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C. P.]

Re BLAIR; Ex parte WARING-LBA v. SAXBY AND ANOTHER.

GROVE, J.-In order to grant an application like the present, it must be shown that the applicant had reliable ground for expecting, and a right to expect, that the promise, upon the strength of which he acted, would be performed. I find nothing in the present affidavits to satisfy me that such was the case here.

ARCHIBALD, J.-I am of the same opinion. There is nothing here which comes up to the circumstances of the previous cases in which an applicant has been successful. There is an absence of anything to show reasonable ground for expectation that the applicant's brother would pay the debt owing. Rule refused.

Upon a subsequent day the application was renewed by Morten, upon the strength of a further affidayit by the wife of the applicant's brother. It stated that the deponent's husband was in possession of an income of 300l. a year, or thereabouts; that he had left England for the purpose of procuring certain legal evidence, which he had been instructed to obtain, and was not expected to return for some months; that the deponent's husband had spoken to her of his debt to his brother, and of his intention to discharge the same in the spring of 1874, but that, at that time, he met very unexpectedly with considerable reverses in his business, which, to the deponent's knowledge, would prevent him from discharging the debt-the principal cause of the reverses being the sudden withdrawal of the candidature for a Parliamentary election (at the General Election of 1874) of a gentleman for whom the deponent's husband was agent. But the court again refused the application. Rule refused.

Attorneys for the applicant, Mardon and Morten.

Saturday, June 12.

Re BLAIR; E parte WARING. Acknowledgment by married woman-Affidavit verifying certificate-Omission to file-3 & 4 Will. 4, c. 74, 8. 85-4 Reg. Gen. H. T. 4 W. 4. B., a married woman, joined in selling land in 1844. The necessary certificate of acknowledgment and affidavit of verification were signed and sworn, but not filed, as required by the Fines and Recoveries Act and rules thereunder. A successor of the purchaser having resold in 1875, the defect in title was discovered, and the intending purchaser declined to complete unless it should be remedied. B. had died in 1857:

Held, that the certificate and affidavit might be filed nunc pro tunc.

THIS was an application for leave to file certificate of acknowledgment and affidavit of verification verifying the acknowledgment of Margaret Blair of a certain deed dated 11th Feb. 1845. The circumstances under which the application was made sufficiently appear from the headnote. The affidavits in support, mutatis mutandis according to the circumstances of the case, did not substantially differ from those in Re Packer (22 L. T. Rep. N. S. 407) (a), except that in the present case there was no affidavit by the husband.

F. M. White submitted that the purchaser refused to complete till the fault in the title was

(a) In Re Packer the court granted the application with considerable hesitation.

[Ex.

cured, and that the court would make the order prayed, after the analogy of

Ex parte Stevens, 3 Hodges 13;

Re Packer, 39 L. J. 238, C. P. ; 22 L. T. Rep. N. S. 407 In the latter case (the report of which contains the material enactments and rules at length) the facts were these: A married woman, since deceased, duly acknowledged an indenture according to the provisions of 3 & 4 Will. 4, c. 74, s. 85, and a certificate was duly signed by two commissioners, since deceased, who received the acknowledgment; but it was discovered twelve years afterwards that no affidavit of verification had been made at the time, and that the certificate had not been filed. Upon the production of affidavits by the husband and a practising attorney, the latter of which contained all that was required by the Act, but the further matters required by Reg. Gen. H. T. 4 Will. 4 being certified by the husband only, and all other parties who had knowledge of them being dead, the court allowed the certificate to be filed.

Lord COLERIDGE, C.J.-There has been thirty years' undisputed possession under the original conveyance executed by Mrs. Blair. This application may be granted. Rule absolute to file.

Attorney for the applicant, F. C. Sheppard, for Fearenside and Son, Burton, Westmoreland.

