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1862.

BREMING and Others

MACKIE.

8. Similar to the last, except in substituting for the allegation of payment one of set-off, as in the 6th plea. Issue.

Lush and Honyman for the plaintiffs.
Shee, Serjt., Quain and L. Kelly for the defendant.

The plaintiffs were ship-brokers, and had chartered the ship and issued a card, on which the public were directed to refer to “Dando & Co. or Breming & Co." Dando & Chetwynd were also brokers, employed by the plaintiffs to get freight for the vessel, and in June they called on the defendant, and proposed to him to ship goods in the vessel. They afterwards agreed with Dando & Co. as to the shipment of certain goods, and Dando & Co. noted the terms on the card-payment to be in two months from shipment, There was some delay in loading ; and on the 17th August, the plaintiffs wrote to the defendant to the effect that they should hold him responsible for demurrage.

Some of the goods were “shut out;” and on the 20th August, the defendant wrote to Dando & Co., that he should hold them and their owners responsible for the loss thereby caused. In consequence of that, Dando & Co. arranged that the goods shut out should be sent by another vessel, and that the difference in freight should be deducted from the freight accounts of the former shipment by plaintiffs' vessel.

There was evidence on the part of the plaintiffs, that with the bills of lading they sent to the defendant freight notes, making the freight payable to themselves. The evidence for the defendant was, that these were returned through Dando & Co., and that the bills of lading were sent by him to them and returned signed.

There was also evidence of a conversation, in which the plaintiffs stated that Dando & Co. were only to collect the goods, not receive the freight

On the 17th August, Dando & Co. sent freight notes to

1862.

BREMING and Others

Mackie,

the defendant; and on the 6th September, got him to accept a bill for 1501. for part of the freight, dated the 24th August, and payable at two months, so as to be payable on the 27th October; the freight being due, by the agreement, on the 19th October, and discount being allowed.

On the 2nd October, the defendant gave Dando & Co. a cheque for 1141., the balance of the freight, deducting 301., allowed to him by them on account of the freight for the goods “shut out.” (There was evidence for the plaintiffs of a conversation before this, in which the defendant had notice that Dando & Co. were only agents to collect the goods.)

On the 17th October, the plaintiffs wrote to the defendants :

“ The freight being due on the 19th, we give you notice that you are not to pay the freight to Dando & Co., but that we shall call on you for it,” &c.

It did not appear that until the above letter the defendant knew that the plaintiffs were the charterers.

On the 19th October, the freight was due by the agreement,

On the 27th October, the bill given became due. It had been discounted by Dando & Co., and was paid to the holder.

The present action was to recover the whole amount of the freight, without any deduction; the sum claimed being 2941.

There was evidence for the plaintiff that it was, if not irregular, unusual for the broker to receive payment by bill before it was due, allowing discount, and that brokers employed to collect goods for a ship had not authority to receive the freight.

There was evidence for the defendant that it was usual for brokers so employed to receive the freight, and some slight evidence (that of Dando) that it was not unusual to receive it before it was due, and to make settlement of it,

1862.

BREMING and Others

MACKIE.

Tegal.

allowing deductions in account. That, however, was not stated by any other brokers called for the defendant. It was stated, however, that the commission allowed to Dando & Co, five per cent., was the usual and proper commission, both for collecting the goods and receiving the freight.

At the close of the case for the defendant,

ERLE, C. J., said, there was an end of the 7th plea, as to the plaintiffs having held out Dando & Co. as the charterers. It was clear they had not done so. Both the parties were brokers, and known to be so. The substantial defence was payment.

Shee, Serjt., urged that the plaintiffs were undisclosed principals, and that this materially affected their position and rights as against the defendant.

Lush, in reply, urged that the time for payment had been anticipated by a bill, and that the settlement was after notice, and that there was authority to arrange the allowance of the 301.

