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Middlesex

safe without certain pre

eneral

on before the

1862.

SMITH v. DOWELL. Sittings. DECLARATION, that the plaintiff was employed by the Hilary Term. Where work is defendant as a shipwright, to do certain work for him in being carried the erection of a bulkhead, or partition, for the purpose of on, part of which is un- separating a certain space in a (vessel] (a) bunker, and so

forming therein, by means of the bulkhead, two bunkers. cautions which And the defendant, while the plaintiff was in one of the the employer promises to bunkers, and was so employed in the bulkhead, and before provide, and he goes away, the same was completed or shored up (as the defendant

ral knew), negligently filled the other of the bunkers with directions to get on with the coal, and so negligently heaped up a quantity of coal work, and in his absence against the bulkhead, which was thereby rendered dangerthe dangerous work is carried ous, and liable to fall on persons working in the first-men

the tioned bunker; which said premises the defendant then precautions have been well knew, but of which the plaintiff was ignorant, and taken, and an injury results was without the means of knowing, and by reason thereof to a workman he sustained injury, &c. engaged on another part of Pleas: Not guilty; and the usual traverses. the work, while knowing of the Parry, Serjt., for the plaintiff. danger; the latter cannot Huddleston for the defendant. recover against the employer. The plaintiff was a shipwright, and had been employed

by the defendant, a coal merchant, in making the bulkhead between two “ bunkers,” which were to be filled with coal out of a collier. While so employed, the defendant came to see how the men were getting on, and they said they wanted two “struts” to support the bulkhead. He said he would send iron ones, and desired them to get on with the work. Before the struts were put up, the defendant not being present, the plaintiff being in one bunker at work and the men pouring in coal into the other, the weight of the coal thus poured in all at once broke down the bulkhead, and the plaintiff was injured.

When the plaintiff and his witnesses had been examined,

(a) Omitted by amendment at the trial, and the next word substituted.

1862.

Smith

DOWELL.

MARTIN, B., said there was no case; on which,

Parry, Serjt., called the defendant, who said he had given general orders to get on with the work, and to fill the bunker when it was safe; but he was not present at the time.

Thereupon, Martin, B., held there was no evidence of any personal negligence on the part of the defendant, or of any personal direction by him to do the act which caused the injury, and that, therefore, the plaintiff could not recover against his employer for the result of negligence in his fellow servants.

Nonsuit (a).

(a) In Easter Term Purry, Serjt., moved the Court, but took nothing; it appearing that the plain

tiff knew the coal was being poured
in, and it not appearing that the
defendant did know of or direct it.

ader

bank.

GRAHAM AND ANOTHER v. WEBB.

London Sittings.

Trinity Term. ACTION by assignees of one Brook, a bankrupt, for the Where a trad

had assigned conversion of goods of the bankrupt before the bankruptcy, his stock as se

curity for an and for money had and received.

advance to be Pleas: Not possessed, not guilty, and never indebted.

repaid by in

stalments, with Hawkins and Peurce for the plaintiff.

power to enter and seize, in

default of payLush, Denman and G. Harrison for the defendant.

ment of any

instalment, and In December, 1856, the bankrupt entered into an agree- the assignee, ment for a partnership with the defendant, a private gen

ruptcy, entered tleman.

on default;

but in conseIn March, 1857, the defendant declined it. Between quence of the that time and May he made no advances.

trader being

sued by On the 15th May, 1857, the bankrupt executed to the another cre

ditor, and defendant a deed, reciting that it was in consideration of afterwards and

before bank. 1,0001. lent and advanced, the receipt of which the grantee, rup the defendant, acknowledged, and which was to be paid

there was no by instalments of 1001., provided that, if an instalment case to entitle

the assignees to recover.

eld, that

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GRAHAM

WEBB.

1862. should remain unpaid fourteen days, then the whole should

become due. The deed then assigned to the defendant all and Another the trader's stock now or at any time during the con

tinuance of the security to be acquired by the trader,
and all debts then or at any time to become due to him
in the course of his business. Proviso, that if default
should be made in the payment of the 1,0001., or any in-
stalment thereof, the defendant might enter into possession
or receipt, and sell, &c.; but that, until notice from himn in
writing, that he intended to realize the security, the as-
signor might sell and deal with the stock. Proviso, that
in case of sale the proceeds should be in trust to pay
defendant his debt, and the residue in trust for the
assignor.