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In an action brought upon an indenture licensing the defendants to manufacture certain gates upon a patented principle, in which the defendants covenanted to pay certain royalties upon all gates manufactured by them according to the said principle, and to deliver quarterly statements of the gates so manufactured by them to the plaintiff, and to stamp the gates so manufactured by them,. and not to sell any gates so manufactured by them below certain specified prices, the court refused to allow interrogatories to be administered to the defendants, asking the number of gates constructed by the defendants wherein the apparatus for closing or opening the gates acted simultaneously upon signals. The patent being one for an improved apparatus for closing and opening gates acting simultaneously upon signals, there being other methods besides the patented one of constructing gates so acting, and it being denied by the defendants that they had broken their covenants, interrogatories as to prices of gates sold were also disallowed, it not appearing that the plaintiff relied upon this as a substantial cause of action.

ARCHIBALD, J., sitting in chambers, having allowed the interrogatories set out below to be adminis tered to the defendants,

Aston, Q.C., on the 6th May 1875, moved for and obtained a rule nisi to set aside, amend, or vary the order of the learned judge.

The declaration alleged that the plaintiff, by a certain indenture granted to the defendants and the survivor of them, and the executors, &c., of

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such survivor, for such time as they or he should continue and carry on the partnership business under the firm of Saxby and Farmer, a full and conclusive licence and authority, for fourteen years, to make and sell gates manufactured according to the principle of a certain patent, the defendants yielding and paying therefor to the plaintiff a royalty, according to the size of each set of gates, for each set of gates which they, or the survivor of them, &c., should make during the said fourteen years upon the principle of the said patent; and the defendants covenanted thereby for themselves, &c., that they, their executors, &c., would, during the said fourteen years, stamp each set of gates so made upon the said principle with a stamp or plate; and further, that they, their executors, &c., would within three weeks after each successive quarter day during the said fourteen years, give to the plaintiff, his executors, &c., a statement showing the number of gates sold by them during the preceding quarter, and showing the size of each set of gates; and further, that they, their executors, &c., would pay certain royalties upon each set of gates made by them, according to size of each set of gates, upon the said principle; and further, that they, their executors, &c., would not sell any set of gates manufactured according to the said principle for a less sum than certain amounts specified in a schedule, and fixed according to the size of the gates.

The declaration, after alleging performance of conditions precedent, set out as breaches that the defendants did not pay royalties in accordance with their covenant; that the defendants did not duly stamp each set of gates made upon the said principle; that the defendants did not give the statements in writing so covenanted, as aforesaid, to be given; that the defendants sold gates manufactured according to the said principle for sums less than the specified amounts.

There had not been any pleas pleaded at the time of the arguing of the rule obtained by Aston, Q.C.

The interrogatories allowed at chambers were as follows, the brackets indicating the portions disallowed by the court upon the hearing of this rule.

1. Do you, and either and which of you, carry on business as manufacturers of railway signals and gates for railway crossings at Kilburn, in the county of Middlesex, or at some other and what place, and for how long have you carried on such business? Did you carry on such business at Kilburn in the month of May 1868 ?

2. Did you, or any and what person on your behalf, manufacture or erect and sell a pair of gates which are fixed at Walsall Station, in the county of Stafford, on the London and North-Western line of railway?

3. Did you, or any and what person on your behalf, and when, manufacture or erect and sell a set of four gates, fixed on the line of the London and North-Western Railway at Lichfield?

4. Similar to the third.

5. [What was the price at which you sold each of the sets of gates mentioned in the three last interrogatories?]

6. State how many sets or pairs of gates or single gates you or any person on your behalf have constructed similar in plan, mechanism, and construction to the gates at Walsall, Lichfield, &c., in the second, third, and fourth interrogatories

[Ex.

mentioned; make a schedule of the same and affix it to your answer to these interrogatories, specifying therein [the description of each gate or set of gates, the date when they were sold or erected, the person to and for whom they were so sold and erected, and the prices for which you sold the same, and] the places at which they were erected.

