UPSTONE and Another v. MARCHANT.

A bill was in fact drawn on the 21st day of December for 211. payable two months after date ; but on the face of it purported to bear date on the 31st: it was held to require only a stamp of 2s., which is imposed by 55 G. 3, c. 184, on bills for that sum, not exceeding two months after date. The word "date," as there used, meaning the period of payment expressed on the face of the bill.

DECLARATION by the endorsee against the acceptor of a bill of exchange, alleged to have been drawn on the 31st December, 1822. At the trial before ABBOTT, C. J., at the Middlesex sittings after last term, it appeared that the bill was in fact drawn on the 21st December, by one John Bucks, for 217. 9s., payable to his order two months after date, and endorsed by him to the plaintiffs, and accepted by the defendant; and that it was delivered to the drawer. After it had been in his hands for a few minutes, the date of the bill was altered from the 21st to the 31st, at the request of the acceptor. The bill bore only a twoshilling stamp. It was objected at the trial, that as it was in fact drawn on the 21st, and the date of it altered to the 31st, it thereby became payable more than two months after the day on which it was drawn, and therefore that a stamp of *2s. 6d. was required. The 55 G. 3, c. 184, schedule title 11] Bill of Exchange, required a stamp of 2s. for bills for sums exceeding 201. but under 301., not exceeding two months' date; but when they exceed two months' date; then a stamp of 2s. 6d. Here the bill had two months and ten days to run, from the 21st, the day on which it was drawn. The lord chief justice overruled the objection, and the plaintiff had a verdict. Marryat now moved for a new trial, and reurged the objection; but the Court were clearly of opinion that the word "date" in the stamp act was intended to denote the period of payment on the face of the bill itself, and therefore refused the rule. Rule refused.(a)

(a) The same point was decided at Nisi Prius in Peacock v. Murrell, 2 Stark. 558.

SCRACE, Gent., one, &c., v. WHITTINGTON, Gent., one, &c. The attorney to a commission of bankrupt applied to the attorney of a mortgagee of premises belonging to the bankrupt to join in the sale of the mortgaged premises. The mortgagee having consented, her attorney requested the bankrupt's attorney to prepare, on the part of the mortgagee, requisitions to the commissioners of bankrupt to ascertain the amount of principal and interest due upon the mortgage, &c. The latter did so. The sale did not afterwards take effect. In an action brought by the bankrupt's attorney against the mortgagee's attorney for the amount due for the business done, was held that the question was properly submitted to the jury, whether the credit was given to the defendant; and the jury having found that it was, that the attorney was liable, although at the time when the business was done it was known to be done for the benefit of the mortgagee.

ASSUMPSIT for money due to the plaintiff, for work and labour, care and diligence, journeys and attendances, as an attorney and solicitor; and for fees due *12] and of right payable to him, with the usual common *counts. Piea, general issue. At the trial before ABBOTT, C. J., at the Middlesex sittings after last term, the following facts appeared in evidence: The plaintiff resided at Bath, and was solicitor to a commission of bankrupt issued against one Budget, of which Brine was assignee. The defendant resided at Chipping Sodbury, and was solicitor to Miss Smallcombe, who was a mortgagee of cer tain premises belonging to the bankrupt. The plaintiff applied to the defendant to advise his client to join in the sale of the mortgaged premises. The defendant afterwards informed the plaintiff that Miss Smallcombe had consented to join in requiring the sale of the estate. These conversations took place at Bath. The defendant being absent from home, requested the plaintiff to prepare the necessary papers on the part of Miss Smallcombe, and to expedite the sale. The latter did so; and prepared requisitions from Miss Smallcombe to

the commissioners of bankrupt, to ascertain the amount of principal and interest due, and to order a sale of the bankrupt's effects, and also an affidavit of debt. Miss Smallcombe signed the requisition, but never had any communication with the plaintiff. The sale did not take effect, and the plaintiff claimed of the defendant the amount of his bill for business done on that occasion. It was contended, on the part of the defendant, that as there was no express undertaking on his part to be personally liable, and as it was known at the time when the business was done that Miss Smallcombe was the principal and the defendant only an agent, the latter was not responsible.

