470 New Bills in Parliament.-Professional Grievances.—The Privilege Question.

4. Clerks, &c. to be appointed by Judge, subject to approval of Lord High Admiral. 5. Retiring pension to Judge of 2,0007. 6. Salaries and annuities, how to be paid. 7. Office of registrar not executed by deputy. 8. Appointment of deputy registrar in case of illness, &c.

9. Judge of Admiralty may direct the appointment of an assistant registrar; his salary. 10. Her Majesty may alter table of fees. 11. Registrar to account annually for fees received by him.

12. Fees to be carried to fee fund.

13. Surplus to be paid to the Consolidated Fund.

14. Judge and registrar to receive no fees on their own account.

15. Accounts may be referred to Judge of Court of Admiralty or Dean of Arches. 16. Act may be amended.

PROFESSIONAL GRIEVANCES.

THE MIDDLESX REGISTRY OF DEEDS.

To the Editor of the Legal Observer. Sir, You have rendered a very great service to the profession by calling attention to the state of the Middlesex Register Office; but there is one point which you have not noticed, and that is the want of due accommodation. It must be evident to any one, that a person making a minute and laborious search, cannot do it with comfort to himself, or satisfaction to his client, unless the office be sufficiently large and sufficiently lighted. Now, I ask any one who has had the misfortune to make a search at the Middlesex office, whether there is the one or the other?

Again, the indexes are kept in a very imperfect manner, and the memorials are written in books so large and heavy that it almost requires a drayman to move them. You will I hope, follow up this subject, and complete the good work you have begun.

ONE WHO HAS SEARCHED THE MIDDLESEX
REGISTRY.

THE PRIVILEGE QUESTION.

A PETITION, signed by twenty-one attorneys and solicitors practising in the metropolis, was presented to the House of Commons by the Attorney General, in the latter part of March last, stating

That in the opinion of your petitioners, it is the duty of your Honourable House to inquire into, and in concurrence with the other branches of the legislature, to apply where practicable, a remedy for any abuse to which its attention is called.

That in making such inquiries, it must oc

casionally happen that facts discreditable to individuals be ascertained, which it would be highly improper for unauthorised individuals to publish, but which may be highly necessary to be communicated to your Honourable House as the foundation for legislative interference.

That the people cannot judge of the propriety of your acts, if ignorant of the facts on which your proceedings are grounded, and they are entitled to have those facts published to them, that knowing them they may be the better enabled to instruct their representatives on the proceedings founded upon such facts.

That the most convenient way of making known those facts is by publication, in the mode now pursued by your Honourable House.

That the words "published by order of the House of Commons," is a sufficient notice that such publication is privileged.

That your Honourable House cannot fully exercise the privilege of printing and publishing, unless they can protect their officers acting in obedience to their orders in making such publication.

That to take any step in contravention of such orders, is a contempt of your Honourable House.

That your Honourable House representing the people is responsible for the people for the due exercise of its functions, and such responsibility is a sufficient guarantee against the abuse of its powers, or the refusal of redress in cases where injury may chance to be unjustly sustained.

That the power of your Honourable House to commit for contempt, is established by the recent decision of the Court of Queen's Bench, on the application of the sheriffs of Middlesex for a habeas corpus.

That in the recent conduct of Mr. Howard, an attorney, committed to Newgate by your Honourable House for contempt, there were circumstances which your petitioners cannot approve, but they desire to express their opinions on this question, with reference to its general bearing and merits, abstracted from the conduct of any particular individuals.

That it is no defence or excuse for an attorney to allege that he acted by the orders of his client, for that he is bound to obey such orders only when they are lawful.

That such an excuse would never be admitted by any Court in Westminster Hall.

That entertaining as we do the most unbounded respect for the laws of our country, tered, and satisfied that the decisions of such and the tribunals by which they are administribunals are looked to with implicit confidence by the great body of the people, your petitioners deeply lament that a difference should have arisen between your Honourable House and the Court of Queen's Bench as to the respective powers of each, and we rejoice that a bill has been introduced into your Honourable House with a view to terminate such differ

ences.

That it appears to your petitioners, that some legislative measure is also required to

The Privilege Question.-Superior Courts: Lord Chancellor's Court.

enable your Honourable House more effectually to exercise your privileges, and to protect them during the recess of Parliament.

That your petitioners, differing, as they fear they do, on the subject matter of this petition, from a great majority of their professional brethren, are, nevertheless, desirous in a case so materially affecting their profession, and the conduct which they themselves may be called on to pursue, to submit these their sentiments to your Honourable House.

Your petitioners humbly pray, that the bill lately introduced into your Honourable House to regulate the publication of parliamentary papers, may pass into a law.

And your petitioners will ever pray, &c.