7. [State how many sets or pairs of gates or single gates you or any person on your behalf have constructed since the date of the indenture declared on, wherein the apparatus for opening or closing the gates acted simultaneously upon signals.]

8. How many gates have you made and sold in accordance with the specification of the letters patent since the date of the said indenture? To whom have you sold such gates and at what places are such gates erected? Specify accurately the number of gates, whether double or single sets, and the size [and at what price you have sold the same]. State also how many such gates you have in stock.

9. Have you stamped any of such gates? 10. Interrogatory as to documents.

Affidavits were filed by the defendants in support of their application for a rule nisi. They swore that the gates mentioned in the second, third, and fourth interrogatories were not made according to the principle of the patent, and that proper returns had been made of all gates made by them according to the said principle, and that the royalties due had been paid.

They also swore that one Charles Lea was the real plaintiff in the action, and that he was the patentee of a rival patent, and was a rival in trade to them, and that the action was brought to assist his trade.

That

The plaintiff and the said Charles Lea filed an affidavit in answer, alleging that returns had not been duly made, and that royalties had not been duly paid by the defendants. That the gates mentioned in the second, third, and fourth interrogatories were made on the same principle upon which certain other gates, on which royalties had been paid by the defendants, were made. they had been informed and believed that the defendants had erected other gates upon the principle of the patent, on which they had paid no royalties, and failed to fulfil their other covenants. That the gates in the second, third, and fourth interrogatories mentioned were to the best of their belief made upon the principle of the patent. That the statements as to the action being brought for any purpose other than to recover royalties was

untrue.

Benjamin, Q.C. and Anstie, appeared to show cause against the rule.-They contended that the rule in Howe v. M‘Kernan (30 Beav. 547) ought to be applied, that he who answers at all must answer fully; that the seventh interrogatory was a material one, because it would enable the plaintiff to see for himself which of the gates came within the patented principle. That even if it could be said that this interrogatory was one going to prove damages only, no objection could be founded on that, as at common law the assessment of damages took place at the same time as the inquiry into liability. That there was a claim for damages for underselling, and, therefore, the plaintiff had a right to support that claim by obtaining evidence on interrogatories. [BRAMWELL, B.-The plaintiff

Ex.]

COLE v. THE NORTH-WESTERN BANK (LIMITED).

himself makes nothing of it in his affidavit, it is evidently a claim inserted in the declaration on the mere chance of something being discovered on this head. It is a question which may annoy the defendants, and will probably not profit the plaintiff.] We will surrender the question as to prices. The eighth interrogatory, asking the places, can do no harm to the defendants, it is not, as is urged, asking for the customers' names; and, besides, this is not like an ordinary trade case, here the only possible customers are certain well known railway companies.

The Solicitor-General (Sir J. Holker) and Aston, Q.C. (Macrory with them), appeared in support of the rule.-They submitted that, though courts of common law were not to be regarded as fettered by the equity practice, still they ought not to depart from that practice without good reason. The sixth and seventh interrogatories, they contended, were put merely with a view to prove damages, and that they ought not to be allowed for that purpose as a preliminary question, whilst that of liability remained undecided. That, as to the liability, the defendants had sworn that they had paid royalties on all gates within the patented principle. The main question at the trial would be, whether gates on which royalties had not been paid were, or were not, within that principle. The plaintiff was a rival in trade of the defendants, and, therefore, ought not to be allowed to pry into his trade secrets or to investigate his mode of carrying on his business, particularly where, as here, it was probable the information was sought for some purpose collateral to the action. They cited

De la Rue v. Dickenson, 3 K. & J. 388;

Carver v. Pinto Leite, 25 L. T. Rep. N. S. 722;
L. Rep. 7 Ch. 90.

