute of Limitations on a debt, viz. by proving a payment on

account.

Now it never was doubtful on the construction of this statute, but that independent proof of a payment by the debtor on account within six years would revive a debt; but where the only evidence of the payment on account was a verbal acknowledgment of that fact by the debtor, it was held, in Willis v. Newham (3 You. & J. 518), that such evidence was excluded by the statute; and this decision has hitherto been followed, doubtingly, indeed, and sometimes with great reluctance. At length a prediction in Mr. Smith's Leading Cases (vol. i. 321b), that its doctrine would not stand the test of a writ of error has been verified by the present case, in which a memorandum of payment of interest within six years in the debtor's handwriting (unsigned, and therefore a mere parol acknowledgment) has been held to be clearly evidence of the fact of payment. Lord Campbell, C. J., after observing that the preamble of the 9 Geo. IV. c. 14, points to the proof and effect of acknowledgments and promises, states the three methods of reviving a debt, and also the express enactment as to two of them, and the express exception of the third, and forcibly deduces from thence that "the effect and proof of payment on account is left exactly

as it was before the statute passed." Willis v. Newham seems to have been founded on the notion that the word " acknowledgment" in the statute was applicable to an acknowledgment by a debtor of a payment by himself on account, which, however, as remarked by Maule, J., would be rather in the nature of a boast than in that of an admission.

MERCANTILE LAW-BILL OF LADING-ITS EFFECT WHEN SIGNED BY MASTER FOR Goods Never SHIPPED.

Grant v. Norway, 20 Law J. C. P. 93.

A POINT of some importance with respect to the nature of a bill of lading was decided for the first time in the present case. It had been mooted, indeed, in the case of Berkeley v. Watling (7 Ad. & Ell. 29), but not settled, although Mr. Justice Littledale expressed an opinion in conformity with the present decision. In some respects similar in its nature to a bill of exchange, especially in its sometimes transferring to a bonâ fide indorsee a better right than his indorser himself had, as the law has been ever since Lickbarrow v. Mason, yet is a bill of lading in others very different. Both, indeed, represent property, and pass it by indorsement, but one transfers the contract itself, the other does not. A person who takes a bill of exchange bonâ fide, takes it with the assurance that the acceptor is bound by the sum it is expressed to be drawn for; but for the indorsee of a bill of lading, it will be necessary to ascertain that the goods in respect of which it is given are actually shipped, in order to give him a remedy against the owners of the ship.

The facts here stand thus: the master of a ship belonging to the defendants signed a bill of lading in the usual form, for goods which were to be shipped in pursuance of a charterparty between B. & Co. and the defendants, but which in fact. never were shipped. B. & Co. deposited the bill of lading with the plaintiffs as security for the payment of a bill of exchange, which they thereby persuaded the plaintiffs to give cash for, and which was afterwards dishonoured; and thereupon the question arose, whether the master was the agent of the defendants, authorized to sign a bill of lading under such circumstances. It was held that, with respect to goods put on board, the master of a ship had a general authority to sign a bill of lading, conclusive upon the owners, as to the nature, quality and condition of the goods, which general authority could not be so restricted in particular instances as to affect third parties having no notice

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of the restriction, in favour of whom it will be implied that he had authority to do all that is usual in the management of a ship. But is it usual," asks Jervis, C. J., in delivering judgment, "in the management of a ship carrying goods on freight, for the master to give a bill of lading for goods not put on board? The very nature of a bill of lading shows that it ought not to be issued until goods are on board, for it begins by describing them as shipped." Thus is the question disposed of according to the general principles of the law of principal and agent. A parallel is drawn in the judgment between the case of a bill of exchange accepted or indorsed by procuration, in which case the person taking the bill has notice of a limited authority, and should see that the agent has as much as he professes to have, for the existence of such authority must be proved to enable him to recover. So, in the case of a bill of lading, general usage affects an indorsee with notice of an authority to sign, limited to goods on board; and if a more ample authority exist in a particular case, it must be shown in evidence. If the effect of this decision be to relieve shipowners from being bound by all bills of lading which their captains might fraudulently sign, on the other hand it throws much difficulty in the way of those who take bills of lading relying on the transfer of the property of the goods specified in them, and who, as they must know less of masters than the owners, who engage them, will be cautious of accepting bills of lading as valuable securities, without assurance of a special authority.

PLEADING-SET OFF-DISTRIBUTIVE REPLICATION.

Mead v. Bashford, 20 Law J. (N. S.) Exch. 190.

THE Common Law Commissioners in their Report, which has just been published, observe (p. 20), "that the excessive precision required" [to escape a special demurrer] "is scarcely practicable, except in pleadings of well-known character and daily occurrence, in which, former generations of suitors having paid costs for the settlement of the law, the pleadings have become easy and intelligible. The general plea of set-off in the actions of assumpsit and debt falls so well within this description, that one would think that in a case, which is exceedingly common, of a set-off being made up of items to which the plaintiff has various answers, he would, by this time, have been easily, and without any risk, able to avail himself in pleading of his various answers. Yet several very late cases (of which the present is one) are to be found in the Reports, in which plaintiffs, in proceeding

along this not yet sufficiently beaten path (?), have been tripped up by a special demurrer. In truth, simple as it may appear, there really is some little difficulty. In the first place it was necessary to take an accurate view of the meaning of a plea of set-off. It asserts in effect, that the plaintiff was, when the writ issued, in the defendant's debt to an amount at least equal to the balance left unanswered by the other defences (see Tuck v. Tuck, 5 M. & W. 109; Spradbery v. Gillam, 20 Law J. Exch. 237); should the defendant, therefore, prove but a shilling short of that amount, the plaintiff has a verdict upon that issue, but so much as the defendant can prove is allowed him in reduction of damages. It thus becomes important to plaintiffs not merely to answer any part of the set-off, whereby alone, indeed, they would succeed, but to negative, if they can, every part of the set-off; and if they can do so by one replication, as "nil debet" to the whole plea, no difficulty occurs. But if part of the set-off is barred by the Statute of Limitations, and part has been paid, or otherwise satisfied, it becomes no longer so easy. "At present," says the learned counsel for the plaintiff in this case, "it is impossible to say what the right form of replication is where there are different answers to different parts of the set-off." The plaintiff can plead but one replication; neither must it be double: the consequence is, that if he reply separately various matters to different parts of the plea, no one of his answers alone must meet the whole plea. This was the fault committed in the present replication, which was-to so much of the plea as related to one parcel of the demand, the Statute of Limitations; and to so much of the plea as related to the residue of the demand, " nil debet." It was, perhaps, an attempt to escape from another replication, viz., to parcel of the plea, the statute; to the residue, "nil debet," which at first seems obviously the way to reply, but which has been declared bad, because "nil debet," or " nunquam indebitatus," to the residue, being a traverse of the debt modo et formâ, involves a denial by the plaintiff of what was not affirmed by the defendant, that the residue equalled (or exceeded) the plaintiff's demand. According to this case, and Fairthorne v. Donald (13 M. & W. 424), the proper replication would have been that part of the set-off was barred by the statute, and that the plaintiff was not indebted to the defendant in any sum which, with the part so barred, equalled the amount of his demand. Altogether, it is impossible not to feel that there is much subtlety-more, perhaps, than justice requires-in all this. Tricky pleas are pleaded on purpose to demur, as in Nutt v. Rust (19 Law J., Exch. 54). In the present case, too, the court was not unanimous. Alderson, B., in delivering judgment,