472

Superior Courts: Lord Chancellor's Court; Queen's Bench.

were applicable to it. He agreed with the
Master of the Rolls that suits for the same
thing should not be allowed to proceed in two
Courts; and whether such proceedings were
had in this and any other Court in this country,
or in this Court and in a foreign Court, the
principle was the same; and it was that no
party should be doubly vexed on the same
account. If circumstances should at any time
exist, forming an exception to the rule, the
proper course would be to apply for the per-
mission of this Court. In the present case
there was a decree for an account in the course
of prosecution before the Master, to ascertain
certain balances between the parties, and some
of the defendants were residing out of the
jurisdiction, and they had landed property
within the foreign jurisdiction, within which
they themselves resided, and by certain pro-
ceedings in the foreign Court measures might
be taken to render that property an available
security for satisfying any demand the plaintiffs
might establish against the defendants. It
might be, that when the accounts in the suit
here should be taken, and the balance, if any,
found in favour of the plaintiffs, there might
be no defendant, or no property of the defen-
dants within the jurisdiction to answer the
debt, in which event the plaintiffs would have
to institute a suit in Scotland to compel pay-
ment there. Under such circumstances, while
this Court was administering equity to a party
by protecting him from being doubly vexed
with suits in different Courts for the same
thing, it was proper to consider whether a
plaintiff should be prevented from pursuing
his demand in a foreign Court. To prevent a
plaintiff under all circumstances from doing
so, might be doing him great injustice, under
colour of doing justice to a defendant. It was
said that the action brought by these plaintiffs
in the foreign Court was not in its nature a
suit for establishing their demand. If it was
merely to provide security for a possible de-a
mand, without going farther, it was hard to
say what was the defendants' ground of com-
plaint of being doubly vexed. The plaintiffs
would not proceed beyond a certain stage in
the suit unless the defendants pressed them on;
and if they so pressed the plaintiffs, they could
not then complain of their own act. Under
all the circumstances, his Lordship would al-
low the actions in Scotland to proceed to the
extent of establishing a security there for the
result of the accounts here; but how that was
to be done, was to be left to the rules of prac-
tice of the Courts in Scotland.

Wedderburn v. Wedderburn, Sittings at Lincoln's Inn, February 29th, and March 4th, 1840.

Queen's Bench.
[Before the Four Judges.]

PRINCIPAL AND AGENT.-EVIDENCE.

Where A. hus for some time been acting as the general agent of B. in B.'s business, and has been in the habit of making contracts on his behalf, but B., after some disputes

between them, sends him express orders not to buy or sell on B.'s account beyond a certain limit, such restriction, if not known to the trade at large, will not affect the rights of a third person, with whom A. afterwards makes a contract exceeding the limits assigned him.

In such a case, evidence of a particular custom as to the trade, is not admissible to defeat the general rule of law, as to the liability of the principal for the acts of his agent. This was an action for the non performance of a contract, for the delivery of a quantity of Russian tallow. The plaintiffs were merchants in London: the defendant was a merchant in St. Petersburgh: and the contract in question was made in the month of April, 1835. It was made by a Mr. Woolmer, who acted as a broker for the plaintiffs, and by a Mr. Higginbottom, who was described as the general agent of the defendant in making sales of tallow, having been for some time employed by him in that character. The bought note was in this form: "Bought for Trueman & Co." so much tallow, and the note was signed by Woolmer. The sold note was: "Sold for Higginbottom to my principals," so much tallow, and this was also signed by Woolmer. The case was tried before Lord Denman at Guildhall, when the defence set up was, that the defendant had in March, 1835, given notice to Higginbottom not to act as defendant's general agent after the month of July in that year; that in the meantime he had been only authorized to sell 100 casks of tallow, and that the alleged sale to the plaintiffs, very largely exceeding that amount, had been made without proper authority. Evidence was also given to shew that the broker who acted for the plaintiffs had been informed of this notice, but, that he said he was quite satisfied with Mr. Higginbottom as the seller. Evidence of custom in the tallow trade for a party to.a contract to reject the principal and take the broker in his stead, was tendered, but the learned Judge refused to receive it. It was contended for the plaintiff in reply, that a private notice of this sort given in this case, restricting Higginbottom's power of selling, could not coun tervail a general agency, and that the contract having been made before public notice of the cessation of the connection between the house of the defendant and Mr. Higginbottom had been given, the defendant was bound to fulfil that contract. The jury returned a verdict, finding that the contract was in fact made by Higginbottom on his own behalf; but that Woolmer when dealing with him believed that it was made on behalf of the defendant. verdict was therefore entered for the plaintiff. A rule had since been obtained to set aside the verdict thus entered for the plaintiff, and to enter a verdict for the defendant or a nonsuit, on the ground that there was no proper contract within the statute of frauds &c., to fix the defendant, but that on the evidence in the case and on the face of the contract as shewn by the bought and sold notes, Higginbottom,

The

Superior Courts: Queen's Bench.

and not the defendant, must be treated as the principal, and also for a new trial, on the ground that the evidence of the custom in the trade had been improperly rejected.