KELLY, C.B.—These cases no doubt give rise to great difficulty, as there is a preliminary question, namely, whether the patent has been infringed. If it turns out that the defendants have made no gates upon the patented principle except those on which they have paid the royalties, then these minute inquiries which are sought by some of these interrogatories will have been perfectly unnecessary, and may have done great injustice to the defendants. While it still remains uncertain whether the plaintiff has any cause of action, I am not disposed to allow inquisitorial interrogatories such as some of these. I do not think there is any settled rule; each case must be considered on its facts. In Chancery these cases may be broken up into two parts, first, an inquiry as to the plaintiff's title to recover, then one as to damages, whilst at common law the question of damage is investigated at the same time as that of liability. This is a patent for a further improvement in manufacturing gates opening and closing simultaneously with signals. Now the patented principle is not the only node of manufacturing such gates, therefore I think the seventh interrogatory is one which should, under the circumstances, be disallowed. The plaintiff has given up the questions as to the price, and properly so, because it is evidently a complete speculation on his part as to whether he will discover cases of selling below the fixed prices or not, and the defendants have sworn that they have not sold any gates within the patented principle for less than the fixed prices. The case of De la Rue v. Dickenson (3 K. & J. 388), goes on the principle that discovery is not to be granted where it may do great injury, and where it is doubtful whether

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it will do any good. The sixth interrogatory, when it goes on to ask for dates, and so forth, goes too far. The parties will be able, on the principles I have indicated, to carry out our views.

BRAMWELL, B.-The seventh interrogatory should not be allowed. Perhaps, in some way, the plaintiff ought to have the information he seeks for by it. But he must not ask, as he does in effect here, "How many gates have you made, and when ?" This would make the defendants say a great deal which might be perfectly immaterial, and not really assist the plaintiff's case in any way, but which might be a real injury to the defendants. The quantity of gates the defendants make is altogether an irrelevant matter, unless the gates are within the patented principle. We lay down no general rule, but we direct what we think should be done in this particular case. At first the plaintiff asked for what was intolerable, the prices at which the defendants sold their gates. I say intolerable, because it is perfectly clear that the claim for damages for underselling is a pure speculation, and one on which the plaintiff himself does not in his affidavit rely.

CLEASBY, B.-I adopt the rule laid down in the case of Carver v. Pinto Leite (25 L. T. Rep. N. S. 722; L. Rep. 7 Ch. 90). The rule is, that the court does not weigh in golden scales the materiality or immateriality of the discovery in considering whether the rule is to be applied, that he who discovers at all must discover fully; but there are cases in which it is important that the court should so weigh it, namely, cases in which the discovery is such as the plaintiff, though failing at the hearing, may afterwards use in a way prejudicial to the defendant. I, too, like the learned judge in that case, am not at all disposed to grant discovery when I am satisfied that it is likely to be injurious to the defendant, and am not satisfied that there is any real prospect of its being of material service to the plaintiff at the hearing. Applying then these principles, I agree that the seventh interrogatory ought not to be allowed, and I also agree that the eighth interrogatory, as altered, should be allowed. It is merely asking for the public places where certain specified gates are placed, and it cannot, in my opinion, really injure the defendants, whilst it can, and probably will, be of use or of importance to the plaintiffs.

Attorneys for the plaintiff, Worthington, Evans, and Cooke.

Attorney for the defendants, G. Faithfull.

EXCHEQUER CHAMBER.

Reported by ETHERINGTON SMITH, Esq., Barrister-at-Law.

Feb. 4 and 5, and May 12. COLE v. THE NORTH-WESTERN BANK (LIMITED). Factors' Acts (4 Geo. 4, c. 83; 6 Geo. 4, c. 94; 5 & 6 Vict. c. 39)-Agent intrusted with the possession of goods or of the documents of title to goodsAuthority to pledge-Agent a warehouseman as well as a broker.

S. carried on the business of a warehouseman, and also that of a sheepswool broker, at Liverpool. The plaintiffs, wool importers, were in the habit of sending to him bills of lading of cargoes about to arrive, requesting him to take charge of the wool as usual for their account, and send

Ex. CH.]