The lord chief justice was of opinion that this case formed an exception to the general rule, that agents are not liable upon a contract made by them in that character, *when the name of the principal is disclosed at the time of the [*13 contract, because it was the usual course of business between attorneys, when employed by one another, to look for payment to the attorney and not to his client. This was universally the practice between country attorneys and their agents in town; and he therefore told the jury, that if they thought upon the evidence that the plaintiff had given credit to the defendant for the business done, they should find a verdict for the plaintiff. The jury having found for the plaintiff,

Campbell now moved for a new trial, and contended that this case did not form any exception to the general rule. In Hartop v. Juckes, 2 M. & S. 438, and Hart v. White, Holt, N. P. C. 76, it was held, that an attorney who sued out a commission of bankrupt was not to be regarded as a principal, so as to make him liable to the messenger under the commission. Burrell v. Jones, 3

B. & A. 47, and Iveson v. Conington, 1 B. & C. 160, only establish, that an attorney may, by an express undertaking, make himself personally liable for the debt of his client. Here there was no express undertaking. The defendant, therefore, in this case, is not liable, although the plaintiff gave him credit for the business done, for he had no right to charge him with it.

Per Curiam. The question was properly left to the jury. It is a common practice for one attorney to do business for another. The attorney for whom the business is done generally makes the other some allowance out of the profits. The attorney who does the business universally gives credit to the at[*14 torney who employs him, and not to the client for whose benefit it is done. An attorney doing business for another attorney may therefore give credit to that person to whom it is given in the usual course of such business, viz., to the attorney and not to the client. Here the jury have found that the credit was given to the defendant; and the law, therefore, will, from the usage of the business, raise an implied contract on the part of the latter to pay. If an attorney in such a case intends not to be personally responsible, it becomes his duty to give express notice that the business is to be done upon the credit of the client.

Rule refused.

JOHN MORGAN, Assignee of the Estate and Effects of JOHN JONES, a Bankrupt, v. WILLIAM PRYOR.

In an action by the assignees of a bankrupt who had obtained his certificate, and released the surplus of his estate, the bankrupt is a competent witness to prove the handwriting of the commissioners in order to identify the proceedings taken under the commission against him. DECLARATION on a policy of insurance effected by Jones before his bankruptcy. Plea, general issue. At the trial before ABBOTT, C. J., at the London sittings after last Trinity term, in order to establish the plaintiff's title to sue, the solicitor under the commission against Jones was called to produce and prove the proceedings before the commissioners; but it appearing that he was the petitioning creditor, he was rejected. The bankrupt, who had obtained his

certificate and released the surplus, was then called to identify the proceedings as those taken under his commission, and was asked to prove the handwriting of the commissioners to the several documents. It was objected for

*15] the defendant, that the bankrupt was incompetent, as he came to support his commission. The lord chief justice overruled the objection, and the plaintiff obtained a verdict; but the defendant had leave to move to enter a nonsuit. In Michaelmas term a rule nisi for entering a nonsuit was granted, against which

The Solicitor-General and Parke now showed cause. The bankrupt was a competent witness to prove that for which he was called. He did not give evidence as to any fact necessary to support the commission, but merely identified the proceedings as those taken under a commission issued against him, and proved the handwriting of the commissioners, which was in fact unnecessary. It may be collected, from Chapman v. Gardner, 2 H. Bl. 279, and Flower v. Herbert, Ib. n., that a bankrupt has been held incompetent to prove any fact in support of the commission, on the ground that the lord chancellor would, on application to him, supersede it, if the assignees in an action at law were unable to establish the bankruptcy; but it cannot be supposed that a commission would be superseded merely for a defect of proof as to the identity of the party named in the proceedings under the commission. It is even doubtful whether the proceedings were not made evidence by the mere production of them by the solicitor to the commission; for in Rex v. Netherthong, 2 M. & S. 337, a rated inhabitant of a respondent parish produced a certificate given by the *appellant parish, and it was received without further evidence, as com

*16] ing from the proper custody.