By another deed of the same date the trader's freehold premises were assigned as security for 7001. By a third deed, of same date, the stock was further charged with the 1,0001.

Before then, the bankrupt (who was called for the plaintiff) had received advances from the defendant, which were applied for business purposes.

Afterwards, further advances were made to the amount of 1,1251.

On 25th November, 1859, a creditor sued the trader, and he went to the defendant about it. The defendant said he would take the property and allow the trader 21. a week to carry on the business, and so protect himself, the trader, and his creditors.

On the 28th November, the trader went away.

On the 29th November, 1859, the defendant took possession, the stock, &c., being then worth about 1,000l. ; fixtures and furniture, 3501.

The trader took no further part in the business beyond collecting some debts for the defendant.

On the 17th January, 1861, the defendant sold the stock, &c., and realized less than his claim.

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On the 2nd February, 1861, there was a petition of bankruptcy against the trader by Messrs. B., to whom he owed nearly 5001., the earliest item of which had accrued in 1859, long after the deed.

On the 6th February, 1861, there was an adjudication of bankruptcy.

On the 7th February, the assignees were appointed.
On the 11th June, the action was brought.

At the time of the bankruptcy the trader owed about 1,0001., including the defendant's claim.

Martin, B., thought there was no case. The Bill of Sales Act had no application. The defendant merely took possession of what was his own, and had a right to.

The plaintiff then called the defendant, who stated, that before the deed he had advanced 1,1251. He admitted that since the bankruptcy he bad received debts to the amount of 811.

Martin, B., thought there was no case, and said he should direct a verdict for the defendant, subject to leave to move to enter a verdict for the plaintiff for 811. Accordingly there was a

Nonsuit (a). (a) Subject to the leave reserved.

JONES v. GREEN.

Sittings after

Trinity Term. INTERPLEADER: the issue being between claimant, Where A. and

B. had lived as plaintiff, and execution creditor as defendant.

together openly

as man and Collier for the plaintiff.

wife ; but B.

had been al. Brett and Needham for the defendant.

lowed by A. to

deal with furni. The plaintiff claimed under a bill of sale, dated in Oc

Ce ture as her

own; and she had assigned them for valuable consideration, and a creditor of his had afterwards taken them in execution :-Held, in an interpleader issue, that it was for the jury, first, whether the goods were his or hers (which would partly depend on whether they were married), and next, whether, if they were his, he had allowed her to deal with them as hers, in which case he, and any creditor of his, would be estopped from setting up that they were his.

1862.

JONES

GREEN.

tober last, given by one Madame H., and there was some
evidence on the part of the plaintiff that she was in posses-
sion at the time, though it came out that one G. was tenant
of the house where the goods were at the time, and the
fact was that she and he lived together there.
Madame H. was not called for the plaintiff.

It was admitted that her bill of sale was for good consideration.

The evidence for the defendant was that G. got bim to discount a bill of exchange (on which the judgment had been recovered) which came due on the 28th October (after the bill of sale), and offered him the goods in question as security for so doing, representing himself as the owner of them. The bill not having been paid, judgment had been recovered on it, and this was the judgment under which the now defendant had put in the execution on the goods. And the evidence for the defendant was that G. and Madame H. lived together as husband and wife, and that she represented bim as her husband, and was introduced to the plaintiff as his wife.

Collier said his client, the claimant, (whose security was before the judgment, and even before the debt,) claimed through the woman; and that G. was estopped from denying that the goods were hers.

Brett urged that, on the contrary, he was estopped from denying that they were his.

BRAMWELL, B.— It must go to the jury. There will be two questions for the jury. First, whether the actual property was in him, or in her, which will depend on who was apparently in possession, and whether they were man and wife. Next, “assuming that the property was in him," still, if he so conducted himself as to allow her the apparent property, and the actual disposition of it, he, or any creditor of his, cannot be allowed to make away with it.

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