COLE . THE NORTH-WESTERN BANK (LIMITED).

report and valuation, following their instructions as regards sale or disposal. These wools were both goats' and sheeps' wool. S. used accordingly to land the cargoes and warehouse the wool. The plaintiffs then usually sent S. specific instructions for the sale of the sheeps' wool, which instructions he carried out in his capacity of a sheeps' wool broker, and having delivered it to the purchasers, he charged the plaintiffs with the warehouse rent for the time during which he had had the charge of it. The goats' wool he never sold, and the sheeps' wool only upon the special instructions mentioned. On this occasion, having wools of both kinds belonging to the plaintiffs in his worehouse, but having received no instructions for sale or disposal, S. obtained an advance from the defendants' bank upon giving them a letter undertaking to hold all the wool as trustee for them, specifying the cargoes, and promising to lodge warrants for the same. S. then absconded, and the defendants took possession of the wool.

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Held, on appeal (affirming the decision of the Court of Common Pleas), that S. was not an agent intrusted with the possession of goods" within the true meaning of the Factors Acts, so as to be able to create a valid pledge of any of the wool to the defendants as against the plaintiffs. In order that a person may be an 66 agent intrusted with the possession of goods" within sect. 1 of 5 & 6 Vict. c. 39, he must be intrusted with them in his character of an agent for sale, or of an agent who as such ordinarily has a power of sale or pledge. If he has an independent business as warehouseman, and he is in possession of goods intrusted to him in that capacity, the Factors' Acts do not entitle a pledgee to assume that he has been intrusted in the one capacity rather than the other; and the fact of his carrying on the two trades will not bring a pledge made by him within the protection of the Factors' Acts if it have been in fact made without the authority of his principal to sell or pledge.

ERROR from the judgment of the Court of Common Pleas, upon a special case stated by au arbitrator. The facts are set out in the report in the court below (30 L. T. Rep. N. S. 684), the question being whether one Slee was an agent intrusted with the possession of goods within the meaning of the Factors' Acts, so as to make a pledge made by him of such goods to the defendants valid as against the plaintiffs who were the real owners.

The court below (Lord Coleridge, C.J., Brett, and Denman, JJ.), gave judgment in favour of the plaintiffs, against which the defendants now appealed.

Benjamin, Q.C. (R. G. Williams, Q.C. and A. V. Dicey with him) for the defendants below the plaintiffs in error.-The court below drew as we submit a wrong inference of fact, they held that Slee was only a warehouseman, and so only custodian of the goods; but as he was the person to whom the plaintiffs sent the wool for sale, and as the latter say "Slee usually sold the sheeps' wool," he appeared to the world as the consignee of the wool from the ships. [BLACKBURN, J.-He was not consignee, the bills of lading were endorsed to him as the plaintiffs' agent to receive the goods.] The case, however, finds that he was a wool broker, and as such he must have a place to store his wool. [BRAMWELL, B. - Is there any question as to whether he was a warehouseman, as I understand the judgment of the court below proceeded mainly

[Ex. CH.

