accordingly, and why the defendant should not pay the costs &c., and why all proceedings in error should not be stayed &c." A Judge at Chambers had refused to interfere. Milward now shewed cause. The object of this application is to deprive the defendant of the benefit of his proceedings in error. No such application has ever been entertained, unless where collusion or concealment was shewn. The plaintiff here was in fault in taking steps after he heard that the defendant was an infant. [Cockburn C. J. There is a case of Shipman v. Stevens (a), where a statutable appearance had been entered for the defendant, who afterwards pleaded by attorney, and, when the cause was coming on for trial, it was discovered that the defendant was an infant, whereupon the plaintiff did not proceed to trial, but moved to strike out the appearance and oblige the defendant to appear and plead by guardian &c., and amend the record. It appeared, also, that, after plea, the attorney for the plaintiff knew that the defendant was an infant. There the Court said: "The plaintiff's attorney ought to have applied to the defendant to name a guardian; and, if he did not do so in six days, then plaintiff ought to have applied to the Court to oblige him so to do; and it was the plaintiffs' attorney's own fault to proceed erroneously, although no notice had been given to him that the defendant was not of full age; and if the plaintiff had proceeded to judgment, and error had been brought, and afterwards the plaintiff had moved here to have made the record right, this Court would not have done it." The Court accordingly directed the defendant to plead by guardian VOL. I. (a) 2 Wils. 50. R E. B. & S. 1861. CARR V. COOPER. 1861. CARR V. COOPER. in six days, and the record to be made agreeably thereunto. Hill J. In order to prevent further expence we ought to set aside the appearance and all subsequent proceedings, but without costs, as the plaintiff did not come soon enough after he discovered the false step.] There can be no objection to that. R. G. Williams, contrà. The making this rule absolute in its terms will not deprive the defendant of his right to proceed in error. The false step which renders this rule necessary was the wrongful act of the defendant, not of the plaintiff. The Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76.), sect. 222., enables the Court to amend in cases like the present. In Wilkinson v. Sharland (a) it was held that amendment under that Act may be made after proceedings in error have been. commenced. Parke B. there says: "I think that we ought to extend the power of amendment as far as we reasonably can, in order to prevent parties from being tripped up by technical objections." [Cockburn C. J. We quite agree with that; and if any thing erroneous appeared on this record we could correct it. But the objection here is not founded on any mere erroneous statement or technical inaccuracy, and is such that we cannot make the correction consistently with truth. The whole suit has been conducted without the intervention of any guardian of the defendant, and now you want us to put on the record an allegation that it was conducted by guardian.] In Goodright v. Wright (b), after judgment for the plaintiff in ejectment, the defendant delivered into Court a writ of error assigning his infancy for error, but the Court refused to allow it. (a) 11 Exch, 33. (b) 1 Str. 33. [Blackburn J. That was the case of an ejectment. COCKBURN C. J. We have no power to do what is here asked. There is no longer any real distinction between appearance by guardian and appearance by attorney, and it would be far better that the useless idle law creating that distinction should be repealed than that we should place an untruth on our records. The rest of the Court concurring: Rule absolute to set aside the proceed- 1861. CARR V. COOPER. END OF EASTER TERM. Vendor and vendee. Inspection of goods on delivery. Duties of broker and of shipping agent, singly and combined. ZWILCHENBART and others against ALEXANDER and others. The defendants, merchants and shipbrokers at Bristol, who had before acted as agents for the plaintiffs, merchants at Liverpool, in shipping iron, offered to them some "good old scrap iron" belonging to O., (for whom they were also acting as brokers), specifying the descriptive quality and price of the iron. The plaintiffs asked for an offer of cost and freight from Bristol to Rotterdam, and a further description of the iren. The defendants wrote and gave the description; and afterwards wrote naming a ship, and the rate of freight. The plaintiffs agreed to purchase the iron at the price proposed, but objected to the ship; and the iron was subsequently shipped at Bristol on board another ship, chartered by the defendants on behalf of plaintiffs. The sold note for the iron, sent by the defendants, was signed by O., and stated the iron to be "sold" to the defendants "for their principals," and to be "weighed and delivered alongside a vessel or vessels." The defendants received no remuneration from the plaintiffs, but received commission from O. and from the owners of the ship. The iron afterwards turned out to be of a much inferior quality to that agreed upon. In an action by the plaintiffs against the defendants for negligence in accepting and shipping at Bristol, and paying O. for, iron of that inferior quality: Held, by the Court of Queen's Bench, that the defendants were not liable: that they acted in the transaction in two capacities, viz., as brokers between the plaintiffs and O., in negotiating the sale of the iron; and, subsequently, as agents for plaintiffs in receiving and forwarding the iron: that the two retainers were distinct; and that, as shipping agents under the latter, the defendants were not bound, and had no authority, in the absence of any usage to that effect, to accept or reject, on behalf of the plaintiffs, on its arrival at Bristol, the iron of which they had previously, as brokers only, negotiated the purchase. Judgment affirmed in the Exchequer Chamber. THE declaration stated that, before and at the time of making the promises thereinafter mentioned, plaintiffs were merchants at Liverpool, and defendants were agents at Bristol, and were employed, to wit, by one H. Oatway, as his agents, to sell for him from 180 to 200 tons of wrought handpicked scrap iron (composed of, principally, nut-iron, axles, tires, ship bolts, rails and boiler plates, &c.), at 47. 12s. 6d. per ton, for certain reward, from the said H. Oatway to them, as such agents in that behalf, whereof plaintiffs had notice; and thereupon, in consideration that plaintiffs would purchase such iron from the said H. Oatway on the terms aforesaid, through and by means of defendants as such agents, and would thereby enable defendants to earn the said reward from the said H. Oatway; and that plaintiffs would employ defendants as the agents of plaintiffs to accept such iron from the said H. Oatway, and to ship it for plaintiffs to foreign parts, to wit to Rotterdam, in a certain ship to be engaged and chartered by defendants for plaintiffs; and that plaintiffs would transmit to defendants as such agents, for payment to the said H. Oatway, the price of such iron, according to the terms aforesaid, defendants promised plaintiffs to use proper and reasonable care and skill and diligence as such agents, in respect of the premises, and of the accepting and shipping of such iron. Averment, that plaintiffs, confiding in the promise of defendants, did [1860.] ZWILCHEN BART v. ALEXANDER. |