Scarlett and F. Pollock, contrà. It is too late now to inquire into the principle upon which a bankrupt has been considered incompetent to support his commission. Whatever that principle may be, it is an invariable rule in practice, that a bankrupt cannot prove any fact necessary for that purpose. If the bankrupt in this case be held competent to prove the identity of the documents produced, he is in fact admitted as a witness to prove the whole bankruptcy; for through his testimony the proceedings were made evidence. Suppose a trader, during his absence from home, wrote a letter explaining the cause of it, why might he not, if admissible here, be admitted after bankruptcy to prove his handwriting to that letter? Or if a petitioning creditor's debt depended on the bankrupt's signature to an account, or a bill of exchange, why might he not be called to prove it? But it is quite clear, that in those cases his evidence could not be received. The 49 G. 3, c. 121, s. 10, only meant that the facts set forth in the proceedings should be considered as proved by them. The proceedings themselves must still be identified, and the bankrupt was no more competent to do that than to prove the several facts detailed in them. But it has been urged that the solicitor to the commission was the person in whose custody the proceedings would properly be, and that they were made evidence by the mere production of them by him. He however, being interested, was rejected on the voir dire; and therefore what he said was not evidence in the case.

He

*17] ABBOTT, C. J. I am of opinion that this rule must be discharged. The motion was made on the ground that the bankrupt was improperly admitted at the trial as a witness to prove the identity of the proceedings under the commission against him. The bankrupt had obtained his certificate, and released the surplus of his estate; he therefore had not any immediate interest in the event of the suit, and for general purposes was a competent witness. rule has been long established, that a bankrupt cannot give evidence to prove any fact necessary to give validity to the commission. The 49 G. 3, c. 121,

was not a witness in the cause; and, consequently, there is nothing to show that they came from the proper custody.

VOL. IX.

3

B 2

But a

s. 10, has dispensed with certain proofs which the common law required, and has provided that the proceedings of the commissioners shall be received as evidence of the petitioning creditor's debt, of the trading, and bankruptcy, unless notice be given of an intention to dispute those matters. The bankrupt was not in this case called to prove any of those facts, but merely the signature of the commissioners. The validity of the commission does not depend upon that signature, but upon the facts contained in the depositions to which the signature is subscribed. To prove that signature he certainly was competent, for the signature was not necessary to support the validity of the commission.

BAYLEY, J. I am of opinion that the bankrupt was a competent witness to prove that for which he was called, although incompetent to prove any fact necessary to support the commission. It has been said that it is *too [*18 late now to inquire into the principle upon which a bankrupt has been held incompetent for that purpose. I think it is also too late to extend the rule beyond the letter of former decisions. It appears to me that the rule was founded upon the principle of interest in the bankrupt. Before the 49 G. 3, c. 121, was passed, the assignees of a bankrupt were bound to produce witnesses to prove the trading, the petitioning creditors debt, and the act of bankruptcy; and if they were unable to do that, it formed a ground upon which the lord chancellor might possibly supersede the commission. That would render the certificate inoperative; and therefore the bankrupt was considered interested in the support of the commission. But merely failing to prove the handwriting of the commissioners, is not a ground upon which the lord chancellor would think of superseding a commission. The principle upon which the former decisions proceeded does not then apply to this case, and the bankrupt was properly received as a witness.

HOLROYD, J. I think that if we held the bankrupt to be incompetent as a witness in this case, we should go a step further than any former decision. The general rule is, that a witness is competent unless interested in the event of the suit; and the criterion as to that is, whether the verdict can be given in evidence, either for or against him, in any other proceeding. Here the verdict would not be evidence, either for or against the bankrupt; he is not, therefore, within the general rule. But there are a few anomalous cases in which that criterion is not decisive as to the admissibility of a witness; and accord[*19 ingly it has been held, that in an action by assignees, although the bankrupt may be a witness for other purposes, yet he cannot prove the act of bankruptcy, trading, or petitioning creditor's debt, because those circumstances are necessary, not only to the action, but to the commission itself. The case in 2 H. Bl. shows that the bankrupt was considered interested in proving each of those tacts, lest proceedings should be had to supersede the commission; and for that reason he was considered as incompetent. Here the bankrupt was not called to prove those facts themselves, but something which would have the effect of letting in other evidence of those facts; and the failure to prove that other matter, would not be likely to affect the commission. For these reasons, I think, that in rejecting the bankrupt in this case, we should be going beyond the old principle; and, consequently, that the rule for a nonsuit must be discharged.

