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1862.

. Coram Byles, J. London Sittings.

CHIDLEY v. NORRIS. Trinity Term. When one ACTION by an attorney for costs. man employs another to do

Plea: never indebted. work for a third party, for Beasley for the plaintiff, whose benefit, it is known, Keane for the defendant. the work is to be, and such The business was done in taking the defendant's sons third party gives instruc. through the Court of Bankruptcy. tions about it;

The case for the plaintiff was that the defendant came to even, primá his house late one evening and told him of his sons' diffifacie, an implied contract culties, and asked him-or, as the plaintiff said, “inin the first employer to pay; structed” him—to take them through the Court, and that

" he agreed to do so on this retainer. is whether, on the whole, he Next morning the sons came to the office, and gave the led the person employed to necessary instructions. understand that he, and

And the case for the defendant was, that he had merely not the third

proposed to the plaintiff that he should undertake the busiparty, was to pay for the ness for his sons, and by way of introducing them to him.

And the defendant swore that he asked the plaintiff to do the business for them.

there is not

work.

Byles, J. (to the jury).Primâ facie when one man employs another to do work, the employer is liable for it. But there are cases where the employer does not prima facie create that liability: as where it is known that a third party is to receive the benefit of the work. When one man employs another for his own benefit, the rule of law may be applied, that a promise is implied, on his part, to pay.

But where one person employs another, or proposes that another shall be employed, not for his own benefit, but for the benefit of third parties, then, to raise an implied promise on his part to pay, he must have led the other to understand, by words or conduct, that he was to be the pay

1862.

master. Was that so here? or was it not? In the one case, find for the plaintiff; in the other, for the defendant.

Verdict for the defendant.

CHIDLEY

NORRIS.

COOKE v. HADDON.

London Sittings. TROVER, for four cases of champagne.

Trinity Term. Pleas: not guilty and not possessed, and also a plea of A creditor who

loses or dislien.

poses of a

pledge loses Laxton and Eyre Lloyd for the plaintiff.

his lien, and

the pledgor Barnard for the defendant.

can recover its

value without The action was in trover for the recovery of four cases of deducting the

debt due. champagne, deposited with defendant, a money-lender, by way of collateral security for a loan of money, for which, also, a bill of 251. was given by the plaintiff. The sum actually received by the plaintiff was 181. 198., and in respect of the bill several payments were, from time to time, made for interest, renewal, and in liquidation of the principal sum ; but eventually a judgment was obtained against the present plaintiff, and execution was put into his premises in Farringdon-street, where he kept a refreshment-. room, for the balance, under which 11l. 7s. was realized. Plaintiff then called on defendant and demanded the champagne, and was by him referred to a person named Staff, in whose possession the wine was alleged by the defendant to be. Upon application to Staff plaintiff was informed by that person that the return of the wine was impossible, as part of it had been drunk.

For the defence it was contended that the right of lien still subsisted, inasmuch as the full amount due upon the bill bad not been realized under the execution, owing to a mistake of the defendant's attorney, by whom credit had been given in respect of a sum of 51, twice over.

The learned Judge, in summing up, told the jury that when a deposit of goods was made by way of security for

1862.

COOKE

HADDON.

a debt, it was the undoubted duty of the pledgee neither
to use nor in any way to dispose of the goods so deposited,
and that by so doing he would forfeit bis lien. Here,
therefore, the wine having been drunk, the plaintiff, inde-
pendent of any question as to the amounts paid on ac-
count of the bill, was entitled to recover the value of the
pledge. The other question for their determination was,
as to damage, whether the payments which had at different
times been made (the account between the parties being
somewhat complicated) sufficed to discharge the debt.
The jury found a

Verdict upon both issues in favour of

the plaintiff, assessing the value of the wine at 201.

London Sittings.

SWABY v. VALLEZ. Trinity Term. When time has THIS was an undefended action. been gained by a false state- Horace Lloyd, who appeared for the plaintiff, stated, in ment in an action which bis opening, that the attorney for the defendant had gained turns out to be

be a month's time by alleging that he had instructed counsel immediate ... to defend, but that it had been discovered that the learned execution will be granted and gentleman named by him knew nothing whatever of the the attorney censured.

matter, and that the assertion had been made for the purpose of delay.

The learned counsel having proved his case,

BYLES, J., granted immediate execution, and remarked that he hoped that a similar proceeding would never again be brought under his notice, and that the conduct of the attorney for the defendant would not become a precedent.

and

1862. BREMNER AND OTHERS v. DANDO AND ANOTHER.

London Sitlings.

Trinity Term. ACTION for demurrage.

Where in an Plea: never indebted.

action for demurrage, on a

contract to load Karslake and Honyman for the plaintiffs.

a general

cargo, the shipParty, Serjt., and Barnard for the defendants.

owner having

liberty to load

int a certain On the 23rd May, the charter-party was entered into a

cicu quantity of iron that the ship should load a cargo of general merchandize as dea

and the defence (the shipowner having liberty to ship 200 tons of iron in turned on the

time when the the ship, freight free, no other dead weight to be shipped), loading of the and therewith proceed to Table Bay and deliver the same,

iron was combeing paid a lump sum of 6801. freight; the charterers to be

thought that allowed thirty-five working days (if the ship should not be this had not

been anticisooner despatched) for loading ;. to be discharged with all

all pated by the despatch, &c.

plaintiff, he

adjourned the On the 31st May the ship was ready for loading, and trial till the

morrow, to the loading of the iron commenced.

enable eviOn the 3rd June the shipowners gave notice to the

dence to be

adduced to charterers that the lay days would commence next day. contradict the

evidence for On the 6th June, according to the case for the plaintiffs, the defence on

that point. the ship was ready to receive measurement goods.

On the 10th June, according to the case for the plaintiffs, the shipment of the iron was completed.

(On the 20th June, according to the case for the defendants.)

The iron was railway iron, for Kurrachee.

On the 5th July the defendants commenced loading their cargo.

On the 27th July they completed their loading.

And of course, reckoning the lay days from the 20th June, there would be no demurrage due; obviously the iron must go in first, both as being dead weight and as being destined for Kurrachee.

1862. BYLES, J., said the point was well worthy of considera

tion, and be should reserve it on condition that the case BREMNER and Others should not go further. DANDO

(To this condition both parties assented.) The iron was and Another. to be loaded by the shipowners, the plaintiffs. There was

a great deal in the point.

The stevedore and other witnesses were called to prove that the loading of the iron was not complete until the 20th June; and that, before that day, the captain gave the stevedore directions not to begin loading the measurement cargo until the loading of the iron was complete (as it would be inconvenient), and that he told the defendants so, and, on the 20th, gave them notice that the loading of the iron was completed.

It was admitted that it was necessary that the iron should be loaded before the measurement articles.

On the 29th there was a claim by the plaintiffs for nine days' demurrage, at 41. a day-total, 361.

The case for the plaintiffs had closed, without its appearing distinctly when the iron was loaded ; and

Parry, Serjt., objected that there was no evidence as to that, and therefore no evidence that the delay in loading the other cargo was through the default of the defendants.

BYLES, J., thought it sufficiently appeared at present that demurrage was due.

Parry, Serjt., then opened a defence founded on the fact, which he proposed to prove, that the shipment of the iron was not completed until the 20th June. He contended that, on the construction of the charter-party, coupled with the fact as to the destination and position in the ship of the iron, that the lay days did not begin until all the iron was loaded.

Karslake, for the plaintiff, applied for an adjournment, to enable them to adduce evidence in contradiction of this case, on the ground that it had come by surprise upon

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