on that assumption?] It is not found in the case that he had a separate business; but he did receive wool as a warehouseman with which he had nothing to do as broker. [BRAMWELL, B.-We are to draw inferences of fact; the court is of opinion that this man was a warehouseman.] Assuming then that he was both broker and warehouseman, in what capacity did he receive these goods. He received them to report upon and value them, and it could be only as a dealer in wool that he could be asked to do this; it is no part of the business of a warehouseman, but is the especial duty of a broker. True, he was to take care of the goods, and so he received them in a twofold capacity; and, what usually followed was the sale of the sheeps' wool upon which he had so reported. Then arises the question whether under the Factors' Act he was not, as regards third persons, intrusted for sale, and the further question at common law whether he could not sell, as distinct from pledging, he being a man who was in the habit of selling particular goods, and such goods having been put into his possession by the owner. Taking the latter first, Pickering v Busk (15 East. 38), is in point, for Slee had complete apparent possesion of the goods. [BLACKBURN, J.-But the very question is whether having the goods in his warehouse gave him an apparent authority to sell, and on that Pickering v. Bush will not help you.] Here Slee had the bills of lading, and might have taken them to the bank. Having thus an ostensible right to sell, he has as against the persons who gave that ostensible authority a real right to sell. [BLACK BURN, J.-Could a railway company sell goods which are in their care and possession?] No, they do not deal in them, they have not the two capaci ties. [POLLOCK, B.-Could a watchmaker with whom a watch was left for repairs, sell it ?] No, that is not a mercantile transaction. The position here is this, a man usually sold goods for the plaintiff, on this occasion as usual he received the bills of lading, and got the goods into his warehouse and sold; yet the plaintiffs say that in this one particular case because of the want of their private instructions he could not sell. Such a want cannot be good against third persons who have bond fide bought. Then next we contend that if he could sell, the Factors' Act enables him to pledge, and on this point Fuentes v. Montis (19 L. T. Rep. N.S. 21; L. Rep. 4 C.P. 93), is an authority in the defendants' favour. [BRAMWELL, B.-Do you say that there need be no intrusting but with the possession?] Yes; if you have the ostensible authority, and are intrusted with possession, you may pledge, if you may sell, and then revocation of instructions to sell, or orders not to sell make no difference. Then taking the Factors' Acts they do give, it is submitted, a greater power to sell than was possessed at common law. If the changes in the successive Acts be noticed they will be seen to have been made to meet the decisions in various cases. The first Act speaks of persons "intrusted for the purpose of sale," the second Act "for the purpose of consignment or sale." The agent is no longer required to have authority to sell, as is seen from sect. 4. [BRAMWELL, B.-That section only gives an ostensible authority to sell, where there is a custom, where it is in the ordinary course of business provided there is no notice.] Yes, but the result is that although I do not intend to make a man my agent for sale, yet I may do so in fact by

Ex. CH.]

COLE V THE NORTH-WESTERN BANK (LIMITED).

intrusting my goods to a man whose ordinary business it is to sell. The judgment of the court below proceeded chiefly on Monk v. Whittenbury (2 B. & Ad. 483) decided in 1831, but the case is distinguishable apart from its having occurred before the 5 & 6.Vict. c. 39. There the man was a factor, but not for the plaintiff, and it was put to the jury to find under the terms of the Act, and they found that the sale was not in the ordinary course of business. [BLACKBURN, J.— The case may perhaps not be absolutely fatal to you, because he was never factor for the plaintiff; but it is strong as showing that the court construed "agent in the limited sense.] Then in 1840 was Phillips v. Huth (6 M. & W. 572), that decided that merely being in possession was not being intrusted within the Act. Then in 1842 was Phillips v. Hatfield (9 M. & W. 647, and in the House of Lords, 12 Cl. & Fin.) To meet these was the Act of 1842, and the preamble shows how it was meant to extend the facilities for safely making advances, and the first section with no such limitation as in the previous Acts speaks simply of "an agent intrusted with the possession of goods or of the documents of title to goods," and then in sect. 4 possession is made prima facie evidence of intrusting. To defeat this there must, therefore, be notice, and as to this Navulshaw v. Brownrigg (2 De G. M. & G. 441) shows that to deprive the pledgee of the protection of the Act, he must be fixed with knowledge, and no mere suspicion will amount to notice, nor will the knowledge that the agent has power to sell the goods constitute notice that he has not power to pledge them. Lamb v. Attenborough (1 B. & S. 831) was decided on the ground that it was a case where the relations of master and servant, not of principal and agent, existed. Baines v. Swainson (4 B. & S. 270) was decided under the last Act, and Blackburn, J., says, "When a man employs an agent, part of whose business it is to sell goods and receive payment as such agent, and puts him in possession of goods, he places him in the position of a man at common law having authority to sell or pledge the goods; he may have given private instructions to his agent, but unless the third person who dealt with that agent had notice of them, the owner would, at common law, be bound by the act of the agent." It is true that in Fuentes v. Montis (ubi sup.), the dicta of the judges are against the present contention, because they speak of "agent" as if it were "agent for sale;" but it was decided on a pledging which does not exist at common law, only by statute, and so it was a question whether at the particular time the pledge was made, the man was intrusted within the meaning of the Act. Then in Vickers v. Hertz (L. Rep. 2 Scotch App. 113) Lord Westbury comments on and disapproves of the factor being deemed a "factor for the sale." [BLACKBURN, J. Lord Westbury, as reported, went out of his way unnecessarily to deny a proposition which has never been mooted. The word "factor" does not occur in the Act, any more than "factor for sale."] Then it is said against us that we made the advance before we got actual possession of the goods; on that Portalis v. Tetley (L. Rep. 5 Eq. 140) is in point. The 4th section of the last Act says that a promise or contract to pledge shall be valid if followed by possession before notice. Here no notice was given between the advance and the obtaining possession of the