ERLE, C. J. (to the jury).—The substantial defence is payment, and as it was not a payment to them but to Dando & Co., the question is, whether they were authorized to receive payment as the agents of the plaintiffs. And even supposing you were to find this in favour of the defendant, there would still remain the question as to the 301. The case for the plaintiffs is, first, that there was in effect express notice not to pay; next, that if there was authority to receive there was no authority to anticipate the time for payment; and, thirdly, that at all events there was no authority to settle the payment by an allowance in account.

There are thus three questions for you. Was there, in effect, notice to the defendant that he was not to pay Dando & Co.? As to this there was, according to the plaintiffs' case, mutual notice before any payment, because

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there is evidence that early in August, even when the bills of lading were sent, freight notes were sent to the defendant making the freights payable to the plaintiffs, and that afterwards, before any payment, the defendant was told that Dando & Co. were only agents to collect the goods. If there was an express revocation of authority to receive payment, of course there could be none. Certainly there was on the 17th October, before the time when the freight was due, express notice not to pay Dando & Co.

Then comes the second question, whether, even if there was authority to receive payment, there was authority to anticipate the time for payment and receive the money before it was due ? If, before revocation of the agent's authority, he has received payment in the ordinary course of business, and the deblor has thus altered his position, relying on that authority, a revocation will be too late. But it is not in the ordinary course of business that an agent should receive money before it is due for his own accommodation, taking a bill and allowing discount. And if the debtor chooses thus to make a payment by anticipation, he does it at his own risk if there be a revocation of the agent's authority before the money was due.

That is the ordinary rule of law. It is for you to say whether the agents here were authorized to receive the money before it was due, in the way they did ?

Thirdly, even if so, had they authority to make an allowance as they did and settle it in account? If you find all or either of the two first questions for the plaintiffs, you must find a verdict for them for the full amount; if you find both of them for the defendant, still you must consider the third, and if you find that for the plaintiffs, you must find for them for 301.

Verdict for the plaintiffs for 2941,

1862. London Sittings.

CHAMBERS v. MILLER AND OTHERS.
Trinity Term.
When a

TRESPASS, for assaulting the plaintiff, and seizing hold banker's clerk in the ordinary of him and imprisoning him, and forcibly taking from him course of business has cashed money, &c. a cheque in the Pleas: 1. Not guilty. usual way, and has once laid 2. That the money, &c. was not the inoney of the the money down on the plaintiff. counter in re 3. That the plaintiff had wrongfully in his possession turn for the cheque, the certain monies of and belonging to the defendants, without property in the money is

the leave and licence of the defendants, and against their changed, and

will, and was about wrongfully to take the same away.

will he cannot lawfully retake it That they requested him to return the same, but he re(the case not being one of fused to do so, wherefore, as they lawfully might, they defraud or felony), even

tained him until they retook the same (a). Issue.
though there
were orders

(a) This plea is bad unless a
TK:. .

an indictment or an action for an not to cash the cheque.

man, on his own premises, may assault, the defendant showed that forcibly retake his property from it was in defence of his possession. the person of another, and it is Here, however, the plea itself alconceived that he cannot do so. leged that the plaintiff was in posThere certainly is no authority that session, and admitted an assault be can, and all principle seems the upon the person; so that the deother way, and every analogy. It fendants were very much in the has always been a principle of law same position as to the law, as if that a man may not, with personal they had gone on the plaintiff's violence, and actual force, or so as premises to retake their property : to commit or provoke a breach of as to which the law is clear, and the peace, retake his own property has been settled by many cases that from the personal possession of it would be an unlawful act. Thus, another. It was on this principle even a landlord, after the tenancy the statutes of forcible entry, in has determined, and the tenant has affirmance of the common law, promised to leave on a certain day, were passed ; et vide Newton v. cannot justify entering and reHarland, 1 M. & G. 139. On the moving him or his goods by force, same principle, it would be no jus- though if the premises are left tification on an indictment for an vacant, he might enter; Hillary assault, that it was in retaking the v. Gay, 6 C. & P. 284. And it defendant's property, for it would was to meet this very difficulty and leave the contra pacem unanswered. defect in the law, that the statutes It would be otherwise, if either on imposing penalties for holding over,

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