BEST, J. The principle upon which bankrupts have been considered incompetent to give evidence in support of the commission, may be collected from Flower v. Herbert I cannot, indeed, agree with that principle, because I think that the lord chancellor would not supersede a commission in consequence of any thing that passed in this court, but would himself inquire into the matter. I should, nevertheless, feel bound by that authority, if this case were precisely similar. But it is not so; and for the reasons already given, I think we should go far beyond the old rule, were we to hold that the bankrupt was not compe

ent to identify the proceedings, by proving the handwriting of the commissioners. Being of opinion that the rule ought not to be extended, I agree *20] in thinking that the plaintiff is entitled to retain the verdict.

Rule discharged.

LATHAM and Others v. RUTLEY and Others.

Declaration, that for certain hire and reward defendants undertook to carry goods from London and deliver them safely at Dover. The contract proved was, to carry and deliver safely (fire and robbery excepted: Held. that this was a variance.

ASSUMPSIT against the defendants, common carriers between London and Dover. The declaration stated that the plaintiffs, at the request of the defendants, delivered to them a parcel of country bank notes of great value, to wit, &c., to be carried from London to Dover, and there delivered; that the defendants in consideration thereof and for certain reward in that behalf, undertook to deliver them safely, but that through their negligence the parcel was lost. Plea, general issue. At the trial before ABBOTT, C. J., at the London sittings after Trinity term, 1822, it appeared that the plaintiffs were bankers at Dover, and were in the habit of sending Bank of England notes to their correspondents in London to take up their own notes and bills, and of receiving the latter in exchange by the wagon of the defendants. When parcels were delivered to be conveyed to London, the defendants gave a receipt to the plaintiffs, engaging to deliver them safely (fire and robbery excepted.) No evidence was given of any special contract respecting the carriage of parcels from London to Dover. In May, 1820, the parcel in question was booked at the wagon-office in London, and was stolen from thence, the door being left open. It was objected for the defendants, that the contract for the carriage of *parcels from London to Dover must be

*21] taken to be the same as that for the carriage from Dover to London, and that the contract proved was not the same as that stated in the declaration. The lord chief justice left it to the jury to say whether the contract was in both cases the same; and, if so, whether this was a loss by robbery. The jury found that the contract for the carriage of this parcel was subject to the excep tion of fire and robbery; but that the loss was not by robbery, within the meaning of that exception; and a verdict was taken for the plaintiffs. In Michaelmas term Scarlett obtained a rule to enter a nonsuit, on the ground of a variance between the contract found by the jury and that stated in the declaration, against which

The jury

The Solicitor-General, Denman, and Kaye, now showed cause. having found that the loss was not by robbery within the meaning of the contract, the plaintiffs are entitled to retain the verdict. The action is founded on the common law liability of carriers; and the proviso introduced in their favour does not alter the nature of the contract to be declared upon: but if the loss had happened by either of those causes, that was matter of defence to be established by evidence. [HOLROYD, J. It does not appear that the defendants received the goods upon their common law liability.] The defendants must rely upon the technical meaning of the word "exception," as opposed to proviso; for in Clarke v. Gray, 6 East, 564, it was held that a provision that the carrier should not be responsible for more than 57. did not form any part of the contract itself, and need not be noticed in the declaration; and in Cot

*22] terill v. Cuff, 4 Taunt, 285, and Miles v. Sheward, 8 East, 7, it was held

sufficient to state the consideration, and so much of the defendant's promise as could be proved to have been broken.

ABBOTT, C. J. The distinction attempted to be established between an exception and a proviso is very subtle, and was not relied upon at the trial. The question there made was, whether the defendants carried parcels for the plaintiffs from London to Dover, and from Dover to London, upon the same terms;