[Ex. CH.

goods: (Langton v. Waring, 11 L. T. Rep. N. S. 663; 18 C. B., N. S., 315.) The promise was to give up the goods when asked for, and so that there was nothing even morally wrong in forcing Slee's clerk to give them. If the defendants had a right to the goods it would not matter for the purpose of this question how they got them, even if they were liable to punishment for the mode adopted.

Herschell, Q.C. (W. G. Harrison with him) contra.-This is a case not within the Factors' Acts, nor the mischief which they were intended to prevent. The advance was not on goods or on documents of title, but merely on the promise that Slee would give them the warrants. The bank were not deceived, they would have given the money just the same if Slee had had no goods. It may be necessary also to keep distinct the sheeps' and goats' wool, as different considerations arise, and another point is that as to 114 bales, Slee never had possession of those at any time, only of the bills of lading. First then there is deposited with Slee goats' wool as warehouseman. He does not deal with this in the way of his trade at all, and how then can he deal with it so as to make it a valid pledge any more than if it were hops or iron? It is admitted that if he were intrusted as warehouseman only, he could not sell, but they say, if he sells something, no matter what, he becomes an agent intrusted within the Factors' Acts. As to the goats' wool the contention must fail on the face of it. And as to the sheeps' wool, he was not an agent intrusted, but was like the wharfinger in Monk v. Whittenbury. That case was decided before the 5 & 6 Vict. c. 39, when all the cases were passed in review, and so, as no alteration was made in the law to alter the section on which that case was decided, while alterations were made to meet other cases, it is even a stronger authority than it would have been if it had occurred after the statute. We say Slee had no power to sell at common law. The principle is. that if you will intrust goods to a man as your agent and you do not announce a limit to his authority, you must be taken to give him all the authority which the possession of such goods in his business would ostensibly give, and the only occasion on which a person can give a better title than he himself has, is when he is a factor, and is employed as such, though with perhaps some private reservation: (Wilkinson v. King, 2 Campb. 135.) But if the argument of the defendants be right, then in Monk v. Whittenbury the purchasercould have gained a good title at common law. Willes, J., on p. 276 of the judgment in Fuentes v. Montis, (ubi sup.), discussed the common law right. Next, on the construction of the Factors' Acts. The defendants have relied on the words in sect. 1 of 5 & 6 Vict. c. 39, being "intrusted with possession," simply, but a reference to sect. 4 of the same Act will show the use of the expression "intrusted with and in possession of," so that there must be an intrusting apart from and in addition to the possession. If the Act be construed as they contend, the result would be this, that if you warehoused hops with a man who was not an agent at all, but was a hop merchant, he could not sell, but if he were an agent for the sale of cotton, he could sell. [BRAMWELL, B.-But the statute contemplates a man who has no authority being able to effect a valid sale. You seem to reduce the word "agent," to "agent for

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