The Attorney General, Sir W. Follett, and Mr. Greenwood in last Michaelmas Term, shewed cause against the rule. The defendant must be bound here; for the general authority he had given to Higginbottom to act as his agent had not been publicly revoked, and no private restriction of it as between Higginbottom and the defendant can be allowed to affect the rights of third parties. All the authorities establish this principle, that where a man has once appointed an agent, and given that agent credit in the world, he must recal that appointment as publicly as he made it, or he will continue to be bound by the acts of the agent. Evidence of a supposed custom in a trade is not admissible in answer to a general principle of law.

Sir F. Pollock, Mr. Cresswell, and Mr. Richards, in support of the rule.-The fact found by the jury in this case is an answer to the present action. The only name on the bought and sold notes is that of Higginbottom. Now Siffkin v. Walker a established that where a promissory note appeared on the face of it to be the separate note of A., it could not be declared on as the joint note of A. and B., though given to secure a debt for which they were jointly liable. The rule there was adopted in Emly v. Lye, and the principle thus settled has always been recognised. It is clear, therefore, that here the broker must be taken to be the person with whom the contract was made. There is no evidence here to shew that the contract was binding on the defendant. The law will not allow that the person who appears, as Higginbottom does, on the face of the note to be the principal, may be shewn to be in fact only the broker. This instrument itself cannot be contradicted in this manner, but is decisive between the parties. Ea parte Bolitho, Bank of Scotland v. Watson. It cannot be said that in any contract of this sort Higginbottom necessarily meant Loder, merely because Higginbottom had had authority to act as agent for Loder. Suppose Higginbottom, instead of being agent for one, had been agent for six Russian houses, how would the question have been decided as to the parties for whom he sold? Why, of course, by the terms of the bought and sold notes. Now on the face of them, he was the contracting party. It is quite clear that evidence of the custom in the tallow trade was admissible, and ought to have been received; for the contract was made with reference to that custom.

Lord Denman, C.J.-There were two points in this case on which the defendant sought to relieve himself from the verdict which had been given against him for refusing to deliver to the plaintiffs a quantity of tallow, according to a contract said to have been entered

473

into by his agent on his behalf in the month of April, 1835. The plea was non assumpsit. The first objection on the part of the defendant was, that there was not proper evidence of the contract under the statute of frauds. The second was the alleged improper rejection of evidence.

This was an action to recover damages for the non-delivery of a cargo of tallow. The plaintiffs were merchants in London, and the defendant a merchant in St. Petersburg. The defendant had constituted one Higginbottom his agent in London, and Higginbottom had entered into a contract with the plaintiffs for the sale of a certain quantity of tallow. The contract was not performed, the defendant alleging that Higginbottom had exceeded his authority in making it. It appeared at the trial that disputes had arisen between the defendant and Higginbottom, and that the latter had received directions not to sell any tallow on behalf of the defendant except under certain restrictions; and it was alleged that the sale in question had been made in defiance of these restrictions. The defence on the merits was, that this change in the circumstances of the parties had induced Higginbottom to contemplate setting up for himself in the same trade as that in which he had before acted as agent for Loder; and that in fact he had made this sale on his own account. The jury found that in fact that was so, but that the plaintiff's broker at the time thought that Higginbottom had made the contract for the defendant in consequence of the long course of dealing which he had carried on upon the defendant's account. This, it was asserted, was a verdict for the defendant, but I thought that it amounted to a verdict for the plaintiff, and I directed it so to be entered. The motion for a new trial which has been made, must be refused by the Court, upon the facts, from which it clearly appears that Higginbottom had long been trading as the representative of the defendant; and that till the defendant gave notice to all the world that there was an end of the connection between him and Higginbottom, the world had a right still to consider that person as his agent. It is necessary for us to declare that we deliberately abide by the opinion that that is the correct rule. It is true that Ex parte Bolitho, and The Bank of Scotland v. Watson,f shew expressly that an agent cannot bind his principal beyond the reach of the authority conferred by the principal, but in those cases the contracting party at the time of the contract, and long before, was carrying on two different concerns; the world knew him in two different characters, and was therefore bound to enquire in what character he appeared when acting in any particular matter. But here, Higginbottom was known exclusively as the agent of the defendant having full authority so to represent himself, he formed the design of diverting a contract on the defendant's

e Buck, 100.

f 1 Dow's Parl. Cases, 40.

Superior Courts: Queen's Bench; Exchequer.

business to his own use, but the fraud of which | purpose of levying 1,0077. 118. 6d., by virtue of