1858. SMITH V. M'GUIRE. his brother, he came to reside in London, and left the business in Limerick to be carried on by his brother Martin. The defendant's name was over the door, and it was generally known that the business was his and that his brother Martin was acting for him. During the present year he had bought upwards of 30,000 quarters of oats, and during three years he had chartered upwards of sixty ships, through the agency of his brother. In this state of things, Martin having been acting for upwards of three years, a ship, belonging to a person in London, was in Limerick, about to proceed to Quebec and bring home a cargo of timber. Thereupon the shipbrokers at Limerick negociated the charter of the ship to bring a cargo of oats from Limerick to London on her return from Quebec. The charter-party was executed by Martin M'Guire "per procuration" of Thomas M'Guire; and the question is, what is the proper mode in which the case should be left to the jury? I am by no means certain that a person who employs an agent, in the way in which Martin M'Guire was employed, is not liable for every honest contract entered into by him for the purpose of the business in which he is engaged. The only question for the jury was whether this particular contract was fairly within the scope of his authority. Then, can it make any difference as to the mode in which the question is to be left to the jury, that on previous occasions Martin M'Guire had chartered the ships after he had received instructions from the defendant? In my judgment not the slightest. If a person is employed as a general agent, in the way Martin M'Guire was employed, so far as the public are concerned he is the person carrying on the business, and any private instructions given by the principal are quite immaterial. As to the procuration the matter is plain. It is true that Martin M'Guire was only the agent of the defendant, whose name was over the door, and he signed the charter per procuration;" but that was only saying the truth, that he was agent, and so acted by procuration. The case of Alexander v. Mackenzie is quite right under the circumstances. Every case of this kind must depend on the nature of the contract and the condition of the person who makes it. In my judgment Martin M'Guire was a general agent, and notwithstanding he had received on previous occasions special directions as to chartering ships, the defendant is bound by all contracts made by him in the ordinary way of trade within the scope of his authority as such agent. With respect to the damages, I entertain the same opinion that I expressed at the trial. The proper mode of assessing them would be to take the damage actually proved. The plaintiff was compelled to give particulars of damage, and, as frequently happens in such case, he gave particulars of the damage which he had actually sustained, but which, when investigated, turned out not to be the legal damage arising from the breach of contract. In my judgment neither the 681. 8s. 9d. or 1227. 17s. are correct items of damage. The real damage is the loss arising from the breach of contract? That is to be ascertained by calculation of the freight to be earned, and deduction of the expenses which the shipowner would be put to in earning it; and what the ship earned (if anything) during the period which would have been occupied in performing the voyage, ought also to be deducted. It may be doubtful whether a party who breaks a contract has a right to say "I will not pay you the damage arising from my breach of contract, because you ought to have done something for the purpose of relieving me." I am not prepared to say that a shipowner, who has lost his freight by reason of a breach of contract by the charterer, is bound to go and look for employment for his ship so as to relieve the charterer from the consequences. On that point however it is not necessary to give an opinion. 1858. SMITH M-GUIRE 1858. SMITH v. M'GUIRE. The jury have found the damages as claimed by the plaintiff in his particulars. It would be better for both parties to agree as to the amount, each yielding something of what he supposes to be his rights for the purpose of ending the matter; if not, there must be a new trial. (a) The parties then agreed that the rule for a new trial should be discharged, the da Rule accordingly (a). mages to be reduced to 100%. May 29. In an action for an injury to LUSH, the plaintiff by the careless driving of a defendants, the Court refused to WICKS V. MACNAMARA and Others. on behalf of the defendants, applied for a rule for particulars. This was an action against the defendants servant of the for an injury to the plaintiff, who had been thrown out of his cart in consequence of a collision with an omnibus driven by a servant of the defendants. The affidavits stated that the defendants had no means of knowing what the injury done to the plaintiff was except from the declaration, which was not sufficient to enable them to form any estimate of opinion as to the alleged injury. Channell, B., at Chambers, had refused to make an order. make an order for particulars of the injury sustained by the plaintiff. Lush, in support of his application (May 25).—The defendants have no means of knowing what is the plaintiff's case unless they get the information required. [Bramwell, B. -The defendants know who the plaintiff is, and the occasion on which he was injured. But it seems unfair to withhold the information sought. Watson, B.-Perhaps the plaintiff does not yet know the extent of the injury that he has sustained.] R. N. Philipps shewed cause in the first instance.-The declaration in an action of this kind sufficiently discloses the nature of the plaintiff's demand. In Stannard v. Ullithorne (a), which was an action on the case against an attorney, for negligence in transacting the assignment of a leasehold belonging to the plaintiff, by reason whereof the plaintiff had to pay damages to the assignee, the Court refused to order the delivery of particulars. [Pollock, C. B.— That case occurred many years ago: latterly the current of decision has been, that a plaintiff ought to give every information respecting his claim.] Cur. adv. vult. POLLOCK, C. B., now said.-There will be no rule. The practice has always been in accordance with the decision of my brother Channell. And unless there are grave reasons for departing from it, the practice should be adhered to; though no doubt there may be considerable inconvenience in not giving particulars in cases when a tort might resolve itself into a mere money claim. MARTIN, B.-The case must not be understood as laying down any general rule. The Judge at Chambers has a discretion, and if in the present case he had made an order, perhaps we should not have interfered. BRAMWELL, B., and WATSON, B., concurred. 1858. WICKS v. MACNAMARA. (a) 3 Bing. N. C. 326. Rule refused (b). (b) See per Martin, B., Smith v. M'Guire, antè, p. 567. 1 1858. May 29. STANDEVEN v. MURGATROYD. After public MANISTY, for the defendant, moved for a rule to shew notice that common jury causes in London would be taken on was issued that they would be taken on the 16th. A cause, in which the plaintiff, his attorney and witnesses, resided in the country at a great distance from London, having been put in the list for the 15th, was called on cause why the Master should not review his taxation of the plaintiff's costs. An arrangement had been made and notice issued that common jury causes, at the sittings in London after Hilary Term, would be taken on 18th of February. On the 12th of February, in consequence of the small number of special jury causes, a fresh notice was issued and posted up at the Associate's office, that common jury causes would be taken on Tuesday the 16th; and on the same day the defendant's agent in London wrote to the country attorney to that effect. On Monday the 15th the cause was in the list for the day. It was called on about 11 o'clock when the defendant and all his witnesses were ready; but the plaintiff's witnesses, who resided in Yorkshire, were not in attendance. The plaintiff's counsel applied to have the cause postponed. The learned Judge, Martin, B., ordered the cause to be placed at the bottom of the list for the day. In the afternoon the cause again came on in its order, but the plaintiff's witnesses had not arrived. The cause was then referred, the costs to abide the event, to an arbitrator, who ultimately made his award in favour of the plaintiff. The witnesses arrived in the evening after the Court rose. On taxation, the liberty to allow Master allowed as costs in the cause the expenses of these the plaintiff the witnesses. in its turn, and the witnesses not being in attendance was referred. The witnesses arrived in the evening after the Court had risen. The arbitrator having awarded in favour of the plaintiff Held, that, on taxation, the Master was at costs of his witnesses as costs in the cause. Manisty, in support of the application.-The plaintiff is not entitled to the expenses of witnesses who had not |